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Friday, August 06, 2010

The Long Arm of the Law gets put in an armlock

The Long Arm of the Law gets put in an armlock

Mi Learned Friends over at UK Human Rights Blog have an interesting post “Repeal of Human Rights Act would make no difference” by Adam Wagner. Whilst I agree with both Lord Hope and Joshua Rozenberg to some extent, the Deputy President of the Supreme Court and legal commentator are talking about and looking at the player on the benches on the sideline, and not focusing on the game being played out on a field away from Eton.

This is not a top down issue; rather it is a bottom up and inside out perspective which provides the necessary if unwelcome insight.

It may be called a revolution. Every revolution in history started in prison, and this one is no different. It began with a law breaker who reformed and became a law-maker. Having reformed himself he set out on a campaign to reform the System. An obstacle in the path was the absence of the European Convention being binding in domestic law. The HRA improved this position somewhat, but the obvious weaknesses are the absence of Articles 1 and 13. This position can be seen from studying Hirst v UK (No2) and the UK’s refusal to fully comply with the Grand Chamber judgment in 5 years.

The disgraced former Tory minister Jonathan Aitken was right when he wrote in the Daily Telegraph that it was a dangerous hostage to fortune for Charles Falconer to state on The World at One that the judgment does not mean that all prisoners would in future get the right to vote. Under the Convention it is not for the Member State, the losing party in the action, to interpret the judgment. As a consequence of the UK misconstruing the judgment, it has gone from 1 prisoner suffering human rights abuse to 75,000 prisoners suffering human rights abuse. That is quite a leap. Individual petition means that the Court will now be swamped with many thousand prisoners’ applications. Tony Blair correctly identified that the Committee of Ministers was a toothless watchdog. This position changed with the ratification of the Lisbon Treaty, in particular, ratification of Protocol 14 which came into force on 1 June 2010. This allows for Rule 11 ‘infringement proceedings’ to begin against a Member State. It is the first time in the Convention history that it is being used against a Member State. It is not what the UK thinks about the issue, but what matters is if two thirds of the Council of Europe vote for it then the UK is heading for expulsion from both the Council of Europe and European Union.

What is being conveniently forgotten by the UK is that the 3 arms of the State; the Executive, Judiciary and Parliament, having lost the legal battle in the highest court in Europe, are the hostages of the Association of Prisoners (set up under Article 11). The losers do not dictate the terms of surrender. There is no room for negotiation because the Council of Europe has clearly stated that a Member State must fully comply with both the Convention and Court decisions. It is time that the White Flag of Surrender flew outside Number 10 Downing Street.

In February, as part of the Interlaken process, the Interlaken Conference took place and the Interlaken Declaration was signed by all 47 Member States of the Council of Europe. They reaffirmed their commitments to abide by the Convention and Court decisions. The Conference was about the future of the Court. It felt threatened by the 120,000 case load, and by Member States failure to abide by the Court’s decisions. An issue was the repetitive applications from Member States where a violation had already been found and not subsequently remedied at domestic level. Besides calling into question the HRA not providing an effective remedy, there is the issue of a systemic violation, for example, the separation of powers not working to provide the necessary balances and checks against abuse of power. The rise from 1 violation to 75,000 is a serious systemic failure. Therefore, the Council of Europe gave itself new powers to deal with rogue or pariah States like the UK. The Conference recommended invoking the Treaty of London 1949 (Statute of the Council of Europe) to force Member State’s compliance and greater use be made of the subsidiarity principle. Both resolutions were adopted. It means that the UK is in deep political and legal trouble come September when it once more appears before the Committee of Ministers for execution of the Hirst judgment.

I suspect that the UK will try to bluster its way out of trouble and announce to the Committee of Ministers that it intends to fully comply with the judgment all in good time when the coalition gets around to instituting its Commission and wider constitutional reforms. Like Lord Hope and Joshua Rozenberg, the UK fails to appreciate the issue. A Member State is required to secure for all its citizens, prisoners included, Human Rights, Democracy and Rule of Law otherwise it is an authoritarian or totalitarian state which is what happened under the Nazi rule in Germany, and the reason why the Council of Europe was founded to prevent this ever occurring again. It is not being claimed that the UK is gassing prisoners; however, there are similarities with dehumanizing prisoners with the view that they are less eligible than others to human rights. This view totally goes against what Europe is all about. Submissions will inform the Committee of Ministers that the Prisoners Votes Case must be treated as a discrete issue. Whilst there is a need for wider constitutional reforms, the Venice Commission and the Electoral Commission have both reported that Hirst v UK (No2) is a simple case and all the UK has to do to fully comply is amend s.3 of RPA 1983.

The UK has maintained that it is a complex case. Nick Clegg has called it a legal minefield. Elkan Abrahamson of Jackson Cantor LLP, solicitor for the case and the Association of Prisoners disagrees. He states that it is a simple case. However, any attempt to stray from the judgment is a legal minefield. Neither the Labour administration nor the coalition has said what the difficulties are. It is time they elaborated or do as they are told. The Council of Europe does not go back on a case because the State has already had its say and lost in the Court. What is the issue now is implementation, that is, play the game or get sent off. The accession to the Convention by the EU under the Lisbon Treaty now means that both institutions have come closer together in relation to Human Rights, Democracy and Rule of Law. Given that the subsidiarity principle is a EU law, and that the ECJ can also get involved, plus economic and political sanctions at the ready, the UK needs to realise this is one hole it is not going to dig itself out of.

Besides destroying the UK’s doctrine of the separation of powers, the Hirst case, with the subsidiarity principle, and the signing up to Human Rights as higher law at the Interlaken Conference, by Baroness Scotland, means that the doctrine of the supremacy of Parliament has also fallen in the battle. If this is not shock enough, it is understood that a challenge is to be mounted claiming that the HRA is incompatible with the Convention. There is no way that Europe will tolerate human rights being dependent upon responsibilities. The Act needs to be amended to incorporate Articles 1 and 13 of the Convention. In addition s.6 needs to be amended so that it is actionable if the Secretary of State for Justice fails to ensure that judgments from the ECtHR are implemented, if necessary via Parliament. The Hirst case does not expressly require but it may be implied that the UK’s unwritten constitution can be assigned to history. What appears on the face of it to be a simple case has achieved what Guy Fawkes failed to do. It is suspected that constitutional lawyers will have advised the coalition and the previous Labour administration that there will be the need for wider constitutional reforms. Labour did announce this and the coalition has also announced it. Nobody has yet had the courage to admit that a prisoner has taken the UK hostage, and that there is a heavy price to pay to be freed. Part of this cost might be taking the editors of the Sun and Daily Mail to lunch every day between now and September. Part of the problem the UK has is that it does not know how to tell the media and the public the truth. For too long spin has been the order of the day. When someone comes along and holds the truth, the whole truth, and nothing but the truth to be the order of the day, lies hold no sway.

1 comment:

Joshua Rozenberg said...

I understand perfectly well that the UK must implement the Hirst judgment in a way that will satisfy the Committee of Ministers. So does the coalition government. But the government also knows that the Committee of Ministers will not object if it takes some months to decide how to proceed.