31 May 2009

Pro Camera Stellata (Laborensis)?

Why oh why, do we think, that the Labour Party have come over all historical and are identifying their three-member expenses disciplinary panel, set up under the auspices of their National Executive Committee, as the Star Chamber? Brown repeated it on the Andrew Marr show this morning. Why not go the whole hog and describe it as the Camera Stellata, and paint their meeting room with pretty, sparkling stars?

The Oxford English Dictionary describes the Star Chamber as follows, with a nod to its historical origins:

“A court, chiefly of criminal jurisdiction, developed in the 15th century from the judicial sittings of the King's Council in the Star Chamber at Westminster. The judges were the Lord Chancellor or Lord Keeper, the Lord Treasurer, the Lord Privy Seal, and any peers that chose to attend. The rules of procedure of the court rendered it a powerful instrument in the hands of a sovereign or a ministry desirous of using it for purposes of tyranny, and the abuse of it under James I and Charles I have made it a proverbial type of an arbitrary and oppressive tribunal. It was abolished by an Act of the Long Parliament in 1641.”

The Daily Mail contextualise the characterisation by advising its readers that “the original Star Chamber dished out summary justice at the Palace of Westminster from the reign of Henry VII to that of Charles I.”

To be more precise – and more contextualised in an English tradition which came to loathe and ultimately abolish the Star Chamber - it dispensed its decrees summarily, and hence, unjustly. The idea of the “Star chamber” has transcendent its specific historical character – and become a byword for any court which is accountable only to executive figures, and which is classically employed by that executive to pummel dissenters or liquidate that regime’s foes.

More broadly, it simply signifies a sham proceeding, an instrument of pure power. To identify any forum of decision-making with the Star Chamber is sharply to emphasise that proceeding’s arbitrariness, secrecy, and violation of the canons of natural justice. Labour’s National Executive might as well have called their three-person review committee the Kangaroo Court, or perhaps The Moscow Trials II: A Russian Proceeding in London. Indeed, if I was making submissions before the Sheriff and in my irritation characterised his jurisdiction as Camera Stellataesque, I could expect nothing from him but fury. But that is hardly surprising. It’s a term of abuse.

The curious question, knowing this, is why the Labour Party is fostering and propagating such an appalling characterisation of this body. There are, I think, various plausible answers. In the first instance, whatever the Star Chamber’s associations with unfairness, nobody would accuse it of excessive or yielding ruth. It’s a showy attempt at seeming tough and rigorous. It makes the three people on the tribunal seem less small and insignificant. Anterior echoes of this sort of thing was the Brown/Stalin narrative, or the persistent, allegedly presidential character of Mr Blair’s ministry. While some folk may perceive these characterisations as damaging – the underlying emphasis on control, decisiveness and power probably flatters the self-impressions of the intended targets. In the case of this contemporary Star Chamber, it also risks giving an impression of effectiveness and decisiveness.

However, while this is probably part of it – I suspect there is another, more insidious element slithered beneath the surface. It is, I think, perfectly possible, that the Labour Party is seeking to capitalise precisely on the idea that they are engaging in shadowy, ruthless, merciless adjudication. In short, glorifying the appearance of pitiless and brutal decisions - while privately engaging in a far blander, more careful and perhaps fairer sift.

This concerns me. Whatever the need for sharp disposals of villainous, mindless leeches supping at the vital fluids of the body politic, exalting as if admirable odious adjudicative practices risks valourising what should be despised. For the sake of a paltry political attempt to put a bit of testicle at the bottom of denunciatory comment, Labour has thought to summon up the blood spattered ghost of an old and wicked spectre.

It would be pathetic, were it not for the permanent risk that we let such old revenants stalk the living, and take up flesh again. Star Chambers continue to sit across the world. In Britain, there remains a modern political desires to reinstitute secret trials, sealed and inaccessible evidence, arbitrary imprisonment without hope of habeas corpus, mysterious military processes.

In this context, the Star Chamber characterisation is by turns disgusting and pathetic. Cringing and yet vicious. Pious and yet corrupt. We should crush under heel the snake of all Star Chambers, not identify with the serpent.

28 May 2009

Do you trust Elish Angiolini et al.?

As regular readers of this blog will be aware, I like to keep an eye on what Holyrood’s Justice Committee gets up to.

Three bills are clogging their legislative arteries at present. The Government’s Sexual Offences (Scotland) Bill is at stage three, while evidence taking sessions are ongoing in the second stage of the Criminal Justice and Licensing Bill. The law-enforcing cherry perched atop the dismal roll of themes and gloomy, parchmenty work of justice is Patrick Harvie’s private member’s bill on offences “aggravated by prejudice” on the “equality strands” of disability, sexual orientation, and transgender identity – properly defined broadly here as encompassing transvestism, transsexualism, intersexuality, persons who have legally changed gender or “any other gender identity that is not standard male or female gender identity”.

Although I suggested that our wedded tribunes of Justitia hardly soaked themselves in glory in the course of their recent fondling deference to the Lord Justice General’s shaky assertions to constitutional monopoly, they’re generally not a bad bunch. Or rather, the more gormless of their number generally conceal their incapacities by nodding judiciously during evidence sessions and declining to engage in extended questioning escapades. Or, in the alternative, if their enthusiasm and desire to participate gets the better of them, they tend to limit themselves to a single, meandering, well meaning, but ultimately defunct intervention. Usually clutching their papers for grim death.

Chief shambolic wobblebottom on the Committee is probably Cathie Craigie. She cobbles together her shivering sentences bit by bit from a dictionary she seems only dimly to comprehend. Her mind furtively and futilely toddles along after those who submit to her ponderous inquisitions, who tend kindly to indulge the poor dear by politely ignoring her more doddering outpourings. Paul Martin – son of the dear guillotined Michael – hardly seems to say anything at all, inheriting a full share of his father’s eloquence and easy wit. Labour fares rather better with their final representative on the Committee in the person of ex-Deputy Leadership candidate Bill Butler. Among the less glottally-stopped of his comrades on the red benches, while I absolutely would not adhere to all or perhaps most of Mr Butler’s views, at least he is capable of articulating them. One even gets a sense he may have a mind of his own, something of a glimmering gewgaw in the faded and desiccated regions of the collective Labourite cranium.

To my understanding, however, Butler doesn’t quite cut the watercress with his party colleagues, and has scrupulously avoided the trial of being called to front bench attention during his nine-odd years in the Parliament since his election to represent Glasgow Anniesland in 2000 following the death of Donald Dewar. But don’t lets forget – the whispering Paul Martin is Fergus Ewing’s penumbra as Minister for Community Safety. He’s his party’s man in the Committee. And the silence is telling. Poor Martin, however, has to report to the lumpen Richard Baker for his punitive orders, an unenviable task whomever it befalls. Hardly a smashing justice line up, there. Whatever MacAskill the verbal orgiast’s shortcomings.

While Labour bashing is always jolly, an interlude for balance. Stewart Maxwell seems more insistent than incisive, and at times more obtuse than insightful. Needless to say, Baillie Bill Aitken presides over his assizes with the characteristic judgemental pertness of a Glasgow worthy. With a Justice of the Peace’s dab hand at mixing condemnatory colours with the multihued human effluences that bespatter the records of Scotland’s lowest courts, he invites, directs, grovels and lets drop legalise, immensely pleased to be in the know.

But back on the positive kilter. As I noted in my hostile review of the Scots judiciary’s submissions on the Sentencing Council part of the Criminal Justice and Licensing (Scotland) Bill, the judges were not wholly exempt from a few choice, doubting questions, albeit overly gently for my tastes. The key Socratic disquisitioners on the Committee are the SNP’s Nigel Don and Robert Brown for the Liberal Demoncrats. Their relative fluency and confidence with the terminology and institutions here is perhaps hardly surprising – both have undergraduate degrees in law. Brown nabbed his LLB (Hons) First Class from Aberdeen University, while Don’s wikipedia entry suggests he studied Law at the University of London. That background is certain to generate confidence. One needn’t stumble over words, relearn concepts, or self-consciously employ them. There is no great mystery to it. It does not require thunderous mental capacities. For those who regard the prating of lawyers with incredulous incomprehension, however, it can be intimidating. The pressure to defer to those who seem to know is significant. Or worse, not to own up that one’s mind is skipping across the gleaming surface of a discussion with all the perceptive force of a stone speculating on the unguessed depths of the ocean.

If all of the Committee seemed cowed by the majesty of Lords Hamilton and Gill, interestingly they gave three police officers a hard time this week. Chief Constable Stephen House of Strathclyde Police and Chief Constable David Strang of Lothian and Borders Police were representing the Association of Chief Police Officers in Scotland. Gordon Meldrum gave evidence in his capacity as the Director General of the Scottish Crime and Drug Enforcement Agency. The points of contention concerned the Serious Organised Crime section of the proposed Bill, contained in the draft in § 25 – 28.

Proposed are a new range of specific offences of involvement in serious organised crime, directing serious organised crime, failure to report serious organised crime and finally, providing for an aggravation of existing offences on account of a context of serious and organised criminality in which they occurred. In the first phase of questioning, both Brown and Don posed some apt questions about the detail – and broad generality – of these sections. As soon as legislation lapses into tautology, one generally ought to be concerned. Here’s the section as drafted:

25 Involvement in serious organised crime
(1) A person who agrees with at least one other person to become involved in serious organised crime commits an offence.
(2) For the purposes of this section and sections 26 to 28 -
“serious organised crime” means crime involving two or more persons acting together for the principal purpose of committing or conspiring to commit a serious offence or a series of serious offences, and “serious offence” means an indictable offence -
(a) committed with the intention of securing a material benefit for any person, or
(b) which is an act of serious violence committed with the intention of securing such a benefit in the future.
(3) A person guilty of an offence under subsection (1) is liable -
(a) on conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine or to both,
(b) on summary conviction, to imprisonment for a term not exceeding 12 months or 10 to a fine not exceeding the statutory maximum or to both.

What is a “serious offence”? As the MSPs pointed out, pretty much anything. “Indictment” refers to trial by jury. Owing to our loose and contingent system, save for a few self-consciously minor charges only competently triable summarily, the vast majority make no stipulations or place no limitation on which court an act should be tried in. It is thus theoretically possible for a shoplifter charged with theft to find themselves before the High Court, arrayed with its fifteen jurors and significant sentencing powers. Of the essence here is prosecutorial discretion. Argued the police folk, basically, you can trust us and the Crown Office. We don’t have enough cash to indulge ourselves in this way. We’ll employ the legislation on “Mr Bigs”, not Master Smalls.
Which, up to a point, is perhaps true.

This is a familiar argument attending most forms of penal legislation where definitions prove difficult, and concrete cases although imaginable, present a difficulty to draftsmen. However, the problem isn’t simply textural. There is also a policied aspect to this. Per the Chief Constables, there is much talk about flexibility in definition. What this amounts to, I would suggest, is a contingent desire for control. Can’t define it up front? Easy, just devolve the power to a conscientious character who can make the right choice in concrete cases, massaging a definition to avoid the morally innocent and carve at the morally guilty with the swift and unerring claymore of justice.

In order to do this, however, it is necessary to make much that is not blameworthy illegal, and trust to the benevolence of the Lord Advocate and her subordinates. The most striking – and to my mind, appalling – example of this trend is the English & Welsh Sexual Offences Act 2003. If its sections are interrogated, that Act makes it an offence for two 15-year-old children to kiss in the classic locus in quo “behind the bike sheds”. Both, potentially, are liable to up to five years imprisonment. Once again, the tired and trusting refrain “prosecutorial discretion” falls from the legislative lips. And we all become slaves to unfettered legal whim. “But only technically…”

It is a conception of law which does not rely on applying general rules to concrete cases, but which makes a rule so general that each case can effectively only be adjudged concretely. It is a campaign of overcriminalisation, and to my mind, excessive concentration of power in the unexamined attitude of prosecutors. While it is not my intention to suggest that they would necessarily exercise these powers improperly, surely this is a contingent point, and limited to the present crop of prosecutorial characters. What of radical social change, when the contingent professionalism which the police officers use to justify their position falls away? Or, what if their claims to universal professionalism in the present prove disingenuous or misinformed? After all, the use of terrorism statutes against the Icelandic Government was not anticipated when it was drafted or voted upon. We won’t use it that way, the ghostly refrain.

Should we believe them? Or should we draft our laws so that it doesn’t matter if we believe them or not – namely in meaningful generality? I have my suspicions of people in uniform inviting me to entrust myself to their good will. The police officers suggest that the present charge available in these circumstances – being involved in a criminal conspiracy – is difficult to prove and unhelpful. When questioned as to why these sections of the Bill would assist them, or more pointedly, why they imagine that it will be easier to prove the offences outlined, I heard no satisfactory answer. Indeed, if the type of evidence needed to prove either offence – either the current offence or the proposed offence – is identical, what is the benefit?

I can appreciate the problems associated with prosecuting the shadowy figures spinning the webs of organised criminality and the problems of what information the police can or cannot disclose in evidence in courts. To their credit, I think members of the Justice Committee have similar doubts about this and the excessive breadth of the section. If, however, it is not clear that the legislative change would be beneficial, and simultaneously is plain that it arbitrarily empowers states officers, I would urge the Committee to act on their little doubting thoughts. Since it is plain that they have them, I would urge the Scottish Government to pay attention. They're talking sense.

27 May 2009

Sam Beckett Kids Show Shocker!

Following in the literary footsteps of George Orson Wells, who wrote Catch 1984 on the secluded island of Isla, last month the South London solipsist Will Self accepted the recently inaugurated Orwell Writer in Residency post on the island, but found the 1m2 bothy was occupied already - by a tatterdemalion figure who claimed to be Samuel Beckett himself.

Beckett, who wrote mostly in words, was reported to have died in 1989, and share a grave with his wife in the Cimetiere de Montparnasse in Paris. No so, claimed this Estragonian waif. As if his continued existence was not shock enough, the elder patesman of the Absurdist tradition had another confession to make… “I write the ChuckleBrothers…” he revealed to a startled Self. We sent our Brigadoon correspondent to unearth the truth…

“As my car drew up to the half-crumbled cottage, the fond fizz of heather smoke dizzying from its chimney, I was suddenly possessed with a sense of overwhelming melancholy, as if that distant trail of smoke prophesied change. Or unchange. I knew my life would never be the same again. Unless it was.” I mused inwardly, passing a slouching grey loch on my right.

Finally, the small rump of the house fumbled into view. Unoccupied, cold. I knock. Will Self left when he learned that the island didn’t boast a Sainsbury’s. No answer. “Out here,” a nicotine-spiced voice calls. I turn the corner of the peat-sided dwelling, revealing a small, unkempt lawn, dandelions pushing their little yellow faces through the grass, trying to catch the scant rays of the Scottish sun. The lawn untroubled, save for an old metal dustbin, an empty bottle of Bruichladdich propped against its trunk. “Mr Beckett?” I call. The tin-can rustles, and a dry corner of familiar, careworn, walnut features juts.

“Fuck off.”

In the event, after his initial hostility, he produces his birth certificate, corners curled and yellow. Why did he keep quiet for so long, I ask? “In a review of Godot, a critic said that ‘nothing happens, twice,’ and you know, she was right. Locking an audience in the theatre for four hours is all well and good, but they still get to go home afterwards. But the possibility of affecting children, day after day after day. That’s something else. It seemed logical to fake my own death, find an isolated spot and bide my time. The work I began in Waiting for Godot and Endgame - the Chuckle Brothers is simply its logical conclusion. My work's crowning turd.”

“Calling them ‘Chuckle’ merely enhances the alienation effect, of course. I realised, to my regret, that Estragon and Vladimir were simply too vital. Too alive. At least with Barry and Paul we can be certain that their lives are without much enjoyment, certainly no sexual fulfilment. Unless they take it with one another. In front of the telly. ChuckleVision first graced our screens in 1987. Twenty -two bloody years and twenty straight series later - You don’t get much more desolate than that.”

A BBC spokesman for Rotherham-based Barry and Paul Chuckle vociferously denied the allegation that the ChuckleVision is in any way rehearsed or scripted. “Absolutely not. BBC licence payers must expect to be treated in a good faith, honest way. Any suggestion that Barry and Paul conduct any sort of second life or are real people is simply vicious rumour, and I reject it entirely.” Answering Beckett’s allegation of late night co-mutual masturbatory sessions, journalists were reassured:

“Nothing happens, twice,” the Brothers confirmed.

26 May 2009

"McAdam and Eve, not McAdam and Steve"?

Not many people in Britain will have heard of the National Organisation for Marriage. Lucky them. The nation in question is, perhaps predictably, America. Equally predictably, the ‘marriage’ that they are for is strictly one man + one woman. To quote from the anonymous witty intolerant who drafts the placards for demonstrating Christ-like groups, the National Organisation for Marriage’s essential creed is “Adam and Eve not Adam and Steve”.

This being
America, however, they don’t just hash up some ineffectual banners, round up a phalanx of frothing flagellants and troop towards whatever event offends them. Heavens no. Quite naturally, they produce an advertisement for the television. And what fruits their labours produce! It is easy to forget, or rather, not to appreciate, how generally beneficial and beneficent our public discourses are, by contrast. Scuffles surrounding Scott Rennie’s simultaneous “homosexual lifestyle” and summoning by the congregation of West Cross Church to officiate over their funerals, baptisms and weddings noteworthily kept peace about a general, secular sexual object choice.

For those who do not embrace a Biblically informed sexology – I would say a majority are included in this category - the only Demon King to lay a goatish hoof anywhere near the public stage were those inspired by the Good Book. And that benevolent monarch came with a compassionate expression, advocating prayerful dialogue and love in his ventricles.

The point I am slowly wending towards is twofold. In the first instance, you’ll find below four choice adverts from this National Organisation for Marriage. All of them wondrously loathsome, ponderously argued, impressionistically intolerant – and perhaps most of all – insisting of the good conscience of the intolerants. All in all, a highly uplifting minute of film. Prize for the worst is for me, pretty much an even toss up between “A Gathering Storm” and the Curious Children short. I quiver for their parents if God is just. See for yourself.

On the second point, to subtly slip a tartan cassock over this story’s head, the question of secular and religious norms in Scottish public life. As I’ve mentioned before, our politics in Holyrood adheres to a sort of sensitive-fingered quietism, eschewing divisive or combustive political questions. I disagree with this nervy sensitivity, generally. Such issues are, to my mind, to be pursued. They are one of the crucial aspects of the intellectual case for devolution. While we may flatter ourselves – generally ignorantly and with an oily air of self satisfaction – that our American cousins are less informed, shallow-pated, guileless folk – the States have a far clearer appreciation of their own legislative, idea-forming strength in some respects than our own jurisdiction.

Ask yourself, why doesn’t Scotland permit marriages, whatever gender the various parties are? Why does it criminalise multiple marriages, and demand that the normative essence of public relations are strictly pairings? Take another example which I’ve blogged on previously and at length, on the legality of assisted dying. My point is, these debates in other places are not idly to be gazed at, content and irresponsible. Devolution has made these debates our debates. These choices our choices.

People interested in the tittle-tattle of politics, gossipmongers, placemen, toadies hardly have time to notice this sort of thing. They are more concerned about the tonal qualities of one of David Cameron’s farts than the justice or injustice of these questions.

Don’t lets have more of this in Scotland. Lets be divisive. Lets be decisive.

25 May 2009

Radical Spruce

As is no doubt apparent, I've given the old blog a bit of a radical sprucing up. The layout was rather dull before. Hopefully the slight rearrangement will make for easier and more engaging reading.

24 May 2009

Mission Accomplished: Peat Worried!

The season was short, but sweet. Many tranquillising drumlins were scaled. Rare rays of Scots sunlight absorbed. Obscure items of local history tucked away inside my skull to be revealed to the innocent at a later date, to their exquisite boredom and mine.

In short, just your average Scots rusticated bore out of town, pursuing the ancient habit of worrying peat.

The promised gilded silence will, by consequence, start to peel come Monday. It was just gold leaf, not golden through and through, I'm afraid...

16 May 2009

Gone Peat Worryin'...

Righty-ho. It is that time again. As I’m sure you’ll all know, the “Glorious Sixteenth of May” opens the much-vaunted Scottish Peat Worrying Season with fanfare and song. Galoshes are pulled on. Walking sticks selected. Corrie lochs identified.

For myself, I’ve stowed my tarasgeir, tusker and flaughter. Propitiatory googas have been gralloched. A jelly piece an’ a bumper o’ tappit hen broth have a’ been packed tae ward aff hunger.

My intention this year? To stramash up ol’ Tom-na-Weir, find me a patch o’ peat an’ worry it mightily as our faithirs did a’fore us. I’m being put up in the Big Grey Man of Ben MacDhui’s bothie.

In sum, I’m awa’ furth o’ Glasgae for a week, so anticipate gilded, blogless silence here.

Michael Gove: Tarrrrrtan Burrrlesque!

When I was younger, and in an act of maximum political open-mindedness, I allowed myself to be dragged along by an arch-Tory school chum to one of Iain Duncan Smith’s “Compassionate Conservatism” conferences.

I have two abiding recollections of that London conference. Neither of them particularly political. In the first, imagine my pleasure when I encountered a charming, fresh-from-the-Gods stereotype of the ignorant South Englander, who advised my more youthful self, that he knew that “everywhere north of Manchester” was “basically the same.” At his elbow, another compassionate conservative. A leering mask of sticky oleaginousness, this youth squinted at me half-pubescently, and giggled at his witling crony’s wise remark. This particular picture had pinned a Union flag at his lapel and noosed the matching tie about his scrawny neck. I thought he looked like a Fascist, definitely Goebbelsesque.

It was, as you can imagine, a jolly time.

The only reason I bring up these poisonous memories is that at that conference, Michael Gove – then still a petty scribbler – joined mad harpy Melanie Phillips in a media session. What they said, I cannot recall in particular. I do remember, however, despite having seen Gove on the telly and being aware that he was Scottish, being unable to detect even a faint cadence of it in the flesh. Not a note of his adjusted modulations suggested an Edinburgh birth or an Aberdonian education.

Not that I’m suggesting one ought to be particularly offended by this. It is simply a curiosity. As the Russian literary critic Mikhail Bahktin perceptively pointed out, “languages are philosophies - not abstract but concrete, social philosophies, penetrated by a system of values inseparable from living practice and class struggle.” In Britain, to this we can confidently add that a politics and a philosophy surrounds accent to boot.

Curious then, in marked contradistinction to my prior experience, to see Michael Gove at the recent Scottish Conservative Party Conference, rrrrolling his ‘r’s grrrrowlsomely.

Gove edifies his audience with recognisably clipped Scottish vowel sounds. Listen for yourself here. His speech is in the first section of the conference. The softening south-of-England nasal varnishing which he normally applies when speaking in the open spaces of London is absent. While he didn’t quite lapse into full Mel Gibson mode, to my ear, there are distinct overnotes of fullblown tartan burlesque here, distinctly different from his normal “British media” voice.

I wonder why he does it, and how aware and consciously Gove chooses the differential styles he uses. Ho hum.

15 May 2009

On first looking into Iain Gray's Home (er…)

I’m not a great one for watching the telly. However, by some chance, I was in front of the set yesterday evening when Scottish Labour’s Party Political Broadcast for the European Elections exploded into my consciousness.

Or at least, tapped me on the shoulder, and deferentially asked me if I had a minute or two to spare. Graciously, I acceded, and settled down like a good political skygazer, awaiting a new Kuiper belt to swim into my ken. Breath was bated. Like Cortéz, my eagle eyes stared pacifically, determined to be fair and balanced. Wild surmise grew as the clips trudged by. As the reel ran off, we peeked at each other, silent and not quite sure what to make of it.

Perhaps the most curious aspect of this European Parliamentary election broadcast was the fact that it contained no European content at all. Or – save for a small apprentice excursion – any apparent political content either. Indeed, it contained almost nothing apart from Iain Gray. And the er … vivid narrative of Mr Gray’s life.

In fact, exactly the same video which Scottish Labour produced in early March of this year, entitled “Iain Gray: Working for

Ludovico Einaudi’s meandering middlebrow overtinkling “I Giori” conducts us through each succeeding tableau of civic virtue. We are treated to touching black and white photos of Mr Gray as child, clutched in the arms of a grandparental relation. Reference is made to strict, devoted, hard working, dutiful family influences. No moral compass is produced in evidence, but the instrument is certainly winkingly concealed somewhere inside one of Gray’s safe suits.

A few choice characters praise Gray’s humanity, attest to his ability to connect with children, demonstrate his frequent use of buses. Happy pictures with beards and happy snaps without beards. Committed remarks about loving teaching. Obviously, he can’t love it that much otherwise he wouldn’t be beseeching Scotland in the bowels of Christ to consider that she may be mistaken in keeping Labour out of office.

Isn’t he a grand chap? Lets vote Labour in the European Elections! It’s a cheap non sequitur, but a spot of easy fun at Gray’s expense over it is probably too straightforward to be admirable. Actually, it may be a rather good idea. After all, I’d suggest that it is too obviously partisan to claim that Iain Gray’s polled 7% “best First Minister rating” is animated by public dislike for the man. I doubt that. Largely, his anonymity is the problem. Not, of course, that I intend to suggest that people would approve of him if they did know him. However, how decisive could one be about a man who one has perhaps only caught in snatches in the media, instantly forgettably?

In this sense, given an expectation that the European election results will be answered for by different considerations, using the airtime to air Gray’s character is perhaps an instance of low animal cunning. Of course, if one was wearing one’s doubting cap, you might also suggest that Scottish Labour may be a little strapped for cash, and are hoarding their pennies for imminent, more threatening, electoral prospects. Hence, they’re doing Europe on the cheap, feeding out old footage of dubious relevance.

A curiosity, either way.

14 May 2009

Scottish judges invent a constitution...

Lets admit it. Whoever decided to christen the proposed legislation the Criminal Justice and Licensing (Scotland) Bill lacked imagination. Hegemonic blandness seems to be the stylistic preponderance among drafters of our would-be laws. These ink-stained souls inflict their deep-rooted prejudice against snappy titles upon generations of law students and professionals, no doubt achieving a dribble of blotted pleasure by reusing the blandest of names simply to confuse would-be investigators.

Such are the papery pleasures of our attorneys.

Meanwhile, as the sun was just beginning to canter on its circadian circuit over Holyrood on Wednesday, in Committee Room 1 Baillie Bill Aitken and Holyrood’s Justice Committee congregated to take evidence from a cavalcade of Scotland’s legal worthies on the aforementioned legislative suggestion.

I’m torn when viewing these proceedings. On one hand, they firmly demonstrate how devolution of power creates spaces in which useful interaction between the branches of state power can occur. Connections are made, suggestions aired. This can be productive. However, on the doubting left limb, it is impossible to watch the way most of our representatives addressed themselves to the congregated judges and sheriffs without being slightly disgusted.

The tribunes grovel terribly. Absent is any manly (or womanly) firmness which ought to operate between citizens, or that brisk but respectful egalitarianism of sentiments and style which one would hope might prevail among a free people, resolving a public question by discussion and debate. Although difficult to capture and largely inchoate in its expression, the abasement and deference which the MSPs practised towards Arthur Hamilton and Brian Gill looked, to my eye, positively snivelling.

It must be a matter of disappointment to Bill Aitken that on account of the male pattern baldness which has afflicted him, he is without a forelock to tug.

For the main, it was rather turgid stuff which I wouldn’t propose to cover in any real detail. One element of our judges’ evidence, however, cannot politely be ignored. The Herald article focuses primarily on the judicial hostility to a proposed Sentencing Council. Their Lordship’s little doubting thoughts are actually an unsightly knot of different concerns, the disparate strands of which are easily muddled together, as they are meant to be. Individual threads are readily lost amid the tangle. The gist of the submission is bluntly plain: Don’t do it Kenny.

I want to focus on one particular claim made by (Lord President) Arthur Hamilton and (Lord Justice Clerk) Brian Gill which we’ll loosely characterise as their constitutional objection. While the judges’ points about cash concerns, a nudge and wink about difficult choices in an impending age of austerity may be fair, and prim finger-wagging about paucity of evidence is not wholly unreasonable, the way Hamilton & Gill harped on the constitutional string is to my mind, utterly ludicrous, a dud and objectionable note.

These are complex issues. I’d propose, for easiest comprehensibility, first to quote the double act’s constitutional objections, then to suggest why we should all reject their arguments with direct and unyielding ferocity. To their credit, Nigel Don MSP and others did express their doubts in Committee, but not half to tartly as I could have wished. I’ve highlighted the sections of the submissions which are, to my mind, of the first importance:

Quoth the judges, in their written submissions, sections eight and ten:
8. Thus a range of mechanisms already exist for exploring and developing sentencing issues. These could no doubt be improved and, perhaps, as suggested below a wider participation be engaged. However, the central and essential element of these arrangements is the constitutional principle that, with limited and specific statutory exceptions, the High Court has always been and remains the body ultimately responsible for decision-making in the development and implementation of sentencing policy. We regard that principle, which is well-noted in Scotland, as of the first importance.

10. Whatever may be asserted about the residual discretion of individual judicial office holders when passing particular sentences, the Bill’s proposals strike directly at the independence of the judiciary (and in particular of the High Court) as the arm of Government essentially responsible for the setting of sentencing policy. The proposals (as framed) are fundamentally unacceptable both on domestic constitutional grounds and because mandatory directions to the court by a non-judicial body undermine the judicial independence required of courts by Article 6 of the European Convention on Fundamental Rights and Freedoms.
Get that? The judges are suggesting that “the constitution” gives them wholesale monopoly on sentencing policy. Mandatory sentences for particular crimes are “limited and specific statutory exceptions”. One might well ask, what constitution was this in particular? You’ll notice that the judges don’t point to any specific grounds of authority for this flagrant suggestion. Nor could they. They wouldn’t find any. Even the reference to the European Convention is in bad faith, as it can only be a backwards rationalisation of their claim for traditional and essential and exhaustive competence over public policy respecting sentencing.

Lets be clear about this. The judges aren’t claiming simply that individual disposals should be theirs to make. Rather, on unfounded, alleged “constitutional” assumptions, they are claiming a conscientious oligopoly over the normative imperatives of how crimes should be adjudged, and what tariff of punishments should be meted out to the guilty.

Perhaps an overstatement, do we think? They’d no doubt produce the evidence when it came to the bit, grounding their grand constitutional claims to entitlement? Lets look at the oral evidence and see. At various stages in proceedings, Gill and Hamilton made the following observations:
“It is part of the constitution that it is for the appeal court to determine sentencing, except to the extent that legislation lays down what the sentence should be.” Brian Gill, Lord Justice Clerk
To his credit, Michael Don MSP put it to Arthur Hamilton, what if Parliament did away with prison altogether? Wouldn’t the High Court of Justiciary, in his words, be “stuck with it?"
“I am trying to distinguish between policy development, which I think is for us, for better or for worse, and individual sentencing, which is clearly and unambiguously for yourselves.” Nigel Don MSP
Lord Hamilton replied in a model of mealy mouthed disagreement, the implications of which are simply astonishing. Quoth the Lord Justice General:
“There is a debate here: although it is technically within the powers of the Parliament to say that there shall no longer be imprisonment, there is a question as to whether it would be proper for it to do so. Likewise, there is a question as to whether it would be proper for it to remove from the High Court the powers that it has exercised hitherto.”
As I read this, Lord Hamilton’s vision of debate here is not on whether one should do away with prisons at all. No, no. Rather, he concedes the plausibility of the thought-experiment and even the “technical” – by which I assume he means “legally entitled” – capacity of the Parliament so to do. So what does this “proper” category relate to then?

Clearly not the appropriateness of doing away with custodial punishment. Indeed, insofar as he relates it to the matter they are currently discussing, he seems to be suggesting that such a move may not be constitutionally proper. Note the subtle change in tone, because it is easily missed. Returning to my prior point: what constitution are they referring to? This remark makes plain the true substance of Hamilton’s comments.

He is not saying, descriptively, as a matter of law, that the constitution is a barrier. Rather, the judges are advancing a normative, evaluative claim about how we should organise our state institutions.

Hence the reference to Article 6 of the ECHR. The string being harped on here is that we ought to have separation of powers. Which is fine, if one is honest and write “We think that….” Or that “the High Court has always been and remains the body ultimately responsible for decision-making in the development and implementation of sentencing policy” – and so should remain. However, the judges aren’t being so plain in their written submissions. Rather, they are cloaking their views in a bogus constitutionalism, in what seems a consciously manipulative fashion.

After all how are parliamentarians to take such a claim to constitutional knowledge from the most elevated judicial officer in the country, who as Bill Aitken gloatingly remarked, “best knows the legal system”?

Will they take such references to constitutionalism as a statement of law, with firm foundations – or a much wobblier judicial preference? I know which one seems more likely to me. Such a remark is most obviously understood in the misrepresentative manner of signifying legal constraints. To leave it hanging, without clarification, I would suggest almost amounts to a misrepresentation to the Justice Committee. Such flagrant claims to constitutional knowledge, concealing sectional preference, cannot withstand clear-eyed examination.

Sentencing policy is well within Parliament's grasping reach, as it ought to be. I'm not saying that we should have a Sentencing Council of the type envisaged in the draft bill. In fact, I generally dislike bodies arranged along similar lines, whose independence stands apparent justification for their decisions. However, the rubbish the Lords and Ladies of Council and Sessions are spouting here ought to be repudiated utterly, and seen for what it is. A cunning ruse.

[Anyone inquisitive enough can watch these evidence-taking sessions at Holyrood.tv]

13 May 2009

Hannity contra Obama: The Mustard War

If anyone feels that their pulse is overly languid, or that the pressure roaring through their tubes is insufficient, just charge up Youtube, and type in “Ann Coulter”, “Bill O’Reilly” or my personal favourite, “Sean Hannity. A hard and wiry pulse is almost assured. For anyone who has never actually witnessed Fox News in motion, it is by turns a brutalising and hilarious experience. One not to be missed.

The race to the bottom – and the award for Most Loathsome Fox News Contributor – is obviously a vexed decision. There is such an embarrassment of riches. For myself, Sean Hannity’s schmaltzy, self-regarding stupidity wins by a furlong. I enjoyed, in particular, this showing of gloating class hatred, and conscientious American Patriotic “littleguyery”:

The most curious and painful discovery of the clip, however, is its demonstration of the fate to which retirement habitually consigns clapped-out Prime Ministers. I'd expect a resort to advertising from Jim Hacker, but I’ll never be able to take Francis Urquhart quite so seriously again...

12 May 2009

Dredging the Parlimantary moat!

Stories of securing greedy sinecures and enjoying quiet patronage always seems to me natural Tory territory. And as the saw runs, everyone turns Tory in office in the United Kingdom. However, my ideas here are probably haunted by images of ramrod Pitt the Younger – and for we Scots, Lord Advocate Henry Dundas – subtly dispersing public funds with a view to securing political stability and an eye, naturally, to acquisitive self interest.

Its often helpful to have a knack for literary good timing. As luck would have it, I just finished John Galt’s much neglected political novels, The Member and The Radical, published together by Canongate. Whose of you with Ayn Rand enthusiasms (towards whom I can feel only polite commiseration) you may recognise John Galt as the name of a character in Rand’s novel Atlas Shrugged. As far as I can deduce, this is merely an accidental identity of name, signifying no particular relation.

In the real world, Galt was born in
Irvine in 1779 and produced a number of novels. Both the Member and the Radical concern politics before the Reform Act of 1832. The Memberin particular, addresses itself to the corruption of the politics of the time.

The protagonist, Archibald Jobbry MP, buys himself a seat in a Rotten Borough basically to fend off his grasping relations, by tapping into the common wealth and dispersing it cannily towards his dependents. Although he doesn’t have his moat dredgedor glut himself on curries to the tune of £800 – by keeping a literary straight face and giving Jobbry the good conscience of his larceny – Galt stings. Even outside these times of greedy tribunes helping themselves, it is worth a read for those who enjoy pursuing the more neglected corners of Scottish literary life. Also, I can’t quite think of an earlier novel which is quite so political in its nature, addressing itself to the institutions of parliament. For that alone, I’d urge the curious to take a peek.

On the present penny tumult tearing at the sphincters of the Westminster “political class”, one can’t really do much better than the Daily Mash in summing up the cant denials and crapulous attempts to vindicate themselves by rule while simultaneously denying authorship. Silence gives consent. Over their expenses, corporately, MPs were very quiet indeed, exempted a few more honourable exceptions.
As to the allocation of damage, as I say, I find that Tories do sleaze stories better. Hazel Blears dab-handing is just too grubbily acquisitive, too obviously in it for the cash. Moats, manor houses, tennis courts, chandeliers, swimming pools? Now we’re talking. To borrow from Galt again, in his Last of the Lairds a character says of ducks revelling in the rainfall that they are “as garrulous with enjoyment as Tories in the pools of corruption”. In the present atmosphere, perhaps moats of corruption might be more apposite.

Political Dissuasion is right to pose the question, how tough are we on our own representatives? Do we find their excuses more plausible, because we like them? Do we prosecute our judgements against our enemies more fiercely, deaf to reasonable exculpatory circumstances, because we don’t? For what it is worth, for my money Salmond is making a craven calculation that amidst the reigning disorder, his own indiscretions will he trampled into dust by the crowds chasing Labour government coinguzzlers and Tory purseliners. The impending European Elections seem very firmly in view. I for one don’t find that terribly satisfactory.

11 May 2009

Fluffing jury sums...

Someone’s figures are well off the mark. But who? The Scotsman brings news this morning that our verbally fencing (typically with himself) Cabinet Secretary for Justice, Kenny MacAskill has heeded the remonstrating tone of his consultation respondees, and will not be altering the numbers properly constituting a Scottish criminal jury. Fifteen good souls and true it shall remain, for the foreseeable future.

Eyeing the detail of the Scotsman’s coverage, however, I was struck by the reported instances of jury trials in Scotland. Quoth the East Coast Times:

“The number of jury trials in Scotland has increased steadily in recent years, from 2,750 in 2005/6 to 3,234 in 2007/8. About 50,000 citizens each year are asked to sit on a jury."

I’ve been unable, through a brisk trawl of the t’internet, to discern quite where the Scotsman found these numbers. There is, at least, some internal consistency in them. Fifty thousand divided by fifteen would add up to around 3333 trials a year. If one adds the incidences of civil jury trial in Scotland, where twelve jurors are employed, typically if rareishly, to decide defamation or personal injury cases à la Tommy Sheridan¸ this might be plausible. However, it is profoundly at odds with the only long run of consistent figures which the Crown Office and Procurator Fiscal Service generate annually, which I previously collated here. The stability in those figures, matched with the fact that one might hope that the Fiscal would be in a position to know how many cases were tried in different courts, might lead us to favour these numbers. However, there are important qualifiers about those which I neglected to emphasise sufficiently previously. More confusingly, the Scottish Government seems to have its own number. Casting an eye through the Government consultation which has lead the august Kenny to retain fifteen-person juries, the alleged figures shrink even more. Section 2.2. of “The Modern Scottish Jury in Criminal Trials” document, published by the Scottish Government in 2008 suggests that:

"Approximately 575 sheriff and jury cases take place each year in the Sheriff Court; and some 460 jury cases a year in the High Court."

That would add up to a total of 1035, some 2199 less than the Scotsman thinks occurred in 2007/08, or 4563 less than the Crown Office have published as prosecuted in that forum. If the Scotsman figure about the approximate number of jurors called annually is correct, the Scottish Government would have us believe that approximately 48 people sit on each case, something of an inflation. Of course, I am conscious that what is generating this statistical dissonance may be variable definitions across publications. Who is counting what? None of the publications is terribly helpfully in weaselling out the truth. The Scottish Government publication references no other source for their number. Neither does the Scotsman. Nor are definitional qualifications made. The highest listed figures – those of the Crown Office – use the form “prosecutions were completed”. This points us to an unknown variable in the Crown Office statistics, namely, guilty pleas and the rate of contested trials. On this point, one can’t scrutinise their figures closely. As such, the number of trials actually decided by juries may be far lower than the number suggested by the locus of prosecution.

While I'd be disposed to suggest that the Crown Office figures are more likely to represent the broad truth, on account of their stability and the likelihood that they are in the know, the absence of qualifiers about how many of these trials were contested leaves us none the wiser about how many trials by jury were actually enacted. This does nothing, however, to decrease the salience of my previous point that in Scotland, juries are not sacred, but exceptional. The old nag lackadaisically clopped out of the stable of sanctity yonks ago. Either way, even if we include guilty pleas, both the Scotsman and the Government cannot be correct. Someone’s fluffed their sums.