Europe v UK

A report from the frontline

The UK not only lost the legal battle, Hirst v UK(No2) the Prisoners Votes Case, but
it also looks like they will lose the war too. Under the rules of engagement, the UK
agreed to surrender sovereignty in relation to the Convention, the Court and Council
of Europe. In other words, the UK is not playing at home but away. Europe’s playing
field is level. It’s their ball, rules, and referee. It’s a team game, play by the rules or
get sent off. Simples.

Once the Court finds a country guilty of a human rights violation, the case is passed to
the Committee of Ministers to supervise execution of the judgment. The judgment is
divided into individual and general measures. Not only must the country cease the
human rights violation in the individual case, but it also must ensure that as a general
measure nobody else suffers the same human rights violation. Whereas the UK was
only guilty of a single human rights violation, since the General Election and no
general measures taken, that figure has gone up to 75,000 human rights violations.

Between 1-3 June the CoM is considering, along with other cases, what to do about
the UK’s continued violation of the Convention and failure to comply with the Hirst v
UK(No2) judgment. The Labour government saw the CoM as a toothless watchdog.
So, did nothing for 5 years. Tomorrow, William Hague, Foreign Secretary, will be
leading the Charge of the Light Brigade. However, the watchdog has now got itself a
set of sharp dentures. Or, if you like, the big guns are coming out. Extra powers come
into play via the Lisbon Treaty, in particular Protocol 14. It is worth bearing in mind
that as Russia has recently ratified this, it removes the cover which the UK was
shielding behind and has left the UK rather more exposed than one should be going
into battle.

The new powers came into force today. This means that Rule 11 ‘infringement
proceedings’ can be invoked against the UK, if the CoM decides to proceed along
these lines the Member State gets 6 months notice of this intention. However, the
CoM can use its discretion and not give 6 months notice. In submissions to the CoM,
it has been argued that the UK has delayed compliance for 5 years and does not
deserve any more time. Particularly, as another General Election maybe called at
anytime. Given that it will already cost the taxpayers £75m in compensation claims by
convicted prisoners denied the franchise on 6 May 2010, in these hard economic times
it makes no sense to double that figure.

The internet is full of comments stating that the Council of Europe and the European
Union are two separate institutions. However, under the Lisbon Treaty the EU
acceded to the Convention. This means that when it is an issue of human rights, in
effect, the two institutions combine to form one. It is Empire building. Nevertheless,
for a human rights defender this is more power to the elbow. The ECtHR and Council
of Europe, and ECJ and EU working in harmony. All of this was agreed, signed
sealed and delivered, at the Interlaken Conference in February. The Member States all
had to re-affirm their commitments to abide by the Convention and Court decisions.
The UK was warned by the CoM in March that all prisoners must get the vote before
the General Election, or else…
On 8 April 2010, in Frodl v Austria, the Court reaffirmed it’s decision in Hirst v
UK(No2). Under the Hirst test, applying the principles of Democracy, Rule of Law
and Human Rights, all convicted prisoners must get the vote. For the Sun and Daily
Mail and Daily Express readers, this means murderers, rapists and paedophiles will
get the vote, along with all the others. Therefore it is irrelevant what the nature of the
crime is or length of sentence. The exception to the rule being, for example, someone
convicted of electoral fraud because this goes to the heart of the democratic process
and there is a discernable link between crime and punishment. On 20 May 2010 the
Court in Kiss v Hungary ruled that even those with mental disabilities are entitled to
vote. Therefore, those patients in places like Broadmoor and Rampton and Ashworth
will be taking over the asylum. That just leaves hereditary peers disenfranchised in
this country.

Quite apart from the Committee of Ministers getting new powers to deal with rogue or
pariah states, once a case reaches the 5 year stage without compliance by a Member
State the CoM raises the stakes. For example, David Cameron recently trumpeted that
he would use the UK’s vote to veto financial aid in the Eurozone. What if the CoM
said, “No vote for the UK unless prisoners get the vote”? Or, “The UK is suspended
from both the Council of Europe and EU”? The UK may even face expulsion. As a
rogue or pariah state, none of the other 46 Member States in the Council of Europe
and other 25 Member States in the EU will have trade links with the UK.

A careful study of prisoners’ rights shows that the courts favoured the prisoners’
claims when a constitutional point was in issue and the Judiciary felt that its
independence was being threatened by either the Executive or Parliament. Similarly,
at the Interlaken Conference the Court and CoM felt that their authority was being
challenged. Therefore, they have to rise to meet the challenge or get out of town.
Other Member States are watching for signs of weakness. Some commentators have
already drawn comparisons with Belarus being suspended whereas the UK has so far
been allowed to get away with it. The CoM will have felt this barb, and it is expected
that the UK will face the ultimatum, fully comply or else leave Europe.