30 April 2014

Can the Electoral Commission legally "block" Yes organisations?

There shall be a referendum on Scottish independence. Well, the legislation doesn't quite put it that way, but the Scottish Independence Referendum Act 2013 paved the way, in law, for September's poll and laid down many of the rules which will govern how it is conducted. Want to splash out that windfall or inheritance on advertisements and leaflets during the last sixteen weeks before polling day? Well don't spend more than £10,000, or you'll find yourself up before the beak, and in line for up to a twelve-month spell in chokey. 

Alternatively, if you have deeper pockets and are keen to spent your lucre on promoting your constitutional preferences, you can make a declaration to the Electoral Commission as a "permitted participant" under the Act, informing the Commission about which side of the argument you intend to agitate for.

Permitted participants can be individuals, political parties, corporations, trades union or unincorporated associations. The rules require certain connections to the UK, but beyond that, they're fairly light touch. Individuals must live in the UK or be registered on one of the referendum's electoral rolls to qualify. Companies must be registered here, or carry out business here. Unincorporated associations must "carry on business or other activities wholly or mainly in the United Kingdom". By making the public declaration to the Commission, these individuals and bodies win the privilege of spending up to £150,000 in the referendum period and come under obligations to report details of their spending to the Commission, under pain of criminal sanctions.  

In order to make their declaration, certain forms must be observed, and certain information provided. But under the legislation, the Commission doesn't have the power to refuse to register declarations properly made to it or to block qualified individuals or organisations from attaining permitted participant status: "the Electoral Commission must maintain a register of all declarations made to them" (Schedule 4, s5(1)). (And concerningly for the CBI, despite their attempts to reverse ferret on declaring for the No campaign, the Act also says nothing about removing an organisation which has spontaneously made such a declaration from the Commission's books.)

So far, so much technical minutiae. But for those of you who opened your copies of the Herald this morning, you'll have noted that Better Together is agitating for the Electoral Commission to not to "approve" a range of Yes supporting groups - Business for Scotland, National Collective, Women for Independence and the like - as "permitted participants" in the campaign, after the Scottish Independence Convention's status was confirmed by the Commission.  Per Magnus Gardham in the paper:

"REFERENDUM watchdogs are coming under pressure to block the registration of a string of pro-independence groups amid claims they are being used as a front to boost the Yes campaign's spending power in the run-up to the vote.
Unionists are concerned a long list of pro-independence groups linked to the main Yes Scotland organisation will be recognised as official campaign bodies after the Electoral Commission yesterday approved one, the Scottish Independence Convention, as a so-called "permitted participant".
Under referendum rules, permitted participants are allowed to spend up to £150,000 campaigning in the final 16 weeks before the vote. The cash does not count towards ­official lead campaign body Yes Scotland's £1.5 million spending limit provided the organisations do not work together or co-ordinate their activity."

On the basis of the Act, this talk of "blocking" and "approval" is a nonsense. If the Commission purported to "block" a qualified organisation from registering as a "permitted participant" in the campaign, it would be acting beyond the powers parliament has given it, awarding itself discretion where the law gives it none.  A trip to the Court of Session would be in order to set matters right.

Where Better Together are on stronger ground - and pro-independence organisations will have to be careful - are the rules (you'll find them in Schedule 4, s20) about collusion between campaigning bodies, incurring referendum expenses as part of a common plan.  Given the wealth of pro-independence organisations, the comparative ease of attaining permitted participant status, and the complex informal relationships between these organisations and Yes Scotland, disentangling their spending from the official campaign and ensuring that the campaign finance rules are observed is sure to be an appalling headache for the Electoral Commission over the weeks and months of the official campaign.

15 April 2014

Expert blasts "reckless" SNP royal policy

Disaster on disaster. While in the pages of Daily Telegraph the First Sealord warns that independence would hull our maritime security below the waterline, in the Kinlochbervie Chronicle this morning, Ecclefechan Mackay (MA) writes of the latest calamity to engulf the Yes campaign. This band of jokers. What are they like?

Expert blasts "reckless" SNP royal policy Kinlochbervie Chronicle, 15th April 2014

The Yes camp was thrown into disarray last night as a leading royal expert blasted the SNP's policy of retaining the monarchy as a "reckless gamble with the security of western Europe". In a speech today to the respected Brookings bar and grill, Washington county Durham, Nicholas Witchell will argue that "all recent European experience tells us that pooling the sovereign doesn't work without a political union", warning that "a cataclysmic succession crisis is inevitable" if Scotland splits.

In a combative speech, Witchell, a former senior BBC royal correspondent, argues that retaining the Queen as head of state will "embolden the forces of darkness" in the House of Windsor, increasing the likelihood of intra-family poisonings and assassinations "tenfold". "The only thing keeping Princess Anne's dagger out of Charles' belly is our shared commitment to primogeniture under the secure umbrella of a shared UK Act of Settlement," he will say. "A separate kingdom puts all that at risk." Witchell will also point to the 1701 Scottish resistance to the imposition of the Hanoverian line of succession and the controversial, unsanctioned 1651 coronation of Charles II in Scotland, as evidence that a separate Scotland would "inevitably" destabilise the ruling house, "emboldening our enemies" in the rival courts of Europe. 

Citing security concerns, Buckingham Palace refused to provide details of the monarch's contingency planning in the event of a Yes vote. However, sources close to Her Majesty reveal that murder holes are already being installed in all palace bedrooms and the heir to the throne will be obliged to wear a protective chainmail coif and steel-forged breastplate at all times. The level of Prince Charles' lamprey consumption will also be monitored regularly by royal officials. It is understood that Baron Foulkes of Cunnock has been informally approached to serve as "Taster of the King's Vittles and Inspector of the Royal Privy."

However, experts have questioned whether these measures go far enough to avert the inevitable game of thrones that will grip Britain after a Yes vote. It is understood that Princess Royal, known for her affection for Scotland and private support for secession, has already begun to take soundings on the possibility of being appointed Queen in the North in her own right.  

The embattled pro-independence campaign has also been urged by its opponents to produce a "Plan B", in the event that the entire British royal household is exterminated in a bloody massacre by one of their sworn but treacherous bannermen.  "This is yet more bluff and bluster from Alex Salmond", deputy Labour leader Ser Anas Sarwar MP said. "The First Minister is only too willing to put Scotland's head on the block in pursuit of his unsafe, uncosted royal policy. The irresponsibility of the Nationalists is limitless."

Dr Augustus Troutmark, Early Modern Professor of Political Murder at the University of Edinburgh, endorsed the royal commentator's critical analysis. "Let's be honest. It is extremely difficult to envisage any scenario in which a conniving, homicidal hunchback could be prevented from assassinating his royal nephews and seizing the throne in an independent Scotland." 

The Duke of York was unavailable for comment. 

14 April 2014

The end of the world as we know it

Nothing is so beautiful as spring, when weeds in wheels shoot long and lovely and lush. 

The green shoots are even showing in the plush Scottish Independence Podcast studios. After a wintry period of radio silence, we're back with episode 42 of the For A' That podcast, where Michael Greenwell and myself blether about the latest developments in the independence debate with the liveliest voices from the Scottish political scene.  

This week, we were joined by returning guest, Gary Dunion. By day, Gary works for independent MSP Jean Urqhuart in Holyrood. By night, he wears a cape, solves crime -- I understand that he also has some connection to the Scottish Green Party.  Alongside Gary, we were also joined by Vonny Moyes. Vonny burst onto the Scottish blogging scene with this cracking piece for National Collective, arguing that "We may be wee, but we're not stupid." When she isn't agitating for independence, Vonny is comedy editor of The Skinny

On the show this week, we take an opportunity to look back at the sad loss of Margo MacDonald. What was her impact? Will we see her like again, and does the Scottish political system really encourage the emergence of idiosyncratic, boisterously-independent characters? Second on the bill of fare, Lord George Robertson's intervention of last week, suggesting that the security of the western world hangs on the shoogly peg that is Scotland's continuing presence in the union. Could Geordie be right? What dark forces are rising anyway? Are the firearms kept in Nicola Sturgeon's personal stash capable of denting the star-forged carapace of the Dalek Emperor? Does Alex Salmond have the pluck personally to throttle the unnameable, unimagible thing in Scotland's basement, or will we have to rely on NATO and EU intervention? Answers on a postcard, please.

As usual, you can listen to the show here, or on iTunes, or download it to your device of choice for later consumption. There are also plenty of other tracks which you can rifle through over at the show's homepage, including Michaels' ScotIndyPod interviews with a range of interesting characters, sharing their thoughts and evolving sentiments on Scotland's constitutional future.

13 April 2014

Green shoots & silver linings

I've always been a bit more pessimistic about the likelihood of carrying the referendum than many of my independence-supporting fellow travellers. But as I argued on BBC Good Morning Scotland on Friday (from around 02:08:00), there are increasing reasons for pro-independence folk to be optimistic.

Winning independence this time around always seemed like one of politics' longer shots. Any realist couldn't but think otherwise. It is sometimes easy to forget that the 18th of September 2014 represents a premature encounter between Scottish Nationalism and its ambitions. On Holyrood polling day in May 2011, it was clear that Scottish Labour was in its dumps, but the extent of the drubbing they received surprised everyone, themselves not least.  It was assumed that whatever national trends formed in the polls, Fortress Glasgow and urban west central Scotland would continue stubbornly to resist the appeals of a Nationalist government in Holyrood. 

Not so, it transpired. The proportionality of our electoral system coughed, sputtered and died, and the SNP returned to power, winning 53% of the seats on 45% of the vote. Factoring in the pro-independence Greens and the late-lamented Margo, parliamentary support for a referendum vaulted from its status as a minority enthusiasm between 2007 and 2011, into the dominant feeling in the chamber. But out in the country, by contrast, support for Salmond's administration could not be taken as an unproblematic endorsement of the First Minister's constitutional ambitions. 

On polling day in 2007, on the doorstep out in Govan, I met an anxious old dear who was clearly tempted to lend Nicola her support, but who remained unconvinced by independence. "If I vote for her, if they win, we won't become independent right away will we?" The SNP's commitment to a referendum gave us an easy answer, alleviating her concerns. Before it was seriously in prospect, polls continued to show that little over a third of Scots willing to endorse the party's constitutional goals.  While the installation and credibility of an SNP government in Holyrood has undoubtedly done something for the plausibility of self-government in an independent state, the continuing popularity of the Nationalists has not - as some hoped - straightforwardly powered forward support for independence.

In parallel, internal debates in the SNP between "fundamentalists" and "gradualists" have essentially petered out, replaced by an orthodox commitment to constitutional salami-slicing, gaining more and more power for Scottish institutions by slow degrees. Regard for the caution of the Scottish public undergirds this strategy. Without a parliament, government or a distinct Scottish exchequer, embracing independence really would represent a leap in the dark. But accrue more power, establish distinct and credible political institutions - and the gulf between independence and the status quo requires only an imaginative hop skip and a jump - and a little bit of luck - to bridge.  

Tam Dalyell argued, notoriously, that devolution put Scotland on a motorway towards a separate state, with no turn offs and no exits. That's much too fatalistic for my tastes, but Nationalist gradualism strives to keep us in the constitutional fast lane, applying judicious force to keep the engine at full throttle. But in some respects, September's referendum sits uneasily with this incrementalist thinking towards independence. While Holyrood has extensive powers, substantial authority over taxation and welfare continues to allude it. The political leap we are inviting the Scottish people to make in the autumn is narrower, far narrower, than the case made before devolution, but it'll still significantly exercise the hamstrings.

Although a loss would represent a generational set-back, the constitutional penny-shaving can continue unabated. Without the referendum, it is unthinkable that Labour and the Tories would now be talking about and committing to further redistributions of power.  For the gradualist Nationalist, utterly fatalistic about our chances of victory in the autumn, the referendum process performs critical tasks, irrespective of its outcome. It has clamped their - less than enthusiastic - fellow drivers' feet down hard on the accelerator taking us along Tam's highway.

More diffusely, win or lose, this referendum also represents a generational mainstreaming of the idea of independence.  No longer the crackpot scheme of Culloden-addled gentlemen in marmalade tweeds, by the 18th of September every citizen from coast to coast will have been invited to take the prospect of an independent Scotland seriously. Even on the worst of the opinion polls, many and most will do so. That thought is unlikely to butter many parsnips in the Nationalist gloom and despond after a No vote, but seen through the wider historical lens of the last eighty years, that too is an achievement on which future generations can campaign and build.  Even this gloomy worst-case scenario is not without some delicate motes of light.

But increasingly, I find myself more optimistic, less in need of these consoling thoughts. The conjunction of factors is such, that the case for independence is looking as healthy as it ever could be at this stage of the campaign.  That this is the case is, partly, attributable to the wily calculation of Nationalist strategists, but we're also proving lucky in our opponents.

The coalition's miserable and alienating government programme continues. The SNP have nabbed the "no mandate" argument which Scottish Labour MPs used to toss Maggie's way, framing the debate around a simple question, about who you would prefer to take the key decisions on taxation, social security, and the rest. Their opponent's motto - Better Together - suggests similar questions. Better in what ways? Better how? Set against the background of the current Westminster government, that is an awkward question for the Labour-dominated No campaign to answer convincingly. And as I've argued here before, the undefered UK general election campaign cannot but put massive pressure on the internal congeniality of the No coalition in the last stages of this campaign.

On the radio on Friday, the Guardian's Severin Carrell argued that we've seen nothing yet, and the sinewy, crouching tiger of the Scottish Labour campaign is poised to spring into life. But the underground grapevine tells it differently. Committed Labour cronies tell a consistent story of activist disaffection and disengagement. Pro-Union Tories bitch about their hated colleagues' uselessness and inactivity. While the Union clearly has some ardent partisans in the People's Party, the enthusiasm for No is anything but general. We didn't enter politics to talk about the constitution, we're not going to campaign till our shoes are hulled and our feet are callused and broken for it either.

Irrespective of the electoral mathematics, gelatinous Ed Miliband continues to look an improbable candidate to lead the nation, and certainly no shoo-in after the next UK general election. Labour's devolution offer, a crucial opportunity to reclaim a bit of ambition and initiative, foundered on the shoals of its own small-mindedness, partisanship and incoherence.  A critical opportunity for the No campaign, squandered. The waxen form of Nigel Farage looks set to stub out his fag on all of the other UK parties in the European elections, putting pressure on the policies of both Labour and the Tories, tempting both towards UKIP's brand of right-wing, "right-thinking" populism.

The pat answer to these factors is that Scots aren't terrifically bothered about devolution, and don't give a fig about the European elections, which perhaps has a pinch of truth if you consider the electorate en bloc. But winning this referendum is about accumulating the 50.1% coalition. If 5% of folk care about the European ideal, and can be persuaded to attach that ideal to support for independence, we inch forward. Many and most may not have clear ideas about how devolution distributes powers between institutions in these islands. But if 5% can be persuaded to endorse independence in the absence of a substantial and credible alternative offer, we nose ahead.

You could feel the green sap rising at the SNP conference this weekend. Horrid, dirgeful cynic that I am, I can feel it too. Darn tootin', comrades. We might just win this one.

4 April 2014

There's no replacing Margo

When my grandmother went to her grave, an SNP symbol beamed out from the cover of her order of service. It was a pleasing touch of the absurd in the kirk, reflecting the dead woman's true religion more accurately than the God and Saviour invoked by the Church of Scotland minister officiating. In life she never had much time for the Christian god, but perished, her belief in Scottish independence undiminished. As we draw closer than ever before to realising these dreams of national independence, these losses sting with an acute sense of injustice.

Today yields up another, with the tragic news of Margo MacDonald's death this afternoon, her work unfinished, the campaign unwon. A Biblical parallel seems apt, recalling Moses who, after his decades and travails in the desert, gave up the ghost on the boundaries of the Promised Land, leaving the Israelites to trek on alone. It just doesn't seem fair.

Tributes are already being written. More will, I'm sure, flow.  In a time where politicians often seem feart to be themselves - cautious cardboard cut-outs or superficially slick, soulless voids - Margo shone, a character, independent, irreverent, quick with the repartee.  

There will be an empty chair in the chamber when Holyrood next reconvenes. Under section 10 of the Scotland Act, it will remain vacant until the next Scottish parliamentary election in 2016. In contrast with constituency MSPs, the devolution legislation provides that where an individual wins a regional seat and steps down or dies, there can be no by-election to replace them. Nor is there a party list from which the next-ranked parliamentarian could be selected. 

This may seem odd, but the purpose of the regional list is to moderate the lack of proportionality generated by the first-past-the-post contests in the constituencies. A by-election would disrupt that proportionality and would have to be region-wide in scope. In its wisdom, Westminster declined to consider that option in setting up the Scottish Parliament, which will now sit on with just 128 members.  There is a certain fitness to that.  It remains to be seen whether any parliamentarian will take up the fallen banner of Margo's much-improved Assisted Suicide Bill, which Holyrood was due to consider this session. I hope so.

In both senses, Margo's premature departure from the stage, before the curtain call, is Lothian's and Scotland's loss.

1 April 2014

Articles of Disunion

Independence day. After months of negotiations, Scotland's formal ties with the UK have been unravelled. Compromises have been made on each side, but overall, both parties are as satisfied as they ever could be with the outcome. A new chapter opens on inter-governmental relationships in these islands, and a refounded, strengthened Scottish Parliament sits for the first time.  But wait one moment. What powers does this new legislature have? And what limits on its powers?

Under devolution, the Scottish Parliament is a creature of statute, created by the Scotland Act, its powers and liberties defined by Westminster. It may be a politically acceptable description to see independence as completing the work of devolution, giving Holyrood power over all of the matters currently reserved to London. But legally? That doesn't work at all.  Independence blows the Scottish devolution system to bits.

You need an interim constitutional platform to take its place. A fact recognised last week by Nicola Sturgeon, who announced that the Scottish Government are working on an temporary constitution, to apply until such time as a permanent constitution can be agreed, and establishing the process for formulating the more permanent fundamental law of the independent Scottish commonwealth. 

Cue some noises off. Isn't this a sinister development? Where does this leave the SNP's protestations that the drafting of the constitution should be participative? What mandate does the Scottish Government have to impose a constitution - even in the interim - on the Scottish people? To my mind, these objections rest on a couple of fundamental misunderstandings. Firstly, we need a provisional basic law to govern the interregnum. We can't do without one, and in some areas, we wouldn't want to.  Secondly, using a broadly participative process to adopt this basic law would be impractical and inappropriate.

For example, what becomes of your fundamental rights between independence day and "constitution day", whenever it falls? As it stands, Acts of the Scottish Parliament can be invalidated if they violate the rights protected by the European Convention on Human Rights, running from the right to be free from torture, to protections for your privacy and freedom of expression. But independence throws the status of the whole Scotland Act scheme into doubt.  If Holyrood were simply to succeed to Westminster's sovereignty north of the border, nothing would prevent the parliament - during the interim period - from ignoring your basic rights.

Similarly, if Scottish Ministers were simply to acquire the powers of their London counterparts before Scotland's permanent basic law was agreed, Alex Salmond would gain the Prime Minister's power unilaterally to declare war under the Royal Prerogative, without reference to parliament.  Politically, this is unlikely to be a goer. In practice, one might expect any Scottish premier to ask the legislature before commencing military action. There is no evidence that the First Minister has dark designs on Berwick, but it is hardly unthinkable that some international conflict involving NATO forces might arise before an impeccably participative process drafts and agrees Scotland's permanent constitution. What then? 

Should we mutely inherit some of the least attractive aspects of the UK constitution for - potentially - a number of years before subjecting them to proper forms of democratic accountability and control? I'd argue not.  An uncontroversial, sober, conservative interim written constitution is essential if these uncertainties and potentially pernicious inheritances are decisively to be avoided.

Ah, but why should the government of the day get to define which rights are fundamental even temporarily? Isn't that unsettling? In the longer run, certainly. And if it looked like the government of the day thought it would chance its arm, and renege on the commitment to drafting a new constitution, I'd join you on the barricades. As the SNP have rightly accepted from the get-go, the constitution does not belong to the governing party and should not be shaped exclusively by its preferences.  But a temporary text? That's a different barrel of herring.

The idea that you use a protracted, difficult and complex process of participation to draft the interim constitution fabulously misses the point.  What would be the point in the second process if the first produced a constitution warranting long-term protection? And what the devil do you do in the interim? To my mind, it would be a terrible idea to try to run the independence negotiations and the planned-for constitutional convention in parallel. 

Having these two conversations in tandem can only confuse, not least because some elements of the constitution will doubtless be informed by whatever deal is cut with the Westminster government. Nor should we assume that the timetables for the two processes will neatly tack onto one another. Far more sensible to adopt a functional, impermanent set of rules in the interim, deferring the wider constitutional debate until such time as you are able to lend it your full attention, without subjecting it to arbitrary deadlines generated entirely by the pressures attending negotiations with the rUK government.

Ah, but wouldn't any interim constitution represent a model, a precedent for the subsequent process - and isn't that unfair, prejudging the issue in precisely the way the Scottish Government committed not to? Isn't this just the SNP trying to smuggle in their own preferences under the guise of an impermanent document, laying down train-tracks which a more participative process can be expected to follow?  

That could be true -- but only up to a point. It remains to be seen to what extent Nicola's text will represent a significant departure from the status quo. There is an obvious tension between insisting that the constitution isn't a matter for the government to determine, while simultaneously attempting to rule the question of whether the Queen should be head of state entirely out of consideration. But thus far, Sturgeon's public remarks on the plans have been masterly exercises in cultivated vagueness. As I understand it, the interim text is still being drafted, and is subject to particularly limited circulation even within the Scottish Government.

The most conservative proposal one might envisage would be an interim constitution which enshrines a unicameral parliament, the monarch as the head of state, still subjecting Holyrood legislation to strong judicial review under the European Convention on Human Rights, and imposing statutory controls on the exercise of the royal prerogative by ministers. A beefed-up Scotland Act, if you like. There might be a temptation for the Scottish Government to include a wider range of their own preferences in this interim document. For example, in addition to ECHR rights, the SNP leadership have indicated that they'd argue for nuclear weapons to be banned, and additional social rights to be written into the permanent constitution, and protected.  

The inclusion of this sort of material in the holding text would be - in my view - wrong, both in principle and in terms of political strategy. We need an interim constitution, to hold parliament and ministers in check, and bring clarity to the distribution of powers among the institutions of the state. Anything else is a recipe for needless legal uncertainty, which is always the handmaiden of litigation. But if the interim text makes it clear that it is no higher law, and can be changed by the subsequent process? I can't see the issue.

Lastly, a word on the process.  Perhaps the most interesting aspect of the Sturgeon story was the confirmation that her draft Bill will "outline the participative and collaborative process by which Scotland, as an independent country, will prepare its permanent written constitution." This is where the waters get choppier. How should the new constitution be formed?

Should we, like the failed post-crash Icelandic constitution, elect individuals to a special drafting group to compose the document? Should we re-form a Calman Max group of "civic Scotland" bigwigs and worthies, the same old faces and organisations, facilitating submissions from the crowd? Might we, like the current Irish Constitutional Convention process, mingle ordinary punters randomly selected from the electoral roll with politicians? Alternatively, should we leave less to chance, and allow folk to put themselves forward for consideration? And who decides?

The White Paper didn't go in for specifics on how the Scottish Government hoped the new constitution should be drafted, beyond that they believe it "should be designed by the people of Scotland, for the people of Scotland," drawn up by an “open, participative and inclusive" process.  That fuzzy formulation covers a multitude of different ways in which the process could be said inclusively to engage the public. It seems this Bill will hope to solidify those ideas, and commit the government to a particular model, which will doubtless provoke its own controversy.  Interesting times in Scotland for the dismal constitutional obsessive. I'm in my element...