Despite that Parliament have fundamentally rejected the ECHR's ruling before, they are being made to vote again. This brings me neatly back to my post yesterday, not only that the rule of law is nothing without enforcement by power - but that power should be by the will of the people. A similar vote which comprehensively approves of the blanket ban is going to set the UK government on a collision course with the ECHR - a battle over power.
We could of course ignore the ruling, which Tory MP Dominic Raab seemed to be arguing for on today's BBC Daily Politics. But....and it's a big but, that sets a dangerous precedent; it would create a precedent where the government can break its own laws solely on grounds that it didn’t like the unintended consequences of its own policies. We really don't want to go down that route for obvious reasons.
As an aside, the Spectaor makes a good point in relation to this topic of how fearsomely complicated it is to unpick our legal international obligations should we not agree. It's a good example of how simply repealing the ECA 1972 to leave the EU is unworkable and woefully naive:
Withdrawing membership of the ECtHR is a complicated business because many of Britain’s international obligations, particularly those related to the UN, are based on our having incorporated the European Convention on Human Rights into domestic law and our subscription to other international human rights conventions. Subsection three of this article in the European Journal of International Law goes some way to illustrating how complicated the situation is (and how uncertain lawyers generally are about the related academic questions).
In addition to the conventions and declarations of which most us have heard, we have to consider the International Covenant for Civil and Political Rights (1966), the Convention on the Rights of the Child, the Covenant on the Elimination of all forms of Discrimination Against Women, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of all forms of Racial Discrimination. And there are almost certainly more.
In many ways, the proliferation of international law reveals how powerful executive bodies have become in recent years; and, indeed, how inscrutably remote they are from representative institutions. The legal complexities associated with the enormous growth in international government are extremely hard to grasp and explain without substantial legal training and practice experience (I’ve tried my best dear readers!). From the layman’s perspective, though, there is an absurd irony, worthy of Evelyn Waugh, in well-intentioned human beings having gone to such lengths to protect rights that the recipients cannot even understand and even resent.
Unpicking this is going to be fearsomely difficult for parliamentarians, whose time is already hard-pressed; but that is not a reason to ignore an important democratic and legal question, and once which extends far beyond the matter of prisoner voting.Shami Chakrabarti from Liberty was also on the Daily Politics today (I'll put up a link later when it appears) arguing for the prisoners' vote ruling, and thus demonstrating her ignorance at the same time of how a democracy is supposed to work. In effect revealing the desperate need for Harrogate. She tried to argue that Parliament has to abide by the rule of law. This is a concept she struggles with, but Parliament is the law - that's the whole point of it. It makes law with consent of the people via elections (in theory). The current situation means a judiciary body is telling an elected Parliament what laws to pass and what not to pass. Thus the ECHR is not imposing prisoners voting rights on Parliament as she suggests but on the people; in the process removing our own right to vote in effect.
And by doing so it is acting as both a judiciary and legislature without any proper accountability via the ballot box. I think the young Shami Chakrabarti needs to study the theory and practice of the separation of powers; essential for a proper democracy - which is Harrogate demand #3
Shami Chakrabarti doesn't seem to realise that 'elite intellectual arguments' (and I use the term loosely where she's concerned) that effectively remove power from us are historically the basis and causes of revolutions.