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Friday, 11 July 2014

Taking Responsibility

Those who have followed my previous utterances on Scottish independence will know that I am sceptical of a lot of the rhetoric and claims made by the SNP and the Yes campaign. I don't describe myself as centre-left, unlike, probably, most politically active Scots in that movement. I don't consider myself to be a nationalist, even of the civic variety. I don't agree with many of the claims of either campaign that Scotland will be a significantly more or less prosperous society if it becomes independent. I don't even agree that we will be a noticeably more equal society if we become independent.

A common argument I hear, with which I have considerable difficulty, is the suggestion that we should vote Yes to create a more equal society. We are told that the policies of the Tories, especially on welfare, are strongly opposed by Scotland and that we need to control welfare to build a society that adequately protects the most disadvantaged. It seems superficially attractive. It is true that the two parties Scotland votes for most strongly, the SNP and Labour, do adopt a less hostile attitude, in terms of rhetoric and with respect to some specific policies on the question of welfare than do the Tories. This does not, however, appear to translate into actual attitudes towards welfare. When polled on actual policies, the majority of Scots support welfare to work programmes of the kind pursued by Westminster, would reduce access to benefits for immigrants, have very similar attitudes towards immigration as the rest of the UK and only very slightly register as more left-wing on whether taxation should be higher to fund more public services.

This is important, because central to the rhetoric of the Yes campaign is that we need independence to be able to make different decisions from the Westminster government "that we didn't vote for". If our attitudes towards actual welfare policies are broadly the same as the British electorate as a whole, however, how do they suppose we will vote for different policies in an independent Scotland? Sure, we vote for parties that are more left-wing under the current settlement, but we never think to ask why that's the case given how apparently similar we are on social attitudes.

I think I know why this dichotomy exists. Scots have come to think of themselves as being more left-wing because, as a polity, they have not really been given the responsibility for making decisions about how they respond to global challenges. Whereas many other nations, which by no particular moral reason have come to become our default political communities, have had to face up to the challenges of interdependence and the fiscal constraints that a global market place on what our governments can do, Scotland has not been confronted with those decisions. Its primary experience of global capitalism, of modern challenges to managed economies, and the ability of the state to provide, with ease, for all, has been to see a political elite from outside take those decisions. That political elite never really had to rely on the Scottish political community to address these problems, so Scotland was never really a part of that discussion. It's not just that the Tories introduced unpopular policies in Scotland, culminating in the Poll Tax; it's that in the centralised British state the winning coalition required neither the hearts nor the minds of middle Scotland, whether they were a Tory or Labour administration.

The consequence is that Scotland has identified the blame for the negative consequences of these global forces with Westminster, despite them being phenomena over which any government can exercise only limited control. Scottish politics has, culturally, served to blame the British state, the British establishment, for all the negative aspects of their current predicament. As a polity, we have learned to associate anything that is difficult to solve as being easy to solve if it weren't for a malevolent Westminster. As a nation, as a polity, we have never been confronted with these decisions, and we have never taken the responsibility for the consequences.

In this respect, devolution was only a partial answer. It gave us responsibility for how money was spent, how to run our schools, our healthcare system, our Universities, our transport network, our justice system and the like. On the relative virtues of how money was spent, we got a taste of that responsibility. Yet we continued constantly to compare ourselves to Westminster. "Look at how we don't have tuition fees/prescription charges/expensive personal care for the elderly" we would say, triumphantly. "Look at how this power has meant we don't have to do things like Westminster!".

And in the areas where we didn't have power, especially in welfare, we insist that all of our ills would be solved if only we voted for independence: "we did this with devolution, look what we could do if we get away from Tory governments". We can scrap the bedroom tax! We can be more compassionate! Aren't we wonderful?

All the time, we have taught ourselves to associate everything that is done well with ourselves, and everything that is done badly with the external: that which we don't control. Yet without the responsibility for raising the lion's share of what it spends, the entire culture of the Scottish Parliament in some respects made the national psyche worse. If there wasn't enough money for colleges, it's Westminster's fault because of the block-grant and the Barnett formula. If we didn't have a cancer drug fund, it was Westminster's fault because of austerity.

Seldom does it seem to occur to Holyrood that the reason we might not be able to spend on certain policies is because we have chosen to allocate resources to other things. It seems we are content instead always to find someone else to blame. We abdicate responsibility by suggesting the limits on what we can achieve are external, but only to ourselves and not to governments with just a bit more power. This responsibility deficit that plagues Holyrood may to some extent be mitigated if the Scottish Parliament gets real control over income tax and some other taxes. But in many respects, the cultural damage has already been done.

I often hear a characterisation that Scotland is "too wee, too poor and too stupid" to be an independent country. Ironically enough, I hear it more from Yes supporters misrepresenting the views of No voters than I actually do from No voters themselves. I suspect that if Scotland is too wee and too stupid, it's been helped in no small part by a rhetoric and a political culture that defaults to blaming others for our predicament.

This is one of the reasons I am sympathetic to independence. It has reached a stage in Scottish politics where the only way we can grow up, be mature about the challenges that face us, and to stop blaming others for the ills in our society, is to take responsibility for ourselves. Not because we will necessarily do a better job, but because having to take those decisions for ourselves will change the way we think about how those decisions are made. When it comes to things like welfare, the Scottish debate will actually have to be about our older population, a pensions timebomb, and structural unemployment. No more can it be about blaming the legacy of "the Tories" or "Westminster". We will have all the powers at our disposal so there can be no excuses. When we fail, they will be Scottish failures, and we will better understand ourselves and our society through those failures.

There is a learned helplessness in Scotland. We project our own failings onto the British state because, all too often, we haven't the courage to face up to them. I suspect independence just might change that.

Wednesday, 25 June 2014

Wednesday Zazu Because Reasons


"If this is where the monarchy is headed, count me out!
Out of service, out of Africa. I wouldn't hang about."

Tuesday, 17 June 2014

Beware the Draft Constitution

Consultation opened yesterday
Yesterday, the Scottish Government released a Draft version of the Interim Constitution for an Independent Scotland. The idea seems to be that it will take the form of a piece of legislation, passed by the Scottish Parliament, serving as a holding arrangement to facilitate the continued operation of governmental matters until a more comprehensive constitution can be drafted by a Constitutional Convention and, one presumes, ratified by a plebiscite.

I won't beat about the bush; this document is a bit of a mess in places and sorely needs rewritten. It is poorly drafted, filled with ambiguities, potential contradictions, and provisions that do not appear to serve any obvious constitutional or legal function whatsoever. There are also changes in certain areas that should be a cause for concern for the transitional period for which this constitution is in force.

I deal with it in broadly chronological order.

Clause 1 - Independence

This section attempts to do three things. First, it seeks to declare that Scotland will become independent on Independence Day. Second, that Independence Day shall be determined by a resolution of the Scottish Parliament, and thirdly that the Scottish Parliament and Government shall assume full competence in their respective areas. It appears to be confusing what a piece of Westminster legislation would need to do with what needs to be part of the Scottish Parliament's activities.

In order to be able to pass this Bill in the first place, there will have to be some enabling legislation from Westminster. The Scottish Parliament is not competent unilaterally to declare independence, being a body whose powers depend upon the Scotland Act. It reserves these constitutional matters to the Westminster Parliament.

Such a Bill will likely take a form, which is similar to the Canada Act 1982. It did two things. The first is actually contained in section 2. It provided that after the passing of the Act, the United Kingdom Parliament shall have no power to make laws in respect of Canada. The second, in section 1, was to give effect to the Constitution Act of Canada, which was contained in a Schedule at the end of that Act.

The Constitution Act 1982 itself was a product of the Canadian Parliament. It provided (in Art 59) for the coming into effect of the new Canadian constitutional order on the signing of a proclamation by the monarch.

The structural approach to the issues dealt with in clause 1 seem to be backwards. Subclause 3 is unnecessary; it is the inverse of that which would be dealt with expressly by the enabling Westminster legislation and is dealt with in clauses 10 and 11. Subclauses 1 and 2 deal with the same thing in an excessively wordy and clumsy way. If they want independence to be "given effect to" by a resolution of the Scottish Parliament, fine. That merely requires a provision in Part II of the Bill saying that the Constitution shall have effect on the passing of a resolution of the Scottish Parliament. That provision already exists: clause 36. This is an unnecessary mess.

Clauses 2-3 - Sovereignty

Nicola Sturgeon has made a big deal out of the fact that this constitution declares the Scottish people to be "sovereign". This is a popular sentiment that often gets bandied about in Scottish constitutional discourse, with grand appeals to the Declaration of Arbroath and the like. In her remarks, she seems to be conflating "being a democracy" with "the people being sovereign". She says "Sovereignty means the people of Scotland always getting the government we vote for to govern our country the way we want".

That isn't sovereignty in the sense we talk about Parliamentary sovereignty, the thing she wants to contrast it with and what clause 3 actually deals with. That's just being a democracy. The United Kingdom is already a democracy, albeit an imperfect one. What she is saying is that the privileged unit, or what constitutes "the people" for the purpose of democracy will become the Scottish electorate instead of the British electorate. It doesn't take Sherlock to work out that that is going to be the case anyway in the event of independence. Clauses 2 and 3 do nothing of substance to embody that change in anything more than a symbolic way.

Sovereignty of the people is contrasted with the much misunderstood notion of the "sovereignty of Parliament" in UK constitutional discourse. But what does "sovereignty of the people" actually mean, according to this Constitution?

You would think that it means that the people would be given a privileged relationship relative to the constitution? That's what it is taken to mean in other countries with constitutions that declare sovereignty to be in the nation, and to confer some sort of symbolic right to resistance against tyrannical government or to recognise a "constituent power" to amend the constitution. As an idea, it must surely mean the people have the right to amend or replace the constitutional framework if it becomes contrary to their will.

But no. It turns out the sovereignty we're going to enjoy is something rather more modest. Sure, we get lip-service to this grand ideal in clause 3(1):

"In Scotland, the people have the sovereign right to self-determination and to choose freely the form in which their State is to be constituted and how they are to be governed."

And even clause 3(2):

"All State power and authority accordingly derives from, and is subject to, the sovereign will of the people, and those exercising State power and authority are accountable for it to the people."

These grandiose claims are, then heavily qualified. We are told in clause 3(3) that:

"The sovereign will of the people is expressed in the constitution and, in accordance with the constitution and laws made under it, through the people’s elected representatives, at referendums and by other means provided by law."

And in clause 3(4) that:

"The sovereign will of the people is limited only by the constitution and by the obligations flowing from international agreements to which Scotland is or becomes a party on the people’s behalf, in accordance with the constitution and international law."

These two sections mean, frankly, the opposite of the people being sovereign. What they say is that the people can only have their will expressed through the constitution itself, and that, by the way, international treaties also take supremacy.

What this means in practice is not that the people of Scotland would be sovereign. On the contrary, it makes the provisions of the constitution, and treaties with other states and bodies, the ultimate source of power in Scotland. It serves, along with later provisions, simply to refuse to imitate the "legislative supremacy" presently enjoyed by the Westminster Parliament. This means that if the Scottish Parliament passes laws in accordance with the democratic wishes of the electorate, which go against the Constitution, they will now be struck down by the Court of Session or High Court of Justiciary.

Constitutional oversight is an important function. Many onlookers will think restricting what Parliament can do with ordinary legislation is a good thing. I am one of them. Nevertheless, this provision transfers powers from the legislature, containing the representatives of the people, to the courts, a bunch of (mostly) white, old, privately educated, men; not from Parliament or the elites to the people.

Clause 4 - Interim Constitution

The desire is made clear here that the Constitution contained in Part II of this Draft Bill is intended only to be temporary. This seems perfectly logical, and allows a much bigger debate with stakeholder groups in a cross-party affair at a later date to produce something of greater permanence. I have, however, one significant concern. Nowhere in this Draft Constitution is there a provision outlining the process or authority of any body to amend the interim constitution. This is important for two reasons.

Firstly, it is necessary if the permanent constitution is properly to supersede it in the fullness of time. Secondly, if the Constitutional Convention for the permanent constitution is unsuccessful in being ratified, for whatever reason, we need a mechanism which allows for the amendment of the interim constitution to make any changes, from time to time, as may be necessary. This appears to have been an oversight on the part of the Scottish Government, who rather seem to be taking for granted that whatever is produced by a Constitutional Convention will in fact be agreed to by the Scottish people.

Clauses 5-8 - The State

These are largely perfunctory provisions. Clause 5 states, in possibly the least controversial manner possible, that Scotland is to be called Scotland. Clause 6 purports to determine the territory of Scotland:

"In accordance with international law, the territory of Scotland continues to consist of all the land, islands, internal waters and territorial sea that formed the territory of Scotland immediately before Independence Day."

This is somewhat confusing. Scotland's territory is not, as such, "defined" in international law, where borders are determined as between extant states, before Independence Day. There are boundaries that have been chosen for numerous domestic purposes in UK law, but this is different. What constitutes "Scotland's territorial sea" in particular will not be absolutely clear until the negotiations with the UK Government have reached a satisfactory conclusion. This needs to be revisited.

Clauses 7 and 8 are bog standard fare but not especially illuminating, declaring us to be a constitutional monarchy, a parliamentary democracy, to have a flag, and to let the Scottish Parliament decide if we should have a national anthem.

Clause 9 - The Head of State

A small thing, and it could just be me, but I think this clause has been very poorly drafted. It is not entirely clear whether the intention is to retain the formal Union of the Crowns, to purport to restore the old Scottish Crown, or to institute a new Crown. Rather than saying that "Her Majesty Queen Elizabeth is to be Head of State, as Queen" ("is to be": yuck) and "Her Majesty is to be succeeded as Head of State (and as Queen or, as the case may be, King) by Her heirs and successors to the Crown according to law" there should be an attempt here to stipulate the line of succession in terms that are readily accessible.

This does not necessarily mean that the line of succession has to be spelt-out at length here. It could choose to refer either to the (English) Act of Settlement 1701, or to Article II of the Union with England Act/Treaty of Union to preserve the existing line of succession, or to some accord mutually agreed between Scotland and rUK in advance of the split.

It has been suggested (H/T Adam Tomkins) that clause 9(3) is incompatible with clause 3(2) above, given that the privileges of the Crown are ultimately derived from the position of the monarch as sovereign. This would appear to be incompatible with the assertion that all power comes from the people, unless we are now to understand that crown privileges are to be understood as being derived from the people, an exercise in constitutional acrobatics if ever there was one...

Finally, I'm not sure whether it's an act of mischief to omit the Roman numerals after the Head of State's name, paying homage to the infamous case of MacCormick v Lord Advocate!

Clauses 10-11 - The Legislature and Executive

These provisions are fairly uncontroversial if stubbornly resistant to being aesthetically pleasing. It should be manifestly obvious that the legislature and executive's powers are "subject to the constitution". For some bizarre reason, the draft seems intent on emphasising the continuity of the Scottish Parliament and Government from the devolved institutions. It seems unnecessary to say that these bodies "continue" to have the powers of, respectively, law-making and administration. As a drafting point I would replace "continue to" with "shall".

Clause 12 - State Accountability

I have to confess I am at a loss as to what the actual point of this constitutional provision is. It just says that the Scottish Parliament is accountable to the people and that the Scottish Government is accountable to the Scottish Parliament. This is just a trite restatement of parliamentary democracy. This wasn't thought necessary in Canada's constitutional statutes, and it feels unnecessary here. There is no reason why this is necessary to ensure that those principles continue to operate, whether in practice or by enforcement through judicial action taken under the Constitution.

Clauses 13-15 - Juridical

This is where things get really interesting, and for me, worrying. Clauses 13 and 15 are uncontroversial. A commitment to an independent judiciary and a wishy washy reference to the rule of law continuing to apply. My principal objection is to clause 14.

Since the 18th century, litigants in Scotland in a civil case have had recourse to the House of Lords (and later, the UK Supreme Court) as a domestic court of last resort when appealing a decision of the Inner House of the Court of Session. This provided an important level of independence of approach to issues at the final stage of appeal or review, distinct from both the Sheriff Courts and the Court of Session, and has helped to ensure justice is both done and seen to be done. With the advent of devolution, the Judicial Committee of the Privy Council (and later the UK Supreme Court) were given supervisory jurisdiction over criminal trials insofar as matters of constitutional importance were engaged (such as European Convention rights). This provided important distance from the Sheriff Courts and from the High Court of Justiciary to provide a more critical approach towards matters particularly of procedural justice.

Clause 14 proposes that the jurisdiction of the UK Supreme Court shall cease entirely. This is in and of itself understandable. However, the Scottish Government do not propose to replace the jurisdiction with that either of a Supreme or a Constitutional Court. This will have several negative effects. For one, it will lead either to the forced retirement or exile of Scotland's two most senior jurists, Lord Reed and Lord Hodge. More importantly, however, it will make it more difficult for those wronged by our main appeal courts to achieve the appropriate redress. The UK Supreme Court made a number of important interventions on questions of Scots law being incompatible with the European Convention on Human Rights, most notably on the question of access to legal assistance when being interviewed by the police under caution.

There is a risk that not having a court supervising the jurisdiction of the High Court and Court of Session, that rather more Scottish cases will end up having to go to Strasbourg, and the European Court of Human Rights, for a determination, in effect replacing a domestic court of last resort with an international one. In addition to the expense associated with defending cases in Strasbourg for the public purse, this will significantly alter justice in a way that risks both disempowering Scottish courts to reach solutions which reflect the nuances and needs of the Scottish justice system and deny some people proper access to domestic justice at all.

In any case, I remain uncomfortable with the notion that we could end up with two Supreme Courts, potentially arriving at different conclusions on the interpretation of, say, our interpretation of the same Convention right, without a court of final resort within the same jurisdiction to resolve that disagreement. In a system where the legislature will now be explicitly limited in a way the Westminster legislature is not, a Constitutional court for, among other things, asylum and immigration cases and anti-terrorism, a definitive power capable of conclusively striking down primary legislation should have some distance from the ordinary work of the Scottish courts system.

The retort, as with much else of this Draft, will no doubt be that Parliament can still discuss this draft and that in any case this is only an interim constitution. I find it difficult, however, once the precedent has been set re-establishing the High Court and Inner House as the Supreme Courts of Scotland, to see the Constitutional Convention insisting that this be changed again. The inertia of the new system will make calls for such a reform struggle to gain traction.

Clause 16 - The Civil Service

This clause is uncontroversial, and simply provides that the civil service will be a thing, that they've to be honest and impartial and objective. I'm not sure that it necessarily needs to be in the constitution, and indeed the clause delegates the regulation of the civil service to ordinary legislation. The future descriptive wording "Further provision about the Scottish civil service is to be made by Act of the Scottish Parliament." is not very constitutional in its framing and could be better expressed.

Clause 17 - Local Government

This is another one of those provisions of questionable worth given what it actually says. It aims to maintain the status quo, for now, with local councils and re-iterate the cycle on which their elections are to be held. The nomenclature seems, somewhat bizarrely, not to conform to the actual provisions of the Local Government etc. (Scotland) Act 1994, which refers to "local authority areas". Instead we get references to "local councils" and "local areas". It is sloppy language like this, which rather suggests that the drafting of this document has been slap-dash. The provision which maintains that "local councils have autonomy over the carrying out of their functions" seems to me to be unnecessary, unless local authorities are now to be able to rely upon this constitutional provision to get judicial decrees blocking interference in specific instances by the Scottish Government. Surely these protections already exist and are adequate in the local government legislation?

Clause 18 and 25 - Citizenship

I have deliberately brought these two clauses together because they relate to citizenship in one way or another. The first sets out the conditions for Scottish citizenship, both those who inherit it automatically and those who are eligible to claim it. It provides that the particulars of this may be qualified by Act of Parliament, but I would simply raise the issue of dual citizenship and the extent to which they have considered the consequences for someone presently resident in Scotland, holding UK citizenship and the nationality of another state, and in particular whether the automatic provision could lead to them being forced to surrender one of their other two nationalities. Clearly the Scottish Constitution cannot be responsible for the continuing provisions of British nationality law on independence, but it seems premature to be discussing an automatic citizenship route before these matters are settled.

As for clause 25, I'm left flabbergasted. It claims, in essence, that if you are a Scottish citizen on independence, you are also an EU citizen under Art 20.1 of the TFEU. There are a number of problems with this. Firstly, only the EU may confer EU citizenship. Scotland can no more "confer" EU citizenship on someone than it can confer Ghanian citizenship on them. Secondly, the Treaty confers citizenship on nationals of member-states. Scotland is not a member-state of the European Union, and will have to negotiate to a point of membership. Even if we assume that an expedited agreement is reached in advance of independence, this provision in the Constitution is totally unnecessary. Those rights accrue to member-state nationals irrespective of whether or not national law explicitly provides for it. This is a superfluous clause. Get rid of it.

Clause 19-22 - International Agreements

Clause 19 is a puff-piece saying that Scotland will "observe", "promote" and "respect" international law and make lots of friends and be peace-loving. Unless the intention is to allow citizens to impeach Government officials for breaking international law, I see no point in this provision. The Scottish Government appear not to have considered the full implications of this. In their explanatory notes they merely state that this will "give [the UN Charter] further domestic effect" without explaining what further effect that is.

Clause 20 is one of the clauses that comes into force in advance of the Scottish Government's proposed "Independence Day". This appears in practice to be a provision intended to make sure the executive has the competence to engage in international negotiations to ensure continuity of effect of international relations to the greatest extent possible. Quite why this needs to be in the Constitution, however, given what is actually needed there is Westminster enabling legislation before independence, and given after independence these powers are inherent to the executive, escapes me.

Clause 21 concerns the ratification of treaties signed by the Government by Parliament. The provision is not especially controversial, though I would point out this is further evidence of ugly drafting. clause 21(2) "That does not apply to" should be nowhere near any statute ever.

Clause 22 re-iterates that Scotland will adopt a dualist approach to international law in much the same way as the UK does presently. It prompts the question, however, precisely why they think they need to give domestic effect to Art I of the UN Charter in clause 19, given its nebulous content.

Clause 23 - Nuclear Disarmament

This is clearly a popular policy among many who support independence and many who do not. I must confess, however, that I'm not sure that this is appropriate for, in particular, the interim constitution. The Scottish Government do not have an explicit mandate for nuclear disarmament. This interim constitution will be binding on whoever wins the 2016 Holyrood elections, and that might not be the SNP. This provision compels the government, constitutionally, to negotiate the removal of Trident from Scotland. This seems presumptuous, unnecessary and unhelpful with respect to any negotiations about the future of the UK's nuclear armed submarines in the event of Scottish independence. Particularly given there is no provision in this constitution to amend this constitution, this could, hypothetically, be binding another party's government to an SNP policy not voted on by the Scottish electorate.

Clause 24 - EU Law

This one is simple. It replicates the European Communities Act and the constraints that have in any case existed on the Holyrood institutions in relation to European Union law. I am not sure this should be or needs to be in the Constitution but it does no material harm.

Clause 26-27 - Human Rights

This one is interesting. The intention here is to extend the status of the European Convention on Human Rights to all matters covered by the Scottish Parliament. As alluded to earlier, this categorically ends Parliamentary sovereignty. The absence of, as the UK has in section 4 of the Human Rights Act, a domestic buffer in the form of the "declaration of incompatibility" means that an Act of the Scottish Parliament could be struck down by a Strasbourg ruling. It does not appear entirely clear, when taken together with clause 34, what effect this would have on Westminster legislation passed on reserved matters such as immigration and asylum or anti-terrorism provisions, which may have or would have been merely subject to a "declaration of incompatibility" but domestically lawful. This section also neglects to outline how judges should determine whether legislation is in fact compatible with the Convention. The Human Rights Act (s3) and the Scotland Act (s101) currently adopt two different tests: which if either functions under this Constitution?

Clause 28-29 - Equality and Children

The first of these essentially entrenches the principles of the Equality Act into the Constitution. Seems fair enough. The second is essentially one expression of the "welfare principle" with respect to Children, which requires the well-being of children to be considered in all public functions pertinent to them. I doubt it will make any significant difference beyond symbolism, though it may have an impact on immigration decision-making where the statutory provisions are presently very contentious.

Clause 30 - Island Communities

A symbolic nod to the Scottish Government having to "take account of the particular needs of island communities, having special regard to the distinctive geographical characteristics of each of the areas inhabited by those communities". A noble goal, but unless this is intended in some way to be judicially enforceable with respect to infrastructure projects and the like, something I doubt, this is just window-dressing and of questionable necessity in an interim constitution.

Clause 31-32 - The Environment and Natural Resources

The first clause is largely window-dressing, stating empty and meaningless, judicially unenforceable "right to live in a healthy environment" and requiring the Scottish Government and public authorities, in some vague and indeterminate way to address green issues.

The second says that Scotland's natural resources "must" be used in a sustainable way and which provides some form of vague, nondescript benefit to the people of Scotland. Quite what purpose this serves escapes me: can we sue the First Minister if he authorises below cost or too speedy drilling in the North Sea? This is endemic of vague and meaningless constitutional provisions in this document. It's all very well to say that Constitutions should outline the aspirations for a nation or a society, but is it really necessary to clog-up an interim constitution with these things?

Clause 33 - Permanent Constitution

This provision is important insofar as it sets out the obligations for the setting up of a Constitutional Convention, and the issues that the Act of Parliament doing this must address. Mundane things from composition to funding and structure are required to be dealt with. What is interesting is that this Act must be passed "as soon as possible" (whatever that means). Unless an Act were to be pushed through by the Scottish Government between March 2016 and May 2016, the legislation for this Convention would have to be passed by the first elected Parliament of Scotland. This would at least assuage any fears that the SNP were seeking to gerrymander that process.

Clause 34-36 - Transition and Miscellaneous

As mentioned earlier, clause 34 provides for continuity of effect of domestic law post independence, which deals with most Westminster statutes. We see the awful "That is subject to the constitution" non-sequitur which should be redrafted in sub-clause (2) but otherwise this is straightforward. Given the importance of the Human Rights Act and the integral impact of its functions on legislation, I think we need clearer guidance as to the intended transitional effects, if any of it, and particularly the tests it applies to statutory interpretation.

Clause 35 is the repeal of the Union with England Act. I don't see why this needs to be done by the Scottish Parliament. This means transferring to the Scottish Parliament the competence to repeal an Act of a Parliament which ceased to exist in 1707, which has no legal continuity with Holyrood. Westminster will, for clarity's sake, have to repeal the English Parliament's Union with Scotland Act anyway, so it might as well be repealed at a Westminster level under the same enabling legislation.

Clause 36 relates to when the different provisions come into effect. As mentioned earlier this somewhat negates the need for the entirety of clause 1 of this Bill.

Conclusions

There are some interesting and sensible ideas in this proposed interim constitution. There are some pointless and convoluted provisions in this constitution. There are some dangerous or outright undesirable provisions in this constitution. The Scottish Government clearly have not resorted to the (relatively recent) historical examples when it comes to enabling legislation to achieve their desired result. They have sought to attribute politically mundane functions of the transition most effectively dealt with at a Westminster level to Holyrood legislation, and have shoehorned in provisions of questionable worth to a permanent, never mind an interim, constitution. The weaknesses in this document are most apparent by what is not dealt with as much as what is. There are assumptions that the process towards the permanent constitution are going to yield certain results, which are far from guaranteed.

Most importantly of all, though, the Scottish Government need better draftsmen!

Wednesday, 30 April 2014

To see ourselves as broadcasts see us

A vexillological ménage à trois
Okay, so the European Parliament elections don't exactly have a track record of engaging the public in enthusiastic debate. The turnout in the UK was 34%. In Scotland it was even worse: 28.5%. They are often seen as an opportunity for a protest vote or to make a statement about domestic issues. It provides an opportunity for those outside of mainstream politics to shout rather loudly and incoherently without any semblance of actual accountability, to energise the already malcontent. That leads to the election of, at times, questionable and populist (such as UKIP), and in worse cases, overtly racist, representatives (the BNP).

The failure of mainstream political parties to engage the public as a whole with European politics is not a failure which is unique to the UK. It is, nevertheless hugely regrettable, considering the importance the EU has in international relations and on our domestic affairs. The EU is the forum through which we establish complex but economically vital relationships not just within Europe but beyond, with some of the largest and some of the fastest growing export markets in the world. It is the forum through which we bring about unprecedented levels of multilateral cooperation on criminal justice, the environment and globalising industries like financial services. As a coherent whole, it has both the economic and political clout to ensure the influence of the interests of European countries in a world where the big decisions are taken by the US, China, Russia and increasingly India and Brazil. It provides an important counter-balance to US dominance of western interests and without it, European influence would surely suffer.

Alas, the consequence of people failing to make the "positive case" for the EU has meant that our public discourse about it is overwhelmingly negative. A combination of misinformation, apathy and cautiousness on the part of its advocates has created a narrative and a set of terms for debate that make it difficult for mainstream parties to support the EU in a concrete and public way. The EU is always discussed in the context of reforming our relationship with it (usually code for taking powers back) or whether we should be part of it at all. Notwithstanding Tony Blair's proud EU credentials, Labour's relationship with the EU has always been ambivalent, even since the days of the EEC. Wilson's referendum was, let's remember, a get-out-of-jail-free card to prevent a split of the type seen within the Tories since Maastricht. In Scotland, we get a slightly softer narrative about EU hostility, and the SNP have spoken in the past about "independence in Europe" as being part of their vision. The message, however, is always timid and scarcely if ever made with enthusiasm.

With this in mind, I thought the Party Election Broadcasts of Scotland's main four parties ahead of the European Parliament Elections in May were instructive. I found them telling, not just from the perspective of attitudes towards the EU itself, but of Scottish politics more broadly.

Where is Europe?

The first thing I observed is that two parties don't seem to want to talk about the EU at all. In neither the SNP broadcast, nor the Labour broadcasts, were the words "European Union" even uttered. Neither of these parties, both nominally pro-EU, seem to have anything to say about how decisions are made in the elections we have in barely 3 weeks' time. No discussion about climate change. No discussion about our economic relationship with Europe. No discussion about the benefits to us as EU citizens. No discussion about the challenges the EU faces in terms of reform and helping us better to tackle the problems that remain stubbornly immune to borders. They seem to be banking on the inherent apathy people have towards these elections and institutions, in the hope that they won't be asked actually to do anything about it.

All this Referendum Malarkey

The second thing I noticed is that the SNP broadcast just talks about independence and the referendum. It's a rehash of previous general broadcasts they have used to support their raison-d'etre. It was rather light on actual substance in terms of new arguments for independence, repeated some pretty tired themes with which anyone with a television set in the last decade will now be familiar (still bashing on about Tony Blair's illegal war in Iraq, misleading platitudes about university education, ending "rule by Westminster politicians" and the like). If they were looking to use this broadcast as a springboard to winning a 3rd seat in Scotland on 22nd May, this was a pretty uninspiring way to do it, and its lack of freshness probably will not help them noticeably in the independence referendum.

It does, though, prove symptomatic of the one-dimensional outlook they are taking to politics in Scotland at the moment. Everything is seen through the prism of the referendum, and an opportunity to make capital there, while other meaty issues get swept under the carpet. Far from making the case for "independence in Europe" this broadcast was using one poll to affect another, something which others have pointed out may in fact fall foul of OFCOM's rules on Party Election Broadcasts. Rule 18 specifically provides that "the purpose of a PEB must not be to promote any particular outcome of a referendum". Given the only reference to a polling day in the broadcast is 18th September, you have to think they've got a point, albeit it is OFCOM more than the SNP that would have questions to answer.

Where is Scotland?

The third thing I noticed, first and foremost, was that the broadcast last week (23rd April) on behalf of the Scottish Labour Party, er, wasn't. It was the generic one put out by Labour across the UK. And, as I pointed out earlier, it has nothing to say about the EU elections. It is a three minute David Morrissey voice-over diatribe about David Cameron and the Tories, and their top-down reorganisation of the NHS with a swipe about the Lib Dems breaking their promises on tuition fees. I point this out because not only was it a London hand-me-down, but it was talking about things that are totally irrelevant to voters in Scotland, where different policies are pursued. It continued to give me the distinct impression that Labour just doesn't get devolution, the long-standing irony given they delivered it.

They don't know whether they like centralisation for solidarity or subsidiarity to allow for genuine difference. It's not just a problem for them in Scotland. When Ed Miliband talks about creating regional ministers in England, that's not a creed of localism. On the contrary it ignores the people and bodies at a more local level who already exist. His solution is not to give Yorkshire a man in Westminster, but Westminster a man in Yorkshire. Labour, in embodying this top-down concept of local power, find themselves institutionally at odds with the EU debate. Their problem is they don't know what the EU is for either. They can't talk about a vision for Europe or what they want to do with the EU, because they don't have a big idea for it. They don't really get the European principle of subsidiarity, so they don't know how to fight for it.

I had thought this was the only offering Labour would give Scotland, but it was brought to my attention that this evening they did in fact release a Scotland specific broadcast. It was much the same story, though. Combining the failures of their UK-wide broadcast with that of the SNP, they managed not to talk about the EU, mutter platitudes about the independence referendum and not say much else. Though not as explicit as the SNP broadcast, this too could arguably fall foul of the OFCOM rules for irrelevancy.

Partial credit for candour

At least the Tories had the courage to talk about the European Union in their broadcasts, both their UK-wide one and their Scottish one. They outlined the broad achievements they believe Cameron has secured in the EU, the broad areas they want to change about our relationship with the organisation, and what their policy is on a future referendum. You can disagree with their policies, but both their UK and their Scottish message actually dealt with EU-issues, and in a way which was at least relatively constructive rather than overtly hostile as we hear from UKIP.

An idea for Europe

Which leaves, among the parties still holding seats in the European Parliament from Scotland, the Liberal Democrats. Now of course I'm biased. But it's not as though the Scottish Lib Dems have an unblemished track record on Election Broadcasts. I still have the occasional nightmare thinking about Tavish Scott's wind-tunnel "Save our Police" disaster in 2011. But the Lib Dem effort this time round is pretty much the only one with a clear, unequivocal, positive message specifically about EU issues and how the EU works for us, pitched to a Scottish audience to deal with our concerns. It talks about trade, growth, employment, education initiatives like Erasmus, environmental standards, cross-border co-operation on crime and raising employment protections across the single market.

Will these broadcasts significantly impact the way people vote on 22nd May, or even if they vote at all? Probably not. But that's surely all the more reason for our political parties to take on the responsibility of using platforms like that to explain to people why they should care and why they should learn about what it is the EU does and how it affects their lives. If we treat the EU elections just as an excuse to propagandise about whatever side of Scottish independence or to ram home the mid-term-blues of the government of the day, is it any wonder the only people who are left caring about Europe are the nutters who want out of it? Scotland isn't as Eurosceptic as the UK as a whole. There is no serious danger of the majority of the Scottish population wanting out of the EU.

But if Scotland's two biggest parties won't make the positive case for the EU, either in its current form or reformed, it is only the cause of international co-operation that suffers. With every election that fails to break 40% turnout, we entrench the apathy without quelling the antipathy, on a popular mandate that withers the further we move away from 1975. If people don't trust or won't support, institutions which benefit them and their children, and their children after them, then our political class have only themselves to blame.

Tuesday, 29 April 2014

Putin' up a fight against civic nationalism.

National pride "must be a good thing"
I find it utterly bizarre that Alex Salmond thought it true, let alone prudent to say, that Putin having "restored Russian pride" "must be a good thing", least of all in the middle of March, just after Russian troops had violated Ukrainian sovereignty and seized control over barracks in Sevastopol.

The double standards that come from calling the NATO intervention in Kosovo "an unpardonable folly" or characterising the US/UK invasion of Iraq as an illegal war amounting to western imperialism, but waving away Russian violations of human rights and international law as "aspects of Russian constitutionality and the inter-mesh with business and politics that are obviously difficult to admire" surely can't be lost on any objective observer.

Even if Putin hadn't just invaded Crimea to "restore Russian pride", by what possible measure can pride in a state which routinely suppresses minorities, including those in Chechnya, has a track record of violating the sovereignty of other countries like Georgia, openly funds Assad to crush his own people, flying in the face of the international community, criminalises political and journalistic dissent, whips up a fervour of "Russian values" that involves oppression of the LGBT community, be a good thing?

At best he is guilty of a very poor choice of words. At worst he serves as an important reminder that "civic nationalism" is no more than a partial answer to the pernicious nature of nationalism. It says that there is something inherently good in political communities which found themselves on the basis of a nation, even if "inclusively" and that unity of a nation somehow, in and of itself, carries legitimacy and value. It doesn't. Nations aren't special. This is equally true of those who claim something inherent that makes the British nation uniquely special (here's looking at you Farage).

Nationalism otherises and poisons our debate about statehood and political community. We have a Nationalist party presenting the referendum as a choice between a false dichotomy of rule by "Westminster politicians" or by "the people" (as opposed to, you know, Holyrood politicians) as though a British state is inherently incompatible with Scottish national identity: that a Scottish state is the "natural state of being" for it as a nation. They say it's somehow absurd that people might have different criteria for what political community should be about, or that if they accept it should be based in nation, that Scotland is not necessarily the nation of which they conceive. We can have pride in a nation, but only in the moral content of its actions; not its mere state of being. Those values are universal; not inherent to the nation. It is never true to say that national pride "must" be a good thing and no equivocation as to the negative means by which that pride is achieved makes this so.

The case for Scottish independence has to move beyond nationalism, civic or otherwise. It's not about whether we govern ourselves; it's about how we decide who we are and what it means to govern ourselves. It's about founding political community on actual values that are subject to constant scrutiny, not cutting off our intellectual faculties with platitudes of nation.