Coalition faces backbench split over prisoners' right to vote

Coalition faces backbench split over prisoners' right to vote

Policy Exchange thinktank urges government to consider withdrawing from European convention on human rights

By Patrick Wintour, political editor, Guardian, Monday 7 February 2011

The foreign secretary, William Hague, said that rejecting the principle of prisoners' votes would create a constitutional clash. Photograph: Getty Images

David Cameron is facing the prospect of seeing the majority of his backbench MPs split from coalition ministers to oppose giving prisoners the right to vote, a move that will embolden Tories calling for the government to pull out of the European convention on human rights.

The influential Tory thinktank Policy Exchange today calls for the government to withdraw from the convention if negotiations to limit and reform the European court fail. It publishes a poll showing two-thirds of British voters support a UK-based supreme court rather than one in Strasbourg, the home of the European court.

The government has been required by a European court ruling to give some prisoners the vote, exposing it to large compensation claims if it does not comply.

With MPs due to vote on the issue on Thursday, the foreign secretary, William Hague, warned backbenchers not to reject the principle of prisoners' votes. He said if the government were defeated there would be "a clash between parliament in this country and a convention on human rights that we signed 60 years ago, and of course we'll then have to decide what to do about that". He added there was "no escape" from the responsibilities of the European convention.

Such is the fury on Tory benches over the issue that backbenchers and 40 or so parliamentary private secretaries have been given a free vote at the end of the Commons debate on Thursday.

A motion tabled by the Labour former justice secretary Jack Straw and the Conservative former shadow home secretary David Davis rejects the interference of the European court of human rights. It insists the right to vote should not be extended, but acknowledges UK treaty obligations, a statement that appears to recognise the government's duty to comply with the court's judgments. An amendment tabled by the Conservative MP Anne Main goes further by instructing ministers not to pay compensation to prisoners.

But Hague said: "I'll be voting with my government colleagues because the world isn't an ideal place. We have to try to make sure, yes, that we comply [with the convention]. Otherwise, of course, the British taxpayer will be liable to pay enormous amounts of compensation."

He added: "I'm part of the government and what we've decided to do, given our great distaste for this, is to do the minimum that is necessary to comply with that ruling and not to extend the right to vote to the worst offenders."

He claimed the European judges were interpreting the law "in a new and, I think, deeply unhelpful way".

Under the government's proposals those serving up to four years in prison will be able to vote in general elections by proxy or by post in their normal constituency of residence.

The justice secretary, Ken Clarke, said the four-year threshold was decided upon after receiving legal advice and that it was a "rational line" drawn in order to comply with legal obligations.

The coalition agreement requires ministers to look at the possibility of a British human rights act, but there has been little enthusiasm for the idea in the Ministry of Justice.

Comment: "The government has been required by a European court ruling to give some prisoners the vote, exposing it to large compensation claims if it does not comply".

This is factually inaccurate because the UK is required in Hirst v UK (No2) to give all convicted prisoners the vote. This position was reaffirmed in Frodl v Austria wherein it refers to the Hirst test, namely, that all convicted prisoners must get the vote regardless of the nature and seriousness of offence and length of sentence.

"He added: "I'm part of the government and what we've decided to do, given our great distaste for this, is to do the minimum that is necessary to comply with that ruling and not to extend the right to vote to the worst offenders."

Whilst it is a direct quote, it is obviously contrary to the ruling in my case. The legal position is that the minimum necessary is to fully comply with the judgment in my case.

On Wednesday 26 January 2011 the Parliamentary Assembly of the Council of Europe (PACE) passed the resolution:

"The United Kingdom must put to an end the practice of delaying full implementation of Court judgments with respect to politically sensitive issues, such as prisoners’ voting rights".

On Monday 23 January 2011 Monday, the Secretary General of the Council of Europe,Thorbjørn Jagland, stated in his speech:

"We have to stress the implementation of the rule of law in order also to once again highlight the interrelationship between rule of law and democratic and human rights principles. First of all, for a Council of Europe member state, the rule of law means full compliance with the European Convention of Human Rights other legally-binding instruments and of course the judgments of the European Court of Human Rights".

"It insists the right to vote should not be extended, but acknowledges UK treaty obligations, a statement that appears to recognise the government's duty to comply with the court's judgments".

This backbench motion is a both a legal and political nonsense. The UK State (Executive, Parliament and Judiciary) is under an obligation to fully comply with both the Convention and Cout's decisions. Therefore, the UK must fufill its obligation. Given that the status quo cannot remain unchanged and meet the obligation, the right to vote must be extended.

"An amendment tabled by the Conservative MP Anne Main goes further by instructing ministers not to pay compensation to prisoners".

Under the Article 13 of the Convention the UK must provide an effective remedy enforceable in law. Therefore if a court awards a prisoner £1,000 for loss of the vote in both the 2009 European and 2010 general election, then that prisoner will be legally entitled to compensation and the government will have no option but to pay it.

"Under the government's proposals those serving up to four years in prison will be able to vote in general elections by proxy or by post in their normal constituency of residence".

My challenge was to both general and local elections. And stated that there could be no arbitrary cut-off point, such as that proposed by the government. The proposal is therefore contrary to my case and is unlawful under both international and European law.

"The justice secretary, Ken Clarke, said the four-year threshold was decided upon after receiving legal advice and that it was a "rational line" drawn in order to comply with legal obligations".

Legal advice is not the law. Hirst v UK (No2) is the law. It is not rational to ignore the law for political purpose. This position is clearly an irrational line. Moreover, the line attempting to be drawn in the sand fails to fully comply with legal obligations.