French Presidential Election 2017 – the outcome.

There we have it. It’s been a tense election of sharp rhetoric, and discourse pondering the future of France. But the second round of voting came and went today. And France has a new President.

Emmanuel Macron – the pro-EU, social liberal-won with a decisive victory over the far-right Marine Le Pen that his supporters hailed as holding back the tide of populism.

Macron, who at 39 becomes the youngest French President since Bonaparte, is a former economy minister who ran as a “neither left nor right” independent. He promise to shake up the French political system, and took 65.1% of the vote to Le Pen’s 34.9%, according to initial projections from early counts. It is a stronger-than-expected victory, and a stunning achievement for a novice to electoral politics – Macron has never been elected to public office before.

The size of the victory margin however does not disguise the fact a section of the French electorate felt disenchantment. Pollsters said between 25%-26% of voters stayed away, meaning turnout at its lowest level for the second round of a French Presidential election since 1969. Among those who did vote, some 12% submitted a blank or other invalid ballot, indicating they did not support either candidate.

Yet the far-right can also take some comfort in its best electoral showing in French history. Although Le Pen fell well short of the presidency, her score is roughly double what her father, party founder Jean-Marie Le Pen, got in the second round in 2002. No doubt the anti-immigration, anti-EU Front National’s supporters will claim that on the back of this performance, the party has a central place as an opposition force in France.

Not too much comfort, however. This win also marks the third consecutive setback for European populist parties who preached a mix of Trump-style nationalism and protectionism to voters fed up with conventional politics. Austria saw pro-European Green Alexander Van der Bellen defeat far-right Norbert Hofer in the country’s Presidental election. To the Netherlands, which saw sitting Prime Minister Mark Rutte’s People’s Party for Freedom and Democracy (VVD) see off far-right Party for Freedom (PVV). France today ultimately decided to opt for politics of hope over hate.

Of course, there are challenges on the horizon. The next test for Macron and Le Pen — as well as the mainstream parties who for the first time failed to get a candidate through to the second round of a Presidential election — is next month’s Parliamentary election. Its outcome will determine whether Macron can translate his strong mandate into enough seats in the National Assembly, and a governing mandate to run France. Macron will have to remember that some of his voters today came from other parties across the political spectrum and turned out not in complete support of his programme, but to stop the Front National.

To win next month’s Parliamentary elections, Macron will have to defy political tradition once more. His own political movement, En Marche, was formed just last year and this will be the first time it has fielded Parliamentary candidates. And, even if Macron wins enough seats in Parliament to lead the government, he will face resistance from unions, a hostile left, and the far-right to his proposed economic reforms.

Challenges and battles lie ahead. Yet tomorrow will seem a little brighter after this result. The far-right once more could not achieve their objectives. Across Europe, the far-right, with its policies of fear and division, did not prevail.

And it will not prevail.

Bill of Rights for NI: why have one?

I have previously written about the student working group on human rights I am a part of. Our main area of focus is on the Bill of Rights for Northern Ireland, as provided for in the Good Friday Agreement 1998.

Our work to date has involved examining the historical context to the proposal of a Bill of Rights for Northern Ireland, and considering the provision for a Bill of Rights within the Good Friday Agreement. I personally have examined and summarised the 2008 submission of the Northern Ireland Human Rights Commission to the Secretary of State for Northern Ireland, and the Joint Committee’s 2011 advice on a Charter of Rights for the island of Ireland. Another participate has summarised the response of the Northern Ireland Office to the Northern Ireland Human Rights Commission 2008 submission. We are currently working on incorporating our research into a report, and we will conclude by submitting our argument that a Bill of Rights for Northern Ireland is necessary, and now is the time to see it realised.

Northern Ireland faces great uncertainty in the wake of Brexit. We are currently experiencing a political vacuum – no agreement was after weeks of talks to form a new Executive after the snap March election, meaning we have no devolved government, and now talks are paused for the snap General Election – with the threat of direct rule looming on the horizon. Given political uncertainty and lack of government, the need to recognise and protect human rights in Northern Ireland is vital.

Many countries have a bill of rights in some form. It has been found that 82% of constitutions drafted between 1788 and 1948 contained some form of human rights protection. This figure increased to 93% between 1949 and 1975. This trend continued throughout the 1980s, and by 1990 onwards, as many countries underwent peace processes and transition towards new constitutional settlements, human rights frameworks became routine. This ‘routine’ was applied to Northern Ireland as it underwent a peace process and constitutional transition in 1998.

A bill of rights is a constitutional document, essentially a list, of the most important rights and freedoms belonging to the citizens of a state. The primary purpose of this document is the provision of rights, and the protection of those rights against infringement, with the bill of rights acting as a type of contract between citizens and the state.

States may opt to enshrine a bill of rights as they recognise there are certain values and principles which are so basic, and so fundamental, they wish to put them beyond the reach of government. Rights such as the right to fair trial are arguably matters to be protected against state interference, irrespective of shifts in the political landscape. Bills of rights therefore aim to separate these fundamental values from politics, and subjective political interpretation.

Adopting a bill of rights also provides for a clearer understanding of the democratic structure of the state, especially with regards to restrictions on political decision-making, and the state’s responsibilities for its citizens. This model emphasises participation, but also ensures a balance between necessary limitation of majority rule – thus preventing any abuses of power – and the encouragement of equal participation of all.

States therefore tend to adopt bills of rights when agreeing upon a new or revised constitution, as part of a peace settlement after a period of internal conflict, and/or as a solution to political, legal or moral pressure to address failures to protect rights.

Bills of rights provide legal recognition and protection of rights to all citizens, but it applies particularly to those within marginalised and vulnerable groups. This is of relevance to Northern Ireland, where human rights issues have been raised in relation to children and women in detention, women accessing reproductive healthcare, equality for the LGBT* community, and the Irish-speaking community. Adopting a Bill of rights would ensure a defense for these communities, and provide legal protection of their rights and redress for violations of same.

A Bill of Rights for Northern Ireland is not a new proposition. Since the 1960s, there have been calls from across the political divide for a Bill of Rights for Northern Ireland. The common argument is a Bill of Rights would provide for a stable, shared society built on equality and non-discrimination. As part of a constitutional foundation, it would ensure no matter who was in power, human rights would be respected.

EU versus UK: pre-negotiations

Last Saturday, the leaders of the 27 remaining EU member states quickly agreed to a negotiating path towards a quick divorce deal with the UK. It is now up to the UK to agree to the guidelines so that the talks can begin. The main delay appears to be the UK election.

Despite the unpromising lead-up to Saturday’s summit in Brussels, including an awkward dinner between European Commission President Jean-Claude Juncker and UK Prime Minister Theresa May, and mutterings about the UK blocking EU budget talks ahead of their elections, the EU27 held out clear prospects of compromise.

However, EU leaders did not appear wholly confident, with concerns mounting that the British Prime Minister still does not grasp how long, complex and difficult the path to agreement will be. The main fear seems to be that even if the Conservatives record a strong victory in next month’s General Election, Mrs May will not be willing to moderate her negotiating positions. Indeed, the converse might be true: bolstered with a strong showing, Mrs May might be more inclined to refuse to engage in compromise efforts.

The European Council’s guidelines  define the framework for negotiations under Art 50 TEU, and set out the overall positions and principles that the Union will pursue throughout the negotiation. The European Council is settling itself down for a bumpy ride, and it is not pulling its punches. In the Core Principles section of the guidelines, it writes:

It reiterates its wish to have the United Kingdom as a close partner in the future. It further reiterates that any agreement with the United Kingdom will have to be based on a balance of rights and obligations, and ensure a level playing field. Preserving the integrity of the Single Market excludes participation based on a sector-by-sector approach. A non-member of the Union, that does not live up to the same obligations as a member, cannot have the same rights and enjoy the same benefits as a member. In this context, the European Council welcomes the recognition by the British Government that the four freedoms of the Single Market are indivisible and that there can be no “cherry picking”. The Union will preserve its autonomy as regards its decision-making as well as the role of the Court of Justice of the European Union.

Basically: the UK cannot boast about a hard Brexit, seek to withdraw itself financially from the EU, but still expect to benefit. After all, you cannot have the benefits of club membership without paying your membership fees.

Under Agreement on arrangements for an orderly withdrawal, the European Council  strongly reiterates citizen’s rights:

The right for every EU citizen, and of his or her family members, to live, to work or to study in any EU Member State is a fundamental aspect of the European Union. Along with other rights provided under EU law, it has shaped the lives and choices of millions of people. Agreeing reciprocal guarantees to safeguard the status and rights derived from EU law at the date of withdrawal of EU and UK citizens, and their families, affected by the United Kingdom’s withdrawal from the Union will be the first priority for the negotiations. Such guarantees must be effective, enforceable, non-discriminatory and comprehensive, including the right to acquire permanent residence after a continuous period of five years of legal residence. Citizens should be able to exercise their rights through smooth and simple administrative procedures.

The European Council also recognised the Northern Ireland/Republic of Ireland quandary, and seeks to limit any potential damage:

The Union has consistently supported the goal of peace and reconciliation enshrined in the Good Friday Agreement in all its parts, and continuing to support and protect the achievements, benefits and commitments of the Peace Process will remain of paramount importance. In view of the unique circumstances on the island of Ireland, flexible and imaginative solutions will be required, including with the aim of avoiding a hard border, while respecting the integrity of the Union legal order. In this context, the Union should also recognise existing bilateral agreements and arrangements between the United Kingdom and Ireland which are compatible with EU law.

Whilst EU law must be recognised and upheld, the EU is willing to be flexible in any final agreement in order to prevent the imposition of a hard border.

Developing the guidelines was the relatively easy part, highlighting as they do the elements all member state agree on: the need to negotiate withdrawal terms before agreement on future relations, and prioritising citizens’ rights, the financial settlement, and border concerns — particularly for Ireland.

However, there is always going to be differences under the surface of the guidelines. And the risk of disagreement among the EU 27 on detailed aspects of the Brexit negotiations is high, largely because the interests of individual countries in the Brexit talks diverge as much as they do on any other issue. A key priority which is subject to different interpretations and interests is citizens’ rights. On the one hand, countries such as Poland and Lithuania are concerned about their own citizens now living and working in the UK. On the other hand, countries such as Spain and Malta have a primary interest in the fate of British retirees who live in those countries, and the related costs for health care and other services.

The European Council has prepped its hand. It put on a strong, unified showing in its swift agreement on the guidelines. But for how long will it stay unified?

Fast forward to this week, and it is the turn of the European Commission to lay down its cards in advance of the forthcoming Brexit negotiations.

The EU’s Brexit negotiator Michel Barnier, presenting the European Commission’s proposed negotiating directives today, said it was wrong to try to make people believe the separation will be a painless process with no impact on people’s lives. He added that it was not the European Commission’s intention to “punish” the UK for leaving the bloc.

He hinted the talks process will be long and complicated, and warned no one should expect a quick deal:

“Some have created the illusion that Brexit would have no material impact on our lives or that negotiations can be concluded quickly and painlessly. This is not the case.

“We need sound solutions, we need legal precision and this will take time.”

Barnier said in order to ensure the talks succeed and agreement is reached, the UK “must put a great deal of energy and effort” into reaching agreement on key three areas: borders (especially between Northern Ireland and the Republic of Ireland), the rights of EU citizens, and the process for calculating a financial settlement.

It was said that the so-called divorce bill – now estimated at €100bn (£84.5bn) -was not a punishment for the UK leaving, but rather a “settling of accounts”.

Barnier made sure to highlight the remaining 27 member states’ show of unity at last weekend’s summit.

It is evident that the looming negotiations will not be straightforward – perhaps much to the displeasure of the British government, especially if time is spent wrangling over the divorce bill. ‘Take Back Control’ must seem like a distant memory, now.

I for one welcome the stance taken by the EU institutions pertaining to the island of Ireland. It is great to see the EU confirm it will attempt to be as flexible as possible when considering the imposition of a border. It certainly makes a change from the endless refrain of “no return to the borders of the past” from the British government…

French Presidential Election: Second Round

I recently wrote the night before the French electorate took to the polls to vote in the first round of the Presidential election. I thought I would write an update post following the outcome of the first round of voting.

As predicted, no candidate won a majority. The pollsters were vindicated. Consequently, a run-off election between the top two candidates, Emmanuel Macron of En Marche! and Marine Le Pen of the National Front will be held on the 7th May 2017.

Macron, a pro-European centrist, took first place with 24.01% of the first round voting, while the anti-immigrant, anti-EU Le Pen came second on 21.30%, according to final results released Monday by the French Interior Ministry. This marks highest-ever voting tally for the National Front party – Le Pen’s advancement to the second round is not without precedent as her father, Jean-Marie Le Pen, made it to a runoff against the then-incumbent Jacques Chirac in 2002.

After their respective eliminations in the first round, both François Fillon and Benoît Hamon called to vote for Emmanuel Macron, while Jean-Luc Mélenchon refused to pronounce in favour of either candidate, preferring to first consult activists from his movement. He has since issued a suggestion that his voters do not vote for Le Pen. Nicolas Dupont-Aignan, however, has since endorsed Le Pen during the evening of 28 April. He was subsequently revealed as her choice for Prime Minister the following day.

The key take-away message? Out with the old, in with the new. France opted to dump its political establishment in a collective spirit of ‘now for something completely different’.

France’s two major parties — the Républicains and the ruling Socialists — were relegated to third and fifth place respectively. The Socialists, who just five years ago controlled every level of the French government, managed to get only over 6% of the vote.

It is the first time since the establishment of the fifth French Republic in 1958 that no candidate from the two main political parties of the left and right has made it into the second round of the Presidential vote.

Evidently, the majority of the French electorate sent a clear signal of their intent to see change. In Macron, they are now also a step away from putting a cosmopolitan, pro-EU, economically liberal non-politician into the Élysée.

Macron goes through to the second round as the clear frontrunner, with most voters expected to switch to him from mainstream defeated candidates. Le Pen, meanwhile, faces an uphill struggle.

Yet… concern remains with Le Pen’s candidacy. It is no surprise that European political leaders, including German ministers, European Commission President Jean-Claude Juncker, and Brexit negotiator Michel Barnier, all broke with tradition, and either congratulated Macron or called on the French to vote for him. Hamon, the Socialist Party candidate, urged his voters to vote for Macron, reminding them that there is a difference between a political rival, and “an enemy of the Republic”.

Going forward, Macron will continue to build on his pro-European, centrist message whilst Le Pen has made it clear she would intensify the nationalist, anti-Islamist rhetoric that propelled her into the second round. Interestingly, the Monday after the first round, she announced she was taking a leave of absence as leader of the National Front party to focus on the election campaign. (Clearly in the hope to appeal to voters with less extremist views.)

And don’t forget, whoever wins will have to work alongside the French Parliament. There’s a big question over whether either candidate is capable of achieving a parliamentary majority when that vote takes place in June.

Today, May Day, saw thousands of people marching in Paris in rival political rallies. Le Pen and Macron held overlapping rallies in the French capital at the same time as nationwide May Day union marches.

Currently, opinion polls are predicting Macron will win around 60% of the vote on Sunday. Le Pen is expected to claim around 40%. The race is on, and it is too early to call.

Brexit and the Bar Council: the Great Paper Debate

I have written a few times about the ongoing uncertainty regarding the outcome of the UK’s referendum on continued membership of the EU, and the legal sector.

Between the issue of whether UK lawyers would be qualified to work in the EU, and UK lawyers thus seeking re-qualification in Ireland, to the issue of the CJEU and whether justice was a priority for the British government during negotiations (it is not, I believe), there constantly have been queries regarding UK law, and how it will operate post-Brexit.

It would seem that the legal sector is growing tired of the lack of official clarification, and wants some certainty restored and answers given.

The Bar Council of England and Wales has said the British government should seek to clarify how it intends to pursue its future relationship with the Court of Justice of the European Union (CJEU), claiming a white paper on its break away from EU law merely ‘scratches the surface’ of the issue. A valid point, as the White Paper has a little section (‘little’ is an appropriate description; it is just four pages long) entitled ‘EU Law in the UK’. Only, it happens to be an annex at the end of the entire White Paper.

In response to the Department for Exiting the EU’s Great Repeal Bill White Paper, the Bar body said domestic courts’ future relationship with the EU will be ‘complex and nuanced’.

For example, the Bar Council said the White Paper does not deal with the possibility of UK courts making references to the CJEU post-Brexit ‘in proceedings concerning a factual situation governed by EU law arising pre-Brexit.’ Conceding this might be considered a ‘rather technical point’, the Bar Council argued whatever provision the Great Repeal Bill makes ‘might not prevent the CJEU from finding other routes to assuming jurisdiction over things taking place in the UK during the period when the treaties remain applicable’.

Moreover, it said there will ‘presumably be a need to provide for the domestic consequences of any dispute-resolution mechanism between the UK and EU appearing in the withdrawal agreement and likewise in any future agreement for the new relationship’.

The Bar Council said it is currently preparing a paper on the CJEU which it says it hopes will provide more opportunity to contribute to the British government’s thinking on matters.

The council added that it is concerned that specific safeguards recommended by the House of Lords Select Committee on the Constitution are not ‘watered down into vaguer ministerial assurances’ and should be clearly written into the text of the bill.

Safeguards proposed include that powers to enact delegated legislation will be used only ‘so far as is necessary to adapt the body of EU law to fit the UK’s domestic framework’ and ‘to implement the result of the UK’s negotiations with the EU’.

 

The Bar Council submitted: ‘…we consider that the white paper could have been clearer on what is or is not to be treated as “EU- derived law” as time progresses and what the approach will be to future changes to EU law which might affect that “EU-derived law” beyond the point of exit from the EU.’

It will be interesting to see what the Bar Council’s paper proposes. No doubt it will be detailed, and will aim to provide more clarity and certainty on the issue. This just goes to show how complex the negotiations will be, and indeed, how unprepared the British government appears to be.

Conservatives and European Convention on Human Rights… Again

Whenever the Conservatives are not falling out over Europe in the form of the European Union, they are falling out over human rights. Merge these two traditional battlegrounds together, and you are left with the European Convention on Human Rights (ECHR). And after the Prime Minster’s sudden announcement of a snap General Election, it should come as no surprise that the ongoing ECHR issue will inevitably feature in some form.

Yes, the Conservatives have a habit of expressing their desire to repeal the Human Rights Act 1998, the legislation which enshrines the Convention into domestic law. They also have a fondness for expressing their deep-rooted hope to see the creation of a British Bill of Rights in place of the 1998 Act. The more daring and extreme will speak too of the UK withdrawing from the European Convention itself.

I have written about all this before, but this once again is of topical relevance since the announcement we shall return to the polls on the 8th June.

Since becoming Prime Minister – back when she kept vowing she would never call an early election – it was reported Mrs May planned to fight the 2020 General Election on a platform of leaving the ECHR. Apparently, the Prime Minister sought to “lift and shift” rights protections so people in the UK could only seek rights protections in UK courts, not the ECtHR.

It was also reported Mrs May “has decided that she cannot start that fight with the prospect of negotiating Britain’s exit from the European Union set to dominate Parliament over the next few years.” Therefore, Conservative plans to replace the 1998 Act with a British Bill of Rights were seemingly put on hold, albeit temporarily, because of the Brexit result. And recall that during her leadership bid, Mrs May said pulling out of the ECHR was not something she could pursue in this Parliamentary mandate because of the Conservative’s slim majority.

So the question becomes this: if Mrs May intended to fight the 2020 General Election on a manifesto pledge to see the withdrawal of the UK from the ECHR, might it feature now, during this snap campaign? Moreover, if Mrs May is calling this early election on the basis of her slim majority and the need for a greater mandate, should she acquire a comfortable majority, would she venture forth and take the UK out of the ECHR?

It would appear I am not the only one querying what might unfold. Theresa May has apparently been urged to commit to staying in the ECHR in the next Parliamentary term, dude to concerns she could try to get a mandate at the election for taking the UK out of the treaty after Brexit. And this comes from within her own party, as some in the liberal wing of the party (yes, such a wing apparently exists in the Conservative party) are worried that Mrs May will be tempted to include leaving the convention in her election manifesto.

After all, her predecessor David Cameron at the last election submitted plans for a British Bill of Rights to restore some sovereignty over human rights whilst remaining within the ECHR. Thus Mrs May now finds herself having to decide whether to proceed with those plans after Brexit, or go even further and withdraw the UK . This was advocated last year by Nick Timothy, her co-chief of staff – who just happens to be heavily involved in drafting the Conservative’s manifesto.

I wrote only a few months ago:

Yet, it was suggested the drafting and implementation of a British Bill of Rights is now unlikely to happen at all due to concerns that Mrs May would face a rebellion by Conservative MPs. And as previously outlined, all it would take is a small band of backbench Conservative rebels to cause trouble, given Mrs May’s slim majority in the Commons.

Of course, the Prime Minister could call for a snap election in an attempt to boost her majority. Whilst this is unlikely, it is not completely so: British Labour is struggling in the polls, and as the UK Supreme Court recently ruled the UK Parliament must be granted a vote on Art 50, Mrs May might think it better to increase her majority now for an easier life in the long run.

At this point, after so many ups and downs in politics and a never-ending stream of elections, I will say this: never say never. I would not be surprised if Mrs May, intent on pursuing a hard Brexit, might go further and not only oversee the UK withdrawing from the EU, but perhaps the ECHR as well.

Human rights working group – Bill of Rights for Northern Ireland.

For the past couple of months, a group of QUB students, including myself, have been part of a working group on human rights in Northern Ireland. We are focusing particularly on the need for a Bill of Rights in Northern Ireland, as provided for in the Good Friday Agreement 1998.

The Good Friday Agreement 1998 included the commitment that the upon the establishment of a Northern Ireland Human Rights Commission, it would be asked:

“…to consult and to advice on the scope for defining, in Westminster legislation, rights supplementary to those in the ECHR, to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experiences. These additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and – taken together with the ECHR – to constitute a Bill of Rights for Northern Ireland.”

This commitment was subsequently reflected in the Northern Ireland Act 1998.

As the 19th anniversary of the Agreement recently came and went  against a backdrop of continued political stalemate and inertia, we feel it is time for the Bill of Rights to be prioritised.

A Bill of Rights for Northern Ireland, which would take into account the particular circumstances of Northern Ireland, would ensure legal recognition and protection of the human rights of all our citizens. Human rights has become topical here since the very announcement of the March election, let alone after the smoke cleared and the parties sought to interpret the results delivered by the electorate. As the political situation rumbles on, with legacy cases and Irish key issues, and as the outcome of Brexit remains uncertain, it is time for a Bill of Rights to be realised for the benefit of all.

Bills of rights provide legal recognition and protection of rights to all citizens, but it applies particularly to those within marginalised and vulnerable groups. This is of relevance to Northern Ireland, where human rights issues have been raised in relation to children and women in detention, women accessing reproductive healthcare, equality for the LGBT* community, and the Irish-speaking community. Adopting a Bill of rights would ensure a defense for these communities, and provide legal protection of their rights and redress for violations of same.

A Bill of Rights for Northern Ireland is not a new proposition. Since the 1960s, there have been calls from across the political divide for a Bill of Rights for Northern Ireland. The common argument is a Bill of Rights would provide for a stable, shared society built on equality and non-discrimination. As part of a constitutional foundation, it would ensure no matter who was in power, human rights would be respected.

It’s been an utter pleasure to work with fellow students on human rights in NI, and I am looking forward to our future work!

We have written a blog post for Rights NI, an online platform for the discussion of human-rights based issues, entitled ‘QUB student working group calls for renewed consideration of NI Bill of Rights‘.

We are currently working on a report which will merge together our individial research and research papers on the subject. It will ultimately conclude that it is time for a Bill of Rights to be realised and implemented.

I am tasked with overseeing the report, and have spent the a couple of evenings after work merging the documents together. It has been fascinating work, and I cannot wait to see where we end up.