Category Archives: International

Sunak’s constitutional dilemmas

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Today the Unit publishes Monitor 83, providing analysis of constitutional events over the last four months. In this post, which also serves as the issue’s lead article, Meg Russell and Alan Renwick argue that while Rishi Sunak’s premiership has seen a decline in constitutional turbulence compared to the recent past, various points of constitutional tension remain, creating dilemmas both for him and his party political opponents.

Successive issues of Monitor in recent years have told a story of constitutional unease. The premierships of Boris Johnson and Liz Truss saw checks and balances eroded and the rule of law questioned. The last issue – published in November 2022 – reported Rishi Sunak’s promise on entering Downing Street to restore ‘integrity, professionalism and accountability’; but too little time had passed by then to assess his delivery. Four months on, the picture remains complex and mixed. Sunak clearly faces challenges on the constitutional front, particularly in keeping his restive party together.

On the positive side, the Prime Minister appointed a new Independent Adviser on Ministers’ Interests in December – his predecessor having denied that she needed one – and in January acted swiftly on the new Adviser’s conclusion that the actions of the Chairman of the Conservative Party, Nadhim Zahawi, ‘constitute[d] a serious failure to meet the standards set out in the Ministerial Code’ (see story: Standards in Government). In February, the Deputy Prime Minister, Dominic Raab, whose conduct remains under investigation, said that he would resign if found guilty of bullying officials.

The government’s approach to relations with the European Union also moved from confrontation to trust-building. This shift helped Sunak to unlock a significantly improved deal on the Northern Ireland Protocol in February (see story: The Northern Ireland Protocol). In the wake of that agreement, the Johnson-era Northern Ireland Protocol Bill – through which the UK would have unilaterally arrogated to itself the right to deviate from the Protocol’s terms, almost certainly in violation of international law – was withdrawn.

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Tomorrow’s US midterm results could have serious consequences for constitutional rights and the health of democracy in the United States

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Tomorrow’s midterm elections in the United States will see voters cast ballots to elect members of the House of Representatives and a third of the membership of the Senate. James Cleaver analyses the state of the campaign, explains the potential consequences should Republicans regain control of either chamber (or both), and draws our attention to some of the key individual contests.

The United States will hold its midterm elections tomorrow. At the federal level, all 435 seats in the House of Representatives and 35 out of 100 Senate seats are being contested. There are also a large number of significant state-level races taking place across the country.

Understandably, much attention has been paid to what these elections might mean for President Joe Biden’s legislative agenda or for attempts to reinstate abortion rights across the country following the Supreme Court’s decision to overturn Roe v. Wade. Yet these midterms will have other constitutional ramifications, from the health of the United States’ democracy to the composition of its judiciary.

House of Representatives

The most visible work of the House of Representatives in the current Congress has been undertaken by the Select Committee to Investigate the January 6th Attack on the United States Capitol. The committee has reviewed documents, interviewed witnesses, and held nine public hearings about the events leading up to and including 6 January. Most recently, it has subpoenaed former President Donald Trump, although he is unlikely to ever testify.

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Arrests, constitutional tensions and the UK government’s relations with Overseas Territories

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Overseas Territories flags (CC BY 2.0) by Foreign, Commonwealth & Development Office.

The arrest of the Premier of the British Virgin Islands in April and a Commission of Inquiry’s finding of ‘parlous failings in governance’ have raised questions about the British government’s relations with and stewardship of its Overseas Territories. These issues are raised in moments of crisis, following natural disasters, acute periods in the several sovereignty disputes linked to the Territories, or headline-grabbing scandals. George Fergusson argues that they merit more regular review.

The decision on 8 June of a British official to reject the principal and firm recommendation of a Commission of Inquiry by a former Court of Appeal judge has produced little political or media stir. This is largely explained by the decision being one concerning a British Overseas Territory, in this case, the British Virgin Islands (BVI).

The recommendation was that a period of direct rule was needed to implement a series of urgent and radical reforms identified by Gary Hickinbottom’s damning report on corruption and ‘parlous failings in governance.’ As Hickinbottom wrote: ‘Such a suspension is not only warranted but essential, if the abuses which I have identified are to be tackled and brought to an end.’

The report’s publication was accelerated by several weeks after the dramatic arrest on 28 April of Andrew Fahie, the BVI’s premier, at Miami International Airport, together with the managing director of the BVI Port Authority, with all the classic movie trappings of a sting by the United States Drug Enforcement Agency.

Fahie’s arrest, unlike the decision on direct rule, was sensationally published across the British media. While the decision was formally made by the BVI’s Governor, John Rankin, this will have been in close consultation with Foreign Secretary Liz Truss and Amanda Milling, the minister responsible for Overseas Territories within the Foreign, Commonwealth & Development Office (FCDO).

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Northern Ireland: how can power-sharing be revived?

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Alan Whysall was a panellist in the session on Northern Ireland at the Unit’s State of the Constitution conference on 23 June. This revision of his talk draws on his paper for the Unit on Northern Ireland’s Political Future, and its accompanying blogpost. He argues that stable power-sharing can only return through good faith inclusive negotiation – which is not a part of London’s current approach – and a reinforcement of the foundations of the Belfast/Good Friday Agreement.

It is essential to bring all the Belfast/Good Friday Agreement institutions back as soon as possible: that unlocks the potential for political progress. Without the institutions, polarisation grows; the longer they are away, the harder ultimately the Agreement settlement is to sustain. And there is no alternative as a framework for the stable government of Northern Ireland.

Devolution still has wide popular support and the political class has a strong self-interest in restoring the institutions, if only because paying them not to undertake government is becoming unpopular. But there are big questions about how.

The government’s approach

Can the institutions be stably restored the government’s way? Setting aside for now judgements about the government’s approach, its integrity, or the extraordinary contents (breach of international obligations, vast delegation of powers to ministers) of the Northern Ireland Protocol Bill, this seems to me to be doubtful.

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The role of judges in judicial appointments in Ireland

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The Irish government has proposed a bill to reform the method by which the country appoints its judges. Patrick O’Brien discusses the proposals, and argues that several of the criticisms levelled against the bill lack force.

Judicial appointments in Ireland are shortly due to be put on a more formal footing. When the Irish Judicial Appointments Commission Bill 2022 is enacted, it will provide for an appointments commission designed in the image of many similar bodies that have been developed in common law jurisdictions in the last 30 years. The bill has, however, been the subject of recent criticism from the Chief Justice, Donal O’Donnell, who has questioned the composition of the proposed Commission.

Judicial appointments have been something of a saga in Irish politics in the last few years. The current system is widely regarded as inadequate and has been the subject of repeated proposals for reform in the past decade. An independent Judicial Appointments Advisory Board (JAAB), chaired by the Chief Justice, receives and comments on applications for judicial office from outside the judiciary but leaves appointments essentially to the political discretion of the government, which in theory (though all the evidence suggests, not in practice) leaves open the possibility of a more politicised judiciary. Promotions of existing judges are not considered by the JAAB at all. It is generally accepted, therefore, that appointments require reform. The current bill is the second to be put to the Oireachtas (Irish Parliament) since 2017. The 2017 bill was demanded as the price of entering coalition government by Shane Ross, a campaigning journalist and then an independent TD. This bill would have created a rather unwieldy body with 13 members and a lay majority and chair, as well as a number of sub-committees which would be called into being depending on the nature of the appointment. For a small jurisdiction which makes only a handful of judicial appointments each year, the system was significantly over-designed.

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