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Government's Control Orders defeated in court
In news that is likely to raise the ire of the Daily Mail, a judge has ruled that Control Orders are illegal, citing incompatibility with Article 5 of the European Convention on Human Rights (click here for Article 5).
I haven't read the judge's decision yet, and nor am I a legal scholar of any kind, but it seems self-evident that Control Orders violate one or both of these clauses:
3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
Control Orders are orders issued by the Home Secretary for the indefinite detention without trial of those people that the Home Secretary regards as potential security threats.
Doubtless this case will provoke further tabloid outcry, and much of it will focus on the 'foreign' nature of the ECHR and its 'interference' with traditional British law, as though these rights were invented by meddlesome Europeans in order to change the course of British legal tradition.
This is utter nonsense. The ECHR is a document steeped in British traditions of liberty, rights to fair trial and many more things besides. Without wishing to sound excessively nationalistic, it could be said that the document has far more of a British character than a European one; it could also be said that it embodies legal traditions that go back longer in Britain than they do in the rest of Europe.
How long? How about nearly 800 years? Compare, if you will, the above quotation from the ECHR with this, from Magna Carta:
[29] No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.
In this, it is the government which stands against centuries of English and British legal tradition, and the ECHR which firmly defends the best of those traditions. Next time the Daily Mail, David Cameron or Tony Blair himself try to say otherwise, they will be lying through their teeth. There is nothing more foreign to British traditions of liberty than the idea that a politician should be able to detain or imprison 'enemies of the state' without presenting any evidence for doing so and without any right for the detainee to challenge their status. That is a concept which belongs in an authoritarian state, not in a liberal democracy.

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I welcome Sullivan J's, decision in this case. However, the LibDems Menzies Campbell and Nick Clegg, are behaving more like Reggie and Ronnie Kray than politicians in a so-called liberal democracy.
Menzies Campbell is a supporter of breaches of human rights, like some mad dictator in a banana republic, behaving no differently than Blair and Cameron.
Nick Clegg goes in for censorship, as though he was a prison governor in a 1950s regime.
Er, John Hirst - in what way??
The u turn on prisoners human rights to vote. Charles Kennedy supported all convicted prisoners getting the vote, including the likes of Ian Huntley. He was right to support this, the ECtHR in the prisoners votes case, stated that in the 21st century, in a democratic State, the presumption must be in favour of universal franchise. Blair and Cameron wish to limit this. Ian Huntley is only one vote, to deny others because of his crime is disproportionate and does not follow a legitimate aim.
Oxonian: Also see my post on A Bill of Responsibilities.
To be honest, I was disappointed over the prisoners issue. I can see the case against giving life-sentence prisoners votes - they're not guaranteed to ever experience the effects of what they vote for. In some ways it has a passing similarity to the West Lothian question.
But such caveats and exceptions have a nasty habit of entrenching and expanding themselves. If we can exclude one class of citizen from voting, it becomes easier to excluse another. Making the principled case that all citizens should be able to vote is something we didn't do enough.
That is not my understanding of the ruling of the Strasbourg Court. The ECHR does not allow blanket bans on voting - you need to show that a ban is proportionate.
Peter
http://pigeon-post.blogspot.com/
Rob Knight and Peter: There is not a case against not giving lifers a vote. I am a lifer on licence. I started the action because there was no will in Parliament to legislate for penal reform, and that is because it was said that there are no votes in prison. Obviously, it meant prisoners are not a vote winner with the general public. Penal reform groups tend to be part of the problem rather than a solution. And, my studies stated that they fetter themselves by asking for, rather than demanding penal reform. Pressure groups can lobby for Parliamentary change, but they have votes and are listened to. Because prisoners do not, they can only suffer in silence or riot as at Strangeways. I do not support either of these options.
I think it was unfair of the Daily Mail to throw Ian Huntley's name at Charles Kennedy when he said he supported all prisoners having the vote. If you think about it, he was already included in the all. By singling him out, and all the emotive feelings associated with his crimes, it detracted from the issue. Ian Huntley, is one person, what does his one vote matter, he won't win an election with it. To deny all lifers the vote because of the revulsion felt for one is not proportionate and neither does it follow a legitimate aim. These are two of the principles used by the Court in its decision. The main principle cited by the Court, is the principle of universal franchise. That is, one person one vote. This is what democracy is all about.
The Convention states everybody is entitled to the vote. It does not state, everybody but prisoners. Ironically, the blanket ban dates back to 1870, and this was before universal franchise. The common man still did not have the vote. The ban was intended for those in power who ended up in prison for debt or for whatever, and it was deemed that they should not have a say in the goverance of the country whilst in prison. It was ahistorical. Whatever, the intention of Parliament way back then. This is the 21st century, and the Court said that in a modern democratic State, the presumption must favour the franchise. The State has to justify disenfranchising the public. And prisoners are not only human beings but also members of the public, albeit not at large.
During my research, I was amazed to discover that the issue of convicted prisoners being disenfranchised had never been debated in Parliament. It was just that this is how its always been, lets leave it that way. The Court critcised this position, removing rights without question. Presently, the Lord Chancellor is seeking to dig the government out of this hole of its own making (not the whole issue, I mean incorporating the Convention into the HRA 1998), by now offering to consult with the public over whether prisoners should have the vote. It's too late for talking about it, save for how they intend to implement the judgment, eg, postal ballot as in Ireland as a response of my case. It's worth pointing out, that the Suffragette Movement's motto became "Deeds not words" when Parliament wanted to talk about women and the vote, rather than give them the actual vote. Mine is similar, action not words.
The problem with the Lord Chancellor's position, is that before he had read the Court's decision, he was telling the media that categorically not all prisoners would get the vote. He would look to see which categories he might give the vote to. Having stated Tony Blair's view, and that it had not changed as a result of the decision, even though they had argued their position in court and lost. Argued upon appeal and lost. What is the point of going to court in the first place? And what is the point of a debate if they have already made up their minds?
Basically, the Court rejected that denial of the vote could be based upon the crime, unless there was link. For example, someone convicted of electoral fraud. And, that it must be imposed as a punishment by a court and not the Excutive, nor Parliament. It is worth noting that my claim that I was discriminated against under Article 14 which prohibits discrimination, was rejected by the Court on the ground that as they had already decided it on the other points it was not relevant. However, in my view, if the government attempts to discriminate against particular prisoners, it leaves them open to attack solely on Article 14. Legally, the case is sound. Politically, the government because it has constantly whipped the public into a frenzy over dehumanising prisoners, now has to say to the public, that they were wrong all along. The LibDems did not need to, they had already won the issue. Until Ming came along and unless he about turns has lost it for them also.
Rob Knight and Peter: Also see my piece under a Bill of Responsibilities by Simon Mollen.