Tag Archives: #IndyRef

Immediate Thoughts on #IndyRef2

Shortly after The EU Referendum I was with a few like minded Labour friends discussing where we go from here. We had all been part of the No campaigns in the #IndyRef in 2014 and all bore the scars of that 18 month long campaign. We remembered the long days,the abuse we faced, the lack of sleep, the 20+ hour polling day – but also the celebrations afterwards.

In spite of this, we all agreed that, if there was another independence referendum was called, after the 2015 Election; after the Scottish Elections just past; after Brexit; after Theresa May…we’d  vote Yes. Continue reading Immediate Thoughts on #IndyRef2

Advertisements

A Permanent Parliament…

…or a post where I really want you to read the footnotes.


My brother has put a poster up on my wall. I don’t like it, but if I take it down he’s just going to moan. So I probably won’t take it down. But you see, he doesn’t trust me – it’s against his very nature to trust me, so he wants to make sure that I can’t take it down. So, he’s put sticky tape on the poster to attach it to the wall. But he’s not really thought this through. Sure, it seems safer, but really it’s not too much of a barrier – if I want to take the poster off, I just have to take the tape off as well. Simple. Tonight, the House of Commons voted on a similar problem.

It’s the cornerstone of British Constitutionalism that the Westminster Parliament is Sovereign.¹ This means it can make and unmake any law it so chooses. The logical extension of this is that Parliament cannot bind itself. It could make a law, but a future Parliament (or indeed, the same Parliament later on) could then repeal it. Parliament, therefore, cannot permanently limit its own sovereignty – but could temporarily deny it.
The Scotland Bill currently going through Westminster kind of goes against the grain. Section 1 of the Scotland Act 1998 states (rather famously):

There shall be a Scottish Parliament.

The new Scotland Bill has since it was a glint in the draftsman’s eye, has sought to amend the Scotland Act to contain a section 1A, reading:

A Scottish Parliament is recognised as a permanent part of the United Kingdom’s constitutional arrangements.

This, as many pointed out at the time, is a pointless provision that doesn’t do anything. The mere fact that the Scottish Parliament is created is sufficient and all that can protect its existence. Legally, Westminster could repeal the Scotland Act 1998 and remove the Scottish Parliament, but politically, they never ever would. In reality, there is a far more powerful political safeguard than the UK Constitution could ever provide.
If Westminster did, at some point in the future, decide that it wanted to ditch the Scottish Parliament, this clause wouldn’t stop it. All Parliament would have to do is, instead of repealing just Section 1, it would repeal Section 1A then Section 1. It’d be bad and wrong, but the government had the votes to do one, it will have the votes to do the other – it is no barrier at all. Section 1A is sticky tape. But the proposed Section 1A also still exists.

The SNP proposed an amendment to the Scotland Bill (which failed) which would insert the following:

(1A) The Scottish Parliament is a permanent part of the United Kingdom’s constitution.

(1B) Subsection (1) or (1A) may be repealed only if—
(a) the Scottish Parliament has consented to the proposed
repeal, and
(b) a referendum has been held in Scotland on the proposed
repeal and a majority of those voting at the referendum
have consented to it.

It gives some degree of additional protection in that it requires a popular referendum – but it is equally redundant. Say a Government did want to get rid of the Scottish Parliament. The doctrine of Parliamentary Sovereignty means that Parliament can legitimately repeal section 1B, before going on to abolish the Parliament. Instead of having to repeal 1 section (as it would just now), or 2 (if the Scotland Bill as it stands passes), it would have to repeal 3, and again, if the Government has enough support to repeal one section, it will have the support to repeal them all.
In short, the SNP’s amendment was just as in ineffectual as the proposal it sought to replace. Yes, if there were attempts to remove the referendum requirement from the Scotland Act, we would know that the Government were on manoeuvres – but we would know that equally well, and with the same effect, if they attempted to repeal the Parliament itself.²

So the numerous MPs and others that were ‘outraged’ that the government voted against making the Scottish Parliament ‘permanent’ are one of two things. They are either constitutional unaware, or they are attempting to make a mountain out of a very small wormhole (and, let’s be honest, probably succeeding). Either way, even if the Scottish Parliament isn’t legally permanent, the political force protecting it is too great – it won’t be going anywhere.


¹ Yes, it is a British principle. The (im)famous statement that Parliamentary Sovereignty is a “…distinctly English principle which has no counterpart in Scottish Constitutional Law” from MacCormick v Lord Advocate 1953 SC 396 at 411 is obiter, and not an established statement of the law.

² Whether this is possible now is, believe it or not, a (seldom asked) question. In the really important case of  AXA General Insurance v Scottish Ministers and Others [[2011] UKSC 46 Lord Hope (the Scottish Deputy President of the UKSC at the time) said that the Scottish Parliament was a “self-standing democratically elected legislature” [46]. This seems to suggest that, even if the Scottland Act was repealed, the Scottish Parliament could continue because it is “self-standing”. Quite what Lord Hope was thinking when he said this I don’t know – and I’ve bottled out of my only opportunity to ask him so far. I hope one day I will.

The Reality of Politics

…or why I’ve accepted I need to get a hair cut.


Remember 1999 (I don’t I was 6 at the time, but bear with me)? The Scottish Parliament was just about to come into being and it was the dawn of a ‘New Politics’. MSPs wouldn’t face-off against each other, but would sit in a semi-circle. We wouldn’t have the confrontation of the old ways, but we’d be a lot more consensual and work together to get the best deal for Scots. A PR system would mean that all our voices would be heard – SSP, Greens, Scottish Senior Unity Citizens’ Party (seriously – 6th most votes in 2011) would be a presence in the Parliament. Committees would make MSP’s put their party political selves aside and work to ensure the best possible legislation came out of Scotland’s Parliament. It would be the start of a New Politics.
Today, Scotland is possibly the most polarised it’s ever been. While the SSP and Independents have had some limited success (as in the much celebrated 2003 ‘Rainbow Parliament’), in 2011 only 3 seats were not won by one of the 4 main parties. Committees, all agree, have failed. MSP’s have proven unable to set aside their party-politicalness, leading to minimal scrutiny and, in some cases, extremely questionable behaviour. It seems that, really, nothing much has changed.

Remember 2010 (I was here for this one)? For the first time in almost 50 years, a coalition government was a real possibility. The Liberal Democrats, the minorest major party, were a major player. The old dichotomy of Labour and Tory would be broken. Everyone was clambering over themselves to “Agree with Nick”, who was the face of a new way. It would be the start of a New Politics.
Today, we have a Tory Government and are preparing for one that will be led (or made entirely) by Labour. The Liberal Democrats will be lucky to stay above 20 seats. Even Nick Clegg, who has gone from triumphant to traitor, is at serious risk of losing his seat. Even those in his own party are finding it hard to agree with Nick. It seems that, really, nothing much has changed.

Remember 2014 (I’d hope so)? Scotland has gone through the biggest decision of its history. Almost 85% of the country turned out to decide whether Scotland should go independent or stay as part of the UK. Even after the vote, there seemed to be a dawn of something different. The SNP tripled it membership – and it’s new leader led packed out The Hydro with activists. Those newly invigorated folks were going to change the way politics was done. The feeling of the grassroots-led Yes Scotland (which lost the referendum) would set the mould for the future of Scottish Politics. People Power and not Professionalism would be the way from now on. It was the start of a New Politics.
Today, people seem to be shocked that political parties still like to retain some control over their election candidates. It’s as if party leadership wouldn’t want a guy who said that No voters (the people that party needs to reach) were “so stupid [he was] astonished that their cerebral cortex can transmit a signal that sparks respiration. They are probably not capable of ever noticing their error.” or that were “either evil, or quite extraordinarily thick.” They can’t believe that only the party that really represents Scotland would dare try and fight the people’s will. It must be “establishment stooges” or “unionist agents”. It couldn’t be that a political party knows what it needs to do to win elections (which it has done very well since 2011, and looks set to do again) and others just have to bow down to that wisdom – even if they rather wouldn’t. Because, if that was the case, it would mean that, really, nothing much has changed…and it couldn’t be that.

A Vote of Confidence?…

…or a dissent more important than the decision.

This is one of two pieces written on UKSC Judgements handed down on 17th December 2014. The other, on Greater Glasgow Health Board v Doogan (and Another) [2014] UKSC 68 can be found here.


The Supreme Court of the United Kingdom (UKSC) handed down two judgements this morning that had been heard in the last few months. One was the latest instalment in what seems to be the unending sage over whether Prisoners have the right to vote, with an #IndyRef twist thrown in…and gives an interesting glimpse of the thinking of some UKSC Justices.

Moohan (and Another) v The Lord Advocate [2014] UKSC 67

Full Judgement and Press Summary

The first judgement was that in the #IndyRef prisoners case where Mr. Moohan and a fellow inmate wanted the right to vote on 18th September 2014. This case was unusual in that, since the referendum would be held before the judgement would be ordinarily handed down, the UKSC made their overall decision known (the prisoners did not have the right to vote in the referendum) and the reasons would follow. Today we got the reasons.

The appellants relied on 4 key areas of law, both UK and International, to make their case, none of which successfully convinced the majority of the court that they had a right to vote.

EU Law
The prisoners argued that, since the #IndyRef was potentially also a vote on leaving the EU (since iScotland would not necessarily be an EU member state upon independence), the Referendum was illegal under EU Law, which under s.29(2)(d) of the Scotland Act 1998, would make it an illegal Act of the Scottish Parliament.
This view was roundly rejected by the UKSC 7-0, for two reasons. The first was that there was no guarantee of what Yes vote means. The Draft Scottish Independence Bill (as it stood) would have made all UK-citizens born in  Scotland ‘Scottish citizens’, and therefore no longer EU citizens, but this was not yet set in stone. Both sides conceded that negotiations to define the exact terms of Independence would take place if there was a Yes vote. Even if there was no change it would be the bill that removed EU Citizenship and not the Act that determined the Franchise for the Referendum that would be amenable to review. Even then, the court then noted that EU Law does not confer any right to vote in the first place, so the whole argument was fundamentally flawed.

The International Convention on Civil and Political Rights (ICCPR)
It was also argued that, under wider Internatinoal Law, the ICCPR gave every citizen the right to vote in referendums. The United Nations Human Rights Commission have held in the past that this right applied in Referendums too, even those involving self-determination. The UKSC accepted this argument, but still denied the appeal – why? Because the ICCPR, while the UK is a signatory to the treaty, has not bee incorporated into UK Law i.e. at a domestic level nothing has changed. While in the international sphere the UK has a duty to comply with the ICCPR, at UK/Scottish Level, the Scottish Parliament doesn’t have to and no domestic court can stop it breaking the terms. So while it’s a good point, in reality, nothing is changed.

Common Law Right to Vote
It was then argued that, even if statute didn’t allow prisoners to vote, the UK being a developed liberal democracy, the common law afforded everyone (subject to only essential limitations re. age) the vote anyway as a fundamental constitutional principle. Again this argument was universally rejected.
While it was agreed that the right to vote was a fundamental constitutional principle, it was made clear that this principle was derived from Statute, not common law. From the 1st parliaments to now, the franchise had been extended bit-by-bit by Acts of Parliament (as it seems will happen soon in Scotland) and never by judges. The court saw no reason why it should take such a radical step now, though Lord Hodge did say that were parliament to markedly curtail the franchise, then judges may have the ability to prevent it. This is a bold statement to make given the notion of Parliamentary Sovereignty is still the centre of UK jurisprudence. In the infamous case of AXA v Scottish Ministers, Lord Reed did suggest that in the face of legislation that went against the very concept of natural justice the court may step in, but here Hodge is talking about a defending a statutory concept (the franchise) and not a common law or natural law concept (the rule of law, in the case of AXA). Nonetheless, the prisoners remain voteless.

European Convention on Human Rights (ECHR)
And now I come the main argument – and the first put forward in the case, but last discussed by me because there’s a lot more to say. If any argument was going to succeed, it would be that under Article 3 of Protocol 1 (A3P1) of the ECHR the prisoners had a human right to vote. To understand how the court voted on this (5-2 rejecting the argument), it’s best to have a look at the exact wording of the right:

The High Contracting Parties shall hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

The words are explicit in that A3P1 concerns “elections” regarding the “choice of legislature”. It had preciously been held, in the UKSC and in the European Court of Human Rights (ECtHR) that elections to the legislature does not include any other kind of vote. This includes presidential elections (which are to the executive) and all referendums, however important they may be. The case offered in support for both these proposition was Niedźwiedź v Poland (2008) 47 EHRR SE6. This concerned a Presidential election and a referendum on Poland’s joining the EU. The ECtHR said that the A3P1 did not apply in these cases because neither were elections to the legislature. So the line of reasoning the majority of the court followed was (put crudely):

  • A3P1 concerns elections regarding the choice of legislature.
  • It’s scope has not been extended to referendums before.
  • The #IndyRef is a referendum.
  • Therefore, A3P1 does not apply in this case.

But what is key here is the fact that 2 UKSC Judges (Lords Kerr and Wilson) dissented from the majority view, Lord Kerr writing the dissenting judgement. They were not entirely convinced that previous UKSC an ECtHR judgements were entirely on point given the nature of the 2014 Referendum. Previously, when the courts had ruled that A3P1 didn’t apply to referendums, they were referendums on EU accession, changing the voting system and constitutional amendment. Never has the court had to consider a situation where the vote was, quite literally, choosing  the legislature: Westminster or Holyrood.
Lord Kerr (the minx) threw Lord Hodge’s words back at him from a case re. Prisoners’ right to vote in the 2011 AV Referendum, where Hodge had said, “the nature of the referendum at issue” suggested that A3P1 could not be applied in that case. Kerr suggested, therefore, that this meant there could be a referendum when the subject was such that A3P1 did apply – and SURELY this was it. He argued that previously the provision didn’t apply because previous plebiscites were “purely consultative [in] character and there was no legal obligation to organise such a referendum.” He said that there was intergovernmental agreement to implement the result of the #IndyRef and the referendum had a solid legal foundation (The Scottish Independence Referendum Act 2013). This, along with the fact that political parties had taken such hard-and-fast positions on the referendum, meant the test (which he believed had been wrongly applied in the past) was passed and, the ECHR applied and the prisoners should have the vote.
As it ended, however, Lords Kerr and Wilson were in the minority and the prisoners did not have a European Right to a vote.

Conclusion
So, in the end, the reasoning was much as was suspected. But, in some ways, the dissent is far more interesting than the decision. Lord Kerr makes an interesting suggestion that not just common law and natural justice rights can be protected by the court from a tyrannical government, but even those firmly and solely based in statute, such as the right to vote. This is a brand new idea (and one I’m not entirely certain of), and it will be interesting to see how this develops in the future (if at all). But the big thing was that, for the first time in it’s history, it was seriously reasoned that the ECHR may, in some very restricted circumstances, give prisoners the right to vote, not only in parliamentary elections (which we know it does) but in referendums as well. Whether this point of view is ever adopted at a European Level, we’ll have to wait till the next #IndyRef.

If You Play With Fire…

…or why I feel kinda sorry for Nicola Sturgeon.


It has become generally accepted that while Yes lost the #IndyRef, in the end the SNP won. They’ve had a Massive boost in membership, a new leader to replace an increasingly divisive one and a promise of a stronger Scottish Parliament. On top of that, Labour are in turmoil and in the middle of a long drawn-out Leadership contest. What can possibly go wrong? Well…

This video shows three Renfrewshire SNP councillors burning a copy of the Smith Commission Report, which is barely a week old. When the report was released, the SNP were quick to denounce it as a betrayal to the almighty Vow – in a “People who support Independence don’t support not-Independence” shock. That’s to be expected and it would be absolutely astounding if Nicola Sturgeon stood up and said, “Aye, fair enough. We’ll pack it in now”.
But this is different. This isn’t just asking why further powers weren’t devolved, or denouncing the Commission as a stitch-up. This video shows a group of elected representatives burning a publication that is highly political in a (still) highly-charged situation. “The 45” still wear their defeat with pride. The word ‘traitor’ is still banded about freely. Saltires still wave defiantly in front-gardens (although, I regret to report, Duggy Dug seems to have gone to stay in a farm in the country).

When Nicola Sturgeon began her tenure as First Minister, she said that she wanted to unite Scotland. Last week she unveiled a fairly impressive and ambitious Programme for Government over the next 12/18 months. This will take work and supreme leadership, and as leader of the largest political party in Scotland (and 3rd biggest in the UK), she should have the power behind her to do it.
Except, in the 2 and a bit months since the 18th September, SNP membership is up c.250%…and there is only one reason those people can have joined the country’s largest pro-independence party at this particular time, and it ain’t Land Reform. Most of those members want another referendum. forget the Edinburgh Agreement, that’s void now. It’s a fact that amuses me, but 6% of people who voted Yes in September signed a petition demanding a “re-vote” because they thought the referendum was rigged. I am willing to bet that most of these people are now members of the SNP.
We can see that the SNP’s focus hasn’t moved away from Independence – SNPFest 2014 at The Hydro talked about little else. There is a very clear reason for that: the SNP is now a ‘fundamentalist’ party. The pendulum between the Salmond gradualists (who seek to achieve independence over a longer-term by slowly gaining more and more power from Westminster) and the fundamentalists (who adopt a much more ‘Indy-or-Die’ approach) has swung firmly in favour of the latter in terms of numbers. To even suggest that the referendum not be run again, or that independence won’t happen soon is heresy. There is a reason Stewart Hosie addressed the masses and not Keith Brown.

Which all, of course, brings us back to the binder-burning councillors. I am not outraged at what they did. I am not appalled, or disgusted, or shocked. I’m just stupefied. Four Elected representatives of Scotland’s governing party had the following though process and believed it to be perfectly normal:

1) I could burn a copy of the Smith Report outside Council HQ.
2) That would be a good idea.
3) I could put YesScotland and SNP stuff around it.
4) I’ll need to get someone to film it though. Put it on YouTube.
5) Where’s the lighter?
6) Nothing can possibly go wrong.

It’s incredibly obvious what Nicola Sturgeon should do with the people involved. They should be ‘sacked’ from the party. They should be denounced as silly people who do not represent the official views of the SNP and their actions are not condoned. Sturgeon should do that – but could she? These councillors (who are, worryingly, pre-#Indyref members) probably represent the views of many, many members of the party. Can a new leader risk slapping down this fundamentalist faction so harshly so soon? This, not government policy, could be the first big decision of her leadership.

Personally, I think she should go for it and stamp her authority all over the party: Those who make trouble, pull stunts and denounce everyone who disagrees with the SNP line as traitors are not welcome. There wouldn’t be a rebellion, there’d be a realisation! What a signal that would be, and it would prevent so many problems down the line.  Remember the UKIP guy who said that silly thingno the other oneNO, the other oneNO THE OTHER OTHER ONE! Just as UKIP have become the “We Could Never Say This in Any Other Party” Party in England, the SNP risk becoming the “FREEDOOOOM” Party – an image they had to do so much to successfully shake off. If Nicola stamps down now, there is a chance people will listen and she will regain the momentum. If she hesitates, the pendulum will swing too far to reclaim, and the fundamentalists may well have their time in power.


I am pleased to report that for the first time I came up with 2 potential titles for a blog post that I was happy with. In the end, I went the one with more angles, but I reserve the right to switch it to “The Smith Commission Heats Up…” at any time.

Goodbye and Thank You Johann…

…or why Scottish Labour must be both ‘Scottish’ and ‘Labour’.


This weekend, Johann Lamont announced she will be standing down as leader of the Labour Party in Scotland. Before I say anything else, as a member I want the thank Johann for everything she did while leading the party. She held the party together after what was a (well-deserved) routing in 2011 and then led the party through the 2012 local election, holding Glasgow, and then (since everyone seems to have forgotten) WON a referendum on Scottish Independence. There were moments I cringed, and moments when speeches could have been better phrased. Yet, week after week, she consistently held her own against Alex Salmond at FMQs.

For what you did, I thank you.

But looking to the future, there are two major challenge Scottish Labour faces. The first is that is can not longer be afraid to be Scottish Labour. The second is that it must be allowed to be Scottish Labour.
It seems to me that recently, at both UK and Scottish levels, the Labour Party has been afraid to shout about what we stand for as a party, and instead watered it down to what we think people want to hear. At a UK level, our recent attempts to “tackle immigration” are a great example of this. A Labour government shouldn’t seek to tackle immigration, it should welcome the social, economic and poltical advantages immigration brings. but we don’t because we are concered about those who have “concerns about immigration”. These people fall into 2 categories.
The first are people who are genuinely concerned about the strain additional demand will place on out schools, hospitals and infrastructure. The Labour answer to these concerns is to say we will invest more in public services, and show how immigration is still a net positive to the country. The second are people who’s problem is with immigrants. We can’t help them, but still act as if we can see their point…I have to admit I can’t. We have to be brave and honest enough to say so.
The same issue exists in Scotland too. Whoever is elected leader in December cannot be afraid to challenge the assumptions we have allowed the SNP to establish. We are right to oppose unfunded universal free-prescriptions. Prescriptions for those most in need (the poorest, the oldest, the youngest, the chronicly ill, the disabled, the unemployed) were free before the SNP decided to make them free for the middle class and the rich. But we forget to say that’s because it costs the NHS c.£60million a year that could be spent on medical treatments and staff. Without that last bit we sound like cost-cutters and not a party that wants proper funding of public services.

And to do this, Scottish Labour must be given room to be SCOTTISH Labour. We may have won the IndyRef, but Scottish politics has changed forever. For the next leader to address this dynamic, they need to be able to make decisions (1) for the whole party in Scotland – I’m looking at you MPs; and (2) without the fear of a UK Labour veto.
I don’t think this means we need an “Independent Labour Party”, but we do need to mimic the current state of devolution within it. Policy making is near-enough separate, but leadership are still a matter of the UK party. That’s why the Scottish General Secrety can be sacked without the Scottish Leader being told: the UK level still controls structures. This clearly can’t go on.
In that brief time Wendy Alexander was leader, she famously challenged Alex Salmond to “bring it on” and hold the referendum before 2011.  Slowly but surely, this stance drifted backwards, and I would not be surprised if it was a UK ‘suggestion’ to drift. If rumours about Bedroom-Tax related orders are true, it only confirms that we need to be trusted to make the right call for Scotland, even if it makes the UK-Wide party a bit more uncomfortable. Part of this, of course, is that the leader of Scottish Labour has to be – in practice and not just name – the leader of the WHOLE of Scottish Labour (again, looking at you MPs).

Lamont’s leadership of Scottish Labour was successful one. In a time where we didn’t have a constitutional argument in the way, I am sure that would have been electorally successful too. But alas, circumstances, and it seems ‘comrades’, conspired against a woman who is committed to improving the lives  of the people she represents. I hope our next leader, whoever it is, is just as committed to those people, and much more ready to shout from the rooftops and soapboxes that we are Scottish Labour.


This post also appears on Labour Hame, a grass-roots run and organised Scottish Labour site. With thanks to Andy Todd for letting me use his lovely ‘graph’ in the banner.

Other people who have commented on Johann’s resignation and replacement include:
Duncan Hothersall:- Three things
 – 
Ian Smart:- Desperate Days
 – Jackson Carlaw MSP:- Send for Murphy