Lallands Peat Worrier

#Indyref: Salmond's discreet legal concessions...

2012-01-25T15:28:00.001Z

Just a brief(ish!), instant reaction of Salmond's statement in Holyrood, launching the Scottish Government's consultation on the independence referendum. Last night, I had the opportunity to attend Alex Salmond's Hugo Young lecture at the Guardian in London. In the course of his address, Salmond said:

"... our starting point in all of this is that the Scottish Parliament ultimately has the mandate to determine the referendum process. Westminster legislation which dictates rather than enables would not just be unacceptable to the Scottish government. It would be contrary to the rights of the people of Scotland."

In the subsequent question and answer session, I managed to get my paws on the microphone, and asked the FM the following question (more or less). Salmond says the Scottish Government won't accept conditions being imposed by the Westminster government. We needn't be vague about what those conditions might be. Michael Moore's consultation includes a draft Order in Council, which would empower Holyrood to hold a referendum on independence, but which would explicitly rule out the possibility of Holyrood asking any second question about "devo-max", more powers, or all powers short of foreign affairs and defence. That being the case, it seems to me that the key question is: how committed are the SNP to having "more devolution" on the independence ballot? Practically speaking, would Salmond prefer (a) a simple yes-or-no independence referendum that is legally secure or (b) a multi-option referendum, including devolution-max, which would not enjoy legal security, and would almost certainly face legal challenges? While the First Minister's response was engaging, as he typically is when speaking extemporaneously, he neglected to furnish me with a direct answer to my specific question.

Perhaps today's consultation document from the SNP government would suggest a clearer clue? From the legal point of view, the first introductory chapter of the document has the greatest interest. Unsurprisingly, the Government remains bullish about the independence referendum's legislative competence. Even more strikingly, they distinguish between the legal uncertainty which might engulf an independence referendum - which if you read between the lines, they basically concede in this paper - and a referendum asking about "more devolution".

1.6 What is not in question is the competence of the Scottish Parliament to legislate for a referendum about changes to the powers of the Scottish Parliament within the framework of devolution. Legislation to hold a referendum on "devolution max" for example (see paragraph 1.25 below), is clearly within the existing powers of the Scottish Parliament.

Little ink has been expended on this blog or in the press about whether a devo-max referendum would be within the parliament's legislative competence or not. Presumably, the Scottish Government view is that since devo-max doesn't "relate to" the Union, it doesn't share the legal uncertainty surrounding the competence of an independence referendum. This isn't the place thoroughly to scrutinise this argument, but it is worth mentioning in passing that Schedule 5 of the Scotland Act 1998's list of reserved matters includes "the parliament of the United Kingdom", which is arguably implicated in a purposive interpretation of whether legislation "relates to" matters reserved to Westminster, making things rather more murky than this consultation document implies.

More immediately interestingly from a legal and political point of view, one conspicuous feature of this consultation is that the SNP have altered the proposed question. Take a look at the draft ballot paper: "Do you agree that Scotland should be an independent country?" A clear, concise, unambiguous question. Welcome for it. What is significant - very significant - is how and why the proposed question has changed since the party's first term in office in Holyrood. Back in 2005, the SNP were proposing to put the following referendum ballot to Scots: (Annex B)

The Scottish Parliament has decided to consult people in Scotland on the Scottish Government’s proposal to negotiate with the Government of the United Kingdom to achieve independence for Scotland:

Put a cross (X) in the appropriate box
I AGREE that the Scottish Government should negotiate a settlement with the Government of the United Kingdom so that Scotland becomes an independent state.

OR

I DO NOT AGREE that the Scottish Government should negotiate a settlement with the Government of the United Kingdom so that Scotland becomes an independent state.

An ugly, wrangling, lawyerly read, is it not? Befuddling, circuitous? Why do you think this was the case? Was it simply because Alex Salmond was keen on the language of negotiation, or feart about the words "independence", or "Union"? Not a bit of it. It reads like the work of a tortured pettifogger because the way this question was framed was almost entirely driven by legal considerations. Specifically, the Scottish Government knew and knows that the Scotland Act 1998 makes things tricky, and it was always going to be problematic to propose an independence referendum question which would not "relate to a reserved matter", when the Union and the Westminster parliament are explicitly reserved. The Scottish Goverment concede as much in paragraph 1.5 of today's consultation:

"The Scottish Parliament has the power to legislate for a referendum as long as that would not change any reserved law or relate to those aspects of the constitution which are reserved by the Scotland Act 1998. The referendum question proposed in 2010 was carefully phrased to comply with that requirement." (my emphasis)

If the "negotiations" question was posed that way because of legal considerations - why are the SNP now proposing the straightforward question that jettisons all of the cavil and conditionals which surrounded their early draft? Legally, nothing has changed. Holyrood today, in January 2012, has all of the powers it had when the "negotiations" question was framed early in the first term of the SNP minority government, and all of the limits to its powers, which generated that first, prolix referendum proposal.

On their own terms, despite their surface confidence and Alex Salmond's recent jurisprudential bafflegab, the SNP are basically conceding Holyrood does not have the power, at present, to pose a clear referendum question on independence. In that context, for them to propose a novel, direct question presupposes that the Scottish Government will cut a deal with Westminster on a section 30 order, which will dash the hopes of that monomaniacal Unionist litigant who has been haunting my thoughts this many years. Without such an order, on the Scottish Government's own view, they couldn't ask Scots if they "agree that Scotland should be an independent country?" This consultation assumes a deal will be made.

That being so, it is urgently relevant and interesting that the coalition seem to be intent on excluding any devo-max question, all or nothing. It may be that Michael Moore and his coalition cronies may be convinced to eliminate the draft s30 order's "one question" requirement, allowing a "more devolution" question to be put. That is a matter of resolve on their part. Assume, however, that collectively the coalition proves steely, and insist on a single question on independence being put if a s30 order is to be made. The question I asked Salmond yesterday night stands. Do you want a legally secure referendum on a clear independence question, or a multi-option referendum including devo-max which will be forced to ask an obscure question on independence negotiations, apt to bamboozle everyone, and susceptible to legal challenges?

Kinlochbervie Chronicle: Scots gold "worthless", experts claim

2012-01-25T12:40:00.002Z

No doubt several of you saw Alex Salmond being interviewed on Newsnight last night, attending to such vital matters of how Scotland would transfer its share of much depleted British gold stocks to Edinburgh. As ever, the plodding BBC trails behind the fleet-footed local press. Just yesterday, the Kinlochbervie Chronicle published the following....

Scots gold "worthless", experts claim
Ecclefechan Mackay (MA), Political Correspondent.

An independent Scotland would be forced to sell its gold bullion in a two for one deal with sport socks, it has been claimed. Whitehall sources have warned that the world's gold markets would "almost probably" shun the Scottish share of UK gold supplies if the country becomes independent, which would instead have to be "flogged by this guy I met down the pub who keeps an affordable line of foot-absorbers for the physically active in the back of his van. Could I tempt you with a pair?" Another senior figure told the Chronicle "although so-called Scottish gold shares all the same properties as real gold, is indistinguishable from real gold, we're confident that no one would touch it unless it was sold with a pair of icy-white sports socks at a recession-busting, not-entirely Kosher price. This is just basic economics."

This comes in the week that the Spanish government confirmed that it would not allow newly-independent Scots to borrow its treasure fleet to transfer the gold bullion from London to Edinburgh. Spanish Minister for Rapacious Imperial projects, Rubén Gómez Castellanos, told the Chronicle that "those tartan Catalans aren't touching a single plank of our fucking galleons."

SNP sources were quick to distance themselves from the Spanish Minister's claims, arguing that the Scottish Government were in the process of putting the "finishing touches" to their plans for the gold, and denyed that the Spanish had been approached. The First Minister's official spokesman said "our plans to transfer the gold using a well-shepherded south-to-north blackfaced sheep convoy are in their final stages. We've bought Stewart Stevenson a crook and a pair of walking boots and everything. This is just Unionist tapas-mongering, cooked up in London".

The Scottish Government plans have now been criticised by prominent transport commentators. Railway expert at the Polytoyn-B Research Institute, Jeremy Paxman, suggests that for "security reasons", an independent Scotland would be forced to build "some sort of armoured train or summink" to convoy the gold to the Scottish capitol. However, last week George Osborne, Chancellor of the Exchequer, indicated that an independent Scotland "may not be allowed" to use the wheel, promising that the UK treasury "vigorously enforce its intellectual property rights". It is understood that an armoured train unable to employ the wheel would be "uneconomically unviable", leaving Scots no option but to leave the gold in Bank of England vaults, and pay "at least ten million groats a year" for its storage, according to early estimates from Bank officials.

However, Scottish street vendors have expressed skepticism about the estimated losses caused by the casual selling of Scotland's national wealth on Sauchiehall Street. Wee Rab McGarry, 34, told the Chronicle: "The casual sock market is really picking up. Shifting a few gold bars oan toap of that? No bother, pal". McGarry was also asked to estimate the gold's retail price from that dank looking alley just off the Glasgow high street.

"Two for a pound, two for a pound", he said.

Cameron "takes his case to Strasbourg..."

2012-01-23T09:00:00.010Z

Is the European Court of Human Rights obsessively interventionist? I ask that question in a guest post published on the informative UK Human Rights blog yesterday. Over the weekend, the press reported that the Prime Minister intends to voyage to the Court's seat at Strasbourg, to outline his grand conception of what the institution's business should and should not be. Cue a great deal of humbug and misinformation about what this human rights tribunal actually gets up to, tinselled up with lurid references to murders, sex offenders, terrorists and sundry other dislikeables, whose litigation - real or just imagined - has vexed the eternally outraged consciences of the nation's tabloid newshounds.

Earlier this month, both the Daily Mail and the Telegraph uncritically parroted claims made by a report commissioned by backbench Tory MPs, suggesting that the UK loses three in four cases raised against it before the European Court. That this claim is easily-falsified bunkum seems to have troubled neither paper, who obligingly churned out the material, seemingly blinded by how comfortably the claims made sat beside their own skeptical analysis of alien "Europe" and human rights. Contra Mail and Telegraph claims that the UK is defeated in 75% of cases, the reality is that the Court finds against the UK in less than 2% of cases, and actually rejects 97% of applications lodged against the State as "inadmissible". That too raises interesting and challenging issues of how we conceptualise and understand what the European Court gets up to.

While outwith the typical ambit of commentary on this blog, I thought the substantial piece may be of interest to those of you who follow European politics, or are concerned about the institutional expression of human rights norms, and the rabid distortions perpetuated both calculatingly and cluelessly by the British media. Read my analysis in full here.

"Pettifogged".

2012-01-22T11:28:00.001Z

Not a word one often encounters in the national press, but I managed to smuggle it into a column in the Scotland on Sunday today, "No disguising the lack of women leading our judiciary". Regular readers will recognise the piece as an updated version of this blog of earlier this month, examining the likelihood that Lord Hamilton will be replaced by a woman as head of the Scottish judiciary, the first Lady President in the Supreme Courts' history. I took the opportunity to add a little more background information on the predicament faced by women with ambitions of emulating Portia at the beginning of the 20th Century.

Before 1919, women were disqualified by law from entering legal practice. An Act of Parliament eliminated these disqualifications, allowing Margaret Kidd to make history, as the first woman admitted to the Faculty of Advocates and called to the Bar in 1923. She was to go on to be the first female senior counsel in Britain - in those days, owing to the monarch, King's Counsel - and the first female Sheriff Principal to preside over a Scottish court. In point of fact, despite the general elimination of their disqualifications, Kidd remained the only woman in the Faculty for over twenty five years, until former journalist Isabel Sinclair was called in 1949. By 1979, only three women were in practice.

There's a lot more interesting work which could be done on gender and our legal professions - both contemporary, and historical. I'd rather like to engage more thoroughly with it myself, once my present project is killed off. Until then, you'll have to make do with this brief sketch...

Devolution-max: SNP consolation prize or political hammer?

2012-01-19T12:27:00.002Z

Locked in a peat-smoked bothy, worrying away on a particularly reluctant clod, I've been neglecting the affairs of the day. We had an interesting YouGov poll on independence, which I intend to pull to bits for your interest tomorrow. Today, I thought I'd say a word or two on the latest pettifoggery and cavil surrounding the independence referendum. In the House of Lords during the main stooshie last week, the Advocate General for Scotland, Jim Wallace, was asked by Lord Davidson of Glen Cova...

"...if the Scottish Government produce contrary legal advice regarding the legality of the referendum, will the Government take the issue to the Supreme Court?"

Quoth the noble Lord of Tanktop in reply, with all of the odious obsequieties expected in that House...

"The noble and learned Lord asked whether, if the Scottish Government produce conflicting legal advice, it would be referred to the Supreme Court. As he knows, the reference to the Supreme Court would fall on any legislation. The whole purpose of this consultation is to try to avoid that situation so that any legislation passed by the Scottish Parliament is within the competence of the Parliament because provision will have been made for it. That is the way of progressing in a mature and less rancorous way. It is in everyone's interest to avoid any legal uncertainty."

Emphasis mine. While Wallace's colleague, Michael Moore, has said that the UK Government would not attempt any legal challenge to Holyrood legislation authorising a referendum. Wallace's statement, by contrast, at least still countenances the possibility. Given Moore's ditheriness, and the range of wrangling interests pulling the coalition this way and that, I doubt too much stock should be put in whatever view the Secretary of State happens to be entertaining today. This was followed up by a piece in the Scotsman, in which Wallace kept open the possibility of litigation, to spike an SNP referendum, if the transfer of powers (with or without conditions) cannot be agreed between the parliaments. Wallace:

"said Attorney General Dominic Grieve would have a legal duty to consider a challenge to Scottish legislation if it was outside Scottish Parliament powers. And while he fell short of saying he would take the matter to the Supreme Court, his stark language was seen as a clear signal that he would. He also warned that a third party almost certainly would make the challenge."

So three questions suggest themselves, one legal, the second two political. Just what could Jim do, legally? What are the chances of UK law officers mounting a challenge to the Act, and if they do mount a challenge, who suffers politically?

First, the legalities. What powers do Wallace and the UK law officers enjoy? Under the Scotland Act, there are a series of legalistic hurdles new pieces of legislation have to bound over. First up, a member of the Scottish Executive "shall, on or before introduction of the Bill in the Parliament, state that in his view the provisions of the Bill would be within the legislative competence" of Holyrood. I dare say Salmond will be able to rustle up one of those. Secondly, the Presiding Officer, Tricia Marwick, will also have to "decide whether or not in [her] view the provisions of the Bill" would be competent, and will receive independent legal advice. Assuming that the SNP's Bill manages to o'erleap these two potential obstructions, and a majority of the parliament support the proposal when it comes to a vote, the Bill still has to be presented to Lizzie Windsor for her "Royal assent". In the days of the old Parliament of Scotland, this was indicated by the monarch's proxy touching the Act with the royal sceptre. No such grandiose gestures these days.

But here's where it gets potentially interesting, depending on Lord Jim's nerves. After Holyrood has passed an Act, the Advocate General (Wallace himself), the Lord Advocate (Frank Mulholland) or the Attorney General (Dominic Grieve) have a period of only four weeks in which they may make a direct "reference" to the UK Supreme Court, authoritatively to determine the Act's legislative competence before it is assented to by the monarch and is able to come into force. The upshot being that UK law officers would have to decide what to do with themselves within a month of Holyrood legislating for a referendum, and we'll all know when four weeks are up. Thereafter, we only have to contend with the prospect of a dogged lone litigant, who wouldn't have the luxury of starting proceedings in so exalted a tribunal, and like other cases, would likely take a couple of years to work its way up the Scottish judicial hierarchy of appeals before it reached London.

So those are the laws. What are the chances Wallace or Grieve will avail themselves of them? Given the UK government's very public, and very categorical insistence that Holyrood's independence legislation would be wi' oot a doot unlawful, superheated by rule of law rhetoric, it looks increasingly difficult for them to avoid suing. Having calumniated Nationalist brigands in Holyrood for reaving across the borders into Westminster's exclusive competence, and making off with a clutch of powers without so much as a by your leave, what self respecting proprietor merely shrugs, and sighs, and consoles himself. "Oh well, I have other powers", rather than hot trodding after them?

There are also other relevant calculations. Say Jim sits on his brief and doesn't challenge the Act before the Supreme Court. Do we avoid a damaging legal challenge? Not a bit of it, with lone litigants still hovering and likely to challenge the law, arresting referendum progress. From a timing point of view, and the desire to avoid gloopily protracted litigation, an intervention by one of the UK law officers is just about the only way of being sure of avoiding judicial procrastination (apart from a successful section 30 order under the Scotland Act, to buttress Holyrood's powers). Not to challenge the Act makes is to permit a much more protracted obstruction of the process, and the UK government has to be frank with itself about that.

The snag? Political, unsurprisingly. Specifically, how any such intervention would be received by the Scottish press and the public. At first sight, there is promising material here for the Nationalist. On the "legal" side of things, and the scope of Holyrood's legislative competence, most folk haven't the foggiest one way or the other. This being the case, it would be potentially tricky for Liberal and Tory Westminster politicians to characterise their vires "challenge" in a politically defensible way. "We shall fight to the last ditch, to uphold our interpretation of s29 of the Scotland Act 1998" is not a motto for heroes. It's also significant that the press have generally avoided even trying to cover the legal arguments in any detail. This seems unlikely to change. That being the case, there's a real risk that any legal challenge be seen as a purely technical pretext for Tory meddling. As we saw with David Cameron's sally and retreat, even the suggestion of tinkering or imperious treatment of Scottish interests prompted a scorching reaction. Imagine, then, what most folk would make of a full-blown court case launched by a Tory-lead government, pursuing a point of principle on an obscure legal topic controversy nobody will be emotionally engaged by?

On the other hand, for the Nationalist, things have changed. Despite Cameron's gawkish contributions, the coalition has full-throatedly argued its case that without fixing the devolved settlement, the SNP referendum faces legal challenge. The public may not have imbibed that point, but the hacks undoubtedly will have. Manipulative though they are being, the UK government's section 30 order undoubtedly provides a way out of this potential legal morass. However, the precise terms of Moore's Order in Council will have to be agreed not just by Westminster, but by Holyrood as well, which for all intents and purposes, now means the SNP majority.

What will it do? If the SNP reject Moore's Order, and their referendum Act is waylaid by legal challenges, either from Wallace or a member of the public, wouldn't the Nationalists be particularly susceptible to "told you so" stories, and a rather less sympathetic reading of their predicament? Isn't there a risk that Salmond looks rather absurd, if his cast-iron insistence that the referendum Bill would be competent is placed under much sharper scrutiny by Lords Reed, Hope and the other Justices of the Supreme Court? And what would the UK government do anyway? Leave the SNP twisting in the wind? Scheme up some intervention? Shrug? Despite the real difficulties which mounting a legal challenge would seem to cause for the coalition, with the UK government's change of tune, and aggressive challenge to Holyrood's legal competence to hold any referendum on independence or more devolution, a legal challenge must be a much less attractive political outcome for the calculating Nationalist than once it was.

It strikes me, however, that the coalition may have seriously blundered, and given Nationalists potential cover to reject his section 30 order and its conditions, while staying on the right side of public opinion and - egad - even pursuing a point of principle. Say that the coalition insist on the terms of their draft Order, which would disallow any "devolution-max" question on a independence referendum ballot. We also know that "more powers" will be a popular (arguably the popular) option. The case for its inclusion will be significantly strengthened by various partisan and non-partisan, quoteable persons from across Scottish public life, who envisage greater devolution as an attractive alternative to independence, and who are persuaded of the virtue of asking about it during the referendum process. Say too that the SNP leadership are absolutely determined to have a "more powers" option on the paper, and refuse to endorse the coalition scheme. SNP rejection of the section 30 Order securing the legality of the referendum would be problematic if it looked partisan, surly or pointless. However, by trying to kill off devolution max, and confine the SNP to a "yes or no" referendum, the coalition have given the Nationalists a clear, credible and substantive reason for rejecting the Order. You can almost hear Alex Salmond now...

"The SNP is committed to representing the interests of the Scottish people. It is clear that a large section of our community wishes to be able to express their will on the Scottish Parliament taking on more powers. As democrats, we believe it is the right of the people to decide for themselves how they are governed, and that it is absolutely their right to have a "devo max" question on the ballot paper. David Cameron and Michael Moore disagree, and presume to tell Scots what referendums they can and cannot have, what questions they can and cannot answer about their lives and their futures. We disagree. That's why we cannot accept the Tory-lead government's attempt to impose their will on the people of Scotland, and why we will be bringing forward our referendum with two questions, one on independence, one on devo max, to give the people of Scotland their say on their future."

It would be profoundly difficult to cast this sort of reasoning as stubborn and purposeless obstructionism. Now, it may be that the desire to see "more devolution" on the ballot will morph Moore's initial draft Order into a shape that doesn't require a simple "yes-or-no" independence question. If not, however, then devo-max need not just be a consolation prize for disappointed nationalist seeking independence. Given its popular support, it becomes a pretty effective political hammer with which to clobber the continuing inelegant machinations of the UK coalition on Scotland's constitutional future.

Glasgow MSPs on same-sex marriage Vol II.

2012-01-15T10:57:00.001Z

Further to my post of early January, cataloguing the views of Ruth Davidson, Patrick Harvie and ~~Anne McTaggart~~ the Labour Party on same sex marriage, I have since received a couple of additional responses from Glaswegian MSPs. Still nowt from Nicola Sturgeon, Hanzala Malik (Labour) or Bob Doris (SNP). First up, Labour's Drew Smith (one of the tender little fellows, accidentally elected after Labour's unforeseen Glasgow-gubbing in May). In stark contrast with the chary huffing and puffing of the "suggested response" drafted by Jackie Baillie for Labour MSPs unable to compose their own opinions, never mind their own correspondence, Drew's reply has the virtue of frankness:

Drew Smith

Thank you for your recent e-mail regarding same-sex marriage in Scotland.

I am proud of the Labour Party’s strong record on LGBT equality issues. In our 2011 election manifesto, Scottish Labour pledged to consult on equalising marriage rights for all, with a view to introducing a bill on marriage equality. I therefore welcomed the initiative of the Scottish Government in consulting on the issue towards the end of last year.

I added my name in support of the amendment in the name of Patrick Harvie MSP to the motion on this subject which was lodged by John Mason MSP, and I have copied both below for your information. You will be aware that there has been some fear amongst religious groups that equalising marriage rights would impact upon their religious freedoms and I would therefore support the rights of faith bodies to either allow or disallow religious marriage ceremonies to take place in accordance with their own beliefs.

There are some other elements of change which also need to be considered such as how we achieve and ensure equality for transgender people and a further argument has been made that civil partnerships should be extended to heterosexual couple, which I am also sympathetic to. Now that consultation has ended, the position that I take will be informed by the views which have been expressed.

In summary, I do support marriage equality and I would like to see the SNP government bring forward measures to obtain it speedily. Thanks once again for taking the time to raise this important issue with me.

Kind regards,

Drew Smith MSP
Glasgow

After the delaying intervention of digital gremlins making mischief in the Scottish Parliament's web vaults, the SNP's Humza Yousaf sent me the following rather circumspect, rather less direct, epistle...

Humza Yousaf
Thank you for your email concerning the Scottish Government’s consultation “The Registration of Civil Partnerships: Same Sex Marriage”

I appreciate the range of views on this important matter and it is clear that you are passionate about this issue. It is important at this point to stress that the now the consultation has closed the Government will take a view on how to proceed and a further consultation will ensue.

As an elected member I am keen to hear as wide a range of views as possible from those I represent. As a result I have met with various faith groups and equality groups such as Stonewall Scotland.

Ministers have said they tend towards the view that same sex marriage should be introduced with the recognition that for religious reasons some faith groups may not want to solemnise same sex marriages, and should not be obliged to do so. I think those safeguards are important for faith organisation be they Churches, Synagogues or Mosques. However, I am also a passionate believer in religious freedom, which of course 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

Once again thank you for getting in touch.

Humza Yousaf MSP
MSP for Glasgow

Is "the thistle of Scottish political drama" flourishing?

2012-01-13T12:18:00.003Z

Two shows on the telly, apparently unconnected. The first, The Cheviot, the Stag and the Black, Black Oil was broadcast on BBC Alba the other night, while two episodes of the second, Borgen, were shown on BBC4. The Cheviot was written by John McGrath and performed across Scotland during the 1970s by the 7:84 theatre company. Unfortunately, the play hasn't been made available on iplayer to view again, for those who missed it. By contrast, Borgen is a Danish political drama from the folk behind The Killing, focussing on the struggles and machinations of Birgitte Nyborg, a political leader in Denmark's proportional electoral system just before and in the aftermath of a general election.

So what is the connection? I've been thinking lately about Scottish political drama, whether on telly or on stage, and both Borgen and The Cheviot speak to that interest in their distinct ways. "What is it that makes Scotland a place with such a fertile soil for the thistle of political theatre to flourish?" asks Oran Mor's David MacLellan in a blog for the National Theatre of Scotland. Serendipitously, MacLellan also starred in the 7:84 production of the Cheviot. The piece was written in anticipation of an event held in the parliament in the middle of December past, discussing Scottish theatre and politics. MacLellan's piece is brief, and I didn't attend the subsequent discussion, but is worth briefly examining for the highly characteristic (and in my view, profoundly flawed) account of Scottish social class it promotes. Its general features ought to be familiar to most of you.

MacLellan's takes it for granted that Scotland is a fertile site for political theatre, and offers an account of why he believes it to be so. His basic thesis appears to be that political theatre would be inhibited by a dominant bourgeoisie, envisaged as individualistic, selfish, thirled to authority and clergy (blame the Episcopalians!). Social class in Scotland, suggests MacLellan, is like a stick of rock. If you chip off the thin, shiny gloss of the middle classes, you discover within a rich, telling seam of working class authenticity. And insofar as there is a discernible bourgeoisie in Scotland, it is self-involved, sparrow-sized, and inauthentic. He writes...

"Class differences between Scotland and England could hardly be more pronounced. Scotland is essentially a working class country where the terms yeoman or gentry have no resonance. Our middle class has historically always been very small and, if it multiplied to some extent during the 19th century, the strangulated vowels of Kelvinside and Morningside are testimony to its collective insecurity. Scratch the average middle class Scot outside Edinburgh’s New Town legal fraternity and you will find within a very few generations a product of the working class. Add to this largely proletarian stew the seasoning of Calvinism, where the individual may converse with God on equal terms without the mediation of Bishop or priest, and you have the beginnings of an audience receptive to ideas, who share a view that there is such a thing as society and who have a personal, ethical and political interest in its outcomes."

I was immediately reminded of Christopher Whyte's notion of the "textual invisibility" of the Scottish middle classes, as enthusiastic producers and consumers of fictions in which they are not represented, their significance denied, minimised, marginalised. We needn't look too far to find recent political examples of this curiosity at work. Quoth Whyte...

"One may posit a demand on the part of the Scottish middle class for fictional representations from which it is itself excluded; a demand, in other words, for textual invisibility. This would connect with the widespread perception of the Scottish middle classes as 'denationalised', as less Scottish in terms of speech and social practice than the lower classes. The task of embodying and transmitting Scottishness is, as it were, devolved to the unemployed, the socially underprivileged, in both actual and representational contexts."

One is immediately struck by how hackneyed and implausible MacLellan's account of the Scottish bourgeoisie is. The "legal fraternity in the New Town"? In terms of members of the Faculty of Advocates, and of the High Courts, we're talking about around 1,000 people at most. Only a handful of those could afford to stay in the stately Georgian homes in the New Town, or derive from families who've been in the law for generations. That's the "unscratchable" bourgeoisie in a nation of over 5,000,000? It's an absurdity. Interestingly, such simple images are, I find, familiar stock-stuff. In the Ken Stott adaptation of Ian Rankin's The Black Book, Inspector Rebus investigates, amongst others, a patrician Edinburgh MSP Daniel Raeburn. I haven't read the book, but on the telly, Raeburn is played by David Robb, who specialises bourgeois characters running from the suave to the stern; barristers, army officers - and in his youth, the ill-fated Germanicus in I Claudius (1976). A privileged scion of the New Town, Raeburn cuts a respectable, stuffy figure, boasting an ambitious, cold-eyed and haughty gin-wife, and bears no discernible resemblance to any contemporary Scottish politician I can think of. He is a hackneyed echo of some pre-1997 Tories perhaps, but difficult to envisage in Holyrood as is.

So what makes something like Borgen possible, but a Scottish equivalent difficult to envisage? Denmark, a country of five million people, with a unicameral national parliament, seating 179 MPs is not obviously more interesting than Scotland. Perhaps it is a question of Holyrood lacking the political maturity required to envisage counterfactual alternative stories and a perceived lack of drama in the histories which have actually unfolded since 1998, discouraging pieces like the Blair-Brown inspired The Deal (2003) or the New Labour spin-inspired The Thick of It from Armando Ianucci. Put it another way. What sort of character could a dramatic, fictional First Minister be? What sources of narrative, of tension, corruption and struggle might one identify in the Scottish political landscape?

Could it be that one of our problems - encouraged by the theory being propounded by MacLellan and those who share his opinion - is that we don't talk about Scottish elites these days, their incestuous connections, throttled by the suffocating assumption that everyone is basically decent and well-intentioned? How can one develop a political theatre, when we're all pretending to be Jock Tamson's bairns, and our humanitarian banalities serve mostly to obscure from us the extent to which our egalitarianism is a fond, self-serving fantasy? How can one critically engage through drama with questions of who holds power in Scotland, if the producers of the dramatic refuse to see Scotland's bourgeoisie as anything but proletarians in none-too-convincing costumes, a small cast of peripheral characters with background parts, non-speaking roles and little influence? To put the argument at its most provocative, surely, contra MacLellan, the really interesting question is why contemporary Scotland doesn't have political drama (in both the institutional and, arguably the broader senses), and what we might do about it?

UK Ministers put the Union "to the touch, to win or lose it all"?

2012-01-10T20:17:00.002Z

Popular legal politics is a tricky business. Without denigrating the wisdom of crowds, or underestimating the faculties of the public, you can comfortably bet your last shilling that the majority of the population won't have read the law you are proposing or opposing. Politicians and press - sometimes understandably, sometimes self-servingly and often just ignorantly - gloss the issues, talk about some aspects and not others, peddle particular images and endlessly repeat comprehensible scenarios, to demonstrate what their laws will do. Whether or not they align with a proper interpretation of the underlying law, these images gain and maintain far more purchase on the public imagination.

Days before Christmas, the BBC brought us rumours from Whitehall that the Westminster government was likely to use powers conferred under the Scotland Act 1998 to eliminate the very real legal dubiety surrounding Holyrood's power to hold any referendum on Scottish independence under the law as it stands. However you might hope or believe such litigation would be resolved, it has been clear for a good while that any such challenge would very likely delay the referendum being conducted - potentially for years, if unremedied before Holyrood legislated for a referendum to take place. Just last week, I welcomed this development as a way of ensuring the referendum didn't get waylaid in the courts, but suggested that things would get politically...

"spicier if Michael Moore fancies himself for a cunning so-and-so, and he and his colleagues lose sight of their primary aim, and try to use a section 30 order to politick in their own preferences for an early referendum poll, by time-limiting the referendum competence to 2013, 2014 or the like".

As it happens, I picked the wrong Machiavel, and it was actually David Cameron who clumsily and predictably lost sight of what ought to have been the government's essential goal - ensuring the referendum could take place without unnecessary judicial deliberations - and tried to ~~weasel in~~ give the heroic impression he intended to impose conditions, play the tough guy, and pander to cock-eyed Cochers and his ilk by "taking the fight" to the perfidious Nats. Thanks in great part to Nationalist unwavering insistence that they have the power to call a referendum under the Scotland Act as is, aided and abetted over the years by pronouncements from Wendy Alexander and the Prime Minister himself, hitherto, the Scottish public discourse has been almost exclusively dominated by the idea that law presents no impediment to Holyrood holding an independence referendum on its own motion, no bother. For years, most have shrugged or poo-pooed the importance of the legal arguments, if they were even aware of them. As such, is it surprising that Cameron's sudden intervention was understood in the hostile way it was, stirring up old political sensations? Absent any consciousness that technical legal fixing was called for, it looked like high-handed and presumptuous meddling. As the miffed Alex Massie had it...

"Cameron says he does not wish to "dictate" anything to Scotland. Nothing, that is, except the timing and questioning of the referendum to determine the country's future."

Given today's statement in the House of Commons and consultation document from the Secretary of State for Scotland, Cameron's gambit looks doubly ill-judged. Instead of fierce imposition of a referendum question hostile to nationalism, to be asked in the next year, Moore coolly outlined a consultation, talking about moderation, sense and constructive co-participation in a serious process. For the first time, Michael Moore unflinchingly outlined Her Majesty's Government's belief that Holyrood is legally incapable of holding an independence referendum. His reasoning is essentially identical to that I outlined in this blog. So what does he propose? Moore is minded to use a s30 Order under the Scotland Act 1998 to provide for a referendum on Scottish independence to take place. Before the final terms of such an Order are adopted, he intends to hold a consultation on "Scotland's constitutional future", closing on the 9th of March. The full document he has produced can be consulted here, including the draft Order across pages twenty two and twenty three. For brevity's sake, I won't discuss all of its contents now, but will instead focus briefly on one - tactically fascinating - element of it.

Perhaps the most striking feature of this draft Order is that it would explicitly rule-out the Scottish Government asking any "devo-max" type question alongside "full independence". How precisely? The Coalition's proposed s5A amendment to Schedule 5 of the Scotland Act reads as follows:

“5A.—(1) Paragraph 1 does not reserve a referendum on the independence of Scotland from the rest of the United Kingdom if the following requirements are met.
(2) The date of the poll at the referendum must not be the date of the poll at any other referendum held under provision made by the Parliament.
(3) The date of the poll at the referendum must be no later than ***.
(4) There must be only one ballot paper at the referendum, and the ballot paper must give the voter a choice between only two responses.
(5) The persons entitled to vote in the referendum must be the persons who would be entitled to vote in an election for membership of the Parliament—
(a) if one were held on the date of the poll at the referendum, or
(b) if one were held on that date but alterations made in a register of electors after a particular date were disregarded.
(6) The referendum and arrangements in connection with it must be in accordance with Part 7 of the Political Parties, Elections and Referendums Act 2000 (referendums) as if the referendum were within section 101(2) of that Act, subject to any modifications specified in subordinate legislation.”

That last section refers to the participation of the Electoral Commission in the referendum process. This includes extensive provisions potentially placing limits on the amounts of money participants can throw at the referendum. For devo-max, and those keen on the idea of having it on the ballot, section 5A(4) is crucial. Assuming agreement where none necessarily exists, it would obviously prove invidious to ask the Scottish public "Do you want independence or devo-max?". Any referendum which countenances the inclusion of a "devo-max" type question would require at least two questions, or one question and three options: independence, devo-max or the status quo. This draft Order explicitly seeks explicitly to exclude any poll structured either of these ways. "There must be only one ballot paper at the referendum, and the ballot paper must give the voter a choice between only two responses".

For those who have argued that defining this centre-ground of more devolution would vitally determine the outcome of the referendum, increasingly, it appears as if we may find ourselves presented with an either/or question. Independence or nowt. As I have argued before, how you respond to this predicament likely depends on whether you regard independence as unwinnable at the present time, or whether you believe folk can be persuaded by the right configuration of advocacy and luck. If the former, you'll be cursing blackly and hoping Holyrood repel whatever final Order Moore comes up with, and "more powers" somehow finds its way onto the SNP's ballot. For those, by contrast, who suspect that having devo-max option on the paper diminishes the appeal of independence - and there is some polling which supports this analysis - the prospect of a clear yes-or-no referendum is more liable to be attractive.

Not so, one imagines, for those folk in Labour, Liberal and Tory parties, who saw the promise of making a positive "devo-max" Unionist case as the best basis for arguing against Scottish independence. Instead of cataloguing the terrors which an independent Scotland would be assailed by, dominated by the negative Grinchly campaign spirit of "No", Malcolm Chisholm and others were clearly beginning to envisage articulating a median position to rebuff the potential that Scotland votes to become independence. Perhaps the most significant aspect of today's statement is that Moore is proposing to deprive them of that argument, relying instead on a "positive case for the Union" to be made without suggesting any positive changes to the Union. While the consultation may well vary the final terms of the Order, it presents a real tactical challenge to Unionists who hoped to oppose the change the SNP is proposing with meaningful change of their own.

On another interpretation, Moore's desire for binary resolution of Scotland's constitutional future could be seen as a decidedly risky expression of confidence that the case for the Union remains "axiomatic" in Scotland. While his tone today was temperate where Cameron was provocative, it may well be that the improbable Michael Moore's quiet intervention will be responsible, for Unionists and Nationalists both, for making this a referendum ruled by the gambling spirit of James Graham, the 1st Marquess of Montrose: "He either fears his fate too much, Or his deserts are small, That puts it not unto the touch, To win or lose it all..."

WANTED: Lord (or Lady) President Would-Be...

2012-01-06T12:36:00.004Z

Are you a legal enthusiast? Do you look fetching in horsehair knits? Can you carry off outmoded, stoat-edged outfits, with nary a squirm of self-consciousness? Then the Lord Presidency may be for you! In September, Lord Hamilton, appointed Lord President of the Court of Session and Lord Justice General in 2005, announced that he intends to retire in early June 2012. Yesterday, the Scottish Government announced the process and the personnel who will select Hamilton's successor. The office itself is an ancient one, originating in the early 16th Century. Time for a wee historical interlude, courtesy of erstwhile Lord President, Lord Hope of Craighead...

"Scots common law was developed in the institutions that the Kings adopted for the government of the realm, the Privy Council and Parliament. Parliament had acquired a role as a court as well as that of a legislature, although it did not sit very often. Its civil jurisdiction was as a court of review and of first instance. The Privy Council had been developed into a central court by the institution of “sessions” to hear causes and complaints, to the gradual relief of Parliament. The roll of civil causes in Parliament was reduced by increasing activity in a separate institution which became known as the Council and Session. During the reign of James IV it became the practice to appoint to the Council men who had been specially recruited to deal with judicial business. By the time of his death there was a core of eight ecclesiastics and nine learned laymen on the Council. They were known as the Lords of Session. The procedure of the Council was Romano-canonical, and the absence of an organised secular legal profession made Scots common law open to influence from Continental civil law in the form of the ius commune. Then in 1531 Pope Clement VII issued a bull narrating that James V intended to found a College of Justice in Scotland. He called on the bishops to contribute funds to its support.

In 1532, the money having been forthcoming, effect was given to this initiative by the Parliament. It enacted a measure instituting a new supreme civil court, the Court of Session, over which the Lord Chancellor of Scotland was to preside if he was present, and on which Lords from the King’s Council were appointed to sit. In the ratifying Act of 1541 the College of Justice was described as having a President and fourteen ordinary Senators. This nomenclature survives to the present day. Judges of the Court of Session are still known as Senators of the College of Justice, and the Head of the Court is known as the Lord President. The Judges, including the Lord President, are still referred to collectively as the Lords of Council and Session. It is for this reason that they assume the judicial title of Lord, or Lady, on their appointment to the Court of Session bench." ~ Lord Hope's King James Lecture.

So what can candidates expect? During Hamilton's tenure, the office has evolved substantially. One of the the SNP minority government's earlier pieces of legislation, the Judiciary and Courts (Scotland) Act of 2008, remodelled the Scottish judiciary along partly English-inspired lines. In its Policy Memorandum, the Scottish Government argued...

"The office of Lord President is of ancient origin, dating from the institution of the College of Justice in 1532. The role of the office is largely undefined in statute. While the status of the Lord President as Scotland’s pre-eminent judge is universally respected by the judiciary and by the legal profession, both at home and abroad, the office differs from the comparable office (often known as “Chief Justice”) in other jurisdictions in that it does not have responsibility for all the courts, and indeed all branches of the judiciary, within Scotland. "

As a consequence, in addition to presiding over the Courts of Session and Justiciary, the Lord President is now head of the whole body of judges in the realm, responsible for making and maintaining arrangements for securing the efficient disposal of business in the Scottish courts, representing the views of the Scottish judiciary, making and maintaining appropriate arrangements for the welfare, training and guidance of judicial office holders. For these labours, the President receives an annual salary of some £214,165.

So who will it be? Not being embedded in the Scottish legal world, or privy to its gossip, I have no juicy insights to share. A few general points can be made, however, based on information in the public domain. Being stern adherents to the principle nemo iudex in sua causa, by sitting on the appointment panel, we can exclude Lady Dorrian's and Lord Hardie's candidacies for the Presidency. Similarly, Lord Reed may also be discounted, lately having been appointed a Justice of the UK Supreme Court. Excluding these judges, the pool of potentially eligible Senators decreases to thirty in number. Might the appointment panel look elsewhere? Certainly, there are precedents. Take Lord Hope, for example, who was appointed as judge and Lord President of the Court in 1989, direct from the Bar. Tragically, however, I don't meet the minimum qualifications myself, so I shan't be donning my own burgundy mackintosh and deliberative peruke any time soon.

There has never been a Lady President of the Court of Session. What are the chances of a female appointment this time around? Statistically slender. While theoretically, a large number of candidates satisfy the minimum qualifications, given recent practice, we might expect the Lord or Lady President to be selected from within the current membership of the Court of Session. Of the thirty-four senators of the College of Justice, only five are women: Ladies Paton, Dorrian, Smith, Clark and Stacey. That's only 14.7% of Scotland's senior bench. Of Scotland's six sheriffdoms, Mhairi Stephen of the Lothian and Borders is the sole (but not the first) female Sheriff Principal, appointed in May 2011.

More generally, of the 142 permanent sheriffs presiding over courts across the country, only thirty are women - just 21% of Scotland's shrieval bench. And if we look at senior practitioners in the Faculty of Advocates who might be eligible for the job? The gross gender imbalance prevails. Of the 116 currently practising advocates who have "taken silk" as QCs, just 21 are women, or 18% of Scottish senior counsel. Nor, at the younger end of the profession, do we see consistently greater gender balance. Of the twelve fresh-faced advocates called to the Bar in 2011, three are women. Of the ten in 2010, four. At this stately pace, Scotland seems likely to retain only Lords President and an overwhelmingly male bench of Lords of Council and Session for a great many years to come yet.

Michael Moore's Machiavelli impression?

2012-01-04T13:14:00.000Z

Whether sweeping up spent prickles from your tree, or avoiding garotting yourself as you tidy away the tinsel, the inevitable post-Christmas tidy-up tends to unearth things overlooked or forgotten during the Festive season. As it is for the mouldering mince-pie, so too with British constitutional politics. Just before Christmas, the BBC reported that "Westminster could hand Holyrood the legal power to run a Scottish independence referendum" by employing a "special clause" in the Scotland Act 1998. Unhelpfully, this Whitehall scuttlebutt was reported in the same breath as House of Lord amendments to the Scotland Bill were discussed, creating a potentially misleading impression that the two processes were the same. They're not.

Actually, there is nothing particularly "special" about section 30. It allows UK ministers to alter the list of matters reserved to Westminster's exclusive competence by means of a statutory instrument - an Order in Council. This ability to transfer powers to and from Holyrood is autonomous from the Scotland Bill, presently at its committee stage in the House of Lords. While a section 30 order does not require full legislation, its terms would have to be agreed to by both Houses of Parliament and by Holyrood. According to the Scotland Office, the first decade of devolution saw 168 orders of this kind made. As usual, the story revealed the confusing range of simultaneously-held ideas about the legality of an independence referendum, exemplified to a great extent by this befuddled New Year's disquisition from Herald columnist Andrew McKie, who writes...

"The Scottish Secretary, Michael Moore, used his New Year message (is the idea that there should be such a thing not ludicrously self-important?) to press the Scottish Government for details. He's right to do so, both from the point of view of the political strategy of the Unionist parties, which is to get the referendum held as soon as possible, while the answer is still likely to be "No", and in the strict constitutional sense that it's in both Westminster and Holyrood's interests to get the wording of the question and the legalistic niceties of whether the vote is binding tidied up beyond dispute, so that we can all know what we're voting on.

But the Nationalists are quite right to point out that, though important, much of this is hair-splitting. It is politically impossible to imagine that a decisive vote for full independence would not lead to just that, or to contest the right of the Scottish people to conduct such a vote, even if it is technically a reserved power and regarded as merely 'consultative'."

If Holyrood has the power to hold a referendum on independence, why would London be handing it to the Scottish Parliament? If, by contrast, Holyrood didn't have the legal authority to organise a plebiscite, as the story presupposes, why the devil aren't journalists asking more searching questions about the dominant assumption that no legal problems exist, and Holyrood's proposed referendum is clearly legal? Moreover, if there is a potential legal problem, why do folk seem to think it is a mere "technicality" which Salmond could casually ignore if so minded? Isn't that a rather concerning notion to promote in a democracy of laws? Remember Cadder. The issues in the two potential controversies obviously differ, one concerned with the fundamental rights of criminal suspects, the other with Holyrood's ability to legislate when "reserved matters" such as the Union are in play. Despite this, the UK Supreme Court's decision in Cadder ought to be politically instructive. Holyrood's legislative capacity is limited by other laws, will be subject to the review of our courts, and its Acts can be stayed, stopped and overturned if they cross the thresholds of their powers. Hardly "mere" technicalities.

Yet another familiar but utterly perplexing line of argument suggests that only Westminster can hold a "legally binding" poll, as opposed to Holyrood's merely "consultative" referendum, and should do so. But stay a moment there. If Westminster is a sovereign parliament, free to change any law it wishes and unfettered by its own past Acts, in what respect can any referendum passed by it be said to be "legally binding"? Binding who, and to what? Michael Forsyth suggested to the BBC that...

"Who actually runs it is irrelevant. What matters is that we have a properly conducted campaign, that we have it properly supervised by the Electoral Commission, and that the result is binding, so that if people vote for independence that is exactly what will happen, and that we end this uncertainty which is so damaging to Scotland's financial interests as soon as possible."

Sleekit bunkum. If you subscribe to the constitutional theory of a sovereign parliament, there can be no such thing as a legally binding referendum. Of course, that is not to say de facto that any referendum result would be ignored, or could be as a matter of democratic practice; merely that there is no space for de jure binding referendums in the British constitutional tradition. So what do folk mean by a "binding" vote anyway? An alternative way of interpreting the idea - as McKie half-seems to - envisages a referendum as being "binding" when its conduct is buttressed from any legal challenge by any member of the public on grounds of legislative competence. However, on this interpretation, the core distinction between the "binding" and the "merely consultative" becomes basically unintelligible. To talk about a "binding" Westminster referendum in this sense, and contrast the idea with Holyrood's merely "consultative" vote, is as fishy as a blushing mullet, and a nonsense pretext for Unionist politicians to presume to fiddle with the referendum's timing and question. But then, what should one expect from the ever-serpentine Forsyth?

That said, it isn't surprising to hear that London are considering their opinions to prevent the referendum being challenged, likely to their own palpable disadvantage. I gather that similar discussions have been held behind the arras of St Andrews House too. In public at least, the SNP has clearly set its face against conceding anything less than the Scottish Government's perfect legal competence to hold the independence referendum. A brave face, but unconvincing for all that. Whatever one's view about how any court case on the referendum might finally be determined, it is clear that under its existing powers, Holyrood is not able to ask a "clear yes or no" question on independence, nor will a referendum asking its current, circumlocutory question about negotiating "a settlement with so that Scotland becomes an independent state" - be safe from legal challenge by a lone but committed litigant, with money to spend and a will to spend it. Neither of these facts are ideal, and a section 30 order could eliminate both the ponderousness of the proposed language and the connected and substantial risks of litigation and delay.

I have previously suggested that the same task might be achieved by laying amendments to the Scotland Bill. However, this relies on the assumption that Holyrood will give its legislative consent to the draft law: a conclusion that is far from foregone. As Alan Trench has long argued, a section 30 order has the benefit of isolating the referendum issue from broader questions of reform, and Holyrood's financial powers, and the controversy engulfing the latter. However, if UK ministers prove muddled in their goals, it is easy to see how a section 30 order might cause its own constitutional stramash. If treated solely as a simple instrument to eliminate legal doubts, a straightforward and unqualified section 30 order ought to be uncontroversial, both in Holyrood and Westminster. A few irredentist, gadfly Unionists in London might try to cause a bit of mischief, but I see no reason why such stubborn outcrops of resistance could not be overcome.

Things get spicier if Michael Moore fancies himself for a cunning so-and-so, and he and his colleagues lose sight of their primary aim, and try to use a section 30 order to politick in their own preferences for an early referendum poll, by time-limiting the referendum competence to 2013, 2014 or the like. Nationalists are liable to contend that for the Secretary of State for Scotland to do so would be shameless interference with a democratic mandate-bearing Scottish Government, which ought to be able to hold the poll when it damn well pleases, according to the loose timetable it presented to the Scottish public. Assuming they feel strongly enough about the timing issue, we might envisage the SNP-dominated Holyrood refusing to consent to any Order in which the clock ticks on independence, even if it put the legality of its referendum questions beyond doubt. What then? Can you imagine a rebuffed UK ministry bringing back another Order, without the time-bar?

Without the certainty a section 30 order could provide, the SNP would be in the same position as they are now, having to rely on its shoogly legal powers under the current incarnation of the Scotland Act. Clumsily, predictably, UK ministers would simultaneously have failed to achieve their essential goal of ensuring the referendum can take place without unnecessary judicial deliberations and secured no apparent political advantage in the process. Certainly, they might try to colour the Nats as stubborn and unconstructive - but if UK ministers are primarily feart of the damage a single Unionist litigant might to do their cause, they'd do well to swallow any conceits they may have of playing Machiavelli, and make that simple, clear and unconditional section 30 order they've been gossiping to the BBC about.

Glasgow MSPs on same-sex marriage...

2012-01-02T14:12:00.006Z

A New Year! I trust you all enjoyed yourself over the Festive period, and have laid in a fine layer of suet to get you warmly through the rest of the winter. To ease us back into 2012's blogging, I thought I would start the year's scribbling endeavours with an issue which may feature prominently in the coming political year - at least if the Scottish Government proceeds expeditiously, as some predict they shall.

The consultation on same-sex marriage having concluded, and procedural grounds for coyness having faded, I thought it would be of interest to canvass various MSPs' attitudes towards the general idea of same-sex marriage. To which end, I emailed each of MSPs before Christmas, soliciting their very general ideas on the issue. Thus far, I've received a response from three - Patrick Harvie, Ruth Davidson and Labour's Anne McTaggart. I await the epistles of Bob Doris, Drew Smith, Hanzala Malik, Humza Yousaf and Nicola Sturgeon with expectant curiosity. While some of these characters' general views are already a matter of public record, others opinions remain, to the best of my knowledge, opaque. I note, however, that Doris, Smith, Malik and Yousaf all added their names to Patrick Harvie's motion in Holyrood, which concluded that its signatories believed...

"... that it would be both right and popular for secular and religious Scots alike to be free to reach their own view on the legal status that is right for their own relationship instead of being banned by law from having their relationships recognised on equal terms."

Since their views are likely of general interest, I thought I'd publish the MSPs' replies on here. First up, this is what the tyro leader of the Scottish Tories had to say...

Ruth Davidson

Thank you for your recent email regarding the Equality Network’s Equal Marriage Campaign. As you are no doubt aware, the Scottish Government has just completed a consultation on this issue.

I am on public record as supporting same sex marriage, with the important proviso that there is no compulsion for religious organisations to conduct ceremonies if they do not wish to.

I intend to give my MSP group a free vote on any same-sex marriage legislation brought before parliament, as I consider it to be an issue of conscience.

Thank you once again for taking the time to write.

Yours sincerely,
Ruth Davidson

Secondly, Scottish Green co-convenor Patrick Harvie sounded a similarly supportive note, heading his response "Equal Marriage", and writing...

Patrick Harvie

Many thanks for your email. I strongly support legislation to ensure that marriage and civil partnership are available on equal terms, to same-sex and mixed-sex couples. I believe that there is likely to be a majority for this legislation in the Scottish Parliament, so long as the Government can be persuaded to introduce it. I will be making the case for a Bill in 2012, rather than a delay till 2013.

I am happy to support the right of religious bodies which wish to carry out same-sex marriage ceremonies to do so. I would also support the proposal to end the requirement on transgender people to divorce or dissolve a civil partnership in order to register their gender reassignment.

You may wish to see my full response to the Government’s consultation, which you can find here:

http://www.patrickharviemsp.com/2011/12/same-sex-marriage-and-civil-partnership-consultation-response/

Kind regards,

Patrick Harvie

So far, so unequivocal. Happily, Labour's Anne McTaggart's response is sufficiently prevaricating fully to compensate for the clarity of the other two. But I'm getting ahead of myself. Introductions are likely in order. Also a Glasgow Councillor for Drumchapel and Anniesland since 2009, McTaggart was one of Labour's unexpected 2011 intake, winning her seat in the region after Hanzala Malik and Drew Smith. Since her election, I've heard nary a peep out of her or about her, save for rumours that Iain Gray had to prevent her from stumbling into the folly of employing Steven Purcell as a parliamentary aide. In a form-reply apparently composed entirely with the expectation that folk writing to her are (a) religious and (b) primarily concerned about their pastors, ministers and men of god being forced to sanctify same-sex relationships, McTaggart responded...

Anne McTaggart

Dear Sir/Madam,

Subject: Same Sex Marriage

Thank you for your letter regarding the Scottish Government’s consultation on civil marriage for couples of the same sex and to change civil partnerships to allow for religious ceremonies with the agreement of the religious body.

I very much respect the views expressed by Archbishop Conti and others. It is important to note however that the Scottish Government’s proposal for same sex marriage currently under consideration refers to civil marriage only and not religious marriage. I strongly believe it is for religious organisations to decide on the criteria by which they carry out marriage and any other ceremonies according to their own faith and beliefs.

Religious ceremonies are at the discretion of the faith groups which carry them out. This is true for all couples and I do not envisage, nor would I support the removal of this discretion.

As you may be aware the 2010 Scottish Social Attitudes Survey found that 61% of respondents support equal civil marriage, compared to 41% in 2002 and I am mindful that there are a wide range of views amongst people of religious faith as well as those of none.

I am also mindful that equal civil marriage is available in a number of other countries including Canada, Belgium, Spain, Portugal, the Netherlands, Argentina, Sweden and some states of the USA.

That said I will consider the range of views expressed to me carefully together with the outcome of the consultation.

Thank you again for taking the time to pass on your views. I hope this provides you with some reassurance that the right of religious organisations to carry out marriage and other ceremonies, as they view appropriate, will be recognised.

Yours Sincerely

Anne McTaggart MSP

A rather curious reply, since my enquiry expressed no particular concern about the rights of religious bodies, nor required any expressions of esteem for the Archbishop of Glasgow or his convictions. So is she for or agin? Deduce McTaggart's general position from this tour of the world if you can. Cautiously for, perhaps, mibbe? If you can wrestle this jelly into a firmer shape, you are a nimbler soul than I...

UPDATE

Interestingly, Andrew W notes in the comments that he received a word-for-word identical reply from Richard Baker in relation to his enquiries on the same topic. I'm not surprised to hear that. I didn't mention it in the initial blog, but McTaggart's reply was actually headlined "suggested response", rather suggesting that the prose didn't exactly spring from her own pen. A subtle template, it was not. But suggested by whom, I wondered? A flunky, perhaps? The Labour group in Holyrood? A quick look at the .doc I was sent indicates that the document was actually composed by one ... Jackie Baillie. What would we do without our independent-minded, hard-working and inquisitive tribunes of the people, eh? Free spirits, every man Jack of 'em. I'm sure all of your constituents appreciate your obvious thoughtful commitment to their service, Anne.

♫ Noël nouvelet! ♫

2011-12-24T12:55:00.005Z

Fastidious sprites polishing holly-berries, the frosty carcasses of Grinches buried in snowdrifts; Scrooges redeemed, Marleys damned; strain-eyed shoppers haunted by commercial spectres and the demanding voices of their children; glistering grub, bubbling beakers from the north-east of France; bubblyjocks throttled and blushing robins rouged up for their annual performances; gin o'clock striking at noon. 'Tis the season! Christmas is upon us! An apt moment then for me to suspend all peat worrying for a few days, hang up my oxter-flaughter, abandon my bothy for a warmer and more convivial berth, pluck the Tom Weir bobble-hat from my brow, and sink into jovial relaxation.

Also, it seems a fine hour to say a wee word or two about the past twelve months. 2011 has been a interesting year for the blog, with a Holyrood election to contend with, agitating for my party, critiquing our opponents - and subsequently trying to unpick the whys and wherefores of the SNP's triumph, and what it might or might not presage for independence. Notable too, my sheep-trail-blazing association with Ecclefechan Mackay and the north west's organ of record, the Kinlochbervie Chronicle. To focus on what I see as my core utility as a blogger, 2011 has also been a year of trying to deal with the slew of interesting Scottish legal-and-political stories in an intelligible and informative way, whether on the UK Supreme Court's judgments on the legality of Holyrood's legislation on pleural plaques, to Cadder and Fraser and the subsequent political rumpus these decisions caused. Elsewhere, the SNP majority in the Scottish Parliament has prompted long-deferred questions about the legality of proposed Holyrood's referendum on Scottish independence finally to be posed in the mainstream media. Otherwise, probably the profoundest politico-legal controversy over the last six months has concerned the SNP's illiberal and misconceived Offensive Behaviour at Football (etc) Act.

For the future, pregnant questions include, what will come of Carloway's Review? Is Scotland's distinctive corroboration rule counting down the hours to its abolition? Having passed its Football Act, how will procurators fiscal and police use the very extensive powers it gives them? Will we see an increase in the number of football banning orders granted, given the named-offences and the heightened political atmosphere? In the high-end judicial line, with Lord Reed taking up Lord Rodger's vacant chair as a justice of the UK Supreme Court, who will be appointed to replace Lord Hamilton as the Lord President of the Court of Session? Interesting times, by any measure. There has also been the novelty of dewigging myself live on telly and shedding my-long-standing pseudonymity. Perhaps the most amusing consequence of this new and discombobulating experience was being described as a "boffin" by the academically discerning folk of the Daily Star.

The main reason I blog is because of the pleasure it brings me: the scribbling, the argument, hopefully contributing something otherwise absent from the Scottish public sphere. And I've exceedingly enjoyed the past year. I hope you all have too. So to my regular and irregular readers, to folk who've taken the time to comment and to blisteringly critique the propositions I've advanced here over the past twelve months, and to those who've kept mum, nodding along with or shaking their fists at yours truly, a very Merry Christmas and a Guid New Year one and all!

It may be that a tale irresistibly captures my imagination between now and then, momentarily prompting my lapse from the port-fug to rattle out some words. Otherwise, I'll be sharpening my goose-quills by the fire and giving the ink another stab come January. Slàinte!

Holyrood: less transparent than Westminster?

2011-12-22T14:39:00.008Z

The Westminster parliament is hardly renowned for its transparency, even after late scandals. However, a quarter-decade ago, the House of Commons established its Register Of Interests Of Members' Secretaries And Research Assistants. I first discovered it thanks to Twitter during the ignominy of the Liam-Fox/Adam-Werritty/taking-my-mate-to-the-UK's-bomb-party-and-getting-plastered affair. Maintained by the Parliamentary Commissioner for Standards, nowadays, it requires that...

"Those holding a parliamentary pass as a Member's secretary or research assistant are required to record on this Register, commonly called the Members' Staff Register, any other occupation or employment from which they receive income exceeding half of one per cent of a Member's salary from the same source in the course of a calendar year, if that occupation or employment is in any way advantaged by the privileged access to Parliament afforded by their pass. They also have to register any tangible gift (eg silverware) and any other benefit (eg. hospitality, service or facilities provided) which they receive, if the value of the gift or benefit exceeds that sum and the gift arises from or relates to their work in Parliament."

You can search the list by member of parliament, and see who has lobbed a job to one of their councillors; whose staff also work part-time and ad hoc for pressure groups, charities, corporations or unions; how many buzz about part-time as party political Moscas; discern whose employees is paid for by CARE or the like, and any jaunts the staff have gone on, including trips to Tunisia, Egypt, Portugal, Germany, Rwanda, Azerbaijan, St Andrews - and so on. While in most cases, the Register only lists the names of those employed who have no other outside, declarable interests, more eccentric details are revealed in other entries. For example, Tory MP for Devon South West, Gary Streeter, unaccountably employs the director of the Christian Socialist Movement, Andrew Flannagan. Attorney-General Dominic Grieve rejoices in the company of a "self-employed political coach". While hardly densely textured information, the register at least allows one to see who is employing who on the public penny, which strikes me as no bad thing.

What about Holyrood, I asked myself? Since the institution prides itself on drawing flattering contrasts with Westminter's traditional perfidy and insular sense of entitlement, ever keen to burnish its credentials for transparency and public accessibility, I assumed I'd be able to find the parallel roster of Holyrood's parliamentary staff whippity-quick. But no. Not a sausage. In 2010/11, under the prevailing Members Expense Scheme, MSPs' staffing costs ran to some £8,841,339, with a "cap" of £59,500 on each member. In some cases, a tiny sprinkle of information is available. For example, Darth Murdo Fraser declares the "gift" of a CARE intern in his interests. If you look into the individual expenses claims of MSPs, which are extensively catalogued online, sometimes the payee is listed, but not if members "pool" resources and share staff through the SNP support group, and the like. After the 2009 ban on MSPs employing family members, Scottish parliamentarians who hire the relations of other MSPs are required to declare the association. As of November this year, this micro-register of inter-tribune child support read as follows...

MSP	Staff member	Related MSP	Relation	Job
Neil Bibby	Jacqueline Henry	Hugh Henry	Wife	Researcher
Christine Grahame	Euan Ingram	Adam Ingram	Son	Researcher
Bill Kidd	Christopher White	Sandra White	Son	Parliamentary assistant
Joan McAlpine	Gail Lythgoe	Humza Yousaf	Wife	Researcher
Siobhan McMahon	Laura Baillie	Jackie Baillie	Daughter	Administrator

Late-May's list showed that the practice was rather more widespread earlier on in the year. For the main, however, there's no simple public ledger whatsoever of who our MSPs employ, nor any public declaration system, by means of which staff's external interests which might impact on their parliamentary work could be declared. One ought to be sanguine about the practical limits of these official catalogues of connections. Absolutely. They will never exhaustively map the often undisclosed and unofficial networks of potentially influential relationships our politicians have, nor should they. However, it does strike me that this is a modest set of data which it would be worthwhile to make publicly available.

I dare say one could contact each of the MSPs individually, soliciting the names of their employees, but that's hardly straightforward, and hardly enshrines abstract ideas of transparency by adopting practical measures effectively to realise it. If Westminster feels that it is necessary and worthwhile to publish this information about MPs' staff, it seems clear to me that the burden lies on Holyrood and its Corporate Body, to explain why conditions obtaining in London require the disclosure of this information, while transparent Edinburgh ought to be exempted from the necessity. Colour me unconvinced.

Anyone up for a mild spot of agitation come the new year?

Johann's shadow "ministry of all the talents"?

2011-12-21T15:24:00.004Z

Just a short thought for today. A "ministry of all the talents". Historically, the phrase is owed to William Greville's abortive 1806-1807 Napoleonic wartime ministry, installed after the death of Pitt the Younger. In recent times, a version of the idea what revived by Gordon Brown, whose vision incorporated like likes of Paul Myners and Digby Jones, rather than Charles James Fox, into his government. The impression intended was presumably one of non-partisan catholicity, confected to imply that Labour would not be bounded by the bubble Politics, with its snarling and often pointless caballing, porous to external influences and wisdom.

Generally, the stratagem is shamelessly manipulative. Beneath the uncontroversial vocabulary of goodness and good sense, such invocations of "talent" often as not appeal to delusions of apolitical excellence, implying that ideology there is none, as if a plutocrat's opinions become simple common sense when they are solicited by a government with increasingly vague social democratic credentials. It is to feign transcending the grub of politics, primarily to secure political advantage. And let's be blunt. Scottish Labour requires all of the advantages they can get their numbed political hands on. Gordon Brown's example does not appear to have dissuaded Johann Lamont, who has appointed her shadow ministerial team this week, with a promise that...

"Over the coming weeks, additional appointments from outside the world of politics will be made to bring specialist advice in their areas of expertise to shadow cabinet discussions."

On a more mordant reading, this is a cabinet of all the talents, notable in its dearth of the latter, with Labour's livelier new folk in Holyrood having too much green sap at this stage to spice up their party's fortunes alone. The party's thoroughly-rusted machine politics having been exposed, where crashing mediocrity is no barrier to gaining and retaining political positions, Lamont's references to the addition of external souls is a clear attempt to foster an air of novelty, revision, and renewal. As an aside, I see that Lewis Macdonald, third-placed in the party's recent deputy leadership election, has been appointed the party's justice spokesman. Happily, he's no Richard Baker, but I was a little surprised by the appointment, since in recent times, I can't recall hearing a peep out of Macdonald on any of the bigger justice debates in Scottish politics. Let's see how he does.

To use a familiar press cliché, one account of the business of a shadow cabinet is to persuade the electorate that the opposition are a plausible government in waiting. And here's why I wonder if an all-the-talents tack really assists Labour towards this goal. Johann, we have a legal problem. In Westminster, you can always invest unelected folk with the ermine zoot-suit of a member of the House of Lords, co-opting them into your cabinet, counsels and even ministerial office. Not so in Holyrood. Being a creature of statute, Scottish Ministers are all appointed under the Scotland Act 1998, which is extremely specific about who can and cannot be a Scottish minister...

s47(1) The First Minister may, with the approval of Her Majesty, appoint Ministers from among the members of the Parliament.

The only exceptions to this are the Scottish law officers - the Lord Advocate and the Solicitor General for Scotland - neither of whom need be MSPs, but who nevertheless may participate but not vote in Holyrood's proceedings, answering parliamentary questions, making statements and the like. Until devolution, Lords Advocate tended to be either MPs or hastily appointed members of the House of Lords, to get around this problem. What's the point in having a shadow ministry of all the talents, when the talents in it can't be ministers?

Certainly, you might think that taking good advice, and identifying individuals able to identify and articulate your aims compellingly and lucidly is a good idea. I'd agree. You might even determine to ensure that your choice souls find themselves nominated to stand for winnable seats come the 2016 Holyrood election. If, however, these talents aren't willing to campaign for political office, under our constitution, there is no possibility they can serve as ministers and cabinet secretaries. Isn't there a risk, if your most persuasive advocates and talented characters aren't standing but are standing around in television studios and the like, that all one achieves is putting your own shadow cabinet in the shade? The point becomes less problematic, by contrast, if Labour's realistic goal is not to win back office in 2016, but merely to stave off Scottish independence and strive to refit the political outfit for a successful 2021 run. Don't expect anyone to own up to that, of course. Nobody won an election on the slogan, however sincere, of "we're shit and we know we are..."

Beyond stranger-danger: Scotland's amicicide statistics...

2011-12-19T14:53:00.001Z

Christmas. A time of family and friends. The doors and windows are shuttered against the frost and the cold. A fire glows in the grate, and all sprites and goblins are shut out. Traditionally, many people enjoy ghost stories around this time of year. For those of us who follow them, the Festive season also brings with it the annual release of the Scottish homicide statistics, and their ghoulish and unhappy catalogue of human cruelty and folly over the past twelve months. Often as not, the data is only pressed into service to attack the government of the day and undermine claims made about the efficacy of its policies. It goes without saying, but behind these statistics lies great sadness, squandered possibilities, grave errors of judgement which can never be recalled. The data can never adequately capture that.

What it can do, however, is challenge and surprise us in a range of ways. Our public debates are saturated by haunting tales of stranger-danger, and often wildly inaccurate assumptions about the nature of crime. Take a few commonplace examples. Is gun-crime a significant problem in Scotland? Where are people killed, and by whom? Bleak thought it is, this Scottish Government data speaks to these issues in important (and I think for many in surprising) ways. In Scotland, aggressors and those killed are overwhelmingly male, with a substantial majority of folk dying in homes and houses and around them, often at the hands of their friends, family and those they are acquainted with, most on the points of sharp instruments, such as knives. This is a macabre litany, but I'm struck by the extent to which it deviates from dominant ideas of crime, of risk, and who is most at risk of serious violent crime and from whom. I forget the precise source for this thought, but after the police and the army, the family is arguably the most perilous (as well as potentially the most nourishing and supportive) social unit in our society.

The most basic question is obviously, how many people were killed? In 2010/11, there were 95 cases and 97 victims of homicide, with 138 persons accused of committing them. Below, I put 2010/11 in the context of the preceding decade...

Geographically, a shocking 64% of homicide cases were investigated in the Strathclyde Police force area, with 27.3% of cases occurring in the city of Glasgow. So who are these victims? The gender-divisions are sharp, both in terms of victims and persons accused...

And accused persons? Of 2010/11's 138 accused persons, 111 were male and only 27 were female...

A grim tale of predominantly male aggression and suffering. Yet vital context is absent. Are these unknown strangers who shank each other in the street? Brutal and drunken pub fights that idiotically send participants to their maker?. Generally speaking, not at all and certainly not predominantly. First, let's look at the relationship of the accused person to their victim. Thereafter, we'll come onto the geographies of homicide in Scotland.

As you'll have clearly discerned, last year over 68% of homicide cases involved friends, relations and acquaintances. Given the close connection between most victims and their attackers, the geographic data becomes much less surprising. While nobody was killed in licenced premises in 2010/11, the location data breaks down as follows...

We now have a little better idea about the who and the where of homicide in Scotland. But how do people die? The figures by method of killing break down as follows...

Percentages can be a little bamboozling. I won't pluck out all every single macabre detail, but in terms of simple numbers rather than percentages, it is worth nothing the exceedingly small number of people killed using firearms in Scotland...

By way of contrast, across the last decade, significantly more people were killed by poisoning than died as the result of guns.

However, and most concerning, the pre-eminent method of homicide in Scotland remains by sharp-implements, including knives. While 2009/10 recorded strikingly low levels of homicide-by-knife, the figures have shot back up during 2010/11, to the second highest number of homicides by sharp-instrument in the last decade.

How many, how, and who - but why? Causal explanations are always trickier. I don't propose further to explore the data, but the police have summarised main motives for killings, suggesting that some 48.5% of homicides in 2010/11 are accounted for between "rage and fury" (19 homicides) and "fights and quarrels" (28). Strikingly, two deaths last year have been attributed to "contract killings", with eight apiece attributed to "jealousy" and "financial (theft or gain)". Finally, data is collected on the alcohol and drug status of accused persons. I'm a touch unclear on the definitions being used (in particular, whether the term "drunk" denotes intoxication to a significant degree, or whether it denotes any degree of alcohol consumption). That note of interpretation despite, these are our latest figures...

Source: Homicide in Scotland 2010-11.

"And great was Labour's Lamontation..."

2011-12-18T11:44:00.000Z

Rubbernecking on the internal politics of one's political opponents is rarely appreciated. However, since the Sunday Herald saw fit only to report Labour's leadership election on the fourth page of today's issue, I dare say Johann might welcome the attention, from whatever source. As you'll certainly have heard, Lamont saw off Ken Macintosh, while Tom Harris' hopes of being anointed LOLOTSP ("Leader of Labour outside the Scottish Parliament") were comprehensively disappointed.

So at last, it is farewell to Iain Gray, the Snark, LOLITSP. Farewell also, to Labour's suspended animation since May's election? Mibbes aye and mibbes naw. After the announcement of a Lamont victory at noon yesterday, much muttered was the fact that she appeared to have attracted only 12% of Labour members' votes. Quite reasonably, some folk wondered where the devil the other 88% had disappeared to. Welcome to Labour's electoral college, made up of three sections. The first, parliamentarians, includes MPs, MSPs and MEPs. The second is the ordinary membership of the Labour Party, while the third are votes cast by affiliates, including members of affiliated trade unions and socialist societies. Despite the numerical imbalances between them, all three groupings are of equal weight when it comes to awarding the leadership.

While not quite as wonderfully arcane as the process the Venetians used to elect their Doge, for those of us more familiar with one-member-one-vote leadership elections, Labour's approach can seem a bit esoteric. Others are more critical. In today's Scotland on Sunday, Kenny Farquharson describes it as a "flawed, antediluvian antique that needs to be unceremoniously ditched". Whatever its merits or demerits, the process and its results are all rather straightforward if sympathetically presented. To start us off, three tables showing the percentage of their total support which each candidate attracted from the three voting sections - and where Johann's winning votes came from.

And in second place, Ken Macintosh...

And bringing up the rear, poor Tom Harris...

For clarity and interest's sake, it is also worth separately pulling out how each of the sections cast their votes. For example, you'll see that the 12% support from the membership being bandied about with respect to Johann is both true and a truly misleading statistic, seen out of context. While members did prefer Macintosh and Lamont's victory was substantially down to affiliate votes and a more modest lead amongst parliamentarians, Lamont attracted around 37% of the membership vote, compared to Ken's 53%.

In addition to the leadership election, Labour was also voting on a new deputy, with my tender tyro MP, Anas Sarwar, winning out over Ian Davidon MP and Lewis Macdonald MSP with 51.10% of the vote across the college. Here's where Anas' found his support in the party. You'll notice, in stark contrast with Johann, that Sarwar only managed to attract a modest percentage of affiliates' ballots, while very comprehensively carrying both Labour's parliamentary delegations, and ordinary members.

And amongst the three sections of the college, support for the three candidates for deputy divided as follows...

Source.

Bogus names on gay marriage petition?

2011-12-16T14:03:00.001Z

A curious tale in the Scotsman this morning, with complaints that Scotland for Marriage's petition agin same-sex marriage (presently numbering some 9,000 signatures) lists a small number of "bogus" names, apparently including those of folk who actively support same-sex marriage. Improbably enough, the tale seems to be largely predicated on the assumption that there is only one person in Scotland called Paul Gray, which doesn't strike me as immediately plausible. As usual, however, the bigger titles miss the real story and the bigger scandal. Happily, Ecclefechan Mackay of the Kinlochbervie Chronicle has applied himself more throughly to the petition, and has unearthed some truly scandalous revelations...

Bogus names on gay marriage petition?
by Ecclefechan Mackay (MA), Political Correspondent.

The names of "dozens" of C-list Scottish celebrities were "falsely added" to a controversial online petition against gay marriage, the Kinlochbervie Chronicle can confirm. Wee Bessie McTavish, who once had a walk-on part in Take the High Road in the early 1990s and who hasn't stopped talking about it since, was "shocked" to discover her name on the petition while obsessively googling herself last night. "The only explanation is that one of these people saw a rerun of my episode, and maliciously added my name to their so-called petition. I'm horrified. I mean, its not as if Bessie McTavish is a common name, is it?" Other public figures with half-remembered faces you can't quite place whose names appear on the petition include Wee Jimmy Krankie, Chief Inspector Taggart and that-other-skelf-skinny-guy-that-might-have-won-the-X-Factor-a-while-back.

Further investigations conducted by the Chronicle have shockingly revealed that the entire cast of Scottish soap River City have also been listed as supporters of the marriage campaign, including the "Shieldinch Strangler", who terrorised the tight-knit Glasgow community throughout 2003. It is now understood "at least half" of the names appearing on the Scotland for Marriage petition belong to “clichéd fictional characters and washed-up ex-celebrities reduced to humiliating Christmas panto appearances”, a spokesman for Strathclyde Police's Fraud Unit has confirmed.

However, a prominent fictional supporter of the Scotland for Marriage group has hit back, arguing that the views of fictional Scots on the SNP government's same-sex proposals ought to be treated "with the same respect and seriousness" afforded to the submissions of the rest of the population. Take the High Road's Mrs Mack is one of the campaign's most vocal supporters, organising a series of tea and tablet rallies against gay marriage in church halls across the country. The judgemental harridan and oppressive busybody told the Chronicle. "I was blunt with Gordon [Wilson]. The group should be called Save Scotland from Sodomy but nobody ever listens to me". The fictional shrew admitted that she had signed the petition at least fifteen times herself, "to show just how much I and the whole community of Glendarroch support this admirable campaign".

Whig MSP for Kinlochbervie West, Hector McPollick, has written to the Scottish Government, urging Ministers not to take the views of faded pantomime stars into account. Wee Jimmy Krankie continues vigorously to deny having signed the petition. "Oh no I didn't!" the pint-sized schoolboy insisted at a press conference yesterday, adding that a complaint has been lodged with Christopher Biggins, who has been contracted to "track down and wreak terrible, intestine-tearing vengeance against any bastard who dares to use my name in vain. Fandabidosi. Next question please."

A spokesman for Scotland for Marriage suggested that supporters of gay marriage had placed the names on the site in an “underhand tactic” to make it appear that Scotland for Marriage was run by people with a taste for mediocre Scottish drama and excruciatingly unfunny transvestites. He said: “This appears to be a malicious attempt to undermine the campaign. A police investigation would be welcome.”

A Festive medley! Ipsos-MORI on independence & Holyrood voting intentions...

2011-12-13T17:06:00.001Z

The host of psephological elves I maintain are lazy beggars sometimes. They went on strike this weekend over proposed reductions in their soor ploom rations, and not even a crack of my licorice goad, nor the salutary strawberry-lace hanging of five, could convince them to get on with unpicking the recent pair of interesting polls from Ipsos-MORI's Scottish Public Opinion monitor. Luckily, I was able to second a crack crew of the Santa Claus Group's notoriously brutal strike-breaking gnomes, and but for a few broken candy canes and hideous, sugar-impacted fractures, my mob of layabout fey are quiescent again, and back in the business.

So what bounty did Ipsos-MORI bring? First, a political poll on Holyrood voting intentions and satisfaction with Alex Salmond, Willie Rennie and Ruth Davidson. Today, the pollster released a second dollop of findings from the same polling exercise, this time on the big constitutional questions. Do you want Scotland to be independent? Alternatively, could we tempt you with the idea of extending "the powers of the Scottish Parliament to include more laws and duties and all tax-raising powers, while Scotland remains part of the UK"? When do you want such a referendum to be posed anyway? 2013? Or 2015?

If we cast our minds back a few months, Ipsos-MORI's last polls on both of these topics were published in early September. See the detail of the political findings here, and on independence, here. So what has changed? On the political front, Ipsos-MORI's most recent findings, disaggregated by gender and with the change from autumn to winter in brackets, were as follows...

In Holyrood constituencies (all)...
SNP 40% (+1)
Labour 22% (-2)
Conservative 9% (-)
Liberal Democrat 8% (+2)
In Holyrood constituencies (men)...
SNP 48% (+7)
Labour 19% (-4)
Conservative 10% (-1)
Liberal Democrat 6% (+1)
In Holyrood constituencies (women)...
SNP 34% (-3)
Labour 25% (-1)
Conservative 8% (-)
Liberal Democrat 8% (+2)

And those identified as "certain to vote" in Scottish Parliament elections...

In Holyrood constituencies (all certain to vote)...
SNP 51% (+2)
Labour 26% (-2)
Conservative 12% (-1)
Liberal Democrat 8% (+1)
In Holyrood constituencies (men certain to vote)...
SNP 57% (+3)
Labour 20% (-3)
Conservative 13% (-)
Liberal Democrat 6% (-)
In Holyrood constituencies (women certain to vote)...
SNP 44% (-1)
Labour 32% (-)
Conservative 11% (-1)
Liberal Democrat 9% (+1)

As you'll see although the headline figures (particularly those generated by those "certain to vote") are strikingly good for the Nationalists, mostly this poll shows only minor shifts from September and the SNP's sustained popularity through to winter, with Labour remaining slumped lifelessly in the gutter, phizogs first. And what about the Maximum Eck? Does Salmond still bestride all he surveys? Seems so. Again, all changes from September in brackets...

In total...
Satisfied ~ 62% (-)
Dissatisfied ~ 27% (-1)
Don't know ~ 10% (+1)
Men...
Satisfied ~ 67% (+2)
Dissatisfied ~ 26% (-2)
Don't know ~ 7% (-)
Women...
Satisfied ~ 58% (-2)
Dissatisfied ~ 29% (-)
Don't know ~ 13% (+1)

Beyond gender and the overall figures, Alex Salmond's proved least popular with those over 55 years of age - 59% satisfied - and most popular with 25-34 year olds, of whom 73% expressed a positive opinion of the First Minister's labours in office. Negative feelings broke down in the same way. Just over a third of those over 55 feel dissatisfied with him (34%), while only 12% of those between twenty five and thirty four held a clearly negative view. What of Ruth Davidson and Willie Rennie? Up to snuff, either of them? The keynote for each, rather understandably at this stage in their respective headships, is non-recognition. 57% of respondents didn't know what to make of the new Tory leader, while 52% hadn't the foggiest about the Liberal Democrat.

A few waggish observation, for spite. Firstly, Labour's anti-Salmond monomania appears not even to stir many their own supporters. While 47% of Labour-voters declare themselves dissatisfied with Alex, still 41% are satisfied with his performance in office. Indeed, the same is true and moreso of Liberal Democrat voters, 56% of whom are happy with Salmond, to 36% unhappy. Amongst Tories, there remains a cohort of cheery Conservatives 39% of whom are satisfied, while 56% are unsatisfied with him.

But what impact has any of this on the independence debate? Are the SNP making mild a rugged people, and subduing them to the good of national self-determination, whether by dint of independent state, or a more powerful Holyrood? Let's start with "enhanced devolution". Ipsos-MORI asked:

"As you may know, the Scottish Government plans to hold a referendum on Scotland's constitutional future during the next Scottish Parliament. The referendum is likely to contain two separate questions. The first question will ask whether you agree or disagree with the proposal to extent the powers of the Scottish Parliament to include more laws and duties and all tax-raising powers, while Scotland remains part of the UK. If the referendum was held tomorrow, would you vote to agree or disagree with this proposal?"

The pollsters findings were as follows (changes from September in brackets...)

Total results ("More devolution")(all respondents)...
Agree ~ 64% (-2)
Disagree ~ 29% (+3)
Undecided / Don't know ~ 7% (-1)

And in gendered profile...

Men ("more devolution")...
Agree ~ 66% (+1)
Disagree ~ 30% (+3)
Undecided / Don't know ~ 4 (-4%)
Women ("more devolution")...
Agree ~ 62% (-5)
Disagree ~ 29% (+3)
Undecided / Don't know ~ 9% (+2)

And on independence? Asked...

"... whether you agree or disagree with a proposal to extend the powers of the Scottish Parliament to enable Scotland to become an independent country, separate from the UK. If the referendum was held tomorrow, would you vote to agree or disagree with this proposal?"

Total results (independence) (all voters...)
Agree ~ 35% (-)
Disagree ~ 58% (-)
Undecided / Don't know ~ 8% (+1)

And now, by gender...

Men...
Agree ~ 40% (+5)
Disagree ~ 55% (-3)
Undecided / Don't know ~ 6%v(-)
Women...
Agree ~ 30% (-4)
Disagree ~ 60%v(+3)
Undecided / Don't know ~ 10% (+1)

And by croneliness...

18 - 24 ...
Agree ~ 42% (-4)
Disagree ~ 55% (+7)
Undecided / Don't know ~ 3% (-3)
25 - 34...
Agree ~ 48% (+ 14)
Disagree ~ 42 (-15)
Undecided / Don't know ~ 10% (+1)
35 - 54...
Agree ~ 30% (-5)
Disagree ~ 60% (+3)
Undecided / Don't know ~ 9% (+1)
55+...
Agree ~ 31% (-1)
Disagree ~ 62% (-)
Undecided / Don't know ~ 7% (-)

Interestingly, this time around, we have "Certain to Vote" figures on independence. Although there are some indications that the Scottish population is more likely to turn out for an independence referendum than Holyrood elections, we can anticipate public participation in the final plebiscite which is some way shy of complete. Stimulating supporters to vote may be crucial. So what are those already keen to vote thinking? According to Ipsos-MORI...

Total results (independence)(certain to vote)...
Agree ~ 38%
Disagree ~ 57%
Undecided / Don't know ~ 5%

And by gender...

Men (certain to vote)...
Agree ~ 42%
Disagree ~ 52%
Undecided / Don't know ~ 5%
Women (certain to vote)...
Agree ~ 33%
Disagree ~ 61%
Undecided / Don't know ~ 5%

A couple of other points of data, and then I'll unhitch the exhausted elves from their harnesses, allow them to rub soothing aloe onto their licorice-lacerated backs, and give them their daily beaker of mulled wine, to restore them. Firstly, if you look at the findings by social affluence, it is clear that the least deprived fifth of respondents are the most hostile to independence, with opposition amongst all least deprived voters numbering some 69%, also recording the lowest level of support for independence, at only 23%. Amongst least deprived voters who are certain to vote, the finding is even mightier, with 72% indicating they would vote "no" in an independence referendum.

Interestingly, if we go back to Ipsos-MORI's devolution question, the same, least deprived group are the most skeptical about more devolution too, with a third opposing it. What lessons from this? Familiar ones, really. Women and older and more bourgeois voters prove and continue to prove more resistant to the idea of independence than other parts of society, and if the SNP votes want to persuade them of the virtues of independence, more needs to be done. Although the slippage is slight - very slight - That said, balancing off groups is never entirely straightforward, as a message which has potential to persuade one segment of society, like as not, will alienate another body of opinion that was once minded to support you.

There's plenty more meat in these two sets of full tables, on political feeling and independence sentiment by age, rural and urban voters, whether folk have kids, work full or part time, whether they own their houses or they rent. However, being a benevolent feudal overall, and bound by the EU elf and safety working time directive, I think it is time to set my eldrich vassals loose for the evening. Happy psephologising, children!

Full tables: Holyrood voting intentions.

Full tables: Independence.

85% already believe "sectarianism" is a criminal offence...

2011-12-12T12:49:00.001Z

On Wednesday, Holyrood is due to pass the final version of the Offensive Behaviour at Football and Threatening Communications (Scotland) Bill into law at stage three. Yesterday, the BBC's Politics Show Scotland discussed the issue, and somewhat unexpectedly, yours truly was invited back on to contribute. The section starts around 01:04:16. While there is still time for the legislation to be amended, its substantial revision seems unlikely. I've made my own views on this legislation, and how it has been handled, defended and justified, exceedingly - one might even say tediously - plain across a series of more-and-less temperately worded pieces on this blog. Such doubts are now moot. The Bill will pass on Wednesday. Our thoughts must turn to its implementation, its operation in practice and anxious scrutiny of how prosecutors and police officers use the sweeping powers it gives them. It is in that spirit that I tried to contribute to yesterday's programme.

Whether or not you regard this law as the bee's knees, we must be frank about the challenges presented by how its actual provisions have been composed. It is very broadly drafted, potentially criminalising a great gamut of conduct around and near football matches and football fans, whether in stadia, on public transport, or in pubs with the football on. In these settings, the police will be armed with very broad powers indeed, mediated primarily by that less-than-reassuring concept "common sense", to guide them. If this is your goal, or one you find attractive, this Bill will certainly satisfy. However, the breadth which will give the police such "flexibility" correlatively - and self-evidently - presents challenges for the liberty of the subject.

Some of you, I think, may have misapprehended the point I was trying to make in my ad absurdam piece about the criminalisation of Huguenot-haters. By no means am I seriously suggesting that the police will be spending their time, scourging around in bars, seeking out and persecuting those fondly reminiscing about St Bartholomew's Day in 1572. By taking such an improbable example, and demonstrating how the new law will criminalise the eccentric conduct and prejudices of its characters, I hoped primarily to prompt a little thought. What about more plausible scenarios closer to home, closer to the Scottish experience? Do we seriously think that such cases really merit criminalisation and jail terms? Anybody who believes that the police and prosecutors never stumble and misjudge, I'd encourage you to read up on Paul Chambers and the scandal of his "Twitter Joke Trial". Such concerns are not hysterical. They are just the sorts of cases which are left vulnerable to prosecution, when you enact very broad criminal legislation, relying on the good sense of law officers and public prosecutors to use their provisions sparingly and selectively. Supporters of the Bill must be frank with themselves about that.

Finally, I wanted to expand upon a point raised in yesterday's Politics Show, on public knowledge of the law and potential challenges posed to the enforceability of this legislation. Les Gray, for the Police Federation, was profoundly skeptical about the idea that football fans - and I suppose, the public in general - will struggle to ascertain what behaviour, speech or songs will be criminal under the new regime and which will not. This robust confidence, despite the plain obscurity of the legislation's vaguest section, which criminalises "behaviour that a reasonable person would consider offensive" which a sheriff can be persuaded "is likely" or "would be likely to lead to public disorder". There is, for example, no list of proscribed songs or lyrics appended to this Bill, nor even a series of non-exhaustive scenarios, adding some meat to the concise definitions of its offences, to guide football fans and others exchanging views which might, conceivably, shade into the idea of "expressing hatred" against any of the groups enumerated in the law.

Is Les Gray right to be cynical about the idea that people have a clear idea what is permitted and what isn't? Here's a piece of evidence which suggests not, which I had rather intended to mention on the programme, but lamentably, slipped my mind when the camera had me in its beady, unresponsive gaze. Seeking to bolster their waylaid plans for this legislation, the SNP Government commissioned a poll from TNS-BMRB over the late summer, asking a series of questions about public attitudes towards "sectarianism". Do you agree that sectarianism is offensive? Do you agree that sectarianism is unacceptable in Scottish football? Do you agree or disagree that stronger action needs to be taken to tackle sectarianism and offensive behaviour associated with football in Scotland?

From their point of view, the findings were ideal. 89% agreeing sectarianism was offensive, 91% agreeing that "stronger action was needed". Since, Roseanna Cunningham has regularly syllogised around these findings thus:

Almost everyone agrees stronger action on sectarianism is needed. This Bill is stronger action on sectarianism. Therefore almost everyone supports this Bill.

Best I can discern, at no point in this polling exercise did the government or TNS-BMRB attempt to posit any definition of what they actually meant by sectarianism, so heaven knows what those polled made of the questions. I'm reminded of George Orwell's essay, "What is Fascism?", on wild, undefined commonplaces in our discourses, which all too easily obscure rather than illuminate the issues we're trying to talk about. Fundamentally, to ask if folk if they think sectarianism is offensive is basically to ask do you think that this Bad Thing is good or bad? It is no surprise, thus framed, that such questions generate such stonking results.

On my main theme, however - public knowledge of the law - the poll generated one finding which the government have conspicuously not discussed. Indeed, insofar as they have made reference to it, they've appear to have distorted the significance of the data. TNS-BMRB report that they asked their respondents if they thought that sectarianism is a criminal offence, under existing legislation? The key rationale now advanced by Scottish Government ministers is that this new Bill closes "gaps in the law", which is a rhetorical way of saying, "criminalising things which are not criminal but we think ought to be." So how knowledgeable were the public about these "gaps"? Did they see sectarianism as already criminal, or presently permitted by the law, and requiring criminalised in a "crackdown" aiming to expunge it from society and eliminate its lyrics from football? Strikingly, the poll showed that the vast, vast majority of respondents already thought that sectarianism was a criminal offence. The results were as follows:

Q: Sectarianism is a criminal offence. Agree or disagree?
Agree: 85%
Disagree: 5%
Neither agree nor disagree: 10%

Extremely cheekily, in a naked distortion of the polling data, in its news release, the Scottish Government appears to have substituted the is for an ought, suggesting that the poll showed that 85% of people "agreed that sectarianism should be a criminal offence". Not so. And the difference between the two statements is absolutely crucial. While the second may support the Scottish Government position, the question as posed by TNS-BMRB is more interesting, and more challenging. If most folk already regard "sectarianism" as criminal, what can new, symbolic criminal legislation contribute to changing behaviours, stopping mouths and slaying songs? More generally, if people have a very loose grasp on what the law requires of them as is, failing even to recognise the "gaps" the SNP government have put at the heart of their justification of this legislation, who can have much confidence that the broad-brush terms of the Offensive Behaviour at Football Bill will be seriously comprehensible, allowing people to discern what is and is not criminal, and regulate their conduct accordingly?

At the very least, the Scottish Government's own poll suggests that Les Gray's cynicism about knowing fans, feigning ignorance about what is and is not required of them by the criminal law, may be seriously misplaced.