Corrupt politicians caught out trying to corrupt top ECtHR judge!

Corrupt politicians caught out trying to corrupt top ECtHR judge!

Sniping at Strasbourg will only hinder reform is the title of an article written by Anthony Lester (Times 6 December 2011, behind a paywall £).

The author begins his argument by stating: "With no written constitution, Britain needs the Human Rights Court to protect its citizens". I agree with this point. Even Rabinder Singh QC (Matrix Chambers), who represented the UK in the Prisoners Votes Case, has written about the need for a written constitution.

Anthony Lester continues by stating: "The Strasbourg court is under constant attack by some sections of the British media and politicians who accuse it of over-reaching its power. But criticisms of the supposed judicial “activism” of the European Court of Human Rights are unfair and politically motivated; they are also dangerous and counter-productive". It is true that the Court is being attacked and for the reasons stated. It is also true to state that the attacks are political in nature, and that they are unfair. The UK signed up to the Council of Europe, and agreed to abide by the Articles under the Convention and abide by the Court's decisions. The UK agreed to the Court's jurisdiction to decide cases, and that the Courts decision is final.

Lord Lester continues his argument: "The most recent flashpoint has been votes for prisoners. The court ruled in a case brought by John Hirst, a former prisoner, that exclusion of all convicted prisoners in custody from the right to vote was in breach of the European Convention on Human Rights". When The Sun advised the government to ignore the ruling, and Tony Blair stated in the House of Commons that convicted prisoners would not get the vote under a Labour government, this combination lit the fuse. It is obvious it would blow up and not blow away.

The author then goes on to say: "The fightback against this ruling began in February, when David Davis introduced a Commons debate. The former Tory Shadow Home Secretary supported by Jack Straw, the former Lord Chancellor, accused the court of overinterpreting the convention to extend its jurisdiction improperly. Whether prisoners should have votes was, they argued, a matter for elected MPs. Last week, Mr Straw and Mr Davis went to Strasbourg to remonstrate with the British judge, Sir Nicolas Bratza, the court’s President". Given the finality of the Court's decision, and the UK's legal obligation to abide by it, is there legitimate scope for a fightback? I contend that there is not and that the so-called fightback is unlawful. I am very concerned that Davis and Straw were allowed a secret hearing by the President of the Court. I intend taking this matter up with the Council of Europe, Committee of Ministers and the Court. I contend that at the very least I am entitled to know what is going on behind the scenes relating to a case I won fair and square in open court.

Anthony Lester furthers his argument: "It is a shame that Mr Straw, who deserves credit as Home Secretary for enshrining the convention into British law through the Human Rights Act, is campaigning to disobey the court’s judgment. It is also bizarre for elected politicians to argue that the right to vote is not a fundamental human right". I agree that Jack Straw should hang his head in shame. That credit requires being reduced because Articles 1 and 13, allowing for guaranteed rights and an effective remedy for their breach by a public authority, were not incorporated into the HRA 1998. Alex Bailin QC (Matrix Chambers) has argued that because of these omissions, in relation to Hirst v UK (No2), the HRA is toothless. It also needs to be bourne in mind that as Foreign Secretary and Justice Secretary Jack Straw failed in his Ministerial Responsibilities to ensure human rights in the UK. No wonder he is engaged in the so-called fightback, he is trying to cover up his unlawful conduct whilst in office. It is more than bizarre for politicians to continue to argue the point the UK lost in my case. It is unlawful conduct.

Lord Lester continues with his argument: "Britain has had a fine and unblemished record in complying with Strasbourg’s judgments and in upholding the European rule of law. But the continuing failure to introduce the legislation to allow votes for prisoners sets a dangerous example to countries with a less pristine record. There are governments elsewhere in Europe that would love to clip the court’s wings and pick and choose which judgments to respect". Others are less than convinced with the UK's record for compliance. At best the UK, when it complies at all, does so to the minimum extent possible. I don't think it helps matters to refer to European rule of law. The Council of Europe's objectives are Human Rights, Democracy and Rule of Law. The UK signed up to these. The Hirst No2 case involves all 3 of these objectives. Rule of law is rule of law whether in Europe or in the UK. Lord Lester is introducing a false distinction. I do not think it helps to claim that our record is pristine when it is nothing of the sorts. True there are countries with worse records, but that is no excuse for the UK to do the right thing and keep its own backyard clean. Just because some other Member States desire to be free from the Court's scrutiny, is no excuse for the UK to also seek to be on the verge of a rogue or pariah State. That the UK is seeking to do this should light warning beacons and send alarm signals to the people of the UK. First they came for the prisoners...

The author goes onto further his argument: "Some of the media attacks on the court are self-interested. The British media have good reason to support the court; as a result of cases brought by The Times and other newspapers we now have an enforceable legal right to freedom of expression. But some elements dislike the way the court has promoted the right to privacy, a very necessary protection against unwarranted media intrusion". It is true that certain elements of the media have a hidden agenda. I believe there should be a free press. I would argue that biased reporting for this hidden agenda is not in keeping with a free press at all but is a controlled presss. Whatever the rights and wrongs of this issue, it should keep out of the issue of convicted prisoners human right to the vote.

Anthony Lester continues: "It is also untrue to claim that the court has overreached itself or become “activist” in a political sense. It has repeatedly stressed that national authorities are better placed than an international court to judge local needs and conditions, and that these national courts and parliaments have a wide margin of discretion in enforcing convention rights at home". As the UK agreed to the Court's jurisdiction and to abide by its decisions, the Court cannot overreach itself. The UK signed up to the idea that there would closer harmony between Member States, that is united and not waving the national flag in defiance. The Court is merely ensuring that this ideal, which the Council of Europe, Parliamentary Assembly of the Council of Europe and Committee of Ministers have agreed should come about happens. Sadly, the UK is 60 years behind Europe and needs dragging away from the Dark Ages. What Anthony Lester fails to mention is that the national authorities are required to act in relation to human rights and not abdicate responsibility. For example, the courts should not defer to suprermacy of Parliament like happened with the Prisoners Votes Case.

Lord Lester continues to bang his drum: "In the Hirst case, for example, the court recognised that the right to vote is not absolute and that Parliament enjoyed wide discretion in organising electoral systems. It noted that while there is no place for automatic disenfranchisement “based purely on what might offend public opinion”, restrictions on who can vote may well be justified to prevent crime. What the court found wrong was the UK’s “general, automatic and indiscriminate restriction” on prisoners". By not absolute it means the vote can be restricted by age, nationality, etc, and for offences such as electoral fraud. It does not mean that the UK can decide who is human and who is subhuman and not entitled to human rights, therefore the restriction does not mean the fact that someone is in prison justifies disenfranchisement. Democracy expects only in limited exceptions can the human right to vote be removed. The disenfranchisement on crime prevention grounds would be very difficult to justify. For example, if A Terrorist was caught going to a Polling Station with the intent of blowing up voters and the Polling Station this could be justified. Any restriction simply based upon less than 4 years or under 12 months would be arbitrary and a breach of Hirst No2 and Article 3 of the First Protocol.

The author furthers his argument: "Ireland and Cyprus, though not directly bound by the Hirst judgment, promptly gave prisoners postal votes. But successive British governments have failed for seven years to give Parliament a chance to consider legislation on this issue. The court is likely to decide early next year that legislation must at last be introduced, provoking, no doubt, more furore". Anthony Lester fails to mention that all 47 Member States agreed at the Interlaken Conference, that where the same points arise in cases against other Members States which affect those Member States not a party they should still be bound by the Court decision. For example, in the Republic of Ireland prisoners were not prevented by voting by law but because the State had not provided the facility to allow them to exercise the vote. It is worth noting that the Republic of Ireland recognised that this was an element of my case and it was stated that it was intended to amend the law to fully comply with the judgment. The right includes requiring the State to be proactive as opposed to merely failing to act. It was obvious from the ouset that s.3 of ROPA 1983 must be amended to comply with Hirst No2.

Anthony Lester continues: "Meanwhile, the sniping undermines the Government’s efforts to muster support for reform of the court. The Commission on a Bill of Rights for the UK, of which I am a member, has advised the Government on what it sees as urgent practical reforms. They include improving how judges are selected and elected, ways of urgently tackling the crushing backlog of some 165,000 pending cases so that the court is able to focus on the important issues, and changes to the court’s remedies so that financial awards become exceptional". What Anthony Lester fails to point out is that the Interlaken process contains three elements; reform of the Court, and reform within Member States, and sanctions against Member States for non-compliance. Because the UK has failed to implement Hirst No2, the UK has added 3,500 more prisoners votes cases to that backlog! If the Court had awarded me damages it is arguable that the UK would have complied rather than face huge compensation payouts.

Lord Lester concludes: "Despite the need for reform, the Strasbourg court deserves defending. Before the Human Rights Act, there were insufficient legal remedies in Britain — a country without a written constitution — for breaches of our basic rights. Were Parliament to scrap or emasculate the Human Rights Act or withdraw from the convention, British citizens would once again lack effective protection by our courts against the tyranny of majorities and the abuse of state power". It is clear from the Interlaken process that the Court has been undergoing reform for 10 years. Of course a court which defends human rights deserves defending. The Court puts human rights of citizens of Member States above such outdated notions as sovereignty of Parliament. The HRA could form part of a written constitution guaranteeing human rights, it would only be effective if breaches were remedied by the courts; including the jurisdiction to strike down offending primary legislation. For the UK to threaten to not allow all citizens to have human rights if the Court upholds human rights of prisoners is an abuse of State power. It is the illogic of a dictatorship. The people should be saying not in our name.