29 July 2016

"Hated Named persons scheme blasted as 'totalitarian'..."

I know, I know. I ought to be out eating duck gizzards and quaffing vin rosé -- and I am. But in the wake of yesterday's Named Persons judgment - further details here - I wanted to pick up just one element of the coverage of case, which warrants further scrutiny. This is pleasure, not business.

The word of the day, children, is "totalitarianism." The Daily Mail, whose rabid fulminations against the Named Persons schemes have been unrelenting, stick the word in their headline, and suggest in the body of the piece that the Supreme Court "blasted" the named persons scheme "as totalitarian."  In the Courier, the Christian Institute Colin Hart suggests Justices "even invoked the spectre of totalitarian regimes in its criticism of the plans." Brian Monteith weasels the word into his Edinburgh Evening News column, and even the Herald's readers get in on the act. Aberdeen's Press and Journal quote what they describe as a "devastating line" from the judgement: "The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers’ view of the world." 

The implications of these reports are all spectacularly unsubtle. The casual reader, leafing through the paper and spotting these stories, would be lead to understand that the Supreme Court had criticised the SNP government in general, and the Named Persons scheme in particular, as "totalitarian." Step forward, former Scotsman reporter David Maddox, who has returned to his roots with a new gig writing about politics for the Daily Express. Mr Maddox summed up the allegation neatly, if mendaciously, in a tweet yesterday: "So it is official ... a Court has likened SNP run Scotland to a "totalitarian regime." The meme did the rounds vigorously on social media. "A shocking assessment of the SNP" government one remarked. "A senior judge said this of them. Shocking."

And I grant you, on the face of it, these headlines don't look good for the Scottish Government. A senior judge, using inflammatory language like that? A bench of experienced jurists, slating the SNP's child protection measures as akin to the bloodiest and most sinister regimes the world has known in the last century? Remarkable.  

But wait: how does this -- how can this square -- with that important passage from yesterday's judgment, in which Lord Hodge described the purpose of the Named Persons scheme as "unquestionably legitimate and benign", without a peep of dissent from his colleagues? I know you are supposed to get more conservative as you get older, and heaven knows, judges aren't always the most liberal of spirits, but surely Lord Hodge wasn't suggesting that the - albeit flawed - Named Persons scheme was simultaneously "totalitarian", and "legitimate and benign"?

Of course he wasn't. Because Mr Maddox, the Daily Mail, Colin Hart, Brian Monteith, the Press and Journal are all - deliberately, or through their ignorance and incompetence - distorting the judgment to suit their intellectually dishonest political goals. I told you there would be spin about this judgment -- from both sides. There has been. I sympathised with journalists yesterday. We have the outcome of the court case -- a Pyrrhic victory for the Christian Institute -- but the Court's lengthy reasoning is more nuanced and hard to get your head around, never mind to bang out a pithy but clear few hundred word story about. Many journalists made a good fist of bringing their readers the essential facts, gesturing to the legal and political complexities of the case, even if they could not entirely account for it in their pages.

But what I find galling -- what I find indefensible -- is the wilful dishonesty which has characterised parts of the right-wing media's reporting of this story. It is as if their journalists tried to read the judgment, got bored, befuddled or confused, and instead -- just found the fieriest word in the text and decided to sex it up into an unprecedented judicial drubbing for the SNP.  But don't take my word for it. Just read paragraph [73], which is the solitary instance of the word "totalitarian" in the judgment. Lord Hodge said:

There is, you will note, no mention of the Named Persons scheme in this passage. Nor is there many mention of the SNP government, or of "SNP run Scotland", to borrow Mr Maddox's pithy phrase. Instead, Lord Hodge lays out the roots of the right to privacy and family life in international human rights law. He goes on to set out key principles and cases from the ECHR in subsequent paragraphs, before returning to their application to this case. This isn't a "devastating line" as the Press and Journal had it. It is bone dry judicial background. It doesn't "blast" the Named Persons scheme, or the SNP government, as "totalitarian", however much the Daily Mail might have liked the court to use this kind of salty language to describe the policy.  

It is an old trick, none the less shabby for its familiarity: the selective quotation, deliberately decontextualised, its true object obscured, and presented in a way calculated to mislead the reader.  If I was Lord Hodge, or any of the four other judges who contributed to the judgment, I doubt I'd be terrifically pleased to find Mr Maddox and his fellow travellers' putting words in my mouth, misrepresenting my judgments, and trying to pull me into their political battles. 

Whatever you make of the wisdom or folly of the Named Persons schemes, whatever you make of its flaws or the flaws of the government which sponsored it, we ought to be able to agree on this. Having read this passage, only an idiot could conclude the Court was "likening SNP run Scotland to a totalitarian regime." Only a determined charlatan could tell the public that Lord Hodge was "blasting the named persons scheme as 'totalitarian.'" 

For shame.

28 July 2016

Named Persons: a Pyrrhic victory, a Pyrrhic defeat

Bonjour from the bonny Languedoc-Roussillon! I'm meant to be on my holidays, but the Supreme Court of the United Kingdom is no respecter of summer sojourns. The Court just handed down its judgment in the Christian Institute's challenge to the Scottish Government's controversial Named Persons scheme. 

You can read the - far briefer - press summary here. And heaven knows, the hacks will need help reporting this one. Both sides will claim victory, and indeed, both sides have achieved important things in this judgment. It puts the headline writers in an awkward spot. The spin-machines will be whirling overtime. Everyone will take what they want from the decision, whether or not you can find it in the court's analysis.

So what's the short version? Here follows a - very brief, dashed off holiday primer on some of the issues. I've only had time to make a hasty reading of the judgment in full. Forgive any weaknesses or glaring gaps in the speedy reaction that follows.

The Christian Institute won -- the court, led by Lady Hale and Lords Reed and Hodge -- decided the Named Person scheme as presently constituted is unlawful. It is incompatible with Article 8 of the European Convention on Human Rights. Article 8 protects the privacy of your home and family life, of your correspondence. But in order to understand what the Court has and has not decided, you have to know a little more about how they approach Article 8. Privacy and family isn't an absolute right. It is qualified. The state is allowed to interfere with its citizens family lives -- if they have a good reason to do so. 

Thus, for example, the law permits children at risk to be taken from their parents. A more radical intervention in anybody's family life, it is difficult to imagine -- but if there is a good reason for doing so, Article 8 will not prevent it. The same goes, for example, about bugging the houses of people suspected of serious organised crime, or terrorism. A more radical intrusion into your home life, it is difficult to imagine, but if it is for a good reason, and strikes a fair balance between the collective interests of the community and the rights of the individual, Article 8 doesn't stand in its way.

So for any given scheme which interferes with a citizen's privacy or family life, the court must ask itself three questions. One: does the scheme purse a "legitimate aim"? Does the government and parliament have a good reason for interfering with the rights of its citizens? Today, the Supreme Court held that the aim of the Act, "is unquestionably legitimate and benign". 

Two: judges must consider, is the measure "necessary in a democratic society"? Essentially, this means: is the measure proportionate? Does it go too far? Today, the Court fired a warning shot across the Scottish Government's bows, observing that because of weak guidance in the legislation, the Named Persons scheme does have the potential in some cases to disproportionately interfere with privacy and family life. 

But critically, this morning judges recognised the Named Persons scheme as a whole does pursue a legitimate aim, and can be proportionate across the piece. But judges expressed some pretty serious reservations about how the scheme will operate in individual cases, concluding that without clear guidance on the powers and responsibilities of Named Persons, the scheme as presently drafted "may in practice result in a disproportionate interference with the article 8 rights of many children, young persons and their parents, through the sharing of private information." Which brings us on to the third and final test, and the critical one in this appeal.

Thirdly and lastly, the court must ask itself whether the scheme is "according to law"? This, rather than legitimacy or proportionality, is the key point in today's Named Persons judgment, and the basis for the Court's conclusion that the legislation - as it presently stands - is unlawful. 

In principle, we live under the rule of law. Decisions taken by our public authorities must not be arbitrary. There should be a clear legal basis for their actions, and more than that, decisions which interfere with fundamental rights must, in particular, have a clear and rational basis in law. That might mean the  backing of parliament through legislation, or a decision of the courts. Here, the Named Persons scheme was enshrined in law by Holyrood in Part 4 of the Children and Young People (Scotland) Act 2014.  

But having some legal basis for a scheme isn't enough. The ECHR is not just concerned with whether there is a legal basis, but the quality of the legal basis. The law must be clear about what powers and responsibilities public officials do and do not have under the legislation. That's the nub of today's decision, and that's where the Scottish Government has taken a tumble. 

Lord Hodge and his colleagues concluded that the legal rules governing the Named Person scheme currently aren't tight enough or clear enough to satisfy the ECHR.  But critically, this can be fixed. The Scottish Government lost, but this decision does not permanently hull the Named Persons scheme below the waterline. I hope that makes things just a little clearer. There is, as I've said, something here for everyone. Sharply critical passages. Important concessions. Expect the partisans to seize their advantages where they may, and to spin like billy-oh.

What we all ought to be able to agree on is this. This judgment calls for a fundamental reappraisal of how the named persons scheme is set out in primary and secondary legislation. It demands a very serious second look at the rules which have been put in place to govern the legal powers and responsibilities of Named Persons. John Swinney has indicated this morning that he intends to fix up  the scheme, and "roll out" named persons as soon as possible. But with the proper amendments, nothing in this judgment prevents him from doing so. For the Christian institute, perhaps a Pyrrhic victory, for the Government, a Pyrrhic defeat. 

And now, summoned away from my dusty shelf of law tomes, the sunshine calls...

1 July 2016

Scotland's future? Brexit on Brexiteers' terms. Unless...

Consider the following scenario. The United Kingdom votes narrowly to crash out of the European Union, 52% to 48%.  In Scotland, by contrast, a substantial majority - from coast to coast - votes to remain. Invoking the popular will of the Scottish people, the First Minister gives a press conference. Distilled down to its essence, she says that unless Scotland's EU membership can be secured, we're on course for #indyref2 as the last viable route to secure a European future for this country. 

Merry hell ensues. It soon becomes apparent that none of the alternatives to keep Scotland in the EU fly. In erecting the legal infrastructure for the referendum, Westminster refused a home-nations Euro lock, which would have required all four parts of the UK to vote in favour of Brexit. The Scotland Act gives Holyrood no constitutional power to veto the departure from the Union which the majority of Britons demanded. For all the well-intentioned creativity of the ideas produced by desperate Remain campaigners and academics in the frenetic wash following the vote, all of their solutions are quickly revealed as far-fetched and politically inoperative; intolerable either to European governments, to the United Kingdom, or both. 

Scotland can't invert Greenland's experience. The autonomous island is part of Denmark, but sits outside the EU.  Why - some folk have asked - couldn't England and Wales fall beyond the frontiers of European law and the four European freedoms, of goods, services, capital and people, while Scotland is left in? But the two cases are completely different. Greenland has a population the size of Livingston, compared to the 5.6 million Danes on Europe's doorstep, who accept EU rules and participate in the bloc's decision-making. If we "reversed" this in the UK, over 80% of the UK population would fall outside the EU. To put it mildly, this would be an unwieldy, cumbersome, unsustainable solution, even if it was politically acceptable, which it isn't.

But beyond that -- Britain voted to leave the European Union. Without independence, Scotland cannot step up and occupy the seat which the UK will vacate. Even if this lop-sided, unstable compromise was acceptable to European governments, the UK isn't going to remain even a paper member in Brussels, for the sake of five million Scots in a country of more than sixty four million. Particularly, if the consequence of such a decision would be to asset-strip the English economy, as companies relocate north of the border to secure their access to the single market. It is a fond fantasy. It soon becomes clear that there is no viable route for Scotland to remain within the EU while it remains a junior and overruled partner the United Kingdom. Thus far, I'd argue, we have already come in the manic progress of the last week. 

This is not to say that Nicola Sturgeon's unprecedented embassy to Brussels was cynical or calculated gesture, as some of the First Minister's more embittered critics argue. But Sturgeon's remarkably gutsy response to the result immediately established a trajectory which made a second independence referendum seem nigh unavoidable. "Highly likely" but not her "first option", is how the First Minister has characterised it. I agree.

But a key variable is and remains missing from these calculations: what kind of deal will Britain do with the EU? Here, to my mind, there is only one master question: will David Cameron's successor accept the principle of free movement or not? Whether under Prime Minister Theresa May, or Michael Gove, is this to be a Brexit which turns the lock in the door, or which leaves it ajar to the European nations Britain has decided to distance itself from? The past couple of days have brought a little bleak clarity to that.

But there is - at least in theory - considerable wiggle room for British political actors here. Many pointed to the solution devised by the EFTA states, including Norway, which permits Norwegian goods and persons to circulate freely in the single European market, without fully incorporating the Norway into the EU proper. But the price of this kind of privileged access to the single market? Free movement of persons and no internal borders. You can't say we weren't warned. European Council President, Donald Tusk, has repeatedly underscored this. The view has been reiterated several times, before and after the referendum, by key actors within the EU, from Chancellor Merkel to Jean-Claude Juncker: "no single market a la carte."

(I'd merely note, when he isn't getting standing ovations in the European Parliament, that Alyn Smith MEP was bang on about this back in 2014, when he wrote that the "unreality" of David Cameron's renegotiation proposals made Brexit odds on. How sadly prescient.)

There was - briefly - a window in which this might have been fought for from within the major UK parties. If they had seized the initiative, remain campaigners and more liberal minded Tory and Labour Brexiteers might have made a coordinated push to define the terms of which Britain would have negotiated its departure from Europe, emphasising the narrowness of the margin of victory, and seeing something like EFTA status for Britain as the next-best or least-worst alternative, keeping the channels of trade, work and travel open.  If Mr Cameron had remained in post, this might have been possible, and Britain might have secured this kind of looser connection with the European Union

But there would be an obvious political cost to this which your average calculating Tory politician would be unprepared to pay. With its ugly emphasis on "taking back control" over our borders, it was always going to be tremendously difficult for any post-Brexit PM to avoid committing to ending free movement of persons from the Europe Union. Any Tory PM who failed to do so would leave themselves vulnerable to a massive and emboldened UKIP campaign against immigration. After all, why vote for the lesser evil? 

But if this became a serious option -- it would have put Nicola Sturgeon in a deuced difficult spot.  If an EFTA type deal was struck, which meant that Britons could work, travel and trade freely within the European Union, how many Scots would really be prepared to die in the ditch for the European rights, freedoms and regulations we had lost? There are, perhaps, a handful of people in this country for whom full participation in the EU is a red line. 

Even so, the Brexit result has almost certainly done lasting damage to liberal, cosmopolitan and professional Scotland's confidence in the UK, its stability, competence, and the mutual faith and credit in these islands which many No voters felt so keenly in 2014. (As a perceptive friend of mine noted, weeks out from the poll, the levels of complacency you encountered in Scotland about the referendum were startling. This is, perhaps, understandable. If you live in those parts of Edinburgh and Glasgow, for example, in which more than 75% of the population voted to Remain, it is understandable that the outcome seems a sure fire thing. Friday was a grisly morning, but all the more so, because it caught big parts of the electorate completely by surprise).

But offered an EFTA deal, I suspect most Scots would be prepared to endure the compromise, and count themselves lucky, even if Nigel Farage and his honking compatriots belched and gurgled about it. What would Nicola Sturgeon do? On these terms, would Brexit really represent a "material change" in most Scots attitudes to independence? I hae ma doots. 

I suspect that for many, many Scots, the perceived necessity and temporary appeal of independence would recede. The First Minister has given herself considerable wriggle room, in her public remarks. She has never, to my knowledge, made a categorical statement about whether or not an EFTA style deal would satisfy her, or not, representing an almost adequate reflection of the popular will. But at the very least, it might leave Nicola exposed, having given the prospect of a second independence referendum such powerful momentum, in the immediate aftermath of the EU referendum results. Such things have the habit of running out of control. 

But hidden beneath the incessant Game of Thrones metaphors, lost-sight of in the explosive Shakespearean game of political personalities -- Gove bursting out of Johnson's belly, like an alien hatchling -- the past two days have confirmed that the brief window of opportunity for a more open European deal has been slammed unceremoniously shut by the ascendant forces within our Tory government. Now the rout begins. 

Both Michael Gove and Theresa May have effectively confirmed that they will not countenance the more cosmopolitan option of EFTA. The implications for the UK's access to the single market remain fully to be charted. But we shouldn't kid ourselves on. We can't pretend we've been hoodwinked. At the weekend, in a common statement, the European heads of government set out their position perfectly categorically.

"In the future, we hope to have the UK as a close partner of the EU and we look forward to the UK stating its intentions in this respect. Any agreement, which will be concluded with the UK as a third country, will have to be based on a balance of rights and obligations. Access to the Single Market requires acceptance of all four freedoms."

That's freedom of goods, services, capital -- and yes, persons too. Yesterday and today, both  leading contenders to be Prime Minister have confirmed that under their leadership, the Tories will put the principle of free movement to the sword -- however devastatingly this position undermines their wider ambition to crack open the single European market to British firms, capital and workers.

This will be a Brexit, on Brexiteers' terms. There can be no illusions left now, about the emerging character of this United Kingdom and the priorities of its new government, whoever the victor in the Tory party leadership election may be. There must be a snowball's chance in hell of any kind of compromised Norway inspired EEA/EFTA deal now.

Thus, Sturgeon has dodged one bullet, but contemplates another. A second independence referendum now becomes increasingly unavoidable. Much which will be critical to the fortunes of such a poll remains unknown. Europe - clearly - has conflicting currents within it, more and less helpful to the Scottish Government, if they are forced to embrace a second independence poll. Depending on your optimism or your pessimism - I'm currently veering between the two, as the hours tend - the prospect may make you sing with lively anticipation, or shoogle with anxiety.

I still do not have a clear sense about just how far this referendum result has restructured Scottish opinion, and whether - tested under the renewed glare of a serious campaign - a second Yes campaign would carry the day. We all have anecdotes. Individual converts, and changed minds. But the room is still spinning. When things come back into some kind of focus, what then? 

As I wrote in the Times yesterday and in the National last Saturday, the First Minister has been on majestic form. Gutsy. Poised. Reasoned and reasonable. Clear and humane. But Andy Maciver must be right to conclude, in the Herald this morning, that "this is a career-defining gamble by Nicola Sturgeon, and therefore a defining moment for the nationalist movement." This is multi-dimensional chess, played with exploding pieces.

Only time will tell,