30 January 2013

Dating advice from the Electoral Commission...

Do you agree that we should go for dinner? Do you agree or disagree that we should go for dinner? Do you agree or disagree that we should go for dinner which, just to be clear, would mean not staying in and reheating that delicious pot of tripe I brewed up yesterday? Or should we just go for dinner? The last of these has a certain elegance the others want, to be sure. 

The next time I proposition someone, exploring opportunities for an evening repast, I'll certainly take the Electoral Commission's advice when formulating my question. I'm a scrupulous (for which read, uptight) sort of fellow, and I'd hate mischievously to frame my enquiry in a way that wasn't entirely neutral, yea or nay.

Today, the media mostly seems keen to represent the Electoral Commission's advice to the Scottish Government as another damaging turn for the SNP.  Disaster for Salmond. A humiliating "rejection" of a skewed and skewing question: just the sort of sly trick you'd expect the First Minister to pull, in a guileful attempt to hornswoggle a goonish section of the electorate into supporting independence accidentally. For what it is worth, my opinion of the Scottish electorate isn't quite as low as many of our elected tribunes in the House of Commons, and by the time polling day comes around, I'd expect folk to have a fair comprehension of what they're being asked, more or less autonomously from the particular text of the question they meet in the booth.

The key features of the agreed question? Its Yes/No structure. While the first, convoluted proposal to emanate from the Scottish Government in 2007 used the language of agreement and disagreement, the second iteration, published in January last year, shortened this to a terser Yes/No pairing.  A desire to retain this structure, and so starkly to frame the campaign along oppositionally positive and negative lines, presumably explains why this draft posited independence as a positive proposition. It recalls the balance of burdens in a criminal case in England, where it is for the prosecution to make out an indictment. Do you find the accused guilty or not guilty?  

Salmond's critics suggested that the question's presumptive positive was a deliberate attempt, via some subtle cognitive biasing, to plant subtle psychological lures in which the unwitting would find themselves entangled come referendum day, seduced into supporting "separatism" despite their cherished Unionist convictions. I don't find this terrifically plausible.  Much more likely, it seems to me, that the SNP were and are keen for the whole campaign to be framed in terms of a clear yes and no, positivity against negativity, springy-hopey-sunny independence against the drear annulling rhetoric of the abominable No men. You can't get this done with a referendum question framed in terms of agreement and disagreement.  The Commission's advice leaves this essential framing undisturbed. No affective references to "breaking up Britain" or to "separateness" or "separatism", no reclaiming the positive ground for the pro-Union campaign.

Secondly, it's interesting that the Electoral Commission has sanctioned the language of "country", which has not gone uncriticised in some quarters. None of the participants in their qualitative research exercises struggled with it, preferring its "more commonplace and easily-understood language" to the concept of an "independent state", which the stiff international lawyer might find more pleasing. If only the Commission had conducted their research in the Houses of Parliament, they'd have found several folk with furrowed brows, sorely vexed by the idea of an "independent country". During the Commons debate on the section 30 order, Eleanor Laing, formerly of the University of Glasgow, now Tory MP for Epping Forest, objected to the term:

"I turn next to the question. There is no point asking a question along the lines of: “Do you agree that Scotland should be an independent country?” That is what the First Minister and the Scottish Government have so far proposed. It is such a biased question that even I would answer yes—of course, Scotland should be, is and always has been an independent country. It is a non-question. There is no point going through the rigmarole of a referendum, spending hundreds of millions of pounds, to ask a meaningless question. If even I would answer yes, the facts speak for themselves: the question is enormously biased."

So too did our old friend, Lord George Foulkes, who told his colleagues on the red benches that:

"It does not refer to membership of the United Kingdom in any way whatever. I have spoken to some of my colleagues here, who think Scotland is currently an independent country in many senses."

Darth Forsyth, also in the House of Lords, took his light sabre to it:

"There is no more committed unionist in this House than I am, but I would be tempted to answer yes to that question. Scotland is an independent country."

Interestingly, there's been a shift or two in the SNP's own thinking on this one. Back in 2007, when the minority Scottish Government introduced its White Paper, the draft Bill envisaged negotiations with a view to making Scotland an "independent state". For some, statehood perhaps seemed a little abstract, with a certain whiff of international legalese clinging to it. So country it is. Which all seems perfectly tolerable to me. 

28 January 2013

Europe's war on British justice!

Europe.  The land of many's the British fantasy.  One of the dreariest of our own day is the idea that the European Court of Human Rights, based in Strasbourg, is somehow "waging war" on British courts and justice, meddlesomely upturning a substantial number of their decisions. A few salient facts blows that eurosceptic victim fantasy apart. I marshalled them in a wee piece in the Scotsman this morning, entitled "Is the European Court of Human Rights fit for purpose?"

I also took the opportunity to highlight a generally overlooked dimension of recent attempts to reform the Court: the situation of the thousands of poor applicants in ghastly situations, making their cases as best they can without legal representation.  You can read the whole thing here.

Europe was also on the menu on episode 12 of the For A' That podcast. No guest this week, but Michael and I chewed over what effect David Cameron's EU referendum wheeze might have on Britain and Scotland, and the campaign for independence. Michael discoursed at length about the length of bananas. We also took up last week's revivification of devosomething, and I make a scandalous admission about Scottish Labour leader, Johann Lamont. We buttonholed our blether with a look back across the Atlantic, to Obama's inauguration address, of its rhetoric and its substance.  As usual, you can listen to the show right here, or download it from Spreaker, or from iTunes.

26 January 2013

Ruth's Pushmi-Pullyu routine...

Just a brief thought today. Yesterday, Scottish Tory leader Ruth Davidson gave a speech entitled "Scotland First". critically reviewed this morning by Alan Cochrane for the Telegraph and Alex Massie in the Scotsman.  Both more or less agree that the address served at least two functions. Firstly, it represented an attempt to distinguish Davidson from her colleagues in England and Wales and to assert a distinctly Scottish Conservative identity and agenda. No longer stooges for southron masters, no more mere peripheral scoffers on the Scottish political scene, tomorrow's Scottish Conservatives, she insists, must be right-trusty guardians of the Scottish interest, no longer seen as "London’s party in Scotland".

As Alex rightly recognises, this sort of the rhetoric has the nasty habit of re-enforcing rather than subverting the very stereotypes which Ruth hopes to assail, but for now, let's take her argument on its own terms.  The second string on her fiddle was devosomething. Ruth took the opportunity of the speech to slap a boot into the dunes, and in the stinging fug, attempted a pretty outrageous constitutional volte face. Well, probably attempted. As Sieur Cochrane notes, detail there was little. You may remember that on launching her campaign against Darth Murdo in September 2011, Davidson insisted that

“The Scotland Bill currently going through Westminster is the line in the sand. The time for arguing about the powers the people want is over. It’s time now to use the powers that we have.”

Just a few short months later, all's change it would seem. Or rather, all's-apparently-enthusiastically-but-vaguely-guesturing-towards-change. "Viewing devolution only through the prism of the threat of separation has been too one-dimensional," she says. Having hoodwinked her party's anti-devolutionist hardliners into supporting her candidacy agin the perfidious Murdo, she now declares herself devolution's friend, shoots admiring glances towards North Carolina in the United States, envisioning, albeit in a vague manner, yet another bout of "arguing about the powers the people want". Quoth she:

"... once the debate has been won, the threat of separation has receded and Scotland’s place in the Union is secure, we can take a serious and considered look at a new spread of responsibilities within the UK."

All well and good, you might well think. But I find myself wondering, is it really possible to serve these two ends simultaneously, at once to distance yourself from your colleagues down south, while dreaming up proposals for further constitutional change that will be at once practicable and credible? Consider a few simple facts. While the precise ambit of proposals for more devolution need not be made in Westminster, ultimately, it is the politicians in Westminster who must endorse and adopt them. In this ledger, the Scottish Tories are notoriously of paltry scope. Just the less-than-robust David Mundell with a vote and voice in the House of Commons for the last two parliaments. Even if we assume, for the sake of argument, a No vote in 2014, the Tories won't go into the Westminister general election of 2016 suffused with confidence that a host of colleagues will be joining Mundell on the blue benches.

As a consequence, if the Tories are going to be the party of further constitutional reform in the short to medium term, those reforms will have to be carried pre-eminently by the party's MPs representing English constituencies.  Of course, the party might well attempt to cobble together a consensual coalition across the Liberal Democratic and Labour parties, but ultimately, a Conservative-led government must rely on its own representatives, few of whom seem won-over to the virtues of devolution, or more than tepid proponents of innovating substantially to alter the balance of power in this country. Ruth Davidson's practical answer for realising more devolution can't be "vote Labour or Liberal Democrat instead and they might take care of it".

In this situation, you might well think that a Scottish Conservative leader would need to emphasise their close ties with her colleagues in Westminster rather than the distance separating them; her ability to bend arms, to convince the skeptical on her own side, to be Scotland's representative in the Tory councils in London, rather than a semi-detached figure, commanding little to no influence with them. Pushmi-Pullyu can't clop north and south simultaneously.

22 January 2013

"And yet we all would wish to feed on certainties..."

It is probably unwise to take Francis Urquhart, of the House of Cards, for a moral and political tutor, but the old villain had a fine line in insight into the allure and peril of denying contingency.

"So hard to know who to trust in these suspicious days. Does passion engender trust? Not necessarily. And yet we all would wish to feed on certainties. To hear the word "always", and believe it true. She trusts me absolutely, I believe. I trust she does. And I? I trust her absolutely... to be absolutely human."

In politics as in life, it matters what you are pessimistic about. Whatever some political scientists might have us believe, we don't live in a world straightforwardly structured according to immutable iron laws.  We may be tolerably confident that the sun will come up tomorrow (or at least some wan vestige of the sun, during the winter months), but absolute certainty about the future has the habit of eluding us. Fortuna kicks sand in our eyes. Our best laid plans unravel. Marvellous opportunity strikes, upending disaster for triumph.  Optimism, pessimism, and dicing the probabilities, are the elementary stuff of human affairs.  The rational soul has to make the best of it, weighing up likelihoods, assessing past conduct, and in the final analysis, take a calculated risk.  

On twitter this afternoon, Deputy Editor of the Scotland on Sunday, Kenny Farquharson laments recent Nationalist responses to the latest devolutionary wheeze from Alan Trench for the IPPR, with David Mundell claiming yesterday that all three pro-union parties would come up with another batch of proposals to wing more financial powers Holyrood's way, if independence is defeated in 2014.  Quoth Kenny:

I can understand Kenny's frustrations on many levels. He's not in favour of independence, but does support more powers. The case for independence is undeniably advanced by cultivating the idea that the UK is sclerotic, unreformable, unwilling to decentralise decision-making on key economic and social issue.  As Sturgeon put it in a recent speech:

"Devolution - to Scotland, Wales and Northern Ireland - was itself an attempt to renew the UK state. But the UK’s ability to re-invent itself is spent. The Westminster parties are at best sceptical and at worst hostile to further substantial reform in Scotland’s interests."

Kenny's thesis, as I understand it, is that this is an over-pessimistic assessment, underestimating the continued plasticity of the UK state, and under-egging the potential within the UK to secure more powers for Holyrood. On a broad, theoretical level, I agree with him. It is possible, for example, to see some routes towards greater devolution after a no vote.  With the United Kingdom's half-scribbled constitution, I suppose one can envisage circumstances coming around in which a new spirit of governance might, maybe, somehow subvert the centralising, controlling habits of the UK treasury, prying greater powers from their grasp. Certainly, if political forces committed to such ideas took over in Westminster, there appears little in the way of formal barriers, save perhaps the doctrine of parliamentary sovereignty, to prevent them from radically reimagining, from reconstituting, the British state.

After all, if we lose the referendum in 2014, and any honest supporter of independence must concede the possibility, we'll be linking arms with folk like Kenny, in the hope of finding effective strategies for coaxing or cajoling Westminster into relinquishing greater responsibilities for Holyrood.  That'll be a grim business if we go into it on the basis that the struggle will inevitably avail us nothing.  None of this is a given, a certainty.  We have to make a calculation about what is more likely to happen using our best resources, and best ideas. And like Nicola, and most other pro-independence sorts, on balance, I can't share Kenny's confidence in the hitherto very vague devolutionary nostrums emanating from the pro-Union parties.

The argument for pessimism has a pedigree going back at least to Tom Nairn, and goes something like this.  Although for many of its proponents, devolution was a political end worth pursuing in itself, for a great many others, support for the creation of a Scottish Parliament was a work of expediency, not of political principle. Devolution to shoot the nationalist fox, to negate a little trouble on the northern frontier and secure the British state. On this account, nationalist agitation is understood to be the prime driver of the devolution of powers.

A defeat in the referendum, by eliminating the risk of independence breaking up Britain, will simultaneously blunt one of the most effective rationales - some would say the only effective rationale - which could and has persuaded the Mother of Parliaments to part with a single iota of power or responsibility. A defeat for independence will mute the nationalist clamour and eliminate those anxieties for a generation, and in a trice, significantly diminish Westminster's incentives to devolve more power to Holyrood

One needn't favour independence to see that this argument is not without some force, even if you think that it overstates the role of pro-independence politics in achieving devolution, and understates the potential interest in more devolution in a United Kingdom which includes Scotland after the 2014 poll.  In that context, it seems eminently reasonable to me for nationalists to ask folk, musing on the likelihood and scale of any post-referendum devolution, not to take every claim at face value, and weigh up the risks and opportunities independently.  

An analysis of the past conduct and declared ideas of the major political parties in the UK must be part of that.  The Liberal Democrats have a long-standing commitment to federalism, which is well and good, but the calculating voter can hardly neglect to notice that they are 1) not likely to be elected as a majority party at the next UK election; 2) will in all probability receive a drubbing to relegate them once again to distant third party-status, frozen out of influence; and 3) even if, after 2014, they remain part of a coalition government in Westminster, their priorities will inevitably end up being significantly qualified by the politics of their partner.

And from neither the Labour Party, nor the Conservative Party, has any clear statement of principle yet emerged on what their preferred constitutional structures might look like, beyond the status quo. That flexible lack of programmatic commitments, of course, can cut both ways, leaving space for more devolution, and the door open for none, but it can hardly fill the doubting pro-devolutionist, considering voting yes in the absence of a better alternative, with much confidence that something like their preferred constitutional option is an incipient possibility. 

The Conservative Party was notoriously first opposed to devolution, and now it appears to have no principled position in favour of greater devolution. Although a right-inflected case for the devolution of fiscal decision-making is readily made, its most enthusiastic proponent in the Scottish party, Darth Murdo Fraser, stood and failed to be elected leader in 2011.  David Mundell their sole MP representing a Scottish constituency, it isn't at all clear that his English and Welsh colleagues are interested in further fracturing Westminster's powers, beyond some vague nostrums from David Cameron in that direction during 2011. Simultaneously, as anyone who has leant an ear to its recent rhetoric cannot have missed, the Tory parliamentary membership are increasingly fixated on parliamentary sovereignty. They hardly look like a mob, burning with enthusiasm to distribute Westminster and Whitehall's power with a more generous hand. 

On the Labour side of the chamber, things remain similarly opaque. If the tenor of their recent debate on the section 30 order is anything to go by, many of the party's Scottish MPs seem to want "devolution without devolution". Just a week ago, the House of Commons atmosphere was thick with condensation, and regret. For Scottish Labour's Deputy leader, Anas Sarwar, Holyrood was "not a democratic place in the conventional sense", crushed under the yoke of the (from his perspective, somehow illegitimate) SNP majority.

In other areas, including electoral reform, the Labour party has shown it to be every inch as conservative as their colleagues with the blue rosettes.  The party's parliamentary delegation from north of the border do not, to my eye, cut a compelling image of a crew keen to cut the Scottish Parliament in on more powers.  Its English MPs, by contrast, don't seem to give a fig one way or the other, beyond vaguely endorsing Labour's constitutional record during its last term of office.

In the absence of a clear body of principles from either of the large Westminster parties, it seems entirely admissible to look at their past conduct. Particularly their recent past conduct. Labour enjoyed office in this country between 1997 and 2010.  They are certainly not to be criticised for leaving the Scotland Act 1998 a decent time to bed down before revisiting many of its powers, but in the subsequent time, they've proven themselves implacably opposed to introducing just the sort and scale of powers which Alan Trench's IPPR report will seemingly propose. 

If they are such eager beavers for more devolution of further financial powers, why did they not make economic use of parliamentary time and ministerial resources in a penny-pinched period of our history, and use the latest Scotland Act as the vehicle to realise those apparently cherished ambitions? Remember, the Calman Commission proposals did not go unamended or enacted in full in the Scotland Act 2012.  Claims of fidelity to the proposals which Kenneth and his colleagues agreed upon simply won't do.

If you were such a grand enthusiast for greater devolution all along, why the devil didn't you tell anyone, act on those convictions, and even more mystifyingly, actually oppose introducing any further changes to Scotland's constitutional compact just a year ago? There may be persuasive answers to these questions. Frank ones, perhaps. We haven't the foggiest how we'd like to see new financial powers distributed, to be honest, but we're giving it a proper look now. 

I await worked proposals from the Tories and from Labour with anticipation. Until then, I don't think pessimism about loose commitments to greater devolution is disreputable, unreasonable grinchwork or a perverse conclusion to reach having weighed up the evidence before us, estimating what's plausible and what's probable.  Francis Urquhart has the right of it.

20 January 2013

Despatches from Nationalist-occupied Scotland...

There's your vellum, there's your quill. Now bugger off and write your constitution.  While that prospect might excite history's most avid amateur constitution framers, like the Abbé Sieyès, most folk quite reasonably wouldn't have the foggiest where to begin. Scratch around inside your skull and you're sure to find at least a few borrowed constitutional precepts and examples, but framing of the whole text? The prospect is intimidating to say the least.  

As an entrée, it seems more useful to pick a concrete issue, and use it to explore potential controversies about the different sorts of constitution we might choose from.  In a speech in London this week on a future independent Scotland's written constitution, Alex Salmond did just that, giving three examples of the sorts of question which a Scottish constitutional convention, framing the fundamental law of the land, would have to consider. The first he picked is arguably the handiest for stimulating the constitutional debate.  Salmond said:

"At the moment, the UK Government’s austerity measures and welfare cuts are raising questions about how people’s rights to vital social services can be protected. In Scotland we have a policy of the right to free education in keeping with our history as the nation which pioneered universal education. We also have homelessness legislation which is proving effective by granting rights to people who are made involuntarily homeless. There is an argument for embedding those provisions as constitutional rights."

Do you agree? Should we be seriously thinking about the constitution before 2014, or should we put off the discussion until after the poll? That was just one of the issues we nattered on about in this week's episode of the For A' That podcast. Michael and I were joined by Osama Saeed all the way from sunny Qatar. 

Currently Al Jazeera's head of communications, in a past life, Osama was also an advisor to the First Minister and Westminster candidate in Glasgow for the SNP.  We also discussed the international coverage which the independence debate is attracting, the snarky, loopy, anti-nat tenor which gripped the House of Commons debate on the section 30 order, passed by Westminster this week, and took a look back at the politics (and drama) of the city of Glasgow, in a week lacking neither.  As usual, this episode can be downloaded from iTunes and from Spreaker, or alternatively, you can listen to it online here.

18 January 2013

On transgressing civic boundaries...

Michty. I don't much care for your sex scandals, myself, but it seems that both the Herald and the Scotsman have got the wrong end of the stick in their reporting of a certain civic leader's being reported to the procurator fiscal.  As usual, however, one may rely on Ecclefechan Mackay (MA) of the Kinlochbervie Chronicle to give you the inside track, and identify the real scandal in today's edition of the north west's organ of record. Unfortunately, the publication is still only published offline and available within a 5 mile radius of Kinlochbervie. Here's a snippet of the relevant article, which I was able to have smuggled out.

Glasgow City Council leader, Gordon Matheson, has today apologised for a "gross error of judgement" after being caught playing away from home.  Matheson admitted performing a "sex act" at an undisclosed location in Cathcart last month in breach of council protocol.  The council confirmed police reported the matter to the procurator fiscal but it has been decided no further action will be taken.

The convention, instituted under former Lord Provost Pat Lally in 1876 as part of the "Glasgow Miles Better" campaign, requires councillors not to engage in sexual encounters outside of their own wards. The Labour politician, who represents the Anderston ward in the city, admitted that his behaviour had "crossed the boundaries which voters rightly expect me to observe" and expressed "heartfelt apologies" to his Linn colleagues for his "senseless" breach of etiquette. Opposition members were quick to condemn the council leader's slip. "It's a courtesy which we all expect every elected member to honour and observe," SNP councillor Jim McArdle said. "And it isn't always easy, I can tell you. I was in this pub up in the West End last week when this smouldering [redacted. redacted]."

Former baillie and city treasurer, Tam Scallion, described the Lally convention as "part of the fabric of Glaswegian civic life", continuing "I'm obviously very disappointed that the current leadership aren't upholding our cherished traditions. Glasgow deserves better".  Another former councillor who did not wish to be named, Pat Lally, 224, told the Chronicle: "In my day, a Dennistoun boy caught getting a sly handjob in Govan could expect his jotters. Deselected quick as you like. I tell you, it's not the city it was in my day."

One long-term Anderston resident and Labour voter, Jack Malloy, told the Chronicle: "We all felt really let down here, to be honest. Betrayed. You can't move in Anderston and City for cubby holes and shady nooks. The parking provision is excellent. I can't see what Cathcart has to offer that he can't get in spades here."

It is understood that the Labour party has accepted Matheson's apology and will continue to support him in his position as party and council leader. A spokesman said: "the Lally convention is a rule which has served Glasgow well, and will continue to serve the city well, bringing elected representatives closer to the people. "

13 January 2013

On the obscure Nordic horizon...

Is it a bird? Is it a plane? Is it a Pategonian burrowing owl? No! It's "Scandinavian-style social democracy", whatever that is.

References to the political systems of Nordic countries seem to be multiplying in the independence debate. Folk, keen to explore alternative models for smallish, prosperous states with generous welfare provision and low inequality, cast their eyes northeastwards, covetously, for opportunities to make off with Nordic blueprints for the sort of state an independent Scotland might try to become. Pete Wishart thinks that we'll reimagine Britishness as a loose, shared identity in these islands after independence, and think of England, Ireland and Scotland as forming a discrete unit of countries with shared historical, cultural and linguistic bonds, like the Swedes, Danes and Norwegians.

But are these shallow flirtations with little-understood systems, or serious proposals for shaping the sort of politics and state we might make of an independent Scotland? In practical terms, is it really a political comparison to set the heather alight and deliver a yes vote in 2014, or an obscure reference, lost on most folk, whose understanding of how states like Denmark actually work is limited to last night's Borgen marathon?

These are a few of the questions Michael and I put to Dominic Hinde in the first For A' That podcast of 2013.  Dominic is a doctoral researcher living between Stockholm and Edinburgh, has Green sympathies, and blogs over at Better Nation.  We also took a wee look at the developing political arguments around Trident over the festive season, and buttonholed it all with a chat about David Cameron, who is out to win your "hearts and minds" for the Union.

As usual, you can listen to it from here, or download it to your mobile gramophone for listening to later, from here, or on iTunes.

12 January 2013

"I'm issuing an injunction!"

I'm always interested in the representations of law you find in popular culture. That needn't just mean fictional portrayals of courts and lawyers.  Like folk in the real world, characters in drama bandy about legal concepts more and less accurately much more often than one might think.  While it's common to envisage the law as something external and official, situated in courts, and above and apart from most people's everyday lives, the reality is rather different.  Law saturates our day to day interactions. Quietly, mutely, perhaps, but it is practically impossible to get through a day without engaging with some legally significant concept, whether it is property ownership, leases, sales of goods, contracts, remedies for debt, divorces - and so on. 

I don't regularly watch BBC Scotland's River City, it must be said, but last week's episode caught my eye.  It includes an range of scenes from the sheriff court, in an increasingly acrimonious case about child residency. Many hoary old clichés were dusted off. Juliet Cadzow, the dragonish sheriff: pert, judgemental, Anglicised and bourgeois. In deference to the formality of the occasion, the other characters wore suits, appeared nervous. Legal perceptions of the relevant issues, and those entertained by the two characters most invested in the dispute, were substantially mismatched. This mismatch caused frustration, precipitating interruptions, and increasingly heated transgressions against the stiff, formal atmosphere of the courtroom.

The legal characters, the solicitors and presiding judge, repeatedly emphasised that cool decorum was expected. Allegations and awkward questions were to be met with equanimity.  The moral? Displaying emotion in courts gets your card marked as an intemperate villain, you lose, and your life is ruined. Law courts aren't terrifically interested in your private sense of grief or injustice.

I'm sure any Scots lawyers watching it would have squirmed when Cadzow's sheriff cried "I'm issuing an injunction!" - an English concept not known to the law of Scotland, which uses interdicts - but such inaccurate marginalia are hardly unknown in Scottish drama.  As I argued back in October 2010, in Scotland we almost never see the inside of our courts fictionally depicted, and where such representations do occur, they invariably incorporate at least some alien American or English legal concepts.

What struck me as interesting, however, was how far the rest of the episode, outwith the majestic confines of the fictional Clydeinch Sheriff Cour, and out from under Cadzow's gorgonesque gaze, also turned on legal ideas of property, debt, security - and even licensing laws, egad.  Canny but unscrupulous characters take advantage of legal information asymmetries, and of wealth and access to professional counsel, to screw over others without these advantages.

You can make the case, I think compellingly, that it is actually soap operas, and not our Kavanagh QCs and Rumpoles of the Bailey, which represent our pre-eminent legal dramas, depicting the overwhelming presence of law in society, with only very occasional, uncomfortable and generally unsatisfactory forays into courts when one character is prosecuted for clobbering another, or pursues a dramatically arresting piece of civil litigation. Soaps' storytelling is rooted in communities, with large casts, and their plots revolve around their businesses and their interactions (and the ubiquitous centrality of the local boozer). Legal ideas and interactions are pervasive. 

It is a commonplace among curmudgeonly lawyers that court dramas tend to distort the reality of legal processes, generalising from the exceptional or eccentric litigant, and accordingly, cultivate a misleading impression of how civil and crime justice functions.  You can make a parallel argument about the idea that legal dramas must include gowns, wigs, a mute jury and officious ushers. Most legal disputes in our society are resolved without anyone donning a horsehair peruke. Most legal thinking in the broad sense occurs outside the courtroom.  

11 January 2013

Another triumph for the Procurator Fiscal Service...

65 Tampering with nomination papers, ballot papers, etc.
(2) In Scotland, a person shall be guilty of an offence if—
(a) at a parliamentary or local government election, he forges any nomination paper, delivers to the returning officer any nomination paper knowing it to be forged, or forges or counterfeits any ballot paper or the official mark on any ballot paper; or
(b) at a local government election, he signs any nomination paper as candidate or in any other capacity certifies the truth of any statement contained in it, knowing such statement to be false; or
(c) he fraudulently or without due authority, as the case may be, attempts to do any of the foregoing acts.

9 January 2013

Angus Reid, January: Yes 32%, No 50%

No devotee of the Express, I managed to miss the poll which the paper commissioned from Angus Reid last week on Scottish independence. The first Scottish constitutional headcount of 2013, the Express poll sampled a relatively small selection of folk (just 573 respondents) on the national question, and on a second (to my mind, rather poorly framed, muddled) series of preferred constitutional alternatives, from the status quo, to "some powers", "more powers", and "full independence". Since devo-something is realistically off the table until after 2014, I intend to focus solely on the substantive findings on independence.

The pollster's January findings more or less echo trends we've seen a number of times before in offerings from YouGov and Ipsos-MORI: evidence of a substantial gender gap, and an age-taper in support for independence, from young 'un to auld yins. Overall, Angus Reid found support for independence held steady at just under a third of the electorate, with half of their respondents preferring to remain in the United Kingdom, leaving 16% as yet undecided on the constitutional question.

No great shakes in the gendered column either. Polls have consistently shown a gender gap in support for independence of 10% or more. This Angus Reid poll is no exception. Voting intentions vary 10% between men and women questioned, some 37% to 27%, with a slightly larger cohort of Scottish damsels (+6%) declaring themselves undecided.

Angus Reid avoid the thorny domain of correlating voting intention to social class, but they do disaggregate their results by the antiquity of their respondents. Even more so than is usual, the pollster has sampled a tiny number of folk in each bracket.  Despite this small sample size, the company's findings aren't exactly a revelation.  With the odd bump and hump here and there, support for Scottish independence tapers off as respondents get older, with the oldest cohort of respondents (over 65s) recording the lowest level of support for independence (24%) and highest levels of opposition (65%).  Exhibiting the estimable contrariness of youth, the youngest group of respondents (18 - 24 year olds) again recorded the highest levels of support for (39%) and the lowest level of opposition (41%) to the idea that Scotland might be better off independent.

7 January 2013

Corroboration reform: A false prospectus?

"I'd like you to do the same job you are doing now, but I've a score of new, extra tasks which you'll have to take care of as well.  Oh. And there will be no extra funding to pay for your new responsibilities. And I'm going to cut your budget in real terms at the same time. Haven't you a few efficiency savings you could make? Splendid. Toddle off, then, and get cutting."

A familiar predicament for public authorities in Britain these days, whatever their remit and jurisdiction. Shrinking budgets, and still the pressing clamour for this or that neglected topic or concern to receive the attention and resources they merit.  The Crown Office and Procurator Fiscal Service is no exception.  The draft Scottish budget for prosecutors totalled £108,100,000 in 2012/13, and according to current draft spending plans, will not increase in 2013/14.

In the meantime, our legislators cannot resist ratcheting up the costs, continuously supplementing the roll of new offences and charges.  In 2011, for example, Holyrood enacted the Offensive Behaviour at Football Etc (Scotland) Act, with additional costs envisaged across the justice spectrum, from the police, to court costs, legal aid for accused persons, to the Scottish Prison Service in cases resulting in additional custodial sentences being handed down. The Scottish Government estimated that the total cost of the new law to the prosecutors would range between £70,800 to £151,700 per annum, envisaging between 77 and 165 additional cases a year under the new offences. Per case, government statisticians worked out that prosecution costs alone would total £6,993 for every case tried by a jury with a rather cheaper price tag of £312 for summary cases, tried by judge alone.

Corroboration looks likely to be the primary object of legal controversy in Scotland in 2013. The Scottish Government seems set on eliminating the historic rule; the country's legal establishments are generally opposed to this measure.  As part of his 2011 Review, Lord Carloway commissioned an analysis of the impact of corroboration from the Crown Office. How many potentially successful failed to end up in court, because evidence in the case originated from a single source, he wondered?

Prosecutors examined files where the accused had been put on petition, but which were subsequently identified as "no further proceeding due to insufficient evidence". Unhelpfully, Carloway's tables are all higgledy-piggledy, but with a little sympathetic interpretation, you find that this process identified 458 cases, of which, it was estimated that 374 cases exhibited a sufficiency of evidence for prosecution, but for the requirement that evidence be corroborated, with 268 (58.5%) offering a "reasonable prospect for conviction".  The Review also analysed a second dataset, all cases reported to the National Sexual Crimes Unit in six month period of July to December 2010, where the accused was not placed on petition due to lack of evidence. The researchers found 141 such cases, of which, they estimated that 99% (140) had a sufficiency of evidence for prosecution, but for corroboration, estimating that there was a reasonable chance of conviction in 97 cases (68%).

If we get out a fag packet, and crudely generalise from these figures on the assumption that the last six months of 2010 is representative of the rest of the year, and the number of offences and rates of sufficiency and likelihood of conviction were stable, these figures might suggest that if Scotland abandoned corroboration, the National Sexual Crimes Unit might prosecute an additional 194 people a year.  There are a number of limitations with this approach, as Carloway himself recognised.  It is impossible, for example, to say how many cases the police did not refer to prosecutors because of a lack of corroborated evidence. Conclusions drawn on the basis of the relatively small number of cases closed by prosecutors on the basis of the rule likely underestimate - and potentially underestimate to a large extent - the number of new cases which the abolition of corroboration might put on the desks of procurators fiscal.  They gesture, however, towards the scale of the potential additional case-load.

Unlike many folk with an interest in Scots Law, I am not wedded blood and marrow to the concept of corroboration, but I do worry that the rhetoric used to justify the reform will prove misleading in practical terms. Exponents of the reform typically conjure up affective vignettes of those deprived of justice by the formalism of the rule. "Finally, people will get their day in court."  "No longer will victims be denied justice in the name of a rule come out of medieval jurisprudence".  On this account, you might get the impression that abolishing the rule will open the sluice-gates, daylight will shine in, and a slew of new cases will end up before our courts, with justice being dispensed on a far greater compass than at present.

This seems unrealistic.  Some people are always going to be deprived of their "day in court". Prosecution, court and prison capacity is limited. We get as much criminal justice as we are prepared to pay for. That is the case now, and it would continue to be the case if corroboration was abolished. According to official figures, in 2011/12 the police recorded around 858,000 crimes and offences, the Procurator Fiscal received just 276,000 criminal reports, and undertook criminal proceedings in court against 125,000 people. The reasons are complex and manifold, but the scale of the erosion in cases from complaint to prosecution is stark.

If recent reforms are anything to go by, and the state of the public finances does not alter, the cost of any abolition of corroboration is likely to be resourced from existing budgets to a very significant extent. While abolishing the rule will change the modality of prosecutors' decision-making, and bring non-corroborated cases within the compass of those which procurators fiscal may seriously consider bringing before the criminal courts, bare, unresourced abolition of the rule seems unlikely to significantly increase the actual number of cases which reach our criminal courts.

It is not as if the Justice Secretary is in a position to be financially open-handed, offering increased funding for legal aid, prosecution costs, or to cover those borne by the Scottish court and prison services, to pay for the additional trials and prison cells envisaged.  The case for the abolition of corroboration, as we've heard it, often seems to assume a level of redundancy across the criminal justice system which simply is not there.  

Whatever its limits, whatever injustices it visits in particular cases, the corroboration rule is at least reasonably objective.  In the absence of two sources of evidence, in general terms, a case cannot proceed.  It is also a public standard which prosecutors have to observe.  While it may not be a concept which your average punter may be au fait with in detail, it remains an externally comprehensible standard, which regulates the conduct of prosecutors' discretion.  

If, as seems likely, we eliminate corroboration but fail to extend resources made available for substantially increased numbers of prosecutions, it seems likely that only a small percentage of cases will continue to be tried, but they will now be selected solely on the basis on more qualitative, discretion-laden concepts, more or less impenetrable to those operating outside the system.  Carloway's study offers a flavour of the sort of calculations which prosecutors will be obliged to make in selecting which cases to prosecute.  Is the available evidence credible and reliable? Is there is a reasonable chance of conviction? 

If we abolish corroboration, these sorts of concepts will become gatekeepers, governing access to criminal justice. The concepts may be more contemporary and less formalistic, but they will perform a similar task to that historically served by the corroboration rule itself, limiting the number of folk who get their day in court. This may be a good thing, and the right way for these sort of decisions to be made. Rather than by meeting the formalistic requirement that the evidence against an accused person emanates from more than one quarter, prosecutors will have to use more of their discretion to decide which 125,000 cases or so make it before criminal courts. And like corroboration, the practical operation of these ideas of credibility, reliability and so on will inevitably bring with it its own body of disappointed complainers and victims. 

There is clearly a principled case for the abolition of corroboration, but the idea that we can get more and better criminal justice, cheaper, simply by excising a sometimes inconvenient rule of evidence from Scots law? At worst, that's a false prospectus for this reform, at best, an unserious exercise in wishful thinking.