23 June 2011

Law's delays & the insolence of office...

I'm delighted. At First Minister's Questions today, just a short time after the conclusion of the Stage 1 debate on the general principles of the Scottish Government's Offensive Behaviour at Football and Threatening Communications (Scotland) Bill, Alex Salmond announced that the legislation will be delayed for six months. Time will be afforded for further evidence sessions and more extended examination of these proposals. Parliamentarians will not be forced into a final vote on all of the issues next week. This is very welcome.  It also made for a bizarre edition of FMQs, with Iain Gray, Annabel Goldie and Willie Rennie left flailing, totally wrong-footed - their raft of critical questions about the detail of the Bill suddenly losing their political vitality. Iain Gray had the hardest time of it, having to flim-flam through a number of spent supplementaries, while Rennie made no attempt to recover from the crumpling of his pre-planned inquisition, simply thanking the First Minister in lieu of asking him another question on any topic of his choice. Ciceronian stuff.

The Bill as drafted is a mixed bag in policy terms, with a good many outstanding issues of legal definition and extent which need to be properly thought through. Despite superficial agreement on the goals of the legislation, there are also much more fundamental issues of principle, including the criminal regulation of speech and ideas, which have not yet remotely been explored. For instance, I think putting threatening communications on a statutory footing is a wise idea. The common law on uttering threats is profoundly difficult for any interested member of the public to come to any understanding of. That said, I am very much opposed to the idea of "bringing Scotland into line with England", and summarily introducing a law criminalising "stirring up religious hatred". The SNP used to share that position. I have not heard an adequate explanation about what has changed in five years, to turn SNP opposition to Blair's proposals into support for these proposals. Adherence to the directions of the party leadership and an unquestioning faith in their good judgement is not a principle I am willing to live by. Thankfully, with a longer timetable for examination of these plans, such issues can now be properly aired.  Or at least, the possibility for a decent discussion is not briskly foreclosed by a weary, pre-summer examination, with one's tired mind fixed on sunlit climes and empty, relaxing days. Whether or not I agree with the final shape of the final Act, a decent deliberative process on these issues is vitally important. All credit to Salmond, albeit belatedly, for conceding the point.

On the proposed football-related offenses, there are a number of complexities. I don't disagree with the analysis that the scope of breach of the peace has narrowed in recent years. As Roseanna recognised in her evidence to the Justice Committee, there are differences of opinion about the extent to which the criminal law should be defined in clear and comprehensible terms. Some would seek to defend greater flexibility (for which read, lack of definition and case-by-case judicial decision-making) - others would insist on the virtues of clarity and comprehensibility in our criminal legislation, even if that affords the law a more limited regulatory capacity, letting some bastards off.  Long term readers may recall the outrageous decision of the Court of Justiciary in Hatcher v. Procurator Fiscal, Hamilton, in which the public/private distinction left a great many people without legal protection from domestic abuse not amounting to assault. Anticipating this development, Holyrood had already passed § 38 of the Criminal Justice and Licensing (Scotland) Act in 2010 - and commendably, the Government speedily brought the section into force, in the light of the Hatcher judgment. The section introduced a new offence of "threatening or abusive behaviour". Unlike common law breach of the peace, § 38 does not require a "public element". This still-youthful offence is already on the statute book, but has been almost entirely overlooked in discussions of this Bill, with the limitations of breach of the peace being pressed into service, to justify the new provisions. This is problematic.

On the 15th of June, I argued that there was a strong political case for delaying the Offensive Behaviour in Football and Threatening Communications (Scotland) Bill.  The SNP majority in Holyrood has already been assailed by the argument that it enjoys excessive (albeit democratically mandated) dominance of the institution and concerns that its convenors in the parliamentary Committees and wealth of backbenchers might not prove themselves of sufficiently stern and independent mettle, to hold the government to account and properly scrutinise its proposals. Delaying their "anti-sectarianism" Bill, I suggested, was an excellent opportunity to emphasise these credentials, both for the government and its cohort of backbenchers and convenors. I wrote:

"It strikes me that if you have to change your mind in government, why not change your mind on an issue you actually got wrong, which is unlikely to do you any political damage in the longer term, which serves the difficult function of emphasising the independence of your own backbenchers and government submission to parliament - and for which the opposition will find it difficult seriously to criticise you? Such a conjunction of factors seems unlikely to recur any time soon. Against this proposal - and the political case for deferring the Bill - you might put up the argument that so radically to depart from your ordained schedule for the first major policy act of your re-elected administration is a sign of weakness or an admission of error."

I am under no illusions that Salmond took my advice - but these positive political arguments for deferring the final analysis this Bill stand. While some may crow about muck-ups and boorachs in the Scottish Government, and who knew what when, Salmond's decision to alter the Bill's timetable is a very visible indication that he will not use his office insolently, imposing an imperial will on the parliament and the country, despite the well-grounded complaints of both. In many respect, the Bill's pace only aggravated rather than alleviated these concerns about the SNP's power in the institution and the role of its backbenchers. Beyond the politics of impressions given, there were also plenty of good, substantial reasons for checking the hasty passage of this law. There were the hasty evidence-taking sessions before the Justice Committee, which were troubling insofar as both Ministers and members struggled at times to entertain a proper discussion about the legal scope of the proposals, fully in command of their brief. Moreover, in the short intervening period between publication and consultation on the text itself, the Committee attracted a number of written submissions from individuals, churches and football clubs, concerned at the breakneck speed of the legislation.  Moreover, this legislating-at-speed caused the Scottish Government to be faced with a legal action in Scots Courts. Represented by Aidan O'Neill QC, the Christian Institute and CARE for Scotland had plans in train to seek an interdict from the Court of Session against the government's actions. Whether or not this action would have succeeded, such things have to be defended - and added to the manic air surrounding the legislation. 

Given Salmond's reputation for cunning, some will likely try to convince us that this move was planned all along. This does not strike me as convincing. First and foremost, if Salmond had schemed the whole scheme out in advance, then Roseanna Cunningham has particular cause to be profoundly aggrieved with him. In this morning's Stage 1 debate, the Minister continued to defend the government's public timetable and emphasised the problems which, in her view, would attach to introducing new legislation in the middle of the coming football season, rather than at the beginning. With the delay ordained by the First Minister, this second scenario is now the policy of the Scottish Government. The parliament's stage 1 debate began at 9.15 am and ended with General Question time at 11.40 am. So, either the decision to change course was made after the debate had begun - or it was made long before and Roseanna got needlessly screwed over. Either proposition is plausible. If you watch the footage of FMQs, you can just spot Ms Cunningham abstaining from joining in with her colleagues' applause to the Maximum Eck's answers. Significant? Mibbies aye, mibbies naw.  For my part, it strikes me as much more likely that this is a last minute change of direction, made when Cunningham was in the parliament and on her feet, and that the news came as something of a shock to the junior Justice minister. Machiavelli, it wasn't. For this reason, I imagine Cunningham will be incandescent about having the legs unexpectedly taken out from under her in the chamber of the parliament - and understandably so. It would be enough to make many ministers consider their position. Yet, as Alex Massie contends, this isn't the end of the line...

"Thinking again is a good first step but no more than that and will be worth little, in the end, if the bill survives in anything like its present form. Government has no right to peer into men's souls and nor should it be entitled to place unwarranted restrictions on their speech and thoughts, far less suppose that even a draconian, catch-all bill of this sort can actually achieve any of the aims - however worthy they may be thought - its few remaining supporters desire ... Good sense has prevailed today; some vigilance is still required."

For all that, credit is due. It would have been all too easy for the government to crash pig-headedly on, cuffing and cudgelling their way out of their predicament, feart that they'd take a drubbing for changing their plans at the behest of others and the implicit recognition that their original haste was folly.  They did not do so.  There did not appear to be many stirrings on the SNP backbenches, that would disturb the stately passage of this flagship policy, if Salmond had insisted on it. He did not. Against the sea of troubles roiling about his Bill, Salmond decided to take such slings and arrows as are flung his way - and lay down his arms. No doubt the Maximum Eck did so unhappily, hand forced by circumstance - but it redounds to his credit that he didn't charge on in the face of everything. For the first time in several weeks, we have a politically cheerful Peat Worrier, turning the clods with a ruby whistle on his lips.


  1. Scottish republic23 June 2011 at 18:25

    """"I am under no illusions that Salmond took my advice""""

    I suspect someone read your blogs, passed it on, and it helped quell the burning fires of legislative ardour somewhat.

    Good work peatwarrior.

  2. Scottish republic23 June 2011 at 21:53

    It also might be the case that voters on the doorstep are saying they aren't happy with legislation.

  3. A kind thought, Scottish Republic. It seems to me more likely that it was Celtic and Rangers united concerns which finally forced the FM's hand. There may have been some voter concern in Inverclyde - I haven't heard anything to that effect myself - but I wouldn't want to rule it out.

  4. Stepping back a little from the substance of the issue, the residual impression is how Salmond gave another one of his ministers just enough rope to hang themself whilst he remained in the background.

    Is he well liked by his colleagues?

  5. Anonymous,

    I can't speak for his colleagues, none of whom I'm on close terms with. However, it seems undeniable that the idea for a Bill and the timetable for its passage was Salmond's idea. Or at least, driven from the very top of the government, whatever its original provenance. As Alan Cochrane noted in his recent column on the issue, this fact alone, combined with the last minute volte-face, makes one feel rather sorry for Roseanna.