You are on page 1of 3

The Long Arm of the Law gets put in an arm lock

Mi Learned Friends over at UK Human Rights Blog have an interesting post “Repeal
of Human Rights Act would make no difference” by Adam Wagner. Whilst I agree
with both Lord Hope and Joshua Rozenberg to some extent, the Deputy President of
the Supreme Court and legal commentator are talking about and looking at the player
on the benches on the sideline, and not focusing on the game being played out on a
field away from Eton.

This is not a top down issue; rather it is a bottom up and inside out perspective which
provides the necessary if unwelcome insight.

It may be called a revolution. Every revolution in history started in prison, and this
one is no different. It began with a law breaker who reformed and became a law-
maker. Having reformed himself he set out on a campaign to reform the System. An
obstacle in the path was the absence of the European Convention being binding in
domestic law. The HRA improved this position somewhat, but the obvious
weaknesses are the absence of Articles 1 and 13. This position can be seen from
studying Hirst v UK (No2) and the UK’s refusal to fully comply with the Grand
Chamber judgment in 5 years.

The disgraced former Tory minister Jonathan Aitken was right when he wrote in the
Daily Telegraph that it was a dangerous hostage to fortune for Charles Falconer to
state on The World at One that the judgment does not mean that all prisoners would in
future get the right to vote. Under the Convention it is not for the Member State, the
losing party in the action, to interpret the judgment. As a consequence of the UK
misconstruing the judgment, it has gone from 1 prisoner suffering human rights abuse
to 75,000 prisoners suffering human rights abuse. That is quite a leap. Individual
petition means that the Court will now be swamped with many thousand prisoners’
applications. Tony Blair correctly identified that the Committee of Ministers was a
toothless watchdog. This position changed with the ratification of the Lisbon Treaty,
in particular, ratification of Protocol 14 which came into force on 1 June 2010. This
allows for Rule 11 ‘infringement proceedings’ to begin against a Member State. It is
the first time in the Convention history that it is being used against a Member State. It
is not what the UK thinks about the issue, but what matters is if two thirds of the
Council of Europe vote for it then the UK is heading for expulsion from both the
Council of Europe and European Union.

What is being conveniently forgotten by the UK is that the 3 arms of the State; the
Executive, Judiciary and Parliament, having lost the legal battle in the highest court in
Europe, are the hostages of the Association of Prisoners (set up under Article 11). The
losers do not dictate the terms of surrender. There is no room for negotiation because
the Council of Europe has clearly stated that a Member State must fully comply with
both the Convention and Court decisions. It is time that the White Flag of Surrender
flew outside Number 10 Downing Street.

In February, as part of the Interlaken process, the Interlaken Conference took place
and the Interlaken Declaration was signed by all 47 Member States of the Council of
Europe. They reaffirmed their commitments to abide by the Convention and Court
decisions. The Conference was about the future of the Court. It felt threatened by the
120,000 case load, and by Member States failure to abide by the Court’s decisions.
An issue was the repetitive applications from Member States where a violation had
already been found and not subsequently remedied at domestic level. Besides calling
into question the HRA not providing an effective remedy, there is the issue of a
systemic violation, for example, the separation of powers not working to provide the
necessary balances and checks against abuse of power. The rise from 1 violation to
75,000 is a serious systemic failure. Therefore, the Council of Europe gave itself new
powers to deal with rogue or pariah States like the UK. The Conference recommended
invoking the Treaty of London 1949 (Statute of the Council of Europe) to force
Member State’s compliance and greater use be made of the subsidiarity principle.
Both resolutions were adopted. It means that the UK is in deep political and legal
trouble come September when it once more appears before the Committee of
Ministers for execution of the Hirst judgment.

I suspect that the UK will try to bluster its way out of trouble and announce to the
Committee of Ministers that it intends to fully comply with the judgment all in good
time when the coalition gets around to instituting its Commission and wider
constitutional reforms. Like Lord Hope and Joshua Rozenberg, the UK fails to
appreciate the issue. A Member State is required to secure for all its citizens, prisoners
included, Human Rights, Democracy and Rule of Law otherwise it is an authoritarian
or totalitarian state which is what happened under the Nazi rule in Germany, and the
reason why the Council of Europe was founded to prevent this ever occurring again. It
is not being claimed that the UK is gassing prisoners; however, there are similarities
with dehumanizing prisoners with the view that they are less eligible than others to
human rights. This view totally goes against what Europe is all about. Submissions
will inform the Committee of Ministers that the Prisoners Votes Case must be treated
as a discrete issue. Whilst there is a need for wider constitutional reforms, the Venice
Commission and the Electoral Commission have both reported that Hirst v UK (No2)
is a simple case and all the UK has to do to fully comply is amend s.3 of RPA 1983.

The UK has maintained that it is a complex case. Nick Clegg has called it a legal
minefield. Elkan Abrahamson of Jackson Cantor LLP, solicitor for the case and the
Association of Prisoners disagrees. He states that it is a simple case. However, any
attempt to stray from the judgment is a legal minefield. Neither the Labour
administration nor the coalition has said what the difficulties are. It is time they
elaborated or do as they are told. The Council of Europe does not go back on a case
because the State has already had its say and lost in the Court. What is the issue now
is implementation, that is, play the game or get sent off. The accession to the
Convention by the EU under the Lisbon Treaty now means that both institutions have
come closer together in relation to Human Rights, Democracy and Rule of Law.
Given that the subsidiarity principle is a EU law, and that the ECJ can also get
involved, plus economic and political sanctions at the ready, the UK needs to realise
this is one hole it is not going to dig itself out of.

Besides destroying the UK’s doctrine of the separation of powers, the Hirst case, with
the subsidiarity principle, and the signing up to Human Rights as higher law at the
Interlaken Conference, by Baroness Scotland, means that the doctrine of the
supremacy of Parliament has also fallen in the battle. If this is not shock enough, it is
understood that a challenge is to be mounted claiming that the HRA is incompatible
with the Convention. There is no way that Europe will tolerate human rights being
dependent upon responsibilities. The Act needs to be amended to incorporate Articles
1 and 13 of the Convention. In addition s.6 needs to be amended so that it is
actionable if the Secretary of State for Justice fails to ensure that judgments from the
ECtHR are implemented, if necessary via Parliament. The Hirst case does not
expressly require but it may be implied that the UK’s unwritten constitution can be
assigned to history. What appears on the face of it to be a simple case has achieved
what Guy Fawkes failed to do. It is suspected that constitutional lawyers will have
advised the coalition and the previous Labour administration that there will be the
need for wider constitutional reforms. Labour did announce this and the coalition has
also announced it. Nobody has yet had the courage to admit that a prisoner has taken
the UK hostage, and that there is a heavy price to pay to be freed. Part of this cost
might be taking the editors of the Sun and Daily Mail to lunch every day between now
and September. Part of the problem the UK has is that it does not know how to tell the
media and the public the truth. For too long spin has been the order of the day. When
someone comes along and holds the truth, the whole truth, and nothing but the truth to
be the order of the day, lies hold no sway.