Notes from the Rouge Morgue...

When did Scottish Labour become so inept at politics? 

This afternoon, Gary Gibbon of Channel 4 published this blog, reporting findings from his attempt to "take the temperature" of the party's Westminster delegation on the reported volte-face on devolving all of income tax to Holyrood. Gibbon found that the Labour tribunes were not happy little bunnies, not at all. 

"The temperature is at morgue chiller levels", he reports, alongside a series of damaging quotations from disgruntled parliamentarians, suggesting that tomorrow's Smith Commission proposals will be a calamity for the Union, a "complete disaster." Income tax devolution is not represented as the intrepid, visionary and generous act of a party comfortable in its own skin, emboldened by the referendum victory, and committed to "home rule" - but a grudgingly granted and much-resented concession. 

This is madness. If, as expected, the Smith Commission endorses these plans tomorrow, these leaky tribunes will have achieved nothing save to undermine (a) confidence that Labour will deliver on the Smith compact, if elected in 2015 and (b) strangle in the cradle the already frail delusion that Labour, in its current mood, is "the party of devolution", despite its historical boasts and pieties.  

Yesterday, I argued that the Smith Commission represents an opportunity for Labour and the Tories to redraft their constitutional storytelling, to restate the Union in bold, contemporary form and to re-articulate their own places within it in a more satisfactory way. The Smith Commission plans certainly contain the resources for a compelling shift in the constitutional debate.  A powerhouse parliament. Completing devolution's work. Expressing our faith in the capacity of the Scottish people to govern themselves. And for Labour - a critical opportunity to get back on the front foot and to knock the perfidious Nats helter-skelter.

And god knows, you'd think the People's Party would be glad of the life-raft. Bilious low expectations gnaw at Labour's credibility on devolution and its institutions. You'd think they'd have learned the lessons from reluctant devo-something offer, which saw them dawdling behind the Tories, mistrustful of Scottish self-government and apparently determined - above all - to protect the party interest. But today, on the cusp of their big opportunity to make the weather, they appear determined to appear stinting and huffy. Again. Madness. 

Bitching, publicly, about something almost certain to happen -- and instead of pitching it as a glorious triumph of a renewed, confident party, comfortable with devolution and at home with governing in the UK -- it is all soor faces and grief. Reluctant, crabbit, clenching, grudging. 

And there's more bad news. If the Labour MPs are girning on about income tax, it seems unlikely that Smith will recommend the devolution of substantial social security responsibilities -- that would drive them hopping mad and cultivate an altogether different temperature. My own view, for what is is worth, is that the failure to stump up significant powers over welfare will sign the Union's death warrant. Certainly not today, and probably not tomorrow -- but in the long run, the failure of nerve and failure of confidence will keep the underlying questions of social justice burning bright and hot. 

Labour look determined to lose the post-indyref peace. Their Unionist fellow travellers, anxious about the Union's continuing frailty and anxious that that peace is won and won well -- must have their heads in their hands.

"The buggers are out to get us."

On first glance, it sounds like a wee thing. A technical thing. On page ninety-two of Nicola's new Programme for Government, under the heading of land reform, the dry civil service prose notes:

"As part of this modernisation the distinction between movable and immovable property would be removed to give children, spouses and civil partners appropriate legal rights over both forms of property. This should ensure a just distribution of assets among a deceased’s close family to reflect both societal change and expectations."

I can feel your eyelids drooping, but the implications of this dreary little sentence are eye-popping -- if you happen to own great tracts of land and wish to bequeath them to your beloved son and heir. It'll have the Tatler class in the Borders and the Highlands buckled in grief. Ragged strips of tweed, the only remains of a popping laird, will be fluttering over rural Perthshire. But to see why, you have to know a thing or two about the Scottish law of succession as it stands. 

When you feel the cold hand of the Reaper feel your collar, or sense him hovering near, you have a few options. You can scribble up a will, setting out how you'd like your property and assets to be distributed after your death. Alternatively, you can leave the distribution to the law of intestacy, which sets out rules about who gets what after you are under the clod. Generally speaking, if you write your will, effect will be given to your testamentary wishes. Uncle John's gold watch will go to wee Jimmy, who always loved its ticking so. Your bungalow will transfer to the cat and dog home, to keep the nation's unloved moggies in the manner to which they have become accustomed. 

But you don't have limitless freedom under Scots law. Your close relatives - your spouses and children - have certain legal rights over your property. They can forswear whatever legacy you grant them in your will, and claim their legal rights from your estate instead. But here's the crunch. At present, these legal rights only extend to your moveable property - money in the bank, gold bullion in the shed, shares and so on. They don't extend to heritable property - to land and the houses built upon them. At least, not yet. 

If you wanted to be a cruel, cold-hearted Scottish patriarch, and to write your hated spouse and children out of your will, you had to drink the profits while alive, or invest them in land. But if you maintain a healthy surplus in your bank account, and try to exclude one child from inheriting any of it, they can override your will and claim their legal rights from your estate. Nicola's plans kibosh those aspirations. And these legal rights aren't paltry sums. A single child whose mother survives is entitled to claim a full one third of his father's moveable estate. That may amount to six bob and a pickled egg, or hundreds of thousands of pounds. 

The exclusion of heritable property from the bairn's part has obvious consequences: it allows large, landowning interests to keep their estates together, generation to generation, by immunising testamentary intent from legal challenge. It gives the dead landowner the final word on where their hunting estates, and farms, and stately homes end up. Second sons and daughters don't get a look in. If they are unhappy with the generosity of their legacies, they can claim their legitim rights, but the land itself is exempted. Which is why Nicola's proposals today, despite their untrumpeted delivery, have real radical potential.

If introduced, those disgruntled second sons and daughters would have the right to have land - potentially very large tracts of land - factored into their legal rights, whatever the deceased's will had to say about it. Perhaps these siblings would want to honour their father's wishes, and for the eldest boy to inherit the title and the property -- but I dare say others would want to vindicate their legal entitlements in the teeth of dearly departed's desire to disinherit them. If those making wills know that their wishes will not and cannot be enforced against their children, that too is likely to encourage changes of behaviour, and the gradual erosion and division of the country's biggest estates.

There are doubtless canny corporate workarounds and expensive trust work which could defeat the simple logic of the Scottish Government's policy here -- but extending legal rights to land is more than just a technicality. It strikes at the heart of the legal system of succession which is instrumental in upholding and maintaining landownership in its current form. Before the referendum, "one of the country's pre-eminent dukes" fretted in Tatler that "the buggers are out to get us." When His Grace chews through the implications of today's announcement, I dare say he'll be confirmed in his opinion.

Anticipating Smith ... on welfare

The coffee pail bubbles down to an acrid stew. The prawn sandwiches are curling. Night pulls the sun under the horizon. And the meeting, the interminable meeting, goes on. Civil servants clip in and out with scraps of paper. Hangdog faces dominate the table. Increasingly impolite apologies are offered, as the protagonists nip into the corridor to field hissing mobile phone calls, anxious not to be overheard. Nerves fray as weariness increases. Everything heads south. The final text is assembled, scrappily, bit by bit. Disagreements are finally squared, or not squared. Minds soon turn to the aftermath, to the lines to take, and the victories and the strategic retreats to be spun. 

This, give or take, must be the atmosphere in the Smith Commission as the last few grains of sand fleet through the hourglass, and Saint Andrew's Day approaches. The political representatives are due to announce their heads of agreement by the 30th of November: just days away. I'd expect this document to be simple, categorical - and leave several points of detail and practicality underdeveloped. It will not, I imagine, be a detained administrative blueprint, but a broad statement of principle and intent. How could it be otherwise, given the breakneck speed with which the report will have been assembled?

The Commission hasn't exactly been leaky - but there have been a few noises off from the political parties participating in it, who must now have a fair idea about the nature of the proposals which the group is likely to endorse, and the key points of friction between them. One of the weekend's most interesting stories was the news that the Liberal Democrats have reverse ferreted to an undisclosed extent on welfare devolution. So much, so vague. The new commitment may be much less than it seems, and until Thursday, one for the Kremlinologists trying to work out which coalitions of interest have formed within the Commission - and the extent to which Labour or the SNP finds their respective maximalist and minimalist visions of autonomy isolated by the other participants. 

It now seems probable, for example, that income tax will be devolved in its entirety - but important questions remain outstanding about the autonomy Holyrood would enjoy in terms of setting the basic rate and the bands. Elections too, seem likely to be devolved, with some hints that the fixtures and fittings of the Scotland Act will also be liberalised, to allow the Scottish Parliament to bend and shape its structure to meet changing needs. 

Pensions, however, surely have a snowball's chance of finding their way onto Holyrood's balance sheet (and in the absence of significant revenue powers, this may well be a damn good thing too). I'd also expect to see heads of agreement on codifying the Sewel convention. I'd be surprised if the legality of any future independence referendums was clearly entrenched in the new Scotland Bill - but you never know. There will be other flotsam and jetsam too, of greater and lesser degrees of technicality and public interest. Minimum wage? Answer came there none. Abortion law? According to the Sunday papers, maybe.

But the political firecracker is social security. What precisely does "substantial new welfare powers" look like? What can it look like, in a historically unitary system where social security has been squeezed within the framework of a universal credit? I'm reasonably confident that the Commission will agree in principle to something along the lines of the additional general welfare competency or a top-up function which I commended to them in my submission earlier this month.  

The idea is doable, legally workable, good in principle, and in line with fundamental principles of devolved autonomy and "pooling and sharing" resources. We might gripe - not unreasonably - that such an authority would be a paper responsibility only, while public spending is in the vice. But in a small way, it would beef up the armoury of the Scottish Parliament. Would it represent a "substantial" new power? Well, yes and no. In the absence of new control over significant swathes core welfare spending, it would be a drop in the ocean. But not without utility or significance for all that. 

There will be a strong expectation, at least, that the much-mooted housing benefit and attendance allowance will be devolved. The bedroom tax has given the scheme a high political salience, and expectations have been raised. But we can't be too blithe about its devolution. It'll cost a fair whack to wheedle housing benefit out of the universal credit - who will bear the cost of those changes? And if the cost is prohibitively high, and would consume an unreasonably high percentage of the Scottish budget alone, would it be worth the bother? 

It is one of those unlucky conjunctions for the Union. Dissatisfaction with welfare reform has increased the political salience of social security policy, and demands for its devolution, while Iain Duncan Smith's consolidation of welfare spending into a universal credit has made the devolution of these powers considerable trickier and more costly. If only Calman had had a little more forward vision back in the late 2000s. In terms of core welfare spending, the Smith Commission is now in all or nothing territory, essentially. And that has implications for the tax base and tax powers too. There is no point investing Holyrood with responsibilities it can't afford on a sustainable basis. 

Given the Labour Party's case for the Union, its "pooling and sharing" patter, however, it is difficult to see how any devo deal which includes Iain Gray and Gregg McClymont can be particularly radical, falling closer to everything than nothing on key forms of social security for the unemployed and the disabled. If Smith can't cajole the UK parties into a bolder vision, welfare policy looks doomed to become the Union's running sore. If the Union remains fragile, a feeble Smith Commission offer will do little to staunch the flow. 

The structure I propose - a general grant of power to Holyrood combined with protecting the UK welfare enactments under Schedule 4 - also represents a constructive way of approaching other issues, such as equalities, empowering Holyrood while protecting core UK statutes. Equal opportunities are currently reserved in Schedule 5. A better way of proceeding would be to protect the Equality Act 2010 from modification or repeal by Holyrood, but to give the Scottish Parliament the green light to adopt regulations and prohibitions to promote its own conception of the demands of equality.  

As things stand, the Scottish Parliament is tied up in pointless prohibitions by the Scotland Act's Schedule 5 approach. The time has come to conceive of the relationships between Holyrood and Westminster more flexibly and imaginatively. It chimes with the home rule methodology that autonomy should be devolved, save where there are compelling reasons to reserve the power exclusively to Westminster. 

There are several areas of policy, in a Union, where compelling reasons can be found. Bones should not be made about that. The "devo-max" vision of devolving everything short of foreign affairs and defence was always over-egged. What about our common market, the heart of the 1707 union, and everything that comes with it? What about decision-making on currency? 

The radicalism of the Smith Commission deal will depend, to a very significant extent, on which side - the autonomy-promoting Nationalist contingent - or the reluctant devo-minusers of the Labour Party - the other Smith Commission participants coalesce around. The Nationalists can be expected to argue that the settlement - any settlement - falls short of the "master key" of independence. Quel surprise. You'd expect nothing less. 

But there are other propaganda wars which the Unionist parties must fight and win. For the Unionist spinners, the plans cannot be another badly-sold Scotland Act 2012 - finnicky, grudging, technical and forgotten. It must be crisp, easy to understand, its real-life relevance clear and categorical. It must be bullet-pointable. 

The proposals must be seen to honour the ambitions of "the Vow," however vague its commitments and mercurial its terminology. The bare terms of "home rule" and "federalism" - though much-quoted - don't really take us very far, compatible with a range of more and less powerful devolved institutions. Indeed, Holyrood already enjoys greater autonomy in some areas that many federal institutions in other states.

But politically, Labour, the Liberals and the Tories must be seen to be as good as their word. The SNP can be expected to slate the proposals as falling short of independence. The party would struggle, however, to make the broader and more significant indictment - that the Vow has been ratted on - if Smith's proposals are and appear to be substantial and bold. Smith seems likely to be the end of road for devolution: an event, not a process. Ruth Davidson's line in the sand, if you like. Thus far and no further. 

As the delegates sit down for their final meeting, slurping the cold coffee and labouring towards dawn, welfare autonomy perhaps represents Lord Smith's greatest challenge. Room for manoeuvre curtailed by the centralising force of the universal credit reforms, bounced by Labour's historic opposition to devolving key, highly visible benefits, it is increasingly difficult to see how the Commission's recommendations on Thursday can avoid falling short of the expectations raised.  

Cry last orders, ladies and gentlemen. The Commission is in for a long night on Wednesday.

Abortion: the limits of conscientious objection?

An interesting and tricky Scottish case has come up for decision in the UK Supreme Court this morning. Back in 2012, two midwives employed by Greater Glasgow and Clyde Health Board - Mary Teresa Doogan and Concepta Wood - brought a judicial review petition against the health board, arguing that they were being forced to "participate" in abortions, despite their conscientious objections, as devout Catholics, to the practice.

Section 4 of the Abortion Act 1967 recognises the right to "conscientious objection to participation in treatment," providing that "no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection."

Neither Doogan nor Wood were obliged to participate in the medical procedures producing abortions in the Southern General, but the pair were responsible for delegating, supervising and supporting other healthcare professionals in the treatment of patients undergoing termination of pregnancy. They argued that the conscientious objection provisions in the Abortion Act extended not only to participating in abortion procedures, but should also exempt them from responsibility for timetabling and supervising the practices they object to.

At first instance in the Court of Session, Lady Smith rejected this argument, holding that the Abortion Act's right of conscientious objection did not extend to the midwives' case-management responsibilities, as they didn't amount to "participating in treatment." Counsel for the health board argued that the logic of the midwives' argument could very well extend to the ward cleaner, whose scrubbing - in some sense - facilitates abortion in the hospital. Could, should they be able to argue that their mopping representing "participating" in abortions, and to decline to participate on religious grounds? Lady Smith thought not, and rejected Doogan and Wood's argument. 

The Inner House of the Court of Session had other ideas. The midwives appealed, successfully. Lady Dorrian held that Lady Smith's approach was too narrow, and the conscientious objection enshrined in the Abortion Act should be taken to extend - not just to direct participation in abortion procedures - but much more widely, to encompass the kinds of activities the midwives were being obliged to undertake in the Southern General. The Inner House held that:

As Lord Diplock observed in the RCN case, it is a matter on which many people have strong moral and religious convictions, and the right of conscientious objection is given out of respect for those convictions and not for any other reason. It is in keeping with the reason for the exemption that the wide interpretation which we favour should be given to it. It is consistent with the reasoning which allowed such an objection in the first place that it should extend to any involvement in the process of treatment, the object of which is to terminate a pregnancy. This is also consistent with our conclusion that the only circumstance of sections 1(1)(a) to (d) to which the exemption does not apply is section 1(1)(b), and that the only circumstance when the objection cannot prevail should be when the termination is necessary to save life or prevent grave permanent injury, because in such a situation the real purpose is not to effect a termination but to save life or prevent serious permanent injury.

Today, the Greater Glasgow and Clyde Health Board ask the UK Supreme Court to reverse this decision, and to endorse a more limited conception of the right to conscientious objection to abortions. So, "does s.4(1) of the Abortion Act 1967, which provides that "no person shall be under any duty to participate in any treatment authorised by this Act to which he has a conscientious objection", entitle a Labour Ward Co-ordinator to refuse to delegate to, supervise and/or support midwives providing care to patients undergoing termination procedures?" 

That's for Lady Hale and Lords Reed, Hodge, Wilson and Hughes to decide.

Let Glasgow flourish?

Some muddled thinking has been creeping - and yesterday marched boldly  - into the devolution debate. "Power over housing benefit should be devolved." This way of talking about and conceiving of devolution - as a box of tricks for distribution - is often a useful shorthand, but sometimes it leads us into deep confusion. 

So it is this morning, with reports that the Labour leader of Glasgow City Council, Gordon Matheson, thinks the city needs "more devolution" of its own, and has petitioned the Smith Commission to this effect. The Commission, argue cooncil chiefs, must apply itself not just to devolution within the UK, but also to "devolution" within Scotland. In the Daily Record, Matheson argues that while he shares:

"... the widespread consensus that more powers should be devolved to Scotland, this cannot just be pass-the-parcel between Westminster and Holyrood. Simply moving powers from one centralising parliament to another isn't true devolution."

Precedent for conceptualising greater local authority power in terms of "devolution" is to be found in Labour's Devolution Commission report, which is chock full of references to o'erleaping the Scottish Parliament, and investing civic authorities with additional "devolved" authority. You may or may not agree with Matheson's point about the importance of greater local control over political decision-making. But conceptualising this argument in terms of "devolution," and calling on Lord Smith and his colleagues to give effect to it in a new Scotland Bill in Westminster, entirely misunderstands the legal basis for devolution and - indirectly - calls for the UK parliament to be reinvested with sovereign sway over the shape of Scottish municipal and local government. A funny sort of outcome, for a proposal passing itself off as "true" devolution. Let's take it through in stages.

The bottom line is this: the debate about Scottish devolution is about the powers which Holyrood cannot exercise, what the Parliament cannot change, and which Westminster decisions are to be treated as set in stone. That's the framework which the Scotland Act gives us. It doesn't list powers devolved, but only powers retained. The rest, it commends to the Scottish Parliament's collective judgement.

In law, there is no such thing as a "devolved" power, only a reserved one. And the difference between the two is critical - and totally missed in Matheson's intervention. As things stand, Holyrood cannot introduce its own social security schemes, nor can it modify or repeal the Human Rights Act. What it can do, however, is shape, reshape or even abolish local government in Scotland. MSPs may decide to invest local forms of government with greater and lesser powers, or to diminish their powers in devolved areas. That's their purview. 

Against that legal background, Matheson's idea of "city" devolution is simply incoherent. The only feasible way in which additional powers could be "devolved" to cities by a Scotland Bill is to add local government to the list of things Holyrood can't legislate for under schedules 4 and 5 of the Scotland Act. That's the form of devolution Donald Dewar and his colleagues bequeathed to us in the 1990s, in framing the parliament's founding statute. It's logic is inescapable. What Matheson is - essentially - calling for is for local government to be re-reserved, and for Westminster to determine what form of local government is appropriate for Scotland, immunising Glasgow and its sister councils from unwelcome Holyrood interference. 

We're seriously at risk of conflating two different lines of thinking here. Is it desirable that Scottish local government should enjoy greater autonomy in some areas? Perhaps. There are certainly compelling arguments to be made. Interestingly, this is one of the few themes which Nicola Sturgeon has consistently referenced in her public remarks since the referendum result. Presaging what? Who knows? But it is not, I think, an insignificant choice of topic for the incoming First Minister to expend breath on. 

But the idea that powers should be "devolved" from Holyrood to local authorities by Westminster is a red herring. This could only be achieved by clawing back powers which the UK parliament willingly devolved when Holyrood was founded. It is one thing to agitate in the Scottish Parliament, and to remonstrate with the Scottish Government, for a different vision of local democracy in Scotland to be realised through ordinary legislation. It is quite another to ask for this aspiration to be inscribed, unalterably, in the Scotland Act by Members of Parliament in Westminster. But logically, that's what Glasgow civic leaders are pushing for. 

Is it "true devolution" to have the form and powers of Scottish local government decided by a faraway parliament in the imperial capital, depriving Holyrood of powers it has enjoyed since 1998 and for the foreseeable future? Pardon me, Mr Matheson, but colour me skeptical. 

From beyond the grave...

Pack up your ghouls and your bogles, your Angry Salmond costumes and your terrifying Jim Murphy masks: Halloween, it is passed - but something else stirs from beyond the grave. It took its last breath at the end of June 2014 - but after being buried in the #indyref interregnum - the For A' That podcast is back on its feet and clawing through the clod, crying "brains, brains." 

For episode 46, I joined Michael Greenwell - as ever - and a brace of frumious Aberdonian cybernats in Gillian Martin and Doug Daniel - to chew the grey matter and and ponder the post-indyref zombie apocalypse, more than a month on from the fateful day, under its low sky. 

On today's menu, the surge in memberships of independence supporting parties: what does it presage? Is a Yes Alliance, a dominating part of the SNP deputy leadership pitches, a viable, desirable or effective political strategy? And which of the three candidates - Constance, Hosie or Brown - is to be preferred? Do we want a balanced ticket? Would it be helpful, in the coming conflict to have a Westminster-based deputy? Or would it send a powerful and desirable message to have two women leading the SNP? 

Over on the red benches, what are we to make of the tribal conflict in Scottish Labour, and which of the three would-be chieftains will drub their opponents and come out on top? And is Murphy really the credible, winning figure much of the press has painted him out to be? You can lend the show your lugs here.

Alternatively, you can download the show directly here, listen to it online at its web page or subscribe via iTunes.