Stone cold morons

The indycampers are morons. There's no getting around it, no sugar-coating it: stone cold morons. In -- legitimately -- resisting the Scottish Parliamentary Corporate Body's attempt to expel their small camp from Holyrood's grounds, the group have argued their case in a fashion which has lapsed from the divinely ridiculous to the grotesquely insulting. They have consistently ignored substantial legal arguments they might use to win their case, spending hours instead on eccentric, invariably doomed political points and barrack room lawyering. They are their own worst enemies.

This morning, they returned to Lord Turnbull's court, explaining that - months into their case and months after his first option - they still haven't tracked down a lawyer to represent them. The spokesmen for the camp went still further. They accused the judge of blasphemy, demanded the Queen appear to give evidence, demanded a jury hear the case, suggested that a key "spiritual" argument should be addressed by the court, declaring that "Jesus Christ the second is here and we're going to get our independence." 

I have the utmost sympathy for litigants -- ordinary folk -- trying to formulate legal cases without the assistance of a lawyer. This is hard, sometimes impossible, work. The logic of our courts puts them at a clear disadvantage when faced - as the indycampers have been faced - with professional opponents, whose bread and butter work is understanding legal procedures, rules and principles.

Having to do all this on the hoof - for yourself - without access to legal databases, without inbuilt legal know-how gained over the years, is tough. The inequality of arms can lead to injustice. Some judges are sympathetic to the plight of party litigants, others less so. Some try to take an active hand, focusing the ordinary punter's attention towards the key legal arguments and issues, rather than letting them dangle in the wind. They try to even up the odds, between the represented and the unrepresented party. They keep their patience, and try to see justice done as best they can.

Lord Turnbull is such a judge. We can only presume he lost the card-cut in the judicial dining room in Parliament House, to find himself landed with this case. And despite all manner of provocations, interminable, boring and irrelevant submissions -- this Court of Session judge has exhibited the patience of a saint. He had bent over backwards to accommodate the indycampers. He has treated their arguments as seriously as he could. He has tried to find any crumb of substantive legal argument in their digressive, and often just plain oddball submissions to the court. And by gum -- Lord Turnbull actually found one. The judge lit up this arguable point with neon lights in his first opinion in the "sovereign indigenous people of Scotland" case.  He told them to focus on it. He sounded sympathetic.

And what have the indycampers done with this helping hand? On the evidence of today's hearing, they've completely ignored it, abandoning a potentially winnable legal point which could block Holyrood's eviction plan, preferring instead to indulge in more antics and insults. It is frustrating. It is baffling.

Here's the short version of how they might survive. The Scottish Parliamentary Corporate Body is a public authority. Under the Human Rights Act 1998, the actions of public authorities must conform with the rights protected under the European Convention.  Article 10 protects free expression, Article 11 your right to freedom of assembly and association. Both of these are engaged by Holyrood's eviction plans, and both are qualified rights. 

That means the state is entitled to interfere with your rights to speak your mind and freely to assemble -- but only if particular conditions are met. The restrictions on your rights must be (a) according to law and (b) in pursuit of a legitimate aim -- national security, public safety, for the prevention of disorder or crime, for the protection of health or morals -- that kind of thing. Lastly, any interference must also be proportionate, striking a fair balance between collective interests pursued by the legitimate aim, and the fundamental rights of individuals to express their views, and to assemble. This is for the court to decide.

And in his first opinion, Lord Turnbull actually sounded reasonable skeptical about whether evicting this small camp would represent a proportionate measure by the Scottish Parliamentary Corporate Body. Distinguishing the situation involving the indycampers from other nearly analogous occupations, the judge had this to say:

[67] I have heard no evidence on the extent to which the respondents in the present case do, or do not, constitute an interference with the rights of others to access the grounds of the Scottish Parliament, or on any other matter which might fall to be weighed in a proportionality assessment.  As a resident of Edinburgh though, I am familiar with the layout of the grounds surrounding the Scottish Parliament building and the general location of the Camp.  As indicated by the petitioner, the Camp presently appears to occupy a small area at the very edge of the grounds which it owns and at the furthest point away from the entrance to the Parliament building.  It is not immediately obvious that the presence of the Camp would inhibit the use of the grounds by others for picnicking, dog-walking, or the like, as founded upon by the petitioner.  Nor is it immediately obvious that there are any real security or logistical concerns of the sort drawn attention to by the petitioner and which might weigh the proportionality balance in its favour.  

Abandoning their ridiculous antics, ceasing gratuitously to insult the trial judge, focusing on this legal argument  -- might actually get them somewhere. But after this morning's session, that looks like a fool's hope.

A first for women: Lady Dorrian appointed Lord Justice Clerk

Today, it has been announced that Leeona Dorrian has been appointed to the position of Lord Justice Clerk, Scotland's second most senior judge. Congratulations are to be extended to Lady Dorrian. But this is also a quietly historic occasion: Lady Dorrian is the first woman in Scottish legal history to hold this post.

At this stage, crustier lawyers amongst you may begin to shift uncomfortably, rhubarbing about individual merit, changed days, and so on. And fair enough, as far as it goes. But we do ourselves no favours if we forget our history, and Lady Dorrian's appointment is historic.

For the overwhelming majority of Scotland's history as a distinctive legal jurisdiction, women have been subject to the law, but haven't been permitted to shape it, whether in parliament, or on the bench. The progress of women's rights in the democratic domain at the beginning of the twentieth century is a weel-kent story. The 1918 Representation of the People Act conceded the principle of women's suffrage. This principle became more universal thereafter. Less well known, however, is the history of women's exclusion from the legal field. 

Until the Sex Disqualification (Removal) Act 1919, women were not permitted to become solicitors or advocates in Scottish courts. This was just one of a range of disqualifications which prevented women from fully participating in civic and political life. In the 1880s, the legality of these bans were challenged by women's rights activists in courts north and south of the border.  In Nairn v Scottish Ministers, for example, a group of women challenged the failure of the ancient universities to issue them with ballot papers. These women were graduates. They held degrees. The legislation which creates these university constituencies referred only to "persons" who were entitled to vote in their elections. Aren't women "persons"? 

Remarkably, the highest court in the land held that they were not. Rejecting the women's case, the Lord Chancellor, Lord Loreburn, upheld Edinburgh University’s refusal to issue its women graduates with ballot papers, saying: “this disability of women has been taken for granted", concluding "it is incomprehensible to me that anyone acquainted with our laws or the methods by which they are ascertained can think, if indeed, anyone does think, there is room for argument on such a point." So it was official: legally, women weren't "persons". But dissatisfaction drove reform. The 1919 Act allowed women to become officers of the court, if they met the requisite standards of qualification and training. It turned out women were "persons" after all.

The first woman was called to the Scottish Bar in July 1923 -- Margaret Kidd KC. Kidd was a fairly quiet, very conservative trailblazer. She was subsequently appointed sheriff and sheriff principal, but she remained a lonely representative of womankind in the corridors of Scottish lawyering for a remarkable period of time. The second female advocate – Isabel Sinclair – was not admitted to the Faculty until 1949, some twenty-six years later.  It took until 1981 for the Faculty roll to boast more than 10 female advocates. It is unsurprising, as a result, that the experience of pioneer women in the late 1970s, 1980s and 1990s was not always positive. One Scotsman article recounted this example from the life of the new Justice Clerk:

Isabel Sinclair QC “was rebuked by Lord Cameron for wearing red lipstick in court. As recently as a decade ago Leeona Dorrian QC was ticked off for wearing a red ribbon around her neck after the judge told her she was “improperly dressed.’”

The first woman was not appointed to the Court of Session bench until 1996, when Hazel Aronson - Lady Cosgrove - was appointed. That's in my lifetime - only twenty years ago. Recent Law Society of Scotland data shows the history of male dominance in Scots law is being - slowly - challenged. Currently, there are over 11,000 solicitor enrolled with the Law Society, with a roughly 50/50 breakdown. But a look at the longer-term figures show that the feminising of the Scottish legal profession remains a modern, fairly recent phenomenon. Just consider the statistics from the turn of the millennium onwards.

So bravo, Lady Dorrian. I'm sure the appointment reflects considerations of personal merit above all. But let's not overlook the understated symbolism of her appointment too. Although the law has hardly been an early adopter, Lady Dorrian's appointment shows that even the Scottish legal establishment cannot evade the gender revolution forever.

Assisted dying: bringing a little light

Last week, the Court of Session made an important decision on the law on assisted dying in Scotland. Gordon Ross - sadly now deceased - challenged the Lord Advocate to produce guidelines on what might happen, if a family member or a friend helped him to end his life. The outcome of this case was generally written up as a failure for Ross. 

The court declined to force Frank Mulholland to publish additional guidance on how his prosecutors would treat cases -- the remedy Ross sought. But in the course of reaching that decision, Lord Carloway and his colleagues arguably did something better -- they stated the law in this area with a simplicity and a clarity which has hitherto eluded the authorities.  Gordon Ross may not have secured the guidelines he was after, but greater clarity, he won. In this morning's edition of the Times, I pay tribute to Mr Ross's valiant efforts. He did not live to see their fruition, but they were not in vain.

Uncertainty in this area of law is a string I've harped on a good deal when Holyrood was considering the late Margo MacDonald's Bill to create a legal structure for assisted dying in this country, ending the need for folk to fly to Swizterland to end their lives, and ending the inequity, which allows richer sufferers to avail themselves of this opinion, but leaves poorer Scots without the remedy they seek.

At the time of the Holyrood hearings, the Crown Office were remarkably unhelpful, when pressed on their understandings of what the law does and does not criminalise, when it comes to assisting someone to end their days, whether by supplying them with fatal doses of drugs, or helping them to the airport, and onto a last flight to Zurich. Why? Their spokesman before the Health and Sport committee claimed that the Gordon Ross judicial review tied their hands - and presumably, their lips too. All the Crown Office spokesman would say was:

"These cases are very fact sensitive. Under the current law, it depends on what precise action was taken to assist the suicide. Perhaps the key point is that consent is not a defence in terms of assault or homicide. Any act that has been taken to assist in the dying process can be looked at in the context of the law of homicide as a whole.

Because a person cannot consent to die in that way under the current law, if someone assists that, that potentially becomes homicide. However, it is difficult to come up with a precise rule, because the cases are all very fact sensitive. It depends on the circumstances of each case, what the condition is, what level of understanding the person who died had, and the intention of the person who assisted."

In his judgment last week, Lord Carloway suggested "the criminal law in relation to assisted suicide in Scotland is clear." For my own part, I'm unconvinced this is a particularly convincing interpretation of the law as it stood before Mr Ross's legal action. But the Lord President's legal analysis in this decision goes a long way to bringing that clarity about. Here's what Scotland's most senior judge had to say.

[29] It is not a crime “to assist” another to commit suicide. However, if a person does something which he knows will cause the death of another person, he will be guilty of homicide if his act is the immediate and direct cause of the person’s death (MacAngus v HM Advocate (supra), LJG (Hamilton) at para [42]). Depending upon the nature of the act, the crime may be murder or culpable homicide. Exactly where the line of causation falls to be drawn is a matter of fact and circumstance for determination in each individual case. That does not, however, produce any uncertainly in the law.

[30] In relation specifically to a death caused by the ingestion of a lethal substance (which is what appears to be contemplated in the petitioner’s case), the administration of such a substance (eg the injection of a first time user with heroin) may amount to homicide (Kane v HM Advocate 2009 SCCR 238; Mr Kane pled guilty to culpable homicide, see p 264). Supplying a lethal substance for immediate use may conceivably fall into this category (MacAngus v HM Advocate (supra)), at least where there is certainty about its purpose and use (the prosecution of Mr MacAngus for the supply of ketamine to a user was discontinued). Nevertheless, the voluntary ingestion of a drug will normally break the causal chain. When an adult with full capacity freely and voluntarily consumes a drug with the intention of ending his life, it is this act which is the immediate and direct cause of death. It breaks the causal link between any act of supply and the death. 

[31] In the same way, other acts which do not amount to an immediate and direct cause are not criminal. Such acts, including taking persons to places where they may commit, or seek assistance to commit, suicide, fall firmly on the other side of the line of criminality. They do not, in a legal sense, cause the death, even if that death was predicted as the likely outcome of the visit. Driving a person of sound mind to a location where he can jump off a cliff, or leap in front of a train, does not constitute a crime. The act does not in any real sense amount to an immediate and direct cause of the death (MacAngus (supra) LJG (Hamilton) at para [42]).

As I conclude in this morning's column we all have reasons to bless the memory of Gordon Ross. He achieved something here for folk in his difficult situation, and their family and friends. God rest him.

Glasgow: Forgetting slavery?

"Don't keep your head down. Look up." Whether you're trudging through Glasgow in the summer sleet, or the winter snow, the local sometimes needs reminded to contemplate the grandeur of the place. Edinburgh's skyline sucks the air out of you, a jagged man-made silhouette of spikes and spires. Glasgow's mountainous legacy of wealth is more easily overlooked. 

Its richly appointed statues stand sentinel over the bustling streets, peering down from formidable stone piles and Corinthian columns. Folk only rarely seem to notice the bombast and effrontery of the city chambers. We're more taken with the Duke of Wellington's famous headgear than the tobacco lord's townhouse which now hosts the Gallery of Modern Art. Familiarity breeds - not quite contempt - but a curious kind of taken-for-grantedness. I've been a more attentive reader of the many towns I've visited as a tourist than the fabric of the city in which I now live. I suspect I'm not alone. 

Kevin McKenna has an interesting piece in the Observer this morning, arguing "we Scots must face up to our slave trading past." This passage particularly struck me:

Well, a lot more of us ought to know now and we ought also to be demanding that we quietly take down the grotesque Merchant City signage and simply desist from using the term. And while we’re at it, we can also start looking at more appropriate names for Jamaica Street, Tobago Street and the Kingston Bridge, as well as the other roads and avenues that bear the imprint of evil. After all, we rightly celebrated renaming St George’s Place as Nelson Mandela Place. Of course there is a body of resentment over “reopening old wounds” and “raking up the past”.

I squirmed with discomfort here. Wouldn't renaming these streets represent only another erasure? Don't these streets quietly avow the past? I have a good deal of sympathy with Kevin's basic thesis. Scotland's role in legally-sanctioned kidnap and forced labour still feels marginalised in the public memory, not least in Glasgow. This can amount to what Stephen Mullen has described as a "myth of detachment and non-involvement" in slavery: "it wisnae me."

My secondary education contained next to no Scottish history. Needless to say, slavery and colonialism also went almost entirely unmentioned. In law school, I went on to study how Roman law was used to devise the early-modern duties and responsibilities and master and slave. I read the famous (1788) case of Joseph Knight, in which the Court of Session declared that Scots law did not recognise the institution of slavery. But overall? My understanding of this city's and this country's involvement in the exploitation of slaves remains sketchy, impressionistic. Again, I suspect I'm not alone. 

All that rum and cotton, that blood and toil and tobacco and molasses, has settled mutely into opulent stone I toddle past, all too often, bovine and unthinking. Jamaica Street doesn't (only) bear the imprint of the evil of slavery, but the imprint of our history. That history may not be inscribed on our memories. But these echoes - these nudges - preside over our streets, for those with eyes to see and ears to hear. They ensure, every day, that Glaswegians have no excuse for failing to "face up to our slave trading past." 

Virginia and Antigua, Buchanan and Ingram, these names are indicting, they're our history, and they should stay. 

Lights, camera, court! The People versus Alistair Carmichael...

When the election court convenes in Edinburgh next Monday, Alistair Carmichael's legal argument is fairly simple. "Sure, I lied. Absolutely, I "misstated my awareness" of the memo and how it was leaked on Channel 4. But that fib wasn't about my personal character or conduct. It was only an ickle political lie. And for that reason, m'lud, my election should be upheld." 

Thanks to STV News, that politically unattractive legal argument will now enjoy a much larger audience than it might have. The broadcaster has secured permission from Lord Carloway - the Lord Justice Clerk - for the whole two days of argument to be broadcast live from court one in Parliament House. 

Election courts are ordinarily held in the constituency they concern. STV's intervention will afford the people of Orkney and Shetland much-needed access to the debate about their election. The hearings next week are about the law. Nobody is expected to give evidence. The former Secretary of State for Scotland must be hoping and praying the case against him can be kicked without entering the witness box.

"You say you "misstated your awareness" of the leak. What did you mean by that Mr Carmichael?" "In ordinary language, that's lying, isn't it?" "Why did you lie, Mr Carmichael?" "Are you seriously suggesting that, in dishonestly covering up your role in his leak, you gave no thought to the voters of Orkney and Shetland?" "Are you telling this court that your lies were quite disconnected from your own reputation with your electorate in the northern isles?" 

It is always difficult to tell, but I am not convinced that Scotland's only Liberal Democrat MP would cut an unflustered figure on the stand, his career, income and future hanging in the balance. He does not want his cross-examination broadcast on national telly. 

So what are the legal arguments likely to be? I canvassed these to some extent back in May and June, when I suggested that raising an election petition might be possible. But there is no harm in refreshing the issues, now that the issue has bounced back up the legal and political agenda. An election petition is a special procedure for challenging elections under the Representation of the People Act 1983.

The grounds on which elections can be challeged are convoluted and technical -- to such an extent that the Law Commissions across the UK are proposing that the whole area of law be brushed up, simplified and modernised. But this case will be heard under the old legislation. The recent Lutfur Rahman case, where the mayor of Tower Hamlets was turfed out of office by Richard Mawrey QC, gives a flavour of the complexity of this area of law.

The case against Carmichael, however, is much simpler. It focusses on section 106 of the 1983 Act, which empowers the election court to void an election where there have been "false statements as to candidates." There are four main elements to this which the election court will have to consider. First, the basic tests: 

1. Where a person, before or during an election
2. for the purpose of affecting the return of any candidate in the election 
3. makes or publishes any false statement of fact in relationship to a candidate's personal character or conduct they shall be guilty of an illegal practice 
4. unless they can show that they had "reasonable grounds for believing, and did believe, that statement to be true." 

If an illegal practice can be pinned on Mr Carmichael, his election will be void. Under the Act, a candidate is liable for the lies of their campaigners only to a limited extent.  But if the candidate is the person who has spread "false statements of fact" about a candidate's "personal character or conduct", they are personally liable. It doesn't matter whether or not they were "materially assisted" in their election by their lies. It doesn't matter whether or not the lies made a decisive difference to the result. 

There remains a good deal of confusion out there about what the petitioners are arguing in the Carmichael case. "But Nicola Sturgeon wasn't a candidate in the general election?" "Could you argue that Sturgeon's implied slagging of Ed Miliband knocked the Doncaster MP's chances?" Both of these questions approach the case from the wrong angle. Both Sturgeon and Miliband are irrelevant. The veracity of the leaked memo is also, arguably, irrelevant. The petitioners are arguing that Carmichael lied about his own personal character and conduct in the "Frenchgate" affaire. By dishonestly representing himself a man of honest nature and behaviour, and lying in public about his involvement in the leak affair during the campaign, they contend, he sought to influence his election in Orkney and Shetland.  

On the admitted facts, it is clear (a) Carmichael did lie about his knowledge and involvement in the leaking of the memo (b) he did so during the election campaign and (c) he could not have believed that the statement which he gave to Channel 4, denying any knowledge of how the leak occurred, was true. As a result, the case seems likely to focus on three questions:

1. Can section 106 be applied to false statements about a candidate's own personal character or conduct? 
2. Did Carmichael lie "for the purpose of affecting" his own return as MP for Orkney and Shetland? 
3. And, were the lies he told of a "personal" character? Or did he lie only about his political character and conduct?

To unpack those questions a little further. 

1.  The idea of applying section 106 to lies a candidate may have told about their own character and conduct is novel and debateable. To my knowledge, the Act has never been used in this way before. However, as the judge noted in his Lutfur Rahman decision, the statutory wording:

"... is deliberately wide: 'for the purpose of affecting the return of any candidate at the election.' Although s 106 usually refers to statements made to the detriment of a candidate, the wording is wide enough to encompass a false statement made in favour of a candidate (for example, that he was a substantial philanthropist or had been awarded a medal for bravery) which might affect his electoral chances, albeit positively rather than negatively." [para 104]

Although section 106 has mainly been used to toss out candidates who have slandered their opponents to get elected (for example, Oldham East MP Phil Woolas), as Richard Mawrey QC observes, there is nothing in the language of the statute which excludes the idea of voiding the election of a candidate for fibbing about themselves. But there is at least an argument to be made here. Mawrey's remarks are obiter dicta. If Carmichael's legal team convinces Lady Paton and Lord Matthews that Mawrey was mistaken, the election petition will fall and the petitioners will likely have a hefty legal bill to pay. 

2.  The election court is also interested in intention. It is important why the lies were told. If Carmichael can convince the two judges that his falsehoods had-hee haw to do with his race in Orkney and Shetland, he's home and dry. His skeleton legal argument, published in June, argued the lies he told Channel 4 were not for the purpose of securing his majority in the northern isles. He didn't elaborate on what they were for. If not for that purpose, then what purpose? 

Carmichael's worry, perhaps, is that intention isn't just a matter of law - but of evidence - and might see the bungling parliamentarian called to testify. And that wouldn't be pretty. But judges might be convinced that Carmichael's misrepresentations of his conduct were of such a general nature, to such a general audience, that they couldn't be tied to the race in the northern isles. This is critical. This is a challenge to the result of the election in Orkney and Shetland only. Not the whole 2015 general election campaign.

3. Under section 106, the court is concerned only with lies about "personal character and conduct." A quotation from a past election petition case in North Louth puts the central point clearly:

"A politician for his public conduct may be criticised, held up to obloquy; for that the statute gives no redress; but when the man beneath the politician has his honour, veracity and purity assailed, he is entitled to demand that his constituents shall not be poisoned against him by false statements containing such unfounded imputations."

Carmichael's argument - which thanks to STV, will be broadcast nationally - is that his lies "relate solely to his public or official character or conduct." Glibly, he was lying as Secretary of State for Scotland, in his official capacity, rather than lying as plain old candidate Carmichael, humbly beseeching the good folk of Kirkwall and Lerwick for their support. It was, in the time honoured phrase, nothing personal. 

Is this credible? Heather Green has argued not. Politically, you might struggle to convince many punters that this is an important distinction. But it is quite a thing for a court to void a parliamentary election. None of us should be over-keen to see the judiciary, tossing out political candidates which the people, in their wisdom, decided to support. 

General bribery, intimidation and corruption is one thing. Whatever you think of Mr Carmichael - and in my case, it isn't a great deal - his sin here is arguably of a more modest character. By his actions, he has deprived the people of Orkney and Shetland of an open, honest election campaign. He has deprived them of the opportunity to pass judgment upon him with a clear understanding of his personal nature and behaviour. 

That is certainly enough, more than enough, to justify the anger and disappointment of his electorate. But ought it to be sufficient for a court to expel him from Westminster? You would expect Lady Paton and Lord Matthews to proceed in this case with a degree of circumspection. But parliament made these tough election rules. It gave courts responsibility for adjudicating disputes. MPs invested judges with fearsome powers to cut short their political careers. We shall see.

On the People versus Alistair Carmichael

As The People Versus Carmichael crowdfunder exceeded its £60,000 target, the embattled former Secretary of State for Scotland has lodged his defences today at the Court of Session. The full text of the election petition lodged against the Orkney and Shetland MP under the Representation of the People Act was published last week. 

The petitioners' case follows precisely the lines I sketched in my first blog on the topic last month.  The central issue is not the leak. It is not Nicola, or the truth of the memo. It is the cover up. Or as Carmichael's lawyers comically put it today, his decision to "misstate his awareness of the leaked memorandum" and to mislead the viewers of Channel 4 and his own constituents about the extent of his own agency in bringing the government paper to the attention of the Telegraph.  

The petitioners argue that in denying any involvement in the leak, Carmichael made a false statement about his own personal character or conduct for the purpose of shoring up his tough general election campaign in the northern isles against the SNP. If the petitioners establish that Carmichael's dishonesty is caught by the Act, several gruesome consequences follow, the most obvious of which being a by-election in which the ousted MP cannot stand. Heather Green, a senior lecturer in law up at the University of Aberdeen, has this compelling and clear blog, putting the case for the prosecution, arguing that Carmichael may be vulnerable.

As has been pointed out by Professor Chalmers and others, however, the petitioners' case faces a range of snags and difficulties, hurdles and uncertainties. The 1983 Act has not been construed by the courts in this way before, extending to lies a candidate may spin about their own mischief and their own nature and character. On any view, this is a test case.

This is reflected in the legal papers which have been submitted on his behalf. So what is the essence of Carmichael's defence? He admits he lied. Barring a few cosmetic corrections to the transcripts of his Channel 4 interview, Carmichael largely accepts the facts as narrated by his disgruntled constituents. Interestingly, however, he denies that he authorised or knew that the Liberal Democrats had issued a statement suggesting that "the leak was not from a Liberal Democrat and that is the end of the matter." 

Carmichael also claims that Nick Clegg blabbed without reference to him. When the former Deputy Prime Minister told the media that "Alistair Carmichael's been absolutely clear of course he didn't leak them" – Carmichael's legal papers allege that no discussion had taken place between Carmichael and Clegg about the leak before the former Lib Dem leader started fending off the press and publicly exonerating his senior Scottish colleague. This seems like a remarkable proposition. 

Overall, however, Carmichael's defences are mainly of a legal rather than a factual character. In his response to the election petition, his lawyers make two main points. Firstly, they argue that the Liberal Democrat's lies were of a political, not a personal character. Under the Representation of the People Act, only lies about a candidate's personal character or conduct justify the court vacating an election result. We saw this in Watkins v Woolas. But there is other case law, limiting that kinds of lies that leave an MP vulnerable to judicial intervention.

Citing a case lodged by Scottish Tory MP Nicholas Fairbairn against the SNP in the 1970s, his lawyers argue that "the statements regarding the leaked memorandum do not relate to" Carmichael at all. But even if the court disagreed with Carmichael on that, they suggest his nationally broadcast falsehoods "do so purely inferentially and relate solely to his public or official character or conduct."

Put most simply, he is arguing that he was lying purely for political reasons as the Secretary of State for Scotland, not as the humble Mr Alistair Carmichael, prospective parliamentary candidate trying to win a tough seat in Orkney and Shetland. Like a capo di tutti capi who puts a bullet in your kidney, he alleges, it was nothing personal. And in a single bound, free. If the courts accept this argument, section 106 of the Representation of the People Act does not apply. No illegal practice. No vacated election. No by-election. And Carmichael stays on. This is a Yes, but defence.

Secondly, we have the geographical issue flagged up by Professor Aileen McHarg under my first blog. Although Carmichael's fictional account of his own conduct was broadcast on national telly, we have to remember that the election being challenged is his return as the MP for Orkney and Shetland.  Under the 1983 Act, purpose is important.  In order to kick an MP out of their seat, their lies about personal character or conduct must be "for the purpose of affecting the return of any candidate at the election". 

Although his point is not explored in much detail in the Liberal MPs skeleton arguments, he suggests that "the statements made by [Carmichael] during the interview with Channel 4 news were not made for the purpose of affecting the return of any candidate at the election." Another Yes, but defence. I may have lied about leaking like a rusty colander, but I did not do so in order to hoodwink the voters of Shetland or Orkney into returning me. 

Whether or not you find these arguments convincing, these matters are now commended to the judgement of the Election Court and Lord Eassie and Lady Paton. Whether they are politically defensible is another story. Carmichael may win on the law, but his arguments have potential to do himself remarkable damage in the court of public opinion. Watch this space. 

Lights! Camera! Court!

Should TV companies be entitled to broadcast criminal trials on a regular basis? Ought journalists - or members of the public - to be allowed to sit back in the public gallery, furiously live-tweeting a judge's sentencing statement, or relaying the arguments being advanced by counsel in the latest round of litigation engulfing Rangers Football Club, to the interested public? 

The issue of cameras and tweeting court proceedings contemporaneously has quietly inched up the agenda in Scotland and the UK. Recent years have seen sections of Nat Fraser's trial for the murder of his wife broadcast on Channel 4. STV sought and secured permission to transmit Lord Bracadale's remarks sentencing David Gilroy for the homicide of Suzanne Pilley and more recently, Lord Matthews jailing Angus Sinclair for the Worlds End Murders. 

But it isn't all about the conventional media. During Tommy Sheridan's perjury trial in 2011, James Doleman curated a blog, providing accurate and contemporaneous commentary on the evidence heard in the High Court that day. 

These issues have been weighing on the mind of Scotland's most senior judge, Lord President Gill, who asked his colleague Lady Dorrian to look into the rules governing social and traditional media reporting from Scottish courtrooms. In Edinburgh this morning, at a conference on digital justice, Lord Gill announced the general findings of this review.  He told the conference:

"... access to justice should not operate solely in favour of those already using the system. Access to justice encompasses a broader aim – to open our court s to public scrutiny and to public understanding and, in that way , to de - mystify our law and its procedures. In recent years there has been considerable pressure from the media for the televising of proceedings in the courts. On one or two occasions my predecessors have allowed there to be cameras in court. When I became Lord President it was clear to me that there was no overall policy in the matter. We simply could not go on making ad hoc decisions on individual applications to film or to televise."

So what did Lady Dorrian and her colleagues recommend? Gill outlined the proposals under six key headings which will considerably liberalise media access to Scottish courtrooms, while continuing the protect the integrity of live criminal proceedings:

• Filming of civil and criminal appeals and legal debates in civil first instance proceedings, such as judicial review or hearings on the Procedure Roll, should be allowed for live transmission. Subsequent news broadcasting and documentary film-making should be allowed subject to clear and comprehensive guidelines 
• In certain circumstances and subject to certain safeguards, criminal trials may be filmed for documentary purposes, but not in cases involving children, sexual offences and vulnerable witnesses. However, no live transmission should be allowed for any criminal first instance business, or for first instance civil proceedings involving witnesses. 
• For subsequent news broadcasts, the delivery of the sentencing remarks of the judge should be permissible, with filming focused only on the judge. 
• Similarly, in first instance civil business filming for documentary purposes may be allowed, but should exclude certain cases such as those involving family and immigration matters. 
• Filming should be subject to robust, clear and comprehensive guidelines.
• Journalists who register with the Scottish Court Service to gain access to the electronic portal-based system, should also be required to undertake compliance with the Contempt of Court Act. Journalists so registered should be permitted to use live text-based communication. Any person who is not on the register should require the permission of the presiding judge.

As Lord Gill notes, giving effect to these general principles will require additional work. "This may involve further consultation with the media on practical points", he says. With my social media hat on, I am interested in the final point -- which will allow hacks to live tweet proceedings, but only if they have been put through the wringer on the dos and don'ts of the tough contempt regime of the 1981 Act.

This is a safety-first approach, and would seem to imply that duly registered reporters should be able to tweet from criminal trials while they are ongoing. It will undoubtedly save some journalists, whose court training is a bit rusty, from themselves. If an unthinking reporter inadvertently tweets legal argument heard outwith the presence of the jury, a jail cell of their own beckons, and if that can be avoided, so much the better.  

I wonder, however, if these strictures aren't excessively paternalistic. Are these restrictions really necessary, for example, in less sensitive cases, where criminal penalties are not at stake? It should not, I think, be assumed that folk are only likely to be interested in relating criminal cases, blow by blow, on social media. In particular, the travails of certain football clubs in our civil and tax courts are of considerable interest to a significant section of the public -- and are likely to be reported by journalists and interested citizens, unused to visiting and relaying court proceedings and therefore unlikely to have registered with the Court Service. 

Justice sometimes demands some limits to be imposed on the openness of the proceedings of our courts, but unless some overriding interest dictates otherwise, the principle of open justice must prevail. Weighed on that scale, the Lord President's commitments this morning are broadly to be welcomed. Lord Gill and Lady Dorrian are also to be commended for their openness to the possibilities - as well as the challenges - of these innovations for our courts.

Today's plans lend new meaning to the old principle of open justice, and stand in quiet rebuke to the vision of the judge as a technical Luddite, who still regards the transition from vellum to paper with ill-disguised suspicion.

UPDATE

Lady Dorrian's full recommendations can be read here.

Abortion: the limits of conscientious objection?

An interesting and tricky Scottish case has come up for decision in the UK Supreme Court this morning. Back in 2012, two midwives employed by Greater Glasgow and Clyde Health Board - Mary Teresa Doogan and Concepta Wood - brought a judicial review petition against the health board, arguing that they were being forced to "participate" in abortions, despite their conscientious objections, as devout Catholics, to the practice.

Section 4 of the Abortion Act 1967 recognises the right to "conscientious objection to participation in treatment," providing that "no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection."

Neither Doogan nor Wood were obliged to participate in the medical procedures producing abortions in the Southern General, but the pair were responsible for delegating, supervising and supporting other healthcare professionals in the treatment of patients undergoing termination of pregnancy. They argued that the conscientious objection provisions in the Abortion Act extended not only to participating in abortion procedures, but should also exempt them from responsibility for timetabling and supervising the practices they object to.

At first instance in the Court of Session, Lady Smith rejected this argument, holding that the Abortion Act's right of conscientious objection did not extend to the midwives' case-management responsibilities, as they didn't amount to "participating in treatment." Counsel for the health board argued that the logic of the midwives' argument could very well extend to the ward cleaner, whose scrubbing - in some sense - facilitates abortion in the hospital. Could, should they be able to argue that their mopping representing "participating" in abortions, and to decline to participate on religious grounds? Lady Smith thought not, and rejected Doogan and Wood's argument. 

The Inner House of the Court of Session had other ideas. The midwives appealed, successfully. Lady Dorrian held that Lady Smith's approach was too narrow, and the conscientious objection enshrined in the Abortion Act should be taken to extend - not just to direct participation in abortion procedures - but much more widely, to encompass the kinds of activities the midwives were being obliged to undertake in the Southern General. The Inner House held that:

As Lord Diplock observed in the RCN case, it is a matter on which many people have strong moral and religious convictions, and the right of conscientious objection is given out of respect for those convictions and not for any other reason. It is in keeping with the reason for the exemption that the wide interpretation which we favour should be given to it. It is consistent with the reasoning which allowed such an objection in the first place that it should extend to any involvement in the process of treatment, the object of which is to terminate a pregnancy. This is also consistent with our conclusion that the only circumstance of sections 1(1)(a) to (d) to which the exemption does not apply is section 1(1)(b), and that the only circumstance when the objection cannot prevail should be when the termination is necessary to save life or prevent grave permanent injury, because in such a situation the real purpose is not to effect a termination but to save life or prevent serious permanent injury.

Today, the Greater Glasgow and Clyde Health Board ask the UK Supreme Court to reverse this decision, and to endorse a more limited conception of the right to conscientious objection to abortions. So, "does s.4(1) of the Abortion Act 1967, which provides that "no person shall be under any duty to participate in any treatment authorised by this Act to which he has a conscientious objection", entitle a Labour Ward Co-ordinator to refuse to delegate to, supervise and/or support midwives providing care to patients undergoing termination procedures?" 

That's for Lady Hale and Lords Reed, Hodge, Wilson and Hughes to decide.

Which is hereby pronounced for doom

The jig's up. Building on the head of steam which gathered behind them, plucking the case up from the Court of Session, yesterday the UK Supreme Court dismissed prisoners' last best hope of being able to vote in the independence referendum. 

The justices' detailed reasons will follow in due course, but it is plain enough that none of Aidan O'Neill QC's lines of argument - international law, common law, ECHR rights, European Union law - found any favour. Colour me unshocked. You won't have to update your referendum timetable. Election workers won't have to labour overtime to register a flood of postal votes from Barlinnie and Saughton.  David Cameron's stomach will be unsickened by the thought of "murderers, rapists and paedophiles" voting to save the Union.

Gerry Moynihan QC, for the Lord Advocate, ably dismantled some of the appellant's audacious leaps and bounds of reasoning. The simple fact is: the idea that there is a common law right to vote is profoundly shoogly in law and politically problematic. The history of the Reform Acts, and the gradual expansion in the franchise, is well known and has been driven by political, rather than judicial, decision-making - not in courts, but by parliament.  The idea that judges should conjure up a right from the ether, cut against history, slap a "common law" label on it, and overturn a legislative Act of an institution with "plenary powers" - it is a proposition which proved too rich for the Court of Session, and it is no surprise to find the London bench similarly queasy. Sovereign, it may not be, but Holyrood's decisions are not lightly for judges to tamper with. 

On the ECHR limb, all of the European Court of Human Rights' case-law weighs against the idea that the right to vote protected by Article 3 of Protocol 1 extends to referendums. The provision reads:

"The High Contracting Parties shall hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."

The Court has consistently held that the protections of this Article don't extend to referendums, or to presidential elections and the like. That - elementary - fact made the Convention rights case, that failing to extend the #indyref franchise to prisoners violated their ECHR rights, a very difficult one to make. Nor is this ancient jurisprudence: some of the examples are very recent. While it is true that the European Court has never been met with a self-determination referendum before - and there's an argument that a vote for independence represents a fundamental question of democratic governance which A3-P1 ought to protect and extend to those behind bars - this line of argument was always speculative. The bench yesterday morning didn't radiate sympathy for the proposition. 

Even the counsel for the two prisoners appeared to have given up on seriously pressing his EU law argument yesterday.  The short version of the argument seemed to be: if Scotland votes Yes, Theresa May has sorta said Scots will lose their British citizenship, thereby depriving them of European citizenship - and here's the mighty logical leap - thereby making the two prisoners' exclusion from the franchise a matter of EU law and subject to proportionality review.  One happy consequence of yesterday's decision is that perhaps we'll be relieved of the plaintive bleating of the James Wallaces of this life, and the other girning expatriates who can't vote in September's poll. Their entire hope, best I understood them, hung on this extremely tenuous line of legal argument. The Supreme Court's rapid demolition of the case yesterday puts pay to this nonsense for good.

The law’s delay [sic]

“For who would bear the whips and scorns of time, The oppressor’s wrong, the proud man’s contumely, The pangs of despised love, the law’s delay, The insolence of office and the spurns That patient merit of the unworthy takes…” 

*Biff* In your face, Hamlet. Who says judges lack nimbleness? The spry old customers can get a fair head of steam behind them when they want to. Earlier this month, the Inner House of the Court of Session knocked back an appeal by two prisoners against their exclusion from the franchise in the independence referendum, upholding Lord Glennie's decision - if not all of his reasoning - at first instance. Although the conclusion reached by the Inner House is almost certainly the right one, the judgment left a lot to be desired, and it was inevitable that the disappointed litigants - with legal aid behind them - would take their judicial review all the way to the top. 

What was less clear was the timetable for the UK Supreme Court hearing.  We're a gnat's crotchet away from the referendum, which was bound to focus the Justices' minds - but with remarkable swiftness, they've already summoned the lawyers down from Edinburgh to make their case. The hearing is scheduled for this Thursday, before Lords Neuberger, Kerr, Clarke, Wilson, Reed, Hodge and Lady Hale. As the Supreme Court note on the case neatly summarises, the case turns on the answers to five main legal questions.

1. Are the provisions prohibiting prisoner voting contained in the Scottish Independence Referendum (Franchise) Act 2013 (the "Franchise Act") incompatible with the European Convention on Human Rights and Fundamental Freedoms (the "Convention"), in particular Article 3 of Protocol 1 and Article 10 thereof?
2. Do the provisions prohibiting prisoner voting contained in the Franchise Act breach a fundamental common law right to vote?
3. Do the provisions prohibiting prisoner voting contained in the Franchise Act breach a common law constitutional principle of the rule of law?
4. Does the Scottish Parliament have an obligation, enforceable in the domestic courts, to comply with the United Kingdom’s international obligations?
5. Are the provisions prohibiting prisoner voting contained in the Franchise Act incompatible with the requirements of EU law? 

I would be very surprised if the prisoners prevailed on any of these grounds of argument, but as I argued earlier this month, the issues are arguable and important points of principle are engaged. Under the European Convention heading, isn't an independence referendum more akin to a "choice of legislature" question than the Court of Session recognised, when you take Strasbourg's "practical and effective" approach to human rights protection into account? Shouldn't our courts have the confidence at least seriously to consider the question? 

The idea of a challenge to Acts of the Scottish Parliament on "rule of law" grounds popped up in Lord Hope's opinion in AXA. Moohan represents an opportunity to put some more flesh on the bare bones of Hope's largely unexplained aside in a fashion neither Lord Glennie or the Inner House attempted.  From a wider public law perspective, however, perhaps the most interesting dimension of the appeal is the common law fundamental rights questions. 

Although largely unnoticed in the mainstream media, as the Conservative Party continue to denigrate the European Convention on Human Rights, and the Human Rights Act 1998, our top judges are beginning to talk more about the fundamental rights protected - not by the ECHR - but by the common law.

Handing down the Court's judgment in the recent case of Osborn, which concerned when folk up before the parole board should receive an oral hearing, Scottish judge Lord Reed based his decision, not on Convention rights, but on cardinal principles of fairness under the common law. The upshot? Even if the Human Rights Act is repealed and the Convention denounced, the courts will continue to enforce fundamental rights rooted in the common law tradition. Although Osborn drops hints, the extent to which judges will expand their thinking about fundamental common law rights remains an open question. 

The Scottish prisoner rights case which will be heard this week is a clear invitation to the Supreme Court to extend this kind of thinking, and recognise a fundamental right to vote under the common law, distinct from the voting rights set down in successive iterations of the Representation of the People Act. Canvassing the jurisprudence of courts elsewhere, Lord Glennie was persuaded last December that we do have a fundamental common law right to vote - but held that this didn't extent to referendums, saving the Scottish Government's bacon. 

The Inner House were entirely unpersuaded, holding earlier this month that there are no such fundamental rights, and the franchise is governed entirely by statutory rules emanating from parliament. If parliament decides not to recognise your right to vote? Tough luck. Your only solution is to traipse off the Strasbourg, and argue that your Convention rights have been violated. Although I fully expect the justices' answers to this question to be largely neglected in the mainstream press, they promise to be fascinating and important indicators about the vexed question about the future direction of fundamental rights in UK law.

For those of us who despair about the anti-rights drift in British political discourse, it is a flickering candle at the windowsill, increasingly buffeted and deprived of oxygen by illiberal discourse of the Home Secretary and her newly-promoted Europhobic Tory colleagues, reshuffled into the deck. Sometimes, you tremble for this (dis)United Kingdom.

#Indyref Prison Blues

Go to jail. Go directly to jail. Do not pass the polling station. Do not collect your voting papers.

That's the Court of Session's message to prisoners this afternoon, rejecting an appeal challenging Holyrood's decision to exclude prisoners from the independence referendum franchise. Lawyers for the petitioners have shown considerable creativity in putting together their case, running arguments based on the European Convention on Human Rights, European Union law - and the curious idea that our right to vote is fundamentally protected under the common law of the realm, whatever may or may not be set down in election statutes. 

Lord Glennie accepted this last claim in his decision at first instance, but managed to leap free of its implications by holding that your fundamental rights didn't extend to referendums, leaving the old lags wanting a say in September without a vote. That decision was inevitably going to be the subject of an appeal to the Inner House of the Court of Session. And after today's decision from Lady Paton, Lord President Gill and Lord Menzies, a further appeal to the UK Supreme Court looks inevitable.

For my part, the reasoning in today's Inner House decision is disappointingly sparse on some of the key issues raised by the appeal, particularly on human rights grounds. The Scottish senior judiciary has come in for some flak in the past for its failure to engage seriously with fundamental rights arguments. Professional anxieties about this lay behind the sturdy defence which maintaining the jurisdiction of the UK Supreme Court found amongst many practitioners. 

(It should also represent a cautionary tale for those who think a straightforward solution to Scottish political problems after independence is a vast constitution, with a dizzy array of social and economic rights, protected by strong judicial review in the American mould. If the history of public law litigation in Scotland since 1998 is anything to go by, the Court of Session seems singularly uninterested in assuming this radical role, and can be expected to adopt a conservative and deferential approach to the interpretation of any constitutional rights). 

Under Article 3 of Protocol 1 the European Convention, your right to vote is protected.

"The High Contracting Parties shall hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."

Under the Scotland Act, if Holyrood legislates in violation of your fundamental rights, it exceeds its powers and its laws are liable to be struck down in court. As I have written here in the past, if you examine the jurisprudence of the European Court, the prisoners' legal challenge never looked particularly promising. Strasbourg has, on several occasions - and recently - held that A3P1 of the Convention doesn't extend to referendums, or to presidential elections, but only to elections to the legislature. No protection, no prisoner votes. It was on the basis of this clear line of decisions, and a reluctance to innovate without Strasbourg's nod, that the Inner House reached its decision on the ECHR limb of the argument today.

Yet to my knowledge, Strasbourg has never decided on a disenfranchisement case involving fundamental questions of self-determination. And let's face it, the independence referendum is not like other referendums. It involves a fundamental decision about the lasting future government of the state. It isn't a poll-count about introducing a congestion charge, or a plebiscite on the privatisation of local water authorities. In an essential sense, it engages the choice of a legislature, and broader principles of popular democracy. 

Should we be ruled by Westminster from London and in devolved matters by the Scottish Parliament, or should all of these decisions be made by the distinctive democratic institutions of an independent state? If we are giving 16 and 17 year olds the vote on the basis that the future of their nation is engaged by this poll, doesn't the same go for the 18 year old fine defaulter, jailed for a couple of weeks, or a twenty year old sneak-thief serving a six-month term?

It is at least arguable that the #indyref is a "choice of legislature" question, though contending that it is an "election" may seem a bit trickier. On the other hand, Strasbourg has recognised, time and again, that Convention concepts must be interpreted "autonomously" from domestic law. National law may have a definition of a "home", for example, but your right to privacy and a home life under Article 8 can and must be interpreted independently of those domestic definitions, having regard to the basic principles the ECHR is established to protect. 

While we traditionally think of an election as being a choice about political representation, in principle, I don't see why we have to adopt such a narrow, formalistic approach. As the Court itself has recognised - to significant controversy - in Hirst v the United Kingdom, "the right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion."

Moreover, the European Court has repeatedly emphasised (1) that the Convention is a "living instrument" and must be interpreted in the light of present day conditions and (2) that the rights it protects must be construed so as to make them "practical and effective" in scope, rather than "theoretical and illusory." What are the implications of this? Firstly, it means that the Court's decisions aren't set in stone and it is willing, for good reasons, to depart from established precedents. And secondly, it means that Convention rights should be interpreted without excessive formalism, construed with a view to promoting the fundamental purposes of your rights.

There is room for a nuanced exploration of these issues in considering the scope of prisoners' rights to vote in the independence referendum. Curiously, this "choice of legislature" argument, rooted in the sui generis character of a referendum on self-determination, was backgrounded in Aidan O'Neill QC's extensive submissions at first instance. He seems, however, to have recovered the theme and put the argument to the Inner House of the Court of Session more forcefully -- which essentially ignored it in today's decision. The petitioners argued:

[8] ... that there was no clear and constant body of  Strasbourg jurisprudence against the principle that A3P1 applied to referenda, particularly a referendum of the nature of the Scottish independence referendum. Secondly, the ECtHR in Strasbourg would undoubtedly seek to align its jurisprudence with that of the United Nations Human Rights Committee, which had ruled that article 25 of the ICCPR was habile to include participation in referenda.

Thus the ECtHR, if construing A3P1 in circumstances such as the present, would extend it to referenda, particularly in view of the nature of the Scottish independence referendum, which arose from a legal obligation, focused on the breaking-up of an existing state, and was sufficiently similar to parliamentary elections in that it involved “the choice of the legislature.” Support for the petitioners’ contention could be found in the fact that the UK Supreme Court had shown a willingness to go further than existing Strasbourg jurisprudence where the particular facts and circumstances had not been before the Strasbourg court.

The Court's failure to address these arguments in any thoroughgoing way today suggest this case is ripe for further appeal to London, and another round of argument before the Justices of the UK Supreme Court. On balance, the Inner House's decision about the scope of ECHR rights is probably the right one on the law as it stands. Politically, my own preference is for prisoner voting rights to be vindicated through democratic rather than judicial institutions. But I'd hope and expect these trickier arguments, about the practical and effective protection of democratic rights, and the distinctive character of a referendum on self-determination, to be explored more carefully in that forum than they were in the Court of Session's decision on prisoner voting today.

Paper Lords & Invented Traditions

In the writing of this recent blog, which I might have paraphrased Walter Scott and called Tales of a (Great)Grandfather, I took another look down the spines of our old bookshelf and turned up Francis Watt's (1912) Book of Edinburgh Anecdote. Including scandal, witticisms, gossip, apocrypha and often not-terribly-droll tales about the various doings of the city's native tribes of doctors, scribblers, painters, churchmen, lawyers and spooks - yeah unto the middle ages - it begins with a chapter on Parliament House and wigged and gowned creatures which roost on both sides of the bench. 

The usual cast are all in attendance. Cantankerous Lord Monboddo, who ardently believed that humans were descended from the beasts of the field, and suspected we had vestigial tails discreetly snipped off by industrious midwives. The caustic polymath, Lord Kames, who immodestly banged out tracts on every subject under the sun, from farming to social development, between his judicial responsibilities in court. And Lord Braxfield, the reactionary, grogblossomed old villain, who presided over the High Court of Justiciary as Lord Justice Clerk, and seems to have felt that a great part of the population would be "none the waur o' a hangin'." Particularly pert young men, with the bad grace to read Thomas Paine to weavers, as the not-terrifically-Jacobinical Thomas Muir learned to his cost. 

But there is a nice section devoted to the practice of investing our High Court judges with judicial titles when they are elevated to high judicial office: Lord this - and now Lady that. As regular readers will anticipate, I don't really hold with this kind of frippery. I mean no harm to the learned Lords and Ladies of Council and Session and Senators of the College of Justice, but I can't see how the modest, democratic tag of "judge" would do them any injustice or disrespect. 

It is one of the cherished but suspect saws of a kind of Scottish nationalism, that acute class-consciousness is an outgrowth of a more English sensibility and that a more egalitarian rule obtains north of the border. If there is anything to that spirit, the practice of dishing out magic names to senior Scottish judges remains untouched by it. But as Watt writes, this established tradition of "paper lords" of the court is historically considerably patchier than its current solidity and taken-for-grantedness suggests. There's also a nice passage, echoing Dr Johnson's splendid story about the touchy proprietor of the Isle of Muck. Vanity of vanities, sayeth the preacher.

"Now, Scots law lords at one time invariably, and still frequently, take a title from landed estate. This was natural. A judge was a person with some landed property, which was in early times the only property considered as such, and in Scotland, as everybody knows, the man was called after his estate. Monkbarns of the Antiquary is a classic instance, and it was only giving legal confirmation to this, to make the title a fixed one in the case of the judges. They never signed their names this way, and were sometimes sneered at as paper lords. Today, where the relative value of things is altered, they would properly prefer their paper title.

According to tradition, their wives laid claim to a corresponding dignity, but James V, the founder of the College of Justice, sternly repelled the presumptuous dames, with a remark out of keeping with his traditional reputation for gallantry. "He had made the carles lords, but wha the deil made the carlines leddies?" Popular custom was kinder than the King, and they got to be called ladies, till a newer fashion deprived them of the honour.

It was sometimes awkward. A judge and his wife went furth of Scotland, and the exact relations between Lord A. and Mrs. B. gravelled the wits of many an honest landlord. The gentleman and lady were evidently on the most intimate terms, yet how to explain their different names? Of late the powers that be have intervened in the lady's favour, and she has now her title assured her by royal mandate.

Once of twice, the territorial designation bore an ugly purport. Jeffrey kept., it is said, his own name, for Lord Craigscrook would never have done. Craig is Scots for neck, and why should a man name himself a hanging judge to start with? This was perhaps too great a concession to the cheap wits of the Parliament House, and perhaps not true, for in Jeffrey's days territorial titles for paper lords were at a discount, so that Lord Cockburn thought they would never revive, but the same thing is said of a much earlier judge.

Fountainhall's Decisions is one of those books that every Scots advocate knows in name, and surely no Scots practising advocate knows in fact. Its author, Sir John Lauder, was a highly successful lawyer of the Restoration, and when his time came to go up there was one fly in the ointment of success. His compact little estate in East Lothian was called Woodhead. Lauder feared not unduly the easy sarcasms of fools, or the evil tongues of an evil time. Territorial title he must have, and he rather neatly solves the difficulty by changing Woodhead to Fountainhall, a euphonious name, which the place still retains."

Our Constitutional Imagination #1: The Mission

The idea has taken on a quiet sort of momentum. Unheralded, it has become the constitutional common sense. An independent Scotland would have a written constitution, a unicameral parliament elected on a proportional basis, an extensive list of entrenched constitutional rights, including social and economic rights, and strong judicial review of primary legislation, giving judges the power to strike down laws which violate fundamental rights in court. At the periphery, places like Orkney and Shetland might be given more extensive powers of self government, but little in the way of systematic thought has been given to the sorts of government structures which the rest of the country should have, beneath the national level.  

We're racing ahead of ourselves, prematurely closing what should be a more open, imaginative conversation. We know that the Scottish Government propose that a constitutional convention with some sort of populist flavour should be charged with drafting the text.  But how can the people and their representatives make a real choice about the constitution they want, without a sense of the options and the alternatives? I worry that we're being drawn, unwittingly and to little advantage, into a vortex of conservatism, and a constitutional vision for the new state amounting to little more than the Scotland Act plus.

When it comes to the parliament, what are the key advantages and disadvantages of not having a second revising chamber? What benefits might we be forgoing if we carry on without one? What different international models might be borrow from and adapt to our circumstances? The Scottish Government propose to make the Court of Session and High Court of Justiciary collectively our supreme court. Why not consider creating a new apex court, or a distinct constitutional court like other countries elsewhere? What are the arguments on either side? The ability to vindicate your basic rights in court has obvious attractions. But what are the potential downsides and ambivalences?

And beneath the current constitutional consensus, there lurk a whole raft of potential conundrums and disunities. A proportionately-elected parliament, perhaps. But is the current electoral system the best? Against what criteria should the alternatives be evaluated? For example, the additional member system maintains a constituency link, but the d'Hondt method for allocating seats and the current regional structure favours larger parties. Should an independent Scotland fiddle with the system? We might, for example, extend the use of STV from our local to national elections. But that too will involve some compromises, privileging one set of values and principles over others. 

We owe it to ourselves, to our politics, to pause and consider these matters properly. If only to ensure that we embark on building the new nation with a clear understanding of what we're about. As a Yes vote in September begins to look possible, we're going to have to give serious thought to these questions, and resist the temptation to be railroaded into adopting an unsatisfactory basic law by conservatism, simple lack of imagination, or awareness of the alternatives. To that end, over the next four months I'll be writing a series of articles here, touring potential constitutional controversies, exploring the arguments on both sides and gesturing towards some of the informative international parallels which might inspire (or warn) us, as we set out composing our basic law. 

As you might expect, I have views and preferences about many of these issues myself, but the primary function of this Constitutional Imagination series is not to proselytise for particular constitutional causes.  It hopes to serve a more cartographic purpose, mapping some of the alternatives in an accessible way, aspiring to whet your constitutional imaginations, and get the cogs whirring. If Scotland is to have a constitution devised to a significant extent by its people, its people must begin to exercise their minds more seriously about the options.  Through this series, I hope to make a modest contribution towards that goal.  Watch this space.