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Wednesday, September 21, 2011

Prisoner votes and the democratic deficit: A response

Prisoner votes and the democratic deficit: A response

Adam Wagner on UK Human Rights blog writes Prisoner votes and the democratic deficit


There is a democratic deficit in this country. That is, convicted prisoners being denied the vote. As Lord Woolf has said, “There is a lack of justice in prisons”. Given that prisons are part of the criminal justice system, this state of affairs in 2011 beggars belief. Kenneth Clarke is the Secretary of State for Justice and Lord Chancellor. Legally, the buck stops with him. Notwithstanding that the Coalition agreement sought to pass the buck to Nick Clegg, the LibDems, and the Cabinet Office. It would appear that Kenneth Clarke is exercising power without responsibility. This practice began under Charles Falconer and continued under Jack Straw.

Adam has used the word implementation when it’s non implementation that is the issue. The UK has deliberately ignored fully complying with the Hirst v UK (No2) judgment. On the day following the judgment The Sun comment suggested that it should be ignored. By following The Sun’s advice instead of the ECtHR decision the UK is now in deep trouble. In 2006 the Republic of Ireland changed their law to allow all convicted prisoners to vote. In their Parliament it was stated that by so doing they were fully complying with the judgment. All it requires is a change of the law.

This requires a change in the will of Parliament from inaction to action.

Corruption cannot be tolerated whether it is by MPs and Lords, the Executive, Parliament and Judiciary. It even extends to the Council of Europe, Committee of Ministers and ECtHR.

Hirst is first, Frodl second, Greens third, and coming in last is Scoppola. Adam refers to the correspondence in relation to the latter. Hirst is the leading case. Frodl refers to the Hirst test. The UK sought to abuse due process by appealing against Hirst in an appeal against Greens. The Grand Chamber was right to reject this approach and gave the UK 6 months to bring forward proposals to amend the law. Now the UK is again seeking to appeal against Hirst in Scoppola. What appears to be getting forgotten is that the UK is under an obliation to abide by the Convention and abide by the Court’s decisions and this includes Hirst. The correspondence does not release the UK from its obligation to fully comply with Hirst. If this was the case, the Registrar would be higher in authority than the Grand Chamber.

The FCO represented the UK in Hirst and lost. The Grand Chamber rejected an appeal in Frodl, therefore the Hirst test is the leading authority. It is totally irrelevant that the FCO states that the government believes Frodl is inconsistent with the Hirst test. The Grand Chamber has already ruled that the Hirst test stands. It remains for the UK to fully comply with the judgment in Hirst.

Justice delayed is justice denied. It beggars belief that “the Chamber cannot contemplate any further unnecessary delay”, and then some jumped up clerk decides to give the UK another 6 months of unnecessary delay with fully complying with Greens. The problem is that according to the rules decisions of the Court are required to be fully complied with within 6 months! Hirst has been ignored now for over 6 years! This whole period has been unnecessary, and cannot be legally, politically and morally justified.

Justice is denied when on the one scale is the ECtHR decision in Hirst and on the other scale is David Cameron saying the thought of prisoners votes makes him physically ill, and Parliament puts its grubby finger down on Cameron’s side. Expenses fiddlers lack integrity.

The UK is conveniently forgetting that it is the Council of Europe’s and not the UK’s interpretation of Hirst which is final. Ever since Charles Falconer told the World at One what his interpretation of the judgment was the UK has followed this instead of following the CofE’s interpretation. Frodl merely reiterated the Hirst test. My understanding of the judgment in my case is in accord with that of the CofE. That is, the vast majority of convicted prisoners should get the vote. This is in accord with Article 1 and Article 3 of the First Protocol of the Convention.

It would also appear that the UK misunderstands the subsidiarity principle. Joshua Rozenberg was being economical with the truth in his article. That is not to say that he was lying, just that it was short of the truth, the whole truth and nothing but the truth.

Kenneth Clarke is cherrypicking from the Interlaken process. His tunnel vision sees only reform of the ECtHR. He is conveniently blind to the reform required by Member States, and the sanctions which can be imposed upon rogue or pariah States. Such a State would be one which failed to ensure human rights, democracy and rule of law. These objectives found the base upon which the Hirst test rests. In case you are in any doubt, that is the high moral ground.

It is not up to Adam to set the pace of the Council of Europe’s agenda. The Forfeiture Act 1870 through the CofE’s history to Hirst in 2005 is hardly too much too fast. Frodl clarified the Hirst test. If Frodl is weakened it would weaken Hirst and if the Court did this it would lose its hard fought for and won legitimacy. It is not for a Member State which has been found guilty of human rights violation to dictate that the Court changes its decision. The responsibility, as Kenneth Clarke has admitted rests with the Member State to abide by the Convention and Court decisions. It is not a question of the Court falling out with Italy and the UK, The rules are clear, toe the line or leave the Council of Europe and European Union.

This problem, contrary to what Adam states, is not of the Court’s own making. It is my creation and I claim full credit for it. I did not study law just to put a piece of paper on the wall and make money from my studies. Rather I saw the law from the sharp end and turned the weapon around to give Parliament a taste of its own medicine. It might be called Community Payback. Or revenge is a dish best served cold. In any event, I am glad that my studies meant that I could beat the system. Eton/Harrow and Oxbridge v The University of Crime. The law is there both to punish and protect. Convicted prisoners have been punished by the court sentence, now the law has the duty to protect the most vulnerable group in society.

1 comment:

Tim said...

Didn't Hitler win an election? He could have argued that his subsequent actions were fulfilling the 'will of the people.' I thought that part of the reason we have the ECtHR is to prevent majorities from bullying minorities.

If I am wrong I do wish somebody could point out where was my mistake?