The SNP's clever, clever human rights gambit...

I missed out one superficially technical but politically interesting amendment in this morning's brief survey of the SNP's plans for the Scotland Bill.  Tabled in the names of Angus Robertson, Mike Weir, Stewart Hosie, Eilidh Whiteford, Joanna Cherry and Kirsten Oswald, amendment 67 proposes that:

“(1A) In paragraph 1 of Schedule 4 (protection of Scotland Act 1998 from modification), delete “(2)(f) the Human Rights Act 1998.”

Blank faces all round.  Let me fill in a bit of the background. Under the Scotland Act, Holyrood legislation must not "relate to reserved matters". These are set out in Schedule 5, and include foreign affairs and defence, and great swathes of taxation, social security policy - and so on. The other main way in which Westminster limits Holyrood's power is Schedule 4, which sets out specific pieces of legislation which the Scottish Parliament cannot modify, amend or repeal. This includes the free trade sections of the Act of Union, the core provisions of the European Communities Act -- and also the Human Rights Act 1998. 

As I have written here before, human rights fall in a funny place under the devolution settlement in Scotland.  Human rights are a devolved matter but Holyrood cannot touch the Human Rights Act. Your Convention rights are written into the Scotland Act. In making legislation, and taking decisions, the Scottish Parliament and Government must uphold your basic Convention rights. But the Human Rights Act extends much wider, to every public authority in the land. To every school, every hospital, every prison and every court.  So what is the SNP Westminster leadership up to here? Why seek to knock the Human Rights Act out of schedule 4?

Superficially, this amendment would give Holyrood the power to amend or repeal "Labour's hated Human Rights Act" -- an odd proposition from a party which has made a great hullabaloo about resisting the Tory plans for repeal.  But reading between the lines, I strongly suspect that this amendment is really about knocking down the UK government's last, best argument that it can repeal the HRA without Holyrood's consent. 

Another brief constitutional law 101. The UK parliament remains sovereign. It can, if it wishes, pass Acts related to devolved matters. But in order to respect the authority of the new parliament, the constitutional convention has developed that Westminster will not pass laws (a) relating to devolved matters or (b) amending the Scotland Act without Holyrood's consent. 

For example, the Lib-Lab coalition in Holyrood gave Westminster legislative consent to pass a pan-UK Civil Partnership Act in 2004, despite the fact that family law fell squarely within the Scottish Parliament's competencies. Consent was sought for the changes instituted by the 2012 Scotland Act. And consent was denied in 2011 for devolved aspects of the UK government's welfare reform agenda.  However, Westminster requires no consent when it legislates for reserved matters. Scottish Ministers may stamp their feet a much as they like -- but the Westminster majority rules. 

Which brings us back to Human Rights Act repeal. It is broadly accepted that introducing any British Bill of Rights would require Holyrood's consent. Its provisions would have a significant impact on devolved powers. But what about a straightforward repeal of the Human Rights Act? Would MSPs get a say or not? Is the Sewel convention engaged? The UK government has given no indication on its thinking on these questions in public. Like Iain Jamieson, I think there are already good reasons to argue that repeal would and should engage Sewel. But if I was Lord Chancellor Gove, looking for a way around the convention, my argument would run as follows -- 

Human rights may be a devolved  matter, but by dint of its inclusion as a protected enactment in Schedule 4 of the Scotland Act, the Human Rights Act is not. The Human Rights Act is reserved. Accordingly, Gove's argument would run, Holyrood's consent is not currently needed for the Tory majority to "axe the Act". Professor Mark Elliot of the University of Cambridge has also argued this case.  Expect other constitutional lawyers to do so too.  

In the light of that argument, think again about that tricksy SNP amendment number 67, and reason through its implications. If the Human Rights Act was deleted from Schedule 4 of the Scotland Act, the Act could no longer be said to be a reserved matter. If it could not longer be said to be a reserved matter, the Sewel convention would be engaged and Holyrood's consent would be required for any repeal. 

While at first glance, the amendment would empower the Scottish Parliament to eliminate human rights from the statute book, in practice, it would significantly strengthen the Parliament's hand in resisting the Tory human rights agenda. If this SNP proposal was enacted, it would knock out the Tory government's best and only argument that Human Rights Act repeal would not require Holyrood's consent. 

Clever, clever. 

Scofflaw, footpad, pirate, shady crook...

Scofflaw, footpad, pirate, shady crook. Thou shalt not vote, recalcitrant. Hie ye back to your cell of disenfranchisement, there to reflect upon the philosophy that the lawless cannot craft laws. Capitis deminutio maxima. Which this House hereby pronounces for doom. 

Tragically, it now seems unlikely that Her Majesty's government will adopt my wizard wheeze to form prisoner constituencies. For my part, I've little vinegar in me for the issue of prisoner enfranchisement. I find the "principled" argument that those who break laws forfeit their rights to participate in legislation to be pretentious and patently a backwards intellectualisation of a previously held position. Love and Garbage put it neatly in a comment on Better Nation. If law breaking is the justification for depriving individuals of their votes, what is the rationale for allowing late night urinaters, spanked by Justices of the Peace, to keep theirs? Although the example is trite, it at least serves to make one thing clear. The delineating concern here is not really one of law breaking at all. Nor am I particularly keen on accommodating folk to the general notion that if you repudiate the social contract, the social compact repudiates you. Others may share my rather shapeless discomfort with such stark exclusionary figurations. Equally, the idea that giving prisoners the vote will have some efficacy as a force for rehabilitation seems equally absurd. Isn't this unnecessarily high flown for what is fundamentally a quotidian question? My answer to that question, left to my own devices, would be to afford all prisoners the vote, enfranchised in a spirit of indifference. As for all of the outraged conscience paraded in Westminster yesterday: be still my throbbing colon. A quick squint through Hansard revealed that no SNP MP spoke in the debate but three of them (Stewart Hosie, Mike Weir and Eilidh Whiteford) supported David Davis' motion:

That this House notes the ruling of the European Court of Human Rights in Hirst v the United Kingdom in which it held that there had been no substantive debate by members of the legislature on the continued justification for maintaining a general restriction on the right of prisoners to vote; acknowledges the treaty obligations of the UK; is of the opinion that legislative decisions of this nature should be a matter for democratically-elected lawmakers; and supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand.

Asked about this last year, Alex Salmond was disappointingly incoherent:

FMQs 23rd of September, 2010

Alex Salmond: The Scottish Government does not agree that convicted prisoners should be entitled to vote while they are serving a prison sentence.

Stewart Maxwell: Like many in the Parliament, I am totally opposed to rapists, murderers and drug pushers getting the right to vote. They have given up their right to participate in decent society by their actions. It is a disgrace that forces outside Scotland are trying to force such a change upon us ...

Robert Brown: The First Minister is missing the point. The UK is signed up to the European convention on human rights, so it is under the obligation to follow the protocol that refers to free and fair elections. Is he not aware that the European Court of Human Rights has made a decision on the matter? Is he suggesting that, if Scotland were independent, it would opt out of the European convention on human rights? What is the Scottish Government's position on that?

Alex Salmond: A couple of things would improve if Scotland were an independent nation. First, we would have the same protection against compensation claims as any other country has at the moment, instead of theoretically being liable for 10 years of compensation claims—members will remember that in connection with another thorny issue. That would be a distinct improvement if Scotland were independent. Secondly, I know that the Liberals are understandably keen on the European Court of Human Rights and the European convention on human rights. However, I cannot believe that, back in 1997 when there was blanket signing up to the ECHR, those of us who argued very strongly that human rights should be observed across the European continent thought that one of the key issues would be to give convicted prisoners the right to vote. For most people, that does not seem to be what we would consider to be an important human right.

Not one of the Maximum Eck's better days, I'd submit. I assume his stumble-mumble point about 1997 in the last paragraph refers to the Human Rights Act, passed by the Westminster parliament in 1998, but it is difficult to tell. As he would assuredly discover if he looked into it, elections were put under the authority of the European Court of Human Rights by the third Article of the First Protocol to the European Convention on Human Rights and Fundamental Freedoms in 1963. It reads as follows, in pompous legal diplomatese:

"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature"

Politically, I can understand the Scottish Government's position. One might expect signs of sensitivity in the SNP about the soft-on-crime millstone which certain parties are keen to make a necklace gift for them. Moreover, it is a matter for the Westminster parliament, in which the party has only a tiny clutch of votes. Why fashion the projectiles of Labour boors for them? While I thoroughly denigrate Stewart Maxwell's ridiculous little Scotlander bilge, in fairness we should also add the idea that Salmond and Shoal may actually burn hostile to prisoner voting and the calculation I mention is purely a secondary consideration. My sense, however, is that this is a classic example of Eckly weakness when it comes to the future, with the patently implausible reassurance that in Salmond's independent Scotland, we'll discover a land where all contradictions are resolved and what is indissolubly complex shall become simple...

GE2010: BNP in Scotland

On election night, constituencies flicker on and off the screen. Fleeting and sylph-like, if they're more or less safe houses, the cavalcade and hurly-burly of announcement and speculation  marches hastily by them. Triumphant horns are briefly tooted and the result is quickly reduced to just one pip in an accumulating partisan pip-pile. On Friday, one tiny detail in the Banff and Buchan result snatched my attention for a moment - and I made a mental note to return to the point once the Unseelie Court of election coverage collapsed into an exhausted pile, its pixie energy all spent. Obviously, I was exceedingly pleased to see Dr Eilidh Whiteford returned for the SNP. However, my grin slipped as my eyes bounced down the results - to see the BNP received no less than 1,010 disgraceful votes in that part of the North East. Surprised at the level of support, I betook me to wondering how the party did across the rest of the country. Here is what I've found.

In the full national results I posted up yesterday, you can easily spot that they gained 8,910 votes nationally, representing 0.4% of the total and an increase on previous levels of support of 0.3%. This looks significantly less than our last electoral outing. In the European Elections, the BNP received 27,174 votes - 2.5% of the national total.  However, in the General Election this macro angle is rather misleading. The BNP only stood in 13 constituencies across the country. In this sense, their national result isn't based on standing nationally. Here is how the far-right fared. The manner in which I've broken down the results should be reasonably self-explanatory.

Constituency	Votes	% of constituency	+/- %	% of total BNP vote
Banff and Buchan	1,010	2.6	+2.6	11.3
Gordon	699	1.4	+1.4	7.8
Aberdeen North	635	1.7	+1.7	7.1
Aberdeen South	529	1.2	+1.2	5.9
Aberdeenshire West and Kincardine	513	1.1	+1.1	5.8
Glasgow Central	616	2.0	-0.4	6.9
Glasgow East	677	2.1	+2.1	7.6
Glasgow North East	798	2.7	-0.5	9.0
Glasgow North	296	1.0	+1.0	3.3
Glasgow North West	699	2.0	+2.0	7.8
Glasgow South West	841	2.6	+2.6	9.4
Glasgow South	637	1.6	+1.6	7.1
Livingston	960	2.0	+2.0	10.8
Total	8910	0.4	+0.3	100.00

If we focus on Glasgow's seven seats, they furnish 4564 votes of the BNP's total number - some 51% of their national total. Glasgow NE has the highest % of the constituency vote - however in terms of actual ballots cast, Banff and Buchan had the highest BNP turnout, 50 votes more than the second-highest, in Livingston. Interestingly as the +/- percentages make clear, most of these are seats which have not been previously contested by the BNP. However, in those seats which the BNP have previously contested - Glasgow North East and Glasgow Central - the BNP vote fell slightly. There are reasons to be happier than the slight reduction in Glasgow North East would suggest. The chart's +/- percentage figure is based on 2005 voting figures of 920 votes, not the 2009 by-election result that sent Labour's Willie Bain to Westminster. In 2009, the BNP took 1,013 votes in Glasgow North East on a much lower turnout that last Thursday. Seeing the vote drop significantly this time around is obviously welcome.

None of which quite explains to me why Banff and Buchan is the stand-out result. Presumably the party must have had some basis - some hunch - to justify standing on the shores of the North Sea. If I had to speculate, one answer might be found in the 2009 European election results. While we can't pin down the total for Banff and Buchan specifically, in the Aberdeenshire Council area of which it is a  constitutive part, the BNP took 1,167 votes in 2009. While 2.6% is admittedly a slim slice of the total - to receive 1010 votes is still vilely high. And all the more concerning, since there is no more a cardiac constituency for the SNP than Banff and Buchan. Some people are disposed to argue that we have a problem with racism in Scotland. That problem is not per se that a racialising analysis must be present in some quarters - that seems difficult to deny - but that societally, we will not, cannot face up to and concede its existence. We tell ourselves fond stories about being welcoming to immigrants and muse flatteringly on what a guid folk we are. Beneath this virtuous gloss, in the unspoken and unspeakable penumbra, lurks a reality in which discrimination and racist violence abounds. In a classic Marxist sense, our ideology of innocence masks our racist practice. On this account, the imperative felt by the clear-eyed Scottish critic, faced with this fond fiction of openness and anti-racism, is to rend and tear down our beguiling veils, dissipate our illusions and insist that Scotland knows and confesses its own corruption.

I'd reply, up to a point, Lord Copper. As I argued after the by-election result in Glasgow North East in 2009, these stories about Scottish authenticity serve more than one function. If taken as a representation of reality -  the denial of all Scots racism, whether historically or contemporarily, is patently absurd.  Just as it would be misguided rubbish to suggest the same saintliness about our attitude to women and  conduct towards those who don't cleave to the modalities of heterosexual love. However, as I've argued before, there is also an aspirational element to telling stories about Scottish openness which we ought not too hastily  squander. Concede, as we must concede, for the sake of honesty, that Scottishness can be no vaccine to racism, homophobia, vicious misogyny. Let's not turn our heads when we encounter these ugly, tragic sights.  Justice and compassion calls for sympathetic attention. So much, so easily admitted. However, it is certainly not obvious to me that in the final analysis of this recognition of fallibility, the best conclusion is to reject the political discourse which accounts for Scots authenticity in terms of openness, friendliness and crucially non-racism.  

Mythologies can be rejected, written off as unrepresentative bunkum, falsified by human wickedness. Crucially, they can also be lived up to. For reasons that cry out for closer examination, and a better explanation, the voters of Banff and Buchan aren't all living up to this better history.