Gallimaufry: sirens, tasers & student fees

I have blogged significantly and at length before, both on ongoing debates about Labour and Tory plots to impose minimum prison sentences on knife carriers and on the legality of the Taser pilot presently being conducted by officers of Strathclyde police. On the 3rd of June, both of these issues reappeared at Holyrood, during the Justice & Law Officers themed Question Time. Ted Brocklebank - not usually a Tory contender for would-be Inquisitor-in-Chief - pressed Kenny MacAskill by asking "... what percentage of those prosecuted for carrying a knife in the last year have received a sentence of six months or less (S3O-10781)? The answer for 2008-09 is 18%. Prompted, a certain Labour tribune took to his trotters. When Ian Gray doesn't feel like it, Richard Baker - Labour's Swine Pursuivant - is given this egregious, uncosted policy to play with. Usually his tenor is of pigling bland outrage, his rind seasoned just a little with the flippant spice of the student debater. Today, our punitive red roaster attempts stinging wry befuddlement. 

Richard Baker (North East Scotland) (Lab): Why has the cabinet secretary lodged an amendment to delete the provisions for minimum mandatory sentences for knife crime that were passed by the Justice Committee at stage 2 of the Criminal Justice and Licensing (Scotland) Bill? That is particularly puzzling, given that the president of the Association of Scottish Police Superintendents, Chief Superintendent David O'Connor, has said: "we find it increasingly difficult to oppose calls for the introduction of a minimum mandatory period of imprisonment of six months for any person carrying a knife ... in a public place."

Kenny MacAskill: I have done so because I take the advice of Chief Constable David Strang, Chief Constable Stephen House and Chief Superintendent John Carnochan of the violence reduction unit, all of whom have argued that the proposal by Mr Baker and others would not work. We do not need an unseemly bidding war, with six months from Mr Baker, two years from Mr Brocklebank and four years from Mr Bain, the member of Parliament for Glasgow North East—yes, four years he said, simply for carrying a knife. Why not add a zero to that or two zeros and let us get on with it? We have to support the measures that are working—tough enforcement, more stop and searches, visible enforcement in the courts and ploughing money back into diversionary activities to ensure that kids are given the opportunity to be all that they can be. Members can say what they like, but the record speaks for itself. In Strathclyde and elsewhere, progress is being made.

Rather well put, I thought. Matters subsequently turned to the legality of tasers. Canny Robert Brown asked the Scottish Executive about its responsibilities for policing - clearly echoing the human rights law analysis conducted by Aidan O'Neill QC on behalf of Amnesty International. MacAskill reiterated his entrenched position, namely, that ~

Kenny MacAskill: The Scottish ministers do not have legislative powers to direct the police on operational matters. We have no competence to issue guidance on the use of firearms, including Tasers, since the matter is reserved to Westminster. For the same reason, the Scottish Parliament has no power to legislate on that. In 2004, the Scottish ministers in a Labour-Lib Dem coalition supported trials of Tasers in Scotland, which led to the operational use of Tasers starting in 2005. Mr Brown might have been dealing with matters expeditiously then, but what we are seeing now is a bit of cant and gross hypocrisy. Members can rest assured that, when officers are in situations in which they and members of the public face danger, they will have the Government's full support in doing what is necessary. The matter is an operational one, but Tasers are used proportionately and legitimately by hard-working and brave Scottish police officers to defend themselves and other citizens in our communities. We will make no apology for that and we will never interfere in it.

Not to be outdone, and so we don't forget how pig-headed and vilely idiotic the man can be, Baillie Bill Aitken took to his feet and opined:

Bill Aitken (Glasgow) (Con): Does the cabinet secretary agree that the problems that are associated with Tasers have been exaggerated, and that if anyone wishes to avoid coming into conflict with police officers armed with Tasers, they simply have to refrain from acting violently?

I can almost imagine his pickled onion face, peeling in self satisfaction as he declaimed this profound self-evidence. Oh how we shall miss ye, Old Judgement, the People's Baillie.

Holyrood Student Fees Debate

The 3rd proved a rich debating day at Holyrood, in the afternoon turning to a motion on student fees sponsored by the Cabinet Secretary for Education, Michael Russell. Quite frankly, it astounds and astonishes me that Scottish Labour figures find a way to speak to Scottish students at all, never mind trying to dress themselves up as improbably champions of that constituency's causes. Their tribunes seem unabashed about their attempts to block the abolition of the graduate endowment - a move which ever student affected will be able to compute very tangibly to their benefit, to the tune of around £2,000. A clear dividend of Scottish Nationalist government, one grossly threatened by any upward march of the tattie tribunes in scarlet. I should be less innocent by now. From my own university days, one of the first things I learned about student politics was how Labour specialised in creating slavish toadies in the student class, attempting to promote these compliant souls to representative positions and generally quiet the student beast with their own placemen, all too keen to caper at the base of the greasy pole. The collapsed political (and no doubt to some extent personal) life of Labour's young erstwhile Westminster candidate in Moray, Stuart MacLellan is an essay in the type. Yet modesty and shame are not Labour virtues, I'm afraid. In his usual rollicking, imperious fashion, Mike Russell stuck it to the boisterous Helium Harpy, Karen Whitefield et al. A couple of Russell's particularly pungent leapt out at me as worth general mention. As vivid parliamentary prose goes, this is the good stuff.

Michael Russell: Every Labour speaker has mentioned the need for consensus, which echoes my own desire. However, consensus must be based on facts, and I want to give the facts about a number of things that front-bench Labour members raised, because they need to be corrected. The first is the delusion about resources and funding. The Scottish Government's budget has been cut by £500 million, and further cuts are coming. We must all face that problem. I was trying to think of a comparison to illustrate the Labour approach—this morning at First Minister's questions, this afternoon and no doubt in the health debate earlier—to the reality of the situation in which we find ourselves. The only comparison I could think of was that, astonishingly, Labour now resembles a group of arsonists who, having laid waste to the Scottish budget and the finances of this entire island, now run about complaining about the heat, the smoke and the sound of fire engines. They are the people who are to blame, and nothing will allow us to avoid that."

And stressing a point which can be cheerfully expanded to much of Labour's positioning (albeit with mild qualms about imagining either Ken MacIntosh, wee Clair Baker or Karen Whitefield as a clutch of life's natural sensuous sirens) ~

"I am not listening to the siren voices of Labour members, who just want me to say something so that they can contradict it. During this afternoon's debate, I was very much reminded of the remark from my old friend Andrew Wilson, who said in the first parliamentary session that, if the SNP had invented the light bulb, Labour would have called it a dangerous anti-candle device. That is precisely what we have heard this afternoon. We cannot say anything but it is contradicted."

Sheriff Principal James Taylor: Breast Inspector

The other day, I mentioned Sheriff Principal James Taylor's judgement in the breast inspecting case which saw the restoration of the license of one of Glasgow's lap-dancing establishments. For enthusiasts and the particularly keen, his full opinion in Kell (Scotland) v. Glasgow Licensing Board is now available here.

Thomas A Swift’s Electric Rifle in our sights...

Do you know why they’re called Tasers? Rather picturesquely, Taser is an acronym for Thomas A Swift’s Electric Rifle, a title selected by its inventor Jack Cover in honour of the Tom Swift series of youth fiction novels. First published in 1910, I gather they were full of youthful inventiveness, high jinks and juvenile firearm production. Like Enid Blyton’s much-neglected Famous Five Try Nuclear Fission (1944) title or the Secret Seven Stage a Small-Scale Covert Incursion into Enemy Territory (1956). The title referenced in the Taser acronym is the jolly old Tom Swift and His Electric Rifle edition of (1911). You won’t be frolicking if you get needled by one, however, although you may flail about like a manikin with its strings rattled. Contemporary taser technology flings out a crackling 50,000 volts and costs the polis £1,000 a piece to purchase.

The nub of recent controversy over police use of taser technology in Scotland concerns a pilot that is being undertaken in Glasgow City Centre and Rutherglen. Thirty officers in Strathclyde Polis were trained “over a three day period” in the use of stun-guns, including on “the proportionate use of tasers in line with human rights.” The pilot commenced on the Monday 12th of April. As I mentioned at the end of last week, Amnesty International secured a legal opinion from Aidan O’Neill QC on the legality of this pilot project and have called for it to be suspended, based on his submissions. 

But what is the nature of his legal arguments? How do these relate to Amnesty's overall argument against the deployment of Taser technology? And just how effective is that combination anyway? Headlines cry – taser pilot contrary to human rights! - taser pilot unlawful! Which rights, and unlawful in what way you might well enquire. I agree with the Scottish programme director of Amnesty, John Watson that "... most folk just want to hear the basic arguments and leave the legal detail to others."  Equally, the detail is fundamentally important for the law and politics of the thing. Or at least, that is what I intend to try to demonstrate in the subsequent discussion. 

I must admit, I was initially rather suspicious of the lack of information on Amnesty's site, when I searched for the relevant news release. I have a magic piece of paper in my pocket that says you are wrong - but no, you can't see it - that smells fishy to me. To be fair, all it took was a brisk e-mail and they were gracious and helpful in providing me with full copies of O'Neill's advice, the letter to Kenny MacAskill and the Executive Summary. Interestingly, I also gather that it was this summary that was sent to all MSPs and members of Strathclyde police authority. Compared with the more closely worked, more intertextual advocate's opinion, the summary contains a very much reduced version of O'Neill's more nuanced arguments. My point is that our tribunes aren't being asked to scrutinise or even engage with the legal analysis itself - there is a significant dollop of argument from authority, here. Even more so in the case of a casual member of the public, interested in the issue, who could not even access the summary document without being impertinent enough to ask for it individually. This fact in itself is somewhat interesting, in the sense that it shows how groups like Amnesty operate in a network of those in the know, strategically facilitating press reductions of complexity into happy headlines sure to put pressure on your opponents in the public sphere. It also tells us something significant about how difficult they seem to find it to get policy makers, never mind the public common, to actually read detailed documents on complex issues.
 

Thus, those just skimming headlines, without getting an eye full of the argument, may be disposed to conclude that O'Neill suggests that the pilot is fundamentally unlawful. That the electric eels coiled inside the instruments themselves are wicked and pernicious and cannot but inflict degrading and inhuman treatment on those they strike at.  Not quite. O'Neill's arguments focus on Article 2 of the Convention - the Right to Life. It being admitted that the use of Tasers can kill people, the question becomes one minimisation and control of the State's death-dealing technology. In fact, O’Neill’s submissions (although not unimportant) are a classic of a certain sort of dry human rights genre. Loosely, we can think about it as the Arbitrariness Problem. It is not really concerned with suffering caused or potential fatalities induced by massive, crippling bursts of electrical energy, per se. Nor does it specifically address the virtue of the use of tasers whether as a general bit of kit, common to all police officers, or the limited armament of a particular specifically-trained cadre of Authorised Firearms Officers. Rather the human rights argument is primarily about the demand for law. Its formulation is - because tasers can kill people - we need clearly delineated guidelines for their use. Not - tasers can kill people, therefore law enforcement officers shouldn't use them.

"Unregulated and arbitrary action by State agents is incompatible with effective respect for human rights. This means that, as well as being authorised under national law, policing operations must be sufficiently regulated by it, within the framework of a system of adequate and effective safeguards against arbitrariness and abuse of force "

This is not human rights law at its most expressive. Previous examples of the Arbitrariness Problem in Britain included wire-tapping. In the days when there was no legislative framework, the Chief Police Constable merely gave his fellow officers the nod to invade the suspected criminal's house, stick bugs in his furniture and generally play official Peeping Tom to find out what he was up to. No on, said the European Court. We can blame Napoleon for the restless typographic spirit of European legalism. It sits, sometimes rather uncomfortably, beside the apparently looser strictures of the Common Law. In sum:

What is of particular concern from a Convention rights standpoint is that there appears to be no readily accessible clear and unequivocal policy setting out the circumstances under which Taser might be used and the legal limitations on its use. Certainly the Scottish Ministers have not set out any such policy document.  No such policy appears on the web-site of policies of the Association of Chief Police Officers in Scotland. A search of “Taser” on the Strathclyde Police web-site as at 6 April 2010 bring only a reference or link to a police press release publicizing the fact that the pilot scheme extending Taser operational use was now in place.

Not what you expected, perhaps? The structure of the argument should alert you to one clear conclusion. If such orderly ministerial material was available and such guidelines clearly delineated, there is nothing in European Human Rights law to stop every police officer in Scotland carrying a taser in his or her back pocket. The human rights problem appears because of a lack of lawful authority and the need for lawful authority which human rights law requires. Aidan O'Neill QC's note of advice again:

I do not consider that, under the Police (Scotland) Act 1967 , the local police authority is given the power - whether by its consent (or failure to object) - to clothe the scheme in any lawful authority.    And I do not consider that the Chief Constable of police forces in Scotland are given authority under the Police (Scotland) Act 1967 to provide the necessary written authority required under Section 54(3) of the Firearms Act 1968 for the purchase or acquisition of firearms and ammunition for the public service. Instead the power to grant such authority is one which Section 5 of the Firearms Act 1968 invests in the Scottish Ministers.

Politically, where does that leave us? MacAskill is probably wriggling, uncomfortably. The Maximum Eck seemed to be sticking to his guns at First Minister's Questions last week. If we are hostile to tasers, is this helpful? Not necessarily. As you will have seen, this is a proceduralist type argument. Not unimportant, certainly not unimportant. But as I say, it is not a firm basis to oppose the use of tasers per se. In fact, if I was an enthusiastic supporter of electrifying recalcitrant arrestees, it would be all too easy to take all of these arguments on board and outfit my whole force with the stun guns. The good of it, at best, is that it drags the issue from an "operational matter for the Chief Constable" into the public forum. I strongly doubt, however, whether European human rights law is a strong rampart from which to defend the further political argument - that we should strictly limit how many police officers are armed with these instruments of electrical incapacitation and in what circumstances they should deploy them in. After all, just visit Europe. One cannot help but be struck by the ubiquity of firearms in the holsters of the more our neighbours more militaristic gendarmes.

This, in an important sense, is as it should be. Human rights law may draw lines on the edges of the map - but it is for us, through our politics, to chart our way across the landscapes of possibility that remain to us. Amnesty won't be able to lean long on legalisms. The question, it seems to me, is this. Do we want  police forces fully armed or not? On this point, it is illuminating- very briefly - to quote from some of the Parliamentary answers which O'Neill arrays in his Note from the period of 2004 till the present day.  They disclose the recent shifts in position. On the 18th January 2006, Cathy Jamieson told the parliament that:

The Association of Chief Police Officers in Scotland (ACPOS) approached the Scottish Executive in September 2004 seeking Scottish ministers’ views on extending the operational trial of Taser as a less lethal option for Scottish forces in dealing with firearms incidents.

Also in 2006, Jack McConnell said that:

Tasers will be issued only to authorised firearms officers who have successfully completed an approved training course in the use of the device.

Yet the Strathclyde Police notice, announcing the pilot, declares that the:

The aim of the pilot is to curb the number of assaults on officers.

And crucially, the thirty pilot officers equipped with Tom Swift's Electric Rifles are also not authorised firearms officers, either. Like a scruffy Vicomte Sébastien de Valmont, Kenny MacAskill's repeated answers to all of this is that it is an operational matter for Police Chief Constables: "Its beyond my control". Fundamentally, I don't find this terribly convincing, nor is it a satisfactory answer to the police on their own motion accumulating any number of instruments of death or painful incapacitation. If I had to guess, much of this Ministerial stubbornness may be brought on by anxieties about the ever-more-familiar "soft touch Scotland" line. After all, how soft touch is nabbing a suspect by blasting them into a fugue by subjecting their gonads with massive electrical currents? I've always supported the idea of our police force not carrying guns, but having access to well-trained fellow firearms officers, if the situation was of sufficient extremity to call for it. I would therefore entertain significant qualms about any scheme to arm every Scottish officer with an electric rifle, however orderly and lawful the governing provisions might be, setting down circumstances for their proper use.  Amnesty's intervention may be a mechanism to begin a public discourse on Tasers. In that discussion, however, we largely leave behind the arguments of human rights law, and assume all the responsibility and difficulty of politics. As it should be.

"Yarr, Compass points Nor'-Nor'-East Cap'n!"

"Now north, now south, now east, now west,
The wavering point was shaken,
'Twas past the whole philosophy
Of Newton, or of Bacon;
Never by compass, till that hour,
Such latitudes were taken!"
~ Thomas Hood, From The Compass, With Variations

My declared intention on Thursday was to write some more involved comment on Amnesty's International's legal conflict with the Scottish Government of the legality of the Strathclyde Taser pilot. I anticipated tthat his would appear on Friday. Unfortunately, I wasn't able to obtain the relevant documents - including the whole text of Aidan O'Neill QC's opinion - until Friday morning and then the usual tyrannical hobgoblins of work dragged me back to the duties of my day job. At any rate, I have now accumulated the relevant bits and pieces of text. (Thanks for your gracious assistance, by the by, are owed both to Amnesty's Scottish office and the ever-estimable James of Two Doctors). The promised blawg on Tasers should slip free of the treacly inhibitions of delay and manifest here at the beginning of next week.

One point I've also discussed before is how often blogging begins in media res. Many citizen commentators have particular affiliations that allow us to allocate them to a particular groups, your Labour activist, Tory boy, SNP sympathiser, Liberal Democrat member and whatnot. These affiliations may imply general features of these authors' political beliefs, allowing us - as readers - to predict somewhat that their  principles  they will be committed to, what partisan tribes they've joined, and hence, what their response to the political subjects of the day will be. Categorisation in this way can be a great comfort, a great compressor of diverse complexities into a word or two that condenses multiplicities into workmanlike categories of understanding. It can also lead to befuddling confusions, if we don't narrow our eyes and strive to understand the judgements underlying the polemic. Starting in the middle of things frequently leaves these judgements deferred. As a result, as Malcolm Harvey has repeated discovered (to his sometime mortification), folk can acquire the queerest ideas of where you stand on the political spectrum and who you stand beside. 

It never seems appropriate to draft a post entitled My first principles, from which all subsequent postings shall be derived. This pervasive source of uncertainty in blogging - and reading blogs - was brought back to my mind earlier when I noticed that  Subrosa has been orientating her x values against her y values on the Political Compass. Although not an unproblematic mapping device, the Compass is a fun way of reflecting on our positions and where we sit in the relational field of opinion, when everyone is asked the same questions. To save you the tedium of my First Principles chapter, in the interests of disclosure, here is where the Political Compass places me on the political grid. Thereafter, I've also appended where the Compass folk placed the UK parties in the  late 2010 Westminster General Election.

Mora, acquiescence and taciturnity...

As a blogger who aspires to revivify the connections between Scots law and Scottish politics, it has been culpably remiss of me to have failed to mention one of the politico-legal stories of the week. As most of you will have heard in media outline, Amnesty International commissioned a legal opinion from QC Aidan O'Neill (who is becoming something of a regular character in these parts), on the lawfulness of an ongoing Taser pilot in Strathclyde. This six-month experiment, authorised by the Chief constable of Strathclyde Police, provided for tasers to be issued to non-firearms officers after a short period of training.  The pilot proposes to 'test' the efficacy of this arrangement, cognisant of the future possibility that tasers become a standard piece of equipment of all officers in the force. Concerns have been expressed on many bases about the pilot-trial, resulting in a Liberal Democrat debate on the question in Holyrood on the 25th of February this year.  I also neglected this debate at the time - happily I've now got a chance to amend my previous dereliction. As you will know by now, Aidan O'Neill submits in his opinion that the Strathclyde taser pilot is unlawful. The question got a couple of mentions (and a couple of Eckly rebuffs) at First Minister's Questions today. For today, my mora, acquiescence and taciturnity will have to continue. Tomorrow, however, I'll be publishing a more substantial piece, trying to untangle the ugly yarnball of politics and law at issue here, which Amnesty International and the Scottish Government have been busily knotting and intertwining into the present almost impenetrable guddle.