Let's say goodbye to Strasbourg and its daft decisions
The votes-for-prisoners fiasco shows why Britain should opt out of the European Court of Human Rights' jurisdiction, says Alasdair Palmer.
On Thursday, the House of Commons will vote on whether those serving prison sentences should be given the right to vote. It will be a free vote, but there is not much doubt about the outcome: a thumping majority against the proposal. And that means the Coalition will face a problem.
The Court of Human Rights in Strasbourg ruled as long ago as 2004 that in denying prisoners the vote, the UK denies them their rights under the European Convention. Sensibly, the last government did nothing to implement that decision. But the court reaffirmed it last November, and insisted that we must change the law and give those in prison the vote by this summer. Under our constitution, the Government can only change the relevant law (the Representation of the People Act 1983) if a majority of MPs vote to change it. Which is just what they won’t do.
So what happens next? First, lawyers will start suing the Government on behalf of prisoners who weren’t given the vote. The European court ruled that about £1,000 in compensation should be paid in each case. Given the numbers who could claim, and the legal fees, the total cost to the taxpayer could amount to more than £100 million. No government ever wants to pay that kind of money to rapists and murderers, but at a time when spending on everything else is being cut to the bone, ministers are desperate to avoid it.
As they should be. Even by its own low standards, the European Court’s decision was a very bad one. Nearly a third of the 17 judges dissented, writing a separate opinion which demonstrated very clearly the flaws in the majority’s reasoning. Giving prisoners the vote is not “a common European standard”: many European countries impose some restrictions on prisoners having the vote, and eight others have an outright ban. Even if it were “a common European standard”, that would not give the court the right to impose it on every country: different nations can legitimately have different electoral procedures and practices, just as they have different trial procedures.
This point is built into the court’s jurisprudence, which recognises that there is a “margin of appreciation” for countries to make their own laws. But the court ignores it whenever it feels like it, possibly because many of its judges are unqualified to interpret the law: some can’t even read English or French, the languages in which the judgments are written.
Most of the court’s members think its role for Europe is akin to the US Supreme Court’s for the American states. But it has never been given a mandate to unify into a single European system every law that might touch on some issue of human rights, and it has no authority to do so. The European Convention is not the equivalent of the US Constitution. The nations who signed it have never consulted their own electorates on whether the Strasbourg court should be the arbiter of what it requires. But the judges on the court won’t let such niceties stop their unifying mission.
The only way Britain can avoid being flattened by the Strasbourg steamroller is to opt out of its jurisdiction. That step (recommended by a Policy Exchange pamphlet published tomorrow) would not mean opting out of the Human Rights Convention. All it would mean would be that the UK Supreme Court would once again be the highest court in Britain. Just about everyone thinks that would be better than allowing foreign judges – who have no understanding of our legal traditions, or respect for the sovereignty of Parliament – to decide what our law should be.
What would happen if we opted out of Strasbourg’s jurisdiction? We would avoid its silly decisions. There would be a lot of shouting from Europe’s lawyers and politicians, but short of military invasion, they can’t force us to submit. And even the judges recognise that invading Britain is not an appropriate “remedy”. It wouldn’t be difficult to wriggle out from Strasbourg’s suffocating grasp – and the sooner we do so, the better.
Comment: It is dishonest of you not to mention that you are the editor of the Policy Exchange! Is the Daily Telegraph paying you to come on here and advertise your own products? In any event, your whole article is penned with intellectual dishonesty.
Where do you provide any evidence to support your far fetched claim that the ECtHR produces daft decisions? Surely, you are not suggesting that given the highest court in Europe's decisions are final subject to your say? Who are you to judge?
Votes for prisoners has turned into a fiasco. But, who is responsible for this? Certainly not Strasbourg. It was first Charles Falconer and then Jack Straw under Labour not fully complying with the judgment in my case. Instead of condemning this unlawful conduct, you say they acted sensibly!
The sideshow on Thursday is unlawful because the proposal being put forward is unlawful. It contains false information claiming that the Court held that Parliament should debate the issue. The Court has already decided the issue because Parliament abdicated responsibility when it should have debated the issue, all that remains is for the UK to fully comply with the Court decision. The drafters of the proposal Jack Straw, David Davis and Dominic Raab will be in contempt of Parliament for misleading Parliament and liable for suspension or expulsion.
Parliament, the Executive and Judiciary are under an obligation to abide by the Convention and Court decisions and implement both within the UK. Lest we forget, the UK has been found guilty of a serious human rights violation. It can only remove the guilt by remedying the breach and not making matters worse by defying the Court.
It is not true that a law incompatible with the Convention and Court decisions requires a majority vote by MPs to change it. It can be changed by Kenneth Clarke simply making a remedial order under s.10 of the HRA and laying it before Parliament. Sorted. Simples. No vote allowed, because no vote needed. Kenneth Clarke will need courage but he is damned if he does and damned if he doesn't, so he may as well do what is right.
You have a total lack of understanding of the subject matter if you think what happens next is that lawyers will start suing the Government. Already prisoners are entitled to £135m in damages for loss of the vote in the 2009 European election and 2010 general election. It will be £270m if they don't get to vote in Scotland, Wales and Northern Ireland and the AV referendum in England in May 2011. The time for the Government to worry about not paying damges was during the time you said Labour was being sensible! What happens next is that the UK has to go before the Committee of Ministers in Strasbourg on 8 March 2011. Given that the Parliamentary Assembly of the Council of Europe on 26 January has already debated and voted to sanction the UK, the CoM will inform the UK of the nature of the sanction(s) to be applied. It will include removing the vote of the UK in both the CofE and EU.
The Court has already ruled that the UK's law is outside of the margin of appreciation granted by the CofE. The judges are far better legally qualified to make decisions than you are qualified to write this article. The first rule of writing is only write what you know about, or you get to look foolish when an expert like me comes along and rips it to pieces bit by bit.
The Council of Europe has both the mandate and authority to harmonise the law of Member States within the CofE when the UK signed the Treaty of London 1949 (Statute of the Council of Europe).
It is plainly wrong to claim that the UK can opt out of the ECtHR's jurisdiction, it is covered under domestic law, for example, the HRA 1998. The Convention requires the ECtHR is the supreme legal authority. The UK Supreme Court is already the highest court in Britain. However, it is neither supreme over Parliament nor the ECtHR. It's a bit of a joke really. That's like calling a mole hill Mount Everest! In Europe it is the sovreignty of the people and not Parliament which is supreme as it should be in a true democracy.
Strasbourg doe not need a military invasion to force the UK to submit. If it is not difficult to wriggle off the Strasbourg hook then why hasn't the solution been been found by now? It's because I ensured that there was no legal loopholes. Any departure from my case is a legal minefield.
Comment by HJ777:
This an instance where the ECHR offers useful protection.
I feel distinctly uncomfortable that it is within the power of governments to deny people the opportunity to vote against them by imprisoning them. If we take this route, what is to stop governments making peaceful public protest an imprisonable offence and thus depriving its opponents of the vote?
In my opinion, prisoners should only be denied the vote if their offence has deprived someone else of their vote, for example murderers.
Comment: Save for the last paragraph I agree with this comment. My case and Frodl v Austria make it plain that even murderers are entitled to the vote.
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