Who guards the guardian of the Judiciary?

Who guards the guardian of the Judiciary?

Andrew Neil on Sunday Politics questioning Chris Grayling on votes for prisoners

AN: All right. Let’s come on to prisoners voting. David Cameron said that prisoners are not getting the vote under this government, but you are going to place options before parliament, some of which would give prisoners the vote.  Which way will you vote?

34:16

A: Well we haven’t got anything to vote on yet, but let’s be clear about what the legal position is and my position is particularly different in this because I am Lord Chancellor, I’ve sworn an oath to uphold the law. The requirement upon government and government ministers is very clear. That it is our duty to implement rulings of the European Court. But the legal position for parliament is different. That – and this is advice that’s come from the Attorney General,  there was also advice under the House of Lords 12 years ago from Lord Justice Hoffman, that parliament has the right to overrule the European Court of Human Rights if it believe it wants to do so. It has to accept there may be a political consequence for doing that, but it has the right to do so. So what we’ve done is we’ve said to parliament, right, this is the legal position. We’re under an obligation to do that, you’re not. I’m going to give you three options two of which involve giving some prisoners the vote, the third of which will give you the right to exercise your sovereignty and say no to the European Court. It’s up to you to decide. And there’s going to be a process of consultation over the next few months before it reaches the point of a vote.

AN: I understand that, but are you saying that as Lord Chancellor you cannot vote for the option which is status quo no votes for prisoners?

35:29

A: Well when we come to the point of a vote I will take appropriate legal advice. My position’s very different to other Members of Parliament on this because of my role as Guardian of the Judiciary.

AN:  Could the prime minister vote no?

35:39

A: I’m the only person who’s subject to the oath to uphold the law. The prime minister is subject to the ministerial code and he is of course the arbiter of the ministerial code. He will have to decide at the time what he wants ministers to do. My position is different, but it’s a matter for parliament as a whole.

AN: I understand that too but you – what  you I think are saying is that you may be asking parliament to vote for something, ie no votes for prisoners which you cannot vote for yourself or your Cabinet colleagues cannot vote for. Is that true? Is that a possibility?

36:08

A: There is no question – I mean the prime minister’s view on this is clear. I’m on the record on my view on this.

AN: I’m asking you  how you would vote.

36:13

A: But also I have legal responsibility and you can’t be Lord Chancellor and Justice Secretary and not uphold the law. Whether you like the law or not. You can try and change the law. What I will do at the time is I’ll take appropriate legal advice about what I can and can’t do, but fundamentally this is a choice for parliament and what I’ve done is say to parliament it would be very easy simply to accept the ruling but actually the legal base is different. The legal base says, you as members of parliament,  you as parliament collectively have the right to decide yes or no to accept this ruling, I’m offering you the choice.

AN: Thank you for clarifying that.

Tony Blair stated in the HoC that prisoners would not get the vote under a Labour government. It's Ground-hog Day! David Cameron said that prisoners are not getting the vote under this government. Can he justify this statement? It appears to clash with the views expressed by two members of the Cabinet; the Justice Secretary Chris Grayling and Attorney General Dominic Grieve. If Cameron's reasoning is based upon his other statement that the thought of giving prisoners the vote makes him physically ill, it is contended that this reasoning is not legally sound.

Is the draft Bill presented to Parliament by Chris Grayling legally valid? In particular, the option to maintain the blanket ban, and excluding the option for full franchise?

Which way will Grayling vote? It depends if he has a conscience. He dodged answering Andrew Neil's question, before feeding him with a load of waffle. Laughably Neil then thanked Grayling for clarifying the issue. Clear as mud!

Andrew Neil: “Which way will you vote?”.

Chris Grayling: “Well we haven’t got anything to vote on yet, but let’s be clear about what the legal position is and my position is particularly different in this because I am Lord Chancellor, I’ve sworn an oath to uphold the law. The requirement upon government and government ministers is very clear. That it is our duty to implement rulings of the European Court. But the legal position for parliament is different. That – and this is advice that’s come from the Attorney General,  there was also advice under the House of Lords 12 years ago from Lord Justice Hoffman, that parliament has the right to overrule the European Court of Human Rights if it believe it wants to do so. It has to accept there may be a political consequence for doing that, but it has the right to do so. So what we’ve done is we’ve said to parliament, right, this is the legal position. We’re under an obligation to do that, you’re not. I’m going to give you three options two of which involve giving some prisoners the vote, the third of which will give you the right to exercise your sovereignty and say no to the European Court. It’s up to you to decide. And there’s going to be a process of consultation over the next few months before it reaches the point of a vote”.

The prisoners votes case is over 7 years ago. Why hasn't there been anything to vote on yet? Hasn't Grayling heard of the legal principle 'justice delayed is justice denied'? He appears to be a man without principle.

Call me Dave has stated 'were all in this together'. Grayling is now claiming he's different. I don't accept his position is any different. Aren't the Tories the 'law and order' party? Are they now to be known as the lawless and disorder party? The requirement upon the government and ministers he is referring to relates to the Ministerial Code. However, the Prime Minister's Rules are not a creature of statute and have no legal status. They might as well be called the Bullingdon Club Rules! The Ministerial Code should be laid down in an Act of Parliament, because as they stand it is doubtful that a court would enforce the Code or provide a remedy for its breach, in other words, adopting a 'hands-off' policy on the issue. Nor is it accepted that it is different for Parliament. Hirst v UK (No2) is binding on all three arms of the State; Executive, Parliament and Judiciary.

Grayling has misunderstood advice given by Dominic Grieve, and misunderstood what Lord Hoffman stated. Parliament has no legal right to overrule the ECtHR, its decisions are final. There is no so-called 'democratic override'. The Greek Colonels discovered this in the 1960s, and more recently the President of Belarus. Dictatorships, authoritarian or totalitarian States do not adhere to human rights, democracy and rule of law. Grayling has also misled Parliament with his non-lawyer “legal advice” claiming parliamentary sovereignty of being above the law with the right to break the law. The consultations are yet another delaying tactic.

Given that Cameron has had appropriate legal advice and ignored it like Blair did on the Iraq War, will Grayling also ignore the appropriate legal advice when he votes on prisoners votes?

Grayling: “I have legal responsibility and you can’t be Lord Chancellor and Justice Secretary and not uphold the law”.

Charles Falconer, Jack Straw and Kenneth Clarke managed to do this, not uphold the law.

Given that Grayling accepts that it would be easy simply to accept the ECtHR ruling, why has the UK resisted for over 7 years? It is nonsense to claim that the legal base for Parliament is different, it's the same for all 47 Member States of the Council of Europe. Toe the line. Grayling is saying he's given Parliament the choice of sticking up two fingers to the ECtHR. It's pure spin. Grayling's choice is the modern equivalent of Hobson's choice. He's given less margin of appreciation than the ECtHR.