Grayling and Cameron must quash votes for prisoners. If they don't, the Commons must do so instead.

By Paul Goodman
^{Follow Paul on Twitter}

12.30pm Update At PMQs, David Cameron has just repeated his opposition to votes for prisoners but said that there may be another vote.  That looks like a free vote, but not a Government bill - even a draft bill. A slapdown for the Attorney-General.

10.45am Update Mr Grieve is this morning suggesting that the Government will seek to introduce votes for some prisoners while also saying that the matter is ultimately one for Parliament.  But since we already know what the Commons thinks, why introduce an unpopular bill that MPs will vote down anyway - further damaging David Cameron's authority? Downing Street must sort this one out - and fast.

Today's Guardian reports that the Conservatives are to bow to the European Court of Human Rights over votes for prisoners.  It claims that the Government is to bring a draft bill to that effect "after the police commissioner elections on 17 November".  The triple aim of such a measure would evidently be to yield to the wishes of the ECHR, avoid the defeat that a bill would meet if introduced on the floor of the Commons, and drag the whole matter out for as long as possible. As the paper notes, "a draft bill might take years to reach the statute book, since it would require wide consultation and allow amendment by a joint committee of both houses".

Well-placed sources in the Justice Department told ConservativeHome yesterday evening that the story is untrue, that Chris Grayling is in charge of the issue, and that he is believed to be inclined neither to bring in a bill nor to grant prisoners the vote.  Downing Street said tautly that "when people go to prison they lose their right to vote and that will remain the case".  But the report is written by the paper's Political Editor, Patrick Wintour, and would not have been run were it not well-sourced.  Leakology is tedious, but the story quotes the views of Liberal Democrat Ministers and claims that policy tensions on the issue are "blue on blue". So the source looks yellow to me.

This is not to say that there are no blue on blue divisions, and here we approach the heart of the matter.  Dominic Grieve, the Attorney General, is quoted as having told Ministers that they must accept the ECHR ruling.  But as the Justice Department source pointed out to this site, Mr Grieve does not have charge over the matter: Mr Grayling does, and he has form on the role of the ECHR.  Only last month, confirming that the Government will appeal against a court ruling that indefinite sentences breach human rights, he pointedly said that "this not an area where I welcome the court seeking to make rulings".

In short, the Attorney General seems to believe that the Government should yield to the ECHR  But the view the Justice Secretary - and by extension the Prime Minister - should take is that the ECHR should yield to Parliament, which has voted overwhelmingly against votes for prisoners.  It may be claimed that the Liberal Democrats would block any such move.  But the beauty of the Guardian story is its indication that "Liberal Democrat ministers still support compliance with the court, but do not want to be seen any longer to be in the vanguard on an issue that is likely to make them deeply unpopular".

It follows that they would be unlikely strongly to resist the arguments made by such Conservatives as Dominic Raab, who "has argued there is practically no danger of a fine by the European court should Britain not introduce votes for prisoners, and absolutely no chance of the UK being kicked out of the Council of Europe".  Essentially, Conservative Cabinet Ministers have an opportunity to make a decision over a disagreement that their agreement on the introduction of a British Bill of Rights barely masks - namely, whether they believe that in principle the view of the ECHR or of Parliament should prevail.

It is far from clear that a British Bill of Rights, once enacted, would have made any difference to the ECHR's view on votes for prisoners.  And it should be noted that a resolution on such a bill is deadlocked - not because Liberal Democrat MPs are resisting it, but because liberal members of the priestly legal class, such as Lord Lester and Baroness Kennedy, are doing so on the Commission set up to consider it. But what is clear is that the Justice Secretary and the Prime Minister between them should unambiguously back the view that MPs themselves have unambiguously already given.

If they do not, those MPs should first make it clear that they will kick any bill to introduce votes for prisoners through the roof of the Commons, and then do so if any such measure is eventually introduced.  They should also point out to Ministers that since the division on votes for prisoners was a free vote - the Government backed down after indications to the contrary, and some PPS's voted against the proposals - the practice should be repeated in the event of a bill: it would, in any event, be impossible to whip.  The emotive point for most voters is that those who have been imprisoned should not have the freedom to vote.  The constitutional point for MPs is that either way, it's a matter for them, not the ECHR.