Using the latest figures, Joelle Grogan and Alice Donald examines the UK’s relationship with the European Convention on Human Rights (ECHR) system. It reveals how often and for what reasons the European Court of Human Rights (ECtHR) issues ‘Rule 39 orders’ or urgent injunctions against the UK.
It also explains how frequently the ECtHR finds that the UK has violated human rights and on what issues, and how far the UK complies with those rulings. It compares the UK’s record with other European states.
How often are ‘Rule 39 orders’ issued against the UK by the European Court of Human Rights?
‘Rule 39 orders’ (known as interim measures) are urgent injunctions issued by the ECtHR on an exceptional basis, where there is an imminent risk of irreparable harm. They are rarely issued against the UK.
Interim measures are generally issued where a person faces a risk to their life or a risk that they may suffer torture or inhuman or degrading treatment or punishment.
An interim measure prevented the first deportation flight to Rwanda in June 2022 until the lawfulness of the policy had been finally determined by UK courts. Interim measures are not solely concerned with migration cases involving the deportation or removal of individuals. For example, interim measures issued against the UK have also ordered the preservation of embryos pending resolution of a case concerning disputed consent for their use, and continuation of life-sustaining treatment for a baby, Charlie Gard, while the ECtHR considered his parents’ challenge to his doctors’ decision to end life support.
Interim measures are time-limited orders and do not prejudge the final outcome of the case in question. As there is a high bar for applicants to prove the necessity of the urgent injunction, requests are often refused by the Court.
“Since 2017, the Court has received 660 requests for interim measures in UK cases, of which it granted 15”
Since 2017, the Court has received 660 requests for interim measures in UK cases, of which it granted 15, i.e. it granted around 2% of requests, or an average of two per year. In 2023, the Court issued only one Rule 39 order against the UK, concerning an individual’s expulsion to the United States.
How does the number of interim measures issued in UK cases compare with other countries?
Between 2017-2023, the UK had the 15th highest total number of interim measures issued by the European Court of Human Rights, falling from 13th based on data from from 2017-2022.
Several states had much higher totals than the UK during this time period – 2050 interim measures were issued against Belgium, 298 against Greece, 147 against Poland and 98 against France. The majority of these measures were due to systemic problems with the treatment of asylum seekers facing life-threatening and/or inhuman conditions living rough or in inadequate reception facilities or being pushed back across the Poland-Belarus border.
How often has the European Court of Human Rights found that the UK has violated the ECHR?
There has been a downward trend in the annual number of ECtHR judgments finding violations against the UK since the Human Rights Act (HRA) 1998 came into force in October 2000. The average number in the first half of this period (2001-2011) was almost 18, while the average for the second half (2012-2023) was just over four. In 2023, just one ECtHR judgment found a violation against the UK.
Experts identify this downward trend as the ‘Human Rights Act effect’. This effect had a time lag of several years as cases relating to older violations (or alleged violations) worked their way through the domestic and Strasbourg courts.
“There has been a downward trend in the annual number of ECtHR judgments finding violations against the UK since the Human Rights Act (HRA) 1998”
The HRA incorporates ECHR rights into UK law. It was introduced as a way to ‘bring rights home’, and enable people to protect their rights in domestic courts, rather than face the time and financial costs of bringing a case to Strasbourg.
The reduction in the number of ECtHR judgments against the UK in the past decade could reflect the impact of the HRA in three ways. First, the HRA creates a legal obligation for all public bodies – such as the police, hospitals, care homes and local councils – to protect rights in all their decisions and actions, meaning that people’s rights are less likely to be breached in the first place.
Secondly, as a result of the HRA, UK courts are the first port of call for any human rights claimant, and UK judges consider human rights more explicitly and intensively than they could before. This means that fewer cases are likely to find their way to Strasbourg, because they will have been dealt with by UK courts.
Thirdly, when a case does reach Strasbourg, the ECtHR is more likely to follow the reasoning and conclusions of UK courts and the decisions of public authorities where they are informed by human rights considerations, as the HRA requires.
How does the number of violations found against the UK compare with other countries?
In 2023, the Court issued one judgment finding the UK in violation of an ECHR right. This was the 38th joint lowest alongside Latvia and Luxembourg out of 47 states (the statistics include judgments that have continued to be issued against Russia based on violations committed before its expulsion).
Twenty-two EU states had higher totals in 2023 than the UK: Romania (58), Italy (48), Hungary (36), Poland (31), Bulgaria (25), Croatia (24), Slovak Republic (17), Greece (16), Malta (14), France (12), Spain (6), Portugal (6), Austria (5), Lithuania (5), Netherlands (5), Belgium (4), Cyprus (4), Estonia (4), Denmark (3), Germany (3), Czech Republic (2) and Slovenia (2).
As a historical comparison, from its inception until the end of 2023, the ECtHR has in total issued 330 judgments finding at least one violation of an ECHR right against the UK. This represents 1.45% of the Court’s 22,676 judgments which have found at least one violation against any state.
As another point of comparison, the UK also accounts for a tiny percentage of applications currently pending before the ECtHR. Just 0.19% of the cases waiting to be decided by judges of the ECtHR come from the UK, which is the lowest per capita figure of all 46 states.
What kinds of issues have arisen in ECtHR judgments against the UK?
The first judgment to find a violation against the UK was in 1975 and concerned a prisoner’s right to access a lawyer as part of the right to a fair trial. In 2023, only one judgment found that the UK had violated a right, in this case the right to privacy due to deficiencies in the UK intelligence agencies’ regime for bulk interception of communications.
ECHR judgments have led to numerous changes in law and policy in the UK. These include the abolition of corporal punishment in state schools; establishing children’s right to claim damages from local authorities when they have been abused as a result of the authorities’ negligence; the exemption of victims of severe domestic violence from cuts to housing benefits; strengthening protection for religious freedom in the workplace; the lifting of the ban on gay people in the military; and the decriminalisation of homosexuality in Northern Ireland.
Cases which the UK has not yet implemented include those concerning the failure to protect two children from criminal prosecution despite a credible suspicion they were trafficking victims; breaches of privacy arising from the indefinite retention of biometric data of people either arrested but not convicted or with spent convictions for minor offences; and shortcomings in the UK’s secret mass surveillance regime.
What happens if a state is found to be in violation of the ECHR?
Under the ECHR, states commit to abide by judgments of the European Court of Human Rights if they find a rights violation against them. Interim measures issued by the ECtHR under Rule 39 are also legally binding.
Where the ECtHR finds a violation of a right, the state has an obligation under the ECHR to remedy the problem. This may involve taking ‘individual measures’, such as releasing someone who has been unlawfully detained. A judgment may also require the state to take ‘general measures’, where there is a problem in the law or in a widespread state practice, such as inhuman or degrading prison conditions affecting thousands of people.
The Committee of Ministers tracks what states do (or fail to do) after the finding of a violation, to ensure that the necessary measures are taken and that the violation cannot be repeated. It also ensures that states implement the terms of friendly settlements which can be reached between applicants and states at any point during the legal proceedings.
The Committee of Ministers is the intergovernmental arm of the Council of Europe, made up of the foreign ministers of the 46 member states. Lord Cameron, as Secretary of State for Foreign, Commonwealth and Development Affairs, is the current UK representative.
How does the UK compare with other countries in following (or implementing) ECHR rulings?
The UK has a relatively strong record of implementing judgments of the ECtHR. There are presently 12 UK cases pending before the Committee of Ministers (i.e. cases that have not yet been fully implemented), representing less than 0.2% of all pending cases.
97.8% of the 490 judgments and decisions (including friendly settlements) issued by the Court against the UK since the first in 1975 have been fully implemented, meaning that the case has been closed by the Committee of Ministers.
The most significant ongoing exception to this record is a group of cases that has not yet been implemented concerning ineffective investigations into suspicious deaths of individuals during the conflict in Northern Ireland, either during security force operations or with the suspected collusion of security force personnel – some of which date back more than 20 years.
Can states disregard judgments and decisions of the ECtHR?
Under international law, states cannot invoke domestic law to avoid their international obligations. Even if a power was given to disregard judgments or interim measures in national law, this would not prevent the international legal obligation from still standing.
Countries could still disregard their international obligation, but would risk the reputational damage of being seen as a country that did not respect the rule of law, and risk losing influence among other nations, particularly if they would still expect other countries to follow their international obligations.
What steps has the UK taken to disregard Rule 39 orders?
An interim measure (Rule 39 order) prevented the departure of a flight to Rwanda in June 2022. In response, the government has sought to limit the potential for interim measures to block removals.
The Illegal Migration Act 2023 gives ministers discretion to disregard ‘interim measures’ issued by the ECtHR in proceedings relating to the removal of a person from the UK. A minister may decide against removing a person, but would not be required to do so. If the minister decides to continue with the removal, UK courts and immigration officers must disregard the interim measure.
The Safety of Rwanda (Asylum and Immigration) Bill as currently drafted also gives government ministers the power to decide whether the UK will comply with any interim measure issued by the ECtHR in respect of a decision to remove someone to Rwanda.
Some Conservative MPs expressed concern that the ECtHR could still block flights to Rwanda using interim measures. The government was unwilling to change the Bill. Instead, on 17 January 2024, the Cabinet Office issued draft guidance that would be issued to all civil servants if the Bill passes in its current form, stating that if a minister decides not to comply with an urgent injunction of the ECtHR ‘it is the responsibility of civil servants – operating under the Civil Service Code – to implement that decision’.
Neither the Bill (if it becomes law) nor the change to the Civil Service Code changes the international legal obligation on the UK to comply, which could place civil servants in a difficult position if a minister chose to disregard an interim measure. While they would be unlikely to face consequences for following ministerial direction, the Civil Service Code nevertheless requires civil servants to ‘comply with the law and uphold the administration of justice’ and experts suggest that ‘the law’ includes both domestic and international law.
Have any states taken steps to disregard ECHR rulings or interim measures?
No. No current member of the Council of Europe has given its national authorities powers to ignore or disregard judgments or orders of the ECtHR.
The closest exception was Russia when, in 2016, the Russian Parliament gave direction that under certain circumstances the Russian Constitutional Court could set aside rulings of the ECtHR or other international courts. Russia was expelled from the Council of Europe in 2022 following its invasion of Ukraine.