The extent to which the SNP has been winning the Scottish political debate can be measured not just in the number of MSPs their Parliamentary group now boasts, but also in the extent to which their language has increasingly come to dominate the debate on the constitution.
Talk about positive aspects of the Union, and you’ll inevitably be accused of talking Scotland down, or of being negative about her prospects; the charge that you view Scotland as too wee and too poor to succeed (a phrase only ever used by nationalists) will not be far away.
On the one hand, it’s pure sophistry, scoring a debating point at the same time as avoiding the debate itself. But there can be little doubt that this nationalist critique of pro-Union arguments has to some extent taken root, assisted, it should be said, by the often apocalyptic tone and content of some of Labour’s attacks on the SNP and separatism. It’s become increasingly clear that Scots are no longer receptive to messages along the lines of Labour’s Divorce is an Expensive Business campaign. Partly, that’s because Labour poisoned its own well by assuring Scotland that an SNP government would be a disaster, which it has not been; partly because there’s a disconnect between a nation that’s been growing in self confidence since devolution, and the spendthrift basket case which that type of message implies; and, partly because the essentially negative message looks increasingly unappealing next to the SNP’s positivity.
But that’s not to say that the core of the pro-Union appeal fails to resonate with Scots. The SNP wouldn’t spend so much time trying to change the language around the Union, or triangulating their own offer around the Union’s benefits, if it did not. The bailout of the Scottish banks by the UK government was a tangible paragon which tapped into what many Scots think of the merits of the Union, and there’s every indication that the election campaign changed few minds on the issue. So the challenge for pro-Union advocates is not just to articulate the benefits of the Union, but to find a new vocabulary which allows us to do so without turning Scots off, and places those benefits in the context of a vision of the kind of society we want. In short, we need to start being as clever when talking about the Union as is the SNP.
That’s something I intend to do in an irregular series looking at the Union’s benefits; or, as I’ll refer to them (in an unashamed steal from Niall Ferguson’s Civilization), the Killer Apps.
Tuesday 7 June 2011
Thursday 2 June 2011
Alex Heart Miscarriages of Justice 4 Eva
There’s been so much sound and fury about the Supreme Court’s decision in Fraser v HMA, that it’s easy to forget what the cases in question are actually about. So, what would actually have happened if the FM had had his way, and the Supreme Court had no input on Scottish criminal matters?
(a) Cadder v HMA. The decision of the High Court of Justiciary (sitting as a Court of Appeal) that being interviewed without a solicitor was not a breach of the European Convention would not have been overturned-yet. The case would instead most likely be waiting in the queue at Strasbourg-where it may well stay for a few years. Most jurists agree that the HCJ got it wrong; indeed, it is extremely difficult to square the High Court’s view with the pre-existing Strasbourg decision of Salduz to the effect that “article 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right”. So it is perhaps fair to presume that Strasbourg would have found fault with the decision and declared Scots practice contrary to the Convention. Meanwhile, a significant number of Scots would have continued to be banged up, in contravention of their Convention rights. Oh, and Mr Cadder’s conviction would not actually have been overturned by Strasbourg, and possibly not by our courts, either. Nice!
(b) Fraser v HMA. Bit of background needed here. At the original trial, which concluded in January 2003, the prosecuting Advocate Depute (AD) placed significant weight on the mysterious reappearance of the victim’s engagement ring, wedding ring and eternity ring at her house, around a week after her disappearance. His theory was that the accused had retrieved the rings from his wife’s body and planted them in the house, to make it appear that she had walked away from her life there. The reappearance of the rings was described as the cornerstone of the Crown’s case, and the trial judge went so far as to direct the jury that they could only convict Fraser if they were satisfied that it was he who had planted the rings.
The problem with all this was that, in July 2002, one the PCs involved in the investigation had told a Crown precognition officer that he had noticed the rings in question in the victim’s room a day or two after her disappearance. That information was promptly forgotten about, and was not relayed to either the prosecutors or the defence team during the trial. It was only in 2006, after the appeal was lodged, that it was rediscovered. The PC was re-precognosed, and repeated what he had previously said; a colleague who had been with him on the night in question was also precognosed, and confirmed his version of events. The trial AD was also interviewed, and stated that, had the PC’s evidence came out at trial, the trial would have had to be deserted.
Despite all that-the AD’s view on the significance of the evidence, the common sense view that the new/concealed evidence would have had some bearing on the jury’s consideration of a crucial part of the Crown’s case, and the trial judge’s charge-the HCJ again held that there was nothing wrong with the conviction. It is, I would suggest, a finding with which most lay people (ie potential jurors) would have substantial difficulty. Nonetheless, on Planet Salmond, Mr Fraser would have remained behind bars, possibly with an application to Strasbourg-which, again, would have taken years, and would not have resulted in the conviction having been quashed, even if it had been found that his Convention rights had been infringed. Nice!
So, what sort of Scotland would we have if Messrs Salmond and MacAskill had their way? A Scotland in which two likely breaches of the European Convention were ignored; one in which the victims of those breaches had to wait years to have their appeals from the Scottish legal system heard; and, one in which breaches of the Convention would not actually have resulted in convictions being overturned.
Applying John Rawls’ veil of ignorance, and even taking account of Scottish pride in the “purity” of our legal system, I wonder if most Scots would prefer to live in a Scotland with, or without, the jurisdiction of the Supreme Court? Answers on a postcard, if you please.
(a) Cadder v HMA. The decision of the High Court of Justiciary (sitting as a Court of Appeal) that being interviewed without a solicitor was not a breach of the European Convention would not have been overturned-yet. The case would instead most likely be waiting in the queue at Strasbourg-where it may well stay for a few years. Most jurists agree that the HCJ got it wrong; indeed, it is extremely difficult to square the High Court’s view with the pre-existing Strasbourg decision of Salduz to the effect that “article 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right”. So it is perhaps fair to presume that Strasbourg would have found fault with the decision and declared Scots practice contrary to the Convention. Meanwhile, a significant number of Scots would have continued to be banged up, in contravention of their Convention rights. Oh, and Mr Cadder’s conviction would not actually have been overturned by Strasbourg, and possibly not by our courts, either. Nice!
(b) Fraser v HMA. Bit of background needed here. At the original trial, which concluded in January 2003, the prosecuting Advocate Depute (AD) placed significant weight on the mysterious reappearance of the victim’s engagement ring, wedding ring and eternity ring at her house, around a week after her disappearance. His theory was that the accused had retrieved the rings from his wife’s body and planted them in the house, to make it appear that she had walked away from her life there. The reappearance of the rings was described as the cornerstone of the Crown’s case, and the trial judge went so far as to direct the jury that they could only convict Fraser if they were satisfied that it was he who had planted the rings.
The problem with all this was that, in July 2002, one the PCs involved in the investigation had told a Crown precognition officer that he had noticed the rings in question in the victim’s room a day or two after her disappearance. That information was promptly forgotten about, and was not relayed to either the prosecutors or the defence team during the trial. It was only in 2006, after the appeal was lodged, that it was rediscovered. The PC was re-precognosed, and repeated what he had previously said; a colleague who had been with him on the night in question was also precognosed, and confirmed his version of events. The trial AD was also interviewed, and stated that, had the PC’s evidence came out at trial, the trial would have had to be deserted.
Despite all that-the AD’s view on the significance of the evidence, the common sense view that the new/concealed evidence would have had some bearing on the jury’s consideration of a crucial part of the Crown’s case, and the trial judge’s charge-the HCJ again held that there was nothing wrong with the conviction. It is, I would suggest, a finding with which most lay people (ie potential jurors) would have substantial difficulty. Nonetheless, on Planet Salmond, Mr Fraser would have remained behind bars, possibly with an application to Strasbourg-which, again, would have taken years, and would not have resulted in the conviction having been quashed, even if it had been found that his Convention rights had been infringed. Nice!
So, what sort of Scotland would we have if Messrs Salmond and MacAskill had their way? A Scotland in which two likely breaches of the European Convention were ignored; one in which the victims of those breaches had to wait years to have their appeals from the Scottish legal system heard; and, one in which breaches of the Convention would not actually have resulted in convictions being overturned.
Applying John Rawls’ veil of ignorance, and even taking account of Scottish pride in the “purity” of our legal system, I wonder if most Scots would prefer to live in a Scotland with, or without, the jurisdiction of the Supreme Court? Answers on a postcard, if you please.
Sunday 29 May 2011
It's Not About the Constitution; It's About Human Rights
Noel Edmonds’ much lamented Noel’s HQ offered the celebrity box opener the opportunity to rant about any one of his right wing bug bears. One particular piece of invective slammed the number of laws and regulations “in the name of health and safety or security and the environment”. Edmonds was nicely skewered by Screenwipe’s Charlie Brooker: “gah, yeah, bloody health and safety and security and the environment…I hate them”.
Noel Edmonds probably isn’t compared to Alex Salmond terribly frequently. But the FM’s promised war on the Supreme Court put me in mind of Edmonds’ cavalier attitude to risk avoidance.
The bottom line, it seems to me, is this. Scotland’s highest court has, twice in recent years, fallen short in applying the minimum standards required by the European Convention on Human Rights; the Supreme Court has stepped in to enforce them; and, as a result, has preventing two Scots whose human rights have been trammelled from having to go to Strasbourg, a procedure which would have been lengthy (it’s not unknown for cases to take five years) and, given that the European Court can’t actually overturn the decisions of national courts, potentially unsatisfactory.
The two most obvious reactions would be, you would have thought, concern that Scottish judges seem to be behind the curve on human rights; and, satisfaction that the constitutional arrangements have provided Scots with a relatively quick and effective remedy.
Instead, the First Minister’s only reaction has been to grumble about a British court interfering in Scots law and plot its exclusion. Nothing he has said has a human rights dimension. But then that’s hardly surprising: it is, after all, emanations of Mr Salmond’s government which have been faulted by the Supreme Court, and it’s fairly clear that he doesn’t like to lose. Frankly, I find the sight of a government which has lost out in a court attempting to restrict access to it somewhat sinister, but the FM seems to have got away with it by turning a human rights issue into a constitutional one.
The irony is that, just a few weeks ago, we were being treated to independence lite, with certain shared institutions being retained where appropriate. You might have thought that a constitutional court comprising two of Scotland’s most senior judges, with the remainder coming from our closest legal cousins, and boasting relatively speedy recourse to justice would be a contender for retention. Apparently not.
But I digress. If the First Minister can explain how excluding the Supreme Court will have a beneficial impact on the human rights of Scots, I will listen. But if all he’s interested in the purity of Scots law (which is something of a mongrel system in any event) at the expense of protecting Scots’ fundamental rights, then I’m not interested.
Noel Edmonds probably isn’t compared to Alex Salmond terribly frequently. But the FM’s promised war on the Supreme Court put me in mind of Edmonds’ cavalier attitude to risk avoidance.
The bottom line, it seems to me, is this. Scotland’s highest court has, twice in recent years, fallen short in applying the minimum standards required by the European Convention on Human Rights; the Supreme Court has stepped in to enforce them; and, as a result, has preventing two Scots whose human rights have been trammelled from having to go to Strasbourg, a procedure which would have been lengthy (it’s not unknown for cases to take five years) and, given that the European Court can’t actually overturn the decisions of national courts, potentially unsatisfactory.
The two most obvious reactions would be, you would have thought, concern that Scottish judges seem to be behind the curve on human rights; and, satisfaction that the constitutional arrangements have provided Scots with a relatively quick and effective remedy.
Instead, the First Minister’s only reaction has been to grumble about a British court interfering in Scots law and plot its exclusion. Nothing he has said has a human rights dimension. But then that’s hardly surprising: it is, after all, emanations of Mr Salmond’s government which have been faulted by the Supreme Court, and it’s fairly clear that he doesn’t like to lose. Frankly, I find the sight of a government which has lost out in a court attempting to restrict access to it somewhat sinister, but the FM seems to have got away with it by turning a human rights issue into a constitutional one.
The irony is that, just a few weeks ago, we were being treated to independence lite, with certain shared institutions being retained where appropriate. You might have thought that a constitutional court comprising two of Scotland’s most senior judges, with the remainder coming from our closest legal cousins, and boasting relatively speedy recourse to justice would be a contender for retention. Apparently not.
But I digress. If the First Minister can explain how excluding the Supreme Court will have a beneficial impact on the human rights of Scots, I will listen. But if all he’s interested in the purity of Scots law (which is something of a mongrel system in any event) at the expense of protecting Scots’ fundamental rights, then I’m not interested.
Saturday 28 May 2011
A Funny Kind of Social Democracy
The First Minister’s speech to Parliament was significant for, amongst other things, setting out what he clearly hopes will be the dividing lines between Holyrood and Westminster: his “fair society” against David Cameron’s “big society”; a social democratic contract against right wing ideology. It’s a dichotomy that Scottish Labour cannot let take hold, and nor does it have to.
One of the more skilful aspects of the SNP’s first term was managing to retain a popular perception-at least in the central belt-that it was to the left of Labour, whilst having a programme for government which was, to a large extent, built around reducing the sums available to the public purse, through the council tax freeze and the abolition of various charges (all of which disproportionately helped the well off). The SNP managed to appeal to Scotland’s conscience and to its wallet at the same time, blaming any shortcomings in public services on the “one thousant, three hunnert million” pounds of cuts Westminster was imposing on the Scottish budget. And that was, to some extent, fair enough.
But one wonders whether he will be able to get away with the same trick second time round. This year’s cut in the Scottish grant was, after all, just the start. The next three years will see further real terms cuts, cumulatively costing the Scottish government £2bn in resource spending.
The SNP will doubtless lay every criticism of them at the door of these spending cuts. But that will look less and less credible as the cost of the council tax freeze (actually a tax cut) starts to mount up, to the tune of a further £70m each year. We’re currently in year four of the freeze, so £280m is being spent on the freeze during this financial year. For the next three financial years, that will increase to £350m, £420m and £490m, respectively; a total of £1.26bn. And, by the end of the five year freeze, the annual total will be £630m, while the cumulative total will be £2.45bn. So the SNP actually plan to take more out of the public purse over the next five years than the Tories plan over the next three.
Now, it might be said that the SNP has a mandate for the council tax freeze. Perfectly true. But voters expect political parties to know what they are doing when they make election pledges, and aren’t generally too kind on them when things go wrong-even when they were only doing what the public asked them to in the first place. Besides, the public may well decide that the SNP didn’t spell out the consequences of the freeze: namely, less funding for public services, and a pay freeze (again, in reality a pay cut) of indeterminate length for the public sector.
A programme for government based on tax cuts and pay freezes isn’t social democratic, and it is difficult to see how it can build a fair society. Scots understand that, if you want a fairer society, someone has to pay for it; and asking (well, telling) public sector workers to take a pay freeze doesn’t cut the mustard. If Scottish Labour wants to develop a critique of the SNP, and go some way towards rehabilitating its leftish credentials, then it needs to start reminding people of that. You don't get many chances in the Scottish Parliament to change the public's perception; for my money, this is one of them.
One of the more skilful aspects of the SNP’s first term was managing to retain a popular perception-at least in the central belt-that it was to the left of Labour, whilst having a programme for government which was, to a large extent, built around reducing the sums available to the public purse, through the council tax freeze and the abolition of various charges (all of which disproportionately helped the well off). The SNP managed to appeal to Scotland’s conscience and to its wallet at the same time, blaming any shortcomings in public services on the “one thousant, three hunnert million” pounds of cuts Westminster was imposing on the Scottish budget. And that was, to some extent, fair enough.
But one wonders whether he will be able to get away with the same trick second time round. This year’s cut in the Scottish grant was, after all, just the start. The next three years will see further real terms cuts, cumulatively costing the Scottish government £2bn in resource spending.
The SNP will doubtless lay every criticism of them at the door of these spending cuts. But that will look less and less credible as the cost of the council tax freeze (actually a tax cut) starts to mount up, to the tune of a further £70m each year. We’re currently in year four of the freeze, so £280m is being spent on the freeze during this financial year. For the next three financial years, that will increase to £350m, £420m and £490m, respectively; a total of £1.26bn. And, by the end of the five year freeze, the annual total will be £630m, while the cumulative total will be £2.45bn. So the SNP actually plan to take more out of the public purse over the next five years than the Tories plan over the next three.
Now, it might be said that the SNP has a mandate for the council tax freeze. Perfectly true. But voters expect political parties to know what they are doing when they make election pledges, and aren’t generally too kind on them when things go wrong-even when they were only doing what the public asked them to in the first place. Besides, the public may well decide that the SNP didn’t spell out the consequences of the freeze: namely, less funding for public services, and a pay freeze (again, in reality a pay cut) of indeterminate length for the public sector.
A programme for government based on tax cuts and pay freezes isn’t social democratic, and it is difficult to see how it can build a fair society. Scots understand that, if you want a fairer society, someone has to pay for it; and asking (well, telling) public sector workers to take a pay freeze doesn’t cut the mustard. If Scottish Labour wants to develop a critique of the SNP, and go some way towards rehabilitating its leftish credentials, then it needs to start reminding people of that. You don't get many chances in the Scottish Parliament to change the public's perception; for my money, this is one of them.
Thursday 26 May 2011
How High is the Mountain
If those carrying out the review of Scottish Labour need to bear two facts in mind, they are these: three weeks ago, the SNP notched up 903,000 votes; and, the last time Labour won a Scottish election, in 2003, it still only managed 660,000.
So the difficulties which face Scottish Labour are of the mountainous variety. It is, of course, correct that what might be described as transitory issues with the campaign, the leader and individual policies all played their part in the result on May 5th. However, none of these were particularly a problem relative to the SNP during the 2003 campaign, and Labour's vote was still only marginally higher-about 30,000 votes or so-than it was three weeks ago. It would, in my view, be optimistic to believe that we could look at those transitory issues alone and be in a position to match the SNP in five years time.
But there are crumbs of comfort. Scottish Labour has bettered the SNP's total previously, in 1999, albeit on a turnout almost 10% higher than this year, fired by the first flush of enthusiasm for devolution. It was between that election and its second victory in 2003 that Scottish Labour's vote was reduced from 908,000 to the mid-600,000 level it has remained at since. Some of the 1999 vote doubtless contributed to the temporary SSP surge four years later-but analysis has shown that it was largely the SNP which was hurt by the 94,000 votes the SSP put on in 2003, so by far the larger part of Scottish Labour’s lost 248,000, I would suggest, simply stayed at home.
Similarly, Scottish Labour’s showing at Westminter remains impressive. Last year, just over a million Scots voted for Labour MPs. Drawing on Yougov’s day of poll survey, it would seem that somewhere in the region of 200,000 of them voted SNP three weeks ago. That leaves the best part of 200,000 Labour inclined voters from last year who didn’t turn out-and, in all likelihood, have not voted in a Holyrood election since 1999. The victory in 2003 and the close defeat in 2007 created the illusion that we could get by without these voters; but that illusion has been well and truly shattered by the scale of the SNP's victory.
The lesson, I would suggest, is twofold: Scottish Labour has not given a substantial part of its potential support a reason to turn out at Holyrood elections since 1999; and, the reason they need has to be something more than Labour has offered since. Scottish Labour’s problem with these voters is one of motivation as much as it is one of persuasion. They need to be shown why voting for a Scottish Labour Government is as important as voting for a Labour Government at Westminster; and that requires a positive, inspiring vision, and a narrative of how we get there, instead of the essentially reactive, defensive programme Scottish Labour has presented in recent years.
Lessons do require to be learned regarding what I have termed the transitory issues of the campaign. But, unless Scottish Labour is able to supply some vision, some sense of mission, or something which will equally motivate its base, then any improvements in its organisation, campaign or leadership risk continuing to underplay Labour's support in Scottish elections at a time when it has no margin to do so. If Labour continues to treat the Scottish Parliament as something akin to a super council, having only the capability to manage, not to transform, then we can hardly be surprised if our supporters treat it in the same way.
So the difficulties which face Scottish Labour are of the mountainous variety. It is, of course, correct that what might be described as transitory issues with the campaign, the leader and individual policies all played their part in the result on May 5th. However, none of these were particularly a problem relative to the SNP during the 2003 campaign, and Labour's vote was still only marginally higher-about 30,000 votes or so-than it was three weeks ago. It would, in my view, be optimistic to believe that we could look at those transitory issues alone and be in a position to match the SNP in five years time.
But there are crumbs of comfort. Scottish Labour has bettered the SNP's total previously, in 1999, albeit on a turnout almost 10% higher than this year, fired by the first flush of enthusiasm for devolution. It was between that election and its second victory in 2003 that Scottish Labour's vote was reduced from 908,000 to the mid-600,000 level it has remained at since. Some of the 1999 vote doubtless contributed to the temporary SSP surge four years later-but analysis has shown that it was largely the SNP which was hurt by the 94,000 votes the SSP put on in 2003, so by far the larger part of Scottish Labour’s lost 248,000, I would suggest, simply stayed at home.
Similarly, Scottish Labour’s showing at Westminter remains impressive. Last year, just over a million Scots voted for Labour MPs. Drawing on Yougov’s day of poll survey, it would seem that somewhere in the region of 200,000 of them voted SNP three weeks ago. That leaves the best part of 200,000 Labour inclined voters from last year who didn’t turn out-and, in all likelihood, have not voted in a Holyrood election since 1999. The victory in 2003 and the close defeat in 2007 created the illusion that we could get by without these voters; but that illusion has been well and truly shattered by the scale of the SNP's victory.
The lesson, I would suggest, is twofold: Scottish Labour has not given a substantial part of its potential support a reason to turn out at Holyrood elections since 1999; and, the reason they need has to be something more than Labour has offered since. Scottish Labour’s problem with these voters is one of motivation as much as it is one of persuasion. They need to be shown why voting for a Scottish Labour Government is as important as voting for a Labour Government at Westminster; and that requires a positive, inspiring vision, and a narrative of how we get there, instead of the essentially reactive, defensive programme Scottish Labour has presented in recent years.
Lessons do require to be learned regarding what I have termed the transitory issues of the campaign. But, unless Scottish Labour is able to supply some vision, some sense of mission, or something which will equally motivate its base, then any improvements in its organisation, campaign or leadership risk continuing to underplay Labour's support in Scottish elections at a time when it has no margin to do so. If Labour continues to treat the Scottish Parliament as something akin to a super council, having only the capability to manage, not to transform, then we can hardly be surprised if our supporters treat it in the same way.
Raison d'etre
Three weeks ago, both the Scottish Labour Party and Scotland's status as part of the the United Kingdom took what might fairly be described as a kick in the pants. Without rehearsing the reasons for that here and now, it is clear to my mind that those of us who value both Scottish Labour and the Union require to give them a fairly substantial rethink if they-and we-are to meet the political challenges of the next few years.
Given that I have a few months free before starting something new professionally, I'll doubtless be ruminating on both anyway, and I find that the most productive way of thinking something through is by writing about it. And there seems little point in writing without an audience. So, this blog is both an outlet for those written outpourings, and an attempt to contribute in some way to the endeavours now required.
Given that I have a few months free before starting something new professionally, I'll doubtless be ruminating on both anyway, and I find that the most productive way of thinking something through is by writing about it. And there seems little point in writing without an audience. So, this blog is both an outlet for those written outpourings, and an attempt to contribute in some way to the endeavours now required.
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