Something not about Alex, Nicola, or even James Hamilton

Mike Small in a piece today (“On Harry Cole, Doomsday and the new Hyper-Unionism” – https://bellacaledonia.org.uk/2021/03/23/on-harry-cole-doomsday-and-the-new-hyper-unionism/), quotes John Harris as saying ” “Shall we at last face the facts? Even if the institutions of the United Kingdom creak on unchanged or are somehow saved by a new federalism, as a meaningful political entity the UK is all but over. Independence is partly a state of mind, and for very different reasons, a large number of people in Scotland, Wales and England have got there already.” (“English politicians are waving the union jack, but its meaning is tattered and torn” – https://www.theguardian.com/commentisfree/2021/mar/21/british-politicians-union-jack-flag.

Fwiw I have long had this notion – and I would put it not one wee bit stronger than that – this is no great analytical insight. – just a feeling – that when Scotland becomes independent, no referendum will be involved. In particular, I have been drawn to the Czechoslovak “velvet divorce” of the early 1900s. The reason for this was that ever since the Czechoslovak state had been set up, the Slovaks wanted a decentralised state, while the Czechs were quite happy with the country being run from Prague. As time went on the two communities progressively drifted apart. Slovaks were the minority community (about 1/3) but the Czechs felt that at that proportion they had too much power, though the Czech economy was about 20% bigger per capita than the Slovak. Czechs sought tighter integration of the two parts while the Slovaks sought more local independence. Sound familiar? Pressures from the larger community for greater centralisation of a system decentralised in some respects.

This became critical when in 1992 the Czechs elected Vaclav Klaus who advocated a tighter union of the two communities, while the Slovak’s political leader Miroslav Meciar wanted a confederal state. The Slovak Parliament declared Slovakia to be independent, and a few days later Klaus and Meciar agreed the dissolution of Czechoslovakia. There was no referendum – just the declaration of two politicians that the game was up for Czechoslovakia, even though only 36% of Czechs and 37% of Slovaks supported this in a contemporary opinion poll.

Why would this tell us anything about Scotland’s independence? For instance, while the Czechs were the largest group and dominated the country, they did so to a much lesser degree than England does the UK – 85% England; 8% Scotland. Nor did they have to deal with the Supreme Court and arcane notions of sovereignty, such that the Slovaks never had to go to the Czechs and ask if it was ok for them to become independent.

The relevance of this is that if Harris is correct and “as a meaningful political entity the UK is all but over”, there must be some process for this to happen.

Let’s take Wales, whose current First Minister, Mark Drakeford, was quoted earlier this month as saying “The United Kingdom “is over” and a new union should be crafted to reflect a “voluntary association of four nations”, (https://www.itv.com/news/wales/2021-03-05/the-united-kingdom-is-over-drakeford-says). Even more importantly he underlines this with “the break-up of the UK was possible if politicians only offered a “tweaking of the status quo” and yet, the direction of travel of post Brexit UK seems to be precisely the opposite.

The vision of the Westminster government, based on the philosophy and practice of the UK Internal Market Act is toward closer integration, side-stepping the possibility of potential difficulties with the device of “mutual recognition”, which threatens any part of the UK that imposes higher standards (eg of food production) with the lower standards of elsewhere having to be recognised and allowed to apply.

Harry Cole, Political Editor of the Sun (“ONE YEAR ON Boris Johnson was ‘naive’ to give Nicola Sturgeon pandemic powers, Cabinet colleagues claim” claims that some members of his Cabinet “wanted Mr Johnson to rely on the doomsday 2004 Civil Contingencies Act which gave Whitehall supreme authority for a “catastrophic emergency” rather than the four nations each going their own way. As Mike Small writes “There’s an ominous addendum: A Cabinet Minister said: “I have no doubt that it will be done differently next time. The PM knows that.”

In short, Johnson and his government are aiming to take the UK in precisely the opposite direction from what Drakeford wants. A confederation would be relatively loose – Huw Edwards might get to use his flag – but what Johnson et al want is a tightly integrated UK. But it is also important to remember Drakeford’s wider political opinions. This is the man who just last year said “Welsh nationalism is an “inherently right-wing creed” and that people must choose between it and socialism.” (https://nation.cymru/news/nationalism-inherently-right-wing-and-incompatible-with-socialism-first-minister-says/) and that “devolution is the best of both worlds. It allows us to remain part of the United Kingdom and draw on the strength of being part of that collective whole. But it puts decisions about what happens in Wales in the hands of people who live in Wales.” In short, Drakeford is no Nationalist, but if the sort of car crash that apparently looms comes about, he might have to make his mind up. Does he want Wales to be part of a new, more highly integrated UK – at least undermining devolution – or, if confederation is not available, will he support independence? Is this not rather like the contradiction that Klaus and Meciar walked into in 1992.

Then there is Ireland. Many feel the North rejoining the rest of Ireland is simply a matter of time, even if only on demographic grounds – a higher proportion of Roman Catholics among the younger population – the 2011 census was a “demographic watershed”, as for the first time, the proportion of the population declaring themselves as Protestant or brought up Protestant fell below 50 per cent. However, that does not take account the utter shambles of the Brexit agreement which places Northern Ireland in the strange situation of following EU Single Market rules (so that customs checks on the border are not necessary as to do so would contravene the Good Friday Agreement ) but still remains part of the United Kingdom. This part of the Brexit Agreement seems likely to see the EU Commission take the Westminster Government to Court over their unilateral increase to the “grace period” for not following new regulations to be extended.

What about England itself? Recently, Labour supporter Rachel Swindon tweeted, “If Bristol was worth a few headlines Liverpool will get its own 16 page souvenir pull-out.” Of course, if folk in Liverpool were to take the same course of action as people in Bristol, she might well be right, and just how Johnson would react if his government came under much the same sort of pressure in many more places than just Bristol (or even just Liverpool). Some of us are old enough to remember the riots in 1981 that took place mainly in Brixton, Toxteth, Handsworth, Chapeltown and Moss Side, though there were other outbreaks in Bradford, Halifax, Blackburn, Preston, Birkenhead, Ellesmere Port, Chester, Stoke, Shrewsbury, Wolverhampton, Birmingham, High Wycombe, Southampton, Newcastle-upon-Tyne, Knaresborough, Leeds, Hull, Huddersfield, Sheffield, Stockport, Nottingham, Derby, Leicester, Luton, Maidstone, Aldershot and Portsmouth. The causes were held to be racial tension, economic circumstances and police powers and how they were being exercised. Sound familiar? I think it’s fair to say that these issues were not finally settled forty years ago. Could we be set for a replay?

In 1981, Thatcher responded by addressing issues of youth unemployment with such as YTS, Police procedure was amended, the Scarman Commission argued “it was essential that “people are encouraged to secure a stake in, feel a pride in, and have a sense of responsibility for their own area”. He called for a policy of “direct coordinated attack on racial disadvantage”, and things did settle down after this. However, Thatcher’s authority was dented and only restored by the Falklands War

If the same thing happened to Bo Jo, would he be able to respond, or is his government actually so full of dolts that they wouldn’t know what to do? Ally this to Brexit, the stress of the lockdown and the virus and is the British state starting to wobble really a stupid question?

And there is us, Scotland. Current SNP leadership intends, assuming it wins the election in May, to approach Boris Johnson to seek another s30 Order so that another referendum can be held by agreement with Westminster. I have considerable sympathy with this view, particularly the latter part – “agreement with Westminster”, for without that independence is going to be awful lonely and difficult, even if it is possible. However, at the same time, it is widely held that Johnson will say No. Fine, say the Scottish Government, we will go to Court to determine that Scotland is able to organize its own lawful referendum, even if this means going to the Supreme Court to establish this. So let’s suppose this is what happens and that the Supreme Court says it is within the powers of Holyrood to hold its own referendum. Want to bet Westminster just changes (they will say “clarify”) the law, which is what they did with the Brexit Continuity Bill when it became clear they would lose at the Supreme Court. In other words, that route seems barren and unproductive. It will generate much heat, for I am not sure Johnson appreciates just how badly saying “no” could play in Scotland. Remember how well George Osborne’s “you wont get to use the pound” went down in February 2014! But where do we go?

I don’t think there is any agreed answer to this, though there are many suggested, but they all have one thing in common – uncertainty.

But let’s consider a situation where Northern Ireland wants to integrate with the rest of Ireland, Wales wants a new Union based on confederacy which has little support in the ruling Westminster elite and Scotland is, well, just being Scotland, and at the same time, England is starting to explode. Can the UK as a political entity survive so many significant challenges coming at it from all sides? Call it what you want – collapse of a dysfunctional UK state, divorce, or whatever. It does though seem to me that a referendum is not necessarily going to be the only way forward.

Actions have consequences

This title is something of a truism. One form of this is that anything we do can come back and bite us on the bum at some point in the future. This might be something that Alex and Nicola would do well to contemplate. But that, dear reader, is not my topic for tonight.

Instead, it is this. Have all of us thought through the consequences of the action that we are set on? As Stuart Campbell pointed out yesterday, “We’re in for a heck of a week in Scottish politics”. We are indeed.

First of all, the Scottish Government have agreed to publish the legal advice that they were given prior to Salmond’s judicial review. This is astonishing on at least two counts. There have been two previous demands by the Parliament for this to be published, which were both ignored, but the fact is that if not unique, then it is fairly unusual, in British politics for a government anywhere (even, or particularly, at Westminster) to make its legal advice public. Blair, for instance, simply refused to make public the legal advice he received before taking us into Iraq. But tonight, the Scottish Government decided to make public the legal advice they received prior to Salmond’s Judicial Review. Given that we know their QC threatened to withdraw rather than go into Court to argue for the procedure used in investigating Salmond, it seems clear it won’t be pretty reading for them (though it will be for the other parties). The problem they faced was that otherwise they would have faced a vote of no confidence in John Swinney, as the man nominally in charge. Thus, it seems possible, if not actually likely, that some kind of political comparison has been made with the conclusion that the harms caused by losing Swinney were greater than publishing the advice.

This will now, secondly, have to be defended by James Wolfe as Lord Advocate, and in charge of the Government’s legal affairs, when he meets the Inquiry on Tuesday. Rather like Sturgeon’s meeting on Wednesday, it will be interesting to see how they do.

After this, the final curtain will come down on this wholly unedifying (and in my view unnecessary) affair when the Committee of Inquiry publish their final report, which will no doubt come to conclusions on whether the First Minister broke the Ministerial Code of Conduct. Even if it is found that she has, whether she will resign is open to question as there is nothing mechanical in this regard in the Code. In fact, interestingly, if a Minister is found to have breached the Code, then the question becomes whether the First Minister retains confidence in them. So, I suppose the issue will be whether the First Minister still retains confidence in Nicola Sturgeon.

If the conclusion of the Committee and James Hamilton is that she didn’t breach the Ministerial Code, then while she has been damaged by the bad (particularly bad?) publicity she gets from the press, she can put it behind her.

But let’s suppose, either the Committee of Inquiry or Hamilton’s investigation, determine that she did breach the Code. It is possible that politically she might survive, but especially with this Parliament about to be dissolved (before the end of March), and particularly if the SNP were returned with their own majority, she might be able to ride it out. We can though be sure that her breach of the Code will be made most salient by her political opponents. Will it affect the SNP vote? According to Ipsos Mori what matters for Scottish voters are

1.    Scottish independence/devolution 394 or 38%.

2.    Education/schools 305 or 30%

3.    Healthcare 239 or 23%

4.    Coronavirus 199 or 19%

5.    Economy 163 or 16%

6.    Europe 127 or 12%. (https://wordpress.com/read/feeds/99457212/posts/3204578393)

Only 0.7% selected LGBT rights and, and less than half of 1%, selected the Salmond Inquiry. It seems that James Doleman might be right when he asserted that no one outside the Edinburgh Ring Road cares very much about this.

Perhaps, though, we should care. So far, we have considered scenarios where the First Minister survives – possibly scarred, but still alive. But let’s suppose she doesn’t and has to resign. Who will be happy? Well I suspect Wings will put the flags out. Others – such as Kenny MacAskill, Chris McElenay – along with others, some of whom I still consider friends, will have a wee smile on their face. But who else? Will Sturgeon’s critics – and there are others besides those named – be happy to be standing beside such as Andrew Marr, Euan McColm, Alan Cochrane, Stephen Daisley, Sarah Smith, Kirsty Wark and of course Andrew Neill? Remember when various Labour grandees cavorted around BBC Scotland when it got out that Salmond had lost in Gordon in 2017? That will be as nothing if they get the First Minister.

If the current First Minister has to resign, we will have lost someone who is not divisive (unlike Alex Salmond, who has other qualities, including inducing endless loyalty among his followers), a fine communicator and, perhaps more important than anything, someone who has their public approval at a level that most politicians would die for.

Do I think she has made mistakes? Yes – I think that is clear from what I have written already? Do I think those mistakes amount to a resigning matter? No, I don’t, and I think this for two reasons. First, if she goes, who is getting the job? Is there an MSP who stands out as a candidate? Even an MP? It’s a bit like sacking your football club’s manager because he has lost a few games, when you don’t have a clue whether anyone better is available.

But secondly, because there is a greater prize out there that is more important than anything – independence. Getting out of the UK. I can scarcely believe that faced with the most incompetent bunch of shysters in Downing Street ever in my adult life, polls suggesting we would be starting with anything from 52% support upwards and a debate which seems to me to be changing from “why independence?” to “what are we doing still in the UK?”, we are having this rammy. As I titled an earlier blog – FFS.

In terms of religious belief I would characterise myself as an extreme agnostic (in the strict sense of that word, that as humans we are not equipped to be able to know if God exists), but my prayer would be that, even now, Salmond and Sturgeon can get their heads together, realise that there is a greater prize, the one they signed up for, and can come to an agreement to work together in the future. However uneasily! I mean if he can turn water into wine and raise folk from the dead, is that too much to ask?

A Garbage Can Explanation for Salmond v Sturgeon

Conspiracy, proper conspiracy, emergent conspiracy and garbage cans.

A few days ago Peter Bell published an interesting article – “Alex Salmond: A fly bugger” (https://peterabell.scot/2021/02/23/alex-salmond-a-fly-bugger) in which he asserts that when Alex Salmond’s refers, as he does in his evidence to the Holyrood Committee to “a deliberate, prolonged, malicious and concerted effort amongst a range of individuals” he is not quite describing a ‘proper’ conspiracy.”

But what is a “proper conspiracy”? In law a conspiracy is when “A person who agrees with another or others to act in a way which would involve the commission of an offence by any party to the agreement is guilty of conspiracy to commit the offence” (https://www.scotlawcom.gov.uk/files/5712/8024/7006/cp_criminal_code.pdf). One problem in using “conspiracy” for the current imbroglio of Salmond and Sturgeon is that to the best of my knowledge, no offence in law has been committed, by either side. Powers have perhaps been abused, the Ministerial Code broken, but I don’t see anyone being in the poky as a result.

Thus, is conspiracy an appropriate concept to help us to understand what has been going on, or is it just clickbait to attract online readers, or increase dead tree sales – ie just lazy journalism. I am pretty certain that Levy and McCrae as well as the others in Team Salmond are being well rewarded for their efforts and could easily employ “conspiracy”, emergent or otherwise, if it suited their purpose.

Perhaps, another, more insightful explanation can be derived from the “Garbage Can Model of Decision-Making” (Michael D. Cohen, James G. March, and Johan P. Olsen). Any rational theory of decision-making puts the various stages of decision-making in a logical sequential order – for instance that problem identification will always precede the development of a solution. This is not necessary for the garbage can model.

This model operates in what the authors describe as an “organized anarchy” of problematic preferences, unclear technology, and fluid participation. Public institutions, they say, often satisfy what they describe as “organized anarchy”. So do Universities!

The core idea is that that are four variables or “streams” circulating in a fixed decision space, that decision space being the garbage can; those four variables are: problems, decision participants, choice opportunities, and solutions.

Solutions can be in search of problems to attach themselves to. For instance, holograms existed for many years without any kind of widespread use, till financial institutions realised they could be used to foil counterfeiters. The expertise of participants can determine which problems to address – accountants for instance will tend to drift toward problems that are financial in nature; the choice opportunities that exist can determine which solutions are selected.

Let’s apply that to the present situation. For instance, fired up by the Weinstein case and the #metoo movement, the First Minister decides that there must be a procedure to deal with misdemeanours of even previous and no longer serving Ministers, so that sexual predators can be found out even years later just as Weinstein was. Let’s presume that the First Minister was telling the truth in 2017 that she had heard at an earlier stage, reports about Alex Salmond’s behaviour toward some women What to do about it? Could it be reviewed in the same way that the behaviour of Harvey Weinstein and Rolf Harris had been.

At the same time, two Civil Servants come forward with complaints about the previous conduct of the former First Minister, while in office. Thus, we have the problem, but we also have the solution in place – a process is to be developed to address this very problem.

The decision participants are in place – Judith McKinnon and Lesley Evans, and the choice opportunity when the First Minister signs of the procedure.

Bit too pat for you? How likely is it that two Civil Servants would come forward at/about the same time a procedure is being implemented to address this very situation? Undeniably convenient?

James Kelly too has published a similar sort of argument to Bell – maybe there wasn’t a conspiracy (he doesn’t bother to try to define “conspiracy”) but “having overreached themselves with a tainted process for what they might well have thought was the best of motives, they may have then panicked about the political damage that would be done to them as a result of a legal defeat.”, so they plough on and the case is heard at the High Court resulting in … Salmond being cleared on all charges. As David Hooks tweeted, “what a bloody shambles”!

The alternative is however that otherwise we need to be able to show conspiracy, emergent or otherwise. According to Peter Bell “All that is required for the appearance of conspiracy to emerge is that there should be a sufficient number of people; with a sufficient amount of influence; and a sufficient commonality of interest.” That though is not quite true, for we need to show those with the influence and commonality of interest shared a common mens rea “the intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused.”. We also need to show that they planned to, and did indeed, act in concert.

Kelly suggests that this was because of a belief that Salmond intended to return to Parliamentary politics, when in fact it was widely known at the time that he intended to become chairman of Johnson Press, owners ot the Scotsman, and was putting it about he was finished with front line politics. Maybe, particularly bearing in mind that Salmond and Sturgeon must have known each other a good length of time and were old comrades (or so it seemed), she might have asked?

But in any event, what do we know the state of mind of those involved? What, for instance, was the motive of the First Minister? Was it to ‘do in’ her former mentor and if so why? Or was it to ensure that the complainants were not “let down”? We might have opinions, but DO we know? It’s all very well to assert that anything that waddles and quacks must be a duck, but we would do well to consider the origin of the saying, which concerned a mechanical duck that did waddle and did quack but was not a real duck (https://www.mirror.co.uk/usvsth3m/you-know-phrase-if-looks-5235884).

There is, therefore, a good deal still to go before Bell’s claim that Salmond has left two verdicts for the Committee of Inquiry – that there was a conspiracy, or there was “a deliberate, prolonged, malicious and concerted effort amongst a range of individuals” would stand up.

Moreover, let’s not forget just what is being claimed by at least some of Salmond’s supporters, that not only is the First Minister corrupt, but so must be her Deputy, John Swinnie and her Lord Advocate (a former Faculty Dean) as well as a good part of the Crown Office. Then there is the Chief Executive of the SNP (the First Minister’s husband) its Chief Operating Officer, as well as sundry Party Officials. Oh, yes and Police Scotland too.

I accept that the Garbage Can explanation can seem a bit too convenient, but is the alternative not just a bit extreme? Bell himself reflects a conclusion not inconsistent with the Garbage Can Model of what happened – “As far as she [the First Minister] and her people are concerned everybody was just doing their job. Perhaps ‘mistakes were made’. Maybe things were done that shouldn’t have been done or done in a way that could have been better. But no actual conspiracy.”

The First Minister wants us to focus on the facts. Well, we know that sexual harassment was and remains a serious problem for the First Minister – there was a problem. We know a process was devised to investigate such claims. Its difficulty was that it offended the law in so many ways that the Scottish Government had to abandon it in the Court of Session just prior to Alex Salmond’s Judicial Review.

We know there were participants – the First Minister, her Principal Secretary, as well as others in the Civil Service and in the SNP. We know there were a variety of decision opportunities within this organized anarchy.

In short, we need to ask ourselves whether there was a conspiracy, or even “”a deliberate, prolonged, malicious and concerted effort amongst a range of individuals”. Either way, the problem is that motive is crucial since Salmond himself is asserting that it was “deliberate” and “concerted” – not something that just happened. What is the evidence for this? How much evidence that it was malicious rather than incompetent or misconceived? How much evidence that it was directed at addressing the wrongs the complainants had claimed?