Sewel: no "constitutional safeguard", just a "self-denying ordinance..."

By any reckoning, Richard Keen QC is an uncommonly political lawyer. Former Dean of the Faculty of Advocates, and now the UK government's chief adviser on Scots law, Ruth Davidson appointed him chairman of the Scottish Tories in 2013. While in office, he reportedly summoned the party's MSPs to his "small castle", and subjected them all to a dressing down for being useless. Some disgruntled parliamentarian, ungrateful for this advice, leaked the encounter to the media. This interlude seemed to do his political career no harm. When David Cameron secured his majority in 2015, and the Liberal Democrats were ejected from government, Keen took up Jim Wallace's vacant office of Advocate General for Scotland.

In that position, Keen appeared before the UK Supreme Court this morning, to speak to the devolved aspects of the ongoing Brexit case. We substantially knew what the Advocate General proposed to argue from his written argument, but the Justices afforded him an hour to expand on his points. We may hear from him again, in reply, after the Lord Advocate has made his submissions on behalf of the Scottish Government on Wednesday. 

Keen's message to the Justices was characteristically trenchant and forthright -- but you have to wonder whether it was politically wise. Keen's argument is essentially a simple one. Parliament is sovereign. Nothing in the devolution settlements changes that. Indeed, the Scotland Act specifically recognises that Westminster retains competence over foreign affairs, including EU negotiations. It also retains power to legislate concerning devolved matters. Parliament is sovereign. It can make or unmake any law: the Scotland Act is no exception.  

Where this gets controversial, however, is when we turn to the so-called "Sewel convention". Since 1998, Westminster has recognised that it will not legislate for devolved matters without the consent of Holyrood. What do we mean by devolved matters? Generally, this has been understood as (a) passing legislation which falls within Holyrood's powers, or (b) changing the legislative competence of Holyrood by adding or subtracting from its authority, by devolving more powers, or re-reserving powers which were once reserved. 

But this convention gave Holyrood very limited legal protection. In states with codified and entrenched constitutions, the central government does not have the power to abolish regional parliaments, or to intrude on their competencies. The courts would block any attempt to do so. Some people wondered: why should Scotland be any different? Shouldn't the permanence and privileges of Holyrood also receive some legal protection?

In the wake of the 2014 independence referendum, the Smith Commission report agreed that"the Scottish Parliament will be made permanent in UK legislation" and that the Sewel convention should be "put on a statutory footing". Both of these commitments were reflected in sections one and two of the 2016 Scotland Act.  But did these "constitutional protections" really make much difference? In the political domain, David Mundell and his colleagues made much of these concessions. The statutory recognition of Sewel and Holyrood's permanence were important, they said, meaningful.

That claim lies in ruins this afternoon, after Richard Keen's Supreme Court submissions. So what did he say? Characterising this statutory recognition of the convention as "a self-denying ordinance", Keen continued, it was only "a political restriction upon Parliament's ability to act, no more and no less than that" and in no sense any "qualification or inhibition upon parliamentary sovereignty."

This is all very well and good, you might well think, before 2016. From 1999 - 2016, Sewel was just a political convention. You didn't find it in any law. But surely the Scotland Act must make some kind of difference? Surely there was some point in including Sewel in the 2016 Act? If there wasn't, if the idea Westminster will not "normally legislate for devolved matters without consent" is just empty words, just hot political air, then why the devil did MPs do it? 

The same thought struck Lord Sumption during the hearing. "But it cannot be described as a purely political force once it is enacted in a statute?" he asked. "Do you submit its incorporation as an Act of Parliament makes no difference to its legal effect?" he wondered.

Richard Keen's answer was consistent with the orthodox logic of his submission - but it remains politically stark. Yes, he said. The statutory recognition of Sewel is of no legal significance whatever. "The correct legal position", he concluded, is that Westminster "is sovereign, and may legislate at any time on any matter."As Graeme Cowie observed in the comments at the end of my last blog, "anyone paying even the most superficial of attention knew sections 1 and 2 of the Scotland Act 2016 were weasel words."

That may be true of constitutional scholars like Graeme. But for ordinary folk who followed the passage of the Scotland Act through Westminster and Holyrood, who listened to David Mundell's defence of its provisions -- Richard Keen's uncompromising submissions today may come as something of an unwelcome surprise.

"A quintessential matter of political judgment for Westminster..."

Last Friday, the Lord Advocate published the Scottish Government's intervention in the ongoing Brexit litigation before the UK Supreme Court. James Wolffe QC weighed in behind the Divisional Court's judgment, arguing that the royal prerogative cannot lawfully be used to trigger Article 50. But Scotland's senior law officer also ranged beyond that. He points to the Sewel convention, arguing that if Westminster legislates to withdraw the UK from the European Union, the Scottish Parliament must be consulted. 

The Lord Advocate isn't arguing that Holyrood has a veto -- but that the UK constitution now expects MPs to canvas the view of MSPs before legislating on devolved matters. Modern understandings of the Sewel convention generally recognise that it has two limbs. Firstly, that Westminster ought to seek the consent of Holyrood before changing Scots law on issues falling within the Scottish Parliament's purview, like health, or education, or family law.  And secondly, that any changes to the powers of the Scottish Parliament itself ought to take account of MSPs' views. The same goes for any changes to the power of Scottish Ministers, whether enhancing or curtailing their legal authority.

This afternoon, the UK government have published their counterblast against the Lord Advocate's submissions (and parallel arguments, made by the law officers of the Northern Irish and Welsh administrations). You could only expect Richard Keen and his colleagues to resist James Wolffe's arguments, but as Jonathan Mitchell QC tweets this afternoon, the UK government's legal answers have a "strangely tetchy" tone, "supercilious and ill-tempered". Seasoned barrister Sir Paul Jenkins couldn't "recall a case where the government thought it wise to descend to such rudeness", which he describes as "unnecessary and inappropriate." Jo Maugham QC characterises the submissions as "fantastically" so.

In a nutshell, they are that devolution is irrelevant to the issues before the Court, that foreign affairs is reserved, and that ""the devolution legislation cannot add to the arguments" in the case "in any material way." But perhaps most eye-catching, are the UK government's observations on the need to seek consent from any of the devolved legislatures. "The Court is being invited ... to stray into areas of political judgment rather than legal adjudication." They argue the Supreme Court "should resist that invitation."

So how do they reach this conclusion? While recognising that the statutes establishing Edinburgh, Belfast and Cardiff assemblies are "very significant pieces of legislation", they contend that the Sewel convention is not justiciable - which is to say, unsuitable for judicial decision-making. It is, they say, a "legal irrelevance", just a "political convention", and not part of UK constitutional law. In support of this view, they cite Lord Reed -- one of the justices who will hear this case, In 2012, in the Imperial Tobacco case, Lord Reed described the convention as a “political restriction on Parliament’s ability to amend the Scotland Act unilaterally" -- not a legal restriction.

And as far as this goes, this is a perfectly orthodox account of the status of constitutional conventions in the UK. They have generally been regarded as "rules of constitutional morality", rather than rules of constitutional law, susceptible to enforcement by the court. But where the UK government's case hits a potential wrinkle is that Westminster chose in 2016 to inscribe this convention on the face of the Scotland Act. They simultaneously "recognised" the "permanence" of the Scottish Parliament. 

While Lord Reed was absolutely right in 2012, that the Sewel convention was only a political restriction Westminster had undertaken to abide by, this isn't straightforwardly the case in 2016. The UK government's submission - strikingly - has nothing whatever to say about this change, and the impact it might have on their arguments about the justiciability and enforceability of the convention. Back in 2014, Professor Mark Elliott tacked up this informative article about the different potential legal effects of these innovations. In its legal papers, the UK government body-swerves these implications altogether.

So does the statutory recognition of Sewel change anything? Maybe. Maybe not. As a number of us pointed out at the time, David Mundell formulated this statutory recognition in a consciously sleekit way. The new Scotland Act recognised only that "the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament." "Normally" isn't a word you encounter very often in statutes. "Must" and "may", certainly. But not "normally." 

UK lawyers, unsurprisingly, have hung up their wigs on these words. Referring to the Scotland Act, they suggest the convention "does not purport to prescribe an absolute rule." Its content is only that “Westminster would not normally legislate” And here is the kicker. They argue that:

"... whether circumstances are ‘normal’ is a quintessential matter of political judgment for the Westminster Parliament and not the courts. There are no judicial standards by which to measure such a question in the context of a political convention." 

You didn't hear this kind of reasoning - at least in public - when David Mundell was talking up the virtues of the new Act, invoking the idea of a "new parliament, new powers, and new partnerships."

For the UK government lawyers, we end with the orthodox Diceyan vision of the tyrannical patriarch, and the erratic father figure never needs to keep his word, or follow his own rules. Whatever forms of "legal recognition" or apparent constraints Westminster inscribes on its constitutional legislation, "the Westminster Parliament is sovereign and may legislate at any time on any matter ... any attempt to enforce the convention directly or indirectly would be a straightforward impingement on that sovereignty." 

Theresa May's legal counsellors may be resisting any attempt for parliament to take back control over Brexit, but they take Holyrood's subordination to Westminster for granted. For Richard Keen and his colleagues, power devolved is ultimately power retained, whatever political grace notes ministers write into the latest iteration of devolution, whatever our constitutional statutes anticipate and provide. And if the strident, haughty tone of this reply is anything to go by -- how very dare you argue otherwise. 

You can read the whole UK government submission here.

"Ane absolute power to Cass, Annull & Dissable -- Contrair to Law..."

Last night, the Lord Advocate James Wolffe QC published the Scottish Government's written intervention in the Article 50 litigation. The case is scheduled to be heard by all eleven of the UK Supreme Court's Justices between the 5th and 8th of December.  

It is, as you'd expect, a weighty legal document which you may not find instantly digestible. A quick scan throws up a range of old constitutional familiars: the Claim of Right Act 1689, the Act of Union, the Sewel convention -- and even our old friend MacCormick v Lord Advocate. But what does all this mean? When you boil it all down, what is the Scottish Government really arguing for in the Brexit hearing? 

In a nutshell, James Wolffe is pursuing two distinct lines of argument. The first focuses on whether ministers can use the royal prerogative to activate Article 50 and the United Kingdom's departure from the European Union. The second concerns the so-called "Sewel" convention. Is Holyrood's consent constitutionally necessary, if Article 50 is to be activated? 

Let's start with the first line of argument. The royal prerogative is the name given to the residual legal powers of the crown. Its exercise entitles Her Majesty's government to enter treaties with foreign powers, or even to declare war, without reference to parliament. Earlier this year, the three judges of the Divisional Court held that Theresa May's government could not use the foreign affairs prerogative to activate Article 50. The Lord Chief held that Westminster must pass legislation, to begin disentangling Britain from the EU, and stripping away the rights in domestic law connected to it. The Scottish Government have weighed in behind this argument, but appeal to different sources.

The Lord Advocate invokes the preamble to the Claim of Right Act, passed by the old Scottish Parliament in 1689 in the aftermath of the eviction of King James VII and II from the country and the throne. Parliamentarians slammed James for having corrupted his rule "from a legall limited monarchy to ane Arbitrary Despotick power and in a publick proclamation asserted ane absolute power to cass annull and dissable all the lawes." Their 1689 Act states any attempt to use crown authority to "cass, annull and dissable" laws was itself "Contrair to Law." 

Here, the 1706 and 1707 Acts of Union warrant a passing mention. As James Wolffe points out, Article XVIII of the Acts provides that  "all other laws in use, within the Kingdom of Scotland, do after the union and notwithstandng thereof, remain in the same Force as before ... but alterable by the Parliament of Great-Britain." Notice the critical point here. "At the foundation of the United Kingdom, it was Parliament ... and not the Crown, which was given power to change the law of Scotland."  Read together, he suggests, these sources confirm the Divisional Court's judgment that it is for parliament -- not the crown in exercise of its royal prerogatives -- to alter the law of the land. 

Here the Scottish Government's argument shifts forwards, towards more contemporary sources. Wolffe argues that if Theresa May was entitled to use the prerogative to activate Article 50, its effect would hollow out a range of laws currently applicable in Scotland, including the Scotland Act, which "assumes the UK, including Scotland, is a member of the EU." The devolution legislation requires Holyrood to respect the rules and regulations of EU law. So too must Scottish ministers. "The effect of withdrawal from the EU", he contends, would be to "cass, annul or disable" these provisions - a step which the Lord Advocate concludes "may not, compatibly with the Claim of Right Act 1689, be effected by an act of the prerogative alone."

If the Supreme Court accepted this line of argument, it would be for the Westminster parliament to legislate for Article 50. But where stands Holyrood then? Here, the Lord Advocate's case shifts onto different terrain, and its second main theme. Is Holyrood's consent required or not to legislate for Article 50? As AV Dicey famously maintained, Westminster is sovereign under the British constitution. Between 1707 and 1998, MPs legislated for Scotland. Devolution didn't deprive the UK parliament of this power. This is recognised in the Scotland Act 1998 itself. Section 28(7) stresses that devolution "does not affect the power of the Parliament of the United Kingdom to make laws for Scotland."  

But since 1998, the interaction between the two parliaments has been governed by a constitutional convention, sometimes called the Sewel convention. The Scotland Act 2016 recognised the long-standing rule of constitutional morality that Westminster "will not normally legislate with regard to devolved matters without consent." This convention is generally regarded as having two limbs. Firstly, if the UK parliament wants to pass legislation in areas lying within Holyrood's powers - on health say, education, or family law - MPs should seek consent from MSPs. But beyond that, if Westminster legislation would expand or contract the powers of Scottish Parliament or its ministers, this too requires consent.  A good example of this was the additional powers devolved by the Scotland Act 2016 itself.

In his brief, the Lord Advocate argues that "withdrawal of the UK form the EU would alter the competence of the Scottish Parliament and Government, and the law applicable in Scotland within devolved competence. A Bill to authorise withdrawal would accordingly engage the legislative consent convention." Holyrood's consent, he says, must be sought. 

For the sake of argument, let's say that the UK Supreme Court agree with him. Then what? Does the convention have any legal teeth? Consider, for example, the eminently plausible scenario, that the majority in Holyrood refuses to give its consent to any Article 50 Bill, unless the UK government commits to pursuing the gentlest Brexit possible. Say also that Theresa May is unwilling to bow to this pressure, and presses on with an Article 50 Bill and the hardest of hard Brexits. Is the Lord Advocate seriously suggesting Holyrood has the legal power to frustrate Westminster? In law, does the Scottish Parliament hold a Brexit veto? The answer may disappoint you, and irate headline writers everywhere. 

If you read the Scottish Government's submissions carefully, they actually conclude Holyrood has no legal power to "block" an Article 50 Bill passed by Westminster.  If the UK parliament were to choose to pass an Act of Parliament without Holyrood's consent, the Lord Advocate concedes, "the courts could not decline to recognise the validity of the resulting Act." He accepts that Holyrood has no legal trump over Brexit. Politically, of course, overriding Holyrood and ignoring its objections would embroil the two governments and parliaments in a potentially poisonous constitutional crisis. 

And it is this opportunity to put Theresa May under political pressure which the Lord Advocate seems to be angling for in this intervention. What he is looking for is a direction from the Supreme Court that constitutionally, Holyrood should be consulted about any Article 50 Bill, whether or not Westminster respects Holyrood's conclusions. This, he suggests, "would not involve an impermissible interference with proceedings in Parliament" and would represent the Court fulfilling "its proper function of identifying the constitutional requirements."

It remains to be seen whether either of these lines of argument prosper. You can read the whole submission for yourself here.

Mr Trump goes to Strasbourg?

Yesterday, the UK Supreme Court put an end to Donald Trump's long-running legal action against the Scottish ministers. The case concerned the lawfulness of a planning consent, which ministers had granted to an offshore windpower project, overlooked by Trump's golfing paradise in Menie. 

As has become customary in cases of this kind, the wheels of justice ground fairly slowly. Lord Doherty dismissed Trump's petition at first instance in February 2014. The Lord President in the Inner House of the Court of Session backed him up in June 2015. Yesterday's ruling from Lord Hodge and his colleagues represents the end of the line for the bumptious business man. At least in turns of the domestic courts. His golfers will just have to get used to watching the shearing white turbines rotate.

But the BBC brings tidings this morning that the Donald "plans to take his legal challenge to an offshore wind farm to the European courts." I read this with some interest.  The BBC relate this declaration of intent pretty uncritically, but if (a) you've been following the case at all or (b) know anything about the european courts which Trump might bring his complaints to -- you very quickly realise the whole thing is complete bunk.

Why? Firstly, we have to look at what the legal objection to the planning consent was all about. Despite the big splash the Supreme Court decision made, almost nobody reported what the justices actually had to decide. What was Trump's big legal problem? If you dig into the decision, you see the dispute was pretty narrow, and pretty technical. The whole case turned on nice questions of statutory interpretation, the meaning of the UK Electricity Act of 1989, and the power of Scottish ministers to license electricty generation. 

At first instance, Trump's lawyers tried their hands at a common law argument, arguing that Scottish ministers were biased in their decision-making on the windfarm project. This argument fell away higher up the judicial Christmas tree. Notice what is missing here. All the way through his long case, Trump's advocates had nothing to say about the law of the European Union or the common market. Trump initially argued that the fundamental rights he enjoys under the European Convention had been rudely and unjustifiably infringed by the Scottish Government. But after Lord Doherty rejected his case categorically in the first hearing, he had no human rights arguments at all, in fact. No further references to unlawful interferences with his property rights. No case grounded in considerations of procedural unfairness, violating Article 6, and the protections it extends to individuals, whose civil rights are being adjudicated. Nowt. 

If Mr Trump had powerful arguments, rooted in EU law or Convention rights, why not air refine them on appeal? Under the Scotland Act, Scottish ministers must abide by EU law and ECHR rights. If they fail to discharge their duties, scorning civil liberties or subverting the common market, they can expect a judicial duffing up. If Mr Trump could find any persuasive, effective arguments, you can bet your last shilling that he would have made them. But he didn't. 

If you hope to toddle off to visit the European Court of Human Rights in Strasbourg, or to pay a visit the European Court of Justice in Luxembourg, you'd expect all of Trump's talented lawyers to be able to come up with some scrap of EU law or ECHR decision to support their case before now. Something. Anything. And after an initial, half-hearted effort to shoe-horn in ECHR rights, they haven't got a sausage. And what's worse for Mr Trump: the European Convention requires its applicants to exhaust effective domestic remedies. If your problem can be fixed by the legal authorities in Latvia, or Spain, or Sweden, or Scotland, Strasbourg isn't interested. Application junked. It is impossible to see how any Trumpish petition to the European Court of Human Rights could survive this test.

The idea that he is off the the Court of Justice of the European Union is even more comical. The ECJ is accessible to individuals only in very narrowly circumscribed circumstances. Even if Trump had an arguable EU law point, which he doesn't, he has no basis whatever to bring Scottish Ministers before EU judges now. It is just pseudo-legal windbaggery.

It is almost as if Trump's new threats and legal menaces are just another eruption from a posturing gasbag, struggling to reconcile himself to a reality in which nobody gives a fig for his preferences. Heaven forfend. We're kidding ourselves on if we take any of this seriously. He had his legal shot. Judges listenened politely to his arguments. He blew it. Case closed. 

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.

Vexatious Litigants

In the name of the Wee Man, surely not another challenge to the legality of the independence referendum? In this morning's Sunday Times, the paper reports that the Scottish Parliament's decision to limit the referendum franchise to those residing in Scotland is illegal under European Union law, and faces "good prospects" of being waylaid in our courts and declared unlawful.  

The story has since been picked up by the Daily Mail and others who characteristically carelessly misrepresent the case as a question of human rights - rather than EU - law.  James Wallace - the tiresome and self-promoting face of expatriate grief about being excluded from the referendum franchise - strikes again.  For those who breathed a sigh of relief after the Edinburgh Agreement was signed, hoping we were beyond such vexatious legal contrivances, this headline and the threat is unlikely to be welcome. 

The legal brain behind these reports is Aidan O'Neill QC.  O'Neill is a talented and creative public lawyer - but his recent track record in the UK courts also casts him as the patron saint of lost causes.  For those who have followed his recent cases, one can only be impressed by O'Neill capacity to scrape together a defensible argument from the scrappiest of material.  He has made extensive - and entirely unsuccessful - use of EU law arguments in his recent outings in our courts, seeking to challenge the bans on prisoner votes at the UK and Scottish level.  Even if Wallace and his aggrieved comrades scraped together the booty necessary to pursue their grievances in court, this is kite flying of the first order and if the UK Supreme Court was even willing to entertain the argument, I'd fully expect them to blast it out of the sky, as it has blasted each and every one of O'Neill's other playful attempts to extend the province of EU law to controversial questions of constitutional and public law. 

In the 2013 UK Supreme Court case of Chester and McGeogh, O'Neill attempted to persuade the seven justices that his (imprisoned) client's right to vote in European and Scottish parliamentary elections was protected not just by the European Convention on Human Rights, but also European Union law. His efforts to do so, while plucky and imaginative, were resoundingly unsuccessful. O'Neill's EU law submissions were unanimously rejected by the court.  

Not to be dissuaded, O'Neill re-deployed his expertise before Lord Glennie in the Outer House of the Court of Session in Moohan last December, contending that EU law prevented Holyrood from excluding another three prisoners from the referendum franchise. O'Neill argued that the referendum might deprive his three clients of their EU citizenship rights, and as a consequence, EU law was engaged and required their inclusion in September's plebiscite.  But like the Supreme Court, Lord Glennie wasn't willing to play. It remains to be seen if his argument will prosper better in the Inner House on appeal, but I rather doubt it.

Today's Sunday Times report seems to rely on the same logic O'Neill appealed to in Moohan. If three prisoners had a right to challenge the legality of the referendum on the grounds that they might lose their EU citizenship rights if there is a Yes vote, the same case could be made about the many more Scottish-born folk, who no longer live in Scottish constituencies, who won't be able to vote on the 18th of September. So what did the court make of O'Neill's submissions under this heading the last time they were tested? 

Short version: it didn't fly. EU law submissions having been vigorously spiked by Lord Mance and his colleagues in the UK Supreme Court, O'Neill was forced into something of a rearguard action, premised on the (controversial) question of Scotland's EU status after a Yes vote in the referendum. Lord Glennie concluded that:

"Even if I had found that EU law was engaged, on the basis that the independence referendum was a referendum directly affecting the question of EU membership and EU citizenship, I would not as a result necessarily have concluded that the franchise arrangements put in place by the Scottish Parliament in the Franchise Act contravened EU law."

Observing:

"... in legal terms there is no simple answer, either in law or in fact. They correctly describe the legal situation as sui generis, pointing out that the various EU Treaties do not specifically cover the point. But the difficulty goes further than that. As is apparent from the terms of their Opinion, and as is perhaps obvious to anyone with even a passing acquaintance with the arguments for and against, the decision on continued membership will not ultimately be decided solely as a legal question but will, to a greater or lesser extent, involve questions of hard politics.

The court is not in a position to know fully what political considerations will be brought to bear on the issue, and with what leverage. Accordingly, to ask the court to decide the question whether upon achieving independence Scotland would cease for a time to be a member of the EU, with consequences for its nationals in terms of their citizenship of the EU, would be to ask the court to predict the outcome of robust and complex negotiations. That is a question largely of fact. It is not a task which the court is equipped." 

If I was looking for a skilled advocate to help make an improbable public law case, I'd cheerfully instruct Mr O'Neill, confident he could cobble together something imaginative and take to his pins and make the case to the court with customary vigour and vim. You look to an advocate to put your case, however hopeless.  But politically, this is a dubious, late wrecking enterprise with which I have no sympathy whatever. Questions of the franchise are essentially political, yet we heard sod all from Wallace and his soured comrades when Holyrood came to consider the referendum franchise last year, arguing the case for a broader electoral role, accommodating interested voters south of the border, or elsewhere in these islands. They declined to make that case or campaign for it, winning allies and advancing their argument politically.

Having neglected that opportunity to contribute to our political processes, they now propose to go to law to right a perceived injustice they more or less mutely acceded to using a wildly speculative construction of European Union law. The appropriate place for these debates is the open air of the parliamentary chamber, not the narrow halls of our court houses.  The constitutional debate is fraught enough without the belated sallies of vexatious litigants.

"... we are against the UK Supreme Court..."

Remember Cadder? Not, perhaps, the First Minister and Justice Secretary's finest hour.  In 2011, in response to the UK Supreme Court's judgment about the right of suspects to legal advice, the two SNP politicians turned their rhetorical dials all the way up to eleven.  Salmond argued that:

"I don't think it's sensible, fair or reasonable in any jurisdiction where we've a situation where one judge is overruling the opinion of many judges in another court.  It boils down to the potential replacement of Scottish law by Lord Hope's law. I don't think that's a satisfactory situation."

Farcically, the Scottish Government went on to oppose the idea of installing a Scottish majority on the Court.  Since, they've been avoiding the topic of the Supreme Court's jurisdiction for grim death, entangling the issue in technical, unpolitical language, having secured amendments to the Scotland Act of 2012, constricting the rights of folk in criminal proceedings, to take their human rights cases to London when they've been disappointed in Edinburgh.  

In the meanwhile, civil justice is being shaken up across the country and the question of civil appeals from Edinburgh to London is now back on the political agenda.  In May 2012, I set out the - I think persuasive - legal case that the Scottish Parliament can now unilaterally cut common-or-garden civil appeals from the Court of Session to the UK Supreme Court, if the SNP government had a will to do so. While Holyrood doesn't have the legal power to end appeals to London on the basis of EU law, the European Convention on Human Rights, or devolution more generally, the parliament could bring the treatment of Scottish civil cases into line with Scottish criminal proceedings. 

Save for this sort of "constitutional" litigation turning on fundamental rights or European law, Scottish civil and criminal cases could end in the Court of Session and High Court respectively, if the SNP majority exercised itself.  There are plenty of understandable reasons to justify doing so, not least that a decision of the UK Court on appeal invariably involves the review of a judgment of three judges of the Court of Session by the Supreme Court's two Scottish Justices, who corral the English majority on the bench into mutely endorsing their preferred decision.  

What's more, although both Scottish civil and criminal law are distinct from the English system, the gaps in the UK Court bench's judicial knowledge of civil law are likely to be at least as significant as their ignorance of Scots criminal law.  Property law furnishes the paradigm example, the English system an eccentric mixter-maxter of principles of Common Law and Equity, the Scots a more systematic body of norms, organised along Roman lines. An English judge - or three English law judges - are not likely to be in their element, adjudicating tricky cases taken under great parts of Scots private law.  Better, one might argue, to leave it to specialists.

Curiously, despite the Scottish Ministers' past forays into superheated indictments of the Court's legitimacy, and anxieties about its English-educated majority, last week the SNP government launched a consultation on its proposals not only to retain the UK Court's civil jurisdiction, but to allow the tribunal (and alternatively, the Court of Session) to pick and choose which cases it examines on appeal. 

At the moment, Scottish litigants access the UK Court on more favourable terms than English, Welsh and Nothern Irish litigants, and do not have to demonstrate that their case raises an "arguable point of law of general public importance which ought to be considered by the Supreme Court at that time". Ironically, the SNP are, once again, proposing to bring us into line with English practice in this respect, Ministers' criticism of the jurisdiction of the Court, forgotten. 

In 2010, SNP MSP Stewart Maxwell told the Scottish Parliament that:

"... we are against the UK Supreme Court. We were against it when it was created: we have been against it from the beginning and we are against it now. It is Labour’s folly."

From the same debate, another SNP MSP, Dave Thompson, said:

"The UK Supreme Court was established in October 2009 to deal with civil matters, despite opposition from the SNP. We warned that it was irrational for a court without a majority of Scottish judges to decide on cases involving Scots law. We also pointed out that the practice of hearing Scots civil cases in the House of Lords was a historical anomaly and that that role should be repatriated to Scotland. What other legal jurisdiction allows its appeals to be heard in another jurisdiction?  Unfortunately, the previous Labour-led Administration failed utterly to stand up to Westminster and protect the independence of Scots law."

I wonder if we can expect Maxwell and Thompson to turn the same great guns on their party colleagues, who now seem so keen to retain and entrench the "anomaly" of London's civil jurisdiction, which they once so bitterly opposed.

Scotland's green salad justices & ancient juniors...

Few folk embark on a judicial career in this country out of a raving thirst for publicity, but this is just silly. This week, the UK Supreme Court has turned out its old guard, appointing three new Justices.  In America, the installation of a single judge is now invariably met with a press ruckus, pompous senators sounding off ad nauseum in televised hearings, while the nominee practices judicious evasion and studied non-answers to the politicians' usually none-too-forensic political cross-examination on the hot-button jurisprudential controversies of the day.  

On this side of the Atlantic, the idea of subjecting your Lord President Would-Bes, judges and Justices to such treatment hasn't gained much purchase. Everything is rather stuffier, enveloped in cosy, impenetrable officialdom. As a consequence, I'm sure a vanishingly small percentage of the UK population could distinguish any of the Justices from Adam (or in one instance, from Eve).

Adam Wagner styled the three appointments an "attack of the clones". All three new justices are men of a certain age. Baroness Hale remains the Court's first and only female justice to serve.  The story stirred barely a whisper in the Scottish press, despite the heightened visibility the Court has enjoyed in Scottish politics in the last year or two, adjudicating politically controversial constitutional cases. 

By convention, two seats on the Court are filled by Scots lawyers. Court of Session judge, Lord Hodge (above, right), will fill the seat vacated by Lord Hope, who has achieved sufficient antiquity that he's obliged to retire, aged 75.  All that despite, employment as a judge in this country's apex court seems an excellent way to preserve one's anonymity.

The gendered angle on the story was the subject of commentary elsewhere.  As I argued back in January of last year, of the Lord Presidency snaffled by Lord Gill, it's important to think about our overwhelmingly male-dominated higher courts with our historical periwigs on, and examine how this narrow pool of candidates came to be. 

To my eye, one of the most worrying features of contemporary recruitment to the Scottish bar, which seems likely to dominate high judicial offices in this country for the foreseeable future, is the continuing dominance of men among their intrants and devils. As I noted in the piece, of the 12 advocates called to the Bar in 2011, three were women. Of the 10 in 2010, only four. 

To bring it right up to date, of the 13 called in 2012, three are women. It is also worth emphasising, the age profile of the new-sprung advocate seems to have evolved since the 1970s and 80s. No longer the preserve of bright young men, (MA Oxon, LLB Edinburgh), a quick glance through the newer Faculty roll reveals many grizzled faces with at least a decade or more of work as a solicitor behind them.  You might find the odd cherubic phizog, but many of these juniors aren't so junior, and probably won't be in post long enough to make it to the Supreme Courts.

A comparison with the two Scots lawyers who'll now sit on the UK Supreme Court is an instructive one. On admission to the Faculty, the second Scottish judge on the Court, Lord Reed, was about 27 years old, Hodge was 30.  In judicial terms, both of the Scottish justices are now in the green salad days of their youth, Lord Reed 56, and Hodge 59 years of age.  That's a half-decade younger than their most youthful English or Northern Irish colleague. 

Barring ill-health or disaster, both men potentially have more than a decade and a half of judgin' in London before them. If Reed and Hodge prove as zesty as Lord Hope, the  no vacancies sign will hang outside Middlesex Guildhall for a substantial period of time and they can expect to be colleagues on the Court until the late 2020s. Unless, of course, we win the referendum in 2014, in which case the brace of Justices will have to seek gainful employment elsewhere...

My top 10 of 2012...

2012 has been a queer, busy old year. Council Elections in May.  Months of legal and political wrangling on the independence referendum, finally resolved in October, with the publication of a draft section 30 order to put the legality of the referendum beyond down, and to kill devo-something stone dead.  In parallel, an often bilious and occasionally bitter argument about introducing same-sex marriage.  The launches of both YesScotland and BetterTogether, neither event exactly capturing the imagination. 

Outwith formal politics, thousands gathered to march in support of independence under a cyan Edinburgh sky, while in Glasgow in November, just shy of a thousand leftie activists assembled for a Radical Independence Conference (a sketch of which, written by yours truly, should be appearing in the next edition of the Drouth magazine).

In a first for me, I was also denounced by a Labour MP as a Nationalist stooge, in cahoots with Isabel Fraser in an anti-Labour conspiracy on BBC "Newsnat".  In the second part of the year, Michael Greenwell and I embarked on our For A' That series of podcasts, which we hope will mature into a constructive space for conversation and arguments about the issues, in the lead up to 2014.  In a gesture towards things to come, we're conscious that a pro-nationalist echo-chamber does not an interesting podcast make, and the inclusion of folk hostile to independence (Ian Smart) and folk who remain undecided but persuadable (Alex Massie) will be the stamp of things to come. All suggestions for guests you'd like to hear more from, and neglected or interesting issues worth discussing, gratefully received. We'll do our best to bend arms and tempt folk into our liberally-stocked green room.

In anticipation of tonight's revels to usher in 2013, I thought I'd take a wee look back, over the most popular top ten posts of 2012.

1.  I don't know if Anderstonians, Partickians, and Hillheadists are particularly interested in their local politics, but coming in in first place, is this post from May on the Glasgow Council Election results in Anderston Hillhead and Partick.  The post fell in one of a series, covering all of the wards in Glasgow, condensing the results into graphs in an effort to make the STV election we use comprehensible, and afford a better insight than is usually available into the closeness of the races. 

2.  In second place, February thoughts on On Labour's Cybernat Problem, tracing the genealogy of this now-familiar, frumious persona, and the psychological compensations for those, desperate to find the "dark heart" of Scottish nationalism.

3. Thirdly, from July, we had Labour for Independence? How can it be that a party of soi-dissant non-nationalists, non-unionists, instrumental socialists(ish), all agree that the status quo is the only practicable mechanism to realise their political convictions. Isn't that just a little queer?

4.  Ecclefechan Mackay will be delighted.  In at number four, in the balmy Olympic days of June,a cross-post from the Kinlochberviee Chronicle, reporting on the forces drafted in by Theresa May to supplement G4S's bungling security provision. A serious bit of analysis, in Crack Womble Squad Drafted in to protect Olympics.

5.  We're back to Labour at number five, with a close reading of an important speech in June, articulating a defence of the Union in England.  Arguably the most interesting quality of Miliband's pro-union analysis was its shift in gear from the usual Labour fare.  We're used to hearing about solidarity between "hard-working families" on both sides of the border, and the rhetoric of shared resistance against perfidious Conservatism.  Historian Colin Kidd has described this as an argument from "instrumental Unionism" - the mirror image of Nicola Sturgeon's recent invocation of a "utilitarian nationalism", driven not so much by considerations of national identity or culture, but a desire for power to be reclaimed by Scottish institutions to shape a particular kind of politics and society.  Interestingly, Miliband's speech took an entirely different tack, and focussed instead on affective British identity, or in Nicola's terms, "existential nationalist" reasons to maintain the union. His message: feel British? Vote no. A clear case, for me, of Ed Miliband: British nationalist.

6) At number six, an untimely little story. 2011 was the year for controversy about the UK Supreme Court, but 2012 arguably presented opportunities which the SNP in Holyrood neglected. In May, I asked, Can Holyrood repudiate the UK Supreme Court's civil jurisdiction? The interesting - and for some, probably surprising - answer is that there is a strong argument that they could, and it lies within the SNP's power unilaterally to cut the centuries old appeal to the House of Lords as was, now the UK Court. One has to wonder, why the inactivity? Why not exert your majority? Concern not to revive the damaging ugliness of 2011's overheated critique? Caution? 

7.  A second entry for the Kinlochbervie Chronicle at number seven.   Ecclefechan Mackay (MA) applies himself to the findings of Professor Mitchell and Lynn Bennie's recent study into the profile of the SNP membership: Study reveals average SNP member is "stunted Jacobite bogle". 

8.  Swithering at number eight. Others regard this year's referendum negotiations as an exercise in arid formalism and shadowboxing, but for me, the critical decision of 2012 was the elimination of any devo-something question from the referendum ballot.  It was always going to be difficult to frame the question, but even for this nationalist-with-regrets, the prospect of asking a devolutionary question was not unattractive.  "Better Together" is not a political maxim I live by, but I suspect many who now support an independent Scotland will vote yes in 2014, mourning Britain's unrealised better history. "A nationalist liferaft, but who is it for?"

9.  2012 was the first full year in which the Offensive Behaviour at Football etc (Scotland) Act 2011 was in force. September threw up this interesting case from the sheriff court, where the new legislation seemed to frustrate a prosecution for disorderly, allegedly sectarian conduct aboard a train, while an old-fashioned breach of the peace charge might well have done the trick. The first peep from a deflating political football?

10. And lastly, in tenth place, the Edinburgh Agreement, which eased years of palpitations on my part about the independence referendum being waylaid in la, and ending up before the UK Supreme Court.  I was particularly struck by how far David Cameron was drawn into the semiotics of the occasion, with all the ritual, bells and whistles, rather than ratifying a memo of ministerial agreement by a more informal exchange of emails, or letters. A little thing, perhaps, but it gave us a compelling, concrete image of what an independent Scottish diplomacy might look like. Cameron: a willing actor in Salmond's drama.

And that, as they say, is that for 2012. Enjoy a dram or two tonight, and a fortifying slab of black bun. Happy New Year!

The mysterious matter of Kinloch v. HM Advocate...

Ick. Lurgi. Plague. The Red Death. Whatever it was, for the second half of last week, I've been knocked horizontal by a foul ailment. Happily, consulting a peg-toothed crone, knotting a poultice about my neck, and skewering an amphibian to my lapel seems to have done the trick, and ousted the malady.  Before this ague claimed me last week, I composed this wee survey piece about the UK Supreme Court's Michaelmas term of sittings planned, and the Scottish cases and issues which Lords Reed, Hope, and the rest of the Justices will be weighing up before Christmas.

About five of the six cases to be heard, I was able to dredge up decent information, and the pertinent judgments of the Court of Session which litigants are seeking to challenge.  Only one case remained mysterious: Kinloch v. HM Advocate, the only criminal case on the Court's docket this term.  Of this action, I could find not a whisper, not a breath of judicial prose on any of the usual sources of information.

Hoping to make a bit of progress via more informal networks, I asked a couple of advocates specialising in criminal work if they had an inking about the case, and what the controversy might concern. The sterling Niall McCluskey went beyond the call of duty to dig out this information on the mysterious Kinloch.  

@peatworrier Kinloch v HMA . Appeal refused at 2nd sift, howeverappellant subsequently sought leave to appeal to the Supreme Court.
— Niall McCluskey (@NiallMccluskey) October 1, 2012

@peatworrier @bmcconnachieqc Leave granted on 2 Nov 2011. As there was no substantive appeal hearing there is no opinion of the court.
— Niall McCluskey (@NiallMccluskey) October 1, 2012

Curiouser and curiouser.  Despite his best endeavours, and these spare procedural discoveries, Niall couldn't find out what the case was about either.  By the by, that reference to the "second sift" concerns the process criminal appeals go through.  In the "first sift", appeal applications are considered by a High Court judge, who makes an assessment about whether there are arguable grounds of appeal.  If he or she decides there are no arguable grounds, and knocks back the application, the convicted person can apply to have this assessment reviewed. The papers are then nosed through by two judges (in appeals against sentence imposed) or three judges (appeals against conviction), again with a mind to assessing whether the paper submissions make an "arguable case". This is what's known as the "second sift".  Whatever Kinloch's lawyers' arguments, and whatever the bench's reasons for rejecting them, since the case was never orally argued, nor subject to a written judgment, it's impossible to say what the case concerned with any confidence.  

That it has ended up before the Supreme Court, however, strongly suggests that we can reasonably expect the appellant to be contending something in the human rights line, though that might concern the fairness of the criminal trial, or a broader case, based, for instance, on protected rights to privacy and a family life.  That said, unlike Cadder, and unlike Imperial Tobacco, the hearing before the Justices is due to last only one day, so we might expect submissions to be less exhausting in scope.  Until the Supreme Court chalks up its traditional wee summary on the web, it remains to be seen what Kinloch concerns, and whether or not it may put the poker in the greying embers of recent controversies about the UK Supreme Court's interventions in Scottish criminal cases.

UPDATE

Well that was quick.  It transpires that Brian McConnachie QC is in on the case of Kinloch v. HM Advocate himself.  He told me that:

@peatworrier @niallmccluskey It is about police surveillance and when it contravenes Article 8. Idea to review Gilchrist on that point.
— Brian McConnachie (@BMcconnachieQC) October 1, 2012

Gilchrist is a reference to the 2004 case of Gilchrist and another v. H.M. Advocate, which concerns a police tip-off, the controlled supply of drugs, covert surveillance, and the argument that for prosecutors to rely on evidence gathered in breach of article 8 rights (privacy) would render them ultra vires under the Scotland Act.  The judgment is short, and I must fly. Do give it a nosey for yourselves.