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Melanchthon in ConservativeHome writes that if/when the British Parliament votes to refuse to give the vote to inmates, it will set the stage for a constitutional crisis:

We then have five thousand prisoners complain that their human rights have been violated, and they sue for compensation.  The courts rule in their favour at – what shall we say? – £10,000 each including costs?  So that’s £50m.

The government then has to decide whether to pay.  But in Parliament MPs are already putting down motions forbidding the government from paying any such compensation.  *  *  *  So then the courts instruct the government to pay compensation, and Parliament forbids it.

Then what?  Does the UK withdraw from the ECHR?  (No problem for me and the UKIP and the twenty or so brave Tory MPs who fight for liberty and sovereignty.)

I might have a solution:  Deprive UK courts of jurisdiction to hear the prisoner cases, either at trial or on appeal.  (My disclaimer:  I am not licensed to practice law in the UK and I cannot give specific legal advice on how to do it.  But it seems to me that the general jurisdiction or power of the UK courts to hear cases can have specific limitations set by Parliament.)

Here in America, we have a written constitution and it speaks to this very thing:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.  In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.  (Art. III, section 3)

What’s that mean, Sanders?  You’re the lawyer, here!  It means that the Supreme Court is a creature of limited jurisdiction and that the appellate jurisdiction or power of the Court can be limited by Congress.  The judicial power is in fact limited; only the supreme court is a constitutional court – all other federal courts can constitutionally be abolished.  Hence the combination of these two provisions enable Congress to say that all, let’s say abortion cases, cannot be heard by either the lower federal courts or the Supreme Court.

What?  WHAT?  Surely not.  Never been done.  Oh, yes it has:  In 1868.  The Congress forbade the Supreme Court from hearing a certain habeas corpus case arising from the detention of a Mississippi newespaper editor while the case was BEFORE the Court.  The Court dutifully complied.  Ex parte McCardle, 74 U.S. 506 (1868) is the name of the case and here is the opinion.

You could argue and some do that this is a decision from the time the Court’s power and influence was at its nadir and today the result would be different.  You might be right.  We can only find out if the decision arises.  It has not yet done so.  But, perhaps the UK might try this:

Deprive the UK courts of any power to hear any cases regarding the prisoners’ right to vote or to award damages.  Perhaps the crisis will be averted, until the cases reaches the ECHR regarding the UK law.  Then, the PM will have to say whether it intends to follow the ECHR.  The case may not for one reason or another reach the ECHR.  Perhaps by then the UKIP will have a majority in Westminster and the UK will be out of the EU and the ECHR.  Remember my wonderful readers, the EU is NOT YOUR FRIEND!

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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