Land reform: through the looking glass

An awkward admission: by far the biggest hurdle to "radical" land reform in Scotland is the European Convention on Human Rights.

In terms of traditional political loyalties, we're through the looking glass here. Tweedy landlords, conservative estate owners and land agents may vote Tory to back the established order -- but if Gove is permitted to strip Convention rights out of Scots law, those self-same property owners would find themselves entirely at the mercy of a democratic majority in Holyrood hell bent on a substantial rejigging of the territorial map.

They may not give a ha'penny toss for many of the freedoms the ECHR enshrines, but their right to property -- well, that's a different story. Without it, they would quickly discover that their vaunted rights at common law aren't all they're cracked up to be. They'd find Magna Carta mum. People inclined to defend your Convention rights, by contrast, find themselves stymied again and again by Article 1 Protocol 1, and the right to property it enshrines. This right to property isn't absolute. States enjoy a broad margin of appreciation within which they can raise taxes, regulate property and so on -- but the right has real teeth. Fans of cognitive dissonance, eat your heart out. The basic text of the Convention reads as follows:

(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. 

(2) The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

For many land reformers, our history of a strikingly unequal distribution of landed property is a nightmare from which they are trying to awaken. Our situation recalls the well-known joke about the tourist in Ireland, seeking directions. "Well if I were you," a local replies, "I wouldn't start from here." But ownership is, inevitably, backwards looking. Without a revolution, we don't begin at year zero, with a clean slate. It isn't a matter of hitting reset and redrawing the maps. 

History also teaches us that the landed interest have the wealth and willingness to go to law where they believe their rights have been violated -- and win.  The first Act of the Scottish Parliament to be struck down by the courts on human rights grounds concerned a challenge by a landowner to the rights of one of his tenant farmers.  The owner won; the farmer killed himself shortly afterwards. These strictures aren't to be sniffed at and they aren't all that easy to get around in a systematic way. 

Although the text of the Convention doesn't expressly require the state to pay compensation to people whose property it expropriates, it has been interpreted in that way by the European Court. For example, in James v. The United Kingdom, judges made clear that the state must give fair compensation to those whose property is taken or transferred:

"... under the legal systems of the Contracting States, the taking of property in the public interest without payment of compensation is treated as justifiable only in exceptional circumstances not relevant for present purposes. As far as Article 1 (P1-1) is concerned, the protection of the right of property it affords would be largely illusory and ineffective in the absence of any equivalent principle. Clearly, compensation terms are material to the assessment whether the contested legislation respects a fair balance between the various interests at stake and, notably, whether it does not impose a disproportionate burden on [property owners]."

Compulsory purchases can be justified in the general interest -- but kicking the lairds out of their castles and estates without stumping up cash is doomed from an ECHR point of view. As a result, finding a mechanism which (a) effectively redistributes and rebalances land ownership while (b) working within the current owners' right to property ain't easy. 

In the Land Reform (Scotland) Bill, we find the Scottish Government's latest attempt to do so. You'll find the most controversial provisions in Part 5 of the Bill, which sets out a revived right to buy.  That right will only be exercisable by community bodies or a third party which they nominate -- and with consent of Scottish Ministers. Ministers must not consent to the transfer of the land unless all four of the following criteria are met. And the criteria to be met are pretty ferocious.

1. The transfer of land is likely to further the achievement of sustainable development in relation to the land, 
2. The transfer of land is in the public interest, 
3. The transfer of land - (i) is likely to result in significant benefit to the relevant community  and (ii) is the only practicable way of achieving that significant benefit, and 
4. Not granting consent to the transfer of land is likely to result in significant harm to that community.

The third and fourth conditions are particularly onerous. Perhaps reflecting this, if would-be purchasers fail to secure consent, Scottish ministers will foot the bill for their application. If the community body does get the nod, however, the Scottish government will appoint a land valuer, who will independently assess the market value of the land, giving the parties the opportunity to contribute to the deliberations on fair compensation. The government will foot the bill for these valuations too, and if the owners or purchasers are disgruntled, they'll be able to go to the lands tribunal and air their dissatisfaction. Once the decision has been taken, owners will not be allowed to foil the process with a quick fire sale or sneaky transfer to their preferred purchaser. 

The land lobby have predictably attacked these criteria as vague and undefined, crying Mugabe, land grabs and bloody murder. They are nothing of the sort. The language of the legislation is necessarily impressionistic, allowing ministers to apply broad principles to different situations and applications from across the country. But surely the landowners are - also characteristically - protesting too much here. A thick vein of (understandable) caution runs through these proposals. As politicians and property owners shadow box, enjoying the mutual recrimination and batting at phantoms, a property lawyer friend summarised the reality more pithily.

"This Bill is not as radical as claimed by Scottish Government (given the thresholds for use of power to sell). Not as awful as claimed by landowners (for similar reasons). Basically, making something like this ECHR proof means they can't do something revolutionary."

There's a lesson somewhere in here for Tory enthusiasts of human rights repeal. When you're through the looking glass, you should be careful what you wish for. 

Gove: "in this parliament, human rights are a reserved matter"

Thanks to Jack of Kent, who alerted me to the House of Commons justice questions which took place yesterday.  A couple of SNP MPs took the opportunity to ask the Lord Chancellor about his government's repeal plans. Michael Gove indicated that he is due to meet the SNP Cabinet Secretary for Justice, Michael Matheson, next week. But new Aberdeen North MP, Kirsty Blackman, went on, putting the following to him: 

"The Minister will be aware that the Scottish Parliament voted by 100 votes to 10 to endorse the Human Rights Act last year, and that parties representing 58 of the 59 Scottish Westminster seats are against the repeal. Will the Minister make a commitment to not imposing the repeal on Scotland against the will of our people?"

 Gove's reply is remarkable. 

"She makes a very powerful point about the range of opinions in support of safeguarding, enhancing and indeed modernising our human rights in this country. I shall look forward to engaging with the Scottish National party and others, but I think it is important to stress that in this United Kingdom Parliament, human rights are a reserved matter, and parties that support reform of the Human Rights Act secured more than 50% of the votes at the last general election."

Which is, of course, rubbish. Human rights are categorically not a reserved matter, "in this United Kingdom Parliament", or anywhere else. Rummage through Schedule 5 of the Scotland Act, and you won't find them listed. Indeed, the only reference to human rights in the big list of things Holyrood cannot do makes clear that the issue of "observing and implementing international obligations, obligations under the Human Rights Convention" is not reserved.  

As Joanna Cherry's Scotland Bill amendment flushed out on Monday of last week, Gove's only argument that the Sewel convention doesn't apply is far narrower than his imperial answer suggests. Constitutionally, the fact that Mr Gove feels he has a Commons mandate is neither here nor there.  To quote section two of his government's Scotland Bill, "it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament."

Yet more slapdash legal homework from this incompetent government,  The shambles continues.

HRA repeal: Let's make Gove walk burning coals...

Scotland Bill Monday taught us that Her Majesty's government in London believes that it is within its legal and constitutional rights to repeal the Human Rights Act without reference to Holyrood. They argue that the Sewel convention is not engaged, that the Act is a reserved matter, and that MSPs should get stuffed. 

By contrast, Cabinet Secretary for Justice, Michael Matheson, has indicated that the Scottish Government "will robustly oppose any attempt by the UK Government to repeal the Human Rights Act or to withdraw from the ECHR." Nicola Sturgeon has already said that "the SNP Government will invite the Scottish Parliament to refuse legislative consent to scrap" the Act. 

In more consensual times, issues of this kind tend to be worked out amicably between the UK and Scottish governments, with ministers cooperating to bring the consent motions before Holyrood for assent or rejection. But here, Scottish and UK ministers are now on course for a fundamental, head-on collision; one government arguing that Sewel is engaged, the other arguing that it is irrelevant. We're in the debateable lands of a constitutional crisis. So here are couple of ideas for MSPs of whatever stripe, who are keen to give the Tory government as rough a time as possible in their attempt to roll back our basic rights. 

1. Get ahead of the game. Seize the initiative. Why doesn't the Scottish Parliament Justice Committee, or Holyrood's Devolution Committee, take it upon themselves to conduct a short enquiry on whether Therese Coffey's high handed and complacent Commons answer was right? This is a fundamental question of Holyrood's legal prerogatives. There is no excuse for a rushed, cack-handed panic once the Tory government publish their Bill. As Malcolm Tucker might say, we should get our retaliation in first. Pile on the pressure. 

The Tory manifesto pledged the new government to axing the Act. This isn't a hypothetical proposal. All we are now awaiting is the detail. Why not anticipate it? Cameron's repeal plans have been delayed. MSPs should seize the opportunity that represents.  Let's fill the legal vacuum between David Mundell's ears. Take evidence. Get the Law Society in. Invite the Scottish Human Rights Commission. Academic types. 

Summon learned witnesses like Iain Jamieson to come along to air their views. A retired UK and Scottish Government lawyer, Jamieson headed the team of lawyers who instructed the drafting of the Scotland Act 1998 -- and argues, contra Coffey, that Sewel would clearly be engaged by HRA repeal. He would be well-placed to give our politicians a steer so that the debate on human rights reform can be conducted in full knowledge of the arguments. MSPs can make it so and exploit their bully pulpit. These aren't dull questions of legal technicality. They're constitutional firecrackers. Let's light them, and light them now.

2.  The Scottish Ministers don't have to dangle about uselessly.  It isn't enough to be right. It is critical to be right at the right time. Gove's delays represent a perfect opportunity for strategic preparation. So here's another scheme which our politicians would be canny to consider. Once the UK government publish their repeal Bill, the Scottish government should immediately lay a legislative consent motion before Holyrood, based on its own legal analysis, inviting MSPs to knock the proposal back. The matter is then referred to a Holyrood committee for scrutiny. All the better if that scrutiny has already been anticipated, and evidence already taken.   

Westminster is not in charge of this process. Whitehall's constitutional analysis is not final. Holyrood has standing orders on the procedures for indicating legislative consent -- and Scottish ministers retain considerable initiative. There is precisely nothing that Michael Gove or David Cameron or David Mundell can do to prevent the Scottish Government from tabling a motion on its own initiative with a view to convincing members to decline to give consent. So let's do that too. 

Like the Deputy Leader of the House of Commons -- the Prime Minister and his cabinet colleagues may believe that the Human Rights Act is theirs to destroy. Westminster remains sovereign. Tory MPs can ram through Human Rights Act repeal if they want. But they should be forced to do so in the teeth of the noisiest opposition possible. They should be forced to run roughshod over our devolved institutions and constitutional conventions. If they think the prize of repeal is worth traversing the burning coals, let their soles burn. 

Does repeal of the Human Rights Act require Sewel consent?

That's one of the critical questions in the legal and political battle against Tory plans to abolish the Human Rights Act.

Iain Jamieson, Professor Christine Bell and yours truly have argued that "axing the Act" would and should require Holyrood's consent under the Sewel convention -- which could be withheld. Hitherto, the UK government has been keeping its legal cards close to its chest. Gove has been mum. The Secretary of State for Scotland turned in a car-crash interview on Radio Scotland shortly after the election, in which he showed no awareness whatever of the devolved implications of his government's repeal plans. Little has been said since. Until last Monday, that is. 

Responding to Joanna Cherry's human rights amendment to the Scotland Bill in Westminster, Deputy Leader of the House, Therese Coffey, responded for the government. Significantly, she claimed that the Human Rights Act should be seen as a matter reserved to Westminster, invoking precisely the logic I warned about on Monday. She told MPs:

"The hon. and learned Member for Edinburgh South West referred in particular to amendment 67. Indeed, the right hon. Member for Orkney and Shetland said that this matter should be consistent across the UK, reinforcing that this is a reserved for the UK Parliament and not a devolved matter. The hon. and learned Lady said that the UK Government had not been clear on some aspects of this matter. I believe that the Prime Minister has been clear at this Dispatch Box. Amendment 67 would amend the Bill such that paragraph 1 of schedule 4 to the 1998 Act would be modified to remove the Human Rights Act 1998 from the list of legislation the Scottish Parliament cannot modify, otherwise known as the “protected enactments”. The House will be aware that the Government outlined their proposal to reform and modernise our human rights framework by replacing the Human Rights Act with a Bill of Rights. That was reinforced today by my right hon. Friend the Prime Minister at the celebration of the 800th anniversary of Magna Carta. Of course, we are aware of the possible devolution implications of reform and we can engage with the devolved Administrations as we develop the proposals. As the Secretary of State said, the Sewel convention, as intended by Lord Sewel, has been placed in the Bill, but this Parliament remains sovereign. The Government are certainly committed to human rights and, as I indicated earlier, we will consider the devolution implications."

Pete Wishart intervened, grouchily (and a bit inaccurately):

"That is just not good enough. These are fundamental and profound issues for the Scottish Parliament. We are dependent on the Human Rights Act for the competence of the Parliament. Will the Minister vow to go forward, make sure this is looked at properly, and come back with a more suitable and substantial response?"

And Coffey replied:

"The hon. Gentleman is right that these are important matters, and I can assure him that my right hon. Friend the Secretary of State is engaging with the devolved Administration as we develop the proposals. It has to be said, however, that the amendment is squarely outwith the Smith commission agreement, which contained no proposals in this respect. The hon. and learned Member for Edinburgh South West herself said it was not directly a matter for the Scottish Parliament."

In a nutshell, this suggests the Westminster government will argue that by dint of its inclusion as a protected enactment in Schedule 4 of the Scotland Act, the Human Rights Act is a reserved matter and Holyrood's consent is not required for the Tory majority to repeal the Act north and south of the border. Coffey's answer did not address the arguably more important question - will consent be required to enact a British Bill of Rights?  

But a straw in the wind. 

Nationalism without regrets

During the referendum campaign, I often described myself as a nationalist with regrets. Support for independence first came to me as a cherished family hand me down. But reappraising this inheritance with new, more adult eyes, I came to see and understand these ambitions differently. In some moods, my cynicism about Westminster and Whitehall is bottomless. I contemplate self-determination unflinchingly, without heartache and without bitterness. And think, unfairly, in the language of the old communist manifestos, that we have nothing to lose but our chains. Democracy, responsibility, a little hope. It seems like a fair exchange. 

But in other moments, the idea of breaking up Britain fills me with a sort of remorse. This long campaign has been conducted without violence -- but if ever it is successful, independence represents a violent break in our shared history. Tumult. Possibility. Refashioned tries. Redefined relationships. It will be a creative destruction -- but somehow a destruction nevertheless. In these moods, this long family and national project can seem, not like a noble emancipation, but an evil made necessary by disappointment and frustration, by lack of ambition and want of statecraft. For all of the Yes campaign's vaunted enthusiasm and positivity, it was also positive case informed by a counsel of pessimism and despair. 

This doubleness might help explain why so many of you believed this year's April Fool. With a little imagination, I find that the language of unionism comes fairly naturally to me. Despite the organised dismalism of the Better Together campaign, and the weeks and months of alienations and reversals, the old story still holds some of its magic.  It was probably psychologically revealing that my first impulse, listening to Alistair Darling's faltering defence of the Union in the dying days of the #indyref campaign, was to write an alternative script he might have read.  For all of my cold-hearted lawyering, I'm basically sentimental at heart. And I'm sometimes an emotionally disloyal separatist. 

There is a positive case for the union. It may you leave you unmoved. It may shrink in significance alongside the failures and injustices and missed opportunities of British government. But I now realise: part of me isn't entirely immune to this British poetry. That part of me felt - and feels - bereft, angry and frustrated to be disappointed again and again by the union the majority voted to preserve on the 18th of September. This is strange. People often think of Scottish nationalists as a cynical lot, always willing to believe the worst of UK institutions, always unwilling to give any British proposal the benefit of the doubt. I realise I am not one of these people. I suspect many other folk feel the same way; conflicted, ambivalent and disheartened. 

As a cynical and calculating Nat, I suppose I ought to chortle at Westminster's visionless missteps and squandered opportunities, confirmed in my pessimism, biding my time. But watching the Scotland Bill dribble through Westminster last night, the Tory majority flexing its muscles to knock back perfectly sound amendments, I found myself gripped by an irrational fury and overwhelming, acidic, sense of disappointment. The bottom has finally fallen out of the bucket. I felt flat as a pancake. 

This union could be saved and remade, but this bunch of clowns don't have the heads, hearts or guts to do it. In the intellectually slight, havering, verbally stumbling figure of Secretary of State Mundell -- the ambition and vision of this government is embodied. There is nothing there. As Kenny Farquharson tweeted last night, "Smith was the Whitehall response to the indyref. So what is the Whitehall response to Scottish general election result? There isn't one." Zero. Ziltch. Nada. Zip.

A better union is not possible, and Scottish unionists are fast becoming an abandoned tribe. And I find myself becoming, less and less, a nationalist with regrets. 

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

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

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

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

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

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

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

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

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

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

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

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

Clever, clever. 

Swinney: "Give us employment, welfare, business taxes, & equality..."

In the House of Commons this afternoon, MPs will be analysing the Scotland Bill line by line, debating the changes MPs want to see made. Like the Bill itself, you may find the list of amendments which have been tabled a wee bit difficult to follow. One of the challenges of reading the Scotland Act is its basic structure.

Remember, the Scottish devolution legislation doesn't operate on the basis of a big list of powers which Holyrood can exercise. Instead, it lists only reserved matters. Unlike a local authority, say, the Scottish Parliament is told only what it cannot do by the Scotland Act. If something is missing from Schedule 5 -- it is devolved. One consequence of this approach is that more powers can be achieved simply by deleting bits of the Scotland Act. But in this Bill, the UK government have not chosen to adopt this straightforward approach. Complex exceptions and qualifications proliferate. Even the Secretary of State seems to be struggling with the detail.

Today, the Scottish Government has also published this more accessible summary of the key additional powers they demand.  Explaining the rationales lying behind these priorities, the paper explains:

So, beyond the textual niceties of whether or not Holyrood "is" or is only "recognised" as a permanent feature of the UK constitutional order, what concrete, substantive changes is John Swinney seeking to make to the Scotland Bill? 

• enhanced control over employment policy, including the minimum wage, employment law, trade union law, health and safety regulations, and full devolution of employment support programmes.  Although the Scotland Bill proposes to devolve some aspects of employment support for disabled people and the long-term unemployed, the UK government continues to oppose the devolution of these other programmes, all of which are currently reserved matters.

• greater welfare autonomy; in particular, responsibility for children's and working age benefits; or at least further flexibilities in Universal Credit, including the power to vary the Carer's, Child and Childcare Costs elements and the Work Allowance, and particularly, benefit conditionality and sanctions.  What could this mean in practice? It would give Holyrood power to eliminate some of the harsher rules which Tory welfare reforms have introduced, including the seven day waiting period, and proliferating and unfair use of benefit sanctions which beggar, starve and freeze too many of our fellow citizens. 

• greater responsibility for business taxes, including employers' national insurance contributions and full control over corporation and capital gains tax, including the ability to vary research and development tax credits and capital allowances for business.  All of these issues are currently reserved,  As drafted, the Scotland Bill proposes to leave them so. 

• full devolved responsibility over equality policy. Under the current Bill, Westminster is proposing to continue to reserve the Equality Acts -- but to carve out further exceptions to afford Holyrood more wriggle room within them. Like much else in the Bill as drafted, this seems unnecessarily prescriptive, controlling and footery.

Do any of these proposals have a snowball's chance in hell of finding their way into the final draft of the Bill? I hae ma doots. Under the heading of employment policy, in public and in private, the Tories have blown hot and cold on the idea of liberating Holyrood to pursue its own workers policy. The Scotland Bill proposes to devolve responsibility for employment tribunals, for example, which would allow Holyrood to abolish the substantial court fees introduced by the Tories in 2013, which risk pricing workers out of justice.  

But the Labour Party are likely to remain equally unsympathetic to any proposal to devolve the minimum wage, trade union rights, or the laws which protect workers from accident, injury, discrimination and unfair treatment. They seem to believe that not only must resources be "pooled and shared" across these islands -- historic setbacks and defeats must also be shared and distributed as widely across Britain as possible. They would rather that the poor were poorer across the United Kingdom under the Conservatives, so long as the worker or the disabled person in Liverpool and Livingston are equally poor. We must build our gallows high, comrades, vote Labour, and all hang together. 

On welfare and health and safety, the Tory wobble during the Smith Commission process was widely reported in the aftermath of the report. Given that the Bill as drafted explicitly bars the Scottish Parliament from using its top-up powers to mitigate benefit sanctions, it seems unlikely that the UK government will be sympathetic to the idea of freeing Holyrood to undermine the discipline of Iain Duncan Smith's unstinting regime. 

The UK government's attitude remains possessive, unimaginative, and unambitious. The full fiscal autonomy debate remains a political sideshow, an orphan policy which it is clear cannot and will not pass the House of Commons under any circumstances.  We might as well be discussing restoring Holyrood's lost power over the penguins of Antarctica, the good it will do us. Essentially the same cabinet which kiboshed more ambitious plans during Smith continues to serve, albeit with more blue and less yellow in the ranks. Old habits die hard.

Reversal on these critical issues seems unlikely, further disappointments, almost inevitable. 

The Scotland to be regained is not a Braveheart nation

Aspiration, lionising "wealth creators", punching coal miners -- the UK Labour leadership election is in full uninspiring swing. And political triangulation is once again the order of the day. I remain leery. Before the General Election, in a piece in the Scotsman, I wrote the following:

When you adopt the discourse of your opponents, when you co-opt their vocabulary and their ideology, you may think you are working a neat political trick, triangulating your way to victory. For a time, it may appear as if you have wrong-footed your enemies, as they struggle to replace the political costumes you have stolen from them. 

Tony Blair was a past master at this. Today, the technocratic and soulless Ed Balls continues to practice these dark arts. But ultimately, triangulation is a way of ensuring that your opponent wins, whether you retain office or they boot you out. It is a recipe for an asphyxiating political consensus, for conceding your opponents’ common sense, and not for victory on something like your own ideological terms.

Power-hungry proponents of triangulation will always be able to give their cynical gambits a realist gloss, casting their opponents as self-defeating dinosaurs insisting that there must be be no compromise with the electorate. The old ghosts of Blairite "pragmatism" - Mandelson, and the great man himself -  have crept from their hiding places to dance the dans macabre on Ed Miliband's political grave. His brother grouses across the water about rediscovering "combination of economic dynamism and social justice." 

Dan Hodges and John Rentoul have been browsing the restricted section, seeking copies of the Secrets of the Darkest Art in the hope of transferring the tarnished former leader's soul into a new political body. And in Liz Kendall, these strange passions seem to have found their perfect vessel. Given her antipathy to much of its historic platform and allegiances, you've got to wonder how the Leicester MP ever found her way into the Labour Party.  And front-runner Andy Burnham seems to be pivoting the same way. 

Starkly, oddly, missing from this discussion is any reflection on how any of these candidates might help the Labour Party to "reconnect with the people" they lost in their Scottish ridings. But ironically, this national triangulation to the right which is prompting another discussion on whether Scottish Labour should borrow another set of consumes from the Scottish National Party - and make a unilateral declaration of independence from their comrades in England and Wales.  The branch office must close. It must be rebranded under new management. It must be liberated to devise its own merchandise and to make its own offers. What cures us in England will kill us in Scotland.  That is the logic, anyway. 

Scottish Labour should be untethered from the UK line and have the opportunity to pursue the distinctive Scottish Labour Scottish line pursued by patriotic Scot Jim for Scotland during his abortive leadership of the party.  The proposal has gained enthusiastic cheerleaders in the press and on the airwaves. Some are speaking up from within the Labour Party. Others are offering gratuitous advice from outside the tent. Iain MacWhirter has been fashioning thunderbolts in his Herald column, arguing that "the tsunami" of the May general election "was the clearest possible message that all political parties in Scotland now have to place Scotland first." Scottish Labour, he argues, must disaffiliate to survive.

Respectfully, this seems like total guff to me. It represents a feeble, doomed attempt at triangulation which mislocates the People's Party's travails and would fatally undermine the principled if quixotic case for the Union which Labour spent months advancing and which probably represents the Union's best last chance for survival in the longer term. As a partisan Nationalist, I suppose I ought to encourage the party to take this primrose path -- but let's consider the facts for a moment. 

The parallels Iain draws with the SDLP in Northern Ireland are inexact. As are those from the German Republic. Practically, you can see how an Independent Scottish Labour Party might manage its relations with and English and Welsh Party. But it it is nigh impossible to see how an ISLP could ever demonstrate its independence in the context of UK wide general elections. The Scottish Liberal Democrats also enjoyed a paper federation with their colleagues in England and Wales. Bugger all good it did them too. 

But more pointedly, as unseated Labour MP for Glasgow South Tom Harris argued this week, Labour "spent three years campaigning, persuading Scots of the value of a UK-wide political union - the benefits of pooling and sharing of resources." Labour UDI would blast this increasingly strained commitment to shared values to bits. In the very fabric of the party, it would cry them hokum. 

Conceding your opponents logic in pursuit of the fleeting hope of victory is almost always a demonic bargain. Labour will not win again when they persuade Scottish voters they have passed some kind of imaginary patriotism test, but only when can translate their tired rhetoric of shared values across these islands into (a) a campaign with a sense of inspiration, mission and vision with (b) a potent and authentic cultural and social basis. 

That may be impossible in the short, medium or long term. But the "Scotland first" diagnosis which preoccupies MacWhirter and his fellow travellers is a sideshow. As Robin McAlpine argued back in December, when Jim Murphy was first elected, the patriotism he espoused felt oddly dated and misplaced: 

"... his pitch to Scotland looks awfully like a Russ Abbot sketch – stand on an Irn Bru crate, wear a Scotland football jersey, eat a Tunnocks’ Teacake. So bad (I think) is his misreading of the mood in Scotland that he has taken to using the word ‘patriot’ like it is the talk of the steamie across the country. He’s even proposing to put it in the Labour Party constitution. The only times I’ve head anyone going on about being a patriot in Scotland it was always a member of the Scottish establishment pretending to be ‘au fait’ with the locals. I really do think he is misreading the mood quite badly. Those Labour have lost don’t want to be ‘more Scotch’, they want out of London-based financial corruption. So far Murphy offers them nothing but platitudes of distinctly the wrong type."

These exaggerated protestations of patriotism had an early 1990s feel to them. But worse, they reified the dubious "surge of nationalism" story which dominated much of the UK media in the aftermath of the referendum. The crass sketches of "Glasgow Man". The picture of swithering Yes voters as dull-minded, policy-illiterate, beer swigging, sport loving sentimentalists who had been taken in by national feeling-- and who could be won back by a few tired performances in a manky old football shirt and an incontinent sprinkling of Scottishness in Labour's campaign literature. 

Murphy even sought to exploit the idea that we want our politicians, like Dick Whittington, to head to London with nothing but a bindle, and to return heavy with gold pauchled from English mansions. It was a picture of crassness and misunderstanding.

I don't know about you, but I just don't recognise the electorate Murphy was trying to address. Not in the tenements of Glasgow. And not in the small town and rural communities in which I grew up. The only place I have seen such a constituency consistently conjured up is in the columns of frustrated, confused, pro-union, right-wing writers -- who feel like their sense of political gravity has deserted them in the aftermath of the 18th of September 2014. 

For Scottish Labour to premise its general election campaign on these tangled, embittered -- and I would argue -- essentially misplaced diagnoses was remarkable. Murphy hoped to ride a wave of national sentiment which does not exist. At least not with anything like the force and intensity he seemed to imagine.  The average elector is not the cybernat of hated preoccupation. Scottish Labour's problems are not due to the perceived dearth of their patriotism, but to arrogance, ideological drift, triangulation, laziness and organisational hollowness. The Scotland to be regained is not a Braveheart nation. 

Forming an independent Scottish Labour party would be a historical blunder of even bigger proportions. Let's hope they make it. 

On the People versus Alistair Carmichael

As The People Versus Carmichael crowdfunder exceeded its £60,000 target, the embattled former Secretary of State for Scotland has lodged his defences today at the Court of Session. The full text of the election petition lodged against the Orkney and Shetland MP under the Representation of the People Act was published last week. 

The petitioners' case follows precisely the lines I sketched in my first blog on the topic last month.  The central issue is not the leak. It is not Nicola, or the truth of the memo. It is the cover up. Or as Carmichael's lawyers comically put it today, his decision to "misstate his awareness of the leaked memorandum" and to mislead the viewers of Channel 4 and his own constituents about the extent of his own agency in bringing the government paper to the attention of the Telegraph.  

The petitioners argue that in denying any involvement in the leak, Carmichael made a false statement about his own personal character or conduct for the purpose of shoring up his tough general election campaign in the northern isles against the SNP. If the petitioners establish that Carmichael's dishonesty is caught by the Act, several gruesome consequences follow, the most obvious of which being a by-election in which the ousted MP cannot stand. Heather Green, a senior lecturer in law up at the University of Aberdeen, has this compelling and clear blog, putting the case for the prosecution, arguing that Carmichael may be vulnerable.

As has been pointed out by Professor Chalmers and others, however, the petitioners' case faces a range of snags and difficulties, hurdles and uncertainties. The 1983 Act has not been construed by the courts in this way before, extending to lies a candidate may spin about their own mischief and their own nature and character. On any view, this is a test case.

This is reflected in the legal papers which have been submitted on his behalf. So what is the essence of Carmichael's defence? He admits he lied. Barring a few cosmetic corrections to the transcripts of his Channel 4 interview, Carmichael largely accepts the facts as narrated by his disgruntled constituents. Interestingly, however, he denies that he authorised or knew that the Liberal Democrats had issued a statement suggesting that "the leak was not from a Liberal Democrat and that is the end of the matter." 

Carmichael also claims that Nick Clegg blabbed without reference to him. When the former Deputy Prime Minister told the media that "Alistair Carmichael's been absolutely clear of course he didn't leak them" – Carmichael's legal papers allege that no discussion had taken place between Carmichael and Clegg about the leak before the former Lib Dem leader started fending off the press and publicly exonerating his senior Scottish colleague. This seems like a remarkable proposition. 

Overall, however, Carmichael's defences are mainly of a legal rather than a factual character. In his response to the election petition, his lawyers make two main points. Firstly, they argue that the Liberal Democrat's lies were of a political, not a personal character. Under the Representation of the People Act, only lies about a candidate's personal character or conduct justify the court vacating an election result. We saw this in Watkins v Woolas. But there is other case law, limiting that kinds of lies that leave an MP vulnerable to judicial intervention.

Citing a case lodged by Scottish Tory MP Nicholas Fairbairn against the SNP in the 1970s, his lawyers argue that "the statements regarding the leaked memorandum do not relate to" Carmichael at all. But even if the court disagreed with Carmichael on that, they suggest his nationally broadcast falsehoods "do so purely inferentially and relate solely to his public or official character or conduct."

Put most simply, he is arguing that he was lying purely for political reasons as the Secretary of State for Scotland, not as the humble Mr Alistair Carmichael, prospective parliamentary candidate trying to win a tough seat in Orkney and Shetland. Like a capo di tutti capi who puts a bullet in your kidney, he alleges, it was nothing personal. And in a single bound, free. If the courts accept this argument, section 106 of the Representation of the People Act does not apply. No illegal practice. No vacated election. No by-election. And Carmichael stays on. This is a Yes, but defence.

Secondly, we have the geographical issue flagged up by Professor Aileen McHarg under my first blog. Although Carmichael's fictional account of his own conduct was broadcast on national telly, we have to remember that the election being challenged is his return as the MP for Orkney and Shetland.  Under the 1983 Act, purpose is important.  In order to kick an MP out of their seat, their lies about personal character or conduct must be "for the purpose of affecting the return of any candidate at the election". 

Although his point is not explored in much detail in the Liberal MPs skeleton arguments, he suggests that "the statements made by [Carmichael] during the interview with Channel 4 news were not made for the purpose of affecting the return of any candidate at the election." Another Yes, but defence. I may have lied about leaking like a rusty colander, but I did not do so in order to hoodwink the voters of Shetland or Orkney into returning me. 

Whether or not you find these arguments convincing, these matters are now commended to the judgement of the Election Court and Lord Eassie and Lady Paton. Whether they are politically defensible is another story. Carmichael may win on the law, but his arguments have potential to do himself remarkable damage in the court of public opinion. Watch this space. 

Davie, get your veto

In the House of Commons yesterday, the Secretary of State for Scotland, David Mundell, slapped down Pete Wishart. There were, he insisted, no vetos in the Scotland Bill:

"The Bill contains no vetoes, as he will be well aware if he has read it in detail. What it contains is mechanisms to allow two Governments to work together on matters of shared interest and application. To me, the meaning of a veto is that when someone says they want to do something, someone else has the capacity to say, “No, you can’t.” Not a single provision of the Bill relates to such a proposal."

On any fair minded, careful reading of the Scotland Bill, Mundell is being economical with the actualité here. His legislation contains several provisions which, to use his definition, give UK ministers the capacity to say, “no, you can’t” to the Scottish government.

For example, section 50 of the Bill will amend section 9 of the Energy Act to allow Scottish ministers to devise schemes for reducing fuel poverty. Hitherto, this has been a function reserved to UK ministers. But what’s this? The Scotland Bill reads as follows: "the Scottish Ministers may not make regulations unless" they have "consulted the Secretary of State about the proposed regulations," and "the Secretary of State has agreed to the regulations being made." Consultation and information sharing between governments is eminently sensible. But the Secretary of State clearly has the capacity to say, “No, you can’t” to devolved fuel poverty schemes under the Scotland Bill.

  

Nor is this an isolated example. Section 51 amends the Gas Act 1986 to give Scottish Ministers the power to set targets for the promotion of reduction in carbon emissions in Scotland. And yes you’ve guessed it: they must secure the Secretary of State’s agreement to bring the regulations into force too. And the same goes for the new devolved powers allowing Scottish Ministers to encourage reductions in home heating costs and carbon emissions. “No, you can’t”. “No, you can’t”. “No, you can’t”.  

Even if you believe, as Mundell presumably believes, that these are sensible, defensible strictures allowing the UK and Scottish governments to work harmoniously together in areas of shared concern, they clearly give the London government the whip hand. 

  

Responding to Martin Docherty yesterday, Mundell boldly concluded that "there are no vetoes in the Bill. The honourable gentleman and others will see that clearly when we scrutinise it line by line." It might have been an idea if the Secretary of State had taken the care to read his proposals, line by line, before coming to parliament to spout transparent guff about their contents.

 

Liars, and Lord Burns, and scares! (Oh, my!)

No new clods turned over and coaxed into anxiousness at the Peat Worrier today, but I do have a couple of pieces elsewhere on the web that you might be interested in. Mike over at Bella Caledonia has been scratching his head over the human rights debate recently. Can Scotland block abolition? Are the Tories plotting to pull us out of the European Convention on Human Rights? What are the key issues? He asked me to step in to provide a brisk, hopefully clear account of the key issues, where we are, and the main opportunities for resistance and devolved mischief making.  My post went up over at Bella this morning. A wee excerpt:

"Britain’s human rights debate is a mess. From the new Lord Chancellor’s office to broadcasters’ studios, from human rights defenders to the offices of the most hostile newspaper, the public debate about Human Rights Act abolition is a picture of confusion. Is the HRA written into the devolution settlement? What about Northern Ireland? Can Scotland block repeal? What about our relationship with the Strasbourg Court? Will individuals still be able to send petitions there if Westminster cuts “Labour’s” Human Rights Act out of the statute book? So let’s get back to basics and try to straighten the damn thing out. If only to save us from the perils of complacency and dangers of false pessimism."

Read the whole thing here.  In parallel, following on from yesterday's Coulson blog, I have a piece in the National this morning on Lord Burns' "no case to answer" decision in the High Court in Edinburgh, and the fallout for Tommy Sheridan and his increasingly desperate and shrill attempts to convince the world that he has been the victim of some kind of judicial coup. Another excerpt:

"ON October 11, 2010, weeks into his prosecution for perjury, Tommy Sheridan sacked his defence team. Having already dispensed with the services of Donald Findlay, the former SSP MSP gave Maggie Scott QC her jotters. Freed from his lawyers’ restraining influences, Sheridan conducted his own defence in characteristically rambunctious style. He stood accused of committing a fraud on the court, lying in order to win £200,000 in damages from the now-defunct News of the World newspaper. Against the backdrop of the gathering storm of the phone-hacking scandal, Sheridan promptly supplemented his witness list with a number of former News International employees, including the Prime Minister’s serving director of communications, Andy Coulson."

Find the whole article here.

On perjury...

Perjury in Scots law is not lying under oath. Or not only lying under oath. I suspect many folk will be goggling at the news that Andy Coulson has been acquitted of giving perjured evidence in the case of Her Majesty's Advocate v Sheridan. The judge upheld a "no case to answer" submission by the defence on Monday. The news has been embargoed to allow the Crown to appeal against this decision. They declined to do so. Some supporters of Mr Sheridan took the opportunity to get their retaliation in first, under the veil of the Contempt of Court Act. Today, the jury was sent home without giving a verdict. Coulson is free.

Lord Burns held that Coulson's evidence was not relevant to the central issues in the Sheridan trial.  The judicial authorities have published the judge's explanation to the jury, and a longer note of reasons, explaining the decision. 

"After  two  days  of  legal  submissions  last  week  and  having  considered  the  matter,  I  decided  that  the  crown  had  not  led  sufficient   evidence   to   satisfy   me   that   the   allegedly   false  evidence was relevant to proof of the charge in Mr Sheridan’s  trial or to Mr Coulson’s credibility at that trial." 

As Lord Burns explains today, the lie must be relevant, going to the pith and substance of the earlier trial. And establishing that Coulson's dishonest testimony was relevant to the Sheridan case always looked a bit tricky. As far back as 2012, it was a point I made, and a point much more fully explored by the late Paul McConville on his Random Thoughts on Scots Law blog.  Folk now crying "conspiracy" should bear that in mind. This isn't corruption, it is the law. It isn't an expensive legal trick or a loophole. It is a point which any decent defence lawyer would make.

As this blog has consistently pointed out, against considerable misinformation encouraged by the ex MSP and his sympathisers, Tommy Sheridan was not convicted on the evidence of Mr Coulson.  The Crown did not rely on his testimony. Indeed, they disowned it. Coulson was a defence witness, with no knowledge of the key allegations made in the indictment against Mr Sheridan.

Go back to the charge sheet. Even if Coulson lied about his knowledge of phone hacking, how is this relevant to an indictment, alleging that you had attended a Mancunian knocking shop for a companionable evening, had a string of affairs, told your former party comrades about doing so, and lied under oath, in court, in dishonest pursuit of a significant sum of money, about your sojourning, your womenising and your confessions?

Had Mr Sheridan not sacked his lawyers, and conducted the case himself, Coulson would likely not have been called to give evidence. But he did give evidence. And on the evidence, Andy Coulson may well have lied under oath in the High Court about his knowledge of phone hacking in the News of the World. But mark this well: Coulson has not been acquitted of lying under oath today, but of perjury. As Lord Burns concluded today, "not every lie amounts to perjury." Not under the law of Scotland. A strange conclusion to a long case? An outcome which is liable to hold the common law crime of perjury up to public ridicule? Did the Crown screw up in failing to lead sufficient evidence about the relevance of Coulson's testimony?

Expect these questions to grip the media in the coming hours and days.