Jailhouselawyer fisks the...

Jailhouselawyer fisks the...

Government submission to the Committee of Ministers on 1.12.2009

“The Government remains committed to taking appropriate steps to implement the judgment in Hirst (No.2) v. United Kingdom. We have now carried out a second, more detailed public consultation that takes account of the findings of the first stage consultation on how voting rights might be granted to serving prisoners, and the extent to which those rights might be limited in accordance with the judgment. The second consultation ran from 8 April - 29 September 2009. The consultation document proposed four options for enfranchisement based primarily on sentence length, invited views on those options, and also sought information from respondents on some of the practical issues raised by implementation. Over 100 responses have been received from individuals and organisations with an interest in the issue of prisoner voting rights. We now need to undertake detailed analysis of those responses, and to reach a view on the Government’s approach to implementing the judgment. The Government will keep the Committee of Ministers informed as it progresses this work.

October 2009”.

“The Government remains committed to taking appropriate steps to implement the judgment in Hirst (No.2) v. United Kingdom”.

This is clearly not a truthful statement. If the Government was committed to taking appropriate steps, why has it taken over 5 years and still nothing has been done to amend s.3 of the Representation of the People Act 1983 which the ECtHR found to be in violation of Article 3 of the First Protocol of the Convention? In my view, taking this course of action would have been appropriate. For example, in 2006, the Irish Government introduced legislation to allow prisoners to vote, and stated that it had done so to fully comply with the Hirst v UK(No2) judgment. The fact that the Government uses the word “remains” shows that they are aware of the delay. When can we expect some explanation for the delay from the Government? The Joint Committee on Human Rights has stated: “It is unacceptable that the Government continues to delay on this issue. The judgment of the Grand Chamber was clear that the blanket ban on prisoners voting in our current electoral law is incompatible with the right to participate in free elections. We call on the Government to explore the possibility of bringing forward amendments to this Bill, to give effect to the European Court's judgment”. What does it take to “implement”? Erik Fribergh, Registrar of the ECtHR, states: “there are cases raising issues of a systemic nature, which stem from a defective legal provision or administrative practice and which can in fact be remedied fairly easily, by modifying the law or practice concerned, provided of course that the political will exists”. The Government’s problem is the lack of political will to change the status quo.

“We have now carried out a second, more detailed public consultation that takes account of the findings of the first stage consultation on how voting rights might be granted to serving prisoners, and the extent to which those rights might be limited in accordance with the judgment”.

Nowhere in the Hirst v UK(No2) judgment is there any mention of a consultation exercise. I did raise the issue that prisoners votes had not been debated in Parliament. The Court accepted this point and it was one of the main reasons why the Court found against the UK. The Irish Government did not see the need for a public consultation, let alone two on the same subject, and simply debated the issue in the Irish Parliament before passing the necessary legislation. The Government had argued that if it granted prisoners the vote it would offend public opinion. The Court had this to say: “There is, therefore, no question that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction. Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion”. As it happens, only 4 people agreed with the government’s view that prisoners who have committed serious crimes and received long sentences should be denied the franchise. Whereas 47% supported all convicted prisoners should get the vote. Iain Dale has this to say: “Consultation is a difficult thing to get right - especially for public bodies. The public is rightly sceptical about what they see as sham consultation exercises. They usually imagine that the outcome of whatever is being consulted upon has already been predetermined, and most of the time they are probably right. How have we allowed the public to become so cynical about democratic exercises which they ought to be able to have confidence in?”. There is ample evidence that both consultation exercises were a sham in the Prisoners Votes Case. For example, the Government failed to adhere to its own Code of Practice on Consultations which is designed to ensure fairness. Prisoners who are most affected by any decision were deliberately excluded from taking part in the consultation exercises. Why does the Government need to consult the public on how voting rights might be granted to serving prisoners? The Government doesn’t. All the Government has to do is draft a Bill to lay before Parliament for debate. Similarly, to consult the public on “the extent to which those rights might be limited in accordance with the judgment”. The Court stated that it should only be limited, for example, to those convicted of offences such as electoral fraud.

“We now need to undertake detailed analysis of those responses, and to reach a view on the Government’s approach to implementing the judgment”.

This game has been played for over 5 years, and now the Government is asking the referee on this uneven playing field for extra time. The Government’s view has not changed much since this case began. The Government is seeking to comply with the minimum amount of change. Damage limitation exercise. The damage was already done when I brought the case. Rearranging the deck chairs on the Titanic and The Band Plays On springs to mind. David has slain Goliath. A prisoner beat the system. Time to get over it. An outlaw has outlawed Jack Straw.

“The Government will keep the Committee of Ministers informed as it progresses this work”.

This is not only arrogance but fails to acknowledge who is the organ grinder and who is the monkey. According to the Court “It is, however, for the Court to determine in the last resort whether the requirements of Article 3 of Protocol No. 1 have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their
effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate”. And, “It is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order in order to discharge its obligation under Article 46 of the Convention”. Jack Straw’s balls are in a pincer movement from both the Court and Committee of Ministers. Is it any wonder the Government can only say “Ouch!”?