Take the following public policy issues which assumed a certain prominence since the last election. On higher education, the abolition of the graduate endowment was passed only with the votes of the multi-hued ensemble of the SNP, the brace of Greenies, Liberal Democrats and the solitary Labour figure of Elaine Smith (whether by error or design). On two issues I've discussed extensively before, short term prison sentences and proposals to install a mandatory(ish) minimum for knife possession, a similar poised coalition formed, 65 voting to install a presumption against prison sentences of less than three months. More importantly to my mind was the 63-61 vote to reject the sticky tawse-fantasies of Tory and Labour members, who wanted to land every soul detected with a stiletto concealed in their garter in prison for between six months and two years at least.
Now, you might suggest that Labour and Tory growls, and "soft on crime" girns are a phenomenon of opposition, a cheap shot, cheaply taken, without much commitment. That is certainly a view some Labour folk have expressed to me. In the comments after Monday's post juxtaposing Richard Baker's remarks with those of his party leader, I noted that one Labour-supporting soul suggested to me that:
"... with the exception of Baker they [the Shadow Cabinet] all know the "carry a knife blah bla blah stuff is all hot air. I think get feel given the sheer number of empty pledges in the Nats' manifesto last time round, they're allowed this one..."
Now, I am perfectly willing to concede that it may be that Baker is simply the blockheaded dunceling whose blithe brand of law and order nastiness is being cunningly employed to front a venal and consciously dishonest Scottish Labour operation. After this post on the subject, I asked the Reverend Ewan Aitken, standing for Labour against Kenny MacAskill in Edinburgh East, for his view. He did me courtesy of responding and responding in a tenor which is surely foreign to his party's justice spokesman. Either way, whether Labour are merely feigning to be prison fetishists, or are actually uninterested in the vaulting prison population, keen only to increase it and fig the consequences, neither redounds to their credit. Let us proceed, therefore, on the assumption that they mean it and would seek to employ any combined majority to fetter judicial discretion and plump Scotland's already portly prisons. In the current parliament, on a number of issues, there is a very slender majority, pursuing a more liberal line. We shouldn't overstate this tendency. The SNP government have consistently brought forward vague, broadly-drafted criminal legislation which in my view, too often errs too strongly on solving definitional problems by resorting to prosecutorial discretion. Concerns expressed at the Committee stages of scrutinising Bills often collapse under the conciliatory assurances offered by senior police officers and procurators fiscal that certain offences would only be used sparingly to sting the real offenders and proper bastards, and the legislation is meekly passed. Paradoxically, politicians are only willing to do so on the basis that the legislation will go substantially unenforced. Incidentally, this isn't a phenomenon limited to Holyrood. Alex Massie notes a similar curious incidence of it in the case of control orders.
We should be cautious about how discretion is envisaged here, and how and why it can be problematic. One interesting thing revealed by popular reactions to the case of H.M. Advocate v. Tommy Sheridan is that the public really don't realise, in general, that discretion about who to prosecute is a structural feature of our everyday criminal justice system and its routine decision-making. Indeed, one can probably say that case selection is actually a necessary feature if we are to have any criminal justice system at all, given the limited resources we are willing to commit to the enterprise. This misunderstanding is aided by a particular version of normative rule of law arguments, citing equality before the courts and envisaging a seamless system of delineated rules that ostensibly removes any leeway from the decision-maker. It dreams of an iron cage in which discretion might be locked away, to operate without fear, favour, feeling. In practice, however, this vision isn't plausible at all - and tends to exaggerate the discretionlessness of applying general rules to particular situations. It is, nevertheless, a political argument one can make. However, it is one which faces particular practical hurdles and to reorganise the state around the principle would be far more revolutionary (and probably less successful in eliminating, as opposed to shifting, discretion) than most who make the argument in its simple form suppose. All that said, I think exceedingly vague laws remain problematic on their own terms, even if discretion is embraced as a necessary, unavoidable feature of decision-making. Both the SNP and the Liberals can certainly claim no distinct virtue on this front, in their scrutiny of legislation. Indeed the absence of any real discourse in the SNP about the liberties of the subject, practically enshrined in a criminal law which avoids over-criminalisation and by dint thereof, the excessive empowerment of police and prosecutors by resorting to vague statutes - this has long concerned me and strikes me as a major political deficiency.
However, to return to the thrust of the article, on crucial political issues in this parliament, Holyrood's slender Liberal-including majority has been crucial to prevent Baillie Bill Aitken's and Richard Baker's sincere or insincere spittle-flecked penal preferences on the nation. Similarly on the issue of the graduate endowment. I can thoroughly sympathise with popular disgust at Liberal collusion and participation in the Westminster coalition's marketisation enterprises and want of sensitivity to other, vital values. It strikes me, however, those who hope to enjoy unalloyed and untroubled glee about any Liberal collapse in Holyrood - but do not share John Lamont or Iain Gray's conceptions of criminal justice policy, or education - may not find the middle ground of the new parliament terrifically satisfactory.