30 November 2010

Titania & Bottom...

Who says Americans want irony? Last night, I finally got around to reading a few of the secret and confidential U.S. diplomatic cables which have been released by Wikileaks thus far. This is no overwhelming gush of information - thus far, it seems very much dribs and drabs, only 281 of 251,287 at the time of writing. This presumably calculated to maximise the coverage successive revelations will receive. It is well worth reading the unexpurgated Cable No. 08BISHKEK1095 from October 29th 2008 in full. In it, U.S. Ambassador Titania Gfoeller recounts what transpired at a brunch meeting with a certain horse-faced Bottom. There was no post-equine come down, no cries of "My Oberon! What visions have I seen! Methought I was enamour'd of an ass."  By now, you will all have heard about Prince Andrew Windsor's reactionary, extraordinarily clichéd bore-for-Britain routine in the Kyrgyz Republic and Titania's incredulous assessment of his pontification and sub-pub-tedium. Our national bard Robert Burns identified the character type, many moons ago:

Ye see yon birkie, ca'd a lord,
Wha struts, an' stares, an' a' that;
Tho' hundreds worship at his word,
He's but a coof for a' that:
For a' that, an' a' that,
His ribband, star, an' a' that:
The man o' independent mind
He looks an' laughs at a' that.

What I found surprising about this cable - and others - is its gadfly, ironic tone, what might even be described as its literary style. I hadn't given much thought to what sort of values would inform the prose of (previously) sealed communities of diplomatic practice. I suppose I'd imagined a rather more bureaucratic, terse, lifeless form of composition.  Domestically speaking, Wikileaks have currently only published a couple of cables from the London Embassy but I imagine we can expect a political intelligence document or two, describing the state of Britain and thoughts on prominent political figures, past and present. Similar  assessments of the political fortunes and temperaments of Angela Merkel's German coalitions, Sarkozy's fate in France, Prime Minister Erdogan in Turkey  and others have already been published. For the narcissistic Scot, this raises the tantalising prospect that, given the potential geo-political significance of Scottish independence, we may yet read some sort of cable from 2007 or subsequently which touches on wurselves. Scottish legal magazine The Firm have confirmed that "sources close to the UK Government" have told them that the wiki-leaked data includes "significant Lockerbie material". It is exceedingly difficult to determine what this might mean, whether we are talking about the explosion, the trial - or discussion of Megrahi's subsequent compassionate release. Candid assessments, to be awaited with interest.

28 November 2010


I have an anthropological friend who has a fine line in tart put downs when it comes to survey-based quantitative social research. "Isn't it mad?" she asked me recently. "You take a series of stupid questions, ask them hundreds of times, shunt the answers through statistical analysis - as if sheer multiplication could make them fundamentally any less stupid." As I say, she's an anthropologist, so her rich descriptive prejudices may be forgiven and her venomous ethnographic saws are always worth gleefully and flippantly reviving when one meets a soor-faced economist who counts numbers amongst her closest cronies. One for those of you who enjoy a percussive thwap as a descending lead balloon ricochets off the floor.  That said, her doubts are substantive and raise important questions for anyone conducting or reading a quantitative analysis.  What questions have you asked? What answers do you permit? Are these the right questions, reflective answers? I'm reminded of one of my lecturers in my days at the University of Edinburgh, who asked various undergraduate law students How would you assess your intelligence on a scale of 1 to 10? The woman who instantly said "ten" certainly afforded an insight into her psyche. Most said "seven", thinking it more-or-less struck the balance between modesty and false-modesty's conceit. Some referred to demographic data, noting with an almost apologetic tone that "statistically" they must be an eight or a nine. Other, precise-minded (probably conveyancing) types applied their own eccentric calculus to the question and decided they must be a 6.7591 exactly.

My abiding sense was of the crassness of the question, the scantiness of the answers, the debatable issues about conceptions of intelligence and the innocence of the scale - which the brute enquiry simply doesn't struggle with. And look at the various logics folk used in their answers. In the first, a delusional conceit. In the second a conspicuous consciousness for how one's answer makes one appear. Thirdly, comparisons made possible because of formalistic standards of assessment and past academic performance - and the assumption that intelligence should be unproblematically identified with these. Finally, a private double-entry brightness ledger whose calculations remain eccentrically specific and decidedly opaque.

Unlike my anthropological friend, I'm more of a friend of social research by numbers, as long as we keep a proportionate view of the data such approaches can yield - and what the process unavoidably neglects, the issues it brackets, the (potentially exceedingly problematic) assumptions it makes. A wee example can be furnished by "Weber's Sandwich" who are conducting both Scottish blog reader and blog writer surveys.  I suspect others found some of the questions rather too specific - but being helpful minded respondents, you approximate, fudge, guess, gloss over definitional problems. We've seen similiar issues raised this week on the general idea of quantitative research into happiness or well-being. Similarly, I just wanted to touch on another piece of work, the Scottish Government's recently published paper on The Experience of Civil Law Problems in Scotland 1997 - 2004. The publication tries to combine existing sources of data - which are comparatively scanty - "to provide context and a baseline for the findings of the Scottish Crime and Justice Survey ( SCJS): Civil Justice Module, which will run from 2008 to 2013". I notice that Scottish legal magazine the Firm rather misread the document, suggesting that the research reveals that 76% claimed they had been treated unfairly by the police. This seems  a scandalously high percentage - scandalous, but ... er ... false. If you look into the document, you find that the 76% figure isn't the total number of respondents experienced unfair polis treatment, but the number of those who experience such treatment who sought assistance of some kind. Indeed, this reading is confirmed in the section on prevalence, which confirms that "the lowest group range in prevalence from less than 1% to 4% ... include ... unfair treatment by police". Once before, I've mentioned what is generally called legal consciousness or legal culture research which in a classically sociological way, examines how folk conceive of law and legal institutions. Much of this is inspired by Patricia Ewick and Susan Silbey's (1998) Common Place of Law: Stories from Everyday Life which broke ground by exploring how ordinary folk from the American State of New Jersey conceived of law's place in their lives and their understandings of conflict.  The book opens with a telling description of an African American woman and her travails in court and how she only received her legal entitlements because of the intervention of her wealthy white employers. As far as I'm aware, nobody has conducted similar qualitative research in Scotland. Whatever the limitations of the quantitative view of this study and the research which follows, we ought to appreciate all attempts to understand the complexities of law's place in our communal life. Its amazing how often and in how many fields researchers refer to the extent to which  issues in Scotland's social life are under-research, whether in contemporary and historical fields. In this respect, the limited socio-legal research conducted into Scots Law simply reflects wider trends.

Finally, on an unrelated note, I've composed today's Scottish Roundup, entitled "Clinging to November", including a passing meditation on my younger self's travails on the fitba' pitch. Poor unfit mite. Read it all here.

26 November 2010

Latest Holyrood poll...

What is the relationship between attitudes and voting behaviour? There is an extensive critical literature which engages with this deceptively simple question and the most modest, honest answers generally emphasise that its complicated. A range of reasons, beliefs and constellations of ideas obtain. What holds for one may not hold for another. We should attend to issues of identity and history, assessments of priority and the exclusionary logic of particular ideological commitments, with their structural silences and repressions. One of the most commonplace questions of this kind which befuddles British onlookers is why does the American working class vote in a way which seems contrary to their own material interests? In one sense, the question is useful as it indicates that the calculating, wealth-maximising individual is largely woken "Reason's" fantasy which struggles to explain the idiosyncrasies of people's actual commitments and the complex, often contradictory range of ideas they entertain about their world and politics. Equally, rather paradoxically, this focus on individual quirks risks reconstituting the lightbulb-headed ghost of the lonely individual, casting her eccentric little light as if in social darkness.

So we return to our initial question. What are the connections between attitudes to particular issues or  persons and (a) whether individuals vote and (b) how they vote? Strategically, from a partisan political perspective, the interest of the issue isn't academic.  How can we convince folk to emphasise one issue and not another? How to translate agreement into support? How to do so without (or more realistically, minimising) alienating other members of our coalition of disaprate interests? With today's Scottish 1000-odd soul Ipsos-MORI poll, I imagine many SNP members and supporters are asking themselves these fundamental questions.  Firstly, the "headline" results:

First, constituency vote...
  • SNP 31%
  • Labour 41%
  • Conservative 13%
  • Liberal Democrat 11%
  • Other 5%
Second, regional list vote...
  • SNP 32%
  • Lab 36%
  • Con 12%
  • LD 9%
  • SSP 2%
  • Greens 5%
  • Other 3%
On women voters...

Further confirmation today, as if it was necessary, that the significant gender gap in SNP support persists. Amongst those certain to vote, the gender division in Holyrood constituency voting intentions is Labour 34% male, while female support runs to a high 46%, compared to the SNP's 34% of male and 28% of female respondents. Its a stonking difference, albeit one which diminishes slightly on the list, with 29% of men and 42% of women saying they'll vote Labour. 34% and 31% respectively say they'll vote SNP.

On the Cooncil Tax etcetera...

78% of respondents are in favour of keeping Council Tax at its current level, with 77% of men and 79% of women agreeing with that proposal and only 17% of women and 21% of men disagreeing. Very few had no position on the issue. On maintaining levels of NHS spending as it is, 69% were supportive, 25% opposed. On £21,000 public sector pay freeze, support at 60%, opposition at 36%. Finally, on the proposed abolition of prescription charges, 59% support compared to opposition running at 36%.

On the Maximum Eck...

Overall 54% pronounced themselves satisfied with the Maximum Eck, compared to 37% who are dissatisfied and finally there was a fence-sphinctered 9% who dinnae ken. It is often suggested that Alex Salmond may appeal less to female voter. This is reflected - but only slightly - in attitudes towards him, with 58% of men questioned satisfied compared to 52% of women.  Interestingly, Alex is more divisive but remains popular amongst the older Scottish cohorts. Amongst 35-54 year olds, the satisfied/dissatisfied numbers compared 54% to 41% and amongst over 55s, 53% popularity compared to 41% who are unhappy. In David Torrance's recent biography, (reviewed here), he refers to the Eckly cultivation of the character of the Scottish Everyman. We might be tempted to see this reflected in the poll, which enumerates that his popularity only wobbles between 53% and 57% satisfied across all socio-economic categories. Among SNP supporters, 88% were satisfied, while he is slightly more popular amongst rural than urban voters (57% to 54%) and less unpopular in rustic Scotia (34%/38%).  That said, even Scottish Labour voters in Holyrood are neatly divided between approbation and opprobrium,  46% to 47%. Among the yellow-feather brigade, Caron is not alone, with 54% of her fellow Liberal Democrat voters approving of the First Minister.

So what? What is the use of such recognition and popularity if it doesn't pull your party along after you? What good an overwhelming support for not raising the council tax, if that doesn't result in the recognition that the SNP is the place for you? The question I began with is central. Our understanding of what it means to "fail to connect with the voters" will set in train a whole strategy. There is much, much more which one could say here and the polling details break down across more than a hundred pages. Do take a look for yourselves.

25 November 2010

(Eck's)press remorse...!

"I apologise". Say it properly. "I repent." With more feeling, if you don't mind. "I regret my actions". Really? "Yes". I don't believe you! Can't you make the answer catch in your throat, your eyes mist? "Er..." You see, he doesn't mean it! "I humbly beg your forgiveness, I assure you". Not good enough! Etcetera, etcetera. I've written here before about the odd conceptions of responsibility and purgation which attach to political apologies. In fairness, this week's John Swinney, guilty silence and the Scottish Variable Rate ballyhoo is a different case. For those who think they've detected a knowing, abashed restraint in the SNP blogosphere on this tale, no doubt my brief, belated thought or two - apologies having already been elicited from both Swinney and Salmond - could be seen as taking my line from the party's high heid yins and only endorsing an assessment of failure which they themselves are willing to sanction. However, in brief, here is my sense. In his budget statement of the 17th of November, for John Swinney to utter the following sentence was foolish:

"Within the Parliament's existing revenue powers, we have explored options for maximising our income. We have been mindful of the need to consider the effect of the significant tax rises that the UK Government has announced before we act. I therefore confirm that we will not raise the Scottish variable rate of income tax."

Although on one level, this is perfectly consistent with a number of facts including (a) no revenue power has been theoretically lost and (b) the use of the power would entail significant expenditure, no doubt weighing against any income-maximising assessment, frankly I'm bemused at why this information didn't receive a public, parliamentary airing before now. In which context, we should remember that the Liberal Democrat Secretary of State for Scotland was able to access this information, and amid the great gulps of Loch Lethe which Labour are inviting the electorate to swallow, we shouldn't forget that they only left Westminster office earlier this year.  Even further back in time, it is absolutely relevant that contrary to the impressions given by some, when the SNP entered office, the SVR does not seem to have been "fully" operative at all.  Yet fundamentally, as Swinney and Salmond both recognised this week, this is a screw up.

As I suggested in my previous piece on apologies, curiously, repentance is often a great falsifier, turning accident into intention, in part because making a wrong decision looks more robust than simply blundering. I have no insight into what transpired internally and scanty time or interest to spend combing through the wads of paper to find out.  That said I also agree, by the by, that effectiveness is the important criterion here and critics are right to talk about the effective loss of powers, insofar as they caveat that observation with the condition that large expenditure could effectively revive them. Equally, I think those members of the SNP benches who attempted to offer a cavilling defence of John Swinney based on legalities were not helping, primarily because thinking in terms of effectiveness is the friend to the SNP here because effectively it doesn't make a blind bit of difference. For those who live in a Manichean universe, who like to see things sharply delineated in black and white, all that matters is what side of the schism an issue falls. Am I right? Is he wrong? Often - all too often - people who conceive the world along these lines fail to examine the issues along the vital third axis - how much should we care? What is a proportionate analysis of the right or wrong? It isn't a tasteful little irrelevance that no party save for the Greens proposes employing the SVR mechanism. I noticed there was talk in yesterday's Holyrood debate of conflating the issue of justifying the decision with the argument that parliament should have been informed and have a chance to contribute to that decision, basically, that process values were being commingled and confused with substantive issuesMaybes aye, maybes naw. While I'd agree that folk like Linda Fabiani were jumbling the issues - its important to notice that various members of the opposition made precisely the same conflation. Where they disagreed and why both sides might well wield the language of missing the point - are their profoundly different positions on the bigger question what matters here? What is the more significant issue? Are angry opposition parties all saying that they'd have made a different decision? If not, is this only about institutional process, parliamentary prerogatives? In his contribution, Patrick Harvie most clearly and helpfully distinguished the two related but distinct issues, primarily because unlike many of the  toerag Labour members, his position on using the SVR is clear:

"I do not want this debate to be seen as a debate between the Labour Party and the SNP; it is, most centrally, a debate between Government and Parliament. Both sides in the debate have a detailed narrative about which Governments said what or did what at what time, but I am clear that, soon after coming to power in 2007, the current Scottish Government understood very clearly that this situation was developing and was not being resolved. Why was I, as a member of Parliament, not told at that time? Earlier, Stewart Maxwell said that everyone in the Opposition parties should have said which budget the money was to come from if we wanted it to be paid. I would have been delighted to have the opportunity to say what I think ought to have been the priority—but I was not told."

How you respond to the brouhaha will depend, I fancy, on what you think is more important, where you put the emphasis. Like Mr Patterson and others:

"I’ve had time to do no more than skim-read the various acts of correspondence on this matter and have only just made the time to ask myself what would be the obvious consequences of action X. And having done so, I have concluded and argued that the consequences of letting the SVR lapse are less negative than actually using the SVR either way, and less perverse than just letting it sit there."

Incidentally, I also recently heard it suggested that the SNP sends e-mails around bloggers, suggesting issues, individuals or subjects we ought to blog on. For the sake for categorical certainty, I for one have never received any such e-mails nor know of anyone else who has received such a communication. But since tu quoque allegations of hypocrisy are in vogue this week, just a little mischievous thought. Understandably enough given his employment, I'm not sure I've ever read James criticising Scottish Green party policy, so even the most loyal cybernat must dissent from the party line in public more often that Mr MacKenzie. Or alternatively, perhaps he would like to identify a particular issue where he has criticised his masters and thereby transcends our particular benighted Tartan Taliban band of ardent adherents? (I'll file this one on the "damned if you do, damned if you don't" shelf...) 

Its a rather interesting question actually, why are nationalists more amenable to characterisation in this way? After all, think about the wee column of Scottish Labour bloggers which have popped in and out of the scene. Hardly notable for their rousing critiques of their own tribe's orthodoxies, are they? One familiar answer would be a consciously biased, scornful Unionist media, who sit in their offices perpetuating a conception of the party and its supporters as a band of unserious cranks, Quixotic romantics, with every opportunity to scoff or condescend greedily seized. Yet the phenomenon is broadly based beyond the press, often curious so. I had lunch a few days ago with an English chap -  who was actually educated at the University of Edinburgh - who rolled his eyes when another friend said he was minded to vote SNP in May 2011. Indeed I discover that all Scottish Nationalists who stray into England should brace themselves for often passionate contempt, at best only vaguely connected to particular policy positions or perfectly mainstream convictions. A thought to be expanded on another day, that...

23 November 2010

"The Trump" ~ My bothy industry...

Seen as I'm a no longer simply a member of a moderately-sized society, but have been informed by my lords and masters in Westminster that they've decided I should be a free, active and committed member of the big society,  I set my mind scurrying off for ways to contribute to the restoration of the ailing fortunes of "Broken Britain", in "the national interest". Unfortunately, like many folk, I'm too impoverished to actually do anything, so it struck me that the most patriotic, socially biggifying act I could undertake was to become filthy rich with some instantly successful commercial wheeze. Having feathered my own particular nest, I could then afford to bung a quid or two towards some eccentric charity of my choice. Is that not, dear friends, is the distilled essence of 'a climate that empowers local people and communities, building a big society that will 'take power away from politicians and give it to people'? Charity begins at home, as they say, and so too does the Big Society.

But what, pray, what could Peat Worrier Industries manufacture? Endless reams of prose, certainly, but the market for that is already saturated. Many angsty nights were spent locked in my bothy, as innovation and enterpreneurship ate away at my cranium. Such was my focus, such was my indifference to sustenance, that I hardly noticed the friendly spider at my knee, who wove her web across the tumshie I intended to boil for breakfast the following morning. Blessed arachnid she was, no doubt the great-great-great-great granddaughter of the eight-legged belle who taught Robert the Bruce the virtues of patience and perseverance! Glimmering beads of dew flickered in the dawnlight that illuminated the webly comb-over which covered my turnip's nakedness. And then I knew. Knew all at once that my commerical mission was to produce an artisan-branded Scottish alternative to  conquer the fevered epilators of our hair-fearing, crotch-tugging, wax-wielding world!

Whether it is the humble deforestation of the peeled bikini-line, or more creative alternatives, it struck me that increasingly head hairstyles were being replicated in the pubic coiffure market. The Mowhawk migrated south, both figuratively and literally, coming to be known alternatively as "French" waxing, while (baldy men rejoice!) slap-patery was itself glorified in hairlessness of a "full Brazilian" or "Hollywood" style wax. In Scotland, it struck me that we have a style of our own which the cunning pubic-rearranging souls of the world's salons have not yet embraced. Football fans will know it as the "Archie Macpherson". My spider spun it across the humble turnip. To aid our expansion into the U.S. market, I call it "the Trump".

Inspired by the generosity which is at the heart of the big society, "the Trump" will not impoverish the loins of its wearers with paltry landing-strip sculpting, but will instead form a lush one-sided bushel which lucky customers can then comb across the relevant portions of their anatomy. Both snug and aesthetically pleasing, Peat Worrier Industries will offer a range of exciting products, including bespoke "Full Trump" extensions to allow the customer to boast a pubic comb-over in the man himself's trademark copper-blonde-um-ish hue. Alternatively, why not consider our fully-organic, locally-sourced "Natural Trump" lovingly fitted by our fully-trained artisans to you own preferred colour scheme? With Christmas coming up, bring the jolly spirit of a vain but balding Santa Claus into your home by investing in our festive, ivory Santa "Novelty Trump" for the Winterval season! And coming soon, a limited edition run of "Real Trumps", which will incorporate a hair or two from the great man himself, hand-picked from his pillow during one of Donald's recent visits to Fair Scotia. All Trump related fibres fairly traded from local hotel workers. Prices begin from £29.99. At least 1.45% of total profits to go to Big Society projects within ten years.

So don't delay, Trump your loins today!

21 November 2010

Double jeopardy's (very) cold cases...

I dare say that a fair few of our tribunes have whiled away the watches of the night in front of Waking the Dead, Cold Case or New Tricks. Dramas structured around unsolved criminal cases - their dominant themes are unresolved conflict, the dull throb of guilty memories, the guarded panic of those whose success is erected on the foundations of some foe's last gasp, some dirty trick or repressed mischief. Generally speaking and to varying degrees, all three shows introduce the use of scientific methods to re-evaluate past failed investigations. This movement is generally made by resorting to a (classically morbid and/or eccentric) boffin, who produces a singular piece of evidence acquired through their mastery of the magical operations of modern science. Follicles under fingernails, soil samples, paints only manufactured between 1960 and '63, distinctive tyre-tracks, the imprint of labour or environment on a spent cadaver -  and so on and so on. Such small details send Science's polis cronies' fingers pointing at one soon-to-be-unhappy guilty citizen.

Like much of the population, I'm not well-versed in the practice and practical limits of contemporary forensic techniques. However, much like Cracker articulated a conception of criminal psychology which entered the popular understanding, this CSI-sation of crime detection seems prima facie rather problematic, generating inflated and potentially distorted expectations. We can detect some evidence of this tendency in parliamentary discussions of the Scottish Government's proposals to allow those acquitted to be retried in Scotland under particular circumstances. One such circumstance is the appearance of new weighty evidence. With its focus on new scientific techniques, past investigations without access to those tools, the issue becomes particularly pointed in discussions of whether the reform should be retrospective or not. For instance, in a Holyrood debate earlier in the year, one SNP parliamentarian argued that:

Stewart Maxwell: "I turn to what I believe is one of the most important questions about the changes to double jeopardy law—whether they should be retrospective. In all honesty, I can see no logic in saying that such changes should not be retrospective. If we do not allow retrospective application of changes to double jeopardy law, we are endorsing the past injustices that have been perpetrated on Scottish citizens. That is unacceptable. One of the greatest advances in criminal investigation has been the application of new technology to cases and, in particular, the introduction of DNA evidence. Advances in DNA evidence are leading to the solution of cases in which no person was convicted at the time or has been subsequently—so-called cold cases. If we have convincing new evidence, nothing should stop our prosecutors charging and trying an individual—even if they were acquitted before any changes in the law came into force."

In Holyrood's justice committee this week, this account of why retrospection is practically necessary, practically possible was blown to bits by one of the Scottish Law Commissioners. Here's what Patrick Layden QC told Baillie Bill Aitken and friends:

Patrick Layden QC: "The reason for [retrospective application of a new evidence exception to the "double jeopardy" rule], we are told, is that this is the area in which it is said that the police and prosecutors may be able to reopen cases in the light of advances in technology. People talk about DNA and so on. Where physical evidence is retained, it can be re-examined in the light of scientific advances. When DNA became a useable technology, it was possible to re-examine blood and other samples in unsolved cases and compare the results against the developing national database. That was how Angus Sinclair was convicted in 2001 of the rape and murder of Mary Gallacher, which happened as long ago as 1978. It is an extremely useful technology.

When a crime is unsolved and there has been no trial, the police keep the physical evidence as a matter of routine so that it is available if and when more evidence more turns up. However, we checked with the Crown Office, which confirmed that where there has been a trial and the accused has been acquitted, as a matter of routine the physical evidence is thrown away. There is no point in keeping it. Therefore, it does not matter what scientific advances there may be. Where someone has been acquitted, no physical samples are available for testing. Making the exception retrospective will have no practical effect. No doubt the Crown Office will be able to tell the committee how it intends to deal with that matter in future, but as far as the past is concerned, there is no evidence. Not only is there a strong, principled objection to making the legislation retrospective, but retrospection will not achieve any noticeable practical effect.

We raised in our discussion paper the question whether anyone knew of any cases in Scotland that might be reopened if the legislation were passed and made retrospective. The police, the prosecutors and the judges were not able to think of a single example. So far as I am aware, that remains the position today."

Of course, it makes perfect sense. If you are operating in a system which does not permit retrial after an acquittal and your archives are overflowing with material evidence, why keep it? What function might it serve?  It is entirely predictable, with a little thought, that the procurator fiscal wouldn't retain a vast vault clogged with old knives, rusted pistols, blood spattered clothing and what have you. Subsequent witnesses from the Crown Office confirmed this account of their historical evidence-retention practices but defended the principle of retrospective application, arguing that relevant documents are retained for a decade, new eyewitnesses may be found or a new piece of physical evidence - say a concealed weapon bearing identifying DNA traces - which would still justify the possibility of re-indictment. Does this revelation strength or weaken the case for retrospection? Layden opposes the proposals on the basis of principle. Arguably, the Law Commissioner's sally demonstrates that Maxwell had been watching too much telly, and misses his mark. The idea that this Bill will practically allow new science to be applied old evidence to instigate new prosecutions is clearly wrong-headed. It won't and Scottish prosecutors frankly admit such. Crown witness Scott Pattison reiterated that:

"It is right to say that real evidence will no longer be available in some cases, but it is conceivable and consistent with our experience that, in some cases, new real evidence will become available and be able to be subjected to the sophisticated forensic and scientific techniques that are available to us now."

Despite this, I anticipate that the parliament will support the retrospective principle. Paradoxically, these practical limitations on who can be retried may actually serve to allay the fears of folk who are dubious about the reform.

19 November 2010

"Awa’ Margo. Yer no gettin’ yur bill..."

An end, a setback, a predictable result? Yesterday, the Holyrood committee scrutinising Margo MacDonald's End of Life Assistance Bill concluded that it, "does not recommend the general principles of the Bill to the Parliament.", on the voice of the majority of its members. The report is deeply, deeply institutionalist, by which I mean it focusses in detail on her proposals, generally avoiding any temptation to engage in an abstract comparison of the varying philosophies of those who submitted evidence, oral and an in writing.  Equally, it reeks of caution - and in the case of uncertainties, doubts, unknowable quantities, resolvable difficulties in drafting - seems to be operating under the conservative assumption that the status quo ought to prevail and the proposal should be fatally booted out into the gutter immediately. I'm not saying that all of their critiques are ill-founded. Merely, that it is noteable that every area of doubt is inflated, the significance of Margo's principled counter-arguments are muted. In short, this is a demolition job on the detail and scanty on precisely the general principles stage 1 scrutiny is tasked with exploring. The parliament as a whole  (or however many of the diffident scoundrels deign to attend) meets next Thursday on 25th of November to debate the issue and needn't follow its six-soul Committee's views. Noteably, the conclusions were not unanimously endorsed, so at least one member of the scrutiny panel must have proved sympathetic to the general principles Margo was espousing. No doubt when it comes to the vote, we'll be able to work out who that might have been. Having adduced the evidence they received at length, the Committee handed down the following conclusions. I'll pick up one of them and otherwise leave the rest for your judgement and consideration.

The Committee recommends that the Parliament take the following findings of the Stage 1 inquiry into account when arriving at a decision on the general principles of the Bill—

There is no ambiguity in current Scots law in this area – if some people choose to travel to other jurisdictions to commit an assisted suicide or to access voluntary euthanasia, they do so because certain, inherent aspects of those actions are unlawful in Scotland. That the decision of whether to prosecute is separate and subject to the Prosecution Code is part of due process. Any call for clarity is, therefore, spurious.

Not to put too fine a point on it, this is tosh. Complete and utter pish. "Spurious" reads like pure Ross Finnie. No ambiguity? Considering the Committee failed to ask the Solicitor General any of the difficult questions or uncover the tensions inherent in the analysis he propounded - is it any surprise that eveything seems as clear as day to the empty-headed lot of them? I outline some of the issues in much greater length in the post above. To harp on onestring, what about helping someone travel to a different jurisdiction? In England, that is criminalised under the "assisting" provisions in Suicide Act 1961, which doesn't apply to Scotland. So what about here? What are the conceptual limits on the definition of culpable homicide? The Solicitor General argued that causation isn't broken if I brew up a noxious compound and make it available to you, which you ingest and then perish. That, he submitted, is a cupable homicide. While this is ludicrous enough in itself, what about other forms of assistance? How direct does the "cause" have to be? Does a plane ticket count? The Committee also makes reference to the law of concert, after the Solicitor General, holding it plain that:

"... if a first person assisted a second person – thereby acting in concert – to take that second person’s own life or attempted to do so, the first person would be dealt with under the law of homicide".

But wait a minute. It isn't illegal to commit suicide, is it pray? No? Then how can assisting someone to commit something which isn't an offence be offensive? If it shades into a form of homicide, you might say, if the accused person's actions shift from bystanding to participation, if it has a causal nudge, if it becomes direct life-ending action? These are questions. Real, substantial questions. There may be answers to them, but the Committee offers none. Perhaps I should compose the list and submit it to each of them. After all, as they are such learned legal scholars, unabashedly issuing proclamations that all is clear, no questions left outstanding, even to suggest anything less than crystalline clarity in the notoriously messy Common Law is a "spurious" exercise - they shouldn't mind being put to the question and furnishing me with those straightforward answers beyond my own wit to reach.

"Examples from other jurisdictions have been offered as though comparable with the proposal in this Bill. However, there is firstly an important difference in the cultural and legislative contexts of those countries compared with Scotland. Secondly, there is a fundamental difference in the breadth and scope of this Bill.

The Bill seeks to decriminalise both assisted suicide and voluntary euthanasia under a single definition – it would have been clearer for the two acts to have been dealt with as separate provisions in the Bill.

An individual’s ‘autonomy’ has been advanced by the member in charge as a central argument in favour of the Bill. The Bill would not, however, accord or establish any rights. Further, although courts have acknowledged the right to respect for a private life, they have also acknowledge that this right may have to be tempered in the interests of wider society. The Bill should be considered, then, in the context of preserving a balance between an individual’s right to exercise autonomy and the interests of society as a whole. Most members of the Committee believe that the wider societal concerns should prevail in the context of the Bill and do not accept the principle of autonomy as argued by the member in charge. One member believes that the interests of the individual should prevail.

The preservation of an individual’s ‘dignity’ has also been presented as a central argument in favour of the Bill. However, ‘dignity’ is capable of two interpretations. Whilst those in favour of assisted suicide see it as a means of preserving dignity in the terminal stages of life and in the moment of death, those against present an equally compelling argument that a hastened death is undignified by its very hastening and that the key to preserving dignity in the terminal stages of life lies in the quality of care available to and the respect afforded to the dying. It is impossible to reconcile these arguments.

In Scots law, if a person aged over 16’s capacity is to be challenged, the challenger has to lead evidence to demonstrate the loss of capacity. The majority of evidence questioned why the Bill would create an unprecedented requirement across the board, to the effect that all individuals requesting assisted suicide and voluntary euthanasia would be subject to a test. However, the Committee believes that, in a situation such as this, the approach would be justified.

The Bill would establish a procedure, one of the purposes of which would be to detect undue influence. However, the approvals necessary to proceed would be obtainable following two meetings with a medical practitioner and one other meeting with a psychiatrist, neither of whom would need to have previously had any contact with the requesting person. The question is whether this level of contact with these particular categories of person would give sufficient assurance that there had been no undue influence on the requesting person’s decision.

The Bill attributes a meaning to the phrase “end of life assistance” that does not explicitly include any notion of hastening death. This use of terminology is confusing and arguably misleading and inconsistent with the member in charge’s stated reasons for proposing the Bill. It would have been unambiguous to use the terms “assisted suicide” and “voluntary euthanasia”.

The Bill, in setting out eligibility requirements in Section 4, ostensibly provides for an objective standard based on finding life “intolerable”. The Committee believes, however, the standard set out is inherently subjective. Indeed, the member in charge placed great emphasis throughout the inquiry on her intention that the wishes and self determination of the requesting person be paramount. Such a test cannot, therefore, stand up as an objective test.

A further eligibility requirement set out in the Bill would be based on being “permanently physically incapacitated to such an extent as not to be able to live independently”. This raised a number of equalities issues. The terminology used was aimed at capturing a small number of people who find life intolerable but could also apply to a wider group of people with a range of physical conditions or physical incapacity. This is symptomatic of the breadth of the member in charge’s intentions. The immense difficulty of drafting a provision that would capture all those that the member in charge means to include without extending to whole other groups should be recognised; this terminology is, however, extraordinarily wide.

There are real problems in the Bill’s definition of “terminal illness” as it is based on a notion of timescale that may be difficult to ascertain.

In relation to the eligibility requirement based on an inability to live independently, the Committee found evidence from organisations representing people with disabilities to be particularly compelling because of the way in which society may let an individual’s life be intolerable by neglecting to provide sufficient and appropriate support. Using the inability to live independently as an eligibility requirement for end-of-life assistance raises issues of definition, clarity and subjectivity similar to those relating to other terminology in the Bill, with the additional possibility of unintended consequences.

The Bill does not specify any particular qualifications or experience for the designated practitioner and psychiatrist roles. The Committee shares the concerns raised in evidence about this issue but notes that this may raise competence, regulatory and legal issues. The Committee did not hear evidence that these issues had been explored.

Points were also made about the age threshold. Some members found the threshold at 16 to be consistent with other legislation. Other members were sympathetic to the arguments in favour of setting the threshold at 18.

Concerns were expressed on the lack of detail with regard to the requirement for the presence of the designated medical practitioner but believes that any medication administered during the end-of-life process should nonetheless be in the presence of a medical practitioner.

The Committee is concerned that the setting of a limit of 28 days for the provision of end-of-life assistance could encourage a person to proceed prematurely.

The Bill would not explicitly require the participation of any particular person or class of person in assisted suicide or voluntary euthanasia. Nor does it state explicitly that they would be able to refuse to take part. An absence of a requirement is not necessarily equivalent to a right to refuse. There were calls in the evidence for a form of ‘conscience clause’ to be specified. This may, however, fall within the ambit of regulation of the health professions and, therefore, outwith the legislative competence of the Parliament. It may be difficult for this Bill to find a satisfactory solution within legislative competence. The Committee believes, however, that, in legislation of this nature, a conscience clause should be included.

Contrary to the assertions of the Policy Memorandum, the Bill could have a negative effect for disabled people. There are also potential issues of inequality in relation to remote areas where it could prove difficult to find locally practitioners and psychiatrists willing to participate.

The Committee is not confident that equalities issues have been robustly considered in the preparation of this Bill. The Policy Memorandum asserts that the Bill will have a “positive impact on issues of equality” but does not appear to be able to support this claim. It is an established practice that Scottish Government bills and policies are impact assessed to ensure that a negative impact is not inadvertently created for equality groups. The member in charge has not followed this example and the Committee finds that, as a result, the consideration of the equalities impact of the Bill lacks rigour.

Consideration of the Financial Memorandum uncovered weaknesses in its approach to estimating the number of assisted suicides and deaths by voluntary euthanasia that would occur if the Bill were enacted. In particular, no sufficiently sophisticated modelling has been undertaken. The Financial Memorandum also makes flawed assumptions about where costs would fall and is vague in respect of their scale. A further potential equalities issue – the possible differential impact on people from varying economic backgrounds – also appears to have been overlooked in terms of costs that may have to be met by individuals.

Overall, the majority of the Committee was not persuaded that the case had been made to decriminalise the law of homicide as it applies to assisted suicide and voluntary euthanasia, termed ‘end-of-life assistance’ in the Bill, and, accordingly, does not recommend the general principles of the Bill to the Parliament."

The Committee's full report can be read here.

18 November 2010

Mercy! Dundee gun granny freed...

"Oh learned judge! Most upright judge! A Daniel come to judgement!", as Rumpole might have said. Remember the case of Gail Cochrane? She was the unfortunate Dundee granny who kept her old father's service revolver as a last memento of the dead man. It had been in her possession for some 28 years. Despite its corroded and scratched external condition, a firearms expert suggested that the gun, which was of Czech manufacture from around 1927, could still fire bullets. This Browning self-loading pistol was discovered under a mattress during a police raid on her house (seeking out Cochrane's son on an outstanding arrest warrant). She was prosecuted under the Firearms Act 1968 as amended, and pleaded guilty to two charges, including unlawful possession of a firearm under §5 of the 1968 Act.  Today she has reason to be immensely grateful to Lords Reed and Marnoch. As do we all.

The technical devil emerged from his cloud of brimstone when she was sentenced. Since 2003, the offence of which Cochrane was convicted carries with it a minimum custodial penalty - five years lodging at Lizzie Windsor's pleasure. However, the Act allows a judge to alleviate the harshness of the punishment in individual cases, allowing them to set aside the quasi-mandatory minimum jail term if "the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify" non-imposition of the statutory minimum penalty (§51A(2)). Through her legal representatives, the unfortunate Cochrane was unable to convince Lady Smith, sentencing, that her case fell within the ambit of circumstances exceptional. Sending Cochrane to jail for five years, the judge told her that:

"I have reviewed everything that has been said but I am not satisfied that a reasonable explanation has been put forward for not handing this gun into the authorities over the 29-year period she had the gun in her possession. I have considered all the circumstances in this case. I cannot find this is one of the rare cases when exceptional circumstances exist."

Cochrane appealed against this decision. Today, the High Court of Justiciary's Court of Criminal Appeal issued its opinion on her case. In his remarks, Lord Reed characterised this as a "difficult and anxious case". Interestingly, the Advocate Depute, appearing for the Crown, frankly admitted in the course of the hearing "that there had been some debate within Crown Office as to whether to bring the present proceedings against the appellant". Handing down his judgment, with which Lord Marnoch agreed, Lord Reed emphasised that:

"...an appellate court will not readily interfere with the decision of the sentencing judge as to whether exceptional circumstances exist unless the judge is clearly wrong. I have however come to the conclusion that it is appropriate to interfere with the decision of the sentencing judge in this case."

Having outlined the relevant features of Gail Cochrane's circumstances, which he argues "collectively make it possible to conclude that this is a case where the court was not required to impose the minimum sentence" he held that:

"When account is taken also of the present appellant's personal circumstances, it appears to me that the imposition of a sentence of five years' imprisonment would indeed be arbitrary and disproportionate. It would not be rationally related to Parliament's intention in stipulating that a sentence of at least five years' imprisonment should normally be imposed, since the present case falls outside the range of cases which Parliament can be taken to have had in mind as the norm; and it would result in punishment which was out of proportion to the seriousness of the appellant's offence and her personal circumstances, relative to the punishment imposed in other cases. "

Quashing her prison sentence, Reed & Marnoch agreed that Cochrane would perform 240 hours of community service in the alternative. She has already spent six weeks in prison, while this appeal was pending.  Significantly, and rather unusually in appeals of this short, Lord Carloway dissented from the narrow majority, arguing that:

"the circumstances here are not exceptional. In that situation, even if the court considered that the penalty imposed upon the appellant had been a severe one, the court would be bound to apply the minimum sentence set by Parliament. The court must bear in mind that the democratic process has legitimately determined that a substantial minimum period in custody is required as a deterrent in order to deal with the real problem of prohibited firearms. Even if the court considered that exceptional circumstances did exist, it could not justify the imposition of a non-custodial sentence for the possession of a Browning 7.65 mm self loading military pistol.".

For my part, intellectually speaking I tend to agree with Lord Carloway's assessment - but staunchly welcome the righteous verdict of Lords Reed and Marnoch. Cochrane's five year sentence wasn't the unreasonable application of a reasonable law but simply reflected what our parliaments are doing when they seek to curtail judicial discretion and install minimum sentences. Cochrane's grossly excessive, unjustifiable, half-decade jail term reflects precisely what mandatory minimum sentences are all about, deaf to understanding, excuses, circumstances. They mandate "draconian, unjust and disproportionate" sentences in cases just like this one. It is their modus operandi. That may be so, but intellectual stringency cannot justify the prison term which was imposed. I've no interest in creating martyrs whose lives will be wrecked, in order for our legislators to realise the errors of their ways. Lords Reed and Marnoch exercised their mercy and sense here today. You can read their judgement in full here.

17 November 2010

Recall delayed, recall denied?

Remember this?

"The parties will bring forward early legislation to introduce a power of recall, allowing voters to force a by-election where an MP was found to have engaged in serious wrongdoing and having had a petition calling for a by-election signed by 10% of his or her constituents."

Earlier in the year, I blogged about the ambivalent ways in which this commitment was being understood - and members of the Westminster government's signal and continuing failure to clarify their intentions. The specific questions I last posed in July have still not been answered and remain germane. In particular: 

(1) Wrongdoing found to whose satisfaction? Proved to what standard?

(2) Some references to the power seem to imply a technical definition of wrongdoing, presumably referring to a charge proved in a criminal court. Is this the case? Would any crime do? Serious seems to put some qualification on wrongdoing. If so, what is the nature of that qualification?

(3) Alternatively, if serious wrongdoing will not require proof and conviction to the strict standard of general criminal law, who pray will adjudicate on the serious wrongfulness of MPs conduct? Some Westminster panel?

(4) Alternatively, if there is no standard or no authoritative adjudicator of proved serious wrongfulness, wouldn't it be more accurate to say that the government proposes to allow a recall election simply if 10% of the relevant population sign a petition?

Interestingly, the Liberal back-flip from promise to phase out tuition fees to ratcetting them up mercilessly along with our Tory cronies lends these crucial issues a particularly significant frisson. How might this hostile context impact on the detail and crucially the timing of the reform? Take the University of Edinburgh, which educated 28,394 students in 2009/10. A few reasonable caveats should be taken into account. Firstly, the population is dispersed across the city's constituencies, secondly, the electoral-roll total will be diminished by non-voting international students, thirdly, some may vote in home constituencies, finally others may support the introduction and  debt inflation of tuition fees or in the alternative, just not give a fig. My point is that the student population of the University of Edinburgh alone pushes us way over the proposed rule allowing 10% of the electoral roll to force a recall election in their constituency. In Edinburgh's case, of course, a number of higher education institutions overlap, so the potential student population is even higher. The same story can be told in different parts of the country. 

As we were discussing a few weeks ago, constituency sizes vary significantly, a phenomenon Cleggy is striving to end by equalising the population of constituency around 77,000 each. However, at present the UK average population is 69,500 - balanced out from 71,000 electors in your average English constituency, 66,000 for Scotland, 56,500 in Wales and just over 63,000 in Northern Ireland.  Alistair Carmichael must be chewing his bunnet at the thought. Only 3218 Shetlanders and Orcadians would need gather, crying "dance piggy dance!" to force him to gyrate for his representative's dinner. Given the combination of (a) Liberal representatives in university constituencies and (b) their volte facing on the marketisation of higher education, the definition or non-definition of "serious wrongdoing" becomes critical. Particularly for those nervous-looking liberal members of parliament, half-eyeing the jobs pages and haunted by the whip's stern countenance.

In the balmy days of summer, it was unclear which approach the government would seize. Would definitional and institutional problems around seriousness and wrongdoing force them to adopt a more freewheeling approach? Would they be concerned that any Westminster adjudication mechanism would sit uneasily beside a measure billed as empowering the people? With the Liberal decision to support and dramatically increase tuition fees, the issue becomes less academic. Note that the coalition agreement refers to "early" legislation on the issue. Remember also that Nick Clegg told Jo Swinson over the summer that:

"If a member of this House is shown and proved to have committed serious wrongdoing, that their constituents would not have to wait to cast their own judgement on the fitness of that individual to continue representing them to parliament until the next general election, but they would be able to trigger a process of recall by a petition, set at a threshold of 10% of people in the local constituency. We do intend to bring forward that proposal which will enjoy cross-party support, in legislation next year."

With the Millbank protests focussing their minds, what the devil will the Conservative-Liberal coalition do? Either way, two substantive options are open to them.  The government could introduce, with some justification given the gist of their coalition agreement, a much caveated right of recall - achieving the conscious but unavowed goal of producing a definition of "serious wrongdoing" which would exclude fibbing to the National Union of Students. Consider that Eliot Morley et al. still have not faced trial on their alleged frauds, uncovered during the Westminster expenses scandal. The more formalistic the standard, the more paltry the radical reform of investing the electorate with power to recall their representative becomes and comes to appear. Alternatively, it may be beyond their ken and wit to appear liberating while practising control or claim they're empowering the public common while keeping power firmly within the House of Commons. If so, they may yet institute the looser standard. In the immediate wake of the government signalling its intention to act on this issue, I wrote:

Without such a definitive standard of wrongful conduct being outlined, or sans an adjudicative body charged to assess serious wrongfulness, what will then have been constructed is not a situation where a recall election can be forced in specific circumstances of serious wrongdoing but where a petition of 10% of the electorate can bring about an election simpliciter. This second approach seems to me preferable, leaving the least room for institutional special pleading and the most room for the electorate themselves to determine what is good or bad representation, what is faithful service and what is unacceptable voting behaviour, having to be justified before the full constituency. Limiting such a power seems to me most happily achieved in terms of the threshold of signatures which a petition would have to marshal, if an election is to be forced. We should expect, however, campaigning groups to use such a power creatively - in ways that aren't I think anticipated at the moment. Equally, in order to reach such thresholds, the formation of strange and poised coalitions of interest is a distinct possibility. 

However, for the reasons outlined above, the Liberals must now be acutely conscious that this liberating legislative map includes the caution "tharr be dragons". The party is stalked by a number of predators with a particular taste for heavy-laden Liberal merchantmen, discreetly trying to cut an electoral profit. Harried by pyratical plunderers, fearing to veering over the jagged shoals of defeat, eyes nervously flickering at every eddy troubling the political waters, conscious that a devouring serpent could at any moment erupt from the depths and gulp down their jolly boat. La mer est si grande et ma barque est si petit.

If so, their only reasonable (for which read self-interested, sleekit, cunning) means of combining a more substantial reform with not seeing their representatives put to the question in recall elections is to defer, defer, defer. This despite the explicit timeous commitments of the Deputy Prime Minister and the coalition agreement. Such things are hardly unknown, after all. Justifying the slowness is perhaps more problematic. For example, nuanced more complex rules require much more assessment, drafting, and re-drafting efforts - which might more readily justify delay. If, by contrast, the government is minded to adopt a broader, simpler approach to the circumstances in which electors can force an extraordinary election - the argument of delaying complexity is less readily deployed. In that context, you might well think that it is not accidental that Ministers are leaving detailed questions on the proposal to stew at a certain level of generality, being at best evasively bland on the issues...

15 November 2010

Will you Go Laddie Go?

“... the paradox facing women in Scotland is that the debate on nationalism in Scotland has ignored gender, and feminist debates on nationalism have ignored Scotland.” Breitenbach, Brown and Myers, 1997)

Over at Bella Caledonia, they've been having a week long celebration of women writers which commenced with a piece from Caitlin O'Hara, who asks two questions which I suspect reflect the discussion at Positively Independent. O'Hara asks, firstly, why is the image of Scottish nationalism so male? and secondly, why do fewer women support independence? Contrawise, Lena the Hyena is less convinced by the idea that Scottishness is hegemonically masculine:

"Historically women have been engaged in all kinds of causes and movements during very masculine periods of history i.e. throughout the whole of time. Women support and engage with struggles for what they have to gain through them. There has to be a reason for participation. Surely it doesn’t matter if the independence message comes in a male or female voice. It is what is contained in the message that will spark an interest or not."

Joan McAlpine responds by suggesting we should focus on the "cultural reasons why men are more likely to be attracted to independence than women.", contending that perceptions are "not about gender representation" in institutions, but instead should focus on the "social factors". Among these, she argues that "Women are more emotionally driven, they have strong ties to friends and family in England" and that it is crucial that the independence campaign acknowledges these bonds." Moreover, Joan plucks out a few

"cultural issues that could explain the gender divide. One is football. While more women are now interested in the game, it does remain a predominantly male obsession. Supporting the Scotland team is an expression of cultural nationalism that many men absorb as boys".

I read these contributions with interest, not least because they echo many issues sketched elsewhere before.  I was particularly struck by the extent to which the contributions at Bella echo an edition of Scottish Affairs from more than a decade ago, in 1997. In her introduction on gender and national identity, Alice Brown writes about the ways "in which the discourse on national identity and nationalism itself tends to be gendered, often excluding both the experience and contribution of women." In a pre-devolutionary political context, she argued that this could be:

"...illustrated by examining the data from the Scottish Election Survey carried out at the last general election which demonstrates a gender gap in the constitutional preferences of men and women and the way in which they describe their identity. More women than men stated their support for a Scottish 'Assembly' (52.5% as against 46.1%), while more men than women preferred independence in the European Community (20.7% compared to 14.1%) and also total independence (7.2% men and 4.3% women). Asked to say which statement best described how they saw themselves, more men than women described themselves as 'Scottish not British' (20.7% as against 18%) and 'Scottish more than British' (42.9% versus 37.7%). However, more women than men saw themselves as 'equally Scottish and British' (36.5% women and 28.5% men). This is just one example of the way in which issues related to national identity and nationalism may be interpreted differently by women and men. The point is that we have little understanding of the explanations for such differences and whether or not they would be reproduced if we examined other indicators."

In the same number, Breitenbach published ‘“Curiously rare?” Scottish women of interest or The suppression of the female in the construction of national identity’. Engaging with the partialities of the historical record, Breitenbach speaks about the historical elision of women and takes Hugh McDairmid to task for his claim that “Scottish women of any historical interest are curiously rare. Our leading Scotswomen have been almost entirely destitute of exceptional endowments of any sort”.  On Joan's issue of football, I thought you might be particularly interested in this paper by Dr Irene Reid, published in 2004, which examines the issue much more concertedly, entitled ‘“What about the flowers of Scotland?” Women and sport in Scottish Society’.  In the second edition of his Understanding Scotland: the Sociology of a Nation (2001), David McCrone reiterates Alice Brown's argument, but draws on different opinion-research to rebut her central contention. There is, he suggests:

‘a general assumption that women have a different relationship to national identity from men, that the iconography of Scottishness is so overwhelmingly masculine – war, work, football, tartan and so on – that being Scottish is not open to them … analysis of the survey data does not support this. In each case, more women than men opt for Scottish identity if asked to choose’ (p. 168).

We could exchange figures all day and invest our doubloons in study after study. For myself, I find McCrone more convincing, not least because the differences Brown outlined don't always strike me as particularly significant (a word used here in a resolutely unstatistical sense). Indeed, what seems to me to be the more interesting question is how people conceive of the ‘alternative ways of being Scottish’ (McCrone 2001, 144), rather than asking them brute binary questions demanding affiliation one way of t'other. This more nuanced, contextual, qualitative approach towards gender analysis is still in a nascent stage in Scotland. Academically speaking, whether researching the social lives of contemporary Scotland or its historical worlds, Scottish gender analyses are transdisciplinary, unfocussed, scattered. 

'A constant feature of writing on women in Scotland is a lamentation of the fact that there is so little work on the subject. It would indeed be true to say that many studies of Scottish society, history and culture have been gender blind, and that it is only recently that this is beginning to be remedied through the development of a feminist analysis’ (Breitenbach et al. 1998, 44)

I am equally conscious that a pro-feminist male writer ought to be cautious about how he engages with these discussions. Some feminist writers go further, arguing that "the authorisation of men as critics and speaker for feminist concepts indicated the victory of a male feminist perspective that excludes women" (Modleski 1991, 14). There is something deeply paradoxical about men who adopt a feminist analysis who then employ this analysis to recover the patriarchal dividends and recommence lecturing women on what they ought to be. In short, they forgo a chauvinist theory but not their chauvinist practice.  This character has innumerable clones in other settings and movements. Consider the  phenomenon of the alfalpha males of the political left, who may talk about emancipation and freedom from oppression, but in the aggressive, lecturing accents of tyrants.  This is at its most problematic when one meets (often) young women, conceptually thirled to a post-feminist story, who often prove highly resistant to the discussion of any social phenomena in terms of gender.

However, in the interests of brevity, I thought I'd pick up on one issue raised in all of the pieces at Bella - the male, Scottish masculinity and "its" relationship with national identity and constitutional attitudes. My case is it is useful to recognise that the concept is no less problematic and in trying to understand why women may think differently about these issues, we should be exceedingly cautious about rebuilding and maintaining the hackneyed stereotypes about masculinity which dominate our public discourses about gender and Scottishness. The issue first struck me particularly strongly in the reading of a Scottish “glass-ceiling” article, first published in the Sunday Times in 1996. The discussion focussed on “high powered” classically bourgeois occupations and the relative absence of women promoted into such circles. Barbara Littlewood afforded this analysis which neatly captures many of the problems about talking about masculinity in a Scottish context:

Scotland’s culture is very macho, the images of working-class culture are masculine and don’t portray women very positively. There is an admiration for machismo that’s difficult to break through.” (My emphasis) 

What was striking about this analysis is how impertinent it seemed to the issues being discussed. The article concerned commercial executives, higher-echelon professionals. More pointedly, in a single sentence, Littlewood (presumably somewhat unconsciously) suggests that Scottish masculinity can be unproblematically located in (or conflated with) working class masculinities. Others have noticed this phenomenon before. Joan and Caitlin’s references to manhood, masculinity, being very male – can be read as drawing precisely on this ‘prevalent Scottish myth of an aggressively dominant masculinity, played out against an industrial backdrop’ (Scullion 1995, 179).

Interestingly, the idea of a hegemonically masculine Scottishness and hegemonic conceptions of masculinity seem strongly connected. Christopher Whyte has described the ‘representational pact’ of the Scottish middle classes, manifesting as the ‘demand on the part of the Scottish middle class for fictional representations from which it is itself excluded; a demand, in other words, for textual invisibility. This would connect with the widespread perception of the Scottish middle classes as ‘denationalised’ as less Scottish in terms of speech and social practice than the lower classes. The task of embodying and transmitting Scottishness is, as it were, devolved on the unemployed, the socially underprivileged, in both actually and representational contexts’ (Whyte 1998, 275). McMillan writes specifically about the bourgeois Scottish man, ‘encouraged through schooling and convention to anglify his speech, such distance from the ideal proletarian type results in feelings of both denationalisation and feminisation. He may be economically empowered, but if he has any investment either in national identity of a sense of manhood, or both, he must disavow his lack through identification with working-class forms’ (2003, 69 – 70). For myself, I think this assessment is too extreme. Although subordinated as part of the national story, there are many male historical figures who furnish resources by means of which the questing effete bourgeois Scotsman, without any passion for sport (for the avoidance of doubt, this is a fair description of yours truly), can resist this logic of denationalisation, drawing strength from the memory of David Hume, Adam Smith, Robert Louis Stevenson and so on. Equally, by unweaving this ideological woof and questioning the absurdly stereotyped way we talk about masculinities at a Scottish level, we're alerted to the other questions we ought to be asking. What about the role of place in the construction of gendered and national identities? How might this differ in Scotland's different "city states"? What about the masculinities of rural Scotland, fishing Scotland, islander Scotland, gay Scotland? - and so on, and so on.

So Joan's question recurs. We know the figures. We know that fewer women vote for political nationalism than men. To be clear, I'm resolutely not suggesting that this subject should be exclusively or primarily addressed as an issue of masculinity. However, if one conceives of gender concepts as being related to one another and mutually transformative, it is important to recognise that the maleness invoked in these discussions on independence and women is not in itself unproblematic, unambivalent, easily universal. Nor should I be taken to imply that it is the suffering, white, bourgeois, heterosexual Scottish men who we should really be feeling for. Women's subordination in the semiotics of Scotland is undeniably far more radical and consequently demands much more attention and emphasis. My point is that we shouldn't take the analytic turn of imagining this as a women's issue which reifies rather than subverts "hard man Scotland". If we look beyond the tropes of Scottish masculinity - not as uninteresting or invalid in particular parts of the nation, but as a wildly skewed representation of the whole - we can pose exactly the same questions Joan, Lena and Caitlin ask about women and independence. We can try to understand the many different ways in which folk theorise, imagine, negotiate, reject or escape the connection between Scottish national identity and gender and  the struggles of definition and self-definition involved.

14 November 2010

Simplify me when I'm dead...

The poet Keith Douglas died during the invasion of Normandy on the 9th of June, 1944. He was only 24. On this Remembrance Sunday, I wanted to quote from a couple of pieces of his. You may not have read them before. Compared to the poets of the First War, Owen or Sassoon, it is my impression that Douglas' work is rather less well known. Two selections, then, the second considering remembrance and what is lost when the lights of consciousness flicker out - and what is left behind in the memory, with its ambivalent, shrinking recollection.  The poem strikes me as fundamentally a friend of remembrance, however sketchily it may  be able to recall the subjectivity of each person who has come to dust in war or who dies in peace. It is also a friend to life's individual detail and history, behind anonymity, lost. The "minute men" recalled, attenuated, through the shrinking lens of memory nevertheless keep up an insistent refrain: remember me when I am dead. Firstly, however, I wanted to quote Douglas' chilling exegesis of combat, in a section from How to Kill:

Now in my dial of glass appears
the soldier who is going to die.
He smiles, and moves about in ways
his mother knows, habits of his.
The wires touch his face: I cry
Now. Death, like a familiar, hears

and look, has made a man of dust
of a man of flesh.

And secondly:

Simplify me when I'm dead
~ by Keith Douglas 

Remember me when I am dead
and simplify me when I'm dead.

As the processes of earth
strip off the colour and the skin
take the brown hair and blue eye

and leave me simpler than at birth
when hairless I came howling in
as the moon came in the cold sky.

Of my skeleton perhaps
so stripped, a learned man will say
'He was of such a type and intelligence,' no more.

Thus when in a year collapse
particular memories, you may
deduce, from the long pain I bore

the opinions I held, who was my foe
and what I left, even my appearance
but incidents will be no guide.

Time's wrong-way telescope will show
a minute man ten years hence
and by distance simplified.

Through that lens see if I seem
substance or nothing: of the world
deserving mention or charitable oblivion

not by momentary spleen
or love into decision hurled
leisurely arrive at an opinion.

Remember me when I am dead
and simplify me when I'm dead.

11 November 2010

A Jacobin justification of Millbank...

Yesterday's events in at the impressively well-attended student fees protest in London reminded me of this scene from Marat/Sade (1967). An English-language film adaptation of Peter Weiss' pithily entitled play The Persecution and Assassination of Jean-Paul Marat as Performed by the Inmates of the Asylum of Charenton Under the Direction of the Marquis de Sade, amongst other talented actors who are no longer with us, a young Glenda Jackson appears as a narcoleptic Charlotte Corday, the young Girondin woman who finally puts pay to Marat's inflammatory revolutionary rhetoric and lost her head for her trouble. In this scene, the late Ian Richardson - playing the inmate of Charenton asylum playing Marat (all rather meta, you must admit...) - explains the plight of the people. Over at Bright Green Scotland, Adam Ramsay basically takes up this Jacobin defence of a bit of malicious mischief at the student protests. I'm not a chap given to such tactics myself, however I think we ought to take the gist if not the detail of Marat's challenging question very seriously "What are a few looted mansions compared to their looted lives?"  Its a question of proportion. In the context of today's utterly absurd ruling in the Twitter Joke Trial, it probably behooves the cautious blogger to make plain he is not proposing French Revolutionary insurrection. I don't have enough Phrygian caps to go around anyway - and Millbank Tower is hardly the Bastille, no matter how sorry I might feel for the benighted Tories consigned to its Stygian vaults.  The national news model is familiar - excited by trivia, bored by substance; stirred up by gossip, apathetic shrugs in the face of real injustice. 50,000 folk turned up to vindicate their fears and reject the schemed hike in student fees yesterday. Its strikes me as a thin-as-gruel cynical wisdom, that congratulates itself on being more offended by a few fractured windowpanes ...

A good excuse that, to add a second unrelated scene - Marat and De Sade's Conversation concerning life and death. It also includes a vivid, monstrous description of the execution of Damiens, which I dare say a few of you will have encountered before in Foucault's Discipline and Punish...

10 November 2010

Wednesday is gallimaufry day...

The girning tyrant Work is laying on the lash and issuing orders this week, so a hasty gallimaufrous blog is called for this Wednesday morn. Firstly, I was delighted to read this piece over at Bella Caledonia on "Independent Women". Caitlin O’Hara asks:
(1) why do fewer women support independence? (2) why do fewer women take part in public political discourse? (3) What role models are there in the public eye that Scottish women could aspire to? and (4) Why is the image of Scottish nationalism so male?

Fascinating questions all, each in its way calling for a substantial disquisition. We'll only get anywhere if we discuss these issues - winkle out our ambivalences - notice what goes unnoticed in our social world, the mute and noisy ideologies of gender, with its divisions, permutations and ambivalences. Reading O'Hara's analysis, I'm reminded of Holyrood's moves to rename their Committee rooms after Scottish worthies. At the time, I managed to acquire the full list of names which the parliament considered. Its worth recalling that no Scottish women were included in the list first proposed but Holyrood finally went for:

1. Robert Burns
2. Mary Fairfax Somerville
3. Sir Alexander Fleming
4. James Clerk Maxwell
5. Adam Smith
6. David Livingstone

Secondly, to Alan Trench on Devolution Matters, who writes about Westminster's Public Bodies Bill under the headline "Getting legislation seriously wrong". The Bill is the sputtering taper that will send the consuming flames leaping through Britain's dreaded quangocracy. However, it appears as if Cleggy, lit match clutched in paw and eyes wide with the prospect of arson, hasn't reasoned through the significance of Britain's decentralised state and how Westminster unavoidably interacts with devolved authorities in the schemed fire-raising. Argues Trench:

"This is evidently a case where the UK Government is legislating in haste, or trying to.  It’s in such haste that the leisure to repent is occurring while the bill is still in Parliament.  (It also seems not to be the only case where Nick Clegg has found himself swamped by the intricate nature of government.)  But to adopt such a heavy handed and constitutionally inappropriate way of dealing with the devolution aspect of this is a vivid reflection of the limited interest of the Coalition government in getting these right."  

Thirdly, to Mike Dailly of the Govan Law Centre, who writes in the Firm about a truth almost universally acknowledged among Scotland's more progressive lawyers, but a bit of a trade secret. In Cadderland he writes:

"Allow me to say what many senior Scottish lawyers think but are reluctant to broadcast: when it comes to protecting civil liberties and human rights we don’t generally rely on judges in Scotland; nor do we rely on our politicians, generally speaking, either side of the border. We rely on judges in London. The English Court of Appeal is considerably more progressive than the Court of Session, and quite frankly, the UK Supreme Court has done us a considerable service with its judgement in Cadder."

Maggie Scott QC, no doubt enjoying her liberty after Tommy Sheridan dropped his briefs, pens a similar jeremiad in the Scotsman ~ "All those in favour of unfair trials, please stand up"
"... I consider it my duty to pursue a client's constitutional right to appeal to the Supreme Court to enforce his/her human rights. I have regrettably found it necessary to take the long road to London on a number of occasions, because of the failure of the Scottish courts to secure those rights. The very fact of this complaint highlights the misplaced hostility involved here. In fact, the decision in Cadder demonstrates the need to have Scottish access to the Supreme Court in order to properly protect human rights. If such access is denied then the Scottish people - alone within the UK - will be truly disadvantaged."

It is vital for independence-minded Scots to admit frankly, candidly, that the separate institutions of Scots Law may not be the immediate jewel of our separate identity, but a millstone around the neck of our progressive politics. In this respect, we have reason to recollect the fate of the unfortunate Thomas Muir...