3 December 2014

Civil War Politics

When I was naught but a nipper, Old Man Tickell once caused a fight in a pub in Kerry with what he thought was an innocuous question. Always interested in the politics and history of the Republic, he guilelessly asked one of the friendly locals, "what's the difference between Fianna Fáil and Fine Gael these days anyway? Ideologically, what separates them?" Cue one mighty stramash, as the punters around him fell out, and fell out dramatically, about what distinguished Ireland's two biggest parties ideologically.

The cynical answer might be: not a lot. But the orthodox answer is a historical one, rooted in the bloody, divisive and unnecessary experience of the Irish Civil War. The great houses of Fianna Fáil fell in behind Eamon De Valera, and the principle of an Irish republic. Fine Gael represented those who struggled for the Irish Free State, gradualism, and the awkward compromise Michael Collins struck with Lloyd George in London in the Anglo-Irish Treaty of 1921. The Free State may have won the war, but under the premierships of the scheming and reactionary Eamon de Valera, Sean Lemass, Jack Lynch, and the odious and greed-rotted Charles J Haughey, the Fianna Fáil machine crushed all before it for decades -- until 2011

Just as Scottish Labour was swept out to sea, the Soldiers of Destiny found themselves kicked into the soup by the Irish people, outraged and disgusted by the recklessness, incompetence and corruption of the Cowan government, and the poisoned legacy of profligacy, incompetence and mismanagement which  the cute hoors of Bertie Ahern's cabinet had abandoned the country to.

To the British political anorak, peeking across the Irish sea, the idea of structuring contemporary politics along civil war lines, rather than political ideology, seems bizarre. All of our large political parties are coalitions of opinion - a spectrum within which compromises must be struck - but organising your contemporary political struggles according to whether your great-grandfather favoured De Valera or Collins seems bonkers. It obscures, rather than illuminating, the key schisms dividing political points of view. 

But in Scotland, increasingly, I wonder if we aren't drifting quietly towards our own - peaceful - sort of civil war politics, with the splits and divisions of the 2014 referendum running deep, papering over the more significant political splits which untie and divide the country. Alex Massie has the droll but slightly horrifying gag that the electoral battle between Labour and the SNP is to decide "who gets to be Scotland's Fianna Fáil." I begin to suspect that this is truer now than it was before the September poll.

And if any figure is likely to reinforce this tendency, and to root it deep, it is Jim Murphy. The smoothest and most media-savvy of Scottish Labour's leadership candidates he may be, but Murphy is also the one most identified with the referendum, and most likely to alienate those who took a different view on the 18th of September. He has made much of his intention, if elected, to unite the country. In many ways, Murphy is uniquely incapable, of the three, of doing so. The memory of those Irn Bru crates won't fade soon.

And art is already anticipating politics. In Stanley Odd's Son I Voted Yes, we look forward to the kind of inter-generational political conversations and expectations which have been the stuff of Ireland's civil war legacy. "My da' was a Yes voter," you can imagine a proud wean explaining to his wee pal, who remembers in turn that his parents voted No. And dimly, in the future, anticipate a fight in some rural pub on this side of the Irish channel, the compliment of history repaid, as an inquiring Irish visitor to our shores enquires: "Can you tell me what the difference between the SNP and Labour is anyway?"

"Well," I'd say, "back in the referendum of 2014..."

2 December 2014

A party of government of women, by women, for women

The first woman was admitted to the Faculty of Advocates on the 13th of July 1923. Margaret Kidd KC, as she would become in 1948, was also the first Sheriff Principal in the land, appointed in the borders in 1960. For many years, Kidd ploughed a lonely furrow for the sisterhood at the Scottish Bar. The second woman, former Scottish Express journalist Isabel Sinclair, did not join Kidd until 1949 - some twenty-six years later. By 1985, the year before I was born, only thirty-one women had been admitted to the Faculty in its entire history. 

The daughter of the Unionist MP, Kidd was a lady of conservative temperament, despite her path-breaking career. It was said that she insisted being addressed as "my lord" on the bench - a practice which would make the most unbashable advocate of the present day cringe. Sinclair was a different character. Bolshier, more colourful than Kidd, she insisted on being addressed as "My Lady" when she became Scotland's first female sheriff-substitute. 

It was not, perhaps, the most radical blow for gender equality ever struck. It lacked the panache of the late Clarissa Dickson-Wright who, as a young barrister, gate-crashed a male-only gathering of her peers wearing a bear costume. But it marked the normalisation of women's participation in the legal profession and in judicial roles. It was finally time to let Portia be Portia

In politics, Margaret Thatcher didn't exactly ask her ministers to address her as "my lord", but her premiership echoed Kidd's legal career. Never entirely "one of the boys", but the solitary woman making her way. Conservative by impulses, comfortable amongst men, and largely uninterested in extending a helping hand to other women to aid them to surmount the ladder she climbed. You sometimes encounter similar views amongst the new generations of young lawyers and politicians, who wrinkle their noses at the idea that feminism has any contemporary resonance, and who baulk at making a big thing about gender politics.  

A couple of years ago, when I lived down south, I met a new-minted Conservative MP. Elected to the Commons in 2010, she was adamant that she would do everything in her power to resist being seen as in gendered terms, as a woman politician. I asked her an open question about the experience of the notoriously male-dominated lower house.  I was struck by what she said, and loosely paraphrase from memory. 

"When I was elected, I knew I didn't want to be associated with any of the usual soft, women's issues. Childcare. Domestic abuse. That kind of thing. I put in for the tough economic committees. For home affairs: crime, terrorism, prisons, drugs. That sort of thing." For her, the personal was not political. To talk about gender in politics was embarrassing, not emancipatory. It was to lose sight of the person. 

When it became clear that Nicola would replace Alex Salmond as First Minister, I wondered how she'd play this, as play it she must. Would she, like the young Tory parliamentarian, seek to soft-pedal the significance of her gender? Would she too flee from an explicitly gendered policy agenda? What was striking - even startling - about the tenor of Nicola's opening statements in post was the explicit, powerful, front and centre emphasis she placed on gender justice, equality and the empowerment of women.  

The glass ceiling, shattered. A gender-balanced cabinet, appointed. And a strong message sent "to girls and young women - indeed, to all women - across our land. There should be no limit to your ambition or what you can achieve." In an affecting moment, Sturgeon gestured towards the gallery in Holyrood, to a small, blonde, smiling face.

"My niece, who is in the public gallery today, with her brother and her cousins, is 8 years old. She doesn’t yet know about the gender pay gap or under-representation or the barriers, like high childcare costs, that make it so hard for so many women to work and pursue careers. My fervent hope is that she never will - that by the time she is a young woman, she will have no need to know about any of these issues because they will have been consigned to history. If - during my tenure as First Minister - I can play a part in making that so, for my niece and for every other little girl in this country, I will be very happy indeed."

You can't imagine Maggie saying that.  The force of the message reached even Chris Deerin, a father of daughters and not the SNP's most devoted fan, in a lovely piece.  Much was made over the referendum campaign of the gender gap in support for independence. But such the gender gap is not new, and is not limited to the referendum campaign. The SNP too has historically struggled to win the support of women. 

On the constituency ballot in 2007, 41% of men supported the SNP, compared to only 32% of women voters. On the list, 35% of men voted for the SNP, but only 27% of women.  The polling evidence from 2011 is inconsistent, but suggest that the party managed to bear down on the gap, to win its historical majority in Holyrood. 

The whys and wherefores of this gap has been the topic of considerable speculation but little study. Was it Alex Salmond? There's really not an awful lot of evidence that it was. Certainly, Salmond was less popular amongst women than men, but still recorded positive ratings from Scotland's women folk. Something else? Mitchell and Bennie concluded that fewer women backed the SNP because fewer women backed independence. QED. 

On Nicola's appointment, and since, the Scottish press have been much exercised by the question: will she lead the SNP in "a lurch to the left"? More interesting, it seems to me, is her clear intention to 
find a new formula for a successful, gendered Nationalism. The lessons of the 2014 campaign are categorical. Scotland will never - ever - achieve its independence unless more women can be persuaded that a better future awaits them in an independent country. That will be long, hard work. And work worth doing, independence or no. 

The new First Minister has a rare opportunity: to transform the SNP into a party of government of women, by women, for women. All power to her. 

1 December 2014

The "pooling and sharing" Union's last throw of the dice?

What is the Union for? We can't really make sense of Thursday's Smith Commission without considering this question. For many and most of those who voted in favour of independence last September, the Union is a ball and chain. Not a harmonious "family of nations" undertaking a joint enterprise together in shared institutions, but a dysfunctional form of politics, reactionary, lopsided, its institutions governing against the grain of the majority of Scots. 

That isn't rich loam from which to grow a new, optimistic account of what the British state and its institutions are for, capable of preserving the unity of the state in the longer run. The SNP were always going to be suspect negotiating partners for the pro-union parties, as they know - or ought to have known - that once they're out of the door, they're inevitably going to slate your proposals as a failure of nerve, and if they think they can get away with it, as a shameful failure to live up to your promises. There's no surprise that the seeds cast by Lord Smith fell on stony ground with the Nationalists.  

Nothing will prevent the political point-scoring, but entering into a long disquisition about whether "the Vow" was honoured or broken seems to me entirely pointless. The extensiveness of the new powers is largely in the eye of the beholder. Given these pessimistic starting points, your average Nationalist will struggle to see the Smith Commission report as anything more than a shill, mistrustful of Scottish self-government or "continued Westminster rule", in the First Minister's phrase. And Nicola is in one sense, dead right. 

For all of the panicked focus in the rest of the United Kingdom of the end of the Union as we know it, the Smith proposals are, essentially, a conservative restatement of the idea that the Union must do things and be seen to do things. Big things. It cannot be an empty vessel within which an autonomous Scotland is contained, and set at liberty to pursue its own priorities. A disinterested lender of last resort, or an organiser of armies and navies with no real interest or say in the domestic affairs of Scots. It must be a state with a purpose, with a mission. To characterise this as an unprincipled "fudge" is fundamentally to misunderstand the political thinking undergirding it. 

For Smith, the Union cannot be conceived a loose confederation of mutually uninterested parties, pursuing their own distinct political priorities. There must be Union dividends. It must pay you back in cold, hard cash. It is a single market in which the worker must be at liberty to float freely, and in which the worker can expect the same minimum wage whether she labours in Cumbria or in Aberdeen. Where her pension is paid from the same pot as her cousin in Kent. A union which builds homes, sustains communities, builds ships, heats pensioners. A Union which secures your fealty, not out of fellow feeling, or a dim sense of identity, but by keeping hold of the purse strings. By keeping significant parts of the doing of British government in hand. 

You may no longer work for state-owned corporations. Ravenscraig may have closed. But the Union justifies its existence by being a force in the life of every person in this country, more and less happily, more and less forcibly. Bugger the abstract calculations: Unionism must remain a matter of self-interest. The UK parliament and government must be felt to be a force in the land. Key political struggles must continue to be fought across the United Kingdom map. You may not agree with that. I don't agree with that. But by no means is it a dishonourable or self-evidently daft account of what it means to be part of a Union state. 

We find echoes of it in each and every other federated and confederal system in the world, where the central government finds itself under pressure to justify its existence and its political legitimacy. It isn't a UK pathology. It doesn't represent chronic mistrust of the Scottish people's capacity for self government. It's just how things work in a negotiated constitutional system, balancing the coherence of the state against demands for autonomy. It may be messy, it may not be the form of devolution I would have adopted, but it isn't an outrage and a scandal. 

Disappointed critics of the plans were given to ask, why can't Scotland decide these questions? Look at all the things we can't do. It is a scandal. But to put the Unionist case at its highest, this critique rests on a fundamental misapprehension. Certainly, Holyrood has no power to vary the universal credit, but via its Members of the Westminster Parliament, Scots have a powerful (if minority) say in how these basic UK-wide benefits should be shaped. 

It is one thing to complain about what the UK parties do once in office, and of the policy consensus dominating them. It is quite another to say that you exercise no power whatever over this decision-making. Smith turns essentially on defining what questions should be subject to co-decision across the United Kingdom in the Westminster parliament. You can argue that this exposes us to bad decisions. You may contend that Holyrood would make a better job of it, and better reflect the democratic aspirations of people living in Scotland. I sympathise. But co-decision making was always on the Smith agenda. Remember Gramsci's dictum: "devo-max" was never on offer. 

In this respect Smith is - essentially - a Calman Plus package, reflecting many of the same principles and approaches which leant the 2012 Scotland Act its finickiness and caution.  It entirely chimes with a key section of the Vow, in which the three Westminster party leaders set out a vision of the United Kingdom which "exists to ensure opportunity and security for all by sharing our resources equitably across all four nations to secure the defence, prosperity and welfare of every citizen." 

Some months ago, Alistair Darling observed that most of the low-hanging fruit of devolution had already been gathered. The obvious competencies had been harvested in the Calman process, and in dribs and drabs before and since. Smith represents a slightly bolder rattling of the boughs, dislodging shoogly issues such as the Crown Estate and a general welfare power, but otherwise leaving the golden apples of significant powers over welfare and taxation unplucked.

This should surprise nobody. The key break on the radicalism of the Smith Commission was always likely to be the instrumental vision of the Union, most associated with Labour, but endorsed by Annabel Goldie last week. One nation. Pool and share. Pool and share. Smith faced a simple choice: honour this vision of the United Kingdom, or junk it in favour of a bolder idea of Scottish autonomy, relinquishing key reserved competencies (and arguably, breaking with the spirit of the famous pledge in the Daily Record). 

It was never likely to happen and it is surprising that some folk persuaded themselves that anything like the Scottish Government's proposals were likely to materialise. That isn't to say that  some of the Smith proposals won't have positive effects if enacted. They are, however, positive effects and the elimination of paradoxes and uselessly constraints which will be appreciated by sad-hearted constitutional obsessives like me, but risk going unnoticed by the wider Scottish punterdom. If enacted, after Smith, the Scotland Act may be a more satisfactory statute. I doubt, however, whether the vision it articulates has the force or simplicity to nip desires for greater autonomy in the bud.  

Much has been made over the weekend of the Smith Commission heralding the beginning - or perhaps the acceleration - of an ever-looser Union. (The "F" word - federalism is being tossed carelessly about: handle with care.) Massie argues that Anglo-Scots relations have become increasingly "contractual" in nature. That may be so - but for me, the Smith Commission's findings stand precisely at odds with that logic: they don't confirm or promote it. Although the tax proposals have soaked up a good deal of ink, the bigger story for me is Smith's conservatism on the welfare state: preserving the universal credit and jealously retaining responsibility for the minimum wage. 

Smith represents the maximum devolution possible, without fundamentally reshaping the United Kingdom, and ditching the "pooling and sharing" Unionism which was the lifeblood of Labour's argument against independence. The final package isn't a repudiation of these principles, but a last-ditch defence of them. What some critics have slated as the Commission's grudging minimalism can be seen in another way -- its proposals represent a stout insistence that the Union must work for Scots and be seen to work for them. It cannot be the label, tying together a loose confederation
One of the propaganda coups of the long referendum campaign was when Alex Salmond lured David Cameron to Edinburgh. The photographers and cameramen might have been filming an international visit. Cameron didn't look like a Prime Minister on the north most corner of his own patch, but a visiting dignitary in a strange land. The SNP's pitch to the Smith Commission essentially asked the UK to internalise this vision of how Scotland should function within the Union: as the constitutional near abroad. Smith declined. And in declining, Smith represents the end of the road for the post 1998, tinkering vision of devolution which leaves the centre of British politics fundamentally unreformed. 

I keep coming back to Tom Nairn's analysis of the devolution push of the 1960s and 1970s. It remains germane today:

"There was no real belief in a new partnership of peoples. And in fact, such a partnership - in other words, genuine "transfer of power" from the old state - was never conceivable without the most radical reform of the centre itself. To give effective power away meant examining, and changing, the basis of power itself: the Constitution, the myth-source of sovereignty, and all that it depends upon. The whole British political system had to be altered. There has been no serious question of doing this, for the sake of the Scots, the Welsh and the Ulstermen. The only political party which advocates it is the one permanently removed from power, the Liberal Party. Unable to contemplate radical reform of the centre (since its whole modern history has been built on avoiding it) London government has blundered empirically into using the usual tactic of graduated response. One commentary after another has explored the self-contradictory nature of the proposals, their liability to generate conflict and escalation of nationalist sentiment and demands."

Lord Smith's proposals represents the last roll of the dice for the pooling and sharing vision of the Union. To be candid, I think they've made a fatal error. If the purpose of these proposals was to answer and dissipate Scottish demands for self-government, and in the long run lock Scotland into a more satisfactory constitutional settlement, they have failed. Calman Plus proposals could never achieve that. Lack of control over key areas of taxation and social security will remain the Union's running sore.  

Half a century on, there remains no real belief of a new partnership of peoples. The small-mindness and exhausting partisan snark of the post-Smith fallout underlined that fact. There is no new Unionism. No visionary, zesty endorsement of home rule. There is only the defensive crouch and the possessive gleam in either eye, the grim determination to give the old "pooling and sharing" conception of the Union one last heave, one last chance. The Union must die so the Labour Party can live. 

In time, the Smith Commissioners may come to lament their caution.

26 November 2014

Notes from the Rouge Morgue...

When did Scottish Labour become so inept at politics? 

This afternoon, Gary Gibbon of Channel 4 published this blog, reporting findings from his attempt to "take the temperature" of the party's Westminster delegation on the reported volte-face on devolving all of income tax to Holyrood. Gibbon found that the Labour tribunes were not happy little bunnies, not at all. 

"The temperature is at morgue chiller levels", he reports, alongside a series of damaging quotations from disgruntled parliamentarians, suggesting that tomorrow's Smith Commission proposals will be a calamity for the Union, a "complete disaster." Income tax devolution is not represented as the intrepid, visionary and generous act of a party comfortable in its own skin, emboldened by the referendum victory, and committed to "home rule" - but a grudgingly granted and much-resented concession. 

This is madness. If, as expected, the Smith Commission endorses these plans tomorrow, these leaky tribunes will have achieved nothing save to undermine (a) confidence that Labour will deliver on the Smith compact, if elected in 2015 and (b) strangle in the cradle the already frail delusion that Labour, in its current mood, is "the party of devolution", despite its historical boasts and pieties.  

Yesterday, I argued that the Smith Commission represents an opportunity for Labour and the Tories to redraft their constitutional storytelling, to restate the Union in bold, contemporary form and to re-articulate their own places within it in a more satisfactory way. The Smith Commission plans certainly contain the resources for a compelling shift in the constitutional debate.  A powerhouse parliament. Completing devolution's work. Expressing our faith in the capacity of the Scottish people to govern themselves. And for Labour - a critical opportunity to get back on the front foot and to knock the perfidious Nats helter-skelter.

And god knows, you'd think the People's Party would be glad of the life-raft. Bilious low expectations gnaw at Labour's credibility on devolution and its institutions. You'd think they'd have learned the lessons from reluctant devo-something offer, which saw them dawdling behind the Tories, mistrustful of Scottish self-government and apparently determined - above all - to protect the party interest. But today, on the cusp of their big opportunity to make the weather, they appear determined to appear stinting and huffy. Again. Madness. 

Bitching, publicly, about something almost certain to happen -- and instead of pitching it as a glorious triumph of a renewed, confident party, comfortable with devolution and at home with governing in the UK -- it is all soor faces and grief. Reluctant, crabbit, clenching, grudging. 

And there's more bad news. If the Labour MPs are girning on about income tax, it seems unlikely that Smith will recommend the devolution of substantial social security responsibilities -- that would drive them hopping mad and cultivate an altogether different temperature. My own view, for what is is worth, is that the failure to stump up significant powers over welfare will sign the Union's death warrant. Certainly not today, and probably not tomorrow -- but in the long run, the failure of nerve and failure of confidence will keep the underlying questions of social justice burning bright and hot. 

Labour look determined to lose the post-indyref peace. Their Unionist fellow travellers, anxious about the Union's continuing frailty and anxious that that peace is won and won well -- must have their heads in their hands.

"The buggers are out to get us."

On first glance, it sounds like a wee thing. A technical thing. On page ninety-two of Nicola's new Programme for Government, under the heading of land reform, the dry civil service prose notes:

"As part of this modernisation the distinction between movable and immovable property would be removed to give children, spouses and civil partners appropriate legal rights over both forms of property. This should ensure a just distribution of assets among a deceased’s close family to reflect both societal change and expectations."

I can feel your eyelids drooping, but the implications of this dreary little sentence are eye-popping -- if you happen to own great tracts of land and wish to bequeath them to your beloved son and heir. It'll have the Tatler class in the Borders and the Highlands buckled in grief. Ragged strips of tweed, the only remains of a popping laird, will be fluttering over rural Perthshire. But to see why, you have to know a thing or two about the Scottish law of succession as it stands. 

When you feel the cold hand of the Reaper feel your collar, or sense him hovering near, you have a few options. You can scribble up a will, setting out how you'd like your property and assets to be distributed after your death. Alternatively, you can leave the distribution to the law of intestacy, which sets out rules about who gets what after you are under the clod. Generally speaking, if you write your will, effect will be given to your testamentary wishes. Uncle John's gold watch will go to wee Jimmy, who always loved its ticking so. Your bungalow will transfer to the cat and dog home, to keep the nation's unloved moggies in the manner to which they have become accustomed. 

But you don't have limitless freedom under Scots law. Your close relatives - your spouses and children - have certain legal rights over your property. They can forswear whatever legacy you grant them in your will, and claim their legal rights from your estate instead. But here's the crunch. At present, these legal rights only extend to your moveable property - money in the bank, gold bullion in the shed, shares and so on. They don't extend to heritable property - to land and the houses built upon them. At least, not yet

If you wanted to be a cruel, cold-hearted Scottish patriarch, and to write your hated spouse and children out of your will, you had to drink the profits while alive, or invest them in land. But if you maintain a healthy surplus in your bank account, and try to exclude one child from inheriting any of it, they can override your will and claim their legal rights from your estate. Nicola's plans kibosh those aspirations. And these legal rights aren't paltry sums. A single child whose mother survives is entitled to claim a full one third of his father's moveable estate. That may amount to six bob and a pickled egg, or hundreds of thousands of pounds. 

The exclusion of heritable property from the bairn's part has obvious consequences: it allows large, landowning interests to keep their estates together, generation to generation, by immunising testamentary intent from legal challenge. It gives the dead landowner the final word on where their hunting estates, and farms, and stately homes end up. Second sons and daughters don't get a look in. If they are unhappy with the generosity of their legacies, they can claim their legitim rights, but the land itself is exempted. Which is why Nicola's proposals today, despite their untrumpeted delivery, have real radical potential.

If introduced, those disgruntled second sons and daughters would have the right to have land - potentially very large tracts of land - factored into their legal rights, whatever the deceased's will had to say about it. Perhaps these siblings would want to honour their father's wishes, and for the eldest boy to inherit the title and the property -- but I dare say others would want to vindicate their legal entitlements in the teeth of dearly departed's desire to disinherit them. If those making wills know that their wishes will not and cannot be enforced against their children, that too is likely to encourage changes of behaviour, and the gradual erosion and division of the country's biggest estates.

There are doubtless canny corporate workarounds and expensive trust work which could defeat the simple logic of the Scottish Government's policy here -- but extending legal rights to land is more than just a technicality. It strikes at the heart of the legal system of succession which is instrumental in upholding and maintaining landownership in its current form. Before the referendum, "one of the country's pre-eminent dukes" fretted in Tatler that "the buggers are out to get us." When His Grace chews through the implications of today's announcement, I dare say he'll be confirmed in his opinion.

25 November 2014

Anticipating Smith ... on welfare

The coffee pail bubbles down to an acrid stew. The prawn sandwiches are curling. Night pulls the sun under the horizon. And the meeting, the interminable meeting, goes on. Civil servants clip in and out with scraps of paper. Hangdog faces dominate the table. Increasingly impolite apologies are offered, as the protagonists nip into the corridor to field hissing mobile phone calls, anxious not to be overheard. Nerves fray as weariness increases. Everything heads south. The final text is assembled, scrappily, bit by bit. Disagreements are finally squared, or not squared. Minds soon turn to the aftermath, to the lines to take, and the victories and the strategic retreats to be spun. 

This, give or take, must be the atmosphere in the Smith Commission as the last few grains of sand fleet through the hourglass, and Saint Andrew's Day approaches. The political representatives are due to announce their heads of agreement by the 30th of November: just days away. I'd expect this document to be simple, categorical - and leave several points of detail and practicality underdeveloped. It will not, I imagine, be a detained administrative blueprint, but a broad statement of principle and intent. How could it be otherwise, given the breakneck speed with which the report will have been assembled?

The Commission hasn't exactly been leaky - but there have been a few noises off from the political parties participating in it, who must now have a fair idea about the nature of the proposals which the group is likely to endorse, and the key points of friction between them. One of the weekend's most interesting stories was the news that the Liberal Democrats have reverse ferreted to an undisclosed extent on welfare devolution. So much, so vague. The new commitment may be much less than it seems, and until Thursday, one for the Kremlinologists trying to work out which coalitions of interest have formed within the Commission - and the extent to which Labour or the SNP finds their respective maximalist and minimalist visions of autonomy isolated by the other participants. 

It now seems probable, for example, that income tax will be devolved in its entirety - but important questions remain outstanding about the autonomy Holyrood would enjoy in terms of setting the basic rate and the bands. Elections too, seem likely to be devolved, with some hints that the fixtures and fittings of the Scotland Act will also be liberalised, to allow the Scottish Parliament to bend and shape its structure to meet changing needs. 

Pensions, however, surely have a snowball's chance of finding their way onto Holyrood's balance sheet (and in the absence of significant revenue powers, this may well be a damn good thing too). I'd also expect to see heads of agreement on codifying the Sewel convention. I'd be surprised if the legality of any future independence referendums was clearly entrenched in the new Scotland Bill - but you never know. There will be other flotsam and jetsam too, of greater and lesser degrees of technicality and public interest. Minimum wage? Answer came there none. Abortion law? According to the Sunday papers, maybe.

But the political firecracker is social security. What precisely does "substantial new welfare powers" look like? What can it look like, in a historically unitary system where social security has been squeezed within the framework of a universal credit? I'm reasonably confident that the Commission will agree in principle to something along the lines of the additional general welfare competency or a top-up function which I commended to them in my submission earlier this month.  

The idea is doable, legally workable, good in principle, and in line with fundamental principles of devolved autonomy and "pooling and sharing" resources. We might gripe - not unreasonably - that such an authority would be a paper responsibility only, while public spending is in the vice. But in a small way, it would beef up the armoury of the Scottish Parliament. Would it represent a "substantial" new power? Well, yes and no. In the absence of new control over significant swathes core welfare spending, it would be a drop in the ocean. But not without utility or significance for all that. 

There will be a strong expectation, at least, that the much-mooted housing benefit and attendance allowance will be devolved. The bedroom tax has given the scheme a high political salience, and expectations have been raised. But we can't be too blithe about its devolution. It'll cost a fair whack to wheedle housing benefit out of the universal credit - who will bear the cost of those changes? And if the cost is prohibitively high, and would consume an unreasonably high percentage of the Scottish budget alone, would it be worth the bother? 

It is one of those unlucky conjunctions for the Union. Dissatisfaction with welfare reform has increased the political salience of social security policy, and demands for its devolution, while Iain Duncan Smith's consolidation of welfare spending into a universal credit has made the devolution of these powers considerable trickier and more costly. If only Calman had had a little more forward vision back in the late 2000s. In terms of core welfare spending, the Smith Commission is now in all or nothing territory, essentially. And that has implications for the tax base and tax powers too. There is no point investing Holyrood with responsibilities it can't afford on a sustainable basis. 

Given the Labour Party's case for the Union, its "pooling and sharing" patter, however, it is difficult to see how any devo deal which includes Iain Gray and Gregg McClymont can be particularly radical, falling closer to everything than nothing on key forms of social security for the unemployed and the disabled. If Smith can't cajole the UK parties into a bolder vision, welfare policy looks doomed to become the Union's running sore. If the Union remains fragile, a feeble Smith Commission offer will do little to staunch the flow. 

The structure I propose - a general grant of power to Holyrood combined with protecting the UK welfare enactments under Schedule 4 - also represents a constructive way of approaching other issues, such as equalities, empowering Holyrood while protecting core UK statutes. Equal opportunities are currently reserved in Schedule 5. A better way of proceeding would be to protect the Equality Act 2010 from modification or repeal by Holyrood, but to give the Scottish Parliament the green light to adopt regulations and prohibitions to promote its own conception of the demands of equality.  

As things stand, the Scottish Parliament is tied up in pointless prohibitions by the Scotland Act's Schedule 5 approach. The time has come to conceive of the relationships between Holyrood and Westminster more flexibly and imaginatively. It chimes with the home rule methodology that autonomy should be devolved, save where there are compelling reasons to reserve the power exclusively to Westminster. 

There are several areas of policy, in a Union, where compelling reasons can be found. Bones should not be made about that. The "devo-max" vision of devolving everything short of foreign affairs and defence was always over-egged. What about our common market, the heart of the 1707 union, and everything that comes with it? What about decision-making on currency? 

The radicalism of the Smith Commission deal will depend, to a very significant extent, on which side - the autonomy-promoting Nationalist contingent - or the reluctant devo-minusers of the Labour Party - the other Smith Commission participants coalesce around. The Nationalists can be expected to argue that the settlement - any settlement - falls short of the "master key" of independence. Quel surprise. You'd expect nothing less. 

But there are other propaganda wars which the Unionist parties must fight and win. For the Unionist spinners, the plans cannot be another badly-sold Scotland Act 2012 - finnicky, grudging, technical and forgotten. It must be crisp, easy to understand, its real-life relevance clear and categorical. It must be bullet-pointable. 

The proposals must be seen to honour the ambitions of "the Vow," however vague its commitments and mercurial its terminology. The bare terms of "home rule" and "federalism" - though much-quoted - don't really take us very far, compatible with a range of more and less powerful devolved institutions. Indeed, Holyrood already enjoys greater autonomy in some areas that many federal institutions in other states.

But politically, Labour, the Liberals and the Tories must be seen to be as good as their word. The SNP can be expected to slate the proposals as falling short of independence. The party would struggle, however, to make the broader and more significant indictment - that the Vow has been ratted on - if Smith's proposals are and appear to be substantial and bold. Smith seems likely to be the end of road for devolution: an event, not a process. Ruth Davidson's line in the sand, if you like. Thus far and no further. 

As the delegates sit down for their final meeting, slurping the cold coffee and labouring towards dawn, welfare autonomy perhaps represents Lord Smith's greatest challenge. Room for manoeuvre curtailed by the centralising force of the universal credit reforms, bounced by Labour's historic opposition to devolving key, highly visible benefits, it is increasingly difficult to see how the Commission's recommendations on Thursday can avoid falling short of the expectations raised.  

Cry last orders, ladies and gentlemen. The Commission is in for a long night on Wednesday.

11 November 2014

Abortion: the limits of conscientious objection?

An interesting and tricky Scottish case has come up for decision in the UK Supreme Court this morning. Back in 2012, two midwives employed by Greater Glasgow and Clyde Health Board - Mary Teresa Doogan and Concepta Wood - brought a judicial review petition against the health board, arguing that they were being forced to "participate" in abortions, despite their conscientious objections, as devout Catholics, to the practice.

Section 4 of the Abortion Act 1967 recognises the right to "conscientious objection to participation in treatment," providing that "no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection."

Neither Doogan nor Wood were obliged to participate in the medical procedures producing abortions in the Southern General, but the pair were responsible for delegating, supervising and supporting other healthcare professionals in the treatment of patients undergoing termination of pregnancy. They argued that the conscientious objection provisions in the Abortion Act extended not only to participating in abortion procedures, but should also exempt them from responsibility for timetabling and supervising the practices they object to.

At first instance in the Court of Session, Lady Smith rejected this argument, holding that the Abortion Act's right of conscientious objection did not extend to the midwives' case-management responsibilities, as they didn't amount to "participating in treatment." Counsel for the health board argued that the logic of the midwives' argument could very well extend to the ward cleaner, whose scrubbing - in some sense - facilitates abortion in the hospital. Could, should they be able to argue that their mopping representing "participating" in abortions, and to decline to participate on religious grounds? Lady Smith thought not, and rejected Doogan and Wood's argument. 

The Inner House of the Court of Session had other ideas. The midwives appealed, successfully. Lady Dorrian held that Lady Smith's approach was too narrow, and the conscientious objection enshrined in the Abortion Act should be taken to extend - not just to direct participation in abortion procedures - but much more widely, to encompass the kinds of activities the midwives were being obliged to undertake in the Southern General. The Inner House held that:

As Lord Diplock observed in the RCN case, it is a matter on which many people have strong moral and religious convictions, and the right of conscientious objection is given out of respect for those convictions and not for any other reason. It is in keeping with the reason for the exemption that the wide interpretation which we favour should be given to it. It is consistent with the reasoning which allowed such an objection in the first place that it should extend to any involvement in the process of treatment, the object of which is to terminate a pregnancy. This is also consistent with our conclusion that the only circumstance of sections 1(1)(a) to (d) to which the exemption does not apply is section 1(1)(b), and that the only circumstance when the objection cannot prevail should be when the termination is necessary to save life or prevent grave permanent injury, because in such a situation the real purpose is not to effect a termination but to save life or prevent serious permanent injury.

Today, the Greater Glasgow and Clyde Health Board ask the UK Supreme Court to reverse this decision, and to endorse a more limited conception of the right to conscientious objection to abortions. So, "does s.4(1) of the Abortion Act 1967, which provides that "no person shall be under any duty to participate in any treatment authorised by this Act to which he has a conscientious objection", entitle a Labour Ward Co-ordinator to refuse to delegate to, supervise and/or support midwives providing care to patients undergoing termination procedures?" 

That's for Lady Hale and Lords Reed, Hodge, Wilson and Hughes to decide.