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.


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.

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 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.


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.

Monday, 30 October 2017

Lessons from Catalonia.

I could write at length about the differences between Scotland and Catalonia. Particularly about how one is a historic nation forming a voluntary part of the world's oldest democracy, The other, on the other hand has never, ever, been an internationally recognised independent country and belongs to a modern state which has within living memory been a fascist dictatorship. Most particularly of all however, that  the former, without a written Constitution, has to make the rules up as we go along while the latter has an overwhelmingly popularly adopted written constitution that sets these rules.

But that's not the point I want to make. The point I want to make is about nationalists here not being bothered about the effect of their actions on people's everyday lives.

You see, what exactly was/is the "strategy" of the Catalonian Nationalists? Suppose on Friday afternoon the democratically elected Government of Spain had thrown their hand in and said "OK, you are independent." How would then even supporters of Catalonian Independence been able to pay their taxes to the "Government of Catalonia"?

Well actually they wouldn't have been, for only the Spanish Government has the administrative machinery to receive and process all major taxes duly paid, through the Agencia Estatal de Administración Tributaria. (The Spanish HMRC).

And how would pensioners or benefit claimants of the most enthusiastic nationalist bent have been able to receive their pensions or benefits? Well, actually, only the Spanish Government has the ability to make these payments. Indeed I suspect only the Spanish Government even knows who is entitled to receive them.  And even if the Spanish Government did a data dump to their Catalonian successors, the latter wouldn't have any money or technical machinery to pay the pensions or benefits. Or indeed public sector wages. As, as I repeat, they don't have any money or the technical ability to receive taxes to raise that money. Indeed, initially. logically, an independent Catalonia won't even have any legally levied taxes to collect! Spain had levied taxes and the regional government of Catalonia (as part of Spain) had levied taxes but on the declaration of independence both of these bodies ceased to have any legal jurisdiction in "free" Catalonia.. All of which would take, at best, months to sort out. Which kind of puts the legitimate disquiet over a UK six week delay in Universal Credit payments commencing in to some perspective.

Instant Catalonian Independence is a nonsensical proposition. That's even before you start on the flight of Corporate Capital that was the inevitable consequence of there being an uncertain (I put that kindly) regulatory framework in an independent Catalonia. Or indeed the impact, in an area hugely dependent on tourism, of the reluctance of anybody to take their holidays where the local administration was in a state of chaos and the medical services going unpaid.

Instant Catalonian Independence is a nonsense even judged against the proposition the SNP put before the Scottish people on 18th September 2014. For that was not for Independence on 19th September 2014. It was for independence fully nineteen months later once precisely the issues I refer to above, in a Catalonian context, had had the chance to be addressed. And, don't forget, many, even on the Yes side, thought that nineteen month period to be unrealistically short.

Just as even the most enthusiastic Brexiteer didn't think we could leave the EU on the day after the referendum and is slowly accepting that even the article 50 timetable might be an unduly optimistic goal.

So why is Catalan Independence being taken seriously? I'll let you into a secret. It is not. Not by Spain, not by the EU, not by any Country in the world. Not even, really, by Catalonia. In Catalonia it is really aimed at getting Spain to negotiate about something more sensible. Although that now has clearly been a miscalculation.

The only place it is being taken seriously is by the governing party in Scotland, even their Green allies having adopted a low profile.

And why is that? Because, for many in the SNP, possibly even a majority, having a viable plan for "independence" isn't actually necessary. It is a decision to be taken based on emotion, not reason. Whether taxes could be levied, or pensions, benefits and wages paid is unimportant. What is important is, literally, a flag and a song. Which is pretty much all Catalonia proposed to start off with.

And that puts our own notorious White Paper into context. It wasn't just over optimistic. it was actively deceitful. But to the true believers that didn't matter.

Don't take my word for it, listen to the words of Mhari Black at the SNP Conference earlier this month.

"We might not know where we are going, but we sure as hell know what we are walking away from".

"We might not know where we are going".......for which she received a standing ovation.

Personally, before I set off on any journey, I want to know my intended destination. But mibbee that's just me. Who knows, next year I might go to Catalonia.

Wednesday, 11 October 2017

Dark days.

I recent times I have written my blog from my desk at the window of  my rather over grandly titled library. I say rather over grandly titled because while the room is undoubtedly lined by my books it is also the repository for various other junk for which a place cannot be readily found elsewhere in the house.

Nonetheless, it does have a desk and a window beyond that desk which looks out to the garden.

So, for six or so months past I've been able to look out as Spring came, the trees grew slowly greener and fuller and colour slowly emerged among the flower beds.

Tonight however I am looking out in to darkness, knowing only that for nearly three months things will only get darker still.

And that kind of marks my mood about the state of our nation.

Brexit is an utter disaster. It is a policy regarded as such not just by the current Prime Minister but by every living Prime Minister. And not just by the Prime Minister but by the de facto deputy Prime Minister; by the Chancellor and by the Home Secretary. By the leader of the Scottish Tories and the Tory Secretary of State for Wales. By the vast majority of opposition Members of Parliament of all political stripe. By the Scottish Parliament and the Welsh Parliament. By the Treasury. By the EU certainly but also by every one of this Country's other major allies. By almost all independent economic forecasters in this country and in the wider world. Indeed by almost anyone with an informed opinion.

And yet we are told it must be persisted with. Because we had a referendum and, to lift the nihilistic words of a different sort of nationalist, Mhari Black, in a different context this week, on one single day, by a narrow majority, the electorate were prepared to sign up to the proposition:

I've never got the outrage at the Nats wanting another Referendum. I've certainly mocked their demand that such events should happen daily until they got the right result but it would surely have been unrealistic, indeed undemocratic, to have suggested that on 19th September 2014 the SNP should have wound itself up as a political Party and accepted that their cause was done. In that same vein, I never accepted, even had we lost on that September day, that my side would have had to have given up and join "Team Scotland" (copyright A. Salmond) to make the best of (or more likely share the blame for) the economic calamity that would have followed. I argued back then for "Unionists" legitimate right to insist that we'd been right and they'd been wrong, on through as many elections as followed, at least until the deed was actually done. Somewhat ironically, having located that very blog, I recall the nationalist outrage which followed.

So I don't accept that we, the electorate, are somehow mandated in the legitimacy of the options available to our elected representatives by a vote on 23rd June 2016, any more than those victorious on that day were obliged to accept such a vote from 6th June 1975.

But, to be clear, you cannot deny the electorate forever. You have to have the courage to confront them with their own folly. That you can't have prosperity without immigration. Or, for a Country of our size, economic influence without allies. Or allies without a means of shared decision making. Or shared decision making without an arbiter over what these decisions mean. That it is a deal or it is no deal, and a deal cannot simply be dictated by only one side.

So we need politicians with bravery.  Politicians on the Tory and Labour side to stand up together to declare "THIS IS MADNESS!" even in the knowledge that, under our first past the post system, they take a risk with their own long term careers.

But I get, as much as anybody gets, the draw of what is unfairly dismissed as Party tribalism but more accurately categorised as Party loyalty.

My mother died on the 13th of April 1979 during the General Election campaign of that year. I was but a boy of twenty but my folks had both been big Labour people locally (my father had died three years before) and the Party, at that time, looked after me, literally, as family. As it has, through personal and political ups and downs ever since. I'd find it exceptionally difficult to leave the Labour Party.

And I had a similar exchange with a pro European Tory post 23rd June 2016. "Let's try and persuade Ruth to lead a new Party" I proposed, by no means entirely frivolously. "I hate this, but I'm still a Tory. And so is she." was the response. On both sides we know this. Other people, comrades on my team, colleagues on theirs, matter to us across the divide. For they are family. And blood is thicker than water. People we might hope would only feel disappointed by such a development but we fear would actually think betrayed.

But perhaps there is an alternative. We now have a fixed term Parliament and a Brexit process to be concluded within it. Would it be beyond the device of woman and man to declare, in numbers and on both sides, for free votes on that process? Impossible? Except you see that's essentially what happened in 1971 when we first decided to join the EU. John Smith ended up voting with Reginald Maudling and Tony Benn with Enoch Powell. As, today, Diane Abbott might vote with Jeremy Hunt while Jeremy Corbyn joins Jacob Rees-Mogg. On this one issue alone. And somehow, a very British way, we might yet muddle through.

For Brexit, or at least a hard Brexit, would be a disaster.  And yet unless something happens that is precisely our destination. Through personal weakness on both sides of our two major Parties, those who perceive that coming disaster only too well are currently trapped, by tribalism or loyalty, in a way proving it impossible to prevent.

Something has to give or those judged most harshly by history will not be the true believing Boris Johnsons or John McDonnells but the Commons majority who saw it all coming but, for reasons of the moment, chose to look away.

Wednesday, 20 September 2017

Written Constitutions

Think back to your Higher History.

The whole of Hobsbawn's "long 19th Century" (1789-1914) was about insurrections against absolute monarchies. In 1789, 1830, 1848 (in spades), 1870 and at various other points in between "the people" rose up in "revolution". But, while their protest was invariably about particular urgent grievance, their demands invariably included "A WRITTEN CONSTITUTION!" Not so much to prevent these grievances from recurring but rather, if they did,  to provide a non revolutionary means for their resolution.

For revolutions might be glorious things, even on occasion necessary things. But they involve violence. Violence in which people get hurt. Even, if they succeed, people "hurt" on the winning side who do not live to celebrate the victory.

How much better if matters can be resolved at the ballot box within a commonly based agreed set of rules (for that is all a constitution ultimately is) and with an ultimate independent arbiter in the form of a Supreme Court?  A Court constituted in accordance with...... the Constitution.

Nobody gets hurt (except perhaps reputationally) and certainly nobody gets killed. And that surely has to be progress.

So that is why the Nineteenth Century's long march towards progress involved the steady adoption of constitutions. It is also why, within my lifetime, as they emerged from fascist totalitarianism in southern Europe, or communist authoritarianism in central and eastern Europe, that almost the first step of every Country was to adopt a constitution. For, today, every democracy in the world, (except four, a point I refer to in my footnote) has a written constitution. And it is also why the first act of any right wing coup, in any previous or temporary democracy, is to "suspend the constitution".

It is against that background that events in Catalonia have to be judged.

After the death of Franco, Spain became a democracy. And it adopted a constitution. Which was put to a national referendum in 1978. At which referendum it was approved overwhelmingly, including by 91.4% of voters in Catalonia.

And that constitution  included the declaration that Spain was indivisible.

There are, as there almost inevitably are, provisions for that constitution to be amended. But in respect of this provision it hasn't been.

And it is against that fact that events in Catalonia need to be judged. For as much as the establishment of a constitution is an aspiration (over more than 200 years) of the left and ultimately an achievement of the left, then the ability of any person or interest or faction to defy a democratically approved constitution can only be a defeat for the left. For while that defiance might on one occasion be about unilateral secession, it might on another be about freedom of speech, or religious observance or sexual equality.

And yet that is precisely what is being attempted in Catalonia. Even if some of the partisans of a unilateral repudiation of the Spanish Constitution don't appreciate that. I say some, because as with the dark underbelly of Scottish Nationalism, I'm sure many realise exactly what their politics truly are but just prefer to keep that quiet for the moment.

But I want to finish by talking about the first written constitution, which inspired so many others, that of the United States of America.

What was the American Civil War about? Today it is thought about being to free the slaves, Except it wasn't. Initially it was simply about the "right" of the southern states to unilaterally secede from the union, contrary to the Constitution. Emancipation followed only after nearly two years of actual fighting.

So let us be clear. That's the parallel. Anybody who supports the unconstitutional events in Catalonia have but one exemplar, Jefferson Davis. And let's be equally clear, any true democrat, Scottish or otherwise, should be standing with Lincoln. Not so much for the Union but for the Constitution. For all of us, but particularly those of us on the side of progress, benefit from there being a constitution. Don't ask me, ask those who died before me for that very principle.

Footnote. The four Countries are the UK, Canada, New Zealand and Israel. The second and third follow "our" example, The final one? These people are Israelis, They've presumably concluded they'd spend so much time arguing over what should be in their constitution that it was easier just to not have one at all.