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 bête 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.

Juncker, Confidence votes and Parliamentary battles

The Juncker Commission easily survived this week's motion of censure in the European Parliament, with 461 against, 101 for and 88 abstentions. The motion was brought by a Euroskeptic bloc of the Europe of Freedom and Democracy with support from Front national (a particular point of controversy in the UK where UKIP said that they would not sit with FN in the Parliament but are working with them on this high-profile issue), on the basis that Juncker is unfit to lead the Commission in the light of the damaging Luxleaks scandal.

A majority of the EPP, S&D, ALDE and the Greens rejected the motion (the European Conservatives accounted for most of the abstentions) - the parliamentary majority that backed Juncker and his Commission so recently and after facing down the Council to put him there is unlikely to unseat him so readily. It would also be a very panicked response to ditch Juncker before the competition investigations (and perhaps one of the Parliament's own) is complete.

While the motion was at least in part a cynical ploy by the Euroskeptics - to paraphrase ALDE leader Guy Verhofstadt - it was important to have this debate in the European Parliament. No-confidence votes are held in many national parliaments every so often, particularly where there's a scandal affecting the head of the executive, so miffed Europhiles shouldn't take it too personally. After all, just having the debate is a reminder that in the case of the Commission, the Parliament can not only giveth, but also taketh away...

Detoxification was so last decade; say hello to UKIP-lite

David Cameron once told the Conservative Party to "stop banging on about Europe". Now, having let it be known that he could support a Brexit if there isn't sufficient repatriation of powers, it's hard to see how he's going to be able to stop banging on about Europe himself, never mind the Conservatives. It's yet another step the right wing of the party have forced Cameron to take: first he brought the Conservatives out of the European People's Party, then he tried to veto the Fiscal Stability Pact, then he held his big speech on Europe and promised a renegotiation and referendum by 2017. Far from bringing the right-wing of the party onside, the Tories are in a state of near civil war.

The Conservatives themselves have been hit by 2 defections by sitting MPs to UKIP: Douglas Carswell and Mark Reckless.  Both of them have resigned their seats to contest by-elections, which appears to be a strategy to keep the political pressure and momentum running in UKIP's favour: with staggered out by-elections in the lead up to the general election, UKIP could have the Tories constantly looking over their shoulders for UKIP.

But if the decision to stay or leave the European Union is a pragmatic decision for Cameron (if, I suspect, one where the security of his premiership weighs quite heavily as a factor), it's a reckoning for others. John Redwood, a former Conservative cabinet minister, has warned businesses not to speak out in favour of remaining within the EU:

"If they don't understand that now they will find those of us organising the 'get out' campaign will then make life difficult for them by making sure that their customers, their employees and their shareholders who disagree with them - and there will be a lot who disagree with them - will be expressing their views very forcefully and will be destabilising their corporate governance."

It's not often you hear a Tory talk about destablising corporate governance! (I can't wait to see Redwood camped outside the Confederation of British Industry telling worker of the world to unite). For me this sums up how much leaving the EU has become an article of faith for much of the Conservative party. Leaving the EU itself seems to be a symbol for being able to push ahead with other right-wing policies: cutting red tape, getting even tougher on immigration, cutting taxes... When Cameron was first elected leader of the Conservative party, he wanted to detoxify the Nasty Party, but now much of the party is set on turning to "true conservativism" in the belief that this is the only way for the party to win (or be worthy of winning) elections. And increasingly the Conservatives are equating true conservatism with UKIP.

Merkel's CDU and Alternativ fuer Deutschland: the Saxon result

The euro-skeptic (rather than Euroskeptic) German party Alternativ fuer Deutschland won almost 10% of the vote in the state elections in Saxony, coming in ahead of the Green Party. The win has been a big boost for the party, propelling it into the Saxon Landtag while the liberal FDP and far-right NDP drop out as they didn't win enough votes to clear the threshold for entry.

The rise of the AfD has been reported on elsewhere on how it could impact Angela Merkel's CDU and her EU policy (it's hard to imagine even 5 years ago so much interest being shown in a German state election). But I don't see the result as one that would pressure the CDU to take a more Euroskeptic stance. It's important to note two facts when thinking about the AfD's impact on the CDU: that the CDU has retained almost 40% of the vote, its percentage dropping only slightly since the last election, and the turnout was very low at 49%.

Concern over the "splintering of the right" in Germany is another angle that's being reported on, but it also looks a bit overblown - the last federal elections saw the economically right-wing FDP party lose all their seats, with the CDU the largest beneficiary - a huge consolidation on the right, at least federally. In some ways the AfD, with its economically right-wing positions, is starting to fill the political vacuum left by the decline of the FDP.

Of course, the AfD is not the FDP: it's a protest party and hard to pin down on many of its positions, but its leadership is on the economic right and it has attracted a socially conservative membership who may have been former CDU supporters disappointed that the CDU has become socially more centrist (though there are still plenty of socially conservative voices in the CDU too). Saxony is also a state that has seen support for the far-right NDP, a nationalist party that is periodically the subject of banning attempts. So it makes sense that the AfD took votes from the FDP and a small number from the NDP (not to mention that it would be more respectable to vote for the AfD than the nationalist NDP). Oddly for a protest party, it looks like those who voted for it in Saxony are largely satisfied with their own economic position.

The CDU has kept its distance from the AfD, leaving the Social Democrats and the Greens as its two possible coalition partners for the state government, and a similar stance is being taken on the federal level. Its euro-skeptic stance and protest party style makes it an unsuitable and probably unstable coalition partner, and a coalition with it could toxify the CDU when it is the biggest of the 2 big tent parties and is comfortable with coalitions with the centre-left. The rising profile of the AfD could boost the socially conservative and anti-transfer union voices in the CDU, but at the moment the AfD hasn't actually eaten into the CDU's vote to a significant degree. And it should be remembered that the CDU is in coalition with the Social Democrats at the moment - a party that would like to ease austerity in Europe - so Merkel's government is probably relatively insulated from the AfD's politics.

The Great British Cabinet Reshuffle

David Cameron has reshuffled his government for the last year of the parliamentary term, giving us the ministerial faces that will fight the next election. Reshuffles in themselves are generally not a major event for the European political sphere - Ireland had a government reshuffle last week, which might be of more interest to those still pondering Juncker's question of how to get elected after running an austerity government - but the UK government reshuffle has attracted some comment over the perceived Euroskeptic shift.

The last of the old Tory Europhiles, Ken Clarke, and some of the more pragmatic ministers such as Dominic Grieve and even William Hague (he of the 10 Day to Save the Pound fame) are gone. In their place is the new class of 2010, who are generally younger and more ideological. Richard Hammond, the Euroskeptic Defence Minister who publicly indicated that he would vote Out in an EU referendum unless there is enough to the reform package, is now the Foreign Secretary. The reshuffle has sparked fear in some quarters that it marks a turn for the worst that could signal the start of moves to take the UK out of the European Convention on Human Rights.

But we shouldn't get over-excited. The main focus of the reshuffle is domestic, like all other reshuffles. Promoting the younger generation of Tories is more about making the ministerial benches more diverse and slightly more gender-balanced while harnessing their zeal for the campaign. In Michael Gove's case (the highly divisive Education Minister), there has been a surprising demotion to Chief Whip (to reports of teachers celebrating in classrooms). The new cabinet is more Euroskeptic, but the focus is on the next election rather than on a big bust-up with Europe.

The next Tory manifesto will be the real test for how far the Conservatives will go. If a pledge to withdraw from the ECHR makes it into it, then we can be sure that Cameron has thrown in the towel on pretending to have a moderate European course. Membership of the ECHR is fundamental to membership of the Council of Europe and the EU, and a pledge to withdraw would indicate that Cameron himself could campaign for an Out vote. Nominating Lord Hill to be the next UK Commissioner may be a pragmatic sign (he's reported to be relatively pro-EU), but the Liberal Democrats would have had a say in moderating the government choice, so it's not exactly a clear signal. Hill is also an unknown figure with little obvious connection to a Commission portfolio, making it harder for the UK to get a good post (or harder for Juncker to reconcile with Cameron!), which could add to the narrative of Britain being sidelined in the EU.

In any case, the big fights will come after the next election, when a new cabinet would have to be formed. This reshuffle may be a Euroskeptic turn for the Conservatives, but it really doesn't tell us much new. Cameron's policy of appeasing the Euroskeptics has been heading this way for some time, and domestic political calculations are the biggest consideration here (Cameron is hardly famed for his long-termist thinking on Europe). It will be the next election manifesto that will be the true benchmark for how far Cameron is willing to go.

State of the political groups

The various national political parties in the European Parliament have had until today to form political groups: by allying with parties from at least 7 other Member States with a minimum of 25 MEPs between them, they are entitled to EU funding and are in a better position to get good seats on parliamentary committees. For the mainstream groups of the Socialists and Democrats, the European People's Party, the Alliance of Liberals and Democrats and the European Greens-European Free Alliance, there has been little change, with most of the movement on the right of the political spectrum.

Current group positions:

EPP: 221
S&D: 191
ECR: 68
ALDE: 67
UEL: 52
Greens: 50
EFD: 48
Non-Attached: 43
[The EP still lists 11 as "others", so they might join a political group yet and possibly change the rankings again].

The Europe of Freedom and Democracy has managed to reform. The grouping that Nigel Farage led in the last Parliament looked like it might be squeezed between the European Conservatives and Reformists and the new far-right alliance of Le Pen and Geert Wilders, but in the end enough MEPs from different countries were found. The biggest gain for the EFD was the membership of the Five Star Movement, which had been considering joining the Greens. The EFD has grown from 32 to 48 MEPs despite the change in membership (the Danish People's Party has left for the ECR) and the reduction in total EP seats, and it remains the smallest group.

The European Conservatives and Reformists have been the biggest winners from this group reshuffle. From being the fifth group in size, behind the Greens, in the last Parliament, the ECR is set to edge out the Liberals as the third biggest group (growing from 54 to 68 MEPs). This should be a big boost to its political weight in the EP, but it's unlikely that it will win the EP Presidency given the likely EPP-PES deal to take turns over the post. The ECR attracted the Eurozone-skeptic AfD and the Danish People's Party, along with a smattering of other individual MEPs. It's possible that this intake could shift the ECR in a more national-conservative direction, so while the group may be founded on a free market platform, this could start to take a back seat to concerns over free movement of people and cultural issues. This might depend on how far the AfD takes a socially conservative direction and whether it can retain a free market outlook. It will be interesting to see if the ECR will "detoxify" the Danish People's Party, or if they will toxify the ECR...

The United European Left grouping has also boosted its numbers from 35 to 52, with the Spanish party Podemos. EUObserver reports that the group is split between those that are anti-EU and those who favour more integration to solve economic and social issues (it seems that Podemos leans towards federalism). Meanwhile the Le Pen-Wilders project for a far-right alliance has failed to bring together enough MEPs from across the EU to form a political group. For now the Front National and the PVV will sit as Non-Attached.

For the EPP and S&D, little has changed. The German delegation is the largest now in the EPP and the S&D's biggest delegation will be Italian, but apart from that there doesn't seem to be any major changes. Likewise ALDE and the Greens have not had any major additions or losses in the re-shuffle - which could be seen as both groups having settled identities (any liberal/Green party that could join probably is already aligned with them).

Over this splintered Parliament it looks like Martin Schulz will re-take the President's chair as part of the coalition between the EPP and S&D. It remains to be seen if the Grand Coalition will stick together on the big issues or if it will only stay in place as a deal over the top posts.

A very Cameronian blunder

Since the election the backing for Juncker as the European Commission President has stiffened, from Angela Merkel to even European Left candidate Tsipras saying that Juncker deserves to get the job if he can get a parliamentary backing, because that's the democratic, parliamentary process. Set against this, Cameron's campaign against a Juncker presidency looks more and more misguided by the day. While the Netherlands, Sweden and Hungary are against Juncker, by leading such a prominent campaign against him, Cameron has probably made it more likely that Juncker will get the presidency.

Cameron tends to have a very short-term, tactical approach to politics, particularly when it comes to the EU. The big speech that was supposed to outflank UKIP clearly didn't - in fact, the more the Conservative party echoes UKIP, the better UKIP seems to do. Promising a renegotiation and an in/out referendum on the basis of the result hasn't done much to quiet his party on the matter either (with people now wondering if the referendum date of 2017 will be brought forward to 2016). When wielding the veto in December 2011, Cameron was able to strike the pose of a decisive leader with good Euroskeptic credentials, but the ability of the other countries to go on without the UK ended up showing how devalued a veto can be. (If the UK had taken part in the negotiations while holding on to the veto, it would have been able to shape the agreement and it's potential veto would have carried more weight towards the end of the process). This short-termist thinking is often traced back to Cameron promising to take the Conservatives out of the EPP as part of his platform for the party leadership.

Opposing Juncker's candidacy was always going to be risky. While the campaign might not have been as high profile as some would have wanted, it's difficult to name alternatives from outside the Europarty candidates - Lagarde has ruled herself out, and many of the others are serving Prime Ministers and Presidents. Pascal Lamy, director-general of WTO and formerly the chef de cabinet of Jacques Delors, is hardly a fresher name than Juncker when it comes to EU politics. More importantly, the European Parliament is set on getting one of its candidates in the job, and they can veto any nomination by the European Council. It's difficult to see any of these speculative alternatives giving up their jobs (or present themselves as willing to give up their premierships/presidencies to their national electorates), to place themselves in the middle of a power struggle between the Parliament and the Council.

And while the UK has some allies on its side, it's going to be very difficult to form a blocking minority in the European Council. Cameron's view on EU politics seems strikingly simplistic - focused on winning over Merkel and co-opting Germany's political weight in Europe. It's hardly a secret that Merkel is lukewarm on a Juncker presidency, but the German media rallied behind Juncker when it was suggested that the UK may be threatening leaving the EU. That the CDU's coalition partners in Berlin, the Social Democrats, were so closely wedded to the presidential campaign meant that the pressure on Merkel to publicly back Juncker was strong within the government too. Rather than working to quietly sideline Juncker behind the scenes, Cameron has made it much harder to get rid of him by forcing public declarations of support or opposition.

All this raises the question: if it's this difficult to block Juncker, how much influence would the UK have in shaping the alternative? A nomination still requires a majority. Even if Italy joins the UK in blocking Juncker (a big if, in my opinion, as Italy will soon have the presidency of the Council for the second half of 2014 and will probably want good relations with the Parliament if it wants to push legislation through), will the blocking minority form a coherent enough bloc vote to be able to shift the rest of the Member States (and for the UK to have a decisive role in that)?

Cameron would probably have done better by quickly getting the European Council to adopt priorities that are closer to his position using the election results as political support. The European Council still sets the overall policy direction of the Union (and Merkel has tried to steer the debate in this direction as a way of finding consensus). But now a Juncker presidency will have been badly burned by the right-wing, British-led, opposition to him, and he will be aware that his political base in the Parliament rests on a coalition with left-wing parties who were needed in order to overcome ECR opposition and any EPP rebellions. The institutional balance and Juncker's own affinity for fellow national leaders will mean that his presidency will focus more on consensus rather than confrontation, but it will be far from a natural ally of the current UK government.

Presidential Race: Juncker's Battle for the Berlaymont

The EPP may have won a plurality of seats in the European Parliament, but Jean-Claude Juncker, its candidate for Commission President, hasn't got the job yet. His Social Democrat rival, Martin Schulz, was reluctant to concede (and has not actually completely given up yet), but the numbers in the Parliament mean that Juncker is far more likely to form a stable majority. That's not the end of the story - several Prime Ministers and national delegations oppose his candidacy, so now there could be a stand-off between the European Parliament and the European Council.


Supporters and Opponents

The PES has recognised Juncker's right to the first attempt at finding a parliamentary majority. The seat numbers have changed a little since my first thoughts on the results on Monday, but essentially a Grand Coalition between EPP and PES (around 405 seats) would provide the most stable coalition with a workable majority. However, some national delegations of the EPP, such as Orban's Fidesz, are against Juncker's candidacy, and since the vote on a Presidential nominee is by secret ballot, it's not clear how cohesive a coalition would be in practice. It may be that the Liberals and Greens need to be added to the coalition to ensure there's a majority that can endure a prolonged struggle with the European Council.

David Cameron quickly came out against Juncker. Though Juncker is a centre-right candidate, Cameron calculates that he is too federalist to have in the Commission during his planned renegotiation. It's not clear who Cameron would find acceptable in the job. Two of the other possibilities that are subject to speculation are Christine Lagarde and Pascal Lamy, though I can't see them being arch-supporters of a repatriation programme. Juncker's supposed federalism may be overstated a bit: he's definitely for the status quo insofar as he backs the current treaties and had a hand in how the Eurozone has been reformed so far, but I think he's more of an intergovernmental pro-European - he's very close to the European Council, having sat in it for many years.

Without an alternative, it's questionable whether Cameron's opposition will actually pay off meaningfully for him. On Newsnight it was said that the UK's ability to block Juncker would be a test of Cameron's influence and ability to renegotiate, but at the moment the reward side of this risk is vague at best. (Remember, the European Council makes it nomination by Qualified Majority). Angela Merkel appears to have cooled on Juncker's candidacy (not that she was ever a fan of giving the Parliament the decision over the job - despite the CDU's manifesto pledge that the Commission President become a directly elected post). To act against your party's successful candidate is an odd political decision, especially given the head-to-head debates between Schulz and Juncker on German TV.


Juncker should get the job

The European Parliament has to stand behind Juncker if it wants the elections to be as important as they claimed during the campaign. Agreeing a compromise candidate with the European Council would discredit the Parliament and make the next elections more difficult. After all, the EPP won the most seats, not the Euroskeptics, and for the winning party's candidate to be dumped by the Council now would send a signal for next time to the voters: there's no point paying any attention to the candidates - or even the election - we'll just strike a deal afterwards.

Far from a Juncker Presidency playing into Euroskeptics' hands or ignoring the voters, it would underline the importance of the vote and respect the outcome and the resulting parliamentary arithmetic. Which is why the commentary on the Tagesschau today rightly pointed out that placating Cameron by ignoring the voters is a stupid political decision.

Questions posed by the Euroskeptic tide

The gains for the Euroskeptic parties across the EU poses a few questions for how European politics will develop. There seems to be consensus that the far-right and far-left parties won't have sufficient numbers to block the workings of the Parliament, though it's unclear yet if another far-right grouping forms out of the new NI intake beside the EFD. Having a political group attracts resources and money, as well as winning the group committee seats which would allow the new Euroskeptics to make a bigger impact.

A Grand Coalition between the EPP and PES (with ALDE and the Greens, and occasionally ECR on some issues) will probably be the order of the day. While the presidential race gained some attention in some Member States, it's fair to say that the protest vote is what helped arrest the decline in turnout. But while the Euroskeptic vote needs to be taken seriously, the response must be balanced against the fact that the vast majority of voters voted for pro-Union parties - though with varying levels of enthusiasm.

Politically within the Parliament the most interesting impact may be on the EPP and ECR. Will the EPP start couching its position in terms of Member States' rights (Juncker, though extremely pro-European, has come across as a Intergovernmental type of pro-European, pointing to the legitimacy of the Council on plenty of occasions)? Will the ECR attract some EPP members such as Orban's Fidesz party, which is often at odds with Brussels and has stated that it will not back Juncker?

But the Member States are where the influence of he election result will be most keenly felt.


Member States & Euroskepticism - Will the Member States reverse integration?:

The impact of Euroskepticism will be felt differently across the EU. The success of the far-left UEL parties in some countries, such as Greece and to a lesser extent in Ireland, indicates that treaty change will be harder to push through, but it is a different sort of skepticism to that of the right - from socialism in one country to a stronger (and ironically more integrated) Social Europe. In France, Denmark, Austria and the UK, the anti-EU and anti-immigration vote is closer to what springs to mind when it comes to right-wing Euroskepticism.

I don't think that there will be a move towards turning back the clock on the Eurozone or the Schengen free border area, but tougher rules on access to welfare and public services for those who do exercise their free movement rights could be brought in nationally and perhaps at the European level. It's unlikely that the EU will soften its approach to asylum and immigration. Politicians who want more fiscal union to fill in the gaps of the Eurozone will have much less room to maneuver - expect a lot of policy drift.

The lessons on the rise of the Euroskeptics for national parties may be to accommodate tougher EU and immigration positions in some countries, but the lessons won't be the same everywhere. Classical right-wing Euroskepticism seems to have done well in older, richer Member States, but not everywhere. In The Netherlands, Wilders' PVV lost votes (while the pro-European D66 topped the poll). The CSU, Merkel's Bavarian sister party, was punished for its anti-European stance - but on the other hand, the economically right-wing and Eurozone-skeptic AfD polled well in some of the Laender were elections will soon take place.

For the crisis-hit countries, Eurobonds and pooling debt could be attractive, with a lot of anger aimed at the Eurozone system as it currently stands not necessarily leading to ruling out all integration if it helps them economically. And in Italy the Democratic Party (PES) convincingly beat the protest Five Star Movement with around 40% of the polls, almost double the Five Star Movement's vote - this is a mainstream party, in government but with a reformist agenda, winning big.

So how will this all work out in the Council? Yes, there needs to be a response, but many parties and countries will differ on what the right course of action would be - there are a few lessons that could be learned depending on where you stand, and that's only looking at a part of the electorate.