tag:blogger.com,1999:blog-48246883631284076732024-03-17T08:23:34.598+00:00Predictable ParadoxGraeme Cowiehttp://www.blogger.com/profile/02704481523638679620noreply@blogger.comBlogger122125tag:blogger.com,1999:blog-4824688363128407673.post-23672049082233436332017-07-17T20:20:00.001+01:002017-07-27T12:12:57.462+01:00GrandadOur family has been dealing with some difficult news in recent days. My grandfather on my mother's side was diagnosed with cancer a few weeks ago and passed away in his sleep on Wednesday night. I had seen him for the first time in far too long a few weeks ago, but before the diagnosis. He had already been suffering badly with neurological problems and a recent fall that broke his hip. In some ways I'm happier he's no longer suffering because, brave a face as I put on at the time, seeing his frustration and pain was heartbreaking.<br />
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I was glad to see him before he went because we were so close especially when I was younger. Grandad was a massive figure in my childhood. Every weekend we would go from Kirkcaldy to Glenrothes. Almost every family holiday, usually in a bloody caravan, he and gran would be with us. If I was playing football, in the back garden or even at primary school when we moved to Aberdeen, he was there (slightly too) enthusiastically willing me on. We played golf (badly). We went to football games, including my first ever visit to Hampden. He got me interested in computing and built my first computer. He supported education in a big part because he left school very early to a fruit and veg stall before joining the Navy (serving in Malta where my mum was born) and had to fight to give his children and grandchildren the very best opportunities he never had. He helped me and my sister go to one of the best schools in the country, to play musical instruments and have lessons. He took me to see PSV Eindhoven's stadium on the only day it didn't rain when we were in Holland. He'd take me to HCS, the Rosyth-based manufacturing business he helped to run, and to Fibrehub in Freuchie, a technology company for whom he had a long association.<br />
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Ian Edmiston was a proud, self-made, entrepreneurial man who was fiercely loyal to his family and constantly willing them on to achieve all they could, making substantial personal sacrifices in the process. He wasn't perfect (goodness knows I've acquired some of his more stubborn "personality traits") but I want him to be remembered for the goodness in his heart and his bloodymindedness in the cause of others.<br />
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Probably the most embarrassing moment for me with grandad was when, as an 8-year old starting to get into football, I asked him to accompany me in the Aberdeen end at the CIS Insurance Cup final against Celtic in 2000. A lifelong Celtic supporter, grandad applauded the decisive finish in that match, insisting "but it was a good goal!" much to the chagrin of those around us! We left 5 minutes before the end...<br />
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It was perhaps fitting, my own footballing loyalties aside, that he should have bowed-out just after Celtic's "Invincibles" went the domestic season undefeated. Football was always my grandad's passion. One of the last things we did together was watch the highlights of the Scotland v England game on my iPad in his hospital room. I saw his face light-up at the sight of Lee Griffiths' two perfectly taken free-kicks, and for a moment at least, it was like his hurt and struggle had dissipated. I promised him if he kept trying with his physio, I would find a way to take him to a football game. I would like to think now that whenever I'm at Firhill he'll be looking down on me from somewhere, somehow, and that he'll still be proud.<br />
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I'll miss you, grandad.Graeme Cowiehttp://www.blogger.com/profile/02704481523638679620noreply@blogger.com0tag:blogger.com,1999:blog-4824688363128407673.post-22631085264706675592017-07-17T20:16:00.000+01:002017-07-17T20:19:32.529+01:00Life - An UpdateYou may have noticed both my blog and (to a slightly lesser extent) my social media activity has been more anodyne of late.<br />
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There are several reasons for that, but one of them is that, at the end of next month, I will be joining the civil service as a "Generalist" on its graduate Fast Stream programme. In anticipation of that, I have been slowly weaning myself off expressing views of a potentially party political and governmental nature. Call it a "transitional period" in which Graeme and the Statutory Civil Service Code are brought into alignment...<br />
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My first six-month posting is with the DWP in London, and therefore entails a change of location after spending eight years in Glasgow. I've found a place in Muswell Hill in North London, which is very nice, but will mean an adjustment and my first big move in 8 years. The Northern Line commute will be "interesting" but I'm looking forward to a change of pace and environment after spending a sustained period in academia so early on in life.<br />
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Speaking of which, the thesis is (almost!) done and I should have that submitted before I move south. Cutting a massive piece of work down to size is difficult and laborious, but does ultimately make it better and more readable. I'll need to come back up to Glasgow to sit my viva before the year is out but mentally I am looking forward to moving on.<br />
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People often wonder whether they'd do things differently if they had their time again. Had other opportunities arisen, I suspect I probably would not have gone and taken on a PhD straight after my undergraduate degree. Although it was a tremendous opportunity to be given the resources to embark on a project like that, the pressure, weight of expectation, and sheer extent of self-direction involved did at times get the better of me and contributed to mental health problems that I am thankfully now (mostly) on top of. Although the PhD itself can be a very lonely experience, the extra time at University did, I suppose, benefit me in non-academic ways. I made many friends I otherwise would not have, owned a beautiful classic car I otherwise would not have bought, and learned a lot about myself in those four years.<br />
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A couple of weeks ago, I sold my MG Midget. Unfortunately, circumstances dictate that it just would not be practical at this stage in life to keep a car, let alone one that was, shall we say, temperamental and impractical for a daily form of (mainly) city-based transport. NFA has gone to a good home, though, and I got a good stint out of her.<br />
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2017, then, has been and will be a year of considerable change. That's before I mention the passing of our stubborn family cat Mungo just before Easter at a grand 21 years of age, the arrival of my sister and brother-in-law's new kitten Merlin, my dad's new job as Presbytery Clerk that will see him and mum return permanently to Glasgow for the first time since 1991 and some sad news I'll save for another post.<br />
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Sometimes it feels like everything is happening at once, and you've not really got control of things. The last year or so more than ever has made me appreciate the importance of stability in life. Never underestimate it.Graeme Cowiehttp://www.blogger.com/profile/02704481523638679620noreply@blogger.com0tag:blogger.com,1999:blog-4824688363128407673.post-11112450770546329912017-06-20T16:38:00.001+01:002017-06-20T16:48:59.920+01:00Judicial Review of a Confidence and Supply ArrangementAn interesting story appeared in The Guardian today, in which it emerged that <a href="https://www.theguardian.com/politics/2017/jun/20/theresa-may-faces-legal-challenge-proposed-deal-dup?CMP=share_btn_tw">there may be an attempt to judicially review any agreement entered into by Theresa May's Conservative and Unionist Party and the Democratic Unionists</a>. Having failed to secure an overall majority in the June election, May needs the DUP, at a minimum, to abstain on all major votes if she is to command the confidence of the House of Commons and to get crucial Parliamentary bills passed.<br />
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The central contention of those seeking to challenge a "confidence and supply" arrangement is that, if the UK Government were to make concessions of particular political or constitutional salience, it would undermine the duty of the British Government to be "rigorously impartial" as to the exercise of sovereign power with respect to the territory. This undertaking is contained in <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/136652/agreement.pdf">Article 1(v) of the Belfast Agreement</a>.<br />
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I believe this challenge will fail, for several reasons:<br />
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<b><u>This isn't the Government acting</u></b><br />
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A confidence and supply arrangement is not entered into <i>by the UK Government</i>. It is instead a political agreement, between political parties, to vote in certain ways in a Parliamentary assembly. There is, I think, an arguable case that a <i>coalition agreement</i> might be treated differently, because it forms the pretext-upon which government ministers are appointed from different parties. Ministers are clearly a part of the government and the presence of DUP ministers might reasonably have been thought an act of <i>governmental</i> partiality were the Irish nationalist community not also involved in the arrangement.<br />
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Crucially, however, commitment in the Good Friday Agreement is concerned with the obligation of <i>governments</i> to remain impartial; it does not commit every political party, or every member of the legislature, in the UK or Republic of Ireland to avoid alliances, even formal, with one or more Northern Irish political parties where there is common purpose or interest. The distinction between acts of government and acts of parliamentary caucuses is an important one.<br />
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The inference of the contrary position - that this is a governmental and not a party-political act - is that no government can <i>ever</i> rely-upon the voting or abstention of a sectarian political party from Northern Ireland in order to pass a piece of legislation. This, intuitively, does not seem tenable. It would defeat the whole point of Northern Ireland returning representatives to the Westminster Parliament in the first place. That they are there is for a purpose: while Government may be expected to operate with impartiality in how it exercises its power with respect to the six counties and the devolved government and two communities there, Parliament is not so bound.<br />
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<b><u>The content of an agreement would not in fact compromise "rigorous impartiality"</u></b><br />
<b><u><br /></u></b>
Even if it is rejected that a confidence and supply arrangement is party-political rather than governmental, it still falls to show that the government's conduct would be unlawful. "Rigorous impartiality" is a bespoke phrase in the Good Friday Agreement. But what does it actually mean? It does not mean, surely, that a British Prime Minister cannot express a personal view that Northern Ireland should, in any border poll, choose to remain a part of the United Kingdom. The Conservative and Unionist Party, and its two Prime Ministers since the Agreement came into force, have never sought to conceal precisely this view. The clue is, in part, in their party's name. Clearly, then, adherence to a position on that question does not itself constitute falling short of "rigorous impartiality".<br />
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For an arrangement to compromise the impartial exercise of "the power of sovereign government" then, there must be something more substantial to it. The mere fact that a political agreement exists, and that it involves a sectarian party, does not mean that the UK Government is, by necessity, now partial concerning the question of "the power of sovereign government" in Northern Ireland. If an agreement saw the UK Government's programme undertake to act in ways that would (have a realistic prospect of) very clearly picking sides on an issue of contention being addressed at Stormont, or altered the protection of fundamental rights or some other part of the Belfast Agreement designed to protect the rights of nationalists/republicans in the six counties, we might reasonably conclude that "rigorous impartiality" has been fallen short of.<br />
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This would have to mean something like caving to a demand on parades or placing obstacles in the way of an Irish Language Act. Such commitments would likely, however, be in neither of the political interests of the Tories or the DUP. They are unlikely to be part of the agreement precisely because of how they would be received politically, regardless of any legal obligations.<br />
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<b><u>This is not a domestic legal obligation</u></b><br />
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Perhaps more practically, the "rigorous impartiality" provision is in all likelihood not a (domestically) justiciable issue, or at any rate a subject matter to which the exercise of governmental power attracts considerable judicial deference. The Good Friday Agreement is in essence a <i>treaty</i> between two sovereign states. Its provisions, in and of themselves, are not legally binding in a UK court. The Good Friday Agreement does, however, have a slightly special relationship with the law in the UK in that it is directly referred to in the Northern Ireland Act as the multi-party, political, basis for the restoration of Northern Irish devolution. This allows judges to, among other things, take into account the intentions of the parties in that agreement when interpreting constitutional statutes and the content of their provisions. This makes the GFA different from, say, the Calman Commission's Report, the Edinburgh Agreement, or the Smith Commission proposals in Scotland, all of which would likely be less easily used as constitutionally relevant materials for judges interpreting provisions of the Scotland Act.<br />
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Importantly, however, the Good Friday Agreement is not enshrined in domestic law. At best it represents political undertakings that frame the pretext for the Northern Ireland Act itself. The Northern Ireland Act does not commit the UK Government to behave with "rigorous impartiality" on this issue, nor does any other statute. If there is a potential breach of law here, it is of <i>international law</i> and not of domestic constitutional law.<br />
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This is important because, unless otherwise expressly authorised, it is not within the gift of the domestic courts of the UK to prevent a minister from undertaking their office's powers and duties (as they relate to foreign affairs) in contravention of international law. The prerogative power would be particularly important here, as might political forms of constitutional accountability (like Parliament's scrutiny of any deal). But as a matter of domestic law there is no hard constraint. This is the important difference between a judicial review in this case and, say, the judicial review in <i>R (Miller) v Secretary of State for Exiting the European Union</i> where what was being contested was the existence of a legal power in domestic law to make a notification under a treaty.<br />
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<b><u>Why an overtly common-law challenge would (probably) also fail</u></b><br />
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Any argument then, would rely-upon a contortion of common-law grounds of review. Perhaps they might maintain that, by failing to take into account the relevant considerations of the undertakings of the GFA, the Prime Minister had exercised her power improperly. Perhaps even they might argue that no reasonable Prime Minister properly applying their mind to the question would conclude that the grave constitutional (if political) undertaking of rigorous impartiality was compatible with whatever agreement was reached.<br />
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Even if these issues were regarded, in principle, as justiciable, it is difficult to see how a court would interrogate the decision so meticulously as to annul that of the original decision-maker (the Prime Minister). It would be very easy on her part to show that her decision has seriously contemplated the implications on the peace process, even if one might politically and quite radically disagree with her.<br />
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Perhaps more importantly, courts are generally deferential when it comes to constitutional disputes. The generous reading-in of materials in <i>Robinson v Secretary of State for Northern Ireland</i>, for instance, had the effect of relaxing apparently plain legal obligations to allow for political negotiations to take precedence during the crisis. A court that went out of its way to say that a Prime Minister was acting irrationally for going into an agreement of this sort would in effect be doing the opposite: giving legal properties to negotiations concerned with profound high-politics.<br />
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<b><u>Parting thoughts</u></b><br />
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This (potential) case is interesting from my perspective because my doctoral thesis is concerned, in part, with the judicial treatment of constitutional secession negotiations. I look at questions like, for example, what a court would do if the UK, Canadian or Spanish Governments refused to enter into secession negotiations to honour a (constitutionally valid) referendum result on the part of Scotland, Quebec or Catalonia to secede. Even in the Canadian case, where their Supreme Court articulated constitutional duties to "negotiate" a response to a clear result, however, they stopped short of saying that they would intervene in a dispute of that nature if those duties were not honoured.<br />
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It seems to me that the duty to uphold rigorous impartiality in Northern Ireland is of a similar order. The Courts will not intervene except in the most clear-cut cases of interests being compromised, and even then they will do so on the basis of overt statutory authority, not by reading-in the Good Friday Agreement.<br />
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This is not to diminish the political importance of those undertakings. We should have grave concerns about any government, whether formally or informally, that is dependent upon sectarian parties to get its legislative agenda through. Constitutionally, however, at best these references to the Belfast Agreement seem to me to restate the constitutional tensions that already exist. They do not solve them.Graeme Cowiehttp://www.blogger.com/profile/02704481523638679620noreply@blogger.com2tag:blogger.com,1999:blog-4824688363128407673.post-54159651372889960502017-06-13T00:50:00.001+01:002017-06-13T01:17:31.925+01:00On Hung Parliaments and ConfidenceThe Fixed Term Parliaments Act has no shortage of detractors and is often misunderstood. One of the (misplaced) criticisms that has been made of the FTPA is the effect it would have on constitutional convention and practice concerning the vote on a Queen's Speech or a Budget. I wrote this post to try to explain both how the convention concerning the appointment and resignation of governments operates and how, if at all, this has been affected by the FTPA.<br />
<span style="color: blue; font-size: large;"><br /></span>
<b><u><span style="color: blue; font-size: large;">The Historical Position</span></u></b><br />
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Historically, a Commons defeat on a major bill that was core to the governing platform of the incumbent government would be indicative that the government had "lost the confidence" of the House of Commons. In a Parliamentary democracy (unlike a presidential democracy) a government that does not command the confidence of the elected legislature has lost its legitimacy: its right to govern. As in any other walk of life, if a set of office-holders have "lost the confidence" of those that put them there, we clearly don't just mean that they are wrong; we mean that they are no longer fit to assume their position and to be custodians of their office. A Prime Minister is expected to resign: it is their constitutional duty to do so even if legally they are not required to.<br />
<span style="color: blue; font-size: large;"><br /></span>
<b><u><span style="color: blue; font-size: large;">But did they <i>actually</i> have to resign?</span></u></b><br />
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The only alternative to resignation that was historically open to a Prime Minister was to ask the Queen to dissolve Parliament and to bring about a new set of elections. It might reasonably be thought, however, that this option was only open to a no-confidenced Prime Minister, where there was no clear alternative individual capable of forming a government that would command the confidence of the House of Commons. In those circumstances it would have been open to the monarch to refuse that request, though it would have been extremely unusual for a monarch to refuse such a request and become embroiled in the political merits of a premature dissolution.<br />
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In practice, in any instance where a government was composed of a single party having close to an overall majority, including ones that had not long lost them, there would not be an obvious alternative individual from another party capable of commanding the confidence of the Commons. This would make a request to dissolve Parliament and conduct fresh elections a viable course of action. Although the monarch could <i>dismiss</i> their Prime Minister in that interim period if they so wished, in practice they would not do so. It is constitutionally viable, though not without its problems, for the office of Prime Minister to be vacant for a short period of time and for the Cabinet to govern in the interim at the pleasure of the Crown.<br />
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<b><u><span style="color: blue; font-size: large;">Can the Prime Minister try to stay-on without majority Commons support?</span></u></b><br />
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Where this gets interesting is in a hung-parliament where there is a large or power-broking third-party. This might mean they have a genuine "choice" as to who they wish to provide Parliamentary support to to enable either of the other two other parties to form a government commanding the confidence of the Commons. This dilemma emerged after the 1974 February and 2010 General Elections, where the incumbent Prime Minister's party fell short of a majority and came second by seats, but where the Official Opposition failed to win an overall majority. Both Ted Heath and Gordon Brown could, constitutionally, have attempted to introduce a Queen's Speech and to try to gain support from smaller parties to see it pass, rather than resign and recommend that the Leader of the Opposition should form a government.<br />
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If they lost that Queen's Speech, however, they would be expected to resign just as Prime Minister Stanley Baldwin did following the tabling of a motion of no confidence against him on the opening of the 1923 Parliamentary session. He had won the plurality but not the majority of seats in that election, and the other two parties tabled that motion. The resignations of Ted Heath and Gordon Brown were pre-empting a loss of confidence; they were taking the election result, rather than a vote of confidence, as a direct if indicative cue for what they anticipated Parliament would do.<br />
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This explains why Theresa May was entitled to continue to stay on as Prime Minister despite falling short of a majority and despite not yet having immediately secured a confidence commitment from the DUP. Under the current Parliamentary arithmetic, the Conservative Party not only is the most viable party to lead a government; it is probably the <i>only</i> party that conceivably could do so. After all, it only requires the DUP to abstain on a vote of confidence to win it if all their own MPs back it; a Labour-led administration would require the explicit support of the DUP (and several other disparate parties) to win a confidence vote. Only if it subsequently becomes clear that Theresa May could not count on the DUP not to oppose her in a confidence vote would an expectation of resignation emerge.<br />
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If a coalition or supply-and-confidence deal were to break down during a Parliament, the expectation would be <i>either</i> that an agreement in principle has been reached to form a new Commons majority with another other party (to form a new government) <i>or</i> that no party was able to command the confidence of the House. If the former is the case, the Prime Minister is expected to resign. It would be expected that the Queen invites the Leader of the Opposition (or whoever the coalition parties have agreed is best placed to lead a government) to form a government. If the latter is the case, the Prime Minister might be allowed instead to seek a General Election.<br />
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<b><u><span style="color: blue; font-size: large;">For whom ought a Prime Minister to have resigned?</span></u></b><br />
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<i>Technically</i> of course, the Queen can invite anyone to form a government and can ask for the resignation of a Prime Minister. By convention, and extremely sensible practice, she does not do so.<br />
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It is <i>possible</i> that someone else from within their own party would be the person best placed, rather than the Leader of the Opposition, in which case it would be open to the Prime Minister to offer their resignation to the monarch and <i>recommend </i>that she invite them to form a government instead. The monarch in modern times would normally seek to avoid involving themselves in any decision of this nature, but a Prime Minister would be putting them in that position if their recommendation to appoint internally was not the most-supported option by the House of Commons.<br />
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There is no immediate such example that springs to mind of this happening in British political history. What there is precedent for is a Prime Minister resigning as the leader of their political party before resigning as Prime Minister, once their successor has been appointed according to the relevant party rules. This was what happened with David Cameron's handover to Theresa May, Tony Blair's handover to Gordon Brown and Margaret Thatcher's handover to John Major. In those instances the successor to the Prime Minister was obvious: the leader of the party with a majority of seats in the Commons. It would have been inconceivable in 2007 for the Queen to invite David Cameron to form a government, or for her to ask Neil Kinnock to form one in 1990 or Jeremy Corbyn in 2016.<br />
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Unfortunately, without modern precedent for situations where a majority did not exist, the involvement of the monarch is inevitable should a Prime Minister recommend that a member of their own party should be invited to form the government but a sizeable part of the Commons objects that someone else (probably but not necessarily the Leader of the Opposition) should instead be invited. There would need to be constitutional rules put in place to preserve that institutional distance as things stand.<br />
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<b><u><span style="color: blue; font-size: large;">What counts as a motion of no confidence?</span></u></b><br />
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A Queen's Speech is clearly a defining question of confidence. It represents the government's proposed legislative programme for the Parliamentary session. Rejecting that is tantamount to rejecting its right to govern.<br />
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The annual Budget may be slightly different. Although Finance Bills are critical to the functioning of a government, the failure of a specific budget might not mean that the legislature does not have the confidence in the government to pass <i>a</i> budget. This is an observation that <a href="https://spinninghugo.wordpress.com/2017/06/12/mays-duty-to-resign/">SpinningHugo has made before</a>, though I would add a specific example in support of this premise. While governing as a minority government in Scotland, the SNP initially failed to pass its budget in January 2009. After making concessions to other political parties, it passed at the second attempt. That budget was not taken as an indication that the Scottish Government had lost the confidence of the Scottish Parliament, though repeated failures to get a budget through might.<br />
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Another way that the House of Commons can indicate that it has no confidence in the government is simply to table a motion to that effect and to win that vote. This was how James Callaghan was defeated in 1979. Believing that no other individual could any more clearly command the confidence of the House of Commons as elected, he asked the Queen to dissolve Parliament, allowing a fresh set of elections to take place.<br />
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<b><u><span style="color: blue; font-size: large;">What does the Fixed Term Parliaments Act change?</span></u></b><br />
<b><u><br /></u></b>
The Fixed Term Parliaments Act 2011 removes the prerogative power of premature dissolution of Parliament. The Prime Minister can no longer ask the Queen to dissolve Parliament.<br />
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Instead, if an early General Election is to be held, there must either be a vote in favour of one in the Commons supported by not fewer than 434 MPs (as happened to trigger the 2017 General Election) <i>or</i> if a very specific procedure happens.<br />
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If the House of Commons passes a motion by a simple majority saying:<br />
<blockquote class="tr_bq">
<i><span style="color: #660000;">"That this House has no confidence in Her Majesty’s Government."</span></i></blockquote>
And then 14 days pass without it passing a motion saying:<br />
<blockquote class="tr_bq">
<i><span style="color: #660000;"> "That this House has confidence in Her Majesty’s Government."</span></i></blockquote>
Parliament is dissolved and a General Election takes place.<br />
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This has, effectively, replaced an <i>executive</i> power to trigger an election with a <i>legislative</i> one. The Prime Minister no longer gets to decide whether or not a General Election should be held. This Act, therefore, by implication withdraws the alternative course of action available to a Prime Minister if their government loses a vote of no-confidence. Constitutionally, their <i>only</i> option is to resign. The next best placed person ought then to be invited to form a government. This will often be, <i>but does not have to be</i> the Leader of the Opposition.<br />
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<b><u><span style="color: blue; font-size: large;">What does it not change?</span></u></b><br />
<b><u><br /></u></b>
This transfer of power does not change the constitutional conventions that apply concerning whether or not a government should resign. The dissolution of Parliament, in itself, has no bearing on whether or not the Prime Minister is the best placed person to command the confidence of the Commons, even if, during an election itself, there is no sitting House of Commons to express confidence or no confidence.<br />
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This transfer of power does not change what constitutes a "vote of no confidence" for the purposes of determining whether or not a Prime Minister is under a constitutional duty to resign. This is a common mistake that both Members of Parliament and journalists have frequently parroted in the last few days. It says instead that, following a specific type of no confidence motion, either a government commanding the confidence of the House must be formed within a fortnight <i>or</i> an election must happen. The Act is completely and utterly silent as to what, constitutionally, ought to happen in that 14 day window.<br />
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<b><u><span style="color: blue; font-size: large;">So what should/could happen?</span></u></b><br />
<b><u><br /></u></b>
If the Queen's Speech is voted down, one of three things could happen:<br />
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<b><span style="color: #660000;">1. The Prime Minister resigns and the Queen invites the Leader of the Opposition to form a government.</span></b><br />
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If this happens, it is open to the Tories as the largest party immediately to table a motion of no-confidence under the terms of the Fixed Term Parliaments Act in any government the Leader of the Opposition attempts to form. The (then) Prime Minister would then have to (a) successfully form a government within 14 days and get a positive confidence motion passed; (b) resign; or (c) remain in his position while a General Election takes place.<br />
<span style="color: #660000;"><br /></span>
<b><span style="color: #660000;">2. The Prime Minister resigns and the Queen either delays in appointing a new Prime Minister or immediately invites another individual from the current government (probably a senior member of the Cabinet) to attempt to form a government.</span></b><br />
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If this happens, it is open to the combined party effort that voted-down the Queen's Speech to bring a motion under the terms of the Fixed Term Parliaments Act and do exactly as the Tories would do in scenario 1.<br />
<b><br /></b>
<b><span style="color: #660000;">3. The Prime Minister breaches constitutional convention and refuses to resign.</span></b><br />
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If this happens, Parliament has a remedy available to it that is constitutionally proper: it can table a FTPA motion of no-confidence and trigger an election.<br />
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<b><u><span style="color: blue; font-size: large;">What's the problem?</span></u></b><br />
<b><u><br /></u></b>
What is arguably unhelpful about the Fixed Term Parliaments Act is that the use of "confidence" in the simple majority election trigger may <i>itself</i> be understood as creating an obligation on the government to resign. In scenario 1, for example, this would mean the Leader of the Opposition, within literally hours of being invited to form a government and accepting, could be put under a constitutional duty to resign.<br />
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Common sense, however, says that this is clearly not what a motion under the Fixed Term Parliaments Act intends if it immediately follows the resignation of another confidence-defeated government. This is even more clearly not the case when you consider what <i>would have happened</i> before the FTPA was passed. If a Queen's Speech had fallen, and a Prime Minister requested the dissolution of Parliament, the monarch could, constitutionally, have refused that dissolution. In those circumstances, the Prime Minister would have still been expected to resign.<br />
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If, however, on attempting to form a government, the invited Leader of the Opposition concluded that they could not command the confidence of the Commons <i>either</i>, they too would then have asked the monarch to dissolve Parliament and bring about another General Election and it would be much more difficult, constitutionally, for the monarch to deny that request. That is what this 14-day period is, constitutionally, intended to do: give a new Prime Minister a chance to broker a deal to form a government.<br />
<b><u><br /></u></b>
The nomenclature could, therefore, be cleaned-up a little, but the Act does in fact separate perfectly constitutionally consistently, the questions of formation of a government from the calling of an election.<br />
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<b><u><span style="color: blue; font-size: large;">The real problem?</span></u></b><br />
<b><u><br /></u></b>
The only plausible problem with this arrangement is that the political incentives, for a long time, connected the powers and duties of the prime minister as they related to the formation of a government and the dissolution of parliament, and made them almost exactly concurrently exercised. The Fixed Term Parliaments Act breaks the two apart more explicitly. It arguably shifts the political incentives, moreover, on the part of a Prime Minister to take-up option three articulated above. It may now be much easier for a Prime Minister to defy constitutional convention that they should resign on losing a Queen's Speech, on the grounds that "well if they table a FTPA motion of no-confidence I'm only staying on for 14 days anyway before the people can decide". This argument might be especially potent if they represent the largest party <i>and</i> there is no realistic prospect of the Official Opposition forming an alternative government on the present Parliamentary arithmetic.<br />
<br />
In these circumstances, it is particularly important that political actors should bring pressure to bear that the existing and not excised constitutional conventions concerning the resignation of a Prime Minister are properly respected. And if they are not respected, as with any other constitutional convention, Parliament should make full use of its remedial powers by forcing the Prime Minister to hold a General Election, and then the electoral process should allow voters to cast a judgment whether the Prime Minister's abuse of power is egregious and indefensible.<br />
<br />
If your argument is that these protections are poorly enforced, then I agree. But that's an argument against relying upon constitutional conventions; not against the Fixed Term Parliaments Act. At best it is an argument that the office of Prime Minister should be appointed following an express nomination of a candidate by the House of Commons on a term that expires following the holding of a General Election. It would better guarantee that any <i>appointment </i>to the office of Prime Minister did in fact command the confidence of the Commons. This approach could, for instance, be modeled upon the approach to election of First Minister in the devolved assemblies.<br />
<br />
Under sections 45 and 46 of the Scotland Act 1998 for example, the Presiding Officer shall recommend to the monarch a nominated individual to become First Minister, as chosen by the Holyrood Parliament. Such a nomination takes place whenever there is a vacancy, or following an election. If no nomination is made within 28 days, the Parliament is dissolved and another election is held. In the event of a vacancy, the Presiding Officer can delegate the functions of First Minister to another individual for the duration of that vacancy. This approach might clean-up the ambiguity of what is meant by a "confidence" motion in the FTPA.<br />
<br />
The truth is that the old system that preceded the Fixed Term Parliaments Act would have handled this type of situation no better than the current one. It allowed Prime Ministers to escape resignation by appealing immediately and directly to the country, even when an alternative viable government could be formed from the democratically elected Parliament. These decisions are no longer a privilege the Prime Minister enjoys, exploiting in the process the political sensitivity of the Crown. It is instead for Parliament itself to decide.<br />
<br />
For a Parliament man like me, that is, when all is said and done, a no bad thing.Graeme Cowiehttp://www.blogger.com/profile/02704481523638679620noreply@blogger.com0tag:blogger.com,1999:blog-4824688363128407673.post-76958940179419936112017-03-28T23:13:00.000+01:002017-03-28T23:16:10.246+01:00Secession Referendums and the United KingdomMy PhD supervisor, Prof Adam Tomkins, is the John Millar Chair of Public Law and a Conservative MSP for Glasgow. We disagree on many things. One of the things we quite radically disagree on is the proper function of referendums in the British constitution: especially secession referendums.<br />
<br />
This disagreement can be illustrated in part by a recent statement he made on Twitter. Today the Scottish Parliament, with the support of the MSPs from the minority SNP Scottish Government and those of the Scottish Green Party, voted by a majority of 69 to 59 in favour of a motion. That motion formally requests that the Westminster Parliament should pass enabling legislation, which would authorise the Scottish Parliament to legislate for a second independence referendum. It indicates that the most suitable moment for that to take place would be between the conclusion of a proposed UK Brexit deal and the elapsing of the 2-year time period after which the UK regardless ceases to be in the EU. This would be between autumn 2018 and spring 2019.<br />
<br />
<b><span style="color: blue; font-size: large;">Clarifying the disagreement</span></b><br />
<br />
Adam takes the view that a referendum should not be held during that period. On the merits, I tentatively take the view that that timetable has no real advantage over a referendum held in 2020 or 2021, from just about anyone's perspective. Scotland will be taken out of the EU as part of the UK regardless, even if temporarily, under that timescale. Where I disagree with him is what the constitutional process should be for deciding whether and how an independence referendum should be held.<br />
<br />
<b><span style="color: blue; colour: blue; font-size: large;">Adam's Argument</span></b><br />
<br />
His argument is that:<br />
<blockquote>
<i><b>"Lawful, fair secession referendums are an act of statecraft. Different countries do them differently. In the UK we do them by agreement. Here, it's not for one side unilaterally to demand a secession referendum. Timing, and other matters, must proceed by agreement. This would be the case whether or not the losing side last time had vowed that such votes are "once in a generation""</b><br />
</i></blockquote>
I may well be drawing unfair inferences from this argument, but I don't think it takes us very far. Purely descriptively, he is correct, in my view, that as a matter of law a referendum cannot be legislated for on Scottish independence without explicit authorisation of the Westminster Parliament. This authorisation, legally, must take place either by way of primary legislation or under a "s30 Order" relaxing the range of devolved matters of the Scottish Parliament. On this point, then, I take his side rather than that of other Scottish legal academics, who argued last time that the Scottish Parliament might not need that consent, because they disagreed that a Referendum Bill would "relate to reserved matters".<br />
<br />
The problem here is that this legal starting point tells us almost nothing about who should be allowed to call a secession referendum and in what circumstances, which is the nub of what people are actually and substantively disagreeing about. It also does not tell us anything about what principles should govern when legislatures should be prevented from authorising those referendums. We have no answer to the normative question as to how the process ought to go forward, or not go forward. We have only a shell, unless we are to infer from the default position of the Scotland Act that the intention is to confer a veto power on the Westminster Parliament. If we believe it should have a veto, we must squarely confront the reasons that it should have that veto: what interests is this veto designed to protect, and is the veto necessary to protect those interests?<br />
<br />
<b><span style="color: blue; colour: blue; font-size: large;">The UK "approach"</span></b><br />
<br />
Adam maintains that constitutional practice in the UK requires that referendums on secession should only take place "by agreement". This is a strongly contestable claim and one that is wanting for precision (though the standard disclaimer of "Twitter only allows 140 characters" does of course apply). He also says that our constitutional practice is different from other countries (one example might be Canada, where provinces have no legal bar on a referendum) though this is a descriptive observation; not a normative justification.<br />
<br />
One reason Adam's descriptive claim is contestable that he is basing this position on, specifically, the way the 2014 referendum was held for Scotland, and not on the basis of a UK-wide constitutional norm. The Scottish Parliament had no say, for example, over whether and subject to what conditions the UK's secession referendum from the European Union should be held. It is not obvious that the UK Parliament should have power over a referendum on, say, an area normally falling within the competence of a devolved legislature either: there is clearly something unspoken here that is regarded as special to secession referendums.<br />
<br />
Any referendum on the holding of a border poll for Northern Ireland to decide whether they should become part of Ireland is not subject to intergovernmental negotiation; on the contrary, there is a legal duty on the part of the Secretary of State for Northern Ireland if it appears likely to him that a majority of those in Northern Ireland wish to leave the UK and become part of the Irish Republic. He is legally required so to act, even if the majority of those elected at Stormont are against the holding of such a poll. Although the National Assembly of Wales would also probably not have the competence to hold a secession referendum, the scheme under which it has devolved powers is completely different from that of Scotland and it does not have the same kinds of restriction.<br />
<br />
Moreover, other territories with a UK relationship have completely different norms that govern the circumstances in which secession referendums may be held. Gibraltar and the Falklands Islands, for example, do not need Westminster consent to hold a referendum on secession. When the UK refused to recognise the Western Australia secession referendum of 1933, it was not because it had denied dominions the right to hold such plebiscites, but because the Commonwealth of Australia itself had refused Western Australia that power.<br />
<br />
My point here is that, if we are talking about strict constitutional law, the UK has no common method of settling this question at all. The Edinburgh Agreement was merely one way of ensuring a fair and legal referendum was held; it's not the only way and it's not a norm that we have to abide by.<br />
<br />
<b><span style="color: blue; colour: blue; font-size: large;">What norms do we have?</span></b><br />
<br />
But if you do think it is a norm we should abide by, I think we have to be much clearer about what it involved, what norms and precedents it set and whether those norms are and ought to be legal or merely in some looser sense constitutional. We would need compelling reasons, constitutional reasons, not just political ones, to depart from the approach we took last time.<br />
<br />
Adam says that "it's not for one side unilaterally to demand a secession referendum". But who are the "sides" here? Do we mean it's not for one Government or for one Parliament so to demand? Or do we mean political parties or caucuses? This is important if we are making normative claims about what, constitutionally, should happen. What has happened here is that the Holyrood Parliament has "demanded" the power to hold a referendum, though it is not acting "unilaterally" in the sense that it is not (yet) purporting to hold a referendum without the necessary legislative consent of the UK Parliament. The Members of the Scottish Parliament who oppose the holding of a second referendum have a different constitutional role from that of the UK Government or the Members of the UK Parliament, even though they may, many of them, share party allegiances. The question "should a referendum be held" is not the same as the question "should the Scottish Parliament be allowed to hold a referendum".<br />
<br />
The failure to treat those questions as distinct fudges this debate considerably. It would be constitutionally consistent for Unionist parties to say that the Scottish Parliament should be allowed to decide whether or not to hold a referendum, without saying that they believe such a referendum should be held. They may look politically inconsistent if they vote for one but against another, but political deftness is not a defence for eschewing constitutional norms.<br />
<br />
If Adam and others are of the view that the Edinburgh Agreement provides a framework or precedent for how we should proceed, we need to look behind the mere fact of disagreement about whether a referendum should be held and to look instead at what constitutional principles guided the conclusions of the UK Government last time to accept that a referendum should be permitted to be held by the Scottish Parliament. There are two clues to what drove this. The first is the acceptance of the existence of a political mandate to hold a referendum. Bluntly, we need to be clear exactly what the minimum thresholds are here. Is it sufficient for the Scottish Parliament to vote in favour of either having or exercising the power to create a constitutional duty to take steps to enable that to happen? If not, why not? And what additional expectations or qualifiers, constitutionally, are we insisting upon, and why? The second is how we establish the existence of a political mandate to give effect to other constitutional norms, particularly conventions.<br />
<br />
<b><span style="color: blue; colour: blue; font-size: large;">Political Mandates</span></b><br />
<br />
Constitutionally, the UK is quite opaque about what constitutes a political mandate for the purposes of constitutional conventions that guide the behaviour of legislatures and governments without courts getting involved. The Salisbury-Addison Convention refers to proposals contained in the governing party's manifesto, for instance, but it provides little if any guidance on what should happen in the event of minority or coalition government. The UK Parliament did publish a Joint Report of the Commons and Lords into constitutional conventions in October 2006, in which precisely this issue was raised, but there was disagreement as to its scope.<br />
<br />
On one view as long as a party is able to form a government commanding the confidence of the Commons, Salisbury-Addison applies; on another it only applies to outright majority governments. The honest truth is we do not have a coherent set of principles to explain how and to what extent this convention concerning the existence of a "political mandate" transfers, if at all, from Westminster to Holyrood, given that the relationship between Commons and Lords is very different from Westminster and Holyrood. It is our "best guess" but nothing more than that. This lack of clarity means we do not have a clear answer about what to do with a minority Holyrood government on an issue, even where enough support from opposition parties is gathered to gain support behind a manifesto proposal. The UK Government opposed the holding of a Scottish referendum before 2011 in the absence of a Holyrood mandate: what was it about that Holyrood election that changed things? How do we decide that a referendum should be allowed to happen is not the same as asking how we decide whether a referendum should happen.<br />
<br />
<b><span style="color: blue; colour: blue; font-size: large;">What must be agreed and by whom?</span></b><br />
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The Edinburgh Agreement itself did impose limits and restrictions on the manner of the exercise of a referendum power. It placed a time limit on its exercise, but did not prescribe a date. It limited it to a binary question, but did not prescribe a wording. It prescribed some of the rules and institutions applicable to the referendum, but did not set its franchise or dictate its campaigning rules.<br />
<br />
The Edinburgh Agreement, insofar as it articulated principles at all, said that most of these matters were "for the Scottish Parliament to determine". If "agreement" is the basis on which secession referendums is to be held, and we base that principle on the constitutional practice of the Edinburgh Agreement, we must surely also take into account the constitutional practice of that agreement too? If a second referendum is to be held, we need compelling reasons other than political expediency for explaining why the UK Government should have more of a say over the terms of such a power than it did last time around.<br />
<br />
This, in my view, means that it would be constitutionally inappropriate (though clearly not legally incompetent) for the UK Government to use its position in the UK Parliament to insist upon controlling the franchise of a second referendum. There seems to me to be no logical nexus between who may vote in the referendum and whether or not it should be held. It would also be very suspect, save to exclude ambiguity or bias, if they were to insist on a role in setting the question beyond making it a binary choice. It would in any case be logical on the Scottish Government's part for pragmatic reasons to use the same question as last time given the Electoral Commission said it was intelligible and not biased.<br />
<br />
<b><span style="color: blue; colour: blue; font-size: large;">Timing</span></b><br />
<br />
The only area in respect of which the UK Government is arguably on firmer ground is with respect to the timing around which a power may be exercised by the Scottish Parliament. Even then, we need a constitutional argument for why a power over timing justifies an outright veto over whether a referendum should be held at all. Put simply, what constitutional principles are protected by letting the UK Government determine when, at all, the Scottish Parliament can hold a referendum? This question is, again, not the same as the question when should the Scottish Parliament hold a referendum.<br />
<br />
This question also breaks-down into a further inquiry: what kinds of control over the timing are necessary to protect fundamental constitutional interests? Should the UK Government be allowed, <i>in extremis</i>, to dictate the date? Should they be allowed to impose a time limit? Should they be allowed to impose a minimum waiting period? If there are additional concerns about a referendum taking place during a time of constitutional uncertainty (with Brexit negotiations) or that one is held too soon after a previous one, just what, in the terms Adam puts it, is it that has to be "done by agreement" between Governments and Parliaments, and what it is that has merely to be "done by agreement" between Members of the Scottish Parliament? What aspects of this process can the Scottish Parliament not be trusted to get right?<br />
<br />
These are questions that the UK Government have not answered. If a power on restricting the timing of a referendum is not itself one that is subjected to checks and balances, it is in essence a legal veto. That is a drastic position that should demand clear constitutional justification, not just a descriptive statement of constitutional fact.<br />
<br />
<b><span style="color: blue; colour: blue; font-size: large;">Conclusion</span></b><br />
<br />
Saying that referendums must proceed by agreement does not tell us how they ought to proceed, and it does not tell us what constraints ought to apply, what it is reasonable to insist upon and what we should do if people cannot agree. Without those constraints referendums aren't "only held by agreement" at all. You are instead giving a partisan veto to a political institution dominated, structurally, by pro-Union politicians, and you have to provide a constitutional, not just a political, defence for that.<br />
<br />
I do not think it is sustainable to make a <i>constitutional</i> argument against Holyrood being entitled to legislate for a second referendum on Sturgeon's timescale unless you reject, and reject openly, honestly and clearly, the notion that whether or not Scotland should be an independent country is ultimately a decision that should be for the Scottish people to choose or not to choose to take. It involves the rejection of the Claim of Right, the political articulation of the idea that the UK is a union constitution, not a unitary one, and that it is the sovereign right of the Scottish people to determine the form of government suited to their needs. The Scottish Parliament is the only democratically elected legislature that provides a representative basis for an expression of the will of the Scottish people.<br />
<br />
And you know what? It's fine to reject that. But given it is the sentiment upon which much of the political legitimacy for the devolution settlement rests, good luck with that.Graeme Cowiehttp://www.blogger.com/profile/02704481523638679620noreply@blogger.com2tag:blogger.com,1999:blog-4824688363128407673.post-49718306684779166182017-03-14T22:16:00.000+00:002017-03-15T16:33:23.458+00:00Franchise, Question, Timing - Who decides?There has been a lot of inaccurate information disseminated in the aftermath of Nicola Sturgeon's stated intention to hold a second independence referendum between Autumn 2018 and Spring 2019. This might sound <i>tedious</i> but it is important to clarify exactly how the process worked last time around and what relevance it has to how it might operate this time. Consider this a constitutional "primer" for #IndyRef2 / #ScotRef / #Neverendum depending on your own persuasion.<br />
<br />
<span style="color: blue; font-size: large;"><b>Who may hold a referendum on independence?</b></span><br />
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The legal power to hold an independence referendum is not explicitly addressed in UK constitutional law. However, given that the Westminster Parliament is a legislatively supreme Parliament, it may make or unmake any law. This means that it can legislate for a referendum on anything if it so wishes. The courts cannot prevent them from so legislating, but the UK Government typically cannot hold a referendum unless legislation authorises them to do so. In most instances, this will take the form of primary legislation (i.e. an Act of Parliament) but in some instances it may take the form of secondary legislation, especially if primary legislation has already provided for the conditions in which a referendum is to be held.<a href="#1" name="top1"><sup>1</sup></a><br />
<br />
The Scottish Parliament is <i>not</i> a legislatively supreme body. It is, as the late Lord Rodger put it <b><i>"a body which - however important its role - has been created by statute and derives its powers from statute"</i></b>.<a href="#2" name="top2"><sup>2</sup></a> This means that if it attempts to pass legislation that falls outside of its legislative competence, those provisions are "not law" and no one, not even a government minister, can exercise or rely-upon those provisions.<br />
<br />
The Scottish Parliament cannot pass laws which "relate to" "the Union of the Kingdoms of Scotland and England".<a href="#3" name="top3"><sup>3</sup></a> There is <i>disagreement</i> about what this means. The UK Government in 2011-12 publicly stated the view that they believe the SP legislating for an independence referendum would not be legally permissible.<a href="#4" name="top4"><sup>4</sup></a> Any referendum, they argue, regardless of its legal effects, would necessarily "relate to" the reserved matter. The Scottish Government at the time said that they believed it <i>may</i> be possible to legislate for a referendum, but that whether or not it "related to reserved matters" depended upon how the question was asked and the nature of the legal consequences of the referendum result.<a href="#5" name="top5"><sup>5</sup></a><br />
<br />
The Parliamentary debates from the passage of the Scotland Bill in 1998 strongly suggest that those promoting the legislation believed it "clearly" prohibited the Scottish Parliament for legislating for such a referendum. In both the House of Commons and the House of Lords, government ministers and opposition members operated on that understanding. Clarifying amendments, put forward by Lord Mackay of Drumadoon (a former Lord Advocate under the previous Conservative Government) were dismissed as unnecessary, so sure were they of this position.<a href="#6" name="top6"><sup>6</sup></a><br />
<br />
It has never been settled in a court of law whether, ordinarily, it would be within the legislative competence of the Scottish Parliament to pass an Act of the Scottish Parliament providing for the holding of an independence referendum. Scottish legal academics divided on the question.<a href="#7" name="top7"><sup>7</sup></a> However, we do have some guidance that may give us a good indication as to what the courts would do. There are two cases that are particularly relevant for present purposes. One is the case of <i>Martin and Miller v HMA</i><a href="#8" name="top8"><sup>8</sup></a> and the other is <i>Imperial Tobacco v Lord Advocate</i> <a href="#9" name="top9"><sup>9</sup></a>. The first of these two cases took place <i>before</i> the Edinburgh Agreement, whereas the latter straddled it. The Inner House judgment came before the Edinburgh Agreement, and the Supreme Court judgment came after, but they largely agreed with one another.<br />
<br />
These two cases saw both the Scottish courts and the Supreme Court take a <i>broad</i> interpretation of whether or not a provision "relates to" a reserved matter. We establish whether or not this is the case by "reference to the purpose of the provision, having regard to its effect in all the circumstances". Approaches advocated include looking to the "ultimate purpose"<a href="#10" name="top10"><sup>10</sup></a>, not simply the narrow intentions of the provisions themselves, and that if a bill has many purposes, all of those purposes must be consistent (unless one is wholly ancillary to another)<a href="#11" name="top11"><sup>11</sup></a>. Whereas this competence issue was perhaps an open question in 2011-12, it is now very unlikely that either the Inner House or the UK Supreme Court would find that a Referendum Bill fell within the legislative competence of Holyrood.<br />
<br />
<b><u>In the absence of changes to the devolution settlement, therefore, Holyrood cannot call a referendum on independence on its own.</b></u> Without primary legislation, Scottish Ministers cannot: access the full electoral register to register people to vote (rather than just the public one from which people can ask to be omitted); impose campaign donation and spending limits; use broadcast media or the Royal Mail to allow for referendum broadcasts and addresses; spend public money facilitating the holding of a poll for which there is no legal basis; make use of the Electoral Commission to vet the question to be asked and/or other election arrangements etc.<br />
<br />
At best, an informal and independent organisation could organise the holding of a public plebiscite, without these forms of oversight. This was what the Catalan authorities claimed was the nature of their "non-referendum popular consultation" after the Spanish Constitutional Court prohibited them from holding it.<a href="#12" name="top12"><sup>12</sup></a> As you may have seen in the news in the last day or so, the former Catalan Premier, Artus Mas, was prosecuted in the criminal courts for his part in facilitating the plebiscite, and banned for two years from public office.<a href="#13" name="top13"><sup>13</sup></a> That poll involved private citizens counting ballots, but the Catalan Government had committed public expenditure to the exercise and set-up and controlled a website disseminating information about the vote. That vote was <i>boycotted</i> by anti-secessionists in part because of its illegality: the turnout was less than <i>half</i> that of either the Scottish independence referendum of 2014 or the <a href="https://en.wikipedia.org/wiki/Quebec_referendum,_1995">Quebec sovereignty-association referendum of 1995</a>.<br />
<br />
<span style="font-size: large;"><b><span style="color: blue;">How, then, did the 2014 referendum happen?</span></b></span><br />
<br />
The Scottish National Party won an overall majority in the 2011 Scottish Parliamentary elections, with a clear manifesto commitment to hold a referendum on independence in the lifetime of that Parliament. They had previously attempted to introduce legislation following their election victory in 2007, where they became the largest party but were well short of a majority at Holyrood. That legislation failed to progress in the absence of a Parliamentary majority in favour.<br />
<span style="color: blue;"><br />
</span> <b><span style="color: blue;">The Edinburgh Agreement</span></b><br />
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After prolonged public political exchanges, a Memorandum of Understanding (known as "the Edinburgh Agreement") was reached between the Scottish Government and the United Kingdom Government. In this agreement it was understood by the parties to it that the referendum to take place must (and I quote directly):<br />
<br />
<ul><li><b><i>have a clear legal base</i></b></li>
<li><b><i>be legislated for by the Scottish Parliament</i></b></li>
<li><b><i>be conducted so as to command confidence of parliaments, governments and people; and</i></b></li>
<li><b><i>deliver a fair test and a decisive expression of the views of people in Scotland and a result that everyone will respect</i></b></li>
</ul><br />
In relation to the first undertaking, it was agreed that the UK Parliament would exercise its powers under section 30 of the Scotland Act to confer a time limited, conditional, power on the Scottish Parliament to hold a referendum on independence.<br />
<br />
In relation to the second undertaking, the responsibility for introducing legislation actually to hold the referendum itself lay with Holyrood, on whom that power was conferred.<br />
<br />
In relation to the third undertaking, it was agreed that the Electoral Commission and Election Management Board would be responsible for overseeing areas like voter registration, campaign conduct, and in the case of the former that it would assume the same role in reviewing the "intelligibility" of the question asked as it assumes for any referendum legislated for by the Westminster Parliament.<br />
<br />
In relation to the fourth undertaking, it was accepted by the UK Government, though only politically, that as long as the referendum conformed to the necessary legal and procedural standards, a fair question was asked, and a simple majority of those voting did so in favour of independence, it would take steps to honour that result. The two governments committed themselves to <i><b>"work together constructively in light of the outcome, whatever it is in the best interests of the people of Scotland and the rest of the United Kingdom"</b></i>.<br />
<br />
<b><span style="color: blue;">The Section 30 Order</span></b><br />
<br />
The eagle-eyed viewer will notice that a memorandum of understanding is not a law. There were no legal commitments as such, though a draft provision was annexed to the Edinburgh Agreement. To change the law, the UK Government had to pass legislation through both Houses of Parliament, and the text of that legislation had to be approved exactly by the Scottish Parliament. The <a href="http://www.legislation.gov.uk/uksi/2013/242/pdfs/uksi_20130242_en.pdf">Scotland Act 1998 (Modification of Schedule 5) Order 2013</a> was passed in February of 2013. It allowed the Scottish Parliament to hold a referendum subject to the following conditions:<br />
<ul><li>It must not take place after December 31st 2014</li>
<li>It must not clash with any other referendum provided for by the Parliament</li>
<li>It must ask only one question with only a choice between two responses</li>
<li>Aspects of regulation of referendum broadcasts and postal materials that apply to Westminster referendums must also apply to any referendum held pursuant to the Order</li>
</ul><br />
<b><span style="color: blue;">The Scottish Parliament</span></b><br />
<br />
Beyond this, everything was left for the Scottish Parliament itself to decide. It did so by passing two pieces of legislation: the <a href="http://www.legislation.gov.uk/asp/2013/14/enacted">Scottish Independence Referendum Act 2013</a> and the <a href="http://www.legislation.gov.uk/asp/2013/13/contents/enacted">Scottish Independence Referendum (Franchise) Act 2013</a>. The Edinburgh Agreement and the accompanying section 30 Order <u style="font-weight: bold;">did not</u> impose restrictions on<br />
<ul><li>The franchise</li>
<li>The actual text of the question to be asked</li>
<li>When, within the time-limited scope of the power, a referendum must be held</li>
</ul><br />
Indeed, it was, legally speaking, open to the Scottish Parliament <b><u>not to call a referendum at all</u></b>. All the Edinburgh Agreement did was remove the legal obstacles to the holding of a referendum, not to require it. The Edinburgh Agreement itself did operate on several mutual understandings as to the broad intention in relation to those three areas, however.<br />
<br />
In relation to the franchise, it was very clear. At paragraph 9 of the Memorandum, the starting point was that no one who was entitled to vote in a Scottish Parliamentary or local election should be prevented from voting in the independence referendum. Supplementary to that, per paragraphs 10 and 11, the UK Government acknowledged that the Scottish Government was consulting on whether and how to include 16 and 17 year-olds in that franchise. The UK Government imposed <u style="font-weight: bold;">no legal restriction</u> on this and left it to the Scottish Parliament to decide whether to authorise an extension to the franchise for the purposes of the referendum.<br />
<br />
In relation to the question to be asked, it was agreed in the Edinburgh Agreement that the Electoral Commission would serve broadly the same function in relation to this referendum as it is required under statute to do in relation to any referendum authorised by Westminster legislation. The key difference was that it would report to the Scottish Parliament, not the UK Parliament. The Electoral Commission exercises a duty to examine the "intelligibility" of a referendum question. The EC <a href="http://www.electoralcommission.org.uk/__data/assets/pdf_file/0005/82625/Referendum-Questions-our-approach.pdf">has interpreted this</a> as meaning that it should ask whether the ballot <i><b>"presents the options to voters clearly, simply and neutrally"</b></i>. This undertaking <u style="font-weight: bold;">does not require</u> the Scottish Parliament to accept the recommendations the EC makes, but in the 2014 referendum the recommended (cosmetic) changes were accepted.<br />
<br />
In relation to the timing, the Scottish Parliament settled on a date of their choosing several months before the temporary power expired. The Westminster Parliament had no influence over when the referendum was to be held save to put a time limit on the power. There had been calls from Unionist parties for the referendum to be held sooner than September 2014, but these were rejected by the Scottish Government and the Parliament approved their timetable.<br />
<br />
<span style="color: blue; font-size: large;"><b>Can't we just do the same thing again?</b></span><br />
<br />
It has been suggested by some that David Cameron was "too generous" as to the terms on which he allowed the first referendum to take place. I will openly say that I disagree with that, but it is worth exploring the precedents and norms that the Edinburgh Agreement and section 30 Order for the 2014 referendum set and to consider whether, and to what extent, they apply to the current situation.<br />
<br />
<b><span style="color: blue;">Whether a referendum should be held</span></b><br />
<br />
Several arguments have been made about whether a referendum should be held at all. However, this itself breaks down into two questions:<br />
<ul><li>Whether the Scottish Parliament should <i>be granted</i> the power to hold another referendum</li>
<li>Whether the Scottish Parliament should <i>exercise</i> such a power (and if so, when)</li>
</ul><br />
These are functionally separate questions, because the former relates to activity that requires <i>both</i> Parliaments to consent, whereas the latter requires only the Scottish Parliament to take the initiative. Although the Edinburgh Agreement last time proceeded on the <i>understanding</i> that the power was to be granted <i>so that it would be used</i> they are nevertheless discrete.<br />
<br />
Nicola Sturgeon's Government, at this stage, proposes only to initiate the first of those two processes. She is asking that the power be granted, and she has given an indication of the period during which she intends to exercise that power.<br />
<br />
The objections to the holding of this referendum include the following:<br />
<ul><li>There has already been a referendum recently and the answer was No</li>
<li>There is no mandate at Holyrood for the holding of another referendum</li>
<li>It would be inappropriate to hold a referendum before the Brexit terms are known</li>
<li>It would be inappropriate to hold a referendum before Brexit has happened</li>
</ul><br />
The first two arguments are plausible ones why a section 30 Order should not be granted. The arguments may run that, without the combination of constitutional and political grounds for a referendum, the Scottish Parliament should not have the power to hold one.<br />
<br />
All four arguments can plausibly be made to explain why a section 30 Order either should not be granted <i>now</i> or why even if a section 30 Order is granted, Holyrood should not exercise it. However, if approached from the perspective of a Unionist, it might be thought that the fact Holyrood has a Parliamentary majority in favour of a referendum means that the more appropriate forum to object to the referendum is at Westminster, where they are more likely to be able to <i>block</i> the consents necessary for the Order.<br />
<br />
There would be political consequences associated with refusing an Order on any of these grounds and I do not propose to speculate what those would be in this piece. However, I do propose to dissect each of these defences and to elaborate on what they can and cannot justify.<br />
<br />
<b><i><span style="color: blue;">There's already been a referendum and the answer was No</span></i></b><br />
<br />
This argument often involves reference to the fact that, during the referendum campaign, prominent SNP politicians referred to the vote as a "once in a generation" or a "once in a lifetime" opportunity or decision. This perhaps also speaks to the idea that the original referendum was intended to, in the terms of the Edinburgh Agreement <i style="font-weight: bold;">"deliver a fair test and a decisive expression of the views of people in Scotland and a result that everyone will respect"</i>.<br />
<br />
It is worth observing at this stage that none of these commitments appeared in legislation and none of them appeared in political manifesto documents. The notion of a "generational" or "lifetime" question did not even appear in the Edinburgh Agreement; it did not form a part of the memorandum of understanding. The closest to a "commitment" therefore, by which anyone is honour-bound, is the use of the phrases in the Edinburgh Agreement <b><i>"a decisive expression of the views of the people in Scotland"</b></i> and <b><i>"a result that everyone will respect".</i></b><br />
<br />
Those two phrases might be taken to imply that this question ought not to be revisited. If a decision is "decisive" it ought not, normally, to be overturned. However, there is no timescale associated with this. On its narrowest reading, this simply requires that the result itself is respected, not that the right to continue to make the argument desists. It does not commit the Scottish Parliament not to revisit this question in the future. That is left, quite simply, to politics. Clearly, though, if you take the view that the Scottish Parliament has had its say, it would then be logical to oppose, irrespective of circumstances, the granting of a section 30 Order, and to accept the political benefit or cost of doing so.<br />
<br />
<i><b><span style="color: blue;">There is no mandate at Holyrood for the holding of another referendum</span></b></i><br />
<br />
This is linked to the second argument, which is more of an electoral constitutional one. In 2011 the SNP achieved an overall majority at Holyrood on an explicit manifesto commitment to hold an independence referendum.<a href="#14" name="top14"><sup>14</sup></a> In 2016, although their share of the constituency vote rose, the SNP lost seats, principally off the back of a fall in their list vote share. The Scottish Green Party's share of the vote and of seats rose, however, and between them they constitute a majority of the Scottish Parliament. The combined list vote share of those two parties is higher than that of the pro-Union parties but the reverse is true on the constituency ballot, partly attributable to the fact that the Greens stand few constituency candidates. These factors are potentially relevant as to whether a mandate exists, but must be taken in conjunction with what the manifestos said, since this formed part of the basis of the (accepted) claim that there was a mandate the last time around.<br />
<br />
<a href="https://www.snp.org/manifesto_plain_text_extended">The SNP manifesto in 2016</a> stated:<br />
<blockquote class="tr_bq"><b><i>"We believe that independence offers the best future for Scotland. However, Scotland will only become independent when a majority of people in Scotland choose that future in a democratic referendum – it will not happen just because the SNP wants it to, or because there is an SNP government.</i></b></blockquote><blockquote class="tr_bq"><b><i>At the same time if there is a clear demand for a referendum no politician has the right to stand in the way of the people of Scotland to choose their own future.</i></b> </blockquote><blockquote class="tr_bq"><b><i>We believe that the Scottish Parliament should have the right to hold another referendum if there is clear and sustained evidence that independence has become the preferred option of a majority of the Scottish people – or if there is a significant and material change in the circumstances that prevailed in 2014, such as Scotland being taken out of the EU against our will. </i></b></blockquote><blockquote class="tr_bq"><b><i>In the next parliament, we will work hard to persuade a majority of the Scottish people that being an independent country is the best option for our country. We will listen to the concerns of people who voted No in 2014 and seek to address them. The case we make will be relevant to the complex world we live in today."</i></b></blockquote><br />
It therefore declares an intention to hold a referendum if one of two things happen. Either:<br />
<ul><li>There is "clear and sustained evidence" of a significant change in opinion of the Scottish people from 2014; <b><u>or</u></b></li>
<li>There is a "material change in circumstances" to the constitutional settlement that Scotland endorsed in 2014, with the specific example given being an involuntary withdrawal from the EU</li>
</ul><br />
<a href="https://greens.scot/sites/default/files/Manifestos/Scottish%20Greens%20Manifesto_Online.pdf">The Scottish Green Party manifesto</a> stated:<br />
<blockquote class="tr_bq"><b><i>"Citizens should be able to play a direct role in the legislative process: on presenting a petition signed by an appropriate number of voters, citizens should be able to trigger a vote on important issues of devolved responsibility. As we proposed on the one year anniversary of the Independence Referendum, this is the Scottish Greens’ preferred way of deciding to hold a second referendum on Independence. If a new referendum is to happen, it should come about by the will of the people, and not be driven by calculations of party political advantage. In such a referendum the Scottish Greens will campaign for independence."</i></b></blockquote>In other statements, but not the manifesto, the Green Party indicated that this would include a petition of "up to 1 million people on the electoral register".<br />
<br />
It is clear that these commitments are not identical. The Scottish Green Party's commitment also does not make any reference to a "material change in circumstances". However their threshold is potentially not very high. It does not state that a majority of Scots should have to want another referendum, and it does not set any particular threshold; simply that an "appropriate number of voters" ought to be required.<br />
<br />
It might be argued that, since those commitments are not made in the same terms, there is no mandate for a second independence referendum, even though it is now clear that the SGP will in fact support the Scottish Government's request that a section 30 Order should once again transfer those powers. It could plausibly be argued that, integral to the civic process the Scottish Greens have outlined, there is a mandate for the <i>devolution</i> of the power to hold a referendum, even if there may not as such be a mandate for the <i>exercise</i> of that power.<br />
<br />
The other parties in the chamber stood on a combination of manifesto and other commitments to oppose a second independence referendum. Clearly they have the right, as MSPs, to vote against any transfer of power under section 30 of the Scotland Act, and to oppose the exercise of any power to hold a referendum, and to assume the relevant political burdens for that.<br />
<br />
If, however, it is maintained that the political conditions and commitments do not amount to a mandate to seek to hold a referendum, the question surely turns to the question "what does"? Three obvious positions have been suggested:<br />
<ul><li>That the SNP must win another outright majority</li>
<li>That a majority must be obtained on a clear mandate of all relevant parties</li>
<li>That there must be a clear indication the majority of Scots want another referendum</li>
</ul><br />
The first of these three positions seems to be constitutionally unsustainable. Holyrood has a voting system that is designed not to allow for majoritarian politics, but if a majority of members are returned from parties that stipulated in their manifestos that they agree on something, that normally gives them in all but name a political mandate to pursue it. The Coalition Government at Westminster frequently relied-upon its Coalition Agreement as the basis for its policies, even though the electorate did not vote for it. If two parties put forward clearly identical or near identical proposals at an election and they constitute a majority between them, that is not obviously any less of a political mandate for that proposition than a single party winning outright.<br />
<br />
If anything, two parties may be elected with a higher share of the popular vote between them, lending greater legitimacy, whereas the SNP won an outright majority on a share of the vote well short of 50% in 2011. Their popular mandate in the 2016 election was also higher than that of the UK Government, which after all has a Prime Minister who has not faced the electorate in a General Election and whose party assumed a working majority from only 37% of the popular vote. As far as mandates go, the ground is not particularly strong on the part of any of the parties, save that their MSPs would vote in accordance with their manifesto commitments. This says nothing of what MPs should do at Westminster.<br />
<br />
The third option either confuses what it is the SNP and Greens actually said in their manifesto or is constitutionally indefensible as a threshold. Neither of the manifestos constrained the holding of a referendum to a requirement that <i>the majority</i> of Scots want another referendum. If this is to be a threshold, the question must be asked "how should we measure it"? Either this says that a constitutional mandate relies on <i>opinion-polling</i>, in which case it is irrelevant whether or not the SNP have a majority, or it relies on an election explicitly being seen as a <i>proxy</i> for whether or not another referendum should be held. A very similar situation emerged in the <a href="https://en.wikipedia.org/wiki/Catalan_parliamentary_election,_2015">Catalan elections of 2015</a>, where <i>Junts Pel Si</i> (Together for Yes) formed a coalition as a proxy for the constitutional question in overt terms, and alongside another pro-independence party secured the majority of seats, though off a large minority of the popular vote. Clearly the Catalan situation has its own challenges in a different constitutional context, however.<br />
<br />
On balance, the second of the three approaches is the most sustainable for those making this argument if it is to be accepted at all. This could lead to an explicit commitment in both the SNP and Green manifestos to hold a second independence referendum in 2021, though clearly this would be <i>after</i> Brexit is intended to have taken effect. Alternatively, it could lead to the SNP taking steps to trigger an extraordinary general election under the terms of the Scotland Act, to establish such a mandate before then.<br />
<br />
<b><i><span style="color: blue;">It would be inappropriate to hold a referendum before the Brexit terms are known/Brexit has happened</span></i></b><br />
<br />
The first of these two is, actually, the stated position of the First Minister. This comes with a caveat, however, that the referendum must not happen so late as to prevent Scotland from being able to control its own fate. It is questionable whether those two stipulations are compatible with one another given the tight timescale for Brexit negotiations.<br />
<br />
There is an arguable case that the terms and consequences of Brexit will not be apparent by the beginning of her proposed timeframe. It might even be argued that to hold a referendum during this period would be unduly disruptive Brexit talks and/or create an unacceptable lack of clarity as to what voters were in fact voting for.<br />
<br />
In those circumstances, the UK Government and/or opposition parties at Holyrood may seek to <i>delay </i>this timetable at least until after Brexit has taken effect (at the moment, scheduled for no later than April 2019) if not later still. They could do this <i>either</i> by refusing a section 30 Order until that stage, or granting one but stipulating a minimum waiting period rather than just a power expiry date, as compared to last time. How plausible it would be to insist against delay beyond Brexit itself is a political question, but one affected by constitutional concerns. If it were perceived to have the effect of essentially refusing to allow a referendum in the lifetime either of this UK or Scottish Parliamentary session, that might be a more controversial justification than if it were simply to push this referendum towards either the latter part of the First Minister's timetable or slightly beyond it into the latter part of 2019.<br />
<br />
<span style="color: blue;"><b>Other Considerations</b></span><br />
<br />
The question <i>whether</i> the referendum should be held is, however, a separate one from what the terms should be on which it is held. I have already addressed, in part, the question of timing, but there are other timing related issues. The main other timing point to raise is that the UK Government may try to insist on a specific date for a referendum. This would represent a significant departure from the basic premise agreed last time in the Edinburgh Agreement, that insofar as a referendum was to take place: <b><i>"the date of the poll will be for the Scottish Parliament to determine"</b></i>. Clearly though, as a matter of strict law, the Westminster Parliament can attempt to insist on any restriction it pleases, and to accept the political cost associated with that.<br />
<br />
<b><span style="color: blue;">Franchise</span></b><br />
<br />
As for the franchise, since the referendum, the Scottish Parliament's powers have been reformed. <a href="http://www.legislation.gov.uk/ukpga/2016/11/section/3">Section 3 of the Scotland Act 2016</a> changes the law so that the Scottish Parliament itself, not merely the Westminster Parliament, has the legislative competence to amend the franchise for its own elections and for local authority elections. In the 2014 referendum, the understanding between the governments was that the franchise for the poll was to be based, first and foremost, on that franchise, though technically the Scottish Parliament was entitled to allow anyone it wished to vote in that referendum.<br />
<br />
Insofar as the Westminster Parliament might plausibly have been entitled, constitutionally, to restrict the franchise of a future independence referendum, it would therefore be difficult to see how they could, <i>politically</i> insist on such a restriction the second time around. There are plausibly three areas where this could become contentious (in order of plausibility):<br />
<ul><li>Non-Commonwealth/Irish European Union citizens</li>
<li>16 and 17 year-olds</li>
<li>Prisoners</li>
</ul><br />
Prisoner voting is a general area where there is political hostility, but it is clear that there is no legal <i>obligation</i> to allow prisoners to vote in a secession referendum.<a href="#15" name="top15"><sup>15</sup></a> It would be difficult for Westminster to resist the franchise including 16 and 17 year-olds given that they both <i>actively facilitated </i>the extension of the franchise for Holyrood elections in 2016 and <i>passively permitted</i> that group to vote the first time around. It should be noted, however, that when setting the franchise for the EU referendum, the Westminster Parliament based it upon their own franchise, which does not allow this group to vote.<br />
<br />
The most contentious group will be the right to vote of non-Commonwealth/Irish European Union citizens. This is a group that can vote in Holyrood and local elections at the moment but not UK General Elections. They were not permitted to vote in the EU referendum but they did get to vote in the first independence referendum. This group, it has been speculated, will be an important one in a second referendum because of how Brexit affects their apparent incentives.<br />
<br />
Given the <i>principle</i> adopted last time was that the baseline for the franchise for a Holyrood referendum should be the Holyrood franchise, and the Scotland Act 2016 gives the Holyrood Parliament control over that franchise (albeit with a supermajority lock to change it) it would be constitutionally contentious for the Westminster government to seek to restrict this aspect of the franchise in a future section 30 order.<br />
<br />
<b><span style="color: blue;">Question</span></b><br />
<br />
The final issue of importance relates to the question asked itself. Some people objected last time to the question asked, on the grounds that the absence of any reference to the United Kingdom made it a "leading" question. It is worth noting that the Electoral Commission rejected this argument when the Scottish Government presented their question last time, the only change they recommended being that rather than "do you believe" Scotland should be an independent country, Yes or No, it should instead be "should" Scotland be an independent country, Yes or No.<br />
<br />
I had my own objections to the question, mainly of semantics, that it ought to have been "become" not "be" and it should have been "state" not "country" but the Electoral Commission was clearly of the view that those elements do not affect the "intelligibility" of the question and that people know what they were voting for.<br />
<br />
If the Westminster Parliament were to attempt to <i>set</i> the question, rather than simply to insist on a single and binary question as they did last time, this would depart from the norms of the previous agreement. It would be highly contentious for it to do so. There may be certain aspects to the question they want to avoid that are more likely to crop-up this time, however.<br />
<br />
They may wish to avoid, for example, a question making any reference to the European Union, or any purported future relationship an independent Scotland would have with the EU, since that is not something that is in the gift of an independent Scotland to guarantee. This is similar to an objection many Canadians raised about the "sovereignty-association" referendum Quebec held in 1995, and explains why the <a href="http://laws-lois.justice.gc.ca/eng/acts/c-31.8/page-1.html">Clarity Act 2000</a> now says the Canadian Government <i>must not</i> enter into negotiations to give effect to a province's secession if the question is unclear.<br />
<br />
In light of the EU referendum's question, there may be political pressure to push for a question phrased in terms of "Remain" and "Leave", if it is (rightly or wrongly) perceived that "Yes" vs "No" has a subconscious effect on voting and campaigning. They may try to insist that reference to the United Kingdom is included in the question.<br />
<br />
All of these demands would be politically contentious, given last time, as the Edinburgh Agreement put it, <b><i>"the wording of the question will be for the Scottish Parliament to determine and will be set out in the Referendum Bill to be introduced by the Scottish Government"</i></b>. It would seem sensible on the part of the Scottish Government to use exactly the same question as last time if Holyrood were given the power again. This would minimise the scope for disagreement or accusations of attempting to "rig" the question.<br />
<br />
<span style="color: blue; font-size: large;"><b>Parting thoughts</b></span><br />
<br />
This process is complicated and could get very messy. Last time the referendum relied on a significant amount of goodwill and give-and-take by both governments to ensure a clear legal and fair process would produce a result that the relevant sides were willing to accept. We must, however, be very clear about what the last referendum did and did not commit various actors to, and whether those commitments are legal, constitutional, political, or simply statements of opinion rather than promises at all. I am almost certain that we will hear misinformation from both sides about the constitutional right or otherwise to hold another referendum, and if so on what terms. In those circumstances we must be absolutely clear as to what happened last time and <i>why</i> it was settled the way it was. The last thing Scotland needs is another argument about process. If this question is to be asked again, the <i>substance</i> should be what matters.<br />
<hr width="80%"><p><span class="Apple-style-span" style="font-size: x-small;"><br />
<a href="#top1" name="1"><b>1 </b></a>e.g. <a href="http://www.legislation.gov.uk/ukpga/1998/47/section/1">section 1</a> and <a href="http://www.legislation.gov.uk/ukpga/1998/47/schedule/1">Schedule 1</a> of the Northern Ireland Act 1998 and several parts of the <a href="http://www.legislation.gov.uk/ukpga/2011/12">European Union Act 2011</a><a href="#top1"><sup>↩</sup></a><br />
<br />
<a href="#top2"name="2"><b>2 </b></a><a href="http://www.bailii.org/scot/cases/ScotCS/2000/41.html"><i>Whaley v Watson</i><b> </b></a><a href="http://www.bailii.org/scot/cases/ScotCS/2000/41.html">2000 SC 340</a><a href="#top2"><sup>↩</sup></a><br />
<br />
<a href="#top3" name="3"><b>3 </b></a><a href="http://www.legislation.gov.uk/ukpga/1998/46/section/29">section 29(2)(b)</a> and <a href="http://www.legislation.gov.uk/ukpga/1998/46/schedule/5">Schedule 5 Part 1 para 1(b)</a> Scotland Act 1998<a href="#top3"><sup>↩</sup></a><br />
<br />
<a href="#top4" name="4"><b>4 </b></a>See the speech of Lord Wallace of Tankerness (then Advocate General for Scotland) at the University of Glasgow on 20th January 2012 available <a href="http://www.gov.uk/government/speeches/scotlands-constitutional-future">here</a> [accessed 14.03.17] <a href="#top4"><sup>↩</sup></a><br />
<br />
<a href="#top5" name="5"><b>5 </b></a>Scottish Government (2007) 'Choosing Scotland's Future - A National Conversation' pp33-34 available <a href="http://www.gov.scot/resource/doc/194791/0052321.pdf">here</a> [accessed 14.03.17]<a href="#top5"><sup>↩</sup></a><br />
<br />
<a href="#top6" name="6"><b>6 </b></a>HL Deb 3 November 1998, vol 594, cols 144-52 available <a href="http://www.publications.parliament.uk/pa/ld199798/ldhansrd/vo981103/text/81103-04.htm">here</a> [accessed 14.03.17]<a href="#top6"><sup>↩</sup></a><br />
<br />
<a href="#top7" name="7"><b>7 </b></a>See among others A. Tomkins (2012) 'The Scottish Parliament and the Independence Referendum' <i>UK Constitutional Law Association</i> available <a href="http://ukconstitutionallaw.org/2012/01/12/adam-tomkins-the-scottish-parliament-and-the-independence-referendum/">here</a> and G. Anderson (et. al.) (2012) 'The Independence Referendum, Legality and the Contested Constitution: Widening the Debate' <i>UK Constitutional Law Association</i> available <a href="http://ukconstitutionallaw.org/2012/01/31/gavin-anderson-et-al-the-independence-referendum-legality-and-the-contested-constitution-widening-the-debate/">here</a> [both accessed 14.03.17]<a href="#top7"><sup>↩</sup></a><br />
<br />
<a href="#top8" name="8"><b>8 </b></a><i><a href="http://www.bailii.org/uk/cases/UKSC/2010/10.html">Martin and Miller v HMA</i> [2010] UKSC 10</a><a href="#top8"><sup>↩</sup></a><br />
<br />
<a href="#top9" name="9"><b>9 </b></a><i>Imperial Tobacco v Lord Advocate</i> <a href="http://www.bailii.org/scot/cases/ScotCS/2012/2012CSIH9.html">[2012] CSIH 0009</a> (Inner House) and <a href="https://www.supremecourt.uk/decided-cases/docs/UKSC_2012_0066_Judgment.pdf">[2012] UKSC 61</a> (UK Supreme Court)<a href="#top9"><sup>↩</sup></a><br />
<br />
<a href="#top10" name="10"><b>10 </b></a>Lord Hamilton (Inner House judgment) para 21<a href="#top10"><sup>↩</sup></a><br />
<br />
<a href="#top11" name="11"><b>11 </b></a>Lord Hope (Supreme Court) para 43<a href="#top11"><sup>↩</sup></a><br />
<br />
<a href="#top12" name="12"><b>12 </b></a>J. Oliva (2014) ‘Catalonia in Spain? The future ahead’ <i>UK Constitutional Law Association</i> available <a href="https://ukconstitutionallaw.org/2014/11/10/javier-garcia-oliva-catalonia-in-spain-the-future-ahead/">here</a> [accessed 14.03.17]<a href="#top12"><sup>↩</sup></a><br />
<br />
<a href="#top13" name="13"><b>13 </b></a>BBC Online (2017) 'Catalan ex-leader Artur Mas banned from office over illegal referendum' available <a href="http://www.bbc.co.uk/news/world-europe-39258436">here</a> [accessed 14.03.17]<a href="#top13"><sup>↩</sup></a><br />
<br />
<a href="#top14" name="14"><b>14 </b></a>Edinburgh Agreement (2012) available <a href="http://www.gov.scot/Resource/0040/00404789.pdf">here</a> [accessed 14.03.17]<a href="#top14"><sup>↩</sup></a><br />
<br />
<a href="#top15" name="15"><b>15 </b></a><i><a href="https://www.supremecourt.uk/cases/docs/uksc-2014-0183-judgment.pdf">Moohan v Lord Advocate</i> [2014] UKSC 67</a>; see also G. Cowie (2016) 'Prisoners to Devolved Fortune? The Right to Vote and the Scotland Act 2016' <i>UK Constitutional Law Association</i> available <a href="http://ukconstitutionallaw.org/2016/05/18/graeme-cowie-prisoners-to-devolved-fortune-the-right-to-vote-and-the-scotland-act-2016/">here</a> [accessed 14.03.17]<a href="#top15"><sup>↩</sup></a><br />
</span>Graeme Cowiehttp://www.blogger.com/profile/02704481523638679620noreply@blogger.com2tag:blogger.com,1999:blog-4824688363128407673.post-56154429587952070052017-03-13T12:36:00.002+00:002017-03-13T12:36:28.807+00:00Round 2.0Nicola Sturgeon announced this morning that, in the absence of evidence of the United Kingdom government making concessions to accommodate the devolved nations in their approach to Brexit negotiations, she intends to hold a second independence referendum between Autumn 2018 and Spring 2019. She has stated she will seek that the UK Parliament should make another section 30 Order, transferring competence to allow the Scottish Parliament to legislate for such a referendum, on essentially the same basis as happened in 2013 ahead of the one in September 2014.<br />
<br />
The Scottish Parliament does not, on the face of it, have the legislative competence to hold a referendum. Legislation that "relates to" the "Union of the Kingdoms of Scotland and England" is "not law". The effect of this is that the Scottish Parliament cannot, among other things, use the full electoral register, have a referendum overseen and managed by the Electoral Commission, or authorise or regulate donations and expenditure to facilitate the holding of such a poll.<br />
<br />
If a poll took place against that backdrop, it would be very similar to the "non-referendum popular consultation" organised by the Catalan Government in November 2014. Several officials of the Catalan Government have since been brought before the criminal courts on charges of disobeying several constitutional court orders and misusing public funds. That referendum had low turnout, boycotted as it was by the anti-secession side at the urging of, among others, the <i>Partido Popular</i> and the Spanish Government led by it. The result was therefore ignored by the Spanish Government, on putatively constitutional grounds.<br />
<br />
Whether Nicola Sturgeon would be prepared to defy the UK Government, and potentially the UK Supreme Court, and hold a referendum or an unofficial poll anyway remains to be seen. In other countries, like Canada, there is not an explicit prohibition on the holding of secession referendums by sub-state governments. Quebec, for example, can unilaterally hold a referendum, but the result only commits the Canadian government to "enter into negotiations to respond to the desire" of the people to secede. This clearly falls far short of a legal obligation to give effect to secession, but allows the people to have their say.<br />
<br />
There are two aspects I wish briefly to reflect-on today. One of them is political, and the other is constitutional.<br />
<br />
<b><span style="color: blue; font-size: large;">She has called this too soon</span></b><br />
<br />
Firstly, I think Nicola Sturgeon has made a mistake today. She was half right when she said a referendum should not happen until the terms of Brexit are known but before Scotland is prevented from choosing its own path. The problem here is one of basic chronology. If you hold a referendum in Autumn 2018 or Spring 2019, there simply is not enough time to negotiate the terms of secession from the UK before a Hard Brexit takes effect. Short of unanimous agreement by the Member States, we Scotland <i>will</i> be "dragged out of the EU against our will". There is therefore nothing to be gained, in my view from holding a referendum this soon and potentially it is more likely to create unnecessary uncertainty by mixing the two processes. It would be far smarter to have waited until the Brexit deal actually takes effect, since it will likely take effect before independence <i>regardless</i> before returning to this question at a point when potential accession talks would be more feasible. I think she is more likely to <i>lose</i> a referendum that takes place sooner and as the Quebec experience shows, this really would kill the question for a generation to lose second time around.<br />
<br />
<span style="color: blue; font-size: large;"><b>Section 30 is just asking for a fight</b></span><br />
<br />
The second point is that the constitutional position, which insists the Scottish Parliament must get consent to hold a referendum, is itself a flawed one. It sets two governments up against one another, and suggests that, on a more fundamental democratic level, this isn't a decision that the Scottish people are entitled to take for themselves. This reflects a particularly restrictive conception of devolution and of the union itself, and essentially says that the powers of self-government of the Scottish people are at the generous forbearance of Westminster and not ones that exist as of right. It is my belief, and I have argued in my (as of yet, not complete) doctoral thesis, that the UK should have adopted a different approach, granting general competence in this area to the Scottish Parliament, but subjecting it to conditions. We should be borrowing from other ways this issue has been dealt with. This might include minimum waiting periods between referendums (as in the Northern Ireland Act) and higher or discretionary thresholds required depending on the nature of the question asked and the frequency of referendums (borrowing in part from Canada's Clarity Act).<br />
<br />
The effect of creating a possible situation in which referendums are denied, or held unconstitutionally, degrades the democratic process. It undermines the ability of political institutions to ensure that referendums are properly regulated and monitored, and it generates a gap between the perceived political legitimacy of processes in the eyes of the people and the constitutional legality of processes. It is also a massive boon to sub-state nationalist movements, which typically see a surge and solidification of support when governmental and judicial institutions are seen to act intransigently towards them. At least if you <i>permanently regulate</i> the terms on which a referendum may be held, that removes partisan vetoes from the equation. It says that the Scottish Parliament must ultimately decide for itself what is the responsible course of action.<br />
<br />
We must also learn to separate the holding of referendums from the implementation of their results. The EU referendum shows why this is important, but so does the Reference Re Secession of Quebec. In the absence of governmental consensus, the proper forum to resolve the differences of opinion in relation to secession should be in how the UK <i>responds to the vote to secede</i> and not a quarrel about <i>whether or not the referendum should be allowed to happen</i>. As Stephen Tierney and others have said in the past, one of the biggest strengths of the 2014 Scottish referendum was that it debated <i>substance</i> not <i>process</i>. If our second referendum is to be more like the Catalan one, and less like either the first Scottish one, or the second Quebec one that the Canadian government went out of its way not to prevent happening (despite it arguably being, then, unconstitutional) then that is going to be much less healthy for reconciling the Scottish people after the votes are counted.<br />
<br />
No one should want that.Graeme Cowiehttp://www.blogger.com/profile/02704481523638679620noreply@blogger.com0tag:blogger.com,1999:blog-4824688363128407673.post-56313289293338651122017-02-19T15:48:00.004+00:002017-02-19T18:38:07.512+00:00The Right to Vote after BrexitRecently, for reasons related to my academic research, I've been reading quite a bit about nationalism and aspects of the so-called "right to secede". As part of that, I've looked at how we make distinctions between, on the one hand, "liberal nationalism" and "ethnic nationalism". This is a politically fraught area, but one that can manifest itself in how we define who "the people" are. When it comes to deciding who has the right to vote, our laws on <i>citizenship</i> are typically the defining factor, but those citizenship laws themselves can say the lot about a nation, the State that contains it, and its nationalism.<br />
<div><span style="color: blue;"><br />
</span></div><div><b><u><span style="color: blue;">Ethnic v Liberal Nationalism</span></u></b><br />
<div><br />
</div><div>One of the distinctions that constitutional and political theorists draw, when determining whether a nationalist movement and state institutions are "ethnically" or "liberally" nationalist is how they define, or propose to define, the citizenship of their territorial-political society. Among others, philosopher Kai Nielsen<a href="#1" name="top1"><sup>1</sup></a> distinguishes these two by characterising "ethnic" nationalism as one which is based on <i>descent</i> and which is therefore on some levels exclusionary, whereas "liberal" nationalism requires that "anyone who wishes to have full citizenship and be a part of the nation may, at least in principle, do so if they learn its language, history, and customs, swear allegiance to it, and are willing to abide by its laws."</div><div><br />
</div><div>It should be noted that liberal nationalism is not quite the same thing as another idea, that of "civic nationalism" that has dominated the Scottish independence debate. A purely civic nationalism, which Nielsen maintains is an "oxymoron" (and I'm inclined to agree) has no concern for protection of cultural and political institutions because of their origins, a characteristic that clearly <i>does</i> define even the more inclusive forms of political nationalism in places like Scotland, Catalonia and Quebec. Purely civic nationalism is scarcely nationalism at all: as I will explain later that is one of the main aspects of it that is to be commended.</div><div><br />
</div><div>Most sovereign States share elements of both ethnic and liberal aspects of nationalism in their citizenship criteria. Descent is typically used as a baseline for belonging to the nation, but this is supplemented by provisions that allow for people to be "naturalised" as citizens. This usually requires that they have acquired a permanent right to remain under immigration law, and may involve them taking some kind of citizenship test. How easy it is to meet the requirements to become a citizen, however, varies greatly. It is possible that you can live in a country under a series of work-related visas, but never be able fully to participate in its political process and to be involved in making the laws that affect you on a day-to-day basis. In the most classic of senses, non-citizen residents (many but not all of whom can properly be understood as "immigrants") are a second-class of person in many liberal democracies. They enjoy basic legal rights, and basic human rights, but they have no influence over the people who make those laws. They assume all the obligations of citizens without the rights: as our American friends might put it, they face taxation without representation.</div><div><span style="color: blue;"><br />
</span></div><div><b><u><span style="color: blue;">Britain is a bit more complicated</span></u></b></div></div><div><b><u><br />
</u></b></div><div>The United Kingdom, however, has always had an <i>ambiguous</i> relationship with citizenship and national identity. Although clearly the idea of being "British" is something that exists, it faces both internal and external challenges. Internally you have sub-State nationalisms, and externally you have a kind of internationalist conception of peoples too. There are (especially historically) problematic and imperialistic aspects to this conception, but our laws on citizenship and political participation have been and continue to be defined against the context of the British Empire and quite permissively. We do not simply, for instance, allow those holding what is called "British citizenship" to vote and to stand in our elections; we allow "qualifying Commonwealth citizens" and citizens of the Republic of Ireland so to stand. This Commonwealth identity, often conflated or overlapping with the notion of an Anglosphere, allows anyone holding citizenship of over 50 different countries to participate fully in our politics if they have "indefinite leave to remain" or if for other reasons they do not require leave to remain in Britain. Indefinite leave to remain is not an easy immigration status to acquire (certainly less so than it was before more stringent limits on immigration have been imposed in recent decades on movement from Commonwealth countries) but we do see this kind of reversing of citizenship rights into specific groups of non-citizen permanent residents.</div><div><br />
</div><div>Our membership of the European Union has also added an additional layer of complexity to this issue. Anyone who holds a qualifying national citizenship of an EU Member State has EU citizenship, and therefore has certain rights when they exercise freedom of movement in other countries. This includes limited rights of participation in the European Parliament and "municipal" elections of their host State on the same basis as nationals of that State. EU citizenship is therefore a kind of half-way house between national non-citizenship and citizenship, conferring some but not all of the relevant rights.</div><div><b><u><br />
</u></b></div><div>Both of these aspects of our citizenship laws are more permissive than many other countries that are widely regarded as "liberal" and "open" societies. In Canada, for instance, the right to vote is circumscribed to Canadian citizens, but their process for naturalisation is fairly permissive and their immigration policies allow for a net migration rate in the region of double that of the United Kingdom.</div><div><br />
</div><div>But in other respects our citizenship laws are anachronistic and adhere far more to the notion of <i>descent</i> than they do a true desire to include all adult participants in our society and communities. The fact that voting rights are extended beyond citizens <i>only</i> to Commonwealth citizens (and Irish citizens who UK law don't even consider to be foreign) in their full form, means that it still excludes others from our process simply because of where they came from. Why does a Maltese national living here have a claim to decide who my MP is, but a French national doesn't? Why does someone with leave to remain from Cameroon get to vote in our elections, but someone from neighbouring Gabon with the same immigration status cannot? These distinctions are completely and utterly arbitrary. There is not even a defence here that this Commonwealth voting status is a reciprocal arrangement; plainly it is not and many other Commonwealth countries do not extend British citizens the right to vote.</div><div><span style="color: blue;"><br />
</span></div><div><b><u><span style="color: blue;">Relevance to the current debate</span></u></b></div><div><b><u><br />
</u></b></div><div>All of this is relevant because our leaving the European Union will require us to carry out some reappraisal of our citizenship laws as they currently exist. We saw the rumblings of this issue already when there was a debate about who should have the right to vote in the European Union referendum. The UK Government insisted, and Parliament acquiesced, that the franchise should be based-upon the franchise that exists for UK General Elections. This is a franchise that excludes a number of people who are eligible to vote in European Elections, devolved elections, and local authority elections, namely European Union citizens who are not also Commonwealth or Irish citizens. It was particularly ironic that a democratic exercise that would have zero effect on the citizenship rights of Sri Lankan citizens, but which would systematically affect the exercise of citizenship rights of hundreds of thousands of Polish citizens, allowed the former, but not the latter, to vote.</div><div><br />
</div><div>Should the UK leave the European Union, the voting rights of EU citizens in devolved and local elections could go with it. There is an added complexity in Scotland, in that the Scottish Parliament is now responsible for its and local government franchises, and would likely be responsible as in 2014 for setting the franchise of any independence referendum. But for Westminster <i>at least</i> there is a question politicians must confront here. Are EU citizens, who presently have rights by virtue of residence in the UK, still to have a place in British political decision-making, including, incidentally, not just the right to vote, but the right to <i>stand</i> for election and to <i>sit</i> as an MSP, MLA, AMs and councillors? Or will they lose these rights? If only some of them will lose these rights, which ones, and how will we distinguish?</div><div><br />
</div><div>It is hard to imagine a position that does not either require an extension of political participation rights to all EU citizens with a minimum residence period in the UK, or which otherwise involves a very explicit attempt to deprive people who live in this country of civic rights they previously exercised.</div><div><br />
</div><div><b><u><span style="color: blue;">The Real Debate</span></u></b></div><div><b><u><br />
</u></b></div><div>If one is to be optimistic, however, this need to confront this issue might just require the UK to confront more squarely and honestly what the basis of political participation is in our country. There are two directions this could go in:</div><div><br />
</div><div>1. We become more restrictive by limiting voting rights to British citizens</div><div><ul><li>This would, in my view, be a most retrograde step, but it is one that a worrying number of people seem to be advocating</li>
</ul><div>2. We begin to decouple the right to vote from citizenship </div><div><ul><li>This would involve either bringing EU citizens permanently into some sort of legal status equivalent to Commonwealth citizens, or would involve the removal of a citizenship requirement from the right to vote outright</li>
</ul><div>I firmly take the view that the second of these two directions is the preferable course of action. I have to confess I have <i>never</i> been sympathetic to the idea that citizenship should determine whether or not people have the right to participate in the political process. Even a "liberal nationalism" that says it's okay to exclude certain people if they have not gone through a process to acquire citizenship seems to me to be discriminatory and unfair. To be a truly civic State, one that does not base rights upon descent, requires two things:</div></div></div><div><br />
</div><div>1. That <i>all</i> adults bound by the laws of a territory, i.e. those who live in it, can have a role in deciding who gets to make those laws</div><div><br />
</div><div>2. That a country should be as permissive as is possible, and should not discriminate, with respect to who it allows to take up residence in it</div><div><br />
</div><div>If someone has already done enough to satisfy a State that they have the right to live and work or study here, I think it is plainly prejudiced and discriminatory to say that they should have to meet additional hurdles to participate in the civic life of our country than those who happened to be born here or born to the right set of parents.</div><div><br />
</div><div>Put simply, I think it is time for the UK Parliament to remove all references to "qualifying Commonwealth citizens" from the Representation of the People Act and to replace it with a very permissive right to reside stipulation.</div><div><br />
</div><div>If liberals believe in internationalist values, and believe that people should not be defined by their country of origin, or the birthplace of their parents, they should be ramping-up the arguments for this expansion of the franchise. Because if they do not, it could end-up being constrained, going completely against the tide of history. If Theresa May wants to show liberals that her Brexit is about opening Britain up to the world rather than a nascent nativism concerned with the exclusion of those who are "foreign", she should be careful which side of this debate she comes down on.</div><br />
<hr width="80%" /><span class="Apple-style-span" style="font-size: x-small;"><br />
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<a href="#1" name="1"><b>1 </b></a>See among other work, K. Nielsen (1998), 'Liberal Nationalism, Liberal Democracies, and Secession', <i>The University of Toronto Law Journal</i>, 48(2), pp. 253-295 available <a href="http://www.jstor.org/stable/pdf/825982.pdf">from JSTOR here</a> [accessed 19/02/2017]<a href="#1"><sup>↩</sup></a><br />
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</span>Graeme Cowiehttp://www.blogger.com/profile/02704481523638679620noreply@blogger.com0tag:blogger.com,1999:blog-4824688363128407673.post-77668763592337200342017-02-13T13:45:00.001+00:002017-02-13T13:45:37.910+00:00The Franchise after Brexit - Questions for Holyrood<b><span style="color: blue; font-size: large;">Context</span></b><br />
<br />
Yesterday evening a discussion emerged on what I suppose we should call "Scottish Twitter" about the extent to which non-British EU citizens might influence the result of any second referendum on Scottish independence. There are about 181k such citizens currently in Scotland according to the Scottish Parliamentary Information Centre (SPICe)'s data. In the last referendum, it was widely considered that this group leaned towards No, motivated in part by the fact that leaving the UK could have interrupted, even if only temporarily, Scotland's place in the European Union and would have affected the legal basis on which many of those people had come to settle in Scotland.<br />
<br />
A little over two years on, and a great deal has changed. Scotland voted for the UK to remain in the EU, but the UK as a whole did not. We still do not have clarity as to what impact this will have on the rights of EU citizens that live here, or indeed those that had been considering moving to the UK in the future.<br />
<br />
Neil Lovatt, a member of the Advisory Board of the political pressure group "Scotland in Union", questioned the relevance of the views of EU citizens in any future independence referendum, since "post Brexit they certainly won't" "be getting a vote".<br />
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<a href="https://pbs.twimg.com/media/C4ep6-LWIAAMOn1.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="220" src="https://pbs.twimg.com/media/C4ep6-LWIAAMOn1.jpg" width="400" /></a></div>
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I do not wish to delve into the politics of this statement, though my views on the franchise are, I think, fairly clear. I take a very permissive view of who should be allowed to vote, and think it a mistake to restrict it on the basis of citizenship. I take the view that any adult ordinarily resident in a relevant territory should be allowed to participate in the political process by voting in elections or referendums.<br />
<br />
I do wish, however, to clear-up the legal terrain that underpins how the franchise works. <a href="https://ukconstitutionallaw.org/2016/05/18/graeme-cowie-prisoners-to-devolved-fortune-the-right-to-vote-and-the-scotland-act-2016/">I have written before about the franchise as it relates to prisoners</a>, and more broadly about who gets to decide what the franchise is. It is very easy to lose sight of <i>why</i> the UK lets certain people vote in certain elections but not others.<br />
<span style="color: blue; font-size: large;"><br /></span>
<b><span style="color: blue; font-size: large;">General Aspects of the Right to Vote in the UK</span></b><br />
<br />
The UK Parliament has been responsible for setting the general terms of the franchise in the United Kingdom. The first thing to recognise is that the UK does not limit the franchise only to British citizens. Voting rights exist for <a href="http://www.legislation.gov.uk/ukpga/1983/2/section/4">"qualifying Commonwealth citizens"</a> (which includes but is not restricted to, British citizens) and citizens of the Republic of Ireland. A "qualifying" Commonwealth citizen is one who either does not require leave to remain, or who has leave to remain, in the United Kingdom. This allows nationals of <a href="http://www.legislation.gov.uk/ukpga/1981/61/schedule/3">over fifty sovereign states</a>, and those holding nationality connected either with British Overseas Territories or Crown Dependencies to participate in all UK elections. The UK therefore takes, in many respects, a more permissive stance on citizenship than other countries do. The right to vote in Canadian federal elections, for instance, is restricted <a href="http://laws-lois.justice.gc.ca/eng/acts/E-2.01/page-2.html#h-3">exclusively to Canadian citizens</a>.<br />
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<b><span style="color: blue; font-size: large;">The EU dimension</span></b><br />
<br />
However, the issue is given an additional layer of complexity by virtue of our membership of the European Union. Under Article 22 TEU:<br />
<br />
<blockquote class="tr_bq">
<b><i><span style="color: blue;">"Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State"</span></i></b></blockquote>
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This is supplemented by <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:31994L0080">Directive 94/80/EC</a>, which regulates and imposes some limits upon this general obligation.<br />
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It is worth pointing out that this obligation only applies to "municipal elections". Nevertheless the UK has chosen to extend the right to vote in <i>devolved</i> elections, to the Holyrood, Senned and Stormont legislative bodies, in addition to those relating to local authorities. This is because the franchise for those bodies was originally determined <a href="http://www.legislation.gov.uk/ukpga/1998/46/section/11">with direct reference to</a> the entitlement to vote in local authority elections.<br />
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<b><span style="color: blue; font-size: large;">Implications for Scotland's elections</span></b><br />
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The result of this is that EU citizens living in Scotland have the right to vote in Holyrood elections. Since the passage of the Scotland Act 2016, the Scottish Parliament has gained legislative competence over its franchise and those of Scottish local authority elections. It could, if it wishes, choose to extend or restrict the right to vote in a way that departs from the prior position under UK electoral law. It has already done this with respect to the minimum age someone must attain before they can vote, cutting it from 18 to 16 ahead of the most recent set of Scottish Parliamentary elections. This power is constrained, however, by the imposition of a new "super-majority" requirement. To modify the franchise for Parliamentary elections, <a href="http://www.legislation.gov.uk/ukpga/2016/11/contents/enacted">at least two-thirds of the whole Parliament must vote in favour of it</a>.<br />
<br />
When the UK leaves the European Union, the requirement to implement the EU Treaty and Directive provisions in relation to the right to vote will likely elapse (unless the withdrawal agreement under Article 50 stipulates otherwise). This would potentially render the words <a href="http://www.legislation.gov.uk/ukpga/1983/2/section/2">"relevant citizen of the Union"</a>, which are inserted into the Representation of the People Act 1983, ineffective for the purposes of the franchise, since the Treaties would no longer apply to the UK.<br />
<br />
This does not prevent the Scottish Parliament, however, from implementing legislation to preserve those rights. It would be open to them to pass a law including EU citizens in the franchise again, or indeed to enfranchise any other group, whether or not they were citizens of a particular country.<br />
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<b><span style="color: blue; font-size: large;">What about referendums?</span></b><br />
<br />
Where things get even further complicated still is in the area of referendums. The UK does not have a prior set of restrictions on who can vote in a referendum. Instead, the legislation that provides for a referendum must itself define who can participate.<br />
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In the first independence referendum, the question who may vote was a matter for the Scottish Parliament. Indeed, <a href="http://www.legislation.gov.uk/asp/2013/13/section/2/enacted">specific legislation was introduced</a> during that referendum campaign to make provision to allow for the registration of younger electors so they would be on the register in time to vote if they were only 16 or 17 on polling day. At that time the electoral roll did not include some of these people because they would not have been 18 at the next relevant election, and that was the prevailing minimum age in UK law to vote.<br />
<br />
Even if it is the case that under EU law Scotland is <i>required</i> to allow EU citizens to vote in Holyrood elections (and that is doubtful as they are not, incontestably, "municipal" elections) it is plainly not the case that it is <i>required </i>that they are allowed to vote in referendums. EU law stipulates no conditions there. Nevertheless, the Scottish Parliament took the position that no one who was allowed to vote in a Holyrood election should be excluded from voting in the independence referendum. They, quite simply, <i>chose</i> to set the franchise that way. EU citizens were therefore permitted to vote.<br />
<br />
Equally, however, in the EU referendum, the United Kingdom Parliament took the position that the franchise should be the same as it was for UK General Elections. It therefore included Commonwealth citizens, but excluded a freestanding right to vote for those who were EU citizens.<br />
<br />
<b><span style="color: blue; font-size: large;">So what does it matter in a future referendum?</span></b><br />
<b><br /></b>
The issue at hand is what would the situation be in a future independence referendum. If the UK leaves the European Union, the default position is likely to be that EU citizens will lose their Treaty-derived right to vote in any UK elections.<br />
<br />
There is a related issue, however. The Scottish Parliament does not <i>clearly</i> have the legislative competence to hold an independence referendum without the UK Parliament granting it such a power. Last time, that power was granted without any legal conditions imposed on what the franchise would be. The Edinburgh Agreement <a href="http://www.gov.scot/Resource/0040/00404789.pdf">proceeded on the basis of political consensus that, at least, the Scottish Parliament's franchise should be used</a> as the starting point and that the Scottish Parliament should decide after its consultation whether and to what extent it should be expanded on the grounds of age. It should be pointed out, though, that in 2012, the Scottish Parliament's franchise was set <i>by the UK Parliament</i> so letting the Scottish Parliament set the franchise for the referendum at all was an innovation and constrained by a set of constitutional norms they did not yet control. This would not be the case in a second referendum, where the Scottish Parliament controls its own franchise.<br />
<br />
I think it is reasonable to expect that the first referendum should set a precedent: the franchise in an independence referendum is a matter for the Scottish Parliament, even more so than it was in 2012-13, since its powers in this area more generally have grown, rather than shrunk in recent years. There should, therefore, be no legal impediment to the enfranchisement of EU nationals or indeed anyone else, should a second independence referendum come along.<br />
<br />
However, it is possible that the UK Government might, this time around, demand that conditions should be imposed on any re-grant of the power to hold a referendum. The possibility of conditions being imposed this time in such a way as they were not last time has been raised by <a href="http://www.heraldscotland.com/opinion/15087530.David_Torrance__Unionists_may_allow_another_referendum_____but_not_on_the_terms_SNP_wants/">David Torrance in his article in The Herald today</a>. He takes the view that the UK Government might insist upon restrictions both on the timing of a referendum and possibly even the question asked. Last time there was a time limit of about two years, within which there was total discretion to hold or not hold the referendum, and the question was set by the Scottish Parliament in consultation with the Electoral Commission. For my own part I am ambivalent about the virtues of anything that could be seen as a political fix-up, on the part of either side in these areas.<br />
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These conditions might, however, include constraints on the franchise. This is therefore a potential bone of contention. If HM Government were to insist on excluding EU citizens from the referendum despite the Scottish Parliament having potentially protected their ordinary voting rights, the question of who has the right to decide the franchise could very easily become the obstacle to agreeing a section 30 order.<br />
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<b><span style="color: blue; font-size: large;">Conclusion</span></b><br />
<b><br /></b>
I think Neil Lovatt is wrong when he says that, post Brexit, EU nationals "certainly won't" have voting rights in Scotland, let alone in relation to a referendum. Ultimately these are <i>choices</i> that the Scottish Parliament has, by the precedent, been entitled to make. If the UK Government wishes to create problems for itself by insisting on constraints that it did not insist upon last time, that would likely be very politically unwise indeed.<br />
<br />
Leaving the EU does, however, re-open the question of voting rights generally in the United Kingdom. As part of the emerging conflict of political cultures, the franchise is a possible avenue where this "open v closed" society dynamic could come into life. It will say a lot about our country whether this change leads us to include or exclude people from our political processes. One might even say this is the real mark of who exactly it is that is "Taking Back Control".Graeme Cowiehttp://www.blogger.com/profile/02704481523638679620noreply@blogger.com3tag:blogger.com,1999:blog-4824688363128407673.post-13863241326929369222017-02-03T14:37:00.001+00:002017-02-03T14:49:12.457+00:00Ratifying a Withdrawal Agreement - The Lib Dem Amendment<b><span style="color: blue;">Context</span></b><br />
<br />
The Liberal Democrats have tabled an amendment to the European Union (Notification of Withdrawal) Bill. This legislation was introduced by the government in response to the adverse judgment in <i><a href="http://www.bailii.org/uk/cases/UKSC/2017/5.html">Miller v Secretary of State for Exiting the European Union</a></i>, in which the Supreme Court concluded that Parliamentary authorisation was required before the Prime Minister could, in the terms of <a href="http://www.lisbon-treaty.org/wcm/the-lisbon-treaty/treaty-on-European-union-and-comments/title-6-final-provisions/137-article-50.html">Article 50 (2)</a> TEU "notify the European Council of its intention" to withdraw from the EU.<br />
<br />
The proposed amendment would require the United Kingdom and Gibraltar to hold a referendum on the "exit package proposed by HM Government at conclusion of the negotiations triggered by Article 50(2)". The choices in that referendum are to "support the Government's proposed new arrangement" or that the United Kingdom should "remain a member of the European Union".<br />
<br />
<blockquote class="twitter-tweet" data-lang="en"><p lang="en" dir="ltr">Here's our amendment demanding the British people have the final say on the Brexit deal through a referendum <a href="https://t.co/QPSV5OnHrM">pic.twitter.com/QPSV5OnHrM</a></p>— Lib Dem Press Office (@LibDemPress) <a href="https://twitter.com/LibDemPress/status/826380733421862912">January 31, 2017</a></blockquote><script async src="//platform.twitter.com/widgets.js" charset="utf-8"></script><br />
<br />
There are two problems with this amendment.<br />
<br />
<b><span style="color: blue;">Problem One - A withdrawal agreement is optional</span></b><br />
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Firstly, there might not be an "exit package". Article 50 notifications trigger a 2-year negotiation period that can only be extended by the <i>unanimous agreement</i> of the 28 Member States. Article 50(3) is very clear about this. The Prime Minister has already contemplated the conditions in which she might <i>reject </i>a deal that is proposed by at least a qualified majority of the remaining Member States. In those circumstances, it is not even clear that the British people would, under this proposed amendment, get the opportunity to participate in a referendum: there is no "exit package" proposed by the government in those circumstances, and our obligations under EU law would extinguish regardless.<br />
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<b><span style="color: blue;">Problem Two - Article 50 is not unilaterally reversible</span></b><br />
<br />
The second problem is that, even if the UK Government does arrive at an "exit package" with the other Member States, it is not in the UK Government's gift to offer the British people a second chance to stay in the European Union. If the deal is rejected at the ballot box, the default <i>legal</i> position is that the United Kingdom leaves the EU without an exit deal. It's not just that Theresa May could <i>ignore</i> the result of an "advisory" referendum in either direction; it's that it's no longer in her gift to give effect to one of the results.<br />
<br />
The orthodox view of Article 50 is that a notification, once made, cannot unilaterally be revoked. The UK could not "cancel Brexit" on its own simply because a referendum saw the British people change their mind. This point of law was <i>common ground</i> in <i>Miller </i>[see para 26]. A <a href="https://fullfact.org/law/why-there-brexit-court-case-ireland/">legal challenge in the Irish Courts</a> has been brought by Jo Maugham QC to try to establish this point, but it is unlikely to reach the Court of Justice of the European Union on a reference and even if it does it is likely to lose. For one thing, their case appears to have relied on arguing that the UK has already notified the EU for the purposes of Article 50, something which clearly cannot be the case now that the Supreme Court has said notification without Parliamentary authorisation would be unlawful (and therefore not, per Article 50(1) "in accordance with [our] constitutional requirements").<br />
<br />
In order for the UK to stay in the EU following a second referendum, therefore, the other Member States would have to do one of two things. Either they could agree unanimously indefinitely to extend the deadline of the Article 50 process, and to normalise the cancellation of the Article 50 process by way of an amendment to the Treaties under <a href="http://www.lisbon-treaty.org/wcm/the-lisbon-treaty/treaty-on-European-union-and-comments/title-6-final-provisions/135-article-48.html">Article 48 TEU</a> (which would itself require the full ratification process through all 28 Member States). Or alternatively, they would have to try to negotiate a second "withdrawal agreement" that was in fact completely the opposite. Although such an agreement would only require a qualified majority to pass, it may be considered a violation of the Treaties to use Article 50 for the opposite of its intended purpose. Such a "not really a withdrawal agreement agreement" would also still have to be ratified in accordance with the constitutional requirements of every single other Member State.<br />
<br />
There is also a fundamental democratic point here. If you do not like Theresa May's deal, you might not like it for one of two pretty diametrically opposed reasons. How should you vote in this proposed referendum if you want a WTO Brexit? The blunt answer is you do not know until or unless what the consequences of rejecting the deal will in fact be are clarified. May's deal might be preferable to you if the consequences of rejecting it are that we do not leave at all. The same is true for a Remainer. If you would prefer May's Brexit deal to a Hard Brexit, it is not reasonable to expect you to vote against that deal on the wing and a prayer that the exit process can be and will be reversed.<br />
<br />
So even if the Lib Dem amendment is well intentioned, and there is likely to be fundamental political opposition to it, it fails to protect the right of the British people to choose what actually appears on their ballot papers.<br />
<br />
<b><span style="color: blue;">Proposed improvements</span></b><br />
<br />
So what <i>should</i> they be doing to get their desired ends, assuming it is democratically defensible and feasible to get through Parliament?<br />
<br />
1. The Lib Dems and like-minded allies should be seeking to restrict the types of withdrawal agreement that HM Government are permitted to <i>agree to. </i>Their amendment should contain a prohibition against the Prime Minister or any other government representative consenting to an agreement that fails to include a provision that either <i>allows</i> or <i>requires</i> the UK not to leave the European Union if the exit deal is rejected in a referendum. This would allow an agreement to be ratified, <i>contingent upon</i> the outcome of that referendum. WTO Brexiteers and Remainers would therefore know exactly what they were voting for.<br />
<br />
This is not an unprecedented approach to how the UK regulates its relationship with the European Union. Indeed this is exactly the kind of limitation imposed by provisions in the European Union Act 2011, which the Coalition Government passed. It imposes restrictions on Ministers variously, "giving a notification", "voting in favour of or otherwise supporting", or "confirming the approval of" certain decisions or processes giving rise to the exercise or transfer of Treaty powers on behalf of the United Kingdom. There are generally two mechanisms by which the Act allows these powers to be exercised: approval in a referendum or approval by Parliament.<br />
<br />
2. Their amendment should impose a duty on the government to hold a second, In/Out referendum at least three months before the expiry of the Article 50 2-year window in the event that a withdrawal agreement has not yet been reached. Although such a referendum could not be <i>legally binding</i> without the Council's agreement, this would at least carry a great deal of political weight. Such a requirement would also disincentivise both the EU from being extremely harsh in its negotiating position, and disincentivise the Prime Minister from walking away from a withdrawal agreement on favourable terms, simply because it contained a second referendum requirement.<br />
<br />
<b><span style="color: blue;">Parting thoughts</span></b><br />
<b><br />
</b> Brexit is going to happen, and as it stands, it's going to be a pretty brutal one. It is going to hand a lot of power back to the UK Government, rather than Parliament. The <i>Miller</i> case gave Parliament a small window in which to assert itself and to constrain the ability of the Prime Minister to act on our behalf. Whether the intention is still, a little delusionally, to stop Brexit, or even if it is well placed, to try to mitigate the damage, the requirement of a second referendum could change the dynamics of the negotiations considerably. But it requires Parliament to be smart: to strengthen Britain's negotiating position by weakening the Prime Minister's. In its current form, the Liberal Democrats' amendment fails to do that.Graeme Cowiehttp://www.blogger.com/profile/02704481523638679620noreply@blogger.com0tag:blogger.com,1999:blog-4824688363128407673.post-68795339796200763932016-11-13T16:20:00.000+00:002016-11-13T16:26:14.688+00:00Howling at the Moon? Yep.On Saturday, the Scottish Liberal Democrats confirmed themselves as unconditional Unionists.<br />
<br />
This is not liberal.<br />
<br />
The Parliamentary Party turned on a motion that was itself an attempt to heal the divide between members of the party for whom the result of the EU referendum will likely compel the choice between two unpalatables. They showed a total unwillingness to listen, to acknowledge that the Unionism of far too many, especially many in the Scottish Tories, is unthinking, tribal and contrary to the interests of either people in Scotland or other parts of that Union.<br />
<br />
They falsely accused the movers of the motion of pushing them to break a pledge they made to the electorate in May. The movers of the motion deliberately framed the motion in such a way so as not to put them in that position. Whatever your view of the merits of either the manifesto commitment against supporting a referendum in this Parliament, or the donor-seeking Scotland in Union pledge overtly to oppose any such referendum, we were very clear we would not and could not ask them to go back on it.<br />
<br />
Yet the leadership's inner-circle lined up one after another, frankly, to tell barefaced lies to the Conference hall. They smeared those bringing the motion as unwitting nationalist conduits, for having the audacity simply to ask that they do two things. Those two requests were possibly the most painfully reasonable one could hope for a liberal and democratic party to agree to.<br />
<br />
First, we asked them to talk to the Scottish Government, and to go to the table without preconditions and demands. We wanted them to work with their group of experts to identify possible ways of protecting Scotland's interests in the EU. Rule nothing in; but rule nothing out, until the lie of the landscape is clearer.<br />
<br />
Their response? To say that the Muscatelli Group was a PR exercise and a ruse for independence. Never mind that a longstanding and highly respected Labour MEP sits on this group. Never mind that Sturgeon has been back-peddling on the imminence of a referendum ever since June, and has directed her focus towards single market and free movement protection since. To expect this group to have done much before Art 50 has even been invoked is disingenuous, and not even to work with them is narrow-minded.<br />
<br />
Secondly, we asked them to bring their proposals, once the terms of a Brexit deal are known, before Conference, so that the membership could freely and openly discuss the best way forward for Scotland. The amendment they voted for removed that commitment. The leadership therefore has a free hand to ignore the concerns of the membership about whether, and to what extent, leaving the European Union alters Scotland's interests in the British Union.<br />
<br />
Several times those of us with concerns about the party's increasingly default hostility to anyone who didn't toe the line on the constitutional question have reached out, to try to reach a compromise that lets us move forward as one liberal voice. Time and time again those requests fell on deaf ears. There is now barely any room whatsoever for even critical unionists in the Scottish Liberal Democrats. The gravity of the party has shifted, and it amounts, in essence, to a slightly more cosmopolitan Conservative and Unionist party that doesn't like Iain Duncan Smith.<br />
<br />
Some people yesterday said that it was a mark of strength that the Lib Dems allow debates like this. In truth it was nothing of the sort. Instead of having respect for the perspective of members of their own party who disagreed with them, the Parliamentary Party treated them like pests to swatted. They opposed a motion that would have very specifically put the future positioning of this party in its membership's hands.<br />
<br />
That membership would, in all probability, have, when the time came, reaffirmed the party's opposition to Scottish independence and may well even have extended its opposition to another referendum, even beyond the 2016-21 Holyrood Parliamentary session. But what would have mattered is that the leadership would have been obliged to justify their stance and ask the membership to back them, when all the information was laid bare and made available to the membership and to the rest of Scotland as a whole.<br />
<br />
Put simply, they don't trust the members of the Party, and they don't trust the Scottish people.<br />
<br />
A political party for whom both of those things are true might not become extinct, but it will also never be relevant in Scottish politics. Taking two mainland constituency seats to replace two mainland list seats isn't "winning again"; it's palliative care that writes off people who are liberal by politics to court tactical Tories.<br />
<br />
And make no mistake, in 2021 and 2026 the Tories will come gunning for those seats. They have the money and after 2016, they have the ground operation. And when that happens, the Lib Dems really are in trouble.Graeme Cowiehttp://www.blogger.com/profile/02704481523638679620noreply@blogger.com8tag:blogger.com,1999:blog-4824688363128407673.post-86515958153124462662016-10-06T14:24:00.000+01:002016-10-06T14:48:55.367+01:00Citoyens du MondeIn her speech to Conservative Party conference, Theresa May said that if you are a citizen of the world you are a citizen of nowhere.<br />
<br />
Insodoing she surrendered any moral right to criticise literally anyone for being a "divisive nationalist".<br />
<br />
I have never been comfortable with the concept of citizenship. The idea that as individual human beings we owe some sense of inherent loyalty to a set of political institutions, or to a flag, or to a nation is one that makes no sense at all. As the infamous political compass put it, you don't choose your country of origin so it is foolish to be proud of it.<br />
<br />
But citizenship is important in our world. This idea of commonality, that because you exist and you are a part of our society, that you have a basic expectation of dignity, respect, protection, is vital if progress is to be achieved.<br />
<br />
The problem with citizenship is that it is exclusive. Arbitrarily so. It excludes people, who would be far better advocates of the goals of citizenship than most people who are actually citizens. It says that they don't belong. Not really. Because they happened not to be born here, or not born to the right parents. We deny people citizenship because they don't speak our language quite well enough to tick a box, or because they haven't lived here long enough, or because a relative with a funny sounding name did something that was cruel or inhumane.<br />
<br />
Citizenship was not invented to exclude; it was invented to empower. One of the best things about EU citizenship was that it sought to say something about who we are as a political community. It said that, when we work together, the plumber from Warsaw is just as important to Britain whether he comes here for a year or a lifetime. That the student from the Czech Republic can be as involved in our public life and our politics as the family that has lived here for countless generations. That, when you strip back the barriers, we are all essentially just people. People with dreams, aspirations, a desire to make the lives of ourselves and those around us better. The respects in which EU citizenship fell short wasn't that it gave our neighbours too many rights; it's that it didn't give enough of our neighbours the dignity and opportunity of a life in our country.<br />
<br />
To say that we cannot be citizens of the world is insulting. The fact that we have states and nations does not alter the fact that the plight of the child in Aleppo is just as important, as morally significant, as that of the child in Ardrossan or Aldershot. Our capacities to assist may differ, but that is not something they control and therefore not something by which we should judge them.<br />
<br />
It is Theresa May that does not understand the true meaning of citizenship. When people say they are citizens of the world they do not say that their loyalty is to nothing; they say it is to humanity and the pursuit of the truly common good. It is just a fact that I have more in common with many people in other countries than I do with some people who live a five minute walk away. To try to impose special duties on my belonging to Britain as a community is just as offensive as the idea you should impose them on someone who comes here to make a better life. Citizens of the world say that what unites us is our capacity to empathise, and our need to be accepted, protected, and welcomed into the communities in which we live.<br />
<br />
The tax avoiders and croney businesses Theresa May criticises don't claim to be "global citizens". Corporations can scarcely be said to be citizens at all, least of all to any nation or state. Where their actions are morally offensive they are so not because it is "disloyal" to Britain but because they disown empathy to the whole of humanity. They reject the spirit of what it means to participate in any society; not just the ones in Britain. It is the individual human beings they affect who are offended against, not the state. Not the nation. It's the people who can't get treatment because there is no money for the cancer ward. It's the people who lose their jobs because a businessman exploits bankruptcy laws to avoid paying his suppliers. It's the family that chooses whether to heat or eat.<br />
<br />
None of this requires us to care where they were born, what the colour of their skin is, what language they speak, what is their religion. If citizenship really requires these arbitrary questions of moral concern to divide or communities into the deserving and the undeserving then truly it is preferable to be stateless.<br />
<br />
But we're not going to let you win Theresa May. You aren't even turning the clock back to 1950. Because at least then the trajectory of human progress was towards inclusion, openness, and the setting aside of the sheer pettiness of nationalism. An ideology that legitimised the wasting of tens of millions of human lives, held back humanity's potential and made us an altogether inferior civilisation.<br />
<br />
Citizenship means global citizenship. And whether you like it or not, we are going to make a success of it.Graeme Cowiehttp://www.blogger.com/profile/02704481523638679620noreply@blogger.com0tag:blogger.com,1999:blog-4824688363128407673.post-47574440478407732052016-06-27T18:01:00.000+01:002016-06-27T18:26:00.455+01:00Number 10 has a Plan<br />
It is not the case that Number 10 do not have a plan. They have a very clear plan. David Cameron let the cat out of the bag in the House of Commons today. He told Angus Robertson, Leader of the SNP group, that Scotland should want to stay inside two single-markets: the British one and the European one.<br />
<br />
Similar, "helpful" questions came from Ken Clarke, who pushed fairly overtly for Parliament's preference (for which read, the least Brexit-like) and Pat McFadden, who asked him if he knew of any country which was admitted to the single market but which did not have to accept free movement of workers (the answer obviously being "no, none").<br />
<br />
<b><span style="color: blue; font-size: large;">The Plan</span></b><br />
<br />
The United Kingdom is going to negotiate to become a member of the European Economic Area, or the EEA. The so-called "Norway" option. There will be some quibbles over the specifics and there may be some variation, but it is what is happening.<br />
<br />
The Government is holding-off invoking Article 50 for a very good reason. This is a Brexit Prime Minister's button to push, and the longer it isn't pushed, the less room there is for them to save face without agreeing to a terrible deal. Cameron worked this out when he made his resignation statement on Friday Morning. The only person who can successfully lead the UK out of the EU, in the absence of an EEA offering, is a Tory Prime Minister with a substantial (50+) seat majority. With an EEA offering, the coalition of compromise is there across the parties.<br />
<br />
Perhaps most importantly, Cameron has essentially decided that the political price for this decision should be that the Brexit Tories should be the ones to be very clearly and publicly responsible for the reneging on promises about immigration, financial contributions to the single market, and economic instability. Put plainer still, PM Boris Johnson will be the one that is blamed for a generation, by Remainers for taking us out of the EU, and by Leavers for the lies and a settlement that undermines the core of the democratic choice he persuaded them to take.<br />
<br />
<b><span style="color: blue; font-size: large;">What would it mean</span></b><br />
<br />
The ironic thing about the EEA is that it is the solution that does Britain the least economic damage and causes the least disruption, yet it is also the one choice that does the polar opposite of "taking back control". We will find ourselves bound by the vast majority of the legislation passed and promulgated by the Commission, Council and Parliament, but will have zero democratic input into those decisions.<br />
<br />
It is true that the UK would regain some control over the fisheries and agriculture policies, but we would probably pay roughly the same membership fee as we do now (per capita, Norway pays more!) and we have to protect most, but not all of the treaty rights to free movement of workers.<br />
<br />
<span style="color: blue; font-size: large;"><b>What about Scotland?</b></span><br />
<br />
This is important for Scotland for several reasons.<br />
<br />
<b><u>The UK is leaving the EU</u></b><br />
<br />
It is now extremely unlikely that the UK will remain in the EU. There is no intention among those who matter to try and outright reverse this result. The priority of those who will be in government has swung firmly behind damage limitation.<br />
<br />
<b><u>Reverse Greenland won't happen</u></b><br />
<br />
That means that any hopes of Scotland staying in the EU proper, while remaining in the United Kingdom, is unlikely. The only circumstances in which that could happen is if some kind of "reverse Greenland" proposal is agreed, to try to ring-fence membership for the UK that only has territorial application to Scotland, as part of the transition to the EEA.<br />
<br />
This is a nice, seductive and attractive idea on the surface, but it's totally unworkable. In reality, it involves either the break-up of the British single market into EU and non-EU zones, or else there is very little that can be offered for Scotland that the EEA doesn't provide already. Differential free movement <i style="font-weight: bold;">workers rights</i> within a state would also be a nightmare to get right, albeit the actual border enforcement would not itself be radically different from the Norway/Sweden arrangement.<br />
<br />
It also faces considerable political obstacles. The EU will not want to set a precedent whereby states can effectively "opt-out" parts of their state from the most onerous parts of EU membership. To do so would undermine the core objectives of the EU. It would be difficult to reconcile the "rights" of these "within a member-state" member-states in the European Council and its Parliament, and difficult to establish lines of accountability for Treaty obligations. The EU is, first and foremost, a Union of sovereign states, and any suggestion that something different would be arrived at would represent such a fundamental change in its nature as an institution as to justify far wider treaty change.<br />
<br />
This is completely against the interests of especially the Eurozone. They seek, if anything, greater flexibility to allow for aggressive integration of its member-states. That is not something that can be done while creating different tiers and types of European Union membership. It is also not something that is likely to be entertained by any other state in the EU with a secession movement, lest differential membership terms be seen as a stepping-stone towards outright independence.<br />
<br />
<b><u>Scotland has to Choose</u></b><br />
<br />
Given this, Scotland will soon have to make a choice. They will have, in all likelihood, the opportunity to choose between three outcomes:<br />
<br />
1. Accept being part of the UK, which is itself a member of the EEA<br />
2. Become an independent state, securing its own EEA membership immediately or almost immediately as an intermediary step to full EU membership; or<br />
3. Negotiating as part of the UK's EEA settlement that Scotland receives accelerated EU membership if it chooses to vote to leave the UK in a second referendum<br />
<br />
<b><u>My Preference</u></b><br />
<br />
As I have indicated elsewhere, it is now (tentatively) my belief that the third option is the most desirable of those three, but it will be the most complicated to achieve. I also believe that this option has its fewest drawbacks if it transpires that the rest of the UK would be in the EEA rather than a looser arrangement with the rest of Europe. We would still, in those circumstances, functionally retain a single market with the rest of the UK, and would be able to trade with them without any serious impediment. The same, incidentally, would be true of the second of these three options as we'd both have the same relationship with the European single-market.<br />
<br />
In many respects, therefore, very little in terms of the economic relationships between Scotland and the rest of the United Kingdom would stand to change if we seceded. The key <i>impediments</i> to Scottish independence would actually be fundamentally the same as they were in 2014. On the currency, the pound has weakened, albeit it may strengthen in the coming months. Back in 2014 I always said that a separate Scottish currency, initially pegged to either the pound or the Euro, was preferable to a currency union.<br />
<br />
I always thought that problem was overblown. It is a necessary challenge that comes with independence, but in the medium term the answer is obvious and it is not clear that it would significantly impede trade. There will be very little pressure for Scotland immediately to join the Euro, not least because of its own current challenges and the pragmatic interests of both Europe and Scotland in finding a responsible way to address Scotland's deficits, which substantially exceed the Exchange Rate Mechanism's minimum requirements.<br />
<br />
The fiscal situation is definitely more acute. I am not going to deny that; indeed I have argued at length about it. But that is the case not <i>because</i> of Brexit but those underlying economic conditions. If anything, the effect of our withdrawal from the EU may well affect the balance of tax generated and public spending committed within the United Kingdom substantially. If Scotland makes clear that it intends to be a full member of the EU, rather than just an EEA member, it may stand to benefit from some of the jobs and business, especially in the financial sector, that the UK currently has in London, thus far seen as a "gateway" to the European Union.<br />
<u><br />
</u> <b><u>Settling the Mandate</u></b><br />
<br />
What is clear, though, is that Scotland very clearly indicated a preference to be involved in the political institutions of the European Union, rather than just the single market. I think it is necessary, once we know the tenor of the UK's new relationship with the EU, that Scotland should be given a clear opportunity to choose between the two Unions, and the two relationships that come with them.<br />
<br />
If it is the view of the people of Scotland that this fiscal transfers enjoyed by Scotland, the stability of a common currency with the rest of the UK, and the new likely control of fisheries and agriculture, are are better option than seeking outright European Union membership, there would in the event of a referendum be a clear choice for those people. You can still vote No. That would provide clarity as to the conflicting two mandates Scotland has issued in the 2014 and 2016 referendums. This is not a vote British Unionists should fear. There would also still be a clear base for all Liberals, keen to keep all of the UK in the EU, the opportunity to make the case for reintegration of each of the respective two states in decades to come, should the EEA prove an unsatisfactory deal.<br />
<br />
<b><u>Uncertainty</u></b><br />
<b><u><br />
</u></b> People have absolutely nothing to fear from another Scottish independence referendum, given the very substantial uncertainty that now afflicts both what it means to persevere with the British Union or to depart from it in favour of the European one. What is different is that we need to know what the depth of feeling of the Scottish people was at, apparently, wishing for a diametrically opposite conclusion to those of the English and Welsh people in relation to the European family. The only way we can resolve that democratic deficit is another referendum.<br />
<br />
If the difference between the EEA and the EU really is so shallow that the Scottish people really do not mind, I suspect that the British Union, with its pooling and sharing of resources, would in the minds of the Scottish people outweigh that of Europe. In those circumstances, those who prefer or see their primary loyalty to that Union have absolutely nothing to fear from another plebiscite.<br />
<br />
Indeed they may be able to kill Scottish independence for a generation with a second No vote in quick succession. I cannot see what they stand to lose, if they are also passionate Europeans, in those circumstances. For if the Scottish people see the EU as <i>so</i> fundamental that we should leave, then leaving demonstrably would advance those interests and values and that is something we should enable them to do.<br />
<br />
<span style="color: blue; font-size: large;"><b>Conclusions</b></span><br />
<br />
The fact that we are negotiating Britain's future in Europe, with a conclusive end-point, in many respects actually <i>removes </i>some of the uncertainty of a future referendum for Scotland. The fact that the UK is having to clarify <i>its</i> terms of departure from the EU makes it much easier for the EU to consider the hypotheticals for Scotland, without hitting opposition from other states. Countries like Spain will be far more willing to entertain "pre-negotiation" for Scotland when they know it only sets a precedent where the parent state is leaving the EU already, because Spain has no intention of leaving the EU.<br />
<br />
Imaginative thinking doesn't have to mean delusional thinking in the aftermath of this referendum result. The bottom line is that, once we know what the UK is likely to get as a relationship with the rest of the EU, Scotland must clarify its own trajectory. Not to maintain this is, I'm afraid, simply anti-democratic, and actually will turn Scotland's politics back away from real bread and butter issues.<br />
<br />
If you want a neverendum, constitutional uncertainty, and economic insecurity, by all means fight Brexit at a UK level. You will make the job harder to secure an EEA agreement, meaning the rest of the UK will diverge more harshly from the EU, and you will make the break-up of the United Kingdom more likely. You will give the SNP an easy narrative for the next 5 years to avoid accountability on its domestic agenda. And the Scottish people will harbour an unresolved grievance, on both sides of the divide.<br />
<br />
I don't want that. I suspect in their heart of hearts, most Unionists don't either.Graeme Cowiehttp://www.blogger.com/profile/02704481523638679620noreply@blogger.com0tag:blogger.com,1999:blog-4824688363128407673.post-11575391067084552712016-06-27T12:16:00.000+01:002016-06-27T12:20:48.830+01:00We can't have bothSometimes the Scottish Liberal Democrats needs a bucket of ice water dropped on its head.<br />
<br />
There was a members meeting on Sunday in Edinburgh in which we were to discuss the way forward. Chatham House rules mean I am restricted in what I can say but I think it's fair for me to outline the broad nature of the challenges that face the party. It is to Willie Rennie's credit that the meeting was called at all, but there was a real feeling among many at that meeting that the party just isn't facing up to the reality of the new constitutional situation that we occupy.<br />
<br />
There were arguments that we should continue to fight for the UK to remain in the EU. Effusive praise was lavished on Tim Farron for taking on the mantle of the 48. Surely to goodness followers of Scottish politics of all places should feel uncomfortable with the imagery of that. But the strategy, whilst a good rallying call for the party and its values <i>in England</i>, is a total waste of time in terms of getting something done. Tim Farron is not going to be the next Prime Minister and even if he is he is not going to be able to use a General Election mandate just to "cancel" Brexit without riots in the streets of Northern English cities. The people have spoken.<br />
<br />
Not wanting to choose between two uncertainties is a natural human instinct. But you don't always get to decide what decisions you're asked to make. And Scottish Liberals are closer than ever to being forced to choose between a British Union and a European one.<br />
<br />
We have to be ready for that eventuality. Putting off deciding is cowardice. And we absolutely have to back a Scottish independence referendum if, and this is the key point, all avenues to keep Scotland in the EU are exhausted.<br />
<br />
Willie was very keen after Spring conference to insist that the party had said two contradictory things when it asked to lift a moratorium on fracking while endorsing tougher carbon limits. So he clearly knows that politics is sometimes about making decisions between things that turn out to be incompatible.<br />
<br />
A sizeable proportion of the people at Sunday's meeting tried to make that clear: unless the EU comes up with some sort of "reverse Greenland" (almost certainly legally and practically impossible because of both the politics of other member states and because it would rip apart the British single market) all that is left is for Scots to choose between Unions.<br />
<br />
That isn't turning to Scottish nationalism or buying into a trap. That's just the choice we have. It is the competing of two different internationalisms, which have more in common with each other than the nascent English nationalism that put us into this sorry mess without so much as a care in the world for how it would affect Scotland.<br />
<br />
The unavoidable reality is that we are approaching a situation where the mandate Scotland gave on Thursday is incompatible with the mandate it gave in September 2014 and the mandate England and Wales gave on Thursday. The core premises upon which that 2014 mandate was undertaken are now void. Hundreds of thousands of the 2 million people who vote No were materially influenced by the fact that a No vote would secure Scotland's place in the EU. The EU is constitutionally significant in a way literally not one single other international organisation is. It lives and breathes through our laws, our politics, our constitutional politics, and the nature of what it means for Britain to be a common endeavour. The No vote was not a vote to endorse the British project as it existed in 1970, or even 1707. It was to endorse it, with its fundamentals, as at 2014.<br />
<br />
The only solution, the only way to reconcile those mandates, if staying in the UK means Scotland is not in the EU, is another independence referendum.<br />
<br />
I know it's not reasonable to expect people who feel a close emotional attachment to the UK to campaign against it. But to be against even making the choice is an even more terrible stance for a democratic and European party to take. Opposing a referendum in any circumstances makes it absolutely certain that we are anti-Europe unless the UK does a volte-face. That is simply unacceptable to me and to hundreds of other members and I suspect thousands of supporters.<br />
<br />
The Parliamentary party are terrified they'll lose trust in the electorate if they break a manifesto promise not to support another referendum. They ignore the fact that the vast majority of the electorate didn't vote for them anyway. In times of constitutional crisis, all bets are off.<br />
<br />
They are taking the wrong lesson from the tuition fees debacle. The crime was not breaking the pledge; it was making a pledge that in the circumstances it was designed to be relevant for was totally unsustainable. It's time we level with the public that we made an error on May. Because we did.<br />
<br />
At the very least the Scottish Lib Dems have to support another independence referendum. My judgment now is that liberalism is best served by Scotland seeking an undertaking for accelerated admission as an independent member into the EU, or even in the worst case scenario applying as a new member. I understand that on that aspect many liberals will vigorously disagree, and understandably. That is why we need a Special Conference, both to establish whether and what the official party position should be in a future referendum, and to make it clear in any motion that members and Parliamentarians are free to campaign as their conscience dictates.<br />
<br />
To oppose the choice is itself to choose however. And it's the wrong choice. At the very least Scotland needs the chance to decide which internationalism it prioritises. And if that is internationalism with the other nations of the British Isles so be it.<br />
<br />
Those turning to independence were implicitly accused at points that they were showing a lack of imagination, buying into Scottish nationalist narratives. Frankly I think the opposite is true: holding steadfast to the two Unions position isn't a display of imagination but of delusion. Imagination needs to have practical import and we are the only ones at the moment willing to imagine where this crisis is actually heading.<br />
<br />
I didn't say it at the meeting because I spoke early in the day and I wanted to be constructive, but if this party fights against a second referendum even when that referendum is in the interest of liberalism and Scotland, I am leaving it. I've given it several last chances to show courage on the constitution, and it has disappointed me time and time again.Graeme Cowiehttp://www.blogger.com/profile/02704481523638679620noreply@blogger.com1tag:blogger.com,1999:blog-4824688363128407673.post-28888645674313671392016-06-02T19:11:00.000+01:002016-06-02T19:11:06.290+01:00Would the First Minister please grow-up?The purpose of First Minister's Questions is to allow the Scottish Parliament to scrutinise the policy decisions and implementation of the Scottish Government. This is vital in representative democracy. Governments, even those with the support of the majority of members of Parliament or even, dare I say it, the majority of the electorate, still are not perfect, and their judgment and their competence has to be kept under constant scrutiny. That is why a Parliament exists at all, rather than that we just let the government pass legislation uninhibited for a five-year term.<br />
<br />
Just because you've won one, or two, or three elections, does not mean that you can or should just do whatever you like. Nor does it mean that everyone who voted for you agrees with everything, or even most, of what your platform for government entailed. Of course you are entitled to attempt to implement as much of that as possible, but popular support is not, in and of itself, a justification for making <i>any</i> policy decision whatsoever. Being popular does not mean that your judgment is good, or that your ideas are good, or that the way you put them into practice is good. And it is no defence to the accusation that your record or decisions are bad to say "but your decisions are worse".<br />
<br />
To this end, the First Minister, Nicola Sturgeon, has continued into this Parliament one of the most nauseating and childish tendencies of Scottish politics. Whenever she was questioned about her record in the last Parliament, her response was often to boast "we won the election" or "your party is a mess as we beat you". As several commentators observed in the election itself, she said she was happy to be judged on her record in government precisely because she knew that those planning to vote for her mostly would do so regardless or in spite of it.<br />
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<span style="color: blue; font-size: large;"><b><i>"My manifesto" is not an answer</i></b></span><br />
<br />
Today in Parliament, Patrick Harvie drew attention to a report on poverty, the findings of which the First Minister had agreed to implement. It stated, in relation to local taxation, that the council tax was "no longer fit for purpose" and was hugely regressive. This was a position the SNP had actually held for some time, and in the past Nicola Sturgeon herself had said that the council tax should be replaced with something fairer. However, the SNP government, after 9 years in charge, chose only marginally to tinker with council tax, making it slightly less unfair instead of replacing it outright.<br />
<br />
He asked her why she wouldn't take the opportunity to be bolder, in light of that report, and abolish council tax in favour of a more radical alternative. This was Nicola Sturgeon's response:<br />
<br />
<blockquote class="tr_bq">
<b><i><span style="color: #660000;">"We put forward our plans, plans that I believe were bold. Patrick Harvie put forward his plans, and the electorate cast their votes. I'm standing here as First Minister with a mandate to take forward the proposals that we were elected on."</span></i></b></blockquote>
<br />
This is not an answer to Patrick Harvie's question. She provided no substantive argument as to why a more radical alternative would be a worse policy. There is no point in First Ministers Questions if the response we are going to get to substantive criticisms of her government's platform is "I was elected to implement my government's platform and we won." Just because you have an electoral mandate to do something, doesn't mean you should do it. Bad ideas are bad ideas regardless of how many people support them. The mantra of Keynes that when the facts change so should your mind is important.<br />
<br />
Governments are supposed to be responsive to evidence and criticism and to explain <i>why</i> they are doing what they are doing and just as importantly why they are <i>not</i> doing what they are not doing. No one is questioning Nicola Sturgeon's <i>authority</i> simply to tinker with council tax. Harvie was questioning <i>why</i> that's what she wants to do. Just because she won the election doesn't mean that Parliament, and the people, are not entitled to an answer to that question. And she has, or at least gave, no answer.<br />
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<b style="color: blue; font-size: x-large;"><i>"Your point is invalid because I have more votes than you"</i></b><br />
<br />
Similarly, Willie Rennie asked the First Minister about a Memorandum of Understanding entered into between Nicola Sturgeon and two Chinese companies for £10 billion of unspecified infrastructure projects in Scotland. Those companies were SinoFortone group and the China Railway No 3 Engineering Group. The parent company of the latter has been implicated in corruption charges and human rights abuses in various projects, including a number in the Democratic Republic of Congo. Rennie sought assurances that no government contracts would be awarded to this company, which has been heavily criticised by other countries, and was in fact blacklisted by the Norwegian state oil fund. He also drew attention to Amnesty International's criticisms of the company and the reasons they gave why economic cooperation with CRG was bad for human rights.<br />
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Sturgeon's response?<br />
<br />
<blockquote class="tr_bq">
<b><i><span style="color: #660000;">"Hold the front page. First Minister of Scotland seeks to explore opportunities for investment and jobs into Scotland. SHOCK HORROR. That is part of the job of First Minister of this country and the fact that Willie Rennie doesn't recognise that is a core responsibility of the First Minister is probably part of the reason why he will never stand here as First Minister of this country."</span></i></b></blockquote>
The only people impressed with a response like that must be those that unthinkingly clap their seal-like flippers for hands to absolutely anything she says. Literally no one that criticises a trade deal on the grounds of its human rights implications doesn't think it's the responsibility of a government to attract inward investment. What the question asked was about was the kind of compromises the First Minister was prepared to make in order to procure that investment, or the lack of due diligence undertaken before signing the Memorandum of Understanding. Instead, we get a response that basically amounts to "I got more votes than you so you can't criticise me ne-ne-ne ne-ne-ne". It's risible.<br />
<br />
<b style="color: blue; font-size: x-large;"><i>Just not good enough</i></b><br />
<br />
This represents a hubristic tendency in the SNP leadership that basically thinks it does not need to accept or respond to the substance of criticism because 41.7% of the electorate voted for them.<br />
<br />
One could just about understand the logic of "I hear what you're saying but I don't care, we have a mandate and we will implement it anyway" when the SNP held a majority of the seats at Holyrood. It's a crap argument, but at least in a technical sense, they could do what they liked under the terms of our representative democracy. It is easy to forget that if you're playing the top-trumps "the people agree" card, more than 50% of those who voted did not support an SNP candidate. The people do not completely and unconditionally agree with them.<br />
<br />
But especially now that they have lost their majority, the SNP do not have a mandate to implement all of their proposals. They have a mandate to try, but a minority government has not just a functional, but a moral imperative to listen to criticism on the substance of what they are doing and why they are doing it, and not simply to waive away criticism with "we won you lost".<br />
<br />
The Scottish Parliament was supposed to herald a new politics. A break from the yah-booh childishness of Westminster. Yet our First Minister approaches her responsibility to account for her policies and decisions in Parliament with the mentality of a four-year-old child in the playground. For the sake of Scotland, it's time she grew up and dealt with criticisms of her government maturely instead of adopting an unwarranted indignance at the <i>audacity</i> of opposition parties to criticise decisions taken under her watch.Graeme Cowiehttp://www.blogger.com/profile/02704481523638679620noreply@blogger.com0tag:blogger.com,1999:blog-4824688363128407673.post-88383232513129755292016-05-31T16:35:00.006+01:002016-05-31T16:35:47.046+01:00Constitutional Futures and FudgesFor some months now the focus of my PhD thesis has looked at the secession movements in Quebec, Catalonia and Scotland. I'm especially interested in how each of the Canadian, Spanish and British constitutional orders have gone about responding to desires both for a referendum on secession or independence, and what role the courts have in clarifying the parameters of and enforcing duties owed between the relevant parties in delivering referendums and in responding to their results.<br />
<br />
I don't want to get too deep into the nuances of what I've been writing about, though that is for another time. I do think, however, it would be interesting and (I hope) useful to explain a couple of recent developments in the Quebec and Catalan disputes.<br />
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<b><span style="color: blue; font-size: large;">Canada and Quebec - Brief Context</span></b><br />
<b><br /></b>
Quebec's National Assembly drafted legislation for the holding of a referendum on secession from Canada in 1995, known as the <i>Sovereignty Bill</i>, which led to a razor-thin majority of voters supporting the province's continued place in Canada. There was a legal challenge made by a Canadian citizen to the competence of the provincial government to organise that referendum, in a case called <i>Bertrand v Attorney General</i> and the legislation was found to be unconstitutional, but the provincial judge declined to order the provincial government to cease and desist with holding the referendum pursuant to it. The federal government had been reluctant to get involved in that litigation, lest it be seen to be acting anti-democratically, a perception which could help the Quebecois secessionists' cause.<br />
<br />
Nevertheless, in the <i>aftermath</i> of that referendum, the federal government referred a number of hypothetical questions to the Canadian Supreme Court. In the <i>Reference Re Secession of Quebec</i>, the Canadian Supreme Court concluded that there was no constitutional route, otherwise than the amendment procedures provided in the Canadian Constitution itself, by which Quebec could secede from Canada. This ruled-out "unilateral declaration of independence", a right asserted by the Parti Quebecois and Bloc Quebecois, as being potentially legal. This position is adopted either implicitly or explicitly by most country's constitutions, whether or not codified.<br />
<br />
What was more controversial in that judgment was that it did say that, under the confluence of the core constitutional principles of Canada, including federalism, democracy, the rule of law and protection of minorities, there would be a "duty" on the part of the federal government to "enter negotiations" to "respond to" a clearly expressed desire to secede from Canada. In my current work, I have explored at length what the substance and effect of these duties would be, and how if at all they can be enforced (my conclusion is that, in reality, they can't). This section of the judgment was important, however, because it gave rise to two pieces of legislation in Canada: one federal; one provincial. Each represented what the federal government and the provincial government respectively believed would constitute a "clear majority" on a "clear question" expressing the desire to secede, and in each case spelled-out the implications of this.<br />
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<b><span style="color: blue; font-size: large;">The Legislation</span></b><br />
<br />
Both pieces of legislation have their faults. The Clarity Act, for example, takes a very narrow interpretation of the Supreme Court's ruling and in many respects, despite its name, does not in fact provide "clarity" as to the circumstances in which Quebec may secede. It does not provide a definition of a "clear majority" and leaves that open to interpretation: for the House of Commons to decide, in the aftermath of the actual holding of a referendum. Canadian politicians have also been less than completely clear or honest as to what aspects of the Clarity Act <i>affirm</i> what the Supreme Court said, and what parts go beyond it, merely drawing their preferred constitutional inferences from it.<br />
<br />
In the Macleans Election Debate, current Prime Minister Justin Trudeau claimed that the 9 Supreme Court justices said that a simple majority of support was not sufficient for Quebec to secede from Canada. The Supreme Court did not in fact state that even unanimity of the Quebecois was, in and of itself, enough to give rise to a right to secede, though the context in which they said the threshold imposed <i>may</i> be higher than a simple majority was in relation to this "duty to respond" and not with respect to a right to secede. They were merely saying that the Canadian government <i>could</i> constitutionally insist on a higher threshold; not that they <i>should</i>. Trudeau's position was therefore based on the Clarity Act itself, and was not <i>itself</i> a defence of it remaining in place as compared to an alternative piece of legislation, the like of which was proposed by Tom Mulcair's party the NDP.<br />
<br />
However, the "mirror" law passed by the Quebec National Assembly, known as <i>Bill 99</i>, was equally contentious. It attempted explicitly to define a clear majority as 50% plus 1 of those who voted in a future referendum. It also made some pretty broad-brush rhetorical claims about sovereignty that went explicitly at odds with what the Supreme Court had said.<br />
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<b><span style="color: blue; font-size: large;">Catalan Parallels</span></b><br />
<br />
<i>Bill 99</i> has a lot of similarity with both the Declaration of Sovereignty and subsequent resolutions of the Catalan Parliament when it comes to proclaiming sovereignty and the right to secede. The critical difference, so far, has been that the Canadian federal government had been happy just to leave Bill 99 on the statute book, so as not to inflame tensions in Quebec, especially given there had been no imminent threat of another referendum. Parti Quebecois had weakened at a provincial level and Bloc Quebecois had lost many of its seats in the Canadian House of Commons, first to NDP candidates and then to the resurgent Liberal Party.<br />
<br />
In Catalonia, the Spanish Government has been unrelenting in its determination to prevent the holding of a constitutional referendum. They believe that, as the Spanish Constitution states sovereignty rests in the Spanish nation, any plebiscite should take place throughout Spain and not in Catalonia alone on the question of secession. It is also arguably the case that for a referendum only of Catalans to be held, the Spanish Constitutional amendment procedure would itself require a referendum of the whole of Spain. On no fewer than five occasions has the Tribunal Constitucional declared aspects of the secession project to be illegal, and Artur Mas, former Catalan President, was impeached for his role in holding the "non-referendum popular consultation" in November 2014. The Catalan situation has reached something of an impasse, not helped by the inconclusive nature both of the most recent Catalan and Spanish elections.<br />
<br />
<b><span style="color: blue; font-size: large;">Bill 99</span></b><br />
<b><br /></b>
Despite having left <i>Bill 99</i> alone, probably hoping it would remain hypothetical and that its inconsistencies with the Clarity Act and the Constitution would never really matter, the federal government could not prevent private litigants from challenging it. In a similar vein to the way that Guy Bertrand had challenged the <i>Sovereignty Bill </i>back in 1995, an English language-rights party in Quebec, the Equality Party, had sought standing to challenge its provisions as unconstitutional. In 2007 the Quebec Court of Appeal granted permission for this challenge to take place, but the litigation had been incredibly slow.<br />
<br />
In 2013, then Canadian Prime Minister Stephen Harper asked his Attorney General to intervene in that case and make direct representations as to the legality of Bill 99. <a href="http://www.macleans.ca/politics/ottawa/exclusive-stephen-harpers-legal-challenge-to-quebec-secession/">There is an excellent piece by Paul Wells</a>, formerly of Macleans, which shows the nature of the challenge and explains some of the context behind it. Progress in this case has been slow, but having contacted Mark Walters, prominent Canadian public law academic who wrote a seminal piece some years ago on the Secession Reference, I understand that this case will be heard by the Quebec Superior Court some time in September this year. As an aside, Mark is currently a Professor at Queen's University in Kingston, but will shortly be taking up the <a href="https://www.mcgill.ca/law/channels/news/noted-legal-scholar-mark-walters-appointed-fr-scott-chair-public-and-constitutional-law-256980">FR Scott Chair at McGill</a>. His help on the Canadian aspects of my thesis has been hugely appreciated.<br />
<span style="color: blue; font-size: large;"><br /></span>
<b><span style="color: blue; font-size: large;">Why should we care?</span></b><br />
<br />
The implications of <i>Bill 99</i> potentially being struck down are significant, as it may agitate Quebecois secessionists, contrary to the wishes of the ardently pro-federalist Liberal government, which continued with the case initiated by Harper's Conservatives. I was prompted to draw attention to these ongoing developments in light of an article I saw in the Canadian media this afternoon. <i>Le Devoir</i>, a French language news outlet, <a href="http://www.ledevoir.com/politique/quebec/472192/referendum-un-nouveau-choix-pour-mettre-fin-au-statu-quo">has drawn attention to the calls of a number of Parti Quebecois representatives for the holding of another referendum</a> to try to "break the liberal monopoly and resolve the national question once and for all". The PQ deputies want Quebec to be given a choice between independence and a "new" federal settlement.<br />
<br />
The Canadian Supreme Court, Clarity Act and Bill 99 were not just concerned with what constituted a clear majority in favour of secession. They were also anxious that any referendum should ask a question "free from ambiguity". The inclusion of a "new federalism" settlement would very obviously fall foul of the Clarity Act and at least arguably would be unconstitutional in the terms described by the Supreme Court in the Secession Reference. The problem with these proposals, just as with the undefined "sovereignty association" suggestion in the 1995 Quebec referendum, is that they can both skew the result on the principal question and entail their own aspects of constitutional unfairness.<br />
<br />
Unless voters are completely clear about what the "developed" or "new" alternative to secession or the status quo is, and what major specific changes it makes to the existing settlement they are being asked to provide a mandate that is simultaneously all things to all people and nothing to anyone. There is also a really basic principle of democracy which is an obstacle in these situations. It's quite right or at least a strong case to argue that democracy can be invoked to decide whether a people want to be part of a club or association of nations or states that make decisions about how they govern themselves. It is quite another to say that a state, nation or country, having decided to be a member of such an association, can then unilaterally set their own terms of membership or impose a broader set of rules for governance that affect all of the other parts of that state. The comparisons to the European Union referendum the UK is currently engaged in is an important one here: trying to set the rules of the game at the same time as trying to play the game to find a winner, in the constitutional context, is messy.<br />
<br />
<b><span style="color: blue; font-size: large;">The Scottish Dimension</span></b><br />
<b><br /></b>
These developments produce an interesting parallel for Scottish observers, because in the first and second SNP administrations at Holyrood, minority then majority, the prospect of a "two-question" referendum was heavily mooted. I argued at the time that my own political party, the Scottish Liberal Democrats, should have worked with the SNP to develop a "third way". I wanted them very clearly to spell-out an alternative basket of powers and responsibilities Holyrood should have and then to use a political mandate from a referendum to try to encourage the rest of the UK to move towards a more overtly federal structure. Such an approach clearly does come with risks, and if done recklessly could be considered to be constitutionally improper.<br />
<br />
But if referendums are to become the principal method by which constitutional change is demanded (the new "gold standard" if you will) constitutional orders need to find ways simultaneously both to make secession disputes much more constitutionally clear-cut, and also to find ways of making internal constitutional reform more flexible and responsive to the <i>structural</i> challenges secessionist movements pose.<br />
<br />
Hopefully I'll have a working solution for you before my stipend runs out!Graeme Cowiehttp://www.blogger.com/profile/02704481523638679620noreply@blogger.com0tag:blogger.com,1999:blog-4824688363128407673.post-69017112509663074402016-05-26T15:59:00.000+01:002016-05-26T16:00:24.087+01:00Wildfire Myths, Student Finance and Social Media - Again!Social media has seen a complaint about the English student finance system go viral. Simon Crowther, a recent civil engineering graduate from Nottingham, <a href="http://www.theguardian.com/education/2016/may/25/simon-crowther-loan-grew-by-1800-a-year-says-government-misled-students">was <i>shocked</i> when, on receiving statements from the Student Loan Company, it transpired his student finance arrangement was not what he thought it was.</a><br />
<br />
He accused the Government of having "misled" him and other students when it came to the student loans system. He took-out a student loan in 2012 under the scheme introduced under the Coalition Government, which overhauled completely the way Universities and student maintenance was funded by government.<br />
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<b><span style="color: blue; font-size: large;">What changed in 2012</span></b><br />
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The key changes to the system included the raising of tuition fees to a maximum of £9kpa, a significant up-rating of the "repayment threshold" above which graduates have to begin to repay their loans, a substantial expansion of the maximum maintenance payment for which a student was eligible (especially those from disadvantaged backgrounds), the imposition of a 30-year rule wereby unpaid balances of a student loan are written-off after that period, and a move away from charging RPI inflation on the balance of a student loan, to something resembling more closely, but still well below, a commercial borrowing rate.<br />
<br />
All of this information was extensively made available and was able to be read about on both the Student Loan Company's website, the Department for Business Skills and Innovation website, was discussed at length in government information campaigns about the new system, was disclosed in all the paperwork made available to students applying for a student loan, and was spoken about almost non-stop by people like Martin Lewis on his MoneySavingExpert website and in television interviews. At the time many of us were frustrated that the mainstream media, including the BBC, and the opposition political parties, were focused obsessively only on the £9k fees, ignoring the other changes to the system that, in fact, cut the contributions made by low-earning graduates, both at the beginning of their careers and across their earning lifetime.<br />
<br />
<b><span style="color: blue; font-size: large;">What's the problem?</span></b><br />
<br />
The news coverage of Crowther's letter has perpetuated or accepted several myths and pieces of misinformation about the new scheme. <a href="http://metro.co.uk/2016/05/26/guy-says-graduates-have-been-cheated-by-government-after-underhand-student-loan-changes-5905594/">The letter makes the false claim that the government has "sold our loans to a private company which has caused the interest rate to skyrocket"</a>. This is wrong on two levels.<br />
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<b><span style="color: blue; font-size: large;">"THEY SOLD OUR LOANS!" No. No they didn't.</span></b><br />
<br />
Firstly, it is not true that the government has sold-off the right to receive loan repayments to a private company, at least not with respect to people like Simon. His loan is disbursed and administered by the Student Loans Company, which is wholly owned by government actors in the UK (85% by the Department for Business, Skills and Innovation, responsible for support of tertiary education in England and 5% each by the devolved administrations). The government has owned and run student finance through the SLC for almost three decades. This is nothing new. Nothing has changed here.<br />
<br />
It <i>is</i> true that <a href="http://www.bbc.co.uk/news/business-25084744">some legacy loans were sold-off by the Student Loans Company in 2013</a>. These related to what were "mortgage-style" borrowing arrangements that existed to meet tertiary education/living costs between the formation of the SLC in 1989-90 and 1998. One of the reasons for the decision to sell-off these loans is that they individually had very low outstanding balances, and those that didn't were becoming a lot more expensive to collect. This was a consequence of difficulties tracking-down graduates that had long since disappeared off the radar of the SLC. The effect of this is to divert time and other resources available to the SLC from focusing on ensuring that more recent loans are paid back promptly. Even though the "book value" of these loans was about £890 million, the actual amount the government would stand to realise from enforcing these debts themselves would likely have been much lower. This explains why a £160 million lump sum, paid by the successful bidder, is not the terrible or outrageous sham its critics say it is.<br />
<br />
It is <i>also</i> true that, since the Conservatives acquired a majority in May 2015, <a href="http://www.theguardian.com/education/2016/feb/16/is-selling-student-loans-private-sector-bad">there has been renewed consideration given to whether the loans incurred between 1998 and 2012 should be sold-off</a>. Vince Cable, as Secretary of State for Business Innovation and Skills, had been strongly opposed to this move, and blocked some efforts to take this idea further than exploratory stages. However, it should be noted that in the last budget this idea was put back on the back-burner and a recent OBR report suggested the plan was not advancing in the near future.<br />
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<b><span style="color: blue; font-size: large;">"THIS CAUSED INTEREST RATES TO SKYROCKET!" No. No it didn't.</span></b><br />
<b><br /></b>
The second problem with Crowther's open letter is that he has seriously misunderstood how interest works in student loans. It is not the case, even among the loans that the Student Loans Company has sold-off, that the new beneficiaries have the right to change the terms and conditions, like the rate of interest the lender can charge on the remaining balance of the principal debt. That <i>would</i> be a breach of contract and those taking out loans between 1990 and 1998 could contest it.<br />
<br />
But it's not even true that interest rates have rocketed on student loans under the new system, which remember hasn't been privatised. <a href="http://www.slc.co.uk/services/interest-rates.aspx">Part of the new scheme did, it is true, change the system that previously charged RPI inflation as the rate of interest on the accrued student loan balance</a>. It changed it to RPI + 3% when you are studying, then RPI inflation on graduation if you earn less than the repayment threshold (£21kpa) and then a variable rate of interest between RPI and RPI + 3% until a student earns over £41kpa. These terms were made completely clear at the time and were readily available on the Student Loans Company website.<br />
<br />
At the moment RPI inflation is about 0.9%, meaning the maximum rate of interest on the loan is 3.9%. This is actually <i>lower</i> than the rate charged on loans in the two years immediate preceding the introduction of the new system, because RPI inflation was itself higher than 3.9% in those years! It is also lower than most mortgage rates at the moment and much lower than most unsecured credit arrangements. It is straight-up fiction on his part when he claims that, when he took out the loan "the loan was at a very low interest, and at the time was around 0.5%."<br />
<br />
This is, admittedly, one of the most complicated aspects of the system. Crowther has clearly misunderstood how this works. The impression his letter gives is that the 3% above inflation rate is charged on all graduates, and that therefore, as he claims, he would need to be earning over £41kpa to begin to repay the principal debt over and above the interest.<br />
<b><span style="color: blue; font-size: large;"><br /></span></b>
<b><span style="color: blue; font-size: large;">How it actually works</span></b><br />
<br />
This is wrong for two reasons. Firstly, someone earning, say, £27kpa, the national median household wage, will only be paying interest of 1.8% on the principal. The purpose of having a sliding scale of interest levied on graduates is actually to prevent higher-earning graduates from getting an unfair advantage in saved interest with respect to saving money by paying-off their debt earlier than those earning less than them. It isn't a perfect way of doing it, but, assuming we are talking about those who do in fact pay off the whole principal of their student loan, this isn't unfair and only hits graduates earning almost double the middle income of someone living in the UK. Instead, these people would, just like anyone else, have to make a conscious overpayment if they wanted to extinguish the debt early, though why they'd want to given the generous terms of repayment I cannot for the life of me understand.<br />
<br />
The second reason it is wrong is because it completely ignores the fact that interest, for many graduates, will function as a <a href="http://www.moneysavingexpert.com/students/student-loans-repay">hypothetical accounting exercise and for most will only slightly increase the total amount for which they are liable</a>. The fact that student loans are written-off after 30 years means that, regardless of how much you've paid, you don't have to pay any more. If you are paying 9% of all your earnings over the threshold for 30 years, and the total of that contribution is less than the original loan amount you took out, the government is effectively writing off both the amount of the principal you didn't pay, and <i>every single penny</i> of the interest you accrued.<br />
<br />
Even if you would have just and no-more paid off the principal but for interest charged, then the amount of interest you are effectively charged is still only the difference between your total repayments and the original sum you took out; not the whole amount of interest nominally charged to your account.<br />
<br />
The only people actually affected by high rates of interest are those who are paying off their student loan with several years to spare.<br />
<br />
<b><span style="color: blue; font-size: large;">The frustrating thing</span></b><br />
<b><br /></b>
If Crowther is right about one thing, it's about just how much of a gap there is between how the student finance system actually works, and how many people think it works. The problem is that how he now thinks it works, having had this "veil of secrecy lifted", is in fact... not how it works. What we are seeing is a culmination of media dumbing down of the system, to such an extent that it seems clear that bright, generally mathematically literate, students, secondary school teachers and politicians alike do not understand the mechanics of it all, despite the information being readily available and easy to communicate to those taking out those loans.<br />
<br />
It is also clear that headline grabbing about "selling loans to the private sector" and "commercial rate interest" and the like are being used as dumbed-down signals to suggest that education is being marketised in some sort of free market frenzy. This makes the debate turn into one of ideological criticism of what the political extremes think the system is motivated by, rather than an evidence-based approach that properly considers how the scheme works compared to others.<br />
<br />
It also distracts from the ability genuinely to criticise changes made by the government that actually <i>are</i> unfair and retrospective. When the new scheme was introduced, it was understood that the £21kpa repayment threshold was supposed to rise in-line with inflation. This would mean that, as the cost of living went up, graduates were not left with less real disposable income in the years to come. Alas, in George Osborne's Autumn Statement, he left in the fine-print the fact that this was no longer going to be the case.<br />
<br />
The effect of this was a bit like <i>cutting</i> the personal allowance for taxpayers: more of a graduate's income would be subject to the 9% deduction from their pay-packet than if it had held with inflation. In terms of the impact on real disposable income, this most affects those whose debt repayments are least contingent on the size of their principal debt. Put more simply, it affects those earning between about £21k and £40k the most. Those earning much more than that don't suffer as much from a lower threshold as they end-up repaying their debt in full, and do it earlier than they otherwise would. The effect of that is... that they don't accrue as much interest on the debt as they otherwise would have so pay less for their University education!<br />
<br />
<a href="http://blog.moneysavingexpert.com/2015/12/14/ive-hired-lawyers-to-investigate-judicial-reviewing-govts-retrospective-student-loan-hike/">Martin Lewis has been very vocal about this change</a>, and it is one people <i>should</i> be angry about. That really is a case of going back on an implied undertaking or changing the rules of the game after the fact.<br />
<br />
<b><span style="color: blue; font-size: large;">Wider context</span></b><br />
<b><br /></b>
This debate also takes place, from the perspective of observers like me in Scotland, against the backdrop of a vastly oversimplified public debate about the full state-funding of tuition fees in Scotland. This is a policy that benefits those who frankly don't need the state to underwrite their education for them. The evidence shows that this policy has done nothing to widen access to Scottish Universities when it comes to admitting those from deprived backgrounds. While the gap is closing in fee-ridden England, it is stubborn and static in Scotland.<br />
<br />
We are also seeing Scottish Universities increasingly dependent on international and rUK students being admitted in order to meet their costs of operating and providing a diverse range of courses and subjects. This need to admit those bringing external sources of funding is holding back admissions levels for Scottish students, which disproportionately hits those from disadvantaged and minority backgrounds.<br />
<br />
The dangers of misinformation in public debate allow governments to advocate things that are symbolically powerful, but ultimately terrible policies. And in the age of social media, the myth can travel half-way across the world before the truth has so much as got its boots on. <b><i>We need to demand better.</i></b>Graeme Cowiehttp://www.blogger.com/profile/02704481523638679620noreply@blogger.com2tag:blogger.com,1999:blog-4824688363128407673.post-75030729586029050152016-05-25T20:32:00.001+01:002016-05-25T20:32:44.458+01:00An Addendum: Offensive Behaviour at Football Act<a href="http://www.predictableparadox.co.uk/2016/05/politicised-policing-in-scotland.html">Further to last night's post</a>, one of the three men referred to in the STV News report as having been charged under the Offensive Behaviour (etc.) Act <a href="http://www.bbc.co.uk/news/uk-scotland-glasgow-west-36380946">has been named as Greg Binnie</a>. He appeared before Glasgow Sheriff Court on a charge sheet which averred that he had <a href="http://www.edinburghnews.scotsman.com/news/crime/hibs-fan-pleads-guilty-to-running-at-rangers-goalkeeper-1-4137954">run onto the field of play, run towards Rangers goalkeeper Wes Foderingham and had gesticulated in an offensive manner</a>.<br />
<br />
There is absolutely no obvious reason from the perspective of a Procurator Fiscal's perspective why it would be preferable to prosecute that behaviour under the auspices of the Offensive Behaviour Act, rather than the alternatives. There is a strong arguable case that charging at a person falls within the definition of assault in Scotland. In <i><b>Atkinson v HM Advocate</b></i> in 1987, the principle was clearly established that physical contact <i>was not necessary</i> to substantiate an assault charge.<br />
<br />
In that instance simply jumping over a shop counter while wearing a ski-mask was enough to satisfy the definition of an assault. It is enough that the perpetrator made threatening gestures sufficient to produce alarm. Quite clearly in this case, that threshold would have been met, and would have been no more difficult to prove from an evidence perspective than the particulars of the OBFA. If anything, it is easier to prove!<br />
<br />
Equally, Mr Binnie could have been charged under s38 of the Criminal Justice and Licensing Act 2010, for behaving in a threatening or abusive manner, in such a way as the reasonable person would be likely to be induced to fear or alarm, and did so either intentionally or was reckless as to whether his conduct would have that effect. This would have been <i>no more difficult to prove</i> than an offence under the 2012 Act.<br />
<br />
He could even have been charged with breach of the peace, or incitement to breach of the peace, had either of those charges failed to produce the desired result.<br />
<br />
Which returns us to the very obvious question: <i>why</i> have the police chosen in this instance to charge him under the Offensive Behaviour at Football Act?<br />
<br />
This was a choice. This behaviour does not even relate to the more controversial provisions of the 2012 Act, and expressions of hatred towards protected groups. The Police has very clearly taken the view that it would be desirable to make an example of Binnie to conflate in the minds of passive observers the preservation of the OBFA and the need to ensure order at football matches and prevent a repeat of the scenes on Saturday.<br />
<br />
This is simply indefensible. Police Scotland are playing politics with their powers to influence the legislative process.<br />
<br />
Meanwhile, we have today heard from former Cabinet Secretary for Justice Kenny "wrong thing for the right reasons" MacAskill, who has stated in plain terms that he thinks winding-up opposition fans by waving your own club's flag in front of them should be capable of constituting a criminal offence. I was almost left lost for words at how breathtakingly stupid a notion that was.<br />
<br />
<a href="http://www.heraldscotland.com/opinion/14513765.Kenny_MacAskill__New_football_laws_are_not_perfect_but_they_were_needed/">In his piece in The Herald</a> he also characterises opposition to the 2012 Act as being the preserve of extreme leftists and right libertarians, even comparing those opponents to the NRA. <a href="https://twitter.com/alexmassie/status/735501445882089472">As Alex Massie deftly pointed out</a>, he should probably think about comparing these people, myself included, to people who would defend a First Amendment right to the hilt, rather than the Second.<br />
<br />This false equivalence is so ridiculous that it borders on the offensive. In fact, if Kenny MacAskill were to say this at a football match, it would arguably constitute "behaviour the reasonable person would be likely to consider offensive". And if, in the hypothetical, it would have been likely to cause a heated argument with other people had they heard him say it, it would have been "likely to incite public disorder". And the fact that he could then be prosecuted under that Act tells you all you need to know about the merits of it remaining on the statute book in its current form.Graeme Cowiehttp://www.blogger.com/profile/02704481523638679620noreply@blogger.com0tag:blogger.com,1999:blog-4824688363128407673.post-22119387204076074842016-05-25T01:34:00.000+01:002016-05-25T20:35:06.400+01:00Politicised Policing in ScotlandReports are emerging that, following the events that took place after the final whistle of Saturday's Scottish Cup final between Hibs and Rangers, Police Scotland have made a number of arrests and have charged several individuals with a variety of offences, relating to public order.<br />
<br />
I don't want to get into the he-said-she-said of which set of fans were to blame for the altercations that took place on the pitch, or indeed for the encroachment on the pitch itself. Clearly acts of violence and abuse, whether against fans, players, staff or officials, are completely inexcusable, are criminal, disgusting, and should be punished by the full extent of the law on identifying those culpable. Clearly the Police should use all proper avenues available to them to collect evidence and do their job.<br />
<br />
I also, just to be clear from the outset, think that the SFA specifically and the governing bodies in Scotland in general have to take far greater responsibility for punishing clubs whose fans commit acts of violence, public disorder, and who partake in sectarian chanting and singing during the football matches for which they are responsible.<br />
<br />
I am, however, deeply troubled by the news that three individuals have been charged under the Offensive Behaviour at Football and Threatening Communications (Scotland) Act. <a href="http://stv.tv/news/scotland/1355225-hampden-violence-underlines-need-for-football-alcohol-ban/">According to STV</a>:<br />
<br />
<blockquote class="tr_bq">
<i><span style="color: #660000;"><b>"Police Scotland said three men, aged 18, 19 and 23, were arrested for allegedly breaching the <a href="http://www.legislation.gov.uk/asp/2012/1/enacted">Offensive Behaviour at Football Scotland Act</a> due to a pitch invasion."</b></span></i></blockquote>
<b><span style="color: blue; font-size: large;"><br />
</span></b> <b><span style="color: blue; font-size: large;">Political Background</span></b><br />
<br />
Those who have been following Scottish politics in the weeks following the election will know that this piece of legislation is, to put it kindly, <a href="http://www.scotsman.com/sport/football/insight-if-the-act-goes-who-tackles-offensive-behaviour-1-4135594">very politically sensitive and controversial</a>. All of the opposition parties, from the left-wing Greens through to the Conservatives, opposed its introduction when the SNP proposed it and all of them want either to repeal it completely or to repeal most of it and substantially amend parts of the "Threatening Communications" section.<br />
<br />
It seems clear to me that the motivation for prosecuting people in relation to incursions onto the pitch, as described, is to manufacture or at least buttress a justification against the repeal of this legislation. It is not clear whether the charged three are Hibs or Rangers fans, or both. In either case, if indeed the prosecutions relate to conduct associated with the pitch invasion and not, independently, with sectarian singing, then other laws would have been completely sufficient to prosecute anyone for criminal activity. If it is for violence, assault is a crime. If it was for goading opposition fans or setting off flares, public order offences exist.<br />
<br />
If the prosecutions relate to the singing of sectarian songs, then it is misleading to suggest that these charges were in relation to the pitch invasion, or that Saturday's game, as opposed to any other, reiterates the need for the Act to stay.<br />
<br />
<span style="color: blue; font-size: large;"><b>Is this law necessary?</b></span><br />
<br />
Police Scotland has always maintained that the existing laws it had to deal with crowd disorder, and specifically the singing of sectarian songs, were inadequate in order successfully to identify and prosecute the perpetrators of wrongdoing. In 2012, when their immediate predecessor forces supported this Act being forced through, this was and indeed it still is, a hugely dubious claim. In Scotland it has always been a crime to assault someone. Any violence at a football match, the Police have, and have always had, the authority to arrest and charge people.<br />
<br />
There have always been a range of "public order" offences, the two best-known of which are "breach of the peace" and more recently <a href="http://www.legislation.gov.uk/asp/2010/13/section/38">section 38 of the Criminal Justice and Licensing (Scotland) Act 2010</a>. It is a crime to behave in such a way as is "severe enough enough to cause alarm to ordinary people and threaten serious disturbance to the community" or deliberately or recklessly to "behave in a threatening or abusive manner" that "would be likely to cause a reasonable person to suffer fear or alarm".<br />
<br />
It is also a crime to "incite" someone to commit an act of violence, or to threaten public order in the manner described above. Goading people into creating unrest, or deliberately behaving in ways that make it difficult for the Police to maintain public order, are themselves capable of falling under conduct which is criminal. When you commit any of these crimes, and there is a sectarian element to the people you are attacking or disturbing or inciting, it is already possible for a court to consider this to be an "aggravating factor" and this can increase the maximum sentence you receive or be led by a prosecutor against any attempt at plea in mitigation when a judge is exercising discretion. The harsher sentencing of sectarian aggravation was introduced way back under Jack McConnell's tenure as First Minister.<br />
<br />
<b><span style="color: blue; font-size: large;">"Breach of the peace is too broad"</span></b><br />
<br />
One of the objections to the suggestion that existing laws were sufficient to deal with crowd trouble was that there is an "indeterminacy" to the law of breach of the peace. Its definition is very broad, owing in part to its origins in the common law of Scotland. There are perfectly valid arguments that it should be replaced completely with much more exacting public order offences, but significant progress has already been made in that direction. The aforementioned s38 is used far more often to deal with instances of public disorder involving intimidation and mob-like behaviour.<br />
<br />
The definition of BOTP has also been construed more narrowly by the courts in more recent years in order to make sure that it is compatible especially with Articles 10 and 11 of the European Convention on Human Rights, for which the Human Rights Act provides domestic protection of our rights to freedom of expression and of assembly. This greater degree of specificity was something demanded in order to ensure that Scotland's criminal justice system was providing procedural fairness to people accused of criminal offences, to satisfy their Article 6 and 7 rights under the Convention in relation to having a fair hearing and not retrospectively to be criminalised.<br />
<br />
The Police attempted to argue that the Offensive Behaviour (etc.) Act powers were necessary in order that they would be less reliant on breach of the peace. There is nothing wrong in principle with this argument as long as the offences that replace an old law are themselves less intrusive. Yet if anything, the 2012 Act is a greater affront to the basic principles of the rule of law and protection of fundamental human rights than what is now the scope of the crime of breach of the peace, at the very least in relation to maintaining order at football matches.<br />
<br />
<b><span style="color: blue; font-size: large;">What does the Act change?</span></b><br />
<br />
The Act creates a new statutory offence, when at or travelling to or from a regulated football match, of "expressing hatred of, or stirring up hatred against" an individual or group of individuals based on their actual or perceived membership of:<br />
<br />
<ul>
<li>a religious group</li>
<li>a social or cultural group with a perceived religious affiliation; or</li>
<li>a group characterised by colour, race, nationality (including citizenship), ethnic or national origins, sexual orientation, transgender identity or disability.</li>
</ul>
<div>
<br />
It also makes it a crime to to engage in "threatening behaviour" or any behaviour "motivated by hatred" towards any of these groups or, most sweepingly of all, "any other behaviour" the reasonable person would "be likely to consider offensive".<br />
<br /></div>
<div>
There is an additional requirement that the conduct must be likely to cause public disorder, or would have been likely to cause public disorder but for the fact that "measures were in place to prevent public disorder" or that "persons likely to be incited to public disorder were not present or were not present in sufficient numbers."</div>
<div>
<br /></div>
<div>
<span style="color: blue; font-size: large;"><b>What impact does that have?</b></span></div>
<div>
<br /></div>
<div>
It is very difficult to conceive of any instances in Scottish football where something like fan violence, singing designed to incite violence or public disorder would not have been a criminal offence before, especially under s38 of the Criminal Justice (etc.) Act 2010, that would now be a criminal offence as a result of this Act. Yet paradoxically, this attempt to give specificity to criminal activity has, if anything, <i>broadened</i> the scope of public order offences into the realms of things which anyone who believes strongly in human rights or freedom of expression should be deeply concerned.</div>
<div>
<br /></div>
<div>
<b><span style="color: blue; font-size: large;">Criminalising people condemning the thing you're condemning</span></b></div>
<div>
<br /></div>
<div>
This Act is very explicit in that it is attacking not "behaviour" or "violence" or "disorder". It is criminalising "expression" of certain kinds of views, when uttered in a hateful way. The fact that they have chosen the word "expression" should immediately set alarm-bells ringing for those who value human rights. The state's objection, and rationale for <i>criminalising</i> people under this statute, is that the content of what they are saying is or could be offensive to other people. Even if your concern is that certain kinds of offensive speech, especially sectarian speech, is hurtful and harmful to those who hear it, this Act <i>does not</i> constrain its ire to offensive songs of a sectarian nature. Indeed, one can "express hatred of" a group based on their belonging or perceived affiliation to a religious group, precisely because one is criticising the import of religion into football.</div>
<div>
<br /></div>
<div>
One such example of this was when a <a href="http://www.dailyrecord.co.uk/news/scottish-news/student-convicted-under-controversial-anti-sectarian-3037633#lrIW2TLMmfW8LBVe.97">teenage Partick Thistle fan was convicted of singing an anti-sectarian song</a> at a match at Firhill against Celtic. The song in question contains the lyrics:</div>
<div>
<br /></div>
<blockquote class="tr_bq">
<b><i><span style="color: #660000;">"Hello, Hello, How do you do,<br />
We hate the boys in Royal Blue<br />
We hate the boys in Emerald Green<br />
So **** your Pope and **** your Queen"</span></i></b></blockquote>
<div>
<br /></div>
<div>
Anyone who understands the context of that song knows that it is sung as a critique of the import of religion and constitutional politics by Rangers and Celtic fans into Scottish football. Yet the chant, quite literally, "expresses hatred" towards individuals or a group of individuals based on a social group's perceived affiliation to a religious organisation. And the reasonable person could say that, but for the presence of Police and stewarding and segregation, singing a song like that could incite public disorder.</div>
<div>
<br /></div>
<div>
Indeed, at the next game between those two sides at Firhill, when Celtic won the game to clinch the league, the clandestine subversion of segregation in the Jackie Husband Stand led to some pretty unpleasant scenes in the home end. I saw normally fairly placid middle-aged men on the verge of an "actual physical fight" when the green and white scarves emerged from under coats and goading and gloating began. It is not hard to see how, if the above song was sung in that environment, it could have escalated the situation.</div>
<div>
<br /></div>
<div>
Yet it was obviously absurd that this was what the Act was criminalising. The Sheriff in that case, having found the solitary arrested perpetrator for singing this song out of a group of easily several hundred, refused to punish him and granted an absolute discharge and so prevented him from getting a criminal record. This isn't, it should be stressed, the same as finding him not guilty. What this guy did was, according to the law of the land, a crime.</div>
<div>
<b><span style="color: blue; font-size: large;"><br />
</span></b></div>
<div>
<b><span style="color: blue; font-size: large;">This is not evidence of a working scheme</span></b></div>
<div>
<br /></div>
<div>
We should not have to rely on the goodwill or discretion of judges, prosecutors or the police to prevent sweeping state powers from being abused, especially where there is evidence that they are being used overzealously. These abortive prosecutions still have a significant impact on those who are dragged through the courts for several months fearing a criminal record.</div>
<div>
<br /></div>
<div>
Police Scotland also has form for using its powers to the point of abusive excess. It previously used stop and search powers so sweepingly that they went beyond the per capita search rates of the London Metropolitan Police and the New York Police Department, including searching children below the age of criminal responsibility. It was only after politicians, especially within the Liberal Democrats, had the courage and bloody-mindedness to keep raising this issue in public debate that the Scottish Parliament was able to exert pressure on the police to review its procedures. <a href="http://www.heraldscotland.com/news/14508764.Police_Scotand_stop_and_search_levels_fall_by_93__in_wake_of_controversies/">A 93% reduction in stop and searches since tells its own story</a>. A law is a bad law if it criminalises conduct that its advocates do not believe should be criminal, or which gives the police broad powers without a clear and carefully defined purpose.</div>
<div>
<br /></div>
<div>
<span style="color: blue; font-size: large;"><b>This is principally objectionable</b></span></div>
<div>
<br /></div>
<div>
The refrain of Evelyn Beatrice Hall that "I disapprove of what you say, but I will defend to the death your right to say it" is also important here. What the football authorities decide should be the terms and conditions of entry to their grounds and how people should have to conduct themselves there is ultimately their decision. But the right to freedom of expression that protects hateful and discriminatory and horrible opinions and beliefs that we utterly condemn in a progressive society is precisely the same right that lets us challenge the social attitudes that give rise to those beliefs and how people express them in the first place. </div>
<div>
<br /></div>
<div>
An aspect to this crime is that you can be prosecuted under it even if, on the facts, your conduct was not actually likely to cause disorder. If the Police had implemented very effective segregation at a football match, or not enough people sung the song that the opposition fans could actually hear the damned thing, you can still be prosecuted. This reiterates that it is not the behaviour in its social context and the effect it has on other people that is being criminalised, but the very words uttered or gestures made that "express hatred". To mix two metaphors, if a "Teddy Bear" shits in the woods, and no one's there to hear it, does the Billy Boy make a sound?</div>
<div>
<br /></div>
<div>
Part of the reason this Act targets football fans is that there would be an absolute uproar if its provisions were to apply to the general public at large. Incursions into fundamental rights and freedoms are much more popular and readily accepted when most of the population think they won't conceivably apply to them, and that the kind of people who will get caught on some level are "trouble" and that they "deserve it". See also why the majority of people support capital punishment and depriving prisoners the right to vote.</div>
<div>
<br /></div>
<div>
<b><span style="color: blue; font-size: large;">Other problems</span></b></div>
<div>
<br /></div>
<div>
The Act does not stop there in terms of what we should principally object to. Even if its advocates are right and this expression is something we should criminalise, why does it only apply to football fans? The mere fact that football fans are more likely to engage in this conduct than the general population does not justify a law that specifically and only targets them. If the conduct is wrong, it should be wrong regardless of whether it takes place on the terraces or anywhere else.</div>
<div>
<br /></div>
<div>
This creates some absurd consequences. Imagine that I am on the Subway to Kelvinbridge, en-route to Firhill. I am "on a journey to" a regulated football match, so the Act applies to me. Imagine I meet a friend, who is a Thistle fan but is instead going into town. If we were to sing "Hello Hello" together, but the carriage is empty, I am committing a criminal offence and he is not. We may be arseholes for singing in an enclosed public place, but that isn't a justification for criminalising me but not him.</div>
<div>
<br /></div>
<div>
In a similar vein, it purports to criminalise Scottish resident football fans for actions undertaken when they attend football matches not even taking place in this country. If by some freak of magic Partick Thistle qualify for Europe and we draw Honved in the UEFA Cup, I might take a bus down to London and then fly out to Budapest for the away leg. I may be joined by a "Thistle Nomad" who lives in England, and we might board the same flight to Hungary. If we sing "Hello Hello" together on the plane, or at the football game, I have committed a criminal offence but he has not. And not a criminal offence pertinent to Hungary, but pertinent to Scotland! The powers arrogated by this Act are simultaneously extraordinary yet also inconsistent.</div>
<div>
<br /></div>
<div>
<span style="color: blue; font-size: large;"><b>Broader Problem</b></span></div>
<div>
<br /></div>
<div>
What this Act does, by saying that the relevant expressions of hatred are uniquely criminal in a football setting, is create an image of "victimhood" among the football fans that actually are engaging in unpleasant sectarian singing. This victimhood complex is manifest when you look at the statements from Rangers in the last few days, where they convey the impression that entering the field of play in response to another team's fans doing so and provoking you is somehow a completely "natural" or "understandable" or "reasonable" response. That victimhood actually makes the potential for antagonism and retaliation and violence at football games <i>worse</i>, not better.</div>
<div>
<br /></div>
<div>
It lets them say that they are being treated differently from other people. That creates a horrendous distraction from efforts in education, and for that matter among the football governing bodies, to eradicate sectarianism in Scottish football. For too long those bodies have sought to oursource this problem as being "a matter for the police" when if the expression of these views at football matches is a problem (and I believe it is), it is one for which they and not the criminal law are responsible in terms of responding.</div>
<div>
<br />
There is no evidence that this Act has reduced the preponderance of sectarian singing at football matches. There is no evidence that it has cut violent crime or domestic abuse, whether or not related to sectarianism. There is no evidence that it has reduced problems with public order. There is no evidence that it has made it easier for Police to arrest actual troublemakers with cause. If anything the opposite is true as we have seen the Act used as often with individual supporters of "provincial" clubs as we have with the two clubs, large groups of whose supporters are responsible for the vast majority of sectarian singing.</div>
<div>
<span style="color: blue; font-size: large;"><br />
</span></div>
<div>
<span style="color: blue; font-size: large;"><b>Ulterior Motives</b></span></div>
<div>
<br /></div>
<div>
Perhaps most worryingly, though, the fact that the Scottish Cup Final is now being <i>used</i>, by the police, by SNP politicians like John Mason, and by the Scottish Government as evidenced by Michael Matheson's statement. Specifically, it is being used to further political objectives before we have even established what wrongdoing occurred on Saturday and who the perpetrators were.</div>
<div>
<b><span style="color: blue; font-size: large;"><br />
</span></b></div>
<div>
<b><span style="color: blue; font-size: large;">Politicised Police</span></b></div>
<div>
<br /></div>
<div>
The Police have very clearly chosen to prosecute under the Act rather than other criminal offences in order to make a point, and to try to suggest that it is a necessary and effective part of their armoury, despite the total absence of evidence to support this. It renews broader concerns about how much influence the SNP government is exerting over the single police force after its centralisation project, which make the police, including its most senior appointments, directly accountable to the Cabinet Secretary for Justice.</div>
<div>
<br /></div>
<div>
It may well be that Police Scotland has done this off their own backs, but the combined effect of the close relationship between them and the Scottish Government and their "at one" positions on the events at Hampden, does little for public trust that they are executing their functions apolitically. At a time when the future of the 2012 Act is under very public scrutiny, it surely behoves Police Scotland only to use the offence under the Act as an absolute last resort when other crimes of equal severity and sufficient specificity are not viable alternatives with which to charge people. To behave in this way totally undermines the principle of policing by consent and the separation of power we consciously impose between those who make the laws and those who enforce them.</div>
<div>
<b><span style="color: blue; font-size: large;"><br />
</span></b></div>
<div>
<b><span style="color: blue; font-size: large;">Jumping to Conclusions on Alcohol</span></b></div>
<div>
<br /></div>
<div>
The SNP is also using this Cup Final as evidence why alcohol should not be allowed to be consumed at football grounds. This is despite the fact that there is no evidence to support the view that drunkenness was what caused the disorder and violence at Hampden and it was in any case a match at which no alcohol was available for consumption. In a classic turn, they have made generalisations about football matches and fans on the basis of the most intense and raucous of them, in order to discredit, without evidence or causal link, the arguments of their opponents. Advocates for a relaxation of the ban have called for a more flexible approach that properly involves the police in assessing the risk posed in each individual case, not the mass availability of alcohol at every match.</div>
<div>
<br /></div>
<div>
As we have seen with the <a href="http://www.bbc.co.uk/sport/football/36372446">upcoming European Championships match between England and Wales</a>, alcohol restrictions can be imposed on "high profile" or high risk games. In Scotland, junior football does not prohibit the drinking in social clubs at grounds during matches, yet they often have higher attendances than third and fourth tier matches in the SPFL where alcohol is banned! England, Germany and Spain all have alcohol available for sale at top-flight games, the vast majority of which pass completely without incident. There are probably more drink-related arrests at T in the Park each year than there are outside the top-flight of Scottish football in an entire season.</div>
<div>
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The Scottish Government and Police Scotland clearly aren't interested in having a grown-up discussion about issues affecting Scottish football relating to violence, public order, safety and sectarianism. They want to maintain their existing power to control football fans at all costs, but in doing so totally undermine the calls within the game for the SFA and SPFL to get a grip and start forcing clubs with badly behaved fans to play games behind closed doors. Instead they want to treat football fans like children or animals, and their authoritarian instincts shine through at the first opportunity.</div>
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<span style="color: #660000;"><br />
</span></div>
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<i><b><span style="color: #660000;">And if you treat people like animals, it isn't a surprise when they act like them.</span></b></i></div>
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<b><a href="http://www.predictableparadox.co.uk/2016/05/an-addendum-offensive-behaviour-at.html">Update 20:34 25.05.2016 - An addendum to this post in light of new information</a></b>Graeme Cowiehttp://www.blogger.com/profile/02704481523638679620noreply@blogger.com0tag:blogger.com,1999:blog-4824688363128407673.post-78973011629956553042016-05-06T09:49:00.000+01:002016-05-06T09:56:58.851+01:00A Counterintuitive Liberal OpportunityA superficial look at the Scottish Parliamentary election results would suggest that Scotland has divided along Nationalist and Unionist lines. Two unexpected and impressive victories by Willie Rennie in North East Fife and Alex Cole-Hamilton in Edinburgh Western have made us harder to dislodge and re-established a core for our party. It is tempting not just to attribute that to the marshalling of a tactical Unionist vote but to act accordingly.<br />
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This should not be a reason now to be cautious: to justify Unionist opposition for opposition's sake. The fact that the SNP have failed to win a majority offers us an unexpected but critical opportunity to maintain our relevance in Scottish politics. It makes the fact that the Greens have overtaken us in seats less of a problem than it otherwise would have been.<br />
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All of the talk will be about what deals the SNP can do with the Scottish Greens. But the split of the independence vote in this election represents a fundamental fault-line that is not so easily bridged as people might think. Especially on taxation and macroeconomic policy there is much that separates the SNP and the Greens. It doesn't seem plausible to me that John Swinney will swallow much of substance of the Patrick Harvie tax-plan, or his uncompromising approach to the energy sector.<br />
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It is also true that this minority SNP government will not be like the 2007 one. No longer can they rely on the Tories to waive through their budgets on the promise of a few more bobbies on the beat, like they could under Annabelle Goldie. The Tories positioning themselves as the main opposition, and the SNP having vilified cooperation with the Tories during the independence referendum, has burned those bridges.<br />
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Against that backdrop, the Liberal group of 5 MSPs, who maintain their status as an official "group" at Holyrood, can make a constructive, liberal and centrist, contribution to this Parliament. We can be the pragmatic reformists: the "better Union" power-brokers that the SNP can, and ultimately must, do business with.<br />
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This doesn't just make sense from a policy perspective. Sure, it can keep the SNP from their worst authoritarian excesses and stop self-defeating economic policies of the Malthusian left from holding Scotland back. But it makes sense from an electoral perspective too. It's time, much as it pains some Liberals, to try to heal the rift with liberal Nationalists after our immensely damaging sulk post 2007. If we do this, we can secure significant concessions on our core priorities, especially mental health and education.<br />
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This minority government also buys us time that we frankly did not expect to have to shore-up our response to the constitutional question. Holyrood's Committees, including its Devolution Committee, are no longer subject to majority SNP control. We can now work internally, with less timidity, on the detail of what is actually needed to deliver a federal Britain. We can afford to be bolder with our ideas now that a second independence referendum is unlikely to feature in this Holyrood parliamentary term. This will be the long-term route to the Liberal Democrats not just to dig-in like "cockroaches" as Tim Farron once put it, but actively to rebuild our Parliamentary presence into double-digits.<br />
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The Labour Party now faces an existential crisis in Scotland. If we seize the opportunity to work with the Scottish Government, we can make ourselves genuinely indispensable to the national debate, on both bread-and-butter and constitutional issues, and fill the gap they have vacated. If, on the other hand, we retreat into our bunker, the victories of Willie and Alex will have been phyrric.Graeme Cowiehttp://www.blogger.com/profile/02704481523638679620noreply@blogger.com0tag:blogger.com,1999:blog-4824688363128407673.post-17692589978979800442016-03-29T00:19:00.000+01:002016-03-29T00:34:01.871+01:00McPravda - Get in the SeaSomeone at The National has obviously developed a bit of an obsession with the Scottish Liberal Democrats. It's really kind of cute. For a paper that makes The Beano look like the pinnacle of hard-hitting journalistic integrity, whose main party-pieces are a Twitter account with a beret, a talking dog and a guy that writes in a register that has more in common with Klingon than Scots, it really is quite an achievement for them to have hit a new low.<br />
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The latest front-cover is attempting to smear the Lib Dems over a series of grants made by the Joseph Rowntree Reform Trust to Lib Dem politicians. Here's the front-page:<br />
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<table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody>
<tr><td style="text-align: center;"><a href="https://pbs.twimg.com/media/CeqeF4IW8AArL98.jpg:large" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" height="400" src="https://pbs.twimg.com/media/CeqeF4IW8AArL98.jpg:large" width="325" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">SCANDAL</td></tr>
</tbody></table><br />
Now let's clear-up a few things. The Rowntree Reform Trust is not a "Quaker trust". It is a political trust that is very clear about its purposes and completely transparent about the grants it makes to individuals and organisations. On their website home-page, they state:<br />
<blockquote><b><span style="color: #660000;">"We fund political campaigns in the UK to promote democratic reform, civil liberties and social justice."</span></b></blockquote><br />
<span style="color: blue; font-size: large;"><b>They are transparent</b></span><br />
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They also publish information about every single grant that they make, and there is an open applications process. There are <a href="http://www.jrrt.org.uk/grants-awarded">thirty-eight pages on their website</a> clearly listing grants awarded, the purposes for which they were awarded, and a categorisation to reflect the different range of trust purposes. Grants range from democratic engagements groups like OpenDemocracy and Operation Black Vote, to issue campaigns like CND and the Rainbow Project in Northern Ireland. They also have a dedicated category of donation called "Raw Politics", which is about as transparent as you could really hope for when it comes to political donations.<br />
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<b style="color: blue; font-size: large;">This isn't a coup</b><br />
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The idea that the Rowntree Reform Trust has been taken over by the Lib Dems for political purposes is faintly absurd. The organisation has been making substantial contributions to Lib Dem parliamentarians, local parties, devolved parties and the UK federal party for well over a decade. Before the 2005 General Election, for example, they made £500,000 of contributions to the Lib Dems to help with fighting that election.<br />
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The idea that it is some sort of secret that the Rowntree Reform Trust helps the Lib Dems is equally absurd. Even a cursory glance at its donation history would show that it has close ties both to the Liberal Democrats and to the Alliance Party of Northern Ireland and is a substantial contributor. No doubt Electoral Commission donor registration would have flagged this up to any half-observant journalist. It would appear, especially in their efforts to smear Tim Farron and Willie Rennie specifically, that The National didn't even bother to look beyond the first few pages of donations. In both cases, donations were given clear reasons for being made, specifically on policy development in housing and social welfare. It has also donated to politicians like Ed Davey, Susan Kramer, Julian Huppert and Kirsty Williams.<br />
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<b style="color: blue; font-size: large;">They don't even just donate to the Lib Dems</b><br />
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It's not even as though the Rowntree Trust donates exclusively to the Lib Dems and Alliance Party. It is a fairly regular contributor to the Labour-aligned Compass and Fabian Society and has also donated to Bright Blue (a Conservative moderate reform group), the Jersey Democratic Alliance, and even the Jimmy Reid Foundation, which had been closely connected to pro-independence circles at the time. In the past, it has also donated to a Federation of Green Parties in London. It makes lots of donations to democratic and liberty-promoting pressure groups like Liberty, No2ID and others, for sure, but it has never hidden its intentions to use its resources and profits (on which it pays full UK tax) for political purposes.<br />
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<b style="color: blue; font-size: large;">This is better party financing than the alternative</b><br />
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The important thing to emphasise here is that the Rowntree Reform Trust is not a charity. It is a profit-making trust. There is a separate body from which donations that can be deemed charitable are processed. None of the party-political donations have been processed through the charitable trust.<br />
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Anyone naive enough to think that an organisation connected to the Rowntrees isn't going to, in some way, promote Liberal and liberal causes with its political campaign resources must have been living under a rock for most of British democratic history. It's even less controversial than Labour-affiliated unions allowing their members to make voluntary contributions to their political funds.<br />
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The only reason this story has been brought up is because of a recent grant made by the society to Alistair Carmichael to help him meet his costs in the successful defence against the election petition to have him removed from Parliament over Frenchgate. The Trust has been very clear about the reasons behind this donation, and <a href="http://www.jrrt.org.uk/sites/jrrt.org.uk/files/user-uploads/alistair_carmichael_-_website_statement.pdf">released a statement a clear 4 days ago giving their reasons for it</a>.<br />
<blockquote><b><span style="color: #660000;">"Thanks to the perversities of the UK’s electoral system the 50% of Scottish voters who supported unionist parties at the General Election are represented by only three MPs. Had nationalists succeeded in their case against Alistair Carmichael, they would have worsened further the current misrepresentation of Scottish voters’ views in Parliament. Worse still, the effect on case law would have been to subject many more legitimately elected Members of Parliament to the risk of personal bankruptcy in defending themselves in court against vexatious and highly political claims."</span></b></blockquote>Now you can disagree about the merits of this particular grant, but it is one the Trust is entirely entitled to make. It is no different from any other private organisation that decides it wants to provide financial support to political campaigns or representatives. It is surely, if anything, preferable that politicians be receiving money from organisations with transparent political motives than organisations with more covert, corporate, quid-pro-quo motives. It's also worth pointing out that £35k of the £50k was actually advanced to Carmichael in January, before he would have known either whether his costs were recoverable or what their total amount would be.<br />
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One might draw parallels with the large donations made by people like Brian Souter, owner of Stagecoach, to the SNP and Yes Scotland campaigns, for example, or even the historical influence of Big Tobacco, or Goldman Sachs in US Presidential campaigns. This Trust is, at the end of the day, just an organisation set-up to manage some of the wealth of a deceased prominent liberal campaigner, by investing that money and making distributions to causes connected with liberal values.<br />
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<b style="color: blue; font-size: large;">A wasted opportunity</b><br />
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If it were any newspaper other than The National, I'd suggest that their obsession with the Lib Dems indicated that they were in possession of some information from SNP insiders that the Lib Dems were actually posing a threat in constituencies like Edinburgh Western and that this was an effort to knock that campaign off-course. Because it's The National though, I doubt the journalistic or political nous for that even to be the case. It's just a sad little obsession to make-up for the fact that it's not a real newspaper and it hasn't anything actually insightful to write. It's a chronic shame that McPravda has given up any serious pretence of being an objective or balanced or fair contributor to Scottish public debate.<br />
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As it stands, they're a bunch of hacks that give even Scottish journalism a bad name. All that's left, to be honest, is to tell them to get in the fucking sea.Graeme Cowiehttp://www.blogger.com/profile/02704481523638679620noreply@blogger.com0tag:blogger.com,1999:blog-4824688363128407673.post-40477224776826930052016-03-26T14:21:00.001+00:002016-03-26T15:42:00.916+00:00The Myth of the Squeezed MiddleOne of the biggest frustrations of Liberal Democrats in the 2015 General Election was the manner in which the Conservative Party tried to claim credit for tax cuts they opposed in 2010. The Lib Dems had a policy of increasing the "personal allowance", which is the amount an individual is allowed to earn free from income tax before they have to start to pay the basic rate. The Coalition delivered on this promise, raising the personal allowance from £6475 in 2010-11 to £10600 for the tax year 2015-16.<br />
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This wasn't a cheap policy. It cut-into the tax-base of the UK by taking some people out of tax completely and drastically reducing the tax liability of everyone on low and middle incomes. It amounted, for almost everyone in full-time employment, to an £825 cut in their annual tax-bill. If the threshold had only kept-up with RPI inflation, it would only have risen to £7490 over this period, which would have only cut basic rate payers' taxes by £203. To have a tax cut of over £600 in real terms for the overwhelming majority of workers in the UK clearly wasn't nothing.<br />
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<b><span style="color: blue; font-size: large;">Paying for It</span></b><br />
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There were two steps the Coalition government took in relation to income tax that were intended to defray the cost of this policy. The first was to introduce a "taper" on the personal allowance. When you started to earn over £100kpa, you would lose £1 of your personal allowance for every £2 you earned above that. This created, it should be acknowledged, an anomaly whereby the marginal rate of tax paid by someone earning between £100k and £120k was actually higher than the rate paid by those earning more than that.<br />
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The other step taken was to cut the threshold above which higher rate tax would become payable. Higher rate tax is levied at 40p in the pound, and was paid on income above £43875 in 2010. As of the tax year 2015-16, this threshold kicks-in for income over £42385. This has the effect of increasing the amount of income taxable at 40p instead of 20p by £1490. This, in and of itself, increases total tax liability by up to £298.<br />
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<b><span style="color: blue; font-size: large;">Effect on Tax Paid</span></b><br />
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The combined effect of the changes to the personal allowance and the size of the basic-rate band is that basic rate-payers got a cash-terms £825 tax cut, whereas higher rate payers got a tax cut of £527. If both the zero-rate (personal allowance) and the basic-rate bands had expanded in-line with inflation, higher-rate payers would have expected a £1375 or so tax cut. If inflation is your standard, therefore, it's absolutely true to say that higher-rate and upper-basic-rate income tax-payers saw "fiscal drag" increase their tax liabilty in real terms (2015 prices), to pay for a substantial tax cut for everyone else.<br />
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A £622 tax cut represents about 4.6% of a full-time minimum-wage-earner's annual income. For someone on £20k, it represents 3.1%. If you earn the median household income, about £27k, that's a 2.3% cut in your taxes as a proportion of your gross income. These are very real gains which, although clearly not the whole story when you take-into account tax credits and benefits, have in themselves significantly helped most working people.<br />
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By contrast, higher-rate payers saw a maximum real-terms (2015) increase in their taxes of £803. This would apply to those earning over £50k or so, which is where the higher-rate threshold would have been had both the personal allowance and basic-rate-band been indexed to RPI inflation. That means a hike of 1.8% of their gross income. In effect, therefore, their tax hike, at its worst, is still much smaller than the tax cut everyone else got.<br />
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<b><span style="color: blue; font-size: large;">Is this fair?</span></b><br />
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Let's be clear who this higher-rate tax band affects: <a href="http://www.theguardian.com/money/2014/mar/25/uk-incomes-how-salary-compare">HMRC estimates show</a> that if you are a single person and you earn over £40kpa, you are among the top 10% of household earners in the UK. For an adult with a working partner and two children, this would typically place you in the top 20% of household earners. Put more bluntly, the lowest earning four in five of adults do not and most probably will never, pay this tax.<br />
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If you put it in those terms, I suspect most people would be content and say that as a tax-priority, the lowest 4/5 of earners being given tax cuts off the backs of very small tax rises for the top 1/5 was fair.<br />
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The counter-argument, and an argument that has reared its head now that the Scottish Parliament is going to get the power to set thresholds and rates of income tax, is that over-time lots of people who would never have paid higher-rate tax in the past have now been pulled-into this category and that this is unfair. We hear the classic invocation of nurses, firemen and teachers in support of this. An audience-member in the BBC's Scottish Leaders' Debate on Friday said the very same. This rate was meant for <i>rich people</i> not for good and honest public-sector workers.<br />
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Never mind, of course, that <a href="https://www.rcn.org.uk/employment-and-pay/nhs-pay-scales-2015-16">a nurse has to reach band 8 of 9 on the standard pay-scale even to get close to the level of income necessary for higher-rate tax</a>. Almost all of the positions at that pay-grade are managerial and consultant-level positions. Your conventional understanding of even a senior nurse on a hospital ward is going to be no higher than band 7, who earns less than the higher-rate threshold. In teaching the position is similar: in the public sector schools only senior management and principal teachers earn more than the threshold, and of those who do, most earn on or around the threshold. The extra tax they pay is barely if even off-set by the personal allowance tax cut they have already taken to the bank. Presenting the threshold cut as an attack on typical public sector workers is, frankly, deceitful diversion or brutal ignorance.<br />
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<b><span style="color: blue; font-size: large;">"Things were better in my day"</span></b><br />
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It does not even follow that levels of taxation have especially risen for middle-earners in the last 25 years or so. Let's take 1990-91, the tax year immediately before I was born. <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/418665/Table-a1.pdf">The personal allowance was £3005 (£6161 in 2015 value) and the higher-rate kicked-in at £23705 (£48601 in today's money)</a>. You'll notice this isn't too far away from the thresholds in 2010 once you've taken inflation into 2015 money into-account, and if anything both the personal allowance ends and the higher-rate threshold kicks-in at a slightly lower level of income than both at inflation adjusted 2010 rates. But all of this ignores the fact that <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/418669/Table-a2.pdf">the basic-rate of income tax was 25p</a>, not 20p, in 1990-91.<br />
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That 5p extra means every higher-rate-payer was paying more than £2100 more in basic income tax than they otherwise would, an amount which is not-offset by a higher threshold for higher-rate tax, which cuts their taxes by just over £800, assuming a basic rate of 25p applied. If we applied the 1990-91 tax code in terms of rates and bands and adjusted for inflation, these high-flying nurses and teachers would be over £100 a month worse off!<br />
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<span style="color: blue; font-size: large;"><b>Current Proposals</b></span><br />
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The Conservative Government at Westminster proposes to raise the 40p threshold ahead of inflation, to £45k and eventually £50k, in order to try to "remedy" this "unfairness", whereas the SNP Government have (in my view, correctly) chosen only to raise the threshold to account for inflation in Scotland. The reality of the Conservative policy especially is that in cash-terms the top 10% of earners will essentially get a bigger tax-cut than the lowest paid 90% in this country.<br />
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Even the SNP policy is imperfect, however. If Scotland is to be serious about ending austerity, we should not just be looking at the thresholds at which taxation applies. We should also be looking at the rates at which taxation applies. There are perfectly reasonable areas for disagreement about the Scottish Rate of Income Tax (SRIT), which the SNP refused to use to raise revenue on the grounds that it would also be levied on basic-rate payers. <a href="http://www.predictableparadox.co.uk/2015/12/we-need-to-talk-about-tax.html">I covered the flaws of their reasoning on this in a previous post a while back</a>. But when the Scotland Act 2016 powers come into force, there is the choice to raise revenue by raising the higher-rate of tax without raising the basic-rate, or not raising it by as much.<br />
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If the SNP were to slightly <i>lower</i> the higher-rate threshold (rather than to increase it with inflation) and to introduce a higher-rate of between 41 and 42p, they could have asked the top 10% of Scots to pay what they would have been asked to pay with an increase in the SRIT, without asking for a penny more from the rest of Scotland. It would not have raised as much, but it would have made something of a dent in the austerity cuts they claim not to like that are coming from Westminster. When the Scotland Act 2016 comes into full effect, they could have even used this slight increase in tax on the wealthiest Scots to protect and even supplement the welfare policies they think the Conservatives are bearing-down too hard upon.<br />
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<span style="color: blue; font-size: large;"><b>The Live Election Debate on Tax</b></span><br />
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This would have been a more meaningful debate to have than the false one that's taking place between the SNP and Scottish Labour about the 50p rate in the Holyrood election campaign. Amusing as it is to call Sturgeon a Tartan Tory for parroting George Osborne's lines on a 50p rate, she's probably right: Scots earning significantly over £150kpa probably do have significant incentives to arrange their affairs so as not to be designated a Scottish taxpayer. As a side-point, it's also difficult to see how an independent Scotland's tax code would vary so much that they could painlessly prevent that reality. Those earning less than that, however, probably don't. You're more likely to raise more revenue from the top 10% of earners through adaptations to the higher rate than you are through the additional rate of income tax.<br />
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If the SNP cannot explain why they won't cut the threshold and levy a 41-42p higher-rate, it rather calls the bluff of the public reasons they gave for not supporting the rise in SRIT. If Nicola Sturgeon wants to run Scotland as a country with taxes not significantly at variance with those of the United Kingdom as a whole and largely in conformity with George Osborne's fiscal envelope, that's fine by me, but she should at least be up-front with the Scottish people that she's no social justice warrior in doing so. One of the big arguments made by the SNP about independence is that our current fiscal gap would not be a problem because we would totally change the dynamics of the way we tax in our state. The evidence increasingly suggests that the more tax power the SNP get, the more obviously centrist, cautious and happy to dovetail HM Treasury they become. Perhaps they're the best kind of Unionists after all.<br />
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Alas, in the heat of an election campaign, having a debate about policies that actually affect people's lives and can make a difference tend to fall by the wayside. I doubt Sturgeon or Swinney will ever need to have, let alone give, an answer to these obvious questions.Graeme Cowiehttp://www.blogger.com/profile/02704481523638679620noreply@blogger.com0tag:blogger.com,1999:blog-4824688363128407673.post-44256818132011125192016-03-21T21:07:00.001+00:002016-03-22T09:28:04.344+00:00Flying a Kite - Some thoughts on education inequality in ScotlandEducation has long been held-up as a sacred cow in Scotland. Arguably even more so than the National Health Service. For decades Scotland has lived-off its reputation for comprehensive, broad, inclusive education and the pedigree of the Enlightenment and the contribution of its Universities sector to philosophy, economics, law, the sciences and medicine.<br />
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This reputation is one that ignores an underlying reality: that Scottish education, at all levels, has stagnated since devolution. Secondary school pupils are presented for fewer qualifications, on average, than they were before, primary and early secondary school literacy, numeracy and science education rates have fallen behind international competitors (not helped by our withdrawal from PIRLS and TIMSS monitoring) and access to our Universities for the most disadvantaged, despite larger intakes and state-funded-tuition, are appalling. Budget decisions in recent years have also narrowed the scope for adult learning and vocational support, with a cut of over 150,000 college places.<br />
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Perhaps most importantly, the people that are being most disadvantaged by these various problems are those from the most disadvantaged backgrounds. <a href="http://www.bbc.co.uk/news/uk-scotland-20500476">St Andrew's University has come-in for some flack</a> over this, but others also perform poorly in this respect. A recent <a href="http://www.aljazeera.com/indepth/features/2016/03/glasgow-city-divided-learning-lines-160321140932335.html">Freedom of Information request</a>, for example, showed that a teenager living in Easterhouse was more likely to end-up in a young-offenders' institute than gain a place at the University of Glasgow.<br />
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Part of the response from Universities and the Scottish Government has been both to expand very specific and dedicated forms of maintenance support towards the most disadvantaged, and to adjust minimum admission requirements for those from more deprived backgrounds. Whilst these schemes are welcome, they are very limited in their scope for success and, financially, have actually been off-set by the Scottish Government's withdrawal of maintenance grants in favour of making student support more loan orientated.<br />
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In truth, though, to blame the Universities slightly misses the point. Scotland's education problems begin far earlier than we like to admit. The discrepancies are well-entrenched by late secondary school and arguably begin significantly earlier than that.<br />
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In Glasgow, the city I live in, this is incredibly stark. Govan High School, a secondary school in Nicola Sturgeon's constituency, saw <a href="http://www.dailyrecord.co.uk/news/scottish-news/how-well-your-kids-school-5407127#HbgAfHl2wWkyehAY.97">within the margin of error of zero percent of its pupils achieving five Higher passes</a>, the "gold standard" for those seriously contemplating going to university in Scotland. Looking down the list, other similarly disadvantaged areas, with a couple of exceptions, achieve similarly depressing results. The trend is similar in other local authority areas, with Northfield and Torry Academies in Aberdeen getting fewer than one in twenty pupils up to the 5 pass standard. Even in local authorities with generally very good records on schools and attainment, like East Renfrewshire, there are schools with weak results. Barrhead High School, for example, though punching above its weight, only secures 5 Higher passes for one in four pupils.<br />
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This isn't to denigrate the efforts of the teachers, pupils and parents in these schools; quite the opposite. They work exceptionally hard in a system that is failing to provide them adequate or fair support, of both financial and non-financial kinds. What is so damning is how badly the life prospects of children in these communities are affected by the post-code lottery.<br />
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It wouldn't be so bad, from an equality perspective, if the reason for these low pass-rates was that the exams are far too tough. But they're clearly not. In Glasgow you are one and a half times as likely to leave school with 5 Higher passes if you go to Jordanhill School than you are to leave even with one Higher pass if you went to St Thomas Aquinas School, which is barely 350 yards away, or Knightswood Secondary, 1000 yards in the other direction. In East Renfrewshire, if you go to St Ninian's, a similar pattern emerges compared with your counterparts that go to Barrhead.<br />
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These differences are too large simply to be attributable to the quality of the learning environment of the schools in isolation. Focusing more resources, whether through targeted school-specific funding or by way of a pupil-premium that tracks free-school-meal kids, might help hire an extra handful of support teachers and slightly reduce class sizes, but it is not going to change fundamentally the position of those schools. We need instead to be more radical and to ask how demographics, and especially how primary and early secondary school education, stratifies Scottish society so spectacularly.<br />
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The big successes of the London schools in narrowing attainment gaps has come through a willingness both to invest, but also to experiment. We should be cautious of directly implementing ideas that may work there but would be inappropriate to Scotland's system. Nevertheless, I think there are three areas, largely untouched by Scottish education reformers, that need to be given serious thought in the next few years. They are: the problem of the urban-rural divide; the structure of secondary schooling; and the pitfalls of catchment-based primary schooling.<br />
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<b><span style="color: blue;">1. The Urban-Rural Divide</span></b><br />
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Schools often face very similar problems in terms of being under-resourced and unable to provide a full curriculum and adequate support to their pupils, regardless of whether they are an inner-city school or serving a number of village communities in the Highlands and Islands. But the solutions to these problems are unlikely to be the same beyond the rudimentary fact that there is a greater need for resources. What works for Glasgow and Edinburgh may not be suitable for Aberdeenshire, Dumfries and the Highlands and Islands.<br />
<br />
This is not a reason not to experiment more radically with the way we provide schooling in one type of area to the exclusion of another. Local authorities need both more freedom, but also to be given greater encouragement, to try something new. Instead of having a blanket opposition to changes, like experimentation with academies and free schools, we should be prepared to look at other countries, not just England, to see what they have tried and how we might adapt that to see what impact giving head-teachers and parents more direct control over financing and management decisions in a Scottish context would have.<br />
<br />
<b><span style="color: blue;">2. Secondary Education Structure</span></b><br />
<br />
One way we might be able to overcome the problem of narrowed availability of courses in our cities and large towns' schools, would be to rethink how we divide primary and secondary education.<br />
<br />
One of the most unsatisfactory states of affairs at the moment relates to how pupils end-up being bussed from one school to another just so they can take their preferred Highers or Advanced Highers, at not inconsiderable expense, inconvenience, and disruption to the school day. We should think about whether the introduction of or experimentation with a "junior high" and "senior high" set-up in Scotland might better address this allocation of resources problem, especially in our cities and towns.<br />
<br />
This would more cleanly bring together a critical mass of students taking the same courses and allow teachers, if they wish, to specialise or focus on teaching either the younger or the older age-group. Given that the Curriculum for Excellence framework now places more emphasis on generalist learning up to and including S3, this would arguably also make more sense now than before.<br />
<br />
This would also allow for the "pairing" of advantaged and disadvantaged areas and schools, and encourage more sharing of best-practice and resources <i>between</i> schools in a local authority area. If a schools "group" that contains a high-performing school knows that its overall results are likely to be dragged-down by less good results from a paired school, they are more likely to focus their resources on improving approaches and resources for the "junior high" servicing that more deprived area.<br />
<br />
Clearly, an approach like this would be less suitable for rural areas. That is not a reason at the very least not to try it in Glasgow, Aberdeen, Edinburgh and Dundee.<br />
<br />
<b><span style="color: blue;">3. Primary School and Catchment Areas</span></b><br />
<br />
In a system where all, or almost all, schools are organised on a comprehensive basis and run by a local authority, the secondary school you go to is almost entirely determined-by the primary school you went to. That in turn is almost entirely determined by your post-code. Placement requests can be made, but are disproportionately used by families who are already relatively prosperous, or who have a strong background of education and high levels of awareness of how best to "game" the system.<br />
<br />
England does not have as stringent approaches to catchments. One of the biggest criticisms of their system, where among other things, selective schools existed, was that the system of applying for places at secondary schools is skewed in-favour of the most affluent families.<br />
<br />
A lot of educational research shows that the greatest impact on educational attainment in later life is determined by the levels of support in early-years education. It also intuitively makes sense: if you don't leave primary school able to read, write and count, you will be severely disadvantaged in secondary school where almost all of your learning will depend on a minimum standard being achieved in one or more of these areas.<br />
<br />
These discrepancies clearly emerge in primary schools. One of the advantages of primary schools being much smaller than secondary schools is that they are more intimate and are often very well-integrated into their local communities, not least in rural or smaller town areas. I know this well, having attended a village primary school in Auchtertool, Fife, from P1-3 as a youngster. One of the major disadvantages, however, is that when places for primary schools are determined by catchment areas, they bunch-together children from very similar backgrounds, economically and socially. This is arguably more extreme than it is even for secondary schools.<br />
<br />
Local authorities seldom change catchment areas either for primary or secondary schools, for fear of the massive backlash, usually from middle-class parents that have bought expensive houses to get their children into a good state school. Though my liberal instincts tend towards localised control, I wonder whether what Scotland needs is a national review into how school places are allocated, and an independent commission to look at diluting catchment areas or otherwise altering admissions rules and incentives.<br />
<br />
One of the major advantages of the "pupil premium", the idea that additional state support should follow disadvantaged pupils rather than schools, is that it, theoretically at least, encourages schools to take-on children from disadvantaged backgrounds. This mitigates against reluctance to do so, that might otherwise have been motivated by the impact on school league tables. This especially means that the best schools are more incentivised to take-on kids outside of their traditional catchment areas who have a less good attainment profile, and to maximise their chances, rather than just cherry-picking the brightest kids and taking them away from those already struggling schools.<br />
<br />
Having more diverse primary schools, especially in our cities and towns, would be an altogether good thing, and again, would encourage much closer cooperation between schools, both between primary schools and between them and secondary schools, whether or not divided along the lines described above. In any case, we need to find a way to overcome the practical obstacle of pushy middle-class parents trying to protect the existing system for their children's benefit to the exclusion of others.<br />
<br />
<b><span style="color: blue;">Conclusions</span></b><br />
<b><span style="color: blue;"><br />
</span></b> These are not yet fully-formed thoughts, but they represent the kind of more "out-of-the-box" thinking I believe Scottish education needs if it is to give a fair chance to everyone going through it. Some of this will involve doing more to empower local authorities. But some of it also means asking them either to take a genuine political risk or to cede control and let someone else have a go at improving the chances of Scotland's most disadvantaged kids.<br />
<br />
This is in-part why I sympathised with the SNP government when they decided to bring back national testing. The Scottish Lib Dems were quick to criticise this move, but I think that is a mistake. Standardised testing, if not as-such public league tables, seems to me to be an important part of the Scottish Government's armoury if it is to measure the impact of different policies and different local authority's efforts and approaches towards narrowing gaps in attainment and improving attainment in absolute terms. This includes policies like the flagship one, adopted in England and Wales that the Lib Dems now want introduced in Scotland, the "pupil premium".<br />
<br />
It is hyperbolic to suggest that four or five formal assessments (prepared in consultation with teachers and curriculum designers) a year represents an unconscionable administrative burden beyond the ken of our teaching profession. These kids will have to sit exams when they are 16-18 years old anyway, so acclimatising them to formal assessment is likely actually to help them later-on. What we really need to be doing is looking at how teaching methods interact with assessment, and how well assessment measures actual ability and meeting of learning outcomes by pupils. The argument that some pupils do better in certain types of test than others isn't a reason not to conduct the tests; it's a reason to look more carefully at what the tests are in fact testing and what teaching behaviours they are encouraging.<br />
<br />
So what do you think? I would be interested to hear people's thoughts especially on the questions of the structure and admissions factors in primary and early secondary education. I'm sure there will be those within the teaching profession who can find problems with these ideas, but I suspect the conversation about them is arguably just as valuable and important in advancing the debate about education reform in Scotland. More of the same and tinkering at the edges seems to me to have run its course.Graeme Cowiehttp://www.blogger.com/profile/02704481523638679620noreply@blogger.com0tag:blogger.com,1999:blog-4824688363128407673.post-28016829716393753212016-01-24T20:32:00.000+00:002016-01-25T16:39:28.330+00:00When is a bonus not a bonus?Let's begin with where I stand. I have long been in support of Scotland moving towards something close to full fiscal autonomy. I think Holyrood should be almost entirely responsible for raising what it spends. I've said repeatedly that I don't think the UK parties have been ambitious enough in their promises of further powers. Though the Smith Commission comes fairly close. I think there's room to devolve corporation tax, and I would probably devolve national insurance.<br />
<br />
I hate the Barnett formula. It is crude, has backed the debate about Scottish finance into a corner, and does nothing to incentivise accountable spending either at Westminster or Holyrood. The biggest error the UK Government made was to lay-out the "no detriment" principle, which basically stops them from replacing Barnett with a better method of resource distribution because it will always be the case that at least one nation is worse off in the short-term while a new system beds-in. I would scrap the Barnett fomula, in favour of a needs-based approach, like several of the Welsh reports on devolution have recommended. This would probably leave Scotland, in the short-term, slightly worse off, but it would be fairer, more accountable, and leave devolved administrations less at the whims of the macroeconomic policies of UK Chancellors.<br />
<span style="color: blue;"><br />
</span> <b><u><span style="color: blue;">The Partial Truth</span></u></b><br />
<b><u><br />
</u></b> One of the biggest myths perpetuated in the referendum, in which, remember, I voted Yes, was the notion that revenues from oil and gas would be a "bonus", not the "basis" for an independent Scotland's economy. When making this claim, the SNP would typically concern themselves with the GDP of Scotland: the overall economic output. It is true that, by a number of measures, Scotland's GDP per capita is a bit higher than the UK's as a whole. The Scottish Government <a href="http://www.gov.scot/Resource/0044/00446013.pdf">released figures in March 2013</a> suggesting that, if you included North Sea oil in the statistics for 2011, the Scottish GDP per capita was higher by just under $4000 US at purchasing power parity than the UK as a whole. There was similarly <a href="http://www.bbc.co.uk/news/uk-scotland-scotland-politics-23389830">much fanfare</a> from the SNP that the level of Scottish GDP would be about the same as the UK as a whole if you did not include offshore activities.<br />
<br />
GDP per capita is, however, only an indicative measure of the size of an economy. It does not reflect how much taxation can effectively be collected from that economy, and it does not in and of itself, give an indication what levels of public spending can be sustained in that country as a consequence. It may give a rough indication, but it does not answer the question. It does not even give a particularly good indication of the standards of living in a country, as it says nothing about the distribution of the economic output. It is blind, for instance, to income inequality and to the distribution of profits to those living in other countries, or to companies from other countries which may operate or own generators of economic activity based in Scotland.<br />
<br />
<b><u><span style="color: blue;">The Myth</span></u></b><br />
<b><u><br />
</u></b> This broader macroeconomic situation was combined with a particular set of statistics that are collected annually by the Scottish Government and published in <a href="http://www.gov.scot/Publications/2013/03/1859">March 2013</a> for the year 2011-12. Some of you will remember the stats that gave rise to the famous #indyref meme about Scotland raising 9.9% of UK taxes, but only accounting for 9.3% of UK spending. The effect of this was that Scotland ran a net fiscal deficit that year of only 5% of GDP, compared to 7.9% of GDP for the UK as a whole. The current account deficits (which excludes the impact of capital investment) were 2.3% of GDP compared to 6% of GDP respectively.<br />
<br />
"Hurrah!" They shouted. "Scotland can do better on its own without the UK holding us back!"<br />
<br />
If you were only to look at the year 2011-12, this might be a perfectly understandable conclusion to reach. There's a problem though. That year was hugely atypical. It is the only year of the last 5 when Scotland's position has been better than the UK's as a whole. In only 3 of the 15 years of GERS data since devolution has Scotland run a "relative surplus" to the rest of the UK. Those three years, 2005-06, 2008-09 and 2011-12, were the years in which north sea oil revenue was at its highest.<br />
<br />
If you were to <i>exclude</i> the oil revenue from Scotland's contribution, the "relative deficit" (i.e. the extent to which Scotland was a net recipient rather than a net contributor from the UK Exchequer) has varied between £1400 per head and £2000 per head since the beginning of devolution. Oil and gas revenues would have to raise between £6 billion and £10 billion every year to keep Scotland broadly in-line with the rest of the UK.<br />
<br />
That the on-shore deficit has remained fairly static suggests that Scotland's on-shore tax-base has not been growing in a way that would make us less dependent on oil revenues to pay our way. Indeed, in that year that the SNP were delighted to quote, Scotland's 5% net fiscal deficit would have been 14.6%, and its 2.3% current account deficit would have been 11.2%. This was the second worst the on-shore predicament has looked in the last 6 years.<br />
<br />
Oil was quite literally the difference between us being ahead of the curve and miles behind it. This was a time, of course, when Brent Crude would trade at an average above $110 per barrel. This is the peak price, save a spike in 2008, in the commodity's history.<br />
<br />
<b><u><span style="color: blue;">The Projections</span></u></b><br />
<b><u><br />
</u></b> The Scottish Government's White Paper predicted that Scotland would continue to see £6.8 billion to £7.9 billion of offshore revenues, premised on the price of oil staying around the $110 mark. We know with hindsight that this was hopelessly optimistic but in fairness, they weren't alone. The Department for Energy and Climate Change did predict shortly before the White Paper an oil price in excess of $110 in some of their own policy development assumptions.<br />
<br />
We also know that even the more conservative projections of the OBR have proved to be wildly optimistic. In March and December of 2013, before and shortly after the publication of the White Paper, they were anticipating an oil price of around $97 a barrel for Brent Crude.<br />
<br />
It's all very well for the SNP to throw up their arms and say <a href="http://www.bbc.co.uk/news/uk-scotland-scotland-politics-31967538">"we got it wrong. But everyone got it wrong.</a>" Nicola Sturgeon tried to do as much on Andrew Marr's show this morning. But the implications of an independent Scotland getting the oil price catastrophically wrong are much more severe than they are for the United Kingdom. When oil and gas revenues collapse completely it increases the UK deficit by about 0.2-0.3% of GDP. The effect on Scotland is 6-10% of GDP added to the deficit. One is a bummer. The other is a catastrophe for economic planning.<br />
<br />
<b><u><span style="color: blue;">The Facts</span></u></b><br />
<b><u><br />
</u></b> Which brings us to <a href="http://www.gov.scot/Publications/2015/03/1422">the most recent data we have from GERS</a>, which remember is a set of figures produced by and for the Scottish Government. In March 2015, the figures for the year 2013-14 were included. They showed that Scotland accounted for 8.6% of public sector revenue and 9.2% of public expenditure, running a relative deficit of about £850 per head. We ran a deficit of 6.4% of GDP, compared to the UK's 4.1% and had a net fiscal deficit of 8.1% of GDP compared to the UK's 5.6%.<br />
<br />
Our deficit in cash terms was £9.8 billion (£12.4 billion including capital expenditure balances). <i>Without oil revenues</i>, which were £4 billion (down from £5.5 billion in 2012-13 and from £10.6 billion in 2011-12), we would have run a current account deficit of 10.3% of GDP and a net fiscal deficit of 12.2%.<br />
<br />
In simple terms, our deficit has increased substantially in the last couple of years while the UK one has come down. Meanwhile, public spending in Scotland has stayed broadly the same (£66.4 billion, up from £64.5 billion).<br />
<br />
The price of Brent crude oil in 2013-14 varied between $90 to $115 per barrel. So even when the Scottish Government's projection still held true, Scotland's public finances swung into an abrupt reverse. This was partly down to levels of production in the North Sea, which had not expanded in the way many had anticipated. This is not a trend in respect of which we can expect a substantial improvement in the near future, even if oil prices recover.<br />
<br />
The price of a barrel of Brent crude oil today is $27.36. The OBR forecast for oil and gas revenue has been revised down to £100 million as of November 2015.<br />
<b><u><br />
</u></b> <b><u><span style="color: blue;">The Implications</span></u></b><br />
<br />
When I have pointed out these facts elsewhere about this fiscal gap that Scotland has, over and above the rest of the UK, there are typically three common responses:<br />
<br />
1. We will raise more tax revenue than the UK does<br />
2. GERS don't accurately reflect how much tax revenue Scotland raises on, among other things, corporation tax<br />
3. We would spend less on things we don't need, like Trident<br />
<br />
To which I have the following responses.<br />
<br />
<i><u><span style="color: #990000;">Increasing Tax Revenue</span></u></i><br />
<br />
Okay. The gap you need to fill, just to reach the UK's economic position, is over £4 billion, assuming, of course, that in March we don't find that oil and gas revenues have fallen from about £4 billion. If the OBR are right, and revenues are going to fall to £100 million, you essentially have an £8 billion hole to fill. In 2013-14, Scotland's on-shore tax revenue was estimated at £50 billion by GERS. How do you propose to increase the tax base by between 8 and 16%?<br />
<br />
Let's be generous and assume the oil revenue won't fall. As an illustration, you would save less than £4 billion if you were to cut the personal allowance to £6500, or the level it was in 2010 before the Coalition took office. That would obviously be a terrible policy from the perspective of ordinary families.<br />
<br />
You might want to shift some of that burden towards higher rate taxpayers. So let's say you introduce a 50p rate of income tax to replace the 45p rate. Treasury estimates suggest this raised between nothing and £3 billion a year for the UK as a whole in the short time it was last used. Most of that revenue, it is reasonable to assume, was raised in London, where the highest proportion of high earners live. Even if you managed to get our population share of that money, that still plugs less than 1/10th of the gap.<br />
<br />
Maybe you want to raise the basic and higher rates of income tax. Let's say you do that by a penny. HMRC estimates say that would raise about £500 million. Not great. Maybe if we raised them by 5 percentage points, we would get close to half-way there.<br />
<br />
So best case scenario we are talking a pretty substantial rise in income taxation, which will almost certainly hit "middle Scotland" and probably the poorest too. Just to stand still. Not to be <i>better off </i>than the rest of the UK, not for <i>more</i> and <i>better </i>public services. Just to stand still.<br />
<br />
This also assumes that this higher tax regime has no negative effects on growth in Scotland, which it almost certainly would. Of course, the SNP have their Jokers up their sleeves now. "Cut corporation tax!" "Cut Air Passenger Duty!" they cry. Well okay, that might stimulate the Scottish economy, but it also empties your wallet.<br />
<br />
There is no guarantee that, say, a 1-3% cut in corporation tax would stimulate more revenue to a Scottish Exchequer. In any case, the current GERS figures say that corporation tax accounts for less than £3 billion of Scottish revenue. A cut in these kinds of business tax are not going to more than double the revenues attributable to them. That requires a particular type of magic no country in the world has ever achieved. This is a question of scale.<br />
<br />
<i><u><span style="color: #990000;">GERS doesn't assess taxes properly</span></u></i><br />
<i><u><br />
</u></i> There are a number of arguments made that the assumptions made in GERS are too pessimistic and that they don't accurately reflect the true revenue raised by Scotland on the question of corporation tax, among others.<br />
<br />
There are indeed discrepancies between GERS and HMRC figures when it comes to attributing tax to Scotland. The Scottish Parliament Information Centre (SPICe) <a href="http://www.scottish.parliament.uk/ResearchBriefingsAndFactsheets/SB_13-63.pdf">address the reasons for these discrepancies</a>. GERS tends to churn out slightly lower income tax receipts, slightly higher VAT receipts and slightly higher corporation tax receipts. The reasons for this are mostly related to the purpose for which these bodies attribute tax to different parts of the UK, but the estimates are fairly close.<br />
<br />
The HMRC estimates if anything suggest a smaller tax base in Scotland than GERS, but even if on-shore corporation tax receipts were under-estimated by 50%, you would be plugging only 1/3 of the fiscal gap. In a good off-shore year!<br />
<br />
Any prospective quibble with the GERS methodology would have to show errors so substantial and systematic that it would be tantamount to bringing in two to four times as much corporation tax as it assumes we do in order radically to change the central conclusions anyone would draw from them. This is not realistic.<br />
<br />
<i><u><span style="color: #990000;">We don't need to spend money on Trident!</span></u></i><br />
<i><u><br />
</u></i> According to <a href="https://fullfact.org/factchecks/cost_trident_nuclear_deterrent-28864">FullFact</a>, the operating budget for Trident, for the whole of the UK, from 2008-2012 varied between £2 and £2.4 billion a year. This is also the expected level of expenditure over the lifetime of its operation, excluding the costs of renewal. At the moment, the Ministry of Defence is spending about £500-600 million a year towards the renewal of Trident's Vanguard submarines, with the renewal cost's upper-estimate being about £25-30 billion. This has the potential, at the very most, to double the year-on-year cost of Trident until 2028 when the new fleet of Vanguards are expected to come into operation.<br />
<br />
Even if it were the case that all Trident expenditure was attributable to Scotland (it isn't, not even close, the total defence spend in GERS is £3 billion) abolishing it would not clear the relative deficit Scotland has, even in an oil revenues year like 2013-14. You could cut the entire notional defence budget of Scotland attributed in GERS (2% of GDP) and it still would not clear our relative deficit. Just think of it that way: Scotland could literally have zero armed forces and still be in a worse fiscal position than the rest of the UK. We would have no money to spend on Bairns or Bombs.<br />
<br />
Other ways of looking at this relative gap, is that we could abolish the schools budget and still not be in the same position as the rest of the UK. In a bad year, we could abolish the schools budget, the armed forces, and cut the NHS Scotland budget by 10%, and we'd <i>still</i> only just be in the same fiscal position as the rest of the UK.<br />
<br />
<b><u><span style="color: blue;">Conclusions</span></u></b><br />
<b><u><br />
</u></b> If something sounds too good to be true, then it probably is. The answers the SNP have offered to plug Scotland's fiscal gap are woefully inadequate. Offering to scrap Trident to make the books balance is like walking into the Apple Store and offering to buy a Macbook Pro for 4 Pokémon cards. We can't have a reasonable debate about the state of our finances if the Scottish Government is going to keep obfuscating about unimportant things like who else didn't predict that the price of oil would crash.<br />
<br />
The reality is simple: if Scotland were to be responsible for raising all of the revenue in Scotland and spending all of the government money, it would have to grow faster than India or China for a decade, or substantially raise taxes on ordinary folk, or introduce swingeing cuts across the board. Not, and I repeat, to balance their budget. Simply to run the same deficit that the UK runs just now. The unspoken reason that oil is neither "a bonus" nor "the basis" for Scotland's finances for the foreseeable future, there is no bonus to be had.<br />
<br />
Self-sufficiency is absolutely something Scotland needs to achieve. We desperately need to grow our on-shore industry and tax-base to make us more competitive. But there is no quick fix, and were it not for a, yes, very flawed, set of funding arrangements that were set-up by Westminster, it would be one hell of a bumpy ride.<br />
<br />
When the next set of GERS figures are released in March, they will start to take into account the fall in global oil prices. In ordinary political times, I wouldn't want to be in the shoes of a pro-independence government, in an election year, trying to explain away a £4-8 billion hole in their prospectus. But then, these aren't ordinary times.<br />
<br />
As we celebrate the Scottish Bard on his birthday tomorrow, perhaps we'd do well to remember:<br />
<br />
<b><i>Facts are chiels that winna ding</i></b><br />
<b><i>An' downa be disputed!</i></b>Graeme Cowiehttp://www.blogger.com/profile/02704481523638679620noreply@blogger.com0tag:blogger.com,1999:blog-4824688363128407673.post-40318639942893451382016-01-21T14:53:00.000+00:002016-01-22T21:05:18.917+00:00Hysterical Nonsense on Tuition Fees Again<a href="http://www.heraldscotland.com/opinion/14218813.Iain_Macwhirter__We_must_resist_at_all_costs_the_ruinously_expensive_folly_of_tuition_fees/">Iain Macwhirter has pushed my rage buttons <i>(The Herald)</i></a>. Every single one of them.<br />
<br />
This piece he's written for The Herald is completely and utterly hysterical about how tuition fees are a dreadful idea that should be opposed regardless of context.<br />
<br />
He would do well, of course, to take a look at <a href="http://www.predictableparadox.co.uk/2012/12/scotlands-free-tuition-scam.html">this very blog</a>, in which I showed three years ago now how a student finance system that includes a fee component can actually lead to poorer graduates paying less and richer graduates paying more.<br />
<br />
But let's deal with some of the specific nonsense in his Herald article today.<br />
<br />
<blockquote>
<i><span style="color: #990000;">"Of all the injustices perpetrated by my generation on young people in the UK – absurd house prices, job insecurity, stagnant earnings – the worst is probably the imposition of unsustainable debt through university tuition fees."</span></i></blockquote>
<br />
Yes, because the exponential growth in house prices relative to general inflation and earnings isn't as bad as a student finance system that has increased admissions, increased maintenance payments (above inflation) and reduced lifetime contributions for the lowest earning graduates. Okay, Iain. If you say so.<br />
<br />
<blockquote>
<i><span style="color: #990000;">"I keep being told by university figures that free tuition is unsustainable and that Scotland is somehow out of step with developed countries. This is not the case. In countries like Norway and Denmark universities are tuition-free, and elsewhere in Europe fees are mostly minuscule. England is alone in Europe in imposing fees of £9,000 (and rising)</span></i><br />
<br />
<i><span style="color: #990000;">Germany, that great industrial powerhouse, has just scrapped university tuition fees altogether. The Germans believe higher eduction is too important to leave to the private sector, and that the system the UK has been trying to import from America is ruinous for students and society alike."</span></i></blockquote>
<br />
Right, but you're not comparing like with like. These other countries do not have as high University admissions rates as we do, nor do they have the same kind of maintenance support. Those that do, do so at significantly higher cost to the public purse. Is Iain suggesting that we should cut the number of University places available to school-leavers or that we should cut maintenance payments? Now those measures really would hurt access for the most disadvantaged!<br />
<br />
<blockquote>
<i><span style="color: #990000;">"Indeed, in America, where student debt is now $1.3 trillion, there has been a widespread reaction against the very policy Labour and the Conservatives introduced here. Hilary Clinton has made debt-free tuition the centrepiece of her campaign for the Democrat presidential nomination."</span></i></blockquote>
<br />
This is a non-sequitur straight out of the NHS school of lowest common denominator debate. The US system of student loans is completely different from the one in the UK. Repayments are not connected to earnings, there is no write-off period, and you can be sued for non-payment. As countless external commentators have pointed out about student "debt" in this country, it functions much more like a time and contributions limited graduate tax than it does any "loan" anyone will be familiar with in the conventional sense. When Hilary Clinton starts talking about "debt-free tuition" she means that the disadvantaged won't have to take out a commercial loan to pay for college. Commercial loans for tuition is something that has never even been remotely contemplated by the governments in the UK that have charged tuition fees.<br />
<br />
<blockquote>
<i><span style="color: #990000;">"The rest of Europe rightly believes education is a public good and should remain so. Yet in Scotland there has been a strand of right and left-wing opinion that has argued vociferously that free higher education is wrong and regressive: that tuition fees are a middle-class subsidy; and even, following the arguments of the educational blogger Lucy Hunter Blackburn, that students are worse off in Scotland than their counterparts in England.</span></i><br />
<i><span style="color: #990000;"><br /></span></i>
<i><span style="color: #990000;">This argument is based on a false assumption that, through maintenance grants and bursaries, poorer English students somehow are compensated for the debt they take on in fees. The former NUS President, David Aaronovitch, has even claimed that poor students in England don't pay fees at all. This is nonsense. All students south of the Border pay tuition fees though, as in Scotland, some can apply for bursaries and scholarships, which may defray some of the cost."</span></i></blockquote>
<br />
Something can be a public good without being funded entirely out of general taxation. This is meaningless rhetoric. Indeed Lucy Hunter Blackburn made many of the points I made three years ago. It is specifically lower earning graduates in Scotland that are worse off than their English counterparts. At the time I wrote the piece, 3 years ago, the repayment thresholds were such that those with lifetime inflation-adjusted average earnings of £28,500 or less would be worse off under the Scottish system than the English one. That will have fallen slightly with subsequent threshold changes, but not hugely.<br />
<br />
Macwhirter is also straw-manning the argument about maintenance grants and bursaries. This is a misunderstanding that has led to similarly hyperbolic language from Labour with respect to the Tories cutting grants and bursaries. Some grants and bursaries, it is true, are, under the old Coalition model, funded out of part of the fees that Universities charge and are supplementary. They were, however, never the major change that "compensated" for the fees though. The increase in general maintenance <i>payments</i> was the major change, which for the poorest students almost doubled. It meant that they had a much larger disposable income while at University, which is the main obstacle for those from disadvantaged families going there. What the Tory government is doing now is replacing the grant component with a loan component. This is actually very similar to what the SNP did in the last couple of years.<br />
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This is neither a fantastic idea nor a dreadful one. It's a very simple trade-off that says the more of maintenance that takes the form of a student loan, the more money you can give students up-front when they are studying. The students that end up "paying the price" of this shift to loans and away from grants are, because of how student loans are repaid, the higher paid and those later on in their careers. The impact of this is only felt when they make larger contributions later on in life.<br />
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<i><span style="color: #990000;">"But student debt is vastly higher in England because of tuition fees, and is growing so fast the Government is in a panic. Repayments have been dwindling, which is why the Conservatives have just broken their word and abolished maintenance grants for students from low-income families. Undergraduates have to finance their higher education living costs and tuition fees entirely from loans.</span></i><br />
<i><span style="color: #990000;"><br /></span></i>
<i><span style="color: #990000;">Students in England face emerging from university with debts of around £55,000. They will spend the rest of their lives with this ball and chain, the burden of which will be most acute just as they are trying to start a family and buy – or rent – a home.This will have profound economic consequences as student debt crowds out consumer spending."</span></i></blockquote>
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Yes, the UK Government is in a panic. Because the gamble they took that graduates would be earning a lot more than they actually are hasn't paid off. So in effect, we have more, direct, state-funding of Universities and students because they'll never repay all their debt. How is this <i>any different</i> from a government having to pay up-front? At best here your complaint is that the UK government is only asking high earning graduates to pay more and that there aren't enough high earning graduates. This is absurd.<br />
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It's also total nonsense that "this burden is most acute just as they are trying to start a family and buy - or rent - a home". This deliberately misrepresents how student loans are repaid, which is a flat percentage of your income over a threshold. It bites <i>least severely</i> when you are earning less. Moreover, as has constantly been pointed out, student debt is not taken into account by a mortgage lender as an existing credit risk, like any other debt would. It is merely treated as a deduction from gross income, just like income tax is.<br />
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<blockquote>
<i><span style="color: #990000;">"However, it can only be a matter of time before students realise what is happening. Some have been deluded into believing they can avoid debt repayment by keeping their earnings below the repayment threshold of £21,000. After 30 years, the debt is extinguished. But they are in for a shock.</span></i><br />
<i><span style="color: #990000;"><br /></span></i>
<i><span style="color: #990000;">The Government has already lowered the threshold for repayments by breaking another promise to raise it annually in line with inflation over the next five years. The forecast is that a majority of those entering higher education in England will still never repay their debts, the interest on which rises each year. This cannot be allowed to happen, so there will inevitably be further fiddling with thresholds to increase debt repayments."</span></i></blockquote>
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No this is total nonsense. Students aren't deliberately trying to keep their income below £21k. This is like saying that people deliberately try to keep their income below £10,500 so they don't have to pay income tax. This is stupid. Stop it.<br />
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It <i>is</i> true that the Tories have welched on the undertakings made by the Coalition about the threshold for repayment. Advocates of the Coalition system like Martin Lewis have been very critical of this recent change. However, any change to the write-off period would require legislation, and may encounter legal challenges for representing retroactive changes to the terms on which someone took student support. As we have seen, though, the dangers of thresholds being fiddled with is hardly unique to a system in which tuition fees are charged. The Scottish Government let the repayment threshold for our students consistently lag behind inflation until relatively recently, and it was only dealing with maintenance debt.<br />
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It was anticipated early-on, even before the changes the Tories are proposing to make now, that "the majority" would never repay their debts in full. That was actually the point of the system. The real question here is how much the UK Government is willing to underwrite. This feeds back to a much simpler and more fundamental question about government and it is "how much money are you prepared to spend on the higher education system". This is a question you have to confront regardless of whether or not you ask for some sort of graduate contribution. And since the type of graduate contribution England has is one that asks more of high-earning graduates than low-earning ones, it's not an aberration.<br />
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<blockquote>
<i><span style="color: #990000;">"And it's not only the threshold that is being raised; so are the fees themselves. Oxbridge colleges have been lobbying hard to charge “the market rate”. The new vice chancellor of Oxford, Louise Richardson, formerly of St Andrews University, appears to want see the American system introduced in its entirety, with no fee limit. In America, fees of $40,000 or $50,000 a term are not unusual."</span></i></blockquote>
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This is scaremongering. There are no plans to do this. The Browne Review recommended that this should be possible. The Coalition said no. Emphatically. Where is your evidence that the Tories are seriously contemplating this?<br />
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<i><span style="color: #990000;">"Why are universities so keen on fees? Essentially, because many vice-chancellors are attracted to the idea of universities being run on the model of private schools. Many already regard their institutions as private, which is one reason they are so opposed to the Scottish Government's Higher Education Bill that asserts, rightly, that they are public bodies dependent for their survival on taxpayers."</span></i></blockquote>
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This is baseless. Where is your evidence that Vice Chancellors think this?<br />
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Universities are not government bodies. They are supposed to be autonomous places of learning. If governments want to support a large proportion of the students that want to go to them for a public interest reason, that is entirely their prerogative. The objections Universities have to the HE Bill is that the Scottish Government is effectively proposing to subordinate Universities to governmental, not public, control. The Bill included provisions that would have weakened the authority of University Rectors (something Macwhirter should be aware of given he used to be one), the individuals elected by the student population to represent their interests, and would have allowed the Scottish Government to set the rules for election to, and decide who gets to sit on, the governing bodies of Universities. Opposition is not some private sector conspiracy; it is opposition to an attack on autonomy in the public sphere.<br />
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<b><u>Conclusion</u></b><br />
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Please, Iain, try to approach this with even a semblance of a level head. You have singularly failed to do so in this piece.Graeme Cowiehttp://www.blogger.com/profile/02704481523638679620noreply@blogger.com1