Life, liberty and the pursuit of numptydom

It has been a week for goggling helplessly, open-mouthed. 

This morning, the source of my befuddlement was this screed from John McTernan in the Scotsman, arguing that the government's draft interim constitution, which has been put out for consultation, represents a return to "dodgy regimes with bogus constitutions." 

 

So far, so mental. But it gets worse. You expect a better standard of polemic from a man who once worked at the heart of the UK government and presumably ought to understand how the state functions. Yet this brief piece is crammed full of legal errors, distortions and elisions. It's breathtaking. In his eagerness to tear at the throat of the SNP, McTernan rubbishes basic features of European and UK constitutional law, and the achievements of the Labour government in which he served. It's a cautionary tale on the intellectual bankruptcy which results from comprehensively subjecting your brain to party-political partisanship. Let's take a closer look at a few choice passages.

1. "A constitution is a serious matter. At its best it embeds values and embodies a nation’s aspirations. The United States in its constitutional commitment to “life, liberty and the pursuit of happiness” sketched the American Dream a century and a half before the phrase was coined. Written well, a constitution passes the test of time too. The US Supreme Court still uses the words of 18th-century men to make decisions on the issues and conflicts of the 21st century."

There's nothing to breed confidence like an elementary mistake in an opening paragraph. You won't find the phrase “life, liberty and the pursuit of happiness” in the seven constitutional Articles agreed in Philadelphia in 1787. That's because the phrase, for all of its fame, doesn't feature in the constitution of the United States, but in the country's declaration of independence from Britain. But ho hum. It makes for an arresting opening, whose fast and loose attitude to the facts cascades delightfully throughout the piece.

2. "First, the Scottish Parliament cannot pass an Independence Bill. On 19 September, whatever the result of the referendum, the Scotland Act is still in force. Schedule 5, Part 1 says clearly: “The following aspects of the constitution are reserved matters… the Union of the Kingdoms of Scotland and England.” Only the UK parliament can pass a law to break up the country. Only the UK government can lawfully spend taxpayers’ money on drafting such legislation." 

You're part right, John. But your first proposition - that the Union is a reserved matter - doesn't entail your second claim that "only the UK government can lawfully spend taxpayers’ money on drafting such legislation." Why not? Section 29 of the Scotland Act 1998 is about legislative competence. It is about what laws Holyrood can pass. If Nicola introduced her draft Bill to Holyrood now, it'd clearly be ultra vires as you say. But she's not doing that. She's produced a proposal to be chewed over, commented upon, updated - and introduced after a Yes vote in September and the necessary legal deal-making with Westminster. 

And there is diddly squat in the Scotland Act, saying ministers and the parliament cannot explore, research and pour resources into the examination of reserved matters or considering constitutional counterfactuals. If that were the case, the whole Calman commission project, funded at the instance of the unionist majority in Holyrood, with civil service support, would presumably be unlawful too. But shucks, I can't seem to find your outraged diatribe about Wendy Alexander's "supreme arrogance" and "abuse of power" in setting up and funding the body to consider a slew of reserved constitutional matters in 2009. Presumably that Jeremiad got lost in the post. But let's continue.

3.  "... go further, read the bill. I know you don’t want to, so I’ve read it for you. It makes some breathtaking decisions on behalf of Scotland. To start with, it abolishes our constitutional monarchy. Sovereignty in the United Kingdom is the Crown-in-Parliament. The draft “independence bill” replaces that with the emetic sentimental emotionalism of “In Scotland, the people are sovereign” – whatever that means. Will there be plebiscites in place of the process of Royal Assent? No. The power of the Crown is being annexed by the Executive – the Scottish Government."

Ah yes, the notoriously unsentimental, unromantic institution that is the British monarchy. The rough way her Majesty is being treated in the text would bring a tear to a glass eye. Popular sovereignty, what a joke, right John? Funny. 'Cos the concept didn't seem to tickle so many of your Scottish Labour Party comrades, who put their names to the Claim of Right in the 1980s, which recognised "the sovereign right of the Scottish people to determine the form of Government best suited to their needs." That Gordon Brown and Alistair Darling: what a disgustingly sugary couple of sentimentalists.

4. "Actually, it’s pretty certain that the Scottish people won’t be in charge. The European Union would be given an extraordinary control over Scotland by the SNP. The bill states: “Scots law is of no effect so far as it is inconsistent with EU law”. It then adds: “Every person has the rights and fundamental freedoms set out in the European Convention on Human Rights. Scots law is of no effect so far as it is incompatible with those rights and fundamental freedoms.” That, effectively, cedes total sovereignty to the EU. That is as big a change as joining the euro – and would have as large a backlash from the public. Scotland, as the election of a Ukip MEP in May shows, is as eurosceptic as the rest of the UK. Good luck with the subjugation of Scotland to Brussels."

This passage is majestic piffle. Apex piffle. Piffle to end all piffle. John McTernan used to occupy a seat at the centre of government in the United Kingdom. You'd think that such an experience would give you an understanding of the basic public law of this country. But only someone totally ignorant of the law of the UK, or with a conscious intent to mislead, could mint a paragraph so liberally supplied with ignorance and distortion. 

Point one: The idea that these provisions invest EU institutions with "total sovereignty" is utter, utter guff. Under the treaties, EU bodies have limited competences. They can take decisions and adopt regulations, but only in the fields agreed by member states in the treaties. "Total sovereignty," and outsourcing of all legislative functions to Brussels and Strasbourg, it ain't.

Two, EU law already, in principle, enjoys supremacy over the national law of member states. As the Factortame litigation famously demonstrated, if domestic legislation conflicts with the law of the European Union, UK courts are obliged to apply the directly applicable EU law. This isn't a new idea. It is a decades-old, elementary feature of EU jurisprudence. Thinking about what the EU is for, this makes sense. If national regulations were permitted to trump EU rules on free trade, free movement and non-discrimination, the whole project of the single market could be undermined by protectionism and rendered a dead letter. 

The draft interim constitution's provisions are not, as McTernan implies, some loopy Europhile innovation outsourcing a vast swathe of new powers to Brussels: they merely reflect the legal rules which already govern the UK and every state forming part of the Union. If John objects to that, he can take to the barricades with David Coburn and Nigel Farage. If the rules set out in the draft Bill represent "the subjugation of Scotland to Brussels," then the UK is already subjected, manacle and fetter. Yet McTernan saw fit to omit this critical little detail from his article. I sense a warming theme.

Thirdly, McTernan also conflates the ECHR with EU law, suggesting that requiring Holyrood to uphold basic human rights norms with "subjugation to Brussels" and "the EU." The European Court of Human Rights has its seat in Strasbourg, and is a Council of Europe, not an EU tribunal. Congratulations John, you've just committed the public law teacher's greatest bugbear in the national press. Dismal shades here of the cobbled together, late-night undergraduate essay.

Fourthly, John totally ignores the character of the Scotland Act, which was introduced by the Labour government in which he served variously as henchperson and factotum. The Scotland Act provides that ... all of Holyrood's legislation must be compatible with Convention rights and EU law. Any law passed or ministerial action which violates your Convention rights or European regulations is no law at all, and liable to be struck down in court. This is a scheme which is neatly copied in Nicola's interim constitution. Get that. The draft text which has McTernan twisted all out of shape actually mirrors the constitutional reforms introduced by his own party in 1998.  Does the Scotland Act "mimic the language of freedom, only to mock it" too, John?

 

No doubt, when in office, he screamed the house down when his Labour colleagues created a devolved parliament in Edinburgh which - and I quote -"effectively, cedes total sovereignty to the EU" and subjugates "Scotland to Brussels." What's that John? Silence there are nothing more? Perhaps you found your Labour colleagues' decision so "breathtaking" that it knocked the stuffing out of you.

Or perhaps you reserve your pompous, scattergun, manipulative and under-researched hack work for your opponents. Do us all a favour: the next time the spirit takes you to write about the constitution, take a remedial course in public law. If today's shrill offering is anything to go by, you don't know nearly enough about how your country is governed.