16 March 2015


The Scottish people may have a right to self determination, but as a matter of international law, we have no right to secede from the United Kingdom. A couple of weeks back, I delivered a lecture to our honours students on the concept of territorial integrity in international law, and that, in a nutshell, was the inconvenient, take away message from the class.

Unless a "people" is forcibly redeeming itself from colonialism, the oppressive domination by an alien people, and denied equal access to government, international law remains leery about recognising the right of sub-state communities unilaterally to blast apart the borders of recognised states, like the alien wean popping out of John Hurt's belly.  As the Supreme Court of Canada said, in the Quebec reference of 1998, in international law:

"... the right to self-determination of a people is normally fulfilled through internal self-determination - a people's pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances."

Would-be Napoleons know that international law will not now permit territory to be acquired by force. But as the Russians have demonstrated in Ukraine, and the effective annexation of the Crimea, the discourse of self determination, married to dirty tricks, can allow looming territorial neighbours to abuse salami-slicing tactics to de facto acquire territory which could not be won de jure with a tank or at the barrel of a gun. 

That is one of the reasons that the General Assembly of the United Nations has recently adopted this resolution, reaffirming the principle of territorial integrity and that the Crimea remains, as a matter of international law, part of the Ukraine. The breakaway territories of Georgia, South Ossetia and Abkhazia, raise similar anxieties, both in terms of the Russian influence, but also in terms of the basic principle that international harmony is best promoted by upholding the integrity of states within their recognised borders. 

Kosovo, and the judgment of the International Court of Justice on the legality of its declaration of independence from Serbia, may have undermined traditional conceptions about the preconditions for unilateral secession, but even taking these into account, Scotland enjoys no right to secede. If you cast your mind back to the Crawford and Boyle UK government paper of 2012, on international law aspects of the referendum, they talked about "negotiated independence" as opposed to secession. 

But if the UK government had decided to cut up rough, to block the referendum, or ignore its outcome, they would be behaving entirely within their rights under international law as it is understood today. Replace the word "Quebec" with Scotland and the word "Canada" with the United Kingdom in this section of the Canadian Supreme Court Quebec secession reference, and you get the idea. 

136.  The population of Quebec cannot plausibly be said to be denied access to government. Quebecers occupy prominent positions within the government of Canada.  Residents of the province freely make political choices and pursue economic, social and cultural development within Quebec, across Canada, and throughout the world. The population of Quebec is equitably represented in legislative, executive and judicial institutions. In short, to reflect the phraseology of  the international documents that address the right to self-determination of peoples, Canada is a "sovereign and independent state conducting itself in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a government representing the whole people belonging to the territory without distinction".

The students looked a bill shell-shocked at these tidings, certain that they would find in international law some recognition for the basic democratic rights that they had all exercised last September. But you won't find any such recognition. Self determination, at last legally, does not mean what most of the punters think it means. But after class, I find myself lingering most over this idea of "internal self determination" in the context of the rampant Jockophobia presently gripping elements of the Conservative Party and their friends and allies in the tabloid and broadsheet media. 

You could be forgiven for thinking that the Tories were not running candidates north of the Tweed, so outraged are they by the prospect of David Mundell setting the political agenda for the Plain People of England, and subjecting the Nats to "no platform" style rhetoric, in the hopes of appealing to the English folk who blether to Matthew Parris, who formerly did not "harbour any feelings, positive or otherwise, towards Scotland", but who are now feeling got at, cantankerous and queerly victimised

In the hopes of pleasing these people, and of undermining the chances of a minority Labour government being formed, we are seeing a vigorous attempt to tar and feather the SNP as unconscionable, crackerjack, wabbit-eyed separatists, and illegitimate actors in British politics. "We refuse to negotiate with any political party, unless and until it renounces its separatist agenda and lays down its commitment to asking irritating questions about how Britain is governed." But take heart. International law tells us, we must press for internal self-determination. Inconvenient, it may be. Awkward, no doubt. But  England must expect the Nationalists to strive to dismantle and to rebuild the foundations of the British state from within. 

Although the Nats are the explicit target of these Tory diatribes, their real objective is to pre-emptively de-legitimise the idea of a minority Labour government taking office with Nationalist votes, even if such a government would command stronger support in the Commons than a Tory minority.  The real victims in all of these antics are not the SNP - but the pigeon-hearted Labour Party, who predictably enough, seem content to go along with their own annihilation at the hands of Fleet Street and Conservative Central Office.

The exaggerated polarities of Yes and No are a clumsy prism through which to see the ambivalent and warring sentiments and preferences at work in the 2014 referendum. They are even less apposite, less helpful, in trying to think through and act constructively in its aftermath. As international law reminds us, self-determination is not only about independence, and the creation of a separate state, but about how we are governed within the United Kingdom. As Shakespeare did not say, a real and meaningful union must be one "which alters when it alteration finds."

10 March 2015

Roll of Honour

It is a short, technical-seeming judgment, and like many brief, technical-seeming judgments, it is more significant than it appears. In Donnelly and Walsh v. Procurator Fiscal, Edinburgh, Lord Carloway and his colleagues had to decode a decision by two of his fellow judges, to grant leave to appeal against a conviction in Edinburgh Sheriff Court. So much, so banal. 

Where matters get more interesting, however, is that the appellants, William Donnelly and Martin Walsh, were convicted by the sheriff of having committed offensive behaviour at football under the Offensive Behaviour and Threatening Communications (Scotland) Act 2012.  The sheriff found that Walsh and Donnolly had belted out "Roll of Honour" at a match between Hibs and Celtic at Easter Road in October 2013, concluding that this behaviour was caught by one of the Act's broad prohibitions, and was likely to incite public disorder.

Donnelly and Walsh are attempting to challenge their convictions under Article 7 of the European Convention on Human rights, which provides that:

  1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 
  2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.

Article 7 has a bit of history in Scottish criminal jurisprudence. The old catch all common law offence of breach of the peace was gradually worn down and clarified by the courts, anxious that the vagueness of the offence would not satisfy European human rights criteria.  In Smith v. Donnelly, still the decisive word on the definition of breach in Scots law, Lord Coulsfield noted that "the Convention requires that any law creating a criminal offence must meet a certain standard of clarity and comprehensibility." It is not enough that the convictions of Walsh and Donnelly can be hung on section 1 of the 2012 Act: in order to satisfy Article 7, the criminal offences created "must be clearly defined in the law." In the language of the Strasbourg court:

"... this requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts' interpretation of it, what acts and omissions will make him criminally liable." S.W. v. The United Kingdom [1995] para 35.

Do the offences created by the football legislation pass this test? In the particular circumstances of the case, was the applicants’ right to know, with sufficient clarity, of the nature of the crime in terms of Article 7, breached? I would be surprised if Walsh and Donnelly prevail here. The crimes set out in the 2012 Act are arguably at least as clear as Smith v. Donnelly's definition of the crime of breach of the peace as "conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community." But leave to appeal having been granted, the High Court will now have to embark on its first substantial review of the football legislation on human rights grounds since it was so hastily passed by Holyrood. One to watch.

9 March 2015

Tory projection therapy...

It must be a frustrating thing, being a Conservative. Between 1997 and 2010, you were consigned to thirteen long years in the doldrums of opposition, after the internal ructions, divisions, and scandals of John Major’s dying half decade in No. 10. Expelled from Scotland, drubbed in Wales, knocked out of contention in great swathes of England north of the Wash, during these stale decades, you have seen your core support grey and die off, and won few new friends in the intervening years. 

While there have been bright spots and incidental victories during the rotting of Gordon Brown’s trouble-prone, listless and disloyal government, even facing down a Prime Minister sagging under the weight of his demons and his personal unpopularity, even then, featherweights Cameron and Osborne still could not win their majority. Votaries may continue to be laid at the Thatcherite shrine, but the Iron Lady’s electoral success continues to elude her true blue heirs and successors. Today, Cameron would give his eye teeth for Major’s 1992 numbers, taking 336 seats to Kinnock’s 271. Even the most optimistic polling current projections put the Conservatives short of the 326 required for a working majority. 

And while the destruction of the Liberal Democrats may bring a glad twinkle to the Tory eye, without Nick Clegg’s support, the party is without viable friends and allies. Comrades of the past, the Ulster Unionists, have had their own substance devoured by the DUP. The Greens, the SNP, and Plaid Cymru, will not touch David Cameron’s party with a bargepole.

UKIP is the viper nestled in the Tories’ own bosom, laid by the Thatcherite indictment of the European Union, and incubated by the divisive years of internal conflict between "the bastards" and John Major. While prominent party figures have attempted publicly to repent of their past backwardness, racism, villainy, and social illiberalism, even broadly sympathetic fellow travellers like Hugo Rifkind maintain that the nasty party has not "modernised", to shed its habits of mind, and skin. 

Frustration in response to these setbacks and failures is an understandable reaction, but the Tory party and its cheerleaders in the media seem incapable of self analysis. In the Daily Mail, Max Hastings inveighs against the "Stalinist" SNP.  Nicola, he suggests, is "red in tooth and claw", and that "the terrifying prospect of the Scots ruling England is all too real." Conveniently absent from his tirade is any recognition that English MPs constitute a whopping 86% of the House of Commons. 

If Hastings’ beloved band of reactionaries, bigots, merchant adventurers, and conscienceless asset strippers cannot command the support to form a majority government, that is not attributable to "Scots ruling England", but to the failure of the Conservative Party to convince more than a third of the English electorate to support them. Notice that Hastings, slyly and with deftness, associates "England" with Tory successes.

It may be helpful to remember than in the 2010 election, the party won only 39.6% of the vote in English constituencies and 298 of the 533 seats contested. If the current polling is to be believed, David Cameron will have to be content with an even smaller share of the vote in May. Forgive me if I fail to regard that as a decisive mandate and an injustice to the Plain People of England for the Nats to have any say in the future direction of the United Kingdom.

Instead of engaging in self analysis of the failures of the once dominant Conservative party, the neurotic British right always find a convenient sacrificial victim for the wicker man, be it a Lib Dem MP refusing to vote for some madcap Tory scheme, or European politician or bureaucrat or judge, who prevents the mandateless, majorityless Conservative party from swaggering around like a party with a thumping endorsement from the whole people of England, Northern Ireland, Scotland and Wales.

If you want an explanation for that missing majority, Mr Hastings, look to yourself and to your fellow travellers. It is tempting to see these victim fantasies and outbursts in terms of Freudian transference. Addressing the underlying source of frustration is too tricky -- a scapegoat relieves the frustration, but leaves the underlying source of anxiety unaddressed. For the grousing Tory, bereft at the idea that a majority if beyond them, it is always someone else’s fault, and the nasty party is always being hard done by. So much for the Tory tradition of taking responsibility for your actions...

8 March 2015

Assisted suicide: a fundamental question of liberty and power

As the great American physician Dr. Horrible once observed, "the status is not quo." That is the premise of my column this morning in the Scotland on Sunday. 

Poor Andrew Wilson is still labouring under the pernicious lurgy, and filling in, I took Margo's assisted suicide proposals as my theme, putting the boot in to the intolerably vague character of the law currently on the books. Our parliamentarians may not agree with Patrick Harvie, and may reject the the general principles of the Bill, but they cannot now be under any illusions that the status quo is fine and dandy.  An excerpt:

"DANIEL James was a rugby player, a rugby fanatic. Capped by the English juniors squad, the engineering student lived the physical life, active, robust, embodied. On 12 March 2007, at a training session at his Nuneaton club, a scrum buckled on top of the young hooker, dislocating two of Daniel’s vertebrae and compressing his spinal cord. He awoke tetraplegic, paralysed from the chest down. He could not move his hands, or feel his fingers."

7 March 2015

Wherefore art thou, Honest Abe?

Not many folk read Thomas Carlyle these days.  Although we hear quiet echoes of the Scottish historian and critic in our folk histories of the French Revolution, with his pungent prose, Carlyle's high Victorian style can seem hopelessly windy and overwrought today. But it would be wrong to see Carlyle's collapse into obscurity as a question of style only. The basic assumptions informing his approach to understanding history, society and social change have been hotly contested, not least his argument that "history is nothing but the biography of great men."

In his time, Carlyle was not alone in conceptualising history as a succession of charismatic individual leaders and kings, warriors and tyrants, whose choices shaped the lives of the tongueless legions of the silent dead, who went about their lives in the shadow of these collossuses, shaped but not shaping their fates. Hegel famously described Napoleon as "the world spirit on horseback." As critics from Herbert Spencer onward have pointed out, the great man theory of history is simplistic nonsense. Leaders have their impacts and their influences, for sure, but life is much more complicated, more collective, and agency more socially distributed, than a mighty roll call of caesars and conquerors admits.

In academic history, the approach may be a dead letter, but it remains alive and well in UK political commentary, which tends to personalise successes and failures, focussing relentlessly on personalities and perceptions, conceptualising and understanding politics from the top down, rather than the bottom up. But it remains something of a surprise to discover Martin Kettle, giving us a vintage draught of great man theory in the Guardian, arguing that "To save the union, Britain will have to find its own Abraham Lincoln."

What Britain needs, he contends, is a charismatic uniter, able to articulate a new unionism in a compelling, soulful way. 

"What is clear, though, is that someone somewhere in British public life has to make a Lincoln-like effort to inspire the better angels of our own nature and to try, again and again, to halt the current fissiparous abandonment to our worse ones." 

Kettle concludes:

"Unless this happens, our house may not stand for long. The chances of that producing a “more advantageous or more satisfactory” outcome are tenuous at best. Who can give believable voice to what needs to be said? It is hard to think of the statesman or woman with the standing to speak for our union. Perhaps an archbishop can attempt it. Perhaps a poet. Where, and who, is our Lincoln?"

The idea that the American civil war was won with words, rather than bodies, blood and Springfield model rifles, is sufficiently daft not to detain us -- but for Kettle to see the challenges for our union in these terms is hopelessly analytically thin and naive. If anything, this emphasis on missing, charismatic leadership can only distract Kettle's unionist fellow travellers from an honest, clear eyed analysis of the complex, deeper problems of British political affect and loyalty which the referendum campaign revealed.

Like the New Labour prophets who told us that Jim Murphy would fix the party's Scottish problems single-handed, the idea that the challenges for the Union can all be answered by a lyrical but homespun Great Emancipator of our own is beyond comic. This is the politics of the West Wing, where the tough, often slow work of social and political change can be done by delivering a splendid speech, as if compelling statements of principle make the world turn. Remind me to ask Barack Obama: how did that work out for you, Mr President?

2 March 2015

Keeping the doing of British government in hand

I recently met a die-hard English unionist who was worried about the dearth of Scottish students attending the great British public schools and to be found in the ornate halls and cloisters of Oxford and Cambridge. At first blush, these anxieties seemed highfalutin and even comical, but what my interlocutor was really worried about was what he saw as the emerging lack of Scottish corporate solidarity with British elite experiences and values. It was essential, he thought, for an admittedly tiny, but he judged, potent minority of young Scots to be enrolled in the stoutly British public sphere not just educationally, but in ineffable common experience, sentiment, and friendship.  

"Give me the child and I'll give you the man" is an old Jesuit boast, and hardly an original insight, but something about his idiosyncratic disquiet and his equally idiosyncratic solution struck me forcibly. Here was a fellow with a sense of the deep crisis of British unionism revealed by the referendum campaign, trying to think longer term, trying to think strategically about how political ideas can be produced, how they are popularised and how they (perhaps even inadvertently) are enfeebled and dissipate. The idea that the Union can be preserved in the longer run by Vows, Commissions and Scotland Acts alone is fanciful. His choice of solution and objects may be peculiar, but he understood this clearly.

After the heart-stopping anxieties of early September, only a remarkably complacent unionist would now think their work complete, and their initiatives, concluded. To see the ongoing political struggle for a popular, winning, organic unionism only in terms of tactical voting against the perfidious separatists in May is colossally to miss the point. The Better Together parties looked deep into the eyes of the Scottish people, and found dealer's eyes peering back at them, unsentimental, commercial, counting the pennies, weighing the odds. 

For pro-union writers such as Alex Massie and Hugo Rifkind, to conduct constitutional debates as double entry accounting was to neglect the urgent, emotional register of continuing union, but the official No campaign essentially conceded the mercurial loyalties of the electorate, accepting the disturbing provisionality of Scots' attitudes to the Union, and piling in with numbers and arguments likely to pique the interest of a canny, and cautious investor. 

That was an effective strategy for the 18th of September 2014, but securing loyalty through anxiety is not a sustainable device for securing continued Union in the longer term. Machiavelli may have judged that it was better to be feared than loved, but folk often forget, he recommended that the prince should aspire to be loved also, and thought "merciful, faithful, humane." The Union may have been temporarily saved by resort to fearful measures, but unless Scots can once again be persuaded to identify emotionally with the British state, none of the policy autonomies granted to Holyrood will be worth a clipped farthing. 

Only a vanishingly small segment of pro-union opinion seems alive to this wider context, and the fundamental challenges it discloses. The Prime Minister has declared the Scottish question, answered. Jim Murphy has shed his unionist skin altogether.  But behind today's news that big infrastructure projects are to bear plaques with Union flags and "Funded by the UK government" labels, we can perhaps detect the beginning of an attempt, as Alistair Carmichael put it, for a "greater presence" of the Westminster government in Scotland after the No vote.  The move has obvious echoes with the now muted, and taken for granted, but significant and symbolically powerful rebranding affected by Alex Salmond's first administration in 2007.  

But it is still about the cold hard cash. And it still does not answer the deeper, more ineffable concerns of my old unionist about how to build the British solidarity found wanting in the run up to last September - and how to retrench Scotland's position in the union using softer, more sentimental means that the hard nuts and bolts of primary legislation and institutional reform. It also reminds me of something I wrote when the Smith Commission's proposals were revealed. Plastering the Union flag across these big projects is a material expression of the idea that the Union must keep large parts of the doing of British government in hand:  

"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."

All of that, in a wee flag.

1 March 2015

"The Battle of Britain is over; the Battle of Britain is about to begin..."

The hurly burly of term and teaching has suppressed my blogging mojo this last week, but Kenny Farquharson asked me to step in to fill in the gap left by a weary Andrew Wilson in the Scotland on Sunday this morning. Unoriginally, for my topic, I took the general election, and the charms and perils of the SNP advancing in Westminster, potentially entering the mainstream of British politics.  I begin by rehearsing a tale which may be familiar to my longterm readers, but it seemed an apposite way of introducing the challenges which face the party, in having its voice heard across the United Kingdom. An excerpt:

"‘GOOD grief, you aren’t a Scottish Nationalist, are you?” The massive, tweedy don inspected me, eyes twinkling with surprise and a kind of benevolent contempt. Determined to skewer this odd specimen of humanity, after a fortifying slurp of claret, he patiently explained to me that I was wrongheaded and mistaken. Like a dim undergraduate in a tricky tutorial, he said, if I thought matters through, I would soon realise the absurdity of the Nationalists and my position."

You can read the whole thing here.