Chris Grayling confirms that he may not be able to vote against prisoner voting

By Matthew Barrett
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Chris Grayling, the Justice Secretary, appeared on the Sunday Politics programme today. His appearance mostly concerned the question of whether he would be a "tough" Justice Secretary on issues like giving out prison sentences for knife crimes and stopping mere cautions being used for serious sexual offenders.

However, the second, shorter topic of discussion was just as important: Andrew Neil asked Mr Grayling whether he would be able to vote for prisoners not to have the vote. As I wrote last month, the Government is preparing a Bill which would give the Commons the option of vote for three options on prisoner votes:

1. Votes for prisoners who've been imprisoned for four years or less
2. Votes for prisoners who've been imprisoned for six months or less
3. No votes for prisoners at all

The first two of the three options are designed to give Parliament the option to comply with rulings of the European courts, while the third gives Parliament the option of maintaining the status quo, which Europe considers to be an unacceptable - indeed, illegal - breach of the court's rulings.

Mr Grayling, as the Lord Chancellor and a Law Officer (although refreshingly not actually a lawyer by profession), is not allowed to advocate anything which could be construed as breaking the law. Therefore he is virtually unable to advocate voting for the third option before Parliament. At the very least, he would have to take legal advice on his position, he told the programme. He explained:

"My position is particularly different in this because I am Lord Chancellor. I have sworn an oath to uphold the law. The requirement upon the Government and Government ministers is very clear to implement ruling of European court. However, Parliament has the right to overrule the European Court of Human Rights if it wants to do so. It has to accept that there will be a political consequence in doing that but it has the right to do so. When we come to the the point of the vote I will take appropriate legal advice."

While I had previously said that Mr Grayling and Dominic Grieve, the Attorney General, might be bound to vote, or not vote, a certain way because of their legal positions, I had not accounted for the possibility of the Prime Minister and other Ministers not being able to vote in a certain way. Mr Grayling said that David Cameron "would have to decide at the time how he wants Ministers to vote", which sounds rather opaque, but underlines the legal and parliamentary difficulties of a problem like prisoner voting - all of which is likely to further annoy Tory front and backbenchers.