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Tuesday, April 17, 2012

Civil society needs to say 'human rights abuse not in our name!'.

Civil society needs to say 'human rights abuse not in our name!'.

I've got an opinion, and this is my piece.

Prisoners are part of civil society. “According to Lord Wilberforce, a prisoner 'retains all civil rights which are not taken away expressly or by implication' (Raymond v Honey (1982)). Shaw LJ, states similarly in St Germain (No.1)(1979); 'Now the rights of the citizen, however circumscribed by a penal sentence or otherwise, must always be the concern of the courts unless their jurisdiction is clearly excluded by some statutory provision'” (PRT, 1988). And in Alexander v Home Office it was held that prisoners are a section of the public. When I referred these cases to a prison Governor in 1990, he replied “What are these rights, and where are they set down?”. A good question. As I was studying law at the time I thought I would look into this.

Strangeways Prison riot erupted and lasted for 23 days. When the prison authorities regained control of the prison, TV News showed the prison Governor raising the Prison Service flag. He said that all of the prisoners had now been returned to legal custody. I shouted at the TV that as none of the rioters had escaped they had not left legal custody in the first place! The Government responded by announcing an inquiry into the events and causes of the disturbances in various prisons. The Woolf Report concluded that there was a lack of justice in prisons. One of the factors being the absence of a grievance procedure.

A solicitor from the Humberside Law Centre gave me a copy of the European Convention on Human Rights (ECHR). When I quoted it to lawyers I got frustrated when they said it was not binding in English law, and the courts only had to take it and the European Court of Human Rights (ECtHR) decisions into account. Then Labour came into power and the Human Rights Act 1998, which incorporated most of the ECHR into domestic law. Alex Bailin QC, (Matrix Chambers) has said, if Hirst v UK (No2) is the yardstick then the HRA is toothless. The ECtHR has no enforcement powers and simply passes judgments to the Committee of Ministers to supervise execution of the judgments. There are 5 cases against the UK which the UK has not complied with in over 5 years! Today the Independent reports that the UK:

“is being urged to confront Russia over its human rights record today when it chairs a high-level conference on the future of the European Court of Human Rights (ECHR).

Campaigners want the Government to persuade Europe’s leaders to invoke new “exceptional” measures against Russia for failing to comply with almost 200 critical rulings from the ECtHR”.

It has been claimed that there are 8,000 cases before the Committee of Ministers awaiting to be implemented by Member States of the Council of Europe. And that's the problem, 47 representatives of Member States, many of them are human rights violators, the guilty not wanting to point the finger at others in case it gets pointed back at them. This is a totally unsatisfactory state of affairs. So is the fact that there is no grievance procedure within the Council of Europe for any of the 800,000,000 citizens of Europe to air any grievance. There is a lack of justice in the system. The UK states that the remedy lies in Strasbourg, and the latter states that it is the Member States responsibility to abide by the ECHR and abide by the ECtHR decisions. This is political ping-pong! Human rights are too valuable to be entrusted to those too powerless to act, and those who fail to act such as the Committee of Ministers and failing States like the UK where the responsible Ministers act irresponsibly. The power vacuum should be filled by civil society. They are our human rights and we have a duty to protect them.

The Interlaken process was designed to sanction rogue or pariah States to get them to toe the line. It was adopted by the Council of Europe. The focus has been upon reform of the ECtHR and reforms needed in some Member States. The UK is focusing upon the former and largely ignoring the need to reform a failing State with structural problems and systemic failures. There is a need for reform starting with amendments to the Treaty of London 1949 (Statute of the Council of Europe), within the Council of Europe itself including the Committee of Ministers and Parliamentary Assembly of the Council of Europe (PACE) and the ECHR and ECtHR.

The HRA is not ECHR compliant. By not bringing the rights home in Articles 1 and 13 of the ECHR, we have the situation whereby Parliament has the discretion to treat some people as subhuman and therefore not entitled to the minimum human rights listed in the ECHR, and they have no remedy before a national authority for their breach. The Act needs to be amended (alternatively a written constitution enacted) to state expressly that human rights are higher law. Obviously this lays to rest the doctrine of the Supremacy of Parliament. When there is a lack of parliamentary will for penal reforms, for example, sovereignty of the people should ensure that they do work for us rather than fill their own pockets and serve self interests. Giving prisoners the vote would provide an effective oversight of MPs and provide a check upon the criminal justice system. A reading of Hirst v UK (No2) shows that not only did Parliament abdicate responsibility but also the judges in the courts on the issue of prisoners votes. What example does this hypocrisy show to prisoners who are expected to take responsibility for their actions? What right does Parliament have to assume that prisoners are less eligible for human rights than other human beings? The ECtHR rejected the UK argument that prisoners had lost the moral authority to vote. Moral authority has never been a criterion for the franchise in this country. Upon what moral authority did MPs and Lords fiddle their expenses? In the Prisoners Votes Case the prisoners have the moral high ground, and the attacks upon the judgment come from the low moral ground. On this issue the prisoners are the law abiding and the public authorities are the law breakers.

Given that the Council of Europe does not have a monopoly upon wisdom, what about the inclusion of those wise men and women in civil society?

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