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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