Justice Secretary on prisoner voting and disproportionate force against burglars

I have posted before (here and here) on the appointment of Chris Grayling as Lord Chancellor and Justice Secretary. Since his appointment, two major issues that Grayling has had (in one case) and chosen (in another) to deal with are prisoners’ voting rights and the rights of householders to act in self-defence against burglars. Yesterday, Grayling was interviewed on the BBC’s Andrew Marr show and was asked about both of these matters. (The interview can be watched on BBC iPlayer until Saturday 3rd November. The link is to the whole show; the Grayling interview starts around 40 minutes in.)

On prisoner voting, Grayling was (unsurprisingly) ambigious. He acknowledged that, at present, the “reality is that we [the UK] are signed up” to the European Convention on Human Rights, and that there would therefore be consequences if the European Court’s judgment, holding British law in this area to be incompatible with the Convention, were ignored. But pressed by Marr, Grayling did not rule out, in the medium term, the UK’s withdrawal from the ECHR. He reserved his position, indicating that the Conservative Party would bring forward proposals in time for the next election, and implied that those proposals may consist of steps that could not be taken at present thanks to the constraining effect of coalition politics. But looking beyond this period of coalition, Grayling said that the present human rights system “has got to change”.

Ultimately, Grayling’s view seems to be that the European Court of Human Rights has substantially overreached itself by interpreting and applying the Convention in ways that were not intended when the Convention was first drafted. (I have explained elsewhere why it need not follow that this is inappropriate.) Grayling’s perception appears to be that the Convention was intended to address grotesque human rights abuses (he gave the example of imprisonment without a fair trial in gulags in Stalin’s Russia), the implication being that the Court has stretched too far the range of matters that are now treated as unlawful breaches of the Convention.

On householders’ rights to defend themselves against burglars, Grayling defended his proposal to allow “disproportionate force” to be used (as opposed, at present, to “reasonable force”). My colleague, Professor John Spencer, has recently posted a Cambridge Law Faculty Law in Focus video on this subject, in which he suggests that the change proposed by Grayling is based on a misconception of the present legal position – based partly on tabloid misreporting of the notorious Tony Martin case. However, Professor Spencer goes on to argue that other aspects of the law in this area – concerning the ability of wounded burglars (or the families of burglars who are killed) to recover damages from householders and the sentencing of householders who kill burglars. Professor Spencer’s video can be watched below.