Bismarck's sausage

Law and sausages. Everyone knows Otto von Bismarck's famous, perhaps apocryphal, observation that you don't want to see either being made. Compressing mechanically-recovered meat slurry into more or less edible bangers can't be pretty. Legislation's gruesome aspect comes in different forms. Compromised, unprincipled, and sometimes just dawg gawn incoherent - some of the Acts emerging from parliament require a strong stomach or a crippling cynicism fully to appreciate. But Bismarck was an authoritarian old sod, and in any case, a certain messiness is democratic. Consensus is hard won, and often better reflects and accommodates disparate strands of opinion than a pristine conceptual scheme, sprung from a single head.

Sometimes though, it isn't just the process which makes you queasy, but the outcome. Sometimes, neither the law nor the sausage comes up to snuff.  In some respects, I'm beginning to wonder whether Holyrood's Scottish Independence Referendum Act of 2013 is one of the duds. A few weeks by, I suggested that one significant problem with the legislation is that it hasn't been drafted in full appreciation of the disparate nature of the Yes campaign and the range of citizen-led organisations involved.  There are now signs that the Act also seriously fails to take the digital context of the campaign properly into account. 

Recently developments have crystallised those anxieties. The Electoral Commission have issued this guidance for campaigners in the referendum. It isn't aimed only at those organisations who've signed up for "permitted participant" status and gained the right to spend up to £150,000 in the campaign, but at the whole gamut of campaigners in this poll, which is to say, everybody agitating for one side or the other. It made me go back to the legislation, where I made this startling discovery.   

Paragraph 27 of Schedule 4 regulates any and all publications during the referendum's regulated period - which we're just entering. On penalty of criminal prosecution, material "wholly or mainly relating to the referendum" - whether printed or online - is not to be published unless it is accompanied by the name and address of the individual or organisation promoting it.  Failure to comply can attract a fine of anything up to £5,000. So what's this about? On the one hand, this rule has obvious applications. It wouldn't be transparent or fair, for example, for a shadowy organisation agitating for a No vote to distribute obnoxious fliers, purportedly from the Yes campaign, with a view to buggering up their opponent's case and cultivating a false and negative impression of its argument. And fair enough as far as it goes.  But the rule set out in the legislation goes way beyond this.

What is moderately disturbing about this requirement to publish your name and address is that - legally - it is not limited in application to Yes Scotland and Better Together, to political parties, or to "permitted participants" like Women for Independence or Vote No Borders. Its strictures attach to any published material "wholly or mainly relating to the referendum." That means that it covers tweets, facebook posts - the whole gamut of social media, in fact - which is made "available to the public at large, or any section of the public, in whatever form and by whatever means" and which "relates wholly or mainly to the referendum." Given the popularity of these sites, chances are, it means you and anything you write or say on them about the September poll. Which is mental. 

In its new guidance, the Electoral Commission suggest that campaigners embed an "imprint" of this information on their Twitter profile using a link-shrinker. But understandably, few folk discussing this online are liable to be particularly keen to broadcast their location and sometimes their identity to heaven knows who.  When this came up on twitter yesterday afternoon, a number of folk protested that these rules apply only to registered campaigners. But look at the Act. You'll find nothing in there restricting these publishing rules to the bigger campaigning organisations. 

Indeed, the opposite is true. The legislation specifically limits the application of some of the rules to registered campaigns. For example, the duty to report donations over £500 doesn't attach to unregistered individual and bodies who don't intend to spend more than £10,000 in promoting their preferred referendum outcomes.  We find no such specification when it comes to these publishing rules. Applying ordinary principles of statutory construction, that means that the requirement to attach your name and address to referendum publications, in principle, attaches to anyone and everyone. The explanatory notes accompanying the Act (particularly paragraphs 185 to 186) support this broad reading of the provisions, as extending beyond the bigger campaigning bodies. 

The upshot? Every idle, inane, unserious tweet touching on the poll seems to count as a publication under the legislation. Every twitterer, or facebook user who shares thoughts "wholly or mainly relating to the referendum", without telling the whole world where they stay, is violating the law of the land and at-risk of being screwed out of five grand. In practice? There's a snowball's chance in hell that the Electoral Commission will enforce the law as passed to its full extent, stifling free expression and interfering inordinately with peoples' privacy. The Commission indicates in its guidance that it "will not usually consider taking enforcement action where it is clear from the document who is responsible for its production." While you can work out my identity from my profile, the same doesn't go for many other, perfectly civilised, bloggers and tweeters involved in the referendum debate. What of them?

It is all very well for the Electoral Commission to work around the law's absurd breadth and lack of social media savvy - but why the devil didn't it occur to our politicians, when passing this Act, to factor in the contemporary realities of the online dimension, which feature so prominently in the #indyref debate? The provisions in the Scottish legislation are substantially based on a piece of Westminster legislation which is now almost a decade and a half old, pre-dating the rise of facebook and twitter's flourishing. Why didn't our MSPs take free expression seriously enough, to affect a work-around and to reflect the new age of mass citizen "publishers" with a thing or two to say about political affairs?

Applying the legislation in practice, I find it impossible to believe that the Commission will despatch its inquisitors to winkle out the identities of folk like @loveandgarbage. Individuals wittering about the referendum will almost certainly avoid being fleeced in the courts for their failure to comply with the law. But that is what the law Holyrood adopted to regulate this referendum enshrines.  

Several areas of civil and criminal justice now struggle to keep up or cope with recent developments in social media. As the Sally Bercow-Lord McAlpine set-to demonstrated, the circulation of rumour dovetails untidily with the assumptions undergirding defamation law in the UK. Our legislation on contempt of court has been put under significant pressure by jurors' ability to research the accused person they are trying with a couple of clicks of a button. But given the prominence of social media in this campaign, it is disappointing and distressing to see Holyrood unimaginatively adopting such an outmoded and cavalier approach to the liberties of participants in this debate. This is one dodgy sausage.