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Sunday, May 01, 2011

Kenneth Clarke admits the UK is a failing State

Kenneth Clarke admits the UK is a failing State

"The substantive articles contained in the HRA are exactly the same as in the ECHR. However two of the Articles are not included, Article 1 and Article 13. Under Article 1 of the ECHR rights and freedoms included in the Convention shall be secured to all people within the jurisdiction. Article 13 is the Right to an Effective Remedy. The Government felt it was not necessary to incorporate these Articles as the HRA means that convention rights are secured though domestic courts available to all and this in itself provides the effective remedy".

The Government may well have thought it was not necessary to incorporate the following Articles into the HRA 1998, I contend that it is necessary to amend the Act to include the omissions.

"Article 1 – Obligation to respect human rights

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.

Article 13 – Right to an effective remedy

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity

What is wrong with the Government view is that it appears to be an attempt to get out of oblgations made under international law by way of domestic legislation. And, access to the courts is not necessarily the same as getting an effective remedy. It cannot be assumed that judges will necessarily reach a fair verdict. Especially by way of judicial review in cases of the Individual v the State. Prison case law is littered with cases where High Court judges have decided to prop up the State.

This calls into question the doctrines of the Separation of Powers and Supremacy of Parliament.

A solution to this problem may well be found in the European law principle of subsidiarity.

Particularly as Kenneth Clarke had this to say in his speech at the Izir Conference (26 – 27 April 2011):

"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".

I cannot accept that being British is an excuse for ignoring to fully comply with a ECtHR judgment. For example, in 2006 the Republic of Ireland in response to Hirst v UK (No2) passed legislation to allow all prisoners to have postal votes. In addition Labour under Tony Blair's leadership brought in the HRA, and then made a statement in the Commons that prisoners would not get the vote under a Labour Government. This is proof that it is not difficult to persuade Parliament to legislate when it wants to.Blair's 'frenzied law making' : a new offence for every day spent in office.

So, the issue is not that it is difficult rather it is the lack of will to change the law which is the real problem. The question whether convicted prisoners should be allowed the vote was answered in the affirmative by the ECtHR. Because the UK allows individual petition to the ECtHR, the UK is surrendering sovereignty on the issue of determining human rights to the ECtHR. Therefore this approach is outdated: "This is regarded by our Parliament as a domestic political issue, on which there are valid arguments on both sides". The issue of human rights is an international legal and political issue. The UK is trying to forget that it is in the dock in this Individual v the State case. And that the UK submitted its arguments to the Court and lost the case, therefore any arguments submitted at the time have lost any validity. Only the winning side's arguments remain valid. This is what Parliament has difficulty with, that an individual could beat the State in a fair legal fight.

What Kenneth Clarke appears to fail to appreciate is that he is admitting that the UK is failing to deliver on its promise to deliver human rights to all its citizens. That there is a systemic failure. That there is an underlying structural fault. The UK is a failing nation State. If the UK is saying it cannot cope then it is inviting Strasbourg to provide the solution. So, instead of doing things a British way then it will have to be done a European way. Either the UK adopts the subsidiarity principle willingly or forcibly, or the UK will be forced to leave the Council of Europe and EU.

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