DOES A RISK OF AN EXPLOSION ENGAGE ARTICLE 8?

Hardy & Maile v. United Kingdom, ECtHR, 14 February 2012 read judgment

This Strasbourg decision is the end of a long saga. Our applicants Hardy and Maile lived near proposed Liquified Natural Gas terminals at Milford Haven. In 2003 and 2004, an oil refiner obtained various consents to enable the LNG to be imported, and the applicants challenged them in the domestic courts. But the image, and the identity of its participants, will tell you that the LNG started to arrive. But Alison Hardy and Rodney Maile were not easily deflected, and after a long battle through the domestic courts ended up in the Strasbourg Court.

As we will see, they lost in their challenge to the grant of these consents, but not before establishing an interesting point about the reach of Article 8.

Put simply, the challenges were to the adequacy of the risk assessment carried out in respect of a potential escape of LNG from a ship either in or near the port arising as a result of a collision. The challenges had been defeated domestically, principally on the grounds that they were brought well after the expiry of the 3 month time limit applicable to judicial review. In the process, an unfortunate error had been made by the Health and Safety Executive asserting that it had carried out an assessment of the risks arising out of the presence of LNG, when sailing or berthed, only then to withdraw that assertion after the case had initially gone to the Court of Appeal and that assertion had been referred to by the judges. Attempts by the applicants to re-open the case were in due course dismissed, principally on the grounds that this mistake of fact by the HSE, and hence by the Court, was not part of the essential reasoning of the court. Hence, though the courts were not disposed to rate the merits of the applicants’ underlying claim highly, there was no ultimate adjudication on whether the risks had or had not been adequately assessed.

Now to Strasbourg. The general approach to Article 8 environmental claims was set out by the Court in fairly boilerplate terms,

217.  The Court reiterates that in a case involving decisions affecting environmental issues there are two aspects to the inquiry which it may carry out. First, the Court may assess the substantive merits of the national authorities’ decision to ensure that it is compatible with Article 8. Second, it may scrutinise the decision-making process to ensure that due weight has been accorded to the interests of the individual……..

218.  It is for the national authorities to make the initial assessment of the “necessity” for an interference. They are in principle better placed than an international court to assess the requirements relating to the transport and processing of LNG in a particular local context and to determine the most appropriate environmental policies and individual measures while taking into account the needs of the local community. The Court has therefore repeatedly stated that in cases raising environmental issues the State must be allowed a wide margin of appreciation.

- though the Court introduced a new phrase in [198] “It is primordial that the machinery of protection established by the Convention is subsidiary…” – terminology explored in a related post of today.

However, a threshold point was taken by the UK. It said that because no severe environmental pollution had actually occurred, and because the degree of probability of marine risks (i.e. collision and explosion) occurring was extremely small, Article 8 was not applicable. It founded on an inadmissibility decision, Asselbourg in which the Court had said:

In the instant case, the Court considers that the mere mention of the pollution risks inherent in the production of steel from scrap iron is not enough to justify the applicants’ assertion that they are the victims of a violation of the Convention. They must be able to assert, arguably and in a detailed manner, that for lack of adequate precautions taken by the authorities the degree of probability of the occurrence of damage is such that it can be considered to constitute a violation, on condition that the consequences of the act complained of are not too remote (see, mutatis mutandis, the Soering v. the United Kingdom judgment of 7 July 1989….). In the Court’s opinion, it is not evident from the file that the conditions of operation imposed by the Luxembourg authorities and in particular the norms dealing with the discharge of air-polluting wastes were so inadequate as to constitute a serious infringement of the principle of precaution.

The applicants sought to distinguish this, saying that Asselbourg was a continuing nuisance case where the evidence advanced was not convincing. The Court did not address one way or another the Asselbourg analysis. But it agreed with the Applicants that Article 8 was applicable. It acknowledged that there was no suggestion that the normal operation of the LNG terminals posed any risk to the applicants or to the environment. Having noted that the terminals needed environmental assessment, and the carrying out of a COMAH report (see at recent post here on this) was also required due to the potential risks of fire and explosion, the Court simply stated

192.  In the circumstances, the Court is satisfied that the potential risks posed by the LNG terminals were such as to establish a sufficiently close link with the applicants’ private lives and homes for the purposes of Article 8. Article 8 is accordingly applicable.

So the Court was deciding the applicability of Article 8 in the light of the general subject-matter (fire, explosion) rather than via some sort of threshold investigation of any claim that the terminals had not been adequately assessed and/or that the risk were higher than had been assessed.

As I have said, the Article 8 claim did not avail the applicants in the end. It had 2 limbs; they complained about the adequacy of the assessment, and about the lack of information provided to them about the risks posed by the terminals. The first limb involved a review of the assessment carried out, both in substantive and procedural decision-making terms. Yes, there must be appropriate investigations and studies ([220]), but, at [231]

The Court reiterates that the protection afforded by Article 8 in this area does not mean that decisions can only be taken if comprehensive and measurable data are available in relation to each and every aspect of the matter to be decided. In the present case, there was a coherent and comprehensive legislative and regulatory framework governing the activities in question. It is clear that extensive reports and studies were carried out in respect of the proposed LNG terminals, by both HSE and MHPA, in cooperation with the developers. The planning and hazardous substances authorities as well as the domestic courts were satisfied with the advice provided by the relevant authorities. In the circumstances, it does not appear to the Court that there has been any manifest error of appreciation by the national authorities in striking a fair balance between the competing interests in the case…

So investigations and studies must be “appropriate” but “comprehensive and measurable data” is not required on every issue. Drawing the line is not easy, to say the least, based upon this distinction.

The second limb of the Article 8 challenge concerned the lack of information provided to the applicants during the consenting process and the challenges which followed. They founded on the well-known case of Guerra and the equally important but less well-known case of Giacomelli which confirm that a right to environmental information is an aspect of the protection conferred by the Article 8 right. The UK government put 2 closely linked arguments in response. First, they said that the applicants had not exhausted local remedies because it had not pursued any outstanding requests via the long chain of potential appeals, namely, the Information Commissioner to the Information Tribunal to the Upper Tribunal to the Court of Appeal. Secondly, they denied breach of Article 8, in particular saying that the Article 8 right to information conferred by Giacomelli did not extend to a right to see all the studies which had been used in the assessment process. It was sufficient that the port made the public aware of its conclusions of those studies and the conclusions of its risk assessments, coupled with information in the Environmental Statement accompanying the planning and hazardous substances applications.

The Court accepted the UK’s arguments. The detail is at [248]-[250]. The gist is that by a combination of the information actually provided, and the domestic regimes enabling the provision of additional environmental information, the UK had fulfilled its positive obligations under Article 8. In effect, therefore, there was no right to Article 8 environmental information wider than that available under the freedom of information/environmental information regime, though it did not make this point in terms. It found no violation, and hence did not find it necessary to rule on the Government’s objection that the applicants had not exhausted local remedies.

Two things, therefore, of more general application. The first is that in a case of this sort, the Article 8 threshold is not high. If the consequence of an activity, if things go wrong, would obviously cause harm, a defendant has to address his arguments to breach, not to the threshold. The second is the point just made, namely that Article 8 may not carry a right to information wider than that contained in the Environmental Information Regulations – my caveat lies in the fact that the assessment of the adequacy of information provided was, as ever, case-specific.

By: David Hart QC

David Hart practices in environmental law, professional negligence, construction and medical law.

SUPREME COURT RULES BBC NEED NOT REVEAL INTERNAL ISRAEL-PALESTINE COVERAGE REPORT

Sugar (Deceased) (Represented by Fiona Paveley) (Appellant) v British Broadcasting Corporation (Respondent) [2012] UKSC 4 – Read judgment / press summary

The Supreme Court has ruled unanimously that an internal BBC report into its coverage of the Israeli Palestinian conflict was “information held for purposes journalism art or literature” and therefore need not be released to the public under the Freedom of Information Act (FOIA).

Four of the justices were of the view that even if information is held only partly for the purposes of journalism, art or literature, it is outside the scope of the FOIA. Lord Wilson however, was of the opinion that if information is heldpredominantly for the purposes of journalism, art or literature, it is outside the scope of FOIA and that the Balen Report was held predominantly for those purposes. The BBC will be relieved that the “partly” view prevailed, as the “predominately” test might in practice have brought a lot of internal documents within the scope of the FOIA.

The “Balen Report” was commissioned by the BBC in 2004 by a senior broadcast journalist, Michael Balen. It was commissioned following allegations of bias in the coverage. Mr Sugar, a solicitor, applied to see the report under the Freedom of Information Act 2000. The BBC argued that the report was “information held for the purposes of journalism, art or literature” and therefore fell outside of the Act under the terms of section 7 of Schedule 1 to the Act.

This is the end of a long road for Mr Sugar’s family. Mr Sugar, who unfortunately died whilst the case was being appealed, lost initially  but then won in his first appeal to the former Information Commissioner. The High Court then overturned that decision and the Court of Appeal agreed. The Supreme Court has upheld the Court of Appeal’s decision.

The following is based on the Supreme Court’s press summary:

Facts

By October 2003 pressure groups had complained that coverage by the British Broadcasting Corporation [“BBC”] of the Israeli-Palestinian conflict was not impartial [6]. In November 2003 Mr Malcolm Balen was appointed by the BBC to produce a report on the quality and impartiality of its coverage of Middle Eastern affairs [“the Balen Report”], which was intended to be an internal briefing document [6 - 7].

In November 2004 the Balen Report was considered by the BBC’s Journalism Board, which consequently commissioned a paper called “Taking Forward BBC Coverage of the Middle East” [9]. A number of internal changes resulted, including development of training, auditing of on air use of experts and the creation of a post of Middle East Editor [10].

On 8 January 2005, the Appellant, Mr Steven Sugar, made a request pursuant to s.1 of the Freedom of Information Act 2000 [‘FOIA’] for disclosure of the Balen Report [12]. The BBC is made subject to FOIA only to a limited extent, namely “in respect of information held for purposes other than those of journalism, art or literature” [1]. The BBC refused the request on the basis that it held the Balen Report for purposes of journalism and thus it lay beyond the scope of FOIA [12].

In March 2005 Mr Sugar applied to the Information Commissioner pursuant to s.50(1) of FOIA for a decision whether the BBC had determined his request within the terms of FOIA. The Commissioner concluded that the BBC had lawfully rejected his request as, even if the Balen Report had also been held for non-journalistic purposes, it continued to lie beyond the scope of FOIA because the journalistic purpose was manifestly dominant [13]. The Commissioner also observed that BBC was not a “public authority” for the purposes of FOIA and thus Mr Sugar had no right of appeal under s.57 of FOIA to the Information Tribunal [15].

On 30 December 2005 Mr Sugar nevertheless appealed to the Tribunal, which determined it had jurisdiction. The House of Lords upheld its jurisdiction decision (in Sugar v BBC [2009] UKHL 9) since, even in relation to a request for information which was held to lie outside the designation, the BBC remained a public authority for the purposes of FOIA [20].

Before the Tribunal, Mr Sugar contended that even if the information is held only partly for purposes other than those of journalism, the information is within the scope of FOIA [4]. The BBC’s primary contention was that where information is held for the purposes of journalism, that information is beyond the scope of FOIA even if it is also held – even predominantly held – for purposes other than journalism [3].

The BBC’s secondary contention was that the information is within the scope of FOIA only if the purposes other than journalism are the dominant purpose for which it is held [5]. On 29 August 2006 the Tribunal accepted the BBC’s secondary contention but held that the Balen Report was within the scope of FOIA as, once the report had been placed before the Journalism Board, it was held predominantly for purposes other than journalism [21].

On 2 October 2009 Mr Justice Irwin allowed the BBC’s appeal on the basis that the BBC had no obligation to disclose information that the BBC held to any significant extent for the purposes of journalism and further that, even if the test was one of dominant purpose, the Tribunal had erred in finding that the Balen Report had been held predominantly for purposes other than those of journalism [22].

The Court of Appeal dismissed Mr Sugar’s appeal, rejecting the dominant purpose construction and approving the BBC’s primary construction of the designation [23]. Sadly Mr Sugar died in January 2011. The court appointed his widow, Ms Fiona Paveley, to represent his estate in this appeal [4].

JUDGMENT

The Supreme Court unanimously dismisses the appeal. Lord Phillips, Lord Walker, Lord Brown and Lord Mance dismiss the appeal on the basis that, even if information is held only partly for the purposes of journalism, art or literature, it is outside the scope of FOIA. Lord Wilson would have dismissed it on the basis that, if information is held predominantly for the purposes of journalism, art or literature, it is outside the scope of FOIA and that the Balen Report was held predominantly for those purposes [57].

REASONS FOR THE JUDGMENT

Section 7(1) of FOIA provides that, where a public authority is listed in Schedule 1 of FOIA only in relation to information of a specified description, nothing in Parts I to V of FOIA is to apply to any other information held by the authority [31; 69]. Under Part VI of Schedule I to FOIA, the BBC is made subject to FOIA only “in respect of information held for purposes other than those of journalism, art or literature” [1].

At the material time BBC held the Balen Report for the purposes of journalism. The issue is therefore how the phrase “purposes other than those of journalism” should be construed [2].

Four possible categories of information held by the BBC exist:

(1) information held exclusively for purposes other than those of journalism [or art or literature];

(2) information held predominantly, but not exclusively, for non-journalistic purposes;

(3) information held predominantly, but not exclusively, for journalistic purposes and

(4) information held exclusively for journalistic purposes [73].

The Appellant argued that the BBC’s immunity under Part VI of Schedule I to FOIA was limited to information in category (4). The BBC’s primary contention, upheld by Irwin J and the Court of Appeal, was that the BBC had to disclose information only in category (1) subject to particular exemptions under other provisions of FOIA [73]. The BBC’s secondary contention, adopting a dominant purpose construction, was that only information in categories (1) and (2) had to be disclosed, subject to the exemptions.

The court holds that the Court of Appeal was correct in deciding that once it is established that the information sought is held by the BBC to any significant degree for the purposes of journalism, it is exempt from production under FOIA, even if the information is also held for other purposes [67; 75; 104; 111].

The legislative purpose of FOIA is to promote an important public interest in access to information about public bodies [76]; but in this case there is a powerful public interest that the public service broadcasters, no less than the commercial media, should be free to gather, edit and publish news and comment on current affairs without the inhibition of an obligation to make public disclosure of or about their work [78].

The purpose of the designation would have failed if the coexistence of other non-journalistic purposes resulted in the loss of immunity [78]. The real emphasis of the words is on what is not disclosable, namely material held for the purposes of the BBC’s broadcasting output [79]. The Tribunal should have some regard to the directness of purpose, considering the proximity between the subject matter of the request and the BBC’s journalistic activities and output [83].

The purpose of the designation is to protect the BBC from interference with its functions in broadcasting journalism, art and literature [64] and consequently a purposive construction of it would prevent disclosure that would risk such interference [65]. Information should be found to be held for the purposes of journalism, art or literature only if an immediate object of holding the information is to use it for one of those purposes [67].

Human rights

As to the contention on behalf of the Appellant that this approach would violate Article 10 of the European Convention on Human Rights [‘ECHR’], the Court noted the well-established body of jurisprudence of the European Court of Human Rights that defines the nature of the right under Article 10(1) as prohibiting a government from restricting a person from receiving information that others are willing to impart to him but does not construe the article as imposing positive obligations on a State to disseminate information of its own motion [89].

The jurisprudence relied upon by the Appellant falls far short of establishing that an individual’s freedom to receive information is interfered with whenever a public authority acting consistently with domestic legislation refuses access to documents [94]. Article 10 creates no general right to freedom of information [94] and consequently no interference with Mr Sugar’s ECHR rights [97]. Even if there had been such a right, it would be open to the State to legislate a blanket exclusion of any requirement to disclose information held for the purposes of journalism [98].

By: Adam Wagner 
Adam Wagner is a founding editor of the UK Human Rights Blog. He is a Legal 500 2011 recommended barrister specialising in public law, human rights and medical law, and was longlisted for the 2011 Orwell Prize for blogging. He can be found on Twitter as @AdamWagner1

GIVE OTs A VOICE IN THE COMMONS - UK MP

British MP Andrew Rosindell

A British MP has called for Bermuda and other overseas territories to be given representation in the UK House of Commons.

In a submission to the UK Parliament’s Backbench Business Committee, Andrew Rosindell said that since the UK makes decisions that can directly effect territories such as Bermuda, the territories should be able to have their own voices heard.

Mr Rosindell, the chairman of the British Overseas Territories All Party Parliamentary Group, said: “We give our 21 territories nothing. All they have is an informal all-party group, of which I am proud to be chairman.

“We have a democratic hole, with hundreds of thousands of people for whom we make laws, whom we ultimately govern and on whose behalf we can declare war, make foreign policy and sign international treaties. We have substantial control over their domestic affairs.

“Those territories that have sterling are bound by much of our own economic policy. In a range of areas, although the Crown dependencies and Overseas Territories are not part of the UK they are substantially influenced and ultimately governed by this Parliament, so it is wrong for them to have no voice at all.”

The Conservative Party MP said other nations, including Australia, Denmark, France and the Netherlands all have external territories, but those territories have representatives elected to external territory committees.

He said he hoped issues related to the overseas territories would be debated this year, noting that this year marks the 30th anniversary of the liberation of the Falkland Islands.

“Perhaps it is an appropriate time to establish the principle that at the very least the UK Parliament gives recognition to our Territories and Dependencies, and that we actually want to debate subjects that affect them, so that is why I have put in for this debate,” he said.

“I have been an MP for 11 years and I do not think there has been an actual debate on territories and dependencies, except when the British Overseas Territories Bill was introduced by the previous Government in 2001-02.

“There needs to be a similar kind of annual debate such as we have on Scotland and Wales. Our 21 territories deserve to be given that kind of recognition, and I hope the Committee will give that due consideration.”

In a recent Government submission to the Foreign and Commonwealth Office for a new White Paper on the Overseas Territories, Government called for a greater voice in the UK Parliament on issues affecting the Island.

A section of the submissions read: “This could be done by serving on Parliamentary Committees, for example, where matters affecting Bermuda’s national interest are discussed.”

Mr Rosindell visited the Island last year as part of a three-day fact finding mission, during which he met with Premier Paula Cox. He later told The Royal Gazette they had a frank exchange of views about the relationship between the UK and Bermuda.

He also described Premier Cox as being “cynical” about the British Government’s desire for closer links, comments that National Security Minister David Burch said were disrespectful.

By: Owain Johnston-Barnes

UK LOSES 3 OUT OF 4 EUROPEAN HUMAN RIGHTS CASES? MORE LIKE 1 IN 50, ACTUALLY

It is rightly said that 95% of statistics are made up. Today’s Daily Mail front page headline contained a typically exuberant statistical claim: Europe’s war on British justice: UK loses three out of four human rights cases, damning report reveals. According to journalist James Slack “Unelected Euro judges” are mounting a “relentless attack on British laws laid down over centuries by Parliament”.

The Telegraph’s Andrew Hough and Tom Whitehead chime in with Britain loses 3 in 4 cases at human rights court. But are they right? To add a bit of spice to this statistical journey, I will aim to use at least one analogy involving a popular TV singing contest.

The “explosive research” is a report by Robert Broadhurst, a Parliamentary legal researcher for a group of Conservative MPs. The headline grabbing figures are in this paragraph:

Between when it first signed up to the Court‘s jurisdiction in 1966 and the end of 2010, the UK faced over 350 rulings from the judges in Strasbourg… In about three-quarters of these judgements the Court ruled that the UK had breached a Convention right.

This is simply misleading. Only counting final judgments of the court obscures the reality of how it operates. In fact, the number of claims which are brought to the court is enormous compared to the amount which reach full hearings. This is because the vast majority are struck out at an early stage, and those strike outs are effectively victories for the UK.

Judges consider the case and decide that it is “manifestly unfounded”; similar to when a domestic court finds that a claim has no reasonable prospects of success. This is a very high bar, which means that the vast majority of claims don’t reach it. Some of these will be not worth the paper they are written on, but many are genuine claims and to ignore them when considering the court statistics is to miss most of what the court does.

Broadhurst’s figures are taken from the European Court of Human Rights’ owndocument, which reveals that since 1966, out of a total of 443 judgments against the UK, in 271 there was a finding of at least one violation of the European Convention on Human Rights. This is compared to 86 finding no violation.

But this is just the tip of the iceberg. As demonstrated by the rather nice pie diagram inanother of the court’s own reports, since 1966 97% of cases against the UK were declared inadmissible, that is they were struck out. This means that in reality, of all the claims brought before the court against the UK (in the region of 15,700, by my calculation), only 3% made it to full hearings, and a – let’s face it miniscule – 1.7% succeeded.

So, not three quarters, as the Mail suggests, but under one in fifty cases brought before the court against the UK were successful. As it happens, the Strasbourg court is good at publishing statistics, but perhaps could have been clearer with these, for example by including the total number of claims brought in its Violations by State table.

But in any case there is no excuse for a significant report – signed and prefaced by 10 MPs – making such a hash of its statistics (and I haven’t even mentioned the Mail’s “unelected” judges, who are actually elected).

Presenting the figures in this way is a bit like watching X-Factor from the live finals, which begin with 12 contestants, and extrapolating that since one of them wins in the end, therefore almost 10% of X-Factor applicants ultimately win the contest. In reality tens of thousands apply, so only a tiny percentage of them “win”, but most are “struck out” as being bad singers in the months before the finals.

The high proportion of finally decided cases which are successful is interesting, but it hardly represents a court which is mounting a “relentless attack” on the British laws. Indeed, there are so few fully heard cases that any statistical analysis is fairly meaningless anyway.

In fact, what the statistics do reveal is that the European Court hears a tiny amount of cases against the UK each year; just under 30. The success rate for the lucky few Claimants is quite high, but it is about the same the success rate across all states, and is probably is more a reflection of the high “manifestly unfounded” bar the court sets for Claimants than any “relentless attack” on British justice. In other words, only good cases get through, so a lot of those ultimately win.

So, legal researcher Robert Broadhurst can pop up on to the legal naughty stepfor disservices to statistics, and the Daily Mail and Telegraph journalists can join him for their gleefully unquestioning acceptance of his statistical sleight of hand.

By: Adam Wagner

Adam Wagner is a founding editor of the UK Human Rights Blog. He is a Legal 500 2011 recommended barrister specialising in public law, human rights and medical law, and was longlisted for the 2011 Orwell Prize for blogging. He can be found on Twitter as @AdamWagner1

DAVID CAMERON TELLS SCOTTISH NATIONALISTS TO PUT UP OR SHUT UP ON INDEPENDENCE

Prime Minister of the United Kingdom David Cameron 

Photo: PA Photos

PUT up or shut up. That is the risky (but arguably rather canny) message that David Cameron has sent to the pro-independence head of the Scottish devolved government in Edinburgh, Alex Salmond. Specifically, Mr Cameron has announced that the British government and Westminster Parliament are willing to give Mr Salmond the referendum on Scotland's future that he says he wants—as long as it is a proper, straight up-and-down vote on whether to stay in the United Kingdom or leave, and is held sooner rather than later.

It is not that Mr Cameron wants to break the three hundred year old union between London and Edinburgh. Both emotionally and intellectually, he is fiercely committed to the union as a source of strength for both Scotland and Britain, insist Conservative colleagues who have discussed the question with him. Publicly, he has pledged to oppose Scottish independence with "every fibre" of his being.

But Mr Cameron and his ministers also feel that Scotland has been drifting in a constitutional limbo, ever since Mr Salmond's Scottish National Party (SNP) won an outright majority at Scottish parliamentary elections in 2011 (a feat that was supposed to be impossible, under the complex voting system used in Scotland). The SNP campaigned on a simple manifesto pledge to hold a referendum on the future of Scotland. But after his thumping win Mr Salmond slammed on the brakes and started talking about holding a consultative vote in the second half of his term in office, ie, some time between 2014 and 2016.

The accusation from Mr Salmond's opponents is that he is "frit", or too frightened of a No vote, to hold a straightforward independence vote any time soon. Instead, goes the charge, Mr Salmond is planning a fiddly, three-way vote on whether to stay, leave or seek another big dose of devolution to transfer more powers from Westminster to the Scottish parliament at Holyrood. Should such a vote end up with Scots splitting roughly equally between the three options, Mr Salmond would then turn round and say he had an overwhelming mandate to seek drastic changes, pro-union politicians grumblingly predict.

In a final provocation, Mr Salmond is widely reported to be planning to hold such a referendum in 2014, around the 700th anniversary of the Battle of Bannockburn. That would link the vote to an emotionally-resonant victory that (according to popular belief) saw Robert the Bruce and a band of hairy Highland heroes defeat a much larger army of sneering, heavily-armoured Norman knights sent north by a simpering English tyrant, Edward II. Short of having a blue-faced Mel Gibson charge up Sauchiehall Street crying "Freedom", the theory goes, Mr Salmond and the SNP could not pick a more stirring backdrop to a referendum.

Understandably, it is the timing question that dominated this morning's headlines, after what was clearly robust briefing by sources close to the prime minister. The morning newspapers reported that Mr Cameron's brilliant wheeze involves making the SNP a time-limited offer of a binding referendum, with a shelf-life of just 18 months. Only the Westminster Parliament has the power to order a legally-binding referendum, the same papers report, so logically this would pose quite a dilemma for Mr Salmond and the Scots Nats, prodding them to hold their vote by 2013 at the latest. The Independent called it a poker move, and you can see what they mean: it sounds as if Mr Cameron is seeing Mr Salmond's consultative vote, raising him a binding referendum and calling him.

The SNP has reacted crossly, with Mr Salmond's deputy, Nicola Sturgeon, telling the BBCthat Mr Cameron was trying to interfere in Scottish democracy, and predicting that this would backfire, because the "more a Tory government tries to interfere", the "greater the support for independence will be". All referendums in Britain have always been consultative, she added, so promises of a binding referendum are "absurd". The SNP majority in the Scottish parliament won office on a clear prospectus of holding a referendum in the second half of its term, she concluded. Thus "it's right that now that we have the mandate we can proceed on that basis."

Does a stand-off loom? There is no doubt that Mr Salmond takes this mandate business seriously, rejecting any talk of the Westminster Parliament seeking to organise his referendum. Last October, Lord Forsyth, a former Conservative member of parliament and cabinet minister with responsibility for Scotland in the government of John Major, stirred up the House of Lords with a rather cryptic question to the government, asking if it was true that Mr Salmond had been "threatening government Ministers that if we constitute a legally conducted referendum campaign in Scotland, he will make it his business to boycott that referendum"? Could the government confirm that the first minister was "getting a bit too big for his boots?" Lord Forsyth ventured.

On being questioned by Scottish reporters later, Lord Forsyth offered further details of his claim. Mr Salmond, he had been reliably informed, had told George Osborne, the Conservative chancellor of the exchequer, that if the government in London and the Parliament in Westminster set up a Scottish referendum he would use his powers as Scottish first minister to block it, for instance by preventing the Scottish police and other public services from administering and overseeing such a vote. Lord Forsyth had checked the story with Mr Osborne, who had confirmed it, he added, while Mr Salmond's staff had only issued what he considered a non-denial sort of denial.

For the moment, we are still in the realm of clashing politics. Mr Cameron made his position clear in an interview on Sunday with the BBC's Andrew Marr, arguing that the Scottish people needed and deserved more clarity on who was going to be asking them about independence, when, and what the question was going to be. Scotland needed to know that any vote would be fair, legal and decisive. To that end, the British government would set out its plans in a few days, the prime minister said, adding:

"I think what Alex Salmond is trying to do—I think he knows the Scottish people, at heart, don't want a full separation from the United Kingdom—and so he's trying to sort of create a situation where that bubbles up and happens... Whereas I think we need some decisiveness, so we can clear up this issue"

More technical details will not be long in coming. Government sources say that the current cabinet minister for Scotland, or Scottish Secretary, Michael Moore, will be unveiling plans to the House of Commons on Tuesday. Mr Moore, a Liberal Democrat, will play down the question of timing and play up the importance of a straightforward, in-or-out question, I am told. His statement will set out measures that could be included in a new Scotland Bill currently trundling through the House of Commons and House of Lords in Westminster, which is already set to deepen devolution in various ways.

Government sources say that it is a bit of a red herring to draw a contrast between binding and consultative votes. The political reality is that Mr Cameron's coalition government is not about to prevent Scotland from splitting away if a decisive majority of Scots vote in a referendum to leave. A decisive consultative vote would be binding for a'that, sources say.

The same sources say that talk of a precise 18-month deadline for holding a vote is also missing the main thrust of the British government's gamble. Yes, Mr Cameron and his ministers would prefer a vote sooner rather than later, not least because they think that Scotland is being kept in limbo by uncertainty about its constitutional fate, and fear that that is hurting the Scottish economy.

But what really exercises the government is three different things: the legality of the vote; securing a clear, binary question and ensuring that the referendum campaign is fairly- and transparently-funded and overseen by an independent electoral commission.

Prominent unionists agree. If Mr Salmond wants to "make a fool of himself linking the timing of his referendum to a mediaeval battle", then supporters of the union should not "go to the stake" over the precise date of a referendum, a leading player says. What matters is getting the right question: in or out.

Within the government, there is some surprise that the whole obeying-the-law thing is not attracting more attention. Sources point to a growing body of legal opinion arguingthe Scottish parliament has no right to organise a referendum on Scotland's constitutional settlement with the United Kingdom. Under the terms of the 1998 Scotland Act that set up the Holyrood parliament, constitutional questions are "reserved" for the British parliament in Westminster.

Government ministers believe that that if the Scottish parliament passed legislation to hold a referendum, it would certainly face legal challenges, plunging the whole process into uncertainty if not chaos. The House of Lords fairly heaves with distinguished former Scottish judges and politicians who care very much about the legal niceties, and who are poised to table any number of amendments to the Scotland Bill when it enters committee stage in the upper house on January 26th.

In short, the government in London is sure that it has a legal mandate to weigh in, whether the fierier sort of nationalist cares to admit it.

Mr Salmond and the SNP seem just as sure that they have a democratic mandate to run this show and that the main Westminster parties, whether Conservative, Liberal Democrat or Labour, have no political interest in using legal niceties to trump democracy. Brian Taylor, the BBC's well-informed political editor in Scotland, makes the point that any legislation in Westminster establishing a referendum might have to be approved by Holyrood in any case, after political guarantees not to ram the Scotland Bill through against the wishes of the devolved Scottish assembly.

This may be right. But a Scottish Labour grandee offers a neat concluding point. Mr Salmond does not just face legal pressure from London to hurry up and organise a vote. He faces mounting political pressure at home, too. Everything in Scotland is "on hold", awaiting a referendum, says the Labour figure. That means Mr Salmond simply cannot duck naming a date for much longer.

It is all pretty ironic. Political and legal forces are aligning to put the Union to a once-in-a-generation test. And Mr Cameron, a politician who wants to preserve the status quo, finds himself pressing an in-out vote on Mr Salmond, whose adult life has been devoted to the cause of Scottish independence.

By: Bagehot's Notebook

STEPHEN LAWRENCE: A GENERATION OF SHAME

Stephen Lawrence

Stephen Lawrence verdict delivers justice after 18-year wait

It is impossible not to have mixed feelings at the convictions of Gary Dobson and David Norris for the murder of Stephen Lawrence in the Eltham district of south-east London 18 years ago. Eighteen years – the same span of years lived by Lawrence before his murder in 1993 – is far too long for justice to be denied in any criminal case, let alone one that was so serious and so emblematic for the nation. Seven Scotland Yard investigations later, the police's efforts have finally generated two convictions by an Old Bailey jury. But it has been an insufferable ordeal for Lawrence's parents, both in terms of time and emotion. Doreen Lawrence, Stephen's mother, was right in every way to say that the verdicts are no cause for celebration.

This is true not least because the case is not yet over. Sentences have yet to be imposed on Dobson and Norris. There may be other charges to come, as Neville Lawrence, Stephen's father, urged after the verdicts. So the many failures to secure convictions over the long years cannot simply be dismissed now as an embarrassing prelude to yesterday's more satisfactory outcome that can somehow now be forgotten. These events have inflicted a generation of shame on the Metropolitan police and on those responsible for the delay of justice – primarily the suspects and witnesses who lied for 18 years about that night and the friends and family who protected them.

It is important to state in plain terms why this was so. Stephen Lawrence was murdered because he was black. The initial police failure to follow the evidence trail with sufficient speed, professionalism and determination reflected exceptionally badly on some officers' values, and their understanding of the society they lived in. Racist attacks in Britain neither began nor ended with the Lawrence case. But the murder brought the question of police complacency about race – supposedly a much higher priority in policing after the 1981 Scarman inquiry – to a head. Much has changed for the better on that front since 1993, not least because of the Lawrence case and, in particular, because of the 1999 Macpherson inquiry. Yesterday's convictions were the result of the indignation which engulfed the police for their earlier failures.

The turning of the tide on the Lawrence case clearly owes more to Stephen Lawrence's parents than to anyone else. Their reactions to yesterday's result differed – Mrs Lawrence less reconciled, her former husband more relieved. Yet their common determination to win justice for their murdered son was the key, assisted, it should be said, by bold journalism from the Daily Mail. It did not simply keep the case in the public eye. It also became a national reprimand to the criminal justice and political system in a wider sense. Changes were made – improvements in forensic investigation of the sort which delivered the crucial evidence at the trial, as well as legal changes allowing the double jeopardy rule to be set aside and permitting evidence of bad previous character to be heard in court. The verdicts vindicate those changes. There is less justification for any complacency over the Lawrence case outcome than in most criminal cases. The verdicts have not purged English criminal justice of its failures. Hate crimes still go unprosecuted. But Neville Lawrence was right to say that he has spent the past seven weeks at the central criminal court watching justice being done; right, too, to speak of relief at the outcome. In the end, good policing, official determination and a jury have proved that the system is strong enough to correct its mistakes. The convictions of Dobson and Norris are a far better outcome for the Lawrences and for Britain than their acquittal would have been. Mixed feelings? Of course. Profoundly so. But as Shakespeare puts it at the end of the convulsions of All's Well That Ends Well: "All yet seems well; and if it end so meet the bitter past, more welcome is the sweet."

By: the guardian