Why do we keep losing the argument? A response to Trump’s victory.

For the third time in recent memory, I’ve woken up from a restless night to the news of a political outcome that feels more akin to a dystopian nightmare than reality.

My heart goes out to my friends and family in America and beyond who are crushed, and in despair at the result of the Presidential election. I know and deeply resonate with the sudden, terrible feeling that you don’t live in the country you thought you did; the realisation that the majority of your fellow country-people do not share the same hopeful and inclusive perspective that you hold as such an integral part of your identity. It’s important to take the time to mourn that loss, and we are grieving alongside you.

When the initial shock clears (and it will), we need you to help us take a step back and work out why we on the socially liberal side of the spectrum keep ending up on the losing end of these political outcomes. Why is it such a surprise to us that the results are what they are? How can so many people feel this way, and take positions that we find untenable, and us not realise?

I’ve had time to reflect on some of this since the Scottish independence referendum in 2014, and then the recent Brexit vote. The reason these results seem to come completely out of the blue to so many of us isn’t so much because of the existence of a ‘silent majority’… you only need to go down to any pub or bar to hear the exact same views espoused by Trump and Farage… Instead, the real reason is that we have walled ourselves off from these irritants, creating quasi echo chambers where our only associations are those who either agree with us, or who we can have coherent conversations. The distinction there is important – as the problem is comprised of two elements: We avoid interacting with those who hold these opposing views as they seem so inconceivably awful, and when we do, we don’t even know how to engage with them properly.

Deleting people from your Facebook for posting racist, sexist, or otherwise derogatory and intolerant statements might well be part of the issue (as people are so keen to point out), but it is often the only thing that can reasonable be done to avoid getting involved in daily arguments. There is no escaping the fact that the recent wave of populism often seems completely blind to any sort of reasoned debate or discussion, and trying to get a cohesive position from many can be impossible, and frustrating. Asking somebody to provide evidence for their claims, or point out inconsistencies in their logic leads nowhere but anger, and whilst it might well win the argument, it isn’t winning anybody over.

I don’t believe that what we are witnessing is some sort of a working class movement, as some have claimed, and it certainly isn’t a battle between left and right. This is a new kind of class movement, one where those who feel disenfranchised and disempowered, and who may not necessarily be able to articulate exactly why they feel the way they do are attempting to wrest some sort of control out of a system that has failed them. Arguably though, the biggest failiure has been the ability of those of us who hold apparently ‘enlightened’ views to even begin to effectively communicate with these people, or appreciate the real issues that they face. They are real people in our communities, but ones whose views we have chosen to try and avoid conflict, which instead has only served to facilitate their growth.

I’m not sure how we do this, but if we are ever going to turn things around, we need to find ways to both interact with those on the other side of the fence, but also to engage with them. Not avoiding the discussions is probably an important first step.

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High Court’s Article 50 judgement is best outcome for all

For the first time in a while, I woke up to headlines that gave me a glimmer of hope that not all has completely gone to the dogs:

Screen Shot 2016-11-03 at 12.36.32.png

I took the time to read through the full judgement (PDF), which is something of a master class in British constitutional law and statutory interpretation; full of exactly the points that I and other legal commentators have been making since the EU referendum was announced relating to British Parliamentary sovereignty.

screen-shot-2016-11-03-at-13-42-36

Specifically, the judgement superbly outlines and solidifies limits on the Royal Prerogative, which is a power oft-criticised for its vast, unchecked reach, and past abuses.

“The powerful constitutional principle is that the Crown should not have power to vary the law of the land by the exercise of its prerogative powers.”

Essentially, the judgement was that based on the Diceyan principle of Parliamentary Sovereignty; that it is the British Parliament who must give the Article 50 notification; not the Government via the Royal Prerogative.

screen-shot-2016-11-03-at-13-39-59

Despite the strong, and reasoned nature of the judgement, the response from those who voted to leave has been almost unbelievable, with Conservative MPs declaring that the Government should not be bound by unelected judges (which is literally, the entire basis of the rule of law), and that the decision to require Parliament’s involvement is ‘disgraceful’.

Dictionary definition of contradiction in terms.
Dictionary definition of contradiction in terms.

To be clear: today’s judgement was not about whether or not we leave the EU; instead, it simply re-asserted the sovereignty of the British Parliament, which is exactly what the leave campaign was arguing had been lost in the first place. If Parliament does decide to completely refuse to trigger Article 50, then that would arguably be a disgrace. The referendum was held, and the outcome should be respected; something that I have repeated time and again on this blog. However, Parliament should be involved.

The UK voted to leave the EU, yes, but the kind of exit was never specified. We were faced with the prospect of having the most extreme form of severance possible, thrust forward at the whim of an unelected Prime Minister. Instead, now we have Parliament involved in determining the kind of exit.

The Government argued in it submissions that Parliament would most likely have the chance to vote on any deal that was reached with the EU before it was implemented, and that it wasn’t necessary to have Parliamentary approval to trigger Article 50. The Court quite sensibly rejected this notion, on the basis that by the time any such vote came around, there is the real chance that the time limit imposed by the European Treaty would run out, and leave us with no rights or compromises.

screen-shot-2016-11-03-at-13-14-15

By all means, get angry if Westminster completely refuses to ever trigger Article 50, but to be outraged at the principle that the British Parliament should be involved in the implementation of one of the most significant political processes of our lifetime is plainly just nonsensical. To reiterate: today’s question isn’t about whether or not Article 50 should be triggered, but who has the power to do it – on behalf of the people.

Of course, all of this is subject to a final appeal to the Supreme Court, so we will see what happens in the next leg.

I’ll wrap up with this text, taken from the Fire Brigades Union case, and quoted in today’s judgement:

R v Secretary of State for the Home Department ex parte Fire Brigades Union [1995] 2 AC 513
R v Secretary of State for the Home Department ex parte Fire Brigades Union [1995] 2 AC 513

A Hyper Key Solution for Mac OSX Sierra

In the past I’ve mentioned how I have streamlined a lot of the everyday tasks I have to do through the use of various keyboard-centric apps such as Alfred and Keyboard Maestro. One of the linchpins of my setup is the use of something called the ‘Hyper Key’, which is essentially re-mapping the fairly useless Caps Lock to act as a super-function key, letting you trigger all sorts of shortcuts and different macros.

This particular configuration relied on two bits of software, called Karabiner and Seil. However, earlier today I was forced into upgrading from OSX El Capitan, to OSX Sierra, to fix an issue with some other apps that I was having. Of course, upon upgrade, I discovered that the Karabiner/Seil combination no longer functioned properly, and there was no real solution using the same tools. Sigh.

After a bit of digging, I discovered a way to re-enable the same functionality, albeit with a bit of jiggery pokery. Here’s how I did it:

  1. Install Hammerspoon. This is a piece of software that allows for automation, acting as an interface between a scripting engine called lua, and the OS itself.
  2. Install Karabiner Elements. This is a version of Karabiner that works with OSX Sierra. The latest DMG is available here.
  3. Under OSX Keyboard System Preferences pane, change the Caps Lock Action to ‘None’, to allow Karabiner to control it.

    Screen Shot 2016-10-28 at 21.12.04.png

  4. Set up Karabiner Elements to map the caps_lock to F18. You can also do this by adding in a config file to ~/.karabiner.d/configuration/karabiner.json, but it’s so easy to do manually that it seems overkill to go that route.

    screen-shot-2016-10-28-at-21-09-05
    How Karabiner Elements should look
  5. Now, load up a lua config file into Hammerspoon, by copying it to ~/.hammerspoon/init.lua – see below for examples.

The config file I am using is available over on GitHub here. It will re-enable the Hyper Key function for all a-z and 0-9 keys, as well as a couple of miscellaneous ones that I use, though it should be self explanatory on how to add new ones.

One thing to watch out for is that any Hotkeys set up in Alfred to launch applications with the Hyper Key don’t seem to work any longer, so for that, one way to get them to launch is to add a specific mapping in the init.lua configuration. Here’s what I’ve done to get 1Password to launch with CAPS+O:

-- Code to launch single apps that Alfred used to handle.
-- Hat-Tip: https://gist.github.com/ttscoff/cce98a711b5476166792d5e6f1ac5907

launch = function(appname)
 hs.application.launchOrFocus(appname)
 k.triggered = true
end

-- Keybinding for specific single apps.

singleapps = {
 {'o', '1Password 6'},
}

As you can see from the above, I obviously didn’t write the code to make all of this work. Credit for that goes to a combination of ttscoff and prenagha; I just tweaked it for my own simple use case and wrote this up in the hope that others might find it easy to follow.

Good luck!

Another example of inconsistent British immigration law

Today I came across yet another example of how the British approach to immigration law is completely inconsistent, and penalises those of us with non-EU spouses disproportionately.

There are various ‘global entry’ style schemes where frequent travellers can pay for additional background checks, which lets them go through an expedited customs and immigration process when travelling to certain countries.

Here’s a recent explanation of how Canadian and US nationals who are a member of this scheme can get preferential treatment when coming to the UK:

Registered Traveller was launched by the UK Border Force to give faster and more convenient entry to the UK for eligible nationals from the United States and Canada. Membership of Registered Traveller costs £70 in the first year and £50 per year thereafter.

Membership of Registered Traveller includes the following benefits:

  • Access to ePassport gates
  • Use of the UK / EEA queue
  • No requirement to complete a landing card on arrival in the UK
  • No routine credibility interview with a Border Force officer.

All of that sounds great, until you consider how this approach differs from the way we treat British citizens who have non-EU spouses.

For example, my American wife has lived in the UK for the past 2 years. We have gone through two (soon to be three) separate visa processes, paying thousands of Pounds, and providing an incredible amount of evidence about our backgrounds, finances, and relationship. Yet, she still has to fill out a landing card on arrival in the UK. This landing card includes questions like: “How long do you intend to be in the UK?”, which is totally inappropriate for residents – but who cares about that?

That’s the logic of British immigration law. Give foreign business travellers a pass on basic checks if they spend fifty quid a year and do an interview, but completely shaft British citizens and their sposes that go through the most thorough of application processes and spend thousands of Pounds.

Makes you feel really proud to be a British citizen.

Common Brexit Legal Myths Debunked

Legal myths and inaccuracies have been rampant in the days following the outcome of the EU referendum. I collected these as I sat sipping leche de pantera in sunny Barcelona, and have put together an explanation for each of the biggest howlers below.

‘The referendum was only advisory, not legally binding.’

No, the referendum is not legally binding – but that should be of no surprise, as no referendum in the UK ever is.

The response from a lot of folk at this point is to reference the 2011 referendum on whether or not to adopt a system of proportional representation for Westminster. This is thought of as a referendum where the result would be ‘legally binding’ on Parliament. Part of the relevant language of the Parliamentary Voting System and Constituencies Act 2011 that lends itself to this view is:

8Commencement or repeal of amending provisions

(1)The Minister must make an order bringing into force section 9, Schedule 10 and Part 1 of Schedule 12 (“the alternative vote provisions”) if—

(a)more votes are cast in the referendum in favour of the answer “Yes” than in favour of the answer “No”, and

(b)the draft of an Order in Council laid before Parliament under subsection (5A) of section 3 of the Parliamentary Constituencies Act 1986 (substituted by section 10(6) below) has been submitted to Her Majesty in Council under section 4 of that Act.

(2)If more votes are not cast in the referendum in favour of the answer “Yes” than in favour of the answer “No”, the Minister must make an order repealing the alternative vote provisions.

(3)An order under subsection (1)

(a)must bring the alternative vote provisions into force on the same day as the coming into force of the Order in Council in terms of the draft referred to in paragraph (b) of that subsection, but

(b)does not affect any election held before the first parliamentary general election following that day.

Rather than binding Parliament to a decision, this simply sets out the process by which they would be expected to implement the result in a statutory form. That in of itself does not impose a legal obligation on Parliament to actually do so. Even if it did, the doctrine of Parliamentary Sovereignty means that it is impossible for Parliament to bind itself in such a way. Just as the statutory recognition of the Scottish Parliament’s ‘permanence’ is symbolically important but legally meaningless, the same applies here. Politically, expectations may be set by statutory wording, but legally there is absolutely nothing to stop Parliament ignoring the result of any referendum.

The nature of the referendum does come into play when considering another one of the myths though, so we will come back to it later on.

From my own personal, political standpoint (rather than a legal one):

When it comes to the ‘advisory’ part of the claim about the referendum, it is a word that has conveniently only cropped up in the aftermath of the result, usually to aid a particular position. Changing the expectation of referenda in this way is a dangerous game. We should not start to assume that a referendum result will not be implemented by default, and that the Electorate are only giving their ‘opinion’, just because it technically isn’t legally binding under the constitution. If Parliament wish to ignore the expressed will of the people, we should not let them away with the political consequences of doing so.

At no point in the lead up to the EU referendum was it ever suggested that the result would only be ‘advisory’. To pretend otherwise would be a disgrace, and do a massive disservice to our Democracy. Imagine the fallout of Scotland had voted to leave the UK, only for the outcome to be dismissed on the basis that the referendum ‘was only advisory’.

The Scottish Parliament can veto the referendum result.’

Ah, wouldn’t it be glorious if it were true. Sadly, it’s not. This is a myth that appears to be caused, or at least perpetuated by the media’s misleading coverage.

The Sun's ill informed title
The Sun’s ill informed title. What a surprise.
Misleading headline from the Independent
Misleading headline from the Independent
The BBC's original headline
The BBC’s original headline

It’s worth noting that the BBC have since updated the story’s title to be more accurate:

BBC's updated veto title

There are some brilliant responses already that deal with this question in depth. As great as they are, they tend to approach things in a more academic fashion – which isn’t necessarily all that clear for those without a legal background. For this reason, I think it’s worth reiterating the position in a more straightforward fashion.

In short, the Scottish Parliament has no legal power to ‘veto’ any decision of the British Parliament – and particularly not this one. Westminster is sovereign, and can make or unmake any laws it likes, including the very existence of the Scottish Parliament if it so chose. (Again, see my previous blog on this very topic for more). There would of course be political fallout to any of these decisions, but legally nothing would stand in their way.

If there is no veto, what was all the media fuss about then?

There is a ‘constitutional convention’ that Westminster would seek legislative consent from the Scottish Parliament before legislating on any area that would affect devolved matters, which can be thought of as a sort of ‘gentleman’s agreement’; an understanding that the elected representatives of Scotland should at least be consulted before Westminster exercises their sovereign power to over-rule them. This could be (shakily) equated to a parent choosing to knock before entering into their teenagers’ bedroom. Nothing would stop them from waltzing in unannounced, but they make the choice not to out of respect for the other person’s individual autonomy. If parents continually disrespect this unwritten social understanding, then the overall relationship will suffer as a result.

In the interview with Nicola Sturgeon, you will notice that she never once mentioned the word ‘veto’. Rather, she stated that she would ask the Scottish Parliament to refuse to give their ‘legislative consent’, something which they are perfectly entitled to do. This may well pose a significant political and constitutional issue for Westminster, but nothing would prevent them from pulling out of the EU anyway.

As it stands, there is a very real chance that the Scottish Parliament would never have the chance to refuse to give their legislative consent anyway. If Westminster were to vote on the issue, this would be far more likely, but…

‘To leave the EU, the British Parliament will have to vote on it.’

Nope.

The idea here is that in order to give the now infamous Article 50 notification to commence the process of the UK leaving the EU, it will have to be approved by the Westminster Parliament – and potentially even the House of Lords. Those looking to find a way to avoid exiting the EU are hoping that since a majority of MPs are opposed to leaving, they will refuse to do so, scuppering the whole thing.

What people who bring this up forget is the existence of the ‘Royal Prerogative’, a curiosity of the British constitution that allows for action to be taken (usually on the advice of a Prime Minister) without requiring Parliamentary assent. This is the norm for international treaties, and it’s precisely the mechanism David Cameron was expected to employ before he dropped the mic and kicked the ball down the field for somebody else to deal with.

Parliament could block the repeal of the European Communities Act 1972 when it came time to do so, but if the Article 50 notification process had already been invoked, this would be completely pointless. After 2 years (unless there was a unanimous agreement to extend this period), we would be out of the EU under European law, whilst still domestically bound by the requirements.

‘Under European law, the result of the referendum is invalid as less than 65% of those who voted did so to leave.’

This particular idea seems to have come from people desperately reading various laws to come up with some way to nullify the vote’s outcome. It’s also completely incorrect, resulting from a simple misinterpretation of the law.

Edit: Apparently this error is the basis of a petition signed by over 4 million people to call for a second referendum. Even more important to clear it up.

The wording that gives rise to the confusion is found in our old friend Article 50 of the Treaty of the Functioning of the European Union. Section 4 states:

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

and Article 238(3)(b) says:

(b) By way of derogation from point (a), when the Council does not act on a proposal from the Commission or from the High Representative of the Union for Foreign Affairs and Security Policy, the qualified majority shall be defined as at least 72% of the members of the Council representing Member States comprising at least 65% of the population of these States.

Rather than imposing any requirement on the percentage of people who have to vote to leave the EU in a Member State, this sets out the framework for how the European Council will go about negotiations should that Member State decide to leave. The 65% figure relates to the makeup of the group that will enter into those negotiations.

Further, Section 1 of Article 50 TFEU is pretty clear:

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

If the UK decided to draw straws, or have a haggis flinging competition to decide whether or not to leave the EU – that would be perfectly acceptable (so long as it complied with other general EU law principles). The point is that the decision making process is something that is entirely up to the Member State in question to determine. Again, this provides a neat segue into the final incorrect assertion:

‘The EU will force the UK to leave if we don’t trigger Article 50.’

If you listen to the President of the European Commission, Jean-Claude Juncker, it would sound like the UK is about to be kicked out of the EU, even if it doesn’t invoke Article 50. However, there is nothing in the European treaty that allows for that possibility.

As things stand, the UK is arguably still involved in the decision making process of whether to leave the EU or not, in accordance with the British constitution. The referendum is hugely important, and Westminster should ignore it at their peril – but given that it isn’t legally binding on the British Parliament, then it means absolutely diddly squat under European law.

Until the Article 50 notification is invoked, legally absolutely nothing has changed between the UK and the EU. This is why Juncker’s smart-ass riposte to UKIP in the European Parliament isn’t all that clever at all. Politically, pressure is mounting, and feelings are obviously running high, but the UK remains a full Member State – something which everyone would do well to recognise.

If you’re looking for some good legal resources (some with particular political slants), check out the following blogs:

https://publiclawforeveryone.com/

http://barristerblogger.com/

http://lallandspeatworrier.blogspot.com/

http://jackofkent.com/

Scotland, get ready to fight

Earlier today, we woke up to the terrible realisation that the UK had narrowly voted to leave the European Union. This was an outcome that I ultimately expected, but facing the stark reality of the situation has still left me feeling numb, and in shock. Opening my eyes to see ‘Nigel Farage declares independence day’ and ‘British Pound drops to a 31 year low’ on my phone’s lock screen is something I’m not sure I’ll ever be able to forget; reminiscent of a dystopian nightmare rather than reality.

To make things worse, the dogged, often proud ignorance of those smugly celebrating victory in the immediate aftermath has been staggering. As I write this, I am overlooking the City of Barcelona, and being here only renders the sadness even more palpable, and even harder to believe. 

However, this is not a drill. This is the real deal. Like it or not, the U.K. Has voted to leave the EU, and the question is what we are going to do about it now.

Many legal commentators have pointed out that the referendum isn’t binding. Whilst technically correct, this ignores the political reality, and does nothing but give a false sense of hope to those who are hurting most at this point. Of course the legal position should be stated, but it must be done holistically, not in a theoretical vacuum. There is no realistic chance of Westminster refusing to honour the outcome, nor should there be. I despise and despair at how the vote went, but the result must be respected. 

Scotland’s First Minister Nicola Sturgeon has announced that she plans to prepare for the possibility of a second Scottish independence referendum, in response to 62% of those who voted choosing to remain. She is right to do. The SNP stood for election to the Scottish Parliament just a few months ago with a clear indication that they would seek another referendum in this precise scenario. There are many who will not like this, but the Scottish people chose to return them to power in Holyrood knowing this. Just as the result of the EU referendum must be respected, so must that be.

We were told during the last referendum that ‘the only way to ensure Scotland’s continued membership of the EU is to vote to remain part of the U.K.’. For those of us who do not wish to see us removed from the EU despite a majority vote to remain, independence is the only possible solution. If that last shred of hope is to be realised, we need to be prepared for the fight of our lives. This is it. There will be no third chance. 

The last time we had a chance to vote on Scotland’s independence, it caught many of us by surprise. I don’t think I’m alone in feeling like even the vote itself couldn’t possibly be actually happening, up until the last few weeks. That is not the case this time around. We have woken up; we know the score, and if we want to have any chance of success we need to start preparing right now. 

Yes, we were told that a vote for Scottish independence would mean economic chaos… Leaving the EU… Cutting off ties with our neighbours… Jumping into the unknown… and yes, all of those arguments seem null given the inevitable Brexit fallout. However, we cannot rely on this alone to make our case. We need to be smarter in how we approach things, and have better, concrete answers for issues like currency. I have faith that Nicola Sturgeon and the SNP will be able to put together a solid case, but it’s up to us to make it compelling. 

Here are some general things that we need to start doing, from this point on:

  • Push for Scottish independence. We cannot rely on Nicola Sturgeon and the SNP alone to call for a second referendum. If we want it, we have to demand it. It’s now or never. Write to your MSP… Tweet them… Sign the SNP’s pledge of support. Do as much as you can to demonstrate the appetite that exists. 
  • Nail your colours to the mast early. In the first referendum, many of us waited far too long to express and articulate our positions, in order to avoid causing problems with friends or family. By the time we did, it was too late. This time, we have to speak up loudly, firmly, but politely. People will value what you think, and this is too important an issue for you not to be heard. Set up your own blog, write letters to newspapers, create music or other art… Just make sure you speak up.
  • Understand your arguments. It’s not enough just to want independence and argue with whoever disagrees. Get informed and understand why you believe what you do, and be able to articulate it. Don’t just reel off platitudes; be smart.
  • Challenge misinformation. Far too often during the EU referendum, we failed to challenge those making sweeping statements, in order to avoid the potential conflict that would come along with engaging. As difficult and frustrating as it may be, that has to change. If somebody says something that you know is wrong, speak up. If you aren’t sure what the answer is, but your gut tells you that something isn’t right, ask for evidence. Challenge others to back up their claims and explain them – firmly, but politely. This applies equally to our own side of the debate as it does to those who disagree with us. 
  • Think critically. Not everything the SNP does is good. Not everything The Tories do are bad. Don’t accept things just because other independence supports do. Don’t jump on the bandwagon. If people are criticising an article on Twitter, read it before commenting. Don’t just swallow what everybody else has, and don’t buy into the self aggrandising myths of the Scottish new media – including Bella Caledonia and the ilk. 
  • Keep the heid. Be kind. Be prepared to accept when you are wrong or someone has a better argument than you. Make concessions and see from the opposite point of view. Challenge misinformation but don’t resort to attacking other people. Do not vilify those who disagree. Independence will never be reached unless we win over hearts and minds. Labelling people and dismissing them will do nothing to aid that. 

Here are some specific challenges I think we have to overcome, and need to keep in mind: 

  • Independence is not in the bag. The big yellow map of Scotland from the EU referendum is undeniably symbolic, and a comfort to those of us who are hurting – but we have to remember that it’s not the full story. 62% voted to remain in the EU, and not all of them will automatically support an independent Scotland. There’s a long way to go, and we have to never forget that. 
  • Explaining why we want to be part of the EU. This is something we have failed to articulate in a way that is easily accessible to those not as invested in this debate. We need to find creative and clear ways of explaining why there is a difference between voting to be a sovereign nation, and being part of the European Union. It isn’t just about not having other people tell you what to to do. This is a challenge that will come up time and time again and we need to have s good response. 
  • Avoiding the echo chamber. Sharing on Facebook is fine, but experience has shown that we primarily end up talking to those who share our views rather than anybody who may oppose them. We need to find ways to have meaningful conversations with those outside of our echo chambers.

I’m tired, and I’ve lost three drafts of this post already trying to type it on my damn phone… But we aren’t going to get another chance at this. We need to be prepared for the fight of our lives, we need to be smarter and kinder than we were before – and we need to do it now.