Category: Scotland

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.

Harry Burns on mortality figures

I’ve recently joined the board of Barony Housing Association, which is part of the Wheatley Group, and consequently was invited to a institutional lecture by Prof Sir Harry Burns, who was considering mortality statistics in Scotland and the UK.  He made the case that, despite the emphasis on nutrition in much of what’s written about public health, nutrition is not at the core of the problems.  Scotland’s nutrition-related mortality follows a pattern, astonishingly, which is not much different from Finland’s.  Finland has an exemplary nutritional policy and lots of virtuous practices, and Scotland (notoriously) doesn’t.

The real difference in mortality, he argued, occurs in younger age groups; and the primary issues for the mortality of younger adults are drugs, alcohol, violence and suicide.  All of which are social.

Evidence on benefit takeup

The Social Security Committee of the Scottish Parliament is reviewing the issue of take-up, with a particular focus on the introduction next year of the disability benefits they’ll be taking over from the DWP.  I gave evidence to a witness session last week, alongside David Bell and Mark Shucksmith.  The video is here.   My written evidence is in the agenda papers; the verbal evidence is now out in the  Official Report of proceedings.

I’m sceptical that much can be done about takeup.  I’ve long argued that the problems of ignorance, complexity and stigma played as much of a role in relation to non-means tested benefits as they do for means-tested ones.  Putting a kinder face on benefits will not go to the root of the problems.  Disappointingly, the Scottish Government has opted largely to replicate the existing system, with all its muddles, anomalies and confusion.