30 September 2011

Is Scotland interested in free speech?

A number of folk warned that if the Offensive Behaviour at Football etc (Scotland) Bill was o'erhastily passed, there would be unintended and potentially pernicious consequences. Offences would be overbroad, uncosted, unclearly defined. Both the liberty of the subject and the authority of the police and courts could be undermined.(Little did we know that unforeseen developments would also attach to the deliberative process. From avowed fitbaphobic, Justice Committee chair Christine Grahame is apparently now a fan).

It didn't help that Scottish ministers have seemed pretty consistently unsure about what they intend the Bill to do. Was it an absolutely necessary measure, to soup-up the ancient, hobbled Scots law so it could keep up with fleeter technological developments? Was it intended as a restatement of the law, with a sectarian tag, to "send a message" and communicate scorn for sectarian-inspired violence and threats? More generally, was the problem one of legislation, or enforcement?

Alex Salmond initially suggested that the law would criminalise "bigotry peddled online". This characterisation of the Bill was buttressed by the impression that the First Minister was empowering the police to act, where presently, they could not. ""I am determined that the authorities have the powers they need to clamp down effectively on bigotry peddled online", he said. Salmond's statement was followed by an interview with Kenny MacAskill on Newsnicht which pursued the Maximum Eck's illiberal strain. The Cabinet Secretary for Justice suggested that the Bill's new provisions would not be limited to threats of violence, but provide for the punishment of sectarian speech under certain vague conditions. Even sympathetically considered, Kenny did not impart an impression of a clear sense of direction.

In her first appearance before the Justice Committee, Roseanna Cunningham seemed similarly flustered.  At this stage, she was still echoing Salmond's first proposition: that the Bill shored up the leaky dyke of the law. Repeated reference was made to the narrowing of the offence of breach of the peace in recent judicial rulings. Generally neglected were the provisions of Holyrood's 2010 Criminal Justice and Licensing (Scotland) Act, which already criminalises "threatening or alarming behaviour".  Having reconvened after the summer recess, the Justice Committee has been taking oral evidence from a range of characters, including fan associations from football clubs, pundits, academics with an interest including the historian, Professor Tom Devine, church representatives, police and prosecutors, supplementing the extensive written material which has been submitted.  Most recently, Roseanna returned to the Committee with the Lord Advocate, visibly much more assured. Curiously, however, the stated rationale for the Bill has shifted slightly again. In contrast to the keynote of her June appearance - that the Bill is a necessary, emergency measure to cure deficiencies in the law - Roseanna is now emphasising that it is a declaratory instrument, expressing scorn for bigotry. In her opening statement, she emphasised ideas of public recognition, of condemnation:

"I have heard many times the accusation that new laws are unnecessary because laws are already in place. We are mindful of that point, although we do not agree that it is the case. What we propose arises out of concerns that the police had earlier in the year. Furthermore, there is a danger that we miss another fundamental point: it is an entirely proper role for the Parliament to use legislation to register public outrage about a particular behaviour even when other criminal offences cover aspects of that behaviour. We have seen that in legislation to protect emergency workers, to outlaw stalking, to criminalise slavery and servitude and to express our abhorrence of genocide—all those matters were already criminal. Right-minded people are as outraged by bombs, bullets and bigotry as they are by those other crimes and will, I am sure, welcome the Parliament’s decision to bring this behaviour fully into view."

Anyone who watched First Ministers Questions yesterday will have detected that the First Minister hasn't picked up the change in emphasis suggested by his junior justice minister.  In answer to an eminently fair question about the necessity of the Bill posed by Dame Bella of Doily, Salmond returned to the familiar theme of a narrowing offence of breach of the peace. You can see why Roseanna has changed tack.  Events in the intervening period have combined to undermine the thesis that the current law was unable to deal with threatening or alarming communications, whether online or anywhere else. A government-commissioned report on football banning orders has been published, indicating that the police has not been using the powers at their disposal to ban offenders from football grounds, while a number of suspects have been arrested and charged under existing laws, a fact that shouldn't surprise those who have read the Law Society of Scotland's contribution to the Justice Committee's deliberations. 

Just yesterday, having pled guilty to a religiously aggravated breach of the peace, one convict was told by Sheriff Bill Totten that he'll likely go to jail on a "substantial custodial sentence" for comments posted on a Facebook group entitled "Neil Lennon Should Be Banned". While he is clearly an exceedingly unattractive figure, expressing exceedingly unattractive sentiments, it seems astonishing to me that we should think it necessary to jail a man for saying them.  Having briefly rummaged through the press reports, the list of Birrell's web statements given in the Daily Record seems the most comprehensive:

"Hope they all die. Simple. Catholic scumbags ha ha."
"Proud to hate fucking tattie farmers. Simple ha ha."
"They're all ploughing the fields the dirrty scumbags. FTP and the 'Tic. WATP. No Surrender."
"Fuck the Fenian bastardsds who have fuck all else to do than talk shit."

Self awareness clearly isn't this raconteur's keynote. For those unfamiliar with acronyms, given the context, and the lack of originality, it seems reasonable to conclude that FTP denotes "Fuck the Pope", and WATP, "we are the people". I sympathise with the the man's lawyer's characterisation of these postings:

"These postings were distasteful and abusive. However, his postings did not contain threats or incitement to violence. There was no mention on them of Neil Lennon or the manager of Celtic. It was hackneyed sectarian language."

The Sheriff has not yet passed sentence, having requested a social enquiry report and freed Birrell on bail. While this prosecution clearly undermines the idea that the Offensive Behaviour at Football etc. (Scotland) Bill is necessary in the way that Salmond seems still to be maintaining, for those of us minded to give priority to the liberty of the subject to entertain and utter thoughts, however odious or gormless they are, Sheriff Totten's observations are very ominous indeed. It should come as no surprise that the Common Law shares the latent, illiberal potential of the new Bill. But to jail a man, however generally villainous he might be, for vacuous, horrid, borrowed babble? That gives me pangs.

26 September 2011

Tom Harris: Paratrooper?

Given the prospect of Tom Harris' candidacy for the Scottish Labour leadership, quite a few folk have been talking about parachutes. Unsatisfied with the ground troops on parade in Holyrood, and rather than let Harris bash himself to bits in a forlorn hope, there are also signs (best I can read them) that Labour may also seek out its new deputy leader from amongst their first battalion, presently billeted down in London.  Although Harris is likely to appeal to Eckly parallels in the justification of ruling his party from his seat in the Imperial Parliament, the political difficulties for Labour presented by this stratagem are plain enough. Although Harris has already made clear that it would be his intention to stand for Holyrood in the 2016 election, some might well ask, why not engineer his entry into the Scottish Parliament a little sooner? 

A reasonable question, you might well think, but scoping the (im)practicalities of the thing is suggestive of the difficulty Labour is faced with.  Option one. Grab one of your existing tribunes by the ear, give them your most Ciceronian patter about the party interest, your eternal gratitude - and have them step down, leaving the leader with a clear descent into the vacated seat in Holyrood. You can imagine the headlines: a daring act of derring-do by the party's new captain, an unanticipated advance; the SNP blindsided and stammering, caught in the sticky fibres of their own rhetoric about Harris' "London" leadership. Doable? Perhaps. The problem with this scheme, however, is that after their May drubbing, Labour has significantly less capacity for this sort of card trick. While Labour's overall clutch of seats fell from forty six to thirty seven, as the now-very-yellow electoral map of Scotland depicts, their loss of constituencies was far more significant, shrinking from the 37 constituency seats held in 2007 to only 15 in 2011. In Harris' own Glasgow, Labour holds only four seats, and I don't fancy his chances of convincing any of the incumbents to fork them over. Moreover, outside the central belt, a number of Labour constituencies were held by ornery and locally-appealing characters, rather than the sort of gormless party hack Harris would be looking for. Can you see Malcolm Chisholm relinquishing Leith, or Elaine Murray her seat in the Borders? Nor I. Perhaps the weary Iain Gray might be the best target for Harris' charms in East Lothian, but given that Gray's majority was an exceedingly slim 151, the constituency hardly has the characteristics of Labour shoo-in (but then again, where does in Scotland, these days?).

Of course, it may be that through tragedy, scandal or accident, some other winnable seat will fall vacant, and Harris or Sarwar could take a crack at it, without scandalising his own tribunes in Edinburgh. From aerial perspective, the drop-sites for parachuting Harris into a Holyrood constituency seem minimal, and potentially treacherous terrain for a tender, self-conscious commander.  What about the regional lists? After all, several folk were unexpectedly elected on those. With a quiet word in a few shell-likes, couldn't those in situ be persuaded to give way in their party's interest? Many of the twenty two regional MSPs are more junior figures in the party, without their own established bases of support in the constituencies in question, perhaps they would be more amenable to agreeing to their own replacement? 

The basic question is, what happens to a regional seat when a party's regional list is exhausted? Most of you will likely be most familiar with the process following the death of the SNP list MSP for Glasgow, Bashir Ahmad, who was replaced by an Indygal who went to Holyrood, who was ranked after Ahmad on the regional list. What would have happened if the SNP had only put forward a slate of five regional candidates, and Ahmad had been the fifth elected? Would the Nationalists have been able to nominate whomsoever they wish to take up the post vacated by his death? Would there have to be a Glasgow-wide by-election? Could Harris use this as a way of sneaking into the Scottish Parliament, without riling his constituency colleagues?

Unfortunately for him, the law proves recalcitrant, and unamenable to participating in the scheme. Sections 9 and 10 of the Scotland Act 1998 govern what happens when seats in Holyrood fall vacant. The death, resignation or retirement of a constituency member causes a by-election to take place in the usual way. In the regions, by contrast, if the list put forward by a political party is exhausted, the seats remain unfilled till the next election. The same goes for those elected on the region as independent candidates. This detail isn't purely academic. Firstly, it absolutely rules out any cunning jiggery-pockery to vault Harris into Holyrood via a regional seat. Harris is  stuck with the unpromising vista of fifteen Labour Scottish parliamentary constituencies which he might consider inveigling his way into, or the option of biding his time on the off-chance some other, handily-placed constituency falls vacant before 2016. Secondly, the strictures of section ten of the 1998 Act mean that if Margo MacDonald decided to vacate the seat she won in Lothian in the 2011 election before 2016, it would simply remain vacant until 2016, and would not be reallocated. Finally, in Central Scotland, the SNP have actually exhausted their regional list already, all of their candidates - Alex Neil, Michael Matheson, Jamie Hepburn, Linda Fabiani, Richard Lyle, Christina McKelvie, Angus MacDonald, John Wilson, Clare Adamson - having been elected in respect of constituencies or returned in Central Scotland itself.


24 September 2011

Of Joan McAlpine & "distinctively English" constitutional principles...

Writing in the Scotsman this week, Joan McAlpine, journalist-turned-blogger-turned-South-Scotland-SNP-MSP, composed a jeremiad about a legal story which will, I expect, shortly be gracing most papers in the country. Her subject? The case of AXA General Insurance & Ors v. The Lord Advocate & Ors, presently up before the UK Supreme Court. The Court's website provides this brief, helpful outline of the key facts in contention in the litigation. 

"In June 2009 the Damages (Asbestos-related Conditions) (Scotland) Act 2009 came into force, having been enacted by the Scottish Parliament. It provides that asbestos-related pleural plaques and certain other asbestos-related conditions constitute personal injury which is actionable under Scots law. Pleural plaques are physical changes in tissue which lines the lungs and the chest wall. They do not actuate or contribute to potentially fatal conditions such as lung cancer, mesothelioma or asbestosis, but their existence evidences significant previous exposure to asbestos, which of itself represents a greatly increased risk of contracting such diseases. The Appellants are insurance companies whose business includes employers’ liability insurance policies. They brought a petition for judicial review seeking an order that the 2009 Act is unlawful. The petition was dismissed by the Outer House of the Court of Session and, on appeal, by the Inner House. The 1st Respondent represents the Scottish Ministers, the 2nd Respondent represents the United Kingdom Government and the 3rd to 10th Respondents are individuals who have been diagnosed with pleural plaques."

As I have discussed several times before with respect to a number of political issues, the Scottish Parliament's powers are limited by the Scotland Act 1998, which devolves all issues which are not reserved, and limits the Parliament to Act consonantly with European Union law and the human rights law emanating from the European Court of Human Rights' analysis of the European Convention.  Any law passed by Holyrood which is incompatible with either of these two constricting bodies of norms, or which relates to reserved matters, can be flattened by Scots courts, declared ultra vires and thus no law at all.  That is precisely what the litigating group of insurers are up to. As the UK Court's case summary suggests, the insurers' case was comprehensively rejected by the Scots Courts, by Lord Emslie at first instance at the very beginning of 2010, and by the Inner House of the Court of Session, in a judgment from the soon-to-be-retiring Lord President Hamilton, given in April of this year. Unusually, suggestive of the legal interest of the AXA case, a panel of seven Supreme Court Justices was convened to hear the case in London, with Court of Session judge Lord Reed substituting in for the sickly Lord Rodger of Earlsferry, the second Scots Justice on the Court, who has since passed away.  Writes Joan...

"... there are even greater issues at stake if the asbestos ruling goes the wrong way. If the insurance companies win, you will effectively see a London court overturn an Act of the Scots Parliament that has with widespread support from other political parties, the trades unions and churches. The immorality and injustice of this would not be lost on the people of Scotland, particularly as it would be impossible for the Supreme Court to similarly dismiss Acts of the Westminster parliament, which is regarded as a sovereign, law-making body in the way Holyrood is not.  This exposes the sham of the current constitutional arrangements. Scots, increasingly, are proud of their parliament, expect it to protect them and want it to have far greater powers. It is sovereign in the eyes of the people because they are sovereign and it is they who elect it."

The sham of the current constitutional arrangements? Mibbes aye and mibbes naw. One of the reasons Joan's argument is interesting is that it pitches traditionally-held SNP views about a post-independence Scottish Parliament into the ditch. In the party's most recent draft constitution for a free Scotland, last updated in 2002, the SNP promoted a conception of the legislative function that makes a number of breaks with the Westminster model (but significantly, shares many of the features of Holyrood at present). Article VI of the Nationalist constitution, speaking to fundamental rights and freedoms, very extensively borrows from the European Convention on Human Rights, including the Protocol 1 Article 1 rights to property, being relied on by the insurers in the pleural plaques litigation. The document also makes clear that Scottish judges will be empowered to make a determination about the constitutionality of any Act of the Scottish Parliament. Critically, in clear echo of Holyrood's current legal situation under devolution, the SNP constitution makes clear that Acts which do not observe fundamental rights will be legally void. Scottish Courts will be able to strike laws down, whatever political will generated their provisions...

Article VI, s1(a) "...no law may be passed which abrogates or derogates from the guaranteed rights and liberties".

It is familiar stuff, ritually reasserted in four swearing-in ceremonies, that the SNP believe the people of Scotland to be sovereign. It is quite another thing for Joan to attempt to borrow that sovereignty for the Scottish Parliament, particularly since the SNP are not (and to my mind, have never been) supportive of a sovereign Scottish legislature after independence, aping the English constitutional model.  Indeed, many nationalists are so hostile to the idea of parliamentary sovereignty, that they seek out ways in which Westminster may be misguided in its apprehension and assertion of legal supremacy. Lord President Cooper, making mischief in the celebrated case of MacCormick v. Lord Advocate on the Queen's right to style herself Lizzie Twa in Scotland, furnished them with the striking observation that "the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law".

It is easy, given the legal structures of devolution, to fling around generalised accusations that any limits on the parliament's institutional powers are constitutional shams and Westminster villainies. The irony of Joan's position is that the AXA challenge to Holyrood's pleural plaques litigation would almost certainly have happened, had the same Act being passed in an independent Scotland, shaped by the SNP constitution. For those with a keen eye and appreciation for political paradoxes, the questions before McAlpine are obvious. Does she want to transform Holyrood into a sovereign successor institution which draws on "distinctively English" constitutional principles with "no counterpart in Scottish constitutional law" - or does she wish to follow the SNP model of legislative power in an independent Scotland being limited by the judicial interpretation of fundamental rights? The two propositions are mutually exclusive.

I have rather more sympathy with the vexation Margo MacDonald will be feeling, to find that an issue she wished to pursue through legislation - outlawing exorbitant rates of interest being charged - is reserved to Westminster under the Scotland Act 1998, and thus, outside Holyrood's legislative competence. Both cases illustrate a point I've been banging on about for a good while - legislative competence issues aren't obscure, technical legal details we can afford politically to ignore, whether as political observers, commentators or members of parliament. Political competence, and a sense of what is possible and impossible, must needs be informed by legal competence.  Infelicitously, Joan also suggests in her Scotsman article that...

"That case is due to be heard in London early next month. Many observers believe the companies have little hope on Human Rights grounds - the case hinges on their property rights - though stranger things have happened."

This isn't the case. In point of fact, the hearing before the UK Supreme Court was held in the middle of June, and it is the Court's final judgment in the case that we are now anticipating.  As to the character of that hearing, I can't do better than quote my own more or less contemporaneous observations, having watched the defence of Holyrood's legislative competence to pass its pleural plaques legislation. My thoughts very likely shan't bring an optimistic smile to Joan's phizog, although she may take some succor from Aidan O'Neill QC's decidedly more robust, eloquent and à point contribution in the law's justification, towards the end of the hearing...

"In the UK Supreme Court this week, the Justices heard the appeal of insurers against Holyrood's pleural plaques legislation. As those watching proceedings on the t'internet would have noticed, counsel for the Lord Advocate, Alan Dewar QC, put in an exceedingly ponderous and long-winded performance - and if Holyrood's Damages (Asbestos-related Conditions) (Scotland) Act is held to be intra vires by the UK Supreme Court, despite its retrospective application, it will be despite the potency of Dewar's interminable oral advocacy, rather than because of it."

We'll see what the UK Supreme Court decide, though given their mid-hearing rhubarbs and harrumphs, I wouldn't be surprised if the Justices object to the 2009 Act's retrospection. For what it is worth, however, I think it'd be disgusting if the insurers prevail and the pleural plaques Act is struck down. Having been extensively involved in the parliamentary discussion on the proposals, going to law in this manner is clearly venal, clearly self-serving. As a final aside, the fate of the 2009 Act ought to be taken as a salutary lesson for those minded to pooh-pooh my well-covered concerns about a legal challenge to Holyrood's independence referendum Bill. The Damages Act came into force on 17 June 2009. Lord Emslie entertained 22-day long hearings on the insurers' challenge to the legislation in the October of 2009, giving his adverse judgment in January 2010. Lords Hamilton, Eassie and Hardie didn't hand down their appeal judgment on the matter for a year and three months later. In a speedier movement, the UK Supreme Court won't be in a position to announce their final disposition of the case until after the start of their Judicial Year on the 3rd of October at the very earliest. If the commentators are correct, and canny Eck is biding his time to launch the independence referendum at the most fecund moment for nationalist feeling, all of that political calculation risks coming up nought before the law's delays.

18 September 2011

On the serpentine logic of Michael Forsyth...

With Lord George Foulkes' demission from Holyrood in May's election, I suggested that despite ourselves, we might yearn for Eckbane - the lost Clatterbag o' scandal that is, was, and shall be ever-after - flyter Foulksie. It seems, however, that even the sedate scarlet benches of Westminster's noble house have proved insufficient to cool Geordie's natural ardour.  You can't kick against the pricks, after all. The Scotland Bill, having passed its second reading before the House of Commons, has progressed with stately ceremony up to their Lordships, who are presently muttering over it at committee stage.  While watching the traffick of parliamentary amendments won't entertain or vex most, Foulksie's mischief will prove a (dis)honourable exception.  In addition to careening about on his old hobby horse about Holyrood's electoral system and trying to make variation in university fees within the UK a reserved matter, outwith Holyrood's competence, Geordie has laid a series of amendments, attempting to precipitate a Westminster organised and Westminster controlled referendum on the question “Do you want Scotland to remain part of the United Kingdom?”.

Grosso modo, Foulksie also proposes to make any future extension of Holyrood's powers over taxation conditional on a positive referendum, endorsing the proposed elaboration of the Scottish Parliament's powers. A similar wheeze is designed on the financial provisions of the Scotland Bill (enumerated in part 3 of the draft enactment). If that wasn't sufficient to rile the forces of enthusiastic political nationalism, another noble lord - a Tory whose Unionist heart is as black as the Earl of Hell's weskit - Michael Forsyth - joined Geordie, proposing the following amendment...


Insert the following new Clause—
“Referendum about Scottish independence

(1) The holding of a referendum on whether Scotland should become independent from the rest of the United Kingdom is outside the legislative competence of the Scottish Parliament (see subsection (6)).

(2) The Prime Minister may by order cause a referendum to be held throughout Scotland about whether Scotland should become independent of the rest of the United Kingdom.

(3) The order shall contain the question that is to appear on the ballot paper

(4) The referendum shall be held in accordance with provisions made in the order, applying the provisions in sections 2, 3, 5 and 6 of, and Schedules 1, 2, 3, 4 and 9 to, the Parliamentary Voting System and Constituencies Act 2011 with such modifications as are necessary.

(5) An order under this section may not be made unless a draft of the statutory instrument containing the order has been laid before, and approved by a resolution of, each House of Parliament.

(6) In Part 1 of Schedule 5 to the 1998 Act, after paragraph 1 (the Constitution) insert—

“1A. The holding of a referendum on whether Scotland should become independent of the rest of the United Kingdom is a reserved matter.””

As you can see, Forsyth's proposals are more direct than Foulkes', however, they don't aim at any great constitutional novelty. Given Westminster's sovereignty, it always had the power to call its own independence referendum, thus Foulkes and Forsyth's amendments don't surprise on that score. Where Forsyth's amendment does interest is its basic assumption, that under the Scotland Act 1998 as is, Holyrood unequivocally does have the legal competence to hold a referendum on independence. As I have argued a number of times before (often in debate with Love and Garbage), Holyrood's legal competence to hold any referendum on Scottish independence hangs by a very shoogly peg. Love and Garbage and I both agree on that legal analysis; disagreeing when it comes to the final disposal. He is confident that any Bill passed by Holyrood would be incompetent, I think the legal position is arguable, at best, but no certainty.

While I commend previous posts and links to you for a more involved account of why there is a legal problem with the referendum, put most briskly, under Schedule 5 of the Scotland Act 1998, you'll see that the first general reservation you see are aspects of the Constitution. Section 1(b) explicitly reserves "the Union of the Kingdoms of Scotland and England". Under section 29 of the 1998 Act, any law passed by Holyrood which "relates to" reserved matters is no law at all, incompetent, ultra vires. While we may debate the legal niceties (and indeed pick a way through them to a case for why Holyrood's independence referendum Bill does fall within its legal powers), on a common sense construction, a referendum on independence clearly relates to the Union.  Despite pervasive beliefs to the contrary, the Scottish Parliament's authority to deliver a referendum is by no means clear. While Newsnet Scotland is right to report of Forsyth's amendments that they are a "bid to strip Holyrood of the power over the holding of an independence referendum", what interests me is that Forsyth would concede such a power exists in the first place. Although it may be politically poisonous, and leave one open to allegations of subverting democracy, if he contended that Salmond's government doesn't have the legal competence to deliver his referendum, he would certainly be making mischief, but not entirely without basis. 

The assumptions informing Forsyth's amendment, and the difficulties an independence referendum might face, raises a further, nice legal point. You may or may not have heard of legislative consent motions - probably by their more common conventional name of Sewel motions. The Scottish Government offer this intelligible summary of their character, which I won't better:

"Nothing in the Scotland Act prevents the UK Parliament from legislating on matters which are within devolved competence: section 28(7) makes that clear. However during the passage of the Scotland Act, the UK Government announced that it "would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament." (In this context 'devolved matters' does not refer just to matters that are within the legislative competence of the Scottish Parliament and could, therefore, potentially be included within an Act of the Scottish Parliament. It additionally is taken to refer to matters which, although reserved, affect the breadth of the devolved institutions' powers - i.e. the legislative competence of the Scottish Parliament or the executive competence of the Scottish Ministers.) This has become known as the Sewel Convention, and its purpose is to reflect and respect the devolution settlement and the role of the devolved institutions."

Now summon Forsyth's amendment back to mind. On his analysis, holding a referendum on Scottish independence is a devolved matter, within the Scottish Parliament's competence. Under the Sewel Convention, therefore, for this power to be returned to Westminster's exclusive competence (like the Scotland's Bill's queerest proposed re-reservation, Antarctica), a Sewel Motion would be required, as would Holyrood's agreement. In short, with an SNP majority, and on Forsyth's own theory, it has a snowball's chance in hell of being accepted by the Scottish Parliament. Assuming that the Sewel convention is properly observed, Westminster could not unilaterally claw back the power, even if the serpentine Baron Drumlean's amendment found favour on the red and green benches of Westminster.  By strict law, of course, Westminster could cheerfully override Holyrood, but that would precipitate a political scandal of such intensity that we can expect Westminster to forgo the unanswering majesty of its sovereignty, and approach the whole thing much more gingerly.

However, as we've noted, Forsyth's premise is indubitably debatable, and Holyrood's competence to hold an independence referendum is (at least legally if not popularly) in doubt. Reserved matters, by contrast, require no Sewel motions and no legislative consent from Scottish institutions. Although a clear statement that an independence referendum is a reserved matter would change the Scottish Parliament's powers - changing what was maybe competent into something that certainly isn't competent - the tantalising uncertainty about Holyrood's powers makes for tantalising uncertainty about what devolution politesse Westminster is governed by.

For my part, I am still mystified why SNP MPs have not tabled the inverse of Forsyth's amendment, putting it beyond doubt that the holding of a referendum on whether Scotland should become independent from the rest of the United Kingdom is within the legislative competence of the Scottish Parliament.  There is, I understand, still time before the Bill's final passage to insert amendments to this affect. However, if SNP representatives insist that my nerves remain raw edged, and that no clear statement of competence is included in the Scotland Bill, Forsyth's intervention may be seen in something of a soothing light. If such a frigid and inveterate Unionist customer as Forsyth has internalised the idea that Holyrood can hold such a referendum, the imaginary Unionist punter who has been haunting my thoughts for the past years may not materialise, and by sheer brass, the SNP will have overcome their legal challenges.

16 September 2011

In Lord McCluskey's verdict...

... the jurisdiction of the UK Supreme Court ought to be reprieved. Which is hereby pronounced for doom. That the Evaluation Group of legal worthies reached this conclusion is hardly a shock to the system. When McCluskey's group published their interim report and consultation questions earlier this year, their position was made quite clear:

Para: 72 "...we do not suggest that the jurisdiction of the Supreme Court should be ended."

Anyone who anticipated a sharp reversal of opinion on this subject in their final summations was hoping beyond hope, or assuming an attitude of faux naivete for making future political mischief at the expense of Alex Salmond and his Cabinet Secretary for Justice. Indeed Kenny MacAskill submitted a consultation document to the group, posited on the retention of the UK Court's jurisdiction in Scottish cases raising human rights issues. Despite some innuendo to the contrary, when he put the group together, Salmond could hardly have expected a breathless legal endorsement of his political nationalism. Recall that despite his past judicial career in Scotland, McCluskey sits as a Labour peer in the House of Lords, albeit one with a history of jaundiced attitudes towards the domestic incorporation of the human rights norms articulated in the Scotland Act. Speaking in the House of Lords in November 1997, he argued ...

"By incorporating into our domestic law vague, imprecise and high-sounding statements of legal rights, we hand what is truly legislative power away from a democratic and accountable Parliament to an appointed, unelected and unaccountable judiciary."

If it was complaisance the First Minister was after, I'm sure there are Nationalist lawyers out there who could have made a better hatchet job of it for him.  The Group's primary recommendation is that appeals to the UK Supreme Court should be subject to certification by the High Court. No certificate, no appeal to London:

"An appeal to the Supreme Court should be competent only where the High Court has granted a certificate that the case raises a point of law of general public importance. Such a certificate will set out the terms of the question(s) for the Supreme Court to answer . However, in any appeal proceeding before it, the Supreme Court should have power to re-formulate the question(s) of law set out in the certificate and to address the questions as reformulated."

McCluskey's group also posed a number of consultation questions, including the idea that the UK Supreme Court should sit in Scotland for Scottish cases, and that there ought to be a majority of Scottish judges on any panel examining Scots law. Both of these proposals have been speedily dropped. The idea of the Justices of the UK Court jaunting up to Edinburgh a few times every year is dismissed on the basis that it would gobble up the resources of the UK Court, and put out its Justices and their functionaries.  The idea of a Scottish majority is similarly ditched, whether constituted of increased Scots representation on the UK Court, or extending the practice of ad hoc inclusion of Session judges on Supreme benches.

If political opponents had the nous to go digging, MacAskill's submission to the group on the issue of a Scottish judicial majority in UK Supreme Court cases includes this potential howler. During the stooshie which lead to McCluskey et al being formed up into a review group, MacAskill was quoted in the Herald as having said:

“We just want to be treated the same as other legal systems – we’re not, because we’re undermined routinely by a court that sits in another country and is presided over by a majority of judges who have no knowledge of Scots law, never mind Scotland.”

Alex Salmond echoed the sentiments in his interview with Holyrood Magazine. Defending MacAskill's "Edinburgh Festival" barb, the First Minister said...

"The Edinburgh Festival remark was meant to illustrate the fact that the Supreme Court has a majority of judges in it who may or may not have a knowledge of Scots law and it was a colourful way to illustrate it and I don’t think anyone seriously would take exception to that in terms of the debate."

Both of which seem to imply that Salmond and MacAskill would support a UK Court with a Scottish majority, albeit with understandable nationalist political caveats. Not so, apparently. In his submission to McCluskey, MacAskill writes:

"We do not think it would be practicable to provide a majority of judges on a Scottish case qualified in Scots law. It would further entrench the role of the UK Supreme Court in Scots law, which is the opposite of what we seek."

Prima facie, this looks like a rather embarrassing combination of views, at least seeming to imply that the primary interest of SNP ministers here was not preserving Scots Law in substance as an alternative system of legal values, but with Scottish distinctiveness as such. We will slam the UK Supreme Court for lacking a Scottish majority, but simultaneously oppose the creation of any such majority.  Despite the rum look of this, as I've contended before, there are good and less immediately hypocritical reasons to worry about how any Scottish majority on the UK Court would be put together.  I have written before about how the creation of the UK Supreme Court has been seized upon as an opportunity to inscribe a Unionist semiotics on the fabric of the place, and in the symbolism it projects, quite apart from the older, obscurer and unladen imagery of the Judicial Committee of the House of Lords, as was. Politically, as a nationalist, I have no problem with the idea of opposing institutions which would serve to entrench the Union. If Scotland's separate legal system is to be taken seriously as a pillar of its relative independence after 1707, an institution like the UK Court has to be treated seriously as a pillar of Union. The same goes, incidentally, for any "British Bill of Rights" which stumbles into the light. That said, I'd have thought one opposition member of parliament might have noticed MacAskill's discrepancy, and had some malicious fun at his expense.

Although the Group only attracted a few more consultation responses (some fifteen in total), a few deviations in them are of interest. JUSTICE contributed a particularly robust, critical perspective opposing McCluskey's certification proposals, arguing that the group's rhetoric about Scottish parity of treatment in the UK was pretty much bunkum, if you look into the detail of the difference. A few touched on a question many will find themselves asking about McCluskey's reform proposals. The examination of the UK Court's jurisdiction emerged in the context of that Court's decisions on particular appeals, most notably the Cadder v. H.M. Advocate judgment and the case of Nat Fraser v. H.M. Advocate. What difference would these reforms make? Would Cadder or Fraser make it to London under the new dispensation. Interestingly, the final report discloses a rather stark disagreement on this point. On the case of Cadder v. H.M. Advocate, the McCluskey reviewers concluded...

"That case raised a legal issue which we think is generally accepted to have been a question of a point of law of general public importance."

Significantly, that general acceptance didn't extend to the UK Supreme Court (nor for that matter, to JUSTICE, who lay out their concerns around Cadder and Fraser, to my mind, very convincingly based on the actual behaviour of the Justiciary Court in respect of each case). In their submission on the idea of certification along these lines, they explicitly take the opposing view, confident that Justiciary would have blocked any London appeal from Cadder...

"It might be worth bearing in mind that, if this system had been in place when the appellant in Cadder v HM Advocate applied for leave to appeal, the High Court of Justiciary would almost certainly have refused to certify: see the narrative in the judgment in that case, para 9. The question was clearly one of general public importance, but the Appeal Court had already ruled on the issue in HM Advocate v. McLean."

14 September 2011

Neil Lennon case: Wilson jailed for 8 months...

The jury's verdict in the Neil Lennon assault case needs no introduction. It caused a public scandal, and prompted a great deal of comment and commentary across the country. Having deleted the religious aggravations, and acquitted John Wilson of assault, it should be recalled that the jury did return a guilty verdict on one charge, condemning Wilson's conduct as a breach of the peace. Today, the presiding Sheriff, Fiona Reith QC, passed sentence on Wilson, handing down an eight month term in prison, reduced from the year she would have imposed, had Wilson not been willing to plead guilty to the charge from the outset - a plea rejected by the Crown.  Scots Law Thoughts has more on the practical implications, factoring in the backdated sentencing, and the mandatory early release of prisoners serving "short" sentences (in this context, defined as less than four years).

Significantly, and in context, hardly surprisingly, the Sheriff also issued a football banning order under the Police, Public Order and Criminal Justice (Scotland) Act 2006, lately analysed in a piece of research for the Scottish Government, and recently discussed on this blog. Under threat of criminal sanctions, Wilson is to be banned from football stadia for five years. Under the 2006 Act, the maximum period Wilson could have been subjected to an FBO was ten years. Unfortunately, the recent report on the topic does not record the average length of football banning orders imposed in Scotland, but in England and Wales (Table 6.4), of the 2,769 banning orders imposed on conviction and in force at the time of research, some 71.5% banned the convicted person from football grounds for less than five years, and 21% for more than five years. By way of contrast, the same research shows that in Scotland, only 101 banning orders have been made since the 2006 Act came into force.  With that context in mind, here is the full text of Sheriff Reith's sentencing statement in Her Majesty's Advocate v. John Wilson...

“The jury in this case reached their verdict on the basis of the evidence presented to them in court and it now falls on me to sentence you in the light of that verdict. You were found guilty in the following terms: On 11 May 2011 at Tynecastle Football Stadium, Edinburgh, you John Clark Wilson did conduct yourself in a disorderly manner, run onto the field of play during the period of a designated sporting event, run at the away team dug out, shout, swear, all to the alarm and annoyance of others and thereby causing further disturbance within the crowd there and commit a breach of peace.

The crime of which you have been convicted by the jury was a serious one. The football match was a high profile game between Celtic and Hearts. There was evidence that there was a “terrible”, “very tense” and “poisonous” atmosphere in the stadium between both sets of supporters with racist and sectarian shouting and chanting coming from supporters. The atmosphere got even worse after a Hearts player was sent off and then when Celtic scored a second goal in the second half of the game.

It was just after this that you ran on to the field of play and committed the breach of the peace of which you have been convicted. PC Cleghorn told the court that the whole stadium then erupted. He described how extreme antagonism between both sets of supporters of a bigoted, sectarian nature “really kicked off”, as he put it. He described the atmosphere at this point as being very, very volatile and he feared a pitch incursion as the crowd was angry.

A breach of the peace can sometimes be a quite minor crime but sometimes it is not. In this case it was not minor at all; it was serious, and with serious potential consequences in the context of what was already a highly volatile atmosphere in the crowd of over 16,000 football supporters.

In arriving at my view on the question of sentence, I have also taken into account your own personal circumstances. In particular, I take account of what is said in the Criminal Justice Social Work Report and the submissions made on your behalf by Mr Nicolson. This includes what was said about expressions of remorse by you for your actions. My impression from having seen and heard you in evidence is that your remorse is genuine.

However, in all the circumstances, I take the view that the nature and gravity of the offence is such that no disposal other than custody would be appropriate in relation to this offence. It has to be clearly understood by you and others that this sort of behaviour will not be tolerated and will be punished, and punished firmly, by the courts.

In selecting the length of sentence appropriate to mark and punish this offence, and to indicate to you and others the unacceptability of this sort of behaviour, I have taken into account – as I must in the light of guidance from the Appeal Court – that you offered to plead guilty to this charge at a very early stage in your letter to the Crown dated 23rd May 2011 in the precise terms of which you have been found guilty by the jury but that this plea was not accepted by the Crown.

If you had not offered to plead guilty at that earlier stage, I would have sentenced you to 12 months imprisonment. However, in view of your offer to plead guilty at a very early stage, that falls to be reduced in accordance with Appeal Court guidance to 8 months imprisonment. In view of the fact that you have been remanded in custody since you first appeared in court on this matter on 12 May, this sentence will be back-dated to that date.

I have also been invited by the Crown to consider the making of a football banning order. Mr Nicolson on your behalf did not take issue with the imposition of such an order but invited the court in the whole circumstances to impose an order for a lesser period than the maximum provided for in the legislation. He also submitted that a condition imposing a requirement as to the surrender of a passport in connection with regulated football matches outside the United Kingdom was unnecessary on the basis that you do not currently hold a passport.

In all the circumstances, I am satisfied that the offence of which you have been convicted is one to which section 51(4) of the Public Order and Criminal Justice (Scotland) Act 2006 applies, that there are reasonable grounds to believe that the making of a football banning order would help prevent violence or disorder at or in connection with any football matches and that it would be appropriate to make such an order in your case for a period of 5 years from today’s date.

The conditions of the order are as follows:

1. You must report to the police station at Drylaw, Edinburgh within 5 days of your release from imprisonment for this offence.

2. During the period of the order you are prohibited from entering any premises for the purpose of attending any regulated football matches in the United Kingdom

3. You must report to a police station in accordance with Chapter 1 of Part 2 of the Public Order and Criminal Justice (Scotland) Act 2006 in connection with regulated football matches outside the United Kingdom;

4. You must surrender any passport you hold in accordance with Chapter 1 of the 2006 Act in connection with any regulated football matches outside the United Kingdom; (This wording makes it clear you will only require to surrender a passport if you hold one)

5. Where a relevant event as specified in Schedule 5 to the 2006 Act occurs (which includes such matters as a change of your name or address, the loss of or receiving a new passport and an application for variation or termination of an order or an appeal in relation to the order), you must notify the football banning order authority of the prescribed information as defined in that schedule in relation to that event within 7 days beginning with the day on which the event occurs. If you fail to comply with any requirement of the order that would be an offence and you would be liable to a fine and/or a sentence of imprisonment.

13 September 2011

Temperance: a cardinal if not Cardinal's virtue...

Anyone who has loosely followed the peripatetic tone of this blog when it comes to matters religious might well find themselves somewhat confused by its contradictions.  Two strains vie in contention. The first is virulent anti-clerical, anti-religious, given to invective. The second strives to assume a more considered, sympathetic, questioning poise. Do not weep; do not wax indignant. Understand, it counsels.  Neither vein predominates, but I feel the tug of both. When it comes to religion, I'm a one man Caledonian antisyzygy.

The SNP government's anti-sectarian proposals prompted a short biographical reflection a few months ago. I was brought up in a family who I described as atheists, existentially untroubled. Ever since I was a child, however, I've always taken a rather inexplicable and idiosyncratic interest in religion, and Christianity in particular. An encounter with the life of Moses told by a narrow-beamed head teacher in primary school, which my juvenile self insisted was "just a story", much to her chagrin, set in train a career of taking malicious glee prodding at people's religiosity. Vexing questions were posed. Graces were stubbornly unsaid. Not that most folk minded, in point of fact. Despite the reputation enjoyed by coastal, rural Scotland, the part of Argyll I grew up in was remarkable worldly, and the local Kirk was primarily a social outfit, rather than a site for the celebration of deeply held pieties. My abiding memories of childhood religious experiences are the Minister's vast set of rubbery ears (which all older gentlemen are issued, I understand, in their 60th year) and his gargantuan voice, which when raised in song would obliterate the muted chorus generated by the whole body of his parishioners, which always amused my younger self. 

Growing more ancient, as a teenager, given to extremity as most teens ought to be, I was ferociously hostile to anything smacking of the clerical and the pious - apart from hymns or carols, that is, which I was only too happy to be obliged to rattle off (peat worriers habitually enjoy a sing-song).  Growing more ancient still, I began to hae ma doots about the priggery of my atheism, which subsequently found its archetypes in the exaggerated characters of the "New Atheism", whose propositions and proponents I often find myself just as disinclined to accept or admire as those advanced in the name of the name of conventional piety, by religious men and women. Despite myself, striving to unlearn my spikiness towards religion was timely, necessary, and profoundly instructive - albeit still leaving me cold and disbelieving when it comes to the central tenets of the Christian faith. It is not primarily that I'm more tolerant these days, though doubtless, I am. Tolerance isn't really the point. 

The Scottish Government's consultation on same-sex marriage - spiced up by their preliminary indication that they are minded to legislate to allow same-sex couples to wed - was always likely to summon up these spectres, and expose my contradictory impulses. I didn't have long to wait. In as many days, three senior Roman Catholic clerics have given tongue to their attitudes towards that consultation. Predictably enough, they are vehemently opposed to the idea that marriage's conceptual elasticity extends to permitting same-sex couples to be so joined. While those of us sympathetic to gay marriage will likely feel the red mist descend at the tone of these clerical jeremiads - it is instructive to give your peepers a wipe, take a soothing gulp of air, and tarry long enough to try to understand the logic all three are promoting. At the very least, it will allow us to identify where we disagree, and how. Despite their undoubted vices and inflamed tenor, at least two of these submissions have the virtue of being, with a little thought, very clear about their premises.

First, the Archbishop of Glasgow, Mario Conti, sent the Herald a short letter arguing that while civil partnerships recognise the "reality" of same-sex unions, we would be making a category mistake if we equiparated these relationships with marriage. Secondly, in a key passage from his homily given at a Mass for Politicians, held in St Patrick’s Church in Edinburgh's Cowgate on the 7th of this month, Cardinal Keith O'Brien explicitly told those in attendance that...

"We cannot overlook the importance of nurturing virtues of every person which takes place firstly and most directly in the family and for such reason we uphold the importance of the family which is the first building block of every society.  Equally, the church esteems the institution of marriage as the most stable building block upon which any family can rest. The view of the church is clear, no government can rewrite human nature; the family and marriage existed before the State and are built on the union between a man and woman. Any attempt to redefine marriage is a direct attack on a foundational building block of society and will be strenuously opposed."

The homily was followed by an article in the Mail on Sunday this weekend.  It is littered with wildly inflammatory rhetoric. The Cardinal unworthily compares legalising same-sex marriage to permitting slavery, calling the proposals a "great wrong", a  "grotesque subversion of a universally accepted human right" and  "madness" being "indulged". As for the Scottish Government, it is "disingenuous", "intolerant", "arrogant", their "weasel words" concealing the "great wrong" which they are villainously contemplating and which, if passed, will "shame Scotland in the eyes of the world" and "forfeit the trust of the nation". Amongst the "dangers" posed by the proposals, O'Brien adds:

"There is no question, that normalising gay marriage means normalising homosexual behaviour for public school children."

Damn right, though if Scottish social attitudes are anything to go by, your moral mission to stamp out sodomy is already jiggered, Cardinal. If all that doesn't get your spectacles fugging up, nothing will. I had been labouring under the impression that the Catholic church recognised temperance as a cardinal virtue. It is certainly not a virtue of this Cardinal, who has form composing shrill, cheap, ad hominem disaster narratives when it comes to social issues.  I imagine he'd respond by saying that moderation in service to the Good is itself a vice, and that my apprehension of the Good is palsied, and criticism misplaced. One can't help but feel that if a Scottish Minister merely borrowed the Cardinal's evaluative vocabulary and threw it back at him, he'd be squirming and appealing to the language of intolerance. Indeed, the Cardinal's colleague, the Bishop of Paisley, describes criticism of opposition to same sex-marriage as "homophobic bigotry" to be "an illiberal and undemocratic intolerance which only seeks to close down rational argument and to intimidate people into acquiescence". Words like "grotesque" and "madness" do not immediately strike me as the stuff that debates are best constructed from. Arguments, certainly. Bitter and acrimonious disagreement, without question. But tolerant, democratic, rational argument which is not aiming to intimidate Scottish Ministers by inflammatory discourse into acquiescing in your point of view? I think not.

But back to the mainspring of their arguments. Enlarging on Conti's theme, Roman Catholic Bishop of Paisley, Philip Tartaglia, published his consultation submission to Scottish Ministers. Tartaglia argues that given the exclusive rationale of marriage - begetting and raising weans - it "should not be treated as an equality issue". Marriage, he says is a "human reality which is prior to politics and positive law". To (mis)recognise same-sex marriage would undermine "the common good", and commit "an act of cultural vandalism".  In defence of this proposition, the Bishop even presses Article 16 the Universal Declaration of Human Rights into service. In a digression which is at best peripheral to his core case, he contends, as I understand him, that even to permit religious bodies who wish to to conduct same-sex marriages is to put refuseniks outfits of piety under duress, "infringing religious freedom". More interestingly, Tartagli quotes Pope Benedict to the effect that: “that the objective norms governing right action are accessible to reason, prescinding from the content of revelation.” He goes on:

"... marriage is a union between man and woman comes both from reason enlightened by faith, and from faith understood by reason, and is therefore a truth which is intrinsically able to be articulated in public discourse about the common good."

The crucial point about this formulation is that the idea that marriage is betwixt men and women only is not being ascribed to divine revelation, or faith, and therefore only having purchase (you might think) amongst the faithful. By roping in reason, Tartagli casts the proposition in universal terms. Whether or not you are a Catholic, or even a Christian, if we assume that reason is the same for all men and women, this reason-derived understanding of marriage needs must obtain for all. If I believe that marriage is a concept amenable to redefinition - if I refute the idea of substantive reason defining it, or a God endowing the concept of marriage with real solidity, rather than just being defined by mankind's conventional usage - for Tartagli, I am intellectually mistaken, in error, peddling falsehoods. It is critical that these clerics' use of terms like human reality shouldn't be mistaken for rhetorical tropes and condemnatory flourishes. This recalls I point I made in the context of Bill Walker's comments on the same subject...

"So Walker's position is that marriage is, by definition, to be consecrated between men and women only. This whole approach has its curiosities, which are easily missed by over-familiarity. One of the queer features of the marriage debate, whether here or over the water, is how vehemently definitions are deployed by those hostile to gay marriage. In our times, generally speaking, when we are talking about moral positions, this is classically denoted by the use of an extensive evaluative vocabulary - ought, should, I believe. We take for granted a gulf between is and should. Interestingly, often debates about marriage are couched not in these sorts of evaluative terms at all - but deploy the vocabulary of facts - marriage is X, Y and not Z - as if the concept was an object of knowledge, of which one could gain a true or false apprehension, rather than an evaluative matter exercising normative judgement."

One of the interesting paradoxes about this is that folk on the other side of the argument, supporting equalised marriage, will often find themselves making the same sort of foundational case as the religious figures whose arguments they will likely find intolerable. Speaking from my own godless perspective, one reason why this recent spate of articles are so inflammatory is because they strike at the roots - and reveal - the incompatibilities separating the world views being articulated. That is what will make discussion on same-sex marriage, as with assisted dying, so difficult. Avoid the temptation to see their arguments as the polite proxy for private, disavowed but keenly felt homophobia. Take these three men at the words. All three incorporate marriage into a divinely ordered universe with an immanent logic ascertainable to human reason. Those are propositions which I, for one, don't accept. Many won't. For strategic reasons, the Government will be keen to present their conclusion as a synthesis of contending positions. This is well in line with an idea of the (in areas like this, basically implausible) liberal public sphere. In reality, however, the thorny question persists. How can we even enter into a meaningful conversation - or hell mend us, a deliberation - with religions about conceptions of marriage, when our understandings of knowledge and the nature of reality are so basically incompatible?

11 September 2011

Why the devil did the Law Society donate to Scottish Labour?

The Law Society of Scotland's stated aims are as follows:

"The Law Society of Scotland is the professional body for Scottish solicitors.  We were established in 1949 and are financed by our members without any funding from government. Not only do we regulate and represent all practicing solicitors in Scotland but we have an important duty towards the public interest.  All practicing solicitors are members of the Society and are required to meet our high standards. The Society has a ten year strategy which sits beneath our overall aim to lead and support a successful and respected Scottish legal profession."

You'll notice that nowhere in that prospectus for activity is pledged support of putting Iain Gray in Bute House and a Scottish Labour majority in Holyrood. The absence of political partisanship is hardly surprising. For those with ambitions to be solicitors, participation in the Society is unavoidable.  It is an old fashioned monopolistic regulator. As such, the Society represents a very large number of lawyers in this country. According to their 2010 Annual Report, on the 31st of October that year, the Law Society consisted of 10,380 members holding practising certificates and 428 without such certification. According to Holyrood's Register of Interests, a number of parliamentarians from across the chamber are members of the Society, including the SNP's Annabel Ewing and Darth Murdo Fraser of the Tories. In the past, I know that Liberal Democrat Robert Brown, ranked second on the Glasgow regional list in 2011, also held membership. I dare say that all three of these characters will be profoundly surprised to discover that the apparently politically catholic organisation of which they are part, and in which you are obliged to participate if you are a Scottish solicitor, seems to have taken upon itself to contribute to the coffers of the Scottish Labour Party.  

Plaudits to the Corbie, whose lancing burdz eye view picked out the following astonishing detail.  According to the Electoral Commission's register of donations received, the Law Society of Scotland "sponsored" Scottish Labour to the tune of £2,400. This sponsorship is recorded as having been received on the 3rd of May 2011.  A rummage through the rest of these records reveals that no other political party seems to have attracted this (admittedly relatively modest) contribution from the body which is supposed to be representing the whole body of Scottish solicitors.  I don't imagine Murdo or Annabelle - and the rest of the membership which is not thirled by conviction to the Labour Party - will be at all gratified to discover that the fees they are obliged to contribute to their Society appear to have ended up in the pocket of a partisan political outfit in the course of a national election campaign.

Just what the devil does the Law Society think it is doing?

UPDATE 19:35

Happily, the impropriety suggested by the superficial declaration of donations is not as it seems. I received the following clarification from the Law Society about the nature of the sponsorship received by Scottish Labour - and the SNP, Tories and Liberal Democrats. What is confusing is why the sponsorship received from the Society has not yet been declared by the other three political outfits.

"We held events at each of the four main party conferences earlier this year. This was the cost for the Labour event. We published a manifesto ahead of the May election. We used each conference event to promote this manifesto. We hope this info helps. The Law Society is an entirely nonpartisan organisation and works with all Scotland's main political parties."

Panic averted.

9 September 2011

On the political leprosy of the Scottish Tories...

Something bizarre happened this week. As I sat down to lunch in deepest Southron Oxford, the chomping colleague to my right uttered two words, previously unheard of in these parts: "Murdo Fraser". Such has been the surprising resonance of Darth Murdo's bold and brutal assessment that the Scottish Tories are political lepers, whose future political health depends on a thorough peeling. In response, a number of commentators have explained the Scottish Tory predicament by appealing to metaphors of atrophy, hopeless decay; their crumbling electoral fortunes owed to their crumbling electorate: greying, dying, staying at home.

What is to be done? Not having a digit on the fading pulse of the Tory membership, it is difficult to say what they are making of their leadership dust up, though if the hostile attitudes of Conservative voters to further devolution is anything to go by, Murdo may have a good deal of persuading to do. It must be a pretty miserable admission to make, to accept that your political outfit is basically jiggered. For those not keen on Darth Murdo's skepticism, vague hopes predicated on acquiring a shiny, "modern" leader whose televisual artisry will be the shammy-leather to wipe away all sour political memories, will likely appeal.  Meanwhile, my old chum Jackson Carlaw seems to be pitching himself as the antediluvian candidate, presumably counting on the tribal solidarity of his fellow Jurassics in the Tory membership, while Ruth Davidson is emerging as the new Conservative hope of modernisation uncluttered by change.

Recent election results tell their own tale about the rotting carcass of Scottish Toryism and its slow electoral putrefaction.  As I noted recently, the Tories actually did better in terms of percentage of the vote in the 2010 General Election than in 2011 for Holyrood. In 2010, Conservative candidates attracted 16.7% of votes across the country. In 2011, they managed only 13.9% and 12.4% in Holyrood constituency and regions respectively, a decrease on the 16.6% and 13.9% they achieved in 2007. Why the decline? Undoubtedly, there are several elements at work here, some concerned with perceptions of Toryism, others with the relative political fortunes of parties contesting elections in Scotland. While much of the recent commentary around the Scottish Tory leadership competition has focussed on the first aspect, I want to discuss the second. In particular, it seems to me that certain features of the 2011 election, and in particular Labour's particular susceptibility to what I've called political schadenfreude in that campaign, which contributed and contributed significantly to the outward appearance of Conservative decline. Let me explain.

Caud comfort though it might be, the Scottish Tories were at least able to snare three Holyrood constituencies in South Scotland in 2011, Jackson Carlaw's ambitions to represent Eastwood notably (and crushingly) excepted. Ayr was won by 1,113 votes; Ettrick, Roxburgh and Berwickshire by 5,334; while Galloway and West Dumfries maintained its woaden hue by a more modest 862 ballots. In all three, John Lamont, John Scott and Alex Fergusson's primary opponents were the SNP, who each saw off more or less handily.  Much they rejoiced I'm sure. The tale takes on a different complexion, however, when you look at how these three constituencies behaved when casting their second, regional list votes. Unfortunately, the data on regional votes by constituency are, to my knowledge, nowhere collected. However, a little digging about the relevant council websites soon reveals something quite surprising.  Despite preferring the Tories to the SNP in a direct runoff in all three seats, in all three the Conservatives were massively displaced by the Nationalists when it came to the regional vote. It is worth looking at these results in a little detail, as they have not generally been remarked upon, deluged by the pan-region allocation of seats.

Ettrick, Roxburgh and Berwickshire...

In Ettrick, 3,888 folk went a wandering when casting their regional preferences. Lamont's very decent constituency vote of 12,933 collapsing to only 9,045 Conservative votes. The slim 7,599 Paul Wheelhouse was able to attract in the constituency vaulted up to 10,009 for the SNP in the region, up 2410 votes on their performance in the constituency, and putting the Nationalist in poll position, some 964 regional votes ahead of the Tories. Similar (arguably starker) results were returned in the other two Conservative-voting Holyrood constituencies.

Galloway and West Dumfries...

The Tories' least confident win, but victory is victory. Former Presiding Officer and black-faced sheep fancier, Alex Fergusson, repelled Aileen McLeod of the SNP by 862 votes on the constituency ballot. On the regional vote in the constituency, Ettrick's story is repeated. 3,022 of Fergusson's votes went on their merry way, the Tories polling 8,049 regional votes. Their competitors, the SNP, easily o'erleaped them in regional preferences, adding 1,261 votes to those McLeod acquired in the constituencies. Again, in a Tory constituency, the SNP bested the blues (their nearest competitor) by a stonking 3,421 votes.


Perhaps the most extreme example of a tendency identifiable across the three, John Scott attracted 12,997 constituency votes in Ayr, a 1,113 vote win over the SNP. Turning to their regional ballot papers, however, the folk of Ayr gave the Tories only 8,539 votes, a drop of 4,458 on their constituency figures. Again, the SNP proved the beneficiaries of the Tory regional slump, Chic Brodie's 11,884 constituency votes being followed by 14,377 for the Nationalists, an increase of 2,493. In Ayr, the SNP were a huge 5,838 regional votes ahead of their nearest competitor, the Tories.


How are we to make sense of this? Because we are now all familiar with the scale of the Nationalist victory, there is a great temptation to see the conclusion as forgone, Gray's immolation inevitable, Labour's drubbing anticipated.  As those of us who were writing about and reading the public polling and trying to anticipate the results will appreciate, this isn't a persuasive account of the predicament of a Scottish voter just before polling day. Lest we forget, only a month or two before the ballot boxes went scudding across the country, Labour were comfortably ahead, the Nationalists drooping along a sorry second. Even when these fortunes were reversed, nobody I nattered with about the election felt confident about the outcome.

Consider the situation of a peaty devotee, who read each and every YouGov poll I discussed here up to the final eve of election poll.  On the 4th of May, she would have found that the SNP enjoyed a seven per cent lead over Labour in constituency voting intentions, and only three per cent on the regional vote. While encouraging for a Nationalist, a narrow Labour victory or another 2007-style razor-edged result either way seemed perfectly plausible outcomes. On these figures, a Nationalist majority seemed significantly less so. As it happened, perhaps the crucial miscalculation of poll readers was the assumption that whatever the national polls might be suggesting, the red West of Scotland would defy them. Their majorities might shrink, but even in the face of polling which suggested that seats in Glasgow might be shading the SNP's way, credulity and internalised ideas of Labour perpetual hegemony prevented us from seeing clearly.  After the election, the Spectator vividly illustrated shifting Scottish opinion in the following chart. Starting in September 2010, the graph charts the (still astonishing) reversals of the campaign, and Labour's violent April collapse, and continuing plunge thereafter.

The crucial point is that uncertainty about the result was a defining feature of the last Holyrood election, right up to polling day. At the very end of March, as Labour continued to lead and before their April slippage, I argued that Labour's peril in the Holyrood election was political schadenfreude:

"Schadenfreude is a favoured loanword for good reasons. Glee in the misfortune of others can be exceedingly ugly. However there are some people - and I'd argue - some movements, who positively invite general satisfaction when their best laid plans unravel and fray disastrously. It has stuck me for a good while that the Labour Party in the 2011 Holyrood election are potentially, potentially, a very good candidate for the satisfactions of political schadenfreude. Like the fictional swot sketched in my little tale, the party is in poll position for no discernible good reason, has not and is not putting in the running to run to triumph. Iain Gray may declaim that he's "serious, very serious" all he likes, but he has presided over a relentlessly frivolous, vacuous opposition in Holyrood, exemplified by the late magpie approach to policy development. Labour's "policy blitz" was to crack open the SNP armoury and kit themselves out in the same gear."

Despite April's shifts, their panic late on in the campaign, and the narrowness suggested by the last polls in its final days, at no point did it seem absolutely clear to an informed voter, acquainted with the potential reverses of Fortuna, that Labour would lose, and lose by such a significant margin.  Labour experienced a political calamity that was not foreseen. Indeed, you might well argue that the scale of the calamity was precisely owed to the extent to which it was unforeseen. If my peaty devotee was a Tory sympathiser, the return of Labour government just couldn't be ruled out on May the 5th. The Alex Salmond for First Minister shtick explicitly appealed to these anti-Labour voters. While it certainly doesn't redound to the might, credit or allure of the Scottish Tories that they were unable to hold onto their regional voters, much of the moment on this score can, I think plausibly, be ascribed to Scottish Labour's combination of superficial strength - the risk of Iain Gray in Bute House - and their fundamental weakness. While it is no balm for their political leprosy, and little basis to feel encouraged that a revival in Scotch Toryism is possible, never-mind imminent - Conservative failures in 2011 have to be understood relative to their political competitors, and the fight to be a party of government (which realistically, the Tories were never involved in, anyway). While the most obvious victim of the Scottish electorate's brutal schadenfreude was Scottish Labour, the Tories owe it to Labour's perverse superficial hardiness that they too awoke that May morning, excoriated, and raw.

7 September 2011

Scottish independence: Yes 35%, No 58%

'Tis the season of the poll, apparently. To the full Scottish poll from Ipsos-MORI, and TNS-BRMB's findings on attitudes towards independence, we can add a second group of results on issues surrounding Scottish independence and the referendum.  In point of fact, these findings were elicited by Ipsos-MORI during the same course of fieldwork in late August which returned significant leads for the SNP in both Westminster and in Holyrood, from the same set of respondents. The pollsters also posed additional questions, not just about independence but asking about two important additions: (1) likelihood to vote and (2) the possibility of a second question, posing some species of maximum devolution, shy of Scottish independence, with sovereignty reposing in the UK. At the risk of turning my blog into an endless succession of disaggregated polling data on the cherished opinions of the Scottish populace, the results were as follows.

On more law-making and tax-taking powers...

Q1. "As you may know, the Scottish Government plans to hold a referendum on Scotland's constitutional future during the next Scottish Parliament. The referendum is likely to contain two separate questions. The first question will ask whether you agree or disagree with the proposal to extent the powers of the Scottish Parliament to include more laws and duties and all tax-raising powers, while Scotland remains part of the UK. If the referendum was held tomorrow, would you vote to agree or disagree with this proposal?"

The pollsters findings were as follows...

Total results ("maximum devolution")...
  • Agree  ~ 66%
  • Disagree ~ 26%
  • Undecided / Don't know ~ 8%

And in gendered profile...

Men ("maximum devolution")...
  • Agree  ~ 65%
  • Disagree ~ 27%
  • Undecided / Don't know ~ 8%
Women ("maximum devolution")...
  • Agree  ~ 67%
  • Disagree ~ 26%
  • Undecided / Don't know ~ 7%

By ancientness, on more devolution shy of independence...

18 - 24 ...
  • Agree  ~ 71%
  • Disagree ~ 18%
  • Undecided / Don't know ~ 12%
25 - 34...
  • Agree  ~ 69%
  • Disagree ~ 22%
  • Undecided / Don't know ~ 9%
35 - 54...
  • Agree  ~ 68%
  • Disagree ~ 27%
  • Undecided / Don't know ~ 6%
  • Agree  ~ 62%
  • Disagree ~ 31%
  • Undecided / Don't know ~ 8%

Ipsos-MORI also correlated attitudes towards this proposal with voting intentions in Westminster and Holyrood. You can look at the findings for all of the parties yourself on the second page of the full tables. In the context of Darth Murdo Fraser's proposals to transmogrify the Scottish Conservative and Unionist Party into a new, rechristened and re-imagined entity, it is worth explicitly remarking on how Conservative-voting respondents feel about the prospect of increased devolution of powers from Westminster. Of the 118 Westminster-voting Tories interviewed by the pollsters, the majority were overwhelmingly negative about the prospect of enhanced devolution.

Tories on "maximum devolution" (by Westminster voting intentions)
  • Agree  ~ 34%
  • Disagree ~ 60%
  • Undecided / Don't know ~ 6%

On independence...

Q2. "The second question will ask whether you agree or disagree with a proposal to extend the powers of the Scottish Parliament to enable Scotland to become an independent country, separate from the UK. If the referendum was held tomorrow, would you vote to agree or disagree with this proposal?"

In contrast with the TNS-BMRB findings, disagreement with independence predominates in the topline by a substantial margin...

Total results (independence)...
  • Agree  ~ 35%
  • Disagree ~ 58%
  • Undecided / Don't know ~ 7%

It is often contended that one reason for the historical "gender gap" in SNP support (ostensibly eliminated in recent Holyrood elections, by the by) was feminine constitutional risk aversion. On this theory, women are more cautious than men about abstract constitutional designs, and as such, may be more reticent about independence - and thus, the party of independence, the SNP. If so, that sentiment isn't captured in this poll. Genderwise, on independence, respondents divided in the following ways...

  • Agree  ~ 35%
  • Disagree ~ 58%
  • Undecided / Don't know ~ 6%
  • Agree  ~ 34%
  • Disagree ~ 57%
  • Undecided / Don't know ~ 9%

And by croneliness...

18 - 24 ...
  • Agree  ~ 46%
  • Disagree ~ 48%
  • Undecided / Don't know ~ 6%
25 - 34...
  • Agree  ~ 34%
  • Disagree ~ 57%
  • Undecided / Don't know ~ 9%
35 - 54...
  • Agree  ~ 35%
  • Disagree ~ 57%
  • Undecided / Don't know ~ 8%
  • Agree  ~ 32%
  • Disagree ~ 62%
  • Undecided / Don't know ~ 7%

Respondents views on independence by the party they support is inevitably a curiosity. Most folk who voted SNP don't believe in independence, has been a stress-relieving sentiment regularly squeezed out since May's Holyrood election. If this poll is anything to go on (and I have a great degree of sympathy with anyone contending that polls on this issue should be approached very gingerly, and any conclusions drawn or suggest ought to be very cautiously treated), while a substantial number of SNP voters don't support independence, it may be precipitous to conclude that the majority only etched their crosses against Maximum Eck out of jaded disgust with the Labour Party. 

SNP voters on independence (by Holyrood voting intentions)
  • Agree  ~ 56%
  • Disagree ~ 35%
  • Undecided / Don't know ~ 8%

Intention to vote?

Finally, a word on potential turnouts.  We might expect (and hope for) a high level of public engagement with the independence debate, with mobilised and enthusiastic committed voters both for and agin. When asked about whether they would vote in a Westminster General Election, 61% said they were absolutely certain to do so, with 59% declaring resolutely committed intentions to vote in any Holyrood election. Across age groups, intensity of commitment to vote varies significantly, with only 36% of 18-24 year olds saying they were absolutely certain to vote for Westminster, compared to 70% of folk over 55s. While there is plenty of opportunity for face-saving fibbing here - some folk will be understandably keen not to own up to squandering their democratic rights, because watching Diagnosis Murder on the telly takes precedence over a short traipse to their polling station - I was curious how any independence vote might differ. While they can shrug about general politics, are folk quite so willing to do so over the future of their nation? It appears they are not. 68% of respondents said they were absolutely certain to vote in an immediate referendum - with 74% of men absolutely certain and 63% of women. While still increasing by around 10 percentage points across the board, younger folk were less firm declaring in their intentions to vote than their older fellow citizens. 49% of 18 - 24 year olds feel sure they'd participate in the referendum, increasing to 58% of 25 - 34 year olds, 71% of 35 - 54 and 76% of over 55s.

Full Ipsos-MORI tables.