The End Of The Affair

DELIVERING ON DEVOLUTION
REAL POWER FOR THE SCOTTISH PARLIAMENT

Good afternoon, ladies and gentlemen.

May I start by thanking you all for the privilege and pleasure of speaking today. I’m particularly pleased for two reasons:

I’m speaking today in commemoration of a man who was my friend, Alex Salmond, and I’ll be discussing something we agreed on.

You may find it surprising that we agreed on many aspects of how Scotland should be governed, given that he was obviously the leading exponent of Scottish independence in modern times, and I am a dyed-in-the-wool English Conservative UK unionist. The Bruce and Longshanks in agreement, if you like, although we never came to blows.

We both believed Scotland deserved the best possible government, but for various reasons, it’s not getting that. I’ll discuss how I think we can improve it.

I believed in the model of Scottish Parliament that Donald Dewar championed before he was blocked by the legalistic wing of his party. I will argue we should return to Dewar’s model.

I’m also particularly pleased to be speaking in Edinburgh. I’ve always viewed Edinburgh as one of the places where many of the founding principles of modern political economy, empirical philosophy, and human sciences were forged.

From Adam Smith’s free market principles and moral philosophy to David Hume’s inductive science of man, from Thomas Reid’s common-sense realism to the early social scientific histories of Adam Ferguson and William Robertson. Scotland’s thinkers didn’t just shape their time, they reshaped the way Britain, Europe and North America think about society, liberty and government. The influence of that is felt today, in our institutions, curricula, and policies.

Their integrated culture of improvement normalised a commercial, empirical, and civil modernity that endures today and is still the basis of the clearest thinking on modern democracy and modern politics.

In a sentence, the Scottish Enlightenment furnished the core intellectual toolkit of modern thought, from political economy and empirical philosophy, to the new human sciences. What that meant in practice was a political economy for a commercial world (Adam Smith’s articulation of markets, division of labour, and free trade in The Wealth of Nations became the template for modern economics and influenced policy globally), whilst his theory of moral sentiments grounded economic life in a wider moral psychology.

We obtained from the Enlightenment a new empiricism about human nature (David Hume recast philosophy as an inductive “science of man,” advancing radical empiricism and skepticism that shaped later psychology, social science, and secular intellectual culture).

Thomas Reid’s common sense philosophy countered scepticism of David Hume and, via transatlantic networks, became a bedrock of curricula in North American colleges in their founding era.

The social sciences, as it were, before they had that name (Adam Ferguson’s Essay on the History of Civil Society and William Robertson’s History pioneered systematic accounts of civil society progress, comparative history, seeding later sociology, anthropology, and professional historiography).

All this together provided an integrated culture of improvement through universities, clubs, and print. Scottish thinkers linked science, medicine, law, history, and moral philosophy in a practical reform-minded spirit that diffused widely across Europe and the Atlantic world. That is what the modern world owes Scotland.

Today, democracy is struggling. That is not just the true in Scotland: all modern democracies are stumbling in their attempts to deal with a new class of intractable problems across everything from healthcare to warfare, from diplomacy to cultural standards.

And because most modern democracies and most conventional centrist parties are failing in the eyes of the public, we’re seeing the rise of populist and extremist parties across the world.

So, what I say today in some ways is going to be true of all the countries within the United Kingdom and far beyond, too.

But today I’m going to talk specifically about Scotland because Ithink there are acute issues facing this nation which have potential solutions that can be agreed upon by all political parties. Indeed they should be agreed on by all political parties.

When I talk about the problems Scotland faces, you should understand that I speak as an admirer of this nation.

Scottish genius was important for the Scottish Enlightenment, but in many, many other respects, the Scottish nation has helped the United Kingdom and the rest of the world grow and improve in the interests of all citizens. Our union was not one of territorial gain, it was a union of ideas.

It is now a little over 25 years since the Scottish Parliament first met in May 1999. The nation was united behind the new Parliament. Three-quarters of Scots had voted in favour of devolution.

After all that, many of us had high hopes for the Scottish Government’s success in running its affairs. What I say now is not political nor indeed even personal.

I remember Donald Dewar’s speech in the opening day of the Scottish Parliament. “This is about more than our politics and our laws. This is about who we are, how we carry ourselves.”

He was right. But may I respectfully say, the Scottish Parliament has not carried itself with the pride and sense this nation deserves. But we can correct that. The people who care about the Scotland, care less about its constitution and more about how it carries itself.

They care about whether the hospital looks after their ageing parents properly, or delivers their children safely, whether schools give the best educational outcome for their youngsters and the best career prospects, whether taxpayers’ money is spent wisely.

By those measures, given Scotland’s talented population, Scotland should be a resounding success. I am afraid that has not been true.

When I was a young man, Scotland was one of the leading meritocracies in the world. One of its principal exports was incredibly talented and skilled young men and women from all sorts of social backgrounds.

Today it is falling down the International Education League tables, and even Nicola Sturgeon’s recent autobiography, not marked by its modesty, reveals that she failed miserably on the educational attainment gap.

Similarly, when I was a young man, Scotland was home to some of the best hospitals and best doctors in the world. Yet today, the performance of the Scottish health service is falling back even measured against the English NHS.

In 2015/16, funding was cut for alcohol and drugs services, and now Scotland has the highest drug death rate in Europe. The mortality rate in Scotland is now almost 13 times higher than the average in Europe, and above the mortality rate reported in comparable data from the United States.

As for managing the taxpayers’ money, the Scottish Government’s record is unbelievably bad. Whether it is the £600 million on the Ferguson Marine ferry fiasco, the nearly £1 billion spent on the new Glasgow prison, the deposit return scheme collapse, the BiFab bailout, or the never-ending expensive public inquiries: one way or another, the Scottish Government appears to have wasted about £6.7 billion.

It sounds bad in absolute terms but that is an astonishingly big number for a population of 5.5 million, with a working population of just over 3 million. That is £2,300 wasted for every Scottish income taxpayer.

These all might be seen at one level as failures of management, failures to manage the national enterprise properly. But government is about more than just management. Government is about changing society, and fundamental to that is legislation – creating new laws for the future. In that respect, the Scottish Government has had a more spectacular set of failures than most.

Three hugely controversial pieces of legislation stand out:

1. The Gender Recognition Reform Act

2. The Named Persons Bill

3. The Offensive Behaviour At Football Act

All of these failed and were either struck down by the courts or repealed by the government.

Critically, they failed the fundamental test of leadership in that they did not take the population with them in building a new vision of the future for Scotland.

If the Westminster village is often out of step with the rest of the UK, you could say that at times – crucial times – the Holyrood Hamlet does not represent what Scots really care about.

If Holyrood had been a fully effective parliament, some of these failures could have been prevented, and many of them would have been corrected.

Worse even than this, in my view, were the ethical failures of the Scottish Government. There were a number, but the starkest was the treatment of Alex Salmond.

I will not dwell on this in detail here, as I have spoken thousands of words about it in the Westminster Parliament. But let me simply say this: it is a failure that, like the other failures, reflects on the constitutional structure that we gave to the Government of Scotland back in 1999 and a mistake which I have to say that some Scots, most notably Donald Dewar, foresaw at the time.

The government put in place procedures that were described by the Scottish Court as “tainted by apparent bias”. And because of that bias those procedures were struck down in the judicial review.

In many countries of the world, what happened to Salmond might have been unsurprising: the distortion of the legal system, to bring oppressive charges against a previous leader. I have to say I never would have imagined it happening in any of the countries of the UK, certainly not Scotland with its people’s traditional respect for justice.

Of course the fundamentals of the justice system, a majority female jury and a fair minded female judge exonerated him. And I expect that his estate will now succeed in its claim against the government. The delays, the obstruction, the deceit, the spending of large quantities of taxpayers’ money in a deliberate attempt to exhaust his family’s resources. Again the classic behaviour of an unchallenged overmighty state.

What Donald Dewar wanted was for Holyrood to be a modern parliament, but equally important, he wanted it to be a powerful parliament on the model of Westminster.

The reason many parliaments in the world looked to Westminster as a model was because it was a successful parliament, as measured by the quality of government it delivered. The reason that it was a successful parliament, which Donald Dewar understood very well, was that it was a powerful parliament.

Note I say powerful “parliament”, not powerful “government”.

The powers vested in an individual member of Parliament in Westminster amount to almost unfettered freedom of speech because of the rules of privilege, absolute privilege. This matters because the single most powerful driver of democracy is fearless freedom of speech.

So, if as a British member of parliament I want to challenge a powerful entity – be that a government department, or a state, or a court which I think is guilty of a miscarriage of justice, or a wealthy oligarch who is abusing his powers in Britain, or any other entity that is far more powerful than I am – I will use my rights in Westminster parliament.

For example, when the British government of the day wrongly accused two pilots who flew a Chinook helicopter into the Mull of Kintyre of gross misconduct, I was able to challenge them in the House of Commons and expose the government’s behaviour as improper, even arguably corrupt, even though they tried to claim they had military reasons for their misbehaviour.

When Russian oligarchs were abusing the British legal system to crush their opponents, I was able to deal with them in the House of Commons without them being able to use the very same legal system against me. And when an oligarch tried, he failed miserably.

When other potential victims of miscarriages of justice needed their cases exposed to the world, whether it’s Postmasters persecuted by the state due to a faulty computer system, LIBOR traders like Tom Hayes forced to carry the can for the 2007 financial crisis, entrepreneurs like Mike Lynch harassed by the US legal system, or indeed Alex Salmond, I and others could use the House of Commons to highlight their cases without fear of some government or powerful individual or agency trying to take action against us.

Contrast that with the treatment of the Scottish Select Committee that investigated the Scottish Government’s handling of the Alex Salmond affair.

On several occasions, the Committee was informed by civil servants of untrue statements, which subsequently required correction. On other occasions, civil servants simply refused to answer questions on certain issues.

On one occasion, the Lord Advocate threatened the Committee with prosecution if they published some of the evidence that had been provided in that case, even though that evidence had already been published elsewhere in The Spectator newspaper.

Had anything like this been tried against a Westminster Select Committee, the individuals concerned would have been arraigned before the House of Commons. And the select committee would have rejected as ridiculous these attempts to handicap its work.

This shows, in a crystalline way, how important the absolute freedom of speech and freedom of inquiry is for Parliament to hold governments to account.

This, in my view, is why Donald Dewar considered this to be an important right to give to Holyrood. That is the right of absolute parliamentary privilege, so that you could not be either sued or prosecuted for what you said in Holyrood, as in Westminster. 

It is also why governments and executives almost never volunteer such powers. Being held to account is almost invariably uncomfortable. It is frequently politically costly or personally embarrassing. And that is why the parliaments themselves often have to seize those powers for themselves, as John Wilkes famously did in Westminster in the late 1700s.

So I repeat: Unfettered free speech is the most powerful motor of effective democracy. The curbing of free speech, the curbing of free information, and the curbing of free access are all contributors to the current poor state of Western democracy. And in particular to the poor state of Scottish democracy.

With that free speech, of course, comes a number of other conditions. The first of these is the duty of candour on the part of government and government agencies. This should not be controversial.

Indeed, the Labour Party or the Labour government in Westminster have promised to impose a duty of candour, the so-called Hillsborough principle, on government, although they have done nothing so far to actually implement it with respect to their own behaviour.

That duty of candour should be imposed on a Scottish government in dealing with a Scottish Parliament, and it should be enforceable in law. It should be matched by a range of other powers that should accrue to ordinary members of Holyrood and, in particular, members of opposition parties in Holyrood.

Back in the 19th century, Gladstone, when he created the Public Accounts Committee, the most powerful committee of the House of Commons, ensured that the chairman was always a member of the opposition, not a member of the governing party. The government could not change that.

I was the Westminster Chairman of the Public Accounts Committee in 1997 – 2001 and I intervened to help ensure that that was the case with the public audit committee when Holyrood was created.

We should do the same with all major committees in Holyrood today to ensure that the role of holding the government to account is carried out without any hesitation, timidity or fear.

That also means enhancing the powers, the remuneration, and the resourcing of the Select Committees, so that they are able to do their job to the full.

In addition, we should reinforce the role of Holyrood by reinforcing and enhancing the role of the Presiding Officer, what we would call the Speaker in Westminster.

This will include a whole series of apparently minor or procedural things which should be much more within the power of the Presiding Officer, such as:

1. The length of speeches should be increased so there can be serious intellectual challenges to government policy, not just a string of tweets and soundbites.

2. The free choice of subjects to debate and the right to summon the relevant minister to those debates, so that Holyrood, not the Scottish Government, decides the issue of the day.

3. Debates themselves should ideally be binding, but should certainly always carry more weight than they do currently.

The virtue of this has been proved in the House of Commons time and time again. A prime example occurred in 2011 when the European Court of Human Rights instructed the British government to grant prisoners the right to vote. I moved a motion in the House of Commons to refuse this instruction, which was carried by a majority of 200 votes. The government did what it was told, and the European Court backed down.

Now, if we accept that principle in Westminster and indeed in Europe, surely, we must accept it here in Scotland.

The voice of Scotland’s elected members must be treated with the same seriousness and force as the votes in the Commons, for only then can we have a balanced democracy.

It’s altogether too easy for governments in London as well as in Holyrood to timetable critical debates at times that deny them coverage and therefore influence. That subtle power alone can cripple the effectiveness of effectiveness of Holyrood.

All of this was made very plain in the debates over the treatment of Alex Salmond and the Select Committee’s unsuccessful attempts to get to the bottom of it. But that issue also highlighted one other thing, which is the lack of separation of powers between the Administration of Justice and the Government of the country.

This is a really serious issue in substantive terms, but it is also serious in that the public at large is losing their faith in the even-handedness of the justice system, in its own ability to rely on being treated fairly and receiving impartial justice.

Under circumstances like that it should not be even imaginable, let alone possible that the head of public prosecution process should be a serving member ofCabinet and itis a matter of urgency in my view that what in England would be an Attorney General and a Director for Public Prosecutions should be split into two different functions:

1. The Attorney General advises the government

2. The Director for Public Prosecutions is appointed independent of the government in power, by an independent process

It is not just true in Scotland. In the rest of the United Kingdom, the accusation of two-tier justice is just about the most toxic accusation you can make about an administration, and it’s happening altogether too much in too many places, even when we do have separation of powers. But independence of the law from government is the first and necessary step, and it is long overdue here.

The final aspect of enhancing Holyrood’s powers relates to the enforcement of accountability. Governments throughout the United Kingdom, and in Scotland in particular, have been generally cavalier about meeting their responsibilities for providing information and responding to parliaments.

This was at its starkest in the Alex Salmond case, where the government keeps refusing to provide or unredact documentation which is critical to the Hamilton Inquiry in particular.

They even essentially ignored the instructions of the Scottish Court of Sessions, as well as the instructions of the Information Commissioner.

It seems to me there should be a mechanism whereby a combination of the Information Commissioner and Parliament should be able to compel Government to release the appropriate documentation legally, and have the powers of summary dismissal of any public servant who refuses to comply – to comply with that irrespective of the stance of ministers.

It is quite apparent in both the current and recent Scottish governments that ministers appear to think that civil servants have a duty only to them and not to parliament.

That is wrong. It’s ignorant, and it’s self-serving. It’s constitutionally improper, and it reinforces a tendency of the Scottish Establishment, I’m afraid like any political establishment, to look after their own at the expense of the public.

Parliament, by which I mean members, individual members of parliament and individual opposition parties, should have the right to initiate binding debates. They should have the right to initiate not just parliamentary inquiries, but also public and judicial inquiries where appropriate. And crucially, they must have the resources available to them – resources that the government should not be able to suppress or withhold.

What we should be looking at in this era of populist revolt around the Western world is to make Holyrood a beacon of democracy. That is, I think, what it was intended to be when it was created back in 1999.

In the last twenty-five years the powers of the Scottish Government have been hugely enhanced. The powers of the Scottish Parliament – of individual MSPs – should be similarly enhanced to hold the Scottish Government to account.

Indeed, given the habit of modern governments of all parties in Westminster to go in the opposite direction, of trying to inhibit and handicap their Parliament’s ability to control government, I would like to see a circumstance in which Holyrood is seen as a better exemplar of democratic practice than Westminster is.

I can say this with a high degree of certainty, having stood on both sides of this line – as a government minister and Cabinet minister for well over a decade in the United Kingdom, as a Select Committee chairman in the most powerful select committee in Westminster, as an individual MP, battling on behalf of various people, trying to deal with the establishment in the Westminster government, but also the Scottish Government, and with a range of other national and international institutions.

More democracy is always better than less democracy. Always. Uncomfortable. But better. What governments will discover to their surprise is that the more powerful their democracy, the more robust their government is in the face of the populist challenges we are seeing today.

The answer to those populist challenges is more democracy, not less. A bolder constitutional experiment, not a more timorous one. More John Wilkes, less Sir Humphrey Appleby.

If Alex Salmond were here today, I am quite sure he would say ‘more bold Braveheart, less hesitant Hamlet’.

So that’s my task. And it’s what I’m going to call on all the parties to do – to make Holyrood a shining beacon of democracy, so that Edinburgh again will, as it once did before, give intellectual leadership to the whole world. Thank you.