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Tuesday, February 01, 2011

Democratic Club rules or Bullingdon Club rules?

Democratic Club rules or Bullingdon Club rules?

According to the Daily Mail on 19 January 2011:

Tory rebels given green light to crush prison votes

In Administrative law I am a red light theorist, that is, my role is to curb the power of the state.

In February 2010, the European Court of Human Rights was at the crossroads. It's authority was being challenged (see the Interlaken Conference). The 47 Member States gave the Court the green light.

The Daily Mail continues with its version of events:

"David Cameron is quietly giving a green light to Tory rebels seeking to crush plans giving prisoners the vote for the first time in 140 years.

Senior sources said it would be ‘quite helpful’ if Parliament rejected the move, which has been forced on ministers by a series of European court rulings.

The Government would then go back to the European Court of Human Rights in Strasbourg and say its attempts to comply by changing the law had failed

I don't know what game David Cameron is playing. However, take your pick...

Democratic Club rules or Bullingdon Club rules?

Joint debate

"THE PRESIDENT – We now come to the joint debate on the implementation of judgments of the European Court of Human Rights, Document 12455, which is presented by Mr Pourgourides on behalf of the Committee on Legal Affairs and Human Rights...I call Mr Pourgourides to present the first report.".

"...We know that the Committee of Ministers has the principal task of supervising Strasbourg Court judgments; that is clearly laid down in Article 46, paragraph 2, of the European Convention on Human Rights. But what if, despite the efforts made by our diplomatic colleagues, states are dilatory or simply not willing to comply speedily with Strasbourg Court judgments? Are we, the representatives of the legislative organs of the 47 countries, meant to sit back while the greatest achievement of the Council of Europe collapses under the weight of its own work or of the inability of the Committee of Ministers to force a number of states to comply rapidly and fully with Strasbourg Court judgments?

"Of course, we cannot let that happen...

"...The Assembly and national parliaments are therefore duty-bound to play a more proactive role in this respect. I quote from paragraph 2 of the draft resolution: “if this is not done, the key role of the Convention, its supervisory mechanism and the Council of Europe as a whole, in guaranteeing the effective protection of human rights in Europe is likely to be put in jeopardy”. The current state of affairs, Mr President, is simply scandalous...

"...I find it simply unacceptable, for example, for states belonging to the democratic club that is the Council of Europe not to take immediate and strong measures...

"In the draft resolution, there is a series of recommendations to each of the states that I have mentioned, urging them to put their respective houses in order urgently – now – and not in five, seven or 10 years’ time.

"Furthermore the Assembly is urged by the Committee on Legal Affairs and Human Rights, which adopted this report unanimously, to ensure that national parliaments that have not yet done so introduce specific mechanisms and procedures for effective and regular parliamentary oversight of the implementation of the Strasbourg Court’s judgment and for states to set up some form of decision-making body, at the highest political level, to take full and direct responsibility for the co-ordination of all aspects of the domestic implementation process.

"Paragraph 213 of the report states: “We, the Assembly, as a statutory organ of the Council of Europe (and at the same time national parliamentarians), should not meekly accept the premise that the Committee of Ministers has ‘exclusive jurisdiction’ on this subject. When the Court judgments are not fully and rapidly executed, we – parliamentarians – also have a duty to help supervise the execution of the Court’s judgments. The credibility and viability of our European system of human rights cannot be left solely in the hands of the executive organ of the Council of Europe (in effect, diplomatic representatives of governments). Closely tied to this is the idea which I mooted back in August 2009, to the effect that the Assembly ought to consider – in the future – suspending the voting rights of national delegations when their parliaments do not seriously exercise parliamentary control over the executive in cases of non-implementation of judgments of the European Court of Human Rights”.

Thank you for listening to me".

I don't think that David Cameron is listening to Mr Pourgourides, PACE, or the Committee of Ministers. It calls into question his judgement, again, like with his appointment of Andy Coulson as his spin doctor. Rather, for some strange reason, he is instead listening to the mumblings of the 1922 Backbench Committee. I don't think that the Tory rebels will succeed with their minor distraction politics in a backroom of the Commons, because they appear to be fumbling and stumbling along whereas the main event is in Strasbourg and there is a strategic and well thought out plan to implement. The only good thing to come out of the Tory rebel revolt is that they have exposed the coalition's proposals, to limit the vote to those convicted prisoners serving less than 4 years, as not being worth the paper they are written on. On the other hand, the 41 page judgment of Hirst v UK (No2) in black and white is the leading authority. In plain terms, it means that neither David Cameron's nor the 1922 Backbench Committee's authority counts for anything in the wider scheme of things. The Coalition's proposals are in tatters, but the Court's and my plans have not changed one iota.

Notice the anonymous "Senior sources". One thing I am very sure about is that it would definitely not be "quite helpful" for Parliament if Parliament rejected the authority of the Court because Parliament does not have this authority to do so:

Article 32 – Jurisdiction of the Court 1

1. The jurisdiction of the Court shall extend to all matters concerning the interpretation and application of the Convention and the protocols thereto which are referred to it as provided in Articles 33, 34, 46 and 47.
2. In the event of dispute as to whether the Court has jurisdiction, the Court shall decide.

Article 44 – Final judgments

1. The judgment of the Grand Chamber shall be final.

"The Committee of Ministers has itself emphasised the unconditional nature of the obligation to abide by a judgment".

On the other hand, it would serve Parliament well if it instead rejected the moves made by the 1922 Backbench Committee and Backbench Business Committee on 10 February. The latter is fronted by David Davis, Dominic Raab and Jack Straw. They are political suicide bombers who are intent on blowing themselves up.

As shown above "The judgment of the Grand Chamber shall be final" therefore there is no power to go back to the Court and admit failure by a lack of Parliamentary will to implement the judgment. This is not a case where a teacher writes on a pupil's school report "Must try harder". There are many in our prisons who are there because they ignored or failed to abide by a court judgment. The Lisbon Treaty's Protocol 14 now means that the Committee of Ministers can send a case back to the Court for a ruling on non-compliance, under Rule 11 'infringement proceedings' and then the CoM can apply sanctions up to including suspension and expulsion from the Council of Europe.

The Daily Mail continues to spout rubbish: "The suggestion that ministers are relaxed about the outcome means the Government now looks almost certain to face defeat. Alternatively, whips may propose a compromise motion in which MPs insist the number of prisoners voting must be kept to an absolute minimum.

That could allow ministers to negotiate a compromise with Europe which would see the sentencing threshold at which inmates are denied the vote dramatically scaled back – from four years to one year".

As the Court has ruled all must get the vote, there will be no accepting of any compromise in Parliament and no compromise from the Committee of Ministers:

"Participants should avoid addressing arguments already rejected by the Court".

The Daily Mail gives them enough rope: "Labour’s former justice secretary Jack Straw has joined forces with senior Tory David Davis to secure an early Commons vote on the issue. The pair say it is a test of authority between Parliament and the ECtHR and hope the debate, to take place next month, will embolden the Government to defy the court. It has been forced to enfranchise convicted criminals after losing a ruling at Strasbourg".

I would back this next speaker to beat up the pair of clowns above in any debate on this issue...

"Ms POURBAIX-LUNDIN (Sweden) – We have all joined this Organisation because we believe in the rule of law, democracy and human rights. The Council of Europe institution that is best known to the public is the European Court of Human Rights. The fact that a citizen in any of our member states can hand in a complaint to the Court is an outstanding sign of democracy that most people in the world can only dream of. In order for the Court to maintain its high public status, member states must implement its judgments...

...Some states feel that the Court is against them and that it makes political decisions, but that is not true. Over the past decades, my own country, Sweden, has been convicted 25 times. It is certainly not a pleasant experience to have a judgment against you, either as an individual or as a state. Nevertheless, we must accept it. This is what we have agreed to; we have joined this Organisation and we must live up to it. What matters is the human dimension. The right of an individual to complain against a state is something that we should be proud of and work together for.

The Committee of Ministers has a responsibility to put pressure on the government in question to execute the Court’s judgment. We, as parliamentarians, have the ability and the duty to do so, too. If a member state has had many citizens who complained to the Court about almost the same matter, that is a signal to its government that something is really wrong in the country. It lies in the hands of member states to ensure that the Court does not end up with a heart attack – a complete breakdown. If every state does its homework in living up to the principles of human rights, democracy and the rule of law, I am sure that complaints to the Court will go down immensely

1 Text amended according to the provisions of Protocol No. 14 (CETS No. 194).


Charles Cowling said...

Bunch of Canutes. An extraordinary business getting incrementally odder, madder and more incredulity-stretching. What is it, a post-imperial thing? Just can't stand Johnny Foreigner telling us what to do? This is nastiness gone mad.

Barnacle Bill said...

It's all gonna end in tears for them.
Cameron should just pass the legislation, take the hit in popularity for a while, and get on with sorting the rest of the mess left behind by NuLabor.