Veronika Fikfak argues that by amending the Illegal Migration Bill to require UK courts to ignore a potential interim measure from the European Court of Human Rights, the UK government has reached for the most drastic option, exposing its carefully fostered image of a ‘good complier’ as merely a myth. She warns against passage of the amendment, and criticises the government for taking the same path as Russia by choosing defiance over dialogue.

In late April, the government tabled a number of amendments to the Illegal Migration Bill, including an order to domestic courts to ignore a potential interim measure from the European Court of Human Rights (‘the ECtHR’) to stop someone being removed from the UK if they bring forward a legal challenge. British judges have been told that if the bill is enacted with the new amendments, it will mean that they ‘cannot apply any interim measure, aside from in the narrow route available under the bill where [the applicants] are at risk of serious and irreversible harm.’ The House of Lords Constitution Committee has raised serious concerns about the potential impact of the bill on the rule of law and human rights. In this blog, I argue that this order puts the UK on par with Russia and Poland, which have used domestic law to prevent compliance with their international obligations under the European Convention on Human Rights (ECHR). I show how both countries have sought out a direct conflict with the Strasbourg Court and how the UK – for the first time since joining the ECHR – is taking the same route. I also outline how far its behaviour goes from the usual ‘good complier’ image that the UK has carefully fostered.

Poland and Russia choose defiance over compliance

In international law, courts are notoriously dependent on states, and especially their executive branches, to enforce their judgments. Since the international community has no enforcement mechanism to compel states to comply with a decision of an international court, if a state were to refuse to do so voluntarily, the judgment would remain merely words on paper. Yet generally states have been reluctant to openly defy the ECtHR by refusing to enforce its judgments. Instead, negotiations, lobbying and delays are the standard techniques to avoid or minimise compliance. Even when countries adopt domestic laws that clearly contradict the ECHR (such as in the case of immigration legislation in Denmark or the UK’s recent bill), this is usually done under the cover that the state ‘seeks to clarify the content of obligations under the Convention’ or more boldly that it wishes to ‘test the limits’ of the ECHR. Once a judgment is delivered, the state promptly puts in place a process to comply with the judgment (such as in the case of Savran v Denmark). The intent to voluntarily comply with the ECHR is present for the majority of countries.

In rare examples, when states openly defy the ECtHR, they usually use their own domestic law as an excuse for non-compliance. Recently, for example, Poland refused to comply with an order for interim measures. The applicants were Polish judges of the Warsaw Court of Appeal who were transferred against their will from the criminal division to other divisions of that court, a move that they argued was a reprisal for applying judgments of the ECtHR and the Court of Justice of the European Union. In turn, the ECtHR ordered an interim measure requiring Poland to suspend the effects of the decisions to transfer the applicants until the final determination of their compliant. The Polish government responded by saying that the interim measure would not be respected since there were ‘no factual or legal grounds for doing so and pointing to a [Polish] Constitutional Court judgment of March 2022 questioning the authority of the European Court to intervene in cases concerning the judiciary.’

In the years leading up to Russia’s expulsion from the Council of Europe, the ECtHR had been facing intense backlash from the Russian state, manifested most palpably in the introduction of a review procedure for ECtHR judgments, empowering the Russian Constitutional Court to declare a judgment impossible to execute if it was found to contradict the ‘basic principles of the constitutional order of the Russian Federation’.

The legislation proposed by the current UK government appears to follow the same pattern as Russia and Poland. The UK is willing to ignore interim measures issued by Strasbourg and use British judges in the process. In particular, the proposed legislation provides that judges ‘cannot apply any interim measure’ the ECtHR might issue, ‘aside from in the narrow route available under the bill where [the applicants] are at risk of serious and irreversible harm.’ This means that if the ECtHR were to require the UK to stop someone from being removed whilst their legal claim was being heard on the merits in Strasbourg, domestic courts could not stop the applicant’s deportation and would have to ignore the interim measure. Any such expulsion in contradiction of the interim measure would bring the UK into direct breach of its human rights obligations under the ECHR, a fact also noted by the Constitution Committee’s report on the Illegal Migration Bill. Like Russia and Poland, the government is therefore willing to openly defy explicit instructions from Strasbourg.

The UK as a ‘good complier’ and the key role of domestic courts

The current government’s approach departs significantly from the carefully fostered image of a good complier the UK has fostered over its 60-plus year membership of the Convention. The enactment of the Human Rights Act 1998 and its entry into force in 2000 reinforced the UK’s commitment to the ECHR and compliance with the ECtHR’s decisions. As the graph below reveals, on average, the UK’s compliance rate – the percentage of adverse judgments in respect of which it has adopted remedying measures – has remained at 96%. This means that in the majority of cases, the UK has addressed the concerns raised by the ECtHR. However, the timeframe within which it did so fell considerably after the adoption of the Human Rights Act, which incorporated the ECHR into English law and empowered domestic judges to give force to it. As a consequence, ECtHR judgments were enforced much faster. Prior to the Human Rights Act coming into force, the average length to compliance was 1485 days (more than 4 years), but afterwards the average compliance speed was 1036 days, (i.e. a year shorter). The ability of UK courts to aid in the process of enforcement was therefore key in speeding up compliance and in turn securing the UK’s reputation as a ‘good complier’.

The adoption of the Human Rights Act therefore importantly impacted the capacity and availability of UK actors and processes to facilitate compliance. Domestic courts as the relevant actors were easily identifiable, as was the legal basis on which such changes could be given effect. The current bill – like the now presumably dead Bill of Rights Bill – seeks to take away the courts’ power and ability to help the state comply with its international obligations.

What are the alternatives? Compliance minimalism and settlement

Generally, when states wish to walk the fine line between compliance and defiance, they opt for delay and, ultimately, ‘compliance minimalism’, by which states adopt only the minimum measures necessary to make it look like they are complying with a judgment. It is in this context that the UK has acted as a tough negotiator in agreeing the terms as to what is acceptable to comply with an ECtHR judgement. When the UK was found to be in violation of the right to vote due to a blanket prohibition of prisoners’ voting, which disenfranchised individuals regardless of the crime or offence they committed, the UK authorities took more than a decade to come to a resolution. During this time, the UK was negotiating the ‘minimum’ measure that the judgment required at international level. The debate centred around several options focused on the length of a prisoner’s sentence. The coalition government published a draft bill in 2012 that proposed two alternatives for prisoner voting: a ban for those serving sentences of six months or more, or a ban on those sentenced to four years or more. A parliamentary joint committee scrutinising the bill proposed a ban for prisoners serving sentences of 12 months or more. Ultimately, the UK was able to agree to a much more limited proposal – that of allowing only prisoners awaiting trial, civil prisoners and offenders who were on home detention/released on temporary licence the right to vote. In December 2017, this was deemed by the Council of Europe’s Committee of Ministers to be enough to comply with the letter of the ECtHR judgment.

An increasingly popular strategy of avoiding an adverse judgement from the ECtHR is to settle applications brought by potential victims before a judicial decision is made. For the ECtHR, the settlement process operates as a workload management tool, allowing it to reduce the number of applications it deals with. For states, the settlement process allows them to avoid adverse judgments, which would stain their reputation, but more importantly also avoids decisions being made that could potentially require changes to their internal laws, policies, and structures. As a consequence, settlement has quickly become a popular way of making potential violations of human rights ‘go away’. Many European states have taken advantage of this approach. As the graph below shows, the UK only rarely makes use of settlement – at least as far as formal and readily accessible records suggest. Other countries, such as Hungary and Poland, are amongst the highest settlers of human rights applications and they settle as many cases as they lose. This difference in approach is clearly seen from the graphs below: on one side, we see the UK, where the settlement practises by the UK are minimal (with only 2008 as an exception, where we see a jump in the number of settled cases related to widower’s allowance cases).

In contrast, the Hungarian graph below shows how in 2010 the settlement practice overtakes adverse judgments, effectively halving the number of cases against Hungary that were heard by the ECtHR. In the news, the country is frequently labelled as a ‘good complier’, but this label is misleading since the country settles the cases it does not want to comply with.

Whilst I have criticised states’ decision to settle and tend towards compliance minimalism elsewhere, the aim of this blog was to show how amongst the various compliance strategies, most maintain some sort of dialogue between the state and the victims, and the state and the Court. By opting for defiance instead of dialogue, and by requiring domestic courts to ignore potential interim measures issued by the ECtHR, the UK has reached for the most drastic option, exposing the carefully fostered image of a ‘good complier’ as merely a myth.  

If you are interested in the topics discussed in this post, then the Unit recommends that you attend its annual conference, entitled The Future of the Constitution, which is due to take place on 28 and 29 June. The conference is free to access, open to all, and will include a panel discussion on the topic of the courts and the rule of law, with barrister and MP Laura Farris, Murray Hunt, the Director of the Bingham Centre for the Rule of Law, and Fiona Rutherford, the Chief Executive of Justice.

About the author

Dr Veronika Fikfak is Associate Professor in International Law at UCL’s Department for Political Science, where she leads a team of researchers studying how states comply with international human rights decisions (EU funded project Human Rights Nudge – ERC 803981). She also serves as a judge ad hoc at the European Court of Human Rights.

The featured image for this post is European Court of Human Rights (CC BY-NC-SA 2.0) by keepthebyte.