26 April 2016

Just how solid is Scottish Labour's list vote?

Amid all the process and horse race stuff in this Holyrood election, there is one rather important question going conspicuously unasked: just how solid is Scottish Labour's list vote anyway? 

All the mischief has focused on the loyalty of folk likely to vote SNP in the constituencies. Will they stick with "Nicola Sturgeon for First Minister", or split their tickets, lending support to some other party for the regional calculation? This is all well and good. But the endless, circular conversation about the virtues and vices of #BothVotesSNP overlooks the fact that it is Kezia Dugdale's party whose fate will largely be determined by the d'Hondt calculations and the weight of support she can command on the regional ballot. 

And Scotland's electoral history being what it is, I wonder if Scottish Labour aren't more vulnerable to - potentially catastrophic - leakage in regional support than we've generally noticed. As countless commentators have pointed out, for years, in the wake of devolution, Labour didn't have a second vote strategy - they didn't need a second vote strategy - being comfortably returned to office on the back of the first-past-the-post constituencies and their reliable confrères, the Liberal Democrats.  

In this model, if Scottish Labour's electoral fortunes were to improve, you'd expect this to express itself in constituency gains rather than regional progress. But if the Holyrood map broadly follows Westminster's this election, the whole basis of Labour support will have been rearranged on a regional basis. In fairness, Scottish Labour are pushing their own #BothVotesLabour message. I'm sure old time Labour supporters who have stuck with the party will heed this and maintain a disciplined ticket. But the party aren't going great guns with the message. Which seems a decidedly strange thing, considering how critical a solid, loyal regional ballot is for the party's standing in the next parliament. 

Look at this historically. Take 2011. Alex Salmond's SNP secured 902,915 constituency ballots, and 876,421 in the regions. We shouldn't understand this as a straightforward 26,494 drop. The regional tally will include a decent whack of folk who voted for other parties in constituency contests. My favourite 2011 illustration of this dynamic was Ayr. A straightforward SNP vs Tory runoff, Conservative candidate John Scott secured 12,997 constituency votes, and a 1,113 vote majority over his SNP opponent. But in the region, the folk of Ayr gave the Tories only 8,539 votes, a drop of 4,458 on their constituency figures - and the SNP were the obvious beneficiaries of the Tory regional slump. Chic Brodie took 11,884 constituency votes, but Ayr's regional tally gave the Nats 14,377, an increase of 2,493 which put them 5,838 regional votes ahead of the Tories who'd routed their constituency campaign.  

So what about Labour? In 2011, Iain Gray took 630,461 constituency papers and just 523,559, losing over 100,000 votes between ballot papers. Like the SNP picture, we shouldn't oversimplify what was going on under Labour's grand totals. It almost certainly wasn't a tit for tat drop. Voters will have moved in, and out of, Labour's constituency and regional columns. But this was a discernibly squishier performance than the Nats in a closely contested campaign. In the event, Labour holds in constituencies in their traditional heartlands staved off some of the harsher consequences of this "voter promiscuity" in 2011. But if all does not go well for the party in its constituency battles in Glasgow and elsewhere - a gap of anything like 100,000 people is seriously going to hurt. And this, before we get into questions of differential turnout.

Part of me wonders if the electoral map in 2016 doesn't encourage an awkward dynamic for Kezia Dugdale, likely to encourage opponents of the SNP to lend her their constituency ballots, while distributing their regional votes elsewhere.  

Imagine you are a Labour voter of what we'll call the Alex Massie tradition. You voted No in 2014. You don't much care for the Nats. You live in a constituency where the Tories or the Lib Dems cannot prosper, where they're not even in the running. What do you do? Option One: damn the arithmetic and vote for what you believe in. If the local Tory or Liberal Democrat gains only a couple of thousand votes? Well, you salute their efforts. Alternatively, you might consider Option Two: use your constituency vote tactically vote for the Labour candidate most likely to frustrate the SNP. In Leith, say, you might support Lesley Hinds. In Glasgow, you might take a punt on Johann Lamont against Humza Yousaf. 

If Option Two seems attractive to you, however, there is a snowball's chance in hell that you're going to stick with the Labour party in the regions. You might also have a soft spot for one of the smaller parties who are only really in contention in the regional list. Perhaps you favour Brexit, and want to see a David Coburn, rolling around Holyrood, blaggarding the European Union. Perhaps Patrick Harvie seems like a sound character, and you want a decent Green delegation in Holyrood, advocating environmental concerns.  In local elections in areas in which they do well, the Greens are pretty transfer happy from a curious range of sources, including Scottish Tories. Perhaps you'd like RISE, modestly, to rise.

Given the parts of the country where Labour remains strongest against the SNP, I'd suggest the calculating anti-Nat and the floating, unpartisan, split-ticket voter is far more likely to cast a - perhaps doomed - constituency ballot for them rather than the vital, life-giving regional support Dugdale needs to survive. In fairness, recent polls suggest Labour's performance across the two ballots is pretty solid, at a (dismal) 18% to 19%.  A squishy list vote may be the least of her concerns. Time will tell.

14 April 2016

Red meat from Ruth Davidson, but where's the beef?

"End automatic early release!" It's red meat for the Tory base, and hearty stuff. Ruth Davidson's Scottish Tory Manifesto, published yesterday, contains the following passage on the party's proposals for criminal justice:

"We have long campaigned for the scrapping of automatic early release. The changes brought in by the SNP affect only 3% of prisoners (those on long sentences), but we believe the presumption for all sentences is that they should be served in full, with additional discretion for the Parole Board. The time offenders spend behind bars should be decided by judges and not politicians. Ending automatic early release would mean offenders serving the sentence handed out and spending more time in rehabilitation."

There are a few well-rehearsed ironies about this. Automatic early release was brought in across the UK by John Major's Conservative government in 1993. If every prisoner is going to serve his whole tariffs behind bars, it is far from clear what "additional discretion" she thinks the parole board might legitimately exercise. Perhaps she envisages some modest, compassionate exceptions to the massive programme of incarceration she is proposing. But I'm more interested in the resource implications of all this. 

To come even to a sketchy understanding of these costs, we have to take a closer look at (a) the automatic early release rules which currently apply and (b) the characteristics of the Scottish prison population.

At present, the amended Prisoners and Criminal Proceedings (Scotland) Act 1993 governs early release. So how does it work? The law distinguishes between (a) short term prisoners and (b) long term prisoners. Lifers are handled differently, serving the punishment part of their sentence, before parole may even be considered. Angus Sinclair, for example, received a 37 year punishment part for the murders of Christine Eadie and Helen Scott, forever associated with the World's End pub in Edinburgh. For Sinclair, life means life.

The 1993 Act defines a short term prisoner as someone serving a prison term of less than four years, with a long term prisoner defined as a convict sent down for four years of more.  A short term prisoner is entitled to be released unconditionally from prison after serving half their sentence. A long term prisoner is entitled to be released on licence -- and thus is vulnerable to recall if they get up to mischief -- after serving two thirds of their prison sentence. The rules for prisoners serving longer sentences were tweaked at the tail end of the Holyrood session, limiting automatic release to the last six months of a long term prisoner's sentence.  This, Ms Davidson wants to sweep all this away. 

Fine. But what would it cost? And how many people are we talking about? Official statistics show that the average daily prison population continues to hover around the 8,000 mark. Figures from July 2015, for example, gave an daily average population of 8,062. The overwhelming majority of these men and women are serving "short sentences" - sentences which would double in length under a Davidson administration. Take a look at this Scottish Government chart from December 2015, on receptions to prisons by year, and by sentence length.

Taking 2013/14, you can see there were around 1,000 prisoners sentenced to prison terms of more than 2 years but less than 4 years. A further 2,500 individuals entered jail with a prison tariff of 3 months or less, with around 3,000 people serving between 3 month and 6 month sentences. Finally, over 5,500 serving sentences of between 6 months and two years. All of these incoming prisoners - under Davidson's plans - would end up serving double their current terms behind bars. The Scottish Tories proposing to double the prison terms served by - roughly - 12,000 people.

Now, you may or may not have sympathy with the principle of this policy, either on grounds of vengeance, or transparency. I'd merely note that our judges aren't idiots. They understand perfectly well that those they sentence to prison terms will be released once they've spent sufficient time in prison. They aren't hoodwinked by early release. Indeed, some judges may well factor the real term to be spent incarcerated into their sentencing. 

But ask the money question. Do a fagpacket calculation. Consider the implications. Under Ruth Davidson's plans, every single short term prisoner will be serving double the period of incarceration they are currently serving, during which period, you and I will be picking up the tab for their food and housing, their supervision, and their modest diversion while behind bars.

Let me remind you also: the costs of doing so are not insignificant. The average annual cost per prisoner place for 2013–14 was £33,153, excluding capital charges, exceptional compensation claims and the cost of the escort contract.

You may well think this a tariff worth paying. But it is no small amount of money. And this estimate is just the revenue cost. We haven't even begun to factor in the implications of cancelling early release for capital spending, or the social costs of further swelling the population of our Victorian prisons, with implications for the quality of life, the degree of supervision available, and the availability of rehabilitation services. 

Scotland simply does not have the space in its overstuffed prisons to accommodate a significantly larger prison population. Overspill facilities will have to be built, and funds allocated and buildings planned to ensure that our prison population is kept in appropriate conditions with a decent minimum standard. And that takes money, and that takes time.  But what does Ms Davidson say about how she intends to meet these very significant revenue and capital costs? Sod all. What plan does her manifesto outline? No plan at all. And where will the additional cuts fall to meet the significant costs of this policy? Answer came there none. 

No doubt Ms Davidson's answer, if challenged about any of this would be "We're just the plucky opposition. We're losers. We're only trying to give Scottish Labour a kicking: not to get into government." But that won't do at all. "I've no chance of power and therefore I should be able to make whatever uncosted pledges I like" shouldn't cut it either.  Just ask that mighty master of detail, David Coburn MEP.

If Ruth Davidson wants her party to be the serious party of opposition in Holyrood, she's going to have to take her own policy platform much more seriously. If this massive, uncosted justice pledge is anything to go by -- like her photo ops and her "blue collar" rhetoric -- it's all still a big joke.

13 April 2016

A first for women: Lady Dorrian appointed Lord Justice Clerk

Today, it has been announced that Leeona Dorrian has been appointed to the position of Lord Justice Clerk, Scotland's second most senior judge. Congratulations are to be extended to Lady Dorrian. But this is also a quietly historic occasion: Lady Dorrian is the first woman in Scottish legal history to hold this post.

At this stage, crustier lawyers amongst you may begin to shift uncomfortably, rhubarbing about individual merit, changed days, and so on. And fair enough, as far as it goes. But we do ourselves no favours if we forget our history, and Lady Dorrian's appointment is historic.

For the overwhelming majority of Scotland's history as a distinctive legal jurisdiction, women have been subject to the law, but haven't been permitted to shape it, whether in parliament, or on the bench. The progress of women's rights in the democratic domain at the beginning of the twentieth century is a weel-kent story. The 1918 Representation of the People Act conceded the principle of women's suffrage. This principle became more universal thereafter. Less well known, however, is the history of women's exclusion from the legal field. 

Until the Sex Disqualification (Removal) Act 1919, women were not permitted to become solicitors or advocates in Scottish courts. This was just one of a range of disqualifications which prevented women from fully participating in civic and political life. In the 1880s, the legality of these bans were challenged by women's rights activists in courts north and south of the border.  In Nairn v Scottish Ministers, for example, a group of women challenged the failure of the ancient universities to issue them with ballot papers. These women were graduates. They held degrees. The legislation which creates these university constituencies referred only to "persons" who were entitled to vote in their elections. Aren't women "persons"? 

Remarkably, the highest court in the land held that they were not. Rejecting the women's case, the Lord Chancellor, Lord Loreburn, upheld Edinburgh University’s refusal to issue its women graduates with ballot papers, saying: “this disability of women has been taken for granted", concluding "it is incomprehensible to me that anyone acquainted with our laws or the methods by which they are ascertained can think, if indeed, anyone does think, there is room for argument on such a point." So it was official: legally, women weren't "persons". But dissatisfaction drove reform. The 1919 Act allowed women to become officers of the court, if they met the requisite standards of qualification and training. It turned out women were "persons" after all.

The first woman was called to the Scottish Bar in July 1923 -- Margaret Kidd KC. Kidd was a fairly quiet, very conservative trailblazer. She was subsequently appointed sheriff and sheriff principal, but she remained a lonely representative of womankind in the corridors of Scottish lawyering for a remarkable period of time. The second female advocate – Isabel Sinclair – was not admitted to the Faculty until 1949, some twenty-six years later.  It took until 1981 for the Faculty roll to boast more than 10 female advocates. It is unsurprising, as a result, that the experience of pioneer women in the late 1970s, 1980s and 1990s was not always positive. One Scotsman article recounted this example from the life of the new Justice Clerk:

Isabel Sinclair QC “was rebuked by Lord Cameron for wearing red lipstick in court. As recently as a decade ago Leeona Dorrian QC was ticked off for wearing a red ribbon around her neck after the judge told her she was “improperly dressed.’”

The first woman was not appointed to the Court of Session bench until 1996, when Hazel Aronson - Lady Cosgrove - was appointed. That's in my lifetime - only twenty years ago. Recent Law Society of Scotland data shows the history of male dominance in Scots law is being - slowly - challenged. Currently, there are over 11,000 solicitor enrolled with the Law Society, with a roughly 50/50 breakdown. But a look at the longer-term figures show that the feminising of the Scottish legal profession remains a modern, fairly recent phenomenon. Just consider the statistics from the turn of the millennium onwards.

So bravo, Lady Dorrian. I'm sure the appointment reflects considerations of personal merit above all. But let's not overlook the understated symbolism of her appointment too. Although the law has hardly been an early adopter, Lady Dorrian's appointment shows that even the Scottish legal establishment cannot evade the gender revolution forever.

3 April 2016

More Than A Shrug

It is a delicate thing, writing about someone else's sexuality, with many pitfalls and opportunities for bumptiousness and embarrassment. I approach the whole thing gingerly, and I hope, humanely.

As many of you will have noticed, this week, Kezia Dugdale told the Fabian Review that she is in a relationship with a woman. “I have a female partner. I don’t talk about it very much because I don’t feel I need to,” the Scottish Labour leader said, in the midst of a wide-ranging political interview, which has gone on to cause her trouble for different reasons

The public reaction to Dugdale's personal aside has been overwhelmingly positive and supportive, which is a grand and excellent thing. No doubt some dismal Free Church minister is boiling away on the hob about it -- but most folk will be quite content to judge Kezia Dudale on her relative political and personal merits, and not her sexuality. Good. This is a historical achievement -- but still, something about how the story has been reported makes me a little uneasy.

First, the background.  The truth is, it has taken Dugdale a substantial period of time to come out to the general public, although all the hacks and the political world have known about her domestic circumstances for a lengthy period of time. Hell, even I'd heard tell. As hawk-eyed folk might have noticed, Telegraph Scotland editor Alan Cochrane carelessly - and I assume, quite accidentally - outed the Scottish Labour leader some months ago, by muddling up the number of LGBT leaders in Holyrood, and clumsily incorporating Dugdale into his copy. This faux pas went by, unremarked, but not unnoticed.

To be absolutely clear - I mention this as no criticism of Kezia Dugdale. She is entitled to expose as much - and as little - or her personal life to public scrutiny as she cares to. But it is an eloquent illustration of how much times have changed, that the Holyrood press pack - with only a little befuddlement about the delay - left it to the Scottish Labour leader to come out to the country, in her own terms, at her own time.

But I wonder if we aren't doing Ms Dugdale some kind of injustice, to say that her terse, carefully coordinated and long-germinating public profession of her sexuality should attract only a general shrug. I'm reminded of Alex Massie's essentially kind and humane thoughts, on David Mundell's public recognition of his sexuality (which like Kezia's, came after a lengthy period of speculation, in that odd space, between the public and the private). Massie's slogan was; "so what?" And "so what" indeed.

In one sense, this emancipated public indifference to the personal lives of our politicians is much to be wished. Who cares? But let's not overlook the emotional trouble - the heartsick struggles - which it may have taken for both Dugdale, and Mundell, and Davidson and Harvie before them, publicly to avow these aspects of their personal lives.

As recently as the early 2000s, the Daily Record disgraced itself, spearheading Brian Souter's vile, sleazy and neurotic campaign against informing young people in schools about the realities of LGBT sexuality. Give the self-appointed spokesmen of God an inch, and they will still say the most remarkable, illberal things. Just this year, I had my young law students read through what the Kirk and the Scotsman had to say in the 1960s, when the decriminalisation of same-sex relationships was first proposed in the United Kingdom.

Their horrified reactions about the rigidly righteous moral judgements of their ancestors remains one of the most memorable moments of 2015. My band of thoughtful 20 year olds simply couldn't contemplate that their parents and grandparents had adopted to cramped, so illiberal, so unimaginative a point of view. They looked at the past with naked, almost universal, disbelief. While England swept away the great part of its discriminatory law in the late 1960s, Scotland continued to criminalise the great part of ordinary homosexual activity until the 1980s. This was before I was born -- before my students were born -- but only just.

If your inclination is to shrug about Kezia Dugdale's considered aside about her sexuality -- I salute you. But spare a moment to salute her too. For her courage. For her strength. For her indefatigability. Even in Scotland's now more open political culture, it is no mean thing that she, and Ruth Davidson, and Patrick Harvie, and David Mundell, have done. They deserve - all of them - more than just a shrug.

Old Habits

This may be a record. The first full week of the Holyrood campaign has whizzed by, and already - already - Scottish Labour figures are making headlines by briefing the press against their leader.

In the Sunday Times this morning, under the legend, "Labour at war as Dugdale gaffes," ubiquitous and available "senior figures" in the party are quoted. Their verdict on Kezia Dugdale's week isn't terrifically healthy. She is, they suggest, "badly damaged" as the result of her muddled comments on how she might vote in a future independence referendum. One even described it as her "Subway moment", recalling the moment when Iain Gray sought refuge behind a meatball marinara, waylaid by Sean Clerkin in Glasgow Central Station in 2011. 

Now, Dugdale has not had her troubles to seek this week. There has been indiscipline. There have been mispitches. But surely there are enough folk like me in the firmament to point this out, without her comrades gleefully piling in, breathing unholy life back into a bad news story which would otherwise be on its last legs. The killer quotations:

“This is an almighty clusterf**k,” said one senior Labour source. “It just plays into the Tory line that they are the true defenders of the Union, even though that’s not true because it’s the Tories who introduced English votes for English laws and caused the EU referendum. Kez should have been landing blows on them, not on the Scottish Labour party.” 
One said Dugdale had “handed a massive gift to the Tory party” at a time when they were under pressure as a result of a backlash against the chancellor’s budget. “Kez has again let them off the hook.” 
Another said it was Dugdale’s “Subway” moment — a reference to the defining moment of Labour’s ill-fated 2011 Holyrood campaign when its leader Iain Gray sought refuge in a sandwich shop after his election campaign launch was hijacked by a protester.

As a hardened partisan, and no friend of the party, I suppose I ought to meet news of this utterly gratuitous infighting with an evil chortle. But Scottish Labour's capacity for indiscreet and poisonous internal briefing remains a thing of wonder and horror to me. Even electoral calamity - apparently - can't wean the party off its old habits of backbiting and internecine conflict.

After disaster has engulfed the party in Westminster, as it fights for its life in Scotland, as its untried leader faces a little turbulence along the way, as all election campaigns must -- you decide to spill the beans to the press, well knowing that an article of this kind is the only logical outcome? Jeezo. You wonder which bored and embittered former MP might be responsible. "If we must lose, let's lose in the most internally divisive and publicly exposed way possible." Just a little lick of the cloak and the dagger, for old time's sake.

Their analysis may be perfectly sound, but quite what they imagine they're achieving is beyond me. Snark of this kind provides a little entertainment for folk like me on a wet Sunday morning. It adds to the gaiety of the nation. But if these "senior sources" are true friends of the Scottish Labour Party, their shadowy, counter-productive interventions are - fundamentally - crackers.