JUSTICE paper on ‘Devolution and Human Rights’

JUSTICE, the lawyers’ law reform and human rights group, has published a paper on Devolution and Human Rights, coming out of their work more generally on human rights, and particularly the idea – embraced by both the Conservative party and the Labour UK Government – of replacing or augmenting the Human Rights Act 1998 with a ‘British bill of rights’ (or ‘bill of British rights’, or similar formulation).  JUSTICE has long, and rightly, been concerned about the implications of this, as it would either mean the UK withdrawing from the European Convention on Human Rights (and the Council of Europe), or undertaking a long and complicated exercise to formulate a set of specifically UK-rights to augment those set out in the European Convention.  The paper is available here; JUSTICE’s press release is here, and a Guardian news story about it is here.

This latest paper draws attention to yet further problems with the ‘bill of British rights’ proposal.  One is the situation in Northern Ireland.  There are still-unimplemented commitments in the Good Friday Agreement to establish a specific human rights regime for Northern Ireland, recognising its distinctiveness – and presently the subject of a consultation by the Northern Ireland Office.  In any case, the idea of human rights being ‘British’ is deeply divisive there – especially given the success with which rights, and the rule of law, have been increasingly established as a norm of public life independent of sectarian association since 1998.

In Scotland, the problems are different.  Even though the Convention rights set out in the Human Rights Act 1998 are a reserved matter, other aspects of human rights are not – and the Convention itself is part of the Scotland Act 1998, and one which the present Scottish Government has no desire to change (see Kenny MacAskill’s comments to Westminster’s Joint Committee on Human Rights here).  Meanwhile, Wales has simply been left out of the debate (and the JUSTICE paper) – an error that appears to derive from Wales’s inclusion in the single legal jurisdiction of England and Wales, which disregards the constitutional prerogatives of the National Assembly.

The UK Government’s usual position is that the UK’s human rights regime is a reserved/ excepted/non-devolved matter, which is wholly subject to Westminster’s control.  It justifies this on grounds of the explicit protections for the Human Rights Act 1998 in the devolution statutes, or because of the reservation/exception for ‘the Constitution’ or for foreign affairs (as the ECHR is one of the UK’s international obligations).  That won’t wash.  Matters which touch on the powers and structures of the devolved legislatures clearly fall within the Sewel convention, as well as being entangled in the constitutional framework of devolution.  The belief that they can unilaterally be changed by the UK Parliament is a mistake, and no longer sustainable for a devolved UK.

The JUSTICE paper isn’t perfect, and there are a number of procedural infelicities in it.  But it’s absolutely right about the complexity of the constitutional implications of the UK’s implementation of the ECHR in domestic law, thanks to devolution.  And it follows that – if a UK Government were to seek to implement a new, home-grown bill of rights – that it would need to secure the assent of each devolved legislature to that, in accordance with the Sewel convention.  That includes the National Assembly for Wales as well as the Scottish Parliament and Northern Ireland Assembly.  Moreover, given the status of the Northern Ireland Act 1998 and its complex relationship with the Belfast Agreement, it implies the assent of the Republic of Ireland (if it can be done at all; one curiosity of the Belfast Agreement is that it is a ‘multi party agreement’ which does not identify all the parties to it).  Changing the UK’s human rights regime is a highly complicated undertaking, and politicians who imply that it can easily be done are heading for public embarrassment.

The 2010-11 Scottish budget passes

Budgets are the most difficult time for minority governments, as they can’t remain in office or manage the business of government if they fail.  Last year there was high drama about the 2009 Scottish budget, when the budget was voted down and there was a brief prospect of new elections until deals were agreed.  It’s therefore worth noting that the 2010 Scottish budget was quietly and effectively passed on Wednesday.  As well as the SNP, it was supported by the Conservatives, the Greens and Margo MacDonald.  The Lib Dems abstained.  Only Labour opposed it, on the grounds of the refusal of the SNP administration to reinstate the Glasgow Airport Rail Link (increasingly, a symbolic issue of the gap between the two parties).

There’s news coverage from the Scotsman here and here, from the Herald here and here, from BBC News here, and the Caledonian Mercury here.

When introducing the budget, John Swinney had made many kindly noises about how open the government was to negotiation, and willing to compromise.  It’s doubly telling that he cheerfully did deals with all the parties other than Labour.  The Tories got non-monetary concessions; much greater openness about public spending, and an independent body to review all items of public spending and recommend cuts (following an Irish precedent).  For the Lib Dems, there was an extra £20 million of funding for college places, and £10 million to support access to business finance through a Scottish Investment Bank.  For the Greens, there was £10 million for home insulation and £2 million for a boiler scrappage scheme.

It’s clear that John Swinney, and politicians in most of the other parties, understand that financially speaking times are about to get a lot tougher.  The question that will be interesting to watch is how that plays out politically.

Another Northern Ireland Agreement is reached

This morning brings news that the DUP has decided to accept the terms of the agreement reached at Hillsborough over the last 10 days of negotiations with Sinn Fein and the other parties.   BBC News’s report is here, and the Irish Times’s here.  The UK and Irish Prime Ministers are reportedly on their way to Belfast for a signing ceremony.

On BBC Radio 4’s Today programme, Shaun Woodward, UK Northern Ireland Secretary, was keen to emphasise that this was an agreement reached by the parties themselves – in contrast to the Belfast and St Andrews Agreements, which were intergovernmental agreements accepted by the parties.  In that sense, it’s a step forward to Northern Ireland being able to accept responsibility for its own politics.  But the other side is that this is a bilateral deal between DUP and Sinn Fein, and the other parties (certainly SDLP and UUP)  appear to be unaware of its contents.

No doubt the Northern Ireland Office will see the agreement as vindication of its strategy of forcing the extremes of Northern Ireland politics to come to an agreement, rather than leaving this to a supposed ‘moderate centre’ which can then be undermined by figures at the extremes.  It’s worth noting that the agreement has apparently been endorsed unanimously by the DUP’s 36 MLAs, and that on Thursday Sinn Fein announced that it had ended negotiations and believed that the basis for agreement had already been reached.  That indicates that the decisive act was within the DUP, rather than because of any further change of the deal so painstakingly negotiated.  The price of that, of course, may be further entrenching sectarian division within Northern Ireland’s politics and society.

It would be premature to celebrate the implications of this deal too much or too soon, but let’s assume for a moment for this enables devolution to be ‘completed’ with the transfer of justice and policing and parades, and that this agreement holds.  What then is the role of the Northern Ireland Office within UK Government?  It won’t have any programme responsibilities.  It will have only a fraction of the general co-ordination functions that the Scotland or Wales Offices have – they may remain at the political level, but not at the practical and administrative one, because Northern Ireland’s administration is so much more separate from UK departments than are devolved governments in Scotland or Wales.   The ongoing role of the UK Government in Northern Ireland will be limited and vestigial, and can’t justify the existence of a whole department of state, even a small one.

Where should that vestigial role be located?  Until 1972, Home Office had the responsibility for Northern Ireland, but that wouldn’t work now for many reasons, including the symbolism of that return to the past and the fact that the contemporary Home Office is a much narrower, implementation-oriented department focussed on policing and security.  Cabinet Office might be one option, the Ministry of Justice another, though there are problems with both.  To my mind, the success of devolution in Northern Ireland is a strong reason for UK Government to merge the three territorial departments into one, so it can focus on the major strategic issues that need attention and doesn’t waste resources or energy on maintaining an obsolete administrative structure for the sake of it.

(For an earlier discussion about the territorial Secretaries of State, see here.)

UPDATE: The full text of the agreement is now available here.  What’s striking reading it is its use of timetables for most key matters – parading as well as devolution and justice and policing.  For justice and policing, the key dates are a cross-community vote in the Assembly on 9 March and transfer of the relevant powers by 12 April.  For parading, there will be action in a working group appointed by the First and Deputy First Ministers during February, and transfer of functions and publication of a draft bill by late March or early April.  By mid-April, it will be crystal clear if the rapprochement that this agreement appears to herald is in fact working, or if something different is needed.

The National Assembly for Wales’s new Constitutional Affairs Committee

The role and remit of the National Assembly’s Subordinate Legislation Committee has been changing for some time.  It started as the reincarnation (in the 2007 Assembly) of the former Legislation Committee in the first two Assemblies.  That Committee had a narrow remit, being essentially concerned with whether Assembly legislation – by definition secondary legislation – was intra vires.  That meant checking it was within the scope of the legal powers conferred on the Assembly, and was properly made in procedural terms.

With the potential acquisition of primary legislative powers by the National Assembly after 2007, the role of the Committee changed.  This started with needing to ensure that Assembly Measures (as well as secondary legislation) was within its powers, but grew to include consideration of Legislative Competence Orders and instruments conferring powers on the National Assembly and the Welsh Assembly Government.  That role has come to play a greater part in its work – a fit subject for the involvement of elected politicians.  The change in name (and remit) to ‘Constitutional Affairs Committee’ recognises that change.  (The press notice announcing it is here.  The Committee’s webpage is here.)  The change is hardly overdue.

It’s interesting to watch the evolution of the National Assembly’s committees.  In 1999, these were purely concerned with the Assembly’s policy functions and paid much less attention to wider issues.  It’s almost as though the system were designed to prevent such consideration.  Now, the former Audit Committee has become a Public Accounts Committee, there’s a Constitutional Affairs Committee, and since 2007 there has been a Finance Committee as well.  The emergence of these committees, concerned with major cross-cutting issues rather than immediate policy matters, is an important part of the development of the National Assembly as a legislative body representing the concerns of the people of Wales.  It’s part of the story of Welsh devolution that should not be overlooked.

The English question seen from Westminster

The Institute for Public Policy Research published a short paper earlier this week reporting on a survey of MPs about the ‘English question’ after 10 years of devolution.  The paper, The English Question: The View from Westminster.  What do our MPs think of ‘The English Question 10 years after devolution? is available here.  The authors are Mike Kenny, also of Sheffield University, and Guy Lodge (formerly a colleague at the Constitution Unit), and an ‘analysis’  piece by them is here.  News coverage from the Daily Telegraph (concentrating on financial issues, but once again getting wrong what the Barnett formula actually does) is here.

The survey has some interesting findings.  It identifies a widespread consensus among MPs that there is a problem, and that the status quo is not acceptable.  There’s broad support for some mild symbolic measures to recognise England – St George’s day as a public holiday, a specifically English national anthem for sporting fixtures, and so on.  There’s also consensus about the ‘unfairness’ of financial arrangements, particularly but not only among Conservatives.  That in turn has excited a hostile response from the SNP, that ‘Tory MPs want to slash Scotland’s budget’ (the SNP’s press release is available here).  One might add that the SNP’s response suggests they haven’t read the report closely enough to note what it also says about fiscal autonomy.  It reports that Conservatives were more supportive of the idea of fiscal devolution than the other parties (even though a lot of backbench Tories find this idea goes against the bone, seeing it as a potentially-dangerous concession to ‘the nats’).

Beyond that, however, there is widespread disagreement about what the answer to the constitutional dimensions of the English question should be.  The split is overwhelmingly along party lines: Tories support ‘English votes for English laws’ solutions, while Labour and Lib Dem MPs generally support ‘localist’ or ‘regionalist’ solutions.  The Conservative MPs who responded were at best lukewarm about localism (despite their party’s official policy), and strongly opposed to ‘regional’ ones.  There was also a strong body of support for the view that the present funding arrangements were ‘unfair’, strongest among Conservative MPs but with considerable backing from Labour and Lib Dems too.

What’s really striking about these findings is the extent to which party affiliations appear to determine their views about constitutional approaches.  These are clearly tied to party self-interest.  They don’t appear to be rooted in any wider conception of what’s in the best interests of England, or the UK as a whole – just the best interest of their party.  This is highly dangerous.  Accepting that there’s a problem, but failing even to try to find a compromise solution to resolve it, is a route to disaster.  It means that a serious grievance goes unredressed – that the political process fails to find a solution to a difficult but important political problem.  Can anyone blame the public for being disaffected with politics if politicians’ pursuit of a narrow self-interest has such results?

There’s a second interesting finding in the report.  It asks if the respondents think that Scotland will become independent, and if so when.  58 per cent say ‘never’; 20 per cent ‘don’t know’, and 22 per cent say it, will in period between 5 and 50 years (mostly between 5 and 20 years’ time).  What’s striking about this is the extent to which it conflicts with the wide understanding of many involved in Scotland’s constitutional debates of where Scottish opinion is.  The fact that support for independence is relatively low, and consistently has been since 1999 (commanding the support of around a third of the Scottish electorate, or a bit less), is no reason for such complacency.  It’s clear from a wide range of quantitative evidence that Scots want clear, institutional recognition of Scotland’s distinctiveness within the Union.  That implies a form of extensive devolution – more than the present settlement allows.  This sort of view is based on the assumption that, if forced to choose, Scots will back a union that grants only limited recognition of that distinctiveness rather than independence.  Will they?  It’s far from certain.  And believing that this is how things appear to the people of Scotland runs contrary to the idea that the Union should reflect the wishes of the people of its various parts (as well as the unionist parties’ referendum-avoiding strategy).   This position looks like a heck of a gamble.

Barnett Formula: the Lords debate that didn’t happen

I returned to Parliament on Tuesday evening for the Lords debate on the Barnett Formula, triggered by the report the Barnett Formula Select Committee published last July (but not possible until the Government formally responds, which it took its time to do).  The debate had attracted a good deal of interest from peers: 20 had put their names down to speak, including many members of the committee and Lord Barnett himself.

Alas, they (and I) were to be disappointed.  As the previous debate – on the report stage of the Bribery bill – ran a long way over its time estimate, the debate was postponed indefinitely.  Goodness knows when it will now happen, but with Parliamentary time tight that may not be before the UK general election.

Evidence to the Welsh Affairs Committee

I gave oral evidence to the Commons Welsh Affairs Committee for their ‘Wales and Whitehall’ inquiry on Tuesday morning.  A video of my appearance should be available here, for those so inclined (I’m listed as ‘Constitution Unit, University College London’).  The transcript isn’t available yet, but should be shortly.  When it is, it will be here.  My written memorandum of evidence to the Committee is HERE.

It was quite a lively session, and I hope it was useful for members of the Committee – at least one of whom, it emerged, is a reader of this blog!

UPDATE:  There’s a report of the session on the BBC News website, available here.

More on the Conservatives and the Unionists in Northern Ireland: the importance of getting constitutional politics right

In an attempt to make sense of what has been going on Hillsborough Castle, I’ve been following Eamonn Mallie’s Twitter feed (available here) – the first time I’ve found a use for that particular medium.  But the most interesting thing Mallie has mentioned, but not covered by any other source that I’ve seen, is this tweet:

“It’s good to be among friends.” The words of Sylvia Hermon addressing an SDLP dinner in Bangor? I wonder what she meant ?

Hermon is, of course, the Ulster Unionists’ sole MP at Westminster, and deeply unhappy about the connection with the Conservatives and particularly the requirement that she take the Tory whip.

If a moderate, social-democratically-inclined, Unionist is finding herself more comfortable in the company of her moderate, social-democratic nationalist counterparts, that may say something

Lords debate on the Barnett Formula

The House of Lords will be debating the Barnett Formula, following the report of the Select Committee on the formula, on Tuesday next, 2 February.

Northern Ireland: the Conservatives and the Unionist parties

One issue that has emerged over the last few days has been the ‘Hatfield House summit’, and the attempt brokered by shadow Northern Ireland Secretary Owen Paterson and Lord Salisbury to secure an electoral pact between the Ulster Unionists and Democratic Unionists.  The consequences of this have attracted widespread criticism, whether from UK Labour government spokesmen, Guardian journalists like Nicholas Watt or Henry McDonald, or politicians like Sylvia Hermon MP (a Unionist but not a Tory) or prospective Conservative candidates Sheila Davidson and Peter McCann (Tories but not Unionists).  About its only defender appears to be Ben Brogan in the Telegraph, though his reasoning hardly strikes me as cogent.

Generally, I’ve been inclined to think that Conservative devolution policy in general is more consistent and thought-through than many do.  It seems to me to be based on the idea of a clearer division of functions between UK and devolved levels, an attempt to improve relations between them by greater ‘respect’, and a stronger assertion of the UK dimension as a result.  It’s therefore a strategy that recognises devolution as an important part of how the UK works, but puts it into a Unionist framework as well.  In many ways, it’s a classic Tory policy, borrowing elements of the approach used successfully by the Canadian Conservatives immediately after Stephen Harper became prime minister, as well as British Conservative thinking.

The Northern Ireland policy was always hard to reconcile with this.  One could argue (as a friend of mine has) that this in fact might help to normalise Northern Ireland’s politics.  It would