Blair Gibbs: Britain is being held prisoner by rulings of Europe

Conservative and Labour MPs have been granted a free vote on whether to support the motion on prisoner voting that reasserts the legality of our existing blanket ban, and thereby explicitly challenges the verdict of the European Court of Human Rights in Strasbourg.

The real news will not be how many politicians oppose the will of the Strasbourg justices, but which MPs – aside from abstaining Ministers and Shadow Ministers – choose to endorse it.

MPs who support granting the votes to convicted criminals is one thing, changing British laws in this way just because a court ruled in favour of an axe killer is guaranteed to upset even the most liberal constituents. Large majorities of the British public are opposed to prisoners voting on principle – a good explanation for why the current ban has lasted since 1870.

MPs preparing to oppose Strasbourg in the debate are now armed with a powerful intellectual case to support their position.

In a new Policy Exchange report published this week, the political scientist Michael Pinto-Duschinsky explored in depth the whole issue of human rights law, parliamentary democracy and the growing power and influence of the judiciary.

This is the first serious study in many years which explores how the UK can address the growing problem of conflicts between judges and politicians in human rights cases. Major constitutional reforms, including the passage of the Human Rights Act and the creation of a Supreme Court have fundamentally altered the legal and political landscape in the United Kingdom.

Pinto-Duschinsky argues that judges in a democracy have an essential role in protecting core human rights. However, the senior judiciary, both within the United Kingdom and 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 role of MPs to decide these essentially political questions.

A key proposal is 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 and establishing the UK Supreme Court as the final court of appeal in human rights cases.

Under such a scenario 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 – like the convicted axe killer John Hirst whose 2005 appeal began this whole sorry saga – would no longer have any right to petition the Strasbourg court. They could take their cases as far as our own Supreme Court, and no further. Such an arrangement works well for other Common Law countries like Canada and Australia with their own supreme courts.

In his powerful foreword to the report, the former Law Lord, Lord Hoffmann, has broken ranks with the senior judiciary in the UK to endorse the view that something can be done.

He writes: “In the last few years, human rights have become, like health and safety, a byword for foolish decisions by courts and administrators … [And] the very concept of human rights is being trivialized by silly interpretations of grand ideas.”

Hoffmann supports the interpretation that Strasbourg has grown too powerful: “The Strasbourg court had taken upon itself an extraordinary power to micromanage the legal systems of the Member States of the Council of Europe (or at any rate those which pay attention to its decisions)… The result has been that UK judges have reached decisions, sometimes with regret and sometimes with enthusiasm, which would have astonished those who agreed to our accession to the Convention in 1950.”

Hoffmann endorses the author’s argument that we should attempt to “repatriate our law of human rights”. “It is worth a try,” he writes.

The call is a timely one. A YouGov poll commissioned by Policy Exchange shows the strong public support for this approach. Voters 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 per cent say Strasbourg. Even half of Liberal Democrat supporters, traditionally more supportive of supra-national institutions, prefer our judges to be the final arbiters.

Irrespective of today’s outcome, this debate is far from over. The Government still needs to secure a majority on its own legislation to amend the 1983 Representation of the People’s Act – that is expected before the summer recess. And this issue aside, under the growing confidence of the Strasbourg court, this problem is likely to get worse in other areas – terrorism, asylum, welfare – if not addressed soon.

One option open to the Government might be to make a virtue of necessity – use the stalemate caused by the votes for prisoners issue to raise the whole subject in future Council of Europe summits to see what appetite there is among other member states to look seriously at reforming the Strasbourg court. That would take skilled diplomacy and political drive from the top, but it could be worth it. We are not the only country in this position.

The prospect of prisoners voting – against the express wishes of the public and our own elected parliament – has brought home to people why these judicial decisions matter. We need a new constitutional settlement that helps to check judicial activism and ensures that parliament remains sovereign. Only in that way can Parliamentary democracy – and public faith in human rights – begin to be restored.