Broadcasting Should Be The Nationalists’ Holy Grail

By Stuart MacLennan | Published: January 4, 2012

BBC Scotland
A recent Scottish social attitudes survey found that 65% of Scots would back independence if they were £500 better off. The slogan “It’s Scotland’s Oil” has been the cornerstone of the nationalists’ case for independence for the past four decades, while the unionist case invariably relies upon Government Expenditure and Revenue Scotland (GERS) reports which show Scotland receives more public expenditure than it raises. I would contend that all of these are entirely erroneous.

No nation’s people have ever voted for independence because they would be a few quid better off.

Scotland has a unique cultural identity. This unique cultural identity is essential to a nation’s independent character, particularly where small countries are concerned. Language, literature, music and theatre played a crucial role in Irish nationalism. However while I would always contest that the very best bits of Scotland’s cultural identity are those parts which are uniquely Scottish it’s hard to argue that Scotland is culturally independent from the rest of the UK. Why else would John Swinney have felt it necessary to reassure Scots that they’d still be able to watch EastEnders in an independent Scotland?

It would seem odd therefore that, despite the fairly broad competence of the Scottish Parliament and Government there has been virtually no shift in Culture policy under the SNP. The work to establish Creative Scotland was begun while Frank McAveety was Culture Minister, with concrete proposals emerging by 2006. The Gaelic Language Act was introduced to Parliament by Peter Peacock in 2004. The only major celebration of Scottish Culture in recent years has been the disastrous ”Homecoming Scotland”, which was initially the brainchild of Jack McConnnell. Even then, “Homecoming” appealed more to wealthy American tourists’ sense of Scottishness than our own.

Of course, the zenith of Culture policy is broadcasting – which is presently reserved to Westminster. It is through broadcast media that the vast majority creative output is consumed. In their first term in power the SNP recognised the importance of broadcasting to the nationalist cause. They established the Scottish Broadcasting Commission, who recommended the creation of a dedicated Scottish television network.

Similarly the Scottish Government’s National Conversation considered the question of Broadcasting. Their consultation document proposed as an interim measure that:

  • Responsibility for MG Alba should be devolved to the Scottish Government.
  • The Scottish Government should be granted the competence to establish a “Scottish Digital Network”.
  • The creation of a Scottish division within Ofcom.
  • The creation of a Scotland-wide Channel 3 licence, to be regulated by Ofcom Scotland.
  • Assigning Scotland a share of broadcasting revenues (i.e. from spectrum sales and licence fee), with the ability to vary the licence fee for Scotland.

The SNP dominated Scotland Bill Committee has made similar recommendations relating to the devolution of broadcasting, though such a move has not attracted the political onus that devolution of Corporation Tax has received. However even if the SNP were successful in having broadcasting devolved to Scotland it would take years to implement any substantial shifts in policy.

If the nationalists’ want to be certain of victory in an independence referendum then they need to foster a greater sense of independence within Scotland’s culture. And to do that they need to do more than hold the occasional festival of Scottishness or commemorate 700-year-old battles. Promotion of the gaelic language will play an important role in the development of Scots culture. So too will the promotion of literature, music and the arts. However in order to engage with every section of Scots society broadcast media are required.

The development of Scots broadcasting will be crucial to making Scotland culturally independent. John Swinney sought to reassure Scots they could still watch EastEnders. However in a culturally independent Scotland, nobody would want to.

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Will Scottish Labour EVER Gain a Seat from the SNP?

By Stuart MacLennan | Published: December 1, 2011

Labour has never won a Scottish Parliament Constituency from the SNP.

In fact, Labour has never gained a Scottish Parliament Constituency from any of the other parties. These facts, I’ve found, tend to startle my comrades in the Scottish Labour Party when they learn them. And quite rightly too when one considers that the SNP now hold 52 out of 73 Scottish Parliament Constituencies. Even if the SNP doesn’t win a single Regional List seat in 2016 hanging onto that 52 would be a bigger win than Jack McConnell achieved in 2003. The SNP has only ever lost ONE Scottish Parliament Constituency, and that was Galloway and Upper Nithsdale to Alex Fergusson in 2003.

In hindsight, the only real opportunity the Scottish Labour Party has ever had of poaching a seat off of the SNP came in 2003. In that election there was only one SNP held constituency in which Labour were within 10 percentage points of the SNP: Inverness East, Nairn and Lochaber, with a majority of just 441 (or 1%). It also bore the dubious distinction of being the only seat at that time to be held by Labour in Westminster but by the SNP at Holyrood. Not only was the Scottish Labour party unable to gain this seat, and not only did the SNP more than double their majority, but the SNP also snatched Ochil, Aberdeen North and Dundee East from Labour despite suffering a net loss of 8 seats overall. Though little significance was attached to these results at the time they foreshadowed the very real difficulty Scottish Labour has in winning seats back once lost to the SNP.

Even if one looks through the doldrums of history to the dark days of the SNP, Labour has only ever won 4 seats back from the SNP: East Dunbartonshire and Clackmannan & East Stirling in ’79, and Dundee East and the Western Isles in ’87. Labour has never won a seat from the SNP in a by-election.

I offer no explanation as to how or why SNP incumbents are hard to shift. The problem, however, doesn’t appear to be that SNP incumbents simply dig-in their heels (though as one former colleague remarked to me recently “the bastards make bloody good MSPs!”) The problem, I fear, is much more deeply rooted in that once Scots break their lifetime habit of voting Labour it’s very difficult to win them back. If this is indeed the case then the new leader of the Scottish Labour Party, whomever they might be, has a far greater mountain to climb than perhaps they realise.

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Sovereignty and Independence Lite

By Stuart MacLennan | Published: November 24, 2011

Despite the fact that my PhD is a contemporary study of the impact technology has had on international taxation law, I’ve found myself delving into the concept of “sovereignty”. The link between international taxation and sovereignty is, in fact, far more significant than it first appears however I’ll bore you with that in a future post.

When considering Sovereignty in Scotland there are two issues: the internal constitutional question as to in whom it vests, and the question of what, externally, it will mean in the future.

The first is fairly straightforward, or at least one would think so. Our Austinian conception of sovereignty was best summarised by Harrison, thus:

The source of all positive law is that definite sovereign authority which exists in every independent political community, and therein exercise de facto the supreme power, being itself unlimited, as a matter of fact, by any limits of positive law.

From a jurists perspective sovereignty is the ultimate source of law within any legal order. It founds executive power, legislative competence, and jurisdiction. Hart would describe it as the “ultimate rule of recognition”.

Even a first year student of Constitutional Law would be able to tell you that sovereignty in the United Kingdom vests in Parliament, and would quote Dicey and Jennings at you until you until they were blue in the face to prove it. Yet this seems to have escaped the SNP’s notice completely.

In November 2007 Alex Salmond wrote:

We in the Scottish Government believe that sovereignty in Scotland lies with its people.

This, the First Minister has re-stated a number of times. But unlike Dorothy in the Wizard of Oz closing your eyes and repeating “there’s no place like home” won’t make it come true. The people of Scotland are not sovereign. Parliament may remain sovereign by common consent but that does not make the people the supreme source of law. Perhaps what Alex Salmond meant to say is that he believes the people of Scotland should be sovereign, which I don’t doubt for a minute.

However sovereignty isn’t merely an element of constitutional law but also an important concept in in international law. Mutual recognition of the sovereignty of other states is one of the fundamental elements of international law. Independence is an essential aspect of that sovereignty, as was discussed by Oppenheim:

Inasmuch as it excludes dependence upon any other authority, and in particular from the authority of another state, sovereignty is independence. It is external independence with regard to the liberty of action outside is borders in the intercourse with the intercourse with other States which a State enjoys. It is internal independence with regard to the liberty of action of a State inside its borders.

If there’s one point of fact on which I’m certain Alex Salmond would agree it is that Scotland is not independent.

This brings me onto the second of the two issues which is what sovereignty will mean in the future. Certainly if Alex Salmond wishes the people of Scotland to be sovereign then Scotland needs to be independent. But how much independence does Scotland need before you can describe it, or its people, as sovereign?

Adapting the old adage, independence is like an elephant – difficult to describe but instantly recognisable. Certainly it is not a binary concept. Even when Oppenheim considered sovereignty and independence in the 1950s sovereign nations were heavily dependent on each other. Nonetheless you’d be hard pressed to claim that a nation lacked independence because of its membership of the EU, or the WTO, or even if it were dependent on foreign aid. Independence does not mean self-sufficiency.

“Independence lite” – which would involve sharing (or, more likely, contracting out) defence, foreign affairs, and even social security – appears to be preferred option of the Scottish Government. What this would involve remains quite unclear. For example, would Scotland and the remainder of the United Kingdom (rUK) have joint, or shared embassies? Would such embassies have a joint ambassador? Or two ambassadors sharing an office? Or one ambassador with two hats? Certainly it seems quite absurd for one person to be accredited as ambassador for two sovereign nations.

Presumably Independence lite means sharing a place on the world stage. We would remain a single Member State of the European Union, our membership of the United Nations would still be through the United Kingdom, and we would still sign treaties as a single entity. In that circumstance it’s hard to see how Scotland would be externally independent as Oppenheim describes, and would therefore lack one of the essential components of sovereignty in international law. From an external perspective Independence-lite would not appear to be any different from Devolution-max.

The difference, therefore, between Indy-lite and Devo-max appears to be one of internal sovereignty. Devolution max would preserve the unitary state, with sovereignty continuing to vest in the UK Parliament. Independence lite would effectively create a confederated state – two internally sovereign nations within one externally sovereign state. Within those nations internal sovereignty could vest differentially. One would expect that within rUK Sovereignty would continue to vest in Parliament, while in Scotland it would vest in the people.

Independence-lite may well create the internal appearance of sovereignty – certainly Alex Salmond’s belief that the people of Scotland should be sovereign could be realised. But it’s difficult to see how such a settlement could be objectively described as “independence”.

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Independence: Time for a Substantive Debate

By Stuart MacLennan | Published: October 26, 2011

There will be a referendum on Scottish independence. This fact, I fear, so many in my party have yet to grasp. It’s understandable given that the SNP have already been in power for over four years, and were presented with an offer (the sincerity of which I would doubt) of Parliamentary support for a referendum by Wendy Alexander. It’s clear that Alex Salmond’s government aren’t in any rush to hold a referendum, knowing full well what a “no” vote could potentially do to his party, and the present timetable puts the holding a referendum eight clear years after the SNP first winning power. Nonetheless the SNP’s healthy majority in the Scottish Parliament means Alex Salmond has no excuse for not holding one by the end of this Parliamentary session.

With the exception of Henry McLeish’s recent intervention, the constitutional debate thus far has focused on the timing of a referendum, as well as a somewhat binary argument about the merits of separation. Very little regard has been paid to the substantial questions surrounding what an independent Scotland would actually look like. This, I suspect, is largely to do with an apprehension on the part of unionist parties towards accepting independence as a premise for discussions about Scotland’s future for fear of lending it credence. The SNP, meanwhile, are quite content for the details to be deliberately vague, allowing them to focus instead on populist arguments about sovereignty and self determination. I would contend, therefore, that without a serious debate about what sort of society an independent Scotland would actually look like then the unionist cause is doomed to failure.

So far, the only template we have to work from is the SNP’s Constitution for a free Scotland drafted in 2002. Oddly enough this hasn’t received very much attention since the SNP came to power, from politicians or scholars alike – with the exception of Bulmer’s recent study in Parliamentary Affairs. Written by former leader Bob MacIntyre and renowned constitutional scholar Sir Neil McCormick, the document appears at least to have entered SNP canon.

On the whole the document largely follows the Westminster model. It provides for a Constitutional Monarchy, with Crown prerogative being exercised by the Executive who, in turn, are drawn from the unicameral legislature. This approach is understandable given the desire of nationalists to present independence as being as unfrightening as possible. However this in itself poses the question: if you’re going to design a system from scratch, why on earth would you choose the one we’ve got?

My comrades in the Labour Party will testify to the fact that I’m most certainly not a republican in so far as the United Kingdom is concerned however it strikes me that the arguments which are usually proffered in favour of retention of the monarchy, being tradition and tourism, don’t really apply. The Constitution also provides that :

During any period of absence of the Monarch from Scotland, the Chancellor of Scotland (the elected presiding officer of Parliament) shall act as Head of State

Given that we could expect the Sovereign to be absent from Scotland for the vast majority of every year the Presiding Officer of Parliament would inevitably become the de facto head of state. This compromise between the traditional role of the monarch and an indirectly elected head of state seems to be imbued with the worst of both worlds – lacking the legitimacy of a directly elected head of state or the credibility of the British Sovereign.

Alex Salmond regularly asserts upon swearing his oath that he believes in the “ancient Scots Constitutional Principle that the people of Scotland are sovereign” (though where in our present constitution he finds that principle is beyond me) – why, therefore, would we design a system where sovereignty appears to flow from the top? There is no basis in popular sovereignty for the concept of “crown prerogative” and yet that is precisely what this constitution provides for.

Turning to the legislature, the Constitution provides for a single chambered parlaiment with committies similar in character to those in the present Scottish Parliament. It attempts to stymie the power of the majority in the legislature by providing that any measure can be delayed for 18-months by a two-fifths majority in Parliament. This, surely, simply means that governments will force through their least popular legislation legislation early in the parliamentary session and and the tail-end of any session could well end up being gridlocked. Furthermore, the committees appear to have no greater role than they do in the present Scottish Parliament. While the work of some of the committees over the past 12 years is to be commended they have not, on the whole, proved to be the effective check they were supposed to be.

Insofar as local government is concerned the draft constitution says little, but what is does say contradicts itself. It guarantees local government “genuine autonomy” from central government, yet in the same clause gives parliament a general power to legislate for local government – presumably including to potentially scrap it. Surely genuinely autonomous local government would be prescribed by the constitution, with its powers, functions and revenue guaranteed therein?

I offer these merely as illustrations of the various questions that surround Scotland’s constitutional future. Nationalists propose independence as a means of delivering a new Scotland, but you barely have to scratch the surface to see that what’s on offer hardly differs from the Scotland we’ve got. Political parties need to fully engage not simply with the question of whether or not Scotland should be independent but of what that independent Scotland would look like. For the nationalists it’s a chance to paint a new picture, of a daring new political structure where sovereignty genuinely flows from the people. For the unionists it’s a chance to highlight how shallow the change that’s on offer really is. Which ever side of the debate does this first will likely win the argument.

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How the Scottish Labour Leadership contest should look (but won’t)

By Stuart MacLennan | Published: August 25, 2011

Perhaps the greatest service Tom Harris has ever done for the Scottish Labour Party is to try to flush out contenders for the Scottish Labour Party’s leadership, by declaring that if no one good stands – he will. While Deputy Leader Johann Lamont is widely expected to run others potential contenders like Ken MacIntosh, Jackie Baillie and Hugh Henry seem to have gone off the idea – and who can blame them?

Despite resistance from some MSPs the expectation is that the review led by Jim Murphy and Sarah Boyack is to recommend that the leader of the Scottish Labour Party can be drawn from elected representatives in The Scottish Parliament, Westminster, or the European Parliament. In theory that could mean a busy leadership contest with a wide variety of candidates, and a genuine debate about the future of the party – but I fear that may be wishful thinking. Here’s who I think should run, but probably won’t:

David Martin MEP

David is one of the most senior Members of the European Parliament, having been elected for the Lothians Constituency in 1984. He was Vice-President of the European Parliament and is currently a senior member of the Parliament’s influential Trade Committee. He could certainly take-on Salmond in Statesmanliness, having been one of Scotland’s overseas representatives for the best part of 30 years.

Now based in Bearsden David straddles the East-West divide quite nicely. He’d make an ideal candidate for Strathkelvin and Bearsden, as well as the West of Scotland list. Though he can often appear decidely middle-class he’s imbued with the sort of thoughtful socialism which the party has sorely lacked in recent years. He also appears to be well regarded by the press which, if this year’s election taught us anything, is a must.

Duncan McNeil MSP

My real outsider. A former colleage once said to me of Duncan McNeil that “along with Frank [McAveety], he has the very best grasp of ordinary voters out of everyone in the Scottish Parliament” – I couldn’t but agree. Absolutely no-one is suggesting Duncan as a potential leadership candidate but in my opinion, they should be.

Though he’s not necessarily a household name, Duncan is popular and often father-like figure within the Labour Group in the Scottish Parliament. A former organiser with the GMB, he was Government Chief Whip under Jack McConnell and was elected Chair of the Scottish Parliamentary Labour Party in the last Parliament. Duncan also played a prominent role in the recent Inverclyde by-election, and I’m pretty certain that were it not for his personal popularity Labour would have lost Greenock and Inverclyde to the SNP in May.

At 61, Duncan is unlikely to have the appetite to run, however were he to do so he’d bring a much-needed dose of reality to the debate about the future of the party.

Margaret Curran MP

Margaret Curran has been touted as a potential leader of the Scottish Party since she was Communities Minister in Jack McConnell’s Government. She was one of the favourites to succeed Wendy Alexander until she was harangued into running in the Glasgow East by-election, all-but ending any change of her ever leading the party. With the north-east of Glasgow losing a seat in the Scottish Parliament Margaret’s eventual election to the House of Commons helped avoid a messy selection battle between herself, Paul Martin and Frank McAveety.

Though she’s only been an MP for little more than a year Margaret has settled well into the Commons (and eventually got out of the habit of call the Speaker “Presiding Officer”!) Word on the street is she’s Ed Miliband’s go-to-gal on matters north of the border, and should receive the backing of Westminster if she were to throw her hat in the ring.

In government and in opposition the Party’s media team carved out a highly unpleasant “attack dog” image for Margaret, which in my opinion put-off more voters than it impressed. Since leaving the front bench Margaret’s managed to soften her image somewhat to reflect the warm and witty character that she is in reality. She has the experience and fortitude to be credible against Salmond. In addition to being popular with activists (in particular Young Labour and Labour Students) she has the vigour required to shake the party up internally, something which is sorely needed.

While Tom Harris may not be alone in wishing Douglas Alexander or Jim Murphy would stand, they’ve set their sights on senior jobs in the UK Government. If the party wants MP as its leader, it has to be Margaret Curran.

Ken MacIntosh MSP

In the days that followed the election in May Ken emerged as an early favourite for the leadership, though as I mentioned above he seems to have gone off the idea. He recorded an impressive result in May, regaining his notionally Tory Eastwood Constituency and turning a notional 2,000 vote deficit into a 2,000 vote majority – though it must be noted that in a Tory/Labour marginal Ken was fighting a very different fight from most seats in the country.

Prior to his election Ken was a producer with BBC News in London. His experience with the media is immediately apparent, and he impressed many with his witty-yet-considered stint on BBC Scotland’s election coverage. Yet despite his being the Labour Group’s star-performer with the media Ken’s talents have seldom been acknowledged by successive party leaders. Overlooked for ministerial office, the only post he ever held in government was as an unpaid parliamentary aide – a position from which he resigned over hospital re-organisation. Though having never been a minister could actually work in his favour.

From a tactical perspective, I believe that Alex Salmond would find it difficult to work out how to handle Ken. With his cheery persona and ‘family-man’ image (six kids, and counting) Ken could deflect the bluster of Alex Salmond far more effectively than anyone else. If the MSPs are determined to be led by one of their own then they should be doing everything they can to make sure Ken runs.

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Will the National Transitional Council hand Megrahi over to the USA?

By Stuart MacLennan | Published: August 24, 2011

Scotland may well find itself facing another diplomatic row with the United States of America. New Jersey Senators Robert Menendez and Frank Lautenberg have called on the Libyan National Transitional Council to hand Lockerbie-bomber Abdelbaset Ali Mohmed al-Megrahi over to the United States. Until yesterday it was easy to dismiss this call as just another stunt by vote-hungry US Senators but with the National Transitional Council (NTC) on the cusp of full control of Tripoli it has become a question that warrants some consideration.

Of course, legally and politically the situation is far more complex than Lautenberg and Menendez would have us believe. Leaving aside the dubiousness of the original conviction there are questions as to jurisdiction, international law, United States law, as well as the diplomatic, political and practical considerations.

At first glance jurisdiction seems simple. The flight blew up shortly after crossing the corner of the Solway Firth into Scotland and fell out of the sky towards Lockerbie and Langholm. Ergo, the bombing of flight Pan Am 103 is subject to the criminal law of Scotland, right? Well, things are slightly different where aircraft are concerned. The United States has never been shy about extending its jurisdiction extra-territorially, and the Tokyo Convention on Offences and Certain other Acts Committed on Board Aircraft 1963 creates the so-called “Aircraft Jurisdiction”. The Convention provides that the Country in which an aircraft is registered has jurisdiction over criminal acts while the aircraft is in flight or on the surface of the high seas. The United States has therefore always claimed jurisdiction over the bombingof flight Pan Am 103.

However public international law also comes into play where the Lockerbie trial is concerned. The United States along with the United Kingdom jointly sponsored Security Council Resolution 1192, binding members to accept the jurisdiction of a Scottish Court constituted in Camp Zeist in the Netherlands as the trial venue for Megrahi and his co-accused Lamin Khalifah Fhimah. The United States cannot unilaterally ignore this resolution, though as a permanent member of the Security Council it could propose a resolution overturning it. Without a further resolution, as Professor Robert Black points out, the Federal Government would not only be in breach of International Law but also of Art. VI, Clause II of their own Constitution.

But wait! “What about double jeopardy?” I hear you ask…

The famous double jeopardy rule contained within the Fifth Amendment to the United States Constitution is not as airtight as it first appears. The dual sovereignty exception, which was developed by the Supreme Court in order to protect the rights of the federal government and the states to prosecute crimes independently of each other, appears to have been extended to foreign prosecutions [U.S. v. Richardson 580 F.2d 946 (9th Circuit 1978)]. Therefore provided the United States remains in compliance with its international obligations there is no bar on Megrahi standing trial again in the U.S.

So handing Megrahi over to the U.S. to stand trial is, theoretically speaking, possible in law however the politics make things even more difficult. The Obama administration is understandably keen to avoid being seen to be flouting Security Council Resolutions, so if they wanted Megrahi back they would have to have the acquiescence of fellow permanent member, the United Kingdom – but would they receive it?

In both Government and Opposition David Cameron has been clear about his objections to the release of the Lockerbie bomber. He has continued to maintain that he felt it was wrong that Megrahi was released though has never stated that he believes he should be returned to prison (despite what his spokesperson seemed to think today). The political row that returning Megrahi to the United States would create would be one that I believe David Cameron would wish to avoid.

Alex Salmond appears to relish in the controversy his Government has created. He has succeeded in putting successive UK Governments in a tricky-spot over Megrahi, and in attracting the ire of Hillary Clinton has been elevated to the status of a world statesman. I do not believe David Cameron would put Whitehall on yet-another collision course with Holyrood, particularly given the concessions the UK Government has already made to the Nationalists. Nor would Cameron wish to further enhance Alex Salmond’s quasi-Presidential status in the run up to a referendum on Scottish Independence.

From a practical perspective – at present we do not know where Megrahi is. Megrahi was released on license and returned to a Government, which for the most part doesn’t exist any more. East Renfrewshire Council, the local authority responsible for monitoring Megrahi’s release on license, admits it is in “uncharted territory” in monitoring his license and is urgently trying to make contact with him.  Furthermore Tripoli could remain in turmoil for some time to come and Megrahi may well slip through the net.

Finally, given the uncertainty as to what kind of state may emerge in Libya, there’s no guarantee that the new regime will be any more acquiescent with the United States than its predecessor. Even if they manage to find Megrahi they may not hand him over. And given that it took the joint efforts of the United Kingdom, the United States, the United Nations Security Council and the passage of more that ten years to extradite him the first time around – Senators Lautenberg and Menendez may have to accept that Megrahi will never see the inside of a prison cell again. To paraphrase Kenny McAskill: the next judgment Megrahi faces will almost certainly be that of a higher power.

The above post was written for Better Nation.

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Is the Scottish Parliament Short With Short Money?

By Stuart MacLennan | Published: August 18, 2011

The Scottish Parliament, like its mother in Westminster, operates a system of financial support for opposition parties. “Short Money” is intended to level the playing field between the government, who have the resources of the civil service to aid them in formulating policy, and the opposition. It pays the salaries of researchers and press officers in each party’s support units, office costs, and certain other expenses to assist members in the pursuance of their “Parliamentary duties”.

In Westminster the level of funding is calculated on the basis of a fixed amount-per-member plus a further sum per 200 votes received. Following the Neill Report in 1998 the level of funding per member was, by a resolution of the House of Commons, more than doubled making Short Money in Westminster rather generous. The Short Money levels in the Scottish Parliament were established by s97 of the Scotland Act. As part of the transfer of legislative power to the Scottish Parliament during the first month of its existence the UK Parliament amended the Scotland Act by Order-in-Council to expressly un-reserve the making of payments to “any political party for the purpose of assisting members of the Parliament who are connected with the party to perform their Parliamentary duties.” As the present Short Money funding level in the Scottish Parliament is enshrined in statute primary legislation in the Scottish Parliament would be required to vary it. The consequence of this is that, relative to Westminster, the opposition in the Scottish Parliament is vastly under-resourced.

For the financial year 2011/2012 the level of funding for opposition parties in the House of Commons is £15,039.85 for every seat won at the last election plus £30.04 for  every 200 votes gained by the party, which for the Official Opposition makes a total of £20,050.24 per member. In the same financial year the level of funding of opposition Parties in the Scottish Parliament is a mere £7,094 per member. The votes element of the Westminster formula is designed, in part, to smooth out what can be stark variations in the sizes of oppositions in each parliament. There is no provision for such smoothing in the Scottish Parliament.

The result, therefore is that the main opposition party in the Scottish Parliament has seen its Short Money drop from £309,899.24 to £262,478 in a Parliament where the role of the opposition is more important than ever.

The Neill report in 1998 said of such events:

The Official opposition has a general duty to scrutinise the actions and the legislation of the Government.  We do not think it appropriate that it should receive a significantly smaller amount of Short money simply because it has recently suffered at the polls.  Indeed it can be argued that, if the party in government has an overwhelming majority in [Parliament], it is particularly important that the Official Opposition should be adequately funded and resourced.

When the Scottish Parliament debated the various statutory instruments which, among other things, gave them legislative competence over Short Money on 2nd June 1999 (exactly one month before Primary Legislative power was transferred to Holyrood) the opposition was united in its view that the level of Short Money was inadequate.

Mike Russell, lately Cabinet Secretary for Education, proposed that the Scottish Parliament refer a decision on what the level of opposition funding should be to the Neill Committee, and that the Parliament should agree in advance to accept whatever recommendation the committee made. He also argued that:

There is no doubt that by dramatically reducing the amount of Short money available to parties, which is, in effect, what the Westminster Government’s order does, the Labour party is attempting to ensure that the work of the Opposition parties is undermined.

Then SNP Deputy Leader and current Finance Minster John Swinney decried the government for showing “no hint of benevolence, no sense of fairness.”

Similarly, the then Scottish Conservative Leader David McLetchie argued that:

What is good enough for Westminster is apparently not good enough for the Scottish Parliament, and the apparent altruism of Her Majesty’s Government is only skin deep. In Westminster, Labour can afford to be generous as it is backed-at least for the time being-by a large parliamentary majority. In Scotland, Labour is doing everything it can to suppress opposition to its unprincipled coalition with the Liberal Democrats.

There can be little doubt that the then Scottish Labour leadership, arrogantly presuming that they themselves would never be in opposition, were attempting to choke off funding to the SNP. It wasn’t until the Scottish Labour Party were ejected from Government that the stark the folly of their presumption came to be realised.

A few days after the 2007 Scottish Parliament election Jack McConnell asked his colleagues for a substantial increase in their contribution to the Labour Support Unit from their individual allowances, which its fair to say was met with hostility from the more territorial Labour MSPs. Following her elevation to the Leadership of the Scottish Labour Party Wendy Alexander followed her Shadow Justice Secretary Pauline McNeill in calling for Short Money to be increased. Having only one seat more than Labour in the Scottish Parliament and been forced to live on paltry Parliamentary rations for their 8 years in opposition the SNP were understandingly unsympathetic.

But four years on things have changed radically. The SNP won well against a Scottish Labour Party which, in all honesty, deserved to lose. They have the first overall majority in a Parliament which wasn’t designed for such an eventuality. They’re guaranteed five years in government; Holyrood is to receive a raft of new competences from Westminster; and there will be a referendum on Independence for Scotland. As the newly elevated Cabinet Secretary for Parliamentary Business, Bruce Crawford can show the benevolence and sense of fairness of which Ted Short was so possessed, and which the Labour-led Executive so clearly lacked. And if fairness isn’t justification enough for the Scottish Government, maybe we can even call it “Crawford Money”.




										

					
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Lessons from Scotland for David Norris


By Stuart MacLennan | Published: August 2, 2011

					


Not for the first time, David Norris’ campaign for the Presidency of Ireland is having to pull itself out of the fire – only this time he has to do it with a half-empty office. Though his campaign managed to substantially claw-back ground over the summer the events of this weekend have left David Norris’ candidacy in tatters.


After it emerged that in 1997 Norris used his position as one of Trinity College’s members of Seanad Éireann to write a character reference for a former lover who was facing sentence in Israel for the rape of a 15-year-old, the Senator finds himself without a director of communications, a director of elections, a youth organiser, a social media manager, and many others. My own experience of elections puts the end of the Norris campaign down to two factors: firstly, Senator Norris’ political judgement; and secondly, the difficulties faced by Independent candidates and representatives more generally.


From a political perspective the first makes for better headlines but is, arguably, easier to overcome. During my time at the Scottish Parliament the Deputy First Minister, Nicola Sturgeon, was hauled before the Chamber of the Scottish Parliament to explain her decision to write a character reference for a constituent, on trial for benefit fraud, about whose character she had failed to make even the most basic inquiries (unluckily for Ms. Sturgeon he, in fact, had a previous conviction for benefit fraud). These incidents highlight the follies of legislators interfering with the judicial process.


As was rightly pointed out during the Sturgeon debacle it is not entirely uncommon for elected members to write character references for constituents who are facing sentence. However those who are going to do so should be wary of two potential traps:


    

  1. That you are absolutely certain of the good character to which you are attesting;
    2. 

  2. That in writing such a letter you are free from potential accusations of nepotism or favouritism, and that such a letter is one which you would write for any constituent in the same situation.
    3. 



Nicola Sturgeon fell foul of the former of these two traps; David Norris has fallen foul of the latter.


However more generally David Norris’ campaign has always been far more susceptible to falling into such obvious political traps because of the difficulties faced by independent candidates recruiting the very-best in political staff. Representatives from the political parties can usually draw from a very large, very broad pool of talent who’ve been wedded to your cause for years. I used to see the piles of CVs MSPs would have to sift-through when recruiting a Parliamentary aide. Often candidates with years of political knowledge and experience wouldn’t even make the long-list. Conversely, a dear friend of mine from one of the smaller parties regularly speaks of how difficult it is to recruit staff with experience of ‘the political machine’.


If small parties and independents want to recruit staffers with any campaign experience then that often means experience of single-issue campaigns, causes or charities, the private sector, or student politics. While all of these bring unique and valuable experience (and often larger parties would do well to remember that) it doesn’t quite compare to the experience that can be gained through the mainstream of the political parties.


And do not underestimate the importance of political staff. Despite being on a fraction of the salary of their political masters they’re often far more attuned to the political ether. Many have more experience in politics than their employers. Your staff can keep you focussed on your political goals; and rein you in when you’re getting carried-away. They’ll help you spot potential traps ahead, and anticipate the questions you never thought might be asked. These skills can only be acquired through having been weather-beaten by the party political machine. This is the real difficulty faced by independent candidates.



										

					
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Local Government in Scotland: Initial thoughts on the case for reform


By Stuart MacLennan | Published: July 20, 2011

					


I’ve recently undertaken some research into the structure of Scottish Local Government. This research should, in the fullness of time, culminate in a paper in which I will make the case for reorganising Scotland’s Local Authorities however as I know readers of this blog will be squirming in anticipation of such a paper I thought I’d share some of my thoughts on these matters as I conduct my research.


The present structure of Scotland’s Councils was introduced by the Local Government etc. (Scotland) Act 1994. 29 Unitary Authorities replaced nine Regional and 49 District Councils on the mainland – the three Unitary Island Authorities remained largely unchanged. The provision of Police and Fire & Rescue services was handed over to Joint Boards based roughly along the old Regional boundaries, and authority over Trunk Roads was passed upwards to the Scottish Office (and now the Scottish Executive).


These authorities range in size and population. Clackmannanshire’s population is less than 10% that of Glasgow City’s: 50,540 to 588,470. While Highland Council covers an area of 25,659km2 Dundee City covers a mere 60km2. While some authority boundaries (such as Fife) pay considerable regard to historic county boundaries others (such as East Dunbartonshire) do not.


Given that the existing local government structure in Scotland was introduced in the dying days of a Conservative Government, and opposed by the majority of Scottish MPs, Councillors and voters – why hasn’t anyone tried to reform it


After all, it’s not like reform of public services and local government haven’t been on the agenda at all. The Liberal Democrats demanded and won Single Transferrable Vote for Council elections as the price of a second coalition with Labour. The Scottish Government have piloted direct-elections to Health Boards. All three major parties in Holyrood support the merging of Scotland’s police into a single force. Meanwhile neighbouring Councils are moving towards sharing service provision as a means of generating efficiencies.  It seems incredible that despite these reforms the question of the structural reform of local government hasn’t been asked.


I intend, therefore, for my research into local government to extend beyond simply councils. I intend to consider Policing and Fire & Rescue Services, which were once provided by local authorities, as well as Health Boards, Local Enterprise Companies, Transport Partnerships, and Valuation Boards all of who play key roles in the government of and provision of public services to Scotland yet are subject to fairly light democratic oversight.


Reform will not come easily though.  With the prevailing political wind in local government moving in the same direction as Holyrood the SNP, who once might have been tempted to consider reform aren’t now going to dismantle a system of local government that has seen them emerge as the largest party for the first time in history and still looking to make huge gains. Meanwhile Councillors aren’t in any great hurry to run transport, police, or fire and rescue services as part of their elected council role when they can top-up their salaries with appointments to outside boards.


While it is my intention to demonstrate that reform is necessary, it is not my intention to demonstrate how these reforms might be achieved. I’ll leave that to the politicians…



										

					
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Welcome


By Stuart MacLennan | Published: July 20, 2011

					


Hullo and welcome to my new blog. I’m sure most readers will remember me from my brief and spectacularly unsuccessful spell as a Parliamentary Candidate. However I’ve since left the political sphere behind in favour of the wonderful world of academia.


I’m just starting my PhD in the Faculty of Law at Trinity College, University of Dublin. The interim title of my thesis is “What are the inadequacies of Articles 5, 7 & 12 of the OECD Model Convention with Respect to Taxes on Income and Capital in an e-Commerce enabled world?” – I may have to find something snappier.


During the course of my study I hope to analyze our system of global taxation and what we broadly want it to achieve. I will then consider three key elements of international taxation: the taxation of business profits; the taxation of royalties; and the principle of ‘permanent establishment’. I hope to consider the concepts of constitutional and fiscal sovereignty and how they apply to the internet, how to equitably tax business profits and royalties derived from intellectual property with no fixed location, and how to use the global economic system in order to bring about reforms.


I hope to use this blog for three purposes:


    

  • to share my research into the fields of Taxation, Trade and Constitutional Law;
    • 

  • to allow me to condense my thoughts on individual aspects of a broader study;
    • 

  • to generate feedback and discussion.
    • 



This isn’t a partisan blog in any way. I’m still a socialist, and a member of the Labour Party, but I’m no longer a political animal. As for the Twitter thing I regret that deeply. I’m very sorry for any offence I caused to anyone, and I’m very sorry to all of the people whom I let down. I’m hoping to put that life behind me and move on – and this blog is part of that – so don’t expect me to as *ahem* forthright with my views as I once was.



										

					
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I’m a 25-year-old PhD candidate at Trinity College, Dublin, specializing in International Trade & Taxation Law. In a previous life I was an adviser in the Scottish Parliament and a Parliamentary Candidate, but the less said about that the better.
    
		
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