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Wednesday, October 20, 2010

Why has Nick Clegg appointed the incompetent Lord McNally?

Why has Nick Clegg appointed the incompetent Lord McNally?

Lord Ramsbotham: To ask Her Majesty's Government what action they are taking to comply with the judgment of the European Court of Human Rights on the voting rights of prisoners?

The Minister of State, Ministry of Justice (Lord McNally): My Lords, the Government have been actively considering the issue over the summer and this work is continuing.

Comment: Lord Ramsbotham’s question is asking to be informed what action is being taken to fully comply with Hirst v UK (No2). Lord McNally’s response does not answer the question. The time for thinking about action (or more to the point inaction) is long past; “Deeds not words” was the motto of the Suffragette Movement when Parliament wanted to talk about women’s votes rather than legislate for them. In September the UK tried to fob off the Committee of Ministers of the Council of Europe that the UK was taking action. The CoM stated they “regretted, however, that no tangible and concrete information was presented to the Committee on how the United Kingdom now intends to abide by the judgment”. Therefore, it is arguable that Lord McNally has misled Parliament with his answer.

Lord Ramsbotham: My Lords, I thank the Minister for that reply. I understand that responsibility for the issue has now been passed to the Deputy Prime Minister, who announced that action was being taken. When I last asked this question in June, the Minister told the House that we would receive an answer in October. I gather that has now been deferred until December. I dread to think what would happen in this country if anyone who was made the subject of a court order did nothing about it for six years-the time that has passed since this order was made, and it has been five years since the appeal. Can the Minister assure the House that intentions are being carried out to enable those prisoners who will be allowed the vote to vote in the elections next May?

Lord McNally: My Lords, that is a trick question because it assumes that a decision has been made about the vote being granted to prisoners. I have said that the Government have been actively considering the issue over the summer. It is only five months-not five years-since this Government came into office. We are looking at the situation and will make a report to the European Council of Ministers, as we promised over the summer, at its meeting on 30 November.

Comment: I have read in the Times that the MoJ passed responsibility to the Deputy Prime Minister as part of the coalition agreement. However, constitutionally, the responsibility for ensuring human rights rests firmly with the MoJ. It is not a trick question. In Hirst v UK (No2) it was decided that it is a breach of human rights to deny convicted prisoners the vote. The UK is obliged to remedy the situation from no votes to votes. As I have pointed out above in September the CoM rejected the UK’s pathetic excuse that it was doing something. It is no excuse to state that the coalition has only been in power for 5 months. They were in opposition for 5 years and could and should have raised the issue but instead chose not to do so. The CoM is not in November/December wanting a report about what the UK is thinking of doing. Rather what the CoM will be wanting is concrete measures. In other words, it is not a trick question rather it is another trick answer from Lord McNally.

Lord Trefgarne: My Lords, is it not the case that there is room for more than one respectable view on this matter? Is it not further the case that, apart from the noble Lord, Lord Ramsbotham, and, presumably, the judges of the European court, very few people are in favour of this proposal? Will the Minister be guided accordingly?

Lord McNally: I agree with my noble friend that there are people who believe passionately that the removal of the vote is a proper sanction for someone who has committed a crime that justifies a prison sentence. There are also people-the noble Lord, Lord Ramsbotham, is one-who see the granting of the vote to a certain category of prisoner as being a useful way of rehabilitating them into society. Both views are perfectly respectable. The Government are considering both views and will make their decision in due course.

Comment: The issue is a simple one, which is, fully complying with Hirst v UK (No 2). The only respectable view is that in favour of compliance. It is not a proposal whether the UK should fully comply with the Court decision; rather it is when does the UK intend to fully comply? The Court decision clearly excludes public opinion as being a legitimate reason for denying convicted prisoners their human right to the vote. The only sound guidance the Minister should follow is mine. Given that the Court has rejected the argument that the human right to vote is linked to the offender’s crime and sentence, why is Lord McNally not stating this in his answer? If Lord Ramsbotham’s is of the view that only “a certain category of prisoner” is entitled to the human right to vote, then he has misconstrued the Hirst No 2 judgment which was reaffirmed in Frodl v Austria. If it is a case of Lord McNally misquoting Lord Ramsbotham, then I feel he should make this plain in the House of Lords. It is disingenuous to claim that supporting the human rights abuse of convicted prisoners is perfectly respectable. That the government is even considering continuing this human rights violation is deplorable! The UK is under an obligation to speedily remedy the violation. The decision to fully comply with Hirst No2 should have been made 5 years ago by the previous administration, and the present administration had the perfect opportunity to include amending s.3 of RPA 1983 in the Queen’s Speech.

Baroness Kennedy of The Shaws: My Lords, I remind the Minister-

Noble Lords: Question!

Baroness Kennedy of The Shaws: It is a question. I remind the Minister of the view taken by David Howarth when he was the Liberal Democrat justice spokesman. He said:

"It is unacceptable for the government to pick and choose which human rights treaty obligations it fulfils just because it feels the issue is unpopular".

Is this another fault line within the coalition and one of the areas where the Government want to remain silent? It is important that we hear clearly from the Government-and soon-what is intended with regard to an order that was made about the civic rights of prisoners. What does the Minister have to say about whether there is a fault line here?

Lord McNally: I can absolutely assure the noble Baroness that no such fault line exists. As I have explained already, over a period of five months we have been looking at the situation and listening to various points of view. There is a Council of Ministers meeting on 30 November and we will update that council meeting in due course. We have not been unduly laggard in looking at the issue and, as I have said, the work is continuing.

Comment: There is clearly a division when Eric Pickles has stated that the Tories are opposed to convicted prisoners getting the vote. And, the LibDems view that some of the convicted prisoners should get the vote. Both views are clearly wrong and contrary to the decision in my case. What has been looked at is how the UK can get away with minimal compliance. It cannot and therefore it was a waste of time spent looking at this. The UK is missing the point, the job of the Committee of Ministers is to supervise execution of the Court judgment, that is monitor the compliance and not be the recipient of updates on inaction and proposals which are designed to delay until yet another administration gets into power.

Lord Scott of Foscote: Is the Minister aware that the rulings of the Strasbourg court are not binding on our domestic courts? Section 2(1)(a) of the Act states that Strasbourg court rulings should be taken into account, but an amendment to make them binding was rejected by this House and was never part of the Bill. Is the Minister aware also that the Hirst (No. 2) judgments contained a dissenting opinion from five of the 17 judges, including Judge Costa, and that in the opinion of many, including myself, the dissenting opinions are far more convincing than those of the majority? In these circumstances, does the Minister agree that it is not open to the Strasbourg court to add to the human rights enshrined in the convention in the manner in which it from time to time does, and that, so far as the issues in the present case are concerned, the Government should do no more than simply reaffirm the present position? Does the Minister finally agree-

Noble Lords: Speech!

Lord Scott of Foscote: Does the Minister finally agree that the Government must govern this country according to the laws in force in this country without regard to the occasional extravagances of the Strasbourg court?

Lord McNally: My Lords, one of the values of Questions like that of the noble Lord, Lord Ramsbotham, is that it provokes interventions such as that. It means that we get, for free, legal opinions that would on normal occasions cost us a fortune.

Comment: I beg to differ with the opinion expressed by Lord Scott of Foscote. S.2(1)(a) of the HRA 1998 clearly relates to a UK court taking into account a ECtHR decision when making a decision. It does not state that the decision of the ECtHR is not binding on the UK. The Executive, Judiciary and Parliament are bound by the ECtHR decision in my case. As the HofL is part of Parliament, regardless of rejecting the amendment, my decision remains binding on the UK. It has always been the case that the majority opinion in a court judgment is binding, and the minority opinion cannot be used to overrule the decision of the Court. The Court has not added human rights to the Convention, merely applied the existing human right to vote pursuant to Article 3 of the First Protocol. It would appear by “reaffirm the present position” there is a suggestion that the UK ignores the Court decision. If this is the case then it is very irresponsible thing to say. Bear in mind that as recently as February Baroness Scotland reaffirmed the UK’s commitment to abide by the Convention and the Court decisions. So in this sense if the present position is reaffirmed then it means that the UK must fully comply with the Court decision in my case. The only way that the UK can govern this country purely by domestic law is to withdraw from the Convention, Council of Europe and European Union. If the UK does not fully comply and very soon the Council of Europe may well take the matter into its own hands and suspend or expel the UK for being a rogue or pariah state.
It shows how ignorant Lord McNally is if he values the opinions of Lord Scott of Foscote. If he provided me with such I would sue him for negligence! If the government is paying taxpayers money for poor advice like his then the Taxpayers Alliance ought to be up in arms.

Lord Lester of Herne Hill: My Lords-

Lord Janner of Braunstone: My Lords-

Lord Bates: My Lords-

Noble Lords: Lester!

The Chancellor of the Duchy of Lancaster (Lord Strathclyde): My Lords, I wonder whether the noble Lord, Lord Janner, might give way and let the noble Lord, Lord Lester, speak.

Lord Lester of Herne Hill: My Lords, is the Minister aware that there is an obligation under Article 46 of the convention to abide by the judgment? Is he aware that the British judge, Sir Nicholas Bratza, formed part of the majority? Is he aware also that Ireland, Cyprus and Hong Kong have all managed to introduce postal voting for prisoners without the slightest difficulty? Finally, is he aware that in November and December, the British Government will have to hang their head in shame in the Committee of Ministers when dealing with compliance with other judgments for being in default for more than six years?

Lord McNally: My Lords, slightly more respectfully perhaps, I again make the point that one of the advantages of a Question like this is that it enables us to learn the broad spectrum of opinion and hear details of research, which probably reassures Members over why we are taking such a time carefully to consider this matter before the meeting on 30 November.

Comment: This is not an exercise to learn the opinions of others. It’s the Court opinion and opinion of the Committee of Ministers which count. Any other opinions are irrelevant. After 5 years the UK is still researching how to fully comply? The Electoral Commission and Venice Commission have reported that the best way forward is to amend s.3 of RPA 1983. What other research does the UK need to do? My case is clear, when it was before the High Court Kennedy LJ, stated if s.3 could withstand the challenge from Article 3 of the First Protocol then that was the end of the matter. We know that it failed to withstand the challenge and must fall. Reassured by even more procrastination? Justice delayed is justice denied. The delay in this case has been unjustified from the start.

The UK needs to be examining the Interlaken process; it is about sanctions to be applied to rogue or pariah states. The Council of Europe has tired of Member States saying one thing in Europe and another thing back home. I am aware that the Council of Europe is closely monitoring the UK’s refusal to comply between now and November/December. Other Member States are calling for the UK to be brought to book. If the Council of Europe appears to give in to the UK, it means that its and the Court’s authority amount to nothing and the Council of Europe is finished. Given this the UK is very foolish to think it can get away with such a challenge. Particularly with the Interlaken Process “Strengthening subsidiarity: integrating ECHR case-law into national law and judicial practice”.

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