Wednesday, May 23, 2012

Well Down To Standard

Today's Mail headline reads:

Contempt for our democracy: Overruling our Parliament, unelected European judges insist prisoners MUST get the vote


Ah yes, those unelected judges....could the Mail remind me when the next elections for the High Court Bench will take place? I might give it a go myself. Or perhaps I will have a go in the by-election for editor of the Daily Mail when Dacre slouches off with his millions.

56 comments:

  1. The ancient constitutional question, however, is whether, and, if so, then when, any unelected judge (even sitting in a British court) is empowered to over-rule Parliament: legality versus democracy. Meanwhile, the Cabinet thinks it can over-rule both, at least as far as publishing the risk assessment for the Health and Social Welfare Act 2012 is concerned !

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    1. The UK signed up to the Convention, and agreed to accept the authority of the Court.

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    2. Brian Ginnity23 May 2012 10:54

      A previous government signed up to the Convention. But there used to be other convention, that no parliament could bind its successors. So if this parliament, in line with the wishes of the people, votes against prisoners being given the vote, that should be the end of the matter until parliament changes its mind.

      Of course, this is bound up with old-fashioned ideas like parliamentary sovereignty. These ideas seem to be going down the pan these days. The act which took us into the common market states that EU law overrides British law where there is a conflict between the two.

      And I don't think Maxwell-Fyfe imagined the ECHR would be deliberating on this sort of issue. I think he would have told them to get stuffed. He was thinking of real human rights issues, such as concentration camps or state sponsored genocide.

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    3. And Parliament bassed the HRA.

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    4. If voting is not a human rights issue, what is? After all, Parliament can arbitrarily restrict the franchise or even abolish it altogether, which would make any claim to representing the people's will a complete farce. Have you forgotten the Long Parliament?

      Of course, this is bound up with old-fashioned ideas like parliamentary sovereignty.

      And none too soon.

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    5. Brian Ginnity23 May 2012 14:32

      If you can imagine the modern house of commons and the house of lords passing a bill to abolish the franchise, and the Queen actually signing the bill, you've got a better imagination than me.
      And if you don't agree with parliamentary sovereignty then we'll never agree.

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    6. Probably we won't agree. I'm a democrat, and I'm all for popularly elected assemblies. But as a student of history, I recognize that they can and do panic in times of stress, and it's good to have a long stop. For a long time the Lords served that function, but they no longer do, and the EHCR despite all its flaws is the best thing available now.

      Anyway, most of common law is judge-made law, including the sovereignty doctrine itself. What makes modern judges so ultra-respectful of Parliament escapes me altogether: Coke sang a different tune in his day.

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  2. By 'Democracy', the Daily Mail of course means that body of people which it believes it can influence by means of hysterical headlines.

    I must ask, Bystander - why do you continue to read it?

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    1. I like to know what the enemy is thinking.....

      Actually, since I was a student I have tried to keep up with the key bits of most papers every day, although I draw the line at the poor old Express these days.

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    2. Anonymous John23 May 2012 11:10

      Dreadful, isn't it?
      Front page 15th May. "Cold snap to last for a month"
      Front page 19th May. "Glorious summer is on way. Mini heatwave next week"

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    3. Brian Ginnity23 May 2012 11:34

      Ah - the evil Daily Mail. I suppose that since I read the Mail, I'm your enemy also. Will you tell me what is it you don't like about it.

      This is the paper that runs campaigns against ill-treatment of the elderly in our wonderful caring hospitals. It highlights injustices against the ordinary people of this country when they find their property stolen by squatters, or when landowners are terrorised by Irish Travellers. It highlights the injustice of pathetic sentences handed down to vicious criminal and the way the courts do nothing effective to protect people from lower level, but persistent offenders. Of course you don't like this paper.
      Of course, the "high-minded" Guardian doesn't care about any of this but I would bet a fiver that is your paper of choice.

      I would have thought a man of your intelligence would have understood the Mail point instead of having a cheap pop at the paper. These European judges are making new law. The judges on the High Court Bench you refer to interpret British law which has been passed and approved by our own legislature. If parliament doesn't agree with a British court's precedent, it can legislate against it. Under this present system, in theory there is no remedy against the ECHR. See the difference?

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    4. Now that I've posted this at 11:34, I've noticed the several typos in my long post. Apologies for this, I should have previewed the text first. Put it down to me being in a rush.

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    5. I forgive your typos - Te Absolvo.
      i) Mail readers are not my enemy. The Mail's dissimulation is.
      ii)I haven't got the bandwidth to answer what I don't like, but it is, at root, the callous manipulation of the ordinary treader by intelligent and educated journalists.
      iii) I have read the Times since I was sixteen, and I am currently a seven-day-a week subscriber. Please send my five pounds to Age UK.

      Your last paragraph is irrelevant. Are UK judges elected or not?

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    6. And now I have done a couple of typos just to prove that I am a fallible chap.

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    7. Brian Ginnity23 May 2012 16:17

      I will send the £5 to Age UK.

      I say that the Mail's intelligent and educated journalists speak up for the ordinary reader against the incredible folly of the "liberal" elite which now rules this country.

      My last paragraph was not irrelevant. The point is that these ECHR judges make new law, despite not being elected. There is no way to get rid of that new law. That is the complaint inherent in the Mail's headline. It is not implying that British judges are elected and no reasonable reading of the headline could interpret it that way.

      British judges do not make law - they interpret it. Their precedents can be legislated against if they don't suit the will of the people or parliament.

      That is the difference between the two sets of judges. I'm not the best writer in the world but I don't believe you don't understand the point I'm making. If you still don't get it then I will just have to put you down as somebody who wilfully misunderstands points of view he doesn't agree with.

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    8. If we ignore the ECHR on this one, then what, truly, is the punishment ? They don't own a prison. If they did it would only be acabinet member or some MPs that would be in contempt (banging them up might not be ba, actually...). The Cabinet ignores British jurisprudence, so why should European legal eagles be any more slavishly followed ?

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    9. Perhaps worst of all, Tony, would be the opprobrium of our European partners, who have long looked up to the way in which we have cleaved to the rule of law through good governments and bad. This isn't about slavish obedience to "legal eagles" (any more than it is in the field of say pharma regulation), but rather about respecting the principles we signed up to over 60 years ago. Nor BG is it about making new law. Rather, the judges have reaffirmed the basic principle that blanket prohibitions are contrary to the whole thrust of the Convention. The UK, it has again been confirmed, is free to choose how to ensure that that principle is applied, by whom (judges, say) and in what circumstances. What it cannot do is rule out entirely any possibility that the Convention right in question might apply in this specific circumstance. It was encouraging to hear the responsible Minister (Mark Harper) acknowledge in the Commons on Monday that the UK has no choice but to comply with the law. At last.

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    10. @Brian Ginnity:
      If you want to know why the Daily Mail is evil, read Ben Goldacres's excellent book, "Bad Science".
      And, yes, I suppose I am your enemy, because I don't believe in the sovereignty of parliament; I believe in the sovereignty of the people, not the self-serving dishonest rabble in Westminster. The real point is why you think a court in London should have more powers than one in Strasbourg. Are the ECHR judges not more well-versed in human rights than the ones an hour's time zone away? Or do you not approve of specialized judges?
      Try reading this, if it helps. http://www.guardian.co.uk/commentisfree/2011/jan/21/prisoners-right-to-vote

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    11. Anonymous #624 May 2012 09:09

      BG:

      Judges are not sovereign, and are not entitled to make new law.

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    12. I don't believe in the sovereignty of parliament; I believe in the sovereignty of the people

      Hear, hear.

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  3. Thanks for saying that, I was going to have to say it myself otherwise :-)

    I was disappointed by the BBC reporting this as-is, without your obvious rejoinder.

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  4. The democracy thing is a red herring. The real issue with the ECHR is the quality of its judges and its decision making. Perhaps not in this instance, though.

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  5. The difference is that we appoint home grown judges who I like to hope have a finger, however slightly, on the pulse of the nation. I am happy for them to sit in judgement on whether or not our prisoners should get the vote but not someone sitting in another country.

    If the situation was reversed and we had a court here deciding what should be done in Belgium, Germany, Greece, etc. I would be against that too. Let them make their own decisions.

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    1. Home grown? Yes, usually. Elected? No.

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    2. @"Anonymous" (Why can't people adopt user names? It would make referencing them so much easier.):
      It's this "them/us" attitude that is the root of the problem. You are too much chimpanzee and not enough bonobo. Lose the tribalism and join us in the 21st century.

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  6. The Daily Mail is a private concern and - until Leveson imports the Burmese model of freedom of expression (and it looks increasingly that like he will) - it is at liberty to say what it likes.

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    1. Yes and we can equally point out that it is full of nonsense.

      Someone above mentioned squatters. The irony there is that squatting residential premises has been a criminal offence for over 40 years. But misleading tabloid stories giving the impression that it isn't have probably made it less likely that the police will simply arrest the squatters.

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    2. You can opine that it is full of whatever you want but we'll make up our own minds as to whether it is nonsense or not.

      My understanding is that breaking and entering is a criminal matter but squatting (provided the property was accessed through an 'open door') is a civil matter.

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    3. Brian Ginnity23 May 2012 17:02

      What misleading tabloid stories - simply reporting the facts? It may or may not be illegal to squat private houses but too often police refuse to act. It's nonsense to blame the tabloids for this.

      Your post is highly misleading.

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    4. @Brian: Read the bogus science stories in the DM to see just how misleading tabloid stories are. Of course, you have to be scientifically literate to parse the farrago of nonsense correctly. Are you?

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    5. This has long been one of my favourite websites.

      http://www.anorak.co.uk/288298/scare-stories/the-daily-mails-list-of-things-that-give-you-cancer-from-a-to-z.html/

      It's The Daily Mail’s List Of Things That Give You Cancer: From A To Z.

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    6. Hi

      I notice nobody has made the point that Squatters are squatters because they have nowhere else to live?

      The solution is not to ban squatting but to make more affordable rent housing available to people and open more hostels for those with drug/alcohol dependency issues

      Criminalising people who just need a roof over their head is wrong headed.

      As for the ECHR, I'm fine with them having the powers they have, it's a means to rein in the excesses of the con-dem government.

      Prisoners and the vote? won't make a bit of difference so just give them it (perhaps a postal vote in the constituency they lived in before being locked up, wouldn't be hard to do or cost much money as the means to issue postal votes already exists)

      If you give a vote to some adults you must give it to all of them, anything less simply is not democracy.

      (And before anyone from the Daily Heil pipes up, they are in prison to lose their liberty, that is all, they are not in prison to be disenfranchised or for that matter used as slave labour.)

      You want to reduce reoffending? fix the educational opportunities for those incarcerated and make sure they're encouraged to take advantage of them (this is supposed to happen now but it often doesn't except at a basic level)

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    7. Nice one! But you laid it on a bit too thick and gave yourself away...

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  7. 35 years, my mistake:

    http://www.legislation.gov.uk/ukpga/1977/45/section/7

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    1. Brontosaurus24 May 2012 10:11

      Tom (IOW) - Not sure what relevance squatting has to this post. For the record squatting residential premises is NOT a criminal offence per se. Most squatters gain access to unoccupied buildings without causing damage. In these cases there is no criminal offence committed.
      If the building is occupied or about to be occupied by a 'protected intended occupier' then the squatter will commit a criminal offence if they refuse to leave.

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  8. I'm surprised that no one has condemned our young Prime Minister who feels sick at the idea of felons voting! Is he totally unaware of the circumstances in which the Convention was drafted? Did his father never tell him about WW2, and its aftermath?

    Why has the clot not brought in a swift and sensible bill to disenfranchise those sentenced to X or more years, with, if necessary to deal with his lunatic fringe, a three line whip?

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  9. The reason why the tabloid press hates the Human Rights Act is article 8 of the Act which states "Everyone has the right to respect for his private and family life, his home and his correspondence." Note the word "Private", judging what has been coming out at the Leveson enquiry, the press don't want anyone to have any privacy.

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  10. It's grim up North JP23 May 2012 22:50

    As my T-shirt says "I think therefore I am not a Daily Mail reader"

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  11. As usual, the DM headline was completely wrong and deliberately so. The E Ct HR has NOT insisted that ALL prisoners be allowed to vote. My own "take" on the case is at:

    http://obiterj.blogspot.co.uk/2012/05/outrage-unelected-euro-judges-trampling.html

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  12. Maybe the title could be written as "legal experts ask Parliament to abide by laws that it passes"

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  13. To the Europhile cheerleaders like Kimpasty; just be careful what you wish for. An all-powerful EU - with no powers at all remaining in the UK - may bite you one day.

    PS. "Bad Science" is indeed an excellent book, but you don't have to be "scientifically literate" to read it, that the whole point, you arrogant, pathetic little man.

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    1. Excellent job misreading the comment, Mr. Hibbo. The "scientifically literate" phrase refers to the science section of the DM, which seems designed to obscure, not illuminate. Figuring out the problems with the false science presented does actually require scientific literacy. Which, of course, reading the book would give you some of.

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  14. The principle of the Euro Court is of course good but it was never set up to get involved in matters like this - it was there to stop torture and despotic acts. Rather than saying it should be scrapped we should be getting it reformed.There is clearly something wrong with the whole set up when there are 1000s of cases waiting to be looked at where they neither raise concerns of major importance but are rather a winge.

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  15. Yes sending people to prison infringes a human right to freedom- but that right only exists when you obey the law. If you break it then since you have put yourself outside the law, you are entitled to be banged up( subject to proper judicial process) as long as you are not tortured or not treated badly then you get what you deserve. Being prohibited from voting whilst you are in klinq is a therefore proportional response. As soon as you join the renks of the unwashed again you can vote as much as you like subject to the opportunities arising.

    to my mind the European court has dragged itself down into philosophical considerations rather than practical law.

    The European Court should refrain from sticking its nose into matters like this which are best left to national parliaments.

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  16. Using emotive terminology such as "sticking its nose into" doesn't tend to foster rational debate. The issue is one that merits discussion, and BS is to be congratulated for coming back to it. It is in fact really rather a "big" question, and not a minor procedural matter. In essence, it goes to the very heart of the Convention, and of the rights guaranteed under that Convention. Can signatory states simply rescind or block, by a blanket measure, a Convention right? The Court (and now the responsible Minister too) have said 'no'. It's not specific to prisoner voting rights, but rather a general principle of law, and like many such matters, that has "philosophical considerations" as well. But the Court has been very clear for many years now that the practical issues about how a signatory state chooses to translate that principle into its national law are a matter for them, and not for the Court. What we now need to do is decide under what circumstances the right to vote can be rescinded. We know, because the Court has said so, in accordance with a long-established body of law, that it's not enough to say "when someone's in prison". Let our national parliament finally assume its responsibilities, rather than abdicate them as it has since 2005.

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  17. How about anyone sentenced for an either way or Indictable only offence cannot vote- anyone sent to chokey for summary matter - 6mths or less can . I don't think that would be too bad given that summary only offences are the ones at the lower end of the scale and are likely not to be a danger

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  18. BS - for pity's sake, stop reading the Daily Mail. It's bad for your blood pressure!

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  19. S'okay - the tablets can cope!

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  20. In practice, it's hard to see in what way a local authority can prevent anyone serving a sentence of less than a year in actual duration from remaining on the register, and even voting by proxy or post at any time up until the annual renewal date. Of course, when they are asked to confirm their details for the next register, they should give their current address, which might (but nothing's sure!) be enough of a clue to the Returning Officer's staff that the voter in question is ineligible, at least until such time as they are released, when they can apply to go back on the Register. Since the existence of an accurate and up-to-date Register is one of the few tools the Government has to measure demographic trends and manage other useful administrative data (in the absence of a national ID card scheme...), there are good reasons to encourage people to sign up, not least because it helps assist social reinsertion after a spell in prison. So I would start by suggesting that anyone serving a sentence of less than two years should not be deprived of the right to vote, unless the nature of their offence is such (vote rigging or other electoral fraud, for example) that a judge explicitly removes that right from them as part of their sentence.

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  21. All the ruling says is that you cannot have a blanket ban on ALL prisoners voting. It's perfectly OK under this ruling to ban voting for all prisoners serving more than a specified minimum sentence, or for specified offences.

    Or even all left-handed prisoners, although that would not stand up under Wednesbury....

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  22. It's a bloody disgrace that anyone considers prisoners should be given the vote. The country went to the dogs as soon as the hoi polloi were allowed to exercise this right with no responsibilities at all. The sooner we return to the vote being restricted to the responsible property owner, the better!

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  23. Message to DM readers: Not everything that you like doing can be labelled a human right. Not every job in the land has a legitimate claim to require people doing it to have been elected. I'd rather my surgeon was skilled at his work, rather than popular enough to garner the necessary votes. Ditto, police officers, teachers, paramedics, and on and on and on.....

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  24. If all this hinges on 'proportionality' and not 'a blanket' ban, then it is a load of legal tosh because the latter is de facto the former. How about: 'It shall be a proportionate penalty for any person convicted of any offence(s) and receiving a (some) custodial sentence(s) to be ineligible to vote in any General, European, or Local Election for the duration of that (those) sentence(s).' How simple and obvious is that ?

    Meanwhile, if the Europeans would concentrate on more important things, I should think that the supposed damage due to opprobrium about this issue would fade quite quickly. After all, we have now failed to reform the ECHR and bring it nearer to the founders' intentions, i.e., what we actually signed up to, all those years ago.

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    1. Far too simple for you to understand, apparently. If each and every person in custody after conviction is deprived of their Convention right, that is a blanket ban.

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  25. Why shouldn't someone who is serving a sentence which will see him in prison for 12 months, get to vote if there is a general election during his incarceration? He will be out either on licence or as a free man for most of the five years the government will be in power.

    If, of course, Parliament thinks otherwise it can pass an Act of Convict Disenfranchise which the ECHR will have no quarrel with. It's only the prevention of voting without legislative authority that causes the quarrel.

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