Tovey and others wronlgy decided

Tovey and others wronlgy decided

Langstaff J, has erred in law.

Unlike the media and politicians who attack a court judgment on grounds other than law, I stick to the law when criticising a judgment.

I contend that the HRA 1998 is incompatible with the Convention, for example, Articles 1 and 13 guaranteeing everyone is entitled to their human rights under the Convention, and an effective remedy before a national authority are absent.

According to Alex Bailin QC, Matrix Chambers, at the ALBA 8th Annual Human Rights Act Seminar, 5 Oct 2010:

“The worst example of the dialogue is probably the response to the ECtHR GC decision in Hirst v UK (No.2) (2006) 42 EHRR 41 which held that the blanket ban on prisoners’ voting is disproportionate. Until last month (when the Deputy PM announced that the government will reconsider the ban, after the Council of Europe had given the UK a 3-month ultimatum), the government had effectively ignored the ECtHR ruling for over 5 years. If that state of affairs reigned supreme then the HRA would be, frankly, toothless” (Source).

The intent of Parliament in passing the HRA 1998 was that citizens would not have to go to Strasbourg, to enforce their human rights, and also save the UK from the embarrassment of adverse judgments before the ECtHR. Clearly, my High Court application failed in this respect. This is because Kennedy LJ, abdicated responsibility and deferred to Parliament.

“However, following the decision of the Divisional Court in the present case, the Supreme Court on 31 October 2002 in Sauvé v. the Attorney General of Canada (No. 2) held by five votes to four that section 51(e) of the Canada Elections Act 1985, which denied the right to vote to every person imprisoned in a correctional institution serving a sentence of two years or more, was unconstitutional as infringing Articles 1 and 3 of the Canadian Charter of Rights and Freedoms:

“1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

“3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”

36. The majority opinion given by McLachlin C.J. considered that the right to vote was fundamental to their democracy and the rule of law and could not be lightly set aside. Limits on it required not deference, but careful examination. The majority found that the Government had failed to identify particular problems that required denying the right to vote and that the measure did not satisfy the proportionality test, in particular as the Government had failed to establish a rational connection between the denial of the right to vote and its stated objectives” (Hirst v UK (No2).

It was a simple task for Kennedy LJ, to perform all he had to do was declare s.3 of ROPA 1983 to be incompatible with Article 3 of the First Protocol of the Convention. By not doing his job it meant that he made a mockery of the separation of powers doctrine. He failed to provide the necessary balance and checks on abuse of power by Parliament, and the Executive. Kennedy LJ, stated if s.3 of ROPA 1983 could withstand the challenge from Article 3 of the First Protocol, then than was the end of the matter. We now know that it could not withstand the challenge. And that should have been it.

Criticism can be levelled at the Council of Europe for the way that the Court decisions are handed over to politicians to supervise execution of the judgments. What is needed is direct effect as with EU law and the ECJ decisions.

The Interlaken Conference in February 2010 looked at the challenge faced by the Court by its 120,000 back log of cases, many repeat applications whereby Member States had not implemented the Court decisions. The Court said it felt its authority was being threatened. It was decided that the Court and the Council of Europe should have new powers under the Lisbon Treaty. It was decided that the subsidiarity principle from EU law should apply to Member States. This requires public authorities to remedy breaches of human rights following the Court decisions. It is all covered in the Interlaken Declaration, signed by the then Attorney General, Baroness Scotland, and when laid before Parliament it is binding on the UK.

It was also decided that Human Rights would assume Higher Law status. This means that sovereignty of Parliament has to take 3rd place, because sovereignty of the people takes 2nd place.

Langstaff J, was relying upon Chester. However, Chester 1 and 2 were decided wrongly.

Although s.6(1) of the HRA 1998 was carefully drafted to allow the Secretary of State for Justice to get off the legal hook. It all hinges on if he could not have done anything else, then s.3 of ROPA 1983 and supremacy of Parliament stand. However, the Secretary of State for Justice could have acted otherwise. For example, he has the power to make a remedial order under s.10 of the HRA 1998 and amend s.3 of ROPA 1983 and lay it before Parliament.

I feel a legal challenge coming on in either the CofA or UK Supreme Court.