MPs in the Commons will today debate the motion put down by David Davis, Jack Straw and others (main business, over half way down the order paper), which is in these terms:
That this House notes the ruling of the European Court of Human Rights in Hirst v the United Kingdom in which it held that there had been no substantive debate by members of the legislature on the continued justification for maintaining a general restriction on the right of prisoners to vote; acknowledges the treaty obligations of the UK; is of the opinion that legislative decisions of this nature should be a matter for democratically-elected lawmakers; and supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand.
On the order paper you can also see an amendment supported by Sir Peter Bottomley, who in favour of prisoners’ votes, and one by Anne Main and others including John Redwood, Peter Lilley and Richard Shepherd, which
instructs the Government not to pay any compensation to prisoners and former prisoners in consequence of the maintenance of the current situation.
I have some sympathy with David Davis and the others wanting to dig their heels in about this: I am a supporter of the European Convention and Court of Human Rights, but as I’ve written before, the Court is sometimes far too ready to cross the line into detailed national policy, and it has done so in the Hirst case which is the root of the UK’s problem, and in its contradictory rulings since then.
The position of Jack Straw is more questionable, though: until recently he was Minister of Justice in a government publicly committed to implementing Hirst – though obviously at the same time putting implementation off to be dealt with after the 2010 election, when it would quite likely be someone else’s headache (as has indeed come to pass). I think it’s quite rich of Jack Straw now to “come out” as resisting implementation. Frank public opposition from him while in government might have had more impact.
Now, having had an international law obligation to implement Hirst for nearly 6 years, the UK has been given a clear timetable to do so in Greens & MT – by the end of this summer, assuming the government does not ask a Grand Chamber of the Court to reconsider the judgment. The Grand Chamber has already considered this of course – back in Hirst, in 2005. To be fair, this is the first time backbenchers have had the chance to express their view. But it is desperately late for MPs to be trying to resist Hirst now. And if this motion is passed – let’s see – the government will have a very big problem.
On the one hand, assuming the motion is passed, it will be clearly difficult to get any legislation through Parliament to give effect to Hirst. It’s true that would give the UK one more argument to make to its counterparts in the Council Committee of Ministers* of the Council of Europe, who are responsible for enforcing judgments, when making diplomatic attempts to play for more time or more sympathy. It might cause the government to try the desperate last legal throw of asking to refer Greens v MT to the Grand Chamber – there is time, just – even though there is little in that judgment itself to disagree with. There is a remote chance such a hearing might happen, and might cause a shift of approach in the court (where a minority of judges has in the past – in Hirst itself, notably – agreed with me and opponents of prisoners’ voting).
But equally, the government’s obligations in international law are clear, we have given other countries the clear impression for years that we intended to implement, and the legal clock is now ticking. While claims that the UK is at risk of compensation claims amounting to £100 million may be exaggerated (I’d say that’s the very worst conceivable case scenario; I think £50 million is what I’d politically “insure for” and that something like £5-£30 million is much more likely), public money is being put at risk. More seriously, the UK would be more at risk of being (I think) the first state brought back to the Court under new “infraction” procedures to answer for its non-implementation of a judgment. To beat Russia and Turkey to that dubious prize would not be ideal.
So, how to square the circle? How can the government fulfil its international law obligations, avoid the risk of being humiliatingly hauled up before the court in Strasbourg and a possible payout of up to £50 million – yet also satisfy MPs? Is it possible? I think it is.
If I were still in government advising ministers, I think I’d be reminding them that one way of implementing Hirst would be simply to allow any convicted prisoner to apply to the judge when sentenced to imprisonment to lift, in his or her case, the ban on voting in general elections to Westminster and the devolved national legislatures. There could be tough-sounding sentencing guidance telling judges to lift the ban only where absolutely necessary to comply with human rights. This would not be as clear or principled an approach as the government’s recent proposal for a four-year cut-off. But in terms of cynical realpolitik, it could work.
In reality, most convicts would apply. And when making the decision, judges would have to take account of Strasbourg case law – and so would probably end up lifting the ban in the vast majority of cases, as the cases seem to suggest may be required. Many, probably most, prisoners would end up getting the vote. Yet this could conceivably be sold now to MPs as a tough approach, refusing to give the vote by law to any prisoner at all, giving “stern” guidance to judges aiming at delivering minimal compliance case-by-case, and crucially, handing the problem to someone else. In due course MPs could enjoy the sport of blaming “activist” judges for their outrageous laxness in lifting the ban more often than not.
Cynical? Two-faced? Dishonest? You might think that, as Francis Urquhart would say. I won’t be surprised if the government proposes something like it.
[*Thanks to Faceless Bureaucrat for pointing out my error in comments]