Do you really have confidence in Slater?

Sometimes my son asks his big sister to borrow something and she says no. She’s a very reasonable girl, so mostly it seems fair but on occasion I think she’s been a little unfair and could perhaps give him a shot of what he wants. However, that doesn’t mean he can break into her room and take it anyway.

It says something about the current state of indy politics that I need to use this analogy to try to get you to see why the Tories vote of no confidence in Lorna Slater was a long way shy of illegitimate. (The SNP/Greens don’t believe in accountability for themselves, so were always going to whip through Slater’s survival.)

The defensive argument here was that the Scottish Government scheme would have been valuable and necessary and so it is wrong for the UK to block it. That may well be the case (though I’m going to come to why I wasn’t heartbroken in a minute), but even if there is some moral basis in this, it has absolutely no legal basis.

Legally, it was known in 2020 that this piece of legislation was almost certain to infringe into reserved issues. It was perfectly reasonable to expect (or at least hope) that the UK Government would see sense and allow the scheme to go ahead. And then we get to the but…

The ‘but’ is a substantial one. But the scheme would not be legal unless the UK granted the permission for that scheme to go ahead. Imposing that scheme on others is not legal. Requiring others to pay to implement the scheme prior to its legality being confirmed is in turn not legal – hence it is almost certain that there will be big compensation claims. You will see whose fault this is when the courts make their ruling

And I’m sorry, but those claims are fair enough if you ask me. I’m not much of a one for defending corporations but I was in a Lidl car park I’d been at many times before and there was a big new building taking up a substantial area of available parking. I couldn’t work out why until I looked in the window and realised it was a reverse vending centre with storage. Clearly a substantial investment was made.

So, the fact that the Scottish Government pressed on with this scheme utterly regardless is seriously problematic. It chose to force businesses to incur costs that it knew would be imposed illegally if it didn’t get the permission. That is very, very bad government.

All of the Scottish Government’s complaining and spinning on this is of no consequence whatsoever. Lorna Slater claims that this fell apart because of an ‘eleventh hour’ intervention by the UK. That is some stretching of reality; in fact the SNP created an artificial deadline to try and strong-arm the UK into granting the necessary permission, and their bluff failed.

To return to the analogy, this is like my daughter telling her wee brother that she’ll have a think about whether she will let him borrow the item and him saying ‘well I’m giving you until 3pm and then I’m going to take it anyway’. His words mean nothing; it is her object and if she wants to be unreasonable she can decide when she will give him an answer, or not, about its use.

That’s the thing about law – it’s not about who is the most reasonable, it’s about who has the rights and who doesn’t. The Scottish Government didn’t have the right to do what it did and so it and it alone is 100 per cent responsible in legal terms for everything it did and everything that resulted.

So, let’s ask the following question; my son takes the thing from his sister and breaks it. Is he off the hook if his sister was being a wee bit unreasonable? Nope, he’s going to lose his screen time. Because actions have consequences and because his actions were in breach of the rules, those consequences fall on him.

That I need to spoon-feed this basic explanation of constitutional politics is worrying. Whether Alastair Jack is a horrible man or not, whether his objection was reasonable or not, whether the Tories are baddies or not, that changes nothing. It was his right to say no and it was the Scottish Government’s duty to comply.

The only question that remains is who should pay? Who should pay for this? Should everyone involved simply take the hundreds of millions of pounds of compensation likely to be required from the NHS budget, leaving you in pain on a waiting list but with them pocketing their salaries and getting promoted like nothing happened? If you honestly think the answer to this is yes, my son would like a word with you.

So who should pay the price? Let’s start with the scheme itself and why I’m a long way short of heartbroken it has fallen apart. Because what this scheme was really about was producing a third-rate bottle collection scheme (no refill, just crush or melt) and slyly using it to privatise Scotland’s entire recycling industry. At the cost of many tens of millions of pounds to the public purse – before compensation claims.

Right now recycling is a public utility carried out by local authorities. Had the Scottish Government got away with this it, all the contracts would have gone to a private company whose Chief Executive earns twice as much as the First Minister and whose board would have been almost all corporations. It was an abomination of public service in Scotland.

This is the doing of Zero Waste Scotland, a public agency which is far, far to close to industry and ideologically believes that the circular economy was for the private sector alone and that the role of the public was to get out the way. That was what resulted in this poor-quality scheme, but they are not responsible for its collapse.

Then there is Circularity Scotland. It is that company which was going to rake in the profits from this privatisation (I’d love to know how many people in Zero Waste Scotland got lucrative jobs there…) and is one I find pretty distasteful all round. But Circularity Scotland was responsible for its operation, not its implementation and certainly not for the legislation.

Today the administrators were called in. That company is no more and everyone who lost a job there is also a victim of this affair. So who exactly is responsible? I have regularly flagged up my bemusement at how dreadful the Scottish civil service appears to have become and I cannot for the life of me work out why there were not giant red flags being flown everywhere by officials.

In fact if you listen closely, those close to the SNP half of the government claim those red flags were there aplenty and Lorna Slater just ignored them all (there is a fair bit of blame-pinning going on here). But either way, while I’d like to know what urgent review is being done in the civil service, it is protocol that it is not the civil servants who pay the price for enacting government policy.

Nope, the convention is clear; it is the politician who is ultimately responsible (unless there was criminality or negligence elsewhere which hasn’t been alleged here). So who should that be? Well, here Lorna Slater is certainly not wholly responsible; this scheme was something of a basket case before she took over.

And yet there is a difference between legislating badly and legislating illegally. The real breach of legal responsibilities came when private businesses were compelled to spend money on a scheme which wasn’t legal. The rest is incompetence, but the ‘forced investment’ is what is going to cost public services dear. And that happened on Lorna Slater’s watch. She is responsible for that.

So what exactly are we arguing over here? Whether the scheme is legal or not? Because it isn’t. Whether the UK is responsible for that illegality? Because it is responsible in the sense that it ensured the scheme was illegal, but not in the sense that it did anything wrong or broke any rules. It can’t be held to account for this.

The scheme was not legal, induced costs and the Scottish Government through Lorna Slater is ultimately and entirely responsible for this. So once again, what are we debating here? The only remaining question is whether this is what used to be called ‘a resignation issue’ (no-one but no-one seems to resign over ‘resignation issues’ any more).

Is this mess bad enough and did it involve sufficient severely deficient decision-making to raise questions as to whether the person involved is fit for office? That’s the question. For my money it is. This has been an utter disaster, just like the ferries but without the cynical lack of paper trail to prove whose responsibility it is.

I’d have been less than unhappy to see Lorna Slater lose a vote of no confidence because, so far, she seems to be a good way short of competent, and because she seems never to have met an environmental problem which she didn’t think was best solved through privatisation.

That is just my opinion, you might feel differently. Perhaps she deserves a second chance. What is complete rubbish is that the vote of no confidence was a ‘desperate move’ which has no legitimacy. Rubbish. The Greens have called for resignations for less. Slater and the Scottish Government made indefensible errors and they did so knowingly. Surely someone should pay the price. No?

Well, this is the SNP’s Scotland. No-one in power pays a price. I just wonder how much the SNP is going to regret this expression of total confidence in Lorna Slater. I mean, how much confidence do you really have in her?