Breaking the link with Strasbourg: Assessing the constitutional implications of a British Bill of Rights

Roger

The Conservative government is considering a British Bill of Rights that would break the formal link between British courts and the European Court of Rights. Roger Masterman argues that this could have unintended and unpredictable consequences, perhaps creating a situation as constitutionally undesirable as the problem the Conservatives are hoping to solve.

The debate surrounding the enactment of a British Bill of Rights is in part premised on the belief that the decisions of the European Court of Human Rights – given effect pursuant to s.2(1) of the Human Rights Act 1998 (HRA) – exert too great an influence over domestic courts and domestic law. Critics of the Act argue that the courts’ application of s.2(1) has rendered decisions of the Strasbourg court effectively binding in domestic proceedings, while critics of the Strasbourg court argue that its expansionary tendencies have seen the Convention rights reach far deeper into domestic affairs than was intended by its authors.

Following the election of a Conservative majority administration in 2015 the Queen’s Speech contained the promise that the new government would ‘bring forward proposals for a British Bill of Rights.’ This promise is underpinned by an election manifesto commitment to ‘break the formal link between British courts and the European Court of Human Rights’ and entrust human rights decision making to a ‘supreme’ domestic apex court. This short post explores the nature of the link established by the HRA, and the parallel – and more longstanding – link established by the United Kingdom’s membership of the Convention system more broadly, before considering some options for an amended relationship governed by a British Bill of Rights.

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Northern Ireland: What Einstein would have said

The latest crisis in Northern Ireland looks like yet another déjà vu. It’s not that the situation never changes but the remedy offered by London remains stubbornly the same, writes Robin Wilson.

Events in recent weeks in Northern Ireland, including a feud in the IRA in Belfast and tottering power-sharing institutions at Stormont, have highlighted once more that, far from being a ‘post-conflict’ society with an ‘historic’ peace agreement, it remains a region in pre-post-conflict mode where history isn’t over just yet.

This is not, however, due to the ‘ancient hatreds’ often projected on to this complex canvas by the simplifying gaze of superficial observers. As the all-too-similarly dysfunctional nature of post-war Bosnia-Herzegovina and Lebanon demonstrates, it is the consistent application of stereotyping perspectives by representatives of the ‘international community’—the most powerful states with a regional investment—which is the real problem. In all three related agreements—Belfast (1998), Dayton (1995) and Taif (1989)—it has led to the same outcome.

The first step is a conceptual hoovering up of the unique individual diversity of the populace into communal tribes—Protestants and Catholics; Serbs, Croats and ‘Bosniaks’; Maronites, Sunni and Shia Muslims. This fails to recognise the fundamental difficulty that, as the late Italian political scientist Norberto Bobbio pointed out, every democratic constitution is based on the individual citizen. The inevitable victim of this Realpolitik is universal norms: every human rights convention, including those enshrining minority rights, requires the individual to be the rights-bearer; and the rule of law is meaningless unless state institutions are impartial among diverse citizens.

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Northern Ireland 1.01: A revision class for those with a sense of déjà vu

Alan_Rialto2

Northern Ireland’s devolution settlement seems fragile again. In this post, Alan Whysall explains the constitutional framework and political background to the latest crisis. It provides factual background for our next two blogs on Northern Ireland, to be posted in the next two weeks.

Northern Ireland politics are largely split between Unionists-a majority, though smaller than previously, represented by the Democratic Unionist Party DUP) and the Ulster Unionist Party (UUP); and nationalists, represented by Sinn Fein and the Social Democratic and Labour Party (SDLP). These parties typically draw more than 80% of the vote, and are in the Northern Ireland Executive, along with the Alliance Party, which has support from both communities.

The devolution arrangements largely reflect the Good Friday (or Belfast) Agreement of 1998, given effect by the Northern Ireland Act 1998. But the Agreement is more than a devolution settlement. It provides for Northern Ireland’s constitutional status, in a way now very widely accepted, so that whether Northern Ireland is part of the UK or a United Ireland is a matter decided by a majority of people there voting in a poll. Opinion poll evidence suggests there is limited enthusiasm for change – even among Catholics, who are generally understood to be nationalist. The Agreement also make provision for structures for cooperation within the island of Ireland, and more widely, including the other devolved governments; a defined Irish role in Northern Ireland affairs; and rights protection.

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Making ‘reserved powers’ work for Wales

A ‘reserved powers’ approach to devolution in Wales would offer a number of significant advantages, but applying such a model will not be straightforward. Drawing on research conducted with the Wales Governance Centre and the Constitution Unit for a report published this week, Alan Trench outlines the key challenges.

The debate about a ‘reserved powers’ model for the National Assembly has to be one of the most obscure legal issues to enter public debate.  The basic idea is straightforward: that the powers of the National Assembly should be defined by setting out what it cannot do, rather than by defining ‘subject areas’ where it does have power to pass laws.  The idea is scarcely novel – it was mooted by the Richard Commission in 2004, and repeated by the Silk Commission in 2014 – but it has acquired political legs following the St David’s Day process with all the parties agreeing to adopt it.

A ‘reserved powers’ approach would offer a number of significant advantages.  It would mean that Welsh devolution works in a similar way to that in Scotland and Northern Ireland – important both symbolically and as a way of making it clearer to the public how a devolved UK works.  It also offers a way to resolve the puzzle created by the UK Supreme Court’s jurisprudence about devolution, and particularly its judgment in the reference about the NHS Recovery Of Medical Costs for Asbestos Diseases (Wales) Bill, [2015] UKSC 3, by enabling the Assembly to legislate for all matters save expressly those reserved to Westminster.  In broad terms, the Scotland Act 1998 provides a valuable model – not necessarily so much in the list of reserved matters in Schedule 5 as in the provisions of the Act for identifying the scope of those reservations and interpreting them in the courts.   At present, the list of proposed reserved matters suggests a list of matters Whitehall departments do not wish to see devolved, unsupported by any wider rationale or principle.  That is not the right way to proceed when drafting a constitution.  It needs some clearer and stronger basis, rooted in a conception of what the UK needs to do at the centre (and why), and what is best done by devolved governments.

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Judges and select committees: A developing accountability culture

Patrick Obrien

The specific scenario in which select committees seek evidence from a judge who has chaired an inquiry generates a lot of heat and light. But Patrick O’Brien indicates that the research he conducted with Robert Hazell shows the practice of judges giving evidence to parliamentary committees has been widely accepted as a positive and productive form of engagement. What is more, it creates opportunities for dialogue and for judicial accountability.

When is a judge not a judge? Lady Justice Hallett carried out a public inquiry into the ‘On the runs’ scheme in 2014. In its report on the same issue in March 2015 the Commons Northern Ireland Affairs Select Committee commented rather sternly that

we chose not to summon Lady Justice Hallett to attend, but we consider it to be a regrettable discourtesy to Parliament that she declined our initial invitation to give evidence to the Committee, especially as she had not acted in a judicial capacity when carrying out her review‘. [at para. 11]

Is a judge who chairs an inquiry acting as a judge, or acting as an inquiry chair? Judges, concerned about the implications of being drawn into disputes that are often highly politically charged, tend to believe that they are acting as judges and that their reports should speak for themselves. Parliamentary committees can find this attitude defensive and frustrating. Several years ago the Commons Cultural, Media and Sport committee ran into a similar conflict with Lord Justice Leveson in relation to evidence he gave as chair of the inquiry into phone hacking.

The specific scenario in which committees seek evidence from a judge who has chaired an inquiry generates a lot of heat and light. However, research I have done with Robert Hazell suggests that such ‘judge-led inquiry’ sessions, despite the problems that may attend them, make up only 5% of all evidence sessions these committees have with judges. The reality is that the vast majority of judicial evidence sessions are uncontroversial. The practice of judges giving evidence to parliamentary committees has been widely accepted as a positive and productive form of engagement by both judges and parliament.

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Can constitutions improve democracy? Sometimes, but not always

Todd-Eisenstadt-80x108A-Carl-LeVan-80x108Tofigh-Maboudi-80x108

Does adopting a constitution lead to better democracy? Not necessarily, write Todd A. Eisenstadt, A Carl LeVan, and Tofigh Maboudi, who studied 138 constitutions from a 37 year-period. They find that in many countries, the constitution-making processes did not incorporate broad public consultation, meaning that the drafters were often able to grab power by codifying benefits for themselves and for their supporters.

In his first visit to Tunisia as the Secretary of the State in February 2014, John Kerry told Tunisian President Mohamed Moncef Marzouki that the United States is impressed with the country’s new, democratic constitution.  “The Tunisian people have ratified a new constitution, a constitution that is rooted in democratic principles – equality, freedom, security, economic opportunity, and the rule of law,” he said, “and it is a constitution that can serve as a model for others in the region and around the world.”  But other countries in the region did not have such promising results. In fact the country that inspired the Arab Spring is the only Arab democracy with political rights and civil liberties similar to those of the Western democracies, thanks to its democratic constitution. But why haven’t social movements in nations such as Egypt and Morocco led to democratic transitions, despite extensive efforts to craft new constitutions?

These countries are not alone, and are part of a worldwide trend towards “hybrid” regimes that mix features of democracy with authoritarianism. In recent research we studied a sample of 138 constitutions between 1974 and 2011 and find that three years after these constitutions were approved, over half of them did not improve levels of democracy. The reason, we argue, is that most of these countries did not incorporate broad public consultation which, unlike constitutional processes of the 18th century, is so vital for the democratic outcomes of constitutions.

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Beyond the referendum: “2016 should be the year in which Scottish devolution grows up”

Jim-Gallagher

It has now been a year since the vote on Scottish independence. Jim Gallagher considers how divisions which emerged between yes and no voters during the campaign have persisted, and the challenges this creates. He argues that Scotland now faces a different set of choices–not what country to belong to, but what sort of country it really wants to be.

Zhou Enlai is said to have quipped that 200 years was too short a time to judge the effect of the French Revolution. 12 months certainly isn’t long enough to assess the legacy of the Scottish referendum.

It was certainly an extraordinary process. For two years, Scotland talked about nothing but Scotland, and an unprecedented number of people eventually cast their vote, one way or another.

Energy and Division

The debate was extraordinary, sometimes energising, but also deeply divisive. Not just because people took opposing views. Yes voters – rationally or not – were hopeful; they wanted things to change and independence represented change. Many no voters were fearful; they had not asked to make this choice, and feared disruptive change would be forced on them.

The campaigning was unprecedented: the intensity of an election, but lasting two years. The opposing campaigns talked incessantly about Scotland, but hardly engaged with each other. The Scottish government’s doorstop of a White Paper was a partisan, not a government, publication. The relentless positivity of the yes campaign spoke primarily to the heart. Questions of economics or policy choice were airly dismissed as irrelevant, or establishment bluff. Better Together’s head was more firmly screwed on, but it’s hard to make saying no, even ‘no thanks’, sound positive. The UK government’s publications argued a case, but without much pizzazz.

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Parliament and legislation: Perhaps Westminster is more powerful than you think?

Dan GoverMeg-Russell

Government defeats on the floor of the Commons, as seen last week, remain exceptionally rare, perpetuating assumptions that parliament is relatively weak. However, through analysis of 4361 amendments to 12 government bills, and over 120 interviews, Daniel Gover and Meg Russell find empirical evidence that parliament has significantly greater influence on government policy than is often assumed.

The Westminster parliament occupies a highly visible place within British politics and policymaking. Despite this, the conventional wisdom is that parliament’s impact on public policy is relatively weak. In recent years, Westminster has been dismissed by commentators as ‘an elaborate rubber-stamp’, ‘a legislature on its knees’, and even ‘God’s gift to dictatorship’. This pessimistic account has been largely shared by academics, albeit with greater nuance, who have tended to regard Westminster as an extreme example of an executive-dominated legislature. One of the primary reasons for this assessment is that there are few explicit signs of conflict between parliament and the executive. For example, government defeats on the floor of the Commons, as was seen last week over Europe, remain exceptionally rare.

Yet recent research has begun to challenge this consensus. One of the central strands to this new research agenda is our own major investigation into the Westminster legislative process – the first results from which were recently published in Parliamentary Affairs. Our study is based around detailed analysis of the passage through parliament of 12 case study bills: seven from 2005-10 under Labour, and five from 2010-12 under the coalition. The bills were selected to reflect the diversity of legislation considered by parliament. Some were high-profile and contentious, such as Labour’s Corporate Manslaughter and Corporate Homicide Bill, its Identity Cards Bill, and the coalition’s Public Bodies Bill. But others were more routine and less controversial, on which different dynamics might be expected to apply, such as the coalition’s Budget Responsibility and National Audit Bill and Labour’s Energy Bill. Our research involved painstaking analysis of the origins and outcomes of over 4000 legislative amendments proposed to these bills, as well as around 120 interviews with key actors on them including ministers and their shadows, backbenchers, civil servants, and outside pressure groups. Our findings strongly suggest that the Westminster parliament is far more influential on legislation than is often assumed.

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The Queen’s Sorpasso

bob-morris

9 September 2015 marks the day Elizabeth II becomes the UK’s longest reigning monarch. Bob Morris takes this milestone as an opportunity to reflect on the evolution of the monarchy in relation to the constitution in recent years.

Today Queen Elizabeth II’s term exceeds Victoria’s and she becomes the nation’s longest reigning monarch. The institution she heads is not subject to any current serious challenge. Indeed, it is now probably as popular as it has ever been.

Milestones like this prompt reflection and the following attempts to consider what the present reign tells us about the monarchy and the constitution.

Resisting republicanism

To state the obvious first, the monarchy has survived. That should be regarded as an achievement in itself and not assumed to be a constitutional given. The very concept of monarchy is hardly attuned to the spirit of the times – increasingly egalitarian, democratic, undeferential, worldly, multicultural, secular. Some maintain that monarchy represents a vanished feudal worldview of fixed hierarchy, deference, social immobility and religious uniformity.

Despite these claims there is, apart from small sections of the chattering classes, no serious pressure to abolish the monarchy and replace it with a republic. With the possible exception of Australia, this appears to be the position too in the other former ‘settler’ dominions of Canada and New Zealand. Nor does a concerted move against the monarchy seem likely in the twelve other Commonwealth ‘realms’ of which the Queen is head of state. Polling support in the UK for a republic has only ever once – and in evanescent special conditions – just exceeded 20 per cent. Republicanism has yet to establish any real political traction.

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In order to sustain itself, the UK must become a new and different Union

Jim-Gallagher

Jim Gallagher reflects on what the Scotland Bill tells us about the Scotland-UK relationship and devolution more broadly. He argues that the Bill presents a challenge to the unwritten constitution, and that now is the time to clarify and codify the territorial aspects to make a statement about how and why the Union hangs together.

The Scotland Bill calls to mind, irresistibly, the aphorism of Lampedusa: if things are to stay the same, they’ve got to change. If it is to sustain itself as a Union, the UK must become a new and different one. The Scotland Bill should be the catalyst for change, but this isn’t only about Scotland.  It is about how the UK understands itself as a territorial state. Like Scotland, Wales and Northern Ireland understand the UK as a voluntary association bound together by common interests and shared experience, in many ways like a federal country. But too many at the centre of the UK see a unitary state with some untidy territorial edges. In essence this understanding is based on a half-baked notion of parliamentary sovereignty. If the UK wants to stay together, this has to change.

The Scotland Bill makes the nature of Scotland-UK relationship more explicit, and implies similar things about Wales and Northern Ireland too. The UK is a multinational state, an association whose membership is voluntary, and that is now very explicit for both Northern Ireland and Scotland. Scotland has always had its own institutions, separate from the UK’s. For first three centuries after the union, these were Scottish, but undemocratic. For the last 15 years, Scottish institutions have been accountable through the Scottish Parliament. The Scotland Bill puts it beyond doubt that this is irreversible. Devolution is permanent, and the Scottish Parliament is master in its own house: its power is paramount in devolved matters, and it controls its own composition. That is the point of the constitutional provisions of the Bill: statements of the obvious if you like, but that will be true of many constitutions–if you know how the institutions work in practice, you will find the constitutional legislation almost banal.

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