This week is a historic milestone in the long campaign against nuclear weapons. On January 22nd, 2021, the Treaty on the Prohibition of Nuclear Weapons (TPNW) came into force having been passed by the support of 122 countries at the United Nations in July 2017. This treaty comprehensively bans nuclear weapons in all of their forms, bans countries from developing those weapons, funding their development, hosting weapons owned by others or even allowing them to be transported through their territory. 1 country (the Netherlands) voted against the treaty and another (Singapore) abstained. Several countries, including the United Kingdom, all other nuclear armed states as well as NATO nations, did not vote.
One of the strictures of the treaty was to set up a regular forum where State Parties (those countries who have signed and ratified the treaty) could come together and lay down the processes required to meet the various commitments that the treaty binds them to. This week, the First Meeting of the State Parties came together in Vienna to begin that process of bringing about the end of the age of nuclear weapons. A nuclear sunset to conclude the nuclear dawn that broke on July 16th, 1945.
Last week the Scottish Government, represented by Nicola Sturgeon and Patrick Harvie, launched the first paper in a series of papers framing their view of the next stage of the Scottish Independence campaign. This first paper – Independence in the Modern World. Wealthier, Happier, Fairer: Why Not Scotland? – is described as a “scene setter” and a description of the world as it is now rather than what it could be under independence. As such, it probably raised more questions from than delivered answers to the journalists at the press conference. It does nothing to answer or advance arguments around currency, borders or pensions or any of the other topics that I and other independence activists have been immersed in for a decade now but it wasn’t ever supposed to. All this paper has done is take several economic metrics such as GDP and inequality and compared the UK to several other countries in Europe. We’ve seen this approach before:– this paper is essentially an abbreviated and updated version of the first third of the 2018 report by Andrew Wilson’s Sustainable Growth Commission and the ideology that informed that report is woven throughout this new one.
(Since the original publication of this post, Ellen joined me on the Common Weal Policy Podcast to discuss the issues raised in more detail. You can listen to that show here.)
Common Weal has been at the forefront of Scottish democratic and governance reform since our inception – it’s one of the things that attracted me personally into the orbit of the organisation. One of our earliest campaign success stories was the creation of the Scottish lobbying register which, despite its many and still critical flaws, at least gives us some insight into who is talking to the Scottish Government and about what. Another area where we’ve been gaining ground is our ongoing campaign for better Scottish statistics – the Scottish Government has still not picked up our call for a dedicated Scottish Statistics Agency to fill gaps in data provision despite overwhelming support from SNP members three years ago.
Where these two areas intersect is how we, as citizens, gain access to data and information produced by the government which might be difficult to find or not published at all. You have a right called Freedom of Information which allows you to ask public bodies (including the government itself) about the information it holds on various topics. It can be a question such as how much has been spent on a project? Or how many times a Minister has met a specific person? Or anything else that isn’t routinely published or that the Government has good reason to not publish (perhaps due to national security concerns). There are, of course, caveats such as declining to publish information that would be difficult or expensive to obtain (perhaps the question was too broad or requires someone to trawl through a half-forgotten archive of paper records). All of this legislation is important. If we don’t know who is talking to government, what government is telling itself or what they’re not telling us then we cannot hold them to account for their actions. I’d go as far to say that an opaque government is inherently corrupt or, at least, cannot adequately demonstrate that it is not.
These reforms include ending “corporate confidentiality” in public-private contracts after the contracts have been signed (so we know precisely how much we’re spending and on what – especially on large infrastructure projects), mandating that private companies in receipt of public money should be covered by FOI when they spend it (so that government can’t hide behind a wall of privatisation), and – most serious of all – that government should end its unlawful practice of treating FOI requests from some people differently from others (such as allowing Ministers to “review”, delay or block FOI requests submitted by journalists). One of our key recommendations was to address a fundamental flaw in the FOI process itself which is that in order to get information into the public domain, you first need to be able to ask a question about it.
To ask the question “For the minutes of the meeting between the Minister for Energy and Coal Billionaire Joe McSmoke in August 2019?”, you first need to have some kind of suspicion that such a meeting even took place and that there’s a possibility that it was minuted and that those minutes were recorded in a way that is publishable. Instead, we’ve called for public bodies to adopt what we’ve termed to be a “Glass Wall” approach whereby any information that would normally be disclosed by a properly submitted FOI should be proactively published in a browsable archive (we may still need to submit something similar to an FOI to the curator of said archive to be able find said information but the point is that you wouldn’t need to).
I’m glad to say that many of these suggestions were accepted by the Committee and, eventually, by the Government itself. It brought about an investigation by the Information Commissioner to ensure that the recommendations were being carried out (especially the ending of unlawful interference of FOI by ministers) and which published last week.
It was this report that led me to discovering another fundamental flaw in the FOI process that surprised me and also throws the entire system into serious doubt as to its ability to ensure transparent government.
Folk in Indy circles will no doubt be aware of the ongoing story about the UK Government’s “secret polling” into public attitudes on the Union. This polling was done in around 2018 (so is almost certainly out of date now) but was never publicly published. A court case recently concluded with an instruction to publish the data and the latest in this story is that the UK Government is still refusing to publish and may need to be challenged again.
However, there is a twist to this story. When this all kicked off last year my wife Ellen asked the obvious but unasked question – If the UK Government isn’t publishing its polling on attitudes towards independence, why couldn’t the Scottish Government publish its own internal polling on the topic? Even better, once both were published, we could compare and contrast the results of the various questions asked. Not being able to find that polling in any of the public databases, Ellen submitted an FOI for its release and, to both of our surprise, we were told that the reason that this data hadn’t be published before and couldn’t be published now was because the Scottish Government hadn’t conducted any public polling on attitudes in the time between January 2018 and July 2021 when the request was submitted.
This could and should have been a major story last year and Ellen planned to send it around journalistic circles just as soon as a linkable version appeared on the Scottish Government FOI database. Several days passed without it doing so. Then weeks. Then a couple of months. To this day, if you search for her FOI request it still returns no result.
The Information Commissioner’s report last week brought the topic back to the front of our mind and Ellen contacted the Commissioner to try to find out if there was a reason that this FOI would not be published. The prompt reply frankly shocked us. A private reply to an FOI is considered by the Scottish Government to be a fulfilment of FOI legislation and puts the information into the “public domain” but there is no obligation in the legislation for the reply to be entered into a public database. Doing so is merely considered “best practice”.
Consider this for a moment. There is an obligation on the Scottish Government to respond to FOI requests but so long as they give the information to the person who asked the question, there is no obligation on them to let anyone else know about it. But, as it is now a public document, “leaking” it as I have done above isn’t even leaking – it’s just sharing a public document.
But this leads us to another question – how many FOI requests have been answered by private email and not shared more widely? I don’t think it’s a question anyone but the Scottish Government can answer with certainty but there may be a way of taking at least a stab at it. Whenever you submit an FOI request, you are given a unique reference number. That number – as per Ellen’s FOI above – takes the form of the year of submission and then a string of numbers. That string of numbers appears to be not random but at least somewhat sequential. The earliest FOI in the database is FoI/16/00690 published on October 23rd 2017 and the most recent as of the time of writing – published on May 24th 2022 – is FOI/202200296591. As of the time of writing there are 8879 FOI replies in the database. I don’t know if the sequence of ID numbers includes documents other than FOIs (is document 202200296592 some other letter to or from a civil servant perhaps?) but I can’t imagine why it would. It may be that some of these FOIs have been sent to other public bodies (such as Local Authorities) and published in their own databases but – as said above – we have a clear example of at least one FOI to the Scottish Government that has not been published. Assuming each of these numbers does refer solely to a unique FOI request and its reply and the reference number is as sequential as it appears to be then that may suggest that in the worst case, less than 30% of FOI requests to the Scottish Government have been published in a public manner beyond a direct reply to the person who submitted the request. I dearly hope there’s an explanation out there that means that things aren’t as bad as that. If anyone has one, please do let me know.
I’d be really interested to hear your experiences with this. If you have submitted an FOI request and found that your reply is not on the database then let us know. I’m not sure what we can do from there. We could probably do more to train up volunteers to submit FOIs and have them share their replies with us but how can we do more than that? Does Common Weal have to publish these FOIs ourselves? Do we have to partner with some journalists to create a “Shadow Repository” of all of the FOIs the Government didn’t want you to see? Will just the threat of doing so force an explanation from the Government? Whether by actual legislation or, as a distant second, firm departmental commitments to actually follow “best practice” the Scottish Government should and must publish ALL FOI requests that it responds to. Even the “frivolous” ones. Even the “vexatious” ones. Even the “inconvenient” ones from journalists and especially even the ones that reveal that the Scottish Government hasn’t been doing work that it should have been doing as it prepares to fight another independence campaign. For their part, the Information Commissioner’s office confirmed to us that it is not within their remit to force FOI replies to be published again, because it is not a statutory requirement.
As I said at the top of this piece, I don’t think we can have a functioning democracy without transparency and accountability. Corruption is inevitable if power remains in the dark and behind closed doors. If only a select few have access to information, the same results. From a very practical standpoint, it’s also a complete waste of resources to have to blindly keep asking the same FOI questions because you didn’t know that someone else asked for the same information some time before you. In a very real sense there can be no freedom without freedom of information. The Scottish Government can and must ensure that all of us can see what it is doing at all times. If they don’t, we have to ask the final obvious, unasked question. What, precisely, are they hiding from us?
An extremely disturbing report was published this week looking into life expectancy in Scotland and the UK. It found that the consistent gains in life expectancy that we have experienced for much of the 20th century and into the first decade of the 21st has stalled and has even started to decline for some groups – especially the poorest and most deprived. This stall was abrupt and started in 2012 and has had the effect of knocking around 16 months of life off of the average Scot compared to pre-2012 trends.
This was not due to a “natural limit” of life expectancy being reached (though such a limit does almost certainly exist) nor have neighbouring countries experienced this stall to anywhere the same degree. The stall is not due to Covid, nor any other endemic illness. Drug-related deaths in Scotland are rising and this is having a measurable impact on average life expectancy but life expectancy has also stalled for non-drug users so this cannot explain everything either. Nor is it due to obesity or even due to climate change (though the former had more of an impact than the latter). All of these factors and more could be isolated, accounted for and controlled for in the study. Once this was done, there remained still an additional adverse impact on our life expectancy.
The conclusion of the report is that there is one stark cause above all of the other factors that has resulted in our lives being, on average, shorter than they otherwise would have been. In 2010 the UK Government began a massive socio-economic experiment called Austerity. This, the report finds, has been the primary cause above all others for the harm done to our health and wellbeing. It has sucked vital resources out of public services and starved households of the resources required to replace them. Poverty and deprivation – deliberately applied by political choice – has killed people earlier than they otherwise would have died.
It is in this context that we must view the other major reports published this week – the Scottish Government’s Resource Spending Review and Capital Spending Review. These financial reviews lay out the plans for devolved government spending over the next four or five years up till the end of this Parliament. The choices being made are grim.
The UK signalled this week that it was about to unilaterally pull out of parts of a major international treaty with its nearest neighbour, regardless of the costs of doing so. One of those costs will surely be damage to the reputation that is critical for upholding other international agreements and in the price that may be extracted by opposite partners in future deals and treaties knowing that the UK is willing to break from them when it suits.
I’m talking, of course, about the recent announcement that the UK will try to unilaterally rewrite the Northern Ireland Protocol which dictates how the EU interacts with the UK across their mutual land border. The Brexit agreement was always going to come to some kind of impasse like this. The UK’s own self-written “red lines” made this clear even back in 2018 when they were first announced.
In short, the UK demanded three things of the Brexit Agreement:
1) England was to leave the Single Market and Customs Union (thus creating a customs border between England and the EU).
2) Northern Ireland was to remain within the Single Market and Customs Union (thus no customs border between NI and Ireland).
3) Northern Ireland had to get the same Brexit deal as England (thus no customs border between NI and England).
There was never any way of achieving all three of these simultaneously (and, incidentally, the reason I didn’t mention Scotland and Wales above is that from a UK perspective they don’t really matter and can be safely ignored – this was doubly the case in 2017-2019 when the 13 Scottish Tory MPs’ loyalty ironically meant that they mattered to the Government a lot less than the 10 DUP MPs who signed a cooperation agreement to support Theresa May’s minority Government). The way to keep NI and Ireland border-free (an overriding priority on both sides) was to guarantee red-line 2). That meant that either England could stay in the Single Market or it could create a border in the Irish sea. England wanted to do neither.
But, when push came to shove (and “shove” meant Boris Johnson ramming through a leadership contest and the 2019 General Election on the promised to “Get Brexit Done”) then it meant choosing to drop option 3) and erecting a border in the Irish Sea. This, of course, meant selling out those DUP MPs who held up the previous government but, now that Johnson had regained a Tory majority – they didn’t matter now and, like Scotland and Wales, could once again be safely ignored. Party loyalty would do the rest – ensuring that the Brexit Deal would pass the commons regardless of whether or not those voting for it had understood or even read it and people who were promised by politicians that there would be no customs paperwork involved in moving goods from one part of the UK to another ended up being surprised by how much paperwork would become involved.
Scotland should be watching how this potential trade war plays out because we will inevitably be in a very similar situation when it comes to our own independence. The Anglo-Scottish land border and how trade moves across it is likely to be one of the most pressing and fraught negotiating points of our eventual separation agreement – though, of course, Common Weal has already published a policy paper covering much of the ground work that needs to be done here – and Scotland will end up looking like a very different country depending on whether we decide to align our trade more with a British Customs Union, with the European Union or stay unaligned to both. I’m not going to use this article to advocate for any of those options right now though I would say that we almost certainly lack the data required to make an informed choice.
When whoever forms “Team Scotland” and sits across the table from the representatives of the remaining UK to negotiate our departure we need to consider that the UK is not a state that keeps its word when it comes to agreements like this. This simply fact should underpin the strategy that Scotland employs when it goes in and lays out its negotiating position.
I’ve written about the process of negotiating the separation of debts and assets. It formed one of my earliest papers for Common Weal. It was a keystone topic in the Scottish Independence Convention’s Transitions series and most recently I have posted an extended cut of that SIC paper to this blog. Those papers and the background material behind them are vital reading when it comes to understanding how these negotiations have taken place in other countries that have made the leap to independence.
In 2014 and up till now, we have approached the negotiations with a kind of implicit understanding that the UK was a reliable actor and would keep its promises. We could happily take on a portion of UK debt and exchange for a fair exchange of UK assets. We could share public services for a while and let the rUK continue to manage aspects of the Scottish civil service post-independence until our own departments were up and running. We could grant rUK our entire foreign aid budget and let them spend it on our behalf so that the beneficiaries wouldn’t be put out by our departure – the UK wouldn’t allow that funding to be misused for political projects after all.
One thing that comes through strongly in the historical precedents with these separation negotiations is that the more one party asks from or of the other party, the harder it is to achieve and the higher the price that has to be paid for the compromise. This must go double if a compromise is reached and paid for but then the other party reneges on the deal.
We’ve shown that what Scotland actually needs from rUK is comparatively slight. Our “population share” of the UK’s overall debt might total something in the region of £160 billion but the total identifiable assets that Scotland might need from rUK might only come to around £50 billion or even less – and most of that is military equipment that could be loaned or bought from elsewhere either in a pinch or if we decided that Scotland’s military needs didn’t suit what the UK had to offer (A Scotland that signed TPNW would certainly have no need for our “share” of the UK’s nuclear weapons of mass civilian slaughter, for instance).
The best way to secure Scotland’s independence in a way that both ensures that we get what we need from rUK and doesn’t leave us vulnerable to them unilaterally changing the deal at a future date is to avoid, as much as possible, giving them anything they can change. This “Zero Option” negotiating stance means using the time between the independence referendum and actual Independence Day to build up all of the civil infrastructure we need to run a nation-state and thus avoiding having to “share” or buy in civil services from rUK. It also means launching a Scottish currency as soon as possible so as to avoid being beholden either to a formal currency union or to the limits of Sterlingisation and having to plead for UK decisions on currency to not impact Scotland too much. This also means not accepting any share of UK debt that isn’t backed by an equivalent share of assets (effectively “mortgaging” the assets we need against that debt) and avoiding anything like the SNP’s current policy of an “Annual Solidarity Payment” that would see perpetual payments made to the UK without being linked to any debt that could be “paid off”. Finally, it means minimising the quantity of assets we require from the UK in the first place. As said above, many of the assets that Scotland could think about acquiring might be unfit for purpose (like big ticket military equipment like the nukes or aircraft carriers), may be near the end of their operational lifespan (like most of the rest of the navy) or may not suit the kinds of policies that Scotland might wish to introduce (the UK Government said that it couldn’t introduce a hardship payment to people because of IT issues – if true, Scotland should want to avoid inheriting the UK’s obviously broken tax IT systems).
This stance doesn’t mean total isolationism. I have no problems with Scottish and rUK collaborating on issues of common interest – indeed, I encourage it – but these collaborations must be undertaken on the basis of two equal nations working in partnership. Not as one being dragged along by the other because they control the civil servants or Scotland being hung out to dry because the UK decided once again to alter the deal.
The UK has often acted as if it was still the Imperial Majesty on the world stage and has often been accorded a level of respect and benefit of the doubt by its counterparts that it either has not valued or has actively taken advantage of. Scotland, as we enter that stage with our own voice, must be wary of making the same mistake.
“When two people decide to get a divorce, it isn’t a sign that they ‘don’t understand’ one another, but a sign that they have, at last, begun to.” – Helen Rowland
This article is an expanded version of a paper I wrote for the Scottish Independence Convention in 2021. You can read the original here but this version runs to almost twice the length and includes historical case studies of separations between countries.
Parting Ways – How Scotland and the remaining UK could negotiate the separation of debts and assets.
The negotiations around Brexit – and whether they are deemed to be a success or a failure – will no doubt raise once again arguments around how Scotland and the remaining United Kingdom (henceforth “the rUK”) will negotiate their mutual separation should Scotland choose to become an independent country in the near future. Opponents of independence already raise concerns about the potential for those negotiations to be fraught, bitter or too complex to deal with in a timely manner. Unlike the Treaty on European Union, the UK Constitution does not have an equivalent of the “Article 50” within its Treaty of Union and therefore does not have a codified mechanism to provide for Scotland to unilaterally withdraw from the Union (although it does not prohibit such an action either) and nor does it provide a structure for separation negotiations to take place such as giving an explicit trigger to begin negotiations or an explicit time limit within which to conclude them. In some ways, this is to Scotland’s advantage as the Brexit process’s two year time period for negotiations inevitably resulted in higher pressure to conclude the negotiations rapidly rather than well. However, the UK also enjoyed the ability – largely foregone – to simply not trigger Article 50 and start that countdown until a time of its choosing which, had it taken advantage of this, would have allowed the UK to prepare its own negotiating positions ahead of time rather than finding itself at the negotiating table without a clear idea of what Brexit meant.
After an independence referendum or similar democratic event, Scotland will be under immense pressure to begin negotiations almost immediately – the 2014 Scotland’s Future White Paper envisaged those negotiations beginning the week following the referendum – and so it is imperative that Scotland is fully aware of its own rights, responsibilities and asks before these negotiations begin. Scotland must also take the time now, well before a decision to become independent takes place, to plan and prepare so that it does not find itself repeating the mistakes of Brexit and being forced into a disadvantageous deal due to a lack of understanding of what it wanted and what it already had.
This paper is largely an update of my 2016 paper for Common Weal, Claiming Scotland’s Assets, and shall explain the principles of one aspect of those negotiations – the division of debts and assets between separating states – along with a choice of strategies that Scotland could hypothetically deploy as it negotiates its independence.
Did you hear about the latest story in Scottish land reform policy and the Scottish Government’s programme to restore peatlands as part of our Net Zero transition? You’d be forgiven if you didn’t. There hasn’t been much said about it in the Scottish or even in the UK media (at least until the last day or two). The American press, however, has been different. This week, the New York Times published a long-form study of what has been happening in Scotland’s peatlands lately and while I must encourage all of you to look it I must also warn that it doesn’t make for the happiest read.
“Take a census of all the congregation of the sons of Israel, by their families, by their fathers’ households, according to the number of names, every male, head by head from twenty years old and upward, whoever is able to go out to war in Israel, you and Aaron shall number them by their armies. With you, moreover, there shall be a man of each tribe, each one head of his father’s household.” – The Bible, Numbers, 1, 2-5
If you haven’t done so already, please compete and submit your census. If you have already done so, thank you – and please encourage your friends and family to submit theirs if they haven’t.
There are many reasons to ensure that you do – not least because it’s a legal obligation and should be considered as much a part of your civic duty as paying taxes, voting and serving on a jury. It is by far and away the most important statistical exercise conducted by our nation and goes a long way towards informing public policy directly and helping to correct and anchor other forms of data gathering. I make this plea as an informant of public policy and an unabashed stats geek. Neither I nor Common Weal have been paid by the Scottish Government to write this article (we wouldn’t accept such a payment even if it was offered). They haven’t even asked us to write this. We’re doing this because we understand how important it is that it gets done properly. Our own ability to create and analyse policy depends on access to high quality, accurate data and the census is one of the most important tools in our box of facts and information.
I’ve talked before about how proud I am of our Care Reform Working Group. Two years ago when the impact of the pandemic on Scottish care homes highlighted previous systemic failings in the care sector, it became clear across Scotland that the recovery from the pandemic should include as radical a reform of care as WWII and the Beveridge Report ended up being for health. We need a National Care Service. To that end, a group of some of the best minds and practitioners in the sector came together into our group and began to work on what that should look like.
(Image above: Left to Right: Des, Carmen, Colin, Marion, Craig, Nick, Mark, Kathy and Neil)