I can’t be absolutely sure but I think this may be a ‘you heard it saw it here first’ moment.

The springboard for this is Charlie Whitaker’s piece on international law and the Iraq war, which he prefaces with the following quotation from the Lib Dem’s manifesto, covering their proposals for dealing with minor offenders:

“Offenders … would be given a choice - go to court in the normal way and face a criminal record, or go before a panel of local people. The offender would be expected to explain and apologise for his actions, and agree to a programme of work or reparation to make amends for the damage he has done.�

What no one, to date, appears to have noticed is that the Lib Dems proposals here are, themselves, illegal under Articles 4 & 5 of the Human Rights Act 1998 and the European Convention of Human Rights.

In putting forward the idea that minor offenders would undertake ‘a programme of work or reparation to make amends for the damage he has done’ these proposals fall within Article 4 of ECHR which deals with ‘Prohibition of Slavery and Force Labour’ and which state explicitly that:

No one shall be required to perform forced or compulsory labour.

but offer a seemingly applicable exemption on the basis that the definition of ‘forced labour’ excludes…

any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;

So far so good.

But now the Lib Dems have a major problem as Article 5 clearly states on several occasions that ‘detention’ can only legally be imposed by a court or competent legal authority - a ‘panel of local people’ is neither a court nor a competent legal authority and cannot, therefore, be used to impose a ‘programme of work or reparations’ on a minor offender even by agreement. Such an agreement would be legally unenforcable except in civil court as a contract, and even that is doubtful given the manner in which the ‘contract’ is imposed on the offender.

However you slice it, it doesn’t work.

The moral of this story? Always get your manifesto proof read by a lawyer before going to print.

Well if John Hemming is correct it looks like his application for a judicial review may possibly be heard in full on Thursday - i say possibly as the legal validity of his challenge to the system of postal voting is still to be determined - so a more accurate interpretation of proceedings is that the High Court is prepared to consider whether to grant permission for the review and, if granted, move straight into the full hearing on the same day.

Now, if I were John, I’d be more than a bit little concerned by that, if it is true. Notwithstanding John’s arguments as to the urgency of his case, the respondent - in this case the Department of Constitutional Affairs - is still entitled to reasonable time in which to prepare its case. So if, as John suggests, the full hearing is scheduled to proceed on Thursday, if permission is given, then one of two things has happened; either the government are preparing to make last minutes concessions or, as is more likely, the government are damn near certain they have a slam dunk on their hands and are ready and waiting for him.

Of the two, the latter seems far more likely to be true.

There are numerous reasons why John’s case is likely to fall flat on its face, not least in that he appears to have learned nothing from his previous stab at challenging the electoral system in 2002 which is cited on his own ‘Stolen Votes’ website.

This is one of the flaws in his argument that I spotted immediately following the posting of his skeleton argument for the case on his own blog - as was the case in 2002, when his challenge was based on allegations of ballot rigging in Pendle, its certainly not clear on what basis John is claiming that his own rights have been infringed given that both petitions in Birmingham related to wards other than his own.

Having been caught out once before on the basis of Locus Standii, you’d have thought that John would have known better this time around and, at the very least, have joined someone to his action who could legitimately claim to have had their rights infringed - he’s got three of his own party members and prospective councillors for Aston to choose from for starters.

However, as seems to be perenially the case with John, his ego has got the better of him once again and his personal vanity would not allow anyone but him to be the one to make the challenge - even if others would have been far better placed, in law, as the plaintiff in this matter.

Of course this is by no means the only problem with John’s case - another one that’s well worth highlighting appears in point 8(b) of his skeleton argument which reads:

Election fraud necessarily disenfranchises those whose votes have been “stolen� by those perpetrating the fraud (The electoral Court in Birmingham heard evidence from individuals who had attempted to vote only to be told that postal votes in their name had already been cast and so they could not cast their vote).

One has to agree with the sentiments here, but those sentiments are a long way from establishing that the government is directly responsible for election fraud and, therefore, for disenfranchising voters.

The simple fact that remains that it wasn’t the government that was, allegedly - and it has to be allegedly in the absence of criminal proceedings - stealing votes and disenfranchising voters, but a number of individuals. For a court to accept that the government is responsible, in human rights law, for the alledgedly criminal behaviour of a number of individuals is inconcievable and would open up a whole new field of potential litigation which would have the most far-reaching consequences for our entire judicial system.

To give but one example of what I mean, if one accepts this argument then one could argue with equal validity that where a court grants bail to an individual charged with burglary and that individual goes one, while on bial, to commit further similar offence, the court itself would be liable for action under article 8 of ECHR for failing to observe the rights of those who were burgled after the offender was granted bail to respect for their private and family life and, voila, there goes the entire system of bail and with it a huge chuck of the criminal justice system.

Moreover, in seeking to force though changes to the postal voting system it seems that John’s argument is not really based on the notion that the government should have had foreknowledge of the potential for fraud when introducing postal voting on demand but that since flaws in the system have become apparent it has failed to act to address those flaws, hence point 9 of his skeleton argument:

It is therefore submitted that the Court should compel the Defendant to ensure that the government introduces safeguards, by way of an Order in Council as set out in the application, to enable postal votes to reflect the free expression of the opinion of the people as soon as possible before the election on 5th May.

Unfortunately, for John, both he and Jerry (Hayes) seem to have missed clause 6 of HRA 1998, which reads:

“An act” includes a failure to act but does not include a failure to-
(a) introduce in, or lay before, Parliament a proposal for legislation; or
(b) make any primary legislation or remedial order.

Oh dear - it looks like ’sins of omission’ fall outside the purview of the Court under HRA.

John’s efforts to invoke article 14, ECHR’s non-discrimination provisions on the basis of differences in electoral process between the mainland and Ulster provide yet another wholly specious argument - constitutionally, the legal system in Northern Ireland is fully separate and distinct from that in England & Wales, as is the same when it comes to Scotland. This simple fact precludes the making of such a comparison - he might as well go to court and try to force through the introduction of PR in the UK on the basis that the first past the post electoral system used in the UK is less equitable, and therefore discriminatory - by comparison with the use of PR in, say, Germany or Italy, for all the good that argument will do him.

…

There is one final problem with John’s case which has escaped him throughout - one which related not to his arguments but to the remedies he’s seeking from the government.

John’s key demand, the one without which all others are useless, is that political parties should be permitted to scrutinise applications for postal ballots, after the fact, in order to identify possible fraudulent applications - John has even gone so far as to suggest the use of ‘handwriting experts’ to facilitate such checks.

There are two main problems with this proposal - first and foremost, an application for a postal ballot is not the actual ballot itself and is, therefore, not an absolute measure as to whether a vote has been cast legitimately by the correct voter.

Only by examining the ballot papers themselves could a reliable determination be made as to whether there is any real evidence of fraud…

… but as postal votes are signed by the voter, the examination of ballot papers, even after the fact, by a political party would compromise the secret ballot and, therefore, constitute a breach in human rights law.

Second, even if it appears that multiple applications for postal votes have been completed by the same individual, that of itself, is not evidence of any wrong doing.

Given that the main focus of this alleged problem is on Birmingham’s Muslim communities, where English is a second language and levels of adult literacy, especially amongst older voters, is likely to be fairly low, the one thing you would absolutely expect to find in applications for postal ballots from these communities is that, but the signature, many of the returned forms will have been filled in by the same person - how else are people going to apply for a postal ballot if they can’t read or write other than by asking someone to fill the form in for them!

Given that the inevitable consequence of this would be that the greatest degree of scrutiny - and the most post-election challenges - would fall upon minority communities in which English is a second language and, in particular, on votes cast by Muslim communities which have proportionately greater problems in terms of adult literacy than other communities, one has to consider whether John’s proposed remedies are not, themselves, inherently discriminatory and therefore incompatible with article 14 of the Human Right Act.

…

Final thoughts on this for the moment.

What John’s ultimately forgotten in is opportunistic headlong rush to prove the government wrong - and all in the name of the greater glory of John Hemming - is that the underlying issue here is about far more than the legality, or otherwise, of postal voting on demand, more even than party politics and the winning and losing of elections and certainly about far more than personal glory and public profile of an otherwise widely-disliked and brutally egocentric Liberal Democrat councillor.

At the heart of this issue is democracy itself, and more than that even, the question of how we go about protecting the democratic rights of those in our society who, for a variety of reasons, find themselves vulnerable to exploitation by the unscrupulous few whose personal credo is to win by any means and at all costs and above everything else, that’s the one thing that John Hemming has most clearly forgotten.

Oh, and before I forget, John - you still haven’t said whether you’re following the orders of your own party and processing postal vote applications from the Yardley office…

Accoding to the Beeb, the three main parties will be out today courting the votes of Britain’s Muslims, with a helpful (maybe) assist from the Muslim Council of Britain, who’re putting forward a list of 10 key questions that it believes all Muslim’s should be considering before deciding where to cast their vote.

Reading the list, the first thing you have to say is that these are damn good questions. The list is certainly well thought out, balanced and clearly designed to dispell the myth that the Muslim vote can be swung by playing on a single issue. The Muslim Council of Britain are to congratulated on what looks to be an exemplary exercise in promoting democracy, one which reflects the interest and concerns of their community without obvious bias.

Without wishing to be too cheeky, there is just one more question that Muslims, and indeed other minority communities could and should be asking of parliamentary candidates in their local areas, especially those who share their ethnic and cultural background; one that’s directly related to the question of representation (number eight on the MCB’s card) and that’s:

How many members of your local party come from our community?

All will be explained in due course in a fairly length piece I’m working on about the rise of communal politics in Britain, and in Britain’s inner cities in particular.

For the moment, let me just make the observation that when it comes to effective political representation for any minority community there is still a world of difference between voting for a party which has properly engaged with that community over the years and which draws a representative proportion of its local members from it and one which has simply parachuted in an ‘ethnicly appropriate’ candidate from elsewhere in a tokenistic attempt to capture a communal vote.

The Beeb are running a very interesting story about a most unexpected brief encounter between the man with the Ronseal tan, ‘Gorgeous’ George Galloway and ‘Salam Pax‘, known to the world as the ‘Baghdad Blogger’ and who’s personal coverage of the recent Iraq war and its aftermath - from the inside - is one of the highpoint of the blogging movement to date.

The exchange, itself, is fascinating, not least in terms of the breathtaking arrogance and presumption shown by Gorgeous George towards his unexpected visitor…

Mr Pax wanted to know why Mr Galloway wanted the immediate withdrawal of occupying troops from Iraq.

Galloway: “That’s your point of view, it’s not our point of view and you are entitled to your opinion, and I welcome you to London, and I am entitled to mine - and let’s see what the British people think.”

Whether you agree with Salam’s ‘take’ on the Iraq war or not, the idea that as an Iraqi citizen living in Baghdad, his views have no validity when compared to those of Gorgeous George is staggering - this is no mere disagreement but a would-be Member of Parliament dismissing the views of an Iraqi citizen on the simple basis that he - meaning Galloway - knows best…

…so much for Respect, eh George.