Votes for Prisoners: Parliament, not the Courts, is the supreme maker of Law in Britain

On 10 February, the House of Commons is due to vote on a government proposal to give votes to prisoners in Britain’s gaols.  By all accounts many, possibly a majority of MPs, are opposed to this measure which will still have to be approved by the unelected House of Lords.

Apparently the Prime Minister was “sick to the stomach” when he received legal advice that at the behest of the European Court of Human Rights (HCHR) a law giving at least some prisoners the vote (those serving fewer than 4 years has been mooted) would have to be enacted in order to avoid up to £100 million of compensation being awarded by British courts to prisoners claiming breach of their human rights.

British people opposed to prisoner votes

The latest YouGov poll shows that 60% of British people are opposed to any prisoners getting the vote, no matter how short their sentence.  Only about 5% thought those serving less than 4 years should be allowed to vote.

Most British people appear to have reacted with total amazement that a foreign court consisting of 46 judges from such long established paragons of human rights as Russia, Moldova, the Ukraine, Albania, Azerbaijan, and micro-states like Liechtenstein, Andorra, and San Marino, all of whom nominate, like Britain, one of their citizens as a judge, can sit in judgement on British affairs.  The British nominators include a Labour trades unionist with no legal training and a Conservative appointee, who while he has had legal training, is not known to have actually practised law since 1972.  This then is the extraordinary assortment of countries and people who are telling Britain how to run its affairs in this, one of the most sensitive areas of national life.  Britain’s own Privy Council was within living memory the Supreme Court for a quarter of the human race in the British Empire.

For most British people, the most extraordinary thing in this whole miserable affair is how and why it has come about.  How is it, as John of Gaunt expresses it in Richard II:

  • “That England that was wont to conquer others,
  • hath made a shameful conquest of itself”?

Leaving the Convention

The only thing to do to extricate us from this mess is to withdraw from the European Convention of Human Rights forthwith and repeal at least section 3 (1) of the 1998 Human Rights Act, which obliges British judges to interpret human rights cases in conformity with their interpretation of the Convention.  More generally a new Act of Supremacy needs to bar British judges from invoking the provisions of any foreign statute or treaty which has not been incorporated explicitly into British Law by Parliament.

No requirement to leave the EU

During the vote, MPs will doubtless be told what Jeremy Paxman on BBC2’s Newsnight (7 February) allowed to be conveyed by a lawyer, Ben Emerson QC, that leaving the Convention would, under the Lisbon Treaty, mean leaving the European Union.  A similar opinion was expressed recently by Alex Singleton, assistant editor, in the Daily Telegraph of November 29 2010.

UK Derogations in Lisbon Treaty

This is absolutely not true.  One of the most useful things which the Blair-Brown governments did during the Lisbon Treaty negotiations was to insert an opt-out for the United Kingdom from those articles in the Treaty which could impinge on the UK’s administration of justice and the right to run its own legal affairs, in the following unambiguous terms in protocol 30, articles 1 and 2 of the Lisbon Treaty and protocol 1 (section 1) of the attached Charter of Fundamental Rights (which presumably Emerson and Singleton had in mind) as follows:

            The European Court of Justice (at Luxembourg) and the domestic courts of the UK (and Poland actually) are precluded from finding that “laws, regulations, or administrative provisions introduced in these (protocol) countries are inconsistent with the Charter of Fundamental Rights”.

There are no other references to Human Rights, fundamental or otherwise, in the Lisbon Treaty.

The phrasing in the Protocols is deliberate: to prevent British judges from doing what they have done and are still doing – extending European law to Britain against the will of Parliament, the most outrageous instance being their setting aside the Merchant Shipping Act 1989 (passed ‘nem con’ by both Houses of Parliament) on the spurious grounds that it was inconsistent with the European Communities Act 1972 (section 2).

There are many pressing reasons for Britain to redraw its relationship with the European Union, but the clear wish of the British people to remove themselves from the jurisdiction of the European Court of Human Rights in Strasbourg (direct, and indirect through the British Courts) is not one of them.

No need to fear compensation claims

Every MP voting on Thursday night (10 February) should be aware of this.  Despite the fears of Ken Clarke (the Justice Minister) no compensation claims can possibly flow from a decision to reject prisoner votes: the will of the British people as expressed in Parliament in this and all matters pertaining to the law, its administration, and any derivative regulation is as the Lisbon opt-out protocols quoted above reiterate, absolute.  In the light of their past decisions where anything connected with “Europe” and “human rights” are concerned, the judges too need urgently to be reminded of this as Lord Hoffman, himself a former Law Lord, has recently indicated.

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