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Friday, June 18, 2010

Prisoners votes: The Way Forward

Prisoners votes: The Way Forward

Part one.

Part Two: The Way Forward

"We are, however, willing to consider any constructive views as to possible approaches to implementation of the judgment, and to this end I invite you to set out your views on implementation in writing to me"(Cabinet Office, Elections and Democracy Division).

I think it was a mistake by the previous regime to seek the advice from P.M. Wheatley, whether he knew anybody who could help with this case, and then to reject his advice on the ground "What would the Sun and Daily Mail say?". He advised that they approached me. I am prepared to act as an independent consultant. Naturally, for a fee plus expenses. I am the foremost authority on the case. It makes sense to have me on board, rather than risk your ship being torpedoed. I can handle the media, however, I would advise against issuing 30 second soundbites.

Time is a vitally important issue in this case. The previous regime played for time, and I note that you are also seeking more time to resolve the issue. However, I very much doubt that you will succeed in stalling implementation for another 5 years. Time cost money. I estimate that the previous regime has cost the taxpayers in the region of £60m for loss of the vote in the European election, and £75m for the last General Election. Prisoners are rubbing their hands at the thought of a £135m payout. I suspect that this will not go down well with the electorate. It might be said that the previous regime has left the new regime with a ticking timebomb.

Effective implementation of the European Convention on Human Rights: the Interlaken process

This process established that if the Court was to survive there needed to be reforms. These reforms involved the Court itself, and to some extent to both the Council of Europe, and the Committee of Ministers. It was decided that a tougher approach was needed. The Committee of Ministers came in for some justified criticisms for its lax approach in its role of supervising execution of the Court's judgments. The Committee of Ministers has been accused of being a watchdog without teeth. Therefore, in the best interests of everybody concerned, armed with new powers which came into force on 1 June 2010, the Committee of Ministers has been urged to get tougher with Member States which fail to fully comply with the Court's judgments. This moving of the goalposts now poses a predictament for the UK. Even without this process once a case has reached the 5 year stage where there is non-compliance by a Member State, the Parliamentary Assembly of the Council of Europe and the Committee on Legal Affairs and Human Rights step in. It would appears as though the previous regime has taken it to the wire. The Committee of Ministers has itself made very clear the unconditional nature of the obligation upon a Member State to abide by a judgment. There is no getting away from this, if the UK wishes to remain within both the Council of Europe and European Union. The sooner the UK recognises this fact, the clearer the way forward becomes.

Wider constitutional reforms

Abiding by the Court judgment in Hirst No2 is a discrete issue. The previous regime spoke about the need for constitutional reforms. There is a need for these, and the previous regime's failure to seek advice from the right quarter means that the greater impact of Hirst No2 has yet to be felt. There is no getting around s.3 of RPA remaining as it is on the statute books. In the High Court, at the start of the case, Kennedy LJ, stated if it could withstand the challenge from Article 3 of the First Protocol all is good and well. He did his best (or worst, if looked at from a different angle) and it has been shown not to stand up to the Hirst test. Furthermore, the Court was scathing of Kennedy LJ's handling of the case. Parliament too fared badly. As did the Executive. It is clear that the separation of powers has failed. Given the declarations of the Interlaken process, those responsible for providing the checks and balances in our present system were not up to the job. It also means that the model of the separation of powers used for so long in the UK has to be reformed. Of course this entails a redistribution of power. Supremacy of Parliament is no longer acceptable if it makes or retains bad laws. And, calling a subservient body the Supreme Court is beyond a joke. It may suit some people that the UK is the laughing stock of Europe and beyond, but national pride will only suffer if matters do not change. Because, as it stands, cases will still have to keep going to Europe for the remedy being denied at home. This causes embarrassment. Moreover, it makes a mockery of British justice. Parliament can no longer be a Boy's Club. This does not mean admit more ladies, not that that shouldn't happen, it is a reference to the institution being closed to democracy. MPs writing in themselves amounts on blank cheques. Judging themselves with rules they have made. Those rich enough paying cash for access, or seats in the House of Lords. The World Cup is on, but judges acting as goalkeeprs for the Executive? And, the Executive behaving as though above the law. It's a shambles. The UK, under the previous regime, had a Secretary of State for Justice being irresponsible by denying justice. Hirst No2 has shown that the UK failed in 3 essential areas, democracy, rule of law and human rights. It is essential that not only must the Human Rights Act 1998 be amended, but also attitudes towards it when it has been improved need to see it in a positive light.

1 comment:

Charles Cowling said...

Following this avidly.