28 February 2010

Scottish women in power...

For those of you who don't indulge in an evangelical Sabbath and are in want of reading material, here is an interesting study on the 'Impact of Women Ministers in Post-Devolution Scotland 1999 - 2007'. Published by the Active Learning Centre, the research is based on qualitative data gathered in semi-structured interviews with eight former female Scottish ministers about their experiences of gender during their tenure. This group apparently included some familiar faces still enthroned on Holyrood's red benches, including Wendy Alexander and Cathy Jamieson. A very select group of insiders then - with significant claims to be listened to. For them, the institutions of Scottish politics are lived through personal experience - rather than the distant reflection which reading a newspaper enforces or speculating outside St Andrew's House about what is going on in its corridors and chambers. I've not had the chance to make a careful journey through the document's pages, nor to interrogate its claims. That said, gender in Scotland remains improbably under-researched and is marked by the absence of critical reflection on its place in our public and private lives. Scottish accounts of gender norms are invariably partial, congealed into unedifying simplicities which are disposed to ignore the vagaries of class and geographic divisions in what David McCrone once excellently described as Scotland's organisation around its "city-states". Anything which contributes to a more sagacious, more honest reflection of the continuing structuring role of gender in our public life is a welcome contribution. I for one am heartily tired of hearing rooms of men insist that we're all post-gender now.

27 February 2010

Douglas the Digital Aye-Aye goes to Strathclyde...

Coincidentally, I was recently reading a post over at Andrew Sullivan’s blog at the Atlantic entitled “Pacifism is Objectively Pro-Fascist”. The title quotes an inflammatory suggestion made by George Orwell in the essay Pacifism and the War. Sullivan recants his own entanglement with such thinking in the context of American military adventures in Iraq. Moreover, he goes on to quote Orwell’s own subsequent rejection of the idea in favourable terms. Introducing a note of subjectivity, the second excerpt emphasises the primary importance of honesty which should check any honest inquisitor before he lodges easy accusations that pacificists are really pro-Fascist, or that those against an invasion of Iraq were objectively pro-Saddam. Argues Orwell, motives matter.

‘The same propaganda tricks are to be found almost everywhere. It would take many pages of this paper merely to classify them, but here I draw attention to one very widespread controversial habit: disregard of an opponent’s motives. The key-word here is ‘objectively”. We are told that it is only people's objective actions that matter, and their subjective feelings are of no importance. Thus pacifists, by obstructing the war effort, are “objectively” aiding the Nazis; and therefore the fact that they may be personally hostile to Fascism is irrelevant. I have been guilty of saying this myself more than once.


In my opinion a few pacifists are inwardly pro-Nazi, and extremist left-wing parties will inevitably contain Fascist spies. The important thing is to discover which individuals are honest and which are not, and the usual blanket accusation merely makes this more difficult. The atmosphere of hatred in which controversy is conducted blinds people to considerations of this kind. To admit that an opponent might be both honest and intelligent is felt to be intolerable. It is more immediately satisfying to shout that he is a fool or a scoundrel, or both, than to find out what he is really like.’


These remarks remained aptly ensconced in the back of my mind as I flicked through the politics pages in the Herald, only to find similar rhetoric emanating from the Scottish Labour Party. While the headline ‘Labour election warning over SNP’ hardly smelled of news or novelty at all, below, we find that the Chief Election Programmer is installing insidious software on the empty hardrives of the Labour Student drones at Strathclyde University. (Needless to say, I await Yousuf’s relaying of this data with mounting anticipation.) Since he is speaking to the educated young, wee Dougie Alexander MP will touch on the (presumably awkward) question of Labour’s position on paying for university education “At the last election, Alex Salmond asked students to invest their future in him, but in government he has refused to invest in theirs,” Mr Alexander will declare. No doubt Douglas the Digital Aye-Aye will declaim all of this with the only face he has got – a twitchily straight one – but surely this is improbable stuff from the party who actually opposed the abolition of the graduate endowment. Certainly, spank Salmond and Shoal for not realising their full policy goal of scratching student debt. That said, I don’t see how anyone with a pinch of irony could take a telling from this long-fingered Labour lemur on how to facilitate individuals of whatever background to obtain an education in one of the country's fine institutions of higher learning.



The particular anticipatory quote furnishing the headline, however, relates back to my sense of serendipity having encountered the Orwell quotation. ‘Votes for Alex Salmond’s SNP in May will strengthen David Cameron’s chances of becoming Prime Minister’, Alexander will conclude. Re-orientate that a snatch, and it can be more directly, more honestly expressed in parallel to Orwell’s formulation - the argument that voting SNP is objectively pro-Tory. This argument may be readily extended to encapsulate pretty much everyone – Liberal Democrats, Greens, Scottish Socialist Party, the Dungeons Death and Taxes Party. Of all of them, this sort of discourse must particularly rile the Liberal Democrats – speaking at a UK wide level. After all, if they’re to inch towards influence and power, the two-party frame of electoral reference has to change. The metaphor must shift from the flipping of a coin, with an inevitable falling on one side or another, to a more diversified account of democracy and decision-making that does not fetishise the executive centre and the incessant spiritualising of the prime ministerial position. Of late, reading the London media has been like been sitting through a particularly tedious Shakespeare play - for God’s sake, let us sit upon the ground, And tell sad stories of the death of kings -

26 February 2010

The scandal of Scottish HIV exposure prosecutions...

When it was reported that Mark Devereaux had plead guilty to four charges of culpable and reckless conduct in the High Court in Dumbarton, I wrote about some of the implications and justification for Scots criminalisation of HIV transmission. Let’s be clear on our facts. Devereaux did not tell four of his sexual partners that he had been diagnosed with the Human Immunodeficiency Virus. Reportedly, he had been in long term relationships with two of these women. One of the women with whom Devereaux had an extended relationship was herself diagnosed as HIV positive as a result of their unprotected sex. The three other women were not. Yet four charges were pressed against Devereaux for culpable and reckless conduct. The three for mere exposure, as opposed to reckless transmission of HIV despite personal knowledge of that status, are the first such prosecutions in the United Kingdom. He has now been sentenced.

My first post on this subject asked a number of questions, explored a number of the issues. How do we construct harm? How do we select what harms are punishable by our criminal law? By contrast, this post makes a more specific argument. I believe that despite his strongly unattractive conduct, his lies, the emotional distress he has certainly caused a number of people – that it is absurd to prosecute a man for “exposing others” – and notice how passively this constructs female sexuality – to HIV. On transmission, my mind is less made up. However, as I commented earlier, the present legal position means that it is at least theoretically illegal for those who are HIV positive to engage in procreative sex in Scotland. This is scandalous. Finally, partly informed by the foregoing, sentencing the miserable Mark Devereaux to 10 years in prison is palpably excessive. Through his legal agents, I hope he ventures to lodge an appeal against the sentence handed down by the Court this month.


The Scottish legal magazine the Firm have Lord Pentland’s full sentencing statement of the 25th of February. They don’t begin well, confirming that “A man has been sentenced to ten years in jail after embarking on a series of sexual relations whilst in the knowledge that sexual contact would pass on the HIV infection to his partners” (my emphasis). This, as the facts of the case bear out, is total bunkum. Devereaux pled guilty to four charges of culpable and reckless conduct – three of which were prosecutions for “exposure”, while only one woman is now HIV positive as a result of Devereaux’s actions. We’re dealing with risk and potentialities here, not unavoidable necessities implied by the Firm’s would. Here is what Lord Pentland had to say:



“Mark Richard Devereaux, you have pled guilty to four charges of culpable and reckless conduct arising from a prolonged and sustained course of utterly irresponsible, dangerous and selfish sexual behaviour on your part. In short, knowing full well for many years that you had been infected with the Human Immunodeficiency Virus, you repeatedly and regularly had sexual intercourse with a number of women, without taking any steps to protect them against the risk that you would thereby transmit the virus to them. You were well aware from the medical advice given to you that you were at risk of infecting any sexual partner if you had unprotected intercourse, but you chose not to inform any of your partners that you had the virus and you chose not to use a condom or take any precautions.

You were engaged in long-term relationships with two of your victims and you infected one of these women with the virus. She decided to have an abortion when she discovered that she was infected. When the other of your long-term partners found your medication at one stage, you denied that it was for HIV and continued to have unprotected sex with her.

Those of your victims whom you did not infect were nonetheless each exposed to a considerable risk of contracting the virus. It seems to me that you callously and cruelly betrayed the trust placed in you by each of your partners and that you deceived them for your own self-centred reasons. Each of your victims has been devastated by these events. The person whom you infected will have to live for the remainder of her life with the knowledge that she now has the virus. She will require to have regular medical treatment and to take regular medication. She may suffer further consequences and must live with the uncertainty of that hanging over her. The charge in relation to her includes the serious aggravation that her life has been endangered. The others have all suffered great distress and anxiety on learning the truth about you and your deceitful and reprehensible conduct towards them.

I have taken full account of all that has been said on your behalf by Mr. Renucci and of the contents of the Social Enquiry Report. I accept that you have a good employment record and that you have no analogous criminal convictions. I am willing to accept, to some degree, that you pushed the reality of matters to the back of your mind, but this cannot in any sense excuse the highly irresponsible nature of your behaviour.

In my opinion, your persistent failure to be open about your condition and your prolonged insistence on having unprotected sex with a number of women over a period of several years shows a gross level of recklessness on your part and a total indifference to the welfare of those with whom you had intimate relations. In these circumstances, a substantial custodial sentence must be imposed. Had it not been for your guilty plea tendered at an early stage, I would have sentenced you to a term of thirteen years imprisonment.

You are entitled, as a matter of law, to a discount to reflect the fact that you pled guilty. In selecting the discount, I note that you made full admissions to the police when they interviewed you in July 2009. It is accordingly difficult to see that you ever had any possible defence to the charges. I accept, however, for the reasons set out by your counsel that your early admission of guilt had some utilitarian value. In the whole circumstances, I shall exercise the discretion conferred on me by reducing the sentence to one of ten years imprisonment. This is a cumulative sentence imposed in respect of all four charges. I shall backdate that sentence to
19 January 2010 since when you have been in custody in relation to this matter. I have already certified you for the purposes of the Sexual Offences Act 2003. The Clerk of Court will inform you in writing of the period during which the notification requirements will apply.”


Flatly, I’m appalled that the Court considers 13 years appropriate punishment for the charges as libelled, despite the reduced quantum for formal contrition and admission of fault. Moreover, a single ‘cumulative’ sentence is a suspicious beast – how does it break down? One year a piece for the exposure cases, ten for transmission? Giovanni Mola, whose case I discussed in my previous remarks, received nine years imprisonment for reckless and culpable transmission. He pled not guilty, however, and thus received no reduction for tendering a guilty plea. Given that comparator, it is difficult to tease out exactly how the case broke down in Lord Pentland’s mind. It is fair to argue that the exposure offences, which I’m particularly concerned with here, were tabulated to at least one year apiece.


Which brings us on to the nature of the conduct justifying such an imposition of penalty. Detective Inspector Martin Dunn, of Grampian Police, is quoted elsewhere remarking (fairly in the first sentence) that: “Devereaux acted with almost unbelievable irresponsibility and recklessness.” The Inspectors then embroiders this remark with another: “He has blighted the lives of all the women he had relationships with since being diagnosed”. I fail to see how this is true with respect to the three cases of culpable and reckless exposure. Like a tedious bore with his cyclically recurring ‘cancer-scare’ story, who relates how the queer, painless lump that put his world all out of joint and prompted melancholy reflections on his own morality was merely a benign cyst - yet still petitions for our interest and confirmation of his victim status. I don’t mean to imply that this whole process can have been easy for any of the women by any measure. I’m sure much upset and alarm resulted when Devereaux’s sexual partners realised that their past conduct may have had consequences which are unknown and challenging. But don’t let’s forget – only one of these women have any lasting physical repercussions. So why talk about them as if all four cases were fundamentally the same? Why the justifying innuendo, the implausible claims to permanent injury? “The others have all suffered great distress and anxiety on learning the truth about you and your deceitful and reprehensible conduct towards them”, said Lord Pentland. True enough, I’m sure. But hardly the stuff that state prosecutions are justified by, is it?


How many individuals sexually betray their fidelity to a partner – and generate analogous care and stress? How many parents inflict their neuroses on their guileless children to their permanent psychological injury and the disfigurement of their life’s potential? How many employers callously and with malice a’forethought, make their workforces redundant but luxuriate in inflated bonuses, to the workers’ significant anxiety, distress and manifest suffering? The point about all of this is not to collapse any of these claims to have suffered, to have been the victim of another. Rather, they highlight the crucial point – the criminal law doesn’t exist to salve hurt feelings or correct all the small and major injustices which we all inflict on one another. Its causes of action are generally and ought to be far narrower than the manifold capacity of humankind to err and sin. There but by the Grace of God, you might argue, for these three women, left unharmed. No thanks to Devereaux, certainly, but smiling Fortune and a bit of luck. Yet this isn’t just about one man, his lies, his breaches of trust, his scurrying and contemptible character. We operate within an ideology of legal rationality, where Devereaux the individual is separable from Devereaux the legal category, the formal authority, the basis for legal reasoning in the future. This second Devereaux concerns me acutely – the prosecution and punishment of HIV exposure and the criminalisation of the sex lives a section of the community should concern us all. Particularly with the tabloids commentating at a shrill fever pitch, full of passionate intensity.

25 February 2010

Thomas Jefferson on Scottish Independence...

As Scottish nationalists come, I’m of a Jeffersonian inclination. Politically, “I like the dreams of the future better than the history of the past”. To quote Thomas Jefferson again, “the earth belongs in usufruct to the living”. Change is within our power. We choose to tend our garden or to leave it to seed. We choose not to uproot the savage plants which an entanglement with the British state cultivates – its trident missiles, its misadventures and militarism, the foreign wars, the detention of children. We consent, we culpably submit, as the guilty shadows of these thorns stifle alternative political possibilities. Scotland contributes to the atlas of despair written across Gordon Brown’s leathery phizog - ennui, weariness, inevitability. And Scottish Labour have the gall to beseech and lecture us, in the bowels of Christ, about how they are the only party concerned with 'fairness' and 'social justice'.

I’m not suggesting in any respect that the political tendencies of an independent
Scotland are given. Don’t lets delude ourselves with fruity tales of our virtue, blind to our vices. The projects of peace, of a just society are the work of many hands. Justice isn’t flown up to heaven forever – we have to shamelessly reach up her skirt and drag her home with us, realising that justice' lofty goals mean nothing unless we put her wisdom to work in small places. These are just some of the issues with which we must contend when thinking about Scottish independence. Such thoughts and considerations may be particularly in mind today, since the Scottish Government published its consultation on the draft Referendum (Scotland) Bill this morning, setting out the SNP's proposals for a plebiscite on Scotland's constitutional future.

The document is not simply independence or bust. Rather, it provides the framework for the conduct of a referendum, giving the people their say on two proposals. Firstly, extension of the powers of Holyrood, shy of total independence. Secondly, the whole kit and caboodle. The consultation partly concerns how the first question should be framed - should it invite a public determination on some sort of "full devolution" - or alternatively, should the beloved Calman report be dusted off and submitted to popular acclamation (or declamation)? Moreover, in an echo of the voting which preceded the Scotland Act of 1998, the Government propose asking two down the line questions, to be resolved by simple majority - and proposes that the public should consider voting "yes/yes". The consultation period will run for 9 weeks. Here is Alex Salmond talking to the document last week. I commend the motion to the House!



Update

By way of a wee amendment to this post, as well as having adjusted the foregoing text just a little since this morning, here is the man again, talking to the Referendum (Scotland) Bill at its launch earlier today...

24 February 2010

Death by numbers...

Must scoot out early into the rosy-fingered dawn, so I thought I’d soften you all up with some graphs constructed from statistics released yesterday in the Scottish Government’s Homicide in Scotland 08/09 numbers. These sort of statistics are important – as they capture quantitatively that which escapes ordinary experience and gives the lie to impressionistic accounting about the social prevalence of murder and the modal characteristics of imaginary victims. These concrete numbers give us something far more substantial to go on. Do click on the graphs themselves for a more focussed view. Later on, I'll be returning to the publication and examining it in a little more detail.

Firstly, I present Figure 1, which tracks the total number of recorded victims of homicide in Scotland since 1999-00.




Secondly, Figure 2., which illustrates the overall division of killings by gender of the victim in the last half-decade, 2004/05 - 2008/09.




Thirdly, for Figure 3. I've taken the correlated figures about the age of the victim and presented that alongside the total homicides recorded.




Finally, in Figure 4, I focus on the latest year of record, 2008/09. Alongside total figures for that year, divided along gender lines, I've also presented how the numbers breakdown in respect of gender and age of victim.



23 February 2010

Catechism of Cliché: Faith Edition

Leaf through a deck. If you can, spot the ‘religion card’. Is it the winning Ace of Hearts? Or perhaps the funereal Ace of Spades. It may be that it occupies a more median position – the inconspicuous five of diamonds perhaps – in dull echo of the Five Holy Wounds of Christ. The joker in the pack, a laughing God? Alternatively, it occurred to me that Murphy may be drawing his playing cards from a tarot deck. Prefigurations of the Hanged Man, or the smoky incantation of a political Magician in mind? Alas, it is none of these. Rather it is an entry for the much-neglected Catechism of Cliché, prompted (presumably) by the Scotland Office trailing in the Scotsman anticipatory sections of a speech to be delivered by Jim Murphy on the subject of ‘faith’ aimed at that happy, homogeneous category styled Scotland's ‘values voters’. Even more sociologically curiously, the Herald talks of ‘faith-based voters’. Presumably, the category doesn’t include Luciferian fellow citizens, or all those Jedis who made an appearance in the 2001 Census. These definitional anxieties aside, claim the Scotsman, Murphy is 'playing the religion card' - presumably earnestly hoping that it will be party political trump. Given his lean, abstemious look, I’d never have taken Murphy for a louche gambling type. Being a pervasive amoralist and recidivistic heretic myself, I’m sure Murphy isn’t singing sweetly for me. Here are the vaulting choral high notes, as quoted in the Hootsmon:


“In the US, faith has long played a central part in politics – not surprising for a country where 60 per cent of people say that God plays an important part in their lives. But it's wrong to think that it plays no role in British politics ...

That the Bible gave “the Labour movement the intellectual legitimacy to challenge the old orders”

He will say: “As David said in Psalm 9, ‘the Lord is a stronghold for the oppressed, a stronghold in times of trouble’.”


Murphy will quote – shock horror – Keir Hardie to the effect that…

“I have said both in writing and on the platform many times that the impetus which drove me first into the Labour movement, and the inspiration which has carried me on it, has been derived more from the teachings of Jesus of Nazareth than from all other sources combined.”

In a maximally banal discourse on the nature of family in contemporary Britain, Jim muses that...

“Family is the most important thing in our country… We love our family more than anything else. I am convinced that, like faith, family is another force for good. I celebrate marriage and family life, and while it's wrong for government to financially incentivise one family type over another, I am convinced family is the glue which hold our communities and society together.”

Because we all know nothing is more rousing or rhetorically affecting than the word ‘incentivise’ properly deployed… Finally, argue the Hootsmon, in an “apparent broadside against the Nationalists, Mr Murphy will link patriotism and support for the UK with faith” … which sounds pretty grim. However, the quote presented seems unclear to me:



“I am also convinced that people, and values voters in particular, are sick of others talking down our country … Yes, they know we have problems, but we love our country.”

On this last point, context is all and context we don’t have. Blind-baked, the remark seems to relate and refute David Cameron’s ‘broken society’ refrain. This interpretation would chime with Murphy’s declared intention to neglect the SNP during the General Election and focus on the Tories. Then again, perhaps I’m overestimating the conscientious pangs which Labour hypocrites might feel in accusing the SNP of ‘talking down Scotland’ – which is, after all, official Labour policy supported by the stratagems of misinformation and secrecy.


The Scotsman interpretation does raise – or at least suggest – one interesting point about Christians, Scottish Nationalism and the duty to submit to civil authorities. I’m not soaked in the nuanced, underwriting theology. The complexities escape me. I suspect, that we can probably distinguish (as a conscientious, theological Christian) between obeying the civil authorities as constituted while agitating for a change in the composition of those authorities. It seems a stretch of the Biblical imagination to suggest that Murphy is implying that the creed for a new, divine Unionism is inspired by Matthew’s transcription of the Christly admonition to “Render to Caesar the things that are Caesar’s” (Matthew 22:21) . Then again, there are other echoes elsewhere in the scriptures. “Submit yourselves for the Lord’s sake to every human institution”, commands 1 Peter 2:13. Or my favourite Damascene fruitcake, Paul, in his Epistle to the Romans wrote “Let every person be in subjection to the governing authorities. For there is no authority except from God, and those which exist are established by God. Therefore he who resists authority has opposed the ordinance of God; and they who have opposed will receive condemnation upon themselves.” (Romans 13:1-2) Perhaps this is a little abstruse and abstracted from the earthy politics of the thing to give pious Christians pause about Scottish Nationalism or wed them in perpetuity to British structures of civil authority. It would be an interesting dynamic to explore.

22 February 2010

Calman Trouble Vol. 42

Monday morning’s vengeful fug has set in (along with a dusting of spring snow, to put me in festive fettle) and the afternoon promises to be busy. Well knowing that all my readers are great enthusiasts for the cavilling detail of the United Kingdom’s constitutional structure and implicated funding mechanisms, I thought I’d send you all scurrying off to peruse a report written by Professors Drew Scott and Andrew Hughes-Hallett, on “The UK Government’s proposals for the future financing of devolved government in Scotland: an economic assessment”.

Published on the Reform Scotland website, the document “offers a critical appraisal of the proposals published by the UK Government in November 2009 to reform the arrangements for funding the devolved administration in Scotland.” Or to make the link more obvious, the funding proposals emanating from the Calman Commission on Scottish Devolution. Professor Scott is employed in the University of Edinburgh’s School of Law but is an economist by training, while Professor Hughes-Hallett is a macro-economist who was previously based in Scotland but now works at George Mason University in Virginia and is a member of the Scottish Government’s Council of Economic Advisors. Even if, like me, you are not an economist, the paper is broadly comprehensible. The sharpness of its critique has generated some gum-tightening headlines for enthusiastic Unionists (wherever they might be hiding), including "Calman commission reform will cause ‘financial black hole’" from the Times.

21 February 2010

MacAskill on “threatening, alarming and distressing behaviour”

‘New law to tackle online stalkers’, tells the BBC banner. Kenny MacAskill, the SNP’s Justice Secretary and premier goldfish orator, has used his Sunday to announce his plans to staple an amendment to the increasingly heavy-laden Criminal Justice and Licensing Bill. Despite the press emphasis on the online, the government press release deletes the proposed offence’s purely digital quality, promising an offence of “threatening, alarming and distressing behaviour” and giving us a foretaste of the legislative language by declaiming that ‘it is an offence for a person to behave in such a manner that a reasonable person would be likely to fear for the safety of any person on account of the behaviour, or be alarmed or distressed by the behaviour’. Clear as mud. I thought it might be helpful, given the obscurity of much of this, to outline in brief just where we are at the moment in Scotland in terms of legal prevention and regulation of harassing behaviour. In this context, hopefully we’ll furnish an answer to Subrosa’s question"is this a case of employing a legal sledgehammer to flatten an innocent public policy peanut?"

The beginning of wisdom is the definition of terms, argued Socrates. There is, perhaps unsurprisingly, a rather imprecise received wisdom of what precisely constitutes unlawful stalking or harassment in Scots law. There is no offence simpliciter of either. This is in marked contrast to
England, where the Protection from Harassment Act 1997 defines harassment as an offence. The same Act provides that in Scotland, conduct constituting harassment - ‘on at least two occasions’ - gives rise to a civil action, on which basis damages can be awarded, interdict granted, or a non-harassment order made. The harassed person will pursue this action themselves, rather than a criminal prosecution pursued by procurators fiscal. As the name suggests, this order requires the defender to refrain from harassing conduct in relation to the pursuer for as long as the order requires (this can be of indeterminate applicability). Section 9 of the 1997 Act makes breach of this civil order a criminal offence in Scotland. If indicted, the harasser-in-breach can be sentenced to 5 years imprisonment, a fine or both. If convicted in summary proceedings before judge alone, penalties include imprisonment for not more than six months, a fine, or both. It should be noted (under section 11 of the 1997 Act) that Scottish prosecutors can also seek such a non-harassment order, but only after an accused person has been found guilty of another offence involving harassing behaviour. Similar provisions on court orders and the penalty for their breach obtain in England.


The keynote is that harassment, per se, isn’t a crime known to Scots Law. That is not to say, however, that conduct commonsensically labelled stalking or harassing will be legal. Perhaps predictably, here as elsewhere, breach of the peace covers a multitude of legislative sins. With a lick of caution, and a stress on the procedural quality of my remarks, it is worth mentioning that Universality of Cheese blogger, Mark MacLachlan, was recently charged with breach of the peace ostensibly in relation to e-mails sent to a member of the Scottish Government. That case being live, I shall leave it at that. There are also other common law offences respecting threats, distinct from breaching the peace. Finally, surprisingly, Anti-Social Behaviour Orders may be relevant here, though I’ve no notion of how often, if at all, they’ve been imposed in circumstances which might loosely be characterised as ‘stalking’ or ‘harassment’. As you can see, hardly a seamless web of ordered rationality – just the usual moth-bitten tapestry of tangled knots and clumps which characterise Scotland’s criminal law.


Justifying the new provision, the Scottish Government cite a recent(ish) judgement of the High Court of Justiciary (handed down on the 22nd of July 2009, mind you. Even by Governmental standards, this is hardly post-haste…) in Harris v. H.M. Advocate. Concerned with breach of the peace, the width of its definition and a limiting principle of publicity – apparently this case has put flighty Kenny’s raw-edged nerves all in a’-tingle. It is suggested that applying a narrowed principle of publicity to charges of breach of the peace may exclude conduct in the private sphere which might be viewed as culpable and harassing. I don’t have time to go into the judgement itself, nor to critically scrutinise the Government’s use of it to justify new provisions. If you are interested yourselves, it can be consulted in full here. For myself, anything which hollows out breach of the peace and clarifies what is and is not illegal tends to the good. That said, I’m no fan of rampant criminalisation. A clear act of oppression is no more virtuous than a cloudy exercise in arbitrariness. Even the limited section of legislative text which MacAskill appears to be quoting demonstrates the hand-wringing quality of these legislative fudges – where you have a particular type of offence in mind, but linguistic capture isn’t easy. It may be that we find this discretionary mode of law acceptable – we trust in prosecutors not to go out of their way to pursue actions contrary to our contingent understandings of the law’s spirit, trusting that courts will apply it equitably in particular cases. Its important to realise, however, that by enacting such open-textured clauses of legislation, we’re effectively giving these public officers discretionary powers. If there is an iron-law of human affairs, it seems to be this - anticipate unintended consequences...

19 February 2010

Tory comedies of innocence...

The Bouphonia was a strange Attic festival, a Comedy of Innocence. An ox was sacrificed to Zeus at the Acropolis. Despite the public character of this ritual, he who wielded the knife or swung the axe engaged in a blameworthy, murderous deed to Athenian eyes. Expiating this wrong, the fatal weapon was taken to a court, where it was put on trial while its human accomplices denied responsibility. Ultimately, the blade itself was charged with having inflicted death, either being acquitted or tossed into the blue Mediterranean in forfeiture for its heinous act of ox-murder. This curious, Classical vignette occurred to me as I glanced through Tory and Labour amendments to the Criminal Justice and Licensing Bill, promising prison for all knife carriers. Both rituals concern themselves with responsibility and innocence, with blame and with victims. While the absurd qualities of the Greek enactment are obvious, and we can hear its ironic laughter, our contemporary sense of the complexities of responsibility answer in a more muted voice.


Labour want to install a presumption that the blade earn its bearer at least 6 months banged up with their chamber pots. (Although some Leithite wags ironise around the label of 'mandatory'.) The Swine Pursuivant, Richard Baker, cannot be terrifically chuffed that Iain Gray appears to have decided to nab his crony’s portfolio and is fronting this piece of law-and-order bunkum personally. The Tories, not to be outdone, bettered (sic) Labour’s penal promises, Baillie Bill Aitken suggesting that a two year period spent in jail would be just the thing for carrying knives.


Quoth the Baillie, “Labour's plans for a six month tariff for carrying a knife, which after early release would mean little more than a few weeks inside, are woefully inadequate … If you go out with a knife, you'll be going inside. Labour's eight years of failure paved the way for the SNP's soft-touch Scotland. We don't have any more time to waste and that is why I will be tabling our own amendment to the Bill.” This is the 'soft-touch Scotland' whose average daily prison population has increased by 31% in the last decade. I repeat, in 1999-00 the average daily population numbered 5,975 – including those on remand, untried persons, persons convicted but awaiting sentence. For last year, that average number was 7,835 souls – or 1,860 more prisoners than just 10 years ago. In their press release, Labour reiterate an incendiary quote from John Muir. “Anyone who disregards moves to toughen the sentencing laws on knife crime”, he submits “will be seen by the public as having victims’ blood on their hands.” Although I obviously entertain significant personal sympathy for Mr Muir, whose son Damian was stabbed to death, by any standards, this is a grotesque allegation. After all, we know that prison works, don’t we? That it does not contribute to a brutalisation of young men. That it affords its lesson and releases reformed souls.


This is pandering politics of the vengeful rump, which refuses to engage with the questions we are increasingly forced to engage with. The prison population is too high, unsustainable, unethical. Although I find the cost arguments among the least compelling reasons not to send folk to chokey – they are undeniable. Are we really willing to justify the economic expenditure and the social costs of vaulting rates of imprisonment, as a cathartic release? In a grand recent post by Ian Hamilton QC, entitled “Donald Dewar, Nicola Sturgeon and the wild, wild weemin”, profoundly relevant issues are explored. Highlighting the intellectual laziness of the ‘bang ‘em up’ case, Hamilton draws on his own shrieval experience to illuminate the brute reality of judicial decision-making – and the real limitations which even the wild-eyed exponents of incarceration Scotland must contend with. I find it infinitely depressing that the vision Scottish Labour and the Tories have for our nation is a panopticon, with a profusion of cells and of prisoners. I wanted to quote this section of Ian Hamilton’s late piece in particular.


“Nicola need have no fear of this mob. (Strange how everyone calls Nicola by her first name and no one knows who Mr Gray is.) In equiperating knife crime with fraud Mr Gray showed a lamentable lack of common sense. There is a world of difference between them. Crimes against the person with a deadly weapon require a prison sentence. Crimes of dishonesty are in a different category. If there is a breach of trust, if the sum is large, if the crime has been previously committed are relevant matters as is the length of time over which the crime took place. In these circumstances (and I am not discussing this case which is still sub judice) the sheriff needs all the help he can get. In asking for a non custodial sentence an MSP is pursuing government policy. Keep prison for serious crimes against the person. It costs £50,000 a year to keep someone in prison. Every penny is needed for two aircraft carriers and the son of Trident. Mr Gray should know these are Unionist priorities. If he doesn’t our sheriffs do.

I was once a sheriff and a weary job it is. I read many letters put up to me. They helped focus my mind. A sheriff is there to stand between justice and the screaming mob we saw in Holyrood, bent only on punishment. Punishment? Would that a sheriff’s job were so easy! There are so many other things to be taken into account. There are the side effects. Are there children to be considered? Will the accused lose his job? Will dependents become a burden on the State. Has there been a previous offence? Has restitution been made? What are the chances of reoffending? Will there be room in prison? The public perception of the crime comes at the very end of all these. No sheriff is there to please the public.”


Political revenge-fantasies aren’t costless. Despite John Muir’s statements (however understandable they are in his circumstance), we come to be stained in blood in ways that do not come with the direct pointedness of a knife – and its easy, fatal causality. The black pathos of rampant incarceration invades the airy irresponsibility affected by these comedians of innocence, these Tory and Labour politicians whose idea of penality is a vaulted pit, with no bottom, no costs and no consequences.

18 February 2010

On Holyrood's amoralist dialectic...

A free vote, a vote of the conscience, is a familiar if irregular feature of our political life. So familiar, in this sense, that its real significance may be lost to us. Certainly, in a brute factual sense, it is simply an unwhipped vote where in the final disposal, our deputies can lodge their votes where their spirits tend. Examples which will be familiar to you include laws regulating abortions, hunting with dogs, the death penalty – and now in Holyrood, on assisted dying. I want to suggest that we stand absolutely motionless for a moment, at slight angle to our commonplace universe, and think a little more generally about the ideas of morality and conscience implied. These concepts have enough meat on them to keep us well occupied without marching them into the public arena. But the parade has started, therefore it behoves us to follow on its heels and try to understand the dynamics involved.


First, the obvious explanation – party leaderships want to avoid collective responsibility being foisted on them for their conduct on “socially divisive issues”. This rabbit-tremor preserves the innocence and catholicity of the party structures, by very episodic disappearances of the party structure. If your particular representative votes in a way which deviates significantly from your own views – the accusation rests there. Hopefully, come election time, you won’t let the individual’s judgement get in the way of an overriding party preference. The party, after all, can’t be blamed for a dud choice. No point punishing them longitudinally, what’s done being done. We would be missing something important, however, if we exhausted our explanation at this consciously-manipulative, party-evasive level.


What strikes me as the interesting question about free votes is the principle of selection. How do issues become constructed in such a way that they are rendered exceptional, exceptional procedures to be followed in their analysis? The colonic Mike Rumbles offered one account when he justified the creation of the ad hoc ‘Health 2 Committee’ on the basis that assisted dying is a “moral” question, and thus must be handled with parliamentary kit gloves and quite separately from the ordinary, amoral order of work. Patrick Harvie rightly took him to task for the fatuousness of this distinction. Surely the whole work of politics, his argument, is dyed through with ethical implications. While I’d echo those arguments, there is another way we can approach the distinction Rumbles was relying on. It seems to me that it is not insignificant that the binary categorisation which Harvie made a brave attempt to obliterate seems to insulate the usual meat and potatoes of politics from ‘morality’. By reinforcing the exceptionalism of ethical issues in politics, justifications for the unexceptional, unethical and ordinary political choices is in turn reinforced. This theme also ravels, I’d suggest, along the familiar and problematic ‘private/public’ string. By isolating Margo’s bill and sanctioning, through special measures, the emergence of private morality into the public - powers normally exercised are rendered less problematic, less moral. They are public choices, rather than the private whim of individual members imposing their private preferences on a gormless public. It is complicated, but a dialectic of this general sort seems to me to be at work, in what might pass for simple stupidity, informing this talk of legislative ‘morality’.


The thing to bear in mind about all of this is the idea of morality or personal conscience which this discussion relies on. On some versions, this is the little firefly ensconced in head office, casting its arbitrary, subjective light. The philosopher Alasdair MacIntyre, who I’ve mentioned before in the context of this debate, styles this idea of ethics ‘emotivism’. One MSP has one preference, another uses a radically different conceptual schema and reaches the same conclusion as the first – while the third tribune rejects both theories and the conclusion reached, based on their own private fancy. This sort of groundless conscience is not, however, compatible with every version of morality. For example, if you are religious and found your views on “natural law” or some objective, cosmologically determined set of values, rooting the conscience in whimsical subjectivity is simply a misunderstanding of morality.


The primary point I wanted to distil from this is that the idea that MSPs are revealing their private conscience through voting is that the usual vocabulary of democratic influence sits less comfortably alongside. Lobbying, argumentation - constituents writing to their representatives anticipating that that representative function involves gauging, somehow, the mood of their district. There is something unnecessarily pompous about imagining Holyrood as a convocation of saints, come together to bring to light their existential musings on the quality of being in the world and handing them down to a breathless Scottish public. Don’t be dazzled by showy citations of conscience. Write to your representatives, e-mail them, telling them what you think. Be sure that you get around to it, and don’t just put it off. Be sure to pester all of the MSPs in your region. As I’ve argued before, you may benefit from a spectrum of opinion in the way a single constituency member wouldn’t permit. Finally, be sure that others will be doing so.


On Facebook, someone has got up a Support for the Scottish End of Life Assistance Bill page which at the time of publication has 623 ‘fans’ (admittedly, not the happiest description). I commend it to you.

16 February 2010

Medea *

Medea *

I recently saw Northern Broadsides' production of Euripides’ Medea, as envisioned by Tom Paulin of erstwhile Newsnicht Review fame. Although in some respects I am in sympathy with the Yorkshire-based company's broad philosophy, that sympathy may not survive the encounter with their actual material. Their production of Medea hits Scotland in March, appearing at the Citz in Glasgow from the 9th to the 13th. I wouldn’t go, unless like me you take diabolic glee in watching appallingly staged theatre.


The tale of Medea is a curious one, hardly the stuff of light comedy. Jason, whose previous heroic experiences involve a certain golden fleece, chucks Medea for a more youthful, Queenly bride. Revenge is plotted in the boiling skull of the slighted anti-heroine. Killing off Jason’s spouse-to-be using a poisoned dress, Medea crowns her revenge against her unfaithful husband’s happiness by murdering their own children. Unlike Aeschylus’ Oresteia, where there is divine intervention to restore equilibrium and justice, Euripides version of deus ex machina is far bleaker. Despite her villainous acts, Medea is whisked away on a golden chariot drawn by fiery dragons with the bodies of her boys – leaving Jason to his earthbound grief and Medea’s wrongs totally unpunished.


But back to Northern Broadsides – whose every succeeding scene will make you wish you knew a sun god with a divine sedan chair going spare and the benevolence to work your liberation. The responsible director (or should that be, the guilty man) also appears in the piece, which is generally a bad idea. Performing his parts with laboured, emotionless self-satisfaction, Barrie Rutter (for ‘tis his name) seems to regard walking fixedly as an important dimension of high dramatic portrayal. Observing a stodgy, significant retreat – his posterior conveys a certain poetic gravity as it creeps from the scene, lingeringly. Medea herself roars and rages - giving me cause to suspect that the actress (Nina Kristofferson) would be a grand panto villainess. There was a moment (pursuing a charming section where she got a big set of cymbals out and smacked them about a bit, no doubt to denote mental anguish of some stripe) when she cried “Bwahahaha!” Luckily, the audience was fairly anaesthetised and gerontic in composition. I imagine if any kids had been present they’d have cried ‘BOO! Hiss!’ anticipating a spot of banter with Snow White’s wicked stepmother. If a young wag had cried out 'Its behind you!', I'm not sure I'd have survived the ensuing existential crisis, brought on by melancholy reflection on the seconds of my life, sacrificed on the altar of Paulin's woozy Hellenic vision.


Perhaps the most cack-handed aspect of this production - which has more grimy mitts combining to make dirty work than a primary school class issued a bucket of chocolate fondue - is the chorus. Performed by three youthful bints in silage-coloured smocks who lapse into an occasional, insipid harmonica harmony, Rutter’s wheeze is to turn them into totally inhuman commentators. These dull, motionless harpies line up across the stage like traffic bollards and drone at the audience, or the characters, with all the dramatic flair of mixed concrete. I saw a splendid rendition of the Greek chorus in the Tron a couple of years ago, where three old character actors, crumpled twinklers who knew their business and played their parts humanely, gossiped engagingly as the tragedy of Antigone unfolded. They were just the stuff. That is what the chorus is meant to represent in Greek tragedy, after all – the reflections of ordinary mortals on the less ordinary drama of the protagonist’s travails and disasters.


The young witches three in Rutter’s production, however, declaim their platitudes sorcerously before decamping to commit an occasional, spiritless drum solo or inexpertly hoot on a saxophone. All highly profound and avant-garde in Rutter’s imagination, I’m sure. This consciousness, however, made these pulpy, alienating digressions seem even more absurd. In sum, by far the worst, least subtle, embarrassingly staged piece of professional drama I’ve seen in many a May. If like me you’ve a cankerous side, there may be impish enjoyment in a night spent appreciating the finer points of the disaster. If so, troop down to the Citz in March and blink disbelievingly as this lumpen production thuds by.

15 February 2010

Holyrood's Health 2 Committee...

So, there we have it. The Health and Sport committee won’t be summing up the End of Life Assistance (Scotland) Bill. Or will it? After the vote confirming the parliamentary bureau’s divided decision to set up a new, ad hoc committee to scrutinise the Bill on the 10th, committee memberships were proposed by the respective parties. The SNP tribunes, hostile to the ad hoc wheeze, defeatedly sneaked in their nominations during the Thursday session of the 11th of February. Wondering who would likely serve, I took to gently ransacking the parliamentary record, the press having failed to do my collating work for me. There is something rather striking about the confirmed list of commissioners which I discovered.


As an aside, I’m not terrifically happy with the name. Catchily baptised the ‘End of Life Assistance (Scotland) Bill Committee’, this is a thing of mortal dread and head-stopping boredom to rattle off the keyboard every time. If I was Sarah Palin, I’d warm to mortuary theme and call it the ‘death panel’. Given the gravity of its business – and lest I be accused of lodging baseless allegations about partiality in their ranks – I can’t go down that road. For brevity, therefore, I’ve decided to call them the ‘Assisted Dying Committee’ throughout. But back to our personnel. Finnie bristling authoritatively in the front rank, his five firm-fetlocked privates are as follows:



Convenor Ross Finnie (LD)
Michael Matheson (SNP)
Ian McKee (SNP)
Helen Eadie (Lab)
Nanette Milne (Con)
Cathy Peattie (Lab)


Compare this with the Health and Sport Committee, who Unionista Holyrood business managers determined couldn’t review the legislative material, whether on the grounds of its ‘moral content’, an argument about the wealth (i.e. not just health) of issues engaged by the Bill, or because of some spurious ad hominem against Grahame or MacDonald for that matter:


Convenor Christine Grahame (SNP)
Dept Convenor Ross Finnie (LD)
Helen Eadie (Lab)
Rhoda Grant (Lab)
Michael Matheson (SNP)
Ian McKee (SNP)
Richard Simpson (Lab)
Mary Scanlon (Con)


I’ve heard it persuasively argued that pattern-recognition and systematising of knowledge is a feature of the human brain. Pray, can you detect any eye-smiting similarities here? The Assisted Dying committee’s obvious primary difference is a thinned number of ranks. While the Health Committee numbers eight parliamentarians, the ad hoc is numbered two shyer, at six. That aside, continuity is conspicuous. No less than four of the six folk drafted currently serve on the Health Committee. Milne served on the equivalent committee in the parliament’s second session, from February 2005 to April 2007.


You might well argue – this is predictable enough from the SNP, who gloomily underline their point even in defeat by sending two of their healthmen out to bat. But what of Eadie and Finnie? From perusing her page at the parliament, I gather that Nanette Milne qualified as a Doctor in the 1960s, but lapsed to look after her children, and in her own words “worked part-time in cancer related research”. Peattie alone seems a mysterious choice, not sent to the committee either by dint of her background in the health professions or membership of the health committee. There may be a dynamic at work which escapes me, here. I’d be delighted to be illuminated as to why she might have been plucked from the Labour positions. So, we’ve functionally achieved an anti-health committee, stacked with members of the health committee and health professionals. Spiffy. On reflection, maybe I shouldn’t have dedicated myself so soon to the shorthand title of ‘Assisted Dying Committee’. From the foregoing, Health 2 Committee, as was the style in the last parliament, could serve us just as well and just as accurately. At which point, I wanted to stir a little fly into the parliamentary ointment. But first, an apt quote from Margo’s roaring dissent on the 10th of February.




“That I believe that the balance of opinion is probably against the bill is of no import, but it is very important that the committee's composition should result in balanced scrutiny. That is relevant because, with such a bill, on which members will have a free vote that they will cast according to conscience, the expected outcome is not a report signed off in the committee's name that has the support of the majority of members but an in-depth summary of the information that the committee's investigation has uncovered, which will be presented to MSPs as a neutral document, not as a recommendation.” 11th February Official Report at Col 23700


Although I appreciate the work of doctors and allied health professionals – I’ve never found them to be amongst the most erudite or lucid sections of society. This makes perfect sense on one level – if you’ve got your head buried in septic colons or ulcerous bladders, you won’t be attending to your philosophical studies or musing critically and systematically on the existential travails of the human spirit and its seeking after knowledge. You won’t have time. Even opening another book may seem a terrible chore. Crawling inside a bottle may become your only recreation. Not that I wish to suggest, in some crass generalisation, that those with medical backgrounds are any more incapable than any other cretin of thinking cogently about matters of autonomy, sacral or ungodly arguments about the sanctity of life, or ethics, or the implications for the administration of justice (to whit, Eadie is standing or sitting rebuttal, depending on her posture). Merely that their health credentials may be of more imagined usefulness that real tools to excavate ourselves from the moral, ethical and practical complexities surrounding the End of Life Assistance (Scotland) Bill. For now, I’m willing to suspend judgement and see how the six souls selected perform.