Thursday 17 November 2011

Thought for the Day - Common Law

If, as Einstein once said, common sense is the aggregate of prejudices an individual has acquired by the age of 18, it begs the question whether the common law is simply the aggregate of prejudices acquired over centuries.

Monday 17 October 2011

Everything is Arbitrary

Well, okay, not quite. But this post was prompted by a Twitter discussion with Kevin McNamara (@WoolyMindedLib) in relation to the changes to constituency boundaries overseen by the Boundary Commission. The aim was firstly to reduce the number of seats in the House of Commons to 600 from 650 or so and secondly to equalise constituencies (that is, to make the number of eligible voters in each single-member constituency as consistent as possible).

The main bone of contention Kevin seemed to have was that whilst he agreed with equalising constituencies the 600 figure was "arbitrary". He agrees that there's scope to reduce the overall number of MPs, but he argued that it was better to equalise the constituencies first.

There are a few issues with this. First of all, 600 is no more or less "arbitrary" than any other number of constituencies. They could have picked 100 if they really wanted to, although most would argue that single-member constituencies that large would not be appropriate for a body wielding so much power. It may be that you think the number of seats is greater than is necessary to represent adequately whilst maintaining efficient decision-making But anyway, the main point is that 600 is no more "arbitrary" than 601, 623, 646 or 19.

The second issue is that you should equalise the constituencies before reducing the number of MPs. The problem with this is that you sort of, well, can't! By reducing the number of constituencies, you definitionally have to divide up existing constituencies into new ones or, well, disenfranchise all of those in the abolished constituencies! You can only change the number of MPs by changing the boundaries so that they represent a larger or smaller proportion of the electorate.

If you start a review with a view to equalising constituencies, you need a number in mind for roughly how many constituents you want in each constituency. The thing is, this is directly related to the number of MPs you're going to end up with. If A is the total eligible voting population, B is the target standard number of eligible voters in each constituency, and C is the number of seats available, then C=A/B. We have to assume that A is relatively constant, because we can't just invent new people! So the size of a constituency is inversely proportional to the total number of seats.

It is therefore no more arbitrary to decide the size of equalised constituencies than it is to decide the total number of seats. You are setting exactly the same thing. If you equalised constituencies first, then reduced the number of MPs later, you'd just have to completely redraw the boundaries again. It would be a redundant exercise.

Another arm of Kevin's argument is that we should be able to make constituencies more equal by setting the number of constituencies afterwards. Except you can equalise constituencies without changing the total number of seats at all! All you do is don't eliminate any constituencies, but shift the boundaries about according to population distribution. If anything, making special cases for smaller "communities" like the Highlands, as many try to argue in favour of, harms not the arbitrariness of the number of seats, but the very premise of equal constituencies itself.

And that sort of leads on to my more general point about this boundary review. Making substantial special cases of communities in representation fundamentally misunderstands the notion of an electoral system where individuals vote for electors. Members of Parliament represent constituents, not communities per se; their community representation exists only insofar as a community happens to be partly or wholly contained within their constituency. In truth, constituencies themselves are relatively arbitrary. Attempts are made not to create absurd situations where bits of a constituency are landlocked from the rest, or to prevent the drawing of boundaries so as to create an inherent advantage for one party or group. Gerrymandering can still happen even when the size of constituencies is relatively equal. For example, you could ringfence seats with predictable voting patterns so that they become uncompetitive even if the overall numbers are roughly the same.

What we observe about the current system is that the old boundaries created an inherent bias towards Labour, and that not all of that was itself down to unequal sized constituencies. This explains why Labour won a handsome majority (66 seats) off 35% of the vote in 2005 whilst the Tories fell considerably short (by 20 seats) with 36% in 2010. Equalising constituencies does not, in and of itself, eliminate this gerrymandering, although the actual act of redrawing the seats has the practical effect of reducing its effects. Whether that has served simply to gerrymander in reverse rather than undo that which already exists is a legitimate point of discussion. I think there is a case, from a Lib Dem perspective, to argue that this is the case, although I do not find this terribly convincing. The new boundaries can only really be judged by some actual elections to see how they operate in practice, and even then there are other variables at play there. I'm rather more convinced that the problems people are pointing to are rather more fundamental, and pertain to the necessary effects of single-member constituencies.

It would be a lot easier to end gerrymandering and to equalise voter influence if we adopted some form of proportional representation. Larger multi-member constituencies, chosen by preferential method, are much more flexible to deal with large variations in population density. If a natural region does not comfortably correlate with a fixed "number" in mind, you have more options to maintain a constant voter value. Not only can you increase or decrease boundary sizes, but you can also increase or decrease the number of representatives without inherently prejudicing any particular party.

Distribution and number of seats can absolutely affect to a greater extent the outcome of an election than a relatively modest change in the system by which our representatives are elected from FPTP to AV. But it is procedural in character and a question of administration of the existing system rather than an overhaul of the way we elect our members of parliament. The idea that we need a referendum every time the boundaries and number of seats are tweaked by the Electoral Commission is, I think both impractical and misguided. It is an administrative and not a substantive concern.

Sunday 9 October 2011

Home Rule and Booze - Just a normal Scottish Lib Dem Conference!

A speech or a suicide note... you decide
The day started at about 7am. After a raucous and alcohol assisted Parliamentary Debate at the GUU, and just three and a half hours sleep, I hauled myself out of bed in time to catch my lift to the Scottish Lib Dem Conference in Dunfermline. My total lack of organisation meant I had to get registration for Conference sorted out, including having a mugshot taken for my voting card that reflected quite accurately my lack of sleep. A brief bacon sandwich properly restored semi-consciousness and it was straight into the hall to begin proceedings.

Shortly before the first debate, I decided to submit a speaker slip on the off-chance I would get selected. I'd written a broadly supportive speech on the first motion (affirming the work to be done by the Home Rule Community Rule Commission) on the back of a Scottish Women Lib Dems leaflet (don't tell them!) in the canteen shortly before. I have to confess to being a little nervous, but what I had to say seemed to be well received, even if I did deviate a little from my script in the middle! I've enclosed what I intended to say, but it's not quite verbatim:
"Conference. This is my first speech at a Lib Dem Party Conference so I'll do my best not to disappoint! Our party is often perceived as constitutionally eccentric. Whilst our views on particulars are invariably well founded, be it on electoral systems or the dispersal of power to different levels of government, there is an increasing problem with showing people why it matters. The success of the SNP in the last 4 years has been predicated on an over-arching message to the electorate in Scotland, however misguided, that they are fighting their corner. In the mean time, we've lost our own liberal narrative for Scotland and have come to be seen as "tinkerers" and strained defendants of an extension of the status quo.
This Commission is the first significantly positive step we've taken in recent years to rectify this situation. Pulling down more powers, be it from Westminster or from Holyrood, means that people should have more control over the things that matter to them. It is more transparent, accountable and democratic when a body is responsible for raising what it spends as the custodians of local services.
I don't think the Commission is perfect, and we need to show that it's part of a wider federal approach, be that encouraging further devolution of power to other regions of the UK or indeed forming a proposal for an English Parliament. That is not to say that we should dictate to our neighbours how to run their affairs (perish the thought!). However we need to recognise that it is the asymmetry of the current system and the ad hoc approach we have taken to it, which has harmed the stability and credibility of the constitutional settlement. We need instead to incorporate this into a truly federal structure under a codified constitution. If we dwell on Calman for too long we risk accepting something with which, when it comes down to it, we consider insufficient.
I worry that this Commission will serve to delay what many of us already want to advocate: the Steel Commission with a lick of paint. In the interim, we must continue to push the political case beyond Calman and avoid finding ourselves on the small 'c' conservative side of this debate. Let's make sure that the people of Scotland see us for the real localists and federalists we are and not the Damascan converts to be found among other parties. With all this in mind I urge you to support this proposal."
There were a handful of other motions throughout the day, dealing with fuel poverty in rented accommodation, affirming support for the Human Rights Act and ethical trade, none of which threw up anything especially controversial. Tim Farron addressed the Conference with a clear message of empathy for our difficult predicament, but with a morale-boosting, positive message for Scotland's role in furthering liberal values across the UK. Michael Moore delivered a speech in which he emphasised Calman as a "stepping stone to Home Rule". I have criticised us overplaying the substance of the Calman Commission in the past and was never especially comfortable with rhetoric of Scotland's "settled will" or Moore's public incongruent approach to SNP demands for more powers. His message was, however, much more promising and I hope he and other Lib Dems at Westminster make it clear that Calman is not our end-game.

Willie Rennie's first conference speech as party leader was a rousing one. Opening with the story of the family of a young girl who needed alterations made to their home to deal with her medical condition, and the cumbersome response of the local authorities when a little flexibility was all they craved. Going on to expose the illiberal and centralising deceit of the SNP with respect to the police and other issues, and confronting the Catholic church about the issue of equal marriage, I really felt as though we have the makings of a persuasive alternative vision to put to Scotland in the absence of just about anything from Labour or the Tories. I was left feeling much more optimistic about our prospects going forward.

I do, however, have one regret about this year's Conference, and it pertains to the passing of the motion put forward in relation to adopting a minimum price per unit for alcohol. The party has, in the past, felt a degree of inertia towards what is an illiberal and ineffectual response to the problem of excessive alcohol consumption in our society. It disappointed me in particular, that Willie appears to be a strong advocate of this policy as well. He spoke with great passion about sending a clear message that we're serious about solving this problem. Other speakers expressed with considerable strength of conviction that the external harm alcohol causes and the correlation with cheap booze justified this intervention.

Lamentably I think this majority miss the point. Certainly many who consume large amounts of alcohol consume cheap, strong beverages in high volumes. But we have to ask ourselves what is it that motivates dangerous levels of consumption.

My contention is that a minimum price simply serves to make the poor pay more for alcohol, does not change attitudes, and only benefits supermarkets who currently sell alcohol more cheaply. High consumption of alcohol happens not because drink is cheap and readily available, but because of cultural attitudes towards drink ("binge" drinking) and because of alcoholism. The predetermined motivation is driven by reaching a certain level of intoxication and not a question of "how many units of alcohol can I acquire for £x". The desire for alcohol in large amounts is not simply a rational economic calculation; indeed if anything such considerations are overridden by social and psychological factors.

The reason that excessive alcohol consumption is linked to cheap booze is because it is after the above premise that the market operates. The cheapest and strongest booze is preferred because it's the cheapest available. This would still be true with a minimum price. The idea that increasing the price makes someone decide just to buy enough alcohol to become tipsy instead of legless has no real basis. People will still buy approximately the same amount of alcohol. The difference is they'll cut back on other things and spend more in doing so.

If you want to mitigate the impact of alcohol, there are two responses. The first is the amendment which was rejected. It was better than the motion, advocating use of higher duty levels to cover the cost to society of excess drink. This at least puts money into rehabilitation schemes instead of helping Tesco's shareholders.

But the second option is, for me, the truly liberal option. To tackle our drink problems we need not resort to what David Laws called "nanny state liberalism" in the Orange Book, but instead examine what it is about our society that makes drink so culturally attractive and by extension what makes our society susceptible to alcoholism. Why is it that alcohol is no less available or especially more expensive on the continent, yet the attitudes and behaviours in relation to it are not nearly so severe?

The liberal response is to better inform people of the risks, to enforce existing laws about serving minors and intoxicated persons more rigorously, and for local authorities to use more discretion as a licensing authority. Targeting the proceeds of alcohol duty to treatment and prevention is not incompatible with this approach, but arbitrary price pointers are. I am almost certain that this proposal shall not make any meaningful dent in alcohol consumption and health risks. It's a large mallet that cannot even crack the nut and I hope Conference finds an actual nutcracker by the next time we come to debate it.

Overall, Conference for this relatively new member was a principled, resilient and a friendly environment. I guess our task is to spread that goodwill across the rest of the country.

Tuesday 4 October 2011

Appeal to Ken Clarke - Join the Liberal Democrats

It's Conservative Party conference, and somewhat predictably, they're going at it hammer and tong at the Human Rights Act combined with another of their pet hate subjects, immigration. First Theresa May, a Home Secretary that occasionally threatens to make David Blunkett and Jack Straw seem reasonable, briefs in interviews with the press that she thinks the Human Rights Act is stopping us from deporting people, then she goes on to set-off Immeowgrationgate by claiming that a Bolivian man was only allowed to stay in Britain "because he kept a pet cat".

Never mind, of course, that she'd lapped up a craven Daily Mail article which massively distorted the truth of the matter (that the cat was merely one element of extensive evidence put forward alongside being in a long-term relationship that proved residence in the UK had become integral to his family life per Article 8 ECHR). Facts are an inconvenience for this Home Secretary. She's the same Home Secretary who stymied efforts to reform control orders properly and whose response to the riots was to knee-jerk into the default "flog" setting on the Tory bandwagon.

Never mind, too, that it's not the Human Rights Act that prevents the UK from deporting people. The Human Rights Act is substantially a domestic enforcement of the provisions of the ECHR to which we are a signatory. It is the interpretation of the substance of that document, and not the Human Rights Act itself, that gives rise to deportees being deemed to have had their right to a private family life infringed.

If the UK still wanted to deport these people, it could do so with astonishing ease. All it would take is an Act of Parliament (with sovereign force...) expressly empowering the Home Secretary to deport certain classes of persons notwithstanding any potential Convention breach. This would still lead to Strasbourg cases and damages payments being made relatively frequently, but that's no different than if they were to "get rid of the Human Rights Act" as either way they'd be denying individuals the right to a domestic remedy per Article 13.

If anything, wholesale repeal of the Human Rights Act would be even worse as it would expose them to more Strasbourg cases, and increase litigation costs across the board. Any replacement "British Bill of Rights" would have to confer exactly the same human rights or even make them more robust than the existing set-up, for this not to be the case. If it's to be the same: what's the point? If it's to be stronger: why get rid of the Human Rights Act at all: surely it would just need supplementary legislation or amendment?

Unless, of course, she actually wants to withdraw from the ECHR, the international treaty we the UK were largely responsible for drafting to restore basic liberty to a post fascist Europe? Well that would give us about as much credibility in the international human rights movement as Belarus, the last European dictatorship (save the Vatican...), or Russia and Turkey, whose pervasive disregard for the ECHR sees them account for over two fifths of member-state violations.

But it's not even that I'm finding so incredulous. What is incredulous, is that Ken Clarke, for all his public opposition to, well, just about everything Theresa May and the Tory flog-ems have ever said, is still in the Conservative Party. With Number 10 backing May on the specifics and many others being wheeled out to back her nonsensical stance, it seems clear that Ken Clarke's political sympathies are not shared by his peers.

I'm sure it's been suggested to him before, but the time may come when Ken Clarke makes a stand and joins the Liberal Democrats. Even Nick Clegg nominated him for the 6th Lib Dem in the Cabinet at our party conference, such as is his steadfast support for Lib Dem causes within the Cabinet. On so many policy areas his positions are more instinctively within the liberal tradition than a conservative or authoritarian one his Tory colleagues have to offer. Pro Europe, pro the Human Rights Act, pro sentencing reform, relative economic moderate, supported more liberal approaches to drug addicts in the prison system and more besides.

He's not perfect. His links to BAT will probably rankle a little with some in the Lib Dems and his loading of the justice cuts onto legal aid is certainly not a liberal response. Further, as has been suggested elsewhere in the past, he may advance liberal causes more effectively as an unsackable Tory within a Coalition than he would as an out and out Liberal Democrat. But a cheeky defection a few months before the 2015 election would serve as a massive morale boost to the Lib Dem campaign, help us to show the public why we're different and better than our Coalition partners and not just their lapdogs, and most importantly, he would be a political heavyweight with liberal leanings at home in the UK's only truly liberal party.

Go on Ken. You know you want to...

Oh, and I couldn't let this post end without showing you live footage of Theresa May's plan to deport every last cat owning Bolivian and subvert those sneaky Europhiles...

Saturday 24 September 2011

Ed Miliband's Tax Cut for Rich Graduates

So Ed Miliband has decided that Labour's policy on tuition fees is to reduce the cap in England from £9000 per year to £6000 per year. He says that this will be funded by more taxes on the banks and increasing the rate of interest paid by the highest earning graduates.

The reason? This is what he says, in an ever so pious dig at the coalition:

"We can't build a successful economy if the kids from all backgrounds are put off going to university."

Now we can debate the rights and wrongs about the Coalition policy until the cows come home. But let us look at what practical difference this actually makes. I have used the projections that deduced. I refer you to the red table at bullet point 17 "How much do you pay".

As we have established many times before, the loans repayment programme (thus in practice for a student, their tuition fees) has a 30 year limit, after which any existing "debt" is written off and the system effectively operated as a graduate tax on their earnings over the earnings threshold (currently £21k).

If a student earns less than £35k as their initial graduate salary, and their earnings rise to slightly less than £140k after 30 years, they will not have paid off their student loan, regardless of whether or not they actually chose a course that charged £6k a year or £9k a year. There is no appreciable link between what that graduate "owed" and what they "paid" for their University education.

Contrastingly if a student earns around £50k initial graduate salary and that rises with career progression and inflation etc. so after 30 years they are earning over £200k, they will pay back the whole of their student loan, and will do so well before that 30 year period elapses. In this instance, it therefore matters a lot more how much they "owed" and it correlates much more closely to what they "pay". The difference for that student taking a £9k course rather than a £6k course is that they pay about 50% more, because, funnily enough, they owed roughly 50% more.

So can you see where I'm heading with this? Yep. That's right. Lowering the limit on tuition fees to £6k has ABSOLUTELY no effect on the lowest-earning graduates, but represents a potentially HUGE saving for the most affluent of graduates! Since we have established that the funding system is effectively a kind of graduate tax, this means that Labour are advocating a TAX CUT on the richest beneficiaries of an English University education! The difference between what is owed is substantial enough that the interest rates they'd need to charge the richest graduates to make them pay the same, let alone more, would be of proportions compared to those they pay now.

And of course, this poses the question of where the Universities are going to plug the hole in the finances this creates? Are we to expect more direct state funding? Where is that coming from without increasing the deficit? "Tax the banks" Labour reply. Well here's the thing. Your bonus tax raised absolute pittance compared with the Coalition's banking levy. Just like with the very tuition fees you promised you would never introduce, you command no credibility for delivery.

But that is not even the worst thing about this sordid affair. The worst thing is that Labour, by engaging in this piece of political misrepresentation, are perpetuating the very myths that they have used to scare young people into thinking they can no longer afford to go to University under the Coalition changes. They are doing the very thing that the Lib Dems got crucified for: politicking with the tuition "fee" when they know full well that that headline figure is of zero relevance to the majority of graduates, for whom the repayment matters. They have scaremongered those from poorer backgrounds into believing they can no longer aspire to a University education and all the benefits that brings. Yet their own policy does absolutely nothing to help these people. There is nothing about maintenance grants, which are what really affect the ability of the poorest to be able to go to Uni. This throws money at graduates who are already benefiting in a huge financial way from their degree.

Remember, this is the Labour Party. The Party of Keir Hardie, of Nye Bevan and of Clement Attlee. Those men would be turning in their graves if they saw what this manipulative and regressive cabal led by Ed Miliband and Ed Balls has become.

The Labour Party. Party of the Poor? Words truly fail me.

Tuesday 20 September 2011

22 Days in May - A Major Lib Dem Concession

A few days ago I took ownership of David Laws' account of the negotiations following from the 2010 General Election result. It's a fascinating read (I'm about 1/3 of the way through) and I'd recommend people add it to their lists. My favourite exchange between the negotiating parties is one I hadn't seen in most other reviews of the account. I hope the publishers don't mind if I reproduce the following section (p117-118):
"We paused briefly to consider the issue of what we should say about Britain joining the euro. 'It will not surprise you to know that we are opposed to this," said George Osborne. Chris Huhne, a former MEP and euro enthusiast smiled, and said, 'Well. We have met none of the criteria for convergence, so this is not really an issue.' I shouted out 'Hurrah!', as I have never been a big fan of Britain joining the euro, and have never thought that there was the slightest chance of the British people supporting the euro in a referendum. Andrew Stunell lent forward and said to the Conservative team: 'I hope you realise that this is a very big Lib Dem concession!' We all laughed."
Some other interesting parts include some of the lessons learned from Coalition negotiating strategy in Scotland, with David Laws having been involved in the 1999 talks. It was a curious contrast of Labour's strategy in those talks, where they faced deadlock for about 4 days on a number of key policy differences before relenting, as opposed to desperately scrambling towards Lib Dem positions without the credibility of numbers in the lobby to back them in 2010. What was more intriguing was the way the impasse over the AV referendum was dealt with; being referred up to Cameron and Clegg to discuss so as not to compromise progress on other policy negotiations.

Sunday 18 September 2011

Summer's Over - Back to Uni

Well the summer's almost come to an end. University properly gets going again on Monday. We were relatively curtailed in our activities over the summer as my mum's been in hospital for quite a while, but it was good to spend some time back with the family. After some anxious waiting, my sister got her Highers results in and got a brilliant 5As. She should stand a good chance of getting to do her preferred course (Law) at University when she applies later this year. I'm really pleased for her as she worked hard and is really focused on what she wants to do. I spent two weeks working at my old school as a caller in their alumni fundraising campaign which was challenging but good fun.

I went along to the Pie and Bovril 5s in June, which, is a football tournament held by Scotland's biggest online football forum. It's always good fun and an excuse to have a few beers and a chin wag with the people behind the avatars. Whether it's a St Mirren fan in Cambridgeshire exile or a Linlithgow Rose maths geek, they're all a great laugh. This year the post-tournament venue was The Arc in Glasgow City centre which is a great venue and the weather was good enough for us to sit outside. One of the highlights of the evening was watching the initiation ritual to which the Welsh National Fencing Team were subjected, namely trying to eat a whole raw leek as quickly as possible without vomiting!

Dad and I spent the summer tentatively looking around for my first car. I've said before I really want a classic rather than just a new hatchback, and sharing my dad's enthusiasm for older cars, I was prepared to put in the time to restore an older car if required. The problem with it being based in Aberdeen is that there aren't that many cars within close distance to go and take a look at. I was especially keen to acquire an MG B or Midget, as my dad also owns an MGB GT which is a cracking wee car. We first took a look at a car we found on eBay that turned out to be a complete rust-bucket. The driver-side door wouldn't shut after we opened it and it would have required thousands of investment and substantial rebuilding to become roadworthy. A few weeks later we decided to take a look at another GT, which whilst very tired and in need of a fair bit of work was at least a solid enough shell. The guy looking to sell it runs a classic car business and had panels from other cars he was willing to include in any deal to help us with a rebuild project. We gave it serious thought but in the end we concluded that for the moment it wasn't something we could be sure of committing to, but it's definitely something we'll look at again. It was certainly a valuable learning experience and whilst I would want to consult my dad when buying my first car, I now feel as though I have a much better idea of what to look for as "tell-tale signs" of problems in a classic.

I caught up with old school-friends, most of whom I don't see so much of now they're in Edinburgh. I don't say it much, but they're all great people. I look forward to catching up with them all again at Christmas, if not before then. I'm sure I'll head across at some point over the next couple of months. Quick shout out to Chris Dyer who is on his languages year abroad studying in Malaga and Milan.

Since getting back to Glasgow I attended Nick Clegg's well documented meeting with Lib Dem activists in the city, replaced a broken cooker hood, been to a few Thistle games, and finished a summer marathon viewing of The West Wing. Whilst the summer has been light relief, it has latterly dragged on a little and I'm actually glad to be getting back to work at Uni. With this being my junior honours year, I'll be focusing on honours courses of my own choosing rather than solely taking core courses, which I hope will be more rewarding. I'm especially looking forward to my Law course about the Scots Law Human Rights context and my second semester Politics option on Egalitarianism and its Critics. Whilst it will be good to see people again, it will be a fair bit quieter this year, especially in semester two, as lots of people will be studying abroad. John's already in Toronto and seems to be enjoying himself with a frenetic workload and ample other stuff to keep him amused. He was impressed with Thistle in their 1-1 draw against Hamilton when I roped him along to Firhill in August so hopefully I can persuade him back when he returns! I'm looking to get more involved in the local Lib Dem and the Uni Debating scenes if time allows!

After a difficult start, Thistle are really picking up some form. Just yesterday we dispatched Ayr in a comfortable 4-0 victory. The First Division is really tight after 6 games, only 2 points separating 2nd top from 2nd bottom. We look really settled as a team now and McNamara could really make a big impact if we keep this up.

Who knows what the next year holds? Bring it on.

Tuesday 6 September 2011

Predictable Paradox - World Domaination!

I know with there are millions of readers out there just desperate for their Predictable Paradox fix. Well now you can visit us with our all new domain name,

Or, you know, you could just bookmark the actual site which is still hosted on Blogger anyway. Your choice.

Disclaimer: The acquiring of this new domain does not mean that any content on this blog will be any less predictable or any more paradoxical. Opinions as always are only attributable to the author, a sane madman, who may or may not cease to hold a view as soon as it is expressed. In exceptional circumstances, the view may never have been held and only expressed to amuse or irritate. Please don't litigate.

Sunday 4 September 2011

Thought for the day - Karl-Hermann Flach on Liberalism

No taboos exist for liberalism. For Liberals, any state of affairs is open for discussion and any opinion worthy of dispute. Liberalism therefore automatically desanctifies any subject which people with vested interests try to keep out of the general debate with spurious arguments. Any political and social progress starts with a deviation from established wisdom. In the eyes of Liberals, anyone who bans deviating ideas and persecutes the critical denial of the established wisdom as heresy hampers social and political progress.

Karl-Hermann Flach: Noch eine Chance fur die Liberalen (“Still A Chance for the Liberals”), Frankfurt a.M. 1971

Friday 26 August 2011

Nick Clegg's visit to Glasgow - Scottish Lib Dems as a newcomer

"Shame on you! You have mellowed.
Coalition's turning yellow!"
Er, aye right.

It got a lot more attention than it might have done. The media storm in a teacup over an incident involving some blue paint and a relapsed Lib Dem party member and a couple of politicians meant that this meeting of Liberal Democrats got noticed unlike the many others in recent days. Thankfully Nick Clegg and Willie Rennie took this infantile assault in relatively good spirit. I particularly liked Willie's response that he always wanted a blue streak in his hair but his mother wouldn't let him!

Having arrived in Woodside Hall about half an hour before the incident, I and many others were completely oblivious to what had happened until Clegg and Rennie arrived hastily if a couple of minutes late, to get the meeting under-way and explained their tardiness in good humour.

Having joined the Liberal Democrats in April or so, I've not really got myself involved that much in local campaigning or politics, and I didn't really know what to expect from this kind of meeting. I knew a couple of faces from other places, but the first thing I was struck by was the predominant sea of grey among the local party activists, with the occasional honourable exception. I don't know whether this is a sign of youth disaffection with the Lib Dems in particular or a general trend where parties are seen as less relevant to younger generations, but it was surprising nonetheless. The second thing that struck me was the despondent mood. This is a party that's lost the fire in its belly in Scotland. We run the risk of pointing the finger at each other for who's to blame for us getting tied up on the railway line while ignoring the oncoming train.

Nick set the ball rolling with a bit of narrative on how he felt we got to where we are just now, how he felt we got a lot of the big calls right in the first year or so of government, and with an attempt to paint a positive picture of our impact in government and why a comprehensive and full-term coalition was called for in the circumstances. It was perhaps a little sycophantic at the time, but in hindsight I can see it was a pre-emptive strike at what was about to thoroughly dominate the meeting. In the first block of questions, he's immediately asked, in not so many words, how to we prevent electoral oblivion next May in the Council Elections.

This was a common theme throughout. Clegg tried to appeal to memories of the past, when you could fit all the Liberal MPs in a London taxi. He built this narrative of the appeal of populism in times of strife, and how the politics of fear will always temporarily hammer our soft vote. He spoke at length about the need to portray the uniqueness of the liberal narrative instead of simply defining ourselves against the status quo conservative and state-reordering socialist traditions of right and left.

On a UK level, this made perfect sense. We've managed to protect the liberal traditions espoused in the European Convention on Human Rights, are implementing considerable slices of bread and butter constitutional reform, have made sure that changes to the NHS and the welfare system are done more thoughtfully and with end-users at the forefront and eventually these things will pay dividends. Maybe not to those who left us in the last 12 months, but certainly to the wider electorate when the economy settles. Even the tuition fees debacle should become less of an electoral hindrance when people see it in action. It's then that people will begin to realise that what we've been saying all along (that the new system is much fairer) is true. That the Tory right have been bleating on today about how the nasty Lib Dems are... wait for it... influencing policy in government (shock!) shows that it's not all a one-way street as some in the media portray. Clegg was strongest when he spoke of his anger at the way he's been vilified by the media, and if ever there were any doubts as to his profound belief in liberal values, the foremost being the sanctity of the individual and the protection of freedom, he definitely laid those to rest.

But what worries me is that Clegg really didn't seem to grasp the Scottish dimension in all of this. Across the UK we've maybe lost half the support we once had. But in Scotland we lost 2/3 of our seats in Parliament and almost 3/4 of our share in the popular vote in the Scottish Parliamentary Elections in May. We started losing deposits in a national election in places where we used to be fighting for constituency and list seats! And the common denominator in that is the SNP. They were like a footnote to his political strategy. That's not going to work in Scotland.

It's something much more fundamental up here. We've lost our liberal narrative. And this isn't something recent; it's something that's been happening over the last 3-4 years. The type of populism the SNP use to further their agenda is held together by the linchpin of their constitutional vision. Even if people don't buy into independence, they buy into the idea of the SNP fighting Scotland's corner. Our road to electoral recovery in Scotland isn't just about deficit reduction plans and civil liberties (important as they are). We need a linchipin: an end-game to fight for that shows the Scottish people we have their interests at heart.

One of the things Willie Rennie said was that he didn't believe the SNP won the election on the basis of their constitutional argument. In the strictest sense he's right. But in a Scotland where the political party policies on other matters are relative tweaks of one another for the most part the constitutional disagreements provide the framework onto which to paint a story, vision or narrative for the country's political direction. Whatever you may think of the substance or motive behind the SNP vision, it's mostly a positive one. Where has the radical edge of the liberal case for Home Rule, social reform and consensual political society gone?

We've thrown all our eggs into the Calman Commission, what one might call a "miserable little compromise" that leaves us politically indistinguishable on the constitutionals from Labour and the Tories and dull and gradualist to the sizeable portion of SNP support who disagree with independence. If the federal party cannot change tack in government then the Scottish party should anyway. It's time we made the positive case for full-fiscal autonomy. In our own way we need to show the Scottish people that Scotland can go it alone, but that it doesn't need to. Ask for control of illicit substances to be devolved to Scotland, so that we can find a less top-down approach to solving Glasgow's heroin problem. Ask for corporation tax and Crown Estate revenue to come under the control of the Scottish administration.

Articulate the localist narrative of our policies on policing, funding of public services and economic regeneration, but place it in a context of a consensual, open and free political society. Stress the need for us to break down political barriers and not just on this island. Embrace the global society and the global economy as a triumph for liberalism, free trade and the decline of tyranny. Lead the calls for a more region-sensitive immigration policy. Devolve and develop a regionally operated work permit scheme. Make it clear that even if immigration is a problem in England (it isn't) the doors of Scotland are firmly open for business.

These aren't even radical policy shifts. But they represent an emphasis that shows the Lib Dems have a vision for Scotland. We need to tie up the loose ends and mixed messages, stop worrying about what's happening at Westminster and articulate to what it is that we as a group of liberal individuals have to offer Scottish civil society. Love him or loathe him, we are not Nick Clegg. We are fighting a different battle on different territory in a different discourse. We need to stop grasping for excuses and people to blame because if we do it, everyone else will too. We need to become the consensus builders in Scotland but paradoxically that means breaking with a lot of voices whose vision doesn't extend beyond the status quo.

To come back fighting in Scotland, we have to embrace the good things in the SNP message (and there are a lot of good, liberal things in there) but articulate them through the prism of our transnational liberal narrative instead of focusing on just trashing the rest of it. We need to show people that devolution isn't just an idea for Scotland, but an idea for Glasgow, for Inverness, for Dumfries and Aberdeen. It's not about antiquated notions of identity politics, whether attachment to one national identity or another. It's about making representative democracy more direct: allowing local people to influence the things that matter most to them.

Our values are universal ones, but devolution is how we make them matter.

Thursday 18 August 2011

Quote for the day - Capital Punishment

"To kill a man in a paroxysm of passion is understandable,
but to have him killed by someone else after calm and serious meditation
and on the pretext of duty honourably discharged is incomprehensible"
Marquis de Sade

Sunday 31 July 2011

Quote for the Day - Finally Catching-up - West Winging It

Reverend: If our children can buy pornography on any street corner for $5 isn't that too high a price to pay for free speech?
President: No.
Reverend: Really?
President: On the other hand I do think that $5 is too high a price to pay for pornography.

Until this evening I'd never watched The West Wing. I've just signed over the rest of 2011 watching all 154 episodes...

On the Button

Button's inaugural victory for Honda
at the Hungaroring in 2006
My favourite F1 driver Jenson Button marked his 200th race in style with a victory in the Hungarian Grand Prix. There's something about Button that makes him a bit different from other drivers. He's exuberant without being brash or reckless, and he's a motoring purist.

When Vettel, Hamilton or Alonso drive a car, it's like they're highly skilled tamers fighting against a beast and more often than not coming out on top. It's quick, and in conventional conditions very effective, but it's seldom pretty. With Button, the car and driver become one. He is the beast. The response to a more testing track is the natural one; not a knee-jerk reaction. Button senses the grip; doesn't approximate. Where all the perks of modern technology are undermined by the elements, Jenson is the man who comes out on top. We need only look back to the 2009 championship to see how, with a balanced car he's in a class of his own.

Button victorious again 5 years on
It was fitting that Button should mark his 200th race with a victory, but all the more so at the same Grand Prix he won his first F1 race, and in mixed conditions then too. Here's to another 100 at least and hopefully a decent stab at the title if not at the tail end of this season, then next.

Thursday 28 July 2011

Quote and Analogy for the day - Beans, Beef and Hypocrisy

Stumbled across on the Virtually Naked blog a view that sums up my general feeling about politics and the Lib Dems in Coalition. Being called charlatans, sell-outs, lacking a mandate, ignoring our values and such like is something we've rather got used to. Charlotte Henry sums it up nicely.
"It hasn’t been easy being a Liberal Democrat in recent months. Being told you sold out your principles, when nobody ever bothered to actually find out what they were in the first place, has become rather grating after nearly 13 months."
Well quite. I've got a slightly clumsy analogy that I'm now going to hector people with for the next few weeks, and it's this:

A can of baked beans [liberalism] says "Hello. My name is Heinz. I'm a tin of baked beans: would you like to eat me?". The response comes "Look! A tin of corned beef [social democracy]! Let's buy that and take it home."

Then comes the time to eat it "Wait a minute, this isn't corned beef, this is baked beans. This corned beef manufacturer has sold out on its processed meat credentials!"

Meanwhile the poor bedraggled tin of baked beans keeps pointing out that if you read the big and small-print on his label, it clearly says "baked beans". If we were in fact Tesco Value baked beans, you could perhaps have accused us of failing to adhere to our true baked bean principles. But telling us we're not corned beef is just bizarre. We know we're not corned beef. Why the hell did you think we were corned beef? We said we were baked beans! If you don't like baked beans, stop buying them, but we think if you take the time to taste us properly they'll grow on you.

Tuesday 26 July 2011

DNA - Do Not About-turn

Just over a month ago at PMQs, Ed Miliband tried to bounce David Cameron into a u-turn over plans to end the routine retention of DNA samples given by those who are arrested but not charged with rape and other related offences.

At the time it was heartening to see Cameron refuse to back down on that front. From the outset, I should make clear that I don't think the Government's policy as it stood a month ago goes far enough to protect basic freedoms: those charged but never convicted will still have DNA routinely kept on file and those arrested but not charged can, on application have samples retained. My own position is pretty much exactly as stated in the Lib Dem Manifesto:
"Remove innocent people from the police DNA database and stop storing DNA from innocent people and children in the future, too." Liberal Democrat Manifesto 2010 p94

I recognise that the Coalition's position on this was more nuanced, stating:
"We will adopt the protections of the Scottish model for the DNA database." Coalition Agreement 2010 p11

And for the sake of completeness, the Conservative Manifesto said of DNA retention:
"The indefinite retention of innocent people’s DNA is unacceptable, yet DNA data provides a  useful tool for solving crimes. We will legislate to make sure that our DNA database is used  primarily to store information about those who are guilty of committing crimes rather than those  who are innocent. We will collect the DNA of all existing prisoners, those under state supervision who have been convicted of an offence, and anyone convicted of a serious recordable offence. We pushed the Government to end the permanent retention of innocent people’s DNA , and we  will change the guidance to give people on the database who have been wrongly accused of a  minor crime an automatic right to have their DNA withdrawn." Conservative Party Manifesto 2010 p80

For those who are unfamiliar with the Scottish system, anyone who is found innocent of any crime in relation to which they have given a DNA sample has it removed from the database (unless specifically challenged) after 3 years. The position in the rest of the UK is different; the limit is 6 years and was introduced under the Labour Government. Last year the Scottish Labour party's Holyrood delegation attempted to amend the Criminal Justice and Licensing (Scotland) Bill to bring Scotland into line with the rest of the UK, but the SNP, Lib Dems and Tories(!) told them where to go.

My concerns today arise with news that whilst DNA samples of innocent persons will no longer be stored on the centralised national database, they will be retained by some local forensic labs. Whilst I can appreciate that there may be practical difficulties in ensuring the total destruction of innocent persons' DNA data, I have huge misgivings about this. It is inconceivable that particular samples cannot be linked to individuals even if they're being held locally rather than nationally, and that's simply unacceptable if those people have never been convicted of any serious offence.

If the government proceeds on that basis, it's a cop-out. My message to Clegg, Cameron, May and Clarke is this: ignore Ed Miliband; stand-up for freedoms and Do Not About-turn on your Coalition agreement with this miserable little compromise.

Don't let the state turn you
into a binary series

Wednesday 20 July 2011

Quote for the day - Goldfish and Liberalism

Today's quote really strikes a chord with my own political philosophy.
"If freedom means anything it must surely include the freedom to engage in activities which others may consider unwise. This includes smoking, overeating, not exercising, driving "off road" cars in cities, even winning goldfish. A Liberal society is one where people should be free to "make their own mistakes". The Liberal Democrats must surely be consistently rigorous in applying the principles of personal liberalism in the future."

David Laws "Reclaiming Liberalism" (2004) - The Orange Book

Friday 8 July 2011

Telephones Telephones Telephones

It's been a week for telephones it seems. I started my summer job as a telephone campaigner at my old school Robert Gordon's College, where we've been getting back in touch with our alumni asking them for support towards the George Barton Bursary fund alongside some other projects. As someone who received a bursary myself, this is something I do feel quite passionately about, giving as many young people from all backgrounds the opportunity to have a first class academic education and the best chance to progress in life. The response has been positive so far, with lots of alumni contributing, and most being happy enough to share their experiences of school and what they've been getting up to in the big bad world since then. Some of the "old boys" have very vivid memories of receiving the belt for insolence, something I'm glad was outlawed long before my schooling began!

The big story of the week is, however, the explosion of the News of the World phone hacking scandal. It's been bubbling at boiling point for a while, and I'm surprised that it hadn't become a major story before now. The new evidence that Milly Dowler, the murdered schoolgirl's phone was hacked and messages deleted has provoked substantial moral outrage and rightly so. But I can't understand why the general public were so content to allow all of the previous (and for the most part, as serious) reported instances of this in the last 5-10 years or so to be swept under the proverbial carpet. It seems that as a society we don't care until we can tag it onto a scandal of personalities.

That was partly the problem with the connection between the Sheridan perjury trial and the behaviour of the NOTW in that little bubble. Phone hacking, whilst wrong in and of itself, doesn't undermine the truth or otherwise of the evidence obtained by it. Indeed one of the things we can probably say about phone hacking is that it shows just how far tabloid journalists will go to get a true, if not necessarily very good, story about someone of public notoriety. With Andy Coulson potentially facing perjury charges himself in relation to his comments about paying police for information and hacking phones, I'm struggling to see how, in and of itself, that undermines the reliability of Sheridan's conviction or undermines the assertion that he lied in his original trial. We shall have to wait and see how that appeal goes, I suspect.

The real story behind this, however, is two pronged. Firstly, this sort of illegal subterfuge by journalists (and not just at the NOTW) has been allowed to thrive and dominate (especially tabloid) news because of collusion and incompetence by the law enforcement agencies. That includes the police, who face serious allegations of bribery and a pathetic effort in their initial inquiry, and it also includes the Press Complaints Commission. The latter has been completely lackadaisical in its attempts to investigate complaints and allegations of wrongdoing not just by NOTW but also, for example, the Mirror Group's attempts at "blagging" for information and more generally in its quasi-judicial role of regulatory oversight. I'm pleased to see that it's going and that a full public inquiry is to take place and hopefully it won't pull any punches.

The second issue is the relationship between the media and politicians. There has grown this obsession with the idea that media moguls like Murdoch hold all the cards to winning elections and maintaining public support. This has made politicians fear and revere him which, in turn, gives him political bargaining power. They don't seem to realise that it's all a big con. Manipulating the dissemination of information and political direction is not the end game; it's simply a means to protect and perpetuate the success of News International.

The success of private media enterprises is not in and of itself a bad thing, and indeed it is important that we have a free press which is subject to no more stringent a law than any individual. What we must remember in trying to tackle this scandal is not that regulation (or in the view of some, lack thereof) has failed but that the structures and independence of the regulators, be they politicians or the police or the PCC, has been found wanting. The power isn't being balanced because the elites have engineered a situation where the press and politicians are one and the same.

Where is the impartiality and dispassionate investigatory zeal? Where is the political willpower to enforce existing laws on things like phone-hacking in their own right rather than simply to get a few good headlines or placate media pressure? Why is it that both the Tories and Labour continue to fall over backwards to socialise with Murdoch at a private party just a couple of weeks ago, before pretending to dissociate themselves days later when his organisation is no longer politically chique. Why is it that these politicians pander to the galleries about how awful this media culture is while employing people like Andy Coulson and Tom Baldwin, both of whom have form in the "dark arts".

No, the whole culture of media and politics has to change, and a bit more space between the big and powerful in the two areas of public life would be an excellent place to start. With the PCC getting done away with hopefully we'll see a better form of oversight and enforcement replace it. If the inquiries are to mean anything they have to dig out the corruption in the police or these practices will begin all over again.

A final thought on media plurality and the implications of recent events on the take-over at BSkyB. Plurality is hugely important and it's not the sign of a healthy and free democracy where news output is dominated by a small handful of powerful organisations and individuals. But Murdoch's empire, stretching from the tabloid Sun, the broadsheet Times, to Sky News television, for all its variety, is still responsible for considerably less of the UK's news intake than the BBC. If anyone thinks that giving him full control of BSkyB is going to have a marked effect on diverse news output, I'd give them more than just a sceptical look in return.

Murdoch is interested in making money, and BSkyB's operations have only a passing interest in news output as a relative afterthought: anyone who has ever watched how shit-amateur Sky News is must know that. As and when it goes through we should be concerning ourselves not with the plurality of journalism, for it is still very healthy in this country, but the quality and standards to which the profession holds itself. As for the NOTW? It was a shit paper. Sure it's getting replaced by the Sunday Sun, but even so, good riddance.

Monday 4 July 2011

Hate to say we told you so...

As someone who favours greater European integration (for example, taking down trade barriers and maximising freedom of movement), but thought the single currency was a disaster waiting to happen, it was quite satisfying to read this column piece by Mary Ann Sieghart in The Independent. It emphasises the economic illiteracy of fiscal union without political union, or as I like to style it, the Frankfurt arm without either the Strasbourg or Brussels arms of Europe. As long as countries have no control over their interest rates, but continue to have debt attributed to them and conduct socio-economic policy through their national governments, monetary union simply doesn't work. The disparity in economic structures would always lead to an artificial boom, a huge bust, and bailouts which throw good money after bad.

I'm probably in a minority of my own party on this issue, but unfortunately a lot of Lib Dems hold the Keynesian responses to crises in higher regard than my own Austrian perspective. For me even the British situation shows us the huge limitations of central banking and supports the assertion that simply boosting aggregate demand does not make an economy any stronger. The bigger the scale of central banking, the poorer the cost of borrowing reflects the real risk.

Monday 20 June 2011

The Deal

By chance I stumbled across one of my favourite contemporary (ish) political dramas on Youtube this afternoon. The Deal was the first part of the Sheen "Blair" trilogy, even though The Queen got considerably more attention. It's well worth a watch if you have 80 minutes or so to spare. I particularly enjoyed David Morrissey's depiction of Gordon Brown despite Michael Sheen's Blair getting the bulk of the attention. Although the story told is a liberal interpretation of something we don't really know a lot about (despite speculation) the attention to detail, particularly with some of Brown's mannerisms, are both convincing and sympathetic.

Sunday 19 June 2011

The more things change...

Stumbled across this photo in an old album, from when I was about 4. My sister remarked that my dress sense hasn't changed in the subsequent 16 years. I suspect it won't change much for another 16!

Where did it all go wrong?

Thursday 9 June 2011

Nick Clegg speaks his mind

It's well known that there's no love lost between Nick Clegg and Ed Miliband, but a brief exchange between the two at PMQs seems to have slipped under the radar. Nick Clegg appears to rebuke comments about private sector involvement in the NHS in the most unparliamentary of language!

UPDATE: Sadly it appears from further examination that he says "You were the ones who gave the private sector a free pass". I'm sure my failure at lip-reading was what he was thinking though!

Sunday 5 June 2011

Quote for the Day

Lord Hope of Craighead
"In 1776, Thomas Paine said that, as in absolute governments the king is law, so in free countries the law ought to be king – and there ought to be no other. It is our task to hold the executive to that principle. That is as true of the Scottish Executive as it is of the executive at Westminster."

Saturday 4 June 2011

Police Reform - More local not less

Those political anoraks among you will remember the stooshie about police reform during the Scottish Parliamentary election. Indeed the Scottish Lib Dem's very own cack-handed Party Political Broadcast seemed to talk of nothing but the future of Scotland's police force. Although it didn't seem to register with voters as that big an issue, the Lib Dems were very keen to set themselves apart from the other parties who backed a single, central Scottish Police force. The proposal was condemned by the Scottish Police Federation and has been viewed as unaccountable and unnecessary by those outside of the political establishment.

It is comforting to see a report published by Reform Scotland which slams the idea of a single force in favour of a much more locally focussed alternative. The report suggests that a single force "accountable" to the Justice secretary would completely ignore the variation in the rates and natures of crime across the country and that, contrary to SNP claims, it wouldn't even lead to long-term efficiency savings:
"There is no particular reason to believe that one police force would deliver cost savings from economies of scale. While it may be possible to save some chief constable salaries, it is just as likely that additional and more complex management structures would be required. Administration efficiencies may be possible, but these could also be achieved by sharing services and do not require the creation of a single force." (Page 26)
The report instead suggests that it would be better to change the existing 8-force system into a 32-force system which brings police forces back into alignment with current local council boundaries, rather than reflecting the old regions. It advocates budgetary and administrative responsibility resting with Chief Constables in local authorities rather than at the centre, which would improve local accountability and help to ensure that the perception of crime follows the downward trend of actual crime rates:
More local and accountable police forces that match local authority boundaries are more likely to lead to cost savings. The police forces would be accountable for their spending as well as their effectiveness, putting downward pressure on costs; smaller organisations would require fewer layers of management; and there would be opportunities to deliver efficiency savings in costs by sharing administrative and support services. These could involve groups of police forces and/ or other public sector organisations (including local authorities) with which the forces would share boundaries. (Page 26)
The report cites a number of systems in other countries, particularly in Norway and in Belgium, where devolving power to more local levels has produced efficient, locally trusted and effective law enforcement. The Scottish Government has said they will include the findings in their consultation. Let's hope common sense prevails and the SNP dump the absurd idea of centralised policing. Instead, let's make sure the regional discrepancies in the type and prevalence of crime are reflected in the allocation of resources through decisions made by people who are directly confronted with the problems on the ground.

Wednesday 1 June 2011

The Battle of the Nats - MacAskill's Supreme Misunderstanding

Lord Turnbull on the new
evidence in Nat Fraser's trial:
"if it had come to
light during the trial
it would have had to
have been deserted"
When Cadder saw the UK Supreme Court intervene over breaches of European Convention rights (as a devolution issue) in a Scottish criminal case, Kenny MacAskill was deeply scathing of what he perceived to be a profound attack on the independence of Scots law. He is at it again after the Supreme Court has quashed Nat Fraser's conviction for murder and remitted the decision over any retrial back to the High Court sitting as the Appeal Court. The apparent lack of understanding by MacAskill and others as to the constitutional context of this is rather worrying. There are three core elements which combine to explain not only why the UKSC is an appropriate forum to review cases like these, but also why opposition to its intervention is logically and legally inconsistent. The latter is especially true if, as is the case with Kenny MacAskill, the critics accept and even actively prefer that recourse goes straight to Strasbourg from the High Court.

The Act of Union - A UK Supreme Court is competent

Platitudes like "Scots law is independent" (invoked in a UK context) are lazily and all-too-frequently invoked in legal and political discourse. The context of a complex, multi-tiered international legal system renders it untrue. In practice Scottish legal autonomy was substantial until relatively recently, but I would tentatively argue that legal independence, far from being entrenched by the Acts of Union, has been a theoretical fiction since 1707.

That is not to say elements of the Scottish legal system lack substantial autonomy. Scotland has its own civil and criminal court systems and procedures and its own substantive law (e.g. the libel/defamation divergence). The problem is that many fail to understand the terms which underpin this autonomy. Two important parts of Article XIX of the Act of Union reads as follows:
"The Court of Session, or Colledge of Justice, do after the Union, and notwithstanding thereof, remain in all time coming within Scotland, as it is now constituted by the Laws of that Kingdom, and with the same Authority and Privileges as before the Union, subject nevertheless to such Regulations for the better Administration of Justice, as shall be made by the Parliament of Great Britain
That all other Courts now in being within the Kingdom of Scotland do remain, but subject to Alterations by the Parliament of Great Britain; and that all inferior Courts within the said Limits do remain subordinate, as they are now, to the supreme Courts of Justice within the same, in all time coming; and that no Causes in Scotland be cognoscible by the Courts of Chancery, Queens-Bench, Common-Pleas, or any other Court in Westminster-hall; and that the said Courts, or any other of the like Nature, after the Union, shall have no Power to cognosce, review, or alter the Acts or Sentences of the Judicatures within Scotland, or stop the Execution of the same"
The essence of this provision is hardly ambiguous. One of the major stumbling blocks to the passage of the Act of Union in the Scottish Parliament was the legal community's fears about Scottish legal institutions being assimilated into the English system. The provision protects against then existing English courts (and similar successors) from having jurisdiction to review decisions made by Scottish courts (i.e. the Court of Session in civil and the High Court for criminal proceedings). It further entrenches the existence and decision-making powers of said Scottish courts.

Why the criticism, then? It is simply factually inaccurate to characterise the UK Supreme Court as simply an "English" court. It came into existence through the consolidation of the judicial functions of the House of Lords and some of those held by the Privy Council, whose influence is not simply of English authority. It is composed of jurists from three "national jurisdictions" within the UK. It is a UK court arrogating "supranational" jurisdiction over the territory of England, Wales, Northern Ireland and Scotland. There is nothing in the Act of Union which prevents the development of such a court; indeed with respect to the Privy Council, the Queen is specifically empowered to retain and amend its functions as she sees appropriate under Article XIX of the Act of Union:
"after the Union, the Queen's Majesty, and her royal Successors, may continue a Privy Council in Scotland, for preserving of publick Peace and Order, until the Parliament of Great Britain shall think fit to alter it, or establish any other effectual method for that end"
Put simply, the Act of Union does not claim that any "Scottish" court commands absolutely final jurisdiction over any matter whatsoever. Certainly it provides that lower courts should not be elevated above their pre-Union positions. But the truth is that the UK Supreme Court, when dealing with matters in Scotland, is behaving exactly as the Privy Council did before it. It is no such inferior court! Nor too is it an English court under a contemporary guise. The UK Supreme Court falls outside of the scope of the terms of the Act of Union, thus the Act cannot exclude its jurisdiction in Scotland.

Privy Council's powers of review under devolution

Judicial Review of Devolution Issues
Privy Council 1999-2009
UK Supreme Court 2009-Present
There is no bar in principle to the UKSC reviewing matters from Scottish civil and criminal courts. What of the substance of the power of review? Clearly not all decisions are challengeable or else lower courts would be redundant. Certainly the High Court in Scotland (sitting as an Appeal Court) is the last resort of appeal in Scotland with respect to criminal matters, and it would be quite wrong, without specific empowerment by Act of Parliament to the contrary, for the UK Supreme Court to assume that position from it. But review is not appeal. It responds not to the court's decision, but to how it reached such a decision. Indeed in Allison v HMA [2010] UKSC 6 the Supreme Court opined that whilst they would have reached a different conclusion from the lower court, there had been no miscarriage of justice and that they were not in a position to overturn it.

The Scotland Act's construction provides for devolution of powers to subordinate institutions. In order to ensure those powers are not exceeded by devolved office-bearers, the Privy Council was empowered to review their acts and omissions. Acts of Scottish Ministers are covered, but so too are those of the Lord Advocate, at least in so far as he exercises powers bestowed by the Scotland Act rather than directly from Westminster legislation. It should be pointed out that such review powers were exercised by the Privy Council in criminal cases in Scotland (one such example being Flynn v HMA 2004 SC (PC) 1 in relation to sentencing) and there is absolutely nothing "new" about the UKSC responding to these petitions for review of devolution issues in criminal cases. This review is not appeal by the back door; it is of very narrow scope but a necessary consequence of attempts to reconcile Scottish legal autonomy within an accountable judicial framework.

The European Convention - which Court "knows best"?

Kenny MacAskill reckons UK Supreme Court justices'
knowledge of Scots law is "limited to a visit to
the Edinburgh Festival" - Lord Hope is not amused.
A consequence of the ECHR's status in law is that appeal to the European Court of Human Rights can only be initiated if all potential domestic remedies for review have been exhausted. In the UK the domestic effect to the Convention is provided predominantly through the Human Rights Act, but also in Scotland through s52 of the Scotland Act. The provisions are slightly different because they apply to different contexts. There is certainly a legitimate argument that Scottish institutions are held to a higher standard of review. Whilst a breach of the Convention oversteps devolved competence and renders any act a nullity with respect to the Lord Advocate, any act or omission which is initiated under UK Act of Parliament is not amenable to review (owing to the Westminster Parliament's theoretical supremacy).

Bypassing the UKSC and going straight from the High Court to Strasbourg not only fails to exhaust all potential domestic remedies, but it also fails to address the issue about which people seem so agitated. If the problem is that the UK Supreme Court is undermining the "supremacy" of the High Court (sitting as CoA) and by extension the "independence" of Scots law, the same is equally true of subservience to the European Court of Human Rights in Strasbourg, if not more so! Indeed it may have escaped Kenny MacAskill's notice, but the UK Supreme Court has two highly respected Scottish justices in Lords Hope and Rodger, who typically sit in every case relating to Scottish devolution issues. Both are former Lord Presidents and they are among, if not the, most experienced Scottish jurists in active service.

Compare and contrast with the European Court of Human Rights, which has no Scottish judges whatsoever. MacAskill's assertions that the Supreme Court somehow don't "understand" or "have regard to" Scottish legal tradition and structures fails to stand up to scrutiny and are frankly rather offensive. It is thoroughly inconsistent for the SNP to complain that the UK Supreme Court quashes criminal convictions because of ECHR violations whilst simultaneously arguing passionately in favour of that document and the court that was created to uphold it.

And finally...

Ehm... this one's definitely going
in the fiction pile
As a parting shot, I would like to point out the factual inaccuracy in a piece of reporting from Newsnet Scotland. Whilst openly partisan, their coverage is not usually inaccurate, but they incorrectly assert, as the basis for their article, that Lord Kerr is a Scottish justice and would have swung the balance of several Supreme Court decisions the other way on an all-Scottish panel. Lord Kerr is a Northern Irish jurist, has had no substantive involvement in the Scottish legal system and assumes a position in the Supreme Court off the back of his previous roles in Northern Ireland and of several years at the Bar in England.

Even if the assertion were factually accurate, it would accuse English judges of overruling Scottish justices at a Supreme Court level whilst conveniently forgetting that the ECtHR "overrules" the UK and Scottish courts on a whole host of issues routinely and with at most one domestic justice in a panel of up to 7. It all seems a little ironic that after the prisoner voting debacle was used to bash the "ignorant" foreign justices in Strasbourg, some of our politicians have turned on our very own.

If you've read to the end of this, well done, but for goodness sake get a life and go out and enjoy the summer (even if it is raining!)

Friday 20 May 2011

Bring on the summer!

Almost completely forgot to post updating on life!

My last two exams seemed to be fine (Business Organisations and Property Law) with relatively generous papers. As long as I haven't failed either Commercial Law or Business Organisations this also means that I'll never have to do any private law subject again as part of the LLB programme (a moment to celebrate as much as any). I've already been turning my thoughts to next year and honours more generally, but I'm sure I'll properly switch off for summer within a week or so!

Handed in my Junior Honours entry form for the Politics side of my LLB today, having woken up an hour late and missed the actual meeting explaining the course structure. Got a reasonably good idea what I wanted to do anyway so it shouldn't matter too much. I'm looking to do a unit on "Citizenship and Democracy" in Semester 1 and "Egalitarianism and its Critics" in Semester 2. I'm especially looking forward to the Egalitarianism module as, unlike the vast majority of stuff on the Glasgow Politics Honours list, it seems to have a fair bit of stuff that isn't left-wing obsessive. I'm especially looking forward to doing some work on Hayek and Nozick.

Further down the line I need to choose Senior Honours components to go with the General Paper. It's just a case of choosing any 2 of "British Prime Ministers since WWII", "Human Rights in Global Perspective" and "American Politics". I've pretty much already made my mind up that I want to do the Human Rights and Scots Law course for my Law Junior Honours and then Constitutional Law for my senior honours component. Then it's just a dissertation topic and title to sort out!

Going to do a bit of reading over the summer. I've also got a job in June manning the telephones as part of my old school's annual campaign to raise funds from benefactors.

It's my birthday in under a week's time, and it's almost time to leave the Teenages. There have been plenty ups and ample downs (mostly involving walking face first straight into the same parked minibus twice in a week) but on the whole, I think a respectable B+ is in order. On my birthday I'm going to try to put a post up mentioning something of note that happened in each of the 20 completed years of my life. I reckon it could be a great deal harder than it sounds, but I'll give it a bash!

Just think, though. This Earth has tolerated me for one fifth of a century... and there's probably at least another two, possibly three or four more you'll all have to suffer! The one thing I've found about getting older is that you don't become more mature; you just keep looking for more inventive ways not to grow up.

The Silver Fob Watch

For the first time in ages I read a novel cover to cover. I feel slightly guilty about this one as I received it from my Uncle (the author) for Christmas about a year and a half ago and I only just got round to properly opening it up yesterday! It's called "The Silver Fob Watch" and brings to life one of the more eventful Christmas breaks for 15-year-old protagonist William Harper.

What starts as a brief encounter at a railway station develops into an intense and treacherous quest, which centres around the protection of a complex but superficially unspectacular artefact. With a coming together of science-fiction and urban legend; myth and historical truth, the life of a very ordinary boy is changed indefinitely. As the plot unfolds, the bond between our adventurer and the mysterious Reuten La Vey thrives on an inexplicable trust, as they attempt to evade capture from either the authorities or the wealth-obsessed megalomaniac Simeon Blood. This journey fuses the worlds of science and fantasy: where the predestination paradox and self-fulfilling prophecy become one.

About Andrew

Andrew Cowie was born in Glasgow and is currently a journalist and newspaper editor based in Dunfermline in Fife. He has written more than twelve novels in addition to two collections of short stories.

This book, and other works by Andrew Cowie, including a crime-fiction series, were released through Lulu Publishing in 2009. If you are interested in reading this or other titles, or wish to contact the author, please let me know by email.

Sunday 8 May 2011

Das Hund ist nicht bedrohlich!

Another bizarre case picked up on Lowering the Bar. A shopper tries to sue a supermarket for damages arising from their failure to alert her to the risk of another shopper's 4-month old Dachshund puppy, which was supposed somehow to have scared her into falling into a freezer. Incredulously the jury and original trial judge upheld the complaint. Mercifully the Mississippi Court of Appeal (Penny Pinchers v Lenetra Outlaw) overturned the first instance award, saying:
"We must also consider that Sophie was a four-pound puppy at the time of the incident. Outlaw admitted that, when she heard the bark, she never turned to look at the dog. Instead, she started running toward the back of the store. She further admitted that she began to laugh when she finally saw that such a small dog had caused her to run into the freezer. While we agree with Outlaw that it is possible that the presence of a dog inside a grocery store could create a dangerous condition, the facts that she presented at trial do not prove that a dangerous condition existed here."

The man who sued himself

There's a cracking website I stumbled across yesterday called "Lowering the Bar". It takes a lighter look at the goings on in the legal world.

One particular article that amused me was a case where a man attempted to sue himself in order to receive a judgment that would reflect favourably on his tax situation (Lodi v Lodi 173 Cal.App.3d 628). On rejecting the appeal of the first instance decision, Sims J (at 632) turned to the issue of legal costs:

"We have considered whether respondent/defendant/beneficiary should be awarded his costs of suit on appeal, which he could thereafter recover from himself. However, we believe the equities are better served by requiring each party to bear his own costs on appeal"


Ends and Beginnings

Another multi-subject update seems in order. News in various places since I last posted.

First up, I've got my first 2 of 4 exams in this diet out the way. International Politics at the end of April should have gone fine and Commercial Law just yesterday seemed not to be too bad a paper. Just Business Organisations next Saturday then Property Law on the Wednesday and I'm off for the summer! Not a moment too soon frankly!

Then there's the various elections from a few days ago. Sadly, as predicted, the Yes2AV campaign was comprehensively defeated. It's sad, really, because the No campaign's propaganda and lies (even David Blunkett admitted they just drew up the figures for the "extra cost" on the back of a fag packet) really seemed to penetrate to most of the electorate. It speaks volumes that some of the few areas to vote in favour of AV were areas you might regard as having a significant "intelligentsia" population. Glasgow Kelvin, if my memory serves, was the only area to vote for AV in Scotland.

As for the main event, the Scottish Parliamentary elections, I've got mixed feelings. As a relatively new member of the Lib Dem, I knew this was going to be a pretty tough campaign, but the scale of the decimation (sometimes literally) of the Lib Dem vote in some constituencies was pretty galling. 5 seats left, Tavish Scott's resigned and everyone's a bit scunnered. A small crumb of comfort, perhaps, but at least we held enough seats to stay clear of the Greens and although a lot of deposits have been lost, I can't see the vote falling much, if any further. Time to rebuild for the Council elections next May.

As for the SNP though, I've got to say they have had a staggeringly good campaign. They outflanked Labour wherever Labour didn't manage to outflank themselves and had an unremittingly positive campaign, really catching the mood of the electorate. To see seats in Glasgow and South Lanarkshire fall from Labour's grasp is a truly historic moment. Scottish voters are finally waking up to the idea that Labour aren't the be all and end all of politics. Once they can abandon them once, they can do it again. It will be very interesting to see the dynamics of an SNP majority administration. Uncharted waters for both the Scottish Parliament and the Scottish people: we live in interesting times.

Anyway enough of politics. Back to what really matters: football!

Because of the University of Glasgow's propensity for organising idiotic exam timetables, I was unfortunate in that I missed the final game of the season at Firhill, with my big team and my wee team playing each other (Raith Rovers visiting). By the sounds of it I missed a cracker. Tommy Stewart, who looks like quite a good find now he's had a run of games, Doolan (joint top First Division scorer) and David Rowson all got on the scoresheet and by the sounds of it Rowson's goal was an absolute beezer. I really hope Rowson gets signed up for next season as he is just such a warrior in the red and yellow. He's been through a difficult few days with his father passing away and his goal must have been a very emotional moment for him.

A very upbeat result brings to an end a somewhat mixed season. It certainly started very badly, but things picked up late 2010 and I read somewhere that we have the best defensive record at home in Britain. Jackie McNamara's few games in charge have been on the whole pretty positive and should he get the manager's gig on a permanent basis I hope he can put some entertaining football on the park. It's particularly pleasing to see how keen he's been to bring the youngsters into the fold, albeit his hand has been forced by squad injuries.

We've done a fair bit of Jagscast recording over the last wee while, including our End of Season review, a few John Lambie Hall of Fame inductions and Manly J Panda even got an interview with Jaggie Mac. I wanted him to ask how he'd vote in the AV referendum but the Panda wanted to focus on dull stuff like football and whether he was more of a grey suit and brown brogues or trackies sort of gaffer. The cast is good fun and hopefully next season we'll be back on iTunes so more people can listen in routinely. Quick thanks to Vinny and Panda's parents for the excellent home made pizza when we did our end of season recording at their gaffe.

What's left... mum's in hospital again for a bit. She's been long overdue some time off work. When I was up over the holidays she was running on empty but, in her usual way, adamant that she'd get the Easter stuff done before resting for a while. Hopefully it won't be long before she's back to her good old moany self!

Dad's finally finished re-assembling an MGB of an MG Owners' Club acquaintance in his garage, so he's got room to put his MGB GT back in. I heard he took it out for a drive a few days ago, only for the fuel pump to pack in when he was in the middle of rush-hour traffic. This wouldn't have been a problem, but he had no phone, no tools, and no breakdown cover information. Kay had to call a friend to help tow dad clear. He's since bought a solid-state replacement fuel pump which should, he claims confidently, never need replacing! Where have I heard that one before...

I'm still on the look-out for an MG to call my own. It's slightly on the backburner for a bit while I look to see what work I can get over the summer. Just have to wait and see.

That's all for now. A couple of days of dossing about now before I have to crank things up again for the next exams!