Tuesday, March 03, 2009

Are the Euro-Elections validity going to be legally challenged?

I don't beleive in prisoner voting rights, that said I do believe in the law however much of an arse it may be. John Hirst, aka JailhouseLaywer has long campaigned for the franchise to be extended to serving prisoners on human rights grounds, and infamously beat the UK Government in the Hirst vs United Kingdom case at the European Court of Human Rights in 2005.

That judgement, by 12 votes to five, recorded that the UK Government were in violation of Article 3, Protocol No. 1 (right to free elections) of the European Convention on Human Rights. Whether one likes the Human Rights Act or not (the legislation that enshrines the Convention in UK law), it is the law.

Now, since that time the Goevrnment have been holding "consultations" about how to do something about the judgement. Cynic or not the use of consultation, more than once it seems, is little more than a stalling tactic. Back in November it was reported that if the Government did not act swiftly then there could even be a challenge to the legality of the next General Election.

In fact, much of the talk on the issue until now has revolved around the next General Election being a sort of "deadline" for the Government to do something, but it appears that they may have actually miss a trick, and the Hirst judgement now has the Ministry of Justice by the proverbial short and curlies.

The problem is that in June there are European Parliament Elections, and the Government has already set a precedent by acting upon a judgement that it was in breach of of Article 3, Protocol No. 1 of the Convention. This happened after the Matthews vs United Kingdom judgement in 1999 that finally lead to citizens of Gibralter being given the right to vote by the UK government in European Elections.

There is therefore a potential for a legal challenge to the validty of the European Elections in the UK in June, and it appears that there is movement amongst the legal minds in the prison population to challenge the Government in the High Court if the latest issue of the prisoners newspaper, "Inside Time" is anything to go by.
Inside Time March 2009 WEB

It seems highly likely that the isue of prisoner franchise is going to become quite a political hot potato sooner than the Government might like. Now whatever one thinks of prisoner voting rights, and as I said I don't personally agree with it, the law as it stands syas that they must get the vote, and the European Election seem to be a time when they are likely to force the issue to the top of the news agenda.

The problem of course, and this is just a hunch, I doubt that public opinion will generally be in favour of such things. As such, I imagine many of the political parties will attempt to bury their heads in the sand on the issue.

From a purely political campaigning point of view though, if the issue does become a leading one, then the only people likely to gain will be UKIP as they will argue that a vote for them is a vote to stop Europe forcing these decision on the UK - even though of course this is a Council of Europe and not a European union issue.

Time will tell I guess, but I expect that prisoner franchise will be something in many of the papers in the coming months.


Gawain Towler said...

Whilst you are of course correct that this is a Council of Europe rather than EU issue, the fact that the European Convention is part of the Lisbon Treaty does rather conflate the two.

UKIP has plenty enougfh problem for us to argue against it as a fre standing thing, or, with the help of European judges a general, being told what to do by people who seem not to have our best interests at heart.

Indeed, I suspect you have hit the nail on the head. It is a bad law, but a law notheless.

Anna Raccoon said...

Those of us who remove ourselves voluntarily from British society, rather than at HM's pleasure, are also denied a vote. Nor do we acquire a vote in our new place of abode.
We are permanently disenfranchised.

Oooh! Dizzy! Firefox = just a coffee no croissant!

dizzy said...

Safari on Vista sounded wrong!

nick said...

If polling shows that prisoners are more likely to vote Labour, expect to see this railroaded through Parliament while nobody's looking.

Anonymous said...

that the govt has put itself into a position where a single prisoner could cause a constitutional crisis is shameful. Such a feeble response to a court judgement also puts them in a rather dodgy position when they next lecture criminals about respecting the law...

jailhouselawyer said...

Dizzy: Your opening sentence appears to have a contradiction. You say that you don't believe in prisoners voting rights, but that you do believe in the law.

If we start here:

"The European Convention on Human Rights

The Governments signatory hereto, being Members of the Council of Europe,

Considering the Universal Declaration of Human Rights proclaimed by the General Assembly of the United Nations on 10 December 1948;

Considering that this Declaration aims at securing the universal and effective recognition and observance of the Rights therein declared;

Considering that the aim of the Council of Europe is the achievement of greater unity between its Members and that one of the methods by which the aim is to be pursued is the maintenance and further realization of Human Rights and Fundamental Freedoms;

Reaffirming their profound belief in those Fundamental Freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend;

Being resolved, as the Governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law to take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration;

Have agreed as follows:

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention".

What this means is that we are talking about human rights of citizens, and the State's obligation to secure them. We have heard much recently from all 3 main parties about rights and responsibilities. Here citizens, albeit prisoners, claimed the human right to vote. The ECtHR ruled that the citizens were right and the State was wrong. The State has an obligation, responsibility, to remedy the breach of human rights. That is the law. In my view, a belief in the law, even if I question some judgments, is also a belief in human rights being available for all human beings. English courts have ruled that prisoners are still members of the public and citizens, part of society, albeit not at large. Whatever view are held on crime and criminals, prisons and prisoners, the law is right on this issue. That is why I believe in prisoners right to the vote.

It is worth pointing out that when the Court examined Article 3 of the First Protocol, and its own caselaw, the Court stated that not only must a Member State not merely refrain from putting obstacles in the path, eg, Ireland allowed prisoners the vote but did not facilitate and provisions for the right to be exercised, but that a Member State must be proactive in ensuring that the right can be exercised. Ireland has since allowed prisoners the postal vote.

Not only have the government lawyers and formerly DCA and now MoJ been negligent in understanding the full judgment in the Prisoners Votes Case, they have tried to deceive Parliament and mislead the public on the issue. Questions need to be asked in both the Houses WTF is going on?

I am more than happy to go to both Houses and explain the mess that the UK is in, why it is in such a mess, and how best to remedy the situation. I set the trap. I can release the UK from this but it comes at a price. "Ouch! This is going to hurt", I can hear some might say. I have been to prison dentists who have hurt me and to others who have not. Sometimes extraction is not as painful at is feared.

When the Suffragette Movement sought the vote for women, they adopted the motto "Deeds not words" in response to Parliament's wanting to talk about women and the vote rather than actually give them the vote. I found their struggle of great assistance in forming the legal challenge in Hirst v UK(No2), the Prisoners Votes Case. Our motto is similar "Action not words". It is history repeating itself. Those women MPs who do not support universal suffrage should now be holding their heads in shame. And reminding themselves, but for the Suffragette Movement suffering for them to get the franchise they wouldn't be MPs now! Yes, Diana Johnson, Labour MP for my constituency, I mean you too.

Lead by example. The Prison Rules require prisoners "to lead law-abiding lives in custody", and the policy goes further and adds "and upon their release". What example is it showing prisoners that it is acceptable to break the law, trample all over the rights of other humans? Let he who has not sinned cast the first stone. And those in greenhouses shouldn't throw stones.

It is not just the law which the government is bringing into disrepute, it is also our society as represented by those in Parliament supposedly acting in our names. They are not speaking for prisoners because they have no voice in parliament being denied the vote. In this respect the prisoners claim and stand on firm high moral ground. It is not a question of the lunatics taking over the asylum. Prisoners are not items to be warehoused. They are living human beings; someone's father; someone's mother; someone's son; someone's daughter; someone's brother or someone's sister. Not to mention the extended family, and friends. Treating them as less than human beings by removing their human rights, reflects back badly on wider society. Winston Churchill said: "The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country".

We have the Joint Committee on Human Rights to monitor and report on the government's response to the human rights of citizens. The last JCHR report is damning reading. They have warned that our constitution and democracy is lacking legitimacy. This leaves it open to challenge. Revolution, for example, or legal challenge. And because the UK is part of Europe, we have to get on with our neighbours. They are watching our every move. They are aware that to become and remain a Member of the EU, it requires Member States to abide by the European Convention and abide by the ECtHR decisions. This is not just a UK isssue, it's a European issue. As such, EU law comes into play. On such issues EU law overrides English law, that is, including Acts of Parliament. Part of the deal of joining was surrendering some Supremacy of Powers.

The government has been very tight lipped so far on what the Prisoners Votes Case really means. So have the Tories and LibDems. It might be worthwhile reminding the Tories what HMG in Opposition is meant to be doing? Try PMQs.

Dizzy Thinks: "The problem of course, and this is just a hunch, I doubt that public opinion will generally be in favour of such things. As such, I imagine many of the political parties will attempt to bury their heads in the sand on the issue".

Actually, research shows that public opinion is not as opposed as the Sun and Daily Mail claim, and of course we have the knee-jerk politicians coming out with their rent a gob soundbites. Duh! If they thought before speaking they could save themselves from looking stupid with egg on their faces. Besides, the Court said: "70. There is, therefore, no question that a prisoner forfeits his
Convention rights merely because of his status as a person detained
following conviction. Nor is there any place under the Convention system, where tolerance and broadmindedness are the acknowledged hallmarks of
democratic society, for automatic disenfranchisement based purely on what might offend public opinion".

Europe tends to favour Roman law. Under the Actio Popularis principle, mentioned in the Prisoners Votes Case, it means that the Court protects the rights of minorities within society against wider society and/or against the State. Whether it be gypsies, gays or prisoners. Victimisation should not and must not be tolerated. The Court declared that I was the victim in this case. Silence from the victim rights groups on this issue.

Harriet Harman recently said that she would ignore the judgments of the courts for the court of public opinion. Had she continued to follow the developments in prison law rather than pay so much attention to her own political ambitions, she would have seen the writing on the wall. I have nothing but contempt for a lawyer like Harriet Harman who has decided to treat the law and the courts with such contempt. Political suicide. Of course she should offer her resignation.

This is bigger than a poor Maggie-like impersonator.

Unless the government pulls its finger out on this issue, the taxpayers will face a legal bill in damages between £60 and 120M, for the EU election and General Election.

"Professor" John Hirst, who lectures on Prison Law Inside Out, is the undisputed leading authority on prison law in the UK. "A government of all talents" missing this talent appears to be a leg short in the bear pit of politics.

Jon Worth said...

Interesting analysis! Might add some spice to an otherwise dull election.

@Gawain - That's disingenuous. The Charter of Fundamental Rights might well guarantee the right to vote, but (1) the Treaty of Lisbon won't be ratified before the EP elections in June and, (2) I'm not sure how that would apply to UK election law anyway.

An additional issue would be that the Treaty of Lisbon gives the EU Single Legal Personality which means that the EU as a whole could sign the ECHR.

David Bouvier said...

While my gut instinct is also against prisoner voting, I think on balance it is OK on the assumption that (a) it is unlikely to significantly alter outcomes and (b) it provides a protection against future governments using it to disenfranchise voters (for example extending it to cover a period of community punishment for people convicted of political 'crimes'.)