Kenneth Clarke's speech fisked

Kenneth Clarke's speech fisked

High level Conference on the Future of the European Court of Human Rights
Izmir, 26-27 April 2011

The Izmir Conference pursues three main goals in the context of ensuring the effectiveness of the supervisory machinery set up by the European Convention on Human Rights and maintaining momentum in the efforts to achieve this. The first is to make a preliminary assessment of the impact of Protocol No. 14. The second is to take stock of what has been achieved by the reform process launched by the Interlaken conference in February 2010 and the third is to reflect upon further ideas for pursuing that reform.

Whilst it may well be in order for Kenneth Clarke to thank the Turkish Chair of the Committee of Ministers for hosting the Conference in Turkey, he is out of touch when he states in his speech "I would like to congratulate you on choosing as the topic for this conference the reform of the European Court of Human Rights". In truth, the Council of Europe chose the topic!

According to Kenneth Clarke's speech "The British people have an unshakeable belief in individual liberty, freedom, fairness and a sense of what is right". Whatever, he then makes a false statement "that human rights are integral to our view of the world". Followed by another false statement "which we in Europe are able to rely on the Convention to protect". And yet another false statement "The UK remains as committed to the Convention as the day we first ratified it, 60 years ago last month".

I have a problem with liars!

You won't find Kenneth Clarke's speech to the High Level Conference on the Future of the European Court of Human Rights in IZMIR, 26 – 27 April 2011, on the MoJ website.

According to Kenneth Clarke's speech "The British people have an unshakeable belief in individual liberty, freedom, fairness and a sense of what is right". Whatever, he then makes a false statement "that human rights are integral to our view of the world". Followed by another false statement "which we in Europe are able to rely on the Convention to protect". And yet another false statement "The UK remains as committed to the Convention as the day we first ratified it, 60 years ago last month".

Prisoners are a national minority subjected to "Civic Death". Under the Convention and ECtHR decisions prisoners are human beings entitled to their human rights. The Prisoners Votes Case proves that human rights are not integral at all. And that prisoners cannot rely upon the Convention to protect them from State abuse and victimisation by wider society. If the UK was really committed to the Convention, to secure for all within its jurisdiction the human rights contained within the Convention, why has the UK failed to fully comply with Hirst v UK (No2) for over 5 years?

Over to you Kenneth Clarke for an answer.

Meanwhile, he continues with his speech "But the power of the Convention relies on an effective and efficient Court process which applies human rights consistently and carefully. This includes due respect for the decisions of national courts and of democratic national parliaments. I fear that the Court’s current position and backlog – even with the changes brought about by the Fourteenth Protocol – are unsustainable. Indeed, my fear is that they could threaten the authority of and respect for the Convention itself".

Apparently, Kenneth Clarke fails to appreciate that the power of the Convention also relies upon Member States honouring their obligations to abide by the Articles of the Convention including abiding by the Court's decisions. What Hirst v UK (No2) shows, is that the High Court decisions to defer to Parliament on the issue of prisoners human right to the vote was a violation of the Convention. Therefore, it is wrong for Kenneth Clarke to call for due respect where it is not warranted. The UK is now responsible for a backlog of 3,500 cases from prisoners seeking the vote before the Court, and all because the UK has failed to fully comply with the Hirst v UK (No2) judgment. This unlawful conduct by the UK is what is threatening the authority of and respect for the Court and Convention.

"In the opinion of the Government of the United Kingdom, we must find better ways for the Court to focus quickly, efficiently and transparently on the important cases that require its attention. Judges need the time and the means to produce high quality reasoned judgments on the sensitive issues before them. And we must ensure that the best possible candidates become judges of the Court. Steps in this direction will help the Court in its important work: providing binding interpretations of the Convention and intervening on truly significant issues where national courts have failed".

Whilst Hirst v UK (No2) is not the most important case the Court has dealt with, nevertheless it remains a leading case. Indeed, the Committee of Ministers entrusted to supervise execution of the Court's judgments has elevated Hirst v UK (No2) to enhanced case status. Therefore, it is deemed by the Council of Europe to be a significant issue upon which the national courts have failed. It is a very good indication that there is a structural and systemic failure within the UK.

"But most fundamentally, the British government thinks that we need to reaffirm that it is individual States and their courts which have primary responsibility for implementing the Convention and granting effective remedies for any violation. In this way, we ensure that our citizens can take full ownership of their rights".

The Council of Europe employs the subsidiarity principle which places the onus upon Member States for abiding by the Convention and to provide effective remedies. However, only when a Member State fails in relation to both of these does the Council of Europe step in to fill the gap left vacant by the Member State. As for taking full ownership of our rights, it would help if the HRA incorporates Articles 1 and 13 of the Convention. The former guarantees everyone is entitled to the rights under the Convention and the latter provides for an effective remedy.

"This boundary is of paramount importance. If the Strasbourg Court is too ready to substitute its own judgment for that of national parliaments and courts that have through their own processes complied with the Convention, it risks turning the tide of public opinion against the concept of international standards of human rights, and risks turning public opinion against the Convention itself. In Britain, it is going to be really quite difficult to persuade Parliament to pass legislation to comply with the Court’s judgment on vote for prisoners. This is regarded by our Parliament as a domestic political issue, on which there are valid arguments on both sides".

The Council of Europe has been very patient with the UK for over 5 years. The UK was given a wide margin of appreciation to fully comply with Hirst v UK (No2). However, it is not so wide as to ignire the Court decision. If the national courts and Parliament processes had complied with the Convention, then the Court would have rejected my application. The Court has already dispensed with the public opinion argument, stating that offending public opinion is not a ground for denying human rights to an unpopular group. It is no more difficult in Britain than in any other Member State to pass legislation. The UK lost the argument that it is a domestic political issue. Therefore, it is not true to claim that there are valid arguments on both sides. The UK lost and it remains for the UK to fully comply with the Court decision or face appropriate sanctions.

"These concerns are deeply held by the United Kingdom Government, and we have heard the same concerns expressed by other delegations who have spoken already. For this reason, the United Kingdom is going to dedicate its forthcoming chairmanship to delivering on the desire of colleagues around this table for Court reform. We want to see a strong and effective Court that is respected by the people of Europe and around the world. That requires urgent and real reform to how it operates. This must be our shared priority in the coming months".

What is deeply held by the UK Government is prejudice. A strong and effective Court requires Member States to abide by the Convention and Court decisions. What is in need of reform is attitudes within the UK Government. It cannot have it both ways, be part of the United States of Europe and also remain a totally Sovereign state. Kenneth Clarke being the Secretary of State for Justice does not include the ability to decide that judges are wrong in particular cases and to ignore their decisions accordingly. Either he abides by the responsibilities of the job or he resigns.