30 December 2009

A good death in Scotland (2)

In this, my final blog post of the old year, I wanted to return to an issue that will be profoundly pertinent in the new one. Thus far, the Scots blogosphere has been notably quiet about Margo MacDonald’s private members bill to legalise physician assisted dying. I’ve made a view sallies, attempting to lance media misinformation and anticipating some of the conceptual troubles which might waylay MacDonald’s reforming efforts. No doubt interest will heighten when the story marches more resolutely towards the top of the public agenda, and various interest groups, outraged opponents and vocal supporters get torn into one another. In anticipation of that melee, today I wanted to cover a couple of aspects. Firstly, what do we know about the Scottish public’s attitude to legalising assisted dying along the lines Margo proposes? On the basis of this thumb through the available polling data, I want to draw out a lesson or two about how defining the ambit of the debate may be critical, if Margo is to prevail. This will be no mean feat, considering how awkwardly incompatible viewpoints, beliefs and arguments about assisted suicide or dying abut.

In the clammy, neurotic minds of professional politicians, presented with the perpetual threat of being given their jotters by shadowy elections looming, public opinion can never be far from their thoughts. What do we know about public attitudes to assisted dying? Firstly, take the Populus poll, commissioned by the Times on the 19th of July, asked 1,504 people for their views on a number of social issues. Among them, whether doctor-assisted suicide should be legalised. Infuriatingly, moronically, the pollsters asked the 66 Scots interviewed the following, inaccurate question:

“Currently it is illegal in the UK to assist a person in committing suicide. There have been a number of reported cases of people travelling to a Swiss clinic where they can legally be given drugs that will cause their painless death. Most, but not all, of those taking this course of action have been suffering from terminal illness.

Do you think that, in cases where an individual is of sound mind and has made unambiguously clear that they want to die and want or need help to do so, the law in the UK should or should not be changed to legalise doctor-assisted suicide, similar to what is practised in Switzerland, so that a doctor could assist someone to commit suicide without facing prosecution?”

Regular readers will be familiar with how vexed I get by these misrepresentations. Assisting suicide is categorically not illegal ‘in the UK’. I vent more fulsomely on the theme here. However, these quibbles aside, of more decisively interest politically are the Scots voter’s answers (despite the relatively thin sample) to the affirmative proposal . 39/66 said that they thought that “the law should be changed” – 70% of the total sample. 15 said the opposite, or 28% of the total. One soul admitted that they didn’t know how they felt. Matters get more murky when non-doctors are introduced into the question above. Asked whether friend, partner, family members or spouses who assist suicide should be able to do the same and avoid imaginary prosecutions, public confidence is lower. Of the 66 hailing from Scotland, only 49% answered ‘yes’ – contrasting very sharply with some of the other regions – Wales and the North of England, for example, answered ‘yes’ to the tune of 67%. 46% of the Scottish sample opposed the idea, with 3 folk, or 5% undecided.

Matters get even more foggy when the poll disintegrates into a series of unclear and conceptually imprecise questions about voters’ attitudes to particular conditionals. Should it be permitted if an individual is terminally ill, chronically, in extreme pain, if the individual ‘has severe physical disabilities – even if otherwise healthy’? Shifts and variations mark responses. Lack of conceptual clarity is everywhere in evidence. An obvious objection is that sixty six people is not a robust, statistically significant spread of views. From the perspective of cautious MSPs, too few perhaps to sooth their easily startled hind-consciousnesses, apt to be frightened off. More confidence might attach to the results of the only other recent study of the people’s views. Conducted by Cello MRUK, the pollsters asked 1000 people in Scotland whether the law should be changed to allow doctors to help people with chronic illness who want to die to end their lives”.

Unfortunately, the poll and its detail does not seem to be available online, so here I’m relying on the figures cited in the Times commentary. 68% of respondents said yes, only 8% said no while a whopping 24% said they did not know. Another interesting detail from the Times piece concerned different respondent age groups. “Support for a change in the law was highest among people aged 35-44, 78% of whom backed MacDonald’s proposals. Among those aged 45-54, 55-64 and 65 and over, support for the bill stood at 77%, 73% and 63% respectively. An equal proportion of men and women supported a change in the law.”

1,000 folk is clearly a more respectable roll of opinion. Assuming Margo’s proposal can survive parliamentary procedures, we can probably expect one or more of the papers to invest in another, hopefully more expansive and more unrestrictedly reported round of canvassing of public attitudes. If I had the cash, I’d lay out myself – but alas – the year’s profits from my peat worrying enterprises isn’t sufficient. Our curiosity will just have to feed on what we already know. I’d suggest that in combination with the Times micro-poll, both polls demonstrate a couple of things. Firstly, that public opinion clearly favours legal changes for some people, under some circumstances, probably constrained, probably by a medical professional. Bambie tribunes can be reassured somewhat, that if they wrestle their consciences into supporting the measure – they can be emboldened by the support of much of the populace. However, politically, we just don’t know how much the voters care – namely, the cost of support or the tariff of opposing Margo’s proposals cannot be enumerated cleanly. In terms of detail, of seeking a careful and specific and precise legislative formulation, however – I’d speculate that the public common is in as many minds as it has heads.

Much of this can be put down to the amazingly complex, philosophically befuddled range of categories, arguments and accounts of assisted dying which we can give. I went into this question earlier this year, when I asked ‘is a real debate of physician assisted dying possible’? That commentary remains cogent. Although I understand the Maximum Eck’s natural conservatism has probably got the better of him, and he remains ‘unpersuaded’, I’m glad to hear that the SNP are to have a free vote along with the rest of the Parliament. Frankly, I’d have been astounded if it had been anything otherwise. Hopefully unpersuaded denotes persuadeable in Alex Salmond’s case. As I argue in the foregoing post, one of the main problems which Margo will face is framing the debate in a manner which results in her bill being passed. What arguments, what conceptual terms of reference will be most disposed to sway doubters? Alternatively, what justifications for will best deflect critiques certain to be levelled against the proposals?

Having read through Margo’s consultation exercise, her emphasis is clearly on the current absence of and pre-eminent need for clarity in law about these issues. Here are three quotes from that document:

“The proposal that persons who wish to decide when to end their lives should be able to do so, legally, with the assistance of a registered physician has come about because of the experiences of people with degenerative conditions, terminal illnesses and those who become entirely dependent on others following a trauma.” (Margo MacDonald 2008, 3)

Anticipating the sorts of debates which will hasten on the heels of her plans, MacDonald wisely concedes the obvious – that

“… in a pluralistic society such as Scotland, there will be differing beliefs and opinions on this question. It sits at the interface of private morality, public policy and the law. But there are ambiguities and a lack of clarity around the issue that, at the very least, indicate the need for examination of our current law and practices.” (MacDonald 2008, 3)

Given that admission, how to approach the problem? Assuming that she sticks with the same rhetorical tactic emphasising autonomy, the core of her argument is and will be that:

“A patient’s right to end of life choices is based on the principle of autonomy, that a person has the right to determine the quality of his or her own life and its value, unrestricted by the moral, cultural, religious, or personal beliefs of others.” (MacDonald 2008, 4)

The debate is thus being thrust into the medical domain, its actors are doctors and patients, their choices medical, emphasising the personal, the particular, interference in those choices by the state a sort of tyranny, prosecution of those who assist described in the same terms we would use to elucidate the oppressive persecution of a minority by the majority. Criminal laws pass every year in Holyrood, state agents are sanctioned to apply force to the corrigible citizenry – yet those votes are rarely free. MacDonald may well be optimistic about her parliamentary chances, since conducting a free vote precisely concedes her point – that the question is one of personal morality, conscience, not your usual law and order fare. If MSPs should vote on the measure, largely “unrestricted by the moral, cultural, religious or personal beliefs of others”, why then should those members of the public not do so also? If tribunes are to decide autonomously, what greater right have they to dictate than the ethical voices of the ordinary man or woman to reach and articulate their own conclusions?

It is this sort of reasoning which could usher the Assisted Dying (Scotland) Act into law. I for one would very much support it.

24 December 2009

Joyeux Noël!

As an ice-white Christmas Eve counts the snowflakes towards dawn, robins peck at lardy bird feeders and panicked shoppers maul for the last bird in the shop, I thought I’d take this opportunity to wish all of you a merry, port-soaked Christmas. It is curious to reflect that almost a year has gallivanted by since I made my first, tentative posts here in January. Hopefully I’ve managed to inform and entertain a fair few of you over the course of the last 12 months. Both imperatives will continue be my chief Muses come 2010. To get you in Festive fettle, I’ll leave you with the spooky Carol of the Bells, written by the Ukrainian composer, Mykola Leontovych.

23 December 2009

# If I only had a brain! #

The Scotsman revealed yesterday that an (improbably) cerebral parliamentary delegation is forming and that five MSPs are to donate their grey matter to science once they’ve snuffed it. The gags write themselves. Second-hand brain: only one careful owner, who only operated it at weekends. Or perhaps, if we’re feeling more spiteful, the ad should read Bargain: brand new brain. Never been used. Still in original packaging.

Wendy Alexander’s wrinkly stoater will be joined by the more or less entirely smooth upper storeys of Kenny Gibson, Helen Eadie and James Kelly, to be filed beneath the spent cognitive walnut of Marlyn Glen, once they’ve shuffled off this mortal coil. The tribunes’ brains, spinal cord and cerebrospinal fluid will be invested in the Parkinson’s Brain Bank, based at Imperial College London. The laudable goal of the research is better to understand Parkinson’s disease, to whit affected and unaffected brains are of scientific interest. That respectful caveat aside, I defy any soul with a pinch of humour to meditate on Gibson or Eadie or Kelly donating their brains to science without experiencing a wry smile. It’d be like the Maximum Eck foregoing his self-deprecation for Lent. Or Iain Gray hoping to make the most of his mellifluous tones and embarking on a lucrative voice-over career.

In seamless (or should that be lobeless) segue, fareweel Cathy! Jamieson has flung in her particular tartan towel to spend more time with her would-be Westminster constituency. What I find a bit difficult to understand is why Jamieson and old Margie Curran want to go to Westminster. Presumably both anticipate a Labour defeat and arriving in the Commons to the drifting, bruised irrelevance of a recently relegated party in opposition. Moreover, if they wish to improve the lot of their constituents, why try for a job that renders them basically powerless in addressing most of the basic cares of the populus? Why choose to be a domestic irrelevance, doubly irrelevant if your lot are out of office?

From the Holyrood perspective, I’m struggling to mint the right metaphor. Its not quite rats fleeing a sinking ship. Scottish Labour’s craft floundering in 2007 - that ship is well sunk, and is collecting coral and limpets and seaweed. Alternatively, we might regard it as a shadow cabinet haemorrhaging, their stoppered lifeblood seeking and leaking towards better prospects elsewhere. If so, that's crackers. If being a backbencher in a defeated Labour party is that better prospect, things must really be grim in John Smith House. Hardly an indicator of much health in the good ship Gray, however spicy his shanties. However, there is also a more positive account of Labour tribune wastage. A while back, I argued that one of Labour’s main problems is the perception that their MSPs are a slumping, gormless, glottally-stopped cadre of intellectual pygmies. There are exceptions, certainly, and diddies of every political stripe. However, Scottish Labour also faces the problem of entrenchment – changes of personnel are difficult to realise, due to Labour’s reliance on constituency parliamentarians. A couple of members of the group slinking out of Holyrood represents an interesting possibility for change, a beneficial ‘position vacant’ sign.

That said, in terms of a cull, I’m not sure if I’d hope to begin with my inner circle…

22 December 2009

Leaders' debates and devolution

I’m not daft enough to think that most Scots’ bedtime reading is the Scotland Act, or in particular, that most people have internalised and understood which powers were reserved to Westminster and which devolved to Holyrood in 1998. Schedule five of the Act contains a long roll of beasties, from treason to transport, defence and competition, weights and measures to measures outlawing possession of particular controlled substances. While a soporific reel of abstruse policy considerations by most people’s standards, its crucial that we understand competencies. Misunderstanding is the handmaiden of political paralysis, dame reaction’s favourite flavour of ignorance. If we are to take responsibility for our public choices, we have to have a clear-eyed sense of what is in and what is out.

While the reporting press is gradually getting to grips with the complexities in this area, misleading asides continue. Politicians – particularly those in by-elections – are regular sneaks on this point, talking about “this country”, “our health service”. References to the law of the land are generally misleading unless we clarify which land we are talking about. If Wales acquires general law-making powers within a particular territory – yet another level of complexity will assail simple-minded newswriters, looking for a brisk, punchy account of the day’s stories. This isn’t simply a chippy Scots lawyer’s quibble, for the reasons I’ve mentioned. If we’re to live up to our law, our public regulation and life, we must know what it is. Or at least, powerful mediators of our public knowledge ought not to mislead us by bland troping and lazy reporting. As others more consistently argue than myself, given my Scots biases, the main victims of this sort of thinking and this sort of slouching misinformation are the English public themselves.

Its in this context that I see the ballyhoo concerning the anticipated (and probably excruciating) debates between Broon, Cameroon and Clegg, come the new year. Defence, big macro-economic exchanges, spending cuts. Quite rightly, on top of these, I fully expect all three will have many of the English cares of government in view. In the loafy, clichéd phrase - voters' "bread and butter issues". Discussion will be a series of policy square-goes concerning schools, hospitals, universities et al. Institutions, all, south of the Tweed. In that context, the Maximum Eck would cut a curious figure, his commentary no doubt a bit befuddling to viewers tuning in from Ashby de la Zouch or Penzance. Yet, surely, that argument can be inverted quite as cogently. Interested in David Cameron’s grand wheezes for restructuring the English NHS? Maybe. But as an average Scottish voter, without that handy pocket-size copy of the Scotland Act to hand, am I not likely to be profoundly mislead by his remarks and the clout any future Tory ministers might have up North? What about Broon talking about mandatory knife sentences ‘in this country’? Might the technical questions of jurisdiction escape me in a way that fosters delusions about the respective powers of Holyrood and Westminster?

I don’t think understanding these things is beyond the ordinary person – but that understanding is only possible if we undertake not to patronise the public, not to feed them simplified falsehoods on the basis that ‘its too complicated’. Although people can be numpties – on this front, we make people stupid and keep them stupid by stewing them in fictions.

I realise that there is a difference between law and politics. I don’t believe that silence is mandated simply because Westminster reserves a particular policy, or vice versa. However, honest disagreement surely requires honesty about who has a say over what, what powers the would-be government can wield and which choices they aren’t in a position directly to influence. What concerns me is that the debates, as presently constituted, will gallop, chariot and horses, over these important distinctions. The resounding phrases – this country, our law – will roll basso profundo off debater’s scripts. And that culture of competence - across Britain, in England, Scotland, Wales and Northern Ireland - will never bloom.

21 December 2009

"The spiritual hunger of Sunny! and Sheer"...

I spotted this article in the Oban Times last week, but unfortunately I've discovered that it isn't available online. It struck me as an interesting example of Scotland's capacity to attract international interest and outward investment. I trust that the goodly scribes at the Times will thus forgive me for replicating their piece in its entirety.
The Spiritual Hunger of Sunny! and Sheer

A prominent American Faith Group that promises weight loss in exchange for adopting the sinless lifestyle of its church members has extended its operations into Oban.

The Church of the Fatter Made Saints
draws its authority directly from John 8:7 where Jesus was reported to observe “let he who has not sinned cast the first stone.” Managing Director of the American Church, Pastor Wardrobe Phelps, 120kg, said “There is clear Biblical evidence for the existence of a sin to fatness ratio. God’s punishments upon the wicked are manifold. Sins of the flesh are punished by flesh. Scripture is quite clear on this. So long as America continues to spit in the face of Jehovah, as Ezekiel 34:03 makes clear, it will remain a fountain of lard till the Day of Judgment. Its in this spirit of ecumenical trimming that we’ve opened up our first Scotch branch.” It is understood that the Church have rented premises on Oban's attractive waterfront and intend to embark on mining Scotland's world-leading seam of obesity in the new year.

Several members of the church have already reported significant weight-loss. However, some experts have disputed the permanency of the holy mass reductive methods. Professor Moan Chompy, of Edinburgh's Polytoyn-B Research Institute, commented “Although I’m not a doctor, I think it is reasonably clear that any ostensible weight loss is simply fat displacement. If you peel back the skull, I bet you it’ll reveal a significant increase in fatty deposits around the brain. That’s my best guess anyway.” Amongst the Church’s dogma, the most hotly disputed concerns the effectiveness of sinlessness in European dieting. Pastor Phelps argues that “The Bible is sparklingly clear on this point. Its “stone” not kilogram, or whatever you heretics use. Jesus sanctioned Imperial Measure only. No weight-loss-benefit will arise from sinlessness which tugs the teat of the Madonna by using such unhallowed measuring techniques.”

However, a breakaway Chapter of the Church have denounced the Pastor’s remarks as too “Sheer”. The dissident “Sunnys!” argue that the “Sheerites”, still loyal to Phelps, are themselves mistaken, and that “kilogram” is in fact closer to the divinely sponsored Greek in which John composed the director’s cut of “the Bible”. Their leader in Britain, Father Medulla Oblongata-Sowed, is billed to address the Conservative Party Conference later this year and has already praised Lord Tebbit, 3kgs, for “finally drawing public attention to the proved causal link between habitual sodomy and childhood obesity.”

18 December 2009

Scots Salduz appeal judgement...

Regular readers interested in my sometime Scots legal commentary might recall me mentioning the case of Duncan McLean v. HM Advocate late in October. The case had (and still has) the potential for very significant political fallout. Its central issue, broadly stated, is the extent of rights afforded by the European Convention on Human Rights, in the light of the case of Salduz v. Turkey. In particular, concerning when legal representation might become mandatory during police questioning of a suspect. You can find some explanatory references about the implications of the case in earlier posts. In the spirit of festive completeness, I thought I should draw your attention to the fact that the court handed down its final, written judgement on the 15th of December. The Lord President’s full prose opinion is available here.

Despite this, the furore-in-waiting may not entirely have been dispelled. Although generally speaking, there is no criminal appeal from Scotland to the House of Lords (as was) or the UK Supreme Court (as is), because human rights are involved, there is a devolutionary twist that lends the Supreme Court jurisdiction. The Scotland Act 1998 provides in section 57(2) that “A member of the Scottish Executive has no power ... to do any ... act, so far as the ... act is incompatible with any of the Convention rights. ...” The Lord Advocate, who indicts accused persons, is a member of the Executive. She is thus constrained to act in accordance with the Convention. If she doesn’t, she is going beyond her powers (for the Latin-lovers amongst you, ultra vires) and acting unlawfully. The new Supreme Court thus has jurisdiction, on the basis of the Scotland Act, to get involved in the controversy and potentially reverse the decision of the Scottish court. It remains to be seen whether they will hear the case or not.

Nevertheless, at least for a moment, I imagine that the Cabinet Secretary for Justice and his senior civil servants are breathing a sigh of relief.

17 December 2009

"Address to the Unco Press"

After a soothing period slumped beneath the spangly Sitka spruce, I’ve now blearily attained consciousness anew. Squinting at the text before me in a crisp copy of the Herald this morning, primly remonstrating with the Scots blogosphere, I was timely reminded of this poem, recovered from beneath the floorboards of Robert Burns’ Alloway cottage, during its restoration. Attributed to the man himself, the piece nevertheless has a distinctly modern resonance – it is perhaps an early draft of his more famous work, Address to the Unco Guid, addressed to the conceited newspaper proprietors of his own time. I include the text here for your historical curiosity.

Address to the Unco Press,
Or the Rigidly Writeous

My son, these maxims make a rule,
An' lump them ay thegither:
The Rigid Pressman is a fool,
The Rigid Wise anither;
The cleanest prose that e'er was scratch’d
May hae some pyles o' lies in;
So ne'er a fellow-creature slight
For random fits o' daffin.
Solomon. (Ecclesiastes vii. 16)

O ye wha are sae frank yoursel’,
Sae candid and sae wholly,
Ye’ve nought to do but scribe and spell
Your neibour’s fauts and folly!
Whase prose is like a well-gaun trill,
Supplied wi’ store o’ chatter;
The weil-read blogger’s scribing still,
An’ still ye scorn our matter!

Hear me, ye venerable corps,
As counsel for poor scribblers,
That frequent pass douce Truthiness’ door
Meeting glaikit Folly’s quibblers:
I for their thoughtless, careless sakes
Would here propone defences -
Their donsie tricks, their black mistakes,
Their failings and mischances.

Ye see your state wi’ theirs compared,
And shudder at the niffer;
But cast a moment's fair regard,
What makes the mighty differ?
Discount what scant employment gave;
That purity ye pride in;
And (what's aft mair than a' the lave)
Your better art o’ hidin.

Think o
yoursel’, when partisan,
An’ impulse tends tae dollop,
Ye notch scripts o’ a party man,
Your biases run tae gallop!
Hot airs an’ a’ airy fair bring
Only fair furth words, impartial?
But from your fingers such tales spring,
Ye seem so unco

See Politiks and Glee sit down
All joyous and unthinking,
Till, quite transmugrify’d, they’re grown
Loquacious and indicting:
O, would they stay to calculate,
Th’ fear that pricks insiders’ senses?
Or - your more dreaded hell to state -
All do wi’out expenses!

Ye high, exalted, virtuous hacks,
Pulling haughty faces,
Before ye gie poor Bloggers names,
Suppose a change o’ cases:
We don nae judgin’ robes, Mug,
Nor treach’rous sneak our inclinations -
But, let me whisper i’ your lug,
Ye’re aiblins nae temptation!

Then gently scan your brother’s blog,
Or blogging sister woman;
Tho’ they may gang a kennin wrang,
To step aside is human:
One point must still be greatly dark,
Whose falsehoods deeper blacken?
To smudge a fact fae ten's remark
Or tae mislead the nation?

Who made the heart, ‘tis He alone
Decidedly can try us:
He knows each clause, its various tone,
Each phrase, its various bias:
Then at the balance let us moot,
And wi egality adjust
In friendship, lets both make pursuit
And puncture press Snobbery’s disgust.

12 December 2009

Irish (un)parliamentary language

My festive duties have been heavy this week. Stewing away in fragrant wine mulled vats, building and then demolishing towers of mince pies, dressing up like a Christmas tree. These are just a few of the cheerful chores besetting the grandiloquent at this time of year. To keep you amused while I continue to deck the halls with boughs of this and that and knot a wreath above my door – I simply have to link to this hilarious outburst by Paul Gogarty, the Irish Green Party parliamentarian during a recent budget debate in the Dáil Éireann. Quite how a similar choice of vocabulary would go down in wur ain Holyrood, never mind the taut-sphinctered confines of Westminster, is difficult to imagine. Still, brevity is the soul of wit, eh?

8 December 2009

Christmas fruitcakes...

Three Wise Men. A festive tale by Lallands Peat Worrier.

David McLetchie must have been soaking his raisins in brandy all night. Mike Rumbles was larding his tin. (All euphemisms strictly intended.) Between them, they were sure concoct a spicy batter – pounding their walnuts and grinding nutmeg – and to get a wry rise out of the Maximum Eck’s Christmas card, right.

Thatched in holly, frogged with mistletoe, McLetchie whisks his pat of lard into the mix, “Alex Salmond is trying to politicise Christmas, having already attempted to politicise the Saltire, Scotland's national days and our children's education. His obsession with independence is blinding him to reality." Giving his beating biceps a rest, the citric Tory scattered in a flourish of peel. "He should get on with what he was elected to do, which is improving our schools and hospitals, and ditch these separatist stunts. For the overwhelming majority of Scots Alex Salmond's so-called 'journey to independence' is a road to nowhere.”

Creaming the First Minister to a peaky consistency, McLetchie then steered the bowl across to a festively-jumpered Mike Rumbles, bosom festooned with shepherds, three wise men marching wearily up his haunches, his frosty pow crowned with a gleaming star. Grubbing a thumb into the blend, Rumbles thought that it would be improved by a splash of his own favoured tipple:

“I'm sure people would be more impressed if the First Minister had thought about the message of Christmas rather than spent time picking out the most nationalistic Christmas card he could find. Everybody knows that the SNP are only interested in independence – the First Minister doesn't need to stick it on his Christmas cards too.”

A whiff of this was enough to coax a first-footing Foulkes into their kitchen, bearing gifts. An avuncular gleam in either eye, the Screaming Lord quickly realised that the batter was too sour – McLetchie oversqueezed the lemon – and with a sign of benediction, uncorked his bottle and sluiced sweet sugary vintage Foulkes into the blend:

“His card isn't entirely to my taste, but I would like to congratulate him for resisting the urge to put himself on it. He has shown commendable self-discipline.”

With a hoot of laughter, our three bakers shoved their cake into the oven’s rosy-red belly, and toasting a festive toast to the Maximum Eck over the Water, remark how the nights are fair drawing in. "Toss another saltire on the fire Lord George", McLetchie purrs from his mock reindeer-leather armchair.

“I’m perishing here”.


And very Holyrood Christmas controversy to you all! Naughty sprites, our protagonists are, wicked old elves chortling at their pocket mischiefs. Certainly, one can fairly find the Maximum Eck’s limited semiotic range rather tedious – but as an advent-brightener in dark days, the sheer giggling silliness of this is the distilled spirit of yuletide.

P.S. This blog cannot accept any responsibility for queasiness pursuing any innuendo-soaked reading of the foregoing chaste, comradely and simple tale of three fine fellows baking.

7 December 2009

Minority government in poetry & prose...

Minimum alcohol pricing, installing legal presumptions against short term prison sentences, replacing property taxation with local taxation based on income. Not perhaps the stuff which turns society on its head. Within the structure of devolution, within the Hegelian constraints of the Scotland Act, however, these are substantive changes. Yet most, if not all, of these policies will founder and fail for want of parliamentary support. A failure of governmental advocacy? Parliamentary intransigence and petty politicking? Principled objections simply pursued?

Part of the whole justification for proportional representation is that it prevents the inflated majorities boasted by Westminster and the unilateral and unerring imposition of the minority’s preferences which duly follow. Civil society and pre-existing institutional and organisational arrangements in our diffuse state weigh heavily on the possibilities for change. The force of inertia can be profound and determining. Radical shifts may be easy to narrate, but difficult briskly – or even slowly – to bring into effect across complex bureaucracies of the welfare state. This difficulty constrains those with thumping parliamentary majorities. What does it do to minority administrations whose capacity to bring about legislative changes is limited? Our answer to this question will depend very much on how keen we are on naval metaphors, and the idea of flagship policies. From one perspective, focus on particular measures is a way for the press to be lazy, for the ascendancy of the political gossip society and neglecting the dry, technocratic achievements that are the simple stuff of managerial government. Speeding up the rates at which government deliberates upon and reaches planning decisions, changing our legal definitions better to align them to our contemporary understanding of the world and what work our courts should undertake, etcetera, etcetera.

One of the appeals of an SNP government in 2007 – or not a Labour government, at any rate – was its language of insurgency, an eruption of the periphery against the stolid centre, promising alternative approaches. Something, dare I say, even revolutionary in tone. Part of the reason why incarnation following poetic possibilities of this sort invariably disappoints the public is the technocratic considerations animating government policy - and the ennui that consumes most citizens and their media newsgrubbers when a detailed survey of the activities of the servitor state is attempted. The familiar epigram capturing this divergence is that you campaign in poetry, but govern in prose. The patron saint of this discrepancy in our own time will inevitably by Barack Obama whose salutary fate as a saintly victim will be to disappoint the whole world. While the Maximum Eck may not be carrying the same weight on his shoulders, the SNP government is I think caught in the same trough, between poetry and prose. Understandably perhaps, a new government, uncertain (however stylishly uncertain) on their feet will attempt to reach accommodations with and incorporation of existing structures of power in civil society. While it is by no means fair to regard all of those structures as inherently reactionary, people who have much invested in their own way of doing things and their good conscience about their work can be tricky to convince about the virtues of radical change – and the chastening critique of their current activities implicitly alleged.

In that context, turn your mind back to a parliament of minorities, where the opposition have little to do but bash the government. Typically, any weapon will do. Thus, one month you’ll accuse ministers of cosying up to business figures in a blameworthy way. The next you’ll seize on a critical quote from those same entrepreneurial moneygrubbers to criticise government for failing business. Although this might look contradictory, its familiar oppositional stuff. Trading quotes from civil society organisations has become a staple of our parliamentary debates. “I’ll see your CBI and raise you a Royal College of Physicians”. Not that this is inherently objectionable. Rather my point is that, in a parliament divided into multiple minorities, its always possible to cluster around a civil government dissenter. Tentatively, I’d suggest that it is more likely in a parliament without majorities that at least one or more of the parties in opposition will heed a particular lobbying section and dissent.

Indeed, people who seem to be intimately involved in a particular area of policy will disagree with some new expedient designed to address a particular problem or inefficiency in our system. The reasoning runs, who to know better about these things than the people involved? Up to a point, maybe. Yet these lobbiers with grand titles and learned membership certainly have their own agendas. Bored oppositions represent tantalising, low hanging prospects for these organisations. Sometimes, this is just as it should be. Outré government impositions are not what are wanted. Equally, however, if radical changes are needed, what logic is there in sitting in the familiar, clapped-out ‘stakeholder’ room, leaving the balance of decisions as they are? Surely only a delusional soul would imagine that same-old, same-old can realise changes when, given a long roll of opportunities in the past, have singularly failed to do so. Out with the old, in with the old isn’t a poetic mantra to beguile the electorate. Its also not a plausible account of how reverses in public policy and victory in determining debates is likely to be achieved.

If all parties agree on a particular end – grand. Consensus, jolly beast she is, waddles by unremarked. Yet, if the parliament is minded to be divided, in these circumstances, intransigent members of civil society represent a real problem. Minorities’ use of those members’ views for political cover can become endemic. In the absence of parliamentary majorities, radical suggestions can find themselves fenced in, staked within the pre-existing constraints. The poetry that brought about our minority government finds itself snared precisely by this problem. This is no longer simply governing in prose – but governing using the same old lines, the tired vocabulary and strained metaphors.

6 December 2009

J McAlpine (2009) Anthropology of the Scottish Blogosphere

Self-awareness is an existential challenge in individuals, a duty in societies. In both cases, however, the insight is hard won, difficult to attain. Distractions of all colours play about fascinatingly and our glossing accounts of ourselves frequently refract true understanding. Oftimes, the thorniest insight of all is discovering that your common sense is not so common. Less entangled in the threads of meaning we ourselves have spun, an external viewer can be a healthsome antidote to this immersion. Equally, since Malinowski and other 20th century anthropologists set to work and strove to understand, that very externality can also be problematic. What presents itself as objectivity, instead risks the twin distortions of prejudice and generalisation. As a consequence, more textured accounts of reality - subject to diversity of experience, change and development - go unexplored. Understanding suffers.

I don’t know if the Times journalist Joan McAlpine consciously had such anthropological aims in view when she decided to undertake her bit of participant observation research on the Scottish blogosphere through Go Lassie Go. She could not have anticipated the degree to which the stereotyped phenomenon of the ranting cybernat spewing ‘egregious’ profanity - prim nation that we are – would skirl onto the pages of the press. One of the main sadnesses of the Wardog et seq. phenomenon is the hasty deletion of the whole history of commentary these authors produced. Under the threatening promise of writs, I can entirely understand that hasty retreat may be the rhythm indicated. Equally, however, it robs the public (or whatever clutch might be interested) of an opportunity to read the material and think for themselves. Particularly since the more lurid elements cited in the newspaper commentary string together unconnected material – in an unhistorical and intellectually dishonest way - that turns asides (even those too spicy for most mainstream characters) into concerted campaigns in a manner which any calm read through of the whole text couldn’t support. With deletion, that corrective expedient is now impossible.

Many souls in the coalition of disunited opinion that is the SNP outhouse in the blogosphere have been chewing their nails lest they be prodded with the same jobby-stick status as ‘cybernat’. Much of this is driven by a sense of being misunderstood and misrepresented by outriders in the press who burst into view, peer about – and gallop off again, bearing away their outrageous quotations, plucking a few preparatory bantams and heating the tar to a runny, adhesive consistency. On which threatening note, lets return to our participant observer. Drawing on her encounter with the labouring common soldiers of Scottish blogging, Joan McAlpine draws a far more flattering parallel in her Sunday Times column this morning entitled ‘Cybernats are the new pamphleteers’. Lets just hope that someone, somewhere isn’t erecting a new Bastille to accommodate us, shall we?

5 December 2009

Tittle-tattle and minority government...

To round up a week of important developments in Scottish criminal justice and instructive social research, just a couple more references for you. This week saw the Scottish Law Commission publish its pushmipullyu Report on Double Jeopardy, available here. It is a heavy document – much of it expressed in technical language and addressing lawyerly considerations which cannot but put your average, sensible citizen off. Generously, however, a summary of recommendations is available in part six of the document, shorn of reasoning, but pithier. At least, a smidgeon pithier.

Also of interest, in the category of narcissism and political science, is the Making Minority Government Work Report, published on the third, and produced by the Institute for Government and University College London’s Constitution Unit. Operating in contemplation of the House of Commons emerging from the next general election with no party constituting a majority of MPs, the report glances about in an attempt to anticipate how such a House might operate. In particular, would a cross-party coalition be formed? In the alternative, how might a minority Tory or Labour or Liberal Democrat government fare? If either option is sustainable – at least in the short to medium term – which is preferable? For Scots political obsessives, pages 54 to 66 will be of particular interest. Akash Paun’s contribution is entitled “Learning from Scotland’s Parliament of Minorities”. While noting various important differences, including proportional representation, fixed electoral cycles, it is assumed that:

“much else about the Scottish political system – including the fundamental relationships between executive and legislature, government and opposition, and ministers and civil servants – remains sufficiently similar to that of Westminster that cross-jurisdictional lesson-drawing can be a worthwhile exercise.” (2009, 55).

Is this a fair assumption? How do we discern between fundamental aspects of relationships, and those that are contingent? In particular, what about the ghostly, diffuse presence of political cultures inside these institutions? While certainly, I’d agree that counter-examples can refute political claims about unavoidable iron laws of causality – in particular that minority governments must collapse – I’m not convinced that it is helpful to reconstruct your own conceptual, deterministic vision either. In fairness, I don’t think that Paun is doing this in any radical way. However, an analytical focus on roles and forms and institutional norms can actually conceal the other, immaterial influences that cause things to be done in one way rather than another. The shaping forces which don’t make it into the official account of parliament’s operations - its tittle-tattle, the hidden transcripts of its operating culture – must be taken into account. Political philosophy is all very well – but our ideas are incarnated, and other, sneaky notions creep in alongside, far too often being treated as beneath the analytical dignity of scholars.

Its at this level, rather than the conceptual potentialities of political philosophy, that I'd suggest that many of the pressures on such a government can best be understood. Its the unscribed particularities and understandings in Westminster which we'll have to attend to, in assessing the survivability of any government of the minority.

2 December 2009

Scots jails stuffed...

I’m not a big numbers man myself. Quantitative researchers, bundles of statistics tucked under their arms, can be intimidating characters for those of us who prefer more nuanced accounts of social experience. The edges of their categories can seem too sharp, their sometime claims to predictive power rather dubious. Never let it be said, however, that quantifying aspects of social life is without its uses. Such data can challenge our demographic assumptions, recognising particular types of social change and disrupt claims about society made by people from comfortable but unempirical armchairs, based on a loose calculation of the speaker’s impressions and understandings of the world.

In this context, I read with interest the Scottish Government’s Statistical Bulletin in its Crime and Justice Series entitled Prison Statistics Scotland: 2008-09. The chart (left) is culled from its electronic pages and represents the average daily prison population in Scotland from 1900 to 2008/09. As you can see, the line wobbles significantly in its yearly progress – but the leap in population in the middle of the 1960s has been (substantially) retained in subsequent years. The past ten years reflect a similar, increasing population. According to the statisticians, the number of Her Majesty’s lodgers kipping nightly at her pleasure increased by 6% from the previous year – and by an appalling 31% over the past 10 years since 1999-00.

Percentages can be a bit bamboozling – or at least, give an inflationary impression of what’s what with the world. In brute numerical terms, in 1999-00 the average daily population numbered 5,975 – including those on remand, untried persons, persons convicted but awaiting sentence. For last year, that average number was 7,835 souls – or 1,860 more prisoners than just 10 years ago. Highlighting the degree to which incarceration (and criminality) is a gendered phenomenon, 7,422 of the 2008/09 figure were male, 413 female. Men constituted a wildly dominant 95% of the total average daily population last year. Those particularly concerned with the phenomenon of female imprisonment, however, will be particularly concerned that since 1999/00, the average number of women in prison has almost doubled, increasing from 210 to 413.

On this last point, I have my ambivalences. In particular, while women’s groups do have a concerned voice in the political process, as is proper, this sometimes causes those discussing imprisonment to ignore the gendered character of the jail. The men’s movement by comparison, can seem demented and atavistic to broadly pro-feminist men. I’d certainly include myself in that category. One consequence of this is that gender is not deployed consistently as an important basis to understand prison policy by our senators. One can have particular sympathy for the stories of particular women and for example, the travails and cruelties which pregnancy and birth in penal circumstances inflict. Rather than enforcing broader questions about gender understandings in prison, by framing the debate in terms of women in prison, our discussion becomes bifurcated. We have one discussion on women in prison – and then blithely squander the gendered insight by progressing to talk about prison in the genderless abstract, ignoring the maleness of the population and implicated issues of masculinity. Which seems to me a rather curious thing to do, given the ordering role gender clearly plays in the production of the population, as profiled.

We might take comfort in the fact that, if international comparison is attempted, Scotland ‘only’ imprison 150 per 100,000 of the population. This comparing to 760 per 100,000 in the US and 629 in the Russian Federation. England and Wales even pips us by 2, slamming cell doors behind 152 people per 100,000 heads. You can see the whole 2008 chart on the right (click the pic for a clearer view). While we ought to exercise severe caution when drawing these international comparisons, they do give a flavour of where contemporary Scotland is on the scale. I’d like to see us rather lower on that scale, myself. As I like to harp on about, however, devolution must be about taking responsibility for our own choices. We constitute Scotland this way, set her policies in motion, build, retain and pay for these prisons. Political tittle-tattle, grimy law and order positioning aside – these are the challenges of devolution. Like deciding for ourselves whether assisted dying is permissible. Like choosing which path should be taken on education, primary, secondary, further or higher.

That is our responsibility. Lets live up to it.

30 November 2009

Your Scotland, Your Voice: A National Conversation

Horrendously busy this morning, so just a helpful link for those of you champing at the bit to read the SNP Scottish Government's much-anticipated white paper entitled Your Scotland, Your Voice: A National Conversation, published this crisp St Andrew's Day morning. The document "sets out the options for constitutional reform in Scotland. It continues the debate started by the National Conversation."

You can read the full paper here. Analysis later.

28 November 2009

Big decision from Scots Court of Criminal Appeal

Another grim outing at the Court of Criminal Appeal in Edinburgh this week, of wider significance for those of us with in interest in criminal justice and the prison system. The central issue? The guideline punishment parts of Scottish life sentences imposed in murder cases. Arthur Hamilton, sitting in his militaire capacity as Lord Justice General, along with Lady Dorrian and Lords Reed, Clarke and Mackay of Drumadoon were formally hearing an appeal lodged by the Lord Advocate. Elish Angiolini appealed the minimum prison terms imposed on Brian Boyle, Greig Maddock and Robert Kelly under the Criminal Procedure (Scotland) Act 1995, on the grounds that the toll of years each was sentenced to was “unduly lenient”. All three were convicted of murder, Boyle and Maddock arising from the same, utterly appalling treatment meted out to Robert Bowie. The harrowing facts and circumstances of his death are set out in detail in the judgement, described by Hamilton as “redolent of the medieval horrors of execution by burning.” Kelly killed Agnes Mechen in 2002. All three saw their minimum tariffs in prison extended by the court.

However, Scotland’s chief public prosecutor also determined to make “use of the opportunity presented by these appeals to invite this court to give guidance under section 118(7) of the 1995 Act on punishment parts in murder cases.” Most of you will be very familiar with the formulation that a conviction for murder attracts a mandatory life sentence. You will also have heard radio announcers crying “x sentenced to 16 years in prison for the murder of y”. Life doesnae mean life. Well, not necessarily. Broadly how sentencing in this area now functions is that a punishment part of the sentenced is set by the judge, before which the convicted murderer cannot be paroled. Release is not, therefore, immediately promised by the punishment part of your sentence coming to an end. That becomes a matter of parole, handled by the relevant authorities.

The Lord Advocate was getting at this first bit of the sentencing. She asked the Court for general guidance on judges’ understandings of what a typical minimum or maximum sentence should be. Although I’ve no way of validating this claim empirically, the judgement suggests that an understanding of a 12 year ‘starting point’ for murder convictions had sprung up – reflected in scholarly literature – with extra years accumulating based on aggravating or mitigating features in the circumstances. After the case if Walker involving a corporal in the Royal Scots who shot and killed three other soldiers - retired David Cunningham, Terence Hosker, John Thomson – robbing them of the army payroll they were transporting. On appeal, Walker’s minimum sentence was reduced from 30 to 27 years.

Said Angiolini before the appeal:

“As lord advocate I consider that is inadequate to reflect the wide range of conduct which may amount to murder and fails to reflect adequately the exceptionally serious cases of murder, particularly those involving multiple victims, terrorism or persistent sexual violence against vulnerable adults or children.

"I am asking the court to consider issuing a guideline opinion which will recognise that 30 years is not the absolute maximum punishment part and recognises explicitly that in some exceptional cases a punishment part which exceeds the natural life expectancy may be appropriate."

Said the court this week:

“A punishment part as low as twelve years would not be appropriate unless there were strong mitigatory circumstances, and a punishment part of less than twelve years should not be set in the absence of exceptional circumstances - for example, where the offender is a child.”

The Lord Advocate apparently particularly emphasised knife crime in her submissions, which the court. The judges replied:

“We agree that at the present time knife crime is a scourge in the Scottish community and that the court should be acting, and be seen to be acting, in a way which discourages the carrying of sharp weapons, the use of which may lead to needless deaths.”

Although the court uses the rhetoric of deterrence, this seems to me a bit of a red herring. Speak to criminologists who make deterrence incentives their life’s work, who explore it empirically. The prospect of a distant, cold disposal of your murder case in this way is profoundly unlikely to seep into the public consciousness. That is not to say that we might not wish to impose steeper sentences on those who gouge and shank their victims. However, deterrence is unlikely to be part of the justification for it. Nevertheless, in circumstances where death results from, the court directs that:

“Sentences which may cause individuals to think more carefully before arming themselves and which reflect public concern at such killings are appropriate. Other than in exceptional circumstances we would expect punishment parts in cases of that kind to be at least sixteen years, and they might be significantly longer depending on the circumstances.”

Repudiating any suggestion that 30 years should be the maximum sentence for murderers, the court said:

“In our view there may well be cases (for example, mass murders by terrorist action) for which a punishment part of more than thirty years may, subject to any mitigatory considerations, be appropriate.”

Should this be welcomed? Certainly, anyone who reads what Boyle and Maddock did cannot be unmoved. The urge to punish is, understandably, very strong. Moreover, after being so apparently cavalier about their hideous brutality to one life - arguments from public safety become strongly relevant. Personally, I've a deep ambivalence about the whole imprisonment project. Why is 16 years an improvement on 12? What are the purposes of such incarceration? Is it easy to have confidence in the judicial calculation and its rationality? C'est difficile...