28 March 2013

Poppy Wars.

The shirt is black with bright green lettering of three to four inches in height. On the front, it bears the legend "INLA". Flip it over, and it reads "FUCK YOUR POPPY REMEMBER DERRY", in similar lurid text.  Now, such a jabot isn't quite my style - I can't abide sloganising garments, and Leprechaun green on an ebony field combines unpalatably with my complexion - but if you caught sight of such a shirt, would you consider it conduct "severe enough to cause alarm to ordinary people and to threaten serious disturbance to the community"? 

Quite so, according to three judges of the High Court, who have determined that the outfit and its message - worn, I might add, at a Celtic vs Rangers match in Glasgow in September 2011 - constituted a breach of the peace. (You may be struck by the gap between the trial at first instance before the sheriff, and this appeal. Nobody said that the cogs of justice grind swiftly). The appellant, Kevin Maguire, appealed against sentence and conviction. At trial, two police officers who had lifted him outside Ibrox gave evidence against him.

[3] The police officers testified that, in the volatile atmosphere of a Rangers and Celtic match and its aftermath, it was likely that the insignia of this organisation would be regarded as offensive and inflammatory by Rangers fans, and that there was the potential for this to provoke disorder and disturbance. The Celtic fans, although cordoned off from the opposing support in the immediate vicinity of the stadium, would merge with the Rangers fans a few hundred yards down Edmiston Drive. The officers also considered that there was a potential for the reference to the INLA to provoke Celtic supporters too. They would not appreciate their football club being associated with such an organisation. The police thought that any reasonable person would consider the slogan relative to the poppy to be offensive and upsetting, likely to be inflammatory and to provoke disorder. This would apply particularly in relation to any members of the public attending the match who had served in the Armed Forces or had family or friends in the Forces. 

There seems to be no evidence that disorder actually occurred as a result of Maquire's top. Per contra, the appellant argued that donning the shirt was simply engaging in a "legitimate protest", and invited the Court to "bear in mind the right to freedom of expression under Article 10 of the European Convention" in its construction of the common law offence of breach of the peace.  This sits - to put it generously - a little uneasily beside the mitigation made on his behalf to the sheriff, in which his brief had argued that "the appellant had met with certain family members from Northern Ireland before the match and had been given the top as a present. It was maintained that he had been unaware of what the lettering represented."

Lords Carloway, Drummond-Young and Marnoch were having none of it. Writing for the Court, the Lord Justice Clerk concluded:

[8] In relation to the merits of the conviction, the test of whether a breach of the peace has been committed is well-known and settled. It is, in terms of Smith v Donnelly 2002 JC 65, whether the conduct is severe enough to cause alarm to ordinary people and to threaten serious disturbance to the community. It is conduct which presents as genuinely alarming and disturbing in its context to any reasonable person. If there is no evidence of actual alarm then, in terms of Jones v Carnegie 2004 JC 136 (at para [2]), the conduct requires to be "flagrant".

[9] Applying that test to the evidence before, and ultimately the facts as found by, the sheriff, the court has no difficulty in concluding that the appellant's conduct amounted to a breach of the peace. The actions of the appellant in wearing this top were not part of a legitimate protest. Rather they amounted to a deliberately provocative gesture, calculated to cause precisely the type of disturbance which the court referred to in Smith v Donnelly. His conduct, in the context of this football match and its aftermath, presented as genuinely alarmingly and disturbing to any reasonable person.

[10] The court does not consider that the appellant's right to freedom of expression was in any way be affected by his arrest and subsequent conviction. Even if the appellant does wish to engage in genuine protests, either in relation to Remembrance Day, the events of "Bloody Sunday" or about the proscription of the INLA, he has plenty of suitable opportunities in which to do so without intentionally provoking serious disturbance, including violence, in the community. The court will accordingly answer the first question in the negative, the second and third questions in the affirmative and refuse the appeal against conviction.

Context is clearly important, and the atmosphere when fans spill out onto the streets after an Old Firm match clearly differs from your ordinary saunter in the park. That said, isn't there an argument to be made that stepping out on any street in Scotland, one might encounter souls with backgrounds in military service? Might it be criminal in a recruiting town, known to have strong links with Scottish regiments, and less so in a spot sending fewer souls off to serve as sodgers? After all, conscription during World War II means that every family, give or take, is likely to have had a member who served in the armed forces in recent memory, who might look askance at the always controversial politics of (not) wearing a poppy around Remembrance Sunday.

A friend of mine in Oxford was recently assailed by a stranger in the street, who found her unadorned lapel sufficiently provoking to take to task for not wearing a poppy.  Another crony favours a white poppy instead, and found himself dragged into a furious row with a character in a pub, who thought the bleached flower was also "offensive and upsetting". His choice of white petals in lieu of blood red certainly provoked disturbance in that wood-panelled, lager-stained community. 

I am particularly struck by Carloway's distinction, dismissing the freedom of expression argument, between a "genuine" protest, and one which "intentionally provoking serious disturbance" in the community.  To my mind, intentionally disturbing the settled quiet of a community is precisely the object of most protests. Few are likely to prosper, or to promote their cause, without arresting the ordinary social course of things, drawing attention, making a hubbub. Which is not to say that Mr Maguire's fashion choices represented a wise move unlikely to cause a stramash outside Ibrox, but I'm not at all convinced that Carloway's neat distinction between authentic protest and inauthentic protest holds together terrifically coherently.

What's more, can it really be convincing that "the court does not consider that the appellant's right to freedom of expression was in any way affected by his arrest and subsequent conviction"? I think not. From the appellant's point of view, the message his outfit communicated brought him into police custody, pulled him before our courts, and has seen him banned from football for two years under threat of further criminal sanctions. His freedom of expression rights under Article 10 of the European Convention are clearly engaged by this state action and penalisation.  If this isn't a case which even engages fundamental rights of free expression, then I struggle to think of any case which does.

There may be an argument that the state's interference with his rights can be justified under Article 10's second paragraph, and that the criminal regulation of his expression serves a legitimate aim, is necessary in a democratic society and represents a proportionate response to the mischief contended with. It is disappointing, however, that the High Court seems to have contented itself with this wrong-headed, sweeping rejection of the bare applicability freedom of expression.  It makes for an impoverished analysis.

25 March 2013

2014 Euro Elections: The power of three?

At this weekend's Spring Conference, the SNP picked its slate of six European candidates from fifteen who have been husting across the country, making the case for their candidacy, over the last few weeks.  The remaining six will be ranked by the party membership on a one-member-one-vote basis over the summer. The two incumbent MEPs, Alyn Smith and Ian Hudghton, survived the Conference's verdict, along with Toni Giugliano, Chris Stephens, former Salmond special advisor Stephen Gethins and Tasmina Ahmed-Sheikh, who counts the SNP as her third party in as many years, formerly having held memberships of both the Tory and Labour Parties.  

From the conference scuttlebutt, it seems that the leadership were quite keen to see Tasmina prosper this weekend.  Just an unlikely coincidence I'm sure, just serendipity, that Ahmed-Sheikh's daughter was hailed as the SNP's 25,000th member on the eve of the conference. Subtle it ain't, but I suppose such machinations are to be expected in all political outfits, where happy accidents can be found to puff the objects of official favour. It remains to be seen where the party membership will bestow their benevolence.  Those candidates nominated in first and second place, all things being equal, are assured a seat in the European Parliament.  Interestingly, if the current polls are anything to go by, the SNP has a sniff of a third.

How European Elections Work

I find that many folk are a bit mystified by how European elections work. Here's a brief summary. Firstly, Scotland is a single constituency, and from 2009 onwards, elects six MEPs.  These are selected on the basis of a simple quota system.  Like the regional vote in Holyrood, each party nominates and ranks a list of candidates. On election night, returning officers tot up all of the votes cast into national totals.

These are then divided by the number of seats the party has already won in the region + 1, with the party with the highest tally winning a candidate in that round.  In practice, that means that the party winning the highest level of support takes the first MEP, and their vote is divided first by two, and then by three if they take a second seat.  Clear as mud?  Consider this worked example. Consider the allocation in 2009.

As you can see, the Greens never really had a look in here, the scrap for the sixth and last Scottish MEP being duked out between Labour and the SNP, with only 7,925 votes between them, and the Tories due a second MEP too before any Scottish Green got to set foot in Brussels.

With the fundament falling through the Liberal vote after 2010, both the SNP and the Greens - and the Tories too - smell an opportunity for gains, and they're right to do so.  Projecting ahead here is a little tricky. The constituency which turns out for European elections isn't the same as materialises for Holyrood and Westminster polls, and accordingly, neither are good guides to what levels of support parties might expect in 2014, save in general terms about who is up, and who is down.

The drift of the Liberal vote also poses its predictive challenges. The Scottish election survey has convincingly shown that the SNP's win in the Holyrood election of 2011 wasn't attributable to the direct transfer of drifting Liberal Democrats, but an ensemble piece, pulled together from the electorate which had previously supported all of the SNP's rivals. No Scottish poll has yet asked about voting intentions for Europe.

For mischief, however, let's be crude about it, and candid about our crude assumptions. Say, for the sake of argument, that the number of votes cast in 2014 are the same as 2009. Let's assume too that the SNP, still doing well in the polls in Holyrood, add another 5% to their 2009 showing of 29.1% of the European vote, taking them up to 34.1% of all ballots cast.  For the model, say too that Labour, the Tories and the Greens are steady at 20.8%, 16.8% and 7.8% of the vote respectively.  Now let's snaffle 5% off the Liberal Democrats, leaving them with just 6.5% of Euro ballots cast.  

Given what we know about recent local and Holyrood elections, these assumptions don't seem entirely unreasonable. If the 2014 European elections were to pan out along these lines, who might benefit from George Lyon's evaporating vote? The tantalising answer is: it's all up for grabs.

SNP gains and Liberal losses reorders rounds one to five, with the Conservatives gaining their first MEP in the fourth rather than the third round, while the SNP snares its second in round three instead of four, per 2009. Instead of being narrowly trumped handily by the Labour Party in the sixth round, a 5% bump in support combined with a -5% Liberal slump would put the third-ranked SNP candidate very much in contention much earlier on, due an office in Strasbourg and Brussels as early as round five. An opportunity here which clearly focussed minds in the party conference in Inverness this weekend, and promises to make the ranking contest between Smith, Hudghton, Giugliano, Stephens, Gethins and Ahmed-Sheikh quite the scrap. 

On these simple assumptions, round six of the allocation doesn't have the appearance of a closely-fought mêlée, though reality has the habit of upending one's most cogent assumptions.  On this model, Labour would retain its second MEP in the sixth round, 18,796 votes ahead of the nearest contender - now the fourth-ranked SNP candidate - and 34,485 in front of the Greens. 

While in Holyrood in 2011, the Scottish Greens proved unable to capitalise on the Liberal purge, perhaps Europe will give Maggie Chapman an opportunity to corral more wayward Liberals, shorn of the presidential Salmond vs Gray logic which dominated in 2011.  If she's to have a snowball's chance in hell to be in contention, she'll have to push the Green vote (higher in European elections in recent years than in Holyrood polls) to the sorts of levels which the Liberals were able to command in the pre-coalition era.

A rather modest opportunity here too for the Scottish Conservatives to achieve that most elusive of outcomes - a Scottish political gain - if only they can keep up their vote. And, for that matter, for the Liberal Democrats to save a little face, if their losses aren't as attenuating as I've projected. Lyon might survive yet.  


In an earlier edition of the blog, I magisterially cocked up the all important last-stage calculation (unaccountably, I mixed up my dividers) hence any changes you might detect in the charts or their interpretation.

24 March 2013

Remember, remember the 18th of September...

So now we know. On Thursday the 18th of September 2014, Scots will traipse through the late summer sleet to determine the future of the nation and the unity of the United Kingdom.  Strategy and calculation has characterised the SNP parliamentary politics this week in the build up to this weekend's Conference in Inverness.  In Holyrood, Alex Salmond not only named the date of the poll, but also dipped back into the unfinished business of the invasion of Iraq, leading a debate ten years after Holyrood, by a narrow majority, endorsed Tony Blair's blueprint for war. 

Both announcements were on the agenda on this week's edition of the For A' That podcast. For episode number nineteen, Michael and I were joined by Stewart Lochhead, who compères over 3 Men in a Blog.  On the menu this week, did Labour in general and Johann Lamont in particular strike the right tone in response to Salmond's announcement? I confess to a certain fondness for the Labour leader's stylings, and got a wee bit personal, with a reflection inspired by Kate Higgins on the significance of the referendum for all of those past generations of Nationalists, now no longer with us, who ground on through the many lean, unpromising years to make this poll possible.

On Iraq, we took up a theme raised in the Scottish Parliament by Labour MSP, Jenny Marra. Was discussion a ten year old conflict an apt topic for discussion in parliament, or a sleekit constitutional calculation by a cynical Scottish National Party? Lastly, we came back to the undecided middle which will in all probability decide the referendum one way or the other. Although no poll as yet has shown a majority of independence, other research suggests that a majority wish to have all decisions about tax, spending and welfare made in Scotland.  How to explain - and bridge - that gap?

On a technical point, thanks again to all those who contributed to our podcast costs. Due to your largesse, not only were we able to cover our year's hosting costs, but I've finally been able to upgrade by shoogly sound rig to something more suitable.  Hereafter, I shouldn't sound like the man off the old-fashioned wireless, or a congested guppy, broadcast from the bottom of a fish-tank. 

You can either download the show via iTunes or Spreaker, or listen to our discussion directly here.  If you're new to the podcast, our back-catalogue is all online, including Michael's latest Scottish Independence Podcast interview with Rev Stu Campbell, the voice behind the Wings Over Scotland blog from earlier on this week.

21 March 2013

Graham Spiers: One for the Memory Hole...

A hat-tip to Love and Garbage on twitter for this sterling example of intellectual consistency and serious-mindedness from Herald football columnist, Graham Spiers. The topic: the Offensive Behaviour at Football Act and subsequent police enforcement measures taken under it.  In an article headlined "How the SNP have made policing fans a minefield" published yesterday, Spiers suggests that the Act was  

"... a piece of legislation that many - this writer included - had doubts about. The act seeks to do what it says on the tin: stamp out “offensive behaviour” such as bigoted or sectarian expression. There has been plenty of that around the Old Firm over the years, so to that end all decent-minded people felt that the law should crack down on bigots."

Cataloguing what he now perceives as the Act's problems, Spiers continues:

"Someone said to me: “A law never works if it cannot be objectively measured.” This absolutely captures the problem of the Offensive Behaviour at Football legislation. We got a glimpse of the mess the Scottish government was getting into when, in June 2011, Roseanna Cunningham, not having realised how much she had chewed off, had to frantically backtrack and delay the processing of the bill.
That day it took a mere half hour of questions to realise that Alex Salmond and the SNP, wobbling towards their legislation, hadn’t quite appreciated the acuity of supporters who wanted to defend their right to hold political or cultural positions in song and slogan. The Offensive Behaviour bill was duly delayed.
But its final clarity, when put on the statute book last year, was scarcely enhanced. It has all become quite a dog’s breakfast. Meanwhile, football supporters in Scotland feel like they are under a type of surveillance once associated with life behind the old Iron Curtain."

All of which gives the impression that the judicious Mr Spiers was a long-standing critic of these proposals, who set out these concerns about the clarity of the legislation and its definitions at the time, sorry to see his predictions about the illiberal and reactionary potential of this legislation borne out in practice. The only problem with this little pen-portrait is that it's a self-serving counterfeit.

Spiers refers to Roseanna Cunningham's Justice Committee appearance in 2011 which was not, with the best will in the world, her most triumphant parliamentary performance. He neatly glosses over his own. On the 6th of September 2011, the Scottish Parliament's Justice Committee had the benefit of Mr Spiers' own evidence on the Offensive Behaviour a Football Bill as it was being rammed through Holyrood. No doubt he put his concerns to our tribunes? Articulated these "doubts"? Quantified those anxieties about how this vaguely-drafted piece of legislation might operate in practice?

Er. Not really. Quoth Spiers:

"I am in favour of this bill in principle. If someone asks whether I want to live in a country where thousands of people can shout about the Pope and say “F the Pope”, I say that I do not want that in a football stadium in my country. In principle, I am in favour of the bill."

Okay. So that isn't exactly a doubt-wracked assessment of the draft legislation, but perhaps further on in his testimony, Spiers really got to grips with the detail of the Bill, and the concerns many folk articulated at the time about the scope of its provisions? Fife SNP MSP Roderick Campbell, himself an advocate in a past instantiation, raised some of these concerns with him in the Committee session.

Roderick Campbell: "I will follow up on three themes that were developed in the earlier session. I would like to hear the panel’s views on the suggestion by the Rangers representative in the previous session that by legislating we are using a sledgehammer to crack a nut, and any comments on the context and clarity of the legislation, particularly from Graham Spiers and Pat Nevin."

In all fairness, Spiers' response was not the model of clarity, but the gist of his answer and the scope of his doubts was not that the Bill was too broadly drafted, overcriminalised football fans or threatened free expression, but that its provisions may be extraneous to requirements, given existing common law and statutory offences which apply to conduct in and out of football grounds.

Graham Spiers: "There is probably some substance to that complaint. As much as I wish the bill well, it seems to me—although I am not an expert on the statute book—that there are already contingencies in place such as religious hate crime law, breach of the peace, and other laws that give the police powers such as banning orders to apprehend supporters. There is a lot of stuff currently on the statute book that could deal with many of these problems, so I am a bit mystified as to why we must have an extra load of law—if I can put it in that way—to deal with the issue.

I suppose I need to qualify that by saying that I have been aware this morning that a lot of people are complaining about the anomaly between crimes that are committed in a football stadium and crimes that are committed in the street or in a bus shelter. People have said that that is odd, but a part of me says that it is not. I have been going to these games for decades, and there can be a particular poison in a football stadium. The expression of that may be found out in the street, on the factory floor or wherever, but it nonetheless finds particularly acerbic expression in a football stadium, so a part of me wants some type of specific law to deal with that.

That answer is perhaps as clear as mud, but I hope that you get what I am trying to say.

As Spiers notes in yesterday's Herald piece, the legislation he approved of in September did not differ materially from the final text adopted by the Scottish Parliament in November.  He looked at the "dog's breakfast" in the autumn of 2011, and enthusiastically endorsed it.   

Better one sinner repenteth and all that, but mightn't the entire debate have been improved, if folk like Spiers hadn't given the Scottish Government spurious political cover for this cobbled-together enterprise, had actually read the draft legislation properly when it really mattered, rather than composing self-righteous jeremiads now, when the reactionary legislation which Spiers himself helped to get on the statute book is enforced by the police in a predictably illiberal fashion?

19 March 2013


And we're up to episode number eighteen of the For A' That podast. Today's features an island-hopping theme, kicking off with Cyprus, vaulting over to Shetland, gliding over the People's Republic of Bute, and resting up on the sovereign territory of the Federated Microstates of Rum, Eigg and Muck (those schismatic Cannaites, presumably having gone their own way. Splitters.)

On this week's show, Michael and I were joined again by Natalie McGarry, who will be a familiar face to many of you from her appearances on Scotland Tonight and was our first guest on the podcast, four months back, in episode number two.  She's also currently in the running, along with fifteen other candidates, to be one of the SNP's MEP candidates in the 2014 European elections.  This long list will be trimmed down to six at the party's Spring Conference, which will then be ranked by the party membership in a postal vote in July.

On this week's show, we touched briefly on Cyrpiot banking scandals, before mooting home rule for Shetland. A daft notion? Self-determination which it behoves those who favour Scottish independence, in peril of inconsistency, awkwardly to support? Last week also saw the publication of Lord McCluskey's proposals to Scottish Ministers on the regulation of the Scots press - and it turns out, anybody with a keyboard, a blog, or a twitter account, just about anywhere in the world. The issue has been well covered elsewhere in the blogosphere. We chew over (and by consensus, spit out) His Lordship's recommendations, their desirability and workability.  

I asked Natalie and Michael what they made of the referendum franchise proposed by the Sottish government last Monday.  Bracketing the legalities, we also discussed whether the SNP's decision to disenfranchise prisoners in the referendum represented canny politics, evading controversy, or represented "yet more dispiriting evidence of the SNP's conservatism", as one soul put it to me last week.  The discussion broadened out a bit into the Nationalists' attitudes to human rights norms. Michael has blogged about the two human rights futures offered by the SNP and Westminster governments respectively.  With my sceptical bunnet on, I asked whether Alex Salmond's new-found poise of the ardent human rights defender really cuts the mustard, given the SNP's recent record on political controversies which have turned on fundamental rights.

As usual, you can tune in directly here, sign up to our RSS feed so in future the podcast comes to you, or download the sound file via Spreaker or on iTunes.

12 March 2013

Lag's law: no prisoner votes in the independence referendum...

Today, the Scottish Government have introduced the "paving Bill" to Holyrood which will finally settle the franchise for the independence referendum in 2014. If passed, it will finally extinguish the hopes of expats, diaspora Scots and those living furth of Scotland who wanted to vote in the poll.

Much of the attention has zoomed in on the enfranchisement of 16 and 17 year olds, which ministers hope to affect by establishing a Register of Young Voters alongside the local government register. It is envisaged that this young voters roll will not be published.  

I was more interested in section 3 of the Scottish Independence Referendum (Franchise) Bill, which provides that "a convicted person is legally incapable of voting in an independence referendum for the period during which the person is detained in a penal institution in pursuance of the sentence imposed on the person". Those on remand, awaiting trial, will accordingly be able to vote, either by proxy, or by post. In the Policy Memorandum which accompanies the draft proposals, Ministers make two points:

"While the franchise at the referendum is a matter for the Scottish Parliament to determine, the franchise in Scotland (as throughout the UK) is a matter for the UK Parliament.  The UK Government announced in November 2012 that it would ask a committee of parliamentarians to consider a range of options set out by the Government in response to successive rulings by the European Court of Human Rights that the UK's ban on prisoners voting in elections to state legislatures breaches the European Convention on Human Rights.  The Committee will report later in 2013. The ECHR ruling (and human rights case law) does not related to referendums, and convicted prisoners will not be able to vote in the referendum irrespective of whether UK electoral law is amended to extend the vote to prisoners for parliamentary elections before the referendum in 2014."

Despite the digression about the UK government, in essence, this means that Holyrood could but won't enfranchise prisoners, if it passes this Bill.  My question is, can they get away with it? In a post from last October, Love and Garbage thought not.  The Policy Memorandum doesn't provide any evidence to support its claim that referendums can be distinguished from elections, when it comes to prisoners' voting rights. Like all devolved legislatures, Holyrood is charged in its founding documents to observe the rights protected by the European Convention. Unlike Westminster, the Scottish Parliament can't assert sovereignty and shrug off the European Court's decision in Hirst v. the United Kingdom, which held that our blanket ban on prisoners voting was incompatible with the Convention (but didn't hold that all prisoners in all circumstances should be granted the right to vote).

Prima facie, the Scottish Ministers seem on solid ground. If we look at the section of the European Convention which recent prisoner voting rights litigation has been founded upon, it does seem to limit the ambit of the protected right to elections, as distinct from referendums. Article 3 of Protocol 1 to the Convention reads as follows:

"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the people in the choice of the legislature."

The language used seems dispositive. On its face, A3P1 only applies to elections - not to referendums. The explicit reference to the "choice of the legislature" seems under underscore the point. If you dip into the European Court's legal archive, you'll find this understanding bourne out in the jurisprudence. See, for example, Bader v Austria decision of 1996 which held that A3P1 protections didn't extend to referendums, and more recently Niedzwiedz v Poland in 2008, concerning a complaint that the applicant had been deprived of a vote in Poland's referendum on EU accession. The Court explicitly held that:

"... the obligations imposed on the Contracting States by Article 3 of Protocol 1 are limited to "the choice of the legislature" and do not apply to the election of a Head of State or to referendums". 

That seems plain enough. Litigious prisoners with ardent pro- or anti-independence views will not, in all probability, have much luck in persuading Scottish Courts that the proposed disenfranchisement violates their fundamental rights, but we might feel a wrinkle here. In Hirst No. 2, the Grand Chamber of the European Court said (at para 59):

"... the right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion".

In 2014, people in Scotland will decide collectively on whether or not to become a sovereign state. It is difficult to conceive of any more fundamental exercise of democracy than that.  While the European Court has held in the past that the language of A3P1 excludes referendums, is there not at least an argument to be made that a referendum on self-determination is not as other referendums, and accordingly, the principles of enfranchisement articulated in Hirst ought to apply, that prisoners ought to have a say?

A formalistic construction of the Convention clearly supports the Scottish Government position, and legally, I'd expect the proposed limits to the independence franchise to be upheld as compatible with the European Convention. One has to wonder, however, whether depriving those in jail of any say in their country's future abides by the spirit, if not the letter, of the European Court's judgment in Hirst, or represents "effective and meaningful democracy governed by the rule of law" where "universal suffrage" is a "basic principle" worth upholding.  Even for the 7,500 or so folk who are currently bidies-in with Her Majesty.

11 March 2013

Vote Yes, or the Kitten Gets it...

Pin back your ears, comrades! The latest episode for the For A That podcast is here.  We're now up to episode seventeen of the show, while Michael has hit nineteen with his Scottish Independence Podcast series. We're very grateful for all your continued interest and support. 

Earlier on in the week, we heard from Pat Kane, on independence, toxic masculinities and the high road and low roads which open before us in the independence debate.  

On Sunday, our guest this week was Lynda Williamson from Newsnet Scotland (@snowthistle). Up for discussion this week, I asked Lynda about why she had moved from being an SNP sympathiser to greater enthusiasm about the Scottish Greens, from which a short organic discussion grew about the virtues and vices of localism, and Nicola Sturgeon's pledge last week, that the SNP would entrench local government in the constitution of an independent Scotland. 

Michael had his suspicions about Alistair Darling's reported qualms about written constitutions. Cui bono, we wondered? 

On more critical form, I put some Marxist-inspired doubts about Scottish independence from the Red Paper Collective to Lynda and Michael.  Leftie independence supporters often suppose that regaining Scottish sovereignty will be a way to challenge the political power of capital. Is this a plausible contention? 

In the context of Chris Huhne's sentencing today, we also had a wee chat about whether the punishment meted out to folk in the public eye should be the same as that imposed on Joe Bloggs convicted of the same conduct.  Per my Nemo Me Impune Lacessit post of last night, I contend there might be a case for harsher penalties being imposed. Lastly, our cynical coven had our doubts about whether sending folk kitten memes are really the best arguments available to us to persuade still-skeptical Scots of the virtues of the independence. Oughtn't YesScotland to toughen up and ditch the cutesy felines? 

As usual, you can press the "play" button and loaf around here, or alternatively, download the show to your favoured device from iTunes, or from Spreaker.  For those of you who prefer to lie back and let the podcast come to you, you can access our RSS feed here.

10 March 2013

Public figures & the "noble lie" of criminal justice...

When Tommy Sheridan was convicted for perjury, a small minority of commentators expressed certain qualms about his prosecution. The argument tended to go something like this. How can it be right to single out one perjurer from amongst the thronging host of witnesses who lie to Scottish courts, day in day out, while leaving the rest unpunished? Why try Tommy? And where does his prosecution leave the principle of equality before the law, anyway? Surely all should be tried, or none if even-handed justice is to be dispensed to the lieges.  While this sort of logic may appeal to the committed theoretician, it shows a woeful lack of sensibility about how criminal justice really works in this country most of the time.  

If you kill a fellow citizen, chances are you'll be detected and end up in the dock. If your spouse takes your driving points, you are unlikely to be caught in the lie, or face prosecution for the offence. It might be a little far to characterise our ideas of criminal justice as a "noble lie", but the fact is that we don't fund our criminal authorities - police, prosecutors, courts - anything like enough to even approach "zero tolerance" enforcement of our innumerable criminal statutes. And a damned good thing too, you might well think, given how broadly many of their offences are framed.  It makes for an uncomfortable irony, but the justness of our society now relies to great extent on not enforcing our laws.

Although folk often overlook the detail, we've also invest our prosecutors with discretion about whether and how people who've probably committed offences are prosecuted. Theoretically, at least, this involves an individual assessment in all the circumstances of the case whether it is in the "public interest" to proceed and an assessment of whether there is a sufficiency of evidence.  If we pan out somewhat, however, we see that prosecutors collectively have ideas, influenced (often legitimately in my view) by politics, about what  offences, what agenda, should be a priority interest for police and procurators fiscal. Football offences furnish a convenient recent example. Devotees of Crown Office press releases will have noticed an upturn in the number of football-related cases which are reported therein. Even relatively minor offences generating a football banning order are now treated as individually newsworthy.

Quite apart from being a process characterised by equal treatment in practice, our criminal justice selects salutary examples, and metes out penalties pour descourages les autres. The discipline of criminology has studied this phenomenon in depth. Invariably, the number of crimes reported to the police are lower than the number of crimes committed. The number of folk actually charged with offences shrinks the figure again. And the number prosecuted and convicted, again.  Our are jails may be stuffed, our prosecutors overtaxed, our criminal courts crammed, but the work of these formal mechanisms for delivering criminal justice are only the visible tip of a far deeper berg of unprosecuted, untried criminality.  This may be an unsettling thought.

Tomorrow (or today if you are reading this on Monday morning), Chris Huhne and Vicky Pryce will be up before the beak, to hear what sentences each will bear for the offences they have been convicted of committing. This last week, my cronies have been having a lively debate about whether public figures should be treated more harshly than John Doe, convicted of the same offence.  

The motto of the Crown in Scotland is nemo me impune lacessit: nobody provokes me with impunity. Sheridan was convicted of a fraud on the court, of conniving to employ the jurisdiction of the Court of Session, and its powers, dishonestly to acquire  £200,000.  If I dipped into your bank account and made off with equivalent sums, I doubt you'd feel much sympathy for my prosecution, on the basis that proceedings had been discontinued against a petty fraudster, who was only able to acquire a few hundred quid to fund an instantiate addiction to Elvis memorabilia.

For me, folk like Sheridan and Huhne can expect no mercy from our justice system. The effectiveness of criminal justice is fundamentally bound up in the image it projects, the story it tells and the deterrent anxieties it sometimes provokes. It can cope with enforcement of criminal statutes which is less than systematic. It can ignore petty perjurers in minor summary proceedings. Indeed, it arguably could not cope, at current resource levels, with systematic prosecution even of part of our criminal law. It struggles, however, to shrug off consequential people in the public eye, who might as well have set out to undermine its precepts and authority. The offence committed may be similar, but only one offender risks putting the legitimacy of the whole edifice to the question.

Folk talk about "public confidence" in our criminal justice system. Cynical though it might sound, often as not, it seems to me this "confidence" means entertaining seriously misguided ideas about the extent to which the law is really enforced. It means buying the noble lies and habitually unapplied principles of justice which critics of the Crown Office suddenly felt were important in assessing whether serving an indictment on Sheridan was equitable and fair.  Our courts can soak up their share of day-to-day perjurers, and leave most folk who dishonestly take speeding points unprosecuted. Their very basis, however, is undermined when people in public life, and particularly politicians who are guilty as sin, do their sleekit darndest to fib their way out of their predicament.

Nemo me impune lacessit.

8 March 2013

Better Together for the Rapture & the Last Days!

Mary Fee MSP may not be a household name in Scotland. She may not be a household name in the West of Scotland, which elected her to the Scottish Parliament in respect of the Labour Party in 2011. 

She is, however, someone who clearly takes her new responsibilities in the parliament seriously, and is keen to air and answer her constituents' concerns in the great public debates of the day.  Recently, she has been approached by people she represents, anxious for reassurance that all foreign travel shan't be cancelled immediately when Scotland becomes independent, and their passports would still be good for the occasional jaunt to sunnier climes  Reasonable concerns, you might well think. To allay the anxieties she had encountered "on the doorstep", the good Mrs Fee tabled a question in parliament last week...

"To ask the Scottish Government when a Scottish passport system will be in place if Scotland separates from the rest of the United Kingdom."

Fee also seems keen to visit foreign embassies after independence too. And who could hold that against her? Many of them have pleasing catering facilities, the occasional free glass of fizz, attractive marble interiors and beguiling neo-classical façades. In supplement to her original enquiry, she asked "Will Scottish people have access to British embassies around the world after separation?", which I assume really means, will we receive consular protection from a foreign power? Springy External Affairs Minister, Humza Yousaf couldn't resist playing the smart Alex in response to these questions, saying:

"Mary Fee can reassure her constituents that we have always said that we would have inclusive and open citizenship—unless she has information that the United Kingdom Government will give dual citizenship to people of every nation on this earth except an independent Scotland. We will give details in the white paper later this year. The member can reassure people that the sky will not fall in, the earth will not swallow up her constituents and the Messiah will not have to postpone his second coming, come an independent Scotland."

Answer came there none. Parliament toddled ponderously on. Darth Murdo Fraser asked about wind turbines. End of story? Gloriously, not so. In defiance of all satire, Mrs Fee didn't shrug this off as the impertinent answer from a pert young man. Oh no. Instead she seems to have regard Humza's jesting reference to the Messiah as a scandalous piece of religious provocation.  To all religions. Including the ones without any creed of messianic prophecy.

“I asked the Scottish Government a sincere and genuine question on how a new Scottish passport system would operate if Scotland breaks away from the UK, and for Humza Yousaf to show his contempt and derision for constituents that have come to me is a disgrace and unworthy for the position he holds in the Scottish Government. It is also offensive to anyone of religion to claim that the Messiah would not have to postpone his second coming if Scotland separates from the United Kingdom next year. My constituents deserve better and I will continue to represent their views, concerns and questions in the Scottish Parliament, while members of the SNP Scottish Government mock and jeer at such concerns.”

Try to wrap your noggin around that one. Not even Dawkins gets true believers riled up this easily.  For what it's worth, I always harboured a nervous suspicion that the Messiah would reappear in Cowdenbeath. Now there's a positive case for the Union: Better Together for the Rapture, arriving right on time. After all, it's cold out there, an independent Scotland's experience of the Last Days would be awfully unpredictable, and we sinners could do with the company...

6 March 2013

♫ You take the high road and I'll take the low road ♫

As eager-beaver listeners cannot but have noticed, there was a certain gap in our routine For A' That podcasting last Sunday.  Just a wee dab of damnum fatale. In compensation, we've two episodes of the show scheduled for this week, going back to our usual structure of one of Michael's Scottish independence podcasts appearing on Wednesday, and us, back to our usual Sunday spot.  

Our guest today was Pat Kane, scribbler, chanteur, and currently a board member for Yes Scotland.  Up for the blether this week, who are Britain's narrow nationalists now? Theresa May's human rights trolling, high roads, low roads, ambivalence and storytelling in the Scottish independence debate. Pat asks, is folk singer Karine Polwart right? Last month, she wrote:

"Let the Yes campaign be positive and hopeful, yes. But let’s allow it to be, where it needs to be, angry and bold too, please. And let’s harness more imagination to the urgent transformative telling of better stories about how we want to live."

One year since it came into force, we also had a wee chat about football, masculinity, sectarianism, and the Offensive Behaviour at Football Act. A brave public health measure, exorcising the country's sectarian ghosts, or an instrument which has empowered the police to treat fans in heavy-handed ways? A way of addressing Scottish cultures of toxic masculinity, or a threat to basic rights and freedom of speech?

To tuck away the show for later consumption, you can download it from Spreaker, or from iTunes.  Alternatively, you can listen to our discussion with Pat right away, right here. We'll be back, as usual, on Sunday afternoon.

4 March 2013

Just how many ECHR cases did Britain lose last year?

In brief supplement to yesterday's post about the Tories' rekindled enthusiasm for denouncing the European Court of Human Rights, I thought it might be convenient, if you are fending off Euroskeptic tabloid hacks in your own life, to arm you with a little data. 

Take last year. 2012.  During this period, how often do you think the dastardly, meddlesome, hyperactive European Court decided to make judgments in cases lodged against the United Kingdom? How many adverse decisions can Theresa May realistically hope will patter off Britannia's shield per annum, if her preferred outcome of withdrawing from the Court's jurisdiction were to be realised? From what volleys of European judicial folly will Lord Chancellor Grayling protect us?

The vanishingly small, ridiculously wee, answer is 10 judgments. 10 adverse judgments against the United Kingdom all year. In 2012, the Court issued 24 judgments in respect of 35 UK applications.  Of those 24 judgments, 13 found that Britain had not violated any protected human right, while the remaining judgment was decided without resort to the merits of the case.  By contrast, the Court rejected 2,047 applications against the UK as "inadmissible" in 2012.  

This isn't the place to go into the Court's jurisprudence on admissibility. Sufficeth to say, these cases failed, Britain didn't have to defend itself on the merits of the cases, and in most instances the UK Government wouldn't even have cause to have heard about them. The European Court only communicates the detail a small percentage of complaints to respondent governments, just 48 applications in respect of the UK in 2012. We can therefore chalk all inadmissible cases in the UK "victory" column. And 2012 wasn't unrepresentative.  While the number of unsuccessful, inadmissible cases was higher in 2012 than the previous two years, in 2010 and 2011, 23 and 30 applications respectively against the UK were decided by a judgment of the European Court.

So now we know. Last year, amid all the hubblebubble of political controversy in this country, the fiery rhetoric about a Strasbourg which was by turns micromanaging and incompetent, Britain lost a miniscule 0.5% of all cases decided by the Court, and 42% of all judgments handed down.

Just how many fewer cases would Cameron, May and Grayling think appropriately deferential to Britannic civilisation? How many fewer findings of violation wouldn't represent a grotesque affront to democracy and war on the sovereignty of the Westminster? Perhaps the double figures offend. Nine judgments? Five? One? None?

In fairness to May's argument, her beef isn't just with the year-on-year rate of judgments against the UK which the Court pronounces. She's griping primarily about the duty to comply with the tribunal's past judgments, particularly about the incompatibility of extraditing folk to countries where they are likely to be tortured with fundamental rights. It's a grumble of someone observing their obligations in international law unwillingly. In fairness too, if there's no movement from the UK government on prisoner voting rights, we might expect these figures to increase, perhaps substantially, over the next year or two. In general, however, these bare numbers speak to the practical inaccessibility of the Court to most applicants. Their petitions may be received and examined by Court staff, but only a tiny number are ever likely to catch the judicial eye, and be subject to a recognisably adversarial, judicial procedure. 

And yet, all that despite, the Conservative victim fantasists continue to bark, bay, blubber and groan, unabashed.

3 March 2013

Theresa May's human rights trolling...

As some of you may know, I'm completing my doctorate on the European Court of Human Rights. I'm particularly interested in its unsuccessful cases, how the Court's work has evolved in practice the last two decades, and the arguments used by the diplomats, politicians and NGOs who have contemplated institutional reform since the 1980s. 

It's undeniably a tribunal whose scope and character has dramatically altered since it sprung into being in 1959. In 1959, the Council of Europe had thirteen members. During the 1990s, the number of states ratifying the Convention increased exponentially, vaulting from 23 states in 1990 to 41 by the year 2000. Today, 47 states have bound themselves over to protect the fundamental rights set forth in the Convention, Montenegro the most recent, in 2006.  

The Convention's expansion across Europe has precipitated a startling increase in the number of decisions which the Court is called upon to make. Earlier last week, I pinned down this rather startling statistic. Of all of the decisions made by the Court since 1985, 95% were adopted between 1998 and 2012. 20% of all of the Court's judgments and decisions between 1985 and 2012 were adopted last year.  Almost all applications are unsuccessful, rejected in a terse, unreasoned decision-letter. Judicial involvement in this "sifting" process is minimised.

Examining the bureaucratic way in which the institution actually functions has been challenging experience, intellectually and politically. I've never been quite so committed to the concept of human rights as many of my legal compatriots. My skepticism breaks down along a few lines, philosophical, political, legal. Philosophically, I don't hold with natural rights. I don't think they're rationally-derivable through some Kantian moral alchemy. Attempts to prove that contemporary human rights claims have their intellectual history in antiquity or later are generally anachronistic, implausible and self-serving. I'm not at all convinced that morality and ethics are best framed in terms of universally-framed rights and duties at all.  To treat human rights claims as the Good, the Just and the Beautiful, and to gloss over the extent to which framing politics in terms of human rights, risks neglecting the extent to which human rights smuggle with them a good deal of potentially troubling intellectual freight. 

Politically, many folk take it as axiomatic that human rights inevitably and unerringly serve useful ends, and the beneficiaries of these political arguments are the poor, the marginalised, the oppressed and dispossessed. I'm not so sure. For one thing, I'm uncomfortable with the idea of monetising the suffering of the world to make plum, well-paid, often untaxed jobs in national and international bureaucracies for middle class employees. The evidence from Europe shows you that many of those whose cases are now prospering in Strasbourg have the benefit of legal advice, while those without tend to be unsuccessful. Like it or not, resort to forms of legality tend to be indirectly discriminatory against those without the resources to access professional legal knowledge. Looking back at past political struggles, it is not exactly obvious that we ought to expect lawyers and judges, intellectually comfortable to state power, to be supportive of the more left-inclined radical end of the political spectrum. To put it mildly.

In the Scottish context, we can see evidence that large corporate interests, such as insurers and tobacco-hawkers have been able to use the European Convention's protection of their property rights to waylay legislation in the courts.  Both litigious adventures were unsuccessful, but it must at least look a little troubling that the instrument of human rights not only empowers individual wealthy litigants, but empowers conglomerations to reargue their parliamentary defeats before judges, and to employ human rights law to seek to evade reasonable regulations.  In general, I'm more skeptical than many about the utility of law and litigation to drive meaningful social change.

I'm also uncomfortable with the idea of "human rights education", as if the political agenda of seeing contemporary social problems in terms of rights was self-evident. Not a particular philosophical frame, or a rebuttable normative proposition, contending in the ruck of ideas for purchase, but knowledge which a benevolent caste of lawyer-priests cascade down to the credulous, in lectures and jurisprudence. None of which is to say that human rights law and policy hasn't made substantial contributions in some areas of our public life and politics, but it combines to a more agnostic stance than many of my political fellow travellers about the self-evident value of framing problems in terms of human rights and the judicial and bureaucratic institutions these concepts support. 

Bearing all this in mind, this morning's Daily Mail front page makes for discombobulating reading. Our Home Secretary, Theresa May, has gone human rights trolling, arguing that the Tory manifesto going into the next general election should include an explicit commitment to pulling out of the European Court's jurisdiction.  As the saying classically has it, the enemy of my enemy is my friend, and I'm certainly no political chum to the Home Secretary. More left-leaning folk, hearing the Conservative Party's John Bullroarers will feel an instant protectiveness towards the institution which they denigrate. I share that feeling, and have launched my share of jeremiads against the Tory and tabloid outright lies, distortions and victim-fantasies about the European Court. 

In defending it against the predations of Grayling and May, however, I would invite folk on the political left to pause, and reflect a wee bit more about what sort of faith we should really invest in an institution which tells 97% of its applicants to buzz off, expressing as much feeling concern for their complaints as the most heartless Atos disability assessor.  An institution which is primarily accessible to rich applicants, and in dealing with its overtaxed docket, has increasingly resorted to reforms whose effective purpose is to make it harder for the poor and the legally unrepresented to have their cases taken up in Strasbourg. Back in January, I had a piece in the Scotsman on precisely this point, and the contemptible underside of Grayling and Cameron's recent rhetoric on Court reform.

The European Court has its undoubted achievements and contributions to British public life and law. We should not, however, allow the overheated rhetoric of our opponents to occlude the fact that for most applicants, Strasbourg is not a beacon of light for the suffering people of Europe, but is a guttering candle, overwhelmed by its case-load, buffeted by politics, which can do little to alleviate the plights of most folk which petition its attention. A frail little light always at risk of extinction. For all of my scepticism about human rights, my philosophical agnosticism, I can't see that May's Eurosceptic magic fantasy solution helps anyone.

The proverb has the right of it. It's better to light a candle, than curse the darkness.