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Tuesday, November 23, 2010

The French-Anglo War of 30th November 2010

The French-Anglo War of 30th November 2010

The battle field is Strasbourg, France, and the combatants are the Committee of Ministers of the Council of Europe versus the UK State, that is, the Government (Executive), Parliament and Judiciary. The UK is attempting to shield behind public opinion, the media and the uninformed sound bites of politicians. However, in Hirst v UK (No2) the Grand Chamber of the European Court of Human Rights ruled out denying the franchise to convicted prisoners based upon what might offend public opinion.

In October 2005 it appeared that the final salvo had been fired in the UK government’s defence of the disenfranchisement of convicted prisoners” (Jago, 2007). The legal battle may have been won on 6th October 2005, but instead of the ECtHR’s decision being directly applied into domestic law it falls to the Committee of Ministers to supervise execution of the judgment. This does not remove the onus upon the UK to fully comply with the Court’s judgment, but by passing the buck in this way to politicians it produced the unsatisfactory situation whereby the UK has ignored the Committee of Ministers increasingly strongly worded warnings and condemnations for 5 years.

Given that the Court had already excluded public opinion from the issue, it beggars belief that the Committee of Ministers allowed the UK Government under Labour to embark on two consultation exercises supposedly to gauge public opinion on the question of ‘whether convicted prisoners should get the franchise?’! In effect, the UK ran political rings around the Committee of Ministers. The onus is now firmly on the Committee of Ministers to ensure that the Coalition has no more time to dither any longer, or given any more wriggle room, and to invoke Rule 11 ‘infringement proceedings’ and send Hirst v UK (No2) back to the Court for a ruling on the UK’s failure to fully comply with the judgment. By using this tactic the UK has 6 months notice to get its act together, and if it does so then there is still scope for a final resolution. If this leverage is not applied then I can see this whole thing dragging out for another 5 years!

The Coalition is now in a weaker position in Strasbourg than Labour when they engaged in delaying tactics. The reasons being that the Council of Europe got new powers under the Lisbon Treaty, particularly in relation to Protocol 14: and because when a case reaches the 5 year stage of non-implementation the Committee of Ministers ratchets up the pressure being applied to the offending Member State and this includes applying sanctions. Under Labour the UK took advantage of the fact that the Committee of Ministers was a toothless watchdog. What has shifted the balance of power to the Committee of Ministers is the Interlaken process. The Interlaken Conference in February 2010 produced the Interlaken Declaration, which is, in my view, binding upon the UK because the then Attorney General, Baroness Scotland, signed it and laid copies before both Houses of Parliament.

In addition to the Interlaken process, the European Union has joined forces with the Council of Europe in relation to the European Convention on Human Rights. On 16th of November 2010 the United Nations also joined forces with the Council of Europe proclaiming “Human rights must be pursued with determination everywhere”. I think it is time that the UK woke up and smelled the coffee.

I urge the Committee of Ministers to be on their guard for any proposals that the UK may put forward on the 30th of November which entails burying Hirst v UK (No2) within plans for wider constitutional reforms. The case was taken to Strasbourg by individual petition, and judged on its own merits, and should be fully complied with as a discrete issue by the UK. The wider constitutional reforms will have to be argued in Parliament, and will be subject to Bills having to be read and passed up and down between the Houses of Commons and Lords before they become law, if ever. It is too uncertain. Especially in a country where there is no enforcement machinery in place to ensure that the UK fully complies with the ECtHR judgments. It would be remiss of the Committee of Ministers now it has sharp teeth and not to bite with them when taunted. The UK is engaged in a power play with the Council of Europe, therefore it remains for the Committee of Ministers to make it plain that the UK is equal to a rogue or pariah state and must be dealt with accordingly.

This is the latest Committee of Ministers decision in Hirst v UK (No2)…

1092nd DH meeting – 15 September 2010

Section 4.3

- 1 case against the United Kingdom
74025/01 Hirst No. 2, judgment of 06/10/2005 - Grand Chamber

Interim Resolution CM/ResDH(2009)160


The Deputies,

1. recalled that in the present judgment, delivered on 6 October 2005, the Court found that the general, automatic and indiscriminate restriction of the right of convicted prisoners in custody to vote, fell outside any acceptable margin of appreciation and was incompatible with Article 3 of Protocol No. 1 to the Convention;

2. recalled that since its 1059th meeting (June 2009), the Committee has urged the United Kingdom to prevent future, repetitive applications by adopting general measures to implement the judgment;

3. deeply regretted that despite the Committee’s calls to the United Kingdom over the years to implement the judgment, the risk of repetitive applications to the European Court has materialised as the Court has communicated 3 applications to the government with a view to adopting the pilot judgment procedure and has received over 1 340 applications;

4. noted, that according to the information provided by the United Kingdom authorities during the meeting, the new government is actively considering the best way of implementing the judgment;

5. 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;

6. called upon the United Kingdom, to prioritise implementation of this judgment without any further delay and to inform the Committee of Ministers on the substantive steps taken in this respect;

7. highlighted in this connection that, within the margin of appreciation of the state, the measures to be adopted should ensure that if a restriction is maintained on the right of convicted persons in custody to vote, such a restriction is proportionate with a discernible and sufficient link between the sanction, and the conduct and circumstances of the individual concerned;

8. decided to resume consideration of this item at their 1100th meeting (November-December 2010) (DH) and instructed the Secretariat, in the absence of any concrete developments, to prepare a draft second interim resolution.

And this is the latest response by the UK…

On the 16th of November 2010 Kenneth Clarke, Secretary of State for Justice and Lord Chancellor, was questioned by the Joint Committee on Human Rights. There is a video available, and the uncorrected transcript provided below begins at 15.31pm.

The Chairman: Could we now move on to the implementation of human rights judgments, particularly with regard to prisoners’ voting rights?

Q36 Lord Dubs: I wonder if I could raise the vexed question of prisoners’ voting rights. Could I say, and I’m sure I’m not allowed to say it, that as long as there’s a coalition Government, I think you two are the good guys, okay? Would you care to comment on the issue of prisoners’ voting rights, which I know has raised a wave of hysteria out of all proportion to the issue?

Mr Kenneth Clarke MP: Shall I kick off? The hysteria is rather late coming. The relevant judgment is five years old. To my recollection, the previous Government carried out at least two consultation processes on how they were going to implement it. I have no doubt that because of some of the reaction, in the end they came to no conclusions, so we do have to come to a conclusion on this. We have a mounting number of cases against us and we have to come to some conclusions, otherwise we’ll have the absurd situation whereby we’re still considering whether or not to comply. We’re not there yet, but some court will start awarding damages to all these people making claims against us. If there’s one thing that will stoke up public fury even higher, it is if people start getting awarded damages for some breach of their human rights by not being allowed to vote. We’re having to consider how to implement the legal obligation and I think there’s no point in getting away from the legal obligation. The fact is the extent of the legal obligation is a little confused. We’ve now got two judgments and various comments both from British and European courts, but two European judgments that aren’t really consistent with each other. Compliance with these judgments by different members of the Council of Europe has been very varied. We’re by no means the only one that is a long way behind, but we’re going to have to come to a conclusion as soon as we can do so. The hysteria was slightly provoked by some rather extreme fears that people had in Parliament. I have to be cautious because the Government has to take a considered view on all this, but people who had the idea that their local government elections were going to be dominated by rapists, murderers and all the rest of it were taking a rather strong view of where we’re likely to go. It’s the blanket ban on all prisoners having the vote that was not upheld by the European Court. I hesitate on this occasion to go into the nuances of what lies below that-that has yet to be decided. I heard some of the fears expressed in the Chamber of the House of Commons. I didn’t think anything was going to occur of the kind that was causing such alarm to quite a lot of my colleagues.

Lord Lester of Herne Hill: I don’t know whether you know this, but Cyprus and Ireland, which are not directly bound, overnight implemented it simply by giving postal votes. Hong Kong in its own way did, and for some reason there was no fuss in those jurisdictions at all. Of course the Committee of Ministers will be considering this in a couple of weeks’ time, and indeed some of the officials who are on that committee on the enforcement mechanism are sitting behind you. Will you be reporting to them for what’s called the DH meeting on your progress?

Mr Kenneth Clarke MP: Yes. I hope we make progress in the next fortnight but I can’t guarantee that. I am aware of that. There will be a fuss here. I have not the slightest doubt. On the actual mechanics of voting, I don’t see any problem at all. Prisoners on remand can vote now. Not many of them bother to do so, but prisoners on remand do vote by post if they want to. Facilitating the vote is not really the problem. They are usually registered in their home constituency; they are not all registered in the prison where they happen to be currently and involuntarily residing. A remand prisoner just casts a vote if he or she wants in his or her home constituency. I don’t think anyone’s ever complained about that, probably because people aren’t even aware of it. Of course, there is no doubt that they should be allowed to vote, because they haven’t been convicted of anything; they are being held pending trial.

The UK is waving the White Flag of Surrender in one hand, and firing a gun at the Committee of Ministers, Council of Europe and ECtHR in the other hand. If the Committee of Ministers does not take this opportunity to make an example of the UK, as decided at the Interlaken Conference then the Court is finished. The Convention is unenforceable and therefore meaningless. “No more Jaw-jaw, it’s war-war” (Churchill). And the Suffragette Movement’s motto was “Deeds not words”. Prisoners have a saying “Put up, or shut up”. Actions speak louder than words. If the Committee of Ministers fails to take action this time it can only mean that they are as bad as the UK and just as responsible for the human rights abuse of 75,000 convicted prisoners. To allow the UK to continue to vote in the Committee of Ministers, Council of Europe, European Union and United Nations is only adding insult to injury. At the very least the UK should have its vote suspended until it fully complies with Hirst v UK (No2). As Frodl v Austria decided, relying upon Hirst v UK (No2), all prisoners must have the human right to vote because they are all human beings, including murderers, rapists and paedophiles.

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