Monday, 7 May 2018

Numbers.

There was a demonstration on Saturday. Depending on who you listen to it was attended by somewhere between 10,000 and 90,000 nationalists. On any view a lot of nationalists. Having declined to put a single leadership figure on the platform for the rally which followed, towards the end of the event, the First Minister panicked and, believing the attendance to be nearer the latter than the former figure, sent, as a tweet, a single thumbs up.

And, do you know what, I really wasn't interested.

There is not going to be a second independence referendum any time soon. The constitutional position is clear, It requires the agreement of the UK Government and the UK Government isn't going to agree.

So, any attempt at such a vote will come to grief in the Supreme Court . And any attempt to defy the Supreme Court has a ready example of the former Catalan Education Minister fighting for her liberty in a different country a thousand miles away. Whilst in the meantime Catalan education policy is being run from Madrid. And nobody, even in Catalonia, seems to be that bothered about it.

But anyway, the whole, All behind a Fascist Banner event was just so much yesterday's politics. In reality, the only game in town, for the moment, is Brexit.

And the key players in that are the two brexiteers, Corbyn and Rees-Mogg.

To get a sensible deal, The Prime Minister needs a Commons majority and both are determined to deny her that. The second at least because he genuinely believes in the long term benefit of a year zero approach.

The motivation of the former however is more difficult to work out. Sure, he is no Europhile but I suspect it is also because he is, frankly, not very bright.

He simply hasn't worked out that there are no conceivable circumstances in which failure to get a Brexit deal would bring down the Government. That is because of the terms of the Fixed Term Parliaments Act. There are, from time to time, demands, from one or other of side of the great Tory European schism, for votes on the Brexit legislation to made "confidence votes". But this is the constitutional politics of a different age. If May was to lose a vote on a critical part of this legislation, the Government would not fall. She could toddle along to the Palace the next day and ask the Queen for a dissolution but that would be refused. Because the only circumstance in which a UK General Election would take place before June 2022 is if either the House of Commons passed a vote expressly declaring it had no confidence in the current Government (not incidentally to something else but in these specific terms) or if a two thirds majority voted for an early election. (As happened last year).

Now, are either of these things likely, even conceivable, particularly after the Tory experience last year? Are there really any circumstances in which the Tories would take even the remote risk of Corbyn becoming Prime Minister? Or at best of the Commons arithmetic potentially becoming even more chaotic? The answer to that is no. And that's the calculation of the 60 or so hard core eurosceptics in the Tory ranks. They think they can vote down any attempt by May to reach a compromise in the knowledge that "their" Government would survive and indeed a chaotic, no deal, Brexit be the outcome resulting. Precisely their desired outcome.

And, unless something changes, they are not wrong.

So, something has to change. And the change has to be on our side.

Britain joined the EU by virtue of the European Communities Act 1972. But the then Prime Minister, Ted Heath, did not have a Commons majority within his own Party for that legislation. It passed because 69 Labour MPs, including John Smith, defied an opportunist Labour leadership of a different political stripe to get the Bill through.

On continued membership of the Customs Union, at least, Labour back-benchers should, in the national interest, to be willing to offer the Government support. As should the Lib Dems. The detail would need negotiating but surely one of the pro European Tories could be recruited to that role. And if, in its aftermath, Rees-Mogg and his crew want to go through the division lobbies with John McDonnell and Diane Abbott to bring down their own Government? I'd believe that when I saw it.

Time the tail stopped wagging the dog.

And time we, on our side, stopped thinking politics is a game.

Sunday, 1 April 2018

La Primavera

About twenty years ago, Maureen and I decided we would go to Puglia, in the heel of Italy, for a week's Easter holiday.

The weather at home had been foul and we had both been working exceptionally hard without a break since Christmas, so by the time the holiday arrived we were more than ready for it.

There  was only one problem. It depended on a flight from Stansted to Bari early on the first Saturday of Holy Week and there was no way, that morning, to get from Scotland to Stansted in time. Indeed, since this was the first day of the holidays, there wasn't even a flight the evening before.

So we had no alternative but to drive through the night.

On my last working day everything that could go wrong went wrong and by the time I arrived home about seven o'clock my stress levels were already off the scale, never mind that in but a couple of hours I was faced with an at least six hour drive South.

But needs must and with the assistance of copious amounts of coffee, at about ten, we set off.

The rain was falling in Biblical quantities and the radio informed us this was unlikely to abate. By the time we were on the A66 and had had just about our fill of Whispering Bob Harris on Radio 2, the news bulletins were conveying police advice not to travel unless your journey was essential. But of course our journey was essential. So we pressed on.

Somewhere near Sheffield matters had got so bad that the motorway was closed by flooding and we were sent off in an interminable diversion, during which, for the first time, the thought arose that we might not get to the airport on time. Back on the A1, making the best time we could, that thought became increasingly a fear.

Still we went on. For some reason, possibly folk memory of its most famous citizen, Grantham seemed to be signposted for hours without ever getting noticeably nearer. And then, even when it passed our eventual destination seemed just as far away as ever.

All intention of stopping for a break had long been abandoned. Rain from the heavens fell torrentially but by this time was a minor irritation compared to spray and worse from the road. The "do not travel" radio warnings became ever more imperative.

We made it with less than an hour to spare. Parked the car and made the terminal, pausing only to get personally soaked to the skin in the process.

Exhausted was an inadequate word for our condition but we nonetheless boarded the plane.

Three hours later we were in the mezzogiorno.

It was still early Spring and relatively early morning at that, so the temperature was not yet the baking heat of high Summer but there was not a cloud in the sky and the Sun was shining in its full glory.

Bari Airport is to the north of the city so you initially travel south on a superstrada that takes you through the suburbs, albeit lined on both sides with Bouganville already in flower. Once you leave that urban sprawl however the road bends towards the coast and suddenly it rises and turns and you see the crystal clear blue of the Adriatic for the first time.

It was, quite literally, like a shot to the heart.

We carried on to Monopoli, where we had been before, and where we planned to lunch.

It was still to early for that so we parked and "took" a cafe and then wandered the streets of the old town.

Monopoli is a quite beautiful place, even in some of its modern parts, where it boasts a Scuola Materna dedicated to the great Anita Garibaldi, who died beside her husband while fleeing fallen Rome for surviving Venice after the failure of the rebellion of 1848. But the old town is yet more special. A Romanesque Church (what else!) a beautiful port with a small sandy beach and lanes and by ways leading everywhere and nowhere. All with the sun getting ever warmer and the sky ever clearer.

By now it was lunchtime.

We had intended to eat in the Trattoria Pierino l'Inglese  where we had eaten, exceptionally well, on our previous visit to the town (Not being Nationalists, we had no objection to its antecedents). But it was full!  And thus we fell upon the Trattoria del Porto.

One street back from the Port, it had an arched ceiling that marked it out as a one time wine cellar. It was busy but not to the degree that a table could not be found. Wine, water and bread appeared alongside the menu which we studied indecisively until the padrone appeared to take our order. "I would recommend the antipasto" was his counsel. So we agreed , together with a basic pasta dish to follow. Never has advice been so wisely accepted.

What followed was simply exceptional, Not just insalata di mare, which is kind of what we expected, but dish after dish after dish. Mussels in brodo certainly but also baked, unscraped of seaweed, in the oven. Polpo. Carpaccio di Pesce Spada! (cured raw Swordfish). Prawns, grilled and fresh. A flan, also with seafood. Sea urchins, sliced in half and to be scooped out raw. Calamari, both deep fried in batter and grilled. It just kept coming.

And as it did you slowly realised something. This was not "just" an antipasto, it was a Mezze. The Greek tradition of ever more and more small dishes until the guest cries enough.

And its origin? Well, you see, today, Puglia might be a part of Italy but before that it was part of "Magna Graecia", Greater Greece. I say before but in fact it was two thousand years before. Nonetheless, here, in the Trattoria del Porto, that folk memory had survived.

We struggled, if I'm being honest, to finish the traditional pasta dish which followed. And speedily declined the offer of a "secondo" of grilled fish. But we did have a sweet. Panna cotta. (My friends will know that if there is Panna cotta, then I will have Panna cotta).

But then something strange happened. Something I remember as much as the meal itself. I started to cry. And I couldn't stop. The Padrone noticed and, having been reassured it was not the fault of his food, inquired (of Maureen, in Italian) if I might perhaps have had a recent bereavement. I hadn't. And I wasn't crying tears of grief. I was crying tears of joy.

For Spring had come in one day.

Happy Easter.





Thursday, 22 March 2018

Tides

Although it might be a surprise to some of the newer members of my Party, in a democracy the purpose of political Parties is to win elections.

At the first by-election in which I was heavily involved, Glasgow Garscadden 1978, I encountered for the first time, the wonders of what was known as the "Reading System" so called because it had first been developed by Reading Constituency Labour Party to win that very seat at the 1945 General Election.

Now, the Reading system, primitive as it now appears, was all about data. As activists of all colours will know, contrary to the impression perhaps of the general public, canvassing on the doorstep or in more modern times over the phone, is not intended to persuade people to vote for you. No, it is intended to find out how these people are already intending to vote and then to make use of that information to best advantage. Back in 1978 that was essentially in one way, by maximising the chances of getting your voters to the actual polling stations on the due day. And that was where the Reading system came into its own.

For canvas results were collated and then marked up onto many layered street by street duplicate pads (known as Mikardo sheets in honour of our 1945 candidate) which by polling day morning had been pinned or stuck to pasting tables in the committee rooms. "Numbertakers" were then dispatched to the polling stations with the sole purpose of asking for the polling card numbers or names of those voting and that information then conveyed back to the committee rooms where the names of those Labour voters "already voted" could be scored off the sheets.

So, when the knock up teams went out to remind people to vote and/or assist them to the polls these voters could be by-passed, making maximum use of limited personnel resources. The knock up teams could also feed back voters who, on the doorstep, claimed to have voted unrecorded at the polling station, again refining the targets for a "second knock up" (and making sure you weren't annoying people by repeatedly knocking their door).

It was very homespun technology but for its time it was state of the art. So much so that the Tories quickly realised that imitation was the best form of flattery and developed a pretty similar system of their own.

For the best use of the technology of the time, whether to "Get out the vote" or persuade the public in a particular direction has always been used by political parties.

I give but a few brief examples. The first, targeted mail. The masters of this seem to me initially to have been the Liberals. Traditional canvassing created data not just about which people were voting for your own Party but also about their voting intention if they were not. This latter information was of limited use to the two big Parties but it provided an opportunity for the one in the middle. In a "safe" Tory seat, where the Libs were second, knowing the identity of intended Labour voters could be used to turn base metal data into gold. These voters could be targeted with the message "only the Libs (Lib/Dems) can beat the Tories here", initially with little more than one of their famous/infamous "Bar chart" leaflets but as the coming computer age allowed, increasingly with personally addressed and delivered communications. To be fair, the Libs were ecumenical in this, in that they applied exactly the same technique to Tory voters in "safe" Labour seats.

Next, advertising. Political Parties had used advertising agencies to limited degree since the 1950s but in 1979, with the engagement of Saatchi & Saatchi, the Tories took this to a completely new level. Their "Labour isn't working" posters scar my memory to this day but the passage of time lets me realise that my annoyance with them was based entirely on their undoubted effectiveness.

Then, the use of the Party Political Broadcast. "Forever" these had been little more than talking heads, talking up the merits of the producing Party and in passing the iniquitousness of their opponents. In 1987, Labour changed the game with "Kinnock: The Movie", boasting state of the art cinematography, directed by a top Holywood director, talking about our candidate for Prime Minister as something more than a politician and, for a few days at least, transforming what appeared like a foregone conclusion into a real contest.

But what, including the Reading system, do these four examples have in common? Their opponents,  at the time, thought them "unfair".

I'm sure, were he still in the land of the living, the Tory agent in Reading would complain that interfering with the inclination of the voter to vote, or not to vote, at their discretion, was "not cricket". Although both Labour and Tory modern digital equivalents, Contact Creator and VoteSource respectively are both truly grandchildren of Reading.

I am certain that both big Parties thought the Libs Bar charts misleading, or at least not in keeping with the spirit of a first past the post Electoral system. Indeed we still do, although both of us now use targeted mail in a far more sophisticated manner than its pioneers ever envisaged.

I am equally certain that Labour's advertising strategy, after the disastrous first try of 1983's "Think Positive, Act Positive, Vote Labour", is now based on our advertisers being better than their advertisers. Rather than that professional advertising expertise is per se a bad thing. (As was undoubtedly our 1979 response, for I was there).

And finally, the Tories rejoinder to "Kinnock: The Movie"? Ultimately it was the equally effective "John Major: Brixton boy", five years later. Scratch equally effective, for they won. Handing me the most miserable night of my political life.

So, to Cambridge Analytica.

Is this not just history repeating itself?

Obama for America was a joyous thing but its very progenitors would concede the importance of the then relatively early impact of social media in making it so. In every State, across every demographic group, streamed coverage of those wonderful early speeches were used to give rise to any number of "........... for Obama" online communities to get activists engaged for what was then, still, largely on the (terrestial) ground activity. By re-election day in 2012, the same team were boasting of their intention to fight the most micro data campaign ever. Which they then did. Online data was now king and people who understood data were overwhelmingly young and edgy and.....lefty. So the future was ours.

And less than a year ago, the surprise outcome of the UK General Election was ascribed specifically to the by passing of the "main stream media" to deliver a (literally) revolutionary message online, entirely unseen until the polls closed. Although we shouldn't lose sight that we still lost.

But that was all fair because "we" did it. When however precisely the same techniques were employed by our bitterest opponents, Trump and Leave UK, well, obviously, that must have been "unfair" in some way.

Except was it? I have struggled, in the wall of coverage, to find any actual accusation of specific illegality, as opposed to exploitation of inadequate regulation.  There are lots of implications of links to "fake news" but no actual evidence of it. The one really dodgy thing, the suggestions of "honey traps" and blackmail, is the one aspect of the whole thing that has no link to the internet at all, and is hardly news to anybody who has seen the Godfather Part 2. Which is where I suspect the big talking Mr Nix got his inspiration. Mainly the coverage consists of a complaint that no properly informed people could possibly have voted for Trump or Brexit so "something" must be up.

But maybe what was up was people rejecting the status quo. The failure of a metropolitan middle class elite (me included) to appreciate that "the system" had failed too many people who felt it was due a kicking for that failure. An earlier failure to defend what we saw as that system's self evident merits against an encroaching tide of "nothing could be worse" fuelled by little more than ignorance.

And if our opponents found a tool, within the rules, to refine and target and give voice to that rejectionist sentiment?

Labour did not win Reading in 1945 just because of our superior get out the vote strategy any more than the Tories won in 1979 just because of their superior advertising. Each victory actually depended on seizing the tide of history.

Maybe my team should stop getting madder and madder amongst ourselves about contests lost and instead start to think how we might, in future contests, get even. 

To accept that our losses were not down to the illegality of our opponents tactics as to, for the moment, the inadequacy of our own.

To start, once again, to catch the tide of history.






Friday, 2 March 2018

Not what it appears

As you may have noticed, there has been quite a lot of snow.

As a result I've been unable to get to my work but it has given me the opportunity to write a blog about a matter of some considerable importance as a reminder that one should never take anything done by the SNP at face value. No matter what they claim to be upto they in reality are only ever up to one thing. Trying to advance the cause of independence.

As you may also have noticed, a year past in June we had a referendum in which the Country voted to leave the European Union. I'm not commenting here on the merits of that decision, my views on it are well known, but rather on its legal consequence.

Currently, Scotland has four sources of law. I set them out in order of introduction.

1.The common law Best example being that murder is a crime without it ever have been declared to be so by any Parliament.

2. UK Statute Law and secondary legislation flowing from Statute Law. Not just in areas outwith devolved competence such as the Employment Rights Act 1996 but also in relation to matters now within devolved competence but on which the law has remained unchanged since the creation of the Scottish Parliament in 1999, such as the Family Law (Scotland) Act 1985.*

3. Scottish Statute Law and secondary legislation passed or authorised by the Holyrood Parliament.

and

4. European Community Law with direct applicability in the UK.

It is this last which so infuriates (some of) the Brexiteers. For it can mean that we have no say (or more precisely no veto) over "our" laws.

But even Jacob Rees-Mogg does not not want EU Law to disappear overnight. He is an improbable anarchist.

Existing EU law is for the vast part both uncontroversial and necessary, setting out commercial rules and standards that would be required in any advanced democracy. So, while Brexit will provide the future opportunity to amend or even repeal these laws, no-one's interest is served by the emergence of a legal vacuum on 29th March 2019. EU Law must therefor be carried forward on that date and Westminster is proposing to do that by means of the European Union (Withdrawal) Bill, currently proceeding through that Parliament.

But, of course, matters are not as simple as that.

And here we must first go off on a wee legal detour.

Our devolution settlement proceeds under the Scotland Act 1998 (as subsequently amended). And ,under that Act, Holyrood, subject to certain other restrictions, the importance of which I will come to, can legislate on any matter not "reserved" to Westminster. Except that when the Scottish Parliament was created in 1999 no-one contemplated that the UK would ever (be daft enough to) leave the EU. So there was no need to "reserve" to Westminster matters on which Westminster had delegated to Strasbourg. 111 such matters it appears. Thanks to a helpful list drawn up no one less than Nicola Sturgeon herself. https://inews.co.uk/news/politics/full-111-eu-powers-scotland-says-denied/

Now, if you are I were so inclined, you might think that Westminster, in preference to Holyrood, legislating about the "Energy Performance of Buildings Directive" is a matter about which a woman, even a woman with grievance as her middle name, would find it difficult about which to become outraged. Particularly as (insofar as she knew about it all) she'd been quite happy to share decision making on the subject with 27 other Countries for nearly twenty years without objection. But of course this wasn't about sharing decision making with 27 Countries but with "them" (copyright Angus Brendan McNeil). "Best of all, 27/28 Countries make decisions together. Worst of all, 2 Countries do". (Apologies to Wales and Northern Ireland).

So, in summary, the position of the SNP is that these decisions should be made anywhere except at Westminster.

But they have been facilitated by the ham fisted way the UK Government has gone about this in their withdrawal Bill. Clause 11(1) of that Bill currently reads

11 Retaining EU restrictions in devolution legislation etc. 

(1) In section 29 of the Scotland Act 1998 (legislative competence of the Scottish Parliament)— 

(a) in subsection (2)(d) (no competence for Scottish Parliament to legislate incompatibly with EU law) for “with EU law” substitute “in breach of the restriction in subsection (4A)”, and

(b) after subsection (4) insert— 

“(4A) Subject to subsections (4B) and (4C), an Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, retained EU law. 

(4B) Subsection (4A) does not apply so far as the modification would, immediately before exit day, have been within the legislative competence of the Scottish Parliament. 

(4C) Subsection (4A) also does not apply so far as Her Majesty may by Order in Council provide.”


Now, just to explain, if this becomes the final version of the Bill, its effect is that although these 111 matters are not reserved to Westminster, Holyrood would be prevented from changing "inherited law" in any way, while Westminster could do so at a whim, under the principle that power devolved is still power retained.

And nobody at Holyrood is very happy about that, including, importantly, the Scottish Tories.

So, the UK Government has committed itself to re-framing  Clause 11 by House of Lords Amendments and has, behind closed doors, been discussing with Mike Russell, the Scottish Government's Brexit Minister, what changes might be made.

That's where we had got to on Tuesday when Russell suddenly announced he was bringing in his own "Continuity Bill".

Now, to say this was a surprise would be a considerable understatement. The Scottish Government/UK Government talks have not broken down. Indeed Russell has not even withdrawn from them. There is no particular urgency (a point again to which I will return), since we are not leaving the EU for at least a full year and any transitional arrangement need only be in place by then.

That notwithstanding, Russell also announced that this legislation was to be forced through Holyrood  under "Emergency Procedure" in less than a month, rather than the nine month or so it takes for an "ordinary" Government Bill to proceed to a conclusion. A timescale, you will note, which would still be concluded well before 29th March 2019.

And finally, the Bill is of, to put it mildly, dubious legal competence, since it is incompatible with current EU law and Section 29 of the current Scotland Act reads:-

"(1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outwith the legslative competence of the Parliament

 (2) A provision is outside that competence so far as any of the following paragraphs apply.......

  (d) it is incompatible with any of the Convention rights or with EU law....."

(my emphasis).

Now that the Bill is incompatible with current EU Law is not disputed on any side. The view of the Lord Advocate is however that, since it expressly won't have effect until the UK leaves the EU, it can still currently proceed. Although again, why then it needs to proceed as emergency legislation is  point on which he has been strangely silent.

In any event, this argument is, as we lawyers put it "pish".

It tries to draw authority from para 130 of the Supreme Court's ruling in the (Gina) Miller case.

Presumably the Lord Advocate sailed on assuming MSPs would think that "He's the Lord Advocate, he must know what he's doing". And, to be fair, excepting Adam Tomkins, he might have a point. But he doesn't.

Here is Para 130 in full.

130. Accordingly, the devolved legislatures do not have a parallel legislative competence in relation to withdrawal from the European Union. The EU constraints are a means by which the UK Parliament and government make sure that the devolved democratic institutions do not place the United Kingdom in breach of its EU law obligations. The removal of the EU constraints on withdrawal from the EU Treaties will alter the competence of the devolved institutions unless new legislative constraints are introduced. In the absence of such new restraints, withdrawal from the EU will enhance the devolved competence. We consider the effect of the alteration of competence in our discussion of the Sewel Convention in paras 136 to 151 below. 

I have underlined the sentence on which he relies, suggesting it implies Section 29(2)(d) constraint on the Scottish Parliament will automatically expire on the day we leave the EU. This is simply nonsense. There is no precedent at all, ever, for words "disappearing" from a statute as a result of an external event but just so you are in no doubt about it, firstly, have a look at (the first two sentences of) Para132 of the same judgement and indeed refer back to the current terms of Clause 11 of the Withdrawal Bill I quote above. Which does provisionally but expressly repeal clause 29(2)(d). But only at the point the UK leaves the EU.

By the logic of the Lord Advocate's position, if the Scottish Government introduced a Bill to raise a standing army but qualified it by saying this would only come into effect once Scotland was independent, then everything would be hunky dory. Aye, right.

Anyway, enough of this because the Lord Advocate is, I suspect, a pretty isolated legal voice in this matter. As he was when he last lost unanimously in the Supreme Court.

For I must now go off on a different but important wee legal detour.

The Footway Parking and Double Parking (Scotland) Bill 2015.

In March 2015, the SNP backbencher, Sandra White, introduced a Bill at Holyrood with cross Party support to do what it said on the tin. Regulate footway parking and double parking. This was a meretricious measure particularly sought by the visually impaired. There was only one problem with it. It was beyond the (then) legal competence of the Scottish Parliament, because it proposed to legislate in the area of a reserved matter, that reserved matter being Part 1 of the Road Traffic Act 1988. (Pay attention at the back there.) Not in the opinion of some terrible anti devolution Tory, but in the opinion of the then Presiding Officer,  Tricia Marwick. Just about as "of the Purple" as any Scottish Nationalist has ever been.

Now, you may be surprised to hear this, I'm a bit of a nerd when it comes to the statutory framework of the Scottish Parliament. Yet before this episode I had believed that, to introduce a Bill to the Scottish Parliament, you needed two certificates. A statement from the introducer and a statement from the Presiding Officer. Both to the effect that the Bill was within legislative competence. Otherwise the game was a bogey.

Only you don't. The introducer must certainly make that statement but in fact the Presiding Officer must only express an opinion. If it is a negative opinion but the introducer carries on regardless "nothing" immediately can be done. That "nothing" may also become important in due course.

Anyway, Ms White's Bill went on to Committee where it was kicked about for a few months, mainly discussing how it might be amended to become competent, until it fell with the 2016 election. And by the time everybody came back, the, Westminster,  Scotland Act 2016 had made it, when re-introduced, competent.

But something quite important had happened in the meantime. It had become clear that a Bill beyond the legislative competence of the Scottish Parliament could nonetheless progress. For a bit at least.

Anybody still awake?

Hopefully this will wake you up. INDYREF2!!!

Stick with me, I'm slowly getting to the point.

If you Google search "Nicola Sturgeon calls for second independence referendum" you can find a result for just about every month since May 2015, although to be fair a good number of these link only to articles written by over excitable "National" columnists.

But we forget that in March 2017, less than a year ago, she really did do so. Within days, Theresa May told her to f.... go away in respect of gaining legislative consent from Westminster. Whereupon Nicola said she was considering her next move over Easter.

Except, over Easter, the self same Theresa May called a General Election. With the Scottish result we all know. Or, possibly, if you don't know, may finally make you realise that you have stumbled into reading a blog which really isn't intended for you.

So let's go back to what Nicola's next move might have been?

Might she have introduced a Holyrood Bill for a referendum without Westminster's consent?

Well, you see, that's where Sandra White re-emerges as a significant figure. Nobody, even in the SNP, would regard Ms White as the Brain of Britain. Or even, honestly, the Brain of Scotland. Or, even more honestly still, the Brain of her own street. One doubts very much if she could have mustered a counter argument to the Presiding Officer's legal objection to her Bill. Indeed, detailed consideration of the Bill's Committee proceedings leaves you in little doubt on that matter. (The sacrifices I make on my reader's behalf).

But I quite strongly suspect that others saw the path she had inadvertently laid.

So let's assume Ms White's Bill had passed through Stage 3 and become the intended law of Scotland. What would have happened then? Well, firstly, within the next four weeks, the Secretary of State for Scotland could have referred it to the Supreme Court. Where it would have died a pretty immediate death.

But suppose the Secretary of State couldn't be bothered? Or indeed publicly  sympathised with the (now) Act's objectives and saw no reason to intervene? Well some random punter, leaving the football and finding themselves with a ticket for parking on the pavement contrary to the Act would have refused to pay. As his penalty was "beyond the competence of the Scottish Parliament". And eventually the Courts would have supported him in that. That's how the rule of law works.

But, from a political perspective, all of this would have been post legislation. And that's where I (finally you say) start to reach some conclusions.

There is a lot of internal pressure on Nicola to hold a second Independence Referendum. Those in her closest circle know the dangers of that. No polling suggests that Scotland wants such an event, let alone that the Nationalists would win it. But the SNP rank and file are a different matter. If you go back to the 111 powers I refer to above, one of them is the regulation of organ donation. Hardly a matter you or I might worry about, except to ensure it was regulated sensibly by somebody. But not so to the cybernat who intervened to suggest regulation must remain in Scotland to ensure his organs were never donated to an Englishman. And in that he spoke for a fair number of Nicola's foot soldiers.

So, Nicola is under a lot of pressure on this. So knowing how far she might get with this before being "stopped against her will" would be a matter of relief. With a trial run a bonus.

And that, in truth, is what this week has been about. Can the Scottish Government run "legislation" through all it's stages at Holyrood until it is referred, post stage 3, to the Supreme Court? And what can they get away with meantime?

So, I'm going to start with my second question.

There is no conceivable interpretation of the word "emergency" which makes providing for events thirteen months away an emergency. Except until you consider the definition of emergency in the Standing Orders of the Scottish Parliament. For in terms of these Standing Orders (9.21) anything certified by a Minister to be an emergency becomes one if it is supported by a simple majority in the Scottish Parliament. And legislation can then be passed in a day. Although even Mike Russell proposes three weeks in this case.

So, can the word "emergency" be self defined by the Scottish Government and not be subject to judicial review so long as it complies with the Standing Orders? Wouldn't that be interesting to know?

And then return to my first. Could the certification of a Bill as within legislative competence by a Minister, even in bad faith,  also not be subject to judicial review?  Wouldn't that also be interesting to know?

Particularly if an adverse consequence brought no personal liability in costs.

So, in summary, Russell's Bill is going nowhere. Not least because there will be a deal on Clause 11 in the meantime. That's not it's purpose. It's purpose is to set precedents or learn lessons on the way.

Because if you wanted to try and force through a Bill for a second Independence Referendum in a month ("as an emergency") and then risk it all, without interruption, on a single turn of pitch and toss in the Supreme Court, wouldn't it be convenient to know in advance how you might get on in that process?

That's all. Enjoy the weekend.

Saturday, 20 January 2018

Decisions, decisions, decisions.

I want to  start by saying something that might surprise you. I am in favour of the decision to close Ward 15 (the Children's Ward) at the Royal Alexandra Hospital in Paisley.

And here is why.

The standard of hospital medical treatment is not, can never be, the same across the whole of the NHS. It depends on the number and qualification of the medical staff available and inevitably in busier metropolitan areas these staff are more numerous and the possibility of sub-specialism much more readily available. The larger the unit therefor the greater the level of expertise and experience available and with that the greater the prospect of expeditious and successful treatment.

Further, the quality of all medical professionals is not the same and inevitably the very best are inclined to be attracted to where they will enjoy the greatest variety of medical experience. Again creating a virtuous circle where the best treatment is inclined to be in the larger hospitals.

Further still, the constant interaction between the university based medical schools and the hospital sector makes working in a hospital near to such a university a much more attractive proposition for those providing teaching as well as treatment, as well as for those still engaged in professional development.

And finally, when it comes to the quality of life, working with more colleagues and being able to draw on their expertise is in itself a significant stress reducer. Not to mention the greater flexibility likely to be available when wanting a holiday. But, outwith work, basing yourself where you can work until 6.30 and still get to the opera or the theatre is a consideration all of its own. So if you are at the top of the profession, with skills in demand and the opportunity to make a choice then the choice is obvious.

Thus, as a general rule, medical expertise is greater and treatment likely to be superior in the cities.

At the back of our minds we all recognise that but we also recognise that in where we are treated the system makes a trade for our own convenience. If hospitalised we might, indeed often do, prefer to be treated where we can easily be visited by friends and family and readily and easily get back home when our treatment is concluded. That's why not all hospitals are in the cities, even in urban Scotland.

But of course that's not always possible. Some illnesses or conditions are sufficiently complex but relatively rare to preclude the maintenance of local expertise and to require the creation of National or regional specialist units to which, like it or lump it, the patient requires to travel.

And it is not at all unreasonable to class children sufficiently ill as to require hospitalisation as falling into that rare or complex category. Particularly as the hospital to which Paisley's juvenile patients will now be referred, The Royal Hospital for Children in Govan, Glasgow, is, frankly, no great distance from Paisley and indeed for patients from the north and east of the town, if not nearer as the crow flies then certainly quicker to get to at certain times of the day when otherwise you would require to negotiate the centre of Paisley.

And the geography is hardly unprecedented. It is eight miles from my home town, Paisley, to the hospital. My new home, Kilsyth, hardly in the middle of nowhere, is twelve miles from our nearest general hospital, Monklands, without anybody locally being noticeably outraged by that. Our nearest Lanarkshire Health Board children's ward is in Wishaw!

So why all the fuss?

Because the decision making over the RAH is indicative of something much more concerning in Scottish public life under the SNP, an unwillingness to be honest with the electorate. To be honest about difficult decisions for fear of offending.......somebody. "Rumours" about the possibility of the ward closing have been circulating for more than two years but the response of the SNP until yesterday, not just locally but in a now notorious television appearance by the First Minister herself,  has been simply to deny the very possibility. Accusing opposition politicians raising concerns of, using that all purpose nationalist response, "scaremongering".

The problem for them is that this is a strategy that eventually falls foul of time. The outrage over the closure will inevitably be much greater now than if an honest case had been made for it earlier in much the manner described above by..........me. As it is going to be over a similar exercise still going on over the eventual permanent closure of the children's ward at St John's Hospital in Livingston.

But this is only indicative of a wider stasis in our devolved public services. Consider education. There is a widespread acceptance that something needs to be done but doing anything will inevitably upset somebody, I suspect indeed a good deal more somebodies than the local Paisley campaigners. So the response has been little more than the wringing of hands.

Take fracking. They could pass legislation blocking this permanently but in doing so cause significant damage to the Scottish economy possibly paving the way for the departure of our biggest single site employer. Or they could allow it, outraging their more luddite supporters and perhaps even causing discrete noises of disapproval from their not quite totally owned minor Party allies. So instead they have announced a permanent moratorium clearly in the hope that the judicial review now launched by Ineos will get them off a hook of their own creation.

Or taxation. They could stick with UK levels ("while we remain without the full levers") on a point of principle or they could raise taxes to sufficient effect as to provide meaningful additional public spending. Instead they've done neither. Bringing in negligible additional income (less than £200 million against expenditure of more than £32 billion) with tinkering aimed at little more than making us "different" from England.

Why this timidity on all these fronts and, perhaps most appallingly, on the example I conclude with?

Because the SNP are in reality two things at once. Certainly they are the government of Scotland but they are also a permanent campaign for Scottish Independence. And that latter function depends on the maintenance, indeed the expansion, of the fragile "Yes coalition" that has got them (to their mind at least) close to their ultimate goal. But the danger of alienating anybody as a supporter of the SNP is that you also offend them as a supporter of independence. And decisions of any sort inevitably offend somebody.

Yet sometimes decisions have to be made as they ultimately had to be made over the RAH children's ward. As they will ultimately have to made over education and the other examples I provide. And ignoring that inevitability only makes the ultimate climb down all the more offending.

As I said I will finish with one particularly outrageous example.

On 3rd May 2015, a man called Sheku Bayoh died while being restrained by police officers in Kirkcaldy. Now, as I said above, the Yes coalition is a wide one. It includes on one wing many who are of a naturally anti authoritarian bent with little time for the "forces of state repression" in any form. But it also extends well into the leadership of the Scottish Police Federation, who have come repeatedly to the nationalists assistance, from during the referendum when they claimed to have seen little or no evidence of nationalist thuggery, to more recent support over the handling of the leadership crisis at Police Scotland.

But the problem over the Bayoh case is that, whenever a decision is made on whether there should be prosecutions, one or other group is going to be furious, "offended". For the former can see no circumstance in which a black man might die accidentally while in police custody while the latter no circumstance in which Police officers might ever be heavy handed in dealing with any suspect (at least unless they had brought it on themselves).

So, the nationalist answer to this conundrum? Nearly three years after Mr Bayoh's death, eighteen months after a report was submitted to Crown Office, no decision has been made either way whether to prosecute or to rule out prosecutions.

Now the actual decision is of course a matter for the independent prosecution service but demanding that they make a decision is surely a matter within the remit of the Justice Minister's responsibility to protect the integrity of the system? Except of course, no decision offends nobody. And perhaps offending nobody matters more than any other consideration.

I'd only point this out as a statement of the bloody obvious. A decision of some sort will have to made sometime and that's highly unlikely to be after a "second referendum", even on the most optimistic of nationalist timetables.

Perhaps it's time for them to realise that, to paraphrase Lincoln, "You can't please all of the people, all of the time" and just get on with it. Indeed get on with deciding things more generally.



Friday, 29 December 2017

Book of the Year

Back on the First of July I explained I would be doing much less blogging and generally I've kept to that. One of my intentions at that time was to use the time gained to do more reading but in truth it's mainly given me more time to watch football on the telly.

But over the holiday I have had more time to read and one of the things I've read, or more correctly re-read was what I think on any view has been the most important book written in Scotland this year: Poverty Safari by Darren "Loki" McGarvey.

The world it describes could not in one way be more different from my own comfortable middle class existence, never more comfortable than over a festive period where what to do, eat, drink or give as presents passes by entirely as a matter of choice and without affordability featuring in any meaningful way. Yet it is a world with which I am actually only too familiar, for it is the world in which for nearly forty years I have been engaged professionally.

So what (here I pause as to what to call the author: Mr McGarvey sounds altogether to pompous but Darren would pretend a personal familiarity which does not exist. I'll settle for his performing name and Nickname) "Loki" describes resonated with me on every page. Poverty cascading down through the generations. Not just financial poverty but environmental poverty; poverty of expectation both for and by its victims; poverty of hope.

Before I worked in Cumbernauld I worked in Easterhouse for seven years, from where Cumbernauld was then regarded as approaching a promised land. Anyone who could then get out from the "schemes" seized the opportunity to do and those from Easterhouse moved out centrifugally to Cumbernauld in the same way as those fleeing Easterhouse's south side twin, Castlemilk, gravitated towards East Kilbride.

And for some, perhaps for more than Loki would concede, the move worked. Amid a fresh start in a cleaner, greener environment, in (generally) better quality housing and with some at least of the lack of local facility problems that had so crippled the schemes addressed at the outset, new opportunities were taken. Helped, there is no point now in disputing by the widespread take up of the rent to buy,* which gave so many their first lifetime opportunity of home ownership.

But many regrettably were still trapped by history. I give this but as one of what could be any number of examples.

Not long after I arrived in Cumbernauld I encountered a woman who had been an Easterhouse client in a case involving domestic violence and (as Loki also observes) its common companion, child neglect. She was in not on her own behalf but with her daughter who was dealing with the aftermath of a relationship involving domestic violence and child neglect. Today, the first woman's great grandson is a child I encountered in a case involving allegations of.....domestic violence and child neglect. Generations for whom having a social worker is as routine as having a doctor and, regrettably, often more common than, certainly as a teenager, having a regular teacher, such is the prevalence of poor school attendance against such a home background.

And all the other features of this life. Constant economic uncertainty certainly, but also legal and illegal substance abuse. Unstable relationships involving the conception of children between people barely known to each other at the time. Anti-social behaviour without any real perception of how that might adversely affect the lives of other people or even cause them to look towards (and sometimes react towards, and worse), you. Chronic ill health at an early age including the almost ubiquitous "anxiety and depression" that leads to a ping pong existence of jumps between ESA and JSA, with all the stress of "Cadogan Street interviews" this involves. Ironically, given the way the Tories have now changed the financial entitlements, now piling on stress for little actual "benefit" financially to either the claimant or the State. And of course, the curse of "Sanctions" and the swap between relative poverty and absolute destitution that can induce.

Loki spells all of this out much more eloquently than me, with the "benefit" of personal experience in the telling.

But he then raises some more telling observations in the process. That "systemic" change, as proposed as the solution by the left wing political tradition he (and I) still adhere to, won't sort all of these problems on its own. There has also be a commitment to personal change. Personal change that requires help from "the system" certainly, and here I pause only to note Labour's achievement in reducing child poverty between 1997 and 2010, but personal change which "the system" itself can't induce alone. Not necessarily solely individual change but change that can be brought about collectively. Only however if driven from the bottom up, not dictated from the top down. A point on which he is quite adamant and on which I yet more adamantly agree. In my lifetime what was once the voluntary sector has lost far far too much of its voluntary nature, changing in the process not only its appellation but also much of its independence from local or central government, leaving recipients of the "service" provided often with little distinction between the two.

But the final conclusion is not his but mine. How can we help people to break of this cycle of misery?This should be the most important issue of our age yet instead it appears now to be on nobody's agenda. Not the Tories, for whom the idea of Universal Credit was once a worthwhile attempt to make it easier to move into work, but who have now, through botched execution and, more deplorably still, conscious intention, allowed it to slide into a crude cost cutting exercise. But not the Labour Party either whose "radical" manifesto last June, while full of lots of goodies for middle class students and relatively well off unionised interests in public and former public sector employment, had little or nothing to say about those at the very bottom to the extent indeed of being absolutely silent on what we might do about the benefit freeze. And as for the SNP? The Scottish Government? Don't even get me started.

I don't know what to do about this. And yet in one way I do. It follows from a tradition running from Victor Hugo, through Shaftesbury and Wiberforce to Dickens and to Orwell, that if an outrage is to be addressed it must first be exposed to the oxygen of publicity. Darren "Loki" McGarvey is a worthy successor in that role. Read his book.

Oh.

and a Happy New Year when it comes.

* With hindsight, the problem with right to buy was not the principle but the failure to build replacement stock




Sunday, 19 November 2017

Congratulations Comrade Leonard

And so this years Scottish Labour leadership contest is at an end. I said at the start that I would vote for Anas, which I did, but I also said at the start that I would be content with either candidate, which I am.

I thought Richard ran much the better campaign because he actually promised so little and that was the clever thing to do.

Anas's campaign was policy, often innovative policy, rich, whereas you would struggle to find much in Richard's platform that is not current Scottish Labour Party policy. That is as it should be.

There will be no Scottish Parliament election for three and a half years and by that time the Scottish political environment will be very different.

I see no reason that the stasis in the SNP's approach to our public services will have moved on, so scared are they of offending any section of their fragile "Yes coalition", so inevitably by 2021 the condition of our public services will be much worse. Whether, however, the electorate will have concluded that this is due to their being insufficient money, and thus be willing to thole tax rises to address this or whether, instead, they will conclude that existing money is being unwisely deployed.....we'll know that in three years time. Richard's cautious approach on this is surely better than Anas's comprehensive and specific proposals. Richard even cleverly threw some red meat to his supporters with his proposal for a wealth tax which he quietly acknowledged in the small print was beyond the existing powers of the Scottish Parliament. This, dare I say it, is one straight out of the SNP playbook. No less clever for that.

Anyway, in three and a half years time we will be but a year out from a UK election. It would be lunatic for Scottish Labour to fight a Holyrood election promising that no matter what taxes were levied and public spending sanctioned by a supposedly imminent radical, left-wing Westminster Government, taxes and spending would be higher in Scotland still. So lunatic that it is not going to happen. Instead we will fight the Hoyrood election promising to fund certain things and implying we will raise taxes if required to do so. And that's as far as we'll go. Richard got that. Anas didn't.

And in three and a half years time UK Labour politics will also have moved on. Corbynism at the moment floats along on the illusion that a UK General election, and a Labour Government, is somehow imminent. In reality neither is. Because of the Fixed Term Parliaments Act the only way the Tories will not stumble on until 2022 is if they want an early election. Which, unless the polls have moved very decisively in their favour, is not going to happen. Indeed, standing their near death experience earlier this year, even if they were twenty points ahead in the polls, such an opportunistic early contest would be a hard sell internally.

So Corbyn's age will become an issue. He is currently 68. By June 2022 he will be 73. Some Countries have a tradition of political gerontocracy but ours does not. Sure, Churchill won aged 76 in 1951 but he was something of a special case and that administration generally accepted not to be exactly his finest hour. Other than that, every 20th or 21st Century Prime Minister has been significantly younger and elected in the reasonable certainty that they'd be capable of being in office for a full term. Once the idea of an imminent further contest has been eroded by the passage of time, attention will inevitably turn to this. And if we're going to change leader then we'll want that done before the Summer of 2021.

Now that might be just to someone of similar politics but I wouldn't bet on it. What Corbyn won in 2015 was essentially a personality contest. So will the next contest be. I credit Corbyn with having moved the Party's policy agenda to the left but not with establishing forever a messianic cult of ultra left leadership. So his departure will be the opportunity for a changed climate of internal debate which I suspect will also lead to a return to the Party's Westminster talent being more fully deployed. And that rapprochement will also spill over to Scotland. Short term, it has suited Richard to be Corbyn's candidate but long term, if he wants to be FM, he will want to lead a united Party. And also, as I pointed out when I wrote at the start of the contest, Richard has no personal history of Party sectarianism. Here's however another thing. He traded,over the last three months, on having opposed the challenge to Corbyn in 2016 but he's never to my knowledge said who he voted for in 2015. Someone should ask him.

And that leads me to my final point. We have no idea what the Scottish political landscape will look like in 2021 but almost inevitably it will remain utterly dominated by the National question.  All the attention has been on whether Nicola will attempt to call another referendum before May 2021 but, like the question of whether there will be an early UK election, this is simply something which is not going to happen. She would need a section 30 and Mrs May is not for her having one. As indeed would be any other conceivable Tory leader. But come 2021 the internal politics of the SNP will make a manifesto pledge to hold another vote almost certainly unavoidable. Yet all external evidence indicates that such a pledge is electorally toxic to sufficient of the electorate to deny the Nats, even with their Green allies, a Holyrood majority for that proposition.  Indeed, that's the very reason they are so desperate, however forlornly, to have a pre 2021 poll.

What happens then? Suppose the 2021 Scottish election gives none of the three "big" Parties a workable governing coalition without one of the others?  Well, here's the clever thing. Richard has emerged from a contest in which this was surely the most obvious question to ask without ever having answered it at all.

So Comrade Leonard doesn't have his immediate troubles to seek but he has emerged from victory with two substantial assets. The first is the absence of any hostages to fortune but the second is far more valuable still. Time.

Peter Mandelson would be proud of him.