Round 2.0

Nicola Sturgeon announced this morning that, in the absence of evidence of the United Kingdom government making concessions to accommodate the devolved nations in their approach to Brexit negotiations, she intends to hold a second independence referendum between Autumn 2018 and Spring 2019. She has stated she will seek that the UK Parliament should make another section 30 Order, transferring competence to allow the Scottish Parliament to legislate for such a referendum, on essentially the same basis as happened in 2013 ahead of the one in September 2014.

The Scottish Parliament does not, on the face of it, have the legislative competence to hold a referendum. Legislation that "relates to" the "Union of the Kingdoms of Scotland and England" is "not law". The effect of this is that the Scottish Parliament cannot, among other things, use the full electoral register, have a referendum overseen and managed by the Electoral Commission, or authorise or regulate donations and expenditure to facilitate the holding of such a poll.

If a poll took place against that backdrop, it would be very similar to the "non-referendum popular consultation" organised by the Catalan Government in November 2014. Several officials of the Catalan Government have since been brought before the criminal courts on charges of disobeying several constitutional court orders and misusing public funds. That referendum had low turnout, boycotted as it was by the anti-secession side at the urging of, among others, the Partido Popular and the Spanish Government led by it. The result was therefore ignored by the Spanish Government, on putatively constitutional grounds.

Whether Nicola Sturgeon would be prepared to defy the UK Government, and potentially the UK Supreme Court, and hold a referendum or an unofficial poll anyway remains to be seen. In other countries, like Canada, there is not an explicit prohibition on the holding of secession referendums by sub-state governments. Quebec, for example, can unilaterally hold a referendum, but the result only commits the Canadian government to "enter into negotiations to respond to the desire" of the people to secede. This clearly falls far short of a legal obligation to give effect to secession, but allows the people to have their say.

There are two aspects I wish briefly to reflect-on today. One of them is political, and the other is constitutional.

She has called this too soon

Firstly, I think Nicola Sturgeon has made a mistake today. She was half right when she said a referendum should not happen until the terms of Brexit are known but before Scotland is prevented from choosing its own path. The problem here is one of basic chronology. If you hold a referendum in Autumn 2018 or Spring 2019, there simply is not enough time to negotiate the terms of secession from the UK before a Hard Brexit takes effect. Short of unanimous agreement by the Member States, we Scotland will be "dragged out of the EU against our will". There is therefore nothing to be gained, in my view from holding a referendum this soon and potentially it is more likely to create unnecessary uncertainty by mixing the two processes. It would be far smarter to have waited until the Brexit deal actually takes effect, since it will likely take effect before independence regardless before returning to this question at a point when potential accession talks would be more feasible. I think she is more likely to lose a referendum that takes place sooner and as the Quebec experience shows, this really would kill the question for a generation to lose second time around.

Section 30 is just asking for a fight

The second point is that the constitutional position, which insists the Scottish Parliament must get consent to hold a referendum, is itself a flawed one. It sets two governments up against one another, and suggests that, on a more fundamental democratic level, this isn't a decision that the Scottish people are entitled to take for themselves. This reflects a particularly restrictive conception of devolution and of the union itself, and essentially says that the powers of self-government of the Scottish people are at the generous forbearance of Westminster and not ones that exist as of right. It is my belief, and I have argued in my (as of yet, not complete) doctoral thesis, that the UK should have adopted a different approach, granting general competence in this area to the Scottish Parliament, but subjecting it to conditions. We should be borrowing from other ways this issue has been dealt with. This might include minimum waiting periods between referendums (as in the Northern Ireland Act) and higher or discretionary thresholds required depending on the nature of the question asked and the frequency of referendums (borrowing in part from Canada's Clarity Act).

The effect of creating a possible situation in which referendums are denied, or held unconstitutionally, degrades the democratic process. It undermines the ability of political institutions to ensure that referendums are properly regulated and monitored, and it generates a gap between the perceived political legitimacy of processes in the eyes of the people and the constitutional legality of processes. It is also a massive boon to sub-state nationalist movements, which typically see a surge and solidification of support when governmental and judicial institutions are seen to act intransigently towards them. At least if you permanently regulate the terms on which a referendum may be held, that removes partisan vetoes from the equation. It says that the Scottish Parliament must ultimately decide for itself what is the responsible course of action.

We must also learn to separate the holding of referendums from the implementation of their results. The EU referendum shows why this is important, but so does the Reference Re Secession of Quebec. In the absence of governmental consensus, the proper forum to resolve the differences of opinion in relation to secession should be in how the UK responds to the vote to secede and not a quarrel about whether or not the referendum should be allowed to happen. As Stephen Tierney and others have said in the past, one of the biggest strengths of the 2014 Scottish referendum was that it debated substance not process. If our second referendum is to be more like the Catalan one, and less like either the first Scottish one, or the second Quebec one that the Canadian government went out of its way not to prevent happening (despite it arguably being, then, unconstitutional) then that is going to be much less healthy for reconciling the Scottish people after the votes are counted.

No one should want that.

Citoyens du Monde

In her speech to Conservative Party conference, Theresa May said that if you are a citizen of the world you are a citizen of nowhere.

Insodoing she surrendered any moral right to criticise literally anyone for being a "divisive nationalist".

I have never been comfortable with the concept of citizenship. The idea that as individual human beings we owe some sense of inherent loyalty to a set of political institutions, or to a flag, or to a nation is one that makes no sense at all. As the infamous political compass put it, you don't choose your country of origin so it is foolish to be proud of it.

But citizenship is important in our world. This idea of commonality, that because you exist and you are a part of our society, that you have a basic expectation of dignity, respect, protection, is vital if progress is to be achieved.

The problem with citizenship is that it is exclusive. Arbitrarily so. It excludes people, who would be far better advocates of the goals of citizenship than most people who are actually citizens. It says that they don't belong. Not really. Because they happened not to be born here, or not born to the right parents. We deny people citizenship because they don't speak our language quite well enough to tick a box, or because they haven't lived here long enough, or because a relative with a funny sounding name did something that was cruel or inhumane.

Citizenship was not invented to exclude; it was invented to empower. One of the best things about EU citizenship was that it sought to say something about who we are as a political community. It said that, when we work together, the plumber from Warsaw is just as important to Britain whether he comes here for a year or a lifetime. That the student from the Czech Republic can be as involved in our public life and our politics as the family that has lived here for countless generations. That, when you strip back the barriers, we are all essentially just people. People with dreams, aspirations, a desire to make the lives of ourselves and those around us better. The respects in which EU citizenship fell short wasn't that it gave our neighbours too many rights; it's that it didn't give enough of our neighbours the dignity and opportunity of a life in our country.

To say that we cannot be citizens of the world is insulting. The fact that we have states and nations does not alter the fact that the plight of the child in Aleppo is just as important, as morally significant, as that of the child in Ardrossan or Aldershot. Our capacities to assist may differ, but that is not something they control and therefore not something by which we should judge them.

It is Theresa May that does not understand the true meaning of citizenship. When people say they are citizens of the world they do not say that their loyalty is to nothing; they say it is to humanity and the pursuit of the truly common good. It is just a fact that I have more in common with many people in other countries than I do with some people who live a five minute walk away. To try to impose special duties on my belonging to Britain as a community is just as offensive as the idea you should impose them on someone who comes here to make a better life. Citizens of the world say that what unites us is our capacity to empathise, and our need to be accepted, protected, and welcomed into the communities in which we live.

The tax avoiders and croney businesses Theresa May criticises don't claim to be "global citizens". Corporations can scarcely be said to be citizens at all, least of all to any nation or state. Where their actions are morally offensive they are so not because it is "disloyal" to Britain but because they disown empathy to the whole of humanity. They reject the spirit of what it means to participate in any society; not just the ones in Britain. It is the individual human beings they affect who are offended against, not the state. Not the nation. It's the people who can't get treatment because there is no money for the cancer ward. It's the people who lose their jobs because a businessman exploits bankruptcy laws to avoid paying his suppliers. It's the family that chooses whether to heat or eat.

None of this requires us to care where they were born, what the colour of their skin is, what language they speak, what is their religion. If citizenship really requires these arbitrary questions of moral concern to divide or communities into the deserving and the undeserving then truly it is preferable to be stateless.

But we're not going to let you win Theresa May. You aren't even turning the clock back to 1950. Because at least then the trajectory of human progress was towards inclusion, openness, and the setting aside of the sheer pettiness of nationalism. An ideology that legitimised the wasting of tens of millions of human lives, held back humanity's potential and made us an altogether inferior civilisation.

Citizenship means global citizenship. And whether you like it or not, we are going to make a success of it.

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...