The Belfast/Good Friday agreement’s three strands have not outlived their usefulness

Voters in Northern Ireland go to the polls tomorrow to elect a new Assembly. In the weeks which follow, attention is likely to be focused on reviving the Stormont institutions following the recent instability surrounding the Protocol and the resignation of the First Minister. However, the other institutions of the Belfast/Good Friday Agreement, designed to manage the British–Irish and North–South relationships, are underused and underdeveloped. Conor J Kelly and Etain Tannam argue below for the robust use of these strands of the Agreement to provide more constructive forms of political engagement.

The recent collapse of the Northern Ireland Executive and divisions over the Protocol have led to fresh questions about whether the Belfast/Good Friday Agreement has outlived its usefulness. This blog does not aim to defend or criticise the Protocol, but instead shows the continued importance of the 1998 Agreement for a divided society in the Brexit context. In particular, we highlight the continued relevance of the Agreement’s ‘three strands’ for democratic governance in light of the Protocol. Amidst deep concerns over whether it will be possible to form a new Executive after the elections to the Northern Ireland Assembly taking place this Thursday, the importance of these core features of the Agreement needs renewed emphasis.

Although the 1998 Agreement has been a great achievement in bringing about peace, it has been less successful in bringing about stable government. In addition, it has always faced challenges from some unionist critics and those most opposed to the Protocol are also opposed to the Agreement. The recent stand-off between the UK government and European Union on the Protocol has made those critics all the louder. Yet, many of the faults with politics since 1998 lie not in the Agreement itself, but in the failure to implement it robustly.

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The Platinum Jubilee and future of the monarchy

Queen Elizabeth II this year celebrates her Platinum Jubilee, commemorating 70 years as monarch. UCL recently hosted an event to discuss why we have jubilees, what they say about monarchies, what the process of starting the next reign will look like, the future of the monarchy at home and abroad, and what lessons can be learned from other European monarchies. A summary of the discussion is below.

On Thursday 17 March 2022, UCL hosted a webinar entitled The Platinum Jubilee and the Future of the Monarchy, chaired by Professor Robert Hazell, founder of the Constitution Unit. Robert was joined by four panellists: Dr Bob Morris, an Honorary Senior Research Associate at the Unit, Dr Craig Prescott, Lecturer in Law at Bangor University, Dr Carolyn Harris, a royal historian at the University of Toronto, and Professor Helle Krunke, Head of the Centre for European and Comparative Legal Studies at the University of Copenhagen. The webinar looked to the future in two respects; starting with the Accession of the new King after the Queen dies, and then looking further ahead to address the practicalities of the Prince of Wales’ vision for a smaller Royal Family, the impact of the accession on the Commonwealth Realms, and the continuation of the monarchy itself. This post is a summary of some of the key points made during the session.

Demise of the Crown

On Demise – the legal term for the transfer of the Crown upon the death of the monarch – the Accession Council – a ceremonial body formed following the death of one monarch to proclaim the new one – recognises the seamless transfer of executive power from one monarch to the next; and the coronation celebrates and legitimises the accession of the new monarch. Bob Morris suggested the process is likely to be much the same as it was when the Queen acceded in 1952: the Privy Counsellors will meet at an Accession Council along with the High Commissioners of the Commonwealth Realms, the Lord Mayor of London, and the Court of Aldermen, to make a proclamation declaring Prince Charles, the Prince of Wales, to be King and to receive his oath. The new King will address the nation on the day after Demise, and visit Cardiff, Edinburgh, and Belfast in the days following to present a united vision for his Kingdom. The funeral for the Queen will be held at Westminster Abbey (the first since 1760), before an interment in St Georges’ Chapel, Windsor. Questions remain as to whether any part of the Accession Council will be televised, whether the oath will change, and how over 700 Privy Counsellors will be enabled to attend and sign the Proclamation.

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The Constitutional Reform Act 2005 led to greater judicial independence: politicians and parliament must continue to support it

As part of an ongoing inquiry, the Lords Constitution Committee has sought evidence as to whether ‘the amendment of the role of the Lord Chancellor by the Constitutional Reform Act 2005 (CRA), and the resulting separation of powers between the judiciary and the Government, [have] been successful’. Robert Hazell argues that the 2005 reforms led to greater judicial independence, a political achievement that requires continuing support from politicians and parliament.

The House of Lords Constitution Committee is currently undertaking an inquiry into the role of the Lord Chancellor and the Law Officers, in which it seeks to answer a number of questions, including whether ‘the amendment of the role of the Lord Chancellor by the Constitutional Reform Act 2005 (CRA), and the resulting separation of powers between the judiciary and the Government, [have] been successful’. Through written evidence, submitted with Professor Kate Malleson, I have attempted to answer that question. Our answers were based upon the main findings and conclusions of a three-year research project on the Politics of Judicial Independence, funded by the AHRC. The research explored the impact of the greater separation of powers introduced by the Constitutional Reform Act 2005 (CRA). Our principal conclusion – as explained in our 2015 book on the subject – was that judicial independence and judicial accountability have emerged stronger, not weaker; but that greater separation of powers requires increased engagement by the judiciary with other branches of government.

The changes made by the Constitutional Reform Act 2005

Until 2005 the head of the judiciary was a Cabinet minister, the Lord Chancellor. In an extraordinary breach of separation of powers, he could also sit as a judge in the UK’s highest court. The CRA removed the Lord Chancellor as head of the judiciary, handing that responsibility to the Lord Chief Justice in line with an agreement struck in the Concordat of 2004. The division of powers between the executive and judiciary was further refined in 2008 in a Framework Document for the management of the Courts Service (revised and updated in 2011 to incorporate the Tribunals Service). The CRA also created a new Supreme Court, and established the Judicial Appointments Commission.

The new politics of judicial independence are more formal, fragmented, and politicised

The old politics were informal, depending on regular meetings between the Lord Chancellor and senior judges; closed, in that these were virtually the only contacts between the judiciary and the government; and secretive, with both sides preserving each other’s confidences. They were also consensual and conservative, in that neither side wanted to change the system. The ‘new’ politics, by contrast, are much more formal. The CRA required more formal structures and processes to handle the relationships between more separate branches of government. We now have the Judicial Appointments Commission, Judicial Appointments and Conduct Ombudsman, and Judicial Conduct Investigations Office: all products of the CRA. The new formal processes include regular meetings between the judiciary and other branches of government, with the innovation of six-monthly meetings between the LCJ and Prime Minister, the introduction of regular meetings with senior officials in parliament, and annual appearances by the LCJ and President of the Supreme Court before the Constitution Committee.

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Partygate illustrates the fundamental constitutional responsibility of government MPs

Boris Johnson and his Chancellor have now been fined for breaking lockdown restrictions. Both have misled parliament over Downing Street parties. These are clear breaches of the Ministerial Code, which should lead to resignation. If the PM refuses to police the Code, says Meg Russell, that constitutional responsibility rests with MPs. A failure to exercise it would seriously undermine both the integrity of, and public trust in, the democratic system.

The Prime Minister and Chancellor of the Exchequer have been issued fixed penalty notices for breaching COVID-19 lockdown rules over parties in Downing Street. This means that they have broken the Ministerial Code on two counts. Paragraph 1.3 emphasises ‘the overarching duty on Ministers to comply with the law and to protect the integrity of public life’. But the police have concluded that the law has been broken. Paragraph 1.3c of the Code then states that:

It is of paramount importance that Ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity. Ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister.

But it has been clear for some time that Johnson breached this rule, by repeatedly insisting in the House of Commons that all regulations were followed, and denying knowledge of Downing Street parties, when it subsequently emerged that he had attended such gatherings. Multiple sources have catalogued these denials. Rishi Sunak also said on the parliamentary record that he ‘did not attend any parties’.

But the final line of paragraph 1.3c is the rub. While both of these forms of breach would normally be considered resigning matters, the ultimate keeper of the Code is the Prime Minister himself. He has already faced down criticism over failing to uphold it in the case of bullying allegations against Home Secretary Priti Patel, which led to the resignation of the Independent Adviser on Ministers’ Interests. Both Johnson and Sunak have insisted that they are not going to resign, indicating that the Prime Minister is once again setting aside the Code – this time over multiple breaches, which are highly publicly salient.

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What happened to the Constitution, Democracy and Rights Commission?

The 2019 Conservative Party manifesto promised to appoint a Constitution, Democracy and Rights Commission to conduct a wide-ranging constitutional review. In practice, this promise has not been delivered. Tom Fleming and Petra Schleiter discuss this by summarising their recent article about the Commission, Radical departure or opportunity not taken? The Johnson government’s Constitution, Democracy and Rights Commission, as published in ‘British Politics’.

What did the government promise?

At the 2019 general election, the Conservative Party’s manifesto promised to appoint a ‘Constitution, Democracy and Rights Commission’. This body would be tasked with reviewing various aspects of the constitution and producing proposals ‘to restore trust in our institutions and in how our democracy operates’.

The Commission’s proposed remit was very broad, encompassing many of the central elements of the UK’s constitution. It would be asked to examine: ‘the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people’, as well as the Human Rights Act, administrative law, and judicial review. However, the manifesto was decidedly vague about how the Commission would be organised. There was no information about its proposed membership, format, or timeline, beyond a commitment that it would be established within a year of the election.

The manifesto’s language suggested that this proposal stemmed in part from the government’s experience of the Brexit process. This was most obvious from the manifesto’s controversial description of ‘the way so many MPs have devoted themselves to thwarting the democratic decision of the British people in the 2016 referendum’ creating ‘a destabilising and potentially extremely damaging rift between politicians and people’. This led some observers to warn against the dangers of the Commission ‘fighting the last war’ rather than crafting durable constitutional reforms.

Whatever its motivation, the proposed Commission had the potential to be a radical departure from previous investigations of constitutional reform in the UK. In particular, it held out the prospect of a joined-up review of multiple interconnected constitutional issues. Such joined-up thinking is vital for ensuring a coherent reform agenda, but has been conspicuous by its absence in recent decades.

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