5 July 2014

Regulating the Protestant mardi gras...

A few years back, the National Theatre of Scotland staged a show examining sectarianism and Glasgow's Orange traditions. Several of the folk involved in putting the piece together hailed from furth of the city - some English. The piece incorporated musical elements familiar to anyone who has ever lived in earshot of a parade - a burst of the Sash, the wheeze of an accordion, a drum's rattle and the shrill telling of the flute. Participants in the production had to be sternly admonished not to whistle, hum or sing these catchy ditties in public, however firmly their notes had lodged in the actors' skulls. The locals could only get the wrong impression, and heaven knows what bother you might find yourself unwittingly embroiled in. 

The Orange goons are out in force today. My local Rangers' pub currently rejoices beneath a Union flag and the fluttering red hand of Ulster. Some assiduous drinker has spattered every surface going with "Naw Thanks" stickers. Alas, I missed the local parades, but I'm sure the waddling tabards of the Greater Easterhouse Truth Defenders and their loyalist brethren had a splendid day of it at their Protestant mardi gras*, holding up the traffic and standing up for our covenanted race against the Roman antichrist. If twitter is anything to go by, many of this year's walkers made their own contribution to the independence debate, swag-bellied bowlers brandishing anti-independence messages: what would King Billy do?

But as usual, I got to wondering about the legalities of all this. Orangemen are as free as anyone else to make their contribution to this campaign, and quite right too. But they are also subject to the same rules as the rest of us on referendum campaigning and spending. The Grand Orange Lodge of Scotland recently registered as a permitted participant with the Electoral Commission. This entitles them, under the 2013 Act, to spend anything up to £150,000 on referendum expenses between now and polling day in September. The legislation defines a number of activities and forms of expenditure as referendum expenses.  As permitted participants, the Lodge will have to report to the Electoral Commission on their outgoings, but they are also liable to prosecution if they exceed their permitted spending total. 

Expenses are engaged if they are incurred "otherwise in connection with promoting or procuring any particular outcome in the referendum." They extend to advertising of any nature, whatever the medium used - presumably catching the production costs for the anti-independence signage brandished today. Paragraph 11(1)(8) of Schedule 4 of the Act extends this to:

"Rallies and other events, including public meetings (but not annual or other party conferences) organised so as to obtain publicity in connection with a referendum campaign or for other purposes connected with a referendum campaign. (Expenses in respect of such events include costs incurred in connection with the attendance of persons at such events, the hire of premises for the purposes of such events or the provision of goods, services or facilities at them.)"

That seems pretty clearly to extend to today's marches. If the Lodge was required to contribute towards the costs of administering their marches, in police time, that'd bust the bank, but they don't. But you've got to wonder about the Lodge's other spending associated with today's celebrations which might fall within the referendum regulations. Are folk bussed in at the Lodge's expense? Or are individuals engaged in a common plan with the permitted participant to do so? And have any of the loyal brotherhood thought to read the 2013 Act to find out? 

Under the legislation, it is illegal for permitted participants to incur referendum spending without the permission of the "responsible person" on the Electoral Commission's books. If the local orange tribe invest in a spiffy new sets of referendum-specific banners and flags, have they the nous to inform their grand wizard back in HQ so they don't get into bother with the Electoral Commission? If they don't, their luckless official is potentially liable to a £5,000 fine. But seeing some of the amateurish advertising run up today on twitter, you've got to wonder.

When I was on Newsnicht, I argued that one of the challenges of the referendum legislation is that it snares individuals and organisations who won't be in the habit of picking up and interpreting tricky pieces of law, or even dreaming that their activities are regulated by them. After all, what does an eeny-weeny Naw referendum banner matter, when you're bringing it to a loyalist march which you've been attending, year in, year out, for the last decade? I imagine few of the folk trundling through Scotland today, bowler-hatted and tabarded, will have given any of this the slightest thought. Edward Hyde, the Lodge's responsible person, will just have to hope that his clementine-coloured fellow travellers haven't dumped him in it. There is also the small matter of the Public Order Act of 1936, which provides that:

"... any person who in any public place or at any public meeting wears uniform signifying his association with any political organisation or with the promotion of any political object shall be guilty of an offence."

That law must now be interpreted and applied in the light of the European Convention on Human Rights. But they look an awful lot like uniforms to me...

*Michael Greenwell.


  1. "If the Lodge was required to contribute towards the costs of administering their marches, in police time, that'd bust the bank, but they don't."

    Well they should! It's bad enough they're allowed to promote their bigotry without everyone else having to pay for it as well. Visiting my sister this weekend has reminded me of one of the reasons I was glad to move back to Aberdeen a few years ago (and I got my car wing mirror kicked off - strange how it was only my car, with the Yes sticker on it, which was vandalised...)

    1. Sorry to hear about your car.

      I'm divided on this one, Doug. Folk have a (qualified) right to gather, march and protest. The authorities ought to facilitate the exercise of that right and protect life, limb and property from being done over. More often than not, people who will want to take to the street to underline a political point are unlikely to be flush with cash -- should a Stop the War protest or the like be obliged to shell out for the policing implications of that, or face being banned? Are we comfortable with the idea of city councils deciding which occupations of public space they approve or disapprove of? I can't say that vision appeals to me.

    2. I agree with you - I would like if people are like-minded to celebrate ?Corpus Crhisti with a a parade round the Castlegate (there was the plan in Aberdeen at one point when I lived there); it is when a parade or expression of religious or political views becomes linked to violence that the problem occurs.
      I would not ban Orange Marches (though I am beyond not fond of them to - remembering being a teen - scared: got caught in one, wearing green and crucifix...it had been re-routed and I was looking for a bus home) but what to do.
      I am not sure how clearly the BTog No campaign has distanced themselves from the presumption of connections of the Orange Order to them.

  2. And this, dear Andrew, is why we all contributed to your little crowdfunding appeal. Tip top.

  3. Yep, you're worth every penny. But I do have a couple of questions:
    Who polices this?
    Does the Electoral Commission do it (if so, how)?
    If not, would they rely on complaints from the general public?
    The daft wee banners and vote naw stickers, is it their use or the date at which they were commissioned that makes them potentially liable as expenses?
    If it is us punters who has to make the complaints, how do we go about it, I'm all for bankrupting an organisation that still thinks it is acceptable to be openly sectarian (they could also do with a history lesson as well, but that's another story).

    1. A complex picture.

      The Commission have an oversight role and participants have duties to report to them - but on my understanding, the ordinary prosecution authorities are responsible for criminally sanctioning infractions under the 2013 Act. The Commission may also issue civil penalties for "campaign offences", covering the same territory of failure to observe the referendum strictures set down in the legislation. I imagine the Commission are fairly easy to get in touch with - they're bound to have an email address - but I doubt they'd be interested in a general, unevidenced imputation of wrongdoing.

  4. No doubt you are right as usual, but I wonder if this does not fall into the realm of 'Let sleeping gods lie'.

    I had a friend's seat at the Celtic v St Johnstone match last year at which an anti-Eck / anti-cop banner from the Green Brigade end was passed half way round the stadium and back by the fans. The stewards seemed to be thinking on occasion of making an attempt to get the banner - which I suppose may have breached a wee law - but let it go back to the Green Brigade, wisely abstaining from action.

    As it happens, the Green Brigade is a forceful advocate for Yes and so are a fair few of the Rangers fans I know. When it comes to voting, people will vote on perceived self- interest and i would guess the Powers are content to let some infringements pass, for fear of making things worse.

    1. There's sense to that, Edwin. I'm only stirring and keeping us legally informed.

    2. Amazing what they have been allowed to get away with, pausing to play their war music outside Catholic churches for example.

      A parallel could be drawn with many whites in the US south who claim to honour traditions (fantasies, as Mark Twain pointed out in the 19th century) drawn from misreadings of Scottish history as it happens.

      If people who live in Alabama are no longer allowed to dress in funny costumes and intimidate blacks, then why should people who live in Ayrshire be allowed to act in a similar way, intimidating Catholics?

      Of course in real history, the Pope lit up the Vatican to celebrate King Billy's victory at the Boyne, but history takes a back seat as usual.

      Excellent work LPW.

  5. Who is paying for the bus,bed and board of all the youngsters campaigning across Scotland for BT under the banner #ncsontour ?

    1. Elements of that kind of spending are caught by the 2013 Act. If it is a permitted participant doing so, (and heaven knows, it sounds expensive so they'd have to be), they'll have to account for their outgoings or face a spanking.

  6. I would have given you the whole photo without writing had you asked.

    You may also want to consider the Public Order Act 1936,

    Conditions about what can be carried during a procession - these conditions prohibit the carrying of halberds and weapons of any description shall be carried. They also prevent the display of banners, placards, flags and posters bearing inflammatory images or words; and

    Conditions about what can be worn during a procession - These conditions explain some of the other legislation which applies to the conduct of procession. They make clear that the terms of the Public Order Act 1936, in relation to the prohibition of the wearing of uniforms signifying association with political organisations, must be observed. They also provide that no paramilitaristic uniforms will be worn and that the terms of the Terrorism Act 2000, relating to membership and support of and fundraising for a proscribed organisation, must also be observed.

  7. 1936? That must have been in response to Mosley and the British Nazis. Definitely a more worrying time.

    1. Haven't looked into the legislative process in any detail -- but I shouldn't be surprised if the Blackshirts were partly what was aimed at (and probably Commies too). The Act has not, however, been repealed.