19 May 2012

Langside, recounted...

Tuesday's recount of the local election result in Glasgow's Langside ward produced no drama.  As predicted, when the contents of ballot box 139 was added to the rest of the votes cast in the ward, the Green's Liam Hainey kept the Glasgow Council seat he was first elected to on the 4th of May.  After a few days footering, the Council have now released the full recount data for the ward, including the previously neglected Battlefield votes.  For completeness, I've totted these figures up into a new, revised Langside chart.  To make drawing comparisons more straightforward, I've also attached the original calculation in the ward, to be followed by a breath or two of commentary from me.

And the original Langside result:



For the SNP to snatch the seat back the third seat in the recount was always going to be tricky, but as you can see, the Greens actually won more comfortably when the Battlefield ballots were included. Wild speculations about what might have happened if Battlefield proved an unexpected Liberal Democrat haven proved wildly far of the mark.  Paul Coleshill for the Liberals polled only 7% of first preferences in the additional box of papers, effectively ending any chance they might have had to eliminate the Greens in the sixth round of the allocation. Like many SNP candidates across the city, Hewetson suffered for his alphabetical placing on the ballot paper, disadvantaging him against Hainey in subsequent rounds...


The other first preferences added to the recount calculation were spread as follows:

One factor which might have weighed against the Nationalists was the increase quota. If Susan Aitken's first preferences didn't keep pace with the increases in the quota, her running mate Hewetson would find fewer surplus votes tacking his way.  In the event, this didn't materialise, and Aitken's first preference support increased more than the quota for election increased, as did Labour's Archie Graham's.  The Greens were greater beneficiaries of Labour surplus transfers (taking 149 votes to the SNP's 81), however, putting them just ahead of the Nationalists on the second round of the recount.  With Aitken's transfers reallocated, Hewetson soon clawed back that lead, albeit with a narrower advantage than he'd enjoyed on the first calculation of the results.  By round six, the Greens had entirely closed the gap, and were eeksie-peeksie with the SNP. In the seventh round of the original allocation, which saw the Nationalist eliminated, he trailed the Green candidate by 121 votes.  In this recount, by round seven, Hewetson was 174 behind.  Not a palatial margin of victory for Hainey, but certainly a more comfortable one than he enjoyed in the initial declaration.

Sighs of Green relief all round.

17 May 2012

Can Holyrood repudiate the UK Supreme Court's civil jurisdiction?

I've written before about how the creation of the UK Supreme Court in 2009 was an opportunity taken by the new Unionist stylists to promote a novel judicial imagery of an enduring United Kingdom. Evicted from their scarlet seats in the House of Lords, the law lords sitting in the new Court set up in Middlesex Guildhall needed fresh symbols and seals for their new institution. The options before them were manifold. They might have depicted blindfolded Dame Justice, or the book of the law, and swords and scales like the European Court of Justice. They might have eschewed these conventional signs altogether, and taken inspiration instead from the Canadian Supreme Court which employs a simple "CS" style, like the French Cour de Cassation, or like the Americans, emphasise already familiar national imagery, with a modified version of the instantly recognisable arrow and laurel wielding bald eagle, replete with stars and stripes. 

In the event, the Union flag was passed over, as were the more regal and heraldic adornments of the Royal Courts of Justice or the Court of Session.  Instead, the new UK Court crest combined the mingling roots of a rose, a thistle, a leek and a flax flower, united in an everlasting circle under the Crown.  The logo of an important but obscure public institution obviously cannot command popular commitment to continuing union, but it buttresses the wider project.  Interestingly, however, it occurs to me that the Constitutional Reform Act 2005 might now present a political opportunity for Nationalists seriously to loosen the thistle that looks so firmly planted there. 

I have an evil plan. Or at least a devilish cunning one. I doubt that the failure of the Civil Appeals (Scotland) Bill in 2006 was a major or memorable political moment for many of you. A private member's Bill introduced to Holyrood by Adam Ingram of the SNP, it proposed to end civil law appeals from the Court of Session to the Judicial Committee of the House of Lords as was, whose jurisdiction has now been assumed by the UK Supreme Court. Had it been successful, Ingram's law would have ended a centuries old right of appeal from Edinburgh to London.

My argument is simple. If the SNP government wants to, there seems to me to be a very strong argument that it is now within Holyrood's legislative competence unilaterally to cut Scots civil appeals to the new UK Supreme Court. The general aims of Ingram's Bill can be revived, and with the aid of the government's majority in the chamber, should be perfectly realisable, if there is a will to it.  While the main inter-institutional controversies during this parliamentary session have concerned the UK Court's jurisdiction to hear and decide Scottish criminal appeals on human rights grounds - which Holyrood is powerless to prevent - a close read of the Scotland Act suggests reform of the Court's civil jurisdiction would now be perfectly intra vires.

So why did Mr Ingram's Bill fail in 2006, and what has changed in 2012?  Under the provisions of the Scotland Act 1998, before any Bill is introduced in Holyrood, the Presiding Officer must declare that the Bill falls within the legislative competence of the parliament (§ 31(2)). In the case of the Civil Appeals Bill, George Reid found that its provisions were not within the parliament's competence. His view, based on legal advice, is rather densely set out here.  He noted:

"... the reason for this view is that in my opinion these provisions relate to the Constitution. The Parliament of the United Kingdom, including the judicial functions of the House of Lords, is reserved under paragraph 1(c) of Schedule 5 to the Scotland Act 1998. Section 29(2)(b) of the Scotland Act 1998 states that a provision is outside the legislative competence of the Parliament if it relates to reserved matters..."

Frazer McCallum explained this in rather more comprehensible terms his SPICe briefing of the 16th November 2006...

"The primary reason advanced by the Presiding Officer for his view on legislative competence relates to the fact that the Bill seeks to amend the judicial functions of the House of Lords. It does this by seeking to end the power of the House of Lords to deal with Scottish appeals. Thus, it is argued that the Bill is effectively seeking to amend some of the functions of the United Kingdom Parliament. Paragraph 1(c) of Schedule 5 to the Scotland Act 1998 provides that the United Kingdom Parliament is a reserved matter and thus would not be within the legislative competence of the Scottish Parliament. When the relevant provisions of the Constitutional Reform Act 2005 are in force, the jurisdiction of the House of Lords in Scottish civil appeals will transfer to the new Supreme Court. The Supreme Court will not be part of the United Kingdom Parliament. Any future proposal in a bill which sought to remove the possibility of an appeal to the Supreme Court would have to be closely scrutinised as regards legislative competence."

Quite so. And not such an esoteric subject now, is it? Due to George Reid's legal reasoning, the civil appeal to the House of Lords, and subsequently the UK Supreme Court, continued and continues to this day. Yet in our times, with a majority of Nationalists in Holyrood, issues of jurisdiction - usually the dry preserve of the legally curious - have taken on a much more political complexion.  And vitally, the objections which proved fatal for the measure in 2006 no longer obtain. To my eye, the UK court looks to have little legal defence against a Nationalist parliament, minded to repudiate its capacity to make learned disquisitions on Scots civil law. And here's why.

General powers reserved to Westminster are set out in Schedule 5 of the Scotland Act 1998. First to appear under this heading is "the Constitution". However, despite their "generality", the terms of the constitutional reservation are quite specific, reading as follows...

1. The following aspects of the constitution are reserved matters, that is—
  • (a) the Crown, including succession to the Crown and a regency,
  • (b) the Union of the Kingdoms of Scotland and England,
  • (c) the Parliament of the United Kingdom,
  • (d) the continued existence of the High Court of Justiciary as a criminal court of first instance and of appeal,
  • (e) the continued existence of the Court of Session as a civil court of first instance and of appeal.

Thanks to the approach to devolution taken by Donald Dewar, the Scotland Act 1998 grants such powers to Holyrood as are not explicitly reserved to Westminster. Thus, for example, Holyrood found climate change within its legislative competence, and enacted accordingly. The language of this section seems to me to be eminently clear. By stating that "the following aspects of the constitution are reserved" - and naming five reserved subjects - the language of the Scotland Act explicitly recognises a category of constitutional issues that are not reserved and are thus within Holyrood's legislative competence. Adam Ingram's Civil Appeals Bill failed because the Judicial Committee of the House of Lords, as was, sat as part of the Parliament of the United Kingdom. No longer. Under the Constitutional Reform Act of 2005, the UK Supreme Court was founded - and the Law Lords packed up their worldly goods and crossed the road to the Court's new home in Middlesex Guildhall.  And critically, they left their reserved protection behind them.

The key question is this. If the UK Supreme Court is no longer part of Westminster, and thus no longer subject to the specific constitutional reservation under Schedule 5(1)(c) of the Scotland Act, how could Holyrood be prevented from ousting their civil jurisdiction? Is the civil jurisdiction of the UK Supreme Court still a "reserved matter"? I think there is a strong argument that it is not - and it is thus within Alex Salmond's powers, substantially to diminish the Court's jurisdiction. Or at least, to give it a brave and politically pungent go.

What construction of the legislation could prevent Holyrood from doing as it pleased and eliminating Scottish appeals? It would require, I think, an artificial reading of Schedule 5's specific constitutional reservations, and the reading in of a much broader idea that "constitutional issues" not specifically enumerated in the Scotland Act can attract the same "reserved" character and protection from amendment by Holyrood as those explicitly given - Crown, Union, Parliament and so on.  As I've already argued, however, the language of the Scotland Act does little to commend this statutory construction. Talking about "aspects of the constitution being reserved" seems explicitly to accept there are some aspects of the constitution which are devolved to Holyrood.

Alternatively, you might try to argue that the UK Supreme Court inherits not only the House of Lords' judicial jurisdiction, but also some implicit "reserved" protection under the Scotland Act.  If that line of contention looked forlorn, you might delve into the old statutes to try to recover and put to work some ancient claim about "fundamental constitutional rights" to review in London of decisions made by Scottish civil courts. You might get up on his hind legs and lend your lungs to it - but I don't see any evidence in the text of the law which supports the proposition that Holyrood's legislative competence should be curtailed in this manner.  Ironically enough, if it became a point of litigation, it would fall to the UK Court to assess the extent of its own jurisdiction, and the Scottish Parliament's ability to change it.

Equally significantly, the UK government and parliament made no attempt in its new Scotland Act 2012 to amend Schedule 5 in this respect (and I kept schtum during their deliberations, lest they be inspired to do so), while the Constitutional Reform Act made no amendment to the Scotland Act, nor any reference to the UK Supreme Court as "constitutional" inheritor of the parliamentary reservation which stymied Ingram's efforts in Holyrood's second session. To have included such a phrase would be straightforward, amid all of the other changes affected by the 2005 Act, but instead, it only provides that... 

"... an appeal lies to the Court from any order or judgment of a court in Scotland if an appeal lay from that court to the House of Lords at or immediately before the commencement of this section" (Constitutional Reform Act 2005 § 40(3))

Let's not get ahead of ourselves.  There are likely to be complexities. Indeed, I expect that a truly horrifying list of enactments contain some reference to the jurisdiction of the UK Supreme Court - and some of these issues may well "relate to reserved matters" under the Scotland Act for other reasons. It is proper, joyless lawyer's work. Yet given the political background, given the SNP's majority in Holyrood, the party's vexation with the UK Court's jurisdiction and the desire to make such jurisdiction as the Court retains as exceptional as possible, revisiting the Civil Appeals Bill strikes me as an obvious wheeze. It doesn't even call for jiggerypokery. Read Reid's reasoning. On the simplest construction, the underlying legal situation which vetoed the legal competence of the Bill in 2006 no longer obtains, and the Court now looks very vulnerable to Scottish reforms aimed at minimising its judicial sway. This thistle's roots aren't nearly as deeply planted in our constitution as the Supreme Court's artists clearly hoped.

15 May 2012

Recounting Langside...

What a palaver.  Twelve days after the election, and eleven after the results were formally declared, today the voters of Langside ward in Glasgow will finally find out who their third councillor ought to be. The initial allocation saw one councillor apiece elected for the SNP, Labour and the Greens, but that calculation was based on a blunder, which left the contents of box 139, from Battlefield Primary School, uncounted.  The whole calculation will be rerun around 4.00 o'clock this afternoon.  But will it make any difference? According to the Returning Officer:
"The exact number of ballot papers in the box is not known at this time, however 385 papers were recorded as having been issued by the Presiding Officer at the Polling Station."

For argument's sake, take that 385 figure. What difference can it make? None to the first and second councillors allocated seats. Even without the contents of the overlooked ballot-box, both Susan Aitken (SNP) and Archie Graham (Labour) comfortably overshot the ward quota.  While the Langside quota will increase slightly with the addition of new votes (being calculated by the total number of votes cast ÷ the number of seats available in the ward + 1) and adding 1, this wouldn't be nearly enough to deprive either candidate of their first preference wins. Assuming that 385 ballots are added to the ward count, the quota will only increase from 1621 to 1717, well short of both Aitken and Graham's current level of support, even without the extra ballots in their favour we can expect to find in ballot box 139.  

By contrast, the Greens' Liam Hainey looks to be on a far shooglier peg.  As we saw in my earlier coverage, the race for Langside's third and final council seat was an exceedingly close run thing, with Hainey only edging out the SNP's Alex Hewetson in the seventh round of the allocation, and only just.  The margin of Hainey's victory was 1179.66035 votes to Hewetson's 1058.58476, the result of stronger Liberal Democrat transfers to the Greens on their elimination. With only an additional 385 votes in the mix, Greenies might be feeling very quietly confident about this 121 vote margin over the Nationalists. It may well be squeezed, but they need only be a single vote ahead of Hewetson in the last round of the calculation to keep their Langside win.  

What's more, unless Aitken's (SNP) support keeps pace with the increased quota, this will have a deleterious impact on the surplus she has to cascade across to her running mate, and so weaken his level of support in the vital six to eighth rounds of the allocation. It may well be, for example, that the Greens are able, Aitken's surplus cut, to outpoll Hewetson by the fifth or sixth count, rather than sneaking ahead in the seventh, confirming their leading position. But for this intra-party support from Aitken to Hewetson, the SNP weren't exactly raking in the transfers from eliminated Glasgow First, Anti-Cuts and Tory candidates in Langside in the early rounds. Alternatively, if Battlefield polling station proves an uncharacteristic hive of Nationalism, Aitken may enjoy an even greater surplus to transfer, so grinding down and imperilling that not-quite comfortable Green lead.

But since we're running counterfactuals, count six looks to be potentially important too.  Remember, in a round where nobody has attained the requisite quota for election, the lowest performing candidate is eliminated, whatever winning share of transfers they might have attracted had they subsequently remained in the race.  Now cast an eye back over the sixth round.  The Greens, Liberals and SNP are still in contention for the third seat.  Without the 385 additional ballots, the second SNP candidate leads the Green by 35 votes, and the Green the Liberal Democrat, Paul Coleshill, by 87 votes.  

Overcoming this lead may be a tall order for Coleshill, who was a sitting councillor in Langside going into this election, but if the Battlefield ballotbox contains an atypically robust Liberal Democrat vote, or even an increased Tory vote, more likely to transfer on to the Liberals than the Greens, it is just conceivable that the Liberals could close that gap, and the Greens could face elimination in the sixth round, rather than election in the eighth. The strong Liberal transfers which secured them the initial appearance of a win would all be as nought. 

It is all rank speculation, of course, but firmer answers - and hopefully a new charting for the ward - should emerge at some point this afternoon.  My tentative prophecy: the Green win confirmed.

7 May 2012

Shettleston, Baillieston & North East... (Vol VII of VII)

Journey's end!  Having trod through Glasgow, south to north and west to east, we come to the end of our traipse through the electoral landscape sculpted by the voters last Thursday.  I hope that it has been an instructive and interesting enterprise, whatever your political hue. For those less keen than I am on pilgrimages into the micro-life of wards, I can only reassure you that this is my second-to-last post dominated by spiking graphs, and the STV language of quotas, surpluses and transfers, and the ordinary course of commentary will shortly be restored.  Main my goal was to put this information in an accessible form in the public domain.  

Councils do so, and credit to them, but as the European Court of Human Rights likes to say, for a right to be worth the candle, it must be "practical and effective, not theoretical and illusory".  Practical and effective access to the cogs and wheels of the STV is what I've tried to promote here.  While sometimes the electoral system's operations can seem abstruse and intimidatingly technical, reduced to a few principles of depiction, I don't see why any soul with their head screwed on shouldn't be able to make good sense of it.  It can't be right that the only people given a fair whack at understanding how the results happened are heid neeps locked in the vaults of party political offices, who for intelligible reasons, may not be too enthusiastic about sharing explanations for their successes and failures with the public at large.

Finally, I should say that the suggested commentaries sketched after each ward are very much open to interpretation and argument.  This, I very much welcome.  All that said, to our final three wards: Shettleston, Ballieston and the very last - North East.

19.  Shettleston
Elects four councillors.
2007 result: 3 LAB, 1 SNP.
Result in 2012: 3 LAB, 1 SNP (No change)



Our last post concerned the watery environs of Canal.  Straying eastward, we enter into what can seem a polarised electoral desert, occupied only by candidates in red rosettes scrapping with a smaller band of scavenging Nationalists.  All three of the wards we're examining here are essentially direct conflicts between the SNP and Labour, with little in the way of third and fourth party support to make transfers a major force in the allocation.  

For that reason, if the Nationalists were in serious contention with Labour across Glasgow (rather than reaving for unattended Green and Liberal votes), we'd expect the the four-councillor ward of Shettleston to be the site of a serious dust up.  Despite some encouraging signs in the vote the SNP received, it simply didn't materialise.  A familiar face headlines the Labour bill in Shettleston. Frank McAveety, booted out of Holyrood in 2011 by John Mason.  He achieved well-over quota in the first round, as did George Ryan (LAB) (albeit by a very slim margin). Neither SNP candidate did so, though compared to some wards, the vote share achieved between the Nationalists in Shettleston might have put them both in contention, and put serious pressure on the third Labour candidate, but for McAveety's substantial transfers. 

The Labour field exhausted, the fourth baillie was always going to be a Nationalist, and John McLaughlin won it over Adam Miller easily.  Since we've keeping an eye on the transfers, Shettleston represents another success for the SNP, coaxing its voters to keep with it.  On his elimination, Miller transferred 810 of his 1009 votes across to McLaughlin, pitching him over the threshold of the quota.  All in all, no cigar this time around for Shettleston SNP, but promising signs for the future, on balancing the vote between candidates, and encouraging their folk to transfer.  For an indication of what this might look like, we need only look into our next ward...

20.  Baillieston
Elects four councillors.
2007 result: 2 LAB, 2 SNP
Result in 2012: 2 LAB, 2 SNP (No change)



As those of you who took at look at this post before the election will already know, Baillieston was where Glasgow SNP first dipped their toes in the water of multiple party candidates standing in a multi-member ward.  While in 2007, the SNP ran only one candidate in every other ward in the city, here they tried their luck at two - and won them - beating the third Labour candidate to take the fourth seat in the ward.  Accordingly, Baillieston in 2007 represents an important example for Nationalists standing other areas in the city in direct contests with Labour, running three candidates.  Interestingly, this time around, Labour only stood two candidates in Baillieston, effectively conceding the second seat won by John Mason and David McDonald in 2007.  By way of contrast with 2012, and to jog your memory, here was how the allocation worked in the ward in 2007:

You'll notice that in 2007, the SNP double win was in great part down to the sheer strength of John Mason's support, and the effective transfer of his large surplus across to his running-mate.  Absent Mason's "personal vote", what changed for the SNP in Baillieston this election? Interestingly, this time around, the leading candidate's surplus was of significantly less importance than 2007.  Both Austin Sheridan and David Turner achieved first preference votes putting them close to the ward quota for election of 1597.  While Mason and McDonald's vote split had been comically lopsided in 2007 (93% and 7% of SNP first preferences respectively), Turner took 54% to Sheridan's 46% in 2012.  Turner only exceeded the quota by 18 votes, so wasn't able much to assist Sheridan towards victory.  That said, however, Sheridan took fifteen of the votes going, indicating that over 80% of ballots successfully transferred between the two Nationalists.

21.  North East
Elects four councillors
2007 result: 3 LAB, 1 SNP
Result in 2012: 3 LAB, 1 SNP (No change)




And finally, the apogee of the polarised logic of politics in the east end of Glasgow, the North East allocation was the briefest and most decisive of the lot.  Disdaining a long count, and roll of eliminations and tiny transfers, the people of Glasgow North East elected three council candidates on the first count: Gerry Boyle for the SNP, and Maureen Burke and Gerry Leonard for the Labour Party.  That left only a single seat to fill, and in a single bound, Sohan Singh snapped it up, on the back of substantial transfers from Burke, which catapulted him instantly over the quota.  

Because of the terseness of the allocation process, we can't say much about where transfers might have been made here, beyond remarking that Nationalists wish to make progress in the North East of the city, they will have to rely on their own brute electoral strength, rather than sooking up transfers from more sympathetic fellow-travellers whose first and second preferences are for other political outfits.