Sunday, 9 May 2021

Section 29.

One of the things common to activists of all Parties is a forlorn hope that public engagement with politics during an election period  will continue beyond it. It won't.

There is a fair bit to say nonetheless about where it leaves all Scotland's Parties. That however can wait for another blog. I have five years. Instead I want to look at a far more important and (relatively) imminent realisation for the newly elected SNP Government. All the legal attention so far has been on s.30 of the 1998 Scotland Act but, all along, people should have been looking at s.29. It provides:-

"29(1)  An Act of the Scottish Parliament  is not law so far as any provision of the Act is outside the legislative competence of the Parliament." (my emphasis)

Now, what does that mean? It means what it says. While Holyrood might pass legislation on anything it likes, if that legislation is outwith its legislative competence it is not law.  So not only can it be ignored by private citizens, it also cannot form a legal basis for Ministers to instruct third parties to act in accordance with its provisions. Even if they would be happy to do so. For it is not law.

Practical example  Come March 2023, further to the passage of a Scottish Independence Referendum Act on the basis of the draft Bill the Nats published in March this year, the Constitution Minister writes to the Chief Executive of Aberdeen City Council instructing him or her to locally organise an Independence referendum on 16th September 2023. The Chief Executive simply writes back stating they'll be doing no such thing for the Scottish Independence Referendum Act 2023 is not law.   What happens then? The Scottish Government takes the said Chief Executive to court seeking an order for "specific implement" to instruct them to get on with their instructed task.  But the Courts would support the Chief Executive, for Ministers would be relying, for their instruction to him or her, on something which is not law.

Why am I prompted to point this out? Because it is what Michael Gove obliquely said on "Marr" this morning. Sturgeon's plan is to pass a Bill and then has assumed that the UK Government would use the provisions of s.33 of the Scotland Act to refer the matter to the Supreme Court. Even if she (almost inevitably) lost there, she would at least have (another) grievance. But Gove indicated the UK Government had no intention of taking anybody to court. Why need they? If something is not law it is not law. It is not "law until declared by a court not to be law". It is not law. That is what the actual law expressly says. 

And why would it not be law?

Well that's back to s.29. Subsection 2(b) this time:- [if]

"(b) it relates to reserved matters"

And reserved matters?

For that you need to go to Part 1of Schedule 5 of the 1998 Act.

"1. The following aspects of the constitution are reserved matters, that is—

(a)the Crown, including succession to the Crown and a regency,

(b)the Union of the Kingdoms of Scotland and England,"..........



So that is that. Now there is never a point in ignoring an argument that the other sides lawyers might make in my hypothetical litigation The Scottish Ministers v Aberdeen City Council, so there is one. That would be for Scottish Ministers to argue that the referendum their Government proposed was only advisory. That it wouldn't actually make any difference whatever the result. That argument might even succeed (although I doubt it) but if it does? Why should anybody opposed to independence then bother to take part? After all, we already have had a binding referendum in the sense that both sides agreed to accept the result. Even if one side subsequently didn't. So the Scottish Government being "advised" that some people wanted Scotland to be independent (almost certainly by fewer than the 1.6 million who voted Yes in 2014) would be an exercise in the utmost futility. No matter how many flags (and newspapers) it sold in the process.





Sunday, 2 May 2021

Reasons to be cheerful

Well, on the face of it there is little reason to look forward to next Thursday's election with any great enthusiasm. 

The SNP are undoubtedly going to be the largest Party by a country mile and, assisted by their mini-mes, The Greens, gaming the system, it would appear unlikely that there will not be a majority for asking for a second referendum at Holyrood when all the votes are counted (ludicrously) next Saturday. Quantum valeat.

Anas needed more time but, thanks to the typical behaviour of my own Party since 2007, was not given it. I'll have more to say about that after the election.

But, of course, things are not quite as simple as that.

For, whether we like it or not, the Nats have managed to run this election as a referendum on whether to have a referendum. (Although interestingly that part of their message has been much downplayed externally in their later campaign literature, no matter what their private messaging might be to their activists sent out to deliver these leaflets). 

However if we are having a referendum about a referendum then who wins most seats is less important than who wins most votes.

And that is the first reason to be optimistic.

There is a clear pattern for Scottish opinion polls to over estimate the nationalist vote. In 2016 the last ten polls gave an average vote share for the SNP in the constituency ballot of 50.8%. They actually got 46.5%. A smaller share than predicted in even a single poll. On the list it was the same. Ten poll average, 44.4%, actual 41.7%.  And then look at who came second, the Tories. Not one poll on the constituencies gave them a constituency share beyond the teens, not one: they actually got 22%. In fairness one single list poll gave them 20% (exactly). A high point until....eh....polling day, when they got 22.9%.

So, if that pattern is repeated, the chances of the Nats and their miscellaneous allies or supposed allies crossing the 50% barrier looks pretty small on either ballot.  And in terms of the moral, as opposed, in truth, to the undisputed legal, authority of  the Westminster Parliament just to say no, that will be important.

The second thing giving cause for optimism is turnout. In two senses. Firstly, I suspect it was part of the Nationalist calculation in opting to hold a vote while the pandemic was ongoing that their far larger activist base would enable them to disproportionately mobilise a postal vote from their established supporters. But this does not seem to have worked. The take up of postal votes has been less than all Parties anticipated and there seems no particular pattern as to who has secured one. So a lot of people are going to have to vote on the day. A day my phone predicts to be very cold and very wet; in an election with an apparently forgone conclusion and, lets not forget, still during a pandemic. Now, it may just be my impression but lower turnouts continue, I think, to favour those disproportionately interested in politics, certainly, but also those more able to travel to the polling stations in relative comfort. Neither of these factors assist the SNP.  I would also encourage those glued to Nicola's daily admonitions not to leave the house to listen to her message. 

But there is another way in which turnout it important and that is where I come back to my moral authority point. Any result arising from a very low turnout lacks legitimacy in making wider "demands". It is too easily not exactly forgotten but not exactly utilised either by the "unionist" side that when we won in 2014 the losing side still got 1.7 Million votes. If they perhaps fail to get even 1 million on Thursday (they got just 1,059,898 on a 56% turnout in 2016,)  it might provide evidence to the  flag waving marchers that this demonstrates a country in a state of outraged constitutional fervour but I doubt it would convince any reasonably objective external (or even internal)  observer. Let alone Boris Johnson. 

But there is a a third and final reason to be optimistic. Much attention has focused on the unfunded promises in the SNP manifesto. Free this, that and the other; massive supposed increases in health spending etc. etc. etc. But when little of this is delivered they will at least have their usual excuse. That they were denied the resources to do this by "Westminster", never pointing out "Westminster" was not consulted on whether they were prepared to raise taxes beyond Scotland to fund it. But on another matter they won't have that excuse for a lack of delivery, at least internally. The very raison d'etre of the SNP. Independence.

There is not going to be a section 30. There is not going to be a referendum on a proposition that would survive challenge in the Supreme Court. There are not going to be Mr Salmond's ludicrous "negotiations", for nobody  would be interested in being on the other side of these negotiations. International opinion is not going to be interested, let alone mobilised. The EU is inconceivably going to intervene in the affairs of a non member state, even in the face of 200 people writing a letter to the Guardian. Don't forget that Holyrood voted to have a second referendum in March 2017. Did anything happen? 

Sturgeon has been lucky by events since. The 2017 UK General Election cast doubt on whether Brexit would happen and, when that was conclusively determined in December 2019, before anyone had time to draw breath, the pandemic arrived. 

But, crucially, even during the pandemic, in the face of no external demand at all, solely for the purpose of pacifying their own activists, the SNP leadership felt obliged to maintain that a second vote was imminent, pace Mike Russell and Angus Robertson that it could happen this year! And they then even published a "draft referendum Bill", sought by nobody at all who did not hold an SNP membership card. 

You can run but you can't hide from the deranged rabble that make up much of the SNP rank and file. By no means all of them have yet departed for ALBA, for they believe than can yet seize control of the Party they are currently in. Albeit for no more obvious purpose than it serves to have that under the stewardship of Ms Sturgeon. A reckoning is coming. I think that we can thus be confident that, not thanks to Thursday but to events in its aftermath, this is the last time we'll see Nicola Sturgeon standing for First Minister.  Or the last time she is daft enough to standing on the promise of a referendum.  For you should never make promises you know you can't keep. And by 2026 the issue might not just be a divided unionist vote but a divided nationalist one. And not just on the list. 

P.S. I'm not doing a prediction but seats to watch? Constituencies. Caithness; Perth North and South; Rutherglen; Coatbridge; Kirkcaldy; Motherwell and Wishaw. I predict Labour will take all of these. (For those missing the sarcasm, I don't) 

And on the list?  I think the Libs may do a bit better than expected. And the Greens not quite as well. And, much as it would delight me, I can't see Andy Wightman being elected



Wednesday, 7 April 2021

Douglas Ross is comprehensively wrong.

For a Labour man, I am not that ill disposed towards the Scottish Tories. They are generally much more towards the centre of their Party than those in the wider UK. They were pretty unanimously Remainers. Unlike their Welsh comrades (if that's a word you can use for Tories) they contain no significant anti-devolutionist element. It can at least be argued that on some issues they are more liberal than the SNP and on no issues less so.

If I wouldn't get expelled from my own Party for saying so, I might suggest you could happily vote for them in any constituency where they are the principal challenger to the SNP.

I say that as a preface because I want to go on to say that I think they have got their tactics in this election comprehensively wrong.

This is an election which is about who runs Scotland, and how it is run, over the next five years. What happens in health policy, in education policy, in transport, justice, local government and the various other devolved competencies. But at this time in particular it is principally about how quickly and how well we recover from the Coronavirus pandemic. It is not a referendum about whether we should have a referendum.

Of course it suits the SNP to argue that these actual functions of the Scottish Parliament are secondary considerations for, in respect of past performance of these responsibilities they have little, some might say nothing, to point to as worthwhile achievements. While, in respect of the way forward they have, it appears, if we don't vote for independence, no clue. And to be honest not much even then.  But I have no idea why this focusing on one matter suits the Tories. Not least because it is their position both at Holyrood but more imporantly at Westminster, where power lies on this matter, that irrespective of the outcome on May 6th, there is not going to be another referendum.

And, despite the claims of the SNP that this is "indefensible", it is in fact perfectly defensible.

We had a referendum in 2014. Over two million people voted to remain in the UK. 

No matter what the outcome on May 6th, if more than one half of that number vote for parties, in whatever combination, wishing a re-run, it will be a close call on that half. It will certainly be nowhere near the 1.7 million votes even the losing side got in 2014. And that is that. Even conceding nationalist parties 51% of the vote on a 55% turnout, just about as good as it can possibly get for the nationalists, that is a mandate for nothing beyond exercising the existing powers of the Scottish Parliament. 

But it does give the Nats something to campaign on. In the hope, to be fair, to date, reasonably successful hope, that this obscures their utter failure in actual government. 

But why are the Tories going along with this? Why are they allowing the election to be framed precisely as the nationalists want?

I get that they think it appeals to ultra unionist voters but surely only to really stupid ones. For the self same Tories are, at one and the same time, promising to stop that referendum at Westminster. So it amounts to: "Vote for us and we will stop a referendum at Holyrood but, if we don't succeed in that then we'll stop it anyway. So vote for us."

The Tory message should be the precise opposite. "We are not talking about another referendum at all for it is not going to happen. So let's talk about what should be happening."

And there they have a pitch to make. Not least on tax. It should surely be Tory policy that personal taxes should be no higher in Scotland than in the rest of the UK? Indeed presumably it is, although, as a close follower of politics, I have no recollection of that being said. 

It is surely also  Tory policy that public service delivery in Scotland is, how shall I put this politely, not always a model of efficiency? Despite the larger sums of money spent per capita and the much larger proportion of of our workforce being in the public sector. Never mind those engaged in the significantly publicly funded third sector. Labour shares the criticism on delivery but has no real solutions, wedded as we are to the public service trade unions. The Tories have no such obligation.

On transport. Scotrail is a disaster but there is no evidence to suggest taking it into direct public ownership (SNP and Labour policy) is likely to do much except turn a private sector monopoly disaster into a public sector monopooly one. The solution might credibly come from suggesting that it is not the ownership bit but the monopoly bit that might provide a solution. That would be a stereotypical Tory approach. Instead, silence.

When I was a wee boy, my dad explained the reason so many people (then) voted Tory was because they believed that while Labour Politicians knew how to spend money, Tory Politicians knew how to make money. He dismissed this without disputing that it was a common perception. It is a perception that the Scottish Tories themselves seem to be wilfully spurning. They are the Party of business. Not just big business but small business as well. They would be well placed to argue that, for that very reason, they are best placed to manage the Pandemiuc recovery. Are they doing so? Not that I've heard.

I could go on but the point is this. It is the interests of all unionist Parties to get this election off the diversionary issue of an independence referendum. My Party gets that. So do the Lib Dems. It is time the Tories did as well.


Sunday, 21 March 2021

The most ignorant woman in Scotland

 

Years back, before we all fell out over the referendum, there used to be an event a couple of times a year called a “Twinner”. This was an evening where Scottish political bloggers of different persuasions would meet up for a meal and a drink (alright possibly more than one drink).

It was always a good night. A fair bit of good humoured political debate, a sharing of political intelligence and a lot of outright gossip.

In that context, back in 2012, a well connected Nat told me Alex Salmond was a groper. This was complete news to me. I had always thought of him as a man with a one track mind. But that was not the one track. I would have been as equally surprised if one of the Tories had confided that Ruth Davidson was a Satanist.

Anyway, some months later I was in exclusively Labour company when I thought to pass this juicy tit bit on to someone who had been very close to Jack McConnell’s Administration. Her reply surprised me. “Everybody knows that”.

Now, when you look back at the immediate aftermath of the infamous Daily Record leak that, following a previously secret Scottish Government investigation process, Salmond was to be referred to the Police, the interesting thing is that, within the Scottish political bubble:  politicians; their staff and numerous Scottish political journalists, while many were shocked matters had reached that degree of seriousness, no-one was entirely surprised.

And against that background let’s look at what we know today from what has come out as a result of the Holyrood Committee of Inquiry.

We know that the decision to allow retrospective complaints against former Ministers was a political rather than civil service decision.

We know that it was not retrospective against former civil servants as their Unions would never have agreed to that.

We know that it was however made retrospective in relation to former Ministers without consulting them or even informing them! 

We know it was put in place with unprecedented speed.

We know that this retrospectivity decision happened literally the same week as Sturgeon says she first learnt of the Edinburgh Airport allegations, despite them relating to events some ten years before and acted upon, of sorts, by Angus Robertson at that time.

We know that Sturgeon's husband is Chief Executive of the SNP and it is literally his job to know what's going on within the Party yet, if he is to be believed, he not know anything about the rumours about Salmond as anything other than (I rely on recollection here but I think this is right) "tittle tattle" and even then tittle tattle he saw no reason to pass on to his wife, even as tittle tattle. 

We know that the woman who alleged Salmond had attempted to rape her in Bute House told the senior SNP official Ian McCann of her alleged experience at the time (pre the 2014 referendum) and yet we are expected to believe he did not tell Mr Murrell, his boss, or, if he did, Mr Murrell not tell his wife.

We know that the civil servant who complained (at the time, again prior to the referendum) of what gave rise to the assault with intent to rape charge received an apology, again at the time, from Mr Salmond. 

We know that others were concerned as to the impact on the Yes campaign if her complaint became public. 

And today we also know something else. The two civil servants who made the original complaints gave evidence, quite properly behind closed doors, to the Holyrood Committee on Monday past. They said, and here I quote from the Sunday Times, that (again in 2013/14) concerns about Mr Salmond’s behaviour were an open secret.

Yet we are expected to believe all of this happened without the deputy leader of the SNP and Deputy First Minister, having the faintest sniff of anything. Despite me (me!!!) having been told of it in an Edinburgh Pub years before. Until, apparently, she learned of the Edinburgh Airport incident in November 2017 and, despite complete previous ignorance of the above other matters, Sturgeon felt this, which would by her account have been wholly out of character behaviour by Mr Salmond, and ten years before in to the bargain, might nonetheless be something she should be worrying about.

I have said nothing above which is not in the unchallenged public domain.

It is, and I use this word advisedly, inconceivable that the only person in Scottish politics who did not anticipate that a retrospective process of investigating sexual misconduct by Ministers would probably ensnare Alex Salmond was Nicola Sturgeon. Yet she went ahead anyway. That actually might be to her credit, if she would only admit it. But she can’t. Not because she ever approved of it but because, in pursuit of a bigger prize, she turned a blind eye to it at the time.

As did an awful lot of other people. Nationalism causes you to lose all moral compass. And, having lost it, you can’t get it back.  

Those who fly with the Craws will ultimately get shot with the Craws. Sturgeon will survive next week because a lot of other people who similarly lost their moral compass will rally round. But if she survives May 6th Scotland will no longer continue to be the Country I believe it still is..

 

 

 

Sunday, 14 March 2021

A complete waste of time

James Hamilton QC is the independent adviser to the Scottish Government on the Ministerial code. I pointed out on twitter on Friday that in that capacity he has been investigating Nicola Sturgeon since 13th January 2019. That is undoubtedly true but, on further inquiry, that is not his fault. 

Salmond's Judicial Review was conceded on 8th January 2019. It had nothing to do with any undisclosed meetings Alex Salmond had with Nicola Sturgeon while the process successfully challenged was undergoing. That formed no part of his case. But these undisclosed meetings were revealed by it. It was only when that revelation happened that Sturgeon felt obliged to refer herself. Not when ,at a much earlier stage Sturgeon coughed up officially to the Permanent Secretary. Who interestingly seems then to have replied: "That's fine, you've told me now", as opposed to: "Thank you. You will appreciate this raises very serious issues under the Ministerial Code about which I will need to seek the advice of my superiors". One suspects the word "officially" that I use above might have been key here.

Anyway, to be fair, five days after Salmond's case was conceded (in this context I reject the usage "was won", as that implies a contest that at an earlier stage might have gone either way), Sturgeon apparently placed herself at the mercy of an independent authority.

Except, almost immediately again, she didn't. 

For ten days later, that process was completely shut down.

On the ostensible basis that since Mr Salmond had been charged and appeared in Court, it could not proceed. 

In the course of my investigations for this blog, I have stumbled upon this. https://www.gov.scot/publications/foi-202100139181/

It is the correspondence between John Swinney and Mr Hamilton regarding the referral. In common with the obfuscation the Scottish Government has displayed throughout this matter it is disclosed in random order, sometimes jumping backwards and forwards not just over months but over years, to make it as hard to follow as possible but somewhere in the middle are two nuggets. 

The first is an exchange of emails on 30th January 2019. Published in the wrong order "entirely by accident".

So you have to start with the second. James Hunt, a Civil Servant whose impartial role in this whole matter would bear further attention, writes to Mr Hamilton suggesting that it might not be possible for him to carry things forward for fear of prejudicing the criminal proceedings now commenced against Salmond. He says, crucially, for no matter what you think of senior civil servants, when it comes to matters of this nature, they choose their words carefully 

"The Crown Agent has not provided us with legal advice on the matter. However, nor could he provide us with any reassurance that there would be no risk of prejudice to the fairness of the criminal investigation were the Independent Advisers to proceed with an investigation in terms of the draft remit I previously sent you, and which I attach again to this letter. In light of that view, we have considered whether it might be possible to revise the remit to minimise any possible risk to the criminal investigation. We have concluded that reducing the scope of the remit would unduly restrict the ability of the Independent Advisers to investigate fully the questions of conduct that have been raised. Neither could we be sure that even a restricted remit would not have the potential to interfere with the criminal proceedings in some way. We therefore need to balance the public interest in proceeding with a referral that was broad enough to address fully the concerns that have been raised, with that of ensuring that there is no risk of prejudice to the fairness of the criminal investigation."

Now let us deconstruct this. The Crown Agent has expressed no view on whether Mr Hamilton can proceed.  But the Scottish Government, with or without taking legal advice, have decided he can't. I very much suspect without.

Anyway, back to Mr Hamilton. He responds that he doesn't know anything about the law of Scotland. But in a fatal error he says he will abide with the legal advice of the Scottish Government. Except they do not have such advice. Reading the small print, do not even claim to have it. 

Just to be in no doubt, there is every reason Mr Hamilton could have started his, in private, inquiries, while the prosecution was continuing. He could have spoken to all of the people involved in the process whereby Sturgeon failed to disclose her meetings and then failed to take any action when she finally did. That had nothing whatsover to do with the prosecution. Clearly, he could not have concluded these inquiries because Mr Salmond, on any possible legal advice, would have declined to speak to him while the criminal process was ongoing but, once that had concluded, he could have had a significant head start in reaching his conclusions. But of course he is denied that opportunity.

So, anyway, nothing now happens until Salmond is acquitted. Not an event the Scottish Government anticipated.

So, at least now, Mr Hamilton could get started. Except he couldn't.

You will recollect that Mr Salmond was acquitted on the very day the first lockdown was announced. Anybody would concede that for a period thereafter normal functioning of government was significantly disrupted. But Mr Hamilton's inquiries were a perfect example of something that could have been progressed "working from home". They were to be conducted in private and , indeed, when they did start have so been. But Mr Hamilton could only proceed if, once again, asked to do so. Which he eventually was. But not until the 20th July 2020, some four months after lockdown. Prompted, to his credit, largely by himself. Which brings me to the second nugget. If you read the email whereby Mr Hamilton insists on getting restarted which is on the link above, you will see it is against a background of the permanent government suggesting there is no need for him to be so hasty, or possibly even undertake the task at all. 

And then, in the final email of this thread  Mr Hynd advises that " I am working on putting in place admin and legal support for you." Which is of course something that could have been sorted eighteen months before but has the additional, I am sure entirely inadvertent, consequence that Mr Hamilton, even now, can't get on with his inquiries. And, standing their on the record delay and obfuscation in providing information to the Parliamentary Committee, does anybody think the Scottish Government will have been swift and entirely open in their co-operation with Mr Hamilton? Pull the other one, it's got bells on

So what is the point here? It is that 26 months after he was asked to report, Mr Hamilton has still not done so. And in consequence of that, Mr Hamilton's report,  even if the most damning terms, will have no consequence for Ms Sturgeon. She might be expected to resign, but she won't. She will make the not unreasonable point that this is hardly a practicable step six weeks before an election. How could the SNP possibly carry out a leadership election in that period? And if they don't have a clear candidate for First Minister, how can they possibly fight an election? No, Ms Sturgeon will instead announce,  that her ultimate jury will be the electorate. As has clearly been her strategy throughout. She will peril everything on that. If she wins the election she will announce herself to have been vindicated and if she loses she will have to resign anyway. So, if we want rid of Ms Sturgeon, we are going to have to do it ourselves. 

Quintus Fabius Maximus would be proud of her. 

Sunday, 7 March 2021

An anecdote

 I've been speaking to a few journalists about the Salmond inquiry. I spoke to one this morning and it was that conversation which has prompted this blog.

If you are a lawyer, you assume everybody else knows what you know about the law. Although if you think about it for five minutes, it is as well they do not. Or you'd be out of a job. 

There seems to be a fundamental misunderstanding about how unprecedently the Salmond civil court case proceeded. For a public authority to be faced with an actual commission is pretty unprecedented but for them, only then, to disclose the existence of certain documents critical to their case is, I suspect, entirely unprecedented. But that is what, now by express admission, happened here.

But it became clear that my interlocutor this morning, one of those who has reported this matter in great detail, didn't fully comprehend that. Yet any lawyer of any political conviction and none would readily confirm that. 

So here is a brief explanation of what happened. What is a Commission? It would have started with what is known is a Specification of Documents. A Specification of Documents is an order of court made, on the application of any Party, for the production of documents held by either the opposing Party or by a third Party.  

Such developments are a routine part of many court processes. I will try a brief example. A bog standard tripping claim. Man trips on a pavement pot hole, claims it damaged his knee, caused him to be unfit for work for six months, losing earnings, and sues the Council. This might routinely generate three specifications (if required). Firstly the Pursuer would seek details of any inspection reports regarding the pavement, any record of complaints regarding it's pre accident condition and, if the very existence of a pot hole is denied, any record of repairs between the alleged date of the accident and the raising of proceedings. Secondly, he would seek from an unwilling to be bothered employer details of pre and post accident earnings to enable him to establish his wage loss. Thirdly, if the defender's are suggesting  he is attributing to this fall symptoms that long preceded it, they would seek an order for the production of his GP records. 

Except the first and third of these would almost certainly not happen because the lawyers on either side would know that a court would grant such an order so would lodge all relevant records in advance of being ordered to do so. I'll avoid going down the rabbit hole of the protocol at this point. 

At this point we'll also forget the middle spec (that's what we call this) and move on to the Council having lodged their records but the Pursuer not believing them (in good faith or otherwise) to be complete.

A motion is lodged and granted requiring the production of all records. At this point I'll try to move forward quickly, skipping the voluntary procedure bit., a Commissioner is appointed. Who is a Commissioner? A Commissioner is a lawyer vested by a judge or sheriff with the powers on their behalf to take evidence on oath from a haver. A bit like a deputy sheriff sworn in in a Western. And who is a haver? A haver (pronounced hayver) is a person who might be in possession of relevant documents.

The Party still seeking documents then cites any persons he believes might be in that position to attend a "Commission" and give evidence on oath before the Commissioner as to the extent of their knowledge. A Commission being a deputised Court and false evidence at that point having the same consequence as false evidence to a court.

Now at this point for the sake of brevity I want to skip forward to an actual case  litigated twenty plus years ago by a pal.  His client had sustained an injury on an open stank in a Glasgow public park. The council did not deny that fact but maintained that the first they were aware of the defect was when the claim was lodged, so negligence could not be proved. But the client had an ace. Local gossip alerted him to a woman who claimed to have reported this months before when her son's bike had been damaged at the same point.

So the voluntary procedure having failed to disclose that, a  Commission was aimed at getting that report. In advance of the Commission a request was made to the council for the details of the park inspector so that they could be cited. The response was the inspector no longer worked for the council. Further correspondence as to their home address ended with an offer from the council to concede the claim. So my pal phones his opposing lawyer and is told, off the record, that it transpires the inspector has been invited to resign (this is local government after all) for repeated failures to record or act on complaints. 

So what is the point of this anecdote? 

Well firstly, that junior employees are sometimes useless. And, secondly, more senior management are not necessarily aware of the detail. And, thirdly, generally, when the truth comes out, more senior management do comprehend the idea of being public servants.

But most importantly, even in this most minor of matters, that letting this matter proceed to a Commission where their employee would be destroyed as, at best, useless and at worst, a  liar,  by an even  reasonably competent solicitor (sorry pal), was not something that Glasgow Parks Department were prepared to contemplate. But the Permanent Secretary of the Scottish Government was. Even knowing her employee would be cross examined by some of the best lawyers in Scotland.

Difficult to see that was for any reason except to buy time. Odd call by a politically independent civil servant.

Saturday, 27 February 2021

Anas Sarwar for First Minister

At the end of last month, I wrote this blog, A Simple Question, . It is in some way a companion piece to a blog, Numbers, that I wrote last November. But last November, under Richard Leonard, I was resigned to Labour coming third in May and my blog was predicated on that. I fear it was as a result of my conclusions then however that neither Monica nor Anas thought it appropriate to answer my more recent question. For they thought that my conclusion in November was my preferred answer now. But it wasn't

For now we have Anas and I will be surprised if that doesn't give us a wee bump in the polls. And only a wee bump might get us back to second place.

And I will be surprised if the Salmond affair isn't now finally having some cut through with the general public. We didn't get an answer from the Lord Advocate on Thursday as to whether representations were made by a "third party" before their unprecedented decision to threaten the Parliament with prosecution for contempt of court. We will however get an answer to that when the Lord Advocate returns to give evidence to the committee on Monday. Or a refusal to answer, which of course would be an answer in itself. Mr Salmond's (and the Spectator's) lawyers have written to the committee to say that in informal discussions with the Crown prior to the hearing of the Spectator's case, the Crown advised that only one small part of Mr Salmond's evidence in the Spectator gave them cause for concern. That then was voluntarily removed before the same evidence was sent to the committee. If that is correct then, at some point on Tuesday the Crown, in insisting other parts of the evidence should be removed, changed their stance. If that changed as a result of an intervention by a proxy of the Scottish Government that would be a very serious matter indeed for the principle that the Crown should be politically independent. 

And then on Wednesday we will hear from the First Minister herself. A lot of what was taken from Salmond on Wednesday was irrelevant to the central issue. But the lethal bit was the evidence elicited by Jackie Baillie. Salmond told the committee that when his aide, Geoff Aberdein, met with a very senior aide to Nicola Sturgeon, a political appointee, not a career civil servant, on 9th  March 2018, Mr Aberdein was given the name of one of the female civil servants who had made a formal complaint against Mr Salmond. If that is true, it destroys the argument that there was no political involvement in/knowledge of the process which had ensnared Mr Salmond until 29th March. It raises two further  questions. If this aide knew to tell Mr Aberdein, when did she know herself? And secondly, is it remotely credible that being in possession of this information and willing to share it with Mr Aberdein, in early March (at least),  the aide nonetheless did not share it with Nicola Sturgeon, her boss? An honest answer to that second question on any view would constitute a very serious breach of the ministerial code.

Now, all I'm saying is that this will have some cut through but even "some" might suffice to deny the SNP, even with the Greens, an absolute majority in the post May 6th Parliament. There are clearly reasons they are so desperate to hold onto that date.  So what happens then?

I explained, back in my November blog, the rules in a post election period. In summary, there must be a new (although it can be the incumbent) First Minister elected within 28 days of the election. Otherwise there is another election. And in a vote for First Minister it's a yes/no choice. So the Nats/Greens could not cling on to power unless another Party voted with them or abstained. (In 2007 the Tories and the Lib-Dems abstained). 

Now, I get the difficulty of a "Grand Coalition" for many in the Labour Party but, if we were second, would Labour need a Grand Coalition? If we, hopefully with the Libs, put forward a a candidate for First Minister and vote against any other candidate, as the twenty eight days approached, the Tories would have to make a choice. Do they abstain on an SNP Candidate, leaving the Nats, having won the Holyrood vote, still in power? Do they just keep voting no until there is another election, or do they, through gritted teeth conclude that ultimately, their enemy's enemy is their friend. I know where my money would be. And, after that, the Nats would be stuck in five years opposition unless they were willing to "vote with the Tories" to bring down a Labour Government. And we know that doesn't have a happy provenance. 

So don't rule out at all that Anas Sarwar, having today been elected leader of the Scottish Labour Party will, within three months, be the First Minister of Scotland.

Friday, 19 February 2021

An Anniversary.

I have taken the day off completely because it is my wedding anniversary.

When you are married you inevitably mark the major occasions of the year together. Easter, the Glasgow September Weekend, Christmas, New Year. But you do that alongside the rest of the western world, or at least alongside the rest of the west of Scotland. And you also obviously celebrate each other's birthday and, if you are fortunate enough to have them, your children's birthdays. But these are more or less randomly arrived at dates and even when, in respect of the latter,  if they have to be chosen, chosen out of necessity rather than pre-determined....... choice. 

But your wedding day is different. It is the one day that you have chosen together and the one day that will forever be uniquely yours. 

So, since my wife, Maureen, died in April, this is a date I have particularly dreaded, and I suspect will for the rest of my own allotted span. 

I'll shortly go and lay flowers at her grave, a task I have been putting off. Supposedly, in my own rationalisation, because of the weather but in truth because it will be very difficult. Then, I will probably get very drunk. 

But you can't separate this melancholy from what is happening in the wider world. Maureen died, for reasons totally unrelated to Covid, just fifteen days into the first lockdown. We couldn't have a proper funeral, just a small gathering outside the house who walked behind the hearse directly to the cemetery. None of her brothers, or nephews and nieces, who lived further than Glasgow, could attend. Her best friend of sixty years could not attend, as she was shielding to protect her own husband. We didn't get to go the pub after her body had been received into the church the night before the funeral, as it couldn't be so received anyway. Nor to enjoy a purvey and some inevitably black humour after she had been laid to rest.

But there was more. The last major bereavement I had was when my mother died in 1979. Even between her death and her funeral, I recall I went out campaigning in the forthcoming general election. Not because I was a political fanatic (although I probably was a bit at the time) but because that meant activity, and company, and diversion. And I went back to my work the day after her funeral for that very same reason.

Here I could do none of that. I couldn't go to the court and shake hands and exchange hugs with my close colleagues or accept the condolences of others. I couldn't even speak to my friends and business partners, (not mutually exclusive) except on the phone.

And this has just gone on and on. It was nearly over. I was beginning to think we might finally get our requiem mass and commemorative event, possibly even on the first anniversary of Mo's death. But then of course it started up again.

Earlier in the week, there was a report on Channel 4 news featuring the conservative MP, Sir Charles Walker. He certainly didn't seem to me to be a frothing Coronavirus denier and nothing I have read since suggests he is. But he had a more rational point. At some point we have to consider what the continued lockdown is doing to wider health, particularly but not exclusively mental health. And also what it is doing to the general wellbeing of children.

And we have to apply a cost benefit analysis to continued lockdown. As, I learn from Google, the self same Charles Walker said last Autumn, I paraphrase slightly, no Government can ever entirely abolish death. 

Twenty plus years ago, I was on the Board of the Cumbernauld & Kilsyth Addiction Service. I was mainly engaged by the drug side of its work but I met a lot of people doing sterling work on alcohol addiction. They obviously had hugely disproportionate knowledge of alcohol abuse and addiction, sometimes from tragic direct personal experience. But it became clear over time that many of these people were effectively abolitionists, or at least would have been, had U.S.experience not demonstrated the impossibility of that. But while nobody doubts the negative effect alcohol can have for some you have to set it against the positive effects, in moderation, that it does have for many. That's what has led Government's of all complexions to proceed on the basis of regulation alone, disagreeing only on exactly where the balance of that regulation should lie.

You can't let the rules be set by those with the worst experience. 

So in considering the pace at which the lockdown should be lifted the government has to listen to more than virologists and immunologists. It needs to listen to psychiatrists and paediatricians and simply general physicians of every discipline as well. "But" I hear some protest "there might be new strains, you might get long Covid, you might be someone in a vulnerable category for whom the vaccine isn't effective!" Well yes you might, just as you might be someone for whom an initial half of lager at 16 leads to you drinking a bottle of vodka a day when you are thirty. But you need to calculate that "might" in determining public policy and never confuse "might" with "will".   For the avoidance of doubt, I write that as someone absolutely of the opinion that alcoholism is a disease and not simply a failure of character. 

And Government also has to listen to the public. Once the most vulnerable are all vaccinated, and that appears, thanks to herculean effort, to be possible by the end of March, then if you ask those left whether they'd risk what for the overwhelming majority would be a mild, non threatening illness, which, the odds are, they won't catch anyway, in exchange for fully re-opened schools and colleges,  shops, restaurants, sports stadiums, cinemas, theatres, music venues, hotels, airports, and, yes, pubs and clubs, I suspect you'd get a pretty overwhelming response. I say that, I concede, as someone of 62, who would by then have had the jag, but I am equally certain it would be my view if I was 42, never mind 22.

I finish where I started. Huge numbers have been bereaved during the pandemic and, in truth, their getting over that bereavement has been hugely hampered by continued lock down. They should have a voice here as well.  And I declare an interest.

Sunday, 31 January 2021

A simple question

I wrote a big long version of this earlier but in the end remembered my day to day trade. Questions should be only as long as necessary. So here we go.

We are in the midst of another Scottish Labour leadership contest. It's no secret that I'm for Anas but I want here to ask a difficult question for both candidates to answer. It proceeds I accept on a hypothesis but it is a pretty realistic hypothesis. It might not have to be answered now ("We are in it to win it") but if the polls don't move very substantially it will certainly have to be answered before polling day. Even if that's avoided it certainly would need to be answered after polling day.

Given current polling it is almost inconceivable the SNP would not be the largest Party at Holyrood if there is an election in May but even a modest post Leonard revival might get us second place. Last time, the SNP lost six seats, mainly to the Tories. If they lose six again, (even with the Greens) they would no longer have an absolute majority. So, let us assume that happens. What would Labour do?

Sunday, 10 January 2021

Told you so.

Last January, I wrote a blog pointing out that for the foreseeable future there is not going to be an independence referendum or indeed independence by any other means. Despite its logic being patent, everybody just ignored what was staring them in the face, not least the entirety (then) of the SNP. I sat down tonight to outline why again but experienced a sense of deja vu. So, in the interest of brevity, here is my January blog;https://ianssmart.blogspot.com/2020/01/new-year-new-world.html, my July blog https://ianssmart.blogspot.com/2020/07/much-ado-about-nothing.html, my September blog https://ianssmart.blogspot.com/2020/09/shortest-blog-ever.html and finally my November bloghttps://ianssmart.blogspot.com/2020/11/the-walking-dead.html . Glad to see those who make their living from writing about Scottish politics are finally catching up. 

I'm enjoying as much as anybody the Salmond/Sturgeon fall out. But it is a diversion. The idea that Sturgeon, the best known and popular Scottish politician by a country mile, might fall over whether she told the truth to the Scottish Parliament that first knew of the allegations against Alex Salmond on 29th March as opposed to 2nd April 2018 (remember that pre pandemic decade?) is the most wishful of wishful thinking. Even if a (very) few understand why that lie might be significant. 

But the exact terms of the SNP Manifesto for an election to Holyrood this year, whether in May or October? That is very interesting. 

The current Scottish Parliament was elected in May 2016. Only just over 18 months after the Independence Referendum. But there was already a significant part of the SNP membership demanding another referendum. Indeed the "All Under One Banner" marching organisation was set upon 12th October 2014! That is, if they weren't still insisting, apropos Trump, that the First Referendum had been stolen. Although even they couldn't entirely work out who by.

But, nonetheless, zoomer conspiracy theorists make up a significant section of the SNP rank and file. So they had to be thrown a bone. And that bone was that a vote to leave the EU would be a material change of circumstance justifying the demand for a second vote. This was an easy bone to throw. In May 2016 nobody thought the UK would actually vote to leave the EU. After all, every major Party in the UK was opposed to that. 

But jings, despite Nicola Sturgeon's own enthusiastic campaigning (illogically) for the very Brexit referendum result that would not  justify a second independence referendum, that is what happened, Supported by two in five Scottish voters and, more awkwardly still, by a majority of voters in Wales, also otherwise supposed to be being "dictated to by England". Nonetheless, in March 2017, Nicola did ask for her second referendum and Mrs May told her to go and raffle herself. And what then happened? Nothing happened. 

Fortunately the dilemma this might have presented to the SNP leadership was avoided for the moment by the 2017 election. Not only did the reverse the SNP suffer then cause even the bravest of bravehearts to ponder whether an immediate second referendum was actually a good idea, the UK wide election result cast doubt on whether we would actually leave the EU. That, and the usual boilerplate rhetoric, at periodic conferences, managed to disguise the continued dichotomy that the SNP, in attempting to block Brexit, were attempting to block their own rationale for having a fresh Independence vote.

However, the December 2019 election has changed everything. Not only has it restored momentum to the SNP it has also installed a UK Government with a solid majority on a manifesto expressly saying they will not consent to a second referendum. Oh, and in case you missed it, we then did leave the EU. 

Which would have placed the SNP leadership back in a hole were they not saved in a way they would never have wished by the Coronavirus pandemic. 

For while polling on the question has undoubtedly (in the abstract) moved in their direction, the population is not nearly as animated about imminently asking it again as are the Nationalist Rank and File.

Which brings me back to my question. What will the SNP manifesto say? You see, one suspects the leadership would like to stick with Plan A. "Give us a "mandate" and somehow the Tory Government will change their mind about agreeing to a referendum." And that would be it. But they won't get away with that because their own troops won't let them. They will insist on a plan B.

However there is no viable plan B. I outlined that in my blog last January. So the zoomers will have to be confronted with that before the election. That will be a bloodbath and one from which the SNP leadership might not emerge victorious. For there is a fair part of the SNP who would never be willing to accept that, having had and lost a referendum, the only way forward now is with the consent of the UK to another referendum. Which they are not going to get. But that is the truth of their situation, If the leadership win the internal battle, their manifesto will say they propose to have a referendum which they know they are not going to have. But the only true difference if they lose will be the three words "which they know". The public however would know that this second route presents a period of continuing constitutional (at least) chaos just as we struggle to  recover from Brexit and the pandemic. Is there a majority for this in Scotland despite momentary polling? Let's see. But there are good and rational electoral reasons the SNP leadership are reluctant even to contemplate a plan B.