6 October 2016

Legally, can Holyrood "block" Brexit?

"100 days on from the referendum and with up to six months until the triggering of Article 50 it is time the government got serious and put our economic interests and membership of the single market at the front of their negotiating plans. With a clear majority in the Scottish Parliament for retaining membership of the single market - expressed as recently as last week - it is difficult to‎ envisage the circumstances in which the Scottish Parliament would give consent to any legislation that did not guarantee this."

So said Nicola Sturgeon's Bexit minister, Mike Russell. But what did he mean? What precisely can and can't Holyrood do, in resisting the many-layered legal complexities of Brexit? Several souls have asked me about this other the last day or two. So here's the lightweight primer on the law. Brace yourself. It gets a bit tricky.

First thing's first: Holyrood has no legal power to veto or block Brexit. Start with the basics. Under Schedule 5 of the Scotland Act, foreign affairs – including Britain’s relations with the EU – are matters reserved to Westminster and Whitehall. Under section 29 of the legislation, Holyrood is prohibited from passing its own laws concerning nuclear weapons, defence, and so on. Legally, these are Westminster's purview. And because they are Westminster's purview, MPs and the UK government, don't need the Scottish Parliament's permission to alter the law on reserved matters. 

But there are some kinds of Westminster legislation which do require the nod from MSPs. This isn't a matter of strict law - but of constitutional convention. This convention was set out in section two of the 2016 Scotland Act. "It is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament," it said. As I pointed out at the time, you can feel the caveats in the statutory language: "normally", "recognised." Whitehall's clear view is that this section doesn't limit the sovereignty of the London parliament to make or unmake any law whatever, irrespective of Holyrood's complaints.  

But this statutory recognition includes only part of the convention. The UK government has consistently recognised that Holyrood's consent is necessary, if Westminster wants to change the legislative competence of the parliament, or to add or subtract from the executive competence of Scottish ministers. One good example of that was the 2016 Act itself. David Mundell recognised that the Edinburgh parliament had the right to refuse the new powers, and a vote was taken. 

This convention proves some - very limited - constitutional security for Holyrood from the prospect of Westminster abusing its sovereignty to reverse its decisions in devolved areas. But it doesn't apply beyond that. Holyrood’s consent clearly is not necessary to activate Article 50. Only politics can prevent the hard Brexiters in the Tory government from dragging us out of the single market.

Through some creative  lawyering, you might just be able to cobble together an argument and get a case up on its feet.  In the High Court in Belfast, litigants are attempting precisely this. But their chances of victory are remote. The court case is really about boosting the political salience of the situation in Northern Ireland. As someone tweeted as me, in response to my Times column this morning, if Scotland counts for "nothing" in Brexit Britain, how much the worse for Ulster and its people? 

So that's the bottom line. Holyrood's consent is only needed if Westminster wants to legislate about devolved matters. But even then -- failure to give consent can be overriden by the exercise of parliamentary sovereignty. So what, then, can Mike Russell have meant when he said Holyrood might refuse consent for Mrs May's Great Repeal Bill? And what effect would refusing consent have anyway?

You've got to recognise that EU law is everywhere in UK law, and it isn't neatly packaged in one big book of rules, embossed in gold and bound in red buckram, easily tossed onto a bonfire. EU norms are enshrined in a dizzying array of documents, from the European Communities Act 1972, to ordinary legislation, to regulations, to the Scotland Act itself. In terms of UK constitutional law, some areas principally regulated by EU law are devolved, others not. The UK Equality Act 2010, for example, gives effect to European non-discrimination directives -- and is for the main part, a reserved matter. Holyrood can't amend or repeal it. 

Fishing, on the other hand, is only very partially reserved to the London parliament. But to ensure Scottish Parliamentarians didn't go voyaging on stranger tides, in 1998, MPs decided to constrain the new parliament's powers. Section 29 of the Scotland Act requires all Scottish legislation comply with the rights set out in the European Convention on Human Rights -- and EU law too. That's why, for example, the Scottish Whisky Association were able to take the SNP's minimum alcohol pricing legislation to court. The liquor manufacturers argued that the legislation interfered, unlawfully, with the European single market, by discriminating against producers able to pump out plonk on the cheap, by requiring them to sell their products at an inflated cost.  The requirement to tender for ferry services is another -- controversial  -- example of EU law at work.

The critical point is -- the Great Repeal Bill seems likely to stretch across reserved and devolved issues simultaneously. Some parts of it will require the Scottish Parliament's consent, others not. But as Professor Colm O'Cinneide, from UCL recognised, the legislative consent motion before Holyrood "may have to be drafted in broad terms, and of course will need to cover EU law provisions" written into Scotland's devolution settlement.

Which is where Mike Russell's "block" comes back in. Under the Scotland Act, Holyrood must obey EU laws, on fishing, agriculture, non-discrimination. If the PM wants to strip out those rules or to change Holyrood’s powers – she will need to secure the consent of a majority of MSPs. As things stand, it is perfectly conceivable that Scottish politicians will decide to defy Westminster. Mrs May would then have to decide whether to ignore their objections, riding roughshod over constitutional principles -- or to respect them, and leave Holyrood subject to EU law, but paradoxically, outside the European Union.

It isn’t necessarily obvious, however, why our parliamentarians would refuse their consent. It isn’t the Scotland Act restrictions which guarantees the rights of Scots to move freely, and to work and resettle across Europe – but the UK’s dying EU membership. Many EU rules are, in principle, about sharing burdens as well as benefits, while keeping an eye out for backsliders, free riders and chancers. Every state, for example, is likely to be inclined to discriminate in favour of its domestic industries in the economy, and to cultivate a more unfree market. EU single market rules seek to eliminate this across the whole bloc. 

But why keep the rules, when you aren’t part of the club? Unless the requirement to adhere to EU law was stripped out of the Scotland Act - we'd be looking at carrying their burdens, without seeing their benefits. An invidious position, no? There are a few more and less convincing answers to this objection. The symbolism of such a vote in Holyrood is obviously significant. Most folk won't follow the legal niceties of what the consent procedure actually represents. It will, inevitably, be seen in simpler, more political terms. Does Holyrood capitulate or not in the teeth of the Tories' haughty insistence that Brexit is their baby, and it will be midwived into monstrous shape only on their terms? That is how it is likely to be seen - presented - and understood by many.

For the SNP, retaining EU law might also represent a statement of intent about an independent Scotland’s future inside the Union. Why radically diverge from EU rules, when you want to join the club, sooner rather than later? Shadowing (some) of the regulation could be seen as a significant gesture of this kind. But you could do this, without making it a legal requirement to legislate in a way which is compatible with EU principles. And let's be honest: eliminating EU regulation would create opportunities as well as challenges, to take policy positions prohibited by single market rules.  

Alan Page, Professor of Public Law at the University of Dundee, has identified another - slightly trickier - issue with the Great Repeal wheeze, in his short paper for the Holyrood committee scrutinising Brexit. The key point is identified in paragraph 13 of Professor Page's note.  He is concerned about the possibility of UK government ministers disapplying and altering EU law concerning devolved matters in Scotland, without any reference Westminster, or to the Edinburgh government or Parliament. Law is made in many ways. One important source is what is called "subordinate legislation" - generally powers exercised by ministers in the government, often with lighter scrutiny from MPs than full-blown Act of Parliament. Mrs May's government seems likely to use this tool to prune the EU law which applies in Britain. But there's a problem. Professor Page:

"At the moment there is no requirement of the Scottish Parliament’s consent to UK subordinate legislation transposing EU obligations in the devolved areas; nor is the Parliament routinely informed about such legislation. Were obligations to be transposed by UK Act of Parliament the Scottish Parliament’s consent would be required, but if they are transposed by subordinate legislation its consent is not required. The situation could thus arise in which the UK legislated extensively in areas devolved to Scotland without seeking the consent of the Scottish Parliament as there would be no requirement of its consent in relation to subordinate legislation altering the effects of EU law in the devolved areas. In my view, this represents a significant potential gap in the framework of Scottish parliamentary control over UK law making in the devolved areas, which the Scottish Parliament should be alert to the need to close should UK Ministers be given the power to revise EU law in the devolved areas."

If Mrs May's Great Repeal Bill laid the foundations for this kind of arbitrary mode of decision making, without reference to devolved institutions, the Scottish Government would understandably hit the roof, and refuse to give their blessing to her Bill. They would be right to do so. From a political perspective, all of this is pungent. Legally, however, Holyrood can really only stage a weak, rear-guard action on the Brexit fallout. So long as we remain tethered to the UK government, we're tethered to its fate, outside of the European Union. Despite Mr Russell’s fighting talk, the legal scope for Holyrood to make Brexit mischief remains very limited. As for the political opportunities? Well: they're a different matter entirely.

18 September 2016

19th September, 2014

On the 19th of September 2014, I wrote a piece entitled “under the low sky.” It is an evocative line – stolen – from a book I read years ago about the experience of living in the Netherlands, where the horizon presses down on you, without the thrown elbows of mountains to keep it at bay. But the phrase seemed apt to the slate-grey Glasgow afternoon which the indyref left in its wake, and the half-throttled sense of sadness I felt, as the long day wore on, accumulating sorrows. 

Unlike many folk, I felt no real hope or anticipation that the Yes campaign would carry the day two years ago.  Defeat, even a narrow defeat, seemed almost inevitable. When Clackmannanshire declared, the night was already dead for me. I know some folk waited and waited up, in hope and expectation, but Don Quixote’s horse had already been shot out from under him. Sancho Panza was floating, face down, in the Clyde. Being right wasn’t much of an emotional salve, it transpired. 

As the Orcadians said No, I escaped from Pacific Quay into the cold but fresher night air, as the wind chased down the currents of the river and the BBC building behind me fizzed and sweltered and thronged. Big Kevin McKenna, built like a Renaissance cardinal, was sucking a sanguine cigarette outside. We talked, briefly, only to be interrupted by the jubilant figure of Margaret Curran. I remember the Labour MP did a kind of jinking danse macabre as the majority No vote accumulated, a sort of hirpling Scottische. You shouldn’t begrudge your opponents their successes, I suppose. But that little jig. I’ll never, ever – quite – be able to forgive Margaret Curran for her little jig. 

(Though I suppose, as the saying goes, she’s not jigging noo. “Even victors are by victories undone.” In the aftermath of the 2015 general election, I happened to bump into the former Scottish Labour MP in a pub in Oxford during a flying visit. Sauntering past her as she walked in to the Lamb and Flag, I was stunned to hear myself say “You’re Margaret Curran. Tell me. How are you bearing up?” As luck would have it, Curran clearly had no idea who I was, or any clue about my separatist politics. I left her with a kind word, undisabused, as an apparently sympathetic Scotsman, safely south of the wall.)

But back in Pacific Quay, in the early hours of the 19th of September 2014, Margaret was still jigging. I decided to leave before the emotion of the moment overtook me, and I said something I might come to regret. Abandoning all hope of securing a friendly cab out of there, I made my escape on foot, marching out along the banks of the river, an unsteady, half-gralloched figure, lurching between sorrow, rage and resignation. 

My company for the first part of this journey – perhaps curiously – was Adam Tomkins. The Glasgow law professor was cutting his way along from the BBC towards Better Together’s victory party in the Hilton, where the corks were already popping.  Adam behaved with all the kindliness and consideration you could expect from a political opponent at their moment of victory – much more, really. The balance of the way home I spent alone, eyes stinging, bitter, sad. I turned in, and slept a dull sleep without dreams. It is only election night I’ve been unable to see through. 

I’ve never known at atmosphere like the one I woke up to in Glasgow the next day. The result hung over everything. It leached all the social colour from the day. The weather provided an obligingly grim backdrop. The gloom was general. I live in the south side of the city, Nicola Sturgeon’s constituency. The Yes vote prevailed here - one of the few reassuring things about the immediate aftermath of the poll. The national picture may have been disappointing, but amid everything else, at least you read your own community correctly. 

I sat in a pub. I watched Alex Salmond resign before a dumb room, eyes all fixed on the telly. A man ordered another double shot of strong liquor. A fourth pint suddenly seemed wise.  And for those drinkers who quietly concluded that independence wasn’t a sure bet, who voted no? It was a scene of victory without jubilation. It must have been an odd experience. An unseen hand kept squeezing away at my throat. I made rash promises to myself that I’d never write about Scottish politics again. That I was done with it all. I might take up something wholesome like gardening instead, or skydiving. Half an hour later, I’d written this blog. It is often a painful – even embarrassing – thing to rake back over your old prose. This, at least, evoked the experience I remember. 

I am not one of life's joiners, despite my partisan inclinations. I'm not a marcher.  I didn't find myself, politically, during the indyref. I am a crappy and a complacent activist. An inactivist, essentially. The experience didn't transform my ideas of politics. But like many folk of my generation, it was, and remains a profoundly important - even seminal - moment from which it will be difficult to escape for some time to come. Whether or not we revisit the national question later rather than sooner, the autumn of 2014 will cast a long shadow for decades. But where are we now, two years on? Whither now, for the calculating Scottish nationalist with the long view? It has all become tremendously complicated. I wish I could see my way through it all more clearly.

13 September 2016

A Bill for Criminal Letters

"Criminal Letters" sounds like a pot-boiler crime novel, written by one of Agatha Christie's less talented impersonators.  But in Scots law, this evocative phrase has a more precise meaning. The overwhelming majority of criminal cases in this country are pursued by the Procurator Fiscal, prosecuting individuals in the public interest, under the superintendence of the Lord Advocate.

But if Scotland's principal prosecutor declines to pursue a criminal case against an individual, for whatever reason? Scots law leaves the door - slightly - ajar for ordinary citizens to take the initiative against those they believe have wronged them, and to pursue a private prosecution. 

But in order to do so - to lay the indictment, to summon the accused to the dock, and impanel a jury - first, a Bill for Criminal Letters must be presented to the High Court of Justiciary. If senior judges agree that the private prosecution is warranted, they will pass the Bill and the private prosecution can proceed. But if they refuse to issue criminal letters? That's the end of the matter. Case closed.

As you may have heard on the news this morning, at 10.00am in the High Court of Justiciary in Edinburgh, legal proceedings commenced against Harry Clarke, the Glasgow bin lorry driver who lost consciousness at the wheel on the 22nd of December, 2014, resulting in the deaths of six people. Lawyers for Matthew and Jacqueline McQuade and Yvonne Reilly - who lost relatives in the accident - are trying to persuade the court to give them permission to prosecute Clarke for criminal offences, as yet undisclosed. In parallel, the Stewart and Convy families are pursuing criminal letters against William Payne, who was involved in a separate road traffic incident in 2010 which resulted in the tragic deaths of Mhairi Convy, 18, and Laura Stewart, 20. 

The legal argument is set down for two days, Tuesday and Thursday.  Don't expect to hear any real detail about the arguments deployed by the different parties appearing before the Court. Judges have imposed strict reporting restrictions on the case under the Contempt of Court Act.  Why? Principally, the court is concerned with the  fair administration of justice. If criminal letters are granted to either or both of these families, more court proceedings against will inevitably follow.  Judges are anxious that nothing potentially prejudicial should find its way into the media.  

But we can say a thing or two about the general approach the court is likely to take in deciding whether or not to pass these bills for criminal letters. (I've blogged about this in detail last year, but wanted to give you a quick refresher.) In Scotland, applications for private prosecutions only come around once in a blue moon. But past cases highlight key issues which will preoccupy High Court judges this week. The notorious Carol X case from 1982 gives you, perhaps, the clearest sense of how the court will approach the decision and the legal tests involved. For the sake of clarity, I'll focus on the Clarke case only here. But everything I say applies equally to the Payne application being pursued in tandem. 

To secure the criminal letters they crave, the McQuade family will have to persuade judges of four things.

1.  Do the families have "title and interest" to prosecute?

Having drawn up a specific charge sheet and laid it before the court, what then? Firstly, the private prosecutors have to show that they have "the necessary title, and has qualified the necessary interest, to prosecute privately." What does this mean? Like any other legal action, here the families will have to show that they have sufficient legal interest in the matters before the court. You can't sue a landlord because she is unpleasant to your friend, their tenant. You can't take a man to court for a personal injury he has inflicted on an acquaintance. 

The same goes for a private prosecution. Carol X's title and interest in prosecuting her attackers was beyond dispute. She had been the victim of a horrific and violent sexual assault. But sometimes title and interest may be less clear, depending on what precisely you are seeking to prosecute. The Sweeney and McQuade families have an obvious and overriding interest in the tragic deaths of their relatives. The loss is theirs. But what interest would they have in prosecuting a paper fraud committed against the DVLA, or Glasgow City Council, or First Bus? This seems like a technical point, but it might become an important one.

2.  Is there evidence in support of relevant criminal charges?

Next, the families will have to present the court with sufficient evidence to prove there is a prima facie case, sufficient to justify bringing Harry Clarke to trial for the offences identified in the bill of criminal letters. Again, all this has to be specific. Named offences, chapter and verse. As with much else about this case, this detail on this is not currently in the public domain. 

3. But are there "very special and exceptional circumstances"?

If these two tests are satisfied, the families will still need to persuade the court that there are "very special circumstances which would justify us in taking the now exceptional step of issuing criminal letters at the request of a private individual" and allowing a private prosecution to proceed. That's the test. "Very special and exceptional circumstances." 

In Carol X, there had been a clear and material change in the complainer's well-being and mental health. The crown accepted that there was a sufficiency of evidence and a prosecution would be in the public interest. The underlying crime was appalling, harrowing. The circumstances were complex and unusual. Carol X was, in the words of Lord Justice General Emslie, a "quite exceptional case." Does McQuade and Sweeney v. Clarke, or Stewart and Convy v Payne, pass that high hurdle? What makes these cases "special" and "exceptional"? This is the critical legal test. 

4.  And would allowing a prosecution be "oppressive"?

Lastly, the court will almost certainly be invited to consider whether it would be oppressive to allow Harry Clarke to be tried, in the light of the procedural history of the case, and the background coverage it has already received. In Carol X, the two accused - unsuccessfully - argued that "the widespread publicity about this case" in "the Press, on television, on radio, and in Parliament itself, has made it impossible for the respondents at any time to obtain fair and impartial trial anywhere in Scotland."

Similar considerations might apply here. The accident in George Square, its aftermath, and the FAI hearings and outcome, have been subject to wall-to-wall coverage in the national and local media. Taking that into account, can Mr Clarke, or Mr Payne, receive a fair trial?

These questions are for the judges of the second division to decide. The case continues.

24 August 2016

Beyond the grave

The folks at the National asked me to fill in for a couple of weeks, while one of their regular columnists was tripping the light fantastic on their holidays. In my second and last effort this morning, I thought I'd take a break from the relentless politics of Brexit, and GERS, and #indyref2, and write something a little more personal, historical and meditative. Here's an excerpt:

There are always figures in your family history who cast longer shadows. The folk who catch the eye, who haunt and preoccupy. Sometimes their choices coloured everything that came thereafter. Sometimes they are enigmas. Sometimes you feel – or perhaps only project on to them – a sense of recognition. Sometimes you feel you can detect their influence on folk you have known – your parents and grandparents. 
Angus Miller, my great-grandfather, was one of these characters. A rural doctor, he was born during the reign of Queen Victoria, and tended to the health of his community long before the Labour government of 1945 introduced the National Health Service. We still have candlesticks he was given by a grateful blacksmith, who couldn’t afford his medical bills, but who could work and shine metal into beautiful shapes – a memento of a child whose life had been saved on the western edge of the Scottish wilderness.

17 August 2016

En vacances

As my earlier correspondence on the Named Persons judgment suggested, I've been furth of the United Kingdom on my holidays for the last few weeks. (See an uncanny artist's impression, left). But touching back down in Scotland this morning, I found Glasgow bathed in something resembling natural sunlight. It was balmy. Unfamiliar blue patches had sprung up in the sky, as I steered back from France. This novel experience was uncanny, but found me in cheery, serene, hopefully restored fettle. 

But before I landed, I filled in for an absent National columnist this morning, reflecting on one or two of the more curious characters I met, and political conversations we had, trundling around the south of France. Again and again, I encountered the curious character of the foghorn-leghorn Brexit voter -- souls who have moved to France, but blithely cast their ballots in favour of Britain's crashing out of the EU.

"OUR location? La belle France. Our temperature? 32 degrees. We’re many leagues into taps aff territory here, through warm fields of vines, and parched Cathar castles, and Cypress trees. Cicadas electrify the woods. Crickets keep up dry and woody symphonies in the underbrush. And my current complexion is what my mother would describe as a “healthy puce”. Hypertension red. 
I have become the traditional lobster ecossais which results whenever anyone from this country is exposed to anything like natural sunlight for a sustained period. Rudolph has nothing on me. I might use my face as a reading lamp, or perhaps deploy it to power a modest solar energy scheme – if only Ms May’s new government hadn’t shuttered our renewable future and squandered all my ruby phizog’s potential energy. 
But as the rays beat the terrace outside ruddy, I loiter sweltering in the back cave of a local bar. A rugby match rumbles on, on the telly. 
The hooker takes out a prop and the referee misses a gruesome tackle. Offside rules are flouted, provoking only the occasional outraged Gallic interjection. Our audience is principally French, sipping little beers and lining the snug, watching one local team leather another. 
The atmosphere is convivial. 
But in their midst? Our John Bull, ex patria, is determined to give the citizens of his new home a passionate defence of why he voted for Brexit. Their incredulity is general. My ears burn."

Unlike my weekly Times bits, locked away behind the paywall on Thursdays, you can read the whole thing here. More peated blogging when we have it. 

29 July 2016

"Hated Named persons scheme blasted as 'totalitarian'..."

I know, I know. I ought to be out eating duck gizzards and quaffing vin rosé -- and I am. But in the wake of yesterday's Named Persons judgment - further details here - I wanted to pick up just one element of the coverage of case, which warrants further scrutiny. This is pleasure, not business.

The word of the day, children, is "totalitarianism." The Daily Mail, whose rabid fulminations against the Named Persons schemes have been unrelenting, stick the word in their headline, and suggest in the body of the piece that the Supreme Court "blasted" the named persons scheme "as totalitarian."  In the Courier, the Christian Institute Colin Hart suggests Justices "even invoked the spectre of totalitarian regimes in its criticism of the plans." Brian Monteith weasels the word into his Edinburgh Evening News column, and even the Herald's readers get in on the act. Aberdeen's Press and Journal quote what they describe as a "devastating line" from the judgement: "The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world." 

The implications of these reports are all spectacularly unsubtle. The casual reader, leafing through the paper and spotting these stories, would be lead to understand that the Supreme Court had criticised the SNP government in general, and the Named Persons scheme in particular, as "totalitarian." Step forward, former Scotsman reporter David Maddox, who has returned to his roots with a new gig writing about politics for the Daily Express. Mr Maddox summed up the allegation neatly, if mendaciously, in a tweet yesterday: "So it is official ... a Court has likened SNP run Scotland to a "totalitarian regime." The meme did the rounds vigorously on social media. "A shocking assessment of the SNP" government one remarked. "A senior judge said this of them. Shocking."

And I grant you, on the face of it, these headlines don't look good for the Scottish Government. A senior judge, using inflammatory language like that? A bench of experienced jurists, slating the SNP's child protection measures as akin to the bloodiest and most sinister regimes the world has known in the last century? Remarkable.  

But wait: how does this -- how can this square -- with that important passage from yesterday's judgment, in which Lord Hodge described the purpose of the Named Persons scheme as "unquestionably legitimate and benign", without a peep of dissent from his colleagues? I know you are supposed to get more conservative as you get older, and heaven knows, judges aren't always the most liberal of spirits, but surely Lord Hodge wasn't suggesting that the - albeit flawed - Named Persons scheme was simultaneously "totalitarian", and "legitimate and benign"?

Of course he wasn't. Because Mr Maddox, the Daily Mail, Colin Hart, Brian Monteith, the Press and Journal are all - deliberately, or through their ignorance and incompetence - distorting the judgment to suit their intellectually dishonest political goals. I told you there would be spin about this judgment -- from both sides. There has been. I sympathised with journalists yesterday. We have the outcome of the court case -- a Pyrrhic victory for the Christian Institute -- but the Court's lengthy reasoning is more nuanced and hard to get your head around, never mind to bang out a pithy but clear few hundred word story about. Many journalists made a good fist of bringing their readers the essential facts, gesturing to the legal and political complexities of the case, even if they could not entirely account for it in their pages.

But what I find galling -- what I find indefensible -- is the wilful dishonesty which has characterised parts of the right-wing media's reporting of this story. It is as if their journalists tried to read the judgment, got bored, befuddled or confused, and instead -- just found the fieriest word in the text and decided to sex it up into an unprecedented judicial drubbing for the SNP.  But don't take my word for it. Just read paragraph [73], which is the solitary instance of the word "totalitarian" in the judgment. Lord Hodge said:

There is, you will note, no mention of the Named Persons scheme in this passage. Nor is there many mention of the SNP government, or of "SNP run Scotland", to borrow Mr Maddox's pithy phrase. Instead, Lord Hodge lays out the roots of the right to privacy and family life in international human rights law. He goes on to set out key principles and cases from the ECHR in subsequent paragraphs, before returning to their application to this case. This isn't a "devastating line" as the Press and Journal had it. It is bone dry judicial background. It doesn't "blast" the Named Persons scheme, or the SNP government, as "totalitarian", however much the Daily Mail might have liked the court to use this kind of salty language to describe the policy.  

It is an old trick, none the less shabby for its familiarity: the selective quotation, deliberately decontextualised, its true object obscured, and presented in a way calculated to mislead the reader.  If I was Lord Hodge, or any of the four other judges who contributed to the judgment, I doubt I'd be terrifically pleased to find Mr Maddox and his fellow travellers' putting words in my mouth, misrepresenting my judgments, and trying to pull me into their political battles. 

Whatever you make of the wisdom or folly of the Named Persons schemes, whatever you make of its flaws or the flaws of the government which sponsored it, we ought to be able to agree on this. Having read this passage, only an idiot could conclude the Court was "likening SNP run Scotland to a totalitarian regime." Only a determined charlatan could tell the public that Lord Hodge was "blasting the named persons scheme as 'totalitarian.'" 

For shame.

28 July 2016

Named Persons: a Pyrrhic victory, a Pyrrhic defeat

Bonjour from the bonny Languedoc-Roussillon! I'm meant to be on my holidays, but the Supreme Court of the United Kingdom is no respecter of summer sojourns. The Court just handed down its judgment in the Christian Institute's challenge to the Scottish Government's controversial Named Persons scheme. 

You can read the - far briefer - press summary here. And heaven knows, the hacks will need help reporting this one. Both sides will claim victory, and indeed, both sides have achieved important things in this judgment. It puts the headline writers in an awkward spot. The spin-machines will be whirling overtime. Everyone will take what they want from the decision, whether or not you can find it in the court's analysis.

So what's the short version? Here follows a - very brief, dashed off holiday primer on some of the issues. I've only had time to make a hasty reading of the judgment in full. Forgive any weaknesses or glaring gaps in the speedy reaction that follows.

The Christian Institute won -- the court, led by Lady Hale and Lords Reed and Hodge -- decided the Named Person scheme as presently constituted is unlawful. It is incompatible with Article 8 of the European Convention on Human Rights. Article 8 protects the privacy of your home and family life, of your correspondence. But in order to understand what the Court has and has not decided, you have to know a little more about how they approach Article 8. Privacy and family isn't an absolute right. It is qualified. The state is allowed to interfere with its citizens family lives -- if they have a good reason to do so. 

Thus, for example, the law permits children at risk to be taken from their parents. A more radical intervention in anybody's family life, it is difficult to imagine -- but if there is a good reason for doing so, Article 8 will not prevent it. The same goes, for example, about bugging the houses of people suspected of serious organised crime, or terrorism. A more radical intrusion into your home life, it is difficult to imagine, but if it is for a good reason, and strikes a fair balance between the collective interests of the community and the rights of the individual, Article 8 doesn't stand in its way.

So for any given scheme which interferes with a citizen's privacy or family life, the court must ask itself three questions. One: does the scheme purse a "legitimate aim"? Does the government and parliament have a good reason for interfering with the rights of its citizens? Today, the Supreme Court held that the aim of the Act, "is unquestionably legitimate and benign". 

Two: judges must consider, is the measure "necessary in a democratic society"? Essentially, this means: is the measure proportionate? Does it go too far? Today, the Court fired a warning shot across the Scottish Government's bows, observing that because of weak guidance in the legislation, the Named Persons scheme does have the potential in some cases to disproportionately interfere with privacy and family life. 

But critically, this morning judges recognised the Named Persons scheme as a whole does pursue a legitimate aim, and can be proportionate across the piece. But judges expressed some pretty serious reservations about how the scheme will operate in individual cases, concluding that without clear guidance on the powers and responsibilities of Named Persons, the scheme as presently drafted "may in practice result in a disproportionate interference with the article 8 rights of many children, young persons and their parents, through the sharing of private information." Which brings us on to the third and final test, and the critical one in this appeal.

Thirdly and lastly, the court must ask itself whether the scheme is "according to law"? This, rather than legitimacy or proportionality, is the key point in today's Named Persons judgment, and the basis for the Court's conclusion that the legislation - as it presently stands - is unlawful. 

In principle, we live under the rule of law. Decisions taken by our public authorities must not be arbitrary. There should be a clear legal basis for their actions, and more than that, decisions which interfere with fundamental rights must, in particular, have a clear and rational basis in law. That might mean the  backing of parliament through legislation, or a decision of the courts. Here, the Named Persons scheme was enshrined in law by Holyrood in Part 4 of the Children and Young People (Scotland) Act 2014.  

But having some legal basis for a scheme isn't enough. The ECHR is not just concerned with whether there is a legal basis, but the quality of the legal basis. The law must be clear about what powers and responsibilities public officials do and do not have under the legislation. That's the nub of today's decision, and that's where the Scottish Government has taken a tumble. 

Lord Hodge and his colleagues concluded that the legal rules governing the Named Person scheme currently aren't tight enough or clear enough to satisfy the ECHR.  But critically, this can be fixed. The Scottish Government lost, but this decision does not permanently hull the Named Persons scheme below the waterline. I hope that makes things just a little clearer. There is, as I've said, something here for everyone. Sharply critical passages. Important concessions. Expect the partisans to seize their advantages where they may, and to spin like billy-oh.

What we all ought to be able to agree on is this. This judgment calls for a fundamental reappraisal of how the named persons scheme is set out in primary and secondary legislation. It demands a very serious second look at the rules which have been put in place to govern the legal powers and responsibilities of Named Persons. John Swinney has indicated this morning that he intends to fix up  the scheme, and "roll out" named persons as soon as possible. But with the proper amendments, nothing in this judgment prevents him from doing so. For the Christian institute, perhaps a Pyrrhic victory, for the Government, a Pyrrhic defeat. 

And now, summoned away from my dusty shelf of law tomes, the sunshine calls...