Judicial Review of a Confidence and Supply Arrangement

An interesting story appeared in The Guardian today, in which it emerged that there may be an attempt to judicially review any agreement entered into by Theresa May's Conservative and Unionist Party and the Democratic Unionists. 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.

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 Article 1(v) of the Belfast Agreement.

I believe this challenge will fail, for several reasons:

This isn't the Government acting

A confidence and supply arrangement is not entered into by the UK Government. 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 coalition agreement 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 governmental partiality were the Irish nationalist community not also involved in the arrangement.

Crucially, however, commitment in the Good Friday Agreement is concerned with the obligation of governments 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.

The inference of the contrary position - that this is a governmental and not a party-political act - is that no government can ever 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.

The content of an agreement would not in fact compromise "rigorous impartiality"

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".

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.

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.

This is not a domestic legal obligation

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 treaty 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.

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 international law and not of domestic constitutional law.

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 R (Miller) v Secretary of State for Exiting the European Union where what was being contested was the existence of a legal power in domestic law to make a notification under a treaty.

Why an overtly common-law challenge would (probably) also fail

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.

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.

Perhaps more importantly, courts are generally deferential when it comes to constitutional disputes. The generous reading-in of materials in Robinson v Secretary of State for Northern Ireland, 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.

Parting thoughts

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.

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.

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.

Secession Referendums and the United Kingdom

My 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.

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.

Clarifying the disagreement

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.

Adam's Argument

His argument is that:

"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""

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".

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?

The UK "approach"

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.

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.

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.

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.

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.

What norms do we have?

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.

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".

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.

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.

Political Mandates

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.

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.

What must be agreed and by whom?

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.

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.

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.

Timing

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.

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, in extremis, 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?

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.

Conclusion

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.

I do not think it is sustainable to make a constitutional 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.

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.

Wildfire 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, was shocked when, on receiving statements from the Student Loan Company, it transpired his student finance arrangement was not what he thought it was.

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.

What changed in 2012

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.

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.

What's the problem?

The news coverage of Crowther's letter has perpetuated or accepted several myths and pieces of misinformation about the new scheme. 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". This is wrong on two levels.

"THEY SOLD OUR LOANS!" No. No they didn't.

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.

It is true that some legacy loans were sold-off by the Student Loans Company in 2013. 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.

It is also true that, since the Conservatives acquired a majority in May 2015, there has been renewed consideration given to whether the loans incurred between 1998 and 2012 should be sold-off. 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.

"THIS CAUSED INTEREST RATES TO SKYROCKET!" No. No it didn't.

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 would be a breach of contract and those taking out loans between 1990 and 1998 could contest it.

But it's not even true that interest rates have rocketed on student loans under the new system, which remember hasn't been privatised. 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. 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.

At the moment RPI inflation is about 0.9%, meaning the maximum rate of interest on the loan is 3.9%. This is actually lower 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%."

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.

How it actually works

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.

The second reason it is wrong is because it completely ignores the fact that interest, for many graduates, will function as a hypothetical accounting exercise and for most will only slightly increase the total amount for which they are liable. 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 every single penny of the interest you accrued.

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.

The only people actually affected by high rates of interest are those who are paying off their student loan with several years to spare.

The frustrating thing

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.

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.

It also distracts from the ability genuinely to criticise changes made by the government that actually are 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.

The effect of this was a bit like cutting 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!

Martin Lewis has been very vocal about this change, and it is one people should 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.

Wider context

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.

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.

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. We need to demand better.

The Myth of the Squeezed Middle

One 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.

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.

Paying for It

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.

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.

Effect on Tax Paid

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.

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.

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.

Is this fair?

Let's be clear who this higher-rate tax band affects: HMRC estimates show 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.

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.

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 rich people not for good and honest public-sector workers.

Never mind, of course, that 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. 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.

"Things were better in my day"

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. The personal allowance was £3005 (£6161 in 2015 value) and the higher-rate kicked-in at £23705 (£48601 in today's money). 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 the basic-rate of income tax was 25p, not 20p, in 1990-91.

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!

Current Proposals

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.

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. I covered the flaws of their reasoning on this in a previous post a while back. 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.

If the SNP were to slightly lower 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.

The Live Election Debate on Tax

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.

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.

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.

Equal Marriage - Contact your MP

My MP John Robertson (Labour) - are
you in support of equal marriage?

Please check the Coalition for Equal Marriage website to find out if your MP has indicated how they intend to vote on the extension of marriage to include same-sex couples in England and Wales. If they have not publicly ventured their opinion, please write to them and ask them to publicly state their support for Equal Marriage, or otherwise state their reasons for not doing so. I noticed today that my MP has not made clear his intentions, so I contacted him using this website and hope to receive a reply soon. I also asked him to take action to ensure proper representation of transgender issues in this new piece of legislation, something regrettably and all too easily neglected when dealing with these questions. What I said is included below.

Dear John Robertson,

I write to you both in a personal capacity as one of your constituents and in my capacity as President of Glasgow Liberal Youth and Glasgow University Liberal Democrats. As you will be aware, the House of Commons will be voting on a Bill which proposes to extend marriage to same-sex couples, both for civil ceremonies and for certain religious ceremonies (but in the latter case only where that religious denomination is not banned from doing so and where they wish to do so, thus not compelling any unwilling celebrant).

Although this legislation does not apply to Scotland, which is dealing with this matter through its devolved institutions, this is fundamentally a question of civil rights, and the recognition in England of same-sex marriages entered into by people in Scotland and vice versa remains a very important issue, especially given that it is quite common for people to have family both sides of the border.

As I understand it, you have not made your views on this matter public, and groups such as the Coalition for Equal Marriage are unaware of your voting intentions. It is a matter of vital interest for your constituents, many of whom will be an LGBT minority group that we know your intentions on this matter, so that they may maintain confidence that you stand firmly in support of their civil rights. I was hoping, therefore, that you could confirm both to me and publicly, that you intend to support these new measures when they come before a vote in the House of Commons, so that we can make the whole United Kingdom a more free, more fair and more equal society.

I have an additional concern I would like you to raise with the government at Westminster in relation to this legislation, insofar as it affects those seeking to have a change of gender recognised under the Gender Recognition Act 2004. As things stand, if someone seeks to change their gender and they are in a marriage or a civil partnership, that "contract" ceases to be valid, since both marriage and civil partnerships expressly exclude (under law) same-sex and opposite-sex composition respectively. If the opportunity is available to you, please ensure that an amendment is put in place that guarantees that no marriage or civil partnership will become invalid by reason of gender reassignment. In practice this may require that civil partnerships are extended to heterosexual couples, or that civil partnerships are to be abolished and all existing such partnerships converted into civil marriages.

If you could possibly attend to these matters I should be most grateful.

Yours sincerely,

Graeme Cowie

Sunday Trading Laws - Dissecting the conservative Medusa

This is a response to the article "Sunday trading laws protect the family and civil society. Libertarians should not do away with them." by Thomas Byrne (aka @ByrneToff), which appeared on Conservative Home earlier today.

Why do Sunday Trading Laws exist?

Thomas offers broadly three strands of argument for why the Sunday Trading Laws exist. The first is historical, cultural and religious, and promulgates this idea that protecting Sundays from work strengthens the family unit. The second is couched in the language of employment rights, and protecting employees from being exploited by large retail outlets insisting they work long weeks. The third is couched in the idea that free trading hours only help oligarchical supermarkets and harm small businesses, who need protected.

Let's look at those arguments in turn:

1. History, Culture, Religion, the Family

The first argument we get opens as follows:

"To [relax Sunday Trading Laws] wouldn't be a declaration of war upon Christianity, the damage has been done there by the changes in 1994. This would stick up two fingers to wider society and the soft Christian outlook that they hold"

This employs the following suppositions. First, it claims that the 1994 reforms (which allowed shops to trade on Sundays, but restricted larger outlets to only 6 hours of trading) were a "declaration of war upon Christianity". Without wishing to be too curt, that is drivel. Christianity was not undermined by allowing individuals to buy and sell things on a Sunday. Let's be clear what we're talking about here. At the absolute maximum, we are talking about an erosion in the influence of Christianity on the laws of the state. The ideas of Christianity, and the pursuit of religious ends by Christian individuals and Christian communities was somehow undermined by permitting people to trade on a Sunday is totally unsubstantiated.

For this critique to be a valid one, therefore, references to Christianity, must refer to the influence of Christianity on the law and the state in shaping society. But then Thomas and others have to explain why it is morally legitimate for Christianity to do this, but not any other belief system. Why should trade be prohibited or heavily restricted on a Sunday because it's the Christian Sabbath, but not on Saturdays for the Jewish Sabbath, or Fridays for the Islamic day of rest and prayer? What is so special about Christianity.

We get an attempt at an answer when he says that relaxing Sunday Trading Laws would "[stick] up... two fingers to wider society and the soft Christian outlook that they hold". There are two problems with this. Firstly, it is simply categorically not true that "wider society" holds a "soft Christian outlook". Wider society is not a homogenous or contiguous group with one set of values as to how families should operate, when they should work, when they should rest, and what constitutes positive collective activity.

On the particulars, this assertion is empirically untrue. Only a slender majority of the English and Welsh population identify as Christian (circa 53.48%) and even then, only 29% of the population consider themselves to be "religious". That isn't evidence of a "soft Christian outlook". That's evidence of a declining religious/Christian outlook in our society, and a small minority of our society considering values exclusive to religion playing in any sense an important part of the way we conduct our affairs with other people.

But let us assume for a minute that we were in a society in which the overwhelming majority of the population went to church every Sunday, held sincerely the view that trading on the Sabbath was morally wrong and that people should spend Sundays with their families. Let's say then, that we have a Sunday Trading Law. Is it then legitimate for them to insist that nobody in their society can say "oh my God" or "Jesus Christ" because in a "Christian worldview" or "Christian outlook" these things constitute blasphemy? Is it then legitimate for that group to insist that no one in that society may engage in a homosexual relationship, since that contradicts their historical "soft Christian outlook"?

No. Religion does not command moral legitimacy over our laws simply because, historically, large sections of society have agreed with them. That it's the way it was always done does not mean that it's the way it should be. This is a classic example of the Hume's Guillotine. Religion needs more than prevalence to justify a special place in the law and the morality contained therein. The only legitimate presumption of all laws is that they should have a secular application. The only way you avoid imposing a morality on other people is to recognise that there is a plurality of views about what the family is and how it interacts with wider society.

Even if we think of Sunday as a secular universal day of rest, as Thomas would then like you to ponder, he casts implicit judgment about what families should be doing with this day of rest. This conforms to a historical and coercive idea of the family unit, how it functions, how the constituent parts interact. He hectors families who value different forms of "together time" than that which conforms to his world-view:

"There is a clear divide between the young and the old as to whether the current laws should stay the same as the invisible hand of business has crushed tradition. Some couples now see shopping at supermarkets as a leisure activity in itself. Has family time really been reduced to buying the latest games console because the state won’t grant them any time to form a real relationship with their children?"

The reality is that the family unit is a lot more complicated and a lot more plural than the traditional unit suggests. Some families have different commitments from others: some will value going shopping together, as a communal activity that they could not otherwise enjoy on other days when fitting them around their hectic weekday schedule and that busy Saturday taking kids to and from sporting activities or other events. Some families will value spending a cold, wet and rainy weekend in front of the television playing Wii Sports and watching Doctor Who, before choosing to amble out to Asda after 6pm to do a big shop that sets them up to make all the kids pack lunches the following week with fresh food.

What Thomas has to answer is why that choice by a family is any less legitimate than surrendering their already limited free time at other points in the week to a set of laws that are inconvenient for them, for a morality they do not share.

2. Employment rights, universal benefit/perk/quirk

Second, we've got this idea that relaxing Sunday Trading Laws is to "allow ourselves to capitulate entirely to [large employers'] needs and demands."

Further, we have this idea that:

"Sunday before 1994 was a day in which families were, for a while, set free from capitalism and were able to join together as a family, or as a community, knowing that they were all equally able to set aside their time for this task

...

The law was widely supported because it was a privilege that was universal.
...

What we have seen is Sunday slowly turned into just another day where the poor are forced to work and therefore forced away from their family and friends."

This is a spurious narrative. It runs three suppositions. Firstly, it supposes that there is a universal entitlement not to work on a Sunday. Secondly, it supposes that relaxing Sunday Trading laws forces people to work longer. Thirdly, it supposes that forcing the majority of people to take their time off on a Sunday is inherently more valuable than to let them take their time off at any other time.

So let's deal with these in turn.

Not everyone can choose not to work on a Sunday. For our society to function properly and productively we need people working all the time. Criminals don't refrain from crime on Sundays. Ill people don't refrain from dying on Sundays. Fires don't put themselves out on Sundays. Electricity doesn't produce itself unattended on Sundays. The essential and pleasurable services we all take for granted that make our weekends so enjoyable and entertaining all rely upon other people working during those times. To open the cinema for that family unit to do something fun together. To have that meal out to celebrate mum's birthday that everyone's been looking forward to. To buy that crate of lager at short notice from the local supermarket before multiple generations sit in front of the tele to watch the football, or the bottle or three of wine to take in while playing Trivial Pursuit after dinner.

Nurses, doctors, offshore workers, Christian religious leaders(!) and many other workers, including those in the service sector, are needed to work on Sundays. Hell, it even includes workers in small supermarket stores! The claim that this rigid week structure is somehow an ideological universal entitlement is wrong by any objective measure. You have to explain why it is that this "universal" value does not have to apply to those working in the service sector, small shops, and jobs not involving trade. Unless you can do that, you cannot say with a straight face that Sunday Trading Laws emancipate workers.

Secondly, the idea that relaxing Sunday Trading Laws necessarily forces people to work longer. Note the use of the word "force". Presumably that's why it's bad, right? Well this just isn't borne out in evidence. Workers are not "forced" to work on Sundays in Scotland. Indeed, when the Sunday Trading Laws were relaxed up here, specific protections were put in place so that it could not be insisted that someone on a standard weekday contract would also work on a Sunday. Further, there are specific statutory limits on the number of hours someone can be expected to work in their regular working week (48 hours) under EU legislation. The idea that relaxing Sunday Trading laws forces the poor back into a Victorian dystopia is perplexing.

In any case, those who work on Sundays at the moment work an atypical working week. They might be part-time staff. They might be young single parents who can only get childcare assistance from the rest of their family at the weekend, and need the extra hours to pay the bills and provide for their kids. Sunday work is freedom for them! It gives them the flexibility, and the choice, to participate in the workforce on terms closer to their optimal preference, in a mutually beneficial arrangement with their employers. The sort of people who currently work on a Sunday for a supermarket will, almost to a man, be grateful for the extra two hours pay they're going to get for their standard 8-hour shift. What they lose is two hours in the morning. They still have their evening to enjoy with their family. Their lives are far freer than, say, those who work the nightshift or an off-shore two-weeks-on two-weeks off arrangement in the North Sea's oil rigs.

If supermarkets or similar large stores need more employees to stay open on a Sunday for longer: good. There are lots of people looking for work right now. An 8-hour shift is far more attractive to someone living hand to mouth off the state than a 6-hour one. More people in employment is generally a good thing.

Third, this idea that Sunday is still a special case from the perspective of employment rights and that having to take your day off on Sunday is better. This has been demonstrated above to be false, given then wide variety of demographics, personal circumstances and personal preferences of workers, families and consumers alike.

If Thomas was serious about protecting employment rights and an enabling function to quality family time, he would instead endorse my proposal, and something I think should be Liberal Democrat policy. Abolish the standard working week. End once and for all the idea that the typical worker must work Monday to Friday/Saturday and taking Sunday off. Instead, create a statutory right to two days unpaid holiday for every five days worked. Give the employee a statutory right to fix one of those days to a day of the week of their choice. Then give the employer a statutory right to fix the other. In the event the employer declines that right, the employee can choose the second day.

That would be more of a universal right, more empowering for workers, and give them the opportunity to shape their working week around the specific requirements of their family. We don't need to appeal to history and pseudo-religious cultural values to protect the workforce from exploitation.

3. Protect small businesses

Simply put:

"The effect of dismantling the remaining trading laws would simply be to erode the protection that small business owners and their employees have to spend time with their families and then destroy their business entirely. It would force the supermarkets to open full hours on a Sunday (and all the staff that entails) in order to stay in competition without any benefit to the consumer, apart from their own convenience.

...

The message that it sends out is that "God helps those whom he has already helped". Supermarkets need no more help from us.

Where to start...

If a small business owner wants to spend more time with his family, they are completely free not to open his business premises during that time. That is their choice. If someone does not want to work on a Sunday, they can enter into an employment contract which specifies that they do not have to.

No supermarket will be "forced" to trade 8-hours on a Sunday. I'm sure most would anyway, but that's their choice. If they expend more money on the labour-force without increasing their profitability, fine. I thought you were fed up of the special privilege supermarkets have in the market? You cannot simultaneously say that this will be good for supermarkets and then say that they will be the ones forced to do more to cater to their customer's more demanding requirements.

The thing about retail and the ethos of supermarkets, is that convenience is king. With the advancement of these economies of scale, we've ended up with cheap, mostly good quality food, readily available to the masses when they want and need it, so as to increase the opportunities and choice consumers have in what they do with the rest of their time. As an idea it is fundamentally subservient to "wider society". This is what we call "progress".

This isn't about boosting GDP or solving the economic crisis. It's about looking for ways that the market can better meet the demand of its consumers. Convenience is a big part of that. It is something to be valued in and of itself and instrumentally. The target market for convenience isn't the high paid middle-class bourgeoisie, whose working hours are already comfortable and whose routines are already relatively decadent. This is about the modern family, in all its shapes and sizes, for whom time is a precious thing with no shortage and variety of demands upon it. It's about offering more flexibility to those who need to work at the weekend and those who need to buy things at the weekend.

For those who value Sunday, they can still choose not to work that day. They can still choose not to go to the shops that day. They can still choose to spend that day with their family and to say grace at the table. If there's enough of them, the supermarkets will probably respond accordingly by employing fewer staff for a quieter shift. If as Thomas says, people go to supermarkets because they are cheaper and more convenient, then perhaps these "small businesses" he says need protected are actually part of the problem. They're expensive and inconvenient for the consumer, and they don't value them any more. They don't need protecting.

And yes, supermarkets need brought down a peg or two. It shouldn't be straightforward for Tesco to monopolise a whole city by abusing the planning system. But telling them when they can and can't sell stuff on a Sunday doesn't stop them dominating the market, it doesn't empower their or other workers, and it doesn't help the single mum who can't find anywhere after 6pm within reach that sells Pampers nappies. All it does is serve as a sop to a pseudo-religious minority within our society who find the idea that people can do what they like on Sundays offensive.

Guess what. You don't have a right not to be offended.

My response to the UK Scottish Referendum Consultation

I have responded to the UK Government's consultation on the Scottish Independence Referendum and enclose my comments verbatim below. I would strongly encourage all, regardless of their political persuasion, to make their views known so that we get the most considered and appropriate result. Constitutional law is not something to be treated as a political weapon (by either side of this debate) and legal clarity is imperative.

To whom it concerns,

Please find attached the document containing my response to the consultation document published by the UK Government in respect of the delivery of a legal and impartial referendum on Scotland's constitutional future. I trust that the UK Government is content to give considerable ground on its assumed position, which I consider to be untenable on a number of grounds into which I elaborate through my responses.

Kind Regards,

Graeme Cowie

Q 1: What are your views on using the order making power provided in the Scotland Act 1998 to allow the Scottish Parliament to legislate for a legal referendum in an Act of the Scottish Parliament?

A: This is probably the most appropriate cause of action, given the s30 procedure requires proper consultation with the Scottish Parliament itself. The alternative would be to make for such a provision as an amendment to the current Scotland Bill, which has its merits in certain respects which I shall elaborate on in question 3 and also in 4-6.

Q 2: What are your views on the UK Parliament legislating to deliver a referendum on independence?

A: Clearly it has the legal power to do so (unlike the Scottish Parliament at present), but on a principled constitutional level and on a basic political level this would be incredibly stupid. Not only would it lend itself to allegations that Westminster was “dictating” the terms of a referendum to an SNP administration with a clear political mandate on the matter, but it would also allow English, Welsh and Northern Irish MPs a say on the formulation of the questions. This is a matter for Scotland and its representatives alone.

Q 3: What are your views on whether the Scotland Bill should be used either to:
i) give the Scottish Parliament the power to legislate for a referendum; or
ii) directly deliver a referendum?

A: As I explained in response to Q 1, there is an argument for doing the first of these rather than issuing a s30 order, which I will elaborate upon later. As for the second, I emphatically reject it for the reasons highlighted in my response to Q 2.

Q 4: What are your views on the oversight arrangements for a referendum on Scottish independence?

A: In general terms, I agree that there should be constitutional consistency of matters of franchise and performance of electoral procedure by the existing bodies. However, I would draw attention to one of the recommendations from the Calman Commission, a provision supported by all of the parties with representation in the Scottish Parliament, that matters such as the franchise and the arrangements for local and Scottish Parliamentary elections should be devolved in the Scotland Bill down to Holyrood. The UK Government's decision not to implement this proposal through the primary legislation should be revisited. It logically follows that if Holyrood is to be allowed to set the franchise conditions for those elections, that it should control similar functions for any referendum which only applies to Scotland.

Q 5: Do you think the Electoral Commission should have a role in overseeing a referendum on Scottish independence?

A: Yes I believe that the Electoral Commission is the appropriate body for oversight of the referendum. I do not believe a Referendum Commission set up separately (regardless whether it is set-up by Holyrood or Westminster) is either necessary or expedient. The EC has shown itself perfectly capable of carrying out both UK-wide and devolved referendum oversight without any questions of impartiality.

Q 6: What are your views on which people should be entitled to vote in a Scottish independence referendum?

A: In general terms, those who should be allowed to vote should be the same as those who are eligible to vote in the Scottish Parliamentary elections. I notice that this question omits to respond to a key area of contention, which relates to the age at which people should be allowed to vote. Without entering into the politics (e.g. accusations of opportunism on one side, and of inconsistency by some on the other) my response to this should be understood in the context of my response to Q 4. The franchise arrangements for Scotland-only elections and referenda should be a matter for the Scottish Parliament to decide. On the principle, I believe they should be allowed to lower the voting age to 16 should they so desire, but it should be done for all Scottish elections through an Act of Scottish Parliament at some point within the next twelve months once the Scotland Bill (with my recommended amendments) passes into law.

Q 7: What are your views on the timing of a referendum?

A: This should be a matter principally for the Scottish Parliament. Contrary to the suggestion in the document, there should be no “sunset clause” of any kind in the event the power is extended either through a s30 order or through the Scotland Bill. The SNP have indicated they wish to hold it in the Autumn of 2014, which is a date completely within the scope of their manifesto pledge and they should be entitled to move forward on that basis.

A reasonable restriction may be that the power may only be invoked once in X number of years (to prevent perpetual referendums on the same issue) but as a matter of expediency, that matter should be agreed upon in advance with the Scottish Government. I note that Alex Salmond has said that this issue is very much a “once in a generation” issue and a mandatory interval of between 10-20 years between referendums on Scottish independence would make sense.

Q 8: What are your views on the question or questions to be asked in a referendum?

A: There should be two questions on the ballot. The first should be a question about whether or not Scotland should become an independent sovereign state. The second should read, approximately, “notwithstanding the response given to the first question, should the Scottish Parliament have (e.g.) full taxation powers and extended competence in several other presently reserved areas.” In the event that the first question receives more than 50% of the popular vote the second question should be completely disregarded.

I do not share the view of the UK Government that a second question somehow “complicates” matters, though the ordering and wording of the questions should be very carefully crafted so as to leave absolutely no doubt that, notwithstanding the response to any “devo-max”-esque question, a majority vote for independence will be honoured. The idea that the people of Scotland can't understand a very basic premise of a two-question referendum on connected but alternative propositions is frankly rather insulting. There are only likely to be a maximum of three campaigns anyway (a Yes-Yes, a No-No, and a “Yes to more powers, No to independence”). The “Yes to independence, No to more powers” group would be so ridiculously tiny and arguing almost as obscure a proposition as someone in 1997 saying “there should not be a Scottish Parliament but it should have tax powers”. There are genuine areas in need of clarity here, but the UK Government must desist from looking for obfuscation when it's not actually there.

Q 9: What are your views on the draft section 30 order?

A: The Order in its current form is manifestly inappropriate in light of the various issues I have elaborated upon above. The proposed Schedule 5A has a number of problems which I shall list:

Para 2: It is not necessary to require that a referendum not be held on the same day as other elections. Whilst that may be expedient in and of itself to hold a poll on such an issue outside of other election cycles it is inappropriate to insist on such a provision, especially given that the UK Government only as far back as May 2011 held a referendum on the Alternative Vote at the same time as Scottish Parliamentary elections AND English local council elections. Given Scotland's rather negative experience with multiple polling in 2007 I doubt the Scottish Parliament would seek to hold simultaneous polls in any case.

Para 3: This is a blank sunset clause. There should be no sunset clause on the power to hold a referendum. As I explained earlier a reasonable time provision would be to impose a mandatory waiting time between polls on the subject matter of between 10 and 20 years.

Para 4: This provision seeks to prevent a second question being present on any ballot. For the reasons I gave earlier, this provision should be removed.

Para 5: This limits the franchise to those entitled to vote for “the Parliament”. In the interests of clarity I would insert the word “Scottish”. For the reasons I gave above this may yet involve the lowering of the franchise if you (wisely) reconsider Calman's proposal about devolving the essential components of Scottish Parliamentary and local council elections to Holyrood for consideration.

Para 6: This is a connected issue to Para 5. The thrust of this provision is fine, as long as the relevant derogations are made to allow the Scottish Parliament to make the changes it sees fit in the ordinary course of business rather than simultaneously with the Referendum Bill.

Appeal to Ken Clarke - Join the Liberal Democrats

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

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

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

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

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

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

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


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

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

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

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

22 Days in May - A Major Lib Dem Concession

A few days ago I took ownership of David Laws' account of the negotiations following from the 2010 General Election result. It's a fascinating read (I'm about 1/3 of the way through) and I'd recommend people add it to their lists. My favourite exchange between the negotiating parties is one I hadn't seen in most other reviews of the account. I hope the publishers don't mind if I reproduce the following section (p117-118):

"We paused briefly to consider the issue of what we should say about Britain joining the euro. 'It will not surprise you to know that we are opposed to this," said George Osborne. Chris Huhne, a former MEP and euro enthusiast smiled, and said, 'Well. We have met none of the criteria for convergence, so this is not really an issue.' I shouted out 'Hurrah!', as I have never been a big fan of Britain joining the euro, and have never thought that there was the slightest chance of the British people supporting the euro in a referendum. Andrew Stunell lent forward and said to the Conservative team: 'I hope you realise that this is a very big Lib Dem concession!' We all laughed."

Some other interesting parts include some of the lessons learned from Coalition negotiating strategy in Scotland, with David Laws having been involved in the 1999 talks. It was a curious contrast of Labour's strategy in those talks, where they faced deadlock for about 4 days on a number of key policy differences before relenting, as opposed to desperately scrambling towards Lib Dem positions without the credibility of numbers in the lobby to back them in 2010. What was more intriguing was the way the impasse over the AV referendum was dealt with; being referred up to Cameron and Clegg to discuss so as not to compromise progress on other policy negotiations.

DNA - Do Not About-turn

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

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

"Remove innocent people from the police DNA database and stop storing DNA from innocent people and children in the future, too." Liberal Democrat Manifesto 2010 p94

I recognise that the Coalition's position on this was more nuanced, stating:

"We will adopt the protections of the Scottish model for the DNA database." Coalition Agreement 2010 p11

And for the sake of completeness, the Conservative Manifesto said of DNA retention:

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

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

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

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

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

Tough week for the Liberal Democrats

Been a rough week for the Lib Dems: since the election, they've seen their poll ratings down about 10% or so, on 14% according to the latest YouGov poll. A lot of tiresome "ConDem" bashing is really starting to get on my wick.

A few stories in particular caught my attention, though. The first is in relation to Simon Hughes, who to be fair was never exactly going to be a LibCon enthusiast. He caused a bit of a stir by talking about a coalition veto, and reiterating that a future LibLab pact was still "on the agenda". When I first saw this, my immediate reaction was quite similar to Boris Johnson's aide and London Assembly member James Cleverly: it came across as Hughes trying to derail the spirit of the coalition in what is undoubtedly a challenging context. I was particularly angered because the inference I drew from his, and the mutterings of some other LibDem supporters I know was that they would only ever be comfortable with a coalition with Labour. It seems to me, frankly, to be quite hypocritical for those who believe in proportional electoral systems and therefore coalition based government, not to work with the coalition the election result dealt them. How democratic would it be if, under STV, we had de facto permanent LibLab government because their core votes plus just a handful of swing voters happens to make-up 50% or thereabouts of the voting electorate?

Tony Benn once said of those in power that one of the most important questions we need the answer to is "how can we get rid of you?". A Liberal Democrat party backing Labour all the time would make it absolute hell to get rid of an almost certainly Labour dominated government. Given Labour's track record of overspending and expanding the state beyond acceptable levels, that would be a truly dire, illiberal and certainly undemocratic reality.

HOWEVER, having thought about it for a couple of days, I actually think what Simon Hughes has done is a potential blessing in disguise: for the Lib Dems AND for the Coalition. With Labour doing everything they can to leech off  Lib Dem support (more of later!) the main accusation has been that the Lib Dems have been annexed by the Tories and have sold-out their principles to facilitate cuts. The effect of Hughes' superficial scepticism of the coalition could be to act as the lightening rod for Lib Dem disaffection, preventing large-scale defection to Labour and providing Nick Clegg with a useful check on the Tories if they try to deviate too far from the coalition agreement. Because of their core votes, the Tories are never going to be fully social liberals, and the Lib Dems never fully economically liberals. In the absence of a strong "libertarian" grouping in the UK, the existence of a strong Liberal Democrat party is absolutely essential to produce even occasional semblance of such an agenda. By channelling economic disaffection to a figure within the Lib Dems, the Coalition is more likely to hold, and in time, prosper.

The second "news" story relates to rumours that Charles Kennedy and 5 other Liberal Democrat MPs are planning to defect to Labour by the end of the month. The claim has been denied officially by Lib Dem Officials and although not yet by the man himself, I'm largely sceptical that there's any truth in it. Jo Swinson, one of those I would have thought would be among any number led by Kennedy, has point blank denied knowledge of any defections in the pipeline (Kennedy or others) and made clear in no uncertain terms that she has no desire to defect to Labour! As a final link, after a lot of speculation on Twitter, I thought this Tweet rather hit the nail on the head.

If, however, the rumour does prove to be true, I think it would not only be a sad day for the UK's liberal agenda, but would also reflect very poorly on Charles Kennedy, a man for whom I have a lot of respect. It is one thing for him to oppose the Coalition deal on a variety of policy and identity grounds. It is quite another to show total disloyalty and contempt for your successors, and to spit the proverbial dummy out the pram because your democratic party have come to a different conclusion from you. I hope for Kennedy's sake that this isn't true, and that he fights his battles from within the party, instead of making friends with those responsible for a 40 year debt legacy, erosion of civil liberties and the greatest vacuum of principles in British politics through the New Labour project.

My last article sees Nick Clegg's rebuke of a member of the public accusing the coalition of going on "an ideological crusade to attack the weakest in society". 

Leaving aside the low-grade rag the story's taken from, I find myself having a lot of sympathy with the content and manner of Clegg's response. The never ending rhetoric that's being thrown about, portraying the Tories (and via the Coalition, the Lib Dems) as people that will sell your gran on eBay and make you pay the Paypal fees is getting utterly tiresome. The public finances are in an absolutely appalling state, and people don't seem to be picking up that a) almost all of the cuts were of the scale and ilk Alistair Darling alluded to in "the deepest cuts since Margaret Thatcher", so would have been done by Labour anyway b) they're trying to minimise the threat to the absolute poorest by looking at universality of benefits and lowering, for example the Child Benefit threshold so families on two professional salaries, who clearly don't need it, no longer get the same as those who are genuinely impoverished.

Economic growth over the next few years, regardless of deficit reduction model, was never going to be as substantial as during the Blair-Brown years. The suggestion, therefore that we can sustain those sort of levels of spending, when Brown ran up annual deficits during boom-time, is borderline hilarious. The problem with the last 13 years is that people have grown to expect that the state will assist them to a level simply not viable. Responsibility and hard work have been replaced by senses of recklessness and entitlement. Of course some of the public spending was inherently good; few argue with that. The problem is that it was too much, too quickly and too unaccountably. PFI contracts handed out willy-nilly, keeping new schools and hospitals off the balance sheet, leaving the children of people yet to be born to pick up the last of the bill for facilities that will almost certainly be redundant in under 20 years. A tax and welfare combination that makes it less of an incentive for people to work more than 16 hours a week on the minimum wage than to sit at home and pretend to look for a job. That's the legacy we inherit, and although the next four years are going to be bloody difficult for all (and yes we'll have to be especially careful about the vulnerable) a sharp dose of reality being brought to public sector finances will leave us much stronger going forward.