Sunday, 19 June 2022

Constitutional thoughts from my garden

 Good afternoon and greetings from my garden where, improbably in the West of Scotland in June, it is actually sunny and warm enough to sit in the shade to see a lap top screen.

As you are probably aware Sturgeon once again this week "restarted" the campaign for a second independence referendum with a paper which had as much rationale as one from Cowdenbeath suggesting that, since Manchester United and Liverpool play in red, if Cowdenbeath only started playing in red then they would soon be just as successful in European competition. 

But I'm not here to mock Sturgeon (beyond that) but rather to try to bring together in one place various propositions surrounding this initiative which remain misunderstood by political commentators who, frankly, in many cases should have better informed themselves. I don't think I'm saying anything new, just trying to bring it together in one place.

The easiest way to do this is by asking various questions of myself and then answering them, For the sake of brevity I will only cite sources where absolutely essential.

Question 1, Could Scotland unilaterally declare itself independent? 

Patently not. There are various legal obstacles to this but altogether more practical issues in to the bargain. HMRC and The DWP are UK institutions without access to which we'd have no way of collecting taxes , paying for public sector wages and, even if we had access to resources, paying pensions or benefits. That, rather than dry constitutionalism, is why events in Catalonia were such a farce.

Question 2.  Would that change if we had a unilateral referendum and voted for independence?

No, why would it?

Question 3.  Could the Holyrood Parliament hold a unilateral referendum anyway? .

No. The constitution and the Union are matters reserved to Westminster. Any attempt to do so would be stopped in the Courts but it wouldn't even get to the stage of that as to even introduce such a Bill the Ministerial Code requires the approval of the Law Officers, which would patently not be forthcoming given the law is so clear. Indeed, by the SNP's own admission they haven't even asked them. And does anybody think that if Alex Salmond thought he could just do this then he wouldn't have done so in 2011? 

Question 4. So what is Sturgeon's "Wizard wheeze"?

The Nats think they can get round the problem immediately above by introducing a Bill declared to be expressly "advisory" which might get Law Officer consent. More importantly which might get through the Courts.

Question 5. Would it get through the Courts?

This could only be decided once it was passed. It is well established law that the Courts can interfere in Holyrood's activities as they go on (Whaley v Watson) but the relatively recent decision in Keatings v The Lord Advocate indicates they'd be reluctant to do so. 

Question 6. So it would be up to the UK Government to refer the matter to the Supreme Court?

No. This is easily the most common misconception repeated as late as this morning by Martin Geissler on the BBC. In terms of s.29 of the Scotland Act 1998, legislation passed by the Scottish Parliament outwith its legal powers is not law and can therefor be ignored by private citizens and public and private corporate  bodies. My best theory as to how things would then play out is that in a Council not controlled by the nationalists, the administration would instruct their officials not to comply with any central government instruction to start to organise such a referendum as it is not law and force the Scottish Government to take them to Court. Alternatively any Scottish citizen could bring proceedings to declare the legislation null and void. That's what happened with the named person legislation. Michael Gove has already said on the record on TV that the UK Government themselves would not bring a legal challenge. Something simply ignored as journalists dance a jig to a nationalist tune.

Question 7. Who would win such a litigation?

That depends on the terms of the Act as passed. If it contained an express declaration that "The result of the  vote in this referendum will be of no consequence whatsover.". or they even made that concession in court itself then the Nats might win..  The  latter concession is not as absurd as its sounds . They did of course win the court case to strike down their ban on fracking by advising they hadn't actually banned fracking, they just had said that they had. Alternatively, if the court took the view that they could then look to the purpose of the vote and conclude that it was to advance something itself ultra vires of the Parliament they might well lose. The balance of academic opinion is in the latter camp but it is a balance and nobody has seen the putative legislation.

Question 8. Which court would decide this?

In the first instance the Outer House of the Court of Session and on appeal the Inner House. It could in theory go to the Supreme Court but only if the Party then in the losing position chose to send it there. You could therefor see the SNP Government asking the UK Supreme Court to overrule our highest, purely domestic court but somehow I doubt it would come to that.

Question 9. What happens if the legal challenge succeeds? 

That's the end of the matter. Forever. For it would be established that Holyrood could never hold a referendum, even an "advisory" one, on  a unillateral basis

Question 10. And what happens then?

You'd need to ask the SNP that.

Question 11, What happens if the legal challenge fails?

There is an advisory referendum. We don't turn up on the basis that the SNP would only accept the advice if it was advice they wanted to hear. That was precisely the outcome in 2014.

Question 12. But doesn't that mean they'd win? 

Well yes and no. You see, back when they first suggested holding an advisory referendum, as long ago as the 2007-11 Parliament, this might have been, if allowed, a useful tactic. But we have since had an actual referendum with an unprecedented turnout. A referendum where the nationalists got 1.6M votes while losing. Now that referendum took place in an unprecedented blanket of media coverage. That would not, outwith the pages of The National (circulation 20,000, supposedly), be repeated. And if you made the effort to vote Yes then it was in the belief your vote would trigger actual independence. That belief wouldn't be there either in 2023 (ha ha ha). They most certainly would win this one horse race. They might even, with a huge amount of effort, get a million votes. But,  the day after, all the UK Government would say is "The SNP have spent £20M of public money to establish that fewer people want Scottish Independence now than did in 2014. We could have told them that for nothing."

Question 13. What happens then?

You'd need to ask the SNP that.

Hopefully that answers all the questions addressed to me via twitter. If I've missed anything anybody needs to know please get back to me on twitter as I've blocked replies because I get ridiculously spammed here by people advising me how to cast a spell to get my wife back, Advice I don't need partly because I don't believe in spells and partly because she has not left me. Although, admittedly she has spent a ridiculous amount of time out shopping for doorknobs so, perhaps, who knows.

And with that I think I've earned a beer.



Sunday, 29 May 2022

Why all the fuss?

 In the last ten days the SNP have worked themselves up to more and a more of a lather over events in our Councils following the May 5th Election. In summary, Labour has formed minority administrations across Scotlland in places where they did not have the largest number of councillors and yet no other Party (in urban Scotland, essentially the SNP) had an overall majority.

Now it seems to me this is something they might have anticipated. After all Anas had made it clear we would be forming no coalitions with anybody. If you thought that through for a minute that was obviously going to leave the Tories as kingmakers in a large number of councils and, logically, they would be likely to support Labour administrations if forced to choose from the lesser of two evils. That has indeed transpired.

None of this explains however quite why the SNP have gone just so tonto over this. 

I think there are four explanations.

Firstly, events have made them look stupid, and nobody likes to look stupid. They simply did not see this coming, although five minutes thinking through Anas's pledge of no coalitions should have alerted them to its possibility.

Secondly, in local government in particular, power is money. Committee Conveners, chosen by the administration in power, earn twice as much as ordinary councillors, while Council leaders can earn up to three times as much. So a lot of Nats have lost a lot of money personally as a result of what has happened. That's enough to annoy anybody.

Thirdly, there is the lingering mirage of a second independence  referendum. Referendum's are legislated for by Governments but carried out by councils. I have written elsewhere about the legal controversy that might follow Holyrood legislating for an ultra vires independence referendum. Suffice to say, failing to control a number of our major Councils does not assist the SNP in that context.

But these are not the main reasons the Nats are going ballistic. That is because they have suddenly realised what this might mean for their continued control of Holyrood after the 2026 Election.

In 2007, the SNP had, by one seat, the largest number of MSPs but they had nowhere near an overall majority. Against that background, on any view, Alex Salmond played a political blinder. From his opening salvo "It may not yet be clear who has won this election but it is clear who has lost" to the point of his election as First Minister he proceeded on the basis that this one seat margin entitled the SNP to form a Government. He was, it has to be said, assisted in this by the other major Parties. The Lib Dems decided they wanted to go in to opposition. Labour just kind of gave up after that while the Tories were never more than interested bystanders since nobody would form an administration of which they were part. So, although all four major Parties nominated for the position of First Minister, as their candidates were knocked out, they thereafter abstained and ultimately Salmond then became FM with only 49 of the 129 votes available.

Now, I'm not sure how wise these tactics by the opposition were given subsequent developments but what's done is done. And in the process the SNP believed themselves to have set a precedent that the largest Party was entitled to the position of First Minister. None of this has really mattered since because the Nats did get an absolute majority in 2011 and, counting in their wholly owned subsidiary that is the Scottish Green Party, effectively did the same in 2016 and 2021.

But they have suddenly woken up to the precedent they themselves thought they had set in 2007 is not accepted by the other Parties. So if the SNP and Greens are still the dominant force at Holyrood in 2026, but fail to gain a combined total of 65 MPs, then anything could happen. If the Tories and Libs decide, unlike 2007, that a minority Labour Administration is, as I say earlier,  the better of two evils and vote for a Labour FM then that is what we will have, It is precisely that which has happened in Councils across Scotland since May 5th.

And that is the main reason the Nats are so outraged. Because they are worried.


Monday, 23 May 2022

Not making the trains run on time. Or often even at all.

 On 2nd April past, St Mirren were playing Motherwell away. I wanted to go for a pint with my brother and some other pals before the game, so Andrea dropped me off at Cumbernauld Railway station for me to get a train. The creation of a direct service between Cumbernauld and Motherwell was a grand gesture some years back so that local residents would feel part of North Lanarkshire Council, who have their headquarters in the latter town. But nobody actually uses this service. 

I was conscious that only one other person got on the train with me and no more than two or three got on or off at any station en route. On the way back, seven people initially got on but this was rather undermined by three of them being off duty Scotrail employees. By the time the train reached Cumbernauld only me, the driver and the guard were being carried.

This is entirely normal usage on this service. You could replace it entirely not with a bus but with one or, at "peak" times, possibly two taxis.

So, given the nationwide shortage of train drivers has this been done? Well, no. There is to this day an hourly service from 0617 to 2017. 

Now this first train from Cumbernauld to Motherwell is earlier than any train from Stirling to Glasgow and on return, although still earlier, only by a mere half hour before  that on which you could make a last return to Stirling. 

If we have a shortage of train drivers this is a ludicrous deployment of resources and by far and no means an isolated example. But it is in keeping with the general shambles that has been the nationalisation of Scotrail.

It was announced in December 2019 that Abelio were to lose the Scotrail franchise in March 2022. It takes nine to twelve months to train a train driver, months before that to recruit,  so it was surely have been patently obvious that Abelio had no incentive at all to do that from at least January 2021 onwards? In March 2021 it was announced that Scotrail was to be taken into direct public ownership, so,  at that point at the latest, checking where we were on this became the specific reponsibility of the Scottish Government. Did anybody do that? (Very) apparently not. So when the railways passed in to the hands of the Scottish Government on 1st April 2022 (that was the date, really), only then did it become clear that, although we had enough trains, we did not have enough drivers. And this is not a computer game. Having realised your error, you can't go back to an earlier saved version and start again. So we are stuck with this situation for, it appears, at least a year.

Now there are three things I want to conclude from this. The first, in some ways, is not a directly political one. The senior management of Scotrail are one and the same from those in place before nationalisation. Somebody there must surely have had responsibilty for recruitment and training and been aware, that in the field of train drivers at least, no such activity was being undertaken? Yet what? Did they decide for some bizarre reason to keep their in counsel on what was going on? Did they perhaps tell somebody higher up who failed to act and then forget all about it when the latter did so? It would be inconceivable that you turn up a Tesco to be told you couldn't actually buy anything because they didn't have enough check out operators. Why is that apparently acceptable on the Railways?  Why, frankly, has nobody been sacked?

And then Scotrail, before and after nationalisation, was hardly operating in an impenetrable fog. Their activities, or lack of them, was being monitored by the Scottish Civil Service. What, if anything, were they doing? I was involved in the sale of a relatively small business some years back. Fifty or so employees. As part of a standard disclosure, pre contracting,  the prospective purchasers solicitors sent us a questionnaire. How many staff did we have? What were they all paid? Who were the "key" staff? What age were they? Were we confident they would stay? What turnover of staff did the business have? How easy did they find it to recruit? Lots of others. 

Surely the Scottish Government went through a similar process and, crucially, surely one of their questions would have been, "Are you satisfied you/we will have enough staff to deliver the current service post nationalisation and, if not, what are you doing to address that?" Surely? I have written before here about how the failures in the day to day governance of Scotland go well beyond the current SNP/Green Government. We have failures at an institutional level across the board. In health; education; justice and, not now but now much more so still, in transport. You could parachute in a political administration of an entirely different political complexion and stuff it with a multi-talented team of ministers and yet it would still take them years to sort this out.

Yet the SNP are not innocent in this. They have after all been in power for fifteen years. It is easy just to say this is because they have no real interest in running the devolved administration as they have another priority but while this is, of course,  a partial explanation, it is not the whole picture. They are just hopeless at recruiting themselves. They do of course have competent ministers. I might disagree with their politics but I would concede Kate Forbes, John Swinney, Keith Brown, Sturgeon herself  at least know what they are doing. But they are choosing the rest of the Government from far too shallow a pool within their Parliamentary group. If you look back at the Scottish Labour Party in my lifetime, pretty much all of the major players: John Smith; Gordon Brown; Robin Cook; John Reid; Douglas Alexander etc, , were "assisted" by the leadership, directly or through proxies,  to find a seat. The Tories do the same down south and, in earlier times, up here. George Younger had little connection to Ayr before he became its MP, nor Michael Forsyth to Stirling.

Yet the SNP simply do not do that. I can think of many Nats of my generation working in or around the backrooms, I won't embarrass them by naming them, who would make excellent MSPs and, in time, Ministers. Journalist pals assure me that among Sturgeon's horde of spin doctors, they can identify other, younger, people of undoubted talent, whatever their politics. None of them seem to have been encouraged, let alone assisted, to step up. While the leadership also sat back and watched Andrew Wilson, Joan McAlpine and (albeit temporarily) Mike Russell being effectively deselected in favour of complete numpties. Never mind that a fair bit of talent, not just Joanna Cherry,  are forced to sit about at Westminster kicking their heels by Party rules that make "coming home" (their mentality not mine) almost impossible.

And yet when it comes to the 2021 intake? Almost all have been plucked from local obscurity and delivered into even greater national obscurity. If you look around them, far from spotting a potential future Party Leader, you would struggle to spot a future junior Minister.

And all this comes at a price. Useless bureaucrats and quangocrats sometimes need firm management by Ministers. But that requires the Minister themself to have the ability and intellectual confidence to apply that firm management. It is surely the  comprehensive lack of that at transport which has led to the perfect storm surrounding rail nationalisation. Jenny Gilruth appears to have awaited this morning's armageddon not only by taking the weekend off herself but also by failing to insist that any others did not.do likewise.  When ASLEF said they were happy to talk, anytime,anywhere, they did not qualify that with Monday to Friday, nine till five; four thirty on Fridays. 

Are the rail unions exploiting previous management incompetence? Of course they are. But what are the Scottish Government doing to remedy that?  Here is some unsolicited advice. Settle with the nurses. The Scottish Government announced last year that they would negotiate directly with the Nurses rather than rely on the pay review body. As with so much else with this Government, a good headline for a day. Except that, in common with their general level of competence, as of 22nd April, these negotiations hadn't even started although the pay increase should have been in place by 30th April past. But if you get the nurses to settle for X% you could turn the tables on ASLEF by suggesting "Do you really think you deserve more than the nurses?" And if they do, perhaps apply a bit more robust management. Starting with insisting the times of first and last trains within and between cities are not negotiable, even if  that does mean temporarily suspending some quiet backwater services altogether.

And here is some further unsolicited advice for the SNP. If I wanted to advocate an independent Scotland, surely a good start would be to recruit people capable of competently managing a devolved one? There is no reason the two need be self contradictory. 


Saturday, 7 May 2022

A bad result for everybody

 Well, actually, not a bad result for everybody for the Lib Dems actually had a more or less unconditionally good result. But "A bad result for everybody (except the Liberal Democrats)" lacks impact as a headline. So excuse me.

But for everybody else it was a bad result.

Obviously, for a start, the Tories. They lost lots of votes and lots of seats. Douglas  Ross's flip flopping over Boris Johnson didn't help but the fact he had a UK Party leader that he had to flip flop about was surely the major factor. In Scotland the Tories lost approximately one in four seats they were defending. But, in England, they also wrote about one seat in four they were defending. So while Ross undoubtedly didn't make things any better for the Scottish Tories, it is difficult to argue he made them worse. And it was not all bad news for the Tories. All the profile will be on Glasgow and Edinburgh where not only did they do disastrously but, unfortunately for them, so do most of the Scottish Political Press Corps live. But actually in rural Scotland they still did "alright". In North Ayrshire and Moray they actually gained seats and, as no less a figure than Ruth Davidson pointed out on Twitter, they still have far more seats than they held prior to their annus mirabilus of 2017. So, a bad result but not that bad a result.

And then we have the SNP. These elections were last held in 2017, where the SNP got, by some way, their worst election result between 2015 and today. They did, a very little bit, better today. But it was still their second worst result in that period. They very nearly failed to be the largest Party in Glasgow, where, despite holding every Westminster and Holyrood Parliamentary seats they lost councillors, while they failed to make any progress at all in Edinburgh in terms of seats, even though the Tories departed the field, going from first to.....fifth in a day.. The whole narrative of the SNP is based on them being on an unstoppable march to a second Independence Referendum and "Freeeeedum!" They remain the dominant Party across Scotland, no denying that, but the 2017 Local elections, where the SNP had, by their standards, a terrible result were of course followed by the 2017 General Election, where they did only marginally better. You'll remember that election. It was the one where they lost 21 seats,

And so to my own Party. I'm writing a blog, not acting as a Party spokesman here. You can spin this as a great result but in truth that would be spinning. We came second but were still well off first. We increased  our number of councillors and share of the vote but in each case by very slightly less than the SNP. Unionist non Labour voters, unimpressed by Boris, seem to have simply stayed away from the polls when we were the alternative Unionist choice (although notably not when that was the Lib Dems). And quietly, the results in our former strongholds of North and South Lanarkshire, Renfrewshire (where the Nats were one seat off an absolute majority) and never mind Fife (don't even look!), were disastrous. And still being second in Glasgow despite the rats was disappointing in a city where we still enjoyed an absolute majority as recently as the 2012 elections. Down South they talk of "long Corbyn" as being a handicap but up here we've also got long Dugdale and long Leonard to contend with. It was a step in the right direction on Thursday but a pretty small one. To be fair, both Anas and Jackie recognised that in their post poll interviews.

And then we have, very briefly, Alba and the Scottish Family Party. When these figures are available, it  will be (mildly) interesting to see who got the most votes. That tells you all you need to know.

And then, finally, the Greens. "They did well!" I hear you protest. But did they? Sure they nearly doubled their seats but outwith Glasgow and Edinburgh (where they undoubtedly did do well) there were 1.094 councillors elected across Scotland on Thursday. The Greens got precisely 15. Less than !.5%.of all seats. It seems to me there is a big decision looming for the Greens. Are they a political Party in their own right or are they, as is often alleged, just the gardening wing of the SNP, exploiting the electoral system at Holyrood to secure any representation there at all? You can't avoid the fact that their list votes correlate almost entirely with the difference between SNP votes in the constituencies and the list, so that works for their representatives at Holyrood at least. But having fallen into the arms of a vampiric SNP are they ultimately realising that this means they now can't go out in daylight? We'll see. They are likely to be offered the choice real power and influence by us and the Libs in Glasgow and  Edinburgh as opposed to a few sweeties in exchange for five years unconditional servitude by the SNP. If they choose the latter, by the next elections, somebody should perhaps set up a real Scottish Green Party. I suspect quite a few people would vote for that.

And that's that. Next year, unless Boris or whoever goes early, there will not be a nationwide election (or referendum) in Scotland.

But that doesn't mean there will be no form of election in Scotland during that period. Patrick Grady awaits the judgement of the Commons Standards Committee* If he gets suspended for 14 days there can and will be a recall petition and a by-election in his Glasgow North Constituency. If you look in detail at the Local Government results there that could lead to a very interesting result indeed.


*So does Patricia Gibson but the allegations against her are much less serious

Sunday, 1 May 2022

Some thoughts about Thursday

 It is polling day in the local elections on Thursday 5th May.

Now the last time these elections were held in 2017 produced the worst result for the SNP of any election to date since the tsunami election of 2015. Their 32.4% share was worse even that in the following month's General Election, where they famously lost 21 seats.

So if the Nats only stand still that would be a very bad result for them indeed. 

The assumption is however that the Nats will at least stand still but but I wonder if that is well founded?

It proceeds firstly on the assumption that the Tories will go backwards from what, in 2017 was their best Scottish local government result in living memory. I agree with that starting premise. Both from the point of view of competency and integrity, this is easily the worst Tory Government of my lifetime. They thoroughly deserve to get gubbed. But I find it difficult to see any Tory reverse benefiting the SNP. Scottish Tory voters are inclined to see their Conservative and Unionist affiliation as having equal importance attached to both names. They might be disillusioned with the Coinservative part but they remain faithful to the Unionist bit. So they may take their votes elsewhere but it won't be to the SNP. THis is, I think, good news for the Indpendents (of a different sort) who remain significant players in rural Scotland but also for the Lib Dems and perhaps for Labour. It is not for nothing that Douglas Ross has been running about making the ludicrous claim that Labour is soft on a second independence referendum but I think his cries will fall on deaf ears. That, I accept did have resonance when we were led by the nightmare team of Kezia Dugdale and Jeremy Corbyn. It simply however lacks all credibility when attached to Anas Sarwar and Keir Starmer.

Which leads me to my simpler second point. Labour is in a much more formidable state than we were in 2017. Anas and Jackie have a far higher profile than Kez and..........even I can't remember who. But the Party is also in a much better place UK wise. We might not yet be placed to be first in Scotland but we will certainly be second.

Then there is the fact this is, after all, a local government election. Now that only has a limited resonance outside the cities. North Lanarkshire has been run by us since 2017 and South Lanarkshire by the SNP but, even as someone very interested in Scottish politics I have no awareness of any huge difference between them in service delivery, not least as I am unsure how I would go about finding that out. But it is different in the cities. They have their own media: daily and evening newspapers but also dedicated radio stations and, because of their easier identifiability, greater coverage in the Scotland wide media. To return to North and South Lanarkshire, both are larger local authorities than either Aberdeen or Dundee but they get a fraction of Scotland wide attention. Now this "City" factor will not play out well for the SNP, particularly, in Glasgow. The SNP's stewardship of our largest city has been, on any view, utterly disastrous and, more importantly still, the people of Glasgow know that. If there is any justice this will make a difference on polling day in a city where Labour gaining a mre 5 of the 85 seats  on offer from the SNP restores us to being the largest Party.

"But what about the polls?" I hear you ask. They suggest the SNP will get around 45%. Well here is the interesting thing. In the run up to 2017 there were two polls. Both placed the SNP in the mid forties as opposed to the less than the less than thirty five percent they actually got. Now, the main reason for that is differential turnout. In local government elections who votes is as important as how they vote. Everything says Labour will do well in the English local government elections next week but past experience would tend to suggest that will be as much down to Tory voters withholding their support as to them actually switching to us. Which leads me to my last significant, if tangential point. The census.

The census has been a debacle.  I could write an entire blog about why but,someone already has here. The really interesting thing is where it has particularly failed. It is not, as conspiracist cybernats have been put up to suggest, as a result of "Unionists"  boycotting it, rather the best response has been in Aberdeenshire and The Borders, just about the most unionist areas of Scotland. Actually the poorest response has been in areas that voted Yes or only narrowly No. Now, if nationalists can't be bothered to fill in "their" Government's census what are the odds they'll be keen to turn out to elect "their" Government's councilors?

So, for the first time in eight years, I am looking forward to a Scottish election with some optimism.

Friday, 4 March 2022

Home thoughts (again) from abroad

 Andrea and I am in Venice. 

It is almost exactly eight years since we first went out together and we always mark that anniversary with a trip. Well I say always but a year ago the pandemic made that impossible. The year before that however we went to London, saw The Waitress in the Strand, at her choice (although it was excellent) and Early Mozart at the Cadogan Hall at mine (not perhaps just as excellent). We finished with a big "Songs from the Shows" concert at the Royal Albert Hall, although even on the morning of the performance we had to check it was still on, given the lockdown that was patently coming. 

Anyway, this year things are back to normal, more or less, and Andrea spent days choosing her ideal location ( she loves that kind of thing) and found it in a loft apartment behind the Frari. I would concede it is not bad. The highest form of Scottish praise.

And we've done lots of touristy things. We went to San Marco to see the carnival costumes and then, when Lent arrived, took in lots of churches and walked and walked and  walked. As you inevitably do in Venice, We do have a seven day vaporetto pass but la signora Andrea believes  its full utilisation leaves inadequate opportunity for (thankfully mainly) window shopping. 

And we have, thanks to some degree from recommendations on Twitter, eaten very very well. Albeit not particularly cheaply. It is Venice after all.

However, to get to the point., I love Italy. But Andi likes other countries as well. 

And if we had been able to get away last year she might have insisted we go somewhere else this March. To Prague, or Bratislava or Warsaw or, with no more thought, to Kiev. Wherever the Ryanair flight was cheapest and Booking,com offered the best accommodation.

For Kiev was part of Europe. Alright the currency isn't the Euro but your credit card would still work and you could get cash out of an ATM as readily as if you were in York or Bath or Paris. And I bet, when you wanted to eat, you could, at worst, find an English Language menu and, at best, an English language speaking waiter.

So it is extraordinary that while we have been here, notwithstanding other attractions, we have spent a fair bit of time on our phones checking what is going on in Ukraine. Where English menu restaurants and English speaking waiters are being blown up by Russian speaking tanks.

We thought this was over in this part of the world. It is probably a bit racist to say we were resigned to it happening in other continents, hands up to that on my and many others part, but in Europe we had had the hottest of hot wars and then, for a time, the coldest of cold wars. These were  however understood to be over! For thirty years. During which time Kiev had become an indistinguishable city holiday location from Zagreb. Or indeed Venice. Albeit with fewer Bellinis, undoubtedly a bad thing, and fewer Tintorettos, no bad thing at all IMHO.

It is for that reason I simply cannot see Russia winning this. Occupying Kiev, killing Zelensky and, in six months or so expecting things to return to the "normal" of more than thirty years ago? I just can't see it. Obviously because of the heroic resistance of the Ukranian people but also because of the incomprehension of the west that permanent armed occupation of Ukraine could ever be an accepted final outcome. Even if that were militarily possible, which I very much doubt.

I don't really have a conclusion here except to say that, in this Country, in our Government, one person seems to have been strategically focused on this for months. Always impeccably turned out. Always measured in his tone. Acting, in terms of getting militarily aid to Ukraine, rather than engaging in rambling rhetoric. And sticking with the task. If and when Johnson hopefully falls, we could do far worse than having Ben Wallace as Prime Minister. And hopefully making his first foreign visit to see  President Zelenskyy in Kiev..

Sunday, 20 February 2022

A dead duck

The law in relation to sex and gender is complex involving interaction between the Gender Recognition Act 2004 and the Equality Act 2010.

But the starting point is easy. s.9 of the 2004 Act provides:-

Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman)


Now, note that here it is not someone's "gender" which becomes that of a woman, it is someone's sex. So when the definition of a woman in the 2010 Act at s.212 as "a female of any age" then that definition clearly includes (former) men in possession of a Gender Recognition Certifcate. 

Back to the 2010 Act and to its protected characteristics they include at s.7 

G  Gender reassignment

(1)A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.

(2)A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.

(3)In relation to the protected characteristic of gender reassignment—

(a)a reference to a person who has a particular protected characteristic is a reference to a transsexual person;

(b)

a reference to persons who share a protected characteristic is a reference to transsexual persons.


Now this is to me quite clear. A person with a Gender Recognition Certificate is a woman. So if they seek to access "women only" services and are refused then they are clearly being discriminated against , being possessed of a different  protected characteristic. The exemption for "single sex spaces" under s.26 of the 2010 Act is irrelevant to this because these people are, as a matter of law, women.

I have no great desire to enter the toxic debate around The Gender Recognition Act as, as you will see, that is not my purpose here but, for what it is worth, I have no difficulty with any of this. I am in no personal doubt than transsexual people exist and there is no evidence the 2004 Act itself has been abused so that "men" can access women's spaces,

No, my focus is on the law. Not the law relating to transgender rights, the law relating to the devolved competence of the Scottish Parliament.

At present "a woman" is, as a matter, I restate, of law, someone born a woman or someone possessed of a Gender Recognition Certificate under the 2004 Act. 

But if the Gender Reform (|Scotland) Bill were to become law, "a woman" would become someone born a woman or  someone possessed of a Gender Recognition Certificate under the 2004 Act or  (crucially in this context) someone possessed of such a certificate under the putative future Gender Reform (Scotland) Act 2022. 

Now on any view, for good or ill, that is a change in law to the definition of "a woman".

This is where I get to the point. Last week there was a decision of the Inner House of the Court of Session in the case of For Women Scotland against The Lord Advocate. It decided that The Gender Representation on Public Boards (Scotland) Act 2018 was beyond the competence of the Scottish Parliament. In passing I'd observe that striking down incompetent Holyrood legislation  is by no means the exclusive jurisdiction of the "English" Supreme Court, a point I have made before. The decision had as it's ratio decedendi, a phrase we use daily down Airdrie Sheriff Court,* that in defining a woman as someone who was a woman or lived as a woman, the Scottish Parliament had exceeded its powers, since the definition of a woman was enshrined in the Equality Act and the Equality Act was (by implication) a reserved matter under Schedule 5 of the Scotland Act 1998.

It is a complex and, even for a lawyer, difficult to follow decision but you can cut straight to the chase. The second last paragraph.

"[40] In any event, the definition of woman adopted in the legislation includes those with the protected sex characteristic of women, but only some of those with the protected characteristic of gender reassignment. It qualifies the latter characteristic by protecting only 23 those with that characteristic who are also living as women. The Lord Ordinary stated that the 2018 Act did not redefine “woman” for any other purpose than “to include transgender women as another category” of people who would benefit from the positive measure. Therein lies the rub: “transgender women” is not a category for these purposes; it is not a protected characteristic and for the reasons given, the definition of “woman” adopted in the Act impinges on the nature of protected characteristics which is a reserved matter. Changing the definitions of protected characteristic, even for the purpose of achieving the GRO, is not permitted and in this respect the 2018 Act is outwith legislative competence"

So, if the Gender Recognition Reform (Scotland) Bill seeks to redefine "a woman", as I think it does, then it is beyond the legislative competence of The Scottish Parliament. And since to even introduce it would require the approval of the Law Officers, who must, in terms of paragraph 3(4) of the Ministerial Code sign it off, I suspect we have seen the last of it. If Dorothy Bain thought Lady Dorrian had got For Women Scotland wrong in law she would have been off to the Supreme Court. Noticeably she isn't. 

But don't just take my word for that. The Scottish Government is on the record saying the Bill would be introduced before the end of February, Today they are denying having ever said that. 


* This is my poor attempt at a joke