28 December 2013

Musical Chairs

Tricia Marwick is a lady with a plan

The Scottish Parliament's presiding officer knows the institution like the back of her hand. And all is not, in her view, as it should be. In the New Year, she will put proposals to MSPs, providing that the chairs of Holyrood's committees should not be promoted and executed according to the whims of party whips, but should instead be selected (a) to reflect the parties' balance of representation in the chamber and (b) elected by secret ballot of the whole chamber.  

The idea is to give committee chairs an independent dignity in their roles. Rather than being the preserve of party placemen and women, reliant on the favour and whim of party leaders, the hope is that direct election will stiffen MSPs' sinews, encouraging a more critical, less cravenly partisan approach to the deliberation and work of Holyrood's committees. Or as Marwick told the Herald this week:

"I believe the responsibility of conveners of the parliament should be first and foremost to the parliament. How do you enshrine that? The only way to do that is to get the whole ­parliament to elect the conveners so they derive their authority and mandate from the parliament itself and not through the parties. The very act of being elected by the whole parliament gives a message to the conveners and everybody else that the conveners are there primarily to act in the interests of the parliament and not their own ­political party."

Marwick takes her inspiration from 2010 reforms introduced at Westminster, which saw MPs casting ballots for their preferred select committee chairs, with the seat allocated according to the Additional Vote system (ironically, you might well think).  The division of booty is secured by allocating chairs to particular parties, and only permitting candidates from that party to stand.  In 2010, this meant that Liberal Democrats were in contention for two chairs, Labour nine, with the Tories snaffling the remaining twelve. Eight chairs were uncontested, the rest being determined by run-offs between two and six candidates (with competition fiercest for the Labour-controlled Public Accounts Committee. Ex-minister Margaret Hodge won out over Hugh Bayley in the fifth round by just six votes).  No North Korean style elections these: the outcomes can be close-run things.

Marwick's proposals seem sensible and modest, but a few obvious questions suggest themselves. One: isn't there a risk that these reforms will transform an explicitly leadership-controlled appointments process into one where parties can still work their will behind the scenes? Tricia has not yet published full details of her proposals, but in Westminster, would-be candidates must be nominated by 15 MPs or 10% of their parliamentary party, whichever figure is lower, nor can MPs nominate more than one candidate for the same chair.  

In a smaller, proportional chamber like Holyrood, there are far fewer votes going begging, and far fewer candidates, having stripped out ministers and their shadows from consideration. Never underestimate the power of a quiet word in the ear.  You know the sort of thing: "Please don't stand, John. For the good of the party." "Johann would really appreciate it if you gave Jackie a clear run at this one." "If you nominate that berk, Willie will take his mellon-baller to your kidneys."  

We might hope that our parliamentarians will put aside such calculations, and support the most able candidate for the role. But if Holyrood adopts strict threshold requirements for nominations, it seems likely that these informal mechanisms will allow party leaderships to continue to influence the choices put before parliament. Only the very naive would assume that politicians - a noteably scheming, climbing band of folk - could resist the temptation to meddle. 

Two: I wonder to what extent is the partisanship of Holyrood's committees is caused by the lack of independence of their chairs? And three: to what extent is that lack of independence really attributable to the process of their appointment? MSPs are generally, of their natures, partisan creatures. Unlike the serried, gossipy, idling ranks of Westminster MPs, the party caucuses in Holyrood are pretty cosy affairs. Propotionality also seems to encourage party discipline, in government and in opposition. 

Between 2007 and 2011, when the minority administration faced knife-edged votes, a stray vote here or there could prompt high drama. The SNP majority has shrunk back since 2011, no doubt focussing minds on the government benches on the unaffordable luxury of dissent. The independence referendum imposes its own overriding demands of unity. On the Labour side, ranks depleted to thirty-seven members of which fourteen serve in party leadership roles (38%), observing the line-to-take and abominating Salmond and all of his works remains a unremitting duty. There just aren't enough Greens or Liberal Democrats to form a decent internal schism.

Moreover, Holyrood still lacks any real discourse of the backbench parliamentarian, ploughing an independent-minded, dissenting  furrow. I can't think of the last time, in the justice brief, when the majority on the Justice Committee sounded any meaningfully critical note concerning a flagship government policy. While the idea briefly flared into a sort of life when the committee considered the Scottish Government's Football Bill, in the event, all five of the SNP's MSPs yielded up their votes, despite the fact that their investigations into the legislation had blown a series of holes in the government's case. It'll be interesting to see what Christine Grahame and her colleagues make of the corroboration debate.  Though some of the parliamentary scrutiny is woeful, it is not as if our MSPs don't have it in them.

But none of these are really reasons to be skeptical about Marwick's proposals. If anything, they all point to the importance of cultural factors. Structural changes may not be sufficient, in and of themselves, to transform the parliament's approach. But they can underscore and help foster important aspirations about how committees can and should conduct themselves - and start to challenge the excesses of unthinking partisan loyalty, whichever side of the chamber you sit on.  

27 December 2013

2013: the year in review

I'm not one of those people with a very keen sense of time. Left to my own devices, I trauchle along day by day. But as the shutters come down on 2013, I thought it might be interesting to peer back through the last twelve months' back catalogue of writing on the blog, and revisit the most popular articles of the year.

Here as elsewhere, the independence referendum debate has predominated. You don't need to be the Brahan Seer to see that 2014 is doomed to be cut from the same cloth. But it is heartening to see that the constitutional debate hasn't entirely muscled out every other tale, issue and question.  Without further ado, to the rankings.

There's a distinctly partisan flavour to the top two entrants on our leaderboard.  In at number one, a post from September, taking aim at the metropolitan pundits, seemingly desparate to regard themselves as the tragic victims of the Yes campaign's pernicious brand of ugly, ethnic nationalism.  Lost and confused? Me too.

1.   Victim Fantasies

Coming in second place, another vinegary blog from November, laying into Scottish Labour's epistemic closure and grim psychology of political entitlement.

Another autumnal piece takes the bronze.  At the middle of November, the tealeaves were disturbed by the scandal of an SNP minister, questioning the impartiality of an academic. For Better Together, with represented an outrage and a scandal.  Drawing on my own experiences on Newsnicht last year, I take a potshot or two at the humbug of their selective interest in academic freedom.

In fourth, a more controversial entry, perhaps, from April.  The SNP has put skepticism about the likelihood of further devolution after a No vote at the heart of its pro-independence message.  Vote Yes, or get nowt.  But is all this really convincing? Is there a risk of Nationalists falling prey to our own myths - myths we can't reasonably expect the rest of the country to share?

Another Labour-bashing blog ranks fifth (are you detecting a theme here)? In Scottish politics, perhaps the most significant development of 2013 was Johann's junking of her critique of the consequences universalism during the Dunfermline campaign.  But how well did such a critique sit beside Ed's headline commitment to freeze energy prices? How will shifting the cost of freezing the Duke of Buccleuch's heating bills onto general taxation help frozen grannies? I took a critical look.

At number 6, we are back on the devolutionary theme, this time, with the Tories.  If the Better Together parties are to persuade the public that more devolution is a foregone conclusion with a No vote, their proposals will have to be credible and achieable. For Ruth Davidson, assisted by a single Tory MP at Westminster, this means persuading her English and Welsh colleagues to support the devolution of more powers.  But how well does this sit beside the Scottish Tory leader's efforts to emphasise her distinctiveness?

I'm pleased that at least one more legally-inflected article made the top ten.  This one is a bally scandal.  In 2013, the Court of Criminal Appeal confirmed that it remains the law of Scotland, that raping your partner, wife or girlfriend is less blameworthy than sexually assaulting a stranger, and should attract a softer sentence.  Regrettably, this outrageous proposition was only covered in my blog - and in a piece in the Scotsman.   

The constitution took over at number 8.  The SNP leadership's monarchism is a source of a certain vexation to republican elements of the Yes campaign. In this piece, I commend hard-headed republican scheming over pointless grousing. If we carry the referendum in 2014, the new constitution represents a marvellous opportunity to adopt a republican constitution - albeit a crowned one.  Republicanism ought to be about more than what we call our head of state. 

Bugger all of these Nordic comparisons: shouldn't Scottish nationalists be talking about Ireland more? And but for the odd BBC4 drama, how many folk really know or understand Sweden or Denmark? Aren't our close comrades over in Eire a far more meaningful parallel to draw? The ninth blog in our series makes the case.

And sneaking in last, in tenth place, is perhaps the year's most personal post. While I've supported the equal marriage campaign from the get-go, a couple of experiences this summer emotionally radicalised me for the cause.  It was one of the more emotionally-involved pieces of writing here over the year, but for me, represented one of 2013's most interested changes of heart, if not changes of mind.

And that's us for 2013! It's been an eventful one. Let's hope 2014 keeps to the Chinese curse, and that we continue to live in interesting times

24 December 2013

"What's to-day, my fine fellow?"

Who's that knocking on the window, 
Who's that standing at the door, 
What are all those presents 
Laying on the kitchen floor? 

Who is the smiling stranger 
With hair as white as gin, 
What is he doing with the children 
And who could have let him in? 

Why has he rubies on his fingers, 
A cold, cold crown on his head, 
Why, when he caws his carol, 
Does the salty snow run red? 

Why does he ferry my fireside 
As a spider on a thread, 
His fingers made of fuses 
And his tongue of gingerbread? 

Why does the world before him 
Melt in a million suns, 
Why do his yellow, yearning eyes 
Burn like saffron buns? 

Watch where he comes walking 
Out of the Christmas flame, 
Dancing, double-talking: 

Herod is his name.

Weird, huh? I don't know how many mugs of mulled wine Charles Causley had scooped when he composed Innocents Song, blending Santa with King Herod's notorious Massacre of the Innocents from the New Testament. But there it is. A winter's tale, with just a hint of darkness against the twinkling candlelight. 

A little horror to leaven the jollity is traditional around Christmas. Dickens, inevitably, but also the atmospheric and otherworldly short stories M R James.  This year,  Mark Gatiss has adapted his Tractate Middoth for the BBC.  Youtube yields up other unsettling delights from the back-catalogue. 

Michael Hordern's splendidly detailed, greedy, mumbling professor in Whistle and I'll Come to You (1968) almost makes up for his appalling, emotionally-empty performance as Prospero in the BBC Shakespeare version of the Tempest.  And although the recording quality is a bit iffy, Number 13, masterfully but simply narrated by Christopher Lee, is fine unsettling stuff for the hour of the wolf, dram trembling in hand.

I hope it has been a good year, and my thanks to all the folk who've taken time to lend their lugs to our podcasts and to read this blog over the past twelve months. I hope both have been diverting.  As the Stygian gloom of a December afternoon draws in, all that remains is to wish you all, all of my readers, a very Merry Christmas tomorrow.

May Santa fill up all your coal scuttles to the brim.

23 December 2013

What does "sovereignty" of the people of Scotland mean?

David Torrance has a column in this morning's Herald, "Recognition of sovereignty need not threaten UK state."  In it, David takes aim at what he perceives to be the SNP's absolutist and old-fashioned thinking about that slippery term, "sovereignty", arguing:

"In practice, however, the notion of "absolute" Westminster sovereignty has been on the wane since 1973, when not only did the UK join the European Economic Community (thus ceding sovereignty to a wider union) but also sanctioned a "border poll" in Northern Ireland. In a precursor of next year's independence referendum, the latter invited the people of the six counties to choose their constitutional future (in or out of the UK) via a referendum."

"Thus Westminster conceded that the province was sovereign, as in fact it had been since opting out of the Irish Free State some 50 years before. Similarly, the devolution referendums of 1979 and 1997 acknowledged sovereignty in Scotland and Wales. Indeed, throughout the 20th century Parliamentary sovereignty was ceded repeatedly. The tiny Sultanate of Brunei only became independent from the UK in 1984, while this year David Cameron has emphasised the sovereignty of Crown subjects in the Falklands and Gibraltar."

Certainly, different political claims were advanced and recognised in these accessions and referendums - but why should we conceptualise all of them as exercises in recognising sovereignties?  Legally, much of this is problematic. But I'm conscious that law need not - and should not - have the last word on our political thinking.  But even without privileging a legal analysis, I'm not convinced that Torrance's expansive approach to defining sovereignty is terrifically helpful.  

Firstly, it is useful to bear in mind that the concept of sovereignty has multiple traditional senses and meanings. We might be talking about the sovereignty of a state recognised by international law. If you are not a state, you cannot be sovereign in this sense. Alternatively, we might want to focus more narrowly on recent British constitutional traditions, in which parliament is sovereign. Here, sovereignty relates to the idea that parliament may make or unmake any law, and its determinations about what the law ought to be generally cannot be challenged in court, as the validity of American statutes may be constitutionally challenged before their Supreme Court. 

Here, the sovereignty of parliament primarily regulates the relationship between parliament and the executive and judiciary, and between one parliament and its successors. In Torrance's third sense, we have the "Scottish constitutional tradition" of popular sovereignty, echoed by the SNP and others. Despite my Nationalist sympathies, I find much of this is pretty dubious intellectual history, tracing an questionable line from a wilful misunderstanding the oligarchy defended by Declaration of Arbroath, through misconstructions of the poisonous anti-Catholicism of the Claim of Right of centuries later - to the anti-Westminsterism of the Scottish constitutional tradition as promoted in many Nationalist circles today.  I'll vigorously defend the political principle of popular sovereignty, but lord deliver us from the ridiculous fantasy of Scotia's medieval democrats.  

The 1997 devolution referendums did not recognise any sovereignty of the Welsh or Scottish people in any legal sense, nor did joining the EU "cede" - in the sense of giving up, or alienating - parliament's sovereignty either.  Powers devolved are powers retained.  De facto it might be politically difficult for Westminster to reverse legislation adopted by Holyrood, or to abolish it outright, but de jure, the competence exists and the courts would enforce it. The same goes for the law of the European Union, which enjoys supremacy over domestic law - but for the purposes of a UK constitutional analysis, only because Parliament itself has assented to be bound by it.

In his lectures at the University of Edinburgh in the early 2000s, Professor Colin Munro gave us the traditional, if rather starchily Victorian view of Albert Venn Dicey: the Crown in Parliament is sovereign. End of. In contrast with his monolithic structure, David sees a flourishing field of different (and competing?) sovereignties.  European institutions take decisions on the scope of our human rights, and shape our ability to move, trade, work and study freely within its bounds. And David is right. Or at least, half right.

In practice, parliament mostly accepts these decisions and submits to these determinations. Holyrood follows its own path, the people decide on devolution through a legislatively-summoned referendum, and will decide on independence to boot. Who the hell is really sovereign here anyway? As Lord Hope observed in the AXA judgment of the UK Supreme Court, Holyrood is a creature of statute and not a sovereign body. Had the independence referendum preceded without the section 30 order, we might all have had cause to understand the consequences of that fact more clearly.  Sovereignty must be about more than having an influence on the political scene, or promulgating laws. The authority to get your way in the last instance matters.

But surely these realities matters more than the nice, pristine constitutional theory-building? I'd sympathise with that, somewhat. The concept of parliamentary sovereignty is a rotten guide to how the British democratic system functions.  But that doesn't mean that generalising the concept of sovereignty is the best way to knit together a better understanding. 

There is a significant risk of sogginess about Torrance's approach. If we're defining sovereignty as any decision taken by bodies discharging public function which are perceived as legitimate, and are complied with - and at its loosest, David seems to be suggesting something along those lines - where's the limit?

For example, the scale of the UK administrative state has developed significantly since the beginning of the 1900s. Ministers command executive agencies and officers, not entirely freely, but with broad statutory grants of powers by parliament.  Theoretically, parliament remains sovereign and the font of all legitimacy - but de facto, the executive has a powerful defining role. If we're being hard-headed realists, we'd note that ministers and their functionaries often get their way, making regulations, establishing the detail of a whole gamut of entitlement schemes. Parliament may be sovereign, but it is largely left to them. Should we see the administrative state as an alternative "sovereignty" too? 

The forces of organised capital have considerable impact on our law-making and policy-setting. Thanks to privatisation and the outsourcing of delivering public functions, the distinction between public and private bodies is increasingly problematic. Should we see boardrooms and businessmen as representing another alternative "sovereignty"? At its loosest, David seems to be referring to all sorts of legitimated exercises of power by "sovereignty".  I can't see what is gained - and much is lost - by generalising our conception of sovereignty in the manner he proposes.

I'd imagine David would want to draw a categorical distinction between these examples and the examples he gives.  But what's the real difference? Territory? Institutional structures? Ghostly ideas of nationality or ethnicity or somesuch? None of these seem - to me - particularly persuasive bases to make such distinctions, once you've plucked out sovereignty's distinctive characteristics, as traditionally understood.  An absolute monarch who takes good advice, and changes her mind, keeps her throne. If she is deceived by influential underlings, she also remains in place.  The quality of the advice she receives is important for the courtier or the calculating diplomat, but it does not remove her crown; sovereignty is better conceived as a thing apart from the eddies and tides which govern its exercise.

I'm also a mite perplexed by the implication that the creation-myth of parliamentary sovereignty should be seen as an outmoded and unrealistic abstraction - worthy enough stuff to inflict on undergraduates in an arid constitutional law seminar - but of peripheral interest for the practical man of the political world. If anything, the last three years has seen a remarkable upswing in the rhetoric of the "erosion of parliamentary sovereignty".  The notion is consistently invoked to criticise the legitimacy of any and every inconvenient ruling emanating from the European Court of Human Rights. Taking them on their own terms, many of the Tories who've manacled Cameron to an EU referendum would offer similar explanations for their attempt to "repatriate" relinquished powers to Westminster.  

Sovereignty's late flourishing is one of the primary reasons for my skepticism about the possibility of further devolution after a No vote.  Britian may not be a unitary state, but the political imaginations of UK politicians and media are ever-more myopic, uninterested in finding ways to integrate our increasingly politically disunited kingdom.

Our zombie broadcasters continue to ignore devolution. We hear incessantly about "the NHS", "the" education system. Recognising even this little complexity - seemingly impossible. Whatever the realities of devolution and distributed power, if a sovereign parliament sees itself and is seen by its main commentators as the only legitimate game in town - woe for the federalist, trying to unearth a new constitutional politics for the United Kingdom. 

You may well wish things were otherwise, but you might as well plant your seed in the desert.

19 December 2013

No #indyref votes for prisoners, Court of Session holds

A snowball's chance in hell. That was my assessment of the chances of prisoners persuading any Scottish court that they were entitled to vote in the independence referendum.  Or more precisely, that to exclude them wholesale from the franchise, as the Scottish Government and Parliament determined to do, was unlawful.

But to court three prisoners went, seeking judicial review of the legislation. This morning in the Court of Session, Lord Glennie handed down his judgment in the case.  As predicted, for all the ingenuity of their counsel, the Addiewell Three didn't win out. 

Counsel for the prisoners argued that the legislation was objectionable on three grounds: ECHR rights, fundamental common law rights, and EU law.  Under the Scotland Act, Holyrood and Scottish Ministers are explicitly bound over to observe both European legal regimes. Any Scottish legislation which clashes with fundamental rights or Union law is no law at all: a powerful tool in the litigant's pocket.

Firstly, citing ECHR rights, Aidan O'Neill argued that the legislation violated Article 10 (freedom of expression) and Article 3 of the first Protocol to the Convention, which provides that:

"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the people in the choice of the legislature."

In the now-notorious Hirst case, the Strasbourg court cited this provision to hold that the UK's blanket exclusion of all prisoners from the franchise (save for untried folk, detained on remand) violated the Convention. As I suggested they might a few months ago, the prisoners argued that there was really no principled reason why we should distinguish between elections to the legislature and referendums. And such an important referendum, too, determining the fate of the nation. As Lord Glennie notes:

"The difficulty for the petitioner, however, is that it has been held consistently both by the Commission and by the European Court of Human Rights that A3P1 applies to voting in elections for the legislature and has no application to voting in a referendum or, for that matter, in an election to elect a president or head of state. There is a long line of cases all to this effect."

How to wriggle off this hook? Here, Aidan O'Neill tried to persude the court strike out more ambitiously, following a scattering of ambiguous signs from the Strasbourg jurisprudence that the European Court might reverse the consistent course of its case-law, pulling referendums within the compass of Article 3 of Protocol 1.  This was a pretty tenuous line of argument at best, and Lord Glennie wasn't buying it. The freedom of expression argument proved equally shoogly. ECHR snowball, duly melted.

Secondly, the prisoners citing "fundamental" or "constitutional" rights, arguing that the right to vote is now part of the Common law. Pulling in a range of judicial decisions from the rest of the democratic world, focussing on Canadian and South African cases, the prisoners cited the resounding language of Justice Albie Sachs to the effect that the universality of the franchise must be a cardinal principle of democratic governance:

"Universal adult suffrage on a common voters roll is one of the foundational values of our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and ineffective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood.
Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity. Rights may not be limited without justification and legislation dealing with the franchise must be interpreted in favour of enfranchisement rather than disenfranchisement."

In a somewhat densely-reasoned series of paragraphs, Lord Glennie held that "though I accept the existence of a fundamental or constitutional right to vote in general terms, I have come to the conclusion that that right does not extend to voting in a referendum." So no joy for the petitioners under the common law either.

Lastly, Aidan O'Neill squeezed in an EU law challenge.  And it'll be familiar to students of the independence debate. Expect the media to may much hay with it.  Lord Glennie summarised the applicants' argument on this score:

[84] The petitioners here contend that EU law is engaged because the outcome of the Independence Referendum will affect Scotland's membership of the EU and the status of Scottish nationals as citizens of the EU. The Referendum is therefore not simply a domestic matter. It affects the EU rights of Scottish nationals entitled to vote in the Referendum in two ways: first, because an independent Scotland would not, for a while at least, be a member of the EU, and therefore individuals resident in Scotland would not have access to EU rights for the period when Scotland was not a member state; and secondly, because Scottish citizens, not being citizens of a member state, for a while at least, would for that period cease to be EU citizens.
The points are separate but obviously closely related. The first of those points, namely that Scotland would cease for a while at least to be a member state of the European Union is predicated on the proposition that Scotland as an independent state would have to apply for membership from outside the EU, and unless and until she became a member she would remain outside the EU. The second point is based on an interpretation of article 20 of the Treaty on the Functioning of the European Union ("TFEU"). That article establishes citizenship of the Union and provides that "every person holding the nationality of a Member State shall be a citizen of the Union".
It goes on to say that citizenship of the Union is additional to and does not replace national citizenship. The argument is that upon the Scotland attaining independence and becoming an independent state outside the EU and applying to get in, Scots who had previously been nationals of the United Kingdom but had become Scottish nationals would no longer be nationals of a Member State and, as a result, would lose their EU citizenship. The argument assumes that those becoming Scottish nationals would be required to give up their United Kingdom nationality."

Describing the complex issues of fact and law involved in Scotland's relationship with the EU after a Yes vote, Lord Glennie observed that:

"It is apparent from the Crawford and Boyle Opinion that in legal terms there is no simple answer, either in law or in fact. They correctly describe the legal situation as sui generis, pointing out that the various EU Treaties do not specifically cover the point. But the difficulty goes further than that. As is apparent from the terms of their Opinion, and as is perhaps obvious to anyone with even a passing acquaintance with the arguments for and against, the decision on continued membership will not ultimately be decided solely as a legal question but will, to a greater or lesser extent, involve questions of hard politics.
The court is not in a position to know fully what political considerations will be brought to bear on the issue, and with what leverage. Accordingly, to ask the court to decide the question whether upon achieving independence Scotland would cease for a time to be a member of the EU, with consequences for its nationals in terms of their citizenship of the EU, would be to ask the court to predict the outcome of robust and complex negotiations. That is a question largely of fact. It is not a task which the court is equipped." 

With reference to the EU authorities, rejecting the challenge, the Court held that:

"... the Scottish Parliament is not exercising competence in the sphere of nationality. It is not purporting to make a decision about EU membership or EU citizenship. The process which it is putting in place by the independence referendum is not a process which will have any direct impact on the question of EU membership or EU citizenship. The point may arise in the future where decisions are taken which might affect those questions. But that time has not yet come."

So the third limb of the prisoners' case failed too. A comprehensive judgment from Lord Glennie, if not one that will satisfy the three residents of HMP Addiewell, who will remain bystanders as their nation collectively determines its constitutional future. Politically, this is an outcome to be lamented. Legally, it is the right decision.  But one, I fancy, which may have a good chance of being appealled to the Court of Session's Inner House for further analysis.  A setback, certainly, but the game's no bogey - yet. 

14 December 2013

"Bringing Scotland into line with England..."

Making many of the Westminster government's mistakes, but more slowly. It is hardly a spirit-kindling motto for devolution. "Bringing Scotland into line with England" represents one of the most curious tendencies of this SNP government. 

The argument was deployed in 2011 to introduce the offence of incitement to religious hatred north of the border, despite the fact that the party had, in my view rightly, opposed an identical measure, introduced by Tony Blair's government in 2006. England, understandably, is the main comparator for corroboration reform, which will eliminate one of the most distinctive features of Scots criminal procedure. The Scottish Ministers are also taking Westminster's lead when it comes to tribunal reform.

Politically, the fate of tribunals may not stiffen the sinews, or summon up the blood, but they're important.  With the growth of the administrative state after the Second War, tribunals sprung up around the executive like mushrooms, attached to a whole gamut of statutory schemes. The minority - like the Employment tribunal - consider party to party cases, often with legal representation, and closely resemble our civil courts. 

But most concern disputes between citizens and the state. Unhappy with how the Criminal Injuries Compensation Authority has handled your claim? You can take it up with the review tribunal. In dispute about tax assessed as owed? There's a tribunal for that too. Disagreements about social security and child support entitlements, immigration decisions, detentions under the Mental Health Act - tribunals offer a mechanism independently to review a vast swathe of executive decision-making.

In their aspirations at least, most tribunals aim to cultivate greater informality and less expense than ordinary courts for their users. You needn't instruct counsel: people taking cases before them generally need not be legally represented. For many, no fees are levied.  The panels, if not inquisitorial in their approach towards resolving the dispute, adopt a more investigative posture towards it than the classic understanding of a judge in adversarial systems, as a passive arbiter between the parties. 

They also break with ordinary courts by putting experts, not in the witness box before a legally-trained judge, but on the decision-making panel itself. The Mental Health Review Tribunal, for example, includes personnel from medical backgrounds, as well as lawyers. The thinking is that, tribunals will achieve a measure of specialisation in their respective fields, constantly exposed to the workings of the executive departments they review, rather than our generalist judges serving in the civil courts, chancing across these issues once in a blue moon in judicial review.

That's the theory, anyway. The empirical evidence from tribunals offers a considerably more ambivalent picture. Despite the rhetoric of accessibility, many unrepresented applicants understandably approach their tribunal hearing with apprehension. It isn't obvious that a court would be markedly less stressful. Considerable legal formalism and difficulty still marks the decision-making process too.  Kicking lawyers and adversarial legalism out of the system is not without its attractions. But the legal norms being applied by these tribunals can be complicated, and the lack of representation offers only a veneer, an illusion of informality, while many legally unturored applicants still struggle to identify the relevant issues of fact and law around which their case really turns.

However patchily, however unsuccessfully they realise these aspirations, tribunals shouldn't be thought of as the civil courts' anaemic, callow kid brother. They promote laudable aims, of increasing the celerity and the accessibility of justice in a world where access to legal remedies is becoming more and more like the Ritz Hotel of Victorian London: open to the wealthy and the rich alike, but you don't see many paupers in the Deluxe King suite.  Tribunals emerged, albeit on a fragmented basis, as a response to the problems and limitations of courts. It's for that reason that recent reforms, and the threat they might represent to tribunals' fragile yet distinctive character, are rightly concerning.

Acting on the basis of the Leggatt Report, in 2007 the UK government rationalised the whole tribunal system in England and Wales (and the reserved tribunals in Scotland), condensing the various bodies into a neat two-stage system.  The First Tier tribunal would take all first-instance decisions, with the possibility of review by the Upper Tribunal on point of law. Nothing wrong with that. But significantly, the legislation also judicialised these executive bodies, providing for a judicial independent appointment processes to ensure their independence from the departments they review, rechristening the personnel serving on these tribunals "judges".  

This advancing judicial logic was reflected in the 2010 decision of the coalition to merge the now independent tribunal service with Her Majesty's Court Service, responsible for the administration of the ordinary courts in England and Wales.  The coalition followed the outgoing Labour government, taking this decision was taken after a paper-thin consultation with little research or recognition of the distinctive cultures dividing tribunals from courts. 

The usual nostrums about efficiency and cost-savings were trotted out by Ministers, but the development prompts obvious concerns for the autonomous administrative justice values which tribunals strive to pursue. As Professor Michael Adler observes, "this, at the very least, puts a very big question mark over the prospects for tribunal justice in the UK",  continuing:

"In his response to consultation, Richard Thomas, Chair of the Administrative Justice and Tribunals Council, expressed concern that the merger would raise significant risks for tribunal users if it led to a ‘one size fits all’ approach that took insufficient account of differences in the ways in which citizen vs. state disputes are handled in tribunals and party vs. party disputes are handled in courts. 49 There is, of course, some overlap between courts and tribunals. Some courts, particularly lower-tier courts dealing with small claims, housing disputes and family matters, have adopted the active , interventionist and enabling procedures that are associated with tribunals and, especially where the parties are not represented, adopt inquisitorial rather than adversarial procedures.
At the same time, some tribunals, particularly when the parties are represented, are rather formal, adopt a ‘hands-off approach’ and favour adversarial rather than inquisitorial procedures. Some people argue that it doesn’t matter what the forum is called, i.e. whether it is called a ‘court’ or a ‘tribunal’, that what matters is the appropriateness of the procedures that are adopted and that a unified Courts and Tribunals Service should be in a good position to determine the appropriate procedure for dealing with different types of disputes.
However, there are real differences in culture between courts and tribunals and there is little doubt about who the senior partner in this merger is. There is thus a real danger that a ‘court culture’ will prevail in the unified Courts and Tribunals Service and that the distinctive approach to dispute resolution that has been associated with tribunals, and championed by its supporters, will be put at risk."

Now, at the instigation of Scottish Ministers, Holyrood is plodding after Westminster, essentially copying this half-rationalised model and applying them to the devolved tribunals, shifting them to the judicial branch of the state, under the ultimate authority of the Lord President and subject to administration by the Scottish Court Service.

While the streamlining of these disparate Scottish tribunals into a unitary Upper and First instance structure with consistent appeal mechanisms seems sensible, the judicialising drift in administrative justice policy is much more problematic. As Richard Henderson argues in a recent piece for the Guardian on the proposed reform, "the real risk is that the distinct characteristics of tribunals will fade after the merger, gradually to be succeeded by something resembling the courts as we know them."

Tribunals may not ignite fires in many political bellies, but their characteristics and aspirations are of the utmost political importance, mediating between citizens and the state, offering a distinctive account of the sort of justice which ought to be available to the citizen. The argument for "bringing Scotland into line with England" just isn't good enough.

12 December 2013


Holyrood is getting itself in a muddle.  This week, the Justice Committee heard from a bench of eminent criminal lawyers and academics. The topic, as ever these days, was the proposed abolition of corroboration. I've inveighed before against the bewildering idea that that parliamentarians aren't really abolishing the corroboration rule, by endorsing legislation with a section headed "abolition of the corroboration rule". 

This chimerical notion raised one of its three heads again in the Justice Committee Session this week, emanating from SNP MSPs Christian Allard and Sandra White.  Sandra observed - yet again - that:

"We have established that the bill is not about abolishing corroboration per se, but is about removing the mandatory requirement for corroboration."

Christian, having quoted from the evidence before the Committee, concluded:

"...corroboration will not be removed, but they [the Polis] are happy to have the requirement for corroboration to be removed and for the situation to be as it is in England. Corroboration will still be used."

Last week, I tried to sketch the perils of this kind of thinking. The corroboration rule MSPs are considering abolishing means only the essential facts of the case must be evidenced by two independence sources - (1) that a crime known to the law of Scotland was committed, and (2) that it was the accused who committed that crime.  Kenny's proposals to abolish corroboration are clearly going to change that.  

Take this example. Say, under the status quo, an accused person confirms that consensual sex took place between himself and the complainer.  She alleges the absence of consent. The complainer was not otherwise injured and there is no evidence of subsequent distress, observed by a third party, capable of corroborating her lack of consent. Today, this case would founder for want of corroboration of the essential fact of the absence of consent on her part, although the crucial fact that intercourse took place is corroborated by the evidence of the complainer and the accused.  

We might describe this as a partially-corroborated case, or to use the language of the Justice Committee, one in which there is some "supporting evidence" in addition to the complainer's allegations for at least part of the offence alleged. Critically, however, it is not a fully corroborated case. If and when this Bill passes into law, and the corroboration rule vanishes, I wouldn't be at all surprised to discover cases of this character reaching the High Court docket, where the complainer is assessed to be credible and reliable by prosecutors. But the availability of evidence supporting some but not all of the essential facts does not equal corroboration. It isn't corroboration by another name, as Allard and White seem to understand it and parliamentarians are getting themselves in a guddle, if they can't distinguish the two.

If this legislation is to extend access to justice for complainers at all, as Kenny has said time and again, the Crown are obviously going to have to apply something other than - something weaker than - the current corroboration rule.  That much should be self-evident.  If all Holyrood thinks it is doing is transforming a mandatory rule of evidence into the same rule, enshrined only in prosecutorial practice, nobody's access to court will be extended one jot. The 3,000 rape and domestic violence cases Sandra White is concerned about will fall at the same hurdle.  Either you abolish corroboration de facto and de jure and you open the court doors to those cases - or you don't abolish corroboration de facto and the way remains shut. It's an incoherent position to imagine otherwise.

There's another head to this chimera: the failure to distinguish properly between (a) the law on the books and (b) guidelines from the Lord Advocate on how prosecutors will decide which cases to take in practice. Prosecution policy isn't unimportant, but it can't and shouldn't be the be-all-and-end-all for legislators scrutinising this Bill. Why not? It seems that only an extreme example will serve to batter home the point, so here's one.  

A democratic political community tires of the delays and compromises inherent in democratic processes.  They find their most virtuous, kindly, and wise citizen, and by a vote of all of their peers, invest that citizen with supreme powers, suspending legislative assemblies.  The whim of the sovereign is to be the highest law.  That sovereign promises to use their dread powers soberly, sending the dogs of the prosecution racing after only malefactors, only bad folk who really deserve it, not the innocent, or those who occasionally criticise one of his initiatives.  One or two folk have qualms about all this - but are cried down by the multitude.  He is a good man. He will use these powers wisely.

But the old adage applies, and their sovereign's virtue withers on his throne. Accustomed to the exercise of absolute power, he begins persecuting citizens, adopting illiberal policies and arbitrary practices. His promises of good conduct - ash. But legally, the deed is done. By granting him unconditional, absolute power, his erstwhile comrades could rely only on his current promise of future benevolence. Only when he proved less than kindly, did the incautious character of their initial grant of power fully reveal itself. 

This is becoming a parliamentary bad habit: trust prosecutors, trust police. Endorse criminal laws drafted in remarkable breadth which you'd baulk to see enforced, soothed by the idea that constables and procurators will only apply them to the really suspicious or mischievous or malignant characters caught by it, whoever they are.  We have to keep (a) the law and (b) aspirations about practice distinct in our heads. 

Now, by no means is the Lord Advocate a parallel tyrant, but such practice guidelines as he may adopt are evanescent, and may be ripped up tout suite.  Perhaps his successor in office will take a wider view, less concerned about the perils of single-witness convictions, and give prosecutors the go-ahead with fewer and fewer of the essential facts of the charge being corroborated.  Such an outcome is not unthinkable. Parliament will get no say if the Lord Advocate's policy changes, no say if the assurances they have been given over the course of this Bill prove empty.  
In such circumstances, we get down to the bedrock question - the question really before our legislators: will it be legal for a court to convict someone on a criminal charge, exclusively on the evidence of one witness, and without any external evidence supporting their claims? The short answer is yes: this law will make that possible.  If the Bill is to be defended, that proposition is to be defended. I think it can be defended. But there's no point using fast and loose misunderstandings of corroboration to pretend otherwise.

9 December 2013

Money Grubbing Bastards Vol. II

Blessed sanity! "Holyrood set to cut pay link after planned 11% rise for MPs" reports the Herald this morning, and a damn good thing too. 

As I set out here back in July, when these pay proposals first emerged from the Independent Parliamentary Standards Authority, there's no reason whatever why Holyrood should follow suit, adding flipping great wadges of cash to MSPs' already substantial piles.

While I welcome the statement of principle, Robbie Dinwoodie's Herald piece contains this curious passage.

"It is understood Holyrood's cross-party housekeeping committee, the Scottish Parliament Corporate Body (SPCB), is looking at how to break the link laid down in the Scotland Act 1998. It set the salary of an MSP, currently £58,097, at 87.5% of that of an MP.  It is not clear if Holyrood would have to change the act to break this link or if it could be achieved by a legislative consent motion at Westminster." 

"A Scottish Parliament spokeswoman said: "It would be wrong to assume any pay rise will automatically apply at Holyrood. The SPCB is aware of the IPSA consultation and has considered the most appropriate arrangements for determining MSPs' pay. The SPCB will be announcing its proposals shortly."

Reading this, you'd get the impression that cutting the link between MSPs' and MPs' salaries is liable to be technically tricky, perhaps requiring Westminster legislation to effect. But this is nonsense, and Dinwoodie - or whoever he is taking his cues from - has seriously garbled his legals here. A quick look at the parliamentary record, or the 1998 Act itself, or recent events around the Bill Walker case, makes it absolutely clear that (a) it is easy for Holyrood to diverge from Westminster's salary schemes (b) that no fancy legal measures are required and (c) that almost all of Dinwoodie's legal analysis is not just wrong, but obviously wrong.

Let's clear away the fog. Firstly, Holyrood passes legislative consent motions when Westminster legislates in devolved areas. It can never be the other way around, since Holyrood can't legislate about reserved matters. Westminster recognises no such thing as a legislative consent motion.

Secondly, Holyrood can't change the Scotland Act on its own motion.  If further devolution is required to enforce a more moderate pay scale for legislators, Westminster would have to adopt subordinate legislation through an Orders in Council under section 30 of the Scotland Act, as we observed in the referendum debate - not a legislative consent motion as the Herald reports. But if changing MSPs' rates of pay relied on amending Holyrood's founding statute, Schedule 4 makes it is crystal clear that this would be outwith Holyrood's current powers. 

But is it? I think not. If you undertake a cursory examination of the Scotland Act 1998, you'll find no reference to any 87.5% rule governing MSPs' pay whatever. None of this is buried deep in the legal prose. It's all nicely set out under the heading "Remuneration of Members of Parliament and the Executive". 

The basic points: it is for the Scottish Parliament to determine the salaries of its members. Such provision may be made (a) by an Act of parliament or (b) by a motion conferring functions on its Corporate Body.  If we delve back into Holyrood's early history, we'd discover that MSPs took the latter, more flexible course and that it was the Corporate Body, not Westminster, who adopted the policy of pegging MSPs' wages to 87.5% of that paid to their brethren serving in the London parliament.

No queer legal measures are indicated or necessary to detach that peg. The Corporate Body may do so on its own authority, though I imagine they might choose to lay any changes before MSPs in a motion to be validated.  

We had a recent - very visible - example of this authority at work in the Bill Walker case. On this legal basis, Tricia Marwick was able speedily to act to change the salary scheme to cut the reluctant parliamentarian's wages by 90% during any such time as he would spend in the clink. That wouldn't have been possible, if complex constitutional tinkering was necessary.

Contra Dinwoodie, there are no legal impediments or complexities around severing the salary link. We should be able to expect similar decisiveness from Holyrood, in rejecting these disgusting and impolitic proposals.

5 December 2013

It's a No from me, Darling...

Tory money, Labour activists: that was the deal.

Better Together's founding compact had a certain sense to it. The coalition government simply lacks the clout to carry Scotland alone. Association with the Conservatives has seen a wide-spread cull in Liberal support and representation across the country.  You can install Alistair Carmichael or Michael Moore as Secretary of State for Scotland, to avoid the embarrassment of exposing the timorous David Mundell to the public consciousness. But the political charms of neither the Orkney and Shetland MP, nor the lugubrious borderer, neatly transfer into the populous red girdle about Scotland's middle.

Across great swathes of the country, but for Scottish Labour, the Better Together party political coalition enjoys only meagre penetration.  They're going to have to invest their hopes in the organisation which brought us such favourites as the 2011 Holyrood election campaign. It is an unenviable position. But who to lash to the front of this jury-rigged ship? Gordo Broon doesn't seem keen. Alistair Darling, shop-soiled perhaps, and not very fruity, proved their best bet.

I've always been skeptical about the extent to which the ordinary punter, even the Labour sympathetic punter, holds Darling in a warm place in their hearts. The Scottish press rate him, so the soft soap is in the pat to cover his various interventions.  But it worth remembering that during his stint in ministerial office, Darling topped the league as the Most Boring Westminster politician for two years on the trot.

Reassurance, sobriety, and good judgement may be virtues, but you can't expect anybody to notice, if they're nose-down in the mashed potato over the evening news, having lost the will to live.  I'm yet to meet anybody active in public affairs, who would list a faultless capacity to elicit abject tedium as a cardinal virtue of an effective political campaigner.

But the claret's running down in the walls in Telegraph and Spectator towers. Cochers has popped.  A small knot of "senior" Tories have had the splendid idea of laying into Darling in the Financial Times, suggesting he is "comatose" and "dreary". Various other media outlets have followed the tale up. Cameron is, apparently, spitting blood and feathers and making placatory telephone calls. Whatever the truth of any of this, it is, as Massie, Martin and Cochrane argue, pleasingly bonkers from a political perspective - and arguably only a foretaste of things to come. 

Mid-term, closing the constitutional distance between the Tories and the Labour party to meet the Nationalist threat might have seemed compelling. As the Westminster General Election looms closer, however, it will become an ever less comfortable proximity. How can the Labour Party indict David Cameron and all his works, but preserve the tender, fragile argument that we're all, ultimately, "better together"? 

If the Unionist constitutional argument shifts onto more positive terrain, beyond British nationalist appeals to identity, how are their tribal differences and hatreds to be reconciled with a united vision of what it means to be "better"? How likely is it that escalating political hostilities between the two big British parties will be compatible with comity and constructive working in Scotland - while ripping the gizzards out of each other, day in day out, in the House of Commons and on the pan-UK airwaves? Faced with a choice - emphasise comity to win the referendum, or emphasise division to win the General Election of 2015 - which impulse do you think will triumph, given their Westminster-dominated priorities?

Actuarially speaking, a snowball in hell seems likely to enjoy a more favourable life expectancy and quality of life than this unhappy fellowship of enemies. Particularly where the Tories don't feel that they are getting an adequate bang from their buck from an unimaginative and episodically incompetent Better Together campaign, and from sullen Labour establishment, with less and less reason to cooperate, even if they had the capacity to do so.  

Bluntly speaking, it seems only a matter of time before the SNP take a more active hand in the direction of Yes Scotland. The Greens and the SSP may squawk a little. We may see a few press headlines, and over-refreshed visions of Nationalist control-freakery, but nobody is likely to care all that much. The same does not go for the more contested territory of Better Together. My hunch is, these incautious Tory critiques of Darling gesture indirectly towards a much broader sense of anxiety and dissatisfaction in Conservative and Liberal circles with the tactics and approach of the official No campaign.  That's a problem.

But what is HM's Government to do? They may fruitlessly grumble to sympathetic journalists, and take pot-shots at their own extremities, but the opportunity for Cameron's government to "step in" if things start to fray is limited.  The Scotland Analysis papers are an attempt to contribute to the constitutional debate from arms length, with plausible deniability. We know that the Prime Minister is - for understandable strategic reasons - keen not to become a focus for attention in the constitutional debate in Scotland. You can't be out of it, having conducted a field execution and promoted one of your own. 

And then there are the territorial questions.  But for the odd Tory, Better Together's functionaries are Labour bodies who will, in time, drift back to Mother Labour, whatever the outcome.  Delicate balances are being struck here, on a political but also on a personal basis.  I've no insight into Better Together's inner workings, but I'd be surprised if folk working there left all of their allegiances at the door. They've their living to think of.

While it remains to be seen just how all of this will transpire, disunity in Better Together is only likely to heighten as the referendum date approaches. These jabs at Darling are only the first sallies in what seems all too likely to become a you scratch my back, I'll stab yours routine between Better Together's uneasy, cut-throat alliance.

4 December 2013

Scottish Police Federation: lost and confused

You know me. I'm a generous soul, and I don't like to pick on people. But Holyrood's Justice Committee was witness yesterday to such an extraordinarily incompetent performance by the Scottish Police Federation, we shouldn't pass over it in silence.  The topic of the day was the abolition of corroboration.  If the success or failure of Kenny's proposals rested on the understanding and clarity of many of its proponents, it'd be stuffed.  
The polis put up the first panel of witnesses, three senior officers representing Police Scotland, the Scottish Police Federation and Association of Scottish Police Superintendents. As the papers cover this morning, this appearance was of interest, as two of the three bodies initially expressed qualms about abolition. Yesterday, through their Vice-President David Ross, the SPF indicated that their view had shifted.  The reasons he gave were astonishing in their incoherence. 

The official report has not yet been published, but you can watch the session here. In explaining his organisation's change of view, David Ross claimed that the Police Federation's initial concerns were based - not on any of the proposals - but a series of fantasies and anxious impressions which its membership had dreamed up, without bothering to investigate whether they had any foundation. 

Apparently, the SPF thought the Bill would move us from a criminal standard of proof - beyond reasonable doubt - to the civil standard - balance of probability. Quite how they arrived at this eccentric and baseless impression, it is difficult to say. The glaikit Mr Ross could only shrug and avow past bemusement. This is an extraordinary approach for the SPF to own up to. Invited to submit evidence in the course of the parliamentary scrutiny of legislation - on Mr Ross' evidence, the Police Federation didn't bother investigating the actual proposals, and instead, sounded off about unrelated fears and concerns. 

Perhaps anxiety tied his tongue, but Ross' evidence also showed a remarkable lack of understanding about what the corroboration rule requires at present. His opening gambit:

"I think as discussion and debate around corroboration has moved on, it has become clearer what's intended, in terms of what's taken in the Bill. And our view is now that we're talking about the requirement for every strand of evidence to be corroborated being removed, in favour of checks and balances across the whole of the evidence and safeguards. So, in truth, what our view is now, in terms of the checks and balances, other evidence supporting the evidence of an eyewitness, rather than two eyewitnesses, that kind of -" [Interrupted by the Chair]
"Our view has always been in terms of how police gather evidence and how we report evidence is by in large that's done using two police officers, two forensic scientists - and our view has always been that was unnecessary and was costly to the criminal justice system but didn't provide any great benefit to it. So, - and that was part of our response, in terms of our view on corroboration.
So we were always opposed to the blanket removal of it, in terms of - the most recent comments of the Cabinet Secretary for Justice, and, indeed, the Lord Advocate, suggest that  we're talking about checks and balances and other evidence, and safeguards.  In truth, what we're talking about is corroboration from different sources, rather than corroborating each - you know, an eyewitness's account being corroborated by another eyewitness' account, or indeed forensic evidence being corroborated by some other form of evidence."

This is, to borrow a phrase I've used before, baffling poppycock.  An incoherent mess and I marvel that a trained copper could trot it all out.  

Firstly, this is a really foolish way to talk and think about corroboration. Yesterday's session was rife with it. Corroboration is a rule of law, requiring only that the essential facts of the case - that the crime was committed and that it was the accused who committed it - are substantiated in evidence from two independent sources. Anything less than this is not corroboration.  The Criminal Justice Bill proposes that this rule be eliminated from our law, and that these essential facts can be proved in law by evidence from a single source, say by a single witness. 

For example, in a rape case, the Crown must prove that sex occurred.  In the absence of a second source of evidence - either DNA evidence or the accused's own admission - the charge will be insufficiently corroborated to take to court under the current dispensation. Having abolished corroboration, the complainer's evidence alone will be enough to make out this element of the offence. There may be other evidence supporting the allegation in general terms - evidence of distress say - but the complainer's evidence about this essential fact won't have to be supported. 

The extent of David Ross's ignorance is summed up by a quote he gave to the Scotsman, arguing that:

“It has become clearer we will still have corroboration across the whole of the evidence, but not on every individual strand. That’s from the cabinet secretary, the Lord Advocate and Solicitor General. It was a significant concern that evidence from one source would be sufficient – if corroboration was removed in its entirety. And that was a step too far.”

Sorry to break it to you Mr Ross, but if the SPF now support the legislation because they think a single witness's evidence will not be sufficient in law to bring home a conviction - you've seriously misunderstood the whole enterprise. Legally "one source would be sufficient". If you haven't realised that - michty - you've not been paying nearly enough attention.

Secondly, the corroboration rule never required, as Ross implies "every strand of evidence" to be corroborated, only the essential facts. Again, you'd think and hope he'd have a clear understanding of that, before presenting himself as an expert witness in parliament. Thirdly, corroboration was never about two eyewitnesses. I'm astonished that any senior police officer would seriously suggest otherwise.

All in all, this was thoroughly unedifying performance from a lost and confused Scottish Police Federation.

2 December 2013

Time for Holyrood to drink the hemlock

In November 2010, Holyrood vetoed Margo MacDonald's End of Life Assistance Bill on first principles, after a critical report from Ross Finnie's mostly hostile ad hoc committee

Parliamentarians' criticisms of the proposals ranged from arguments rooted in a priori  propositions - the intentional taking of human life is always wrong - to problems with how the legislation and its safeguards had been drafted. Didn't the Bill conflate the issues of assisting suicide with active euthanasia? Did the process adequately arrest any rush, perhaps prompted by a bout depression, through the doctor's surgery and into the grave? Would it - could it - provide adequate safeguards for medical professionals, pledged to uphold their Hippocratic Oath?

MSPs thought not, with 66% of them voting agin, just 12% for keeping the discussion going, with 2% abstaining (the remaining 20% of parliamentarians were absent. It was a snowy day in December). Hoping for better luck this time, Margo has marshalled sufficient support among MSPs to relitigate some of the issues, with a new Bill, of a much more limited scope, with much more clearly delineated safeguards. This is no mere rehash of the 2010 proposals - not at all.  While on a superficial reading, you might expect this batch of MSPs to shoot the proposal down in flames as summarily as their colleagues in 2010 - having read the new Bill I wouldn't be so sure.   

Critically, the Assisted Suicide (Scotland) Bill (explanatory notes here, policy memorandum here) removes the issue of euthanasia from consideration altogether. We're only talking about the circumstances in which people may lawfully be assisted to commit suicide in Scotland. Here's where it gets a wee bit more complicated.  While assisting suicides is illegal in England and Wales under the Suicide Act 1961, the legislation doesn't extend to Scotland.  While the English law conceivably criminalises helping a family member to take a plane to Zurich for the purposes of ending their life, in and of itself, assisting suicide is not illegal under Scots law and this sort of act is (probably) not an offence known to the law of Scotland.  

On the other hand, as Frank Mulholland made clear in his evidence to the parliament in the last session, assisting suicides will, in some circumstances, bring you within the ambit of Scottish common law offences. Crimes like "the administration of noxious substances", for example, might catch a doctor providing a patient with a fatal supply of drugs. But legally, the scope of all of this is terrifically unclear: no virtue in the criminal law.  

Last time out, Ross Finnie and his committee bungled the investigation of the legal aspects, failing to ask Frank all of the obvious questions, and reaching the stupefying conclusion that the Scots law in this area is clear and foreseeable. But it isn't, and Margo's proposals would go a long way to clarifying the issues.  This is important, as MSPs are essentially being asked not to endorse doctors killing their patients, but to clarify the circumstances in which assisting suicides will be legal under Scots law, as some forms of assistance already are.  That's a different kettle of herring.

So what will the proposals require and what will they legalise? Firstly, the cause of death must be the person's own deliberate act. As a consequence, these proposals will not legalise medical killings based on living wills, where the patient does not have mental capacity to consent or where individuals lack the physical capacity to administer the substances to themselves. Doctors will not be permitted or required directly to inject deadly substances into patients' bodies: that will remain the crime of homicide. We're now talking exclusively about facilitating suicides, safely and humanely.

So how will it work? A person seeking assistance to take their own life must make a witnessed preliminary declaration to their medical practitioner.  After another week, the person may make a First Request to their doctor for assistance to commit suicide. People making such a request must be at least sixteen years of age, and must have s8(5)(a) "an illness that is, for the person, either terminal or life-shortening" or s8(5)(b) a condition that is, for the person, progressive and either terminal or life-shortening" which leads them to the conclusion that "the quality of the person’s life is unacceptable" (s8(3)(d)).

This First Request has to be endorsed by two different doctors, applying the same requirements with respect to the medical condition of the patient and having concluded that the patient's "conclusion under section 8(3)(d) that the person’s quality of life is unacceptable is not inconsistent with the facts then known to the practitioner". The Bill also excludes a range of interested persons from acting as witnesses to this process (presumably aiming to answer the macabre scenario of elderly people, being encouraged to end their lives early and against their will by grasping family members, keen to inherit). 

This is followed up by a Second Request, after another week, requiring another round of medical endorsements, after which it will be lawful for a "licensed facilitator" to assist suicide within a period of fourteen days. While these facilitators might be medical practitioners (and there may be tricky legal issues here about access to drugs), Margo proposes a separate licensing regime for facilitators, to be regulated by the Scottish Ministers.

Unlike the jiggerpokery which characterised Margo's last attempt, the standing Health and Sport Committee will lead scrutiny of the legislation.  Let's hope Duncan McNeil and his colleagues make a better fist of their investigations into this - essentially modest, sensible and clarifying - proposal.