Friday, December 16, 2016

Yes, "The Vow" could have been delivered - but the UK government chose not to do it

I've been meaning to make an additional point about the UK government's outrageous legal arguments relating to the Sewel Convention. I noticed on Twitter a few days ago that some independence supporters seemed to be getting two different concepts muddled up, and as a result were grotesquely (albeit unwittingly) giving the Tories something of a free pass. Basically the confusion relates to the words 'unenforceable' and 'repealable'. There is a strong argument (not unchallengeable, but strong) that it would be next-to-impossible to enshrine the Sewel Convention into law in a way that is unrepealable, simply because of the principle of absolute parliamentary sovereignty. Any law can in theory be repealed by simple majority vote. But the crucial point is that for as long as any such law is on the statute book, it ought to be perfectly enforceable.

To give an example : the Canada Act 1982 terminated Westminster's power to pass laws for Canada. Even if you argue that the principle of parliamentary sovereignty theoretically means that decision can be unilaterally reversed (a point that might be accepted by the UK courts but certainly not by the Canadian ones), there would actually have to be an "Act to Repeal the Canada Act" before Westminster could return to regulating the drains in Toronto, or whatever. So here's the problem - the Scotland Act 2016 didn't even get us that far in respect of Sewel. It used self-sabotaging language to render itself unenforceable, even while it's on the statute book. That was a deliberate choice of the UK government - there was nothing inevitable about it, and they have quite openly boasted in the Supreme Court about how the law was framed to ensure that nothing whatever changed (in particular by the insertion of the words "it is recognised" and "normally").

It's a distinction we must be absolutely clear about. That the Sewel Convention is not unrepealable is arguably part-and-parcel of the UK's most fundamental constitutional principle. But that the Sewel Convention is unenforceable right now was a political choice made by the London government - and that choice was made in brazen contravention of the "Vow" that secured the No vote in September 2014. They mustn't be allowed to get away with the fiction that an unenforceable declaration of commitment to Sewel was the best they could possibly have done within the confines of the constitution, because that simply isn't true.

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Even by his own exalted standards, Mike "can't be arsed" Smithson of Stormfront Lite fame has been making some dubious comments of late, so I just thought I'd take a moment to deal with a couple of his daftest points.  Firstly, he ludicrously claimed last week that the polls on Brexit were not actually wrong, and that anyone who says otherwise is talking "rubbish".  To support this notion, he pointed out that 59% of polls in the last month of the campaign showed "non-Remain leads" (meaning either a tie or a Leave lead).

There's a hole in that logic that a poorly-educated hamster could see through.  If public opinion changes during an election campaign, as it clearly did in the run-up to polling day in June, it will very often be possible to artificially select a time-frame that makes the polls look much more accurate than they actually were.  For example : everyone knows that the polls (with a single honourable exception) got the 1970 general election hopelessly wrong.  They pointed to a Labour overall majority, and the real outcome was a Conservative overall majority.  But between 1967 and 1969, the Tories had actually been way in the lead in the polls, before Labour seemingly turned things around.  Mike Smithson would doubtless argue that, contrary to the universally-held perception, the 1970 polls were not wrong, because over a three-year period they showed the Tories ahead on average.  That would technically be accurate, and is no more or less silly than what he's said about the Brexit polls.

To credibly pray in aid a poll that gets the result broadly "right" a month before polling day, there must at least be an absence of evidence that public opinion changed significantly in the intervening weeks.  Unfortunately for Smithson, the evidence that there was a late swing to Remain as June progressed is overwhelming.  In early June, YouGov "correctly" gave Leave a 4% lead, but the eve-of-referendum poll from the same firm put Remain 2% ahead, and the on-the-day poll saw the Remain lead extend to 4%.  Other firms showed a similar trend.  The likelihood is that all of those polls were inaccurate, and that when Leave appeared to be slightly ahead, they were actually ahead by a significant margin.

It seems Smithson would like to think that the high level of advance postal voting is an adequate excuse for the inaccuracy of the later polls - but it isn't.  If people had already voted by post, the polling firms asked them how they had actually voted, rather than how they planned to vote.

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Elsewhere, Smithson rather desperately used aggregate numbers from a tiny handful of by-election results to demand that the BBC should revert to treating his own party (the Lib Dems) as more important than UKIP.  Now, it may well be that the BBC have been guilty of giving UKIP disproportionate coverage over the years and thus unleashing the Brexit monster, but what's done is done - they can't now ignore the fact that UKIP received almost one-and-a-half million more votes than the Lib Dems in the general election, and have remained ahead of the Lib Dems in most opinion polls over recent months.  Even since Richmond Park, there has been a poll giving UKIP a slight lead over the Lib Dems.

I would hope that somewhere, deep down, Smithson has just enough self-awareness to be embarrassed about his wildly unrealistic demands on behalf of his own party - especially bearing in mind his offensive and downright Orwellian claim a few years back that the SNP were guilty of "censorship" for simply trying to gain fair access to the televised leaders' debates.

Lashings of loveliness in Leven as SNP score key by-election triumph

Leven, Kennoway and Largo by-election result, 15th December 2016 :

SNP 37.0% (-4.0)
Labour 28.4% (-6.9)
Conservatives 18.5% (+11.7)
Liberal Democrats 14.3% (+4.3)
Greens 1.8% (n/a)

Things have come to a pretty pass when Labour are quite genuinely 'celebrating' a defeat in a former heartland, a 7% drop in their own vote share, and a 1.5% net swing from Labour to SNP.  But it's probably fair to say that, in the context of the times, this is a tolerably good result for them.  If extrapolated nationally on a 'just a bit of fun' basis, it would put them only a few points behind the SNP.  The snag is, of course, that there is absolutely no evidence from any opinion poll or from any other recent by-election to suggest that their resilience tonight is anything more than a freakish one-off.  The chances are that there were local or personality factors that worked in their favour in this particular contest.

Should we be at all concerned about the slippage in the SNP vote, given that the party had only a modest national lead in the last local elections in 2012?  A loss of support is certainly more noteworthy in this sort of by-election than it would be in areas of traditional Tory strength - we can't just neatly put it down to a small number of No-voting ex-SNP supporters finding a way of resolving their cognitive dissonance.  However, the most recent national opinion poll (conducted only two or three weeks ago) gave the SNP almost half of the popular vote, and in spite of the question marks that now hang over the polling industry, it's unlikely that polls would completely fail to detect a dramatic shift in public opinion.

The small increase in the Liberal Democrat vote is very much in line with last week's Scottish local by-election, the parliamentary by-election in Sleaford and North Hykeham, and also a couple of Britain-wide opinion polls.  So there does seem to have been a genuine post-Richmond Park bounce for the party.  The problem is that they'll need to follow up that win at some point if they want to maintain their momentum, and respectable third or fourth place finishes aren't really going to be enough.  The afterglow of a single by-election success - no matter how spectacular - is generally pretty short-lived, and if what we're seeing now is as good as it gets for the Lib Dems, they're not really back in the game in any meaningful sense.