The Human Right Act 1998: A case study Hirst v UK(No2)

The Human Right Act 1998: A case study Hirst v UK(No2)

Anthony Lester emailed me on the evening of 19 April 2009, to inform me that there is to be a question on the prisoners right to vote in the House of Lords the next day, and that he intended to ask a supplementary question, and sought my advice in relation to this.

"Lord Lester of Herne Hill: My Lords, is the Minister aware that the Republic of Ireland, the Republic of Cyprus and Hong Kong have found it easy to enact measures to give prisoners voting rights? Will he explain why we are finding it so difficult, if it is not—as I believe it to be—an example of timidity in the face of what the Government fear from the press? Have the Government taken into account that their timid prevarication will lead to costs to the taxpayer if prisoners take cases to Strasbourg for this gross violation of a binding judgment and then we have to pay the costs of all these legal proceedings? Was that taken into account when the Government decided to kick this into the long grass?".

I am surfing the web and come across Hard times call for a new bill of rights by Justice Minister Michael Wills. I wondered if he was able to write some of it with a straight face? Perhaps, he was writing it tongue in cheek? For example, he writes:

"In such an uncertain world people need to know their rights and freedoms will be protected, whatever happens around them, and that others, including governments, will behave responsibly towards them".

Ok, so we have a recession. Fine words coming from a Justice Minister, the very department of government responsible for prisoners human right to vote. This government introduced the Human Rights Act 1998, and the Ministry of Justice website has publications relating to the Act and written by the predecessor to the MOJ the Department of Constitutional Affairs. For example,

Making sense of human rights - a short introduction
Published on 30 October 2006
This guide is designed for officials in public authorities to assist them in working with the Human Rights Act 1998. It gives a brief introduction to human rights for use in straightforward situations.

"This guide is designed for officials in public authorities to assist them in working with the Human Rights Act 1998 – which has been described as the most important piece of constitutional legislation passed in the United Kingdom since the achievement of universal suffrage in 1918".

The European Court of Human Rights referred to the principle of universal suffrage in Hirst v UK(No2).

A problem is highlighted by wikipedia:

"The concept of universal suffrage does not imply any impropriety in placing restrictions on the voting of convicted criminals or mentally ill persons. Such restrictions exist in many countries with universal suffrage".

However, for me universal suffrage means one person one vote.

According to Making sense of human rights:

"What are human rights?

Human rights are rights and freedoms that belong to all individuals regardless of their nationality and citizenship. They are fundamentally important in maintaining a fair and civilised society".

I think it is fair to claim that prisoners have a legitimate expectation that they are included as individuals here, and that this legitimate expectation extends to being treated fair and that society is civilised towards them.

"The Convention rights

Article 3 of Protocol 1: Right to free elections
Elections for members of the legislative body (e.g. Parliament) must be free and fair and take place by secret ballot. Some qualifications may be imposed on who is eligible to vote (e.g. a minimum age)".

According to the government's position

"It has been the established policy of successive United Kingdom Governments that convicted prisoners should lose their right to vote for the period for which they are incarcerated. Currently, prisoners who are serving a custodial sentence in a place of detention within the UK are barred from voting under section 3 of the Representation of the People Act 1983 and related legislation".

However, this position was challenged successfully in Hirst v UK(No2). That was 5 years ago. Whilst there are examples of countries where governments have enacted to give prisoners voting rights, the UK government has prevaricated to the point where I would say that they have attempted to pervert the course of justice. Justice delayed is justice denied is an English law principle.

"Human rights in practice

What does the Human Rights Act mean for public authorities?
The Human Rights Act has the following implications for the work of public authorities:
•
It makes it unlawful for public authorities (these include central and local government, the police and the courts) to act in a way that is incompatible with a Convention right.
•
Anyone who feels that a public authority has acted incompatibly with their Convention rights can raise this before an appropriate UK court or tribunal".

I did raise the issue in the High Court, but it was not treated with the respect it deserved and the judges would not play ball.

"What does the Human Rights Act do?

It makes the human rights contained in the ECHR enforceable in UK law. This means that it is unlawful for a public authority to act in a way that is incompatible with a Convention right. Anyone who feels that one or more of their rights has been breached by a public authority can raise the matter in an appropriate court or tribunal. If they are unhappy with the court’s decision and have pursued the issue as far as it can go in the UK, they may take their complaint to the European Court of Human Rights".

So, I went off to the ECtHR. The Committee of Ministers in Europe has the duty to execute the Court judgment in Hirst v UK(No2). The government is claiming that it is responding to the judgment in its own slow way. I am claiming that the government is not really responding at all, but just going through the motions and playing for more time.

"What difference does the Human Rights Act make?

The principal effect of the Human Rights Act is to enable people to enforce their human rights in the domestic courts. It should mean that people across society are treated with respect for their human rights, promoting values such as dignity, fairness, equality and respect".

And here lies a problem. The weakness in the Human Rights Act is that the courts are powerless to strike down statutes which are not compatible with the Convention. The courts are only empowered to declare that a statute is incompatible.

And this leads to a second problem:

"A declaration of incompatibility sends a signal from the courts to Parliament that the UK may be breaching its international obligations under the ECHR. Parliament does not have to change the law: it retains its sovereignty as the UK’s lawmaking body".

How can it be claimed that Parliament does not have to change the law when it is clearly the right thing to do to change the law? This absurdity cannot stand and must be changed. In effect, Parliament is claiming the right to abuse citizens human rights despite there being a Human Rights Act supposedly guaranteeing those very human rights.

UPDATE:

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