Treacherous weapons

Newsflash: prominent / eminent / official person expresses opinion / prediction somehow relevant to independence referendum shocker, Yes / No campaigners outraged.

It is becoming a familiar format. The media unearth a suitably credentialled worthy or bigwig, ask them a few prickly questions, and invite an indiscretion liable to wind up one side of the constitutional debate. Which is generally fair game. This Sunday it was Barroso's declaration that an independent Scotland's EU accession would be "difficult if not impossible", for which read, bloody hard, tending towards chuffing hard. Cue salivation in Class 2B, as the Bash Street Better Together kids get their tweets formulated and fire off a series of whizzpoppers about pariah Scotland's hilarious exclusion from Europe, like the plooky teen tapping, ignored, at the form room door. 

On one level, this is a perfectly understandable response on their part.  Uncertainty and risk are the No campaign's favoured instruments.  They want us to see the independence referendum as a jury might a criminal trial, with Yes campaigners' being afforded the opportunity to displace the presumption in favour of union.  Has the prosecution proven its case? If not, the defence need not take to its pins and clear its throat to offer a reasoned account of its own. The proposition falls. 

Where, it seems to me, Better Together go wrong is that they've ceased properly to discriminate between credible and incredible lines of attack.  Does a particular intervention, however wrong-headed, ignorant or loopy favour our position? Then attack, attack, attack. This isn't a phenomenon unique to themselves. Pro-independence folk share the bad habit of enthusiastically promoting congenial interventions in the debate, however objectively dodgy their reasoning or provenance.  The First Minister loves to quote an eminent somebody, pouring icy water on an opponent's position. But we have to try to retain our critical faculties, and resist the partisan logic that every scrap of opinion, prophecy or claim which happens to chime with our constitutional preferences must be right.  That way intellectual bankruptcy lies.

Barroso's intervention this week furnishes an admirable case in point. Whatever your view about the desirability of Scottish independence, his remarks over the weekend were cobblers, and all fair-minded folk who want Scots to vote on the facts instead of distortions should have regarded them as cobblers.  Since, a number of constitutionally unaligned or no-tending voices have offered interesting (and quietly incredulous) responses to the Commission President's opinion. Sir David Edward, a No voter who served on the European Court of Justice and on the Calman Commission, described Barroso's reasoning as "absurd". Professor Michael Keating at the Future of the UK and Scotland blog argues that his intervention "confuses the question" of Scottish accession to the EU and the real and unreal challenges facing it, concluding that:

"None of this is in itself an argument for independence. Unionists can argue that Scotland is better off as part of a big EU state than as a small independent one. It is not consistent, however, to agree that Scots can vote to be an independent state but then seek to deprive them of the basic rights of any European democracy."

While this morning, for the Scottish Constitutional Futures Forum, Professor Neil Walker - "inclined to vote 'no' in September's referendum" - responds to Barroso's comments. He writes that these:

"... recent  events  have fuelled my anxiety about  the climate in which the debate is taking place. They have made me wonder whether the case for independence is getting a fair crack of the whip on the international stage, and have caused  me to ponder the implications of lending my vote to a position that remains so reliant upon negative rather than positive arguments."  

Noting, of Barroso's comments, and asking:

"These remarks have been well publicised. Predictably, they have been seized upon by Better Together as vindicating their long-standing scepticism about an independent Scotland's EU future, and as further evidence of the emptiness of nationalist promises. But why should anyone listen to Barroso on this topic?  Does he have a legitimate political voice in the debate? Does he speak from a position of legal authority?  Or, regardless of his political or legal standing, does he simply have a good insider argument, and one that we should heed? The answer, on all three counts, would seem to be 'no'. Why is this so, and why is it important to the integrity of the debate that the kind of intervention Barroso has sought fit to make should be challenged?"

It is an interesting piece, exploring the complex and contested principles undergirding the European Union, and how these relate to the particular case of an independent Scotland's chance of negotiated EU accession, and the terms of that accession.  

For what it is worth, my own view is that the Nats bungled the early argument on Scotland's EU status, the rhetoric of "automatic" membership offering Better Together an easy and predictable free shot at our vitals on the reasonable basis that (a) there are legal protocols governing EU accession and (b) EU treaty amendment requires unanimity among Member States.  However smooth or rough Scotland's accession to the EU might be, and whatever might be lost or gained in terms in that negotiation, "automatic" seamless and unruptured the process ain't. We have to make informed, prudential and principled judgements about its outcomes.

As Lord Glennie observed in a recent Court of Session decision, "the decision on continued membership will not ultimately be decided solely as a legal question but will, to a greater or lesser extent, involve questions of hard politics." To my mind, taking into account the principles undergirding the EU, and past practice, these hard politics favour some sort of EU accommodation with an independent Scotland. For that reason alone, the demand for certainty emanating from some quarters of the pro-Union debate is absurd. It is like one of David Greig's Yes/No plays.

Yes: Should we go out for dinner, darling?

No: Can you guarantee that the restaurant won't have been booked out, exploded, or become infested with weasels?

Yes: Um. No.  

No: We'll stay in. Microwave mac-and-cheese it is.

Much - too much - of the uncritical response to Barroso's intervention continued to foster this kind of ridiculous shadow-boxing. The temptation to squeeze short term tactical advantage from an intervention damaging to the other side may seem irresistable for the cynical hack.  It is certainly understandable, and a measure of skulduggery and position-taking is to be expected in a political campaign.  But a treacherous weapon is ever a danger to the hand.

Re-Peating

Michael has been beavering away on new Scottish Independence Podcasts all January.  He's had a parliamentary start to his year, joined by three independence-supporting MSPs, by Scots language champion Billy Kay, Catalan campaigner Anna Arque and by BBC journalist-turned-frumious cybernat, Derek Bateman.  

But in podcasting terms, the peat levels have been significantly depleted in the new year. Today, we're back to form with episode number 40 of the For A' That podcast.  UP for the gab this week, David Cameron's patriotic intervention in the independence debate: passionate master stroke or bungling misstep? Canny strategy or dud scheme? 

We also took a look at last week's decision in Holyrood to legalise same-sex marriage.  A good day for many, but where does it sit in Scottish history? What significance does it have? Has the parliament really carried the people with it? Lastly, we touch in brief on Kenny's little bit of local difficulty with his justice brief, and the corroboration controversy. Can the Cabinet Secretary come out of this unscathed?

You can download the latest show from Spreaker, iTunes, or listen to it here or on the show's homepage.  You can also find our whole back catalogue there. Plenty of interesting folk, and diverting conversations. 

It is also the season for renewing our hosting and taking a look at upgrading our equipment as we push towards the 18th of September. We were able to fund all of our podcasts last year from your generous donations. If you'd like to pop a penny in the pot to keep us on air, you can donate via Michael's site or using the donate button to your right here.

Scotland's gay rights journey

It's old news for those keeping a weather eye on Holyrood, but I've a wee post over at the Oxford Human Rights Hub this morning on last week's decisive vote in favour of equal marriage in the Scottish Parliament.  For those who've been following my developing attitudes on this blog, and my emotional radicalising behind the policy last summer, it'll come as no surprise that I was pleased by the final 105 to 18 vote in favour. 

It is one of the legislation's quieter victories, but I'm particularly content that we're finally going to banish the iniquity of making gender recognition contingent on divorce or dissolution of civil partnerships.  That's to put it abstractly. Too abstractly. Before this legislation, where a transgender party to a marriage or a civil partnership wished to be recognised in law in their new gender, the state required them to divorce, whether or not the parties involved in the relationship had any interest in doing so. Edinburgh MSP Marco Biagi quoted this observation from a constituent, reflecting just how unjust  and unnecessary this provision was:

“My other role model for a successful loving relationship is that of my best friend’s parents. His father had a sex change about 30 years ago, and my friend grew up knowing her as his aunt. They are still married, and have been for almost as long as my own parents. I count them as close friends   today, but growing up they were my second set of parents. Because of the current unequal laws on   marriage she’s never been formally recognised as a woman. They couldn’t face the divorce which would be required under the current laws. Forced to choose between state recognition of gender, or their marriage, they chose the latter. She has lived for 30 years with a physical identity at odds with her legal one.”

The headline equal marriage provisions may affect more folk, but it strikes me that this is a greater injustice righted by this legislation. 

I'm also encouraged by Alex Neil's observations that the question about what to do with civil partnerships remains an open and active consideration. The Cabinet Secretary identified two main avenues open to Holyrood. The first would be to discontinue the institution of civil partnership. While those who have entered into them would be preserved in this status, after some arbitrary agreed point, no further partnerships could be formed.  In the alternative, the institution of civil partnership could be preserved, but its gender qualifications - currently, heterosexual couples cannot transact one - eliminated.  For my tastes, the second option has its attractions.

Although last week's decision has a taken-for-granted quality for many of the  folk I've talked to about it since, as I try to flag up in the Human Rights Hub piece, and as David Torrance has engagingly discussed before, it represents a quiet revolution in official Scottish attitudes towards gay rights, and a stark departure from a more conservative tradition in this field.  My father - a crusty, but not ancient character - recalls witnessing police raids on Rose Street pubs in Edinburgh as recently as the 1970s, the suspect sexualities of the crowd blotted by illegality and subjected to public humiliations by officers of the law. As we glance east to Sochi, it is important not to forget our own recent history.  Better the sinner repenteth, but a late conversion does not efface past sins. 

You can read the whole post here.

The googling juror

A few weeks by, I blogged about the experience of being summoned but not balloted for jury duty in the High Court in Glasgow. As you might expect, there were one or two details I couldn't include in that sketch. The nature of the indictment. The involuntarily amusing moment when the first police witness told the court that, on his arrest, the second accused had uttered, spontaneously and unprompted, "well that's it, the game's up".  

While it isn't inconceivable that a talented advocate might offer a persuasive, innocent interpretation of that remark, it isn't the easiest brief in the world. It didn't help that this somewhat ropey-looking character had just been pried from a car crammed with material subsequently revealed to be class A drugs. From the get-go, his not guilty plea didn't look likely to prosper. And so it seems to have proved. Although the Daily Record report is a little unclear, both of the main co-accused have now either been convicted or entered late guilty pleas further into the proceedings, owning up to distributing large quantities of illegal drugs in Dumfries and Galloway and beyond. 

As an unballoted juror, one aspect of the case that was of particular interest to me was the "googling factor". The phenomenon of jurors conducting independent internet research on the accused is one of increasing salience and concern to the justice system.  The first googling juror seems to have been prosecuted and jailed during 2011 in the UK.  In 2013, a juror in England was jailed for six months for contempt of court having googled the accused, discovered his past convictions, and told her colleagues who promptly dobbed her in.  In his opening remarks to the jury in this case, Lord Kinclaven underlined the point several times that the fifteen men and women should not trawl online for evidence of the past misdeeds of those in the dock (or for the matter, of witnesses whose evidence they consider). 

The basic legal rationale for this ban is that jurors should decide the case on the evidence led and tested in court: not on some tabloid hack's biased summary of the matter. With the criminal justice system's repeat players, there's also a risk of disclosing past convictions if jurors go spelunking in the paper record.  Certain clear limits are imposed on the prosecution's ability to lead evidence of the accused's bad character or past bad acts in court. The classic defence of these constraints is that the prejudicial influence of adducing evidence of prior convictions outweighs its probative value.   

Does ten prior convictions for flashing make it more likely that you flashed this particular grandmother in Uplawmoor on or around 2.00pm on Christmas Eve last year? Maybe. But if you knew the person in the dock had this record of public wang-waggling behind him, would you be more inclined towards convict him, even if the evidence adduced by the authorities was shooglier than it ought to be? It's a serious possibility, perhaps even a likelihood, so we try to insulate juries from this kind of information. 

As it happens, the High Court case I brushed against is an excellent example of the importance of putting the fear of god (or at least, of the judge and google) into jurors' hearts. Having been discharged from service, curious, I popped the two main co-accused's names into the search engine revealing - yes you guessed it - several eminently prejudicial press reports of their recent convictions for a rich catalogue of essentially analogous drugs offences.  To be convicted once for dealing heroin in large quantities in south Scotland may be regarded as a misfortune, but twice and thrice? 

Although I probably ought to know better, unbidden, my mind leapt pretty quickly to the conclusion that the pair of them were more or less banged to rights and any explanation they might give would have to be phenomenally good to get them out of it. After a day or two, it seems that at least one of them came to the same conclusion. Little good it will likely do him, mind you, given that a guilty plea at this late stage does nothing to mitigate the costs for the justice system, when no fewer than eight advocates are briefed and ready to perform and the jury has been empanelled and heard evidence. 

Happily, the liberty of these men did not depend on my tainted judgement. But it is a salient example of just how easy, prejudicial and tempting it can be for the lay juror to compromise their objectivity in deciding on the guilt or innocence of folk in the dock.

Legalling Nicola's bedroom tax plan

Scratching your head about this morning's bedroom tax headlines? Me too. The essence of the story is straightforward enough to get your head around. The SNP government wants to spend another £15 million to mitigate the effects of the coalition's changes to housing benefit, better known as the bedroom tax.  This on top of £20 million which has already been allocated to Scottish local government discretionary housing funds. But there's a legal problem and Nicola Sturgeon has written to the UK welfare minister in an attempt to eliminate this problem, and allow the Scottish Government to spend the extra cash. 

So far, so clear. But I never like vague allusions to "government rules" and "missing powers". From the perspective of the struggling punter with mounting bills, I'm sure such details appear piffling, and understandably so. All that matters is securing an outcome which takes some of the pressure off your rent. It really doesn't matter who does so, or how. But these details aren't process for process' sake: understanding them gives you a better understanding of what the legal problems are and who can fix them and how. 

The tale also gives you a flavour of some of the complexity characterising the current law around devolution. The Scottish Government is framing the issue in terms of Westminster fettering Holyrood's powers. There's a bit of truth to that, but less than you might think. 

Our starting point: discretionary housing payments are regulated by this 2000 Act of the Westminster parliament. As the name suggests, instead of being a benefit you are entitled to if particular conditions are met, the basic idea is that councils are invested with the power to pick and choose who their money goes to. And once the money's gone, it's gone. The Secretary of State stumps up a kernel of funding each year for each local authority, which councils may add to if they wish.

Section 70(3) of the Act empowers the Secretary of State to limit how much extra cash local authorities can add to these funds.  A 2001 statutory instrument sets this limit at two-and-a-half times the money allocated by the UK central government to the local authority housing fund. For every £1 put into the pot by the central government, councils can spend £2.50. That's the "maximum contribution" folk have been bandying about.

But wait a second. Where are the Scottish government and parliament in all of this? I thought the problem was limits to Holyrood's powers? Well, yes and no. The Scotland Act reserves social security to Westminster. This includes housing benefit and discretionary housing payments. They have no legal power to reject the bedroom tax off their own bat, or adopt an alternative scheme.  By the same token, the Scottish Government does not and cannot legally operate its own discretionary housing fund either.

On the other hand, Holyrood is responsible for meeting the budgets of Scottish local authorities, contributing around 85% of Scottish local authority funding annually. What Nicola is effectively trying to do is use local government powers and Scottish Government money as her weapon against the bedroom tax, beefing up council budgets. Today's letter to the UK Welfare Minister doesn't require complex constitutional wrangling or legislative amendments to the Scotland Act. All the UK Government need do is vary the terms of this statutory instrument to allow Scottish local authorities to increase the cash they can lawfully allocate to their discretionary housing payment funds. Nicola is essentially arguing for the extension of local authority powers, not Holyrood's powers.

But will Lord Freud and his colleagues do so, and lay the instrument before Westminster? The Daily Record seem to be depicting the issue as done and dusted this morning. I wonder if they're jumping the gun a bit. UK ministers might not be keen on changing the multiplier across the UK. Could they single Scottish local authorities out instead? The cheering answer is: no bother. Section 70(7) of the 2000 legislation makes it clear that the Secretary of State can "make different provision for different areas or different" local authorities.   But that doesn't answer the overriding question of whether coalition ministers can be persuaded to do so. 

After all, the stated purpose of removing the "spare room subsidy" was to save money and rebalance tenant incentives.  Whether or not this was ever a viable or fair project, at least one of its two stated goals will be frustrated if - in effect - Scottish Government money fully mitigates its impact on individuals.

I'll believe it when the ink's dry on the statutory instrument: not before. 

Can Cameron lose a debate against Eck?

Should David Cameron participate in a debate against Alex Salmond before the referendum campaign closes? Will he? Today, a poll indicates that 67% of Scots are in favour of such a debate. To date, the balance of probabilities has seemed to suggest that no debate will take place.  

The script explaining why writes itself. The unpopularity of the Tory-led Westminster government represents one of the big challenges for Better Together across much (but not all) of the country.  If Yes Scotland can transform the Scottish anti-Tory coalition into a pro-independence coalition, the Union is stuffed.

By contrast, the overwhelming majority of Scottish Conservative voters can be solidly relied upon to reject the SNP's constitutional project, come what may. Without any disrespect to them, Better Together can afford to ignore this section of the electorate most of the time. Getting the vote out on polling day will be important, but convincing these folk isn't a priority.  While the Aberdeenshire, Perthshire or Borderer Tory might grouse about Cameron's cowardice in refusing to put himself to the touch in defence of the Union he believes in, this disgruntlement is profoundly unlikely to move them from the No to the Yes column. So who cares?

By contrast, making Cameron the late face and spokesman for the Union in a critical debate is calculated to alienate a vital, wavering section of the electorate who'd never dream of supporting him in their lifetimes. Tory money, Labour activism: that was the deal.  On this vision, the main virtue of the Conservative involvement in the constitutional debate is stealth.  Cameron's participation in any debate would blow that steady strategy to bits.  

An audacious, but risky gambit and one that Better Together may not be able to afford, if the polls narrow towards the end of the campaign.  Although the media love them, the evidence is rather more ambivalent about the impact of debates on voter behaviour. Do they change people's minds? Where one candidate or party wins by a landslide, we can afford to be a bit cavalier about the impact of such televisual events. Not so if the race looks remotely like coming down to a few percentage points one way or t'other.  All good, cautious reasons for Cameron not to debate against the Maximum Eck.

Largely sharing this logic, Alex Massie has nevertheless argued the all into the valley of death case for Cameron to debate the First Minister over the course of the referendum campaign. Surely it is pretty pitiful for a fellow to say that every fibre will be strained in the United Kingdom's defence, but demur from actually making that case yourself to your fellow citizens? It looks craven, and weak, and worse, it undermines a key plank of the Unionist project. 

As Dame Bella of Doily explained in her maiden speech to the House of Lords this week, the idea that the referendum is an issue for Scots only sits uncomfortably beside the togetherness espoused by those supporting a No vote.  In defence of Cameron's stance, various folk have suggested that Eck is attempting to transform the referendum into a snarling, ethnically charged battle between Scotland and England. A simpler explanation might be that the choice is, to some extent, between concurrent administration of the country by Prime Ministers and First Ministers, or Scottish politicians which we can peeble to our hearts content.  

I wonder, though, if there are other good reasons why Cameron ought to put aside his qualms and have a crack at Salmond. Given how low expectations are about Cameron's performance in an #indyref debate against Eck, can the PM really lose?

Reason one: the idea folk will conveniently forget that they are governed by Tories at the UK level if Cameron avoids putting his phizog on telly is ludicrous.  If that fact becomes salient for a significant section of the electorate in the referendum debate - and there are signs that it has already become so - the unpopularity of the Prime Minister and his colleagues can't be avoided. It isn't obvious that a debate could further decrease the regard with which the Conservatives are held north of the Tweed. Not debating seems to secure few advantages.

On the other hand, there is a reasonable worry that the debate would depict the constitutional choices in a way uncongenial to the Labour-dominated forces of Better Together. Although a number of pro-independence folk doubtless have their problems with the first minister, I fancy that the gap of sentiment if not of ideology separating Salmond from them is less than divides your pro-Union Labour voter from Cameron. In a calculated way, recognising this fact is doubtless a reason to refuse to participate. But pace Massie, it still looks pitiful.  People like a trier. 

Reason two: The received wisdom is that Eck would merrily pulp Cameron in any debate. I'm not so sure. And if those expectations of a pulping are not realised, the benefits break entirely Cameron's way. In the American scene, more practised in these sort of head-to-head arguments, they've become pass masters of managing expectations. Democratic spinners bigging up their opponent's credentials, Republicans emphasising the eloquence and experience of their opposite number. Why? Because if you go into these things as the overwhelming favourite, there's a serious risk that you underwhelm, your opponent does better than expected, and you end up with bad headlines, and their unexpected cogency becomes a "game changer". At least in the headlines, in the last days of the campaign.   

If the Salmond vs Cameron debate broke along these lines, you can imagine the copy: "We all expected a Salmond knockout. But the First Minister struggled to land the killer blow last night as the Prime Minister came out fighting in a well-prepared and well-pitched plea for Scots to "stay with us". "An assured performance from Cameron, which surprised many observers." "After a difficult week in Westminster, the Prime Minister has seized back the momentum this week in a commanding performance in Scotland, taking the battle to the separatist-in-chief Alex Salmond, leaving the Chief Puddin' red-faced again and again."  Etcetera, etcetera.  Expectations about Cameron's performance are so low, I struggle to see how he can lose.

Cameron would also want to take an off piste approach to preparing his lines of argument. Wargame unanticipated angles Salmond won't be prepared for. Mix it up. Unless truly calamitous, Cameron can rely on a sympathetic hearing from many of the nationals, who can be expected to leap on anything less than a wholesale Eckly demolition as a set-back and a calamity for the Nats. 

More importantly, perhaps, showing a bit of grit may be in Cameron's own domestic interests. The Prime Minister is getting a troubling reputation for invertibracy, a spammy quality. Giving Eck an even modest thwapping on his own turf can only play well in the London presses, which are still in the grip of the idea that "wily" Salmond represents some mystically forceful character.  There would be no point in debating anything with wee Johann Lamont.  If he comes out unscathed and unscarred against Salmond - or at least having dealt and earned a few scrapes - there's a bit of kudos in that for a plastic PM striving to give his gelatinous form more substance.   

And lastly, a debate between the two would be fun. Shouldn't constitutional politics be fun too? It would also represent an opportunity to bring the folk of these islands together, a set-piece moment for folk in England, Wales, Norn Iron and Scotland to hear and understand the arguments both for and against the idea of Scottish independence and continuing Union. Surely a good unionist should want nothing less.