30 January 2014

How many ECHR cases did Britain lose last year?

A new year, a new round of unelected-euro-judges-waging-war-on-British-justice watch.  

The European Court of Human Rights has had a relatively quiet start to 2014 in the pages of the UK press.  Somewhere, I'm sure, a Tory MP is trauchling away at the idea that the Court is systematically subverting our domestic judicial and parliamentary processes - with the bad grace of doing so as the same time as having a piffling Luxembourg jurist as its president - but the daily hate agenda seems to have shifted back from Strasbourg to Brussels. An understandable shift of emphasis, you might well think, given the approaching elections to the European parliament.

Sooner or later, however, the Court will produce an opinion which offends the blue-rosetted tribes of the House of Commons, and the europhobic victim fantasies will be dusted off and trotted out. Today, the Court has published its annual account of its work over the last year. Buried at the bottom of this substantial report is a niggling little statistic which everybody who hopes to understand the Court's real impact on Britain should have at their fingertips.  

For our illustrious Lord Chancellor and Home Secretary, every passing decision of the Court is yet more evidence of the institution's overreaching desire to subvert British democracy. Whatever the merits of a particular decision, and whatever the demerits of the legal regime being challenged, you can rely on the justice ministers of the current government to denounce it in shrill terms. 

If you are already predisposed to believe the underlying claim - that Europe is robbing us of our freedom to be beastly to beastly people - every passing precedent may appear just another casualty of "Europe's war on British justice". Doesn't it feel as if the European Court is always finding the UK in violation? Wasn't there that article just the other week about some disagreeable sod using human rights arguments to force the Home Office to give every con a weekly bath in asses' milk? This, as Phil observes over at A Very Public Sociologist, is stupid empiricism. We have to take a look at the wider picture. And that picture blows these delusions to bits.

So how many cases did Britain lose last year? Thousands? Hundreds? The Court certainly had the opportunity, taking decisions on 1,652 applications submitted against the UK during 2013. And did the malevolent band of Maltese and Andorran judges, as expected, glory in Britain's discomfort, substituting their own preferences for parliament's again and again?  Er. No. Not really.

During 2013, the Court found that the UK had violated Convention rights in just eight of these cases. If this tiny clutch of judgments represents war on British justice, I'd love to know what an acceptable number of adverse findings might be. This is two fewer adverse judgments than last year, representing an overall rate of defeat before the Court for the government of just 0.48% during 2013.   

Take a moment to take that in, and keep it in your pocket the next time a Conservative minister or parliamentarian or Express reading pub bore tries to convince you that the Court's judges are systematically undermining British democracy.  In 2013, as in 2012, this is a pitiful victim fantasy or a smokescreen: crabbit, feeble and entirely unjustified self-pity.

29 January 2014

Gonzoing the referendum

Where is the Scottish independence debate happening? Who are its main characters? 

One version, arguably the dominant version, would point to the airwaves, Newsnicht and First Minister's Questions, interviewing politicians and canvassing a recurring band of greying (or long-grey) pundits, whose opinions we're all already perfectly familiar with. That's certainly one part of the conversation about independence, and an important part - but outside the studio, overlooked, in un-newsworthy places, more lively spirits are stirring.  

We should hear more about them. We can't leave the last word on the significance of this campaign to increasingly-jaded commentators, working the dismal miracle of making the referendum boring. In that spirit, in the lead up to the referendum, I wanted to write about the campaign's quotidian, quiet revolutions. The stuff you rarely find in the papers. The social life of the referendum, if you like. 

You can find the first of these constitutional field logs in the new edition of the Drouth magazine.  I kick off on a Gonzo journalistic note, taking a look at the independence generation, treading warily inside the National Collective Hipster's Den.  

22 January 2014

Verruca Gnomes

In Terry Pratchett's Hogfather, the disappearance of the Discworld's porcine equivalent of Father Christmas throws Hogwatchnight into disorder. Stray belief fizzes around the universe. A casual aside by the Arch-Chancellor of the Unseen University - glingleglingleglingle - and puff, the anthropomorphic representation of the Verruca gnome, his sack burgeoning, manifests in reality. The same procedure called up the Hair Loss Fairy, the elephant-schnozzled Eater of Socks and the Oh God of Hangovers. In our world, it isn't quite so easy for humanity to summon our ideas into actual existence, but language can and does exert a similar effect.   

The term "cybernat" has very recent origins. Coined by Lord George Foulkes, and first referenced in the Sunday Herald in 2008, I've written before about the popularisation of the term in Scottish political discourse.  A quick look on LexisNexis suggests that its usage is still rising. The Daily Mail devotes a frequently absurd article to the idea this morning.  According to Alan Roden, apparently "we don't want to be part of your neocon country where the poor get poorer and the rich richer" represents an "abusive attack". The mind boggles.

In the early years, usage was marked by its hesitancy and diversity. Was it to be "Cybernat" or "cyberNat"? Informality seems to have won out, and the capitals mostly droppedToday, the term is used thoughtlessly by most commentators, as if we all knew what it meant, and who it referred to. By talking so incessantly about cybernats, we're summoned them into a largely taken-for-granted existence. The cybernat is treated like Pratchett's Verruca gnome, sprung fully-formed from the mind of Lord George Foulkes.  But it is worth taking another look.

In its original Foulkesian sense, "cybernat" had a clearly negative connotation, denoting not just an independence-sympathetic soul's manifestation online, but striving to substantiate a class of folk whose activities and comments could be constructed as abusive and illegitimate.  This isn't a terrible peculiarity. You needn't be a linguist to know that we constantly traffic in laden terms without being entirely explicit about what we mean. Politics is a particularly fruitful domain for this sort of constructive vagueness in terms. "Social justice", "fairness." Etcetera, etcetera.

But the term cybernat performs a number of useful functions for its proponents. Firstly, it structures the ordinary abusive and critical demotic of the internet as a particularly pro-independence pathology. The innumerable tweets and comments online from across the UK, raging against various members of the coalition government in colourful and personal terms, suggest that "we're all in this together" in terms of the childlike pleasure of tweeting that a cabinet minister looks like a dyspeptic Vogon with a scone blocking his colostomy bag. 

Anyone who has ever had occasion to pop their phizog on telly should know that doing an Ed Balls, and searching the subsequent Twitter stream, is an expedient only for those prepared to experience disagreeable accounts of just about everything about you, from what you said, to how you said it, to how your hair happened to be styled that day. After my Newsnicht outing in 2012, I seem to recall that some friendly soul said that I represented everything that was wrong with Scottish nationalism. Its silken, suggestive edge was the killer touch. The same, it seems to me, is true of every country and every political system where passionate beliefs and passionate hatreds are held by folk with few inhibitions, low empathy for their opponents, and an iPad.   
But through the cybernat lens, we see things differently. The universality of the characters of the troll and the flamer are elided, in favour of the specific claim that online villainy is a particular Yes-inflected phenomenon. If you dismiss Alex Salmond a fat wank whose melon face you'd like a pulp with a two-by-four before drowning him in a barrel of tonic wine, you're at most a disreputable, isolated individual whose conduct tells us nothing about the party or campaign with which you are associated. 

If the cybernat describes a pro-Union columnist as a "Tory tool", by contrast, you're part of a disgraceful, organised and ultimately leadership-controlled campaign to silence those who disagree with your constitutional preferences. This isn't whataboutery. I have no interest whatever in developing a parallel whine about the "cyberbrit", whose infractions against decorum can be thrown back in a tu quoque. The simple fact is, the lay of the cybernat allows an identical catalogue of abuse to be interpreted in radically different ways, depending on whether its author favours independence or continuing union. 

It's a double-standard, and one with fairly explicit, and broader political purposes. The generalised figure of the "cybernat" is a way of hanging on – increasingly desperately – to the "pathologised" figure of the Scottish nationalist. If the mainstream SNP didn’t exist, the cybernat wouldn't have to be invented. The metaphors characteristically associated with the cybernat are significant. "The mask slips". "The sinister underbelly of Scottish nationalism, revealed".  "The darkness at the heart of the nationalist cause". 

Often implicit in all of this is the insulation: Look at these folk. They're really all slightly loopy, unpleasant head-bangers, no matter how reasonable and orderly Alex or Nicola contrive to appear on telly.  You can't trust a Nat. They're all itching to gulag you, somewhere in the foetid swamps of their imaginations. This kind of discourse has already had a profoundly distortive effects. Sing a few songs and barrack Nigel Farage in Edinburgh? Dark signs of authoritarian ethnic nationalism on the march. Clatter Nigel Farage over the head in Kent? Er. Gosh darn those hate-filled Anglophobic. Um. Kentish.  
None of which is to say that some of what folk are saying online isn't unpleasant, moronic - or actively counter-productive for the campaign they claim to support. Of course it is. But how we construct the illegitimacy and legitimacy of political speech is important. And I'm always suspicious of self-appointed arbiters of taste. Particularly those who, as recently as a few months ago, ran a front page against a political opponent, claiming that his dead dad "hated Britain".  Or perhaps exaggeration, scurrility and abuse is only objectionable when you undertake it on a freelance basis, with limited circulation. 

In the hands of some of its proponents, the idea of the cybernat seems increasingly to be deployed to represent perfectly reasonable but contrary and critical perspectives as beyond the pale. Today's Daily Mail piece is particularly revealing in this respect. The article is accompanied by a sidebar of shame, recounting particularly outrageous cybernatty responses to a recent article, critical of some aspect of the SNP's independence platform.  Amusingly or appallingly, depending on your viewpoint, it includes many perfectly respectable, critical responses to the article under the aegis of cybernat abuse. 

One lackwit called its author a "quisling", but according to Alan Roden, it is now an illegitimate scandal to compare the authors of articles you disagree with to Rob Brydon or to criticise the ideological direction of the UK government, and its attendant privatisations of public services.  There's much more colourful stuff out there. Just search for Alex Massie's name after yesterday's turgid BBC Question Time inspired independence debate. Yet the Mail pluck out these examples for special villification, and then complain that it is the amorphous crew of cybernats who are striving to stifle legitimate comment. If reasonable participation in the constituional debate is to be defined as excluding passionate points of view about the limits and vices of our current government, count me out too.

I have friends - good, smart people - who have stopped writing about Scottish politics because they grew tired of the endless negativity, the idiotic foul-mouthed denunciations and allegations. And female friends from across the world, who feel slowly bled dry by the barrage of misogyny awaiting their writing. I lament that. But legitimate criticism and pointed differences of opinion also tend to sting. It is a tried and tested debating strategy, not to answer the arguments actually advanced, but to strive to undermine them using other tools.  

Like Pratchett's accidental anthropomorphic personifications, the cybernat has been conjured into recent life by our imaginations. It is beyond question that the Scottish political debate online - like all political debates - will have it share of impolite, irreverent and sometimes downright ghastly participants. But like the Verruca gnome, this household god of the independence debate is smuggling iffy material in his sack. Handle this popular little fellow with care.

20 January 2014

Vote Green ... or UKIP gets it.

UKIP. Eurgh! Boo! Yuk. Icky. Want to stir soya milk into Nigel's decent, plain, old-fashioned British cornflakes? Vote GREEN.

That, in an organic spelt kernel, is the Scottish Greens' pitch for May's European election.  The sixth Scottish seat either goes to Maggie Chapman - diligent Edinburgh councillor, immigrant, and anti-nuke feminist - or some far-right goon who attributes rain-clouds to the cosmic machinations of a Romanian sodomite who recently deprived him of gainful employment. (In the interests of disclosure, I should say that I know Maggie of old and wish her well).  For those of us keen to keep Scotland a UKIP-free zone, this is an anxiety-provoking scenario. But is it a credible one? I'm not so sure.

Firstly, it's important to remind ourselves about how seats are allocated in European elections. One, there's a single national constituency and six seats going begging. Two, seats are allocated on the basis of a simple quota system.  Like the regional vote in Holyrood, each party nominates and ranks a list of candidates. On election night, returning officers tot up all of the votes cast into national totals. 

These are then divided by the number of seats the party has already won + 1, with the party with the highest remaining tally winning a candidate in that round.  In practice, that means that the party winning the highest level of support takes the first MEP, and their vote is divided first by two, and then by three if they take a second seat.  I put together the following chart last March, showing how all of this shook out in 2009:

As you can see, last time out, the Greens trailed significantly behind not only Labour but also the SNP and the Tories. Short version? They'd only take a seat if Scotland elected nine MEPs rather than six. UKIP were nowhere. But much has changed since 2009. Specifically, the Liberal Democrats entering government has done little to boost their electoral fortunes in Scotland. The party's support fell by over 8% in the constituencies in 2011, losing just over 6% of their regional vote. Their suffering did not abate in the local government election of 2012, during which just under half of their first preferences deserted them, leaving the Liberals with around six-and-a-half per cent of votes cast nationally. 

So things don't look good for George Lyon, whose political career looks destined to end in a second failure, having already been hoofed out of Holyrood in 2007. But is it really just the Greens and UKIP, hovering over his carcase? Given the continuing strength of the SNP, I fancy not. The source of the Greens' claims is a recent pan-UK YouGov poll on the European election, and in particular, its regional breakdown. Yes you've guessed it: the Scottish sample is tiny, a weighted sample of just 165 folk. And intuitively, its findings don't look quite right, seriously overegging Labour (and potentially UKIP) support and underselling the SNP. 

This is significant, in that in 2009, the scrap for the sixth seat was actually between Labour (for a second seat) and the SNP (for a third), with the Tories trailing in third. For the battle for the sixth seat only to be a UKIP vs Green scrap would be a substantial departure; a fact nicely demonstrated by doing precisely what the Greenies want us to do: taking the YouGov sub-sample seriously.  Let's assume the same level of turnout as 2009, and that the election broke down precisely as YouGov's polling predicts. Who would win the seats? And who'd be in the scrap for the sixth?

The slightly embarrassing answer is: not just the Greens and UKIP.  The really embarrassing answer is: not the Greens or UKIP at all. Here's how, by my reckoning, it'd break if the YouGov polling was right.  The victor in each round of the allocation is bracketed underneath.

You'll notice a number of things. Firstly, it would be a battle between UKIP and the SNP for the final seat, with both Labour then the Greens coming up behind.  Lesson: if either Labour or the SNP do stonkingly well, a third seat for either of them can't be ruled out, nor can it be assumed that they'll take these seats early in the allocation, putting them out of contention for the final seat. Labour took its second MEP in 2009 in the last round of the allocation. In this model, the SNP would do so. The idea of a UKIP vs Green battle may be a congenial story for campaigners to tell, but it doesn't reflect the more substantial challenge represented by the big squeeze which Labour and the SNP have put on smaller parties since their recovery after 2003.

But what if the SNP does a bit better, and Labour does a bit worse? For the Greens, there's a sweet spot where both Labour and the SNP do well enough to net two seats apiece early on in the allocation, but insufficiently well to keep either party in contention for a third. Vote shares in the upper-middle twenties should do it: a bit better than Labour did in 2009, and a bit worse than the SNP. Alongside the sturdy Tory MEP spot, this would afford those parties hovering around the 10.5% mark to get a reliable look in, and to kick the sap out of each other for the sixth place.

Anything better than this and the Greens are in bother. The latest Ipsos-MORI poll of Holyrood voting intentions (not an unproblematic cypher for the European poll in which both the Greens and UKIP might expect to do better) has the SNP on 36% and Labour on 34% respectively.  The YouGov European polling gives the parties a total of 61% of the vote. Let's fiddle with it a bit and say that Labour and the SNP gain the same total percentage of support in the European poll, but allocate 31% to the SNP and 30% to Labour to reflect the closer contest suggested by the fuller Ipsos sample.  What happens then?

Again, neither the Greens or UKIP get a look it, with the SNP taking a third seat, trailed by UKIP, then Labour (behind by just 1 vote), then the Greens. The lesson? If UKIP looks to be doing well enough even to approach 10% of the Scottish vote in the Spring, voting for an electorally fragile and inconsistent Green party which itself has never attracted 10% of the vote may not do the trick. 

In simple mathematical terms, electing a third Labour or SNP MEP requires more votes that getting Maggie over the line, certainly (since by this stage in the allocation, every vote for the parties would be divided by three).  It is far from clear, however, that it would be politically more difficult to drum up 60,000 votes for either of the main parties, than it would be to add 20,000 new supporters to the Scottish Green tally in the party's current state.  If disappointing Nigel is your sole aim in casting your European ballot, a vote for either Labour or the SNP may be a more reliable weapon of choice.

16 January 2014

Schrödinger's Victoria Sponge

We're not terrifically good at this European lark, are we? The SNP government's canny sense of strategy has seemed to desert it again and again in matters touching on the law of the European Union. For the weary nationalist consumer of the Scottish media, another round of negative headlines in the papers this week might suggest the outbreak of another baseless scare story about Scottish independence. But it isn't.

The idea that an independent Scotland would be able to continue charging English students fees for studying in Scottish universities is an unforced - and totally pointless - error. There may be an argument for it, but it is frustrating to see the Scottish Government's old bad habit of overegging legal arguments, transforming balanced contentions into definitive certainties, re-emerge so early in the referendum year.

Frustrating, not least, because it gives Unionists a wholly unnecessary free shot at our vitals, insidiously undermining the SNP's credibility yet again on European issues. Playing target-practice with your own toes may wile away the long winter evenings, but it isn't a constructive pastime for a government waging an uphill war to convince the Scottish people that they may be confident that independence is a credible project. As I observed yonks back, about the absence of law governing Scottish accession to the EU, uncertainty which cannot be eliminated, can't be avoided.  There's no point pretending that everything's crystal clear, when your opponents have a pail of mud to hand and a will to chuck it. And legally credible mud at that.

The basic position in European law is that you cannot discriminate against EU citizens on the grounds of their nationality, as University of Edinburgh law professor Niamh Nic Shuibhne has explained estimably clearly. There are some circumstances in which this general rule against discrimination may be disapplied, where the government is able to show objective justification for the discrimination. These depend on whether the discrimination is direct or indirect. Niamh, who knows a good deal more about the European Court of Justice's approach to these issues than I do, concludes that the Scottish Government may have a legal argument - but it is a shoogly one which they can have no confidence whatever that the Court will accept, given the tribunal's current case-law on non-discrimination in the educational field.

This should chime with our intuition, and the evidence of our own eyes. If it would be legally permissible under EU law for an independent Scotland to discriminate against EU students in this fashion, why do we currently allow Irish and Belgian and Austrian students to study here without paying an additional penny for their degrees? I'm at a loss as to why the rhetoric seems to have shifted us from a straightforward and credible position, exposing the government to yet another round of negative commentary, insidiously undermining confidence in its judgement and contributing another unwelcome strand to the theme that it doesn't know its business where the EU is concerned.  

Try something like this on for size: the principle of free access to higher eduction is of fundamental importance to us, as is full participation in the European Union and the citizenship rights it enshrines.  An SNP government will do everything in our power to preserve that social compact with students and parents, come what may, in an independent Scotland.  

Independence poses some new challenges, but they are not insurmountable challenges. For understandable reasons, the free universities of an independent Scotland could exert considerable attraction on English students who would face far steeper expenses to study south of the border. Under the current settlement, we are able to charge English students fees.  

Under European Union law, however, it is considerably more doubtful whether we could continue to do so after independence.  Our first priorities are to find mechanisms within the law of the European Union to do so, and objectively to justify treating English students differently. Scottish institutions of higher education are subject to real pressures and we believe that EU law should recognise that.  Our legal advisors suggest this may be possible, but cannot give cast-iron guarantees. 

If it does not prove possible to distinguish between different students in this way, the policy of free higher education will be maintained, and additional resources will be found to meet the additional cost, as they are found to cover the expense of French and Dutch and German students, taking advantage of Scotland's institutions of higher education at present. 

The downside? Another spending commitment for an independent Scotland. Better Together might grouse about that, but it is not a great story. The upside? This formulation poses no questions about the SNP leadership's competence and candour when it comes to EU law. Sure, it owns up to another uncertainty about independence, but it wouldn't have generated headlines like this.  It is clear and honest and principled.

All of that said, I'd be fascinated to hear how the underlying assumptions of the SNP's unionist critics are remotely reconcilable. Weeks by, we've heard palpable glee from Tory and Labour and Liberal politicians, and their constitutional fellow travellers, arguing that negotiated entry from within wouldn't work, and Scotland would be booted out of the European Union and its citizens' rights to free movement, extinguished. Or to use their preferred formulation, there could be "no guarantees" that an independent Scotland would be "allowed into" the EU. For this round of slagging, we're being asked to assume that Scotland would be admitted to the European Union in short order after independence. The volte face, and the chopping and changing basic assumptions, is made without blinking or blushing. 

The irony of course being, if Scotland was outside of the EU, then none of this would be a problem.  There would be no free movement of persons, and you could squeeze a pretty penny out of students arriving here from any European Union country, including rUK. Alternatively, if Scotland was inside the EU but England and her provinces were out, fees wouldn't be a problem either, as the English students would enjoy none of the rights of  EU citizens. The same goes for a situation where both Scotland and the rUK sat outside of the European Union. This whole argument is predicated on the assumption that both Scotland and rUK would remain EU states. There are no "guarantees" about which of these four options will obtain, I suppose, but they can't all be true simultaneously. 

Wanting to have your cake and not have your cake and eat it and not eat it? The paradox of Schrödinger's Victoria sponge.  Or should that be Schrödinger's petite madeleine, sachertorte or panforte?

14 January 2014

Jury Duty

"I've been at the sheriff, but no up here before," a low voice behind me said. The South Court of the High Court of Justiciary in Glasgow feels much taller inside than it is broad. The decoration is tasteful, if somewhat faux Georgian in mode: columns and palladian squareness, whiteness, wood, and pale blue.  

The witness box and the advocate's questioning post beside the jury have something of the pulpit about them, though I dare say they see little in the way of preaching.  A bedside digital clock winks out from the judge's bench. Behind him sits the tinny-looking mace, representing the court's royal sanction. Two lions snarl from the wall above him. If they only squint down into the well of the court, this vertical illusion of classical simplicity and order dissolves into jurisprudential clutter: abandoned wigs and splayed lever-arch files, paper piles and jiffy-bagged and labelled crown productions, cast off black robes and the gangling connective tissue of wires and plugs. 

Buzzing around this colossal wreck, our regulars. While the prospective jurors sit, bored and wan in the public gallery, barely daring to move a muscle, and speaking if they speak at all in hushed tones, the macer gossips with the clerk in his crooked white-bow tie. A blazered court official ducks in and out. The advocates saunter around, in and out of the courtroom, idly footering with their files or their wigs, cracking jokes and taking the occasional if discreet squint out across the pooled jurymen and women. 

(It's been a while since I last set foot in a common law court.  Let me just observe from this recent outing: the practice of having advocates and judges wear wigs is patently absurd.  The two bare-headed solicitor-advocates representing the third accused in their gowns looked perfectly respectable. I'm sure their ability to pose pertinent questions was not impaired. Quite how dolling up as a cut-price Marie-Antoinette does anything for the dignity of proceedings is beyond me.  

Indeed, I'm told that primary impact of horsehair on scalp is that it encourages baldness. One wag on twitter suggested that I may not have made the ballot on account of my current, wigly, and rather silly twitter profile. It'd have been interesting to hear the immaculately peruked Lord Kinclaven explain why such headwear would offend the dignity of the court, while the bobbing horsehair of its well assists the proper administration of justice. But I digress.)

The lawyers are not loud in the traditional audible sense, but they comport themselves noisily - as assured folk do in their element. Whatever strange quietening discipline the court exerts on the jurors cited to attend, it doesn't hold for the circle of eight advocates. The whole morning has been characterised by its scrupulously polite assertions of quiet authority over the fifty or so folk, now nervously awaiting the ballot. Like many things we take for granted, jury service is a remarkable exercise in social power.  The simple authority of a letter commands our attendance here and now, and the majority comply.  

Many and most will never have set foot near the High Court before. Palpable nervousness and a hesitancy clings to the people approaching its threshold.  A few seemed to waver outside, like the foreign tourist repeatedly checking that he is on the right platform to catch the train to his destination, despite the fact that its name blazes clearly on the sign in the terminal above him. Like that tourist, many clutch their peach jury citation forms for grim death, like a sort of talisman, irrationally feart they are going to misplace the paper in their last few steps to the door, and feel the full force of the law. Throughout the morning, I am reminded again and again of the peculiar stupidity which seems to take over when you are abroad. It's nervousness, I think, havers born of uncertainty about how it is appropriate to behave and the inchoate fear you'll get it wrong, and slip into calamity.

Having been scanned, and stamped, and ordered from pillar to post, we pool in another tall-ceiling room, rather like a doctor's surgery, but without the convenience of out-of-date glossy magazines with advice on how to lose weight, decorate your home, or please your man. Despite tending by disposition towards earliness, the room is almost full by the time I arrive. The social temperature inside is remarkable chilly, as one might expect: fifty-odd strangers, in a strange place, hardly knowing how to behave. It is also strikingly tense and immobile. A few old hands project an attitude of bored assurance. A wee wifey obsessively turns through the Court's guide to jury duty. Others focus on a novel, or a newspaper. Nobody speaks. We wait, listless and clueless about what is really being transacted elsewhere in the building, or why. When the blazered official appears to hustle us into the court room, it comes as something of a relief. 

"Should we sit down?" a worried looking older lady whispers under her breath. "I guess so", I say, as the public gallery fills. We are met by the informal scene I describe above. The Canadian social theorist, Erving Goffman, used the metaphor of the theatre to help analyse social interactions, in particular the idea of fronstage and backstage behaviour. Curiously, as a prospective juror, you're afforded at least a limited insight into the backstage life of the court room which, with the appearance of the judge, is suddenly transformed into the main stage, in full public view.  Costumes are donned, the informality disappears, and the official roles of participants assert themselves.

The effect reminded me of the Citizens' Theatre's recent staging of Crime and Punishment (which I reviewed here). The curtain was already raised as the audience filed into the stalls. The actors struck no theatrical diorama. We do not first encounter them in character. Instead the ensemble limbered up against the gaunt, bare stage, checked their props, chatted - and at the appointed moment, became Raskolnikov, Marmeladova and so on.  The effect in the High Court yesterday felt similar. 

After a homily from the court clerk, who affably but ineffectively attempted to evaporate some of our anxiety, and the materialisation of the judge on the bench and the accused in the dock, to the ballot.  Where would fate's fickle finger point? Not, as you might have guessed from this blog, at me: nobody's fate lies, even slightly, in my hands.  The fifteen other souls having been empanelled by lot - the indictment against the accused is read - and the court adjourns briefly, to allow the jurors to divest themselves of their things backstage. Those of us which remained still could not leave. If it transpired that one of the selected jurors knew one of the accused or the significant witnesses in the indictment, one of us might still be snatched from obscurity to play our part in the process. In the event, nothing of this sort proved necessary and having been given the judicial nod, we were released.

All of this is done solicitously, of course. The judge and clerk thank us for our participation, and our patience in quietly enduring a process that takes the best part of two hours. But the underlying and explicit assumption of authority over you, to which you submit - you are not yet discharged, do not move - bears it own curious frisson. Inexplicitness marks many and perhaps most of the ways in which social power and discipline is exercised upon us most of the time. Rationally, you know that the judge isn't going to have you transported to Australia for a misdemeanour or a misunderstanding. But the prospective juror's proximity to this unfamiliar dread power, which assert that you are part of its system and unambiguously exercises its authority of govern your conduct, is a remarkable, straightening experience.

The Contempt of Court Act means that social researchers cannot legally do much in the way of jury research. Most people's experiences - evaporate - unrecorded.  But even for those who are not called upon to decide on the guilt or innocence of their peers, the experience of being cited and traipsing through the court processes is an original and strange and intimidating one - a brief but challenging moment of contact with our judicial institutions which, in ordinary life, few of us have cause to interact with.

7 January 2014

Corroboration: a wicker shield against miscarriages of justice

News this morning that two ex-Lords President of the Court of Session, Hamilton and Cullen, oppose abolishing corroboration. Both former judges emphasised that the doctrine has been part of Scots law "for centuries as a safeguard against wrongful conviction".

It is a line - perhaps the line - most regularly invoked by corroboration's defenders, in their opposition to Kenny's BillNobody should be convicted on the evidence of one person, advocates thunder. Requiring a second source of evidence holds witnesses to account, sparing the innocent from falling prey to credible but fraudulent court testimony. 

Advocates of abolishing corroboration, on the other hand, tend to have little to say about the position of accused persons. Their main focus are complainers - often described as victims - whose complaints are never heard by courts, because the requirement of evidence from two sources means that some aspect of the charge is insufficiently corroborated. Can it be right that serious criminal offences with profound effects on the well-being of citizens may be committed with impunity?

Superficially, these are both compelling lines of argument. Who wants the innocent to be convicted? Who wants the guilty to walk free? So should we abolish corroboration or not? Regular readers of the blog will know I have swithered on this one. I thought I should explain why - and hopefully the explanation might help others to make up their minds where they lie.  The problem is that both proponents of abolition and retention make important points, and speak to important values. 

Let's start with the easy admissions. One: corroboration represents a safeguard for accused persons. In some cases, a very effective safeguard, in that it excludes their conduct from any criminal liability. What's more, it preserves us from the dangers of convicting people solely on the basis of false confessions and means that a scheming witness cannot jail you simply on their own word.  

Two: from complainers' perspective, corroboration is a very blunt instrument. Just one example: a woman regularly beaten up by her ex-spouse falls victim to his jealous aggression yet again when he appears at her flat. When questioned, he denies being there. There is no other evidence connecting him to the scene. Although reduced physically to welts and bruises, the identify of her attacker is uncorroborated, however well she might know his face, and the case is dropped. Even for corroboration's greatest defenders, this is a problematic outcome.

For me, the key question on abolishing corroboration is, does retention or abolition satisfy a cost-benefit analysis, taking into account the interests both of complainers and accused persons? It is generally recognised that the rule represents a significant barrier to bringing some kinds of cases to court.  But is corroboration really a significant safeguard from the accused's perspective? Does it really protect us from miscarriages of justice, and the lies of a beguiling but false witness? If it is and it does, that might make one more skeptical about eliminating the rule from our criminal justice system. If, by contrast, corroboration does not really do these things, and represents only a limited safeguard and a substantial barrier to justice, its abolition might begin to look more attractive.

My main problem with the defence of corroboration that is being offered by Hamilton, Cullen and their colleagues in the legal world is that it relies on a - to my mind inflated - understanding of what the corroboration rule of today actually requires. We know that corroboration does not require the Crown to produce "two witnesses" implicating the accused. We know that the rule does not require two sources of evidence substantiating "all claims against the accused", but only the essential facts which are that (i) the criminal offence was committed and (ii) that it was the accused who committed it.  So what is necessary? 

One of the most important but overlooked features of the contemporary doctrine of corroboration is that it does not require that corroborating evidence actually points decisively to the guilt of the accused.  Evidence from secondary sources, equally consistent with the Crown's charge, or the accused's version of events, can corroborate the direct evidence of witnesses (Fox v. H M Advocate). As usual, all of this is bound up in alienating legal complexities, and its significance may not immediately be apparent, so let's illustrate this with an example.

Thomas, Kristian and Mark are acquaintances who live in a sparsely-populated, rural part of Scotland. Mark is found dead, shot, his body abandoned where he was killed, on a heather heath under the sky.  Thomas approaches the police, telling them that he saw Mark and Kristian having an argument that morning, and observed the latter gun the former down. On investigating, Kristian denies killing Mark, claiming that he was nowhere near the field in question that morning, but was instead out rough-shooting in another part of the neighbourhood.  

Neither victim nor alleged attacker bear traces of the other man's DNA about their person.  There is no evidence of past animus or threats being transacted between the two.  A search of Kristian's house yields up no gun matching the bullet which inflicted Mark's injuries, and no evidence that he recently acquired and may have disposed of such a weapon. Kristian's muddy walking boots bear surface traces of soil of the same composition as the heath where the body was found - but the area of countryside where he claims he was walking is of the same composition. On account of the dense heather underfoot, no prints matching Kristian's tread could be found anywhere near the body. While forensic evidence of gunshot residue is found on Kristian, he explains that this derives from his hunting expedition, not from shooting Mark.

This looks like a formally corroborated case. Our starting point is Thomas' witness statement, confirming the essential facts that (i) he saw the accused at the locus (ii) killing the dead man. But what about the corroboration? The muddy boot is capable of putting the accused at the scene, but it is also consistent with his not implausible innocent explanation of being elsewhere in the territory. The gunshot residue - which as I understand it, at this time cannot be matched to a particular firearm - presents evidence consistent with the idea that Kristian shot Mark, but equally consistent with the claim that he took a pop at a passing grouse on the moor as he claims. 

But for evidence equally consistent with Kristian's innocence, the case comes down entirely to one man's word.  Once the requirements of corroboration are satisfied, it's all a matter for the jury. In our hypothetical case, everything would seem to turn on whether or not Thomas is regarded as a credible and reliable witness on whose word to convict Kristian beyond reasonable doubt. 

Because corroboration does not require the corroborating evidence to point decisively towards the guilt of the accused, or require it to be more consistent with guilt than innocence, cases may already rely to a significant extent on the testimony of one - potentially credible-seeming and dishonest - witness. It may be that scheming Thomas knew Kristian's habits, and bumped off Mark himself.  The idea, regularly invoked by its defenders, that the abolition of corroboration introduces this risk into the system radically overstates the extent to which corroboration really acts as a safeguard against it. 

Yes, the rule excludes cases from court where there is only one witness. Where there is one witness plus circumstantial evidence capable of innocent or incriminatory interpretation, however, the dissembling witness is given ample opportunity by the corroboration rule to lie through their teeth in the witness box, in an attempt to put the accused away. 

Short version: convictions can already effectively rely, in the current system, on the evidence of a single witness. This shouldn't be surprising. Corroboration is a quantitative test, not a qualitative one. It doesn't generally enquire into the quality of the supporting evidence: concerned primarily with counting the number of sources. In these circumstances, the rule provides at most a wicker shield against miscarriages of justice. 

All of which leads me to the conclusion that the advantages of the corroboration rule have been wildly overstated by the doctrine's defenders. Yes, it forms a barrier against a very simple kind of injustice, but as shields go, its material is pitted and cracked, strained and broken by a century's worth of judicial interpretation.  It's nice rhetoric for Lord Cullen to appeal to the centuries over which corroboration has served Scotland.  The reality, however, is that the current corroboration rule little resembles the classical formulation of two witnesses speaking directly to the guilt of the accused.  It's contemporary defenders cannot credibly appeal to such antiquities, in defence of its current, compromised form.

If the modern conception of corroboration represents only a limited safeguard for accused people, and a substantial barrier systematically preventing cases of domestic and sexual assault from reaching court, I struggle to see how retaining it strikes the right balance.  The rule is very effective at excluding some kinds of offences and some kind of offenders from court. This might be justified if it served a significant, competing purpose offering a substantial protection for accused people from wrongful conviction. But it doesn't. 

Important outstanding issues remain.  Convictions on the basis of confession evidence alone remain problematic.  What harm could there be, in including a provision in the Bill to the effect that confession evidence alone is insufficient in law to convict an accused person? I also find the Scottish Human Rights Commission's idea of giving judges a limited discretion to refuse to put concluded prosecution cases to juries for decision a compelling one.  Why wait till after conviction and appeal, to determine that "no reasonable jury" could convict an accused person on the basis of the evidence led? 

But corroboration? It's a battle-scarred old shield, but despite the ineptness and confusion of many advocating its abolition, including the Cabinet Secretary, I'm not convinced that it retains even half the virtues attributed to it, in its current shape. A half-century of judicial skirmishes in the Court of Appeal have chipped away its veneer, and splintered its substance. It's time, I think, to hang the old girl up for good.

5 January 2014

Black & White

George Rosie has an article over at Bella Caledonia, on the "ties that bind" Holyrood. Rosie has the reservations of Schedule 5 of the Scotland Act in his sights, which enumerates all of the topics over which Westminster retains exclusive legal authority. He argues that:

"What I find odd about all this is that while Schedule Five of the Scotland Act of 1998 act has given Holyrood plenty of reasons to fret, grumble, complain and even rebel, very little of that has taken place over the past decade or so. It seems that the unionist parties who have ruled the Holyrood roost for most of the past fifteen years or so have been content to accept the restraints put on them by Westminster. The ties that bind have also been the rags that gag."

Its tone troubles me. For the Scottish nationalist, trudging slowly towards full autonomy, more powers for Holyrood is an axiomatic good. But the same is not necessarily true for the federalist or devolutionist, planning for a United Kingdom. Her key question is not - will this settlement leave the Scottish Parliament with the greatest authority possible? - but are legislative powers situated at the best level across the union?

Rosie consistently manages to put the worst construction possible on any retention of power at Westminster. Keeping responsibility for regulating health professionals? Ludicrous. Supporting judicial independence by paying salaries out of Britain's Consolidated Fund? Contempt for the Scottish Parliament. Harmonising corporate law, intellectual property and consumer protection regimes? Baffling.

The refusal to devolve powers is almost invariably taken as a slight on the wisdom of the Scottish people or a venal political stitch-up. Certainly, Some of the reservations of the Scotland Act are politically motivated. But working out how legislative power ought be distributed in federal and confederal systems is complicated, involving difficult decisions between competing values. 

We needn't look far for examples. Take the distribution of legislative power set down in the Canadian Constitution Acts (and let's take no sides in Quebec's internecine troubles with Ottowa). Unlike the Scotland Act, the Canadian enactment enumerates powers reserved exclusively to the provincial governments.  The limits of federal legislative power are enshrined in section 8 of the first Article of the Constitution of the United States, though have been embroidered by free-wheeling judicial analysis of the commerce clause .  The scope of these federal powers have been a continuous point of controversy in American law and politics.
Rather than seeing these issues through the Holyrood vs Westminster lens, let's think of it in terms of the framing of an independent Scotland's constitution after a Yes vote.  It is easy to see how the politics of national equality can vie with the demands of greater local democracy. Take the issue of welfare entitlements. Should Scotland have a nation-wide rate of unemployment benefit?

For many of you, the answer to this question will seem obvious: of course we should. Delivering basic social security is a key function of the social democratic state. It shouldn't matter whether you are jobless in Inverary or jobless in Cowdenbeath, unemployed in a wealthier area, or looking for work in a poorer one, urban or rural or in-between: we all have a shared, collective interest in securing a decent standard of living for all citizens, wherever they live. Social security serves a national redistributive function. If you find these arguments compelling, you're in good company: they were at the heart of the Calman Commission's decision not to recommend devolving additional powers over taxation and welfare control to Holyrood. 

On the other hand, what about local democracy? If Glasgow wants to adopt and pay for a more generous welfare scheme, why should centralising power in Edinburgh prevent them? If the Tory-Liberal coalition in Dumfries and Galloway want to cut back on housing benefit, oughtn't that to be the prerogative of its residents?  

Alternatively, rather than either of these extremes, we might consider more nuanced models of co-decision, allowing a provision of a national base rate, which local authorities would be empowered to vary within bands, determining the precise rate to be paid to those looking for work in Argyll and in Fife respectively, paying for the difference out of their own budgets. 

I'm not arguing that if you favour transferring authority for these matters from Westminster to Holyrood, you must favour redistributing power from Holyrood to local authorities. Pertinent differences distinguish the two regimes. But it is complicated, not reducible to devolution of power Good, reservation of power Bad.  My big problem with Rosie's Bella piece in the extent to which it elides these credible arguments about how legislative authority should be distributed in a wider union - whether that union is the UK, or an independent Scotland.

These aren't nice academic points of political theory. 2013 gave us a good example of these tensions and competing interests. During 2012, the Scottish Government let Lord Justice Leveson lead the investigation into press reform across the UK  - suddenly rediscovered its authority over press regulation after his report was published - and hastily dropped the idea of a distinct Scottish regulator after Lord McCluskey produced absurdly reactionary proposals. 

Indeed every "Sewell motion" in Holyrood, now called "legislative consent motions", recognise that sometimes, it is useful for Westminster to legislate on devolved matters, securing uniformity of regulation across the UK.  This installation of an SNP government has not changed that.  In the last two sessions, Holyrood has passed fifty-six of these motions. In an independent Scotland, proposing to retain the same currency and similar levels of market integration with the rest of the United Kingdom, we can expect similar arguments about the harmonisation of our legal regimes to be made.  Scottish consumers buying goods from English merchants online and vice versa? That underlines the importance of similar consumer protection regimes. And so on, and so on.
Rosie is right that ignorance of the Scotland Act's reservations of power is politically problematic. In my experience, MSPs frequently want or image they hold power over topics which are reserved, and behave as if some devolved powers are out of their control, taking their cues from London.  The first is a frustration, the second means opportunities to make the most of Holyrood's existing powers are missed.  

But knotty questions about how the legislative power should be distributed in a wider union are not unique to the UK. They're incorrigible features of any country, with multiple layers and concurrent institutions of government. Like Rosie, I favour Scottish independence, but I worry that his vision is too Manichean, making too little effort to understand and make intelligible the alternative point of view. 

Black and white thinking: the unbroken fever of contemporary Scottish politics.

3 January 2014

2015: An Ugly Stramash

The morning of the 19th of September 2014.  A slate sky, rain falling. In London, a whey-faced David Cameron emerges from Downing Street, shielded by trembling flunkies, black umbrellas buffeted by the autumn weather.  A shock of camera flashes accompany a chorus of cries from the damp knot of the press: "You've lost the United Kingdom, Prime Minister. Will you resign?" 

Elsewhere in the imperial capital, a red tie unravelled about his neck, Ed Miliband scores wearily through the north-most corner of his 2015 map of general election battlegrounds and constituencies. Nick Clegg and Nigel Farage snore soundly on through.  

For some of you, convinced already that the Yes campaign is stuffed, this is an impossible future.  Others may regard it as unlikely. But for the sake of January fun, let's treat it as a serious possibility. Say, by a slim or healthier margin, Scotland endorses independence.  Much has and will be written about how this affects Scotland. Less attention has been paid to how such an outcome will impact on the short-term politics of what is left of the United Kingdom.

Despite their endless appetite court-politics and ferment surrounding arguments and positioning for 2015, few metropolitan commentators have applied their minds to this question, convinced that a No vote is inevitable. Unless they buck up their ideas over the next nine months, and try a little counter-factual thinking, they may be in for a nasty, if entertaining shock.

So Salmond wins out. Negotiations for independence begin. And within a scanty few months, we're in May, and the 2015 general election campaign. Do Scottish constituencies still send MPs to Westminster? In all likelihood.  Firstly, some reasons of principle. During the transition from 2014 to 2016, Scotland will retain an interest in a number of matters reserved to Westminster.  The democratic principle demands some sort of a say in that. This problem might be largely answered by devolving further powers to Holyrood over various matters currently reserved to Westminster: welfare say, and taxation.  

But here we encounter a couple of practical snags. If the Westminster government refuse to engage in any serious pre-referendum negotiations, there will be no time - governmental or parliamentary - to devolve any powers between October 2014 and May 2015, or for that matter, to rejig Westminster's electoral map to exclude Scottish constituencies from the general election before the vote.  The smart money says that the election goes ahead as planned. Instead of trying to resolve the tensions it will cause using legal and institutional means, muddling through in a classically British style. At least until after 2015 when we might reasonably expect Westminster to adopt reforms to exclude Scottish members from the Commons, on Independence Day.

So the election goes ahead. But the Scots, being curious, fickle sorts, follow the same parliamentary tactics they pursued in 2010: the first past the post system gives Labour its accustomed landslide. Michael Settle wonders if the public might not give the SNP a boost. But let's say that old habits die hard, and the ballot boxes come out red. And across the rest of the United Kingdom? That is a rather trickier one to call. So let's not, and consider each of the likely outcomes in turn.  

This has the recipe for political disaster, however you slice it. Let's start with the easiest to justify: a Tory majority or a re-elected Liberal-Tory coalition, enjoying majority support in England and Wales. If the results of the 2011 Holyrood election is anything to go by, the 2015 general election is unlikely to be kind to Scottish Liberal Democrats. The party currently holds eleven seats north of the border, clustered around the Highlands and Islands and Aberdeenshire, with pockets of support in the borders, well-heeled bits of Edinburgh and Fife. 

Assuming that hostility to the party does not significantly abate by next year, Tory and Liberal representation might match the number of Scottish pandas, with Orkney and Shetland's Alistair Carmichael joining David Mundell in the enclosure. If 2015 generates a Tory or Tory-Liberal majority, it is likely to do so outside of Scotland. The elimination of Scottish representation some time in 2016 is not likely to impact on the perceived legitimacy of that government.

The election of any permutation of Labour government - minority, coalition or majority - poses far more significant problems of legitimacy. Despite the mythology to the contrary, we know that Labour has not relied on Scotland for any of its recent general election victories (1997, 2001, 2005). But the worst case scenario in 2015 is (a) the election of a Labour majority with Scottish MPs which evaporates without those MPs. It is inconceivable that MPs representing Scottish constituencies could serve out their full term in the UK parliament, influencing English policy, and sustaining Ed Miliband's premiership. 

Say, for the sake of argument, that the UK elects a Labour majority with Scotland, but a Tory or a narrow Tory-Liberal majority without them.  If the Labour majority installs Ed, it can expect to lose its mandate some time in 2016, and to find its legitimacy constantly questioned in the media, as it relies on its Scottish MPs to impose policies affecting only England and Wales: the West Lothian question on acid. This is likely to be particularly problematic, if Labour stands on a prospectus, as it is likely to, focussing on public services in England and Wales. 

If, by contrast, the Labour party exercises a self-denying ordinance in recognition of the referendum result, David Cameron would find himself presiding over a minority government in the House of Commons.  Would - could - the majority Labour opposition resist the temptation to use its ultra montane , defeated and embittered Scottish unionist majority to interfere? In this scenario, the only credible option is another general election as early as 2016, to elect the government of what remains of the United Kingdom, an abrupt change of government with the disappearance of Scottish members without an election, or perhaps an unstable minority administration. 

The consequences of independence for the centre of British politics has generally not troubled the imaginations of metropolitan commentators. It should.  Even on their preferred terrain of short term political tactics, a Yes vote followed by the General Election is likely to transform the political calculus of both Labour, Liberal and Conservative parties.  

The short-to-medium term instability which may result also has significant implications for the negotiations to unpick Scotland from the United Kingdom. There is a significant possibility that any Labour-led UK government involved in negotiations enjoys questionable authority, and a risk of governmental change at the tail end of the process in 2016. This may be less problematic if there is a degree of unanimity between UK Labour and the Tories on the approach to be taken in the negotiations.  It is a recipe for difficulty if the favoured approach of the main parties diverge.  

At this stage, I don't think one can predict with any certainty which party - Labour or Tory - is liable to be more sympathetic negotiators for an independent Scotland to deal with. Nor, I think, is it obvious whether any UK governmental instability is likely to be a boon or a bother.  On the one hand, political disorganisation seems likely to favour the more organised delegation, with clearer aims and goals. On the other, time is of the essence and the distraction of one party to the negotiations is not likely to increase the celerity with which agreements may be reached - a problem for the First Minister.  

From the viewpoint of of stability, the best outcome for independence supporters in 2015 is the re-election of a Tory or Tory-Liberal majority coalition or a roaring performance by Ed's band, securing a majority from England and Wales without their Scots comrades. But Fortune (and the electoral system) rarely smiles so kindly on us.  We'd better all be ready for an ugly stramash.