Chris Grayling, the United Kingdom's first non-lawyer Lord Chancellor in 500 years, has kept his head fairly well down on the votes for prisoners controversy. He is very wise to do so – and not only because this row has been inflated beyond measure for specious political reasons. Grayling is also under legal duties that preclude him arguing that the UK should ignore a clear decision of the European Court of Human Rights.
Grayling's post was created by the Constitutional Reform Act 2005. This followed then-Prime Minister Tony Blair's somewhat offhand announcement of reform to the post of Lord Chancellor in order to get rid of his one-time mentor Lord Irvine. As a result, Grayling has sworn an oath required by the act to 'uphold the rule of law' and is subject to rather incoherent words at its beginning that imply that such upstanding behaviour has long been expected from the Lord Chancellor.
The precise ambit of the rule of law can be contested. However, there is no doubt that, in modern construction, the rule of law means, at the very minimum, that governments act according to whatever the law is – whether made by statute, judges or any other source that the state has agreed to respect. Thus, if the European Court of Human Rights requires the UK government to respond to a judgement on prisoners' votes then we do.
The notion that a government is bound to act legally is pretty obvious to lawyers, but others sometimes have difficulty in getting it. The Attorney General, Dominic Grieve QC, a decent man and a good lawyer, has been explaining to fellow ministers that they cannot argue with the referee after they have been sent off. The court says we have to devise a way of conceding the principle of prisoners' voting. His advice amounts to: "Just do it."
As the Mail explained: "For Dominic, the rule of law is the key issue. The legal advice is very clear that the UK has to abide by the court's ruling. There are different ways of doing it, but we cannot just say no – it may be popular politically in the short term, but legally it is madness and even the popularity of it may fade when we start having to pay compensation to murderers."
The voting row is nonsense anyway because any prison governor confronted with an inmate who wanted to vote would probably jump for joy at a wish for such civic involvement. Plus, the evidence from other countries is that prisoners, like too many who are free, do not see any point in voting. And, in any event, the court has not said that every prisoner can vote: you could exclude most of them if you really wanted.
Grayling's professional pose is as a hanger and flogger. He replaced Ken Clarke because Prime Minister David Cameron wanted a sharper, more retributive image for the coalition's criminal justice policy. The Lord Chancellor has said previously that he was "profoundly unhappy" at the interference of Strasbourg judges in the UK's internal affairs. Let us hope, however, that his silence to date at this stage of the debate is deliberate. Indeed, it will stick in his craw, but his duties probably require him publicly to stick up for his colleague, the beleaguered Attorney General. No bad thing. He needs some support.
Roger Smith OBE is the director of Justice, a law reform and human rights organisation
Comment: Roger Smith is wrong in relation to this section of his article "you could exclude most of them if you really wanted".