31 October 2013

Scots justice for Brooks & Coulson!

A final thought for October. Let's make it a finicky, legal one. As you cannot have missed, the trial of Andy Coulson and Rebekah Brooks has begun in earnest in London's Old Bailey.  

James Doleman, who brought us his comprehensive, diligent, fair-minded and contemporaneous blog on Tommy Sheridan's perjury trial, will be covering the case down in London for The Drum.  

I'm under no illusions that Scots law represents the distinctive spirit and wisdom of the Scottish people, and an important pillar of our independence within the Union. Beyond the not proven verdict, most folk seem to have little sense about how law differs, north and south of the border. There are some areas, however, where Scots law seems demonstrably saner than that applied by our English neighbours. Today's developments in Brooks and Coulson's phone hacking trial offer an illustrate example. 

In Scotland, in a jury trial, once the fifteen have been empanelled, they're presented with the indictment which the Crown intends to prove against the accused. (See, for example, the indictment proved in the second, part-televised Nat Fraser trial).  That's the essence of the case. If the prosecution substantiates its case with sufficient credible and reliable evidence, the accused goes down. If not, he or she is acquitted. The indictment having been impressed on the mind of the trier of fact, the Scottish prosecutor immediately cracks on with their first witness, and their case.  No onions are produced. No emotive opening address to the jury is given, offering a foretaste of the state's case against the soul in the dock.  None of the evidence is anticipated by either party to the case.  And it is the evidence, after all, which really matters.

Compare and contrast this with today's opening speech from Andrew Edis QC under English law, which has got all of the papers salivating about just how cordial relations were between Coulson and Brooks.  I'm sure Mr Edis is a diligent officer of the court, and his reference to the romantic peccadilloes of the defendants has a sound basis in evidence.  But his opening speech is not evidence, only the anticipation of evidence, and yet it is the first and shaping voice which the twelve jurors in the Old Bailey will hear, in assessing this case.

It may well be that evidence of a romantic connection casts important light on the closeness of the relationship between the co-accused being tried.  If so, let witnesses speak to it. Produce the letter in court. That's what the case turns on, not the rhetoric of the prosecutor. In Scotland, the trial process would reflect that, and give the evidence priority. In England, Mr Edis is allowed to anticipate his evidence, and firmly implant the idea of an affair in the mind of the jury, before a single soul with direct knowledge of the facts or circumstances has spoken to it. Whether or not the allegation is true, this strikes me as infelicitous in a process which is meant to turn in its entirety on the proof put before the court.  That's the English system, but I don't care for it.

The end of the Coulson and Brooks trial at the Central Criminal Court will also differ in important ways.  It is for the presiding judge in both jurisdictions to sum up, giving the jury legal direction on their decision-making. That's entirely proper. But English and Scots law diverge on the proper role of court here too.  In England, as the exhaustive summing up in the recent and controversial Farooqi case exemplifies, the trial judge is expected to take jurors through, and comment on, the evidence. Hours can pass, as he or she does so. 

In a case chalked in to last weeks and months, this summing up may encompass vast quantities of material, doddering along after the prosecution and defence counsel's own, presumably extensive, canvassing of the evidence produced. I'm no expert on English law, but one can only imagine that these summings up are full of perils for the judge, and offer rich pickings for convicted defendants to appeal where, over the course of the judge's summary of the case, the defence case is underegged, neglected, or (arguably) episodically misrepresented.

In Scotland, by contrast, judges are seriously discouraged from expressing any view on the evidence whatever. Their task is to ensure, to the best of their ability, that jurors understand the legal tests that they are applying under the criminal law.  It is not sheriff's job to hold jurors' hands in the exercise of their duty, or to offer their own detailed and often subjective commentary on the evidence which has been adduced by the prosecution and the defence. The trier of fact is left to try the facts. And you'll rarely encounter any "fragrant Lady Archers" emanating from the lips of judges north of the border. 

And a damn good thing too, you might well think.

27 October 2013

The unctuous, the odious ... and the nakedly political

And we're back! After a wee early Autumn break from podcasting, Michael and I have thrown open the green room windows, retanked the sideboards with with gin, and fired up our recording equipment. For A' That is back. 

And what a week it has been in Scottish politics. The looming tale of the week has been the industrial stand-off - and saviour - of the Grangemouth petrochemical plant, and with it, 800 jobs. Labour romp home to victory over the victory over the SNP in the Dunfermline by-election, but what, if anything, does the result tell us about the state of Scottish politics in general and of the Scottish Labour Party in particular? Has Cap'n Lamont reformed her troops into a fighting phalanx, willing and able to take on the SNP?

As Euan McColm points out in the Scotland on Sunday this morning, echoing the point I made earlier in the week, one consequence of Dunfermline is that "Lamont has let a clear message become garbled".  Has political expediency trumped Labour's nascent policy strategy? Joining Michael and I to chinwag about these issues are two old friends of the podcast, Jamie Maxwell, who blogs over at the New Statesman and freelance journalist, Peter Geogeghan

Michael, a keen linguist, has been keeping a weather eye on the language of the independence debate. The question of the language of politics and the politics of language in the independence debate caused a wee stooshie.  "Separation" or "independence" or "constitutional change"? Which of these terms is appropriate, and against what criteria can we decide? Is the language of "liberty", or "liberation", or "colonialism" ever appropriate in the Scottish constitutional debate?

As usual, you can download this edition of the show via Spreaker or your iTunes. You can also sign-up for our RSS feed to ensure no episode will ever run astray. Thanks to Michael's technical efforts, you can now also find our back catalogue on YouTube. Or alternatively, just lend it your lugs right here.

24 October 2013

It's D(unfermline)-Day

Get your lamb's livers out. Strive to discern the prophetic resonance of a cloud of starlings. Take the tarot. Today, the folk of Dunfermline go to the polls to decide who they would like to represent them in the Scottish Parliament. So who will it be? 

Will Fife councillor, Labour's Cara Hilton, prevail? Might the SNP's Shirley-Anne Somerville just sneak ahead? Will a yellow wave heave the Liberal Democrat candidate back into contention, or will James Black, Jacobite, take dirk and targe to everyone else, triumphing in the Kingdom before sweeping south to take the strategically-important city of Edinburgh (and heaven knows, continuing on to Derby and an excellent showing in the imminent Prestonpans by-election)? Will Zara Kitson's Green shoots show any sap, or will they be ground under heel by the blazered pub landlord figure nominated to represent the seat by UKIP? Oh. And there's a callow Tory youth to take account of as well, who has been railing against the flabby "centre left consensus" offered by everyone else. 

At the outset of the race, Bill Walker having been confined to a prison cell with the worst grace conceivable, I thought the SNP were going to get stuffed. Much of this was down to the Walker Factor, though not entirely. Although he demitted office as an independent, in disgrace, I could sympathise with the unaligned Dunfermline voter who felt that the Nationalists had, in some vague sense, let them down by nominating such a man to represent them in the national parliament. If they felt that way, we had to take it on the chin.

But if the SNP vote was going to collapse, the people wreaking their vengeance, you'd expect to see that reflected in the initial round of canvassing.  I'm told by knowledgeable hands on the ground in Dunfermline that this doesn't appear to have happened.  Ian Smart's recent by-election blog corroborated this diagnosis from the other side of the aisle.

A couple of potential explanations for this apparently limited Walker Effect.  One: the ex-MSP's conduct and manner after his conviction as a serial domestic abuser was so outrageous, and so idiosyncratic, that Walker managed to focus minds on his own character and its defects, rather than on the party which made the mistake of nominating him to represent Dunfermline.

Secondly: it has proved more difficult to hang Walker around Shirley-Anne's neck than it might initially have seemed, despite Cara Hilton's zealous early efforts to do so. Shirley-Anne is palpably a different sort of person from the bluff, pompous and domineering Walker. If the SNP had nominated an ashen suit of a certain age, you can wager ten groat that the outgoing representative for Dunfermline would have remained more of an issue in this campaign.

Beyond the Walker Effect, it is important for us remember that Dunfermline was always going to be a very promising seat for the Labour Party. An unexpected gain in the 2011 Holyrood election, the SNP won it, beating Labour by just 590 votes.  In the 2012 local government election, Labour enjoyed a massive lead in first preferences, running 3,710 votes ahead of SNP candidates in Dunfermline wards. Factor into that the prevailing wisdom that incumbent governments struggle with by-elections, and the constituency always looked like a difficult hold for the Nationalists, and a must-win for Johann Lamont's Labour Party. 

To reframe that in a nakedly cynical way, we'll go into tonight with a pocket full of plausible and temporising explanations. By contrast, if Labour comes out anything but top of the heap in Dunfermline, excuses there are none. The ongoing Grangemouth story will knock the by-election result into a cocked hat, but if one of Johann's isn't sworn in in Holyrood, expect a volley of critical questions about the quality of her leadership and her party's current lack of direction.  

Whatever happens, Dunfermline also attests to the bother which Lamont's unfollowed up "something for nothing" speech continues to give her colleagues. Are Labour in favour of or against retaining universally-accessible free prescriptions, an un-means-tested bus pass for the elderly, the state paying for university tuition and arresting additional rises in the council tax across all bands? Bracket the question of who introduced these policies, and whether the Labour Party have supported them in the past. The record speaks for itself in that respect.  Is this the policy platform which Lamont and her colleagues now wish to stand on?

Even trying to be fair-minded, I'm not entirely sure. It may be that the Scottish Labour leadership hasn't made up its mind yet. That's grand. Periods between elections are periods for reflection, particularly for a party reviewing its fortunes after two consecutive defeats. But for folk like Cara Hilton, obliged to snatch up the party banner unexpectedly, and to set out and defend a policy prospectus, Lamont's under-explained "something for nothing" speech is an absolute nightmare. You can't make credible policy commitments on any of these core issues "when everything is up for review", but until Labour decides what it makes of the council tax freeze, university funding, prescriptions and bus passes, all of these policies hang under a vaguely-threatening cloud.  

We saw identical wriggling from the Labour candidate in Aberdeen Donside. Neither he, nor Hilton, have their marching orders. And caught in the eye of the camera, subject to the tender inquisitions of Brian Taylor and Bernard Ponsonby, both Hilton and Aberdeen's Willie Young took on the consistency of blancmange, vaguely trembling as they attempted to explain their positions on very basic, well-established issues of devolved policy.  I feel for them.  They're the ones obliged to look like numpties on telly, and in order to shore up their awkwardly indeterminate policy positions, to put out leaflets on these issues in a spirit of creative compliance with the truth. 

If, as most folk predicted on twitter this morning, the numbers stack up for Cara Hilton, and Labour win in Dunfermline this evening, it will be in great part despite, rather than because of the tactical position Johann has abandoned her party to, mid-term.

20 October 2013

Ed's energy-freeze: “something for nothing”?

"Something for nothing culture." (Eng.) Political Idiom. Origins: A rightist, typically Tory, critique of the "idle" or "undeserving poor".  Often invoked to garnish, or to impose more onerous conditions on the receipt of, social security rights and entitlements. Related terms: "scroungers", "slackers", "benefit dependency", "ripping off hard-working taxpayers".

"Something for nothing culture." (Scots) Political Idiom. Usage limited to a small, isolated community of Scottish politicians. Origins:  A Labour critique of universalism, with specific reference to "middle class welfare".  Invoked to justify the introduction of means-testing. Target: income taxpayers paying the higher, 40% rate, maybe.  Related terms: "millionaires with bus passes", "the investment banker's frozen council tax bill", "the spoilt wean of some rich bastard lawyer, idling around university studying something pretentious, which your frozen granny, living on pennies, is required to pay for."

These definitions in mind, what do you think Johann Lamont makes of Ed Miliband’s proposals to freeze energy prices for all domestic and corporate consumers, if elected? Her colleagues in Holyrood have all warmly endorsed it, demanding the Nats dance along with the tune. Anything less, Baillie and Gray argue, puts the plastic social democrats of the SNP government in hock to the greedy corporate purveyors of electricity. It's knockabout political stuff. What I am struggling to understand, however, is how this palpable enthusiasm for Ed's proposals fits with their Scottish leader's recent policy wheeze and hostility to universal measures.

You may remember, last year, the Scottish Labour leader railed against Scotland's “something for nothing culture”. Taking the slogan in itself, you might be under the impression that JoLa was inveighing against feckless folk who sook and sook away at the public purse, without “giving anything back”. But she wasn’t. The target of her critique was not the idling indigent, but wealthier Scots who were benefiting from universal benefits, their kids escaping tuition fees at Scottish universities, able to access prescriptions free at the point of need, whatever their disposable income, and the council tax charged on their homes, frozen.

Whatever you think of the merits and demerits of these policies, whatever costs you might think they impose on the public purse, only the wrongheaded would imagine – or argue – that taxpayers are getting “something for nothing”, having 40% income tax levied on earnings over £32,011 a year. By all means, let’s have progressive taxation, Johann, but the idea that these taxpayers are all mooching idlers is just bizarre, and without any discernible connection to your petty sloganising. As Salmond said in his speech yesterday, at the very least, these local government funding, education and prescription policies represent "something for something".

But let's take you at your word, and assume you're an intellectually honest, consistent soul. You oppose all measures, when we have a limited pot of public money to spend, where universalism trumps more focussed redistribution according to need. That's an interesting argument. So how the devil can you do anything but condemn Miliband's energy proposals as anything but middle class - and worse - big corporate welfare?

Miliband’s proposal will freeze energy bills by cannibalising the profits of energy companies, and consequently, decrease the UK exchequer's tax-take from those profits via corporation tax. Ed has not sought to finesse his proposal, distinguishing between the rich and the poor, businesses large and small.  All energy consumers, corporate or consumer, loaded or impoverished, will benefit from the scheme your leader has proposed.

Through a decrease in general taxation, we'll all collectively, indirectly, subsidise the energy glut of the richest individuals and corporations, while reducing the pot of money available to alleviate other social ills. And in the process, we'll do little to demonstrate the importance of government, or cultivate the critical social democratic values of universality and solidarity. Bracket any questions about the scheme's practicality. Ideologically, Johann, for you, isn't this just the sort of "something for nothing" scheme, privileging the privileged while reducing the money for targeted aid to the poorest, which you were so recently railing against? Lest you've forgotten, let me remind you. You said:

"Well, I have to ask, what is progressive about a banker on more than 100,000 a year benefiting more than a customer on average incomes from the council tax freeze? What is progressive about a chief executive on more than 100,000 a year not paying for his prescriptions, while a pensioner needing care has their care help cut? What is progressive about judges and lawyers earning more than 100,000 a year, not paying tuition fees for their child to follow in their footsteps at university, while one in four unemployed young people in Scotland can't get a job or a place at college?" 

Well, I have to ask you, what is progressive about bankers and chief executives and lawyers on more than £100,000 a year, living in the big hooses and leaving the lamps burning late into the night, benefiting more than customers on average incomes from Ed's energy freeze? What is progressive about the wealthy laird ratcheting up the heating in his castle, while the struggling Dunfermline granny still fears to ignite the second bar of the fire in her flat, despite the winter chill, as her care-budget is threatened as UK taxation falls?

What is progressive, in your terms, about a Labour government subsidising the energy costs of the massive corporate headquarters of companies recording stonking profits - computer screens glowing, lights shining out - while our small-town businesses continue to struggle in a difficult economy, and for whom this freeze will be of far more marginal financial benefit?

Or does your dismal vision of our "something for nothing country" end at Gretna?

19 October 2013

Lamont's tale of sound and fury

Seeing as it is the SNP conference weekend, a modest partisan gloat.  Since taking over the good ship Scottish Labour after Iain Gray's iceberg captaincy of 2011, Johann Lamont has made good use of her petted lip. Teacherly, scornful, Lamont has used her two year headship to ravage the SNP's record and motives, striving to puncture the credibility of key figures in the Scottish Government by liberally scattering barbed allegations of incompetence and dishonesty like caltrops. Such is the business of opposition.

Her colleagues have also been worrying away at another partisan meme: "Scotland on pause". Look at these dotty, constitutionally-obsessed Nats, neglecting the governance of the nation to pursue their weird, abstract pipe-dream of independence. We're the bread and butter army. Insert quotidian but touching tale of struggling ordinary folk here. Vote Labour.   

So how's that story going? If Lamont's master strategy was paying off, six years into the Scottish Nationalist administration, we'd expect to find a disgruntled public, still on balance against independence, grousing about how the SNP are getting on with their second term.  After all, it is almost inevitable that the magic fades. That folk become restless and fancy an alternative. But instead? According to the latest Ipsos-MORI poll, canvassed over the middle of September, a thumping majority of folk are still satisfied with how the Maximum Eck and his colleagues are faring in Holyrood.

Entertainingly, it appears that Lamont cannot even persuade her own voters that "Scotland is on pause" and that Eck is seriously bungling his second tour of duty.  Canvassing those who voted Labour in the constituencies in the 2011 Holyrood election - a head on smash with the SNP - the pollster found that a majority of Johann's supporters are satisfied too.

If you can't even persuade your sympathisers and fellow-travellers to share your political diagnosis, you're in a sorry way. As much fun as Holyrood commentators have, chortling over Johann's occasionally droll bruisings of Salmond at First Minister's Questions, strutting and fretting her hour upon the stage, out in the country, it remains a tale full of sound and fury - signifying nothing.

17 October 2013

Scotland: A Crowned Republic

After the Union of the Crowns in 1603, the Scottish Court having decamped south to govern Britain from the banks of the Thames, King James the I and VI famously boasted that “here I sit and govern it with my pen; I write and it is done, and by a Clerk of the Council I govern Scotland now, which others could not do with the sword.” 

In practical terms, you can be sure a good deal more effort, more folk and pens and swords, were involved in the administrative work of ruling Scotland in his absence than this languid, and characteristic, aphorism recognises. In James’ absence, the distinct Scottish Privy Council continued to attend to the Crown’s interests in Scotland. It would sit until the second union, being finally dissolved as a separate body in 1708. 

In Parliament, the King’s Lord High Commissioner continued to tap Scottish legislation with the sceptre, indicating royal assent to the laws adopted by his subjects. Today, the Privy Council continues to meet in London, Holyrood receives  royal assent to its Bills in letters patent, and the sceptre reposes prettily in Edinburgh Castle.

The First Minister is fond of suggesting that the SNP plan to roll back the Union of 1707, "restoring the Regal union" of 1603, and the personal union of Scotland and the rest of the United Kingdom under the sway of a single sovereign. As a wean, briefed at his grandfather’s knee in Scots history in Linlithgow, Salmond is prone to the occasional Romantic outburst, and his vision of a 17th Century “restoration” for the 21st warrants closer scrutiny.  What has been less clear is how practically this "restoration" might be realised and what it might mean in practice.

Would the Scottish Privy Council be revived? Would legislation continue to require, even formal, royal assent? Commonwealth states who have retained the Queen as head of state furnish useful parallels, and pose pertinent questions. Although Queen Elizabeth remains the Australian head of state, she wears a different Crown in the antipodes, governing distinctly as Queen of Australia. The same goes for the other countries which the Queen - at least theoretically - heads.

In Australia, New Zealand and Canada, for example, the Crown’s duties and powers are exercised by Governors-General. Would Scotland have an equivalent figure, representing Crown authority after independence? Salmond has been noticeably quiet on the question, but his plans do not seem explicitly to compass the creation of a new Governor-General for Scotland, or any equivalent figure. The question of a Privy Council hasn't got a look in at all.

Currently, Scottish republican strategy seems to be limited to grousing about the First Minister’s enthusiasm for Liz Windsor, and emphasising that some good socialists still exist, who believe the people are and should be the sole source of sovereignty in an independent nation. That’s all well and good, but there’s no harm in planning ahead, on the assumption that we win the referendum but Salmond prevails and the Windsors keep their throne. The important question is not just whether Scotland would and should retain the monarchy, but how monarchy might be retained – and changed – in an independent country.

In UK constitutional theory, the Crown is part of the legislative branch, the Crown-in-Parliament representing a constitutive dimension of Westminster sovereignty, in addition to the Lords and Commons. No parallel theory sees Holyrood’s relationship with the Crown in this light, but the Scottish Parliament is a creature of Westminster statute, and the Queen still gives royal assent to Scottish Bills.

The Privy Council, though even more baroque-sounding, is actually employed in important governmental work. Subordinate legislation called Orders in Council, such as the section 30 order which gave Holyrood indisputable power to hold the referendum, were made by the Privy Council. The Council has other functions too, emanating both from statute law, and from the historical powers of the Crown itself, its so-called prerogative powers, now effectively exercised by ministers of state.

We’ve heard a bit more than is typical about the royal prerogative recently, around the debates on waging war in Syria. Historically, power to declare war has been vested in the sovereign, and it is to the sovereign power of the Crown that Prime Minister David Cameron could still unilaterally appeal to throw us all into any conflict of his choosing. Politically, that would be unacceptable, but legally, the Queen’s Ministers, in exercise of the Crown's prerogatives, still enjoy those powers.

On twitter, I recently had a wee scrap with a couple of folk, arguing that the real reason Salmond wants to keep the monarchy to get his mitts on the full powers of the royal prerogative.  People making this argument tend to be less clear about which prerogative powers they have in mind.  As Adam Tomkins has argued, even in the UK, the sway of the royal prerogative is diminished and diminishing, de facto and de jure.  The zone of unfettered power is shrinking.

The Prime Minister’s power to wage war is, as we’ve seen, increasingly curtailed by political expectations that the legislature have a voice in the debate. Other areas in which the prerogative has traditionally been exercised have fallen out of ministerial power, and under statutory governance.  The fixed parliament legislation settled the Westminster parliamentary term, depriving the incumbent Prime Minister of the opportunity to dissolve and call elections whenever he or she damn well pleases. Traditional areas in which the royal prerogative has been exercised freely by ministers, such as the grant of passports and the civil service, are increasingly the subject of legislative codification and regulation.

For folk like myself, keen to topple the House of Windsor and to abolish nobility and princelings, the SNP leadership’s plans to retain the Queen as head of state prevail against my preferences. For calculating republicans, however, the important question is not only whether we have a crowned head of state, but if we’re to be stuck with a Queen of Scots, what sort of monarch do we make her?

It is for our constitution to determine, after independence, what powers and privileges this Queen of Scots is to enjoy. There is no reason whatever to suppose that we should leave the authority of the Crown in Scotland unaltered, as is, and simply invest Scottish Ministers with the prerogative powers currently enjoyed by their London counterparts. Superficially, Queen Elizabeth may reign uninterrupted. Backstage, however, a new constitution affords an opportunity to rearrange just about everything. 

A few ideas. If Scotland is to be a crowned republic, premised on the sovereignty of the people, why should the laws adopted by the people’s representatives continue to require even token consent from the sovereign? The tripartite parliament in Westminster, Crown-Lords-and-Commons, emerges from a rich and interesting constitutional history.  Let the London antiquarians tend and preserve it, if they will.  As for us, let’s ditch it. Why retain the fiction of a Governor-General, or some other viceroy? Why not, like the Swedes, deprive their monarchs of the burdens of assent, and ourselves of its undemocratic symbolism?

It minds not me that Queen Anne was, famously, the last monarch to decline to give her assent (appropriately enough, to a bill concerning a Scottish militia). If the procedure is extraneous and decadent, ditch it. By all means, have a period after parliament adopts legislation within which law officers can refer it to the constitutional court for deliberation on its validity, as at present. To date, that mechanism has never been used.  But no gaudy royal protocols are needed. 

By all means, reconjure the Scottish Privy Council into life. But let’s abolish orders of chivalry and nobility. Let the gowns fray on the shoulders of the last Knights of the Thistle. Let this Queen of Scots continue to debauch the public manners and promote deferential foppery. Folk who still hold her hollow crown in awe will be contented, and Better Together are denied a dividing line in the referendum. But the real business of republicanism lies beneath the jewels and polished metal, and beyond the ludicrous show of elderly toffs posing as archers, creaking in green, and gaudy playing card heralds, trying to keep their dignity intact inside their tabards. 

Instead of expending useless energy gouging Salmond’s royalism, I'd encourage Scottish republicans to scheme a little, and to plan for a republican constitution with a crowned head. If we must keep Queen Liz, let’s make sure she inherits a Scottish crown as amenable as possible to future republican amendment. Let’s clear away the prerogative clutter, so mere convenience and expediency make no case for keeping her longer than necessary, wish her joy of the throne, and work to ensure she finds the seat uncomfortably unfamiliar. 

13 October 2013

The Unpolitical Lord Advocate (Vol. 2)

It became easy to forget, when the SNP were first elected in 2007, that they entered government with no experience whatever of rule.  For the most part, we are told, Nationalist ministers took to their new tasks with gusto. As pelicans to water were Alex Salmond and his comrades to St Andrew's House on Calton Hill. 

Inevitably, however, you make mistakes on your first try, and the SNP were no exception. But the greater, and more unforgivable, failure is stubbornly persisting with those mistakes after experience has taught you the error of your ways.  The appointment of Frank Mulholland and Lesley Thomson as Law Officers in the SNP's second, majority term represents one such blunder.

This is no harm to Mulholland and Thomson personally. I know neither of them, but I'm sure they're folk with qualities and talents. Responsibility sits with the character who appointed them, and his refusal to tack away from a failed commitment. In August 2012, I published a piece, examining the Lord Advocate's conspicuous attendance at Cabinet meetings, despite the fact that Salmond announced in 2007 that his Law Officers would be "independent of politics" and outside of his cabinet.

Today, a Sunday Herald exclusive quantifies that attendance with official statistics. According to a Scottish Government spokesman, Mulholland has attended the Scottish Cabinet 45 times since 2011, roughly 50% of the time.  No mention is made of the Solicitor General, Lesley Thomson, but the photographic evidence from 2012 and this summer indicates that she too has sat in on the highest level of political discussion in this country.

Is this a problem? And if so, why? The Scottish Law Officers have two distinct roles. On the one hand, they hold office as prosecutors, the independence of whom from political influence is a paramount constitutional norm in this country.  On the other, the Lord Advocate is also the Scottish Government's chief legal adviser. Reconciling the two roles is challenging. The first demands a certain distance from the other parts of government, the second suggests an intimate familiarity with them.  

In England, they don't bother trying to give one person two such ill-fitting hats. South of the border, the Director of Public Prosecutions heads up the Crown Prosecution Service, while the Attorney-General, Solicitor-General and Advocate-General are the UK Government's Law Officers.  The current Attorney and Solicitor are legally-trained Tory MPs, with Jim Wallace advising the Westminster government on Scots law from the Lords. This is a bit of a simplification. The Attorney's coat buttons up around a bewildering and idiosyncratic range of duties. He may refer sentences to the court where he believes the penalty imposed is unduly lenient, has a role in contempt of court prosecutions - and so on - but there is a rough division in functions.

Not so in Scotland.  Historically (which is to say, before 2007), the position of Lord Advocate has been a party gig for a legally-trained but sympathetic fellow traveller, Labour or Tory. Labour's Justice spokesman, Graeme Pearson, foolishly seems to have pitched this history down the memory hole.  In today's Sunday Herald piece, he observes:

"The figures reveal a stunning disregard on the part of Alex Salmond for his own declared intention to keep the Lord Advocate out of politics. The absolute need to maintain a separation of powers in this regard is being ignored at will by the SNP Government, a government imbued with a desire to centralise and control."

While Pearson is no doubt right about the first part, and Salmond has quietly reneged on his commitment, Pearson's second comment is silly, excessive and ignorant of the history both of his party and of the position. Was it a scandal when Labour-supporter Colin Boyd held the role between 2000 and 2006, habitually attending Jack McConnell's cabinet? Was the Labour-Liberal coalition thereby "imbued with a desire to centralise and control"? I imagine he thought, and would argue, not. So what's the difference? Secondly, because of his duties as the government's chief legal advisor, the very position of Lord Advocate prohibits the "absolute" separation from politics which Pearson demands and requires. Good luck finding any lawyer who can work that conjuring trick.  He may have been misquoted or glossed, but the Sunday Herald suggests:

Labour MSP Graeme Pearson said there was an "absolute" need to maintain a "separation of powers" between the executive and the legislative arms of government.

As critiques go, this is just incoherent. The Lord Advocate is a member of the executive branch of government, but not of the legislature. Salmond, as First Minister and an MSP, is part both of the legislature and the executive. How all this relates to the Lord Advocate's position and its independence, I haven't the foggiest, but it may be a bungling effort to underline the importance of an independent prosecution service. I'd sympathise with that.

But Pearson's basic logic is wrong, merely amplifying Salmond's misjudgment of 2007. Political law officers are no bad thing for a government to have in its stable.  Given traditional conceptions of their role, civil service legal advice can only take you so far. Cabinet colleagues may suspect their officials are producing quibbling legal havers to block a policy they're hostile to for other reasons. A politically-sympathetic and trusted law officer can help to allay these tensions, distinguishing the real legal hurdles from paper walls.

They can also lend a hand to the tiller to try to resolve legal problems which a policy might face, not as an indifferent advisor, but as a colleague who shares your political goals, striving towards the same destination. In so doing, they can be an important voice for the rule of law in the highest circles of politics. This is not to be sniffed that.

The problem here isn't that Alex Salmond hasn't upheld his "depoliticisation" policy: it's that it was the wrong approach to the role which Law Officers can and should play in a government in the first place.  As I argued back in 2012, the problem with Mulholland's position is not that he is a political partisan. It is that his political participation and partisanship occurs under the guise of being a simple functionary, and that the government have foolishly failed to be transparent about the extent to which they've found it necessary to reverse Salmond's commitment to the exclusion of Law Officers from his cabinet. If 2007 has proved to be a blunder, reinforcing that blunder after the 2011 election was even less wise.

There are practical ways to resolve these tensions, and to answer Pearson's oversouped fears. Within the existing legal framework, the duties of the Lord Advocate and Solicitor General could be distinguished more sharply, the first the independent head of the Crown Office, the second fulfilling a more visibly political, legal-advisory role to the Scottish Government, or vice versa. 

Alternatively, we might take a third look at the Scotland Act, adding a third Scottish Law Officer to the Lord Advocate and Solicitor-General, to relieve them of their legal-advisory role to the Cabinet, while ensuring that Cabinet consistently benefits from sound legal advice.  Or we could exclude the Lord Advocate from the cabinet, and the Solicitor General from the Crown Office, leaving the latter solely responsible for the provision of legal advice to the Scottish Ministers.  If we vote Yes in 2014, all of these will become constitutional questions, and choices, for the new state.

It is necessary for prosecutors to be independent. It is also necessary for Ministers to receive problem-solving legal advice from a sympathetic but hard-headed source. That's the conundrum of the Lord Advocate. As today's Sunday Herald headline suggests, the current uncomfortable, unhappy and increasingly compromised "depoliticisation" is not serving Scotland or Scottish Ministers well.

12 October 2013

Notes on Govan...

Long-term readers may recall the obsessive twinge which consumed this blog in May 2012.  The spring elections of that year represented only the second time Scotland has gone to the polls to elect its local authorities using the Single Transferable Vote system.

Stuff to conjure with? For many of you, probably not, but for this tragic soul, unpicking how the process worked, how it allocated seats in multi-member council wards, and how voters transferred their support across parties, was marvellous if wonky stuff.  You can still find the fruits of these labours in the sidebar, with a breakdown of how seats were allocated in every Glasgow ward, aiming to show you which races in the city were close and which foregone conclusions.  

One of those wards was Glasgow Govan, which went to the polls in a by-election this week, after the death of Allison Hunter, the long-standing SNP cooncillor in the ward. Labour's John Kane beat the SNP's Helen Walker, winning 2,055 first preferences to Helen's 1,424.  In 2012, Govan was one of the city's most interesting races. The by-election, by contrast, was essentially resolved on first preferences.

In 2012, while Allison and Labour's James Adams comfortably exceeded the threshold on first preferences, the battle for the third seat was a close-fought ruck. The race was complicated by a couple of factors. Firstly, the SNP optimistically fielded three candidates in the ward rather than two, diluting their vote. Labour faced its own difficulties, fending off a "Glasgow First" insurrection composed of deselected former. Labour councillors. In the final allocation, Stephen Dornan ran the second Labour candidate close, eclipsing the SNP's Jonathan Mackie in the twelfth round but falling behind the second Labour candidate, who took the second of the ward's three seats. 

With Allison's untimely demise, a Govan by-election was always going to be a difficult win for the Nats. While the SNP enjoyed a very narrow lead over Labour in total first preferences in 2012, it's important to take a couple of factors into account when considering (understandably cheery) Labour boasts about a whopping great by-election swing their way. If you take Gordon Matheson's word for it, this result represents a stonking, unanticipated win for Labour.  As is often the case, the reality is more prosaic and the People's Party had a couple of important cards in its hands here.

Firstly, in 2012, the leading Labour candidate took the most first preferences of any candidate: 1,727 to Allison's 1,460.  STV elections in multi-member wards are different from an STV election for a single seat, particularly in a ward like Govan, overwhelmingly dominated by two parties, with a tiny knot of alternatives trailing way behind the leading candidates. The number of available transfers are unlikely to disturb the outcome in the first round, unless it is very close, particularly on a low turnout.  Secondly, it's also important to take the impact of 2012's Glasgow First rebellion into account. A full 15% of the Govan electorate supported their former but deselected Labour representatives in 2012, to the official candidates' total of 32%. 

From the looks of this week's result (albeit on a much lower turnout), the Glasgow First folk at least have "come home to Labour".  Let's look at those first preferences again, for this week's poll:

A few other entertaining notes: James Trolland, the Scottish Democratic Alliance candidate, received a single, solitary vote in the Govan by-election. Just the one, which transferred to the Nats. The Liberal Democrats were outpolled by UKIP, a somewhat eccentric secessionist from the separatist cause, Tories, Greens - and the third-placed anti-Bedroom tax campaigner. Having attracted nineteen first preferences, some solitary supporter of the Tartan-BNP in the ward - the schismatic outfit, Britannia - actually thought the Greens next best represented their aspiration for an ethnically monochrome but ecologically sensitive Scotland.  The mind boggles.

And what does the Govan result tell us about the independence referendum, or the approaching Dunfermline by-election? 

Bugger all.

9 October 2013

Tory Human Rights Trolling Vol. 145

How's this for a Union dividend? If David Cameron's government secures re-election, the Human Rights Act is for the chop, as is Britain's participation in the European Convention on Human Rights.  So says the Home Secretary Theresa Gray, and Chris Grayling, the Lord Chancellor. 

The British judge on the court will receive his P45. All those elected "unelected Euro judges" will have to spend their time deciding cases lodged against Malta and Liechtenstein instead.  Britain can "repatriate" the ten judgments it actually lost in Strasbourg's "war on British justice" last year.

And the Daily Mail, with exhausting predictability, will eventually turn its fire on our actually-unelected UK Supreme Court over some decision or other. The rhetoric about judicial encroachment on the sovereignty of parliament serves perfectly adequately against domestic tribunals too.  While the hacks will be deprived of the diverting satisfactions of europhobia, the old anti-judicial nostrums still have spice.

Last week, Mark Elliott of the University of Cambridge took an informative look at what might come next. On the domestic side, will the fabled "British Bill of Rights" take shape to replace the repealed human rights protection, or will the Tories take us back to the true-blue days before Tony introduced the Act in 1998? Internationally, it isn't at all clear that we can denounce the ECHR and remain inside the EU, which has, itself, recently acceded to the regimeBring it on, some Tory MPs might say. It is easy to make fat-headed speeches in support of such a proposal, but rather harder to realise in practice.

What's missing in all of this is Scotland, and the rest of the devolved powers. Of Holyrood, the Welsh Senedd and Stormont, our ardent Unionist government has said diddly squat. And there's a snag. Yes, the Human Rights Act applies across the UK. Yes, Westminster could repeal the law.  But there's more. ECHR protections are separately written into the Scotland Act, and the Wales Act, and the Northern Ireland Act. Neither the legislative assembles and parliaments, nor their ministers, can act in a way which conflicts with the fundamental rights protected by the ECHR or EU law.  If they do, the courts can and will step in, to keep the legislatures and the politicians in line.

Leaving the jurisdiction of the European Court, or repealing the Human Rights Act, will leave these provisions intact. In the discharge of his ministerial functions, Kenny MacAskill will still have to uphold Article 8's protections of the right to privacy and home life. Holyrood's legislation could still be challenged and knocked down by courts in the name of the property rights, enshrined in the first Article of Protocol No. 1 to the European Convention. 

Legally, Westminster could certainly amend the Scotland Act too to knock out these clauses, but will that be politically possible? I'm not so sure. Nothing in Grayling or May's rhetoric suggest they have thought about the implications of the devolved powers at all, or have the slightest awareness of this considerable problem with their plans.

Since 1998, the constitutional convention has evolved that amendments to devolution legislation must be approved by the parliament they relate to. Thus, Holyrood debated, scrutinised and sanctioned the Scotland Act, passed by Westminster in 2012.  The bottom line: if we vote No in 2014, and the Tories try to knock out the ECHR protections in the Scotland Act, Holyrood would arguably be in a position to veto the idea.

Would it do so? As others have noted, the SNP government's line on human rights has not always been consistent (and in some cases, even intelligible). Salmond has dragooned the idea of judicially-enforceable constitutional rights, and remaining in the ECHR, into the independence debate. If you look back through the legislative record, however, you'll find instances (in the light of Cadder) where both the First Minister and his Justice Secretary have seemed to argue that the ECHR protections written into the Scotland Act should be eliminated.  If the Tories were in a position to offer the Scottish Government just that, would they decline? What about the Welsh Assembly, or the Legislative Assembly in Belfast? A question for another day.

Overall, though, I'm struck yet again by how little these London politicians regard, respect or even understand the evolutions in Britain's constitution of the last almost-two decades. In his Memorials of His Time, the Scottish Whig judge Lord Cockburn observed that "we had wonderfully few proper Jacobins" in this country during the 1780s and '90s, despite the fears of a reactionary Establishment.  Today, it seems, you find marvellously few proper Unionists in this Conservative government.

7 October 2013

The Man Who Saved Britain

The official line seems to be that Alistair Carmichael will "bring a different, more combative" approach to the role of Secretary of State for Scotland.  For Jamie Maxwell in the New Statesman, today's Westminster reshuffle is a tactical blunder. Michael Moore, Jamie argues, represented a cool and courteous Unionism which posed tactical problems for SNP belligerents.  How to paint this lugubrious, labrador Borderer as some sort of high-handed Tory functionary? Jamie argues:

"Moore’s sacking is a classic Westminster misreading of the Scottish situation. London is obsessed with the idea that a big hitter” is needed to "take on" Salmond. Yet quite apart from the fact that Carmichael is hardly a "big hitter", the First Minister relishes (and has a habit of winning) confrontations that allow him to pit plucky, populist Holyrood against the big, clunking fist of Whitehall. Moore was a formidable opponent because his measured, moderate unionism was difficult for the nationalists to deal with. For no good reason at all, the no campaign has just dumped one of its strongest cards."

I'm not so sure. First the cheap political point: I'm not convinced that Moore, whatever outbursts of measure or moderation characterised his tenure in Dover House, really impinged on the public consciousness one way or the other. By my reckoning, Alex Massie sounds a clearer note over at the Spectator:

"Alistair Carmichael will, we are told, bring a more combative approach to the Scotland Office. Well, we shall see. But he is still a Scottish Liberal Democrat. They don’t do Rottweiler. His promotion, I fancy, owes much to Nick Clegg’s desire to reward Carmichael’s years of service in the thankless task of persuading Lib Dem backbenchers to vote in favour of policies pursued by a government formed, in part, by the Liberal Democrats. This has been harder than you might think and tougher than it should have been."

Without any particular animus agin the fellow, I struggle to see the new Scottish Secretary as a credible crusader for the Union Jack. Very moderately brasher than Moore he might be, but Macolm Tucker he ain't. Carmichael has always had something of the burst couch about him. He's comfortable but unfashionable knitwear, good for kicking about the house, but hardly stuff to swank in. The well-worn leather shoe on the foot of an Argyllshire auldwife who makes rare tablet and scones which rise. Hedge-trimmer, not hatchet man, like a Blue Peter presenter who has reached a thickening middle age and now discusses how to trim peonies on Gardener's World

You can imagine him gossiping in the church hall in Kirkwall and enjoying droll exchanges with the minister as they both - with feigned guilt - scoff a fourth fairy cake rustled up by some diligent parishioner.  In the local hotel pub, you can see him giggling girlishly as he orders a second dram for the road. Oh, I am awful. Slurp. In the movie version of the independence referendum, he'd be played by Christopher Biggins.

On the other hand, Jamie makes one critical point. Whether or not Carmichael emerges from central casting as a credible liberal unionist bruiser, the improbable way his appointment has been characterised has stitched his motley for him, and tells us at least something about the Scottish sensitivities at the heart of the Westminster government. Ta very much for all the independence referendum donkey work Michael. Bully for you. Now for a bully to give those perfidious Nats what's what.  Whether or not Carmichael measures up for the role: that's the one being pushed.

It beggars belief that any sane soul believes that the constitutional debate needs a yet more confrontational approach from the anti-independence side. And yet there the proposition sits, unabashed. I wish Mr Carmichael well in the role, I hope Mr Moore isn't smarting too sorely from his embarrassment today.  I would commend one lesson to the Secretary of State, however, as he dons villain's greasepaint and practices sounding robust.

The problem with a scorched earth strategy is that, eventually, you run out of things to torch.

6 October 2013

A Scottish eye on Éire...

Yesterday, the Republic of Ireland rejected the Sinn Féin-supported Fine Gael-Labour government proposal to roll up the second house of the Oireachtas, leaving the proportionally-elected Dáil as the Republic's solitary parliamentary chamber. By all accounts, the constitutional referendum was a bit of a boorach, but as a consequences of the narrow vote for retention, Ireland's unreformed Seanad lives on, leaving the country in the bicameral column in terms of democratic states.   

Like our own beloved House of Lords, with its dubious mixture of political appointees, a small phalanx of hereditaries and Church of England bishops, the sixty-soul Seanad is not directly elected by the Irish people, but are formed according to a dizzying array of protocols.  The Taoiseach gets eleven.  Historical elitism gives the graduates of certain Irish universities six more, while the balance of forty three more are plucked from obscurity by "vocational panels" of some sort.  

Even to the outsider's eye, this doesn't sound ideal.  I'm poorly placed to reflect on the internal fallout for Irish constitutionality and politics but the Irish referendum does pose interesting questions for those of us, looking forward to a Yes vote in 2014, and beyond, when thinking about the constitutional structures an independent Scotland could and should adopt.  

Given our constitutional traditions and history, and the Nationalist plots to retain the Queen as head of state, it seems unlikely that a presidential system will hold many appeals for the new nation. Parliamentary democracy's almost certain to be the thing, and a good thing too, you might well think.  But what sort of parliamentary arrangement? And what values ought to inform that choice? It's a big topic which I'm just going to dip into here, but I wanted to sketch a few of the issues we'll have to think about.

Firstly, and most elementarily, should we have a second chamber at all? Do we need one? If you look at democratic nations of similar size, the Danes get by with just their 179 MP Folketing, as does the 120-strong Israeli Knesset. On the other hand, U.S. states of parallel populations often maintain bicameral state governments.  For instance, Colorado, with a population of just under 5,200,000 folk, supports a directly-elected governor, and a state House and Senate with 65 members and 35 members respectively.  Coming in at 129 MSPs, devolved Holyrood will seem to many folk sufficient.  Why multiply our politicians? Why have two chambers at all? 

Use and convenience will may unicameralism attractive to many, but there are problems with the status quo. Holyrood's current procedures leave it particularly vulnerable to last-minute government amendments. Bills go through three stages.  The first two involve extensive Committee involvement, including calls for evidence, scrutiny, debate.  The third stage, by contrast, is usually raced through the whole chamber in a single sitting. It is commonplace for the government to attach new, entirely unscrutinised provisions at stage 3, meaning that wholly unscrutinised provisions hit the statute book.  This is a recipe for mischief. 

In a bicameral system, this wouldn't be possible in the same fashion, and the second revising chamber would have an opportunity to arrest the now irresistible speed at which a unicameral legislature can adopt new laws.  Bicameralism is not, however, the only solutions to these challenges, but it is one potential way to make space for laws to be properly considered.  On the other hand, some folk are understandably concerned that an elected second chamber would find itself in political competition with the first. Which brings us to the question of appointment.

Although it seems unlikely to be politically acceptable, we might consider the ideal if not the detail of the Irish Seanad model, forming a second chamber from knowledgeable sorts from different aspects of civic life, to inform our legislative process. Different appointment mechanisms might be considered.  Alternatively, we sturdy democrats might favour direct election across the parliamentary board.  If so, there is still the possibility that the two parliamentary chambers could be elected according to different franchises, to serve different constitutional goals.

For example, the Electoral Reform Society have recently mooted the idea that a revising chamber could be composed of a revolving group of average punters, selected by lot. Alternatively, we might take our inspiration from the Americas, and try to use a second chamber to reflect Scottish regional diversity. Holyrood's current set up means that the more-populous parts of the country politically dominate Scotland's lower-population, usually rural corners.  For much of Holyrood's early history, this was represented in the rule of the predominantly urban Labour Party (albeit with more rurally-inclined Liberal Democratic allies).  

Might an independent Scotland want to use a second chamber to even out these imbalances of population, giving minorities greater influence on the political process? This sort of thinking informs the American approach where, for example, seats in the federal House of Representatives are allocated on the basis of population, but every state, regardless of size, has two senators. Senators are also less-regularly elected than their House of Representative colleagues (and if I remember my United States constitution correctly, must by law be more ancient than your callow congressman). 

A recipe for political gridlock? Maybe. But it is also an attempt to build safeguards into the democratic system so that the majority cannot always overwhelm the minority.  Although the scale of the independent Scottish state would differ significantly from our American cousins, Scotland has its own geographical politics which we might want to take account of constitutionally. A second chamber could reflect these interests and values. We could even ape the provisions of the UK Parliament Act, allowing the populist "representative" chamber to override decisions reached by a second, regionally representative body.  A veto isn't inevitable.  Everywhere, there will be constitutional choices for the new Scotland to mull over.

If we achieve a Yes vote next September, we're going to have to think about all of these sorts of issues.  Although the noisy voices of common sense will, as always, claim their preferred models are inevitable and obvious, a new constitution represents an opportunity to approach our politics in different ways, requiring us to think about the values we want to privilege in the process.  For that reason at least, Ireland's abortive lurch towards unicameralism has lessons, and poses questions, for us all.

2 October 2013

Homicide After Stranger Danger...

Et tu Brute? Most of our great literary murders involve kinslaying, friends who turn on each other, or acquaintances who have a fatal final encounter. Claudius did in his brother Old Hamlet. Desdemona died at Othello's hand.  Raskolnikov took an axe to his elderly pawnbroker.  Random, impersonal deaths are not hard to come by either. Pick up any war tome. But intuitively, the literary emphasis on the terrible perils of the familiar and the familial makes sense. Our notionally nearest and dearest can fire up the hottest passions. Love, certainly, but also resentment, recrimination, rage. 

In many ways, that's the disturbing story told by last year's just released homicide statistics for Scotland.  A few facts from the bulletin: there were 62 victims of homicide last year. 78% were killed by an acquaintance (56%), partner (15%) or family member (7%). The gender (im)balance of killers and victims remains striking.  Of the 62 people killed last year, 50 were men and 12 women. Chart 10 sets out the decade-long trends on the relationship between Scottish murder victims and their killers, disaggregated by gender.  Click for a fuller view.

In 2012/12, 82 people were accused of committing these murders, of which 66 were men (80%).  62% of accused people were thirty or younger. 69% of all homicides happened in a dwelling last year, with 76% occurring in some residential location. In analysing these figures, it is important to remember that homicide statistics offer an account of deaths, not potentially fatal incidents which the polis are able to break up before they escalate, or which paramedics are able to staunch before the victim bleeds out.   

But these statistics pose troubling questions about how we think about danger in society, and where we anticipate peril springing from. I'm sure we've all, on one occasion or another, laid hagridden in bed, dreaming of the dark intruder with fatal designs upon us, or our families. Recently, I dreamed I was being chased around an Escher-like domestic maze by a murderous brass minotaur: make of that what you will. 

After stranger danger, we are left with the unsettling thought: for many folk, home, family and friends are really where the peril lies.