Stripping Citizenship

Last week the UK House of Commons voted on an amendment to the Immigration Bill that would empower the Home Secretary to strip foreign-born terrorist suspects of their UK citizenship, even if it would render them stateless. (Those with dual citizenship can already be stripped of their British citizenship). The amendment reads (p.3):

"(4A) But that does not prevent the Secretary of State from making an order under subsection (2) to deprive a person of a citizenship status if—
(a) the citizenship status results from the person’s naturalisation, and
(b) the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory.”

The decision doesn’t have to be made following a court ruling and it isn’t made by a court – it’s made by the Secretary of State herself. The amendment was proposed by the Home Office Secretary of State, Theresa May, and was reportedly aimed at drawing Tory back-benchers away from an amendment that would have limited criminals up for deportation’s ability to rely on the right to family life under the European Convention on Human Rights. That amendment was defeated with the help of Labour and the Liberal Democrats.

The vote is another example of how difficult it is for Cameron to control his back bench, which will be worrying for him come the European elections. At the moment the Conservatives are expecting to come behind UKIP in the May poll, but even with that factored into their calculations, the back benches may take the result as a spur to become even more rebellious.

Disappointingly, the anti-immigration rhetoric has meant that the other parties have failed to take a firm stand on the issue of taking away citizenship. On Question Time on Thursday, the Labour and Lib Dem representatives weren’t able to give a clear “yes” or “no” on whether or not they supported the idea. UK politics seems to be stuck on an illiberal course…

No Free Movement Rights for the Working Class?

The debate over the free movement of people is continuing to grow. It's worth remembering that EU citizens currently have the right to reside in another Member State for 3 months to look for work, with no obligation on the host Member State to provide benefits (Citizen's Directive, PDF). They can stay longer than 3 months if they are employed, self-employed, or have the resources to support themselves. When they're a worker (an employee), then they have access to the same social and tax advantages as the host country's nationals (Directive 1612/68).

In the UK, some Tories are calling for a 2 year period before EU citizens will have access to the welfare system. That's 2 years of living, working and contributing in a country without being able to draw on the same support open to other citizens. Given that so many supported by the welfare system are in work (an indication of how wages have stagnated and the worrying necessity to support those in work to ensure that they can actually make a living), such a long period would greatly disadvantage poorer people from exercising their Treaty rights in practice.

Labour appears to be thinking of controlling intra-EU migration for the skill levels of the migrant, as Chuka Umunna said on the BBC's Question Time last Thursday:

"Umunna said the EU should change its rules to prevent citizens from travelling to other member states in search of work, with a focus on banning highly skilled workers from less affluent EU members taking low-skilled jobs in richer member states.
[...]
He said this would revive the spirit of the EU's founding fathers, who wanted to encourage freedom of movement for highly skilled workers to highly skilled jobs."

I'm not sure what founding father he's talking about; he didn't quote any and I can't remember any famous quotes about Europe only being for graduates. Labour's position is very confusing. They seem to be talking about preventing movement to other countries to find work (so you'd already need to have a job before you move), preventing highly skilled workers from the new accession countries from taking lower-skilled jobs in the older Member States (which sounds like a bureaucratic nightmare to define and enforce, never mind getting all the Member States to sign off on it), and limiting the free movement rights to the highly skilled.

This last point, which seems to be the most likely, is an odd position for the Labour party. So the highly skilled (presumably also those from more privileged backgrounds) should have these rights but the less well skilled shouldn't (which is hard to define and probably just means "poor")? It's a sad state of affairs when the Labour party is for disenfranchising the poor in Europe rather than opening up more opportunity and creating work and security...

Even the Liberal Democrats have voiced support for limited access to benefits. Perhaps someone can explain the electoral rationale behind this move, because I can't see it. Nobody who wants a tough stance on immigration is going to vote for the Lib Dems over the Tories because of this. The net result is that there's no real political voice that is speaking out in defence of free movement rights.

It's widely reported, and accepted by supporters for tougher immigration controls such as Migration Watch, that EEA migrants claim less than locals, and contribute more to society and the economy than they receive in social welfare. The political weather has changed so much that even the politicians that make this argument are supporting a dilution of free movement rights. This political cowardice just lets the panic over immigration to grow. Without dissenting voices, the political culture as a whole shifts in an ever more anti-immigrant direction - you could say that it's a microcosm of the overall EU debate in the UK.

Political attitudes of the CSU in Germany are also hardening on this, though opinion polls suggest that a majority thinks that Germany has benefited from immigration and that it has benefited from EU membership overall.

Tories' draft EU Referendum Bill confirms the poor state of the party

The UKIP victory in the local elections in England at the start of the month continues to make its impact felt on British politics. After former Tory ministers publicly backed withdrawal, and present Tory ministers indicated that they too would vote out if a vote was held today, Cameron has signalled that his party will publish a draft referendum bill today. As it is not coalition policy (the Liberal Democrats oppose such legislation), it will be introduced as a private member's bill, and will not be passed. The Bill is aimed at setting the referendum for 2017 as a way of "copper-fastening" the referendum so it doesn't depend so much on the outcome of the general election.

Ironically for the party whose rebels staged battles over parliamentary sovereignty in the debates over the EU Bill, the Bill would by its nature seek to bind a later parliament (though it would be for the next parliament to decide whether or not to repeal it).

This Bill confirms the poor state of the Conservative party at the moment. It continues to be rattled and drawn into civil war over the EU, even though the polls showing the +9% boost for UKIP also show a drop in support for the position of leaving the EU (though public opinion is still pretty Eurosceptic). The Conservative party is reeling over its position in the polls, but will its Eurosceptic strategy pay off for it?

It's hard to see it winning over those who have left the party to vote UKIP - this is, after all, the Prime Minister who was hailed by the Eurosceptics of his party for his decision to leave the European People's Party, for his veto of the Fiscal Pact negotiations and his speech on Europe just a few months ago. Cameron's arguably been more Eurosceptic in power - with the Liberal Democrats as coalition partners! - than Thatcher was. The splits and the infighting show the weakness of Cameron as a leader, an indiscipline of the party. Eurosceptic shifts are unlikely to win back voters from UKIP, which is now a party of protest rather than just an anti-EU party, but will probably put off centrist voters that tend to be key in winning elections.

In this vein, Henry Hill has an interesting article on how the Conservative party is dealing with its core-vote-or-centrists dilemma.

The Eurosceptic positioning throws up a strange problem: by constantly reinforcing a negative image of the EU in order to prove Eurosceptic credentials, it will be difficult to portray a renegotiation as a victory and sell the result to the British public. I think the renegotiations are unlikely to bring a major repatriation of powers - opting out the the Justice and Home Affairs area, which is practically current government policy, it a big withdrawal already, so it would have to focus on the limited social and environmental aspects of the single market. Since other Member States will not want their welfare states to be undermined by either a general reduction in standards or undercut by individual country opt-outs, only limited renegotiation is possible.

Essentially, the UK will have opted out of so much, that there's little left but the core project, making it harder for the other countries to concede further. Given the economic condition of the European economy and the previous opposition to Treaty change from the left in many countries, passing a reform of the EU that focuses on the sort of deregulation that the Conservative party seems to want would be incredibly difficult. From a position of bashing the EU and having brought back few changes before putting the deal to an In-or-Out vote, Cameron would be in a weak political position.

If Cameron really believes in his tightrope walk between Euroscepticism and EU Membership, then he's set himself a tough task. He cannot talk too specifically about what needs to be changed, either because he does not know what he wants changed, or he does not want to risk loosing on those negotiating points. He is not strong enough to resist the Eurosceptic right of his party, but the more he appeases them, the more Cameron signals both that voting UKIP affects Conservative policy and he weakens his political position when it comes to his "third way" Euroscepticism.

Why not have a referendum on justice co-operation?

In the UK the Conservatives have been blundering about with EU policy again. Home Secretary Theresa May, who talked about rolling back the free movement of people not so long ago, is now talking up the possibility of the UK opting out of the area of freedom, justice and security altogether. The coalition LibDems have not exactly killed the idea, but pulled the rug from under May when he said that no decision had been made, leaving May to provide the House of Commons with an empty statement about the government's "current thinking".

There's a lot of comment about how short-sighted it is to pull out of justice co-operation, and on how the Conservative approach to the EU has been a shambolic case of issuing announcements with little thought and then scrambling to deal with the aftermath. While I agree that opting out of the JHA area en bloc is a terrible idea that would weaken the UK's security, I'm confused over why the Tories have been so inept over this issue: why not have a referendum on justice co-operation?

Seriously. If Nick Clegg will only go as far as saying that nothing has been agreed yet (suggesting that the LibDems might be reconciled to the opt-out if the UK opts back into several JHA measures), and ministers are going to engage in such policy kite-flying, then why not put the issue to the people or make noises about doing so? It would give the people a referendum on the EU, let people express an opinion on at least one aspect of the EU relationship that the Conservatives want re-balancing (and why not gauge opinion on what aspects of the EU the public want to buy into?), and would allow the Conservatives to partly deliver on their promise of a referendum on the Lisbon Treaty (in this case opting in or out of the post-Lisbon justice area).

The Home Secretary would not have been able to make a statement straight away, but the Conservatives could have started agitating for a referendum, and there is general agreement that some EU referendum has to happen sometime soon. It would have given the Conservatives space to test waters and refine their position and avoided statement grandstanding while winning a political point on the issue. Sounds like a better strategy than the current farcical posturing.

So why not have a referendum? Perhaps it's because it would be awkward for the party of law and order to campaign for opting out of law and order co-operation - maybe it's just simply politically uncomfortable as a gamble, with little likelihood of success. It's hard to sell the idea that the justice system won't suffer from the opt-out because we'll go back to the EU and negotiate specific opt-ins: not exactly a great rallying cry. And even a total opt-out with no subsequent opt-ins would be a hard sell.

In other words, if you hold a referendum on justice co-operation, the Europhiles would probably be the winners. Now that would be a Tory nightmare worse than their own bungling.

Conservative Party: the Ghost of Referenda to Come

Conservative Europe policy has just been announced (made?) in a speech by party leader David Cameron today. Throughout he took pains to outline the reasoning behind dropping the promise for a referendum on the Lisbon Treaty - it is no longer a Treaty but (from December 1st) an integral part of European law. Moving on to what the Tories meant by "not letting matters rest", Cameron outlined several areas for change:

1. Amendment of the European Communities Act 1972, so that any new Treaty transferring power to the EU is subject to a referendum (including any decision to enter the Euro). This politically does a lot of damage to the idea of Parliamentary Sovereignty while neatly keeping it at its base.

2. The introduction of a Sovereignty Act:

"Because we have no written constitution, unlike many other EU countries, we have no explicit legal guarantee that the last word on our laws stays in Britain.

There is therefore a danger that, over time, our courts might come to regard ultimate authority as resting with the EU.

So as well as making sure that further power cannot be handed to the EU without a referendum, we will also introduce a new law, in the form of a United Kingdom Sovereignty Bill, to make it clear that ultimate authority stays in this country, in our Parliament."

Interesting in that it's the first time I've heard the "unwritten" UK constitution being bemoaned as a weakness by UK politicians - of course, the Conservatives wouldn't propose a written constitution. The idea behind the Bill seems to be that there will be a constitutional court set up* (or powers given to the Supreme Court) to examine the constitutionality of EU measures (a role that's really reserved for the European Court of Justice in Treaty law). The argument runs that the German Bundesverfassungsgericht does this already, but I wonder if it will be an appellate court (i.e. cases have to be referred to it) or a legal body that politicians refer legislation to. The problem here is that, so far, the German Constitutional Court as deferred to the judgment of the ECJ and there is no procedure or plan for what would happen if the ECJ and this new court (or the German court) came into conflict. Citing the German Court as a model isn't really citing a stable or tested example.

It will be very interesting to see the wording of the legislation. (Also, it's notable as the one policy where the Tories are proposing an increase in judicial power, instead of maliciously interfering with the remit of the courts. I wish that the UK courts could test the constitutionality of UK law the way that the ECJ tests EU law...).

3. Parliament would have to assent to any use of Treaty clauses that permit a policy area to move from unanimity to Qualified Majority Voting (by an unanimous vote).

4. A Tory government will seek an opt-out on areas of social policy, criminal justice and the Charter of Fundamental Rights. Setting aside the actual content of social policy and the usefulness of some criminal law co-operation in the context of a borderless common market, let's look at the Charter:

"We must be absolutely sure that this [the Charter] cannot be used by EU judges to re-interpret EU law affecting the UK.

Tony Blair claimed that his Government obtained an opt-out from the Charter.

But what he got – as the Government have now admitted - was simply a clarification of how it works in Britain.

We will want a complete opt-out from the Charter of Fundamental Rights."

...Because human rights are for losers, right? This is consistent with Tory opposition to any regime of binding human rights (they want to repeal the Human Rights Act 1998, which incorporates the European Convention on Human Rights into UK law). How exactly will the ECJ interpret (what exactly is "re-interpreting" law, Mr. Cameron?) in a way that the Tories fear? It's not exactly clear, apart from the general wailing and gnashing of teeth the Conservatives seem to give at the mere mention of "rights": rights are something to be feared in conservative political thought.

In any case, how practical and useful would a complete opt-out be? The Commission would draft laws with the Charter in mind, and the Council and EP must respect the Charter, so, unless they try to contravene the Charter, EU laws will mostly comply with it. So Charter compliance will ideally be the rule and not the exception of produced legislation. Regulations apply across the EU, so if the ECJ interprets a regulation into line with the Charter, would there be a different law for the UK? Or will it depend on whether or not the case comes from the UK or not, how the ECJ uses the Charter? The most practical use of the opt-out would be with national law that transposes Directives, but would this be complete enough for the Tory party?

Social Europe Journal has a good bit on the Tories' attitude to rights law in general:

"David Cameron appears never to take any legal advice on, er, laws. His puffed up ‘British Bill of Rights’ would not in any way remove any law already passed because it represents an incorporation of the ECHR (to which we are signatories) into UK law, and this is the basis on which the case law is made. The law would remain, it would just be more expensive both for claimants (many of whom have suffered intolerable abuses) and the taxpayer (all of whom will face intolerable abuse as a result)."

1-3 are all achievable by a Tory government without having to negotiate with the other member states. #4 would require Treaty change and the assent of the other 26 member states. So what concessions will the Conservatives make (as one journalist asked Cameron)?

The answer seems to be "none". The Rebate? Untouchable in the minds of the Tories and the grassroots - it's viewed as something to be defended, not traded away. Integration in other areas seems to be out of the question. As for threats? A Tory government could oppose the accession of new member states, but the party is firmly committed to the policy of enlargement, and France and Germany would jump on it as an excuse to keep out Turkey.

Could there be another Empty Chair Crisis to bring back the Luxembourg Compromise? The cause of the original dispute (France not wanting the EP to have a say over the agricultural part of the EU budget) has only been cleared with the Lisbon Treaty.

This is a Tory party that has shed almost all association or common thought with continental Christian Democracy, has dropped its tradition of pragmatism and is suspicious and hostile towards the judiciary. I can only describe the Tory party as dangerously constitutionally illiterate.




* Which would only look at the EU, of course. It couldn't look at the UK constitution, because, in the UK, the politicians tell the courts what constitutional law is.

Lisbon Treaty Ratified: only months of speculation left!

In the course of one day, the Lisbon Treaty has had the challenges against it rejected by the Czech Constitutional Court, and Klaus has finally signed it into law. The Treaty has now been fully ratified in all 27 member states, and the way is clear for it to be brought into force on 1st December.

So ends almost a decade of wrangling, negotiation and debate (of varying degrees of coherence). But fear not, the endless speculation about how the constitutional structure of the EU will evolve isn't over yet - though the prospect of a referendum on the Treaty is off the table for the Conservatives, when they announce their policy tomorrow (some political improv from Cameron, perhaps?), it will almost certainly feature a commitment to tinker further with the EU constitutional system.

The question is: how practical will the Tories be when it comes to their (re)negotiation over competence? When reflecting on the Tories' record on Europe, the capacity for pragmatic engagement isn't particularly confidence-inspiring, especially given the recent news of how much influence hardline Eurosceptics (in particular "Better Off Out" supporter Daniel Hannan) will have on the political thought and direction of the ill-conceived European Conservatives and Reformists Group.

But it's not just that the Conservatives seem stuck in an ideological black hole on Europe; Tory policy making seems to have lost all sense of pragmatism when it comes to constitutional thought - and even all sense of clear thought of how principles should be carried out. This was made clear for me when Cameron spoke on constitutional reform within the UK, which was full of weak sops to parliamentarianism mixed with attacks on judical power and on the concept of entrenched human rights.

Practically speaking, there's not much the Tories can realistically ask for; it will need a lot of political goodwill to get any concessions through, since it will require treaty change, which will be subject to unanimity. Would the UK need to offer something to gain opt outs? The obvious concession would be the Rebate (which is nigh-on indefensible), but it's hard to square this with Eurosceptic thought that the UK is (1) already paying too much, and (2) the appearence that as the UK withdraws from aspects of the EU, it's harder to explain (particularly to an Eurosceptic audience) how paying more is justified. In any case, the concessions the 26 can offer is extremely limited by the nature of the Union (after all, despite the opt-out from the Charter, if legislation is drafted and passed in a way that respects the Charter, the opt-out's practical effect may be limited).

In fact, the rhetoric and practical issues involved mean that it's hard to see how the changes can be either very trival (such as the Economist's passport example) or quite fundamental (to the point of leaving the EU).

And if that doesn't keep you from going into post-Lisbon withdrawal pangs, there'll no doubt be lots of opportunity to analyse how the Lisbon reforms are playing out in practise.

Phew - see? Doesn't sound so bad now, does it?

Progressive reform through Conservative means?

David Cameron yesterday gave a speech on constitutional reform.

I agree with the idea that local councils and devolved assemblies should have more power and autonomy, though Cameron has avoided the whole issue of Parliamentary Sovereignty - if the constitution can be so easily changed to devolve power down, then power can be quickly and easily centralised again by a determined government/parliament. Also disappointing is Cameron's avoidance of the issue of the House of Lords.

It would be too much to hope for Cameron to start a debate on the sorts of policy and the areas of competence that local government should have - and what this means for policy areas such as health, policing and education. If health is controlled more locally (decisions over medicine provision, etc) then how will/should that affect access to health care outside your area (if it should be controlled locally to a degree)? Should police be subject to some local control, and what are the implications for the political neutrality of the police? Hopefully now the issue of competence has been raised, there will be some debate on it.

I like the talk on the power of the whips being reduced for the early stages of the legislative process, but how will this be enforced? If it's just a political convention, political pressure could see a government or an opposition increase the power of the whips again when "politically necessary" for the party. Conventions are weak, and depend on the self-restraint of MPs - perhaps some sort of parliamentary disciplinary procedure for whips who interfere at a point where parliamentary procedure allows MPs a free vote...?

The temptation to break with convention - even the most powerful and respected of conventions - can be very tempting when there's a political advantage in it. Daniel Hannan has recently called on the Queen to dissolve Parliament and call an election if Gordon Brown doesn't:

"If the Prime Minister will not ask the Queen for a dissolution, perhaps she should force his hand. Her constitutional role is very limited, but this strikes me as a case where she might reasonably act. The country unquestionably wants fresh elections. The legitimacy of our democratic system is in the balance. All three party manifestos have been rendered obsolete by events - as much by the financial crisis as by the expenses revelations. The only possible argument against an early poll is based on low political calculation - which it is precisely the Crown's role to transcend. Your ministers have failed you, Ma'am: send for better ones."

If the Queen is supposed to be politically neutral, then she shouldn't intervene - those judgments are political ones, and, really, it's not up to the Queen to judge her ministers. I can't see how the Queen can call an election unilaterally when the polls show that the Tories will win and it wouldn't be see as political. It would be breaking convention and a breach of political neutrality for the Queen to decide what the best political course of action is. Especially since constitutional reform is in the air. The Queen is wise not to start tempting fate by exercising her power in a controversial way (even if you hate Labour) when people are pushing for constitutional reform.

Cameron's speech also has some points I would be seriously critical of:

Cameron's reasons against PR - that in a fixed term parliament it would be bad to have a parliament where the government didn't have a majority and that is weakens voter's ability to decide on the government.

First, the problem of weak governments could be fixed with a minimum requirement of votes to ensure there are coherent parties and if a government can't be formed after, say 3 months or 3 attempts, then there could be an automatic election under a fixed term system - fixed term meaning that parliament or the Queen don't decide on when an election happens, but the stability of a government and the set term of the parliament does.

Second, if parliament is to be strengthened at the expense of the executive, then no government will be able to push through their manifestos and implement them. Wasn't that the point of reforming parliament - so that it would be stronger and more diverse views would be expressed and constituents would be better represented? The more power parliament and individual MPs have, the more consensual politics become, and manifestos are implemented less directly and clearly. If Cameron wants MPs to go through legislation line by line and for parliament to have more legislative input independent of the executive (with perhaps even citizens proposing legislation for parliament to debate), then the importance of government manifestos is weakened as a more consensual approach to legislation is taken. Why then, is a consensual government - or coalitions - a bad thing? If you're going to have a more powerful and consensual parliament, then why not go for PR, where fewer votes are wasted? Does Cameron fear Parliament becoming political? Did he just want MPs to make legislation more efficient and effective and leave the serious politics to the government? Coalition governments can be effective in implementing their respective parties' manifestos - it's more likely that right-wing and left-wing parties will join with like-minded parties to govern, and the changes in policy from manifesto to government need not be so great. And, again, since a consensus needs to be build in Parliament anyway, what's wrong with a consensual government programme? Or to put it another way: why should a party with 1/3 of the vote be able to impose it's manifesto outright?

On Human Rights and the power of the judiciary, I wonder if Cameron actually knows much about this area in the first place.

"...since the advent of the Human Rights Act, judges are increasingly making our laws."

Increasingly? Judges in the common law system always had some law-making power - that's what the common law is: judge-made law. The Human Rights Act involves the interpretation of Acts of Parliament in the light of the Human Rights Act (another act of parliament, though it copies and pastes practically all of the ECHR, it's still an Act of Parliament, and the ECHR only has legal effect because of this). The HRA states that judges can interpret laws into line with the ECHR (which they do, sometimes creatively) or declare laws incompatible if such interpretation is impossible (which has the effect of doing, well, nothing). So judges interpreting law passed by Parliament in light of law passed by Parliament - sounds pretty much what judges are supposed to do, doesn't it?

And the alternative?

Cameron proposes a "British Bill of Rights" to "strengthen our liberties". Ok, so what does that mean, exactly? From the speech, it sounds like he thinks that the HRA has gone too far, so I would guess that he wants a diluted version of the ECHR. Does he propose pulling out of the ECHR? If not, people can still appeal to the court in Strasbourg which, although unbinding (almost like the judges' rulings under the HRA if there's incompatibility), it does have a political effect. So does he want less rights than the ones under HRA? More? What does he want - does he have policies or is he just staking out a populist decision? And again, what about the old question of Parliamentary Sovereignty - where does Cameron stand? If, under a British Bill of Rights, the rights are enshrined and cannot be repealed by implication by Parliament and judges still interpret the law, then judges have the same power (maybe more if declarations of incompatibility start to mean something), but if PS is reasserted, then rights won't be protected as well as they will be vulnerable to the whims of Parliament. So what's it to be, Cameron?

Finally, on Europe, Cameron highlights it's unaccountability and its remoteness. So, where are his policies? What powers should be taken back? What policy areas shouldn't be? On the policy areas that shouldn't be, what policies will the Conservatives pursue in the EP and how should the EP be reformed to make it more in touch with voters? Cameron has failed to articulate any opinions he has on these issues (and you never know, he may have some) despite the looming European election. How do you propose to make the exercise of power in the EU that you're happy to leave there more accountable if you fail in your duty to explain and formulate policies for the voter to choose or reject?

Sadly, the Conservatives are far from alone from this in the UK.