Recommendation 19

In most circumstances, clause 7 will make little difference to the approach taken by the courts as they already show significant respect for the decisions reached by Parliament. However, in those circumstances where Parliament has not considered particular implications of its legislation, and where individual rights rather than broad policy issues are at stake, clause 7 could tie the courts’ hands when they are attempting to engage in an effective assessment of compatibility. Ultimately, legislation that a court acting freely may consider to be incompatible with the Convention could instead be given a clean bill of health. This is inconsistent with the UK’s obligations under the ECHR. It is likely to put the UK courts out of step with the ECtHR, resulting in victims within the UK needing to take their cases to Strasbourg directly rather than domestic courts in order to enforce their rights, and in Parliament eventually having to legislate to remedy the incompatibility years later.