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Before the 2015 election, the Conservatives threatened to withdraw from the jurisdiction of the European Court of Human Rights entirely.  Chris Grayling, then Justice Secretary, set out his proposals to do so if necessary on this site.  The question of Britain’s relationship with the court had become a point of contention mainly, though not exclusively, because of its insistence that prisoners should have the right to vote – a view comprehensively rejected by the Commons earlier in the Parliament, and shared by Grayling and other Ministers.  David Cameron said that it made him “physically ill even to contemplate having to give the vote to anyone who is in prison”.

After the 2015 poll, Grayling’s plan was dropped, but Dominic Raab, then the Minister in the department responsible, flew to Strasbourg and delivered what was described “as a hard-hitting speech” which made it clear that the Government was not going to back down on votes for prisoners. “We made it clear there’s no realistic prospect of lifting the ban on prisoner voting for the foreseeable future,” he was reported as saying.

And yesterday, it was reported that David Lidington now plans to lift the ban – at least in part.  We suspect that this development is at least as likely to anger and engage voters than the current and better-ventilated reports of misconduct by some MPs.  What is going on?

Part of the answer is to found in the steadily decreasing Government majority.  Grayling was writing when the Coalition had one of about 80, on the spectacularly speculative assumption that the Tories, after the 2015 election, would have a majority sufficient to get withdrawal from the court through Parliament.  Raab was speaking when the Conservatives, in the wake of that poll, had gained a majority of 30 or so – not enough for withdrawal.  It was doubtful whether the then new Government would have the numbers even to deliver the British Bill of Rights promised in the 2015 Tory manifesto.  Michael Gove, the new Justice Secretary, was unpersuaded in any case whether such a measure would be meaningful were Britain still to be signed up to the ECHR.

But a deeper explanation lies in the changed political landscape.  Until last year’s Conservative leadership election, Theresa May had been the Cabinet’s main cheerleader for quitting the court.  But as soon as it kicked off, she dropped that aspiration entirely.  The key to her decision was the EU referendum result.  She did not want to give the SNP, which enthuses about the convention and the court, a new excuse to whip up pro-separation feeling in the wake of the Brexit decision.  Nor did she wish to hand the same vantage to Sinn Fein. The European Convention on Human Rights is written into the text of the Belfast Agreement as a safeguard.

ConservativeHome’s heart is with Edward Faulks, a Minister under Gove, who argued earlier this year on this site that Britain should repeal the Human Rights Act, allow our own courts and Parliament to protect human rights – and quit the court’s jurisdiction.  But our head is with the Government.  One of the early gains of Brexit has been a prompt halt to the SNP’s pro-independence drive in Scotland.  It should not be put at risk.  In any event, there is no Commons majority for leaving the court, and no Tory manifesto commitment to do so from last June.  Indeed, that document promised the opposite: “we will remain signatories to the European Convention on Human Rights for the duration of the next parliament”.

David Lidington, who in turn has succeeded Gove, is not the man to dream of leaving the court.  But nor is his move a scheme to give all prisoners the vote.  Rather, it seems to be a plan to give as few as possible that right.  Those sentenced to less than a year behind bars who are let out on day release will reportedly be entited to vote.  Essentially, the Justice Secretary proposes to knock the ball – in the latest of the interminable exchanges between the Government and the court – back onto the latter’s side of the net.  He was apparently concerned that Britain would be confronted over its refusal to implement the court’s prisoner vote decision at December’s meeting of Council of Europe Ministers.

We would rather that he had stuck to the position that Raab took two years ago.  In any event, we doubt that his manoeuvre will satisfy the court (a reading that we suspect he shares).  Like the Dane in the Kipling poem, it will surely be back for more.  One striking element of the Justice Secretary’s proposal is that it will not require leglisation.  But what if the Commons finds a way of voting on the matter anyway, and takes the same view that it has previously?  At such a point, the Government’s airy dismissal of Commons votes that it doesn’t like – note the recent row over a successful Labour motion on universal credit – might well become a live issue for more Conservative MPs and activists.  Edward Leigh put a well-argued case against the Government’s stance on ConservativeHome recently.

But, for the moment at least, most Tory MPs seem to believe that remaining in the ECHR is a price Britain must pay for leaving the EU, at least until the time comes to draft the 2020 manifesto.  But if its 2017 predecessor promised no change to the status quo when it comes to the Court, as it did, it also did so with regard to the Charter of Fundamental Rights.  “We will not bring [it] into UK law,” this year’s manifesto declared.  Ministers are entitled to press that view on backbenchers if a vote comes on that matter during forthcoming debate on the EU Withdrawal Bill.

195 comments for: Remaining in the ECHR is a cost of leaving the EU

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