OPINION OF LORD TYRE
in the cause
GEORGE McGEOGH
Petitioner
for
Judicial Review of the compatibility with the petitioner's EU law rights of the decision of the Electoral Registration Officer to refuse the petitioner's application to be included on the Register of Local Government Electors
___________
Petitioner: A. O'Neill QC; Balfour & Manson, Solicitors
First Respondent (Electoral Registration Officer, Dumfries & Galloway): Lindsay; Anderson Strathern
Second Respondent (Advocate General for Scotland, on behalf of the Lord President of the Council): Webster; Office of the Solicitor to the Advocate General
8 April 2011
Introduction
[1] The petitioner is a convicted prisoner in HM Prison, Dumfries. He is serving a life sentence having a tariff of 13 years which commenced on 7 October 1998, with a further consecutive sentence to serve in connection with another offence. The earliest date at which he might be considered for parole is July 2015. In this petition he avers that by application dated 5 November 2010, he applied to the first respondent for his name to be included on the Register of Local Government Electors. On 17 December 2010, the first respondent replied, stating:
"Since you have not told me to the contrary, I am assuming that you are a convicted person. I am of the opinion therefore that any application by you cannot be allowed. This is based on the decision of the Legislation [sic] appeal court in the case of William Smith v K D Scott (Electoral Registration Officer) which confirmed that the Electoral Registration Officer and the Sheriff (in a subsequent appeal) were correct to refuse Mr Smith's registration application on the basis that he was a convicted person detained in a penal Institute.
As I mentioned to you in my earlier letter the British Government is currently considering extending the franchise to all prisoners.
I confirm that I will communicate with you when I have more information about this change in legislation."
[2] The petitioner replied confirming that he was a convicted prisoner serving a sentence and stating that he still wished a final determination of his application. The first respondent replied by letter dated 11 February 2011, stating inter alia as follows:
"As I mentioned to you earlier the British Government is currently considering extending the franchise to all prisoners.
To ensure I have the up-to-date position I have consulted with our Legal Services Department and they have responded as follows:-
1. Although the European Court of Human Rights has found against the United Kingdom in the cases HIRST 1 & 2, the government has not yet made any changes to the law. Accordingly the Representation of the People Act 1983 still applies until such a change is made by the Westminster Government.
2. The Dumfries and Galloway Council cannot act in a manner that would be ultra vires and accordingly are unable to facilitate your request to be added to the electoral register."
[3] In this petition, the petitioner seeks the following remedies:
(a) declarator that the application to him of the convicted prisoner disenfranchisement provisions of the Representation of the People Act 1983 is incompatible with his rights under European Union law; and
(b) an order requiring the first respondent to include him on the Register of Local Government Electors at the address within the constituency where he currently resides under detention; and for such an order to be made ad interim.
In the event that local government elections, including elections to the Scottish Parliament, should take place on a franchise which excludes him by reason of these disenfranchisement provisions, the petitioner seeks damages ("Francovich damages") for the contravention of his EU law rights from the first and second respondents jointly and severally.
[4] The matter came before me on the petitioner's motion for first orders and for an interim order in terms of paragraph 3, head (b) above. The issue of damages was not argued pending my decision on the petitioner's entitlement to the interim order sought. It was submitted that there was a degree of urgency in determining the application in order that the petitioner's entitlement to vote in the Scottish Parliamentary election to be held on 5 May 2011 may be determined. I heard submissions on behalf of the petitioner on 31 March 2011. The case was then adjourned until 7 April 2011, when I heard submissions on behalf of the respondents and a reply on behalf of the petitioner.
Statutory disenfranchisement provisions
[5] Under section 2 of the Representation of the People Act 1983, a person is entitled to vote as an elector at a local government election in any electoral area if on the date of the poll he -
(a) is registered in the register of local government electors for that area;
(b) is not subject to any legal incapacity to vote (age apart);
(c) is a Commonwealth citizen, a citizen of the Republic of Ireland or a relevant citizen of the Union; and
(d) is aged 18 years or over.
However, in terms of section 3, a convicted prisoner during the time when he is detained in a penal institution in pursuance of his sentence is legally incapable of voting at any parliamentary or local government election.
[6] So far as entitlement to be registered as a local government elector is concerned, section 4(3) of the 1983 Act entitles a person to be registered in the register of local government electors for an electoral area if he -
(a) is resident in that area;
(b) is not subject to any legal incapacity to vote (age apart);
(c) is a qualifying Commonwealth citizen, a citizen of the Republic of Ireland or a relevant citizen of the Union; and
(d) is of voting age.
This provision is expressly subject (section 4(4)(a)(i)) to any enactment imposing a disqualification for registration as a local government elector.
[7] Section 5 contains provisions for determining whether a person is resident at a particular address for the purposes of entitlement to be registered as a voter. It is sufficient to quote subsection (6) which provides that
"Subject to sections 7 and 7A below, a person who is detained at any place in legal custody shall not, by reason of his presence there, be treated for the purposes of section 4 as resident there."
By way of exception from section 5(6), section 7A provides that persons remanded in custody otherwise than after conviction of an offence, or a finding in criminal proceedings that he did the act or made the omission charged, shall be regarded for the purposes of section 4 as resident at the place where he is detained if the length of the period which he is likely to spend there is sufficient for him to be regarded as resident for the purposes of electoral registration.
[8] The effect of the above statutory provisions, so far as the petitioner is concerned, is that he is not entitled to be registered as a local government voter in the electoral area in which the prison in which he is serving his custodial sentence is located; nor is he treated for the purposes of entitlement to be registered as resident in that prison.
[9] I have quoted the statutory provisions applicable to local government elections. The reason for this is that it was submitted on behalf of the petitioner that local government elections (which expression was said to include, for present purposes, elections to the Scottish Parliament) fall within the ambit of EU law. Entitlement to vote in local government elections was extended to "citizens of the Union" (other than qualifying Commonwealth citizens and citizens of the Republic of Ireland, who were already so entitled) by regulation 4 of the Local Government Elections (Changes to the Franchise and Qualification of Members) Regulations 1995 (SI 1995 No 1948). These Regulations were made under powers conferred on the Secretary of State by the European Communities Act 1972. They implemented the obligation incumbent on the UK by virtue of what was then Article 8b.1 of the Treaty of Union of 7 February 1992 (the Maastricht Treaty) to grant to every citizen of the Union residing in a member state of which he is not a national the right to vote and stand as a candidate at "municipal elections" under the same conditions as nationals of that state. There is no equivalent right in relation to national Parliamentary elections in a member state, and counsel for the petitioner emphasised that the arguments which he presented were applicable only to local government elections. He submitted, however, that this meant that they were applicable to Scottish Parliamentary elections because, in terms of section 11(1) of the Scotland Act 1998, the persons entitled to vote in any constituency in a Scottish Parliamentary election are those who would be entitled to vote as electors at a local government election in an electoral area falling wholly or partly within that constituency, and who are registered as local government electors at an address within it. The correctness of this submission was not accepted by the second respondent and I return to it below.
[10] A right of appeal lies to the sheriff from any decision of an electoral registration officer on an application for registration (1983 Act, section 56(1), read for Scotland with section 204(3)). Procedurally, such an appeal takes the form of a summary application governed by the Act of Sederunt (Summary Applications, Statutory Applications and Appeals etc Rules) 1999 (SI 1999 no 929). In terms of section 57(1) of the 1983 Act, a further appeal lies on any point of law from the decision of the sheriff to "the court of three judges constituted under subsection (2) below". Subsection (2) provides:
"The court for hearing appeals under paragraph (b) of subsection (1) above shall consist of three judges of the Court of Session who shall be appointed by the Court of Session by Act of Sederunt and of whom one judge shall be appointed from each division of the Inner House and one from the Lords Ordinary in the Outer House; and the Principal Clerk of Session shall be the clerk of the court."
This court is referred to in the Rules of Court - though not in the Act itself - as the Registration Appeal Court. Its history and status were considered in detail in Smith v Scott 2007 SC 345, referred to below. The appeal procedure is by stated case in accordance with Rules of Court 41.34 - 41.38. Rule 41.37(1) requires the stated case to be put out for hearing before the court "on the earliest available day".
[11] One may also note that in terms of section 56(3), an appeal to the sheriff or to the court constituted under section 57(2)
"...shall not prejudice the operation as respects the election of the decision appealed against, and anything done in pursuance of the decision shall be as good as if no such appeal had been brought and shall not be affected by the decision of the appeal."
Incompatibility of convicted prisoner disenfranchisement with the European Convention on Human Rights
[12] In Hirst v United Kingdom (No 2) (2006) 42 EHRR 849, the European Court of Human Rights held that the blanket disenfranchisement of all convicted prisoners fell outside the UK's margin of appreciation and was incompatible with the Convention right to vote in free elections which is contained in Article 3 of the 1st Protocol to the European Convention on Human Rights. The matter came before the Scottish courts in Smith v Scott (above), in which a convicted prisoner appealed against the refusal by an Electoral Registration Officer to register him as a person entitled to vote in the Scottish Parliamentary election held in 2003. The sheriff refused the appeal and the appellant appealed to the court of three judges constituted under section 57(2) of the 1983 Act. The court declined to "read down" section 3(1) of the 1983 Act so as to render it Convention-compliant and an issue arose as to whether it was competent for a court constituted under section 57(2) to make a declaration of incompatibility in terms of section 4(2) of the Human Rights Act 1998. The court held, rejecting a contrary submission on behalf of the Advocate General, that it was competent for it to do so as the expression "Court of Session" in the Human Rights Act was capable of being construed in such a way as to extend to this court. The court narrated in detail the history of what had taken place since the judgment in Hirst had been issued in October 2005, and concluded that a formal declaration of incompatibility should be made. Since the making of this declaration, there has been a further decision by the European Court of Human Rights in Greens and MT v United Kingdom (23 November 2010) that the blanket restriction in section 3 of the 1983 Act, subsequently extended to cover elections to the European Parliament, constitutes a violation of Convention rights.
[13] During the time since the court in Smith v Scott made its declaration of incompatibility, no amending legislation has been passed to remedy the incompatibility of the 1983 Act with Article 3 of the 1st Protocol to the Convention. I was provided with a Communication dated 1 March 2011 from the UK Government to the Committee of Ministers intimating that the UK Government has requested, pursuant to Article 43 of the Convention, that the judgment in Greens and MT v United Kingdom, referred to above, be referred to the Grand Chamber of the Court in order that it may reconsider its judgment in Hirst. The Note also announced that the Government intends to bring forward legislation for Parliament to debate providing for the blanket ban in the existing law to be replaced by a disenfranchisement of prisoners sentenced to imprisonment for four years or more, with a discretion to a sentencing judge to apply the ban to prisoners sentenced to imprisonment for less than four years, if considered appropriate. Nothing in these announcements will, however, render the Scottish Parliamentary election due to take place on 5 May 2011 Convention-compliant so far as convicted prisoners are concerned.
Argument for the petitioner
[14] The difference between the present case on the one hand and Hirst and Smith v Scott on the other is that in the present case the petitioner's arguments are founded upon rights which are said to be conferred by the Treaties of the European Union rather than by the European Convention on Human Rights. The foundation of the petitioner's case is his status as a citizen of the European Union. Citizenship of the EU was first established by the Maastricht Treaty in 1992 and is held by every person holding the nationality of a member state. Article 8 conferred certain specific rights on every citizen of the Union, including (Article 8b.1, mentioned earlier) the right of a person residing in a member state of which he was not a national to vote in municipal elections in that member state, under the same conditions as nationals of that state. It is apparent that (at this stage at least) the right to vote was being conferred only on citizens resident in a member state of which they were not a national. In the Amsterdam Treaty of 1997, Article 8 of the Maastricht Treaty became Articles 17 to 20, and EU citizenship was said to "complement" national citizenship; otherwise no material change was made.
[15] For the petitioner it was submitted that the significant development for present purposes occurred when the Lisbon Treaty entered into force in December 2009. The concepts of citizenship and non-discrimination were brought together as Part 2 (Articles 18 to 25) of the Treaty on the Functioning of the European Union (TFEU). So far as concerns voting rights of a citizen resident in a member state of which he is not a national, Article 22 TFEU replaced Article 19 of the Amsterdam Treaty, which had in turn replaced Article 8b of the Maastricht Treaty, with no material amendment. There are, however, further provisions contained in Article 20(2) TFEU which had no counterpart in previous Treaties. Article 20(2) reads as follows:
"2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
(a) the right to move and reside freely within the territory of the Member States;
(b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State;
(c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State;
(d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language.
These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted there under."
[16] The significance of Article 20(2), it was submitted, is that its application is not restricted to EU citizens resident in a member state of which they are not a national. Article 20(2)(b) ought not to be regarded as surplusage but as creating rights different from those enjoyed by citizens under the specific provisions of Article 22. In particular, Article 20(2)(b) is capable of conferring voting rights on EU citizens who are nationals of the state in which they reside. To some extent, this new provision reflected a development of the law which had already occurred in the jurisprudence of the European Court of Justice. In Eman and Sevinger v Municipal Executive of The Hague, Netherlands [2006] ECR I-8060, the Court had ruled that provisions of national law concerning voting rights protected under the Amsterdam Treaty were challengeable even by individuals who held the nationality of the member state concerned. In that case it was held to be a breach of the principle of equal treatment for Dutch nationals resident in the Netherlands Antilles or Aruba to be treated differently from other Dutch nationals with regard to the right to vote in European Parliamentary elections. (Article 19 of the Amsterdam Treaty was, however, held inapplicable to a citizen of the Union wishing to vote in the member state of which he was a national.) Academic commentators have interpreted the Court's decision as a restriction on the freedom of member states to withhold fundamental rights from their own nationals.
[17] In his reply to the second respondent's submission on this point, set out below, counsel for the petitioners submitted that Article 20 is more than a political statement or an introduction to substantive rights contained in Articles 21 to 24. It is Article 20 which contains the statement of the EU rights; the articles which follow provide the "legal base" for the creation of subordinate legislation but do not define the substance of the rights. This is confirmed by reference to the Explanations Relating to the Charter of Fundamental Rights (2007/C 303/02) which accompany the Charter and which are described in their preamble as "a valuable tool of interpretation intended to clarify the provisions of the Charter". The explanation on Article 40 - which contains the right to vote at municipal elections - describes this article as corresponding to "the right guaranteed by Article 20(2)". The words after the comma in Article 20(2)(b) merely apply the principle of equivalence of treatment and do not restrict the scope of Article 20(2)(b) to citizens residing in member states of which they are not nationals. The absence of the words "residing in a member state of which he is not a national" from Article 20(2)(b) is crucial.
[18] Two recent decisions of the European Court have confirmed that rights conferred on EU citizens can be founded upon by a national of a member state in proceedings against the authorities of his or her own member state. In Rottmann v Freistaat Bavaria, Case C-135/08 (2 March 2010), an individual of Austrian origin who had obtained German citizenship by deception argued that it was contrary to his rights as an EU citizen for Germany to withdraw his German nationality, as this would render him stateless and thus deprive him of his status as a citizen of the Union. The Court accepted that because of the implications for the individual's EU citizenship it was appropriate for it to rule on a question affecting nationality, although in the end the Court ruled that it was not contrary to EU law for nationality obtained by deception to be withdrawn, provided that the decision to withdraw observed the principle of proportionality. In Zambrano v Office National de l'Emploi, Case C-34/09 (8 March 2011), a Colombian national who had sought asylum in Belgium claimed a right of residence in Belgium on the ground that if he had to leave, his two young children who had been born in Belgium and who were citizens of the Union would have to leave the territory of the Union with him and would thus be deprived of the genuine enjoyment of their citizenship rights. A number of national governments, as well as the Commission, submitted observations to the Court to the effect that a situation where individuals such as Mr Zambrano's children had never left their member state of residence did not fall within rights of freedom of movement and residence guaranteed under EU law. This argument was rejected by the Court, which referred (as it had done in several previous judgments) to citizenship of the Union as intended to be "the fundamental status of nationals of the member states" and ruled that Article 20 TFEU precluded national measures which had the effect of depriving EU citizens of the effective enjoyment of rights conferred upon them by virtue of their citizenship of the Union. It was significant that the right was found to be guaranteed by Article 20 rather than by Article 21.
[19] Reference was also made to Article 40 of the EU Charter of Fundamental Rights which states that:
"Every citizen of the Union has the right to vote and to stand as a candidate at municipal elections in the Member State in which he or she resides under the same conditions as nationals of that State."
Provisions in the Charter which correspond to rights guaranteed by the European Convention on Human Rights have the same meaning and scope as those laid down by the Convention (JMcB v LE, Case C-400/10, 5 October 2010, at paragraph 53), although Charter rights may exceed the level of protection afforded by the Convention. Counsel acknowledged that in terms of Protocol No 30 on the application of the Charter to Poland and to the United Kingdom, the Charter does not extend the ability of any court in the UK to find that the laws, regulations or administrative provisions, practices or action of the UK are inconsistent with the fundamental rights, freedoms and principles that it reaffirms. It was maintained, however, that this is an interpretative provision which does not detract from the obligation of the United Kingdom to respect the rights set out in the Charter.
[20] Drawing all of the above authorities together, counsel submitted that the petitioner was entitled, as a citizen of the Union, to vote in the forthcoming Scottish Parliamentary election. The right to vote in this election falls within the ambit of EU law. The petitioner is a citizen of the Union who is entitled to exercise his citizenship rights as against the member state of which he is a national (Rottmann; Zambrano). The right to vote is a fundamental citizenship right (Article 20(2)(b); Eman and Sevinger). The ECHR case law establishes that disenfranchisement of convicted prisoners is incompatible with fundamental rights. The relevant provisions of UK legislation accordingly deprive the petitioner of the genuine enjoyment of his citizenship right, they contravene the EU principle of equal treatment and are incompatible with respect for his fundamental rights which are guaranteed both as general principles of EU law and as set out in the Charter of Fundamental Rights. In these circumstances it was the duty of the Court to provide an effective remedy for the contravention by the UK of the petitioner's EU citizenship rights. This would be achieved by disapplying the legislation which failed to respect the petitioner's EU law rights: see e.g. Winner Wetten GmbH v Bürgermeisterin der Stadt Bergheim, Case C-409/06 (8 September 2010) at paragraphs 54-57, 61, reiterating principles established in previous judgments such as the Factortame series of cases. This duty is incumbent not only on the national courts but also on national public institutions and administrative authorities, including the first and second respondents: see e.g. Petersen v Berufungsausschuss für Zahnärtze für den Bezirk Westfalen-Lippe, Case C-341/08 (12 January 2010). It extends to granting effective interim relief. So, for example, if a national court considered it necessary to make a reference to the European Court under Article 267 TFEU for a preliminary ruling, such interim relief should be granted as was necessary to ensure the full effectiveness of the judgment to be given on the existence of the right claimed (Unibet (London) Ltd v Justitiekanslern [2007] ECR I-2271 at paragraph 77, applying Factortame).
[21] In the present case, it was submitted that in order to provide an effective remedy, it was the duty of the court to disapply, with regard to the petitioner, the reference in section 3(1) of the 1983 Act to a convicted prisoner being legally incapable of voting in local government elections. It was also necessary, in order to link the petitioner's voting entitlement to a particular constituency and thus entitle him to be registered in the local government register of electors, to disapply section 5(6) of the Act to the extent that it treats a convicted prisoner as not being resident in the place where he is detained.
Argument for the first respondent
[22] The first respondent lodged brief answers stating that as a statutory office holder he was obliged to apply the terms of section 3(1) of the 1983 Act, which contained a clear and unambiguous prohibition on a convicted prisoner voting in any parliamentary or local government election. All other Electoral Registration Officers in Scotland continued to apply section 3(1) in the same way to applications for registration by convicted prisoners.
Argument for the second respondent
[23] The second respondent's argument was presented as three propositions. First, it was submitted that no application for judicial review could competently be made because the petitioner had failed to avail himself of the statutory remedy provided by the 1983 Act (the relevant provisions of which are summarised above). Not only was the statutory appeal procedure an alternative remedy: it was an effective remedy for the purposes of both domestic law and EU law. If the petitioner was correct in his argument that it was the duty not only of a UK court but also of a national administrative authority to disapply legislation which failed to respect the petitioner's EU law rights, then it followed that the arguments advanced in these proceedings could equally be advanced in the statutory appeal to the sheriff and in any further appeal to the Registration Appeal Court. If there was a difficulty regarding the limited jurisdiction of the sheriff or of the court in a statutory appeal then, on the petitioner's argument, that limit could itself be disapplied to enable the EU law right to be respected. There is nothing in the 1999 Act of Sederunt which would preclude the sheriff from granting interim relief. Any entitlement of the petitioner to Francovich damages could (on the petitioner's argument) be determined in the course of the statutory appeal procedure or, in any event, by a stand-alone action which could not in any event be brought unless and until his EU law rights have been violated by his being unable to vote on 5 May.
[24] So far as delay in achieving finality was concerned, there was no material advantage in judicial review proceedings: it was no more difficult to convene the Registration Appeal Court at short notice than it would be to convene a Division of the Inner House to hear a reclaiming motion in the present proceedings, and the Registration Appeal Court had the advantage that no further appeal lay from its decision. On the facts of the present case, the petitioner received his appealable decision in the first respondent's letter of 17 December 2010. He has had ample time to avail himself of the statutory appeal procedure. He may still apply for a postal vote prior to the deadline on 14 April, and could be registered as a voter at any time up to 9 pm on the date of the poll if he receives a decision of the court in his favour.
[25] It was acknowledged by counsel for the second respondent that in one respect there had been a failure by the first respondent to comply with the statutory procedure. Section 56(1) of the 1983 Act excludes a right of appeal to the sheriff where the person desiring to appeal has not availed himself of a prescribed right to make representations to the registration officer on the matter which is the subject of the appeal. The relevant right to make representations is contained in regulation 29(6) and (7) of the Representation of the People (Scotland) Regulations 2001 (SI 2001 no 497), in terms of which a registration officer who intends to refuse an application for registration must send the applicant a notice stating the grounds for his opinion and that he intends to disallow the application unless the applicant gives notice within three days that he requires the application to be heard at a hearing at which he may make representations. No such notice was sent to the petitioner. Counsel submitted that in these circumstances the right of appeal to the sheriff was not excluded or, in any event, that the involvement of this court in any judicial review proceedings would be limited to securing the petitioner's right to make representations and did not open up an alternative appeal structure in place of the statutory one.
[26] The second proposition was that the petition was irrelevant because the petitioner offered no place of residence relevant to an application for registration other than HM Prison Dumfries which, by virtue of section 5(6) of the 1983 Act, was not a place at which he could be treated as resident. It was accepted, however, that this argument depended upon the decision of the court on the petitioner's argument based on EU law rights and need not be addressed separately.
[27] Thirdly, it was submitted that EU law was not applicable to the issue of voting by UK nationals in UK municipal elections, and still less to an election to the Scottish Parliament, which is not a municipal election for the purposes of EU law. As regards the first part of this proposition, it was clear from the terms of Article 20(2)(b) that it applied only to nationals of a member state other than their state of residence. Emphasis was also placed on the end words of Article 20(2) (quoted in paragraph 15 above). They were a reference inter alia to Articles 21 to 24 which followed and which were among the conditions and limits defining the rights contained in Article 20(2)(a) to (d) respectively. Looking at Part 2 of TFEU in its entirety, Article 20(2)(b) was not intended to create a stand-alone right broader than that detailed in Article 22. In Eman & Sevinger, the European Court of Justice had affirmed that what is now Article 22 could not be founded upon by "same state" nationals. In Government of the French Community v Flemish Government, Case C-212/06 (1 April 2008), the Court had stated in terms that citizenship of the Union is not intended to extend the material scope of the Treaty to internal situations which have no link with Community law. To treat Article 20(2)(b) as applicable to the petitioner's voting rights in his own member state would be inconsistent not only with the express qualifications contained in Article 20(2) but also with the decision of the Court in Government of the French Community. The Charter of Fundamental Rights added nothing to the petitioner's rights. So far as municipal elections are concerned, Article 40 is in the same terms as Article 20(2) TFEU, albeit with a comma omitted. Article 51 confirms that the Charter creates no new rights; Protocol 30 is not an "opt-out" but merely underlines that the effect of the Charter is to affirm existing EU law rights and not to add to them.
[28] In any event, counsel for the second respondent submitted that the Scottish Parliamentary election was not a municipal election within the scope of Article 20(2)(b) TFEU. Detailed arrangements for the exercise of the right to vote in municipal elections by citizens of the Union residing in a member state of which they are not nationals, as envisaged by what was then Article 8b of the Maastricht Treaty, were made by Council Directive 94/80/EC of 19 December 1994 ("the 1994 Directive"). In this Directive, the expression "municipal elections" means elections to appoint the members etc of a "basic local government unit", defined in turn as the administrative entities listed in the Annex to the Directive which contain bodies empowered to administer, at the basic level of political and administrative organisation, certain local affairs on their own responsibility. When, however, one turns to the Annex, one finds that the "basic local government units" specified for the United Kingdom include regions and Islands in Scotland and districts in Scotland. Article 2(2) of the Directive obliges member states to notify the Commission of any change in its domestic law which replaces a unit referred to in the Annex by another unit. After certain procedure, the Commission must adapt the Annex by making appropriate substitutions. For whatever reason, it appears that no adaptation has taken place to take account of the local government reorganisation which took place in Scotland in pursuance of Part I of the Local Government etc (Scotland) Act 1994. But what mattered for present purposes was that the list in the Annex did not include the Scottish Parliament and so elections of its members are not "municipal elections" for the purposes of EU law rights. The question of what is or is not a municipal election is a matter for EU law; the administrative use of the Register of Local Government electors in terms of section 11 of the Scotland Act 1998 did not, and could not, make an election a municipal election for the purposes of EU law.
[29] Finally, as regards interim relief, Counsel submitted that the balance of convenience favoured refusal of an interim order. The test enunciated by Lord Goff in Factortame (No 2) ([1991] AC 603 at 674) for the granting of an interim order restraining a public authority was whether the challenge was "firmly based": the petitioner's case here was weak. Regard should be had to the problems which would be created if, votes having been cast by prisoners on the basis of an interim order in the petitioner's favour, the petition were ultimately refused and the votes were thus found to have been invalidly cast. In any event, if the court were to uphold the petitioner's arguments except in relation to the status of Scottish Parliament elections as municipal elections for the purposes of EU law, there was no need to grant an interim order because no local government election is imminent.
Reply for the petitioner
[30] On the points raised for the first time in the submissions on behalf of the second respondent, counsel for the petitioner responded as follows. The availability of a remedy by way of judicial review was not an issue of competency but of exercise of the court's discretion. There was no absolute rule that the existence of a statutory remedy excluded the supervisory jurisdiction of the court. Reference was made to Watt v Strathclyde Regional Council 1992 SLT 324, Lord Clyde at 332E-I, and to Clyde & Edwards, Judicial Review (2000) at paragraphs 12.12 to 12.18. An alternative statutory remedy had to be effective and not illusory so far as the particular circumstances of the applicant were concerned. That could not be said in the present case. It was uncertain whether a sheriff or the Registration Appeal Court hearing an appeal under section 56 of the 1983 Act was entitled or bound to give effect to EU law rights by disapplying the disenfranchisement provisions. There could be dispute as to whether the sheriff could competently refer the matter to the European Court of Justice for a preliminary ruling. It was doubtful whether the sheriff could grant an interim order, or Francovich damages. The decision of the High Court of Ireland in Minister for Justice, Equality and Law Reform v Director of Equality Tribunal [2009] IEHC 72 and the decision of the UK Supreme Court in R (Edwards) v Environmental Agency (No 2) [2011] 1 WLR 79 afforded examples of bodies with limited jurisdiction being held not to have jurisdiction to give effect to EU law rights. In any event there would be likely to be considerable delay in pursuing an appeal to the Registration Appeal Court and it was not conceded that there was no further right of appeal. In the meantime the right to vote in the forthcoming election would have been irrevocably lost.
[31] As regards the failure of the Electoral Registration Officer to comply with the requirements of regulation 29 of the 2001 Regulations, the court's supervisory jurisdiction was not restricted to putting matters back on track, which would not be an effective remedy because of the inevitable delay. The court would require to make such order as was required to provide an effective remedy.
[32] On the issue of whether the Scottish Parliamentary elections are municipal elections for the purposes of EU law, counsel submitted that the 1994 Directive was irrelevant because it applied only to the right to vote of a citizen resident in a member state of which he was not a national under what was then Article 8b of the 1992 Treaty and is now Article 22 TFEU. The concept of a "basic local government unit" was introduced by the Directive and could not be used to interpret the expression "municipal elections" appearing in Article 20(2) of the Treaty. The list in the Annex to the 1994 Directive did, however, provide some indication that the position adopted by the United Kingdom was that anything less than a national Parliamentary election was a municipal election, at least for the purposes of Article 22. The approach taken in section 11 of the Scotland Act 1998 was consistent with this. If, however, the court was in doubt as to the correct interpretation of the expression "municipal elections" in Article 20(2) then it should refer the question for a preliminary ruling, while ensuring by interim order that the petitioner's EU right to vote is protected in the meantime.
Discussion: alternative statutory remedy
[33] I accept the submission by counsel for the petitioner that the question of availability of judicial review should be viewed as a matter of discretion rather than of competency. There is no absolute rule that the availability of a statutory remedy renders unavailable the supervisory jurisdiction of the court, and the exceptions to the rule are not rigidly defined. I consider that the test to be applied, as counsel submitted, is whether the remedy is an effective one in the circumstances of the case in question. In the present case, the statutory appeal procedure was said not to afford an effective remedy for two reasons: firstly, because it would take too long to enable the petitioner's right to vote to be determined in time for the impending election and, secondly, because the range of powers available under the statutory procedure is inadequate to enable the petitioner's EU law rights to be vindicated.
[34] In my opinion the argument in so far as based on delay is clearly unfounded. It happens that in the present case the petitioner's application for registration was submitted some six months before the date of the election. The question whether the first respondent's letter of 17 December 2010 or the subsequent letter of 11 February 2011 should be regarded as an appealable decision to refuse registration is complicated by the fact that the statutory procedure for inviting representations was not adhered to. That, however, appears to me to be beside the point, because I do not consider that in the circumstances of this case either the date of application or the date of refusal is material to the issue of whether the statutory appeal procedure affords an effective remedy. It is clearly not the case that a petitioner can bring himself within the scope of judicial review merely by delaying taking action until it is too late for the statutory procedure to run its normal course. It was suggested that in the present case the petitioner was justified in having delayed making his application for registration until November 2010 because of the position adopted by the UK Government in response to the Hirst decision, i.e. that legislation to remove the blanket ban was under consideration. That had, however, been the position since at least 2006, and had not changed at the time when the petitioner submitted his application. It seems to me to be entirely arbitrary to assess the adequacy of the time available for the statutory appeal procedure to operate by reference to the date when the petitioner happened to submit his application. There are features of the statutory process which appear to me to be designed to facilitate the speedy resolution of an appeal against refusal of registration: firstly, the use of summary application procedure before the sheriff ensures that the appeal reaches a hearing as quickly as possible; and, secondly, the Rules of the Court of Session provide for an appeal by stated case to be put out for hearing "on the earliest available day". It was acknowledged by the court in Smith v Scott (at paragraph 31) that there was no further right of appeal. These features appear to me to indicate the availability of a procedure intended to produce a final decision with minimum delay. No doubt, in an appropriate case of urgency, the procedure could be further expedited.
[35] As regards the adequacy of available remedies, again I am not satisfied that the statutory procedure is deficient in its ability to give effect to any EU law right to which the petitioner may be entitled. As I understood the submission for counsel for the petitioner, it came down to expressing some uncertainty as to the power of the sheriff and/or the Registration Appeal Court to do various things such as granting an interim order or awarding Francovich damages. So far as the former is concerned, it appears to me that the petitioner's argument based upon the principle of the primacy of EU law (summarised in paragraph 20 above) would apply equally to the determination of the petitioner's appeal by the sheriff or, if necessary, by the Registration Appeal Court. This would include the granting of effective interim relief as required by the judgments of the European Court of Justice in Factortame (No 2) and Unibet. I am not persuaded that the mere fact that contrary arguments might be presented is a sufficient reason to conclude that the statutory remedy is less than effective. In this context I do not regard the decision of the Supreme Court in R (Edwards) v Environment Agency as being in point. The issue in that case was a straightforward one of the division of jurisdiction as between the House of Lords costs officers on the one hand and the court on the other. The fact that the way in which the costs officers were held to have exceeded their jurisdiction was by purporting to take into account Council Directives regarding access to environmental justice was incidental to the point at issue, which was the restricted scope of the cost officers' task. Nor is there any statutory restriction on the jurisdiction of either the sheriff court or the Registration Appeal Court as appears to have been the case with regard to the tribunal in the Irish decision to which reference was made. In this regard it may be noted that in Autologic Holdings plc v IR Commrs [2006] 1 AC 118, Lord Nicholls of Birkenhead observed at paragraph 21 that the Special Commissioners (a statutory tribunal) had power to give effect to all relevant directly applicable provisions of Community law and to refer any necessary question for a preliminary ruling. I see no obvious reason why the powers of a sheriff or of the court in an appeal under the 1983 Act should be more restricted.
[36] It may be that a claim by the petitioner for Francovich damages would have to be pursued in a stand-alone action. That does not, however, persuade me that the statutory appeal procedure does not provide an effective means of obtaining the primary remedy sought by the petitioner, namely registration in the Register of Local Government Electors. I was referred to the judgment of the European Court in Impact v Minister for Agriculture and Food [2008] 2 CMLR 1265 as an example of a case in which the Court had held that it was a breach of the principle of effectiveness of protection of EU rights for a member state to require a party to pursue a claim under national Directive-implementing legislation in a specialised court while requiring a parallel claim based on the direct effect of the Directive itself to be pursued in the ordinary courts. Again, I do not regard that decision, which relates to the unacceptability of requiring the pursuit of concurrent arguments for the same remedy in separate proceedings, as relevant to the question whether it would be a breach of the principle of effectiveness to require the petitioner to seek his primary remedy through the statutory procedure and then, at a later date, if and when it becomes apparent that he has failed to obtain the primary remedy to which he was entitled, to require him to pursue any claim which he may have for Francovich damages in separate proceedings. There would in my opinion be no material disadvantage over what the petitioner is attempting to do in the present application, namely to have his entitlement to vote declared in time for the election, failing which (and only in the event of ultimate success on the merits of the application), to pursue his claim for damages.
[37] For these reasons I hold that in the circumstances of the present case an application for judicial review is excluded by the availability of a statutory remedy which affords an effective means of seeking redress for any failure to respect the petitioner's right as a citizen of the European Union to be registered to vote in the forthcoming Scottish Parliamentary election. The matter accordingly falls within the restriction on availability of judicial review set out in Rule of Court 58.3(2) and the petition falls to be dismissed.
Discussion: EU law incompatibility of disenfranchisement of convicted prisoners
[38] In case this application is taken further, it may be of assistance if I also express my views with regard to the substantive matters raised by the application. It must be borne in mind that the motion before me was for an interim order only. However, counsel for the petitioner invited me to dismiss the petition if I were against him on his core argument based on the terms of Article 20(2) TFEU. Otherwise, and in particular if I regarded it as appropriate to make a reference to the Court of Justice for a preliminary ruling, it was submitted that I should make an interim order protecting the petitioner's right to vote in the election. Counsel emphasised that this was not a matter of a right to vote being conferred upon the petitioner: he had such a right, which (as the ECHR cases had established) had not been lawfully removed.
[39] I address first the argument that Article 20(2)(b) TFEU confers a directly-effective right to vote in municipal elections on an EU citizen resident in the member state of which he is a national. I accept the analysis of counsel for the petitioner that, following the recasting of the Treaty provisions in the Lisbon Treaties, the substantive right to vote in municipal elections is now contained in Article 20(2)(b) rather than in Article 22(1). However, I reject the submission that Article 20(1) creates a right which is distinct from and wider than that contained in Article 22(1) in that (unlike Article 22(1)) it applies to "same-state" nationals. It is apparent that the four sub-paragraphs of Article 20(2) confer rights of very disparate kinds. Some (e.g. the right to freedom of movement and residence in sub-paragraph (a)) are clearly applicable only in a cross-border context. Others (e.g. the right to petition the European Parliament etc in sub-paragraph (d)) have no cross-border element. Each must therefore, in my opinion, be considered separately but in the context of Part 2 TFEU read as a whole. In Article 20(2)(b), the words "under the same conditions as nationals of that State" which follow the comma are, in my view, critical. They make clear that the right which is conferred in the first part of the sub-paragraph is conferred upon citizens who are not "nationals of that State". Otherwise the comparison explicit in the words "under the same conditions" could not be made. Counsel for the petitioner argued that the purpose of these words was to recognise the principle of equivalence of treatment, as illustrated by the Eman and Sevinger case. I do not accept that Article 20(2)(b) on its terms is concerned with the principle of equivalence of treatment of "same-state nationals" as was the case in Eman and Sevinger. Such a reading would, in my view, be wholly inconsistent with the comparison between nationals and resident non-nationals of the member state in question which the final words of the sub-paragraph requires.
[40] Counsel placed considerable emphasis on the absence from Article 20(2)(b) of the words "residing in a member state of which he is not a national" which appear in Article 22(1) and its predecessors. In my opinion that emphasis is misconceived. I have already indicated my reasons for concluding that the wording of Article 20(2)(b) itself indicates a restriction of its scope to "second-state" nationals. It would, in my opinion, be odd if Article 22, which is described in the "Explanations" relating to the Charter of Fundamental Rights as providing the legal base for the adoption of detailed arrangements for the exercise of "that right" (i.e. the right guaranteed by Article 20(2)) in fact provided the legal base for the adoption of detailed arrangements for the exercise of a right of much more restricted scope. No such mismatch appears to me to occur in relation to the other sub-paragraphs of Article 20(2) and the corresponding provisions of Articles 21, 23 and 24. That being so, I conclude that far from emphasising a distinction between the scope of Article 20(2)(b) and Article 22(1), the words in the latter article upon which counsel founded afford support for a reading of the former article which restricts its application to "second-state" nationals. I also conclude that as the two provisions have the same scope, the observations of the Court of Justice in Eman and Sevinger at paragraph 53 regarding the inapplicability of what is now Article 22(1) to a citizen of the Union wishing to exercise his vote in the member state of which he is a national apply with equal force to Article 20(2)(b).
[41] The cases of Rottmann and Zambrano to which reference was made do appear to me to support the proposition that EU citizenship rights can, in appropriate circumstances, be asserted without the need to demonstrate a cross-border element as between member states. However they are not, in my opinion, in point in the present case, where the right arising from EU citizenship which is created by the Treaty is clearly one which is conferred only upon persons resident in a member state of which they are not a national. It follows, therefore, that the right of a national of a member state to vote in municipal elections in that state is not an EU law right whose exercise is governed by the provisions of the Treaties.
[42] Nor, in my opinion, does reference to the Charter of Fundamental Rights add anything to the petitioner's argument. As Article 51 makes clear, the provisions of the Charter apply only when member states are implementing EU law. If, as I consider to be the case, the right to vote in municipal elections of "same-state" nationals is not an EU law right, the Charter has no application. In any event, Article 40 of the Charter is in terms identical to Article 20(2)(b). The preamble to Protocol 30 to the Charter confirms that the Charter makes rights recognised in the EU "more visible", but does not create new rights.
[43] I have reached my conclusion on the scope of the right conferred by Article 20(2)(b) without the degree of doubt which would render it appropriate for this court to make a reference to the Court of Justice for a preliminary ruling under Article 267 TFEU. The question of granting an interim remedy does not therefore arise. It is also unnecessary for me to address the issue of whether the Scottish Parliamentary election is a municipal election for the purposes of Article 20(2)(b) TFEU. This issue would only have arisen for decision if I had found that Article 20(2)(b) created an EU law right to vote in municipal elections of "same-state" nationals. For the sake of completeness, I should perhaps observe that on that hypothesis, I would have found it difficult to reach a view on the proper approach to interpretation of the expression "municipal elections" in Article 20(2)(b), and in particular on whether any assistance could be obtained in that connection from the definitions contained in the 1994 Directive laying down detailed arrangements for the exercise of the right to vote by "second-state" nationals in pursuance of what is now Article 22(1). As regards the latter, the absence of an up-to-date list of Scottish "basic local government units" in the Annex to the Directive would have introduced an unwelcome complication. I would not have been persuaded that the matter could be resolved by reference to the use, in accordance with section 11 of the Scotland Act 1998, of the Register of Local Government Electors to determine entitlement to vote in Scottish Parliamentary elections, for the reason submitted by counsel for the second respondent. If this point of interpretation had been critical to my decision, I would not have felt able to resolve it myself with "complete confidence" (R v International Stock Exchange of the United Kingdom and the Republic of Ireland, ex parte Else [1993] QB 534, Sir Thomas Bingham MR at 545) and would have regarded a reference as necessary.
[44] However, for these reasons which I have given, had I found the petitioner entitled in the circumstances averred to apply to the court by way of application for judicial review, I would, in accordance with the invitation by counsel for the petitioners, have dismissed the petition.
A mixture of law, politics, autobiography and humour. Once described as "The Devilish Advocate" (Guardian), I do have the ability to provoke a response. Sometimes it comes from someone who uses a thought process, and sometimes from jerks usually associated with the knee.
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Monday, April 11, 2011
Parliamentary sovereignty just leads to absolute power to corrupt
Parliamentary sovereignty just leads to absolute power to corrupt
According to Lord Neuberger, MR, :"It is true that membership of the Convention imposes obligations on the state to ensure that judgments of the Strasbourg court are implemented, but those obligations are in international law, not domestic law. And, ultimately, the implementation of a Strasbourg, or indeed a domestic court judgment is a matter for Parliament. If it chose not to implement a Strasbourg judgment, it might place the United Kingdom in breach of its treaty obligations, but as a matter of domestic law there would be nothing objectionable in such a course. It would be a political decision, with which the courts could not interfere".
According to Wikipedia: International law is the term commonly used for referring to laws that govern the conduct of independent nations in their relationships with one another. It differs from other legal systems in that it primarily concerns provinces rather than private citizens. In other words it is that body of law which is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and (a) The rules of law relating to the function of international institutions or organizations, their relations with each other and their relations with States and individuals; and
(b) Certain rules of law relating to individuals and non-state entities so far as the rights and duties of such individuals and non-state entities are the concern of the international community.[1] However, the term "international law" can refer to three distinct legal disciplines
Public international law, which governs the relationship between provinces and international entities, either as an individual or as a group. It includes the following specific legal field such as the treaty law, law of sea, international criminal law and the international humanitarian law.
Private international law, or conflict of laws, which addresses the questions of (1) in which legal jurisdiction may a case be heard; and (2) the law concerning which jurisdiction(s) apply to the issues in the case
Supranational law or the law of supranational organizations, which concerns at present regional agreements where the special distinguishing quality is that laws of nation states are held inapplicable when conflicting with a supranational legal system.
The two traditional branches of the field are:
jus gentium — law of nations
jus inter gentes — agreements among nations
According to Wikipedia: International human rights law refers to the body of international law designed to promote and protect human rights at the international, regional and domestic levels. As a form of international law, international human rights law is primarily made up of treaties, agreements between states intended to have binding legal effect between the parties that have agreed to them; and customary international law, rules of law derived from the consistent conduct of states acting out of the belief that the law required them to act that way. Other international human rights instruments while not legally binding contribute to the implementation, understanding and development of international human rights law and have been recognised as a source of political obligation.[1]
Enforcement of international human rights law can occur on either a domestic, regional or international level. States that ratify human rights treaties commit themselves to respecting those rights and ensuring that their domestic law is compatible with international legislation. When Domestic Law fails to provide a remedy for human rights abuses parties may be able to resort to regional or international mechanisms for enforcing human rights.
International Human rights law is closely related to, but distinct from international humanitarian law. Similar, because the substantive norms they contain are often similar or related - for example both provide a protection from torture. Distinct because they are regulated by legally distinct frameworks and usually operate in different contexts and regulate different relationships. Generally, human rights are understood to regulate the relationship between states and individuals in the context of ordinary life. While humanitarian law regulates the actions of a belligerent state and those parties it comes into contact with, both hostile and neutral, within the context of an armed conflict.[2]
For a citizen of the UK it is totally unsatisfactory that the UK is under an obligation in international law to ensure that human rights are protected under the Convention and for the UK to abide by the Court judgments, and yet these obligations do not form part of domestic law. In other words, the UK informs the international community that it is in favour of human rights, but this does not extend to the reality if citizens in the UK attempt to enforce their human rights in the domestic courts. So, in the UK, we do not have actual human rights but just the appearance of human rights.
Antoine Buyse on the ECHR Blog reports: In the preparations for the upcoming Izmir high level conference in Turkey (under the Turkish chairmanship of the Council of Europe), the European Court of Human Rights has issued an 'Opinion' which reflect its input and views for that meeting. The Izmir conference is following up on last year's conference in Interlaken in Switzerland on the ongoing reforms of the European system of human rights protection...It re-emphasizes that subsidiarity is a core aspect of human rights protection: first and foremost human rights should be ensured at the national level. But it adds, importantly, that subsidiarity "cannot be unconditional and unilateral". It only works if states do secure rights in practice and offer effective remedies and execute the Court's judgments. The Court refers to this as a shared responsibility for human rights. It also indicates that it exercises ultimate control on whether an applicant's rights have been effectively respected.
The principle of subsidiarity cannot apply in the UK because according to Lord Neuberger: "the courts would have to overcome the acceptance by Lord Hoffmann in the House of Lords in 2000 of the proposition that Parliament can ‘if it chooses, legislate contrary to fundamental principles of human rights'".
Parliament has not legislated to deny fundamental principles of human rights, in Hirst v UK (No2), Parliament has simply not sought to legislate for a change in the law. And, the courts as a result are failing to provide an effective remedy for the breach of human rights. Because Parliament is failing in its obligations the courts also fail in their obligations. And, the Committee of Ministers fails in its obligations to properly supervise execution of the ECtHR's judgments. I can see the UK using the subsidiarity principle to deny human rights to its citizens, particularly against the vulnerable groups in society like prisoners.
According to Lord Neuberger, MR, :"It is true that membership of the Convention imposes obligations on the state to ensure that judgments of the Strasbourg court are implemented, but those obligations are in international law, not domestic law. And, ultimately, the implementation of a Strasbourg, or indeed a domestic court judgment is a matter for Parliament. If it chose not to implement a Strasbourg judgment, it might place the United Kingdom in breach of its treaty obligations, but as a matter of domestic law there would be nothing objectionable in such a course. It would be a political decision, with which the courts could not interfere".
According to Wikipedia: International law is the term commonly used for referring to laws that govern the conduct of independent nations in their relationships with one another. It differs from other legal systems in that it primarily concerns provinces rather than private citizens. In other words it is that body of law which is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and (a) The rules of law relating to the function of international institutions or organizations, their relations with each other and their relations with States and individuals; and
(b) Certain rules of law relating to individuals and non-state entities so far as the rights and duties of such individuals and non-state entities are the concern of the international community.[1] However, the term "international law" can refer to three distinct legal disciplines
Public international law, which governs the relationship between provinces and international entities, either as an individual or as a group. It includes the following specific legal field such as the treaty law, law of sea, international criminal law and the international humanitarian law.
Private international law, or conflict of laws, which addresses the questions of (1) in which legal jurisdiction may a case be heard; and (2) the law concerning which jurisdiction(s) apply to the issues in the case
Supranational law or the law of supranational organizations, which concerns at present regional agreements where the special distinguishing quality is that laws of nation states are held inapplicable when conflicting with a supranational legal system.
The two traditional branches of the field are:
jus gentium — law of nations
jus inter gentes — agreements among nations
According to Wikipedia: International human rights law refers to the body of international law designed to promote and protect human rights at the international, regional and domestic levels. As a form of international law, international human rights law is primarily made up of treaties, agreements between states intended to have binding legal effect between the parties that have agreed to them; and customary international law, rules of law derived from the consistent conduct of states acting out of the belief that the law required them to act that way. Other international human rights instruments while not legally binding contribute to the implementation, understanding and development of international human rights law and have been recognised as a source of political obligation.[1]
Enforcement of international human rights law can occur on either a domestic, regional or international level. States that ratify human rights treaties commit themselves to respecting those rights and ensuring that their domestic law is compatible with international legislation. When Domestic Law fails to provide a remedy for human rights abuses parties may be able to resort to regional or international mechanisms for enforcing human rights.
International Human rights law is closely related to, but distinct from international humanitarian law. Similar, because the substantive norms they contain are often similar or related - for example both provide a protection from torture. Distinct because they are regulated by legally distinct frameworks and usually operate in different contexts and regulate different relationships. Generally, human rights are understood to regulate the relationship between states and individuals in the context of ordinary life. While humanitarian law regulates the actions of a belligerent state and those parties it comes into contact with, both hostile and neutral, within the context of an armed conflict.[2]
For a citizen of the UK it is totally unsatisfactory that the UK is under an obligation in international law to ensure that human rights are protected under the Convention and for the UK to abide by the Court judgments, and yet these obligations do not form part of domestic law. In other words, the UK informs the international community that it is in favour of human rights, but this does not extend to the reality if citizens in the UK attempt to enforce their human rights in the domestic courts. So, in the UK, we do not have actual human rights but just the appearance of human rights.
Antoine Buyse on the ECHR Blog reports: In the preparations for the upcoming Izmir high level conference in Turkey (under the Turkish chairmanship of the Council of Europe), the European Court of Human Rights has issued an 'Opinion' which reflect its input and views for that meeting. The Izmir conference is following up on last year's conference in Interlaken in Switzerland on the ongoing reforms of the European system of human rights protection...It re-emphasizes that subsidiarity is a core aspect of human rights protection: first and foremost human rights should be ensured at the national level. But it adds, importantly, that subsidiarity "cannot be unconditional and unilateral". It only works if states do secure rights in practice and offer effective remedies and execute the Court's judgments. The Court refers to this as a shared responsibility for human rights. It also indicates that it exercises ultimate control on whether an applicant's rights have been effectively respected.
The principle of subsidiarity cannot apply in the UK because according to Lord Neuberger: "the courts would have to overcome the acceptance by Lord Hoffmann in the House of Lords in 2000 of the proposition that Parliament can ‘if it chooses, legislate contrary to fundamental principles of human rights'".
Parliament has not legislated to deny fundamental principles of human rights, in Hirst v UK (No2), Parliament has simply not sought to legislate for a change in the law. And, the courts as a result are failing to provide an effective remedy for the breach of human rights. Because Parliament is failing in its obligations the courts also fail in their obligations. And, the Committee of Ministers fails in its obligations to properly supervise execution of the ECtHR's judgments. I can see the UK using the subsidiarity principle to deny human rights to its citizens, particularly against the vulnerable groups in society like prisoners.
Sunday, April 10, 2011
Extradited suspects suffer denial of human rights, warns new report
Extradited suspects suffer denial of human rights, warns new report
The fast-track extradition system used to send British citizens for trials abroad is flawed and in urgent need of reform, a report by Brussels officials warns.
By Michael Howie, Sunday Telegraph, 8:15AM BST 10 Apr 2011
Andrew Symeou, 21, with his mother Helen, near his home in the suburbs of Athens where he is on bail pending investigations into a charge of murder on the Island of Zakynthos Photo: JULIAN SIMMONDS
The fast-track extradition system used to send British citizens for trials abroad is flawed and in urgent need of reform, a report by Brussels officials warns.
The report identifies a series of failings in the operation of the controversial "no evidence needed" European arrest warrants, including incarcerating suspects in inhumane prisons for many months as they await trial.
The damning conclusions are reached in the European Commission's third review of the warrants system and the most critical since it was introduced in 2004.
It finds that the system has "remaining imperfections, notably when it comes to its implementation at national level".
Problems include "detention conditions in some member states combined with sometimes lengthy pretrial detention for surrendered persons".
While carrying out its research, the Commission received complaints about arrest warrants from the European Parliament, national parliaments, lawyers and campaigning groups.
Human rights concerns have been raised in a number of cases involving British citizens, including Andrew Symeou, the 21-year-old from north London who is being tried in Greece accused of manslaughter over the death of Jonathan Hiles, 18, from Cardiff, in a nightclub on the holiday island of Zakynthos in 2007.
Following his extradition on a European arrest warrant in July 2009, Mr Symeou spent nearly a year on remand in some of Europe's most notorious prisons, where he was kept in rat-infested, overcrowded cells.
Last week his trial was adjourned yet again after the court heard that his lawyer had brought perjury suits against two of Mr Hiles' friends who had given evidence.
The report, to be published this month, also highlights concerns over a lack of legal representation for suspects in the country seeking their return, while surrender proceedings are under way in the "executing" country.
"We continue to monitor closely the operation of the arrest warrant and consider all options to address shortcomings, including further measures to improve procedural rights," says the report.
The authors call on member states to "fill the gaps" in their own legislation to ensure suspects are treated fairly.
Another major concern raised by the report is the high number of warrants being issued for petty crimes under a system intended to bring terror suspects and other serious criminals to justice.
More than half of the 4,000 extradition requests received by Britain last year were from Poland, which has demanded the return of suspects for petty offences including stealing chocolate and the theft of a pudding.
Every month dozens of Poles are returned from the UK to their home country on a specially chartered plane.
Viviane Reding, vice president of the European Commission in charge of justice, warned the extradition system was being discredited by some countries.
"The European Arrest Warrant has been used effectively to catch criminals but it's meant for major crimes, not for someone who has stolen a bicycle.
"The national governments need to build up trust between their judicial systems so that the warrants work more efficiently," she said.
Critics demanded reforms. Claude Moraes, the Labour MEP, said: "There needs to be more safeguards for procedural rights and a complete overhaul to get rid of these petty cases."
But Tomasz Darkowski, deputy director of the Polish Ministry of Justice's international co-operation department, rejected claims that his country was abusing the warrants, saying: "It might appear to people who look only on the first sentence and see it was a small offence that [the warrant] was disproportionate.
"But ... when I talk to British judges and explain exactly the reasons, they say such a person would be treated quite severely as well in the UK."
The fast-track extradition system used to send British citizens for trials abroad is flawed and in urgent need of reform, a report by Brussels officials warns.
By Michael Howie, Sunday Telegraph, 8:15AM BST 10 Apr 2011
Andrew Symeou, 21, with his mother Helen, near his home in the suburbs of Athens where he is on bail pending investigations into a charge of murder on the Island of Zakynthos Photo: JULIAN SIMMONDSThe fast-track extradition system used to send British citizens for trials abroad is flawed and in urgent need of reform, a report by Brussels officials warns.
The report identifies a series of failings in the operation of the controversial "no evidence needed" European arrest warrants, including incarcerating suspects in inhumane prisons for many months as they await trial.
The damning conclusions are reached in the European Commission's third review of the warrants system and the most critical since it was introduced in 2004.
It finds that the system has "remaining imperfections, notably when it comes to its implementation at national level".
Problems include "detention conditions in some member states combined with sometimes lengthy pretrial detention for surrendered persons".
While carrying out its research, the Commission received complaints about arrest warrants from the European Parliament, national parliaments, lawyers and campaigning groups.
Human rights concerns have been raised in a number of cases involving British citizens, including Andrew Symeou, the 21-year-old from north London who is being tried in Greece accused of manslaughter over the death of Jonathan Hiles, 18, from Cardiff, in a nightclub on the holiday island of Zakynthos in 2007.
Following his extradition on a European arrest warrant in July 2009, Mr Symeou spent nearly a year on remand in some of Europe's most notorious prisons, where he was kept in rat-infested, overcrowded cells.
Last week his trial was adjourned yet again after the court heard that his lawyer had brought perjury suits against two of Mr Hiles' friends who had given evidence.
The report, to be published this month, also highlights concerns over a lack of legal representation for suspects in the country seeking their return, while surrender proceedings are under way in the "executing" country.
"We continue to monitor closely the operation of the arrest warrant and consider all options to address shortcomings, including further measures to improve procedural rights," says the report.
The authors call on member states to "fill the gaps" in their own legislation to ensure suspects are treated fairly.
Another major concern raised by the report is the high number of warrants being issued for petty crimes under a system intended to bring terror suspects and other serious criminals to justice.
More than half of the 4,000 extradition requests received by Britain last year were from Poland, which has demanded the return of suspects for petty offences including stealing chocolate and the theft of a pudding.
Every month dozens of Poles are returned from the UK to their home country on a specially chartered plane.
Viviane Reding, vice president of the European Commission in charge of justice, warned the extradition system was being discredited by some countries.
"The European Arrest Warrant has been used effectively to catch criminals but it's meant for major crimes, not for someone who has stolen a bicycle.
"The national governments need to build up trust between their judicial systems so that the warrants work more efficiently," she said.
Critics demanded reforms. Claude Moraes, the Labour MEP, said: "There needs to be more safeguards for procedural rights and a complete overhaul to get rid of these petty cases."
But Tomasz Darkowski, deputy director of the Polish Ministry of Justice's international co-operation department, rejected claims that his country was abusing the warrants, saying: "It might appear to people who look only on the first sentence and see it was a small offence that [the warrant] was disproportionate.
"But ... when I talk to British judges and explain exactly the reasons, they say such a person would be treated quite severely as well in the UK."
Who’s the daddy?
Who’s the daddy?
Humpty Dumpty sat on the wall, Humpty Dumpty had a great fall...
According to Lord Neuberger: “the law is common sense with knobs on”. However as the 10 February 2011 Voting by Prisoners debate in the Commons shows, knobs don’t have common sense!
I did panic for a few minutes when Google Alerts emailed me the Daily Mail story “Prime Minister can deny prisoners the vote says senior judge”. I thought it was a typo and should have read “says senile judge”. Having read the story I calmed down somewhat because I could not believe what I had read. So, I did a Google search “Lord Neuberger lecture 7 April 2011” and found what I was looking for on the Judiciary of England and Wales website: “Who’s the master now?”.
My Asperger’s Syndrome does mean that I tend to adopt the literal meaning. It was this which first started me on my campaign for prisoners’ votes. But, then I realised what I had read actually meant something else. Still, I decided to press on regardless.
The origin of the title lies, of course, in dialogue by Ray Winstone in the film Scum.
I think ‘the verdict of the people’ is best expressed in a system where the sovereignty of the people and not supremacy of Parliament rules. Churchill has said that how we treat prisoners is the test of how civilised society is. From the outset I knew that there needed to be constitutional change. Montesquieu advocated the need for a separation of powers between the Executive, Parliament and Judiciary; and in the UK we clearly suffer from a fusion of powers. In the UK, I have presented what Lord MacKay of Clashfern recently called the “Hirst problem”. And, Strasbourg, in Frodl v Austria called it, the “Hirst test”.
Lord Neuberger addresses the issue thus:
“First, there are suggestions in newspapers, articles, and even in one or two judgments, that the judiciary may, in some circumstances, be able to claim supremacy over Parliament. Secondly, some disquiet has been expressed in the press, and by others such as my erstwhile colleague, Lord Hoffmann, about the apparent creeping supremacy of the Strasbourg Court.
“Thirdly, and most fundamentally, we live in a society governed by the rule of law, and there can be an inherent tension between the notion of the supremacy of a democratically elected legislature and the rule of law. The two concepts are, I suggest, sometimes confused by the Strasbourg court, which often justifies decisions by reference to what is required in a modern democratic society when it really means to rely on what is required in a modern society governed by the rule of law”.
I have read the same suggestions that there may come a time when the supremacy of Parliament may be challenged, and I am not alarmed by the idea. Also I have read and heard the fears expressed by Lord Hoffman and the like, in relation to the ECtHR, and again I am not fearful.
I would suggest, perhaps, that Lord Neuberger is getting confused. He was schooled in the traditional black letter of the law, whereas I rejected this for its narrow outlook and instead studied the law in context or ‘living law’ approach and adopted this and adapted some to my own school of thought. The Council of Europe has 3 objectives Human Rights, Democracy and Rule of Law. At the Interlaken Conference it was mooted that Human Rights should assume the status of ‘Higher Law’ throughout the Member States of the Council of Europe. I favour this notion. However, I can see that presently, in the UK, that this would cause conflict with the notion of supremacy of Parliament. The problem is that Parliament has not been democratically elected in the first place because it assumed power by axing the head off King Charles the First, and more recently because a large section of the public were denied their human right to vote. This calls into question the legitimacy of the present Parliament to govern. The view expressed from Strasbourg is that the rule of law means, inter alia, abiding by the Convention and fully complying with the decisions of the ECtHR.
Lord Neuberger states: “I also reserve the right to change my mind if addressed in court on any of the issues I am talking about this evening to follow the example of Baron Bramwell, who when referred to an earlier decision of his, said: “The matter does not appear to me now as it appears to have appeared to me then””. I hope this also refers to him changing his mind about his decision in the Court of Appeal in Chester? The case was obviously wrongly decided. A problem with the Master of the Rolls expressing an opinion is that those judges under him in the High Court will be influenced by what he has said. Once an injustice has been created the injustice is continued.
Master of the Toilet Rolls
The Daily Express, unusually, gives a slightly milder reporting of Lord Neuberger's speech here.
And, thankfully, Adam Wagner of UK Human Rights Blog gives a translation of what Lord Neuberger was trying to say here.
Photos adapted by Jan Chyken.
Humpty Dumpty sat on the wall, Humpty Dumpty had a great fall...According to Lord Neuberger: “the law is common sense with knobs on”. However as the 10 February 2011 Voting by Prisoners debate in the Commons shows, knobs don’t have common sense!
I did panic for a few minutes when Google Alerts emailed me the Daily Mail story “Prime Minister can deny prisoners the vote says senior judge”. I thought it was a typo and should have read “says senile judge”. Having read the story I calmed down somewhat because I could not believe what I had read. So, I did a Google search “Lord Neuberger lecture 7 April 2011” and found what I was looking for on the Judiciary of England and Wales website: “Who’s the master now?”.
My Asperger’s Syndrome does mean that I tend to adopt the literal meaning. It was this which first started me on my campaign for prisoners’ votes. But, then I realised what I had read actually meant something else. Still, I decided to press on regardless.
The origin of the title lies, of course, in dialogue by Ray Winstone in the film Scum.
I think ‘the verdict of the people’ is best expressed in a system where the sovereignty of the people and not supremacy of Parliament rules. Churchill has said that how we treat prisoners is the test of how civilised society is. From the outset I knew that there needed to be constitutional change. Montesquieu advocated the need for a separation of powers between the Executive, Parliament and Judiciary; and in the UK we clearly suffer from a fusion of powers. In the UK, I have presented what Lord MacKay of Clashfern recently called the “Hirst problem”. And, Strasbourg, in Frodl v Austria called it, the “Hirst test”.
Lord Neuberger addresses the issue thus:
“First, there are suggestions in newspapers, articles, and even in one or two judgments, that the judiciary may, in some circumstances, be able to claim supremacy over Parliament. Secondly, some disquiet has been expressed in the press, and by others such as my erstwhile colleague, Lord Hoffmann, about the apparent creeping supremacy of the Strasbourg Court.
“Thirdly, and most fundamentally, we live in a society governed by the rule of law, and there can be an inherent tension between the notion of the supremacy of a democratically elected legislature and the rule of law. The two concepts are, I suggest, sometimes confused by the Strasbourg court, which often justifies decisions by reference to what is required in a modern democratic society when it really means to rely on what is required in a modern society governed by the rule of law”.
I have read the same suggestions that there may come a time when the supremacy of Parliament may be challenged, and I am not alarmed by the idea. Also I have read and heard the fears expressed by Lord Hoffman and the like, in relation to the ECtHR, and again I am not fearful.
I would suggest, perhaps, that Lord Neuberger is getting confused. He was schooled in the traditional black letter of the law, whereas I rejected this for its narrow outlook and instead studied the law in context or ‘living law’ approach and adopted this and adapted some to my own school of thought. The Council of Europe has 3 objectives Human Rights, Democracy and Rule of Law. At the Interlaken Conference it was mooted that Human Rights should assume the status of ‘Higher Law’ throughout the Member States of the Council of Europe. I favour this notion. However, I can see that presently, in the UK, that this would cause conflict with the notion of supremacy of Parliament. The problem is that Parliament has not been democratically elected in the first place because it assumed power by axing the head off King Charles the First, and more recently because a large section of the public were denied their human right to vote. This calls into question the legitimacy of the present Parliament to govern. The view expressed from Strasbourg is that the rule of law means, inter alia, abiding by the Convention and fully complying with the decisions of the ECtHR.
Lord Neuberger states: “I also reserve the right to change my mind if addressed in court on any of the issues I am talking about this evening to follow the example of Baron Bramwell, who when referred to an earlier decision of his, said: “The matter does not appear to me now as it appears to have appeared to me then””. I hope this also refers to him changing his mind about his decision in the Court of Appeal in Chester? The case was obviously wrongly decided. A problem with the Master of the Rolls expressing an opinion is that those judges under him in the High Court will be influenced by what he has said. Once an injustice has been created the injustice is continued.
Master of the Toilet RollsThe Daily Express, unusually, gives a slightly milder reporting of Lord Neuberger's speech here.
And, thankfully, Adam Wagner of UK Human Rights Blog gives a translation of what Lord Neuberger was trying to say here.
Photos adapted by Jan Chyken.
Hic Honour Judge Douglas Field accused of being drunk
Hic Honour Judge Douglas Field accused of being drunk
Judge in 'paedophile' row court case accused of being 'influenced by alcohol'
A legal watchdog is investigating a crown court judge after he was accused of behaving as though 'influenced by alcohol' during a trial in which an alleged paedophile was freed.
Judge Douglas Field, 63, is said to have attended a leaving party during an extended lunch break.
He then instructed his jury to acquit the 55-year-old defendant, who was accused of raping a minor, after they failed to reach a verdict at the end of a five-day hearing.
I do recall the psychiatrist member on my Parole Board falling asleep after a liquid lunch. And recently, Kenneth Clarke appeared the worse for wear at an after lunch session of the JCHR. However, just because I know of other examples of inebriated officials on the job it does not mean that Hic Honour Judge Douglas Field is necessarily guilty as charged.
Judge in 'paedophile' row court case accused of being 'influenced by alcohol'
A legal watchdog is investigating a crown court judge after he was accused of behaving as though 'influenced by alcohol' during a trial in which an alleged paedophile was freed.
Judge Douglas Field, 63, is said to have attended a leaving party during an extended lunch break.
He then instructed his jury to acquit the 55-year-old defendant, who was accused of raping a minor, after they failed to reach a verdict at the end of a five-day hearing.
I do recall the psychiatrist member on my Parole Board falling asleep after a liquid lunch. And recently, Kenneth Clarke appeared the worse for wear at an after lunch session of the JCHR. However, just because I know of other examples of inebriated officials on the job it does not mean that Hic Honour Judge Douglas Field is necessarily guilty as charged.
Judge throws out murderer's bid to vote in May election
Judge throws out murderer's bid to vote in May election
Published Date: 09 April 2011
By JOHN ROBERTSON, LAW CORRESPONDENT
A CONVICTED murderer's attempt to win the right to vote in the Scottish election has been rejected by a judge.
George McGeoch, who has committed a string of offences since being jailed for life for slashing a man's throat, claimed it would be against his rights under European law if he was denied the vote on 5 May.
His lawyers sought judicial review of a decision of an electoral registration officer to refuse to include McGeoch's name on the electoral roll.
Lord Tyre ruled at the Court of Session in Edinburgh yesterday that, as there were ways of challenging the officer's decision - an appeal to a sheriff and, if necessary, to the Registration Appeal Court - the judicial review procedure was excluded.
McGeoch was ordered to serve at least 13 years of a life sentence for the murder of a man in Inverness in 1998, but any possible release date has been put back by a subsequent sentence of seven and a half years for threatening security guards with a makeshift knife and escaping during a hospital visit.
On another occasion, McGeoch, armed with a razor blade, held two nurses hostage in his prison cell and threatened to kill them. He is in Dundee jail.
Under the 1983 Representation of the People Act, convicted prisoners are not given a vote at parliamentary or local government elections. In 2005, the European Court of Human Rights declared a blanket ban unlawful.
In refusing his application, the local electoral registration officer said that, in spite of the European court's ruling, no changes had been made to the law and the 1983 act "applies until such a change is made by the Westminster government".
Lord Tyre was told that the government intended to replace the blanket ban by one on prisoners serving four years or more, with judges having discretion to ban those given less than four years. However, nothing would be done in time by 5 May.
The judge said the difference between McGeoch's case and the one before the European Court was that he based his arguments on rights said to be given by treaties of the European Union rather than by the European Convention on Human Rights.
"The foundation of his case is his status as a citizen of the EU. Counsel submitted that he was entitled, as a citizen of the union, to vote in the forthcoming Scottish parliamentary election - the right to vote is a fundamental citizenship right," said Lord Tyre.
Aidan O'Neill, QC, for McGeoch, argued that appeals to a sheriff and possibly the Registration Appeal Court would take too long for his right to vote to be determined in time for the impending election.
However, Lord Tyre said: "It seems to me to be entirely arbitrary to assess the adequacy of the time available for the statutory appeal by reference to the date when (McGeoch] happened to submit his application. No doubt, in an appropriate case of urgency, the procedure could be… expedited."
Life of crime
In 1999, McGeoch, from Glasgow, was jailed for life, with a 13-year minimum, for murdering a gay man in Inverness, by slashing his throat.
In 2001, armed with a razor blade, he held two nurses hostage for five hours in Saughton Prison, Edinburgh, receiving eight years to run concurrently with his life term. In 2007, he received a concurrent sentence of three years for slashing a fellow prisoner with a broken coffee jar. In 2009, McGeoch fled a prison van after threatening two security guards with a makeshift knife and was given seven and a half years, consecutive to the life term
Published Date: 09 April 2011
By JOHN ROBERTSON, LAW CORRESPONDENT
A CONVICTED murderer's attempt to win the right to vote in the Scottish election has been rejected by a judge.
George McGeoch, who has committed a string of offences since being jailed for life for slashing a man's throat, claimed it would be against his rights under European law if he was denied the vote on 5 May.
His lawyers sought judicial review of a decision of an electoral registration officer to refuse to include McGeoch's name on the electoral roll.
Lord Tyre ruled at the Court of Session in Edinburgh yesterday that, as there were ways of challenging the officer's decision - an appeal to a sheriff and, if necessary, to the Registration Appeal Court - the judicial review procedure was excluded.
McGeoch was ordered to serve at least 13 years of a life sentence for the murder of a man in Inverness in 1998, but any possible release date has been put back by a subsequent sentence of seven and a half years for threatening security guards with a makeshift knife and escaping during a hospital visit.
On another occasion, McGeoch, armed with a razor blade, held two nurses hostage in his prison cell and threatened to kill them. He is in Dundee jail.
Under the 1983 Representation of the People Act, convicted prisoners are not given a vote at parliamentary or local government elections. In 2005, the European Court of Human Rights declared a blanket ban unlawful.
In refusing his application, the local electoral registration officer said that, in spite of the European court's ruling, no changes had been made to the law and the 1983 act "applies until such a change is made by the Westminster government".
Lord Tyre was told that the government intended to replace the blanket ban by one on prisoners serving four years or more, with judges having discretion to ban those given less than four years. However, nothing would be done in time by 5 May.
The judge said the difference between McGeoch's case and the one before the European Court was that he based his arguments on rights said to be given by treaties of the European Union rather than by the European Convention on Human Rights.
"The foundation of his case is his status as a citizen of the EU. Counsel submitted that he was entitled, as a citizen of the union, to vote in the forthcoming Scottish parliamentary election - the right to vote is a fundamental citizenship right," said Lord Tyre.
Aidan O'Neill, QC, for McGeoch, argued that appeals to a sheriff and possibly the Registration Appeal Court would take too long for his right to vote to be determined in time for the impending election.
However, Lord Tyre said: "It seems to me to be entirely arbitrary to assess the adequacy of the time available for the statutory appeal by reference to the date when (McGeoch] happened to submit his application. No doubt, in an appropriate case of urgency, the procedure could be… expedited."
Life of crime
In 1999, McGeoch, from Glasgow, was jailed for life, with a 13-year minimum, for murdering a gay man in Inverness, by slashing his throat.
In 2001, armed with a razor blade, he held two nurses hostage for five hours in Saughton Prison, Edinburgh, receiving eight years to run concurrently with his life term. In 2007, he received a concurrent sentence of three years for slashing a fellow prisoner with a broken coffee jar. In 2009, McGeoch fled a prison van after threatening two security guards with a makeshift knife and was given seven and a half years, consecutive to the life term
Saturday, April 09, 2011
LORD NEUBERGER: EUROPE RULINGS ON HUMAN RIGHTS CAN BE IGNORED
LORD NEUBERGER: EUROPE RULINGS ON HUMAN RIGHTS CAN BE IGNORED
Friday April 8 2011 by Anil Dawar
ONE of the country’s most senior judges has won widespread political support after saying the Government has the right to ignore controversial Human Rights rulings from Europe.
Lord Neuberger said the decision not to implement judgments was “ultimately a matter for Parliament”.
The Master of the Rolls said the domination of the European Court of Human Rights over the UK would only last as long as “Parliament wants it to endure”. Lord Neuberger won praise for his words which come at a time of high tension between Westminster and the court in Strasbourg over the right of prisoners to vote.
In February MPs voted to reject a demand by European human rights judges that prisoners should have the vote. They insisted that it was a matter for Parliament, but Justice Secretary Ken Clarke has said he will comply with the ruling. Lord Neuberger’s opinion will pile pressure on David Cameron to find a compromise.
Yesterday, Douglas Carswell, Conservative MP for Clacton, said: “It is refreshing to hear such a senior legal figure confirming that British people have supremacy through their parliament. Power unexercised is power lost. Again and again we discover that we are being governed by foreign courts and technocrats. Lord Neuberger has made that clear with these words.”
Ukip leader Nigel Farage said: “The Master of the Rolls is absolutely correct, Britain has the right to ignore these judgments, but he is also right that to do so we would have to choose to leave the EU. David Cameron should listen and allow the people of this country to make that choice.”
Lord Neuberger made his comments at an annual lecture to the Bar Council and Law Society on Wednesday night in a speech entitled Who Are The Masters Now?
He argued the implementation of judgments from the European court was ultimately “a matter for Parliament” that British courts could not challenge, adding: “If it chose not to implement a Strasbourg judgment, it might place the United Kingdom in breach of its treaty obligations, but as a matter of domestic law there would be nothing objectionable in such a course. It would be a political decision, with which the courts could not interfere.”
He went on to say: “Whatever limit membership imposes on legal sovereignty, it is a fetter which endures only whilst our membership endures – that is, only while Parliament wants it to endure.”
His comments come as the case for a Bill of Rights is being considered by legal experts advising the Government on ways to reform the European Convention on Human Rights so British law is not pushed aside. One former Lord Chief Justice, Lord Woolf, has said the UK may have to leave the convention because its judges may not be able to balance opposing rights.
Comment: (To follow)
Friday April 8 2011 by Anil Dawar
ONE of the country’s most senior judges has won widespread political support after saying the Government has the right to ignore controversial Human Rights rulings from Europe.
Lord Neuberger said the decision not to implement judgments was “ultimately a matter for Parliament”.
The Master of the Rolls said the domination of the European Court of Human Rights over the UK would only last as long as “Parliament wants it to endure”. Lord Neuberger won praise for his words which come at a time of high tension between Westminster and the court in Strasbourg over the right of prisoners to vote.
In February MPs voted to reject a demand by European human rights judges that prisoners should have the vote. They insisted that it was a matter for Parliament, but Justice Secretary Ken Clarke has said he will comply with the ruling. Lord Neuberger’s opinion will pile pressure on David Cameron to find a compromise.
Yesterday, Douglas Carswell, Conservative MP for Clacton, said: “It is refreshing to hear such a senior legal figure confirming that British people have supremacy through their parliament. Power unexercised is power lost. Again and again we discover that we are being governed by foreign courts and technocrats. Lord Neuberger has made that clear with these words.”
Ukip leader Nigel Farage said: “The Master of the Rolls is absolutely correct, Britain has the right to ignore these judgments, but he is also right that to do so we would have to choose to leave the EU. David Cameron should listen and allow the people of this country to make that choice.”
Lord Neuberger made his comments at an annual lecture to the Bar Council and Law Society on Wednesday night in a speech entitled Who Are The Masters Now?
He argued the implementation of judgments from the European court was ultimately “a matter for Parliament” that British courts could not challenge, adding: “If it chose not to implement a Strasbourg judgment, it might place the United Kingdom in breach of its treaty obligations, but as a matter of domestic law there would be nothing objectionable in such a course. It would be a political decision, with which the courts could not interfere.”
He went on to say: “Whatever limit membership imposes on legal sovereignty, it is a fetter which endures only whilst our membership endures – that is, only while Parliament wants it to endure.”
His comments come as the case for a Bill of Rights is being considered by legal experts advising the Government on ways to reform the European Convention on Human Rights so British law is not pushed aside. One former Lord Chief Justice, Lord Woolf, has said the UK may have to leave the convention because its judges may not be able to balance opposing rights.
Comment: (To follow)
JOHNSON'S ISLAND
JOHNSON'S ISLAND
Located north of Port Clinton in Sandusky Bay of Lake Erie, Johnson's Island was a Union prison for Confederate officers during the Civil War. The island's isolated location made it difficult for prisoners to escape. In addition, the island was near several important Ohio cities and lines of road, rail and water transportation. It was convenient to transport prisoners and supplies while maintaining the facility. Johnson's Island opened in 1862 and housed prisoners until September 1865. Estimates vary on how many men served time here, but it is likely at least 10,000 were incarcerated there during the course of the war.
Located north of Port Clinton in Sandusky Bay of Lake Erie, Johnson's Island was a Union prison for Confederate officers during the Civil War. The island's isolated location made it difficult for prisoners to escape. In addition, the island was near several important Ohio cities and lines of road, rail and water transportation. It was convenient to transport prisoners and supplies while maintaining the facility. Johnson's Island opened in 1862 and housed prisoners until September 1865. Estimates vary on how many men served time here, but it is likely at least 10,000 were incarcerated there during the course of the war.
Convicted murderer denied right to vote in Holyrood election
Convicted murderer denied right to vote in Holyrood election
George McGeoch, who is serving life for killing a man in Inverness, loses his appeal to be given a postal ballot from Dumfries Prison.
By Gordon Darroch
08 April 2011 20:00 GMT
A convicted murderer has been told he will not be allowed to vote in next month's Scottish Parliament election - despite a European court ruling granting voting rights to prisoners.
George McGeoch, 39, went to the Court of Session in Edinburgh claiming he should be allowed a postal ballot or given £2500 in compensation.
It followed a ruling by the European Court of Human Rights that denying prisoners the vote is unlawful.
The Electoral Registration Officer for Dumfries and Galloway had told McGeoch, who is serving his sentence in Dumfries Prison, that his hands were tied until the Westminster Government changed the law.
At the Court of Session, lawyers for McGeoch, from Glasgow, asked Lord Tyre to rule that the decision to keep him off the Register of Local Government Electors breached his rights as a citizen of the European Union.
But the judge rejected McGeoch's request for judicial review on the grounds that he already had the right to appeal the official's decision to a local sheriff.
In a written opinion, he said: "Judicial review is excluded by the availability of a statutory remedy which affords an effective means of seeking redress for any failure to respect the petitioner's rights as a citizen of the European Union to be registered to vote in the forthcoming Scottish Parliamentary election."
McGeoch is serving a life sentence for murdering bakery worker Eric Innes in Inverness in 1998 by slashing his throat in his own home.
He was told he must serve at least 13 years behind bars before being considered by parole, and has since had seven and a half years added to his term after he escaped from a Reliance custody van during a hospital visit.
McGeoch robbed two Reliance staff at knifepoint, locked them in the vehicle and walked away wearing a Reliance jacket. He later told police he had staged the break-out "for a laugh".
About 3,500 prisoners in Britain have taken legal action to secure the right to vote after the ECHR ruling, a decision which Prime Minister David Cameron said made him "physically sick".
The UK Government has asked for the case to be referred to the Grand Chamber of the Court, effectively appealing against the decision.
Comment: I cannot think of a clearer case for the need to change the Tyre. The Judge has obviously abdicated responsibility.
The fact that McGeoch is entitled to vote is evidenced by the ECtHR decision in Hirst v UK (No2).
"The Electoral Registration Officer for Dumfries and Galloway had told McGeoch, who is serving his sentence in Dumfries Prison, that his hands were tied until the Westminster Government changed the law".
Because of this it is arguable that McGeoch has got a ECtHR case on the grounds that he has no effective remedy under Article 13 of the Convention. Notwithstanding Tyre stating he has a remedy with "the right to appeal the official's decision to a local sheriff". But, his hands will also be tied. Therefore, it is not an effective remedy. In addition, in my view, McGeoch has an arguable case to take to the CJEU on the ground that the UK is failing to abide by the Treaty of London 1949.
George McGeoch, who is serving life for killing a man in Inverness, loses his appeal to be given a postal ballot from Dumfries Prison.
By Gordon Darroch
08 April 2011 20:00 GMT
A convicted murderer has been told he will not be allowed to vote in next month's Scottish Parliament election - despite a European court ruling granting voting rights to prisoners.
George McGeoch, 39, went to the Court of Session in Edinburgh claiming he should be allowed a postal ballot or given £2500 in compensation.
It followed a ruling by the European Court of Human Rights that denying prisoners the vote is unlawful.
The Electoral Registration Officer for Dumfries and Galloway had told McGeoch, who is serving his sentence in Dumfries Prison, that his hands were tied until the Westminster Government changed the law.
At the Court of Session, lawyers for McGeoch, from Glasgow, asked Lord Tyre to rule that the decision to keep him off the Register of Local Government Electors breached his rights as a citizen of the European Union.
But the judge rejected McGeoch's request for judicial review on the grounds that he already had the right to appeal the official's decision to a local sheriff.
In a written opinion, he said: "Judicial review is excluded by the availability of a statutory remedy which affords an effective means of seeking redress for any failure to respect the petitioner's rights as a citizen of the European Union to be registered to vote in the forthcoming Scottish Parliamentary election."
McGeoch is serving a life sentence for murdering bakery worker Eric Innes in Inverness in 1998 by slashing his throat in his own home.
He was told he must serve at least 13 years behind bars before being considered by parole, and has since had seven and a half years added to his term after he escaped from a Reliance custody van during a hospital visit.
McGeoch robbed two Reliance staff at knifepoint, locked them in the vehicle and walked away wearing a Reliance jacket. He later told police he had staged the break-out "for a laugh".
About 3,500 prisoners in Britain have taken legal action to secure the right to vote after the ECHR ruling, a decision which Prime Minister David Cameron said made him "physically sick".
The UK Government has asked for the case to be referred to the Grand Chamber of the Court, effectively appealing against the decision.
Comment: I cannot think of a clearer case for the need to change the Tyre. The Judge has obviously abdicated responsibility.
The fact that McGeoch is entitled to vote is evidenced by the ECtHR decision in Hirst v UK (No2).
"The Electoral Registration Officer for Dumfries and Galloway had told McGeoch, who is serving his sentence in Dumfries Prison, that his hands were tied until the Westminster Government changed the law".
Because of this it is arguable that McGeoch has got a ECtHR case on the grounds that he has no effective remedy under Article 13 of the Convention. Notwithstanding Tyre stating he has a remedy with "the right to appeal the official's decision to a local sheriff". But, his hands will also be tied. Therefore, it is not an effective remedy. In addition, in my view, McGeoch has an arguable case to take to the CJEU on the ground that the UK is failing to abide by the Treaty of London 1949.
‘My time on the blanket’
‘My time on the blanket’
Published on Friday 8 April 2011 10:55
May 5th is an important day for Irish republicans as it was the date in 1981 when Bobby Sands died after 66 days on hunger strike.
It was also the date in 1977 when Derry republican Pius McNaught was arrested, a move that would lead him to the prison protests in Long Kesh. Like many young republicans, he refused to wear a prison uniform and immediately joined the blanket protest.
The jail dispute began in 1976 when Kieran Nugent refused to wear prison uniform. The protest escalated over the next four years through the ‘no wash’ and dirty protests, before seven republicans went on hunger strike in 1980. Their hunger strike ended when they the prisoners thought they had secured a deal from the prison authorities, however, the British Government reneged on the deal.
In March 1981 Bobby Sands began another hunger strike which eventually led to his death and that of nine other prisoners, including Derry men, Patsy O’Hara and Mickey Devine.
Explaining how he came to be in Long Kesh, Mr McNaught said; “I was 20 years of age when I was arrested on 5th May, 1977 along with four other men. Just four years to the day before the death of Bobby Sands. I was charged with possession of explosives and bomb making materials and kept on remand in Crumlin Road Jail and the H-Blocks. After a year and a half, I was sentenced to twelve years imprisonment through the non-jury Diplock Courts.”
After he was sentenced, the Derry republican had to face the realities of life ‘on the blanket.’
“Two days later, when we were taken again to the H-Blocks, we were told to put on the prison uniform and conform to prison rules, but we all refused.
“We were then taken to H4, one of the ‘Blanket Blocks’, where our clothes were taken from us and we were handed a towel to cover ourselves.
“I was put into a cell with one of the men I was sentenced with, Thomas Starrs, who is still one of my closest friends today. The cell had a window, which we soon realised we would have to smash because of the smell,” he said.
It wasn’t long before he got his first taste of the brutality of the prison regime. “The next morning the screws came to our cell to take us out to the Governor.
“We were beaten the whole way to his office and again in front of him. I remember him telling us about all the privileges we were missing out on, and how great a prison it was. I also remember his parting shot to me as we were taken from the room, he told us not to believe the lies about the bad beatings that went on in the blanket blocks, as they weren’t true.
“He then directed the screws to take me to the medical officer for treatment to the cuts I received during the beating,”
Mr McNaught said the experience of the beating was an introduction to what became the norm for many republican prisoners in the jail at the time.
“Back in the cell, Thomas asked me if I thought it would be like this all the time, I didn’t know, but I hoped not. In the years that followed however, it didn’t really get much better for us. We were tortured, beaten and degraded, and we endured forced washes, wing shifts and mirror searches,” he explained.
Mr McNaught also said the prison protest also created problems for the families of prisoners, including many from Derry who made the journey to Long Kesh where they faced rigorous searches in a effort to stop them smuggling items in to the prisoners.
He said during his first two years of imprisonment he did not see any members of his family. “I just didn’t want them to see me wearing the prison uniform, which you had to wear in order to receive a visit. I only started taking visits when the first Hunger Strike took place in 1980,” he said.
Mr McNaught described the second hunger strike as one of the most important events in Irish history. “The 1981 Hunger Strike was a catalyst, a truly historic moment in the struggle for Irish freedom.
“The election of Bobby Sands as MP for Fermanagh South Tyrone on April 9th, 1981 effectively ended the British Government’s policy of criminalisation, and his 30,000 votes reverberated across the world showing the support that existed for republican prisoners and it provided hope and inspiration for oppressed peoples across the world.”
The Derry man said he still struggles with memories of his experiences during the hunger strike.
“The years that followed are well documented, but some things that happened during this time still feel very raw at times, and hard to talk about. Today my wife, my three grown up children, and my extended family, are a great comfort to me in dealing with this period of my life.”
Mr McNaught is still involved in republican politics and works with the ex-prisoners’ support group, Tar Abhaile.
“I now volunteer in Tar Abhaile, the Republican Former Prisoners Centre. Tar Abhaile work hard to support former prisoners and their families and they have helped me and many others.
“I still have very strong political beliefs and I am active in Sinn Féin and fully endorse the strategic path it has taken.
“Looking back at my time in prison, especially the period that followed the 1981 Hunger Strike and comparing it to the political path we are now on, I can see parallels. I believe change has come. There is a better way forward and it is through peaceful democratic means. No-one should be afraid of peace. Things are changing for the better as each day goes by, but it takes everyone to embrace this change for the sake of future generations.” he said.
The former blanketman also encouraged as many people as possible to take part in hunger strike commemoration events.
“I feel it’s very important to continue to commemorate the sacrifice of the Hunger Strikers and that of all republican prisoners during the conflict, their families, friends and supporters.
“I would urge everyone to attend the major Hunger Strike march planned for Derry next month on Sunday, May 1st and make it truly a momentous event,” he said.
Published on Friday 8 April 2011 10:55
May 5th is an important day for Irish republicans as it was the date in 1981 when Bobby Sands died after 66 days on hunger strike.
It was also the date in 1977 when Derry republican Pius McNaught was arrested, a move that would lead him to the prison protests in Long Kesh. Like many young republicans, he refused to wear a prison uniform and immediately joined the blanket protest.
The jail dispute began in 1976 when Kieran Nugent refused to wear prison uniform. The protest escalated over the next four years through the ‘no wash’ and dirty protests, before seven republicans went on hunger strike in 1980. Their hunger strike ended when they the prisoners thought they had secured a deal from the prison authorities, however, the British Government reneged on the deal.
In March 1981 Bobby Sands began another hunger strike which eventually led to his death and that of nine other prisoners, including Derry men, Patsy O’Hara and Mickey Devine.
Explaining how he came to be in Long Kesh, Mr McNaught said; “I was 20 years of age when I was arrested on 5th May, 1977 along with four other men. Just four years to the day before the death of Bobby Sands. I was charged with possession of explosives and bomb making materials and kept on remand in Crumlin Road Jail and the H-Blocks. After a year and a half, I was sentenced to twelve years imprisonment through the non-jury Diplock Courts.”
After he was sentenced, the Derry republican had to face the realities of life ‘on the blanket.’
“Two days later, when we were taken again to the H-Blocks, we were told to put on the prison uniform and conform to prison rules, but we all refused.
“We were then taken to H4, one of the ‘Blanket Blocks’, where our clothes were taken from us and we were handed a towel to cover ourselves.
“I was put into a cell with one of the men I was sentenced with, Thomas Starrs, who is still one of my closest friends today. The cell had a window, which we soon realised we would have to smash because of the smell,” he said.
It wasn’t long before he got his first taste of the brutality of the prison regime. “The next morning the screws came to our cell to take us out to the Governor.
“We were beaten the whole way to his office and again in front of him. I remember him telling us about all the privileges we were missing out on, and how great a prison it was. I also remember his parting shot to me as we were taken from the room, he told us not to believe the lies about the bad beatings that went on in the blanket blocks, as they weren’t true.
“He then directed the screws to take me to the medical officer for treatment to the cuts I received during the beating,”
Mr McNaught said the experience of the beating was an introduction to what became the norm for many republican prisoners in the jail at the time.
“Back in the cell, Thomas asked me if I thought it would be like this all the time, I didn’t know, but I hoped not. In the years that followed however, it didn’t really get much better for us. We were tortured, beaten and degraded, and we endured forced washes, wing shifts and mirror searches,” he explained.
Mr McNaught also said the prison protest also created problems for the families of prisoners, including many from Derry who made the journey to Long Kesh where they faced rigorous searches in a effort to stop them smuggling items in to the prisoners.
He said during his first two years of imprisonment he did not see any members of his family. “I just didn’t want them to see me wearing the prison uniform, which you had to wear in order to receive a visit. I only started taking visits when the first Hunger Strike took place in 1980,” he said.
Mr McNaught described the second hunger strike as one of the most important events in Irish history. “The 1981 Hunger Strike was a catalyst, a truly historic moment in the struggle for Irish freedom.
“The election of Bobby Sands as MP for Fermanagh South Tyrone on April 9th, 1981 effectively ended the British Government’s policy of criminalisation, and his 30,000 votes reverberated across the world showing the support that existed for republican prisoners and it provided hope and inspiration for oppressed peoples across the world.”
The Derry man said he still struggles with memories of his experiences during the hunger strike.
“The years that followed are well documented, but some things that happened during this time still feel very raw at times, and hard to talk about. Today my wife, my three grown up children, and my extended family, are a great comfort to me in dealing with this period of my life.”
Mr McNaught is still involved in republican politics and works with the ex-prisoners’ support group, Tar Abhaile.
“I now volunteer in Tar Abhaile, the Republican Former Prisoners Centre. Tar Abhaile work hard to support former prisoners and their families and they have helped me and many others.
“I still have very strong political beliefs and I am active in Sinn Féin and fully endorse the strategic path it has taken.
“Looking back at my time in prison, especially the period that followed the 1981 Hunger Strike and comparing it to the political path we are now on, I can see parallels. I believe change has come. There is a better way forward and it is through peaceful democratic means. No-one should be afraid of peace. Things are changing for the better as each day goes by, but it takes everyone to embrace this change for the sake of future generations.” he said.
The former blanketman also encouraged as many people as possible to take part in hunger strike commemoration events.
“I feel it’s very important to continue to commemorate the sacrifice of the Hunger Strikers and that of all republican prisoners during the conflict, their families, friends and supporters.
“I would urge everyone to attend the major Hunger Strike march planned for Derry next month on Sunday, May 1st and make it truly a momentous event,” he said.
City law firm Allen & Overy's dirty old men getting hot under the collar!
City law firm Allen & Overy's dirty old men getting hot under the collar!
Dirty Old Men at the City law firm Allen & Overy have complained to their HR department that they are oggling the girls and that it is distracting them from doing their work. Instead of the HR department admonishing them for being DOMs and telling them to get on with ther work and stop looking at the scenery, it was decided instead to attack the trainee girls.
“The main problem seems to be very short skirts and high heels and generally looking like we’re going clubbing instead of to the office. HR would like this to be addressed asap so they don’t have to have uncomfortable discussions with individuals about it, especially as we’re now getting into summer and are more likely to be wearing less as it gets hotter!”.
Spoilsports!
Dirty Old Men at the City law firm Allen & Overy have complained to their HR department that they are oggling the girls and that it is distracting them from doing their work. Instead of the HR department admonishing them for being DOMs and telling them to get on with ther work and stop looking at the scenery, it was decided instead to attack the trainee girls.
“The main problem seems to be very short skirts and high heels and generally looking like we’re going clubbing instead of to the office. HR would like this to be addressed asap so they don’t have to have uncomfortable discussions with individuals about it, especially as we’re now getting into summer and are more likely to be wearing less as it gets hotter!”.
Spoilsports!
Friday, April 08, 2011
Dumfries prisoner's vote bid rejected by judge
Dumfries prisoner's vote bid rejected by judge
8 April 2011 Last updated at 16:10
A convicted murderer's bid to win his right to vote in the Holyrood election has been rejected by a judge.
George McGeoch wanted a review of the UK government's opposition to votes for convicts
George McGeoch, 39, wanted a review of UK government opposition to votes for convicts and challenged the policy.
The government has launched a legal bid to overturn a European Court of Human Rights ruling that the UK's blanket ban on prisoners voting is unlawful.
McGeoch, from Glasgow, is serving a life sentence in Dumfries prison for the murder of Eric Innes in Inverness.
He killed Mr Innes in his own home in 1998 by slashing his throat.
McGeoch received a minimum term of 13 years but due to subsequent convictions will not be considered for parole until 2015.
In February 2008 he left two Reliance staff locked in their own vehicle after staging a break-out during a hospital visit in Perth.
He was jailed in 2009 for an extra seven-and-a-half years for the violent attack during which he used a makeshift knife.
McGeoch was also handed an eight-year prison term in 2002 for holding two nurses hostage in his prison cell.
Sitting in the Court of Session, judge Lord Tyre noted that McGeoch's case differed from other claims based on human rights rules and rejected his call for a judicial review.
The judge ruled that McGeoch should have launched his legal bid to vote in another way.
Represented by Aidan O'Neill QC, McGeoch was challenging the electoral registration officer for Dumfries and Galloway's decision not to include him on the electoral roll.
Comment: Lord Tyre rolling along and is completely unaware that the 3 other wheels on his wagon have fallen off...
8 April 2011 Last updated at 16:10
A convicted murderer's bid to win his right to vote in the Holyrood election has been rejected by a judge.
George McGeoch wanted a review of the UK government's opposition to votes for convictsGeorge McGeoch, 39, wanted a review of UK government opposition to votes for convicts and challenged the policy.
The government has launched a legal bid to overturn a European Court of Human Rights ruling that the UK's blanket ban on prisoners voting is unlawful.
McGeoch, from Glasgow, is serving a life sentence in Dumfries prison for the murder of Eric Innes in Inverness.
He killed Mr Innes in his own home in 1998 by slashing his throat.
McGeoch received a minimum term of 13 years but due to subsequent convictions will not be considered for parole until 2015.
In February 2008 he left two Reliance staff locked in their own vehicle after staging a break-out during a hospital visit in Perth.
He was jailed in 2009 for an extra seven-and-a-half years for the violent attack during which he used a makeshift knife.
McGeoch was also handed an eight-year prison term in 2002 for holding two nurses hostage in his prison cell.
Sitting in the Court of Session, judge Lord Tyre noted that McGeoch's case differed from other claims based on human rights rules and rejected his call for a judicial review.
The judge ruled that McGeoch should have launched his legal bid to vote in another way.
Represented by Aidan O'Neill QC, McGeoch was challenging the electoral registration officer for Dumfries and Galloway's decision not to include him on the electoral roll.
Comment: Lord Tyre rolling along and is completely unaware that the 3 other wheels on his wagon have fallen off...
Prime Minister can deny prisoners the vote says senior judge
Prime Minister can deny prisoners the vote says senior judge
By Steve Doughty
Last updated at 12:21 AM on 8th April 2011
Ruling: Lord Neuberger said that the Prime Minister can defy European judges over prisoner votes
David Cameron is free to deny prisoners the right to vote without interference from the courts, one of the country’s most senior judges said yesterday.
The Prime Minister can defy European human rights judges without fear of a battle with the judiciary, Master of the Rolls Lord Neuberger said.
It clears the way for Mr Cameron to reject demands that Britain allow inmates to vote and removes the risk of £150million compensation claims from criminals.
And the Master of the Rolls – the leading civil law judge in England – revealed there were deep concerns among judges that the Strasbourg-based European Court of Human Rights had become too big for its boots.
He said judges ‘think that there is something in the view that Strasbourg is getting rather too interventionist in some areas’ and believe it is trying to dictate laws to Europe.
Lord Neuberger gave his verdict on the right of Parliament to reject votes for prisoners in a lecture to lawyers.
Tony Blair and Gordon Brown stalled over carrying out a deeply unpopular instruction from Europe, but Strasbourg has been putting pressure on Mr Cameron’s Government and expects him to comply by this autumn.
Some senior ministers, including Justice Secretary Kenneth Clarke, have said prisoners must be given the vote in accordance with ‘the rule of law’.
MPs, however, indicated by a big majority in a free vote earlier this year that they deplore the idea of enfranchising prisoners.
He said the law was made by Parliament and that Parliament was free to choose whether it listened to judges in Strasbourg.
He said: ‘The implementation of a Strasbourg or, indeed, a domestic court judgment is a matter for Parliament.
‘If it chose not to implement a Strasbourg judgment, it might place the United Kingdom in breach of its treaty obligations, but... it would be a political decision, with which the courts could not interfere.’
Choice: Some senior ministers want to give prisoners the vote, but many other MPs voted against the measure during a free vote earlier this year
The Master of the Rolls said that the Strasbourg prisoner vote ruling might prevent dictators from locking up political opponents, and that adapting the law might be a small price to pay for a civilised Europe.
‘Nonetheless,’ he said, ‘many people, including some judges, think that there is something in the view that Strasbourg is getting rather too interventionist in some areas; that it has strayed too far from the alarm bell intention behind the Convention and too far towards the European Bill of Rights end of the spectrum.’
Comment: I suspect that the Daily Mail has got the wrong end of the stick here. But if it is accurate reporting, then Kenneth Clarke needs to be ensuring that the men in the white coats remove this mental patient from office until he recovers his senses.
UPDATE: Read the lecture here.
By Steve Doughty
Last updated at 12:21 AM on 8th April 2011
Ruling: Lord Neuberger said that the Prime Minister can defy European judges over prisoner votesDavid Cameron is free to deny prisoners the right to vote without interference from the courts, one of the country’s most senior judges said yesterday.
The Prime Minister can defy European human rights judges without fear of a battle with the judiciary, Master of the Rolls Lord Neuberger said.
It clears the way for Mr Cameron to reject demands that Britain allow inmates to vote and removes the risk of £150million compensation claims from criminals.
And the Master of the Rolls – the leading civil law judge in England – revealed there were deep concerns among judges that the Strasbourg-based European Court of Human Rights had become too big for its boots.
He said judges ‘think that there is something in the view that Strasbourg is getting rather too interventionist in some areas’ and believe it is trying to dictate laws to Europe.
Lord Neuberger gave his verdict on the right of Parliament to reject votes for prisoners in a lecture to lawyers.
Tony Blair and Gordon Brown stalled over carrying out a deeply unpopular instruction from Europe, but Strasbourg has been putting pressure on Mr Cameron’s Government and expects him to comply by this autumn.
Some senior ministers, including Justice Secretary Kenneth Clarke, have said prisoners must be given the vote in accordance with ‘the rule of law’.
MPs, however, indicated by a big majority in a free vote earlier this year that they deplore the idea of enfranchising prisoners.
He said the law was made by Parliament and that Parliament was free to choose whether it listened to judges in Strasbourg.
He said: ‘The implementation of a Strasbourg or, indeed, a domestic court judgment is a matter for Parliament.
‘If it chose not to implement a Strasbourg judgment, it might place the United Kingdom in breach of its treaty obligations, but... it would be a political decision, with which the courts could not interfere.’
Choice: Some senior ministers want to give prisoners the vote, but many other MPs voted against the measure during a free vote earlier this yearThe Master of the Rolls said that the Strasbourg prisoner vote ruling might prevent dictators from locking up political opponents, and that adapting the law might be a small price to pay for a civilised Europe.
‘Nonetheless,’ he said, ‘many people, including some judges, think that there is something in the view that Strasbourg is getting rather too interventionist in some areas; that it has strayed too far from the alarm bell intention behind the Convention and too far towards the European Bill of Rights end of the spectrum.’
Comment: I suspect that the Daily Mail has got the wrong end of the stick here. But if it is accurate reporting, then Kenneth Clarke needs to be ensuring that the men in the white coats remove this mental patient from office until he recovers his senses.
UPDATE: Read the lecture here.
Thursday, April 07, 2011
How can you get a fair trial if judges also sit on the jury?
How can you get a fair trial if judges also sit on the jury?
Observations for judges on being called for jury service
Lord Chief Justice letter to the Judiciary
Dear Judge,
You will be aware that section 321 of the Criminal Justice Act 2003 came into force on 5 April 2004. The effect of section 321 is to bring into effect schedule 33 which removes the entitlement to be excused from jury service, as of right for a number of people. Judges are amongst the categories of people who are no longer entitled to be excused from jury service, as of right.
The purpose of this letter is to give some guidance to judges who are called for jury service. Both judges conducting trials and judges summoned should bear its contents in mind. This is an initial view. It is not binding on trial judges if and when issues arise as a result of a member of the judiciary being on a jury.
When a judge serves on a jury he does so as part of his duty as a private citizen. It is not appropriate for me to issue guidance as to how a private citizen should conduct his or herself in a jury room. Nevertheless, I am aware that many members of the judiciary are anxious about what to do if they find themselves on a jury and I offer the following observations of my own in the hope that they will be of some assistance.
The initial point is that judges are expected to comply with the law. If judges are called for jury service they should undertake this duty, unless they can demonstrate 'good reason' as to why they should not serve as summoned. Section 9 Juries Act 1974 provides that if any person who has been summoned to attend as a juror shows to the satisfaction of the summoning officer that there is good cause why they should be excused from attending, the summoning officer may excuse that person. A more common course of action is for the summoning officer to allow a deferral of the date on which a juror has to attend for jury service under section 9A Juries Act 1974.
The Lord Chancellor has issued guidance to the Jury Central Summoning Bureau when considering deferral applications and applications to be excused and I enclose a copy of this guidance. This guidance makes clear that only in extreme circumstances, will a person be excused from jury service. Paragraph 18 deals specifically with applications made by members of the judiciary. It states that members of the judiciary or those involved in the administration of justice who apply for excusal or deferral on grounds that they may be known to a party or parties involved in the trial should normally be deferred or moved to an alternative court where the grounds for exclusion may not exist. If this is not possible, then they should be excused.
A judge should make an application for deferral where he has significant judicial commitments which would make it particularly inconvenient for him to do jury service at the time he was called to do so. I would only expect judicial commitments to be a reason for deferral where, if there was no deferral, there could be a significant interference with the administration of justice. An example of where such an application may be appropriate would be where the judge is involved in a heavy trial, which had been fixed for some time and where the judge had conducted pre-hearings such as PII applications. Involvement in a case with custody time limits implications may also be a 'good reason' for deferral. Whenever a judge is summoned for jury service at a time when he would otherwise be sitting as a judge he should at once consult with his Presiding Judge (or in the case of a High Court Judge his Head of Division) before deciding whether to seek deferral because of the existence of significant judicial commitments.
However, in the absence of special circumstances, the fact that a judge has sat as a juror in a court should not be regarded as disentitling him from sitting in that court or any other appellate court in future, providing that he does not hear the case on which he sat as a juror or any connected case. Where a judge does sit as a juror he must thereafter have nothing more to do with the case or any connected case in his judicial capacity.
Where a judge serves as a juror the time served will count as sitting time for the purpose of calculating the annual sitting requirement. If the judge is a High Court judge or above and he defers jury service to the vacation, the time served will count as sitting time for the purposes of calculating compensatory leave.
It is normally inappropriate for a juror to have any special knowledge of any person involved in the trial. This applies primarily to witnesses and defendants, but may also apply to knowledge of the judge and legal representatives involved in the trial. As a result, if a judge receives a summons to serve as a juror at his home court or a court where he usually sits, he may apply not to serve there as a juror. The first step for the jury summoning officer receiving such an application will be to look at whether the difficulty could be overcome by deferral, and if so whether the date of service could be deferred. If this would not rectify the difficulty the jury summoning officer will then consider whether the judge could undertake jury service at a different court. The normal rule is that a juror is not expected to travel more than one and a half hours from home in order to serve and it is not expected that members of the judiciary will be forced to exceed this in order to find an alternative court.
Where a judge attends a court for jury service and finds that he is a member of a jury panel where he is familiar with the judge presiding, a legal representative, the defendant or a potential witness he should raise the matter with the judge presiding, in the normal way through the jury bailiff or member of the court staff, if he considers his familiarity could interfere with his responsibilities as a juror. If the trial judge receives such a communication from the juror judge he should deal with the matter in exactly the same way as he would deal with the matter in the case of any other juror. The trial judge may consider it appropriate to show the note to counsel and seek assistance as to the appropriate course of action. It will not normally be a good reason for a judge not to serve on a jury where he knows the jury bailiff or other court staff.
It is a matter of discretion for an individual judge sitting on a jury whether he should disclose the fact of his judicial office to fellow members of the jury. Whilst it may not be appropriate to volunteer such information immediately, either to fellow members of the jury or to the judge presiding in the case, it is neither necessary nor appropriate to conceal this fact. It is for each jury to decide who to elect as foreman, but judges should have in mind that judges who serve as jurors should expect to be treated as equal members of the jury and should not be accorded any special status on account of their judicial office.
The duty of all jurors is to comply with the jury oath and give a true verdict according to the evidence. Judges who serve as jurors should be mindful of the fact that jurors play a different role in the trial from the judge. All jurors must follow directions given to the jury as to the law. Judges should avoid the temptation to correct guidance they perceive to be inaccurate as this is outside the scope of their role as jurors. They should also have in mind the fact that they have not been party to all the legal argument and may not therefore have all the information available as to the correct legal position. In common with all jurors, judges may however, ask the judge presiding any relevant question through a jury note in the normal way. Nothing in this guidance detracts from the ability of judges sitting as jurors to bring their general knowledge of life to bear on the deliberations of the jury.
The Lord Chief Justice of England and Wales
Observations for judges on being called for jury service
Lord Chief Justice letter to the Judiciary
Dear Judge,
You will be aware that section 321 of the Criminal Justice Act 2003 came into force on 5 April 2004. The effect of section 321 is to bring into effect schedule 33 which removes the entitlement to be excused from jury service, as of right for a number of people. Judges are amongst the categories of people who are no longer entitled to be excused from jury service, as of right.
The purpose of this letter is to give some guidance to judges who are called for jury service. Both judges conducting trials and judges summoned should bear its contents in mind. This is an initial view. It is not binding on trial judges if and when issues arise as a result of a member of the judiciary being on a jury.
When a judge serves on a jury he does so as part of his duty as a private citizen. It is not appropriate for me to issue guidance as to how a private citizen should conduct his or herself in a jury room. Nevertheless, I am aware that many members of the judiciary are anxious about what to do if they find themselves on a jury and I offer the following observations of my own in the hope that they will be of some assistance.
The initial point is that judges are expected to comply with the law. If judges are called for jury service they should undertake this duty, unless they can demonstrate 'good reason' as to why they should not serve as summoned. Section 9 Juries Act 1974 provides that if any person who has been summoned to attend as a juror shows to the satisfaction of the summoning officer that there is good cause why they should be excused from attending, the summoning officer may excuse that person. A more common course of action is for the summoning officer to allow a deferral of the date on which a juror has to attend for jury service under section 9A Juries Act 1974.
The Lord Chancellor has issued guidance to the Jury Central Summoning Bureau when considering deferral applications and applications to be excused and I enclose a copy of this guidance. This guidance makes clear that only in extreme circumstances, will a person be excused from jury service. Paragraph 18 deals specifically with applications made by members of the judiciary. It states that members of the judiciary or those involved in the administration of justice who apply for excusal or deferral on grounds that they may be known to a party or parties involved in the trial should normally be deferred or moved to an alternative court where the grounds for exclusion may not exist. If this is not possible, then they should be excused.
A judge should make an application for deferral where he has significant judicial commitments which would make it particularly inconvenient for him to do jury service at the time he was called to do so. I would only expect judicial commitments to be a reason for deferral where, if there was no deferral, there could be a significant interference with the administration of justice. An example of where such an application may be appropriate would be where the judge is involved in a heavy trial, which had been fixed for some time and where the judge had conducted pre-hearings such as PII applications. Involvement in a case with custody time limits implications may also be a 'good reason' for deferral. Whenever a judge is summoned for jury service at a time when he would otherwise be sitting as a judge he should at once consult with his Presiding Judge (or in the case of a High Court Judge his Head of Division) before deciding whether to seek deferral because of the existence of significant judicial commitments.
However, in the absence of special circumstances, the fact that a judge has sat as a juror in a court should not be regarded as disentitling him from sitting in that court or any other appellate court in future, providing that he does not hear the case on which he sat as a juror or any connected case. Where a judge does sit as a juror he must thereafter have nothing more to do with the case or any connected case in his judicial capacity.
Where a judge serves as a juror the time served will count as sitting time for the purpose of calculating the annual sitting requirement. If the judge is a High Court judge or above and he defers jury service to the vacation, the time served will count as sitting time for the purposes of calculating compensatory leave.
It is normally inappropriate for a juror to have any special knowledge of any person involved in the trial. This applies primarily to witnesses and defendants, but may also apply to knowledge of the judge and legal representatives involved in the trial. As a result, if a judge receives a summons to serve as a juror at his home court or a court where he usually sits, he may apply not to serve there as a juror. The first step for the jury summoning officer receiving such an application will be to look at whether the difficulty could be overcome by deferral, and if so whether the date of service could be deferred. If this would not rectify the difficulty the jury summoning officer will then consider whether the judge could undertake jury service at a different court. The normal rule is that a juror is not expected to travel more than one and a half hours from home in order to serve and it is not expected that members of the judiciary will be forced to exceed this in order to find an alternative court.
Where a judge attends a court for jury service and finds that he is a member of a jury panel where he is familiar with the judge presiding, a legal representative, the defendant or a potential witness he should raise the matter with the judge presiding, in the normal way through the jury bailiff or member of the court staff, if he considers his familiarity could interfere with his responsibilities as a juror. If the trial judge receives such a communication from the juror judge he should deal with the matter in exactly the same way as he would deal with the matter in the case of any other juror. The trial judge may consider it appropriate to show the note to counsel and seek assistance as to the appropriate course of action. It will not normally be a good reason for a judge not to serve on a jury where he knows the jury bailiff or other court staff.
It is a matter of discretion for an individual judge sitting on a jury whether he should disclose the fact of his judicial office to fellow members of the jury. Whilst it may not be appropriate to volunteer such information immediately, either to fellow members of the jury or to the judge presiding in the case, it is neither necessary nor appropriate to conceal this fact. It is for each jury to decide who to elect as foreman, but judges should have in mind that judges who serve as jurors should expect to be treated as equal members of the jury and should not be accorded any special status on account of their judicial office.
The duty of all jurors is to comply with the jury oath and give a true verdict according to the evidence. Judges who serve as jurors should be mindful of the fact that jurors play a different role in the trial from the judge. All jurors must follow directions given to the jury as to the law. Judges should avoid the temptation to correct guidance they perceive to be inaccurate as this is outside the scope of their role as jurors. They should also have in mind the fact that they have not been party to all the legal argument and may not therefore have all the information available as to the correct legal position. In common with all jurors, judges may however, ask the judge presiding any relevant question through a jury note in the normal way. Nothing in this guidance detracts from the ability of judges sitting as jurors to bring their general knowledge of life to bear on the deliberations of the jury.
The Lord Chief Justice of England and Wales
How come this backbench MP also sits on the bench as a judge?
How come this backbench MP also sits on the bench as a judge?
Stephen Phillips, QC, MP, is the Member of Parliament for the Sleaford and North Hykeham Constituency.
He is also known as Recorder Stephen Phillips, QC.
Courts Act 1971
21 Appointment of Recorders.
(1)Her Majesty may from time to time appoint qualified persons, to be known as Recorders, to act as part-time judges of the Crown Court and to carry out such other judicial functions as may be conferred on them under this or any other enactment.
(2)Every appointment of a person to be a Recorder shall be of a person recommended to Her Majesty by the Lord Chancellor, and no person shall be qualified to be appointed a Recorder unless [F34he has a 10 year Crown Court or 10 year county court qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990].
(3)The appointment of a person as a Recorder shall specify the term for which he is appointed and the frequency and duration of the occasions during that term on which he will be required to be available to undertake the duties of a Recorder.
(4)Subject to subsection (5) below the Lord Chancellor may, with the agreement of the Recorder concerned, from time to time extend for such period as he thinks appropriate the term for which a Recorder is appointed.
(5)Neither the initial term for which a Recorder is appointed nor any extension of that term under subsection (4) above shall be such as to continue his appointment as a Recorder after [F35the day on which he attains the age of seventy, but this subsection is subject to section 26(4) to (6) of the Judicial Pensions and Retirement Act 1993 (Lord Chancellor’s power to authorise continuance in office up to the age of 75).].
(6)The Lord Chancellor may if he thinks fit terminate the appointment of a Recorder on the ground of incapacity or misbehaviour or of a failure to comply with any requirement specified under subsection (3) above in the terms of his appointment.
(7)There shall be paid to Recorders out of money provided by Parliament such remuneration and allowances as the Lord Chancellor may, with the approval of the Minister for the Civil Service, determine.
According to Wikipedia...
"Since 1971, a system of part-time appointments has been in place in England and Wales, designed to give experience of judicial office to those not yet ready to take a full time appointment. It is now the practice to require all full time appointees to have had some part time judicial experience. The part-time appointees were initially designated as "Assistant Recorders", with a view to promotion to full "Recorders". The position of Assistant Recorder no longer exists, and all appointments are made as "Recorders".
Appointments are made by the Crown by Royal Warrant, on the recommendation of the Lord Chancellor. Since 2006, however, the Lord Chancellor's recommendations are based upon an independent appointments process supervised by the Judicial Appointments Commission.
In the Courts of England and Wales, a Recorder is a barrister or solicitor. Recorders were originally required to be of at least 10 years' standing, though that requirement has been reduced in recent years to 7 years' standing. Recorders are appointed by the Queen on the advice of the Lord Chancellor to hold part-time judicial office. A Recorder acting as such has all the powers of a Circuit judge and may sit in the Crown Court or in the County Court. If appointed to do so under section 9(1) of the Supreme Court Act 1981, a Recorder may sit as a part time High Court Judge".
House of Commons Disqualification Act 1975
SCHEDULE 1
Offices disqualifying for membership
Part I
Judicial offices
[F10Judge of the Supreme Court.]
Judge of the High Court of Justice or Court of Appeal.
[F11Judge of the Court of Session, or Temporary Judge appointed under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.]
Judge of the High Court of Justice or Court of Appeal in Northern Ireland.
[F12Judge of the Court Martial Appeal Court.]
Chairman of the Scottish Land Court.
Circuit Judge.
Sheriff Principal or Sheriff (other than Honorary Sheriff) appointed under the M6Sheriff Courts (Scotland) Act 1907, or Temporary Sheriff Principal or [F13part-time sheriff] appointed under the M7Sheriff Courts (Scotland) Act 1971.
County Court Judge or deputy County Court Judge in Northern Ireland.
[F14District Judge (Magistrates’ Courts) (but not Deputy District Judge (Magistrates’ Courts)).]
[F15District judge (magistrates' courts), or deputy district judge (magistrates' courts), in Northern Ireland.]
Stipendiary Magistrate in Scotland.
F16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[F18Chief or other Child Support Commissioner for Northern Ireland [F19or deputy Child Support Commissioner for Northern Ireland].]
Chief or other Social Security Commissioner [F20(not including a deputy Commissioner)].
[F21Chief or other Social Security Commissioner for Northern Ireland [F22or deputy Social Security Commissioner for Northern Ireland].]
F23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[F25Adjudicator to Her Majesty’s Land Registry.]
It would appear from the House of Commons Disqualification Act 1975 that Recorder Stephen Phillips, QC, is not disqualified from also sitting as an MP. I have no idea why a Recorder, who is a member of the Judiciary, is not disqualified. Recorders exercise the same powers as Circuit Judges and they are disqualified. Recorders can sit as a High Court Judge if requested to do so by or on behalf of the Lord Chancellor, and yet High Court Judges are also disqualified from sitting as MPs.
UPDATE:
1. Keep judges out of politics, MPs told
“Either you are on the Bench, or you are in active politics, but you cannot do both.”
2. Should the judges or MPs make the laws?
Gary Slapper on why judges and politicians are at odds over who makes the law
3. The Judiciary - Constitutional position
Judges (except for district judges and Recorders) may not sit as MPs.
4. It would appear that Humfrey Malins was also a Recorder and MP at the same time.
5. Ministry of Justice
RECORDERS
Policy, Procedure & Terms and Conditions of Service
Conflict of Interest
Fee-paid judicial office holders are expected to refrain from any activity, political or otherwise, which would conflict with their judicial office or be seen to compromise their impartiality, having regard for example to the comments of the Court of Appeal in the case of Locabail. A Recorder who is an MP, Parliamentary candidate or local Councillor should not sit as a Recorder within their own constituency or the area covered by the Council. They should also be aware of the risk of a perceived lack of impartiality arising from published articles or public pronouncements, etc. (Timmins v Gormley [(2000) 2 WLR 870]). Fee-paid judicial office holders should exercise caution in any reference to their appointment on, for example, letterheads or in chambers advertising literature. Fee-paid office holders hold office only when they are serving judicially and should not use their appointment as a means of pursuing personal, professional or commercial advantage.
6. (see p.11)Membership of the House of Commons has also been an issue of controversy, whilst a serving full-time judge is barred from sitting in the House of Commons (s 1 when read in conjunction with sch 1 House of Commons Disqualification Act 1975) no such bar exists for part-time members of the judiciary.
Stephen Phillips, QC, MP, is the Member of Parliament for the Sleaford and North Hykeham Constituency.
He is also known as Recorder Stephen Phillips, QC.
Courts Act 1971
21 Appointment of Recorders.
(1)Her Majesty may from time to time appoint qualified persons, to be known as Recorders, to act as part-time judges of the Crown Court and to carry out such other judicial functions as may be conferred on them under this or any other enactment.
(2)Every appointment of a person to be a Recorder shall be of a person recommended to Her Majesty by the Lord Chancellor, and no person shall be qualified to be appointed a Recorder unless [F34he has a 10 year Crown Court or 10 year county court qualification, within the meaning of section 71 of the Courts and Legal Services Act 1990].
(3)The appointment of a person as a Recorder shall specify the term for which he is appointed and the frequency and duration of the occasions during that term on which he will be required to be available to undertake the duties of a Recorder.
(4)Subject to subsection (5) below the Lord Chancellor may, with the agreement of the Recorder concerned, from time to time extend for such period as he thinks appropriate the term for which a Recorder is appointed.
(5)Neither the initial term for which a Recorder is appointed nor any extension of that term under subsection (4) above shall be such as to continue his appointment as a Recorder after [F35the day on which he attains the age of seventy, but this subsection is subject to section 26(4) to (6) of the Judicial Pensions and Retirement Act 1993 (Lord Chancellor’s power to authorise continuance in office up to the age of 75).].
(6)The Lord Chancellor may if he thinks fit terminate the appointment of a Recorder on the ground of incapacity or misbehaviour or of a failure to comply with any requirement specified under subsection (3) above in the terms of his appointment.
(7)There shall be paid to Recorders out of money provided by Parliament such remuneration and allowances as the Lord Chancellor may, with the approval of the Minister for the Civil Service, determine.
According to Wikipedia...
"Since 1971, a system of part-time appointments has been in place in England and Wales, designed to give experience of judicial office to those not yet ready to take a full time appointment. It is now the practice to require all full time appointees to have had some part time judicial experience. The part-time appointees were initially designated as "Assistant Recorders", with a view to promotion to full "Recorders". The position of Assistant Recorder no longer exists, and all appointments are made as "Recorders".
Appointments are made by the Crown by Royal Warrant, on the recommendation of the Lord Chancellor. Since 2006, however, the Lord Chancellor's recommendations are based upon an independent appointments process supervised by the Judicial Appointments Commission.
In the Courts of England and Wales, a Recorder is a barrister or solicitor. Recorders were originally required to be of at least 10 years' standing, though that requirement has been reduced in recent years to 7 years' standing. Recorders are appointed by the Queen on the advice of the Lord Chancellor to hold part-time judicial office. A Recorder acting as such has all the powers of a Circuit judge and may sit in the Crown Court or in the County Court. If appointed to do so under section 9(1) of the Supreme Court Act 1981, a Recorder may sit as a part time High Court Judge".
House of Commons Disqualification Act 1975
SCHEDULE 1
Offices disqualifying for membership
Part I
Judicial offices
[F10Judge of the Supreme Court.]
Judge of the High Court of Justice or Court of Appeal.
[F11Judge of the Court of Session, or Temporary Judge appointed under the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990.]
Judge of the High Court of Justice or Court of Appeal in Northern Ireland.
[F12Judge of the Court Martial Appeal Court.]
Chairman of the Scottish Land Court.
Circuit Judge.
Sheriff Principal or Sheriff (other than Honorary Sheriff) appointed under the M6Sheriff Courts (Scotland) Act 1907, or Temporary Sheriff Principal or [F13part-time sheriff] appointed under the M7Sheriff Courts (Scotland) Act 1971.
County Court Judge or deputy County Court Judge in Northern Ireland.
[F14District Judge (Magistrates’ Courts) (but not Deputy District Judge (Magistrates’ Courts)).]
[F15District judge (magistrates' courts), or deputy district judge (magistrates' courts), in Northern Ireland.]
Stipendiary Magistrate in Scotland.
F16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F17. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[F18Chief or other Child Support Commissioner for Northern Ireland [F19or deputy Child Support Commissioner for Northern Ireland].]
Chief or other Social Security Commissioner [F20(not including a deputy Commissioner)].
[F21Chief or other Social Security Commissioner for Northern Ireland [F22or deputy Social Security Commissioner for Northern Ireland].]
F23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[F25Adjudicator to Her Majesty’s Land Registry.]
It would appear from the House of Commons Disqualification Act 1975 that Recorder Stephen Phillips, QC, is not disqualified from also sitting as an MP. I have no idea why a Recorder, who is a member of the Judiciary, is not disqualified. Recorders exercise the same powers as Circuit Judges and they are disqualified. Recorders can sit as a High Court Judge if requested to do so by or on behalf of the Lord Chancellor, and yet High Court Judges are also disqualified from sitting as MPs.
UPDATE:
1. Keep judges out of politics, MPs told
“Either you are on the Bench, or you are in active politics, but you cannot do both.”
2. Should the judges or MPs make the laws?
Gary Slapper on why judges and politicians are at odds over who makes the law
3. The Judiciary - Constitutional position
Judges (except for district judges and Recorders) may not sit as MPs.
4. It would appear that Humfrey Malins was also a Recorder and MP at the same time.
5. Ministry of Justice
RECORDERS
Policy, Procedure & Terms and Conditions of Service
Conflict of Interest
Fee-paid judicial office holders are expected to refrain from any activity, political or otherwise, which would conflict with their judicial office or be seen to compromise their impartiality, having regard for example to the comments of the Court of Appeal in the case of Locabail. A Recorder who is an MP, Parliamentary candidate or local Councillor should not sit as a Recorder within their own constituency or the area covered by the Council. They should also be aware of the risk of a perceived lack of impartiality arising from published articles or public pronouncements, etc. (Timmins v Gormley [(2000) 2 WLR 870]). Fee-paid judicial office holders should exercise caution in any reference to their appointment on, for example, letterheads or in chambers advertising literature. Fee-paid office holders hold office only when they are serving judicially and should not use their appointment as a means of pursuing personal, professional or commercial advantage.
6. (see p.11)Membership of the House of Commons has also been an issue of controversy, whilst a serving full-time judge is barred from sitting in the House of Commons (s 1 when read in conjunction with sch 1 House of Commons Disqualification Act 1975) no such bar exists for part-time members of the judiciary.
Oink, oink, Elliot Morley pleads guilty!
Oink, oink, Elliot Morley pleads guilty!
MPs' expenses: former minister Elliot Morley pleads guilty to dishonestly claiming £32,000
The former environment minister Elliot Morley has pleaded guilty to fiddling his parliamentary expenses.
The ex-Labour MP dishonestly claimed mortgage payments worth £32,000.
Morley is the first former minister to face jail over the MPs' expenses scandal which rocked Westminster.
He pocketed £16,800 in claims on a phantom mortgage and £15,200 after inflating the amount he was previously paying.
Just days before he was due to go on trial, Morley entered two guilty pleas for false accounting over claims made against his home in Winterton, near Scunthorpe, Lincs, between 2004 and 2007.
MPs' expenses: former minister Elliot Morley pleads guilty to dishonestly claiming £32,000
The former environment minister Elliot Morley has pleaded guilty to fiddling his parliamentary expenses.
The ex-Labour MP dishonestly claimed mortgage payments worth £32,000.
Morley is the first former minister to face jail over the MPs' expenses scandal which rocked Westminster.
He pocketed £16,800 in claims on a phantom mortgage and £15,200 after inflating the amount he was previously paying.
Just days before he was due to go on trial, Morley entered two guilty pleas for false accounting over claims made against his home in Winterton, near Scunthorpe, Lincs, between 2004 and 2007.
Shepton Mallet prisoner found dead in cell
Shepton Mallet prisoner found dead in cell
A 40-year-old man who was serving a life sentence for attempted murder was found dead in his cell at Shepton Mallet Prison, it has emerged.
Prison officers found Michael Ransdell hanged in his cell, early on Sunday morning.
It is understood he was not on suicide watch.
A Prison Service spokesman said: "As with all deaths in custody, the Prisons and Probation Ombudsman will conduct an investigation."
A 40-year-old man who was serving a life sentence for attempted murder was found dead in his cell at Shepton Mallet Prison, it has emerged.
Prison officers found Michael Ransdell hanged in his cell, early on Sunday morning.
It is understood he was not on suicide watch.
A Prison Service spokesman said: "As with all deaths in custody, the Prisons and Probation Ombudsman will conduct an investigation."
Sentencing plans 'would not reflect severity of crimes'
Sentencing plans 'would not reflect severity of crimes'
Planned reforms to sentencing policy could lead to criminals spending too little time behind bars, according to several top judges.
Lord Justice Thomas and Lord Justice Goldring said halving sentences for those who plead guilty early would not reflect the "seriousness of offences".
It could also result in innocent people being jailed, they warned.
The Ministry of Justice said the plans aimed to "break the cycle of crime by reforming criminals".
Planned reforms to sentencing policy could lead to criminals spending too little time behind bars, according to several top judges.
Lord Justice Thomas and Lord Justice Goldring said halving sentences for those who plead guilty early would not reflect the "seriousness of offences".
It could also result in innocent people being jailed, they warned.
The Ministry of Justice said the plans aimed to "break the cycle of crime by reforming criminals".
Wednesday, April 06, 2011
Why do MPs lie?
Why do MPs lie?
It's against the rules of the House to use unparliamentary language. For example, they refer to each other as the honourable or right honourable member. It is unparliamentary language to call a member dishonourable, even if that member fiddles his or her expenses out of the taxpayer's purse. We would call that a dishonourable thing to do and say that the member was dishonourable. Another example, is that it is unparliamentary language to call a member a liar. Even if it can be shown, for example, that David Davis has misled Parliament with a Backbench Business Committee motion on prisoners votes. If someone deliberately misleads we call that person a liar.
It's against the rules of the House to use unparliamentary language. For example, they refer to each other as the honourable or right honourable member. It is unparliamentary language to call a member dishonourable, even if that member fiddles his or her expenses out of the taxpayer's purse. We would call that a dishonourable thing to do and say that the member was dishonourable. Another example, is that it is unparliamentary language to call a member a liar. Even if it can be shown, for example, that David Davis has misled Parliament with a Backbench Business Committee motion on prisoners votes. If someone deliberately misleads we call that person a liar.
Roll up, roll up get your 20 year old news story here!
Roll up, roll up get your 20 year old news story here!
The Daily Mail steals a story from The Sun, shock, horror, inmates given duvets!
I had one of those in 1990...
It sure takes a long time for news to get out from inside!
Dear Daily Mail, I liked the photo. However, I have not seen a double bed in a prison cell during my 35 years inside!
The Daily Mail steals a story from The Sun, shock, horror, inmates given duvets!
I had one of those in 1990...
It sure takes a long time for news to get out from inside!
Dear Daily Mail, I liked the photo. However, I have not seen a double bed in a prison cell during my 35 years inside!
Denise Fergus, James Bulger's mum, in unprovoked attack upon Robert Thompson
Denise Fergus, James Bulger's mum, in unprovoked attack upon Robert Thompson
Battleaxe Denise Fergus
Here we go again with Denise Fergus giving attention to what Robert Thompson is doing and then moaning about him getting attention! It was tragic what happened to Jamie Bulger. However, being angry, bitter and twisted for the rest of her life will only add to and not lessen her pain. I am aware that she will be feeling guilty for leaving Jamie unattended for long enough for him to be kidnapped and murdered. But, hounding Robert Thompson along with The Sun will not bring Jamie back and is an invasion of Robert Thompson's Article 8 human right to privacy and family life.
Battleaxe Denise FergusHere we go again with Denise Fergus giving attention to what Robert Thompson is doing and then moaning about him getting attention! It was tragic what happened to Jamie Bulger. However, being angry, bitter and twisted for the rest of her life will only add to and not lessen her pain. I am aware that she will be feeling guilty for leaving Jamie unattended for long enough for him to be kidnapped and murdered. But, hounding Robert Thompson along with The Sun will not bring Jamie back and is an invasion of Robert Thompson's Article 8 human right to privacy and family life.
Advert for Jamie Oliver's Dream School
Advert for Jamie Oliver's Dream School
Watch me and Cherie Booth QC tonight 9pm on Ch4.
Here's one I prepared earlier.
Watch me and Cherie Booth QC tonight 9pm on Ch4.
Here's one I prepared earlier.
Will the ECtHR allow itself to be corrupted by the UK?
Will the ECtHR allow itself to be corrupted by the UK?
"Many international organizations, including the United Nations, are accused of lacking democratic accountability". The Council of Europe is guilty in this respect. However, the Commissioner for Human Rights, Thomas Hammarberg, observes that "The European Union, for example, realised that its own institutions needed a mechanism for complaints. The European Ombudsman, elected by the European Parliament, was set up precisely to deal with complaints from citizens concerning maladministration by EU institutions and bodies. Moreover, the European Court of Justice in Luxembourg is empowered to review claims from the Council of the European Union, the European Commission, the European Parliament and member states regarding the illegality of EU acts. Individuals may also challenge decisions addressed to them".
The 2007 Global Accountability Report Accountability Profile states that "The Council of Europe does not make any commitments regarding the handling of external complaints, nor does it have any management systems to support or oversee the handling of external complaints. Furthermore, no mechanism exists that enables external stakeholders to lodge complaints regarding organisational policies".
Now that the CJEU has acceded to the Convention, and given the Council of Europe's lack of democratic accountability, perhaps complaints could be heard before this court?
The Council of Europe's website states
"Our objectives
The primary aim of the Council of Europe is to create a common democratic and legal area throughout the whole of the continent, ensuring respect for its fundamental values: human rights, democracy and the rule of law".
I intend to focus on just one area
"Execution of Judgments of the European Court of Human Rights
Respect of the European Convention for the Protection of Human Rights and Fundamental Freedoms and, in particular, of the European Court of Human Rights's judgments, is a crucial element of the Council of Europe's system for the protection of human rights, rule of law and democracy and, hence, for democratic stability and European unification".
From the Supervision of the execution of judgments 2009 3rd annual report Council of Europe Committee of Ministers of the European Court of Human Rights
"Remarks by the Director General of Human Rights and Legal Affairs
Introduction
1. The paramount importance of the swift and efficient execution of the judgments of the European Court of Human Rights (“the ECtHR”) has been rightly underscored once more by the high-level conference on the future of the ECtHR organised by the Swiss Chairmanship of the Committee of Ministers, held in Interlaken on 18-19 February.
2. The annual report is one of the tools adopted by the Committee of Ministers to improve overall understanding of the execution process and, hence, improve the process itself. It performs this function effectively notably by providing national governments with concrete examples of what is expected from them to comply fully with the requirements of a judgment of the ECtHR. The report also seems to have facilitated exchanges of information between governments and parliaments on the situation regarding the execution of judgments (encouraged in particular by Committee of Ministers Recommendation (2008)2 – the outstanding examples to date being the United Kingdom and the Netherlands1)".
Between 1959-2010 the ECtHR has found the Netherlands guilty in 73 cases, whereas the UK has been found guilty in 271 cases.
There are at least two definitions of outstanding
1. Superior to others of its kind; distinguished.
2. Still in existence; not settled or resolved; a long outstanding problem.
Hirst v UK (No2) is still outstanding after 5 years! Given this record, it beggars belief that the Committee of Ministers can praise the UK as being an outstanding example. The current chairmanship of the Committee of Ministers is held by Turkey; with 2245 convictions for human rights violatons! The UK is set to become Chairman in November 2011.
In relation to my case, Urszula Gacek, Polish Ambassador to the Committee of Ministers, exposes the corruption within the CoM and explains why human rights abuses continue to go on unchecked.
As Urszula Gacek predicted, the CoM abdicated responsibility by kicking the ball into touch...
"Decision
The Deputies,
1. recalled that, in the present judgment, delivered on 6 October 2005, the Court found that the general, automatic and indiscriminate restriction on the right of convicted prisoners in custody to vote, fell outside any acceptable margin of appreciation and was incompatible with Article 3 of Protocol No. 1 to the Convention;
2. recalled that at the Deputies' 1100th meeting (November - December 2010), the United Kingdom authorities confirmed that they would present draft legislation in the near future, and noted that they remained committed to implementing the judgment;
3. noted the consideration of the issues raised in the judgment by Parliament on 11 January 2011 and 10 February 2011, as referred to by the United Kingdom authorities in their submission to the Committee (see DD(2011)139);
4. noted further that on 22 February 2011 the United Kingdom government requested a referral to the Grand Chamber of the pilot judgment Greens and M.T. which reiterates the conclusions in Hirst No. 2 and establishes a timetable for the United Kingdom authorities to propose legislation in order to execute both judgments;
5. decided, in light of the above, to resume consideration of the questions raised by the judgment once the referral request has been considered".
Notwithstanding that I believe the CoM has acted improperly, and that having read the UK's weak submissions to the Grand Chamber in Greens and MT v UK, I fear that the Court may allow its pure conscience of Europe to get tainted by the corruption from the UK and the CoM and allow the application. The reason being the Grand Chamber's complete reversal of the Chamber decision in Lautsi v Italy. The only difference being with mine is that if the UK succeeded it would be the Grand Chamber reversing another Grand Chamber decision.
"Many international organizations, including the United Nations, are accused of lacking democratic accountability". The Council of Europe is guilty in this respect. However, the Commissioner for Human Rights, Thomas Hammarberg, observes that "The European Union, for example, realised that its own institutions needed a mechanism for complaints. The European Ombudsman, elected by the European Parliament, was set up precisely to deal with complaints from citizens concerning maladministration by EU institutions and bodies. Moreover, the European Court of Justice in Luxembourg is empowered to review claims from the Council of the European Union, the European Commission, the European Parliament and member states regarding the illegality of EU acts. Individuals may also challenge decisions addressed to them".
The 2007 Global Accountability Report Accountability Profile states that "The Council of Europe does not make any commitments regarding the handling of external complaints, nor does it have any management systems to support or oversee the handling of external complaints. Furthermore, no mechanism exists that enables external stakeholders to lodge complaints regarding organisational policies".
Now that the CJEU has acceded to the Convention, and given the Council of Europe's lack of democratic accountability, perhaps complaints could be heard before this court?
The Council of Europe's website states
"Our objectives
The primary aim of the Council of Europe is to create a common democratic and legal area throughout the whole of the continent, ensuring respect for its fundamental values: human rights, democracy and the rule of law".
I intend to focus on just one area
"Execution of Judgments of the European Court of Human Rights
Respect of the European Convention for the Protection of Human Rights and Fundamental Freedoms and, in particular, of the European Court of Human Rights's judgments, is a crucial element of the Council of Europe's system for the protection of human rights, rule of law and democracy and, hence, for democratic stability and European unification".
From the Supervision of the execution of judgments 2009 3rd annual report Council of Europe Committee of Ministers of the European Court of Human Rights
"Remarks by the Director General of Human Rights and Legal Affairs
Introduction
1. The paramount importance of the swift and efficient execution of the judgments of the European Court of Human Rights (“the ECtHR”) has been rightly underscored once more by the high-level conference on the future of the ECtHR organised by the Swiss Chairmanship of the Committee of Ministers, held in Interlaken on 18-19 February.
2. The annual report is one of the tools adopted by the Committee of Ministers to improve overall understanding of the execution process and, hence, improve the process itself. It performs this function effectively notably by providing national governments with concrete examples of what is expected from them to comply fully with the requirements of a judgment of the ECtHR. The report also seems to have facilitated exchanges of information between governments and parliaments on the situation regarding the execution of judgments (encouraged in particular by Committee of Ministers Recommendation (2008)2 – the outstanding examples to date being the United Kingdom and the Netherlands1)".
Between 1959-2010 the ECtHR has found the Netherlands guilty in 73 cases, whereas the UK has been found guilty in 271 cases.
There are at least two definitions of outstanding
1. Superior to others of its kind; distinguished.
2. Still in existence; not settled or resolved; a long outstanding problem.
Hirst v UK (No2) is still outstanding after 5 years! Given this record, it beggars belief that the Committee of Ministers can praise the UK as being an outstanding example. The current chairmanship of the Committee of Ministers is held by Turkey; with 2245 convictions for human rights violatons! The UK is set to become Chairman in November 2011.
In relation to my case, Urszula Gacek, Polish Ambassador to the Committee of Ministers, exposes the corruption within the CoM and explains why human rights abuses continue to go on unchecked.
As Urszula Gacek predicted, the CoM abdicated responsibility by kicking the ball into touch...
"Decision
The Deputies,
1. recalled that, in the present judgment, delivered on 6 October 2005, the Court found that the general, automatic and indiscriminate restriction on the right of convicted prisoners in custody to vote, fell outside any acceptable margin of appreciation and was incompatible with Article 3 of Protocol No. 1 to the Convention;
2. recalled that at the Deputies' 1100th meeting (November - December 2010), the United Kingdom authorities confirmed that they would present draft legislation in the near future, and noted that they remained committed to implementing the judgment;
3. noted the consideration of the issues raised in the judgment by Parliament on 11 January 2011 and 10 February 2011, as referred to by the United Kingdom authorities in their submission to the Committee (see DD(2011)139);
4. noted further that on 22 February 2011 the United Kingdom government requested a referral to the Grand Chamber of the pilot judgment Greens and M.T. which reiterates the conclusions in Hirst No. 2 and establishes a timetable for the United Kingdom authorities to propose legislation in order to execute both judgments;
5. decided, in light of the above, to resume consideration of the questions raised by the judgment once the referral request has been considered".
Notwithstanding that I believe the CoM has acted improperly, and that having read the UK's weak submissions to the Grand Chamber in Greens and MT v UK, I fear that the Court may allow its pure conscience of Europe to get tainted by the corruption from the UK and the CoM and allow the application. The reason being the Grand Chamber's complete reversal of the Chamber decision in Lautsi v Italy. The only difference being with mine is that if the UK succeeded it would be the Grand Chamber reversing another Grand Chamber decision.
Tuesday, April 05, 2011
MoJ and MoD in conspiracy to cover up torture!
MoJ and MoD in conspiracy to cover up torture!
MoD lobbied secretly to cut legal aid for cases against its treatment of detainees in Iraq and Afghanistan
High court told recently imposed controls on judicial review funding would have prevented courts hearing torture allegations
The high court has heard there was no candid disclosure of the real reasons for cutting legal aid funding for cases questioning the treatment of detainees in Iraq and Afghanistan. Photograph: John Moore/Getty Images
The Ministry of Defence lobbied behind closed doors to restrict the provision of legal aid to claimants questioning the treatment of military detainees in Iraq and Afghanistan, the high court has heard.
At a hearing challenging changes to legal aid made last year, Tim Otty QC said tighter controls on funding judicial reviews now imposed by the Ministry of Justice would have prevented courts hearing torture allegations and the creation of extra safeguards to protect suspects.
Repeated representations by the former defence minister, Bob Ainsworth, to the Ministry of Justice during 2008 and 2009 were not disclosed during a public consultation exercise on changing legal aid entitlements, he said.
The changes came at a time when the government was suffering successive political embarrassments over claims that al-Qaida suspects had been subjected to torture overseas while being questioned by the intelligence services.
There was "no candid disclosure" of the real reasons for restricting funding and the process was therefore "legally flawed", Otty added. "The Ministry of Justice treated the MoD's concerns as central to its approach."
In one email sent in June 2009, the high court heard, "there was an express indication that the MoJ 'supported' the concerns raised" and would act on them speedily.
"The genesis for these [changes to legal aid] rest solely in concerns expressed by the MoD … and in terms of the cost burdens from judicial reviews relating to Afghanistan and Iraq."
The MoD was particularly concerned about a judicial review brought by one claimant, Maya Evans, who had no direct personal involvement in the treatment of detainees. The new legal aid rules introduced following the Ministry of Justice's consultation process specified that funding would only be provided to claimants who might receive "real benefits", personally or for the environment. Tuesday's challenge has been brought on her behalf.
The MoD insists that the new provisions introduced by the Legal Services Commission do not prevent judicial reviews being taken by claimants who are personally affected.
Sam Grodzinski, counsel for the MoD, argued that there was no general obligation for public bodies to disclose to those being consulted the arguments submitted by other groups or to explain why it started any review of policy.
The UK's obligation to prohibit torture, he said, did not require public funding of cases where "extra-territorial torture by third country authorities is alleged and where the claim is brought by a person wholly unconnected to the individuals said to be at risk of torture".
Judgment is expected to be reserved.
MoD lobbied secretly to cut legal aid for cases against its treatment of detainees in Iraq and Afghanistan
High court told recently imposed controls on judicial review funding would have prevented courts hearing torture allegations
The high court has heard there was no candid disclosure of the real reasons for cutting legal aid funding for cases questioning the treatment of detainees in Iraq and Afghanistan. Photograph: John Moore/Getty ImagesThe Ministry of Defence lobbied behind closed doors to restrict the provision of legal aid to claimants questioning the treatment of military detainees in Iraq and Afghanistan, the high court has heard.
At a hearing challenging changes to legal aid made last year, Tim Otty QC said tighter controls on funding judicial reviews now imposed by the Ministry of Justice would have prevented courts hearing torture allegations and the creation of extra safeguards to protect suspects.
Repeated representations by the former defence minister, Bob Ainsworth, to the Ministry of Justice during 2008 and 2009 were not disclosed during a public consultation exercise on changing legal aid entitlements, he said.
The changes came at a time when the government was suffering successive political embarrassments over claims that al-Qaida suspects had been subjected to torture overseas while being questioned by the intelligence services.
There was "no candid disclosure" of the real reasons for restricting funding and the process was therefore "legally flawed", Otty added. "The Ministry of Justice treated the MoD's concerns as central to its approach."
In one email sent in June 2009, the high court heard, "there was an express indication that the MoJ 'supported' the concerns raised" and would act on them speedily.
"The genesis for these [changes to legal aid] rest solely in concerns expressed by the MoD … and in terms of the cost burdens from judicial reviews relating to Afghanistan and Iraq."
The MoD was particularly concerned about a judicial review brought by one claimant, Maya Evans, who had no direct personal involvement in the treatment of detainees. The new legal aid rules introduced following the Ministry of Justice's consultation process specified that funding would only be provided to claimants who might receive "real benefits", personally or for the environment. Tuesday's challenge has been brought on her behalf.
The MoD insists that the new provisions introduced by the Legal Services Commission do not prevent judicial reviews being taken by claimants who are personally affected.
Sam Grodzinski, counsel for the MoD, argued that there was no general obligation for public bodies to disclose to those being consulted the arguments submitted by other groups or to explain why it started any review of policy.
The UK's obligation to prohibit torture, he said, did not require public funding of cases where "extra-territorial torture by third country authorities is alleged and where the claim is brought by a person wholly unconnected to the individuals said to be at risk of torture".
Judgment is expected to be reserved.
Tory MP Philip Hollobone accused of elephant cruelty
Tory MP Philip Hollobone accused of elephant cruelty
According to Mr Philip Hollobone (Kettering) (Con) "it is my job as a humble Back Bencher to stand up and to speak up for my constituents, whose view is that this country should not give prisoners the right to vote, and is my job to hold the Government to account on that".
I would be surprised if he had bothered to canvass all 81,844 constituents for their view on the issue. And even more surprised if they all held the same view...
"If I asked my constituents whether prisoners should be given the right to vote, the vast majority would say that they should not".
So, now he's a bleeding mind reader speaking out for them on what he thinks they would say!
According to Mr Philip Hollobone (Kettering) (Con) "it is my job as a humble Back Bencher to stand up and to speak up for my constituents, whose view is that this country should not give prisoners the right to vote, and is my job to hold the Government to account on that".
I would be surprised if he had bothered to canvass all 81,844 constituents for their view on the issue. And even more surprised if they all held the same view...
"If I asked my constituents whether prisoners should be given the right to vote, the vast majority would say that they should not".
So, now he's a bleeding mind reader speaking out for them on what he thinks they would say!
Three endangered owlets hatched at Cambridgeshire zoo
Three endangered owlets hatched at Cambridgeshire zoo
Three chicks from an endangered breed of owl, believed to be extinct in the wild in its home territory, have hatched at a Cambridgeshire zoo.
Linton Zoo are hand rearing the three Turkmenian Eagle owlets.
Kim Simmons, zoo manager, said staff had had to take them from their mother to give them a chance of survival.
"They hatched in mid March but were rejected by their inexperienced mother and so were removed for hand-rearing but will rapidly grow," she said.
"They should weigh in at around a kilo each by the time they are three weeks old.
"The Turkmenian eagle owl is one of the largest in the world and is closely related to the European eagle owl.
"Sadly it is believed to now be extinct in its original wild range around Turkmenistan," she said.
Three chicks from an endangered breed of owl, believed to be extinct in the wild in its home territory, have hatched at a Cambridgeshire zoo.
Linton Zoo are hand rearing the three Turkmenian Eagle owlets.
Kim Simmons, zoo manager, said staff had had to take them from their mother to give them a chance of survival.
"They hatched in mid March but were rejected by their inexperienced mother and so were removed for hand-rearing but will rapidly grow," she said.
"They should weigh in at around a kilo each by the time they are three weeks old.
"The Turkmenian eagle owl is one of the largest in the world and is closely related to the European eagle owl.
"Sadly it is believed to now be extinct in its original wild range around Turkmenistan," she said.
Monday, April 04, 2011
Coalition’s 'rehabilitation revolution’ is not fit for purpose
Coalition’s 'rehabilitation revolution’ is not fit for purpose
When a wheel turns full circle what occurs is a revolution. Reading Christian Guy's piece on ConservativeHome, the Coalition’s ‘rehabilitation revolution’ reminds me of the workhouse from the 16th century. Guy states: "As part of this ‘revolution’ prisons will finally become places of purposeful and realistic work – prisoners should go to bed tired at the end of each day like the hard working taxpayer does. And the wages they earn should help to compensate victims".
The wheel is a great invention. It can either roll forward or backwards. It would appear that the Tory led Coalition talks about going forward, but this Tory policy appears instead to be geared up to rolling backwards.
Under the right circumstances, I would favour the idea of prisoners being given purposeful and realistic work. If such work could be found for them then at the very least they should be paid the National Minimum Wage. Better still, a 'living wage'. However, I do not favour the idea of a Victim's Tax being levied upon prisoners to compensate victims because this, like denial of the franchise, amounts to an additional punishment.
ConservativeHome states "Christian Guy is Co-author of Locked Up Potential, a prison reform report published by the Centre for Social Justice". There are at least 10 other Co-authors of this report. The task force was chaired by the disgraced ex-Tory Minister Jonathan Aitken. Whilst it may not be a bad thing, per se, for the Tory party to welcome back into the fold one of its black sheep. Nevertheless, it is questionable why it is thought that Aitken's 7 months in custody makes him some sort of an expert on prison rehabilitation? It appears to have the smell about it of jobs for the boys!
Another Co-author of the report is disgraced former Director of Rye Hill Prison, Stuart Mitson, who was also a member of the task force. Aitken recommended that the next Government uses the Mitson Academy Model prison. Quite apart from the obvious bias of the Chair recommending the proposal of a panel member, it is clear that Mitson stole the blueprints of the Carling Unit at Rye Hill Prison and passed them off as his own design.
Erwin James is another Co-author of the report. Whilst I acknowledge he has a lot more prison experience that Aitken, I cannot get over the admission made by James in The Fear Factory film that he used to attack fellow prisoners for the benefit of prison officers and the system.
Our prisons do need reform and there is a need for genuine rehabilitation of prisoners. However, as I have outlined above, it is doubtful that the Tory led Coalition is fit for purpose.
When a wheel turns full circle what occurs is a revolution. Reading Christian Guy's piece on ConservativeHome, the Coalition’s ‘rehabilitation revolution’ reminds me of the workhouse from the 16th century. Guy states: "As part of this ‘revolution’ prisons will finally become places of purposeful and realistic work – prisoners should go to bed tired at the end of each day like the hard working taxpayer does. And the wages they earn should help to compensate victims".
The wheel is a great invention. It can either roll forward or backwards. It would appear that the Tory led Coalition talks about going forward, but this Tory policy appears instead to be geared up to rolling backwards.
Under the right circumstances, I would favour the idea of prisoners being given purposeful and realistic work. If such work could be found for them then at the very least they should be paid the National Minimum Wage. Better still, a 'living wage'. However, I do not favour the idea of a Victim's Tax being levied upon prisoners to compensate victims because this, like denial of the franchise, amounts to an additional punishment.
ConservativeHome states "Christian Guy is Co-author of Locked Up Potential, a prison reform report published by the Centre for Social Justice". There are at least 10 other Co-authors of this report. The task force was chaired by the disgraced ex-Tory Minister Jonathan Aitken. Whilst it may not be a bad thing, per se, for the Tory party to welcome back into the fold one of its black sheep. Nevertheless, it is questionable why it is thought that Aitken's 7 months in custody makes him some sort of an expert on prison rehabilitation? It appears to have the smell about it of jobs for the boys!
Another Co-author of the report is disgraced former Director of Rye Hill Prison, Stuart Mitson, who was also a member of the task force. Aitken recommended that the next Government uses the Mitson Academy Model prison. Quite apart from the obvious bias of the Chair recommending the proposal of a panel member, it is clear that Mitson stole the blueprints of the Carling Unit at Rye Hill Prison and passed them off as his own design.
Erwin James is another Co-author of the report. Whilst I acknowledge he has a lot more prison experience that Aitken, I cannot get over the admission made by James in The Fear Factory film that he used to attack fellow prisoners for the benefit of prison officers and the system.
Our prisons do need reform and there is a need for genuine rehabilitation of prisoners. However, as I have outlined above, it is doubtful that the Tory led Coalition is fit for purpose.
Sunday, April 03, 2011
Are John Alderton and Pauline Collins the neighbours from hell?
Are John Alderton and Pauline Collins the neighbours from hell?
It comes to something when you cannot do what you want with your own land and property because of interfering neighbours claiming that it will interfere with their pleasure! In any event, I suspect that the grumpy old couple will only have a short victory because there is a good case for appeal or simply change the plans a bit.
It comes to something when you cannot do what you want with your own land and property because of interfering neighbours claiming that it will interfere with their pleasure! In any event, I suspect that the grumpy old couple will only have a short victory because there is a good case for appeal or simply change the plans a bit.
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