21 August 2015

"170 insults to the dead..."

It is over. After a morning's drubbing from counsel for the bereaved families, the Glasgow fatal accident inquiry has heard its last from Harry Clarke. All that remains is for Sheriff Beckett to hear final submissions.

Today's evidence session seems to have proved as unedifying and uninstructive as yesterday's. Mr Clarke continued to invoke his right against self-incrimination. He continued to decline to answer the questions put to him. Practised cross-examiners all, Clarke was gutted by a series of strikingly quoteable barbs from the inquiry's lawyers. 

Significantly, the driver indicated that he would have been willing to answer counsels' questions, if the sword of the private prosecution had not been dangling over him. We don't know if he would have taken the stand and cut a remorseful, more sympathetic figure if Dorothy Bain QC had not introduced the prospect of a private prosecution into proceedings. Perhaps Mr Clarke would, in any case, have behaved as he behaved yesterday. 

But there is a tension between "wanting answers" on one hand, and wanting punishment on the other. Shy away from this conclusion. Sympathise with the fate of those who have been bereaved. Understand their anger with Mr Clarke. Wish he was a bolder man who feared no consequences and wished only to tell his story. All of this I can understand. But the hard truth of it is this: by trying to secure both truth and retribution, the FAI families have made it much more likely that they will secure neither. Understandably, perhaps, none of the coverage in the mainstream media has been prepared to point this out. Harry the doughball, Harry the inexplicable, heartless selfish monster is an easier story to tell. 

This morning's media - unsurprisingly - has put the worst construction possible on Clarke's silence yesterday, suggesting it was motivated by arrogance, inhumanity, or just plain nastiness.  For reasons I set out last night, this image of Mr Clarke leaves out crucial context which puts his behaviour in a more understandable, if not particularly heroic or admirable, light. Questions are now - quite properly - turning to the question of why the Crown Office decided against prosecuting Mr Clarke. Was the decision precipitately taken? The reasons for this decision have been so obscured in the past few weeks that it is worth recalling the explanation prosecutors gave last February. A Crown Office spokesman said:

"It is clear on the evidence at the time that the driver lost control of the bin lorry, resulting in the tragic deaths, he was unconscious and therefore not in control of his actions. 
He did not therefore have the necessary criminal state of mind required for a criminal prosecution. In addition the Crown could not prove that it was foreseeable to the driver that driving on that day would result in loss of consciousness.   
This still remains the case and all the relevant evidence regarding these points was known to Crown Counsel at the time the decision to take no proceedings was made."

The criminal law demands that prosecutors prove not only a guilty act - an actus reus - but also a guilty mind - mens rea. If I intend to harm you, or harm you because of complete disregard for the consequences of my actions, I can be punished. But if my actions were neither of these things, neither intentionally wicked or reckless, the criminal law will not generally hold me responsible for the damage I caused. 

I didn't follow the medical evidence heard by the inquiry closely enough to come to a clear understanding of the expert consensus on whether Clarke's collapse was reasonably foreseeable. I doubt you did either. I don't have the expertise to come to any meaningfully informed view on this question following my own lights. All I have is assumptions -  physiologically ignorant assumptions - which begin with the disaster in George Square last December and work backwards, coloured by the cold and unforgiving light of retrospect. The nation seems to have acquired a suspiciously high number of armchair experts in the diagnosis, treatment and recurrence of vasovagal syncope. I don't know enough - not nearly enough - to exculpate or to condemn.

The Crown have indicated that their decision last Feburary was informed by expert medical material, speaking to these critical issues. It isn't clear whether the inquiry has produced anything new or unexpected which might have rebalanced the assessment towards a prosecution - if only for the minor crimes of dishonesty which Mr Clarke may have committed in his interactions with his employers and the vehicle licensing authorities. Prosecutors seem to be maintaining that nothing which Sheriff Beckett has heard in court number five has surprised the Solicitor-General. 

Nobody in public life should be above reproach. The judgement of no institution should be uncritically trusted. Informed and constructive criticism must always be welcome. To err is, proverbially, human. The existence of fatal accident inquiries attests to this. Sheriff John Beckett QC will shortly retire to consider the lessons which must be learned from this sorry turn of events, to weigh up the medical evidence, to consider whether our safeguards are nearly rigorous enough. On his shoulders falls the heavy duty of piecing together a constructive response to this tragedy. Good luck go with him. 

20 August 2015

"Answer for your actions, Harry..."

As I type, Harry Clarke is being questioned by the Solicitor-General in Glasgow Sheriff Court. Lesley Thomson is seeking to establish the circumstances leading up to the unconsciousness which gripped him at the wheel of his bin lorry last December, and which killed six people. And Harry Clarke? Harry Clarke is mum. Save for the occasional, slightly more detailed response, each question is being met with the same reply: "I don't wish to answer that question." Yet the examination continues unabated. 

Journalists are sharpening their pens. I expect Mr Clarke will be crucified in the pages of the media tomorrow for his failure to answer. But if you are prepared to think critically about the driver's position, and to be fair to him, his silence may not be admirable, but it is rational. It is self-preservation. And more than that, it is almost certainly on his lawyers' advice. Let's unpack this a little. 

Clarke's omerta has been a powerful source of frustration for those close to the trial. The media have reported that family members of those killed have left the courtroom in disgust. But to be perfectly honest, today's spectacle, today's fruitless inquisition, is the logical consequence of some of the families' decisions to charge ahead with the idea of a private prosecution. It should surprise nobody. I'd bet my bottom dollar that the families were well-advised about the implications of raising, or even threatening to raise, a bill of criminal letters against the bin lorry driver. So long as there was any threat of prosecution hanging over his testimony, Mr Clarke was almost certain to take the judicious course and keep his mouth shut. Why?

In our criminal courts, an accused person has a right to silence. If questioned under suspicion by the police, you are obliged only to give some scant details - your name, date of birth, place of birth, nationality - but you are not obliged to answer any other questions. Police officers aren't entitled to interrogate you till you crack under the pressure. It is for the prosecutor - usually, for the state - to establish their case against you beyond a reasonable doubt. If you appear as a witness in our criminal courts, you must answer legitimate, relevant questions which are put to you. If you prevaricate, or refuse to answer, you commit a contempt of court. 

But if you are in the dock, you cannot be forced into the witness box to give evidence against yourself. You are not obliged to answer questions which might incriminate you. In Scotland, at least, your silence isn't - or shouldn't be - held against you.  Countless accused people every year avail themselves of this right, and let judges and juries test the evidence which the procurator fiscal is able to marshal against them. This privilege against self-incrimination is an essential part of a fair trial. If the Crown Office had decided differently, and Harry Clarke had been indicted for some criminal offence, he would have been entitled not to enter the witness box. He wouldn't have to "answer for his actions" at all.

Some of the families of those tragically slain before Christmas last year have indicated that they want to take private criminal proceedings against the Glasgow City Council employee. Looking at the legal hurdles they will have to overcome, I'm sceptical about the likelihood of them securing the blessing of the High Court and succeeding in this endeavour. At this stage, however, the families' intentions remain entirely opaque. What charges would they hope to pursue against Mr Clarke? Fraud? A driving offence? Culpable homicide? 

Some ideas have been bandied around in the pages of the press, but Mr Clarke stands in the witness box today, with no idea what parts of his testimony may or may not be relevant to the private prosecution which some of the families want to pursue. He cannot judge what parts of his evidence might or might not be used against him. Sheriff Beckett told him at the outset that he need only tell the inquiry his name and address. Anything else - any other query - he is entitled to decline to answer. He is exercising that right. At the current rate, he may be exercising it for some hours and days to come in the Sheriff Court. 

But if you found yourself in his position, would you ignore your lawyer's advice? If so, you may well be a nobler and more self-sacrificing character than this man. Perhaps the right thing to do would be to stand behind your deeds and your mistakes, and to take what comes.  Reading reports from the inquiry over the last few weeks, I'm struck by the all too human qualities of Harry Clarke. An unfit, unhealthy man of a certain age with limited education and limited skills. A man who had his trade - and who desperately wanted to keep it. A man who succumbed to the all too human desire to keep his livelihood, little thinking, little imagining, the gruesome consequences of the white lies he thought he told. I don't know about you, but I can see clearly, all too clearly, how this might happen. 

I expect the full weight of public opinion to come crashing down on him today and tomorrow. The principal purpose of the fatal accident inquiry is becoming ever more obscured by the idea that this is the trial of Harry Clarke. But in our legal system, accused people do not have to "answer for their actions", in the Daily Record's phrase. It was only freedom from the risk of prosecution which might have ennabled the driver to speak freely about his faults and failings.

It was only this that didn't require this terribly ordinary man to show extraordinary courage, and candour, and contrition in telling his story. But it turns out he isn't extraordinary, or brave. Few are. I doubt I would be either, in his circumstances. Whether you think it was rightly or wrongly taken, by trying to circumvent the Crown's decision not to prosecute Mr Clarke, the FAI families will suffer again today for two more all too human frailties - for caution, and for fear. 

17 August 2015

Harry Clarke and Criminal Letters

In the Sheriff Court this morning, Dorothy Bain QC, representing one of the families bereaved by the Glasgow bin lorry crash, asked the judge to adjourn the fatal accident inquiry. Bain indicated that her clients want to pursue a private prosecution of the driver, Harry Clarke, whose collapse at the wheel of his vehicle resulted in the deaths of six people just before Christmas last year.

The idea of a private prosecution has rumbled on in the media since Mr Clarke has been transformed in the public consciousness from a blameless, tragic victim of an unforeseen medical calamity of his own to a serially dishonest fainter, clutching a thick sheaf of sick notes and doctors' appointments. 

You will remember: the Crown Office have already ruled out any prosecution of Mr Clarke or his employer, Glasgow City Council. As Professor Chalmers has written elsewhere, the Lord Advocate cannot renounce this statement in the light of the evidence of the Inquiry. Clarke seems immune from criminal proceedings from that direction. 

It remains unclear, however, whether the FAI has adduced any evidence which wasn't known to the Crown when they decided not the proceed against Harry Clarke and Glasgow City Council last February. Remember, the fatal accident inquiry isn't the trial of Harry Clarke - but an opportunity for Sheriff Beckett QC to idenfity what "reasonable precautions" might have been taken to avoid the deaths, and what "defects" in "any system of working" contributed to the death or accident. Even a cursory attendance to the evidence which has been adduced at the inquiry suggests a number of weaknesses in how the DVLA licenses heavy goods drivers, and how Glasgow City Council employs and monitors the health of its licensed staff. Mr Clarke's own reputation is unlikely to emerge untarnished. Lessons to be learned.

Nevertheless, the tarring and feathering continues. The hue and cry for a private prosecution of Mr Clarke - I note that nobody seems to be keeping their beady eye on Glasgow City Council's compliance with health and safety rules - seems the logical conclusion of the current media climate of judgement and recrimination. But how easy is it to secure a private prosecution anyway? What the legal rules and tests involved?

You should be relieved to hear that it isn't all that easy to bring a private prosecution in Scotland. Indeed, if the evidence of the last half century is anything to go by, it is damn near impossible. Procedurally, a petitioner must apply to the High Court for a Bill of Criminal Letters. If granted, the private prosecution may proceed. If refused -- that's an end of the matter.

Recent history throws up only a tiny handful of decisions on whether or not to grant criminal letters. As Professor Chalmers tweeted earlier, sanction for a private prosecution has only been granted twice since 1900. One famous example was the gruesome and harrowing Carol X case of 1982. But the circumstances here seem quite different. So a series of questions for you, for the family, and for the media to focus their minds on. 

Firstly, the commentary has been supremely vague thus far, talking about "bringing a private prosecution" without specifying what offence the families wish to see Mr Clarke tried for. So what criminal offence are the families alleging that Mr Clarke has committed? From what I can see, nowhere in the news reports has any actual offence been alleged. Culpable homicide? Culpable and reckless conduct? Something else? Criminal letters can only be sought for indictable offences, so that rules out summary, less serious statutory complaints. What is it to be?

Secondly, in order be granted the criminal letters they crave, the families would have to demonstrate "very special circumstances which would justify" the Court "in taking the now exceptional step of issuing criminal letters at the request of a private individual". Whatever the charge the families might hope to make, how can the circumstances of this case be said to be "very special", or "exceptional"?

The Crown considered the evidence. They decided a prosecution was not in the public interest. They declared so in public. Press reports have suggested this was based on all of the evidence advanced before Sheriff Beckett. Unless these reports are fundamentally misleading - and we don't know if they are or not - little in the case of the decision not to prosecute Mr Clarke seems "very" special" or "exceptional". We're a world away from Carol X. 

Thirdly, it is often suggested that petitioners stand a snowball's chance in hell of securing their criminal letters and winning their right to prosecute privately unless the Crown supports their case. This happened in the gruesome Sweeney case, and criminal letters were granted for a private prosecution. But a sympathetic Crown aren't the last word on the matter. A 1995 private prosecution for rape foundered despite the acquiesence of the Lord Advocate, on the grounds that the circumstances of the case weren't "very special" or "exceptional".

Which raises another important question. Would the Crown support the bereaved families' Bill or not? If not, the smart money says their case is doomed. But even if Frank Mulholland did reverse ferret, and decide to back the private action intimated today, we're still stuck with the high hurdle of "very special" and "exceptional" circumstances. 

You can understand the feeling driving this action by the bereaved families. Hearing of cock-up after cock-up, dissembling on dissembling from an unhealthy man whose actions and inactions killed their loved ones -- you can only sympathise. But will they secure criminal letters? Will they make the appointment with criminal justice for Harry Clarke which the Lord Advocate ruled out earlier this year? The smart evidence suggests its a fool's hope. 

11 August 2015

Do we really understand English politics?

One of my favourite, counterintuitive political facts is that Oxford has fewer Tory councillors than Glasgow.  The Edwardian stone, the tweedy dons, the unselfconscious wearing of straw boaters - in the Scottish public imagination, you might expect the educational centre of the British establishment to be true blue, all the way. Not so. Oxford wards return precisely no Conservative representatives, while Pollokshields yields up Glasgow's solitary Tory. 

In fairness, the city is a speck of red in the surrounding blue: Banbury, Henley, Witney. Labour are entrenched in east Oxford. The Tories snatched Oxford North and Abingdon in 2010 and held it comfortably after the Liberal Democratic collapse of 2015. But when I first learned this small statistic, it made me wonder: did I really understand English politics as well as I thought? Was I projecting onto, rather than really appreciating, the complexity and ambivalence of the political ideas and identities of the folk who lived around me? 

There is a tendency among Scottish political obsessives - and I count myself among them - to imagine that we understand English politics because we keep abreast of what happens at Westminster. But just as what goes on on the green benches is a poor guide to the constituencies we live in, so too, the Commons feels a million miles away from the sleepy back streets of Oxfordshire, or the noisy conurbations of the midlands and the north. Logical consequences follow. You'll have heard the old gag about the United States and Great Britain being "two countries separated by a common language." The shared language in which American politics is transacted creates an illusion of accessibility. But as we listen to Clinton drone on, or try to follow Trump's latest quackery, you gradually realise that we really miss and misunderstand as much as we appreciate. 

When I moved to the south of England, I also came to realise - a bit guiltily - that was I interpreting the politics of my English colleagues and neighbours using a series of very crude, roughcast ideas. And often as not, my stock characters proved dead wrong. They were false friends. There was the medieval historian - a picture of crusty reaction - who radiated social snobbery but who was a Labour man to his fingertips. His politics recalled the establishment of the old Labour Right: Healy, Wilson, Smith.  A conservative figure - make no mistake - but with only scorn for David Cameron's Conservative government. 

Then there was the bluff College porter who was a dyed in the wool Tory. Not a Scullion, but a tough-minded and conclusive kind of character, satisfied with his lot. Even stranger was the delightful, kind-hearted and subversive old dame who seemed to support little in the party manifesto but who had also voted Tory all her days. Still more perplexing were the floating voters who had ping-ponged unselfconsciously between Labour and the Tories for decades.

It seemed to me like Beowulf voting for Grendel's mother, and vice versa. I struggled even to begin to compute the idea of politics which made these choices seem reasonable and understandable. James Meek did a power of work for UKIP in the same vein in the London Review of Books -- but somehow the idea of a Labour-Tory voter remains elusive. The only two I can think of are Alex Massie and Chris Deerin -- hardly a representative sample of what is a commonplace character in English constituencies. We struggle to take off our Scottish political goggles, and too often, they distort our vision and our understanding.

The political passions of others you met were more obvious. The bumptious former city trader with army affectations might have come from central casting or Tory central office. The young, highly-educated precariat, preoccupied by questions of social liberalism, who once voted Liberal Democrat, but now cast ballots for Labour without much enthusiasm, or tacked Green. The North Oxford Liberal Democrats - wealthy, worthy, perjink - who couldn't vote Labour out of social snobbery, and declined to support what they saw as the vulgar, worldly Conservatives for much the same reason. This mortgaged, property-owning tribe were entirely unmoved by the 2010 coalition and continued to return local Liberal representatatives with thumping votes. Theirs was a liberalism of the polite centre.  

But having spent a number of years living south of the border in growing suspicion -- more and more, I find my own prejudices a poor guide to English politics. Perhaps they always were. But the political conversation north of the border has now diverged so significantly from the experience south of it, I now acutely mistrust my own impressions. In Labour politics, the importance of these issues and judgements are now acute.

If Jeremy Corbyn wins the UK Labour leadership, can he carry the country in 2020? Will England warm to him, disappointing his many detractors who cry him "unelectable"? Or is Liz Kendall right - that only tough medicine will do and that Labour must make further concessions to Osborne's vision of Britain to win again? Judging this correctly is critical for Labour's future. A couple of weeks back, SNP spinner Erik Geddes posted this fascinating table on Twitter. Based on research by YouGov, it asked what folk thought were the most important reasons for Labour's defeat in 2015.


The divergence between the explanations giving in Scottish and English samples are revealing.  The preoccupations which drove Labour's disastrous showing in May north and south of the border are fundamentally different. They are seen differently. Andy Burham is, I think, dead wrong to argue that Labour's route back to power runs through Glasgow. 2015 did not represent a temporary blip, but a generational shift in political allegiances north of the border. It wasn't a sudden change, but the logical consequence of decades of Labour decline. It only completed the process which has been chipping away at the party's electoral performance for years.

To put it at its harshest, if UK Labour's route to victory runs through Glasgow, then Labour is going to continue to lose to their Conservative opponents for the foreseeable future. Finding a winning strategy for England is essential. I have no idea which of the four candidates - if any - is best placed to do so. However, in striving to identify that winning strategy, they'd be well-advised to ignore the advice of their Scottish comrades, critics and fellow-travellers. We just don't get it.

10 August 2015

What are fatal accident inquiries for?

It's a fundamental question -- but listening to tonight's news headlines on BBC Radio Scotland, I found myself wondering if the answer to it is well understood. 

The airwaves have been crackling with stories about the health and lies of Harry Clarke for some weeks now. The Sheriff Court has heard evidence from a score of witnesses, suggesting that the Glasgow bin lorry driver was less than honest about his medical history during his recruitment by the City Council, and in his dealings with his medics and the licensing authorities. 

Striking, accusatory front pages are mounting up against him. Talk has turned to the feasibility of his private prosecution, after the Crown Office ruled out proceeding against Mr Clarke. Others are suggesting the driver ought to be liable to prosecution on a charge of fraud at common law. James Chalmers of the University of Glasgow has covered the issues well here.

These inventions cannot make comfortable reading for Mr Clarke - from whom, as yet, Sheriff John Beckett QC has heard nothing. Kenneth Roy worries that the FAI has been transformed into the trial of Harry Clarke, And listening to and reading the coverage of the proceedings before Sheriff Beckett, I can understand why the casual listener might find it easy to mistake the inquiry for an assize into the the life and lies of the now much-maligned Mr Clarke, whose white lies could be seen to have contributed to an unnecessary tragedy. But it is important for us to bear in mind (a) what fatal accident inquiries are for and (b) what precisely Sheriff Beckett will and will not be called upon to decide when he concludes hearing evidence.

First, the nuts and bolts. As you are probably aware, in Scotland, we have no echo of the English system of coroners' courts and inquests.  The Procurator Fiscal is responsible for investigating deaths and ordering autopsies if these are warranted. In addition, the Lord Advocate can apply to the sheriff to hold a public fatal accident inquiry. These are particularly important where an individual dies while in the custody of state authorities. The chief public prosecutor may also do so where they judge that it is:

"... expedient in the public interest ... on the ground that it was sudden, suspicious or unexplained, or has occurred in circumstances such as to give rise to serious public concern."

So what is it the sheriff's responsibility to decide? First, let's clear away some obvious misconceptions. One: the judge cannot decide on criminal or civil liability. They cannot jail or fine anyone. They cannot award damages or compensation. An FAI is not a criminal accusation or a personal injury claim. These are separate questions, requiring separate legal proceedings. 

Even if the judge reaches searing conclusions about individual or organisational negligence or incompetence - the FAI isn't a criminal case. The procurator fiscal isn't prosecuting - they are trying to assist the sheriff to get to the bottom of the case. So what will the sheriff have to decide? The Act charges him with five key duties. Having heard all the evidence, Sheriff Beckett must set out: 
  1. Where and when the death and any accident resulting in the deaths took place;
  2. Identify "the cause or causes of such death and any accident resulting in the death";
  3. What "reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided";
  4. "the defects, if any, in any system of working which contributed to the death or any accident resulting in the death"; 
  5. And finally, "any other facts which are relevant to the circumstances of the death."
The immediate cause of the accident seems tolerably well established. The driver of a collosal vehicle lost consciousness, losing control, tragically slaying six people in the middle of Glasgow on the 22nd of December 2014. But it is the legislation's emphasis on identifying systematic problems and institutional failures which has prompted the forensic analysis of Mr Clarke's medical history, and his failures to disclose these to Council authorities in seeking employment, and to the licensing authorities when in employment. 

Reading between the lines, Lesley Thomson's questions should not be understood trying only to pin the blame on the driver. The Solicitor General is trying to help the court illuminate and identify structural problems, and those opportunities which may have been missed - by the Council, by the DVLA, and indeed, by Mr Clarke himself -  to pre-empt and prevent this tragedy. An FAI isn't just a day in court. 

Its goal isn't - primarily - to give the families of those who have been slain the satisfaction of seeing the circumstances of their kin's deaths publicly explored. In principle, their purpose is more utilitarian - and perhaps more useful. What went wrong? What could we do differently? Let's look at these events critically. What lessons does a careful reading of the evidence suggest to us? WHat weaknesses in our procedures has it identified? These questions are now beginning to crystalise in the court on the south bank of the Clyde. 

Could additional safeguards be built into the system for recruting and monitoring heavy goods drivers? The answers to these questions may be unsatisfactory -- sometimes human systems fail. Sometimes little else could have been done to prevent ghastly things happening. Sometimes a sheriff can spot substantial problems -- and give our public authorities a useful steer in remedying them. But  in the torrent of scorn now engulfing Mr Clarke, and his mistakes, let's not forget that fatal accident inquiries are not criminal courts. Let's not forget what this trial is really all about.

4 August 2015

"Left, left, left, left, left..."

A canny friend of mine recently asked me a question which has got me thinking. "Why is it," he wondered, "that Scotland has so many newspaper columnists who are not left wing, but who incessantly slag off the SNP for not really being left wing?"

He's right. The logic is mad. Such a critique would make perfect sense from the hard left. The Scottish National Party are social democrats. They maintain that a compromise with market forces is possible, but contend that political power should be leveraged to intervene and mitigate the perverse consequences of those markets. For the impatient democratic socialist, this will seem like a milquetoast regimen. Feeble, deluded about the evils of capitalism, delusional about the ability of the state to effectively intervene within a capitalist economic model, marginalising and misdirecting the political agency of confrontational class politics. These are old ideological battles. Agree or disagree with the arguments - the SNP is clearly open to such a left-facing critique. 

But to hear it articulated again and again from centrists, the soft centre-left, the right and the centre-right, seems barking. "Why won't you embrace a policy platform which is further away from my own political preferences, so I can disapprove of you and condemn you properly as an odious Corbynite sect?" "Why don't you adopt policy solutions of which I and 'middle Scotland' would disapprove?"

This strange tendency was perfectly embodied by Brian Monteith's column in the Scotsman yesterday. Monteith, a former Tory MSP, is not left wing. He presumably supports Osborne's spending cuts. Presumably, he welcomes the idea of a smaller state, cutting public services, and all the cognate consequences of these policy choices. While the question of resources is - to a limited extent - separable from the performance of our public services, it is pretty rich to hear a Tory sympathiser bitch about the logical consequences of cross-departmental spending cuts. Doing more with less is the public policy wisdom of the numpty. You almost always tend to do less with less. Quod erat demonstrandum. 

The Herald's David Torrance - whose critical sensibilities and muleish, contrary attitude I broadly approve of - has a fine line in these kind of articles. Although often dismissed as a Tory - David understands himself as a creature of the centre left. Let's take him at his word. But even embracing his own self-diagnosis -- why does it seem to niggle him so much to find the SNP more closely aligned with his own declared preferences, than the far-left perspective which would make many of his criticisms intelligible? I'm bemused.

A personal example illustrates the strangeness of right-wingers' and centrists' bashing of the SNP from the left. As regular readers of the blog will know, I am significantly more preoccupied by questions of individual freedom and a liberal politics than most Scottish Nationalists, and certainly than the Scottish government. I don't agree with the SNP's more authoritarian justice policies. I find the party's commitment to fundamental rights to be a bit shakier than it ought to be -- though I have been hearted by recent rhetoric in defence of the Human Rights Act.  But it would be perverse to slag off these promising developments which draw the party hierarchy closer to my own convictions, by sneering that the SNP's occasional flashes of illiberal communitarianism are half-baked and less than thoroughgoing. "Call that tyranny? This is tyranny."  Though this is precisely the logic of the party's critics on the centre-right and left. 

Is it simply rankling at perceived hypocrisy? "You talk a good game, but, my Nationalist friend, you are a toom tabard." Perhaps. But the breadth and depth of this critique seems to me to go further than simply reflecting an intolerance for sleekit political rhetoric which successfully gestures left and governs centre-left. This theme seems to have become a niggling preoccupation, returned to again and again, in column after column. I didn't have a decent or convincing answer for my friend. It perplexes.

26 July 2015

Be critical, have patience

If you are serious about securing Scottish independence, beware of passion. Beware of the unselfcritical and the impatient. Beware projection. Beware the thought that other people think as you think. Be suspicious of your motives. Test your claims. Follow the evidence. 

Beware those who see the defeat of the Yes campaign as entirely the fault of other people. Beware those who point an accusing finger only at Project Fear and a biased media, and who have nothing to say about where Yes Scotland and the White Paper went wrong. Beware those who can't begin to understand why people voted No. Beware those who see the Scots as credulous, taken in, but now smarting from buyer's remorse. Beware those who believe it was only the Vow what won it. 

Beware of those who behave like a drowning man, scrabbling for something -- anything -- to justify a second referendum. Beware of those who think they speak for a pro-indy majority which marches only in their imaginations.  Beware of those who still refuse to recognise that only a single poll in the entire campaign ever put Yes - very marginally - ahead. Beware those who will not see that no poll has shown a sustained or substantial majority for independence since. If you seriously thought we were going to carry the day on the 18th of September, beware your own judgement. Have a healthy skepticism. Question the limits of your social circle. Learn its lessons. 

Beware the activists who told you the Yes vote in their constituencies was all sewn up, and who stood, crestfallen, when dawn rose on the 19th of September, with their local campaign trailing miles behind. Beware those living in areas which voted Yes, who seem indifferent to the fact that the majority of the country did not. Beware those whose enthusiasm for a second indyref seems unconnected to any evidence that the campaign is actually winnable. 

Beware those who see the 2015 election result as firing another starter's gun. Beware those who see the election of 56 SNP MPs as a referendum proxy. Beware those indifferent to the 160,000 lost votes separating the 2014 and 2015 results. Beware the self-deceptive logic of "one last heave". Beware those who want another referendum to recall a feeling, to recall hope, to recall purpose, but with no analysis of what went wrong, or what has changed. Beware old men in a hurry.

If you are serious about securing Scottish independence, you must beware all these things. If you are serious about accomplishing this task, you must beware squandering our best, last chance to realise it. You must have patience. A second referendum cannot be held to make people feel better. Too many generations of my family, and many families in this country, have campaigned for this old idea for it to be consigned under the sod forever in a doomed spasm of feeling unsupported by any analysis. 

There's no point in igniting a false hope - only to extinguish it forever. There is nothing noble about destroying the cause you care about through soft-headedness. I can understand your anger. I can understand your frustrations. I can understand the mounting despair you feel at this majority Tory government and its plans for the country. But sentimentality is self-indulgence. A second referendum cannot be for the true believers who are already on side, but must speak to those whose minds have changed, for those who can be persuaded. It cannot be an act of sheer frustration -- however understandable that feeling may be.  

Nobody has even begun to explain to me what has changed since the autumn of last year to transform disaster into triumph. Nobody has explained how the generational gap has or could be addressed. Nobody has explained to me how the sceptical people of Clackmannanshire and Aberdeenshire and Inverness and Argyll have been won over. Nobody has produced, or can produce, any evidence of any kind that there has been a decisive shift in constitutional opinion. 

My only operating principle here is this: if another independence referendum is to be held, it must be won. A second referendum must not be held unless it is clear that it is winnable. By all means - let's have a reasoned argument about strategy. About what to be about in the meanwhile. Through the encircling political gloom - there are reasons to be cheerful. The idea of Scottish independence is mainstream for the first time since 1707. The 2014 referendum campaign has not stabilised the Union. It has not provided a decisive answer to Scotland's separatists. The Smith Commission compromise and Mundell's Scotland Bill look incapable of doing so. The No campaign has not persuaded Scots that we are "better together" for the next ten years, or the next twenty or thirty years. 

But cool your jets. It is time for hard heads. Time for reflection on what went right and what went wrong last September. My plea to you is this. Always demand evidence. Hold even the most sincere, the most touching and deeply-held emotional appeals in suspicion.  Be critical. And always, always -- have patience.