In a couple of weeks’ time, the government’s relationship with the Council of Europe will reach something of a turning point.
If the UK is going to comply with its international treaty obligations, ministers will have to “bring forward legislative proposals” by 22 November that will end what the European court of human rights calls the “general, automatic and indiscriminate disenfranchisement of all serving prisoners”.
That’s all the government has to do. There’s no need to give all or even most prisoners the vote. Parliament doesn’t even have to approve the proposals, although its failure to do so would lead to further challenges in due course.
But the prime minister painted himself into a corner last month. It’s true he offered to have “another vote in parliament on another resolution”. But a resolution is not the same as a bill. And David Cameron said, in terms: “Prisoners are not getting the vote under this government.”
On Law in Action, I discussed the prime minister’s options with Sir Edward Garnier QC. The Conservative MP was dropped by Cameron two months ago from his post as solicitor general for, presumably, not being conservative enough: he was, after all, once the Guardian’s night lawyer.
Surely it would be inconsistent with the rule of law for Cameron to do nothing, I suggested to Garnier. The government’s former law officer readily agreed. He then added:
“If this were a decision of the supreme court in this country, or the high court or the court of appeal, I would feel a lot more uncomfortable, both as a politician and as a lawyer. Because it is this interesting, and strange, and somewhat small ‘p’, political body known as the European court of human rights, whose judges are from all sorts of different backgrounds, political and legal, the imperative to bend the knee is less. Adhering to judgments of a court to which we are signed up by treaty is an aspect of the rule of law, which we must obey. And we can’t pick and choose the laws we want to obey. But, the prime minister has a choice to make and I suspect that the choice he will make is: ‘Thank you, Mr Attorney, for your very careful advice, but I can’t quite hear you.’”
If this proves to be the case, no doubt the prime minister’s resolve will have been stiffened by three rulings against the government this week, especially the finding that Arthur Redfearn, a Bradford bus driver, should not have lost his job for being a member of the British National Party.
That case was decided by a majority of four judges to three. It turned on article 11 of the human rights convention, which protects freedom of association. The court stressed that its role was “not to pass judgment on the policies or aims, obnoxious or otherwise, of the BNP at the relevant time … but solely to determine whether the applicant’s rights under article 11 were breached in the particular circumstances of the instant case”.
Redfearn had argued that the UK was under a duty to enact legislation that would have protected him from dismissal by his employer, even though he had been employed for less than a year. Sir Nicolas Bratza and the two other judges in the minority thought this was going too far.
It is a pity that they were unable to persuade just one other judge to change sides. Of course, employees should not normally lose their jobs because of their political opinions. But neither should the Strasbourg court seek to micro-manage employment law in member states.
Next Tuesday, the human rights court will rule on a UK case of much greater importance. It arises from the death of Giles Van Colle, 25, an optometrist who was murdered in north London 12 years ago by Ali Amelzadeh, an Iranian who called himself Daniel Brougham at the time.
Van Colle had been due to give evidence against Brougham, a former employee who had been charged with stealing property from him. Hertfordshire police accepted in court that DC David Ridley, the detective investigating the theft charges, should have contacted or arrested Brougham after he had made serious threats to Van Colle’s life.
In 2006, the high court found that the police had acted unlawfully by failing to protect the optometrist’s life, a “positive obligation” under article 2 of the human rights convention. That decision was upheld by the court of appeal in 2007 but overturned by the law lords in 2008.
Van Colle’s devoted parents challenged the law lords’ ruling in Strasbourg. The question on which the court invited submissions was: Did the police know or ought they to have known of the existence of a real and immediate risk to the applicants’ son’s life and did they fail to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk?
As is usual these days, the court saw no need for an oral hearing. It would therefore be rash to predict what it will decide.
Because the human rights convention has become so notorious in the UK, it is easy to forget that the convention and the court that supports it are just one manifestation of the 47-member Council of Europe.
That body aims to raise standards among member states in many areas of life, of which the most topical is child protection. And, sure enough, we find that member states agreed as long ago as 2007 on the text of a convention on the protection of children against sexual exploitation and sexual abuse. It all looks very worthwhile to me and I am not surprised that the UK signed it the following year. The convention came into force in 2010, after five states had ratified it. It is now binding on 22 countries. But the UK has still not ratified it. I wonder why.
This article first appeared on Guardian.co.uk/law and is reproduced here as part of the Guardian Legal Network with permission and thanks.
Sign up to free human rights updates by email, Facebook, Twitter or RSS