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Tuesday, February 22, 2011

Protection of human rights in the UK

Protection of human rights in the UK

Prisoners lose voting compensation bid’ – ‘The Independent’ – Friday 18th February 2010.

It would be interesting to read the judgment in the case. It is not yet on BAILLI so it is not yet clear what arguments were prayed in aid of by the applicants. What is clear is that Langstaff J has not invoked section 4(2) Human Rights Act 1998 declaring Section 3 Representation of the Peoples Act 1983 incompatible with Article 3 of Protocol 1 of the Convention which was incorporated into domestic law under section 1(1)(b) and Part II of Schedule 1 of the 1998 Act. As a High Court judge, he certainly had the jurisdiction to do so under section 4(5)(e) of the 1998 Act.

Although the Grand Chamber of the European Court of Human Rights in Hirst v United Kingdom (No 2) [2005] ECHR 681 upheld the lower court’s finding that there had been a breach of the protocol by the United Kingdom, this does not mean that a United Kingdom Court is bound to apply the judgment.

Section 2(1) of the 1998 Act is carefully crafted to ensure that the Courts take account of the judgements of the European Court. It does not bind our courts to the judgment of the court in Strasburg even though sections 6(1) and 6(3)(a) of the 1998 Act make it unlawful for a court to act in a way that is incompatible with convention rights.

Although there is no requirement for a court to be bound by the jurisprudence of the European Court, one might ask whether it is sensible to request or reasonable to require an English judge to have rather more regard to the judgement of the Grand Chamber who scrutinised the judgment of the lower court and arrived at a judgement which rejected the Appeal of the United Kingdom Government?

However, even if Langstaff J, or even the Supreme Court had given due weight to it, a declaration of incompatibility under section 4(2), would not have made the slightest difference at all to the continued operation of section 3 of the Representation of the Peoples Act 1983. The 1983 Act would have continued, indeed will continue to operate to disenfranchise all prisoners despite any ruling by either the Grand Chamber of the European Court, or, for that matter, any declaration of incompatibility. This is because the carefully crafted wording of section 4(6)(a) makes it clear that such declarations of incompatibility under section 4(2) have no effect on the continued validity and operation of the impugned statutary provision – the court, even the Supreme Court, has no power to strike down the impugned provision. Only Parliament can do that if feels inclined to do so (which it does not). Section 4(6)(b) makes it equally clear, that such a declaration is not binding at all on the parties in the case, in other words, the court may be ignored by the parties themselves in relation to any declaration made under section 4(2). The legislature have made sure that the court cannot, even if it wants to, order the parties to disapply the provision in question.

But what of the rights, if any to compensation for all of those prisoners who have been disenfranchised? Are they entitled to any under the 1998 Act given that the prisoner Hirst’s entitlement to compensation was upheld by the Grand Chamber?

The answer to that is no!

Although Article 13 of the European Convention guarantees the right to an effective remedy against a delinquent state found to have been in breach of Convention rights, the framers of the 1998 Human Rights Act deliberately omitted this provision. The reason this was done was that in public law, where judicial review cases are brought for infringements of the law by public authorities, there is no right of compensation for litigants who have suffered loss at the hands of public bodies who break the law and cause loss to a Crown Subject. To have incorporated it, would have meant that any applicant for judicial review who prayed in aid of Convention Rights would have been entitled to a remedy as a matter of law. Thus, those who say that Convention Rights are fully incorporated into domestic law are, in fact, quiet wrong. The United Kingdom legislature has ensured that no-one has the right to be compensated for a wrongful act of the state.

David Cameron has evinced an intention to review the workings of the 1998 Act in search for a more ‘British’ solution. He need not bother. The 1998 Act is an ideal British Solution since, as the case by the prisoners shows, the 1998 shows that the Human Rights Act 1998 guarantees nothing at all. What it does is that it serves the purpose its framers intended. That is to say, it creates a ‘right culture’ and in that regard, it has, in my view at least, become the victim of its own propaganda!

Speaking for myself, continuing to treat the European Court of Human Rights with contempt may play well with the voters kept ignorant by politicians and the press over many years, but it does us no favour at all as a country and does little to enhance our moral authority abroad when preaching the sanctity of freedom and the rule of law to others abroad.

Source: LawStudentForum

Comment: I think that the student who has written the above and claims that the HRA 1998 does not bind the Courts to the ECtHR judgments, is missing the point that the UK has agreed to be bound by the Convention and Court decisions. It is absurd to claim to be bound and yet not bound at the same time.

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