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.