A prince’s passing is a chance to reflect on why we’re royalists

11 Apr

Why be a monarchist? As the country enters eight days of official mourning following the death of Prince Philip, it is a fitting time for those of us who support the institution of which he has been a pillar for so long to reflect on our reasons.

The Duke of Edinburgh’s passing is a sad reminder, as Andrew Gimson wrote yesterday, of the mortality of the Sovereign. And since the popularity of the principle of monarchy tends to under-poll the popularity of the monarch – especially one so universally admired as Queen Elizabeth – a reminder that its current hold on public affection cannot be taken for granted.

We might need to make our case, perhaps sooner than anybody wishes to imagine. So we had best prepare it.

So why royalty? There are different answers. Matt Kilcoyne talks about the value of having as the central drama of the nation a family story, told across several generations, rather than the presidential cycle of heroic but transient figures and interminable origin stories. Writing in 2012, Sunder Katwala made a pitch that the left should reconcile itself to the monarchy that put Prince Philip front and centre:

“We don’t even think of the Queen as having married an immigrant, so well integrated into British life has her Greek-Danish prince become. Prince Philip enjoys broad popularity, running neck-and-neck with Trevor McDonald ahead of sports and pop stars in an Ipsos MORI poll asking which foreign-born figure has made the biggest positive contribution to Britain.”

There is also much to be said for having a head of state who can be a non-partisan focus of pageantry. Coronations and jubilees allow the country to come together for events that don’t celebrate the triumph of one party, faction, or tribe.

The long history of the monarchy provides context and legitimacy to national rituals. George Orwell, another left-winger with a better grasp on this stuff than most of his comrades, put it best in his defence of anachronism in The Lion and the Unicorn:

“It is continuous, it stretches into the future and the past, there is something in it that persists as a living creature. What can the England of 1940 have in common with the England of 1840? But then, what have you in common with the child of five whose photograph your mother keeps on the mantelpiece? Nothing, except that you happen to be the same person. Above all it is your civilisation. It is you.”

A republic would need new ceremonies and honours, if its self-consciously modern advocates could even recognise the value of them, and they would inescapably be shallower than those they replaced. No epic struggle against tyrants to sanctify a British republic, just a technocratic tidying-up exercise and likely the symbols to match it.

Meanwhile for constitutional conservatives, the monarchy plays vital role in the evolved elegance of the British constitution. The Crown is a vessel in which substantial powers can be safely vested, precisely because the Queen does not herself exercise them. Instead, the Royal Prerogative provides a perfectly normal suite of executive powers (obvious at least to those who can see past the word ‘royal’ in the name, which isn’t everyone) that can be wielded by a Government that sits in, and is directly accountable to, the elected House of Commons.

As with the House of Lords, there is no credible case for a presidency which rests on the position being essentially ‘the same, but elected’. Mandates have their own force and institutions a life of their own. Either a president would end up attempting to wield these powers, or they would have to be stripped from the head of state and found a new home.

The abolition of the monarchy would, therefore, almost certainly entail much broader constitutional reform, delivered by the sort of people responsible for such triumphs as the Supreme Court, devolution, and the Fixed-term Parliaments Act. God save the Queen.

Buckland gears up for a stealth raid on judicial power – and the Labour legacy that boosted it

28 Mar

In a speech last week, Robert Buckland quoted from “Professor HLA Hart, one of the foremost legal philosophers of the last century” in a lecture called ‘American Jurisprudence through English eyes: The Nightmare and the Noble Dream’ “.

The nightmare is judges creating law, according to Hart (“deciding dockets of moral and political questions”) and the dream is judges discovering it (“threading fundamental principles through every case”).

The Lord Chancellor went on to utter what must be one of the most understated sentences ever pronounced by a politician.

“The core idea of the nightmare – that judges are placed into the position of legislators or political decision makers – is not unimaginable,” he said.

You can say that again.  So can Buckland himself – for, less than two years ago, the highest court in the land produced the ultimate politicised judgement, the memory of which will surely have crossed his mind while writing his speech.

For casting aside the classical view previously reached by the Lord Chief Justice, the Supreme Court reached a different one on the lawfulness of a prorogation by confusing the legislature with Parliament as whole.

Since politicians leak and judges don’t, we don’t know the story of how the court, under the presidency of the spider-brooched Lady Hale, reached its unexpectedly unanimous verdict (and may never know).

The Lord Chancellor tactfully swerved this example, with its baleful implications for our constitutional balance, and reached instead for a less contentious one – an assisted suicide case, R (Nicklinson) v Secretary of State for Justice.

In his emollient way, he explained that it called, in the words of one commentator, “for a decision which balanced competing fundamental institutional values”.

These were “whether the court should or should not strike the balance of moral values itself or accept the balance as struck by Parliament”.

Buckland was pursuing a political purpose amidst this lawyerly language about political decisions: namely, a stealth raid on judicial power, and the New Labour legacy that has helped boost it.

It would be unfair to lay at Tony Blair’s door all the developments that have politicised the courts over a long period: EU membership, the evolution of the ECHR, and the importing of legal ideas from abroad, such as proportionality.

But by removing the Lord Chancellor from the judiciary, merging him with the Justice Secretary and placing him in the Commons (with one exception), Labour pulled out a linchpin from government that helped hold its branches together.

And just as it took from the Lords the country’s most senior judge, it also took from it our most senior court: the law lords were replaced by the Supreme Court.

That deliberately American-style title paved the way for the American-flavoured politicisation that has followed.  There are two logical solutions to it.

The first is to complete the halfway house, and have US-style hearings in Parliament before judges are appointed.  The second is to demolish it, and move both Court and Chancellor back to the Lords.

Which takes us back to Buckland’s speech and Government policy.  As he said last week, there is other business already in motion: a review of administrative law, which has reported, and of the Human Rights Act, which hasn’t.

Such piecemeal exercises are Ministers’ preferred vehicle for reform now that they have ditched, as this site has previously reported, the Conservative Manifesto commitment to a Constitution, Democracy and Rights Commission.

The Lord Chancellor said last week that the Government wants “to examine the role of the Lord Chancellor itself” and that “we are still in the early stages of that thinking”.

Nonetheless, he knows very well that logic isn’t everything in politics, so both the options described above appear to be out.

Buckland is not going to propose the abolition of the Supreme Court (or indeed of his department); nor does he favour parliamentary hearings for judges – “a nightmare for the UK, which we should seek to avoid”, as put it.

However, his regret at the loss of the linchpin – his word – and reservations about the Lord Chancellor being thrust into the “hurly burly” of the Commons suggests a solution nearer the first option than the second.

Sources suggest that the Lord Chancellor could be given his own department, returned to the Lords, and once again become both a senior judge and a Cabinet member at once.

Whether the Justice Department would be sustainable in the wake of such change, with a remit largely confined to prisons, would ultimately be a matter, like others, for the Prime Minister, the Government and Parliament.

Half of a reforming programme to quell “the nighmare” and stir “the dream” could centre on the Lord Chancellor, and the other half focus on the Supreme Court itself – a matter that Buckland ducked in his speech.

One solution, already floated within government, would be to change the name of the court, cut the number of permanent judges and bring in others with specialist knowledge to hear individual cases.

That idea emerged from Policy Exchange’s Judicial Power Project.  Another would be – as its head, Richard Ekins, has written on this site – to “restructure how and by whom final appellate jurisdiction is exercised”.

Such an approach would be consistent with gradually reviving the Law Lords, perhaps initially through panels of retired judges who are now peers.

Whatever the Government decides to do, it may be worth noting that the Lord Chancellor referred during a discussion after his speech to Parliament as “the final court of appeal”, as he has done previously.

(Which recognises that though we earlier called the Supreme Court “the highest court in the land”, it isn’t, constitutionally speaking: the highest court in the land remains “the high court of Parliament”)

Certainly, removing the Lord Chancellor from the cockpit of judicial debate would make it easier to take up the project’s proposal for enlarging his role in judicial appointments.

Buckland was keen to stress last week that politicisation isn’t the consequence of a power grab by the judges – quite the opposite, he suggested.

“We must be honest about the fact that rushed and poorly drafted legislation leaves those gaps and judges frankly have an unenviable task in filling them,” he said.

“At best it is a Parliament shirking its duty which leaves jurists uncertain of whether it did or did not intend a certain outcome, at worst it is contracting out its own decision-making function.”

The Lord Chancellor was gilding the lily – partly in order to support his tension-cooling view, stated before and repeated last week, that the judges are not “the enemies of the people”.

But while it is true that judges have sometimes walked on the wrong side of the line – consider the case of the Prince of Wales’ black spider letters – they can scarcely be blamed if the line is wonkily drawn in the first place.

If the Commons doesn’t consider legislation properly, leaves it to the Lords to tidy up, and the details of a Bill fall through the cracks, don’t blame the judges if they have to fill them.

And if Parliament deliberately leaves difficult stuff to the courts – like the hierarchy of protected characteristics in equality legislation – don’t blame the judges, either, if they’re forced to decide who’s furthest up the queue.

Hart was a Brit, for all his consideration of law in the United States, but we close with an American – Theodore Roosevelt’s famous saying about speaking softly but carrying a big stick.

Buckland speaks softly and how large a stick he carries is still unknown.  But the facts are consistent with that stealth raid on judicial power, even if it’s not clear yet how much he wants to carry off.

Henry Hill: Frost’s appointment shows the Government is not resigned to the Northern Ireland Protocol

4 Mar

Throughout the Brexit negotiations, the European Union always insisted that its approach to Northern Ireland was governed by the pre-eminent importance it placed on the Belfast (‘Good Friday’) Agreement. Events may be about to test this thesis.

Today the Loyalist Communities Council, “an umbrella group that represents the views of the UVF, UDA and Red Hand Commando” in the Guardian’s words, wrote to Boris Johnson to announce that the major paramilitary groups were withdrawing their support for the Agreement.

Whilst they insist for now that unionist opposition to the Northern Ireland Protocol remain ‘peaceful and democratic’, the move has been made against a background of mounting concern about a resurgence of loyalist violence, most likely targeting the infrastructure and personnel enforcing the new Irish Sea border between Ulster and the mainland.

All this is important context to the announcement that Lord Frost, the new Brexit Minister, is going to unilaterally extend the grace periods exempting supermarkets from checks on goods being shipped from Great Britain to Northern Ireland, as well as a moratorium on customs declarations for parcels being sent to the Province. The move has sparked outrage from Brussels, which has accused the Government of engaging in a second UKIM-style breach of international law.

But according to sources familiar with the thinking behind the move, this is quite another sort of manoeuvre. The threat of “specific and limited” breaches to international law deployed during the debate on the UK Internal Market Bill were a short-term negotiating tactic – and one which worked, in as much as it helped Michael Gove to secure concessions from the EU on the Protocol.

However, the Chancellor of the Duchy of Lancaster was at best negotiating with one hand tied behind his back. Whilst the Prime Minister and his team had apparently come to office fully aware of the danger posed by the Backstop – see this letter from Johnson to Tusk from August 2019 – the passage of the ‘Benn Act’ severely restricted their ability to push back against Brussels’ demands before the Withdrawal Agreement had to be concluded.

Thinking within government has since divided into two camps. The first, represented by Gove, is essentially facilitative. They don’t like the Protocol, but they recognise the extreme difficulty of resiling from it. This would certainly be in keeping with his more conciliatory approach to the parallel row over devolution.

Frost apparently takes a different view. His camp believes that with the best will in the world, the Protocol is simply not sustainable. Even if its first few weeks had not already witnessed several emergency summits, the triggering of Article 16, and the above loyalist declaration, there are deeper structural problems that mean it cannot be a stable foundation for a lasting settlement.  Specifically, the fact that the whole thing is rooted in EU law means that it is a ‘living document’, whose implications and scope will continually expand in line with EU regulation and rulings from the European Court of Justice. Its operation will therefore drag Northern Ireland farther and farther away from the economic orbit of Great Britain by default.

If you take this view, then it follows that the Protocol needs to be replaced, and sooner rather than later – just as the UKIM Act partially redressed Theresa May’s capitulation to the devocrats over post-Brexit powers. This is where Frost’s unilateral extension of the grace periods comes in.

Those privy to the thinking behind the move believe that it is much more defensible internationally than the UKIM gambit was. Especially in light of the dangerous situation with the loyalists and the role of empty shelves as a focus for unionist anger, the Government can defend a temporary measure intended to buy more time to find lasting solutions.

But as we saw when we looked at Gove’s negotiations, such solutions may not exist in the current framework. He notably refused to reassure Democratic Unionist MPs that the original grace periods were intended to buy time to make GB-NI supply lines work, rather than give Northern Irish businesses time to find new, EU suppliers. Which on the face of it makes another round of temporary fixes just another tactical get-out-of-jail (for now) card.

Unless, that is, the ambition is to have secured material changes to the Protocol by the time those extra six months are up.

This won’t be easy. Contra the somewhat complacent assumptions of some ERG members, it would be very difficult for the UK to simply resile from the Protocol. A short, sharp, UKIM-style threat is one thing. Standing indefinitely in the bad graces of the international law community quite another.

So there are two possible paths forwards. The first, assuming that Brussels absolutely refuses to play ball, is that Britain manages to argue that the EU is operating in bad faith and uses that to justify walking away from the agreement. The second is more attritional, and involves persuading the EU that reworking the Protocol is in the interests of both sides.

This might seem optimistic. But in the event of an actual return to violence, not to mention an endless succession of crisis talks, Brussels will be forced to choose between its hard-nosed defence of the Single Market and its homilies about the peace. British strategists apparently think that the EU places such a high value on its being seen as a moral (indeed, the most moral) actor that it is unlikely to stick to its current purist position in such conditions.

In the event of fresh negotiations, London would be aiming for a new arrangement which overturned two axions which May unwisely signed up to: that there be no change whatsoever to the border between the United Kingdom and the Republic of Ireland (which is often dressed up as a Belfast Agreement obligation, but isn’t); and that the EU should not have to adapt its legislative arrangements. Greater cooperation in other areas – maybe defence? – could be offered in exchange.

This is a bold strategy. To have any chance of working it will take months of sustained diplomatic and governmental effort. If the Prime Minister really has elevated Frost with such a mandate, it is vital that he be left in post long enough and be sufficiently empowered to pursue it. To let one half of your Union strategy collapse into chaos might be regarded as carelessness; to let both looks like negligence.

Henry Hill: The SNP’s disdain for MSPs is discrediting the Scottish Parliament

25 Feb

It’s been just over two weeks since we last looked in on the unfolding scandal currently gripping Scottish politics, and relations between the SNP and the opposition continue to sink to new depths.

For those who haven’t been following the story – which has received scandalously little attention in the southern press – the Scottish Parliament is trying to conduct an inquiry into how the Scottish Government mishandled complaints against Alex Salmond. But having pledged her full cooperation, Nicola Sturgeon seems to have been trying to thwart MSPs at every turn.

Public money has been spent preparing ‘forgetful’ witnesses. Requests to broaden the scope of the inquiry have been denied. Peter Murrell, the SNP’s chief executive and Sturgeon’s husband, contradicted his wife’s testimony and then tried to refuse to return and explain himself. Most significantly, the SNP has tried very hard to prevent Salmond from publishing his evidence.

First, the inquiry voted against publishing the former First Minister’s submission on a party-line vote, citing legal advice. When the Spectator secured a legal ruling to the effect that there was no barrier to publication, MSPs nonetheless voted against publication again, also on independence lines. The issue was referred to the Corporate Body of the Scottish Parliament, which finally voted to publish.

But rather than being the end of the saga, the Crown Office (Scotland’s prosecutors) wrote to it to demand further censorship. Salmond’s evidence was retracted and redacted. But as the whole document is now in the public domain, we can see that the redactions relate not to the danger of identifying vulnerable women, but to criticism of the First Minister.

Now MSPs are demanding that James Wolffe, the Lord Advocate, appear before Holyrood to explain himself, whilst the Crown Office has also been ordered to release additional evidence which Salmond claims will prove the existence of the conspiracy against him.

Regardless of whether or not that turns out to be true, the scandal is having a toxic effect on the reputation of the Scottish Parliament. There is mounting concern amongst the SNP’s opponents about the extent of its apparent grip on civic life. Mainstream pro-UK politicians are talking in dire terms about the implications for the standing of the Scottish Parliament, doubtless concerned about being outflanked as devosceptic sentiment rises on the movement’s outer fringes.

What happens next is anyone’s guess. It seems increasingly apparent that the Scottish Parliament can’t hold the executive to account. But Scots have another government. Does there come a point where Westminster needs to consider stepping in and setting up a proper independent inquiry into the whole business?

The sheer pace at which this scandal is developing certainly helps to explain why the Scottish Government seems so determined not to delay the upcoming Holyrood elections, even as Sturgeon insists the situation is so serious that she needs to offer a slower roadmap out of lockdown than Boris Johnson. (Only a cynic would suggest she might also not want to give broadcasters an excuse to stop televising her daily ‘coronavirus briefings’.)

But it remains to be seen if any of this actually sticks. The SNP have been accruing bad news stories for months – we’ve even made a recurring feature of them for this column – and yet their polling seems scarcely affected. With reports that the Prime Minister’s resolve to refuse a second referendum might be weakening, it becomes more important than ever that the opposition in Scotland make this count.

The Union policy Lewis wanted, why he left – and how his unit will replaced by a Cabinet committee

24 Feb

So far, it looks as if Oliver Lewis’s sudden departure as head of the Union Unit at Downing Street came down to a matters of personnel rather than policy, a casualty of the complex mess of court factions vying for the Prime Minister’s ear that our editor examined at the weekend.

This isn’t surprising. Having hand-picked the Vote Leave veteran to head up his Union strategy, it would be surprising if Boris Johnson suddenly found that he disagreed with his proposals. If there was a division, it seems to have been between the attack dogs and others, such as Michael Gove, who preferred not to stir the SNP up and to avoid allegations of ‘power grabs’.

(And indeed, we now here that the Chancellor of the Duchy of Lancaster has circulated a note to Cabinet emphasising the importance of a new project he’s been working on regarding ‘inter-governmental relations’ between Westminster and the devolved executives. What timing.)

But personnel decisions can have policy consequences, and there are at the very least people in Government who want to signal a change of course. The Times has been briefed  that the move represented a return of ‘grown-up government’, which in practise seems to mean undermining the Prime Minister’s (perfectly justified) determination to refuse the SNP a second referendum and dusting off uninspiring non-solutions such as a constitutional convention.

This contrasts strongly with the stance taken not only by Lewis but his predecessor, Luke Graham, who opened a recent article thus:

Much ink has been spilt on the problems faced by the Union, and solutions are hard to find without falling into the well-rehearsed arguments for federalism or simply handing more powers to the devolved administrations — both options I oppose. For my part I believe the strategy of giving nationalists more powers is as effective as giving a bully your lunch money — it will never satisfy their desires and will entrap you in a prism of fear and powerlessness.”

Rather than ‘just saying no for ever’, Lewis’s plan was seemingly built around a couple of core aims: to shift the battle with the separatists onto favourable turf, and to build up Whitehall’s capacity to actually coordinate and implement the subsequent campaign.

The first part would involve both new policies, built on research which suggested that existing pro-UK efforts were failing to tap into important arguments and wells of feeling amongst the electorate, and a new approach. The experience of bringing the UK Internal Market Act to the statute book in the teeth of SNP opposition had shown both that voters really are just not especially interested in the finer points of the devolution settlement and that the SNP, having been allowed to go on the offensive for so long, was an underwhelming foe when forced onto the back foot.

Meanwhile, the lessons learned getting Britain ready for leaving the European Union – and more specifically, getting Whitehall in a fit state to get Britain ready – would be applied to Union policy, rather than having orders from Graham or Gove getting lost or bogged down in inter-departmental haggling.

It’s now not clear what the status of any of this is, nor that Johnson is prepared to give anyone the sort of authority they would need to drive such an ambitious programme through against inevitable opposition from the business-as-usual brigade.

Indeed, we hear that there may not actually even be a successor to Lewis at the Union Unit, which may instead be replaced by a Cabinet committee bringing together Johnson, Gove, Rishi Sunak, David Frost, and the three territorial Secretaries of State, not one of whom will have the Union as their full-time responsibility. (Guido confirms this.)

All of this has not gone down well with many backbench Conservative MPs, who are concerned not only at the unprofessional impression given by the churn at the Union Unit but also by the mooted shift in tactics. Some were not aware until now of the divisions inside the Government over the correct approach, and few are well-disposed towards the conventional, conciliatory strategy hinted at by the Times.

Independent pro-Union campaign organisations are also disappointed, and several have apparently reached out to Lewis to see if elements of his strategy can be implemented without Downing Street’s imprimatur.

We journalists are sometimes accused of paying too close attention to inside-baseball stories such as who’s in and who’s out at Number Ten. It’s certainly true that they shouldn’t matter terribly much – and if these advisers were merely the agents of a strong prime ministerial will, they wouldn’t. But if Johnson really is prepared to see his entire policy on a key issue hinge on them, hirings and firings will remain events of outsize importance. Only he can change that.

Henry Hill: ‘Stronger together’ – Ministers put vaccine at the centre of its latest pro-Union push

28 Jan

Government puts pandemic response at centre of latest pro-Union push

Boris Johnson is to put the outstanding success that has been the British vaccine rollout at the centre of his pitch to Scottish voters on an upcoming visit to Scotland, the Daily Telegraph reports. It says:

“UK ministers hope that the nation’s world-leading delivery of coronavirus vaccines, and the development of the Oxford jab in Britain, will finally cut through with Scottish voters by offering a tangible example of the benefits of the Union.”

The First Minister has attacked the visit as ‘non-essential’, a charge dismissed by British ministers.

Matt Hancock also got in on the act this week, repeatedly saying in a press conference that the anti-coronavirus effort showed that the UK was “stronger together” – a likely candidate for the next referendum campaign slogan. The Herald reports that the Health Secretary particularly highlighted the way that the English ambulance service has supported its Scottish counterpart in recent days.

By contrast, Nicola Sturgeon has been accused of ‘failing to provide seven-day vaccination’ after jab figures from Sunday were half that of the previous day. The First Minister blamed a ‘data lag’.

However, research has shown that Scottish voters want to hear about what Scotland offers the Union, not just what the Union gives to Scotland. If he wants to build a case that speaks to that self-respect, the Prime Minister needs to make sure it stresses that the benefits of Britain are a two-way street.

Meanwhile, Douglas Ross has rightly said that unionists would boycott any effort by the Scottish Parliament to throw an illegal or unofficial referendum on Scottish independence. Experts have apparently branded plans for such a vote as ‘deluded and pointless’, but Sturgeon needs the prospect of it to keep her increasingly restive forces in line in the event that the Prime Minister refuses to grant a Section 30 order.

Gove should beware Brown’s guidance on the Union

Meanwhile, Michael Gove has reportedly reached out to Gordon Brown to try and strengthen the Government’s efforts to keep the United Kingdom together. The Chancellor of the Duchy of Lancaster has “compared notes” with the former Prime Minister, according to the Scotsman. Brown has recently warned that the UK risks becoming a ‘failed state’, and the paper says:

“Mr Brown is leading a review of Labour’s policy position on the constitution which could suggest a federal system with new powers for Holyrood and is expected to return its recommendations within 18 months. Such a model – which has been promoted by some within Scottish Labour for years – would see almost all powers apart from foreign policy and defence devolved to the Scottish Parliament. That option could be a third choice in any referendum.”

We can only hope that Gove, whilst polite, gave any such suggestion short shrift. Not only would it be absurd to put the option of an overall overhaul of the entire British constitution on a ballot paper issued to Scots alone, but we are well past the point when ‘more powers’ devolution had any credibility left as a unionist strategy – although it is telling that the Scotsman report undermines Brown’s efforts to pretend that his plans are not simply another tranche of ‘more powers’ thinking.

As I wrote for CapX this week, Brown actually has perhaps the strongest claim of any individual man to be the architect of the current constitutional calamity, and his analysis is very obviously built entirely around locating fault in the bits of the constitution he didn’t touch and directing scrutiny away from his disastrous legacy. Almost a year on from my clash with him in Newcastle last February, his answers are no stronger. A ‘British Isles Diplomatic & Defence Community’ is not what unionists should be fighting for.

Fortunately, we have reached the point where the tide is starting to turn against Brown’s thinking. The UK Internal Market Act was an important re-assertion of the prerogatives of the centre, and William Hague has noted (whilst being impeccably polite) that “constitutional tinkering won’t stop the Scottish nationalist juggernaut”. There’s no clever trick which will ‘solve’ the problem of the SNP. They need to be taken on and defeated.

Davies resigns, Davies returns

In case you missed it, the leader of the Welsh Conservatives stepped down this week after becoming embroiled in a scandal over alleged breaches of the Covid-19 regulations via ‘boozing’ in the Welsh Parliament.

Paul Davies and Darren Millar, a key ally and until recently Chief Whip, both denied wrongdoing but stepped down in the face of opposition attacks, media scrutiny, and a mounting backlash from the Tory grassroots. This was after he received the unanimous support of the Senedd group, apparently before they saw the official report into the incident and allegedly because they saw him as the only bulwark against his likely successor.

If true, that gambit failed and Andrew RT Davies is back in the driving seat in Cardiff Bay. A right-wing Brexiteer who is significantly closer to his activists on constitutional issues, he now has a few months to both take the fight to Labour and stave off a challenge on his unionist flank by Abolish the Welsh Assembly, which according to current polling is on track to enter the Welsh Parliament at the upcoming elections.

Scottish Parliament flexes its muscles in the Salmond scandal

Things continue to hot up in the battle between Sturgeon and Alex Salmond, as MSPs double down on their efforts to extract key evidence and the Scottish Government digs in to resist them.

The First Minister continues to insist that she did not mislead the Scottish Parliament, but Scottish Labour is now saying that her husband Peter Murrell, the SNP’s chief executive, should be investigated for perjury over his evidence to the official inquiry.

Even more significantly, MSPs have invoked legal powers “never before used” to compel Scottish prosecutors to hand over “documents obtained in the criminal investigation into Mr Salmond and passed to his defence” which they believe are key to getting to the truth. The deadline for the handover is tomorrow. Salmond has apparently been warned that he could be prosecuted if he referred to these documents.

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.