In defence of degendering civil partnership...

Although no devotee of the concept of marriage in my own life, my political views on the topic are plain and trenchant.  Same-sex marriage should be introduced in Scotland. My own preference is to eliminate the gendered aspects of marriage and civil partnerships both, permitting an array of relationships and folk to have their circumstances recognised by the state, without anxious fussing over gender.  If the nation's clerics and celebrants are content to conduct either of these ceremonials in their respective temples, let it be so. If not, not. That said, I'm not insensible to an argument recently advanced by the Heresiarch, about what he calls the "apotheosis of coupledom", and the implicit exclusions of the approach advocated here ...

"As I wrote recently elsewhere, the gay civil partnership doesn't just (or even mainly) represent the extension of rights traditionally enjoyed only by heterosexuals. It also represents the apotheosis of coupledom, the clearest possible demonstration of official faith in the moral superiority of the two-person relationship. The moralisation of the couple - a unit both erotic and companionate - might (if you want to go back that far) be traced to Plato's Symposium, but the more immediate source is the Protestant Reformation, which held it out as an alternative ideal to the Catholic cult of virginity. Marriage, in the Catholic view, was mainly intended for procreation, hence the ban on contraception and the preference for large families."

In a piece much to be recommended, SNP MSP John Mason has written this delightfully self-aware and self-reflective analysis, unpacking his position on same-sex marriage in a way he has not hitherto attempted during his often perplexing appearances on television, discussing the topic. You will recall that Mason was pretty sharply indicted, not least by fellow SNP parliamentarians, for a motion lodged in Holyrood earlier this year, rejoining later that he was "relaxed" about the idea of same-sex marriage, thereby confusing several folk about his position. The joy of John's piece is not in agreeing with its theology, nor accepting its analysis of the vices of homosexual conduct, but its welcome temperateness and earnest attempt to address the idea of "religion in the public square" and in the parliament. We could do with rather more of this spirit in our public life.

Here, however, I wanted primarily to focus on why the gendered aspect of marriage and civil partnerships are not simply abstract, nor academic, but something seriously to be thought about, if you regard same-sex marriage as an admissible and desirable concept for Scotland to adopt. Take the example of a couple, happily married for several years. Say one of the parties finally decides to avail themselves of the Gender Recognition Act 2004, which allows persons to change their gender in law. Applicants have to demonstrate that they (a) have or have had gender dysphoria, (b) have lived in the acquired gender throughout the period of two years ending with the date on which the application is made, (c) intended to continue to live in the acquired gender until death, and can produce certain evidence to that effect. Under this piece of legislation, where a gender recognition certificate is granted, "the person’s gender becomes for all purposes the acquired gender." A splendid thing, you might think. But there's a catch, and a big one, for this cheerful, committed couple. Their commitment to one another is as nought. Under the law as it stands, you are only eligible to be in a civil partnership with an individual of the same sex, and married to an individual of the opposite sex. It is crucial to keep this detail in mind.

So what happens to a marriage or a civil partnership when one of the individuals in it seeks legally to change their gender? The answer is that married or civilly partnered trans people will only be issued with an interim gender  certificate - until their partnership or marriage has been dissolved. Full recognition is contingent on the end of these existing connubial ties (at least legally). You may be surprised to discover that there is no mechanism at present simply to transform a marriage into a civil partnership in these circumstances. Instead, full gender recognition is precisely contingent on pulling apart the couple's legal ties, whatever the nature of their relationship, or their desire to continue living within it. The same unhappy requirement attaches to those in civil partnerships. If the couple cease to be of the same gender in law by seeking one of these certificates, their partnership must end for full recognition to be bestowed. This seems a highly suspect, wildly presumptuous and frankly inhumane requirement to impose; increasingly so if Scotland moves towards a more encompassing concept of marriage and a more differentiated and subtle idea of the happy range of human relationships.

This trans-dimension also has clear implications for the basis of civil partnerships, meaning that we can't and shouldn't be thinking about same-sex marriage in isolation.  At this stage in Nicola Sturgeon's consultation, it is unclear how the Scottish government envisages approaching issues of gender recognition, if same-sex marriage is adopted into law.  The vital question, it seems to me, is whether the government intend to approach marriage as two distinct institutions - having exclusively same-sex marriages and opposite-sex marriages - or whether we propose to adopt a single concept of marriage, in which the gender of participants is irrelevant.  If we adopt "a two-institutions" approach, it is easy to envisage that the unattractive procedures of the Gender Recognition Act might obtain. If one parter changes gender, they'd have to get their opposite-sex marriage dissolved, and if they wished to, enter into another same-sex marriage or civil partnership with the same partner under their new, legally recognised gender. Alternatively, and in my view, clearly preferably, we could adopt a single definition of marriage that is simply silent on gender, and legal trans-transitions would have no effect whatsoever on the status any pre-existing marriage, nor would gender recognition be contingent on divorce. Either way, a decision will have to be made and to their credit, the Scottish Government consultation shows a clear awareness of this dimension.

So much for marriage. From a trans-justice point of view, however, a little thought shows that if left unreformed alongside, with its existing limitations, we'll soon be faced with the paradoxes in the administration of our civil partnerships. Remember, at present, you can only be civilly partnered to another person of the same sex. Under the new, liberalised marriage regime I'm envisaging, gender recognition within marriage need not be a problem, as our new definition of marriage need not be defined with respect to gender.  The Scottish Government consultation is silent on whether the parallel constraints on civil partnerships should similarly be liberalised, to allow men and women to get hitched while avoiding the institution of marriage altogether. At the moment, the government is primarily interested in the idea that civil partnerships should be capable of being celebrated by clergy, in churches. Such a narrow beam of attention seems to me an opportunity missed, overestimating the degree to which civil partnerships and marriage can be tidily separated.

Say the SNP don't follow my advice, and leave civil partnerships the exclusive preserve of same-sex couples, while adopting a single definition of marriage which does not impose gender qualifications and disqualifications on who can and cannot marry.  Under these conditions, a gender recognition certificate being granted to one partner need not require their marriage to be dissolved. It would be altogether different, however, if this couple had transacted a civil partnership before legal recognition of a gender change was sought by one  partner. If their gender qualifications are left unreformed, civil partnerships would continue to be dissolved when gender recognition results in a gender mis-match between partners who embarked on the legally formalised stage of their relationship the same gender. It would seem clearly paradoxical and unjust if mid-marriage trans-transitions left the relationship's legal status unaffected, while gender changes in civil partnerships would continue to be legally fatal to the formal recognition of the relationship, forcing an end to its current form. 

No discernible good would be served by such distinctions, and arguably, no good is served at all by making gender recognition contingent on the end of marriage, whether happy or not, committed or not, continuing or not.  If the law is not to presume that marriages may only be formed between men and women, it has no business presuming all marriages ought to end when that heteronormative image no longer obtains. So too for civil partnerships, which I'd strongly contend should be available irrespective of the gender of the couple seeking them, not least because failing to liberalise their gender qualifications has clear potential to generate perverse and unfair outcomes for trans people presently in legally-recognised relationships, but who aren't married.  A closer look at civil partnerships, it seems to me, is very much indicated.

For those interested in these issues, the Scottish Government consultation period ends on the 9th of December. The consultation documents can be read here, while Equal Marriage Scotland have generated this handy, simplified tool to make your views known to Scottish Ministers. Make your views known.

No parliament for all seasons...

It is one of the most famous passages in Robert Bolt's A Man for all Seasons, and struck me as a particularly apt quotation to sum up Wednesday's Justice Committee session in the parliament. The section comes towards the end of the first Act of the play. Sir Thomas More is Chancellor of England, and assailed. The brash, animal spirit of King Henry VIII has just reacted exceedingly poorly to More's unwillingness to sanction his divorce from the fruitless Queen Catherine of Aragon, and has left More's house in high dudgeon, leaving the feast prepared for him untasted.  More is all a-tremble, his sprightly mind already picking out paths through the law, that he might slip to safety, a loyal subject and an authentic witness to his own convictions both.

In the aftermath of this tense exchange with his sovereign, More is faced with Roper, an all-or-nothing firebrand whose reversing allegiances to different religious orthodoxies never seem to diminish the furious zeal with which he prosecutes the opinions he currently happens to hold. Lacking the modesty which an honest examination of the history of his ideas would reveal, Roper is a bloviating, fanatical prig, who Bolt amusingly summarises thus:

"Early thirties; a stiff body and an immobile face. Little imagination, moderate brain, but an all consuming rectitude which is his cross, his solace, and his hobby."

The smarmy Richard Rich - who subsequently perjures himself at the instance of the conniving Thomas Cromwell, having More convicted and beheaded, and himself invested with the dragon-chain of the Solicitor-General of Wales - has made a sweaty, suspicious appearance at the protagonists house, and shortly before the start of this section, has scuttled from the scene...

Margaret: Father, that man's bad.

More: There is no law against that.

Roper: There is! God's law!

More: Then God can arrest him.

Roper: Sophistication upon sophistication!

More: No, sheer simplicity. The law, Roper, is the law. I know what's legal not what's right. And I'll stick to what's legal.

Roper: Then you set Man's law above God's!

More: No far below; but let me draw your attention to a fact - I'm not God. The currents and eddies of right and wrong, which you find such plain-sailing, I can't navigate.  I'm no voyager. But in the thickets of the law, oh there I'm a forester. I doubt if there is a man alive who could follow me there, thank God...

Alice: While you talk, he's gone!

More: And go he should if he was the devil himself until he broke the law!

Roper: So now you'd give the Devil benefit of law!

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I'd cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned round on you where would you hide, Roper, the law all being flat? This country's planted thick with laws from coast to coast - Man's law, not God's - and if you cut them down - and you're just the man to do it - d'you really think you could stand upright in the wind that would be then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

With the honourable exceptions of Patrick Harvie and David McLetchie, there wasn't much evidence of the spirit of Thomas More in the Justice Committee, whose SNP majority are much keener on taking Roper as their model and taking an axe to the idea that laws are for legislators to define and cannot, justly, be left to the discretion of unelected state prosecutors to determine in detail what is and is not criminal.  It is astonishing that people have to be reminded of this fact. It categorically should not be the Lord Advocate's job, and if the Lord Advocate can produce clear(ish) guidelines, then Holyrood has no excuse not to do precisely the same, inscribing them on the face of the Bill and doing their duty - limiting prosecutors powers and mediating between the state and its targets.  Again and again, the stringent and moralising rhetoric of ministers proposes to divert our attention from what the new law actually says and what it will actually criminalise - invited instead to trust prosecutors, and trust the police, to use their arbitrary powers in a way that is not arbitrary.  George Orwell once wrote that "to see what is in front of one's nose needs a constant struggle". Agin that struggle, and against an autonomous human understanding of the legal instruments they are actually proposing, ministers have been singing sweet and lulling songs. And they reek.

Roper at least has the honesty to fantasise about hewing down the laws in his way as he strives to chase-down his diabolical foe. Holyrood is less forthright, not jettisoning but hollowing out commitment to the idea of law as a restraint on arbitrary power, instead re-imagining broadly, barely-defined legislative provisions  as a means of authorising the impositions of arbitrary power. It is lazy, authoritarian, and appallingly cavalier. To endorse the approach is to abandon the idea that a free people, if their conduct is to be regulated by law and subjected to punishments by the state, should not be subject to the arbitrary whim of prosecutors and police and should be reasonably capable of finding out what the law requires of them.  Our MSPs seem blithely indifferent to this. They put liberty on the block, preferring to knit speeches pearled with vague, moralising cant.

Disagree with me if you like, but as a Nationalist, as someone who campaigned for a Nationalist government, I'm astonishingly depressed. After May's triumph, we've had incompetence, bungling, a bitter, melancholic atmosphere apt to convince no one of the virtues of independence. For me, both Baffiebox and Alex Massie have it exactly right. For all of Eck's undoubted prowess, his much-vaunted mystique can all too readily imperil our balanced judgement of his judgement. Lurching from their inflammatory, contemptible denunciation of Cadder and Fraser to the vulnerable reactiveness and vaguery which has informed the Offensive Behaviour at Football Bill, for me, post-election, the SNP have presided over a political period which has been by turns despairing, girning, partisan, vacuous and dreary.  What a squandering of possibilities; what a waste; what folly.

"I hate Huguenots..."

To say that the SNP Government's Offensive Behaviour at Football Bill introduces two new criminal offences is superficially correct but practically misleading. It is better to think of both as little clusters of criminalisation - with several limbs - entangling conduct of a great range of severity by the bonds of a section and ties of a clause. With the addition of a public order element, the first new offence proposed - offensive behaviour at football - criminalises (a) expressing hatred, (b) stirring up hatred, (c) behaviour motivated by hatred, (d) threatening behaviour and (e) any other behaviour that a reasonable person would find offensive. Try to get your head around the gigantic range of conduct encompassed in that, particularly by ideas of expressing hatred and things the Reasonable Man would get disgruntled by, whatever the devil that might be. 

As one academic who submitted evidence on the Bill noted, holding all of the elements of the offences in one's head, and coming to some understanding of what sort of conduct is caught by them, can be a rather bamboozling enterprise. It is also an enterprise which has long been deferred in the parliament, which has thus far preferred to engage in a rather airy debate about the necessity of the new law and general condemnation of sectarian recrimination.  No longer, with any luck. Today in Holyrood, the Justice Committee is considering stage two amendments to the Bill. These have been forthcoming from Roseanna Cunningham, David McLetchie and Patrick Harvie. Depressingly, however, on a quick look through them, the proposed changed are all rather superficial, and don't invite SNP members and ministers to justify their proposals in detail in a way they have not been challenged to do thus far - and I fear - likely won't be before this Bill is enshrined in law.

From the government side, Cunningham proposes to introduce a mandatory reporting mechanism on how the law operates in practice, empower ministers to change the list of things-it-is-illegal-to-express-hatred of-in-relation-to-regulated-football-matches, and an additional clause on the protection of the freedom of speech (which significantly, only attaches to the threatening communications offences, rather than the offensive behaviour at football-specific provisions). As Christine Grahame noted in the stage two debate in Holyrood, it is unfortunate that this second plank of the proposed legislation has largely been ignored. In order to weigh this post by the kilogram rather than the tonne, that is a matter for another day.

For today, I wanted to focus in a little more detail on the first offence, by way of a wee scenario. When questioned about the breadth of the provisions criminalising offensive behaviour at football, Minister's have often rebutted: public order's the thing, and conduct which doesn't threaten public disorder won't be criminalised. But soft, what about section 1(5)?

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.

Think this through. Say I am a raging anti-Huguenot bigot, and have raging bigoted, anti-Huguenot friends. We congregate in a local pub, which is discreetly showing the mighty Kinlochbervie Rangers thrashing Partick Thistle on the telly.  "Aren't Huguenots bastards?", I ask my friend, who promptly sums up his choice catalogue of poisonous sentiments about French Protestants, saying "I hate Huguenots". It is at this point that the police happen to chance in, scoping out a suitable spot for a post-shift tipple. Overhearing my hating crony's remarks, and armed with the newly-passed Offensive Behaviour at Football Act, they get out the handcuffs and advise him that post-Cadder, he can now avail himself of legal representation when questioned. Before he is carted off, I just manage to ask one of the constables "how the devil was this a crime?" 

This learned officer of the law could give me the following information. Firstly, he points to the football match being broadcast in the background, regulating my chums comments under s2(3) of the Offensive Behaviour at Football Act. Grudgingly, I cannot avoid conceding that our anti-Huguenot hate meeting is potentially caught. Secondly, the jurisprudentially informed officer would identify that one element of the offence is simply to "express hatred" [s1(2)(a)] about a "social or cultural group with a perceived religious affiliation" [s1(2)(a)(ii)]. To say "I hate Huguenots" is to do just that. Being a calculating, raging anti-Huguenot bigot, I too had boned up on the new law.  "But what about the public order element?", I ask triumphantly, assured that my friend would soon be liberated. "Look around," I say. "The pub is passive, chaos has not ensued and the peace remains undisturbed." The officer could concede the general serenity of the room easily enough, but that wouldn't smudge away his indulging smile or liberate my loathesome friend. 

"Read section 1(5) more closely, young man. You don't have to cause public disorder. The test is that the 'behaviour would be likely to incite public disorder', even if where is really nobody there to be incited." Goggling, I stammer out "so you mean, if we pretend a Huguenot had been here, and we assume that he would be likely to being incited to cause a hubbub by my friend's expressions of hatred, then he can be convicted of offensive behaviour at football?" "Yup". "So basically, the vaunted public order limitation is potentially entirely fictional, since the Act specifically aims to criminalise situations relating to regulated football matches where groups of bigoted misanthropes congregate to air their views, and nobody who is actually present would bat an eyelid at the scabrous sentiments we express, being bigots themselves?" Shoving the miserable anti-Huguenot out of the door, the constable crisply concludes: "Just read the law, son." 

I can hear the sound of distant scoffing already, but on my reading of this tortured statute, the scenario I'm envisaging is clearly regulated by this Bill. Clearly, it isn't the primary business which Holyrood thinks it is about, but it is the practical consequence of their general commitments to it. More generally, ministerial protestations that the "public order" aspect will be a substantial safeguard at least start to look questionable, when the statute itself invites courts to invent imaginary incitees from impugned groups to justify the criminalisation of dismal sentiments with no realistic prospect of inciting assembled persons at all. 

This morning, I note that some nationalist members of the Committee are scoffing at the failure by Labour and the Liberal Democrats to produce any substantial amendments to this Bill, suggesting that their opposition amounts to shameless opportunism. That is certainly a disappointing. However, to imply that this is the only reason anybody could have for questioning or doubting the virtues of this hastily-drafted and complicated statute is clearly ridiculous.  From the beginning, ministers from the First Minister downwards have made muddled and often confused pronouncements on the policy objectives this Bill seeks to realise, while justifications given for the proposed provisions have marched and counter-marched all over the place since the Bill's first "emergency" introduction in the summer. Partisan loyalty being what it is, I don't expect SNP MSPs to publicly concede these things, but the defensive arts of the braggart are growing tedious. 

Legislators, it is your job to scrutinise Bills. You'll do your country a far greater service by applying your mind to the confusions and limitations of what this Bill is actually proposing, than gloating over a crushed opposition in the chamber.  Indeed, it strikes me that the Nationalist tone at the stage two debate on the Bill in Holyrood struck an ugly parallel with recent Scottish Questions in the House of Commons. A tiny knot in a gigantic room full of folk opposed to them, the Unionist parties delivered a hysterical kicking to the Nationalists. I was particularly struck by the psychological satisfaction this piece of institutionally sanctioned barbarity clearly gave to those who participated in it. Whatever the triumphant Nationalists do elsewhere, however pitiful the electoral fortunes of the Labour, Liberal and Tory parties in the country, in the serene tabernacle of the House of Commons, the small sprout of Nats can always be treated like contemptible, upstart toadstools, handily unrooted. The delirious kicking in the room makes up for the kicking that all three received out of it. 

Similarly, in Holyrood, the SNP benches may applaud ministerial invective, indict the intentions of their opponents and scoff at any expressions of concern about the football legislation. In the space, I'm sure this lends them an overwhelming sense of reassurance. It is a warm and compensating feeling. Our lot didn't cock up, it is just everyone else, up to their usual obstructionist tricks.  Particularly significant, I think, that the SNP have reached so speedily for this familiar, self-satisfying puir me narrative, which in turn disavows the extent to which this whole Bill has been a bungling enterprise, and the shock at the skepticism and division which has met what they clearly hoped would be a simple, popular proposal.

Just as their disavowed defeats make the Unionist majority in Westminster don their tackety-boots, whatever doubts are expressed about the Football Bill outside Holyrood, in the chamber the roaring Nationalist majority can always cheer away these anxieties. This is political intoxication, not good sense and not good governance. We're stuck talking about a general diagnosis, rather than attending to the reason or unreason of the particular prescription the SNP has proposed. Parliamentarians considering amendments in the Justice Committee today would do well to follow the advice of my fictional policeman: "Just read the law, son."

The grand début...

It was a queer way to start a Sunday morning. Caron said I was "throwing off my wig".  As some of you may well have noticed, yesterday, I put in an appearance on the BBC's Politics Show Scotland, discussing the Carloway Review in general and corroboration in particular.  The whole experience was rather surreal.  Best I can recall, I last appeared on telly as a callow youth on an edition of that most razor-edged of Scottish horticultural shows, The Beechgrove Garden. A larch doesn't answer back, or like the eminently-well-qualified Maggie Scott QC, articulately defend an alternative view. Amusingly, most of the reaction on Twitter concerned wigs and their absence, and bereft of a peruke to speculate upon, thoughts on my generous quantities of hair and limited decrepitude. I enjoyed a particular chortle at Caron's observation, that apparently I look "more like a rock star than a lawyer". Courtesy of Peter Curran, those who missed it can see the (tragically wigless) clip below. 

Although it is in many respects unfortunate that the reaction to the Carloway Review has been so dominated by the issue of corroboration, the focus is understandable. It would be murderous tricky properly to cover the issues raised by Cadder and spoken to elsewhere in the four-hundred page document - and the media's nose for controversy is not to be faulted.  What is an arrest; who a suspect, and what is the difference? What powers should the Scottish Criminal Cases Review Commission have to refer cases to the High Court, and should the tribunal be obliged to accept the cases so-referred for consideration? If the beginning of wisdom is the definition of terms, then snipped debates on the telly are particularly ill-suited to advancing a full and rounded understanding of what is being proposed and defended.  They are, however, not a bad start. That said, although Carloway was certainly concerned with the modalities of access to a lawyer in his review, to paraphrase the late Lord Rodger, on the general principle, the UK Supreme Court has spoken in Cadder, and the case is closed.  As to Carloway's recommendations on corroboration, the controversy has only started to simmer, and has anything but concluded.

I should begin by saying that I sympathise with a great deal of what Maggie Scott QC said in the interview, and her concerns. If Scotland does away with corroboration, will any judicial assessment of sufficiency of evidence against the accused occur? These are substantial, fair questions. As I tried to emphasise, it is clearly  problematic to launch right into a conversation about the good achieved by corroboration, and the perils of its elimination, without giving folk some idea of what can and cannot corroborate evidence lead against the accused person.  Solicitor Advocate Chris Fyffe discusses this point with admirable clarity here.  Otherwise, we'll be left tossing rhetorical squibs at one another (both damp and snappy) to no purpose except mutual recrimination.

Secondly, to pick up one point I was able to make in passing, ardent defenders of corroboration should look to the European Court of Human Rights's case law on states' positive obligations, set out in M.C. v. Bulgaria and summarised by me in this post from earlier this year.  The court has held that "Articles 3 and 8 of the Convention must be seen as requiring the penalisation and effective prosecution of any non-consensual sexual act" and held that Bulgaria's restrictive prosecution practices - only prosecuting cases where there was clear evidence of violent force being used - violated the Convention.  Arguably - Scotland's system of corroboration could well be impugned on a similar basis, its formalistic exclusions failing effectively to protect its citizens from all forms of sexual abuse. Contra that, you might contend that by imposing restrictive majority voting rules on their juries, England similarly limits those who can be convicted to those whose cases where evidence is available, capable of satisfying ten persons out of twelve of the guilty of the accused, beyond reasonable doubt.

I'll tell you now, it isn't clear how Strasbourg might decide this issue if a Scottish victim whose case was killed-off by the corroboration rule took it to the Court. However, I can certainly see an argument, founding on M.C. v. Bulgaria, that our corroboration rules makes the criminalisation of some offences theoretical and illusory, rather than practical and effective. (By the by, although an understandable point of emphasis, we should be clear that these exclusions are by no means limited to sexual assaults).  Alternatively, the European Court could well find a defence of corroboration to be convincing and within Scotland's margin of appreciation, its policy wiggle room.  However, we needn't approach the problem in this way. While we may ponder the prospect of a future human rights case with a spirit of grudging compliance, might it not be better to ask ourselves, are corroboration's stark exclusions really justifiable? Are they proportional to the laudable aim being pursued - to afford protections to accused persons, to avoid miscarriages of justice? 

That Scotland seems to be the only state in Europe which retains corroboration isn't necessarily a reason to junk it, but certainly makes the disaster-narratives emanating from some Scots lawyers seem rather hysterical. As I emphasised on the Politics Show, one shouldn't underestimate how radical this proposal would be, altering how police, defence and prosecution lawyers, and judges, are forced to evaluate criminal cases before them.  That's true, but nevertheless, hardly merits the conclusion that what Carloway calls a "late medieval jurisprudence" should quietly continue unjustly to obtain in Scotland.  Although Maggie Scott was the very model of reason yesterday, it might be more effective if other lawyers with strong concerns about the abolition of corroboration could put their case for its retention more in sorrow than in anger.  Getting vexed about the proposed abolition of doctrine which for most Scots may well seem obscure and formalistic, and assuming damaging air of unconcern about the fate of those whose cases never proceed to court, are likely to do nothing to convince politicians and public to ignore Carloway's recommendation that corroboration be eliminated, as the contested, tricky virtues and vices of the doctrine are scrutinised over the coming months and years.

Corroboration an "archaic rule that has no place in a modern legal system..."

As anticipated yesterday on Carloway Eve, this morning, Court of Session judge Lord Carloway has delivered his full report into Scots criminal law and practice, which can be accessed in a range of electronic forms here.  The substantial body of his report and recommendations runs to some four hundred pages, so I'll be circumspect and afford myself a little time to digest his findings before commenting fully. For those less keen on wading through a deluge of judicial prose, the ever-popular executive summary furnishes the headnotes on police custody, right of access to a solicitor given the Cadder decision, rules of evidence, drawing inferences from the silence of the accused when questioned by police, and appeals. The element particularly liable to get the press hopping is Carloway's stark - and rather brutally worded - finding on corroboration, discussed yesterday. Despite some indications in the press earlier on in the process that this old Scots rule would be spared searching examination, Carloway has bluntly concluded:

26. The Review is, however, in no doubt that the requirement of corroboration should be entirely abolished for all categories of crime. It is an archaic rule that has no place in a modern legal system where judges and juries should be free to consider all relevant evidence and answer the single question of whether they are satisfied beyond reasonable doubt that the accused person committed the offence libelled. Abolition would bring Scots law into line with modern, and almost universal, thinking on how to approach evidence in criminal, and indeed all other, cases. There is little evidence to suggest that the requirement is in fact an effective protection against miscarriages of justice. Research commissioned by the Review suggests instead that the corroboration requirement may well hinder justice by preventing credible and reliable cases from being prosecuted. Furthermore, the requirement has developed into a series of rules which, realistically, are not capable of being understood by many outside the world of criminal legal practice and are inconsistently applied by many within it.

Such a suggestion is likely to be deeply controversial, not least because Carloway's review only passingly touches on other ways doubt is enshrined in the criminal law elsewhere. In England, for example, where no corroboration rule obtains, jury verdicts are reached on a qualified majority basis of ten out of twelve. Where the jury cannot reach a decision - is "hung" - there may be a retrial. By contrast, in Scotland, decision is by bare majority of the fifteen jurors, who cannot fail to reach a verdict like their English counterparts. If a Scottish jury cannot agree on the guilt of the accused, he is acquitted and is not susceptible to retrial. That said, this sort of jury angst can be overstated. While jury trial is used for the most serious of crimes, attracting the most punishing sentences, the vast majority of criminal cases in Scotland are decided by sheriffs sitting alone, or in Justice of the Peace courts. Off the top of my head, jury trials constitute around 5% or so of criminal proceedings undertaken, despite their dominance in the public consciousness and in dramatic representation. 

I'll have more to say on the detail of Carloway's findings and recommendations anon.  Until then, consult them for yourselves here.

"'Twas the night before Carloway..."

"Twas the night before Carloway, all through the land

Jurisprudes they were asking, "what would he demand?

Corroboration, right to silence his care,

Just what will Lord Carloway have to say there?"

And prisoners nestled all snug in their cells,

All hoping that Cadder could lessen their spells,

And polisfolk fretting, "just who can we ask?"

All settled their brains on old Carloway's task..."

At 10.00am tomorrow, High Court judge, Lord Carloway, is scheduled to publish his Review, set up by Kenny MacAskill after the Cadder v. H.M. Advocate judgment of the UK Supreme Court and Holyrood's subsequent, breakneck emergency legislation.  The pair agreed the following terms of reference, which gives something of a flavour of the issues which Carloway's audit of Scottish criminal procedure might touch on:

Terms of Reference

(a) To review the law and practice of questioning suspects in a criminal investigation in Scotland in light of recent decisions by the UK Supreme Court and the European Court of Human Rights, and with reference to law and practice in other jurisdictions;

(b) To consider the implications of the recent decisions, in particular the legal advice prior to and during police questioning, and other developments in the operation of detention of suspects since it was introduced in Scotland in 1980 on the effective investigation and prosecution of crime.

(c) To consider the criminal law of evidence, insofar as there are implications arising from (b) above, in particular the requirement for corroboration and the suspect's right to silence;

(d) To consider the extent to which issues raised during the passage of the Criminal Procedures (Legal Assistance, Detention and Appeals)(Scotland Act) 2010 may need further consideration, and the extent to which the provisions of the Act may need amendment or replacement; and

(e) To make recommendations for further changes to the law and to identify where further guidance is needed, recognising the rights of the suspect, the rights of victims and witnesses and the wider interests of justice while maintaining an efficient and effective system for the investigation and prosecution of crime.

All of this may seem quite technical, but as is so often the case with law, will have a considerable impact in quotidian places, on ordinary people. To compress and gloss the issues somewhat, the key concern in Cadder was whether detained suspects, subject to police interrogation, should have a right to access a lawyer before and during their questioning by the police under the European Convention on Human Rights.  Contra the High Court of Justiciary's judgment on the issue in H.M. Advocate v. McLean, the Supreme Court answered resoundingly positively.  The Crown could not rely in evidence on admissions made by suspected persons in the absence of access to a solicitor and afford the accused person a fair trial.  Before Cadder, this lawyerless detention was limited to six hours. Somewhat ironically, the consequence of a judgment that was favourable to the rights of suspects was the subsequent emergency legislation, which actually doubled the period for which suspects can be detained from six to twelve hours, with the police empowered to extend that period of dentition for another twelve hours, without judicial oversight.

Carloway's Review conducted a series of "roadshow" events as part of its consultation, focussing on four areas identified as key: (1) police custody (2) the form of legal advice available to those in custody (3) Scotland's idiosyncratic rule on the corroboration of evidence and (4) drawing adverse inferences from the silence of the accused.  Many respondents in the consultation expressed qualms about addressing points (3) and (4) ragtag in a report likely to focus on points (1) and (2), suggesting that their further, discrete and specific examination by the Scottish Law Commission may be in order.  Many of the themes arise in Carloway's Review as a result of the impression that Cadder substantially strengthens the rights of suspected and subsequently prosecuted persons, and as such, may call for a rejigging elsewhere, to "balance" the interests of the public in the prosecution of crime, and the interests of accused persons to be tried fairly.

Better to understand tomorrow's findings, it is worth a little exposition of the changes wrought by Cadder, and why those changes have prompted Kenny MacAskill to ask Carloway to apply his jurisprudential fibres to the right to silence and to corroboration, and their interlacing.  Consider this concrete example. (I know some folk feel uneasy when I discuss this sort of issue in an abstract way. I trust they'll forgive me another transgression. My aims here are limited). An allegation of rape has been made, founding on the absence of consent, the victim sustaining no other physical injuries. Say the victim delays reporting the crime to the police, such that any evidence of intercourse (consensual or not) has evaporated.  In the past, pre-Cadder days, the police could pick up the suspected person and question them sans solicitor.  Thus questioned, it was not, I understand, untypical for the suspect to admit sex between himself and the complainer, but to deny that it was non-consensual.  Here corroboration kicks in. In Scots criminal law, corroboration requires that essential elements of the charge be corroborated by two independent sources of evidence. This is notoriously difficult to achieve in the case of sexual offences, of the sort I'm envisaging here.

I don't think it is to traduce the understanding of your average Scottish punter to say that most will not have a detailed command of the implications of this doctrine at the best of times, never mind after being picked up by the polis, suspected of a very serious offence indeed.  Ignorant of the law, many will admit sex but deny rape: admissible evidence in court against him, if the police questioning is fair. From the calculating perspective of an accused person, to have done so can be a grave mistake. It may be that save for the complainer's testimony, there is no other evidence at all that sex took place, and without corroboration, any charge must fail. If the accused had kept their peace, neither confirming or denying that any of the alleged events had taken place, he could not have been convicted of the offence. Having admitted that the event if not the offence had taken place, however, he provides the corroboration which might see him convicted.  As Lord Rodger observed in Cadder, these provisions were conceived deliberately to deprive...

"...the suspect of any right to take legal advice before being questioned by the police, in the hope that, without it, he will be more likely to incriminate himself during questioning." [Para 91]

Such are the potential eccentricities of the corroboration rule. But consider the post-Cadder situation. Suspected persons will be able to consult solicitors and have them present during police questioning. And if your lawyer is at your elbow, and has briefed you to keep your gob shut, it is much less likely that suspects will spontaneously disclose potentially corroborating or self-incriminating evidence of the type I've been discussing. The upshot, the argument runs, is that it will prove much more difficult for police to coax admissions from suspected persons that will put them in the dock. Whereas the ignorant suspect in the hypothetical rape case I've been discussing may have incriminated himself before Cadder and been convicted because of his unwitting corroborating evidence, in future he is likely to be better informed about the law, and as such, keep mum and have no case to answer, absent corroborating proof of his crime.

Should police and prosecutors profit from the ignorance of suspected persons? Alternatively, is it appropriate that Scotland affords its citizens the same protections as those in England enjoy - and more broadly, across the Council of Europe? Whatever your view, what's done is done. After the Supreme Court's Cadder ruling, there is absolutely no possibility of returning to the anterior position, where ignorant suspects could accidentally incriminate themselves in the way a more studied villain would not.  It is in this sort of context that Carloway's reference to "adverse inferences" to silence during police questioning is to be understood. We'll see what his Lordship concludes, about this and other issues, at 10.00am tomorrow.

Adam Tomkins: Unionist stooge?

Now it is Adam Tomkins' turn. The University of Glasgow public law professor makes headlines in today's Herald and Scotsman, echoing Aidan O'Neill QC's argument of last week that under its current powers, Holyrood's referendum on Scottish independence could be - and they argue, probably successfully - challenged in the courts. For regular visitors to this blog, despite the calumny and dismay of the newspaper headlines, Professor Tomkins argument should come as no surprise. The Scotsman invite nationalists not to deride Tomkins as a "Unionist stooge".  There are a number of very good reasons not to do so, and to engage with the arguments he actually makes. However, from various conservations about this on Twitter, I'm left with a general sense that folk are uncertain and unclear about just what O'Neill and Tomkins' are actually arguing, and why.  Better to understand their case, I thought it would be handy to generate a lightweight(ish!) account of the potential legal controversy surrounding the independence referendum, and to answer a few of the familiar objections many of you have brought up.  This is it.

Q: So, the Scottish Government say they are confident that the referendum Act would be within Holyrood's powers. How would we tell, in general terms, if an Act is within what you call the parliament's "legislative competence"?

Holyrood is an institution whose powers are framed by statute - the Scotland Act 1998. There are a number of different ways in which Holyrood's capacity to legislate as it sees fit is limited. These are laid out in section 29 of the Scotland Act, including compliance with European Union law and the European Convention on Human Rights. For the referendum, however, it is neither of these bodies of norms that is the problem. It is the concept of "reserved matters".

The general structure of that Act is to devolve all of the powers which are not specifically reserved.  Matters reserved to Westminster are elaborated in the Act's fifth schedule.  Any Bill passed by Holyrood which is determined to "relate to a reserved matter" will fall outwith the parliament's legislative competence. Simply put, although it may look like an Act, and have been passed by Holyrood with the usual stately legislative air, if a court decides a piece of Holyrood's legislation "relates to a reserved matter", they would disapply and strike down the law as beyond the parliament's powers to command. 

Q: So what does "relates to a reserved matter" mean?

It is difficult to say with absolute clarity, as we are still in the comparatively early phase of devolution litigation. As indicated, the reserved matters themselves are enumerated in Schedule 5. As to the "relates" part, the Scotland Act itself requires courts, determining whether an Act of Holyrood "relates to an reserved matter", to consider the legislation's "effect in all the circumstances" (s29(3)). In their judgment in the 2010 case of Martin & Miller v. H.M. Advocate, the majority in a divided UK Supreme Court elaborated this idea, holding that Holyrood Acts must be examined based on their "purpose", using legislative history, policy and debates in parliament to discern that "purpose", and thus, whether it "relates to a reserved matter". 

Q: But Holyrood talks about reserved matters often, even voting on them in the chamber. Take the Iraq War, for example. That was "reserved" but MSPs voted on it, so surely a referendum should be fine too?

Parliament is certainly not prohibited from talking about and adopting motions touching on reserved matters by the Scotland Act. However, a debate or a motion of the parliament is not legislation and it is legislative competence that poses the difficulty for the SNP's proposed referendum Bill. Section 29 applies to purported laws of the Scottish Parliament, not its debates, so the analogy falls down.

 

Q: Ah, but surely the independence referendum wouldn't change any laws? Wouldn't it be advisory rather than binding, and thus, not a problem?

Yes, according to our constitutional theory, a referendum would only be advisory, whether or not it was called by Westminster or Holyrood. Neither can arrange binding plebiscites. However, the key difficulty facing Holyrood's Bill isn't about changing the law.  It is whether or not the Act authorising the referendum would itself be legally competent.

Q: Well, why could it not be?

Based on our general overview, we know that an Act of the Scottish Parliament will be operating beyond its legal powers if its legislation "relates to a reserved matter" and will be susceptible to being struck down by courts.  We also know that the idea of its "relation" should be interpreted in terms of its "effect in all the circumstances", a phrase which at least suggests that courts shouldn't necessarily interpret the idea of "effect" narrowly, for example, by focussing on the advisory nature of the referendum and its limited legal effect vis-a-vis the future of the Union. Following Lord Hope's dicta in Martin and Miller, we can also expect Courts to have regard to the purpose of the legislation.

Q: So apply this to the referendum...

Having read schedule 5 of the Scotland Act 1998, we know that certain aspects of the constitution, specifically, "the Union of the Kingdoms of Scotland and England" (s1(b)), are explicitly reserved to Westminster.  Applying our general approach to this particular case, what we have to ask ourselves is: does an Act enabling an independence referendum to be held "relate to a reserved matter"? If the answer is "yes", the referendum would be unlawful.  Following Hope, our next question, and the court's next question, is "what is the effect and purpose of the Act"?  

Ask any political nationalist, and they will doubtless inform you that the purpose of the referendum is to pave the way for an independent Scotland. It isn't a genteel opinion-seeking exercise, asked out of idling constitutional curiosity. If judges examine Holyrood's Official Report, they will come to understand that clearly enough. Although its effect may not be legally binding, unilaterally creating a sovereign Scottish state, the clear political project advanced by the referendum is the break-up of Britain, and the end of the Union. What the devil would be the point otherwise?

Q: So the referendum is illegal?

Not necessarily, but given the arguments I've outlined, the Scottish Government's claim that it is quite certain that the independence referendum is within Holyrood's powers looks decidedly problematic.  Forget the law and the judges. Park your partisan leanings, and consider your common-sense understanding of language. Does an independence referendum relate to the Union? It seems pretty plain to me that it absolutely does. 

So, in the absence of clarifying amendments emanating from Westminster, in order for Holyrood's referendum to escape being knocked-flat by judges, we need to find a way to make our understanding of "relating to reserved matters" more rather than less lawyerly.  To save the referendum, we have to work up a more arcane reading of the plain language, for simply to engage in a commonsensical construction is to kill the referendum pretty quickly. In this context, the cunning lawyer is the nationalist's friend, not his foe. I've previously suggested a few arguments to this effect.

Q: Does any of this even matter? If we hold our referendum, yon Tory and Labour villains will just have to lump it, won't they? Democracy trumps law, after all.

Unfortunately, despite the popularity of the sentiment, that is not how these things actually work. A referendum, if challenged in court, won't happen until the challenge is resolved. If the case goes all the way to the UK Supreme Court, that could take years. Certainly months. If timing is of the essence, and cunning Eck is laying traps for his foes and plans for his allies, any challenge may blow the whole endeavour off course, or the Westminster government would be forced to intervene. On the plus side, the tactical Nationalist may see some benefits in outraging public dignity by what is certain to be seen as a caviling and illegitimate challenge to Scottish self-determination.

Q: What about the Act of Union? Claims of Right? Lord Cooper on the English constitutional tradition?

Show me the section of the Act of Union or the Claim of Right or paragraph of MacCormick v. Lord Advocate which provides that a future devolved parliament, set up by the parliament created by the Union, shall have untrammelled power to hold referendums. You won't find it. It isn't relevant.

Q: What about O'Neill and Tomkins other points? Are they right that the independence referendum would have to be held across the UK, or at least, held and passed by Westminster to be lawful?

Absolutely not on both counts. The right of self-determination of peoples is enshrined in international law. O'Neill's point about a pan-UK referendum was a fine squib to crack under nationalists, but was not, I think, a terribly plausible piece of analysis or a serious proposal.  It is certainly not a "constitutional necessity", if Scotland is to meditate through a referendum on its future.  

Secondly, agaisnt Tomkins, there is nothing set in stone about what is and is not reserved to Westminster. The Scotland Bill could be amended to eliminated the legal problems identified by both authors. Alternatively, an order under section 30 of the Scotland Act as is can alter the list of reserved matters in Schedule 5, also eliminating the legal problems. I share Alan Trench's view that Tomkins' solution is "rather baffling". There is categorically no need for Westminster to take over to eliminate these difficulties.  It doesn't make one a Unionist stooge to identify the legal problems; one does assume a rather stoogelier aspect when one's solutions have such clear political ramifications in the hungry, Nat-trouncing atmosphere of the House of Commons.

Unfortunately, by failing to address these legal issues directly themselves, the SNP has handed Westminster an ideal opportunity and pretext for taking over the referendum, citing legal problems to justify the adoption of properly political solutions. Had the SNP resolved to fix these using either of the procedures I mention earlier, in a less febrile political atmosphere, Unionists trying to seize the referendum couldn't have cited unlawfulness as a basis for their intervention. Now they can. Whether that is to be lamented, I leave to your judgement. On the other hand, as a nationalist of low animal cunning, you might well think that for Westminster's haughty and domineering intervention might not be the grand gesture of political verve that some seem to imagine it might be, and that it has the real potential to rile the natives...

Devo Max: Losing "Sod it" nationalists?

These are difficult questions; questions many (N/n)ationalists will be pondering. Given current levels of support for independence, even factoring in considerations such as turnout in any referendum, convincing a majority of the Scottish public to support independence looks decidedly challenging.  That being the case, you might well begin to wonder: why not supplement your secessionary question with a second, milder, more modest option? If you were convinced that independence was unwinnable, using the occasion of your defeat to secure further powers short of independence seems self-evidently the cunning thing for a calculating nationalist to do. And yet, and yet. What if optimism and strategy suggested that independence was winnable? For a nationalist unresigned to defeat, a second question takes on a much more problematic tactical aspect. Might a straight yes-or-no referendum be winnable, while offering a multi-limbed plebiscite, and a safe median alternative, would actually attenuate the nationalist argument, potentially blowing the historical opportunity for independence because of an excess of caution?

It is easy to envisage the situation of a voter going into the polling station, disgruntled with the coalition, buggered by the economy, whose passions are generally not constitutional passions, but in the instant thinking 'I don't know what everybody else is doing, don't expect to be in the majority, but sod it. I'm voting "yes"'.  Although highly impressionistic, my sense is that the Holyrood election of 2011 - and the surprising scale of the SNP's victory - was partly generated by just this sort of voter, and just such apprehensions. My mother had a curious vignette on point from one of her colleagues. Staunchly Labour-supporting from a historically Labour-supporting family from West Central Scotland, she arrived at her polling station roiling with indecision. Having eyed the blank ballot for a good while, pencil indecisively hand, at last she drew the heavy x against the name of the SNP candidate. Contemplating what she had done, quivering, qualms overwhelmed her. She spoiled her ballot, unable decisively to act against the commanding forces of her biography. Sod it, she thought, but couldn't quite bring herself practically to follow where that notion lead her. Others abandoned their concerns and the Sod it voters carried the day.

And when one thinks about it, the independence campaign is likely to present arguably similar issues. Despite a commanding array of endorsements, potent campaign structure and strategy (very neatly summarised, might I add, in the new edition of David Torrance's Alex Salmond biography), because of the long run of polls showing a Labour lead, the SNP had at least something of the underdog about them in May. At the time, I was drawing on a little biography to write about Labour's susceptibility to the terrible vengeance of political schadenfreude as unworthy and incapable favourites.  It is vital for us to remember, despite the result, that it was impossible to discern what would happen, as we stepped out into the dreich atmosphere of May's miserably wet polling day.  A Labour government, or at least a Labour plurality in Holyrood, was not unthinkable. Given the weighty trend of polling in their favour, and the prospect of a dyspeptic, ramshackle and confused pro-Union campaign, the referendum campaign at least starts to take on a similar complexion, with bungling favourites facing down a much better lubricated nationalist machine. In quiet moments, one might fondly begin to admit the possibility of a Sod it majority for Scottish independence. These are the circumstances, after all, which produced May's accidental landslide.

Whatever you make of these idle speculations, do we have any evidence to back up our suspicions? Might having some sort of "devo-max" option on the ballot paper - even one which is not in direct competition with independence in some sort of three way preference game - diminish support for independence overall? At the moment, we don't have a great deal to go on, but here's something. Supplementing last week's poll from YouGov on Scottish independence, last Sunday saw results from a Poll conducted for the BBC's Politics Show by TNS-BMRB. The poll aimed to determine public attitudes to the constitutional question when options are set against one another. Given three options, the BBC wanted to discern which is the popular preference. Sampling 1,020 people in Scotland, and some 1,763 in England and Wales, the pollsters asked: "Thinking about the future of Scotland, which of these three options would you support the most...?" giving respondents their choice of...

(1) Keep the current arrangement of a Scottish Parliament with its existing powers.
(2) Transfer more powers from Westminster to the Scottish Parliament, including tax and welfare but excluding defence and foreign affairs.
(3) Full independence for Scotland.
(4) Don't know.

It is interesting to read these results alongside TNS-BMRB's September poll on independence, albeit conducted with a rather different orientation, and without the option of supporting a transfer of additional powers shy of independence. The pollster's early Autumn findings on the topic were (with the change from a June poll on the same topic in brackets)...

Independence? All respondents...

• Agree  ~ 39% (+2%)
• Disagree ~ 38% (−7%)
• Don't know ~ 23% (+5%)

This Sunday, support for independence in the context of and in competition with a "devo max" type option broke down...

All respondents...

• Independence ~ 28%
• Status quo, or enhanced powers ~ 62%
• Don't know ~ 10%

Even taking the TNS-BMRB's polling data from June, which recorded lower support for independence than September (37%), this weekend's poll shows a decrease of 9% in first-preference support for independence when increased powers is also an option. Taking September's figures, support for independence haemorrhages by 11%  There a number of caveats to bear in mind, reading this. As anyone who has made an effort to follow polling on attitudes towards independence over the last few years will know, the general outlines of opinion are familiar, but the detail is very tricky and persistently volatile between pollsters and polls.

However, here's the character this latest TNS-BMRB poll allows us to begin to think about, and to gnaw Nats with worry. She is pro-devolution, and not inveterately opposed to independence, but minded to stay within the UK if possible. In short, she is a potential Sod it voter in favour of independence.  These findings might suggest that by including any sort of alternative shy of independence, in a trice, (N/n)ationalists have lost a substantial segment of the Sod it vote.  To test this thesis, it would have been fascinating if TNS-BMRB's three-way question had been supplemented by another, asking how the same folk would vote when asked a simple question, independence, yes or no? In the absence of such a question, we can but speculate with the material available to us, and consider the assumptions which appear to be steering nationalist thinking on this.

They look problematic, to say the least. Assume (a) we think independence is winnable but the outcome remains contingent and (b) we quite fancy using the referendum as a mechanism to ensure some increase in Holyrood's power.  Unlike the skeptic who has already written off all possibility of independence, who advances nationalism for devolutionary aims, folk sharing these assumptions hope for a win-win scenario.  Their strategy relies on the idea that if a persuasive case can be made for independence, voters will cast "yes/yes" ballots, and that the inclusion of some sort of second question with a devolutionary logic is autonomous from the core SNP case for independence, neither contributing to nor detracting from that case. The autonomy of the two propositions, it is imagined, is reinforced by breaking the options down into two discrete questions, rather than setting them against one another in a single ranking of preferences.

Realistically, however, is it not much more likely that voters will do precisely this, reading their ballots as a whole, and understanding that they are effectively being invited to choose between more devolution and independence, and vote accordingly? One reading of the TNS-BMRB data strongly suggests that to countenance the presence of "devolution max" on the paper is to invite voters to strategise about their preferences, to the manifest disadvantage of independence, and its appeal to that most foundational of political principles: "Sod it."

Those full TNS-BMRB tables.

O'Neill QC: referendum "has a high chance of being struck down by the courts..."

"We need to talk about the referendum", writes Scottish advocate Aidan O'Neill QC over at the UK Supreme Court blog. In cases likely to have come to your attention, most recently O'Neill appeared before the UK Supreme Court as it determined the legal competence of Holyrood's pleural plaque legislation, putting in a rather snappier performance in defence of the Act than learned counsel for the Lord Advocate. 

In his short article, O'Neill turns his attention to an issue which has much exercised this blog and blogger over the past few years: the shoogly legal competence of any referendum on independence passed by Holyrood. O'Neill's intervention is significant, not least because he is a prominent public lawyer, well-versed in the jurisprudence slowly developing concerning Holyrood's powers and their limits - and critically, just the sort of fellow a potential litigant, wishing to challenge the lawfulness of the independence referendum, might wish to instruct to pursue their case, and waylay the plebiscite. O'Neill argues that the referendum Act "has a high chance of being struck down by the courts as not law", and citing the AXA litigation as a salutary example of law's delays, echoes my profound concerns along the same lines.  He makes a number of further points in the piece. Here's a short excerpt...

"... any Act of the Scottish Parliament which “relates to” the union between Scotland and England, or the constitutional position of the Crown or the UK Parliament, will simply not be law because any such Act would be outside the legislative competence of the Scottish Parliament to pass. On the face of it, this presents an insurmountable legal obstacle to the Scottish Parliament enacting any law which would provide for an independence referendum to be held in Scotland. How else might any such measure, in terms of both its purpose and effect (see Martin and Miller v HM Advocate [2010] UKSC 10), be described other than as “relating to” these reserved aspects of the constitution?  As Lord Sewell, the promoter of the Scotland Bill in the House of Lords, advised Parliament:

“[A]s the Bill stands the Scottish Parliament will not be able to legislate to hold a referendum on independence as the union of the kingdoms is already a reserved matter. …. [L]egislation for a referendum on independence would be legislation about whether the Union should be maintained and so be beyond the competence of the [Scottish] parliament.”

O'Neill's piece is obviously not the final word on the legality of an independence referendum, nor are the arguments he adduces necessarily the decisive arguments. However, for a lawyer as well-versed as O'Neill to be making these points surely ought to wake nationalists from their dogmatic slumbers, dismantling the assumptions that the independence referendum is unchallengably within Holyrood's competence to command, simply because the SNP leadership refuses to discuss in public what they apprehend privately. In one respect, O'Neill is indubitably correct. We need to talk about the referendum. There are a number of ways in which these legal doubts could be eliminated, and Holyrood's powers to hold an unindictable referendum assured. I've previously suggested that SNP MPs make amendments to the Scotland Bill as it wends its way through Westminster to affect this.

Alan Trench of Devolution Matters has also suggested an alternative strategy, to permit the sort of "yes or no" referendum question which is being envisaged by many. Section 30 of the Scotland Act 1998 also allows the list of reserved matters set out in Schedule 5 to be amended by a form of subordinate legislation called, with a rather archaic, monarchical flourish, an Order in Council.  This would not require further, full legislation to bring about. I'm not fussed about the method, but would heartily welcome any concrete strategy for assuring the referendum avoids legal challenges, which is not just a resort to the arts of the bluffer and confidence-trickster, which the SNP are presently employing.

Given the inactivity from the SNP benches, and the lack of forthcoming amendments in either direction to rid us of the hopelessly obscure referendum question being advanced in Holyrood, I appeal to any other parliamentarian in the House of Commons who is not a nationalist but is keen for Holyrood to hold a referendum with a clear question. It is within your power to make possible, and probably isn't possible without amending the Scotland Bill to reverse Lord Sewell's apprehension of Holyrood's limited powers. If you want to ask the Scottish people "independence - yes or no?" - the Scotland Act will have to be amended. And if this is too important to leave to the SNP, might I suggest you do something about it?

“I’m forced to take a paper round”, admits top Scottish judge...

Although largely quiescent after the Holyrood election (caused, as I understand it, by a Newsnetesque split between the vision of its proprietor, Sir Wimple Stanley Whipsot and its editor, Ecclefechan Mackay MA), I'm delighted to be able to bring you a new cross-post from the North West's organ of record, the Kinlochbervie Chronicle. Although the Herald appear to have covered the same story about Lord Hamilton's concerns about the implications of the judicial pay freeze for the lifestyle and quality of the third branch of our government, and belief that our judges aren't being paid enough, for my money, the Chronicle does the tale more justice...

“I’m forced to take a paper round”, admits top Scottish judge

by Ecclefechan Mackay MA, Political Correspondent.

It has emerged today that Scotland’s top judge, Lord Hamilton spends his mornings and evenings delivering hundreds of newspapers a week, just to make ends meet. Appearing before Holyrood’s Justice Committee, the Lord President of the Court of Session told startled MSPs that he rarely gets more than four hours of sleep a night, forced to rise at “sparrowfart” to ensure his New Town neighbours get their daily fix of news and the Lord President has enough money to cover the bare necessities of the judicial life.

“I’m just about keeping our head above the water, but it is a real struggle”, an exhausted Hamilton told Scottish politicians between rounds. “When I hit the bench some mornings, I barely have the energy to listen to learned counsel. But I struggle on.”

Despite collecting an average salary of £187,624 a year – a figure that compares with £128,296 earned by sheriffs – Hamilton said the public sector pay freeze had given rise to “a number of problems, not least that my fellow High Court judges are forced to eke out a life on just nine times the average Scottish salary, while the situation of sheriffs is even more dire, earning only six times more than most Scots. It is intolerable that such a situation has been allowed to persist in a civilised country.”

Figures secured by the Kinlochbervie Chronicle reveal that every single judge  of the Court of Session undertakes some sort of casual work in the evenings and weekends, to top up their dwindling publicly-funded salaries. One Inner House judge admits “I’ve tried to do a bit of babysitting on nights, but it is difficult to get any work without a graduate degree, and even then, parents keep offering me unremunerated internships in “child custody”, with the promise of future, steady babysitting work when the economy upturns. I’m at my wits end, I really am”.

Lord Hamilton identified several “concerning implications” of the freeze, adding: “we were recently forced to appoint an illiterate Peterhead fishwife Sheriff Principal of Aberdeen in the absence of any other qualified candidate willing to struggle by on £128,296 a year. And I must say, I sympathise with many of those gentlemen who simply wouldn’t countenance it.” It is understood that Nanette Pirie, 63, will be retaining her wee morning cleaning job for a local office complex, to make up the shortfall in her judicial earnings.

Responding to Lord Hamilton’s concerns, the Joseph Rowntree Foundation have confirmed that they will be researching the phenomenon of judicial poverty in Scotland “as a matter of the utmost urgency”. Rowntree research director, Gary Streeting, said yesterday: “It is vital that we care for our older people and recognise the particular financial pressures judges are subject to. Increasing wig rates, powder tax, gown bills, the dry cleaning. There are a great many hidden costs for judicial appointees, and many of these people are simply too proud to admit that they are struggling financially”.

One senior lawyer who did not wish to be named, Bertie Bunkum-Smythe QC, told the Chronicle, “Our judges really are in an intolerable position. With increased alcohol levies and the parlous rate of inflation, the cost of claret has substantially increased in real terms, while judicial salaries have stagnated. A decent drop is not to be had for less than fifty, sixty pounds a bottle.” In legal circles, it is feared that judges will only be able to secure “cheaper, inferior vintages”, discouraging applications from the best and brightest candidates for Scotland’s top legal jobs.

“I’m not drinking any fucking merlot”, one senior QC confirmed.

YouGov: That latest independence poll in full...

Since May's Holyrood election, we've had a three polls on independence, with TNS-BMRB publishing the findings of their June and September polls on Scottish opinion on this testy topic, and Ipsos-MORI contributing a third poll, also in September.  Over the weekend, the Scotland on Sunday publishing the results of a YouGov survey, conducted over the 26th and 27th of October.  After a delay to allow the paper to get its money's worth, and to frustrate the amateur psephologist, the full tables are now were available here earlier today but appear now to have vanished in a reshuffle of YouGov's website.  The texture of the findings got rather more attention in the paper than is typical, delving beneath the topline, and pulling apart the overall picture to reveal the interesting, often neglected details across different demographic groups.  Ane Corbie has already cast her beady eye across the implications of the data along similar lines. In usual style, I thought it might be helpful and interesting for folk if the busy detail of the full table was reduced to its composite elements.

But first, the question. With options of "I would vote YES/NO/wouldn't vote/don't know", YouGov asked its 1,075 Scottish adults...

"The SNP wishes to hold a referendum on Scottish independence in due course. Voters would be asked whether they agree or disagree "that the Scottish government should negotiate a settlement with the Government of the United Kingdom so that Scotland becomes an independent state". How would you vote if such a referendum were held tomorrow?"

For a start, you'll recognise that YouGov are putting the ridiculously circumlocutory SNP question to would-be voters. The explanation for this wending legislative language isn't Alex Salmond's idiosyncratic and unaccountable preference for the language of negotiation, but entirely dervies from the legal problems dogging the Holyrood referendum, on which I have now bored for Scotland, most recently here. By contrast, the two other pollsters who have recently generated findings on attitudes to independence phrase their questions rather differently. Jettisoned is the talk of negotiation. Instead, Ipsos-MORI asked:

"... whether you agree or disagree with a proposal to extend the powers of the Scottish Parliament to enable Scotland to become an independent country, separate from the UK." 

While TNS-BMRB enquired of its informants...

"The SNP have outlined their plans for a possible referendum on Scottish independence in the future. If such a referendum were to be held tomorrow, how would you vote?"

However, the talk of negotiation recurred in the answers TNS-BMRB solicited from its respondents, with folk being invited to take a view on whether or not they agreed that "the Scottish Government should negotiate a settlement with the Government of the United Kingdom so that Scotland becomes an independent state."  Inquisitorial differences aside, last Sunday's YouGov poll generated the following findings:

How would you vote if such a referendum were held tomorrow?" (total)

• Yes ~ 34%
• No ~ 52%
• Wouldn't vote ~ 3%
• Don't know ~ 12%

And the gendered profile...

How would you vote if such a referendum were held tomorrow?" (men)

• Yes ~ 41%
• No ~ 50%
• Wouldn't vote ~ 2%
• Don't know ~ 6%

How would you vote if such a referendum were held tomorrow?" (women)

• Yes ~ 27%
• No ~ 54%
• Wouldn't vote ~ 3%
• Don't know ~ 17%

Just like May's election, these figures clearly imply that a strategy to connect with female voters will be absolutely vital, if the referendum is to be carried off for the nationalist opinion. Female support for independence lags a stonking 14% behind their male fellow citizens, while their opposition is 4% points higher. On the brighter side, there are more women to be convinced than men, with only 6% of gentleman -  apparently careful to project a robust appearance of decisiveness - willing to avow indecision about independence at this stage, while indecision amongst female respondents ran a mighty 11% higher.  As Kate notes in her piece, it seems eminently likely that it will be easier to sway waverers towards independence than invert existing preferences, turning opposition into support. It is to women, then, that the advocates of independence must particularly attend. Thirdly, we have the social gradings...

Middle class (ABC1)

• Yes ~ 31%
• No ~ 56%
• Wouldn't vote ~ 1%
• Don't know ~ 11%

Working class (C2DE)

• Yes ~ 36%
• No ~ 48%
• Wouldn't vote ~ 3%
• Don't know ~ 13%

Data is also given on how respondents would vote, based on their Westminster, Holyrood constituency and Holyrood regional voting intentions. I don't proposed to comprehensively examine these - if interested you can look for yourself. There are a couple of curiosities however, that I thought I'd flag up. Firstly, YouGov found no more than 49 respondents out of 1075 who intended to vote Liberal Democrat - some 3.6% of their sample considering that Tavish Scott managed a mighty 7.9% and 5.2% in the most recent Holyrood election. We might be cautious, therefore, about reading too much into the surprising topline statistic that 21% of the 39 Liberal voters for Westminster supported independence.

Finally, a word on age. Of late, would-be LOLOTSP ("Leader of Labour outside the Scottish Parliament") Tom Harris has been suggesting that the Nationalists' desire to emancipate sixteen year olds to vote in the referendum represented a perfidious scheme, cozening independence and fixing the result by sheer democratic malice. The Maximum Eck has talked about the "independence generation", while Peter Murrell's Your Scotland, Your Future website is fronted, at present, by a saltire-bearing bairnlet. Interestingly, YouGov's findings don't present such a stark differential in support for independence on the basis of age, but decidedly records hardening hostility as respondents grow older. 

Support for independence (by age)

• 18 - 24 year olds ~ 36%
• 25 - 39 year olds ~ 30%
• 40 - 59 year olds ~ 37%
• 60+ years old ~ 31%

As you can see, at least in this poll, middle-aged folk are the most supportive group, while the most ancient cohort were a smidgeonwise more positive about the proposition than those between twenty five and thirty nine years of age. Realistically, nothing can be read into such small deviations, but the findings do at least suggest that Tom Harris' fears of the young aren't built on strong data presently in the public domain. Chances are, only the SNP are presently in the position to engage in that sort of polling, and their findings are unlikely to find the light of day. Now compare this with opposition to independence by age across the same four groups...

Opposition to independence (by age)

• 18 - 24 year olds ~ 46%
• 25 - 39 year olds ~ 50%
• 40 - 59 year olds ~ 51%
• 60+ years old ~ 57%

Contra Alex Salmond's invocation of "the independence generation", perhaps Harris et al should start talking up "the Unionist Generation" - the youngest and freshest spirits of this vintage being laid down by 1951, children and teens of the 1960s and none-too swinging-things of the 1970s?