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Friday, September 09, 2011

Responding to human rights judgments

Responding to human rights judgments

The MoJ title gives the impression that the government is actually doing something when Hirst v UK (No2) is evidence that the government has not responded to the judgment since 2005.

The government recognises whether its a ECtHR judgment or declaration of incompatibility that “A common feature of these judgments is that their implementation usually requires changes to legislation, policy or practice, or a combination thereof”.

The government recognises that “The United Kingdom is obliged to implement judgments of the ECtHR under Article 46 of the ECHR”.

However in relation to Hirst No2 the government has failed to fulfill its obligation.

“Prisoner voting rights
Greens v UK & M.T. v UK:28

Court: ECtHR (Chamber)

Case summary: This pilot case concerned the blanket ban on voting imposed automatically on the applicant due to the applicants’ status as a convicted offender detained in prison. The applicants, both prisoners in Scotland, were refused the right to enrol on the electoral register for domestic elections and elections to the European Parliament.

The ECtHR found the blanket ban under sections 3 and 4 of the Representation of the People Act in violation of Article 3 of Protocol 1 (the right to free and fair elections) and, pursuant to the judgment in Hirst No. 2 v UK, set a deadline of six months from 11 April 2011 for the UK to bring forward legislative proposals to end the current blanket ban on prisoner voting. The Court declined to award compensation to the applicants and stayed all clone cases.

The Court noted that a wide range of policy alternatives were available to the Government and emphasised the broad margin of appreciation that applies in this area. It was for the Government to decide in the first instance how to achieve compliance with Article 3 of Protocol 1 when introducing legislative proposals (§114 of the judgment).

The Government response: The Government has actively been considering the appropriate course of action in order to respond to the judgment in Greens and MT.

In July, the Grand Chamber accepted a referral in the case of Scoppola v Italy (no. 126/05, judgment of the Second Section of 18 January 2011). A hearing before the Grand Chamber has been scheduled for 2 November 2011. The legal issues which arise in Scoppola under Article 3 of Protocol 1 are analogous to those which arose in Hirst and in Greens and MT, and the Second Section referred in its judgment to Hirst, as did the Italian Government in its referral request.

For these reasons the Government has sought leave to intervene in the Scoppola hearing and to defer the time limit specified in Greens and MT, which is due to expire on 11 October 2011. The Government was notified on 31 August that the Court has granted an extension of six months from the date of the Scoppola judgment. The Government welcomes the decision of the Court and believes it is right to consider Scoppola and the wider legal context before setting out next steps on prisoner voting. The Government awaits the Court’s decision in relation to the intervention request”.

The UK appealed against Hirst No2 and lost the appeal. All that remained was for the UK to fully comply with the judgment. In my view, it was an abuse of process for the UK to seek to further appeal against Hirst No2 via Greens and MT v UK. In my view, it is a further abuse of process to seek to do the same via Scoppola. Given the Court’s deadline in Greens, it beggars belief that the Court has overruled itself to be so accomodating to the UK, in effect allowing human rights abuse to continue, by allowing the UK another 6 months grace. The Court needs reminding that justice delayed is justice denied. In my view, the UK is showing nothing but contempt for the Court until such time as the Court reaches a decision which favours the UK. Then of course the UK will fully comply. It is pointless having a Court which fails to protect human rights. It is pointless individuals applying to the Court and winning a human right just for the losing Member State to refuse to amend domestic law thereby denying an effective remedy. Not only is the Court meaningless but also the Convention is meaningless. And the Committee of Ministers in relation to supervision of execution of the Court’s judgments is meaningless. The whole thing is exposed as a sham.

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