30 July 2011

Off the ball...

Yesterday, the Scottish Government published a report An Evaluation of Football Banning Orders in Scotland.  The conundrum is this. Despite the Act coming into force in September 2006, as of the 7th of December 2010, only 101 football banning orders have been made since, 44 in Strathclyde. By contrast, in England and Wales, about 1,000 equivalent orders are made per annum. During the English football season of 2008 - 2009, for example, 3,241 orders were in force across the country. Although differences in the population of the two jurisdictions is clearly relevant - England and Wales' 53,000,000 to Scotland's 5,200,000 - the researchers note...

3.11 ... in key SPL clubs the size of the risk support groups was often quite comparable to the risk groups in the English premier division. For instance, most of Manchester United's 74 active FBOs are civil applications targeting some of its 30 to 40 core risk supporters (with roughly a further 150 'hangers on' or 'peripherals'). Several key SPL clubs have risk groups that can readily match this both in terms of core group and peripheral numbers."

The report includes a number of interesting bits and pieces. Given the broad terms of the Act, and the significant number of folk we might envisage being caught and banned if the legislation was ruthlessly enforced, why have relatively few orders been made here? What implications might this study have for the Offensive Behaviour at Football etc. (Scotland) Bill? And what sort of folk have found their enjoyment of the sport curtailed anyway? However, I'm getting ahead of myself. It would helpful, albeit briefly, to explain the legislative background, the nature of a football banning order, how it may be obtained against an individual - and highlighting along the way some of the findings of the research which particularly caught my interest or attention...

The legislation...

Want of interest keeps me off the football terraces. No order of any court is required. However, under Part 2 of the Police, Public Order and Criminal Justice (Scotland) Act of 2006, Scottish courts are empowered to constrain even the most die-hard fitba fans from setting foot in their cherished stadia, using so-called football banning orders, if they misbehave themselves. Such orders can be imposed where an individual has been convicted of an offence - where that offence involved "violence or disorder" and "related to" a football match.  Such a relationship is substantiated where the offence was committed at the match, while the malefactor was entering of leaving the ground, was on their journey to or from a football match or "where it appears to the court from all the circumstances that the offence is motivated (wholly or partly) by a football match" [§51(6) 2006 Act]. If the game is being televised in any place other than domestic premises, violence or disorder there can be taken to "relate" to a football match too. Pub villainies, for example, are caught.

Moreover, for the purposes of a football banning order, the Act's reference to "disorder" includes "stirring up hatred against a group of persons based on their membership or presumed membership" of a group, based on their colour, race, nationality, ethnic or national origins, membership of a religious group or of a social or cultural group with a perceived religious affiliation, sexual orientation, transgender identity or  disability [§56(5) 2006 Act]. "Disorder" also includes "displaying any writing or other thing which is threatening, abusive or insulting". Those of you who read the first draft of Roseanna Cunningham's now delayed Offensive Behaviour at Football etc (Scotland) Bill will likely recognise this legislative language.  

Where a sheriff is convinced that the convict's offence relates to football and represents violence or disorder, she may make an order, banning the individual from entering football grounds and such other premises as the sheriff decrees, "if the court ... considers it would help to prevent violence or disorder at or in connection with any football matches". The orders can vary in their length, but may not exceed 10 years (if accompanying a conviction which sends the convicted person to prison) and 5 years where the football banning order is itself the penalty, or accompanies a non-custodial sentence. Additional conditions may also be attached - for example, banning the ordered individual from stumping up at pubs in the city centre during match days - but as the research identifies, additional conditions have not been used in Scottish cases...

 3.22 One final aspect of orders, that hasn't been examined in detail to date, is the conditions associated with those orders. Beyond a basic ban on attending football matches, or individual stadia, or the standard additional ban on travelling abroad during certain match periods, what other measures are put in place to control the behaviour of misbehaving supporters? Here the contrast with England and Wales is at its most stark, because the answer to date for Scotland is that with literally two or three exceptions, additional conditions have not been imposed on any convicted FBO-recipient.

3.23 If an individual is passionate about attending football, or only misbehaves within football stadia, then a ban on attending matches may be effective either in terms direct preventative control, or in terms of deterring that individual from misbehaving away from the stadia in the future. But, if the individual concerned, as is characteristic of a significant number of risk supporters (though by no means all), has no interest in attending the match, but rather uses match days and bonding over club-allegiances as a way of accessing opportunities for recreational violence well away from the stadia, then FBOs without conditions (for instance banning them from city centre pubs on match days, or stopping them from visiting towns, and going on trains to towns, where 'their team' are playing away) are going to have no plausible impact. "No impact on them whatsoever, because they can't go to the football match. So what! They can still go to the city centre, they can still meet with their chums in the bar, he can still travel" (Police Respondent 4)

In addition, the chief constable of a police force may apply to the Sheriff Court under §52 of the Act, seeking a banning order against an individual.  Sheriffs may impose banning orders if they are satisfied that the person proceeded against by the force has "at any time" contributed to any violence or disorder in the UK or elsewhere and there are reasonable grounds to believe that making the order would help prevent violence or disorder with any football matches [§52(4)]. An order made under this section lasts, at most, for three years. No conviction is required. To breach a football banning order is an offence, liable on summary conviction to imprisonment of a term not exceeding six months, a fine, or both.

Anyone who followed the SNP's "anti-sectarianism" in Holyrood before the recess will be familiar with political concerns about behaviour at, around and concerning football matches.  One response to the Scottish Government's hasty Offensive Behaviour at Football etc (Scotland) Bill was to argue, we've got effective tools of criminalisation already. If only these were properly enforced, we'd have no need of new laws this new statute substantially only adds a new statute, not new powers. Incidentally, I don't entirely agree with this analysis - but it was a familiar enough refrain in some skeptical analysis of the proposals. For my present purposes most importantly, that argument tended to focus on existing criminal offences, such as breach of the peace or threatening or alarming behaviour under s38 of the Criminal Justice and Licensing (Scotland) Act 2010, rather than existing punishments and civil penalties such as banning orders.  This aspect of the researchers' findings is particularly interesting.

All police forces in Scotland have the power to take our civil proceedings against individuals and seek to persuade a sheriff that the individual should be subject to a banning order. Across Scotland, only thirteen of these s52 orders have been sought by police forces and granted, Strathclyde constituting 11 of them.  Interestingly, since the Act came into force, all but one of these civil applications by the police have been granted. This, in stark contrast with criminal cases under s51, where sheriffs seem far more reluctant to impose football banning orders in addition to or instead of other penalties. In the context of the SNP Government's interest in conduct around football, and given that "sectarian" type abuse is explicitly included in the football banning legislation, the failure of the police to use their civil powers to identify troublesome sorts starts to looks politically problematic, and certainly raises still further questions about the practical utility of the SNP's new Bill, when the authorities aren't availing themselves of existing laws.

 4.27 Finally, it should be noted that outside of Strathclyde officers gave limited consideration to the use of civil summary applications ( e.g. the equivalent of civil orders in England and Wales). A few had been made. They had exclusively been targeted at risk supporters, and all but one of these had succeeded with little difficulty. One force had even temporarily employed a civilian worker to help develop intelligence packages on all their major risk supporters with a view to pursuing summary applications against all of them. However, the resources were not available to develop further intelligence packages that would support summary applications. Nor were most forces on the whole prepared to consider funding such applications.

Not using powers they already have because of - yes you guessed it - being cash strapped. The researchers report that this exceedingly limited "propensity to use summary orders in Scotland", is "primarily due to budgetary constraints. Bluntly put "there is no money for civil applications in this force" (Police Respondent 2). For obvious reasons, new legislation will not alleviate these difficulties nor lead to a more stringent use of these civil bans.

Shrieval doubts: football bans a draconian penalty?

Significantly, in the criminal sphere, it is clear that the police and procurator fiscal are asking courts to impose such bans, but the shrieval bench is not granting the orders. Why this apparent reluctance? The researchers attempt to provide some insight into the phenomenon, interviewing ten sheriffs and soliciting their views on imposing FBOs. As the researchers note, this is a small number of respondents. There are, after all, some 142 permanent sheriffs sitting across the country. However, despite their (rather surprisingly limited) number of respondents, they have still generated some interesting data on judicial attitudes...

5.2 In the context of this small sample, the one issue that seemed most germane to the Sheriffs' and Fiscals' approach to FBOs was whether they regarded themselves as football fans. Seven of the ten Sheriffs and all four Procurator Fiscal deputes defined themselves as such, usually being supporters of particular clubs and longstanding season-ticket holders. They were particularly knowledgeable about the history of their team, the 'problem' of football hooliganism and sectarianism, and the scope of the legislation. Indeed, one particular Sheriff who has granted "at least a dozen" FBOs since the regime came into force was quite explicit about how his knowledge of the game has impacted upon his approach to football-related cases: "I'm a football man so I understand the dynamics of football behaviour, and I'm really against a lot of the behaviour that goes on... When there has been an opportunity, I have never not imposed an FBO. I'm very aware of them, I don't need to be told about it and it surprises me that there aren't more imposed." (Sheriff 1)

5.3 This approach, where the granting of a banning order even for relatively trivial offences is the default position - and where a one-year ban is merely a starting-point - stands in marked contrast to the perceptions of all the other Sheriffs, most of whom had never imposed an FBO of more than one year's duration and all of whom felt a banning order would be unnecessary in the absence of aggravating factors. In every Sheriff interview the words 'Draconian' and 'disproportionate' were repeatedly used, regardless of where the interviewees were based or whether they regarded themselves as 'football fans' or not. They were certainly not comfortable with the idea that FBOs should be the norm upon conviction for all football-related offences:

"There's a distinction to be drawn between people who are involved in football clearly for the purpose of causing violence...and the majority of cases which tend to involve generally law-abiding people who've had a little too much to drink and have started behaving in a silly, childish way and done things they'd never do sober or if they weren't at the football. These people probably learn their lesson by being hauled before the court with a conviction for sectarian-aggravated breach of the peace or whatever...I don't think they necessarily require to have the full force of an FBO imposed on them." (Sheriff 2)

"Banning Orders are a fairly Draconian response to what is pretty low-level stuff - sectarian chants, verbal abuse. I think they are too high up the scale unless that person has a history (of previous convictions)." (Sheriff 3)


28 July 2011

WANTED: One second-hand Justice...

... not too worn about the edges; with decent knowledge of law and a presentable appearance. Applicants who do not suit their perukes welcomed. Comprehensibility to those from the south of England essential. Admittedly, the UK Supreme Court hasn't quite couched its advertisement in these terms, but it has solicited applications for two judgeships in the Court. The first vacancy is immediate, caused by the untimely death of the former Lord President of the Court of Session, Lord Rodger. The second seat becomes available in April 2012, when Lord Brown - who missed his profession as a cantankerous Napoleonic-era admiral - retires.  As the Court's advertisement recognises...

By convention there have for some years always been two Scottish Law Lords; and subsequently Justices of the Supreme Court. Lord Hope is currently the only Justice from Scotland. In making its recommendations the selection commission will have regard to the requirement under section 27(8) of the [Constitutional Reform] Act [2005] to “ensure that between them the Judges will have knowledge of, and experience of practice in, the law of each part of the United Kingdom.”

While Lord McCluskey's Group are mooting whether it would be valuable for have a majority of Scots to sit on the UK Supreme Court bench when dealing with Scottish cases (which would, in most cases, call for three Scots to sit on the UK Court rather than the convention two referenced here), it seems profoundly unlikely this selection process will see two extra Scots added to the Court.  So who decides who gets appointed? The selection commission consists of the UK Court's President - Lord Phillips; his deputy, Lord Hope - and a man each from the judicial appointments boards of Norn Iron, England and Wales and Scotland.  The latter is represented by their chairman, Sir Muir Russell, classic Establishment bod and former Scottish Executive civil servant who rode the public sector carousel into the principalship of the University of Glasgow. This cosy band of jurisprudes will be seeking out souls that fit the following criteria:

Criteria for appointment
The cases dealt with by the Supreme Court include the most complex in the courts of the United Kingdom and demand the deepest level of judicial knowledge and understanding, combined with the highest intellectual capacity. Successful candidates will have to demonstrate independence of mind and integrity and that they meet the criteria listed below TO AN EXCEPTIONAL DEGREE.
  • Knowledge and experience of the law.
  • Intellectual ability and interest in the law, with a significant capacity for analysing and exploring legal problems creatively and flexibly.
  • Clarity of thought and expression, reflected particularly in written work.
  • An ability to work under pressure and to produce work with reasonable expedition.
The successful candidates will also need to demonstrate the following qualities:
  • Social awareness and understanding of the contemporary world.
  • An ability to work with colleagues, respecting their views, but also being able to challenge and debate in a constructive way.
  • A willingness to participate in the wider representational role of a Supreme Court Justice, for example, delivering lectures, participating in conferences, and talking to students and other groups.
  • Vision, coupled with an appreciation of the role of the Court in contributing to the development of the law.
In considering these qualities, the commission will have regard to the background and experience of the candidates.

So, no room for the gormless, the lazy, the cryptic, the shy or the visually impaired. Bitter recrimination in argument is out too, along with those who cherish their judicial ignorance of contemporary mores - "And what sort of music did you say these coleoptera produce, counsel?"  Curiously, like juvenile would-be sodgers, successful applicants may also have to submit to medical as well as professional examination to ensure they are fit for judicial duty.  So who will get the jobs? And specifically, which Scots lawyer will take up Rodger's death-deprived chair? In the Guardian yesterday, legal journo Joshua Rozenberg echoed my early prediction that Court of Session judge Lord Reed. Very unusually appointed to the Court of Session in his early forties, Reed has a doctorate from the University of Oxford, is now only 54 years of age and sat ad hoc on the UK Supreme Court in the as-yet undecided case of AXA General Insurers & Ors v. Lord Advocate. It remains to be seen whether the body of insurers will succeed in challenging the legislative competence of Holyrood's pleural plaques legislation. Writes Rozenberg...

"Reed is the firm favourite. Before his promotion to the appeal court, he was Scotland's senior commercial judge. As an advocate, he practised public law and European law. He look a DPhil at Balliol and was also called to the English bar. In 1999, Reed sat at the European Court of Human Rights as one of a panel that heard appeals by Robert Thompson and Jon Venables..."

In these hallowed digital pages, Lord Reed was noted for his mercy to the gun-possessing granny from Dundee, Gail Cochrane. Despite the dissent of Lord Marnoch, Reed released Cochrane from the utterly unnecessary, nimious five-year mandatory minimum sentence to which the Firearms Act 1968 would have consigned her.  Reed has also composed a tome, A Guide to Human Rights Law in Scotland. In an earlier post, I suggested that it would be a crashing shame if one of the few Scottish judges with a particular interest in human rights law should depart to London and spend much of his time hearing English appeals. I stand by that. Justiciary and the Session can ill-afford to lose folk like Lord Reed to southern climes. Although I'm sure he would serve gallantly on the UK bench and hand down judgments I might sympathise with in contentious Scots cases, I'm far from convinced that the overall effect of his elevation would be salutary for Scots jurisprudence. In point of fact, the successful candidate need not already be a judge. Earlier this year, Jonathan Sumption QC was elevated to the UK Supreme Court bench straight from the English Bar, although I believe he is still polishing off old cases, and has not yet assumed his judicial role. So, if there are any ambitious and qualified amongst you, not disqualified on grounds of ancientness, youth, folly or injustice - applications close at 5pm on Monday 19th of September...

26 July 2011

Pete Wishart's British nationalist logic...

Kenny Farquharson's column in the Scotland on Sunday a few weekends back, "Britishness is about pop and fish and chips", sent a small disputatious eddy through the puddle of the Scottish blogosphere. On Twitter, Kenny told us that he'd been contacted by an SNP MSP from one of Holyrood's past sessions - identity discreetly undisclosed - whose crisp response to his argument was "A first rate column. Hits it on the head." The essence of Kenny's argument is that...

"The emotional power of this alternative definition of Britishness is a problem for the SNP. Because the Nationalists now make a very strict distinction between the 'social' Union (a good thing) and the 'political' Union (a bad thing). Increasingly, the fight for Scottish independence rests on the SNP's ability to drive a wedge between these two aspects of Britishness, to persuade Scots they can have the social Union in all its warmth and richness, and still live in an politically independent Scotland. That's a tall order, because the referendum on independence is not going to be a coldly analytical argument about constitutions - it will be a tug-of-war of emotions, identities and loyalties. And the SNP cannot bring innate Scots patriotism into play without also allowing the innate sense of British belonging. Here's to a fascinating voyage of self-discovery."

I'd guess that this piece from SNP MP Pete Wishart, writing for Better Nation, "Proud to be British in an independent Scotland" , was at least half provoked by the Scotland on Sunday article. Wishart notes...

"Probably one of the most passionate debates we’re going to have in the run up to the referendum will be around the whole idea of identity and Britishness. Like many proud nationalists I have struggled with the idea of being British and have never described myself as such. But what will happen to the whole concept as Scotland moves towards independence and can the idea make a comeback and even become respectable in nationalist circles?"

Pete's piece has prompted a further response from David Torrance at the same site. I wanted briefly to pick up an aspect none of these pieces explicitly addresses, but which finds resonances in all three. The question: nationalism, so what? Kenny is undoubtedly correct that how the debate on any independence referendum is framed will be terrifically important. In his way, he contributes one version. To distil the view articulated...

Britishness is about inchoate togetherness, in a complex composite identity. While the contents of Britishness may be contested, and even less than programmatically articulated and imagined, the link is the thing. It is no answer to someone voting against independence on the grounds of British affinities, to demand a fulsome definition of their Britishness from them, and to crow when they stammer and struggle to articulate a developed account of their identities. Critically, for those who feel this soft solidarity, and who would vote to retain the Union, (1) these British nationalist sensibilities are taken necessarily to entail (2) participation in the political structures of the British State. Coupled nation (Britishness)-state (UK) relations are presupposed.

One of the fascinating aspects of this sort of position is the deep affinity it has with certain modes of Scottish nationalist argument - and its deep paradoxes in the context of Britain. A familiar Scottish nationalist contention is that the "natural" state of nations is self-government, and that Scotland is in some respect malformed or unnaturally decapitated, a nation without a nation's lineaments, and half mad from the lack of them.  Premised on this general theory of nationalism, many nationalists simply see themselves agents working to escape the paradoxes of Scotland's "stateless nation". By their political endeavours, and by dissolving the Union, Nationalists are striving to suspend Scotland's place on the eccentric periphery of nation-states (particularly European nation-states) and by achieving a general alignment: Scottish nation-Scottish state. Folk who think along these lines tend to have an interest in other nations, contemporary and historical, and their parallel attempts to join the society of states recognised by international law.

If nationalism should entail an integration of nation and state, as this version of Scottish nationalism wants to argue, what to make of Britain? One immediate, easy and very unconvincing answer to this would be to say that Britishness is not a national identity at all, ergo it entails nothing in terms of political configurations. On this view, my Scottish nationalism simply entails that we should be independent; your commitment to ideas of Britishness entails nothing at all.  It is at best false consciousness, a historical distortion or similar ideological villainy. The immediate question is, why not? What distinguishes apprehensions of Britishness and Scottishness so strongly, that one is the "natural" foundation for separate sovereignty, and the other can be so handily and casually dismissed?

Answering this question isn't immediately straightforward, however, it does move us toward the question I posed at the outset: nationalism, so what? One of the big problems is that Nationalist folk minded to make this sort of argument tend to subjectively disavow or reject British identities themselves. They are simply reporting their own indifference to its claims and their incomprehension about how and why others feel moved by concepts associated with Britishness. For some, this shades into outright hostility. I can sympathise with this view myself. For me, Britishness is a concept from which I've never been able to extract much juice. It has never really had any substantial affective content for me and, living in England as I do, I have never found the want of it to be any barrier to warm and convivial relations with the locals.  However, I know a number of Scots who feel differently and who find Britishness not only to be meaningful, but who are skeptical of independence and whose political practice is eminently likely to be informed by the sort of argument adduced by Kenny in the Scotland on Sunday.

What strikes me as entertaining, and paradoxical in its way, is that Kenny's Straw Briton and the Straw Nationalist I'm imagining actually share a basic proposition: the respective nationalisms they articulate have straightforward implications for statehood. If I enjoy a fish supper, and it resonates as a greasy symbol of British solidarity, I'm bound to support the continued jurisdiction of Westminster. As James Kelly notes in a brief but interesting aside...

"I'm not surprised Pete Wishart's article on how Britishness may well survive and flourish after Scottish independence has provoked such an instant reaction. After all, it strikes at the very heart of one of the articles of faith of unionism, namely that while a dual Scottish/British identity is possible within the context of union, somehow the prospect of independence forces people to choose."

However, this is a particularly strange proposition baldly to advance in the context of the United Kingdom today. One of the key grounding logics of the contemporary British state is that different national identities need not, per se, furnish the foundation of the state. English, Welsh, Northern Irish and Scottish - the British contention must be that these national identities need not and should not determine the political structures we adopt. State need not align with nation. Paradoxically, the key appeal of Kenny's mushy pea British nationalism is the belief that the emotional power of British identities should entail an alignment between nation (in this case, Britain, a non-exclusive meta-nationality encompassing England, Scotland etcetera) and the state (the United Kingdom). The irony of this is that Britain is itself basically predicated on abnegating just such a general alignment. For the United Kingdom to flourish as a political unit, national identities within Britain resolutely must not entail a political alignment between nation and state.

This approach isn't abstract or eccentric. It is still alive and well, its central assumptions eminently detectable in current day political debates on Scotland's future. Contemporary mainstream Unionism does not deny Scottish nationhood and Scots rights to self-determination as a "people" are very broadly recognised in UK politics, even by the inveterately hostile. However, Unionists are apt at this point to refer you to beneficial outcomes and securities they attribute to membership of the Union, including militarily, financial, "influence in the world" - and so on.  Calculations about utility maximisation, access to funds, management of risk - are set beside these admitted national identities and collective affinities, presented as commingling reasons to consider maintaining our curious separation between nations and state.  The central contention rebutted by all of this is that nationhood must entail statehood. It need not, say the Unionists. And as a matter of contingent historical fact, they must be right.

In some respects, we can see Pete Wishart's argument as an extension of this to the nationalist side, a parallel move applying a little British logic to Kenny Farquharson's fizzy Brit pop. As I noted above, many nationalists find Britishness a very problematic - and even unattractive - concept. Scottish nationalism, for those minded that way, is about escaping Britishness and the British state as much as anything else. However, I have no reserve in recognising that for most of the Scots population, Britishness is not invested with such negativity - and for many, it may be positive if vague in its connotations.  Wishart's point, as I understand him, is precisely that the SNP's case is for a very British decoupling of nation-state identities. At present, Unionists can say, certainly you are Scots, but why not continue to participate in the state of the United Kingdom for reasons x, y and z? Wishart's corresponding proposition is absolutely, you may feel British, but why should that determine the shape of our political institutions and their ability to decide x, y and z for ourselves? Iain Gray might find the structure of this argument "bizarre", but curiously, it really is not so different to the arguments articulated by his fellow Unionists, against the idea that Scottish nationalism unerringly commits you to a distinct Scottish nation-state.

23 July 2011

Leveson LJ's "objective appearance of impartiality"...

Remember Robbie the Pict's crusade against the Speculative Society? In 1998, Robbie was convicted in Dingwall Sheriff Court for non-payment of the £5.70 toll on the Skye road bridge, now suspended. The Pict subsequently petitioned the nobile officium - the equitable jurisdiction of the High Court to afford extraordinary remedies - and in the third of his preliminary objections to the constitution of the court in his second petition, he complained that Lord Osborne was a member of the Speculative Society of Edinburgh, and as such, should not be permitted to sit in judgment in his case. As Lord Justice Clerk Gill narrated in 2003...

"The Speculative Society, according to the petitioner, is a closed debating society that has been described in its own literature as a secret sodality and a brotherhood bound by intangible ties of shared loyalty and common tradition. According to the petitioner, each member of the Society has a personal four-digit number and signs a members' roll. The secrecy of the members was, he submitted, similar to that of freemasons. For a better understanding of the matter, the petitioner invited us to read the History of the Speculative Society (1968), to which Lord Osborne contributed a chapter. The petitioner further submitted that in a series of judgments relating to the Skye Bridge tolls, 12 out of 14 involved the participation of judges who are members of the Speculative Society. He said that there was widespread public disquiet about the influence of the Speculative Society amongst the judiciary. He referred to recent media comments on the subject. He submitted that in this case, as in numerous previous cases, there was an appearance of bias, actual or potential."

Gill was, quite rightly, concerned with "the objective appearance of impartiality", reconvening a differently constituted bench of the High Court to decide the issue, none of whom were members of the Society.  The Pict's line of argument made a significant press splash at the time, reinforcing representations of the Scots legal Establishment as a suspect and reactionary class, dominated by the tedious and the affected. I've treated this topic in greater length in Scotland's coelocanth, the legal establishment.  Other details about the Speculative Society contributed to the effect. Their reported archaisms, disdaining to avail themselves of electricity in their rooms in Old College; their exclusion of women; the prospect of interminable marble-mouthed speeches, each dreary drollery prompting port-soaked guffaws and claret cackles from the assembled jurisprudes. At the time, the Scottish Legal Action Group acidly observed:

"... the Speculative Society meetings are, in the main, reactionary gatherings of over-privileged, idiot, boy students who enjoy pompous role playing. In this guise it is no more a threat to democracy and justice than other self-indulgent antics found among a minority of yahoo students at many universities."

That said, the published list of members admitted to the Society between 1947 - 2002 includes a great many high profile names in the legal world, past and present, including the current Lord President, Arthur Hamilton. Past members of the Society include Sir Walter Scott and Robert Louis Stevenson.  Safe to say, you won't find my name on there, but while I was at Edinburgh University, I was approached about the society, but declined to take any interest. I'm given to understand that the Speculators continue to hold their meetings under the nose of the majority of Edinburgh's law students - who are now overwhelmingly women. I suspect most students would be surprised to discover that such a body still congregates and attracts a congregation in contemporary Scotland.  In his disposal of Robbie the Pict's application, Lord Gill afforded this insight into how the Society selects its creatures, based on an affidavit from one of the Society's office bearers:

"The society is a society for young men. According to the affidavit, the Society can have no more than 30 ordinary members at any time. Membership is gained by invitation and is subject to voting by secret ballot. The rules provide for a procedure of black-balling. When a member joins, he joins as an ordinary member for a period of three years. There is nothing in the rules to prohibit female membership, but there are no female members and there have never been any."

In the final analysis, Robbie the Pict was to be disappointed, but the gently wry quality of Lord Gill's judgment is pleasing for those, like me, who find the reported mores of the Society immediately distasteful, particularly its exclusion of women, its sticky homosociability, the stuffy, clubby selectivity. Gill held...

"On the information before us, we conclude that the Society is never secret nor sinister and that it simply makes its own refined contribution to the public stock of harmless pleasure. It appears to be careful in its choice of members, but many societies are. Those elected are no doubt happy to be members. Others will be happy not to be. Live and let live is a useful principle in such matters."

This issue of judges maintaining an objective appearance of impartiality was summoned back to mind this morning by disclosures about Cameron's appointee to lead the public inquiry into phone hacking. Further to an article in the Telegraph, which reports that Lord Justice Leveson has attended parties at the house of Rupert Murdoch's son in law, fellow Scot and English lawyer Charon QC writes that...

"In the present climate – I am surprised that the Prime Minister, aware of the minor connection between Lord Justice Leveson and the Murdochs as reported in The Telegraph – thought it fitting that Leveson LJ should head the inquiry.  I am sure that Leveson LJ would be impartial.  He is highly regarded.  But on this very complex and emotive issue of #Hackgate – it is surprising (a) that this story was not announced at the time Leveson LJ was appointed and, frankly, (b) that Leveson LJ was appointed, and (c) accepted the appointment."

I agree. Without impugning the integrity of Leveson in any way, it is bizarre that David Cameron didn't pause and seek out some other judge, any other qualified judge, without a scintilla of contact with the extended Murdoch clan and their dubious hospitality. Early on in the developing scandal, Simon Hughes appeared on Newsnight, arguing that the selection of the judge to conduct any independent investigation would need to be very sensitive, ensuring that any judge selected didn't paddle in the same social pool as those they are investigating. Hughes particularly mentioned senior police officers and masonic lodges - but we needn't stretch our imaginations too far to imagine other sites in which senior judges, based in London, might find themselves fraternising with prominent figures from the press and the police. 

Like Robbie the Pict's case, the issue is one of the objective appearance of impartiality, which is clearly potentially compromised when the judge moves in the social milieu as the journalists, executives and officers they are examining. On twitter and in a comment after an article by David Allen Green at the beginning of July, I asked - why not appoint a Scottish judge to lead the inquiry? This wasn't intended as rank Scots legal nationalism, nor as a slight to the many upright Daniels on the English Bench who could do the inquiry justice - but specifically to address the point raised by Hughes. The physical and social distance between Edinburgh and London, I suggested, would rapidly foreclose any fears about the inquiring judge's social connections and knowledge of those being investigated. Senators of the College of Justice do not, in general, swim in London's social pond. Also, a certain douce, precise Scots air might have been just what an inflammatory inquiry into such seedy activities needs. Given today's disclosures about Leveson's wee drinkie with the Freuds, and assuming the details ennumerated by the Telegraph are accurate, this is precisely the sort of compromising connection which Simon Hughes was so concerned about. Much more baffling is cloth-eared Cameron's decision to appoint Leveson, in full knowledge of his links and drinks. Charon QC argues that Leveson should recuse himself.  Perhaps it is time to "activate" - Lord Justice Clerk Gill?

21 July 2011

Lapdancing in Court!

A very significant decision from the Court of Session this week in Brightcrew Ltd v. the City of Glasgow Licensing Board, on the subject of lap-dancing. Or more precisely, the extent to which such establishments can be regulated by alcohol Licensing Boards across the country.  Although the vires powers of a public body may not immediately set political hearts racing, it is important to understand this judgment in its context, and the uses to which Glasgow attempted - in the event unsuccessfully - to put its alcohol licensing powers. The Council's general view is that “lap-dancing is a form of sexual exploitation which degrades women and encourages their objectification by men.” While Glasgow's Licensing Board is an independent regulatory body, it is constituted by eight city councillors. Without attempting to distort their approach, essentially Glasgow City Council attempted to use its alcohol licensing powers to try to control - and exclude - lap-dancing clubs from the city.  In support of this approach, a non-statutory Code of Practice was promulgated, with extensive provisions with respect to adult entertainment in licensed premises. This document is not published, but is substantially spoken to in the Board's long Liquor Licensing Policy Statement. Section eleven of the statement narrates a number of strictures to obtain in licensed premises laying on adult entertainment, noting that:

"The Board believes that in premises where the sale of alcohol is combined with adult entertainment, which is designed to be sexually explicit and therefore, potentially, involves a higher degree of risk to both customers and performers than in some other types of licensed premises, it is entitled to regulate that particular activity by way of licence conditions ... in terms of the Licensing Objectives of Securing Public Safety and Improving Public Health."

By withholding alcohol licences, the Board clearly hoped that the proprietors of such clubs would become financially unsustainable - presumably lager-breathed men in a crumbled suits require sustained alcoholic refreshment to accompany gyrating female nudity - and so close their doors and clear their stages. The specific club at issue in the case was "Spearmint Rhino", situated on the city's Drury Street.  Glasgow's Licensing Board refused the licences on the 15th of May 2009. The Board's powers to grant or refuse "premises licences" for the sale of alcohol are governed by the Licensing (Scotland) Act 2005Section 23 of the Act sets down how such applications are to be determined, including grounds for refusal. Basically, if none of the grounds for refusal are present, the Board must grant the licence and if any grounds for refusal are present, they must reject the application. The statute does not afford the body any residual discretion to supplement the list of grounds, however, some of the standards they are directed to apply are clearly of a more discretionary character. These include a ground of refusal, where the Board...

"(c) that the Licensing Board considers that the granting of the application would be inconsistent with one or more of the licensing objectives" [2005 Act §23(5)(c)]


(d) "... having regard to—
(i) the nature of the activities proposed to be carried on in the subject premises,
(ii) the location, character and condition of the premises, and
(iii) the persons likely to frequent the premises,
the Board considers that the premises are unsuitable for use for the sale of alcohol..." [2005 Act §23(5)(d)]

The relevant licensing objectives are set out in §4 of the Act...

The licensing objectives

(1) For the purposes of this Act, the licensing objectives are—
(a) preventing crime and disorder,
(b) securing public safety,
(c) preventing public nuisance,
(d) protecting and improving public health, and
(e) protecting children from harm.

In line with the claims made by their Licensing Policy Statement, the Board rejected Spearmint Rhino's licence application on the basis that they were protecting and improving public health and preventing crime and disorder. They also held that the premises were unsuitable for the sale of alcohol. Here, the Court of Session only had to decide on the first of these grounds for rejecting the club's application, the issue under §25(5)(d) having been resolved at the shrieval level. The matter was set before Lords Eassie, Clarke and Wheatley to determine.

The Board based its decision on Spearmint Rhino's application on breaches of its non-statutory Code of Practice, including risk assessments concerning (i) hazards faced by dancers in such establishments; (ii)  flyers distributed by the club, which must include "no exposure of breasts or genitalia", a condition which the Board believed the club had breached; (iii) drinks promotions; (iv) reported physical contact between dancers and "patrons" and (v) dancers shedding all of their clothes, contrary to the requirements set out in the Board's code. As an aside, an anthropologically curious detail. Apparently Edinburgh's "pubic triangle" is governed by different rules of propriety than Glasgow. Under this heading, a Glaswegian licensing official alleged that that they had spotted two dancers in the club who had "removed their lower garments to knee level thereby exposing the genital area". Lord Eassie primly narrates...

"It was explained to the Board at its meeting that the two ladies in question were engaged only for that evening; that they were told at a "briefing" to retain their bikini bottoms; but they were accustomed to different practice in Edinburgh, whence they came." [para 9]

There are some questions about whether particular instances complained of were evidenced or without foundation - we need not get into them. The Board contended that, taken together, these breaches of its non-statutory Code justified its refusal to grant Spearmint Rhino a liquor licence, under the licensing objectives set out in the 2005 Act.

For the club's proprietors, jaunty wig-wearer and Dean of the Faculty of Advocates, Richard Keen QC, argued that the Board's function was limited to the sale of alcohol and that...

"...the generality of the objectives described in the 2005 Act as licensing objectives - such as "protecting and improving public health" - did not give to a licensing board, properly exercising its function ... power to lay down conditions, however desirable those conditions might be seen, which were not linked to the selling of alcohol".

Ever one for a picturesque metaphor and telling comparison, Keen argued that on the Board's logic, it would be entitled to deny pubs licences for the sale of alcohol, if they refused to accompany every plate of pie and chips sold with a delightful and healthy salad, better to trim the waists of the nation and thereby "protect and improve public health". No so he contended. Regulating lap-dancing via alcohol licensing, analogous to mandatory cucumber-provision in hostelries, proceeds on a "misconception of the proper ambit and use" of the Board's powers. As Keen's opponent, Sarah Wolffe QC recognised, the Dean's approach was a "full frontal" attack on the powers and practice of the Glasgow Board. And that full frontal assault carried the day and persuaded the Court. Giving judgment, Lord Eassie held that...

"...while the [licensing] objectives so catalogued are couched in very general terms such as "preventing crime and disorder", it is important to note that those objectives are not, so to speak, "freestanding". They are qualified by the introductory reference to their being "licensing" objectives. Since the licensing with which they statute is concerned is the licensing of alcohol, it follows in our view that, in the context of section 23(5)(c) of the statute, inconsistency with a licensing objective is inconsistency flowing from permitting of the sale of alcohol on the premises in question. The fact that the objectives listed in section 4 of the 2005 Act are all desirable in a general sense does not empower a licensing board to insist on matters which, while perhaps unquestionably desirable in that sense, are nevertheless not linked to the sale of alcohol." [para 26]

Basically, this means that the Glasgow Board's attempts to use its powers to grant alcohol licences creatively to regulate the activities of lap-dancing establishments in the city - has comprehensively miscarried and cannot continue. Despite past practice, the Court of Session has held that their code is, bluntly, irrelevant to the question of whether or not a premises licence ought to be granted to an applicant, whether or not their establishment includes adult entertainment. Instead, in each instance, the Board would have to demonstrate how an infraction of their non-statutory code actually relates to the sale of alcohol. Take the flyers. As Eassie notes in typically circumspect and circumlocutory judicial style...

"... while it may be that on a close examination of the offending flyer an observer might conclude that the artist had not plainly demonstrated the presence of a garment covering the breasts of the two ladies whom he depicted with the consequence that there was thus, in the view of the Board, a breach of their code of practice, it is not evident, and is not explained by the Board why that incident can properly be said to make the sale of alcohol at the premises inconsistent with a licensing objective." [para 28]

This decision will undoubtedly leave the Board and the rest of Glasgow City Council fuming, as it substantially narrows the powers they thought and purported to wield. While the Board may now encourage clubs like Spearmint Rhino to make provision for the sanitation of their employees, and encourage or deprecate some forms of adult "performance" - insofar as these strictures do not speak to the issue of alcohol - they are irrelevant to the issue of determining whether a liquor license is granted or withheld. Having hoped to use the threat of denial of a licence as the stick to regulate how lap dancing clubs comport themselves with respect to their employees and how their employees ought to conduct themselves with respect to their ogling public - the Board finds itself not just disarmed, but its regulatory stick comprehensively broken across the knees of the Court of Session by Keen's argument.

18 July 2011

Does Scotland need its own Operation Motorman?

Last week, Love and Garbage composed a post provocatively entitled "Salmond's failure on press regulation".  The Maximum Eck has issued the following trimming pronouncement on the ongoing hacking scandal...

“What has surfaced this week is the huge controversy over the total, abject failure to regulate the press in any effective way. We now know that the information commissioner presented evidence in November  2006 covering our major publications – thousands of instances of potential breaches of the law – and yet the Westminster government did absolutely nothing to bring the range of houses into order.”

Salmond presents us with an image of the virtuous devolved authority, faces writ with concern, looking on as Westminster authorities did sod all. It's beyond my control, it says, with a sorrowful shrug.  It wisnae me, he implies, and on press regulation suggests - or near as damn it - that the SNP would haven regulated differently, but couldn't, so didn't. You can almost hear the distant refrain our opponents find so tiresome ~ "in an independent Scotland..." In fact, in terms of Scottish press regulation, the proper formulation is that the SNP could have done something and didn't - in large part because like (almost) everybody else, the party wasn't wildly interested in the Information Commissioner's (2006) report What price privacy? The Unlawful trade in confidential personal information and the follow-up six months later, What price privacy now? To imply otherwise is understandable but clearly dexterous positioning in the prevailing political atmosphere.
There are number of dimensions to this. Firstly, the devolution settlement. Is press regulation within Holyrood (and thus the SNP's) powers or not? Secondly, what does it tell us that most folk (even one suspects in the parliament) might be surprised to discover the answer to my first question is yes? Thirdly, what are the implications of Holyrood's freedom to act here? What actions might it consider taking, and why?

Can Holyrood regulate the press?

Firstly, the issue of powers. Nobody expects the SNP to regulate Fleet Street, but what about Scottish titles and their journalists? For reasons Love and Garbage clearly outlines, from a Scottish perspective, for Salmond to take a tackety-boot to the Westminster Parliament is misleading and none-too-subtly self-serving...

"Salmond has been the First Minister of Scotland for the past 4 and a bit years. The government he has led, and leads, can act within the powers set out by the Scotland Act 1998. At times the government has suggested legislation that some of us feel push the boundaries of legislative competence. So proposing to act outwith competence does not usually hamper Mr Salmond and his party. However, on this topic press regulation is firmly within the competence of the Scottish Parliament.

The issues on which the Scottish Parliament (and Scottish government) cannot act are broadly set out in Schedule 5 to the Scotland Act 1998, which includes a reservation in relation to certain topics regarding culture and the media in Head K. The reservations include broadcasting, public lending right, a government indemnity scheme, and tax related transfers of national heritage. The press and regulation of the press does not appear in Head K. Regulation of the press does not appear anywhere in Schedule 5. This is a devolved topic. And if the SNP government had the will to do anything about the potential implications of press behaviour in Scotland after Operation Motorman they – and not Westminster – could have acted. In fact if Westminster had acted across the Uk the Scottish Parliament would have required to pass a Sewel motion to assent to Westminster dealing with devolved territory."

This analysis must be correct. Unlike Wales, the Scotland Act 1998 is structured by the explicit reservation of powers, rather than explicitly granting them. Thus climate change fell within Holyrood's purview, as it was not explicitly reserved to Westminster under Schedule 5, which sets out the list of reserved matters beyond Holyrood's competence. Some of these have a clear purchase on the political consciousness. For instance, the defence of the realm [Schedule 5, Part 1, s9] and international relations and foreign affairs [Schedule 5, Part 1, s7] - and curiously enough, treason [Schedule 5, Part 1, s10]. More specific reservations follow under a range of headings, from Misuse of Drugs to currency; immigration to firearms; betting, gaming and lotteries to consumer protection; time and space - and so on. The list is long and includes many profoundly important areas of public policy. However, it categorically does not include press regulation, though the Data Protection Act 1998 is reserved [Schedule 5, Part 2, sB2].

There is a wider point in all of this. If you are a sovereign parliament, there are still going to be complexities when drafting, scrutinising and enacting Bills. Existing statutory regimes are often fearfully knotty, some of them with difficult European Union law dimensions to be contended with and mammoth processes of consequential amendment. Legislation in Westminster is by no means easy.  However, its members and its government are at least mostly relieved of the difficulty of asking: is doing policy X within our powers at all? They enjoy a basic liberty of action. Not so, with Holyrood. To use a picturesque phrase sometimes deployed, the Scottish Parliament was not born free. The limits of the Scotland Act - and the way powers are implicitly granted rather than explicitly enumerated - call for a high level of legal sophistication if the full extent of the parliament's powers are to be understood. This can be particularly challenging if you stray outside the familiar, well-trodden areas of Holyrood legislation. Unfortunately, there are not many signs of such sophistication, either in the press, or on the benches of the parliament. 

Paradoxically, as with press regulation, this limited understanding of the full extent of the Scottish Parliament's existing powers results in an SNP government and parliamentarians treating issues which are within their powers as being concerns properly limited to Westminster only.  Alex Salmond issues statements of the sort quoted at the beginning of the piece, which leaves the profound but erroneous impression that he and his Ministers and the Scottish Parliament are fettered and tied. They can only sit back, pull constructive faces, demand better consultation with Westminster authorities - and wait for Sewel motions, which are passed on the nod. It is worth remembering what these legislative consent motions are all about. Conventional instruments rather than mandated by strict law, at their most basic, these motions are used where Westminster legislates concerning devolved matters. Although many pieces of legislation emerging from Westminster might concern commingled reserved and unreserved issues - when you see a Sewel Motion, the proposed Westminster Bill before you addresses, at least in part, devolved powers and consent is simply not solicited in areas reserved to the London Parliament.

Moreover, it is simply absurd to imagine that the SNP's masterly inactivity on press regulation in Scotland was a policy consciously adopted, better to cultivate the impression that Holyrood wants powers it should otherwise have - and that it would be a better custodian of those responsibilities than Westminster has proved. Salmond's response is one governed by events. And understandable it is too. Given the current predicament, for Scottish nationalists blessed with low animal cunning, it is an obvious calculation that it does the independence argument no harm to cultivate the impression that London is a new Babylon, whose public life, manners and creatures are degenerate, decadent and corrupt. No political benefit accrues from an honest response, which concedes that the party's attitudes to these matters is ultra-mundane at best.  However, as the Burd has reminded us this week, it is vital to keep in mind that amid the viscera-spilling in the British political sphere, Scotland is not excepted from the toxic soup of cronydom, elite capture and cosy corporate connections. Nationalists may be minded to rail against the British establishment of which they are resolutely not a part, however, that's no excuse not to give Scottish establishments their own rattle. It is a matter of taking sides in Scotland, as well as taking Scotland's side, as someone once said. 

Which brings me back to the Information Commissioner's reports in the light of Operation Motorman. The Commissioner's second document contains a breakdown of transactions showing the extent to which journalists from different media outfits had made unlawful bargains to secure private data about individuals who attracted their curiosity. The table is dominated by papers published on a UK wide basis (there is no separate record, for example, about the News of the World operation in Scotland), but includes the Daily Record, with 7 transactions where private information was unlawfully tafficked for by two Record employees. A number of other papers have (or had) Scottish wings. The Commissioner does not break down these confirmed transactions by jurisdiction, so it is impossible to say on the basis of the published data what "share" Scotland might have in the News of World's 228 positively identified transactions, nor for that matter any of the other papers (many of whom ratcheted up far, far more identified transactions than the defunct News of the World).

Scottish legal magazine The Firm have a poll on their site, asking, "Should a Scottish judge be appointed to inquire into the relations between media, Government and the police in Scotland?" Although those are hardly exacting terms of reference - and politicians of a particular stripe are unlikely to be happy about the including the government in this - prima facie, it seems to me that we do have good grounds to consider some sort of general and independent investigation of practices of the Scottish press and police in this area. The present turmoil in the press is, understandably, focussed on London and the metropolitan police, both as investigators and participants in unlawful escapades at the expense of the public. Given the apparent scope of hacking and blagging behaviours in the press (and not just the tabloid press), and the indeterminacy of the Commissioner's reports with respect to these things in Scotland, there seems to me to be no good reason at all blithely to assume that villainy respects the banks of the Tweed.

16 July 2011

Salmond's self-defeating legal defence?

This week, Scottish legal magazine The Firm referred to "the escalating" row about the UK Supreme Court's jurisdiction in Scottish criminal cases. I must say, this reads just a touch like wishful thinking to me. Although the controversy hasn't fizzled out, the altercation has lost much of its ad hominem heat, despite the best efforts of scallywag journalists to keep the embers glowing. Judicialisation of controversies is well-kent for its becalming tendencies. You may recall that, setting out their preliminary findings, the Review Group chaired by Lord McCluskey - and including Professor Neil Walker, Sir Gerald Gordon and Sheriff Charles Stoddard - concluded...

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.

As you will recall, this Group was set up by Alex Salmond, with the following terms of investigative reference...

"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 Review Group are now soliciting views from the public common, with a view to producing their final report by the autumn.  They pose the following quandaries...

1. Should the law be amended along the lines of our suggested amendment (4A) (see our report) to the new section 98A (added to the bill on June 22), so as to make it an essential pre-condition of an appeal to the Supreme Court in Scottish criminal cases that the High Court of Justiciary has granted a certificate that the case raises a point of law of general public importance?

2. If YES, to question 1, why? If NO to question 1. why not?

3. On the assumption that such a pre-condition were introduced into the legislation, should the High Court bench that decided the appeal in respect of which leave to appeal is sought be alone responsible for deciding the application(s) for leave and for the necessary certificate, or should there be a statutory requirement for that court to consult other High Court judges (How many?) on the question whether or not the case raises such a point of law?

4. Should leave/permission be automatically granted if the decision of the judges constituting the court that has decided the appeal is not unanimous?

5. Should the current Scotland Bill be amended to alter and re-define the jurisdiction of the Supreme Court in such cases in any of the following ways:

(a) by restricting appeals to the Supreme Court to cases which have been completed, i.e. the trial and appeal processes have been finished;

(b) (as an exception to (a)) by allowing the High Court of Justiciary at any earlier stage in the criminal process to invite the Supreme Court to answer a specific (preliminary) question as to whether or not a defined process or set of circumstances would constitute a violation of a 'Convention' right;

(c) by enabling the Supreme Court to give a binding ruling only on the point of law raised with the case then remitted to the High Court of Justiciary for further procedure;

(d) by empowering the Supreme Court to re-formulate the specific question before ruling on the matter.

6. Would there be value in providing, whether by legislation or by convention that the Supreme Court will sit in Scotland in Scottish cases and/or have a majority of Scots on the bench in such cases?

7. Is there anything that you would wish to add?

If you have any thoughts on any of these points you wish to bring to the Review Group's attention, you should send them to independentsupremecourtreview@scotland.gsi.gov.uk by the 12th of August. Question (6) will particularly catch the eye, since characterisation of the UK Supreme Court as a London-based institution has been a persistent feature of Alex Salmond and Kenny MacAskill's rhetoric in their criticisms of its jurisdiction. Somehow, I can't imagine that the UK Justices will be particularly keen to abandon their seat in Middlesex Guildhall and schlep north to conduct hearings on all Scottish appeals. Although McCluskey's group are primarily examining human rights based appeals from the High Court of Justiciary, we should remember that the UK court enjoys final jurisdiction in Scottish civil cases too, and any such convention that they convene in Edinburgh would affect those cases too. 

Secondly, I know a number of folk are sympathetic to the idea that there should be a majority of Scots judges in Scottish cases before the UK Court.  The fact that, at present, there is a ruling majority of English judges on Scottish cases - even if lead in judgment by an eminent Scottish jurist - was also particularly criticised by Alex Salmond and other Nationalist figures. The Constitutional Reform Act 2005 provides that there shall be 12 Justices of the UK Court [s23(2) 2005 Act], but there is nothing in the Court's founding statute which mandates a decreed number of judges from the different jurisdictions of the United Kingdom. At present, we've seen two judges trained in Scots Law sit permanently on the UK Supreme Court - Lord Hope, and till his recent untimely demise, Lord Rodger.  Since Lord Rodger's illness, other ad hoc Scottish judges from the Court of Session's Inner House have been drafted in to sit in his place [under s38(8) 2005 Act].   

Lord Reed joined them for the AXA General Insurance & Ors v. the Lord Advocate, which will determine whether Holyrood's pleural plaques Act falls within Holyrood's legislative competence.  More recently, Court of Session judge Lord Clarke sat beside the UK justices in further appeals cased on Cadder.  Such "acting judges" [s38] are appointed at the request of the President of the UK Supreme Court. As I understand it, at present, thus far such requests have been of a general character for a suitably qualified Scottish judge of the Inner House. Individuals have been nominated by the Lord President of the Court of Session.  Generally speaking, however, the UK Supreme Court sits in benches of five (for example, in Fraser), meaning that constituting a Scottish majority to hear our cases would require three judges are appointed to the UK Court on a permanent basis. However, in the as-yet undecided case of AXA Insurance, seven judges sat on the case, and to constitute a Scottish majority would require four judges.  Greater numbers of judges congregate around cases of greater controversy - and this is liable to be a recurring difficulty. 

For Scottish permanent representation on the Court to expand to three judges - a full quarter of the body's total composition - might leave some disappointed English jurisprudes rather miffed - and cause the eyes of the more ambitious Scottish judges, with an itch to live in London, to glister in prospect. Moreover, if McCluskey's proposition was fully and consistently taken up, you will still have the problem of how to constitute a Scottish majority in AXA-type cases when the UK bench overfloweth with seven or even nine judges. There seem to be two obvious solutions, though they are both problematic. Firstly, one could regularly draft in judges of the Inner House of the Court of Session as the case-load requires.  Depending on whether Scottish representation on the Court is expanded, however, it is easy to foresee circumstances where controversial and difficult cases on devolution issues (which we must remember, distinctively arise from devolution and thus won't generally concern English law) which would call for as many as two ad hoc Scots judges to be drafted in to constitute a majority.   

At present, the Inner House of the Court of Session (including the Lord Justice Clerk and Lord President) numbers 11 judges. If a case finds its way to the UK Supreme Court, we can expect at least three, if not five or even seven of these judges to have scrutinised and made judgment on the appeal already, and thus excluded from its final examination in the UK Court. If constituting a Scottish majority in the UK Court came to rely to a great extent on ad hoc temporary appointments, you rapidly start running out of Scottish judicial personnel (and remember, the stipulation that any acting judges sit in the Court of Sessions Inner House is not conventional, but is clearly inscribed in the 2005 statute). Moreover, if such came to be the practice, you might expect that the excluded English Justices of the UK Court could well come to regard the number of Session judges skulking about their chambers as an unsatisfactory usurpation of their functions. I'm the chuffing Supreme Court Justice, after all.  The infelicities of this position might encourage you to appoint still more Scots judges on a full time basis - say four rather than three. That too is likely to have its detractors if the total number of UK Justices continued to number only twelve. With four Scots on the bench, Scots lawyers would constitute a full third of the membership of the institution. A Union dividend for a choice band of Scots it might be, but is likely to be resented in other quarters. 

I too have profound concerns about the UK Supreme Court creaming off the particularly talented Scottish judges, demonstrating a particular interest and facility for constitutional interpretation and the testy task of adjudicating on fundamental rights. Surely a significant contributing factor to our difficulties in Scotland, and the problems with the High Court's analysis of human rights norms, has been the loss of just such Scottish judicial talent. As Robert Black QC noted after my piece on the topic...

"And it is tragic that two of the best Scottish judges of their generation (Lords Hope and Rodger) have to be transported to London (where most of their time is spent hearing English appeals) when they are so badly needed in Scotland."

It is for this reason that it'd be a crashing shame if, as some folk are anticipating, Lord Reed is appointed to replace Lord Rodger in the London Court. It is paradoxical but perfectly likely, that Salmond's rhetoric on the illegitimacy of the UK Supreme Court's English majority in Scots cases - which has generated this proposal from his Review Group - will actually strengthen the Scottish cohort in the UK Supreme Court at the signal expense of the High Court of Justiciary, who will lose its most talented members to beef up this UK institution. The irony that this should be the result of an explicitly Nationalist argument needs no further elucidation. I've argued before that one of the problems with the UK Supreme Court solution to the problems of human rights adjudication in Scotland is that it incubates the disorder rather than correcting it, deflecting our attention from the High Court of Justiciary's real limitations in this area. It'd be an exceedingly unhappy result, if Salmond's advocacy of the distinctiveness of Scottish legal institutions actually atrophied the very institutions he sought so hotly to defend.

13 July 2011

Cock-eyed Cochers cocks a snook...

Devolution is "a motorway without exit" to a separate Scottish state. So contended Tam Dalyell. I've long found the Telegraph's Alan Cochrane's lapses into this mode of thinking rather befuddling. What does a Unionist politics look like, if you subscribe to this sort of devolution determinism? If you are travelling on Dalyell's motorway - you may accelerate, decelerate - but cannot u-turn. Onward ever onward you vroom, however unwillingly, with no prospect of changing your direction of travel. Strictly speaking, I suspect he and others like him may well entertain fond dreams of flattening Holyrood and "repatriating" devolved powers to a restored Westminster - but for the foreseeable future, the engine has fallen out of that political project, leaving the old banger wheezing far back on the hard shoulder.  

Many - and I share their skepticism - would write off Dalyell's metaphor as whizz-bang rhetoric to underline his anti-devolution argument, rather than a serious sociological diagnosis that independence is rendered inevitable by the mere existence of a Scottish parliament. But for the black-hearted Unionist who does hold this curious deterministic position, the fatal moment has come and gone. The Union may not have gasped its last, but is certainly lying on its bed of death. Care at this point can only be palliative, all hopes of a cure perishing with the "yes" vote in the 1998 referendum.  For old time's sake, you may strive to keep the patient alive for as long as possible, deferring her dissolution by bloody-minded but purposeless interventions in public life. On this theory, Dalyell and Cochrane and their ilk are reduced to murmuring their Dylan Thomas - "Do not go gentle into that good night, Rage, rage against the dying of the light" - ever more world-wearily. As politics go, this is a macabre business. The perplexity and dissatisfactions of this position were called to mind, hearing Cochrane's response to a recent speech from John Major. The former Tory Prime Minister argued that ...

"Why not devolve all responsibilities except foreign policy, defence and management of the economy? Why not let Scotland have wider tax-raising powers to pay for their policies and, in return, abolish the present block grant settlement, reduce Scottish representation in the Commons, and cut the legislative burden at Westminster?"

Predictably enough, Cochers is appalled to hear such sentiments expressed by a man who once stoutly opposed devolution on the grounds that Scots were "sleepwalking towards independence" and that it represented "a stepping stone to separation".  On Newsnicht, Cochrane sputtered his astonishment: "I found this the most incredible intervention in recent years - months. For John Major to say this, is absolute havers." The BBC journalist who put the piece together styled Major's proposition "moving towards a weaker Union" - a profoundly problematic proposition, baldly to advance. Indeed, it is precisely the Union strengthening qualities of more radical devolved powers which is at issue between these conservative characters. For Major, and Darth Murdo Fraser - and as I understand him, David Torrance - the rationale for embracing a much more extensive, settled and federal devolution settlement is precisely that it will end the "unsustainable" situation we currently occupy, characterised by political instability and the slow "appeasement" of nationalist demands.  Baillie Bill Aitken's appeared in the same edition of Newsnicht, arguing that devolution is a process, not an event.  It is this endlessly parroted phrase that Major is seeking to expel from our political vocabulary, tying down the open ends of devolution into a settled federal structure.

For Cochrane, by contrast, the Calman Commission, Scotland Bill and prospect of much more extensive devolution of powers - are sops that enervate the Unionist soppers without soaking up Nationalist feeling. While I'm sure old Cochers does not count Maximilien Robespierre amongst his intellectual influences, his views echo a speech made by the latter in the Jacobin Club after the King's abortive Flight to Varennes in 1791. Said Robespierre:

"What frightens me is the very thing that seems to reassure everyone. And here I need to be listened to until the end. Once again, what frightens me is the very thing that seems to reassure everyone else: it’s that since this morning, all of our enemies speak the same language as us."

In Cochrane's case, the logic is precisely inverted. What concerns him is that his friends speak the same language as his enemies, not just conceding but adopting the Nationalist political logic of an ever-empowered Holyrood. For Cochers, they do Salmond's work for him and win no appreciable benefit for the Union in the process. For him, any concession is a defeat, weakening the Union. Victory is curbing Nationalist ambitions by bluntly telling us to sod off. For what it is worth, my own feeling is that Cochrane's response is quite wrong-headed and that Major's two propositions, while superficially contradictory, are not incompatible. It is perfectly plausible to hold (1) that you believe devolution is and was a "a stepping stone to separation" but (2) if voters reject argument (1) and you end up with devolution, preserving the Union may behove finding ways to stabilise the devolution settlement, to extinguish, or diminish the demands of self-determination.

Devolution was never just about relocating decision-making powers from institution A to new institution B after all. Politically, it doubtlessly empowered the SNP, transforming them from a very small handful of MPs in a very large House of Commons to a party of primary opposition, then minority government in 2007 and a majority in 2011. More broadly, it created the possibility of a distinct public sphere in Scottish politics around Holyrood. Although this outcome may not have been foreseen by those voting on the Scotland Act 1998, it ought to have been clear that devolution would displace Westminster's monopoly on "official" political life and fundamentally alter the character of - and in the short to medium term, strengthen - the SNP.  As a Unionist, one can conceiveably oppose the emergence of a distinct Scots political agora, and nevertheless recognise that once such a public space exists, think about ways to reconfigure the powers exercised by the institution and its creatures, better to serve your aim of preserving the Union. Cochrane, by contrast, seems to see no such distinctions.  Which, given his lapsing into the Dalyellesque logic discussed at the outset, is something of a curiosity.

Discussing the same topic of "the Conservatives, the Union, Scotland and the British State", Gerry Hassan notes...

"The Tories are moving on the union, doing what they do best, being pragmatic and conciliatory on the surface, while doing all they can to maintain the union which is central to their politics and identity, and just as crucially, maintain the bastardised nature of the British state. It won’t work, because constitutional change has consequences for the political centre, but don’t write off the Tories genius at reform to postpone more fundamental reform. They have been at it a rather long time." [My emphasis]

For what it is worth, I think Cochrane is right on the Calman process and the current Scotland Bill. It stabilises nothing and settles nothing. An unprincipled trimmer's expedient rather than a settling and principled architecture for the future, mute but determining, the Scotland Bill's rank ad hockery is fundamentally driven by a policy of preserving the political centre and tinkering with the periphery. Gerry is absolutely right. It is the reflexive, transforming implications of federation for the British political centre which will make it intolerable and unworkable. A federal politics requires a federal mindset that is basically incompatible with the Westminster status quo and its cherished constitutional nostrums.  Either the old pieties of the "pragmatic", sovereign constitution must yield, or federalism cannot prosper. Contra Dalyell, there is nothing inevitable about Scottish independence, once devolution is conceded. However, if independence is achieved, I'm convinced that it will be owed in no small part to the refusal of British politics to countenance its own transformation.

11 July 2011

"Humour is not without its place in the criminal courts..."

Unaccountably, the pickings from the Supreme Courts of Scotland have been remorselessly dry of late. No single mirthful judicial gewgaw have I spotted, to ease the tedium of unadorned legal analysis. No legal poetics on life's fankled untidiness, no sexual acts in Dundee cemeteries. Nowt. Nada. Zip. Dearth cannot last forever, and with Procurator Fiscal, Aberdeen v. Forrester, we have a cracker. The facts disclosed are rather bizarre. Thomas Forrester is a chief inspector of police in Aberdeen and at the time of the alleged offence, was head of Grampians road policing. The procurator fiscal charged him with dangerous driving under the Road Traffic Act 1988...

"The specification was that, on 26 November 2008 on the B977 Belhelvie to Dyce Road, he instructed Constable Ashley Forbes: (i) to activate the warning lights and sirens on the car in which they were both travelling; and (ii) to move the car into the offside lane, thus precipitating a collision between two cars travelling in the opposite direction. Constable Forbes was charged with the same offence, and ultimately convicted of careless driving, contrary to section 3. The respondent was also charged with wilful neglect of duty by failing to prevent the dangerous driving and not reporting the nature of the driving to the appellant."

The progress of Forrester's trial was hampered by delays. Seeking to come to some understanding of these delays, and eager to expedite proceedings, the sheriff called the lawyers into his chambers to discuss the case's progress.

"The [procurator fiscal] depute advised the sheriff that, amongst other witnesses remaining to be called, there were the police officers who had investigated the incident and ultimately interviewed the respondent. Upon hearing this, the sheriff remarked: "Oh! That will be the Gestapo!" Perhaps sensing that others may not have shared his sense of humour, the sheriff added "I didn't say that". No action followed immediately upon the sheriff's remark."

This choice piece of gay wit seems to have been discreetly ignored by the parties. Nobody likes to dwell on a failed jest, after all. Evidence progressed and the police witnesses who had interviewed Forrester appeared for the Crown. It transpired that their interrogation of Forrester ran almost unabated (there were two 20 minute breaks) for no less than four hours. Towards the end of this interview, amid protestations "of his strong ethical values and integrity and swearing on his daughters' lives that he had not done anything deliberate to put anyone in danger", Forrester "appeared to make an admission" capable of corroborating the evidence against him that was put before the judge. Subsequently, the presiding sheriff ruled this interview evidence to be inadmissible as unfairly obtained, holding that "the true object of the interview was to get the respondent to incriminate himself". This evidence being ruled out, there was no corroboration for the evidence adduced against Forrester - and the prosecution failed. Undeterred by this defeat, the Fiscal appealed, the Advocate-Depute arguing that the sheriff's Gestapo gag...

"... had it been overheard by the informed and independent observer, would have carried with it an inference of bias on the part of the sheriff. On being pressed on where that bias was directed, it was said that it was against the police instructed to carry out the investigation of the respondent's actions. Furthermore, the eventual decision of the sheriff on the admissibility of the interview disclosed that he had actually been biased."

According to Dorothy Bain QC, the sheriff's remark "had not been a joke, it had been an insult to the professional integrity of the officers about to give evidence." As such, because it "was in the public interest that trials were conducted in an independent and impartial manner and this had not been done", she invited to court to set aside the sheriff's decision.  Giving their judgment, Lord Carloway (joined by Lord Bonomy and Sheriff-Principal Lockhart) gave the Crown a classic understated judicial caning. Compared to the orotund prose of Judge Giovanni Bonello of the European Court of Human Rights, Carloway's remarks seem the very model of Scotch sobriety, more in sorrow than in anger.  As any Court of Session Kremlinologist would tell you, although ostensibly mild, the word "regrettable" should be read with a kick...

"An allegation that a judicial office holder is biased against the Crown, in the form of the local procurator fiscal, and investigating police officers is an extremely serious one. It should only be made where there is evidence to support it. Such evidence is not present in this case and the court is bound to comment that it is regrettable that the appellant appears to have lacked a sense of perspective in this matter. The court notes in this regard that the appellant's depute took no action at all in relation to the remark until after the sustaining of the respondent's submission. If the depute had seriously considered that the remark displayed bias, then she ought to have taken action at the time. Her failure to do so strongly suggests that no such bias was inferred and the court notes that the Advocate Depute did not submit that the appellant's depute had, in fact, so regarded the remark at any time."

Given the foregoing, it will come as no surprise that the bench refused the Crown's appeal. Giving their reasoning, Carloway offers us this splendid quotation from an earlier case, explaining the proper ambit of judicial drollery and Court clowning. The humorous golden mean for which any gentle shrieval revels should aim...

"In Wallace v Thomson 2009 SCCR 421, the sheriff had, in open court, made a flippant remark to a witness. This had prompted a ground of appeal concerning his assessment of credibility and reliability. This court said this:

"[18] Humour is not without its place in the criminal courts. No doubt, when used by a judge or sheriff, it requires to be used sparingly, with caution and not inappropriately. However, a Sheriff may consider that an element of levity might be temporarily introduced for a particular purpose; perhaps to put a nervous witness at his ease or to defuse a moment of unnecessary tension between procurators. No doubt, if the Court turned a trial into something akin to a comedy, an accused would have grounds of complaint were he to be convicted. Nothing of that kind has occurred in this case. The Sheriff appears to have made one flippant remark intended to be humorous. Perhaps it was; although it seems to have lost something in its translation to the printed page. The suggestion that an informed and reasonable observer would consider that this was an element demonstrating partiality is without foundation".

Very similar considerations apply in this case. The remark made by the sheriff was in chambers. It was not delivered in an open public forum. It was spontaneous and flippant. It may, or may not, have been regarded as humorous by those in chambers, even if, with hindsight, it cannot now be seen as either witty or appropriate. But the suggestion, which appeared to be implicit in the submission presented to the court, that the sheriff was actually comparing the behaviour of the Grampian police, in questioning a fellow police officer in Bucksburn police station, with the tactics of the Gestapo during the Second World War, must be dismissed as bordering on the ludicrous."

Everyone's a critic, eh?