tag:blogger.com,1999:blog-16389160427375261712024-03-18T15:05:51.138+00:00Lallands Peat WorrierCogitations from a Cranachan CairnLallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.comBlogger1108125tag:blogger.com,1999:blog-1638916042737526171.post-79520529335169541892016-12-06T16:20:00.000+00:002016-12-07T08:30:01.074+00:00Sewel: no "constitutional safeguard", just a "self-denying ordinance..."<div class="separator" style="clear: both; text-align: center;">
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By any reckoning, Richard Keen QC is an uncommonly political lawyer. Former Dean of the Faculty of Advocates, and now the UK government's chief adviser on Scots law, Ruth Davidson <a href="http://www.bbc.co.uk/news/uk-scotland-scotland-politics-24939146" target="_blank">appointed him chairman of the Scottish Tories in 2013</a>. While in office, he reportedly summoned the party's MSPs to his "small castle", and subjected them all to a dressing down for being useless. Some disgruntled parliamentarian, ungrateful for this advice, leaked the encounter to the media. This interlude seemed to do his political career no harm. When David Cameron secured his majority in 2015, and the Liberal Democrats were ejected from government, Keen took up Jim Wallace's vacant office of Advocate General for Scotland.</div>
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In that position, Keen appeared before the UK Supreme Court this morning, to speak to the devolved aspects of the ongoing Brexit case. We substantially knew what the Advocate General proposed to argue <a href="http://lallandspeatworrier.blogspot.co.uk/2016/12/a-quintessential-matter-of-political.html" target="_blank">from his written</a> argument, but the Justices afforded him an hour to expand on his points. We may hear from him again, in reply, after the Lord Advocate has made his submissions on behalf of the Scottish Government on Wednesday. </div>
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Keen's message to the Justices was characteristically trenchant and forthright -- but you have to wonder whether it was politically wise. Keen's argument is essentially a simple one. Parliament is sovereign. Nothing in the devolution settlements changes that. Indeed, the Scotland Act specifically recognises that Westminster retains competence over foreign affairs, including EU negotiations. It also retains power to legislate concerning devolved matters. Parliament is sovereign. It can make or unmake any law: the Scotland Act is no exception. </div>
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Where this gets controversial, however, is when we turn to the so-called "Sewel convention". Since 1998, Westminster has recognised that it will not legislate for devolved matters without the consent of Holyrood. What do we mean by devolved matters? Generally, this has been understood as (a) passing legislation which falls within Holyrood's powers, or (b) changing the legislative competence of Holyrood by adding or subtracting from its authority, by devolving more powers, or re-reserving powers which were once reserved. </div>
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But this convention gave Holyrood very limited legal protection. In states with codified and entrenched constitutions, the central government does not have the power to abolish regional parliaments, or to intrude on their competencies. The courts would block any attempt to do so. Some people wondered: why should Scotland be any different? Shouldn't the permanence and privileges of Holyrood also receive some legal protection?</div>
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In the wake of the 2014 independence referendum, <a href="http://webarchive.nationalarchives.gov.uk/20151202171017/http://www.smith-commission.scot/wp-content/uploads/2014/11/The_Smith_Commission_Report-1.pdf" target="_blank">the Smith Commission report</a> agreed that"the Scottish Parliament will be made permanent in UK legislation" and that the Sewel convention should be "put on a statutory footing". Both of these commitments were reflected in sections <a href="http://www.legislation.gov.uk/ukpga/2016/11/contents/enacted" target="_blank">one and two of the 2016 Scotland Act</a>. But did these "constitutional protections" really make much difference? In the political domain, David Mundell and his colleagues made much of these concessions. The statutory recognition of Sewel and Holyrood's permanence were important, they said, meaningful.</div>
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That claim lies in ruins this afternoon, after Richard Keen's Supreme Court submissions. So what did he say? Characterising this statutory recognition of the convention as "a self-denying ordinance", Keen continued, it was only "a political restriction upon Parliament's ability to act, no more and no less than that" and in no sense any "qualification or inhibition upon parliamentary sovereignty."</div>
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This is all very well and good, you might well think, before 2016. From 1999 - 2016, Sewel <i>was</i> just a political convention. You didn't find it in any law. But surely the Scotland Act must make some kind of difference? Surely there was some <i>point </i>in including Sewel in the 2016 Act? If there wasn't, if the idea Westminster will not "normally legislate for devolved matters without consent" is just empty words, just hot political air, then why the devil did MPs do it? </div>
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The same thought struck Lord Sumption during the hearing. "But it cannot be described as a purely political force once it is enacted in a statute?" he asked. "Do you submit its incorporation as an Act of Parliament makes no difference to its legal effect?" he wondered.<br />
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Richard Keen's answer was consistent with the orthodox logic of his submission - but it remains politically stark. Yes, he said. The statutory recognition of Sewel is of no legal significance whatever. "The correct legal position", he concluded, is that Westminster "is sovereign, and may legislate at any time on any matter."As Graeme Cowie observed in the <a href="http://lallandspeatworrier.blogspot.co.uk/2016/12/a-quintessential-matter-of-political.html" target="_blank">comments at the end of my last blog</a>, "anyone paying even the most superficial of attention knew sections 1 and 2 of the Scotland Act 2016 were weasel words."<br />
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That may be true of constitutional scholars like Graeme. But for ordinary folk who followed the passage of the Scotland Act through Westminster and Holyrood, who listened to David Mundell's defence of its provisions -- Richard Keen's uncompromising submissions today may come as something of an unwelcome surprise.<br />
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Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.com1769tag:blogger.com,1999:blog-1638916042737526171.post-33447364004829651402016-12-01T15:59:00.001+00:002016-12-01T17:12:20.805+00:00"A quintessential matter of political judgment for Westminster..."<div class="separator" style="clear: both; text-align: center;">
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Last Friday, the Lord Advocate published the Scottish Government's intervention in the ongoing Brexit litigation <a href="http://lallandspeatworrier.blogspot.co.uk/2016/11/ane-absolute-power-to-cass-annull.html" target="_blank">before the UK Supreme Court</a>. James Wolffe QC weighed in behind the Divisional Court's judgment, arguing that the royal prerogative cannot lawfully be used to trigger Article 50. But Scotland's senior law officer also ranged beyond that. He points to the <a href="http://www.gov.scot/About/Government/Sewel/KeyFacts" target="_blank">Sewel convention</a>, arguing that if Westminster legislates to withdraw the UK from the European Union, the Scottish Parliament must be consulted. </div>
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The Lord Advocate isn't arguing that Holyrood has a veto -- but that the UK constitution now expects MPs to canvas the view of MSPs before legislating on devolved matters. Modern understandings of the Sewel convention generally recognise that it has two limbs. Firstly, that Westminster ought to seek the consent of Holyrood before changing Scots law on issues falling within the Scottish Parliament's purview, like health, or education, or family law. And secondly, that any changes to the powers of the Scottish Parliament itself ought to take account of MSPs' views. The same goes for any changes to the power of Scottish Ministers, whether enhancing or curtailing their legal authority.</div>
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This afternoon, the <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/574047/Supplementary_Supreme_Court_Printed_Case_of_the_Secretary_of_State_for_Exiting_the_European_Union.PDF" target="_blank">UK government have published their counterblast against the Lord Advocate's submissions</a> (and parallel arguments, made by the law officers of the Northern Irish and Welsh administrations). You could only expect <a href="https://www.parliament.uk/biographies/lords/lord-keen-of-elie/4538" target="_blank">Richard Keen</a> and his colleagues to resist James Wolffe's arguments, but as <a href="https://twitter.com/jjmitchell" target="_blank">Jonathan Mitchell QC</a> tweets this afternoon, the UK government's legal answers have a "strangely tetchy" tone, "supercilious and ill-tempered". Seasoned barrister Sir <a href="https://twitter.com/sirpauljenkins/status/804341603640938497" target="_blank">Paul Jenkins</a> couldn't "recall a case where the government thought it wise to descend to such rudeness", which he describes as "unnecessary and inappropriate." Jo Maugham QC characterises the submissions as<a href="https://twitter.com/JolyonMaugham/status/804340239196180480" target="_blank"> "fantastically"</a> so.<br />
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In a nutshell, they are that devolution is irrelevant to the issues before the Court, that foreign affairs is reserved, and that ""the devolution legislation cannot add to the arguments" in the case "in any material way." But perhaps most eye-catching, are the UK government's observations on the need to seek consent from any of the devolved legislatures. "The Court is being invited ... to stray into areas of political judgment rather than legal adjudication." They argue the Supreme Court "should resist that invitation."</div>
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So how do they reach this conclusion? While recognising that the statutes establishing Edinburgh, Belfast and Cardiff assemblies are "very significant pieces of legislation", they contend that the Sewel convention is not justiciable - which is to say, unsuitable for judicial decision-making. It is, they say, a "legal irrelevance", just a "political convention", and not part of UK constitutional <i>law</i>. In support of this view, they cite Lord Reed -- one of the justices who will hear this case, In 2012, in the <i>Imperial Tobacco</i> case, Lord Reed described the convention as a “political restriction on Parliament’s ability to amend the Scotland Act unilaterally" -- not a legal restriction.</div>
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And as far as this goes, this is a perfectly orthodox account of the status of constitutional conventions in the UK. They have generally been regarded as "rules of constitutional morality", rather than rules of constitutional law, susceptible to enforcement by the court. But where the UK government's case hits a potential wrinkle is that Westminster <i>chose </i>in 2016<i> </i>to inscribe this convention on the face of the <a href="http://www.legislation.gov.uk/ukpga/2016/11/part/1/crossheading/the-sewel-convention/enacted" target="_blank">Scotland Act</a>. They simultaneously "<a href="http://www.legislation.gov.uk/ukpga/2016/11/part/1/crossheading/the-scottish-parliament-and-the-scottish-government/enacted" target="_blank">recognised" the "permanence"</a> of the Scottish Parliament. </div>
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While Lord Reed was absolutely right in 2012, that the Sewel convention was only a political restriction Westminster had undertaken to abide by, this isn't straightforwardly the case in 2016. The UK government's submission - strikingly - has nothing whatever to say about this change, and the impact it might have on their arguments about the justiciability and enforceability of the convention. Back in 2014, Professor Mark Elliott <a href="https://ukconstitutionallaw.org/2014/11/28/mark-elliott-a-permanent-scottish-parliament-and-the-sovereignty-of-the-uk-parliament-four-perspectives/" target="_blank">tacked up this informative article</a> about the different potential legal effects of these innovations. In its legal papers, the UK government body-swerves these implications altogether.</div>
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So does the statutory recognition of Sewel change anything? Maybe. Maybe not. As a number of us pointed out at the time, David Mundell formulated this statutory recognition in a consciously sleekit way. The new Scotland Act recognised only that "the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament." "Normally" isn't a word you encounter very often in statutes. "Must" and "may", certainly. But not "normally." </div>
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UK lawyers, unsurprisingly, have hung up their wigs on these words. Referring to the Scotland Act, they suggest the convention "does not purport to prescribe an absolute rule." Its content is only that “Westminster would not normally legislate” And here is the kicker. They argue that:<br />
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You didn't hear this kind of reasoning - at least in public - when <a href="https://www.gov.uk/government/news/david-mundell-new-parliament-new-powers-new-partnership-speech" target="_blank">David Mundell was talking up the virtues of the new</a> Act, invoking the idea of a "new parliament, new powers, and new partnerships."</div>
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For the UK government lawyers, we end with the orthodox Diceyan vision of the tyrannical patriarch, and the erratic father figure never needs to keep his word, or follow his own rules. Whatever forms of "legal recognition" or apparent constraints Westminster inscribes on its constitutional legislation, "the Westminster Parliament is sovereign and may legislate at any time on any matter ... any attempt to enforce the convention directly or indirectly would be a straightforward impingement on that sovereignty." </div>
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Theresa May's legal counsellors may be resisting any attempt for parliament to take back control over Brexit, but they take Holyrood's subordination to Westminster for granted. For Richard Keen and his colleagues, power devolved is ultimately power retained, whatever political grace notes ministers write into the latest iteration of devolution, whatever our constitutional statutes anticipate and provide. And if the strident, haughty tone of this reply is anything to go by -- how <i>very dare you</i> argue otherwise. </div>
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You can read the <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/574047/Supplementary_Supreme_Court_Printed_Case_of_the_Secretary_of_State_for_Exiting_the_European_Union.PDF" target="_blank">whole UK government submission here</a>.<br />
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Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.com66tag:blogger.com,1999:blog-1638916042737526171.post-38292719477823816822016-11-26T13:11:00.003+00:002016-11-26T13:48:04.719+00:00"Ane absolute power to Cass, Annull & Dissable -- Contrair to Law..."<div style="text-align: justify;">
<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhgWzG90DmAxuJKG8jx41pOu1pxd9BOkhcMdIXI_1KAjakWDxMigk0y-8KljA4L__LmCTbAX5PQ4rgP-h0PYJKmsmFZbqIoo89_TLTIx6vJn8joVw6-fppTnD_McsHwFR9D-WwcC6h3IhV2/s1600/james.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhgWzG90DmAxuJKG8jx41pOu1pxd9BOkhcMdIXI_1KAjakWDxMigk0y-8KljA4L__LmCTbAX5PQ4rgP-h0PYJKmsmFZbqIoo89_TLTIx6vJn8joVw6-fppTnD_McsHwFR9D-WwcC6h3IhV2/s320/james.jpg" width="193" /></a>Last night, the Lord Advocate James Wolffe QC <a href="http://www.gov.scot/Resource/0051/00510602.pdf?utm_medium=social&utm_campaign=SocialSignIn&utm_source=Twitter" target="_blank">published the Scottish Government's written intervention</a> in the Article 50 litigation. The case is scheduled to be heard by all eleven of the UK Supreme Court's Justices between the <a href="https://www.supremecourt.uk/news/interveners-article-50-brexit-case.html" target="_blank">5th and 8th of December</a>. </div>
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It is, as you'd expect, a weighty legal document which you may not find instantly digestible. A <a href="http://www.heraldscotland.com/news/14929797.SNP_government_turns_to_Act_of_Union_over_Brexit/" target="_blank">quick scan</a> throws up a range of old constitutional familiars: the Claim of Right Act 1689, the Act of Union, the Sewel convention -- and even our old friend <i>MacCormick v Lord Advocate</i>. But what does all this mean? When you boil it all down, what is the Scottish Government really arguing for in the Brexit hearing? </div>
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In a nutshell, James Wolffe is pursuing two distinct lines of argument. The first focuses on whether ministers can use the royal prerogative to activate Article 50 and the United Kingdom's departure from the European Union. The second concerns the so-called "Sewel" convention. Is Holyrood's consent constitutionally necessary, if Article 50 is to be activated? </div>
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Let's start with the first line of argument. The royal prerogative is the name given to the <a href="https://en.wikipedia.org/wiki/Royal_prerogative_in_the_United_Kingdom" target="_blank">residual legal powers of the crown</a>. Its exercise entitles Her Majesty's government to enter treaties with foreign powers, or even to declare war, without reference to parliament. Earlier this year, the three judges of the <a href="https://www.judiciary.gov.uk/judgments/r-miller-v-secretary-of-state-for-exiting-the-european-union/" target="_blank">Divisional Court</a> held that Theresa May's government could not use the foreign affairs prerogative to activate Article 50. The Lord Chief held that Westminster must pass legislation, to begin disentangling Britain from the EU, and stripping away the rights in domestic law connected to it. The Scottish Government have weighed in behind this argument, but appeal to different sources.</div>
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The Lord Advocate invokes the preamble to the Claim of Right Act, passed by the old Scottish Parliament in 1689 in the aftermath of the eviction of King James VII and II from the country and the throne. Parliamentarians slammed James for having corrupted his rule "from a legall limited monarchy to ane Arbitrary Despotick power and in a publick proclamation asserted ane absolute power to cass annull and dissable all the lawes." Their 1689 Act states any attempt to use crown authority to "cass, annull and dissable" laws was itself "Contrair to Law." </div>
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Here, the 1706 and 1707 Acts of Union warrant a passing mention. As James Wolffe points out, Article XVIII of the Acts provides that "all other laws in use, within the Kingdom of Scotland, do after the union and notwithstandng thereof, remain in the same Force as before ... but alterable <i>by the Parliament of Great-Britain.</i>" Notice the critical point here. "At the foundation of the United Kingdom, it was Parliament ... and not the Crown, which was given power to change the law of Scotland." Read together, he suggests, these sources confirm the Divisional Court's judgment that it is for parliament -- not the crown in exercise of its royal prerogatives -- to alter the law of the land. </div>
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Here the Scottish Government's argument shifts forwards, towards more contemporary sources. Wolffe argues that if Theresa May was entitled to use the prerogative to activate Article 50, its effect would hollow out a range of laws currently applicable in Scotland, including the Scotland Act, which "assumes the UK, including Scotland, is a member of the EU." The devolution legislation requires Holyrood to respect the rules and regulations of EU law. So too must Scottish ministers. "The effect of withdrawal from the EU", he contends, would be to "cass, annul or disable" these provisions - a step which the Lord Advocate concludes "may not, compatibly with the Claim of Right Act 1689, be effected by an act of the prerogative alone."</div>
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If the Supreme Court accepted this line of argument, it would be for the Westminster parliament to legislate for Article 50. But where stands Holyrood then? Here, the Lord Advocate's case shifts onto different terrain, and its second main theme. Is Holyrood's consent required or not to legislate for Article 50? As AV Dicey famously maintained, Westminster is sovereign under the British constitution. Between 1707 and 1998, MPs legislated for Scotland. Devolution didn't deprive the UK parliament of this power. This is recognised in the Scotland Act 1998 itself. <a href="http://www.legislation.gov.uk/ukpga/1998/46/section/28" target="_blank">Section 28(7)</a> stresses that devolution "does not affect the power of the Parliament of the United Kingdom to make laws for Scotland." </div>
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But since 1998, the interaction between the two parliaments has been governed by a <a href="https://en.wikipedia.org/wiki/Constitutional_conventions_of_the_United_Kingdom" target="_blank">constitutional convention</a>, sometimes called the Sewel convention. The <a href="http://www.legislation.gov.uk/ukpga/2016/11/section/2/enacted" target="_blank">Scotland Act 2016</a> recognised the long-standing rule of constitutional morality that Westminster "will not normally legislate with regard to devolved matters without consent." This convention is generally regarded as having two limbs. Firstly, if the UK parliament wants to pass legislation in areas lying within Holyrood's powers - on health say, education, or family law - MPs should seek consent from MSPs. But beyond that, if Westminster legislation would expand or contract the powers of Scottish Parliament or its ministers, this too requires consent. A good example of this was the additional powers devolved by the Scotland Act 2016 itself.</div>
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In his brief, the Lord Advocate argues that "withdrawal of the UK form the EU would alter the competence of the Scottish Parliament and Government, and the law applicable in Scotland within devolved competence. A Bill to authorise withdrawal would accordingly engage the legislative consent convention." Holyrood's consent, he says, must be sought. </div>
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For the sake of argument, let's say that the UK Supreme Court agree with him. Then what? Does the convention have any legal teeth? Consider, for example, the eminently plausible scenario, that the majority in Holyrood refuses to give its consent to any Article 50 Bill, unless the UK government commits to pursuing the gentlest Brexit possible. Say also that Theresa May is unwilling to bow to this pressure, and presses on with an Article 50 Bill and the hardest of hard Brexits. Is the Lord Advocate seriously suggesting Holyrood has the legal power to frustrate Westminster? In law, does the Scottish Parliament hold a Brexit veto? The answer may disappoint you, and irate headline writers everywhere. </div>
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If you read the Scottish Government's submissions carefully, they actually conclude Holyrood has no legal power to "block" an Article 50 Bill passed by Westminster. If the UK parliament were to choose to pass an Act of Parliament without Holyrood's consent, the Lord Advocate concedes, "the courts could not decline to recognise the validity of the resulting Act." He accepts that Holyrood has no <i>legal</i> trump over Brexit. Politically, of course, overriding Holyrood and ignoring its objections would embroil the two governments and parliaments in a potentially poisonous constitutional crisis. </div>
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And it is this opportunity to put Theresa May under <i>political</i> pressure which the Lord Advocate seems to be angling for in this intervention. What he is looking for is a direction from the Supreme Court that <i>constitutionally</i>, Holyrood should be consulted about any Article 50 Bill, whether or not Westminster respects Holyrood's conclusions. This, he suggests, "would not involve an impermissible interference with proceedings in Parliament" and would represent the Court fulfilling "its proper function of identifying the constitutional requirements."</div>
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It remains to be seen whether either of these lines of argument prosper. You <a href="http://www.gov.scot/Resource/0051/00510602.pdf?utm_medium=social&utm_campaign=SocialSignIn&utm_source=Twitter" target="_blank">can read the whole submission for yourself here</a>.</div>
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Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.com151tag:blogger.com,1999:blog-1638916042737526171.post-5960457820450874442016-11-22T14:57:00.001+00:002016-11-22T15:17:18.271+00:00Lord Carloway's right to silence<div class="separator" style="clear: both; text-align: center;">
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Earlier this year, the Scottish Parliament's Justice Committee <a href="http://www.parliament.scot/parliamentarybusiness/CurrentCommittees/100984.aspx" target="_blank">launched an inquiry</a> into "the role and purpose of the Crown Office and Procurator Fiscal Service," to focus on:</div>
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<i><i>"... its core role and examine the effectiveness and efficiency of the COPFS, how well it works with its stakeholders, and the support it provides to witnesses and victims of crime. The Committee will also examine its responsiveness to new challenges and opportunities, such as the evolving nature of crime and advances in technology."</i></i></div>
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How Scotland's independent prosecutors are functioning seems just the kind of thing which ought to interest our parliament's lead committee in justice matters at the best of times. But these are not the best of times for Scotland's independent prosecution service. The Lord Advocate's department hasn't been immune from the <a href="http://www.crownoffice.gov.uk/images/Documents/Finance/COPFS%20Annual%20report%20%20Accounts%20for%20the%20year-ending%2031%20March%202016.pdf" target="_blank">belt-tightening across Scottish budgets</a>. And new priorities are always accumulating.</div>
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The <a href="http://www.heraldscotland.com/news/13779630.Pressure_mounts_on_sheriff_court_system/?c=y05hhjwzozjr3g88semi" target="_blank">stresses and strains of trying to do more with less</a> in our criminal courts are showing. Just a couple of days ago, the government's <a href="http://www.scotsman.com/news/politics/bullying-and-workloads-hit-morale-of-criminal-justice-staff-1-4292790/amp" target="_blank">People Survey</a> yielded some ambivalent evidence about Crown Office staff's experience of their working environment. Early in September, a number of senior lawyers expressed concerns about Crown Office capacity. Seasoned criminal silk, <a href="http://www.heraldscotland.com/news/homenews/14736437.display/" target="_blank">Brian McConnachie QC, feared</a> that Scottish prosecutors: </div>
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<i>"... don’t have the kind of resources they require to properly carry out the prosecution of crime from low level Justice of the Peace courts all the way up to the most serious crimes in the high court. It does seem that there are cases that are not being properly prepared, cases having to be put off on numerous occasions because COPFS has had trouble finding witnesses or providing full disclosure to the defence." </i></blockquote>
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Mr McConnachie's observations may be well founded or not -- the Justice Committee inquiry is an excellent opportunity for a candid assessment of the challenges facing modern prosecutors in a time of spending constraint. To build a complete picture of how procurators fiscal are doing, Parliamentarians hoped to speak to a wide range of folk who interact with prosecutors -- including judges. But MSPs face a challenge this morning, as the <a href="http://www.heraldscotland.com/news/14919243.Scotland_s_top_judge_accused_of__stifling__Holyrood_justice_inquiry/" target="_blank"><i>Herald </i>reports that the Lord President</a> - Lord Carloway - has written to his fellow judges, telling them that <i>he</i> wouldn't be giving evidence to MSPs, and that he expected every serving judge in Scotland to follow his example, from High Court judges down to Justices of the Peace. This isn't a wholesale refusal to cooperate. The committee will have the benefit of the judicial perspective in written submission from the Scottish Courts and Tribunal Service.</div>
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In response, the new Tory justice spokesman in Holyrood, Douglas Ross makes a fair point: "It seems astounding that judges or sheriffs wouldn't be in a position to give evidence on the Crown Office. They are watching it in action every day and seem like they would be ideally placed to speak to the Justice Committee on what needs to be improved," he said. So what is Lord Carloway's explanation for this <i>prima facie</i> curious refusal to appear before parliament? The Justice Committee have published the full text of the Lord President's letter, which sets out his reasons for this policy. And I must say, I find them extremely unpersuasive.</div>
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Lord Carloway expresses a series of objections. In the first place, he suggests it would be "constitutionally" improper for him - or any other judge - to meet MSPs "informally" to discuss the inquiry. "Any such meeting would require to be a public one," he argues, for reasons of transparency and because any comments or criticisms" of prosecutors should be made in a forum which allows them "to respond properly." This seems eminently reasonable. Judges shouldn't conduct whispering campaigns or backroom briefing against the lawyers who appear before them. Natural justice demands a more open process -- a process best served, you might well think, by judicial <i>participation </i>in public hearings, rather than boycotting them.</div>
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But here we turn to Carloway's second objection, and here the Lord President loses me. He begins on an admirable note of modesty. He worries he may not be best placed to speak to prosecutors' systematic effectiveness: "it is difficult for the Lord President to comment on the overall efficiency and effectiveness of COPFS as, sitting as a judge, he sees only a part of the work of COPFS; in effect the end product of the Crown's work. Inevitably that is a very limited perspective. It would be inappropriate to draw conclusions based on subjective experience of a small pool of cases and therefore a narrow view of these matters." But he also extends this logic to his brother and sister judges. His legal secretary writes: "He does not consider that individual judges and sheriffs are in a position to comment on the various issues, given that such comments would be based either on anecdote or an incomplete understanding of the facts."</div>
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This is a baffling rationale for barring his judicial colleagues from giving evidence. <a href="https://twitter.com/ProfChalmers" target="_blank">Professor James Chalmers</a> put the central point neatly this morning. "If anyone had a 'complete understanding', the Committee could just interview them and be finished in an afternoon." This is basic social research. You don't have to know everything about an organisation to be able to say something significant about your experience of how well it works. Of course, this perspective will be limited. Of course, we should be cautious about drawing wide-ranging conclusions from witnesses with partial perspectives.</div>
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But contrary to the Lord President's assertions -- judicial experience isn't just empty anecdote or irrelevant subjectivity. Judges see the law in action. It seems perverse to argue that just because judges don't know <i>everything </i>about how the Crown Office operates, they shouldn't share any of their many informed impressions about the quality of the "end product" of prosecutors' work. And after all, aren't its "end products" quite important, in evaluating the effectiveness and efficiency of an organisation? </div>
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Lord Carloway - who deals almost exclusively with appeals work - may be unable to speak to the effectiveness mass of routine prosecutions for lower level offending which takes place, for example, in Glasgow Sheriff Court. But why prohibit those judicial officers <i>do </i>have that insight from sharing their experiences with parliament? </div>
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It is not as if the Appeal Court maintains a self-denying ordinance in these matters. Lord Carloway and his colleagues fairly often pass general comment on how Crown Office lawyers handle their cases, extrapolating from individual facts and circumstances to more general problems and challenges faced by prosecutors. A single case might be an "anecdote" -- it might also neatly encapsulate problems which are more systematic. This is precisely what Margaret Mitchell's Committee is trying to do, according to their own lights. </div>
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<i>Of course</i> individual judges don't have a complete picture of the issues facing COPFS, but they must have a perspective which could usefully add to that picture. Ultimately, it is for MSPs to pull that picture together. It is for parliamentarians to weigh up the credibility and reliability of the evidence they hear. It is for them to make the judgements about how far they ought to extrapolate from witnesses' observations, and how far they should treat the evidence they hear with caution. Lord Carloway invokes constitutional propriety in his letter. Just how constitutionally appropriate is it for the Lord President to take it upon himself effectively to decide these questions for the Committee in advance? Strange times.</div>
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Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.com41tag:blogger.com,1999:blog-1638916042737526171.post-1580824035352679662016-11-02T16:51:00.001+00:002016-11-02T17:35:48.685+00:00Escaping the Mire<div class="separator" style="clear: both; text-align: center;">
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Longstanding readers of this blog know what I think about the Offensive Behaviour at Football Act, and the events which led to its introduction. Alex Salmond seized on an Old Firm fracas in 2011, arguing that this so-called "shame game" required special legal measures.<br />
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Elected with a majority in the Holyrood election of that year, there was no restraining the former First Minister. He tapped unlucky Roseanna Cunningham to be the ministerial face and voice for a policy which was justified by sweeping populist rhetoric, but which was fundamentally reckless and un-thought-through.<br />
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A succession of embarrassing ministerial performances followed, in the chamber, and in the media. Kenny MacAskill sputtered "matters" relentlessly on <i>Newsnicht</i>. Roseanna suggested, depending on the context, that genuflecting or singing the national anthem might get you a jail term under the new rules. Unlucky civil servants were drafted in to give legislative shape to ministers' vague aspiration to use the criminal law still further to intervene in the regulation of fan behaviour in and around football matches.<br />
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Folk in parliament rhubarbed. Folk outside parliament rhubarbed. Folk <i>inside</i> the SNP rhubarbed, including elected members, who nevertheless, cast their votes for the measure under the stern gaze of party whips. I remember taking to the airwaves against - now - Green MSP John Finnie. In those days, he was a Nationalist politician, and vociferously defended the legislation, accompanied by retired coppers and politically-helpful prosecutors from the Crown Office. None of this eliminated the fundamental problem with the law. </div>
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To borrow a phrase from one of Scotland's judges, it was "mince." Certainly, the Act "sent a message" to hooligan elements who hover around football clubs and matches. But that message was as muddled and confused as the legislative provisions themselves. Polling evidence showed - and has shown since - that the Act is supported by a majority of the public. But popularity doesn't transform a bad, paradoxical law into a good law. Being a lawyer, these problems perhaps excessively preoccupy me. But even if you are broadly supportive of the idea of prohibiting threatening and hateful speech in football grounds and outside them -- you still can't escape the conclusion that in 2011, Scottish ministers had no idea what they were doing, or why they were doing it, or why they were doing so on an "emergency" timetable. It was a picture of recklessness. </div>
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<a href="http://www.legislation.gov.uk/asp/2012/1/crossheading/offensive-behaviour-at-regulated-football-matches" target="_blank">The Act</a> they left behind them is an appropriate testament to their cack-handedness. Getting your head around what the legislation does and does not criminalise can be tricky. That's one of the failings of the law. But it outline: it creates two new criminal offences: (1) offensive behaviour at football, and (2) threatening communications. The first offence applies in a range of locations. If you are in and around the ground of football matches, or on a journey to and from the grounds, it applies to you.<br />
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It also applies to you if you are in a public space, with a regulated match playing in the background. If you begin shouting and bawling at folk on their way to matches, the Act catches you too. There are some paradoxes about this. The law treats you as "on a journey" to a match, whether you attend, or even <i>intend to attend</i> a match. This even includes overnight breaks. Philosophically, we are all, potentially, on our way to a regulated football match. At least according to parliament.</div>
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But the new crime focuses on offensive behaviour. The law recognises different kinds of bad behaviour. It criminalises "expressing hatred" against groups or individuals, on the basis of their perceived religious affiliations, or on the grounds of sexuality, disability, nationality or race. This might be singing "the Famine Song," or saying "I hate the Orange Order", as you prop up a bar in which the <i>Greenock Morton v Partick Thistle</i> match is playing in the background.<br />
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But the law also extends to "threatening" behaviour, and -- most controversially -- "behaviour the reasonable person would find offensive." The old common law offence of breach of the peace only criminalised behaviour which could "alarm the ordinary person" and "threaten serious disturbance in the community." The OFBA goes far further. The old offence of breach of the peace was certainly vague. Making "offence" the criterion for a criminal offence is even more problematic.</div>
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Recognising this, SNP ministers introduced what they characterised as a "safeguard." It wasn't enough for behaviour to be hateful, threatening, or offensive. In order to be punished under the new Act, it had to be "likely to incite public disorder." This sounds like a high hurdle for prosecutors to overcome. The SNP's justice team represented it as such to the Scottish Parliament's Justice Committee. But the detail of the law blew the lid from this "safeguard." </div>
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Why? Because in the absence of any <i>actual</i> members of the public to be scandalised into violent disturbances by offensive behaviour, the Act instructs sheriffs to <i>invent</i> turbulent soccer fans or supporters who might have been provoked into violence by the offensive singing, or banners, or behaviour. The Act provides that courts should discount the fact that "persons likely to be incited to public disorder are not present or are not present in sufficient numbers." Defenders of the OBFA often claim that they are objecting about sectarian singing "in context." But the Act <i>specifically</i> requires prosecutors, police and courts to ignore the real context where songs are being sung, or behaviour is taking place. </div>
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Singing <i>the Sash</i> in die-hard loyalist pub, for example, is unlikely to generate any mischief. But ministers were determined that this kind of - unattractive - behaviour should be prohibited by the legislation. In so doing, they made a mockery of the idea that the "public order" test was any meaningful limitation to the broad new offences created by the Act. </div>
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So what's to be done? Repealing the Act <i>simpliciter</i>? As defenders of the legislation point out, what kind of message would that send to the diehard bigots, mischief-makers and trolls? And for that matter, what alternative is the opposition in the Scottish Parliament proposing? It is all very well to carp from the sidelines, but what constructive solution are James Kelly and his allies offering? Those are the Scottish Government's lines in today's spinwar. But there are a few obvious, practical solutions which the Cabinet Secretary for Justice, Michael Matheson, ought to be considering. </div>
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In passing <a href="http://www.legislation.gov.uk/asp/2012/1/crossheading/offensive-behaviour-at-regulated-football-matches" target="_blank">the Act in 2012</a>, Holyrood gave ministers considerable power to amend the most controversial parts of the legislation. We don't need new legislation to strip out the "behaviour the reasonable person considers offensive" provision of the Act. <a href="http://www.legislation.gov.uk/asp/2012/1/section/5" target="_blank">Section 5 of the OFBA</a> gives Michael Matheson the power to strike that provision from the statute book tomorrow. You'd be left, criminalising "expressions of hatred", and "threatening" behaviour.<br />
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It would be an altogether tougher spot, for Mr Kelly to defend abolishing those offences. Unless, that is, you approve of threatening behaviour in sports grounds. But the Act goes further. It also empowers ministers to draw a line through the daft provision, which instructs judges to invent potential incitees to public disorder. Again, this wouldn't require new legislation. Michael Matheson need only lay the order before Holyrood, and MSPs need only vote for it.</div>
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If the Scottish Government took both of these steps, the law would be considerably tightened. Procurators fiscal would have to establish (a) hateful or (b) threatening behaviour, and beyond that, they'd also have to establish that behaviour was "likely to incite public disorder" in the <i>real</i> context in which it takes place. That is a far higher test for prosecutors to satisfy, and doesn't transport our sheriffs to a fantasy land of invisible, touchy Queen of the South fans, or furious Dons, tired of unsubstantiated allegations of sheep-shagging.<br />
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If these reforms were introduced, in a trice, the Scottish Government would have eliminated the Act's most controversial (and badly thought-through) sections. The temperature would be turned up considerable on the opposition -- some of which is principled, but a good part of which is calculating, shallow and partisan. </div>
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There is no shame in admitting you got things wrong. It was a bad Bill, introduced after a bad process, badly defended and badly enforced. To a significant extent, the outgoing FM must bear the burden of having foisted this inconvenient controversy on his successor. But there are obvious opportunities here for Nicola Sturgeon's government to revisit its errors, to make the law better, <i>and </i>to turn up the heat on their opponents.<br />
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As things stand -- the Scottish Government seems confident it can win the PR battles against James Kelly and his allies. It seems to have given scanty thought to reform, and to seizing the initiative from the serried ranks of their opponents. They seem primed to stare defeat in the face, but well-prepared to grouse about it. But for <i>this </i>critic of the legislation, they can do much, much better than that. They said they believed in this measure. Let them fix it. If they don't take these opportunities, they have only themselves to blame.</div>
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Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.com35tag:blogger.com,1999:blog-1638916042737526171.post-92107125467159948872016-10-06T16:55:00.004+01:002016-10-06T17:27:00.915+01:00Legally, can Holyrood "block" Brexit?<div class="separator" style="clear: both; text-align: center;">
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"100 days on from the referendum and with up to six months until the triggering of Article 50 it is time the government got serious and put our economic interests and membership of the single market at the front of their negotiating plans. With a clear majority in the Scottish Parliament for retaining membership of the single market - expressed as recently as last week - it is difficult to envisage the circumstances in which the Scottish Parliament would give consent to any legislation that did not guarantee this."</div>
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So said Nicola Sturgeon's Bexit minister, Mike Russell. But what did he mean? What precisely can and can't Holyrood do, in resisting the many-layered legal complexities of Brexit? Several souls have asked me about this other the last day or two. So here's the lightweight primer on the law. Brace yourself. It gets a bit tricky.</div>
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First thing's first: Holyrood has no legal power to veto or block Brexit. Start with the basics. Under <a href="http://www.legislation.gov.uk/ukpga/1998/46/schedule/5" target="_blank">Schedule 5 of the Scotland Act</a>, foreign affairs – including Britain’s relations with the EU – are matters reserved to Westminster and Whitehall. Under section 29 of the legislation, Holyrood is prohibited from passing its own laws concerning nuclear weapons, defence, and so on. Legally, these are Westminster's purview. And because they are Westminster's purview, MPs and the UK government, don't need the Scottish Parliament's permission to alter the law on reserved matters. </div>
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But there are some kinds of Westminster legislation which <i>do</i> require the nod from MSPs. This isn't a matter of strict law - but of <a href="https://en.wikipedia.org/wiki/Constitutional_conventions_of_the_United_Kingdom" target="_blank">constitutional convention</a>. This convention was set out in <a href="http://www.legislation.gov.uk/ukpga/2016/11/section/2/enacted" target="_blank">section two</a> of the 2016 Scotland Act. "It is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament," it said. As I pointed out at the time, you can feel the caveats in the statutory language: "normally", "recognised." Whitehall's clear view is that this section doesn't limit the sovereignty of the London parliament to make or unmake any law whatever, irrespective of Holyrood's complaints. </div>
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But this statutory recognition includes only part of the convention. The UK government has consistently recognised that Holyrood's consent is necessary, if Westminster wants to change the legislative competence of the parliament, or to add or subtract from the executive competence of Scottish ministers. One good example of that was the 2016 Act itself. David Mundell recognised that the Edinburgh parliament had the right to refuse the new powers, and a vote was taken. </div>
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This convention proves some - very limited - constitutional security for Holyrood from the prospect of Westminster abusing its sovereignty to reverse its decisions in devolved areas. But it doesn't apply beyond that. Holyrood’s consent clearly is not necessary to activate Article 50. Only politics can prevent the hard Brexiters in the Tory government from dragging us out of the single market.</div>
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Through some creative lawyering, you <i>might just </i>be able to cobble together an argument and get a case up on its feet. <a href="https://www.theguardian.com/world/2016/oct/04/ireland-to-seek-special-status-to-keep-open-border-with-uk-amid-hard-brexit-fears" target="_blank">In the High Court in Belfast</a>, litigants are attempting precisely this. But their chances of victory are remote. The court case is really about boosting the political salience of the situation in Northern Ireland. As someone tweeted as me, in response to <a href="http://www.thetimes.co.uk/article/tory-softy-crushed-by-rock-of-hard-brexit-76lss6n76" target="_blank">my <i>Times</i> column this morning</a>, if Scotland counts for "nothing" in Brexit Britain, how much the worse for Ulster and its people? </div>
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So that's the bottom line. Holyrood's consent is only needed if Westminster wants to legislate about devolved matters. But even then -- failure to give consent can be overriden by the exercise of parliamentary sovereignty. So what, then, can Mike Russell <a href="http://www.bbc.co.uk/news/uk-scotland-37535518" target="_blank">have meant when</a> he said Holyrood might refuse consent for Mrs May's Great Repeal Bill? And what effect would refusing consent have anyway?</div>
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You've got to recognise that EU law is everywhere in UK law, and it isn't neatly packaged in one big book of rules, embossed in gold and bound in red buckram, easily tossed onto a bonfire. EU norms are enshrined in a dizzying array of documents, from the <a href="http://www.legislation.gov.uk/ukpga/1972/68/contents" target="_blank">European Communities Act 1972</a>, to ordinary legislation, to regulations, to the Scotland Act itself. In terms of UK constitutional law, some areas principally regulated by EU law are devolved, others not. The <a href="http://www.legislation.gov.uk/ukpga/2010/15/contents" target="_blank">UK Equality Act 2010</a>, for example, gives effect to European non-discrimination directives -- and is for the main part, a reserved matter. Holyrood can't amend or repeal it. </div>
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Fishing, on the other hand, is only very partially reserved to the London parliament. But to ensure Scottish Parliamentarians didn't go voyaging on stranger tides, in 1998, MPs decided to constrain the new parliament's powers. Section 29 of the Scotland Act requires all Scottish legislation comply with the rights set out in the European Convention on Human Rights -- and EU law too. That's why, for example, the Scottish Whisky Association were able to take the SNP's minimum alcohol pricing legislation to court. The liquor manufacturers argued that the legislation interfered, unlawfully, with the European single market, by discriminating against producers able to pump out plonk on the cheap, by requiring them to sell their products at an inflated cost. The requirement to tender for ferry services is another -- controversial -- example of EU law at work.<br />
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The critical point is -- the Great Repeal Bill seems likely to stretch across reserved and devolved issues simultaneously. Some parts of it will require the Scottish Parliament's consent, others not. But as Professor <a href="https://twitter.com/colmocinneide/status/782895304425234433" target="_blank">Colm O'Cinneide, from UCL recognised</a>, the legislative consent motion before Holyrood "may have to be drafted in broad terms, and of course will need to cover EU law provisions" written into Scotland's devolution settlement.</div>
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Which is where Mike Russell's "block" comes back in. Under the Scotland Act, Holyrood must obey EU laws, on fishing, agriculture, non-discrimination. If the PM wants to strip out those rules or to change Holyrood’s powers – she will need to secure the consent of a majority of MSPs. As things stand, it is perfectly conceivable that Scottish politicians will decide to defy Westminster. Mrs May would then have to decide whether to ignore their objections, riding roughshod over constitutional principles -- or to respect them, and leave Holyrood subject to EU law, but paradoxically, outside the European Union.</div>
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It isn’t necessarily obvious, however, why our parliamentarians would refuse their consent. It isn’t the Scotland Act restrictions which guarantees the rights of Scots to move freely, and to work and resettle across Europe – but the UK’s dying EU membership. Many EU rules are, in principle, about sharing burdens as well as benefits, while keeping an eye out for backsliders, free riders and chancers. Every state, for example, is likely to be inclined to discriminate in favour of its domestic industries in the economy, and to cultivate a more unfree market. EU single market rules seek to eliminate this across the whole bloc. </div>
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But why keep the rules, when you aren’t part of the club? Unless the requirement to adhere to EU law was stripped out of the Scotland Act - we'd be looking at carrying their burdens, without seeing their benefits. An invidious position, no? There are a few more and less convincing answers to this objection. The symbolism of such a vote in Holyrood is obviously significant. Most folk won't follow the legal niceties of what the consent procedure actually represents. It will, inevitably, be seen in simpler, more political terms. Does Holyrood capitulate or not in the teeth of the Tories' haughty insistence that Brexit is their baby, and it will be midwived into monstrous shape only on their terms? That is how it is likely to be seen - presented - and understood by many.</div>
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For the SNP, retaining EU law might also represent a statement of intent about an independent Scotland’s future inside the Union. Why radically diverge from EU rules, when you want to join the club, sooner rather than later? Shadowing (some) of the regulation could be seen as a significant gesture of this kind. But you could do this, without making it a legal requirement to legislate in a way which is compatible with EU principles. And let's be honest: eliminating EU regulation would create opportunities as well as challenges, to take policy positions prohibited by single market rules. </div>
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Alan Page, <a href="http://www.dundee.ac.uk/law/staff/profile/pure/alan-page/fb6f07c6-79c9-4429-b325-6987642f8d9e" target="_blank">Professor of Public Law at the University of Dundee</a>, has identified another - slightly trickier - issue with the Great Repeal wheeze, <a href="http://www.parliament.scot/General%20Documents/The_implications_of_EU_withdrawal_for_the_devolution_settlement.pdf" target="_blank">in his short paper for the Holyrood committee</a> scrutinising Brexit. The key point is identified in paragraph 13 of Professor Page's note. He is concerned about the possibility of <i>UK </i>government ministers disapplying and altering EU law concerning devolved matters in <i>Scotland</i>, without any reference Westminster, <i>or </i>to the Edinburgh government or Parliament. Law is made in many ways. One important source is what is called <a href="http://www.parliament.uk/about/how/laws/delegated/" target="_blank">"subordinate legislation"</a> - generally powers exercised by ministers in the government, often with lighter scrutiny from MPs than full-blown Act of Parliament. Mrs May's government seems likely to use this tool to prune the EU law which applies in Britain. But there's a problem. Professor Page:</div>
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"At the moment there is no requirement of the Scottish Parliament’s consent to UK subordinate legislation transposing EU obligations in the devolved areas; nor is the Parliament routinely informed about such legislation. Were obligations to be transposed by UK Act of Parliament the Scottish Parliament’s consent would be required, but if they are transposed by subordinate legislation its consent is not required. The situation could thus arise in which the UK legislated extensively in areas devolved to Scotland without seeking the consent of the Scottish Parliament as there would be no requirement of its consent in relation to subordinate legislation altering the effects of EU law in the devolved areas.<b> In my view, this represents a significant potential gap in the framework of Scottish parliamentary control over UK law making in the devolved areas</b>, which the Scottish Parliament should be alert to the need to close should UK Ministers be given the power to revise EU law in the devolved areas."</blockquote>
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If Mrs May's Great Repeal Bill laid the foundations for this kind of arbitrary mode of decision making, without reference to devolved institutions, the Scottish Government would understandably hit the roof, and refuse to give their blessing to her Bill. They would be right to do so. From a political perspective, all of this is pungent. Legally, however, Holyrood can really only stage a weak, rear-guard action on the Brexit fallout. So long as we remain tethered to the UK government, we're tethered to its fate, outside of the European Union. Despite Mr Russell’s fighting talk, the legal scope for Holyrood to make Brexit mischief remains very limited. As for the political opportunities? Well: they're a different matter entirely.</div>
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Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.com34tag:blogger.com,1999:blog-1638916042737526171.post-19227280468837449322016-09-18T17:33:00.003+01:002016-09-18T17:41:38.212+01:0019th September, 2014<div class="separator" style="clear: both; text-align: center;">
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On the 19th of September 2014, I wrote a piece entitled “<a href="http://lallandspeatworrier.blogspot.de/2014/09/under-low-sky.html" target="_blank">under the low sky</a>.” It is an evocative line – stolen – from a book I read years ago about the experience of living in the Netherlands, where the horizon presses down on you, without the thrown elbows of mountains to keep it at bay. But the phrase seemed apt to the slate-grey Glasgow afternoon which the indyref left in its wake, and the half-throttled sense of sadness I felt, as the long day wore on, accumulating sorrows. </div>
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Unlike many folk, I felt no real hope or anticipation that the Yes campaign would carry the day two years ago. Defeat, even a narrow defeat, seemed almost inevitable. When Clackmannanshire declared, the night was already dead for me. I know some folk waited and waited up, in hope and expectation, but Don Quixote’s horse had already been shot out from under him. Sancho Panza was floating, face down, in the Clyde. Being right wasn’t much of an emotional salve, it transpired. </div>
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As the Orcadians said No, I escaped from Pacific Quay into the cold but fresher night air, as the wind chased down the currents of the river and the BBC building behind me fizzed and sweltered and thronged. Big Kevin McKenna, built like a Renaissance cardinal, was sucking a sanguine cigarette outside. We talked, briefly, only to be interrupted by the jubilant figure of Margaret Curran. I remember the Labour MP did a kind of jinking <i>danse macabre</i> as the majority No vote accumulated, a sort of hirpling Scottische. You shouldn’t begrudge your opponents their successes, I suppose. But that little jig. I’ll never, ever – quite – be able to forgive Margaret Curran for her little jig. </div>
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(Though I suppose, as the saying goes, she’s not jigging noo. “Even victors are by victories undone.” In the aftermath of the 2015 general election, I happened to bump into the former Scottish Labour MP in a pub in Oxford during a flying visit. Sauntering past her as she walked in to the Lamb and Flag, I was stunned to hear myself say “You’re Margaret Curran. Tell me. How are you bearing up?” As luck would have it, Curran clearly had no idea who I was, or any clue about my separatist politics. I left her with a kind word, undisabused, as an apparently sympathetic Scotsman, safely south of the wall.)</div>
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But back in Pacific Quay, in the early hours of the 19th of September 2014, Margaret was still jigging. I decided to leave before the emotion of the moment overtook me, and I said something I might come to regret. Abandoning all hope of securing a friendly cab out of there, I made my escape on foot, marching out along the banks of the river, an unsteady, half-gralloched figure, lurching between sorrow, rage and resignation. </div>
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My company for the first part of this journey – perhaps curiously – was Adam Tomkins. The Glasgow law professor was cutting his way along from the BBC towards Better Together’s victory party in the Hilton, where the corks were already popping. Adam behaved with all the kindliness and consideration you could expect from a political opponent at their moment of victory – much more, really. The balance of the way home I spent alone, eyes stinging, bitter, sad. I turned in, and slept a dull sleep without dreams. It is only election night I’ve been unable to see through. </div>
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I’ve never known at atmosphere like the one I woke up to in Glasgow the next day. The result hung over everything. It leached all the social colour from the day. The weather provided an obligingly grim backdrop. The gloom was general. I live in the south side of the city, Nicola Sturgeon’s constituency. The Yes vote prevailed here - one of the few reassuring things about the immediate aftermath of the poll. The national picture may have been disappointing, but amid everything else, at least you read your own community correctly. </div>
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I sat in a pub. I watched Alex Salmond resign before a dumb room, eyes all fixed on the telly. A man ordered another double shot of strong liquor. A fourth pint suddenly seemed wise. And for those drinkers who quietly concluded that independence wasn’t a sure bet, who voted no? It was a scene of victory without jubilation. It must have been an odd experience. An unseen hand kept squeezing away at my throat. I made rash promises to myself that I’d never write about Scottish politics again. That I was done with it all. I might take up something wholesome like gardening instead, or skydiving. Half an hour later, I’d written this blog. It is often a painful – even embarrassing – thing to rake back over your old prose. <a href="http://lallandspeatworrier.blogspot.de/2014/09/under-low-sky.html" target="_blank">This</a>, at least, evoked the experience I remember. </div>
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I am not one of life's joiners, despite my partisan inclinations. I'm not a marcher. I didn't find myself, politically, during the indyref. I am a crappy and a complacent activist. An <i>inactivist</i>, essentially. The experience didn't transform my ideas of politics. But like many folk of my generation, it was, and remains a profoundly important - even seminal - moment from which it will be difficult to escape for some time to come. Whether or not we revisit the national question later rather than sooner, the autumn of 2014 will cast a long shadow for decades. But where are we now, two years on? Whither now, for the calculating Scottish nationalist with the long view? It has all become tremendously complicated. I wish I could see my way through it all more clearly.<br />
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Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.com37tag:blogger.com,1999:blog-1638916042737526171.post-11071240026513667672016-09-13T14:53:00.001+01:002016-09-13T15:01:04.228+01:00A Bill for Criminal Letters<div class="separator" style="clear: both; text-align: center;">
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"Criminal Letters" sounds like a pot-boiler crime novel, written by one of Agatha Christie's less talented impersonators. But in Scots law, this evocative phrase has a more precise meaning. The overwhelming majority of criminal cases in this country are pursued by the Procurator Fiscal, prosecuting individuals in the public interest, under the superintendence of the Lord Advocate.<br />
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But if Scotland's principal prosecutor declines to pursue a criminal case against an individual, for whatever reason? Scots law leaves the door - slightly - ajar for ordinary citizens to take the initiative against those they believe have wronged them, and to pursue a private prosecution. </div>
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But in order to do so - to lay the indictment, to summon the accused to the dock, and impanel a jury - first, a Bill for Criminal Letters must be presented to the High Court of Justiciary. If senior judges agree that the private prosecution is warranted, they will pass the Bill and the private prosecution can proceed. But if they refuse to issue criminal letters? That's the end of the matter. Case closed.</div>
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As you may have heard on the news <a href="http://www.bbc.co.uk/news/uk-scotland-glasgow-west-37338890" target="_blank">this morning</a>, at 10.00am in the High Court of Justiciary in Edinburgh, legal <a href="https://www.scotcourts.gov.uk/docs/default-source/crim-appeals---court-rolls/12-september-2016.pdf?sfvrsn=4" target="_blank">proceedings</a> commenced against Harry Clarke, the <a href="https://en.wikipedia.org/wiki/2014_Glasgow_bin_lorry_crash" target="_blank">Glasgow bin lorry driver</a> who lost consciousness at the wheel on the 22nd of December, 2014, resulting in the deaths of six people. Lawyers for Matthew and Jacqueline McQuade and Yvonne Reilly - who lost relatives in the accident - are trying to persuade the court to give them permission to prosecute Clarke for criminal offences, as yet undisclosed. In parallel, the Stewart and Convy families are pursuing criminal letters against <a href="http://www.bbc.co.uk/news/uk-scotland-glasgow-west-30096803" target="_blank">William Payne</a>, who was involved in a separate road traffic incident in 2010 which resulted in the tragic deaths of Mhairi Convy, 18, and Laura Stewart, 20. </div>
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The legal argument is set down for two days, Tuesday and Thursday. Don't expect to hear any real detail about the arguments deployed by the different parties appearing before the Court. Judges have imposed strict reporting restrictions on the case under the Contempt of Court Act. Why? Principally, the court is concerned with the fair administration of justice. If criminal letters are granted to either or both of these families, more court proceedings against will inevitably follow. Judges are anxious that nothing potentially prejudicial should find its way into the media. </div>
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But we can say a thing or two about the <i>general </i>approach the court is likely to take in deciding whether or not to pass these bills for criminal letters. (I've <a href="http://lallandspeatworrier.blogspot.co.uk/2016/01/harry-clarke-in-dock.html" target="_blank">blogged about</a> this <a href="http://lallandspeatworrier.blogspot.co.uk/2016/01/harry-clarke-insufficient-evidence-in.html" target="_blank">in detail</a> <a href="http://lallandspeatworrier.blogspot.co.uk/2015/08/harry-clarke-and-criminal-letters.html" target="_blank">last year</a>, but wanted to give you a quick refresher.) In Scotland, applications for private prosecutions only come around once in a blue moon. But past cases highlight key issues which will preoccupy High Court judges this week. The notorious <i><a href="http://www.bailii.org/scot/cases/ScotHC/1982/1982_JC_70.html" target="_blank">Carol X</a> </i>case from 1982 gives you, perhaps, the clearest sense of how the court will approach the decision and the legal tests involved. For the sake of clarity, I'll focus on the Clarke case only here. But everything I say applies equally to the Payne application being pursued in tandem. </div>
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To secure the criminal letters they crave, the McQuade family will have to persuade judges of four things.</div>
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<b>1. Do the families have "title and interest" to prosecute?</b></div>
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Having drawn up a specific charge sheet and laid it before the court, what then? Firstly, the private prosecutors have to show that they have "the necessary title, and has qualified the necessary interest, to prosecute privately." What does this mean? Like any other legal action, here the families will have to show that they have sufficient legal interest in the matters before the court. You can't sue a landlord because she is unpleasant to your friend, their tenant. You can't take a man to court for a personal injury he has inflicted on an acquaintance. </div>
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The same goes for a private prosecution. <i>Carol X's</i> title and interest in prosecuting her attackers was beyond dispute. She had been the victim of a horrific and violent sexual assault. But sometimes title and interest may be less clear, depending on what precisely you are seeking to prosecute. The Sweeney and McQuade families have an obvious and overriding interest in the tragic deaths of their relatives. The loss is theirs. But what interest would they have in prosecuting a paper fraud committed against the DVLA, or Glasgow City Council, or First Bus? This seems like a technical point, but it might become an important one.</div>
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<b>2. Is there evidence in support of relevant criminal charges?</b></div>
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Next, the families will have to present the court with sufficient evidence to prove there is a <i>prima facie</i> case, sufficient to justify bringing Harry Clarke to trial for the offences identified in the bill of criminal letters. Again, all this has to be specific. Named offences, chapter and verse. As with much else about this case, this detail on this is not currently in the public domain. </div>
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<b>3. But are there "very special and exceptional circumstances"?</b></div>
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If these two tests are satisfied, the families will still need to persuade the court that there are "very special circumstances which would justify us in taking the now exceptional step of issuing criminal letters at the request of a private individual" and allowing a private prosecution to proceed. That's the test. "Very special and exceptional circumstances." </div>
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In <i>Carol X</i>, there had been a clear and material change in the complainer's well-being and mental health. The crown accepted that there was a sufficiency of evidence and a prosecution would be in the public interest. The underlying crime was appalling, harrowing. The circumstances were complex and unusual. <i>Carol X </i>was, in the words of Lord Justice General Emslie, a "quite exceptional case." Does <i>McQuade and Sweeney v. Clarke, </i>or <i>Stewart and Convy v Payne</i>, pass that high hurdle? What makes these cases "special" and "exceptional"? This is the critical legal test. </div>
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<b>4. And would allowing a prosecution be "oppressive"?</b></div>
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Lastly, the court will almost certainly be invited to consider whether it would be oppressive to allow Harry Clarke to be tried, in the light of the procedural history of the case, and the background coverage it has already received. In <i>Carol X</i>, the two accused - unsuccessfully - argued that "the widespread publicity about this case" in "the Press, on television, on radio, and in Parliament itself, has made it impossible for the respondents at any time to obtain fair and impartial trial anywhere in Scotland."<br />
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Similar considerations might apply here. The accident in George Square, its aftermath, and the FAI hearings and outcome, have been subject to wall-to-wall coverage in the national and local media. Taking that into account, can Mr Clarke, or Mr Payne, receive a fair trial?</div>
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These questions are for the judges of the second division to decide. The case continues.</div>
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Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.com16tag:blogger.com,1999:blog-1638916042737526171.post-83161527078054417272016-08-24T14:43:00.001+01:002016-08-24T14:43:05.010+01:00Beyond the grave<div class="separator" style="clear: both; text-align: center;">
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The folks at <i>the National</i> asked me to fill in for a couple of weeks, while one of their regular columnists was tripping the light fantastic on their holidays. In my <a href="http://www.thenational.scot/comment/andrew-tickell-the-enduring-legacy-of-a-life-marked-by-deeds-not-words-etched-in-stone.21544" target="_blank">second and last effort this morning</a>, I thought I'd take a break from the relentless politics of Brexit, and GERS, and #indyref2, and write something a little more personal, historical and meditative. Here's an excerpt:</div>
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<i>There are always figures in your family history who cast longer shadows. The folk who catch the eye, who haunt and preoccupy. Sometimes their choices coloured everything that came thereafter. Sometimes they are enigmas. Sometimes you feel – or perhaps only project on to them – a sense of recognition. Sometimes you feel you can detect their influence on folk you have known – your parents and grandparents.</i> </blockquote>
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<i>Angus Miller, my great-grandfather, was one of these characters. A rural doctor, he was born during the reign of Queen Victoria, and tended to the health of his community long before the Labour government of 1945 introduced the National Health Service. We still have candlesticks he was given by a grateful blacksmith, who couldn’t afford his medical bills, but who could work and shine metal into beautiful shapes – a memento of a child whose life had been saved on the western edge of the Scottish wilderness.</i></blockquote>
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You can <a href="http://www.thenational.scot/comment/andrew-tickell-the-enduring-legacy-of-a-life-marked-by-deeds-not-words-etched-in-stone.21544" target="_blank">read the whole thing here</a>.</div>
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Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.com15tag:blogger.com,1999:blog-1638916042737526171.post-24217664086030243372016-08-17T17:24:00.001+01:002016-08-17T17:38:37.655+01:00En vacances<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjuQcF8Zh-ML2NiT9_KNpsCdD_kwRMYegvkM_jfKuUPqtVWsqxMtl948gQAf4B_LgQuQ9AA8dFvpP7K3YxPUGALCi-mrWU1ZAdqAH0_CvTjH9IwOR3jGW571XPv8UcHht_jZpoJ-SmnalO3/s1600/holiday.jpg" imageanchor="1" style="clear: left; display: inline; float: left; margin-bottom: 1em; margin-right: 1em; text-align: justify;"><img border="0" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjuQcF8Zh-ML2NiT9_KNpsCdD_kwRMYegvkM_jfKuUPqtVWsqxMtl948gQAf4B_LgQuQ9AA8dFvpP7K3YxPUGALCi-mrWU1ZAdqAH0_CvTjH9IwOR3jGW571XPv8UcHht_jZpoJ-SmnalO3/s320/holiday.jpg" width="161" /></a>
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As my earlier correspondence on the Named Persons judgment suggested, I've been furth of the United Kingdom on my holidays for the last few weeks. (See an uncanny artist's impression, <i>left</i>). But touching back down in Scotland this morning, I found Glasgow bathed in something resembling natural sunlight. It was balmy. Unfamiliar blue patches had sprung up in the sky, as I steered back from France. This novel experience was uncanny, but found me in cheery, serene, hopefully restored fettle. </div>
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But before I landed, I filled in for <a href="http://www.thenational.scot/comment/andrew-tickell-the-ex-pat-brits-who-voted-for-brexit-dont-see-themselves-as-immigrants.21276?utm_source=dlvr.it&utm_medium=twitter" target="_blank">an absent <i>National</i> columnist</a> this morning, reflecting on one or two of the more curious characters I met, and political conversations we had, trundling around the south of France. Again and again, I encountered the curious character of the foghorn-leghorn Brexit voter -- souls who have moved to France, but blithely cast their ballots in favour of Britain's crashing out of the EU.</div>
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<a href="http://www.thenational.scot/comment/andrew-tickell-the-ex-pat-brits-who-voted-for-brexit-dont-see-themselves-as-immigrants.21276?utm_source=dlvr.it&utm_medium=twitter" target="_blank">Here's a taster</a>:</div>
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<i>"OUR location? La belle France. Our temperature? 32 degrees. We’re many leagues into taps aff territory here, through warm fields of vines, and parched Cathar castles, and Cypress trees. Cicadas electrify the woods. Crickets keep up dry and woody symphonies in the underbrush. And my current complexion is what my mother would describe as a “healthy puce”. Hypertension red.</i> </div>
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<i><i>I have become the traditional lobster ecossais which results whenever anyone from this country is exposed to anything like natural sunlight for a sustained period. Rudolph has nothing on me. I might use my face as a reading lamp, or perhaps deploy it to power a modest solar energy scheme – if only Ms May’s new government hadn’t shuttered our renewable future and squandered all my ruby phizog’s potential energy.</i> </i></div>
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<i><i>But as the rays beat the terrace outside ruddy, I loiter sweltering in the back cave of a local bar. A rugby match rumbles on, on the telly.</i> </i></div>
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<i><i>The hooker takes out a prop and the referee misses a gruesome tackle. Offside rules are flouted, provoking only the occasional outraged Gallic interjection. Our audience is principally French, sipping little beers and lining the snug, watching one local team leather another.</i> </i></div>
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<i><i>The atmosphere is convivial.</i> </i></div>
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<i><i>But in their midst? Our John Bull, ex patria, is determined to give the citizens of his new home a passionate defence of why he voted for Brexit. Their incredulity is general. My ears burn."</i></i></div>
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Unlike my weekly <i>Times </i>bits, locked away behind the paywall on Thursdays, you <a href="http://www.thenational.scot/comment/andrew-tickell-the-ex-pat-brits-who-voted-for-brexit-dont-see-themselves-as-immigrants.21276?utm_source=dlvr.it&utm_medium=twitter" target="_blank">can read the whole thing here.</a> More peated blogging when we have it. </div>
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Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.com14tag:blogger.com,1999:blog-1638916042737526171.post-82642778788959357232016-07-29T14:57:00.000+01:002016-07-29T15:13:30.258+01:00"Hated Named persons scheme blasted as 'totalitarian'..." <div class="separator" style="clear: both; text-align: center;">
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<i>I know, I know</i>. I <i>ought</i> to be out eating duck gizzards and quaffing <i>vin rosé</i> -- and I am. But in the wake of yesterday's Named Persons judgment - <a href="http://lallandspeatworrier.blogspot.fr/2016/07/named-persons-pyrrhic-victory-pyrrhic.html" target="_blank">further details here</a> - I wanted to pick up just one element of the coverage of case, which warrants further scrutiny. This is pleasure, not business.</div>
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The word of the day, children, is "totalitarianism." The <i>Daily Mail, </i>whose rabid fulminations against the Named Persons schemes have been unrelenting, stick the word <a href="http://www.dailymail.co.uk/news/article-3712649/Judges-block-Nicola-Sturgeon-s-totalitarian-law-appoint-named-person-child-Scotland.html" target="_blank">in their headline</a>, and suggest in the body of the piece that the Supreme Court "blasted" the named persons scheme "as totalitarian." In the <i><a href="https://www.thecourier.co.uk/fp/news/politics/scottish-politics/228527/john-swinney-says-named-person-plans-remain-track-supreme-court-ruling/" target="_blank">Courier</a></i>, the Christian Institute Colin Hart suggests Justices "even invoked the spectre of totalitarian regimes in its criticism of the plans." Brian Monteith weasels the word into his <i><a href="http://www.edinburghnews.scotsman.com/news/opinion/brian-monteith-named-and-shamed-at-the-supreme-court-1-4189489" target="_blank">Edinburgh Evening News</a> </i>column, and even the <a href="http://www.heraldscotland.com/opinion/14649731.Readers__39__Opinion__SNP_must_now_abandon_this_totalitarian_legisaltion/?ref=rss" target="_blank"><i>Herald</i>'s readers</a> get in on the act. Aberdeen's <i><a href="https://www.pressandjournal.co.uk/fp/news/politics/holyrood/987069/supreme-court-blocks-totalitarian-named-person-scheme-historic-ruling/" target="_blank">Press and Journal</a></i> quote what they describe as a "devastating line" from the judgement: "The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world." </div>
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The implications of these reports are all spectacularly unsubtle. The casual reader, leafing through the paper and spotting these stories, would be lead to understand that the Supreme Court had criticised the SNP government in general, and the Named Persons scheme in particular, as "totalitarian." Step forward, former <i>Scotsman</i> reporter David Maddox, who has returned to his roots with a new gig writing about politics for the <i>Daily Express</i>. Mr Maddox summed up the allegation <a href="https://twitter.com/DavidPBMaddox/status/758633887958495232" target="_blank">neatly, if mendaciously, in a tweet yesterday</a>: "So it is official ... a Court has likened SNP run Scotland to a "totalitarian regime." The meme did the rounds vigorously on social media. "A shocking assessment of the SNP" government one remarked. "A senior judge said this of them. Shocking."</div>
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And I grant you, on the face of it, these headlines don't look good for the Scottish Government. A senior judge, using inflammatory language like that? A bench of experienced jurists, slating the SNP's child protection measures as akin to the bloodiest and most sinister regimes the world has known in the last century? Remarkable. </div>
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But wait: how does this -- how <i>can</i> this square -- with that important passage from yesterday's judgment, in which Lord Hodge described the purpose of the Named Persons scheme as "unquestionably legitimate and benign", without a peep of dissent from his colleagues? I know you are supposed to get more conservative as you get older, and heaven knows, judges aren't always the most liberal of spirits, but surely Lord Hodge wasn't suggesting that the - albeit flawed - Named Persons scheme was simultaneously "totalitarian", <i>and </i>"legitimate and benign"?</div>
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Of course he wasn't. Because Mr Maddox, the <i>Daily Mail</i>, Colin Hart, Brian Monteith, the <i>Press and Journal</i> are all - deliberately, or through their ignorance and incompetence - distorting the judgment to suit their intellectually dishonest political goals. I told you there would be spin about this judgment -- from both sides. There has been. I sympathised with journalists yesterday. We have the outcome of the court case -- a Pyrrhic victory for the Christian Institute -- but the Court's lengthy reasoning is more nuanced and hard to get your head around, never mind to bang out a pithy but clear few hundred word story about. Many journalists made a good fist of bringing their readers the essential facts, gesturing to the legal and political complexities of the case, even if they could not entirely account for it in their pages.</div>
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But what I find galling -- what I find indefensible -- is the wilful dishonesty which has characterised parts of the right-wing media's reporting of this story. It is as if their journalists <i>tried </i>to read the judgment, got bored, befuddled or confused, and instead -- just found the fieriest word in the text and decided to sex it up into an unprecedented judicial drubbing for the SNP. But don't take my word for it. Just read paragraph [73], which is the solitary instance of the word "totalitarian" in the judgment. <a href="http://www.bailii.org/uk/cases/UKSC/2016/51.html" target="_blank">Lord Hodge said</a>:</div>
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There is, you will note, no mention of the Named Persons scheme in this passage. Nor is there many mention of the SNP government, or of "SNP run Scotland", to borrow Mr Maddox's pithy phrase. Instead, Lord Hodge lays out the roots of the right to privacy and family life in international human rights law. He goes on to set out key principles and cases from the ECHR in subsequent paragraphs, before returning to their application to this case. This isn't a "devastating line" as the <i>Press and Journal </i>had it. It is bone dry judicial background. It doesn't "blast" the Named Persons scheme, or the SNP government, as "totalitarian", however much the <i>Daily Mail </i>might have <i>liked </i>the court to use this kind of salty language to describe the policy. </div>
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It is an old trick, none the less shabby for its familiarity: the selective quotation, deliberately decontextualised, its true object obscured, and presented in a way calculated to mislead the reader. If I was Lord Hodge, or any of the four other judges who contributed to the judgment, I doubt I'd be terrifically pleased to find Mr Maddox and his fellow travellers' putting words in my mouth, misrepresenting my judgments, and trying to pull me into their political battles. </div>
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Whatever you make of the wisdom or folly of the Named Persons schemes, whatever you make of its flaws or the flaws of the government which sponsored it, we ought to be able to agree on this. Having read this passage, only an idiot could conclude the Court was "likening SNP run Scotland to a totalitarian regime." Only a determined charlatan could tell the public that Lord Hodge was "blasting the named persons scheme as 'totalitarian.'" </div>
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<i>For shame.</i></div>
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Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.com60tag:blogger.com,1999:blog-1638916042737526171.post-50371173469577579802016-07-28T10:56:00.002+01:002016-07-28T11:10:11.907+01:00Named Persons: a Pyrrhic victory, a Pyrrhic defeat<div class="separator" style="clear: both; text-align: center;">
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<i>Bonjour </i>from the bonny <i>Languedoc-Roussillon! </i>I'm meant to be on my holidays, but the Supreme Court of the United Kingdom is no respecter of summer sojourns. The Court just handed down its <a href="https://www.supremecourt.uk/cases/docs/uksc-2015-0216-judgment.pdf" target="_blank">judgment</a> in the Christian Institute's challenge to the Scottish Government's controversial Named Persons scheme. </div>
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You can read the - far briefer - <a href="https://www.supremecourt.uk/cases/docs/uksc-2015-0216-press-summary.pdf" target="_blank">press summary</a> here. And heaven knows, the hacks will need help reporting this one. Both sides will claim victory, and indeed, both sides <i>have </i>achieved important things in this judgment. It puts the headline writers in an awkward spot. The spin-machines will be whirling overtime. Everyone will take what they want from the decision, whether or not you can find it in the court's analysis.</div>
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So what's the short version? Here follows a - very brief, dashed off holiday primer on some of the issues. I've only had time to make a hasty reading of the judgment in full. Forgive any weaknesses or glaring gaps in the speedy reaction that follows.</div>
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The Christian Institute won -- the court, led by Lady Hale and Lords Reed and Hodge -- decided the Named Person scheme as presently constituted is unlawful. It is incompatible with Article 8 of the European Convention on Human Rights. Article 8 protects the privacy of your home and family life, of your correspondence. But in order to understand what the Court has and has not decided, you have to know a little more about how they approach Article 8. Privacy and family isn't an absolute right. It is qualified. The state is allowed to interfere with its citizens family lives -- if they have a good reason to do so. </div>
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Thus, for example, the law permits children at risk to be taken from their parents. A more radical intervention in anybody's family life, it is difficult to imagine -- but if there is a good reason for doing so, Article 8 will not prevent it. The same goes, for example, about bugging the houses of people suspected of serious organised crime, or terrorism. A more radical intrusion into your home life, it is difficult to imagine, but if it is for a good reason, and strikes a fair balance between the collective interests of the community and the rights of the individual, Article 8 doesn't stand in its way.</div>
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So for any given scheme which interferes with a citizen's privacy or family life, the court must ask itself three questions. One: does the scheme purse a "legitimate aim"? Does the government and parliament have a good reason for interfering with the rights of its citizens? Today, the Supreme Court held that the aim of the Act, "is unquestionably legitimate and benign". </div>
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Two: judges must consider, is the measure "necessary in a democratic society"? Essentially, this means: is the measure proportionate? Does it go too far? Today, the Court fired a warning shot across the Scottish Government's bows, observing that because of weak guidance in the legislation, the Named Persons scheme does have the potential in some cases to disproportionately interfere with privacy and family life. </div>
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But critically, this morning judges recognised the Named Persons scheme as a whole <i>does </i>pursue a legitimate aim, and <i>can</i> be proportionate across the piece. But judges expressed some pretty serious reservations about how the scheme will operate in individual cases, concluding that without clear guidance on the powers and responsibilities of Named Persons, the scheme as presently drafted "may in practice result in a disproportionate interference with the article 8 rights of many children, young persons and their parents, through the sharing of private information." Which brings us on to the third and final test, and the critical one in this appeal.</div>
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Thirdly and lastly, the court must ask itself whether the scheme is "according to law"? This, rather than legitimacy or proportionality, is the key point in today's Named Persons judgment, and the basis for the Court's conclusion that the legislation - as it presently stands - is unlawful. </div>
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In principle, we live under the rule of law. Decisions taken by our public authorities must not be arbitrary. There should be a clear legal basis for their actions, and more than that, decisions which interfere with fundamental rights must, in particular, have a clear and rational basis in law. That might mean the backing of parliament through legislation, or a decision of the courts. Here, the Named Persons scheme was enshrined in law by Holyrood in Part 4 of the Children and Young People (Scotland) Act 2014. </div>
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But having <i>some</i> legal basis for a scheme isn't enough. The ECHR is not just concerned with <i>whether</i> there is a legal basis, but the <i>quality</i> of the legal basis. The law must be clear about what powers and responsibilities public officials do and do not have under the legislation. That's the nub of today's decision, and that's where the Scottish Government has taken a tumble. </div>
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Lord Hodge and his colleagues concluded that the legal rules governing the Named Person scheme currently aren't tight enough or clear enough to satisfy the ECHR. But critically, this <i>can</i> be fixed. The Scottish Government lost, but this decision does not permanently hull the Named Persons scheme below the waterline. I hope that makes things just a little clearer. There is, as I've said, something here for everyone. Sharply critical passages. Important concessions. Expect the partisans to seize their advantages where they may, and to spin like billy-oh.</div>
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What we all ought to be able to agree on is this. This judgment calls for a fundamental reappraisal of how the named persons scheme is set out in primary and secondary legislation. It demands a very serious second look at the rules which have been put in place to govern the legal powers and responsibilities of Named Persons. John Swinney has indicated this morning that he intends to fix up the scheme, and "roll out" named persons as soon as possible. But with the proper amendments, nothing in this judgment prevents him from doing so. For the Christian institute, perhaps a Pyrrhic victory, for the Government, a Pyrrhic defeat. </div>
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And now, summoned away from my dusty shelf of law tomes, the sunshine calls...</div>
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Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.com13tag:blogger.com,1999:blog-1638916042737526171.post-29800405387102984182016-07-01T17:41:00.002+01:002016-07-01T21:51:37.270+01:00Scotland's future? Brexit on Brexiteers' terms. Unless...<div class="separator" style="clear: both; text-align: center;">
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Consider the following scenario. The United Kingdom votes narrowly to crash out of the European Union, 52% to 48%. In Scotland, by contrast, a substantial majority - from coast to coast - votes to remain. Invoking the popular will of the Scottish people, the First Minister gives a press conference. Distilled down to its essence, she says that unless Scotland's EU membership can be secured, we're on course for #indyref2 as the last viable route to secure a European future for this country. </div>
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Merry hell ensues. It soon becomes apparent that none of the alternatives to keep Scotland in the EU fly. In erecting the legal infrastructure for the referendum, Westminster refused a home-nations Euro lock, which would have required all four parts of the UK to vote in favour of Brexit. The Scotland Act gives Holyrood no constitutional power to veto the departure from the Union which the majority of Britons demanded. For all the well-intentioned creativity of the ideas produced by desperate Remain campaigners and academics in the frenetic wash following the vote, all of their solutions are quickly revealed as far-fetched and politically inoperative; intolerable either to European governments, to the United Kingdom, or both. </div>
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Scotland can't invert <a href="http://www.thenational.scot/comment/andrew-tickell-as-far-as-the-eu-is-concerned-scotland-is-a-stateless-nation-until-independence.19279" target="_blank">Greenland</a>'s experience. The autonomous island is part of Denmark, but sits outside the EU. Why - some folk have asked - couldn't England and Wales fall beyond the frontiers of European law and the four European freedoms, of goods, services, capital and people, while Scotland is left in? But the two cases are completely different. Greenland has a population the size of Livingston, compared to the 5.6 million Danes on Europe's doorstep, who accept EU rules and participate in the bloc's decision-making. If we "reversed" this in the UK, over 80% of the UK population would fall outside the EU. To put it mildly, this would be an unwieldy, cumbersome, unsustainable solution, even <i>if </i>it was politically acceptable, which it isn't.</div>
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But beyond that -- Britain voted to leave the European Union. Without independence, Scotland cannot step up and occupy the seat which the UK will vacate. Even if this lop-sided, unstable compromise was acceptable to European governments, the UK isn't going to remain even a paper member in Brussels, for the sake of five million Scots in a country of more than sixty four million. Particularly, if the consequence of such a decision would be to asset-strip the English economy, as companies relocate north of the border to secure their access to the single market. It is a fond fantasy. It soon becomes clear that there is no viable route for Scotland to remain within the EU while it remains a junior and overruled partner the United Kingdom. Thus far, I'd argue, we have already come in the manic progress of the last week. </div>
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This is not to say that Nicola Sturgeon's unprecedented embassy to Brussels was cynical or calculated gesture, as some of the First Minister's more embittered critics argue. But Sturgeon's remarkably gutsy response to the result immediately established a trajectory which made a second independence referendum seem nigh unavoidable. "Highly likely" but not her "first option", is how the First Minister has characterised it. I agree.</div>
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But a key variable is and remains missing from these calculations: what kind of deal will Britain do with the EU? Here, to my mind, there is only one master question: will David Cameron's successor accept the principle of free movement or not? Whether under Prime Minister Theresa May, or Michael Gove, is this to be a Brexit which turns the lock in the door, or which leaves it ajar to the European nations Britain has decided to distance itself from? The past couple of days have brought a little bleak clarity to that.</div>
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But there is - at least in theory - considerable wiggle room for British political actors here. Many pointed to the solution devised by the <a href="http://www.efta.int/about-efta/the-efta-states" target="_blank">EFTA states</a>, including Norway, which permits Norwegian goods and persons to circulate freely in the single European market, without fully incorporating the Norway into the EU proper. But the price of this kind of privileged access to the single market? Free movement of persons and no internal borders. You can't say we weren't warned. European Council President, Donald Tusk, has <a href="http://www.bbc.co.uk/news/world-europe-36659900?ns_mchannel=social&ns_campaign=bbc_breaking&ns_source=twitter&ns_linkname=news_central" target="_blank">repeatedly</a> underscored this. The view has been reiterated several times, before and after the referendum, by key actors within the EU, from Chancellor Merkel to Jean-Claude Juncker: <a href="http://www.bbc.co.uk/news/world-europe-36659900?ns_mchannel=social&ns_campaign=bbc_breaking&ns_source=twitter&ns_linkname=news_central" target="_blank">"no single market <i>a la carte</i>.</a>"</div>
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(I'd merely note, when he isn't getting standing ovations in the European Parliament, that Alyn Smith MEP was <a href="https://www.opendemocracy.net/ourkingdom/alyn-smith/scotland's-future-in-europe-taming-paper-tiger" target="_blank">bang on about this back in 2014</a>, when he wrote that the "unreality" of David Cameron's renegotiation proposals made Brexit odds on. How sadly prescient.) <br />
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There was - briefly - a window in which this might have been fought for from within the major UK parties. If they had seized the initiative, remain campaigners and more liberal minded Tory and Labour Brexiteers might have made a coordinated push to define the terms of which Britain would have negotiated its departure from Europe, emphasising the narrowness of the margin of victory, and seeing something like EFTA status for Britain as the next-best or least-worst alternative, keeping the channels of trade, work and travel open. If Mr Cameron had remained in post, this might have been possible, and Britain might have secured this kind of looser connection with the European Union</div>
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But there would be an obvious political cost to this which your average calculating Tory politician would be unprepared to pay. With its ugly emphasis on "taking back control" over our borders, it was always going to be tremendously difficult for any post-Brexit PM to avoid committing to ending free movement of persons from the Europe Union. Any Tory PM who failed to do so would leave themselves vulnerable to a massive and emboldened UKIP campaign against immigration. After all, why vote for the lesser evil? </div>
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But <i>if</i> this became a serious option -- it would have put Nicola Sturgeon in a deuced difficult spot. If an EFTA type deal was struck, which meant that Britons could work, travel and trade freely within the European Union, how many Scots would really be prepared to die in the ditch for the European rights, freedoms and regulations we had lost? There are, perhaps, a handful of people in this country for whom full participation in the EU is a red line. </div>
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Even so, the Brexit result has almost certainly done lasting damage to liberal, cosmopolitan and professional Scotland's confidence in the UK, its stability, competence, and the mutual faith and credit in these islands which <a href="https://medium.com/@chrisdeerin/that-sinking-feeling-4559d45e8c0b" target="_blank">many No voters</a> felt so keenly in 2014. (As a perceptive friend of mine noted, weeks out from the poll, the levels of complacency you encountered in Scotland about the referendum were startling. This is, perhaps, understandable. If you live in those parts of Edinburgh and Glasgow, for example, in which more than 75% of the population voted to Remain, it is understandable that the outcome seems a sure fire thing. Friday was a grisly morning, but all the more so, because it caught big parts of the electorate completely by surprise).</div>
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But offered an EFTA deal, I suspect most Scots would be prepared to endure the compromise, and count themselves lucky, even if Nigel Farage and his honking compatriots belched and gurgled about it. What would Nicola Sturgeon do? On these terms, would Brexit really represent a "material change" in most Scots attitudes to independence? I hae ma doots. </div>
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I suspect that for many, many Scots, the perceived necessity and temporary appeal of independence would recede. The First Minister has given herself considerable wriggle room, in her public remarks. She has never, to my knowledge, made a categorical statement about whether or not an EFTA style deal would satisfy her, or not, representing an almost adequate reflection of the popular will. But at the very least, it might leave Nicola exposed, having given the prospect of a second independence referendum such powerful momentum, in the immediate aftermath of the EU referendum results. Such things have the habit of running out of control. </div>
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But hidden beneath the incessant Game of Thrones metaphors, lost-sight of in the explosive Shakespearean game of political personalities -- Gove bursting out of Johnson's belly, like an alien hatchling -- the past two days have confirmed that the brief window of opportunity for a more open European deal has been slammed unceremoniously shut by the ascendant forces within our Tory government. Now the rout begins. </div>
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Both Michael Gove and Theresa May have effectively confirmed that they will not countenance the more cosmopolitan option of EFTA. The implications for the UK's access to the single market remain fully to be charted. But we shouldn't kid ourselves on. We can't pretend we've been hoodwinked. At the weekend, in a common statement, the European heads of government <a href="http://www.consilium.europa.eu/en/press/press-releases/2016/06/29-27ms-informal-meeting-statement/" target="_blank">set out their position perfectly categorically</a>.</div>
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<i>"In the future, we hope to have the UK as a close partner of the EU and we look forward to the UK stating its intentions in this respect. Any agreement, which will be concluded with the UK as a third country, will have to be based on a balance of rights and obligations. Access to the Single Market requires acceptance of all four freedoms."</i></blockquote>
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That's freedom of goods, services, capital -- and yes, persons too. Yesterday and today, both leading contenders to be Prime Minister have confirmed that under their leadership, the Tories will put the principle of free movement to the sword -- however devastatingly this position undermines their wider ambition to crack open the single European market to British firms, capital and workers.<br />
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<span style="text-align: justify;">This will be a Brexit, on Brexiteers' terms. There can be no illusions left now, about the emerging character of this United Kingdom and the priorities of its new government, whoever the victor in the Tory party leadership election may be. There must be </span>a snowball's chance in hell of any kind of compromised Norway inspired EEA/EFTA deal now.</div>
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Thus, Sturgeon has dodged one bullet, but contemplates another. A second independence referendum now becomes increasingly unavoidable. Much which will be critical to the fortunes of such a poll remains unknown. Europe - clearly - has conflicting currents within it, more and less helpful to the Scottish Government, if they are forced to embrace a second independence poll. Depending on your <a href="http://m.heraldscotland.com/opinion/14591634.Agenda__Political_chaos_presents_career_defining_gamble_for_Nicola_Sturgeon/" target="_blank">optimism or your pessimism</a> - I'm currently veering between the two, as the hours tend - the prospect may make you sing with lively anticipation, or shoogle with anxiety.<br />
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I still do not have a clear sense about just how far this referendum result has restructured Scottish opinion, and whether - tested under the renewed glare of a serious campaign - a second Yes campaign would carry the day. We all have anecdotes. Individual converts, and changed minds. But the room is still spinning. When things come back into some kind of focus, what then? </div>
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As I wrote in the <a href="http://www.thetimes.co.uk/edition/scotland/sturgeon-goes-for-broke-or-a-busted-flush-qj9xqztc0" target="_blank"><i>Times</i> yesterday</a> and in the <a href="http://www.thenational.scot/news/andrew-tickell-nicola-sturgeons-warm-words-to-our-friends-from-the-eu-provided-a-chink-of-light-in-the-darkness.19243" target="_blank"><i>National </i>last Saturday</a>, the First Minister has been on majestic form. Gutsy. Poised. Reasoned and reasonable. Clear and humane. But <a href="http://m.heraldscotland.com/opinion/14591634.Agenda__Political_chaos_presents_career_defining_gamble_for_Nicola_Sturgeon/" target="_blank">Andy Maciver</a> must be right to conclude, in the <i>Herald </i>this morning, that "<span style="text-align: left;">this is a career-defining gamble by Nicola Sturgeon, and therefore a defining moment for the nationalist movement."</span> This is multi-dimensional chess, played with exploding pieces.</div>
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Only time will tell, </div>
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Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.com36tag:blogger.com,1999:blog-1638916042737526171.post-83382786254882277362016-06-22T21:36:00.001+01:002016-06-24T10:49:55.782+01:00The sentimental European<div class="separator" style="clear: both; text-align: center;">
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Purists hate the politics of the big coalition. This much seems uncontroversial. Divide a country - any country - of sufficient bigness, richness and complexity into two massive tribes, and you form uncomfortable, often incoherent coalitions. You quickly find folk vote your way for reasons you disagree with, and worse, which you disrespect. You find people you think of as your political fellow travellers voting for the other side, because some detail -- piffling to you -- torments them, some wrinkle in their soul, a different perspective. </div>
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Purists also - in their bones - hate the cynicism of political campaigns. It isn't <i>my </i>reasons for believing in Brexit, or supporting our continued membership of the EU that matters. Not to the instrumental activist. What matters is the arguments and reasons which might convince <i>you</i>, rather than those which convince me. And if I happen to hve an unpopular ideosyncratic view, unless I can bracket my own sentiments, unless there are a lot of people who share my outlook, I can't be an asset to your cause.</div>
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On the 18th of September 2014, I spent much of the day standing outside a kirk near Queens Park, Glasgow. The area was Yes inclined. It was a pleasant -- but doomed -- way to spend the day. I'll never forget the woman who left the polling station, buoyant. "If we vote Yes, we automatically leave the EU" she said, having swallowed the Better Together line, hook and sinker. When she bounced out into the balmy afternoon, she had cast her Yes ballot. There was no use remonstrating, no use suggesting she'd misread the arguments of reached a - truly perverse - conclusion based on the two campaigns. I waved, dumbly, as she toddled down the street, having put up token resistance to her analysis. It wasn't worth it: her ballot was in my pile.</div>
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The EU referendum has brought out the awkwardness of the big coalition in spades. Pro-European Scottish Nationalists have watched a scorched earth economic case, orchestrated by the same folk in the Remain campaign who assured us that Scottish independence would result in an economic crucifixion. It has not been compelling. On the other side, eccentric - perhaps - but good-hearted, unbigoted leave campaigners have found themselves aligned with an often odious campaign, with which - I am sure - many would rather having nothing to do in any other circumstances. As I say: big coalition politics is difficult. It is often uncomfortable. It often feels a little dishonourable. And it makes for strange, incoherent coalitions. </div>
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It is important to understand and scrutinise both campaigns - and both arguments - in this light. Different arguments will convince different people. There is no necessary hypocrisy in this. I would encourage you to vote Remain tomorrow. But the reasons which persuade me may not be reasons which persuade you. Some other advocate -- on either side -- may more effectively speak to your concerns than I can. Heed them. Follow your own best judgment. We are large. This is a country of several million people. Domestic politics is still diverging in the home nations. We contain multitudes. </div>
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But speaking solely for myself: the European ideal still seems to me a noble one. The academic world is full of European citizens. I am surrounded by folk who live here, love here, work here, labour here, raise and educate their children here, because of the free movement of people. In the 2014 referendum, European citizens voted on the constitutional future of Scotland because -- at its most simple -- they are part of us. They choose to live here. They persevere here. They have their pleasures and their pains here, their friends and enemies. They have sparkling evenings, and dull times, they share laughter and kisses and rows and sorrows. They do precisely what the rest of us do. You may say this is sentimental. Very well: it is sentimental. But quietly, undemonstratively, this decision was one of the noblest things the SNP has done in office.</div>
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I cannot look at these people in the eye tomorrow - these colleagues, these allies, these friends - and vote to Leave the European Union. Unlike Jim Sillars, I cannot and I will not prosecute my indyref feuds with the European Commission and European governments by turning a cold shoulder on my comrades, who are part of us, who live with us, whose children are our friend's children, who elaborate Scotland and Britain's still largely monochrome tapestry.<br />
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They are immigrants and emigrants, just as Scots have traipsed across this globe for centuries, inflicting their lousy patter on the peoples of the world on the banks of the Hudson, in the scorching territories of Australia. They are people -- people who I have watched suffer, largely in silence, through this referendum. Tomorrow too, they will be silent in the ballot boxes, their votes missing. But one of my Dutch friends, who has lived in Britain for fifteen years, <a href="http://www.thetimes.co.uk/article/unionism-is-being-part-of-something-bigger-snjsmvg28" target="_blank">put it horribly starkly</a>. "I will never forget the headlines. Stay or go, I will never look at you the same way again."</div>
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I believe that Scotland has a European destiny, inside the UK, or outside of it. For me, this is existential. Despite the slurs and the sallies, the wits and the wags and the denigrators, ours is not and has never been a separatist movement. I have no interest in narrow nationalism. Too often too isolated in this debate, the leadership of the SNP has forthrightly made the case for immigration, uncowed, unbend, courageously. They are to be commended. Alex Salmond recently put it well in the <a href="https://www.youtube.com/watch?v=ybDr_vYbEgE" target="_blank">Oxford Union</a>. We know being involved in mankind is nothing to fear. We know that the lean sphere of sovereignty is a boyhood fantasy. We aren't afraid of negotiating, even negotiating hard-headedly, in our collective interest. We abjure easy solutions to complex problems. </div>
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Confident people -- truly confident countries -- do not hirple through their collective lives, cramped and shivering. They do not go into the darkness of the future with fear. They are emboldened by their own best traditions. They are fierce friends. They don't cringe. They see opportunities, more often than they tremble. As a Scottish Nationalist, I am soaked in pessimism about the United Kingdom. This much you know. But this is a land with a better tradition which tomorrow will be weighed in the balance. I have no confidence about what the result might be -- but I know this. </div>
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Despite my long-standing pessimism about the UK, I'll be exiled to the doldrums of unhappiness on Friday, if Britain crashes out of the European Union. The bottom will - once again - be speared out of what I thought was a bottomless bucket of disappointment with Britain. This may seem perverse. You are right. The force of those multitudes again, I suppose. But in my bones, I'm an optimistic soul. I remain a Scottish nationalist with regrets, still somehow stubbornly attached to the possibility of a better Britain. It will be a painful to discover my most harsh suspicions about this union are true. I'm not trying to be cute. I will be horribly unhappy to be confirmed in my prejudices.</div>
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Tomorrow is one of those days in our history which will try Britain's soul. It is difficult, even to begin to calculate the consequences of a vote to leave. Yet I cast my ballot, more in hope than expectation. And I cast it for my friends, sentimentally perhaps, but unrepentantly, a European.</div>
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Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.com21tag:blogger.com,1999:blog-1638916042737526171.post-80058695898473196022016-06-20T17:49:00.004+01:002016-06-20T18:10:29.475+01:00What would Brexit mean for devolution?<div class="separator" style="clear: both; text-align: center;">
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As we hirple towards the EU referendum finish line, I'm often asked a question. What would a Brexit vote mean for devolution? If we crash out of the European Union, would Holyrood - in a trice - become more powerful? The Lord Chancellor, Michael Gove, toyed with this kind of rhetoric last week, <a href="http://www.heraldscotland.com/news/14553330.Holyrood_could_get_new_powers_to_control_Scottish_immigration_if_UK_leaves_EU__says_Michael_Gove/" target="_blank">claiming that unprecedented</a> immigration powers would be devolved to the Scottish Parliament, in the event of Brexit. If you'll believe that -- you'll believe anything. Disembark from the banana boat which brought you up the Clyde. Check the back of your head for buttons immediately. </div>
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But a similar argument was made back in February by <a href="http://www.bbc.co.uk/news/uk-scotland-scotland-politics-35601764" target="_blank">Drew Scott</a> of the University of Edinburgh. Scott highlighted that, at present, a number of devolved issues - including environment, agriculture, fisheries and social policy - are guided by EU law. He suggested that "if the UK leaves the EU, then by default these powers will come back to the Scottish Parliament, not to the UK."</div>
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Is he right or wrong? And if so, why so? Show us your working. Let's start with the short version: for the main part, no, it isn't true. A Brexit vote on Thursday - in and of itself - does next to nothing to strengthen the powers of the Scottish Parliament. Nowt. Zip. Nada. Now - as always - we are subject to the whims of the majority in the House of Commons, which now - as always - ultimately decides what powers Holyrood will and will not be trusted with. Now - as always - this will be decided by the UK majority in Westminster. </div>
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So how does it work? Here, things get a wee bit more complicated. Under section 29 of the Scotland Act, Holyrood's legislation must comply with EU law. That's why, for example, the Scottish Government's minimum alcohol policy could be challenged. Whisky manufacturers argue that it represents an unjustifiable interference in Europe's common market in liquor, indirectly discriminating against European companies, able to sluice out wine on the cheap. The case continues.</div>
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But that's not the only thing which limits Holyrood's powers in fields dominated by pan-European regulation. The Scotland Act doesn't list all the issues which the Scottish Parliament has control over. Instead, the legislation knocks that logic on its head. It lists only those topics which Holyrood can't legislate about. You find all this in Schedule 5. We call these "<a href="http://www.legislation.gov.uk/ukpga/1998/46/schedule/5" target="_blank">reserved matters</a>" - and if you take a look at them, you'll see that in most of the areas identified by Professor Scott, there would be limited or no "automatic" strengthening of Holyrood at all, even if EU law was disapplied. </div>
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Take the issue of fishing, for example -- a hot button. Under C6 of Schedule 5, the "regulation of sea fishing outside the Scottish zone (except in relation to Scottish fishing boats)" is a reserved matter. It will remain so unless and until Westminster removes this restriction. The same goes for many other areas of policy. With some limited exceptions, for example, equal opportunities remains reserved, despite agitation for its devolution in the last Scotland Bill. Head H reserves employment law to Westminster, including the minimum wage, trade union legislation, the <a href="https://en.wikipedia.org/wiki/Employment_Rights_Act_1996" target="_blank">Employment Rights Act</a>, and so on. MPs decided that these should continue to be decided by MPs -- despite calls for their devolution as recently as last year. </div>
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Professor Scott's point is more convincing when it comes to agriculture and environmental policy -- neither of which feature prominently in the list of reserved matters. But competency without cash is a paper power. Will future UK governments match the agricultural subsidies which the EU Common Agricultural Policy has used to support the industry of our farmers? Will an austerity government become big rural spenders? Who knows?<br />
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The idea that you can - in a trice - "automatically" empower Holyrood across all these categories of governmental policy by leaving the EU is a naive fantasy. And that, before we get into the regulatory harmonisation which might be necessary if a weakened Brexit Britain is to cut the sort of trade deals with the rest of the bloc. Your guess is as good as mine about what the majority in Westminster would during during a post-Brexit interregnum. I don't know about you, but as a Scots lawyer, concerned with the powers of devolved parliaments and assemblies, I don't find the idea of "restoring" Westminster sovereignty over these fields terrifically reassuring. It is the usual grisly rhetorical prelude, anticipating bitter medicine. Pass the catheter. </div>
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The only folk you can be <i>sure </i>you are empowering is the Conservative majority in the House of Commons. And despite their infighting, their backbiting and their bitter internal tribalism -- there remains precisely no indication they are on course to lose the next general election, or the next. Nor is there any indication that Mr Cameron and his allies -- or Mr Johnson and his allies -- have the slightest interest in allowing Scotland to diverge from Westminster on workers' rights, equality, or immigration. Don't take my word for it. Just cast your mind back to the debates and votes on the last Scotland Bill, when Tory MPs <a href="http://lallandspeatworrier.blogspot.co.uk/2015/06/nationalism-without-regrets.html" target="_blank">trooped biddably</a> though the lobbies again and again to shoot down substantive SNP amendments. </div>
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I don't know about you -- but this seems like a remarkably powerless, unreliable, risky way of "taking back control" over these areas of social policy to me. </div>
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Now, you may well believe that after Brexit, everything will be different. You may believe that with Brexit, everything is possible. And in the most abstract, theoretical way -- for sure. But a sober worldly politics can't let itself be dazzled and distracted by abstract possibilities. Let's look at the probable, as well as the possible. Let's be tutored by our own experiences. Let's consider the social forces, actually in play. Let's contemplate who is actually likely to be empowered by crashing out of the EU. </div>
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After all: <i>who you gonna believe, Michael Gove, or your own lyin' eyes?</i></div>
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Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.com16tag:blogger.com,1999:blog-1638916042737526171.post-80527139999174248202016-06-14T12:59:00.001+01:002016-06-14T13:28:23.819+01:00Stone cold morons<div class="separator" style="clear: both; text-align: center;">
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The indycampers are morons. There's no getting around it, no sugar-coating it: stone cold morons. In -- legitimately -- resisting the Scottish Parliamentary Corporate Body's attempt to expel their small camp from Holyrood's grounds, the group have argued their case in a fashion which has lapsed from the divinely ridiculous to the grotesquely insulting. They have consistently ignored substantial legal arguments they might use to win their case, spending hours instead on eccentric, invariably doomed political points and barrack room lawyering. They are their own worst enemies.</div>
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<a href="http://www.bbc.co.uk/news/uk-scotland-scotland-politics-36520856" target="_blank">This morning</a>, they returned to Lord Turnbull's court, explaining that - months into their case and months after his first option - they still haven't tracked down a lawyer to represent them. The spokesmen for the camp went still further. They accused the judge of blasphemy, demanded the Queen appear to give evidence, demanded a jury hear the case, suggested that a key "spiritual" argument should be addressed by the court, declaring that "Jesus Christ the second is here and we're going to get our independence." </div>
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I have the utmost sympathy for litigants -- ordinary folk -- trying to formulate legal cases without the assistance of a lawyer. This is hard, sometimes impossible, work. The logic of our courts puts them at a clear disadvantage when faced - as the indycampers have been faced - with professional opponents, whose bread and butter work is understanding legal procedures, rules and principles.</div>
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Having to do all this on the hoof - for yourself - without access to legal databases, without inbuilt legal know-how gained over the years, is tough. The inequality of arms can lead to injustice. Some judges are sympathetic to the plight of party litigants, others less so. Some try to take an active hand, focusing the ordinary punter's attention towards the key legal arguments and issues, rather than letting them dangle in the wind. They try to even up the odds, between the represented and the unrepresented party. They keep their patience, and try to see justice done as best they can.</div>
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Lord Turnbull is such a judge. We can only presume he lost the card-cut in the judicial dining room in Parliament House, to find himself landed with this case. And despite all manner of provocations, interminable, boring and irrelevant submissions -- this Court of Session judge has exhibited the patience of a saint. He had bent over backwards to accommodate the indycampers. He has treated their arguments as seriously as he could. He has tried to find any crumb of substantive legal argument in their digressive, and often just plain oddball submissions to the court. And by gum -- Lord Turnbull actually found one. The judge lit up this arguable point with neon lights in his first opinion in the "<a href="http://www.scotcourts.gov.uk/search-judgments/judgment?id=b56813a7-8980-69d2-b500-ff0000d74aa7" target="_blank">sovereign indigenous people of Scotland</a>" case. He told them to focus on it. He sounded sympathetic.</div>
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And what have the indycampers done with this helping hand? On the evidence of today's hearing, they've completely ignored it, abandoning a potentially winnable legal point which could block Holyrood's eviction plan, preferring instead to indulge in more antics and insults. It is frustrating. It is baffling.</div>
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Here's the short version of how they might survive. The Scottish Parliamentary Corporate Body is a public authority. Under the Human Rights Act 1998, the actions of public authorities must conform with the rights protected under the European Convention. Article 10 protects free expression, Article 11 your right to freedom of assembly and association. Both of these are engaged by Holyrood's eviction plans, and both are qualified rights. </div>
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That means the state is entitled to interfere with your rights to speak your mind and freely to assemble -- but only if particular conditions are met. The restrictions on your rights must be (a) according to law and (b) in pursuit of a legitimate aim -- national security, public safety, for the prevention of disorder or crime, for the protection of health or morals -- that kind of thing. Lastly, any interference must also be proportionate, striking a fair balance between collective interests pursued by the legitimate aim, and the fundamental rights of individuals to express their views, and to assemble. This is for the court to decide.</div>
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And in his first opinion, Lord Turnbull actually sounded reasonable skeptical about whether evicting this small camp would represent a proportionate measure by the Scottish Parliamentary Corporate Body. Distinguishing the situation involving the indycampers from other nearly analogous occupations, the judge had this to say:</div>
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[67]<i> I have heard no evidence on the extent to which the respondents in the present case do, or do not, constitute an interference with the rights of others to access the grounds of the Scottish Parliament, or on any other matter which might fall to be weighed in a proportionality assessment. As a resident of Edinburgh though, I am familiar with the layout of the grounds surrounding the Scottish Parliament building and the general location of the Camp. As indicated by the petitioner, the Camp presently appears to occupy a small area at the very edge of the grounds which it owns and at the furthest point away from the entrance to the Parliament building. It is not immediately obvious that the presence of the Camp would inhibit the use of the grounds by others for picnicking, dog-walking, or the like, as founded upon by the petitioner. Nor is it immediately obvious that there are any real security or logistical concerns of the sort drawn attention to by the petitioner and which might weigh the proportionality balance in its favour. </i></blockquote>
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Abandoning their ridiculous antics, ceasing gratuitously to insult the trial judge, focusing on this legal argument -- might actually get them somewhere. But after this morning's session, that looks like a fool's hope.</div>
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Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.com18tag:blogger.com,1999:blog-1638916042737526171.post-88734465148896815772016-05-26T17:17:00.001+01:002016-05-26T17:17:34.117+01:00AWOL<div class="separator" style="clear: both; text-align: center;">
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May may not be the cruellest month -- but it is certainly the busiest. Between the election and its aftermath, the end of teaching and a small burst of sunshine, academic writing and conferencing, my examinations and the waist-high pile of marking they generate, this peat worrier has been crucified by work this month, by turns zonked, distracted and uninspired. </div>
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So just a wee note to say -- I'm not dead; I haven't given up the ghost. The lectures are now over. The papers are graded. The brief sun has sunk beneath a more familiar Glasgow raincloud. Normal blogging service to resume here very shortly.</div>
Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.com13tag:blogger.com,1999:blog-1638916042737526171.post-78038281149259929372016-05-02T17:31:00.000+01:002016-05-03T08:56:41.907+01:00Spinning Plates<div style="text-align: justify;">
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It has been a slow April here on the blog. For the past couple of weeks, the inspiration for political writing has escaped me. Everything I have attempted has been lumpen, unreadable dross. But the mojo - happily - seems to be returning as we head into the final week of this Holyrood campaign. In the <i>Times</i> this week, I wrote a <a href="http://www.thetimes.co.uk/article/jaunty-stunts-do-not-a-serious-leader-make-v8bfgnhfk" target="_blank">rather abrasive</a> explanation of why I'm sick to the back teeth of Ruth Davidson, Scotland's most overrated politician. The Scottish Tory leader has emerged from this Holyrood race trivialised by her antics, a rather diminished figure.<br />
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Although personally popular by Tory standards, Labour's weakness putting her in contention for second place, Davidson has run a relentlessly vacuous campaign which does her little credit. If straddling a bison and donning a captain's hat was all that was needed to detoxify the Tory party - Annabel Goldie should have tried it years ago. Though I admit, it is hard to imagine the late David McLetchie wielding an <a href="http://www.dailyrecord.co.uk/news/politics/con-woman-ruth-davidson-clown-7879377" target="_blank">ice hockey stick or racing about on a snow mobile</a>. Here's an<a href="http://www.thetimes.co.uk/article/jaunty-stunts-do-not-a-serious-leader-make-v8bfgnhfk" target="_blank"> excerpt</a>:</div>
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But I'll be honest with you: I do not enjoy blogging elections. Unless you focus on some pernickety point of electoral arithmetic, or one of your opponents adopts a truly objectionable or dishonest policy, elections can be tough things for partisan writers who nevertheless do not want to become propagandists or cheerleaders. That'd be even more objectionable than bad writing. Even more intellectually compromised. Even duller. And in any case, the role doesn't suit me. If this is what you're after, you'll receive a far superior service elsewhere. </div>
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I will, as you might expect, be casting my constituency vote for Nicola Sturgeon in Glasgow Southside, and for the Nats on the Glasgow regional list too. I do so with few reservations. I'm a <a href="http://lallandspeatworrier.blogspot.co.uk/2014/06/times-wrong-way-telescope.html" target="_blank">fourth generation</a> Scottish Nationalist. I'm in this for the long haul. Like the overwhelming majority of the party's supporters, I hope I'm no dupe, no drone, no uncritical robot.<br />
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I suspect I've enjoyed the personalisation of this Holyrood campaign about as much as the First Minister -- which is to say, not a great deal. The politics of personality isn't the kind of politics which attracts me most. That said, there is a great deal to be said for voting for folk whose judgement you trust, whose broad outlook you share.<br />
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Yes, politics and government is about policies. It is about what you achieve, and only passingly about who achieves it. But given the breadth and complexity of modern government, given the breadth of offices and issues which the next Scottish Parliament and Government must consider -- none of us can be the masters of every brief. You might know your way around the economy, but be dumb as a brick about justice, welfare, the NHS. You might be hot on carers, or renewables, or tertiary education but cold outside your area. Whatever. None of us - seriously - are capable of weighing all of the parties' policies in the balance.<br />
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Within the limits of the information available to most of us, however, we can judge the folk involved, weighing the kind of person who takes the decisions, and the sort of values they will bring to bear in making them. Nicola strikes me as a good woman, a smart woman, a sincere woman. She is aware of her limits. She makes no pretence at infallibility. But she's tough, fierce -- and most attractive of all, perhaps -- has visibly grown as a character. <br />
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You get the feeling that Alex Salmond sprang fully-armoured into life with a sharp tongue and a quick brain, an assured -- perhaps too assured -- political patter merchant even as a young man. The current First Minister has tracked a different trajectory. One of my friends compares her to Andy Murray - there is a residual touch of reserve there, of native shyness overcome, which I think many Scots recognise, recognise in themselves, and find attractive.<br />
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The tailored Mother of Dragons we see before us is hard won. This is not to imply the Sturgeon persona is confected, or artificial. We, all of us, play in and with roles. For my part, I suspect Nicola's now universal recognition actually makes life easier for her, as she has the battle-armour of the persona gird about her, wherever she goes. It is bound to burn off any residual shyness or reserve.<br />
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I'd be concerned if the campaign was only the game of personalities -- but it hasn't been. The SNP manifesto has a heft and reality to it which is to be commended. We see an emergent Scottish governmentality, and an emphasis on <a href="http://lallandspeatworrier.blogspot.co.uk/2016/03/nicolas-new-appeal-to-self-interst.html" target="_blank">universal services which</a> is - just beginning - to pull together into a coherent story of Scottish self-government. What is striking about this campaign is that it is only - really - the Tories who are in open dissent from the idea that prescriptions ought to be free, that tuition fees ought to be paid, that every baby should be boxed. Johann Lamont's "something for nothing culture" riff has been dumped. But there is a great deal more to do to weave all this into a coherent whole.<br />
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But if you have different political ideas and different allegiances, I'd encourage you to exercise them. All political activity involves compromises of some kind. Big parties, small parties, large movements, small campaigns -- all of them involve trade offs, and a cold eyed assessment of what your priorities are, and what internal compromises you are prepared to put up with. People are generally reluctant to admit this is true -- particularly during election time -- but in my experience, most Nationalists understand an awful lot more about the compromises inherent in politics than many of their critics give them credit for.<br />
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You find individual policies - missing in the SNP manifesto - in the Labour, Green and Liberal Democrat efforts with which I have considerable sympathy. I'm sure supporters of other parties will find material for their own heresies and dissents in the pages of their opponents' platforms. This isn't the end of the world, despite all the grisly point-scoring which inevitably tends to accompany it.<br />
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Some folk, of course, are incorrigible puritans, nature's commissars determined to execute any perceived backsliding from their own positions. I salute them. They're welcome to their purity. But government is inevitably an adulterating enterprise. It is a game of spinning a thousand plates, and trying to minimise the number which fall to the hard earth with a clatter. Taxation, education, energy, justice, local authorities, farms and forests, the health service and social care, an emerging Scottish approach to disability and carer benefits -- the constitution.<br />
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If there's juggling to be done, I trust Nicola to do it.<br />
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Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.com14tag:blogger.com,1999:blog-1638916042737526171.post-16683122221684558672016-04-26T14:54:00.000+01:002016-04-26T16:33:34.731+01:00Just how solid is Scottish Labour's list vote?<div class="separator" style="clear: both; text-align: center;">
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Amid all the process and horse race stuff in this Holyrood election, there is one rather important question going conspicuously unasked: just how solid is Scottish Labour's list vote anyway? </div>
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All the mischief has focused on the loyalty of folk likely to vote SNP in the constituencies. Will they stick with "Nicola Sturgeon for First Minister", or split their tickets, lending support to some other party for the regional calculation? This is all well and good. But the endless, circular conversation about the virtues and vices of <i>#BothVotesSNP</i> overlooks the fact that it is <i>Kezia Dugdale's</i> party whose fate will largely be determined by the d'Hondt calculations and the weight of support she can command on the regional ballot. </div>
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And Scotland's electoral history being what it is, I wonder if Scottish Labour aren't more vulnerable to - potentially catastrophic - leakage in regional support than we've generally noticed. As countless commentators have pointed out, for years, in the wake of devolution, Labour didn't have a second vote strategy - they didn't need a second vote strategy - being comfortably returned to office on the back of the first-past-the-post constituencies and their reliable confrères, the Liberal Democrats. </div>
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In this model, if Scottish Labour's electoral fortunes were to improve, you'd expect this to express itself in constituency gains rather than regional progress. But if the Holyrood map broadly follows Westminster's this election, the whole basis of Labour support will have been rearranged on a regional basis. In fairness, Scottish Labour are pushing their own <i>#BothVotesLabour </i>message. I'm sure old time Labour supporters who have stuck with the party will heed this and maintain a disciplined ticket. But the party aren't going great guns with the message. Which seems a decidedly strange thing, considering how critical a solid, loyal regional ballot is for the party's standing in the next parliament. </div>
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Look at this historically. Take 2011. Alex Salmond's SNP secured 902,915 constituency ballots, and 876,421 in the regions. We shouldn't understand this as a straightforward 26,494 drop. The regional tally will include a decent whack of folk who voted for other parties in constituency contests. My favourite 2011 illustration of this dynamic was Ayr. A straightforward SNP vs Tory runoff, Conservative candidate John Scott secured 12,997 constituency votes, and a 1,113 vote majority over his SNP opponent. But in the region, the folk of Ayr gave the Tories only 8,539 votes, a drop of 4,458 on their constituency figures - and the SNP were the obvious beneficiaries of the Tory regional slump. Chic Brodie took 11,884 constituency votes, but Ayr's regional tally gave the Nats 14,377, an increase of 2,493 which put them 5,838 regional votes ahead of the Tories who'd routed their constituency campaign. </div>
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So what about Labour? In 2011, Iain Gray took 630,461 constituency papers and just 523,559, losing over 100,000 votes between ballot papers. Like the SNP picture, we shouldn't oversimplify what was going on under Labour's grand totals. It almost certainly wasn't a tit for tat drop. Voters will have moved in, and out of, Labour's constituency and regional columns. But this was a discernibly squishier performance than the Nats in a closely contested campaign. In the event, Labour holds in constituencies in their traditional heartlands staved off some of the harsher consequences of this "voter promiscuity" in 2011. But if all does not go well for the party in its constituency battles in Glasgow and elsewhere - a gap of anything like 100,000 people is seriously going to hurt. And this, before we get into questions of differential turnout.</div>
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Part of me wonders if the electoral map in 2016 doesn't encourage an awkward dynamic for Kezia Dugdale, likely to encourage opponents of the SNP to lend her their constituency ballots, while distributing their regional votes elsewhere. </div>
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Imagine you are a Labour voter of what we'll call the Alex Massie tradition. You voted No in 2014. You don't much care for the Nats. You live in a constituency where the Tories or the Lib Dems cannot prosper, where they're not even in the running. What do you do? Option One: damn the arithmetic and vote for what you believe in. If the local Tory or Liberal Democrat gains only a couple of thousand votes? Well, you salute their efforts. Alternatively, you might consider Option Two: use your constituency vote tactically vote for the Labour candidate most likely to frustrate the SNP. In Leith, say, you might support Lesley Hinds. In Glasgow, you might take a punt on Johann Lamont against Humza Yousaf. </div>
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If Option Two seems attractive to you, however, there is a snowball's chance in hell that you're going to stick with the Labour party in the regions. You might also have a soft spot for one of the smaller parties who are only really in contention in the regional list. Perhaps you favour Brexit, and want to see a David Coburn, rolling around Holyrood, blaggarding the European Union. Perhaps Patrick Harvie seems like a sound character, and you want a decent Green delegation in Holyrood, advocating environmental concerns. <a href="http://lallandspeatworrier.blogspot.co.uk/2012/05/anderston-hillhead-partick-west-vol-iv.html">In local elections</a> in areas in which they do well, the Greens are pretty transfer happy from a curious range of sources, including Scottish Tories. Perhaps you'd like RISE, modestly, to rise.</div>
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Given the parts of the country where Labour remains strongest against the SNP, I'd suggest the calculating anti-Nat and the floating, unpartisan, split-ticket voter is far more likely to cast a - perhaps doomed - constituency ballot for them rather than the vital, life-giving regional support Dugdale needs to survive. In fairness, <a href="http://survation.com/april-holyrood-voting-intention-survation-daily-record/">recent polls</a> suggest Labour's performance across the two ballots is pretty solid, at a (dismal) 18% to 19%. A squishy list vote may be the least of her concerns. Time will tell.</div>
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Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.com14tag:blogger.com,1999:blog-1638916042737526171.post-3952321270054073232016-04-14T14:45:00.001+01:002016-04-14T21:20:54.159+01:00Red meat from Ruth Davidson, but where's the beef?<div class="separator" style="clear: both; text-align: center;">
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"End automatic early release!" It's red meat for the Tory base, and hearty stuff. Ruth Davidson's <a href="http://www.scottishconservatives.com/wordpress/wp-content/uploads/2016/04/Scottish-Conservative-Manifesto_2016-DIGITAL-SINGLE-PAGES.pdf" target="_blank">Scottish Tory Manifesto</a>, published yesterday, contains the following passage on the party's proposals for criminal justice:</div>
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<i>"We have long campaigned for the scrapping of automatic early release. The changes brought in by the SNP affect only 3% of prisoners (those on long sentences), but we believe the presumption for all sentences is that they should be served in full, with additional discretion for the Parole Board. The time offenders spend behind bars should be decided by judges and not politicians. Ending automatic early release would mean offenders serving the sentence handed out and spending more time in rehabilitation."</i></div>
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There are a few well-rehearsed ironies about this. Automatic early release was brought in across the UK by John Major's Conservative government in 1993. If every prisoner is going to serve his whole tariffs behind bars, it is far from clear what "additional discretion" she thinks the parole board might legitimately exercise. Perhaps she envisages some modest, compassionate exceptions to the massive programme of incarceration she is proposing. But I'm more interested in the resource implications of all this. </div>
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To come even to a sketchy understanding of these costs, we have to take a closer look at (a) the automatic early release rules which currently apply and (b) the characteristics of the Scottish prison population.</div>
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At present, the amended <a href="http://www.legislation.gov.uk/ukpga/1993/9/contents" target="_blank">Prisoners and Criminal Proceedings (Scotland) Act 1993</a> governs early release. So how does it work? The law distinguishes between (a) short term prisoners and (b) long term prisoners. Lifers are handled differently, serving the punishment part of their sentence, before parole may even be considered. Angus Sinclair, for example, <a href="http://www.scotcourts.gov.uk/search-judgments/judgment?id=ea260ea7-8980-69d2-b500-ff0000d74aa7" target="_blank">received a 37 year punishment part</a> for the murders of Christine Eadie and Helen Scott, forever associated with the World's End pub in Edinburgh. For Sinclair, life means life.</div>
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The <a href="http://www.legislation.gov.uk/ukpga/1993/9/section/27" target="_blank">1993 Act defines</a> a short term prisoner as someone serving a prison term of less than four years, with a long term prisoner defined as a convict sent down for four years of more. A short term prisoner is <a href="http://www.legislation.gov.uk/ukpga/1993/9/section/1" target="_blank">entitled </a>to be released unconditionally from prison after serving <b>half </b>their sentence. A long term prisoner is entitled to be released on licence -- and thus is vulnerable to recall if they get up to mischief -- after <b>serving two thirds</b> of their prison sentence. The rules for prisoners serving longer sentences <a href="http://www.legislation.gov.uk/asp/2015/8/contents/enacted" target="_blank">were tweaked</a> at the tail end of the Holyrood session, limiting automatic release to the last six months of a long term prisoner's sentence. This, Ms Davidson wants to sweep all this away. </div>
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Fine. But what would it cost? And how many people are we talking about? Official statistics show that the average daily prison population continues to hover around the <b>8,000</b> mark. Figures from July 2015, for example, gave an daily average population of 8,062. The overwhelming majority of these men and women are serving "short sentences" - sentences which would double in length under a Davidson administration. Take a look at this Scottish Government chart from <a href="http://www.gov.scot/Publications/2015/12/5123/3" target="_blank">December 2015</a>, on receptions to prisons by year, and by sentence length.</div>
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Taking 2013/14, you can see there were around 1,000 prisoners sentenced to prison terms of more than 2 years but less than 4 years. A further 2,500 individuals entered jail with a prison tariff of 3 months or less, with around 3,000 people serving between 3 month and 6 month sentences. Finally, over 5,500 serving sentences of between 6 months and two years. All of these incoming prisoners - under Davidson's plans - would end up serving double their current terms behind bars. The Scottish Tories proposing to double the prison terms served by - roughly - <b>12,000</b> people.</div>
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Now, you may or may not have sympathy with the principle of this policy, either on grounds of vengeance, or transparency. I'd merely note that our judges aren't idiots. They understand perfectly well that those they sentence to prison terms will be released once they've spent sufficient time in prison. They aren't hoodwinked by early release. Indeed, some judges may well factor the real term to be spent incarcerated into their sentencing. </div>
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But ask the money question. Do a fagpacket calculation. Consider the implications. Under Ruth Davidson's plans, every single short term prisoner will be serving <b>double </b>the period of incarceration they are currently serving, during which period, you and I will be picking up the tab for their food and housing, their supervision, and their modest diversion while behind bars. </div>
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Let me remind you also: the costs of doing so are not insignificant. The average annual cost per prisoner place for <a href="http://howardleague.scot/news/2014/october/scottish-imprisonment-recent-trends-and-costs" target="_blank">2013–14 was <b>£33,153</b></a>, excluding capital charges, exceptional compensation claims and the cost of the escort contract. </div>
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You may well think this a tariff worth paying. But it is no small amount of money. And this estimate is just the revenue cost. We haven't even begun to factor in the implications of cancelling early release for capital spending, or the social costs of further swelling the population of our Victorian prisons, with implications for the quality of life, the degree of supervision available, and the availability of rehabilitation services. </div>
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Scotland simply does not have the space in its overstuffed prisons to accommodate a significantly larger prison population. Overspill facilities will have to be built, and funds allocated and buildings planned to ensure that our prison population is kept in appropriate conditions with a decent minimum standard. And that takes money, and that takes time. But what does Ms Davidson say about how she intends to meet these very significant revenue and capital costs? Sod all. What plan does her manifesto outline? No plan at all. And where will the additional cuts fall to meet the significant costs of this policy? Answer came there none. </div>
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No doubt Ms Davidson's answer, if challenged about any of this would be "We're just the plucky opposition. We're losers. We're only trying to give Scottish Labour a kicking: not to get into government." But that won't do at all. "I've no chance of power and therefore I should be able to make whatever uncosted pledges I like" shouldn't cut it either. Just ask that <a href="https://www.youtube.com/watch?v=mfZumVi_Dwc" target="_blank">mighty master of detail</a>, David Coburn MEP.</div>
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If Ruth Davidson wants her party to be <i>the </i>serious party of opposition in Holyrood, she's going to have to take her own policy platform much more seriously. If this massive, uncosted justice pledge is anything to go by -- like her photo ops and her <a href="http://lallandspeatworrier.blogspot.co.uk/2016/03/she-wore-blue-collar.html" target="_blank">"blue collar" rhetoric</a> -- it's all still a big joke.</div>
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Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.com10tag:blogger.com,1999:blog-1638916042737526171.post-48511305628359728092016-04-13T18:27:00.001+01:002016-04-13T18:45:44.439+01:00A first for women: Lady Dorrian appointed Lord Justice Clerk<div class="separator" style="clear: both; text-align: center;">
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Today, <a href="http://www.scotland-judiciary.org.uk/24/1579/Appointment-of-Lord-Justice-Clerk" target="_blank">it has been announced</a> that Leeona Dorrian has been appointed to the position of Lord Justice Clerk, Scotland's second most senior judge. Congratulations are to be extended to Lady Dorrian. But this is also a quietly historic occasion: Lady Dorrian is the first woman in Scottish legal history to hold this post.<br />
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At this stage, crustier lawyers amongst you may begin to shift uncomfortably, rhubarbing about individual merit, changed days, and so on. And fair enough, as far as it goes. But we do ourselves no favours if we forget our history, and Lady Dorrian's appointment is historic.</div>
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For the overwhelming majority of Scotland's history as a distinctive legal jurisdiction, women have been subject to the law, but haven't been permitted to shape it, whether in parliament, or on the bench. The progress of women's rights in the <a href="https://en.wikipedia.org/wiki/Women%27s_suffrage_in_the_United_Kingdom" target="_blank">democratic domain</a> at the beginning of the twentieth century is a weel-kent story. The 1918 Representation of the People Act conceded the principle of women's suffrage. This principle became more universal thereafter. Less well known, however, is the history of women's exclusion from the legal field. </div>
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Until the Sex Disqualification (Removal) Act 1919, women were not permitted to become solicitors or advocates in Scottish courts. This was just one of a range of disqualifications which prevented women from fully participating in civic and political life. In the 1880s, the legality of these bans were challenged by women's rights activists in courts north and south of the border. In <i>Nairn v Scottish Ministers</i>, for example, a group of women challenged the failure of the ancient universities to issue them with ballot papers. These women were graduates. They held degrees. The legislation which creates these university constituencies referred only to "persons" who were entitled to vote in their elections. Aren't women "persons"? </div>
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Remarkably, the highest court in the land held that they were not. Rejecting the women's case, the Lord Chancellor, Lord Loreburn, upheld Edinburgh University’s refusal to issue its women graduates with ballot papers, saying: “this disability of women has been taken for granted", concluding "it is incomprehensible to me that anyone acquainted with our laws or the methods by which they are ascertained can think, if indeed, anyone does think, there is room for argument on such a point." So it was official: legally, women weren't "persons". But dissatisfaction drove reform. The 1919 Act allowed women to become officers of the court, if they met the requisite standards of qualification and training. It turned out women were "persons" after all.</div>
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The first woman was called to the Scottish Bar in July 1923 -- Margaret Kidd KC. Kidd was a fairly quiet, very conservative trailblazer. She was subsequently appointed sheriff and sheriff principal, but she remained a lonely representative of womankind in the corridors of Scottish lawyering for a remarkable period of time. The second female advocate – Isabel Sinclair – was not admitted to the Faculty until 1949, some twenty-six years later. It took until 1981 for the Faculty roll to boast more than 10 female advocates. It is unsurprising, as a result, that the experience of pioneer women in the late 1970s, 1980s and 1990s was not always positive. <a href="http://www.scotsman.com/news/women-now-joining-the-legal-profession-in-record-numbers-1-575577" target="_blank">One <i>Scotsman</i> article</a> recounted this example from the life of the new Justice Clerk:</div>
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<i>Isabel Sinclair QC “was rebuked by Lord Cameron for wearing red lipstick in court. As recently as a decade ago Leeona Dorrian QC was ticked off for wearing a red ribbon around her neck after the judge told her she was “improperly dressed.’”</i></blockquote>
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The first woman was not appointed to the Court of Session bench until 1996, when Hazel Aronson - Lady Cosgrove - was appointed. That's in my lifetime - only twenty years ago. Recent Law Society of Scotland data shows the history of male dominance in Scots law is being - slowly - challenged. Currently, there are over 11,000 solicitor enrolled with the Law Society, with a roughly 50/50 breakdown. But a look at the longer-term figures show that the feminising of the Scottish legal profession remains a modern, fairly recent phenomenon. Just consider the statistics from the turn of the millennium onwards.</div>
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So bravo, Lady Dorrian. I'm sure the appointment reflects considerations of personal merit above all. But let's not overlook the understated symbolism of her appointment too. Although the law has hardly been an early adopter, Lady Dorrian's appointment shows that even the Scottish legal establishment cannot evade the gender revolution forever.</div>
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Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.com3tag:blogger.com,1999:blog-1638916042737526171.post-5279714358907805962016-04-03T20:58:00.000+01:002016-04-03T21:20:20.984+01:00More Than A Shrug<div style="text-align: justify;">
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It is a delicate thing, writing about someone else's sexuality, with many pitfalls and opportunities for bumptiousness and embarrassment. I approach the whole thing gingerly, and I hope, humanely.<br />
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As many of you will have noticed, this week, Kezia Dugdale <a href="http://www.theguardian.com/politics/2016/apr/02/kezia-dugdale-relationship-with-a-woman-scottish-labour-referendum" target="_blank">told the <i>Fabian Review</i></a> that she is in a relationship with a woman. “I have a female partner. I don’t talk about it very much because I don’t feel I need to,” the Scottish Labour leader said, in the midst of a wide-ranging political interview, which has gone on to <a href="http://lallandspeatworrier.blogspot.co.uk/2016/04/old-habits.html" target="_blank">cause her trouble for different reasons</a>. </div>
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The public reaction to Dugdale's personal aside has been overwhelmingly positive and supportive, which is a grand and excellent thing. No doubt some dismal Free Church minister is boiling away on the hob about it -- but most folk will be quite content to judge Kezia Dudale on her relative political and personal merits, and not her sexuality. Good. This is a historical achievement -- but still, something about how the story has been reported makes me a little uneasy.</div>
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First, the background. The truth is, it has taken Dugdale a substantial period of time to come out to the general public, although all the hacks and the political world have known about her domestic circumstances for a lengthy period of time. Hell, even I'd heard tell. As hawk-eyed folk might have noticed, <i>Telegraph </i>Scotland editor<i> </i>Alan Cochrane carelessly - and I assume, quite accidentally - outed the Scottish Labour leader some months ago, by muddling up the number of LGBT leaders in Holyrood, and clumsily incorporating Dugdale into his copy. This <i>faux pas</i> went by, unremarked, but not unnoticed.<br />
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To be absolutely clear - I mention this as no criticism of Kezia Dugdale. She is entitled to expose as much - and as little - or her personal life to public scrutiny as she cares to. But it is an eloquent illustration of how much times have changed, that the Holyrood press pack - with only a little befuddlement about the delay - left it to the Scottish Labour leader to come out to the country, in her own terms, at her own time.<br />
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But I wonder if we aren't doing Ms Dugdale some kind of injustice, to say that her terse, carefully coordinated and long-germinating public profession of her sexuality should attract only a general shrug. I'm reminded of Alex Massie's essentially <a href="http://blogs.spectator.co.uk/2016/01/david-mundell-comes-out-as-the-first-openly-gay-tory-cabinet-minister-so-what/" target="_blank">kind and humane thoughts</a>, on David Mundell's public recognition of his sexuality (which like Kezia's, came after a lengthy period of speculation, in that odd space, between the public and the private). Massie's slogan was; "so what?" And "so what" indeed.<br />
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In one sense, this emancipated public indifference to the personal lives of our politicians is much to be wished. Who cares? But let's not overlook the emotional trouble - the heartsick struggles - which it may have taken for both Dugdale, and Mundell, and Davidson and Harvie before them, publicly to avow these aspects of their personal lives.<br />
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As recently as the early 2000s, the <i>Daily Record </i>disgraced itself, spearheading Brian Souter's vile, sleazy and neurotic campaign against informing young people in schools about the realities of LGBT sexuality. Give the self-appointed spokesmen of God an inch, and <a href="http://lallandspeatworrier.blogspot.co.uk/2016/03/john-deighan-sans-class-sans-gorm-sans.html" target="_blank">they will still say the most remarkable, illberal things</a>. Just this year, I had my young law students read through what the Kirk and the <i>Scotsman</i> had to say in the 1960s, when the decriminalisation of same-sex relationships was first proposed in the United Kingdom.<br />
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Their horrified reactions about the rigidly righteous moral judgements of their ancestors remains one of the most memorable moments of 2015. My band of thoughtful 20 year olds simply couldn't contemplate that their parents and grandparents had adopted to cramped, so illiberal, so unimaginative a point of view. They looked at the past with naked, almost universal, disbelief. While England swept away the great part of its discriminatory law in the late 1960s, Scotland continued to criminalise the great part of ordinary homosexual activity until the 1980s. This was before I was born -- before my students were born -- but only just.<br />
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If your inclination is to shrug about Kezia Dugdale's considered aside about her sexuality -- I salute you. But spare a moment to salute her too. For her courage. For her strength. For her indefatigability. Even in Scotland's now more open political culture, it is no mean thing that she, and Ruth Davidson, and Patrick Harvie, and David Mundell, have done. They deserve - all of them - more than just a shrug.<br />
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Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.com14tag:blogger.com,1999:blog-1638916042737526171.post-5694448700362839552016-04-03T11:15:00.004+01:002016-04-03T13:53:03.653+01:00Old Habits<div style="text-align: justify;">
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In the <i>Sunday Times</i> this morning, under the legend, <i><a href="http://www.thetimes.co.uk/edition/scotland/labour-at-war-as-dugdale-gaffes-ch5cntf83" target="_blank">"Labour at war as Dugdale gaffes,"</a></i> ubiquitous and available "senior figures" in the party are quoted. Their verdict on Kezia Dugdale's week isn't terrifically healthy. She is, they suggest, "badly damaged" as the result of her muddled comments on how she might vote in a future independence referendum. One even described it as her "Subway moment", recalling the moment when Iain Gray sought refuge behind a meatball marinara, waylaid by Sean Clerkin in Glasgow Central Station in 2011. </div>
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Now, Dugdale has <a href="http://www.heraldscotland.com/opinion/14400573.One_thing_you_can_always_depend_upon__Labour_shooting_itself_in_the_foot_at_an_election/" target="_blank">not had her troubles to seek this week</a>. There has been indiscipline. There have been mispitches. But surely there are enough folk like me in the firmament to point this out, without her comrades gleefully piling in, breathing unholy life back into a bad news story which would otherwise be on its last legs. The <a href="http://www.thetimes.co.uk/edition/scotland/labour-at-war-as-dugdale-gaffes-ch5cntf83" target="_blank">killer quotations</a>:</div>
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<i>“This is an almighty clusterf**k,” said one senior Labour source. “It just plays into the Tory line that they are the true defenders of the Union, even though that’s not true because it’s the Tories who introduced English votes for English laws and caused the EU referendum. Kez should have been landing blows on them, not on the Scottish Labour party.”</i> </div>
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<i><i>One said Dugdale had “handed a massive gift to the Tory party” at a time when they were under pressure as a result of a backlash against the chancellor’s budget. “Kez has again let them off the hook.”</i> </i></div>
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<i><i>Another said it was Dugdale’s “Subway” moment — a reference to the defining moment of Labour’s ill-fated 2011 Holyrood campaign when its leader Iain Gray sought refuge in a sandwich shop after his election campaign launch was hijacked by a protester.</i></i></div>
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As a hardened partisan, and no friend of the party, I suppose I ought to meet news of this utterly gratuitous infighting with an evil chortle. But Scottish Labour's capacity for indiscreet and poisonous internal briefing remains a thing of wonder and horror to me. Even electoral calamity - apparently - can't wean the party off its old habits of backbiting and internecine conflict.<br />
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After disaster has engulfed the party in Westminster, as it fights for its life in Scotland, as its untried leader faces a little turbulence along the way, as all election campaigns must -- you decide to spill the beans to the press, well knowing that an article of this kind is the only logical outcome? Jeezo. You wonder which bored and embittered former MP might be responsible. "If we must lose, let's lose in the most internally divisive and publicly exposed way possible." Just a little lick of the cloak and the dagger, for old time's sake.<br />
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Their analysis may be perfectly sound, but quite what they imagine they're achieving is beyond me. Snark of this kind provides a little entertainment for folk like me on a wet Sunday morning. It adds to the gaiety of the nation. But if these "senior sources" are true friends of the Scottish Labour Party, their shadowy, counter-productive interventions are - fundamentally - crackers.</div>
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Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.com18tag:blogger.com,1999:blog-1638916042737526171.post-18392544603597434712016-03-30T19:07:00.003+01:002016-03-30T19:48:18.596+01:00Ruth Davidson's damaging rookie error<div class="separator" style="clear: both; text-align: center;">
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I was out last night, tripping the light fantastic, and so conspired to miss STV's leaders' debate and David Coburn's splendid <a href="https://twitter.com/jonnohopkins/status/714925981270614016" target="_blank">periscope broadcast in parallel</a>. Having read this morning's notices, and caught up on last night's highlights, you can't help but be struck by the clatter Nicola Sturgeon gave Ruth Davidson. As is often the case, it all began with an innocuous question.<br />
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The combative STV format gave political opponents the opportunity to cross examine one other in detail. While the First Minister is put on the spot every week, the Scottish Tory leader generally benefits from asking the question. Her own agenda has been generously sheltered from equivalent scrutiny. I make no complaint about that. Decisions taken by Nicola Sturgeon's government impact on people's lives. Ruth Davidson's policies, with the best will in the world, are tomorrow's chip wrappers, influential only in the sense that they propel her ailing party forward or are smuggled into the governing agenda of other parties.<br />
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Harsh, perhaps. But there it is. But an election campaign suspends this obvious point. Instead, we have to pretend Ruth Davidson might, somehow, seize Bute House and find herself in a position to enact her ideas. And trapped in this parallel reality, we saw a different, faltering version of the Scottish Tory leader, contrasting rather sharply with the bluff, affable version which has dominated the headlines hitherto.<br />
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So what did Nicola ask? The Nats have already excerpted and punted <a href="https://twitter.com/theSNP/status/715131631896408065" target="_blank">the key exchange with Davidson</a>.<br />
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<i>"You've said you would tax graduates of university education and restore prescription charges. So will you tell us tonight exactly how much your graduate tax would be, and how much people will have to pay for their medicines, if you get your way?"</i></blockquote>
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This is an evil question on a couple of fronts. Firstly, contrast the simplicity of the SNP's position with the complexity of her opponent's. Sturgeon has asked about two separate schemes here, which have their universality in common. Every student, fees covered. Every prescription, paid for. If we dig into these policies, there are more challenging trade offs and implications. But if we remain on a superficial level? It is an easy sell. <br />
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Inevitably, Ruth Davidson's position on these questions will be more complicated, and accordingly, harder to explain. She will want to argue that the absence of tuition fees and prescriptions doesn't represent <a href="http://www.heraldscotland.com/news/14390483.Ruth_Davidson_reveals_plans_to_charge___6_000__backdoor_tuition_fees__for_four_year_degrees/?ref=twtrec" target="_blank">the best and fairest distribution</a> of limited resources, which should be targeted and means tested, towards those with least, while those with greater disposable income make their contribution. She will want to argue this is fairer.<br />
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But even in summary, this is a complex message. And even worse, even if she manages to impart this message clearly, she hasn't begun to explain the detail of her own scheme, and the precise rules about the winners and losers it will create. These challenges would apply if Sturgeon had only asked about tuition fees or prescription charges. But by pressing Davidson for a detailed answer on both, with no time to develop her case and explain her thinking, Sturgeon laid down two bear traps for the Tory leader.<br />
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And entertainingly, Davidson blundered into both of them.<br />
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<i>"Well, first of all it is not a graduate tax. it is a contribution after you've graduated --"</i><i>"How much?"</i><i>" -- once you're earning money. We expect it to be - erm - within the region of [swithering gesture] just over - eh - just over £1,500 per year. So that's a lot less than England."</i></blockquote>
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And on prescriptions, again harried for precise numbers, a now rattled and embattled Davidson said:<br />
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<i>"We will raise it over the course of the parliament, up to about £8."</i></blockquote>
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"About", "in the region of" and "just over" are not phrases which instil much confidence. But let's not overemphasise that. Davidson was knocked off beam and struggled to think on her feet, as many folk would in parallel circumstances. That's what these debates are for: a chance to shine, and an opportunity to stumble.<br />
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But what struck me particularly about this exchange is how politically maladroit Davidson's response to Sturgeon's specific query really was. She offered a sketchy defence of both policies, and left the hard-sell bottom lines ringing in electors' ears. Inevitably, these <a href="http://www.heraldscotland.com/news/14390483.Ruth_Davidson_reveals_plans_to_charge___6_000__backdoor_tuition_fees__for_four_year_degrees/?ref=twtrec" target="_blank">bottom lines were picked up</a> in the media this morning, without much explanation of why Davidson is pursuing these goals. This is not, I fancy, how she envisaged selling her tricky education and health policies in this election.<br />
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Sturgeon's question tempted Davidson into anticipating her manifesto in a way that was both fuzzy on detail, and nevertheless, simple and clear enough to be damaging. She might have responded to Sturgeon's question evasively, and answered the question in terms of general principles while skirting the detail. In the moment, this would have had some costs. <a href="http://lallandspeatworrier.blogspot.co.uk/2016/03/she-wore-blue-collar.html" target="_blank">Imagine </a>Davidson had said the following instead:<br />
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<i>"We'll be publishing our detailed plans shortly in our manifesto. I won't anticipate that detail here tonight. But what I can tell you, Nicola, is that any Scottish Government I lead will be focused on the interests of the worst off in society. I'll prioritise investing in bright young Scots with potential, not in subsidising rich Scots who can already afford it to send their kids to university. I'll protect the funds available for cancer victims and those suffering from long term conditions -- not subsidising the viagra of merchant bankers from Edinburgh or featherbedded NHS managers from Glasgow. Why won't you?" </i></blockquote>
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Sturgeon's response to this would have been predictable -- "why won't you be straight with us now? Give me numbers!" Davidson might have suffered a boo or two for such evasions -- but she could have turned the the rhetorical tables on the First Minister and prevented her policies on these two highly visible topics from being presented, from the outset, in a muddled and easily caricatured way. Once her plans had been produced, in a day or two, everyone would have forgotten her early diffidence and evasion in the debate.<br />
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But Davidson didn't make that calculation. Instead she blundered in with rough and implausible sounding numbers, and neglected the more important bit -- foregrounding and explaining why she believes these policies are better for Scotland. Feart of a few noises off in the debating hall, Davidson has allowed the political initiative to slip from her, handing her opponents a loudhailer with which to characterise - and crucify - her education and health policies.<br />
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Davidson had her moments elsewhere in the debate. Asking Kezia Dugdale if she’d stand “shoulder to shoulder” with her again in the event of a second referendum was extremely funny. But overall? This was a sucker punch from the First Minister, and from the young and untested Tory leader, a damaging rookie error.</div>
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<br />Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.com29tag:blogger.com,1999:blog-1638916042737526171.post-48544755974871477152016-03-28T17:09:00.004+01:002016-03-28T18:43:13.658+01:00Just As Planned<div class="separator" style="clear: both; text-align: center;">
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I'm fond of John Dryden's line, that "even victors are by victories undone." It contains a germ of hope for those who find themselves defeated, and it cautions those who appear to have carried away the prizes that a scorpion may lurk somewhere, undetected, in the silverware. Life, and politics, rarely work out <a href="https://1d4chan.org/wiki/Just_As_Planned" target="_blank">just as planned</a>. </div>
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Our recent experience throws up too many examples of the best laid plans going agley fully to relate, but you can detect a few major threads in recent political surprises and disappointments. Measures adopted in the hope of weakening your opponents end up perversely strengthening them in unanticipated ways. You sometimes find short term measures which boost your fortunes lay down the railway tracks which ultimately engulf you in calamity. A swing which brings your opponent onto the punch might give you a welcome opportunity to draw some blood - but it isn't worth it, if the satisfaction of inflicting a little injury leaves you vulnerable to a knock-out blow in response. The art of politics can be deuced tricky. There are some black and white days in politics, some palpable setbacks and some undeniable triumphs. But as Dryden saw, all too often, our victories and defeats are two-edged. Most swords are. </div>
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I approach the <a href="http://www.legislation.gov.uk/ukpga/2016/11/pdfs/ukpga_20160011_en.pdf" target="_blank">Scotland Act 2016</a>, and the Holyrood election debate which it has prompted, with this kind of attitude. There is an intelligent debate to be had about the limits of the current devolution settlement, and the economic wisdom of a new model Scottish Parliament, whose tax analysis and decision-making is focused disproportionately on income. Economics is not my forte, and I'm not your man for that discussion. But let's look at the politics of this. </div>
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Although Holyrood has, for some time, enjoyed a little theoretical wiggle room on taxation, since the SNP's abortive "penny for Scotland" <a href="http://news.bbc.co.uk/1/hi/scotland/2256863.stm" target="_blank">policy</a> in the early days of the parliament, Holyrood's tax raising powers have been posted missing in our election campaigns. Decisions on spending have predominated. Already, as the new Scotland Act powers march slowly towards us, <a href="http://lallandspeatworrier.blogspot.co.uk/2016/03/for-snp-taxing-problems-lie-ahead.html" target="_blank">serious questions of income taxation and welfare</a> are colouring and directing the 2016 race. Bracket the economic question of the wisdom or unwisdom of devolving income tax in this way, what are the political consequences of this shift?</div>
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One analysis would see this as a cunning Unionist trap, designed to expose the SNP government to the kind of scrutiny it has allegedly long avoided. The argument goes something like this. Look at those cunning Nationalists, claiming credit for their spending decisions, but avoiding responsibility for hiking income taxes to pay for them. They claim credit when devolved Scottish services prosper, and blame Westminster when cuts are imposed.<br />
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Now, the new powers ensure Scottish ministers will take their share of potentially unpopular decision-making, which creates obvious winners and losers. Their hands are - finally - being dipped in the blood. Although income tax makes up a smaller percentage of the overall tax take than most folk probably assume, save for your council tax bill, your PAYE deductions are the most visible form of taxation going. </div>
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If Nicola Sturgeon hikes your rate, you'll know about it, and hold her government responsible for its choices. See how long your popularity survives in the rougher winds which will blow then. Devolution might also have opened a window on the right wing for Ruth Davidson to champion lower rates. In the event, she seems to have retreated entirely to an "I agree with George" position on the rights of disabled people and the <a href="http://lallandspeatworrier.blogspot.co.uk/2016/03/she-wore-blue-collar.html" target="_blank">rates and bands of Scottish income taxation</a>.</div>
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And - who knows? - this cynical argument may have something to it. Income tax devolution has already altered the political debate, and exposed the First Minister's government to some awkward choices. On one interpretation, the teeth of the trap are closing.</div>
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But for myself? I remember my Dryden, think like a calculating gradualist, and take a slightly different view. Might income tax devolution create headaches for devolved governments? No question. Might it expose the SNP to new and uncomfortable situations, inviting missteps, and making some parts of the population unhappy? For sure. But the creation of Revenue Scotland and a distinct agency to administer devolved benefits for the disabled are classically gradualist nationalist innovations. They help to bridge the chasm between the <i>status quo</i> and a future independence. They shorten the "leap in the dark" it might be seen as representing.</div>
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Many of the more critical, post indyref postmortems have focussed <a href="http://rattle.scot/" target="_blank">on questions of policy</a>. How does the slump in global oil price alter the economic strategy and thinking? Does the currency policy <a href="http://www.bbc.co.uk/news/uk-scotland-scotland-politics-35887257" target="_blank">need reappraising</a>, in the light of hard experience and defeat? What about <a href="https://twitter.com/NaeFear/status/705317563991986176" target="_blank">Europe</a>? This is all well and good, and important, but I was to make a dumber, perhaps more obvious, point. For independence supporters, contemplating the situation in which we find ourselves, wanting usefully to bide our time, bridging that chasm isn't just a question of institutions and policy -- it is also a question of political culture and political capital. </div>
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Yes, income and most welfare devolution will expose Nicola Sturgeon's government to sometimes harsh and unforgiving headwinds. But much more importantly, it will gradually acclimatise our political culture to talking about tax and spend decisions much more seriously, on a peculiarly Scottish economic scale. Comparisons with England and Wales are likely to continue. But given sufficient time to percolate and mature -- this has the potentially radically to revise the <i>status quo</i>, building greater fiscal capacity in our politicians, and among the wider public of electors. This may also build skepticism towards the Scottish Government from some quarters, but collectively, it has the capacity to build confidence too. And as a calculating, gradualist Nationalist, this seems to me a fine and useful thing.</div>
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One aspect of the devolution settlement which long concerned me was the limits it imposed on our politicians' policy visions and their industry. MSPs and ministers have an incentive to focus on questions within their competence, and to give only scanty and superficial thought to issues falling outside them. The SNP were, for the greater part of the last two decades, uniquely exposed to this tendency, as first-past-the-post Westminster elections ensured that only a very limited cohort of Nationalist politicians were in place in the palace, scrutinising and thinking about reserved matters day to day. </div>
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2015 represented a radical break with this modest representation. You can't expect six souls with limited support and funds at their command to engage in a comprehensive and thoroughgoing operation on critical reserved questions of taxation and welfare, foreign policy and defence. This observation is intended as no criticism of the folk composing the SNP's Westminster delegation in earlier years. There are only so many hours in a day, and only so many briefings a small cadre of advisers can assemble. </div>
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Being the minor opposition, grounds can always be found to oppose the government of the day. But this kind of deconstructive, oppositional mode of thinking about reserved matters is not conducive to state building and advancing a considered and positive programme of your own. If the extent of your public scrutiny of government policy is a single question at PMQs, you're not going to try to present your own comprehensive plan. You'll look for the more focused, stinging, laugh line. Meanwhile, in Holyrood, as an MSP, you have no real incentive either to pick up the slack, and ponder the detail of social security or tax policy. It is a reserved matter, and your party will never be in power in Whitehall. Why bother? </div>
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But this kind of dynamic should strike serious minded independence supporters as potentially pernicious. If the principal party of independence neglects to build its thinking beyond opposition to particular measures, and the formulation of superficial but superficially winning soundbites about Westminster perfidy, you're goosed. From this kind of material, winning campaigns for Scottish independence are not made. </div>
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But I'd argue these two recent developments offer a route out of these understandable historical <i>cul de sacs </i>and leave the SNP simultaneously more politically exposed, and ultimately strengthened. In contrast with the handful of representatives whose minds are set to the analysis of reserved matters, the SNP now benefits from a massive Westminster delegation whose resources it must deploy with cold-eyed intelligence. Some of the new parliamentarians are plodders. Others stars. But aided by its short money war-chest, the party's serried ranks of MPs, and the little elves and sprites which surround them, are gradually intensifying their understanding of reserved matters, and the depth and complexity of many of the issues involved. This is unprecedented.</div>
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But I wonder if the Scotland Act "trap" might not make its own significant contribution to sharpening Nationalist thinking, focussing minds, and forcing Scottish voters to think about tax and spend - and greater independence - in a more comprehensive and programmatic way. As you cackle as Nicola Sturgeon and her colleagues are put on the spot - think on that. And remember Dryden. And wonder if it is all, really, going just as planned.</div>
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Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.com12