Tag Archives: Attorney General

Post-election negotiations in Northern Ireland must set the Belfast Agreement on a firmer footing and re-establish constructive politics

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Alan Whysall, Honorary Senior Research Associate of the Constitution Unit, looks at the Northern Ireland Assembly elections held last week. He suggests that the foundations of the Belfast/Good Friday Agreement continue to weaken, and there is no sign of the government offering any response that might strengthen them; its proposals on the Northern Ireland Protocol risk making matters worse. Alan’s discussion paper on Northern Ireland’s political future: challenges after the Assembly elections was published last Friday, and is summarised in this blog, and discussed in this podcast.

The election results, though well forecast by polling, were reported in dramatic terms by media outside Northern Ireland, with coverage focusing on Sinn Féin displacing the Democratic Unionist Party (DUP) as the largest party.

They reflect the increasing polarisation of Northern Ireland politics, fuelled by unionist concerns over the Northern Ireland Protocol. So Traditional Unionist Voice, to the right of the DUP, tripled its vote. The DUP lost approaching a quarter of its vote – but probably, with its line that only it could ensure there was a unionist First Minister, scooped up some support from the Ulster Unionists, who fared poorly. In the event, the DUP won 25 seats, more than many predicted.

But the line about First Ministers was heard even more on the other side, resulting in more nationalist votes going to Sinn Féin. That made it the largest party in the Assembly with 27 seats. The nationalist SDLP lost out grievously; with eight members, it is too small to gain a ministerial position.

The other notable phenomenon in the election, though, was the rise of the centre ground, those identifying as neither unionist nor nationalist – which means now, almost exclusively, the Alliance party. Alliance more than doubled its Assembly seats to 17. It is now the third largest party, instead of fifth. The binary assumptions of the Agreement, that politics is essentially about unionist and nationalist blocs, may be increasingly unsustainable.

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

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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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Brexit and parliament: where did it all go wrong?

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meg_russell_2000x2500.jpgParliamentary arguments over Brexit may now feel far behind us, but the bitterness of those arguments has left scars on our politics. Meg Russell examines four factors which contributed to the parliamentary ‘perfect storm’ over Brexit, concluding that ‘parliament’ largely got the blame for divisions inside the Conservative Party. This was fuelled by the referendum, minority government and the inability of parliamentary rules to accommodate a minority situation. The populist anti-parliamentary rhetoric which resulted was potentially damaging, with implications for the current Covid-19 crisis, when public trust in political decision-making is essential.

Amidst the current Covid-19 crisis, last year’s Brexit clashes already feel a long time ago. But at the time, they pushed Britain’s politics and constitution to their limits. Parliament was frequently at the heart of these conflicts – with angry headlines suggesting that parliamentarians were seeking to ‘block Brexit’, and branding them ‘wreckers’ or ‘saboteurs’. Twice questions of parliament’s proper role in relation to government ended up in the Supreme Court. Boris Johnson sought a lengthy prorogation of parliament, after which the Attorney General told MPs that they had ‘no moral right to sit’. How on earth did the UK, traditionally the most parliamentary of all democracies, get into such a mess? I dissect this question in a newly-published paper, ‘Brexit and Parliament: The Anatomy of a Perfect Storm’, in the journal Parliamentary Affairs. This post summarises the article’s key arguments. The full version is freely available to read online.

I suggest that four key political and constitutional features, all unusual in the UK context, contributed to this ‘perfect storm’. It was accompanied by a rise in populist and anti-parliamentary rhetoric – of a kind which would be destabilising and dangerous in any democracy, but particularly one based on a core principle of parliamentary sovereignty – as returned to at the end of this post. The four factors were as follows:

The referendum

As charted by the Independent Commission on Referendums, referendum use has grown in UK politics, but can sit awkwardly with traditional parliamentary sovereignty. Arguments for referendums on matters concerning EU powers were made over a long period (somewhat ironically) on the basis of protecting that very sovereignty. The 2016 EU referendum – eventually conceded by David Cameron, under pressure from Conservative Eurosceptics and UKIP – was very unusual, in two important ways. First, it was what the House of Commons Public Administration and Constitutional Affairs Committee (chaired by senior Brexit supporter Bernard Jenkin) criticised as a ‘bluff-call’ referendum: where the government’s purpose was not to seek approval for a change that it supported, but to shut down its opponents’ demands. Second, the referendum was held on a broad proposition (to leave the EU), rather than a detailed prospectus. Hence when the result came in, and was not the one the Prime Minister or most MPs (even on the Conservative benches at that time) wanted, parliament was left to decide how to put it into effect. Such circumstances generated clear tensions between parliamentary and popular sovereignty. Continue reading →

The invisibility of legal advice given to EU institutions

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Leino_Sandberg_P_ivi_2_photo_Linda_Tammisto.jpgWhenever a political institution seeks to rely on legal advice, there are often calls for that advice to be published, so it can be scrutinised. As has been discussed previously on the blog, there are pros and cons to placing material prepared in confidence into the public domain. Päivi Leino-Sandberg argues that in an EU context, such advice is often invisible, to the detriment of the decision-making process. 

Legal advice matters. It may not always decide the fate of nations, as Attorney General Geoffrey Cox’s advice on the Irish backstop may have done, but an astute follower of EU politics may recall times when proposals by the European Commission have hit a legal roadblock. A measure may have been found unconstitutional by the legal service of another EU Institution or a powerful Member State, bringing the political process to a halt. Typically, a flurry of fierce legal wrangling then ensues, during which the offending parts of the proposal are reviewed, removed or modified to reconcile divergent legal views. In most cases, the proposal will eventually re-emerge and is adopted in a revised form. Sometimes, it is quietly buried.

These are the battlegrounds of legal advisers working in the EU Institutions. Their opinions carry significant weight. The Commission Legal Service has enjoyed a de facto veto power over most Commission measures, even though this power has weakened during the Juncker Commission (2014-2019). The Council Legal Service is no less powerful. A Member State legal adviser explains how:

‘if you haven’t either managed to silence the Council Legal Service … or get them onside, forget about it. Because if they come out with something that’s contrary to where you are, they probably have a natural majority of fifteen Member States before you even start. And of the thirteen others, seven or eight will go with them anyway.’

But in spite of its importance, legal advice in the EU remains curiously invisible.

Two recent posts on this blog debated access to legal advice given to parliaments. In the first of these posts, Ben Yong, Greg Davies and Cristina Leston-Bandeira cautioned against publishing UK Parliament select committee legal advice. They concluded that publication of advice personalises and potentially politicises it, and threatens the relationship of trust and confidence between officials and parliamentarians. Publication might also create an exaggerated picture of the role of legal advice in political decision-making. In contrast, Gabrielle Appleby advocated for the publication of such advice to facilitate greater transparency about the influence of legal advice in parliamentary decision-making.

In the EU, legal advice given in the legislative context should, as a rule, be open to public scrutiny. However, it continues to be treated as confidential. I have been examining its use empirically in the Commission, the Council and the European Parliament. Each of these institutions has – in addition to legally trained officials in policy units – a dedicated Legal Service that plays a key role in its legislative work and defends it before the courts. It is these bodies that are tasked to assess the constitutionality of proposed action. They may advise against certain approaches and recommend in favour of others. Continue reading →