Choo, choo. At the risk of repeating myself, we really have to nail this one down: the Scottish Government does not have the legal power to take railways into any kind of public ownership. There aren't shades of grey here. There aren't knotty legal complexities. It is clear as day. Clear, apparently, to everybody except the new leader of the Labour Party.
Interviewed by Gary Robertson on BBC Good Morning Scotland this morning, Jeremy Corbyn decided not to retreat from the inaccurate charges he laid at the door of the Scottish Government last Sunday. Instead, he chose to reiterate and elaborate on his allegations (from 02:40:00 in). And it is sorry, sorry stuff.
Robertson: "You also said on Sunday that they [the SNP] were behind the privatisation of ScotRail. Do you accept that that was wrong?"
Corbyn: "No I don't think it was wrong at all, because I think - again - they could have taken a different option and could have pushed for public ownership rather than handing it over to the Dutch public."
Robertson: "But that was about - again - that was about the franchise, wasn't it? Their argument is that in 1993, that was when ScotRail was privatised."
Corbyn: "The franchise, yes. But I do think they had a choice, and they could have exercised it to ensure that ScotRail remained - or, er turned, rather - into full public ownership. Surely that would be a much better way of doing things. And indeed the Labour policy, overall, is to return the franchises and the rail operating companies into public ownership, so that we all get the benefits of the rail service and the profits that go with it."
This is a mess. Actually, it is worse than a mess: it is a sleekit politician's answer. And worse, I'm afraid, it is a lie. So let's strip it all back to basics. If Holyrood passes legislation which "relates to reserved matters", the law is void. If Scottish ministers act beyond their powers, they behave unlawfully and a costly and damaging trip to the Court of Session beckons. If we rummage through Schedule 5 of the Scotland Act 1998, which sets out these reserved matters, we find the "provision and regulation of railway services". Holyrood can't change the Railways Act of 1993.
And it is the 1993 Railways Act which sets out the legal process for tendering rail passenger services. This was the instrument of rail privatisation - not the Scottish Government's October 2014 decision to award the new tender to the Dutch company, Abellio. Only Westminster can change the rules. And what do we find in section 25 of the 1993 Act? Oh look. A provision which says - clear as day, black and white - that "public sector operators" can't be rail franchisees. And how are we defining public sector operators? That is any company or subsidiary which is majority owned by ministers, or civic government. That test binds the Scottish Government. That seems to catch the kind of operation Mr Corbyn has in mind.
The new Scotland Bill finally proposes to tweak the Railways Act to make it clear that, in future, section 25 will not "prevent a public sector operator from being a franchisee in relation to a Scottish franchise agreement." In future, a "people's Scotrail" will be possible, in Scottish Labour's campaigning phrase. This is well and good: a positive development which will allow the merits and demerits of a public sector bid to be explored during the next round of tenders. But on the 8th of October 2014, the Scotland Bill was a dim speck of light on the horizon.
On the 8th of October 2014, Lord Smith of Kelvin hadn't even held his first meeting with party representatives to negotiate the next stage of devolution. There was no timetable to change the tendering rules, no legislative proposal being scrutinised. Just wooly aspirations, a Tory government and a Labour party dragging its feet on the future powers of the Scottish Parliament. Until the ink was dry on Smith, and the Bill had been introduced, it was anything but clear whether Holyrood would be empowered to consider the kind of public sector bid the new Labour leader understandably favours.
But don't believe me. I refer you to the analysis of Kezia Dugdale's predecessor as Scottish Labour leader, Jim Murphy, who blogged that he wanted to:
“... see better, cheaper public transport. The Smith Agreement means we can have a ScotRail that is serving commuters, not shareholders. The current ScotRail franchise sees money going straight from the public purse to shareholders pockets. The incoming one will see Scottish public money support transport infrastructure in Holland. Neither deal is the best deal for Scotland when commuters are waiting on late running services, paying over inflated fares whilst being squeezed against train doors on overcrowded journeys. The best deal for Scotland is a People’s ScotRail, a railway company whose commitment is not to a group of shareholders or a foreign Government, but to the people of Scotland.”The merits of a public sector bid are one thing. But even the People's Scottish Jim for Scotland - not averse to throwing any old brickbat at the SNP - recognised that what he wanted to do with the railways wasn't yet legal. Even Mr Murphy declined to slag off the Scottish government for failing to do something which the law prevents them from doing. And yet, given a golden opportunity to clarify his remarks - in the interests of straight talking and honest politics - Mr Corbyn doubles down on his wrong-headed claims.
So taking all of that into account, a few questions. In what sense, Mr Corbyn, could the Scottish Government "have taken a different option" on rail franchising? What "choice" of "full public ownership" did the law give them? Are you seriously suggesting that failing to convince the UK parliament to change the law amounts to an SNP privatisation agenda in all but name? Does that seem fair to you? Do you think most people, listening to your interview, would have understood this was really what you meant? Or do you think the half-attending average punter would be left confused and deceived by your remarks?
You began by suggesting the SNP privatised the railways. Now that has morphed into a claim that they could have considered a public sector bid, but failed to do so, which was bad. But a thorough examination of the law shows us that the parliament in which you sit made it legally impossible for Scottish ministers to entertain the public sector bid you desire. The Scotland Bill, currently going through the parliament in which you sit, underscores the point and fatally undermines your argument. So in what sense did the SNP privatise the railways? Oh dear Jeremy. Straight talking, honest politics my foot.
I think I can, I think I can, I think I can, said the Little Engine That Could. But thinking doesn't make it so.