Lord Smith and his report on devolution to Scotland. Photo: Getty
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The PM, Labour, SNP and the BBC: the political muddle of Scottish devolution

The Smith Commission says Scotland should set its income tax: what is the politics behind this decision?

A colourful taste of the fraught politics surrounding the Scottish independence debate has returned. As the Smith Commission – the body tasked with deciding how much further power to devolve to Holyrood after the No vote – says Scotland should have full control over its income tax rates, questions emerge about the politics behind this decision.

How come Labour, once against such all-encompassing fiscal control, has come to agree with the Tory stance? What does such a decision mean for the SNP? And how does the new devolution plan tie in with the BBC, which was so derided during the referendum campaign by Yes supporters?
 

Labour and the Conservatives

The Labour party, though the original drivers of devolution to Scotland 15 years ago, were against Scotland having full tax autonomy. In the build-up to the referendum, when the leaders made their “Vow” for more power to Scotland in the event of a No vote, the details on this were murky because Labour disagreed with the Tories about devolving full income tax powers to Scotland.

The reasons behind their opposition are three-fold.

First, the party disagreed with the principle of splitting power in this way, fearing it would undermine the UK’s fiscal union, something the Labour MP and former Better Together campaign leader Alistair Darling has voiced today.

Second, Labour was suspicious of the Conservative-led government’s intentions of backing full income tax powers for Scotland. With Scotland having greater fiscal and welfare spending responsibility, it would have to make the difficult, and often unpopular decisions, which would mean there would be less blame on Westminster and its austerity drive.

Third, giving such extensive economic autonomy to Scotland would raise the “English votes for English laws” question, where it would be argued by the Tories that Scottish MPs should no longer be able to vote on English tax matters. Labour would fear this because such a system would scupper a future Labour government, particularly one with a small, or no, majority. If its Scottish MPs are unable to vote through its budgets, it would be severely crippled. Tory MPs calling to restrict Scottish MPs’ voting rights have renewed the momentum today begun by David Cameron's speech the morning after the referendum result, when he said: "We have heard the voice of Scotland and now the millions of voices of England must be heard," 

Now that the Smith Commission has made its recommendations, Labour has had to do an about-turn. Jim Murphy, the Labour MP and candidate for leader of Scottish Labour, told the BBC this morning that he had “changed my mind” on the matter, due to listening to the “wishes of the people of Scotland”. “I’ve changed my mind,” Murphy said. “ . . . the Labour party and others changed our mind. We reflected on the wishes of the people of Scotland. Because it wasn’t enough simply to win the referendum. We had to bring Scotland together.”

Although Darling, a high-profile Labour figure, is today expressing his reservations with the Smith Commission’s findings, and former Labour Prime Minister Gordon Brown has previously called such a plan a “Tory trap”, it looks like Labour will have to come round to Murphy’s line and accept the Commission’s recommendations. Not least because the party needs to win back support in its Scottish seats, and such measures are popular.

Such measures are also in keeping with the spirit of the “Vow”, the promise the three Westminster party leaders made pre-referendum to give Scotland more power. This is also problematic for Labour. Having spoken to a source close to the Commission, I reported in October that Labour figures on the Smith Commission resented Brown’s 11th-hour “home rule” intervention in Scotland, because it meant they had to fall in line with further devolution to Scotland than they were comfortable with. The irony is that Brown opposed handing over full income tax control, but the zeal of speechmaking in an attempt to save the Union meant the Scottish people expected a great deal more than he meant.

 

The SNP and the BBC

What does the SNP think about the Smith Commission’s report? Other parties fear such powers would bring independence in by the “backdoor”, but is it really positive direction for Scotland’s nationalists?

If it is, that isn’t the SNP’s line. Although welcoming any new powers to Scotland, it is suggesting that the Commission’s package does not amount to the “home rule” the Scottish people were promised. The BBC reports the First Minister Nicola Sturgeon commenting that it is ultimately disappointing:

70 per cent of our taxes continue to be set at Westminster, 85 per cent of social security controlled at Westminster – this parliament responsible for less than half of the money we will spend . . . It's not so much the home rule that was promised – in so many respects, it's continued Westminster rule.

However, a small triumph for the SNP could be what the Smith Commission means for BBC Scotland. In a revealing piece by an insider on the website NewsnetScotland this week, the big question about the Commission is: Will there be any sort of devolution of broadcasting?

 . . . there is a working possibility that the SNP contingent on the commission may sneak in an apparently anodyne small measure, perhaps in exchange for dropping its insistence on something more high-profile.

The only suggestion that matters to the BBC is the possibility that Scottish Parliament Committees might be empowered to order BBC executives to attend and answer questions, as their counterparts at Westminster can do. It’s that prospect which is causing bums to squeak here at “PQ” [Pacific Quay] . . .

If the Smith Commission recommends devolving any part of the regulation of broadcasting, there is a real possibility that BBC Scotland executives would have to answer questions about their behaviour . . .

If the Smith Commission puts broadcasting devolution into the realms of possibility, heads may roll quickly, and you may even see a BBC re-think on the SNP’s role in the pre-election BBC Leaders’ Debate strategy.

And here’s what the Commission report says:

There will be a formal consultative role for the Scottish Government and the Scottish Parliament in the process of reviewing the BBC’s Charter. The BBC will lay its annual report and accounts before the Scottish Parliament and submit reports to, and appear before, committees of the Scottish Parliament in relation to matters relating to Scotland in the same way as it does in the UK Parliament.

This could give the SNP – whose Yes campaigners protested against the BBC’s coverage of the referendum campaign – a chance to scrutinise the broadcaster that its supporters so vehemently fell out with.

Another political tangle worth noting here is that there is a similar antipathy on the Unionist side. Many pro-independence figures claimed they experienced bullying and aggression from Yes campaigners during the campaign, and there are some very high up in the Westminster establishment who blame the BBC for refusing to report the extent of this in its attempt to remain impartial. One cabinet minister tells me this aspect of the campaign “has fundamentally shaken my faith in the BBC”.

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With Labour siding with the Conservatives on devolution to Scotland, and some Westminster figures' disappointment in the BBC reflecting the Yes campaign's hostility, it's clear the Smith Commission report is the product of a very tricky political knot – which this report comes nowhere near to untangling.

Anoosh Chakelian is deputy web editor at the New Statesman.

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All doctors kill people – and the threat of prosecution is bad for everyone

We must recognise the reality of medical practice: just because a doctor makes a mistake, that doesn’t mean they’ve all broken the law. 

On 15 November the Court of Appeal quashed the 2013 conviction for gross negligence manslaughter (GNM) of a senior consultant surgeon in London, David Sellu. Sellu, who had completed his prison term by the time the appeal was heard, will never get back the 15 months of his life that he spent in jail. Nor will the personal and family trauma, or the damage to his reputation and livelihood, ever properly heal. After decades of exemplary practice – in the course of the investigation numerous colleagues testified to his unflappable expertise – Sellu has said that he has lost the heart ever to operate again.

All doctors kill people. Say we make 40 important decisions about patients in a working day: that’s roughly 10,000 per annum. No one is perfect, and medical dilemmas are frequently complex, but even if we are proved right 99 per cent of the time, that still leaves 100 choices every year where, with the benefit of hindsight, we were wrong.

Suppose 99 per cent of those have no negative consequences. That’s still one disaster every 12 months. And even if most of those don’t result in a fatal outcome, over the course of a career a few patients are – very regrettably – going to die as a result of our practice. Almost invariably, these fatalities occur under the care of highly skilled and experienced professionals, working in good faith to the very best of their abilities.

If one of these cases should come before a crown court, the jury needs meticulous direction from the trial judge on the legal threshold for a criminal act: in essence, if a doctor was clearly aware of, and recklessly indifferent to, the risk of death. Sellu’s conviction was quashed because the appeal court found that the judge in his trial had singularly failed to give the jury these directions. The judiciary make mistakes, too.

Prosecutions of health-care professionals for alleged GNM are increasing markedly. The Royal College of Surgeons of England identified ten cases in 2015 alone. This must reflect social trends – the so-called “blame culture”, in which we have come to believe that when a tragedy occurs, someone must be held responsible. In every one of these cases, of course, an individual’s life has been lost and a family left distraught; but there is a deepening sense in which society at large, and the police and Crown Prosecution Service (CPS), in particular, appear to be disconnected from the realities of medical practice.

Malpractice investigation and prosecution are horrendous ordeals for any individual. The cumulative impact on the wider health-care environment is equally serious. In a recent survey of doctors, 85 per cent of respondents admitted that they were less likely to be candid about mistakes, given the increasing involvement of the criminal law.

This is worrying, because the best way to avoid errors in future is by open discussion with the aim of learning from what has gone wrong. And all too often, severely adverse events point less to deficiencies on the part of individuals, and more to problems with systems. At Sellu’s hospital, emergency anaesthetic cover had to be arranged ad hoc, and this contributed to delays in potentially life-saving surgery. The tragic death of his patient highlighted this; management reacted by putting a formal rota system in place.

Doctors have long accepted the burden of civil litigation, and so insure themselves to cover claims for compensation. We are regulated by the General Medical Council, which has powers to protect patients from substandard practice, including striking off poorly performing doctors. The criminal law should remain an exceptional recourse.

We urgently need a thorough review of the legal grounds for a charge of GNM, with unambiguous directions to the police, CPS and judges, before the spectre of imprisonment becomes entrenched for those whose only concern is to provide good care for their patients. As Ken Woodburn, a consultant vascular surgeon in Cornwall who was accused and acquitted of GNM in 2001, has said: “You’re only ever one error away from a manslaughter prosecution.”

This article first appeared in the 01 December 2016 issue of the New Statesman, Age of outrage