For those who love football, Liverpool FC's plight, although originally a source of amusement, is now a cause of sympathy from those, such as me, who follow a different colour. (Even though it is perhaps a welcome distraction from Tuesday's events, although in truth England are still in a very strong position and it is too early to wonder where you last put away the panic button.)
From that point of view my last article, about the conflict of laws was quite prescient.
So we have a judgment of Mr Justice Floyd in the High Court in London on Tuesday that it is within the power of the board of directors of Liverpool FC to proceed with a sale of the club (to John Henry who happens to be the current owner of the Boston Red Sox baseball franchise), and a temporary injunction from the District Court in Texas restraining the sale on amazingly lurid allegations stated in Hicks' and Gillett's application. On the grounds that extraordinary claims require extraordinary evidence, and that if true they would certainly have defeated the proceedings in London, those allegations probably require to be treated with considerable suspicion.
Then today we have an injunction from the High Court of England and Wales requiring Hicks and Gillett to withdraw their suit in Texas by 4pm tomorrow.
The main purpose of the temporary injunction in Texas appears to have been to delay the sale beyond the closing date for the Henry deal, which is tomorrow. Whilst the board of Liverpool FC can give a fan's two fingers to the injunction of the District Court in Texas, the American purchaser cannot since contempt of court warrants issued by the court in Texas can be executed in all of the states of the US.
However, it looks doubtful if this delaying tactic will now succeed. First, Henry has indicated that he will extend the closing date until the Texas injunction is discharged. Secondly, Gillett and Hicks are in a very weak position both for geographical reasons - Liverpool, and therefore their investment, is situated in England - and also for legal reasons - a judgment in proceedings to which they were parties and to which they have already submitted to jurisdiction (as in truth they had to) has been issued against them which will be recognised according to the principals of private international law. The board of Liverpool FC are very well advised (Slaughter and May are about the best you can get) and they have attacked this weakness.
Were Hicks and Gillett to fail to meet tomorrow's 4pm deadline given by the High Court in London, any warrant of arrest for contempt of court is unlikely to be executable in Texas, although it would preclude the pair attending further board meetings. Unfortunately for Hicks and Gillett however, any monetary penalty imposed on them, and any damages awarded for losses arising to the club caused by the continuation of the Texas injunction in defiance of the court in London, will be executable against their assets in the UK, and in particular against their interests in Liverpool FC. So they are going to lose on either count.
This regrettable saga does yet again show the folly of the vogue two and three decades ago for clubs to float themselves publicly on the stock exchange, thus making themselves vulnerable to highly "leveraged" take over bids ("highly leveraged" means "heavily indebted" to those who don't like euphemisms). It also again illustrates the dangers of foreign ownership of English football clubs, and of American owners in particular, who don't understand what they are getting into. Let us hope for Liverpool FC that this particular deal is not just jumping from the frying pan into the fire.
On the subject of American sport, what a fine display of bear-down pitching in this week's divisional series of the baseball play offs, particularly by Roy Halladay, Cliff Lee, Tim Lincecum and Derek Lowe, play-off pitching at its absolute best. We still have Halladay, Lee and Lincecum to enjoy in the championship series. My prediction? For the world series, Philadelphia representing the NL and New York representing the AL (but Texas taking them to the last game), and beyond that, too close to call.
Update (Friday 15th October)
Hicks and Gillett complied with the injunction issued by the English court, and apparently the deal with Henry has now been completed. That part of the proceedings now seems to be over, but the pair have indicated they intend to bring, or continue with, a $1billion lawsuit against the other directors of the club and RBS. Given that they bought the club originally for £174m in 2007 and have since done little more than increase the debt, that seems a somewhat preposterous figure, but everything comes big in Texas.
Now there will be disputes about venue no doubt, and whether that should be Dallas or London. If the directors are not resident in the US and do not have assets there, and do not submit to the jurisdiction of the court in Dallas, then they can ignore any judgment of the Dallas court as it would not be enforced in England, and the same would apply to the club itself if they do not have a place of business there. But that luxury would not apply to RBS. No doubt they will apply for proceedings to be removed to London, which is the natural forum for the matter, but American courts do have a tendency to think that there is nothing wrong with telling the rest of the world how to do their business, so that will be the next saga to have played out.
Thursday, 14 October 2010
Friday, 13 August 2010
The Conflict of Laws (Eady v The World)
Every nation state has its own laws, and methods of enforcing them. Most federal countries, and some non-federal ones (such as the United Kingdom), have several versions of these applying in different parts of their territory, forming separate legal jurisdictions.
How these different legal systems interact at the level of civil law (as opposed to criminal law) forms what is known as private international law, also called the conflict of laws. Conflict of laws is perhaps a more accurate description because, as mentioned, conflict issues can arise within a nation state as well as between nation states.
Conflict of Laws
When considering contracts or wrong doing having substantive effects in more than one legal jurisdiction, it is necessary to determine three issues:
1. Which courts have jurisdiction on the matter? This is determined separately for each potential jurisdiction by applying the rules of that jurisdiction, and might be more than one, leading to the phenomenon of "forum shopping".
2. What system of law is to be applied in deciding the case? Again this is determined according to the rules of the court accepting jurisdiction in which the proceedings are brought. It need not be the same as the jurisdiction in which the particular case is tried. For example, a court in England may have jurisdiction in a matter but decide that, on the facts of the case, French law applies. It could be even more complicated than that, and can be self-referential: for example the English court in this example could further decide that under French law it would be decided that English law applied, so making English law the applicable law, a self-referencing called renvoi (sending back).
3. Are the judgments (say, for the payment of money) of the particular court which decides a matter enforceable in other jurisdictions within which the unsuccessful party has assets and so against which the judgment can be satisfied?
In the case of an alleged breach of contract, the contract can specify which courts have jurisdiction and which system of law applies, but in the case of other wrong doing, or in cases where a contract does not specify these things, there are complex rules to determine this, which as mentioned may be different in different jurisdictions. Within federal jurisdictions the rules are generally so far as relevant consistent between the federal entities (so the rules of conflict according to the legal system of the State of New York would generally be reciprocal with those of the legal system of the State of California, and necessarily so in the case of federal law itself). Within all of the European Union other than Denmark, it is decided in accordance with Council Regulation 44/2001.
Likewise, within the United Kingdom, the conflict rules are so far as relevant the same in the legal systems of England and Wales, Scotland and Northern Ireland, and each recognises and will enforce judgments of the courts of the others, notwithstanding that Scottish civil law is in some respects quite different from the common law in Northern Ireland and England and Wales. (The common law in Northern Ireland is to all intents and purposes the same as that in England and Wales unless a statutory provision has decreed otherwise, as indeed is the common law of the Republic of Ireland: to that extent the basic elements of the law of the Republic are substantially closer to those of England and Wales than is the civil law of Scotland.)
Defamation and freedom of speech
One area of tortious liability which can differ markedly between jurisdictions is that of defamation. Defamation law in the jurisdictions within the United Kingdom is more careful of people's reputation (and therefore more restrictive of the freedom to defame and so freedom of speech) than it is in some other countries, and particularly in the United States.
The wording of the 1st Amendment to the US constitution in the Bill of Rights concerning freedom of speech ("Congress shall make no law ... abridging the freedom of speech, or of the press") is not dissimilar in sentiment to Article 10 of the European Convention on Human Rights ("Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers"), which is a restatement of Article 19 of the Universal Declaration of Human Rights adopted by the UN General Council. No legal jurisdiction regards freedom of speech as entirely unfettered: all jurisdictions have some limitations on, say, incitement to violence or the deliberate dissemination of falsehoods. One key difference between jurisdictions is the extent to which either malice (improper motive) is required, or negligence in failing to take reasonable steps to find out whether an utterance is false before making it, in order for defamation proceedings to succeed.
Unlike some legal jurisdictions, in the UK malice or negligence on the part of the defamer need not be proved by the plaintiff in order to succeed in a claim of defamation: malice or improper motive is relevant only to whether certain defences may be defeated, such as the defence of fair comment (comment on matters of public interest which are reasonable statements of opinion based on stated matters of fact which can be shown to be true) or the qualified privilege attracted by "Reynolds" responsible journalism. In the UK, the plaintiff in the first instance need only prove that something was said or published to third parties by the defendant that is materially adverse to her reputation and so defamed her. After that, it is for the defendant to establish her defences (if she can) and the plaintiff to rebut them if such defences are offered.
The SPEECH Act
On Wednesday an Act of the US Congress entitled the Securing the Protection of our Enduring and Established Constitutional Heritage Act of 2010 (otherwise known as the SPEECH Act) came into law. It provides that "a domestic court shall not recognize or enforce a foreign judgment for defamation" unless the foreign law which was applied in giving judgment provides the same protection of freedom of speech and of the press as does US law, or the defamatory act concerned would also have been found defamatory according to the law of the US State in question (including under the 1st Amendment of the US Constitution).
This legislation of Congress was aimed at the United Kingdom, and Eady J in particular. Mr Justice Eady has become the high priest in English law of those arguing the cause of protecting reputation and privacy above most other considerations. The case which brought him into conflict with the US constitution, via private international law, was Mahfouz v Ehrenfeld. Dr Rachel Ehrenfeld, who is a US citizen and resident in the State of New York, wrote a book entitled "Funding Evil", which makes a number of claims about how international terrorism is funded.
A Mr Mahfouz and two of his sons were alleged in the book to be involved in financing terrorism (a matter which has never been proved in court and indeed, as mentioned below, in other legal proceedings has been accepted as being false), and they sued Ehrenfeld for libel in the High Court of England and Wales. They were resident in Saudi Arabia at the time and Saudi citizens, although they appear also to have acquired Irish citizenship. The book was not explicitly offered for sale by sellers within the United Kingdom, but 23 copies had been purchased by people in England from online booksellers situated in the US and a worldwide audience presumed to include people in England and Wales had visited an ABC news website in the US containing the first chapter of the book which included the allegations. That was sufficient to found jurisdiction within England according to English law. Ehrenfeld, not surprisingly, chose not to appear or defend herself, taking the view that being a US citizen and a resident of the State of New York selling a book marketed in the US, the English High Court could mind its own business.
One can speculate that the English courts had been chosen by Mr Mahfouz notwithstanding that vastly more copies of the book had been disseminated in the United States because, as mentioned, English law gives less scope to defame in public comment than does the 1st Amendment and, as importantly, by placing the burden of proof of the defence of fair comment or responsible journalism on the defendant, allows default judgments to be issued more readily; and also as a matter of course English courts normally award lawyers' fees to the successful party, whereas jurisdictions in the US generally do not. The Mahfouz's lawyers gave as their reasoning for their choice of venue that "they maintain residences, transact business and have reputations to protect in [the jurisdiction of England and Wales]", which is a fair point particularly as they did not appear to have any business or other interests in New York state, but hardly explains why proceedings were not also brought in New York state for an injunction in order to stop the flow at source.
Eady J made a default judgment as (having decided that the English courts had jurisdiction by virtue of the 23 copies finding their way to England) he was more or less obliged to do by way of a declaration of falsity on an undefended suit with a competent set of affidavits on the plaintiff's side, so one cannot necessarily criticise him for that. However, the further remedies he saw fit to impose appear to have been the point at which he overdid it. He awarded each plaintiff £10,000 (the maximum allowed on summary default judgment) and awarded £114,000 costs, when nominal damages and no legal costs may have been the choice of many other judges faced with forum shopping of this kind on events occurring almost entirely in the US. More oddly, he chose to continue an interim injunction prohibiting further copies of the defamatory material reaching England and Wales which, given the international nature of the internet and of online sellers, would have been impossible to comply with unless Ms Ehrenfeld and her publisher (Bonus Books inc) were to have retained the power to terminate or modify any sale agreements with US bookshops (about which no inquiry by the judge appears to have been made), and would have been incapable of complete achievement even if they had, particularly if suppression would have been unconstitutional in the US. Even if the injunction had been capable of being complied with and not unconstitutional, it would simply have been unenforceable in the US and so hypothetical. The correct remedy would have been against any UK importer, but of course there was none.
Yes, apart perhaps from the over-broad (and in effect unenforceable) injunction, Eady J had the power to do what he did (under section 8 of the Defamation Act 1996) but more regard, in determining remedies, to the kind of considerations which would have informed a decision on venue would have result in a more sane set of orders. Indeed, to have given weight to the fact that there were numerous hits on a US news website situated only in the US (ABC News) is I suggest absurd.
The other side of the argument
So far as concerns Mr Mahfouz, it should be noted on a point of fairness that he has succeeded amongst other matters in France in defamation proceedings against a publication entitled "Le Livre Noir de la CIA" which alleged amongst other matters that he was involved in funding terrorism, and has obtained an apology and a financial settlement from the University of Cambridge Press in respect of similar claims made in a book "Alms for Jihad" published in the UK, from the Mail on Sunday in respect an article in that paper, and from Pluto Books in respect of a book they published, which clearly were proper for the jurisdictions of France and of England and Wales respectively.
From his point of view, if your business interests and reputation are being damaged, you take your remedies where you can find them, which is what he has done. It must also be exceedingly tiresome to be subject to claims that you are involved in financing terrorism if in fact you are not, and if your charitable giving is represented as supporting terrorism. He has also donated all or part of his award in these cases to UNICEF.
I am not particularly opposed to the laws of defamation as applying in defamation proceedings; and Dr Ehrenfeld could have opposed England and Wales as the venue at the outset (but probably had good cause not to, as it would have conceded jurisdiction if that opposition had been decided against her by Eady J given his reputation and previous involvement in some of the other cases brought by Mr Mahfouz referred to above, and of course also cost her not insignificant sums of money). However in a world of world-wide electronic communication, some sanity has to prevail in the remedies awarded, particularly on default judgments. It is that point which the SPEECH Act is intended to address, but which one might have hoped with the application of a little more common sense would not have been necessary1.
Forum shopping more generally
Lest anyone think that the UK is particularly blameworthy for exporting its version of defamation law to the world, it should be noted that, leaving defamation out of account, the US, with its litigation friendly culture, is by far the greatest haven of forum shopping, to sometimes remarkable degrees. Interested readers can consider the litigation involving Spamhaus LLC (an anti-spam email organisation), under which an Illinois court took upon itself the right to determine a case involving a company registered under English law with no offices or business activities in any part of Illinois, or indeed in any part of the the US. It became so serious that in a subsequent partly successful appeal the US government put to the court its own view on points of law on domain registration as an interested third party, because if the threatened decision on this had stood (an order of the court requiring ICANN to cancel Spamhaus's internet domain registration), international governments would no longer have accepted the function of ICANN in issuing domain names: that would have been transferred to the International Telecommunications Union, whether the US had liked it or not.
US "fishing expedition" type discovery, coupled with inattention to jurisdictional issues by US courts, has also led to bogus lawsuits being brought in the US for the purpose of acquiring evidence for proceedings elsewhere, so as to require the US Supreme Court to issue guidance on the matter.
____________________________________________________
1 On another decision of Eady J, this one overturned on appeal, see this article. Eady J's idiosyncratic views on the responsible journalism defence also received an unfavourable review by Lord Hoffman in another case, in paragraph 57 of Lord Hoffman's opinion.
How these different legal systems interact at the level of civil law (as opposed to criminal law) forms what is known as private international law, also called the conflict of laws. Conflict of laws is perhaps a more accurate description because, as mentioned, conflict issues can arise within a nation state as well as between nation states.
Conflict of Laws
When considering contracts or wrong doing having substantive effects in more than one legal jurisdiction, it is necessary to determine three issues:
1. Which courts have jurisdiction on the matter? This is determined separately for each potential jurisdiction by applying the rules of that jurisdiction, and might be more than one, leading to the phenomenon of "forum shopping".
2. What system of law is to be applied in deciding the case? Again this is determined according to the rules of the court accepting jurisdiction in which the proceedings are brought. It need not be the same as the jurisdiction in which the particular case is tried. For example, a court in England may have jurisdiction in a matter but decide that, on the facts of the case, French law applies. It could be even more complicated than that, and can be self-referential: for example the English court in this example could further decide that under French law it would be decided that English law applied, so making English law the applicable law, a self-referencing called renvoi (sending back).
3. Are the judgments (say, for the payment of money) of the particular court which decides a matter enforceable in other jurisdictions within which the unsuccessful party has assets and so against which the judgment can be satisfied?
In the case of an alleged breach of contract, the contract can specify which courts have jurisdiction and which system of law applies, but in the case of other wrong doing, or in cases where a contract does not specify these things, there are complex rules to determine this, which as mentioned may be different in different jurisdictions. Within federal jurisdictions the rules are generally so far as relevant consistent between the federal entities (so the rules of conflict according to the legal system of the State of New York would generally be reciprocal with those of the legal system of the State of California, and necessarily so in the case of federal law itself). Within all of the European Union other than Denmark, it is decided in accordance with Council Regulation 44/2001.
Likewise, within the United Kingdom, the conflict rules are so far as relevant the same in the legal systems of England and Wales, Scotland and Northern Ireland, and each recognises and will enforce judgments of the courts of the others, notwithstanding that Scottish civil law is in some respects quite different from the common law in Northern Ireland and England and Wales. (The common law in Northern Ireland is to all intents and purposes the same as that in England and Wales unless a statutory provision has decreed otherwise, as indeed is the common law of the Republic of Ireland: to that extent the basic elements of the law of the Republic are substantially closer to those of England and Wales than is the civil law of Scotland.)
Defamation and freedom of speech
One area of tortious liability which can differ markedly between jurisdictions is that of defamation. Defamation law in the jurisdictions within the United Kingdom is more careful of people's reputation (and therefore more restrictive of the freedom to defame and so freedom of speech) than it is in some other countries, and particularly in the United States.
The wording of the 1st Amendment to the US constitution in the Bill of Rights concerning freedom of speech ("Congress shall make no law ... abridging the freedom of speech, or of the press") is not dissimilar in sentiment to Article 10 of the European Convention on Human Rights ("Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers"), which is a restatement of Article 19 of the Universal Declaration of Human Rights adopted by the UN General Council. No legal jurisdiction regards freedom of speech as entirely unfettered: all jurisdictions have some limitations on, say, incitement to violence or the deliberate dissemination of falsehoods. One key difference between jurisdictions is the extent to which either malice (improper motive) is required, or negligence in failing to take reasonable steps to find out whether an utterance is false before making it, in order for defamation proceedings to succeed.
Unlike some legal jurisdictions, in the UK malice or negligence on the part of the defamer need not be proved by the plaintiff in order to succeed in a claim of defamation: malice or improper motive is relevant only to whether certain defences may be defeated, such as the defence of fair comment (comment on matters of public interest which are reasonable statements of opinion based on stated matters of fact which can be shown to be true) or the qualified privilege attracted by "Reynolds" responsible journalism. In the UK, the plaintiff in the first instance need only prove that something was said or published to third parties by the defendant that is materially adverse to her reputation and so defamed her. After that, it is for the defendant to establish her defences (if she can) and the plaintiff to rebut them if such defences are offered.
The SPEECH Act
On Wednesday an Act of the US Congress entitled the Securing the Protection of our Enduring and Established Constitutional Heritage Act of 2010 (otherwise known as the SPEECH Act) came into law. It provides that "a domestic court shall not recognize or enforce a foreign judgment for defamation" unless the foreign law which was applied in giving judgment provides the same protection of freedom of speech and of the press as does US law, or the defamatory act concerned would also have been found defamatory according to the law of the US State in question (including under the 1st Amendment of the US Constitution).
This legislation of Congress was aimed at the United Kingdom, and Eady J in particular. Mr Justice Eady has become the high priest in English law of those arguing the cause of protecting reputation and privacy above most other considerations. The case which brought him into conflict with the US constitution, via private international law, was Mahfouz v Ehrenfeld. Dr Rachel Ehrenfeld, who is a US citizen and resident in the State of New York, wrote a book entitled "Funding Evil", which makes a number of claims about how international terrorism is funded.
A Mr Mahfouz and two of his sons were alleged in the book to be involved in financing terrorism (a matter which has never been proved in court and indeed, as mentioned below, in other legal proceedings has been accepted as being false), and they sued Ehrenfeld for libel in the High Court of England and Wales. They were resident in Saudi Arabia at the time and Saudi citizens, although they appear also to have acquired Irish citizenship. The book was not explicitly offered for sale by sellers within the United Kingdom, but 23 copies had been purchased by people in England from online booksellers situated in the US and a worldwide audience presumed to include people in England and Wales had visited an ABC news website in the US containing the first chapter of the book which included the allegations. That was sufficient to found jurisdiction within England according to English law. Ehrenfeld, not surprisingly, chose not to appear or defend herself, taking the view that being a US citizen and a resident of the State of New York selling a book marketed in the US, the English High Court could mind its own business.
One can speculate that the English courts had been chosen by Mr Mahfouz notwithstanding that vastly more copies of the book had been disseminated in the United States because, as mentioned, English law gives less scope to defame in public comment than does the 1st Amendment and, as importantly, by placing the burden of proof of the defence of fair comment or responsible journalism on the defendant, allows default judgments to be issued more readily; and also as a matter of course English courts normally award lawyers' fees to the successful party, whereas jurisdictions in the US generally do not. The Mahfouz's lawyers gave as their reasoning for their choice of venue that "they maintain residences, transact business and have reputations to protect in [the jurisdiction of England and Wales]", which is a fair point particularly as they did not appear to have any business or other interests in New York state, but hardly explains why proceedings were not also brought in New York state for an injunction in order to stop the flow at source.
Eady J made a default judgment as (having decided that the English courts had jurisdiction by virtue of the 23 copies finding their way to England) he was more or less obliged to do by way of a declaration of falsity on an undefended suit with a competent set of affidavits on the plaintiff's side, so one cannot necessarily criticise him for that. However, the further remedies he saw fit to impose appear to have been the point at which he overdid it. He awarded each plaintiff £10,000 (the maximum allowed on summary default judgment) and awarded £114,000 costs, when nominal damages and no legal costs may have been the choice of many other judges faced with forum shopping of this kind on events occurring almost entirely in the US. More oddly, he chose to continue an interim injunction prohibiting further copies of the defamatory material reaching England and Wales which, given the international nature of the internet and of online sellers, would have been impossible to comply with unless Ms Ehrenfeld and her publisher (Bonus Books inc) were to have retained the power to terminate or modify any sale agreements with US bookshops (about which no inquiry by the judge appears to have been made), and would have been incapable of complete achievement even if they had, particularly if suppression would have been unconstitutional in the US. Even if the injunction had been capable of being complied with and not unconstitutional, it would simply have been unenforceable in the US and so hypothetical. The correct remedy would have been against any UK importer, but of course there was none.
Yes, apart perhaps from the over-broad (and in effect unenforceable) injunction, Eady J had the power to do what he did (under section 8 of the Defamation Act 1996) but more regard, in determining remedies, to the kind of considerations which would have informed a decision on venue would have result in a more sane set of orders. Indeed, to have given weight to the fact that there were numerous hits on a US news website situated only in the US (ABC News) is I suggest absurd.
The other side of the argument
So far as concerns Mr Mahfouz, it should be noted on a point of fairness that he has succeeded amongst other matters in France in defamation proceedings against a publication entitled "Le Livre Noir de la CIA" which alleged amongst other matters that he was involved in funding terrorism, and has obtained an apology and a financial settlement from the University of Cambridge Press in respect of similar claims made in a book "Alms for Jihad" published in the UK, from the Mail on Sunday in respect an article in that paper, and from Pluto Books in respect of a book they published, which clearly were proper for the jurisdictions of France and of England and Wales respectively.
From his point of view, if your business interests and reputation are being damaged, you take your remedies where you can find them, which is what he has done. It must also be exceedingly tiresome to be subject to claims that you are involved in financing terrorism if in fact you are not, and if your charitable giving is represented as supporting terrorism. He has also donated all or part of his award in these cases to UNICEF.
I am not particularly opposed to the laws of defamation as applying in defamation proceedings; and Dr Ehrenfeld could have opposed England and Wales as the venue at the outset (but probably had good cause not to, as it would have conceded jurisdiction if that opposition had been decided against her by Eady J given his reputation and previous involvement in some of the other cases brought by Mr Mahfouz referred to above, and of course also cost her not insignificant sums of money). However in a world of world-wide electronic communication, some sanity has to prevail in the remedies awarded, particularly on default judgments. It is that point which the SPEECH Act is intended to address, but which one might have hoped with the application of a little more common sense would not have been necessary1.
Forum shopping more generally
Lest anyone think that the UK is particularly blameworthy for exporting its version of defamation law to the world, it should be noted that, leaving defamation out of account, the US, with its litigation friendly culture, is by far the greatest haven of forum shopping, to sometimes remarkable degrees. Interested readers can consider the litigation involving Spamhaus LLC (an anti-spam email organisation), under which an Illinois court took upon itself the right to determine a case involving a company registered under English law with no offices or business activities in any part of Illinois, or indeed in any part of the the US. It became so serious that in a subsequent partly successful appeal the US government put to the court its own view on points of law on domain registration as an interested third party, because if the threatened decision on this had stood (an order of the court requiring ICANN to cancel Spamhaus's internet domain registration), international governments would no longer have accepted the function of ICANN in issuing domain names: that would have been transferred to the International Telecommunications Union, whether the US had liked it or not.
US "fishing expedition" type discovery, coupled with inattention to jurisdictional issues by US courts, has also led to bogus lawsuits being brought in the US for the purpose of acquiring evidence for proceedings elsewhere, so as to require the US Supreme Court to issue guidance on the matter.
____________________________________________________
1 On another decision of Eady J, this one overturned on appeal, see this article. Eady J's idiosyncratic views on the responsible journalism defence also received an unfavourable review by Lord Hoffman in another case, in paragraph 57 of Lord Hoffman's opinion.
Tuesday, 13 July 2010
The Final Holtham Commission Report
The final report of the Welsh Assembly's Independent Commission on Funding and Finance for Wales (the Holtham Commission) has been out for a week now, but was well trailed before then. I have refrained from commenting on it until having an opportunity to read it.
It follows on from its first report this time last year, and in view of the first report's themes, the conclusions and recommendations in the final report should come as no surprise. It's three main proposals are the introduction of a needs based block grant system for the UK to replace the Barnett formula; devolved income tax and other tax raising powers within Wales; and borrowing powers for the Welsh government and assembly.
This article does not deal with borrowing powers.
Needs based block grant
I will not say much about block grant and the Barnett formula, because I have commented on it before in the context of the report of the Richards Committee and on other occasions.
My prediction has always been that any government is going to struggle with the replacement of the Barnett formula, because a needs based formula would require reducing the Scottish block grant. Well in theory it wouldn't - the present Barnett system for Scotland could be retained and a needs based grant introduced for Wales - but the idea that those in England can always expect the worst outcome for them in order to further the interests of the devolved administrations may result in another (although more peaceable) Pilgrimage of Grace descending on London from the north of England, and this time perhaps from the south as well. (Although at first mainly to do with religion, in the Pilgrimage's second phase, feelings boiled over into insurrection partly because of fears of new taxes and economic favouritism and not just a love of the Old Church.)
There is also the problem of defining need. The Holtham Commission's proposals in its first report go to some pains to explain how this can be done, but different parts of the UK (and in particular those in England who have no one explicitly batting for them) are likely to harbour the suspicion that a needs criterion which is at heart subjective, whatever outward system of measurement may be devised for it, is being engineered against them.
Certainly the coalition seems to have put it on the back burner and I don't think the latest Holtham report is going to change this.
Devolved income tax
It is useful to compare the Calman Commission proposals on devolved taxation for Scotland with those of the Holtham Commission for Wales. Holtham can be thought of as a development of the Calman proposals. It is rather more "Calman-revised" rather than "Calman-plus".
In summary, under Calman the UK rate of income tax less 10% would apply in Scotland with a commensurate reduction in UK block grant (whether that grant comes from the Barnett formula or something else). The Scottish Parliament could then decide how much of the missing 10%, or more, is to be paid by Scottish tax payers. In effect they could set the income tax rate applying in Scotland to anything they want provided it is not more than 10% below the UK rate (and so either keep or suffer the difference), but cannot alter tax bands or differentials between bands. As well as tax bands and differentials remaining in UK government hands, so would the income thresholds for them, and allowances.
Under the Holtham Commission proposals, 50% of UK tax rates in each tax band would apply in Wales. The Welsh Assembly would then decide how much of the missing 50% in each band (or more) is to paid by Welsh tax payers, and could decide different rates for different bands (so they could decide to make Welsh tax less progressive or more progressive than UK tax), as long as the rates fixed by the Assembly are within 3% of the UK rate for the band. They could not alter the thresholds applying to each band, nor allowances.
Holtham also specifically deals with the key issue of how UK and Welsh growth would interconnect. The offset against the UK block grant contribution representing the 50% of income tax in Wales which is henceforward to be managed by the devolved institutions would be determined once and for all on the new system coming into effect, and would thence be indexed by reference to UK-wide growth of the tax base. So the Welsh Assembly and government would be rewarded or penalised for their own performance in financial management to the extent of the income tax levied in respect of that "missing" 50%. Something similar did not explicitly form part of Calman, and has since been one of the criticisms of the Calman report. However the Holtham Commission's proposal on this also has its consequences, which I deal with further towards the end of this article.
This is an interesting but odd mixture of concepts. Ostensibly 50% of income tax is to be "devolved", but so far as concerns rates of taxation it is only in fact devolved to the extent that the tax must be within 3% of the UK rate, so as a description this is somewhat misleading. This 50% really determines the amount of Welsh tax-take which is to be directly available to the Welsh Assembly and Government as a link to the economic performance of Wales.
It is interesting to see the report's reasoning behind enabling the Assembly to set different rates between tax bands. The example given in the report concerned higher rate payers migrating to England if they would otherwise be hit by the Assembly increasing the basic rate of tax, given the close proximity of most of Wales to England and that much of the tax base comes from the border areas of Wales: Holtham wants to allow less progressive taxation in Wales, which will surely be a difficult sell politically. (Holtham is persuaded by the "Laffer curve" for higher rates of income tax in areas where taxpayer mobility is a significant factor, under which increasing higher rates beyond the Laffer maximum can result in a reduction of the tax taken. It implies that those only on the basic rate of income tax are a "captive audience" unlikely to move to England if that rate is raised above the rate set by the UK Parliament for England and Northern Ireland.)
Other tax matters
Holtham also recommends consideration should be given to devolving rates of corporation tax, but this is complicated because of EU rules on state aid.
As in the case of Calman, it recommends that stamp duty land tax should be wholly devolved, and (unlike Calman) capital gains tax on property and land. By "property" it appears to mean things affixed to land rather than chattels or non-physical property. It also recommends as in the case of Calman that landfill tax and aggregates levy should be devolved.
The wider picture: (1) need and the block grant
I said I would comment further on how the block grant would work. The use of need as the determining factor in block grant allocation could be seen as the enemy of fiscal responsibility, the reinforcing of which the report states is one its aims. It means that if the devolved administration fails to administer the economy well and economic performance diminishes, then the UK tax payer is, through a needs based formula, there at least in part to soak up the consequences of the failure: so there is a contradiction at work here. The same could also of course be said about the benefits system, but few would want to argue against UK-wide benefits unless the UK were to be split into entirely separate economic units.
The report's recommendations would bring about some linkage between good financial management and an appropriate reward for the devolved administration, by freezing the 50% "offset" against the needs-based block grant to which I have referred, and then indexing it against the UK-wide tax base.
Of course a fixed formula such as the Barnett formula, with the application of local taxation on top of that and the same frozen offset, would reward performance just as well, leaving the workings of the Barnett formula and the UK benefit system as the UK's response to need. Any system may have to be rebased from time to time, even one following the Holtham approach. One could argue that Barnett can be rebased now on a one-off needs basis once devolved taxation is first introduced, with occasional rebasing as required thereafter, rather than making annual arguments about relative need between the constituent parts of the UK a permanent feature of the future government of the UK.
The wider picture: (2) the UK dimension
On its economic analysis, and its consideration of how that plays out in relation to devolution, the Holtham Commission is very thorough. It also makes much more of a nod to how its proposals affect the integrity of the UK as a whole than does Calman. It comments that "We have tried hard, both in this report and in our previous publications, to avoid any suspicion of special pleading", with a whole section elsewhere devoted to "The dimensions of the union between Wales and the rest of the UK". Although the latter section of the report considers, amongst other matters, what it describes as "negative spillovers", it does so only in the fields of economics and tax competition. It does not deal with the wider political consequences, nor dare I say it, the wider legal-constitutional aspects.
I am sure regular readers will have realised that this is still an area which worries me.
In whatever way the relationship between achievement/reward and devolved taxation may be managed, the outcome of these proposals would be that Scottish income tax would be set by the Scottish Parliament provided it is at a level not more than 10% below the UK rate, and Welsh income tax would be set by the Welsh Assembly provided it is within 3% of the UK rates. Since no Scottish Parliament is ever going to wish to set the income tax rate applying in Scotland which is at a level more than 10% below UK rates - it would be completely unrealistic unless there were to be fiscal autonomy giving rise to a wholesale redesign of the tax system in Scotland - the net effect is that the Scottish Parliament would henceforward set the rates of income tax applying in Scotland. The Welsh Assembly would be subject to the plus or minus 3% cap as against UK rates to which I have referred, should the Holtham recommendation on this be accepted, but any thought that an Assembly might want to set it outside those bounds anyway is somewhat illusory. The devolved institutions would also set their own rates of landfill tax and aggregates duty, and might in due course have areas of capital gains tax for which they set the rate.
Under these proposals, the other remaining links with UK rates of income tax would consist only of the thresholds applying to each income tax band (in effect, the "definitions" of the bands) and, for Calman and Scotland only, the differentials between these bands. This represents a substantial deepening of the West Lothian Question, given the constitutional link between representation and taxation. If income tax rates applying in Wales or Scotland were to be less than those in England, and the higher rates in England were only to be carried by virtue of the votes of Scottish and Welsh members, it is easy to see the trouble that this might cause.
In short, the present arrangement under which the devolved institutions are responsible for spending large sums of money from the UK Treasury whilst having limited responsibility for raising it (and none at all in Wales) can and should be viewed as an anomaly. However, is it an improvement to solve that anomaly by making another one worse, and is the union made more secure by doing so?
The answer to that may be yes, but this is a debate which has been completely lacking so far, yet one which needs to be had, and which will come back to bite us in due course if we don't.
----------------------------------------
Update: An exchange of comments made on this article has led me to the conclusion that, as far as income tax is concerned, the Calman proposals and Holtham proposals do not significantly worsen the West Lothian question (although I still think eyebrows would be raised if higher rates were to exist in England only by virtue of the votes of members for Welsh and Scottish constituencies). To see why, it is necessary to think in big and implausible numbers. Let us say that the Westminster Parliament were to decide that income tax should go up by 5%, and the Scottish Parliament were to decide not to follow this but instead to keep rates in Scotland as they are. They would be entitled to do this, but would take a significant revenue hit. Only the top 5% of income tax they set would supplement the block grant, rather than 10%, so if they wanted to make up the difference they would have to think about raising local taxation (eg through non-domestic rates or domestic local taxation) or finding the money in some other way.
Of course, for taxes which are to be wholly devolved, such as landfill tax and stamp duty land tax, the West Lothian question does apply in full force, but these are not taxes likely to start pulses racing (although interestingly it was stamp duty which was one of the issues which finally drove the American colonies to rebellion).
It follows on from its first report this time last year, and in view of the first report's themes, the conclusions and recommendations in the final report should come as no surprise. It's three main proposals are the introduction of a needs based block grant system for the UK to replace the Barnett formula; devolved income tax and other tax raising powers within Wales; and borrowing powers for the Welsh government and assembly.
This article does not deal with borrowing powers.
Needs based block grant
I will not say much about block grant and the Barnett formula, because I have commented on it before in the context of the report of the Richards Committee and on other occasions.
My prediction has always been that any government is going to struggle with the replacement of the Barnett formula, because a needs based formula would require reducing the Scottish block grant. Well in theory it wouldn't - the present Barnett system for Scotland could be retained and a needs based grant introduced for Wales - but the idea that those in England can always expect the worst outcome for them in order to further the interests of the devolved administrations may result in another (although more peaceable) Pilgrimage of Grace descending on London from the north of England, and this time perhaps from the south as well. (Although at first mainly to do with religion, in the Pilgrimage's second phase, feelings boiled over into insurrection partly because of fears of new taxes and economic favouritism and not just a love of the Old Church.)
There is also the problem of defining need. The Holtham Commission's proposals in its first report go to some pains to explain how this can be done, but different parts of the UK (and in particular those in England who have no one explicitly batting for them) are likely to harbour the suspicion that a needs criterion which is at heart subjective, whatever outward system of measurement may be devised for it, is being engineered against them.
Certainly the coalition seems to have put it on the back burner and I don't think the latest Holtham report is going to change this.
Devolved income tax
It is useful to compare the Calman Commission proposals on devolved taxation for Scotland with those of the Holtham Commission for Wales. Holtham can be thought of as a development of the Calman proposals. It is rather more "Calman-revised" rather than "Calman-plus".
In summary, under Calman the UK rate of income tax less 10% would apply in Scotland with a commensurate reduction in UK block grant (whether that grant comes from the Barnett formula or something else). The Scottish Parliament could then decide how much of the missing 10%, or more, is to be paid by Scottish tax payers. In effect they could set the income tax rate applying in Scotland to anything they want provided it is not more than 10% below the UK rate (and so either keep or suffer the difference), but cannot alter tax bands or differentials between bands. As well as tax bands and differentials remaining in UK government hands, so would the income thresholds for them, and allowances.
Under the Holtham Commission proposals, 50% of UK tax rates in each tax band would apply in Wales. The Welsh Assembly would then decide how much of the missing 50% in each band (or more) is to paid by Welsh tax payers, and could decide different rates for different bands (so they could decide to make Welsh tax less progressive or more progressive than UK tax), as long as the rates fixed by the Assembly are within 3% of the UK rate for the band. They could not alter the thresholds applying to each band, nor allowances.
Holtham also specifically deals with the key issue of how UK and Welsh growth would interconnect. The offset against the UK block grant contribution representing the 50% of income tax in Wales which is henceforward to be managed by the devolved institutions would be determined once and for all on the new system coming into effect, and would thence be indexed by reference to UK-wide growth of the tax base. So the Welsh Assembly and government would be rewarded or penalised for their own performance in financial management to the extent of the income tax levied in respect of that "missing" 50%. Something similar did not explicitly form part of Calman, and has since been one of the criticisms of the Calman report. However the Holtham Commission's proposal on this also has its consequences, which I deal with further towards the end of this article.
This is an interesting but odd mixture of concepts. Ostensibly 50% of income tax is to be "devolved", but so far as concerns rates of taxation it is only in fact devolved to the extent that the tax must be within 3% of the UK rate, so as a description this is somewhat misleading. This 50% really determines the amount of Welsh tax-take which is to be directly available to the Welsh Assembly and Government as a link to the economic performance of Wales.
It is interesting to see the report's reasoning behind enabling the Assembly to set different rates between tax bands. The example given in the report concerned higher rate payers migrating to England if they would otherwise be hit by the Assembly increasing the basic rate of tax, given the close proximity of most of Wales to England and that much of the tax base comes from the border areas of Wales: Holtham wants to allow less progressive taxation in Wales, which will surely be a difficult sell politically. (Holtham is persuaded by the "Laffer curve" for higher rates of income tax in areas where taxpayer mobility is a significant factor, under which increasing higher rates beyond the Laffer maximum can result in a reduction of the tax taken. It implies that those only on the basic rate of income tax are a "captive audience" unlikely to move to England if that rate is raised above the rate set by the UK Parliament for England and Northern Ireland.)
Other tax matters
Holtham also recommends consideration should be given to devolving rates of corporation tax, but this is complicated because of EU rules on state aid.
As in the case of Calman, it recommends that stamp duty land tax should be wholly devolved, and (unlike Calman) capital gains tax on property and land. By "property" it appears to mean things affixed to land rather than chattels or non-physical property. It also recommends as in the case of Calman that landfill tax and aggregates levy should be devolved.
The wider picture: (1) need and the block grant
I said I would comment further on how the block grant would work. The use of need as the determining factor in block grant allocation could be seen as the enemy of fiscal responsibility, the reinforcing of which the report states is one its aims. It means that if the devolved administration fails to administer the economy well and economic performance diminishes, then the UK tax payer is, through a needs based formula, there at least in part to soak up the consequences of the failure: so there is a contradiction at work here. The same could also of course be said about the benefits system, but few would want to argue against UK-wide benefits unless the UK were to be split into entirely separate economic units.
The report's recommendations would bring about some linkage between good financial management and an appropriate reward for the devolved administration, by freezing the 50% "offset" against the needs-based block grant to which I have referred, and then indexing it against the UK-wide tax base.
Of course a fixed formula such as the Barnett formula, with the application of local taxation on top of that and the same frozen offset, would reward performance just as well, leaving the workings of the Barnett formula and the UK benefit system as the UK's response to need. Any system may have to be rebased from time to time, even one following the Holtham approach. One could argue that Barnett can be rebased now on a one-off needs basis once devolved taxation is first introduced, with occasional rebasing as required thereafter, rather than making annual arguments about relative need between the constituent parts of the UK a permanent feature of the future government of the UK.
The wider picture: (2) the UK dimension
On its economic analysis, and its consideration of how that plays out in relation to devolution, the Holtham Commission is very thorough. It also makes much more of a nod to how its proposals affect the integrity of the UK as a whole than does Calman. It comments that "We have tried hard, both in this report and in our previous publications, to avoid any suspicion of special pleading", with a whole section elsewhere devoted to "The dimensions of the union between Wales and the rest of the UK". Although the latter section of the report considers, amongst other matters, what it describes as "negative spillovers", it does so only in the fields of economics and tax competition. It does not deal with the wider political consequences, nor dare I say it, the wider legal-constitutional aspects.
I am sure regular readers will have realised that this is still an area which worries me.
In whatever way the relationship between achievement/reward and devolved taxation may be managed, the outcome of these proposals would be that Scottish income tax would be set by the Scottish Parliament provided it is at a level not more than 10% below the UK rate, and Welsh income tax would be set by the Welsh Assembly provided it is within 3% of the UK rates. Since no Scottish Parliament is ever going to wish to set the income tax rate applying in Scotland which is at a level more than 10% below UK rates - it would be completely unrealistic unless there were to be fiscal autonomy giving rise to a wholesale redesign of the tax system in Scotland - the net effect is that the Scottish Parliament would henceforward set the rates of income tax applying in Scotland. The Welsh Assembly would be subject to the plus or minus 3% cap as against UK rates to which I have referred, should the Holtham recommendation on this be accepted, but any thought that an Assembly might want to set it outside those bounds anyway is somewhat illusory. The devolved institutions would also set their own rates of landfill tax and aggregates duty, and might in due course have areas of capital gains tax for which they set the rate.
Under these proposals, the other remaining links with UK rates of income tax would consist only of the thresholds applying to each income tax band (in effect, the "definitions" of the bands) and, for Calman and Scotland only, the differentials between these bands. This represents a substantial deepening of the West Lothian Question, given the constitutional link between representation and taxation. If income tax rates applying in Wales or Scotland were to be less than those in England, and the higher rates in England were only to be carried by virtue of the votes of Scottish and Welsh members, it is easy to see the trouble that this might cause.
In short, the present arrangement under which the devolved institutions are responsible for spending large sums of money from the UK Treasury whilst having limited responsibility for raising it (and none at all in Wales) can and should be viewed as an anomaly. However, is it an improvement to solve that anomaly by making another one worse, and is the union made more secure by doing so?
The answer to that may be yes, but this is a debate which has been completely lacking so far, yet one which needs to be had, and which will come back to bite us in due course if we don't.
----------------------------------------
Update: An exchange of comments made on this article has led me to the conclusion that, as far as income tax is concerned, the Calman proposals and Holtham proposals do not significantly worsen the West Lothian question (although I still think eyebrows would be raised if higher rates were to exist in England only by virtue of the votes of members for Welsh and Scottish constituencies). To see why, it is necessary to think in big and implausible numbers. Let us say that the Westminster Parliament were to decide that income tax should go up by 5%, and the Scottish Parliament were to decide not to follow this but instead to keep rates in Scotland as they are. They would be entitled to do this, but would take a significant revenue hit. Only the top 5% of income tax they set would supplement the block grant, rather than 10%, so if they wanted to make up the difference they would have to think about raising local taxation (eg through non-domestic rates or domestic local taxation) or finding the money in some other way.
Of course, for taxes which are to be wholly devolved, such as landfill tax and stamp duty land tax, the West Lothian question does apply in full force, but these are not taxes likely to start pulses racing (although interestingly it was stamp duty which was one of the issues which finally drove the American colonies to rebellion).
Friday, 2 July 2010
Unicorns and trade marks
Here is a bit of humour to help lift World Cup gloom for those in England, following the last-16 stage.
The law of trade marks comprises one of the branches of the law of intellectual property. Unlike copyrights and patents, trade marks do not protect the implementation of an idea by the way of patentable invention, nor actual creative expression by way of copyright, but protect product reputation and goodwill. One of the other differentiating features of trade marks from patents and copyright is that if they are not enforced (leaving minor or inconsequential misuses out of account), they can lapse. This means that those who own valuable marks must be vigilant about whether others are misusing their marks in a consequential way, and enforcing the marks if they are.
A registered trade mark is an expression or symbol which identifies particular products or services as being those of a particular trader. The breach of a trade mark arises if another trader describes one of their own products or services in a way which might confuse it, in the eyes of a reasonable person, with those of the trader protected by the mark. If the trade mark is registered, this gives a separate right of action apart from the common law wrong of "passing off": the misusing of the mark becomes a cause of action of itself in the UK (including Scotland). US trade mark law is similar to that in the UK and many other countries, although in the US there is the additional concept of "trade mark dilution": that use of the mark by others might devalue it even if no product confusion results.
However vigilance can be taken too far. In the US there is a National Pork Board, an organisation representing those producing and trading in pork meat. The Board has a registered trade mark in the expression "The Other White Meat", which is widely used in the Board's advertising (presumably this is an attempt to make pork appeal to turkey-eaters).
ThinkGeek are an internet trading organisation selling weird products on the internet that most people wouldn't buy to save their lives, but that some people apparently like (I must confess that the Monty Python Killer Rabbit slippers look quite appealing). It is tempting to think that the whole site is a spoof but that is apparently not the case. However they do from time to time do spoofs, and on April 1st this year they advertised their unicorn meat product, under the buy-line "Pâté is passé. Unicorn - the new white meat". Apparently someone at the National Pork Board, zealously protecting their trade mark as required by law, thought that unicorns really existed, and that the use of the expression "the new white meat" might cause a reasonable consumer to confuse the product with pork, notwithstanding the sales information which included:
Suffice to say, the spoof "product" remains advertised by ThinkGeek.
The law of trade marks comprises one of the branches of the law of intellectual property. Unlike copyrights and patents, trade marks do not protect the implementation of an idea by the way of patentable invention, nor actual creative expression by way of copyright, but protect product reputation and goodwill. One of the other differentiating features of trade marks from patents and copyright is that if they are not enforced (leaving minor or inconsequential misuses out of account), they can lapse. This means that those who own valuable marks must be vigilant about whether others are misusing their marks in a consequential way, and enforcing the marks if they are.
A registered trade mark is an expression or symbol which identifies particular products or services as being those of a particular trader. The breach of a trade mark arises if another trader describes one of their own products or services in a way which might confuse it, in the eyes of a reasonable person, with those of the trader protected by the mark. If the trade mark is registered, this gives a separate right of action apart from the common law wrong of "passing off": the misusing of the mark becomes a cause of action of itself in the UK (including Scotland). US trade mark law is similar to that in the UK and many other countries, although in the US there is the additional concept of "trade mark dilution": that use of the mark by others might devalue it even if no product confusion results.
However vigilance can be taken too far. In the US there is a National Pork Board, an organisation representing those producing and trading in pork meat. The Board has a registered trade mark in the expression "The Other White Meat", which is widely used in the Board's advertising (presumably this is an attempt to make pork appeal to turkey-eaters).
ThinkGeek are an internet trading organisation selling weird products on the internet that most people wouldn't buy to save their lives, but that some people apparently like (I must confess that the Monty Python Killer Rabbit slippers look quite appealing). It is tempting to think that the whole site is a spoof but that is apparently not the case. However they do from time to time do spoofs, and on April 1st this year they advertised their unicorn meat product, under the buy-line "Pâté is passé. Unicorn - the new white meat". Apparently someone at the National Pork Board, zealously protecting their trade mark as required by law, thought that unicorns really existed, and that the use of the expression "the new white meat" might cause a reasonable consumer to confuse the product with pork, notwithstanding the sales information which included:
"Excellent source of sparkles!The Board went as far as issuing a "cease and desist" letter via their lawyers. This must be one of the epic legal blunders of modern times.
"Unicorns, as we all know, frolic all over the world, pooping rainbows and marshmallows wherever they go. What you don't know is that when unicorns reach the end of their lifespan, they are drawn to County Meath, Ireland. The Sisters at Radiant Farms have dedicated their lives to nursing these elegant creatures through their final days. Taking a cue from the Kobe beef industry, they massage each unicorn's coat with Guinness daily and fatten them on a diet comprised entirely of candy corn."
Suffice to say, the spoof "product" remains advertised by ThinkGeek.
Friday, 14 May 2010
The 55% proposal
In my post here I commented adversely on the Conservative/Liberal Democrat coalition proposal, in my words, "to require any vote of no confidence to have a 55% majority against the government" in order to come into effect. This comment related to my reading of the provision in the coalition document which states, in relation to its legislation for a fixed term Parliament that "This legislation will also provide for dissolution if 55% or more of the House votes in favour."
The purpose of this proposal is not, it now appears, what I supposed. The convention requiring a government to resign in the event of a vote of no confidence being passed by a bare majority is, apparently, to remain. The 55% figure is the threshold that would require a new election before the conclusion of the proposed 5 year fixed term. What is intended to happen in the event of a vote of no confidence being passed by more than 50% of the those voting but not being followed by a 55% vote in favour of a dissolution, is that the parties which passed the motion of no confidence should get together and agree a new coalition to form a government which is able to command the confidence of the House.
In this respect, it mirrors the equivalent provision applying to the Scottish Parliament which requires a 66% vote to trigger an early election rather than the resignation of Alex Salmond's government, which would only require a 50% vote.
Put this way it does not comprise the act of constitutional violence that I supposed it did. The downside however is that a no confidence vote not leading to a dissolution would, without proportional representation (which gives rise to a more even spread of party representation than first-past-the-post or alternative vote), require a new coalition government with probably only a small majority. or maybe a minority government with no majority at all, to limp on to the conclusion of the original government's 5 year term, even though it would be likely to have difficulty completing its legislative programme. One could envisage a succession of no confidence votes resulting in increasingly ill-tempered attempts to form new groupings capable of forming a government. The thinking presumably is however that, were a government to be paralysed in this way, there would be sufficient cross-party consensus on the need for a new election as to enable the 55% vote for a dissolution to be passed.
Without proportional representation, it might be easier to require that an early dissolution may only occur following the passing of a vote of no confidence against the government in office, and in addition to provide (in order to prevent the government triggering its own downfall so as to provoke a new election at a time of its own choosing) that only the leader of the opposition may put down such a motion of no confidence.
The purpose of this proposal is not, it now appears, what I supposed. The convention requiring a government to resign in the event of a vote of no confidence being passed by a bare majority is, apparently, to remain. The 55% figure is the threshold that would require a new election before the conclusion of the proposed 5 year fixed term. What is intended to happen in the event of a vote of no confidence being passed by more than 50% of the those voting but not being followed by a 55% vote in favour of a dissolution, is that the parties which passed the motion of no confidence should get together and agree a new coalition to form a government which is able to command the confidence of the House.
In this respect, it mirrors the equivalent provision applying to the Scottish Parliament which requires a 66% vote to trigger an early election rather than the resignation of Alex Salmond's government, which would only require a 50% vote.
Put this way it does not comprise the act of constitutional violence that I supposed it did. The downside however is that a no confidence vote not leading to a dissolution would, without proportional representation (which gives rise to a more even spread of party representation than first-past-the-post or alternative vote), require a new coalition government with probably only a small majority. or maybe a minority government with no majority at all, to limp on to the conclusion of the original government's 5 year term, even though it would be likely to have difficulty completing its legislative programme. One could envisage a succession of no confidence votes resulting in increasingly ill-tempered attempts to form new groupings capable of forming a government. The thinking presumably is however that, were a government to be paralysed in this way, there would be sufficient cross-party consensus on the need for a new election as to enable the 55% vote for a dissolution to be passed.
Without proportional representation, it might be easier to require that an early dissolution may only occur following the passing of a vote of no confidence against the government in office, and in addition to provide (in order to prevent the government triggering its own downfall so as to provoke a new election at a time of its own choosing) that only the leader of the opposition may put down such a motion of no confidence.
Thursday, 13 May 2010
A coalition with potential
I am surprised that the Conservatives managed to agree a coalition with the Liberal Democrats, but it is an interesting development, and in its form is one that shows considerable political generosity by the Conservatives towards the Liberal Democrats.
The Conservatives may benefit from this indirectly, beyond just being able to take power for the moment, by making the party more used to occupying the centre ground and by neutralising, for a while, the more swivel-eyed at the far right of the party. As a person in the centre of the party leaning towards, but not yet at one with, the one-nation Tories, David Cameron's talk of this being an opportunity as well as a challenge is probably something he actually feels as well as being a good sound bite. A dose of realism might well be good for the Tories, and in due course become a habit.
The Labour party's attack strategy is already becoming clear, and is a retreat to type: that this government is a government of cuts. If the coalition play their cards right, they may well be able to defeat this one. Gordon Brown was at his most unpopular and most derided when he was pushing his "Tories' 10% cuts" line, when everyone knew that a Labour government would have to do the same and cuts were inevitable. The coalition response needs to be in kind, namely that it is the same old dishonesty. If they play their cards correctly (and they may not), Cameron may be right that the coalition can bring a good portion of the electorate with them on cuts. Their stock response to a Labour attack of this kind should not be a quibble about numbers (nor even the ineffective Steve Hilton nicey-nicey big society stuff), but should work at the level of sentiment with one word: dishonest.
All this of course depends on the coalition surviving more than 12 months. It might or might not. But this is certainly a bold move by David Cameron. It seems that he lacks neither political instinct nor the decisiveness to lead the way and follow his instinct.
The coalition document
Two things of interest were in the coalition document. First, the proposal to require any vote of no confidence to have a 55% majority against the government looks like the same-old same-old political cynicism and seems very ill-advised. Its purpose is presumably to allow the government to continue even with a Liberal Democrat defection, as a minority government, but it simply won't work, and I am amazed the Conservatives had the balls to suggest it and the Liberal Democrats the lack of wisdom to agree it. To be effective it would require any Finance Act and Appropriation Act to be capable of being passed with a 45% vote, which would be outrageous. Update: it transpires that this is a misreading of the intentions of the coalition document: see this for further explanation.
Secondly, also of interest was the agreement, presumably at Liberal Democrats' insistence, that the West Lothian question should be put to a commission rather than implementing Ken Clarke's Democracy Taskforce proposal for an English Grand Committee.
Putting things to commissions is of course the standard way of kicking things to the long grass. In the 1970s we had the Kilbrandon Commission on the Constitution of the United Kingdom, which enumerated the arguments against an English Parliament and/or restricted voting at Westminster and/or regional bodies with legislative powers within England (the majority report recommended instead pseudo-devolution within England along the lines of the hopeless John Prescott proposals). As Ken Clarke is the new Justice Secretary and will therefore presumably be in charge of this project, it will be for him to move it along should he feel the urge to do so, and maybe his appointment to the office of Justice Secretary is an indication that he proposes to do so.
What we need though is a commission which looks for solutions and not for problems. In particular it needs to eschew the straw-man approach of those who advocate the "do-nothing" option, which I touch on here. I do not think "do-nothing" is going to work for a great deal longer.
Even better would be a commission which actually listens to what people in England would like, which is surely going to have to happen at some stage, or would that be too much like open government for the taste of this coalition? Probably, it would: the coalition is a bold step in government, but it will probably not turn out to be the start of a new kind of politics as claimed for it. However, let's keep hoping.
The Conservatives may benefit from this indirectly, beyond just being able to take power for the moment, by making the party more used to occupying the centre ground and by neutralising, for a while, the more swivel-eyed at the far right of the party. As a person in the centre of the party leaning towards, but not yet at one with, the one-nation Tories, David Cameron's talk of this being an opportunity as well as a challenge is probably something he actually feels as well as being a good sound bite. A dose of realism might well be good for the Tories, and in due course become a habit.
The Labour party's attack strategy is already becoming clear, and is a retreat to type: that this government is a government of cuts. If the coalition play their cards right, they may well be able to defeat this one. Gordon Brown was at his most unpopular and most derided when he was pushing his "Tories' 10% cuts" line, when everyone knew that a Labour government would have to do the same and cuts were inevitable. The coalition response needs to be in kind, namely that it is the same old dishonesty. If they play their cards correctly (and they may not), Cameron may be right that the coalition can bring a good portion of the electorate with them on cuts. Their stock response to a Labour attack of this kind should not be a quibble about numbers (nor even the ineffective Steve Hilton nicey-nicey big society stuff), but should work at the level of sentiment with one word: dishonest.
All this of course depends on the coalition surviving more than 12 months. It might or might not. But this is certainly a bold move by David Cameron. It seems that he lacks neither political instinct nor the decisiveness to lead the way and follow his instinct.
The coalition document
Two things of interest were in the coalition document. First, the proposal to require any vote of no confidence to have a 55% majority against the government looks like the same-old same-old political cynicism and seems very ill-advised. Its purpose is presumably to allow the government to continue even with a Liberal Democrat defection, as a minority government, but it simply won't work, and I am amazed the Conservatives had the balls to suggest it and the Liberal Democrats the lack of wisdom to agree it. To be effective it would require any Finance Act and Appropriation Act to be capable of being passed with a 45% vote, which would be outrageous. Update: it transpires that this is a misreading of the intentions of the coalition document: see this for further explanation.
Secondly, also of interest was the agreement, presumably at Liberal Democrats' insistence, that the West Lothian question should be put to a commission rather than implementing Ken Clarke's Democracy Taskforce proposal for an English Grand Committee.
Putting things to commissions is of course the standard way of kicking things to the long grass. In the 1970s we had the Kilbrandon Commission on the Constitution of the United Kingdom, which enumerated the arguments against an English Parliament and/or restricted voting at Westminster and/or regional bodies with legislative powers within England (the majority report recommended instead pseudo-devolution within England along the lines of the hopeless John Prescott proposals). As Ken Clarke is the new Justice Secretary and will therefore presumably be in charge of this project, it will be for him to move it along should he feel the urge to do so, and maybe his appointment to the office of Justice Secretary is an indication that he proposes to do so.
What we need though is a commission which looks for solutions and not for problems. In particular it needs to eschew the straw-man approach of those who advocate the "do-nothing" option, which I touch on here. I do not think "do-nothing" is going to work for a great deal longer.
Even better would be a commission which actually listens to what people in England would like, which is surely going to have to happen at some stage, or would that be too much like open government for the taste of this coalition? Probably, it would: the coalition is a bold step in government, but it will probably not turn out to be the start of a new kind of politics as claimed for it. However, let's keep hoping.
Sunday, 9 May 2010
How much time is there
So it appears that the Conservative/Liberal Democrat talks have not so far yielded fruit. We were told this afternoon, after the days' talks had finished, what they have been discussing, but not whether the gap is unbridgeable.
William Hague said "We are agreed that a central part of any agreement that we make will be economic stability and the reduction of the budget deficit" apparently in an attempt to calm the markets, but it remains to be seen whether they will remain calmed once the main markets reopen tomorrow.
From that point of view, I am not convinced that there is a lot of time remaining. My view on Friday, which is here, was that the most likely outcome was a Liberal Democrat undertaking for the time being to vote with the Conservatives or abstain at the Queen's Speech and on budget/taxation matters, and I am a little surprised that the Liberal Democrats have not by now at least given some indication in that direction. If we do end up with another election in a few weeks' time, which seems the likely outcome were the Conservatives and the Liberal Democrats to fail to agree something, I suspect the Liberal Democrats will be significantly punished by the voters, as well as showing themselves as a party which prefers to bleat from the sidelines rather than to be taken seriously and accept the burdens of office.
William Hague said "We are agreed that a central part of any agreement that we make will be economic stability and the reduction of the budget deficit" apparently in an attempt to calm the markets, but it remains to be seen whether they will remain calmed once the main markets reopen tomorrow.
From that point of view, I am not convinced that there is a lot of time remaining. My view on Friday, which is here, was that the most likely outcome was a Liberal Democrat undertaking for the time being to vote with the Conservatives or abstain at the Queen's Speech and on budget/taxation matters, and I am a little surprised that the Liberal Democrats have not by now at least given some indication in that direction. If we do end up with another election in a few weeks' time, which seems the likely outcome were the Conservatives and the Liberal Democrats to fail to agree something, I suspect the Liberal Democrats will be significantly punished by the voters, as well as showing themselves as a party which prefers to bleat from the sidelines rather than to be taken seriously and accept the burdens of office.
Friday, 7 May 2010
Gordon Brown doing the right thing
There is a disgraceful headline in tomorrow morning's Sun, with its "Squatter holed up in No 10".
It seems highly unlikely that Gordon Brown does not realise that it is all over for him, for the reasons I have given here. The best that can happen for him is another election in a few weeks' time at which he might get a better result, but he is probably exhausted and would prefer to avoid that as much as the other party leaders.
I am not a great admirer of Gordon Brown's policies nor his moral compass. Nonetheless it seems highly improbable that he thinks he can forge a lasting coalition which will keep him in power. Instead, he knows that someone needs to run the country until a new government can be formed by others or another election held next month, and he is the one the constitution requires to do it. He gave, in my view, a dignified address earlier today. Contrary to the Sun's headline, it is much more likely that, rather than attempting to stay in office until someone prizes him out and throws him overboard, he is sadly watching his ship list and settle in the water while remaining at his post, knowing that that is what he has to do and there is no way out.
It seems highly unlikely that Gordon Brown does not realise that it is all over for him, for the reasons I have given here. The best that can happen for him is another election in a few weeks' time at which he might get a better result, but he is probably exhausted and would prefer to avoid that as much as the other party leaders.
I am not a great admirer of Gordon Brown's policies nor his moral compass. Nonetheless it seems highly improbable that he thinks he can forge a lasting coalition which will keep him in power. Instead, he knows that someone needs to run the country until a new government can be formed by others or another election held next month, and he is the one the constitution requires to do it. He gave, in my view, a dignified address earlier today. Contrary to the Sun's headline, it is much more likely that, rather than attempting to stay in office until someone prizes him out and throws him overboard, he is sadly watching his ship list and settle in the water while remaining at his post, knowing that that is what he has to do and there is no way out.
The aftermath
What an intriguing election result; the most interesting result which it is possible to imagine. It looks as if the voters have, whether inadvertently or not, given a fine two fingers to the political class.
With the numbers now coming out, neither the Conservatives, nor a LibDem-Lab coalition, could actually achieve a majority government. This means that the only coalition game in town is a Conservative-LibDem coalition. My bet is that that won't happen, because the LibDem's price would be proportional representation in the Commons and the Conservatives are not prepared to offer it, and the LibDem's "triple-lock" would prevent a coalition on any other basis.
Gordon Brown could try to form a coalition of Labour, the Lib Dems, the DUP and/or the SNP and Plaid Cymru, but the bribes payable to the DUP/SNP/Plaid would probably be too high to be acceptable to voters in England, and even if not it would be so unstable as to be unworkable, particularly if the SNP and Plaid Cymru stick to their policy on not voting on England-only matters.
So my bet is a Conservative minority government with a LibDem undertaking for the time being to vote with them, or abstain, at the Queen's Speech and on budget/taxation matters. If the Conservatives are willing to offer the LibDems an elected House of Lords under proportional representation, which they probably are, that may keep it in place into next year, but probably not much beyond that.
If the LibDems are not prepared to agree even that, then the emerging make-up of the House of Commons would prevent any workable government being formed and we can look forward to another election in four weeks' time and a Gordon Brown "caretaker" administration in the meantime. The LibDems almost certainly don't want to take that risk: so big pressure on Nick Clegg.
With the numbers now coming out, neither the Conservatives, nor a LibDem-Lab coalition, could actually achieve a majority government. This means that the only coalition game in town is a Conservative-LibDem coalition. My bet is that that won't happen, because the LibDem's price would be proportional representation in the Commons and the Conservatives are not prepared to offer it, and the LibDem's "triple-lock" would prevent a coalition on any other basis.
Gordon Brown could try to form a coalition of Labour, the Lib Dems, the DUP and/or the SNP and Plaid Cymru, but the bribes payable to the DUP/SNP/Plaid would probably be too high to be acceptable to voters in England, and even if not it would be so unstable as to be unworkable, particularly if the SNP and Plaid Cymru stick to their policy on not voting on England-only matters.
So my bet is a Conservative minority government with a LibDem undertaking for the time being to vote with them, or abstain, at the Queen's Speech and on budget/taxation matters. If the Conservatives are willing to offer the LibDems an elected House of Lords under proportional representation, which they probably are, that may keep it in place into next year, but probably not much beyond that.
If the LibDems are not prepared to agree even that, then the emerging make-up of the House of Commons would prevent any workable government being formed and we can look forward to another election in four weeks' time and a Gordon Brown "caretaker" administration in the meantime. The LibDems almost certainly don't want to take that risk: so big pressure on Nick Clegg.
Saturday, 1 May 2010
The SNP and the BBC
On Wednesday the SNP lost their application to the Court of Session in Scotland for an interim interdict (what the law of Wales, England and Northern Ireland would call an interim injunction) precluding the showing by the BBC in Scotland of the final election debate on Thursday, in the absence of the leader of the SNP, Alex Salmond, being given the same right to appear as the Conservative, Liberal and Labour party leaders.
This was probably bound to fail, if in part because of jurisdictional and pragmatic reasons, and I am sure they knew this. They were really just making a point. The debates were in Manchester, and the Court of Session has no jurisdiction in respect of Manchester. The holding of the debate there would have been a matter for the High Court of England and Wales. An interdict precluding the showing of the debate from transmitting stations in Scotland would probably have been within jurisdiction, but fairly pointless given that it was also broadcast by Sky and was available over the internet.
One can understand the SNP's point. The Liberal Democrats have benefited greatly, and somewhat unexpectedly, from the three televised debates and there is every reason to believe that the SNP would pick up more votes in constituencies which are marginal for them had they been allowed to appear. There have been a number of newspaper articles about it, such as Magnus Linklater's "the BBC doesn't understand devolution" in the Times which in my view was lightly reasoned to the point of trivialising the issues. There have been similar articles in the Guardian of better quality. The purpose of this blog article is to invite consideration of the wider range of questions to which Mr Salmond's request for an appearance gives rise.
Contrary to what Magnus Linklater says, the BBC almost certainly do understand devolution, and spend considerably more time and trouble spelling out, in their news reports, the territorial extent of the political matters which they report than do most other organisations. They have become pretty rigorous in not conflating England on the one hand with Britain and the United Kingdom on the other (and vice versa), which is something the newspapers and the three main parties are less good at. In the case of the newspapers this is mainly from genuine ignorance, and in the case of the three main parties is from a desire to obfuscate. For the interested, compare the BBC's coverage of the three party manifestos, which did explain territorial extent, with the manifestos themselves (including that of Mr Linklater's wife's party, the Liberal Democrats) which largely did not.
Devolution and the television debates
The fact of the matter is that devolution has thrown up real dilemmas. The first televised debate covered matters which were largely devolved in Scotland, Wales and Northern Ireland, and during the debate the ITV presenter gamely made that point (frequently) and indicated that there would be separate leadership debates in those three countries on them, as indeed there were. However, discussion of devolved matters such as health, education and policing at the Scottish leader's debate which did take place subsequently would still have been irrelevant to this election, since Westminster and the UK Parliament do not govern those matters in Scotland. They will instead be for the Scottish elections which are to take place in 2011.
That did not stop the Scottish party leaders waffling on about those things in Scotland as if they were of relevance to the choice of their electors in the Westminster election. If the Scottish leaders had waffled on in their debate about their parties' policies for England on the NHS and education, that would have had more relevance, because pending a solution to the West Lothian Question Scottish MPs do exercise a decision making function on them, but for England and Wales only.
Most reasonable people would I think agree that it would have been absurd for Alex Salmond to have been present at the first televised debate which, as I have said, largely concerned policies affecting England or England and Wales only.
Should Alex Salmond have been allowed to participate in the second and third debates, which covered a number of matters not devolved, such as taxation, the deficit, defence, foreign affairs and immigration? The case for that is certainly stronger. But the fact of the matter is that these will be matters for the UK government, and the SNP are only fielding candidates in Scotland and therefore will be unable to form a government for the UK.
It must be acknowledged that in the event of a hung Parliament they may exercise some influence on these UK matters, but so will the DUP, the SDLP and Plaid Cymru, as will also the Greens and UKIP (should they obtain any seats) and Sinn Fein (in the unlikely event of them deciding to take up their seats). The remaining defining feature of the SNP is that they are in government in Scotland, albeit without a majority, but so are the DUP and Sinn Fein in Northern Ireland (who are in a coalition government which does have a majority) and Plaid Cymru in Wales (who are in a coalition government with Labour). Should the SNP be allowed to appear while in government, but not if they cease to be after the 2011 elections? If so, the proposition is that the elections for the Scottish Parliament will determine the right to appear in debates on elections for the Westminster Parliament, which has its own logical dilemmas; and this appearance would clearly have to be accompanied by an appearance also by the leaders of the DUP, Sinn Fein and Plaid Cymru (should they want it). The DUP, Sinn Fein and Plaid Cymru did not seem to appear on Mr Linklater's radar however.
There is simply no easy answer to this. The BBC's holding of separate debates for Scotland, Wales and Northern Ireland was a defensible one. Plainly however it will not satisfy some Scots, but it seems few things do.
This was probably bound to fail, if in part because of jurisdictional and pragmatic reasons, and I am sure they knew this. They were really just making a point. The debates were in Manchester, and the Court of Session has no jurisdiction in respect of Manchester. The holding of the debate there would have been a matter for the High Court of England and Wales. An interdict precluding the showing of the debate from transmitting stations in Scotland would probably have been within jurisdiction, but fairly pointless given that it was also broadcast by Sky and was available over the internet.
One can understand the SNP's point. The Liberal Democrats have benefited greatly, and somewhat unexpectedly, from the three televised debates and there is every reason to believe that the SNP would pick up more votes in constituencies which are marginal for them had they been allowed to appear. There have been a number of newspaper articles about it, such as Magnus Linklater's "the BBC doesn't understand devolution" in the Times which in my view was lightly reasoned to the point of trivialising the issues. There have been similar articles in the Guardian of better quality. The purpose of this blog article is to invite consideration of the wider range of questions to which Mr Salmond's request for an appearance gives rise.
Contrary to what Magnus Linklater says, the BBC almost certainly do understand devolution, and spend considerably more time and trouble spelling out, in their news reports, the territorial extent of the political matters which they report than do most other organisations. They have become pretty rigorous in not conflating England on the one hand with Britain and the United Kingdom on the other (and vice versa), which is something the newspapers and the three main parties are less good at. In the case of the newspapers this is mainly from genuine ignorance, and in the case of the three main parties is from a desire to obfuscate. For the interested, compare the BBC's coverage of the three party manifestos, which did explain territorial extent, with the manifestos themselves (including that of Mr Linklater's wife's party, the Liberal Democrats) which largely did not.
Devolution and the television debates
The fact of the matter is that devolution has thrown up real dilemmas. The first televised debate covered matters which were largely devolved in Scotland, Wales and Northern Ireland, and during the debate the ITV presenter gamely made that point (frequently) and indicated that there would be separate leadership debates in those three countries on them, as indeed there were. However, discussion of devolved matters such as health, education and policing at the Scottish leader's debate which did take place subsequently would still have been irrelevant to this election, since Westminster and the UK Parliament do not govern those matters in Scotland. They will instead be for the Scottish elections which are to take place in 2011.
That did not stop the Scottish party leaders waffling on about those things in Scotland as if they were of relevance to the choice of their electors in the Westminster election. If the Scottish leaders had waffled on in their debate about their parties' policies for England on the NHS and education, that would have had more relevance, because pending a solution to the West Lothian Question Scottish MPs do exercise a decision making function on them, but for England and Wales only.
Most reasonable people would I think agree that it would have been absurd for Alex Salmond to have been present at the first televised debate which, as I have said, largely concerned policies affecting England or England and Wales only.
Should Alex Salmond have been allowed to participate in the second and third debates, which covered a number of matters not devolved, such as taxation, the deficit, defence, foreign affairs and immigration? The case for that is certainly stronger. But the fact of the matter is that these will be matters for the UK government, and the SNP are only fielding candidates in Scotland and therefore will be unable to form a government for the UK.
It must be acknowledged that in the event of a hung Parliament they may exercise some influence on these UK matters, but so will the DUP, the SDLP and Plaid Cymru, as will also the Greens and UKIP (should they obtain any seats) and Sinn Fein (in the unlikely event of them deciding to take up their seats). The remaining defining feature of the SNP is that they are in government in Scotland, albeit without a majority, but so are the DUP and Sinn Fein in Northern Ireland (who are in a coalition government which does have a majority) and Plaid Cymru in Wales (who are in a coalition government with Labour). Should the SNP be allowed to appear while in government, but not if they cease to be after the 2011 elections? If so, the proposition is that the elections for the Scottish Parliament will determine the right to appear in debates on elections for the Westminster Parliament, which has its own logical dilemmas; and this appearance would clearly have to be accompanied by an appearance also by the leaders of the DUP, Sinn Fein and Plaid Cymru (should they want it). The DUP, Sinn Fein and Plaid Cymru did not seem to appear on Mr Linklater's radar however.
There is simply no easy answer to this. The BBC's holding of separate debates for Scotland, Wales and Northern Ireland was a defensible one. Plainly however it will not satisfy some Scots, but it seems few things do.
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