Category: Scotland

A Human Rights Bill for Scotland: submission to a consultation

The Scottish government is consulting about the introduction of a Scottish bill to incorporate human rights law into Scottish legislation.  The exercise is somewhat limited by the terms of the devolution settlement, which largely reserves ‘equal opportunities’ to Westminster – it’s in schedule 5 of the Scotland Act 1998 , but there are other things that the Scottish Parliament could do.

I’ve responded to some of the questions, and I am duplicating my response in the passages that follow.

1 What are your views on our proposal to allow for dignity to be considered by courts in interpreting the rights in the Bill?

‘Dignity’ is subject to interpretation. Nordenfeldt, in an article on “The varieties of dignity” (Health Care Analysis, 12(2) 2004), identifies four different meanings: dignity as merit, as moral stature, as identity, and as human worth. Only the fourth of these is universal. The former Chief Rabbi, Jonathan Sachs, claimed a fifth: the ‘Dignity of Difference’, arguing for a view of dignity that was both collective and cultural.

The incorporation of the principle of ‘dignity’ is unlikely to have the legal effect that the Scottish Government desires. A recent judgment in the European Court of Human Rights upheld the right of a Roma woman to beg, on the basis that the right to beg was an expression of her dignity (ECHR 2021, Lacatas v Switzerland, 14065/15) – but the right to have enough resources not to beg was not protected.

3 What are your views on the types of international law, materials and mechanisms to be included within the proposed interpretative provision?

The Human Rights protected by international law are intended to establish a universal minimum. Equalities, social protection, economic rights, social rights, public sector duties and access to justice are not really part of that. They are, rather, rights of citizenship, going well beyond the limited aspirations of human rights.

Laws that focus specifically on Human Rights have had at most a limited effect on the operation of the law in the UK. According to solicitors Mishcon de Reya (Submission to IHRAR’s Call for Evidence, 2021), Human Rights were cited in 538 legal cases from 2000 to 2021: the courts made a Declaration of Incompatibility in only 39 of those cases, and 8 of those were overturned on appeal. (The main impacts in those very few cases have related to immigration and mental health issues.) The Scottish Government cannot rely on the incorporation of Human Rights law to address the broad range of problems identified in this consultation.

5 Are there any rights in the equality treaties which you think should be treated differently?

The Scottish Government is legally limited in what it can do for protected groups, because that would be liable to violate the reservations of the Scotland Act, but it can pursue equality more meaningfully by other routes. The Child Poverty Strategy is an example.

12 Given that the Human Rights Act 1998 is protected from modification under the Scotland Act 1998, how do you think we can best signal that the Human Rights Act (and civil and political rights) form a core pillar of human rights law in Scotland?

The Human Rights Act 1998 only committed governments and their successors to uphold the minimum standards established in international law. This is a floor, not a pillar.

15 How do you think we should define the groups to be protected by the equality provision?

The protected characteristics identified in the Equality Act 2010 leave gaps and ambiguities. The many gaps include, for example, national origin, locality, social class, accent, inequalities of birth, fortune and discrimination through favoritism. The Scottish Government may not have the competence to amend the Equality Act, but it can at least take action on these issues as they relate to the conduct of public policy in Scotland.

16 Do you agree or disagree that the use of ‘other status’ in the equality provision would sufficiently protect the rights of LGBTI and older people?

Disagree. Age, sexual orientation and gender reassignment are already protected in the Equality Act. It is difficult to see what difference further legal incorporation will make.

19 What is your view on who the duties in the Bill should apply to?

I support the principle that duties should apply to any body carrying out devolved public functions.

33 What are your views on our proposed approach to ‘standing’ under the Human Rights Bill?

The extension of ‘standing’ to permit persons with a ‘sufficient interest’ to initiate legal action is welcome. However, it still falls some way short of what is needed to protect economic, social and cultural rights.

In the USA, legal action takes two other forms not currently permissible in either England or Scotland:

● the use of class actions, extending beyond group litigation to people who are affected but not participants; and
● the presentation of a Brandeis brief, a rule of evidence which has been available in the USA for more than a century. The brief makes it possible for courts to consider non-legal submissions from social scientists, reviewing evidence of the overall economic or social impact of a case. Evidence in this form can be taken from amici curiae, persons or bodies not otherwise party to the action.

In so far as these are rules about due process in a court of law, introducing these measures would fall wholly within the competence of Scottish law-makers.

36. If you do not agree that existing judicial remedies are sufficient in delivering effective remedy for rightsholders, what additional remedies would help to do this?

There need to be routes permitting rapid, authoritative, low-cost access to legal redress. As things stand currently, judicial review of administrative action can only be granted when other measures have been explored and failed. This creates barriers to justice, and the process is simply too slow to protect people with limited resources. There have been rapid, urgent actions taken on behalf of some people, such as migrants facing illegal deportation, but there is no obvious equivalent route for people who have been left without money for food this week. For most, there is no effective way of  getting legal redress before the penalty, and the problems, have been suffered.

40 What are your views on our proposals for a Human Rights Scheme?

Impact assessments can act as a useful guide to administrative action, but in practice (for example, in relation to gender or the environment) there has been a tendency for some bodies to claim that there is nothing to consider when they have simply failed to see the implications. Assessments need to be reported, collated and subject to scrutiny in order to be effective in guiding practice.

 

For those who want to add their views, the full consultation, which closes on the 5th October, is available here.

 

 

 

 

Citizenship in an independent Scotland

The Scottish Government is keen to represent Scotland as an open, inclusive society.  It says so twelve times in a position paper, published as part of a series on Building a New Scotland.  It could be questioned whether this document has any status at all, because constitutional matters fall wholly outside the legal powers of the Scottish Government, but it’s nevertheless interesting to see what the SG makes of a basic question: in an independent Scotland, who would be its citizens?  On one hand, we have a document that is intended to be accessible and welcoming to people from a wide range of nationalities.  On the other, there are clearly defined rules which would exclude those people from citizenship.

First, the rules. The document explains on page 1:

Under the Scottish Government’s plans, you would automatically be entitled to Scottish citizenship on the day Scotland becomes independent if you are already a British citizen and you:
• live in Scotland (described in law as ‘habitually resident’)
• were born in Scotland
• have a parent who was a British citizen born in Scotland, or
• previously lived in Scotland for at least ten years, or five years as a child, with a pro rata calculation for young adults.

Note the critical point: this only applies if you are already a British citizen.  The point is expanded on page 24:

The interim constitution would establish that the following groups would be entitled to Scottish citizenship at the point of independence:
• British citizens habitually resident in Scotland
• British citizens born in Scotland but living elsewhere
• British citizens living elsewhere but with a parent who was a British citizen born in Scotland
• British citizens living elsewhere who previously lived in Scotland for at least ten years, or five years as a child, with a pro rata calculation for young adults.
This is an open and inclusive offer of citizenship to all people who live in, were born in or have a close and enduring connection to Scotland and are British citizens at the point of independence.

I think we have different ideas of what an open and inclusive policy looks like. This directly excludes a large number of lawful, long-term residents.

Perhaps, you might think, they don’t really mean that only British citizens can expect to be Scottish as of right.  The document makes great play of Scotland’s present willingness to extend rights to outsiders:

Scotland already has an inclusive approach to civic participation and social protection. …  Most rights, entitlements and obligations in Scotland are based on residence rather than citizenship. For example … In Scotland, any lawful resident with leave to remain under the current UK immigration system may vote, 30 and any lawful resident settled in Scotland (e.g. with indefinite leave to remain, EU settled status or pre-settled status) may stand for office in the Scottish Parliament or in local government.

The document explains that people who are resident, but not citizens, will be welcome, and they will have a shedload of rights, so it hardly matters if they’re not full citizens (page 10). But the same text goes on, on the same page,  to list those rights which will be exclusive to Scottish citizens.  Those rights include “the right  to live and work without restriction in Scotland and enter and leave the country at will.” Surely they don’t mean to deny such rights to lawful residents?  If they don’t, why write this?

There are two apparent contradictions in this policy.  One lies in how the document is presented.  If we take this rules as they stand, they exclude long term residents of Scotland with a right to reside. If you’re French, or Bulgarian, or Chinese, or Ukrainian, they don’t mean you.  Which makes it somewhat puzzling that the Scottish Government has neverthless translated the document summary into those four languages, along with several others.

The other contradiction occurs in a short comment on page 24.  After explaining that only British citizens are included, the text continues:

Some people may not wish to become Scottish citizens in this way. This could be because some countries place limits on their citizens holding additional nationalities.

“Some countries” object – but Britain is not one of them.  Anyone who is both a UK citizen and the citizen of another country (as I am)  will not be affected this way. So why is this sentence here?  It seems likely, as so often happens, that this text is the work of more than one hand, and some body in this process has insisted that the text had to be revised so that it only applied to British citizens, and it’s been done clumsily.

 

Scotland needs a revising chamber

The UK government has decided to nullify the law recently passed by the Scottish Parliament, which aims to simplify the process of self-identifying oneself as being in a different gender from one’s sex at birth.  I don’t propose at this stage to discuss the principle of self-identification – I may return to that later.  I do think, however, that the legislative process is important for clarifying the constitutional place  of Scotland within the UK.

To begin at the beginning, the UK parliament is a sovereign body.  That does not mean that it is in control; it means that the UK parliament is the source of authority for all laws passed within the UK.  This is very different from a federal government, in which powers and authority are delegated from the member states – David Cameron’s claim, after the 2014 referendum, that Scotland would be the most powerful devolved parliament in the world, is simply asinine.  The idea of ‘devolution’ depends on the principle that devolved governments have to be authorised to do things by the central government.  That summarises the current status of Scotland.

Second, the UK parliament retains the right to legislate, not just for the UK as a whole, but specifically for Scotland.  That is the basis of the ‘Sewell motions’, which have been passed at the behest of a Scotish Government that otherwise cannot fit the legislation into its busy timetable.

Third, there is no legislative area which is reserved to Scotland.  The authority of the Scottish Parliament is wholly dependent, in law, on the continued authority of the UK parliament.  The UK government has taken advantage of this to intervene in the affairs of Scottish local authorities, which are part of the services devolved to the Scottish Parliament.

And then, finally, there is s.35 of the 1998 Scotland Act, which states:

If a Bill contains provisions … which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters, he may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent.

That is what is happening now.  There has been talk of legal action to object to the use of s. 35, but I think it highly unlikely that such an action will succeed; the Supreme Court has already taken a dim view of attempts to expand the powers of the Scottish Parliament.

Professor Aileen McHarg has been cited as saying that there are alternatives to the use of s.35.  These alternatives include

  • amending the Equality Act 2010 to take account of the Scottish legislation,
  • introducing a bill to overrule the Scottish law
  • and taking the Scottish Parliament to court for exceeding its powers.

The first two would take far more parliamentary time, and in the meantime any potential conflict with equality law would not be resolved.  The problem with the third option is that, simply put, the Scottish Parliament hasn’t exceeded its powers.

This is not just about legality, however; it’s also about politics.  This legislation is controversial, but it offers nothing like the challenge to the devolution settlement implicitly represented by the (untested) Scotland (Referendums) Act 2020.  The UK government has been looking for ways to curb the enthusiasm of the Scottish government, and gender recognition looks like a plausible target.

The position of the Scottish government has however been undermined, in my view, by the process it has followed.  Amendments to the legislation were rejected outright: those included several attempts to assert the relevance of the 2010 Equality Act, protection of single-sex spaces and to include impact assessments. These were all met with the questionable, often repeated assertion that there was no impact on the application of UK equality law that required consideration.  Of course the legislation aimed to alter the categorisation of protected equalities: that, surely, was the point.

The government of Scotland, as currently constituted, is principally based on the unitary authority of the Scottish Parliament.  There is no other mechanism by which laws can be scrutinised and revised, except for reference to the UK parliament.  If the Scottish government wants to be able to argue that it should be left alone to make decisions relating to Scottish law and government, and that any intervention by UK authorities is unreasonable, it has to be able to demonstrate that appropriate safeguards are in place.  It cannot do so within the current institutional framework.   Scotland needs a revising chamber.

A trial for rape

If I’ve been inactive during the last week, it’s not least because I’ve been otherwise engaged.  I’ve been on the jury for a trial in the High Court, where a man was accused of rape.  I am not at liberty to reveal any part of the jury’s discussions, but I can comment on the law.

The law relating to rape was restated in Scotland in the Sexual Offences (Scotland) Act 2009.  Section 1 begins in these terms:

If a person (“A”), with A’s penis—

(a) without another person (“B”) consenting, and

(b) without any reasonable belief that B consents,

penetrates to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B then A commits an offence, to be known as the offence of rape.

There are several elements in this. The most important are

  • the identity of the person,
  • the act of penetration,
  • consent,
  • intention, and
  • the ‘reasonable belief’ of the perpetrator.

The case was found to be ‘not proven’: a  verdict available in Scottish law that is treated in practice as equivalent to acquittal, but which is distinctly not the same as ‘not guilty’.   There is a presumption of innocence, and it is for the prosecution to establish the case. That must extend to every aspect of the crime, and in this case it did not.

I’ve commented previously on some of the problems with the law relating to rape, particularly the focus on consent.  This case has made me aware of another.  The statute adds the rider of a ‘reasonable belief’ in consent to a whole slew of sexual offences, including rape, exposure, voyeurism and drugging people.  “Even the devil”, the legal proverb runs, “knows not the mind of man.” Rape and most other sexual offences should be a matter of strict liability: what matters is how people behave.

Towards a Scottish independence referendum: widening a crack in the law

The Supreme Court is currently hearing a question of whether or not the Scottish government can hold a referendum on independence.  On the face of the matter, the constitution of the UK is a reserved matter, and that ought to imply that the Scottish Government doesn’t have the power to do it.  From the submissions being made on both sides, the position is not so certain.

The wording of the Act defines competence solely in terms of legislative activity.  Sections 29 and 30 deal with ‘legislative competence’; Schedule 5 makes it clear that constitutional matters are reserved, and so not within the competence of the Scottish Parliament.  And there, one might think, the matter ends. Only it’s not so simple.  The submission being made by the Advocate General for Scotland emphasises that any referendum would be advisory. It may still be the case, though this has still to be decided, that the Scottish Government doesn’t actually need a law to conduct a referendum; it could be seen as a matter of administrative competence, no different in principle from a mass survey of the population.  Accordingly, the counsel for the UK government is trying to get the Supreme Court to agree that the Scottish Parliament must first pass a law on which a decision can be made.  Passing a law would bring the measure directly and unequivocally into the provisions of the Scotland Act, and a UK decision made on that basis would certainly be negative.

The Scotland Act defines the legislative competence of the Scottish Parliament. It largely fails, however, to consider the actions of the Scottish Government (still referred to, in the Act, as the Scottish Executive).  Normally this would rest on a definition of powers – the actions of government can be within its powers (intra vires) or beyond them (ultra vires).  The ultra vires rule is well established in UK law: the classic case is AG v Fulham Corporation (1921), in which a local authority was blocked from operating laundry facilities because they had no explicit authority to do so.  A public authority can only act in accordance with the power that it has legitimately been given.

The term ‘ultra vires’ appears in the explanatory note to section 107 of the Act:

“This section forms part of the set of provisions which deal with the handling of ultra vires acts by the Scottish Parliament or the Scottish Executive.”

Donald Dewar explained his understanding in these terms:

“it is not in the power of the Scottish Parliament to change the constitutional arrangements … A  referendum that purported to pave the way for something that was ultra vires is itself ultra vires.”

The first of these examples, however, is referred specifically to the legislative remedies available to the UK government; and the second statement, by an individual MP during a debate, cannot taken as evidence of the intention of Parliament.

It could certainly be argued that the legislators were expecting the normal ultra vires rules to apply – but the law is not clear, and Jim Wallace failed in his attempt to fill the gap. If the Scotland Act had referred directly to administration intra vires, or simply to ‘competence’ rather than ‘legislative competence’,  the Scottish Government could be held bound not to exceed that authority.   However, the Act doesn’t say that.  There is a hole in the legislation, and the Scottish Government  hopes to be able to prise it open further so that it can let the light through.

23rd November:  The Supreme Court has made its judgement, based on the simple principle that the Scottish Parliament does not have the power to make such a law. On the specific point of ambiguity, they held that the reservation of powers could not be taken to be confined only to legislative functions, and that it must include non-legislative powers.

 

Designing the National Care Service

Common Weal has offered a blistering critique of the process for designing the new National Care Service in Scotland.  They argue that it’s been designed for top-down governance, rather than service delivery, and that pledges to ‘co-design’ the service with users and carers have proved empty.  Their criticism seems to me justified. The design, and the patterns of governance which are being proposed, are both centralised and corporatist.

I don’t know, to be honest, whether a service that is ‘co-designed’ is likely to be better than one that isn’t.  People who have experience of the system are often conditioned by that experience to look for tweaks and minor improvements, rather than thinking how things might be done differently. The needs of older people with limited mobility, adults with mental health problems or people with developmental disabilities are rarely the same, the interests of ‘carers’ and ‘service users’ vary hugely, and we cannot imagine that one set of service users can speak for others.

I have written recently about some of the long-standing problems in social care: fragmentary, insecure and expensive services, the misplaced attempt to create ‘markets’ in disparate fields and the treatment of ‘personalisation’ as if it meant a selection of services from a shopping list.  I argued there that people need flexible forms of provision based on personal relationships, rather than a commoditised response. If a National Care Service is going to work, it needs to be conceived in terms very different from the old models.

The Scottish Census of Health and Wellbeing: inept and possibly unethical

There’s some controversy in Scotland about a census of ‘health and well-being’ that’s being asked of schoolchildren of different ages.   This questionnaire seems to have been put together by a committee, all of whom wanted their particular issues to be included and addressed.  It’s  one of the worst designed questionnaires I’ve seen in years.

The area that’s attracted most concern relates to questions about children’s experience of sex. I found a copy of the census questionnaire from a local authority website, and was taken aback not just by the most controversial questions, but by the whole exercise.  I have no particular expertise relating to children’s health, but I taught research methods for more than 25 years, and this is not the way to do things.

First question: why is this a census?  Censuses are intended to give a comprehensive, precise count of issues.  There are well-known problems in doing this, because systematic non-response leads to systematic biases in the results.  Several local authorities have opted out, and many pupils will. The count will be meaningless.  What matters – the same as any other quantitative questionnaire – will be the relationship between answers: for example, whether there is a relationship between educational experience and negative body images.  We do not need a census to do this. It can be done at least as well, and probably better, by a series of smaller-scale social surveys.

Second question: in what circumstances does it make sense  to put together a questionnaire that is this long?   There are 61 questions, but because there are sub-questions,  pupils are actually being asked to answer, by my count,  126 distinct questions.  The rubric claims that the questionnaire should be completed in 20 to 40 minutes. To do this in 40 minutes a pupil could have to answer one question every 20 seconds.  Even if the questions weren’t sometimes difficult, this is wildly unrealistic, and it raises questions as to how valid the exercise can be: the exhausted respondents will skip, fabricate answers to finish or simply give up.

Third question: has the questionnaire been piloted and validated? There are indications it might not have been: the length of the questionnaire, the complexity of the language used, and the validity of responses to deeply personal questions.  Pupils are supposed to know what ‘intimate touching’ means (q 49) and whether an experience amounts to ‘penetrative vaginal sex’ (qs 50 and 51).

Fourth question: what measures have been taken to protect vulnerable respondents?   Some children will be distressed by the questions.  Some of that distress is predictable – for example, from those who have been subjected to sexual abuse.  Every school administering a questionnaire should have someone with specialised competence standing by to offer support in the event of distress – and that cannot be the teacher tasked with supervising children using computers, because it would not be possible for that teacher to break off for a distressed pupil before the questionnaire is complete. The FAQs issued by the Scottish Government say this:

What happens if a child or young person needs help, or wants to discuss something, after taking part in the Census?  At the beginning and end of the questionnaire, children and young people will be informed that if any of the Census questions have made them think of any problems, or has raised any issues they are having, then they are advised to speak to someone in relation to the information they have provided in the Census.  For example, if pupils are having problems with other pupils (e.g. feeling that they are being bullied), they are advised to talk about this with their parents / carers / teacher / support worker, etc.

That is not good enough.  This project should not have passed ethical review.

So, you may reasonably ask, what should the government have done instead?  That’s easy enough to answer:  a series of much smaller questionnaires, based on proper samples, administered by people with a competence in the field, and supported by people capable of responding to any distress.  It should include a proportion of open, qualitative questions. Good social research starts with listening.

Poverty in Scotland 2021: a report from the JRF

I was listening today to a seminar for Challenge Poverty Week, covering the latest report from the Joseph Rowntree Foundation on Poverty in Scotland . The report identifies six main ‘priority groups’ which put children at a greater risk of poverty.  The groups are

  • families with children under 1
  • larger households
  • single parents
  • people in minority ethnic groups
  • families with a disabled person, and
  • workless families.

There are no great surprises in that.  I think, from memory, that this pretty much reflects the findings of the Royal Commission on the Distribution of Income and Wealth in the 1970s, with a substitution: pensioners don’t feature, leargely because this is about child poverty, but the position of minority ethnic groups has been recognised.

The next question, however, is what to make of the information. Shona Robison, for the Scottish Government, clearly thought that a focus on these priority groups was the way to break the ‘cycle’ of poverty.  She suggested that the government would be offering ‘bespoke’ responses to families in this position and recommended better paid work as the way out.

There are problems with that.  The place to start, perhaps, is with the statement that these people are at greater risk.  Yes, the risk is higher, but that doesn’t mean either that all these people are poor (the highest proportions are those in minority groups, and people who are disabled) or that people are trapped in poverty.  Low-income poverty is a position that many people pass through.  Very young children are important, because women’s capacity to earn is impaired.  Worklessness is important, but work is no guarantee of coming out of low income.  Precarious work is widespread, and part of the problem.

The other main problem relates to the assumption that people and families can be targeted on an individual basis.  Poverty is a moving target, and most attempts to deal with it by targeting are doomed to failure: people’s incomes fluctuate, their household status changes, they do whatever they can to improve their situation.  What we need is not a set of individualised responses, but a reliable, predictable foundation of the benefits and services that make it possible for people to secure their position.

If not now, when?: a report on social renewal

The title of the new report from Scotland’s Social Renewal Advisory Board is, ‘If not now, when?’  It’s a great title, but not a great report.  There are some areas about which I’d have minor reservations, and others where I’d have major ones.  The minor reservations are, for example, the recommendations that:

      • “It is time to trust (third sector and community) organisations to do good work without onerous requirements.”  Have we forgotten the abuse of charitable status that led to the reform of charity regulation?  Look up ‘Moonbeams‘ on Wikipedia.
      • “There are several themes that run throughout the report, again with links to Christie.  We need to make sure we embed the best partnership and practice.”  Partnership is already embedded.  On the positive side, it can focus attention on issues that get overlooked, such as poverty or learning disability, and it puts agencies into contact (such as the NHS and the police) where there didn’t used to be much.  On the negative side, it eats time and resources, and it can be as much an obstacle to delivery as a help.  The Christie Commission took the misconceived  position that every organisation should have a ‘common set of duties and powers’, including  a general power to ‘advance well-being’ (pp 46-7).  That would make every agency responsible for the work of every other agency.   Do we really want the health service to share the responsibility for developing railways?  If we want agencies to work together, we need an appropriate functional division of responsibilities, effective liaison at the sharp end, and budgeting practices that don’t set up walls between agencies.
      • “Hate crime must be addressed for all affected groups. We want to see significant investment in preventative approaches to hate crime, based on evidence of what works. … we want to see a significant improvement in the accessibility of reporting a hate crime or hate incident over the next five years so that hate crime reporting is more closely aligning with actual incidents. We also want to see an increase in people reporting street harassment to Police Scotland whenever they experience it.” This is saying nothing that isn’t already happening.  Yes, as someone who’s been responsible for maintaining a synagogue, I’ve been on the receiving end of hate crime; no, sharpening the criminal law is not going to stop it.

All right, these points are not really that ‘minor’.  But the ones that got my goat are in a different class.  On universal basic services, the Board has this to say:

“calls on the next Scottish Government to adopt the principles of ‘Universal Basic Services’  … In particular, the Scottish Government should undertake pilots into specific actions that could deliver reductions in energy, travel, housing, childcare and digital costs … These could include: … Social tariffs for broadband and other essential digital services – providing free and discounted digital access to low-income families across Scotland. …”

This misses the point of universal basic services completely.  They’re not meant to be targeted on people on low incomes; they’re supposed to be there for everyone.  I carried on to specific example of broadband, because it shows the point clearly – they’re talking about means-tested or passported services, not universal ones.   We should be looking at open-access, community-based broadband.

And then there is anti-poverty policy, where they recommend that the Scottish Government should “develop an approach to anti-poverty work,
including personal debt, that is designed around the needs of the individual”.  Of course I want to see well-funded advice and support for individuals, but it’s not an anti-poverty strategy.  It’s not even an anti-debt strategy.  People are in debt because (a) their incomes are inadequate and (b) the legal terms on which debt is enforced are pernicious.  The Scottish Parliament has the power to do something about both of those.

Scotland is not ready for an independence referendum

The First Minister of Scotland has been pressing for a further independence referendum, and the UK government seems determined to refuse the request.  I am not sure that either party means what it says.   If the polls are to be believed, there is a narrow majority against independence; and in a time of great insecurity, with the difficulties of leaving another union all too apparent, many voters will be apprehensive about what a vote for independence might mean in practice.  The longer the process, the more likely the movement for independence is to gain in credibility and support.  If the UK government genuinely wishes to maintain the Union – which is uncertain – a proposal for independence is far more likely to be defeated if it takes place very soon.

On the other side, one has to ask whether the Scottish Government really is prepared for a referendum campaign that will avoid the traps that the last one fell into.  During the long campaign before the 2014 referendum, the Scottish Government presented a ‘White Paper‘ with specific plans for action.  Alex Salmond told the electorate that this is what they would be voting for.  That was a miscalculation: it meant that every detail that people disagreed with became a reason to vote against the deal.  The debate about currency was an illustration: units of exchange are not decided exclusively by governments, there was no need to commit to any specific plan, Scotland could use multiple currencies (it already trades oil in dollars)  and in practice no-one can stop people accepting trades in foreign currency.  Committing the country to a specific single policy outcome was unnecessary and destructive.

Similarly, the draft Independence Bill went off-track when it started to legislate for future policies, such as sustainability or the possession of nuclear weapons, which serve no useful purpose in a constitutional document.  None of the constitutional issues that have to be nailed down was clearly settled.  The draft Bill left gaps in terms of rules of recognition (such as delegation of authority to ministers or to local government), change (such as how to amend the constitution) and  adjudication (such as the power of the courts).  It assumed that there would be only one legislative chamber, which could not possibly have the capacity to deal with national legislation; it proposed no constitutional limitations on the power of government.  I argued at the time that Scotland’s great strength was in participative public engagement, and that what Scotland needed to have was an extended period of discussion about constitutional arrangements.   That discussion has not happened yet.

An early referendum would require the Scottish Government to go into the campaign either with another White Paper – a settled prospectus – or with a promise to have a discussion in time to come, something that would depend largely on on trust.  Neither or those is a winning proposition.