Nicola's new appeal to self-interest

I've got out of the habit of watching First Minister's Questions, but I tuned in with interest this afternoon to see how the parties responded to yesterday's budget and the challenges it throws up for Scottish policy. Heckled by Kezia Dugdale, there were encouraging signs from the First Minister that the SNP are up for prosecuting the social democratic case that better services are worth fighting - and paying for - even if that involves maintaining higher levels of income taxation for the 10% to 15% of the population who are higher rate tax payers. 

The right wing press have responded this morning in their usual risible style, bleating about the cruel fate to be endured by "middle class families" in Scotland under this separatist government. If the First Minister's answers today are anything to go by, the richest look unlikely to be receiving Osborne's unnecessary tax bungs from Nicola Sturgeon's treasury next year, as the basic support which is extended to disabled people is ruthlessly hewn away. 

But perhaps the most interesting thing in Sturgeon's #fmqs performance today? For the first time that I can remember - she explicitly linked the idea of levying higher Scottish taxes with the provision of better public services not available in England.  Since 1998, we've existed in a curious kind of policy limbo in this respect. Scottish governments of all stripes have taken spending decisions which distinguish them from the priorities in Whitehall, whether it is the reduction and elimination tuition fees for Scottish domiciled students, or Henry McLeish's funding for personal care for the elderly, or the SNP's decision to roll out universal free prescriptions. 

While Westminster held the purse strings, these distinct spending decisions have not been linked to any argument about whether taxes ought to be higher or lower. One consequence of this output oriented analysis of public spending has been disgruntled Tory politicians south of the border, arguing that Scotland is feather bedded and claims an unfair share of public spending, allowing its politicians to distribute "free stuff" to its people which the harder pressed English representatives simply cannot afford. But we rarely ever talk about the investments Scottish Governments did not and could not make, as a result of prioritising personal care, tuition fees, and access to medicines. Or for that matter, how that surplus was spent in England and Wales. But if Sturgeon's asides this afternoon are anything to go by, all of that is about to change. 

Significantly, the First Minister appealed not only to altruism, or concern for the worst off and the vulnerable today, but also to a kind of enlightened self-interest. Short version? "Tax isn't just a sacrifice, reluctantly made for the good of others. Here's what your higher taxes get you. These things are worth paying for." Her remarks put me immediately in mind of this piece from the Atlantic magazine yesterday on Bernie Sanders' campaign for the Democratic nomination. Written by a Nordic-American journalist, Anu Partanen, the piece neatly echoes the argument Nicola Sturgeon just began making this afternoon and which I suspect we'll hear much, much more of in the coming months and years in Scottish politics. Here's the key passage:

"A Nordic person myself, I left my native Finland seven years ago and moved to the U.S. Although I’m now a U.S. citizen, I hear these kinds of comments from Americans all the time—at cocktail parties and at panel discussions, in town hall meetings and on the opinion pages. Nordic countries are the way they are, I’m told, because they are small, homogeneous “nanny states” where everyone looks alike, thinks alike, and belongs to a big extended family. 

This, in turn, makes Nordic citizens willing to sacrifice their own interests to help their neighbors. Americans don’t feel a similar kinship with other Americans, I’m told, and thus will never sacrifice their own interests for the common good. What this is mostly taken to mean is that Americans will never, ever agree to pay higher taxes to provide universal social services, as the Nordics do. Thus Bernie Sanders, and anyone else in the U.S. who brings up Nordic countries as an example for America, is living in la-la land. 

But this vision of homogenous, altruistic Nordic lands is mostly a fantasy. The choices Nordic countries have made have little to do with altruism or kinship. Rather, Nordic people have made their decisions out of self-interest. Nordic nations offer their citizens—all of their citizens, but especially the middle class—high-quality services that save people a lot of money, time, and trouble. This is what Americans fail to understand: My taxes in Finland were used to pay for top-notch services for me."

In terms of the tax and spend debate which is coming to Holyrood - perhaps a straw in the wind. 

Scottish Labour: learned nothing, forgiven nothing.

I have an embarrassing admission to make: I rate one of President George W Bush's speech-writers. My social democratic sentiments may baulk at the conservatism he promotes, and we may share relatively few political values, but the Canadian-American political analyst, David Frum, is a sharp cookie.  

Frum has a bit of a tin-ear when it comes to his interpretation of British politics, but whatever my disagreements with him, there's undeniably a mind at work there, which is admirable irrespective of one's political divisions. If you are interested in your American federal politics, Frum's analysis of "why Romney lost" at the Policy Exchange UK earlier this year repays attention. 

Another one of Frum's favourite themes popped into my mind this week, unexpectedly, during Johann Lamont's interrogation of the Maximum Eck at First Minister's Questions in Holyrood.  Frum has helped to popularise the unnecessary wonky-sounding phrase of "epistemic closure" in American politics (or at least, introduced it to "Beltway" pundits).  Seemingly nicked from academic philosophy, in its political application, the idea refers to the effect, when a party and its supporters load themselves up into the echo chamber, slam the door shut behind them, and turn the key in the lock. Frum has the Tea Party dominated Republican caucus in the House of Representatives, and its increasingly eccentric political fixations, in mind.

Inside, all is warm and cosy. Dissenting voices are smothered into silence, or exile themselves from the stultifying fug of its unquestioned, and occasionally dangerously wrong, consensus. The common sense in the room, however uncommon it may be in the country, works its strange magic.  Everyone I know agrees with me, so surely everyone really agrees with me.

I've written about this phenomenon before, in the anti-Nat assumptions of the Oxford college high table.  Such closure is not limited to the right of centre, or to those suspicious of Scottish nationalism. Folk love newspapers and blogs which conform with their pre-existing beliefs (or, if we're talking about folk we disagree with, their prejudices).  If you and your colleagues envisage yourself as an idiosyncratic minority collective, little harm might be done. If, by contrast, your small knot identify yourselves and your opinions with those held by the whole body of the Plain People, the script for trouble composes itself. As one of the madder unsuccessful Republican senate candidates said the other year,  I'm not a witch. I'm you.

In its loopier manifestation, this can resolve into the belief that everyone agrees with me, even if, when given the opportunity, they decided not to.  When challenged, this argument sometimes transmogrifies into a second form: All the people that really count agree with me, even if ... er ... you know ... they didn't actually vote for me. We really won in some important, spiritual, non-real-world sense, while the real victor is a disreputable cheat whose legitimacy is always suspect.  Epistemic closure allows different definitions of success and failure to be applied.

In the United States, the ideological echo is furnished by the rhetoric of Talk Radio, poisonously partisan cable-news outlets, and the willingness of both to depart from ... um ... reality where the facts aren't comfortable to their ideological commitments.  There's no point in pelting folk inside this echo chamber with contrary evidence. Such data can always been shaken off as the lies brewed up by the "liberal media".  Put your unflinching faith in the priests and apostles of your own movement, whether or not they are unprincipled chancers, transparent hucksters or empty-headed reprobates. "Who're you gonna believe honey, me or your lyin' eyes?"

A parallel imperviousness to reality characterised one of Johann's flyaway lines at FMQs this week. She quipped:

"One would think that, having had a fortnight off, the First Minister might have had a think about doing his job properly. The First Minister would do well to listen to the lesson of Dunfermline. The people of Scotland want Scotland off pause; they want him to stop obsessing about independence, and for him to do his day job."

Now, we all know that Labour have been desperately pushing the line that "Scotland is on pause" under this SNP government, however unsuccessfully.  Eminently predictably, Salmond snarked back:

"First, I will address my two weeks off. Along with others, I devoted a huge amount of time during the past two weeks to helping to save Grangemouth, which is a key part of the Scottish economy. I am not quite certain what Johann Lamont’s role was in that, but I thought that her silence was meant to be helpful."

Whatever the observable reality, promote your agenda.  Whether or not the argument looks remotely credible to anyone else, press on with it. You smite for truth and goodness, whatever mere worldly facts disclose.  Even if Salmond was really busting the gut to save Grangemouth - or for the horribly cynical, even if he was only bursting the gut to appear to be trying to save the petrochemical facility - in the entombed Labour mind, the First Minister was really just out on constitutional manoeuvres, neglecting the country. Scotland on pause. You can't win with these people.

Cara Hilton's largely unreported victory speech in Dunfermline spoke for the echo chamber even more explicitly. Reading her preprepared remarks, Hilton suggested that the by-election represented an important waystation on Labour's journey of "reconnecting" with all Scottish communities, "rebuilding trust" in the party. A hard road, she recognised. But one to be trod, with Johann leading the way, like Moses in the desert. So much, so boilerplated. But she went further, hoping that this "reconnection" would mean that :

"... many more Scots will see Labour as the party that we have always been. The party that is on their side. Representing their best interests, aspirations and dreams for the future."

Being an instantly forgettable by-election speech, it is easy to miss just how hubristic and irresponsible this rhetoric is.  The problem faced by Labour, on Hilton's diagnosis, is not their own missteps, or errors, or mediocrity, but the people's loss of trust in the party that was always really on their side. The people misapprehended where their interests lay. If Labour is to win again, the people must change, not the party. Lamont's problems are entirely about communication, not about what is being communicated. That's the political lesson to take from the party's six doldrum years.  Remarkable.

The fatal danger of epistemic closure is that it lulls you into the belief that everyone else shares your - often quite eccentric and extreme - ideas, preoccupations and obsessions.  Memo just in: they don't.  That JoLa or her PR stooges still thought that they could get away with pitching such an incredible jibe Salmond's way speaks volumes. As Talleyrand said of the deposed House of Bourbon, sitting in vinegar, stewing, in defiance of the changed realities in the French Republic, "they have learned nothing and forgotten nothing." And forgiven nothing. 

Lamont's tale of sound and fury

Seeing as it is the SNP conference weekend, a modest partisan gloat.  Since taking over the good ship Scottish Labour after Iain Gray's iceberg captaincy of 2011, Johann Lamont has made good use of her petted lip. Teacherly, scornful, Lamont has used her two year headship to ravage the SNP's record and motives, striving to puncture the credibility of key figures in the Scottish Government by liberally scattering barbed allegations of incompetence and dishonesty like caltrops. Such is the business of opposition.

Her colleagues have also been worrying away at another partisan meme: "Scotland on pause". Look at these dotty, constitutionally-obsessed Nats, neglecting the governance of the nation to pursue their weird, abstract pipe-dream of independence. We're the bread and butter army. Insert quotidian but touching tale of struggling ordinary folk here. Vote Labour.   

So how's that story going? If Lamont's master strategy was paying off, six years into the Scottish Nationalist administration, we'd expect to find a disgruntled public, still on balance against independence, grousing about how the SNP are getting on with their second term.  After all, it is almost inevitable that the magic fades. That folk become restless and fancy an alternative. But instead? According to the latest Ipsos-MORI poll, canvassed over the middle of September, a thumping majority of folk are still satisfied with how the Maximum Eck and his colleagues are faring in Holyrood.

Entertainingly, it appears that Lamont cannot even persuade her own voters that "Scotland is on pause" and that Eck is seriously bungling his second tour of duty.  Canvassing those who voted Labour in the constituencies in the 2011 Holyrood election - a head on smash with the SNP - the pollster found that a majority of Johann's supporters are satisfied too.

If you can't even persuade your sympathisers and fellow-travellers to share your political diagnosis, you're in a sorry way. As much fun as Holyrood commentators have, chortling over Johann's occasionally droll bruisings of Salmond at First Minister's Questions, strutting and fretting her hour upon the stage, out in the country, it remains a tale full of sound and fury - signifying nothing.

Homages to Catalonia

Bona tarda! 

There was a Catalan theme to episode 35 of the For A' That podcast this week.  Friend of the pod and New Statesman contributor Jamie Maxwell was out on manoeuvres in Spain's debatable lands last week, casting an inquisitive eye over Catalonia's independence movement. Many of you may have read his column in yesterday's Sunday Herald.  We were also joined again this week by Kate Higgins. 

On the show, Jamie discussed the animating gods of the Catalan movement, and told us about what he'd seen and learned during his jaunt. What parallels and differences characterise the Catalan and Scottish independence movements? Is the Catalonian argument primarily concerned with culture, governance and democracy, or some mixture of both? Our discussion broadened out to the more general point: is it important for Scottish independence supporters to have fraternal relations with similar movements abroad? Does Spanish intransigence over Catalonia pose diplomatic problems for Scottish nationalists which, ironically, call for a little coolness and distance between the two groups?

Returning to domestic politics, we also discussed Johann Lamont's assault on Salmond at this week's First Minister's Question time, alleging financial jiggerypokery.  It as also budget week in Holyrood. Kate picks out her keynotes from Swinney's statements. We also bring up the tender topic of the Bedroom Tax. An indefensible policy it may be, but does it have the strategic importance both Labour and the SNP are currently investing it with? Alternatively, has the policy become a neat totem for the objectionable elements of Westminster's welfare reforms, and a politically effective shorthand for opposition to them? We chew the matter over.

Download the show via Spreaker or your iTunes. You can also sign-up for our RSS feed, to ensure no episode will ever run astray.  Or alternatively, just lend it your lugs right here.

We'll be back next week.

Europe's war on British justice!

Europe.  The land of many's the British fantasy.  One of the dreariest of our own day is the idea that the European Court of Human Rights, based in Strasbourg, is somehow "waging war" on British courts and justice, meddlesomely upturning a substantial number of their decisions. A few salient facts blows that eurosceptic victim fantasy apart. I marshalled them in a wee piece in the Scotsman this morning, entitled "Is the European Court of Human Rights fit for purpose?"

I also took the opportunity to highlight a generally overlooked dimension of recent attempts to reform the Court: the situation of the thousands of poor applicants in ghastly situations, making their cases as best they can without legal representation.  You can read the whole thing here.

Europe was also on the menu on episode 12 of the For A' That podcast. No guest this week, but Michael and I chewed over what effect David Cameron's EU referendum wheeze might have on Britain and Scotland, and the campaign for independence. Michael discoursed at length about the length of bananas. We also took up last week's revivification of devosomething, and I make a scandalous admission about Scottish Labour leader, Johann Lamont. We buttonholed our blether with a look back across the Atlantic, to Obama's inauguration address, of its rhetoric and its substance.  As usual, you can listen to the show right here, or download it from Spreaker, or from iTunes.

Salmond: Nixonian, Clintonian, Delboyian...

And in a single bound, free. Well, not quite, but Alex Salmond certainly cleared some much-needed waddle-room for himself at this afternoon's First Minister's Questions, in great part because of the ineptness of his sapskulled interrogators. After a bruising week of often Jesuitical evasions from the Scottish Government, skeptical hacks perched like rooks in the Holyrood rafters, ready to pick over Salmond's carcass, the stage was meant to be set for an uncomfortable encounter for the First Minister.  

Hitherto, there's been something of Schrödinger's cat about Salmond's account of himself. The condensed version of his Holyrood statement was essentially "The concept of legal advice obviously includes and excludes any advice about law which I may and may not have received." The justification has been full of doubleness, distinguishing legal advice which he did and did not ask for or possess, and could and could not disclose, distinctions which he claimed were implicit in, but not really made explicit to Andrew Neil in their BBC interview. For most, a bemusing guddle of an answer, which could prompt only boredom and disengagement  - or a significant dollop of mistrust.  Salmond's been stewing in this stuff for days now, despite the defensive sallies he and some of his colleagues have launched on telly and on radio in his defence.

Plenty of choice ingredients, you might well think, for an underemployed leader of the opposition to fork through, selecting the choice cuts to serve up to Salmond this afternoon. Lamont, conspicuously absent from the EU advice controversy so far, was spotted practising on a tumshie with her mashie niblick on top of Arthur's Seat this morning. Davidson's neighbours report she's been pummelling an aubergine-shaped punch-bag in a double-breasted suit into the wee small hours over in Partick. Wee Willie Rennie, ill-luck dogging him, is still recovering from last night's BBC Newsnicht and wasn't allotted a question today. At the very least, he no doubt rehearsed enthusiastically braying and pooh-poohing dubiously, as Salmond was taken seriously to task in the chamber. 

None of that materialised. Instead, both Lamont and Davidson were abject, feeble, unfunny, unfocussed. Instead of dragging him across the coals as anticipated, they bungled on content and style, Davidson more ridiculously. They might as well have put him up in a yielding leather armchair beside a nice cosy fire instead. 

I've been pondering how they were able to cock it up so merrily. Poor advice? Bare incompetence? For at least two days, both leaders were in a position to prophesy more or less what Salmond's defence would be. It should have surprised neither of them that he resorted to his nifty device - the independent panel on the ministerial code - to try to douse the controversy. Neither were the lines of justification which he offered novel, or a radical departure from earlier accounts of himself, and the import of his words and actions. They could also rely on Salmond resorting to the old debater's techniques of quibbling with definitions, deflecting from the main thrust of questions by pouncing on perceived errors in their construction.  

Accordingly, it seemed obvious that they'd need to be on top of the precise contents of the Ministerial Code, if they were to stand a hope in hell of catching him out.  Instead, neither politician seemed to have done their homework. Save, that is, for drafting and reading out their prepared remarks, with greater and lesser degrees of dudgeon.  Ruth's approach might be summarised as: "this is an important, serious matter. Now for a series of jocular interludes". It helps if the jokes are witty, and preferably, didn't involve the (more or less) vital, youthful Tory party leader referencing television programmes which were finally discontinued over a decade ago, its glory days already long behind it.  It seems a waste to squander youth's bounty, for the sake of a flaccid gag.

Looking back over past showings, it seems to me that Johann and her advisers are unable to keep critical focus.  At all. Instead of more forensic, detailed dismantling of the First Minister on specific policies, specific failings, setting up tripwires for him to blunder over on themes of wider resonance, she feels much more comfortable delivering acid perorations and pre-chewed put-downs. At length. Accordingly, every week, she skimps on the analysis, and rushes to denunciation, almost in a single breath.  Very rarely do you see her dangling a hook in the water, waiting for Salmond to take the bait, then goggling wetly as the hook finds his throat. 

Instead, Lamont tends to posit an SNP scandal or failure up front - take it for read - and then crack on with Salmond bashing. As a result, we almost never see Alex wriggling uncomfortably, dangling on the line, forced into an awkward admission.  Lamont is simply too predictable, and always furnishes him with some partisan ball to bat back her way from the very get go. She has no lightness on her feet whatsoever as a debater, but being so mechanically pre-scripted, she really should resist the urge to talk so much. Today's little failure in Holyrood was an object lesson in these vices. I'm sure the First Minister appreciates the assistance at this difficult time.  

What might the Tory and Labour leaders have said instead?  Their questioning could go down at least two distinct lines.  I suppose the first is more attractive if you are focussed on Nationalist defeat in Holyrood, the second if you are most concerned with discrediting nationalism more generally in the referendum.  The first, favoured by Labour, was anticipated by Paul Martin's characterisation of the First Minister as a "barefaced liar".  On this line of questioning, the EU topic is of peripheral consequence: the goal is to paint Salmond as a duplicitous scoundrel, a chancer, who habitually lies to journalists, fibs to parliament, and litigates to cover up his falsehoods. It's classic ad hominem stuff, an attempt to dent the personal credibility of the leader, and its effectiveness relies on building up a miasma of mistrust and mislike around the man.

Instead, you might take another approach - one that backgrounds the issue of falsehood, misspeaking, distortion - and instead focusses precisely on the issue of Nationalist credibility on the EU. For my money, while the media and parliamentarians might find the "liar" angle most interesting, it is this second line of questioning which strikes me as more potentially damaging for nationalists, though neither Davidson or Lamont came close to nailing the case.  It might go something like this:

"First Minister. You've been a nationalist for over thirty years. You've been First Minister for six. In that time, your government has brought two referendum bills before this parliament to separate Scotland from the UK.  We now discover that in all those years, it never once - never once - occurred to you to ask your law officers for their opinion on Scotland's EU status after secession. You seem remarkably incurious about this vital question. Scotland's people need an informed debate about independence.  How can the ordinary citizen hope to understand the choices before us, when First Minister's own best notion of the legal possibilities and challenges facing his policy are apparently borrowed from newspaper cuttings from the 1990s, and selective quotes from academic journals? This isn't what a serious, credible nationalist case for independence within the EU looks like."

In the event, both Ruth and Johann wanted to pluck on both strings, but managed to produce two dud notes, rather than one clear one. 

Labour for Independence?

Beyond the pale, disreputable, thoroughly discreditable, incredible, unthinkable. At some point in our lives, most of us should have encountered a moment when we were surrounded by people for whom some cherished conviction of our own was absolutely anathema. Whether representative of the wider population or not, this "common sense in the room" can be intoxicating. For an extreme instance, watch Scottish Questions at Westminster, which is now devoted to pouring vial after vial of scorn over SNP heads. In the great baying mob of MPs, the isolated Nationalist delegation's voices are thin, reedy and invariably drowned out in a haughty chorus of gleeful insolence.

I blogged a wee while back about my experiences at the high table of an Oxford college (which will remain nameless), at which Scottish nationalism wasn’t exactly held in high regard. Indeed, it was dismissed summarily, out of hand, as if the proposition was a transparent absurdity, and any soul who conceived otherwise was surely a silly sausage, and certainly not to be taken seriously. It matters who and what we feel able to write off out of hand, in a casual, argument-slaying shrug. In that piece, I suggested that Scottish Tories are likely to find themselves victim to this sort of chortling scorn, scorned to be taken seriously, the possibilities for reasoned argument foreclosed by your interlocutor's contempt.

Few Holyrood watchers could have failed to notice that hitherto a similar spirit has ruled much of the independence referendum debate. At First Minster’s questions, Ruth Davidson and Johann Lamont habitually inveigh against nationalism, full of fulmination, damning Salmond’s eyes for a daffy, Quixotic fellow on a fool’s errand. Despite occasions in the past where both women have explicitly recognised that Scotland is fit for self-government, rhetorically at least, both have done their weather best to characterise nationalism as outlandish, pathological, and unthinkable. The other day, it struck me that this discourse is dependent on the logic of partisanship, assuming that all of the SNP align behind YesScotland, and all of Labour and the Tories form up with BetterTogether. As the name implies, it may be surprising for your average supporter of the Conservative and Unionist party to support independence – but what about Labour? 

As some of the party’s supporters never tire of telling us, they are not nationalists, nor unionists, but understand their politics to be animated by rather different gods. Some, undoubtedly, still identify as democratic socialists, or at the very least as social democrats, and see their primary purpose – their project – in those terms, whatever intersecting national borders their political struggles may cross. All well and good, and for the moment, let’s take them at their word and accept their political self-diagnosis. If their attitude to the referendum is essentially about means rather than ends – and their question, what means best secure our ends, Union or Scottish independence? – wouldn’t it be a little strange if there was no disagreement whatsoever about which constitutional strategy the party ought to pursue? 

Which got me wondering, where's "Labour for independence?", and is such a movement even thinkable in the contemporary Scottish Labour party? You have Dennis Canavan, of course, but he's been out of Labour politics for yonks now.  I don’t know enough about the ins and the outs of the outfit to tell. One thing is obvious: Johann obviously feels no need to be circumspect about the views of the membership of her party, or for that matter, her fellow parliamentarians in Westminster or in Holyrood.  All are assumed to share her sovereign contempt for the motives and missions of Scottish nationalists.

It may well be that, in the atmosphere which has governed Scottish politics these last years, premised on daggers-drawn between Labour and the SNP, you couldn’t get elected an MSP or MP without being committed to an uncharacteristic, reflexive Unionism of the sort espoused – albeit rather limply these days – by the Tories. I doubt very much, however, that this unwavering phalanx of pro-Union opinion can be representative of the whole Labour movement.  After all, in their own terms, they are neither unionists nor nationalists, and there is at least an argument that realising democratic socialist goals in an independent Scotland would be more straightforwardly accomplished than in Westminster. 

Many folk have been protesting that they're keen for a civilised, intelligent, substantive debate on independence.  It may well be that the first step to doing so is the emergence of a Labour pro-independence group of any significance - or at the very least, a shift in unionist discourse from the idea that nationalism is discreditable, unserious folly, but is instead a viable perspective on politics and the constitution with which they respectfully disagree.  We all know that the atmosphere around the SNP has changed in a number of respects these last years.  In 2006, Mike Russell published a co-authored tract, calling for a "new Union" in these islands.  Various other figures in the party have been taking another look at Britishness, and instead of casually rejecting it, are finding interesting new articulations of the idea. For myself, I tried to contribute in a small way towards obliterating the gridiron binaries and recrimination which has characterised the debate by outlining my own ambivalences about the nationalist project.

These aren't concessions to a opposed worldview, nor I think signs of Nationalist weakness.  Quite the opposite.  Occam's razor a clumsy instrument. Things are complicated, and compromised, and owning up to that's no vice.  We may despatch such ambivalences to a gloomy gulag in the back of our minds, but the niggling little thoughts cannot so easily be exorcised. Folk like Gerry Hassan have been arguing for a long while that the crude Manichean spirit which dominates Scottish politics is pernicious. These past months, we've arguably seen movement on the nationalist side of the argument, but little or no evidence of  Unionist attempts to understand the compelling dimensions of the nationalist case, not as a declaratory ethnic project, but one based on ideas of responsibility, self-government, of a better politics afloat on something other than endlessly repatched, creaky, leaky British ship of state.

I enjoy a good flyting. I'm no wilting bloom, opposed to a dry line, the cruel laugh, the mirthful, malicious put down neatly deployed to disarm an opponent.  Don't let's be prissy. But a precondition of meaningful debate is understanding your opponents ideas, their language and ambitions. We'll never achieve that, without nationalists occasionally borrowing unionist wellies, taking them out for a traipse, and vice versa.  As Johann Lamont's recent performances at FMQs has shown, imperious scorn can be the stuff of effective stand-up comedy but not, I fancy, of illuminating dialectic. 

Salmond's astonishing naïveté...

Imagine, if you will, that you are a hoary old political warrior. Your cynicism well honed and hide scarred by innumerable past battles, you have a consuming addiction to the strategy of politics, and enjoy a reputation as an uncommonly accomplished calculator in that game. Sitting enthroned in your bastion, triumphant after having handily routed all politics foes, a queer old fellow comes knocking, professing friendship and saying he only wants a chinwag and a caramel wafer for his trouble. On closer inspection, you realise this elderly fellow is known to you. And what luck! To the rest of Britain too. 

Known, most recently, as a rapacious and reactionary corporate thuggee whose enterprises have become implicated in all manner of nefarious deeds. Perhaps not as their originator or even their accessory, but this man is certainly paymaster in all, and promoter of many of those suspected. To the rest of politics, so besmirching and risky has proximity to this character become, that all past encounters and past efforts to court him are hastily – if not entirely convincingly – jettisoned. Behind the wheezing steamship Rupe bob the flotsam of many political past friendships and courtships, hastily discarded. Sodden Labour and Tory rosettes float in his wake. 

Naturally, here’s the sort of fellow it would clearly prove politically advantageous to admit into one’s official residence for a chin-wag in February 2012. Embracing the leper may be a Christian duty, but to a politician with a speck of nous – never mind a track record of cunning application – it ought to be anathema. In that context, reconsider Johann Lamont’s remarks at FMQs yesterday, not as a partisan attempt to nail Alex to the cross – but as a matter of practical political calculation: 

“Rupert’s newspapers might be being investigated for bribery, perverting the course of justice, destroying evidence and perjury, but he is still welcome in wee Eck’s house… There are three police investigations, a judicial inquiry, and nearly 50 arrests, but Eck still puts the kettle on for Rubert.” 

On the News International side, this seems to me to be a pretty fair summary of the context, after all. It is an engulfing scandal, which may yet see a number of people adjudged guilty and clapped in irons. Above all, how it will unfold remains uncertain, so cultivating – intentionally or unintentionally – any perceptions of closeness to very visible figures entangled in it is profoundly risky. Which makes you wonder, at what point did Alex’s political acumen – or caution – desert him, and why? What the devil was he thinking, in admitting this man to Bute House last February, recognising as he did the political impact of “the revelations about phone hacking and Milly Dowler”? 

Alex’s defence is that it was all about jobs. And indeed, this account certainly finds some support in the evidence submitted to Leveson (Exhibit KRM 28), where Salmond's 12th of February lunch meeting with Murdoch is described as concerning “News Corporation’s investments in Scotland”. This is corroborated by a remark made by Salmond at First Minister’s Questions on the 1st of March 2012. Pressed by Lamont, Alex Salmond described the 12th of February meeting as:

“… a meeting to determine jobs and the economic footprint of Scotland”.

That well before the stated rationale of the encounter became a matter of generalised political controversy.  Seen as a matter of bare calculation, meeting Rupert in February was colossally risky – and indeed, is so obviously colossally risky , that one really has to wonder what possessed Salmond or his advisers to permit it to proceed. Here was a man recently pulled before parliament, whose organisation was already implicated in extensive and organised phone-hacking, including of the phone of a prominent victim of murder, the corruption of police officers, and several high profile former employees had been arrested and may yet be charged.  While the Motorman report seems strongly to support the thesis that this wasn't a Murdoch-paper problem, but an industry problem, nevertheless, with the closure of the News of the World, Murdoch has been the emblematic figure.  

Ah, but those jobs. Remember those jobs. A First Minister is under an obligation to strain every sinew to secure investment in Scotland. It would be remiss, negligent even, to do otherwise. 

Up to a point, Lord Copper. But what this argument implies – and implies none-too-convincingly – is that the only way Salmond could hope to emphasise the importance of BSkyB’s employment operations in Scotland was personally to invite the indicted figure of Murdoch over to his public residence. All of which smacks of, I’m afraid, a familiar piece of politician’s whimsy. That sense of your indispensability, fondly fancying yourself a grand man of action at the centre of it all, making all the vital directions and interventions. This is politics in the West Wing line, where the majestic charisma of the central character of the drama and their personal relations are pompously fetishised. Let us sit down, and talk, as men. 

In the past, I’ve railed against the complacency implicit the First Minister’s answers on phone-hacking, which have implied – against the grain of the available evidence – that the whole imbroglio could safely be confined to Fleet Street, and that Scottish politicians needn’t trouble themselves too much about it. I wonder now if that sense of complacency about the Scottish dimensions – and a sense of London as a different political world, and its controversies as inapplicable north of the Tweed – contributed to the insensitivity which saw Salmond serve up shimmering bar of Tunnock’s finest to one of the most embattled and maligned figures in British public life, apparently without a twinge of apprehension about how this would be perceived, or the narratives and potentially discrediting accounts of himself which it may - and now has - contributed to. 

This Salmond’s tu quoque defence, and reasonable invocation of Labour hypocrisy and mutual incrimination simply won’t – can’t – answer. While it is certainly true that Labour leaders and Prime Ministers and their Tory successors were slithering supplicants, worldly men engaged in worldly business in Rupert's court, that cannot account for Salmond's strange unwillingness to make the obvious political calculation, and like the rest, contrive to put some political distance between himself and this lighting rod of hostile commentary.  Not to have done so has demonstrated either astonishing naïveté or foolish complacency. Even accepting the First Minister’s account of his motivations in meeting Murdoch, and the economic interest at stake, keeping in so visibly with Rupe after this scandal broke was, in that cunning old dog Fouché’s phrase, “worse than a crime, it was a blunder”. 

If this is “canny” political operating, then I’m a turnip.

The scandal of Scotland's hacking (non)scandal...

Quoth Alex Salmond at FMQs on the 8th of March, in response to a question from Willie Rennie about phone-hacking by newspapers...

"I do not know whether Willie Rennie managed to attend First Minister’s question time last week, when I reiterated and made absolutely clear my full support for the police investigations south and north of the border and my full support for the Leveson inquiry. Since the then Government did absolutely nothing about it, he should take on board the findings of operation Motorman. I promised last week that the document would be placed in the Scottish Parliament information centre, in case the identification by the information commissioner of potential criminality in respect of data protection had not been fully understood by members. I advise Willie Rennie to read the list, which extends across the London press—there are very few Scottish examples in the analysis. Every part of that document should be analysed, and we should support the police inquiries into phone hacking and the Leveson inquiry to the hilt."

The implication being, more or less, that save for the odd chancer and scallywag amongst the Scottish hacks, the invasive practices, blagging and the illegal acquisition of private data, were more or less limited to the London media and the spangled and sorry characters, unlucky enough to catch their eye. As Scottish politicians, we needn't trouble ourselves over much one way or the other. After you, Lord Leveson.  In point of fact, if you read the Information Commissioner's Operation Motorman reports, you will indeed find few Scottish titles, but Salmond oversimplifies. For simplicity, I'll quote my summary from this piece of last summer:

The Commissioner's second document contains a breakdown of transactions showing the extent to which journalists from different media outfits had made unlawful bargains to secure private data about individuals who attracted their curiosity. The table is dominated by papers published on a UK wide basis (there is no separate record, for example, about the News of the World operation in Scotland), but includes the Daily Record, with 7 transactions where private information was unlawfully tafficked for by two Record employees. A number of other papers have (or had) Scottish wings. The Commissioner does not break down these confirmed transactions by jurisdiction, so it is impossible to say on the basis of the published data what "share" Scotland might have in the News of World's 228 positively identified transactions, nor for that matter any of the other papers (many of whom ratcheted up far, far more identified transactions than the defunct News of the World).

For that reason alone, Salmond's bluff confidence in the Scottish press is utterly unwarranted, the aggregated UK data being equally consistent with rank invasions of privacy north of the Tweed - and with saintly press observance of legal norms. On the data published by the Information Commissioner, it is impossible to tell.  

Fascinatingly, the Sunday Herald published a very important article this weekend on the hitherto hidden Scottish aspects of Motorman. And a demolition of Salmond's self-congratulatory version of Scottish press exceptionalism it proves.  Based primarily on quotes from a key investigator involved in the Motorman investigation, the paper reveals that Ally "McCoist named as victim of black market in illegal information".  The investigator, Alec Owens, claims that:

"Amongst the files there were a lot of Scottish telephone numbers for reporters, a lot of Scottish numbers like 0141, 0131. A lot of numbers I recognised as Scottish. There were a lot of victims in Motorman that could be related as Scottish."

And that:

"There was a lot of information about ... Scottish reporters. One in particular, who I can't name, came out very strongly and, had we been allowed to do the job we wanted to do, he would have been in the top 10."

A few Scottish witnesses are appearing before the Leveson inquiry today, including the Chief Constable of Strathclyde Police, Stephen House and Herald editor, Jonathan Russell, but Salmond is right in one respect. As a judicial proceeding sitting in London, presided over an English judge, under English procedure, assisted by English lawyers, Leveson has focussed pretty unstintingly on the activities of Fleet Street and the Metropolitan police. And fair enough too, to some extent.

But given the vast ambit of his terms of reference, overburdened by points of interests and questions to be examined, I'd be shocked if Leveson really has anything interesting to say about what has transpired north of the border. It simply isn't a priority among his many priorities. But shouldn't the subject interest Scottish politicians? Shouldn't this trouble parliamentarians who are generally keen to cultivate an alternative Scottish political space? Perhaps even trouble them into activity? Remember, press regulation is not a reserved matter under the Scotland Act. Devolved institutions may decide to defer to Westminster-ordained investigations, but they need not. Given this weekend's revelations from the Sunday Herald, the complacency and indifference of Scottish politicians about the implications of the hacking scandal for Scotland and in Scotland is increasingly inexcusable.

Law's delays & the insolence of office...

I'm delighted. At First Minister's Questions today, just a short time after the conclusion of the Stage 1 debate on the general principles of the Scottish Government's Offensive Behaviour at Football and Threatening Communications (Scotland) Bill, Alex Salmond announced that the legislation will be delayed for six months. Time will be afforded for further evidence sessions and more extended examination of these proposals. Parliamentarians will not be forced into a final vote on all of the issues next week. This is very welcome.  It also made for a bizarre edition of FMQs, with Iain Gray, Annabel Goldie and Willie Rennie left flailing, totally wrong-footed - their raft of critical questions about the detail of the Bill suddenly losing their political vitality. Iain Gray had the hardest time of it, having to flim-flam through a number of spent supplementaries, while Rennie made no attempt to recover from the crumpling of his pre-planned inquisition, simply thanking the First Minister in lieu of asking him another question on any topic of his choice. Ciceronian stuff.

The Bill as drafted is a mixed bag in policy terms, with a good many outstanding issues of legal definition and extent which need to be properly thought through. Despite superficial agreement on the goals of the legislation, there are also much more fundamental issues of principle, including the criminal regulation of speech and ideas, which have not yet remotely been explored. For instance, I think putting threatening communications on a statutory footing is a wise idea. The common law on uttering threats is profoundly difficult for any interested member of the public to come to any understanding of. That said, I am very much opposed to the idea of "bringing Scotland into line with England", and summarily introducing a law criminalising "stirring up religious hatred". The SNP used to share that position. I have not heard an adequate explanation about what has changed in five years, to turn SNP opposition to Blair's proposals into support for these proposals. Adherence to the directions of the party leadership and an unquestioning faith in their good judgement is not a principle I am willing to live by. Thankfully, with a longer timetable for examination of these plans, such issues can now be properly aired.  Or at least, the possibility for a decent discussion is not briskly foreclosed by a weary, pre-summer examination, with one's tired mind fixed on sunlit climes and empty, relaxing days. Whether or not I agree with the final shape of the final Act, a decent deliberative process on these issues is vitally important. All credit to Salmond, albeit belatedly, for conceding the point.

On the proposed football-related offenses, there are a number of complexities. I don't disagree with the analysis that the scope of breach of the peace has narrowed in recent years. As Roseanna recognised in her evidence to the Justice Committee, there are differences of opinion about the extent to which the criminal law should be defined in clear and comprehensible terms. Some would seek to defend greater flexibility (for which read, lack of definition and case-by-case judicial decision-making) - others would insist on the virtues of clarity and comprehensibility in our criminal legislation, even if that affords the law a more limited regulatory capacity, letting some bastards off.  Long term readers may recall the outrageous decision of the Court of Justiciary in Hatcher v. Procurator Fiscal, Hamilton, in which the public/private distinction left a great many people without legal protection from domestic abuse not amounting to assault. Anticipating this development, Holyrood had already passed § 38 of the Criminal Justice and Licensing (Scotland) Act in 2010 - and commendably, the Government speedily brought the section into force, in the light of the Hatcher judgment. The section introduced a new offence of "threatening or abusive behaviour". Unlike common law breach of the peace, § 38 does not require a "public element". This still-youthful offence is already on the statute book, but has been almost entirely overlooked in discussions of this Bill, with the limitations of breach of the peace being pressed into service, to justify the new provisions. This is problematic.

On the 15th of June, I argued that there was a strong political case for delaying the Offensive Behaviour in Football and Threatening Communications (Scotland) Bill.  The SNP majority in Holyrood has already been assailed by the argument that it enjoys excessive (albeit democratically mandated) dominance of the institution and concerns that its convenors in the parliamentary Committees and wealth of backbenchers might not prove themselves of sufficiently stern and independent mettle, to hold the government to account and properly scrutinise its proposals. Delaying their "anti-sectarianism" Bill, I suggested, was an excellent opportunity to emphasise these credentials, both for the government and its cohort of backbenchers and convenors. I wrote:

"It strikes me that if you have to change your mind in government, why not change your mind on an issue you actually got wrong, which is unlikely to do you any political damage in the longer term, which serves the difficult function of emphasising the independence of your own backbenchers and government submission to parliament - and for which the opposition will find it difficult seriously to criticise you? Such a conjunction of factors seems unlikely to recur any time soon. Against this proposal - and the political case for deferring the Bill - you might put up the argument that so radically to depart from your ordained schedule for the first major policy act of your re-elected administration is a sign of weakness or an admission of error."

I am under no illusions that Salmond took my advice - but these positive political arguments for deferring the final analysis this Bill stand. While some may crow about muck-ups and boorachs in the Scottish Government, and who knew what when, Salmond's decision to alter the Bill's timetable is a very visible indication that he will not use his office insolently, imposing an imperial will on the parliament and the country, despite the well-grounded complaints of both. In many respect, the Bill's pace only aggravated rather than alleviated these concerns about the SNP's power in the institution and the role of its backbenchers. Beyond the politics of impressions given, there were also plenty of good, substantial reasons for checking the hasty passage of this law. There were the hasty evidence-taking sessions before the Justice Committee, which were troubling insofar as both Ministers and members struggled at times to entertain a proper discussion about the legal scope of the proposals, fully in command of their brief. Moreover, in the short intervening period between publication and consultation on the text itself, the Committee attracted a number of written submissions from individuals, churches and football clubs, concerned at the breakneck speed of the legislation.  Moreover, this legislating-at-speed caused the Scottish Government to be faced with a legal action in Scots Courts. Represented by Aidan O'Neill QC, the Christian Institute and CARE for Scotland had plans in train to seek an interdict from the Court of Session against the government's actions. Whether or not this action would have succeeded, such things have to be defended - and added to the manic air surrounding the legislation. 

Given Salmond's reputation for cunning, some will likely try to convince us that this move was planned all along. This does not strike me as convincing. First and foremost, if Salmond had schemed the whole scheme out in advance, then Roseanna Cunningham has particular cause to be profoundly aggrieved with him. In this morning's Stage 1 debate, the Minister continued to defend the government's public timetable and emphasised the problems which, in her view, would attach to introducing new legislation in the middle of the coming football season, rather than at the beginning. With the delay ordained by the First Minister, this second scenario is now the policy of the Scottish Government. The parliament's stage 1 debate began at 9.15 am and ended with General Question time at 11.40 am. So, either the decision to change course was made after the debate had begun - or it was made long before and Roseanna got needlessly screwed over. Either proposition is plausible. If you watch the footage of FMQs, you can just spot Ms Cunningham abstaining from joining in with her colleagues' applause to the Maximum Eck's answers. Significant? Mibbies aye, mibbies naw.  For my part, it strikes me as much more likely that this is a last minute change of direction, made when Cunningham was in the parliament and on her feet, and that the news came as something of a shock to the junior Justice minister. Machiavelli, it wasn't. For this reason, I imagine Cunningham will be incandescent about having the legs unexpectedly taken out from under her in the chamber of the parliament - and understandably so. It would be enough to make many ministers consider their position. Yet, as Alex Massie contends, this isn't the end of the line...

"Thinking again is a good first step but no more than that and will be worth little, in the end, if the bill survives in anything like its present form. Government has no right to peer into men's souls and nor should it be entitled to place unwarranted restrictions on their speech and thoughts, far less suppose that even a draconian, catch-all bill of this sort can actually achieve any of the aims - however worthy they may be thought - its few remaining supporters desire ... Good sense has prevailed today; some vigilance is still required."

For all that, credit is due. It would have been all too easy for the government to crash pig-headedly on, cuffing and cudgelling their way out of their predicament, feart that they'd take a drubbing for changing their plans at the behest of others and the implicit recognition that their original haste was folly.  They did not do so.  There did not appear to be many stirrings on the SNP backbenches, that would disturb the stately passage of this flagship policy, if Salmond had insisted on it. He did not. Against the sea of troubles roiling about his Bill, Salmond decided to take such slings and arrows as are flung his way - and lay down his arms. No doubt the Maximum Eck did so unhappily, hand forced by circumstance - but it redounds to his credit that he didn't charge on in the face of everything. For the first time in several weeks, we have a politically cheerful Peat Worrier, turning the clods with a ruby whistle on his lips.

Politics Show Scotland: mediocrity, vacuity & mendacity...

Today, my whole spirit has been prodded by a non-specific sense of general irritation with life, the universe - the plants, the flowers - the sunshine. It is most uncharacteristic and I blame the Politics Show Scotland, rather unfairly, which was monstrously awful this morning. Annabel Goldie, Gray, Salmond and Tavish Scott were all jostling with Isabel Fraser, flinging in snidey little asides, being obscurely jargon-governed and insiderish - each doing their weather best to make the whole panel look like the four finalists in Scotland's Political Cretin of the Year 2011.   The format encouraged the four folk involved to behave like horrid bullying weans, tweaking each other by the tit and howling discord. Watching them, I conceived of the gummy, sneery lineaments a crowd of  hobby-horse mounted brats, snarling their peals of dirty mirth, kicking sand into the eyes of their opponents and lodging sneaky knees in the soft portions of each other's anatomy. Edifying, it was not.

I overfloweth with vexed similes. They were a scabby nest full of shrill, overfed chicklets, yammering for attention, making one long for a larcenous feline to rob the nest, and bring back blessed silence. Downy little lives be damned. Like hyenas tearing into the putrefying carcass of some hapless gnu, each was keen to spatter themselves and their fellows in the loose mucus and gore of totally vacuous partisanship - and everything which makes me, and I dare say much of the population, come to despise elections.  I enjoy the flyting of FMQs. I like a bit of spirited to-and fro. Today's Politics Show Scotland cut a simply contemptible scene. You could almost see the wholly mistaken calculation take place, the heavy, rusted cogs of the politicians' consciousness clanking thickly. I know how to make myself seem like a terrifically robust fellow, wielding my blunt little foil in debate - I'll handily bludgeon the buggery out of my limping foes - triumph will be mine! Annabel Goldie was arguably the worst offender. She seems to imagine that it makes her seem splendidly robust and doughty to brain her opponents with an outsize rhetorical  handbag - lest she lose her position as the foremost doily-thuggee in the country - her shrill invocation of common sense the ritual demonstration that she has all the discrediting unreflectiveness of a brick. All the rest were equally contemptible, squalling, shrieking, interjecting. This unfettered gobshitism made me hope that one of the eight elbows which were so endlessly being thrown could have caught in a throat or plugged a single sodding gob - how I would have rejoiced at the muteness!  It was enough to turn this particular Peat Worrier into a vinegar bottle of ever advancing acidity, as this understated account of proceedings demonstrates with characteristic mildness.

An utterly loathsome parade of mediocrity, vacuity and mendacity. An excruciation, sans charm, sans grace, sans substance. Shut the hell up.

Holyrood's last judgment...

It seems appropriate that the Scottish Parliament's last judgment will be to strip Scots criminal proceedings in the most serious cases of their ancient finality. The third Scottish Parliament will meet tomorrow for the last time. The Jabbereck and the Snark will trade their final, ritual blows. Our tribunes will tender their thanks to their erstwhile shepherd, Presiding Officer Alex Fergusson, before casting their votes at one o'clock in the third and final stage of the Double Jeopardy (Scotland) Bill. Several faces will be leaving their seats in the chamber for the last time. Done. Finished. Over. Go. Move. Shift. Such moments of change have their sadnesses and their green shoots. A parliament dissolved anticipates the parliament shortly to be formed. The heavy drumbeats of the election begin to sound more urgently.

Before being too beguiled by that beat, it is worth paying attention to the final stray crotchets of the parliamentary term and its last business. Opinion is divided on whether these Scottish developments on double jeopardy are virtuously sheep-like, a deliverer of the just, or a caprine-capricious mechanism to rob the acquitted of the security of having tholed their assize and escaped the lawful persecutions of the Crown. In the parliament, only the brace of Greenies are likely to oppose the Bill, which will otherwise be adopted by general acclaim. If you are new to the issue, and curious, the Scottish Parliament Information Centre (SPICe) have put together this brief stage 3 briefing report which sets out the new regime very neatly - and much more succinctly than my rather dispersed thoughts as the Bill has progressed. 

The proceedings have been extensively covered on this blog, most recently at stage 2, where I shared pious reflections on A Thole in Jeopardy. To condense the legislation's provisions, if you subsequently admit your guilt, or taint your first trial by jiggery-pokery, your acquittal can be set aside whatever offence you were acquitted of, whatever court you were tried in. If, by contrast, new evidence emerges against you after you have been acquitted, you will only be able to be retried if your first trial took place in the High Court of Justiciary. If you are acquitted by a sheriff, or a sheriff sitting with a jury, that finding is final and the general double jeopardy rule applies. There are a number of other qualifying sections and clauses on this - most critically that in each and every case, the High Court of Justiciary must agree to set aside an acquittal if a re-trial is to occur. However, those are the basic features of the new legislation. As I noted in A Thole in Jeopardy, the final Act will cover a much greater number of offences than the Bill first introduced by Kenny MacAskill, but the number of cases it will conceivably apply to is smaller. These new exceptions to the double jeopardy rule will be retrospective, applying to past acquittals. However, as a Scottish Law Commissioner pointed out, it has not been the practice to retain evidence where the accused person has been acquitted of an offence. He told the Justice Committee:

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."

As I have discussed on two previous occasions, while the new evidence exception might be used to re-prosecute Angus Sinclair for the so-called World's End Murders case, this looks extremely unlikely, calling for new evidence to materialise which "substantially strengthens" the case against the accused and critically, new evidence that "was not available, and could not with the exercise of reasonable diligence have been made available, at the trial in respect of the original offence" - amongst other things. In Sinclair's case, this seems like a very long shot, this long after the horrible events took place. Whether these changes are good or bad - we should be exceedingly skeptical about ministerial assurances that this new Act will be sparingly applied in all time coming. The terms of the Act certainly give the High Court of Justiciary a mediating role, if the Lord Advocate determined to pursue an aggressive and much more wide-ranging re-trial policy than policy-makers intend. For my part, I don't anticipate a slew of cases in the short to medium term. However, at its most simple, this is an Act to empower public officials to pursue particular courses of action. The bare text of the legislation does not speak to how they exercise those powers, nor how regularly they might seek to rely on its sections. The "reasonable diligence" qualification to the new evidence exception clearly seeks to ensure that the authorities do not wilfully truncate their investigations, just in case their preferred suspect is acquitted at trial. By limiting the exception only to evidence subsequently discovered beyond reasonable diligence, any temptation to keep the possibility of a future double jeopardy exception being applied in the backs of their minds, to get two chomps at the cherry, should be discouraged.

The Double Jeopardy (Scotland) Act will make what was once impossible possible. It will doubtlessly see greater substantial justice done in particular cases and for that reason, I've come around to a more supportive position. However, I still have outstanding concerns about the sorts of cases it might apply to. For example, under the new provisions, any High Court acquittal can be retried, whatever offence was alleged. Had the Satsuma Socialist been on more Ciceronian form last year, and got himself acquitted, that acquittal would have been continuously vulnerable to review and recall. It is a concern - and how the Crown use these new powers will have to be very closely attended to in the coming years.

Shock result! Labour in 1% poll lead!

Which well-educated metropolitan monkfish, in the waxy fleshiness of early middle-age, recently opined that “Wisdom is not the preserve of any one party. Frankly, the political establishment too often conducts debate in a way that insults the intelligence of the public”? With the advancing prospect of the Holyrood 2011 election, I've braced myself for the onset of logical fallacies and the trilling melodies that usually accompany them. In particular, next year we're bound to be treated to endless examples of a weary argumentum ad hominem - or more classically, the argumentum ad Toriem. Sneery Labourite hollowheads ask "What's the difference between the Tories and the SNP anyway? They're just Tartan Tories!" Cue responses "Look at that sleekit New Labour crowd, with their greedy, privatising, market enthusiasms. They're the very spit of CamCam and Gideon!" Scuffle, melee, accusation, repeat.  

I'm not saying that these statements don't raise issues which we could - indeed ought - to explore as we seek to understand what different parties stand for and intend. My point is that these asides are not generally an invitation to think - to identify and admit the significance of real differences - to explore the reasoning, philosophy and understanding underwriting particular choices and policies. They're the partisan scoff of the lazy cynic. As anticipated, the dreaded absurdities have already commenced. In a recent SNP party news release, Angela Constance MSP is quoted ruling out an SNP-Tory coalition, emphasising that

"... Labour had still failed to categorically rule out a coalition with the Tories despite their rhetoric. Ms Constance also highlighted how Labour couldn’t be trusted on the issue since they had voted with the Tories most in the Scottish Parliament since 2007 and also had coalitions with them in five councils – compared to ZERO for the SNP..."

Iain Gray treated us to a similar analysis at a past FMQs, which didn't so much turn the argument on its head as much as knock the questioner onto his bottom. The piece appends this ludicrous table:

1. How often parties have voted with the Tories in the Scottish Parliament since May 2007:

Labour - 46%
SNP - 45%
LibDem - 43%
Green - 32%
Margo - 28%

It is a phenomenon which has often puzzled me. Why do many Labourite commentators seem so urgently to wish that the SNP is a racist, right-wing nationalist party? Polemical positioning this might be, scratching after votes. That might be understandable, but forgive me - it hardly seems very honest or even very constructive. Why must we pretend that our opponents are simply wrong about everything? Why must we skirt over real disagreement as if it were inconsequential? Additionally, paradoxically, why must we insist that we shouldn't sometimes agree with Tories? In terms of rebutting Labour accusations of party Tartan Torydom, this sort of bizarre percentage analysis may be fair game.  Et tu quoque. 

Yet the absurdity of squabbling over a 1% Toryish voting differential hardly bodes well for a meaningful discussion about things of actual significance, or any sense of proportion about what issues parties agreed on, and where they disagreed. Take freezing the council tax, for example, or increasing police officer numbers, or mandatory prison sentences for knife crime, or the contested abolition graduate endowment - or a slew of other measures which are adopted consensually by the parliament, without provoking intense political speculation. Are we seriously suggesting that our politics should be governed by the inverse-Tory principle, where we wait for Dame Bella of Doily to announce Tory tribunes' voting intentions and them promptly, reflexively oppose all their endeavours (and our own which they happen to agree with)? I'd be interested (mildly, oh so mildly) to see a statistic which both Labour and SNP speakers tend to leave out - in what percentage of votes did they agree? 

It is possible to say an exculpating word here. Perhaps we should treat accusations of Toryishness as a sort of short-hand, an ensemble phrase whose chains of reference - if dutifully followed - would lead us to a meaningful discussion of substantive issues, exploring how the Tories policies are wrong-headed. Why opposing the end of the graduate endowment was wrong, why opposing the end of short sentences was wrong, why we shouldn't have mandatory prison sentences for those who are found with pointed weapons, why Trident should not be replaced, why the Scottish people should have a vote on independence - and so on, and so on. Those, it seems to me, are the issues that matter.

Not this demented ad hominem calculus, dancing on the raw-edged nerve of a single percentage point.

August's cucumber days...

Summer recess and the Silly Season can be a difficult time, even for those of us who entertain pretensions to plough our own furrow. Our Dutch friends apparently call this time of year Komkommertijd. However, it is reassuring to learn that the frustrations of these cucumber days are nothing new. In the latest instalment of my transcription poems from beyond the grave, the ghostly outline of Thomas Hood (d. 1845) formed at the foot of my bed, and offered to share this early draft of his poem "No!", pouring execration on immobile November, when all life seems elsewhere. Turns out, he originally based the work on August, but despaired of the rhyme. With deft poetic legerdemain, he coaxed his grey spirit into similar gloom in the month of November and was able to finish the piece as we remember it today. Here, however, was his first attempt. He certainly captures my own, rather blog-blocked feeling in the prevailing atmosphere of this August...

"August"

Just nowt -- no news!

No PM -- FMQs!

No cut -- no thrust -- no stories to peruse--

No vent -- no blogable views--

Guilty longing for a death, or coups

Recess -- recess -- endless recess blues --

No start to any row --

Unjust disgust - where are you now?

No baiting bishops -- no pieties from the steeple --

No nonsense from the familiar people --

No legislation to mistrust, no events, no scandal --

No traveling at all-- no promotion --

No minister being spanked by a sequinned sandal --

No punch-up in the Cabinet --no scandalous demotion--

No mail -- no post --

No fun from any foreign coast--

No snark, no greedy son, no jolly ballyhoo --

No senility -- no surprising virility --

No fuss, no satire cussed, no gadfly tease,

No execrable spiel from any Member -

No writ, no case, no litigant disgraced

No moats , no duck house, no votes, no horses' oats!--

No more! No more! I'm about to encrust --

An end! An end! to this cursed --

August!

~ Thomas Hood (before he realised that November would scan much more happily ...)