Recommendation 9

The prohibition on the application of new positive obligations in the domestic courts, and the restrictions placed upon the application of existing positive obligations, is likely to put the UK at odds with the jurisprudence of the European Court of Human Rights (ECtHR). It is not clear to us how the courts can simultaneously be expected to comply with Convention rights (clause 12) and yet ignore or restrict their application. As a result of clause 5, it is highly likely that there will be a divergence between domestic and ECtHR interpretations of Convention rights. If an individual is unable to rely on their full Convention rights under domestic law, the individual would need to take their case to Strasbourg to seek a remedy, potentially leading to an adverse judgment against the UK. The Government is bound in international law to comply with final adverse judgments as required under Article 46 ECHR. Clause 5 cannot remove our obligations under international law—it will simply introduce barriers to the enforcement of rights in the domestic courts, increase the time and costs of litigation for both individuals and public authorities, and create a long road to enforcement in Strasbourg.