Thursday’s debate on the backbench motion on prisoner voting tabled by Jack Straw
and David Davis is set to be a real parliamentary event – a rare occasion where the will of the elected legislature might just make a big difference. The real news will not be how many
endorse the ban, but which MPs – aside from those abstaining Government Ministers and Denis MacShane – choose to bow to Strasbourg.
MPs preparing to speak out against Strasbourg are now armed with a powerful academic case. A new Policy Exchange report authored by the political scientist Michael Pinto-Duschinsky – Bringing Rights Back Home – outlines how
the UK can address the growing problem of conflicts between judges and politicians in human rights cases.
It argues that the senior judiciary, both within the United Kingdom and at the European Court of Human Rights in Strasbourg, has unduly expanded the concept of “rights” to the point
where their verdicts now often undermine parliamentary democracy and risk debasing the very concept of human rights. Prisoner voting is a case in point – judges in Strasbourg have
strayed well beyond their remit and have casually trampled on the rights of parliament and the duty of MPs to decide these essentially political questions.
The report recommends that the UK government should enter negotiations with the Council of Europe about reforming the Strasbourg court. If it cannot be made more accountable, more credible
and less activist, with more competent judges doing less and doing it better, then Britain should consider leaving the court’s jurisdiction. The UK would remain a signatory nation to
the ECHR, but decisions like whether to give the vote to serving prisoners would be decided in UK courts alone. Future appellants would no longer have any right to petition the Strasbourg
court. They could take their cases as far as our own Supreme Court, but no further.
In his powerful foreword, Lord Hoffman has broken ranks with the senior judiciary to endorse the view that this is a real problem, that something can be done, and that we should attempt to
“repatriate our law of human rights.” “It is worth a try”, he writes. And voters appear to agree. A YouGov poll shows people favour such cases being
decided in the UK, not by foreign judges sitting in a remote court. When asked where human rights law should ultimately be adjudicated, two thirds say the UK Supreme Court – only 19%
say Strasbourg. Even half of Liberal Democrat supporters, traditionally more supportive of supra-national institutions, prefer our judges to be the final arbiters.
The Government still needs to secure a majority on its own legislation expected before the summer recess. Even a further compromise option to disenfranchise all those above a lower sentence
threshold of six months – distinguishing between those offenders convicted in magistrates and crown courts – might not be enough to secure a Commons majority. Failure then will
cause stalemate. And this issue aside, under the growing confidence of the Strasbourg court this problem is likely to get worse in other areas (particularly terrorism and asylum) if not
addressed soon. Time is ripe for a new constitutional settlement that helps to check judicial activism and ensures that parliament remains sovereign. However the vote goes on Thursday,
this debate is far from over.
Blair Gibbs is the Head of Crime & Justice at Policy Exchange