30 June 2011

BBC Radio 4: Law in action (Scotland)...

Just a wee post to draw your attention to this edition of BBC Radio 4's, Law in Action. In this week's edition, first broadcast on the 28th of June, a half hour is spent discussing Scotland's distinctive legal system. Presented by the English legal journalist Joshua Rozenberg (and, as I lately discovered, spouse to Melanie Phillips), the programme ranges widely across various topics of recent legal interest for Scots, including the UK Supreme Court ruling in Her Majesty's Advocate v. Cadder, the outstanding insurers' appeal against Holyrood's Act pleural plaques before the same Court - and our procedural idiosyncrasies, including the not proven verdict, majority jury verdicts, and the requirement for corroboration. Rozenberg talks to a number of weel-kent Scots legal figures, including the University of Edinburgh's Professor Hector MacQueen, the fantooshly-face-furnitured Donald Findlay QC and Lord Carloway, who is presently reviewing Scots Law in the light of Cadder. The Scottish Government have given Carloway the following Terms of Reference:

(a) To review the law and practice of questioning suspects in a criminal investigation in Scotland in light of recent decisions by the UK Supreme Court and the European Court of Human Rights, and with reference to law and practice in other jurisdictions;

(b) To consider the implications of the recent decisions, in particular the legal advice prior to and during police questioning, and other developments in the operation of detention of suspects since it was introduced in Scotland in 1980 on the effective investigation and prosecution of crime.

(c) To consider the criminal law of evidence, insofar as there are implications arising from (b) above, in particular the requirement for corroboration and the suspect's right to silence;

(d) To consider the extent to which issues raised during the passage of the Criminal Procedures (Legal Assistance, Detention and Appeals)(Scotland Act) 2010 may need further consideration, and the extent to which the provisions of the Act may need amendment or replacement; and

(e) To make recommendations for further changes to the law and to identify where further guidance is needed, recognising the rights of the suspect, the rights of victims and witnesses and the wider interests of justice while maintaining an efficient and effective system for the investigation and prosecution of crime.

Carloway's review continues. Rozenberg also discusses an issue exercising Holyrood this morning - and which appeared on this blog earlier this week - the role of the UK Supreme Court in Scottish criminal appeals. The programme doesn't go into any depth on any of these topics - its pace is breakneck and its analysis air-light - but it is always pleasing, even in a brisk half-hour BBC programme, to see Scotland's distinctive legal system recognised and discussed.

28 June 2011

On the UK Supreme Court's "striking anomaly"

After the consuming ballyhoo about the jurisdiction of the UK Supreme Court in Scottish criminal cases, you may recall that Alex Salmond appointed a small body of hoary legal gentlemen to a Review Group. Their given terms of reference are as follows...

"To consider and assess the mechanisms created under the Scotland Act 1998 and the Human Rights Act 1998, and developed since then, for applying Human Rights law to criminal cases in Scotland, including particularly the regulation, subject matter and scope of appeals from the High Court of Justiciary to the Supreme Court of the United Kingdom; To consider the criticisms of and various suggested amendments to those mechanisms in light of current assessments, including criticisms, of their operation; and to advise on the ways in which they might best be altered, if appropriate, by legislation or otherwise, to ensure Scotland's unique system of Criminal Law and Procedure is fully protected, within the context of the accepted need for that system to comply with the Human Rights Act."

The panel includes four souls. In the chair, is former Court of Session judge and Labour cross-bench peer in the House of Lords, Lord McCluskey. Alongside him, Salmond selected Sir Gerald Gordon - an eminent writer on criminal law of long experience and Sheriff Charles Stoddart. Finally, the Review also includes the Edinburgh's Professor Neil Walker, who occupies the University's marvellously named Regius Chair of Public Law and the Law of Nature and Nations, formerly held by the SNP's own Professor Neil MacCormick. Walker also completed a report for the Scottish Government in the last session of Holyrood, reviewing the broader issue of Final Appellate Jurisdiction in the Scottish Legal System, including but not limited to the issues presently being discussed by the Review Group.

Although not the final fruits of their deliberations, the Group have published their first report on the issue. Interestingly, this report is written in a very direct style, which deliberately aims to abstain from bamboozling the lay reader with legal obscurity.  This material is relegated to a rather chubbier Appendix and supplementary text. This directness will no doubt be appreciated by such wider audience as this document receives. For my part, I was pleased to see a clear recognition of the respective constitutional politics which are engaged by controversies about the UK Supreme Court's jurisdiction. In a passage headed Realities to be taken into account, the Group note:

34. For those who do not wish to be part of the UK State, arguments about the retention of the Supreme Court as a matter of constitutional integrity will carry no weight.

35. Nevertheless while Scotland remains in the United Kingdom it is clear, in our judgment, that, whatever alterations are proposed in amendments to the current Scotland Bill as we note below, the prevailing constitutional position makes it unrealistic to suggest that the Supreme Court should not have a continued jurisdiction to determine what might conveniently be called demarcation questions. In this context, these are questions concerning whether or not acts, legislative or executive, of statutory bodies or ministers whose functions are defined and limited by the Scotland Act 1988 [sic], including acts in the domain of criminal law and justice, are within the powers conferred on these entities by that legislation.

For those who suspected that Salmond had dragooned a phalanx of Nationalist party men into composing this independent review - to see off the Advocate General's earlier Expert Group which reviewed the same topic - the practical Unionism of this report will disappoint expectations. Reading Professor Walker's earlier report should also have dispelled such lingering impressions, as should McCluskey's partisan allegiances, despite his judicial career. In a leader column, the Scotsman suggests that "McCluskey throws Salmond a legal bone of contention", but argue that...

"While [the Report] leans strongly to the First Minister's critique of the place of the Supreme Court in Scots law, in recognising the role of that court in human rights matters, it denies him outright victory. He will enjoy gnawing at the meat, but may choke on the bone."

Throughout, the Group warmly emphasises points of agreement with Jim Wallace's group, whose findings I have discussed before, in the context of an earlier Supreme Court stooshie, which blew up around its Cadder judgment.  At that time, I was intensely critical of Fiona Hyslop's contribution on Newsnicht, which conflated description and prescription, is and ought. What is realistic, ask the four wise men? Their answer, at para [40]...

"All that we can see as falling within our terms of reference and the constitutional realities of the situation is a reconsideration of the manner in which jurisdiction of the Supreme Court should be exercised. The purpose would be to ensure that, while the Supreme Court would continue to make final and binding rulings on human rights issues, including those arising in criminal cases from Scotland, it would do so in a way that reflected more clearly the long history of separate development of the Scottish criminal justice system and the closely associated tradition of the High Court of Justiciary as the final court for determining criminal justice in Scotland."

However, the second half of their remarks homes in on the issue of leave to appeal - and the relationship between the High Court of Justiciary and the UK Supreme Court. It is on these terms that they propose an amendment to the Scotland Bill. Styling the Supreme Court's jurisdiction at present as a "striking anomaly". They write...

The position elsewhere in the UK

49. In the rest of the UK, leave to appeal to the Supreme Court, including special leave, cannot be granted unless the court from which the appeal lies grants a certificate that a point of law of “general public importance” is involved in the decision, and that court considers that the point is one that ought to be considered by the Supreme Court.

50. If the court from which the appeal lies refuses leave but grants the necessary certificate, then – and then only – can the Supreme Court entertain an application to grant special leave, and grant it if so minded. The clear result of this is that alleged violations of Convention human rights by public prosecutors the UK can be brought to the courts under the process for assessing whether to certify a point of law general public importance of  the Human Rights Act and its ancillary procedures but the cases in which such alleged violations are dealt with cannot go to the Supreme Court unless the court below issues the necessary certificate.

Comparison with the system for Scotland

51. The conclusion referred to in paragraph 46 yields obvious, closely related questions:
• Why should the High Court of Justiciary not be placed under the same regime as elsewhere, whereby, there can be no right of appeal to the Supreme Court except in circumstances where, having considered the case in detail, the High Court of Justiciary grants a certificate that the case raises a point of law of general public importance?
• Why therefore should the Supreme Court have a wider jurisdiction to hear appeals in Scottish criminal cases than it has in respect of criminal cases from the rest of the UK?
• Why, in further consequence, should the actions of Scotland’s public prosecutor that are alleged to threaten a violation of statutory human rights be dealt with differently from those of public prosecutors elsewhere in the UK?

A striking anomaly

52.  In our view it is anomalous that the High Court of Justiciary, which for so long has been recognised as the “apex court” in criminal cases originating in Scotland, should find that, as a result of a devolution statute, it has been placed under a broader and, in the light of developing practice since 1998, a more intrusive jurisdiction than has been created for the rest of the UK in relation to applying the law governing human rights issues in criminal cases.

On the basis of this reasoning, the Group suggest an amendment to the Scotland Bill, meaning that the UK Supreme Court could only grant extraordinary leave to appeal, where the appellant had already convinced the High Court of Justiciary to issue a certificate that a point of law raised in the case is of “general public importance”, even as they deny the appellant leave to appeal.  It remains to be seen what the Tory-lead Westminster Government might do with these proposals and whether further amendments might be made to the Scotland Bill to accommodate them, before its final reading in Westminster.

For my part, I have not independently investigated the legal issues discussed by McCluskey et al in any depth - but given the authors' collective expertise, I'd be most surprised if they had misconstrued the legal situation.  It should be uncontroversial to suggest that the scope of appeal rights is not, generally speaking, something politically to exercise the public or parliament.  One immediate question suggested by these proposals is - would their operation have made any difference in the cases which provoked particular controversy, Cadder and Fraser? That would depend, of course, on how the High Court of Justiciary interpreted the idea of “general public importance”, and in turn, if they granted such a certificate to Cadder or Fraser, allowing the UK Supreme Court to exercise its jurisdiction over their cases.  At least in the case of Cadder, it is profoundly difficult to image Justiciary refusing to grant such a certificate, which would have prevented the UK Supreme Court from hearing the case.

I also wanted to say a word or two about the "realities" mentioned by the Group, and their explicit recognition that a Nationalist politics - and implicitly, a Unionist politics - is very much implicated in this controversy.  This shouldn't be troubling. An independent Scotland would have no use and no need for the UK Court's jurisdiction. Those aiming at an independent Scotland are being perfectly consistent, in rejecting it, while Scotland continues to be part of the Union. This is a political position. Symmetrically, if one is a committed Unionist, that too is involved in assessing what jurisdiction, if any, the Supreme Court might exercise. Although Unionists find it easier to disavow the political contents of their proposals, neither Nationalists nor Unionists are offering us a "common sense", value-free, a-political analysis, nor could they do so. The politics of the future of the UK is immediately and unavoidably involved in devising any schemes and solutions, which concern ideas of "constitutional integrity", as the Review Group explicitly recognise in paragraph [34]. 

It is a pure nonsense to argue that Salmond is in any respect "wrong", when he argued that the UK Supreme Court should have no jurisdiction over Scots criminal cases.  To think along these lines is to treat jurisdictional questions as if they were questions of fact, and not the domain of politics proper and naked judgments of value. That the Advocate General's expert group supported the continuing jurisdiction of the UK Supreme Court - and that Salmond's own body shared that sentiment - reflects their values, or in the latter case, their judgements about expediency in a given constitutional situation which they anticipate will continue. Their conclusions are no more the necessary conclusions of deductive reason than your views, or mine. I am not a fan of this sort of expertise politics, where knotty normative questions are transformed into dull dog facts, about which socially powerful and select personages then "inform" the credulous public, handing down their decisions. To be crystal clear, I am resolutely not opposed to deliberation and analysis. Over the years, a number of such reports have done vital work of clarification and critique. However, it is all too tempting all too often to shunt political issues within a framework of expertise, transforming mere opinion into the socially more mighty stuff of professional knowledge, based on independent learning and unencumbered by any outward, suspect signs of political affiliation. The Review Group and the Advocate General's parallel body may not have been party political, and their independence of mind is not to be impugned - but the sorts of answers such groups produce are powerfully mediated by often undisclosed political assumptions, which a significant segment of the public may not share.


The Review Group's full (and relatively short) First Report can be read here; the appendix and more technical supplementary materials here.

27 June 2011

"An alien & an interloper & despised of his fellow-men..."

I assume the book belonged to my late great grandfather. Several years ago, it caught my eye on the shelf at home on account of its lurid title: The Wild Irishman, published in London in 1905. Its author - one T W H Crosland (left) - is styled on the inside cover "the author of The Unspeakable Scot". Quite why this particular eccentric jeremiad was ever purchased by my relative, I have no idea, but it proved an entertaining accidental diversion. Intrigued by the gratuitously insulting chapter headings, I read on, and was soon chortling at the Crosland's outrageous, ornate, over-ripe - and at times, basically racist, prose.  The author reserves his particular bile for the Scotch, a fondness that finds expression in his chapter in The Wild Irishman on "Dirt", which commences...

"I suppose that next to the Scotch, the Irish are out and out the dirtiest people on the earth. But whereas Scotch dirt is a crude and gross affair, Irish dirt has still a pathetic and almost tender grace about it."

Blogging has been quiet on the peaty front, on account of an extended sojourn down to London to see some cronies. As I wandered through those chartered streets, I was soon reminded of Crosland's comparative analysis of both the Irish and the Scotch in London. Crosland particularly despised the swarm of Fleet Street Scottish hacks - a point much enlarged upon on his earlier work The Unspeakable Scot (1902).  Not a fan of the“stern, calculating Scotch peasant has during late years dedicated his son to the practice and service of journalism”, Crosland was at least willing to concede that:

“He [the Scotsman] possesses too certain solid qualities which are undoubtedly desirable in a journalist. For example, he is punctual, cautious, dogged, unoriginal and a born galley-slave.”

 A whole chapter of his 1905 book is committed to "the London Irish". He contends...

"... the London Irish do not shine effulgently. None of them is at the top of things, as it were; none of them has got very far above the middling. The reason no doubt is that the Irish temperament is coy. The Scotchman who comes to London knows that he is an alien and an interloper, and despised of his fellow-men, but he blusters it out. The Irishman, on the other hand, feels his position keenly and refuses to be other than diffident."

Crosland was very keen on provocative epigrams, and both books are full of riling and insulting  jabs at both the Irish and the Scots. Several are eminently quotable, but I'll limit myself to a couple more, from The Unspeakable Scot. Given their relative antiquity, both books are now freely available online, for kindlers and freebie-seekers, seeking comic racist tracts to alleviate the boredom of the commute. Firstly, a classic bit of Crosland, laying into cherished Scotch pieties...

“Your proper child of Caledonia believes in his bones that he is the salt of the earth. Prompted by a glozing pride, not to say by a black and consuming avarice, he has proclaimed his saltiness from the house-tops in and out of season, unblushingly, assiduously, and with results which have no doubt been most satisfactory from his own point of view. There is nothing creditable to the race of men, from filial piety to a pretty taste in claret, which he has not sedulously advertised as a virtue peculiar to himself.”

And secondly, on the Scots tradition of education Alex Salmond is so keen on espousing. I dare say Crosland would not have been an admirer of our First Minister...

“All the same, I concede that the Scotch really do love learning. I gather, too, from unbiased sources that they starve their mothers and make gin-mules of their fathers to get it. And when it is gotten, when a monstrous and unlovely possession it usually turns out to be. For your Scotchman always takes knowledge for wisdom. His learning consists wholly of “facts and figures”, all grouped methodologically round that heaven-send date A. D. 1314, and if you cannot tell him off-hand the salary of the Archbishop of Canterbury, the population of Otaheite and the names of the fixed stars, he votes you a damned ignorant Southron, and goes about telling his friends that he shouldn’t wonder if you never went to 'the schule'.”

24 June 2011

Those Scottish Election Study headlines...

My thanks to the helpful Dr Christopher Carman for alerting me to the fact that some initial slides from the Scottish Election Study of 2011 have now been published.  Many of you will have seen the edition of BBC Newsnicht this week, which enjoyed an early sight of the Study's preliminary findings about May's Holyrood election. The research team of political scientists, based at the University of Strathclyde, describe their methodology thus:

"In 2011, the Scottish Election Study took the form of a two-wave internet panel survey, with data collection undertaken by YouGov. The aim of the study is to explain the decisions of Scottish voters on 5 May, both whether and for which party they voted. As well as voting behaviour, the survey questionnaires cover the following topics: attitudes to parties and leaders; issue opinions and evaluations; national identity; constitutional preferences; multilevel party identification; preferences for political compromise; socio-demographic characteristics. In addition to the pre/post-election panel, the 2011 SES also reinterviewed respondents to the 2007 Scottish Election Study."

Data collection took place in two waves, one before and one after election day. The first engaged with 2,046 respondents, with fieldwork being conducted in late April. The second wave occurred later in May, with 1,760 respondents. While analysis of the data is still ongoing, the research team have now made three sets of slides available online, laying out preliminary findings.

The first, from Dr Carman's presentation from a seminar at the University of Strathclyde held this week, looks at issues of turnout; the use of two ballot papers for constituency and regional votes in Holyrood 2011, and its comprehensibility; the abortive AV referendum and respondents understanding of the AV system - and finally, on the phenomenon of "multi-level party support" in Holyrood and Westminster, or to borrow a phrase from John McTernan, Scotland's "promiscuous", Bobbing John electorate.

Secondly, we have the University of Essex's Dr Rob Johns, who asks Why does ‘performance politics’ win Scottish elections? Johns submits that there are four key aspects of context: 1. The Scottish Parliament matters; 2. Class and party dealignment; 3. Ideological convergence and 4. Reshaping of the constitutional issue. The first limb focusses on how respondents envisage key policy areas, including law and order, health - and so on. Do they conceive of outcomes in these policy areas as being primarily due to the UK or the Scottish Government? Secondly, Johns looks at responses to the question “Do you usually think of yourself as being a supporter of one particular party?” While 44% of respondents said ‘no’, the study revealed that many said ‘yes’ then abstained or defected in the most recent Holyrood election. The third limb examines perceptions of "ideological convergence" between political parties. The fourth plucks out the issue of the constitution.“How do you think the return of an SNP minority government would affect the likelihood of independence?”, asked the research team. According to 1,784 respondents to the Study the return of an SNP minority administration would make independence...

  • Much more likely ~ 7% 
  • Bit more likely ~ 29%
  • No difference ~ 42% 
  • Bit less likely ~ 13% 
  • Much less likely ~ 9%
Johns then turns to look at credit and blame, party image - capable of strong government, united, in touch with ordinary people, keeps promises - followed by a comparative analysis of leader-party popularities. All interesting and very much worth a look.

Lastly, at least for now, we have Professor James Mitchell's slides, which deal with a couple of issues of particular interest to me - support for party by gender, and by social grading. In the interests of comparative brevity, I'll tease out the Study's findings on these two issues - and simply note the other findings, without much getting into them.  Those of you who stayed with me during the Holyrood campaign may remember my series of posts, looking at the disaggregated data in YouGov's pre-election polling, focussing throughout on gender and class. One striking feature of this series of polls was the thumping leads the SNP were recording amongst C2DE voters - those assessed to be working class based on the occupational criteria. The polls also tended to show a narrowing "gender gap" in the SNP support, with increasing percentages of women, minded to support the Nationalists. My interest in that subject goes back some time, with my first dedicated post on the topic dating from August 2010, filling out some of the context informing a column by former Salmond special advisor Jennifer Dempsie in the Scotland on Sunday, arguing that "winning over female voters" was "crucial to SNP ambitions". Unfortunately, the wider media didn't really pick up on these interesting trends in the course of the campaign.  If they had done so, the Study's conclusions would be much less surprising, extensively anticipated as they were.

Significantly, Professor Mitchell's study confirms YouGov's pre-election polling which suggested a narrowing gender gap and a significant lead amongst working class voters. According to the survey data collected by the Study, their respondents voted as follows, by gender (N.B. Mitchell is referring us to the Study data on regional voting in the 2011 Holyrood election).

Male respondents (SES)...
  • SNP ~ 46%
  • Labour ~ 24%
  • Tories ~ 12%
  • Liberals ~ 4%
  • Greens ~ 6%
  • Others ~ 8%

And women...

Female respondents (SES)...
  • SNP ~ 43%
  • Labour ~ 29%
  • Tories ~ 12%
  • Liberals ~ 6%
  • Greens ~ 4%
  • Others ~ 6%

On social class, the Study asked about (a) subjective social class, namely how respondents self-identify and (b) objective social class, based on the familiar ABC1/C2DE categorisations I've discussed previously.  Firstly, the Scottish Election Study's working class data, subjectively then objectively defined:

Respondents subjectively identifying as working class...
  • SNP ~ 47%
  • Labour ~ 33%
  • Tories ~ 7%
  • Liberals ~ 4%
  • Greens ~ 3%
  • Others ~ 6%
C2DE voters (working classes)...
  • SNP ~ 47%
  • Labour ~ 28%
  • Tories ~ 9%
  • Liberals ~ 4%
  • Greens ~ 4%
  • Others ~ 8%

In brief, amongst those subjectively identifying as working class in the Election Survey, the SNP beat Labour by 14%. According to social grading's objective criteria, the gap was even wider - with Labour lagging 19% behind the SNP.  Interestingly, this outcome echoes (and amplifies) the results of YouGov's pre-election polling, which recorded an SNP lead over Labour amongst C2DE voters of a magnitude varying from 4% to 15% in the constituency vote and -1% to 10% in the regional vote. Interestingly at the beginning of the campaign, the polls suggested that ABC1 voters remained to be convinced by the Nationalists, holding on the Labour allegiances more tenaciously than their C2DE fellow citizens. According to Mitchell's data, bourgeois participants in the Survey reported the following voting behaviour, with the same subjective then objective analysis...

Respondents subjectively identifying as middle class...
  • SNP ~ 37%
  • Labour ~ 16%
  • Tories ~ 22%
  • Liberals ~ 8%
  • Greens ~ 9%
  • Others ~ 8%

And according to social grading's objective criteria...

AB voters (upper middle & middle classes)...
  • SNP ~ 41%
  • Labour ~ 25%
  • Tories ~ 14%
  • Liberals ~ 5%
  • Greens ~ 8%
  • Others ~ 7%


C1 voters (lower middle classes)
  • SNP ~ 41%
  • Labour ~ 25%
  • Tories ~ 17%
  • Liberals ~ 8%
  • Greens ~ 6%
  • Others ~ 3%

The rather bizarre looking results of the subjective social class findings - 22% of which is Tory - can probably be explained by factoring in a third option given to respondents - to subjectively identify with no social class at all.  Amongst those respondents, the results were striking - and as follows.

Respondents subjectively identifying as having no class...
  • SNP ~ 53%
  • Labour ~ 17%
  • Tories ~ 14%
  • Liberals ~ 4%
  • Greens ~ 4%
  • Others ~ 8%

Professor Mitchell's slides also lays out the voting data according to national identity - with an interesting and sensitive range of options being afforded to those questioned, allowing those answering to give priority to British or Scottish identities, declare an equivalence between them, or to deny either. The Professor also sets down voting by religious affiliation, albeit with a fairly limited range of categories. Three in fact: no religion; Church of Scotland or Catholic. The data on these issues can be found on his ninth slide. No doubt the Study will generate plenty of other eccentric pieces of data to keep amateur psephologists in the public cheered and distracted from their other labours, for some time to come.

23 June 2011

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

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

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

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

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

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

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

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

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

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

22 June 2011

Cunningham up before the beak...

Today and yesterday, Holyrood's Justice Committee took evidence on the Government's expedited Offensive Behaviour at Football and Threatening Communications Bill. In addition to Ministers' accompanying Explanatory Notes and Policy Memorandum, the Scottish Parliament's Information Centre have published a briefing paper on the Bill as introduced, which sets out the general implications of these proposals much more clearly than I could, across fifteen pages. Reference is also made to the much-mooted existing legal framework which Roseanna Cunningham is seeking to supplement with these new offences. It is also worth reading the range of written submissions the Justice Committee have already received.  Thoughtfully, the team who put the SPIce briefing together included this quotation, attributed to Samuel Taylor Coleridge...

“The spirit of sectarianism has been the cause of our failures. We have imprisoned our own conceptions by the lines, which we have drawn, in order to exclude the conceptions of others.”

I'm feeling a bit under the weather today, so I don't intend to go into these matters in any depth at the moment. In the meanwhile, Alex Massie and Ideas of Civilisation have had their say on the proposals. Massie is inveterately hostile, styling it "a Bill that shames Scotland"; while IoC tells the tale of "Humpty Dumpty the Sectarian Bigot". As to the evidence sessions themselves, they confirm two fears. Firstly, confusion and uncertainty about the scope of these proposals reigned and the Committee clearly had insufficient time to come to a clear understanding of the legal scope of these proposals, never mind their desirability or potential problems which the government drafters have not foreseen. Secondly, there was a great deal of the rhetoric I've criticised before, which recognises that broadly-drafted laws may well criminalise a great gamut of unintended conduct, but soothes parliamentarians with reassurances that the trusty authorities can be relied upon to limit enforcement of the laws to the real villains, so we shouldn't really worry about it. On the first fear, I'm afraid that even the Minister herself, sponsoring this would-be law and guiding it through parliament, did not always appear fully in command of the detail of her proposals. Like Scots Law Thoughts, I was particularly surprised to hear Roseanna argue, when asked how many people she envisaged would be prosecuted under the Bill's two new offences, that...

"I cannot answer your question. It would perhaps be better to ask the police witnesses what they believe is the likely extent to which they will be able to use the legislation. All I would be able to do is take a wild guess, but I am not in a position to do that. We are obviously not expecting the police to arrest 5,000 people, but if disorder of the kind that we have seen kicks off, we expect the police to use the legislation, where they consider it appropriate."

This might be unobjectionable, but for the fact that the Minister makes just such an estimate - or in her terms, a wild guess - in the Explanatory Notes to the Bill, explaining the Government's financial calculations about how much it will cost. The Notes explicitly anticipate that there will be between five to ten sheriff and jury trials under this Bill [Explanatory Notes, para 65] and an additional 50 - 100 additional summary cases per annum [para 66] for section 1 offences (offensive behaviour at regulated football matches). Similarly, the Government estimate that the Bill's section 5 threatening communications provisions will see an increase of between 2 - 5 solemn cases each year [para 73] and 20 - 50 new summary cases [para 74]. Either we have no idea how many people this Bill will see prosecuted, or these financial figures are basically moonshine. My own sense is that Roseanna's oral comments emphasise an important aspect of this - given the breadth of the powers proposed, this is a Bill which could be enforced with a range of intensities and which also relies to some extent on how football fans conduct themselves (at least for section 1 offences).

That no member of the Committee noticed this discrepancy in the Minister's paper and oral submissions, can be taken as evidence that they too are (quite understandably) struggling to conduct an examination of this Bill properly.  It is profoundly silly, when a self-imposed haste results in the Bill's lead Minister telling the scrutinising Committee that her officials may well be unable to produce written responses to detailed concerns raised by external witnesses. "We will do what we can in the available time. The short timescale imposes certain difficulties for us, too, in giving as much information as we can", she said.  More positively, I'm much encouraged by the inquisitorial performance of new Justice Committee itself. While it was always going to be a relief to get shot of Baillie Bill Aitken, it was a joy to hear Graeme Pearson, one of Labour's new MSPs actually express the following sentiments...

"I have seldom heard a police officer who did not welcome additional powers. I do not think that the fact that the police welcome additional powers is, in itself, a virtue. I am more interested in a free community than in a community that is policed to the nth degree."

In the event, the media mainly focussed Roseanna's response to Tory member of the Committee, John Lamont. Here's the section of the official report (which one should always remember, tends to deviate somewhat from what the speakers actually said...)

John Lamont: The minister will be aware of the words of the song "Flower of Scotland" and those of the British national anthem. Can you envisage the singing of either of those songs becoming offensive behaviour under the act?
Roseanna Cunningham: The glib answer to that is no, of course not. However, in terms of a criminal offence, all the surrounding facts and circumstances might turn that into something problematic. It might have been more appropriate to consider, for example, "Rule, Britannia", which I understand is frequently sung on one side of the terraces in Scotland and which I would not regard as being an offensive song. However, we do not define which songs are offensive and list them, because whether something is offensive is a matter of the facts and circumstances of the case.  I have seen hundreds of Celtic fans gesticulating across an open area to Rangers fans by making the sign of the cross in a manner that I can only describe as aggressive. The sign of the cross is not, in itself, offensive, but I suppose that in circumstances such as Rangers and Celtic fans meeting on a crowded street, it could be construed as being so, which shows why the circumstances are so important.  My immediate answer to your question is no, of course not. However, no matter how inoffensive an action, the response must always be qualified with the caveat that it depends on the circumstances.

John Lamont: Just to be clear, is the minister saying that if supporters want to be absolutely sure of not falling within the definition of the act, they should probably avoid singing those songs?

Roseanna Cunningham: I will not be drawn into making that kind of statement, Mr Lamont. You know perfectly well what I am saying, and so does everybody else.

For those interested in hearing what Roseanna had to say, here is live coverage of the first evidence-taking session from the BBC's Democracy Live. The second session is now also available here. Those wanting to skim it can read the official report of the Committee's proceedings here. For my part, I did not find it a particularly reassuring performance, just nine days before this Bill is expected to be passed into law...

20 June 2011

Scotland's coelacanth: the legal establishment...

Instinctively, I can understand the irritation which a character like Lord Hope of Craighead can provoke.  Those who watched the BBC's documentary following four of the Justices of the UK Supreme Court (of which, a brief clip here), may recognise what I called Hope's "slight, rather dowdy and bespectacled person". As he shuffles around a supermarket, or scurries through the London underground, only the most obsessive judge-spotter would be able to identify this quiet man under his outsize hat. Unlike their American counterparts, no Supreme Court justice in the UK is a household name, despite Alex Salmond's best efforts in recent weeks to single out Lord Hope for special recognition. Day to day, despite the national compass of his judgments, and the millions of people theoretically subject to them, most would struggle to distinguish Lord Hope of Craighead from Adam. That the same is true of the average Holyrood or Westminster backbencher, whatever their allegiances, can never rankle in quite the same way.  For those with impatient political urges, there is something about the stiff self-confidence of the judicial character, the tendency to experience and talk about the qualities of their own judgement in unsatisfactory opaque terms, which all too easily nettles. Paradoxically, the sting can be even more pronounced, when it is delivered with the mildness of the Scots Deputy President of the UK Supreme Court. Modesty of manner only aggravates the offence.

For those with a more encompassing idea of the political, who consciously or unconsciously accept critical theories of law, the constitutionally and often politically-laden deliberations of a judge at the highest level, for all of the accompanying shuffling of texts, gathering of submissions and reference to existing case law - can easily look like so much moonshine. Where judges insist their deliberations unerringly entail the conclusions they reach - critical folk, peering in, can readily come to suspect that the desired conclusion is identified first and only then is legal reasoning generated with an eye to its justification. Judges and lawyers also have a tendency to use terms like "objectivity" without any apparent sense of embarrassment, as if they were just old-fashioned grocers, just slapping a case on their scales - and reading off the accurate result in trusty bronze weights. Add to this some of the other legal consciousness narratives of our time - the idea of law as a book of more or less determinate rules, immoveable and independent; the idea that law is there to be tactically manipulated to particular ends; the idea that law is capricious, an expression of more or less arbitrary power - and you have a recipe for a profoundly difficult conversation. Do you believe in the rule of law? What does this rule of law look like, when your laws aren't framed as rules? How seriously should we take judicial disavowals of the political character of their decisions anyway? What then is the legitimate compass for "political" figures to criticise judicial findings?

A few weeks ago, I argued that defending the distinctiveness of Scots Law has its political curiosities, not least in that a very small segment of the Scottish population have any substantial ideas about what distinguishes Scots legal traditions from the English. This flight from detail was confirmed last week in the highest quarters of government. After all of its bilious indicting of Lord Hope for leading English Justices of the UK Supreme Court in obliterating Scottish legal distinctiveness, Scottish Ministers have justified the provisions of their rushed  anti-sectarianism Bill by claiming, without any irony, Scotland should be "brought into line with England".  The mind boggles. Actually, it occurs to me that we might go still further.  If few are likely to rush to the political barricades to defend Scotland's Roman distinctiveness, imagine the tiny band who would form up to defend the "Scottish legal establishment", as it is often styled.

Ideas about this establishment are manifold, some rooted in experience, others fantasies.  Yet it is fair to say that the social life and characters associated with Scots law are conceived in profoundly ambivalent ways in our public discourses. In the semiotic sphere, solicitors tend to be overlooked.  It is familiar to conceive of the Scottish judiciary and the Faculty of Advocates as a rather queer legal aristocracy, their emblematic musty wigs and gowns and plummy voices picked up in Edinburgh public schools - hilariously incompatible with popular perceptions of the ruling character of Scottish life. Whatever the reality about the social origins, privilege and gender profile of the membership of the Court of Session and Scottish Bar, these organisations are primarily envisaged as defining castes of Edinburgh, and like the city in which they are based, easily conceived as Anglicised (and by consequence, de-nationalised in Scottish terms), haughty, haute-bourgeois, tedious, prosperous - and probably Tory. There is prowess too - the advocate is generally presented as an impressive and prestigious figure. New Club memberships, New Town addresses, participation in selective golf-clubs - for many Scots, this whole cast of contemporary legal characters could be comfortably stuffed and mounted in the National Museum of Scotland on Chambers Street, as exhibitions of reactionary and outmoded manners - stuffy monuments to legal Edinburgh's cockroach capacity to resist time, wind, rain and flood - preserving its ancient privileges and old pomposities.  When a legal scandal blows up, it comes as a surprise when this fossil swims up quite alive and quite confident, not seeming to recognise how fustian and out of place in contemporary Scotland it appears. Marble-mouthed characters like Richard Keen QC, Dean of Faculty of Advocates, seen last week in the UK Supreme Court with wig and spectacles perched at rakish and condescending angles respectively, are all too easily pressed into the service of this representation of Scotland's legal world.

As Kenneth Roy noted in a recent edition of the Scottish Review, it is precisely the idea that the conceited-seeming and over-entitled expectations of this Scottish legal establishment were being denied which lent the former Lord Advocate Elish Angiolini her profound symbolic power and charm. There is plenty of malicious glee to be had, imagining setting a Govan coalmerchant's daughter and solicitor over the heads of would-be grandees of the Faculty, who were reduced to gawks and the frustrated puffing of foiled ambition.  And imagining is the crucial point in all of this.  By no means would I accept this representation of the Scottish legal world unqualified. Indeed some of it is simply false. Yet some approximation of these ideas and images of the legal establishment enjoy extensive purchase in the Scottish public consciousness and public commentary. Despite greater diversity in the professions, despite a large and growing cohort of women, despite the large number of advocates who practice outside Edinburgh, gendered and social assumptions persist unreformed. That such ideas can so easily be summoned to mind are the vital background to the recent UK Supreme Court ballyhoo. As other bloggers have modestly noted, the detailed disagreements about the extent of the UK Court's jurisdiction, the nature of the rights afforded by the European Convention, of the devolution Act and of Scottish legal history, even the justices or injustices of the Cadder or Fraser judgments - are unlikely to mean much to or move most folk, politically speaking.  Salmond's rhetoric is much more likely to be understood in terms of more straightforward images and impressions - and the proxy pleasures of telling the arrogant old crows of the Scots judiciary to go and stuff it.  The real paradox of Salmond's position is that he is effectively mobilising such critical notions of the establishment against Lord Hope while simultaneously attempting to perpetuate the autonomy of that selfsame legal establishment - and even aggrandise their jurisdiction.

On the other side of things, I do wonder about the strategic implications of the First Minister's roistering.  The election is won, but the independence referendum is yet to win.  As recent polling on Scottish independence has indicated, Scottish AB voters - the upper and middle classes - present a particular challenge from the N(/n)ationalist perspective. According to TNS-BRMB, Scots bourgeois respondents were the most inveterately opposed to independence, of all Scottish social grades, recording the following response:

AB ...
  • Agree ~ 29%
  • Disagree ~ 58%
  • Don't know ~ 13%

While much of the public may be unmoved by - or even vaguely favour - the tenor of the First Minister's argument with the jurisdiction of the UK Supreme Court, the same is, I fancy, unlikely to be true for these already disaffected AB voters.

19 June 2011

Time the SNP got serious about the independence referendum...

I believe I've mentioned the work of Susan Silbey and Patricia Ewick once or twice before. The Common Place of Law: Stories from Everyday Life was published in 1998. Based on empirical research conducted in the American State of New Jersey, their research was concerned with "social constructions of legality". Key questions include "How do people experience and interpret law in the context of their daily lives? How do commonplace transactions and relationships come to assume or not assume a legal character? And in what ways is legality constructed by these popular understandings, interpretations and enactments of law"? [p.33]. As these research questions imply, Silbey and Ewick were particularly interested in "popular" conceptions of law, rather than isolating understandings of legality to classical "legal" actors, such as lawyers, judges - the police. From their studies, they generated three legal consciousness narratives. Some of the terms employed are highly problematic and much contested in the associated literature - the idea of "legal consciousness" in particular is controversial - I don't propose to descend into these academic imbroglios in any detail.

Sufficeth to say, Ewick and Silbey discerned a range of attitudes about law from their interviewees, from the idea of law as terrain of conflict, working with the law and manipulating its rules and strictures to realise ends and desires - to individuals standing before the law, experienced and conceived as a timeless, neutral, objective body of determinate standards, requiring only their submission. I'm sure from your own experience, you will be able to recall examples of conversations, which turn to legal subjects - and you find yourself or your companion earnestly saying "that isn't legal". I can still vividly recall overhearing one such earnest discussion in a pub, after Iraq had been invaded. Two old fellows, neither of whom, best I could discern from their talk, had any legal training at all, entertained several minutes of conversation, concluding "... of course it's an illegal war."

At the time, I rather ungenerously chortled at this. Lawyers are often disposed to treat such popular legal commentaries as simply inaccurate or poorly informed, rather than something interesting in their own right (albeit quite uninteresting, as an authoritative opinion on some knotty legal conundrum).  Although I've misplaced the reference, a Scottish lawyer recently published an article in a learned journal (off the top of my head, I think it was the Edinburgh Law Review) touching on the online analysis of the prosecution of Tommy Sheridan - and particularly, the gap between popular understandings of the significance of particular aspects of the case and the view of legal professionals. For example, folk who attended closely to the trial will recall that the Advocate Depute narrowed the scope of the final indictment against Sheridan in the final days of proceedings. Many interpreted this as an indication that the Crown case was imperilled, an extraordinary concession in the face of Tommy's remorseless advocacy. Not so, if the final verdict is anything to go by.

I was reminded of all of this by a piece in the Scotland on Sunday this morning, in which Michael Moore's Tory mosca, David Mundell, "warned" the SNP about the risk of a legal challenge to the competence of Holyrood's referendum Bill...

"In an interview with Scotland on Sunday, Mundell said that if the SNP pressed ahead with a form which did not have Westminster support, disgruntled Unionists would probably go to the courts.  Such a dispute could involve a Unionist supporter challenging the Scottish Parliament's right to hold the referendum.  Lawyers said last night that such a legal challenge would go first to the Scottish courts, but could end up in the Supreme Court in London, whose validity has been attacked by Salmond and SNP ministers in recent weeks over its intervention in the Nat Fraser case. Mundell said: "I think it is essential that we work together to make sure that it is valid and stands up to third-party scrutiny, so there are no process issues and that there are no challenges based on process." He added: "I think it is very important the UK Government is involved in shaping the referendum to make sure we get a valid proper referendum that is free from challenge."

Supporters of independence will be very tempted to write this off as the UK Government flying a kite, indicating louche moves to scupper the referendum by nefarious legal means. However, it is vital that pro-independence and pro-referendum folk realise that Mundell has a point, or at least the ghost of a point. While it isn't necessary for the Scottish Government to consult with Westminster to winnow a legislatively competent referendum Bill - Alex Salmond simply does not have a free hand in framing this legislation. It is no answer to a legal case in the Scots Courts to cry "the Scottish people are sovereign", or even to cite international theorising about inalienable rights to self-determination and their exercise.

We are not assisted in Scotland by journalists who feel free to dispense legal advice (here's looking at your, Mr MacWhirter...) about issues beyond their ken. This is often at its most problematic where politics is concerned.For example, after the Holyrood election, Mr MacWhirter blithely reassured us that holding an independence referendum was within the powers of the Scottish Parliament. All well and good. I agree that there is a case that such a referendum does fall within Holyrood's powers. I agree that it would be outrageous if the institution could not hold such a ballot. However, the autonomous judiciary, interpreting the limited powers of the Scottish Parliament under the Scotland Act 1998, is exceedingly unlikely to be satisfied with the argument that the SNP won the election, ergo their referendum Bill is intra vires. This loose attitude towards law, and the failure to take it seriously, tends to generate eminently predictable "surprises" for the press, where their confident predictions that all is well collapse in the face of juridical interpretations. 

The point is that Holyrood's tribunes may feel themselves to be legislatively sovereign, or basically so, able to do whatever they like. They may be scandalised by Court findings that they're powers are circumscribed. However, that does nothing to alleviate the basic legal fact that Holyrood was not "born free" and cannot, in law, simply do as it fancies. Whether or not it is regarded as political legitimate, it is simply loopy to expect judges to abandon their dry work of legal analysis, by clause and section, simply because you have an alternative constitutional vision for the Scottish Parliament. This is not simply a question of the independence referendum. 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.

The case against the pleural plaques legislation was brought by a band of insurers, no doubt venally pursuing their own material interests, working with the law.  As Mundell has pointed out, any independence referendum passed by Holyrood could face a similar challenge. In terms of judicial authorities, it is still early days in the interpretation of the Scotland Act 1998. While there may be questions of title and interest to sue (which I won't go into), the basic legal fact is that any punter with money to spend, opposed to a referendum on independence, will be able to solicit the review of any Referendum (Scotland) Act under the Scotland Act. Commentators often suggest that trying to scupper the independence referendum using legal means is likely to outrage public opinion and afford Nationalists advantages when attitudes towards independence are tallied. They imply, as a result of this, that no legal challenge will be lodged. While I suspect they are correct that formal political entities, such as the UK government and Unionist political parties, are unlikely to do so - what of the lone Unionist litigant who has no political reputation to sustain, who is hell-bent only on foiling the perfidious Nationalist plot using judicial means? That a legal challenge would be potentially politically disastrous may trouble him not at all. It is with this character which Nationalists, quite seriously, may have to contend. He is not a fictional spectre raised up by villainous Unionists, but a real possibility, even a likelihood.

This action-happy figure need not even succeed in his case, to cause no end of disruption.  The press may entertain notions about canny Alex Salmond, holding the referendum at a time best-laid to suit himself. However, merely consider this. The Scottish Parliament's Damages (Asbestos-related Conditions) (Scotland) Act received royal assent on the 17th of April 2009 - and the final hearing on its legislative competence was heard in the UK Supreme Court only this week. We await their judgment. If time really is of the essence, pro-nationalists ought to be profoundly concerned about the risks of legal review of the independence referendum. We should also take the legislative competence issue far more seriously, rather than pretending that it does not exist, or allowing ourself to be duped by political commentators, moonlighting as barrack-room lawyers. This isn't Mundell flying a kite. This isn't (particularly) Her Majesty's government making mischief. Nor, for that matter, can the potential problem be wished away by fierce invocations of politics, democratic legitimacy, self-determination or what have you.  While legal consciousness narratives are interesting, it is only a fool who comes to love his own ignorance, and noisily continues to broadcast it in the face of irrefutable contrary facts.

17 June 2011

SNP "bring Scotland into line with England..."

Fan-bloody-tastic. When Kenny MacAskill gave his atrocious Newsnicht interview on the SNP's sectarianism plans, I asked the following question and offered something in the way of prophecy...

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.

Scrutinising the Bill and its associated policy memorandum and explanatory notes (links and text here) imagine my dismay to read the following lines from the Government, justifying the shape of its proposed new offence of "threatening communications". Emphasis mine...

40. The offence will also criminalise threats made with the intent of stirring up religious hatred. “Religious hatred” is defined as meaning hatred against a person or group of persons based in their membership of a religious group, or of a social or cultural group with a perceived religious affiliation. The definition of “religious group” is the same as that used in section 74 of the Criminal Justice (Scotland) Act 2003, which provides for a statutory aggravation that an offence was aggravated by religious prejudice. It brings Scotland into line with England and Wales, where threats intended to stir up religious hatred are criminalised by the Public Order Act 1986, as amended by Racial and Religious Hatred Act 2006 (and both Northern Ireland and the Irish Republic have also legislated to criminalise inciting religious hatred).

41. The provision is restricted to threats made with the intent of stirring up religious hatred. As such, it does not interfere with the right to preach religious beliefs nor a person’s right to be critical of religious practices or beliefs, even in harsh or strident terms. There was extensive criticism of early attempts to criminalise incitement of religious hatred in England and Wales on the grounds that provisions extending to insults and abuse as well as threats could inadvertently criminalise comedians and satirists who make jokes about religion, or even religious texts themselves. We believe that the Bill avoids those problems and does not restrict legitimate freedom of expression.

Well whoop-de-doo. As long as ministers believe that, all's dandy, eh? Where do I sign? People may disagree with me about whether or not incitement of religious hatred should be criminalised at all - we can have a discussion about that. However, there is no line, no quietly ordered and rational reason why we simply must totter after Ireland and Norn Ireland and England here. Elsewhere in the same document, this difference between Scotland and England is presented as "a gap" by Scottish Ministers, as if it was an accidental legal oversight, rather than a considered and potentially justified political difference. Although it seems to have slipped their minds, in the House of Commons the SNP vigorously opposed Tony Blair's religious hatred Bill. Indeed, you can still find a few self-congratulatory news releases to that effect on the party's website. Ironically enough, the focus of Nationalist complaints (and the key reason why they opposed the measures) was concern that Blair's Bill would extend over Scotland. Here was Angus MacNeil MP in 2006:

"I don't think the Government properly thought through the permutations of this legislation. They could give no guarantees on the floor of the House that this would not affect Scotland. Such an absent minded and frankly reckless attitude was their ultimate undoing. As a result of tonight's vote, won by a margin of one, religious comment no longer faces the prospect of prosecution. There will be widespread satisfaction in Scotland at the result of this vote which was causing great unease."

How far we've come, when this robust defence of Scottish distinctiveness melts into this meek manager's whimper from the SNP, who reassure us that we have to be tidily "brought into line" with England and Wales. Just a little trim, sir. Nothing to trouble yourself over.  All that effort to foil Blair, and then you find yourself enacting his legislation yourself, at breakneck speed, to achieve precisely the end you once so strenuously resisted. Inspired. Whatever your view of the merits of demerits of criminalising incitement of religious hatred, in the football stadium or outside of it, I'm incandescent that the SNP government has permitted itself to be so vacuous and so cavalier about such serious issues, with any number of practical and principled tensions tugging the text this way and that. The Bill was published this morning. Holyrood's Justice Committee has issued what it unembarrassedly describes as its "call for evidence", with a deadline for written submissions of noon on Friday the 24th of June. I've a blog or two planned on the text of the Scottish Government Offensive Behaviour at Football and Threatening Communications (Scotland) Bill, the text of which I published this morning, which should hopefully explain some of its detail (and identify a few of its more chimerical implications, as drafted).

For Holyrood to sag before the Emperor's quixotic wheezes, however well-intentioned his basic inspiration to legislate in this area, and worse, to smile admiringly at his follies, and collude with them - is unworthy, totally unworthy of the institution and the many decent folk who serve there. It would be a terrible shame to discover that this new-constituted parliament so speedily lost any independence of mind its people once had, extracting every tribune's vertebral column on handing the new cadre of representatives their identification cards and the keys to their parliamentary offices. There are signs that some in the body recognise that. In her contribution to the Justice debate in Holyrood this week, SNP MSP and convenor of the Justice Committee, Christine Grahame, observed...

"The proposed anti-sectarianism bill is to be laid before Parliament some time this week, so we have not yet had sight of it. Notwithstanding that, I share the concerns about the fact that it is to be dealt with through emergency or truncated procedure, with little time for parliamentary let alone committee scrutiny. That rather contradicts the recent statement by the Cabinet Secretary for Parliament and Government Strategy that he wants to improve pre-legislative scrutiny. As I understand it, there will be only token scrutiny during the passage of the bill. As a back bencher and convener of the Justice Committee, I cannot say that I find that appropriate. I really do not see why the bill is emergency legislation."

I couldn't agree more.

That anti-sectarianism Bill in full...

As Roseanna Cunningham promised on Wednesday, the Scottish Government's anti-sectarianism Bill, or to give it is proper title - the would-be Offensive Behaviour at Football and Threatening Communications (Scotland) Act - was introduced to parliament yesterday and is publicly available on the internet from this morning. For your information, I have set out the proposed Bill in full below. You may also be interested in a couple of the accompanying documents published alongside the draft, particularly the Government's explanatory notes to the Bill and their supporting policy memorandum.  I will have more to say about the contents of the proposed legislation anon.  For those without a background reading statues, their fashion of leaping about and referring you to five subsections and definitions simultaneously can make grasping their meaning something of a chore. That said, the broad gist of the Bill is, I think, reasonably plain.

Offensive Behaviour at Football and Threatening Communications (Scotland) Bill


Offensive behaviour at regulated football matches
  • 1 Offensive behaviour at regulated football matches
  • 2 Regulated football match: definition and meaning of behaviour “in relation to” match
  • 3 Fixed penalties
  • 4 Sections 1 and 2: interpretation
Threatening communications
  • 5 Threatening communications
  • 6 Section 5: interpretation
  • 7 Sections 1(1) and 5(1): offences outside Scotland
  • 8 Commencement
  • 9 Short title
    Offensive behaviour at regulated football matches...

    1 Offensive behaviour at regulated football matches
    (1) A person commits an offence if, in relation to a regulated football match—
    • (a) the person engages in behaviour of a kind described in subsection (2), and
    • (b) the behaviour—
      • (i) is likely to incite public disorder, or
      • (ii) would be likely to incite public disorder.
    (2) The behaviour is—
    • (a) expressing hatred of, or stirring up hatred against, a group of persons based on their membership (or presumed membership) of—
      • (i) a religious group,
      • (ii) a social or cultural group with a perceived religious affiliation,
      • (iii) a group defined by reference to a thing mentioned in subsection (4),
    • (b) expressing hatred of, or stirring up hatred against, an individual based on the individual’s membership (or presumed membership) of a group mentioned in any of sub-paragraphs (i) to (iii) of paragraph (a),
    • (c) behaviour that is motivated (wholly or partly) by hatred of a group mentioned in any of those sub-paragraphs, (d) behaviour that is threatening, or
    • (e) other behaviour that a reasonable person would be likely to consider offensive.
    (3) For the purposes of subsection (2)(a) and (b) it is irrelevant whether the hatred is also based (to any extent) on any other factor.

    (4) The things referred to in subsection (2)(a)(iii) are—
    • (a) colour,
    • (b) race,
    • (c) nationality (including citizenship),
    • (d) ethnic or national origins,
    • (e) sexual orientation,
    • (f) transgender identity,
    • (g) disability.
    (5) For the purposes of subsection (1)(b)(ii), behaviour would be likely to incite public disorder if public disorder would be likely to occur but for the fact that—
    • (a) measures are in place to prevent public disorder, or
    • (b) persons likely to be incited to public disorder are not present or are not present in sufficient numbers.
    (6) A person guilty of an offence under subsection (1) is liable—
    • (a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both, or
    • (b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.
    2 Regulated football match: definition and meaning of behaviour “in relation to” match
    (1) In section 1 and this section, “regulated football match”—
    • (a) has the same meaning as it has for the purposes of Chapter 1 (football banning orders) of Part 2 of the Police, Public Order and Criminal Justice (Scotland) Act 2006 (asp 10) (see section 55(2) of that Act), but
    • (b) does not include a football match outside Scotland unless the match involves—
      • (i) a national team appointed to represent Scotland, or
      • (ii) a team representing a club that is a member of a football association or league based in Scotland.
    (2) For the purposes of section 1(1), a person’s behaviour is in relation to a regulated football match if it occurs—
    • (a) in the ground where the regulated football match is being held on the day on which it is being held,
    • (b) while the person is entering or leaving (or trying to enter or leave) the ground where the match is being held, or
    • (c) on a journey to or from the regulated football match.
    (3) The references in subsection (2)(a) to (c) to a regulated football match include a reference to any place (other than domestic premises) at which such a match is televised; and, in the case of such a place, the references in subsection (2)(a) and (b) to the ground where the match is being held are to be taken to be references to that place.

    (4) For the purpose of subsection (2)(c)—
    • (a) a person may be regarded as having been on a journey to or from a regulated football match whether or not the person attended or intended to attend the match, and
    • (b) a person’s journey includes breaks (including overnight breaks).
    3 Fixed penalties

    In Part 1 of the table in section 128 of the Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8) (fixed penalty offences), after the entry relating to section 52(1) of the Criminal Law (Consolidation) (Scotland) Act 1995, insert— “Section 1(1) of the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2011 (asp 00) Offensive behaviour at regulated football matches”

    4 Sections 1 and 2: interpretation

    (1) Section 1(1) applies to—
    • (a) behaviour of any kind including, in particular, things said or otherwise communicated as well as things done, and
    • (b) behaviour consisting of—
      • (i) a single act, or
      • (ii) a course of conduct.
    (2) In section 1(2)—
    • (a) membership, in relation to a group, includes association with members of that group,
    • (b) “presumed” means presumed by the person expressing hatred or, as the case may be, doing the stirring up,
    • (c) “religious group” has the meaning given by section 74(7) of the Criminal Justice (Scotland) Act 2003 (asp 7).
    (3) In section 1(4)—
    • (a) “disability” means physical or mental impairment of any kind,
    • (b) “transgender identity” means any of the following—
      • (i) transvestism,
      • (ii) transsexualism,
      • (iii) intersexuality,
      • (iv) having, by virtue of the Gender Recognition Act 2004 (c.7), changed gender,
      • (v) any other gender identity that is not standard male or female gender identity.
    (4) In section 2(3), “televised” means shown (on a screen or by projection onto any surface) whether by means of the broadcast transmission of pictures or otherwise.

    Threatening communications...

    5 Threatening communications
    (1) A person commits an offence if—
    • (a) the person communicates material to another person, and
    • (b) either Condition A or Condition B is satisfied.
    (2) Condition A is that—
    • (a) the material consists of, contains or implies a threat, or an incitement, to carry out a seriously violent act against a person or against persons of a particular description,
    • (b) the material or the communication of it would be likely to cause a reasonable person to suffer fear or alarm, and
    • (c) the person communicating the material—
      • (i) intends by doing so to cause fear or alarm, or
      • (ii) is reckless as to whether the communication of the material would cause fear or alarm.
    (3) For the purposes of Condition A, where the material consists of or includes an image (whether still or moving), the image is taken to imply a threat or incitement such as is mentioned in paragraph (a) of subsection (2) if—
    • (a) the image depicts or implies the carrying out of a seriously violent act (whether actual or fictitious) against a person or against persons of a particular description (whether the person or persons depicted are living or dead or actual or fictitious), and
    • (b) a reasonable person would be likely to consider that the image implies the carrying out of a seriously violent act against an actual person or against actual persons of a particular description.
    (4) Subsection (3) does not affect the generality of subsection (2)(a).

    (5) Condition B is that—
    • (a) the material is threatening, and
    • (b) the person communicating it intends by doing so to stir up religious hatred.
    (6) It is a defence for a person charged with an offence under subsection (1) to show that the communication of the material was, in the particular circumstances, reasonable.

    (7) A person guilty of an offence under subsection (1) is liable—
    • (a) on conviction on indictment, to imprisonment for a term not exceeding 5 years, or to a fine, or to both, or
    • (b) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine not exceeding the statutory maximum, or to both.
    6 Section 5: interpretation
    (1) Subsections (2) to (5) define expressions used in section 5.

    (2) “Communicates” means communicates by any means (other than by means of unrecorded speech); and related expressions are to be construed accordingly.

    (3) “Material” means anything that is capable of being read, looked at, watched or listened to, either directly or after conversion from data stored in another form.

    (4) “Religious hatred” means hatred against—
    • (a) a group of persons based on their membership (or presumed membership) of—
      • (i) a religious group (within the meaning given by section 74(7) of the Criminal Justice (Scotland) Act 2003 (asp 7)),
      • (ii) a social or cultural group with a perceived religious affiliation, or
    • (b) an individual based on the individual’s membership (or presumed membership) of a group mentioned in either of sub-paragraphs (i) and (ii) of paragraph (a).
    (5) “Seriously violent act” means an act that would cause serious injury to, or the death of, a person.

    (6) In subsection (4)—
    • (a) “membership”, in relation to a group, includes association with members of that group, and
    • (b) “presumed” means presumed by the person making the communication.

    7 Sections 1(1) and 5(1): offences outside Scotland

    (1) As well as applying to anything done in Scotland, sections 1(1) and 5(1) also apply to anything done outside Scotland by—
    • (a) a British citizen, a British Overseas Territories citizen, a British National (Overseas) or a British Overseas citizen,
    • (b) a person who under the British Nationality Act 1981 (c.61) is a British subject,
    • (c) a British protected person within the meaning of that Act, or
    • (d) a person who is habitually resident in Scotland.
    (2) Section 5(1) also applies to a communication made by any person from outside Scotland if the person intends the material communicated to be read, looked at, watched or listened to primarily in Scotland.

    (3) Where an offence under section 1(1) or 5(1) is committed outside Scotland, the person committing the offence may be prosecuted, tried and punished for the offence—
    • (a) in any sheriff court district in which the person is apprehended or in custody, or
    • (b) in such sheriff court district as the Lord Advocate may direct, as if the offence had been committed in that district (and the offence is, for all purposes incidental to or consequential on the trial and punishment, deemed to have been committed in that district).
    8 Commencement
    This Act comes into force on the day after Royal Assent.

    9 Short title
    The short title of this Act is the Offensive Behaviour at Football and Threatening
    Communications (Scotland) Act 2011.