Recommendation 44

It does not appear that the practical impact of clause 6 is likely to be significant. However, in those rare cases where the courts may currently consider that there is an individual right at stake which is so important that it outweighs the importance of reducing risk to the public, this clause could prevent the court reaching a decision which it considers consistent with the Convention. A clause that seeks to bind the hands of the courts when assessing whether an individual’s rights have been violated is inherently problematic. The courts need to be able to conduct a genuine proportionality assessment or they risk being unable to adequately enforce human rights. Unless the Government is prepared to reconsider clause 6, we would like to see it removed from the Bill (see Annex, Amendment 23).