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Thread: A very interesting read

  1. #1
    Senior Member DizzyDee's Avatar
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    Jun 2013

    A very interesting read

    I only said to my OH the other day that I thought this was the way the government wanted us to go.

  2. #2
    Senior Member
    Join Date
    Dec 2013
    I've read Sue's articles and blog for a long time. She is a cogent and wise writer who, yet again, gives a challenging and insightful view of the increasingly bleak situation at the moment.

    The reasons behind Sue's article are many of the same reasons why I'm trying to complete my law degree. It may not be much in the big scheme of things, but I'm a disabled person who understands 'from the inside', and I care. I only wish I had more strength. Though it may not seem so from my recent posting history here (much of which is my attempt, on a small scale, to deal with the sort of issues Sue raises), I've been very poorly recently and am struggling desperately for strength. I spent the early part of Friday afternoon flaked out unconscious.

    Sue is quite right to say that the threats to revoke the Human Rights Act 1998 (and, if some in the Conservative Party get their way, the UK's membership of the European Convention on Human Rights 1951) are very real. Having studied human rights law, I'm well aware of the history. ECHR was passed as a response to the atrocities of the Second World War, as Sue notes. British lawyers made a significant contribution to its drafting, and the United Kingdom was one of the first countries to ratify ECHR.

    Very few of the cases in the European Court of Human Rights ('ECtHR') lead to a finding against the UK, and the prominent ones that do are often 'sexed up' for political reasons. Take prisoners and voting (Hirst v United Kingdom (No. 2) [2005] ECHR 681). As is now well known, Mr Hirst won. What is less well known are any details of the judgment.

    If you want to understand exactly why and how ECHR speaks to prisoners voting, there's little alternative to reading much of the judgment. If you take it from me that the Convention states that you can only deprive a prisoner of the right to vote when that is proportionate, we reach the key point of the judgment. The Court acknowledged that there is a "wide margin of appreciation" (ECtHR jargon that acknowledges different countries hold a wide range of views that are acceptable to the Court) over the extent to which countries remove the right to vote from prisoners, but that a blanket ban on voting for all imprisoned convicted prisoners goes too far to be proportionate (see paragraph 82 of the judgment). The court declined to accede to the UK Government's requests for guidance on what limits might be acceptable (paragraphs 83-84), leaving a solution as a matter for Parliament.

    Mr Hirst requested £5,000 compensation ("just satisfaction" in ECtHR jargon) for suffering and distress (paragraph 91) - when ECtHR gives monetary compensation, the amounts are very low. This was rejected: in essence, he was told that winning his case and any rectification by the UK Government of the current situation was enough (paragraphs 93-94). His claimed legal expenses were reduced significantly and he got 200 Euros for his "mostly unitemised" out of pocket expenses (paragraphs 97-98).

    A sizeable part of this post is about Hirst because this case has become the focus of much political posturing. The general lack of understanding of the issues behind Hirst shows how people's views are manipulated by media and politicians alike.

    Hirst underlines the general principles that human rights cases typically relate to the disadvantaged in society and often to an unpopular argument. If you listened to the politicians, you would believe that this case is a travesty for democracy ("Europe telling us what to do again") or all about prisoners jumping on a compensation bandwagon. Yet, as I already noted, ECtHR refused to direct Parliament on what it should do and financial compensation in ECtHR is limited. Any compensation bandwagon would run in the domestic courts, and could be derailed by the government doing as ECtHR asked.

    A likely tipping point in any solution to Hirst is being sentenced to more than two years imprisonment. Two years is the absolute maximum length of imprisonment that can be imposed by a magistrates' court so anyone sentenced to more than two years imprisonment must have been convicted by a jury of their peers in a Crown Court trial. Whatever solution is adopted, it seems unlikely to have given Mr Hirst the vote whilst he remained in prison, as he was serving a discretionary life sentence for manslaughter on the grounds of diminished responsibility. Human rights cases can land up being mostly about a principle.

    There will be those to whom any notion of prisoners being able to vote is unacceptable. With any contentious issue, there are always arguments on both sides. However, I believe it is fair to say that the rights granted by ECHR (the main points are in schedule 1 Human Rights Act 1998) are a fairly narrow set of fundamental rights.

    ECHR has led to decisions that are unpopular, and there are areas that need work such as the interplay between immigration and the right to respect for private and family life under Article 8. However, that same Article lies between decisions that would attract widespread support today, including the 1982 ECtHR finding that some Northern Ireland laws criminalising certain homosexual practises breached Article 8.

    Most international law has limited consequences if breached and is difficult to rely on in the UK courts. If there is a conflict between international law and UK law, the UK courts are all but compelled to follow UK law unless the international law in question is EU law (which has precedence over UK law via the European Communities Act 1972). ECHR does not enjoy the same absolute precedence over UK law but there are a powerful suite of ECHR based rights created by the Human Rights Act 1998. This makes the Human Rights Act a crucial element in balance between the state and the individual.

    Another crucial element in the balance between the state and the individual is judicial review, which allows decisions of public bodies to be challenged in the courts based on various grounds but not policy. The Government was proposing to curtail the right to judicial review, but my understanding is that they have backed away from that position. However, they are still proposing to increase the fees connected with a judicial review application.

    It is already difficult to bring judicial review proceedings, as legal representation is almost essential considering the complexity of the subject. The proposed increase in fees will further limit access to judicial review.

    The erosion of individual's rights via the proposed repeal of the Human Rights Act 1998 and proposed fee increases for judicial review are quite chilling. This is all the more chilling when we have a government that sees few barriers to further erosion of the welfare system and has not ruled out the suggestion to take 'added value' into account when making NHS treatment decisions.

    Those who wish the UK to leave ECHR entirely often have a hidden agenda. It is mandatory for EU members to be under ECHR. Should the UK rescind our ratification of ECHR, it is likely we would be forced out of the EU. This makes leaving ECHR a convenient back door to leave the EU.

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