Friday, 22 May 2015

Marriage equity in Ireland: Referendum Day

Today Ireland votes in a referendum that’s the world’s first, on same sex marriage. It’s a shockingly quick liberalisation for a country that only decriminalised homosexuality in 1993, but the last 20 years has seen scandal after scandal in the Catholic Church, which has fallen from its once unassailable position of moral authority to an institution too damaged to campaign prominently against equal marriage.

The referendum is being held because Ireland’s constitution charges the state with protecting the institution of marriage. Opinion is divided on whether the referendum is legally required to permit equal marriage as the constitution doesn’t define marriage as being between a man and a woman, but merely that it is defended as an institution. In the end the government erred on the side of caution and called a referendum to ensure that a move to equal marriage wouldn’t be struck down by the courts.

The Catholic Church still opposes the change and is preaching its message in churches across the country, but its conservative Catholic civil society groups that have led the opposition in practice. The argument against centres around children, with the No campaign arguing that children need a mother and a father. However, same sex couples in civil partnerships (brought in in 2010/2011) already have the right to adopt and raise children so the Yes campaign has tried – unsuccessfully – to shut this down as an argument. As many have pointed out, the No campaign’s stance on marriage being for reproduction and its insistence on the ideal family is potentially alienating for people who aren’t LGBT but who nevertheless don’t fit into the ideal.

Currently the Yes side is polling very strongly, with the No campaign only making a slight inroads over the last month. But it’s turnout that is likely to be key. It’s widely accepted that No voters are more motivated to come out and vote, whereas the mass of Yes voters may feel that their side is assured a victory and therefore it’s not quite as important to vote (and many of them may not have a lot personally riding on the result). There are also worries that there may be a “shy Tory” effect after the British elections – if people were too reticent to admit to voting Conservative in Britain, then there may be many in Ireland that have misgivings about voting Yes, but are too embarrassed to admit that they plan to vote No.

Whichever way the vote goes, the referendum is a milestone event in the birth of liberal Ireland, but marriage equality would not only be a powerful statement of the strength of modern Ireland – more importantly it will bring greater equality to the LGBT community and, after a long period of persecution, allow them to build loving families in Irish society.

Thursday, 21 May 2015

Boat Bombing: the "Humanitarian" Mission Impossible?

EU Member States have agreed on a naval mission to target the networks of people smugglers in the Mediterranean - a victory for the EU High Representative (Mogherini), who notes that the decision was made in record time. The mission will be run out of Rome by an Italian admiral and will include intelligence gathering on the smugglers' networks, "detection and inspection" of smugglers boats and, if granted UN authority, the destruction of the boats.
It may be a great victory for Federica Mogherini to have steered this decision through so quickly, but it sounds like a humanitarian policy by way of Michael Bay: lots of warships and action, but hardly much depth. What drives people to make this desperate crossing goes beyond smugglers' networks. These refugees hand over their savings to the smugglers because so much of Africa and the Middle East is in chaos, meaning that smugglers can afford to lose the dingy boats they send them off on in the first place. Neither government in Libya seems to be enthusiastic about the EU plan, and the BBC reports that local communities and the Libyan coastguard may be involved in these networks - how will this essentially military mission deal with situations where the networks aren't staffed by bad guys drawn from Hollywood blockbusters?
The smuggling is a key part of the current problem, but its only part of it. With the EU's near abroad in flames, does it have a strategy to deal with the breakdown of states in its neighbourhood?
It's a bit much to expect a new Neighbourhood Policy over-night to deal with these crises, but there doesn't seem to be much indication of trying to muster political will for such ideas, never mind much planning. The current Neighbourhood Policy, with its Union for the Mediterranean and Eastern Partnership, looks like it was created for a bygone age with Libya and Syria in flames and a proxy war in Ukraine.
Now that the Commission's asylum quota appears to have lost any traction it might have had, this naval mission could be the only common policy on this crisis. This is a real danger because it doesn't actually help solve the problem; at best, it just manages the symptoms. It's not hard to imagine that over time countries will slowly withdraw their support for the mission as a drain on resources, and the whole mess will re-assert itself. We should not be satisfied with mission, but start working on the difficult and long term issue of helping the countries in our neighbourhood build stable and open institutions and prospering economies.

Wednesday, 20 May 2015

Repealing the Human Rights Act: pulling on a thread of the constitution

Britain’s new Conservative government has launched its term by aiming to repeal the Human Rights Act, which was brought in by Labour in 1998 to bring the European Convention on Human Rights into domestic UK law. The Act has largely been a success, enabling the courts to take more account of Convention rights in the cases before them and reducing the number of cases being taken to the Strasbourg court. However, controversial decisions such as Strasbourg’s judgment in support of prisoners’ voting rights and the long-standing line in the right-wing press that the Act is a “criminals’ charter” has made the ECHR, once backed by Churchill and imprinted with British influence, something of a bĂȘte noire of the Tories.

So the Tory attack on the HRA isn’t a surprise – it was in their manifesto for this election, and it has long been a proclaimed goal of the party. In its place is supposed to be a “British Bill of Rights”, but it’s not clear what the difference will be. Already under the HRA, judges can only interpret laws so that they are in line with human rights, but they cannot overturn laws passed by the UK Parliament. If Parliament passes a law that breaches human rights, then all the courts can do is issue a declaration of incompatibility, referring the issue back to Parliament. This might seem odd to those from countries with constitutions that restrain the legislature from breaching people’s rights – and indeed, the devolved administrations in Scotland and Northern Ireland are prohibited from doing so and can have their Acts struck down by the courts – but the HRA is designed to preserve Parliamentary sovereignty. In addition, the UK courts only have to “take account” of the jurisprudence of the Strasbourg court, so making the European Court’s decisions less binding is not really the issue that some of the Act’s opponents make it out to be. And in the end, of course, the Strasbourg court is the court of final appeal on human rights matters in Europe. That’s simply a function of being a member of a court – that’s what it’s for – so fiddling with domestic law isn’t going to change that.

However, former judge Lord Bingham’s question of what rights people want to remove is just one of the challenges the Tory plan faces. It turns out that the Human Rights Act is linked at a fundamental level to the devolved institutions. It’s built into the local constitutions of Scotland and Northern Ireland and there is no desire for repeal there. Scotland’s representation in Westminster is now dominated by the fiercely anti-Tory Scottish Nationalist Party, which opposes repeal, and the Human Rights Act is intimately bound up in the Good Friday Agreement that brought an end to the Troubles in Northern Ireland. The Good Friday Agreement is not just the basis of Northern Ireland's peace process government, but a treaty between the UK and Ireland that has been deposited with the UN. Now the Irish government is finding that not only does it have to worry about a potential Brexit, but also the potential unravelling of peace in Northern Ireland.

A possible solution to this, repealing the HRA for England but leaving it in place in Scotland, Northern Ireland and Wales, but that immediately makes the exercise ridiculous. How can you have two sets of fundamental human rights across the same state? Are people deserving of more or fewer rights depending on what side of the border they’re on?

It’s hard to imagine anything more fundamental than the rights of people, and you would think that any changes would be a matter that should be made with cross-party consensus and put to the people in a referendum. But here it looks like a party political wheeze aimed at throwing red meat to the Conservative’s Euroskpetic backbenchers. Ironically, here too the government could run into difficulties as some Tory backbenchers may rebel over the plan to repeal. Normally it’s the Euroskeptics who rebel frequently and drag their party further to the right, but with a majority of just 12, it wouldn’t take many MPs to blow the government off course, and MPs like David Davis (who resigned and stood again in his constituency to highlight his opposition to the then Labour government’s terrorism legislation) could be a real headache for Cameron. The opposition is likely to almost completely united against repeal, so every Conservative vote counts.

Euroskeptic Conservatives may imagine that repealing the Human Rights Act is a great act of freeing the UK from European courts, but it will soon become apparent that repeal threatens to tear at the UK’s constitutional fabric.

Tuesday, 19 May 2015

Judicial expansion on the cards as the ECJ is sued for delays

The length of time the EU courts can take before they give their rulings can be long – so long that they can even run into years - so now disgruntled litigants are suing the court itself for the delays. Famously the Italian justice system was so slow that the European Court of Human Rights found that, in the case of Ferrari v Italy (1999), that there were some 1,400 similar cases before the court concerning court delays.

The action against the EU courts will be embarrassing, though thankfully not to the same extent as Ferrari. Although the time taken for cases to be heard and receive judgment can be extraordinary – there’s a case involving Rubik’s Brand Limited dating from 2006 that’s still ongoing – the courts have been asking for more judges to help them deal with their workload for some time now. For a long time Member States couldn’t come to an agreement on the extra judges. The courts had only asked for another 12, but in a Union of 28 Member States it became hard to decide “whose” judges these would be.

In the end the Member States decided to come up with a new round of 28 judges to make sure that national representation in the courts remained equal. They won’t all have arrived until 2019, but they should be more than enough to whittle down the judicial backlog. But the question now is how much will all of the delays to date cost the EU in compensation pay outs…?

Wednesday, 13 May 2015

Solidarity over Refugees is a key test for European Values

The Commission is planning to propose binding quotas for Member States accepting refugees.  This would be a major break from the Dublin Regulation mind set, where asylum seekers can only apply where they enter the EU – a system that has put intolerable pressures on the Mediterranean countries to the benefit of northern Europe. The Commission plan aims to have an equitable division of refugees, taking into account a Member State’s population, economic situation, employment levels and the number of refugees already accepted by that Member State.

The European Parliament has also called for binding quotas to be put in place to share the influx of refugees more equitably, with a grand coalition of the EPP and S&D backing the motion. The situation highlights not only the moral imperative to act to help those trying to escape desperate circumstances, but also the fundamental tension between the Dublin Regulation’s “common border” approach and the lack of true common policies within the EU on asylum seekers.

Getting agreement on any binding quotas will be an uphill struggle. In the wake of the most recent Mediterranean tragedies, EU ministers failed to agree on 5,000, so the Commission number of 20,000 appears ambitious.  Though the UK, Ireland and Denmark would not be bound by such quotas (they have an “opt-in” in justice and home affairs matters, except for Denmark which has an opt-out), the UK’s new Conservative government was quick to make clear that it won’t accept mandatory quotas and would reject this and any other future Commission plan on quotas. Within the Schengen zone, Hungary has also raised objections. The Commission will have to be creative in balancing Member States’ concerns over sovereignty over borders and immigration while being bold enough to push for a system that will commit Europe to living up to its global responsibilities.

Tuesday, 12 May 2015

Interesting Times in Britain

Thursday’s election in the UK returned, against all expectation, a majority Conservative government.  In the months in the lead up to the vote the polls had shown the Tories and Labour in a tight neck-and-neck race to become the biggest party in the Parliament, with UKIP, the Liberal Democrats and the Greens also fighting for seats. The Scottish National Party was on course to overturn the Labour majority in Scotland, and all the talk was of a hung parliament with Ed Miliband’s Labour party in a better position to form a coalition or minority government.

In the end Labour was heavily defeated in Scotland and England. The defeat in Scotland was so devastating that the SNP now hold all but 3 of the Scottish seats, with their candidates unseating Labour heavy-weights (Labour’s foreign affairs spokesman was unseated by a 20-year old politics student, who will presumably be automatically granted her degree by the university). The Conservatives managed to take some seats from Labour (the net exchange was slightly in Labour’s favour, but they didn’t make up nearly enough ground to offset their Scottish losses), and the Lib Dem seats were divided by the Conservatives and Labour, leaving them with a mere 8 seats.

A majority Conservative government and a strong SNP presence in the Parliament heralds some interesting times for Britain. Cameron has had trouble with the rebellious right-wing of the party in the past, which has driven him into ever more Euroskeptic positions. The slim majority his government will have means that these rebels could have a big impact on the government, ensuring that it is steered further to the right.  Meanwhile, the SNP were elected on a platform of being anti-Conservative and anti-austerity, as well as seeking to maximise Scottish autonomy within the UK after the failed independence referendum. Together with the two big issues of this parliament – how to deal with devolution in Scotland (and its effects on England) and how to define the relationship with the EU – it looks like the next 5 years will be politically turbulent. Already this weekend Cameron appointed Michael Gove as Justice Secretary with the job of repealing the Human Rights Act that transposes the European Convention on Human Rights into UK law.

Since Cameron announced the referendum on EU membership in 2013, he has failed to properly articulate what he wants to change. The last government laboured over a report on the UK-EU relationship, which was meant to be a comprehensive inquiry into the balance of competences. It got a lot of PR at the time, but ever since the report concluded that the balance of competences are pretty much right, the report has sunk into political obscurity. The referendum, whether in 2016 or 2017, will now have to be held, but the shape of a “reformed EU” that would be acceptable to anyone has yet to be defined.

It’s going to be a rocky few years in the UK…