Aidan Burley MP's alternative Olympics ceremony...

It seems that Tory MP Aidan Burley didn't terrifically enjoy the Olympics opening ceremony.  It was, he said, "the most leftie opening ceremony I have ever seen - more than Beijing, the capital of a communist state! Welfare tribute next?".  Relief soothed him as the dancing and performance gave way to the sports folk. "Thank God the athletes have arrived," he said. "Now we can move on from leftie multi-cultural crap. Bring back red arrows, Shakespeare and the Stones!" Tush and fie. 

That said, I understand the MP is something of a frustrated impresario, and his snarky observations may have more to do with personal pique than political prattery. According to a few well-placed sources, Burley attempted to collar Danny Boyle no fewer than five times as the multi-million pound event was being put together, with suggestions for additional and amended scenes to make the spectacle truly memorable, articulating an idea of Britain, its history and future which all right-thinking subjects of Her Majesty ought to be able to get behind.  Unfortunately for Burley, every single one ended up on the cutting-room floor.  I really can't see why.  They all sound spiffy to me.

Instead of depicting The Empire Windrush, which brought a large cohort of West Indians to London after World War II, a large mock up of the Belgrano would flee from an advancing regimented battalion of Margaret Thatchers, sitting in tanks.  Suspense builds until the unit of Thatchers cry as one "Take them!". Every military drum band in the country hammers, fierce. The tanks' turret-mounted cannons sound in a single volley, and the Argentine ship explodes in a festival of colour and noise. The military bands surrounding the stadium pipe up "Rule, Britannia!"

The Dark Lord Voldemort, the Childcatcher and Peter Mandelson erupt from the ruins of the smashed vessel.  Rather than being chased away by Marys Poppins, the lithe Thatcher-dancers leave their tanks, and to the stains of Land of Hope and Glory, invest the wicked wizard and cronies with peerages. Peeling Union jacks from the tanks, the Thatchers form the vast ermine and scarlet drape of Baron Voldemort of Hogwarts' cagoule of state. The scene evaporates to the joyful strains of Elgar's Nimrod, as social comity is restored.

The stars of the hit West End show Warhorse re-enact the Peterloo Massacre, with real Mancunians bussed in to London play the victims of the vicious dragoons, to be accompanied to the strains of Jona Lewie's festive "Stop the Calvary".  David Cameron to make an impromptu guest appearance as the ruddy-faced but incompetent cavalry officer in charge.

Post-boxes rise from the floor, and a host of ladies dressed in 19th and early 20th century costume dramatically lob mysterious packages into them.  In a single burst, each box explodes sending multicoloured streamers of paper arching across the stadium.  The lighting: sepia, period. Music: After the Ball. A crowd of excited punters, waving papers form into a disorderly cheering mass behind the Olympic hillock (decorated with the Tyburn tree, the dead Oliver Cromwell, played by Hugh Grant, hanging from its branches).  

The suffragettes link arms, and form a line blocking the opposite half of the stadium.  The Epsom Derby. National treasure Stephen Fry, dressed as George V, ostentatiously crowns a pantomime horse - played by Nicholas Soames and Prince Andrew, the Duke of York. Emily Davidson (here represented by Dame Judy Dench) breaks out of the suffragette line and intercepts the cantering horse - and is run down in a dramatic explosion of hoof-gouged gore. For a splash of that British sense of Humour George V (Fry) to recite Shakespeare's lines from the final Act of Richard III: "A horse, a horse, my kingdom for a horse!" All cheer and the tableau evaporates.  

A Larkrise to Candleford scene, a rural idyll of pastoral England.  Overworked children wearily pull at the teats of cows, and bail hay. Stuffy ladies find themselves caught up in suffocatingly safe emotional predicaments. A mix-up at the post office furnishes much of the social drama. In the green fields, cheerfully mud-slapped workers busily sow ballot papers into the soil - every vote cast for the Conservative Party.  The light mimics the turn of the seasons.  Puce autumn, the ice-blue of winter, the cautious lambent peachflesh of spring - and then, all in a rush, the hot lusty red heat of summer.  As the seasons turn, the first shoots of dark hair push through the lovingly tended earth.  Come the red, Jacob Rees-Mogg MP, wearing full unsullied cricket whites, has slowly sprouted from the good earth.  He favours us with a recitation of the opening verse of W.H. Auden's "On This Island":

"Look, stranger, on this island now
The leaping light for your delight discovers,
Stand stable here
And silent be,
That through the channels of the ear
May wander like a river
The swaying sound of the sea."

From light lavender lighting, to bloody, fell-handed illumination. Smog. Smoulder. Gloom. The stadium is rent in two by an advancing line of red liquid which bisects the field. The twin floods pool at the very centre of the stadium in a smouldering, scarlet cauldron.  To a riot of drums, Kenneth Branagh explodes from the water atop a plinth shooting every higher and higher into the sky.  He is dressed as Enoch Powell, and reads a moving passage of Rudyard Kipling's "The White Man's Burden", as ethnic minority dancers carrying whips crackle about him, offering crisp percussive snaps of their goads, driving the population of Candleford into a series of caves which open in the floor of the complex. Haunting, manic laughter.

London. A 1930s Italian cafe - Luigi's - is lowered onto the centre of the stage, as several dancers, dressed as different sorts of pasta slide uneasily onto the stage.  The ethnically-stereotyped but cheerful business owner hands out ice creams to little children.  In a trice, the dancers peel off their penne overcoats, to reveal army uniforms.  The moustachioed business owner is brutally taken into custody by the children, to celebrate the internment of Britain's Italian population during World War II.  A huge silver cloche ascends into the sky, revealing an outsize and outrageous James Corden, dressed as Mussolini, sitting on top of the Olympic pyre.  A helicopter appears overhead, and Jeremy Clarkson falls from it like a fleshy comet, landing beside Corden, swaddled in the uniform of the parachute regiment.  The car-enthusiast slugs Corden across the napper, produces a box of matches, lights a fag - and casually flicks it onto the pyre. It explodes with heat and flame. Cue the world-beating running, hopping and leaping.

The ceremony to be enlivened throughout by smaller, tableau snatches of British life. A plumber tapping his watch and shaking his head to a distressed looking housewife beside a washing machine. Admiral Byng's execution. A jolly knot of gentlemen, enjoying brandy and choice cigars at their club.  A doctor demanding a shiny shilling to stitch up a patient's suppurating chest wound, before handing the gleaming coin over to a triangle of snazzy looking executives in bespoke suits with sharp lines. A knot of shakoed readcoats smartly repelling undisciplined crowds of Napoleon lookalikes with orderly volleys of musket fire. Etcetera. Etcetera.

Maybe next time, eh?

Football justice for imaginary North Koreans!

A comic thought this morning on twitter from Love and Garbage.  At Hampden park yesterday, the doughty Olympic organisers experienced a wee technical hiccup. Or at least, something rhyming with hiccup.  The sport was women's football, the teams all set to play, Colombia and North Korea, but the flag flying on the big screen - alas - was South Korea's four black trigrams and central blue and red taegeuk instead of the North's red star and red white and blue bands. Cue predictable outrage from the players, and delays, and red phizogs from the ignorant numpties charged with organising the show. Widely reported as a gaffe, could running up the wrong pennant be treated something rather more serious? As Love and Garbage asks, only half-jestingly, might flying the South Korean flag actually have breached Offensive Behaviour at Football Act?

The answer, ridiculously, entertainingly, is yes.  Remember, the 2012 Act provided that:

1(1) A person commits an offence if, in relation to a regulated football match—
(a) the person engages in behaviour of a kind described in subsection (2), and
(b) the behaviour—
(i) is likely to incite public disorder, or
(ii) would be likely to incite public disorder.

Firstly, was the Hampden game a "regulated football match"? The 2012 Act is perfectly plain about that.  A game involving one or more teams representing "countries or territories" is a regulated match, covered by the law. What about the behaviour itself? The folk at Hampden broadcast the flag and the faces of North Korean players onto a big screen within the stadium itself. There was no physical flag, as I understand it, but the 2012 Act is uncompromisingly broad, covering:

4(1)(a) behaviour of any kind including, in particular, things said or otherwise communicated as well as things done.

The next question we have to ask ourselves is whether hoisting the wrong flag meets one of the Act's definitions of "offensive behaviour".  As you may recall, these are diverse, the definitions driven by the domestic vices of sectarianism, but go well beyond the traditional hatred and ditties which have squalled over Scotland's football terraces.

(2) The behaviour is—
(a) expressing hatred of, or stirring up hatred against, a group of persons based on their membership (or presumed membership) of—
(i) a religious group,
(ii) a social or cultural group with a perceived religious affiliation,
(iii) a group defined by reference to a thing mentioned in subsection (4),
(b) expressing hatred of, or stirring up hatred against, an individual based on the individual’s membership (or presumed membership) of a group mentioned in any of sub-paragraphs (i) to (iii) of paragraph (a),
(c) behaviour that is motivated (wholly or partly) by hatred of a group mentioned in any of those sub-paragraphs,
(d) behaviour that is threatening, or
(e) other behaviour that a reasonable person would be likely to consider offensive.

I don't think one can get very far with the idea that flying the incorrect banner expressed or stirred up hatred against North Koreans, or for that matter, that it was threatening - but look at section (e): "Other behaviour that a reasonable person would be likely to consider offensive".  As concepts go, this one is hardly very clearly pinned down, and I'm no expert on the current state of North-South Korean relations, but given the history and ongoing tensions between the two countries, and the mine field which runs along their borders, it seems fair to say that the transposition of one flag for the other is sorely affronting.

The reasonable person seems likely to consider it to be offensive, nor is this necessarily an eccentric conclusion.  Imagine a bumbling football organiser negligently flew the Orange Order flag, in place of Celtic's green and white pennant, or for that matter, in place of Rangers' blue; or someone waggishly or accidentally substituted the flag of the state of Israel for the Nazi flag, and didn't realise his mistake till he saw it on the big screen. It is easy to imagine any of these scenarios being prosecuted under the Football Act.

But what about public order? As the Minister assured us when the Bill was being finalised earlier this year, while the concept of offensive behaviour is extremely broad, the government sought to qualify it with a narrower condition: that offensive behaviour had to put public order at risk before it would be criminalised under the new legislation. 

Certainly, the women's team refused to set foot on the green in high dudgeon, but I imagine the crowd wasn't exactly awash with North Korean football fans. Surely the chances of public disorder as a result of this "offensive behaviour" was limited? You may be right, but the Football Bill plays a natty little trick which makes such common sense calculations irrelevant.  The offensive behaviour doesn't have to cause a stramash. Indeed, a stramash doesn't even have to be possible, never mind probable, for offensive behaviour to be criminalised under the 2012 Act. The behaviour need only be 1(1)(b)(i) "likely to incite public disorder" or alternatively, such behaviour as 1(1)(b)(ii) "would be likely to incite public disorder".

In one of its daffier, more whimsical provisions, the Act makes it eminently clear that as we puzzle through whether the impugned behaviour risks causing public disorder to break out, we should invent hypothetical crowds of people likely to be antagonised, and on that basis, come to a view about whether a fray is likely to be provoked by the behaviour:

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

Just think about that.  In this case, the question we must ask is not whether it is likely North Korean sections of the crowd might have been provoked into a swirling cavalcade of outraged violence, only failing to work up a riot because they didn't bring their families over to Scotland to see the women's team play.  Instead, the Football Act invites us to engage in counterfactual thinking, speculating on what might have happened, had Hampden been stuffed to the gunnels with wholly fictional North Koreans, troubled, insulted and offended by the flag of their inveterate foe flying beside the faces of their football team.  

And for that matter, what seems likely to have happened, if all of Hampden's empty seats have been full of patriotic North Korean football fans, when the big screen flashed its foolish error? Things needn't even degenerate into a brawl.  Imagine if imaginary crowds of North Koreans had all attempted to leave the stadium at once, outraged at this affront. Plenty of capacity for imaginary jostling, heated encounters and a disordered crowd crush, a threat to life and limb.  Imaginary public order was clearly imperilled. 

I'm sure I recall someone - several important characters in fact - saying something once about taking a "zero tolerance" attitude to offensive behaviour at football in Scotland.  Surely all those fictional North Koreans who weren't sitting in Hampden deserve a little justice.

"Crack Womble squad drafted in to protect Olympics..."

Damn this deluge.  A drear summer has many victims.  The saddest, for me, was the interruptions to the delivery of my copies of the Kinlochbervie Chronicle which this wretched rain has imposed. Happily, today's blue sky has permitted one of Ecclefechan Mackay's carrier pigeons to reach Glasgow, dry. With him, he brought the following startling report on the state of Olympic security in London.  Say what you like about Theresa May, at least she's finally got this mess well in hand.

"Crack Womble squad drafted in to protect Olympics"

by Ecclefechan Mackay, Chief Political Correspondent

Kinlochbervie Chronicle 17th July 2012

The Home Secretary has moved to reassert her beleaguered authority today, by drafting in a crack squad to reinforce the depleted Olympics security forces. The Wombles, a London-based security cooperative, will step in to provide five hundred "fully-armed, combat-trained, burrow-dwelling" guards to make up the shortfall in army, police and G4S security forces keeping order in the capital over the coming weeks. 

Experienced providers of "conflict-based compliance solutions", the Wombles' past employers include the Toyland police authorities and the British East India Company. Charged with maintaining order during the tumultuous fraud trial of Noddy, Toyland's deposed former prime minister, the Wombles earned a reputation for the discipline and efficiency of their cosh work. When Noddy was convicted and executed for his crimes in 2011, just eighteen Toylanders were killed and over fifty injured in the subsequent riots.  

In a statement to the House of Commons, Home Secretary Theresa May told MPs that the company's chief executive, Great Uncle Bulgaria, had given her assurances that the firm would deliver Olympics security "on time, on budget, and armed to the teeth".  May continued, "The Wombles do wonderful work, simultaneously improving the urban environment and crushing public disorder. They are civic minded yet severe.  I am confident that the Olympics will be safe in the iron grip of their fuzzy, wuzzy paws".  A spokesman for David Cameron added, "the Prime Minister has admired the company's ethos for some time. This sort of socially-responsible enterprise is the big society in action."

Welcoming May's announcement, green campaigners hailed the Wombles' "sustainable, ecologically sensitive" approach to delivering state-sponsored oppression. The company's "make do and mend" philosophy turns used condoms, hypodermic needles and polystyrene kebab boxes harvested from urban brownfield sites into rubber bullets, stun grenades and watercannons. Dr Mike Batt, a researcher at the Polytoyn-B Research Institute, told the Chronicle "the company really make good use of the things that they find, things that the everyday folks leave behind." Commenting, the security firm's chief engineer expressed  confidence that the Wombles' working methods and equipment make them a "good fit" for the Olympic job. "Make good use of bad rubbish, that's our motto", Tobermory said.

Ministry of Defence sources have confirmed that "the majority" of military hardware lost over the last fifty years have found their way into the Wombles' possession. Stored in the unit's base of operations in an undisclosed location somewhere in or around Wimbledon Common, their armoury is understood to include at least two Eurofighter Typhoon warplanes and an original 1916 British Mk I tank.  "It turns out that the Wombles are better equipped than most of our infantry regiments these days", Batt continued.

However, the deployment additional Womble forces has not been universally welcomed. It is understood that Bick Nuckles, operator a lucrative range of protection rackets in South London, was not consulted by the Minister before the new appointment was made.  Sources close to Nuckles suggest that his senior staff feel "humiliated and undermined" by May's move.

An independent security analyst confirmed "This should really put their G4S at a peep".

Labour for Independence?

Beyond the pale, disreputable, thoroughly discreditable, incredible, unthinkable. At some point in our lives, most of us should have encountered a moment when we were surrounded by people for whom some cherished conviction of our own was absolutely anathema. Whether representative of the wider population or not, this "common sense in the room" can be intoxicating. For an extreme instance, watch Scottish Questions at Westminster, which is now devoted to pouring vial after vial of scorn over SNP heads. In the great baying mob of MPs, the isolated Nationalist delegation's voices are thin, reedy and invariably drowned out in a haughty chorus of gleeful insolence.

I blogged a wee while back about my experiences at the high table of an Oxford college (which will remain nameless), at which Scottish nationalism wasn’t exactly held in high regard. Indeed, it was dismissed summarily, out of hand, as if the proposition was a transparent absurdity, and any soul who conceived otherwise was surely a silly sausage, and certainly not to be taken seriously. It matters who and what we feel able to write off out of hand, in a casual, argument-slaying shrug. In that piece, I suggested that Scottish Tories are likely to find themselves victim to this sort of chortling scorn, scorned to be taken seriously, the possibilities for reasoned argument foreclosed by your interlocutor's contempt.

Few Holyrood watchers could have failed to notice that hitherto a similar spirit has ruled much of the independence referendum debate. At First Minster’s questions, Ruth Davidson and Johann Lamont habitually inveigh against nationalism, full of fulmination, damning Salmond’s eyes for a daffy, Quixotic fellow on a fool’s errand. Despite occasions in the past where both women have explicitly recognised that Scotland is fit for self-government, rhetorically at least, both have done their weather best to characterise nationalism as outlandish, pathological, and unthinkable. The other day, it struck me that this discourse is dependent on the logic of partisanship, assuming that all of the SNP align behind YesScotland, and all of Labour and the Tories form up with BetterTogether. As the name implies, it may be surprising for your average supporter of the Conservative and Unionist party to support independence – but what about Labour? 

As some of the party’s supporters never tire of telling us, they are not nationalists, nor unionists, but understand their politics to be animated by rather different gods. Some, undoubtedly, still identify as democratic socialists, or at the very least as social democrats, and see their primary purpose – their project – in those terms, whatever intersecting national borders their political struggles may cross. All well and good, and for the moment, let’s take them at their word and accept their political self-diagnosis. If their attitude to the referendum is essentially about means rather than ends – and their question, what means best secure our ends, Union or Scottish independence? – wouldn’t it be a little strange if there was no disagreement whatsoever about which constitutional strategy the party ought to pursue? 

Which got me wondering, where's "Labour for independence?", and is such a movement even thinkable in the contemporary Scottish Labour party? You have Dennis Canavan, of course, but he's been out of Labour politics for yonks now.  I don’t know enough about the ins and the outs of the outfit to tell. One thing is obvious: Johann obviously feels no need to be circumspect about the views of the membership of her party, or for that matter, her fellow parliamentarians in Westminster or in Holyrood.  All are assumed to share her sovereign contempt for the motives and missions of Scottish nationalists.

It may well be that, in the atmosphere which has governed Scottish politics these last years, premised on daggers-drawn between Labour and the SNP, you couldn’t get elected an MSP or MP without being committed to an uncharacteristic, reflexive Unionism of the sort espoused – albeit rather limply these days – by the Tories. I doubt very much, however, that this unwavering phalanx of pro-Union opinion can be representative of the whole Labour movement.  After all, in their own terms, they are neither unionists nor nationalists, and there is at least an argument that realising democratic socialist goals in an independent Scotland would be more straightforwardly accomplished than in Westminster. 

Many folk have been protesting that they're keen for a civilised, intelligent, substantive debate on independence.  It may well be that the first step to doing so is the emergence of a Labour pro-independence group of any significance - or at the very least, a shift in unionist discourse from the idea that nationalism is discreditable, unserious folly, but is instead a viable perspective on politics and the constitution with which they respectfully disagree.  We all know that the atmosphere around the SNP has changed in a number of respects these last years.  In 2006, Mike Russell published a co-authored tract, calling for a "new Union" in these islands.  Various other figures in the party have been taking another look at Britishness, and instead of casually rejecting it, are finding interesting new articulations of the idea. For myself, I tried to contribute in a small way towards obliterating the gridiron binaries and recrimination which has characterised the debate by outlining my own ambivalences about the nationalist project.

These aren't concessions to a opposed worldview, nor I think signs of Nationalist weakness.  Quite the opposite.  Occam's razor a clumsy instrument. Things are complicated, and compromised, and owning up to that's no vice.  We may despatch such ambivalences to a gloomy gulag in the back of our minds, but the niggling little thoughts cannot so easily be exorcised. Folk like Gerry Hassan have been arguing for a long while that the crude Manichean spirit which dominates Scottish politics is pernicious. These past months, we've arguably seen movement on the nationalist side of the argument, but little or no evidence of  Unionist attempts to understand the compelling dimensions of the nationalist case, not as a declaratory ethnic project, but one based on ideas of responsibility, self-government, of a better politics afloat on something other than endlessly repatched, creaky, leaky British ship of state.

I enjoy a good flyting. I'm no wilting bloom, opposed to a dry line, the cruel laugh, the mirthful, malicious put down neatly deployed to disarm an opponent.  Don't let's be prissy. But a precondition of meaningful debate is understanding your opponents ideas, their language and ambitions. We'll never achieve that, without nationalists occasionally borrowing unionist wellies, taking them out for a traipse, and vice versa.  As Johann Lamont's recent performances at FMQs has shown, imperious scorn can be the stuff of effective stand-up comedy but not, I fancy, of illuminating dialectic. 

The criminal law & mitey morphin' power Rangers...

I'm not your man for the football. I have no thoughts on the state of Scottish football, the liquidation of Rangers, or their strange, attenuated reincarnation, beyond the - hopefully uncontroversial - observation that corporations should pay their taxes, directors should be honest, not venal and negligent and gains got by theft and malpractice should not be rewarded. The collapse of some empires definitively should not be mourned. I've a weakness for stories of hubris whose disaster is royally visited upon itself, and have surveyed the engulfing calamity in that spirit. 

That said, I am interested in the law which Scotland has built up around football, most recently the Offensive Behaviour at Football Act of 2012, which you may remember I was and remain very much opposed to.  But bracket that.  What effect, if any, might Rangers' crashing out of the Scottish Premier League have on the implementation of legislation which was, as you'll recall, largely premised on the familiar spectre of the big and bitter Old Firm match, resounding with chant, singsong and mutual recrimination? I've been wondering if a peripheral section of the 2012 Act might not increase in significance.

Remember, the law primarily criminalises "offensive behaviour at regulated football matches". "Offensiveness" is defined exceedingly broadly. The definition of "regulated football matches" for the 2012 is largely borrowed from the Public Order and Criminal Justice (Scotland) Act 2006, which includes all games where one or both of the teams are members of the SPL and SFL, of the the Football League, the Football Association Premier League, the Football Conference or the League of Wales, or whether the Scottish national team is playing, whether at home or abroad. The 2012 Act is slightly more limited in its compass, and the offence it created:

2(1)(b) does not include a regulated football match outside Scotland unless the match involves—
(i) a national team appointed to represent Scotland, or
(ii) a team representing a club that is a member of a football association or league based in Scotland.

As you may recall, the "offensive behaviour" criminalised by this Act applies to folk in, entering, leaving or on their way to a football ground where a regulated match is taking place.  It also applies in:

2(3) "... any place (other than domestic premises) at which such a match is televised."

Rangers' fans may not see their team playing in the SPL, and if consigned to the third division, their games presumably won't be televised, but assuming that they are sporting enthusiasts with a certain attachment to the spectacle of top-flight of Scottish football booting the bladder about, they might at the very minimum decamp to a comfortable pub to watch their inveterate foes and former competitors fighting it out in their absence.  In the final controversial stages of the Football Bill, various Scottish politicians and senior policemen envisaged ostentatious police raids on pubs where regulated football matches were broadcast, silencing singers and penalising sectarian expressions wherever they risked creating "public disorder". At the time, this mostly came off as the empty, "tough" rhetoric of political poseurs, but I wonder if the provision might not become more important, as Rangers fans are cleared off of Premier Division terraces, and a segment of their supporters are obliged to take their sectarian ditties with them - presumably - to the pub.

Captain Calamity's ship sails again...

You can almost imagine the twinkle in Lord Pentland's eye.  Stuart Hill was suing the Royal Bank of Scotland for the pretty sum of £23,583,434.55. From the judgment (and I dare say, from the submissions of the pursuer), it isn't exactly easy to understand why Hill believed that the bank owed him this vast pile of lucre, but believe it he did. Curiously, Hill also claimed that, as a Shetland resident, the Court he had had resort to to press his claim against RBS enjoyed no jurisdiction over him whatever.   

At this point in proceedings, you may well feel a dim recollection for another Stuart Hill, also now of Shetland, also known as "Captain Calamity" after his disastrous attempt to circumnavigate the British isles, only moderately better supplied than Edward Lear's Owl and the Pussycat.  At least that naval pair had a five pound note to cover the cost of their rescue.  More recently, Hill has received occasional attention in the press as an amateur jurisprude and secessionary nationalist.  Interested in the distinct legal status of the Shetland isles, Hill is the founding father of the breakaway People's Republic of Forvik, a purported Crown Dependency which Hill declared in the summer of 2008. He writes that:

"The whole of the UK government's authority in Shetland rests on the assumption that Shetland is part of Scotland. My research since 2002 into Shetland's unique history leads me to the inescapable conclusion that it never happened - and that it could never have happened."

Hill's million-pound claim was rejected on other grounds. Afforded the opportunity to pronounce on these matters, however, Lord Pentland couldn't resist taking up the history books, and Hill's argument about the legal status of the Shetland islands. There is, he says, no doubt that as a matter of law, Shetland has been folded into Scotland. It also presented a rare chance aptly to use the word "impignoration" in a sentence...

[19] I should add that the defender also sought to argue, on the basis of a 72 page historical analysis set out in his Note of Arguments (number 18 of process), that the court has no jurisdiction against him because he resides in Shetland, which he contends is not part of the United Kingdom. The defender's arguments, as I understood them, rested on the proposition that the Pawning Document granted by King Christian I of Denmark and Norway in 1469 only pledged about 3 or 10 per cent of the land in Shetland. This was, according to the defender, a private arrangement relating only to the king's lands in Shetland and it left the remainder of the land of the islands in the outright ownership of the people of Shetland. Even today that continued to be the position with the result that sovereignty over the islands continued to reside with the 90 or 97 per cent of land-owning inhabitants, who were "sovereign in their own right".

[20] In my opinion, the proposition that the Court of Session does not have jurisdiction in the present case is flawed and must be rejected. It would be unsatisfactory and surprising if the Court of Session did not have jurisdiction to reduce a statutory demand served on a Scottish company at its registered office in Scotland by a person residing in Shetland. It is obvious that there are very strong factors connecting such a case with this court. It seems to me that by instituting in Scotland a legal process which could potentially lead to the winding-up of a Scottish company by the Scottish courts the defender must be taken to have impliedly accepted that it is for the Scottish courts to rule on the validity and legality of the steps taken by him as part of that legal process. So even before one comes to consider the defender's contention that he does not live in Scotland it can immediately be seen that the present case has particularly strong and obvious connections with the Scottish courts.

[21] As to the historical background, it seems to me that it must now be regarded as settled in law that Shetland forms part of the United Kingdom and lies within the territorial jurisdiction of the Court of Session. Questions of the type that the defender sought to raise at the debate as to the exact nature and extent of what was pledged by the impignorations of 1468-69 nowadays fall to be addressed by historians rather than by the courts. As I understand it, one effect of the 1468-69 arrangements was that King Christian commanded those living in the Shetland Islands to pay their taxes to the Scottish Crown and to obey the Scottish king until the islands were redeemed. They never have been redeemed and the right of redemption must, I think, now be regarded as having been lost.

[22] From the sixteenth century Scottish law and customs increasingly infiltrated life on the islands. As the Lord Ordinary (Lord Hunter) explained in the St. Ninian's Isle Treasure case (Lord Advocate v University of Aberdeen and another 1963 S.C. 533 at 540) from an early stage following the impignorations the Scottish Parliament assumed the right to legislate for Shetland (as well as Orkney) as part of the Kingdom of Scotland. By a gradual process the local judicial institutions and laws of the islands were encroached upon and superseded by the judicial institutions and law of Scotland.

[23] I note that in the Stair Memorial Encyclopaedia (Volume 24, paragraph 328) the view is expressed that there is a strong case for assuming Scotland's acquisition of dominium over Orkney and Shetland prior to 1707 and that the Treaty of Union did nothing to displace this. The Scottish (and hence the British) title to Orkney and Shetland was well-established by 1707. There is, in my opinion, considerable force in the views on the subject expressed by the distinguished international lawyer Professor John Grant; these are quoted in the same paragraph in the Stair Memorial Encyclopaedia. Professor Grant takes the view that Shetland (and Orkney) form part of the United Kingdom. He observes that for a very long time there has been peaceful, open, continuous and effective occupation of Shetland by the British Crown. This has been coupled with a clear and unequivocal intention on the part of the Crown to act as sovereign. There is no competing claimant in modern times. For some considerable time past the United Kingdom has, Professor Grant points out, undoubtedly exercised full sovereign powers over Shetland. The long-established exercise of sovereignty over Shetland by the United Kingdom results, in his view, from the exercise of a full range of governmental and legislative functions over the islands over a large number of years without interruption or, it may be added, challenge. All this seems to me to be undoubtedly sound.

[24] I note also that in Lord Advocate v University of Aberdeen and another supra Lord Patrick, whose opinion was concurred in by the other members of the Inner House, said this (on page 556):

"What is certain is that since 1468 the right of sovereignty over the (Shetland) islands has belonged to the kings of Scotland and afterwards of Great Britain."

[25] Lord Mackintosh observed (at page 560) that Shetland "is and has for long been under the sovereignty of the Scottish and thereafter the British Crown".

[26] In my opinion, as these statements in the Inner House clearly show, it is now settled that, as a matter of law, Shetland is part of the United Kingdom. The British Crown has the right to exercise sovereignty over the islands. Scots Law applies there and the Scottish courts have territorial jurisdiction there. In the circumstances, I have no difficulty in holding that this court has jurisdiction over the defender in the present action.

That Royal Bank of Scotland v Stuart Hill judgment in full.

Trapper Cameron's humbug & poppycock...

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

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

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

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

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

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

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

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

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

A nationalist liferaft, but who is it for?

By nature, I'm something of a switherer.  I could try to paint this as a virtue, suspicious of the verities of one side and open to alternative arguments, but it makes for a damn predicament when critical moments of choice come along.  And for a nationalist, the question whether or not we should incorporate a second, devo-something question into the independence referendum is one of those moments of choice.  A few months back, I felt flatly in favour of a yeah or nay vote, independence or not, and then I wobbled. 

I’ve been trying to discern why.  Not, of course, that my say so or nay so matters a jot, but it’d be nice to see clearly through the constitutional fog, for my own sake.  The polls are obviously part of the calculation.  On the best evidence we have before us, most Scots do not currently favour independence, being partial instead to a reformed Union which nobody is offering, and a Scottish Parliament with extensive new powers over taxation and welfare which hitherto, all of the UK parties have stridently resisted devolving. As someone with democratic sensibilities, it would be churlish to ignore those demands, whatever your political persuasion. As Duncan Hamilton recently wrote in the Scotland on Sunday, in a significant piece from the former MSP and Salmond aide:

“The campaign is clearly for independence but, as gradualists, most independence supporters (like me) also see the merit in working with the majority opinion, which is currently overwhelmingly in favour of a second question on the maximum devolution short of independence.  We want Scotland to move forward united, and if that means accepting a slower pace towards independence, so be it.”

On the other hand, the polls show that we’ll be accepting “a slower pace towards independence” by significantly diminishing support for independence in the process.  Of course, the polls may yet change before 2014 – upward or downward for either side – but we’re in the process of framing this referendum now.  Its legal basis will have to be in place at the very latest in the first quarter of 2013.  While it is a fond thought that come 2014, Cameron may find himself pitched into panic as YesScotland succeed in aligning mistrust of Westminster and political suspicion of Tories into support for independence, no late changes to the number of questions posed in the referendum will follow.  This just wouldn’t be practicable. No, we’ve got to decide on the final formal shape of the poll over the next few months, on the current best evidence about the state of public opinion.  So what’s to do and why to do it?

The calculating nationalist might consider recent political parallels. Take the abortive reform of the electoral system.  In 2011, the Alternative Vote referendum was defeated by a margin of 32.1% to 67.9%.  While we may debate whether the whole process represented a set-back or a knee-up for the causes of electoral reform in the longer run, in the short and the medium, it has largely been construed as a triumphant reaffirmation of the first past the post system, a fillip for comforting Britannic narratives of parliamentary sovereignty, “strong” government, and the solidity of Westminster’s creaking edifice.  The idea that the referendum presages a shift towards a more proportional electoral system deserves a black laugh.

Now consider the national question.  Imagine you are a nationalist who is pessimistic about the likelihood that Scots will embrace independence by 2014.  You are understandably keen to secure the best outcome possible in terms of Scottish self government, and the greatest reign of power for Scots institutions.  What do you do? A hefty “yes” vote in the referendum might do the trick, but if the dominant story is “independence defeated”, with no alternative tale to tell about Scots’ dissatisfaction with the status quo, why should one expect that the Unionist parties will be minded to make concessions to a defeated Scottish Nationalist party?

For those who favour a single question, and who are pessimistic about the consequences of a “no” vote, the vista is simply bleak.  No obvious route to more devolution. No independence.  Nowt.  For folk like Gerry Hassan, we’re putting it all to the touch, to win or lose it all.  He’s written supportively of a single, crisp referendum question.  In a recent discussion on twitter, Gerry was also critical about unilateral federation in these islands. Can it be legitimate for Scotland to try to use concepts of national self-determination to enforce a more federal structure on the rest of the United Kingdom? Surely you cannot unilaterally seize federation, but have to come together, all of your constituent parts, properly to constitute one? Constitutional buccaneers are likely to be impatient with this, and to dismiss it as an unnecessarily abstract council of woe or an excess of political scrupulousness, whose upshot is nothing less than self-denying political paralysis. 

If unilateral Scottish action – through a devo-something question in a referendum, for example – seems the only way to secure what the majority of Scots seem to want, and a powerful pan-UK campaign for federalism cannot be expected and will not materialise, then damn the niceties and confound the cavils! Press on with a campaign to secure devolution by employing nationalist language and arguments.  The outcome will crown the work, and if some folk find that conceptually messy, I’m sure they’ll get over it come the day Holyrood takes over its taxing and welfare powers.  That’s the argument, anyway.

For the Devo-Buccaneer, a second question is absolutely necessary.  For him, it won’t answer that Holyrood hasn’t the power unilaterally to deliver a much-enhanced devolutionary package of powers: this is politics, the stuff of persuasion – and putting the fear of God into your enemies.  If this is the only conceivable way to make the slack British political establishment snap to, and deliver further, substantive powers – so be it.  Critically, these picaresque devolutionary adventurers are likely to be sceptical about Westminster’s reaction to a “no” vote in Holyrood, absent a strongly-endorsed alternative answer to the question of Scotland’s powers.  If independence is posed alone, loses, and loses big – say the order of defeat the AV vote went down under – the political impetus will be away from more devolution, not towards it without another question.  It is not in Britain’s nature to reform its centre.  In the absence of a clear, noisy, democratic endorsement of change, its servants and politicians may be expected to kick against the pricks, advance at best at a brisk Calman dawdle, and do everything in its power to compromise and equivocate, to avoid change.

For my part, I suspect my ambivalence and equivocation on the second question is partly due to my ‘federal nationalist’ inclinations.  Biographically, there are plenty of reasons why the concept of sovereignty and even independence isn’t one which particularly fires my imagination. I am a Scottish nationalist, currently live and work in England, and study the greater Europe encompassed by the jurisdiction of the European Court of Human Rights.  For nationalists, it seems to me essential that the independence debate focuses not on question of national identities, Scottish-and-or-equally-British, but instead on political powers. Who do you wish to make decisions affecting your lives, on taxation, on welfare, on war?  By including a devo-something option on the ballot, we tilt the debate more in that direction.  Against this, folk tend to argue that devolution and independence are fundamentally different, and to suggest that the two are on some sort of spectrum of Scottish self-government is bunkum, a category error.  As the polls show, that is simply not how most Scots currently see the constitutional debate. As a nationalist who will on some level regret Britain’s failure to save itself come independence, I sympathise. 

Most of my friends are flown here from every corner of the earth, but many are locals. I do not see myself as a “narrow nationalist” of any persuasion.  As someone with a background in critical sociology, I cannot but approach ideas of ethnicity, of nation and nationality gingerly, with a hefty dose of suspicion.  Even hailing from what has been a nationalist-leaning family for some generations now, and not identifying as British at all, I’m not immune to the sort of feelings of cross-border connection and solidarity which I’d hazard many of those opposed to independence feel, albeit unburdened with the idea that these are “British” connections, and imply views on Westminster’s jurisdiction to make political decisions effecting Scotland.

I’ve recently completed a long-term theatre project with a brilliant, cheerful, personable group of folk, most of them Oxford natives: decidedly town not gown.  It was a marvellous experience for a range of reasons which I needn’t go into here – but as we all sat down together after much work and laughter shared, with food, drink and convivial chatter – a familiar question formed, though not one which regularly suggests itself to me.  Wouldn’t we lose something between us if we split, an ineffable tie, difficult to articulate, but indubitably there? The thought hastily qualified itself: we counted an Australian chap and an Irishman amongst the glad company, and the separate statehood of the lands from which they hailed interceded not a jot, to exclude them from the rest of the troupe.  Interesting, though, how such thoughts can steal up on you, even when your position on the constitutional question is clear and decisive.  A timely reminder – and we often need reminding – that the hard binaries of Unionist and nationalist fail to capture the much more nuanced and compromised spectrum of feelings this debate stirs. 

If the UK adopted a radical scheme to de-centre the British state, re-coining a vision of a stable, federal United Kingdom, empowering Scottish institutions, excising its worm-eaten political core, and exorcised the bloody imperial ghosts which haunt its imagination, I can easily envision myself abandoning the independence project altogether.  Yet survey Westminster.  Note its dominant spirits, their political preoccupations and their rhetoric.  Only a fantasist could inspect those green and scarlet benches and see the germinal seeds of an imminent revolution in the way UK politics is imagined and conducted. 

Mine is a nationalism more in sorrow than in anger.  If I thought it practicable to reform the British constitution better to accommodate Scottish demands for self-government, I’d cheerful adopt it.  Hence, I think, Scottish Labour’s rhetoric is essentially “form up for another forlorn hope”. I say it sympathetically, but how many more of the glorious dead must choke the ditches of the Union before we recognise that this is a failed political strategy? I’d rather be cracking on with creating a more just republic for our people, than singing constant requiems for departed hopes, distracting us from the hopelessness of our situation. There is nothing inevitable about independence, but if it transpires, I firmly believe it will be attributable in large part to the unbending sclerosis which paralyses the British political imagination.  My feeling is that independence shouldn’t be necessary, but has become so.  In some sense, ironic though it is, devolution-max isn’t just a lifebelt cannily packed by the vanquished nationalist to keep them afloat during the coming squall, but can be seen too as raft flung to a floundering, waterlogged Britannia.  It appeals to the undecided, and to nationalist folk like me, who cannot but seriously entertain the idea of independence with a pang of regret.  Not for the end of Westminster rule, mind you, or abandoning the dismal British political consensus, but for the alternative, unrealised possibility of a better British polity that never materialised, and brought us to this pass.

I began swithering.  I hoped by scribbling this up, I’d have hacked my way through this intertwining thicket of sensibilities – and cleared some space in my head – but I swither still.  Does it come to this, that in some corner of my mind, I’ve not entirely given up on finding a way out of our predicament without resorting to the radical measure of independence? For a nationalist, this is an uncomfortable, niggling thought.  And yet, you don’t throw a life-belt to a drowned man, do you?