Calman's Sausage Factory Vol. 1

I recently read a book about the Philadelphia Convention of 1787 called “Plain, Honest Men: The Making of the American Constitution” by Professor Richard Beeman. Beeman outlines the wrangling narrative and muddled story of argument and agreement which underwrote the drafting of the Constitution of the United States of America.

Dominant themes are the conceptual muddle, the pressing force of individual and local interest, temperament – and simple unglazed uncertainty about what one should do, what one wanted, and what conscious measures one should adopt to achieve it. As I read of the Founding Fathers’ wrangles, petty squallings and interminable disputations, it reminded me of the epigram, popularly attributed to Otto von Bismarck “to retain respect for sausages and laws, one must not watch them in the making.” The case is doubly so with a constitution, and hence, America probably sleeps sounder imagining their founding documents came ‘fresh from the Gods’, composed by firm-fetlocked, Herculean souls. But what of our constitution, and the Calman Sausage Factory – will it bear examination?

As anyone who has but glanced over the Final Report, it’s a fine lumpy wedge of text. Clarity is rarely delivered in 300 pages, nor would it be served by me writing 600 pages of analysis in my elaborated superhot-aired fashion. Since the Calman Commission generated six areas of particular focus, it is probably best to take each one in turn, and it turn it over crisply. Some areas will be more commented on or disputed than others, part 1 simply being introductory, while the real coin-counting enterprise commences in Part 3. Better with these things - to my mind - to wield a rapier rather than a shovel.

For the “short version” of the whole kit and caboodle, consult my earlier post here. For the moment, I wanted to raise a couple of specific issues from Part 5, of the “Strengthening the Devolution Settlement” Report, which runs from pages 157 – 214 of the document. This section of the report was produced by a task force lead by Sir David Edward, a former judge on the European Union’s European Court of Justice, based in Luxembourg. Reference is made to the principles of devolution – concerned, for example, that particular functions would reasonably have to be reserved for the wider, “federal” government – while other decisions can more appropriately be made at a “local” level. What choice issues do they reveal?

“Scottish Government”

Interestingly, the Commission employ the – contested – name of the “Scottish Government” throughout the report. Per the Glossary, “Scottish Government the executive arm of devolved government in Scotland. Under section 44 of the Scotland Act 1998 its legal name is the Scottish Executive” (p. 243). Rummaging through the document, you’ll find the phrase “Scottish Executive” is used 17 times – many of them direct quotations from legislation – while the phrase “Scottish Government” appears a whopping 165 times. What to make of that?

Energy
During the early stages of the discussion surrounding the Commission, reference was made to the nuclear question, planning laws – and the SNP’s trenchant unwillingness to consent to the erection of even imaginary new nuclear power plants in Scotland. Threats about withdrawing those gadfly powers were mooted, although I remain unaware of anyone actually proposing to fling up a new Dounreay, Hunterston or Torness. The Commission recognise this in a coy, flirtatious section, reading:

5.101 In its approach to considering responsibility for energy policy, the Commission has been mindful of claims that the Scottish Government is prepared to use, or perceived to be prepared to use, devolved powers in order, it is said, to frustrate policy in a reserved area (in this instance planning powers and the elements of nuclear power in the UK Government’s energy strategy).

The argument for “clawing back” planning powers, and hence, neutering the SNP Government's attempts to foil imaginary nuclear plants was, however, summarily dismissed by the Commission in a section picturesquely entitled “Other”...

5.123 The Commission has taken evidence about the way in which planning powers (which are devolved) may come into conflict with powers exercised by the UK Government relating to areas that are reserved (for example the siting of nuclear power stations). The Commission recognises that the devolution settlement as it stands will always give rise to situations where the boundary between devolved and reserved powers gives rise to tension and urges that effective use is made of the mechanisms outlined in Part 4 to arrive at outcomes that are in the best interests of Scotland and of the United Kingdom as a whole.

5.124 The Commission does not consider that there is any case for reserving planning powers (My emphasis).

Considering that the “case” was made by Labour MPs and Ministers, the wording here could be seen as a bit of a spank. To quote the Labour MP of the Scotsman article above, “If they want more powers at Holyrood, then they're going to have to give some back”, it remains to be seen whether the absences in the report will prompt a bit of rebellion among the Labourite cohort at Westminster about the possibility of its implementation, unalloyed.

Justice & Home Affairs: The Lonely Airgun

Turning to part 5-H – glossing the intervening biosecurity, regulation of healthcare professionals and so on – and onto Justice and Home Affairs. After a hand wringing discussion of the perils of crossborder gunwielding, license, and so on – the Commission recommend in 5.13 that airguns should be devolved to the Scottish Parliament. To quote a black-hearted Unionist:

“Then there are the other powers that Calman reckons should be transferred from Westminster to Holyrood. Although the distinguished jurist who handled that part of the inquiry put up cogent arguments for transferring to Holyrood the control of air rifles, the running of elections, and the setting of drink-driving and speed limits, it seems to this observer that they might go north simply because that is what was asked for.”

And here is the point. I don’t particularly object to devolving airgun questions. But why are we doing it? What is the point of it? Certainly, David Edward or one of his scriveners makes the case, and outlines the problems of Giants Causeway style legal regulation in a state, where different areas are at different levels. But why, for example, are we focussing on airguns at all? Why not something else? What is the principled basis? To my mind, the more it looks like a sop, a purchasing off enterprise in thrall to present political discomfort – the more the “federal event” or “stabilising moment” is postponed.

If I was more Unionistic, achieving finality would be my primary goal. Unfortunately, however, the persistent constitutional dynamism of Britain – with its insistence on Parliamentary absolute sovereignty, unfettered by final texts and eschatological, constitutional documents – means that the door is never closed, but flaps, noisily slamming and bursting open again. There is no settled will, only a briefly resolved one, another moving picture.

Interestingly, the thinness of the report in this respect betokens something else - the wide breadth of powers which the Parliament already has over areas of Justice. While there are lacunae, including “the misuse of drugs”, the Scottish Parliament operates where the horizon of possibility is far distant, and the constraints on the thinkable and the doable, at least in terms of broadly “justice” issues, are already extremely slack under the Scotland Act 1998. At least in this case - that extra powers can be conceptualised as a vain attempt to buy silence and contentment, Cochrane may be on the button.

The primary difference of course being that for him, this is a matter of regret...