Community empowerment and retention – some thoughts from St Kilda

Earlier this month, I went to St Kilda, an archipelago west of the Western Isles. It was pretty amazing and words do not do the place justice, so here are some photos.

DùnBayHigh StreetStack

In one of the photographs, you will note a number of ships. For an island far off the west coast of the Scottish mainland, and indeed the west coast of Harris, it was quite a busy place. Tourists, scientists, conservationists and military personnel were all busying themselves on Hirta (the main island of the archipelago) when I arrived. But there is no indigenous population there. The last thirty or so native inhabitants evacuated in 1930. (An earlier mass migration in the 19th century explains why a district of Melbourne has the name of St Kilda.) There is a semi-permanent population on Hirta, in terms of military personnel and National Trust for Scotland staff, but there are no indigenous people left. Their way of life, subsisting on (inter alia) sea birds, not to mention their legendary climbing skills to catch those seabirds, have disappeared.

With that uniqueness and far-flung-ness, I think a strong argument can be made that they were the last [static] indigenous group in the British Isles. If they were still around today, the UK would be under international obligations towards them, in a manner not dissimilar to the Inuit in North America.

Alas, the UK government did not offer any particular support to the islanders to prevent them calling for evacuation, when perhaps they could have offered permanent roles to the menfolk (yes, it probably would have been men, back in the day) in military or meteorological circles to make the indigenous community just a bit more viable, and so the community has gone, never to be recovered. Ochone, ochone, and other nostalgic Scottish musings. (I am aware this paragraph is a gross over-simplification, but I want to keep this blog short.)

A serious point relating to the present day might still be made. Retaining a community is much easier than replacing a community. That is why land reform in the Western Isles is such a topical issue. On my trip to the Western Isles, I visited the community lands of the North Harris Trust. They are involved in a number of projects, such as path development.


They have freed up land for local housing. They are regenerating woodland – in Harris! They are providing employment. All of this would have been difficult, if not impossible, without community ownership.

Community ownership is not a magic bullet. There is no “one size fits all” approach to land management in Scotland. That being the case, it does give something to think think about. Even measures short of outright ownership might be enough to re-energise a community. Which takes me back to St Kilda. Sure, I went there on a cracking day (indeed, the boat would not have left Leverburgh without a promise of clear skies), so my one experience of St Kilda will bear no resemblance whatsoever to a winter on a north Atlantic archipelago, but a combination of the hardships St Kildans faced and a lack of support means that that community has gone forever. That makes me sad. To prevent me being sad in the future, I think it would be wonderful if we could protect and encourage the communities that remain in Scotland’s fragile areas in whatever way we can.

Posted in Land Reform | Tagged , , | 1 Comment

Some thoughts on unsolicited campaign emails

On 1 July, I received an email to my work email address, with this header:

better together

My interest was piqued. I began reading:

Dear colleague,

In less than three months, on the 18th September, Scotland will take a decision with enormous and irreversible effects upon our universities. It is essential that we get this right.

My name is Andrew Miller, and I am a former Principal of the University of Stirling. I am writing to you because I firmly believe that we can achieve more together as part of the UK than we ever could apart. Having looked at the evidence, it’s clear that the best and brightest future for our world-class universities is achieved as part of the wider UK.

The text continued, inviting me to read a report and “warmly” inviting me to join Academics Together. How nice.

On 7 July, I received another email from Rob Murray, beginning “Dear Supporter,” inviting me to become a telephone ambassador for Better Together, with the following header:

blether together

Now, it is always nice to feel wanted, but there were a few issues with these unexpected communiqués. First, I recently joined Academics for Yes. My interest in Academics Together is limited. Secondly, and most importantly, I did not sign-up to receive any campaigning emails. The emails were unsolicited. This could be a [legal] problem.

Before I head off on a legal muse, it is only fair to follow Sir Arthur Conan Doyle’s school of deduction and consider why I received these emails. I have already discounted my own volunteering. One option is I might have been sent them in error. Another is someone else may have signed me up: I have fond (ahem) memories of a friend signing me up for regular fromage email updates from a French cheese purveyor. Très drôle! All of these possibilities seem remote when the Twittersphere is consulted, as per this tweet and the replies to my tweet about the issue.

Is there a legal problem? My work email address is public. You can find it via my blog or my employer’s website very easily. I doubt there is a Data Protection issue in that regard.

What about the Information Commissioner’s Office guidance on spam emails? I refer to that because The Privacy and Electronic Communications (EC Directive) Regulations 2003 are UK-wide, as is the ICO’s role in relation to that legislation. Those rules can, it seems, relate to election materials and (it can be reasonably inferred) referendum materials in the same way as it does to sales-pitches or scams. The authority for this is (ironically?) a precedent involving the SNP. The SNP tried to argue political matters were not covered but a 2006 decision ruled against that line of argument, as explained in further ICO materials (at paragraph 12 of the detailed guidance).

That detailed guidance of the ICO also makes reference to an earlier Better Together campaign, at paragraph 35:

If the organisation purchases email addresses or mobile phone numbers from a list broker with the intention of sending an electronic communication to those listed, it needs to be sure that the individuals have consented to receiving these forms of contact from it. Better Together, a campaign group in the 2014 Scottish independence referendum, signed an undertaking in November 2013 that they would ensure any future electronic marketing was only sent to people who had consented to receiving this type of message.

What next? That is a good question. As things stand, I have not sent “unsubscribe” to the originator of any of the emails, because: 1) I did not subscribe in the first place; and 2) I am intrigued to see what else comes my way. I have not contacted any branch of the information police yet, but I would be keen to hear if anyone out there has any thoughts as to what the next steps could or should be.

Most importantly, if anyone from either campaign is reading this, please think very carefully before firing off unsolicited communications. Sure, you might want to win the referendum, but (in the same way as guerilla stickering is to be discouraged) please keep the campaign within the law.

Posted in Scottish Independence | Tagged , , , | 9 Comments

Lawyers for Yes

Imagine, for a moment, that the campaign for Scottish independence is actually a night in a public house. Picture the scene of a few regulars, who hold court and offer pearls of wisdom to all and sundry on the benefits of Scottish sovereignty. Every so often, others seek to join their group. They are made welcome, but such a newcomer can be in a precarious position. They may try to impress these pub-based sages and over-compensate in the process, or desperately try to catch up on where the conversation has been and (most precariously of all) try to catch-up on the regulars’ “enthusiasm”. I suppose I am such a newcomer, having nailed my Scottish colours to the mast fairly recently, so I will be careful not to try to out-drink those regulars, but I can offer one opening gambit that might impress them. I have a new post over at Academics for Yes, which I quote below. Enjoy.

A new organisation called “Lawyers for Yes” is now active. Its declaration has the support of people from all walks of Scottish legal life: solicitors, advocates, solicitor-advocates, academics and others engaged in the practice of law. I am a signatory, as are 110 others (as at 22 June 2014). The homepage has a number of contributions explaining why some of those signatories believe:

independence will lay down the foundations for a fairer, equal and more democratic society in which the fundamental rights of all citizens are enshrined in a written constitution and protected by a constitutional court as befits a modern democracy.

Those are powerful words, which might be expected when you consider Scots solicitors have on occasion been referred to as “writers.” Other than powerful language, one might wonder what a group of lawyers bring to the debate. Two thoughts are offered here.

The first relates to the initial membership of the group. Unsurprisingly, the first thing lawyers might get in a tizzy about is the definition of “lawyers.” A quick glance will reveal that not all signatories are qualified to practise law in Scotland at present. That may be so, but the diversity of contributors can equally be characterised as something to celebrate. From trainee solicitor to eminent Queen’s Counsel, these people have considered the topic and think that independence is a positive step. Lawyers for Yes cannot be criticised for having a view centred on Parliament House or dominated by any particular age and stage of a legal career path. It reflects a broad spectrum of legal society.

A second thought relates to the perspective lawyers can bring to bear. At one level, the formation of Lawyers for Yes is no more or less exciting than the launch of a group of crofters or indeed academics for Yes. At another, it is much more than that, when you consider the nature of some of the purported obstacles to Scottish independence, such as EU membership for an independent Scotland. People might vote No for a whole variety of reasons, but if someone does not vote Yes on the basis of an apparent legal truth the Yes campaign will suffer. This is why Lawyers for Yes has a role, in that it shows a number of legal minds think such legal problems are either: a) not problems at all; or b) perfectly surmountable in the event of a Yes vote.

Rather than consider the ins and outs of the legalities of an issue like EU law here, I am going to become a little theoretical. What is law? One definition might be a system of rules that governs a society at any given time. And what does law do? Law both shapes and reflects the society it relates to. The rules that exist can and do shape behaviour, but when circumstances change and the law no longer reflects that society it can and must change. It is fair to say that a Yes vote would be a huge declaration of intent by Scottish society and any mature legal order ought to be able to react to that. The simple fact that lawyers are comfortable with the idea of independence despite EU concerns or other constitutional niceties is an effective counter-balance to anyone who speaks of apparently certain consequences to the independence vote.

What do Lawyers for Yes not do? There are no substantive proposals about a new Scottish constitutional order, beyond noting that the existing legal system and legal institutions mean Scotland is perfectly capable of adapting to independence. In that regard, maybe it is not a radical intervention, but it certainly adds something to the independence debate.


Posted in Scottish Independence | Tagged , , | 1 Comment

Why I am voting Yes in the Scottish independence referendum

Congratulations, you have read past the headline. I hope you will stay with me for the rest of this post, but I appreciate many people – of either Yes Scotland or Better Together persuasion – have already read quite enough. Many in the former camp will have their own reasons for voting and be content there is one more Yes. Some in the latter camp may simply query “Who?” before deciding I am not worth the attention. Fine. No offence will be taken. I suppose it is the undecided or swithering voter that I might be reaching out to, which begs a lot of questions, such as: 1) why am I forgetting the Earl of Dalhousie’s important insight that – as a Scot – he preferred to do things cannily rather than boldly; 2) why am setting out my views about the very personal act of voting; and 3) why am I advocating Scottish independence when I have never been a member of the SNP, or indeed any other political party?

More on Dalhousie later, but first a disclaimer: there is no way I will cover all the points which I (or you) might want to be covered in this blog. To name but two, I do not know much about defence policy or economic forecasting, beyond knowing that other countries that might be a comparator for iScotland exist and sometimes do alright. That might be enough for you. If not, others make a case about defence or economics elsewhere, so (without comment) I direct you accordingly.

Believe it or not, I hoped to keep this post short. You may find that laughable by the time you wade to the end, but I tried to suppress my inner preference for grandiloquence and unnecessary verbosity. That requires a somewhat tactical approach, so please do not castigate me too much when I miss out your own deal-breaking/game-changing independence issue.

Enough disclaiming, what of my rhetorical questions?

1) Why am I being bold rather than canny?

If you do not know much about James Ramsay, 10th Earl of Dalhousie, do not fret: neither do I. Most of what I know comes from a book called The Scottish Empire, by the historian Michael Fry. Dalhousie was part of a crop of Scots who did rather well out of the British Empire, in his case in India, which goes right to the heart of why this sovereign movement might be vexing to some. Scots can and do achieve things in the UK, why would anyone want out?

More on that later. Meantime, I tangentially acknowledge Fry has had something of a journey from a Conservative candidate in Maryhill to just such a person wanting out, contributing to a website for “centre-right, pro-independence supporters.” Fry’s change of heart aside, if I thought Yes was going to ease to victory I would have adopted Dalhousie’s canny course, by quietly crossing the requisite box on 18 September 2014 and not crowing about it, but this blog represents me putting my head above the parapet.

2) Why am I setting out my views?

I am acutely aware that my views are no more important than the views of anyone else who is, come September: aged sixteen or over; not incarcerated; and on the electoral roll for a Holyrood election. That said, I might be able to add a few thoughts to the mix. In fact, I have been in the odd conversation where a No voter has had their relatively solid unionist credentials shaken on hearing I am voting Yes, because I come across as a cerebral type. I appreciate that sounds immodest, so I suppose I had better come up with some passable reasons for my Yes vote.

3) Why am I advocating Scottish independence?

My main reason for voting Yes is that I kinda fancy it.

That was a sure-fire way of torpedoing any false modesty, eh? After 600 words of an intro which raised at least pretensions of intellect, my main reason for voting Yes to Scottish independence is that I like the idea of an independent Scotland. I am not the sort of person who has the words of the Declaration of Arbroath tattooed on my body or on a T-shirt, but the simple (and – yes – simplistic) attraction of Scotland being run by Scots is something I can identify with. Or maybe it is sentimentality. Or maybe it is the hope that actually having an independent Scotland would aid in explanations when I am overseas and trying to communicate properly with a non-native English speaker who knows the words for “English” and “Irish” but not “Scottish.”

There are many nuances to this, I know. I am already anticipating the deconstruction of the paragraph above or simply being informed that these things do not matter in the grand scheme of things. (Here are two heckles for free: sentimentality does not feed you; and being lucky enough to be from a country that affords you the means and wherewithal to do things like travel is not something to be scoffed at.) Some say the independence vote is about the heart and the head. I hope fronting up about my own gut feeling might at least set the groundwork for any further discussions on the matter.

This also allows me the opportunity to frame the debate in terms of the two things which would make me vote No, and in turn why I think I will vote Yes notwithstanding. Those things are: A) a curtailment or removal of the human rights and fundamental freedoms I enjoy in the UK (as a signatory to the European Convention on Human Rights); and B) an existential threat to the National Health Service in Scotland. How is that for honesty, any would be hecklers? I am even displaying my weak points. If you want to convince me to vote No, press accordingly.

A) Human rights and political participation

The movement for Scottish independence is a strange beast at times. The referendum has been described as “wholly accidental”. Scots generally have the same rights, privileges and entitlements as the good people of Wales, Northern Ireland and England. As for me, I have little to complain about. I have never been tortured: the only state sanctioned and at times uncomfortable intervention to my anatomy to date has been very much in my own best interests (more on that below). I hope to continue to enjoy those fundamental freedoms and I am confident the state is not going to suppress this blog, given the standing freedom of expression has in the UK and under Strasbourg (ECHR) jurisprudence.

Be that as it may, I am fairly confident we will not be worse off in an independent Scotland. Drawing on an historical example, Scotland’s commitment to access to justice can be traced back to 1424. Returning to the present, human rights law is embedded in the existing Scottish constitutional set-up even more than it is in England, with the Scotland Act 1998 building on the Human Rights Act 1998 and case law like Salvesen v Riddellshowing that the Court of Session is perfectly happy to dress-down the devolved legislature as necessary. Granted, there will be work to do to ensure any new constitutional order works, but nothing in the Scottish Government’s White Paper, the existing work of the Scottish Human Rights Commission or indeed anything else makes me panic about this issue. It might even be hoped that any new Scottish government could do better on human rights issues like the “bedroom tax”, although that is conjecture. Essentially, I cannot visualise a situation where a new Scottish Government would take us out of the remit of the ECHR (a greater concern might be that the UK government would take us out, but mercifully such calls have quietened of late).

Having reassured myself as best I can about human rights, I will briefly return to the idea of Scots being able to participate fully in UK politics. It is not so long ago that some were speaking about a Scottish Raj in London. This was not a reference to the Earl of Dalhousie. Whilst it is inherently dangerous to present mutable factors as key to huge constitutional change, those days of a strong Scottish Labour presence in Westminster form a marked contrast to the current situation of Conservative/Liberal Democrat coalition. In fact, it has been suggested in some circles that there will never be another Scot (or at least someone representing a Scottish constituency) in charge of the UK. This would be an operation of the devolution settlement and (perhaps more controversially, and this is my speculation) an issue about the acceptance of such a person across the UK. (As to my second point, I am thinking about some of the treatment of Gordon Brown in the UK press at the run-up to the previous general election.) This is a horribly unfair and hypothetical argument for me to run, as I can only be proved correct by a No vote followed by years of non-Scottish representation as Prime Minister, but I think it does merit some consideration. Is it feasible there would be a de facto exclusion of Scots from that top office in a post-No United Kingdom? If so, what kind of a union is that?

B) The NHS

Less than a year ago, my concerns suddenly and rather swiftly changed from the Scottish constitution to my own constitution. The question, “How should I vote?” was subtly amended to, “Will I be able to vote?” My elaborate means of potentially disenfranchising myself was to be diagnosed with metastatic testicular cancer, placing me pretty much entirely in the hands of the NHS. I had always been a big fan of the NHS, but this experience made me transmogrify into the ultimate NHS fanboy. As such, if someone was able to convince me the NHS was actually threatened by Scottish independence, I would vote No, irrespective of the human rights analysis above. Human rights tend to concern the living more than the dead.

I offer three tentative reasons as to why I think the NHS in Scotland will manage just fine, in descending order of simplicity.

The first is the gloriously simple one that not spending money on Trident will free up money for nurses, equipment, medication and the like. (Yes, I know not ALL the money that might be saved by a non-participation in Trident or other willy-waving post-Empire military projects will be diverted to healthcare, but even just a bit of that money could make a difference.)

The second is that the reforms to the NHS in England, which seem to indicate a creep towards privatisation, might impact on Scotland in terms of Barnett consequentials or indeed in terms of pressure to follow suit. I cannot add much insight to this point, but I did dabble as a projects lawyer north and south of the border in my time as a practising solicitor. From that experience, I appreciate the structure of the NHS in England (complete with confusing beasts like foundation trusts) is very different to Scotland. As such, to replicate English reforms up here would be a huge feat, so I would not want to overstate the possibility of mirror reforms. I also appreciate the NHS is already within the devolved competence of Holyrood. But the pressure to reform and/or the impact of any reduction in the Scottish block grant does seem to be real. Hence I am satisfied Scotland would, at the very least, be able to manage its NHS after a Yes vote.

The third is that the idea of sharing ideas and expertise across the border is fine in principle, but the one experience I have had to test this principle showed that it could be kiboshed within the current constitutional set-up. In the midst of my fifteen weeks of chemotherapy, I learnt there was a study at Leeds into testicular cancer. Altruism can be curtailed by a hospital treatment programme, but this seemed something I could help with and I volunteered to get involved. My involvement would have been the provision of blood samples. With the amount of blood being leeched out of me at the time, I figured this was not a big deal. I told my oncologist about the study. A few days later that oncologist told me my Scottish-based blood was probably not suitable for this project, apparently owing to concerns about cross-border issues relating to human tissue legislation. I did not press the point at the time, much as I may have enjoyed the challenge of mulling over the legalities, deciding instead to concentrate on getting better. (Nota bene: that is as close a reference to Scottish blood, pure or otherwise, as you will find in this post.)

Any social scientist worth her salt will tell you one anecdote does not make data, but this is the only anecdote I have and I find it pretty compelling.

In terms of other considerations, I cannot offer much expertise on how to run a health service, so again I am left to refer you to another source. I also have some reassurance on the European healthcare arrangements that exist at present and would presumably continue – in some way – if and when Scotland and RUK are both independent members of the EU. I know Scottish membership of the EU is another issue entirely, as indeed is RUK membership, so now seems a good time to consider some of the other perceived challenges to independence.

Other issues?

Law is not always easy. I knew this before I started a law degree, I knew it when I was in practice and I still know it now that I work in a university law school. But I also know that [international] law can sometimes be boiled down to the analysis that law is what happens. Ex post facto analysis is applied to try to justify the legalities of an international relations incident, when the effects of that incident are patently obvious on the ground. And so I turn to the nice question of what will happen should Scotland vote for independence within the EU.

Would Scotland be a member state? Would it be automatic? For what it is worth, my own view is that a mixture or realpolitik and creative analysis of the treaties could see an independent Scotland eased into the EU in a relatively pain-free manner. It might not be entirely painless, I grant you, but I cannot see how the removal of the EU citizenship rights of millions of citizens on the basis that the eligible voters of that group made a democratic choice could be justified within the EU scheme. The non-exact analogy of the admission of the former East Germany to the European project with relatively little fuss also bears consideration, as might the situation when Saint Martin hived away from Guadeloupe. People with better EU law credentials than me, from Scotland and Germany, have considered the issues and I commend their analyses to you.

Many questions remain, such as exactly what would happen to the existing EU opt-outs held by the UK, or how pension deficits that were previously internalised to a member state but are now cross-border could be dealt with. It might be that as part of any “entry” “negotiations” Scotland would be pressed on existing opt-outs, but other small countries in the EU have separate opt outs (think of Denmark and the private international law rules that apply in relation to it), so this might be overstated. As for pensions, the issue has to be acknowledged, but an argument that might be characterised as, “because the UK has allowed a pension deficit to be run up, you can never leave our heretofore mismanaged stewardship!” seems a little spurious to me. Spurious or not, it remains a difficult issue, and one which ICAS do not present solutions for in a recent post, so I will not try to either.

All things considered, I remain relatively – perhaps even surprisingly – relaxed on the EU point, but I do recognise it is absolutely crucial to the debate. For example, any argument about Scots being locked out of RUK embassies looks shaky when you consider that any EU citizen can pitch-up at any EU embassy for assistance, and I have already alluded to the benefits of the EHIC scheme. The issue also cuts both ways, in terms of higher education funding and access to free university tuition, but having acknowledged the point out of a spirit of fairness I am going to shamelessly side-step that and other higher education issues because of my gainful employment.

The importance of the EU argument means it will not go away before the vote. It is both unfortunate and unsurprising that it cannot possibly be answered one way or the other before the vote, so I will devote no more time to the issue here.

Um, so why are you actually voting yes?

Good question, and I suppose I should now get back on track. So far, I have explained that I quite like the idea of Scottish independence, why some things related to independence do not unnerve me as much as they may unnerve other people, and highlighted a wild claim that a Scot may never be UK prime minister again. Why else?

Many of my other reasons relate to things that we might be able to fix within the British state, but the problem is I am not sure we will.

Lords reform is a particular bugbear of mine. Clerics from a church that is the established church of another country have a role in our legislature. At any level, that is palpably absurd. I mean no offence to Anglicanism, and I have no doubt the current batch of Lords Spiritual have more to offer the Commons than previous offerings, but why do they have any role whatsoever in my legislative process? Why do we still have hereditary peers in the 21st century? Why do life peers get parachuted in on a whim? Admittedly there has been limited progress on Lords reform this year, with the House of Lords Reform Act 2014, but there is still a fair amount of unfinished business to resolve. You then have other issues like nuclear weapons/Trident, which I am not going to rehearse here. Westminster has a voting system that badly needs reform, but the nearest thing to meaningful reform was ruined for a generation in a curious referendum campaign and subsequent rejection of the AV system.

I could go on. Instead I will stop to recognise these things might be classified as the non-nationalist case for independence. I understand that. The argument that we do not get the governments we vote for is thoroughly dependent on what you mean by “we”. Scottish independence might then be characterised as an escape pod from the excesses of Westminster, leaving the residents of Tyneside and Merseyside to fight the good fight without us. But I also do not buy the solidarity shtick. I had plenty in common with the two Irish housemates I lived with a few years ago, much like a Scots Gael in Islay might have many shared interests with an Irish Gael in Sligo. Those commonalities do not mean we should stay shackled to the Westminster government and what Vince Cable characterised as the London suction machine. (The London thing could maybe be solved by it becoming a city state, but the last time I checked I did not have a vote about that.) It frustrates me when Scots do not have a meaningful voice when it comes to expensive projects like HS2 that in all likelihood will never reach Scotland and might actually harm the region in which I reside. As for the idea new barricades should not be introduced in an interdependent world, in principle I am all for a lack of borders, but I am also increasingly in favour of an effective border between me and Westminster.

Would an independent Scotland do any better in terms of decision making? All I can reply to that is a resounding “maybe”. I am well aware that a recurring problem with government of the people, by the people and for the people is the people. Standing that general scepticism of politicians and indeed everyone else, I generally like what the Scottish Parliament has done and I would like it to be able to do more. I like the fact I can be recognised and shouted over for a chat by an MSP when I am attending a Wildhearts concert in Glasgow, or can talk nonsense and even occasionally politics to MSPs on Twitter. I cannot imagine this happening with George Osborne. (No offence, George.)

Being closer to a seat of government does not give me an automatic expectation that I will always make a difference. I whinged about the SNP’s court closure plans and they still happened. Other aspects of justice policy have been trenchantly criticised by members of the legal profession, which criticism – at least in relation to corroboration – has led to a climb-down of sorts. All this means that I would need to remain a critical voice and participant in any new constitutional set-up. I am happy with that idea.

I have just highlighted my desire for more powers for the Scottish Parliament. Would the Better Together line of more powers within the union be enough? Leaving to one side the nice issue of what exactly the three main parties – assuming of course the Liberal Democrats can still be counted as a main party – might bestow on Scotland after a No vote, it seems there will remain a reserved model of devolution with certain key issues staying at Westminster. One trouble I have with any such model is that there is always a hint of an a priori judgement of what should be retained: i.e. we will keep these important things, do not worry about them. I also have more faith in a system where a parliament control all the levers, because that prevents incessant tinkering with the levers elected representatives are lucky enough to have control of when really it is one of the reserved levers that might need attention (as I mentioned in a previous blog). As such, independence seems entirely logical to me.

Ah, but it is not really independence that is on offer, is it? The drive to keep the pound and to keep in with the Bank of England (the UK central bank) keeps you shackled to the very thing you are trying to escape, does it not? I get that argument, and it is undeniably challenging, albeit that it can be entertaining to hear opponents of independence saying, “But you won’t be independent enough!” The standard response to that is, “best” should not be an enemy of “better”, but the argument about leaving too much power with (or instantly ceding power to) English financial institutions does need addressed. In fact, my own inclination is increasingly towards a Scottish currency, perhaps pinned to the pound to start with, and in any event I am relatively comfortable with any sensible post-Yes starting position on the basis that we will not necessarily be locked into it in perpetuity and (most importantly) we will have the potential to diminish the distinctly south east of England flavour of some of the policies that impact on Scotland. I fear I am straying away from my own comfort zone, so I will say no more, other than to acknowledge that I am well aware this is a complicated issue that others will regards as a bigger deal than I do. It might be that absolutely no currency option in Scotland could possibly work. (The last link is offered ironically.)

Would independence leave Scotland somehow diminished in terms of its clout? As with many things in the debate, I do not think it is that simple. For example, we might actually have more influence in Europe if we had more than 6 MEPs, plus the likely shared interests of Scotland and RUK in relation to (say) North Sea fisheries would rather crudely increase the number of international advocates on an issue from one to two. As regards the likely loss of Scotland’s ability to participate even slightly in the UN Security Council, one response is to point out that the institution needs reformed anyway, and another response is to look at the role other countries of a similar size to Scotland can play without necessarily being part of a big player (assuming of course that Britain still is a big player). Again, I tread into an area that is not easy to summarise, but again I wanted to put down a marker to highlight that I have at least considered the issue. As I mentioned at the start, there will be plenty of other things I have not analysed. With that concession, I am going to try my best to wrap this up into a conclusion of sorts.


Do you still remember the Earl of Dalhousie? As noted, he did alright out of the union. Neither did many others like him, but I think it is fair to say times have changed. I have quite deliberately not looked at the historical case for maintaining or breaking the union – please look elsewhere for wild posturing about the effect of the union on the Highland Clearances or the involvement of Scottish troops in overseas military campaigns – so it might be wondered whether Dalhousie would act cannily or boldly in the contemporary Scotland.

I do not doubt there is still scope for Scots to do well in the existing constitutional arrangement. I can understand why some people are voting No, including (gasp) some of my friends and family who are doing so without falling into a convenient stereotype of being a CBI business type or a trough-ing Lord happily claiming expenses while blinded to the existence of food-banks. My understanding their reasons does not mean I identify with them. What I really identify with is aspiration. I am confident the world we live in today is one in which an independent Scotland will thrive and I aspire to be part of that.

That sounds a bit preachy, so allow me to clarify or mitigate those words. One Yes campaign slogan notes that Scotland can, should and must be independent. I agree with two thirds of that.

In terms of the “can”, countries like New Zealand, Denmark and Norway function not too badly, and I think Scotland could too. Heck, I have not made a big thing about the hundred plus distilleries that are lined up to pump whisky money into a Scottish rather than British exchequer, or the oil and gas money that Scotland stands to accrue even if it is a dwindling resource, or the renewables potential. All of that makes for a pretty good starting hand. I have also not analysed the small matter of Scotland’s land assets and empowerment of its communities, but full control of legislative and fiscal levers is something that could aid joined-up thinking on the land question and with it full utilisation of the natural capital of the country.

In terms of the “should”, I have detailed some of my thoughts above. You might agree, you might not. That is democracy and we should rejoice in that.

In terms of the “must”, this is where I back down on the rhetoric. If there is a No vote, I am optimistic the sky will not fall in and I am hopeful I will still enjoy the fundamental freedoms that I have enjoyed to date. Perhaps the Scottish Parliament will get a few more powers, but most importantly I will try my best to stay pals with folk who vote No. Although I do reserve the right to say, “I told you so,” if something goes slightly awry in that future. You can do the same if there is a Yes vote and I am stopped for my passport the next time I cross over the land border to England at one of the regularly promised border posts.

So what will I do now? As one Twitter user perceptively noted, “We can’t just tweet and tweet and expect this social injustice to be righted. It will also take Facebook updates, maybe even blog posts.” On that test, I may have already gone beyond my Yes Scotland call of duty by writing this blog. You might even find me chatting about the issue with people. Perhaps I will wear a badge. I will not bother with any stickers though.

What if my efforts and the efforts of others lead to a Yes vote? Maybe we will not see massive change instantly. I can handle that. There will be very important negotiations to come, and I appreciate these will be challenging, but again I am willing to take that punt. I am not sure how soon it will be before the next independence bus comes along, so I vote to get on this one.

My closing thoughts, and closing words, about the future are offered to our friends in the RUK. I recently attended a Therapy? concert in Glasgow, where the frontman Andy Cairns made one of those non-Scottish sallies into the independence debate. His take? “I don’t care whether you are Scottish or British, it’s the people that matter, not the place.” To this he added, “And I should know, I’m fucking Northern Irish.” A sympathetic rock crowd is always ripe to cheer anything uttered from the stage, but I cheered that enthusiastically.

So there you go. I agree people matter more than the place, but it is not within my gift to unthink the post-Peace of Westphalia model of the nation state. For the reasons listed in this blog and more I think the people of Scotland can make a pretty good go of it as an independent nation. That is why I am voting Yes.

And I did not even mention bagpipes or Braveheart once.



Posted in Devolution, Scottish Independence | Tagged , , , , , | 7 Comments

Scottish University Law Clinic Network 2014

Another year, another Scottish University Law Clinic Network conference, and another opportunity to write a blog which doubles as: 1) a repository for my notes and thoughts from the event; and 2) a plug for Scotland’s network for all academic things pro bono publico. Previous notes about SULCN can be found on this blog here and here.


The latest SULCN offering was a day-long conference at Edinburgh University (PDF) with two prominent threads, namely: how law clinic participants can learn from social work; and Street Law. I have attended a David McQuoid-Mason Street Law session before, and I learnt much from it. Fascinating as Street Law is, this year I made the tactical decision to focus my attention on the social work side of things.


Carrie Anne Hagan, Susan McGraugh and Stephanie Kristen Boys, three clinicians from the USA who came to share knowledge and experience from clinical legal programmes at Indiana University and Saint Louis University, began the day with a plenary session, setting out their experiences from their respective civil law, criminal law and social work backgrounds. All this made for a great dynamic and set the scene for an holistic approach to law clinic clients; i.e. clients tend to come to a law clinic (or indeed a lawyer) when they have other problems in their life, so you may need to take a holistic overview of matters before you can solve the problem that is presented to you.


Why would a social work-type approach help with this? Law students might fixate on legal tasks, filling out paperwork, explaining disclaimers and the like, without actual displaying any emotional intelligence as to issues a client might be facing. Mental health issue spotting and awareness of financial challenges or indicators of poverty (perhaps where a client struggles to access a telephone or get to a court by public transport) might be crucial to a full understanding of, and in turn a solution to, an as yet unmet legal need. If law students gloss over such issues, or do not know how to address them, this could be a problem. This has led to an innovative (at least to a Scottish audience) approach to client interviewing at Indiana and Saint Louis, where the initial interview is conducted by a law student and a social work student. After this initial interview, it is up to the students to decide how best to run the case. A straight consumer dispute might be one for the black-letter lawyer, but a nuanced case involving a pattern of behaviour might be one for the social work student: interdisciplinary work in action. There may also be “legal” cases which are nothing of the sort, the example given on the day involving someone who kept being sent back into custody because he could not fill out the relevant forms and no-one offered to help or realised help was needed, making this case as much about literacy and issue-spotting as about legalities.


So what lessons might (Scots) law clinics take from this? The visiting academics invited students to think about what they are doing at the moment, what might they be missing, and where to find what you are missing. In a university setting, this could feasibly lead to relationships with social work, medical or business students, for welfare, healthcare or consumer protection issues respectively. Each clinic will be a creature of its own academic and geographic circumstances, but it does seem innovation and interdisciplinary approaches within such circumstances can be a clear part in the sustainability of clinical legal programmes. It was also stressed that parity of participation was crucial, i.e. that law students and (say) social work students need to know they are as important as each other (the bad interview practice of a law student failing to identify the social work student to the client was cited as a potential problem).


A number of social work theories and techniques were touched on (such as the systems theory and motivational interviewing), and the interviewing benefit of using speculative “what if…” questions rather than direct and judgemental “why…” questions was identified, not to mention the rapport building tools of using “well done” affirmations with a client who is conditioned into thinking they can only do wrong, or reflective listening to show that you are being attentive to someone. Some of this seemed reminiscent of client interviewing training and the ICCC, but social work insights add much to this and could no doubt be explained better by someone other than me (and hence the need for interdisciplinary work.)


So that was the social work side to the day, but there was much more going on at SULCN 2014. In addition to the networking, there was a number of workshops on things like innocence projects, the logistics of running a clinic and the educational side of clinical work. I attended a session hosted by Richard Grimes of York Law School, who discussed a number of approaches to formal clinical legal education and challenges that come from juggling the various aims of CLE. He made the point that those aims (such as social justice and skills development) need not be contradictory or conflicting, but he did acknowledge there can be tensions (some of which I have digested elsewhere on this blog). The discussion then turned towards assessment, including the central question of why should you assess at all. Responses include: to ensure students are developing; to sell a course to a host academic institution; and to foster an academic commitment to law clinics. Approaches to assessment (such as reflective writing, reflective portfolios and oral examinations) were also discussed, whilst recognising the well-known dangers of assessing individual cases which arbitrarily might fall to a student to deal with.


Like the year before, the conference concluded with input from solicitors and an advocate, who explained how pro bono publico work can continue long after graduation, be that via a channel like LawWorks Scotland or maintaining a relationship with a law clinic. In less than three years, SULCN has developed something of a niche role in Scotland in relation to this, both in terms of introducing students to a wide variety of pro bono activities at an early stage of their development and also to foster and showcase relationships across the profession away from the university environment. Long may that continue.

A Storify of this event is available here.

Posted in Academia, Access to Justice, Education, Law Clinics | Tagged , , , , , , , | Leave a comment

The Land of Scotland and the Common Good

The Land Reform Review Group has published its Final Report (PDF), entitled, “The Land of Scotland and the Common Good.” It is a hefty document, both in terms of page count and file size. It also has some big ideas, which will now be considered by the Scottish Ministers and (perhaps) the Scottish Parliament.

The 62 recommendations in the report represent something of a menu for Scottish Ministers to choose from. What will be chosen will become apparent in the coming months, but initial indications point towards an approval of the bill of fare: for example, the Minister for Environment and Climate Change, Paul Wheelhouse, has welcomed the report’s, “overall vision and proposed direction of travel.”

The more eye-catching proposed reforms include:

  • an “upper limit on the total amount of land in Scotland that can be held by a private land owner or single beneficial interest“;
  • legislation to make it “incompetent for any legal entity not registered in a member state of the European Union to register title to land in the Land Register of Scotland, to improve traceability and accountability in the public interest“; and
  • reform to the law of succession (inheritance), to end the traditional but quirky split between the treatment of immoveable and moveable property in Scots law (this recommendation builds on earlier work of the Scottish Law Commission).

Land reform campaigner Andy Wightman has blogged on the content of the report and he collates a number of different viewpoints at his blog. Scottish Land & Estates have offered a forthright critique.

Whilst my own role as an adviser to the LRRG has now finished, I will not be offering any thoughts on the content or indeed any subsequent analyses of the report until the Scottish Ministers take (or decide not to take) the recommendations forward. The only point that perhaps deserves reinforcement at this juncture is that land law reform clearly and inherently involves interference with existing rights, which interference always has the potential to burden a particular section of society and confuse what were thought to be settled [legal] positions. As such, reform needs to be handled sensitively. The very formation, information gathering and subsequent report of the LRRG can be seen as part of that sensitive process. Now it is over to the Scottish Ministers.

Posted in Land Reform, Property | Tagged , | Leave a comment

How I survived the sticker wars


Picture the scene, twenty or so years from now, in one of two alternative realities. [Cue wistful music.]

“Dad, what did you do in the fight for Scottish independence?”

“Well, son, I wrote some killer comments on the internet and decorated a bollard.”


“Dad, what did you do in the fight for the Union?”

“Well, son, I feigned offence to cybernattery and stuck a sticker on a pelican crossing.”

Welcome to my parody of the Scottish independence referendum. (Better parodies are available elsewhere.) What has triggered my parody? The photo at the beginning of this blog might be a clue, as might this photo from the east of Edinburgh (tweeted by Kezia Dugdale MSP)…


…and this blog by Ian Murray MP. (Murray’s blog followed on from an incident in Edinburgh, per this tweet, which in turn led to a riposte being posted at Wings Over Scotland.)

I have no doubt other examples of stickering could be found. I found my example outside Marischal College in Aberdeen.

Suppose for a moment we are in a Scots law exam of some sort. To adopt the lingo, quid iuris?

If the stickered property was owned by the person affixing the sticker, there is no problem, subject of course to the caveat that the message was not somehow defamatory or  otherwise illegal. (That caveat is not relevant here.)

I think it is fair to assume that the sticker-er in each instance did not own the stickered property, which might theoretically open up the possibility of a charge for vandalism (under statute) or malicious mischief (under common law). “Defences” that might be deployed by the sticker wielder might be: 1) the owner consented (that logic being relevant when you have parked in a monitored car-park with terms and conditions displayed to users, but a driver parks without complying with those ts & cs); or 2) that this was a manifestation of freedom of expression, an important political right.  Neither of these seems particularly relevant here. You can express yourself freely with “Yes” or “Better Together” clothing or a badge, but availing yourself of someone else’s property is not really on: I would be as entitled to object to an unsolicited “I LOVE BELINDA CARLISLE” sticker on my front window as I would be to an unsolicited “VOTE UKIP” sticker. (No offence to Belinda Carlisle.)

So that is the law, what of the situation in practice? My tweeted picture of a pristine Better Together sticker overlaying a tatty “2014” Saltire led to some correspondence with Aberdeen City councillors and a report in the Evening Express. I was contacted for a quote and the story appeared on Saturday 10 May 2014. (As far as I am aware there is no freely available online resource of the paper.) An extract from the report follows:

Malcolm Combe, an academic lawyer at the University of Aberdeen, has highlighted instances of fly posting around the city to the authorities.

He said: “As a lawyer, I feel if it’s someone else’s property then you shouldn’t be interfering with it.

“Vandalism may keep happening. This could be a starting point for larger instances of this happening but hopefully a stop will be put to it.

“People should simply wear a badge rather than fly posting.”

I appreciate it may seem a little strange to be quoting myself, and it might be a bit generous to describe my tweet as highlighting the issue to the authorities, but that is to quibble. I certainly said something along those lines, although I think the interviewer was more interested in the idea of this being the beginning of something bigger than I was. When asked about that possibility, I did muse that there was a “thin end of the wedge”-type argument that could be run, but I would be unpleasantly surprised if this did spiral into something bigger.

To conclude, the key and rather obvious point for a property lawyer to make is that you should not be interfering with someone else’s property, even if you really believe in a cause so much as to make you want to spread your message far and wide. What I parodied as a “fight” at the beginning of this blog might not become the stuff of ballads in days to come or win comparisons to other sovereign movements, but that does not change the perfectly clear point of law that is part of the scheme that should serve to keep the Scottish independence debate as civil as it has been to date.

All that said, and before anyone asks, I fully accept there are sometimes more important issues in the world to get worked up about than stickers.

Posted in Property, Scottish Independence | Tagged , | 2 Comments