Nobody expects the shrieval inquisition!

Shrieval is a nice, curious word. For those amongst you who are not Robin Hood enthusiasts or close followers of Scotland’s busiest courts, it is the adjective associated with sheriffs. If, for example, you are a pulpsome, bitter tongued curmudgeon with a fondness for being physically chastised, and you make frequent visits to a professional woman to assist and facilitate this pastime, these sessions could, reasonably, be characterised as shrieval in nature. Amongst other things.

On which note, I hope those of you who lack my own lawful enthusiasms will forgive one final, brisk legalese reflection in what has been, I admit, a somewhat law heavy week on the blog.

As covered by the Herald today, with a flourish of self-justifying expertise merchantry from the Government here, my favourite bendy and quasi-eloquent Cabinet Secretary, Kenny MacAskill has ordained that Sheriff Principal Edward Farquharson Bowen QC should peek over his fellow sheriff’s shoulders, and conduct a review of the procedures surrounding solemn trials in the Sheriff Court. As some of you may be familiar with, Lord Bonomy – now a Judge of the United Nations International Criminal Tribunal for the former Yugoslavia – published his report into High Court of Justiciary practice in 2002. Symmetrically, the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 directly emerged from the report produced by the Summary Justice Reform Committee, chaired by Sheriff Principal John McInnes. It is logical, for completeness, that solemn sheriff trials are investigated in a similar way and where needed, reforms introduced.

As if by glad coincidence, I posted earlier on the number of jury trials in Scotland, wherein one can find the brute numbers of cases Bowen will be tasked to explore. Interestingly, one can detect an obvious trend in the years I cite, of increased rate of activity in the sheriff court, involving jurors.

While I doubt that, in his cycle around the country, the BBC’s John Knox will find many of our goodly courtyfolk who would list this sort of “technical” reform as one of the best things Holyrood has done. How much they influence the lives of ordinary folk who’ve only ever walked by a Sheriff Court, and never into one, is obviously limited. Other cares are more pressing. Nevertheless, Holyrood makes space – and perhaps even more importantly – time for dealing with these questions which have been, for so many years, neglected by the Westminster Parliament.

Although all of us may well wish to avoid finding ourselves pinioned in the grinding, half-oiled and rusted mechanisms of Scottish justice, having a care for the rights of others is crucial. It must be recalled, again and again, that public systems are creatures of public authorship. And as the old legal maxim runs, qui tacet consentire videtur. In loose translation, "silence gives consent."

In Scotland, with so much public power under Parliamentary and Governmental control – with so much of the fabric of Scottish social life and the levers of Scotland's state power subject to their jurisdiction – we, the tacit consentors, are becoming increasingly implicated in the mischief or mismanagement of these elected processes of deliberation and justice.

When you've got all the power you need radically to change processes and ideas which seem odious or desiccated, your inactivity becomes culpable. This idea, I hope, is something Holyrood and the Scottish people are coming to appreciate more clearly. To touch, briefly, on a prior post before rounding this one off - I would suggest willingness to consider Margo's proposals are an expression of this strength - with all of the quivering and discomfiture which real, difficult judgements are attended by. Slowly, but I think significantly, we're learning the possibilities - but also the modesty - which such authority brings.

A good death in Scotland...

Something almost interesting has happened, or at least threatens to happen. Almost without a peep from the Scots blogosphere – and largely submerged under the shifting plates of other stories – Margo MacDonald MSP actually got her bill to legalise assisted suicide in Scotland a parliamentary hearing. Internal parliamentary rules required the doughty tribuness to cajole eighteen of her fellows into lending their signatures to the proposal. Although eighteen out of one hundred and twenty nine is a small percentage, the following MSPs scribbled in support of her Bill proceeding to actual deliberation. I’ve divided them into their respective parties, for curiosity.

Robin Harper (Green), Patrick Harvie (Green), Elaine Murray (Lab), George Foulkes (Lab), James Kelly (Lab), John Park (Lab), Charlie Gordon (Lab), Bill Wilson (SNP), Sandra White (SNP), Christine Grahame (SNP), Christopher Harvie (SNP), Jamie Hepburn (SNP), Ian McKee (SNP), Bill Kidd (SNP), Angela Constance (SNP), Joe Fitzpatrick (SNP), Jackson Carlaw (Tory), Jim Hume (Lib), Jeremy Purvis (Lib), Liam McArthur (Lib).

One curious aspect of this problem which the Scots press consistently get seriously wrong is that assisted suicide, as such, is absolutely and without question, illegal under the present Scots law. The precept and sanction from which the criminality of assisted suicide draws its conceptual life in England and Wales is the Suicide Act 1961. As a cursory search will show you, that enactment does not apply to Scotland and hence, precisely what legal risks assistance runs north of the Tweed remains much murkier. Indeed, because the ambit of the debates are generally framed around this English usage, the question “is assisted suicide legal in Scotland” is almost an unanswerable question.

We can say that the old strictures on suicide itself have withered and snapped under the erosive eye of desuetude and obsolescence. However, I must stress – Parliament has never abolished this in Scotland. Theoretically, therefore, the louse could creep back out of the seam at some point in future.

Broadly, what one can say about the Scottish position is this. There is no legislation clearly dealing with the subject. There is no clear, primary precedent directing whether and in what graduations general assistance to commit suicide will be viewed criminally. By contrast, if the assisting person acts on their own agency in bringing about the death of a willing subject - whether but administering pills, smothering and so on - this is prosecutable as murder or culpable homicide. To avoid the exigencies of a mandatory life sentence, the latter course is frequently followed by prosecutors who seek a conviction and accused persons willing to enter pleas.

Regarding assistance not amounting to active administration, leading to death, the gloom darkens still. If suicide is not, of itself, a crime, one naturally cannot be found guilty of bringing it about “art and part” in the Scots phrase – by participating to some measure in its perpetration. One situation which has proved (relatively) common in England – families facilitating the departure of a loved one to another jurisdiction, there to die – is much more of a labour to interpret into Scottish criminality, to my mind. So too, I’d argue, cases where lethal doses of medicine are gathered and knowingly given to a person, for that individual to consume under the own volition and by means of their own physical steam.

As you can see, it is a frightful mess. The absolute abnegation of what the criminal laws ought to be in a modernised, rationalised democracy. Indeed, I’d suggest the whole set up, if applied against an individual, could prompt a fierce challenge under European Human Rights law and Article 6 of the Convention. The content and contours of the law – at least in respect of general assisting conduct not amounting to murder - is totally vague. Unacceptably so.

Its in this context which we have to see Margo MacDonald’s proposed piece of legislation. Questioned by Brian Taylor at the SNP Spring Conference, Alex Salmond, the Maximum Eck, outlined his views on the subject in an uncharacteristic tangle:

“I’m not convinced…the … I mean I think when you hear the views of people who have been in circumstances with relatives with painful and incurable conditions … and nobody with any sensitivity would want you know sanctions, severe sanctions, pursued against people in these circumstances. The difficulty I have, and lots of people have with this issue, is that if you provide a legal base for euthanasia effectively, for assisted suicide, then it is very difficult to assess where your boundary line is then drawn which protects on the one hand the sanctity of life and also protects, for that matter, medical practitioners and others. I think shifts in the boundary line here are very difficult, and thus I’m unpersuaded by Margo’s bill. I’m not unsympathetic, but unpersuaded.”

To my understanding, Margo must now wait to see if the Government brings forward an Executive Bill, addressing the same subject. I would argue that they should, for the following reasons. I can see Salmond’s points, lots of people can, whether or not they would suffer many vague allegations that life has some absolute “sanctity”. Moral caution is understandable. Real debate is mandatory. Various options are open to the Parliament. Before, I’ve lambasted our Holyrood lot for their conservative progressiveness. One can see, in the Maximum Eck’s remarks, curiously, a legislator with fear of his own strength, cowed by the sheer legislative possibilities which Holyrood presents and the significant extent to which it is empowered to overhaul old norms, and generate new and crackling concepts, fresh from the Gods.

A chance for a debate – a Scots debate – on this issue is terribly welcome, and I congratulate all those Margo was able to shoehorn into signing her proposal. Holyrood cannot shirk its responsibilities. Salmond is wrong. The law does provide for severe sanctions in some circumstances, as I have outlined. However, what concerns me is that Margo’s bill may provoke a binary response, and a useful and needful and timely moment for altering our conceptual patrimony may be wasted. We need not, after all, walk the whole way Margo is advocating. What I’d like to see is at least the following.

Firstly, a clear and forthright statement that suicide is not a crime in Scotland.

Secondly, a provision clarifying that general assistance to commit suicide is not illegal in Scotland. The form of the Suicide Act 1961 should not be followed.

Thirdly, a debate on the criminality of the intentional causing of the death of another for benevolent motives.

It is merely the desire for control which causes the problem here. Law is envisaged as a set of rules which can be applied. Politicians – yammering about boundary lines – express, I think, the anxiety which would attend broad rules permitting “euthanasia”. As they come back to, again and again, what about bad faith, what about underhand and malicious this that and the other, which might trick the section and slip through a vengeful legal noose on a technicality. I can see some of the appeals of this argument. Even if one admit its significance, however, that does not, absolutely does not, justify the status quo.

If we do not find even acts of intentional killing, in certain circumstances as sufficiently blameworthy necessarily to entail a life sentence – lets be up front about it. The defence of provocation, if sustained, reduces a charge of murder to one of culpable homicide, as a matter of right. By contrast, those who engage in euthanasia must put their hopes in the benevolence of the prosecutor, and pray that he or she does not simply choose – as is their right – to proceed with a charge of murder. That contingency and uncertainty does not seem satisfactory.

Thus, I’d propose that “euthanasia” be instituted as a special defence to a charge of murder in Scotland, with symmetrical effect as the defence of provocation.

Obviously, Margo wants much more than this, and many might agree with her. However, if her advocacy fails her – and her hopes are not realised – something must be done about Scotland’s parlous and incoherent treatment of assisted suicide and euthanasia. If the Government remains, in Eck’s terms, “unpersuaded” and the rest of the parliament proves “unpersuadeable”, I’d strongly argue that the Government must act to bring light to a dark place, with honesty instead of humbug.

Worrier Contra Grieve

I promised Subrosa a while ago to have a squint through Dominic Grieve QC’s treatment of the European Convention on Human Rights over at ConservativeHome. Broadly, Jack Straw’s Tory penumbra suggests that the Human Rights “Act hasn’t worked properly” and ventures to explain why. To my mind, there is far, far too much lightness of hand and deft, impressionistic fingerpainting in his piece. Although I appreciate many of the terms and concepts employed seem technical, Grieve slyly conflates all over the place. Arguments pop up, unannounced after unrelated premises. The only answer is a comprehensive fisk of the thing. What follows is a bit of a tome, but I hope of interest to at least one or two of you.

I was delighted to read Lord Hoffmann’s critique. It supports the reasoned criticisms that we have been making of both the Strasbourg Court and the HRA, and undermines Labour’s mantra that any criticism of either places one in some sphere of illiberal outer darkness. Ever since the Human Rights Act, the government has ducked all debate on any problems that have arisen with its operation, and refused to consider whether there could be better ways to protect our freedoms.

This I can agree with. The brainless acid chill and crystalline legitimacy which vague human rights enthusiasts are wont to suggest reposes in international institutions is mind numbing. One must always be able to think, to critique, and reflect. Indeed, his point about better ways is an interesting one, since it is assumed I think, quite often, that a human rights approach – and specifically a rights approach – is an unalloyed good.

“So what has gone wrong and how can we fix it? First Lord Hoffmann’s principal criticism is that the Strasbourg Court has not limited itself to the strict judicial discipline of interpreting and applying Convention rights. Armed with the self made doctrine of the “living instrument”, it has as Lord Hoffmann put it "…been unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on member states.”

A few clarifying points, for those who aren’t familiar with the ideas Grieve mentions. The doctrine of the “living instrument” is a half-borrowed trope from Canadian constitutional jurisprudence, who refer more pungently to the idea that texts are a “living tree”, and hence are subject to growth and alteration with time. The mental space is thoroughly thawed. In the Court, it signifies that in the interpretation of the ECHR, the Court is not bound by its own precedents – and that standards which one were not regarded as breaching a citizen’s human rights can now be regarded as doing so. Prominent examples include the case of Tyrer v. United Kingdom – the Manx birching case – and Selmouni v. France on the relationship between torture, inhuman and degrading treatment in Article 3.

Grieve is correct to suggest that this rule or concept of interpretation is not provided for in the Convention. It is thus, quite proper, depending on one’s judicial vision, to enter into dispute with the Court’s approach. I have heard, for example, Antonin Scalia, Associate Justice of the United States Supreme Court, wax hearty on this very theme of “Judicial activism”. While I’m not wholly out of sympathy with some of the ideas which provoke these response – frequently predicated on the sovereignty of the voter and their democratic representatives – its also a loony fiction to claim that change does not occur over time, or even a willful blindness, consciously maintained to preserve the justifying judicial air in a democratic climate.

I’m interested particularly, however, that Grieve associates the living instrument with uniform rules, towards which I find it difficult to tease out any evident relation. Indeed, to put the counterpoint, surely if human rights are universal, minimum standards, then imposing some order of uniform rules is precisely what the court is for. What is being objected to – I assume, since neither he or Hoffmann are able to furnish terribly many examples to flesh out their charismatically broad indictment – is the level of those minimum standards. Strasbourg’s sticky paws, in short. Moreover, from my own knowledge of the Court’s caselaw, absolute, flat rules are actually terribly uncommon. Very few judgements of the form “if x, then y”. Rather, the Court is awfully keen on a series of structured tests which are internally rather loose, and are apt to be determined by the facts and circumstances of the individual case. For example, under Article 6 one is entitled to determination of one’s rights by an independent and impartial tribunal. What does this mean? Is appointment by the Executive branch always alright? Quite sensibly, the Court says sometimes yes, sometimes no. I’d need far, far more examples of this general aggrandisement Hoffmann and Grieve allege before being convinced.

“Lord Hoffmann spelt out as an example how the Strasbourg Court has expanded the right to privacy and family life to second-guess UK regulation governing night flights at Heathrow. His point is that the courts have a duty to apply the law vigorously, but should be wary of law-making, which is the job of elected law-makers. The ECHR allows for the interpretation of Convention rights to differ between states under the “margin of appreciation”, but this is not being allowed to develop as intended.”

Ah, huzzah! A concrete example. Well, sort of. Privacy, yes, yes. A contentious article. Grieve argues the classic “interpreters not legislators” model of judicial life, vaguely implying that the article of the Convention on privacy – Article 8 – has some obvious meaning which the evil European judges flagrantly ignore. Have a read if it yourself, tell me if you think you know what applying this article means?

8(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The neat distinction he makes between making law and interpretation is patently not realistic here. Given his snort of derision about the “self-made doctrine of the living instrument”, one can but smirk about his lionising reference to the “margin of appreciation”. Scour the Convention and its protocols – you won’t find a crumb of it – the margin of appreciation being a bastardised article borrowed from French administrative law. References to “developing as intended” means to imply I think, legislative intent. If the drafters of the ECHR intended such a margin to exist, however, they epically failed to record it in the text.

It’s a complex idea, and quite what the margin is is subject to extensive academic dispute, which the court, being kindly to we poor scholars of law, has generously not resolved. Its broadly thought of as a bit of wriggle room in which a State may do as they think fit. I would argue that it cannot, however, amount to independent interpretation of what human rights are by States – since clearly, it is the court who says that a particular action is within the margin of appreciation or not. Namely, the margin is about what the universal standards are. Insofar as we believe or wish to uphold the universalistic conception of rights which is at the heart of the endeavour to vindicate the rights of all people, it is difficult to envision how one can escape from this analysis. Grieve continues:

“In my view, this process has been exacerbated by the HRA, which in practice has been interpreted here as requiring UK judges to match the Strasbourg case law in domestic law - although this is not required by the Convention, nor practised by many other countries. Take deportation. It is well known that the Strasbourg Court has made clear that member states cannot deport people back to a place where they risk being tortured. But under UK law the HRA has also been interpreted to block deportation where it might also infringe on the right to family life. That goes further than either the Convention or the Strasbourg Court requires and risks fettering our ability to deport some criminals or those who pose a risk to security.”

Isn’t this a muddle? It has been interpreted as requiring the judges to match Strasbourg caselaw, which Grieve thinks is bad, and this somehow entails that the English judges do more than match it? I don’t follow, and I certainly don’t see what “taking account of the Strasbourg jurisprudence” can be blamed for English courts engaging in more expansive interpretation. It’s a non sequitur.

“The HRA also imposes a duty on our courts to interpret legislation to make it HRA compatible, effectively a licence to re-write laws which reflected the will of Parliament.”

I’d remind my learned friend that the will of Parliament was to enact the Human Rights Act in 1998 and insofar as other legislation is affected, to amend those Acts in that way. Parliament’s doing, not the courts. One can’t be too picky about when the real will of Parliament counts as being expressed.

“Such a document has real usefulness in defining core values and freedoms. I am slightly mystified as to why those who argue that we should rely solely on the Common Law, Magna Carta, Habeas Corpus and the Bill Of Rights of 1689, have not appreciated the fact that these statutes were enacted precisely because the Common law did not provide sufficient protection against State power.”

Sensible point, Mr Grieve.

“The Conservative approach, which David Cameron set out in his speech in June 2006, is to replace the HRA with our own home-grown Bill of Rights. A Bill of Rights would be compatible with the ECHR. In areas where ECHR rights are absolute, such as the Article 3 prohibition of torture, those protections will not be removed. But there is no reason why our courts should be bound by Strasbourg Court jurisprudence, if their own interpretation is different, particularly where rights should be balanced by responsibilities.”

Look up a section or two, wasn’t Grieve complaining about this home-grow judicial interpretation only a couple of wheezes ago? Why so keen on it now? He’s right, of course a Bill of Rights would be compatible with the ECHR. Indeed, I warmly anticipate, given the narrow imaginative frontiers which constrain this sort of thing – the Tories will find it very hard not, basically, to reproduce the rights contained in the document, string for string. After all, given the acceptable generality, for most folk, of the Convention’s terms, what exactly would this Bill of Rights do differently? Talk of balancing is a loudly quacking canard of unspeakable vacuity. The European Court loves balancing already. Everything pretends it relies on the objectively measuring metaphor of balance against countervailing interests. Why is an English balance better, per se? Given the vague examples given – protecting jury trial rights being one of the better ones – I find it difficult to see how substantively what Grieve promotes will improve anything. Rather, to my eye it looks like a soft, dogwhistle nationalism, which prefers local determination to international standards. Which is fine by me, and worthy of reflection, but one could be rather more up front about it. That said, locating these deliberations in Westminster, given its recent record on these matters, might not appear a terribly attractive prospect at present. However, back to the QC:

“By enacting a well-drafted Bill of Rights compatible with the rights in the text of the ECHR it will be far less likely that our domestic court’s interpretation of it will be faulted by the Strasbourg Court which has shown itself respectful of countries constitutional laws. It is a sensible way forward, which we will continue to work on in Opposition. If we do it with a vigorous but rational debate we can achieve an outcome that will be good for our country and the rule of law.”

The implicit reference here is Germany, which blow for blow, has been litigated into Strasbourg’s warm chairs far fewer times than the United Kingdom. The point we must emphasise, however, that while a complex and conscientious and elaborated system of domestic rights protection would probably give the Court pause, insofar as there are uniform rules entailed by the interpretation of the Convention, a Bill of Rights enacting UK would still have to suck them up. In short, one cannot simply cover up your lower standards of behaviour by giving it an extensive domestic title and erecting an architecture of confusing verbiage around it. In order to do that cleanly, repudiation of the Strasbourg institutions is necessary. Actually, if I am correct, and Grieve and Hoffmann have erred somewhat in talking about those “uniform rules”, his scheme has the chance to be more successful – since in the absence of rules, the facts and circumstances of individual cases might favour his Bill of Rights. If, however, the rules are uniform, it is a silly, fluffy but ultimately vacuous proposal, if its intent is to alter the standards of the UK’s international obligations under the Convention.

The crucial capstone in Grieve’s thesis is, I think, his analysis of the margin of appreciation. Any investigating scholar could advise him, however, that his approach to this self-made doctrine is at least debatable. Not least in that, as a self-made doctrine of the European Court of Human Rights, they wield interpretative primacy in determining what that margin is. Curiously, for a man advocating looser connections and relations with Strasbourg - in doing so Grieve must rely on an idea whose scope and style carry the distinctive authorship of the ECtHR.

I for one doubt whether the margin of appreciation ought to be theorised as anything other than the space given to states to do what they like within the boundaries of universal standards. That to my mind is the curious, crooked little canker in Grieve’s optimistic argument. Or one among many. For myself, there is too much legerdemain going on for it to prove wholly convincing – and too little explanation about the respects in which any Bill of Rights might differ substantively, and thus, answer the muddled complaints Grieve outlines.

Labour's vacuity floating to light...

Its trite stuff, but crucial to recognise that the press don’t simply represent political reality, but constitute it by means of their judgements of relevance, and the imagined characteristics and opinion they impute to the body politic in general.

The voters wont wear it, generally rests on the gurgling authority of a gut. Symmetrically, when polls emerge outlining – shorn of all reasoning – what those polled are not too abashed to confess to regarding their voting intentions – the colon-confidence of the commentating press must needs rest on crooked-backed hunches, or the pheromone sensitivities of ill-defined instinct, causing the collective randy noses of the fourth estate stoats to flare and sniff. Shapeless knowledge all.

Of course, scribbling on the hoof, resting on workmanlike ad hoc foundations of half verifiable knowledge is simply what we’ve got to live with. Awfully dull to say we cannot speculate. All I want to underline is that the tenor of the press’ speculation is itself subject to the whim, indeed the whimsy, which governs what attitude the press in general are entertaining towards particular clusters of politicals. Frequently, media claims that the government are having a bad week, is also to admit that they’ve been working to give them one. All in the service of this unseen and yet governing spirit: public interest, guided by her holier and ghostlier conscience: public opinion.

It seems to be the common consensus that the SNP “had a wobbly patch”. Or if we prefer technological metaphor, “losing steam” – braced for the grinding halt of “running out of steam” – or the more temporary, but spluttering peril of having “stalled”. Getting their persuasive wellies stuck in the political mud for shedding of a bill for Local Income Tax, losing Glenrothes, the first speight of ministerial executions, an argued dearth in the legislative agenda. In short, policy flagships sunk, and no quinquireme of Nineveh or dirty Scottish tugger to tow them out.

Moreover, simultaneously Labour gets a reasonably soft ride of it. As I blogged at the time, neither of the “quality” broadsheets deigned to cover the apparent consequences of Margaret Curran deciding to ditch her role as chief marshal of new ideas in Scottish Labour, and indeed covered up by omission the significance of her departure. To date, I’ve read nothing on how this unexpected excision of the ostensibly primary actor in Labour’s “intellectual” revival has effected the party. Indeed, the Labour Party during the aforementioned phase have been depicted as having come to terms with defeat, as becoming plausible again. Gone the Wendibles. Back to business. And a businesslike man for the task in Iain Gray.

Here’s what I think. Talk of honeymoons was boring the media. The Labour Party weren’t being so ostensibly incompetent and politically lost. Poor Wendy had returned to spend more time with her twins. And then trailing clouds of glory, the thought appears, it is we - the quatrième état - who must hold this government to account. Which is, of course, quite straightforward. One just adjusts one’s spectacles, squints through the luminous gloom towards public opinion, and scratch out by and large what one fancies.

Even in a context where Alf Young, still doing his labouring duty, cheerfully suggests “we’ll have an outgoing Nationalist administration” after the next election, and the Scotsman similarly lacks enthusiasm for the SNP, one must remember that the coverage, even through gritted teeth, was generally positive towards the SNP for a significant phase of time after the election and brutally negative towards Labour. There is nothing given about media hostility to the party. The decision to take a more negative turn has to be seen precisely for what it is: a choice. But why? Brainless inquisitions into “are we still in the honeymoon phase” underlines how useless the idea of a honeymoon is analytically. Its very liminality is its undoing. After honeymoon, one settles down into ordinary married life. If one cannot account for ongoing love in that context – or perhaps, more accurately in the political context, a sense of not having been too disappointed yet – you are stuffed.

The mid-term anxieties in the press over the foregoing few months, I’d argue, are a response to this and foreground the idea of the media as opposition, as sceptics and doubters doughtily pursuing those in power. The crucial point about this, however, is that this primary press role implicitly underlines the ineffectiveness of the primary opposition. Hostile Labour politicians, making faces and striking poses in articles aren’t leading the attack, but being dragged along in the foam of its wake, strictly bit-players. Bad news for the government is not necessarily good news for the opposition, especially when it produces a discourse in which that opposition are persistently presented as sapped of vitality, unelected enthusiasts leading the charge. That implicit fact was bound to float to the surface eventually. I suggest it is presently making its way towards the surface of the Scottish political consciousness.

There are probably a number of factors informing this. The Westminster government’s travails undoubtedly a major contributor, prodding those with anti-Labour sentiment to indulge in smaller, Machiavellian calculations in the Scottish scene. Consider the Herald’s coverage of the YouGov poll: "Pressure piles on Labour as the SNP power ahead in the polls”. Rather more prominent and pointed a take on the figures than it might have been, given the option of the “just another poll” analysis, with the mandatory shrug of epistemological modesty. Or this article by Alan Cochrane in the Telegraph from earlier this month suggesting that “Labour's lacklustre opposition makes the SNP's anniversary shine”.

Attention seems to be turning back – as well it might, given the relatively short period of time until the next Scottish general election – to Labour’s actual state. As I’ve argued before, it is all very well and proper to suggest that the Maximum Eck and cronies are making a hash of it, but in the round, one has to see allegations of SNP incompetence in the context of Labour’s plausibility to take over come 2011. Which returns our attention to their policies, their new ideas, the dreary, wobblebottomed character of their parliamentarians. Of the first two, one may struggle to find a speck. Of the latter, there remains an embarrassment of riches.

And of course, it reminds us of Margaret Curran, ex-chief organ grinder behind the scenes, who as far as I can tell, made no policy music at all before shuffling back into Glasgow East to press the flesh. Expect this theme to expand. Its all very well saying “no” to things convincingly, without accidentally sticking one’s thumb in one’s rectum, but if Labour is to prosper, she must produce a thing or two to say “yes” to to boot. And signs of this, there are none. Not a sausage.

A Mount Rushmore for Scotland?

With the long, strangling winding down of my term - with correlative essay commitments - I've been a touch distracted over the weekend. Nevertheless, I've a post or two brewing which are distinctly out of joint with the news cycle, and so won't hurt being left to condense for a few more hours.

To edify in the supervening gap, I thought I'd draw folks attention to the half-defunct, but to my mind, wonderfully mad scheme to blast and carve a vast Ossianic Warrior in the side of Ben Cruachan. The originator of this munro-maiming crusade is Sandy Stoddart, the splendid neo-classical sculptor whose fine rendering of Adam Smith has graced Edinburgh's Royal Mile since 2008 and whose (to my mind rather dafter) David Hume sits further up the Mile, tit-out, with a hardy masculinity of bearing and a Classical ripeness which I fear the goodly and portly Edinburgh philosopher did not himself possess.

I see that in a 2008 interview with the Scotsman, the interviewer writes:

"In the partitioned area set aside for maquetes, he sprays water on a tiny clay model of his "magnum opus", a "mammoth representation and celebration of the Ossianic phenomenon" earmarked for an amphitheatre site which will be hewn out of the ground at Ben Cruachan. With a finger and thumb, he twirls a tiny spike of clay to demonstrate the height of a man. "I've been trying for this for 15 years now, and we've got a bit of headway."

Naturally, when the idea was first mooted in the late 1990s, wooly-hatted, galloshes wearing nature lovers enjoyed a seismic spasm at the notion of knocking artistic lumps out of the side of a hill. Expect references to defacing the smooth and lovely face of Gaia. Or more lumpen equivalents. In fact, anticipate the very definition and fullest expression of lallands peat worrying.

Personally, I think it would be absolutely splendid. Ben Cruachan is just another ugly lump of rock anyway, hardly a loss.

I found this report in the no doubt much-thumbed - The Mountaineering Council of Scotland Newsletter no. 35 - February 1998 - which contains a little more information about the scheme as it was proposed ten years ago. As I noted, save for yon wee remark in 2008, I can't seem to find any further details about the progress which this splendid notion has made. Such a pity...

BEN CRUACHAN ROCK CARVING

The MCofS has called for an artist's plans to create a 1,000 foot long carving on the side of Ben Cruachan to be dropped. A first stab at a debate occurred on Channel 4 News on January 15^th, with Mike Dales and the artist participating.

This project is seen as a challenge to wild land. It's another example of man trying to control nature. That's not to say that it shouldn't be done in Scotland, but the mountains are not the right place. This is monumental art, and monumental art is a monument to the artist's ego. If this kind of carving is to take place it should be in a heavily developed area where it might actually enhance the landscape - perhaps in the central belt where it would be seen by far more people, and working conditions wouldn't be as extreme as those encountered on Ben Cruachan.

The artist is Alexander Stoddart from Paisley. In the TV interview Mr. Stoddart said: "If this project is about waging war in any way, then it wages a total war on the dumming down, perfunctory, temporal, polaroid world. After all, it is entirely normal for mankind to do this kind of thing. If you think of the great Buddha that's carved in the cliffs at Kaiping in China. 600AD I think. You think of the Crazy Horse project in America currently running. If you think of the great lines that were made on the plains of the Central Americas. All these things are natural for mankind to do."

Mr. Stoddart went on to say: "If you look at the great examples of 20^th century mountain carving, a work of absolute genius, high taste and sensibility, conceptually wonderful, then complex. That's Mount Rushmore. You would have thought that the most famous carving in the world would have the name of its maker on everyone lips as a household name. Can you tell me who the man was, who erected that carving? Of course not, it's a tendency in great monuments that they obliterate finally the name of their maker for ever."

Also interviewed on the Channel 4 News were local councillor Campbell Cameron and WWF Scotland Director Simon Pepper.

Campbell Cameron spoke in favour of the plan, saying: "I think it's a tremendously imaginative project that Sandy has come up with, and that imagination has been caught by both the people and the councillors in the area. It's early days yet, because we've got a lot of work to do to actually move things forward, and indeed to bring the remainder of the public with us, which we must do."

Simon Pepper said that: "Scotland has got a number of white elephants lying around, some of which had artistic intentions some time ago, and others had more economic development intentions, and all of them are rather embarrassing white elephants littering the landscape, failures, disastrous failures."

Sandy Stoddart has chosen Argyll for this project because it is reputedly at the centre of the legends of Ossian. The figure that he wants to carve is Oscar, son of Ossian. Inspired by other giant rock carvings such as Mount Rushmore in South Dakota, Mr. Stoddart has chosen a granite mountain. There the similarity with Mount Rushmore ends. Ben Cruachan is made up of 5 different types of granite, and geologists describe the mountain as heavily jointed. With no visible faces of sufficient size on Cruachan, soil and vegetation would need to be stripped away to expose the rock, and the harsh West Highland conditions would also wear any newly exposed rock very rapidly.

The planned development is expected to take 40 years to complete, and employ 20 people. Some simple arithmetic suggests that the wage bill, at today's prices, is likely to amount to around £10M. Mr. Stoddart gave no indication on Channel 4 as to how he intends to fund this project, although Rory MacLean, who made the report, ended the article by saying: "The next job for the monuments backers is to see how much it will cost, and that's only a tiny part of the mountain they'll really have to climb to realise this vision."

Perhaps the last word should go to the locals who have dubbed the proposed monument as 'Chilly Willy' as the private parts of Oscar are particularly large and the winters cold."

Trial by jury "an inalienable civil liberty"? Not in Scotland...

Interesting “exclusive” in the Herald today, discussing jury trials in Scotland in the context of the Chief Executive of the Scottish Criminal Cases Review Commission, Gerard Sinclair, suggesting that:

“a debate is required on the future validity of juries in certain cases, as trials become increasingly complex and background information is available on the internet at the touch of a button.”

And a fine lot of inaccurate – but culturally profoundly interesting - curmudgeonly ballyhoo the Herald editorial dredges up. It begins on a stirring note, summoning the reader to traditional authenticity:

“The right to be judged by ordinary citizens has long been regarded as an inalienable civil liberty and the cornerstone of Scotland’s criminal justice system…”

Unfortunately, this is … er … codswollop. Some folks would of course, and not without reason, advocate a much wider role for what lawyers unctuously refer to as “lay participation” by empowering juries to make decisions in our courts. Alienable, however, that natural right has proved. The journos at the Herald are correct to suggest that “In courts of solemn (as opposed to summary) jurisdiction, which handle serious cases, there is always a jury. The only exception was the Lockerbie prosecution, which because of the special circumstances of the case, was heard before three Scottish judges sitting in Holland without a jury.” However, it is crucial to emphasise that the requirement for a jury trial in Scotland is not due to a vested right in the accused to be tried by a jury of his or her “peers”.

Rather, it is a question of competence of the tribunal to try particular cases at all. For example, statute directs that some offences can only be tried summarily. More traditionally, jurisdiction over the group of offences which are described as Pleas of the Crown – most prominently including treason, murder, rape – is exclusively located in the High Court of Justiciary in Scots Law, and hence, trial by jury. As the name suggests, the pleas are more concerned with the nature of the offence indicted than the rights of the accused.

Outside of these limitations, in Scotland the prosecutor has exclusive entitlement to determine the forum in which a particular prosecution will be pursued. This is in contrast to England, and its category of so-called “either way” offences where the defendant can submit to trial by a bench of magistrates or in the alternative, can choose to be tried by those peers everyone is so keen on. Insofar as Scots believe in general they are entitled to be tried by jury, they are being misled. The lyrical but waxy nonsense spouted by the Herald today only tends to confirm these mistaken apprehensions. Moreover, the editorial plucks upon a familiar string of a familiar English legal controversy – fraud trials – and thrusts a rhetorical wedge towards the reader, inviting them to apprehend its solidity:

“If juries are abandoned for fraud trials, could it be the thin end of the wedge? Trials of terrorist suspects and health and safety crimes are often just as long. By all means let us debate this issue. However, the principle of trial by one’s peers is too important to sacrifice on the altar of efficiency.”

This too, I’m afraid, is quite misleading. Bolting horses, come to mind. Gates long fallen off their hinges. Fat end of the wedge firmly … er … what was that metaphor again? In 1999, Peter Duff pointed out in his article The Scottish Criminal Jury: A Very Peculiar Institution that 92.3% of contested cases in Scotland – where the accused does not plead guilty – were heard and decided upon without a jury. This amounts to the curious fact that, according to Duff’s analysis, that fewer than one in a hundred of all persons accused of crime have their fate determined by a jury.

This may be something of a surprise to people, who not unreasonable and quite justifiably, have little sense of how the broad structure of prosecution in Scotland functions. A brief look through the Crown Office and Procurator Fiscal Service reports from 2003 – which I have generously totted up below for easy comprehensibility – shows the real extent to which jury trial is resorted to in Scotland, and how paltry and misleading vague idealism – backed up by half-arsed journalist research – proves.

Per the Crown Office's Annual Reviews from 2003/04 - 2007/08...

2007/08

787 prosecutions were heard in the High Court, 4811 in the Sheriff and Jury Court, 81,666 in summary Sheriff Courts or Glasgow Stipendiary Magistrates and 40,154 in District Courts.

Total number of causes prosecuted: 127418.

Number of those cases heard by a jury: 5598

% of the total jury trials in 07/08: 4.4%

2006/07

High Court 839; Solemn Sheriff 4224; Summary Sheriff/Stipendiary Magistrate 82,688; District Court 38,973. That breakdown again:

Total cases: 126,724

Number of those cases heard by jury: 5063

% of the total jury trials 06/07: 4%

2005/06:

836 High Court cases, 3905 sheriff and jury trials, 78,432 summary Sheriff/Stipendiary Magistrate and 70,746 in District Courts.

Total cases: 153,919

Number of jury cases: 4,741

% jury of total 05/06: 3%

2004/05

High Court 852; solemn sheriff 3611; 83,355 summary sheriff/stipendiary magistrates; District Courts: 41,292

Total: 129,110

Number jury: 4,463

% Jury: 3.5%

2003/04

High Court 1,168; solemn sheriff 3352; summary sheriff/stipendiary magistrates 83,740; District Courts 39,032

Total: 127,292

Number jury: 4520

% Jury: 3.6%

By my reckoning, since 2003 the number of jury trials in Scotland has increased, as has the percentage of the total prosecuted cases which were resolved using solemn procedure (the poncy lawyerly name for jury trial). However, as a % of the total, jury trial constitutes a tiny portion. The cultural prominence of the idea of jury trial – vividly if fatuously captured in the Herald’s editorial – significantly overbears its actual incidence. Scotland here is not outside of the van. Interestingly, in England where there is a partial right, in certain circumstances to elect jury trial, the percentage of prosecutions which opt for or are directed to jury trials is of a similar low rate.

Part of this – particularly in the English intellectual space – is a touch of anti-Europeanism. A sort of legal nationalism that differentiates the Common Lawyers from those odious Civilians, so enamoured of their career judges who pass sentence without the assistance of ordinary folk plucked from the electoral register. In fact, as the statistics sharply demonstrate, criminal justice in Scotland is predominantly a professionalized activity, where deciders and sentencers are sheriffs sitting alone, in whom all of the accused hopes and fears repose.

We can certainly have a robust debate about the appropriateness or desirability of this system. Expect, naturally, frequent references to the weighty costs involved in gathering up the pool from which the fifteen are caught to constitute Scots juries. Just don’t lets mislead ourselves, entranced by our own easy idealism, and imagine Scotland’s legal world is something it conspicuously isn't.

Who are these "best" legislators then, eh?

Although I see that Jeff suggests Screaming Lord Foulkes' begging bowl article in the Edinburgh Evening News doesn't warrant the condemnation typically attending the doughty tribune's public pronouncements - I think we should be careful about o'erhastily simplifying the various strands of the argument.

In particular, it is crucial to differentiate between raising MP/MSP expenses and increasing salaries. Foulkes cheerfully and breezily smears the two themes together, fronting his article with the delicious representation of the historical parliament where “being an MP had been the prerogative of the rich Tory gentry and a few good solid Labour MPs with union backing enabling them to survive”. His point, perhaps fairly, is that the expenses aren’t “codpieced” but are forked over to various elves and sprites with which an individual tribune surrounds him or herself to do their bidding. All well and good. However, what concerns me is the last section of his article – and Jeff’s relatively casual suggestion that “

"...if we want the best then we need to pay for the best.”

But first, the Screaming Lord:

“Democracy is beyond price. I have seen military dictatorships and communist states and know how vital it is we have a fair, well respected and effective democratically-elected parliament.

In order to get the right people to stand, they need to be properly paid so we can attract people from all backgrounds. The current level of pay will not do that. If we pay peanuts, it is not surprising that we end up with some monkeys. Thankfully, we also end up with great leaders who are willing to accept the sacrifice.

There is, however, a quid pro quo. If a decent salary is to be paid to our MPs then they, in turn, might accept no extra outside jobs and pledge to work full-time for their constituents and in scrutinising legislation. That is only right and should, of course, also apply to MSPs.

I know I am setting myself up here, but please note that proviso. This would apply once elected members – MPs and MSPs – are properly paid. And it would also apply to members of the second chamber at Westminster if they also become full-time elected salaried members.”

The clear thrust of this, which SNP Tactical Voting clearly goes along with, we’ll call the thesis of representative merit. The argument’s architecture is Palladian in its cleanness, and seemingly irrefutable in the form it is envisaged.

Do you want to be represented by numpties?
No.
Would talented people be better?
Yes.
What are those talented people doing?
Disposing of those talents, for lucre
How must we tempt them away?
Enter Dubloons, stage left.

What the thesis conceals rather than illuminates, however, is the shakiness of this judgement of who constitutes the “best” legislator, or in the alternative, the most proficient representative member. So we must attend to the framing fundamental question in which this judgement is rooted - what are those standards of merit? It is assumed, I think, that this analysis has a sort of borrowed objectivity – namely that the sorts of folks one is tempting to become MPs are already in particularly highly remunerated jobs, and have thus, on some level, performative proof of ability.

However, I don’t believe we can collapse the whole complex web of capacities, abilities, character and education down to a simple grubby calculation that someone is sticky with excess income and therefore simply splendid in every particular. Of course, that is to put it a bit strongly. Yet to my leery eye, this sort of argument seems to be the judgement implicit in breezily and comfortably referring to “the best” without qualification in a parliamentary context.

There is another point related to all of this, and over which I fall out with Foulkes far more significantly. It is obscene for a man who claims to be committed to social justice, who claims to represent the underprivileged, to suggest that a salary of £60,000 per annum is “peanuts”. If that is peanuts, consider the number of people and families across Scotland and the United Kingdom who have to console themselves with far, far less. So why does Foulkes frame it in this fashion? This returns us to his salty vision of the “best” member and the conceptually deserving candidate:

“In order to get the right people to stand, they need to be properly paid so we can attract people from all backgrounds. The current level of pay will not do that. If we pay peanuts, it is not surprising that we end up with some monkeys. Thankfully, we also end up with great leaders who are willing to accept the sacrifice.”

While the introductory section is familiar Labourite flummery vaguely implying “inclusion” and “opportunity”, he immediately falsifies this vision. Why, do you think, this level of pay wouldn’t attract people from all backgrounds? Which backgrounds are being “excluded”? Hardly the impoverished, languishing on the pittance of a Jobseekers allowance, who after all, wouldn’t be making a “sacrifice” if they took their seats on the green benches and £60,000-odd quid of salary home.

And here’s the crucial point. Foulkes’ “right people” are constituted exclusively by middle class professionals sufficiently flush already to be chubby about the purse. Presumably Keir Hardie would be excluded. The manner in which the Screaming Lord envisions the barriers which standing to be elected brings – and relating this coin-pinching drama to a discourse of opportunity - lends the passage its curious bipolar whiff and to my mind, renders it insupportable. Just another, dreary, bourgeois paradigm, bemoaning its tawdry losses.

Which is, perhaps, an argument and a model of merit for members which some people might support. I would be surprised, however, if it was terribly many, once we’re up front about it. If we disagree, however, what alternatives are there for judgements about who are the most meritorious members or members-to-be?

One answer we might look to is Rousseau’s – my favourite Genevese spankee – who suggested that the legislator – here envisaged rather more as the law-giver than as the people’s representative – would require the following attributes:

“In order to discover the rules of society best suited to nations, a superior intelligence beholding all the passions of men without experiencing any of them would be needed. This intelligence would have to be wholly unrelated to our nature, while knowing it through and through; its happiness would have to be independent of us, and yet ready to occupy itself with ours; and lastly, it would have, in the march of time, to look forward to a distant glory, and, working in one century, to be able to enjoy in the next. It would take gods to give men laws.”(The Social Contract 1762)

Not many of those kicking about, I suspect.

My argument here - as will be quite clear - isn't an answer to the problem of what judgements and ideas should inform our ideas of legislative and representative competence. That is an issue for another post. However, please, don't lets be thoughtless about what Foulkes' suggestions and characterisation of the problem implies. A little reflection hardly recommends it, to my mind.