David Green is Director of Civitas.
What should the Government do now that MPs have voted to defy the European Court of Human Rights on the issue of prisoner votes? The most decisive step would be to pass an Act of Indemnity, a method frequently used in the past to correct the mistakes or unacceptable decisions of courts.
Perhaps the most celebrated use of acts of indemnity followed the Test Act of 1672, which required anyone who held a civil or military office to accept certain doctrines of the Church of England. The Act was not repealed until 1863 and prevented, not only Catholics, but also Methodists and members of other minority faiths from holding public office. Parliament got round it by passing frequent acts of indemnity declaring actions that were illegal under the Test Act to have been legal after all, thus allowing non-conformists to play their full part in the life of the country.
Wartime emergency powers were also covered by indemnity acts. The Indemnity Act of 1920 declared legal some emergency measures taken during the First World War. They had been introduced in good faith to defeat the enemy and it was thought to be wrong to punish people for actions taken in the 'heat of battle'. The same happened after the Second World War. The Enemy Property Act of 1953 retrospectively regularised the confiscation of Nazi property.
More recently acts of indemnity have reversed court rulings that did not have the approval of Parliament. For example, the National Health Service (Invalid Direction) Act of 1980 legalised the action of administrators that a court had recently declared unlawful. The officials thought in good faith that they had been acting lawfully and Parliament gave them legal protection.
It is very obvious that the power to declare unlawful actions to have been legal could be abused. Consequently, it should be used sparingly. Nevertheless it is a necessary power and it is admirably suited to deal with the European Court of Human Rights. It would bind our judges to obey Parliament so long as MPs and peers reflect the wishes of the electorate, which in this case they plainly do.
If a judge defies Parliament it may be necessary to invoke the procedure for dismissal established by the 1701 Act of Settlement, namely to pass a resolution (an Address) of both Houses of Parliament requiring the Queen to remove the offender from office. The power, which was reaffirmed under the 2005 Constitution Act, has only been used against one person, an Irish judge who was corrupt. No English judge has been removed by this procedure because, so far, the judges have been amongst the foremost upholders of the laws of this land. But there is first time for everything.