Category Archives: Constitution and democracy

The Northern Ireland Protocol. Does Johnson’s ‘sensible landing spot’ really exist?

17 May

“There is without question a sensible landing spot in which everyone’s interests are protected. Our shared objective must be to the create the broadest possible cross-community support for a reformed Protocol in 2024.”

So claims Boris Johnson in the peroration of his 2,200-word essay for the Belfast Telegraph setting out his pitch for resolving the row with Brussels and getting Northern Ireland’s political institutions back on their feet. Again.

Is it true? It’s very hard to say, because what looks superficially like a question for a lawyer seems better suited, upon wading through the arguments for long enough, to a theologian.

Political theology

Each side’s technical arguments rest on (or indeed, basically gild) a set of principles, assumptions, and assertions which cannot be empirically resolved by appeals to expertise.

Instead, Ireland and the EU have outmanoeuvred Britain by ‘bargaining with their right brain‘; that is, framing popular understanding of the dispute. (Not least because the UK has, until very recently, not obviously been trying.)

For example, take the claim that Government ‘threatens the peace’ by taking action against the Protocol.

In the scenario laid out by its critics, it would be the EU that set up a hard border (in response to threatened market distortions of which there is no evidence) and terrorists which attacked it. Nonetheless, the full weight of moral culpability in this scenario is widely held to rest on London’s shoulders.

Suffice to say, no volume of clever technical argumentation will dig you out if you accept the bottom of that hole as your starting point.

That the UK are still losing this battle is evident in Johnson’s article, for example where he says that:

“We insisted throughout that there would be no scenario in which a hard border would be allowed to emerge. And we have delivered that 100 per cent, as we said we would, protecting in full the rights that were enshrined in 1998.”

There is no treaty right to an invisible commercial border between Northern Ireland and the Republic, dated to 1998 or any other year. The idea the Belfast Agreement would contain one – and one that would if necessary overrule the free trade portions of the Act of Union, at that – is absurd. The whole thing is a meme.

But London swallowed it hook, line, and sinker, and it has crippled the British negotiating position from the start. (This may not have been entirely accidental.)

Johnson’s essay does mark a belated effort to try and introduce some narratives more useful to the British case, especially with regard to its actual obligations under the Belfast Agreement.

But there seems little point complaining that “some feel that their economic rights as members of the United Kingdom are threatened” when it was his Government that legislated to repeal the economic parts of the Act of Union.

Nor is it obvious how a settlement can be said to treat both sides equally when one side’s priorities remain, in his own words, of “paramount importance” over those of the other.

Landing spot?

The happier side of this dynamic is that if the EU decides it is minded to deal, there will almost certainly be a deal. Brussels has not historically allowed the niceties of its internal rules to stand in its way.

It does not follow, however, that the “sensible landing spot” envisioned by the Prime Minister actually exists, at least not yet.

Sam Lowe, a trade expert and author of the Most Favoured Nation newsletter, has handily compiled a list of the UK’s specific demands. The Institute for Government has also compared a handy side-by-side list of the British and European positions on various points of dispute.

And despite the rhetorical pretence that the Protocol was always the only possible outcome of Brexit, there has to date been some movement in some areas.

The Government’s tactic of unilaterally extending grace periods on items such as chilled meats, for example, has seen them baked into the status quo; Lowe write that: “everyone, including on the EU side, knows that these grace periods and derogation are not going anywhere”.

Likewise, the IfG acknowledges that on medicines the EU has tabled proposals which represent “a significant departure from its original position”.

But London and Brussels remain a long way apart on a lot of issues both economic (VAT, customs) and constitutional (the role of the European Court of Justice).

And as the Institute of Economic Affairs notes in their most recent briefing, even the partial implementation of the current Protocol is creating “significant diversion of trade”, which the Protocol in theory “expressly sought to avoid”.

Tied to the text

Moreover, for now the EU insists that it will not reopen the text of the Protocol.

This is obviously a major barrier to either substantive reform or (perhaps as important, as far as Unionist sentiment is concerned) the appearance of it. Even those on the British side aiming to work within the Protocol, such as Roderick Crawford, concede that the text needs to be at least “amended” in certain areas.

In others, a layman’s reading of the text of the Protocol seems to suggest it could be read any which way. For example Clause 2 of Article 5, which governs whether or not goods entering Northern Ireland should be subject to EU customs, sets out the criteria by which a Joint Committee will draw up a risk assessment. It then concludes:

“In taking any decision pursuant to this paragraph, the Joint Committee shall have regard to the specific circumstances in Northern Ireland.”

That line could mean anything. London could plausibly argue that the Province’s “specific circumstances” justify its bid to reverse the burden of evidence and have goods exempt from EU customs absent a positive determination that they pose a risk to the Single Market. Brussels could argue the opposite.

Leverage

Such vaguery perhaps allows wriggle room for the Protocol to become one of those “living documents” whose seemingly solid provisions melt into air as the moment requires.

But in such cases, they tend only to do so as suits whichever party has the upper hand. The Protocol’s provisions will thus be granite until the EU feels the need to concede something.

This is why the threat of legislation to allow the Government to act unilaterally is potentially so important – and the fact that Johnson and Liz Truss seem to be caught up in a briefing war over it, rather than presenting a united front, so utterly lamentable.

We ended up with the Protocol because Irish and European negotiators consummately outplayed a succession of hapless, culpable, or simply uninterested British counterparts on the Northern Irish question. Nothing about the Government’s swithering over Article 16 since the last election will have convinced them that their opponents have upped their game.

But the key to unlocking a deal almost certainly lies not in some legal gotcha, but in shifting Brussels’ perceptions of the balance of risks.

The threat to the rule of law from left and right

16 May

How parochial our Bill of Rights is compared to the sweeping, modern constitution of Russia. “The pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall,” says the first, taking the reader to the vanished world of the late seventeenth century.

“Fundamental human rights and freedoms are inalienable and shall be enjoyed by everyone since the day of birth,” declares the second: a statement of the obvious in any progressive, liberal democracy.

I draw the contrast, with all its savage irony, to make a point: that the rule of law is guaranteed not by words on paper, but on what people do – on their institutions and culture they create.

The thought applies to the Government and the rule of law.  We know the charge against it: that not so long ago, the challenge to the rule of law came from the left, and that now it comes from the right.

And that it covers everything from the prorogation dispute in the last Parliament, to parties in Downing Street and the threat to break international law in this one.

David Gauke has made a case for this view on this site and Daniel Hannan a case against.  I want to open my own take by conceding Boris Johnson’s weaknesses.

Most politicians pride themselves as being on top of the facts.  Though the Prime Minister can do facts as well as anyone when he puts the work in, the truth is that they bore him.

On the canvas he paints upon, the dazzling colours of hyperbole and metaphor count for much more than the black and white drudgery of facts.

Being fired for making up a quote, pyramids of piffle, late declarations of interest: given the background and his temperament, it’s not surprising that he has become the first Prime Minister to have been fined for breaking the law.

Which makes it all the more important to understand how he comes to hold the post with such a large majority.  Let’s go back for a moment to a turning point in the story: prorogation.

In 2019, John Bercow, then Speaker, made a ruling on proceedings about Brexit against the advice of the then Clerk of the House of Commons, Sir David Natzler, and in defiance of convention, as Bercow himself admitted.

His decision paved the way for Dominic Grieve, Yvette Cooper, Oliver Letwin, Hillary Benn, Nick Boles and company taking control of the Order Paper and the Commons.

Focus for a moment not on what they did, and its rights and wrongs, but how it came about.  Bercow was illustrating my point about how the rule of law is sustained or compromised.

There are few constraints on the Speaker of the Commons precisely because it is assumed that they won’t be needed.

By voting Bercow into office and propping him up, Labour and other MPs lit a constitutional fire.  And it is Dominic Cummings’ way to fight fire with fire.

So the prorogation plan was devised.  Which takes us to the Supreme Court’s ruling that discontinuing the session was unlawful.  Again, I ask you not to take a view on the judgement, but to consider the background.

The Court could have taken the view expressed previously by the Lord Chief Justice – that the prorogation was “inherently political in nature and there are no legal standards against which to [its] legitimacy.”

That it did not reflects a change that has taken place in the courts over the past quarter of a century or so – what Policy Exchange calls the growth of judicial power.

In simple terms, this places a higher premium on universal rights and a lower one on British particulars than was once the case.

Perhaps this was always likely to be so given the Human Rights Act, the development of the European Court of Human Rights, and the effect on the courts of almost 50 years of EU membership.

There may come a time when right and left swap sides on judicial power.  I can imagine a Labour Government governing, as the last one did, with scant regard for individual freedom.

Remember Tony Blair’s plan to detain terror suspects without trial for three months.  In similar circumstances, I can imagine Conservatives reaching for the Human Rights Act and the European Court.

The point I’m making reaches beyond party politics: namely, that the shift that has taken place within “the academy”, as the nexus of senior judges and legal academics is called, about the nature of law in Britain has big implications.

Only a minority seems to believe that, ultimately, Parliament is no longer sovereign: that in the last resort there are certain fundamentals that MPs have no authority to breach through legislation.

But the spectre of “conceptual overreach”, as the impeccably moderate Robert Buckland called it, was real enough to spook him as Lord Chancellor.

He wanted to restore “the very conventional thinking that Parliament makes laws that give power to the executive and are checked by the judiciary”.

So, then: a Speaker who didn’t play by the rules, and judges with an activist take on law.  Now we move from the courts, and the shift in power from elected to unelected, to other arenas.

Sometimes, such changes are for the best, or so it seems.  Consider Gordon Brown’s decision to declare the Bank of England independent, for example.

At the time, he was applauded for curbing the power of politicians to debauch the currency.  Today, the Bank itself is accused of doing exactly that.

You don’t have to believe that Brown’s decision was wrong, at least in principle, to believe that the accrual of power by unelected people raises questions of accountability.

These are multiplied when those responsible for regulating government and Parliament overlap.  And gain the power to police MPs for flouting “anti-racism, inclusion and diversity”, as is proposed.

Or when the police themselves choose to fine – or not to fine – politicians without explaining why, with potentially momentous consequences.

A literal view of the rule of law would be that Johnson or others are only in breach of it if and when they are found to be so by the courts.

I am taking a broader one which argues that the rule of law is compromised by people of all parties and none as much when Speakers break with convention as when Ministers are fined.

As it would be were the consensus about the neutrality of the courts and the impartiality of regulators to break down. We are not America yet, but it could happen.

There, the threat is anarchy – a Left that wants the police defunded and a Right that cries foul when it loses elections.  In Russia, the reality is what follows the breakdown of order: tyranny.

In short, the British consensus about the rule of law is under strain. The Government has a problem with it in the sense that a man has a problem if he catches Covid.  He may recover quickly, and he may not.

Yes, he can make his and others’ condition worse by behaving irresponsibly.  But there is no point in berating the patient without also seeking to understand the illness. It strikes down Speakers when they break rules.

Judges display symptoms if they deny Parliamentary sovereignty. Regulators risk catching it if they grab for more power.  Like Covid, threats to the rule of law are social.  They spread.  There is reaction and counter-reaction.  It is a more profound challenge than most of Johnson’s critics want to understand.

The elections and the Protocol. A United Ireland is no nearer, but Northern Ireland is more unstable.

10 May

Every so often, something happens in Northern Ireland which compels mainland commentators who normally pay the Province no attention to venture a take on its politics. This is unfortunate.

Sinn Fein emerging from last week’s Stormont elections as the largest party in the Assembly is just such an occasion, and has given rise to some truly woeful contributions to the discourse. For example, here’s Piers Morgan:

The main thing this tweet tells us is that prominent amongst the people who do not “fully understand the consequences of Sinn Fein’s success” stands Morgan himself.

But his is merely a lamentably high-profile instance of a common mistake, and it’s a mistake which is not only fundamentally wrong but if anything makes the actual situation in Northern Ireland worse than it needs to be.

With Ulster looking set to remain in the headlines for some time – at least until the hot-take flying column gets bored and moves on – let’s take a look at what actually happened and what the possible implications are.

The results

There is no doubt that Sinn Fein emerging as the largest party in Stormont is a significant moment that will provide a real stress-test of the institutions which have intermittently governed (or at least, presided over) Northern Ireland for the past quarter-century.

But in terms of the actual election, the picture is not what one might expect from excitable headlines. The republicans went into the election with 27 seats and came out with… 27 seats.

Meanwhile the SDLP, the smaller party for voters who like their nationalism unconnected to terrorism, lost four seats and returned only eight MLAs.

That’s an overall loss of four for officially nationalist parties and an overall count 35 MLAs.

(People Before Profit, who designate as ‘Other’ but favour merging with the Republic, held their one.)

On the Unionist side, the Democratic Unionists lost three seats, slipping from 28 to 25. The Ulster Unionists lost one to return nine MLAs, the Traditional Unionist Voice kept their one, two Independent Unionists were returned, and one ex-DUP MLA was returned as a third Independent Unionist.

That’s an overall loss of three seats, and a caucus of 38 MLAs. Which, whilst not great, is still bigger.

So why does Sinn Fein get to nominate the First Minister?

Under the original terms of the Belfast Agreement (which is hallowed except when it’s not), they wouldn’t: that privilege went to the largest designation, Unionist or Nationalist.

However, in 2007 the DUP and Sinn Fein conspired to stitch up the Province’s electoral system, and Peter Hain, then the Northern Irish Secretary, allowed them to do it. They did this by changing the rules in the St Andrews Agreement so that the privilege fell to the largest party.

This meant that instead of voters being able to safely choose between different Unionist and Nationalist options without undermining their own team, as it were, it was suddenly imperative to pile in behind the biggest parties to keep the other lot away from the (purely symbolic) post of First Minister. The UUP and SDLP have predictably suffered since.

Will there be a new Executive?

Under the power-sharing provisions laid down in the Belfast Agreement, both sides need to agree to serve for the devolved government to function. This is why Stormont falls over so often.

At present, the DUP have indicated that they are open to nominating a Deputy (in reality, co-) First Minister… but only if the Government delivers real movement on the Protocol. Which the Government has not yet shown much sign of doing.

The Protocol strikes at the heart of the promises underpinning the Belfast Agreement because, in the eyes of most unionists (even those more inclined to ‘make it work’), it has changed Northern Ireland’s constitutional status vis-à-vis the rest of the United Kingdom, not least by overruling the Act of Union, without a referendum.

It’s proper operation would also have the effect of forcibly re-orienting the Province’s economy away from Britain towards Ireland and the European Union, a fact Michael Gove all but conceded in the Commons. It is worth remembering that the current backlash and instability would be much worse had the Government not subsequently acted to unilaterally extend ‘grace periods’ which protect east/west trade.

This has the potential to be a much more dangerous crisis for Stormont than previous ones because this time, the recalcitrants aren’t holding out for something a unwise Secretary of State looking for good photos and cheap headlines (the witless Hain, et al) can simply hand them in return for a quiet life – at least not without controversial legislation.

Without that change, either the DUP backs down or the Executive stays shut.

What happens then?

Nothing much, at first. Westminster does not take its duty to provide order and good government (as opposed to merely peace) to its citizens in Northern Ireland especially seriously, and in recent times has striven very hard to avoid having to govern the place if it can possibly help it, even if no other government is available.

Under changes negotiated during Julian Smith’s stint at the Northern Ireland Office, the previous Executive will simply stagger on for some weeks (although unless the DUP agree to go back into it, it can’t actually do all that much). When that clock eventually runs out, there will be another election.

If that doesn’t change anything, then at some point the Government will have to implement direct rule, whereby the Province is basically administered by the Secretary of State and the NIO. This would require legislation at Westminster to implement.

So does any of this mean a ‘united Ireland’ is imminent?

No.

In fact, suggesting it does both betrays a fundamental misunderstanding of the Belfast Agreement and, if amplified by foghorns as loud as Morgan, actually undermines the proper function of the devolved settlement in Ulster.

First, one of the consequences of the Agreement is that the constitutional status of Northern Ireland no longer hangs on election results. The Secretary of State will only authorise a referendum if they believe there is clear and consistent evidence the nationalists would win. (There is no such evidence as yet, not even close.)

The parties I dub ‘capital-U Unionist’ have not adapted to this reality, with the DUP in particular having lapsed into a stagnant offer aimed at mobilising their base.

Lacking a compelling alternative in the UUP, more and more broadly pro-UK voters have either stayed at home or, more recently, switched in droves to the Alliance Party, which is formally neutral on the constitution but whose electoral strength in the east of Northern Ireland betrays its liberal unionist roots.

As recently as the 2016 election, the Unionist bloc stood at 55 seats (DUP 38, UUP 16, TUV one) versus a Nationalist bloc of 40 (SF 28, SDLP 12). The makeup of the electorate hasn’t changed fundamentally since then, nor is there been a big swing towards support for ending the Union.

What has happened is that Sinn Fein have done a good job of consolidating their hold on the Nationalist vote, whilst the DUP have alienated a lot of Unionist voters. Where have they gone? In 2016 the Alliance returned eight MLAs; last week it was 17.

This is a healthy development. The keep-them-out politics fostered by St Andrews is toxic, and voters need to feel more comfortable switching parties if Northern Ireland is ever to have a better politics. Politicians on both sides also need to be able to work with the other on day-to-day governance issues without worrying that they’re somehow betraying the cause.

Which is why when clueless commentators declare that this result represents a big step towards breaking up the United Kingdom, they are not just wrong but directly abetting the most regressive elements of Northern Irish politics.

So stop it, please.

Henry Hill: Another litany of SNP failures – when will Westminster dare to take back control?

28 Apr

Another week, another set of stories which reveal how just how badly the Scottish National Party is fairing as an actual government without the white heat of an independence campaign to distract everybody.

First, Nicola Sturgeon has been forced to deny that her administration has engaged in a cover-up after admitting that it had misplaced key documents regarding the awarding of a disastrous ferry contract, according to the Herald.

Glasgow-based Ferguson Marine, tasked with delivering two new vessels to serve Scotland’s island communities, has both wildly overshot its deadline – they were due in 2018 and are expected in 2023 – and seen the overall cost of the project rise by over 150 per cent.

The Scottish Government has also had to save it from administration. Stephen Daisley has a good account of the scandal, including the mind-boggling detail that the First Minister actually ‘launched’ one of these (still-unfinished) ships way back in 2017.

Now the Scottish Daily Express reports that the police could be called in after Jack McConnell, a former First Minister, suggested the ministers may have broken freedom of information laws.

And in the meantime, residents of the Scottish isles will continue to be lumbered with substandard connexions to the mainland – not that their Nationalist MPs will have anything to say about it.

It also means the Scottish Government has to send ferry contracts overseas, opening it up to fresh attacks from the breathtakingly shameless Alex Salmond.

Connoisseurs of SNP scandals will likely be put in mind of the Alex Salmond scandal, where time and again the Scottish Government claimed to have provided all relevant documents before having more dragged out of it (if you want more detail, I recommend the very readable Break-Up).

And this isn’t even the only business scandal to beset Sturgeon and her ministers this week. According to the Scotsman, the Scottish Government may have breached state aid rules after offering a company a £586m guarantee in exchange for just £162m in securities. (If you don’t have a subscription, Conor Matchett has the top lines here.)

Just as with Ferguson Marine, this venture was undertaken to prop up one of the remnants of Scotland’s heavy-industrial heyday, in this case the Lochaber smelter; the latest revelations apparently come on the day Liberty Steel’s offices, in Scotland and elsewhere, were raided by the Serious Fraud Office.

There was also another defeat over documents after the Scottish Government lost a freedom-of-information battle over the legal advice it has received on the question of a second referendum on independence.

And we must not forget that this morning, the Nationalists had to abandon the deadline for the census in Scotland after hundreds of thousands of people had not filled it in. There seem to be a lot of potential reasons for this (none good), but either way it will have serious consequences for state policy which uses the data.

The Telegraph points out that this fiasco also calls into question the wisdom of the SNP’s decision to delay conducting the census by a year (apart from the obvious reason of furthering their strategy of ‘data divergence’ by breaking up a vital UK-wide dataset, of course).

Anything else… oh yes: the Scottish Sun reports that the SNP are under renewed pressure over their care homes scandal after the policy of discharging untested or Covid-positive patients into care homes was ruled unlawful in England. I think that’s it for this week.

This litany of failures raises once again the question of when the Government will accept that Westminster should play a stronger role in ensuring accountability and upholding good government in every part of the country.

One doesn’t have to be a die-hard devosceptic to see that there is a very strong case for the census, the foundation stone of any country’s national statistics and a vital basis for policy, should be conducted on a national basis. Even in countries such as Canada, where the provinces actually have their own statistical authorities, there aren’t multiple censuses.

Perhaps this will be a deviation from the historic way of doing things; certainly that is what those who keep insisting the United Kingdom is a ‘Union state’ will claim.

But even so, there is a very clear difference between a harmless bureaucratic oddity in a system overseen by one government and having a devolved government controlled by separatists actively determining the timing and the wording.

Likewise, given that British money is redistributed round the UK via the Barnett Formula, why shouldn’t the Government be prepared to step in when it is grossly misspent – at the very least, to set up a proper, independent inquiry into what happened with those ferry contracts?

And given all these disasters in areas for which the Scottish Government is actually responsible, it might well give proper consideration to a Bill being drafted by a Labour peer which would give the Treasury a veto over devolved spending in non-devolved areas.

…oh and before you go, there was one fun little example of SNP incompetence I missed: here’s Euan McColm describing the unfortunate moment a Nationalist politician was required to think on his feet after the MSP meant to open a debate didn’t turn up:

“What followed was excruciatingly embarrassing. Coffey stood and, displaying a breathtaking inability to think on his feet, proceeded to deliver his closing speech. He giggled as he described a debate that had not yet taken place.”

I mean Jesus.

Politicians, not officials, are responsible for judging whether the Prime Minister’s behaviour is acceptable

21 Apr

According to Peter Hennessy, we are in “the most severe constitutional crisis involving a Prime Minister that I can remember”.

Hennessy, born in 1947, touches nothing that he does not adorn. He is a witty, erudite and penetrating historian of modern British politics, who in 2010 was elevated to the House of Lords, where he sits as a cross bencher, as Baron Hennessy of Nympsfield.

So Hennessy’s denunciation on Sunday of Boris Johnson on Broadcasting House, which begins at minute 34 of this recording, attracted considerable attention. He called the Prime Minister:

“…the great debaser in modern times of decency in public and political life and of our constitutional conventions, our very system of government.”

After giving an account of Johnson’s statement at Chequers on 12 April about the Fixed Penalty Notice imposed by the Metropolitan Police, Hennessy went on:

“The Prime Minister sealed his place in British history as the first lawbreaker to have occupied the premiership, an office he has sullied like no other, turning it into an adventure playground for one man’s narcissistic vanity. Boris Johnson has broken the law, misled Parliament, and has in effect shredded the Ministerial Code, which is a  crucial part of the spinal cord of the Constitution.”

All this is questionable, but the only part I wish to question here is the last bit, about the Ministerial Code.

Authorities on the British Constitution, of which Hennessy is unquestionably one, tend to regard any breach of the Ministerial Code as an offence which merits the severest sanction.

They regret that the Prime Minister is the arbiter of whether the Ministerial Code has been broken: Hennessy says this is the “the great weakness of the system”.

They also object that only the Prime Minister can order an investigation into whether the Code has been broken. The Institute for Government is among those urging that Lord Geidt, the Independent Adviser on Ministers’ Interests, should have the right to commence investigations of suspected breaches.

Members of the official class treat this proposition as self-evidently true. Rules, in their view, are made to be kept, and the guardians of the rules should be senior members of the official class.

But were it ever to be adopted, this reform would have the catastrophic effect of undermining political accountability.

The Prime Minister would no longer be responsible for deciding who will serve as a minister, and who to back or sack when it is alleged (as often happens) that a minister has offended against the Ministerial Code.

Let us glance at the Code for a moment. It is an odd mixture of pious aspiration and necessary practical guidance on what, for example, ministers should do about their financial interests.

In the fourth paragraph, we find the Prime Minister declaring that there must be “no leaking”. How many ministers would survive the strict enforcement of this clause?

And how many political journalists have never profited, and delighted to profit, from breaches of this part of the Ministerial Code? And do we really wish to return to the deep secrecy with which the British state once sought to cover up its incompetence?

Not long ago, a test case arose. Priti Patel, the Home Secretary, was accused of bullying. Sir Alex Allan, the Independent Adviser on Ministers’ Interests, was called in, and in November 2020 his ruling was published:

“My advice is that the Home Secretary has not consistently met the high standards required by the Ministerial Code of treating her civil servants with consideration and respect. Her approach on occasions has amounted to behaviour that can be
described as bullying in terms of the impact felt by individuals. To that extent her behaviour has been in breach of the Ministerial Code, even if unintentionally.

“This conclusion needs to be seen in context. There is no evidence that she was aware of the impact of her behaviour, and no feedback was given to her at the time. The high pressure and demands of the role, in the Home Office, coupled with the need for more supportive leadership from top of the department has clearly been a contributory factor. In particular, I note the finding of different and more positive behaviour since these issues were raised with her.”

What should be done? This was a political decision. The United Kingdom and the European Union were approaching, under great pressure, the decisive moment in the negotiation about their future trading arrangements.

If Johnson had sacked Patel – a devout Eurosceptic – this would undoubtedly have been portrayed as the British Government starting to fall apart, and there would have been a greater danger either of reaching a less favourable settlement with Brussels, or of reaching no settlement at all.

What was the Prime Minister to do? He had to weigh up many different factors, and there was no easy answer. This was ultimately a question of political judgment, for which he would be held accountable. He stood by Patel, and Sir Alex Allan resigned.

Those who elevate obedience to the Ministerial Code above all other considerations fail to see how difficult, and how political, such judgments are.

In July 2018, three days after resigning from the post of Foreign Secretary, Johnson signed a new contract with the Daily Telegraph to write a weekly column, for which he was to be paid about £250,000 a year.

The Advisory Committee On Business Activities (ACOBA) said this was “unacceptable”: according to the Ministerial Code, he should have consulted the committee first about any paid employment he took in the two years after leaving the government, and former ministers were also required to observe a three-month cooling off period before they accepted any paid work.

Johnson got away with breaking the Code. From a strictly official point of view, he ought not to have got away with breaking it.

But as a politician, one of his selling points is that he believes rules are made to be broken. To the official mind, this attitude is unacceptable.

In reality, however, a degree of flexibility is sometimes required. One of the glories of our Constitution is that is allows for such flexibility, because not all of it has been written down.

Prigs and pedants who suppose themselves brilliant enough to draw up rules which will cover every eventuality cannot see that in a free and democratic country, a degree of latitude, even of uncertainty, is an advantage rather than a scandal.

Ultimate responsibility should rest with elected politicians, not with unelected officials.

The acceptability of Johnson’s conduct will be decided by Conservative MPs, who in turn will consult public opinion – which is sometimes not fully aligned with the Ministerial Code.

Henry Hill: Tories attack other parties for propping up SNP councils as local campaign heats up

14 Apr

Liberal Democrats ‘open’ to pact with Tories to oust Nats in Edinburgh

Alex Cole-Hamilton, the leader of the Scottish Liberal Democrats, has said that his party could support an “alliance” with the Conservatives to take control of Edinburgh Council.

The Daily Record reports that whilst he won’t ban local Lib Dem groups from reaching agreements with the SNP, he has ruled out propped up “failing” Nationalist leadership in the capital and in Glasgow.

As the local election campaigns head up, the Tories are trying to highlight examples of other parties collaborating with the Nationalists in order to try and solidify the pro-UK vote behind themselves.

Earlier this week, Ruth Davidson claimed that Labour councillors would “help” their Nationalist counterparts nod through controversial diktats from Bute House, pointing out that the party is in coalition with the SNP on six councils.

This prompted both Sir Keir Starmer and Anas Sarwar, Labour’s leader in Scotland, to speak out against formal coalitions with Nicola Sturgeon’s party.

Starmer in particular will be wary of the Conservatives reviving their very effective 2015 campaign against Ed Miliband, which painted a picture of a minority Labour government in the pocket of Alex Salmond.

And speaking of the SNP…

First Minister likened to Trump after barring press from campaign launch

Scottish print media are up in arms after Sturgeon barred them from the launch of the Nationalists’ local election campaign. According to the Scotsman, only broadcasters such as the BBC and STV welcome at what an SNP spokesman branded “not a typical launch event”.

This decision is especially baffling in light of one detail unearthed as part of an excellent recent investigation into the Nationalists’ ‘secret state’ by the Spectator:

“The Scottish government’s 175 communications staff dwarf the BBC’s 34 reporters, meaning that even the publicly funded broadcasters have one person asking questions for every five who answer them. Remarkably, the bill for Holyrood’s press officers and special advisers has increased by 50 per cent since 2018, despite newspaper sales halving since the SNP came to power.”

Nor is Scotland the only part of the kingdom suffering for Westminster’s hands-off approach to the devolved territories – as I noted in the Critic, Northern Ireland is paying a heavy price for successive governments’ refusal to take responsibility for good government in the Province.

In other news, a member of the First Minister’s cabinet has likened opponents of gender self-ID laws to antisemites. Lorna Slater, a member of the Scottish Greens whom Sturgeon brought into government last year, alleged opponents of her plans were funded by “certain right-wing American groups”.

The First Minister is also set to increase Scotland’s constitutional divergence from the rest of the United Kingdom by giving 16-year-olds the right to stand for election to the Scottish Parliament.

Robert Halfon: Why we shouldn’t try to ban obnoxious protesters from outside Parliament

23 Mar

Robert Halfon is MP for Harlow, a former Conservative Party Deputy Chairman, Chair of the Education Select Committee and President of Conservative Workers and Trade Unionists.

Many, many moons ago, I had the pleasure of being employed as Michael Fabricant’s (otherwise known as ‘Fabbers’) researcher. One could not hope for a kinder boss under which to cut some very junior parliamentary teeth.

One of the first pieces of research I ever did was when I worked with Michael on a House of Commons Speech in 1992, on the forces against liberalisation in Russia. Quite topical, given the awful current events. In fact, I think he only got annoyed with me once – and that was due to my completely incompetent map-reading, when we were trying to visit his Secretary who was in hospital with a broken leg. Sadly, for all involved, car GPS had not yet been invented.

So it grieves me to come out publicly against Fabbers’ recent letter to the Speaker – as recently highlighted by Guido Fawkes – demanding the removal of Steve Bray from the precincts of Westminster.

Do I agree with Bray? Absolutely not. Do I approve of his activities? Of course I don’t. Does he suck up to MPs from the left and fail to ever challenge opposition MPs and their failings? Quelle surprise. Do I find him annoying? Who doesn’t?

But, I actually love the fact that we live in such a vibrant democracy, that our Parliament is so accessible and such an individual (like the late Brian Haw) is permitted to scream at all of us, morning, noon, and night. Those people watching Britain from afar can but marvel that Bray can shriek at ministers close-up as they walk to work.

His attendance at the Tory Spring Party Conference in Blackpool was quite a spectacle to behold, and at least kept the delegates entertained as they walked through to the conference venue.

I remember when I once had to do a live interview with Sky News on College Green with Bray screaming on his ginormous megaphone, with his trademark, ‘Stop Brexit’. By God, did I have to concentrate without messing up, and probably did a better interview because of it. Perhaps his services should be used for media training.

I once was at a meeting with David Cameron who complained that a whole load of demonstrators in Whitehall used to blast out music and drums in the wee early hours, the noise reaching Downing Street. I thought at the time, how remarkable it was that only in Britain, would such an activity be permitted just a few yards from the Prime Minister’s residence. The other day, I was wondering where the almost twenty-four hour bagpipe man on Westminster Bridge had gone. Life is not quite the same without him. A bit quieter perhaps.

In some countries such activities would, at best, see the perpetrators thrown into jail. At worst, they might never be seen again.

Far better to take on Bray and his ilk than ban him. After all, the Lee Anderson MP v Steve Bray bouts are now a required box office viewing. It is like watching the Rocky Balboa films all over again – but better. All we need is Eye of the Tiger, playing in the background. David Davies gives his money’s worth too. Conor Burns has not done too badly either.

My friend Michael writes in his letter to the Speaker: “Can you imagine this behaviour being allowed in Paris or Washington?”

But that line of argument is entirely wrong. The fact that this behaviour may not be allowed in and around other parliaments, does not mean we should follow their example. The stronger our parliamentary democracy is – having developed and evolved over many hundreds of years – the more we should allow these eccentrics to do whatever they want to do. Just because a fly is in the ointment, it doesn’t stop the medicine from working.

If the Right are to speak out and act against cancel culture, then it would be wrong to start cancelling people we disagree with – even if they are a nuisance. Far better to challenge than cancel.

(However, if that nuisance becomes harassment and transmogrified into violence, then of course, it is a different story.)

So I say, let Bray stay and carry on with his extraordinarily annoying activities. He might be crude and rude. But he certainly makes Westminster a livelier place. If we have to ban a man with a top hat screaming down a giant silver cone to parliamentarians, it is the political class that will have shown weakness.

Ministers are right to protect politicians’ individual freedom against institutional power

22 Mar

Earlier this month, we looked at why some Conservative MPs remain determined to overhaul Parliament’s disciplinary and HR procedures, despite the total disaster that was the Government’s previous bid to do this during the Owen Paterson affair.

One thing we noted at the time was that whilst there do on the surface seem to be at least some solid arguments for at least reviewing these practices, some MPs were playing with fire by demanding procedures more in line with what one might expect to find in an ordinary, commercial workplace.

Specifically, some complain that the punishments imposed by the Parliamentary Commissioner for Standards – forcing someone to apologise to the House, for example – are completely out of the ordinary, especially as Hansard is forever. Few other employees are expected to stand up and recant to, say, a shareholder meeting or via a company-wide email. However, as we noted then:

“…any system will have to reflect the unique role of MPs as elected representatives. They are not mere employees of the House, and their status necessarily means that they must have more leeway in certain areas than a normal employee might expect.”

Fortunately, the Government seems to grasp this. In a written statement issued last week Michael Ellis, the Cabinet Office minister, spelled out the same concerns about proposals to bind MPs to an expansive new code of conduct:

“…the Government has underlined the importance of protecting elected representatives’ rights to exercise free speech within the law. The Government expresses concern that some of the proposed changes to the Commons Code of Conduct could have a chilling effect on Members commenting on contentious matters of public policy.”

Ellis goes on to specifically note that: “Free speech within the law can sometimes involve the expression of political views that some may find offensive.”

On the same day, the Government published a letter from Kemi Badenoch which pushed a similar line in the context of local government. In response to a proposal to allow local authorities to suspend councillors, she writes:

“It would be undesirable to have a government quango to police the free speech of councillors; it would be equally undesirable to have a council body (appointed by councillors, and/or made up of councillors) sitting in judgment on the political comments of fellow councillors.”

In a normal workplace, the HR system is backed by the full might of the employer, which enjoys great power over the employee to impose things such as corporate codes of conduct and to enforce its specific commercial objectives.

Politicians could not properly fulfil their function with the institution of Parliament (or its equivalent, such as a local authority) wielding such power over them. Any system for policing politicians therefore has to tread a fine line between preventing improper and abusive behaviour, whilst allowing much greater lassitude on questions of principle and speech than most systems afford.

The Government is right to safeguard these privileges, and MPs should think twice before bargaining them away.

Henry Hill: Frost’s proposal to unlock the Protocol negotiations. Has London given Brussels reason to bite?

17 Mar

In a recent Churchill Lecture to the Europainstitut at Zürich University, David Frost suggested that the UK take it off the table in exchange for the EU committing to renegotiate the Protocol.

He also warned that if this didn’t happen then London might actually end up triggering it, and outlined what this would entail – cue the predictable pearl-clutching in the usual quarters, how dare a British politician take a view on Northern Ireland, etc.

However, his speech comes as the Government backs away yet again from taking any action. The timing is awkward; Frost proposes taking Article 16 off the table just as the Government lets another internal deadline go by without triggering it.

Admittedly the immediate grounds for backing off are much stronger this time, with the Russo-Ukrainian war putting a high premium on a Euro-British détente.

Yet the broader context is that ministers have now more than once talked up some sort of deadline for the negotiations, only to let it sail past, whilst the fundamentals – that London’s red lines and Brussels’ don’t overlap – haven’t changed.

Little wonder either that Unionists in Ulster are losing faith that action will be taken, especially with the Treasury unhelpfully trying (another bit of bad timing) to carve the Province out of old customs legislation.

Regardless, the decision to hold fire once again means the Protocol is likely to dominate the upcoming Stormont elections, which both London and Dublin had been keen to avoid, and is unlikely to help with Stormont’s stability over the next few months. Which brings us back to Frost’s speech, wherein he says:

“On the EU side, it means getting real about a Northern Ireland Protocol that is now unworkable because of the events of last year. If the Protocol isn’t redone then the poison between us will remain. Northern Irish politics is in a downward spiral that is shaking the foundations of the Belfast Good Friday Agreement and the peace process. It’s in everyone’s interests to deal with that, and the EU will not escape its share of the responsibility if things go wrong.”

On the UK side, he suggests several moves the Government could make to try and induce the Europeans to act. First, as mentioned above, would be to take Article 16 off the table “for now”. Second, taking a more generous approach to “mobility issues” facing tourists, musicians, and young people post-Brexit. Third, engage in finding a new way to cooperate on security issues. He then warns:

“If we can’t put something like this together, I can’t see how we will avoid Article 16 to stabilise the situation in Northern Ireland, and things will remain fractious. But more importantly we will then come to a difficult moment in 2024 when three things happen – the consent vote on the Protocol, the decision whether to invoke the Article 411 rebalancing clause, and, probably, the UK General Election.”

An optimistic assessment of what’s going on here is that Frost is simply continuing the strategy he pursued when he was in charge of the negotiations: making the British position look as reasonable as possible, in order to maximise the chances of London winning the inevitable arbitration over Article 16. A pessimistic assessment would simply note that the date of reckoning seems to have been pushed all the way back to 2024.

Which brings us back to what seems to be the persistent problem with the Government’s approach to the negotiations: taking Article 16 off the table is only a useful bargaining chip if the other side believe you’ll use it. And London has given Brussels little reason, thus far, to believe it will.