Sunday, 27 September 2015

Choo Choo or Cuckoo?

I've been mulling over Labour's latest plans to "renationalise" the railways. Regular readers and friends will know that I'm not the type instinctively to support state ownership of services unless there is a compelling specific reason that regulation alone is insufficient to get the best service.

A Private Eye Classic
On the railways, though, I've always been more sympathetic to renationalisation. Maybe it's just that when I was reading The Railway Stories as a child, the post-nationalisation Fat Controller seemed a more jovial chap than his Fat Director predecessor. It does seem to be the case that fares outstrip general inflation, provide mediocre value for money compared to other forms of transport on short-haul, and even prove more expensive and time consuming than some flights between major cities. For example, if I were to book a couple of weeks in advance, I could travel from the centre of Glasgow to the centre of London and back by plane, including bus transfers at either side, for as little as £70 or so. Allowing for getting to and from airports, and check-in, the whole experience would typically take about 3 to 3.5 hours. By contrast, the cheapest train ticket from Glasgow Central to Euston, buying two singles, would be between £120 and £130, depending on how flexible I was prepared to be with the time of day. That journey would also take 4.5 hours. Even with a 16-25 Railcard, the airlines come in cheaper. If time and comfort were not a factor, I might as well be getting the 9.5 hour overnight Megabus and getting some change out of a £20 note.

It seems just instinctively ludicrous that rail travel has to be so uncompetitive with other forms of transport and, in Britain's rail's case, apparently so much less good value for money than that of other countries.

The case for renationalisation is, however, overstated. Virtually all of the ills of the British rail system seem to get blamed on it. Delays, cancellations, overcrowding, prices, cost to the taxpayer. Yet it all seems to ignore the fact that "privatisation" as we know it is actually quite a bit more complicated than people let on.

For instance, Andy Burnham blamed the fact he had to take a rail-replacement bus service to Labour Party conference on privatisation in a Tweet earlier today. I suspect he wasn't being entirely serious, but it is a myth that reliability problems are a consequence of privatisation. Rates of cancelled and late trains have fallen significantly since the era of British Rail, and in the small number of cases where the operators fail, they are heavily fined for it. This is part of the reason why, when franchise renewals come up, operators are so dependent on their reliability rates on other services, as any mismanagement significantly cuts their (narrow) profit margins, should fines become frequent. For my own part only once in my life have I been on a rail replacement bus service, and it was amusingly enough, while travelling to Munich from Prague on a state-owned DeutscheBahn express train! The grass is not always greener, it seems.

It's also worth pointing out that many cancellations and delays are not actually the responsibility of the train operators, like Virgin, Cross Country, Scotrail Abellio and the like. While these companies do run the services on a day-to-day basis, they are not in charge of two pretty big aspects of the railway system, namely the mechanical maintenance of the vehicles and the operation and maintenance of the rail infrastructure, like track, signalling and stations. If you're on a rail-replacement bus service, the chances are it has little if anything to do with the people whose franchises the Labour Party wants to end. It is more likely that it is an issue for which NetworkRail, a wholly state owned company, is responsible. If it is not a problem with the railway network itself, but with the rolling stock, that is primarily a failing on the part of a group of companies that, as far as I can see, Labour has not given any indication what they wish to do with. The people providing mechanical maintenance of trains are not Virgin Trains or Scotrail but Porterbrook and Eversholt. These are private companies with no franchising agreement with the government than can simply be "allowed to expire" before being replaced by a state-owned company.

If the Labour Party want to renationalise the railways, they'd have to either buy-out these companies or make their franchises refuse to lease their rolling stock in preference for a new state-owned supplier. This could create a litany of EU competition law problems for no real discernible benefit. One has to ask what the point is in remunerating up-front all these private investors when that money could instead go directly into rail expansion and electrification projects. Rolling stock isn't cheap, and there are legitimate arguments that the rolling stock companies are stuck with a business model that prevents prompt upgrading of rolling stock and that they extract profit from dated assets. But these companies are also heavily indentured in order to own this rolling stock in the first place. If they lack the capital to invest in new rolling stock, what good does it do to isolate them as a supplier before the government has the means to procure enough rolling stock of its own?

The best case for rail renationalisation for me is one of transparency. The system concocted by the Tories in the 1990s to try to generate an internal market was unnecessarily complex and seems to have lost the benefits of vertical integration of different parts of the supply chain. We probably wouldn't save much money in terms of subsidy of the operating companies if they were all state-owned, but bringing them back under public ownership would at least be a step in the direction of transparency about what parts of the system are profitable and what ones aren't. The drawback is, of course, that if part of the system is unprofitable, it's no longer the case that private companies are assuming part of the risk and the consequences, subsidy notwithstanding.

The gamble of renationalisation is that, with the best will in the world, some of the capital that makes new infrastructure possible will dry-up. Rail projects are extremely expensive at the best of times (see both HS2 and CrossRail) and if you start removing companies that own often debt-secured rolling stock, which are owned mostly by pension funds, from the picture, government has to make a much bigger contribution in the short-term to keep services running at their current levels. East Coast was a success in public ownership because it cut its cloth and had a new management system put in place. Sometimes governments will be a better arm's length manager for a particular franchise at a particular stage in a route's lifetime. Attempts to extrapolate that isolated success network-wide, without a clear answer to the question of how Labour proposes to change the other stages in the rail delivery process, however, is just populist and nostalgic.

Monday, 20 July 2015

Piercing the Secular Veil

There is an episode of the American Presidential drama, The West Wing, called "In God We Trust". It follows the challenges of Arnold Vinick, a liberal Republican, who finds himself in hot water with the religious right of his party, particularly on the question of his stance on abortion. Arnie's religiosity had very noticeably faded with the passing years, but just as in the real world of American politics, the role religion had in public life remained every bit as potent. It emerges, when Reverend Butler, one of his Republican primary candidates invites him to come to his church to pray for divine wisdom, that Vinick had not attended church for quite some time.

Facing down the pressures from within his own party, Vinick eventually provides a robust, if unpopular, response to the media storm that ensues. Responding to those that seek to shoehorn religious debate into politics, he ends a press interview with the totemic rebuke:
"I don't see how we can have a separation of church and state in this government if you have to pass a religious test to get in this government.

So every day until the end of this campaign, I will answer any question on government. But if you have a question on religion, then please, go to church."

As a secular liberal, I have a significant and instinctive affinity with Vinick's sentiment. It feels right that religion should, for the most part, be a private matter, and not something that the state is concerned with. I am also weary of any person or group which seeks to use organised religion for explicitly political purposes.

The American experience is, in many respects, the total reverse of the British one. Despite lacking a separation of church and state, there is a much more limited role for religion in political life. Far from being an electoral asset, publicly professing religious belief is arguably a hindrance to politicians on left and right alike. When Alastair Campbell said of the Blair government that "we don't do God" it was a reflection of British public life. Religion is seen as an unwelcome distraction from broader social issues which transcend the theistic loyalties of the people on this island.

It is against that culture that the storm in the Liberal teacup brewed this week. Tim Farron, the new party leader, is openly a committed, born-again, evangelical Christian, and has been since early on in his adult life. Against a tide of increasing irreligion, and in a political environment where religion is increasingly seen as the preserve of the conservative right, this makes him markedly atypical.

Any secular liberal would see no problem with Tim being a Christian and the leader of a Liberal party. Both of my parents, who are Church of Scotland Ministers, recently joined the Liberal Democrats. The late Charles Kennedy was Catholic. Christianity and Liberalism are not incompatible. The two can exist perfectly constructively. Anyone who suggests otherwise probably doesn't understand secularism or liberalism, and the toleration that binds them together.

There ought not even to be a problem with Tim being an evangelical Christian. Certainly it is easier to reconcile theological liberalism with political liberalism, reading religious texts more as historical documents reflective of the morality of their time than purely and unwaveringly the universal diktats of the relevant deity. Evangelical, or more literalist scriptural interpretation, is more hard-edged in its implications for personal morality, but crucially it does not, in and of itself, necessitate the imposition of one's personal morality upon others. An evangelical Christian might insist on abstinence before marriage, and might privately disapprove of those who do not, but few would call for criminalisation or insist that the rest of society ought in some other way to be held to that moral standard.

Secular liberalism does provide a firewall, or a demarcation, that makes it possible hold yourself to what you see as a "higher" moral standard than you do others. Views can be held privately, and are not "illiberal" except insofar as they impinge upon the freedom of others to do the same. It's harm principle 101.

Where things get difficult is when this firewall breaks-down. Many liberals would like to think that this firewall is impregnable. If people who believe same sex relations are sinful or immoral nonetheless treat those in those relationships equally with others, the argument goes, their liberal credentials are unscathed.

The reality is somewhat more complicated. Religion does not manifest itself as a purely private endeavour. The nature of organised religion, in particular, means that theological views gain a social power. It is this social power that often facilitates, even if unintentionally, the stigma and otherisation and discrimination against certain minority groups, including the LGBT+ community. It also does a great deal of good. Much of th einfrastructure of philanthropy and charitable work is sustained and supported by religious groups, as is the cause of vulnerable and persecuted groups across the world, who get precious little attention elsewhere. The social power of religion and faith is not only negative, but those invoking it have to be mindful that it is a double-edged sword and that scrutiny of it is both expected and necessary in a free society.

Religion is not unique in this respect. Private moral beliefs, when shared or expressed in a community, do carry social power, and serve to "enslave by conformity" to use the traditional Liberal lingo. Organised religion is merely the most potent example of this social power in respect of these kinds of issue. The social effect of knowing or believing that others in your community, be it a political one, a religious one, a sporting one or something else, thinks that acting upon your sexuality is sinful, is significant, especially for young people who are coming to terms with it. They inhabit a world where the historical legacy of parts of organised religion, both in its teachings and its soft power, has shaped a world in which sexual and gender minorities are seen on some level as abnormalities or immoral.

This is why I found it so depressing to see some Liberal Democrats dismiss the concerns of other members as a zealous obsession with gay rights. The cause of liberalism requires us to be a lot more demanding as to what a secular liberal society really is. It's not just about toleration and rights. It is also about parity of esteem. It's not enough simply to be against the gay blood ban and for the legalisation of same sex marriage for liberalism to triumph. We also need individuals to feel empowered in the parts of their lives that legislation cannot touch. Until homosexual relationships are responded to with an indifferent shrug, there remains work to do. When someone says, or implies, that they think that by acting on your sexuality you are in some sense sinful, that makes them feel unwelcome and unnatural. That sets back their liberation and, even if unintentionally, pressures them to conform with traditional gender and sexuality roles.

For what it's worth, I think Tim is conscious of the need for wider social acceptance and I have no doubt that in his personal dealings with members of the LGBT+ community he has been supportive and inclusive in emotional and practical ways. Aspects of his voting record on some social issues remain to be fully explained and might reasonably give people cause for caution as to whether his private views have influenced his public actions, be they his interviews, writings or Parliamentary record. On same sex marriage, we can extend benefit of the doubt given his support at second reading.

But his handling of the God question has been poor, and has upset and alienated a lot of people who feel vulnerable in our society: tolerated but not accepted. There were two options open to him. If he does not believe that homosexual relationships are sinful, he could have just said so. If he does believe it, though, the secular liberal firewall needs to be all the stronger. Talking about everyone being sinners is profoundly unhelpful and did nothing to close off the concerns that his private morality seeps into his public and that there is a tension between what his God demands and what liberalism demands. If the firewall were to hold, his answer needed to be in the spirit of Arnold Vinick:
"Every day I am the leader of this party, I will answer any question on government. But if you have a question on religion, then please, go to church."

Full Disclosure: I self-describe as agnostic, believing the existence of God to be unknown and unknowable and seeing no reason why a deity would be so narcissitic as to demand or expect my loyalty. I was brought up a Christian as the son of two theologically liberal Church of Scotland ministers. I sometimes go to church, out of ties to family and friends and sometimes out of a need for self-exploration. I voted for Norman Lamb, but Tim's religiosity had no bearing on that decision.

Monday, 13 July 2015

When's an English matter no' an English matter?

The SNP have decided that they are going to vote against the efforts of the Conservative Government to relax the hunting ban in England.

This is a significant departure from a self-denying ordinance traditionally adopted by their Westminster representatives, who have committed not to vote on English-only matters. That position was a principled one and perfectly reasonable for them to adopt in the aftermath of devolution, especially given their broader belief that Scotland should be in complete control of its own domestic affairs and that English and Welsh MPs should not be involved in those decisions.

There is also a perfectly principled argument for adopting no such self-denying ordinance. England has declined to demand for itself a Parliament or regional assemblies with the legislative competence to deal with their own domestic affairs. As such, it is no more illegitimate for Scottish MPs to vote on matters only affecting England than it was for English MPs to vote on policy matters affecting Scotland before devolution.

This is not the justification given, however. Angus Robertson is trying, disingenuously, to present this as a response to the government's refusal to entertain opposition amendments in the early stages of the Scotland Bill.

There is a tenuous effort, first and foremost, to suggest that the Tory proposals for the ban south of Gretna have any bearing on the Scottish debate about the same domestic issue. The notion that the English debate would have any bearing on what the Holyrood Parliament can or will do in this area is self-evidently nonsense. The original Hunting legislation for Scotland was actually passed by Holyrood, completely separately from that pushed down South. It is a devolved matter and the law in England will have no bearing whatsoever on it.

This is quite different from a situation where a predominantly English Bill has ancillary effects on issues within the purview of Holyrood. It is not even a case where the Scottish block grant is directly or indirectly affected by a change to English departmental spending. It certainly is not like welfare votes, which relate to reserved matters that affect directly people living in Scotland.

The motivation here seems to be entirely a desire to give the Tories a bloody nose. Now I'm in favour of giving this government as many bloody noses as possible. But in doing so, any Scot who condones Scottish MPs voting on English hunting must also accept that it is perfectly legitimate and reasonable for this government's English MPs to vote on and have some control over the legislative agenda for the Scotland Bill and any amendments made to it. The future settlement for Holyrood has significant constitutional, governmental, and practical implications for UK citizens in England, Wales and Northern Ireland, and to deny the legitimacy of the House to involve all of its members is really to ignore the necessary implications of Scotland voting No on 18th September 2014

I understand the frustration of the SNP at their total impotency at Westminster, despite having won 56 of Scotland's seats. The solution to that, though, is not to snipe from the sidelines, but to get involved where the business of Parliament is really going to get done in this 5-year term. The House of Lords. Already the Labour Party and the Liberal Democrats are showing that the Upper Chamber is where real influence will come on government legislation, where the Tories lack a majority. They haven't just been given a bloody nose in "the other place"; actual changes to legislation have happened and look like happening. It was the House of Lords that provided some of the most effective resistance and improvements to government legislation in the last Parliament and already looks likely to trump the Commons Tory majority on votes at 16.

If they are prepared to bend their democratic principles, in their self-denying ordinance on English Votes for English Laws, there is no good reason for them not to do so on putting forward nominees for the Lords. It is perfectly consistent, and principled, to say that you oppose the appointed nature of the Lords, but also to acknowledge in the absence of support for its reform or abolition, that it is necessary or advantageous to work within that system to reform it and other laws.

The SNP have got used to having power without a great deal of effective responsibility. The question they need to answer is whether they actually want responsibility. With effective responsibility comes the power to make some significant changes to the way Britain is governed, and to improve the lives of Scots and the rest of the UK alike in really important ways in the next five years. But responsibility also means accepting the limits of what can be achieved, and it also involves a bit more humility about their own record at Holyrood. If they want to make big and real changes to the way Scotland is governed and to transform the lives of those living in Scotland, the politics of distance, deflection and demonisation has to end.

Their approach at Westminster is only part of the story, but is symptomatic of an approach which prioritises the popularity of the SNP over effective if unpopular policy-making. One day, the SNP is going to have to decide: is it more important to be electorally popular or to do the right thing by Scotland?

Monday, 15 June 2015

Permanency and Parliaments

The latest Twitter storm in relation to the Scotland Bill concerns the very first clause. It is being claimed that the Commons has voted against the permanence of the Scottish Parliament, and that therefore the Smith Commission proposals have not been upheld.

This is untrue.

Amendment 58, moved by the SNP, proposes to change the wording of sub-clause 1(1), which amends the first section of the Scotland Act. The Bill's original wording simply provides a new section which would read as follows:

"(1A) A Scottish Parliament is recognised as a permanent part of the United Kingdom’s constitutional arrangements."

The proposed amendment would read:

"(1A) The Scottish Parliament is a permanent part of the United Kingdom’s constitution. 
(1B) Subsection (1) or (1A) may be repealed only if—
(a) the Scottish Parliament has consented to the proposed repeal, and
(b) a referendum has been held in Scotland on the proposed repeal and a majority of those voting at the referendum have consented to it."

It is being maintained that, by voting against this amendment, the Commons has voted against making the Scottish Parliament permanent.

It is certainly the case that, so long as (1B) were to be on the statute book, there is a significant political obstacle to the repeal of the Scotland Act or the removal of the Scottish Parliament. The political cost of not having procured consent of Holyrood and the Scottish people, having made a written commitment to do so, would be enormous.

In terms of its legal effect, however, this additional sub-clause does not add anything at all. If the concern of the movers of this amendment is that (1) or (1A) might be repealed, one presumes by ordinary legislation in the Westminster Parliament, what is to stop exactly the same piece of legislation from repealing (1B) in the same piece of legislation? Nothing. Any scenario in which the repeal of (1) or (1A) would be in issue could also see (1B) in the firing line.

This actually relates to more fundamental problems with the drafting of the Scotland Bill. The recommendation of the Smith Commission in relation to the permanency of the Scottish Parliament is essentially constitutionally impossible, so long as it is accepted that the Westminster Parliament is legislatively supreme and may make or unmake any law.

The proposed (1A) by the government does not actually make the Scottish Parliament permanent either. It says that it makes it permanent. But what does that mean? If Westminster passed the Abolition of the Scottish Parliament Act that purported to repeal it in its entirety, who would actually stop the Parliament from ceasing to exist? Not the courts. They would take their instruction from the most recent and unambiguous words of the Westminster Parliament. This is no greater legal protection of the existence of Holyrood than the Scotland Act as it stands.

If you were to make the Scottish Parliament permanent, you would need a codified constitution, and you would need to abolish the Westminster Parliament, or at least find a mechanism by which its legislative supremacy is "permanently" or irrevocably constrained. No provision in the Scotland Bill is capable of doing this, because of the principle that no Parliament may bind its successors.

Even if (1A) were capable of making the Scottish Parliament permanent, in terms of the law, (1B) arguably weakens, not strengthens, the protection, by providing a specific exception to the provision of (1A). Any logic that argues that (1B) is immune from repeal must accept that (1A), without (1B), is immune from repeal.

The principle that the Scottish Parliament and the Scottish people should both have a veto over Holyrood's abolition is a perfectly sound one. Neither the government's clauses nor the SNP amendment deliver this.

We need a constitutional convention!

Monday, 8 June 2015

This is not the veto you were looking for

A common refrain from the Scottish National Party in recent days has been that the Scotland Bill is not living up to what was agreed in the Smith Commission. The key complaint seems to be that there is a "veto" for the Secretary of State for Scotland over the introduction of or alteration to welfare benefits falling within the Holyrood Parliament's competence.

What they appear to be talking about is a restriction on the Scottish Ministers making regulations concerning devolved aspects of Universal Credit. Here is what the Smith Commission said about it:

"43. Universal Credit (UC) will remain a reserved benefit administered and delivered by the Department for Work and Pensions (DWP). Within this framework, the Scottish Parliament will have the powers outlined in paragraphs 44 to 45 in relation to UC.

44. The Scottish Government will be given the administrative power to change the frequency of UC payments, vary the existing plans for single household payments, and pay landlords direct for housing costs in Scotland.

45. The Scottish Parliament will have the power to vary the housing cost elements of UC, including varying the under-occupancy charge and local housing allowance rates, eligible rent, and deductions for non-dependents

46. The power to vary the remaining elements of UC and the earnings taper will remain reserved. Conditionality and sanctions within UC will remain reserved."

The key points are therefore as follows:

1. Universal Credit is to remain, generally, a reserved matter, administered mostly by the UK Government's DWP.
2. The Scottish Government is to be given some flexibility in certain administrative and minor policy provisions in relation to it.

Now let's look at the provision in the Scotland Bill to which this "veto" relates. It appears to relate to the power to make regulations in respect of how much housing benefit someone is entitled to, who it's to be paid to, and how frequently. Pretty dry stuff. Sections s24(4) and 25(3) are the ones that contain this so-called "veto" power. Their wording is identical. It is as follows:

"The Scottish Ministers may not exercise the function of making regulations to which this section applies unless—
(a) they have consulted the Secretary of State about the practicability of implementing the regulations, and
(b) the Secretary of State has given his or her agreement as to when any change made by the regulations is to start to have effect, such agreement not to be unreasonably withheld."

The wording of this, to me, seems pretty clear. The nature of the duties and rights here do not relate to whether or not a set of regulations may be made, but when their implementation should take place. It is an administrative function to ensure DWP is ready to alter Universal Credit payments in line with whatever regulations the Scottish Government decides to make. This explains the consultation on the "practicability" of the "implementation" of the regulations in sub-clause (a), and suggests that the requirement to consult does not relate to whether or not any change should happen. This is re-enforced by sub-clause (b) which restricts the Secretary of State's ability to withhold agreement "as to when any change made... is to start to have effect".

This is important, because it means when Stewart Hosie said, on the Daily Politics earlier today:

"If the Secretary of State, the sole Tory left in Scotland, decided not to give his agreement, for whatever reason, he or she has a de facto veto and therefore the spirit of the Smith Commission is breached before we even get going."

He was wrong. Firstly, because refusal cannot be "for whatever reason". It must relate to the practicalities associated with the timing of the implementation of the regulations. This is not a veto. If the Secretary of State refused to give his consent because he or she disagreed with the principle of housing benefit payments being increased, or made more frequently, his or her decision could be subjected to legal challenge as using a power for an improper purpose, or for taking into account irrelevant considerations, two well-established common-law grounds for judicial review, and ordered to be retaken.

This is re-enforced further by the second part of the sub-clause, which provides that "such agreement [is] not to be unreasonably withheld". This, in effect, means that if the Secretary of State is to withhold consent, he or she must be able to show that it was reasonable to withhold consent with respect to the timing of the implementation of the regulations. He or she would likely need to show evidence of administrative difficulties meeting the demands of the Scottish Ministers' regulations from the DWP, and failure to do so might additionally have the decision struck down by the courts for irrationality if no such obstacles can be identified.

If the Scottish Government's powers with respect to Universal Credit were to be administered by a Scottish Government Department, it might be reasonable to say that consent in some form of the UK Government was unnecessary and unreasonable. This is not, however, what the Smith Commission proposed. It proposed that Universal Credit be a matter for the Department for Work and Pensions. This provision is one intended to facilitate logistical integration between Holyrood regulations and Westminster departments. It's not a political ploy to stop Scottish politicians implementing different welfare policies from the rest of the UK.

Put at its simplest: this is not a veto. This is what Smith promised.