Be critical, have patience

If you are serious about securing Scottish independence, beware of passion. Beware of the unselfcritical and the impatient. Beware projection. Beware the thought that other people think as you think. Be suspicious of your motives. Test your claims. Follow the evidence. 

Beware those who see the defeat of the Yes campaign as entirely the fault of other people. Beware those who point an accusing finger only at Project Fear and a biased media, and who have nothing to say about where Yes Scotland and the White Paper went wrong. Beware those who can't begin to understand why people voted No. Beware those who see the Scots as credulous, taken in, but now smarting from buyer's remorse. Beware those who believe it was only the Vow what won it. 

Beware of those who behave like a drowning man, scrabbling for something -- anything -- to justify a second referendum. Beware of those who think they speak for a pro-indy majority which marches only in their imaginations.  Beware of those who still refuse to recognise that only a single poll in the entire campaign ever put Yes - very marginally - ahead. Beware those who will not see that no poll has shown a sustained or substantial majority for independence since. If you seriously thought we were going to carry the day on the 18th of September, beware your own judgement. Have a healthy skepticism. Question the limits of your social circle. Learn its lessons. 

Beware the activists who told you the Yes vote in their constituencies was all sewn up, and who stood, crestfallen, when dawn rose on the 19th of September, with their local campaign trailing miles behind. Beware those living in areas which voted Yes, who seem indifferent to the fact that the majority of the country did not. Beware those whose enthusiasm for a second indyref seems unconnected to any evidence that the campaign is actually winnable. 

Beware those who see the 2015 election result as firing another starter's gun. Beware those who see the election of 56 SNP MPs as a referendum proxy. Beware those indifferent to the 160,000 lost votes separating the 2014 and 2015 results. Beware the self-deceptive logic of "one last heave". Beware those who want another referendum to recall a feeling, to recall hope, to recall purpose, but with no analysis of what went wrong, or what has changed. Beware old men in a hurry.

If you are serious about securing Scottish independence, you must beware all these things. If you are serious about accomplishing this task, you must beware squandering our best, last chance to realise it. You must have patience. A second referendum cannot be held to make people feel better. Too many generations of my family, and many families in this country, have campaigned for this old idea for it to be consigned under the sod forever in a doomed spasm of feeling unsupported by any analysis. 

There's no point in igniting a false hope - only to extinguish it forever. There is nothing noble about destroying the cause you care about through soft-headedness. I can understand your anger. I can understand your frustrations. I can understand the mounting despair you feel at this majority Tory government and its plans for the country. But sentimentality is self-indulgence. A second referendum cannot be for the true believers who are already on side, but must speak to those whose minds have changed, for those who can be persuaded. It cannot be an act of sheer frustration -- however understandable that feeling may be.  

Nobody has even begun to explain to me what has changed since the autumn of last year to transform disaster into triumph. Nobody has explained how the generational gap has or could be addressed. Nobody has explained to me how the sceptical people of Clackmannanshire and Aberdeenshire and Inverness and Argyll have been won over. Nobody has produced, or can produce, any evidence of any kind that there has been a decisive shift in constitutional opinion. 

My only operating principle here is this: if another independence referendum is to be held, it must be won. A second referendum must not be held unless it is clear that it is winnable. By all means - let's have a reasoned argument about strategy. About what to be about in the meanwhile. Through the encircling political gloom - there are reasons to be cheerful. The idea of Scottish independence is mainstream for the first time since 1707. The 2014 referendum campaign has not stabilised the Union. It has not provided a decisive answer to Scotland's separatists. The Smith Commission compromise and Mundell's Scotland Bill look incapable of doing so. The No campaign has not persuaded Scots that we are "better together" for the next ten years, or the next twenty or thirty years. 

But cool your jets. It is time for hard heads. Time for reflection on what went right and what went wrong last September. My plea to you is this. Always demand evidence. Hold even the most sincere, the most touching and deeply-held emotional appeals in suspicion.  Be critical. And always, always -- have patience.

The light on the hill

While Andrew Wilson has been away on his summer holidays, the folk at the Scotland on Sunday asked me to fill in a couple of columns. Last week I wrote about feeling a bit frazzled by Scottish politics, and the unremitting pace of stuff since the referendum.

The aftermath. The Nationalist retrenchment. The Smith Commission. The general election campaign. The victory. The aftermath. The Scotland Bill.  I am a summer hermit crab - an introvert by any other name - who is feeling a little frayed, with no time left to stand, and stare, and reflect on all that has changed in the last twelve months. It has been, as one of Alan Bennett's history boys had it, "just one fuckin' thing after another."

The theme also came up at the Traverse in Edinburgh, at playwright David Greig's Two Minute Manifestos.  The primary guests were Olympian Susan Egelstaff and Edinburgh poet, Ron Butlin. I joined the Guardian's Libby Brooks on the cynical pundit's sofa. The Two Minute Manifesto team have recorded the aftermath in podcast form, available here.

Having looked backwards last week, today, in my final fill-in column in the Scotland on Sunday, I look forwards - towards the next Holyrood election and the tone and manifesto on which Nicola Sturgeon's government will fight for re-election. An excerpt:

"ONLY a major calamity or unforeseen scandal can now prevent Nicola Sturgeon from seizing a second term. Only a significant revival in Scottish Labour’s fortunes can deprive her government of its majority in Holyrood, and Labour stands a snowball’s chance in hell of securing that revival. Sitting pretty on an overwhelming lead, under a popular leader, eight years since Jack McConnell lost power by a single seat, the nationalists have never looked stronger, or their opponents weaker. 

I’ve yet to meet the Labour activist who has any stomach for this fight. The Tories are chipper but resigned to modest achievements. The Greens are buoyant but aware of their limitations. The capitulation is general. Yet while the politics seem all sewn up, awkward policy questions are beginning to mount up for Sturgeon’s administration in health, education, and policing. Now more than ever, the triumphant SNP needs to cultivate its critical friends."

Read the full piece here.

Universal, meet particular

"Politics is sometimes hard. You are right in front of me." The German Chancellor's viral encounter with a young Palestinian woman likely to be is a disturbing, pregnant piece of telly. I've been trying to work out why it has been preying on my mind today. 

Angela Merkel has been criticised for being cold in her response to the young lady's gut-wrenchingly sad question about the precariousness of life in Germany as a refugee without leave to remain. I don't think this is fair. Merkel is no Bill Clinton. She doesn't have the former U.S. president's extrovert powers to project sympathy to an audience. She is direct, categorical, sympathetic -- but unyielding. And it is this sympathy, I think, which makes the encounter so uncomfortable. The allegation of coldness actually obscures what makes the exchange difficult to watch.

If Merkel had been stern, and glacial, and had rebuffed the child's cry of distress unmoved, we might think of her as inhumane.  But to be empathetic to the individual, and yet immoveable on the rules which will destroy their lives - that's one of the most unsettling characteristics of a legalistic, rule-bound way of viewing the world. 

It is a problem of universals and particulars. We meet this in law all the time, and in teaching too. The likeable student who screws up their final degree exams. The charismatic individual who finds themselves on the duff end of the law, whose sufferings you feel for. I've often suspected that being strung up by a sour, hanging judge is in some sense less disturbing than by the quiet, polite, compassionate jurist who doesn't want you to die but diligently does their duty. They feel twinges of mercy, but set it aside.

Mhairi Black's recent Commons début offers another stinging example of the clash of universals and particulars. What seems reasonable in the abstract in a Whitehall Work and Pensions office, drafting sanctions rules, becomes heartbreaking and unendurable when you encounter the frail, broken individual who suffers unjustly under their effects.  You are right in front of me.

George Orwell gave another memorable example, in Looking Back on the Spanish War. He thought the vignette inconsequential. I'm not so sure. Those warring impulses, between universal justice and mercy to the individual, right in front of you -- they run right through our politics and society, like blood through our veins. 

Early one morning another man and I had gone out to snipe at the Fascists in the trenches outside Huesca. Their line and ours here lay three hundred yards apart, at which range our aged rifles would not shoot accurately, but by sneaking out to a spot about a hundred yards from the Fascist trench you might, if you were lucky, get a shot at someone through a gap in the parapet. 

Unfortunately the ground between was a flat beet field with no cover except a few ditches, and it was necessary to go out while it was still-dark and return soon after dawn, before the light became too good. This time no Fascists appeared, and we stayed too long and were caught by the dawn. We were in a ditch, but behind us were two hundred yards of flat ground with hardly enough cover for a rabbit. We were still trying to nerve ourselves to make a dash for it when there was an uproar and a blowing of whistles in the Fascist trench. Some of our aeroplanes were coming over. 

At this moment, a man presumably carrying a message to an officer, jumped out of the trench and ran along the top of the parapet in full view. He was half-dressed and was holding up his trousers with both hands as he ran. I refrained from shooting at him. It is true that I am a poor shot and unlikely to hit a running man at a hundred yards, and also that I was thinking chiefly about getting back to our trench while the Fascists had their attention fixed on the aeroplanes. 

Still, I did not shoot partly because of that detail about the trousers. I had come here to shoot at ‘Fascists’; but a man who is holding up his trousers isn't a ‘Fascist’, he is visibly a fellow-creature, similar to yourself, and you don't feel like shooting at him. What does this incident demonstrate? Nothing very much, because it is the kind of thing that happens all the time in all wars.

Will the SNP's foxhunting gambit actually strengthen EVEL?

View halloo! Last night, the SNP broke cover to indicate that they would vote against this proposal from the Tory government on relaxing the rules on hunting with hounds under the Hunting Act of 2004. Predictably enough, the contents of the proposal have been widely misreported. In Scotland, it is legal to gallop after foxes with a baying mob of hounds, but the creature itself must be shot dead rather than being torn to bits by its pursuers. In England, the rules are actually tighter. It is illegal to hunt wild animals with dogs, unless you fall within one or more exemptions. 

Under the current English rules, you can only use two dogs to flush animals from their cover -- no noisy legion of hounds allowed. Today's order would have relaxed this rule, allowing an "appropriate" number of dogs to be used to do so, given the terrain and the circumstances, to chase the creatures from cover. It would not have lifted the ban on using hounds to kill foxes in England - or to kill any of the other fluffy woodland folk covered by the laws.

After the Nationalist volte-face, anticipating defeat, this afternoon's vote has been dropped by government whips. This outcome will surely colour the debate on Chris Grayling's "English votes for English laws" proposals. Indeed, it may well have the effect of tossing kerosene onto the camp fire, as Alex Massie argued last night. But one fact has not been widely noticed or understood here: even if Grayling's EVEL standing orders had been in force today, the Nats would still have been able to vote down these fox-hunting proposals. 

Burrow down into the detail. There are a number of aspects to the EVEL proposals, but the most important is the idea of an English veto. On Bills and statutory orders which affect only England, the government wants to introduce an additional stage to parliamentary procedure.  It all risks sounding a bit arcane and impenetrable. But consider this concrete example. 

Say a hypothetical Labour government enjoyed a majority in the Commons, but only by dint of winning 56 of Scotland's 59 MPs. The majority of MPs returned for English constituencies were Tories. Say this Labour government proposed to abolish free schools in England, over the Conservative Party's profound objections. Under Grayling's new rules, if the Speaker certified this as an England only issue, MPs representing English constituencies would take an additional vote on the government's plan to abolish free schools. 

If the English majority supported the idea, MPs from all parts of Britain would then participate in the final vote on whether to accept or reject the plans. But if the majority of English MPs did not support the proposals, they fail. Notice: the attitude of English MPs is decisive only in a negative sense. They can veto England-only laws they don't like, but they cannot insist that England-only laws they approve of are passed.  This is how the plans are intended to operate. All MPs, from every corner of the United Kingdom, will retain the last word on whether England-only laws reach the statute book.  

But today's non-vote on changes to the Hunting Act reveals an uncomfortable paradox in the Tory plans: while an English veto can kill a disliked proposal, it can't save one that has English-majority support but pan-UK dissent. If Grayling's EVEL rules had been in force today, even if there was an English majority for these fox-hunting changes, it wouldn't have got its way. Under the government's standing orders, the issue would still have been put to the whole House, and if the whole House didn't care for hunting with hounds, the proposals would still fall. 

There is an important lesson here. The formulation of the government's EVEL plans have been resolutely (and unhelpfully) backward-looking. They have been obsessed by the old rebellions of the Blair and Brown years on foundation hospitals and tuition fees, where Labour Bills passed with Scottish support over English dissent. 

But the political landscape has changed so radically - the old Blair and Brown model of constitutional injustice looks seriously outmoded. We have a Tory majority government in charge of the legislative agenda. The idea of a Labour government propped up by Scottish Labour MPs now looks more comical than optimistic. It is almost impossible to see any circumstances in the near future where England-only legislation would or could passed over English objections using the votes of Scottish MPs. The veto is worthless.

But with a wafer-thin Tory majority, an awkward squad of Conservative MPs, and an opposition willing to exploit your weaknesses, it is eminently foreseeable, time and again in this parliament, that there may be a narrow English majority for government proposals, but no UK majority. And under the current iteration of EVEL, the English majority would have to lump it. Given the pitch of feeling around this in the palace of Westminster, I doubt they'll be minded to endure this perceived injustice for long. Today's setback for the Tories on mangling woodland folk has shone an unyielding light on the feebleness of the government's EVEL plans for all the world to see. It is just surprising to discover that it is SNP parliamentarians who are lighting the lamps.

Despite all of the outrage from Alistair Carmichael, and Labour and Nationalist MPs about the pernicious impact of EVEL, in the grand scheme of things, these are milquetoast proposals from the Tories. If I was a English Conservative MP, keen to answer my constituents' victim fantasies and misplaced sense of grievance against Scottish interference -- Grayling's EVEL plans won't go nearly far enough. They wouldn't let me "speak for England", in John Redwood's phrase.

Which invites a series of uncomfortable questions for those sympathetic to what the Scottish Nationalist MPs have done today. Will their actions actually embolden the Tories to go further to achieve what they regard as "fairness for England"? Will this non-vote have paved the way for even further, much more substantial restrictions, to the voting rights of Scottish MPs? Was the epic trolling, the cynical and unprincipled tit for Scotland Bill tat, really worth it?

Does EVEL breach the Acts of Union?

Like many powerful, symbolic documents, almost nobody ever reads the Acts of Union. Magna Carta, "the constitution" in America -- the myth often fails to withstand an encounter with the text. I've had occasion over the past couple of days to revisit Great Britain's founding statute after this case from Lord Gray began circulating amongst SNP supporters on social media. You can understand why. If it had any substance, it might look like constitutional dynamite which could be deployed against David Cameron's "English votes for English laws" proposals. The circulator concluded enthusiastically:

"I found the 1953 ruling someone pointed out earlier and it is very interesting indeed. The articles of union say that members of parliament returned by Scottish constituencies cannot be excluded from the House of Commons. This means excluded from voting on any legislation This is unalterable. No government can change it. It would appear that if a government attempts to do this the union is dissolved with immediate effect."

I am sorry to report that not only is this dead wrong on almost every point -- but the logic of the argument being deployed here is unintentionally surreal. First, the missing background. This isn't a "ruling" and nor is it from 1953. It is a partisan legal paper written by Richard Keen - who has just been appointed the Tory government's law officer for Scotland. It was written for Lord Gray in 1998 against the backdrop of the first Blair government's proposals to strip hereditary peers out of the House of Lords. Gray, a Scottish peer, wasn't a happy bunny at the loss of his family's privileges. His paper argues that it would violate the Act of Union to exclude Scottish hereditaries from the House of Lords. Article XXII provides:

"That by virtue of this Treaty, Of the Peers of Scotland at the time of the Union 16 shall be the number to Sit and Vote in the House of Lords, and 45 the number of the Representatives of Scotland in the House of Commons of the Parliament of Great Britain."

If Gray's case was right, and the Union provisions could not be amended "for all time coming" -- then the SNP's long term commitment to House of Lords repeal would also represent an outrageous breach with the letter of the Acts of Union. On this logic, Pete Wishart ought to be campaigning for the Scots lords in ermine to be restated. I don't know about you, but this doesn't particularly appeal to me.

And if we're going to be strict about it, we've got another problem. By the letter of the Articles, somebody is going to have to tell the 56 SNP MPs that the Union specifies for all time coming that there should only be 45 Scottish MPs, and at least eleven of them are going to have to seek employment elsewhere.  Oh, and there's some more bad news about that independence referendum we all toiled away at back in September. The very first Article of the Acts of 1706 and 1707 reads as follows:

"That the Two Kingdoms of Scotland and England, shall upon the 1st May next ensuing the date hereof, and forever after, be United into One Kingdom."

I doubt many Scottish nationalists would support that provision being inviolate. And it'll make republicans amongst us uncomfortable to learn that their democratic ambitions are to remain unconstitutional in our eternal kingdom until the end of time or the heat death of the universe -- just because a small cadre of elite opinion in the early 1700s said so. Considering Lord Gray's case, the House of Lords Privileges Committee, which included several judges, came to a similar conclusion. They rejected Gray's argument concluding that Article XXII of the treaty wouldn't be breached by giving him and his colleagues of the blood their marching orders. Indeed, this provision of the 1706 and 1707 Acts had already been repealed by Westminster some years earlier, in 1993 and 1964 respectively.  And damn right too.

But even if you disagree with this interpretation - it isn't obvious that any provision of the Acts of Union are relevant to the EVEL proposals at all. Digging further into the text, Article 23 has a good deal to say about the privileges of the sixteen Scottish peers in the House of Lords, but is mum on the rights MPs could expect to exercise in the House of Commons. The problems with EVEL are contemporary problems, and not ones which can usefully be addressed through the lens of a centuries old mercantile charter. We are at risk of being in the absurd position of pushing arcane constitutional arguments which would require sixteen Scotch lords to sit in Westminster, but which do absolutely nothing to enhance the argument about the status of Scottish MPs. 

Legal nationalism in Scotland is an interesting tradition, but despite my political inclinations, not one I have ever felt a huge amount of sympathy for. Colin Kidd's (2008) Union and Unionisms has an interesting discussion of evolving legal and political ideas since 1707 about whether the Acts of the Union are entrenched and still represent fundamental law in the UK. Lord President Cooper's celebrated comments in the (1953) case of MacCormick v Lord Advocate are much quoted. The Union settlement clearly preserved things which have been seen as pillars of Scottish identity since - the church, the distinct order of law. 

But for myself, I have never understood the place of the Acts of Union in that tradition. I'm indisposed to treat a commercial deal about salt and beer and window taxes with much reverence. Indeed, this is a paradoxical seam in the wider tapestry of Scottish nationalism. For many Scottish nationalists, the Union was "bought and sold for English gold" by a parcel of Scottish rogues -- but the agreement those "rogues" struck is today invoked as if it was Moses and the Prophets, in pious tones. On any reckoning, this is a perplexing combination of historical ideas to hold. This is a crooked deal, and we insist that it must be enforced to the letter and forever. 

UK Supreme Court justice, Lord Sumption, began a recent lecture on Magna Carta on provocative form. "It is", he said, "impossible to say anything new about Magna Carta, unless you say something mad. In fact, even if you say something mad, the likelihood is that it will have been said before, probably quite recently." The same often goes for those other mythic texts in the UK and Scottish constitutional tradition, like the rampantly anti-catholic 1689 Claim of Right or the Scottish feudal oligarchy envisaged by the declaration of Arbroath.  Much of the contemporary force of these texts seems to derive from ripping them out of context and attributing to them democratic virtues and aspirations which would have seemed alien to the very people who drafted them. It is a conclusion to madden the lawyer, but the cultural significance of these documents is not exhausted by what they do or do not actually say.

Detached from their context, and their texts, these declarations and charters float freely in the popular constitutional imagination. Sometimes, they are used to promote a more democratic vision of the country's best traditions; sometimes for more reactionary purposes. In America, grown men don tricorn hats and 18th century militiamen uniforms, to argue that their constitution is betrayed by federal healthcare reforms. On this side of the pond, Tories are even now invoking Magna Carta neo-mediaevalism to justify hacking back the contemporary rights which citizens enjoy. And Scottish nationalists are appealing to the ancient and perpetual rights of Scottish peers to try to resist the Conservative solution to the very modern West Lothian question.

Our abiding passion for old documents and ancient sources of authority are fascinating -- but often strange. Very strange.

Alistair Carmichael: The Man Who Saved the HRA?

Alistair Carmichael is clearly a lazy thinker. The former Secretary of State for Scotland secured a debate on the Human Rights Act in Westminster Hall this Tuesday. During his remarks, the former solicitor held forth at length on the devolution implications of repeal - and got his law almost entirely wrong: muddle, guddle and confusion. 

He told MPs that the Human Rights Act is "hardwired into the devolution settlements in Scotland, Wales and Northern Ireland." It isn't. He claimed that "their Acts must be compatible with" the Human Rights Act. They don't.  He concluded "it has already been established that if this is to change, at least for the Scottish Parliament a legislative consent motion would be required in accordance with the Sewel convention." He clearly wasn't listening, when this claim was directly contradicted by government ministers Michael Gove and Therese Coffey. 

Happily, SNP's Joanna Cherry was rather more on the ball, echoing the analysis this blog has been pushing for some time. The Edinburgh South West MP set out the terrain of potential conflict in clear, sharp detail in her speech:

"The SNP has been deeply concerned by recent statements from Ministers that suggest that they believe that the UK Government could repeal the Human Rights Act without reference to the Scottish Parliament. They argue that the Sewel convention would not be engaged because human rights are a reserved matter. That is wrong and legally illiterate. Human rights are not a reserved matter and are not listed as such in schedule 5 to the Scotland Act 1998. Schedule 4 to the Scotland Act protects the Human Rights Act against modification by the Scottish Parliament, but human rights per se are not a reserved matter. It was part of Donald Dewar’s scheme that all matters would be devolved unless they were specifically reserved. Human rights are not specifically reserved. 

Moreover, human rights are written into the Scotland Act. The European convention on human rights is entrenched in the Act through section 29(2)(d), which provides that an Act of the Scottish Parliament that is incompatible with the ECHR is actually outwith the legislative competence of the Scottish Parliament. Section 57(2) states: 

“A member of the Scottish Executive has no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with” 

the ECHR. It is therefore incorrect to say that human rights are a reserved matter. They are devolved and I urge the Minister to think carefully about the statements made by his colleagues to the effect that the Sewel convention would not be engaged.

 

The Prime Minister has repeatedly spoken of a “respect” agenda, and I stand here as one of 56 SNP Members elected at the general election. I urge the Government to consider their respect agenda, to return to the Scotland Act 1998 and to get their lawyers to look at it carefully. They will find that human rights are not a reserved matter and are devolved, and that the Human Rights Act should not be repealed or otherwise interfered with by the British Parliament without first seeking the consent of the Scottish Parliament. 

I want to make it clear, however, that the SNP would seek to prevent the repeal of the Human Rights Act for the whole United Kingdom. It is a fundamental issue and we want the Human Rights Act to remain on the statute book for the entire UK because, as the right hon. and learned Member for Beaconsfield said, it has brought huge benefit in terms of the accessibility of rights for people in this country."

The minister in the debate, Dominic Raab, failed to respond to any of these points. Carmichael's legal blundering isn't just innocent confusion over a technical topic -- even if we might expect better from a University of Aberdeen LLB. His fudging and his mudging can only help to disorientate opponents of Tory repeal plans, strengthening the UK government's hand, and diverting our attention away from viable stratagems of resistance. I'm sure it isn't deliberate mischief. It's just the usual incompetence and sloth. But if Carmichael is serious about defending the Act from the Tory axe, he's going to have to buck up his ideas -  or take his bungling elsewhere.