"Left, left, left, left, left..."

A canny friend of mine recently asked me a question which has got me thinking. "Why is it," he wondered, "that Scotland has so many newspaper columnists who are not left wing, but who incessantly slag off the SNP for not really being left wing?"

He's right. The logic is mad. Such a critique would make perfect sense from the hard left. The Scottish National Party are social democrats. They maintain that a compromise with market forces is possible, but contend that political power should be leveraged to intervene and mitigate the perverse consequences of those markets. For the impatient democratic socialist, this will seem like a milquetoast regimen. Feeble, deluded about the evils of capitalism, delusional about the ability of the state to effectively intervene within a capitalist economic model, marginalising and misdirecting the political agency of confrontational class politics. These are old ideological battles. Agree or disagree with the arguments - the SNP is clearly open to such a left-facing critique. 

But to hear it articulated again and again from centrists, the soft centre-left, the right and the centre-right, seems barking. "Why won't you embrace a policy platform which is further away from my own political preferences, so I can disapprove of you and condemn you properly as an odious Corbynite sect?" "Why don't you adopt policy solutions of which I and 'middle Scotland' would disapprove?"

This strange tendency was perfectly embodied by Brian Monteith's column in the Scotsman yesterday. Monteith, a former Tory MSP, is not left wing. He presumably supports Osborne's spending cuts. Presumably, he welcomes the idea of a smaller state, cutting public services, and all the cognate consequences of these policy choices. While the question of resources is - to a limited extent - separable from the performance of our public services, it is pretty rich to hear a Tory sympathiser bitch about the logical consequences of cross-departmental spending cuts. Doing more with less is the public policy wisdom of the numpty. You almost always tend to do less with less. Quod erat demonstrandum. 

The Herald's David Torrance - whose critical sensibilities and muleish, contrary attitude I broadly approve of - has a fine line in these kind of articles. Although often dismissed as a Tory - David understands himself as a creature of the centre left. Let's take him at his word. But even embracing his own self-diagnosis -- why does it seem to niggle him so much to find the SNP more closely aligned with his own declared preferences, than the far-left perspective which would make many of his criticisms intelligible? I'm bemused.

A personal example illustrates the strangeness of right-wingers' and centrists' bashing of the SNP from the left. As regular readers of the blog will know, I am significantly more preoccupied by questions of individual freedom and a liberal politics than most Scottish Nationalists, and certainly than the Scottish government. I don't agree with the SNP's more authoritarian justice policies. I find the party's commitment to fundamental rights to be a bit shakier than it ought to be -- though I have been hearted by recent rhetoric in defence of the Human Rights Act.  But it would be perverse to slag off these promising developments which draw the party hierarchy closer to my own convictions, by sneering that the SNP's occasional flashes of illiberal communitarianism are half-baked and less than thoroughgoing. "Call that tyranny? This is tyranny."  Though this is precisely the logic of the party's critics on the centre-right and left. 

Is it simply rankling at perceived hypocrisy? "You talk a good game, but, my Nationalist friend, you are a toom tabard." Perhaps. But the breadth and depth of this critique seems to me to go further than simply reflecting an intolerance for sleekit political rhetoric which successfully gestures left and governs centre-left. This theme seems to have become a niggling preoccupation, returned to again and again, in column after column. I didn't have a decent or convincing answer for my friend. It perplexes.

Gramsci's dictum

This morning, the Herald come out against independence, arguing that a federated Britain, with greater Scottish autonomy, is the precondition for its endorsement of continuing Union. They conclude:

"Substantive autonomy for Scotland's parliament and government could unify Scotland. Such autonomy is not merely an aspiration: it is a demand."

In its critique of the Yes campaign, the paper notes that:

"Antonio Gramsci, the Italian philosopher and politician, famously advocated pessimism of the intellect and optimism of the will. The Yes campaign, understandably, has emphasised the latter but effectively ignored the former."

The newspaper's case is characteristically lucid, reflecting some of the ambivalences I was blogging about yesterday. But given the state of the Westminster debate on "more powers", and the precariousness of the editorial's own reasoning on this question, you've got to wonder whose intellect is insufficiently pessimistic. Cutting to the heart of it all, the paper today endorses a No vote on the basis that Scotland must secure a form of devolution which nobody is offering, and which nobody in UK politics has ever shown any willingness to part with. Now that's what I call optimism of the will.

Let's survey the evidence. Nobody, not a single political party in this country, is offering, has offered, or shows any coherent willingness to embrace the kind of reform the Herald say is the precondition of their backing for the Union. Labour, the Tories, the Liberal Democrats - every one has been given umpteen opportunities to realise a more extensive devolution. Between 2009 and 2012, the great grey federalist hope, Gordon Brown, and his Downing Street successor, knocked back almost every Scottish Government proposal to elaborate Holyrood's economic powers and authority over social security and welfare.

No crown estate revenues, no allocation of oil revenues, no corporation tax, limited income tax powers, no pensions, no minimum wage, no housing benefit, no jobseekers allowance, no disability benefits. Some borrowing powers and the ability to ban airguns is all very well, but it was hardly a radical endorsement of Scottish autonomy. These gentlemen were in high office. They had the parliamentary draftsmen at their beck and call, to deliver a bolder autonomy to Scotland. They were invited to do so. They declined. So what's changed in a couple of years? All three Westminster parties had their chance, had multiple chances, and at every turn, all three have chosen to cut minimalist deals, preserving Westminster's prerogatives, leaving the centre of British politics unreformed.  

Perhaps they've had a change of heart? If so, they've kept the news gey quiet. In the course of this campaign, all three parties scurried off to their libraries and redoubts and came back with platforms for greater devolution. But all produced platforms which are still more readily described by what they refuse to devolve to Holyrood than the powers Westminster is willing to part with.

Still bugger all in the way of welfare autonomy, and a still undisclosed, unagreed degree of flexibility in the collection of income tax. And that's more or less your lot. The Institute for Government produced this vividly illustrative chart, comparing the balance between devolved spending and devolved revenue control in all of the scenarios currently under discussion. The discrepancy between the parties' offers and maximalist devolution should be particularly noted.

And then there are the practical considerations. Even the family magazine of the Conservative establishment report that Cameron's unruly band of backbenchers aren't happy with the idea that their status quo has been "swept away" without so much as a by your leave, and can be expected to cut up rough.

The Labour Party's case for the union has, if anything, amplified their "one nation"  rhetoric, placing critical emphasis on the idea of British uniformity in social provision. Their instrumental case for a No vote is, in essence, having the same benefit entitlements in Carlisle as you do in Cumnock. Against that background, without junking a half decade of rhetoric and thinking, it is difficult to see how Labour could ever coherently endorse the "much greater fiscal devolution and powers of decision-making in areas such as welfare" which, in the Herald view, is the precondition for folk considering a No vote. 

Without a radical transformation of attitude for which there is no evidence, and with no detailed or categorical commitment in these panicked last weeks of the campaign, all the evidence suggests that both key parties in Westminster remain inveterately opposed to shelling out anything approaching the kind of autonomy the Herald demands. Minimum bribe level: one turnip. Vote No.

And it is apparently the Yes campaign which has failed to observe Gramsci's dictum? Fetch Sancho Panza and a mule: the naive federalists of the Herald, Guardian and the Scotsman have a few remaining windmills to tilt at. I can understand the frustration, the sense that a better Britain ought to be possible, capable of accommodating Scottish aspirations for greater autonomy.

But but for the nervous gestures, the manipulative and hollow trick of rechristening bloodless Calman-plus plans "devo-max", and hastily drawing up a timetable to realise these very, very limited new autonomies, none of this has any credibility. A federated United Kingdom is a plan without a constituency, without a committed political proponent, without any depth of support across much of Britain, running contrary to the declared instincts of politicians from both big London parties, faced with a dizzying array of rhubarbing and powerful dissenters on both the Labour and the Tory benches.

 Whur's yer pessimism of the intellect noo? 

What does "sovereignty" of the people of Scotland mean?

David Torrance has a column in this morning's Herald, "Recognition of sovereignty need not threaten UK state."  In it, David takes aim at what he perceives to be the SNP's absolutist and old-fashioned thinking about that slippery term, "sovereignty", arguing:

"In practice, however, the notion of "absolute" Westminster sovereignty has been on the wane since 1973, when not only did the UK join the European Economic Community (thus ceding sovereignty to a wider union) but also sanctioned a "border poll" in Northern Ireland. In a precursor of next year's independence referendum, the latter invited the people of the six counties to choose their constitutional future (in or out of the UK) via a referendum."

"Thus Westminster conceded that the province was sovereign, as in fact it had been since opting out of the Irish Free State some 50 years before. Similarly, the devolution referendums of 1979 and 1997 acknowledged sovereignty in Scotland and Wales. Indeed, throughout the 20th century Parliamentary sovereignty was ceded repeatedly. The tiny Sultanate of Brunei only became independent from the UK in 1984, while this year David Cameron has emphasised the sovereignty of Crown subjects in the Falklands and Gibraltar."

Certainly, different political claims were advanced and recognised in these accessions and referendums - but why should we conceptualise all of them as exercises in recognising sovereignties?  Legally, much of this is problematic. But I'm conscious that law need not - and should not - have the last word on our political thinking.  But even without privileging a legal analysis, I'm not convinced that Torrance's expansive approach to defining sovereignty is terrifically helpful.  

Firstly, it is useful to bear in mind that the concept of sovereignty has multiple traditional senses and meanings. We might be talking about the sovereignty of a state recognised by international law. If you are not a state, you cannot be sovereign in this sense. Alternatively, we might want to focus more narrowly on recent British constitutional traditions, in which parliament is sovereign. Here, sovereignty relates to the idea that parliament may make or unmake any law, and its determinations about what the law ought to be generally cannot be challenged in court, as the validity of American statutes may be constitutionally challenged before their Supreme Court. 

Here, the sovereignty of parliament primarily regulates the relationship between parliament and the executive and judiciary, and between one parliament and its successors. In Torrance's third sense, we have the "Scottish constitutional tradition" of popular sovereignty, echoed by the SNP and others. Despite my Nationalist sympathies, I find much of this is pretty dubious intellectual history, tracing an questionable line from a wilful misunderstanding the oligarchy defended by Declaration of Arbroath, through misconstructions of the poisonous anti-Catholicism of the Claim of Right of centuries later - to the anti-Westminsterism of the Scottish constitutional tradition as promoted in many Nationalist circles today.  I'll vigorously defend the political principle of popular sovereignty, but lord deliver us from the ridiculous fantasy of Scotia's medieval democrats.  

The 1997 devolution referendums did not recognise any sovereignty of the Welsh or Scottish people in any legal sense, nor did joining the EU "cede" - in the sense of giving up, or alienating - parliament's sovereignty either.  Powers devolved are powers retained.  De facto it might be politically difficult for Westminster to reverse legislation adopted by Holyrood, or to abolish it outright, but de jure, the competence exists and the courts would enforce it. The same goes for the law of the European Union, which enjoys supremacy over domestic law - but for the purposes of a UK constitutional analysis, only because Parliament itself has assented to be bound by it.

In his lectures at the University of Edinburgh in the early 2000s, Professor Colin Munro gave us the traditional, if rather starchily Victorian view of Albert Venn Dicey: the Crown in Parliament is sovereign. End of. In contrast with his monolithic structure, David sees a flourishing field of different (and competing?) sovereignties.  European institutions take decisions on the scope of our human rights, and shape our ability to move, trade, work and study freely within its bounds. And David is right. Or at least, half right.

In practice, parliament mostly accepts these decisions and submits to these determinations. Holyrood follows its own path, the people decide on devolution through a legislatively-summoned referendum, and will decide on independence to boot. Who the hell is really sovereign here anyway? As Lord Hope observed in the AXA judgment of the UK Supreme Court, Holyrood is a creature of statute and not a sovereign body. Had the independence referendum preceded without the section 30 order, we might all have had cause to understand the consequences of that fact more clearly.  Sovereignty must be about more than having an influence on the political scene, or promulgating laws. The authority to get your way in the last instance matters.

But surely these realities matters more than the nice, pristine constitutional theory-building? I'd sympathise with that, somewhat. The concept of parliamentary sovereignty is a rotten guide to how the British democratic system functions.  But that doesn't mean that generalising the concept of sovereignty is the best way to knit together a better understanding. 

There is a significant risk of sogginess about Torrance's approach. If we're defining sovereignty as any decision taken by bodies discharging public function which are perceived as legitimate, and are complied with - and at its loosest, David seems to be suggesting something along those lines - where's the limit?

For example, the scale of the UK administrative state has developed significantly since the beginning of the 1900s. Ministers command executive agencies and officers, not entirely freely, but with broad statutory grants of powers by parliament.  Theoretically, parliament remains sovereign and the font of all legitimacy - but de facto, the executive has a powerful defining role. If we're being hard-headed realists, we'd note that ministers and their functionaries often get their way, making regulations, establishing the detail of a whole gamut of entitlement schemes. Parliament may be sovereign, but it is largely left to them. Should we see the administrative state as an alternative "sovereignty" too? 

The forces of organised capital have considerable impact on our law-making and policy-setting. Thanks to privatisation and the outsourcing of delivering public functions, the distinction between public and private bodies is increasingly problematic. Should we see boardrooms and businessmen as representing another alternative "sovereignty"? At its loosest, David seems to be referring to all sorts of legitimated exercises of power by "sovereignty".  I can't see what is gained - and much is lost - by generalising our conception of sovereignty in the manner he proposes.

I'd imagine David would want to draw a categorical distinction between these examples and the examples he gives.  But what's the real difference? Territory? Institutional structures? Ghostly ideas of nationality or ethnicity or somesuch? None of these seem - to me - particularly persuasive bases to make such distinctions, once you've plucked out sovereignty's distinctive characteristics, as traditionally understood.  An absolute monarch who takes good advice, and changes her mind, keeps her throne. If she is deceived by influential underlings, she also remains in place.  The quality of the advice she receives is important for the courtier or the calculating diplomat, but it does not remove her crown; sovereignty is better conceived as a thing apart from the eddies and tides which govern its exercise.

I'm also a mite perplexed by the implication that the creation-myth of parliamentary sovereignty should be seen as an outmoded and unrealistic abstraction - worthy enough stuff to inflict on undergraduates in an arid constitutional law seminar - but of peripheral interest for the practical man of the political world. If anything, the last three years has seen a remarkable upswing in the rhetoric of the "erosion of parliamentary sovereignty".  The notion is consistently invoked to criticise the legitimacy of any and every inconvenient ruling emanating from the European Court of Human Rights. Taking them on their own terms, many of the Tories who've manacled Cameron to an EU referendum would offer similar explanations for their attempt to "repatriate" relinquished powers to Westminster.  

Sovereignty's late flourishing is one of the primary reasons for my skepticism about the possibility of further devolution after a No vote.  Britian may not be a unitary state, but the political imaginations of UK politicians and media are ever-more myopic, uninterested in finding ways to integrate our increasingly politically disunited kingdom.

Our zombie broadcasters continue to ignore devolution. We hear incessantly about "the NHS", "the" education system. Recognising even this little complexity - seemingly impossible. Whatever the realities of devolution and distributed power, if a sovereign parliament sees itself and is seen by its main commentators as the only legitimate game in town - woe for the federalist, trying to unearth a new constitutional politics for the United Kingdom. 

You may well wish things were otherwise, but you might as well plant your seed in the desert.

Money Grubbing Bastards Vol. II

Blessed sanity! "Holyrood set to cut pay link after planned 11% rise for MPs" reports the Herald this morning, and a damn good thing too. 

As I set out here back in July, when these pay proposals first emerged from the Independent Parliamentary Standards Authority, there's no reason whatever why Holyrood should follow suit, adding flipping great wadges of cash to MSPs' already substantial piles.

While I welcome the statement of principle, Robbie Dinwoodie's Herald piece contains this curious passage.

"It is understood Holyrood's cross-party housekeeping committee, the Scottish Parliament Corporate Body (SPCB), is looking at how to break the link laid down in the Scotland Act 1998. It set the salary of an MSP, currently £58,097, at 87.5% of that of an MP.  It is not clear if Holyrood would have to change the act to break this link or if it could be achieved by a legislative consent motion at Westminster." 

"A Scottish Parliament spokeswoman said: "It would be wrong to assume any pay rise will automatically apply at Holyrood. The SPCB is aware of the IPSA consultation and has considered the most appropriate arrangements for determining MSPs' pay. The SPCB will be announcing its proposals shortly."

Reading this, you'd get the impression that cutting the link between MSPs' and MPs' salaries is liable to be technically tricky, perhaps requiring Westminster legislation to effect. But this is nonsense, and Dinwoodie - or whoever he is taking his cues from - has seriously garbled his legals here. A quick look at the parliamentary record, or the 1998 Act itself, or recent events around the Bill Walker case, makes it absolutely clear that (a) it is easy for Holyrood to diverge from Westminster's salary schemes (b) that no fancy legal measures are required and (c) that almost all of Dinwoodie's legal analysis is not just wrong, but obviously wrong.

Let's clear away the fog. Firstly, Holyrood passes legislative consent motions when Westminster legislates in devolved areas. It can never be the other way around, since Holyrood can't legislate about reserved matters. Westminster recognises no such thing as a legislative consent motion.

Secondly, Holyrood can't change the Scotland Act on its own motion.  If further devolution is required to enforce a more moderate pay scale for legislators, Westminster would have to adopt subordinate legislation through an Orders in Council under section 30 of the Scotland Act, as we observed in the referendum debate - not a legislative consent motion as the Herald reports. But if changing MSPs' rates of pay relied on amending Holyrood's founding statute, Schedule 4 makes it is crystal clear that this would be outwith Holyrood's current powers. 

But is it? I think not. If you undertake a cursory examination of the Scotland Act 1998, you'll find no reference to any 87.5% rule governing MSPs' pay whatever. None of this is buried deep in the legal prose. It's all nicely set out under the heading "Remuneration of Members of Parliament and the Executive". 

The basic points: it is for the Scottish Parliament to determine the salaries of its members. Such provision may be made (a) by an Act of parliament or (b) by a motion conferring functions on its Corporate Body.  If we delve back into Holyrood's early history, we'd discover that MSPs took the latter, more flexible course and that it was the Corporate Body, not Westminster, who adopted the policy of pegging MSPs' wages to 87.5% of that paid to their brethren serving in the London parliament.

No queer legal measures are indicated or necessary to detach that peg. The Corporate Body may do so on its own authority, though I imagine they might choose to lay any changes before MSPs in a motion to be validated.  

We had a recent - very visible - example of this authority at work in the Bill Walker case. On this legal basis, Tricia Marwick was able speedily to act to change the salary scheme to cut the reluctant parliamentarian's wages by 90% during any such time as he would spend in the clink. That wouldn't have been possible, if complex constitutional tinkering was necessary.

Contra Dinwoodie, there are no legal impediments or complexities around severing the salary link. We should be able to expect similar decisiveness from Holyrood, in rejecting these disgusting and impolitic proposals.

A Stooge Writes

I'm a sort of academic. I'm completing a doctorate, teach public law in a couple of universities, and with any luck will be able to continue doing so in the future.

A year or so ago, I had the good fortune to be invited to appear on BBC Newsnicht to speak to the legality of Holyrood's independence referendum. This was in the heady days before the section 30 order had been agreed and passed by Westminster. In public, the SNP was holding unflinchingly to its line that there was no question that calling a referendum was within Holyrood's legal powers, will or nil the UK government.  

South of the Border, the London government took the diametrically opposed line: the independence referendum was clearly ultra vires and could expect to be struck down in court.  Not to be outdone, the Labour MP Ian Davidson and his colleagues on the Scottish Affairs Committee composed their own report to the same effect. Unless Westminster gave the nod, he argued, the referendum couldn't happen.

As long-term readers of the blog will recall, along with others, I dissented from both extremes. The independence referendum was neither clearly within or clearly outwith Holyrood's powers under the Scotland Act. It was, I suggested, arguable either way and it was difficult to predict what the courts might do if it popped up on their docket.  In their blithe confidence about the outcome, both the Scottish Government and the Scottish Affairs Committee were being disingenuous, doubtless for political reasons.  In public at least, both embraced the legal reading of the case most congenial to their own constitutional preferences.

On the night, Ian Davidson made waves with his brash handling of Isabel Fraser. The next day, I found myself in the headlines "after it emerged an apparently neutral constitutional lawyer interviewed by the programme was an SNP blogger", to quote Magnus Gardham's article in the Herald. Ian Davidson and Alan Cochrane more or less explicitly suggested that I lacked any academic integrity, and had been acting as a Nationalist stooge, taking the leadership line on the referendum's legality, and in cahoots with a partisan BBC Scotland, tried to hoodwink the Scottish people. Or at least that small segment of the Scottish people who watch Newsnicht.  

Neither of these weighty sages paused for a moment to consider whether what I had actually said mirrored the SNP line-to-take on the legality of the referendum.  If they had done so, they'd have quickly discovered that it wasn't. If I was put up to play the stooge, I played the role but poorly.  But a Nationalist stooge served their purposes, so they measured me up for the costume and the pointy hat. 

At the time, I thought all this was rather droll, and par for the course given the pepperiness of the constitutional debate, but I suppose I ought to have been angrier about the gratuitous way the  politician and journalist felt free to slate my intellectual credibility, by cynically conflating political sensibilities with the outright lack of independence of mind or honesty of character.  

It is with these experiences in mind, that I approach the latest referendum hoo-ha, around Shona Robison's reported questioning of whether Professor Chris Whatley chairing of a Better Together meeting in Dundee was compatible with his role chairing the University's Five Million Questions project, whose platform notes that:  

"...in what is an impassioned and partisan debate the objective neutrality of academia is ideally placed as a forum for illuminating discussion."

Better Together have, predictably, blown a gasket, throwing around super-heated allegations of gagging, and peddling ludicrous victim-fantasies of an oppressive Nationalist state. I'd take this humbug rather more seriously, if there was the slightest chance of the No campaign keeping its peace, had Professor Whatley been detected chairing a pro-independence meeting instead.

But you can bet your bottom groat that such an affiliation would have seen the Professor flayed across a guncarriage, as Cochers gleefully recounted "grave concerns about the fair-mindedness and balance" of Dundee's Five Million Questions referendum project. Perhaps with a little soupçon of SNP totalitarianism and political fixing, for larks. To my considerable amusement, the People's Black-Hearted Unionist now keenly feels the need to uphold the integrity of those in the academic field against their political detractors.  

"Threatening the integrity of academics, especially over their right to freedom of speech, is not the way of civilised societies. Those charged with the responsibility of educating a nation’s future should have the untrammelled entitlement to say what they like when they like and about whatever subject they choose."

We have a right to expect honesty and rigorous treatment of the evidence from our academics, whatever their discipline, but we have no right and no reason to expect them to be without political and constitutional convictions. The "neutral academic" Davidson and Cochrane demanded a year ago, and used to duff me up, is an unhealthy fantasy. Certainly, not every academic will be a party political partisan.  I expect most wont be.  But each of us carries our political and theoretical freight.  

I have no idea how Professor John Curtice intends to vote in 2014, but I do know that he approaches political analysis in psephological terms, seeing politics primarily through the medium of opinion polling. Some - many of us - do not share this theoretical lens. An economist will be disposed to analyse constitutional politics in economic terms, a sociologist or a lawyer could be expected to take a different tack, appealing to radically different views and understandings of the world.  

We needn't resort to the crude ad hominem language of political bias or stoogery to make the case that academic contributions to the constitutional debate should be welcomed, but should also be treated gingerly, assessed on their merits, their assumptions probed.  We aren't a priest-caste, bestowing knowledge from on high on a credulous people. We're in with the bricks of the political and constitutional and social debate like everyone else.  

"Warning rape convictions will fall after law change?"

Just a wee post this morning, in supplement to the weekend's lengthier disquisition on the arguments for and against abolishing corroboration currently gripping Holyrood. Today's Herald carries an article, headlined "Warning rape convictions will fall after law change." Cobbling together submissions from the Faculty of Advocates and the Law Society to Holyrood's consultation on the proposed reform, the piece makes two main claims, the one plausible, the other - to my mind - decidedly less so. 

Firstly, they argue that abolishing corroboration is unlikely to increase the conviction rates for sexual offences. The Faculty argue that it "is a fallacy to believe that by ­prosecuting cases even where there is no corroboration, the proportion of successful cases will increase. The reverse is more likely to be true." This has a robust logic to it. If cases are currently being dropped for want of corroboration, they inevitably rely (at least partially) on the evidence of the complainer alone.  The complainer may be a credible witness, but the accused may also cut a tolerably credible figure. 

These are never going to be strong cases whether or not the corroboration rule applies, coming down one person's word on oath against another. Yet these are precisely the additional cases which this reform expects and anticipates will be tried in the High Court in future. Increasing the number of weak and difficult cases being prosecuted seems likely to increase the percentage of cases resulting in acquittal, not to increase the overall Scottish rate of conviction.  

That said, it isn't obvious that it is the rate of conviction, rather than the number of convictions, that we should mainly be concerned about.  It's simple mathematics. If convictions are secured in 40 of a 100 cases, your conviction rate will be higher than a situation where the accused is sent down in 47 of 120 prosecutions.  But why should the rate of conviction, rather than the number of prosecutions by privileged as the preferred measure? 

There are certainly arguments one can make. A greater number of unsuccessful prosecutions multiplies the number of disappointed complainers who have given evidence in court, which is often a harrowing experience, potentially compounded by a sense of being disbelieved.  On the other hand, it isn't obvious that a terse explanation from the Procurator Fiscal that your case isn't being taken up is any less disappointing for victims, although it spares witnesses the experience of going to court and being, often very aggressively, cross-examined. 

(By the by, it also seems incredible to me that abolishing corroboration will lead defence lawyers to focus far more brutally on discrediting the evidence of the complainer, as some have argued. The idea that this doesn't already happen deserves a bleak laugh.) 

But the Faculty and Law Society want to have their cake and eat it too. Not only do they argue that the proportion of guilty verdicts in sex offences might fall. They also hazard the idea that abolishing corroboration might result in the acquittal of people who are convicted under the current dispensation.  But how? The lawyers argue that:  

"If there is no legal requirement for corroboration, there is at least a risk that the police will not investigate with a view to finding corroborative evidence if it exists. This could mean that cases which currently result in conviction will, following the change, result in acquittal."

This risk seems fantastically remote to me, particularly in the field of alleged sexual offences. It assumes that the thoroughness of police investigations relies exclusively on the current evidential rules. There's little reason to believe this for a moment. Certainly, I can see that concerns about achieving a formal sufficiency of evidence forms part of how the police handle cases, currently representing an important quantitative hurdle for an investigation to overcome.

I wonder, though, if the Faculty's logic doesn't curl back on itself.  They argue that the police currently work to the evidential rules, seeking corroborating evidence. As we know, corroboration only requires two independent sources of evidence to bring an accused to court. Following the Faculty's logic, is one "risk" of the current rule that the polis cease investigations having found the two bits of evidence required to meet corroboration instead of fully canvassing the field? Doesn't the corroboration rule also carries the "risk" of encouraging the police artificially limit their investigations too? Perhaps we ought to extend corroboration to require three pieces of independent evidence, or four, to encourage the police to investigate things properly?

This "risk" seems about as proximate and plausible to me as the idea that, absent corroboration, police officers won't bother to conduct proper enquiries. Particularly in the politically charged field of sexual offences, where significant moves have been taken in recent years to rethink how the authorities respond to reported incidents. 

Nothing here implies an especial faith in the competence of the police. To err and to cock up, to miss and to idle off is human. At least now and again. The overlooked line of investigation, deftly exposed by the defence, is a staple of courtroom drama.  As long-standing readers will know, arguing that we should trust prosecutors and trust the police is liable to make me baulk. It's nothing personal.  I just think we're all better off treating these powerful public authorities cautiously, with a worldly suspicion.  And if the police put together a shoogly case, you can bet your last shilling that defence advocates will take the opportunity to point it out and there will be consequences. 

 

As I observed over the weekend, I'm still swithering on the issue of whether corroboration should be abolished or retained, but for the Faculty to try to shoehorn in such a remote "risk" to buttress their embattled defence of corroboration seems less than convincing. 

The Missing Crown Affair

In the newspapers this morning, there is much understandable outrage and calumny that, even if sentenced to the maximum term for his crimes, Bill Walker cannot be deprived of his seat in Holyrood, despite the MSP's comprehensive condemnation in Edinburgh Sheriff Court yesterday.

The Scotsman calls for his resignation. The Herald argue that "that this convicted violent offender has not resigned his seat and cannot be forced to do so under existing parliamentary rules is an affront to women and a disgrace to Holyrood".

That Walker cannot be forced from office unless sentenced to more than a year in prison has been treated primarily as an unhappy quirk of electoral law by the press. Today, the Herald floats the (to my mind, legally implausible) idea that Holyrood may have the power to introduce its own recall law. I doubt it can. In the alternative, they suggest that Westminster should be encouraged to enact reforms, including perhaps the abortive, long-delayed proposals to introduce a right to recall parliamentarians. 

Largely escaping scrutiny on today's front pages and leaders dealing with this story are the Crown Office and Procurator Fiscal Service's decisions in this case.  That Walker won't be disqualified from office, and will effectively decide for himself whether he stays on, isn't just down to how the Representation of the People Act 1981 is drafted.

It is also down to a decision, taken by Scottish prosecutors, to try Walker in a summary court, with maximum sentencing powers of twelve months.  As I argued yesterday, for an organisation which makes much of its commitment to dealing robustly with domestic violence, to treat a man in this fashion who has committed over twenty assaults, against four people, across decades, seems bewildering. Few folk I mentioned this to yesterday could credit it.

Curious to know more, I send the Crown Office a wee inquiry this morning.  Why and how was the decision made to prosecute Walker before Sheriff Mackie alone, given the scope of his offending and the Crown Office's repeated public commitments to take domestic violence seriously? Here was what a spokesman had to say:

To unpack that a bit, the statement confirms that the local Procurator Fiscal initially intended to see Walker tried by a jury, on indictment. I'm told that the charges numbered around thirty at this stage rather than the twenty-four which proceeded before the sheriff in Edinburgh. If the Procurator Fiscal had proceeded with this plan, today, Walker might well have been facing the serious possibility of being relieved of parliamentary office, and a sentence of anything up to five years in jail. So what happened, and why?

From the statement, consideration of Walker's case clearly climbed up the Crown's hierarchy, ending up on the desk of the prosecution service's senior figures, Crown Counsel, who usually spend their time prosecuting cases in the High Court, and generally concern themselves only with the most serious of criminal cases.  On one level, that the case was considered at this level in the organisation isn't surprising.  Walker is a public figure, a sitting MSP, and his prosecution was destined to be attended by controversy.

But why did Crown Counsel decide Walker's case was fit for summary decision, given the scope of the charged against him? The statement offers only the usual boilerplate. Further questions might be asked. Was sufficient weight given to the public interest in the effective prosecution of domestic abuse? For example, the Crown now, as a matter of policy, follows a presumption that knife-carriers who are caught a second time, carrying an illegal weapon, will be prosecuted on indictment in the sheriff court.

Why was the Walker case regard as any less of a priority? The historical nature of "facts and circumstances of" the offences? Surely not. So why? Did the Crown perhaps miscalculate, assuming that Walker would make a guilty plea, but finding him stubborn, and consequently itself stuck in a procedure which on some views, was inadequate to the gravity of his offending? Did the Lord Advocate Frank Mullholland sign-off on, or was he consulted in the decision-making process to demote this prosecution to summary level?

More answers, if and when I receive any.

UPDATE

Late yesterday afternoon, while I was out carousing, I received this supplementary statement from the Crown Office. Asked about what role, if any, Law officers played in the Walker decision, the spokesman responded:

"I can confirm for your background that the protocol with cases involving members of Parliament is that the Law Officers have no role in the decision-making process, which is dealt with by Crown Counsel."

Graham Spiers: One for the Memory Hole...

A hat-tip to Love and Garbage on twitter for this sterling example of intellectual consistency and serious-mindedness from Herald football columnist, Graham Spiers. The topic: the Offensive Behaviour at Football Act and subsequent police enforcement measures taken under it.  In an article headlined "How the SNP have made policing fans a minefield" published yesterday, Spiers suggests that the Act was  

"... a piece of legislation that many - this writer included - had doubts about. The act seeks to do what it says on the tin: stamp out “offensive behaviour” such as bigoted or sectarian expression. There has been plenty of that around the Old Firm over the years, so to that end all decent-minded people felt that the law should crack down on bigots."

Cataloguing what he now perceives as the Act's problems, Spiers continues:

"Someone said to me: “A law never works if it cannot be objectively measured.” This absolutely captures the problem of the Offensive Behaviour at Football legislation. We got a glimpse of the mess the Scottish government was getting into when, in June 2011, Roseanna Cunningham, not having realised how much she had chewed off, had to frantically backtrack and delay the processing of the bill.

That day it took a mere half hour of questions to realise that Alex Salmond and the SNP, wobbling towards their legislation, hadn’t quite appreciated the acuity of supporters who wanted to defend their right to hold political or cultural positions in song and slogan. The Offensive Behaviour bill was duly delayed.

But its final clarity, when put on the statute book last year, was scarcely enhanced. It has all become quite a dog’s breakfast. Meanwhile, football supporters in Scotland feel like they are under a type of surveillance once associated with life behind the old Iron Curtain."

All of which gives the impression that the judicious Mr Spiers was a long-standing critic of these proposals, who set out these concerns about the clarity of the legislation and its definitions at the time, sorry to see his predictions about the illiberal and reactionary potential of this legislation borne out in practice. The only problem with this little pen-portrait is that it's a self-serving counterfeit.

Spiers refers to Roseanna Cunningham's Justice Committee appearance in 2011 which was not, with the best will in the world, her most triumphant parliamentary performance. He neatly glosses over his own. On the 6th of September 2011, the Scottish Parliament's Justice Committee had the benefit of Mr Spiers' own evidence on the Offensive Behaviour a Football Bill as it was being rammed through Holyrood. No doubt he put his concerns to our tribunes? Articulated these "doubts"? Quantified those anxieties about how this vaguely-drafted piece of legislation might operate in practice?

Er. Not really. Quoth Spiers:

"I am in favour of this bill in principle. If someone asks whether I want to live in a country where thousands of people can shout about the Pope and say “F the Pope”, I say that I do not want that in a football stadium in my country. In principle, I am in favour of the bill."

Okay. So that isn't exactly a doubt-wracked assessment of the draft legislation, but perhaps further on in his testimony, Spiers really got to grips with the detail of the Bill, and the concerns many folk articulated at the time about the scope of its provisions? Fife SNP MSP Roderick Campbell, himself an advocate in a past instantiation, raised some of these concerns with him in the Committee session.

Roderick Campbell: "I will follow up on three themes that were developed in the earlier session. I would like to hear the panel’s views on the suggestion by the Rangers representative in the previous session that by legislating we are using a sledgehammer to crack a nut, and any comments on the context and clarity of the legislation, particularly from Graham Spiers and Pat Nevin."

In all fairness, Spiers' response was not the model of clarity, but the gist of his answer and the scope of his doubts was not that the Bill was too broadly drafted, overcriminalised football fans or threatened free expression, but that its provisions may be extraneous to requirements, given existing common law and statutory offences which apply to conduct in and out of football grounds.

Graham Spiers: "There is probably some substance to that complaint. As much as I wish the bill well, it seems to me—although I am not an expert on the statute book—that there are already contingencies in place such as religious hate crime law, breach of the peace, and other laws that give the police powers such as banning orders to apprehend supporters. There is a lot of stuff currently on the statute book that could deal with many of these problems, so I am a bit mystified as to why we must have an extra load of law—if I can put it in that way—to deal with the issue.

I suppose I need to qualify that by saying that I have been aware this morning that a lot of people are complaining about the anomaly between crimes that are committed in a football stadium and crimes that are committed in the street or in a bus shelter. People have said that that is odd, but a part of me says that it is not. I have been going to these games for decades, and there can be a particular poison in a football stadium. The expression of that may be found out in the street, on the factory floor or wherever, but it nonetheless finds particularly acerbic expression in a football stadium, so a part of me wants some type of specific law to deal with that.

That answer is perhaps as clear as mud, but I hope that you get what I am trying to say."

As Spiers notes in yesterday's Herald piece, the legislation he approved of in September did not differ materially from the final text adopted by the Scottish Parliament in November.  He looked at the "dog's breakfast" in the autumn of 2011, and enthusiastically endorsed it.   

Better one sinner repenteth and all that, but mightn't the entire debate have been improved, if folk like Spiers hadn't given the Scottish Government spurious political cover for this cobbled-together enterprise, had actually read the draft legislation properly when it really mattered, rather than composing self-righteous jeremiads now, when the reactionary legislation which Spiers himself helped to get on the statute book is enforced by the police in a predictably illiberal fashion?

The first peep from a deflating political football?

There's a couple of wee snippets in the Herald and Scottish Star (not online) today about an abortive prosecution in Falkirk's Sheriff Court yesterday under the Offensive Behaviour at Football Scotland Act. The details in the brief reports are sketchy, but the accused - Steven Dickson - was alleged to have been the worse for drink and to have turned the air blue aboard a train back to Glasgow, returning from a Celtic match against Dundee United.  Witnesses suggested that the words "hun" and "Pope" were used or sung. Dickson was put up before the sheriff in Falkirk to answer for the conduct imputed to him, which was alleged to have put elderly fellow travellers in fear, alarm and "distress".  The reports indicate that he was charged under the new legislation, in preference to your old fashioned "breach of the peace". 

As you will recall, the Football Act criminalised "offensive behaviour at a regulated football", which explicitly included behaviour "on a journey to or from the regulated football match" s2(2)(b)(iii).  So what's the precise ambit of the offence? As for the behaviour itself, it must either "express" or "stir up" hatred against a religious group or social or cultural group with a religious affiliation, or colour, race, nationality, ethnicity, sexuality orientation, transgender identity or disability, or be threatening, or "other behaviour that a reasonable person would be likely to consider offensive".

The second test which must be satisfied is that the offensive behaviour alleged is or would be "likely to incite public disorder" 1(1)(b). Here, however, Holyrood worked a queer little incantation.  It added a subsection which makes clear that:

1(5) For the purposes of subsection (1)(b)(ii), behaviour would be likely to incite public disorder if public disorder would be likely to occur but for the fact that -
(a)  measures are in place to prevent public disorder, or
(b) persons likely to be incited to public disorder are not present or are not present in sufficient numbers.

The situation this section aimed at were well-policed football grounds, where the strains of the Sash ring out, say, but order is undisturbed. Ministers were absolutely frank: they want the singers nicked, and this is the section which they hoped would allow police officers to do so, on the theory that sectarian ditties, of themselves, have a tendency to disturb the public peace. You could even - at least theoretically - commit this offence in a room by yourself (once the judicial imagination has supplemented your audience with a suitably provocable crew). So what happened in Falkirk? Sheriff Caldwell appears to have found that there was no case to answer against Dickson, and he sauntered free from court. His defence agent, Tony Callahan reportedly submitted that:

"We have heard he was seated, no problem at all. Derogatory does not mean offensive. Nor was his behaviour likely to incite public disorder".  

Reporting of the Sheriff's remarks were limited to the observation, directed to the PF, that:

"You have to prove his behaviour was likely to cause a reaction of disorder in others".

From these very sketchy reports, it isn't entirely clear precisely what the Sheriff found wanting in the prosecution's case.  Assume, for the sake of argument, however, that both he and the procurator fiscal  faithfully applied the law as it was drafted, and did so in full understanding of subsection 1(5)(b)'s curious provisions, inviting the court to imagine fictional, potentially inciteable persons when assessing whether the conduct complained of was criminal or not (although it is impossible to say, on the facts before us, whether or not either might have fallen into error, and missed the significance of the subsection).  

Imagine you are a prosecutor. How the devil would you prove that words or ditties - such as Hun, or Papal lyrics - are likely to incite public disorder in the absence of any disorder, in the absence of likely insitees? Find a police officer willing to say that she's witness brawls break out or a stramash be provoked by their invocation in the past? Is it taken to fall within judicial knowledge, whether a given aspersion cast or vocabulary used is, of itself, "likely to incite disorder"? As s1(5)(b) of the Act makes plain, prosecutors don't have to show that anyone actually on the train was likely to be encouraged to mischief by references to the Bishop of Rome, or to Huns. In this case, responses to the accused's conduct seem to have ranged from abandoning the coach he was seated in and complaining to train staff, to (most likely) staring fixedly at the wall in an effort to ignore the antics of which he was accused. Certainly, no disorder in the carriage, no mêlée on the train resulted.

Defenders of the legislation would likely argue that the intellectual challenge this imposes on courts doesn't substantially differ, for example, from the older common law of breach of the peace.  A breach prosecution must demonstrate "conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community". Significantly, the Crown don't have to prove that any actual fear and alarm resulted from the conduct either.  Legally, it is an "objective test", and asks whether the conduct would be genuinely alarming and disturbing to any reasonable person, rather than whether anybody in the real world was actually alarmed or disturbed. 

You might well argue that the Football Act calls for an essentially similar exercise of the judicial imagination, albeit on a question of disorder, rather than alarm. I'm not so sure. For one thing, judges are invited to consider conduct alleged to breach the peace in context. The public train, the private house, the doorway to a high street bank, and so on. The Football Act explicitly requires sheriffs to populate the context with imaginary additional characters, to chock the peaceful train full of irate "the Rangers" supporters on the bevy, in reaching any conclusion about whether disorder is liable incited. That's a different, altogether trickier, species of speculation to engage in.

It's still early days in the enforcement of this legislation, and thus far, no cases have made it to the Court of Criminal Appeal on the nicer legal arguments which it might raise, and like this Dickson case, summary cases aren't generally reported in detail in the Scottish press. It would be an irony, however, if this piece of legislation, so rapidly clattered through Holyrood with such hot rhetoric, were to miscarry and actually prove a less effective instrument than the common law to prosecute some forms of generically "offensive" conduct with a loose football affiliation, like making a post-match boozy racket aboard trains. 

It also puts prosecutors in a tricky situation. For political reasons, you might well expect procurators to feel compelled - or at the very least encouraged - to prosecute football-related misconduct under the Act.  Ministers have to report back to Holyrood on its operation.  Folk will, understandably, be keen to demonstrate that it was a "vital tool" in the prosecution of football offenses, rather than a dud, agenda-driven reform that was only half thought through.  It is too early to say for certain, but the Dickson acquittal at leasts suggests - no doubt worryingly for the ministers involved - that the new legislation may prove less effective, and provide trickier legal standards for procurators fiscal to navigate, than the common law breach of the peace which they will now, understandably, be more reluctant to charge. 

Trapper Cameron's humbug & poppycock...

Quoth the Herald this week, in a piece headlined "Cameron under pressure to stage vote on independence"...

"The referendum talks centre on the issue of a Westminster parliamentary order, which UK Government ministers insist is necessary to enable Holyrood to hold a legal poll given that Westminster is the UK's constitutional authority. However, the so-called Section 30 Order is being offered on condition there is just one in- out question on the referendum ballot paper, a condition Holyrood is not willing to accept. Mr Cameron is equally adamant he will not accept a two-question referendum, believing it would lead to confusion and could be challenged in court." (my emphasis)

If the Prime Minister believes that, then he's poorly advised or playing the tricksy lawyer.  At the risk of rehashing familiar themes, Holyrood enjoys legislative competence under the Scotland Act over all things not explicitly reserved from it to Westminster. As the UK Supreme Court have confirmed in AXA General Insurance v the Lord Advocate, "Acts of the Scottish Parliament are not subject to judicial review on the grounds of irrationality, unreasonableness or arbitrariness" at Common Law (Lord Hope, para 52).  Instead, Holyrood's powers are limited by section 29 of the Scotland Act, and the institution cannot legislate contrary to the rights enshrined in the European Convention on Human Rights, in conflict with the laws of the European Union, or adopt laws which "relate to reserved matters".  

And here's the rub.  Under section 30 of the Scotland Act, by Order in Council, Cameron's government is empowered to vary the list of matters reserved to Westminster, as they are set out in Schedule 4 and 5 of the Scotland Act.  This doesn't require primary legislation in Westminster like the Scotland Act 2012.  Her Majesty's Ministers are able to lay an order before both houses of parliament, and in a trice, with the consent of Lords and Commons, the list of reserved matters and statutes protected from modification is amended. Sounds terrifically easy, doesn't it? By canny deployment of a single piece of paper, Westminster could give Holyrood the power to amend the Misuse of Drugs Act, for example, or re-empower the Scottish Parliament to make rules and regulations respecting Antarctica. 

Essentially, this is what is being proposed for the independence referendum.  But why? As I've outlined at greater length before and elsewhere, as is, the referendum faces a potentially tricky legal predicament.  Both "the Union of the Kingdoms of Scotland and England" and "the Parliament of the United Kingdom" are matters explicitly reserved to Westminster in the Scotland Act.  For a referendum Bill from Holyrood to be intra vires, it cannot "relate to a reserved matter".  An independence referendum, or indeed a question asking the public about further devolution of powers from Westminster to Holyrood, arguably - arguably - "relates to" these reserved matters, putting its legality in doubt. 

Contrawise, we can contend that referendums are not reserved at all, that a referendum Bill has no domestic legal force to enforce independence or further devolution, amends to existing enactments - and accordingly ought to fall within Holyrood's purview and powers.  Those are the essential arguments, which are likely to be aired in court, if Westminster doesn't take the opportunity afforded by section 30 of the Scotland Act to clarify that referendums on reserved matters - or at the very least, referendums touching on protected constitutional concerns - aren't powers reserved from the Scottish Parliament.  Westminster need not do so.  It may try, as proposed earlier this year by Michael Moore, to manipulate this legal uncertainty, employing it in a gambit to force Holyrood to ask only one question, on peril of legal challenge and delay.  

The critical point is this: it is within the power of UK ministers to expose or insulate any referendum - asking one question or two - from the ravages and delays of litigation. It need not take on the burden of legislating for a referendum itself.  All that is required in a section 30 order, shorn of unacceptable conditions.  For the coalition, the question is how brave they are feeling, to enforce their own preference for a single question. They ought to be frank about that.  This is entirely about dictating their own preferred referendum terms to Holyrood, and no amount of cavil or weasel-rhetoric from Cameron, Moore or Jim Wallace changes that.

With all that in mind, come back to Cameron's reported "concerns". We can see that it is within the Prime Minister's capacity to immunise the independence referendum from legal challenge, whether only a single question is posed, or another is also asked, concerning enhanced devolution. We've also seen that there is no legal basis for challenging Holyrood's referendum, save for section 29 of the Scotland Act.  While Cameron may argue - as others have argued - that a multi-option or multi-question referendum risks confusing people - it is simply fiction to protest that a two question referendum is peculiarly susceptible to legal challenges which a single question referendum won't face. 

Two roads diverge in a forbidding wood. The one path brings us directly to our destination, the other ranges circuitously about the forest, adding hours to our journey. Cameron is like the man who tries to dissuade the weary traveller from taking the shorter path, warning him that the way is trapped and perilous, but who busies himself, maintaining the selfsame tripwires which he warns you of, wishing to be well thought of. Trapper Cameron's passive voice is canny but transparent poppycock. A two question referendum "could be challenged in court" if and only if he and his gambling cronies in the UK government try to make Holyrood work their will with a mousetrapped section 30 order which tries to ordain that only one question is posed in the referendum.  To imply anything else is rank humbug, devious hogwash.

The scandal of Scotland's hacking (non)scandal...

Quoth Alex Salmond at FMQs on the 8th of March, in response to a question from Willie Rennie about phone-hacking by newspapers...

"I do not know whether Willie Rennie managed to attend First Minister’s question time last week, when I reiterated and made absolutely clear my full support for the police investigations south and north of the border and my full support for the Leveson inquiry. Since the then Government did absolutely nothing about it, he should take on board the findings of operation Motorman. I promised last week that the document would be placed in the Scottish Parliament information centre, in case the identification by the information commissioner of potential criminality in respect of data protection had not been fully understood by members. I advise Willie Rennie to read the list, which extends across the London press—there are very few Scottish examples in the analysis. Every part of that document should be analysed, and we should support the police inquiries into phone hacking and the Leveson inquiry to the hilt."

The implication being, more or less, that save for the odd chancer and scallywag amongst the Scottish hacks, the invasive practices, blagging and the illegal acquisition of private data, were more or less limited to the London media and the spangled and sorry characters, unlucky enough to catch their eye. As Scottish politicians, we needn't trouble ourselves over much one way or the other. After you, Lord Leveson.  In point of fact, if you read the Information Commissioner's Operation Motorman reports, you will indeed find few Scottish titles, but Salmond oversimplifies. For simplicity, I'll quote my summary from this piece of last summer:

The Commissioner's second document contains a breakdown of transactions showing the extent to which journalists from different media outfits had made unlawful bargains to secure private data about individuals who attracted their curiosity. The table is dominated by papers published on a UK wide basis (there is no separate record, for example, about the News of the World operation in Scotland), but includes the Daily Record, with 7 transactions where private information was unlawfully tafficked for by two Record employees. A number of other papers have (or had) Scottish wings. The Commissioner does not break down these confirmed transactions by jurisdiction, so it is impossible to say on the basis of the published data what "share" Scotland might have in the News of World's 228 positively identified transactions, nor for that matter any of the other papers (many of whom ratcheted up far, far more identified transactions than the defunct News of the World).

For that reason alone, Salmond's bluff confidence in the Scottish press is utterly unwarranted, the aggregated UK data being equally consistent with rank invasions of privacy north of the Tweed - and with saintly press observance of legal norms. On the data published by the Information Commissioner, it is impossible to tell.  

Fascinatingly, the Sunday Herald published a very important article this weekend on the hitherto hidden Scottish aspects of Motorman. And a demolition of Salmond's self-congratulatory version of Scottish press exceptionalism it proves.  Based primarily on quotes from a key investigator involved in the Motorman investigation, the paper reveals that Ally "McCoist named as victim of black market in illegal information".  The investigator, Alec Owens, claims that:

"Amongst the files there were a lot of Scottish telephone numbers for reporters, a lot of Scottish numbers like 0141, 0131. A lot of numbers I recognised as Scottish. There were a lot of victims in Motorman that could be related as Scottish."

And that:

"There was a lot of information about ... Scottish reporters. One in particular, who I can't name, came out very strongly and, had we been allowed to do the job we wanted to do, he would have been in the top 10."

A few Scottish witnesses are appearing before the Leveson inquiry today, including the Chief Constable of Strathclyde Police, Stephen House and Herald editor, Jonathan Russell, but Salmond is right in one respect. As a judicial proceeding sitting in London, presided over an English judge, under English procedure, assisted by English lawyers, Leveson has focussed pretty unstintingly on the activities of Fleet Street and the Metropolitan police. And fair enough too, to some extent.

But given the vast ambit of his terms of reference, overburdened by points of interests and questions to be examined, I'd be shocked if Leveson really has anything interesting to say about what has transpired north of the border. It simply isn't a priority among his many priorities. But shouldn't the subject interest Scottish politicians? Shouldn't this trouble parliamentarians who are generally keen to cultivate an alternative Scottish political space? Perhaps even trouble them into activity? Remember, press regulation is not a reserved matter under the Scotland Act. Devolved institutions may decide to defer to Westminster-ordained investigations, but they need not. Given this weekend's revelations from the Sunday Herald, the complacency and indifference of Scottish politicians about the implications of the hacking scandal for Scotland and in Scotland is increasingly inexcusable.

Bill Walker: (Sunday) Heralding trouble?

Most of you will have read today's Sunday Herald revelations about SNP MSP Bill Walker, who has now been suspended from the party and parliamentary group. In a report headlined "Revealed: MSP's history of violence against three ex-wives", the paper's investigations editor Paul Hutcheon draws from a range of sources, including interview material from Walker's second and third wives, to demonstrate that Walker was a serial domestic abuser during his first three marriages. Hutcheon also quotes extensively from court records concerning Walker's divorces, including the grounds cited by his first wife:

"Open files in the National Archives of Scotland, which can be ordered and inspected by any member of the public, reveal his first wife's reasons for divorce."

Is publishing this information problematic? You well might think not - think it positively desirable for the public to know - but the Sunday Herald might well find itself in a bit of legal pickle for splashing it across their front pages this morning. Take a look at the Judicial Proceedings (Regulation of Reports) Act 1926, still in force. Enacted to curb the salacious reporting of divorce proceedings, this little piece of legislation lay beyond my ken until Ian Smart pulled it out on twitter, but essentially, it regulates the amount of information the press can lawfully report about divorces, under threat of criminal sanctions being imposed on offending editors, printers, publishers and proprietors.

1 Restriction on publication of reports of judicial proceedings.
(1) It shall not be lawful to print or publish, or cause or procure to be printed or published—   (b) in relation to any judicial proceedings for dissolution of marriage, for nullity of marriage, or for judicial separation, or for restitution of conjugal rights, any particulars other than the following, that is to say:—
(i) the names, addresses and occupations of the parties and witnesses;
(ii) a concise statement of the charges, defences and countercharges in support of which evidence has been given;
(iii) submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon;
(iv) the summing-up of the judge and the finding of the jury (if any) and the judgment of the court and observations made by the judge in giving judgment.

If a newspaper's coverage of divorce proceedings strays beyond these four points of information, and offers more extensive detail about what transpired during a court case about a divorce or suchlike, its editor or proprietor may find themselves liable to a four month prison sentence and anything up to a £5,000 fine. Moreover, public transcripts of these judicial proceedings - such as those Hutcheon presumably accessed to glean his information about the cited grounds of Walker's divorces - are excepted from criminal liability under the s1(4) of the 1926 Act. It may strike some of you as absurd, but according to the law, such material may sit in public archives or in reports of case-law quite legally, while the same information appearing on the pages of a newspaper or a blog would be a criminal publication. What's more, the 1926 Act contains none of the qualified privileges attaching to journalists who reasonably cover court proceedings, nor would the consent of the parties involved in the divorce waive criminal liability for detailed, impermissible reportage about a divorce case.

While the legislation clearly has contemporaneous reporting of divorce proceedings in mind, the Act has no time limit, no statute of limitation, and so engages the Sunday Herald's coverage today, insofar as the paper has reported on the judicial processes that generated Walker's past divorces. The article itself is a curious and muddled mix of references - details culled from the archive about the divorce proceedings, and arguably autonomous evidence from the two women about specific instances of abuse at Walker's hands, some of which also appear to have been cited in their petitions for divorce.

I've no brief for the prosecution, and do not intend to go through Hutcheon's article with a fine tooth comb.  However, once you're familiar with the Judicial Proceedings Act, one question clearly suggests itself. Dramatic though it would be, factoring in the 1926 Act, might the paper be susceptible to prosecution for publishing today's story? It's a possibility. I'm no expert on this piece of legislation. Indeed, it seems to have been exceedingly rarely used in practice and if any fellow jurisprudes wish to chime in or vigorously dissent from the following analysis, all comments would be gratefully received.

The 1926 Act was intended to prohibit the publication of detailed factual information about divorce proceedings, hence the admonition that any reporting of the substantive issues - to avoid criminal sanction - has to be concise and only with respect to charges or counter-charges about which evidence had been given, or refer to the judge's conclusions.  The Sunday Herald's "First Wife's Story" is gleaned entirely from these court records. While the article's reference to "cruelty" is clearly a concise account of the basis for the divorce, the specific details about the assault alleged arguably shade beyond that. The reporting of "The Second Wife's Story" seems more obviously problematic.  Rather than quoting exclusively from an interviewee spouse, asking about her experiences rather than the divorce proceedings, Hutcheon references Walker's legal documentation from that second divorce action itself, arguably straying well beyond a protected "concise" account of the charges and counter-charges about which evidence was given, referencing implements used to carry out assaults, motivations, imputations about the character of Walker's spouse, her disposition, and his own conduct.

While today's revelations will undoubtedly have stark consequences for Walker's political career, one wonders whether the Crown Office won't also be taking a close look at whether, in pursuit of their quarry, the Sunday Herald haven't tumbled over this old, rusty legal tripwire, laid down in the 1920s.