by Paul Goodman
This is the story not so much of a coming political car crash as of a Parliamentary motorway pile-up in peak time. It stars a gloating axe killer, a European court, human rights, a vexed judgement, an recent Parliamentary answer, satisfied Liberal Democrat MPs, unhappy Conservative backbenchers, an opportunistic Labour Party, a Tory Minister being used as a human shield to protect the most important Liberal Democrat in the Government, a Conservative leadership trying to square a circle, a rampant media - and an administration facing the prospect of its biggest Commons revolt to date.
On Monday December 20 - after most MPs had returned to their constituencies and homes for Christmas - Mark Harper, the Cabinet Office Minister, issued a written statement called "Voting Entitlement". This brief heading offered no clue about the importance of what was below it - namely, the Government's plan in response to judgements made by the European Court of Human Rights about prisoners and voting. The Department wasn't trying to smuggle out a major statement, surely?
Its essence was as follows -
* The court says that we must introduce legislation to meet its requirements by August next year.
* If we don't, we'll have to shell out a shedload of money to meet some of the 2,500 claims currently before the court.
* However, it doesn't oblige us to give all prisoners the vote - only some of them.
* Four years imprisonment is often regarded as the distinction between short-term and long-term prisoners. So we'll go with that: any prisoner serving a sentence of less than four years will get the vote, unless a judge specifically says otherwise. The Government "will...bring forward legislation providing that the blanket ban in the existing law will be replaced".
It's far from clear whether -
* This proposal is legally watertight.
* Or whether, even in its own terms, it's equitable, since some violent criminals, whose offences are particularly obnoxious to the public, will be serving less than four years, while some non-violent criminals will be serving more.
What's certain, however, is that under it some criminals convicted of very serious offences undoubtedly will get the vote. It's worth recalling that John Hirst, the axe killer whose successful appeal helped force the Government's response, and who was filmed celebrating the decision while quaffing champagne and smoking cannabis, said in response to the court's decision -
"I'm going to celebrate for the 75,000 prisoners who will be getting the vote. That includes murderers, rapists, paedophiles. All of them will be getting the vote because it's their right."
Hirst was wrong to suggest that that they'll all get the vote. However, some serious offenders undoubtedly will, and this is quite bad enough. It's not hard to see how events will unfold -
* As the vote approaches, the tabloids and the Tory press will hunt high and low for such offenders, find them, and publicise their cases - which will heighten voter fury. It wouldn't be surprising were a paper to run a write-in campaign urging readers to lobby MPs against the plan.
* Liberal Democrat MPs will defend the Government's proposals - indicating, in a few cases, that Ministers should have gone further, and that all prisoners should have the right to vote, the position taken by one of Nick Clegg's predecessors as Liberal Democrat leader, Charles Kennedy.
* Conservative MPs will attack them. The biggest Tory backbench revolt to date has seen 77 MPs vote to relax the smoking ban. Since Harper's statement has gained very little publicity to date (The Independent providing one of the few exceptions), it's impossible to be sure yet of whether backbench reaction will match this tally. But it's hard to think of a matter more likely to enrage Conservative MPs, combining, as it does, the toxic issues of Europe and crime (not to mention the Liberal Democrats).
* The row will inflame present Coalition tensions... The Christmas period has seen the Government tested in the aftermath of the tuition fees vote. Adrian Sanders believes that the Liberal Democrats should be shouting about policy wins over the Conservatives. Nick Clegg thinks that they shouldn't. John Redwood says that the Liberal Democrats have taken credit for too much already. David Cameron intervened personally to ensure that the Conservative by-election campaign in Oldham East and Saddleworth has been kept minimal, and there are persistent indications that the leadership is angling for the Coalition to be made permanent. The Tory back benches are discontented over IPSA.
* ...Thus forcing Harper to provide further cover for Clegg. Clegg is fairly and squarely in charge of prisoners and voting: he is, after all, responsible for political and constitutional reform. But Downing Street's relations with its own backbenchers would be further soured were the Deputy Prime Minister to take the lead on the issue. It would look as though Clegg was pushing one his party's pet projects down unwilling Tory throats - as well as exposing the already becalmed Deputy Prime Minister to more assault by tabloid. Harper was put up to make an oral statement on the issue in the Commons, before the Government's plan was announced in December. He was also sent in to handle most of the AV referendum bill - another unpopular cause with Conservative backbenchers - during which Clegg was mostly absent. Harper has thus been been thrown to date a series of hospital passes. Being assigned the role of Clegg's human shield has been an unlucky break for one of the more right-wing Ministers on the Government benches.
The essence of the Clegg/Harper case is that the Government has no alternative. However, there at least four - two of which have been flagged up on this site by Dominic Raab.
* At one end of the political scale, the Government could have produced different and tighter criteria. For example, Malta and San Marino ban prisoners serving sentences of more than year from voting. France bars prisoners convicted of certain categories of crimes.
* At the other, the Government could withdraw from the ECHR altogether.
* If the Government won't do that it could, as Rabb suggested, simply ignore the Court's judgements. As he put it, "The human rights lobby will claim that this would damage the international rule of law. But, half of the Strasbourg judges had no prior judicial experience. And the real challenge to the rule of law now comes from judges behaving like unelected legislators".
* And if the Government doesn't want to do that either, it could put three options before the Commons rather than one. That's to say, it could offer the Commons the options of voting for its own proposals, for all prisoners being allowed to vote, and for the status quo. This would be consistent with the Party's view in Opposition, when Dominic Grieve was quoted as saying -
"The principle that those who are in custody after conviction should not have the opportunity to vote is a perfectly rational one. Civic rights go with civic responsibility, but these rights have been flagrantly violated by those who have committed imprisonable offences. The Government must allow a parliamentary debate which gives MPs the opportunity to insist on retaining our existing practice that convicted prisoners can't vote."
As Raab wrote -
"If, as I suspect, Parliament voted to retain the current ban, Britain would have met the challenge of the Strasbourg Court, which complained the blanket ban lacked democratic legitimacy. What would we have to fear? Who is seriously suggesting that Britain would be kicked out of the Council of Europe, whilst France deports Roma en masse and the Strasbourg Court is backed up with serious human rights violations committed by the Russian, Bulgarian and Romanian governments?"
My sense is that there would be wide support on the Government benches for a vote on the status quo. In the event of such a vote, the outcome could depend on Ed Miliband. As Harper rightly points out in his written answer, Labour did nothing to address this matter in Government, letting it drift and leaving it for the next administration to deal with. A whipped Labour vote for the Government's preferred option would probably maximise a Conservative revolt. A vote against it could defeat the Government if a revolt's big enough in any event.
David Cameron could and should escape this prospect by a fifth option: dumping the Clegg/Harper plan altogether, and throwing the Government's weight behind the status quo - no votes for prisoners - and returning the matter to the court, thus meeting its challenge, as Raab would put it.
Comment: As I suspected ConservativeHome decided not to publish my response therefore it was just as well that I kept a copy...
Interesting headline, however, it does not reflect the true picture. The government's proposals need to keep the Committee of Ministers of the Council of Europe happy, and they can only achieve this by fully complying with my judgment. Obviously, this entails giving serious offenders the vote. The European Court of Human Rights has already ruled in my case Hirst No2(manslaughter), Frodl (murder), Greens (rapist) and MT (paedophile?) that these categories of prisoners are entitled to vote.
The Court has also ruled that only in very limited circumstances can the franchise be removed, for example, in the cases of those convicted of electoral fraud or abuse of a public office (MPs convicted of expenses fiddling?).
I have already tweeted that David Cameron is a crash test dummy. Recently, the BBC stated "A big test for David Cameron will come over issues such as giving prisoners the vote".
And this is going to make him sick, he will have to apply the Hirst test.
It is referred to in Frodl v Austria.
Para 34 "Under the Hirst test, besides ruling out automatic and blanket restrictions it is an essential element that the decision on disenfranchisement should be taken by a judge, taking into account the particular circumstances, and that there must be a link between the offence committed and issues relating to elections and democratic institutions".
When I heard that Vince Cable said he could bring the government down, I thought to myself 'Yes, he can get in the queue!'.
Why shouldn't I gloat when, after 5 years, prisoners votes has finally got on the political agenda?
Mark Harper's written statement falls down because it does not meet the Hirst test. Interestingly, his answer has been stolen from Labour's discarded dodgy consultation exercises.
Whilst I have been celebrating Christmas, I have also been preparing a surprise for when Parliament returns. I have William Hague of the FCO, Kenneth Clarke (MoJ), and Dominic Grieve (AG) in my sights.
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