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Tuesday, May 15, 2012

Response to Adam Wagner

Response to Adam Wagner

Once more into the breach (of human rights). Let's face it, it's hardly news the Grand Chamber of the ECtHR to rule on prisoners votes. It was news 6.5 years ago in the case of Hirst v UK (No2). Given that the GC has already decided the issue, why did the ECtHR decide to hear it again in Scoppola v Italy (No3)? Given that the UK lost its appeal in Hirst, why did the ECtHR exercise its discretion in favour of allowing the UK to join Scoppola as an interested party? Surely it constitutes an abuse of process if the UK's tactic was simply to buy more time?

In my view, Adam Wagner has erred when he claims that the UK was granted more time to comply with Hirst. The UK was granted more time to comply with Greens and MT v UK, although I have been unable to discover the lawful authority for this, until 6 months after Scoppola is decided.

In my view, Adam Wagner has erred again when he claims that the ECtHR has delivered a number of conflicting judgments on the issue of prisoners votes. Recently Ch4 criticised so-called expert witnesses in child care cases. There is no evidence to support the UK's claims that the ECtHR has moved the goalposts. Frodl, Greens and Scoppola all followed the Hirst test. It never ceases to amaze me the amount of people who have failed to understand the Hirst judgment. Having said that I am not surprised when it comes to government lawyers or even ex-government lawyers. Like the Prison Service they tend to be too inward looking.

I will eat Adam Wagner's wig if the ECtHR changes the final decision in Frodl by way of Scoppola. Bear in mind that the Grand Chamber has already refused an appeal in Frodl, and the Court simply followed the lead set in Hirst. Apparently, Adam Wagner's reasoning follows that of the UK's, that is, that Member States be allowed a wide margin of appreciation. However, he misses the point that Member States are granted a wide margin of appreciation but not so wide as to abuse human rights by not being Convention compliant.

The UK lost Hirst No2, and there is no legal way under European or international law for this victory to be taken away from me. No amount of spin will turn it into a government victory. The only losers will be the Council of Europe, Committee of Ministers and ECtHR if the Court bends over backwards in Scoppola to appease the human rights abusing UK. It will set a precedent for other human rights abusing Member States to follow. I have yet been unable to discover any GC judgment overturned by the GC. I doubt that the ECtHR will risk bringing down the House of Cards.

I am less impressed than Adam Wagner appears to be at the drum being beat by the UK. I am more inclined to lead than to follow. I dismiss rhetoric for what it is. It was a non starter when the UK sought to curb the jurisdiction of the ECtHR. I recall reading English law in theory and learned by experience that it may be different in practice. A so-called theory based upon only some human beings being entitled to human rights under the Convention is not a theory at all. It doesn't stand up to critical scrutiny.

What this whole case exposes is the need for reform of the Council of Europe. I suspect that the future will see the European Union and Court of Justice of the European Union taking an interest in human rights. If I am right then enforcement steps up a few gears and sanctions police decisions. It used to be the case that the Home Office was trusted to care for prisoners, however, case law showed that the Home Office could not be trusted in this respect. Therefore, the courts stepped in. If the Council of Europe shows that it is not effective in protecting human rights then it provides a vacuum which the EU will fill. In a nutshell, either the UK fully complies with Hirst No2 or leaves the Council of Europe and EU.

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