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Wednesday, June 16, 2010

Prison Reform Bill or Prisoners' Votes Bill

Prison Reform Bill


Prisoners’ Votes Bill


I went from a law breaker to a law-maker whilst in custody. It was a case of reform. Reform myself first and then, hopefully, reform the system. Sadly, ironically, as I went from a law breaker to a law-maker I witnessed those in authority went from law-makers to law breakers!

When I started studying law, prison law, at least in this country, was not a recognised field of law in its own right. Lawyers’ knowledge of the law stopped outside of the prison gates. I started to build a bridge to span this gap between the closed, secret world of prison because the situation did not sit comfortably with the legal maxim “ignorance of the law is no excuse”. Experience showed that at best, lawyers could only approach the subject from an outside in perspective. And, the American jurist Oliver Wendell Holmes (1841-1935) said, “If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict”. Therefore, I developed a school of thought which I call Prison Law Inside Out. Unlike the traditional ‘black letter of the law’ teaching, my approach is law in context or ‘living law’.

I do not accept assumptions, rather I am critical. For example, it is assumed that a law breaker outside once sentenced to imprisonment will automatically abide by the Prison Rules. This is because there is no democracy in prison. Section 47 of the Prison Act 1952, states prisoners are in the charge of the Secretary of State 24/7. In effect, there exists a totalitarian state. A soldier in the ranks must obey orders and not question. However, prisoners remain civilians. In my view, they are entitled to question an order and if it is believed that the order lacks legitimacy they retain the residual liberty to say “no”. Adopting this approach leads to conflict. It strikes at order, control. Everybody is different, and yet we have a penal system attempting to make one size fit all. I was denied education and was described as a control problem. What changed this was being given the opportunity to educate myself.

I was misdiagnosed as a psychopath. I have Aspergers’ Syndrome. It does mean that I am different. However, it gives me an eye for details and the devil is in the details. I can remember everything I hear, see or read. I can focus very sharply on topics which interest me. Politics is about power, some say it is power without responsibility. Administrative law is about power. Public law is about power. Prison is about power. Phil Wheatley, the former Director General of the National Offender Management Service, told me that it was the power which attracted him to the Prison Service. David Foulkes states “The basic and traditional functions of the state are those of securing the community against external aggression and internal strife and keeping itself going out of taxation…In addition, the need to attempt to secure human rights…”. He adds, “There is a need for public power and its efficient exercise: there is a need for protection against abuse of power”.

When I started to study law in 1989, the European Convention on Human Rights had not been incorporated into domestic law. And, it was a constant source of frustration to be told by counsel that it only needed to be taken into account and was not binding upon judges. Therefore, I welcomed Bringing Rights Home: The Human Rights Bill. I noted with concern the absence of Article 1 and 13. When the Human Rights Act 1998 was passed by Parliament, it would not come into force for another 2 years. Apparently the delay was to allow time to educate judges and public authorities about human rights. I devoured the Home Office literature which claimed to be a guide upon the Act’s implications. I could not help but notice that prisoners had not been taken into account. Those NGO published documents did highlight some areas which it was felt Articles may apply to prisoners. However, nobody had spotted Article 10 which I felt meant prisoners could telephone the media. Or Article 11 whereby prisoners could form an association, for example, in direct opposition to the Prison Officers’ Association. Finally, Article 3 of the First Protocol escaped people’s attention. I could see a shift in the balance of power coming as I strived to give empowerment to prisoners. Given the situation in the UK, I felt that prisoners were better off in Europe. And was prepared, if necessary, to consider ‘Going to Europe’.

I love my country, but am ashamed by the UK’s very poor human rights record. So much so, that I no longer refer to myself as being either English or British. Rather, I proudly proclaim that I am European. This has its benefits, for example, I am not patriotic. Some people still think we have a British Empire. That is trying to live in the past. I like history as a subject, but we live in the present and it is the future of the United States of Europe I feel more comfortable with. The UK must decide whether to sink or swim, be fully a part of a United Europe or try to go it alone. Trying to be both in and out is not an option, because the UK only gets sidelined. The UK must be a team player, just 1 of 47 Member States in the Council of Europe. And, just 1 of 27 Member States of the European Union. With both these institutions, Member States must abide by the Convention and abide by the decisions of the European Court of Human Rights. Since the ratification of the Lisbon Treaty, particularly ratification of Protocol 14, and the Interlaken Process, which gave the Court and Committee of Ministers new powers which came into force on 1 June 2010, the UK is in grave danger of being declared a rogue or pariah State and suspended or expelled from both institutions. I have put the UK in check; the next move is check mate. The Court and CoM are reactive, I am proactive. Hirst v UK (No2) is more than the name of a case it is the Individual v the State. In other words, the Executive, Judiciary and Parliament are my hostages. Their release is open to negotiation.

Joshua Rozenberg was right when he wrote that I fought the system and won. I was told in prison that I could not beat the system. I rose to the challenge. Now society has to strive to adapt social conditions to incorporate people, like myself and Gary McKinnon, and gain from the valuable contribution that they can give back to society. Every revolution in history started in prison. This one is no different. The reason why The Shawshank Redemption is so popular is because it is all about not giving up hope. I have been advised not to have faith in judges because they cannot be trusted. Lord Carey has said that Parliament has lost the moral authority to govern. And the Executive operates as though it believes it is above the law. I ask that this motion for reform be accepted and acted upon.

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