26 November 2015

Judge: victim "condoned" and "acquiesced" in her rape

HM Advocate v. SSM is a case of rape, and a case of the sexual abuse of children. In May this year, SSM was foung guilty by a jury in the High Court in Glasgow of seven charges. These are summarised in the Appeal Court's judgment this afternoon. I caution you. The details are unpleasant. But understanding the facts of the case is critical to contextualise the anonymous  trial judge's remarkable - and in many ways, appalling - commentary upon them. 
[1] ... The first (charge 1) was one of using lewd practices on various occasions against AdM, a boy aged between 9 and 10, in 2007-2008, including handling the boy’s penis, attempting digital penetration of his anus, compelling the boy to masturbate him and oral penetration of the boy with his penis. The second (charge 2) was indecent assault, again on various occasions during the same time period, against the boy in the form of attempted sodomy. The third (charge 7) was using lewd practices on various occasions against TD, a girl aged between 12 and 14, in 2008 to 2010, including digital vaginal penetration, contrary to section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995. 
In relation to the adult complainers, the fourth and fifth (charges 13 and 15) were libels of indecent assault against CD in 2008 to 2010 in the form, first, of one incident of continued penile penetration of the anus after the withdrawal of consent and, secondly, of penile penetration of the anus on various occasions. The sixth (charge 18) involved anal rape of CD on various occasions from 2010 to 2013, contrary to section 1 of the Sexual Offences (Scotland) Act 2009. The seventh (charge 19) was the anal rape of AM, his wife, on one occasion in 2013, contrary to the same statutory provision.

An ugly indictment then. What did the sentencing judge make of it? It is difficult to know where to begin with his commentary on the case. With characteristic understatement, the Appeal Court notes that "in his report, the trial judge has made a number of observations about the sentencing of sexual offences involving both children and adults. Some of these may be regarded as controversial." "Controversial" hardly covers it. In handing down a five year prison sentence, and in explaining his decision to the Appeal Court, the judge made the following observations.

  • Assessing the gravity of the anal rape of AM, "the judge classified the level of criminality and level of harm suffered as “minor”, involving only “a transient sense of violation”. He "considered rape to be a species of aggravated assault and that this incident equated with an assault to injury which might have been prosecuted at summary level."
  • He had this to say about the second adult complainer, CD: "CD described an occasion when she had, at the respondent's request, agreed to try anal sex for the first time. This had been on the basis that they would stop if it were painful. It was painful, but the respondent had not stopped when asked to do so. He had had anal sex with her on 3 or 4 occasions without her agreement. None of the anal rapes were reported to the police at the time. They would not have been reported but for the police inquiries. Under reference to Stallard v HM Advocate, the judge refers to CD “condoning” or “acquiescing in” the rapes. He refers to CD freely choosing to continue to live with the respondent after the rapes had occurred. This he regarded as such “powerful mitigation” that he might have considered an admonition as an option, had the convictions involving CD stood alone."
  • Explaining the fairly modest sentences handed down for the offences against the children, the judge indicated that he'd had regard to his "impression of the effect of the offending on the children" and "of the effect that more severe punishment might possibly have, taking into account the guilt that child sex abuse survivors are often said to experience, particularly where family and relationship break-up is involved." As the Appeal Court note, the judge "had no basis for his theories about feelings of guilt in abused children or for reducing any sentence on account of his impression of the robustness of the children." 

But it as paragraph 11 of the Appeal Court's judgment where we really slip into the jurisprudential twilight zone. Condemning the prisoner as a “coward and a bully”, eking out “a benefit-grubbing existence ... sponging off women”, the trial judge decided to share his thoughts with the Appeal Court on a diverse range of considerations:

  • In relation to the adult complainers, the main thrust of the plea in mitigation was the impact of the offences against the background of general sexual promiscuity. The judge describes the offences as “essentially non-violent relationship rapes”. He reports that juries do not convict of such rapes because, according to “received wisdom”, High Court sentences for such offences are disproportionate. In this context, he challenges the need for all rapes to be tried by jury, given the low conviction rate and the multiple traumatic experiences of complainers in being raped, then subject to: (a) the investigative process, (b) the wait for trial, (c) the cross-examination, (d) a possible acquittal; and (e) a return to the community with the stigma of having been disbelieved.
  • The judge points to the spectrum of seriousness in rape sentencing as illustrated by Scottish practice and in the England and Wales Definitive Guideline. He asks whether there is a lower custodial limit for rape sentences. He speculates that, but for the existence of 2 adult complainers and the libel of anal (as distinct from vaginal) penetration, no convictions would have followed. However, whilst considering that the rapes were “at the lower end of the seriousness scale” he reports that he did not regard the respondent's relationships with the complainers as mitigatory per se.

But Lords Carloway, Matthews and Bracadale were having none of it:
"The trial judge has also made some pithy remarks about prosecution policy, jury reaction and related matters. It may be that others may share some of his thoughts, but many will undoubtedly not. The short point is that, whatever a judge’s own views may be, he must sentence on the basis of the crimes of which the respondent has been convicted, albeit in the contexts in which these crimes have been committed, in light of current Scottish sentencing principles and practice."
Concluding that SSM "clearly poses a threat of serious harm to the public" and "notably women with young children", the Appeal Court quashed the five year custodial sentence and substituted an eight year prison term and four years of supervision after release in the interests of public safety. It is remarkable - quite remarkable - that any trial judge would treat a note of appeal against sentence as an opportunity for a general meditation on such diverse topics as prosecution policy and jury reactions to complainers. A jury having returned a guilty verdict in respect of all of these charges, it is remarkable that a trial judge would speculate on what might - or ought - to have happened if the indictment had alleged multiple sexual assaults of a different character. 

But it is the attitudes disclosed in the judge's note which are most disturbing. The Appeal Court's judgment relates only sections of this document. But the sections related stand starkly at odds with the hard-won modern understanding that rape is a distinctive and serious wrong. Lord Carloway summarises it well: 
"Rape may often, if not always, be a crime of violence, but it is not an aggravated assault. It is a separate crime involving the violation of a person’s sexual integrity."
The idea that a victim "condoned" their own rape, or that they "acquiesced" in it - the idea that the "guilt" of victims of child abuse weighs against a more severe penalty being imposed on their abuser - I'm stunned that any judge of the High Court would even contemplate these views, never mind setting them down in writing for senior colleagues, reviewing their sentencing decision.  Just stunned. Wrongheaded, outdated, and wrong, wrong, wrong.

22 November 2015

Glasgow: Forgetting slavery?

"Don't keep your head down. Look up." Whether you're trudging through Glasgow in the summer sleet, or the winter snow, the local sometimes needs reminded to contemplate the grandeur of the place. Edinburgh's skyline sucks the air out of you, a jagged man-made silhouette of spikes and spires. Glasgow's mountainous legacy of wealth is more easily overlooked. 

Its richly appointed statues stand sentinel over the bustling streets, peering down from formidable stone piles and Corinthian columns. Folk only rarely seem to notice the bombast and effrontery of the city chambers. We're more taken with the Duke of Wellington's famous headgear than the tobacco lord's townhouse which now hosts the Gallery of Modern Art. Familiarity breeds - not quite contempt - but a curious kind of taken-for-grantedness. I've been a more attentive reader of the many towns I've visited as a tourist than the fabric of the city in which I now live. I suspect I'm not alone. 

Kevin McKenna has an interesting piece in the Observer this morning, arguing "we Scots must face up to our slave trading past." This passage particularly struck me:

Well, a lot more of us ought to know now and we ought also to be demanding that we quietly take down the grotesque Merchant City signage and simply desist from using the term. And while we’re at it, we can also start looking at more appropriate names for Jamaica Street, Tobago Street and the Kingston Bridge, as well as the other roads and avenues that bear the imprint of evil. After all, we rightly celebrated renaming St George’s Place as Nelson Mandela Place. Of course there is a body of resentment over “reopening old wounds” and “raking up the past”.

I squirmed with discomfort here. Wouldn't renaming these streets represent only another erasure? Don't these streets quietly avow the past? I have a good deal of sympathy with Kevin's basic thesis. Scotland's role in legally-sanctioned kidnap and forced labour still feels marginalised in the public memory, not least in Glasgow. This can amount to what Stephen Mullen has described as a "myth of detachment and non-involvement" in slavery: "it wisnae me."

My secondary education contained next to no Scottish history. Needless to say, slavery and colonialism also went almost entirely unmentioned. In law school, I went on to study how Roman law was used to devise the early-modern duties and responsibilities and master and slave. I read the famous (1788) case of Joseph Knight, in which the Court of Session declared that Scots law did not recognise the institution of slavery. But overall? My understanding of this city's and this country's involvement in the exploitation of slaves remains sketchy, impressionistic. Again, I suspect I'm not alone. 

All that rum and cotton, that blood and toil and tobacco and molasses, has settled mutely into opulent stone I toddle past, all too often, bovine and unthinking. Jamaica Street doesn't (only) bear the imprint of the evil of slavery, but the imprint of our history. That history may not be inscribed on our memories. But these echoes - these nudges - preside over our streets, for those with eyes to see and ears to hear. They ensure, every day, that Glaswegians have no excuse for failing to "face up to our slave trading past." 

Virginia and Antigua, Buchanan and Ingram, these names are indicting, they're our history, and they should stay. 

17 November 2015

Critical friends

Whenever media commentators talk about SNP supporters or politicians being uncritical drones, I always assume they either have few Nationalist friends, or spend too much time on Twitter. In July, Iain Martin argued the party was turning into a "sinister personality cult". Today, Stephen Daisley writes that "the nationalist movement desperately needs critical thinking right now. The SNP megachurch brooks no heresy. MPs and MSPs genuflect to the leadership on all questions of doctrine." 

Now, I like critical thinking. A confident Scottish Government should welcome it. The best laid plans of mice, men, and governments - gang aft agley. Good intentions generate perverse consequences. Political discourse in Scotland remains oddly zero sum, reluctant to grapple with the fact that to privilege some values, others must be sacrificed. All of this needs to be exposed. All of this needs to be examined with more confidence, and less gormless snark. As one of life's natural heretics, and as an SNP supporter, I wish Scottish life had a more confident, more carefree public sphere in which ideas could be batted back and forth with gayer abandon. 

I wish our politicians - and yes, our academics too - were a bit less frit about putting their heads above the parapet. I wish more of them would brave the - very modest - storms and floods of daring to have an opinion in public. But the same press that frets about the Nationalist cyberlegion consistently pathologises political dissent. I can entirely understand the journalistic incentives behind this. Splits, divides and rebellions make for much more dramatic copy -- but the political media does a remarkable amount to foster and perpetuate the anxious, spinning, on-message culture some of its outriders purport to despise. So much, so banal. 

But sometimes I wonder if the indiscreet, blood-drenched tribalism of the Scottish Labour Party has spoilt our journalists and broadcasters. In the absence of self-destructive leaks, or internecine, anonymous intra-party briefings, it's assumed that Nationalists are uncritical moonies; that we've drunk the Kool Aid and have lost our wits. I'm yet to meet the SNP supporter with a brain who doesn't have parts of the party's platform and record they have their doubts about. Such is the fate of participating in a mass-membership party. Compromises are stuck. You won't approve of everything which finds its way into the policy platform. Unprecedented scenes, etc, etc.

Take your pick. Justice, health, education, Nato, international military interventions, Europe - I'm yet to meet the SNP sympathiser with their wits about them who doesn't harbour independent views on the SNP's government's record, and some question-marks and black-marks against it. Some of the most interesting and dramatic party barneys have never been reported. Can you find uncritical, unreflective diehards? Of course you can. But Stephen Daisley is conflating the absence of critical views with the absence of any inclination to share them with the Daily Record. "The war of all against all" may be a cherished tradition in Labour Party management, and a boon to the harried hack with a deadline to file, but it has little to recommend it. 

These themes are back in the media today, after former Salmond SPAD Alex Bell published a fiercely critical piece on the economic arguments for independence on his new platform, The Rattle. The economic basis of the article has been criticised. But bracketing these questions, my own objection to Alex's piece is more basic. Where is the emotional intelligence? The overt purpose of the piece is to call on SNP sympathisers to look critically at the government's strategy, both in terms of devolved policy, and to reflect on the sometimes harsh lessons of 2014, to re-examine the arguments uncritically and unsentimentally, unencumbered by attachment to the failures of the past, courageously and without illusions. Grand. A fine ambition. I agree. 

But you will never persuade anyone of anything by opening with the gambit, "you are an idiot and all your cherished viewpoints are self-evidently false." Nobody ever even earned a hearing with such a gambit. Hard truths must be communicated softly. Persuasion is almost always better achieved by seduction rather than conquest. Given the purpose of this intervention - and I don't doubt Alex's intentions are good and constructive in this respect - it is remarkable that he chose to pitch his criticisms in this way. His rhetoric alone green-lights SNP sympathisers simply to ignore its points, fair and unfair, compelling and misplaced though they may be. Which is, presumably, exactly the opposite of what was intended.

The "cocaine of the politically active, fun to join in but dulling the senses, jabbering on at a hundred words per minute while disconnected from self awareness"? Consciously or unconsciously, deliberately or quite by accident, alienating condescension leaks from every clause. Alex writes as if Daisleyvision was true, as if he is addressing biddable numpties without a skeptical spark in their heads. This is persuasion with a flamethrower. And it is disastrously ineffective. 

Invective is fun. Invective can be gratifying. But from someone trying to persuade other people, from someone trying to open minds to challenging questions rather than slamming them tight shut? It is disastrous, just disastrous. The unempathetic way in which Alex has couched his case ensures it cannot now receive a fair hearing or fair scrutiny. He has given anybody reluctant to address the issues he has raised every excuse to shrug off his argument uncritically. The article's lack of emotional intelligence blunts, rather than sharpens, his challenging case.  If this is persuasion, and an honest attempt to coax folk into a more self-critical stance, it has all the subtlety of a mashie niblick between the eyeballs. Which is a shame, as both Alex and Stephen are right to this extent: the SNP really does need its critical friends. 

14 November 2015

Compassion, lighting up the human heart...

This semester, I have been teaching jurisprudence, taking our law students through centuries of ideas about justice and mercy, of morality and law. It has been a fascinating - and sometimes challenging - process, reacquainting me with thinkers whose work I last considered in earnest some years ago. Just this week, we were talking about states of emergency, and the suspension of law in the name of security. I had no idea, when I took to my feet on Tuesday, that the end of the week would again make our discussion so bloodily, so horrifically concrete. 

There will be a raised voices today, arguments, anger and sorrow, for Beirut, and for Paris. I don't propose to add my half-formed thoughts and reactions to the multitude. But I did want to share this passage with you, which has been bouncing around my skull this morning. It is from Adam Smith's (1759) Theory of Moral Sentiments. Smith argued that fellow-feeling is the root of our ethics. He returns - again and again - to the figure of the sympathetic spectator, who participates in the joys, and the sufferings, of others.

But Smith recognises that bystanders, even empathetic bystanders, do not fully enter into the anguish or the animation of others. We feel - but we feel at a lower pitch, lower and lower as social distance multiplies. More proximate calamities can strike us with overwhelming force, remote crimes more remotely. Smith's point is not a cynical one. He is not defending the idea that we should be unmoved by the sufferings of far-away countries, or of people of whom we know little. Far from it.  

But in a world where it has become easier and easier to become a willing - or unwilling - spectator to the evils and calamities and wickedness of humanity, in a world demanding sympathy and compassion, this sometimes neglected Scottish philosopher still has something to teach us all. 

In the same manner, to the selfish and original passions of human nature, the loss or gain of a very small interest of our own, appears to be of vastly more importance, excites a much more passionate joy or sorrow, a much more ardent desire or aversion, than the greatest concern of another with whom we have no particular connexion. His interests, as long as they are surveyed from this station, can never be put into the balance with our own, can never restrain us from doing. whatever may tend to promote our own, how ruinous soever to him. Before we can make any proper comparison of those opposite interests, we must change our position. 
We must view them, neither from our own place nor yet from his, neither with our own eyes nor yet with his, but from the place and with the eyes of a third person, who has no particular connexion with either, and who judges with impartiality between us. Here, too, habit and experience have taught us to do this so easily and so readily, that we are scarce sensible that we do it; and it requires, in this case too, some degree of reflection, and even of philosophy, to convince us, how little interest we should take in the greatest concerns of our neighbour, how little we should be affected by whatever relates to him, if the sense of propriety and justice did not correct the otherwise natural inequality of our sentiments. 
Let us suppose that the great empire of China, with all its myriads of inhabitants, was suddenly swallowed up by an earthquake, and let us consider how a man of humanity in Europe, who had no sort of connexion with that part of the world, would be affected upon receiving intelligence of this dreadful calamity. He would, I imagine, first of all, express very strongly his sorrow for the misfortune of that unhappy people, he would make many melancholy reflections upon the precariousness of human life, and the vanity of all the labours of man, which could thus be annihilated in a moment. 
He would too, perhaps, if he was a man of speculation, enter into many reasonings concerning the effects which this disaster might produce upon the commerce of Europe, and the trade and business of the world in general. And when all this fine philosophy was over, when all these humane sentiments had been once fairly expressed, he would pursue his business or his pleasure, take his repose or his diversion, with the same ease and tranquillity, as if no such accident had happened. 
The most frivolous disaster which could befal himself would occasion a more real disturbance. If he was to lose his little finger to-morrow, he would not sleep to-night; but, provided he never saw them, he will snore with the most profound security over the ruin of a hundred millions of his brethren, and the destruction of that immense multitude seems plainly an object less interesting to him, than this paltry misfortune of his own. 
To prevent, therefore, this paltry misfortune to himself, would a man of humanity be willing to sacrifice the lives of a hundred millions of his brethren, provided he had never seen them? Human nature startles with horror at the thought, and the world, in its greatest depravity and corruption, never produced such a villain as could be capable of entertaining it. 
But what makes this difference? When our passive feelings are almost always so sordid and so selfish, how comes it that our active principles should often be so generous and so noble? When we are always so much more deeply affected by whatever concerns ourselves, than by whatever concerns other men; what is it which prompts the generous, upon all occasions, and the mean upon many, to sacrifice their own interests to the greater interests of others? 
It is not the soft power of humanity, it is not that feeble spark of benevolence which Nature has lighted up in the human heart, that is thus capable of counteracting the strongest impulses of self-love. It is a stronger power, a more forcible motive, which exerts itself upon such occasions. It is reason, principle, conscience, the inhabitant of the breast, the man within, the great judge and arbiter of our conduct. 
It is he who, whenever we are about to act so as to affect the happiness of others, calls to us, with a voice capable of astonishing the most presumptuous of our passions, that we are but one of the multitude, in no respect better than any other in it; and that when we prefer ourselves so shamefully and so blindly to others, we become the proper objects of resentment, abhorrence, and execration. It is from him only that we learn the real littleness of ourselves, and of whatever relates to ourselves, and the natural misrepresentations of self-love can be corrected only by the eye of this impartial spectator. 
It is he who shows us the propriety of generosity and the deformity of injustice; the propriety of resigning the greatest interests of our own, for the yet greater interests of others, and the deformity of doing the smallest injury to another, in order to obtain the greatest benefit to ourselves. It is not the love of our neighbour, it is not the love of mankind, which upon many occasions prompts us to the practice of those divine virtues. It is a stronger love, a more powerful affection, which generally takes place upon such occasions; the love of what is honourable and noble, of the grandeur, and dignity, and superiority of our own characters.  
When the happiness or misery of others depends in any respect upon our conduct, we dare not, as self-love might suggest to us, prefer the interest of one to that of many. The man within immediately calls to us, that we value ourselves too much and other people too little, and that, by doing so, we render ourselves the proper object of the contempt and indignation of our brethren.

12 November 2015

Three days in November

Alistair Carmichael must have had better weeks. For three days, his character has been under the judicial microscope. If Tavish Scott seemed black-affronted by the idea of testifying before the election court, Mr Carmichael's experience must have been altogether more mortifying. The former Secretary of State for Scotland appears to have approached his evidence as a repenting sinner.

Wisely, he didn't try to defend the indefensible. When he was caught in a lie, he owned up to a lie. But where was this candour when Channel 4 came calling? Where was this impulse to disclose the truth, the whole truth, and nothing but the truth, when cabinet office investigators chapped on his door? "Now I'm under oath", he quipped to Lady Paton and Lord Matthews, explaining why he should now be treated as a credible and reliable witness. Tommy Sheridan's much-merited fate remains a salutary example to all witnesses. Good.

But the nature of the evidence Carmichael gave makes it extremely difficult to discriminate between truth and falsehood, candour and calculation. How can you tell what was in a man's head? How can you open up a window into his soul? Ultimately, it will come down to a question of trust. And as Jonathan Mitchell argued yesterday, Mr Carmichael's copy-book is more than blotted. His inkpot overfloweth.

The National asked me to write a wee comment or two on reports of the proceedings. Other commitments prevented me from toddling over to the Court of Session on Monday and Tuesday, but I was able to catch almost all of the final day yesterday, helpfully televised by STV. Wednesday was full of legal submissions, and brought the case against the former Secretary of State to a close. You can read my thoughts in the paper this morning.  An excerpt: 

"Avizandum! And we’re done. Dismantle the arguments and pack up the papers, slam shut the record and peel off the wigs. Barring an extraordinary appeal on point of law, the People vs Alistair Carmichael is now over. After two days of evidence from six witnesses and a full day of closing arguments from QCs Jonathan Mitchell and Roddy Dunlop, the MP’s fate lies in the hands of Lady Paton and Lord Matthews. In closing the case, they gave little away. Their final decision may be weeks – if not months – away. No harm in the election court taking its good time. The legal issues are knotty, the consequences severe. “Bruiser” Carmichael will never recover his reputation for political sturdiness, but if nothing else, the wait will teach him the virtue of patience. His life now lies in the balance."

You can read the whole article here. On last night's BBC Scotland 2015, there was some confusion about the consequences of all of this. Will the election court have the last word? Can the House of Commons review any decision taken? You'll find the answer in section 144 of the 1983 Act. 

It isn't for the Commons, but for the court to decide whether or not the election is void. MPs won't have to "rule" on Carmichael's fate. If Lady Paton and Lord Matthews decide the Lib Dem is personally guilty of an illegal practice under s.106 of the Act, he's done. Section 156 of the Act makes all this perfectly clear: "if a candidate who had been elected is reported by an election court personally guilty or guilty by his agents of any corrupt or illegal practice his election shall be void."

The role of MPs is limited to putting the sanctions into place, and moving the by-election writ at a suitable juncture. They can't make their own assessments of the merits and demerits of the case against him after the fact. Andrew Nicoll is mistaken about that. But now? Now we wait.

3 November 2015


Halloween's blog had a necessarily negative theme. Some correspondents felt I was being unconstructive in emphasising the limits of Holyrood's powers instead of the opportunities to blunt the impact of the proposed changes to tax credits. Holyrood has no direct authority over tax credits rates and tapers: this we know. If the moneys can be found -- and that is a big if -- some kind of income supplement could be funnelled towards some of those likely to lose out under Chancellor Osborne under the Scotland Bill powers.

But in pledging to "restore" tax credits clawed back by the UK's Tory administration, Kezia Dugdale depicted as fait accompli something which may well prove impossible on legal, cost and administrative grounds. If Dugdale had taken to the stage at her party's Perth Conference, and pledged only to do her darndest to devise a scheme which would mitigate the impact of the proposed cuts as best she was able, I'd have nothing to complain about, bar the funding question.

But she didn't. "Scottish Labour Government will restore the much needed tax credits" she said. Folk - folk on tax credits - listening to Labour's new leader in Scotland will have a lively expectation of a like-for-like, penny-for-penny restoration of their fortunes. Many, perhaps most, will assume that the Scotland Bill makes all this easy, makes all this just a matter of political will. But it doesn't.  

I take the point: exaggerated pessimism about the Scotland Bill powers is not helpful. But neither is the indifference to practical, workmanlike questions which has characterised much of the discussion of Kezia's bold conference move. We shouldn't underestimate the new powers, and overlook an opportunity to good, in the grim determination to see the blackest side of our devolution settlement. We shouldn't hobble ourselves and evade responsibility for what we can and should change. But practicalities matter.

There is nothing social democratic about false hope. There is nothing social democratic about convincing the low paid that Tory tax credit changes are easily and cheaply remedied with a strike of the First Minister's pen. They're not. As I wrote on Saturday, I'm sure folk struggling on low incomes will appreciate whatever help they can get from Holyrood. But I'm also sure that they'd have little patience with politicians making grand, uncosted pledges which are unlikely be honoured, even if Scottish Labour are swept to power in Holyrood in May next year.

"At least Scottish Labour are offering empty promises. Will the SNP match our uncosted pandering?" Where powers lie is not an arid constitutional matter. It isn't unconstructive to point out that achieving - even desirable outcomes - is likely to be difficult, beset by Treasury caprice and penny-pinching and the usual frosty hierarchical relations. I like living in hope as much as the next fellow - more probably - but as slogans go, "where there is a will there is a way" has all the statecraft of Noddy in Toyland. Try convincing the Treasury to exempt our firefighters and police force from VAT. See how far living in hope takes you with David Gauke, coiled like a dragon on his hoard. 

A few questions then, in a constructive spirit. Firstly, how will the entitlements of individuals be established in Kezia's "restoration" scheme? As I outlined at the weekend, George Osborne's tax credit changes involve accelerating the taper and reducing entitlements to tax credits on a much lower threshold. This is a dynamic assessment, varying from year to year. Holyrood can do nothing about this. Tax credits - while they remain - are reserved matters. From an administrative point of how, how does Scottish Labour envisage this will work? What rules will apply? A simplified compensation scheme might be devised - but almost inevitably, it would result in some losses from the tax credit changes not being compensated by a Labour administration. 

Would this live up to the "reversal" of cuts promised? With the best will in the world, it is difficult to see that it could. The more complex the scheme of entitlements, with greater variables, the greater the headache from an administrative point of view. Time, personnel, money, development. At what point does the cost of administrating a new entitlement to mitigate tax credit cuts represent a poor use of public funds, robbing Peter to pay Paul? There must be limits. Even if you are sympathetic in principle to the notion of mitigating tax credits cuts - there is nothing churlish about asking this question.

A hard line cannot be drawn between the desirability of a policy intervention and the cost of its implementation. The two must be part of a sound analysis of whether tax credit mitigation is the best way to use the Scottish Government's limited resources. That is a political judgement, for sure. But we treat Scottish Labour like a child, and not a government in waiting, if we attend only to their good intentions and fail to ask how they will bring the bacon home.

HMRC currently administers tax credits, but they are due to be folded into the universal credit at some point in the as-yet undetermined future. Under the new Scotland Bill, Holyrood will be able to supplement this with "top up" payments to those who are already entitled to reserved benefits. Osborne's proposed tax credit cuts will come into force in 2016. A Labour administration in Holyrood seems unlikely to have access to HMRC's services. 

So who would administer the tax credit mitigation?  That notoriously streamlined, efficient, on-time and on-budget decision-maker that is the DWP? Who will bear any additional administrative costs?And what is a realistic timetable for implementing these plans? Could it be done immediately? That seems highly unlikely, not least because Kezia Dugdale's proposals to fund financial mitigation of tax credits will only come into effect in 2017 or 2018 on current projections - a year after the tax-credit changes may bite. We'll see. What is the transition plan, if any? Has anybody contemplated any of this at all?

An air of complete unreality has characterised much of the discussion of this proposal. The state doesn't turn on a dime. It doesn't matter a damn what the Scotland Act says, it the apparatus for realising its powers is not in place. A little contemplation, and a little look back on recent experience confirms this. Massive welfare schemes involving complex entitlements being applied to individuals in different circumstances can't be conjured out of the air. What is Labour's plan? Cast your mind back to 2010. Labour - understandably - did their dinger after Holyrood's tax-raising powers - effectively - lapsed. They remained on the statute book. Under the Scotland Act, MSPs could still vary tax rates. But in reality, HMRC wasn't in a position to deliver up a roll of Scottish taxpayers. 

Leap back another year to 2009. The failure to secure HMRC cooperation in the collection of the new local income tax scuppered the minority SNP government's plans. Bedroom tax mitigation was made possible by the infrastructure of local government discretionary housing payments, and big boosts to their budgets (but only after a lengthy period of petitioning the UK minister to change the rules to make it possible). What is the plan with tax credits? If the DWP can be persuaded to administer any changes, what is the probable time-table?

"We'll come up with something" just isn't good enough. It is complicated. Very well, it is complicated. That isn't a reason to abandon the whole scheme. But there has been no indication whatever that the new Scottish Labour leadership has even contemplated these questions before rushing out it tax credits pledge. The fiscal framework negotiations between the UK and Scottish Governments are still ongoing. These will be critical. All is in flux, constitutionally, fiscally, on social security policy. John Swinney's caution here seems eminently rational. Pessimism of the intellect and optimism of the will is generally a sound combination. All Kezia Dugdale has offered the Scottish people thus far on tax credits is optimism of the intellect, and optimism of the will. The "sunshine of socialism", I suppose. But when cold budgetary winds are blowing -- this is cauld comfort. A government needs its pessimism too. It keeps you grounded. It stops you making rash promises you can't honour.  

I am sure Kezia Dugdale's heart is in the right place, but the tax credit fait accompli she presented is as hollow as it is misleading. Many commentators seem perfectly content to nod along with this, declaring it a canny strategy which puts pressure on the SNP from the left. Mibbe. But if it does so, it is only because of the electorate's innocence about the distribution of power in our constitutional system, and the reluctance of our political analysts to take Kezia Dugdale seriously, and to ask her serious questions.  Some modest mitigation of tax credit cuts might be possible. If it can be done without creating an administrative monster, the Scottish National Party should seriously contemplate it.

But waving a blank sheet of paper, sans plan, sans scheme, sans any sense of the political struggles and trials which will beset your best-laid, best-intentioned plans? That isn't the "sunshine of socialism". It's a will-o'-the-wisp. 

31 October 2015

Kezia Dugdale: Doctoring with a cudgel...

Can Scottish Labour "reverse" Tory tax credits cuts, like-for-like? That's a money question, and an administrative question, but it is also a legal question. Scottish devolution is subject to an increasingly complicated set of founding documents and diktats. I sympathise with the bamboozled public. I sympathise with the bamboozled commentariat too -- at least to some extent. Much of the detail of the Scotland Bill has escaped without analysis - except in the most general terms - because the detail of the thing seems simply too complicated and too dreary. 

This aversion to detail has serious drawbacks. We are left with a population, unable to discern where power - and responsibility - sits. But we are also left with a public discourse in thrall to lazy misconceptions and downright ignorance. Microeconomists like to point out that information asymmetries inevitably empower some people and disempower others. What you don't know not only can hurt you: it can screw you over mercilessly. That's one of the reasons I try to shed a little light on tricky-seeming areas of law here. Ignorance, and maintaining public ignorance, is fundamentally a conservative impulse. Trust me, it says. I'm in the know, and I know best. I reject this outlook entirely. 

Understanding the politics of devolution increasingly demands that we understand the law of devolution. Regrettably, most of our key commentators and opinion formers still haven't the nearest, foggiest clue about how the powers and reservations of devolution are delimited. And more frustratingly still, they tend not to stir themselves to find out. Instead, they spend their time discussing political tactics, impressions, aspirations, court politics -- and as a result, allow politicians to peddle guff unchallenged. 

You can understand why. It is quicker, zestier - and simply more fun - to ask whether policy X knocks Kezia Dugdale off course, or if policy Y puts Nicola Sturgeon in a tough spot - than doing the dogged, drearier work of asking: is there any legal basis for this policy, and how the hell do we fund it? This isn't a partisan point. Nationalists have used press and public ignorance of the limits of the Scotland Act to pull a trick or two in their time. But we're poorly served - misled, really - if we allow it to continue.

This lamentable tendency is much in evidence in the reporting of today's speech from Kezia Dugdale, pledging to "restore", "cancel" or "reverse" Tory tax credit cuts. The first question you might ask is a simple one: are tax credits devolved now? No, they're not. And is the new Scotland Bill proposing to devolve decision-making on either the child or the working tax credit to MSPs? No, it isn't. So how the deuce is this flagship Scottish Labour policy to be delivered? 

Here we have to go back one step further, and consider a couple of even more basic questions -- "what are tax credits anyway? And how is George Osborne proposing to change them?" Administered by HMRC, introduced by the Labour government in 2003, working tax credit is paid to the low-paid to alleviate in-work poverty. Child tax credit is also available, on top of child benefit. But isn't Osborne proposing to abolish tax credits? Not quite. As he set out in his summer budget, the Chancellor's plan hinges on reducing the overall spend on tax credits by increasing tapers and restricting entitlements. The key passage:

"From April 2016, the government will reduce the level of earnings at which a household’s tax credits and Universal Credit award starts to be withdrawn for every extra pound earned. In tax credits, this point (known as the income threshold) will be reduced from £6,420 to £3,850 ... The government will also increase the rate at which a person’s or household’s tax credit award is reduced as they progress in work, by increasing the taper rate in tax credits from 41% to 48%."

Decode that a bit. Say you earn £6,420 per annum this year. You are entitled to your full award of tax credits. But what happens if you earn £7,000? For every £1 you earn beyond £6,420, your maximum entitlement to tax credits will be reduced by 41 pence. If Osborne's summer budget plans ever materlise in the spring of 2016, this means a sharper taper of 48 pence in the pound applying to income above the income threshold, which will bite a far more modest levels of earnings. It is this new calculation which will strip out appalling sums of money from the industrious poor. 

What should immediately strike you is: this isn't a straightforward clawback of benefits by the Treasury. Gavin Kelly is good on this. "Restoring" tax credits from Holyrood isn't a question of popping an extra £200 into the balance for each qualified applicant. Each individual case will have to be calculated on its merits. This is gruesomely complicated. Someone would have to do the calculations. And under the general principles of the Smith agreement, the bean-counting money would have to come out of the Scottish budget. 

And worse, Holyrood will have only the crudest tools to begin to mitigate this impact -- even if the money could be found to begin to do so. Whatever Labour hope to be able to do -- it can't be to "cancel" or "reverse" the effect of tax credit cuts. The Scottish Parliament just doesn't have the power. So what will the Scotland Bill let Holyrood do? Well, for starters, it gives MSPs power to make provision about some disability, carers and industrial injuries benefits, maternity, funeral costs and cold-weather payments - subject, albeit, to unjustifiable restrictions. The Bill will also give MSPs some power over income tax. They will be able to establish and vary a Scottish basic rate of tax, and the higher bands. What they will not be able to do, however, is to set the personal allowance or other more nuanced forms of tax relief.

This is all well and good -- but there is nothing here which would let First Minister Dugdale pursue the scheme she has outlined today. Instead, she would have to rely on section 21, which proposes to give the Scottish Parliament power to "top-up" reserved benefits with discretionary payments. However, this power only allows Holyrood to funnel funds to those who are already "entitled to a reserved benefit". It doesn't allow MSPs to create new entitlement schemes. And critically, those whom Osborne pushes beyond the scope of the social safety net cannot be caught by a Scottish policy intervention under the Scotland Bill. Nor is David Mundell proposing to give the Scottish Parliament power to devise and administer its own welfare schemes, following its own lights. Ebeneezer Scrooge lives.

As devolution expert Alan Trench observed on Twitter earlier today, this means that Holyrood could devise some kind of "income supplement" and foot the bill, but this couldn't be administered through the tax system as credits are at present. This Scottish income supplement would inevitably be subject to different rules, criteria and thresholds. Jehovah only knows what it would cost to introduce. Jehovah only knows where the money is supposed to materialise from. We can make a shrewd calculation, however, that any wheeze to mitigate the impact of Tory tax credit cuts, penny for penny, in every individual case, would be impractical and ruinously expensive.

The chancellor's tax credit changes are brutal, but surgical. At best, the Scotland Bill will give Holyrood a club to doctor to the injury Osborne's reforms will create. "What do I care?" says the hard-pressed worker, glad of any mitigation for their situation, and their lost tax credits. Quite so. But whatever this is, it isn't ""restoring", "cancelling" or "reversing" the Chancellor's unjust, disproportionate and unfair tax credit policy. Holyrood doesn't have the power. And it's pure fiction - political spin - to claim otherwise.