Following the break down of talks in Northern Ireland, what now?

Northern Ireland’s political parties have failed to reach an agreement that would allow a new power-sharing Executive to be formed by today’s deadline. This will have important legal and political consequences, possibly including the re-introduction of ‘direct rule’ from Westminster. These issues are looked at here by Alan Whysall.

Political negotiations have been going on since the election of 2 March, which was brought about by the decision in January of Martin McGuinness of Sinn Féin (who has since died) to resign as deputy First Minister. Yesterday, however, Sinn Féin said that the talks process had ‘run its course‘, and they would not be making nominations to Executive offices today. They did not say where the political process might go from here, but professed commitment to the devolved institutions returning.

Sinn Féin have significant grievances that they say must be resolved before a new Executive is formed. They have an effective veto on that happening since, as the largest nationalist party, they must nominate the deputy First Minister. Among their demands has been that the leader of the DUP, Arlene Foster, should not become First Minister until the report of an inquiry into the Renewable Heat Incentive affair that was the ostensible trigger for the election, potentially a year away. That condition would be very hard for the DUP to meet. Latterly, though, they have given precedence to their demands of the British government in relation to what they assert are ‘existing commitments’ as to ‘rights’ of various sorts.

Some may question whether Sinn Féin want to be in devolved government at all at the moment. There is a range of grievances that their base genuinely feel. But in large measure, this may be on account of Brexit. Brexit is the first development since 1998 with a significant effect on the operation of the Good Friday Agreement which was not agreed by both sides of the community in Northern Ireland. It would be extremely uncomfortable for Sinn Féin to be in government, carrying out British rule in Ireland, as hard-line Republicans would put it, while Brexit was being implemented, potentially including barriers of whatever sort (and anything will be an irritant politically) being introduced at the land border within the island.

Northern Ireland views on Brexit appear to have had no impact on the approach in London. A political stand-off against the British government might gain more traction. It may also play well for Sinn Féin politically north and south of the border. But renouncing a role in government in Northern Ireland in favour of British ministers, for an uncertain but perhaps protracted period, is not attractive for them either.

At all events, by today, the main parties in the Assembly elected on 2 March ought by law to have nominated a First and deputy First Minister. They are also scheduled to fill the other ministerial posts in the Executive, and the Assembly Speakership. The Assembly was due to meet at 12 noon for the purpose, and the legal shutters are deemed to come down at 4pm. If the parties do not appoint the FM and DFM by that time their powers disappear and the Secretary of State comes under an obligation to set a date for another Assembly election. There is legal authority that he does not have to do so immediately however, and there is speculation that he might hold off for a while, seeking to reinstate negotiations. He appears likely to make a statement in the Commons tomorrow.

Like his predecessors in similar situations, the Secretary of State has been playing up the prospect of a further election as a threat. In fact that might rather appeal to both of the two big parties, who might hope to pick up seats from smaller ones. But there is no sign that an election would do anything to facilitate political agreement. The arithmetic would not change radically. The campaign would probably intensify the reversion of the political debate in Northern Ireland to the old unionist-nationalist, them and us, stand-off, and away from the era of working together which Martin McGuinness personified.

If there are no Executive appointments, and no elections, some Westminster primary legislation will be needed after today. That might be to permit the selection of an FM and DFM, if there is a late breakthrough; or give more time for negotiation if the prospects radically change. And in those contexts there might be powers to fix aspects of Executive business in the short term, since there are no ministers at present, nor any budget for the new financial year.

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Brexit at Westminster: can parliament play a meaningful role?

On March 13 the Constitution Unit hosted a seminar on Brexit at Westminster, exploring the role parliament has played in the lead up to the triggering of Article 50 and that it might play in the forthcoming negotiations. The panel consisted of Hilary Benn, Chair of the House of Commons Exiting the EU Committee; Arnold Ridout, Counsel for European Legislation at the House of Commons; and Baroness (Kishwer) Falkner, Liberal Democrat peer and Chair of the Financial Affairs Sub-Committee of the House of Lords EU Committee. Ascher Nathan reports.

Introducing this seminar on Brexit at Westminster, Constitution Unit Director Meg Russell remarked on the perfect timing: the Article 50 Bill would have its final votes that evening. Despite earlier concerns that parliament would be shut out from any influence over Brexit it has played a central role in the lead up to the triggering of Article 50 through debates, questions, the work of select committees and, following the judgement in the Miller case, the passage of the Article 50 Bill. The next big piece of legislation will be the ‘Great Repeal Bill’. Thus, the answer to the question of whether parliament can play a meaningful role in Brexit should be considered as a resounding ‘yes’ – it has already begun to do so. And yet if the Miller case and subsequent events have been a reminder about the role parliament can play, questions still remain about exactly how it will influence debates going forward.

The three speakers each brought a different perspective. Hilary Benn, Labour MP for Leeds Central, has served as a cabinet and shadow cabinet minister and is now Chair of the House of Commons Exiting the EU Committee. Arnold Ridout is Counsel for European Legislation at the House of Commons, and legal adviser on EU matters to the Commons select committees. Baroness (Kishwer) Falkner, a Liberal Democrat peer, sits on the Lords EU Committee and chairs its Financial Affairs Sub-Committee.

Hilary Benn

Hilary Benn explained that the Exiting the EU Committee was a mixed group of Leavers and Remainers and thus his role as chair was to establish consensus and direct their work in a constructive manner. In what he described as the most complex trade negotiations since the end of World War II, with the Great Repeal Bill to be an ‘enormously daunting task for any government,’ Benn pledged that parliament would ‘not be a bystander’ and intended instead to be a key participant in the policy process. Fundamentally, he challenged the government claim that persistent parliamentary involvement in the negotiations would undermine ministers’ position and lead to bad deals, noting Nick Clegg’s comment that the government’s position implied that only dictatorships were in a position to make treaties.

For Benn, the complexity of Brexit was a great challenge. He talked at length of numerous examples of areas where exiting the EU would prove difficult: passporting for financial services; regulation of medicines (where pharmaceutical companies will seek approval in the largest markets first) resulting in UK patients accessing them later; the regulation of data handling between states. Whilst this is a huge challenge for government, it is equally difficult for the Brexit select committee to address in the limited time available, as well as challenging for the EU. Benn agreed with the government’s position in favouring parallel negotiations for the divorce settlement and the new framework because the eighteen-month window given by Michel Barnier, chief EU negotiator, is so tight. Benn thinks it will be ‘impossible’ to agree a comprehensive trade negotiation in the time available and so called for a transitional agreement to be drafted.

Finally, he discussed the Great Repeal Bill, and the nature of the detail that should be scrutinised. He called for openness by government on both the negotiations regarding transitional arrangements, and the divorce settlement itself (whilst anticipating that much of this information may be gleaned through the ‘leakiness’ of Brussels). He wanted to see a white paper on the Great Repeal Bill, and information on how subsequent legislation will be formulated: will it largely be secondary legislation, authorised by Henry VIII clauses? Benn was concerned by the fact that so far government had had to be ‘pushed and cajoled’ into understanding that parliament would not be bystander: ‘We are not a string, we are very attached to our democracy … and we intend to do our job.’

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A second Scottish independence referendum without a s.30 Order? A legal question that demands a political answer

In this blog Stephen Tierney argues that the legality of a unilateral referendum organised by the Scottish Parliament is a grey area. He also offers personal reflections from his experience as a parliamentary adviser at the time of the 2014 referendum and contends that a referendum held without an agreed process would have been damaging then and would be damaging now. It is incumbent upon both governments to ensure that a political solution to the current dispute is achieved and that, in particular, such a divisive issue is not left to the courts to settle. 

The Scottish Parliament today concludes its debate on whether to request from the UK parliament a ‘s.30 Order’ under the Scotland Act 1998. This would provide unequivocal authority for the Scottish Parliament to hold a second independence referendum. Westminster is likely to refuse this request for the time being at least, raising the question of whether the Scottish Parliament can legislate to hold a referendum without such consent.

In 2012 I argued that there was a plausible case to be made that the current powers of the Scottish Parliament do indeed allow it to legislate on the subject of an independence referendum; a view shared by several colleagues. The argument was that a consultative exercise, asking the electorate if they favoured an independent Scotland, could be legally permissible. Crucial to the legality of such a referendum, however, would also be its legal inconsequentiality; it would not bind the UK government to give effect to a pro-independence outcome.

I still consider this argument to be valid; the relevant devolved powers of the Scottish Parliament have not changed since that time. But I went on to serve as Constitutional Adviser to the Scottish Parliament Referendum Bill Committee which helped shape the bills (here and here) which regulated the 2014 referendum. What became clear to me was that, regardless of whether one was a Yes or a No voter, it was far better in terms of fostering a conducive environment for debate that a referendum, without the consent of the UK parliament, was not attempted. The fact that the 2014 referendum was the product of the Edinburgh Agreement between the Scottish and UK governments is central to how commentators now look upon that referendum as a valid and deliberative, if not uncontentious, exercise in popular decision-making.

In this blog I will briefly set out the zone of legal uncertainty, one which does suggest that the Scottish Parliament’s powers in this area are potentially broader than is often claimed. My main goal, however, is to make a plea for political restraint by both governments in recognition that this is fundamentally an issue of politics and not of law, and that in the interests of a healthy, democratic political process, it is incumbent upon the two governments not to allow an uncertain area of law to become a political football.

I would emphasise that this is not a call for unilateral self-restraint by the Scottish government and Scottish Parliament; both sides must work to ensure that this matter does not end up before the courts with potentially disastrous consequences for the reputation of the UK’s Supreme Court and the health of our democracy.

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Brexit presents parliament with daunting challenges but steps are being taken to help it meet them

Brexit presents parliament with daunting challenges, both politically and procedurally. In this post Arnold Ridout, Counsel for European Legislation at the House of Commons, highlights some of these and explains what steps are being taken to held ensure that parliament performs its role effectively. The post is adapted from a talk he gave at a Constitution Unit seminar on ‘Brexit at Westminster’, held on 13 March.

As Counsel for European Legislation in the House of Commons I can be called upon to assist the House or any of its select committees on EU law matters. I have a formal role with the European Scrutiny Committee and the Committee for Exiting the EU, both of which have standing orders explicitly providing for assistance to be given by Speaker’s Counsel. For this purpose I generally represent her.

Uncertainty

I do not know if it is fair to say that parliament as an institution was as ready for the referendum result as the government was. There was a good deal of uncertainty at that time as to the very basics, such as the Brexit process itself and even more as to what role parliament would play. In some ways that might be regarded as an advantage; by leaving a clear field on which parliament could put down its markers, and influence at an early stage the formulation of the process and the policy. On the other hand it created the risk of lack of focus or focus on the wrong issues. In particular, it was unclear what tools were available to parliament to exert its influence. This remains the case to a certain extent.

The government has now committed to putting ‘the final deal that is agreed between the UK and the EU to a vote in both Houses of Parliament’. This is important as having a final say on the outcome could give parliament a real handle on the negotiations. However, if the Article 50 notice is not revocable, or revoked, then the choice for parliament looks like ‘deal or no deal’. Five eminent lawyers disagree and have gone as far as suggesting not only that the Article 50 notice is revocable, but that a further act of parliament is required to either agree the deal or authorise the UK’s departure from the EU without any deal. If correct it means that parliament has a further, and unilateral, chance to decide whether the UK leaves the EU or not even after the Article 50 notice has been served.

The government has committed to ensuring ‘that the UK Parliament receives at least as much information as that received by members of the European Parliament.’ We do not yet know with certainty what that entails, and in particular whether it includes something similar to the arrangement in trade negotiations whereby the European Parliament receives ongoing explanations as to how its view has been put into effect during negotiations.

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LGBT candidates in UK elections: how much has changed?

On March 6 the Constitution Unit hosted a panel discussion on LGBT candidates in UK elections, exploring the UK parliament’s evolution to including more openly LGBT politicians than any other state legislature. The panel, chaired by Dr Jennifer Hudson, consisted of Professor Andrew Reynolds and four of the UK’s most prominent LGBT politicians: Angela Eagle, Baroness (Liz) Barker, Nick Herbert and Joanna Cherry. Evangelina Moisi reports.

Introducing the seminar on LGBT candidates in UK elections, Professor Andrew Reynolds posed a question to the audience: why do people care about the sexual orientation of candidates and elected officials any more? Over the past few decades, the UK has undergone major transformations in its treatment of LGBT citizens, including abolishing Section 28 in 2003 and legalising gay marriage in 2013. The UK parliament has also become the most inclusive parliament for LGBT representation in the world, with 39 ‘out’ LGBT MPs. Despite this political (r)evolution Reynolds suggested that not everything is settled: homophobia and transphobia are still significant in today’s society and present challenges for both adults and children in navigating their everyday lives.

This seminar provided the opportunity to understand the perspectives and narratives of those who have lived through this experience. Reynolds underscored that as ‘out’ LGBT politicians the members of the panel have all overcome significant hurdles to transform political life, values, and the laws of today.

Professor Andrew Reynolds

Opening the seminar, Reynolds presented highlights from some of his research, noting that the number of LGBT parliamentarians is still a tiny slice of the world’s representation. Only 0.4% of the 46,000 parliamentarians around the world identify as LGBT. However, the parties with significant representation in the House of Commons are among the most LGBT inclusive in the world – the Conservatives and Labour have 17 and 14 LGBT MPs respectively, whilst the SNP’s 8 (out of 54 MPs) makes them the ‘gayest’ parliamentary group in the world. Reynolds further elaborated that right-of-centre parties have actually overtaken left-of-centre parties in terms of LGBT MPs, in the UK and around the world. Gay rights have become less of a partisan issue, with conservatives becoming socially liberal but remaining economically conservative.

At the 2015 UK general election 154 LGBT candidates standing in England, Scotland, and Wales, enabling Reynolds to explore whether being an LGBT candidate was still an electoral liability. His research found that LGBT candidates did not perform worse than their straight colleagues and, perhaps surprisingly, gay candidates performed better in rural areas (a 2% boost). He also found that LGBT candidates did only slightly worse in areas with high Muslim populations. At the party level, LGBT Labour candidates performed better than their straight counterparts whereas LGBT Conservative candidates performed much better than their straight counterparts in winnable Conservative seats.

On a final note, Reynolds discussed Chris Smith’s ‘coming-out’ in 1984. Whilst the moment was greeted with a media backlash at the time, Smith is now the Master of Pembroke College, Cambridge and has returned to the highest echelons of British society as a gay, HIV-positive man. Reynolds emphasised that such dramatic changes in political life have been driven by the likes of Smith and the LGBT politicians present on the panel.

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A second independence referendum in Scotland: the legal issues

First Minister Nicola Sturgeon yesterday declared the Scottish government’s intention to hold a second referendum on independence by spring 2019. In this post Stephen Tierney discusses the steps that have to be gone through before this is realised. He suggests that although a referendum is not inevitable the Scottish government are not bluffing about it – if, as seems likely, it can gain a majority in the Scottish Parliament to request a s. 30 Order, and can convince Westminster to grant this, then the path will be set for a referendum process that could see Scotland leave the UK just as the UK leaves the EU.

Scottish First Minister Nicola Sturgeon yesterday announced the Scottish government’s intention to hold a second referendum on independence between the autumn of 2018 and the spring of 2019. The move comes ahead of the start of Brexit negotiations under Article 50 of the Treaty of European Union, expected to be triggered by the end of the month. The next two years are set to be consumed by two parallel processes that will see the UK leave the EU and could also see Scotland leave the UK in an effort to remain within the EU.

Can the Scottish Parliament hold a referendum without the consent of Westminster?

Whether the Scottish Parliament can unilaterally hold an ‘advisory’ referendum on this issue has never been finally resolved. But it seems clear that the Scottish government does not propose to test this issue; instead it will seek the consent of Westminster to a so-called s. 30 Order, thereby ensuring that the UK government will have to accept the referendum result.

A s. 30 Order would involve a temporary transfer of power from the UK parliament to the Scottish Parliament to allow the referendum to go ahead, along similar lines to the 2014 process. The Scottish government indicated its intention to go down this route in its white paper, ‘Consultation on a Draft Referendum Bill’ published in October last year, and this was also confirmed by the First Minister today when she stated that she will ask the Scottish Parliament next week for permission to request a s. 30 order.

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The Italian Constitutional Court judgement on the ‘Italicum’ electoral law: another new reform for Italy?

Last month the Italian Constitutional Court declared several crucial elements of the ‘Italicum’ electoral system for the Chamber of Deputies, approved by parliament in 2015, to be unconstitutional. Further electoral reform is therefore now being discussed, ahead of an election that must take place by next spring at the latest. Roberta Damiani explains the background to the judgement and its implications.

On 25 January the Italian Constitutional Court announced its judgement on the latest electoral law for the lower chamber of Parliament (the Chamber of Deputies), promulgated by Matteo Renzi’s government and approved in 2015, known as the ‘Italicum’. While retaining some of its features, the Court declared that several of the Italicum’s most crucial elements are unconstitutional, and modified them accordingly. It effectively turned what would have been a majoritarian system into a proportional one.

Before examining this judgement in detail, we need to understand how it fitted into broader debates about the appropriate constitutional structure for Italy.

The Constitution of the Italian Republic, founded in 1946 in the wake of the experience of fascism, was based on the principle that power should be dispersed, in order to prevent the rise of another dictatorship. This was achieved through the creation of two coequal parliamentary chambers: not only did both have to agree all legislation; in addition, either could dismiss the government through a vote of no confidence. Some level of governability was achieved only by the fact that both chambers were directly elected through proportional representation: their compositions were almost identical, such that they rarely disagreed sharply with each other.

Nevertheless, by the 1980s there was a widespread perception that the dispersion of power had gone too far. The need for fundamental reforms became particularly acute after a major corruption scandal, known as ‘Tangentopoli’, that was uncovered in 1992 and led to an almost complete breakdown of the party system. In response, a new electoral system – the so-called ‘Mattarellum’ – was introduced in 1993, which reduced electoral proportionality in both chambers.

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