Giving prisoners the vote: Q. The European Court of Human Rights- to whom is it unaccountable for when it behaves illegally? Ans. Member States
I have already warned about the European Convention on Human Rights this time last year. Then I said: 'The European Convention on Human Rights is a unique hypocrisy amongst instruments claiming to protect liberty. For all the supposed liberties it grants (which reflect select values of a few lawyers and civil servants and not the people of Europe that its title (Convention for the Protection of Human Rights and Fundamental Freedoms) grandiosely seems to claim), it allows the state to define circumstances in which to take them away. But it is more than this, in classic ‘anti-liberal’ spirit, the Convention also defines the limits of the rights it espouses, through the existence of constrictive provisos upon which they can be relied upon.
An inherent feature of the concept of 'rights' is to have an unlimited number of claims against the state. That it is the duty of the state to provide for them, irrespective of the merit of the individual bringing forward the claim.'
This has now been show by the absurd issue of prisoner's votes. Bentham, one of the great 19th Century Liberals, reflected on the history of liberty in England and noted that abuse of power occurs when power is in a few hands. Though the tyranny of monarchy had gone, what he feared then was a tyranny of unelected judges. That it was vital that Parliament develop itself constitutionally to have clear supremacy, under positive law, to protect democracy from hyperactive judges. No one would have thought we would have signed up to a treaty that did exactly the opposite: to gave a clear licence to judges to be politicians. Alas, only if the Government in the 1950s had consulted that expert on treaties (the world expert), the British lawyer, Lord McNair. He would have pointed out how the text was open to abuse. This possible expansive approach to treaty interpretation is superbly expostulated in his masterly work on the law of treaties. (Oddly McNair was later the President of the Strasbourg court, though a very refrained and thoughtful judge).
This was not done. What we now have is foreign elected judges, from significantly diverse legal backgrounds (many from states that have no rule of law)making political decisions, for our country, through legal means. There is little to suggest that David Cameron will do anything but voice a meager, and quiet, personal opinion on this.
What then is to hold this unelected court to account? Or are we seeing a new era of divine law, as in medieval times, that we cannot question or subject to reason? And does anyone get the more damning point, that European Court of Human Rights is making sentencing and criminal justice policy by making such a decision- thus clearly violating the text of the treaty?
Wake up Mr. Cameron, and wake up Britain.
Abhijit P.G. Pandya Copyright 2011
Birkenhead Society Copyright 2011.