So the Copenhagen climate change conference is over, with some good news as well as bad news.
Copenhagen
On the good news side, China and the US have actually managed to agree something. On the bad news side, it was not enough to meet UN targets of limiting rises in global temperatures to 2C above pre-industrial levels, and most of the other countries there might as well not have turned up. The other countries and in particular the EU could have failed to "take note of" the US/China accord, which was supported by Brazil and India, as a protest, but since the accord was not approved at the conference - unanimity would have been required for approval and that was not available from those countries who stand to be flooded by it - that would only have been symbolic. Also on the good side, it looks as if some concerted action will be taken on deforestation, which as I mentioned in Part 1 has a significant impact on the earth's carbon sink.
On limiting temperature rises, the accord stated that "We shall, recognising the scientific view that the increase in global temperature should be below 2C, on the basis of equity and in the context of sustainable development, enhance our long-term co-operative action to combat climate change." The accord did not in fact on its words adopt 2C as a target, even as a non-binding one, but instead "recognised" it as "the scientific view". The Intergovernmental Panel on Climate Change which is the author of this scientific view recommends that to meet a 2C target, developed countries must cut emissions by at least 25% from 1990 levels by 2020, and that global emissions must peak and begin to decline by 2020 at the latest. The accord came up with no collective target to cut emissions to achieve this and it did not specify a year at which emissions are to peak.
Because of the weak formulation of the agreement between the US and China, the EU did not offer, as it was prepared to do, to move its current target of a 20% cut in emissions by 2020 to 30%, and Australia and Japan stuck to their minimum offers. These offers will now be considered at the next round of discussions in Mexico next year, but China, India and Brazil will not it appears accept independent verification of whether they will meet whatever is agreed because of concerns about national sovereignty (or, put more succinctly, they do not like being pushed around by the west given that the west is still the largest global producer of human induced carbon dioxide).
The IPCC view is that what looks to be on offer for Mexico will cause global temperatures to rise by around 3C, but this seems to be about the best that can be achieved at the moment. As I mentioned in Part 1, feedback effects make it difficult to say for sure what the final result of the expected levels of carbon dioxide to be put into the atmosphere will be, because how the oceans will react to these rises is still subject to research.
Subsidiary issues
I have three other subsidiary thoughts. First, some of the remarks made about China: if I were in the Chinese government I would be somewhat annoyed about these. China may by now be putting into the atmosphere about the same amount, or slightly more, carbon dioxide than the US, but if so it is still way behind in emissions per head. China has a population of around 1,300 million, and the US around 310 million. There seems to me to be some hypocrisy at work here in order to force China to a (necessary) deal.
Secondly, despite forcing China into a deal it is not a foregone conclusion that President Obama will get the modest commitments made by him for the US through Congress, and in particular the Senate. The US is a wonderful but strange country (I was partly educated there and I like the place), but part of its strangeness is the anti-science views held by some of the right wing in the Republican party, where science sometimes seems to be viewed as a test of one's faith rather than representing any objective reality, supported in part also by the view that concessions are for wimps and inconsistent with the country's national prestige. I have noticed that this tinge of irrationality seems to be affecting some of the right wing political blogs in the UK now also (we have sites referring to the IPCC as "climate cooling deniers"), but this seems partly for the fun of having a good argument, partly a dislike of Gordon Brown and partly because those interested in politics tend not to know much about science.
Thirdly then, Gordon Brown. Readers of this blog will know I do not like the Gordon Brown/Ed Balls/Charlie Whelan axis of fixers which now charts the direction of the Labour Party in the lead up to next year's election, and which I happen to think the Labour party will end up regretting and find quite damaging to them. I also happen to think that Gordon Brown is unelectable. And I think his major role, with Donald Dewar, in bringing forward devolution for Scotland in a way which is seriously unfair to people in England, in order to retain electoral advantages for the Labour party in forming a UK government, is to be seriously deprecated. And I think he is now being reckless with the public finances (and also that his agreement with the French to tax the City to produce money for the global warming fund for developing nations shows an astonishing lack of grasp of the national interest1).
However, on climate change the fact of the matter is that he has been putting in significant good work, and I do not think this was just political posturing with an eye to next year's election. I must give some credit where it is due.
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1 This fund is one of the good news parts of the accord. But putting a specific tax on the City is madness.
Sunday 20 December 2009
Thursday 17 December 2009
Warming to the argument
As it has been snowing today, I thought I would turn to global warming, which has been the subject of debate since internal e-mails within the Climate Research Unit of the University of East Anglia were hacked into and published.
Those involved in climate research have been "revising" or "weighting" old data, and it so happens that this revising has emphasised warming in the last two decades as against temperatures experienced during a warm period between around 1000 and 1350 AD and in the 1930s. The issue is whether this revising was for objective scientific reasons - to account for example for a better understanding of differences in measuring techniques applicable to estimating temperatures at different times in the past (eg from tree rings) - or whether the hacked e-mails show that there has been an illegitimate manipulation of data done because those who did it thought it was "in a good cause", namely to strengthen the case for the saving of the planet. A sub-issue is the extent to which the collected data is still objectively reliable given this revision.
The background
Some facts are a matter of accepted science by all those on both sides of the debate. It is indisputable that human activity has affected and will continue to affect the global climate. Everyone accepts that carbon dioxide at trace levels is a greenhouse gas, the release of which into the atmosphere by the burning of fossil fuels will increase global temperatures. The question is to what extent and whether it matters.
The problem here is that the impact of increases of carbon dioxide in the atmosphere creates instabilities: every mole of carbon dioxide that is released into the atmosphere causes through warming approximately an additional two moles of water vapour to be released, which has a more potent greenhouse effect than does carbon dioxide. In addition, as polar ice melts, the heat absorption of the earth increases (less solar radiation is reflected back into space) thus also increasing temperatures, and the methane trapped in frozen northern latitudes is also released to the atmosphere, which is itself a very potent greenhouse gas. Against that there are balancing factors the other way, namely that both the oceans and natural plant growth (and plant growth increases as levels of carbon dioxide increase) form carbon dioxide sinks; and increased cloud formation increases the reflection of solar radiation from earth. It is indisputable that a point would be reached at which the second will not be capable of accommodating the first and some form of runaway would take place. This tipping point would come at lower levels of fossil fuel consumption if we continue to cut down the rain forests, as the rain forests form a significant proportion of the earth's current carbon sink. There are other natural processes, in particular rock (silicate) weathering, which decrease levels of carbon dioxide, but the time scales for this are much too long to operate in the period we are concerned with.
All climate scientists agree that the ultimate fate of the earth will be thermal runaway, and the climate will become similar to that of Venus - temperatures well beyond 100C and so hot as to incapable of sustaining any form of conventional life. This will occur irrespective of the effects of mankind on the environment because the luminosity of the sun is increasing at a rate of about 8% per 1 billion years as it expends its nuclear fuel. The earth is now approximately 4.5 billion years old, and plant life in one form or another has existed for about 500 million years. In approximately 100 million years the indirect effects of rising temperatures on photosynthesis from increased solar radiation will cause most of today's plant life to die out (perversely perhaps, this will arise because silicate weathering from increased temperatures will by then have reduced levels of carbon dioxide to below those necessary for the main form of photosynthesis to take place). In 1 billion years' time the oceans will have evaporated and earth will begin losing some of its atmosphere; and by about 4 billion years' time complete thermal runaway will have taken place. Such life destroying thermal runaway will be later followed by the sun turning into a red giant in its final period of nuclear fusion about 7 billion years from now, during which the earth will be burnt to a crisp. The sun will then collapse and be extinguished (it will become a black dwarf).
Such extinction of life is a long way ahead viewed from our perspective (although a short time ahead in terms of the evolution of life on earth), and I entirely accept the argument that we do not want to hasten our demise, but as Private Fraser would have said, as a species "we're all doomed I tell ye"1.
Moving back to the present, it should also be noted that the earth has already experienced wide climate variation. We are at present in an ice age, that is a time when there are permanent ice sheets on both poles. To be more exact we are in an inter-glacial period of an ice age. There have been times (in fact the majority of time in the history of animal life on earth) when there have been no permanent ice caps. There have been other times when the ice sheets have nearly extended to the equator - the "snowball earth". This climate variation has been caused by variations in the luminosity of the sun (which as mentioned increases over time), the position of the earth and its orbit in relation to the sun and most particularly by the effect of the movements of the continents through plate tectonics on ocean currents.
Where we are
For the reasons mentioned above, in planning for the future we are looking at around the next 50 to 100 million years (a long time by human standards). After that, the bets are off from natural causes which we cannot avert. As I say, the question is whether human induced global warming (as opposed to long term solar induced global warming) matters when looking at that period. The problem we have is that we don't know for sure how serious those effects will be, but there certainly will be effects.
The two possible effects from increasing levels of carbon dioxide deposition in the atmosphere are:
The current furore about whether global temperatures have decreased over the past decade is really a side issue, since short-term climatic variation is quite normal: there was a warm period about a thousand years ago, and a cold period about 600 years ago. The fact of the matter is that viewed from a longer term perspective, releasing carbon dioxide into the atmosphere will cause long-term rises in global temperatures, some polar melting and some changes in weather patterns. The latter two are being observed now. (Although global temperatures may not have been rising over the past decade, polar temperatures certainly have.) The question is how much of this will be caused and to what extent we can take it as a global society.
To give complete balance, the interglacial period we are now in will also at some point end. This will likely cause some re-glaciation of northern areas, and thus also population relocations and possibly war. But the time scales for that are much less pressing than those caused by global warming through consumption of fossil fuels and deforestation.
The fact of the matter is that levels of carbon dioxide in the atmosphere are increasing and this will have an effect. Future generations will rightly curse us if we fail to deal with it now; and it is getting urgent. It would be a great shame if any unscientific activities by those at the Climate Research Unit that may have taken place because they "thought it was in a good cause" - and we won't know whether there were or not until the inquiry at present under way reports - serves to cloud this truth.
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1 Even if the human species escapes thermal runaway on the earth by establishing a human-friendly atmosphere on Mars and moving there, life on Mars would also be made unsustainable when the sun enters its red giant phase. Even if that is avoided by moving to another solar system, if one wants to be particularly morbid it should be noted that the second law of thermodynamics and the unavoidable increase in entropy over time give us a one-way ticket to nothingness, albeit in a very, very, very long time, even if other unpleasant events do not intervene before then such as the decay of fundamental particles, a big crunch or a big rip.
Those involved in climate research have been "revising" or "weighting" old data, and it so happens that this revising has emphasised warming in the last two decades as against temperatures experienced during a warm period between around 1000 and 1350 AD and in the 1930s. The issue is whether this revising was for objective scientific reasons - to account for example for a better understanding of differences in measuring techniques applicable to estimating temperatures at different times in the past (eg from tree rings) - or whether the hacked e-mails show that there has been an illegitimate manipulation of data done because those who did it thought it was "in a good cause", namely to strengthen the case for the saving of the planet. A sub-issue is the extent to which the collected data is still objectively reliable given this revision.
The background
Some facts are a matter of accepted science by all those on both sides of the debate. It is indisputable that human activity has affected and will continue to affect the global climate. Everyone accepts that carbon dioxide at trace levels is a greenhouse gas, the release of which into the atmosphere by the burning of fossil fuels will increase global temperatures. The question is to what extent and whether it matters.
The problem here is that the impact of increases of carbon dioxide in the atmosphere creates instabilities: every mole of carbon dioxide that is released into the atmosphere causes through warming approximately an additional two moles of water vapour to be released, which has a more potent greenhouse effect than does carbon dioxide. In addition, as polar ice melts, the heat absorption of the earth increases (less solar radiation is reflected back into space) thus also increasing temperatures, and the methane trapped in frozen northern latitudes is also released to the atmosphere, which is itself a very potent greenhouse gas. Against that there are balancing factors the other way, namely that both the oceans and natural plant growth (and plant growth increases as levels of carbon dioxide increase) form carbon dioxide sinks; and increased cloud formation increases the reflection of solar radiation from earth. It is indisputable that a point would be reached at which the second will not be capable of accommodating the first and some form of runaway would take place. This tipping point would come at lower levels of fossil fuel consumption if we continue to cut down the rain forests, as the rain forests form a significant proportion of the earth's current carbon sink. There are other natural processes, in particular rock (silicate) weathering, which decrease levels of carbon dioxide, but the time scales for this are much too long to operate in the period we are concerned with.
All climate scientists agree that the ultimate fate of the earth will be thermal runaway, and the climate will become similar to that of Venus - temperatures well beyond 100C and so hot as to incapable of sustaining any form of conventional life. This will occur irrespective of the effects of mankind on the environment because the luminosity of the sun is increasing at a rate of about 8% per 1 billion years as it expends its nuclear fuel. The earth is now approximately 4.5 billion years old, and plant life in one form or another has existed for about 500 million years. In approximately 100 million years the indirect effects of rising temperatures on photosynthesis from increased solar radiation will cause most of today's plant life to die out (perversely perhaps, this will arise because silicate weathering from increased temperatures will by then have reduced levels of carbon dioxide to below those necessary for the main form of photosynthesis to take place). In 1 billion years' time the oceans will have evaporated and earth will begin losing some of its atmosphere; and by about 4 billion years' time complete thermal runaway will have taken place. Such life destroying thermal runaway will be later followed by the sun turning into a red giant in its final period of nuclear fusion about 7 billion years from now, during which the earth will be burnt to a crisp. The sun will then collapse and be extinguished (it will become a black dwarf).
Such extinction of life is a long way ahead viewed from our perspective (although a short time ahead in terms of the evolution of life on earth), and I entirely accept the argument that we do not want to hasten our demise, but as Private Fraser would have said, as a species "we're all doomed I tell ye"1.
Moving back to the present, it should also be noted that the earth has already experienced wide climate variation. We are at present in an ice age, that is a time when there are permanent ice sheets on both poles. To be more exact we are in an inter-glacial period of an ice age. There have been times (in fact the majority of time in the history of animal life on earth) when there have been no permanent ice caps. There have been other times when the ice sheets have nearly extended to the equator - the "snowball earth". This climate variation has been caused by variations in the luminosity of the sun (which as mentioned increases over time), the position of the earth and its orbit in relation to the sun and most particularly by the effect of the movements of the continents through plate tectonics on ocean currents.
Where we are
For the reasons mentioned above, in planning for the future we are looking at around the next 50 to 100 million years (a long time by human standards). After that, the bets are off from natural causes which we cannot avert. As I say, the question is whether human induced global warming (as opposed to long term solar induced global warming) matters when looking at that period. The problem we have is that we don't know for sure how serious those effects will be, but there certainly will be effects.
The two possible effects from increasing levels of carbon dioxide deposition in the atmosphere are:
- Warming that does not reach the point of causing a runway effect: this would involve melting of the polar ice caps causing a significant rise in sea levels, so flooding a substantial proportion of present land masses, and significant changes in rainfall and weather patterns in relation to the land which remains.
- Warming that gives rise to thermal runaway.
The current furore about whether global temperatures have decreased over the past decade is really a side issue, since short-term climatic variation is quite normal: there was a warm period about a thousand years ago, and a cold period about 600 years ago. The fact of the matter is that viewed from a longer term perspective, releasing carbon dioxide into the atmosphere will cause long-term rises in global temperatures, some polar melting and some changes in weather patterns. The latter two are being observed now. (Although global temperatures may not have been rising over the past decade, polar temperatures certainly have.) The question is how much of this will be caused and to what extent we can take it as a global society.
To give complete balance, the interglacial period we are now in will also at some point end. This will likely cause some re-glaciation of northern areas, and thus also population relocations and possibly war. But the time scales for that are much less pressing than those caused by global warming through consumption of fossil fuels and deforestation.
The fact of the matter is that levels of carbon dioxide in the atmosphere are increasing and this will have an effect. Future generations will rightly curse us if we fail to deal with it now; and it is getting urgent. It would be a great shame if any unscientific activities by those at the Climate Research Unit that may have taken place because they "thought it was in a good cause" - and we won't know whether there were or not until the inquiry at present under way reports - serves to cloud this truth.
__________________________________________
1 Even if the human species escapes thermal runaway on the earth by establishing a human-friendly atmosphere on Mars and moving there, life on Mars would also be made unsustainable when the sun enters its red giant phase. Even if that is avoided by moving to another solar system, if one wants to be particularly morbid it should be noted that the second law of thermodynamics and the unavoidable increase in entropy over time give us a one-way ticket to nothingness, albeit in a very, very, very long time, even if other unpleasant events do not intervene before then such as the decay of fundamental particles, a big crunch or a big rip.
Friday 11 December 2009
Keeping confidences
Most readers will by now know that Jack Straw issued a certificate yesterday under section 53 of the Freedom of Information Act 2000 overriding a decision made by the Information Commissioner under Part 4 of that Act that the 1997 minutes of the Cabinet Ministerial Committee on Devolution to Scotland and Wales and the English Regions should be released in response to an information request under the 2000 Act. It was this Cabinet committee which had the task of establishing how the devolution commitments in the Labour party's 1997 election manifesto (which were in rather vague terms) should be implemented.
The retention of information
The Cabinet Office had refused the information request for these minutes on the grounds (a) that they fall within the exemption in sections 35 (information relating to the formulation of government policy) and 36 (information which would be likely to prejudice the maintenance of the convention of the collective responsibility of Ministers of the Crown or be likely to inhibit the free and frank provision of advice, or the free and frank exchange of views for the purposes of deliberation), and (b) that by virtue of this prejudice the public interest in maintaining the exemption outweighs the public interest in disclosing the information. Both limbs needed to be fulfilled for the minutes to be withheld, because the section 35 and 36 exemptions are not absolute exemptions. To withhold them the "balance of the public interest" test also has to be applied and met. The Cabinet Office thought it was, but the Information Commissioner disagreed.
Section 53 of the 2000 Act gives the relevant Minister of the Crown power to override decisions of the Information Commissioner or Information Tribunal on the public interest test where the decision relates to amongst others a government department, by issuing a certificate under that section. This power has only been used once before.
I have to say that, contrary to received opinion in the blogosphere, I have very little argument with Jack Straw's decision. In my view it would result in worse government, not better, if ministers or their advisers could not say what their real views were on a matter before the Cabinet because of fears that those views may subsequently come out within a period which is still politically active, particularly if those ministers are still in government, as some still are - including in particular Jack Straw. One would expect there to have been differences of opinion on how devolution was to be implemented to give effect to the manifesto commitment - on a point of such constitutional significance it would be disappointing if there were not. Nor do I have a problem with the government having the reserve power to override the Information Commissioner. At the end of the day I think matters of constitutional importance should be decided by our elected representatives, who can take their chances at the ballot box.
As one could predict, those with strong views about devolution are now bringing up their own theories about what the government is trying to hide. The SNP have issued a statement indicating that the minutes will show that there were some in the cabinet unpersuaded by the case for the granting of wide legislative powers under the devolution arrangements and that the government are trying to hide this. The Scotsman newspaper in an editorial seems offended that the Cabinet may have discussed knock-on effects such as whether it should result in review of the Barnett formula and whether Scottish over-representation at Westminster should be reduced to bring it to the level of representation applying in England. The former has not yet happened, the second in the end did. (The Scotsman editorial writer also appears to think that the Information Tribunal can override the section 53 certificate - it can't.)
As I say, there ought to have been and quite probably was robust discussion about the extent to which devolution was to go and about its knock-on effects elsewhere, during the course of which those in the Donald Dewar camp (probably including Gordon Brown), who wanted a wide range of powers to be devolved including legislative competence, won the argument. As I have commented before in this blog, many seem to underestimate the amount of autonomy given by the Scotland Act 1998 to the Scottish government and Parliament, including legislative and executive autonomy in the fields of health (there no longer is a "National Health Service" in the UK sense), education, housing, local government, transport (other than air transport) and most of the justice system. Unlike the proposals of a decade earlier, the 1998 Act works on the principle that everything is devolved unless it is explicitly stated in the Act to be a reserved matter. It did so so successfully, that 80% of the business as Westminster now relates to England and Wales, or England only.
Those who want a Parliament for England have put forward the opposite hypothesis, that what the government is trying to hide is its indifference to the unfairness for those in England of the current devolution arrangements, and/or that in Labour's own self-interest it never seriously intended meaningful devolution for England. The latter may well be true because as I have previously commented the regional devolution proposals brought forward by John Prescott were weak in the extreme, to the point of showing bad faith. However I doubt very much that the government were in 1997 indifferent to unfairness to people in England - unfairness is not the business of those having to face an electorate at 5 yearly intervals. Probably they just felt they could "face it out" in the short term and that something would turn up in the medium to long term.
The future
So, although withholding the Cabinet minutes may avoid annoying people in England and Scotland who are sensitive to annoyance about devolution in more or less equal measures, the decision seems to me to be right insofar as it relates to Cabinet government and collective responsibility.
An interesting point arises about the future however. Whether or not the Tories end up with a majority in the next Parliament, and I still think they will, they are almost certain to form the largest party and in the event of a hung Parliament either form a minority administration or form a pact with the Liberals. If in a year's time another information request arrives, one can predict that the Information Commissioner will remain of his present view.
Will the then Minister of Justice want to renew the section 53 certificate, or would he or she quite like Labour to be discomforted by the Information Commissioner? And how does this relate to the convention that a government does not get to see the previous government's confidential cabinet papers? The then Minister of Justice (or however else he/she chooses to style the name of the office) will have to see the minutes to reach a view on whether to renew the certificate. A tricky issue - one which quite probably an incoming Tory government will choose to let lie. After all, it would have plenty of other things to worry about. In any event, the present government announced in the summer that it was reducing the then-applicable 30 year period for release of Cabinet papers as public records to 20 years, and many on the Tory side thought this was a weak attempt to relight feelings of antipathy concerning Margaret Thatcher in advance of the pending election. The Tories could just wait another 8 years and allow Labour to embarrass itself with its own policy (in good time for the election after next).
The retention of information
The Cabinet Office had refused the information request for these minutes on the grounds (a) that they fall within the exemption in sections 35 (information relating to the formulation of government policy) and 36 (information which would be likely to prejudice the maintenance of the convention of the collective responsibility of Ministers of the Crown or be likely to inhibit the free and frank provision of advice, or the free and frank exchange of views for the purposes of deliberation), and (b) that by virtue of this prejudice the public interest in maintaining the exemption outweighs the public interest in disclosing the information. Both limbs needed to be fulfilled for the minutes to be withheld, because the section 35 and 36 exemptions are not absolute exemptions. To withhold them the "balance of the public interest" test also has to be applied and met. The Cabinet Office thought it was, but the Information Commissioner disagreed.
Section 53 of the 2000 Act gives the relevant Minister of the Crown power to override decisions of the Information Commissioner or Information Tribunal on the public interest test where the decision relates to amongst others a government department, by issuing a certificate under that section. This power has only been used once before.
I have to say that, contrary to received opinion in the blogosphere, I have very little argument with Jack Straw's decision. In my view it would result in worse government, not better, if ministers or their advisers could not say what their real views were on a matter before the Cabinet because of fears that those views may subsequently come out within a period which is still politically active, particularly if those ministers are still in government, as some still are - including in particular Jack Straw. One would expect there to have been differences of opinion on how devolution was to be implemented to give effect to the manifesto commitment - on a point of such constitutional significance it would be disappointing if there were not. Nor do I have a problem with the government having the reserve power to override the Information Commissioner. At the end of the day I think matters of constitutional importance should be decided by our elected representatives, who can take their chances at the ballot box.
As one could predict, those with strong views about devolution are now bringing up their own theories about what the government is trying to hide. The SNP have issued a statement indicating that the minutes will show that there were some in the cabinet unpersuaded by the case for the granting of wide legislative powers under the devolution arrangements and that the government are trying to hide this. The Scotsman newspaper in an editorial seems offended that the Cabinet may have discussed knock-on effects such as whether it should result in review of the Barnett formula and whether Scottish over-representation at Westminster should be reduced to bring it to the level of representation applying in England. The former has not yet happened, the second in the end did. (The Scotsman editorial writer also appears to think that the Information Tribunal can override the section 53 certificate - it can't.)
As I say, there ought to have been and quite probably was robust discussion about the extent to which devolution was to go and about its knock-on effects elsewhere, during the course of which those in the Donald Dewar camp (probably including Gordon Brown), who wanted a wide range of powers to be devolved including legislative competence, won the argument. As I have commented before in this blog, many seem to underestimate the amount of autonomy given by the Scotland Act 1998 to the Scottish government and Parliament, including legislative and executive autonomy in the fields of health (there no longer is a "National Health Service" in the UK sense), education, housing, local government, transport (other than air transport) and most of the justice system. Unlike the proposals of a decade earlier, the 1998 Act works on the principle that everything is devolved unless it is explicitly stated in the Act to be a reserved matter. It did so so successfully, that 80% of the business as Westminster now relates to England and Wales, or England only.
Those who want a Parliament for England have put forward the opposite hypothesis, that what the government is trying to hide is its indifference to the unfairness for those in England of the current devolution arrangements, and/or that in Labour's own self-interest it never seriously intended meaningful devolution for England. The latter may well be true because as I have previously commented the regional devolution proposals brought forward by John Prescott were weak in the extreme, to the point of showing bad faith. However I doubt very much that the government were in 1997 indifferent to unfairness to people in England - unfairness is not the business of those having to face an electorate at 5 yearly intervals. Probably they just felt they could "face it out" in the short term and that something would turn up in the medium to long term.
The future
So, although withholding the Cabinet minutes may avoid annoying people in England and Scotland who are sensitive to annoyance about devolution in more or less equal measures, the decision seems to me to be right insofar as it relates to Cabinet government and collective responsibility.
An interesting point arises about the future however. Whether or not the Tories end up with a majority in the next Parliament, and I still think they will, they are almost certain to form the largest party and in the event of a hung Parliament either form a minority administration or form a pact with the Liberals. If in a year's time another information request arrives, one can predict that the Information Commissioner will remain of his present view.
Will the then Minister of Justice want to renew the section 53 certificate, or would he or she quite like Labour to be discomforted by the Information Commissioner? And how does this relate to the convention that a government does not get to see the previous government's confidential cabinet papers? The then Minister of Justice (or however else he/she chooses to style the name of the office) will have to see the minutes to reach a view on whether to renew the certificate. A tricky issue - one which quite probably an incoming Tory government will choose to let lie. After all, it would have plenty of other things to worry about. In any event, the present government announced in the summer that it was reducing the then-applicable 30 year period for release of Cabinet papers as public records to 20 years, and many on the Tory side thought this was a weak attempt to relight feelings of antipathy concerning Margaret Thatcher in advance of the pending election. The Tories could just wait another 8 years and allow Labour to embarrass itself with its own policy (in good time for the election after next).
Saturday 5 December 2009
Digital Economy Bill
The Digital Economy Bill was introduced into the House of Lords by Lord Mandleson shortly after the Queen's Speech and received its Second Reading last week. Clauses 4 to 17 of this Bill give effect to the so-called "three strikes and out" proposals, under which repeated downloading of material in breach of copyright will cause an internet subscriber to be disconnected from the internet or otherwise restricted in some way (what the Bill refers to as "technical measures").
Breach of copyright is breach of copyright, and although many think that attempting to prevent unlawful sharing of copyrighted material over the internet is a fruitless exercise which is bound to fail in the end, a few countries have been persuaded by the international media corporations (mainly those making and selling CDs and DVDs) to attempt legislation in the area. These include France and now the United Kingdom, but this approach is not yet widespread. To that extent the UK and France will be something of a test bed.
These proposals have to be viewed against the background that for many access to the internet has become essential to leading a normal life - a point the government itself made when promulgating its proposals for broadband to be made available compulsorily over the whole of the UK, including rural areas, to be paid for by current telephone subscribers. For many, probably most, it has become as important to everyday life as did the provision of electricity supplies in the last century.
One feature of the Bill is that practically everything of substance, including the procedures for giving warnings (and indeed even the number of warnings - there is no mention in the Bill of "three strikes") is to be fleshed out in codes of practice. The Bill requires the provisions of the codes to be objectively justifiable, non-discriminatory, proportionate and transparent, and to provide rights of appeal ("subscriber appeals") to an independent technical panel and thence (if a subscriber has been cut off or had internet access restricted) on grounds to be specified in the code to an Appeals Tribunal, but this is a poor substitute for spelling out more of the detail and the subscriber protections in the Bill itself, particularly as these codes will only be subject to the most limited Parliamentary examination - some require approval by statutory instrument subject to annulment procedure, which is cursory enough given that Parliamentary time is rarely given to annulment motions, and some are not even subject to that. The Data Protection Act 1998 for example sets out considerably more detail on the information which is protected by it, and on enforcement and appeals.
There is a good analysis of the Bill produced by the UK's Open Rights Group so I will not go into more detail about it here: those interested can read that article. I should say though that I do not agree with the Group's contention that the appeal procedures are defective because it would not be open to an internet subscriber to appeal a proposal that he or she should be cut off on the grounds that what was done was not in fact in breach of copyright. The Group reason that the "copyright infringement disputes" subject to appeal comprise a dispute which "relates to an act or omission in relation to a technical obligation or the technical obligations code" and that this does not go to whether there was a breach of copyright in the first place. However it seems to me that what would be appealed would be the cutting-off of the internet supply or the placing of restrictions on the internet supply to the subscriber - that would be the "act in relation to ... the technical obligations code" and that would allow the subscriber to raise the issue of whether the rights of the copyright owner have in fact been infringed, and not just whether in fact file sharing took place. The Bill provides for two levels of appeals. For cases only involving the "initial obligations code" (mainly involving preparation of copyright infringement lists) there will be no second right of appeal from the technical panel to the Appeals Tribunal, but there will be once the possibility of being cut off or having internet access restrictions imposed comes into play through the "technical obligations code".
Nonetheless I think the Bill is subject to criticism on the grounds that these essential protections are left to the codes rather than set out in the Bill itself.
Leaving aside the detail set out in the Open Rights Group analysis, there are four other overview points I would make about the Bill. First we (the internet subscribers) are going to pay for this. The Bill provides for copyright owners wanting to invoke the procedures to contribute to the costs of internet service providers in operating the code, but these are not required by the Bill to be pound for pound. In addition, internet service providers as well as copyright owners can be required to contribute to OFCOM's costs in drawing up the codes, and in preparing reports, which it would have to do both quarterly and annually, about copyright infringement by internet subscribers. This is a form of taxation, to be met in the end by internet subscribers, rather nicely described as a "sharing of costs".
Secondly, although the Bill enables (but does not require) the code to compel a copyright owner to enter into arrangements with an internet service provider regarding the number of copyright infringements the owner can allege against the provider's subscribers within a particular period, there are no sanctions for repeated incorrect or inaccurate claims of infringement leading subscribers to be cut off when they should not be, or to spend the time and effort in appealing when they should not have to do so. In particular, no protection is offered for subscribers against those alleging infringement other than that of appeal. The omens are not good on this: a number of claims of illegal file sharing have been made by media company representatives against people in the United States under different (US federal) legislation where the evidence for this has been shown to be simply wrong or technically deficient, but I also make the more general observation that human nature is such that if overly broad powers are given they will in the end be abused. Even the police are prone to that, as witness the improper use they have been making of sections 44 and 58 of the Terrorism Act 2000 to prevent people taking photographs in public places in a way we would not have thought possible in this ostensibly free country only three or four years ago. If the police feel able to do this, what about distant media companies with zealous middle managers wanting to meet their quota for catching "those criminal file sharing commies", companies which probably aren't even in a UK legal jurisdiction to begin with.
The potential for abuse is further widened by the fact that the Bill provides that the codes may provide that "the number and nature of copyright infringement reports relating to the subscriber may be taken into account for the purposes of any technical measures" (that is, a cutting-off), and that there can be a minimum threshold number of reports before an internet service provider is required to take action as well as a maximum number of infringements that a copyright owner can make. These "copyright infringement reports" are the copyright owner's allegations of infringement, not proven infringements. And any warning to a subscriber sent by virtue of an infringement report does not even need to be sent by post - according to proposed new section 124A(7) of the Communications Act 2003 as inserted by clause 4 of the Bill it would be sufficient if it is sent by e-mail, even though e-mail is known not to be a reliable means of delivery. Within the first year or two of a scheme of this kind coming into force, we will be having our first horror stories of people being cut off the internet where they should not be as a result of the poor practices of those operating the scheme and in particular of the media companies, poor practices which will quite probably be strenuously denied until someone does the public service of leaking some internal documents demonstrating it. I do not think the Bill as yet requires the codes to be robust enough to deal with this.
Thirdly, the cutting-off of a subscriber, or other technical measures, are not necessarily the end of the matter. The internet service provider could be required on application to a court to reveal the name of a subscriber equating to a particular internet address (the numerical internet address given to a computer or router when connecting to the provider's internet service). I do not have a problem with that provided that data protection safeguards are met (and they should be if application has to be made to a court), but it demonstrates that there are other remedies available to an infringed copyright owner apart from cutting a subscriber off. To the credit of the Bill, it does provide in clause 5 a "subscriber identity firewall" which requires an order of the court before actual names can be revealed.
Fourthly, clause 17 of the Bill enables amendment of Parts 1 and 7 of the Copyright, Designs and Patents Act 1988 by order made by statutory instrument subject to affirmative procedure just on the grounds that it is "for the purpose of preventing or reducing the infringement of copyright by means of the internet, if it appears to the Secretary of State appropriate to do so having regard to technological developments that have occurred or are likely to occur". Apart from the fact that this is a grossly excessive power to confer - to change the fundamentals of copyright law as set out in Part 1 of the 1988 Act - it is difficult to see how this could be necessary to give effect to the intentions of clauses 4 to 16 of the Bill. The government's explanation for this extraordinary provision at Second Reading was completely unconvincing and it would be very alarming if this clause were to survive into the Bill as enacted. Let's hope it does not do so.
Breach of copyright is breach of copyright, and although many think that attempting to prevent unlawful sharing of copyrighted material over the internet is a fruitless exercise which is bound to fail in the end, a few countries have been persuaded by the international media corporations (mainly those making and selling CDs and DVDs) to attempt legislation in the area. These include France and now the United Kingdom, but this approach is not yet widespread. To that extent the UK and France will be something of a test bed.
These proposals have to be viewed against the background that for many access to the internet has become essential to leading a normal life - a point the government itself made when promulgating its proposals for broadband to be made available compulsorily over the whole of the UK, including rural areas, to be paid for by current telephone subscribers. For many, probably most, it has become as important to everyday life as did the provision of electricity supplies in the last century.
One feature of the Bill is that practically everything of substance, including the procedures for giving warnings (and indeed even the number of warnings - there is no mention in the Bill of "three strikes") is to be fleshed out in codes of practice. The Bill requires the provisions of the codes to be objectively justifiable, non-discriminatory, proportionate and transparent, and to provide rights of appeal ("subscriber appeals") to an independent technical panel and thence (if a subscriber has been cut off or had internet access restricted) on grounds to be specified in the code to an Appeals Tribunal, but this is a poor substitute for spelling out more of the detail and the subscriber protections in the Bill itself, particularly as these codes will only be subject to the most limited Parliamentary examination - some require approval by statutory instrument subject to annulment procedure, which is cursory enough given that Parliamentary time is rarely given to annulment motions, and some are not even subject to that. The Data Protection Act 1998 for example sets out considerably more detail on the information which is protected by it, and on enforcement and appeals.
There is a good analysis of the Bill produced by the UK's Open Rights Group so I will not go into more detail about it here: those interested can read that article. I should say though that I do not agree with the Group's contention that the appeal procedures are defective because it would not be open to an internet subscriber to appeal a proposal that he or she should be cut off on the grounds that what was done was not in fact in breach of copyright. The Group reason that the "copyright infringement disputes" subject to appeal comprise a dispute which "relates to an act or omission in relation to a technical obligation or the technical obligations code" and that this does not go to whether there was a breach of copyright in the first place. However it seems to me that what would be appealed would be the cutting-off of the internet supply or the placing of restrictions on the internet supply to the subscriber - that would be the "act in relation to ... the technical obligations code" and that would allow the subscriber to raise the issue of whether the rights of the copyright owner have in fact been infringed, and not just whether in fact file sharing took place. The Bill provides for two levels of appeals. For cases only involving the "initial obligations code" (mainly involving preparation of copyright infringement lists) there will be no second right of appeal from the technical panel to the Appeals Tribunal, but there will be once the possibility of being cut off or having internet access restrictions imposed comes into play through the "technical obligations code".
Nonetheless I think the Bill is subject to criticism on the grounds that these essential protections are left to the codes rather than set out in the Bill itself.
Leaving aside the detail set out in the Open Rights Group analysis, there are four other overview points I would make about the Bill. First we (the internet subscribers) are going to pay for this. The Bill provides for copyright owners wanting to invoke the procedures to contribute to the costs of internet service providers in operating the code, but these are not required by the Bill to be pound for pound. In addition, internet service providers as well as copyright owners can be required to contribute to OFCOM's costs in drawing up the codes, and in preparing reports, which it would have to do both quarterly and annually, about copyright infringement by internet subscribers. This is a form of taxation, to be met in the end by internet subscribers, rather nicely described as a "sharing of costs".
Secondly, although the Bill enables (but does not require) the code to compel a copyright owner to enter into arrangements with an internet service provider regarding the number of copyright infringements the owner can allege against the provider's subscribers within a particular period, there are no sanctions for repeated incorrect or inaccurate claims of infringement leading subscribers to be cut off when they should not be, or to spend the time and effort in appealing when they should not have to do so. In particular, no protection is offered for subscribers against those alleging infringement other than that of appeal. The omens are not good on this: a number of claims of illegal file sharing have been made by media company representatives against people in the United States under different (US federal) legislation where the evidence for this has been shown to be simply wrong or technically deficient, but I also make the more general observation that human nature is such that if overly broad powers are given they will in the end be abused. Even the police are prone to that, as witness the improper use they have been making of sections 44 and 58 of the Terrorism Act 2000 to prevent people taking photographs in public places in a way we would not have thought possible in this ostensibly free country only three or four years ago. If the police feel able to do this, what about distant media companies with zealous middle managers wanting to meet their quota for catching "those criminal file sharing commies", companies which probably aren't even in a UK legal jurisdiction to begin with.
The potential for abuse is further widened by the fact that the Bill provides that the codes may provide that "the number and nature of copyright infringement reports relating to the subscriber may be taken into account for the purposes of any technical measures" (that is, a cutting-off), and that there can be a minimum threshold number of reports before an internet service provider is required to take action as well as a maximum number of infringements that a copyright owner can make. These "copyright infringement reports" are the copyright owner's allegations of infringement, not proven infringements. And any warning to a subscriber sent by virtue of an infringement report does not even need to be sent by post - according to proposed new section 124A(7) of the Communications Act 2003 as inserted by clause 4 of the Bill it would be sufficient if it is sent by e-mail, even though e-mail is known not to be a reliable means of delivery. Within the first year or two of a scheme of this kind coming into force, we will be having our first horror stories of people being cut off the internet where they should not be as a result of the poor practices of those operating the scheme and in particular of the media companies, poor practices which will quite probably be strenuously denied until someone does the public service of leaking some internal documents demonstrating it. I do not think the Bill as yet requires the codes to be robust enough to deal with this.
Thirdly, the cutting-off of a subscriber, or other technical measures, are not necessarily the end of the matter. The internet service provider could be required on application to a court to reveal the name of a subscriber equating to a particular internet address (the numerical internet address given to a computer or router when connecting to the provider's internet service). I do not have a problem with that provided that data protection safeguards are met (and they should be if application has to be made to a court), but it demonstrates that there are other remedies available to an infringed copyright owner apart from cutting a subscriber off. To the credit of the Bill, it does provide in clause 5 a "subscriber identity firewall" which requires an order of the court before actual names can be revealed.
Fourthly, clause 17 of the Bill enables amendment of Parts 1 and 7 of the Copyright, Designs and Patents Act 1988 by order made by statutory instrument subject to affirmative procedure just on the grounds that it is "for the purpose of preventing or reducing the infringement of copyright by means of the internet, if it appears to the Secretary of State appropriate to do so having regard to technological developments that have occurred or are likely to occur". Apart from the fact that this is a grossly excessive power to confer - to change the fundamentals of copyright law as set out in Part 1 of the 1988 Act - it is difficult to see how this could be necessary to give effect to the intentions of clauses 4 to 16 of the Bill. The government's explanation for this extraordinary provision at Second Reading was completely unconvincing and it would be very alarming if this clause were to survive into the Bill as enacted. Let's hope it does not do so.
Tuesday 1 December 2009
The long game
The Scottish government published its white paper on proposals for a referendum on Scottish independence yesterday. Since its publication, most of the political commentariat appear to think that Alex Salmond is on the run, with the recent Labour by-election win in Glasgow (albeit in one of their safest seats in the UK), and with polls showing a small decrease in the amount of enthusiasm in Scotland for independence.
I think this is a misjudgement. Alex Salmond is in this for the long game, and it is significant that the white paper yesterday proposed that only three of the four main options available for the future should be put to the Scottish electorate in a referendum. These three options are:
He probably realises that he is not going to be able to get a Bill with a referendum offering these three options through the Scottish Parliament as at present constituted, but he is no doubt looking beyond that to the Parliament as constituted after the next Scottish elections. No doubt he would be willing, if he had to, to reach "devolution max" and subsequently independence after a period of "Calmanisation", but the clear preference coming from the white paper is to avoid that detour and go straight to "devolution max" where he would be well placed to create severe difficulties for unionist government within the UK leading ultimately to independence.
Devolution max
This option involves remaining within the UK but having control of a wide range of things which are currently reserved matters. People in Scotland would continue to have British nationality and to participate in UK affairs within the realms of defence and foreign affairs, to the budget for which they would presumably contribute, together with what the white papers refers to as "macroeconomic policy" and possibly some social protection and pensions, but aside from that they would set all of their own social priorities and most particularly determine most of their own taxation. On this the opaqueness of the white paper is most marked - one of the main levers of macroeconomic policy for the UK government is taxation. If that is taken away through devolution, the main macroeconomic lever left is the fixing of the Bank of England repo rate (sometimes called the bank rate); but this could not be devolved anyway without Scotland adopting its own currency, or acceding to the Euro (in which case the Scottish government would be subject to the rate fixed by the European Central Bank).
Let us then carry out a thought experiment with a system of "devolution max" of this kind in force which goes down the road that the SNP are charting. Were the Scottish government to become financially autonomous, responsible for raising its own taxation to meet its own expenditure, the UK parliament would only set taxation for the rump of the UK - England, Wales and Northern Ireland. It seems inevitable that members of the UK parliament elected for Scottish constituencies would no longer be able to vote in connection with the fixing of rates of taxes such as income tax and corporation tax applying outside Scotland, to which their constituents would not be subject: were they to do so, it would fly against the constitutional links between taxation and representation (in fact as I have mentioned even the much more modest Calman proposals raise issues concerning this constitutional link), and be grossly unfair to people in the remainder of the UK.
However, if there were to be a UK government dependent on its Scottish members for its majority, we could then be left with a UK government which could only wield a majority on matters of defence and foreign affairs but not on taxation. It could therefore be left unable to progress its policies on anything. It would probably be forced to march its Scottish members through the lobbies to force through taxation measures, and policies in all areas except defence and foreign affairs, which could not apply in Scotland. People in the remainder of the UK, and particularly in England, would probably not stand for it. Constitutional mayhem would result: and the pressure points leading to break-up could well come from England rather than Scotland.
The unionist parties
It is probably for this reason that only the Scottish Liberal Democrats have come out in favour of "devolution max" - or at any rate, Tavish Scott their leader has. Such is the chaotic state of Liberal Democrat policy making that, akin to the debacle over Vince Cable's mansion tax, no attempt has been made by them to address the wider issue of how the remainder of the UK could be governed in a way which would actually work in the event of "devolution max". Thankfully we do not need to spend too much time wringing our hands over this at the UK level as the Liberal Democrats are never going to be elected to government at Westminster to give effect to their policy. However, if they hold the balance of power in the Scottish parliament after the next Scottish elections they may turn out to be the SNP's version of the Bolsheviks' "useful idiots" in terms of assisting in passing a referendum Bill in the Scottish parliament. This surely must be one of Alex Salmond's hopes.
How the Tories would take this on depends on their leader at the time (which might not be David Cameron if the party fails to secure a working majority at the next election). David Cameron is wedded to the union but support for the union amongst the Tories cannot necessarily be assured in the future. A different leader might be open to the siren calls of Scottish fiscal autonomy notwithstanding the constitutional instabilities this would create. The post-Thatcher era has left the Tories as, in effect, an English party, so in that sense they do not have a great deal to lose.
The Labour party have the most at risk from "devolution max". They tread a delicate path requiring them to keep their Labour bases in Scotland and to a lesser extent Wales adequately rewarded on the one hand, and not being seen as an anti-English party on the other hand. "Devolution max" would mean they could stop worrying about dissatisfaction with the Barnett formula, but they show no signs at all of thinking about how to resolve the present constitutional anomalies arising from asymmetrical devolution, which would not leave them well prepared if faced with a situation where they had to deal with the problem of a successful "devolution max" referendum. Electoral dynamics also mean that it is only they (either with a small UK majority on their own part or in a Lib/Lab pact) who could end up in government faced with the constitutional dilemma to which I have referred, and one fears that their first and maybe last reaction would be to put their heads in the sand.
In consequence, neither the Labour party nor (in the short term) the Tories are going to go down the "devolution max" road. Were they to be manoeuvred by Alex Salmond into it, say via the Liberal Democrats in the Scottish parliament, I would not give the union more than a few years to survive. For Alex Salmond, job done.
I think this is a misjudgement. Alex Salmond is in this for the long game, and it is significant that the white paper yesterday proposed that only three of the four main options available for the future should be put to the Scottish electorate in a referendum. These three options are:
- no change
- "devolution max" within the UK (what the white paper refers to as "Full Devolution")
- independence from the UK
He probably realises that he is not going to be able to get a Bill with a referendum offering these three options through the Scottish Parliament as at present constituted, but he is no doubt looking beyond that to the Parliament as constituted after the next Scottish elections. No doubt he would be willing, if he had to, to reach "devolution max" and subsequently independence after a period of "Calmanisation", but the clear preference coming from the white paper is to avoid that detour and go straight to "devolution max" where he would be well placed to create severe difficulties for unionist government within the UK leading ultimately to independence.
Devolution max
This option involves remaining within the UK but having control of a wide range of things which are currently reserved matters. People in Scotland would continue to have British nationality and to participate in UK affairs within the realms of defence and foreign affairs, to the budget for which they would presumably contribute, together with what the white papers refers to as "macroeconomic policy" and possibly some social protection and pensions, but aside from that they would set all of their own social priorities and most particularly determine most of their own taxation. On this the opaqueness of the white paper is most marked - one of the main levers of macroeconomic policy for the UK government is taxation. If that is taken away through devolution, the main macroeconomic lever left is the fixing of the Bank of England repo rate (sometimes called the bank rate); but this could not be devolved anyway without Scotland adopting its own currency, or acceding to the Euro (in which case the Scottish government would be subject to the rate fixed by the European Central Bank).
Let us then carry out a thought experiment with a system of "devolution max" of this kind in force which goes down the road that the SNP are charting. Were the Scottish government to become financially autonomous, responsible for raising its own taxation to meet its own expenditure, the UK parliament would only set taxation for the rump of the UK - England, Wales and Northern Ireland. It seems inevitable that members of the UK parliament elected for Scottish constituencies would no longer be able to vote in connection with the fixing of rates of taxes such as income tax and corporation tax applying outside Scotland, to which their constituents would not be subject: were they to do so, it would fly against the constitutional links between taxation and representation (in fact as I have mentioned even the much more modest Calman proposals raise issues concerning this constitutional link), and be grossly unfair to people in the remainder of the UK.
However, if there were to be a UK government dependent on its Scottish members for its majority, we could then be left with a UK government which could only wield a majority on matters of defence and foreign affairs but not on taxation. It could therefore be left unable to progress its policies on anything. It would probably be forced to march its Scottish members through the lobbies to force through taxation measures, and policies in all areas except defence and foreign affairs, which could not apply in Scotland. People in the remainder of the UK, and particularly in England, would probably not stand for it. Constitutional mayhem would result: and the pressure points leading to break-up could well come from England rather than Scotland.
The unionist parties
It is probably for this reason that only the Scottish Liberal Democrats have come out in favour of "devolution max" - or at any rate, Tavish Scott their leader has. Such is the chaotic state of Liberal Democrat policy making that, akin to the debacle over Vince Cable's mansion tax, no attempt has been made by them to address the wider issue of how the remainder of the UK could be governed in a way which would actually work in the event of "devolution max". Thankfully we do not need to spend too much time wringing our hands over this at the UK level as the Liberal Democrats are never going to be elected to government at Westminster to give effect to their policy. However, if they hold the balance of power in the Scottish parliament after the next Scottish elections they may turn out to be the SNP's version of the Bolsheviks' "useful idiots" in terms of assisting in passing a referendum Bill in the Scottish parliament. This surely must be one of Alex Salmond's hopes.
How the Tories would take this on depends on their leader at the time (which might not be David Cameron if the party fails to secure a working majority at the next election). David Cameron is wedded to the union but support for the union amongst the Tories cannot necessarily be assured in the future. A different leader might be open to the siren calls of Scottish fiscal autonomy notwithstanding the constitutional instabilities this would create. The post-Thatcher era has left the Tories as, in effect, an English party, so in that sense they do not have a great deal to lose.
The Labour party have the most at risk from "devolution max". They tread a delicate path requiring them to keep their Labour bases in Scotland and to a lesser extent Wales adequately rewarded on the one hand, and not being seen as an anti-English party on the other hand. "Devolution max" would mean they could stop worrying about dissatisfaction with the Barnett formula, but they show no signs at all of thinking about how to resolve the present constitutional anomalies arising from asymmetrical devolution, which would not leave them well prepared if faced with a situation where they had to deal with the problem of a successful "devolution max" referendum. Electoral dynamics also mean that it is only they (either with a small UK majority on their own part or in a Lib/Lab pact) who could end up in government faced with the constitutional dilemma to which I have referred, and one fears that their first and maybe last reaction would be to put their heads in the sand.
In consequence, neither the Labour party nor (in the short term) the Tories are going to go down the "devolution max" road. Were they to be manoeuvred by Alex Salmond into it, say via the Liberal Democrats in the Scottish parliament, I would not give the union more than a few years to survive. For Alex Salmond, job done.
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