Johnson should be deeply wary of opening Pandora’s Box with a constitutional commission

23 Jan

With the Scottish elections still months away, and the possibility of their being postponed further, one cannot say for certain that there will be a separatist majority in Holyrood later this year.

But despite the fact that the scandal engulfing Nicola Sturgeon seems to be growing more serious by the day, a Nationalist victory – with or without the help of the Greens – remains the most likely outcome for now. Which means that Boris Johnson will eventually come under fresh pressure over granting a second referendum on independence.

Will he? Many people believe so. They argue that the pressure to do so after a separatist victory at a fresh election would be “irresistible”. And in light of unionism’s historical conduct, which has strongly tended towards whatever course of action stops the Nationalists calling them names, however briefly, one can see why they’re confident.

But the Prime Minister apparently insists he won’t, and the logic for that is equally strong. As Scottish commentator Tom Gordon has spelled out, Johnson has no incentive to call a referendum he thinks he will lose. The easiest way to avoid being the Prime Minister who lost the Union is to kick that can onto his successor’s lawn. As for ‘pressure’, it’s meaningless you have the means to exert it and the SNP have few means to exert it against a national government with a strong majority.

Yet there is growing recognition that Johnson can’t ‘just’ say no, regardless of whatever George Osborne thinks. A refusal buys time, but it has to be part of a broader strategy which makes use of that time to bolster the Union.

What might that be? According to James Forsyth, writing in yesterday’s Times, the latest proposal is to justify delay by calling a ‘deep’ commission not just into Scotland’s place in the Union, but the entire British constitution. That would allow ministers to explain that Scots should not vote again until they know on what new terms the Union might be available.

On that strictly tactical level, it might work. A substantial share of the devocratic Greek chorus are fixated on the constitution and would certainly enjoy such a circus, especially if it were coupled with the promise of yet more money. It would be panem et circenses, of a very particular kind.

But a Government which has otherwise demonstrated an unusual fidelity to the traditional foundations of the constitution – as evinced by the purist approach adopted to repealing the Fixed-term Parliaments Act – ought to be extremely wary about opening this particular Pandora’s Box. Here are a few of the potential dangers.

1) A field day for the usual suspects

Advocates of every hoary old reform would immediately set to work arguing that the Union could be saved if only the Government adopted their One Weird Trick™.

Ministers would be besieged by calls to adopt proportional representation, replace the House of Lords with a ‘Senate of the Nations and Regions’, replace British decision-making with balkanised inter-Home Nations horse trading (mediated by the courts), and even go the whole hog and codify the constitution. And if people like Carwyn Jones get their way, there might even be an attempt to abolish the foundational principle of parliamentary sovereignty itself.

Obviously a majority government can and should reject any and all of these bad ideas, and doubtless there would be an heroic effort by conservative academics and think-tanks to inject some more interesting thinking into that dreary litany.

But Johnson should be wary of miring himself in a series of self-inflicted rows over such topics when he wants to be focusing on building back from the pandemic, levelling up the new areas he won to the Conservative cause in 2019, and generally delivering on issues that ordinary voters actually care about.

2) Old thinking in a new shape

Advocates of a ‘federal Britain’, whatever they mean by that, like to claim that it is fundamentally different to old-fashioned ‘more powers’ devolution because it is about reform of the centre.

But as I’ve argued previously, this can be a distinction without a meaningful difference when it comes to saving the UK. Balkanising British-level decision-making might not give the devolved governments more powers, but it does give them more power to foul the operation of the Union and even more platforms from which to project their grievances.

Unionists need to break out of the one-way, ratchet thinking that casts devolution as a ‘process’ when talking about weakening the centre, but an immutable ‘settlement’ when discussing concessions already made to the devocrats. We have now had devolution in place for 20 years, and it is perfectly reasonable to include a critical reassessment of powers already devolved in any overall constitutional overhaul.

To date, reformers have ducked this fight. Outfits such as the Constitution Reform Group which started out talking about a zero-based approach to the constitution inevitably conclude that the existing powers of the devolved legislatures should remain in place to the last dot on the last i.

Fortunately, this Government seems to be made of sterner stuff. It’s determination to correct some of Theresa May’s mistakes via passing the UK Internal Market Act suggests that ministers have finally broken the Whitehall omertà on restoring the proper powers of the central state. But if any commission is not prepared to do this – and endure the inevitable cries of being an ‘assault on the devolution settlement’ – it will not be fit for purpose and should not be undertaken. It would just be ‘more powers’ in a new shape.

3) A counter-productive distraction

It is an article of faith amongst enthusiasts for constitutional reform that there has to be a ‘solution’ to Scottish separatism, and that the solution lies in their field and can thus be found with sufficient application of their own cleverness to the problem.

Rather than buying into this, the Prime Minister should do the SNP the courtesy of taking them at their word. This battle is not a good-faith dispute about how the United Kingdom is governed. It is at heart a zero-sum battle between people who want the United Kingdom to exist, and people who don’t.

Most voters do not care about the detail of the constitution. Ministers should weigh very carefully the theoretical gains of any reform against the much more concrete danger of the increased opportunities it will give hostile politicians to undermine the Union. The more you make the proper functioning of the UK dependent on the active cooperation of the devocrats, the less likely it is that the UK will work.

And it is ultimately only by making the Union work that the Government can really defend it. In his piece Forsyth sets out some of the new measures ministers are looking at on this front, such as “more drug treatment beds in Dundee or more ferries to the islands”, then writes:

“It’s unclear how much of this, if any, would work. The UK’s procurement of vaccines means Scotland has a greater share of its population covered than any country in continental Europe. But there’s no sign of a Union dividend in the polls yet.

But this misunderstands the scale of the challenge. The UKIM Act is the first step towards rebuilding the proper position of the British national government after two decades of continual erosion via fire-and-forget devolution. If this strategy were going to succeed overnight, it would be so essential to hold off on granting another referendum.

But a truly effective (‘deep’) cultural and structural strategy will take time to deliver, not to mention huge reserves of energy and imagination. Which is why Johnson should think very carefully before squandering his energies fighting the pointless, defensive battles an ill-judged commission will invite. And if he does choose to set one up, he could have a good idea of what it’s going to say before he does.

Why the Government is under pressure to confirm the date of the local elections

9 Jan

Last month, we looked at the measures the Government is bringing forward to try and ensure that this year’s local elections, having been postponed for a year due to the pandemic, proceed as planned in May.

These included increased campaigning expenses and proposals for ’emergency proxy voting’ for those forced to self-isolate.

Yet with the nation plunged back into lockdown, local government figures are again concerned about the prospect of delays and have demanded clarity from Ministers about whether or not the elections will go ahead. So what’s going on?

For its part, the Government continues to insist that it will be possible, using the safeguards it is putting in place, to conduct “covid-secure” elections on schedule. According to the Cabinet Office:

“Primary Legislation provides that the elections will go ahead in May 2021. We continue to work closely with the electoral community and public health bodies to resolve challenges and ensure everyone will be able to cast their vote safely and securely – and in a way of their choosing. Measures are planned to support absent voting at short notice. Guidance will be published in good time ahead of the polls and this matter will be kept under review.”  

Inside Whitehall, the difficulty is seen to lie less with polling day itself than with the broader campaigning period. If the Government isn’t able to start easing lockdown restrictions as swiftly as planned, it may remain illegal for activists to do in-person campaigning. And if different parts of the country are descending through the tiers at different speeds, that risks a regionally-unequal democratic process.

Moreover, there are legislative challenges to further postponement. The new election date is enshrined in legislation, and the power to delay them under the Coronavirus Act has expired. So any delay would require fresh primary legislation, and that – on top of the need to keep election administrators properly informed – places its own time limits on the window of decision.

(And that is before getting to the devolved administrations. Each of these has the power to delay their own elections, but in Wales the timing of the Police & Crime Commissioner ones are reserved to Westminster. Postponing these would also require fresh primary legislation, but that process can’t start until, at minimum, the Welsh Government has made its mind up about the Welsh Parliament vote.)

For all this bullishness, however, the Government is keeping the matter under review and delay has not been ruled out. There is also no sign that Westminster is exploring all of the options being explored by the Scottish Government, which include things like an all-postal election.

The consensus between Whitehall figures and Conservatives in local government seems to be that if the elections are put off, it cannot be for very long – perhaps just back into June, when the NHS is under that much less pressure and the vaccine rollout is more advanced.

Henry Hill: Johnson suggests 40-year wait for the next Scottish independence vote

7 Jan

Johnson calls for decades-long wait for second independence vote

Last month, I wrote that there was unease in parts of the Government about an alleged “appease-the-SNP mentality” on the part of some of those charged with setting its strategy for combatting the Scottish National Party.

But the New Year has not seen any softening of Boris Johnson’s approach to the Scottish question. In fact, on Monday he went some way towards firming it up.

Comparing the Scottish referendum in 2014 to the EU plebiscite two years later, the Prime Minister suggested that there ought to be a 40-year gap between such votes on significant constitutional issues. This goes even further than I suggested when I wrote in 2017 about imposing a 20-year moratorium on the independence question.

Although the status of Johnson’s off-the-cuff remarks is never certain, this could be a welcome step towards fleshing out the case against granting a poll if the SNP win this year’s Holyrood elections. They will insist that his position isn’t sustainable, but it is. Whilst simply repeating the ‘once in a generation’ mantra probably won’t cut it, there are plenty of further arguments for such a refusal. But ministers will need to start deploying them sooner rather than later if they are to look as if they’re being made in good faith.

The real question is whether or not the Prime Minister has the wisdom and the inclination to use the time it’s so obviously his intention to buy himself to put in long-term work to shore up the Union.

Meanwhile Scotland’s opposition parties have demanded that Nicola Sturgeon pause campaigning on independence to focus on the pandemic, a Tory MSP has been accused of “insensitive and irresponsible” comments about Covid-19, Johnson claimed the UK has been central to the vaccine rollout in Scotland, and Ruth Davidson has urged politicians to ensure that the nation repays its debt to the young when the crisis has passed.

Civil servant at centre of Salmond inquiry in line for payout as MP demands sackings

The Daily Record reports that the senior civil servant who apologised for the unlawful Government probe into Alex Salmond “is in line for a £250,000 lump sum when she retires”, as well as an annual sum of £85,000.

Leslie Evans, who currently serves as the Scottish Government’s Permanent Secretary, has come under sustained criticism over its handling of the botched inquiry into allegations against Alex Salmond. The former First Minister had legal costs of over £500,000 paid by the Scottish taxpayer after a court ruled that the process had been, as the paper puts it, “unlawful and tainted by apparent bias”.

Although she apologised, Evans has subsequently been criticised by MSPs investigating the fiasco over the Scottish Government’s refusal to hand over key documents, as well as for having to ‘correct’ some of the evidence she gave personally.

Salmond has called on the Permanent Secretary to consider her position, and he isn’t the only one looking for scalps. This week Kenny MacAskill, a Nationalist MP, wrote in the Scotsman about the lack of consequences for those involved. And in another sign of the SNP’s fraying discipline, he didn’t confine his fire to the officials:

“After the debacle of the civil case, she could have resigned quietly and much would have been forgotten or not gone much further. Likewise the SNP CEO could have called it quits and allowed others to take over. But no, so now we face many more being drawn into the mire. Hell mend them I say.”

UDA issue threat against Foster

Arlene Foster has been warned by the police of a threat to her life by the Ulster Defence Association, one of the Province’s largest loyalist paramilitary groups, the Belfast Telegraph reports.

This is apparently not related to the Irish Sea border but stems from her support for the family of Glenn Quinn, a terminally-ill man who was murdered by men believed to be linked to the UDA in January last year.

Politicians from across the spectrum – including Sinn Fein, whose relationship to political violence is unavoidably ambiguous – have condemned the threat to the First Minister.

Bogdanor hits out at the folly of federalism

A potentially noteworthy development in the constitutional debate today as Professor Vernon Bogdanor, one of the UK’s highest-profile constitutional thinkers, comes out against both federalism and endlessly ceding more powers to the SNP.

Writing in today’s Daily Telegraph, he argues that there is no precedent for a successful federation where one unit comprises 85 per cent of its population, as England would, and that there is no mandate for breaking England up into regions. And as for the usual call for ‘more powers’:

“Nor does it make sense to devolve more powers to Scotland. She already controls domestic policy – education, health etc – and effectively income tax also. The more powers devolved, the less leverage for Scottish MPs at Westminster, to the benefit of the separatists. Besides, the SNP does not effectively use the powers it already has… Perhaps the best argument for the Nationalists’ policy of “independence in Europe” is that Scotland could hardly be worse governed by Brussels than she is by the SNP.”

Obviously this won’t fix much on its own. The key problem with the current constitutional debate remains that Labour is hopelessly committed to trying to validate the mistakes it made in the 1990s. But following as it does Boris Johnson’s unguarded but accurate comments about devolution having been ‘a disaster’, and coming from a former advocate of reform, it’s the latest signal of a slow but significant shift in pro-UK thinking.

The Deal in Detail 6): Law and Constitution

1 Jan

Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government in the University of Oxford.

In his foreword to the Government’s explanation of the UK-EU Trade and Cooperation Agreement, the Prime Minister says “the agreement provides for the UK to take back control of our laws, affording no role for EU law and no jurisdiction for the European Court of Justice. The only laws we will have to obey are the ones made by the Parliament we elect.”

Strictly, no agreement with the EU has ever been necessary for the UK to take back control of its laws, but the Prime Minister’s point is that nothing in this new agreement requires the UK to conform to EU law or otherwise to be subject to the jurisdiction of the European Court of Justice (ECJ). The truth of this claim is obviously important. So too is the question of whether, even if the ECJ’s jurisdiction is brought to an end, the agreement might (inadvertently) compound the problem of the European Court of Human Rights (ECtHR), strengthening its jurisdiction over the UK by tying it to free trade with the EU.

Like the Withdrawal Agreement, the UK-EU Trade and Cooperation Agreement, when ratified, will be an international treaty between the UK and the EU. Both agreements make provision for dispute resolution, and in neither agreement is the ECJ the arbiter, for the obvious reason that the ECJ is the EU’s own court.

However, parts of the Withdrawal Agreement, especially the Protocol on Ireland/Northern Ireland, do make provision for EU law to continue to apply, in relation to which the ECJ has a continuing role. In adopting the Withdrawal Agreement, the UK agreed to legislate to give some of the agreement’s terms domestic legal force, including priority over other legislation.

There is no such requirement in the UK-EU Trade and Cooperation Agreement, and the agreement does not import concepts of EU law or otherwise make provision for the UK to be subject to ECJ rule. The only limited exception concerns continuing UK participation in EU programmes, such as Horizon, in relation to which the ECJ obviously has a role. However, this is quite different from the UK agreeing to follow EU law and agreeing to be subject to the ECJ’s jurisdiction.

The Agreement creates a complex network of institutions that will manage relations between the UK and the EU across various fields. In the event of disputes, different options will be open, depending on the context, including third-party arbitration. In some cases, the UK and the EU may be free to suspend performance of obligations in retaliation to breaches. The UK and the EU will thus enforce the agreement by way of arbitration and diplomacy. The EU cannot enforce the agreement against the UK by way of the ECJ, which has no relevant jurisdiction.

At various points during the negotiations, the EU has sought from the UK an undertaking that it would remain a member state of the ECHR and would agree not to amend or repeal the Human Rights Act 1998. This was an obviously unreasonable negotiating aim. Happily, the Agreement contains no such undertaking. The point might seem academic because it is Government policy for the UK to remain party to the ECHR. However, the UK’s treaty right to leave the ECHR is an important protection. It would be open to a successive government, led by a latter-day Clement Attlee for example, to choose to leave. While the Agreement is to some extent conditional on mutual human rights assurances, they fall well short of an undertaking not to denounce the ECHR and thus to protect human rights by other (better) means.

In the opening words of the preamble to the Agreement, the UK and the EU reaffirm “their commitment to democratic principles, to the rule of law, to human rights, to countering proliferation of weapons of mass destruction and to the fight against climate change, which constitute essential elements of this and supplementing agreements”.

Part Six, which concerns dispute resolution, again confirms that these are “essential elements” of the agreement. The UK and the EU agree to continue to uphold shared values and principles of democracy, the rule of law and respect for human rights and reaffirm their respect for the Universal Declaration of Human Rights (UDHR) and the international human rights treaties to which they are parties. The UK is of course a party to the ECHR, but the agreement does not mention the ECHR at this point (the EU has a treaty commitment to join the ECHR, but the ECJ has frustrated its fulfilment; EU member states are parties to the ECHR). Respect for treaties to which one is a party is consistent with maintaining a right to leave in future.

Part Six provides that either the UK or the EU may terminate or suspend the operation of the Agreement if there has been “a serious and substantial failure” by the other party to fulfil any of the obligations that are essential elements of the Agreement. However, the agreement specifies that any measures adopted would have to be proportionate and for a failure to be serious and substantial failure, “its gravity and nature would have to be of an exceptional sort that threatens peace and security or that has international repercussions”.

The Agreement specifies that defeating the object and purpose of the Paris Agreement would count, but there is no mention of leaving the ECHR. The omission is justified, because denouncing the ECHR would not itself be a failure of respect for human rights. On the contrary, it might well be a decision that human rights, democracy and the rule of law are better realised by a mature parliamentary democracy not subject to the ECHR’s jurisdiction. While the EU might attempt to argue that denouncing the ECHR was a breach of the Agreement, the argument would be weak indeed. It would also be superfluous because the EU, like the UK, is free to terminate the entire Agreement provided it gives twelve months’ notice.

Part Three of the Agreement, which concerns law enforcement and judicial cooperation in criminal matters, is somewhat more specific. The Agreement notes that the basis for cooperation is that the UK, the EU, and EU member states have long respected democracy, the rule of law and the protection of human rights, including rights set out in the UDHR and the ECHR, as well as the importance of giving domestic effect to the ECHR.

The Agreement disavows any intention to modify existing obligations to respect fundamental rights, especially those affirmed in the ECHR or, on the part of the EU and its member states, in the Charter of Fundamental Rights. Part Three permits the UK or the EU to terminate this part of the Agreement by giving nine months’ notice (other parts of the Agreement also provide for partial termination on nine months’ notice).

It also provides for earlier termination if the reason for termination is that the UK or an EU member state has denounced the ECHR, , specifying that in this case this part shall case to have effect from the date on which denunciation becomes effective (which the ECHR provides requires six months’ notice). Denouncing the ECHR would neither breach Part Three nor vitiate a condition on which the continuing application of Part Three depends; instead, the EU would have to choose to exercise its right to terminate.

In ratifying this agreement, the UK will not be undertaking not to withdraw from the ECHR, let alone not to amend or repeal the Human Rights Act. If the UK subsequently exercises its treaty right to leave the ECHR, it will be choosing, like Australia, Canada or New Zealand, to live without an international (regional) human rights court.

Whether to make this choice is an important question of foreign policy, a question with significant constitutional implications. Leaving the ECHR would not be a breach of the Agreement. It would not justify suspension or termination of agreed terms of trade. It might be a reason for the EU to terminate law enforcement and judicial cooperation, but that would be a choice for the EU to make and the EU, like the UK, is in any case free to terminate the Agreement. If the UK were to leave the ECHR, it would be prudent to provide assurances to the EU that there would be no relevant change in the protection of liberty within domestic law. But whether to leave the ECHR, and how to protect human rights, would remain for the UK freely to decide.

This is the sixth of a series of pieces from Policy Exchange looking at specific issues that arise from the Brexit trade deal.

Starmer’s trite anti-Westminster populism shows Labour still aren’t serious on the Union

21 Dec

As one reads through Sir Keir Starmer’s speech today setting out Labour’s attempt to salvage its position in Scotland ahead of next year’s Holyrood elections, it’s difficult not to feel at least a little sorry for them.

Just like Irish Labour a hundred years before, socialist and social-democratic parties tend to get screwed whenever the focus of politics shifts to existential national or constitutional questions. So it’s understandable that their instinct has been to try and find a magic bullet that will just make the problem go away.

Thus their forlorn quest for a devolution ‘settlement’ – the word implies a wholly illusory stability – that will, as the now-infamous saying goes, “kill nationalism stone dead”.

More than two decades on from the advent of Labour’s devolution experiment, it is now patently obvious that it hasn’t worked, even if there is still an omertà against saying so in public (unless you’re Boris Johnson). Support for separation in both Wales and Scotland stands at record highs, and in Edinburgh the nationalists have used the power of the Scottish Parliament to suborn civil society.

But Labour can’t admit this. Not only is devolution their handiwork, but its principle New Labour architects still dominate the party’s constitutional thinking. Gordon Brown’s mission is to vindicate himself at all costs and, ideally, file a second draft of his political obituary. Such priorities preclude any honest admission that devolution has indeed been a ‘disaster’.

This tension riddles Starmer’s speech, to such an extent that it on the important questions it essentially repudiates itself. Take this: “The United Kingdom is shaped not just by our shared institutions, but by the people who made them, the history and experiences that shaped them and the amazing things we’ve achieved together.”

By putting ‘just’ in that sentence, the Leader of the Opposition implies that the importance of those institutions goes without saying. But this is impossible to reconcile with his actual proposals, which amount to the tritest populism. If common experience of shared institutions is vital to holding together the United Kingdom, how can he so blithely commit Labour to pushing “as much power as possible away from Westminster”?

And when they say “as much power”, the scope of what seems to be being debated inside the party is staggering. Katy Clark, a peer and former Scottish MP, has suggested going so far as to give Scotland not just complete fiscal autonomy but the power to veto military action. At that point, the UK would cease to be a functional state at all. The ‘British Isles Customs and Pensions Community’ would be a more accurate description.

What Starmer seems not to grasp – or what Brown et al won’t permit him to admit – is that you can’t make the case for the United Kingdom whilst simultaneously arguing that the United Kingdom should play as small a role in our lives as it possibly can. If you want people to feel British, you need to defend and indeed expand the spheres of life in which we live and act as ‘the British’. If you believe in the United Kingdom, you need to believe in a United Kingdom that does more things than, say, the European Union. Or Austria-Hungary, for that matter.

Every time you gold-plate the ‘devolution settlement’ to lock Westminster completely out of bread-and-butter policy areas such as health and education, you make the case for the Union harder to make. Here’s another key line:

“We are all stronger because we choose to pool our resources to share the risks and rewards.”

That’s entirely correct. But the case for the UK can’t rest on fiscal transfers alone. Not just because 2016 showed that voters won’t forever content themselves with such emotionally thin gruel, but because under Labour’s devo-max proposals consent for those transfers will soon run out. You can’t reject the British nation as a community for political government and expect it to survive as a community for redistributing cash.

More devolution – specifically, to weaken and circumvent the ultra-centralising devolved legislatures and put power directly in the hands of communities like Aberdeen or North Wales – definitely has a role to play in the fightback against separatism. But this childish, Britanno-phobic aversion to Westminster does not. It might win easy applause from the devocrat chorus line, always enthusiasts for any solution that involves increasing their power, pay, and prestige, and those Westminster politicians and academics who have staked their reputations on devolution. But they’ve cheered on every disastrous misstep of the past twenty years.

If Starmer has not yet got his head around the importance of the UK Internal Market Bill, and the obvious case for ex-EU market powers being vested in the next-highest authority, he’s in no position to be calling a ‘constitutional convention’. Unless such a move was accompanied by a clear willingness to challenge cherished devolutionary orthodoxies, it will simply be Labour having their one idea one more time and hoping that this time the clocks finally strike thirteen before Britain’s time runs out.

Perhaps all that might be forgivable, at least from a narrow and tactical perspective, if there was a big constituency for this. But Nationalist voters aren’t holding out for a less competent and less charismatic alternative to the SNP with a less inspiring spin on their big idea. And after two years of being sold retreat with promises of peace, unionists voters are going rightly cold on this nonsense too. There are some battles you just can’t triangulate your way past. Someone tell the ghosts of New Labour.

Henry Hill: The beacons are lit! Aberdeen calls for aid, and London must answer

17 Dec

It has been a while since this column covered the war between the hyper-centralising Scottish Government and the Convention of Scottish Local Authorities (COSLA), but that’s only because it seems to be over.

During their 13 years in office the Scottish Nationalists have squeezed the ability of councils to raise their own finances, and partly plugged the shortfall with central funding over which Holyrood ministers have final say.

Now one local authority has had enough. The Press & Journal reports that Aberdeen City Council has voted, by 22 votes to 19, for their Chief Executive to write to Alister Jack to request direct funding from the British Government – and to COSLA to clarify that they want the money to bypass the Scottish Parliament.

It isn’t difficult to see why the Nationalists in Edinburgh would be content to let Aberdeen languish as the “lowest-funded in Scotland”. The city’s government is a ray of light for unionists, being run by a coalition between the Conservatives and local ex-Labour councillors who have defied their party’s myopic ban on working with the Tories even at the cost of getting suspended.

Naturally, the opposition parties aren’t amused. The SNP have accused the Council of basically trying a Trotskyist ‘impossible demand’ so they can blame the Scottish Government – which takes some brass neck, given that this is the normal form of devolved politics. The Liberal Democrats, meanwhile, have accused the whole thing of being ‘an attack on the devolution settlement’.

For their part, the majority have amended the motion to clarify that they do think devolution is good, although how many of them really mean this is an open question. Recusancy remains, for now, a requirement for devosceptics in Scottish public life.

More troubling should be the Lib Dems’ assertion that the proposed deal is “never going to happen”.

After all as Douglas Lumsden, the Conservative co-leader of the Council, has pointed out, the proposal that Westminster take over responsibility for providing grants to local authorities is simply maintaining the order that prevailed under our membership of the European Union. It is the Edinburgh devocrats, with their Britanno-phobic aversion to any exercise of power by London, who are trying to stage a “power grab” by usurping this function and concentrating even more power in Holyrood.

The British Government’s proposals to forge stronger direct links with local authorities across the UK are therefore both well-justified and eminently workable. Whence then the Lib Dems’ apparent certainty that they will come to nothing?

Perhaps they think they have the measure of Michael Gove. As I reported last week, when word first broke that the Government might throw in the towel on the vital UK Internal Market Bill, there is growing concern amongst some in government about an ‘appease the SNP’ tendency on the part of the Chancellor of the Duchy of Lancaster and some of his advisers.

In the event, the climbdown was much less severe than feared – which is probably why the devolved administrations are still threatening legal action. But government sources report that Gove himself wanted to offer far more concessions and effectively “gut the common framework”. He clearly lost on this occasion – but how sustainable is it for the Government’s constitution and Union strategy to need defending from the man nominally in charge of it?

Reinforcing Aberdeen will doubtless provoke similar squeamishness amongst those who’d prefer to ‘devolve and forget’, ceding the powers to Holyrood in exchange for a quiet life. But that would be dereliction of duty. There is a rebellion brewing in the North East of Scotland, one which compasses not just Aberdeen but also the Northern Isles’ quest for more autonomy from the overweening Scottish Government.

Together, this represents a golden opportunity for ministers to break down Holyrood’s gate-keeping and re-establish Westminster as a complementary government for the whole United Kingdom. They must not squander it: funding for Aberdeen, and giving them Armed Forces Day in 2022, should be just the start. Floreat Aberdona!

Other news:

We’ve led on one big story this week but there was far too much to cover it all anyway. Below are some of the highlights. First, the usual week of fresh misery for the SNP:

  • Gove calls on SNP Government to outline how it has spent Brexit money – The Herald
  • Labour demands impartiality probe into Sturgeon’s daily briefings on BBC – The Herald
  • SNP MP suspended from Commons after shouting during Brexit debate – The Herald
  • Leaked SNP report ‘contradicts Peter Murrell’s evidence to Salmond inquiry’ – The Herald
  • SNP criticised over ’embarrassing’ failure to cut primary school class sizes – The Herald

Next, their specific and damning failure on drugs deaths:

  • My brother’s death from drugs overdose was the result of our political failure, says SNP MP – Daily Record
  • Scots public health minister urged to quit over shocking drug death figures – Daily Record

The Tories.

  • Scottish Tories would boycott independence referendum run by Holyrood – Daily Record
  • Tory election candidates quizzed on abolishing Senedd – BBC
  • Davidson erupts at Nicola Sturgeon in brutal FMQs showdown – Daily Express
  • Lewis quizzed on future of Northern Ireland at 100, in online talk – News Letter

More flailing from Labour:

  • Scottish Labour’s top official quits ahead of Holyrood election – The Herald

And finally…

  • Plaid Cymru pledges Welsh independence referendum if they win in Senedd elections – Wales Online

Yuan Yi Zhu: Good riddance to the Fixed-term Parliaments Act

14 Dec

Yuan Yi Zhu is a Senior Research Fellow at Policy Exchange’s Judicial Power Project and a researcher based at Nuffield College, Oxford.

When the Fixed-term Parliaments Act 2011 Act (FTPA) was first introduced, all three major parties backed its principle. Within the decade, both the Conservative and Labour parties committed to its repeal as part of their 2019 election manifestos.

The Fixed-term Parliaments Act 2011 (Repeal) Bill, published recently, seeks to carry this commitment into British law, restoring the prerogative power to dissolve Parliament and protecting it from judicial interference, reforms for which Policy Exchange’s Judicial Power Project has argued in successive reports and articles.

What changed in the meantime? As it turned out, the evil the FTPA ostensibly sought to remedy – the Prime Minister’s ability to time elections for political advantage – was far outweighed by the new ones it created, as the antics of some members of the “dead Parliament” of 2017-2019, desperate to avoid taking their case to the people in a general election, made clear.

The FTPA did empower backbenchers – another one of its oft-touted virtues – but at the expense of the electorate, who for months were deprived from having their say on one of the most momentous constitutional developments in recent history. Worse yet, it was not even effective at what it purported to do. Of the three Parliaments elected since its enactment, only one ran the full statutory five years.

Nor has it provided the political stability it promised, quite the contrary. Hence, there is now a sizeable cross-party parliamentary majority for the repeal of that short-sighted and ill-conceived piece of opportunistic constitutional tinkering.

The new bill is a simple one. Section 1 repeals the Fixed-term Parliaments Act 2011. Section 2 revives Her Majesty The Queen’s prerogative power to dissolve a Parliament and to call a new one.

There has been some public discussion about whether the power of dissolution should not be given to the Prime Minister directly, or to require a simple majority of the House of Commons to vote for dissolution. In the end, the Government has decided to propose a return to the pre-2011 status quo, which has the advantage of intelligibility and of being rooted in the United Kingdom’s history.

Section 3, which forbids the courts from questioning The Queen’s exercise of those powers, as well as any decision leading to the exercise of them, has predictably provoked overheated criticism, including accusations of authoritarianism.

In fact, it has long been settled, at least until the Supreme Court’s prorogation judgment, that the courts should not be tempted to enter into certain areas, and the life and death of parliaments ranks high among them. Indeed, in his famous judgment in the GCHQ case, Lord Roskill specifically listed dissolution as one of the prerogative powers not “susceptible to judicial review because their nature and subject matter are such as not to be amenable to the judicial process”.

Under the United Kingdom’s political constitution, it is impossible to imagine a circumstance where it would be appropriate for the courts to decide on the proper timing of elections. This is a decision which involves a potent mix of high policy and low politics which is the very essence of democratic politics. There exist no legal standards against which to judge the legitimacy of a decision to go to the polls, and any attempt at judicial intervention will inevitably drag the judiciary into partisan political controversy. And the repeal of the FTPA will make it harder for parliamentarians to delay facing the people in a general election, which can only be a gain for democracy and accountability.

But in the aftermath of the Cherry/Miller (No 2) judgment – in which another related prerogative power, long thought as being immune from judicial review, was improperly brought under the courts’ control – there is a real possibility that parliamentarians, unwilling to face an early election, will try to litigate the issue in the courts. Indeed, given the courts’ proclivity to expand their dominion in recent decades, the risk was not entirely absent even before Cherry/Miller II. When the FTPA was making its way through Parliament in 2011, several constitutional authorities called for the Bill to be modified to minimise the risk of judicial intervention, but the Coalition government took the view that “the risk of the courts straying into or getting involved with them was very small”.

The risk has grown since then, and it is surely right for the Government to address the point squarely by precluding judicial review of dissolution. Not only does it protect our democracy, but it also insulates the judges from accusations of political interference, which undermines the very source of their legitimacy.

Section 4 provides for the automatic dissolution of Parliament after five years of its first meeting. By a constitutional quirk, this would mean that the life of the present Parliament would be extended by seven months, as the FtPA provides for elections to be held on the first Thursday in May every five years. However, modern parliaments almost never run for the theoretical maximum of five years – the 2015 election was the first time this ever happened in British history – so the provision is unlikely to have any impact on the date of the next election. Sections 5 and 6, as well as a schedule, deal with ancillary matters.

The Government has also published a statement on the constitutional principles governing dissolution. They are a powerful reminder of the simple axiom at the core of the British constitution: apart from in exceptional circumstances, the Sovereign acts on the advice of the Prime Minister so long as the Government he leads command the confidence of the House of Commons.

All in all, this is a simple, elegant and overdue enactment, which sets out to do exactly what it says it will do – to return the UK political constitution to its state before the Fixed-term Parliaments Act ever graced our statute books. It is to be hoped that the Government will continue to restore politics to its rightful place – at the core of the United Kingdom’s constitution.

Henry Hill: Another week that shows unionists need new weapons against Sturgeon’s revenant SNP

3 Dec

At the start of October, I wrote about the growing gap between the Scottish National Party’s apparently rosy political fortunes and the growing number of problems building up below the surface.

Since then, this gulf has only continued to widen. On the one hand, new research from These Islands has revealed the true extent of the extraordinary hold that Nicola Sturgeon has on the Scottish electorate, and independence continues to do well in the polls.

Yet on the other, the Nationalists’ woes have continued to mount. MSPs on the inquiry into the Scottish Government’s botched handling of the investigation of allegations of sexual misconduct against Alex Salmond, which ended up costing Scottish taxpayers over £500,000, have laid siege to Bute House. The question of what the First Minister knew, and when, is right at the centre of it.

Meanwhile, new data has demolished Sturgeon’s claims to have handled Covid-19 better than Boris Johnson. The FT explains: “Left unmentioned by Scotland’s first minister has been a less flattering fact: weeks of official statistics suggest that proportionately more people have actually been dying of coronavirus in Scotland than in England.”

But this wasn’t just a week for old problems. Oh no. “Accusations of untruthfulness and inaccuracy have been made against the Scottish Government” over claims that a struggling company’s problems stem from a lack of support from its overseas owner, according to The Herald.

The paper also reports that the Fraser of Allander Institute – “Scotland’s leading economic thinktank” – has ‘slated’ Sturgeon’s proposal to award a £500 bung to NHS staff and try to blame the British Government for taxing it. As income tax now goes to the Scottish Government, the First Minister could simply increase the gross bonus, as the excess would simply come back to Holyrood via taxation.

Internally, things are just as bad. The SNP’s legendary discipline is fraying at the seams. Salmond, less popular than he was but still a totemic figure for a big chunk of the Nationalist base, thinks his successor conspired against him and is out for revenge. In addition to unhelpful interventions in the inquiry scandal, his outriders are exploiting other policy splits, for example over nuclear weapons, gender issues, or independence strategy. Joanna Cherry, a high-profile MP and staunch ‘Salmondite’, has attacked her party’s “cult of the leader”.

This week has seen further developments. John Swinney, the Deputy First Minister, has written to MSPs to say that he is “keen to consider” ways by which they might be allowed to see the legal advice from the Salmond case (although this does not, despite some coverage, seem to be the same thing as agreeing to release it).

Perhaps just as significantly, the SNP conference saw Sturgeon ‘lose the soul of the party’ when opponents of her leadership were elected to its National Executive Committee. According to the Times:

“Supporters of the first minister were organising fightbacks yesterday after critics of her leadership were elected to the national executive committee (NEC), which makes key decisions on candidate selections and policy. It is likely that the independence strategy will be challenged, while the party’s stance on gender recognition reforms will again come into sharp focus.”

But does any of this matter? In an important piece, Alex Massie sets out what he describes as the ‘Sturgeon Paradox’: no matter how badly her administration performs, her popularity only continues to grow. A favourable presentational contrast with the Prime Minister, and the mere Scottishness of the institution is heads, is apparently enough to deliver impregnable poll ratings.

That this argument utterly vindicates the direst warnings of devolution’s staunchest opponents obviously goes unremarked, but the article is nonetheless as real a tribute to the farsighted wisdom of Tam Dalyell and Michael Forsyth as any you’ll find.

Likewise Rory Scothorne, a left-winger whose instincts will not dispose him to reinforcing Boris Johnson, has a very interesting piece in the New Statesman whose gist could be not unfairly distilled, even or perhaps especially by someone with different priors to the author’s, to something not far off ‘devolution has been a disaster’. And in Northern Ireland, Sam McBride of the News Letter has yet another story about how the Province’s devolution settlement is being milked for cash by a local political class that is incapable of effective government.

Suffice to say, looking forward to the Prime Minister’s new ‘Union Unit’ suggesting that the solution is to offer all these institutions more powers.

The Government publishes its plan to repeal the Fixed-term Parliaments Act

1 Dec

A couple of weeks ago, we looked at the question of repealing the Fixed-term Parliaments Act and suggested it might be an important litmus test for how much Dominic Cumming’s departure affected the Government’s willingness to pick important, but arcane, constitutional battles.

I then raised the issue with Jacob Rees-Mogg in the Moggcast, and was assured that progress on the issue was being made and that returning to discretionary elections was on the agenda (it was, after all, a manifesto commitment).

And lo! This morning’s Times reports that the Government is indeed publishing today a bill to repeal the FTPA. According to the ‘senior Government sources’ quoted by the paper it does sound as though Ministers have elected to take the purist option I outlined in my piece: “seeking to restore the power to go to the country conferred by royal prerogative”.

According to the paper, Boris Johnson sees this as part of a wider battle to reassert traditional parts of the political constitution against outside encroachment – and as of a piece with his conflict with the Supreme Court.

The draft Bill is now available online, and the truth of these claims is plain to see in the first three clauses:

1 Repeal of the Fixed-term Parliaments Act 2011

The Fixed-term Parliaments Act 2011 is repealed.

2 Revival of prerogative powers to dissolve Parliament and to call a new Parliament

(1) The powers relating to the dissolution of Parliament and the calling of a new
Parliament that were exercisable by virtue of Her Majesty’s prerogative immediately before the commencement of the Fixed-term Parliaments Act 2011 are exercisable again, as if the Fixed-term Parliaments Act 2011 had never been enacted.

(2) For the purposes of subsection (1), the powers relating to the calling of a new Parliament include powers to order the issue of—

   (a) writs of summons to attend the House of Lords, and

  (b) writs for parliamentary elections (see rule 3 in Schedule 1 to the Representation of the People Act 1983).

3 Non-justiciability of revived prerogative powers

A court of law may not question—

  (a) the exercise or purported exercise of the powers referred to in section 2,

  (b) any decision or purported decision relating to those powers, or

  (c) the limits or extent of those powers.”

If successful, passing this Bill would mean that no future coalition of opposition and backbench MPs could ever hope to usurp the Executive and bypass the checks and balances of our parliamentary system the way Oliver Letwin and his confederates attempted to do.

Whether or not Clause 3 will be protection enough against the Supreme Court, in light of their evident willingness to innovate, remains to be seen. The Government has clearly learned from the defeat of previous ‘ouster clauses’ by making sure it encompasses “purported” decisions – thus aiming to shoot the fox of judges who have circumvented previous such attempts by claiming that the decisions they quashed fell outside ouster clause laid down by Parliament.

Even as we speak, the Lords anew constitutional reality conjured up in Miller II. Might this Bill be amended to shield future prorogations behind Article IX and restore their status as proceedings in Parliament?

Paul Davies: Devolution has not been a disaster – but it does need a complete overhaul

20 Nov

Paul Davies MS is Leader of the Conservatives in the Welsh Parliament.

This week the Prime Minister started a debate about devolution, and I welcome his intervention. Not because I agree with him, but because it gives me the chance to outline how as Welsh Conservatives we can address the concerns that he and others have raised.

Just to be clear: devolution has not been a disaster. But it does need a complete overhaul.

That is a message I have heard loud and clear from our members who have been incredible in engaging with our election preparations. There has been an exciting buzz in the party that I have not detected for years, it has been refreshing.

And yes, I have been listening to the concerns of those who want to reverse the devolution settlement. I hear you, and I understand.

The concept of devolution isn’t the problem, and devolution doesn’t cause bad decisions and poor government. What holds this nation back is being saddled with successive Welsh Labour-led governments, on whose watch our economy has stagnated, public services have become unresponsive to the needs of the public, and whose ministers pathetically limp along with little energy, passion, or accountability for their performance.

That’s the real disaster, and its continuation is one we need to change, for all our sakes.

Usually when a government gets things wrong it’s the drop in the opinion poll ratings for that party which is the indicator. But what we are seeing in Wales is a growing number of people blaming devolution instead of the party who are solely responsible for getting things wrong in government.

It’s not just the poor performance of the Welsh Labour Government most highlighted during the pandemic which has affected peoples’ attitudes to devolution. Perversely, Labour administrations have actually undermined the devolution settlement itself by pushing for more and more powers for themselves – while failing to use those at their disposal more effectively. They are more interested in power than progress, and we need to make sure that the public understand this.

Trying to undermine Brexit, setting up an international relations department, and establishing a commission on justice are examples of a Welsh Labour administration greedy for powers and playing politics with the future of the United Kingdom.

During the pandemic they have further undermined the Union, often preferring to adopt a different approach than that over the border simply for the sake of being different. Labour has also fuelled community tensions and pandered to Welsh nationalists.

In next year’s election I will campaign for the opportunity to lead this nation, but it will be more than that. I will be campaigning for Wales to be at the heart of the United Kingdom. I believe in Wales and in the UK. I am not alone in feeling this, and it’s not just Conservatives who are passionate about being Welsh and British. We will respect the devolution settlement from day one, and work with the Prime Minister and the British Government to deliver for Wales, as a team.

I am excited about offering a radical, imaginative and ambitious alternative as we head into the May elections. If Labour win next year, with another five years running Wales into the ground, it will give them almost 30 years in government in Wales! That is not just unhealthy but a massive risk to our economic wellbeing and the future of our nation. I want to offer hope to families and communities the length and breadth of Wales who have been let down since 1999.

Wales deserves better. I will cut the number of ministers in half; we will freeze the number of civil servants; and I will set up an independent Office for Government Resilience and Efficiency to monitor our expenditure and provide oversight of our plans.

I will also, unlike all the other party leaders, respect the devolution settlement. More time spent delivering and no time spent asking for more power. We will also go further by ruling out more referendums on the constitutional settlement, and we’ll stop spending your money in non-devolved areas, such as justice, international affairs and immigration. We will scrap Labour’s efforts to devolve policing, justice, and elements of welfare.

Enough is enough. People elect politicians to get on with governing, and to do it with what they’ve got, and if they haven’t got the get up and go they should get up and clear out!

I will lead a government that is ambitious. I want an economy that grows, where Wales is a place to invest, grow and export. Over the past 20 years we have seen zero ambition by Labour, who have done nothing to grow our economy, but act as if it is London’s problem to solve. It isn’t, it’s ours. We’ll invest in infrastructure, facilitate investment in Wales, cut business rates and focus on skills. I want us to be wealthier and healthier.

In creating a healthier Wales, we need to be better in how we meet peoples’ needs. We spend billions on public services which struggle to reform, are sometimes poorly led, disconnected from each other and fail to put the individual at the heart of what they are about. Wales is not a big country, but we need organisations to work together in ways not done before.

Fundamentally it’s time for government to think and act differently. Today’s ministers have become stale. They look bored, with little appetite or ideas for the present, let alone the future. This will not change with the current party or those on the nationalist left who support them.

Only a Welsh Conservative Government can offer real change and hope to those whose lives have not been transformed, and who deserve so much more.