Have lawyers really “cleared” the government to defy Strasbourg over prisoners’ votes?

Today the Times is running a (£) story headlined:

Cameron is cleared to defy Europe on human rights

The story is based on an eight-page memo prepared for Nick Clegg that Sam Coates has published on Twitter:

[blackbirdpie url=”[blackbirdpie url=”http://twitter.com/SamCoatesTimes/status/38568272400097280″]

It’s not clear who the advice is from or to (although its file name beginning “mojlegaladvice …” suggests the Times thinks it originates from the Ministry of Justice). Nor does it look to me like legal advice prepared by a government lawyer. It looks more like a policy submission from civil servants referring to legal advice. It refers at a couple of points to advice from the Attorney General.

The memo says among other things that, if the UK refused to implement the Hirst judgment on prison votes and refused to pay any compensation ordered by the European Court of Human Rights, the possible sanctions against it would be political rather than legal. The UK would be subject to diplomatic criticism, and in theory to expulsion from the Council of Europe, though this would be unlikely. The UK would lose credibility on human rights internationally. This is the main point the Times takes from the memo.

But none of that is either a revelation, or news. The European Court can order the UK to pay compensation in individual cases brought by prisoners, and the Committee of Ministers of the Council of Europe can refer the UK back to the court to answer for any general refusal to give prisoners the vote. But ultimately, the only way of enforcing any legal obligation, if it’s being flouted, is the physical ability to seize people or property. The Council of Europe cannot do either, so in the end, the sanctions available to it it are political. This is obvious. No competent legal or policy advice could say anything else.

The second thing to say is that the advice certainly does not “clear” the Prime Minister or the government to defy the European Court of Human Rights. On the contrary, the document at paragraph 5 draws attention to paragraph 1.2 of the ministerial code, which refers to

the overarching duty on Ministers to comply with the law including international law and treaty obligations

and later at paragraph 14 makes clear that a deliberate policy of defiance could not be reconciled with the ministerial code. It also emphasises the negative international consequences of defiance, and even flags up the theoretical risk of explusion from the EU.

But there is real news contained in the leaked document.

First, it tells us that the government has referred the Greens and MT judgment to the Grand Chamber of the European Court of Human Rights. That step potentially delays the deadline for implementation of Hirst, and, if the Grand Chamber accepts the case, gives the UK a last chance to try to get the court to change its mind on prisoners’ votes or at least depart from the very invasive approach it took in the Frodl and Scoppola judgments.

Second, the memo tells us the government fears the potential for prisoners to use EU law to force the government to allow them to vote in the European Parliament elections in 2014. That seems to me an entirely realistic fear given that human rights as guaranteed by the ECHR are enshrined as “general principles” of EU law, and so can be enforced through it, and that EU law, unlike international human rights law itself, and so long as we remain in the EU, overrides the wishes of Parliament in our own courts. This may be the potential legal issue that enables Eurosceptics to link the issue of prisoners’ votes to EU membership itself.

Third, it tells us that the Attorney General has advised (presumably both the Attorney and the Advocate General for Scotland in fact, given that this is a UK-wide issue) on the approach to be taken by the government in introducing legislation on this, and that he has advised that a failed but genuine attempt by the government to introduce Hirst-compliant legislation – at least if some sort of minor change from the current law is accepted by Parliament – might be enough to satisfy the Strasbourg court that the UK had met its obligations.