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Monday, January 23, 2012

Human Rights, Democracy and Rule of law or dictatorship?

Human Rights, Democracy and Rule of law or dictatorship?

It went under the legal/political radar. On 20 December 2011 the Joint Committee on Human Rights (JCHR) heard oral evidence from the Rt Hon Kenneth Clarke MP on the Government's human rights policy and human rights judgments. Human rights are not just for Christmas!

I raised my eyebrows when Dr Hywel Francis MP (Chairman) said “It is a year since we had the privilege of having you before us”. Privilege to hear a human rights abuser waffle? This should not be so cosy if transparency is to mean anything. Kenneth Clarke should have been in the hot seat.

Q2 The Chairman: “There have been a number of outspoken criticisms of the European Court of Human Rights by Government Ministers and calls by the Home Secretary and the Prime Minister for the Human Rights Act to be repealed. Does the Government remain committed to the European Convention on Human Rights and the Human Rights Act?”.

Rt Hon Kenneth Clarke MP: “The Government’s policy, which I have always adhered to myself, is that we remain fully committed to the European Convention on Human Rights. We think it is a very important international obligation for all 47 member states to commit themselves to. We are awaiting the advice of a commission on the best way of implementing our obligations under the Convention in this country. We have the Human Rights Act on the statute book and we have asked a commission to advise us on the possibility of replacing that with a Bill of Rights. We have one member of the commission on your Committee, Lord Lester. We await the results of that commission, but meanwhile, the Government’s highest priority during our chairmanship of the Council of Europe is to seek to achieve reform of the European Court of Human Rights. We have no intention of interfering with the right of individual application to the court. We have no intention whatever of weakening the court. Indeed, we believe that we would strengthen it by bringing to a head the long-expected demands for reform, which many people in Strasbourg agree is desirable. We wish to see it operating properly as an international court, dealing with those matters that require an international judgment to make sure that all 47 member states comply with their obligations. The last time that it was most authoritatively set out on behalf of the Government was by the Foreign Secretary when he made his first speech upon taking up the chairmanship of the European Council. He spoke for the Government as a whole. I am sometimes accused of being slightly off message. I am not one of those who always rigidly adheres to what I should do by reading out the line to take, but on this occasion I have always stuck impeccably to the policy of the Government and I see not the slightest prospect of this Government having any other policy in the foreseeable future”.

If the Government's policy is to remain fully committed, then why is it that the Government has not abided by the Convention and Court judgments? The UK is in breach of its international obligations. Given that the Convention is 60 years old, why is it necessary this late down the line for a commission to advise the UK on the best way of implementing our obligations? I would have thought this was obvious, honour the objectives of the Council of Europe; Human Rights, Democracy, and Rule of law, and abide by the Convention and Court decisions. Given that the ECtHR is already undergoing reform, and has been for the last 10 years, it beggars belief that the UK states it is making this its highest priority during its chairmanship of the Committee of Ministers. Surely, in line with the Interlaken Declaration, the UK should prioritise the reforms much needed in the UK to guarantee the human rights under the Convention and abide by the Court decisions? By ignoring the Court decision in Hirst v UK (No2) for over 6 years, it can be argued that the UK has interfered with my right of individual application to the Court. Furthermore, by ignoring the judgment it weakens the Court by challenging its authority. It is all very well the UK saying it desires to see the Court making sure all 47 Member States comply with their obligations when the UK is ignoring that the onus is upon itself to honour its obligations. The UK cannot be allowed to get away with saying one thing and doing the complete opposite. This amounts to rank hypocrisy.

During a reply to Lord Lester of Herne Hill, Kenneth Clarke stated: “There is at least one case pending where eventually we might be required to take some action to comply with a judgment”. It is, of course, a reference to Hirst v UK (No2). After 6 years of procrastination why is the Minister still talking about “eventually” and “might”, when the Convention clearly requires an action plan for compliance within 6 months of a judgment? The Council of Europe must accept a measure of guilt because it has allowed the UK to dither for over 6 years! The Committee of Ministers has failed me because it has not supervised execution of the judgment. As a result 1 human rights violation has now become over 100,000 human rights violations as convicted prisoners were denied the vote in elections. To add insult to injury, the Council of Europe has neglected to provide a grievance procedure to allow the 800,000,000 citizens in Europe to raise a complaint and have it investigated. Following the Strangeways Prison riot in April 1990, Lord Woolf concluded in his report that there was a lack of justice in prisons because of the absence of a grievance procedure. By the same token, there is a lack of justice in the Council of Europe.

Q28 Mr Raab: “Whatever the outcome of Scoppola v Italy, it is clear that any replacement of the current prohibition on prisoner voting is more likely to withstand judicial scrutiny, at least in Strasbourg, if there has been full parliamentary debate. That was one of the things required in Hirst. Do the Government plan to introduce legislative proposals, pending the Scoppola judgment, to provide that opportunity to extended parliamentary consideration of the options?”.

Rt Hon Kenneth Clarke MP: “As you say, we are waiting for the judgment in this Italian case. Pending the outcome of that case, the Government are not proposing to take this matter any further. We have debated it in Parliament, and we could have a full parliamentary debate. It is a matter for the business managers to see whether they can get time for more debate on the subject. I would have thought that further parliamentary debate would most sensibly await the outcome of the Italian case, the name of which I cannot remember off the cuff”.

Mr Raab: “Scoppola and Frodl, I think, but Scoppola is the one that we are waiting for”.

Rt Hon Kenneth Clarke MP: “Scoppola, where the Attorney-General has actually been appearing before the court, arguing the British position”.

Mr Raab: “Following on from that, if Scoppola is upheld and the line in Frodl is upheld as well, it would seem that the previously mooted ideas of a one-year or four-year deal, where prisoners serve more than those sentences, would be ruled out under the terms of the judgments in both those cases. What contingency planning have you done for that eventuality, and do you think that you could get a one-year or four-year deal though the House of Commons?”.

Rt Hon Kenneth Clarke MP: “I think we would be very well advised not to start speculating about how we would respond until we have a judgment in Scoppola. Once we get a judgment, we will just have to consider it in a legal and political context. I would be most unwise to go beyond that. At least it will be more considered than on the first case. We had certainly reached the conclusion on the first case that we could not get anything through Parliament because there was such a great deal of feeling on the issue. If this turns out to be the final judgment on the subject, we will take a considered view and come forward with our proposals in due course, I am sure”.

Lord Lester of Herne Hill: “I am sure you know that the Irish and the Cypriots implemented Hirst, even through they were not parties, by immediately giving postal votes to all convicted prisoners in custody. Would you agree that, given the judgments of the Strasbourg court, including Hirst, that court has made it clear that provided that Parliament has properly considered legislation, a very wide range of legislative choices is open with which the court will not interfere unless it is manifestly irrational or arbitrary”.

Rt Hon Kenneth Clarke MP: “That is certainly my understanding of Hirst. That being the case, the next question arises: what will Parliament agree to? How can we do something that is not arbitrary or irrational? We already give votes to prisoners who are on remand in prison, so the organisation of postal votes in prison is not an innovation in Britain. The question of those who have been sentenced is highly controversial. We will address it in the light of whatever is said in Scoppola. There is no European rule. The court has never said that every member state should give the vote to people who are serving more than two years, less than two years or anything like that. Other cases raise troublesome issues about whether you give the vote to everyone who did not get themselves convicted of electoral reform or fraud, but I do not think that that is likely to last as the final outcome of this legislation. If that were to happen, I do not think that Parliament would remotely consider giving the vote to murderers, rapists and so on. In the British Parliament, you would not find a Member of Parliament who would vote for that”.

In Hirst v UK (No2) I had argued that there had been no substantive parliamentary debate before disenfranchising convicted prisoners, which the Court accepted. But, the Court did not rule go back and now debate the issue. All that was required was for the UK to amend the law to remedy the breach and to ensure that the human rights breach did not reoccur. Why is the UK awaiting the judgment in an Italian case when we already have the leading judgment in Hirst v UK (No2)? It is another delaying tactic by the UK and the Council of Europe should hang its head in shame that it has allowed the UK even more unnecessary delay in fully complying with Hirst No2. There is no provision within the Convention to appeal against a final judgment, and yet the Council of Europe has twice allowed the UK to appeal against Hirst No2 in Greens and MT v UK and Scoppola v Italy! Neither my lawyers nor me were allowed to make submissions to the Court. It beggars belief that Kenneth Clarke is speaking about if Scoppola turns out to be the final judgment on the subject, when under Strasbourg case law Hirst No2 is the final judgment! The Council of Europe must be firmer with the UK and threaten to invoke sanctions for non compliance with Hirst No2.

On 3 January 2012 the Parliamentary Assembly of the Council of Europe (PACE) published Doc. 12811 Guaranteeing the authority and effectiveness of the European Convention on Human Rights by Rapporteur: Ms Marie-Louise BEMELMANS-VIDEC. She writes: “The European Court of Human Rights is facing difficulties on several fronts: the backlog of cases continues to grow, threatening to swamp the Court altogether, while certain of its judgments have been subjected to criticism in some states parties...If the right of individual application is to be preserved in essence, and if the Court is to deliver authoritative and high-quality judgments within a reasonable time, the pressing priority must be to improve the situation in those countries where the standards of the European Convention on Human Rights are not being properly implemented”. The UK is responsible for 3,500 of these backlog of cases by not complying with Hirst No2. Whatever the merits of criticisms levelled at the Court, it is a bit rich that the UK is criticising the Court for its judgments finding the UK guilty of human rights violations.

On Wednesday 25 January 2012 David Cameron is to address PACE. According to David Cameron as reported in the Daily Telegraph: “I'm going to Strasbourg next week to make the argument that, as we are chairing the Council of Europe, this is a good time to actually make reforms to the European Court of Human Rights and make sure it acts in a more proportionate way." He is confusing chairmanship of the Committee of Ministers with the Council of Europe. PACE needs to inform David Cameron that he cannot come over here and start dictating and laying down the law. He is responsible for failing to abide by European and international law obligations. It is not for Member States to seek to overturn judgments it does not like, but for Member States to fully comply with those judgments where a Member State has been found guilty of a human rights violation. PACE also needs to get tough with David Cameron and threaten severe sanctions for continued non compliance. Either a Member State abides by the Convention and Court decisions or the Member State will face suspension or expulsion from the Council of Europe. There is no scope for both in and out of Europe at the same time, nor for picking and choosing which human rights and Court decisions to abide by. This is not a time for kid gloves diplomacy, the gloves must come off.

On January 18 2012 Vernon Bogdanor wrote an article in The Times “Only judges, not MPs, will defend human rights”. The article was subheaded “ We should have more faith in the courts than Parliament to protect unpopular minorities”. The author raises a pertinent question 'What happens if the principle of the rule of law and the doctrine of the Supremacy of Parliament are in conflict'? A judge replies that that is a question which ought not to be asked. However, this is the elephant in the room. Human rights and Supremacy of Parliament are not compatible. European law does not recognise the Sovereignty of Parliament, rather it recognises the sovereignty of the people. The 3 objectives of the Council of Europe; Human Rights, Democracy and Rule of law are contrary to the UK's Supremacy of Parliament. One or other must prevail. The Human Rights Act 1998 did not incorporate Articles 1 and 13 of the Convention into domestic law. Therefore, the UK does not guarantee all human rights under the Convention to all its citizens nor is there a provision for an effective remedy by a national authority for their breach. In effect, it is not a human rights statute at all but a statute confirming Supremacy of Parliament. Bogdanor states: “To someone whose rights are infringed, a court can only say that the remedy lies with Parliament or, alternatively, your rights would have been infringed if you had any, but because Parliament is sovereign, you cannot enjoy rights against Parliament”.

There is no room within the Council of Europe for a rogue or pariah State, which is a totalitarian or authoritarian regime. David Cameron has been likened to the dictatorship by the Greek Colonels in the 1960s and to the President of Belarus. There is only one way to deal with a bully and that is to stand up to him. Has the Council of Europe got the courage and integrity to stand up to Cameron? It is simple, on the one scale is the ECtHR decision in Hirst v UK (No2). On the other scale is David Cameron stating that the thought of giving convicted prisoners the vote makes him feel physically ill. In other words, giving human beings their human rights makes the Prime Minister feel ill. The Council of Europe cannot afford to let such a pathetic excuse overrule the a decision of the highest court in Europe. 800,000,000 European citizens rely upon the Court to protect their human rights. If the Council of Europe does not tackle the UK dictatorship firmly, then everything gained over the last 60 years will be lost. Hitler dehumanised those to justify the Final Solution. The UK's policy of dehumanising prisoners cannot go unchallenged. Either human rights apply to everybody without exception or they apply to nobody. PACE must rally against David Cameron and ensure that it puts out media releases to inform Europeans that such conduct cannot be tolerated in Europe. The UK needs to be dragged into the 21st century, it cannot govern itself 60 years behind the rest of Europe. A failing State is a failing State, the systemic failures of the Executive, Parliament and Judiciary have to be addressed. PACE needs to let the UK know that its politicians and media do not tell the public the truth of the situation. Human Rights, Democracy and Rule of law or dictatorship?

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