The sentimental European

Purists hate the politics of the big coalition. This much seems uncontroversial. Divide a country - any country - of sufficient bigness, richness and complexity into two massive tribes, and you form uncomfortable, often incoherent coalitions. You quickly find folk vote your way for reasons you disagree with, and worse, which you disrespect. You find people you think of as your political fellow travellers voting for the other side, because some detail -- piffling to you -- torments them, some wrinkle in their soul, a different perspective. 

Purists also - in their bones - hate the cynicism of political campaigns.  It isn't my reasons for believing in Brexit, or supporting our continued membership of the EU that matters. Not to the instrumental activist. What matters is the arguments and reasons which might convince you, rather than those which convince me. And if I happen to hve an unpopular ideosyncratic view, unless I can bracket my own sentiments, unless there are a lot of people who share my outlook, I can't be an asset to your cause.

On the 18th of September 2014, I spent much of the day standing outside a kirk near Queens Park, Glasgow. The area was Yes inclined. It was a pleasant -- but doomed -- way to spend the day.  I'll never forget the woman who left the polling station, buoyant. "If we vote Yes, we automatically leave the EU" she said, having swallowed the Better Together line, hook and sinker. When she bounced out into the balmy afternoon, she had cast her Yes ballot. There was no use remonstrating, no use suggesting she'd misread the arguments of reached a - truly perverse - conclusion based on the two campaigns. I waved, dumbly, as she toddled down the street, having put up token resistance to her analysis. It wasn't worth it: her ballot was in my pile.

The EU referendum has brought out the awkwardness of the big coalition in spades. Pro-European Scottish Nationalists have watched a scorched earth economic case, orchestrated by the same folk in the Remain campaign who assured us that Scottish independence would result in an economic crucifixion. It has not been compelling. On the other side, eccentric - perhaps - but good-hearted, unbigoted leave campaigners have found themselves aligned with an often odious campaign, with which - I am sure - many would rather having nothing to do in any other circumstances. As I say: big coalition politics is difficult. It is often uncomfortable. It often feels a little dishonourable. And it makes for strange, incoherent coalitions. 

It is important to understand and scrutinise both campaigns - and both arguments - in this light. Different arguments will convince different people. There is no necessary hypocrisy in this. I would encourage you to vote Remain tomorrow. But the reasons which persuade me may not be reasons which persuade you. Some other advocate -- on either side -- may more effectively speak to your concerns than I can. Heed them. Follow your own best judgment. We are large. This is a country of several million people. Domestic politics is still diverging in the home nations. We contain multitudes.  

But speaking solely for myself: the European ideal still seems to me a noble one. The academic world is full of European citizens. I am surrounded by folk who live here, love here, work here, labour here, raise and educate their children here, because of the free movement of people. In the 2014 referendum, European citizens voted on the constitutional future of Scotland because -- at its most simple -- they are part of us. They choose to live here. They persevere here. They have their pleasures and their pains here, their friends and enemies. They have sparkling evenings, and dull times, they share laughter and kisses and rows and sorrows. They do precisely what the rest of us do. You may say this is sentimental. Very well: it is sentimental. But quietly, undemonstratively, this decision was one of the noblest things the SNP has done in office.

I cannot look at these people in the eye tomorrow - these colleagues, these allies, these friends - and vote to Leave the European Union. Unlike Jim Sillars, I cannot and I will not prosecute my indyref feuds with the European Commission and European governments by turning a cold shoulder on my comrades, who are part of us, who live with us, whose children are our friend's children, who elaborate Scotland and Britain's still largely monochrome tapestry.

They are immigrants and emigrants, just as Scots have traipsed across this globe for centuries, inflicting their lousy patter on the peoples of the world on the banks of the Hudson, in the scorching territories of Australia. They are people -- people who I have watched suffer, largely in silence, through this referendum. Tomorrow too, they will be silent in the ballot boxes, their votes missing. But one of my Dutch friends, who has lived in Britain for fifteen years, put it horribly starkly. "I will never forget the headlines. Stay or go, I will never look at you the same way again."

I believe that Scotland has a European destiny, inside the UK, or outside of it. For me, this is existential. Despite the slurs and the sallies, the wits and the wags and the denigrators, ours is not and has never been a separatist movement. I have no interest in narrow nationalism. Too often too isolated in this debate, the leadership of the SNP has forthrightly made the case for immigration, uncowed, unbend, courageously. They are to be commended. Alex Salmond recently put it well in the Oxford Union. We know being involved in mankind is nothing to fear. We know that the lean sphere of sovereignty is a boyhood fantasy. We aren't afraid of negotiating, even negotiating hard-headedly, in our collective interest. We abjure easy solutions to complex problems. 

Confident people -- truly confident countries -- do not hirple through their collective lives, cramped and shivering. They do not go into the darkness of the future with fear. They are emboldened by their own best traditions. They are fierce friends. They don't cringe.  They see opportunities, more often than they tremble. As a Scottish Nationalist, I am soaked in pessimism about the United Kingdom. This much you know. But this is a land with a better tradition which tomorrow will be weighed in the balance. I have no confidence about what the result might be -- but I know this. 

Despite my long-standing pessimism about the UK, I'll be exiled to the doldrums of unhappiness on Friday, if Britain crashes out of the European Union. The bottom will - once again - be speared out of what I thought was a bottomless bucket of disappointment with Britain. This may seem perverse. You are right. The force of those multitudes again, I suppose. But in my bones, I'm an optimistic soul. I remain a Scottish nationalist with regrets, still somehow stubbornly attached to the possibility of a better Britain. It will be a painful to discover my most harsh suspicions about this union are true. I'm not trying to be cute. I will be horribly unhappy to be confirmed in my prejudices.

Tomorrow is one of those days in our history which will try Britain's soul. It is difficult, even to begin to calculate the consequences of a vote to leave. Yet I cast my ballot, more in hope than expectation. And I cast it for my friends, sentimentally perhaps, but unrepentantly, a European.

What would Brexit mean for devolution?

As we hirple towards the EU referendum finish line, I'm often asked a question. What would a Brexit vote mean for devolution? If we crash out of the European Union, would Holyrood - in a trice - become more powerful? The Lord Chancellor, Michael Gove, toyed with this kind of rhetoric last week, claiming that unprecedented immigration powers would be devolved to the Scottish Parliament, in the event of Brexit.  If you'll believe that -- you'll believe anything. Disembark from the banana boat which brought you up the Clyde. Check the back of your head for buttons immediately. 

But a similar argument was made back in February by Drew Scott of the University of Edinburgh.  Scott highlighted that, at present, a number of devolved issues - including environment, agriculture, fisheries and social policy - are guided by EU law. He suggested that "if the UK leaves the EU, then by default these powers will come back to the Scottish Parliament, not to the UK."

Is he right or wrong? And if so, why so? Show us your working. Let's start with the short version: for the main part, no, it isn't true. A Brexit vote on Thursday - in and of itself - does next to nothing to strengthen the powers of the Scottish Parliament. Nowt. Zip. Nada. Now - as always - we are subject to the whims of the majority in the House of Commons, which now - as always - ultimately decides what powers Holyrood will and will not be trusted with. Now - as always - this will be decided by the UK majority in Westminster. 

So how does it work? Here, things get a wee bit more complicated. Under section 29 of the Scotland Act, Holyrood's legislation must comply with EU law. That's why, for example, the Scottish Government's minimum alcohol policy could be challenged. Whisky manufacturers argue that it represents an unjustifiable interference in Europe's common market in liquor, indirectly discriminating against European companies, able to sluice out wine on the cheap. The case continues.

But that's not the only thing which limits Holyrood's powers in fields dominated by pan-European regulation.  The Scotland Act doesn't list all the issues which the Scottish Parliament has control over. Instead, the legislation knocks that logic on its head. It lists only those topics which Holyrood can't legislate about. You find all this in Schedule 5. We call these "reserved matters" - and if you take a look at them, you'll see that in most of the areas identified by Professor Scott, there would be limited or no "automatic" strengthening of Holyrood at all, even if EU law was disapplied.  

Take the issue of fishing, for example -- a hot button. Under C6 of Schedule 5, the "regulation of sea fishing outside the Scottish zone (except in relation to Scottish fishing boats)" is a reserved matter.  It will remain so unless and until Westminster removes this restriction. The same goes for many other areas of policy. With some limited exceptions, for example, equal opportunities remains reserved, despite agitation for its devolution in the last Scotland Bill. Head H reserves employment law to Westminster, including the minimum wage, trade union legislation, the Employment Rights Act, and so on. MPs decided that these should continue to be decided by MPs -- despite calls for their devolution as recently as last year.  

Professor Scott's point is more convincing when it comes to agriculture and environmental policy -- neither of which feature prominently in the list of reserved matters. But competency without cash is a paper power. Will future UK governments match the agricultural subsidies which the EU Common Agricultural Policy has used to support the industry of our farmers? Will an austerity government become big rural spenders? Who knows?

The idea that you can  - in a trice - "automatically" empower Holyrood across all these categories of governmental policy by leaving the EU is a naive fantasy. And that, before we get into the regulatory harmonisation which might be necessary if a weakened Brexit Britain is to cut the sort of trade deals with the rest of the bloc.  Your guess is as good as mine about what the majority in Westminster would during during a post-Brexit interregnum.  I don't know about you, but as a Scots lawyer, concerned with the powers of devolved parliaments and assemblies, I don't find the idea of "restoring" Westminster sovereignty over these fields terrifically reassuring. It is the usual grisly rhetorical prelude, anticipating bitter medicine. Pass the catheter. 

The only folk you can be sure you are empowering is the Conservative majority in the House of Commons. And despite their infighting, their backbiting and their bitter internal tribalism -- there remains precisely no indication they are on course to lose the next general election, or the next.  Nor is there any indication that Mr Cameron and his allies -- or Mr Johnson and his allies -- have the slightest interest in allowing Scotland to diverge from Westminster on workers' rights, equality, or immigration. Don't take my word for it. Just cast your mind back to the debates and votes on the last Scotland Bill, when Tory MPs trooped biddably though the lobbies again and again to shoot down  substantive SNP amendments. 

I don't know about you -- but this seems like a remarkably powerless, unreliable, risky way of "taking back control" over these areas of social policy to me. 

Now, you may well believe that after Brexit, everything will be different. You may believe that with Brexit, everything is possible. And in the most abstract, theoretical way -- for sure. But a sober worldly politics can't let itself be dazzled and distracted by abstract possibilities. Let's look at the probable, as well as the possible. Let's be tutored by our own experiences. Let's consider the social forces, actually in play. Let's contemplate who is actually likely to be empowered by crashing out of the EU. 

After all: who you gonna believe, Michael Gove, or your own lyin' eyes?

Stone cold morons

The indycampers are morons. There's no getting around it, no sugar-coating it: stone cold morons. In -- legitimately -- resisting the Scottish Parliamentary Corporate Body's attempt to expel their small camp from Holyrood's grounds, the group have argued their case in a fashion which has lapsed from the divinely ridiculous to the grotesquely insulting. They have consistently ignored substantial legal arguments they might use to win their case, spending hours instead on eccentric, invariably doomed political points and barrack room lawyering. They are their own worst enemies.

This morning, they returned to Lord Turnbull's court, explaining that - months into their case and months after his first option - they still haven't tracked down a lawyer to represent them. The spokesmen for the camp went still further. They accused the judge of blasphemy, demanded the Queen appear to give evidence, demanded a jury hear the case, suggested that a key "spiritual" argument should be addressed by the court, declaring that "Jesus Christ the second is here and we're going to get our independence." 

I have the utmost sympathy for litigants -- ordinary folk -- trying to formulate legal cases without the assistance of a lawyer. This is hard, sometimes impossible, work. The logic of our courts puts them at a clear disadvantage when faced - as the indycampers have been faced - with professional opponents, whose bread and butter work is understanding legal procedures, rules and principles.

Having to do all this on the hoof - for yourself - without access to legal databases, without inbuilt legal know-how gained over the years, is tough. The inequality of arms can lead to injustice. Some judges are sympathetic to the plight of party litigants, others less so. Some try to take an active hand, focusing the ordinary punter's attention towards the key legal arguments and issues, rather than letting them dangle in the wind. They try to even up the odds, between the represented and the unrepresented party. They keep their patience, and try to see justice done as best they can.

Lord Turnbull is such a judge. We can only presume he lost the card-cut in the judicial dining room in Parliament House, to find himself landed with this case. And despite all manner of provocations, interminable, boring and irrelevant submissions -- this Court of Session judge has exhibited the patience of a saint. He had bent over backwards to accommodate the indycampers. He has treated their arguments as seriously as he could. He has tried to find any crumb of substantive legal argument in their digressive, and often just plain oddball submissions to the court. And by gum -- Lord Turnbull actually found one. The judge lit up this arguable point with neon lights in his first opinion in the "sovereign indigenous people of Scotland" case.  He told them to focus on it. He sounded sympathetic.

And what have the indycampers done with this helping hand? On the evidence of today's hearing, they've completely ignored it, abandoning a potentially winnable legal point which could block Holyrood's eviction plan, preferring instead to indulge in more antics and insults. It is frustrating. It is baffling.

Here's the short version of how they might survive. The Scottish Parliamentary Corporate Body is a public authority. Under the Human Rights Act 1998, the actions of public authorities must conform with the rights protected under the European Convention.  Article 10 protects free expression, Article 11 your right to freedom of assembly and association. Both of these are engaged by Holyrood's eviction plans, and both are qualified rights. 

That means the state is entitled to interfere with your rights to speak your mind and freely to assemble -- but only if particular conditions are met. The restrictions on your rights must be (a) according to law and (b) in pursuit of a legitimate aim -- national security, public safety, for the prevention of disorder or crime, for the protection of health or morals -- that kind of thing. Lastly, any interference must also be proportionate, striking a fair balance between collective interests pursued by the legitimate aim, and the fundamental rights of individuals to express their views, and to assemble. This is for the court to decide.

And in his first opinion, Lord Turnbull actually sounded reasonable skeptical about whether evicting this small camp would represent a proportionate measure by the Scottish Parliamentary Corporate Body. Distinguishing the situation involving the indycampers from other nearly analogous occupations, the judge had this to say:

[67] I have heard no evidence on the extent to which the respondents in the present case do, or do not, constitute an interference with the rights of others to access the grounds of the Scottish Parliament, or on any other matter which might fall to be weighed in a proportionality assessment.  As a resident of Edinburgh though, I am familiar with the layout of the grounds surrounding the Scottish Parliament building and the general location of the Camp.  As indicated by the petitioner, the Camp presently appears to occupy a small area at the very edge of the grounds which it owns and at the furthest point away from the entrance to the Parliament building.  It is not immediately obvious that the presence of the Camp would inhibit the use of the grounds by others for picnicking, dog-walking, or the like, as founded upon by the petitioner.  Nor is it immediately obvious that there are any real security or logistical concerns of the sort drawn attention to by the petitioner and which might weigh the proportionality balance in its favour.  

Abandoning their ridiculous antics, ceasing gratuitously to insult the trial judge, focusing on this legal argument  -- might actually get them somewhere. But after this morning's session, that looks like a fool's hope.