29 January 2012

KC: "Bosoms to 'drastically downswing' in independent Scotland..."

Are we going to experience an exodus of loincloth magnates? Today, the Sunday Times report that "Scottish lingerie tycoon Michelle Mone has threatened to move to England if Scotland votes for independence." Unfortunately, this does not seem like an isolated development. Reading the Mone story this morning, I was struck by its similarity to this piece from the Kinlochbervie Chronicle earlier in this week. I repeat it for your interest and concern. Pro-nationalists, keen on underpants vendors, lament...

Bosoms to "drastically downswing" in independent Scotland
Ecclefechan Mackay (MA), Political Correspondent

Kinlochbervie frontless-backless-strap tycoon Michael Moan has today threatened to move to England if Scotland votes for independence. Mr Moan, co-owner of BDSM Subnational and creator of lingerie brand Croccelesso told the Chronicle he feels his business could not survive in an independent Scotland as "everything would go tits up". "It would murder my market", Moan insists, adding that he would "impersonally" move his company to Berwick and "wouldn't sling a scabby thong over the border" if Scotland became independent.

Moan's comments have been seized upon by Unionist politicians, who argue that they make the "positive case for the Union". The SNP has traditionally struggled to attract the support of what one party insider called "the traditional, West Central Scotland sag-teated demographic". It is understood that serious concerns are being expressed in private among senior Nationalists about the party's level of support amongst aubergine-chested women susceptible to further "subsidence". Pro-Union forces hope to capitalise on this weakness and seize back the political momentum from Alex Salmond.  A senior strategist in the emerging "No" campaign said "all the polls show that the SNP are and will struggle to convince women to support independence. It is now becoming clear that a vote for separation is a vote for terminal udder slumpage. Moan's intervention is seriously bad news for the First Minister."

Appealing to female voters to "reject separatism", Scottish Liberal Democrat leader Wallie Ronnie added "The SNP not only want to separate us from the UK, but to separate Scottish women from the pert mammaries which only the Union's frilly undergirding can secure. It is absolutely right for Mr Moan to point out this elementary fact."

In Kinlochbervie today, is understood that sales of Moan's lingerie lines have exploded, with concerned teuchters "stocking up" in response to the tycoon's promise to leave the country. Speaking outside the post office and clutching ten pairs of "Midnight Fantasy" double laced halterneck brasiers, Jeanie McFadyen, 58, expressed mounting concerns about the implications of independence for her thorax. "Would you support it if you knew it meant you'd have to drag your bosom through the gutter every time you try to nip out for a pint of milk?"

"The way my bust is going, by the time 2014 comes around my nipples will be so squint, on a dark night you could mistake my tits for Marty Feldman."

28 January 2012

Carloway "eviscerated"?

The Firm described it as an "eviscerating assessment". Understandably bedazzled by the Scottish constitutional developments of the last few days, most of you may have missed that Holyrood's Justice Committee came to some preliminary conclusions on the Carloway Review this week, set out in this letter to Kenny MacAskill from their convenor, Christine Grahame.  If it is an evisceration, the disembowelment is discreetly done, and to my eye, the letter reads more like a reflection of a range of reactions to a particularly controversial recommendation among generally uncontroversial recommendations, than a concerted disentangling of the Carloway Report's guts. Grahame notes that the Committee's brief investigation intended:

"...to obtain a “snapshot” view of interested parties’ initial reactions to Lord Carloway’s recommendations, rather than to conduct a full-blown inquiry. This letter is the outcome of that work".

Given immediate reaction to Carloway's proposals when they were published - focussing almost entirely on his controversial proposal to eliminate corroboration - it isn't wholly surprising that he Committee's "snapshot" reveals an array of leery legal phizogs, critical of Lord Carloway's blunt conclusion of November that...

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.

Committing 1,281 of the letter's 3,246 words to issues of corroboration, the letter reflects a critical assessment of Carloway's conclusion, both in terms of the substantial issues, and the research informing them. Arguments relayed include the idea that corroboration is an important "evidential quality control" and shield against miscarriages of justice, to concerns that Carloway's recommendation to abolish corroboration ignored wider context of Scottish criminal procedure. For example, not researched and not discussed in detail were questions of jury rules. In England, without corroboration, juries vote by qualified majority to convict and acquit, requiring ten of twelve jurors to decide the case. In Scotland, conviction is by bare majority of juries of fifteen - and if there is not a majority for conviction, the accused is simply acquitted. Not to consider these issues, and speedily to propose the elimination of corroboration, would be profoundly risky, promoting decision-making structures insufficiently protective of the rights of the defence, and of persons accused of committing crimes.
    It is fair to say that the Justice Committee hasn't endorsed Carloway's blunt conclusion, and is clearly sympathetic to the idea, advanced by the Faculty of Advocates, that corroboration ought to be further examined, explored in the context of broader criminal procedure, potentially by a Royal Commission. Grahame writes:

    "Lord Carloway is to be congratulated for having provoked a much-needed discussion on the purpose of corroboration. The question now is how best to continue that discussion, and in which forum."

    That the discussion ought to continue is taken as axiomatic. For what it's worth, I think the Committee and the critical voices quoted are right in a range of important respects. While I'm sympathetic to the idea of eliminating corroboration, it is clearly a principle which structures the behaviour of a whole range of official legal actors - policemen, prosecutors, judges, appellate review of convictions - and interacts with jury voting rules and the power of judges to repel cases, refusing to put them to juries ("no case to answer").  Not to consider these aspects, and to accelerate into full repeal of corroboration without further analysis seems distinctly unwise. The Justice Committee emphasises the:

    "... importance of ensuring that any future work on corroboration should avoid considering that single issue in isolation. Instead, it should also take into account the complex web of factors that, taken together, set the current balance between the state’s ability to secure a conviction and the individual’s right to a fair trial, and to be acquitted where there is a reasonable doubt. Witnesses suggested that this might include not only rules on the admissibility, quality and sufficiency of evidence, but also, for example, the not proven verdict or the availability of convictions by simple majority verdict. They also underlined the importance of studying other jurisdictions, building on the comparative work already undertaken by Lord Carloway. Some witnesses proposed taking the opportunity to “future-proof” our laws and practices to reduce the risk of future ECHR referrals. In short, these witnesses argued, all relevant matters should be on the table.

    That said, one wonders if Carloway may be a bit miffed. The Review was pulled together pretty quickly after the Cadder judgment of the UK Supreme Court on the 26th October 2010.  Carloway's appointment was announced on the same day, while his agreed terms of reference were published on the 18th of November.  The two crucial sections of Carloway's remit were:

    (b) To consider the implications of the recent decisions, in particular the requirement for 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 (my emphasis).
      Given the time-frame of his Review, and my understanding of the limited number of personnel committed to the enterprise, it was always going to be tricky for Carloway to address the corroboration question posed by the Cabinet Secretary for Justice in a comprehensive fashion. Indeed, his terms of reference specifically steered him towards thinking about corroboration in terms of the implications of Cadder, which I've blogged about before. Given these limitations, you get the impression that critics' major objection to the report has been to the categorical robustness of Carloway's conclusion on corroboration, which sits uneasily beside the limits of his research, suggesting that a more circumspect conclusion in this branch of his report was indicated. 

      To describe it as an "evisceration" seems overspicy, but certainly, the Justice Committee have contributed to the forces vitiating against speedy legislation to "knock out this pillar of Scottish criminal procedure", as some have rather grandly put it. More generally, it seems to me that the Committee is simply doing its job: cataloguing reactions to concrete proposals, testing feelings, identifying areas where our knowledge is imperfect, and ought to be improved, before making a final decision to head north or south, to reform or retain the status quo. Why must every disagreement or difference of opinion be given a yah-boo slant when reported, slating x, y or z? Late last year, I wrote this blog about questionable claims being made about rape conviction rates under new Holyrood legislation. This was picked up by the folk of the Express and - heaven help me - the Daily Star, who awarded me a doctorate, and headlined their report "Boffin blasts SNP".

      Surely if we are going to engage in collective deliberation, commission reports, solicit evidence and work up informed opinions - treat them as part of a conversation rather than chipped in unbreakable tablets - we have to be rather less Manichean in our outlook, where proposals must be triumphantly adopted in whole or end up being slated as abject failures if they prove predictably controversial in part.

      25 January 2012

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

      Kinlochbervie Chronicle: Scots gold "worthless", experts claim

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

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

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

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

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

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

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

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

      23 January 2012

      Cameron "takes his case to Strasbourg..."

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

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

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

      22 January 2012


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

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

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

      19 January 2012

      Devolution-max: SNP consolation prize or political hammer?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

      15 January 2012

      Glasgow MSPs on same-sex marriage Vol II.

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

      Drew Smith

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

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

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

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

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

      Kind regards,

      Drew Smith MSP

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

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

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

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

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

      Once again thank you for getting in touch.

      Humza Yousaf MSP
      MSP for Glasgow

      13 January 2012

      Is "the thistle of Scottish political drama" flourishing?

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

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

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

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

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

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

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

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

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

      10 January 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

      6 January 2012

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

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

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

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

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

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

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

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

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

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

      4 January 2012

      Michael Moore's Machiavelli impression?

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

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

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

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

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

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

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

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

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

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

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

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