25 September 2009

National intelligence & the invasion of England...

Fear not, I’m not forming a small, irregular militia with grandiose territory-annexing aims or questioning the mental acuity of our southerly neighbours along misplaced, racialising lines.

Rather, I must report that this is the last of my learned opinion on this blog which will be hammered out in the nipping, eager Scottish air. At least for the foreseeable future. This weekend, I’m upping sticks, stowing canvass and rumbling my wagon south to embark on another phase of scholarly labour, based en Angleterre. While bodily ex patria, the wonders of the technological world and its capacity to collapse conceptual space means that the information streams which keep me informed will continue to the babble in the same tenor, largely uninterrupted by my move. Along the same lines as I presume the inimitable J. Arthur MacNumpty gets by, I’ll still receive national intelligence in dispatches and continue to hoot and guffaw in response. Obviously, I’ll be without the blood-and-bones proximity to events – so I’ll be relying on you lot to keep me in order and furnished with a sense of the public mood which an electronic Herald cannot convey.

While my carts are trundling through tidy English villages and mowing down careful English vicars, there’ll be a wholesale bloggus interuptus here. Hopefully I’ll revivify soonish! Wish me luck!

Scots narcissism in the NYT...

Narcissism is one of life’s great pleasures. I’ve a private theory about how it intrudes in the apparently innocent work of rifling through a photo album. Watch someone you know doing so. Attend to the gaze. It will linger with a passing interest on this face and that – till halt – it comes upon a group shot from which the peeper him or herself gazes back. Expect the soul to stare at themselves with avid curiosity – no doubt affecting a measure of diffidence, for form. And why not? Everyone else looks much the same as they do when swanning around. The self, by contrast, experiences its physiognomy on the cheap – filmed with one, rather dodgy camera lens, stuck to its tripod.

A similar wriggling frisson of pleasure attaches, for me, to external representations of the political and national self. I refer, in particular, to international news stories about our domestic issues. While, for purely informative purposes, these bits of writing invariably contain less detail and less sharply winnowed facts than an embedded, more local account – their pleasure is precisely like that of seeing oneself in a photo. You are unused to seeing that perspective. Hence, I’m always narcissistically curious to see how local concerns are reported to the wider world. As I’m sure the scholarly Malcolm would agree, Scottish Nationalism, in the context of world nationalisms past and present, is a curious phenomenon.

These threads of curiosity combine in this article, published yesterday in the New York Times. Restore the hellish vigour to one, almost spent, revenant, the article is entitled Memo from Edinburgh: When Doing the Scottish Thing Backfires. Its stuffed with delicious treats for those who enjoy a bit of third-party self-regard such as myself. Also, I imagine that the Swine Pursuivant, the eminent eminence Richard Baker, will be tickled ruddy to have his grunting proclamations assail American lugs. Its author, Sarah Lyall, is the Times' London correspondent - I wonder if she has ever floated north of the Tweed in her puff - but don't let that put you off. For those of you given to digital and nationalistic narcissism, do take a gander. Trust me. It’s a peccadillo between you and your internet history.

H/T The Lockerbie Case

23 September 2009

Assisting suicide in Scotland (again)...

Just a couple of documents today, for your interest and edification. Firstly, the preliminary and transitory guidance on the prosecution of individuals for assisting suicide in England and Wales, issued by the high heid yin of the Crown Prosecution Service, Director of Public Prosecutions, Keir Starmer. This publication was prodded from the prosecutors, as most of you will recall, as a result of Debbie Purdy's litigation on the uncertainty and opacity of the determining reasons why the CPS may decide to prosecute or not in cases of assisted suicide. Secondly, in response to this document, I notice that on his Scots Law News blog, the estimable Professor Hector MacQueen (heroically named soul he is) has been able to produce a statement from wur ain Elish Angioni the Lord Advocate contextualising any Scottish response:

Launching his interim policy on prosecuting cases of assisted suicide today, the Director of Public Prosecutions, Keir Starmer QC, called for public participation in a 12-week consultation on the factors he has identified which will be taken into account when considering whether prosecutions will be brought for this offence.

Mr Starmer said: "Following the instructions of the Law Lords in the case of Debbie Purdy, I am today clarifying those factors of public interest which I believe weigh for or against prosecuting someone for assisting another to take their own life. Assisting suicide has been a criminal offence for nearly fifty years and my interim policy does nothing to change that.

"There are also no guarantees against prosecution and it is my job to ensure that the most vulnerable people are protected while at the same time giving enough information to those people, like Ms Purdy, who want to be able to make informed decisions about what actions they may choose to take."

The public interest factors in favour of prosecution identified in the interim policy include that:

  • The victim was under 18 years of age;
  • The victim's capacity to reach an informed decision was adversely affected by a recognised mental illness or learning difficulty;
  • The victim did not have a clear, settled and informed wish to commit suicide; for example, the victim's history suggests that his or her wish to commit suicide was temporary or subject to change;
  • The victim did not indicate unequivocally to the suspect that he or she wished to commit suicide;
  • The victim did not ask personally on his or her own initiative for the assistance of the suspect;
  • The victim did not have a terminal illness; or a severe and incurable physical disability; or a severe degenerative physical condition from which there was no possibility of recovery;
  • The suspect was not wholly motivated by compassion; for example, the suspect was motivated by the prospect that they or a person closely connected to them stood to gain in some way from the death of the victim;
  • The suspect persuaded, pressured or maliciously encouraged the victim to commit suicide, or exercised improper influence in the victim's decision to do so; and did not take reasonable steps to ensure that any other person did not do so.

The public interest factors against a prosecution include that:

  • The victim had a clear, settled and informed wish to commit suicide;
  • The victim indicated unequivocally to the suspect that he or she wished to commit suicide;
  • The victim asked personally on his or her own initiative for the assistance of the suspect;
  • The victim had a terminal illness or a severe and incurable physical disability or a severe degenerative physical condition from which there was no possibility of recovery;
  • The suspect was wholly motivated by compassion;
  • The suspect was the spouse, partner or a close relative or a close personal friend of the victim, within the context of a long-term and supportive relationship;
  • The actions of the suspect, although sufficient to come within the definition of the offence, were of only minor assistance or influence, or the assistance which the suspect provided was as a consequence of their usual lawful employment.

Mr Starmer continued: "As this policy states, assessing the public interest is not simply a matter of adding up the number of factors on each side and seeing which side of the scales has the greater number. Each case must be considered on its own facts and its own merits. Prosecutors must decide the importance of each public interest factor in the circumstances of each case and go on to make an overall assessment.

"I also want to make it perfectly clear that this policy does not, in any way, permit euthanasia. The taking of life by another person is murder or manslaughter - which are among the most serious criminal offences.

"I recognise how sensitive this area of law is and I respect the fact that there are many people who hold strong views on assisted suicide. I want to hear those views and that is why I have also launched a public consultation today. By considering as many views as possible, I can produce a final policy which is faithful to both the law and public feeling."

The interim policy can be seen at www.cps.gov.uk and from today the public can feedback their comments directly. The public consultation will be open until 16 December, after which a summary of the consultation responses will be published. The finalised policy will be issued in Spring 2010.

And secondly, what the Scots Lord Advocate had to say. She confirms that the Crown's understanding of the law is consonant with mine:

"The guidance issued by the Director of Public Prosecutions for England and Wales will only apply to cases where an offence of assisting suicide takes place within England and Wales. It will not apply to Scotland.

"The DPP's guidance follows the decision of the House of Lords in the English case of Purdy. This case applies only to England and Wales and to the statutory offence of assisting the suicide of another under section 2 of the Suicide Act 1961. This offence does not apply in Scotland, where, depending on the particular facts and circumstances of the case, the law of homicide may apply.

"The Crown Office and Procurator Fiscal Service will give careful consideration to the implications of the DPP's interim guidance, the outcome of his public consultation and developments in other jurisdictions.

"The Crown recognises the importance of this issue, but any change in the current law related to homicide is properly a matter for the Scottish Parliament."

22 September 2009

“As autumn to winter resigns the Gray year” ...

Wendy was a divine gift. As luck had it, I managed to squeeze into one of the pokier old lecture rooms in Old College on St Andrews Day 2007, when she delivered her “New Agenda for Scotland speech. What do you mean you don’t remember it? Well, admittedly, speech’s rolling prose and themes might have commanded more interest – were it not for the fact that Alexander was befogged in suspicion in the small matter of £950 – and with arachnoid generosity, was blasting at any of her feet which strayed into view. As the beldam styled it, the speech was an attempt to “slay a few sacred cows”. Stilling cheek by jowl with the salivating hacks, however, one got the distinct impression that however showily Alexander sharpened her cleaver, the congregated jouros felt other questions knocking away in their skulls more sharply. Her policy steer was for a “new Scottish constitutional commission” – and given her bovine aspirations – it is perhaps appropriate that the plodding Calman Commission’s report is the blockish fruit of her butcheress impression.

Yet, to all things must come their end, and alas, a good measure of partisan fun was denied the rest of us, when Wendy hung up her blunted cleaver, folded up the gorespattered apron, and cantered back to liberty in June 2008. Sic transit gloria mundi. I don’t believe I’ve heard a peep from her since. Stowing the besmirched getup in a discreet filing cabinet in John Smith House, Scottish Labour tried on some other costumes – before finally settling on a new unmermaidlike figurehead of Iain Gray. Strapping him to their electoral sloop – and hastily navigating away from Alexander’s distinctly turbulent waters – as the Scottish Tory Boy has helpfully reminded us – the good barque Scottish Labour have now voyaged for a whole year under the baleful gaze of Cap’n Gray. And from the rocks, the sinuous sirens call, whither did you voyage? Where have you come?

(Admittedly, I’m not sure casting Angus McLeod as some sort of sea nymph is a terrifically probable exercise. À la Gollum in the Lord of the Rings, I suggest in the filmic rendering, we dab him with a spot of digital paint and the goggling punter won’t be able to discern the difference.) Recall, if you will, Gray’s ciceronian speech at his matriculation ceremony, including the rather curious, proletarianising section in praise of himself, uncorking – and one can’t help but notice, nastily recorking thereafter – a critique enswaddling the Maximum Eck in the apparel of a louche, self-indulgent bourgeois on the make…

"I want to begin by thanking the Scottish Labour staff for organising this election so efficiently, and to thank Cathy and Andy for the way in which the election campaign has been fought. I firmly believe that the best leadership is collective leadership and you have demonstrated over six weeks and 15 hustings why you should and will be a big part of that. I offer my wholehearted congratulations to Johann Lamont on her election as deputy leader and look forward to working with them in moving Labour forward in Scotland.

Thank you above all to the members of this movement who have engaged with the election campaign in greater number and with greater enthusiasm than I thank any of us could have foreseen. Thank you for the trust you have placed in me. This election is the beginning of a new conviction in Scottish Labour - united around our shared values and moving forward with common purpose. Thousands have not only voted, but taken part in hustings and other events during the elections. Some have said that it is the first time in a long time they have had the chance to look the party leadership in the eye and tell them what they think. I promise them it will not be the last. I am heartened by the determination of those party members. We know that this is a difficult time for Labour.

It is sometimes said that Labour has governed Scotland for 50 years. Well I joined the party in a council scheme in a city, Edinburgh, which had been ruled by the Tories for centuries. It did not feel like Labour was in charge.

We won that council and we won that country. We did it by uniting around our core values. We did it by standing shoulder to shoulder, MPs, councillors, trade unionist, party members. We did it by addressing the things that really mattered to the people we sought to serve, and telling them what we wanted to do with conviction in language which made sense to them. It is time to do that again. The cost of living, health services, housing, education, the care of our elderly and disabled, the eradication of poverty, the quality of our local services. That will be our focus. Labour is best when we look outwards and align our values with the people's aspirations. Not just listening but hearing. It is time to do that again. I promised a fresh start. It is time to close the manifesto on which we ought the 2007 election, and begin to write our programme for 2011 and beyond. I will appoint a senior colleague of my shadow cabinet to drive policy development. To work with the policy forum process. To engage early and directly with affiliated trade unions, and with young Labour and Labour students.

They will be charged with reaching out beyond the Labour party to develop policy in line with our values but in partnership with wider Scotland. This will include building on initiatives like our literacy commission, and the wide coalition of support we already have for the right to an apprenticeship for every qualified school leaver. It will also mean defining exactly how we should reform the council tax to make it fairer, while protecting local services. I have been asked, how we respond to the loss of Glasgow East. This is what we do. We embrace the message of that defeat into the heart of our campaign in the forthcoming general election and we write it into every line of our programme for winning in 2011. It will be a programme developed in Scotland, carrying the endorsement of Scottish Conference and the conviction of every party member. It will be a programme which speaks to the concerns and aspirations of Scots.

I want Scottish Labour to be Scotland's Labour Party again. We should be proud of what Labour has achieved. But we must be passionate about what we can do now. Proud of free bus travel for pensioners. But ready now to take steps to give communities the bus services they need. Proud of our action on anti-social behaviour, but ready now to press for jail sentences for those who carry a knife on our streets. Proud of 35,000 apprenticeship places. But ready now to create a guaranteed place for every qualified school leaver. Proud of the Scottish Parliament we delivered. But ready now to develop its powers in the light of the Calman Commission. Our devolved parliament is a powerful instrument for progress, and a powerful devolved parliament is what the people of Scotland want. The Calman Commission is the outstanding achievement of Wendy Alexander's leadership of this party and we will finish its work. Another commission reported last week. Half a million pounds of public money spent on a broadcasting commission. Which concluded that the future of Scottish broadcasting depended on it being part of the UK broadcasting market. Just as Scottish banks benefit form being part of a market of 60 million not 5 million.

Just as Scottish energy companies benefit from being part of a UK-wide grid linked into European markets. Just as our shipyards benefit form access to multi-billion pound MoD contracts for aircraft carriers. Scotland's future lies in using our parliament to leverage those opportunities by raising the education, skills and aspiration of our people. There is no limit to the untapped potential of our people, and no limit to our ambition neither nor anything else which divides us. I started this campaign with a simple statement. I am as Scottish as Alex Salmond. But our story is different.

While Alex Salmond was studying the dismal science - economics - in the academic birthplace of Thatcherism, I was studying natural science in the academic home of the enlightenment. While Alex Salmond was an official in the Scottish office, I was learning to be a teacher in a tough school and a community activist in the biggest council house scheme in Edinburgh. While he moved to the Royal Bank of Scotland I moved to Mozambique where I taught for two years in a country literally fighting for its life. While he spent the eighties and nineties developing the tricks of politics in Westminster, I spent them developing my values working for Oxfam.

In 2001 when he abandoned the Scottish Parliament I served it as minister for social justice and enterprise, transport and lifelong learning, delivering £1bn of housing investment to this city and seeing more Scots enter higher education than ever before.

We don't need a first minister whose pride is putting people down. Scotland needs a first minister whose passion is lifting people up. I am Scottish and my story is a Scottish story. But I am also Labour and my story is a Labour story. Woodrow Wilson said "absolute identity with one's cause is the first and great condition of successful leadership". I was born in the NHS labour created, a child of the health services first decade. I was the first in my family to be able to go to a university, opened up to the likes of me by a Labour government. I was a teacher in schools Labour had made comprehensive and open. For 12 years I campaigned for debt relief, a landmine ban and increased aid - issues Labour brought to the global stage. I was a founder member of the Scottish Parliament Labour created and my name is on the first legislation it ever passed. To be given the chance to serve this movement as leader of Labour in that Scottish Parliament is a precious privilege.

But the real prize we seek together is the opportunity to serve Scotland and make it all that it can be for every one of its citizens. Thank you."

As I prophesied, the salivary glands of the press are dampening in anticipation for 2011. While none of the quillscratchers has prodded the Sclabourites on Curran’s departure and the conspicuous absence of formulated, alternative policy – one can glimpse fleeting motes of that spectre through the dead trees. Still, happy one year anniversary, Mr Gray.

21 September 2009

On arbitrary powers of the Scottish Ministers...

"Turn him to any cause of policy,
The Gordian Knot of it he will unloose,
Familiar as his garter" (Shakespeare Henry V Act 1 Scene 1. 45–47)

“Anger as radical reform of rape laws delayed by a year”, ran the headline in the Sunday Herald yesterday. I suspect people’s general sense is that once the presiding officer has banged his gavel – or the tribunes’ electronic votes form a heavy digital yea pile – in that instant, the law of the land undergoes a metamorphosis. Not so, alas. First, the measure must attain royal assent. And then it is law? Not necessarily. Frequently the wriggling digits of the bureaucratic and ministerial interest snag the process and ministers are solely empowered to bring the legislation into lawful effect, either in whole, or in parts. Betimes, this arrangement can wear the shifty, sweatsome appearance of a suspiciously minded “pocket veto”. Tribunes mistrustful of their leery ministerial masters would be well-advised to put some constraints on their capacity to dawdle with implementation. It takes a workhorse legislator (or one blessed with the low animal cunning to turn to the last section of the would-be enactment) to plod through the whole piece, since questions of commencement in the genre appear as the enactment’s exciting dénouement.

One good example of the range of ways in which draftsmanship can empower – or entangle – the minister are to be found in the freshly-laundered Climate Change (Scotland) Act 2009, which holds in its centennial section that:

100 Short title and commencement
(1) This Act may be cited as the Climate Change (Scotland) Act 2009.
(2) This Act (other than this section and sections 27 to 32, 56, 70 and 96) comes into force on such day (in the case of sections 44 to 52, being no later than 18 months after the day on which the Bill for this Act receives Royal Assent) as the Scottish Ministers may, by order, appoint.
(3) Sections 27 to 32 and 56 come into force in accordance with section 26.
(4) Section 70 comes into force on the day after the Bill for this Act receives Royal Assent.
(5) Different days may, under subsection (2), be appointed for different purposes.

Under section 100(2), ministers are graced with only a year and a half to bring into effect the sections on the new “Duties of Public Bodies Relating to Climate Change” (s44 – 52), while they operate out of time, free to bring into effect by fiat (only constrained by legitimate politic badgering). Compare the complained of section in the briefer Act mentioned in the Sunday Herald article:

62 Short title and commencement
(1) This Act may be cited as the Sexual Offences (Scotland) Act 2009.
(2) This Act (other than sections 1(4), 17(3), 58 to 60 and this section) comes into force in accordance with provision made by the Scottish Ministers by order.
As you’ll notice, once again the parliament (in its wisdom) empowers the minister basically to do has he or she pleases. And so it seems, MacAskill the Goldfish Orator has decided to do. While the Sexual Offences (Scotland) Act 2009 received its queenly nod over the summer, a year will supervene before the minister’s say-so will pop the legislative cork and free the bottled spider. Folk aren’t happy.

A Scottish Government spokesman is quoted, saying: “The act is expected to come into force later next year. We are working to ensure that the police, Crown Office and Scottish Court Service staff are fully trained when the act is implemented and the necessary systems are in place.”
Baillie Bill Aitken is quoted finding “this astonishing. The justice committee spent a long time and considerable effort to assist the victims of sexual assault. I’m disappointed there is to be this quite unnecessary delay. The preparation should have been in hand a year ago.”

While I can see that a new piece of governing legislation will rummage and disorder the sack of traditional protocol – the process of legislative reform in this area has taken fatuously long. Remember, the origins of the 2009 Act are in 2004. When she was justice secretary, Cathy Jamieson initially denied the need for reform of the laws on rape – and apparently did not regard the Scots legal phenomenon of the unrapeable man problematic. The Executive’s position changed when ex-Maximum McConnell directed the Scottish Law Commission to look into the area in the summer of 2004 - now more than five years ago. While I’m broadly supportive of many of the purposes of the Act, the Commission’s influence in this case has precisely decelerated the reform process. From the 2004 starting point, its final report was published in December 2007. Needless research can be a hideous drag on reform, particularly one governed primarily by normative, ethical judgements rather than knotty, Gordian questions of legal technicality.

Until we cry out – hold enough! Lay on. Get to it. If we don't, the bureaucratic bounty will bob along sans objection, till the day of ressurection. In this instance, informed by this sense that the whole process of reform in this area has been ludicrously and purposelessly extended, I am in some sympathy with the parliamentary complainers. Smug, rationalising ideas that we must have all or nothing’s law, that the Law Commission ought to show off by generating bumper reform, rather than immediately acting to fix obvious anomalies – has resulted in legislative bloat and clotting. If we regard the previous law as unjust, if we believe that non-recognition of underlying parity of victimisation across genders and different species of rape is a form of conceptual violence against the subject, this lawmaking and lawyerly flopping about in the formulation and promulgation of the reforming Act becomes not simply self-indulgent, but actively grotesque. Fostering and perpetuating old and rejected injustices, the claims of equal victimisation have not been taken sufficiently seriously to warrant brisk, rapidly reforming moves. Either by Parliament, Law Commission or Ministers.

Equally, oh supine tribunes, if you are so terrifically keen to see your laws smack the realm about quickly – for heavens sake, employ your powers of oversight, dare to drag your eyes to the final section of your Bills and insist on short terms of commencement and a constraint on more or less arbitrary ministerial power. It is all very well to complain after the event, but you made it possible, dearies. Bully for you.

18 September 2009

Clydesideism & the Glasgow Airport Rail Link (RIP) ...

One of the largely unsung stories of the 2007 Holyrood Election is the idea that on one level, it represented a national revolt against the hegemonic West Coast, shipyard-nationalism represented by the Scottish Labour Party. We’ve discussed before the ways in which the installation of Salmond and Shoal has transformed and variegated the sound of government. Its accents trill across the Scottish spectrum, gallivanting from highlands to low. The point is not that the previous administrations eloquted in one voice – that is demonstrably false. However, my point is that now it would be difficult to thumb the Scottish Government for a limited, dominating association with any one accented locale. Not so, I humbly submit, before 2007.

Interested academics, primarily working in the representative science of Scottish literature, have described this historically dominant phenomenon as “Clydesideism”. Writing in the late 1990s, Christopher White argued that
“in the last three decades, and especially since 1970, there has been what one might call a ‘hegemonic shift’, so much so that the city of Glasgow, and the West of Scotland more generally, are accused of exerting an unfair dominance, where representations of “Scottishness” and Scotland are concerned.”

In the 1980s, another scholar of Scottish literature, Professor Cairns Craig, expressed concerns that that,
“what is worrying in the contemporary situation is the way that the death throes of industrial West-Central Scotland have become the touchstone of authenticity for our culture”.

This is part of the pity that the de-Clydesideing theme – or at least the result – of the 2007 election has not been more closely explored. While among pundits, it was styled an end to unmitigated Labour dominance in Scotland, unfortunately this insight was not followed, with hot feet, by the recognition that it also represented an ousting and diversification of constituency, voice and character of the national government. While arguably, the Labour-Liberal executives largely remained a bastion of the monological Clydeside nationalism narrated in the 1980s and 1990s, the tide has turned. Labour’s dis-empowerment, in part, correlates to a diminution in the representative and substantive powers of their respective constituencies. Government, the SNP prove, need not be the preserve of ex-Glasgow city councillors, awaiting the award of their constituency Galero, to be awarded on basis of the hallowed principle of Buggins’ Turn. This shift naturally has its opportunities and its challenges, both for the rejected party, and for the incomers of the present and the challengers of the future. Indeed, although this would be very difficult to decisively prove, I’d hazard a guess that the (unpredicted, implicit and unconscious) 2007 change in Scotland’s governmental voice at least contributes to the SNP’s subsequently swelling popularity. Due to the diversity in tone, the ambivalences the “periphery” might have felt in the past towards the Clydeside “centre” need not obtain.

Meanwhile, in opposition, despite Iain Gray’s bruxistic East Coast exhalations, Labour begins to look and sound more and more like an embittered rump, summoning up wistful remembrances of things past. It is partly this which made the Glasgow East election such a shock to commentating media – since in representational terms Glaswegians unfailingly, always elect their monkeys in red rosettes. Glasgow = Labour. End of story. Past exceptions and factual challenges are quietly ignored. The dominant representation festers and persists.

I don’t propose to discuss in much detail the politics of John Swinney’s jettisoning railway flotsam, and denying travellers to Glasgow airport the pleasure to stepping into another metal coffin, having just evacuated themselves from another. Rather, I merely wanted to suggest that the reaction and vocabulary of political opposition must be coloured by the themes I meandered through above. Swinney Denies Anti-Glasgow BiasOutrage as Swinney Swings his Budget Axe on GlasgowQuoth Steven Purcell, it represented a “dagger in the heart of the city” a “clear anti-Glasgow agenda”. While this may resonate with constituents with a particular interest, I’d be terrifically surprised if most of the population found the figure of a hard-done-by Glasgow terribly charismatic. Contrawise, I imagine it looms large in the Labour imagination – indeed, potentially too large, serving only to emphasise the party as a peddler of a particular brand of politics and Scottishness. While I don’t begrudge Purcell a good complain about it – if Labour are determined to make the question a strong central plank of their argument against the budget – that may be far more perilous if revitalising their electoral performance is based on any “50 State” style Scottish strategy. That will depend on how seriously one takes the thesis that Scotland at large, by electing the SNP, conducted a revolution against remorseless Clydesideism - in short, whether one regards the limits of Labour's geographic appeal as a problem which the party's dominant representation contributes to.

Alternatively, of course, they may wish simply to pander to their base, becoming more concentrated and sour, dislodged waifs who still have still, still learnt nothing and forgiven nothing.

16 September 2009

In praise of ... tholing your assize

Usually, journalists’ attempts to relate issues which acutely involve the differences in the U.K. legal systems make me want to tug out my hair in clumps. Their tales muddled and muddling, one needn’t be a Scots legal nationalist to feel led astray under the tutelage of these media magisters juris. Misinformation generates false expectations (for example, notions that one has extensive rights to be tried by a jury), perpetuates misunderstandings of socially empowered systems and is, in general, not on.

Sometimes, these differences between our systems are profound, one potentially providing real lessons for the others and furnishing the argumentative with an accessible critique of unchewed orthodoxies. As Alex Massie has argued, the fact the assisting suicide as such is not illegal in Scotland rebuts any lazy case that simple repeal of the 1961 Suicide Act will result in a slew of grannies receiving single-ticket holidays to Switzerland.
One area which the last week’s news which I wished to nudge under a blawgish lens is the information that three defendants - Ibrahim Savant, Arafat Waheed Khan, and Waheed Zaman - accused of conspiring to murder by means of combusting airlines will now face a third retrial on the conspiracy to murder charge.

Twenty-four jurors have already sat and listened to the evidence against the accused. Assuming that the announced intentions of the Department of Public Prosecution are carried out, that number shall rise to thirty-six shortly. So, why a retrial? The pat phrase is “the jury failed to reach a verdict”. What does this mean? In England and Wales, previously, verdicts required juror unanimity. These days, they work on the principle of majority verdicts – meaning that at least ten of the twelve jurors are willing to pronounce guilty or not guilty. For example, a trial in which nine were for acquittal and three for conviction would fail to reach a verdict, and the accused could be retried. The same would be true if the balance was in favour of conviction.

With this, we can strongly contrast the rules in Scotland where the three men discussed in the Telegraph would face no retrial – and where the 9-3 juror division imagined above (if proportionally expanded) would be sufficient to acquit the accused. In Scotland, we empanel juries of 15 persons, who convict on the basis of a simple majority of eight – any number short of this simply resulting in an acquittal. Whether the jury is divided on whether the accused is not guilty or the indictment is not proven has no differential impact on the disposal. The accused is free to go. Explanations for this difference tend to point to the differences in English and Welsh and Scots rules of evidence. As I’ve discussed in the particular circumstances of the soon-to-be case of H.M. Advocate v. Thomas Sheridan, in Scotland corroborated evidence is a legal necessity, while my understanding of the English position is that now, no such evidentiary strictures apply. Due to this differential in minimal standards of proof, the proposition runs, the English system requires further safeguards in what counts as a justifiable decision of the jury. A simple majority – and even for some old crustaceans, the phenomenon of 10/12 verdicts – would not be able to provide such a check. The symmetrical contention is that corroboration furnishes such a check in Scotland, and hence, decisions taken remain justifiable which are reached on the narrowest possible basis of eight jurors for conviction, seven jurors adamantly against.

If you hear about retrials in the Scottish context, these will typically been cases where a convicted person successfully appeals on the basis that the process by which they were convicted miscarried justice. In those circumstances, the appeal court can empower the Crown to instigate fresh proceedings. One example of this process is the case of Galbraith v. H.M. Advocate, which clarified in some measure how psychological insights into persistent spousal abuse affects the criminal responsibility of an individual – in this case Kim Galbraith – who kills their abuser. Moreover, the position of double jeopardy – or in the Scots legal terminology – tholing your assize - now differs across the British legal systems. In Scotland, the rule against multiple trials persists – despite arguments and objections by the Scots Tories – while in England, re-trying an acquittal is now a possibility. The options are explored in a lengthier and more scholarly way by the Scottish Law Commission, whose report on the subject was published at the beginning of 2009. How the Scottish Government responds remains to be seen.

For myself, it is difficult to avoid the impression that multiple retrials are a way for multiple prosecution chomps at low-hanging fruit – and a concerning infinite regress of legal actions till a jury produces the verdict the prosecution desires. In particular, the English phenomenon of a retrial following nine jurors voting to acquit and three jurors voting to convict seems to me highly problematic, whatever the niceties and evidentiary safeguards which are said to mandate it. Equally, for other incidental participants in the trial process, I’m sure that being called, then recalled and recalled again to relate the same evidence must be dreary – and in some cases, emotionally quite oppressive. Of course, the DPP need not determine that a case should be retried – but as I’ve argued before about the Lord Advocate and our own Procurator Fiscal service, whether or not a particular disposal seems merciful, just and proper, we should not have to rely on the discretionary good-will of a prosecutor if the end sought is basically just. That a good prosecutor makes a just decision is in an individual case, a cause of celebration, more broadly, that good prosecutor is the enemy of rigorous reform, precisely because he or she blunts the consciousness of the arbitrariness and tyranny of the office by their good offices.

While there are undoubtedly questions about new evidence furnishing prosecutors with new evidence about past trials, which undoubtedly tempt lawmakers to permit re-prosecution, even after an acquittal - the untholable assize represented by extensive prosecution and re-prosecution does not seem to me to be to the benefit of anyone. Legal processes should not come with a "reload" button, resurrecting the factual contentions of a failed case, especially when the prosecuting state has an exclusive clutch on the controls.

14 September 2009

Dispatches from Glasgow North East...

I’m sure in the course of the long, trudging campaign, the candidates for the Westminster Parliamentary seat of Glasgow North East experienced a flourish of relief as one Mr Kenneth MacAskill put on his red suit, donned an archery-target waist coat and proclaimed the sovereignty of mercy in Scotland. Cue furore, heated. With a nose for gluing the stories of the moment together, Scottish Unionist pointed out the less than consonant character of the SNP candidate David Kerr’s positions once juxtaposed.

On the 21st, Kerr argued:

“I don’t believe that Al Megrahi should have been released. He was convicted of murdering 270 people so I believe justice would have been best served if he had remained in the care of the Scottish Prison Service.”

By Tuesday 25 August, this had amended itself to the crisper: “The Justice Secretary took the right decision, and above all he took it for the right reasons.”

Obviously, don’t lets be too devilishly insistent that a soul must adhere to its past sins, when it yearns for repentance. Its alright for folk to change their mind. Indeed, the polling around the whole brouhaha seems to indicate that Kerr's developing sense of the rightness and wrongness of the move mirrors that of other Scots. There is, however, a wider point. Do we really believe Malcolm Chisholm was the only opponent of this measure who bums the Labour benches? Given the more divided general opinion in the population at large and among Labour member, this seems unlikely. Equally, how plausible is it that all 47 SNP members thought that in his trundle across the tightrope before him, MacAskill balanced himself unerringly correctly? How many in both tribes swallowed their private sentiments, donned the political war paint and marched for the chief? I’d be confident that the count of such tribesmen and women who made primary their party political calculations must at least amount to a decent clutch. So I agree, there is something that smells distinctly implausible about the neatness of these divisions – which might make us look on the apparent transformation of Kerr’s views with a critical eye.

Indeed, as the recess recedes, I anticipate a spidery battery of eyes will be shifting again to the Glasgow North East by-election. And on this point, via a fellow peat worrier – we’re a close fraternity and sorority – I have a few dispatches from the field by way of an informed source within the campaign.

I’m totally unfamiliar with the constituency myself – hence what follows it a bit of third-hand repetition. It does give an indicative glimpse into the cognitive processes churning away behind the scenes, however. It is anticipated that the writ will be moved sharpish when Westminster resurrects itself, resulting in a polling day of around the 12th of November*. On the campaign itself, apparently Kerr’s going down a storm among the more conservative, religious populous of the area – but there’s a fly in the proverbial ointment. In the more liberal parts of the constituency, which on the campaign intelligence, apparently includes Dennistoun, disquiet rumbles over precisely the same issues which might coax others into Kerr’s corner.

Along the lines of my argument, which insists that religious opinions are fair game when they inform political choices, it seems that this section of the populace may find the ominous Latin of Opus Dei a challenge to overcome, when mulling over where to put their enfranchised ‘x’s. As a consequence, I understand that the candidate’s messages are being finessed depending on the setting as an attempt to overcome the difficulties presented by the trumpet lobby of press coverage at the inauguration of the campaign. I’m a bit sceptical of all this sort of talk myself, including the happy but textureless labelling of places religious areas and whatnot. Indeed, I’d have thought the surest way these days not to communicate with your electorate is to talk to local clergy. Then again, its not just who can vote, but who will vote – and on this point, my own youthful, godless existence may not be typical of our greying electoral enthusiasts.

At any rate, these personal caveats aside, I thought you might be curious about the campaign related scuttlebutt…

* As the estimable Monsieur Burton pointed out in the comments below, the 8th of November poll date which I originally mentioned falls, as any lackadaisical examination would suggest, on Sunday. I suspect Monty's moles are stabbing far closer to the mark with their anticipation of a Thursday the 12th of November date - so have slyly amended the electronic record accordingly.

12 September 2009

Time for a Scottish political drama?

Jubilantly, this week had me expelling a particularly extensive project from my proverbial corner of the professional peat hags. My relief is palpable. And then, like an anvil lobbed from a tall building, the weight of inactivity hits you. After life’s fitful fever, he sleeps well.

What to do now, I agonised? Despairing of the bare walls of my garret providing any inspiration, I stalked into the Glaswegian streets, at last, after much travailing, resting my tired feet in a hostelry in that city’s western district. And then, as my Deuchars ebbed to a half-draught, the divine Muse Calliope slapped my phizog with her laurel leaf of inspiration.

We’re dominated by American political films, the hero-priest of presidency cults, and homicidal alien forces whose primary mission seems to be flattening the White House. Of course, the British got there first, giving Washington and its presidential bungalow a good singeing during the War of 1812. Its tempting to analyse the persisting re-enactment of this fiery tableau – substituting googly-eyed extraterrestrials for the redcoats – as the fell spectre of a vengeful George III exhaled from the bilious fog of the collective American unconscious, come back to punish the errant nose-thumbing of the States’ founding sons. And after all – isn’t the widely mooted American glee and self-subordination to the swank of “British” accents not a form of defensive sublimation attempting to erase this sweating folk memory and the vestigial terror of the misbehaving child with an overcoming and overstated scoosh and gush of unmerited admiration?

But my primary point concerned political dramas. Obviously, dominating the firmament is the West Wing. For myself, a continuing favourite is the House of Cards trilogy. As an aficionado of the wondrous malice of Jacobean tragedy, Andrew Davies managed to massage the themes and the atmosphere into a more modern setting tremendously well. How some keen-sighted producer found in Michael Dobbs’ novel the germ of the television programme, I have no idea. I’ve rarely encountered prose more lumpen – and female characters more obviously and ludicrously scripted from a sweaty-palmed, sausage-fingered male perspective. Nor can Dobbs be credited with Francis Urqhart’s much quoted saw, or the splendidly creepy henchman that is Colin Jeavons’ Tim Stamper, another brace of owings to the estimable Davies. For those who have not yet encountered it, I urgently encourage you to seek it out.

At the time, though I’ve not revisited it, I enjoyed the Deal (2003). Partly, this comes from the simple novelty of seeing a system and a culture with which you are relatively familiar dramatised. I’m sure other Scots experience a similar frisson at the limited number of popular dramatisations in a Scottish setting, Ian Rankin's Rebus, Taggart et al. In last night’s episode of the former, I noticed that one of the characters was an MSP – I presume a Tory – and along with the nudgings of the Muse, it got me to wondering – what might a fictionalised Scottish parliamentary drama be like? Would it work, could it? I’ve read Boiling a Frog by Christopher Brookmyre, which trades in the imaginative space of a devolved Scotland and the Parliament, but wasn’t wholly convinced by it.

Perhaps a phantasmal version of the Foulkes to Secretary-General spangly fairy story I suggested earlier in the week?

Shambling Gurn: the George Foulkes Story (2012) is uplifting tale of a talentless soak who accidentally shuffles, like a confused extra, into the eye of the camera… From the voice of one crying for devolution from the Westminster wilderness to a triumphal entry to his parliament in 2007, Foulkes’ story is Scotland’s story, his face the leathery map of his land, thirsty for freedom. The lines slowly folding his august, statsman’s brow telling of his people’s travails and torments on their cobbled path to devolution...

My bladder is already pinching with excitement and anticipation! Moreover, watching Rebus yesterday, I think we have a strong presumptive candidate to play Georgie, in fellow Lothians look-alike, Ken Stott...

9 September 2009

Foulkes for Secretary-General!

Screaming Lord Foulkes has not graced my pixels here for a fine roll of weeks. Thank the Scotsman for catapulting the corpulent cretin back into the monitor-glare of electronic examination. In what must be the most fatheaded non-story to adorn the learned journal’s pages, such is the professional pride of the author that the essay remains unattributed. The crowning turd is the headline, which invites the guileless reader to imagine that a “UN role considered for Salmond”, the Scotsman stupendously report that:

“The National Conversation's document on foreign affairs is a ‘blueprint’ for First Minister Alex Salmond to be made secretary-general of the United Nations, it has been claimed.”

Oh ho. That mustelid formulation at the end is enough to make your musk glands tighten with suspicion – who claimed, we cry, who claimed? Enter Foulkes, wet. And he's on vintage form. The heavy-pated Lothians MSP objects to the following part of the fifth section of the SNP government’s Europe and Foreign Affairs: Taking forward our National Conversation report, published online yesterday.

International Organisations

5.7. An independent Scotland would be recognised as a state in its own right by the international community and would become a full member of the United Nations and other international bodies, such as the Commonwealth, the World Health Organization, the Organisation for Economic Co-operation and Development and the World Trade Organisation. Both in these arenas and generally it would be able to develop its own foreign policy to promote Scotland's interests internationally, and engage with other states as an equal partner.

5.8. Small countries can and do take lead roles in international organisations and policy development. Key positions within the United Nations including that of Secretary-General are often filled by individuals from smaller nations. Small countries such as Sweden, New Zealand, Switzerland and Finland have all made significant global contributions to security, peace and reconciliation initiatives. New Zealand, for example, hosted a major conference on cluster munitions as the part of the Oslo Process. Following this, in May 2008 the Oslo Process culminated in the successful conclusion of a new international treaty banning cluster munitions that cause unacceptable harm to civilians, with New Zealand chairing the key discussions on the definitions of weapons to be banned. With the 'Edinburgh Conversations' in the 1980s, Scotland has already played host to efforts to promote dialogue and keep open channels of communication. Independence would offer a clearer opportunity for Scotland to make this kind of contribution.

Seems a fairly bald statements of the international correlatives of a recognised separately sovereign Scottish state, no? Not according to the Natsmeller Pursuivant, who distinctly smells a Salmond, attempting to bounce on its belly upstream to a swanky, international retirement. No phase as a dismal, unshaven backbencher for him (pace McConnell), according to Foulkes. No, no – Ban Ki-Moon’s job is in the estimable Maximum Eck’s rheumy eye, chops are a’slavering, and here I quote the civic leader, lest any droplet of his wisdom be lost in translation -

“Mr Salmond's ego is so huge that you can imagine this section was drafted by him in the vain hope he might be able to take such a role,” Lord Foulkes said.

“He is the only person in the Scottish Government who could imagine himself in such a position.”

And he added: “It is slightly ironic that a man who has wanted to break up a united nation his whole political life has ambitions to become head of the United Nations.”

So the “considerer” from the Scotsman headline is … er … just Georgie Porgie. Personally, I say poo and tish to Foulkes’ self-effacing ways! After all, is he not a stentorian senior statesman, heavy with statecraft, bloated with acumen? Subtle, politic, charming, graceful? Well-knowing his many virtues, does this reasoned critique of the Maximum Eck not imply, on an unconscious level, his own yearning for further honour and greater planetary service? If he will not bring himself to the forefront, others must cajole and prod. Let this be the first whisper of the gathering roar: The world deserves Lord George Foulkes, Secretary General – an independent Scotland’s first gift to humanity!