26 March 2014

Europe in the Magic Lantern

Giddy with constitutional politics, we seem to have forgotten that there is a real darn-tootin' election in these parts in just a few months time. 

I've blogged a couple of times before about about May's elections to the European Parliament. Scotland sends six MEPs to Strasbourg and Brussels - depending on whatever day of the week it is.  To keep the public suitably bamboozled by the wealth of electoral systems we employ in this country, Europe offers yet another variation on the theme.  Like Holyrood's regional seats, parties rank their candidates in order and we use the d'Hondt mechanism to allocate the European jobs.  Unlike elections to the Scottish Parliament, however, for Europe, we're treated as one big, single constituency, and the votes are added up from Aberdeen to Auchinleck and from the isle of Skye to the eastmost edge of the Orkney islands.

So what do the portents tell us? For scallcrows, who enjoy cackling over the spent cadavers of Liberal Democrats, the European poll looks likely to throw up another victim in George Lyon, who has been buggered by the general collapse in Scottish support for his party.  So who looks likely to benefit from his electoral evisceration? 

Not the Tories, who look well placed to retain their European seat, but are still in no danger of threatening another.  Nor Labour.  Given the level at which the SNP is polling, the election of a third Labour politician looks damn near impossible.  Holding their two MEPs is a more modest, but eminently more achievable aspiration. By contrast, both the Greens and UKIP are hopping about enthusiastically, as are the SNP who fought an uncharacteristically lively fight for third place on the European last, after the current incumbents, Alyn Smith and European old-timer Ian Hudghton.  So what are Tasmina Ahmed-Sheikh's chances?

If Monday's ICM poll is anything to go by, Tasmina can begin anticipating the Belgian moules frites. While my pals in the Greens continue to argue - not without credibility - for strategic Green voting in the May's poll, this week's poll confirms the earlier assessment that an SNP gain at the expense of the Liberals may be more likely than Scotland despatching its first Green or UKIP parliamentarian to sit in the European parliament. 

ICM's full tables break down voting intentions in a range of different ways, collating the opinions of all those who say they will vote, and providing a second table, weighted by ICM for turnout. As it happens, this weighting doesn't make a substantial difference to the overall numbers, nicking a percentage point from the Greens and Labour, and bumping SNP support by a point. Overall, using the unweighted numbers to give the smaller parties the greatest look in, ICM found the following levels of support for each party:

So how does that shake out in terms of outcomes, it we run those figures through the d'Hondt allocation system?

The lesson? The Greens and UKIP will have to significant outperform the current polls if either party is to stand the proverbial snowball's chance in hell of prying the sixth European seat from George Lyon's cold dead hands. That's not an impossibility. Turnout in European elections in Scotland is notoriously poor. It may be also that Nationalist support is rather over-egged here, and the party's actual performance on polling day will throw Ahmed-Shiekh's hopes and ambitions of taking a third European seat in doubt. As Gary Dunion notes in a recent piece in the Scottish Left Review, every vote for the SNP will have just a third of its value come the fifth and sixth stage of the allocation, having already been significantly reduced by the d'Hondt divider (seats already won + 1).  A window of opportunity then for Maggie Chapman and the ghastly David Coburn -- however narrow.

25 March 2014

Aberdeen's unhinged local government

Local authorities sometimes like to think of themselves as little parliaments, but legally, they're different beasties. While Holyrood has the power to legislate in all areas which haven't been reserved to Westminster, the powers of city and regional councils are entirely different. Rather than specifying what powers local authorities don't have, and granting them everything else, councils can only exercise the authority parliament explicitly gives them - and anything incidental to realising those functions. 

Where councils step outside of their powers, the courts can step in.  It doesn't matter if the council's great new wheeze is a splendid and socially beneficial idea. If they don't have legal authority for their actions, they're unlawful and liable to be squelched in judicial review.  In the 1980s, Strathclyde Regional Council wanted to add fluoride to the local water supply, aspiring to improve the gnashers of the average Glaswegian.  In the Court of Session, Lord Jauncey held this scheme was ultra vires, as the legislation didn't give the Council authority to adulterate the supplies of water for which it was responsible.  

More recently,  Glasgow City Council tried to use its statutory alcohol licensing powers to give itself the power to regulate how much clothing strippers in city establishments were required to keep on during performances, and the quantity of sunlight to be left between patrons and dancers. Lord Eassie wasn't having it, and the Inner House of the Court of Session determined that the whole scheme had no statutory basis.  Although drink might be taken in strip clubs, the Council has no locus to dictate terms to Spearmint Rhino and others, on pain of losing their alcohol licenses. The scheme was beyond the Council's powers.

It was with these limits in mind that I read with interest that Aberdeen City Council - seemingly a hotbed of Labour Party fucknuttery - had decided to brighten up its council tax bills with publicly-funded letters, urging its rate-payers to share its view that Scottish independence is a deuced iffy prospect.  One response, rooted in political whataboutery, contends that if the Scottish Government can use public funds to promote independence, what's stopping the loyal Union adherents of the north east from availing themselves of public funds to share their own perspective with voters? What's sauce for the goose is sauce for the gander, as they say.  

As fascinating as I find that rejoinder, the issue is one of law - not just of politics. Local and national governments don't have the same powers. Legally, they aren't gooses and ganders: it is a false and unhelpful parallel. So given the limited nature of Aberdeen City Council's powers, under what authority is the august Cooncillor Crockett justifying the expenditure of public cash to share his constitutional preferences with the punters?

Malcolm Combe of the University of Aberdeen, who got one of these letter through his letterbox, raises these questions in a recent blog. Malcolm wonders if it might be justified under a fairly wide section of the Local Government in Scotland Act 2003. I'm not so sure. I asked the University of Glasgow's Professor Adam Tomkins about them last night. My Strathclyde colleague Dr Chris McCorkindale weighed in with a reference to the case of R v ILEA ex parte Westminster City Council from the 1980s. There, Westminster Council employed its general statutory power to "inform the public" to promote its own political preferences. The Court of Appeal held that this spending was for an improper political purpose, and the veneer of "information" wouldn't save the Council's partisan publicity campaign. The scheme was declared ultra vires. You have to wonder if this pro-Union campaign in Aberdeen could withstand similar legal scrutiny.

In statute, we can find more explicit limits on councils' powers. Under the Local Government Act of 1986, for example, councils are prohibited from publishing "political publicity", which is defined as "any material which, in whole or in part, appears to be designed to affect public support for a political party". This extends to Scottish local authorities -- including Aberdeen City Council, will or nil its ruling Labour-led coalition. In a 1988 amendment, parliament included this significant aid to construction of this section:

2(2) In determining whether material falls within the prohibition regard shall be had to the content and style of the material, the time and other circumstances of publication and the likely effect on those to whom it is directed and, in particular, to the following matters—
(a) whether the material refers to a political party or to persons identified with a political party or promotes or opposes a point of view on a question of political controversy which is identifiable as the view of one political party and not of another;
(b) where the material is part of a campaign, the effect which the campaign appears to be designed to achieve.

Does Council Leader Barney Crockett's letter to the folk of Aberdeen fall foul of this section? There's at least an argument that it does. To violate the ban on employing council resources for political propaganda, we need only demonstrate that the Council message "promotes or opposes a point of view on a question of political controversy which is identifiable as the view of one political party and not of another". It is difficult to see the referendum in any other light. Councillor Crockett might contend that his letter takes aim at the aspiration of independence, not support for the SNP per se. To my eye, that position seems difficult to maintain in light of the amendment, and the issues it invites the courts and the council to consider in determining whether using public funds to pay for your partisan correspondence is prohibited or permitted. 

It remains to be seen whether anybody will have the gumption to challenge Aberdeen City Council's behaviour in court.  Were they to do so, however, it looks like there's at least an arguable case to be prosecuted against this ultra partisan and apparently unhinged local authority.

19 March 2014

Constitutional illiteracy

The public know one thing about the British constitution, and it isn't true. The criminal lawyer is always asked how she can bear to represent a defendant who she suspects to be guilty of some ghastly offence. The constitutional lawyer is always ribbed because he doesn't really study anything at all.

I've lost count of the number of times a twinkly pub bore has advised me that "there's no such thing as a UK constitution". As my undergraduate students will tell you, perhaps to their regret, for all of the confident simplicity of the over-refreshed citizen's legal analysis, this isn't really the case. We may have no single foundational document headed "we the people" which you can point to as the wellspring of constitutional ideas in Britain, but we are not without fundamental principles and concepts around which our law and politics are organised. 

The sovereignty of parliament is one of those fundamental principles. In its most basic formulation, it means that parliament can make or unmake any law it pleases. Under a codified constitution, legislative power is characteristically established subject to limitations. If an Act violates constitutional rights, for example, courts may step in and declare the legislation invalid, unconstitutional. In the UK, by contrast, parliament is sovereign today, sovereign twenty years ago, and sovereign tomorrow. The representatives forming it may age, may resign, may die, but election to election, decade to decade, the parliament remains possessed of its unalienable sovereignty. In practice, this means that no parliament can bind its successors, and every piece of legislation is vulnerable to repeal if a majority in the Lords and Commons can be mustered for it. 

This orthodox account has been considerably shaken by the implications of Britain's membership of the European Union and the supremacy of European law. The law on the books diverges significantly from political practice. There is also a long-standing dispute about the extent to which Westminster is empowered to disapply fundamental provisions of the Act of Union.  

But in general terms, most if not all constitutional lawyers in the UK recognise that without jettisoning the idea of parliamentary sovereignty and establishing a new and more limited legislature under a written constitution, entrenching Bills of Rights or statutes is a non-starter.  The Blair government recognised as much when it introduced the Human Rights Act 1998.  Elements of the Conservative Party are keen to exercise this authority to "Axe the Act" after the next general election. The same legal vulnerability extends to the devolution settlement.

That context in mind, I read Scottish Labour's wheeze to "entrench" devolution with interest. Yesterday's devolution commission report reads, in part:

"The Scottish Parliament is a permanent feature of the UK constitution and that legal provision should be made to reflect the political reality that the Scottish Parliament is indissoluble and permanently entrenched in the UK constitution. We also recommend that the “Sewel convention” should be given a statutory basis. This should be enshrined in law to give effect to the convention that the UK Parliament regards the right of the Scottish Parliament to legislate for the matters it properly controls, and that its powers cannot be changed without its consent."
But can it be done? In a limited sense, perhaps. Westminster may be able to immunise the Scotland Act against implied repeal. But express repeal? Without a revolution in British constitutional law, that's a non-starter.

Consider this scenario, which might as well be a problem in an undergraduate tutorial. Having defeating the perfidious Scottish Nationalist forces in the September referendum, in early 2015, Westminster amends the Scotland Act to fulfil Labour's ambition to "permanently entrench" devolution. Section 1(1) of the Act provides that "there shall be a Scottish Parliament". After this provision, MPs sneak in the amendment that "Section 1(1) of this Act shall not be susceptible to repeal or amendment by any other enactment or subordinate legislation in all time coming."

Whizz forward a month or two, and MPs find themselves once again embroiled in a corrosive expenses scandal, accompanied by a fresh financial crisis. Capitalising on the public disquiet, a buoyant Nigel Farage leads UKIP into an unexpected triumph in the general election poll, forming a minority government in the Commons. Supported by disparate and disgruntled elements of the Labour and Conservative MPs, Farage introduces a Bill to repeal the Scotland Act and abolish the Scottish Parliament tout suite.

Passing the Lords and Commons by the slimmest of margins, the monarch follows convention, giving royal assent to the legislation. Outraged, MSPs mount a legal challenge, arguing that the 2015 amendment prohibits Farage's parliamentary majority from taking the step, and the purported abolition of Holyrood was ineffective. Imagine you are one of the justices sitting in the UK Supreme Court hearing the case. What do you do?

The orthodox answer is that parliament cannot bind its successors, and the later, explicit enactment prevails over the earlier prohibition on MPs meddling with Holyrood. Despite its stern language, interpreted in the light of basic constitutional principles, the amendment was legally ineffective fluff; the Scottish version of section 18 of the European Union Act of 2011. Politically significant, perhaps - a declaration of intent on the part of legislators - but no legal let or hindrance on parliament obliterating Holyrood if it acquired the inclination so to do.

Nothing in the Labour document shows an awareness of any of this. It is difficult to disagree with Ian Smart's assessment, in a trenchant critique of the Labour report last night:
"And as for the idea that the Scottish Parliament could not be abolished without its consent? Where to start. Certainly, even now, that would be politically unthinkable, but for that to be "outlawed" wouldn't be possible without ripping up the UK's unwritten constitution and starting again with a properly written one. For what it's worth, once again, I am personally for that but that constitution can't be written unilaterally by less than ten percent of the UK's population, let alone by one political Party within it."

18 March 2014

Labour's lukewarm devosomething prospectus

When not indulging in sentimental British nationalist storytelling, Scottish Labour's case for the Union tends to rest on what Colin Kidd has usefully described as "instrumental unionism". The metaphors and tropes will doubtless be familiar to you. The pooling of resources and the sharing of risk; social solidarity; marching on a shared mission of social justice in these islands. Not fluttering union jacks and the trooping of the colour, but an argument that the Union is:

"... as Gordon Brown has suggested, founded on a moral purpose – that no matter where you reside and what your background is, every citizen enjoys the dignity of not just equal civil and political rights, but the same basic social and economic rights. Because we pool and share our resources, the moral purpose of the union is to deliver opportunity and security for all UK citizens irrespective of race, gender or religion – or location" (p.3)

Unsurprisingly, these arguments are well to the fore in today's report from the party's Devolution Commission, charged by Johann with dreaming up a compelling alternative vista to tempt Scots to vote against separation in September. The proposals are already being criticised by the usual suspects, but I wanted to pick up just one curious strand of argument running through the document.  Justifying their decision to rule out the devolution of "the core of the Welfare state", the commission revisit the theme, emphasising the importance of maintaining:
"... common UK-wide pensions, common UK social insurance, common UK benefits, a common UK minimum wage, and a UK system of equalising resources, so that everyone irrespective of where they stay benefits from fundamental political, social and economic rights."

"... in this union, we pool and share resources to ensure hard-working people, pensioners and those in need have equal economic, social and political rights throughout the entire UK. This is an idea – founded on solidarity, community and fairness – that is much greater than any notion of creating an independent state."

As grounds to justify their refusal to transfer key benefits, this argument is not without its allure. An instrumental politics of the union in this line is only possible if we are held together by the redistribution and exchange of resources across the whole country.  Invest Holyrood with responsibility for great tranches of welfare, and the Labour party is left making the instrumental case for Union on the basis of reserved forms of taxation - good luck with that one - or by appealing to the lip-quivering patriotism recently espoused by the Prime Minister in London. 

The husk of an instrumental case for the union can survive Iain Duncan Smith's parsimonious tenure in the Department for Work and Pensions; devolution of great tranches of welfare decision-making to the Scottish Parliament would reduce it to dust. It is not a surprise, therefore, that Johann's commission has declined to endorse it. 

I do wonder, however, how far this "solidarity and fairness" logic can really be taken. The Commission state boldly that it is integral to the stability and ethical purpose of the union that folk have access to the same "social and economic" rights irrespective of "location". But is this even true under the current devolution settlement? For example, education is widely considered to be a core social right, yet the English undergraduate must sink £9,000 into debt to fund her degree each year, while her Glaswegian cousin studies for free. This has been widely criticised as an inequity in parts of the media, and by politicians like Boris Johnson, but is fundamentally what devolution is all about, allowing spending to be allocated differently according to different political preferences, giving different substance to key social and economic rights which citizens have access to in different parts of the UK. 

There are other examples. The right to access to health care is another core social right, but there are already cross-border differences. If your Aunt Peg needs regular statins for her dicky ticker, the Scottish Government will foot the bill, but your Yorkshire cousin with a lardy tooth will have to stump up for his own pills. NHS England maintains a cancer drugs fund, the Scottish government has decided not to, to criticism in Holyrood from Ruth Davidson. A right to housing is another social right, but if you live in Berwick and find yourself impoverished by the Bedroom Tax, you're on your own; if you're north of the border, by hook or by crook, compensation for the reduced housing benefit will be found.  

From the citizen's perspective, your location in the UK already has significant implications for the scope of key social and economic rights available to you. Jobseeker's allowance may be identical, but it is a gross overstatement to claim that we currently enjoy the same basic social and economic rights in this country from John O'Groats to Land's end. Conceptually, welfare devolution isn't so readily insulated from these wider issues. If we are, as Ed Miliband insistently proclaims, "one nation", what justify these differences in treatment? If the integrity of the Union relies on having the same civil, political, economic rights everywhere in these islands, how can devolution and its outcomes be justified? Do tuition fees and free prescriptions not, at least to some extent, undermine the sameness and solidarity cited to keep almost all of social security reserved?

One of the curiosities of the referendum debate is that many of the writers who are explicitly keenest on a federal solution to Britain's current constitutional crisis - the Scotland on Sunday's Kenny Farquharson and David Torrance come to mind - are also enthusiastic proponents of the idea that political opinion among the wildling tribes of Scotland is more or less similar to those living south of the wall. As Gary Dunion observes in a piece on the European elections this morning, of Better Together:
"Crucial to their campaign is the argument that Scotland is politically no different to the rest of the UK, that our apparent predilection for more progressive policies is nothing more than an illusion brought on by our lack of fiscal responsibilities, a symptom of our subsidy junkiehood."

What bemuses me about the Torrance-Farquarson position is that, if true, it undermines not only the case for independence, but also for maintaining the current devolution settlement. If our political values and preferences are seamlessly of a piece across the country, what's the point in having an expensive assembly at the bottom of the Royal Mile to follow the English lead at a slower pace? If we don't have distinctive political aspirations in Northern Ireland, Wales and Scotland, why enshrine or extend the powers of these institutions at all? It is a question to which I am yet to hear a tolerably satisfactory answer. 

Scottish Labour's invocation of the values of equality, solidarity and fairness to reject devolution of welfare will serve for today's rearguard action in defence of their lukewarm prospectus for more powers. It does not answer the more fundamental question. Labour always insists that they are "the party of devolution". But why? To what end? Today's report is entitled "powers for the purpose", yet the party has struggled since 1999 to produce a compelling and sustained sense of what to do, having completed John Smith's "unfinished business".

Under Miliband's Westminster-centric "one nation" vision, it is becoming increasingly clear that the Labour Party's political imagination is fired primarily by a unitary vision of the British state, leaving their flailing northern functionaries at a loss as what to do with this awkward institution they helped found. 

16 March 2014

Scotland will be powerless to defend itself against Viking threat

Thunk. The sound of a messenger pigeon, ricochetting off my window. After a sustained lack of correspondence, my old friend and associate Ecclefechan Mackay (MA) of the Kinlochbervie Chronicle has been in touch with a copy of his latest edition. As ever, the pre-eminent political correspondent in the north west leads the way, with a marvellous scoop about the latest threat fatally undermining the credibility of the case for independence. By contrast, it makes this Telegraph tale looking piffling.  
Scotland will be powerless to defend itself against Viking threat 
Kinlochbervie Chronicle, 17th March 2014
Ecclefechan Mackay (MA), Political Correspondent
Resurgent Viking forces would pillage an independent Scotland's wealthy monasteries and coastal towns, independent experts have today confirmed.  Writing in the Kinlochbervie Chronicle, retired Vice-Admiral of the Pink Sir Wimple Stanley-Whipshot warns that a separate Scotland would "struggle" to preserve its maritime boundaries and historical treasures from the predations of larcenous Danes, Swedes and Norwegians after independence.  

It is understood that the National Museums of Scotland have begun piling their artefacts in preparation for the homicidal surge of Northmen "likely" to engulf the capital on or around the 19th of September 2014. Museum and gallery staff have been offered complementary gym memberships to prepare them for the heavy lifting and indentured servitude liable to accompany the reaving longship fleet.  

A spokesman for the the Catholics Bishops' Conference of Scotland has also confirmed that "non-essential illuminators and scriviners" are already being evacuated from the Church's frontline monasteries "as a precaution against separation," along with key texts and manuscripts.  Sources close to Archbishop Leo Cushley have privately confirmed that disgraced former Cardinal Keith O'Brien has been retained as a last line of defence at one threatened religious installation in the north east, having been granted rudimentary weapons training by special papal dispensation earlier in the year. 

A loophole in NATO membership rules means that States are solely responsible for their coastal defences where their attackers do not have access to black-powder weapons. Giving evidence at Westminster's Scottish Affairs Committee last week, Professor Adam Tomkins of the University of Glasgow accused the SNP government of "reckless disregard for the security of the realm", confirming that battleaxes and broadswords are not covered by the defence treaty. 

Under European Union law, pillaging Norsemen are guaranteed free movement of persons and capital within Scottish borders and are entitled to free instruction in our institutions of higher education. In a controversial judgment last year, the European Court of Justice in Brussels confirmed this includes the right to ransack and despoil public and private libraries, after a complaint by Danish citizen Ivar the Boneless. 
The Court also held that monastic attempts to restrain the exercise of these rights amounted to an unlawful "restriction on exports", justifying Ivar's use of lethal force. The Chief Abbot of the Order of Agatha the Unbalanced, deceased, has since apologised to the sailor, 6' 9". 

In a dramatic new development, President of the European Commission Jose Manuel Barroso weighed in to endorse Vice-Admiral Stanley-Whipshot's assessment of the risks of separation. Barroso, who spent much of his youth serving as an able seaman in a rum sloop trading in the South China seas, told the Chronicle "these are the rules of the club. A separate Scotland can't expect any special treatment."

However, pro-independence commentators point to the 1263 Battle of Largs as evidence that a separate Scotland could hold its own against the any woollen-wear and open-sandwich based coastal insurgency. Professor Stark Richardy of the respected Neil Oliver Centre for the Study of Scottish Antiquities commented "In the 13th century, we repulsed the invaders employing only a stern look and a placatory macaroni pie. I'd expect Scotland to appeal to the same defence resources after independence, with the same success."
An SNP spokesman said: "this is yet more scaremongering from Project Fear. The Deputy First Minister has made a careful study of the tactics of Danish warrior-queen Birgitte Nyborg over many months. In the unlikely event of a raid, Scottish forces will be well placed to repulse the Scandinavian assault." It is understood that contingency plans are already in place to take Lesley Riddoch into custody "within hours" of a Yes vote.
Responding to these Scottish Government defence plans, Sir Wimple Stanley-Whipshot told the Chronicle: "it's too little, too late. Alex Salmond is always bleating on about his Scandinavian vision for a separate Scotland. Now we know what he means. Blood in the snow, salt-water in the communion wine, and cold steel in the bosoms of our womenfolk. It's just not on."

9 March 2014

Vexatious Litigants

In the name of the Wee Man, surely not another challenge to the legality of the independence referendum? In this morning's Sunday Times, the paper reports that the Scottish Parliament's decision to limit the referendum franchise to those residing in Scotland is illegal under European Union law, and faces "good prospects" of being waylaid in our courts and declared unlawful.  

The story has since been picked up by the Daily Mail and others who characteristically carelessly misrepresent the case as a question of human rights - rather than EU - law.  James Wallace - the tiresome and self-promoting face of expatriate grief about being excluded from the referendum franchise - strikes again.  For those who breathed a sigh of relief after the Edinburgh Agreement was signed, hoping we were beyond such vexatious legal contrivances, this headline and the threat is unlikely to be welcome. 

The legal brain behind these reports is Aidan O'Neill QC.  O'Neill is a talented and creative public lawyer - but his recent track record in the UK courts also casts him as the patron saint of lost causes.  For those who have followed his recent cases, one can only be impressed by O'Neill capacity to scrape together a defensible argument from the scrappiest of material.  He has made extensive - and entirely unsuccessful - use of EU law arguments in his recent outings in our courts, seeking to challenge the bans on prisoner votes at the UK and Scottish level.  Even if Wallace and his aggrieved comrades scraped together the booty necessary to pursue their grievances in court, this is kite flying of the first order and if the UK Supreme Court was even willing to entertain the argument, I'd fully expect them to blast it out of the sky, as it has blasted each and every one of O'Neill's other playful attempts to extend the province of EU law to controversial questions of constitutional and public law. 

In the 2013 UK Supreme Court case of Chester and McGeogh, O'Neill attempted to persuade the seven justices that his (imprisoned) client's right to vote in European and Scottish parliamentary elections was protected not just by the European Convention on Human Rights, but also European Union law. His efforts to do so, while plucky and imaginative, were resoundingly unsuccessful. O'Neill's EU law submissions were unanimously rejected by the court.  

Not to be dissuaded, O'Neill re-deployed his expertise before Lord Glennie in the Outer House of the Court of Session in Moohan last December, contending that EU law prevented Holyrood from excluding another three prisoners from the referendum franchise. O'Neill argued that the referendum might deprive his three clients of their EU citizenship rights, and as a consequence, EU law was engaged and required their inclusion in September's plebiscite.  But like the Supreme Court, Lord Glennie wasn't willing to play. It remains to be seen if his argument will prosper better in the Inner House on appeal, but I rather doubt it.

Today's Sunday Times report seems to rely on the same logic O'Neill appealed to in Moohan. If three prisoners had a right to challenge the legality of the referendum on the grounds that they might lose their EU citizenship rights if there is a Yes vote, the same case could be made about the many more Scottish-born folk, who no longer live in Scottish constituencies, who won't be able to vote on the 18th of September. So what did the court make of O'Neill's submissions under this heading the last time they were tested? 

Short version: it didn't fly. EU law submissions having been vigorously spiked by Lord Mance and his colleagues in the UK Supreme Court, O'Neill was forced into something of a rearguard action, premised on the (controversial) question of Scotland's EU status after a Yes vote in the referendum. Lord Glennie concluded that:

"Even if I had found that EU law was engaged, on the basis that the independence referendum was a referendum directly affecting the question of EU membership and EU citizenship, I would not as a result necessarily have concluded that the franchise arrangements put in place by the Scottish Parliament in the Franchise Act contravened EU law."


"... in legal terms there is no simple answer, either in law or in fact. They correctly describe the legal situation as sui generis, pointing out that the various EU Treaties do not specifically cover the point. But the difficulty goes further than that. As is apparent from the terms of their Opinion, and as is perhaps obvious to anyone with even a passing acquaintance with the arguments for and against, 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.

The court is not in a position to know fully what political considerations will be brought to bear on the issue, and with what leverage. Accordingly, to ask the court to decide the question whether upon achieving independence Scotland would cease for a time to be a member of the EU, with consequences for its nationals in terms of their citizenship of the EU, would be to ask the court to predict the outcome of robust and complex negotiations. That is a question largely of fact. It is not a task which the court is equipped." 

If I was looking for a skilled advocate to help make an improbable public law case, I'd cheerfully instruct Mr O'Neill, confident he could cobble together something imaginative and take to his pins and make the case to the court with customary vigour and vim. You look to an advocate to put your case, however hopeless.  But politically, this is a dubious, late wrecking enterprise with which I have no sympathy whatever. Questions of the franchise are essentially political, yet we heard sod all from Wallace and his soured comrades when Holyrood came to consider the referendum franchise last year, arguing the case for a broader electoral role, accommodating interested voters south of the border, or elsewhere in these islands. They declined to make that case or campaign for it, winning allies and advancing their argument politically.

Having neglected that opportunity to contribute to our political processes, they now propose to go to law to right a perceived injustice they more or less mutely acceded to using a wildly speculative construction of European Union law. The appropriate place for these debates is the open air of the parliamentary chamber, not the narrow halls of our court houses.  The constitutional debate is fraught enough without the belated sallies of vexatious litigants.

5 March 2014

In (partial) defence of Kenny MacAskill...

Whichever way you slice it, corroboration reform has been ineptly handled.  It should not - it cannot - have surprised anybody in government that Lord Carloway's proposal would be stoutly resisted by much and probably most of the Scottish legal profession. 

But when it comes to choosing your political opponents, you could do a lot worse than Scots lawyers. For folk whose careers rely, at least to some extent, on persuasion, advocates and solicitors' attempts to resist these proposals have been singularly unfocussed and inept. The tone has been hysterical, the rhetoric cataclysmic. Legal commentary, which scorns the Cabinet Secretary's passionate rhetoric in favour of abolition, has hardly been bereft of its own vehemence. That you are the only jurisdiction in the world using corroboration is not necessarily a reason to be rid of it, but it does leave the argument that a system of criminal justice without corroboration is an abomination looking just a touch overheated. 

And too often, corroboration's defenders have allowed an impression of indifference to the real injustices to some categories of complainers caused by the corroboration rule to be cultivated.  In cooler moments, many and most Scots lawyers understand that the strictures of corroboration throw up difficult cases.  But to be seen coldly to wave aside the claims of victim of domestic abuse or sexual assault just makes you look like the Demon King, and confirm most people's worst suspicions about the grave-dust circulating through lawyers' veins. The reality may be more sympathetic and nuanced, but some public recognition of the problems of corroboration wouldn't go amiss.

On the other hand, the case for abolition has been troublingly garbled and inconsistent. Abolish corroboration to ensure access to justice for thousands of vulnerable people. Abolish corroboration, we're not really abolishing it anyway. Abolish corroboration to allow hundreds of extra complainers their day in court. Abolish corroboration, and these additional court days and lawyers and costs won't cost us an extra dime. The Cabinet Secretary's performance on BBC Sunday Politics Scotland a few weeks by was a marked improvement, but it was too little, too late.

Even before Kenny MacAskill's ridiculously intemperate and ill-judged summing up at stage 1 in Holyrood last month, key proponents of the legislation have done little to instil confidence that they understand what they're doing, or why. What's the point in abolishing the corroboration rule in law if prosecutors will continue to demand corroboration in fact, before putting cases before the courts? Bugger all, as far as I can discern. For Kenny to make this gibberish case for abolition in a flagship television interview explaining his proposal to the public is bad enough. Worse, the argument continues to enjoy a second life, aired by a number of no doubt well-intentioned but confused parliamentarians advocating law reform. (In the course of the recent debate, Linda Fabiani was just the latest MSP to make this singularly daft point).  None of this inspires a great deal of confidence.

There are, I'd argue, good reasons to favour abolishing corroboration and introducing additional and alternative safeguards. On the basis of Holyrood's narrow vote in favour of the general principles of the Criminal Justice (Scotland) Bill, it looks like this will happen, and a group under Lord Bonomy will consider what additional protections should be introduced. Corroboration will not be abolished until these are in place. Under Kenny's scheme, parliament will ditch corroboration, and only then consider what to replace it with. But if corroboration is a fundamental safeguard in the system, how can MSPs effectively consider the desirability of getting rid of it, without reference to concrete range of alternatives? Over at the Firm, Ideal Cynic describes this as a "bizarre way to legislate". Patrick Harvie made the point in the chamber, neatly:

"Even if I was to accept that the law should be changed if it is not fit for purpose, should we not know what we are changing it to before we change it?"

Others would make a slightly different, wider point. Why not let the review group consider all the options, rather than pre-empting their deliberations and excluding retaining corroboration from consideration? What if Lord Bonomy and his comrades believe keeping the rule is the best way forward for Scotland? It is beyond dispute that Kenny's plan to abolish corroboration then review alternatives is an odd one, but given the context, I think it is at least defensible. 

As has become eminently clear, the status of corroboration is controversial. It is common practice to give bodies conducting reviews clear terms of reference, settling some controversies beforehand, and directing their attention to particular issues and questions. We don't usually do so through primary legislation, but by settling the question of whether, in principle, we want to build our criminal justice on corroboration or not, we make Bonomy's task significantly more straightforward. 

If we don't exclude retaining corroboration from Bonomy's terms of reference, his task becomes that much more substantial, forced to consider a dizzying range of additional counterfactuals. Should corroboration be retained as is, partially retained, eliminated in some offences and not others, or abolished altogether? Might we adopt a more subjective system, allowing the judge to waive the corroboration requirement where, for example, the facts alleged by the Crown are not, of their nature, capable of being corroborated? Depending on which of these options we plump for, what sorts of new safeguards might it be appropriate to introduce? It seems likely that different safeguards would be thought appropriate, depending on which conclusion you reach with respect to corroboration.

By endorsing the principle of eliminating the corroboration rule from our criminal law, Bonomy and his colleagues are afforded a much clearer basis against which to work.  What would be the point, for example, of Kenny making a reference to the Bonomy group on the basis that he intended to abolish corroboration, only to find that he didn't have a parliamentary majority for the basic principle? It would be a merry waste of time and energy. Kenny's solution avoids this possibility. This an odd way to legislate, but not, I think, a wholly irrational or unwelcome one in view of the controversy.

That said, the Cabinet Secretary for Justice has a power of work to do to redeem himself from his persistent blunders and missteps in his management of this Bill.  Why was he so badly prepared to make the case for abolition? Why weren't the arguments and lines nailed? Why did his judgement desert him in the chamber, and faced with a divided and skeptical party, what on earth possessed him to reprise his "I'm tired of marching" speech? 

Kenny inappropriately introduced the spectre of the independence referendum into this debate. So let's talk about the referendum. At a critical time for the Scottish Government to project an appearance of competence and reliability, ready, steady and able to take up the reigns of sovereign authority, Kenny has embroiled himself and the party in a bitter dispute, manufacturing a small crisis and publicly alienating his colleagues. Too often, he has seemed half-prepared, and has comported himself in a manner that has done little to reassure even those who agree with him that the law should be reformed. All of this was avoidable. Whatever you think of the rights or wrongs of abolishing corroboration, this has been a regrettably inelegant, unedifying and damaging outing for the Cabinet Secretary for Justice, whose political instincts seem to have gone thoroughly off the boil.

4 March 2014

The Art of Controversy

Rammy. Barney. Tumult. Boorach. Stramash. Whatever your favourite term of abuse, it was doubtless applicable to last week's ugly exchange between Johann Lamont and Nicola Sturgeon on STV's Scotland Tonight. Who did it damage, and why? Is the failure to sustain an audible, respectful, coherent debate a symptom of Scotland's machine politics? Does it attest to a lack of faith in the interest of discussion, without the boxing-pundit format and commentary? The Big Debate, good or ill: our first topic on episode 41 of the For A' That podcast this week.  

The regulars - Michael Greenwell and yours truly - are joined by BBC journalist turned blogger Derek Bateman, Women for Independence's Carolyn Leckie and blogger William Duguid.  Having despatched with Nicola and Johann, we discuss the corporate interventions of the last week. Another damaging development for the Yes campaign, or an expression of the inevitable risks business face, independence or no? Might these threats and menaces be counter-productive for Better Together, as they try to promote a vision of the Union as a mutually-interested, caring family unit? Can an effective lovebomb be crammed with shrapnel and gunpowder?  

Carolyn also updated us on the Women For independence group's latest activities, including the forthcoming launch of a video and report on the findings of their "listening exercise".  Women remain a key challenging demographic for the Yes campaign. The Group are currently seeking crowdfunding to hire two campaign organisers, print leaflets, advertise - and facilitate meetings and discussions over the last seven months of the campaign.  Lastly, we took a look at the other immensely successful crowdfunding developments over the last seven days, and their curious magic. Sites, films, debates, campaigns, all netting funds to take forward projects and schemes to argue the case for a Yes vote.  But is there a risk that the resources of the independence-supporting community aren't going where they are needed most?

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 cover all of our podcasting cost last year from your generous donations. If you'd like to pop a penny in the pot to keep us on air, you can do so via Michael's site or using the donate button to your right here.

3 March 2014

Cochrane's Paradox

A recent entry from the Scottish Dictionary of National Philosophistry (2004) (OUP). 

First identified by the onyxo-unio-cardiolist Alan Cochrane in or around Auchtermuchty in 2007, Cochrane's Paradox remains one of the thorniest politico-logical puzzles of contemporary Scottish philosophy. 

Extending Erwin Schrödinger's famous thought experiment in quantum theory from the feline to the functionary, Cochrane sought to find a basis in reason for the claim that civil servants working for their democratically-elected governments could be both a scandal and a disgrace, and celebrated and proper, at the same time. Although Cochrane's primary focus was always theoretical, contributing to humanity's understandings of higher order concepts, this uncharacteristically political theorist of physics chose to express this paradox in terms of the constitutional controversies of his own day.  

 Just as a fluffy kitten in the fuzzy bloom of youth cannot be both lively and dead simultaneously, the richly face-furnitured philosophist struggled to reconcile the claim that the UK government's use of its bureaucrats' time, talents and authority to promote its constitutional preferences was simply splendid, while the perfidious Scottish Nationalist insurgency's use of the self-same civil service resources to make the case for independence amounted to a disgraceful abuse of power and a subversion of a key pillar of the state hinting at dark designs on the liberty of the subject. 

But how could both propositions be true simultaneously, the same practices being both right and proper when undertaken by civil servants under the superintendence of UK ministers and a scandal and an outrage when simultaneously engaged in by their Holyrood counterparts? Cochrane's paradox was formed.  Only fully worked out in his late writings, Cochrane's early work in the field anticipated the thought experiment which would make his name. 

In an early pamphlet, he considered the perils of a senior Scottish civil servant "going native" in service of his Nationalist masters.  A subsequent scholarly review, Cochrane poses the question more starkly: "have Scotland’s civil servants become an arm of the SNP?" Cochrane, whose prose style was strongly influenced by his early readings of Professor Heidegger's Sein und Zeit (1927) concluded in a celebrated passage that: 

"Civil servants are paid by you but in Scotland they work for a separatist government even though they’re members of the British Civil Service."

To date, no subsequent theorist has been able to resolve the basic logical tensions in Cochrane's position. Emotionally and intellectually exhausted by his many failed attempts to resolve these issues, Cochrane abandoned advanced political quantum thinking in 2014. Selling his Perthshire home, the onyxo-unio-cardiolist is understood to have invested in a supply of gunpowder, a veteran crew of rum-soaked ex-lobby correspondents and a small brigantine

Flying under the traditional Cochrane Maggie-Thatcher-spearing-a-heart-while-quaffing-champagne flag, the ship has been implicated in a recent series of raids on fishing villages and towns along the Banff and Buchan coast. Locals have returned to find their homes despoiled of copies of the Spectator and Royal Jubilee branded tea sets, large numbers of which now flood the London black market.

See also: Dr John Charity Spring pp. 138 - 9.