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When will the UK Government stop dithering and start applying the law?


This is a guest post by Farah Damji

In the 2004 decision of Hirst, the European Court held that  Section 3 of the Representation of the People Act 1983, which prevents prisoners from voting, is in breach of the electoral right under Article 1 of Protocol 3 of the European Convention on Human Rights. In a landmark case in which a serving prisoner took the UK Government to the European Court of Human Rights, it was ruled that the current law which denied prisoners the vote was a violation of the most basic human right.  In spite of a warning by the Ministers of the Council of Europe,  which is in place to ensure the directives of the ECHR are complied with   in December 2009, no further action was taken  on the matter while the last government dithered about who exactly should be allowed to vote and who should be denied.  Should murderers be banned and shoplifters allowed to vote? Should it depend on the length of a sentence that an offender was serving?   The ministers’ warning was meant to elicit a response and get a working mechanism in place before the last general election, that didn’t happen, even though the Electoral Commission made provisions to allow for the practicalities of votes being made, counted and dispatched well in advance, the issue  remained  an allergen for the last government and  particularly  for Jack Straw, the former Justice Secretary  who made no secret of his contempt for the idea. The government was further rebuked by the UN Human Rights committee and has dragged its feet by holding two  and then two more consultations on the issue as to who should be allowed to vote. It all seems rather moot considering that the case was brought by the notorious John Hirst, who served 25 years for a brutal axe murder of his landlady. And he won his case.

The UK is one of only 12 European countries which impose a blanket ban on all voting, by all prisoners.  Worldwide, we are in the dubious non-democratic company of Japan and Russia. The US does not impose a blanket ban, seven states allow voting, although some states enforce  a ban even after a prisoner has served his sentence.

This is not to take  a view on any so-called “moral authority”  a view widely held by the neocon, scaremongering, tabloid-pandering  ministers in the last government  as previously  asserted by Baroness Asthall when asked why prisoners should be banned from voting. The law has been declared unlawful by a majority of seven judges in the ECHR.  What is this administration doing about it?  Other than inherit a £750 fine per prisoner, and pass this matter round like toxic political ping pong, clearly not nothing much.

Nick Clegg the Deputy Prime Minister made this an important part of his election manifesto and as recently as September 20th had stated that he was  looking into ways to  overturn the existing ban and has been tasked by the  Home Secretary , who runs the Justice Ministry to  look into this matter. In spite of recent reports about a spat and a difference in opinion between Clegg and Cameron on this issue, there have been no further statements from either the Ministry of Justice or the Cabinet Office.  This is more creative comment by certain rightwing dailies on whose agendas prisoners’ rights are somewhere near immigration caps being lifted. However, whilst Clegg enjoys a lot of grass roots support for this  pre-election adherence to his beliefs, his Conservative coalition partners are in no hurry to see the law change. Now is not the time or the place to dissect and  discuss the  Human Rights Act 2000  or to accuse Nick Clegg of being a Eurofederalist. Now is the time to effect the change in the law so that prisoners across the UK will be allowed to vote in the 2011 local elections.  A statement from the Cabinet office was forthcoming but only as follows:

“The Government has been actively considering the issue over the summer and this work is continuing.”

The whole policy area of ‘Political and Constitutional Reform’ has now come to the Cabinet Office as part of the Deputy Prime Minister’s agenda.  Whether  Nick Clegg will make his grass roots supporters proud or whether he will disappoint remains to be seen.

When it  lost the original case in the ECHR, the UK appealed to the Grand Chamber, and on 6 October 2005 the UK lost its appeal when the Grand Chamber upheld the decision of the Chamber. Under the Convention, the decision of the Grand Chamber is final.

October 6th 2010  marks the five year anniversary  that the UK lost its appeal  and John Hirst, the original applicant , Shaun Attwood, aka jonsjailjournal.blogspot.com and I will be seeking an urgent, ex parte Order of  Mandamus   against the Ministry of Justice  to stop passing the buck and deal with this matter. The situation regarding the transfer of responsibility raises the question as to whether Ken Clarke has acted ultra  vires. According to the Ministry of Justice ‘s own website

“We are also responsible for making new laws, strengthening democracy, modernising the constitution and safeguarding human rights”.

The application will seek an order quashing  the 2010 decision to remove the responsibility for the change in the law from the Ministry of Justice to the Cabinet Office.   What must be acknowledge  by this government  is that  Human Rights are higher law, and overrule any offending statute which is contrary to an established human right.

The words of Guantanamo lawyer and defender of death row inmates, Clive Stafford  Smith resonate:

“ A democratic society is best judged by how it treats its most problematic citizens.”