24 June 2014

Coulson's conviction: Sheridan's release?

Guilty. In the Old Bailey this afternoon, the former editor of the News of the World and David Cameron's media henchperson, Andy Coulson, was convicted of conspiring to hack phones after a lengthy trial. If the immediate influx of hits in recent hours is anything to go by, those with an interest in Scottish politics and a decent medium-term memory are asking one question: surely Coulson's conviction throws Tommy Sheridan's conviction for perjury into doubt?

Remember, Coulson was summoned to Scotland to give evidence in Sheridan's 2010 trial. The Tory spinner was specifically interrogated about his knowledge and participation in unlawful invasions of people's privacy. He denied all knowledge of these nefarious practises, under oath. Surely, some folk are asking, if Coulson has gone down today for committing the very offences he denied in the witness box in the High Court in Glasgow, the safety of Sheridan's conviction must now be doubted? It certainly raises the possibility of further criminal proceedings in Scotland against Coulson for perjury. But is this the critical missing piece of the puzzle which will expunge the word "disgraced" from Sherry's biography?

I really doubt it, for reasons I set out at some length in a couple of blogs back in 2011.  The first - critical - and generally overlooked fact is that the Crown didn't rely on Coulson's evidence to convict Sheridan. Coulson was a defence witness, albeit a hostile one.  He was also a witness unable to speak to any of the charges set out in the prosecution's indictment against Sheridan, which the jury found to have been proven. His questioning formed part of the eccentric, implausible and frequently irrelevant defence case, that the former SSP MSP had been framed in a "wide-ranging" "fit-up".

Go back to the charge sheet. Even if Coulson was lying about his awareness of phones being unlawfully accessed, how is that relevant to an indictment, alleging that you had attended a Mancunian knocking shop for a companionable evening, had a string of affairs, told your former party comrades about doing so, and lied under oath, in Court, in dishonest pursuit of a significant sum of money, about your sojourning, your womenising and your confessions? 

Which brings us onto the point I considered in greater detail in this piece back in 2011. What test will the courts apply, in considering the impact of new evidence on the safety of a conviction? On appeal, the High Court must decide whether there has been a miscarriage of justice. A stringent test applies where an appeal against conviction is founded on new evidence - in this case, that Mr Coulson was a fibbing toad with an expansive knowledge of his paper's illegal invasions of people's answer-machines. The appellant must persuade appeal judges that the new evidence:

"... is not merely relevant but also of such significance that it will be reasonable to conclude that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice."

In making this assessment, the court must be "satisfied" that the new evidence:

"... is important and of such a kind and quality that it was likely that a reasonable jury properly directed would have found it of material assistance in its consideration of a critical issue at the trial." 

Does Coulson's potentially perjured evidence in Her Majesty's Advocate v Sheridan and Sheridan meet these high tests? Did it relate to the "critical issues" of whether Sheridan took himself off down to Manchester to make the beast with two backs, and whether or not he admitted to his SSP comrades that he had done so, and lied in court about it? I struggle to see that it does. 

I'm sure Sheridan is enjoying a prickle of schadenfreude today at Coulson's expense, their positions having been radically reversed. But his interrogation of Coulson on the stand was a politically astute but legally irrelevant smokescreen, summoned up to deflect from the compelling evidence that he was banged to rights and guilty as charged. It didn't persuade the jury back in December 2010. I'm blowed as to why it should persuade anybody else of his innocence now.

20 June 2014

Life, liberty and the pursuit of numptydom

It has been a week for goggling helplessly, open-mouthed. 

This morning, the source of my befuddlement was this screed from John McTernan in the Scotsman, arguing that the government's draft interim constitution, which has been put out for consultation, represents a return to "dodgy regimes with bogus constitutions." 
So far, so mental. But it gets worse. You expect a better standard of polemic from a man who once worked at the heart of the UK government and presumably ought to understand how the state functions. Yet this brief piece is crammed full of legal errors, distortions and elisions. It's breathtaking. In his eagerness to tear at the throat of the SNP, McTernan rubbishes basic features of European and UK constitutional law, and the achievements of the Labour government in which he served. It's a cautionary tale on the intellectual bankruptcy which results from comprehensively subjecting your brain to party-political partisanship. Let's take a closer look at a few choice passages.

1. "A constitution is a serious matter. At its best it embeds values and embodies a nation’s aspirations. The United States in its constitutional commitment to “life, liberty and the pursuit of happiness” sketched the American Dream a century and a half before the phrase was coined. Written well, a constitution passes the test of time too. The US Supreme Court still uses the words of 18th-century men to make decisions on the issues and conflicts of the 21st century."

There's nothing to breed confidence like an elementary mistake in an opening paragraph. You won't find the phrase “life, liberty and the pursuit of happiness” in the seven constitutional Articles agreed in Philadelphia in 1787. That's because the phrase, for all of its fame, doesn't feature in the constitution of the United States, but in the country's declaration of independence from Britain. But ho hum. It makes for an arresting opening, whose fast and loose attitude to the facts cascades delightfully throughout the piece.

2. "First, the Scottish Parliament cannot pass an Independence Bill. On 19 September, whatever the result of the referendum, the Scotland Act is still in force. Schedule 5, Part 1 says clearly: “The following aspects of the constitution are reserved matters… the Union of the Kingdoms of Scotland and England.” Only the UK parliament can pass a law to break up the country. Only the UK government can lawfully spend taxpayers’ money on drafting such legislation." 

You're part right, John. But your first proposition - that the Union is a reserved matter - doesn't entail your second claim that "only the UK government can lawfully spend taxpayers’ money on drafting such legislation." Why not? Section 29 of the Scotland Act 1998 is about legislative competence. It is about what laws Holyrood can pass. If Nicola introduced her draft Bill to Holyrood now, it'd clearly be ultra vires as you say. But she's not doing that. She's produced a proposal to be chewed over, commented upon, updated - and introduced after a Yes vote in September and the necessary legal deal-making with Westminster. 

And there is diddly squat in the Scotland Act, saying ministers and the parliament cannot explore, research and pour resources into the examination of reserved matters or considering constitutional counterfactuals. If that were the case, the whole Calman commission project, funded at the instance of the unionist majority in Holyrood, with civil service support, would presumably be unlawful too. But shucks, I can't seem to find your outraged diatribe about Wendy Alexander's "supreme arrogance" and "abuse of power" in setting up and funding the body to consider a slew of reserved constitutional matters in 2009. Presumably that Jeremiad got lost in the post. But let's continue.

3.  "... go further, read the bill. I know you don’t want to, so I’ve read it for you. It makes some breathtaking decisions on behalf of Scotland. To start with, it abolishes our constitutional monarchy. Sovereignty in the United Kingdom is the Crown-in-Parliament. The draft “independence bill” replaces that with the emetic sentimental emotionalism of “In Scotland, the people are sovereign” – whatever that means. Will there be plebiscites in place of the process of Royal Assent? No. The power of the Crown is being annexed by the Executive – the Scottish Government."

Ah yes, the notoriously unsentimental, unromantic institution that is the British monarchy. The rough way her Majesty is being treated in the text would bring a tear to a glass eye. Popular sovereignty, what a joke, right John? Funny. 'Cos the concept didn't seem to tickle so many of your Scottish Labour Party comrades, who put their names to the Claim of Right in the 1980s, which recognised "the sovereign right of the Scottish people to determine the form of Government best suited to their needs." That Gordon Brown and Alistair Darling: what a disgustingly sugary couple of sentimentalists.

4. "Actually, it’s pretty certain that the Scottish people won’t be in charge. The European Union would be given an extraordinary control over Scotland by the SNP. The bill states: “Scots law is of no effect so far as it is inconsistent with EU law”. It then adds: “Every person has the rights and fundamental freedoms set out in the European Convention on Human Rights. Scots law is of no effect so far as it is incompatible with those rights and fundamental freedoms.” That, effectively, cedes total sovereignty to the EU. That is as big a change as joining the euro – and would have as large a backlash from the public. Scotland, as the election of a Ukip MEP in May shows, is as eurosceptic as the rest of the UK. Good luck with the subjugation of Scotland to Brussels."

This passage is majestic piffle. Apex piffle. Piffle to end all piffle. John McTernan used to occupy a seat at the centre of government in the United Kingdom. You'd think that such an experience would give you an understanding of the basic public law of this country. But only someone totally ignorant of the law of the UK, or with a conscious intent to mislead, could mint a paragraph so liberally supplied with ignorance and distortion. 

Point one: The idea that these provisions invest EU institutions with "total sovereignty" is utter, utter guff. Under the treaties, EU bodies have limited competences. They can take decisions and adopt regulations, but only in the fields agreed by member states in the treaties. "Total sovereignty," and outsourcing of all legislative functions to Brussels and Strasbourg, it ain't.

Two, EU law already, in principle, enjoys supremacy over the national law of member states. As the Factortame litigation famously demonstrated, if domestic legislation conflicts with the law of the European Union, UK courts are obliged to apply the directly applicable EU law. This isn't a new idea. It is a decades-old, elementary feature of EU jurisprudence. Thinking about what the EU is for, this makes sense. If national regulations were permitted to trump EU rules on free trade, free movement and non-discrimination, the whole project of the single market could be undermined by protectionism and rendered a dead letter. 

The draft interim constitution's provisions are not, as McTernan implies, some loopy Europhile innovation outsourcing a vast swathe of new powers to Brussels: they merely reflect the legal rules which already govern the UK and every state forming part of the Union. If John objects to that, he can take to the barricades with David Coburn and Nigel Farage. If the rules set out in the draft Bill represent "the subjugation of Scotland to Brussels," then the UK is already subjected, manacle and fetter. Yet McTernan saw fit to omit this critical little detail from his article. I sense a warming theme.

Thirdly, McTernan also conflates the ECHR with EU law, suggesting that requiring Holyrood to uphold basic human rights norms with "subjugation to Brussels" and "the EU." The European Court of Human Rights has its seat in Strasbourg, and is a Council of Europe, not an EU tribunal. Congratulations John, you've just committed the public law teacher's greatest bugbear in the national press. Dismal shades here of the cobbled together, late-night undergraduate essay.

Fourthly, John totally ignores the character of the Scotland Act, which was introduced by the Labour government in which he served variously as henchperson and factotum. The Scotland Act provides that ... all of Holyrood's legislation must be compatible with Convention rights and EU law. Any law passed or ministerial action which violates your Convention rights or European regulations is no law at all, and liable to be struck down in court. This is a scheme which is neatly copied in Nicola's interim constitution. Get that. The draft text which has McTernan twisted all out of shape actually mirrors the constitutional reforms introduced by his own party in 1998.  Does the Scotland Act "mimic the language of freedom, only to mock it" too, John?
No doubt, when in office, he screamed the house down when his Labour colleagues created a devolved parliament in Edinburgh which - and I quote -"effectively, cedes total sovereignty to the EU" and subjugates "Scotland to Brussels." What's that John? Silence there are nothing more? Perhaps you found your Labour colleagues' decision so "breathtaking" that it knocked the stuffing out of you.

Or perhaps you reserve your pompous, scattergun, manipulative and under-researched hack work for your opponents. Do us all a favour: the next time the spirit takes you to write about the constitution, take a remedial course in public law. If today's shrill offering is anything to go by, you don't know nearly enough about how your country is governed.

19 June 2014

Vote No Thanks

"Do you fancy a third slice of cheesecake?" "Another dram for the road?" "Care to contribute a penny or two to our donkey sanctuary?"  

What unites these three statements? Whether you are waylaid by a high street chugger, stuffed after having dinner at a friendly house, or fending off a barman keen to send you home steaming, now would be an inappropriate moment to wheel out your Reverend Ian Paisley impersonation. Baying "no, no, no" or "never, never, never" in response would be bad form, excessive, impolite. Much better to winkle your face into an apologetic smile, and demur with a gentle, "no thanks." The proposition does not disgust or offend you. You appreciate the thought behind it. In another circumstance, you might accept.  But, no. Not today, thank you.

Compare and contrast. "Would you like me to drive this rusty spike through your abdomen?" "Shall we take our summer holidays in Hull this year?" "Can I tempt you with this spare ticket to see Chris de Burgh?" Here, a shriek of dissent is not merely polite, but an indicator of elementary good sense. The proposition is ghastly, terrifying. Now is your Ian Paisley moment. 

One of the curiosities of the No campaign's initial "Better Together" branding was that it sought to answer the inherent positivity of a Yes campaign with an alternative positive proposition. It didn't seek to persuade you only that you should vote No in September's referendum, but of the wider claim that we are "better together" as part of the United Kingdom. This always struck me as something of a hostage to fortune. To contend that you are better together leads you almost immediately to the tricky question: better how? Better in what ways? And this is particularly problematic, when the three key political parties which make up your campaign don't even agree between themselves about how and why we're "better together."

The slogan isn't a diehard patriotic message, a call to British nationalists across Scotland that their country needed them, but an expression of the sort of instrumental unionism which used to be the bread and butter of Labour's defence of the Union. The problem with this sloganising is that it shifts the debate onto the terrain where the Yes campaign is most comfortable, where we want the discussion of independence to be. Are we really better off? Let's consider recent policy outcomes. Let's talk about how the United Kingdom is managed and run, and by whom. These arguments were always bound to form part of the case for independence. It was a bit more unexpected, however, to see their logic reflected in the No campaign's choice of name.

With that in mind, I find Better Together's recent "No Thanks" rebranding, and its choice of message, interesting. Undoubtedly an unspontaneous and considered innovation, the shift in the campaign's dominant message is presumably underwritten by all the usual marketing bells and whistles of polling and focus group work. Which brings us back to the cheesecake, the whisky, and the ailing donkeys. There's an implicit recognition of the attractions of independence in the new catchphrase. It doesn't depict full self-government as a bleak horror, or an idea to recoil from in disgust, or a self-evidently ridiculous notion which no right-thinking soul could for a moment countenance supporting. It has none of the denunciation and hell-fire of the ultra-unionist, Presbyterian preacher. Just an apologetic - perhaps even slightly regretful - No thanks to independence.

This shift of tone reflects the discussions you hear out and about in the country. Some folk reflexively reject independence as an absurdity, like my Old Soldier.  A scorched earth strategy might appeal to bilious old corporals, but if the conversations I overhear and engage in are anything to go by, they are unlikely to win folk over who find the concept of Scottish independence less existentially troubling. Most people I encounter seem willing to give the concept of independence a fair wind and remain, on some level, open to persuasion. Their unionism is provisional, not dyed in the wool. The "I" word doesn't cause their capillaries to flush with rage or credulity.

Alex Massie has been particularly good on the ambivalences of sentiment many folk will feel in this campaign. I've had conversations with a fair few folk who find the idea of independence appealing on some level, but who intend to vote against it. At least this time around. I chip away at them, but a recognition of these ambivalences of sentiment can also help to explain some of this campaign's stranger permutations.

Elements of the English political class and some parts of the press are increasingly desperate to find - and failing which, to invent - a significant anti-English dimension to the argument for independence. But there is nothing inherently incompatible with a residual anti-Englishness and enthusiastic support for the Union. I had a bizarre encounter with this kind of thinking, when I met the Old Soldier in a Glasgow pub. Passionately concerned not to make my Liverpudlian companion "a foreigner," he nevertheless punctuated his anti-Nationalist diatribes with the suspicious demand, "Are you English? Are you English?" The quotation didn't make the final cut, but in another setting, I recently heard a No voter explain to his pal that he "hated the English as much as the rest of us," defensively. I was itching to butt in. I courageously kept mum. But I doubt you meet many open-hearted anglophiles in the ranks of the SDL either. 

The interest of Better Together new slogan, for me, is that it implicitly recognises the attractions of independence. Jettisoning, or at least backgrounding, their attempt to persuade us that we're better together, the new motto recalls the closing speech of the defence lawyer, who suspects that his client is guilty, but who invokes the burden of proof to demand an acquittal. Sure, the character in the dock looks shifty, isn't entirely trustworthy, and you probably don't much like him, but the prosecution haven't proven their case. I know you want to send this guy down. I know you wont enjoy setting my client free. But look, members of the jury, the evidence just doesn't stack up. There are too many holes in the case. You can't take a decision this big with all of these questions outstanding. And that, ladies and gentlemen, is reasonable doubt.

Vote No. Vote No thanks. 

Who are "we the people"?

Who are “we the people”? It is traditional to begin constitutional tracts with that kind of question. During the early phases of the French revolution, the Abbé Sieyès– the “mole of the revolution,” who had the bad grace stubbornly to survive the whole thing – asked his fellow citizens, “what is the third estate?” 

The body formed one third of the Estates General summoned in 1789 by the ill-fated Louis XVI, along with the nobility and the clergy. But who were these “commoners"? And what did they represent? The delegates didn’t hold their places by dint of clerical office, or on the back of an inherited dignity won by their ancestors through legalised brigandage. 

They were a motley crew of provincial lawyers and wine merchants, some broken down aristos, philosophers, hacks, mad physicians, speculators, chancers, worthies and unworthies. That the Third Estate evolved to see itself as representing a national assembly and the sovereign will of The People is well known: a growing self-consciousness which pitched several pillars of the old dispensation into their graves. 

An independent Scotland faces a rather different conjunction. Our political tumult doesn’t result from dethroning a reactionary sovereign – we’re keeping ours. By the other dimensions of the constitution are up for grabs after a Yes vote, with an emerging consensus that any constitution should be a matter for "the people" to decide. The Deputy First Minister expressed the orthodox Nationalist constitutional discourse clearly in her Edinburgh speech this week:

"... the process of creating the constitution – the engagement by the people in it – will be as important in many ways as its contents. Because the constitution of a country defines who makes decisions on behalf of its people and how the people choose those decision-makers and influence their decisions. The constitution should also set out the aspirations we have for our country and our vision for the future."
"As I have said, the constitution is the basis of everyday life, not separate from it. So the written constitution should be designed by the people of Scotland, for the people of Scotland. The process must be participative and collaborative to reflect that the people – not politicians or state institutions - are the sovereign authority in Scotland."

But who are “we the people”? In 1787, a convention of wealthy, white, bourgeois men in Philadelphia happily and apparently unselfconsciously appropriated the term in the preamble to the Constitution of the United States of America. Needless to say, this assembly of The People left great swathes of the people unrepresented. Reading the Scottish Government's draft interim constitution, put out for consultation this week, and Nicola's speech at the university of Edinburgh, I was struck again by the importance - and the continuing vagueness - of our thinking about the constitutive role of the people, and more practically, how we wish to see this expressed after a Yes vote.

The concept of "the people" features in a couple of ways in this week’s draft interim constitution. In section 2, their sovereignty is asserted:

"All state power and authority accordingly derives from, and is subject to, the sovereign will of the people, and those exercising State power and authority are accountable for it to the people" (s.3(2))

The people put in a second appearance in section 33, which provides that:

"The Scottish Parliament must, as soon as possible after Independence Day, make provision by Act of the Parliament for the establishment of an independent Constitutional Convention to be charged with the task of drawing up a written constitution for agreement by or on behalf of the people of Scotland."

The Bill also provides that this Convention will not be subject to control by ministers and parliamentarians, though it envisages that the Scottish Parliament will lay out provision on its membership, budget, timetables, procedures - and critically, the rules governing "the procedure by which the constitution" prepared by this body "is to be agreed by or on behalf of the people."

A few things to notice about this. Firstly, the Bill envisages that that process of writing Scotland's permanent constitution will only begin after independence is fully established. It will not run in tandem with the negotiations to break up Britain, divide assets and agree terms of continuing cooperation with what remains of the United Kingdom. Secondly, the Bill kicks the can down the road and leaves key questions unanswered. The idea of a constitution being drafted "by the people" does not speak for itself. Even the language of a Convention is inscrutable, potentially compatible with any range of configurations in terms of membership and remit. Nor do the international parallels all speak with one voice. "The People" look different in different places.

As I have written before on this topic, the recent Irish Constitutional Convention, reconsidering the Republic's basic law, consists of a mixed body of politicians and citizens. Chaired by Tom Arnold, the rest of the Convention is populated by 33 parliamentarians, and 66 randomly selected, "broadly representative" ordinary citizens. In Iceland, by contrast, 25 individuals were elected by special ballot, to form the convention which drafted their abortive "crowdsourced" constitution.

Our own recent history expresses a different conception of a convention altogether, with the Scottish Constitutional Convention forming around political parties, a selection of civic organisations, churches and the like - with few of The People having any say about who was, and was not, sitting around the table.  All three conventions comfortably use and used the language of expressing the popular will, but their compositions couldn't be more different.

The language of the draft Bill suggests that the Scottish government wish to exclude national parliamentarians from membership altogether, but even then - that doesn't answer all of the questions about who "the People" who compose this constitution might be, how many of them are delegated, and how individuals will selected to serve.

Should selecting to the Convention be randomised, selected for on the basis of particular characteristics? Teaching constitutional law to my first years in Strathclyde last term, this idea was met with considerable antipathy by my students, but it has been employed elsewhere - including in the Canadian citizens assemblies, which considered the advantages and disadvantages of different electoral systems for the province.

And there is a certain force to the argument that if an ordinary punter can send a man to jail for life, then they are well capable of framing the basic law of the country, with the proper resources and advice. For others, of course, this merely underlines the folly and terrors of trial by jury - and the perils of leaving constitutional drafting in the paws of potentially disengaged, ignorant or indifferent fellow citizens. Several folk find serving on criminal trials a chore - why inflict boredom on the uninterested when you have tragic obsessives like me, champing at the bit to get involved?

And what is so splendid about randomised selection anyway? What special legitimacy does the disengaged individual have over the active and interested citizen? We're hearing this kind of patter quite a bit in the independence debate on all sides. "I'm not involved in politics, I'm not interested in politics" a Better Together activist said to me on Sauchiehall street the other day, as if it made his arguments more respectable and convincing.

In her now-notorious remarks at a recent No campaign event, Clare Lally harped on the same string, representing herself as an "ordinary mother," as if that invested her opinion with greater weight than a more politically-active "ordinary mother" like Johann Lamont, or Angela Constance. You hear the same on the Yes side. While there are plenty of reasons to be cynical about the state of our politics, I'm profoundly suspicious of anybody, whatever their views, smuggling in their ideology under the guileless mantle of being plain, ordinary and common sense. The constitution is essentially a political document.  The process for its formulation ought to reflect that.

So perhaps folk should be obliged to put themselves forward to participate, rather than leaving things to random chance? But then, who decides from these would-be active citizens? Fortune? Election? A sprinkle of both, in a multi-member convention? Or will we have an all-too-worthy rerun of the 1990s, with all the usual suspects in place? Heaven forfend. If there's a lesson in all of this, it is that we should be suspicious of the malleability of the discourse of "the People."

In one sense, the vagueness of Nicola's draft Bill on this point is no bad thing. The air having cleared after September's poll, the negotiations for independence having been largely completed, the new Scottish Parliament can apply itself to these questions - and potentially incorporate concrete proposals on the shape of the Convention in their election manifestos of that year. The Bill doesn't try to stitch up these issues now, prematurely. But it is critical to recognise that the breathless, rhetorical language of a constitution of the people, written by the people, for the people - leaves a very great deal unanswered and undecided.

So who are “we the people”? It seems we'll have to wait until 2016 to find out.

17 June 2014

24 Carat Poppycock

I coughed. I sputtered. I spat my Earl Gray down the wall. In awed silence, I goggled, caught between astonishment and incredulity. 

Last night on the BBC's Scotland 2014 programme, Alistair Carmichael dumped a clanger.  Around four and a half minutes into the broadcast, the following exchange occurred between the host, Sarah Smith, and the Secretary of State for Scotland.

Smith: "The Lib Dems have been talking for a long time about a federal Britain. But Labour and the Tories only came up with plans for more devolution very, very recently. They could have done this - they've both been in government since the Holyrood parliament was opened. They could've legislated for this easily by now if they wanted to. Do you trust the other leaders, that they'll actually deliver on this if there's a No vote in September?"

Carmichael: "Well, there has never been a time, Sarah, since we started this devolution project, where part of the United Kingdom has asked for powers for a parliament or an assembly where this has been denied. We have twice delivered powers for the Scottish Parliament. The Labour government set it up in 1997, we within the coalition government, then added to these powers, following the Calman Commission - so that was, eh, a project started under the last Labour government, that was completed by the coalition this time around-"

Which is. Er. Demonstrably untrue. To say that you have devolved some additional powers since 1998 - and that's beyond dispute - cannot substantiate Carmichael's much more extravagant claim that no devolved parliament's demands for additional powers has ever been disappointed. The point went unchallenged in the interview, but it's 24 carat poppycock. But don't take my word for it. Ponder the recent record. 

Scrutinising the Scotland Bill in 2011, the majority of the Scottish parliamentary committee urged Westminster to (1) give Holyrood power to vary income tax thresholds and banding (2) to raise excise duty on alcohol (no doubt with one eye to the 1725 malt tax riots) (3) air passenger duty (4) corporation tax (5) regulation of firearms (6) more authority over the Crown Estate - and so on, and so on. Indeed, the Scottish Government, backed by the parliamentary majority, generated this helpful list of their proposed amendments to the Scotland Bill for the Westminster government just a few years ago, in 2011. 

In the starry parallel reality in which Carmichael appears to dwell, every single one of these demands has been met and devolved by the responsive and yielding government in Westminster. Because after all, "there has never been a time, Sarah, since we started this devolution project, where part of the United Kingdom has asked for powers for a parliament or an assembly where this has been denied."  

But gosh darn it - I can't seem to find any of the powers we know the Scottish Government demanded in the final text of the Scotland Act 1998, or in the 2012 Act, or in any other order or statute. Are Her Majesty's ministers discreetly concealing all of the tax powers they've given us in the chancellor's Downing Street water-closet? Are the relevant papers, putting the Crown Estate in Scotland under Holyrood control, bundled in Michael Gove's drinks cabinet? Or does Eric Pickles' tupperwear hold all the secret, promised authority over guns and pills? 

Good things come to those who wait, as some liquor-peddlar once said. I'm sure they'll turn up eventually.  Because the Secretary of State is an honourable man, and he assures us that "there has never been a time, Sarah, since we started this devolution project, where part of the United Kingdom has asked for powers for a parliament or an assembly where this has been denied." 

One or two of the Scottish Government's demands did make it into the final cut: boozing and speeding. But almost all of the tax and monetary powers petitioned for, over and above the Calman proposals, were turned down by Westminster as recently as 2012. The process of extending devolution in Wales has been marked by similar marches and countermarches and demands going unmet.

Still, Carmichael's grand proclamation that everything is up for grabs will no doubt be welcomed by the popping of corks in Northern Ireland, which is still waiting for Whitehall's decision on whether or not to give Stormont authority to vary the tax rates levied on businesses to make the six counties more competitive with their southern neighbours. Presumably, Carmichael's colleagues would have a similar open door policy to Scottish ministers, tripping south to petition for powers to match those which will, in the Secretary of State's fantastical parallel reality, inevitably come Belfast's way.

There's an important point to all of this.  The best reason to be sceptical about the promises from the Tories and Labour on further devolution is not 1979, but 2012. From experience, we know that both parties are capable, with prodding, of devolving some additional powers. The record speaks for itself in that respect. But we also know that as recently as 2012, both political outfits were dead set against introducing the very schemes which they now array juveniles with purple placards across incomplete monuments to "guarantee". 

They had a golden opportunity to introduce this flexibility into the devolution system less than two years ago. They declined to do so. The Liberal Democrats, the Tories, the Labour Party: all. Just two years ago. The question I'd like to hear credibly answered is, what has changed since the spring of 2012, to convince Johann Lamont, Ruth Davidson and their colleagues that the proposals they blocked less than two years ago are now grand ideas, "guaranteed" to the Plain People of Scotland if they have the douce good sense to say "No thanks"? If these ideas are wizard, what was so wrong with them in 2012?
We also know, all three of the Better Together parties having reported, that none of their devolution wheezes remotely approaches a vision of "devo-max", whatever their more breathless proponents might claim. All three plans will continue to reserve a whole tranche of critical decision-making to Westminster, on everything from renewable energy, to taxation -- and critically, social security and welfare. 

We've a snowball's chance in hell of seeing any of these powers accrue to Scotland if the opportunity of independence is forgone in September.  Even if we batter on Mr Carmichael's door, send a flurry of letters to his office, despatch tender scones to woo him to the advantages of devolving these powers - the Labour and Tory reports make clear that the door is firmly shut to all such petitioners, be they bearing scones or sconeless. 

But never fear. Don't let our recent past behaviour or our current policy trouble you, because "there has never been a time, Sarah, since we started this devolution project, where part of the United Kingdom has asked for powers for a parliament or an assembly where this has been denied." 

I coughed. I sputtered. I goggled. 24 carat poppycock.

14 June 2014


You could blow me down with a wren's feather. On Thursday afternoon, and with immense tentativeness, I asked if you could lend me a hand to keep the Peat fires burning all the way up to referendum day. I asked for £750. Within hours, in your marvellous kindness, consideration and generosity, the fund had already shot past that. As the balance stands, between donations and the Indiegogo campaign, you've contributed a startling £2,308.03 to the peat worrying kitty.  I'm stunned.   

The Indigogo campaign still has a month to run, but as you can imagine, I'm already pleased as punch. I am also tickled by the range of people who chipped in so generously, including many folk whose opposition to my constitutional politics I know are dyed in the wool and inveterate. This past week has been full of negative representations of the independence campaign as sour, divisive and uncomradely across the Yes/No divide. That's not my experience. 

And like Alex Massie, I'm minded to credit these small, unremarked kindnesses and civilities more than the exaggerated folk devils and moral panics which have dominated the headlines this last week. Surveying the list of backers, I was also struck by the disproportionate number of women who contributed. I take particular heart from that. 

All that remains is to thank wholeheartedly all of those who gave the funder a nudge, put your hands in your pocket, or who wished me well.  It has made this a cheering, unexpectedly affirming kind of a week.

12 June 2014

Keeping the Peat fires burning...

I could do with a hand.

I love writing. I haven't yet found a way to make it pay to any remotely sustaining extent, but few pleasures compare to firing up the blog and unleashing a thought or two in print about the affairs of the day. Those pleasures have been heightened by the independence referendum, and the profusion of stuff to be thought and scribbled about, but the pressures of other duties and concerns have to a great extent limited the time I can judiciously commit to it.

I've particularly enjoyed the opportunity to try my hand at a different sort of writing in the latest two editions of the Drouth, the first being an account of a National Collective meet up, the second a surreal conversation with a lushed-up Old Soldier about the positive case for the Union. It'd be splendid to be able to do more. 

Term is over, the doctorate is essentially done and dusted, and I'm in the market for more permanent, remunerative work. This is, as countless other folk have experienced, a joyless, harrowing endeavour punctuated mainly by setbacks and failures, but I'm not downhearted.  I am, however, at a loose end and must try to keep body and soul together somehow over the next few months.

My first order preference would be to be able to use the time to give the #indyref the attention it deserves, and to be able to write more considered, Drouth-style pieces for the blog about how the campaign is unfolding and being experienced. The conversation in the media has become so unrepresentatively shrill, that I'd like to expand the sort of discussions Michael Greenwell, our guests and I have been having to include more folk who disagree with us on the constitution, exploring some of the ambivalences of both sides of the debate which the aggressive binary vision of the referendum consistently elides and suppresses.

This was one of the charms, for me, of Derek Bateman's recent return to the microphone. As a first stab in this direction, I'm hoping to record a discussion with arch unionist professor, Adam Tomkins, over the next few weeks, with respectful but not unchallenging dialogue being the watchword. People do politics better in this country than the ongoing stramash portrays. We should all do our best to reflect that much more thoughtful and civilised reality.

Which is where you come in, or can come in, if this vision appeals to you. As it stands, it doesn't look like I'll be able to afford to take that time away to do the referendum justice. This is bad timing, but it's as simple as that. I am not, however, a man of great needs and wants and have tried to work out the minimum extra income I'd need, to make it possible to supercharge the blog over the last three months of the campaign, instead of offering only a skeleton service and the very occasional comment piece.

By my reckoning, it is about £750 to £1,000: not an insignificant sum of money, but the least required to keep the show consistently on the road. So that's what I'm pitching for. What's to lose? If you value the occasionally oddball, but independent and open-minded legal and political commentary I've undertaken here since 2009, I'd very much appreciate your support at this key time in Scottish politics. 

As the journalists rightly reminds us, if you want to invest in quality journalism, buy a paper. The same goes for quality blogging. There is something a bit mortifying about this -- but I'll choke it down. Fear of failure is remarkably debilitating. If you've enjoyed my work here, and would like to see much more of it over the final push towards the referendum, making the case for independence and rooting out some of those overlooked Scotlands fizzing away in this campaign, whatever your views on the constitution, I'd very much appreciate any contribution you might feel moved to make. If not, I'll see you over the pint I'll be pulling.

Aping recent successes in the Scottish blogging scene, I've set up crowdfunding campaign site with Indiegogo. All contributions, however wee, very gratefully received. Alternatively, if you'd prefer to contribute directly via Paypal, you can use my Donate button to the right of the screen. With your help, we can keep the Peat fires burning bright, all the way through to September.

10 June 2014

The Great Dictator

Microphones plugged in, earphones on, green room liberally stocked with complementary Midori, on Sunday we finally got around to recording episode 44 of the For A' That podcast, casting a perfidious cybernat's eye over the latest developments in the independence campaign. Michael has been a busy little bee with his Scottish Independence podcasts in the meanwhile, producing recent crackers with the Yes-inclined author Karen Campbell and with folk singer, Karine Polwart.  

But this weekend, we were joined by Christopher Silver, half of the industrious duo behind the Scotland Yet film project, which trailed last April.  I'm happy to say that Jack and Christopher exceeded their crowdfunding target, so the #indyref film should be coming - free, no less - to a theatre near you before the polls close next September. 

Christopher gave us a wee insight into the thinking and aspirations behind the project, and the undiscovered Scotland it hopes to snapshot. We also had a blether about the latest headlines in the campaign. What are we to make of the President of the United States' belief that Britain is better "united"? Will his less-than-full-throated endorsement of the status quo really convince many Scots to change their votes, one way or the other? 

Speaking of international parallels, is that Alex Salmond really a dead ringer for a long-dead North Korean tyrant, as Alistair Darling maintains? If we want a vision of the future, should we imagine a Tunnocks tecake smashing against a human face - forever? And what's behind the former chancellor's [inaudible mumble], nudge-and-wink, "blood and soil" patter anyway? Michael also poses one of the burning global questions of our time - what mysteries do aliens hope to find in the eightieth Texan colon that their probes failed to detect in the first? Answers on an encrypted datastick, please.

As usual, you can take in the show here, via iTunes, or download it to your device of choice for later listening. There are also plenty of other tracks which you can lend your lugs to, over at the show's homepage.  Happy listening.

8 June 2014


Back in 2011, the Flying Rodent composed this majestic diatribe, detailing a doer's guide to Concern Trolling. The target of the Rodent's ire was a rash of reports and articles in the UK media, which represented its authors as embattled truth-tellers, "shouted down" by the PC mob and silenced by illiberal liberal elites, inimically hostile to the unsayable, plain, old-fashioned common sense which the hacks and politicians imagine they espouse. 

Nigel Farage has become a past-master of this dual strategy, assuming the mantle of both the Plain Fellow and the Victim. I marvel every time I hear an earnest right-wing gob-jobber on Question Time insisting that "we can't talk about immigration in this country," having spent half of the BBC's flagship politics show, speculating on the extent to which Romanians are lifting the colostomy bags of British grannies, or offering up distorting and racist accounts of crime statistics. 

Whatever pinko censor is responsible for keeping this stuff off the British airwaves is either grossly incompetent, or the forces of reaction's most effective third columnist. As suppression-tactics go, the liberal tyranny which rules us needs sent to Pyongyang for retraining. We seem to hear and see a remarkable quantity of the "unsayable" in the popular media, yet its free availability does nothing to diminish its proponents' sense of themselves as gallant counter-cultural warriors, embattled but determined to make the truth heard, as they see it.  

The lesson? Bullshit fantasies of victimisation have their compensations and pleasures. And the frisson of ressentiment is all the more enjoyable, if you don't actually have to suffer or forgo anything to enjoy your sense of being hard done by. Being "shouted down" is far more satisfactory, it seems, while having your views projected, unchallenged, on the front pages of the national press. Surveying a range of articles cast in these terms, the Rodent concluded:

"I notice the single common factor to each piece (I'll paraphrase, since the Times is paywalled) in that almost every one - report, leader, opinion piece - starts with the premise that the topic is taboo; that discussing it in racial/religious terms opens the speaker up to malicious attacks from the Politically Correct mob; that, in short, the Times isn't allowed to discuss this stuff in these terms. Wait a minute, I think.  You're the nation's paper of record, and you're telling your readership that you're not allowed to report on the things which you are in fact reporting on, in the specific terms in which you're reporting upon them? That doesn't make a whole lot of sense."

Roused from my slumber at dawn on Friday, I agreed to go on Kaye Adams' Morning Call programme on BBC Radio Scotland, to discuss President Obama's faltering endorsement of a "united" Britain. As it transpired, I spent much of my speaking time, responding to a couple of callers claiming that the Yes side of the argument was "shouting down" those committed to continuing Union. 

Earlier in the show, I'd suggested that Obama had lost the redemptive veneer of his first election. No JFK (and the ghastly JFK was no JFK either), the President is now a figure tarnished by the challenges and compromises of office. Not all of this is the President's fault. But whatever his views on Scottish independence, and whatever his assessment of the best outcome from the perspective of American security interests, Obama now cuts a diminished figure. I doubt very much whether his remarks will weigh with many of us on the 18th of September, as we puzzle over which way to cast our ballots, one way or the other. 

Despite the First Minister's pitch-perfect response to Obama's comments, (and my own concerted attempt to be reasonable), Kaye's No callers proved conspicuously attached to the idea that folk of my constitutional persuasion were somehow bullying or unjustly muting dissenters. Despite. You know. Their own opportunity to express their sentiments on national radio. And. Um. The fact that the President of the United States' comments appeared on just about every front page in the country. And. Er. The daily grind of independence-hostile front-pages, news content, reportage and opinion columns. Clearly, opposition to independence is the one political cause in this country which dare not speak its name for fear and trembling. We can only conclude that the pinko censor, charged with keeping immigration off-topic in the UK press, has been transferred to the Yes Scotland office.

Just this weekend, a series of articles in the press harp on the same string. The Times has a piece on unionist artists being bullied mute by thuggee nationalist sculptors and the unevidenced threats and menaces from secessionist choreographers. That notoriously thin-skinned band, stand-up comics, are apparently feart of broaching referendum controversy at this year's festival in Edinburgh.  My heart bleeds.  I suppose they'll be forced into retelling their "edgy" rape jokes instead.  You know: something less controversial. Just the latest, tragic victims of our bilious and bile-spattered referendum campaign.

Hardly a week goes by, without some new tale of a No voter having their misplaced anxieties - and I'm afraid, their cowardice - indulged by sympathetic media outfits, doing their darnedest to convince us that this poll - this model of participative democracy, this civil, invigorating campaign - is something dark and terrible, rending the country apart. In its worst excesses, this construction of the referendum betrays an unseemly relish for the wildly remote prospect of blood on the tiles. 

The underlying message of this commentary is hardly subtle: to hold a referendum represents an irresponsible, civility-curdling outrage: no reasonable soul could honourably agitate for separation. This control-freakery is fundamentally hostile to the democratic spirit in which this referendum is being conducted, sprouting from the bottom up, drafting a new generation of active citizens to crack open and blow a gust of fresh air through the dusty, reverent halls of politics as usual. 

Participative democracy is scrappy, untidy, and frequently impolite. Social media transforms anyone with a keyboard and an opinion into a publisher and commentator. You can, if the mood takes you, fire up Twitter and pour a vial of wrath over leading politicians you disagree with. It won't always be edifying or even instructive, but the opportunity to do so challenges the old stultifying deferences, separating the communicators and those communicated to, and the division of power and roles which this implies. 

Too often, we lack empathy with our opponents. It would be a better country, if more folk could see and understand where those who take a different tack on the constitution are coming from, not least because empathy is the best weapon. But let's keep a sense of proportion, and remember the value of an open society. Uncritically reporting baseless fears is innuendo, plain and simple, even if the anxieties are sincerely felt.

I know a number of folk on both sides, who have been reluctant to participate publicly in the constitutional debate for a range of reasons. Some are protecting their public standing and reputation. Others are trying to ride the two horses at once, anxious not to find themselves getting too publicly embroiled with the loser. Still more are determined in their constitutional views, but pretty lukewarm in them, and reluctant to become the face of one campaign, or the other. We each of us must make our own judgements on this score. But how we understand and construct that reticence is critically important.

"Shouting down" is becoming one of the referendum campaign's irregular verbs: I disagree with you. You shout me down. Alex Salmond behaves like Kim Jong-il. To explain to someone that you regard their case as unconvincing or wrong-headed is not shouting them down. To reject somebody's argument is not to "silence" them. Delusions of victimisation have their emotional compensations, but they disfigure our politics. To repackage disagreement as oppression is to do a fundamental disservice to the democratic process. People who disagree can be disagreeable. Argument can be uncomfortable. But if you feel tempted to regard that as the end of civilisation and the death of democracy, your democratic muscle needs serious toughening. 

1 June 2014

Bismarck's sausage

Law and sausages. Everyone knows Otto von Bismarck's famous, perhaps apocryphal, observation that you don't want to see either being made. Compressing mechanically-recovered meat slurry into more or less edible bangers can't be pretty. Legislation's gruesome aspect comes in different forms. Compromised, unprincipled, and sometimes just dawg gawn incoherent - some of the Acts emerging from parliament require a strong stomach or a crippling cynicism fully to appreciate. But Bismarck was an authoritarian old sod, and in any case, a certain messiness is democratic. Consensus is hard won, and often better reflects and accommodates disparate strands of opinion than a pristine conceptual scheme, sprung from a single head.

Sometimes though, it isn't just the process which makes you queasy, but the outcome. Sometimes, neither the law nor the sausage comes up to snuff.  In some respects, I'm beginning to wonder whether Holyrood's Scottish Independence Referendum Act of 2013 is one of the duds. A few weeks by, I suggested that one significant problem with the legislation is that it hasn't been drafted in full appreciation of the disparate nature of the Yes campaign and the range of citizen-led organisations involved.  There are now signs that the Act also seriously fails to take the digital context of the campaign properly into account. 

Recently developments have crystallised those anxieties. The Electoral Commission have issued this guidance for campaigners in the referendum. It isn't aimed only at those organisations who've signed up for "permitted participant" status and gained the right to spend up to £150,000 in the campaign, but at the whole gamut of campaigners in this poll, which is to say, everybody agitating for one side or the other. It made me go back to the legislation, where I made this startling discovery.   

Paragraph 27 of Schedule 4 regulates any and all publications during the referendum's regulated period - which we're just entering. On penalty of criminal prosecution, material "wholly or mainly relating to the referendum" - whether printed or online - is not to be published unless it is accompanied by the name and address of the individual or organisation promoting it.  Failure to comply can attract a fine of anything up to £5,000. So what's this about? On the one hand, this rule has obvious applications. It wouldn't be transparent or fair, for example, for a shadowy organisation agitating for a No vote to distribute obnoxious fliers, purportedly from the Yes campaign, with a view to buggering up their opponent's case and cultivating a false and negative impression of its argument. And fair enough as far as it goes.  But the rule set out in the legislation goes way beyond this.

What is moderately disturbing about this requirement to publish your name and address is that - legally - it is not limited in application to Yes Scotland and Better Together, to political parties, or to "permitted participants" like Women for Independence or Vote No Borders. Its strictures attach to any published material "wholly or mainly relating to the referendum." That means that it covers tweets, facebook posts - the whole gamut of social media, in fact - which is made "available to the public at large, or any section of the public, in whatever form and by whatever means" and which "relates wholly or mainly to the referendum." Given the popularity of these sites, chances are, it means you and anything you write or say on them about the September poll. Which is mental. 

In its new guidance, the Electoral Commission suggest that campaigners embed an "imprint" of this information on their Twitter profile using a link-shrinker. But understandably, few folk discussing this online are liable to be particularly keen to broadcast their location and sometimes their identity to heaven knows who.  When this came up on twitter yesterday afternoon, a number of folk protested that these rules apply only to registered campaigners. But look at the Act. You'll find nothing in there restricting these publishing rules to the bigger campaigning organisations. 

Indeed, the opposite is true. The legislation specifically limits the application of some of the rules to registered campaigns. For example, the duty to report donations over £500 doesn't attach to unregistered individual and bodies who don't intend to spend more than £10,000 in promoting their preferred referendum outcomes.  We find no such specification when it comes to these publishing rules. Applying ordinary principles of statutory construction, that means that the requirement to attach your name and address to referendum publications, in principle, attaches to anyone and everyone. The explanatory notes accompanying the Act (particularly paragraphs 185 to 186) support this broad reading of the provisions, as extending beyond the bigger campaigning bodies. 

The upshot? Every idle, inane, unserious tweet touching on the poll seems to count as a publication under the legislation. Every twitterer, or facebook user who shares thoughts "wholly or mainly relating to the referendum", without telling the whole world where they stay, is violating the law of the land and at-risk of being screwed out of five grand. In practice? There's a snowball's chance in hell that the Electoral Commission will enforce the law as passed to its full extent, stifling free expression and interfering inordinately with peoples' privacy. The Commission indicates in its guidance that it "will not usually consider taking enforcement action where it is clear from the document who is responsible for its production." While you can work out my identity from my profile, the same doesn't go for many other, perfectly civilised, bloggers and tweeters involved in the referendum debate. What of them?

It is all very well for the Electoral Commission to work around the law's absurd breadth and lack of social media savvy - but why the devil didn't it occur to our politicians, when passing this Act, to factor in the contemporary realities of the online dimension, which feature so prominently in the #indyref debate? The provisions in the Scottish legislation are substantially based on a piece of Westminster legislation which is now almost a decade and a half old, pre-dating the rise of facebook and twitter's flourishing. Why didn't our MSPs take free expression seriously enough, to affect a work-around and to reflect the new age of mass citizen "publishers" with a thing or two to say about political affairs?

Applying the legislation in practice, I find it impossible to believe that the Commission will despatch its inquisitors to winkle out the identities of folk like @loveandgarbage. Individuals wittering about the referendum will almost certainly avoid being fleeced in the courts for their failure to comply with the law. But that is what the law Holyrood adopted to regulate this referendum enshrines.  

Several areas of civil and criminal justice now struggle to keep up or cope with recent developments in social media. As the Sally Bercow-Lord McAlpine set-to demonstrated, the circulation of rumour dovetails untidily with the assumptions undergirding defamation law in the UK. Our legislation on contempt of court has been put under significant pressure by jurors' ability to research the accused person they are trying with a couple of clicks of a button. But given the prominence of social media in this campaign, it is disappointing and distressing to see Holyrood unimaginatively adopting such an outmoded and cavalier approach to the liberties of participants in this debate. This is one dodgy sausage.