R (on the application of Barclay and Others) (Appellants) v. Secretary of State for Justice and Others (Respondents)
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R (on the application of Barclay and Others) (Appellants) v. Secretary of State for Justice and Others (Respondents)
Michaelmas Term [2009] UKSC 9 On appeal from: [2008] EWCA Civ 1319 JUDGMENT R (on the application of Barclay and others) (Appellants) v Secretary of State for Justice and others (Respondents) before Lord Hope, Deputy President Lord ScottLord BrownLord Neuberger Lord Collins JUDGMENT GIVEN ON 1 December 2009 Heard on 15 and 16 July 2009Respondents Lord Pannick QC Jonathan Crow QC James Dingemans QC Jessica Simor Ben Hooper Appellants (First & Second) (Instructed by Treasury Solicitors) (Instructed by Withers LLP) (UK) (Instructed by Ozannes Advocates) (Guernsey) Appellant (Third) in person Tomaz Slivnik LORD COLLINS The right to free elections 1. As a result of the experience of the pre-war dictatorships, the right to free elections was emphasised during and immediately following the Second World War as an essential element of personal freedom and equality before the law. As Professor Hersch (later Sir Hersch) Lauterpacht put it in 1945: "... the right of self-government - which in developed society means government by persons freely chosen by and accountable to the electors - is in itself an expression and a condition of freedom. No individual ... is free if he is governed against his will, that is, if the persons who exercise authority are not chosen by and accountable to the community at large." (Lauterpacht, An International Bill of the Rights of Man (1945), 135) 2. Five years later Lauterpacht said: "Without an effective guarantee of these political rights of freedom, personal freedom and equality before the law must be, at best, precarious; at worst they may be meaningless ... The insistence on an International Bill of Rights and the proclamation of the enthronement rights of man as a major purpose of the Second World War were prompted by the experience of dictatorships the essence of which was the denial of the political right of freedom. ... There is no intrinsic reason why the right to free, secret and periodic elections should not be ... recognised by law and declared enforceable." (Lauterpacht, International Law and Human Rights (1950), 281-2) 3. Consequently the right to free elections as an essential element of the developing international law of human rights was recognised in Lauterpacht's own draft International Bill of the Rights of Man (Article 10), in the American Law Institute's 1944 draft Statement of Essential Human Rights (Article 16), in the Inter-American Juridical Committee's 1946 draft Declaration of the International Rights and Duties of Man (Article XIII), and in the Universal Declaration of Human Rights adopted by the General Assembly in 1948 (Article 21(1)), and later in the International Covenant on Civil and Political Rights (1966) (Article 25) and the American Convention on Human Rights (1969) (Article 23). 4. The Preamble to the European Convention on Human Rights states that fundamental freedoms are best ensured by (inter alia) an effective political democracy. In Bowman v United Kingdom (1998) 26 EHRR 1, para 42, the European Court of Human Rights said: "Free elections and freedom of expression, particularly freedom of political debate, together form the bedrock of any democratic system." In United Communist Party of Turkey and Others v. Turkey (1998) 26 EHRR 121, para 45, it was said: "Democracy is without doubt a fundamental feature of the European public order ... The Preamble goes on to affirm that European countries have a common heritage of political traditions, ideals, freedom and the rule of law. The Court has observed that in that common heritage are to be found the underlying values of the Convention; it has pointed out several times that the Convention was designed to maintain and promote the ideals and values of a democratic society". 5. The First Protocol to the European Convention on Human Rights was signed in Paris on March 20, 1952. The Protocol was ratified by the United Kingdom in November 1952, and entered into force on May 18, 1954. By Article 3 of the Protocol: "Right to free elections The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under co...See the full content of this document
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