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Sunday, November 13, 2011

Jailhouselawyer challenges Baroness Deech on democracy

Jailhouselawyer challenges Baroness Deech on democracy

Defending democracy

By Baroness Deech

I have received dozens of emails from members of the public, addressed to all Lords, about their opposition to the Health and Social Care Bill, currently before the Lords. Because the wording of the emails is almost identical, many of them get filtered into my junk mail by action of my computer. One or two I have fished out, and replied by asking what happened when the correspondent wrote to their MP at the time that the Bill was passed by the Commons. It seems, from the very few replies, that they did not write to their MPs, but only to the Lords. Whether this was because they despaired of independent action by their MPs, knowing that the government was committed to a course of action and could force the Bill through by relying on its parliamentary majority, or whether it was because the campaign against the Bill started too late, I do not know. But there is clearly a perception amongst some of the email writers that the Lords will be more responsive to public concern than the Commons was.

It was therefore rather amusing to read in one email the veiled threat: “remember that the public are watching the Lords very closely on this issue, especially with respect to proposed reforms of the unelected second chamber.” In other words, although the correspondent felt let down by the (elected) Commons in relation to the Health Bill, he was relying on the (unelected) Lords to get it right – or else he would be campaigning for the upper House to be elected as well! Does he seriously think that the concerns of the public would be more influential if both Houses were elected and therefore equally in the grip of the government of the day? It would actually amount to a double “elective dictatorship” (Lord Hailsham’s phrase), whereby the executive can get its way very simply because of its majority and the whips system.

I was therefore rather worried to read in the Times that Lord Pannick QC (my former pupil!) believes that the Parliament Acts can be used to force through the Lords a Bill to abolish or replace that chamber, even if the Lords reject the Commons proposals. Under the Parliament Acts 1911 and 1949, the Lords can only delay, not prevent, Bills that the Commons is repeatedly determined to pass. With all due respect, as we lawyers say, I beg to differ from Lord Pannick. There are some exceptions in the Parliament Acts to the Commons’ ability to pass Bills on their own.

Section 2 of the 1911 Act says that any provision to extend the maximum duration of Parliament beyond 5 years must be passed by both Houses and cannot be law if passed by the Commons alone. This exception was inserted because it might be tempting for a single elected chamber to delay elections indefinitely in a time of alleged crisis (as occurred, legitimately enough, in 1940). But the Lords, as currently composed, have nothing to lose by elections and can therefore be counted on to prevent the Commons from postponing a general election inappropriately. An elected House of Lords (or Senate) however would in theory share the same interest as the Commons in postponing an election, at which their seats might be at risk. Therefore the Parliament Acts could not have contemplated application to force the creation of a second elected chamber by a Bill passed by the Commons alone. If this were to occur, the only brake in our unwritten constitution on failure to call a general election would be lost. A largely unelected upper House is in effect a guarantor of government accountability through regular general elections, as long as we have no written constitution. The Jackson case about the Hunting Act discussed but did not determine this issue. There will be protracted litigation about this if the Commons does try to abolish the Lords unilaterally.

So having an unelected House of Lords is not only a mechanism for people to try and get their views across, even if they have been ignored by the Commons, it is also a bulwark of democracy through elections.


Defending the indefensible, in my view, would be a more appropriate title.

The 3 objectives of the Council of Europe are Human Rights, Democracy and Rule of Law.

Democracy in the UK would be a fine thing. That is, if we had universal suffrage. I refer to the large group in society, 75,000+ convicted prisoners denied the franchise in spite of the European Court of Human Rights judgment in Hirst v UK (No2). Parliament has failed to remedy this human rights violation and failed to prevent future human rights violations. There are now 3,500 convicted prisoners cases lodged before the ECtHR as a result of these failures. Therefore, Parliament is guilty.

The problem appears to be that the UK sees the case as a challenge/threat to the principle of the sovereignty of Parliament. The Right Honourable the Earl Jowitt, Lord High Chancellor of Great Britain, stated: "Obviously the Government must continue to disclaim the jurisdiction of the proposed European Court of Human Rights, since this would seriously compromise the sovereignty of Parliament"(Meeting of the Cabinet held at 10 Downing Street, S.W. 1, on Thursday, 18th January, 1951, at 11 a.m., Council of Europe. Convention on Human Rights. (Previous Reference: CM . (50) 68th Conclusions, Minute 2 (4).) CAB 128/19/0/0004 p.30-31.). Recently, Kenneth Clarke and Dominic grieve have expressed the same view. The UK has not progressed in mentality in 60 years!

In effect, the ECtHR is a constitutional court for Europe. The Interlaken process requires Member States to have a written constitutioon. Moreover, that the Convention become part of national law. This would require that the HRA 1998 be amended. As the House of lords forms a part of Parliament, just 1 of the 3 arms of the State found guilty in Hirst No2, it has shown itself to be no guarantor of democracy.

Importantly, the Interlaken process requires human rights to be higher law throughout the 47 Member States of the Council of Europe. This makes redundant the principle of the sovereignty of Parliament. It paves the way for a written constitution guaranteeing human rights. European law does not recognise the principle of the sovereignty of Parliament, rather it recognises the principle of the sovereignty of the people.

Baroness Scotland in February 2010 reaffirmed the UK's obligations to abide by the Convention and Court decisions. She signed the Interlaken Declaration. This is legally binding in international and European law. She agreed to sanctions being imposed upon rogue or pariah States which ignore human rights, democracy and rule of law. The UK is in danger of so being declared following its ignoring the Court's judgment in Hirst No2. The sanction being muted is suspension or expulsion from the Council of Europe and European Union. This is a result of the Lisbon Treaty and Protocol 14 being ratified.

It beggars belief that Lord MacNally upon appointment by the Coalition was not aware of the Interlaken process. There appears to be Europe kicking sand in our face, whilst Dominic Raab tries to draw a line in the sand, and Clarke and Grieve stick their heads in the sand. The Interlaken process does involve reform of the ECtHR, but it also demands reform within Member States.

Either the UK must toe the line in Europe or withdraw from both the Council of Europe and European Union. I think it would be a sad day for our subjects if the UK decides to withdraw.

"There are supposed to be 'no votes in prisons' and no political prizes for doing something about them. Any politician brave enough either to tell the truth about them or grasp the nettle and try to change the way they are run is likely, so it is believed, to run into difficulties with public opinion" (Vivien Stern, Bricks of Shame - Britain's Prisons, Pelican 1989, p.133).

It was Baroness Stern's words which led me to embark upon my campaign which became a revolution in democracy.

The Commons and Lords appear to have conspired to prevent me getting my views across. Isn't it time that this block to voting was removed to allow it to aid democracy in our failing State?

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