Jailhouselawyer to take on Attorney General Dominic Grieve at the ECtHR

Jailhouselawyer to take on Attorney General Dominic Grieve at the ECtHR

It’s a case of the universality of human rights on the one scale and UK sovereignty on the other

It is morally right that we should have human rights. Taking this moral foundation convicted prisoners have the high moral ground and the UK the low, and the Court’s interpretation of the Convention’s human right to vote conforms to this higher standard. In my case, Hirst v UK (No2), the UK had argued that by committing offences which led to custodial sentences convicted prisoners had lost the moral authority to vote. The Court rejected this argument. When the expenses scandal broke Lord Carey, the former Archbishop of Canterbury, opined that Parliament had lost the moral authority to govern. Moral authority is not a criterion for the franchise. There is no moral authority to fiddle expenses.

Protocol 11 of the Convention came into force 1 November 1998. “Article 36 - Third-party intervention: 2. The President of the Court may, in the interest of the proper administration of justice, invite any High Contracting Party which is not a party to the proceedings or any person concerned who is not the applicant to submit written comments or take part in hearings”. This is the rule Dominic Grieve invoked, and it is the same access to the Court which I applied. Equality of arms. I am a human rights defender, whereas the UK is a human rights abuser. I am defending the high moral ground and a legal victory, the UK just because it did not expect to lose behaved, and is still behaving, unreasonably by ignoring the Court’s judgment. "The only one whose expectations might be defeated by an unpredicted finding of a violation is a government that does not equally respect the freedom of its citizens”. The UK lost its appeal in my case and that decision is final. So, why is the UK joining Scoppola v Italy?

Why did the Grand Chamber not reject the Attorney General’s request given that it is arguable that it is not in the interests of the proper administration of justice to let him make representations? Ever since Magna Carta it has been accepted that no man should be denied justice; and this includes the principle that justice delayed is justice denied. For over 6 years I have been denied justice by the UK failing to implement the decision, and by the Committee of Ministers of the Council of Europe failure to effectively supervise execution of the judgment. Perhaps, even failed by the Court itself?

David Lidington, the Minister for Europe, stated in the Commons: “The Court is an essential part of the system for protecting human rights across Europe. But it is struggling with its huge, growing backlog of applications—now over 155,000. At times it has been too ready to substitute its own judgment for that of national courts and Parliaments. This situation undermines the Court’s authority and effectiveness. Concrete measures to improve the Court’s efficiency are urgently required.” He failed to mention that 3,500 of this backlog have been caused by the UK’s failure to implement Hirst No2, and now other convicted prisoners too have demanded justice. What he fails to mention is that both the national courts and Parliament abdicated responsibility on the issue, therefore the Court had jurisdiction to hear my case once I had exhausted all domestic remedies. I had argued that the courts and Parliament was wrong on the issue of convicted prisoners’ human right to the vote. It is the UK that is seeking to undermine the Court’s authority and thereby its effectiveness. In my view, a concrete measures should include direct effect of its judgments into domestic law, and daily fines for non-compliance, and just satisfaction which placed a monetary value upon the loss of the vote. The UK in my case stated that it thought £1,000 would be the appropriate amount.

The Council of Europe uses the European law subsidiarity principle. Kenneth Clarke and Dominic Grieve have both stated that they support this. According to this principle it is primarily the national authorities’ responsibility to ensure that the Convention and Court decisions are implemented by the State to provide an individual remedy for the breach and prevent further breaches. If it is a failing State, like the UK, then the Court, Council of Europe Committee of Ministers (and even the EU) can step in to remedy the breach. The Court also allows Member States a margin of appreciation. For example, whether to place polling booths in prisons or provide for postal votes. Depending on individual cases the Court might state that there is a narrow or wide margin of appreciation. It is not so wide as to allow the UK to decide who is and who is not a human being entitled to human rights, this would be contrary to Article 1; nor so wide as to defeat the purpose of Article 3 of the First Protocol providing for free elections.

"In reading the Court’s judgments, one often forms the impression that the doctrine of the margin of appreciation is a device used to defer to the judgment of national authorities, particularly when the legal issue before the Court is politically sensitive and there is likely to be significant political opposition by the respondent state to the Court declaring a violation".

The UK has opposed the Court’s judgment. This defiance of human rights, democracy and rule of law is not justified in a so-called liberal democracy. The UK entered into a contract with other Member States to honour its legal and moral obligations. The UK should do the right thing. Domestic law is there to both punish transgressors and protect the weak from abuse by the powerful State. No amount of arguing is going to turn this wrong around to a right to deprive prisoners of the residual liberty to vote. All those who support the legal principle of the liberty of the subject should not support this denial of freedom for prisoners to have a voice in Parliament. When it comes to necessary reforms sometimes Parliament is weak willed. Corruption needs to be rooted out. Jimmy Savile has been credited with inventing the music style hip hop. In this case, what we need is Honesty In Politics: Honesty of Politicians. Lead by good and not bad example. If it is accepted that human rights are fundamental in the rest of Europe, it follows that they are no less important in the UK. As Bob Marley sings “Get up, stand up, stand up for your rights”.