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Monday, January 03, 2011

On Days Like These/This is the self-preservation society

On Days Like These/This is the self-preservation society

"Hang on a minute lads, I've got a great idea...".

The comment below is awaiting moderation over at UK Human Rights Blog.

I have long held the view that our society is made up of closed prisons (the penal estate) and open prison (liberty/freedom).

For the first time in English penal history New Year's Day saw a riot in an open prison. Wonders never cease, in the Daily Mail online today is this from Peter McKay:

"Was it sensible for officers at Ford Open Prison to breathalyse prisoners around midnight on New Year’s Eve? During the subsequent riot, fires destroyed six blocks, a mail room, gym, snooker room and pool room (it sounds grander than White’s club).

The management of the prison knew alcohol (as well as other forbidden items) was being carried into Ford. Local residents told them all about it. So why not just find the stuff before it’s consumed?

Breathalysing prisoners around ­midnight on New Year’s Eve is stupid. By all means punish the rioters (as prisons minister Crispin Blunt suggests), but discipline whoever was responsible for the untimely breath test".

On Days Like These/This is the self-preservation society...

Picture the scene, the coalition battle bus is hanging over the White Cliffs of Dover...

"Hang on a minute lads, I've got a great idea...".

It is respectfully submitted that Burton J, in para. 13, of Chester [2009] EWHC 293 (Admin) was wrong when he stated:

"Since the Government is proposing to put primary legislation before Parliament, it is thus neither necessary nor sensible for them to consider the alternative route of remedial action pursuant to s.10 of the HRA 1998, in the light of the Declaration of Incompatibility" in Scott v Smith [2007] SC 345.

In the light of the threatened Tory rebellion over the issue of convicted prisoners and the vote, it is submitted that a constitutional crisis may be averted if the Secretary of State for Justice, Kenneth Clarke, took this course of action to fully comply with Hirst v UK (No2). Lord Lester of Herne Hill, QC, has previously suggested this as an option in one of the reports from the Joint Committee of Human Rights.

The right wing media and 1922 Committee appear to be rioting. Hotheads do not make for good interpretations (if they can be called that) of Hirst v UK (No2). Quite apart from the fact that under European law the UK has no authority to interpret my judgment. This is a matter for the ECtHR and Committee of Ministers of the Council of Europe. James Forsyth on the Spectator Blog yesterday is up in arms about the Government's proposals of allowing those convicted prisoners serving 4 years and under to vote. He claims that the coalition's no option but to comply claim is false. He states:

"In truth, it could have complied with the court’s verdict by setting the cut-off point at, say, a year".

It is submitted that both the coalition's proposals and Forsyth's claim are wrong. My case is the leading authority on the subject, and it is arguable that I am the foremost leading authority on my case in the country. I refuse to go along with the King's New Clothes lie, because the naked truth is, it is clear to me that the judgment states that all convicted prisoners must get the vote.

As the Grand Chamber states:

"The present case highlights the status of the right to vote of convicted prisoners who are detained".

This reasoning is based upon the text of Article 3 of the First Protocol. Including "having regard to the preparatory work" behind the Article "and the interpretation of the provision in the context of the Convention as a whole". While the right may rant and rave in the media (including new media), and in backrooms in the Houses of Parliament (1922 Committee), and claiming to be speaking for public opinion:

"The Court has had frequent occasion to underline the importance of democratic principles underlying the interpretation and application of the Convention... and it would use this occasion to emphasise that the rights guaranteed under Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law...As pointed out by the applicant, the right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion, as may be illustrated, for example, by the parliamentary history of the United Kingdom and other countries where the franchise was gradually extended over the centuries from select individuals, elite groupings or sections of the population approved of by those in power. Universal suffrage has become the basic principle...Any departure from the principle of universal suffrage risks undermining the democratic validity of
the legislature thus elected and the laws which it promulgates. Exclusion of any groups or categories of the general population must accordingly be reconcilable with the underlying purposes of Article 3 of Protocol No. 1...There is, therefore, no question that a prisoner forfeits his Convention rights merely because of his status as a person detained following conviction. Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of democratic society, for automatic disenfranchisement based purely on what might offend public opinion".

Human Rights, Democracy and Rule of Law are what my case is all about. The UK had argued that it was entitled to disenfranchise convicted prisoners because it was claimed that that is what public opinion demanded. In the concurring opinion of Judge Caflisch:

"...the decisions taken by this Court are not made to please or indispose members of the public, but to uphold human rights principles".

I do not support my country right or wrong. Rather, as a human rights defender, I support the European position of human rights being higher law. The battle lines are being drawn. I would contend that the losers will be ignorance, prejudice and fear. In my view, Paul Goodman over at ConservativeHome is a loser for his suggestion that David Cameron maintains the status quo, that is, no votes for prisoners, "and returning the matter to the court, thus meeting its challenge". Excuse me, but the challenge was mine and the UK lost, the Court decision is final. There is a mistaken belief that the Council of Europe will tolerate a Member State being not a democracy but totalitarian or authoritarian, and which ignores human rights and the rule of law. Think again. If Hirst v UK (No2) returns to the Court, it will be my doing, and the UK will be deemed a rogue or pariah state and an outcast in Europe. That is, an outlaw. No trade with either Council of Europe or EU countries, sanctions imposed by the UN. As for Raab: "Who is seriously suggesting that Britain would be kicked out of the Council of Europe?". I am, and so are the other 46 Member States. Don't forget since the Lisbon Treaty the UK will also get kicked out of the EU. As a consolation, I suppose we could become the 51st state of America...

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