15 June 2011

A political case for deferring the anti-sectarianism Bill...

According to the Minister for Community Safety, Roseanna Cunningham, we can expect the Scottish Government's anti-sectarianism Bill to be introduced to Holyrood tomorrow. Which means that, after some at-pace legal wrangling, the Presiding Officer has been willing to certify that the Bill falls within the parliament's legislative competence under the Scotland Act 1998, despite the potential devolution competence and European Convention compatibility hurdles identified in my post on the fortnight left to Holyrood, to debate and scrutinise this text, before the summer recess.

After a number of post-election blogposts on the law and policy issues raised by these proposals, my own views should be familiar. Depending on the precise wording of the Bill, I anticipate strong objections of principle. More generally, whatever the first draft of this law actually says, it is recklessness and folly to blunder ahead with a piece of unscrutinised legislation in the name of a concocted emergency, the consequences of which ministers themselves have only just begun to guess and which the wider community of the realm still has had no opportunity to read, never mind deliberate upon.  That would be true whatever the subject matter of the Bill.  Such concerns ought to be all the more pressing when we are talking about empowering state agencies, through a criminal statute, to take legal action against individual citizens which is likely to have a profound implications for their liberty. A decent sense of the value of reflection and the perils of haste is not, as verve-invoking ministers might suggest, a prescription for endless delay, nor high praise for parliamentary ponderousness. There are issues in law reform which, in my view, have been investigated and mooted well beyond needful and beneficial scrutiny. This is not one of them. To ordain that no substantial evidence be taken, no time be given to would-be evidence givers to collect their thoughts, no time for parliamentarians to learn what questions they ought to be asking, never mind getting around to asking them - is reckless administration, pure and simple. Reason enough, you might think, to defer consideration of this Bill until Holyrood re-congregates after its vacation.  However, this appeal alone seems to leave the Scottish Ministers unmoved. Salmond is famously keen on the Marquess of Montrose's gambler's adage...

"He either fears his fate too much
Or his deserts are small,
That puts it not unto the touch
To win or lose it all."

As far as this piece of legislation goes, he keeps to his genre, but comes over all Richard III...

"Slave, I have set my life upon a cast,
And I will stand the hazard of the die..."

Having built himself a political cell from his promised expedition and the hasty rhetoric of a sectarian emergency requiring immediate legislative relief, Salmond has gingerly turned the locks on himself and his unfortunate Justice Secretary. Since reason seems incapable of moving the First Minister to break out of these confines, I thought a different tack was indicated, something which Mr Salmond is likely better to appreciate: picklock politics.

Observers of the Holyrood scene will well-recognise the emergence of a particular strain of opposition rhetoric, replete with dark threats about the "elected dictatorship" of the SNP, and equally implausibly, the brutalising machinery of its "one party state".  For reasons of comity and managing the danger of triumphant Nationalist crowing over a crushed and addled opposition, the SNP has a clear interest in thinking about how it uses its majority in Holyrood, and how that majority might appear, both to the public and the rather more attentive press. The election of Tricia Marwick, some observers suggested, missed an opportunity for magnanimity, permitting an opposition member to snatch the office, rather than following the PM's motto from Yes Minister: "In defeat malice, in victory revenge". The party's dominance across the convenorships of the Holyrood committees, however justified this might be by the democratic support it achieved in May, presents similar issues. A gaggle of gormless stooges, without the independence of mind God gave a oyster, does not an impressive political outfit make. Today in Holyrood, Tory MSP and Justice Spokesperson, Margaret Mitchell, closed the justice debate with a rather o'er-sharp denunciation of ... um ... lots of stuff, including Salmond's recent intemperate remarks about Lord Hope (more on which later). Aidan Skinner wasn't entirely off-piste, when he tweeted "that was a brave phalanx of junior SNP MSPs throwing themselves on points of order to defend the Emperor."  

The issue for the SNP is twofold: firstly, how are they to sustain an idea of parliament holding a government to account (thereby generating some sense of consensual politics, stymieing wrongheaded allegations of elective dictatorship)? Secondly, how are SNP backbench MSPs to avoid being (and for the party, probably more pressingly, appearing to be) a supine, incurious and unassertive band, crammers and stuffers labouring only for the whips, unwilling to articulate any robust independence of mind or recognise government fallibility or folly? 

And how, for that matter, does this connect to sectarianism? Here's how. Firstly, parliament can probably be relied upon to put up some limp disagreement with the pace of these anti-sectarian innovations. From today's debate in Holyrood, we can anticipate that these protests will cross parties. Concern about the speediness of these reforms will thus be a proper, parliamentary affair. However, if ministers press ahead, anaemic opposition qualms about the rush seem unlikely to cause the Labour Party and others to actually oppose the Bill. However unfairly, that would leave them politically vulnerable to the allegation that they are lily-livered on sectarianism, the bigots' tribunes. Unfortunately, in the world of the politician, is seems far easier quietly to pass an illiberal statute than face a such a vacuous drubbing. These opposition qualms are therefore only likely to be useful if Ministers decide to incline their heads to parliament. Here's where the the SNP's supine backbench problem comes in. How are they to demonstrate that SNP representatives will robustly hold the government to account and critically, that ministers may, now and then, fold in the face of such criticisms? 

Alex Salmond's self-imposed haste to pass this Bill was folly. And yet, it seems to me that this conjunction of events can turn that folly into a political opportunity. Why not wait for the opposition to whip up a bit of hysteria about the risks associated with breakneck criminal legislation and rely on Christine Grahame, as Convenor of the Justice Committee, to make a maverick case for delay - and more in sorrow than in anger, after a show of resistance, choreograph a ministerial deferral of the issue until Holyrood reconvenes, allowing for discussion and examination? Be even more artificial. Encourage other SNP backbenchers to vent their cares and concerns about the passage of a scantily scrutinised Sectarian Bill. It would be a splendid opportunity to rebuke those who've been talking about dictatorships and domination.

In the process, the Government would achieve a number of things. It may be monstrously cynical, but you'd struggle to find a better issue to pick, as opposition representatives will doubtless be anxious not to appear to be caballing and frivolous about an issue of serious societal concern. You may get the odd stray quote about Salmond's misjudgement in terms of timing this reform - but he has misjudged it. In the end, you'll still likely pass an Act of some character, with some juicy criminal sections, affording ministers an opportunity to utter resounding denunciations about sectarian goons and ultimately prosecute a few under the new legislation.  On the other issues I mention, how otherwise is the SNP to emphasise its parliamentary credentials - and the hardiness of its own backbenchers?

It strikes me that if you have to change your mind in government, why not change your mind on an issue you actually got wrong, which is unlikely to do you any political damage in the longer term, which serves the difficult function of emphasising the independence of your own backbenchers and government submission to parliament - and for which the opposition will find it difficult seriously to criticise you? Such a conjunction of factors seems unlikely to recur any time soon. Against this proposal - and the political case for deferring the Bill - you might put up the argument that so radically to depart from your ordained schedule for the first major policy act of your re-elected administration is a sign of weakness or an admission of error. For my part, I find the reasoned case against speedily passing this legislation most compelling. The political case, by contrast, is horribly cynical.  For those deaf to reason, however, think on this. You can still make a virtue of the necessity, and turn the trap into a political opportunity.


  1. I'm beginning to wonder if this is Christmas Tree politics - plenty of baubles hiding a false tree?

  2. We should find out tomorrow, Crinkly. From Ms Cunningham's comments yesterday, the Bill should be introduced today and appear on the Parliament's website tomorrow morning.