Human Rights Act: Some questions for Mr Grayling and Mrs May

Craig Prescott 10.51am

Over the weekend, Chris Grayling, the Justice Secretary and Lord Chancellor, indicated that a Conservative majority government could repeal the Human Rights Act. Meanwhile, Theresa May, the Home Secretary, has suggested withdrawing from the European Convention on Human Rights (ECHR) itself.

These are two very different things, and there is some muddled thinking involved here; but if both were to be pursued the policy could be called ‘Withdrawal and Repeal’.

As Mr Grayling has admitted himself, there needs to be a lot of work put in to the detail (to put it mildly). But as work towards possible 2015 manifesto pledges starts, here are some questions and issues that need to be considered.

  1. Why? It can’t be for political advantage. At the last election, 3.1 per cent of people voted for a political party who advocated ‘Withdraw and Repeal’, namely UKIP. By contrast, a combined 52 per cent of the electorate voted for Labour and the Liberal Democrats, who did not. Whatever Mr Grayling and Mrs May may think, the electorate has shown time and time again disinterest in tinkering with constitutional matters. This does not look like a massive vote winner to me, in face of more pressing matters such as living standards and the broader economy.
  2. Replacement? A British Bill of Rights has been suggested, but to what end? The content of such a Bill of Rights is likely to be similar, if not identical, to the content with one or two additions (such as a right to a jury trial) to make such a document ‘British’. Take a look at the Articles incorporated into English Law by the HRA, the Right to Life, Prohibition of Torture, Prohibition of Slavery and Forced Labour and the Right to a Fair Trial and so on. Would you like to live in a country that does not provide in law for these  protections? As one of the finest judges of recent times, Lord Bingham stated in his book the Rule of Law, countries that do not make such protection in law tend not to the best of places to live. Belarus or North Korea? Another issue is how are the courts going to interpret any such legislation. Experience before the HRA suggests that on the whole, the courts will take notice of the ECHR, as they do of other international treaties and case-law for interpretative guidance.
  3. Leave it to Parliament? If ‘Withdrawal and Repeal’ is pursued, then the position will be more akin to the days before the HRA, but without a route of appeal to Strasbourg. This is a dangerous option, as it risks pitting the courts and Parliament in direct opposition. It is easy to think that human rights began with the HRA, but that neglects the strong - if imperfect - vein in the common law that protected people’s rights before the HRA. One could go back to the 17th century, but during the 1990s the courts began to recognise at common law certain rights as being of ‘fundamental’ status, such as access to justice. This fundamental status means that the courts require strong signals from Parliament before the courts hold that they can be interfered with. This is an open-ended category of right, creating a clear risk of an ongoing conflict between the courts and Parliament, potentially giving more scope to the courts, the exact opposite of what the Lord Chancellor, Mr Grayling, wants. Such an approach would be destined not to end well.

There are other issues to consider. The devolved institutions are required under the devolution framework to comply with the ECHR at all times. Any amendment of this requirement is likely to require their approval, which the Commission on the Bill of Rights indicates will not necessarily be forthcoming as approval of the ECHR is generally seems to be higher outside of England than within it. (This raises concerns that the Conservative Party becoming ever more an English, and not British Party). Further, the EU is engaged in an ongoing process to become a signatory to the ECHR, meaning that even if ‘Withdraw and Repeal’ is pursued, the ECHR will still be a highly relevant to UK law as long as Britain remains a member.

All of the above is not to say that the human rights architecture of the UK and Europe is perfect. Far from it. There are issues over the length of time it takes to hear cases, and the number of appeals possible in human rights litigation are both issues about which courts themselves have voiced concerns. A close look at the process shows that the vast majority of the time, it is these problems which lie at the root of problems with human rights. After all Abu Hamza still got deported to America. Is it really necessary to embark on such a hazardous journey, jeopardising a central tenet of the unwritten constitution that Parliament and the courts respond to each other in a dialogue and understanding, to solve a problem which for the vast majority of the electorate is simply not there?

Ultimately, the problem that Mr Grayling as Lord Chancellor (who has a duty to uphold the rule of law) needs to grapple with is that some human rights are innate in the liberal democracy to which he wishes to belong and to strengthen. Any human rights apparatus constructed does not create rights but merely recognises them.

Craig Prescott is a member of the School of Law at the University of Manchester. Follow him on Twitter @craigprescott

English wine is leading the way in more ways than one

Nik Darlington 11.53am

The Greek philosopher Diogenes once said, “what I like to drink most is wine that belongs to others”.

That was, in a sense, what we inhabitants of the British Isles were forced to do for hundreds of years.

Whatever might be said about the Romans and their vines along Hadrian’s Wall, for most of history if you wanted to drink wine on these shores then you had to import it and you had to pay a pretty price for it.

Things have changed. The English (and Welsh) domestic wine industry is in very good and ever-improving health, thanks to increasing interest, investment and climate change (yes, it has its silver lining). There are more than four hundred vineyards turning out red, white and sparkling wines, which though admittedly of varying quality, have in recent years hit dizzy heights.

And yesterday the Times (£) reported on what is expected to be a ‘vintage year’ for English wine, with the Diamond Jubilee and the London Olympics earmarked as opportunities to showcase the nation’s best. Indeed, the Olympics cycling road race is due to pass close to England’s largest single vineyard, Denbies, in the Surrey Hills.

But there was another wine-related story in yesterday’s Times (£) that is worth dwelling on.

The EU has plans to abolish vine plantation regulations, which stipulate where and how much wine can be cultivated throughout Europe, so as to limit production, control quality, and maintain prices. However, a number of leading wine-producers, including France, are opposed to any relaxation of the regulations.

Supporters of the reform say it will make Europe’s wine industry more competitive and better able to meet the challenge from New World producers. They accuse France, Spain and Italy and other wine nations of trying to preserve their dominance by preventing the spread of vineyards to other regions and countries.

In 2007, the EU voted to scrap vine plantation rights, which allowed new vineyards and the extension of existing ones. Although the French Government initially backed the reforms, it has since backtracked, in the face of rural fury. President Sarkozy has vowed to fight the move.

Dominique Janin, deputy general secretary of the Assembly of European Wine Growing Regions, told The Times that liberalisation would leave vineyards at the mercy of “hedge funds and multinationals”.

"They are going to plant hundreds or thousands of hectares of vines and we will move towards industrial production," said Mr Janin. "The consequences will be quite serious. Europe will become like Australia. When you have a plant that lasts 70 years you need rules and harmonious management."

First of all, it is a bit of a harsh judgement on the New World producers such as Australia. That country’s recent problems, for instance, have more to do with natural disaster (drought) than industrial production. And while the New World produces some frightful cheap plonk, many of its vineyards are have been matching the old masters of Europe for some years now.

But the main point is that the likes of the French are both right and wrong. They are wrong because one of the reasons why the New World is fast catching up with the old is because its vineyards are freer to experiment with grape varieties and production methods, and to expand into new and exciting terroirs.

They are, however, right in that irrespective of how much the New World ‘catches up’ (relatively or absolutely), the unique selling point of the Old World is its history, traditions and styles. They must be protected.

The proper solution would be for the EU to forge ahead with abolishing continental regulations, so allowing certain producers to follow their own path, but to allow individual member states to maintain domestic controls. This type of flexible thinking should not run contrary to any EU anti-competition laws, because the English wine industry is already outside the existing controls.

English winemakers are proving adept at applying the best of the old - such as the classic methods of Champagne to produce top drawer sparkling wine - and at the same time pushing the boundaries, even beginning production of 'English Malbec' from imported Argentine grapes (which the EU is absurdly prohibiting).

Much as it is doing so in the glass, English wine could be ahead of the pack in other ways too. Europe, take note.

Follow Nik on Twitter @NikDarlington

One Nation, One Great British Football Team?

Nik Darlington 6.00am

Since the SNP secured an unprecedented majority at Holyrood, commentators have been wondering what it could mean for the Union. In the aftermath, the Sunday Times (£) reported that the Tories want a snap poll, pointing to the fact that only one-in-three Scots would vote for independence. The Sunday Telegraph reported that Alex Salmond has threatened David Cameron with “guerilla war” and a long independence campaign.

Some words just belong together. Strawberries and cream. Dashing and gentleman. Political and scandal. Sunderland and Labour hold.

Or “canny” and “Alex Salmond”. If I had a (British) pound for every time that I read in the newspapers, see on the telly or hear on the wireless the words “canny” and “Alex Salmond” together then I would be, well, I’d be on a beach somewhere instead of writing this on a Sunday evening.

But it is true. Alex Salmond is canny, or else he would not so brilliantly have turned around an apparently unassailable Labour lead, nor won a majority in a parliament that was designed so that no party could win a majority. Therefore he also knows to resist any notion of an early referendum, which he would lose (interestingly, it isn’t in his power to call one, that belongs to Westminster). He hopes that by playing the long game, he can snipe from his perch in Charlotte Square at decisions made south in Downing Street. Some commentators therefore are putting a big red circle around 24th June 2014. The 700th anniversary of the Battle of Bannockburn (another two words: wicked and irony?).

This weekend, I’ve had a different date in mind. 11th August 2012. The final of the Olympics football tournament at Wembley. Why? Because on Friday, the Times (£) told me that the Football Associations of Scotland, Wales and Northern Ireland have conceded they can’t stop any players from signing up to a combined British team.

There used to be a time when any British football side would have been ten Englishmen plus Ryan Giggs a Welsh winger. Not only did England have a perennial left-side problem (Sinclair, McManaman, Barmby, or Murphy anyone?) but the Celtic nations had a perennial footballing problem.

Times are different now. Northern Ireland have climbed astonishingly quickly from a lowly FIFA ranking of 124th in March 2004 to 65th today (via a high of 32nd in 2007). Scotland’s ranking is steady, one place behind in 66th. At 114th, below Haiti and the Central African Republic, Wales’ ranking is appalling but they have some of the best young talent. As the Olympics is effectively a youth tournament, this matters, and don’t forget that England will likely just have competed in Euro 2012, making their top players unavailable.

Despite admitting they can’t stop them, the Scots, Welsh and Northern Irish pen-pushers maintain that they don’t want their players participating. Only a few players have indicated they want to, such as Welsh winger Gareth Bale. But imagine it happening; imagine seeing Great Britain in the Olympics football final, an aged and inspirational David Beckham in union with Aaron Ramsey, Barry Bannan and Ryan McGivern. You remember what Euro ‘96 did for English football? Apart from the inane fluttery car flags, it gave the country pride. Alastair Campbell’s diaries talk about how Labour feared that John Major would call a snap election. And win.

Personally, I vote for One Nation, One Team.

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For what it is worth, here are my tips for a Great Britain XI (with a little help from my more clued-up friends). It largely ignores English players likely to be involved in Euro 2012 (e.g. Theo Walcott, Andy Caroll) but includes Joe Hart because you need a quality goalkeeper and, frankly, they can’t get that tired, can they? *Asterisks mean over-23.

4-5-1: Joe Hart* (Eng); Kyle Walker (Eng), Jonny Evans* (NI), Danny Wilson (Sco), Kieran Gibbs (Eng); David Beckham* (Eng, capt.), Aaron Ramsey (Wal), Jordan Henderson (Eng), Barry Bannan (Sco), Gareth Bale (Wal); Daniel Sturridge (Eng).

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Govern for One Nation? On the back of these results, impossible.

Nik Darlington 8.55am

When the Conservatives won the 1874 general election, the new Prime Minister, Benjamin Disraeli, could count on a nationwide mandate with Tory MPs returned from Antrim to Ashton-under-Lyne, Berkshire to Birkenhead, Inverness to the Isle of Wight. He represented One Nation (the United Kingdom) and governed for One Nation (the rich and the poor). In 1879, Liberal-Labour MP Alexander Macdonald famously declared, “the Conservative party have done more for the working classes in five years than the Liberals have in fifty.”

Forget any notions of One Nation today. The local election results suggest that we live in a UK of Five Nations (make that six with London, not taking part in this year’s voting).

Scotland, clearly is one. Alex Salmond, poised to become First Minister at Holyrood for another five years, has hailed a “historic” night for his SNP. His Labour opponent, the anonymous Iain Gray, summed up his party’s night in clinging on by 151 votes in East Lothian. Labour have clung on in parts of Scotland, and made sporadic gains, but their traditionally strong vote has collapsed. Arrogance, complacency and a terrible campaign have contributed and Labour MSPs (what’s left of them) have to ask why the decimation of the Liberals in Scotland has profited the SNP, not them. They could make a start by acknowledging that Holyrood is now seen as a national parliament, very separate to Westminster. Incidentally, the SNP mandate is not a threat to the Union. Bring on the referendum, I say, because Scots will reject it. The SNP is no longer seriously seen as a referendum party. Even the party itself eschews talk of it at election time.

Wales has also fashioned a political climate of its own. After yesterday’s voting, Labour can still lay claim to the principality as a party fiefdom - but only just. As is being reported, their Senedd majority is "on a knife edge". Like elsewhere, the Liberals have suffered the most. The Tories have held reasonably firm, consolidating the party’s recent good work in Wales, though leader Nick Bourne lost his Mid & West Wales regional seat. (Congratulations to Owen Meredith, who increased the Tory vote in Caerphilly.) Inverse to Scotland, the nationalists, Plaid Cymru, have lost ground. Overall, Wales is still a bit of an electoral melting pot but an increasingly unique one.

The North of England has turned out in force for the Labour party. The big urban centres of Hull, Sheffield and Stoke now have Labour city councils - all at the expense of the Liberals (see the pattern emerging?). The Tory northern offensive that we saw in last year’s general election was never going to repeat itself. Labour’s northern heartlands are secure and, on the basis of results elsewhere in the UK, its only heartlands.

The South of England (excepting London) remains firmly blue. The Tories have even made gains, at the expense of both Labour and the Liberals, taking overall control of Gloucester City Council and increasing their hold in Worcester. The south has also held firm for the coalition, with the Liberal core vote just about standing up in the likes of Clifton East (though Bristol’s council is now NOC) and Claines in Worcester (though only 13 votes ahead of the Tories).

Northern Ireland has not begun announcing its results but its particular political situation - with an entire array of separate parties - is self-evident.

In summary:

  • This has been a brilliant night for the SNP. Alex Salmond’s party is the biggest winner of all, vindicating an astute campaign.
  • The Conservatives also have much to celebrate. Their vote has been resilient in Wales and relatively triumphant in (southern) England, gaining dozens of councillors and one city council. Factor in a likely ‘No’ victory in the AV referendum and things look even better for David Cameron.
  • Ed Miliband will justifiably laud the Labour party’s massive council gains but conveniently ignore that, unlike Tony Blair in the mid-1990s, they have made no inroads in southern England, have stuttered in Wales and been humiliated in Scotland. Furthermore, almost all the Liberal collapse can be attributed to Labour gains in the north of England, making a mockery of any ‘progressive anti-Tory majority’. Miliband’s party also tipped the balance against him and the ‘Yes’ camp in the AV referendum.
  • The Liberals have suffered the drubbing everyone knew they would. Their solid local platform, so assiduously courted over the past two decades, has disappeared overnight. The only shred of consolation is that coalition solidarity seems to have protected them in the south of England - though how much of a consolation does that feel for recalcitrant Liberal rebels like Tim Farron and Chris Huhne? In thinking about where to turn, the Liberal Democrat party must recognise, as Danny Finkelstein wrote on Wednesday in the Times (£), that “choosing is not something they will be in a position to do at all”. The expected loss of electoral reform will hurt but unless lemming-like they suffer a collective suicidal urge, Liberal MPs are bound into the coalition like never before.

The post mortems will carry on over the weekend and we still have the results of the referendum to come. What is clear for the time being is that the United Kingdom has taken another decisive, fracturing step - if not towards breakup (bring on a Scottish referendum, I say, the SNP will lose it) then towards tribal disunity along political and national lines.

It is folly to draw many national conclusions from local elections but we may have reached a tipping point - can a single party ever reach out to every corner of the UK again? On the day that we look set (on balance, rightly) to reject electoral reform, it is a poignant thought.

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Does Wales need more powers? Are Welsh voters really interested?

Owen Meredith 7.55am

Owen was selected to fight the Caerphilly constituency for the Welsh Conservatives in the Welsh Assembly elections on 5th May 2011.

Tomorrow, Wales goes to the polls for the first of two referendum votes in the space of just nine weeks.

The question being put on 3rd March is: Do you want the Assembly now to be able to make laws on all matters in the 20 subject areas it has powers for?

But what exactly is being voted on and what does it mean for the people of Wales?

Here is a rough guide of what happens now (do bare with me). The Welsh Assembly currently has powers in twenty policy fields*, but it only has ‘legislative competence’ on some matters (these are the sub-sections of policy fields). In other matters, when the Welsh Assembly wants to pass a new law, first it must ask permission from Westminster, which can then grant a legislative competence order (LCO) to permit enactment of said Welsh laws.

So this referendum is about whether the Welsh Assembly should have the power to create primary legislation in those 20 areas without first asking the permission of Westminster. In effect, this is speeding up a process that would happen over time through the LCOs.

The ‘Yes’ camp say that this is simply a tidying up exercise to sort out an anomaly of devolution. Conversely, the ‘No’ camp argues that the Welsh Assembly has failed to do anything genuinely positive for Wales in the last twelve years with the powers it possesses, so it should not be trusted with more.

In what has been a lacklustre campaign, much of the focus has been on how the Welsh Assembly has performed. After twelve yeas of devolution, health care and schools in Wales are performing worse and the economy lags behind the rest of the UK.

The ‘Yes’ campaign says these are matters to be addressed on 5th May, not this Thursday; yet Yes for Wales mendaciously is putting public spending cuts at the heart of its campaign. They argue that a ‘Yes’ vote will protect Wales from the expenditure reductions that are a result of the UK Government’s determination to get to grips with the nation’s finances.

This is nothing short of political opportunism. Wales receives a block grant from Westminster. It has no tax raising powers. Regardless of the referendum result, the Welsh Assembly’s budget will remain the same. Yet the ‘Yes’ campaign continues to argue that “it’s good to know that our Assembly is protecting services for the most vulnerable”, while failing to mention the £1 billion cut in health spending forced through by the Labour-led Welsh Assembly.

The whole referendum campaign is hardly exciting people. The feeling on the ground is that people either aren’t aware or don’t care (see this BBC News video). There is a real danger that a lack of information, the current system’s complexity, and the referendum’s proximity to the Welsh regional elections will dampen voter turnout. Commentators are predicting this to be as low as 30 per cent. I fear this could be true. If Wales votes ‘Yes’ without enthusiasm, the devolution project might be on the road to ruin.

The 1997 referendum turnout was 50 per cent, with the ‘Yes’ vote winning by the closest of margins: 50.3% to 49.7%. Another knife edge verdict could put Wales on the verge of a devolution crisis.

*The 20 policy fields: Agriculture, fisheries, forestry & rural development, ancient monuments & historic buildings, culture, economic development, education & training, environment, fire & rescue services & promotion of fire safety, food, health & health services, highways & transport, housing, local government, National Assembly for Wales, public administration, social welfare, sport & recreation, tourism, town & country planning, water & flood defence, Welsh language.


NB: There are no official campaigns for either the ‘Yes’ or the ‘No’ campaigns but two groups have come out leading the respective arguments: Yes for Wales and True Wales. The Welsh Conservatives have taken a neutral position ahead of the referendum, allowing members and elected representatives to campaign for either side in a personal capacity.

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