Labour's Pushmi-Pullyu on an independence referendum...

So there we have it, the BBC poll of 1010 people found that 58% want a referendum on independence held in 2010. Where matters get interesting, however, is when one contrasts this with the Sunday Times YouGov poll, taken between the 12^th and 13^th of March this year, asking 1380 people two questions.

Firstly, YouGov posed the quibbling enquiry “Would you support or oppose the idea of holding a referendum on Scottish independence in principle”? 57% supported holding the aforementioned phantasmal, principled plebiscite, 29% would oppose even the figment of such a referendum, while 14% didn’t know what to think.

Following lukewarmly on the heels of this question, another. “In view of the economic recession, would you consider a referendum on Scottish independence being held next year appropriate, inappropriate, or dinnae ken?" The division here seemed to buoy the Liberal Democrat, Tory and Labour line, with only 32% approving, 54% regarding such exploration of public opinion as inappropriate, while the “don’t knows” were joined by another 1% of the opinion-giving total at 15%.

From the sweaty and lethargic doldrums of 32% in favour in March, a leap up to 58% is significant, assuming that Scotland is an echo room, and the affirmative view voiced in the poll would resonate. Particularly important, and cunningly, the BBC poll posed the question “flat” – should there be a referendum - but crucially anchored the answers in time to 2010, implicitly encompassing the present economic recession.

The Sunday Times poll was clearly worded to generate a negative response to the second question, or at least to suggest it, while the latter question lacked similar indicative overtones. Is that what made the difference, simply a pollsters’ hex, enchantment and confidence trick? Or can we draw more robust and politically significant conclusions?

Here are a few reasons why we might want to reply ‘maybe’. It is important to recognise that the Labour case against a referendum, couched in a discourse of economic difficulty, is profoundly Janus faced – or in the alternative – is a classic case of that political llama, Pushmi-Pullyu. The right head insists that the stormy heavens of the economy are fugged over with cloud, occasionally rent by flashes of lightning and the impoverishing rumbling of thunder. Bright skies and stars of progress are nowhere to be found. The Scottish Government should be splitting its sinews striving to play the cloud-propeller, or at least, is advised to pretend it is doing so. No time for such constitutional gibbering, the sombre Iain Gray would insist, look to your people’s jobs, their livelihoods, hardworking families et al.

All well and good.

Yet simultaneously, the left head of the llama wants to insist that progress is being made. Thanks to the Westminster Government, the economy has been re-fertilised, the clouds brought rain, and the rain brought forth growth, and lo unto the people of Britain was restored prosperity, and Gordon Brown saw it, and said it was good, and it was. Shine out fair sun, etcetera.

The left head pulls one way, the right another. The stronger the pull exerted by the economically happier left head, the weaker the case against the independence referendum. After the gut-splattered butcher’s shop atmosphere which prevailing during the banking crisis, an eerie and distracted calm seems to have prevailing in how politics is talked about. Being trapped in the sticky web of Westminster expenses, the broader and substantive issues about the economic position seem to have wriggled free, and made a break for it. For Labour in the Scottish Parliament, the rhetorical discomfort associated with such an absconder is, to my mind, obvious.

Juxtaposition of the day...

Tam Dalyell, Scotland on Sunday 28th June 2009

This goes to the heart of what I think about parliament. Its members are overwhelmingly, in my view, decent, hard-working men and women. They were ridiculously and cruelly lampooned by sections of the Scottish press – though not by Scotland on Sunday.

Gerald Warner, Scotland on Sunday 28th June 2009

Sorry, Alex, most of us have faster mental reflexes than that.

HIGH pretensions in low places: the pygmy politicos in the Wee Scotch Senate surpassed themselves last week by passing the Climate Change (Scotland) Bill, their most ambitious excursion yet into self-parody. As legislation goes, we shall not look up – unless the Loch Ness Monster (Protected Species) Bill is in the pipeline.

This was Holyrood at its best: sanctimonious, dictatorial, self-regarding and totally divorced from reality. Stewart Stevenson, the Minister for Climate Change and Candle-Powered Kettles, told the chamber: "Scotland can be proud of this bill, the most ambitious piece of climate change legislation anywhere in the world." One wonders why the rest of the world has passed on this.

Hyperbole became so competitive as to threaten the ozone layer. "World-leading" was a favourite epithet; another refrain ran, "All eyes are on Scotland". When it comes to leading the world in surfing a wave of hysteria, Scotland has previous, for example the witchcraft trials under James VI. Today's condemned necromancers are offenders with inadequately lagged attics, overfilled kettles and lightbulbs strong enough to read by. Their days are numbered.

For it was not to be supposed the Wee Scotch Senate would pass legislation that did not contain severe penalties for heretics and dissenters. Energy criminals can expect the midnight knock. True, the bill only prescribes fines; but be sure more robust penalties will follow. It is for banning and punishing that MSPs live and breathe.

When you are an inarticulate numpty, unemployable in any commercial capacity, and you find yourself translated to the adobe slum at the bottom of the Royal Mile, glued to the public teat for £100k a year and exercising power without responsibility – bring it on, is your natural reaction to the prospect of invading people's homes and inflicting penalties on your fellow citizens. What is power for, if not to abuse?

During its inglorious first decade, which it is currently celebrating amid the passionate indifference of the nation, the Wee Scotch Senate has gradually achieved something fundamentally inimical to democracy: parliamentary unanimity. Now we see the fruition of the aspiration symbolised by the "non-confrontational" configuration of the chamber. The last potential opposition, the Vichy Tories, currently selling out the Union by supporting the Calman Commission, have traitorously joined the consensus.

"This is indeed a great day," drivelled Alex Johnstone, Conservative MSP, in the concluding debate, adding without conscious irony: "The nature of the bill will probably not dawn on us fully for many years." Sorry, Alex, but most of us have faster mental reflexes than that and have already apprehended that the best contribution this bill can make to conservation is by hanging on a nail in the smallest room in the house.

There is probably no other assembly in the world where a contentious topic such as "man-made" climate change would not provoke debate. MSPs, however, have the advantage of being untrammelled by any knowledge or understanding, they bring virgin ignorance to every topic and are guided by whatever the prevailing politically correct consensus may be. Without dissent there is no democracy. Who spoke for the large numbers of people in Scotland who, increasingly supported by emerging scientific evidence, recognise anthropogenic climate change for the scam it is?

Al Gore's convenient untruths exposed, the discrediting of the "hockey stick" model, the cooling since 2000, the resilient polar ice-caps, the fanatics' reliance on computer models programmed with code to produce the desired result, the historic examples of much wider temperature fluctuation than we are experiencing, the sea levels that stubbornly refuse to rise, the unscientific demonising of carbon dioxide, the patronage practised by the IPCC, the growing revolt of scientists against what is actually a political programme to increase United Nations and state power – all of this passes MSPs by.

We are being subjected to a Grande Peur reminiscent of apocalyptic stampedes of flagellants in the Middle Ages. The damage that will be done to developing countries is appalling. Nearer home, last week's fatuous commitment to reduce "greenhouse gas" emissions by 42 per cent by 2020 might better have been titled the Scottish Economy (Annihilation) Bill.

Its punitive powers will create a regulatory gradient between Scotland and England – as Calman would create a tax gradient – repelling investors. There is a cultural void in the landscape too, where 129 Scottish villages are missing their idiots.

'Indygalling' paradigm shift!

It would seem that I coined too soon. The Herald is reporting this morning (at least constructively) that I misread the political runes and Grant Thoms will not be standing in any by-election in Glasgow North East, as was mooted. Interestingly, however, the paper alludes to the problem of “indygalling” (though tragically, not joining me in my mission to popularise the notion):

To indygal (v.) A state experienced in the early stages of a blogger turned politician’s life when the media discovers their candid reflections on individuals or sensitive subjects on the internet, and immediately seeks to embarrass the fresh-faced politico with lurid incidences and choice examples drawn from their free flowing prose. Frequently a matter for repentance.

After all, how many politicians suddenly appear in parliament without conducting a campaign or submitting themselves to some sort of election, during which the persistent bloghounds of the press would root about in the candidates electronic rubbish?

Quoth the Herald,

“Thoms was known to have been worried that his "Tartan Hero" blog, which often dealt in religious and gay rights issues, would return to haunt him and had removed it from the internet - but traces had been retrieved by his opponents.”

That reference to so-called “gay rights” issues is a bit snide. Why should they “haunt him”, as if an occult, spectral set of opinions? Why would they, unless one was a ghastly homophobe and bigot? Why should the media concede, on any level, that any of this might be legitimate?

Indygalling, by an organic process and growth, has already ballooned in significance within a few days! How exciting. Thus, instead of the shame and sticky gloop mudpat discovery of a blog post election, making Indygal herself a paradigm case, Thoms’ alleged discomfort is probably now more paradigmatical. In the Kuhnian sense, we've already enjoyed our first paradigm shift. Indygalling is thus, the property of Indygal no more. Grant's face is the fresher. I should stress, however, that the man himself denies that he is eschewing election due to any indygalling threat or expectation, but instead because he enjoys being on Glasgow City Council:

“It is a role I love. I feel I have work still to do in that role and therefore want to continue with it." Being able to make a difference to constituents at a very local level is a rare privilege and the issues the council deals with are of the utmost importance to the people I represent. I also believe that the SNP has a great chance of taking the administration at the next council election and I want to play a part in that. I will give the successful SNP candidate my full backing and I look forward to working hard for another famous SNP by-election victory in Glasgow.”

If, however, Thoms was a’feart about the perils of being inygalled simply on the basis suggested by the Herald, that is shocking, contemptible. As Montague Burton put it, nothing less than a smear.

Wilson & Grahame: where do we find these people?

This is a post I’ve been meaning to write for a while. As is prominently displayed in my sidebar, I am a member of the Scottish National Party. That does not commit me to every morsel of comment every party member makes. I believe that Scotland would be better off as an independent country. Westminster constitutionalism and distant rule has allowed Scottish institutions to meander along, their corporate life undisturbed, their conceptual basis and normative framework unexamined. Scots have been permitted to be politically irresponsible for far too long. Devolution, for me, is thus a process in which the people can realise the extent of their own strength, but also their responsibility for what happens in Scotland.

As I have made plain in many posts here, I regard Holyrood as still in something of an adolescent phase. Responsibility and innovation both are still, largely, shirked. Progress is being made. The centralising instincts of Westminster persist, and the stabilising “federal moment” for the United Kingdom continues destructively to be postponed. The Union continues to look uncomfortable, the case for continuing unity increasingly fractured, uncertain, bloodless. Those of us disposed to waver, potentially purchasable by such a stable federal compromise, are unlikely to be moved to doubt our nationalisms by the present constitutional proposals.

The allure of the case for a fully independent Scotland thus persists. That said, however, as I hope will be apparent, I heartily loathe a segment of Scottish ‘nationalist’ opinion. The gurning ‘cybernat’ is a ludicrous caricature, only half conscious of the shallowness of (usually his) argument, he is blithely confident in his roughly-elucidated and conceptually measly contributions. Hearts may be in the right place. Brains are not always in evidence. I don’t mean to sound like a crippling snob. I certainly don’t believe that one’s political contributions must be woven in floral verbal garlands, nor needfully informed by reading dismal passages from John Rawls or Marx or whatever. Basic decency, honesty, forthrightness all are crucial civic virtues. Education does not good judgement make. Nevertheless, I think it is crucial that party members do not excuse rank and crapulous stupidity from our tribunes on a party political basis.

While Scottish Unionist is interminably dreary in dredging up the bastardised and quasi-rationalised offerings from the more flaming corner of nationalistic opinion from the web, on one level we must concede that he is correct to insist on the contemptibility of much of this. I have no more love for the snaggletoothed smiles of moron nationalists than I do for the sly invective of their cousins of the unionist-enthusiast persuasion. This is simply consistency and fairness.

That is why one ought to denounce the flatheaded Bill Wilson MSP’s bizarre submission that supermarkets should replace their turnips with ‘neeps’ or “tumshies”, potatoes with ‘tatties’, blackberries with ‘brambles’ and most obscurely, the plain old plume of spring onions with “syboes”. That last one is a mystery to me. If I consulted the label, I’d be mystified. I await with horror the enabling legislation he will table to ensure that such labelling becomes mandatory. Can one possibly, possibly perceive of a less worthy venture for an MSP’s time which might further underline his truly Herculean mediocrity? Scottish nationalists should repudiate this sort of gauche, meaningless nonsense and boot its author out of the pathetic frog-perspective offendedness which seems to be consuming too much of his time. While I accept that there are questions one can reasonably ask about unreasoning and snobbish hostility towards “Scots” vocabulary, rebuking critics are correct to suggest that the effort Wilson is expending here is the equivalent of piss up a wall.

As if this wasn’t sufficiently enthralling, we’ve been bounteously supplied with another shrill and counter-productive note of SNP invective from Christine Grahame MSP this week. Apparently the National Library of Scotland invited one of its staff members – and I would agree, this sounds equally moronic – to tuck away a few of his saltires, or his Lion Rampant, or his personalised tartan chair, lest they intimidate non-Scottish colleagues.

No doubt Grahame responded proportionately, do you suppose, cautious not to squander political capital in purposeless kilt-squeezing of the most objectionable and witless character, doomed only to alienate? Did she hell. The ex-teacher turned advocate turned politician ignited her inner Mel Gibson, thundering that this was a “completely unacceptable slur on Scotland's national flag”, continuing that:

“I would have thought that in the National Library of Scotland of all places they would have understood and appreciated the place the Saltire has in Scottish hearts as one of the oldest national symbols in existence. Instead it appears that senior management have embarked on a deliberate assault on the flag of Scotland, trying to purge it completely.”

The references to “assaulting”, “purging” and “slur” are patently idiotic, wildly hysterical. Moreover, with half of one's mind on the wider resonances of these phrases in our culture, particularly the “purging”, makes me profoundly uncomfortable. Too often, it is left to hostile commentators to sharply remonstrate with characters like Grahame and Wilson and tip scorn over the manufactured outrage and laughable projects which they expend their pointless energy on.

It is important, I think, for folk to recognise that there are equally dubious nationalists, seeing these schemes for what they are, and disassociating themselves from them. In this sense, I’m glad that this pair of MSPs have helpfully put their poor judgement at my service in such a timely manner, and that I can contribute to the rightful and excoriating ridicule heaped on this pair of dullards. And crucially, remain a nationalist still.

Scotland's "Speaker" problem...

The spinning Speaker churn in Westminster has got me thinking. Now we know that John Bercow has ultimately won out, and has earned the right to squeeze himself into black robe and pantaloons in public. One thing is obvious, however. Whether the Liberal Democrats had lost Alan Beith*, or the Tories George Young, or Labour Margaret Beckett*, none of the parties would have been particularly befuddled by the depletion. The divided parliamentary arithmetic will be sustained either way by the brute numbers generated by “first-past-the-post” voting system, any change being readily soaked up by the Government’s stonking majority.

The only real losers will be the voters unfortunate enough to have the duly elected speaker foisted on them, finding their right to a free and sensible and political parliamentary election in their constituency instantly and potentially lengthily curbed by convention. At least insofar as the scented fetishes of Westminster flummery succeed in warding off electioneering rivals and contrive to keep Mr Speaker contentedly ensconced in place.

Contrast the Scottish Parliament’s Presiding Officer. If you ask me, in terms of the “invented traditions” of Holyrood, and the ritual transplants which it has slyly snagged from the Westminster Parliamentary tradition, one of the most interesting developments has been the stature and role of the Presiding Officer. In contrast to the Speaker, the PO has a different range of set piece commitments, in particular, delivering a speech at the opening of Parliament and at other large scale ceremonial. Heretofore, we’ve had David Steel – to my mind, much overrated, too grovelling and grateful at being spattered by regal attention – and George Reid, whose splendid speech at the Opening of the Parliamentary building in 2004 did him much credit.

This aside, the question I want to ask is: how appropriate is the arrangement currently provided for in the Scotland Act 1998? Since Calman has put the Act on the reforming agenda, I think there may be principled reasons to rethink the approach.

But first, the arrangements at present. The Scotland Act provides that The Parliament shall at its first meeting following a general election, elect from its members a Presiding Officer and two deputies. The former Presiding Officer retains his or her office “until the conclusion of the next election for Presiding Officer”. Thus, there is a relatively rapid turn over of the Scots “Speakers”, with the real possibility of discontented punters booting the character out if he or she is a constituency member. Holyrood’s standing orders provide that the election of the PO by Members shall be by secret ballot. Succeeding is relatively simple. Where there are two candidates in a round of voting, a simple majority suffices. Where there are more than two, “the number of votes for one candidate exceeds the total number of votes for all the other candidates, that candidate shall be elected”. If this doesn’t happen, and one candidate does not produce such a majority, the candidate with the smallest number is eliminated, and another round of voting ensues.

All of which seems broadly sane. My question returns us to my theme at the beginning: the wider numerical repercussions of a member being elected Presiding Officer. If I may gently nudge your minds back to May 2007, the whole situation seemed jammed, precisely because of Holyrood’s proportionality. Due to the SNP’s narrowest of narrow margins lead on Labour, and their expectation of forming the new government, there was never any question that one of their new Members would thrust themselves into the PO’s chair. For similar reasons, and with an eye to the numbers, Labour weren’t keen. The Greens reasonably wanted to keep their brace of surviving members politically engaged, influencing policies. After much wrangling, and one suspects, a bit of arm-bending, the current Presiding Officer Alex Fergusson was induced to stand. To the surprise of many, Margo MacDonald sprang from the bushes at the last minute, but the ex-President of the Blackface Sheep Breeders' Association triumphed over the Lothians trumpet, 108 votes to 20.

Interestingly, Fergusson didn’t have to feign unwillingness as he mounted the PO’s dais, saying “I will, like my predecessors, reluctantly suspend my party allegiance for as long as I serve in this office.” All of which is most picturesque, showing our advanced Scottish democracy at its most warm and fluffy.

The problem? Arguably, electing a presiding officer and forcing them to shed their political scales in this fashion screws up the overriding aim of the Parliament to be proportional. Why go to all the trouble of feeding all of our votes into D’Hondt’s magic bingo machine, only to stir the fly in with the ointment, and disproportionately deny one party its full politically engaged whack of members? There is certainly a bit of internal tension here.

Precisely because of the keen pressures generated by a system aiming for finely balanced political representativeness, nominating the PO becomes an intensely political calculation. The unrepresentativeness of Westminster makes achieving impartiality relatively straightforward. As 2007 almost showed, where a result is close in a proportional system, finding the willing soul content to sacrifice their political say can be almost impossible, leading to needless brinksmanship. I imagine both the Nationalists and Labour tribunes breathed a satisfied wheeze of relief once Fergusson submitted to the collective goadings of the chamber and took up the gavel.

Is this wise? Could it be improved in any case? Could a Presiding Officer be directly elected by a whole country plebiscite concurrent with four-year general elections? Would we want this sort of approach anyway? While the idea of the Presiding Officer as representative and servant of the Parliament is certainly much less prevalent in Holyrood than its Wesminster equivalent, some might still prefer candidates to emerge “from the parliament”. Even if this is not the case, the current system clearly infringes the aim of proportionality. A separate election might avoid this problem. Alternatively, a Presiding Officer might be appointed by rather than from parliament. Finally, while the present arrangement may pose conceptual problems from a perspective of proportion, perhaps we are willing to concede to this, given the perceived ancillary benefits.

Do share any thoughts you may have. I’d be curious.

*As this is published, both of these characters have fallen on their black rods, flung in their order papers, and given up their bid to wear the black tights. I've now updated to reflect John Bercow's 322 to 271 victory over George Young.

Glasgow North East: Scuttlebut and Speculation

I want to propose a new term. It’s a useful little word, I think. And is of particular interest to we creaturely characters of the politicised and speculating “blogosphere”. Indeed, I firmly anticipate that its significance and incidence will only increase as time marches by. It is, in short, a good coining investment. But I’m getting ahead of myself in the red heat of the neological prospects. Here is the proposed addition to the lexicon:

To indygal (v.) A state experienced in the early stages of a blogger turned politician’s life when the media discovers their candid reflections on individuals or sensitive subjects on the internet, and immediately seeks to embarrass the fresh-faced politico with lurid incidences and choice examples drawn from their free flowing prose. Frequently a matter for repentance.

Why this sudden enthusiasm for adding a page to our already voluminous dictionary of the English tongue, you may ask. In short, because I think I’ve spotted an attempted incidence of pre-emptive indygal avoidance. And a rather interesting example it is too. As you’ll have read in the papers, it is expected that the by-election in Michael Martin’s Glasgow North East Westminster parliamentary seat will fall to be determined in September. Which monkey will have the red rosette slapped on it – and symmetrically – which will wear the SNP’s tacky canary yellow – has been the matter of some speculation. Martin’s son, Paul “Moomin” Martin MSP has apparently rebuffed suggestions that Springburn ought to observe election by primogeniture or any other sort of direct political entail from his father. Who the Labour party will produce remains a mystery. Perhaps my favourite phizog whittler, Margie Curran, might try her luck.

On the nationalist front, as I understand matters, Grant Thoms, Glasgow City Cooncillor and once-active, now lapsed blogger at Tartan Hero had been nominated to stand in the constituency at the next Wesminster General Election. That doesn’t necessarily mean that Mr Thoms will stand for the Nationalists in the early by-election. He remains a reasonable bet, but matters remain uncertain.

If, however, the fear of indygalling has any nip to it, recent developments might lead us to make the educated guess that Grant Thoms will be the Nationalists’ candidate. What developments, pray? Simply that his Tartan Hero blog is no longer simply languishing without the fresh fluids of new posts, but has now simply been deleted, presumably by its author, presumably because he wants to head off the threatening promise of being indygalled before the computer semi-literates in the press charge up their google search engines, and begin their vigorous “investigative journalism”.

A reasonable conjecture, do we think?

More English jury delusions...

Apologies for the yawning silence which has consumed this space recently. The Tyrant Work has been mercilessly been applying her goad, leaving me without enough puff for blogging. That said, however, the beneficent patron goddess of the Weekend has laid low the gurnsome monster of Labour, at least for the moment. Hot air thus replenished, to the mischief.

And let us begin with a series of headlines one might have encountered this week, revealing the press to be filled with ignorant fuckwits…

BBC: First Trial without jury approved

Independent: First trial to be heard without jury approved

Guardian: Court allows first juryless criminal trial

Telegraph: First ever trial without jury to be held because of alleged nobbling

Times: First criminal trial without a jury for 400 years

Quoth the BBC report, “Only in Northern Ireland, in the so-called Diplock Courts, could trials be held without a jury, until a recent change in the law in England and Wales.” Further, they scribble that “No-jury trials are a more regular feature of justice elsewhere in the UK. Diplock courts have been used in Northern Ireland since 1973 to combat jury intimidation by paramilitary groups. And some criminal cases in Scotland are heard by a sheriff in the Sheriff Court or by a bench of one or more lay justices in the District Court."

What, what? Shocking headline news story! First non-jury trial ever, horror, awe, Magna Carta! The lamp that shows there freedom lives sputtering! Erosion of “Our” age old liberties!

But… er … its total fiction.

Instead of covering the actually interesting part of this story – that it is the first case in the Crown Court where there will be trial by judge alone under the Criminal Justice Act of 2003, the English press has indulged itself in another one of its occasional bouts of frenetic, onion-squeezing delusion.

Take the dusty pages of the Criminal Statistics England and Wales 2007: Statistic Bulletin published by the Ministry of Justice. I imagine it might come as something of a surprise to the dazed statisticians to realise that the number of juryless trials they were recording in 2007 apparently didn’t happen. Per this 2007 report, 1.78 million offenders were found guilty or cautioned in England and Wales that year. 2007 saw the “number of defendants due to appear for trial at the Crown Court rose in 2007 to 83,200 compared with 76,800 in 2006. Of these, the percentage that plead guilty at Crown Court is 68%. As the Bulletin notes, only “about 5% of all those proceeded against are dealt with at the Crown Court” (p 17). Here we have a few definitional anxieties around what is meant by “dealt with” and some complexities around how the Magistrates Courts' role in committing defendants for trial is recorded. The clear-eyed facts and pithy detail of these statistics are thus complex to tease out.

However, we can say this, absolutely. Magistrates Courts sit with no jury. Crown Courts do. However, almost 70% of those “dealt with” by the Crown Court will never see the twelve crania of a gathered jury, because they throw in the towel and admit their guilt. Thus, even if we take the 5% figure as a maximum of those potentially triable by jury – the actual number of contested trials resolved by juries will be much lower than that.

The media coverage might be harmless dreamland cuckoo-spotting, did it not instil wholly fictional images of the reality of criminal justice in England and Wales. Indeed, in the context of a 90% + figure already where criminal matters are resolved sans jury, the press look madly ill-informed, frothily idiotic. If we were to take them on their word, the whole edifice of English justice is already an inauthentic, Magna Carta repudiating project in tyranny. One might have thought that if one was so keen on juries, one would be more offended by the 1.73 million persons in 2007 who did not receive the benefit of their judgement, than shriek and howl about a solitary, exceptional case.

In the context of my previous analysis of the Scottish system here and here, and the associated statistical uncertainties, the BBC’s paltry, ill-informed suggestion that “some criminal cases in Scotland are heard by a sheriff in the Sheriff Court or by a bench of one or more lay justices in the District Court” is laughable. Take the 2006/07 figures. That “some” was made up 121,820 trials out of a 126,724 total, or 96% of the total. Presumably we're using the work "some" here in the sense that "some" people break wind during the course of their life, or that William Hague has lost "some" of his hair.

Up for slipshod examination of known facts, or the inflation and distortion of reality? Are you suffused with a breezy confidence when reporting issues you only dimly comprehend, matched with a sloppy lack of interest in finding out the truth by research?

Journalism may be the career for you ...

Calman's Sausage Factory Vol. 1

I recently read a book about the Philadelphia Convention of 1787 called “Plain, Honest Men: The Making of the American Constitution” by Professor Richard Beeman. Beeman outlines the wrangling narrative and muddled story of argument and agreement which underwrote the drafting of the Constitution of the United States of America.

Dominant themes are the conceptual muddle, the pressing force of individual and local interest, temperament – and simple unglazed uncertainty about what one should do, what one wanted, and what conscious measures one should adopt to achieve it. As I read of the Founding Fathers’ wrangles, petty squallings and interminable disputations, it reminded me of the epigram, popularly attributed to Otto von Bismarck “to retain respect for sausages and laws, one must not watch them in the making.” The case is doubly so with a constitution, and hence, America probably sleeps sounder imagining their founding documents came ‘fresh from the Gods’, composed by firm-fetlocked, Herculean souls. But what of our constitution, and the Calman Sausage Factory – will it bear examination?

As anyone who has but glanced over the Final Report, it’s a fine lumpy wedge of text. Clarity is rarely delivered in 300 pages, nor would it be served by me writing 600 pages of analysis in my elaborated superhot-aired fashion. Since the Calman Commission generated six areas of particular focus, it is probably best to take each one in turn, and it turn it over crisply. Some areas will be more commented on or disputed than others, part 1 simply being introductory, while the real coin-counting enterprise commences in Part 3. Better with these things - to my mind - to wield a rapier rather than a shovel.

For the “short version” of the whole kit and caboodle, consult my earlier post here. For the moment, I wanted to raise a couple of specific issues from Part 5, of the “Strengthening the Devolution Settlement” Report, which runs from pages 157 – 214 of the document. This section of the report was produced by a task force lead by Sir David Edward, a former judge on the European Union’s European Court of Justice, based in Luxembourg. Reference is made to the principles of devolution – concerned, for example, that particular functions would reasonably have to be reserved for the wider, “federal” government – while other decisions can more appropriately be made at a “local” level. What choice issues do they reveal?

“Scottish Government”

Interestingly, the Commission employ the – contested – name of the “Scottish Government” throughout the report. Per the Glossary, “Scottish Government the executive arm of devolved government in Scotland. Under section 44 of the Scotland Act 1998 its legal name is the Scottish Executive” (p. 243). Rummaging through the document, you’ll find the phrase “Scottish Executive” is used 17 times – many of them direct quotations from legislation – while the phrase “Scottish Government” appears a whopping 165 times. What to make of that?

Energy
During the early stages of the discussion surrounding the Commission, reference was made to the nuclear question, planning laws – and the SNP’s trenchant unwillingness to consent to the erection of even imaginary new nuclear power plants in Scotland. Threats about withdrawing those gadfly powers were mooted, although I remain unaware of anyone actually proposing to fling up a new Dounreay, Hunterston or Torness. The Commission recognise this in a coy, flirtatious section, reading:

5.101 In its approach to considering responsibility for energy policy, the Commission has been mindful of claims that the Scottish Government is prepared to use, or perceived to be prepared to use, devolved powers in order, it is said, to frustrate policy in a reserved area (in this instance planning powers and the elements of nuclear power in the UK Government’s energy strategy).

The argument for “clawing back” planning powers, and hence, neutering the SNP Government's attempts to foil imaginary nuclear plants was, however, summarily dismissed by the Commission in a section picturesquely entitled “Other”...

5.123 The Commission has taken evidence about the way in which planning powers (which are devolved) may come into conflict with powers exercised by the UK Government relating to areas that are reserved (for example the siting of nuclear power stations). The Commission recognises that the devolution settlement as it stands will always give rise to situations where the boundary between devolved and reserved powers gives rise to tension and urges that effective use is made of the mechanisms outlined in Part 4 to arrive at outcomes that are in the best interests of Scotland and of the United Kingdom as a whole.

5.124 The Commission does not consider that there is any case for reserving planning powers (My emphasis).

Considering that the “case” was made by Labour MPs and Ministers, the wording here could be seen as a bit of a spank. To quote the Labour MP of the Scotsman article above, “If they want more powers at Holyrood, then they're going to have to give some back”, it remains to be seen whether the absences in the report will prompt a bit of rebellion among the Labourite cohort at Westminster about the possibility of its implementation, unalloyed.

Justice & Home Affairs: The Lonely Airgun

Turning to part 5-H – glossing the intervening biosecurity, regulation of healthcare professionals and so on – and onto Justice and Home Affairs. After a hand wringing discussion of the perils of crossborder gunwielding, license, and so on – the Commission recommend in 5.13 that airguns should be devolved to the Scottish Parliament. To quote a black-hearted Unionist:

“Then there are the other powers that Calman reckons should be transferred from Westminster to Holyrood. Although the distinguished jurist who handled that part of the inquiry put up cogent arguments for transferring to Holyrood the control of air rifles, the running of elections, and the setting of drink-driving and speed limits, it seems to this observer that they might go north simply because that is what was asked for.”

And here is the point. I don’t particularly object to devolving airgun questions. But why are we doing it? What is the point of it? Certainly, David Edward or one of his scriveners makes the case, and outlines the problems of Giants Causeway style legal regulation in a state, where different areas are at different levels. But why, for example, are we focussing on airguns at all? Why not something else? What is the principled basis? To my mind, the more it looks like a sop, a purchasing off enterprise in thrall to present political discomfort – the more the “federal event” or “stabilising moment” is postponed.

If I was more Unionistic, achieving finality would be my primary goal. Unfortunately, however, the persistent constitutional dynamism of Britain – with its insistence on Parliamentary absolute sovereignty, unfettered by final texts and eschatological, constitutional documents – means that the door is never closed, but flaps, noisily slamming and bursting open again. There is no settled will, only a briefly resolved one, another moving picture.

Interestingly, the thinness of the report in this respect betokens something else - the wide breadth of powers which the Parliament already has over areas of Justice. While there are lacunae, including “the misuse of drugs”, the Scottish Parliament operates where the horizon of possibility is far distant, and the constraints on the thinkable and the doable, at least in terms of broadly “justice” issues, are already extremely slack under the Scotland Act 1998. At least in this case - that extra powers can be conceptualised as a vain attempt to buy silence and contentment, Cochrane may be on the button.

The primary difference of course being that for him, this is a matter of regret...

Those Calman Commission headlines in full...

Morning has broken, and Calman has come. Being the helpful soul that I am, below is collated all of the recommendations as presented in the Executive Summary of the Commission's final report. The numbering was thematically organised, so one can find oneself leaping about a bit in terms of the recommendation one is at. I've made no effort to adjust this. Peruse at your leisure...

RECOMMENDATION 2.1: The Scottish Parliament and UK Parliament should confirm that each agrees to the elements of the common social rights that make up the social Union and also the responsibilities that go with them.

RECOMMENDATION 3.1: Part of the Budget of the Scottish Parliament should now be found from devolved taxation under its control rather than from grant from the UK Parliament. The main means of achieving this should be by the UK and Scottish Parliaments sharing the yield of income tax.

a. Therefore the Scottish Variable Rate of income tax should be replaced by a new Scottish rate of income tax, collected by HMRC, which should apply to the basic and higher rates of income tax.

b. To make this possible, the basic and higher rates of income tax levied by the UK Government in Scotland should be reduced by 10 pence in the pound and the block grant from the UK to the Scottish Parliament should be reduced accordingly.

c. Income tax on savings and distributions should not be devolved to the Scottish Parliament, but half of the yield should be assigned to the Scottish Parliament’s Budget, with a corresponding reduction in the block grant.

d. The structure of the income tax system, including the bands, allowances and thresholds should remain entirely the responsibility of the UK Parliament. RECOMMENDATION 3.2: Stamp Duty Land Tax, Aggregates Levy, Landfill Tax and Air Passenger Duty should be devolved to the Scottish Parliament, again with a corresponding reduction in the block grant.

RECOMMENDATION 3.2: Stamp Duty Land Tax, Aggregates Levy, Landfill Tax and Air Passenger Duty should be devolved to the Scottish Parliament, again with a corresponding reduction in the block grant.

RECOMMENDATION 3.3: The Scottish Parliament should be given a power to legislate with the agreement of the UK Parliament to introduce specified new taxes that apply across Scotland. The new procedure we are recommending in Part 4 of our Report for the Scottish Parliament to legislate on reserved issues with the agreement of the UK Parliament could be used for this.

RECOMMENDATION 3.4: The block grant, as the means of financing most associated with equity, should continue to make up the remainder of the Scottish Parliament’s Budget but it should be justified by need. Until such times as a proper assessment of relative spending need across the UK is carried out, the Barnett formula, should continue to be used as the basis for calculating the proportionately reduced block grant.

RECOMMENDATION 3.5: This system will require a strengthening of the inter-governmental arrangements to deal with finance.

a. The present Finance Minsters’ Quadrilateral Meeting should become a Joint Ministerial Committee on Finance (JMC(F)), and should meet regularly on a transparent basis to discuss not just spending but taxation and macroeconomic policy issues.

b. HMRC should advise Scottish Ministers in relation to those devolved taxes it is tasked with collecting and their responsibilities in relation to income tax and should account to them for the operation of these Scottish taxes. Scottish Ministers should be consulted on the appointment of the Commissioners of HMRC.

c. All the relevant spending or grant calculations done by HMRC and HM Treasury should be audited by National Audit Office (NAO) which should publish an annual report on the operation of the funding arrangements, including reporting to the new JMC(F) and to the Scottish Parliament.

RECOMMENDATION 3.6: These changes should be introduced in a phased way, step by step, to manage the risks of instability in public finances and of windfall gains or adverse shocks to the Scottish Budget.

RECOMMENDATION 3.7: The Scottish Ministers should be given additional borrowing powers.

a. The existing power for Scottish Ministers to borrow for short term purposes should be used to manage cash flow when devolved taxes are used. Consideration should be given to using the power in the Scotland Act to increase the limit on it if need be.

b. Scottish Ministers should be given an additional power to borrow to increase capital investment in any one year. There should be an overall limit to such borrowing, similar to the Prudential regime for local authorities. The amount allowed should take account of capacity to repay debt based on future tax and other receipts. Borrowing should be from the National Loans Fund or Public Works Loans Board.

RECOMMENDATION 4.1: In all circumstances there should be mutual respect between the Parliaments and the Governments, and this should be the guiding principle in their relations.

RECOMMENDATION 4.2: As a demonstration of respect for the legislative competence of the Scottish Parliament, the UK Parliament should strengthen the Sewel Convention by entrenching it in the standing orders of each House.

RECOMMENDATION 4.3: The UK Parliament and Scottish Parliament should have mechanisms to communicate with each other:

a. There should be detailed communication about legislative consent motions (LCMs), and in particular if a Bill subject to an LCM is amended such that it is outside the scope of the LCM.

b. A mechanism should exist for each Parliament to submit views to the other, perhaps by passing a motion where appropriate.

RECOMMENDATION 4.4: The UK Parliament should end its self-denying ordinance of not debating devolved matters as they affect Scotland, and the House of Commons should establish a regular “state of Scotland” debate.

RECOMMENDATION 4.5: A standing joint liaison committee of the UK Parliament and Scottish Parliament should be established to oversee relations and to consider the establishment of subject specific ad hoc joint committees.

RECOMMENDATION 4.6: Committees of the UK and Scottish Parliaments should be able to work together and any barriers to this should be removed.

a. Any barriers to the invitation of members of committees of one Parliament joining a meeting of a committee of the other Parliament in a non-voting capacity in specified circumstances should be removed.

b. Any barriers to committees in either Parliament being able to share information, or hold joint evidence sessions, on areas of mutual interest, should be removed.

c. Mechanisms should be developed for committees of each Parliament to share between them evidence submitted to related inquiries.

RECOMMENDATION 4.7: To champion and recognise the importance of interaction between the Parliaments and Governments:

a. UK and Scottish Government Ministers should commit to respond positively to requests to appear before committees of the others’ Parliament.

b. The UK Government Cabinet Minister with responsibility for Scotland (currently the Secretary of State for Scotland) should be invited to appear annually before a Scottish Parliament committee comprised of all committee conveners, and the First Minister should be invited to appear annually before the House of Commons Scottish Affairs Committee.

RECOMMENDATION 4.8: Shortly after the Queen’s Speech the Secretary of State for Scotland (or appropriate UK Government Cabinet Minister), should be invited to appear before the Scottish Parliament to discuss the legislative programme and respond to questions in a subsequent debate. Similarly, after the Scottish Government’s legislative programme is announced the First Minister should be invited to appear before the Scottish Affairs Committee to outline how Scottish Government legislation interacts with reserved matters.

RECOMMENDATION 4.9: Where legislation interacts with both reserved and devolved matters there should be continued cooperation:

a. For any UK Parliament Bill which engages the Sewel Convention on a matter of substance, consideration should be given to including one or more Scottish MPs on the Public Bill Committee, who should then be invited, as appropriate, to meet the Scottish Parliament committee scrutinising the legislative consent memorandum.

b. A Scottish Minister should as appropriate be asked to give evidence to the UK Parliament committee examining Orders made under the Scotland Act.

RECOMMENDATION 4.10: Either the Scottish Parliament or either House of the UK Parliament should be able, when it has considered an issue where its responsibilities interact with the other Parliament’s, to pass a motion seeking a response from the UK or Scottish Government. The relevant Government in each case should then be expected to respond as it would to a committee of its own Parliament.

RECOMMENDATION 4.11: There should be a greater degree of practical recognition between the Parliaments, acknowledging that it is a proper function of members of either Parliament to visit and attend meetings of relevance at the other; and their administrative arrangements should reflect this.

RECOMMENDATION 4.12: The Joint Ministerial Committee (JMC) machinery should be enhanced in the following ways:

a. The primary focus should be on championing and ensuring close working and cooperation rather than dispute resolution (though it will be a forum to consider the latter as well).

b. There should be an expanded range of areas for discussion to provide greater opportunities for cooperation and the development of joint interests.

c. There should be scope to allow issues to be discussed at the appropriate level including the resolution of areas of disagreement at the lowest possible level.

RECOMMENDATION 4.13: The JMC should remain the top level, and meet in plenary at least annually, but most importantly to a longstanding timetable. In addition:

a. JMC(D) and JMC(E) should continue in much the same form, but with more regular meetings and to a longstanding timetable. There should be an additional JMC(Finance) which subsumes the role of the Finance Quadrilateral.

b. Sitting below the JMC(D), JMC(E) and JMC(F) meetings should be a senior officials level meeting, JMC(O).

RECOMMENDATION 4.14: Where inter-governmental ministerial meetings are held to discuss the overall UK position in relation to devolved policy areas, the relevant Secretary of State should generally chair these meetings on behalf of the overall UK interest, with another relevant UK Minister representing the policy interests of the UK Government in relation to those parts of the UK where the policy is not devolved.

RECOMMENDATION 4.15: A new legislative procedure should be established to allow the Scottish Parliament to seek the consent of the UK Parliament to legislate in reserved areas where there is an interaction with the exercise of devolved powers.

RECOMMENDATION 4.16: In the development of the UK Government policy position in relation to the EU:

a. Early and proactive engagement by the relevant UK Government department with its Scottish Government counterpart should be a matter of course.

b. In addition Scottish Ministers and the relevant Scottish Parliament committee should become more proactive in identifying EU issues of interest to Scotland at an early stage, and taking the initiative accordingly.

c. The JMC(E) should continue to be used to determine the UK Government position on EU matters.

RECOMMENDATION 4.17: To ensure Scottish Ministers are visibly engaged with EU business affecting their interests:

a. When a request is received there should be a presumption that Scottish Ministers are accepted as part of the UK delegation where EU matters which cover devolved areas are for discussion;

b. When Scottish Ministers request to speak in support of the agreed UK Government line there should be a presumption that this is granted wherever practicable.

RECOMMENDATION 4.18: Closer involvement between Scottish MEPs and the Scottish Parliament is needed, and Scottish MEPs should be invited to attend, and should attend, the Scottish Parliament European and External Relations Committee regularly on a non-voting basis. The Committee should schedule its meetings to facilitate their regular attendance.

RECOMMENDATION 4.19: The JMC process should be subject to greater Parliamentary scrutiny, and have greater public transparency:

a. Agendas and timelines should be published in advance of each JMC, JMC(E), JMC(D) or JMC(F) meeting, and a communiqué from each should be issued.

b. After each full JMC meeting the First Minster should make a statement to the Scottish Parliament, and the Prime Minister, or UK Government Cabinet Minister with responsibility for Scotland, should make a statement to the UK Parliament.

c. An annual report of the JMC should be prepared, and laid by each Government before its Parliament, and it should be scrutinised by the new of the UK Parliament and the Scottish Parliament.

RECOMMENDATION 4.20: Scottish MPs should actively demonstrate appropriate oversight and stewardship of the constitution by way of regular scrutiny of the shape and operation of the devolution settlement.

RECOMMENDATION 4.21: The responsibility for appointing, or approving appointments of, senior civil servants to senior posts in the Scottish Government should be delegated by the Prime Minister to the Head of the Home Civil Service, acting on the advice of the UK Civil Service Commissioners.

RECOMMENDATION 4.22: The Commission has heard of a lack of understanding of devolution within some UK Government departments, and this should be addressed by reinvigorated training and awareness raising programmes.

RECOMMENDATION 4.23: The Civil Service Codes should be amended to recognise the importance of cooperation and mutual respect.

RECOMMENDATION 5.1: The powers of the Secretary of State for Scotland relating to the administration of elections to the Scottish Parliament should be devolved.

RECOMMENDATION 5.4: The responsibility for the appointment of the Scottish member of the BBC Trust should be exercised by Scottish Ministers, subject to the normal public appointments process.

RECOMMENDATION 5.10: Funding for policy relating to animal health should be devolved whilst responsibility for funding exotic disease outbreaks should be retained at a UK level.

RECOMMENDATION 5.13: The regulation of airguns should be devolved to the Scottish Parliament.

RECOMMENDATION 5.14: Responsibility for those aspects of the licensing and control of controlled substances that relate to their use in the treatment of addiction should be transferred to Scottish Ministers.

RECOMMENDATION 5.15: Regulation-making powers relating to drink-driving limits should be transferred to Scottish Ministers.

RECOMMENDATION 5.16: The power to determine the level of the national speed limit in Scotland should be devolved.

RECOMMENDATION 5.17: The effectiveness of the agreement [on marine planning] reached by the UK and Scottish Governments should be kept under review by the intergovernmental machinery, and nature conservation should be devolved to the Scottish Parliament at the earliest appropriate opportunity, taking into account the experience and evidence to be gained from the operation of the regime set out in the respective Marine Bills.

RECOMMENDATION 5.21: The Deprived Areas Fund should be devolved to the Scottish Parliament given the geographic nature of the help it is designed to provide and the fit with the Scottish Government’s wider responsibilities.

RECOMMENDATION 5.22: As part of its considerations as to future reform of the Social Fund, the UK Government should explore devolving the discretionary elements of the Fund to the Scottish Parliament.

RECOMMENDATION 5.2: There should be a single definition of each of the expressions “charity” and “charitable purpose(s)”, applicable for all purposes throughout the United Kingdom. This should be enacted by the UK Parliament with the consent of the Scottish Parliament.

RECOMMENDATION 5.3: A charity duly registered in one part of the United Kingdom should be able to conduct its charitable activities in another part of the UK without being required to register separately in the latter part and without being subject to the reporting and accounting requirements of the regulator in that part.

RECOMMENDATION 5.11: The Scottish Parliament should not have the power to legislate on food content and labelling in so far as that legislation would cause a breach of the single market in the UK by placing a burden on the manufacturing, distribution and supply of foodstuffs to consumers, and Schedule 5 to the Scotland Act should be amended accordingly.

RECOMMENDATION 5.12: The regulation of all health professions, not just those specified in the Scotland Act, should be reserved.

RECOMMENDATION 5.23: The UK Insolvency Service, with appropriate input from the relevant department(s) of the Scottish Government, should be made responsible for laying down the rules to be applied by insolvency practitioners on both sides of the border. This should be achieved by UK legislation.

RECOMMENDATION 5.5: In recognition of the close interaction of the Health and Safety Executive’s reserved functions with areas of devolved policy, a closer relationship between the HSE in Scotland and the Scottish Parliament should be developed.

RECOMMENDATION 5.6: Whilst retaining the current reservation of immigration, active consideration (supported by inter-governmental machinery) should be given to agreeing sustainable local variations to reflect the particular skills and demographic needs of Scotland.

RECOMMENDATION 5.7: In dealing with the children of asylum seekers, the relevant UK authorities must recognise the statutory responsibilities of Scottish authorities for the well-being of children in Scotland.

RECOMMENDATION 5.8: The Secretary of State for Scotland should, in consultation with Scottish Ministers, more actively exercise his powers of direction under the Crown Estate Act 1961 and, having consulted Scottish Ministers, should give consideration to whether such direction is required immediately.

RECOMMENDATION 5.9: The appointment of a Scottish Crown Estate Commissioner should be made following formal consultation with Scottish Ministers.

RECOMMENDATION 5.18: Research Councils UK should re-examine its approach to funding so that Scottish institutions [such as the Scottish Agricultural College] delivering a comparable function to institutions elsewhere in the UK have access to the same sources of research funding, with the aim of ensuring that the effective framework for research that has been established across the UK is not jeopardised.

RECOMMENDATION 5.19: There should be scope for Scottish Ministers, with the agreement of the Scottish Parliament, to propose changes to the Housing Benefit and Council Tax Benefit systems (as they apply in Scotland) when these are connected to devolved policy changes, and for the UK Government – if it agrees – to make those changes by suitable regulation.

RECOMMENDATION 5.20: A formal consultation role should be built into DWP’s commissioning process for those welfare to work programmes that are based in, or extend to, Scotland so that the views of the Scottish Government on particular skills or other needs that require to be addressed in Scotland are properly taken into account.

RECOMMENDATION 5.24: The interpretation provision in relation to “social security purpose” in the Scotland Act should be amended to make it clear that the reservation refers to social security purposes related to the type of provision provided by the UK Department for Work and Pensions.

RECOMMENDATION 6.1: In relation to the Parliament’s committee system:

a. The structure of dual-purpose committees established both to carry out investigative inquiries and to undertake the detailed scrutiny of legislation, should be maintained.

b. The level of turnover of committee memberships during a session should be minimised, in order to enable committee members to build expertise.

c. Committees should have the facility to establish subcommittees to address temporary problems of legislative overload, without this requiring the prior approval of the Parliament as a whole.

RECOMMENDATION 6.2: The current three-stage Bill process should be changed to a four-stage process, with Stage 3 becoming limited to a second main amending stage, taken in the Chamber, while the final debate on whether to pass the Bill would become Stage 4.

RECOMMENDATION 6.3: The Parliament should amend its rules so that any MSP has the right to propose, at the conclusions of the Stage 3 amendment proceedings, that parts of a Bill be referred back to committee for further Stage 2 consideration.

RECOMMENDATION 6.4: The Presiding Officer should be able to identify in advance of Stage 3 amendments that (in his view) raise substantial issues not considered at earlier stages. If, at the end of the amendment proceedings, any such amendment has been agreed to, relevant provisions of the Bill should be referred back to committee for further Stage 2 consideration unless the Parliament decides otherwise (on a motion that may be moved only by the member in charge of the Bill).

RECOMMENDATION 6.5: Section 31(1) of the Scotland Act should be amended to require any person introducing a Bill in the Parliament to make a statement that it is (in that person’s opinion) within the Parliament’s legislative competence.

RECOMMENDATION 6.6: The Explanatory Notes published with a Bill should give a general account of the main considerations that informed the statement on legislative competence under section 31(1).

RECOMMENDATION 6.7: Section 19(1) of the Scotland Act should be amended so as to loosen the requirement on the Parliament to appoint a Presiding Officer and deputies at the first meeting of a new session, and to enable additional deputies to be appointed if and when that becomes appropriate.

RECOMMENDATION 6.8: There should be a review of all other provisions in the Act that constrain the Parliament in terms of its procedures or working arrangements to ensure they are proportionate, appropriate and effective.