Parliament Takes on Judicial Activism

European Court of Human Rights
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European Court of Human Rights

Next week the British House of Commons will be voting on the following motion:

That this House notes the ruling of the European Court of Human Rights in Hirst v the United Kingdom in which it held that there had been no substantive debate by members of the legislature on the continued justification for maintaining a general restriction on the right of prisoners to vote; acknowledges the treaty obligations of the UK; is of the opinion that legislative decisions of this nature should be a matter for democratically elected lawmakers; and supports the current situation in which no sentenced prisoner is able to vote except those imprisoned for contempt, default or on remand.”

Behind the ornate wording of the motion is political dynamite.

John Hirst was a convicted ax murderer who was sentenced to prison in Britain in 1979 and committed other acts of violence while in prison, eventually serving 25 years in all. In prison after further violent assaults, he exchanged his penchant for violence for launching lawsuits against the prison service. One of these lawsuits landed in the European Court of Human Rights. That court ruled in 2005, that Britain’s blanket prohibition on voting by prisoners was illegal under the 1950 European Convention of Human Rights to which Britain adhered. The ban on prisoner voting is part of a British election law passed by Parliament in 1983 that merely reaffirmed existing practice.

The British government ignored the ruling, but now the ax murderer has been joined by a convicted rapist who is petitioning the courts to give effect to its ruling. British law firms were convinced that there was gold in the British prison system and have been signing up prisoners to be represented in compensation suits for deprivation of rights, with the proviso that they would pay legal fees only upon winning their suits.

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The British government was alarmed by the prospect of court rulings that could cost the treasury in excess of £160 million  in the current hard times . Therefore, the Justice Minister Kenneth Clarke came up with the idea of allowing prisoners serving a four-year sentence or less the right to vote.

“I wish to get out of this with the minimum damage and I think there’s a certain amount of over-excitement surrounding it. I would have left things as they were. We shall do the minimum that we have to to comply with judgements against us.”

Prime Minister David Cameron claimed that he was sick about the ideam but he was willing to go along with his justice minister. Clarke, who is considered a very capable person, is also one of the most pro-European members of the British conservative party, that on the whole is very Eurosceptic.

David Davis, who lost out to David Cameron in the fight for the Conservative leadership and was not included in the cabinet, sought a parliamentary debate. He was joined by former Labour Home Secretary Jack Straw, who obviously saw an opportunity to embarrass Cameron and perhaps drive a wedge between the Conservatives and the Liberal Democrats.

Cameron, aware of the sentiments in his party, has announced that he will allow members to vote their conscience on the motion. Judging by current sentiment in the British Parliament, it is all but certain that the motion will carry on the votes of both conservative and Labour MPs, thus pitting Parliament against the court. Clarke has warned that this will result in the major payout for the prisoners and Parliament has to respect the rule of law and the implications of Britain’s adherence to the European Human Rights Convention.

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The Convention and the European Court of Human Rights are not in particular favor in the UK.  A report by Lord Carlile claims that the rulings of the European Court of Human Rights have made “the UK a safe haven for some individuals whose determination is to damage the UK and its citizens.” In other words, because of the expansive interpretation of the right of asylum, Britain has had to allow potential terrorists to enter.

The United Kingdom sought to appeal by claiming that the ill-treatment that an asylum applicant could face in his home country should be weighed against the threat that he posed to British national security or that he should at least be forced to prove that ill-treatment in his country was “more likely than not”. Now Britain will only support people if they can produce an assurance from the particular country that endangers them, but this takes time and cannot stem the flood of asylum applicants.

Many MPs see this as a test case for those opposing judicial activism and for resisting the encroachment of Europe on British sovereignty.


Source material can be found at this site.

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