Legally, can Holyrood "block" Brexit?

"100 days on from the referendum and with up to six months until the triggering of Article 50 it is time the government got serious and put our economic interests and membership of the single market at the front of their negotiating plans. With a clear majority in the Scottish Parliament for retaining membership of the single market - expressed as recently as last week - it is difficult to‎ envisage the circumstances in which the Scottish Parliament would give consent to any legislation that did not guarantee this."

So said Nicola Sturgeon's Bexit minister, Mike Russell. But what did he mean? What precisely can and can't Holyrood do, in resisting the many-layered legal complexities of Brexit? Several souls have asked me about this other the last day or two. So here's the lightweight primer on the law. Brace yourself. It gets a bit tricky.

First thing's first: Holyrood has no legal power to veto or block Brexit. Start with the basics. Under Schedule 5 of the Scotland Act, foreign affairs – including Britain’s relations with the EU – are matters reserved to Westminster and Whitehall. Under section 29 of the legislation, Holyrood is prohibited from passing its own laws concerning nuclear weapons, defence, and so on. Legally, these are Westminster's purview. And because they are Westminster's purview, MPs and the UK government, don't need the Scottish Parliament's permission to alter the law on reserved matters. 

But there are some kinds of Westminster legislation which do require the nod from MSPs. This isn't a matter of strict law - but of constitutional convention. This convention was set out in section two of the 2016 Scotland Act. "It is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament," it said. As I pointed out at the time, you can feel the caveats in the statutory language: "normally", "recognised." Whitehall's clear view is that this section doesn't limit the sovereignty of the London parliament to make or unmake any law whatever, irrespective of Holyrood's complaints.  

But this statutory recognition includes only part of the convention. The UK government has consistently recognised that Holyrood's consent is necessary, if Westminster wants to change the legislative competence of the parliament, or to add or subtract from the executive competence of Scottish ministers. One good example of that was the 2016 Act itself. David Mundell recognised that the Edinburgh parliament had the right to refuse the new powers, and a vote was taken. 

This convention proves some - very limited - constitutional security for Holyrood from the prospect of Westminster abusing its sovereignty to reverse its decisions in devolved areas. But it doesn't apply beyond that. Holyrood’s consent clearly is not necessary to activate Article 50. Only politics can prevent the hard Brexiters in the Tory government from dragging us out of the single market.

Through some creative  lawyering, you might just be able to cobble together an argument and get a case up on its feet.  In the High Court in Belfast, litigants are attempting precisely this. But their chances of victory are remote. The court case is really about boosting the political salience of the situation in Northern Ireland. As someone tweeted as me, in response to my Times column this morning, if Scotland counts for "nothing" in Brexit Britain, how much the worse for Ulster and its people? 

So that's the bottom line. Holyrood's consent is only needed if Westminster wants to legislate about devolved matters. But even then -- failure to give consent can be overriden by the exercise of parliamentary sovereignty. So what, then, can Mike Russell have meant when he said Holyrood might refuse consent for Mrs May's Great Repeal Bill? And what effect would refusing consent have anyway?

You've got to recognise that EU law is everywhere in UK law, and it isn't neatly packaged in one big book of rules, embossed in gold and bound in red buckram, easily tossed onto a bonfire. EU norms are enshrined in a dizzying array of documents, from the European Communities Act 1972, to ordinary legislation, to regulations, to the Scotland Act itself. In terms of UK constitutional law, some areas principally regulated by EU law are devolved, others not. The UK Equality Act 2010, for example, gives effect to European non-discrimination directives -- and is for the main part, a reserved matter. Holyrood can't amend or repeal it. 

Fishing, on the other hand, is only very partially reserved to the London parliament. But to ensure Scottish Parliamentarians didn't go voyaging on stranger tides, in 1998, MPs decided to constrain the new parliament's powers. Section 29 of the Scotland Act requires all Scottish legislation comply with the rights set out in the European Convention on Human Rights -- and EU law too. That's why, for example, the Scottish Whisky Association were able to take the SNP's minimum alcohol pricing legislation to court. The liquor manufacturers argued that the legislation interfered, unlawfully, with the European single market, by discriminating against producers able to pump out plonk on the cheap, by requiring them to sell their products at an inflated cost.  The requirement to tender for ferry services is another -- controversial  -- example of EU law at work.

The critical point is -- the Great Repeal Bill seems likely to stretch across reserved and devolved issues simultaneously. Some parts of it will require the Scottish Parliament's consent, others not. But as Professor Colm O'Cinneide, from UCL recognised, the legislative consent motion before Holyrood "may have to be drafted in broad terms, and of course will need to cover EU law provisions" written into Scotland's devolution settlement.

Which is where Mike Russell's "block" comes back in. Under the Scotland Act, Holyrood must obey EU laws, on fishing, agriculture, non-discrimination. If the PM wants to strip out those rules or to change Holyrood’s powers – she will need to secure the consent of a majority of MSPs. As things stand, it is perfectly conceivable that Scottish politicians will decide to defy Westminster. Mrs May would then have to decide whether to ignore their objections, riding roughshod over constitutional principles -- or to respect them, and leave Holyrood subject to EU law, but paradoxically, outside the European Union.

It isn’t necessarily obvious, however, why our parliamentarians would refuse their consent. It isn’t the Scotland Act restrictions which guarantees the rights of Scots to move freely, and to work and resettle across Europe – but the UK’s dying EU membership. Many EU rules are, in principle, about sharing burdens as well as benefits, while keeping an eye out for backsliders, free riders and chancers. Every state, for example, is likely to be inclined to discriminate in favour of its domestic industries in the economy, and to cultivate a more unfree market. EU single market rules seek to eliminate this across the whole bloc. 

But why keep the rules, when you aren’t part of the club? Unless the requirement to adhere to EU law was stripped out of the Scotland Act - we'd be looking at carrying their burdens, without seeing their benefits. An invidious position, no? There are a few more and less convincing answers to this objection. The symbolism of such a vote in Holyrood is obviously significant. Most folk won't follow the legal niceties of what the consent procedure actually represents. It will, inevitably, be seen in simpler, more political terms. Does Holyrood capitulate or not in the teeth of the Tories' haughty insistence that Brexit is their baby, and it will be midwived into monstrous shape only on their terms? That is how it is likely to be seen - presented - and understood by many.

For the SNP, retaining EU law might also represent a statement of intent about an independent Scotland’s future inside the Union. Why radically diverge from EU rules, when you want to join the club, sooner rather than later? Shadowing (some) of the regulation could be seen as a significant gesture of this kind. But you could do this, without making it a legal requirement to legislate in a way which is compatible with EU principles. And let's be honest: eliminating EU regulation would create opportunities as well as challenges, to take policy positions prohibited by single market rules.  

Alan Page, Professor of Public Law at the University of Dundee, has identified another - slightly trickier - issue with the Great Repeal wheeze, in his short paper for the Holyrood committee scrutinising Brexit. The key point is identified in paragraph 13 of Professor Page's note.  He is concerned about the possibility of UK government ministers disapplying and altering EU law concerning devolved matters in Scotland, without any reference Westminster, or to the Edinburgh government or Parliament. Law is made in many ways. One important source is what is called "subordinate legislation" - generally powers exercised by ministers in the government, often with lighter scrutiny from MPs than full-blown Act of Parliament. Mrs May's government seems likely to use this tool to prune the EU law which applies in Britain. But there's a problem. Professor Page:

"At the moment there is no requirement of the Scottish Parliament’s consent to UK subordinate legislation transposing EU obligations in the devolved areas; nor is the Parliament routinely informed about such legislation. Were obligations to be transposed by UK Act of Parliament the Scottish Parliament’s consent would be required, but if they are transposed by subordinate legislation its consent is not required. The situation could thus arise in which the UK legislated extensively in areas devolved to Scotland without seeking the consent of the Scottish Parliament as there would be no requirement of its consent in relation to subordinate legislation altering the effects of EU law in the devolved areas. In my view, this represents a significant potential gap in the framework of Scottish parliamentary control over UK law making in the devolved areas, which the Scottish Parliament should be alert to the need to close should UK Ministers be given the power to revise EU law in the devolved areas."

If Mrs May's Great Repeal Bill laid the foundations for this kind of arbitrary mode of decision making, without reference to devolved institutions, the Scottish Government would understandably hit the roof, and refuse to give their blessing to her Bill. They would be right to do so. From a political perspective, all of this is pungent. Legally, however, Holyrood can really only stage a weak, rear-guard action on the Brexit fallout. So long as we remain tethered to the UK government, we're tethered to its fate, outside of the European Union. Despite Mr Russell’s fighting talk, the legal scope for Holyrood to make Brexit mischief remains very limited. As for the political opportunities? Well: they're a different matter entirely.

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, 

Justice, divided?

A niche interest, perhaps, but let's talk about Holyrood's Justice Committee. Christine Grahame's committee often pops up on the pages of this blog, sometimes favourably, and sometimes taking a bit of a shellacking.  

Today, Holyrood's sexy Standards, Procedures and Public Appointments Committee reported, making recommendations about how the Scottish Parliament should organise its committee work in future, scrutinising Bills, exploring how new legislation is actually working in practice, and setting their own investigative agenda. But don't be dazzled by the dreary name. This is important stuff. The Committee is lukewarm on the idea of Holyrood directly electing committee convenors, and recommends that in future, committees should be limited to seven MSPs in total. But on the justice brief, the group has this concrete suggestion.

Justice committee 

23. The one exception is the Justice Committee which, in every session of the Parliament to date, has been more consistently burdened with legislation than any other committee. In session 2 there was an experiment with two Justice Committees sharing the same remit. We do not suggest repeating this approach, which only led to confusion. However we note that, in this session, the Justice Sub-Committee on Policing has worked effectively to pick up major issues which the main committee did not have time to cover. 

24. We do not recommend sub-committees as a long term solution. We think that they raise issues of accountability to the main committee which are difficult to manage. We think the Parliament could consider for next session establishing two justice committees but this time with distinct remits – analogous to the split in the House of Commons between Home Affairs and Justice. 

25. We recognise that there are downsides to this option. We point out that the alternatives are also unsatisfactory: they are for the Scottish Government to bring forward less legislation in this area; or for the Parliament to accept that the Justice Committee exists mainly to scrutinise bills and will never have much time to initiate its own inquiries – a clearly undesirable scrutiny gap. 

We recommend that the Parliament should consider establishing two justice committees next session with different remits. If this option is trialled, we recommend that our successor committee reviews it after the first two years of the session. 

Intuitively, this seems like a sound conclusion. Grahame's committee has been rammed with work this session. Ministers are always in favour of criminalising something new, or sticking a new name on an old infraction. NGOs nibble away at MSPs incessantly. And you are never in want of a backbencher or two, with a nut they believe only a sledgehammer can crack. The accelerating pace of criminalisation has proved unremitting. Justice is snowed under - and save for the odd flash of steel - have had next to no time to cast a critical eye backward over the laws Holyrood has passed, or forward, pursuing its own agenda distinct from the Scottish Government's legislative programme. This is not desirable.

But how to distinguish the two committees proposed? Today's report is hazy, and the Westminster parallel prayed in aid isn't particularly helpful here. Keith Vaz's select committee traipses after Theresa May's Home Office, while the Commons Justice Committee chases Michael Gove. There are obvious policy overlaps between these two UK departments' activities, but from a quick look at their current agenda, the home affairs brief focusses almost entirely on reserved matters which remain outwith Holyrood's ken: drugs, immigration, terrorism. 

Between 2001 and 2007, MSPs formed two justice committees, with identical remits, without demarcating any special areas of focus, one from the other. This was daft, providing no opportunity to build up expertise across the policy brief, and no compensating rational divisions of the committees' functions. Reprising this approach in the next session would be a mistake. But if they see the wisdom in today's recommendation, how should MSPs proceed in the next session?

Perhaps the most obvious, wisest and most coherent way of distinguishing between the two committees would be to give one a criminal justice lead, and to proccupy the other with civil themes. Police, prisons, prosecutors and the criminal law on one hand, legal aid, human rights, tenants' rights, and defamation reform on the other. At times this session, a preoccupation with the former has felt like it has crowded out that latter. I grant you, you can't - shouldn't - look at either criminal or civil justice in isolation. Some topics cut across both branches of law, and its professionals and institutions. But a flexible but clear division of functions could only help setting the committees' hopefully more autonomous investigative agenda. Good call.

Utter scumbags

The intellectual and political problems with the Tory indictment of the Human Rights Act, the European Convention and the Court of Human Rights are legion. The idea of "Europe's war on British justice", and of a meddling Strasbourg Court, is blown to bits by the data. The UK lost eight cases in the European Court last year. Chris Grayling and Theresa May argue that losing 0.48% of the cases lodged against you represents an illegitimate and hyperactive form of judicial activism. 

I believe that the European Court's jurisdiction represents a modest check on the overwhelming powers of the state to crush the life, liberty and privacy of the individual. It is this government's overreaction to the modesty of the European Convention's protections which makes it so contemptible. The Lord Chancellor's dismal suggestion that only the popular and the agreeable parts of our community should have their qualified rights protected spectacularly misses the point. 

I can accept, politically and philosophically, that there is a serious debate to be had about the desirability of entrenching fundamental rights in law, how far you go, and the extent to which we empower (in our tradition, an unelected and socially and professionally narrow) judiciary to take important political decisions in the absence of a participative democratic process. Reasonable people, to my mind, can reasonably differ on these questions. 

What I cannot accept, however, is the properly grotesque argument which this contemptible, reckless, immoral and intellectually bust Conservative Party is running to justify and explain its human rights plans. In Grayling's thumping rhetoric to the grinning faithful in Birmingham, you do not see a meaningful and serious-minded parliamentary deliberation on the contested understandings of human rights, but an abject and irresponsible failure to engage in any intellectual or morally credible way with fundamental rights ideas.

Can it be right - can it ever be right - to deliver anybody over into circumstances where we reasonable expect they will be tortured, subject to inhuman and degrading treatment or the flagrant denial of justice? According to David Cameron and his party, this should be an option, and Jehovah rot them, those "unelected Euro judges" in Strasbourg are holding up the rendering flights. The interfering so-and-sos. Electric batteries are running down in dank cells, unused, somewhere in the world. The state torturer's rope hangs idle. All because some piffling jurist from Luxembourg believes that it can't be right to deport anyone - even your worst enemy - into the hands of humanity's darkest and most inhumane functionaries. Britain deserves better. We must scrap the Act. 

This isn't a civil and anxious debate about the proper scope of privacy rights, or the right to liberty, but a tantrum, impervious to the facts. It's the work of a smug toddler standing triumphant over a fly he's malevolently depinioned. "Aren't I a clever boy?" he gloats. The moral compass of this Conservative Party is a forgotten aftermath of shards and broken glass, arms bent and buckled. Theresa May tells cheap jokes about cats, glowing with the glib self-image of being the new deputy in town, tough on crime, tough on some undifferentiated, disagreeable them, animated only by brisk and matronly common sense. I can't begin to describe the malevolence, tawdriness and irresponsibility of this attitude.

The brutal reality of the Tories' human rights rhetoric is not that it aims to repatriate the human rights debate, but to liberate the government from elementary principles of fairness, humanity, compassion and justice. What they are proposing isn't just politically disagreeable: it is monstrous. See no evil, hear no evil cannot be a principle of British justice. 

Nobody with any moral sensibility could make the case for deporting folk to places where there is a real risk they will be tortured. Nobody with an ounce of responsible humanity could promote it. But this government, this shallow bunch of irresponsible, gut-gripped eejits don't care. It breaks my heart and burns my blood.

After all, how can the trivial matter of connecting one of your fellow, sentient creatures up to a car battery compare to the overwhelming importance of attracting a few extra UKIP votes in the debatable lands of Essex and Kent? How can the soles of feet, beaten black and blue, measure up to the significance of being able to give a sleek and populist address to your fellow Conservatives at Conference, who cheer like dunderheads, more than drowning out the distant screams? Who gives a damn if some villainous foreigner with disagreeable views finds himself suspended from the ceiling, arms half wrenched from their sockets? 

This is Britain. We have the right to live in freedom from such persons. I'm sure you'll find it in Magna Carta somewhere. Why should we care that we've pitched them into this disaster? After all, it isn't our police, our secret services who are sodomising them with truncheons or connecting up their genitalia to car batteries. Lie back and think of England. Rejoice in the liberties of a freeborn Briton: you've earned them. You're not a gypsy, or a criminal, or someone whose views the central government finds disagreeable. Your right not to be tortured isn't trivial.

Congratulations, comrades. We've finally uncovered Britain's moral mission in the world: to lend a helping political hand to tyrants and torturers in Europe, and the great wild world beyond. To excuse their torture chambers and their mistreatments of their citizens, to align ourselves with the Belarusian tyranny, and the persecutors of Kurds, and the Roma. To embolden, in short, everything most ghastly about illiberal state apparatuses. All for the sake of getting a modest electoral edge over Nigel Farage.

 

These people disgust me. 

We cannot deliver people up to torturers' chains and hooks and shrug, unmoved, and say "it is nothing to me guv'" over the anguished cries of the people - the fellow creatures - we make their victims. Yet this is precisely what David Cameron and his allies now propose, for the sake of a sympathetic response from the eurosceptic tabloids. They chafe against the modest restraints of the European Convention, flinging every cheap jibe and intellectually lazy epithet at the judges of the European Court. They want the liberty to do wrong - horrible, horrible wrong - for the sake of a human rights fairytale and good headlines in the Express. Nothing better expresses the festering rot which gnaws at British politics.

These people are scumbags. Utter, utter scumbags.

Devolution: Grayling's human rights petard

Joy be. "So at long last, with a Conservative Government after the next election, this country will have a new British Bill of Rights to be passed in our Parliament rooted in our values and as for Labour’s Human Rights Act? We will scrap it, once and for all." 

Earlier this week, the Tories put some flesh on the bare bones of Cameron's commitments in his conference speech, in a document entitled "Protecting human rights in the UK." The document's only reference to the implications of the wheeze for the devolved authorities in Northern Ireland, Wales and Scotland is the banal observation that:

"We will work with the devolved administrations and legislatures as necessary to make sure there is an effective new settlement across the UK."

English lawyers like Carl Gardner and Mark Elliot have already begun to put the logic of Chris Grayling's madcap scheme to the sword. To some extent submerged in all of this, however, are the implications for Scotland. And here it gets a wee bit complicated. Professor Aileen McHarg has a comprehensive blog on point up on the UK Human Rights blog which surveys the key issues. What follows is a more compressed account, given a more partisan topspin.

A couple of days back, David Maddox published a story on the Scotsman ("Scotland exempt from Tories' Human Rights axe"), which carried a remarkable, clearly edited and utterly incoherent quote from an unnamed Scotland Office spokesman, claiming

"... that human rights legislation is devolved to the Scottish Parliament because it was “built into the 1998 Scotland Act [and] cannot be removed [by Westminster]."

Cue a good deal of misplaced jubilation from folk, keen to see fundamental rights retained in Scots law. Regrettably, the comments attributed to the spokesman, and uncritically printed by Maddox, are credibility-dynamiting rot. They're abject drivel.

Firstly, the Scotland Act is Westminster legislation, and susceptible to amendment or repeal by MPs. To say something is "built into" the Act is neither here nor there. Secondly, the Human Rights Act is categorically not "written into" the Scotland Act. This is a common conflation, but an extremely problematic one. While you won't find human rights listed as a reserved matter in Schedule 5, the Human Rights Act itself appears as a protected enactment in Schedule 4. Short version: human rights are devolved, and Holyrood can pass laws concerning them, but the Scottish parliament is not allowed to repeal or to change the Human Rights Act as is.

As Aileen writes, Scotland is currently subject to two distinct human rights regimes.

The Scotland Act requires Holyrood legislation and Scottish ministers to comply with European Convention rights, but nothing more than that. If legislation or ministerial action violates your fundamental rights, you can traipse off to court and get the offending law or subordinate legislation struck down by the courts. The silence at the heart of the Tory human rights plans about what will become of these devolve protections and constraints is deafening. 

The octopoid Chis Grayling shows no awareness whatever about the devolved dimension, which extends not only to Scotland, but to Wales, and to the Northern Irish Assembly, where the incorporation of human rights formed a core plank of the Good Friday Agreement. All for the sake of a few extra votes in Essex, and the lawful authority to deport people where we reasonable expect them to be tortured, or to be subject to inhuman and degrading treatment, or the flagrant denial of justice.

So much for an ethical foreign policy. The declared aims of the Prime Minister, Theresa May, and the Lord Chancellor are nakedly monstrous and unjust. They make my blood boil. Alyn Smith was right before the referendum: there is bugger all we can do to prevent it within the Union. Not with a Tory government in the grip of a victim-fantasy and strung along by it own fairy tales.

By contrast, the Human Rights Act extends to all public authorities in Scotland. Schools, local government, NHS hospitals. If Westminster abolishes the Human Rights Act, Holyrood and the Scottish Government will remain bound over to observe Convention rights, but Glasgow City Council and the police will be liberated from their obligations to respect freedom of religion and conscience and the privacy and home life of everybody they encounter.

Cue another level of complexity: Sewel motions, or legislative consent motions. Here's where things get politically interesting. As we know, powers devolved are powers retained. Westminster retains the right in law to legislate for devolved matters. In practice, however, that right has been circumscribed by the convention that consent from Holyrood is necessary (a) where Westminster proposes to legislate in a devolved area (for example, the whole-UK civil partnerships legislation of 2004) or (b) where the UK parliament propose to change the scope of the Scottish Parliament's legislative competence (for example, the 2012 Scotland Act, which received the nod from the majority of MSPs).

Under the current convention, the proposed repeal of the Human Rights Act (insofar as it applies in Scotland) and the introduction of any British Bill of Rights proposing a different human rights protection mechanism requires legislative consent from Holyrood. Whichever way you slice it, the refusal of consent looks odds on, either to any Tory plans to (a) eliminate the ECHR provisions from the Scotland Act, or (b) to introduce any new, watered down British Bill of Rights. 

With a Nationalist administration in Edinburgh, these issues take on an additional piquancy. Much more attractive, you might well think, to adopt distinct, Scottish human rights legislation, extending to all public authorities subject to Holyrood's jurisdiction. This approach may be justified, not least, by some of the absurdities of the Bill Grayling has sketched in outline, drubbed by various legal commentators quoted above.

We might even consider folding additional rights into that Scottish legislation which are not to be found in the European Convention. The rights of children, perhaps. We can use our imaginations. As Professor McHarg notes, there is a distinct possibility of fragmentation and complexity here, as both reserved and devolved authorities operate in Scotland and both would be subject to different human rights regimes. On the other hand, let's not make the best the enemy of the good. If Cameron is returned to No. 10 with a majority, "Labour's Human Rights Act" - which was, it should be remembered, supported by newspapers like the Express when it was adopted - will be a dead letter. Far better for the Scottish Parliament to set a different example, however imperfectly.

But one thing's for sure: despite the blithe spirit of indifference animating the Lord Chancellor's fag packet proposals, the fuse has been cut and the taper set to it. The devolved politics of Human Rights Act repeal looks dead set to explode.

Two European Futures

There are many strands of contemporary UK policy which are, in their own ways, dismaying. One of the more underexposed in the independence debate is the frequently irrational spirit of anxiety gripping Westminster and Fleet Street about all things European. At times, it has shades of a persecution complex. Underlined by Douglas Carswell's defection to UKIP from the Tories last week, it has an obvious and ongoing European Union manifestation, but also touches on European human rights norms, and the jurisdiction of the European Court of Human Rights in Strasbourg. 

These issues cannot be tucked away behind a safe little firewall from the constitutional debate in Scotland, to be considered at a later date. The No campaign has made much of the risks and uncertainties of an independent Scotland's EU accession. They have focussed not only on timeline and terms of an independent Scotland joining the other 28 member states: they couldn't resist overplaying their hand, recklessly drawing attention to their own weakest spot. Against almost all of the evidence and reasonable commentary, for months, Better Together have been stirring up the idea that Scotland would be pitched out of the EU into the north Atlantic cold. The game, it seems, continues with reports of their activists dishonestly telling Polish voters that their families would be uprooted if Scotland votes Yes next week.  

But a moment's consideration will tell you that this is a political boomerang for the No campaign, bedevilled by its own rich superabundance of risks and uncertainties about the United Kingdom's continued participation in the European Union and its legal recognition of your basic civil and political rights. In a piece for the Journal today - "Damned lies and bogus statistics..." -  I take a look at the facts and figures, lies and fictions, which currently dominate the UK airwaves and David Cameron's cabinet, on Britain's participation in these modest international schemes to provide some human rights remedy, some modest protection for your privacy rights, your liberty, your right to be free of torture, and not to be exposed to flagrant injustice or inhuman and degrading treatment.

It is a grim reminder of how precisely we are supposed to be Better Together. It isn't the whole story, certainly, but it is an important, urgent part of the wider UK picture. Amid the tempest of dross, there have been some wonderfully sensitive and nuanced pieces of writing in recent days from those who intend to vote No, with Chris Deerin and Alex Massie standing out for me, and I imagine, for others. I don't share their convictions on the constitution, or sense of British identity, but you can admire the graciousness of the prose and the evident thoughtfulness undergirding it. David Cameron asked a choice audience today not to "break his heart." That the campaign must have an emotional dimension always seemed to me entirely proper.

But we can't let these compelling night thoughts on the union sunset distract us from the real bother which a No vote drags us into, unavoidably. If we vote against independence on the 18th of September, there is every possibility that Scotland is going to crash out of the ECHR, on the basis of a fairy tale. And to adapt Tam Dalyell, we find ourselves set, by the raging fever gripping UK politics, on a motorway, with fewer and fewer turnoffs and exits, to a future outside of the European Union, whatever Scots might think either way.

Tossed into the steaming cauldron of the House of Commons, it makes for a potent combination: a witch's brew of misplaced anxieties, madcap delusions of victimhood, and an imperviousness to pretty simple facts. With independence and continuing union, there are opportunities and risks, costs and benefits. If you are inclined to weigh the stability of the status quo against the uncertainties of independence, put aside that misconception now. If you value the judicial protection of your fundamental rights, if you think that the European Convention represents a small, embattled achievement rather than the cartoonish abomination which the inner circle of Cameron's cabinet see, Scotland's place in the Union looks like the riskier option by far.  All you need do is vote yes to dispel the fairy tale.

Read the full piece here.

How many ECHR cases did Britain lose last year?

A new year, a new round of unelected-euro-judges-waging-war-on-British-justice watch.  

The European Court of Human Rights has had a relatively quiet start to 2014 in the pages of the UK press.  Somewhere, I'm sure, a Tory MP is trauchling away at the idea that the Court is systematically subverting our domestic judicial and parliamentary processes - with the bad grace of doing so as the same time as having a piffling Luxembourg jurist as its president - but the daily hate agenda seems to have shifted back from Strasbourg to Brussels. An understandable shift of emphasis, you might well think, given the approaching elections to the European parliament.

Sooner or later, however, the Court will produce an opinion which offends the blue-rosetted tribes of the House of Commons, and the europhobic victim fantasies will be dusted off and trotted out. Today, the Court has published its annual account of its work over the last year. Buried at the bottom of this substantial report is a niggling little statistic which everybody who hopes to understand the Court's real impact on Britain should have at their fingertips.  

For our illustrious Lord Chancellor and Home Secretary, every passing decision of the Court is yet more evidence of the institution's overreaching desire to subvert British democracy. Whatever the merits of a particular decision, and whatever the demerits of the legal regime being challenged, you can rely on the justice ministers of the current government to denounce it in shrill terms. 

If you are already predisposed to believe the underlying claim - that Europe is robbing us of our freedom to be beastly to beastly people - every passing precedent may appear just another casualty of "Europe's war on British justice". Doesn't it feel as if the European Court is always finding the UK in violation? Wasn't there that article just the other week about some disagreeable sod using human rights arguments to force the Home Office to give every con a weekly bath in asses' milk? This, as Phil observes over at A Very Public Sociologist, is stupid empiricism. We have to take a look at the wider picture. And that picture blows these delusions to bits.

So how many cases did Britain lose last year? Thousands? Hundreds? The Court certainly had the opportunity, taking decisions on 1,652 applications submitted against the UK during 2013. And did the malevolent band of Maltese and Andorran judges, as expected, glory in Britain's discomfort, substituting their own preferences for parliament's again and again?  Er. No. Not really.

During 2013, the Court found that the UK had violated Convention rights in just eight of these cases. If this tiny clutch of judgments represents war on British justice, I'd love to know what an acceptable number of adverse findings might be. This is two fewer adverse judgments than last year, representing an overall rate of defeat before the Court for the government of just 0.48% during 2013.   

Take a moment to take that in, and keep it in your pocket the next time a Conservative minister or parliamentarian or Express reading pub bore tries to convince you that the Court's judges are systematically undermining British democracy.  In 2013, as in 2012, this is a pitiful victim fantasy or a smokescreen: crabbit, feeble and entirely unjustified self-pity.

Tory Human Rights Trolling Vol. 145

How's this for a Union dividend? If David Cameron's government secures re-election, the Human Rights Act is for the chop, as is Britain's participation in the European Convention on Human Rights.  So says the Home Secretary Theresa Gray, and Chris Grayling, the Lord Chancellor. 

The British judge on the court will receive his P45. All those elected "unelected Euro judges" will have to spend their time deciding cases lodged against Malta and Liechtenstein instead.  Britain can "repatriate" the ten judgments it actually lost in Strasbourg's "war on British justice" last year.

And the Daily Mail, with exhausting predictability, will eventually turn its fire on our actually-unelected UK Supreme Court over some decision or other. The rhetoric about judicial encroachment on the sovereignty of parliament serves perfectly adequately against domestic tribunals too.  While the hacks will be deprived of the diverting satisfactions of europhobia, the old anti-judicial nostrums still have spice.

Last week, Mark Elliott of the University of Cambridge took an informative look at what might come next. On the domestic side, will the fabled "British Bill of Rights" take shape to replace the repealed human rights protection, or will the Tories take us back to the true-blue days before Tony introduced the Act in 1998? Internationally, it isn't at all clear that we can denounce the ECHR and remain inside the EU, which has, itself, recently acceded to the regime.  Bring it on, some Tory MPs might say. It is easy to make fat-headed speeches in support of such a proposal, but rather harder to realise in practice.

What's missing in all of this is Scotland, and the rest of the devolved powers. Of Holyrood, the Welsh Senedd and Stormont, our ardent Unionist government has said diddly squat. And there's a snag. Yes, the Human Rights Act applies across the UK. Yes, Westminster could repeal the law.  But there's more. ECHR protections are separately written into the Scotland Act, and the Wales Act, and the Northern Ireland Act. Neither the legislative assembles and parliaments, nor their ministers, can act in a way which conflicts with the fundamental rights protected by the ECHR or EU law.  If they do, the courts can and will step in, to keep the legislatures and the politicians in line.

Leaving the jurisdiction of the European Court, or repealing the Human Rights Act, will leave these provisions intact. In the discharge of his ministerial functions, Kenny MacAskill will still have to uphold Article 8's protections of the right to privacy and home life. Holyrood's legislation could still be challenged and knocked down by courts in the name of the property rights, enshrined in the first Article of Protocol No. 1 to the European Convention. 

Legally, Westminster could certainly amend the Scotland Act too to knock out these clauses, but will that be politically possible? I'm not so sure. Nothing in Grayling or May's rhetoric suggest they have thought about the implications of the devolved powers at all, or have the slightest awareness of this considerable problem with their plans.

Since 1998, the constitutional convention has evolved that amendments to devolution legislation must be approved by the parliament they relate to. Thus, Holyrood debated, scrutinised and sanctioned the Scotland Act, passed by Westminster in 2012.  The bottom line: if we vote No in 2014, and the Tories try to knock out the ECHR protections in the Scotland Act, Holyrood would arguably be in a position to veto the idea.

Would it do so? As others have noted, the SNP government's line on human rights has not always been consistent (and in some cases, even intelligible). Salmond has dragooned the idea of judicially-enforceable constitutional rights, and remaining in the ECHR, into the independence debate. If you look back through the legislative record, however, you'll find instances (in the light of Cadder) where both the First Minister and his Justice Secretary have seemed to argue that the ECHR protections written into the Scotland Act should be eliminated.  If the Tories were in a position to offer the Scottish Government just that, would they decline? What about the Welsh Assembly, or the Legislative Assembly in Belfast? A question for another day.

Overall, though, I'm struck yet again by how little these London politicians regard, respect or even understand the evolutions in Britain's constitution of the last almost-two decades. In his Memorials of His Time, the Scottish Whig judge Lord Cockburn observed that "we had wonderfully few proper Jacobins" in this country during the 1780s and '90s, despite the fears of a reactionary Establishment.  Today, it seems, you find marvellously few proper Unionists in this Conservative government.

♫ You take the high road and I'll take the low road ♫

As eager-beaver listeners cannot but have noticed, there was a certain gap in our routine For A' That podcasting last Sunday.  Just a wee dab of damnum fatale. In compensation, we've two episodes of the show scheduled for this week, going back to our usual structure of one of Michael's Scottish independence podcasts appearing on Wednesday, and us, back to our usual Sunday spot.  

Our guest today was Pat Kane, scribbler, chanteur, and currently a board member for Yes Scotland.  Up for the blether this week, who are Britain's narrow nationalists now? Theresa May's human rights trolling, high roads, low roads, ambivalence and storytelling in the Scottish independence debate. Pat asks, is folk singer Karine Polwart right? Last month, she wrote:

"Let the Yes campaign be positive and hopeful, yes. But let’s allow it to be, where it needs to be, angry and bold too, please. And let’s harness more imagination to the urgent transformative telling of better stories about how we want to live."

One year since it came into force, we also had a wee chat about football, masculinity, sectarianism, and the Offensive Behaviour at Football Act. A brave public health measure, exorcising the country's sectarian ghosts, or an instrument which has empowered the police to treat fans in heavy-handed ways? A way of addressing Scottish cultures of toxic masculinity, or a threat to basic rights and freedom of speech?

To tuck away the show for later consumption, you can download it from Spreaker, or from iTunes.  Alternatively, you can listen to our discussion with Pat right away, right here. We'll be back, as usual, on Sunday afternoon.

Just how many ECHR cases did Britain lose last year?

In brief supplement to yesterday's post about the Tories' rekindled enthusiasm for denouncing the European Court of Human Rights, I thought it might be convenient, if you are fending off Euroskeptic tabloid hacks in your own life, to arm you with a little data. 

Take last year. 2012.  During this period, how often do you think the dastardly, meddlesome, hyperactive European Court decided to make judgments in cases lodged against the United Kingdom? How many adverse decisions can Theresa May realistically hope will patter off Britannia's shield per annum, if her preferred outcome of withdrawing from the Court's jurisdiction were to be realised? From what volleys of European judicial folly will Lord Chancellor Grayling protect us?

The vanishingly small, ridiculously wee, answer is 10 judgments. 10 adverse judgments against the United Kingdom all year. In 2012, the Court issued 24 judgments in respect of 35 UK applications.  Of those 24 judgments, 13 found that Britain had not violated any protected human right, while the remaining judgment was decided without resort to the merits of the case.  By contrast, the Court rejected 2,047 applications against the UK as "inadmissible" in 2012.  

This isn't the place to go into the Court's jurisprudence on admissibility. Sufficeth to say, these cases failed, Britain didn't have to defend itself on the merits of the cases, and in most instances the UK Government wouldn't even have cause to have heard about them. The European Court only communicates the detail a small percentage of complaints to respondent governments, just 48 applications in respect of the UK in 2012. We can therefore chalk all inadmissible cases in the UK "victory" column. And 2012 wasn't unrepresentative.  While the number of unsuccessful, inadmissible cases was higher in 2012 than the previous two years, in 2010 and 2011, 23 and 30 applications respectively against the UK were decided by a judgment of the European Court.

So now we know. Last year, amid all the hubblebubble of political controversy in this country, the fiery rhetoric about a Strasbourg which was by turns micromanaging and incompetent, Britain lost a miniscule 0.5% of all cases decided by the Court, and 42% of all judgments handed down.

Just how many fewer cases would Cameron, May and Grayling think appropriately deferential to Britannic civilisation? How many fewer findings of violation wouldn't represent a grotesque affront to democracy and war on the sovereignty of the Westminster? Perhaps the double figures offend. Nine judgments? Five? One? None?

In fairness to May's argument, her beef isn't just with the year-on-year rate of judgments against the UK which the Court pronounces. She's griping primarily about the duty to comply with the tribunal's past judgments, particularly about the incompatibility of extraditing folk to countries where they are likely to be tortured with fundamental rights. It's a grumble of someone observing their obligations in international law unwillingly. In fairness too, if there's no movement from the UK government on prisoner voting rights, we might expect these figures to increase, perhaps substantially, over the next year or two. In general, however, these bare numbers speak to the practical inaccessibility of the Court to most applicants. Their petitions may be received and examined by Court staff, but only a tiny number are ever likely to catch the judicial eye, and be subject to a recognisably adversarial, judicial procedure. 

And yet, all that despite, the Conservative victim fantasists continue to bark, bay, blubber and groan, unabashed.

Theresa May's human rights trolling...

As some of you may know, I'm completing my doctorate on the European Court of Human Rights. I'm particularly interested in its unsuccessful cases, how the Court's work has evolved in practice the last two decades, and the arguments used by the diplomats, politicians and NGOs who have contemplated institutional reform since the 1980s. 

It's undeniably a tribunal whose scope and character has dramatically altered since it sprung into being in 1959. In 1959, the Council of Europe had thirteen members. During the 1990s, the number of states ratifying the Convention increased exponentially, vaulting from 23 states in 1990 to 41 by the year 2000. Today, 47 states have bound themselves over to protect the fundamental rights set forth in the Convention, Montenegro the most recent, in 2006.  

The Convention's expansion across Europe has precipitated a startling increase in the number of decisions which the Court is called upon to make. Earlier last week, I pinned down this rather startling statistic. Of all of the decisions made by the Court since 1985, 95% were adopted between 1998 and 2012. 20% of all of the Court's judgments and decisions between 1985 and 2012 were adopted last year.  Almost all applications are unsuccessful, rejected in a terse, unreasoned decision-letter. Judicial involvement in this "sifting" process is minimised.

Examining the bureaucratic way in which the institution actually functions has been challenging experience, intellectually and politically. I've never been quite so committed to the concept of human rights as many of my legal compatriots. My skepticism breaks down along a few lines, philosophical, political, legal. Philosophically, I don't hold with natural rights. I don't think they're rationally-derivable through some Kantian moral alchemy. Attempts to prove that contemporary human rights claims have their intellectual history in antiquity or later are generally anachronistic, implausible and self-serving. I'm not at all convinced that morality and ethics are best framed in terms of universally-framed rights and duties at all.  To treat human rights claims as the Good, the Just and the Beautiful, and to gloss over the extent to which framing politics in terms of human rights, risks neglecting the extent to which human rights smuggle with them a good deal of potentially troubling intellectual freight. 

Politically, many folk take it as axiomatic that human rights inevitably and unerringly serve useful ends, and the beneficiaries of these political arguments are the poor, the marginalised, the oppressed and dispossessed. I'm not so sure. For one thing, I'm uncomfortable with the idea of monetising the suffering of the world to make plum, well-paid, often untaxed jobs in national and international bureaucracies for middle class employees. The evidence from Europe shows you that many of those whose cases are now prospering in Strasbourg have the benefit of legal advice, while those without tend to be unsuccessful. Like it or not, resort to forms of legality tend to be indirectly discriminatory against those without the resources to access professional legal knowledge. Looking back at past political struggles, it is not exactly obvious that we ought to expect lawyers and judges, intellectually comfortable to state power, to be supportive of the more left-inclined radical end of the political spectrum. To put it mildly.

In the Scottish context, we can see evidence that large corporate interests, such as insurers and tobacco-hawkers have been able to use the European Convention's protection of their property rights to waylay legislation in the courts.  Both litigious adventures were unsuccessful, but it must at least look a little troubling that the instrument of human rights not only empowers individual wealthy litigants, but empowers conglomerations to reargue their parliamentary defeats before judges, and to employ human rights law to seek to evade reasonable regulations.  In general, I'm more skeptical than many about the utility of law and litigation to drive meaningful social change.

I'm also uncomfortable with the idea of "human rights education", as if the political agenda of seeing contemporary social problems in terms of rights was self-evident. Not a particular philosophical frame, or a rebuttable normative proposition, contending in the ruck of ideas for purchase, but knowledge which a benevolent caste of lawyer-priests cascade down to the credulous, in lectures and jurisprudence. None of which is to say that human rights law and policy hasn't made substantial contributions in some areas of our public life and politics, but it combines to a more agnostic stance than many of my political fellow travellers about the self-evident value of framing problems in terms of human rights and the judicial and bureaucratic institutions these concepts support. 

Bearing all this in mind, this morning's Daily Mail front page makes for discombobulating reading. Our Home Secretary, Theresa May, has gone human rights trolling, arguing that the Tory manifesto going into the next general election should include an explicit commitment to pulling out of the European Court's jurisdiction.  As the saying classically has it, the enemy of my enemy is my friend, and I'm certainly no political chum to the Home Secretary. More left-leaning folk, hearing the Conservative Party's John Bullroarers will feel an instant protectiveness towards the institution which they denigrate. I share that feeling, and have launched my share of jeremiads against the Tory and tabloid outright lies, distortions and victim-fantasies about the European Court. 

In defending it against the predations of Grayling and May, however, I would invite folk on the political left to pause, and reflect a wee bit more about what sort of faith we should really invest in an institution which tells 97% of its applicants to buzz off, expressing as much feeling concern for their complaints as the most heartless Atos disability assessor.  An institution which is primarily accessible to rich applicants, and in dealing with its overtaxed docket, has increasingly resorted to reforms whose effective purpose is to make it harder for the poor and the legally unrepresented to have their cases taken up in Strasbourg. Back in January, I had a piece in the Scotsman on precisely this point, and the contemptible underside of Grayling and Cameron's recent rhetoric on Court reform.

The European Court has its undoubted achievements and contributions to British public life and law. We should not, however, allow the overheated rhetoric of our opponents to occlude the fact that for most applicants, Strasbourg is not a beacon of light for the suffering people of Europe, but is a guttering candle, overwhelmed by its case-load, buffeted by politics, which can do little to alleviate the plights of most folk which petition its attention. A frail little light always at risk of extinction. For all of my scepticism about human rights, my philosophical agnosticism, I can't see that May's Eurosceptic magic fantasy solution helps anyone.

The proverb has the right of it. It's better to light a candle, than curse the darkness.

"Crack Womble squad drafted in to protect Olympics..."

Damn this deluge.  A drear summer has many victims.  The saddest, for me, was the interruptions to the delivery of my copies of the Kinlochbervie Chronicle which this wretched rain has imposed. Happily, today's blue sky has permitted one of Ecclefechan Mackay's carrier pigeons to reach Glasgow, dry. With him, he brought the following startling report on the state of Olympic security in London.  Say what you like about Theresa May, at least she's finally got this mess well in hand.

"Crack Womble squad drafted in to protect Olympics"

by Ecclefechan Mackay, Chief Political Correspondent

Kinlochbervie Chronicle 17th July 2012

The Home Secretary has moved to reassert her beleaguered authority today, by drafting in a crack squad to reinforce the depleted Olympics security forces. The Wombles, a London-based security cooperative, will step in to provide five hundred "fully-armed, combat-trained, burrow-dwelling" guards to make up the shortfall in army, police and G4S security forces keeping order in the capital over the coming weeks. 

Experienced providers of "conflict-based compliance solutions", the Wombles' past employers include the Toyland police authorities and the British East India Company. Charged with maintaining order during the tumultuous fraud trial of Noddy, Toyland's deposed former prime minister, the Wombles earned a reputation for the discipline and efficiency of their cosh work. When Noddy was convicted and executed for his crimes in 2011, just eighteen Toylanders were killed and over fifty injured in the subsequent riots.  

In a statement to the House of Commons, Home Secretary Theresa May told MPs that the company's chief executive, Great Uncle Bulgaria, had given her assurances that the firm would deliver Olympics security "on time, on budget, and armed to the teeth".  May continued, "The Wombles do wonderful work, simultaneously improving the urban environment and crushing public disorder. They are civic minded yet severe.  I am confident that the Olympics will be safe in the iron grip of their fuzzy, wuzzy paws".  A spokesman for David Cameron added, "the Prime Minister has admired the company's ethos for some time. This sort of socially-responsible enterprise is the big society in action."

Welcoming May's announcement, green campaigners hailed the Wombles' "sustainable, ecologically sensitive" approach to delivering state-sponsored oppression. The company's "make do and mend" philosophy turns used condoms, hypodermic needles and polystyrene kebab boxes harvested from urban brownfield sites into rubber bullets, stun grenades and watercannons. Dr Mike Batt, a researcher at the Polytoyn-B Research Institute, told the Chronicle "the company really make good use of the things that they find, things that the everyday folks leave behind." Commenting, the security firm's chief engineer expressed  confidence that the Wombles' working methods and equipment make them a "good fit" for the Olympic job. "Make good use of bad rubbish, that's our motto", Tobermory said.

Ministry of Defence sources have confirmed that "the majority" of military hardware lost over the last fifty years have found their way into the Wombles' possession. Stored in the unit's base of operations in an undisclosed location somewhere in or around Wimbledon Common, their armoury is understood to include at least two Eurofighter Typhoon warplanes and an original 1916 British Mk I tank.  "It turns out that the Wombles are better equipped than most of our infantry regiments these days", Batt continued.

However, the deployment additional Womble forces has not been universally welcomed. It is understood that Bick Nuckles, operator a lucrative range of protection rackets in South London, was not consulted by the Minister before the new appointment was made.  Sources close to Nuckles suggest that his senior staff feel "humiliated and undermined" by May's move.

An independent security analyst confirmed "This should really put their G4S at a peep".