28 May 2011

On MacAskill's Newsnicht car crash...

In an interview with Gordon Brewer on Newsnicht earlier this week on the SNP's anti-sectarianism legislation, Kenny MacAskill used the words "matter" or "matters" no fewer than 35 times in an 11 minute interview. In my experience, the number of times the Cabinet Secretary for Justice uses this particular term is inversely proportional to the amount of sense he is making. It is what I like to think of as Kenny's Goldfish orator mode. Like the little brazen fishlet spinning forgetfully about in its bowl, when flustered, MacAskill has the tendency to lose the stream of his discourse mid-sentence - but not a moment stops nor stays he. With gallant mien, bravely he flippers on, in mounting and often comic circumlocution. Clarity is not its keynote.

Regular readers will know that I am intensely skeptical about the approach being taken by the SNP to its early legislative priority to "stamp out bigotry". Whatever one's view of the generality of the proposals themselves, Kenny's performance on Newsnicht seriously lacked credibility. The party leadership's public pronouncements on their plans thus far have been an embarrassing guddle. Are they proposing to legislate against threats of violence made online - or are they proposing to go beyond violence in a general attempt to criminalise uttering sectarian sentiments? Salmond certainly seemed to suggest so. If the government hope to go beyond incitement to violence, what precisely are they legislating against? Practically, speaking, how can such broad legislative intentions be framed in any satisfactory way in a piece of legislation? These are eminently fair questions, and thus far I'm afraid MacAskill and Salmond haven't been able to produce any remotely clear answers. All of this might be less concerning, if we could anticipate an extended process of reflection and deliberation on the Bill, scrutinised in depth by Holyrood's Justice Committee and subjected to independent analysis by figures outside parliament. In its urgency, however, the SNP Government is committed to passing their law before Holyrood goes into recess over the summer. Practically, this means a third stage vote on the Bill before the 30th of June. Time is short.  To be short on answers when one is proposing to close the book on the proposed law in just over a month, is frankly, idiotic.

I find it utterly incensing to be treated to pious homilies about supporting a piece of legislation, whose contents those proposing it show little indication of having determined or understood. For my part, I have sympathy with the idea of clearly criminalising making threats, if parliament is persuaded to do so might be helpful. As I've explained elsewhere, uttering threats is already a crime at common law, so a statutory offence is no radical departure. Similarly, I wouldn't want entirely to dismiss the idea that such legislation can "send a message", although compliance and (non)compliance with law is a complex social phenomenon. I can envisage how a new Act explicitly relating to conduct in football stadiums might achieve this, although the common law of breach of the peace already covers a great deal of conduct of this character. Again, no radical departure. Legally, such a reform may be of questionable necessity, but if a statute could have some wider social good - I wouldn't oppose that. It is really the third prong of all of this which has got my dander up, Salmond's supremely vague and illiberal proposition that...

 "I am determined that the authorities have the powers they need to clamp down effectively on bigotry peddled online. The Internet is a force for good in so many ways – but it can also be abused by those who seek to spread hatred. That’s why the Scottish Government will bring forward legislation as soon as we can to make such online behaviour, including posts on sites like Facebook and Twitter, an indictable offence with a maximum punishment of five years in jail."

Kenny MacAskill's interview was an excellent opportunity to clear up what all of this might mean in practice and to distinguish what they are and are not proposing to do. For my part, I'd much rather have a clear idea what the SNP is about, and enthusiastically disagree with it, than fray my mental fibres trying to weave something coherent out of a ragbag of inconsistent propositions and doe-eyed reassurances about the good intentions driving the escapade. Here's the transcript of the Newsnicht conversation. If you can make out head or tail of the Bill from Kenny's atrociously vague performance, you are of much greater acuity than I.

Gordon Brewer: "Where are you going to draw the line? I can see that there's an argument that says that if you incite violence against someone, that that should be a prosecutable offence. Is that what you are saying? Or will your internet crime encompass something broader than that?"

Kenny MacAskill: "Well there are two aspects that we're seeking to deal with. One is disorderly conduct, unacceptable behaviour at, on their way, to football games. In the stadia.  That's a matter where breach of the peace would be inadequate in many instances and that is why we do have to have a specific law as well as showing our opprobrium as a community and as a country. Secondly, incitement of hatred is something - and resulting in threats - these are matters that we're trying to make sure that we get the correct balance. Discussions are ongoing. We'll make sure we speak to opposition parties but what we're trying to deal with is those threats of violence in equally, at the same time, those incitement, that are unacceptable to right-minded people in Scotland. This is a small minority - but as I say..."

Brewer: "Hold on a second. There is a very important distinction between inciting acts of violence against another citizen and having opinions which people might find obnoxious. And I'm not clear whether you're saying that you are only going to legislate on the internet for the first, or whether you are somehow encompassing this much more nebulous concept of the second?"

MacAskill: "Well, the legislation won't simply be for the internet. If somebody put it on a placard or waves it on a T-shirt, inciting violence against another person, then that would be dealt with-"

Brewer: "But would it only be if you incite violence?"

MacAskill: "No, I think we have to go further than that. We have to make sure that matters which would be viewed as unacceptable by the ordinary man on the street, or woman, that is what we're trying to address."

Brewer: "Like what?"

MacAskill: "Well, as I say, I think it is quite clear that there are statements that are simply unacceptable on a religious basis and this is what we're looking into. In every piece of legislation, Gordon, the devil is in the detail. That is what's being looked at by parliamentary draftsmen. These are complicated matters."

Brewer: "Sure. But you surely can accept that there are potentially big dangers here. If someone says, in the course of a discussion on the internet, I think the Catholic Church, or the Church of Scotland - take your pick - has been a force for evil in society in 500 years and we'd be better off without them, you're not going to legislate against that are you?"

MacAskill: "No. We're not seeking to interfere with free speech and legitimate comment or indeed illegitimate comment that goes beyond what some ordinary people - many ordinary right-minded people - would think. So as I say, at the end of the day, the ultimate arbiter here will be the courts. It is a matter of common sense in many instances what prosecutors will bring. So as I say - "

Brewer: "But I'm curious about what you think the boundaries are. I mean, if you say someone is a - inverted commas, choose your swearword Catholic/Protestant - is that going to be a crime on the internet?"

MacAskill: "I think what we're looking to do is to deal with those cases where people are inciting matters that cause great distress and fear and alarm and where it goes beyond matters which could be viewed as minor banter. These matters have to be dealt with by the police and dealt with by the prosecution authorities with the ultimate arbiter being the court. What we're required to do as a government is to bring legislation which will provide that balance - and there does have to be a balance in all these matters between prosecuting what is unacceptable and intolerable in a tolerant society and protecting civil liberties."

Does anyone feel any the wiser about what the SNP government is doing? Does anyone feel remotely reassured that Kenny MacAskill has a clear and delineated sense of what the devil he's about? From the jadedness of his performance, you might hazard a guess that the man himself feels rather lukewarm about the wheeze. At one stage, the ordinary fellow in the street is the supreme arbiter of right-reason. If his conscience was offended, this new law would be offended. Moments later, this commonplace customer is told to stuff any sense of outrage he might have, in the name of free speech. Despite perfectly clear, fair and direct questioning from Brewer, the relevance of violence and threats remains totally opaque, although it seems clear the SNP will try to give the idea of "peddling bigotry online" some legal substance. I almost fell out of my chair at the Cabinet Secretary's final remarks - commending that we trust the police, trust prosecutors and trust courts - precisely the suspect formulation I anticipated and criticised in my first post on this issue. At this stage, on this element of the Bill, I thoroughly agree with Alex Massie:

"It cannot, as the proposals stand, be thought fair, proportionate or workable. Nor is it a braw step for the brave new Scotland to create a new class of "Thought Crime", criminalising opinions merely because parliamentarians find those views distasteful. In short, as the proposals currently stand this is a nonsensical, hideously-sweeping and illiberal piece of speech-curbing malfeasance that, in terms of its narrower objectives, is scarcely needed in the first place and that, more broadly speaking, is a grotesque infringement upon liberty and common-sense alike. No wonder it's a favoured party-piece and just the sort of Bad Idea politicians find irresistible." 

So what the devil can the SNP do to get out of this muddle-guddle rapidly and with credible and concrete proposals? The answer, I suspect, will be the same one reached by the schoolboy who forgot to do his homework the night before and finds himself in a morning's panic before his first lesson - he'll peep over the shoulder of one of his fellows, and copy down their work instead, passing it off as his own.  As we discovered by looking into Iain MacWhirter's poorly informed Herald column earlier this week, stirring up hatred against persons on religious grounds is not an offence in Scotland, Tony Blair's broadly-discussed 2006 Act applying only in England and Wales. It would be an obvious and speedily solution to Scottish Ministers' unnecessary self- (or rather Eck-) imposed expedition, simply to amend the Public Order Act of 1986 up here too, so incitement of religious hatred became a stand-alone Scottish offence. It would also provide the opportunity for Ministers to use favoured commonsensical formulations and metaphors about "bringing Scotland into line" with the position South of the Border, supplemented by its air of "modernisation" and "updating" fustian legal norms with lively contemporary standards. 

While an obvious solution to the SNP government's anti-sectarian conundrums, for Holyrood breezily to pass such an offence in a single month ought to be scandal. In Westminster, it took the Labour government a number of attempts and a number of months to pass its Racial and Religious Hatred Act 2006, the government majority being frustrated at many points along the way, by the House of Lords and its own backbenchers. And Holyrood could do such a thing in thirty days, without pause to consider its implications or time to doubt? For shame.

26 May 2011

MacWhirter's legal bunkum on sectarianism...

I'm afraid to say it, but Iain MacWhirter's column in the Herald this week is embarrassingly ill-informed. He takes up the issue of sectarianism and the SNP's still vague plans to criminalise "peddling bigotry online", about which I have expressed my qualms before on a number of grounds, principled and practical. We clearly disagree on that. However, what concerns me is that MacWhirter's position is underpinned by a number of unhappy legal inexactitudes. He writes...

"Last year a blogger, Mohammed Sandia, was successfully prosecuted for posting antisemitic comments on the internet, so it is not true that the net is beyond the law. Indeed, many of the same newspapers who only last week were lamenting the futility of superinjunctions, have this week been calling for a clampdown on other forms of lawbreaking on the web. Does this mean that internet service providers and hosting companies, as well as individual websites are going to have to behave as responsibly as TV, newspapers and magazines?  If I gave vent to sectarian hate crime in this column, the editor would go to jail for publishing it and so would I. There is no reason why this should not apply to an internet publication. Facebook, YouTube and Twitter operate within a jurisdiction, and are therefore subject to the law of the land, otherwise it could be prevented from operating here. The problem here isn’t one of law, but of enforcement."

If you look into the case of Mohammed Sandia, however, you'll discover that the individual in question was prosecuted under the provisions of the Public Order Act 1986. More specifically, Sandia pleaded guilty to publishing written material which was threatening abusive or insulting "whereby having regard for all the circumstances racial hatred was likely to be stirred up."  Critically, "racial hatred" as defined in the Act is "hatred against a group of persons" defined "by reference to colour, race, nationality (including citizenship) or ethnic or national origins" (§17). Its applicability in the Sandia case relies on the classification of Jews in racial, national or ethnic terms - rather than their religious beliefs as MacWhirter implies in this piece. As a result, while this section of the 1986 Act does seem likely to apply to stirring up hateful anti-Irish feeling, its applicability to particular religious sects in the Christian tradition is highly dubious, requiring an unholy interpretative stretch. 

So why does MacWhirter think he would go to jail for "sectarian hate crime"? What offence does he have in mind and where is it to be found? He furnishes no clear answers on this score, but I fancy MacWhirter is referring to the highly controversial and debated provisions of the Racial and Religious Hatred Act 2006. Passed by Tony Blair's Labour Government in Westminster, the Act amended the 1986 to criminalise "stirring up hatred on religious grounds", defined as "hatred against a group of persons defined by reference to religious belief or lack of religious belief". MacWhirter clearly hasn't troubled himself to read §3 of the 2006 Act, however, which goes under the admittedly drab-sounding title of "Short title, commencement and extent". If he had consulted this clause of the legislation, he'd see that the new offence of incitement to religious hatred only applies in England and Wales, and does not extend to Scotland.  He boldly declaims "people may disagree with such controls, but it is the law, and the law is there to be enforced." As we have seen elsewhere this week, invocations of the law of the land is generally suspect in a legally pluralistic state such as the United Kingdom. I know of no statute passed by Holyrood - at least thus far - explicitly mirroring the "religious hatred" provisions of the 2006 Act.

So "stirring up religious hatred" isn't an offence known to Scots law. Perhaps MacWhirter has in mind some creative application of the common law? Or perhaps § 38 of the Scottish Parliament's Criminal Justice and Licensing Act 2010, which criminalises "threatening of abusive behaviour", and could be taken to include writing online, applying as it does to "any behaviour of any kind including, in particular, things said or otherwise communicated". In Scotland, one could make the argument that some forms of writing or performances, posted online, constitute a breach of the peace aggravated by religious prejudice. A University of Stirling student was arrested and charged earlier this year for posting pictures on himself on Facebook, wearing a Postman Pat costume, and carrying a parcel addressed to Celtic manager Neil Lennon. For my part, although I have only seen part of the image, with much of the parcel text redacted, I struggle to understand the religious prejudice immediately disclosed by the photograph, never mind that it constitutes both “conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community” - the legal definition of breach.

Moreover, in the discussion surrounding the new legislation, Scottish Government figures have suggested that they are increasing sentencing powers from six months to five years for "sectarian hate crimes". Frankly, I'm a bit bamboozled about what the media are referring to. While statutory offences generally prescribe a maximum penalty, sentencing powers are also determined by the judicial forum in which an offence is prosecuted, Justice of the Peace court, summary Sheriff Court - and so on. While some offences are triable only summarily (i.e. without a jury) or must be tried solemnly (with a jury), a great many offences can be prosecuted in either manner. While religious and racial motivations - amongst others - can be added as aggravations to other offences, I can't for the life of me uncover what Scottish offence criminalises "sectarian hate" - not a legal phrase, I'll be bound to say - attracting only a six-month custodial penalty at the highest. All insights appreciated, if anyone else has been able to come to a clearer idea than I about what the devil they're talking about. At least infosar as MacWhirter's article goes, however, it seems much more likely to me that MacWhirter thinks the 2006 Act applies in Scotland, rather than lending his mind to the flexibility of Scotland's criminal laws and the open-endedness of our recently-passed penal statutes.

Practically, one should add, the English offence of stirring up religious hatred, despite not applying in Scotland, can have significant impact on writers and publishers north of the Tweed.   For example, as we have seen with the Sunday Herald's sally into the "superinjunction" controversy by naming the footballer in question on its front page, precautions are necessary if papers are to avoid being taken by English courts to have "published" the material in England. While emblazoned starkly on their front pages, the Herald conspicuously avoided putting the man's face online or references to his name on the web, limiting the "publication" to their print circulation. In a similar mode, if MacWhirter was desperately keen to pen a column actively inciting religious hatred - barring intervention by Scottish authorities on the basis of rather vague common law crimes - if the piece only appeared in the Herald's print edition, I see no legal reason (but am happy to be corrected, if there's something I've overlooked) why he or his editor need fear being slammed up with their chamberpots by English or Scottish courts.

It isn't the law, and what isn't law isn't there to be enforced.

25 May 2011

The Gurnian, Britishness, and its one-faced Janus...

For those who keep an eye on the London-based UK press, its collective reaction to this month's Holyrood result has been rather queer, particularly in the comment section. Without making any claims to comprehensiveness, recent pieces have included Tim Lott, writing in the Independent, who snarls "Good riddance to this unequal Union..." Quentin Letts in the Daily Mail cries, more simply "Good riddance!"  A dyspeptic David Mitchell wrote in the Gurnian "If Scotland does secede, I won't be alone in mourning my country" and elsewhere in the same publication, Simon Hoggart argues that "Scottish independence is a win-win situation" while Simon Jenkins argues that "It is time for England's first empire to get independence".  Stephen Moss, another Guardian contributor, begins his piece with the pious saw "I dislike nationalist politics" and continues in a similar vein. Madeleine Bunting strikes a different note, worrying that "If Scotland goes, all we'll have left is the Englishness we so despise". The piece is an interesting example of the micro-politics of "we" - with its implicit judgement that she is an English writer, writing for an English audience - with reference to a Scots they.  As a political nationalist, I have nothing against such distinctions in general terms, although they take on an greater significance, when one reads them in the pages of a paper purporting to be addressed to every limb of the British body politick on equal terms. 

That thought moves us on to another - one of the striking features of much of this commentary is that it originates from publications which generally show almost no interest in Scotland at all. For my money, of the metropolitan press outfits, the Times and Telegraph generally are the best of a bad bunch. While the Guardian is consistently useless, it is in turn outclassed in mediocrity by the worldly Independent, which contrives almost never to mention the place. On Scotland and the animating forces of Scottish self-determination, each of these comment pieces miss their mark - leaving a sense of their failure to understand Scottish political life, missing its spirit, misconstruing its features - and failing to notice their failure. The authors tend to squash their data into arguably inappropriate frames of reference - most prominently the perennial Union squint, with its pale-green, woozy and distorting Westminster-glass spectacles. Equally significantly, you'll notice that a great many of these articles are from writers emblematic of the economically comfortable metropolitan soft-left, by authors who conceive themselves as cosmopolitan, liberal and open-minded, writing in papers broadly sympathetic to the Labour Party in the UK context. 

These is much in these articles that is vapid, insulting - and plenty to vex. They distil a very clear sense of feeling wounded - bee-stung and befuddled - not really understanding from whence the swarm descended, why it is picking on you, or what its pricks really signify. What does an independence referendum mean? What are the Scotch saying about us, by organising one? What is so wrong with us anyway? What do the ungrateful so-and-sos have to complain about? I am reminded of an old Billy Connolly joke about a Cardinal visiting his erstwhile Catholic primary school in Glasgow, where he is insulted by a grubby little boy. The great prince of the church regales the dirty-arsed tyke with a litany of his ambitions realised and honours hard won, ending "And you're telling me to fuck off? You fuck off!" Connolly's comic tale includes a number of pertinent parallels - the horrid wean was insultingly indifferent about the Cardinal's laboriously secured trappings. He is insecure about his acquisitions. The gag partly relies on the piquancy of the Cardinal proving just as foul-mouthed as the wean who offends him, partly by the lout prodding an obviously sore spot for the pompous priest, prompting his bruised reply. The Holyrood election result, with its independence referendum implications, has clearly prodded a sore spot for soft-leftish parts of the London media. The interesting question, it seems to me, is why is this spot sore at all, and secondly, why this particular pain? There are a number of elements worth thinking about here. I intend to return to the presumptions about public spending dominating these articles in a subsequent piece, for reasons of brevity [sic] as much as anything else. For now, a few general thoughts of introduction about where these extraordinary series of articles come from.

Living down south as I do (in deepest Oxfordshire), I fend off bizarre misconceptions about Scottish Nationalism on a fairly regular basis. Since the election result, I've encountered a number of folk whose views are enumerated more substantially by Lott and the rest in their articles. Echoing certain historical accounts one can find of the Scots in the early years of the Union, our merry band is viewed as in it for all we can get, girning freebooters loading up carts with English lucre, tripping it off home, without the grace to be grateful - and even going as far as to impugn and insult the political settlement that has bestowed such riches upon us. My interlocutors and the Gurnian and Independent columns generally share this understanding - and confusion - about how to interpret what has got the Scots hopping. Their reaction is that of the self-consciously charitable man whose largesse is met with a kick from the beggar he thought to aid, who has the temerity to damn his eyes for a scoundrel - while keeping his coin.

Secondly, I'm willing to hazard a guess that many of the columnists and the educated, politically interested English folk I've been talking to are united in their subjective suspicion of "nationalism". Neither group have any real Tom Nairn-inspired sense of Nationalism as Janus-faced, where the potentially reactionary content of the ideology is not repressed, but nor do negative manifestations negate the emancipatory potential of nationalisms. Reading and talking with folk entertaining such suspicions, I was struck the extent to which they were totally unaware of what Orwell might have called their "objective" British nationalism. While subjectively disavowing the same, piously disdaining nationalistic sentiment as the hunched proxy for racialised thinking, their whole political practice relies on the conflation of urbane, vaguely open-minded cosmopolitanism with the hodgepodge Dame Union. Internationalism's rags and rouge are pressed into lurid service, hardly concealing the old girl's nakedness, nevermind her shame. Ideologically, the muddle does a great deal of work - primarily negatively, as a means to deploy anti-nationalism skeptically to probe Scottish nationalists in general - while comfortably obscuring the implicit nationalism of their own position.  Ironically, this version of Brit-Nattery earnestly insists that nationalism can only promise a blight of discord and division, while their own Union Jacks are no more than gossamer about their shoulders, worn lightly, and harmlessly. This at least has the benefit of being consistent - I don't experience Britishness as a blight of discord and division, ergo, I'm not a nationalist for supporting Britain's continued existence and opposing political alternatives. Put more simply, it is a case of "I'm not a nationalist, I'm just British." Chocks away!  

The definition of nationalism consistently deployed in this argument is hopelessly simple - but it presents few problems for those of us willing to concede Nairn's nationalist Janus, without insisting that both of his faces necessary bear the same handsome, benign expression. Mitchell and others can only see the snarling phizog with its hard exclusionary gaze, saving a more encompassing and positive nationalism by way of a bit of verbal sophistry about good patriotism and bad nationalism.  Bunting's Guardian piece appears more comfortable with the language of nationalism than her colleague - and perhaps puts this conundrum most clearly. Bereft of Britishness - her ethnically encompassing, generous "good" nationalism - she fears being abandoned with Englishness, which she perceives as Janus's racialising leer, "bad" nationalism. Few of the London-based commentators appear to credit the notion, never mind take seriously the proposition, that Scottish nationalism's ruling political spirit is of the former rather than the latter character and can at least make the case that it is much more consciously committed to an inclusive civic nationalism than the often waif-like and lost account of contemporary Britishness.

"And, like a dying lady lean and pale,
Who totters forth, wrapp'd in a gauzy veil,
Out of her chamber, led by the insane
And feeble wanderings of her fading brain..."

Since the election, I have met a number of folk who do not make a habit of attending to political speeches, but who profoundly identified with the sentiments expressed very early on in Alex Salmond's speech on being elected first minister. "Moved and proud", one friend said he felt. I for one have never heard a British politician talking like this...

“When Donald Dewar addressed this parliament in 1999, he evoked Scotland’s diverse voices: “The speak of the Mearns. The shout of the welder above the din of the Clyde shipyard. The battle cries of Bruce and Wallace.” Now these voices of the past are joined in this chamber by the sound of 21st-century Scotland. The lyrical Italian of Marco Biagi. The formal Urdu of Humza Yousaf. The sacred Arabic of Hanzala Malik. We are proud to have those languages spoken here alongside English, Gaelic, Scots and Doric. This land is their land, from the sparkling sands of the islands to the glittering granite of its cities. It belongs to all who choose to call it home. That includes new Scots who have escaped persecution or conflict in Africa or the Middle East. It means Scots whose forebears fled famine in Ireland and elsewhere. That is who belongs here, but let us be clear also about what does not belong here. As the song tells us, for Scotland to flourish then “Let us be rid of those bigots and fools / Who will not let Scotland, live and let live.” Our new Scotland is built on the old custom of hospitality. We offer a hand that is open to all, whether they hail from England, Ireland, Pakistan or Poland. Modern Scotland is also built on equality.”

23 May 2011

"If such be the law of England..." #superinjunction

Scots lawyers in the early years of their legal education are invariably exposed to Lord Cranworth's notorious if not exactly celebrated aside in his speech in Bartonshill Coal Co v Reid (1858) 3 MacQ 266 (at 285): "If such be the law of England, on what ground can it be argued not to be the law of Scotland?" Such follies are not unique to Victorian Law Lords. Just as the metropolitan "centre" of British political affairs is so often tone-deaf, clumsy and clueless in its understanding of Scotland, its creatures' consciousness and understanding of the United Kingdom's legal pluralism is, if anything, even more lamentably inadequate. London's many Cranworths revealed themselves in full surprise this weekend, as the Sunday Herald published the identity of a soccer player "CTB". The relevant details about the case - excluding the identity of the footballer, lately appearing on the front page of the Scottish Sunday - are set out in the judgment of Mr Justice Eady in the High Court of Justice, and I shan't attempt to parse them here. 

Unfortunately for the footballer in question, it appears he was poorly advised on the force of an English injunction in Scotland, however grandiose its purported sway.  Quoth Paul McBride QC...

“English law injunctions do not have jurisdiction in Scotland. If a party wanted to restrict the Scottish press, as well as the English, it would need to undertake parallel legal proceedings in Scotland, in order to obtain an “interdict”. This did not happen in the present case and so the Scottish press is not bound by the English injunction.”

With his usual lawyerly prescience, Scotland's foremost scone-and-law blogger, Love and Garbage saw this coming and enjoys a well deserved gloat at the expense of the shallowpated Cranworths, whose baseless assumptions have been so comprehensible (and foreseeably) diddled by the Sunday Herald. I commend his posts on the topic to those of you, seeking a more substantial (but entertaining scone-addled) analysis of the ongoing "superinjunction" controversy, from a Scottish perspective.

21 May 2011

SP11: BNP in Scotland...

In the Westminster General election of 2010 that punted the present mottled coalition into power, a queer thing happened in Banff and Buchan. Nationally, the British National Party attracted only 8,910 votes, standing in thirteen Scottish constituencies. Elsewhere, in primarily urban seats such as Glasgow and Dundee, the party managed only hundreds of votes - but Alex Salmond's old waddling ground up in the North East cast some 1,010 votes in favour of the BNP.

As I have noted here before, I'm from the opposite side of Scotland myself - head down and west and squint into the stinging surf of the Atlantic - so I could only examine Banff and Buchan's outstanding BNP result with a measure of bemused perplexity. At the time, commenter Doug Daniel, himself a north eastern loon, offered this account of the constituency's Westminster results. With that tucked away in the back of my mind, I was interested to see how the racist British Nationalists fared this time around, in particular in the North East Scotland regional ballot. 

In 2003, the BNP did not stand in the Scottish Parliament elections. In the 2007, they polled at 24,616 votes across the Scottish regional lists, 1.2% of the national poll and secured no parliamentarians. In the North East Scotland, the party secured only 2,764 votes, constituting just over 11% of the national BNP total.  Elsewhere in 2007, they attracted 4,125 votes in Central Scotland (16.8% of the party's national poll); 3,865 in Glasgow (15.7%); 2,152 in the Highlands and Islands (8.7%); 2,637 in the Lothians (10.7%); 2,620 in Mid-Scotland and Fife (10.6%), 3,212 in the South of Scotland (13.0%) and 3,241 in the West of Scotland (13.2%). In contrast with the Westminster result in Banff and Buchan, more generally, the North East comes in fifth of eight regions in terms of the magnitude of the BNP vote. 

So how fared the party, four years on? The answer, gratifyingly, is pretty disastrously.

Nationally, the BNP only managed 15,580 votes this time around - a vote share of 0.78%, a fall of 0.42% on their 2007 performance - and a whopping 9,036 fewer regional votes than they secured in the preceding Holyrood election. And on a regional basis? A shrinking BNP vote across the board. In Central Scotland, the most promising region for the BNP based on 2007's results, the party's support was cut in half, decreasing by 1,911 votes to only 2,214 in this election. 

In the Highlands and Islands, the region where the BNP vote was at its lowest ebb in 2007, recorded a contraction of a similar magnitude, the party's support decreasing by 1,018 votes to 1,134.

In my own region of Glasgow, BNP support fell by 1,441 votes to 2,424

In Lothian, 1,978, voters continued to exercise their franchise in the party's favour, albeit deserted by 659 erstwhile fellow travellers of 2007. 

In South Scotland, 2,017 voted BNP in 2011, a decrease of 1,195 votes. 

In Mid-Scotland and Fife, 1,726 folk supported the BNP, down by 894 on their 2007 support, while in West Scotland, 2,162 electors chose Nick Griffin's crew, a decreased turnout of 1,079

And our old eldritch friend, the North East? This time around, the region cast only 1,925 votes for the BNP, down 839, meaning the region casts fewer ballots for the racist BNP than every other region except Mid-Scotland and Fife and the Highlands and Islands.  If anything, the results simply makes more bemusing 2010's relative successes for the BNP in Banff and Buchan - suggesting that the result may best be explained by some curious local element which escapes my ken at this inscrutable distance. However, as a helpful mustelid has pointed out, all is not quite what it seems on the basis of the BNP figures. The National Front also stood in the North East region this time around, but nowhere else in the country. While the 640 votes it polled are easily overlooked in national terms (and I did precisely this), all of these votes were from the North East Region. When this divided racist vote is combined, National Front and BNP, the North East cast 2,565 votes for racist parties - overleaping the others as the pre-eminent fascist-supporting part of the country. While this bloc vote fell in 2011, the decrease was only in the magnitude of a couple of hundred.

In any case, it is cheering to see that the villains got the bum's rush all across the country, deserted by over a third of those Scots who supported them in 2007 and crashing to less than 1% of support nationally.  A re-elected SNP majority, the Labour Party crushed, the Liberals confounded, the Tories stymied and the BNP rapidly atrophying across the nation? As my classically effusive Scottish grandfather might have said, with a fond twinkle, "Not bad".

20 May 2011

Yes (Scottish) Minister: Episode 1...

"Atten-shun! Do swear as medical duty, the following ministers - fit to serve. Or at least. Um. Appointit..."

Scottish Ministers...

Alex Salmond: First Minister

Nicola Sturgeon: Deputy First Minister and Cabinet Secretary for Health, Wellbeing and Cities Strategy
  • Shona Robison: Minister for Commonwealth Games and Sport
  • Michael Matheson: Minister for Public Health 

John Swinney: Cabinet Secretary for Finance, Employment and Sustainable Growth
  • Fergus Ewing: Minister for Energy, Enterprise and Tourism
  • Aileen Campbell: Minister for Local Government and Planning

Michael Russell: Cabinet Secretary for Education and Lifelong Learning
  • Angela Constance: Minister for Children and Young People
  • Alasdair Allan: Minister for Learning and Skills (with responsibility for Gaelic and Scots)

Bruce Crawford: Cabinet Secretary for Parliamentary Business and Government Strategy
  • Brian Adam: Minister for Parliamentary Business and Chief Whip

Kenny MacAskill: Cabinet Secretary for Justice
  • Roseanna Cunningham: Minister for Community Safety and Legal Affairs (with responsibility for tackling sectarianism)

Richard Lochhead: Cabinet Secretary for Rural Affairs and the Environment
  • Stewart Stevenson: Minister for Environment and Climate Change

Fiona Hyslop: Cabinet Secretary for Culture and External Affairs

Alex Neil: Cabinet Secretary for Infrastructure and Capital Investment
  • Keith Brown: Minister for Housing and Transport

Law Officers...

Frank Mulholland: Lord Advocate
  • Lesley Thomson: Solicitor General

There we have it. The final ministerial team. Plenty of talented folk there and a great deal of continuity across the top tier, with the elevation of that old pickle-faced pugilist Alex Neil probably prompting the most comment. Just a few, brief thoughts. It may have been Beaker's midwinter, but you'll see Alex Salmond has thawed out his old crony Stewart Stevenson as Minister for Environment and Climate Change, thereby depriving the Banff and Buchanshire MSP of time he could have otherwise have devoted to recreational flying. According to my network of peat worrying informants, Roseanna Cunningham didn't prove much of a hit in her previous role dealing with the Environment and Climate Change, although this may simply reflect on the calibre of the chap she replaced. Pat Kane memorably sketched his impressions of Michael Russell, who keeps his Cabinet education role, in a Caledonian Mercury column a while back. Kane said...

"Let your eyes film over, and you can see him in gaiters and periwig holding forth in an 18th century coffee-house, or perhaps in pith-helmet and wire spectacles lieutenanting some still-red section of the World Atlas."

'Mon the perukes! But I digress. Perhaps a more legally-oriented brief, more consonant with Roseanna's background will better serve her capacities (she qualified in Scots Law and as an advocate before entering politics). It would be remiss of me not to mention, in the context of imminent (and in my view potentially exceedingly unwelcome) legislation criminalising online sectarianism, that it may not be coincidental that Salmond has chosen to appoint a weel-kent and devoted Roman Catholic with a specific remit over this aspect of the broad justice portfolio. Fergus Ewing, himself another tidy old legalist, shuffles out from under Kenny MacAskill, to cabal with John Swinney as Minister for Energy, Enterprise and Tourism. 

I confess, I was a little disappointed to see Frank Mulholland QC appointed Lord Advocate to replace Elish Angiolini, not least because it was terrifically predictable. More substantially, in my limited experience of the fellow, he gave what was (in my view) rather unhelpful advice to the ad hoc parliamentary Committee which scrutinised Margo MacDonald's Assisted Dying Bill in the last session. Obviously, responsibility for failing to ask the needling questions must lie with parliamentarians, rather than the Solicitor-General as Mulholland was, but it wasn't a particularly impressive showing from the man who now not only heads up the Scottish prosecution service, but must advise the Scottish Government on matters legal, well outside Mulholland's more narrow criminal specialisms.  My erstwhile lecturer from my days in Edinburgh Law School, Robert Black QC, has expressed his own qualms, arguing on his Lockerbie Case blog...

"This appointment is not unexpected, but it is to be regretted. Virtually the whole of Frank Mulholland's career has been spent as a Crown Office civil servant. This is not, in my view, the right background for the incumbent of the office of Lord Advocate, one of whose functions has traditionally been to bring an outsider's perspective to the operations and policy-making of the department. Sir Humphrey Appleby was an outstanding civil servant of a particular kind, but his role was an entirely different one from that of Jim Hacker and no-one would have regarded it as appropriate that he should be translated from Permanent Secretary of the Department of Administrative Affairs to Minister (or, indeed, from Secretary of the Cabinet to Prime Minister)."

Caveats despite, I wish all of the newly appointed ministers well in their respective roles, particularly those entering office for the first time. By my reckoning, the SNP's Aileen Campbell, elected for Clydesdale, must be the youngest-ever second youngest Scottish Minister to take office since devolution*, appointed today in her tender years, aged only 31.

*Shortly after publishing this, my late-week addled mental fibres were tested by trying to deduce whether Labour's Alasdair Morrison, who was made a Deputy Minister in Donald Dewar's first Executive, actually snatches the youthful garland from Campbell's head. Some strangulated elementary mathematics reveals that Morrison was aged only 30 when he was appointed Deputy Minister for the Highlands and Islands and Gaelic in 1999, confirmed by the Executive's press release of the day. Since Aileen is definitely aged 31, albeit only celebrating her birthday a few days ago, I erred by initially identifying her as Holyrood's youngest ever Minister. Apologies and thanks to Bright Green's Peter McColl, for helping me finally to muddle through to the correct answer!

19 May 2011

Against criminalising "bigotry peddled online..."

My own views on sectarianism are awfully anodyne. I don't take in the football, on the terraces or on the telly. I am interested in religion, but it is with the bloodlessness of atheistical intellectual curiosity. I was raised in a household whose characteristics were overwhelmingly, atheism existentially untroubled. I am not baptised. As a wean in a wee school on the extreme west coast of the country, I was aware that a few fellow pupils were Catholics, but frankly, the tag had as little significance for me as affiliation with the Church of Scotland around the corner. For my younger self, no doubt already over-keen on flouncy verbiage, being an Episcopalian seemed an obscure and curiously much more romantic idiosyncrasy. The community was not pious. One generation back, Mater and Pater Peat Worrier can recall sites explicitly structured by sectarian logics - the golf club that will not admit Catholics and so on - but in my life, the phenomenon is basically inexplicable, absent from my direct social experience, elsewhere in its setting. 

On my father's side, I only recently discovered that his father had been a Catholic, although not of Irish provenance, while my grandmother's relations include a Church of Scotland minister. My mother's side of the family tells a similar story, albeit with the daughter of an Irish Catholic family marrying my other grandfather, who was a Protestant of limited religious conviction, best I can discern. All involved are now dead, so testimonials cannot be sought. However, there is no abiding sense of sectarianism as an "issue" in the family memory. I have some general awareness of the history of misdeeds and sufferings caused by sectarian hatreds in Scotland, contemporary and ancient, and accept that Scottish public life must take seriously - and reflect deeply - on the phenomenon of sectarianism, and its brutal wages. Such reflection is not, it seems to me, terrifically straightforward. Analytically, we're dealing with a number of commingled things - religion, football, ethnicity, ubiquitous issues caused by moronic and aggressive Scotsmen on the skite, songs, symbols, sentiments, beliefs and violence. 

Even reading off the surface language is problematic. Is the social problem really attributable to the religious contents of chants? Are drunken acts of violence and vitriol spouted deducible to remotely coherent ethnic theories about the Irish, or understandings of Irish history, of Revolutions more or less glorious, Catholic doctrine, or Protestant beliefs? Alternatively, should we scrabble about elsewhere for explanations, looking to the psychological function served by sectarian divisions, where ideologies are pressed into service as a clueless language for the expression of other social pressures and tensions? For many, these questions may seem to miss the point of sectarianism as a brute reality, with material victims and wounds. A certain impatience with abstraction is, I think, understandable. Yet it does to realise that our understanding of the scope of the "problem" of sectarianism will begin to entail the sort of solutions we devise and expedients pressed into service. How you frame a question very often limits the sort of answers you will generate.  Analytically, it is vital to realise that commonsensical simpletons are no less abstract than those tempted to ask these questions, they just lack the self-reflection.

"We will adopt a zero-tolerance approach to football-related violence and prejudice, including domestic abuse, alcohol misuse, racism and sectarianism, and we will work with the police and wider community to clamp down on such intolerable behaviour."

Thus read the SNP manifesto. But what the devil does zero tolerance actually mean in practice? Kenny MacAskill and Alex Salmond have been quick to explain their position. Of the "new laws to tackle online bigotry" he has planned, Salmond has said:

"I am determined that the authorities have the powers they need to clamp down effectively on bigotry peddled online. The Scottish Government will bring forward legislation as soon as we can to make such online behaviour, including posts on sites like Facebook and Twitter, an indictable offence with a maximum punishment of five years in jail."

It is difficult to judge a potential Act on the basis of a couple of sentences, but in general terms, I find this an exceedingly unwelcome and illiberal proposal.  Even provisionally, let's try to unpack some of the laden terminology Salmond is using here. Notice the First Minister is not talking about violent threats, but a much more general course of "bigoted" conduct. As well he might.  It is, admittedly, an archaic corner of our criminal law, but uttering threats to kill or injure anybody - whether in words or in writing - is already a criminal offence at common law.  As you would expect. Moreover, as in the case of vicious poison pen letters, it is not even necessary that the epistle reaches its intended victim. Postage is quite sufficient. Analogously, there seems no good reason why the victim of threats online would have to encounter the vitriol personally, for it to constitute a punishable offence of uttering threats.  Clarity on this point is vital.

How is "bigotry" to be defined? "To peddle" is not a legal verb. How are such peddlers and hawkers of "hate" to be identified? Scots Courts have found that singing "the Famine Song" - with its refrain of "the famine's over, why don't you go home" - crying "Fuck the Pope" and "Fenian bastards" are racial and religious aggravations to a breach of the peace, when chanted at a football match.  Is Salmond proposing to make uttering (or rather, typing) such sentiments per se criminal? On twitter, you've only got 140 characters to play with, so he clearly has it in mind to prosecute the coiners of some fairly clipped phrases.  Without giving us any examples of what sort of behaviour, words or ideas he is taking about, Salmond breezily advances to the penalties, leaving us to fill out the completely opaque concept of "such online behaviour" for ourselves. No doubt the Bill will come forward in due course and will hopefully make some attempt to define these open-ended terms. However, I'm not optimistic.  The Nationalists have demonstrated little interest in arguments for personal liberty, and the importance of toleration despite the ugliness, wrongheadedness and blockheaddedness of the tolerated, particularly in the domain of speech. Like the whole parliament, SNP parliamentarians have been terrifically keen on passing ridiculously broad penal statues.  For example, in the last session, Holyrood passed an Act which on its face, defines two juveniles joining together to steal a bridie as serious organised crime. The point is categorically not that these legal innovations are aimed at banging up hungry but larcenous duos. Each piece of legislation has had a comprehensible purpose and intention, aiming to use the criminal law to regulate behaviour which I think the community would unite in regarding as problematic.

Most often as not, good broad intentions struggle to find a satisfactory statutory definition.  Where defining the scope of criminalisation has proved problematic, in almost every case, parliament has pressed on, answering trust the law officers, trust the police, trust the courts. Which is, often as not, simply shorthand for this is a terrifically complicated issue, and we only want some of these malefactors prosecuted, so let's just pass a really broad Act and cross our fingers that the procurator fiscal use their best judgement to persecute those who really deserve it. 

This approach to law reform has a number of rather queer features, but perhaps the most paradoxical is that our MSPs pass Acts on the basis of reassurances that they won't be enforced according to their letter. Practically, this also gives the lie to the commonly held idea that Procurators Fiscal and courts simply apply the law, cracking any image of a mechanical bureaucracy simply "implementing" the pre-ordained projects handed down by those enjoying democratic legitimacy, who have already settled all of the high questions of "policy". Practically, of course, things are a bit more complicated. Many studies have demonstrated that what seems rule-bound legally may be highly discretionary in practice - discretion being strongly implicated in the use and application of even the clearest of rules. In the other direction, research has also found that open-textured statutes, whose language apparently affords plenty of discretion to courts and prosecutors, are in practice rather more regulated by social rules and broader organisational values than a legal analysis would suggest. Anyone attached in any respect to the idea that there should be the rule of law, and sympathetic to the idea that the rationally-calculating citizen should be able to acquire a reasonably clear idea of what falls within our outwith the category of the criminal, needs must be unsympathetic to this approach. Parliament, however, has rarely heard much dissent of this character expressed. Where problems with definitions have been identified by parliamentarians, these tend to make little difference in the final analysis, and the Bill is meekly passed despite its inscrutable terminology. Trust us, purr the Crown witnesses. And parliament blithely takes prosecutors into its confidence.

However, is this approach really acceptable? Should we overcriminalise and leave it to the Lord Advocate and his or her assistants to decide? Cannot sectarian sentiment be condemned - and action punished, and threats of violence investigated and brought to Court - without resorting to extreme general measures, vaguely drafted? I am not suggesting that the prosecution service in Scotland will use such powers unethically, or even unwisely. As is so often the case in this world, the mischief is the pervasive good conscience of everyone involved. I repeat, all of these broad Acts have been aimed and substantial social woes. However, we should ruthlessly reject the simpleton's false modesty, that holds out that something must be done, this is something, therefore we must do it. Doubly so, when we are plotting to subject the country's idle, even sectarian tongues to the vice of a vague and potentially capricious criminal law. Where is liberty's refuge in that doubt-riddled jurisprudence? The SNP may seek liberty for Scotland. It should also, I'd suggest, have a care for the liberty of its citizens, even its sectarian troglodytes.

16 May 2011

Bloggus interruptus...


"And lo, the contagion spread across the land (though the hardy worpressers, the plague diminished not, nor troubled). Each by each, blogs were laid low. Paralysis, the affliction brought on, paralysis then attenuation. Comments and posts, all likewise were devoured by its ravening hunger. Great was their lamentation, sorrow their blogfellow. Those who were spared its wroth praised unknown powers for their final deliverance."

The Less-Venerable Bede, from his account of the Great Blogger Plague of 2011...

Last week's vexing blogger outage coincided with a certain creative listlessness on my part.  The Peat Worrier's ink is frozen, his mental fibres knotted under his bargain-basement goathair peruke - and his quill held immobile in a sclerotic fin. He has even lapsed into the third person. It is frankly, concerning.  After an election result that exploded through Scotland's synapses, leaving little birds singing and stars blinding Nationalist opinion and leaving the blinking Unionist parties staggering - there is plenty that is worth saying. Enjoying a post-election pint with a defeated Labour activist, he noted that broad good cheer despite, I appeared to be approaching the idea of an SNP majority in Holyrood with a discernible sense of trepidation.

The young man in question was, I think, highly perceptive. Triumph has a terrible edginess, bearing its promise and its risks, particularly for folk who feel thirled to the dominating political outfit in question. Philosophy might have told us that responsibility is often as not a predicament as it is a pleasure, but abstract lessons are not always so easily learned, I find.  I am reasonably reconciled to my ideosyncratic tendencies, but suspect I'm not alone in the broadly pro-SNP camp, who feels the sense of promising danger about the election result.  The phrase is infelicitous, but I'm struggling more clearly to articulate my dominant sensation. Fear not. I haven't been imbibing the dregs of Labour election literature, nor am I in any respect trying to imply that Alex Salmond's re-election is in any respect a "danger" to any cove, covess or covelet. The idea of a hazard perhaps captures the sensation best, with its mixter-maxter combination of opportunity and danger - an apt formulation for the Maximum Eck himself, you might think, who notoriously scrutinises the world with the calculating gambler's eye. For those who know it, the dappled bothness of Gerard Manley Hopkins' poetry captures in broad strokes the notion I'm fumbling for.

Having argued that the SNP (and other nationalists) ought to be the cartographers of a new Scotland - finally the party has made landfall, with a hearty, hardy crew of lively mates.  The jaunty craft has weathered the storm of the election not only undamaged, but finds its crew significantly reinforced. With unexpected electoral gains, and unanticipated tribunes taking office, you generally have to brace yourself for entering unhappily into the losing poker-faced game of I'll see your numpty and raise you a numpty. Certainly, there are signs that Labour may not have its numpties to seek. One peaty source described one of their newly elected list MSPs as "a turnip". Having reviewed the credentials of the Nationalist cadets, however, I'm thoroughly encouraged. Certainly, there will be patches of questionable articulacy, but there is much in the biographies of the SNP's new recruits to be buoyed by.

The collegial rubbing of rinds may be encouraging - but these new and eager parliamentary auxiliaries hop off the good ship SNP in an intellectually-challenging tight-spot.  A jungle of independence detail no longer ominously haunts our horizons; it erupts at our very feet, trimmed of its existentially reassuring distance. It is not surprising - indeed it is entirely proper - that dissent about which star the political movement ought to navigate by finds a voice. Such disagreement is considerable - and is potentially productive. While the press is desperate to discipline disagreement, implying that any deviance from the Cap'n's canon represents disaster - this is a contemptible prospectus for thinking men and women and perhaps worse - is laughably bereft of intellectual humility. As the Burd suggests, when unpicking knotty questions, we want little of the tyranny of the captain, and much more of the credible self-reflection that is able to concede the obvious point, that life is difficult, problematic and untidy.

I'm not sure if our public sphere is quite prepared for such a bracingly honest approach, but if we allow ourselves to be tethered by the impatient and unworthy thesis that disagreement, complexity and nuance is a problem, we're fucked.

11 May 2011

"... to be faithful and bear true allegiance..."

From 9.30 this morning, Scotland's newly elected MSPs have been trumping down the aisles of Holyrood's chamber, raising their paws to heaven, and muttering ritual saws about their submission to the British Crown. The godless may affirm, the pious can swear. Each receives a flourish of applause having completed their oath-taking. No doubt much of the entertainment of proceedings is winkling out those with embarrassing middle names. For participants, it is assuredly an moving moment as they process down the aisles.  The greenhorns may feel a tingle of trepidation. All in all, it has the character of an emotionally-laden formality, quotidian in its detail but weighty in its implications. Over at Bella Caledonia before the polls opened, they were talking about liminality; the between-state, at the threshold. Those at all familiar with anthropological theories of ritual, in particular Arnold Van Gennep's Rites of Passage, are likely to recall them as you watch eager-faced MSPs-elect being confirmed in their roles today. 

Yet it strikes me there is another interesting aspect to Holyrood's oath-taking ceremonies. More recent anthropological research has questioned the idea that rituals should be analysed in terms of their social function, moving from studying ritual to ritualisation, emphasising rituals' mixter-maxter combination of different elements and the blending and adulteration of traditional forms. For example, many contemporary weddings incorporate a good deal of "traditional" Christian elements - from their setting, to hymns, to officiating clergy. It is highly problematic, however, to "read off" the piety of those participating from their enthusiastic singing of "Immortal, Invisible God only Wise".  Such rituals are governed by curious ideas of propriety and tradition, muddle and compromise amongst participants - "A registry office? That's not a real wedding!" - whose relationship to the outward content of the ceremonial may be highly problematic, contradictory - but certainly complex.

It was in that context that I lend a lobe to Holyrood's opening enrolling ceremony. One aspect of this proceeding which particularly interests me is how it has been transformed by our tribunes beyond a stuffy and superfluous oath of fidelity to the Hanovarian line in the eyes of God. While such ceremonials have long gone on in Westminster, it is fascinating to see how Holyrood has carved out its own ritual conventions and subtly or less subtly adjusted the significance of this oath-swearing process. It is, I'd suggest, an interesting but paradoxical example of how:

“ritual symbolism can provide a source of creativity and improvisation, a counter-cultural and anti-structural force, engendering new social, cultural and political forms.” (Lukes 1975, 302).

The Scotland Act 1998 provides that after any general election the Scottish Parliament must by law complete a ritual in order formally and fully to convene (§84). Each elected member must take an oath or solemnly affirm to:

“be faithful and bear true allegiance to her majesty Queen Elizabeth, her heirs and successors according to law.”

Each member in turn proceeds to the well of the chamber, observed by their fellows who clap when the oath or affirmation is completed. Those oath taking members “swear” to be faithful, “so help me God” – and are invited to raise their right hand as they repeat the statutory formulation. By contrast, affirming members “solemnly, sincerely and truly declare and affirm”, with the reference to ‘God’ being excised (Oaths Act 1888) and without being invited to raise their hand heavenward. However, several affirming members spontaneously do so. There have been three instances of the full parliament undertaking this ritual since its foundation (unsurprisingly, following symmetrically in the wake of the three elections of 1999, 2003 and 2007), each time with various members adding personal reflections of their discontent with the terms of the oath. For example, the Maximum Eck added before his oath in 2007 that:

"The Scottish National Party's primary loyalty is with the people of Scotland, in line with the Scottish constitutional tradition of the sovereignty of the people." (Scottish Parliament Official Report 9 May 2007, Col 1)

Those harbouring republican sentiments, opposed to monarchical institutions and styles frequently note that their affirmation is made “under duress” (Frances Curran, SSP) or with some theoretical and political qualification emphasising the superficiality of their submission. (There were 23 such qualifications in the Scottish Parliament Official Report 7 May 2003). In 2007, Elaine Smith (Labour) elaborated, saying:

“Before taking the oath, I state that I believe that the people of Scotland should be citizens, not subjects, and hold firmly that my allegiance should be first and foremost to them. However, I recognise that to serve my constituents in the Parliament I must meet the legal requirement of taking the oath and will, therefore, do so” (Scottish Parliament Official Report 9 May 2007, Col 6).

In addition to these examples of avowed, fingers-crossed protesting participation in the ritual, and even the repudiation of the logic of the royal vow - the oath of allegiance has prompted a number of members to incorporate explicit symbols of resistance into their performance. For example, in 2003 Scottish Socialist member Colin Fox attempted to sing Robert Burns’ “A Man’s a Man For A’ That” only to be interrupted by the Presiding Officer of the day, advised that “I am sorry, but there is no singing in Parliament” (George Reid) and he would “have to wait until the end of the queue”. (Scottish Parliament Official Report 1 May 2003, Col 3). Alternatively, and less tunefully, other members have presented a raised, clenched fist in place of an open palm (Tommy Sheridan 2003) and the phrase “my oath is to the people” written across the palm (Rosie Kane 2003).

Less contentiously, but perhaps more curiously, members have elaborated – and arguably, elevated - the significance of the brief ceremonial further by choosing to repeat their English language oaths in Gaelic, Doric, Scots - transforming taking a queer and antiquated oath into a multicultural and multilingual expression of Scottish diversity. The SNP's now deceased Bashir Ahmad was the first MSP to take this oath in Urdu. According to the Scotsman, today the oath will be repeated in six languages, including in Italian by Edinburgh Central's new MSP, Marco Biagi. The paper recognises that "today's ceremony is no stranger to expressions of identity" but doesn't reflect on the curiosity that the efficacy of these identity-fostering performances bear no substantial relation to the words actually being said. Gil Paterson is quoted, saying: 

"We have a wide range of cultures, roots and linguistic ties in this 69-strong group of SNP MSPs and as our MSPs take their seats they are highlighting just some of the different cultures the SNP represents across Scotland."

Indeed, as others have noted, this improvisation and the significance of using different languages is actually despite the words of the oath, which I'd suggest will have limited poignancy for the vast majority of parliamentarians. They may feel a catch in their throat, MSPs may be moved, but the feeling of the ceremony is unlikely to be attributable to the dread weight of their oaths to be thirled to a lawful line of succession in the searching eyes of God. Like the lungful singers in a church wedding ceremonial we imagined earlier, we would entirely misunderstand the social significance of the ritual if we simply stayed at the surface level of the official prose. A little questing into the phenomenon reveals a ceremony of formality and feeling; of form and re-interpretation; compliance and play; of submission and resistance. A curious little anthropological drama of contemporary Scotland.

10 May 2011

How the SNP "broke" AMS...

Since Thursday's results in the 2011 Holyrood election, there has been much talk about the electoral system and how the SNP "broke" the additional member system, foiling its attempts to secure some measure of proportionality between votes cast and parliamentarians elected. Nationally, the SNP attracted 45.4% of constituency ballots cast and 44% of regional votes, but managed to secure 69 out of 129 Holyrood seats: over 53% of them. Taking the level of support at its highest, a bluntly proportional distribution of seats would have seen 58 SNP MSP elected. Yet AMS afforded the Nationalists some 11 more. As a kindly intercessor recently reminded me, in a leaner Holyrood of 73 MSPs, limited to its first-past-the-post constituencies, on last Thursday's vote the Nationalists would hold 53 seats or just over 72% of the whole chamber.

There are a number of threads to this - a raft of constituency wins implicated above all. However, I thought it might be instructive to provide a worked example of how the "top up" of additional members from a regional list signally failed to secure proportional representation. Handily, the North East of Scotland region furnishes a stunner. 

To the Northeast! It is not, I admit, territory I'm terribly familiar with and have only jaunted up that way once in my short life. Ten constituencies make up the full region, running across Dundee, Angus, Aberdeen and Aberdeenshire to the Buchan coast. Post 2007 boundary changes added a constituency and rejigged the edges of others. This is Nationalist territory par excellence, the SNP holding eight constituencies on the night and making off with two others, defeating Mike Rumbles and snapping up the seat Nicol Stephen relinquished for the red benches of the Lords. Labour's Lewis MacDonald similarly failed to regain Aberdeen Central, notionally an SNP seat after boundary changes. In total, therefore, the SNP took all of the North East's ten seats. But soft! On what percentage of the vote? The results are pretty astonishing. Joe FitzPatrick secured 57.6% in Dundee City West, Shona Robison polled at 64.2% in Dundee City East while Stewart Stevenson  secured 67.2% of votes cast in the Banffshire and the Buchan Coast constituency. Undoubtedly impressive, but nevertheless, even where the winning Nationalist candidate was supported by a crashing majority of those voting, just under a third of voters supported somebody else.

One rationale for the regional vote is to afford these disappointed electors some compensation, "topping up" first past the post results in the constituencies and securing a measure of proportionality in the final parliament. Yet on Thursday night, despite totally dominating the north eastern constituencies and securing ten MSPs, the Nationalists also managed to acquire another on the regional list. How did it happen? Remember your d'Hondt calculations. You have seven North Eastern regional seats to distribute. In the first instance, you work out your dividers.  These are calculated by taking the number of MSPs a party has already seen elected - and then adding 1 to this total. In the North East in 2011, this meant that the SNP started the regional list allocation with a divider of 11 (their 10 constituency MSPs +1) while every other party's total regional votes were divided only by 1. This also explains why the regional list results are only declared once all constituencies in the region have been allocated.

North East of Scotland
Total votes cast
SNP: 140,749 
Labour: 43,893
Tory: 37,681
Liberal: 18,178
Green: 10,407

The SNP took 52.7% of the North Eastern list vote, while their nearest rivals, Labour, polled only 16.4%.

Round 1
SNP: 140,749/11 = 12,795.4
Labour: 43,893/1 = 43,893
Tory: 37,681/1 = 37,681
Liberal: 18,178/1 = 18,178
Green: 10,407/1 = 10,407

Labour MSP elected

Round 2
SNP: 140,749/11 = 12,795.4
Labour: 43,893/2 = 21,946.5
Tory: 37,681/1 = 37,681
Liberal: 18,178/1 = 18,178
Green: 10,407/1 = 10,407

Tory MSP elected

Round 3
SNP: 140,749/11 = 12,795.4
Labour: 43,893/2 = 21,946.5
Tory: 37,681/2 = 18,840.5
Liberal: 18,178/1 = 18,178
Green: 10,407/1 = 10,407

Labour MSP elected

Round 4

SNP: 140,749/11 = 12,795.4
Labour: 43,893/3 = 14,631
Tory: 37,681/2 = 18,840.5
Liberal: 18,178/1 = 18,178
Green: 10,407/1 = 10,407

Tory MSP elected

Round 5

SNP: 140,749/11 = 12,795.4
Labour: 43,893/3 = 14,631
Tory: 37,681/3 = 12,560.33
Liberal: 18,178/1 = 18,178
Green: 10,407/1 = 10,407

Liberal MSP elected

Round 6

SNP: 140,749/11 = 12,795.4
Labour: 43,893/3 = 14,631
Tory: 37,681/3 = 12,560.33
Liberal: 18,178/2 = 9,089
Green: 10,407/1 = 10,407

Labour MSP elected

Round 7
SNP: 140,749/11 = 12,795.4
Labour: 43,893/4 = 10,973.25
Tory: 37,681/3 = 12,560.33
Liberal: 18,178/2 = 9,089
Green: 10,407/1 = 10,407

SNP MSP elected

In fairness, therefore, the Nationalists' regional gain was in the seventh round in a seven-seater region, but such was the bigness of the SNP's regional vote - and the comparative smallness of their competitors' share - that even the whacking great divider of 11 couldn't trim back the SNP lead far enough to give the Greens the opportunity of a north eastern seat.

There are other lessons elsewhere. Being a Nationalist in Glasgow has not always been a particularly satisfying experience. Well-used to massive Labour dominance in the constituencies, since 1999 the regional list system (insofar as it was able to do so) performed its intended function, affording SNP-minded Glaswegians the chance to return sympathetic members of parliament. Before the election, a number of folk pondered the possibility of tactical voting on the list, suggesting that Glasgow Labour voters could comfortably engage in second vote manoeuvres. We thoroughly misplaced our prescience on that one. Our misplaced confidence was premised on the assumption that the (almost) clean sweep for Labour we've been used to would continue, ad nauseum, ad infinitum, pereat mundus. If, as happened, the constituencies are wrestled from Labour control, Labour tactical voting on the list becomes an awfully risky endeavour for the Labour supporter. Similarly, I dare say there were SNP folk on the list whose hopes were high of being returned - but who were disappointed by their colleagues' triumphs in the constituency ballot.

Perhaps the most melancholy figure of the night was Shirley-Anne Somerville. The former Edinburgh list MSP was defeated by Labour's Malcolm Chisholm in Edinburgh North and Leith, but her fellow candidates' victories in the rest of Edinburgh ratcheted up the d'Hondt divider on the region to nine in the first round, reducing their 110,953 regional votes to only 12,328, well behind the Liberal Democrats on 15,588, who nonetheless also failed to secure a seat on the Lothian list. As a result, Somerville was defeated while everywhere else, her party was winning. No doubt a decidedly depressing existential pinch to be in, that.  Since we're talking about regional list allocations, and further to my earlier post on the results from my own constituency of Glasgow Southside, it is worth following the list allocation through its various rounds - if only to enjoy a proper understanding of just how far George Galloway fell short of his (nonchalantly) coveted new seat...

Glasgow region 

Total votes cast
SNP: 83,109 (39.8%)
Labour: 73,031 (35%)
Tory: 12,749 (6.1%)
Green: 12,454 (6.0%)
George Galloway: 6,972 (3.3%)
Liberal Democrat: 5,312 (2.5%)

Round 1
SNP: 83,109/6 = 13,851.5
Labour: 73,031/5 =14,606.2
Tory: 12,749/1 =  12,749
Green: 12,454/1 = 12,454
George Galloway: 6,972/1 = 6,972
Liberal Democrat: 5,312/1 = 5,312 

Labour MSP elected

Round 2
SNP: 83,109/6 = 13,851.5
Labour: 73,031/6 =12.171.8
Tory: 12,749/1 =  12,749
Green: 12,454/1 = 12,454
George Galloway: 6,972/1 = 6,972
Liberal Democrat: 5,312/1 = 5,312

SNP MSP elected

Round 3
SNP: 83,109/7 = 11,872.7
Labour: 73,031/6 =12.171.8
Tory: 12,749/1=  12,749
Green: 12,454/1 = 12,454
George Galloway: 6,972/1 = 6,972
Liberal Democrat: 5,312/1 = 5,312

Tory MSP elected

Round 4
SNP: 83,109/7 = 11,872.7
Labour: 73,031/6 =12.171.8
Tory: 12,749/2=  6,375.5
Green: 12,454/1 = 12,454
George Galloway: 6,972/1 = 6,972
Liberal Democrat: 5,312/1 = 5,312

Green MSP elected

Round 5
SNP: 83,109/7 = 11,872.7
Labour: 73,031/6 =12.171.8
Tory: 12,749/2=  6,375.5
Green: 12,454/2 = 6,227
George Galloway: 6,972/1 = 6,972
Liberal Democrat: 5,312/1 = 5,312

Labour MSP elected

Round 6
SNP: 83,109/7 = 11,872.7
Labour: 73,031/7 =10,433
Tory: 12,749/2=  6,375.5
Green: 12,454/2 = 6,227
George Galloway: 6,972/1 = 6,972
Liberal Democrat: 5,312/1 = 5,312 

SNP MSP elected

Round 7 
SNP: 83,109/8 = 10,388.6
Labour: 73,031/7 =10,433
Tory: 12,749/2=  6,375.5
Green: 12,454/2 = 6,227
George Galloway: 6,972/1 = 6,972
Liberal Democrat: 5,312/1 = 5,312

Labour MSP elected

Glasgow Totals:  7 SNP MSPs (5 constituency, 2 list); 7 Labour MSPs (4 constituency, 3 list), 1 Tory (list), 1 Green (list).

As you'll notice, the Liberals had a snowball's chance in hell of retaining their Glasgow seat of 2007. If the region had more than seven MSPs to allocate, the 8th seat would have gone to the Nationalists, the 9th to Labour - and only on the 10th would George Galloway been elected. I wondered what would have happened if Bill Kidd had not defeated Labour's Bill Butler by seven votes in Glasgow Anniesland, but a quick calculation demonstrates that the loss would have been supplemented with a third nationalist list member, won at the expense of the Labour Party. If nothing else, the results in the North East and in Glasgow should remind us to be awfully cautious about our assumptions.