A Union hoodwink: the Calman con trick

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by Hazel Lewry

It appears that the Unionist parties in conjunction with the Westminster cabal are using a time tested strategy with regards to the Scotland Bill: an attempt to delay the clamour for independence or more powers for Holyrood by the semblance of granting the wish for the latter.

Westminster’s strategy has been to create the Calman Commission, and purport to deliver on the recommendations within the report, generated for and on behalf of London through the Unionist parties.

The Calman proposals were forced through Holyrood by a London-centric alliance against the preference of the constitutionally elected minority administration with a combination of roughshod tactics including temporary one-off alliances and expert witness ambush.

Many aspects of Calman’s limited recommendations (he wasn’t allowed to look at many areas where Scots and Scotland might benefit) were then diluted by deletions, amendments and addendums.

Some of the disastrous aspects of this [anti] Scotland Bill include amendments such as that proposed by the Scottish Lib Dem peer and former Depute First Minister of Scotland Jim Wallace.  He has inserted an amendment in the Scotland Bill which will see criminal appeals from Scotland’s High Court of Justiciary go to the UK Supreme Court.  There are concerns that this blatant flaunting of the Treaty of Union will lead to a diminution of the powers of Holyrood, and is a threat to the identity and independence of the Scottish legal system.  A legal system specifically guaranteed independence under article 17 of the Treaty.  Should it ever pass into law it raises the question of whether this act of abrogation would nullify the entire Treaty of Union.

Elish Angiolini QC, Scotland’s Lord Advocate, has warned that Scots law will suffer a “loss of identity” because of the UK Supreme Court’s extended powers to rule on Scottish human rights cases.

Giving evidence to the Scottish Parliament’s Scotland Bill Committee, Scotland’s top law officer explained: “Because of the approach of the Supreme Court, there is a real danger that we will not just have harmonisation of our criminal law, procedure and evidence, through that process, but that there will be a complete loss of identity for Scots law unless it is something which is genuinely rarely exercised in the context of something which is of substantial constitutional significance across the United Kingdom, or where it is a very new piece of jurisprudence which is clearly ambiguous.”

In spite of repeated concerns over this amendment it remains embedded in the Scotland Bill provoking ongoing fears that Jim Wallace’s (Baron Wallace of Tankerness) amendment will render Scots criminal law subservient to the UK Supreme Court in all matters.

Part of Wallace’s ammendment includes:

“Remove acts of the Lord Advocate in her capacity as head of criminal prosecutions and investigation of deaths in Scotland that are incompatible with any rights conferred by the European Convention on Human Rights that are given effect to by the Human Rights Act 1998 (“Convention rights”) or Community law from the ambit of section 57(2) of the Scotland Act; and

“Create a statutory right of appeal from the High Court of Justiciary sitting as a criminal appeal court to the Supreme Court in relation to matters where it is alleged that the Lord Advocate has acted incompatibly with any such Convention right or Community law to replace the existing devolution issue procedure that currently applies in such cases.  The jurisdiction of the Supreme Court should be maintained both for reasons of constitutional propriety and, more importantly, to ensure that fundamental rights enshrined in international obligations are secured in a consistent manner for all those who claim their protection in the United Kingdom.”

SNP Justice Secretary Kenny MacAskill told Newsnet Scotland that his view is that Scottish courts should be the ultimate decision-making authority in every aspect of criminal law.  This is reinforced by the Union Treaty itself.

The telling question amid this whole process is why won’t Jim Wallace consider the option of allowing all these powers to be held entirely by Scottish courts instead of solely considering further centralisation?

In addition many of Calman’s recommendations have been removed from the Scotland Bill, either by the Holyrood cabal principally led by the now departed Wendy Alexander or in later stages at Westminster.  Experts have told Newsnet Scotland that some of the new powers being devolved will almost certainly be used, such as Scottish Duty Land Tax (SDLT), landfill tax and the ability to borrow.  However these powers are insignificant compared to presently excluded and far more substantial taxes such as Corporation Tax, national insurance or VAT.   

The powers being devolved may see only limited use at best.  Due to the way the Bill has been crafted there is an inbuilt cost-disincentive to using the proposed income tax powers.  A number of renowned experts such as economists Jim and Margaret Cuthbert and Professors Andrew Hughes-Hallett and Drew Scott of George Mason and Edinburgh universities, among others, argue that these powers are “dangerously flawed”, “unworkable” and “a perfect storm”.

Neutral observers could certainly be forgiven for concluding that the income tax powers have been designed this way by order to give the impression of more powers being transferred.  This strategy would have the effect of partly placating the Scottish electorate’s desire for their parliament to have full tax powers whilst actually taking powers away from Scotland.  The aim, critics will speculate, is to achieve confidence whilst picking Scotland’s pockets of existing devolved powers, the ultimate governmental confidence trick.

The role of Jim Wallace in the Scotland Bill process indicates a trend, according to some commentators, of Liberal Democrat politicians ready to abandon their liberal principles of decentralisation and federalism upon catching a whiff of power.

The ongoing debate over the value of a Lib Dem promise is enhanced by Danny Alexander noting Scotland may retain “some” of any potential proceeds from a possible sale of Scottish water, as proposed in some newly minted Holyrood manifestos.  In addition to the water question another Scotland Bill twist appears as news unfolded that more powers were dropped or at best delayed from the Calman proposals, including air passenger duty, aggregates levy and the assignation of income tax yield from savings and distributions.  This completely contradicts promises and assurances from the Lib Dem leadership.  These deletions pale beside the proposed claw-back of existing powers  held by the Scottish Parliament in areas such as insolvency law, charity law and the regulation of the health professions.

In May last year Liberal Democrat MP Alistair Carmichael, now depute chief whip to the House of Commons said: “Calman’s recommendations will be implemented and many other Scottish issues on which Labour has prevaricated will now be tackled.”

Current Secretary of State for Scotland Michael Moore (Lib Dems) promised that the proposals recommended by the Calman Commission would be “implemented in full.”

Leader of the Lib Dems’ Holyrood group Tavish Scott offered assurances that the proposals of the Calman Commission would be implemented in full insisting: “Absolutely … no doubt”.

At no time did the Lib-Dems mention any removal of devolved powers.

Given that the Scotland Bill radically affects the nation one would expect the Lib Dems to seek a referendum on the new devolution settlement.  No such vote is being planned by the Con-Dem coalition government although they are holding a referendum on a new voting system that no-one apparently wants.

In Scotland’s media much has been written about the problems associated with the powers included within the Bill, but the unwritten story is about the powers that have been dropped or re-reserved.

It becomes increasingly obvious, the Union and Westminster exist to serve the City of London and their financial overlords, not Scotland or her people.

What we need is a referendum, yes, include the Scotland Bill if you will, but put at least independence and Full Fiscal Autonomy there as well, and make it a preference vote – in this alleged democracy it’s time for a democratic option, let the people of Scotland decide.

Or is Westminster afraid?