Prisoners’ votes: what’s the government up to? And are they missing a trick?

It’s well known that the government faces a problem when it comes to prisoners’ votes.

On the one hand, the European Court of Human Rights ruled in the Hirst case in 2005 that the UK’s general disenfranchisement of all serving prisoners was in breach of the European Convention on Human Rights – specifically article 3 of Protocol 1 to the Convention. Since then, the Court has confirmed that ruling in subsequent judgments, notably Greens & MT v UK and Scoppola v Italy (No. 3). The result is that the UK has until 23 November to take some sort of action towards give at least some prisoners the vote. That six month deadline was initially laid down in Greens v MT (which is the key case now dealing with exactly what the UK must do); it was then put back by the Court until six months after the Scoppola judgment, which was given in May this year. So as the Attorney General Dominic Grieve rightly said to the justice select committee last week, the UK is legally obliged to do something to comply, now.

On the other hand, as Grieve also told the committee, no one can impose a solution on Parliament, and it seems unlikely that the government could get any legislative change through the House of Commons. Indeed the political pressure on it has led the Prime Minister to say prisoners will not get the vote as long as he’s in office. So what does the government have to do? What can it do?

As I’ve said, Grieve is right both to say that the UK must do something; and that Parliament can refuse to if it wants. The apparent contradiction is because the two statements refer to the position in two different legal systems: in international law, the UK must do something; in our own domestic law, Parliament has the last word.

The argument within government at the moment must centre on how far the government itself – rather than Parliament – wishes to be seen as trying to comply with Strasbourg’s rulings. While Parliament’s probably refusal to act gives the UK no defence in international law, it’s the government which is primarily responsible for compliance, and which must answer for the UK internationally. It matters diplomatically and to some extent legally whether the government simply refuses to do anything – or whether it is seen trying and failing to get change through Parliament. It’s worth noting what the judgment in Greens & MT v UK, which spells out the UK’s legal obligations, actually says, at operative paragraph 6 (towards the very end of the judgment):

the respondent State must:

(a) bring forward, within six months of the date upon which the present judgment becomes final, legislative proposals intended to amend the 1983 Act and, if appropriate, the 2002 Act in a manner which is Convention-compliant; and

(b) enact the required legislation within any such period as may be determined by the Committee of Ministers

Dominic Grieve has presumably advised that the obligation in paragraph 6(a) can be complied with simply by introducing a bill into Parliament. If the government merely does that, arguably the six-month timetable is met, and the government will be back into the diplomatic game of spinning out the longer timetable allowed by paragraph 6(b) in discussions with its counterparts in the Council of Ministers. Crucially, this approach gives the UK a reasonable argument against the reopening of the large number of cases brought by prisoners which the European Court put on hold in Greens & MT, on condition that the government meet its compliance timetable.

This is almost certainly the reason why David Cameron is apparently contemplating a Commons vote soon if it’s “necessary” or will “clarify the legal position”. In reality, both he and Grieve are, I suspect, intending to do enough, this autumn, to allow them to argue that the UK’s immediate obligation is complied with, and to play for yet more time.

I wonder, though, whether Cameron is missing a trick here. At the moment, everyone in politics assumes that a bill would necessarily offend Tory backbenchers, and that the government has no chance of achieving the slightest legislative change. But it’s conceivable the government could offer Parliament a way of moving one step towards something like compliance, while at the same time offering two Eurosceptic fingers back in the direction of Strasbourg – as I argued immediately after the Scoppola ruling:

the government could just conceivably get support for a solution if it at the same time it throws some red meat to its Conservative Eurosceptic backbenchers – which this judgment may give it some room to do.

We know from Greens v MT (and Scoppola confirms this) that the UK has considerable room for maneouvre in how it gives prisoners the vote. If it wanted seriously to comply, Parliament would probably need to grant the vote to most prisoners serving under two or three years. But something less than this – something fairly minimal, to move away from what the Strasbourg court has called the UK’s “blanket ban” on voting by convicted prisoners – would help a bit. It could even gain the UK enough time for the whole issue to die down until a completely new legal cycle was complete – fresh challenges Human Rights Act challenges to the new system, followed by subsequent applications to Strasbourg to test the new regime – all of which could take several years.

For example, the government could introduce a bill saying that all prisoners sentenced to two years or more, or serving a second sentence however short, and all prisoners convicted of certain offences (such as electoral fraud and perjury perhaps) would remain without the vote. But other first-time prisoners serving less than two years could apply to be allowed to vote in their last three months in prison, say, if their disciplinary record was outstanding. This could lead to very few prisoners actually voting: I don’t say it’s enough to comply with Strasbourg’s rulings. It would, though, be enough for the UK to make some kind of respectable argument that it had complied, and to spin out further time.

That’s the one step forward I mentioned earlier. So what’s the red meat that could tempt Eurosceptics?

Take a look at the Scoppola judgment. Note, first, that Italy won this case: paragraphs 103-109 make clear that the European Court sees the Italian system as permissible. Secondly, it’s worth noting the details of the Italian prison voting ban. There (see para. 36 of the judgment), prisoners who serve over three years lose the vote for five years – much longer than they lose it in Britain. And prisoners who are sentenced to five years or more lose the vote for life, subject to a right to apply to be given it back. It’s amazing that these provisions, which are clearly harsher and less proportionate than the UK’s “blanket ban”, have been given Strasbourg’s seal of approval. It shows how absurd the European Court’s approach to this question has been. But approved they have been.

So the government could introduce provisions similar to the Italian ones, alongside its “compliance” provisions – and they could considerably sweeten the nasty taste, for many MPs. Rather than taking a purely heel-digging approach, this could be a clever way to spite Strasbourg while trying to outmanoeuvre it.

Of course none of this would be possible if, as David Cameron has suggested, no prisoner is to be given the vote on his watch. But I wonder if he’s missing a trick. Might truculence serve him better than sheer stubbornness?