20 June 2014

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.

28 comments :

  1. Gosh. Why don't you tell us what you REALLY think about John McTerrible?
    Nice article.

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    1. Dash. I *knew* I'd been too understated...

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  2. He knew exactly what he was doing.
    It's all part of the false narrative and misleading the public.

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  3. Have you been taking classes in gutting journalists from Rev. Stu?

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  4. Ouch! I've told you before, you're pretty when you're angry.

    Many years ago I worked for a company with a development methodology that began with a question: is this problem worthy of our attention? I'm not sure that McTernan makes the cut, but then he seems to be the only sort of thing they have. I'd be interested in other opinions as to whether we should engage with such people. I suspect RIC have it right - ignore them, knock doors and talk to the citoyens.

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    1. It is a fair enough question. In this context, I plead professional interest. I'm not sure, to be frank, what if any good comes of administering a merited drubbing to such folly - but the law tutor in me couldn't be doing with such rubbish standing uncriticised.

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  5. Have you offered this article to the Hootsmon or better still Sunday Herald as a response??

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  6. I like experts. You always get the impression that they appear to know what they are talking about. McTernan isn't an expert. Nevertheless we can still describe him with words of exactness. Even if they are listed in the dictionary under profanities.

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  7. ‎Labour‬ Party spin doctor John McTernan tweets -

    "Rachel said - correctly - she would be tougher than the Tories on welfare. We are the Labour Party not the Dole Party." #RedTories Vote #Yes!

    See the tweet:

    https://m2.facebook.com/blacktriangle11/photos/a.192375567451091.43122.191782724177042/730948806927095/?type=1&_rdr

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  8. Excellent piece outing several hypocrisies, but I would just make one point about the Factortame litigation, which is that the "supremacy" of EU law from the perspective of the domestic court is contingent upon the European Communities Act and not the Treaties.

    As such, the dicta of Lord Denning in Maccarthys v Smith, that "If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in it or intentionally of acting inconsistently with it and says so in express terms then... it would be the duty of our courts to follow the statute of our Parliament" was not repudiated and is entirely consistent with Factortame.

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    1. A few legal types were blethering about this the other day, and in particular, how orthodox the interim constitution is, vis-a-vis the supremacy question. An interesting one. Obviously, you're right on the sources of law front - but I don't think it materially alters the interpretation of the interim text a great deal or McTernan's misrepresentation of it as a wild departure towards a wretchedly europhile future.

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  9. I shall steal ' numptydom '. lol.

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  10. Thanks for the inspiration.

    https://norrie.wordpress.com/2014/06/20/mcternan-achieves-numptydom/

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  11. This comment has been removed by the author.

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  12. We can see our financial contributions to your site well and truly at work here. Nice.

    Hugh Wallace
    arewebettertogetherscotland.wordpress.com

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  13. Good to see you shrug off the lawyerly gentility and heave yourself out of your pram.

    You should do it more often. I dare say you will have further opportunity.

    Excellent and educational stuff.

    Thanks.

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  14. Well done.

    Now turn him over for another lambasting.

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  15. Well, most Americans wouldn't even know that "life, liberty and the pursuit of happiness" isn't in the Constitution.

    But I have further criticism of McTernan's statement. The American Constitution was written with a procedure for amending said constitution. The first 10 amendments are known as the "Bill of Rights", ratified shortly after the Constitution was adopted. The others have to do with various things including voting rights, abolishing slavery and creating and repealing alcohol prohibition. Times change, and the Constitution changes along with it.

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    1. Or can do, depending on the amendment procedure you adopt. Good luck passing any even slightly controversial changes to the U.S. constitution these days.

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  16. An excellent piece - erudite, entertaining and a spanking. That's a triple whammy, we don't get often enough.

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    1. Indeed - first class from LPW

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    2. Excellent filliting. A seeker of truth can only be praised.

      McTernan makes plain he's a nasty piece of work and aims to stay that way until given his bauble to enter the House of Lords.

      How many people see him as completely unreliable?

      This brings me to a reservation - your prose style assumes readers are educated. But we are told the key to Scotland regaining its dignity is the mass of what used to be called the working class voting Yes. The group is just as often categorised as Labour supporters. Would any turn to this site for information and guidance? And if unlikely, how does one get good argument before them so that they can discuss it? And assuming that happens will they discuss it? A horse to water, and all that.

      I run a blog myself, indulged to stop myself shouting at the television screen, and at the behest of my wife, (probabnly to shut me up) but the same question I put to you I put to myself. If Mr and Mrs average white Scot know of what we argue will they pass it on to those too hassled, too stressed with daily life to find time to spend an hour on blog sites?

      How do we avoid good research and common sense squandered?

      My modest ambition is a hope I can convince one person, one not sure, or even one over-my-dead-body-No, to vote for his country's maturity. Maybe I've answered my own question.

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    3. I write the way I write. There are plenty of folk agitating for a Yes vote who, in fairness, adopt a more populist style than I do. It is also worth emphasising that the Yes campaign could afford to do rather better amongst professional, highly-educated Scots too...

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  17. Well now, a small point of law. The original Union treaty has a withdrawal clause in it, inserted by the Scots, which says they can choose to leave, if the Scottish Parliament or people do so choose. Oops!. As the "London Agreement" between the Scottish and london governments is actually legally binding, that means that immediately after a YES vote, it takes effect. Sovereignty is automatically transferred back to Scotland. The international law of treaties then takes effect. The effect is that if one side withdraws from a treaty, as per the treaty allows, then the treaty is immediatly void and goes out of legal existence. End of treaty. This has interesting consequences: The prime one is that automatically, the United kingdom is abolished, as the treaty that created it is no longer valid, and is defunct. Ooops!!. Oh dear!!. The second one is that the UK parliament no longer exists. It reverts to being the parliament of the kingdom of England, with the principality of Wales, Northern Ireland. It no longer has any legal power to legislate for Scotland, on any matter. It only has sovereignty over the Rump UK. In International law, the Scottish government can pass a declaration of sovereignty through the parliament, using its majority. That's it. The London Government lawyers know this, they are terrified we might find out. I therefore bring these facts to you as a public service.

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  18. Dear Mr Peatworrier. John McTernan was credited as having lost the Australian elections for Julia Gillard.He was drafted in to help Labour but instead he became universally detested by all who met him. They found him to have misrepresented, lied and smeared his way through the whole campaign. The upshot was a Conservative victory.

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    1. A career littered with triumphs, clearly.

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