30 March 2012

Rank local election wonkery: Glasgow City Council...

Seen as we've Scottish council elections coming up in a month and a bit, it seems appropriate to stray back into obsessive wonkish territory, and indulge ourselves in a closer squint at a) the election system Scotland will be using and b) a few choice examples of contested wards. 

You may recall that 2007 was the first local election to be conducted using the "single transferable vote" under the Local Governance (Scotland) Act 2004. Screwed out of Labour by the Liberal Democrats under their coalition agreement of 2003, the shift from first past the post to proportionate election of local authorities merrily buggered up Labour's councillor base in 2007. Although nationally, Labour took 590,085 first preferences votes to the SNP's 585,885, the net result was a loss of 161 Labour councillors, with the SNP gaining 182 - while the poor auld Liberals contrived to lose nine under their own STV scheme.

Just muse on this example. Under the first past the post poll in 2003, Labour won seventy one of seventy nine seats in Glasgow City chambers: a stonking 90% of the wards on 48% of the vote.  Come STV in 2007, and the party's 43% of first preference votes could only secure them 45 seats, representing 57% of the whole chamber. Twenty six of their councillors were evicted, and the SNP increased its representation in Glasgow from the three (!) councillors elected in 2003, to 23, under a more proportional procedure in 2007. Although going largely unappreciated and uncommented upon, this was a radical shift.  The SNP now have more MSPs representing Glaswegian constituencies than they had councillors in the city as recently as 2003.

Recent meditations on Labour's drubbing in 2011 and the party's prostrate subsequent politics have tended to emphasise Gray's lack of colour before and during the campaign, weak and unmemorable policy positions and a ramshackle national campaign dogged by hostile coverage. A nip back in time to the local results of 2007 suggest another vital factor. The evisceration of the party's councillor base in 2007 - potential locus for organisation and political vitality that they are - seems another important aspect which it would be remiss to neglect. 

So how does STV work in practice? Some of you may be well-aquent with the single transferable vote, and I dare say all of you know, from the resolutely practical perspective of the voter, how to construct a valid ballot paper. I thought it would be helpful - and potentially interesting - to explain with reference to a real world example how the allocation of seats functions.  For my object, I'll take the Pollokshields ward in Glasgow, where I cast my local ballot in 2007.

A few preliminaries. The Pollokshields allocation went through nine rounds in 2007, including two transfers of candidates' surpluses, six candidates excluded and the next preferences expressed on their ballots being transferred to the remaining candidates.  As you can appreciate, this can be lobe-rending stuff, which I cannot but condense a little, aiming at intelligibility. Those interested can see the full transfers and redistributions of surpluses for the ward here

Secondly, unlike first past the post, STV elects multi-member wards. The number of councillors elected per ward is either three or four, depending on regulations. In Pollokshields, three seats on the council were for the filling, and nine candidates put themselves forward: one each from the parties with MSPs in Holyrood - SNP, Labour, Liberals, Tories, Greens - two independents, and vying against one another at the bottom, a candidate apiece from Solidarity and the Scottish Socialist Party.  In the end, Labour, SNP and Tory candidates were elected - but third place was a close run thing.  After the elimination of the Liberal candidate in the eighth round (who by that time was trailing behind the Greens by around 300 votes), the Tory vote exceeded the Greens by just four and a few percentage pips, roughly rendered 1,839 to 1,835. Damn close run indeed.  In terms of first preferences, the 2007 vote in the ward was as follows:
Stage 1: First Preferences
Irfan Rabbani (Lab) 2,575 (26.92%)
Khalil Malik (SNP)  2,057 (21.5%)
David Meikle (Con) 1,435 (15%)
Ian Ruffell (Green) 1,043 (10.9%)
Isobel Nelson (Lib) 863 (9.02%)
Muhammad Shoaib (Ind) 592 (6.19%)
Karin Currie (Ind) 438 (4.58%)
Fatima Uygun (Solidarity) 380 (3.97%)
Ali Ashraf (SSP) 184 (1.92%)
So now what? In terms of allocating seats under STV, the most important concept is the quota.  In the Scottish system, this figure is reached by taking the total number of votes cast and dividing that number by the number of seats available + 1, and adding 1.  The quota remains the same throughout the "rounds" used to shuffle and reshuffle preferences. So, if 100 people voted in a ward, and four seats were to be allocated, the quota for election would be twenty votes.  In Pollokshields in 2007, the quota was 2,392 (9,567 (total turnout) ÷ 4 [3+1] +1). As you can see, Labour's (now the SNP's) Irfan Rabbani already exceeds the quota on the first round by 183 votes, and is accordingly elected Pollokshields' first councillor. If he had not achieved a sufficient level of support to be elected on the first round, we would have immediately proceeded to exclude the candidate achieving the lowest level of support, and redistributing next preferences among remaining candidates. Before we can crack on with eliminating candidates, however, there falls a necessary and modestly complicated interlude.

Transferring "surplus" votes
Here's where things get a little trickier. We have to transfer the surplus secured by Irfan Rabbani - who in this case, received 183 votes above the 2,393 threshold.  To do so is a multi-stage endeavour. Firstly, you have to take the whole body of ballots registering a first preference for the candidate with a surplus, and count up their second preferences. Remember, however, that we don't want to transfer all of Rabbani's second preference votes: only the 183 votes above the threshold. Although initially a bit mind bending, this is done in a simple enough fashion.  We calculate a "transfer value" to each ballot. Here, we do so by dividing the total number of surplus votes by the total number of votes the candidate with the surplus received.

To put this in numerically convenient terms, consider a contest where a candidate in a two-member ward is elected on first preferences. Say the quota for election is 900 votes, and Bob received 1,000 votes. His 100 vote surplus needs to be redistributed between his three competitors. Percival receives 70% of Bob's second preferences, Guthrie receives only 30% while Imelda garners none. Taking the total surplus and dividing that by Bob's total vote (100/1000), the transfer value of each surplus vote would be 0.1. Accordingly, Percival would receive 70 of the 100 surplus votes, Guthrie would receive 30, and Imelda none.  In the real world things aren't quite so neat, and we stray into the domain of figures with five-decimal points. To take Irfan Rabbani's surplus in Pollokshields, this worked out as 183 votes (Rabbani's surplus) ÷ 2,575 (Rabbani's total vote) giving us a "transfer value" for votes of 0.07106. Concretely, this means that every second preference vote on a Rabbani ballot is counted as 0.07106 of a vote, and is transferred to his competitors based on the number of second preferences they received.  

Stage 2: Transferring Rabbani's surplus

Irfan Rabbani (Lab) 2,575 (-183 votes)
Khalil Malik (SNP) 2,057 (+25.01312 votes)
David Meikle (Con) 1,435 (+10.09052 votes)
Ian Ruffell (Green) 1,043 (+17.97818 votes)
Isobel Nelson (Lib) 863 (+20.96270 votes)
Muhammad Shoaib (Ind) 592 (+13.50140 votes)
Karin Currie (Ind) 438 (+3.48194 votes)
Fatima Uygun (Solidarity) 380 (+8.17190 votes)
Ali Ashraf (SSP) 184 (+4.76102 votes)
Non transferable: 1112 (79.01872 votes)
Non transferable due to rounding: 0.02050

For those particularly interested in the politics of who transferred to who in Pollokshields, we can work back from these figures to make the following observations. About 43% of those giving their first preferences to Rabbani recorded no second preference and so didn't transfer votes to his competitors.  Of the remaining 57% of Rabbani's ballots, 13.7% listed the SNP candidate as second preference, 11.5% for the Liberal Democrat, 9.8% for the Greens and just 5.5% for the Tory, behind the 7.4% of the Labour candidate's transfers to the independent candidate, Muhammad Shoaib. You'll notice that even with Rabbani's transfers, no remaining candidate has achieved the quota of 2,393. Accordingly, we have to go on to the next stage of the process: eliminating the candidate with the smallest number of votes.

As an out of turn aside, when Kalil Malik (SNP) was elected in the seventh stage of calculating the Pollokshields vote, his surplus numbered 232.74834. While just over 50% of Malik's surplus would not transfer to the remaining candidates (explanations include a) Malik was his supporters' first and only preference; b) they had only indicated a preference for candidates already elected or c) who had been eliminated), of the half which did transfer, roughly 23% of next preferences went to the Greens, 17% to the Liberals and 9% to the Tories. 

Elimination and transfer

Back to the next stage of the process. In Pollokshields in 2007, the Scottish Socialist candidate received the smallest number of votes, resting on just 188.76102 votes after the transfer of the Labour candidate's surplus. He is now eliminated from the contest, and his ballot papers redistributed to their next recorded preference.  To be absolutely clear, the transferred ballots are only those of the eliminated candidate. For example, say a paradoxical socialist had put the SSP first and Tory second, the ballot would move to David Meikle's pile. And so on till all of the excluded candidate's ballots have been transferred to other candidates, or identified as untransferable.

Since he has already been elected, any second preferences for Rabbani are passed over, for the next preference candidate recorded, if any.  So far, so simple. But the transfers are complicated somewhat by the legacy of transferring Rabbani's (and any previously elected candidate's) surplus. Remember, the SSP candidate gained 4.76102 votes from Rabbani's surplus, in addition to those second preferences, recorded on ballots. Practically, the rule is that ballots carry whatever "transfer value" they currently have, over to the candidate they are transferred to. The candidates with the lowest number of votes are eliminated, one after the other, until a candidate achieves the quota, their ballots and surplus votes then cascading across the field of remaining candidates according to voter preferences.

I don't propose to go through the detail of the exclusions of Ashrag, Uygun, Currie and Shoaib which constituted the third to sixth stages of the 2007 allocation. There is, however, the odd political morsel worth mentioning. Firstly, of the four candidates first excluded, in every case around 25% of ballots didn't express transferable next preferences (and remember, at this stage only Rabbani is being passed over, so we aren't deep in the impenetrable mangroves of this contest, eking out last next preferences). Might this change over time, as Scots become more acquainted with the system, less likely just to scratch an "X" beside their preferred candidates, as they used to do before 2007?

Although results cannot be calculated from the figures, it is also interesting to take a look at the preference numbers*. Just how keen were the folk of Pollokshields to express preferences? Did they sweep through all nine candidates, or make a choice selection of one or two? I knocked the results together on this graph, which shows pretty plainly that while 7% of those who vote diligently complete the whole ballot, for the vast majority, interest sharply fell off in 2007 after the first preference was identified.  Historically, it would be interesting - but no insubstantial task - to see how Pollokshields compares with the rest of the country on this score. Prospectively, we can also speculate on how Scottish voters' use of their local STV ballots change this election year, and whether they avail themselves of the possibility of expressing multiple preferences.


One major change which is likely to have an impact on that is a new phenomenon in Scottish politics: multiple candidates from the same party, standing in multi-member council constituencies. The peril, potentially, is that your vote is split between your candidates, and so neither wins, rather than returning two candidates of the same tribe, as intended. In Glasgow in May, the SNP will be running two candidates in twenty of the twenty one council wards, and as many as three in Govan.  Similarly, Labour is running between one and three candidates in the various wards across the city.

Unlike the closed lists used for our Holyrood elections, voters in Glasgow will be able to single our preferred candidates in their ward rather than simply selecting a party. The Labour voter, for example, who rates one candidate but despises another will be able to direct their electoral support accordingly.  No doubt the headline council results and overall balance of power will receive the greatest attention in the press, but it will be fascinating to see just how far the parties' new multi-member strategies will work out - or precipitate unmitigated electoral disaster - in Glasgow.

*Which the council also publishes (POLLOKSHIELDS-preferences is the relevant page in this .zip file).

22 March 2012

Strathclyde polis: Operation Rubicon mothballed?

Yesterday, Chief Constable Stephen House was giving evidence before Lord Justice Leveson in the High Court in London. Before House got to the substance of his evidence, Leveson interrupted to make the following observation:

“Could I make it clear that I’m aware that the Strathclyde are presently involved in an investigation which raises a number of the issues with which this inquiry is concerned. And I want it to be understood by all. I am not merely not inviting you to deal with that inquiry. I’m positively requiring you not to. It has been a very important aspect of this work, that – of this part of the inquiry – that I am not trespassing on individual investigations. I’ve learned a fair amount about Operations Weeting, Elveden and Tuleta but only in the most general and not the most specific sense. Your operation, I understand it is very specific, and covers one particular incident. I have no intention whatsoever to – of – impeding or affecting any criminal investigation or inquiry.”

The interesting question being, where did Lord Leveson acquire this understanding, and what might he know that the rest of us don’t? The first thing to note is: Leveson’s estimation of Operation Rubicon's confines is quite unsupported by the material about the Strathclyde investigation in the public domain. Take yourself back to the July of last year, when it was launched. The Crown Office published the following press notice, detailing Rubicon's ambit:

The Crown had previously asked Strathclyde Police to make a preliminary assessment of the available information and the evidence given by certain witnesses in the trial of Tommy Sheridan following allegations made against the News of the World newspaper. The preliminary assessment has concluded. Strathclyde Police have now reviewed the available information and following liaison with the Area Procurator Fiscal at Glasgow the Crown has instructed an investigation should commence. The investigation will be progressed expeditiously and in close liaison with the Area Procurator Fiscal and Crown Counsel. Significant resources will be deployed though these will vary with the needs of the investigation.  The investigation will cover the following:

1. Allegations that witnesses gave perjured evidence in the trial of Tommy Sheridan.

2. Allegations that, in respect of persons resident in Scotland, there are breaches of data protection legislation or other offences in relation to unlawful access to personal data.

3. Alleged offences determined from material held by the Metropolitan Police in respect of 'phone hacking' (Contraventions of the Regulation of Investigatory Powers Act 2000) and breaches of data protection legislation in Scotland.

4. Alleged instances of police corruption linked to items 2 and 3 above, in respect of the unlawful provision of information or other personal data to journalists or persons acting on their behalf.

Having investigated these matters Strathclyde Police will report to the Area Procurator Fiscal at Glasgow and Crown Counsel.

These terms of reference could give nobody who had diligently read them the impression that the investigation was going to be exclusively limited to some offshoots of the Sheridan case. Certainly, that line of inquiry is the most concrete one specified, but the overall impression is that Strathclyde was being more generally mandated to investigate these matters. According to reports in the Scottish press during August last, a “well-placed source” indicated that Strathclyde had assigned as many as fifty officers to the investigation.

So what’s the explanation? Has – heaven forfend – Leveson only skimmingly consumed Operation Rubicon’s terms of reference and misapprehended its compass? If that was true, and his understanding was wrong, isn't it curious that House took no steps to correct His Lordship's blip? Alternatively, and perhaps more plausibly, might Leveson’s remarks suggest has that Operation’s effective scope has now collapsed solely into examining matters arising from HM Advocate v. Sheridan, Leveson having been pre-briefed, off camera, to this effect?

I commend to your judgment, which explanation seems most likely. If the latter, it adds to the depressing evidence that what may or may not have gone on in Scotland - the phones hacked, data illegally accessed, or bought from officers of the law - (a) won't be a priority for Leveson (understandably); (b) was investigated by the Information Commissioner in the middle 2000s, whose findings have been largely ignored; (c) that they continue to be ignored by Holyrood politicians, who instead favour us with misleading tales about Fleet Street villainy, contrasted with Scottish press sobriety (with the evidence pointing the other way mind you) - and if that cheering troika wasn't enough, (d) that potential breaches of the law beyond HM Advocate v. Sheridan are not now being seriously investigated by the Scottish police.

It may be that I am reading too much into a brief aside by Leveson, and House kept mum out of courtesy, but the implications of their exchange are seriously discouraging.

21 March 2012

The scandal of Scotland's hacking (non)scandal...

Quoth Alex Salmond at FMQs on the 8th of March, in response to a question from Willie Rennie about phone-hacking by newspapers...

"I do not know whether Willie Rennie managed to attend First Minister’s question time last week, when I reiterated and made absolutely clear my full support for the police investigations south and north of the border and my full support for the Leveson inquiry. Since the then Government did absolutely nothing about it, he should take on board the findings of operation Motorman. I promised last week that the document would be placed in the Scottish Parliament information centre, in case the identification by the information commissioner of potential criminality in respect of data protection had not been fully understood by members. I advise Willie Rennie to read the list, which extends across the London press—there are very few Scottish examples in the analysis. Every part of that document should be analysed, and we should support the police inquiries into phone hacking and the Leveson inquiry to the hilt."

The implication being, more or less, that save for the odd chancer and scallywag amongst the Scottish hacks, the invasive practices, blagging and the illegal acquisition of private data, were more or less limited to the London media and the spangled and sorry characters, unlucky enough to catch their eye. As Scottish politicians, we needn't trouble ourselves over much one way or the other. After you, Lord Leveson.  In point of fact, if you read the Information Commissioner's Operation Motorman reports, you will indeed find few Scottish titles, but Salmond oversimplifies. For simplicity, I'll quote my summary from this piece of last summer:

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).

For that reason alone, Salmond's bluff confidence in the Scottish press is utterly unwarranted, the aggregated UK data being equally consistent with rank invasions of privacy north of the Tweed - and with saintly press observance of legal norms. On the data published by the Information Commissioner, it is impossible to tell.  

Fascinatingly, the Sunday Herald published a very important article this weekend on the hitherto hidden Scottish aspects of Motorman. And a demolition of Salmond's self-congratulatory version of Scottish press exceptionalism it proves.  Based primarily on quotes from a key investigator involved in the Motorman investigation, the paper reveals that Ally "McCoist named as victim of black market in illegal information".  The investigator, Alec Owens, claims that:

"Amongst the files there were a lot of Scottish telephone numbers for reporters, a lot of Scottish numbers like 0141, 0131. A lot of numbers I recognised as Scottish. There were a lot of victims in Motorman that could be related as Scottish."

And that:

"There was a lot of information about ... Scottish reporters. One in particular, who I can't name, came out very strongly and, had we been allowed to do the job we wanted to do, he would have been in the top 10."

A few Scottish witnesses are appearing before the Leveson inquiry today, including the Chief Constable of Strathclyde Police, Stephen House and Herald editor, Jonathan Russell, but Salmond is right in one respect. As a judicial proceeding sitting in London, presided over an English judge, under English procedure, assisted by English lawyers, Leveson has focussed pretty unstintingly on the activities of Fleet Street and the Metropolitan police. And fair enough too, to some extent.

But given the vast ambit of his terms of reference, overburdened by points of interests and questions to be examined, I'd be shocked if Leveson really has anything interesting to say about what has transpired north of the border. It simply isn't a priority among his many priorities. But shouldn't the subject interest Scottish politicians? Shouldn't this trouble parliamentarians who are generally keen to cultivate an alternative Scottish political space? Perhaps even trouble them into activity? Remember, press regulation is not a reserved matter under the Scotland Act. Devolved institutions may decide to defer to Westminster-ordained investigations, but they need not. Given this weekend's revelations from the Sunday Herald, the complacency and indifference of Scottish politicians about the implications of the hacking scandal for Scotland and in Scotland is increasingly inexcusable.

20 March 2012

Same-sex marriage: Holyrood's impending stramash...

Yesterday, I dipped into the arcana of how Holyrood makes its laws, its weaknesses, and the wages of that weakness. My business in doing so was to begin to think through - and encourage some thought - about some of the detailed constitutional possibilities before an independent Scotland (and concerns which should animate us, whether or not the United Kingdom breaks up). I hoped to show that the issue of whether or not we should have a second chamber of parliament - say - isn't just a matter of abstract constitutional architecture, but poses important practical question too about how we want the law governing us to be made. In response, Robert Black asked...

"Even with a revising chamber, the legislation emanating from Westminster is regularly subjected to scathing judicial criticism. Is there any evidence at all that the standard of Scottish Parliament legislation is lower than that of Westminster legislation?" 

My intention wasn't to draw negative comparisons with "the other place", but Robert's observation raises important considerations. What is the interaction between institutions and structures and their effectiveness? I'm not a man for iron laws, and would cheerfully concede that there is nothing necessarily effective about a bicameral system, or ineffective about a unicameral parliament. Much, as always, depends on the virtues and capacities of individuals, but virtues are acquired, not innate, and can be shaped by institutions and their governing expectations.  Lest anyone regards all this as suspiciously abstract, I'd wager that we'll shortly experience a parliamentary occasion in Holyrood which will vividly fill in the practical colour: the same-sex marriage Bill.

It will almost certainly be an Executive Bill, introduced by Nicola Sturgeon, but probably subject to a "vote of conscience" in the larger parties. It is easy to see how uneasily this free-for-all fits with the Scottish Parliament's procedures. We didn't really get a taste of it last year, when Holyrood voted down Margo MacDonald's assisted dying Bill at stage 1, after the ad hoc committee formed to review its general principles recommended parliament reject it at that stage. After a single vote of the whole chamber, Margo's Bill was defeated. Neat and decisive, but only because the range of contentious issues sunk beneath the general principles of the draft never had to be dealt with, reasoned and argued through.

Contrast this with what we can expect on same-sex marriage. Ministers shall bring forward a Bill - but fellow members of the government will, I understand, be free to vote against it.  It is easy to see that some of them may become active agitators and coordinators of opposition to the proposal. It will almost certainly pass stage one consideration in the parliament - a majority will endorse its "general principles" - but then much of the trouble and interest starts. 

We are, I think, too disposed to think of a "conscience vote" as a way of legitimating dissenters, while ignoring their preferences: here, absolving certain pious MSPs - and particularly, ministers - from the embarrassing and politically damaging burdens of rebellion against a government policy which they may vigorously dissent from.  What this conception doesn't appreciate - or prime us for - is enacting legislation where conscience isn't a preserve of the defeated minority, but sets everyone free to follow their agendas, freely advocate their preferences and lodge counter-proposals.  It is all very well to ask Salmond questions about the precise shape of the government Bill - but if most MSPs will be free to follow their own lights in formulating the final text, ministerial preferences are just a very starting starting point.

Say, hypothetically, that Salmond tries to finesse his commitment to same-sex marriage, and induces Sturgeon to introduce a Bill initially similar to the proposals being advanced by David Cameron: same-sex civil marriage only, but no capacity for any "religious" bodies to do so, however they might be minded on the subject. By the by, it is worth recalling at this juncture that the bodies who would be banned from conducting such ceremonies include the Humanist Society (who conduct more "religious" weddings in Scotland than the Catholic church). Nevertheless, say moderating unreason takes hold and that is the official governmental proposal. We know that there are many in the parliament - folk in the SNP - who we might expect to argue that...

"... religious freedom ... cuts both ways. Just as those faith groups who do not want to conduct same sex marriages should have the freedom not to do so, I do not believe that should be at the expense of those who wish to conduct such ceremonies."

Assuming that there is any steel in these sentiments, we can expect amendments to fly about - and unusual cross-party caucuses to form, agitating in one direction or the other.  Those against the whole idea could be expected to oppose any extension of the language of marriage whatever, civil or religious. The potential knot of folk who might be snared by the notion of "compromising" on civil marriage can be expected to oppose empowering religious bodies to conduct same-sex marriages, while the last uncompromising group could be expected to support both propositions. By contrast, if the government introduces an uncompromising Bill to allow religious and civil same-sex marriages to take place, it at least seems likely that some enterprising tribune will conspire to bring forward a Cameron-inspired compromise, a vote on which will have to be taken. 

It promises to be a strange process of consensus-building - strange for the parliament that is - and nightmarish difficult to manage if resistance is protracted, and divisive amendments are forthcoming. The parliament's primary use of committees for legislative scrutiny also seems singularly unfit properly to undertake this process.  All of the vital considerations will not be in the committee room - but in the whole balance of opinion the chamber. And for that matter, how do you form a committee where the debate is framed in terms of conscience voting? Last session, the Health Committee was deprived of its jurisdiction over Margo's Bill, and a new ad hoc committee under Ross Finnie was formed to scrutinise it instead.  Some were disgruntled by that and detected in it low political jiggery-pokery. It may be that that precedent is followed; otherwise, we can expect the role to fall to the presently-constituted Justice Committee, which represents a balance of the parties of the parliament, but not (to my knowledge) a "balance of conscience", if I can put it that way.

Much of this depends how concerted the opposition to the proposal in the parliament proves, whether there is a confused will-to-compromise given the heat of some religious reaction, and what ministers' concretely propose in their draft Bill.  I wonder if it might not have been savvier if - like David Steel's 1967 Abortion Act - a private member had been charged with introducing the thing, albeit supported by ministerial acquiescence. It may be that Sturgeon handily manages this petard without being hoist upon it - but this is explosive material, which may prove wonderfully challenging for the government to manage both practically and politically. 

19 March 2012

"Not a model of draftsmanship either in structure or in expression..."

"Not a model of draftsmanship either in structure or in expression". That was Lord Justice Clerk's Gill's assessment of an Act of the Scottish Parliament in court last week. The case is just the latest in which Holyrood legislation has been set against human rights norms - here rights to property - and been found wanting. Although at first sight the issues involved seem off-puttingly technical, Lord Gill's judgment smartly summarises the statute challenged, the reform it affected and the rationales advanced in Holyrood in 2003 for it.

To introduce the point of contention very briefly, the Agricultural Holdings (Scotland) Act 2003 intervened retrospectively to render ineffective legal arrangements used by landlords to deprive agricultural tenants of security of land tenure. The 2003 Act, argued the litigating landlord, violated his right to property under Article 1 Protocol 1 of the European Convention and consequently was outwith Holyrood's powers. Extensive reference is made in the judgment to comments made by parliamentarians in the course of their speeches in the chamber and in committees. In his dry, understated way, Gill is also rather scathing about the reasoning proffered by former Labour MSP and Deputy Environment Minister Allan Wilson.

Last week, I quoted Joan McAlpine to the effect that she - and I'd guess other MSPs - basically think of Holyrood as a quasi-sovereign body, that shouldn't have to trouble itself over much with legal technicalities. Democracy on their side, and supported by popular election, surely their deliberations ought to prevail whatever? At least under the present dispensation, no so. That is not to say that that parliamentarians exhibit no sensibility for the limits of their powers - many are acutely conscious of their moderate to non-existent jurisdiction over decisions in welfare, foreign affairs, defence and so on - but the constraints on legislation within areas of devolved consciousness do not always seem adequately to have been attended to. Treating them as technical points of tedious detail, as naught before their political sway, our tribunes seem to prefer to defer to the reassurances of Ministers - and whizzbang - enact anyway.

More importantly perhaps, this vice doesn't solely relate to those bodies of norms - human rights, EU law, reserved matters - which constrain Holyrood's powers, but can also contribute to an overly-constrained vision of what the Scottish Parliament can and cannot do. Insufficiently close scholars of the Scotland Act - which provides no enumerated list of devolved powers, but instead only things reserved to Westminster, making life difficult - you sometimes get the impression that our politicians do not always realise the full extent of what they are empowered to do under devolution. Even Nationalists are given to mutely conceding devolved fields as areas where London should enjoy priority or even exclusive competence. The underlying issues raised by the Leveson inquiry are a case in point. 

In any case - another court action, another Act of Holyrood teetering on the brink of being declared beyond its powers - which should serve as a small reminder that while MSPs are representatives and politicians, they are also lawmakers, and the evidence at least suggests that they have not yet developed mature legislators' sensibilities for this aspect of their job. The procedures adopted by the Scottish Parliament don't much assist them to develop rugged independency on this score. From its inception, it was envisaged that parliamentary committees would undertake the main labours of scrutinising the details of legislation in Holyrood. In the event, and entirely unsurprisingly, partisan hackery has tended to reign. You don't have to have particularly sensitive ear to note that the concept of "holding the government to account" enjoys only very modest purchase in the discourse of Scottish parliamentarians. In a queer way, proportionality has arguably encouraged this disposition, encouraging all of the parties to hang desperately together, and to avoid dissent or rebellion from their respective leadership's line, and instead to kick outwards. By no means am I arguing that Holyrood's committees do no good work - they do - but their primacy in the scrutiny of proposed legislation simply has not produced the results intended and hoped for.

In addition to partisanship, partly this can be ascribed to the last act of legislation in Edinburgh, which can totally vitiate the virtues of methodical examination of a proposal. Right up until a Bill's last day in the parliament, amendments are typically brought forward, justified by the scantiest ministerial representations, and are promptly voted on - and raced through. There is no moment of pause, no second taken to ensure that these over-speedily adopted provisions combine into the best, intelligible text parliament can contrive to work its will. At the end of this blistering process - a vote on the final object is taken, and if successful, the Act is forwarded to the monarch for her Royal Assent.

It shouldn't surprise anyone that the results of this wholly unnecessary haste are chimerical final texts and poorly-drafted laws, ill-serving the parliament's declared ends.  It is not untypical for parliamentarians more and less mildly to resent what they perceive as judicial interventions in their sphere of competence. They would do well to think on the fact that it partly by dint of their adopting of muddy legislation that litigation and adverse judicial rulings are generated.

Represented by a unicameral parliament, Scotland has no "revising chamber", no delaying, scrutinising site to subject the government's proposals to concerted and in-detail examination.  Another one of those interesting questions for an independent Scotland, I should say. Should we have our own House of the Ancients, a Scottish Senate? Elected, appointed, some muddle-guddle mix of the two? I for one would have no truck with the fripperies, ribbons and peeled mustelids of a Scots Hoose o' Lairds, but depending on the outcome of the independence referendum, we ought to give serious thought to the virtues of forming a second institution in our democracy to undertake some of these neglected tasks Holyrood seems, at present, ill-suited to perform.

Encouragingly, Holyrood has instituted self-reflection through its Standards, Procedures and Public Appoints Committee, who published their first report into reforming parliamentary business in Edinburgh last December. I know some of you are shaking your fists at the screen, damning me for a drab jurisprude whose passions ought to be animated by other things - but this stuff matters and will, I fancy, have a significant impact on an approaching controversy in Scottish politics.

More on that tomorrow...

15 March 2012

Double jeopardy & the World's End case...

Only a numpty would fail to discern the semantic difference. Contrast the phrase: “we are investigating the possibility of a retrial” and “a retrial will definitely happen”. The first formulation certainly suggests serious-minded application – a searching search rather than a dawdling, half-hearted intention to review an acquittal – but for the Scotsman to headline yesterday’s developments in this morning’s paper as “World’s End murders accused set for retrial” is appallingly irresponsible.

Irresponsible, because Angus Sinclair’s retrial under the new Double Jeopardy (Scotland) Act 2011 was always going to be a very long shot, for a couple of reasons. Firstly, consider the legislation itself. What do the Crown need to do to have an acquittal set aside? They have to persuade the High Court that one of three main exceptions to the general rule against double jeopardy obtain. Firstly that the person was acquitted by a judicial process “tainted” by illicit jiggerypokery. Bribing or threatening judge or jurors or witnesses: that sort of thing; secondly that the acquitted person subsequently owned up to their guilt; and thirdly, that new evidence emerges after the acquittal.

This last ground is much-qualified in the detail. It is not sufficient that any new proofs are turned up. Before any re-prosecution will be permitted, the Crown must convince the High Court to set aside the acquittal and order a retrial. Under the Act, the Court may only so order, if they are convicted that that (a) the new evidence leaves the case against the person ‘strengthened substantially’; (b) that this new evidence was not ‘available, and could not with the exercise of reasonable diligence have been made available, at the trial in respect of the original offence’; (c) that on the new evidence and that lead at the first trial, ‘it is highly likely that a reasonable jury properly instructed’ would have convicted the accused; and (d) finally that it is ‘in the interests of justice’ for the court to set aside the acquittal.

Absent any interference with justice, and assuming Sinclair has made no post-acquittal admissions of guilt, it is these ‘new evidence’ provisions the Crown will have to rely on, if Sinclair is to be re-prosecuted. And they don’t strike me as immediately promising for a couple of reasons. Firstly, we have to remember why the World’s End trial failed in 2007. The presiding judge decided there was “no case to answer”, which is to say that in law, he believed the evidence presented by prosecutors was insufficiently corroborated for a conviction to be sustained. Against this decision, the Crown enjoyed no right of appeal and that was the end of it. Critically, even if the Crown did not present all of the evidence it had in its possession during the 2007 trial, and neglected to adduce important aspects which could have saved its case, that clearly isn’t “new evidence” under the Double Jeopardy Act to justify setting aside the acquittal.

Secondly, we have to remember the factual circumstances of Sinclair’s 2007 prosecution. Former senior police officer Tom Wood is quoted in the Scotsman article, suggesting that “I think it’s unlikely the Crown would have done what it’s done if it did not have new and compelling evidence. It would guess it’s to do with advancements in forensic science”. Respectfully, this doesn’t seem likely. Helen Scott and Christine Eadie were killed in the 1970s – Sinclair was not prosecuted for their murders until the 2000s. On my understanding, that much-delayed prosecution was itself based on new DNA evidence emerging in the intervening years. While not impossible that radical, revelatory innovations in forensic science have occurred in the last five years, I’ve not heard of any. 

Indeed, one might think that the Crown would decide to order a new investigation because it had what it regarded as old and compelling evidence of potential guilt, rather than because they already had new evidence in hand.  We aren't talking about the technically savvy review of an old case and old forensic methodologies, but the re-investigation of a relatively contemporary case, relating to now old facts.  Even without considering the hurdle of new evidence "significantly strengthening" the case against the accused, if Sinclair is to have his acquittal set aside, the High Court will have to be convinced not only that the officers of Lothian and Borders police have uncovered something new and substantial implicating Sinclair, but that this was new evidence which "could not with the exercise of reasonable diligence have been made available, at the trial in respect of the original offence". While this seems obviously to apply to information which becomes accessible because of radical technological innovation, absent that, it would be surprising if the presumably diligent police investigation leading up to the 2007 court case had excusably missed any evidence which would satisfy this standard.

I don’t want to ape the Scotsman’s mistake of misplaced definitiveness, but when you consider the statutory framework, and the circumstances of the World's End trial, the chances of Sinclair's successful re-indictment still seems remote.  Empowered by the new Double Jeopardy Act, it isn't surprising that the Crown felt obliged to undertake another review of the case, and ordered police to make further investigations. Quite proper too. But don't let's get ahead of ourselves. False hope for the families of these women, so cruelly killed, is no hope at all.

14 March 2012

The wages of Salmond's blunder in 2007?

During her speech at the weekend's SNP Conference in Glasgow, Nicola Sturgeon made this curious plea in relation to Holyrood's second go at the minimum alcohol pricing legislation:

"This week, I agreed that the legislation will have a sunset clause. That will allow us to test the policy in practice but give parliament a built in right to review it after five years and then decide its future based on the evidence. Minimum pricing will now pass into law with the backing of four out of the five parties represented in our parliament and with an overwhelming majority.

I am confident that it will prevail against any legal challenge that might come its way. But tying it up the in the courts will delay the benefits it can bring.  So my message today is this: let us all respect the will of parliament, let us turn this policy into practice and let us get on with the job of sorting out this nation's relationship with alcohol" (emphasis mine).
While the SNP government's approach to the independence referendum has been to deny any arguable difficulty in law with their plans, interesting to see Sturgeon taking a radically different tack on the alcohol issue, explicitly recognising the likelihood of this politically-prominent Bill ending up before judges. Reading the speech, I was struck by the fact that Sturgeon is only the latest in a run of Scottish Ministers who have had to contend with contrary courts and with legal dilemmas, in the pursuit of their goals. And damned frustrating too, I'd warrant. 

Although the basis for Sturgeon's potential difficulty is European Union law - about which I'm regrettably clueless - we've seen parallel arguments adduced across Scottish departments of state. Lawyers would tell you that the legal sources standing behind these different political controversies differ - and rightly too. In the justice brief, Cadder, Fraser and AXA concerned human rights protected by the European Convention and the powers of Scottish ministers and parliament, spiced with a little internal politics about Britain's many legal systems, the distinctiveness of Scots law, and the role of the UK Supreme Court. The legal competence of the independence referendum contends with the concept of "reserved matters" under the Scotland Act, while I understand minimum alcohol pricing could face its spot of difficulty on grounds of European Union law, on the free movement of goods.

What interests me isn't so much the theoretical detail or merits of these various disputes, but the sociological impact of this string of judicial controversies and potential controversies on the party leadership's general ideas about what the proper relation between ministers, legislatures and courts should be.  While all politicians of whatever stripe have to navigate the reefs and shoals of legality, and ministers should expect their government's best efforts to gang agley under judicial review at some point, particularly interesting to reflect on how the Nationalists are coping with it, for a couple of reasons. 

Firstly, it is one of the serious challenges of government. While it is moderately easy to be unrealistic in opposition, ministers tend to get shellacked for it eventually - and so contending serious-mindedly with these difficulties was always going to be a novelty for the SNP entering government for the first time. Secondly, if the independence referendum is won, there is a constitution to write, a new state to envisage - and a whole range of tricky posers about what sort of rights we may wish to entrench in law, what constitutional traditions we might want to ape or borrow from, which will require thinking through and decisions to be made. A Nationalist government which has delivered independence will obviously have a significant role in that process (but I hope, not exhaust it). If the attitudes of Scottish ministers to the constraints of law - whatever law - are being shaped from more or less unformed banality into some sort of more meaningful shape by their custodianship of public office, it is important to know what sort of images and ideas they are entertaining.

For those supportive of the judicial protection of fundamental rights and a non-sovereign legislature, the portents aren't particularly encouraging. Both Alex Salmond and Kenny MacAskill have criticised the Scotland Act's provisions on human rights protection, which mean that if a law or a Scottish minister's actions are incompatible with the rights protected by the European Convention, they are legally null, void, zippity.  Not so with Acts of the Westminster parliament. Instead, under the Human Rights Act, courts can only make a "declaration of incompatibility", stating that the UK legislation won't comply with fundamental rights, but this declaration has no impact on the validity of the Act itself, which remains in force.

Discussing the AXA case - the insurers' unsuccessful challenge to the Scottish Parliament's pleural plaques legislation on the basis of protected property rights - SNP MSP Joan McAlpine went even further, seeming to imply that having fundamental rights protected by courts was itself objectionable, or illicitly British, or objectionable and illicitly British, and Holyrood should be institutionally pre-eminent in its relation with the other branches of government (if giving due obeisance to popular sovereignty), and enjoy the same judicial review of its Acts as Westminster experiences: "the sham of the current constitutional arrangements. Scots, increasingly, are proud of their parliament, expect it to protect them and want it to have far greater powers. It is sovereign in the eyes of the people because they are sovereign and it is they who elect it."

This is a coherent constitutional model, without a doubt. The only slightly sticky issue is that it is not recognisably what the party agreed to in its own draft constitution for a free Scotland, which explicitly provides for judicial review of the Acts of an independent Scottish Parliament in a fashion nigh indistinguishable from the jurisdiction presently held over Holyrood.  As I noted at the time, if an independent Scottish Parliament passed the Pleural Plaques Act, under the SNP's constitution, the big insurers would still have been able to bring their case before the Scottish courts.  It is all very well to regard this sort of relation between the legislature and courts as a "sham" - as seriously undesirable and contrary to the democratic primacy of the elected assemblies of the people - but it would be helpful if Salmond, MacAskill and McAlpine showed more signs of realising the implications of their arguments, and the (now discernible?) gap which separates their rhetoric on the protection of fundamental rights and the role of the parliament from the constitutionalism advocated by Neil McCormick and others, just a few short years ago.

It is not, I dare say, a major vote winner or loser for the purposes of the independence referendum, but it is a vital and exciting question which the new Scottish state will be faced with and a good deal more intellectual rigour and self-awareness from senior nationalist politicians on these issues seems indicated. As a crony recently observed - persuasively in my view - one arguably missed opportunity on this score is the SNP's failure to understand the political potential of its Law Officers, of the Lord Advocate and the Solicitor-General, when in office.  Under the current constitutional set-up, these two officers have dual functions. While the Lord Advocate is best known (particularly in recent years) as the chief public prosecutor, the job also entails acting as the chief legal advisor to the government.  

Rather different business, you might well think, and the SNP government clearly imbibed that logic. While Lord Advocate's role as chief legal advisor wasn't mothballed, that aspect of the job was starkly de-emphasised by Salmond from the get go. Emphasising instead the prosecutorial element, Salmond said he wanted law officers "independent from the political process" and since the party took office in 2007, all four of its law officers have been career Crown Office prosecutors, selected from the body of folk who have risen up in the procurator fiscal service, rather than finding a political fellow-traveller inside (or crivvens - outside!) the independent Bar. First, we had Elish Angiolini and Frank Mulholland (pictured) as Lord Advocate and Solicitor-General respectively, now Mulholland as Lord Advocate and Lesley Thomson as his deputy. 

That "depoliticisation" strategy obviously went to the wind around the Offensive Behaviour at Football Act, where (ironically enough) the enthusiastic endorsement of the independent prosecutor proved politically expedient for the beleaguered SNP. Yet surely this run of recent legal controversies in Scottish politics have demonstrated that it would be a darned handy thing for the devolved government, negotiating the tricky limits of their powers, to have on hand a legally adept source of good advice in the cabinet. That is not to say that the SNP should have installed a stooge to shill out legal advice blinded by partisanship. But given the steady stream of legal problems and controversies, it strikes me that it would have been in the SNP's own interests to have appointed at least one politically-sensitive, jurisprudentially-versed fellow-traveller to the role, who could have helped them with hard-headed advice on how to address the sort of legal problem solving governments are always bedevilled by.

With the best will in the world, a career public prosecutor is never going to be able to fulfil that sort of function.  Although Jim Wallace - the UK Government's Scottish law officer - has hardly been a Ciceronian advocate for his cause during recent public appearances, it is conspicuous, damaging - and totally unnecessary - that the SNP have no legally credentialled "political" law officer they can really put up against him. A loss both inside and outside the cabinet room, despite the superficial charms of Salmond's "depoliticisation" of the law officers in 2007, it is difficult to escape the conclusion that it has proved a politically enervating blunder for the SNP government.

6 March 2012

Abortion: A conscience about conscience?

Last week, some of you may have read reports in the press about two senior midwives working in Glasgow's Southern General Hospital, who lost their case in the Court of Session. Committed Catholics, Mary Teresa Doogan and Concepta Wood shared the job of labour ward co-coordinator at the hospital.  Medical terminations took place in the ward under the Abortion Act 1967, but after the closure of the Queen Mother's hospital, and some rejigging between institutions, the number of abortions taking place in Doogan and Wood's ward increased. This caused them concern - so much concern in fact that having exhausted internal grievance procedures at Greater Glasgow and Clyde Health Board, they took their case before Lady Smith in Edinburgh.  As you might expect given the controversy of the topic, the Abortion Act 1967 includes a "conscientious objection" clause, which reads:

4 Conscientious objection to participation in treatment.
(1) Subject to subsection (2) of this section, no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection ...
(2) Nothing in subsection (1) of this section shall affect any duty to participate in treatment which is necessary to save the life or to prevent grave permanent injury to the physical or mental health of a pregnant woman.

Doogan and Wood did not participate in abortion procedures themselves, but objected that their supervisory role as ward coordinators meant that there were basically facilitating abortions, if not administering drugs which brought them about. As such, they argued that they should be entitled conscientiously to object to all aspects of their job which in some sense related to or facilitated medical terminations. For those interested in a more detailed legal reading, I've a guest post up on the UK Human Rights blog, summarising the case.  In brief, however, Lady Smith dismissed their petition for judicial review, rejecting what she called a "horse shoe nail" approach to causation, holding that the right of conscientious objection only extended to more or less direct "participation in treatment" - to abortion procedures themselves - and not to the sort of work Doogan and Wood object to, that of its background facilitation, in organisational and management roles. 

But what to make of it on a wider, ethical level? The philosopher Hugh McLachlan composed a short thought or two for the Scotsman after the case was decided last week, essentially arguing that:

"... when we adopt particular roles and accept particular jobs, we waive particular moral and legal rights and acquire duties. If we voluntarily accept the benefits of a situation, we ought to accept the attendant burdens. It might well be unreasonable to compel a midwife to be directly involved in an abortion." 

By contrast, Scottish Catholic blogger Cum Lazaro detects a significant absence from much of our public discourse on this sort of topic:

"What is lacking, both in MacLachlan's analysis and in the sort of combox debates I've regularly found myself involved in on similar cases is any sense of why conscientious objection is a good thing. In the absence of such reflection, the argument appears very simple. On the one hand, you have the general duties of a job and the inconvenience caused to others by conscientious objection. On the other hand, you have the hurt feelings of a couple of deluded believers in Sky Fairies. Not much of a contest.

Now putting aside, from the Catholic perspective, that you are asking two women to partake in murder, why should society, even when it disagrees with a particular moral position, and despite all the arguments against it,  facilitate conscientious objection? The general answer is given in John Stuart Mill's On Liberty: that society has an interest in the encouragement of individuality and conscientious reflection among its members."
For myself, I can't quite decide what to make of it all. Clearly, the idea of a ward coordinator and supervisor refusing to coordinate or supervise an aspect of their ward's activity is bound to generate frustration and inconvenience. Yet convenience isn't king, a fact recognised by the pervasive notion of making "reasonable adjustments" to accommodate the convictions or disabilities of your employees (embraced more and less enthusiastically by employers). As Cum Lazaro emphasises, universalising the question - what if every labour ward coordinator refused to supervise abortion processes in any way? - doesn't strike me as an immediately helpful way of posing the problem either, obfuscating rather than illuminating the real predicament before us, of religious minorities working in a medical field of both life and death, with strongly-held convictions about the immorality of abortion. 

What do you think?

4 March 2012

Bill Walker: (Sunday) Heralding trouble?

Most of you will have read today's Sunday Herald revelations about SNP MSP Bill Walker, who has now been suspended from the party and parliamentary group. In a report headlined "Revealed: MSP's history of violence against three ex-wives", the paper's investigations editor Paul Hutcheon draws from a range of sources, including interview material from Walker's second and third wives, to demonstrate that Walker was a serial domestic abuser during his first three marriages. Hutcheon also quotes extensively from court records concerning Walker's divorces, including the grounds cited by his first wife:

"Open files in the National Archives of Scotland, which can be ordered and inspected by any member of the public, reveal his first wife's reasons for divorce."

Is publishing this information problematic? You well might think not - think it positively desirable for the public to know - but the Sunday Herald might well find itself in a bit of legal pickle for splashing it across their front pages this morning. Take a look at the Judicial Proceedings (Regulation of Reports) Act 1926, still in force. Enacted to curb the salacious reporting of divorce proceedings, this little piece of legislation lay beyond my ken until Ian Smart pulled it out on twitter, but essentially, it regulates the amount of information the press can lawfully report about divorces, under threat of criminal sanctions being imposed on offending editors, printers, publishers and proprietors.

1 Restriction on publication of reports of judicial proceedings.
(1) It shall not be lawful to print or publish, or cause or procure to be printed or published—   (b) in relation to any judicial proceedings for dissolution of marriage, for nullity of marriage, or for judicial separation, or for restitution of conjugal rights, any particulars other than the following, that is to say:—
(i) the names, addresses and occupations of the parties and witnesses;
(ii) a concise statement of the charges, defences and countercharges in support of which evidence has been given;
(iii) submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon;
(iv) the summing-up of the judge and the finding of the jury (if any) and the judgment of the court and observations made by the judge in giving judgment.
If a newspaper's coverage of divorce proceedings strays beyond these four points of information, and offers more extensive detail about what transpired during a court case about a divorce or suchlike, its editor or proprietor may find themselves liable to a four month prison sentence and anything up to a £5,000 fine. Moreover, public transcripts of these judicial proceedings - such as those Hutcheon presumably accessed to glean his information about the cited grounds of Walker's divorces - are excepted from criminal liability under the s1(4) of the 1926 Act. It may strike some of you as absurd, but according to the law, such material may sit in public archives or in reports of case-law quite legally, while the same information appearing on the pages of a newspaper or a blog would be a criminal publication. What's more, the 1926 Act contains none of the qualified privileges attaching to journalists who reasonably cover court proceedings, nor would the consent of the parties involved in the divorce waive criminal liability for detailed, impermissible reportage about a divorce case.

While the legislation clearly has contemporaneous reporting of divorce proceedings in mind, the Act has no time limit, no statute of limitation, and so engages the Sunday Herald's coverage today, insofar as the paper has reported on the judicial processes that generated Walker's past divorces. The article itself is a curious and muddled mix of references - details culled from the archive about the divorce proceedings, and arguably autonomous evidence from the two women about specific instances of abuse at Walker's hands, some of which also appear to have been cited in their petitions for divorce.

I've no brief for the prosecution, and do not intend to go through Hutcheon's article with a fine tooth comb.  However, once you're familiar with the Judicial Proceedings Act, one question clearly suggests itself. Dramatic though it would be, factoring in the 1926 Act, might the paper be susceptible to prosecution for publishing today's story? It's a possibility. I'm no expert on this piece of legislation. Indeed, it seems to have been exceedingly rarely used in practice and if any fellow jurisprudes wish to chime in or vigorously dissent from the following analysis, all comments would be gratefully received.

The 1926 Act was intended to prohibit the publication of detailed factual information about divorce proceedings, hence the admonition that any reporting of the substantive issues - to avoid criminal sanction - has to be concise and only with respect to charges or counter-charges about which evidence had been given, or refer to the judge's conclusions.  The Sunday Herald's "First Wife's Story" is gleaned entirely from these court records. While the article's reference to "cruelty" is clearly a concise account of the basis for the divorce, the specific details about the assault alleged arguably shade beyond that. The reporting of "The Second Wife's Story" seems more obviously problematic.  Rather than quoting exclusively from an interviewee spouse, asking about her experiences rather than the divorce proceedings, Hutcheon references Walker's legal documentation from that second divorce action itself, arguably straying well beyond a protected "concise" account of the charges and counter-charges about which evidence was given, referencing implements used to carry out assaults, motivations, imputations about the character of Walker's spouse, her disposition, and his own conduct.

While today's revelations will undoubtedly have stark consequences for Walker's political career, one wonders whether the Crown Office won't also be taking a close look at whether, in pursuit of their quarry, the Sunday Herald haven't tumbled over this old, rusty legal tripwire, laid down in the 1920s.

2 March 2012

Ipsos-MORI on Devo-max: winning women voters...

Another poll from Ipsos-MORI and the Times this morning on the constitutional questions presently bedevilling Scottish politics. The pollster had three main posers it put to its 1,005 respondents 1. Whether folk have heard of "devolution-max"; 2. Whether they'd prefer a single question on Scottish independence, or a second on "increasing the powers of the Scottish Government, while Scotland remains part of the UK"; and 3. Asking "Do you agree or disagree with a proposal to extend the powers of the Scottish Parliament to include more laws and duties and control of most taxation, while Scotland remains part of the UK?" 

As usual, there are plenty of strands which can be followed beneath the toplines, on gender, home ownership, urbanity and rurality, age, children - and so on. As has come to be something of a habit, I'll attend to three groups which have proved consistently interesting in polling in this area: gender, age and affluence.  You may remember from the last Ipsos-MORI independence poll, that female support for independence was running some 15% behind men, while support for the proposition amongst older Scottish voters trailed the youngest cohort (18-24 year olds) by 15% too.  Correlated by the affluence of respondents, the poll was even starker. Support for independence amongst the richest fifth of Scots is less than half that of the poorest fifth, 26% to 53% support for independence respectively.  All present challenges of strategy to calculating nationalists.  But what if, by some route a second question on enhanced devolution is posed? Do the patterns we see with respect to independence reassert themselves around more devolution? And if not, why not? More problematically, what can we really make of support for "devolution max", when the term remains substantially undefined, and in its details, potentially very controversial?

Let's start with the topline. Ipsos-MORI posed this riddle:
The referendum will contain a question on whether or not Scotland should become independent. It may also contain a question on increasing the powers of the Scottish Government, while Scotland remains part of the UK, a proposal commonly referred to as 'devolution max'. Which of the following comes closest to your view?
1. The referendum should only include a question on independence
2. The referendum should include a question on independence and a separate question on devolution max
3. Undecided

Overall, the results are a pretty clear endorsement of the idea that the majority would like to see some sort of more-devolution question on their ballot papers, come autumn 2014.


And support for some sort of "more devolution" itself? Thumping.


The gendered breakdown on both of these questions proves particularly interesting. As you'll recall, the most recent polling from Ipsos-MORI has suggested that female support for independence lags some 15% behind men. When it comes to including devo-max, by contrast, male support for a multi-question independence referendum is significantly lower than women's, with female support for including a devolution-max question running 11% higher than men...

And on the central proposition itself, of striving to enhance devolution through the referendum process? Compared to the stark divergence on the issue of whether devolution max should be included, women are only a smidgeon more supportive of devolution max than men, at 73% to 70%.  In many respects, however, the most significant interest of this finding is its divergence from the run of polling on independence and the total absence of the gender gap on the central issue of "more powers".  Various hypotheses about this gap on independence have been advanced: women are more conservative, or more cautious, or have not yet been wooed by nationalists, connecting the possibilities of independence to policies which animate many women to vote, or think Alex Salmond's brusque good conceit of himself alienates female sensibilities from the SNP, and so independence. This divergence on the devo-max question speaks to those arguments in potentially suggestive ways.


My second hobby-horse: ancientness. We can frame the point in different ways - the younger are more likely to support devo-max question, or alternatively, the older cohort would prefer a single independence question. Either way, the vague aspiration for further devolution clearly has a greater purchase on the minds of younger voters.  That said, over 50% of over 55s go with the grain of the majority, and would also like to see more than one question asked in the referendum:

If the question is put, how would these four ages of man vote? Again, every age band indicate that they'd support some sort of devolved proposition - albeit in diminishing degrees in the more wizened quarter of the electorate. Also an interesting thought, for those of us interested in thinking about the future of Scottish politics (whether within or outwith the United Kingdom. Opposition to more devolution amongst the oldest cohort is double that of the youngest.  We don't often lend our lobes to the thought, but in a couple of decades, this youngest band of respondents will be in doughty middle age, sitting in parliament, occupying offices and the like. Interesting, then, that so many of them have become what we might think of as "axiomatic" devolutionists, which will have obvious implications if the UK plc isn't wound up in 2014.  On the agreeableness of some "devo-max" proposal, the results were as follows:



Finally, a word and a chart or two on affluence. The utmost echelon of wealthy Scots clearly much more hostile to the idea of independence than the poorest in the population, with graduations in between. As with gender, the whys and wherefores are trickier to tease out than the figures are to present. Are the best off Scots skeptical about the capacity of Scottish institutions to take up the work of government? Ambitious for themselves and their children within the UK, and concerned that those prospects might be jeopardised by an end of political union? Alternatively, do they regard themselves as cosmopolitan characters, and look sniffishly on Scottish nationalism as cramped and small-minded - contrasted with what they perceive as the open-mindedness and internationalism of the United Kingdom (however problematic that conflation may be)? Most of these theories emphasise concerns of "separation", if you like, whether personal and economically driven or to do with ways of imagining the self, the state and one's place in the world. 

So what about devo-max, which would "keep the Union together", and so removing many of the concerns one hears articulated about independence? The starting point must be this: unlike independence, the idea of more powers within the United Kingdom already attracts support across society, including from the clear majority of the wealthiest Scots.  Interestingly, however, of the five bands of impoverishment, this richest fifth is also the most opposed to and the least supportive of the idea, of all five bands. Indeed, support for "more devolution" in this top financial tier is just under 10% lower than its closest competitor, and 15% lower than the band most enthusiastic about "more powers".

Those full tables.