Yesterday’s debate delivered the predictable result – a heavy defeat for those opposing the motion that reasserts our current law that suspends the voting rights of sentenced prisoners. We are now in uncharted territory. One thing we know for sure is that this is not even the end of the beginning.
The vote on the backbench motion – 234 in favour of maintaining the ban, 22 against – was just that, a vote on a motion. It has no legislative effect. The Coalition Government now needs to prepare its own legislation to be laid, probably before the summer recess, to amend the 1983 Act in order to give effect to Strasbourg’s ruling. That legislation will require another vote, which even if it is heavily whipped, is unlikely to command a majority in the Commons.
A further watering down – perhaps providing the option of maintaining the ban for all those sentenced to 6 months or more (coherent at least, as a divide between those convicted by a Crown or magistrates court, as Anna Soubry MP argued) – is possible, but even that would probably still fail. The whole tenor of yesterday’s debate proved that many MPs from all parties have decided to dig in their heels. And they are in tune with the public, who are opposed to prisoners voting in principle. Besides, as was argued by Anne Main MP – whose amendment to explicitly prohibit compensation was not called – legislation with a new sentence threshold would not last long: “the litigation will not stop because we have put that line in the sand”, she said.
So, after the next inevitable defeat, although there is huge scope for uncertainty in all of this, it looks like the Government has essentially three political options.
First, defy the will of the House and seek to change the law with executive powers; second, endorse the will of the House and employ it to begin a serious reform initiative that seeks to repatriate some powers from Strasbourg and establish a new relationship with the court; or third, ignore the current ruling, use the will of the House and the impossibility of passing legislation to claim moral authority for inaction, and rather than challenge Strasbourg explicitly, just obfuscate. These amount to three alternative governing tactics to resolve this impasse – if not forever, then at least for the lifetime of this government.
Firstly, a previous Strasbourg ruling that went against the UK government was on an issue – the DNA database – that was largely uncontroversial, and the Home Office corrected it through primary legislation. However, on the back of the next defeat, Ministers have no such option, could lay a remedial order to amend the law, rather than use primary legislation. The relevant Parliamentary committee thinks that in extremis such an executive measure to bring UK law into compliance with a Strasbourg ruling is possible – but it has never been tested. To even try would be hugely controversial and probably liable in itself to a challenge in the courts – especially with recent and large parliamentary majorities against such a change.
Another option open to the Government might be to make a virtue of necessity. This whole episode could be used as an opportunity to reassess the UK’s relationship with the Strasbourg court, which as Policy Exchange’s report this week set out, is in urgent need of reform, to improve the competency of its justices, improve its administration and strictly limit its scope. If such negotiations failed, we should consider leaving its jurisdiction. In which case, as the human rights barrister Rosalind English said in her review of our report, “the difficulties are diplomatic rather than legal in the strict sense of the word.”
This route requires a political commitment at the highest level – perhaps to the point of raising this as an agenda item at future Council of Europe meetings – and a legal and diplomatic commitment from departments of state to take this up and lobby hard. At least by doing so we would test what appetite there is among other Member States to look seriously at reforming the Strasbourg court. We are not the only country in this position. It is by no means clear how such a process would play out, or what the obstacles might be, but it could not be undertaken lightly. However, as the former Law Lord, Lord Hoffmann wrote in the foreword to our recent report, we should consider an attempt to “repatriate our law of human rights… It is worth a try”.
The last alternative – which is the path of least resistance for Ministers – is a tactic of delay, with the express will of Parliament deployed as the moral justification. This delay strategy could be political, and legal. Under this scenario, the Government thanks Parliament for its contribution, and then kicks off another public consultation (the third) – giving everyone 8 months to respond – and justifies this by proposing some alternative options that were not consulted on before (like a 6 month sentencing threshold). The Ministry of Justice could then take another 6 months to consider all the responses – the careful processing of so many responses would take time – and then provide the Cabinet with new policy advice. The legal delay that is then orchestrated might involve an attempt to refer the judgement of the latest case (Greens vs MT) to the Grand Chamber of the Court. That process could not be concluded quickly. The worst outcome would come from new infraction procedures which might result in the UK being brought back before the Strasbourg Court for failing to apply a ruling, but on such an issue, and ahead of Russia? – very unlikely and if so, probably not before 2014.
Is it good government to try and evade the problem arising from this particular case, rather than seeking to address the root of the problem, as Nick Boles MP argues? Arguably not. But an expansionist supra-national court has casually trampled on parliamentary democracy and our Executive is running out of good options. The argument is sometimes made that unless addressed now, this issue will just come back, and it will be worst next time. But we cannot know that for sure, and even if it does, it will not be Prime Minister Cameron – let alone Justice Secretary Clarke – that will have to deal with it again.
After five years of tactical obfuscation, the strategy devised by Jack Straw – one of the most effective politicians of his generation – is far from spent. Driven by the advice of their own law officers, Ken Clarke and Dominic Grieve prematurely mowed the long grass unnecessarily. Thanks to a backbench motion and the vote last night, the long grass has just grown back. To repeat Prime Minister Salisbury’s dictum: “Delay is life”.