22 June 2016

The sentimental European

Purists hate the politics of the big coalition. This much seems uncontroversial. Divide a country - any country - of sufficient bigness, richness and complexity into two massive tribes, and you form uncomfortable, often incoherent coalitions. You quickly find folk vote your way for reasons you disagree with, and worse, which you disrespect. You find people you think of as your political fellow travellers voting for the other side, because some detail -- piffling to you -- torments them, some wrinkle in their soul, a different perspective. 

Purists also - in their bones - hate the cynicism of political campaigns.  It isn't my reasons for believing in Brexit, or supporting our continued membership of the EU that matters. Not to the instrumental activist. What matters is the arguments and reasons which might convince you, rather than those which convince me. And if I happen to hve an unpopular ideosyncratic view, unless I can bracket my own sentiments, unless there are a lot of people who share my outlook, I can't be an asset to your cause.

On the 18th of September 2014, I spent much of the day standing outside a kirk near Queens Park, Glasgow. The area was Yes inclined. It was a pleasant -- but doomed -- way to spend the day.  I'll never forget the woman who left the polling station, buoyant. "If we vote Yes, we automatically leave the EU" she said, having swallowed the Better Together line, hook and sinker. When she bounced out into the balmy afternoon, she had cast her Yes ballot. There was no use remonstrating, no use suggesting she'd misread the arguments of reached a - truly perverse - conclusion based on the two campaigns. I waved, dumbly, as she toddled down the street, having put up token resistance to her analysis. It wasn't worth it: her ballot was in my pile.

The EU referendum has brought out the awkwardness of the big coalition in spades. Pro-European Scottish Nationalists have watched a scorched earth economic case, orchestrated by the same folk in the Remain campaign who assured us that Scottish independence would result in an economic crucifixion. It has not been compelling. On the other side, eccentric - perhaps - but good-hearted, unbigoted leave campaigners have found themselves aligned with an often odious campaign, with which - I am sure - many would rather having nothing to do in any other circumstances. As I say: big coalition politics is difficult. It is often uncomfortable. It often feels a little dishonourable. And it makes for strange, incoherent coalitions. 

It is important to understand and scrutinise both campaigns - and both arguments - in this light. Different arguments will convince different people. There is no necessary hypocrisy in this. I would encourage you to vote Remain tomorrow. But the reasons which persuade me may not be reasons which persuade you. Some other advocate -- on either side -- may more effectively speak to your concerns than I can. Heed them. Follow your own best judgment. We are large. This is a country of several million people. Domestic politics is still diverging in the home nations. We contain multitudes.  

But speaking solely for myself: the European ideal still seems to me a noble one. The academic world is full of European citizens. I am surrounded by folk who live here, love here, work here, labour here, raise and educate their children here, because of the free movement of people. In the 2014 referendum, European citizens voted on the constitutional future of Scotland because -- at its most simple -- they are part of us. They choose to live here. They persevere here. They have their pleasures and their pains here, their friends and enemies. They have sparkling evenings, and dull times, they share laughter and kisses and rows and sorrows. They do precisely what the rest of us do. You may say this is sentimental. Very well: it is sentimental. But quietly, undemonstratively, this decision was one of the noblest things the SNP has done in office.

I cannot look at these people in the eye tomorrow - these colleagues, these allies, these friends - and vote to Leave the European Union. Unlike Jim Sillars, I cannot and I will not prosecute my indyref feuds with the European Commission and European governments by turning a cold shoulder on my comrades, who are part of us, who live with us, whose children are our friend's children, who elaborate Scotland and Britain's still largely monochrome tapestry.

They are immigrants and emigrants, just as Scots have traipsed across this globe for centuries, inflicting their lousy patter on the peoples of the world on the banks of the Hudson, in the scorching territories of Australia. They are people -- people who I have watched suffer, largely in silence, through this referendum. Tomorrow too, they will be silent in the ballot boxes, their votes missing. But one of my Dutch friends, who has lived in Britain for fifteen years, put it horribly starkly. "I will never forget the headlines. Stay or go, I will never look at you the same way again."

I believe that Scotland has a European destiny, inside the UK, or outside of it. For me, this is existential. Despite the slurs and the sallies, the wits and the wags and the denigrators, ours is not and has never been a separatist movement. I have no interest in narrow nationalism. Too often too isolated in this debate, the leadership of the SNP has forthrightly made the case for immigration, uncowed, unbend, courageously. They are to be commended. Alex Salmond recently put it well in the Oxford Union. We know being involved in mankind is nothing to fear. We know that the lean sphere of sovereignty is a boyhood fantasy. We aren't afraid of negotiating, even negotiating hard-headedly, in our collective interest. We abjure easy solutions to complex problems. 

Confident people -- truly confident countries -- do not hirple through their collective lives, cramped and shivering. They do not go into the darkness of the future with fear. They are emboldened by their own best traditions. They are fierce friends. They don't cringe.  They see opportunities, more often than they tremble. As a Scottish Nationalist, I am soaked in pessimism about the United Kingdom. This much you know. But this is a land with a better tradition which tomorrow will be weighed in the balance. I have no confidence about what the result might be -- but I know this. 

Despite my long-standing pessimism about the UK, I'll be exiled to the doldrums of unhappiness on Friday, if Britain crashes out of the European Union. The bottom will - once again - be speared out of what I thought was a bottomless bucket of disappointment with Britain. This may seem perverse. You are right. The force of those multitudes again, I suppose. But in my bones, I'm an optimistic soul. I remain a Scottish nationalist with regrets, still somehow stubbornly attached to the possibility of a better Britain. It will be a painful to discover my most harsh suspicions about this union are true. I'm not trying to be cute. I will be horribly unhappy to be confirmed in my prejudices.

Tomorrow is one of those days in our history which will try Britain's soul. It is difficult, even to begin to calculate the consequences of a vote to leave. Yet I cast my ballot, more in hope than expectation. And I cast it for my friends, sentimentally perhaps, but unrepentantly, a European.

20 June 2016

What would Brexit mean for devolution?

As we hirple towards the EU referendum finish line, I'm often asked a question. What would a Brexit vote mean for devolution? If we crash out of the European Union, would Holyrood - in a trice - become more powerful? The Lord Chancellor, Michael Gove, toyed with this kind of rhetoric last week, claiming that unprecedented immigration powers would be devolved to the Scottish Parliament, in the event of Brexit.  If you'll believe that -- you'll believe anything. Disembark from the banana boat which brought you up the Clyde. Check the back of your head for buttons immediately. 

But a similar argument was made back in February by Drew Scott of the University of Edinburgh.  Scott highlighted that, at present, a number of devolved issues - including environment, agriculture, fisheries and social policy - are guided by EU law. He suggested that "if the UK leaves the EU, then by default these powers will come back to the Scottish Parliament, not to the UK."

Is he right or wrong? And if so, why so? Show us your working. Let's start with the short version: for the main part, no, it isn't true. A Brexit vote on Thursday - in and of itself - does next to nothing to strengthen the powers of the Scottish Parliament. Nowt. Zip. Nada. Now - as always - we are subject to the whims of the majority in the House of Commons, which now - as always - ultimately decides what powers Holyrood will and will not be trusted with. Now - as always - this will be decided by the UK majority in Westminster. 

So how does it work? Here, things get a wee bit more complicated. Under section 29 of the Scotland Act, Holyrood's legislation must comply with EU law. That's why, for example, the Scottish Government's minimum alcohol policy could be challenged. Whisky manufacturers argue that it represents an unjustifiable interference in Europe's common market in liquor, indirectly discriminating against European companies, able to sluice out wine on the cheap. The case continues.

But that's not the only thing which limits Holyrood's powers in fields dominated by pan-European regulation.  The Scotland Act doesn't list all the issues which the Scottish Parliament has control over. Instead, the legislation knocks that logic on its head. It lists only those topics which Holyrood can't legislate about. You find all this in Schedule 5. We call these "reserved matters" - and if you take a look at them, you'll see that in most of the areas identified by Professor Scott, there would be limited or no "automatic" strengthening of Holyrood at all, even if EU law was disapplied.  

Take the issue of fishing, for example -- a hot button. Under C6 of Schedule 5, the "regulation of sea fishing outside the Scottish zone (except in relation to Scottish fishing boats)" is a reserved matter.  It will remain so unless and until Westminster removes this restriction. The same goes for many other areas of policy. With some limited exceptions, for example, equal opportunities remains reserved, despite agitation for its devolution in the last Scotland Bill. Head H reserves employment law to Westminster, including the minimum wage, trade union legislation, the Employment Rights Act, and so on. MPs decided that these should continue to be decided by MPs -- despite calls for their devolution as recently as last year.  

Professor Scott's point is more convincing when it comes to agriculture and environmental policy -- neither of which feature prominently in the list of reserved matters. But competency without cash is a paper power. Will future UK governments match the agricultural subsidies which the EU Common Agricultural Policy has used to support the industry of our farmers? Will an austerity government become big rural spenders? Who knows?

The idea that you can  - in a trice - "automatically" empower Holyrood across all these categories of governmental policy by leaving the EU is a naive fantasy. And that, before we get into the regulatory harmonisation which might be necessary if a weakened Brexit Britain is to cut the sort of trade deals with the rest of the bloc.  Your guess is as good as mine about what the majority in Westminster would during during a post-Brexit interregnum.  I don't know about you, but as a Scots lawyer, concerned with the powers of devolved parliaments and assemblies, I don't find the idea of "restoring" Westminster sovereignty over these fields terrifically reassuring. It is the usual grisly rhetorical prelude, anticipating bitter medicine. Pass the catheter. 

The only folk you can be sure you are empowering is the Conservative majority in the House of Commons. And despite their infighting, their backbiting and their bitter internal tribalism -- there remains precisely no indication they are on course to lose the next general election, or the next.  Nor is there any indication that Mr Cameron and his allies -- or Mr Johnson and his allies -- have the slightest interest in allowing Scotland to diverge from Westminster on workers' rights, equality, or immigration. Don't take my word for it. Just cast your mind back to the debates and votes on the last Scotland Bill, when Tory MPs trooped biddably though the lobbies again and again to shoot down  substantive SNP amendments. 

I don't know about you -- but this seems like a remarkably powerless, unreliable, risky way of "taking back control" over these areas of social policy to me. 

Now, you may well believe that after Brexit, everything will be different. You may believe that with Brexit, everything is possible. And in the most abstract, theoretical way -- for sure. But a sober worldly politics can't let itself be dazzled and distracted by abstract possibilities. Let's look at the probable, as well as the possible. Let's be tutored by our own experiences. Let's consider the social forces, actually in play. Let's contemplate who is actually likely to be empowered by crashing out of the EU. 

After all: who you gonna believe, Michael Gove, or your own lyin' eyes?

14 June 2016

Stone cold morons

The indycampers are morons. There's no getting around it, no sugar-coating it: stone cold morons. In -- legitimately -- resisting the Scottish Parliamentary Corporate Body's attempt to expel their small camp from Holyrood's grounds, the group have argued their case in a fashion which has lapsed from the divinely ridiculous to the grotesquely insulting. They have consistently ignored substantial legal arguments they might use to win their case, spending hours instead on eccentric, invariably doomed political points and barrack room lawyering. They are their own worst enemies.

This morning, they returned to Lord Turnbull's court, explaining that - months into their case and months after his first option - they still haven't tracked down a lawyer to represent them. The spokesmen for the camp went still further. They accused the judge of blasphemy, demanded the Queen appear to give evidence, demanded a jury hear the case, suggested that a key "spiritual" argument should be addressed by the court, declaring that "Jesus Christ the second is here and we're going to get our independence." 

I have the utmost sympathy for litigants -- ordinary folk -- trying to formulate legal cases without the assistance of a lawyer. This is hard, sometimes impossible, work. The logic of our courts puts them at a clear disadvantage when faced - as the indycampers have been faced - with professional opponents, whose bread and butter work is understanding legal procedures, rules and principles.

Having to do all this on the hoof - for yourself - without access to legal databases, without inbuilt legal know-how gained over the years, is tough. The inequality of arms can lead to injustice. Some judges are sympathetic to the plight of party litigants, others less so. Some try to take an active hand, focusing the ordinary punter's attention towards the key legal arguments and issues, rather than letting them dangle in the wind. They try to even up the odds, between the represented and the unrepresented party. They keep their patience, and try to see justice done as best they can.

Lord Turnbull is such a judge. We can only presume he lost the card-cut in the judicial dining room in Parliament House, to find himself landed with this case. And despite all manner of provocations, interminable, boring and irrelevant submissions -- this Court of Session judge has exhibited the patience of a saint. He had bent over backwards to accommodate the indycampers. He has treated their arguments as seriously as he could. He has tried to find any crumb of substantive legal argument in their digressive, and often just plain oddball submissions to the court. And by gum -- Lord Turnbull actually found one. The judge lit up this arguable point with neon lights in his first opinion in the "sovereign indigenous people of Scotland" case.  He told them to focus on it. He sounded sympathetic.

And what have the indycampers done with this helping hand? On the evidence of today's hearing, they've completely ignored it, abandoning a potentially winnable legal point which could block Holyrood's eviction plan, preferring instead to indulge in more antics and insults. It is frustrating. It is baffling.

Here's the short version of how they might survive. The Scottish Parliamentary Corporate Body is a public authority. Under the Human Rights Act 1998, the actions of public authorities must conform with the rights protected under the European Convention.  Article 10 protects free expression, Article 11 your right to freedom of assembly and association. Both of these are engaged by Holyrood's eviction plans, and both are qualified rights. 

That means the state is entitled to interfere with your rights to speak your mind and freely to assemble -- but only if particular conditions are met. The restrictions on your rights must be (a) according to law and (b) in pursuit of a legitimate aim -- national security, public safety, for the prevention of disorder or crime, for the protection of health or morals -- that kind of thing. Lastly, any interference must also be proportionate, striking a fair balance between collective interests pursued by the legitimate aim, and the fundamental rights of individuals to express their views, and to assemble. This is for the court to decide.

And in his first opinion, Lord Turnbull actually sounded reasonable skeptical about whether evicting this small camp would represent a proportionate measure by the Scottish Parliamentary Corporate Body. Distinguishing the situation involving the indycampers from other nearly analogous occupations, the judge had this to say:

[67] I have heard no evidence on the extent to which the respondents in the present case do, or do not, constitute an interference with the rights of others to access the grounds of the Scottish Parliament, or on any other matter which might fall to be weighed in a proportionality assessment.  As a resident of Edinburgh though, I am familiar with the layout of the grounds surrounding the Scottish Parliament building and the general location of the Camp.  As indicated by the petitioner, the Camp presently appears to occupy a small area at the very edge of the grounds which it owns and at the furthest point away from the entrance to the Parliament building.  It is not immediately obvious that the presence of the Camp would inhibit the use of the grounds by others for picnicking, dog-walking, or the like, as founded upon by the petitioner.  Nor is it immediately obvious that there are any real security or logistical concerns of the sort drawn attention to by the petitioner and which might weigh the proportionality balance in its favour.  

Abandoning their ridiculous antics, ceasing gratuitously to insult the trial judge, focusing on this legal argument  -- might actually get them somewhere. But after this morning's session, that looks like a fool's hope.

26 May 2016


May may not be the cruellest month -- but it is certainly the busiest. Between the election and its aftermath, the end of teaching and a small burst of sunshine, academic writing and conferencing, my examinations and the waist-high pile of marking they generate, this peat worrier has been crucified by work this month, by turns zonked, distracted and uninspired. 

So just a wee note to say -- I'm not dead; I haven't given up the ghost. The lectures are now over. The papers are graded. The brief sun has sunk beneath a more familiar Glasgow raincloud. Normal blogging service to resume here very shortly.

2 May 2016

Spinning Plates

It has been a slow April here on the blog. For the past couple of weeks, the inspiration for political writing has escaped me. Everything I have attempted has been lumpen, unreadable dross. But the mojo - happily - seems to be returning as we head into the final week of this Holyrood campaign. In the Times this week, I wrote a rather abrasive explanation of why I'm sick to the back teeth of Ruth Davidson, Scotland's most overrated politician. The Scottish Tory leader has emerged from this Holyrood race trivialised by her antics, a rather diminished figure.

 Although personally popular by Tory standards, Labour's weakness putting her in contention for second place, Davidson has run a relentlessly vacuous campaign which does her little credit. If straddling a bison and donning a captain's hat was all that was needed to detoxify the Tory party - Annabel Goldie should have tried it years ago. Though I admit, it is hard to imagine the late David McLetchie wielding an ice hockey stick or racing about on a snow mobile. Here's an excerpt:

But I'll be honest with you: I do not enjoy blogging elections. Unless you focus on some pernickety point of electoral arithmetic, or one of your opponents adopts a truly objectionable or dishonest policy, elections can be tough things for partisan writers who nevertheless do not want to become propagandists or cheerleaders. That'd be even more objectionable than bad writing. Even more intellectually compromised. Even duller.  And in any case, the role doesn't suit me. If this is what you're after, you'll receive a far superior service elsewhere. 

I will, as you might expect, be casting my constituency vote for Nicola Sturgeon in Glasgow Southside, and for the Nats on the Glasgow regional list too. I do so with few reservations.  I'm a fourth generation Scottish Nationalist. I'm in this for the long haul. Like the overwhelming majority of the party's supporters, I hope I'm no dupe, no drone, no uncritical robot.

I suspect I've enjoyed the personalisation of this Holyrood campaign about as much as the First Minister -- which is to say, not a great deal. The politics of personality isn't the kind of politics which attracts me most. That said, there is a great deal to be said for voting for folk whose judgement you trust, whose broad outlook you share.

Yes, politics and government is about policies. It is about what you achieve, and only passingly about who achieves it. But given the breadth and complexity of modern government, given the breadth of offices and issues which the next Scottish Parliament and Government must consider -- none of us can be the masters of every brief.  You might know your way around the economy, but be dumb as a brick about justice, welfare, the NHS. You might be hot on carers, or renewables, or tertiary education but cold outside your area.  Whatever. None of us - seriously - are capable of weighing all of the parties' policies in the balance.

Within the limits of the information available to most of us, however, we can judge the folk involved, weighing the kind of person who takes the decisions, and the sort of values they will bring to bear in making them. Nicola strikes me as a good woman, a smart woman, a sincere woman. She is aware of her limits. She makes no pretence at infallibility. But she's tough, fierce -- and most attractive of all, perhaps -- has visibly grown as a character.

You get the feeling that Alex Salmond sprang fully-armoured into life with a sharp tongue and a quick brain, an assured -- perhaps too assured -- political patter merchant even as a young man. The current First Minister has tracked a different trajectory. One of my friends compares her to Andy Murray - there is a residual touch of reserve there, of native shyness overcome, which I think many Scots recognise, recognise in themselves, and find attractive.

The tailored Mother of Dragons we see before us is hard won. This is not to imply the Sturgeon persona is confected, or artificial. We, all of us, play in and with roles. For my part, I suspect Nicola's now universal recognition actually makes life easier for her, as she has the battle-armour of the persona gird about her, wherever she goes. It is bound to burn off any residual shyness or reserve.

I'd be concerned if the campaign was only the game of personalities -- but it hasn't been. The SNP manifesto has a heft and reality to it which is to be commended.  We see an emergent Scottish governmentality, and an emphasis on universal services which is - just beginning - to pull together into a coherent story of Scottish self-government.  What is striking about this campaign is that it is only - really - the Tories who are in open dissent from the idea that prescriptions ought to be free, that tuition fees ought to be paid, that every baby should be boxed. Johann Lamont's "something for nothing culture" riff has been dumped. But there is a great deal more to do to weave all this into a coherent whole.

But if you have different political ideas and different allegiances, I'd encourage you to exercise them. All political activity involves compromises of some kind. Big parties, small parties, large movements, small campaigns -- all of them involve trade offs, and a cold eyed assessment of what your priorities are, and what internal compromises you are prepared to put up with.  People are generally reluctant to admit this is true -- particularly during election time -- but in my experience, most Nationalists understand an awful lot more about the compromises inherent in politics than many of their critics give them credit for.

You find individual policies - missing in the SNP manifesto - in the Labour, Green and Liberal Democrat efforts with which I have considerable sympathy. I'm sure supporters of other parties will find material for their own heresies and dissents in the pages of their opponents' platforms. This isn't the end of the world, despite all the grisly point-scoring which inevitably tends to accompany it.

Some folk, of course, are incorrigible puritans, nature's commissars determined to execute any perceived backsliding from their own positions. I salute them. They're welcome to their purity. But government is inevitably an adulterating enterprise.  It is a game of spinning a thousand plates, and trying to minimise the number which fall to the hard earth with a clatter.  Taxation, education, energy, justice, local authorities, farms and forests, the health service and social care, an emerging Scottish approach to disability and carer benefits -- the constitution.

If there's juggling to be done, I trust Nicola to do it.

26 April 2016

Just how solid is Scottish Labour's list vote?

Amid all the process and horse race stuff in this Holyrood election, there is one rather important question going conspicuously unasked: just how solid is Scottish Labour's list vote anyway? 

All the mischief has focused on the loyalty of folk likely to vote SNP in the constituencies. Will they stick with "Nicola Sturgeon for First Minister", or split their tickets, lending support to some other party for the regional calculation? This is all well and good. But the endless, circular conversation about the virtues and vices of #BothVotesSNP overlooks the fact that it is Kezia Dugdale's party whose fate will largely be determined by the d'Hondt calculations and the weight of support she can command on the regional ballot. 

And Scotland's electoral history being what it is, I wonder if Scottish Labour aren't more vulnerable to - potentially catastrophic - leakage in regional support than we've generally noticed. As countless commentators have pointed out, for years, in the wake of devolution, Labour didn't have a second vote strategy - they didn't need a second vote strategy - being comfortably returned to office on the back of the first-past-the-post constituencies and their reliable confrères, the Liberal Democrats.  

In this model, if Scottish Labour's electoral fortunes were to improve, you'd expect this to express itself in constituency gains rather than regional progress. But if the Holyrood map broadly follows Westminster's this election, the whole basis of Labour support will have been rearranged on a regional basis. In fairness, Scottish Labour are pushing their own #BothVotesLabour message. I'm sure old time Labour supporters who have stuck with the party will heed this and maintain a disciplined ticket. But the party aren't going great guns with the message. Which seems a decidedly strange thing, considering how critical a solid, loyal regional ballot is for the party's standing in the next parliament. 

Look at this historically. Take 2011. Alex Salmond's SNP secured 902,915 constituency ballots, and 876,421 in the regions. We shouldn't understand this as a straightforward 26,494 drop. The regional tally will include a decent whack of folk who voted for other parties in constituency contests. My favourite 2011 illustration of this dynamic was Ayr. A straightforward SNP vs Tory runoff, Conservative candidate John Scott secured 12,997 constituency votes, and a 1,113 vote majority over his SNP opponent. But in the region, the folk of Ayr gave the Tories only 8,539 votes, a drop of 4,458 on their constituency figures - and the SNP were the obvious beneficiaries of the Tory regional slump. Chic Brodie took 11,884 constituency votes, but Ayr's regional tally gave the Nats 14,377, an increase of 2,493 which put them 5,838 regional votes ahead of the Tories who'd routed their constituency campaign.  

So what about Labour? In 2011, Iain Gray took 630,461 constituency papers and just 523,559, losing over 100,000 votes between ballot papers. Like the SNP picture, we shouldn't oversimplify what was going on under Labour's grand totals. It almost certainly wasn't a tit for tat drop. Voters will have moved in, and out of, Labour's constituency and regional columns. But this was a discernibly squishier performance than the Nats in a closely contested campaign. In the event, Labour holds in constituencies in their traditional heartlands staved off some of the harsher consequences of this "voter promiscuity" in 2011. But if all does not go well for the party in its constituency battles in Glasgow and elsewhere - a gap of anything like 100,000 people is seriously going to hurt. And this, before we get into questions of differential turnout.

Part of me wonders if the electoral map in 2016 doesn't encourage an awkward dynamic for Kezia Dugdale, likely to encourage opponents of the SNP to lend her their constituency ballots, while distributing their regional votes elsewhere.  

Imagine you are a Labour voter of what we'll call the Alex Massie tradition. You voted No in 2014. You don't much care for the Nats. You live in a constituency where the Tories or the Lib Dems cannot prosper, where they're not even in the running. What do you do? Option One: damn the arithmetic and vote for what you believe in. If the local Tory or Liberal Democrat gains only a couple of thousand votes? Well, you salute their efforts. Alternatively, you might consider Option Two: use your constituency vote tactically vote for the Labour candidate most likely to frustrate the SNP. In Leith, say, you might support Lesley Hinds. In Glasgow, you might take a punt on Johann Lamont against Humza Yousaf. 

If Option Two seems attractive to you, however, there is a snowball's chance in hell that you're going to stick with the Labour party in the regions. You might also have a soft spot for one of the smaller parties who are only really in contention in the regional list. Perhaps you favour Brexit, and want to see a David Coburn, rolling around Holyrood, blaggarding the European Union. Perhaps Patrick Harvie seems like a sound character, and you want a decent Green delegation in Holyrood, advocating environmental concerns.  In local elections in areas in which they do well, the Greens are pretty transfer happy from a curious range of sources, including Scottish Tories. Perhaps you'd like RISE, modestly, to rise.

Given the parts of the country where Labour remains strongest against the SNP, I'd suggest the calculating anti-Nat and the floating, unpartisan, split-ticket voter is far more likely to cast a - perhaps doomed - constituency ballot for them rather than the vital, life-giving regional support Dugdale needs to survive. In fairness, recent polls suggest Labour's performance across the two ballots is pretty solid, at a (dismal) 18% to 19%.  A squishy list vote may be the least of her concerns. Time will tell.

14 April 2016

Red meat from Ruth Davidson, but where's the beef?

"End automatic early release!" It's red meat for the Tory base, and hearty stuff. Ruth Davidson's Scottish Tory Manifesto, published yesterday, contains the following passage on the party's proposals for criminal justice:

"We have long campaigned for the scrapping of automatic early release. The changes brought in by the SNP affect only 3% of prisoners (those on long sentences), but we believe the presumption for all sentences is that they should be served in full, with additional discretion for the Parole Board. The time offenders spend behind bars should be decided by judges and not politicians. Ending automatic early release would mean offenders serving the sentence handed out and spending more time in rehabilitation."

There are a few well-rehearsed ironies about this. Automatic early release was brought in across the UK by John Major's Conservative government in 1993. If every prisoner is going to serve his whole tariffs behind bars, it is far from clear what "additional discretion" she thinks the parole board might legitimately exercise. Perhaps she envisages some modest, compassionate exceptions to the massive programme of incarceration she is proposing. But I'm more interested in the resource implications of all this. 

To come even to a sketchy understanding of these costs, we have to take a closer look at (a) the automatic early release rules which currently apply and (b) the characteristics of the Scottish prison population.

At present, the amended Prisoners and Criminal Proceedings (Scotland) Act 1993 governs early release. So how does it work? The law distinguishes between (a) short term prisoners and (b) long term prisoners. Lifers are handled differently, serving the punishment part of their sentence, before parole may even be considered. Angus Sinclair, for example, received a 37 year punishment part for the murders of Christine Eadie and Helen Scott, forever associated with the World's End pub in Edinburgh. For Sinclair, life means life.

The 1993 Act defines a short term prisoner as someone serving a prison term of less than four years, with a long term prisoner defined as a convict sent down for four years of more.  A short term prisoner is entitled to be released unconditionally from prison after serving half their sentence. A long term prisoner is entitled to be released on licence -- and thus is vulnerable to recall if they get up to mischief -- after serving two thirds of their prison sentence. The rules for prisoners serving longer sentences were tweaked at the tail end of the Holyrood session, limiting automatic release to the last six months of a long term prisoner's sentence.  This, Ms Davidson wants to sweep all this away. 

Fine. But what would it cost? And how many people are we talking about? Official statistics show that the average daily prison population continues to hover around the 8,000 mark. Figures from July 2015, for example, gave an daily average population of 8,062. The overwhelming majority of these men and women are serving "short sentences" - sentences which would double in length under a Davidson administration. Take a look at this Scottish Government chart from December 2015, on receptions to prisons by year, and by sentence length.

Taking 2013/14, you can see there were around 1,000 prisoners sentenced to prison terms of more than 2 years but less than 4 years. A further 2,500 individuals entered jail with a prison tariff of 3 months or less, with around 3,000 people serving between 3 month and 6 month sentences. Finally, over 5,500 serving sentences of between 6 months and two years. All of these incoming prisoners - under Davidson's plans - would end up serving double their current terms behind bars. The Scottish Tories proposing to double the prison terms served by - roughly - 12,000 people.

Now, you may or may not have sympathy with the principle of this policy, either on grounds of vengeance, or transparency. I'd merely note that our judges aren't idiots. They understand perfectly well that those they sentence to prison terms will be released once they've spent sufficient time in prison. They aren't hoodwinked by early release. Indeed, some judges may well factor the real term to be spent incarcerated into their sentencing. 

But ask the money question. Do a fagpacket calculation. Consider the implications. Under Ruth Davidson's plans, every single short term prisoner will be serving double the period of incarceration they are currently serving, during which period, you and I will be picking up the tab for their food and housing, their supervision, and their modest diversion while behind bars.

Let me remind you also: the costs of doing so are not insignificant. The average annual cost per prisoner place for 2013–14 was £33,153, excluding capital charges, exceptional compensation claims and the cost of the escort contract.

You may well think this a tariff worth paying. But it is no small amount of money. And this estimate is just the revenue cost. We haven't even begun to factor in the implications of cancelling early release for capital spending, or the social costs of further swelling the population of our Victorian prisons, with implications for the quality of life, the degree of supervision available, and the availability of rehabilitation services. 

Scotland simply does not have the space in its overstuffed prisons to accommodate a significantly larger prison population. Overspill facilities will have to be built, and funds allocated and buildings planned to ensure that our prison population is kept in appropriate conditions with a decent minimum standard. And that takes money, and that takes time.  But what does Ms Davidson say about how she intends to meet these very significant revenue and capital costs? Sod all. What plan does her manifesto outline? No plan at all. And where will the additional cuts fall to meet the significant costs of this policy? Answer came there none. 

No doubt Ms Davidson's answer, if challenged about any of this would be "We're just the plucky opposition. We're losers. We're only trying to give Scottish Labour a kicking: not to get into government." But that won't do at all. "I've no chance of power and therefore I should be able to make whatever uncosted pledges I like" shouldn't cut it either.  Just ask that mighty master of detail, David Coburn MEP.

If Ruth Davidson wants her party to be the serious party of opposition in Holyrood, she's going to have to take her own policy platform much more seriously. If this massive, uncosted justice pledge is anything to go by -- like her photo ops and her "blue collar" rhetoric -- it's all still a big joke.