Writing for Con Home, Davis has constructed an impassioned polemic, decrying the British government’s ‘pusillanimous culture of concession’. Essentially, Jack Straw is making the same argument, albeit with precise procedural insight. He writes (£):
‘But is there some contradiction between my support for the HRA and my criticism of the Strasbourg court’s judgment in this case? Not at all. The reason is to be found in the title of the 1997 White Paper on the Human Rights Bill. It was “Rights Brought Home”. We had been subject to the European Convention on Human Rights and the Strasbourg court for half a century, but our courts and judges had never been able to adjudicate on issues in the convention because it had not been incorporated into UK domestic law.
One fundamental purpose of the Act was, therefore, to bring these rights home, to allow our courts to consider such issues in the round. We were almost the last country in Europe to do this. The former law lord, Lord Hoffman, wrote in 2009 that the HRA could be “a perfectly serviceable British bill of rights”. Not least, we argued when we introduced the HRA, the UK would be better able to benefit from the “margin of appreciation”, the latitude that Strasbourg gives the 47 member states of the Council of Europe to take account of their very different social and political cultures.
It is this expectation that has been confounded by events. Rather, as Lord Hoffmann has spelt out, the court has extended its jurisdiction into areas that go well beyond the treaty obligations on states and the concept of fundamental rights, without any express or implicit agreement for this from member states.
Many countries’ supreme courts are very powerful. Unlike ours, they can strike down primary legislation. But even the most powerful (eg, in the US or Germany) are subject to a democratic override. The people can overturn the effect of decisions, typically by amending their constitutions. The HRA allows UK courts to declare legislation a breach of fundamental rights, but they cannot overturn Acts of Parliament. In the prisoner votes’ case, our courts said that any change was a matter for Parliament. So it is.
But there is no democratic override of Strasbourg decisions; no practical way in which its unilateral extension of jurisdiction can be corrected. It’s right that we should be subject to it on breaches of what everyone understands to be fundamental rights. We signed up to that. But not to telling MPs how to vote on a matter such as prison votes.
Mr Davis’s and my motion respects those treaty obligations. It picks up one of the key criticisms of Strasbourg — that Parliament had had no substantive debate on prison votes — and offers an answer.’ Straw’s examination of the separation of powers omits the role of the elected executive. Though philosophically important, tonight’s parliamentary debate is a vanity: it is the government, not parliament, which must comply with the court or face censure. Downing Street is openly sympathetic to Straw and Davis’ motion, but there is little it can do to maintain an outright ban on prisoner voting, even if ‘rights are brought back home’. To that end, the Attorney General and the Justice Secretary are said to be considering ‘the bare minimum’ compliance in the hope of quelling parliament’s understandable outrage.
PS: As many point out, withholding the franchise in certain cases would not contravene human rights – plenty of co-signatories to the convention do so. The ECHR has asked the government to clarify the legal position on prisoner voting. Straw and Davis’ motion is predicated on the fact that parliament has debated this issue before; and that therefore there is a precedent for the blanket ban. However, the government will have to put a bill before the House. As I understand it, the bill’s wording will effectively be: prisoners have the right to vote with the following exceptions…And there will be so many exceptions that virtually lag gets the vote.
'Going for the bare minimum' is standard procedure for the British government in its dealings with ECHR. In this case, it will satisfy the Court, but may of course leave parliament resentful at being neutred.