Tuesday, November 02, 2010

Prisoner Votes: confusion all round

There seems to be a great wodge of confusion about the issue of prisoners votes. The fact that the Government is acting after a series of European Court of Human Rights judgements makes this a Council of Europe issue . But given that the last Government was able to chuck the issue into the long grass tells us that it did not feel bound by those decisions.

I have here to applaud John Hirst the Jailhouse Lawyer - his long campaign, often lonely and filled with vitriol, and abuse from both sides has born fruit. I disagree with him utterly, but I salute his hard work and perserverance. The decision by David Cameron to bow to the demands of the European Courts is all down to his hard work. A lesson there in the power of one man to change the world.

As far as I can see, and the legal advice is not available so we just have to take the Governments word for it, but it looks like HMG has decided that as in the post Lisbon world, as the European Charter of Fundamental Rights is now apended to the Lisbon Treaty, decisions by the Court (ECHR) are now justicable. Therefore it was left with nowhere to wriggle. Britain would be find and would have to pay huge compensation to the 70,000 prisoners denied a vote. We cannot tell without seeing the legal advice given to the Government, but that seems to me to be the only serious explanation.

Nosemonkey has his doubts, and in his defence he sent me this. It is the
A guide to the Treaty of Lisbon
produced by the Law Society.

It goes into some depth about the way in which Council of Europe ECHR judgements and the whole architecture of ECHR (Convention) will apply to the UK in a post Lisbon world.

It starts out by making it clear, that things are not clear,
The Charter of Fundamental Rights becomes a fundamental part of EU law, although the UK has reserved its position (see chapter 3).
So what of this position?
A Protocol on the application of the Charter of Fundamental Rights of the European Union to Poland and to the UK has been agreed.
This states that ‘the Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the UK, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the UK are inconsistent with the fundamental rights, freedoms and principles that it reaffirms’.
This specific position appears to suggest that the Charter has been interpreted as introducing new rights. Arguably, this move was not necessary, as the Charter does not create new general rights under national law, and only applies when national governments are implementing EU law.
Exactly how this Protocol will work in practice remains to be seen.
Ah, now there is the rub, "Remains to be seen". We don't know, as it will rely on the application of law over time, not on what pre-exists. The law hasn't been tested.

Lets have a look at that clarification,
Accession to the ECHR will mean that the EU and its institutions will be accountable to the European Court of Human Rights for issues concerning the ECHR, in the same way that the UK currently is in relation to domestic matters where ECHR issues arise. In other words, the EU institutions would be directly subject to the ECHR and the European Courts would be able to directly apply the ECHR as part of EU law. This means that if a lawyer wished to raise arguments before the European Courts, based directly on the rights set out in the ECHR, or to the provisions of the treaties themselves, this will be possible.
Following accession to the ECHR (provided for by the Treaty), the EU will be required to accede to the ECHR. EU law will then have to be interpreted in the light of the ECHR, not only as a general principle of EU law but as a Convention directly applicable to the EU and to which the EU adheres. Nevertheless, the Treaty of Lisbon and its Protocols do state that accession to the ECHR will not affect the EU’s competences and that provision will be made for preserving the specific characteristics of the EU and EU law.
Well to my untrained eyeds it does look as if decisions of the ECHR (Court) based on the ECHR (Convention) will be usable in ECJ cases. But only in specific areas. And what are those areas?
The Treaty sets out the citizens’ rights which were agreed under the Maastricht Treaty. Citizenship is a key principle. All EU nationals are citizens of the EU and the Treaty recognises the importance of the rights that flow from that status. These citizens’ rights include:
• The right to move and reside freely within the territory of EU countries;
• The right to stand and vote in elections to the European Parliament and at municipal elections in the country in which an EU citizen resides (even if this is not the home state);
• The right of access to documents; and
• The right to diplomatic and consular protection.
So from the position of the Law Society, I would say that the ECHR (Court and Convention) does have the capacity to have an impact on National and EU law when it comes to voting rights.

And remind me what we are talking about here. Oh yes, the right or otherwise of prisoners to vote.

Thus this is now an EU matter rather than merely an CoE matter. Can anybody prove differently?


Anonymous said...

I think your logic would only extend to voting in *European Parliament* elections. I can't see that the EU has any competence to comment on national voting systems and I can't see that the Lisbon Treaty and the application of the ECHR to EU institutions would change that.

The Boiling Frog said...

@GT have a look this paper: Accession of the EU to the ECHR: Who Would Be Responsible in


It gives a good account of the anomalies of jurisdiction

Gawain Towler said...

Waiting for a resdponse from HMG on their legal advice. Either they want to do it and are using the EU/ECHR as an excuse (possible) or they don't and their hands are forced

Ron said...

There are several things directly and indirectly relevant here:

a) The EU Court has been taking account of ECtHR judgements for a while already (and vice versa) because all EU members are also ECHR members, so there is not much change in this regard post-Nice.

b) The fact that the EU will at some point join the European Convention on Human Rights will make the EU institutions bound to this convention, i.e. making it possible to go against the EU for human rights infringements without widening the legal rights of the EU itself.

c) The fact that the EU will join the ECHR is independent of the EU's Charta of Fundamental Rights because joining the ECHR is prescribed by an ordinary article of the EU Treaty, namely Art. 6.2 TFEU.

d) The EU has not yet joined the European Convention on Human Rights because the legal process of joining is pretty tricky, so anything happening in this regard in the UK has nothing to do with this, at least not directly.


Prisoners can vote,but teachers with nationalist sympathies can be arbitrarily sacked?how is it that criminals have human rights and teachers who are "politically unreliable"(to use a stalinist phrase)have none?The only question left is,shall we all meekly succumb to this treason,or go out in a blaze of violence opposing it.