The Gray who stole Christmas!

What sort of wicked pantomime villain would you have to be to cruelly mock the sartorially pulpsome Salmond for this splendid blue capello romano hat? Or demand that the First Minister live up to the dignity of his office by assuming an air of senatorial steeliness whenever he is pictured in public, clutching a humble Tunnock's tea cake? Speaking to the Scotsman the reliably sour LOLITSP ("Leader of Labour in the Scottish Parliament"), Iain Gray, scorned the Salmond Saturno and the Eckly "cookie monster" aspect, arguing that...

"... what I think the Scottish people don't need at a time like this is a politician like Alex for whom it sometimes seems that photo opportunities in silly hats are more important than taking the serious and hard decisions that are needed for Scotland..."

He then added, without any apparent trace of irony....

“This is an election campaign in a time of anxiety and people need someone who is serious, a serious politician and serious about their concerns.”

A sure-fire victorious stratagem, that. Pledge to run a miserablist hatless teacakeless administration, with nary a flutter of glee, unremittingly devoid of frivolous well-timed jokes or alleviating japes. I suppose it is traditional at Christmas time to supplement holly-garlanded cheerfulness and a cacophony of celebratory bells with the dud notes of relentless gripes and the brooding presences of life's scapegraces and malcontents. In a previous spot on this blog, Iain Gray was identified as the portrait-basis for an Edinburgh pub's representation of Robert Louis Stevenson's Mr Hyde.  Alternatively, we might go further back in time to look for Gray's anticipators, and the ideal type of Charles Dickens' Ebenezer Scrooge. I struck me that this description of the soor ploom moneylender from his (1842) novella, A Christmas Carol, rather neatly captures Gray's own angular, unrelenting negativity...

"...Hard and sharp as flint, from which no steel had ever struck out generous fire; secret and self-contained, and solitary as an oyster. The cold within him froze his old features, nipped his pointed nose, shrivelled his cheek, stiffened his gait; made his eyes red, his thin lips blue; and spoke out shrewdly in his grating voice. A frosty rime was on his head, and on his eyebrows, and his wiry chin. He carried his own low temperature always about with him; he iced his office in the dog-days; and didn't thaw it one degree at Christmas..."

By contrast, in the peat worrier household, our good cheer overfloweth. Amid these snow-addled and pudding wine soaked days, it struck me that Gray not only echoes the most famous Christmas sourpus (assuming we exclude good King Herod) but if you dyed Gray's heifer-slurped hairdo a vivid lodgepole pine green, he's also the dead spit of Dr Seuss' eponymous Yuletide-swaggling anti-hero Mr Grinch.  After these glacial reflections, and bitter pill treats, I thought perhaps a singsong was in order. Merry Christmas Iain Gray! All together now...

♫ You're A Mean One, Mr Gray ♫

You're a mean one, Mr. Gray
You really are a heel
You're as cuddly as a cactus
You're as charming as an eel
Mr. Gray.

You're a bad banana
With a greasy black peel.

You're a monster, Mr. Gray
Your heart's an empty hole
Your brain is full of spiders
You've got garlic in your soul
Mr. Gray.

I wouldn't touch you, with a
thirty-nine-and-a-half foot pole.

You're a vile one, Mr. Gray
You have termites in your smile
You have all the tender sweetness
Of a seasick crocodile.
Mr. Gray.

Given the choice between the two of you
I'd take the seasick crocodile.

You're a foul one, Mr. Gray
You're a nasty, wasty skunk
Your heart is full of unwashed socks
Your soul is full of gunk.
Mr. Gray.

The three words that best describe you
Are as follows
And I quote: "Stink. Stank. Stunk."

You're a rotter, Mr. Gray
You're the king of sinful sots
Your heart's a dead tomato splot
With moldy purple spots
Mr. Gray.

Your soul is an appalling dump heap
Overflowing with the most disgraceful assortment
Of deplorable rubbish imaginable
Mangled up in tangled up knots.

You nauseate me, Mr. Gray
With a nauseous super-naus
You're a crooked jerky jockey
And you drive a crooked horse
Mr. Gray.

You're a three decker sauerkraut and toadstool sandwich.
With arsenic sauce.

On the perjuries of a satsuma socialist...

The Auld, Auld Triangle
~ Brendan Behan(ish)

In the women's prison

There are seventy women

And I wish it was with them

That I did dwell

Then my pubic triangle could go jingle-jangle

All along the banks of their birthing canals.

After he had been beheaded on her husband's order, Fulvia, wife of Mark Anthony, apparently tugged the lolling tongue from Cicero's mouth and pricked the flaccid, silenced organ with a hairpin. No such hideous muting ritual for Tommy Sheridan, but yesterday's guilty verdict on five of six perjury clauses has left this Satsuma Cicero comprehensively peeled, pith, peel - and pulped.  For myself, I don't give a fig about swinging. Indeed, the very thought of any penetrative vivacity involving Ms Khan - wherever, whenever, with whomever - puts a tackety boot of lurching sickliness into my gut. And the process?

Law's great brutality, and in many respects, its great achievement, is its artificial finality. Judge and jury cannot shrug. They can fail to be convinced, but they cannot avoid making a decision. Judgements long deferred becomes a judgment finalised. Uncertainties collapse. Real world cares, their hearsay and uncorroborated truths - all poised equivocations are obliterated by the unavoidable side-taking of a verdict. Nobody paying attention could miss the sudden shift in mood and tone yesterday, from contempt-of-court fearing balance to wholesale condemnation.  As I argued before the jury delivered their majority verdict yesterday, its important to recognise the gap between truth and criminal law's instruments - narrow charges, limited facts, much of the story left unsaid, significant evidence left out, whether tactically or due to the law of evidence. Trials do not tell the whole story.  As the Advocate-Depute Alex Prentice QC said to the jury in his summing up, dismissing much of the defence case as "irrelevant", "this is not a public inquiry, it is a criminal trial". Despite my consciousness-warping legal education, I'm not arguing that Sherry shouldn't have made this stoutly "irrelevant" alternative case, articulating his arguments according to his own political lights.  Subverting the polite norms of the system, discordantly refusing to submit to the ruling spirit of your subjection, is calculated to appeal to me.  However, in the final analysis, Sheridan's attempts to redefine the terms of his trial failed - and failed much more profoundly than (I think almost everyone) anticipated.

Much has been made of the suggestion that Sheridan was somehow unfairly singled out. Why a prosecution in this case and not in others? Why do other civil actions not give rise to parallel Crown curiosity, investigation? On the second point, it is worth bearing in mind that few civil matters involve such clear oath-bound divergences in the evidence lead. University of Edinburgh criminal law scholar, James Chalmers, appealed to metaphors of the armoury, distinguishing perjury as a shield from perjury as a sword. If we assume that yesterday's verdict is just - then we have a particularly extreme case, where the  whole action was predicated on a fraud on the court.  Some have argued that perjury in our criminal courts is endemic. Why so few prosecutions? Or more pointedly, why this prosecution? On a few extreme accounts of the case I encountered over the last day, any discretionary application of the law is itself imagined as problemic. If that's so, then Scotland and many other countries have pervasively mischievious systems of prosecution, hardly limited to Sheridan. I've blogged several times this year about the Scottish Parliament's response to some difficulty drafting a general law capturing whatever specific evil our tribunes want punished. Faced with definitional challenges, a frequent response is to distinguish the law from its application and broadly-drafted new crimes are simply passed - enlarging prosecutorial discretion and relying on procurators fiscal to identify the cases that "really" deserve to be pursued. This is certainly problematic. However, critically, discretion doesn't evaporate even with clearly defined Scottish crimes. We can and probably ought to be suspicious (or at the very least critical and questioning) about the organisational values which inform discretionary application of the law "in the public interest". However, we're simply slurping moonshine if we fail to realise that this cannot be a question of whether prosecutions are discretionary or not - but how discretion is used.

In which context, the question becomes - why shouldn't Sheridan have been investigated and prosecuted? If I embezzled £200,000 from my employers, I think few of us would think such a fraud was minor. You might argue that Sheridan's primary purpose was not venal cash-grabbing but was bound up with the bubble reputation and the scabrous nature of the publication he opposed. That I could believe, at least somewhat. However, such overdetermined crimes of dishonesty are hardly without precedent. Think of those cases of fraud where the cheat accumulates vast vaults of cash in their attics or cellars - ill-gotten gains unspent - whose dishonesty is driven by the thrill of cheating their employers or some sort of triumphant ressentiment, rather than explicit avarice. Are we arguing that one should only be investigated and indicted if you commit your crime like a good wealth-maximising monadic individual and spent your gains on a louche bourgeois lifestyle? Are we suggesting that false accounting should be prosecuted, but those who make dishonest use of our formal justice systems for gain hardly trouble the conscience? Equally, if we follow the reasoning through and demand all perjurers should be prosecuted - that hardly exculpates the Satsuma Socialist of his perjuries, does it? Those entertaining doubts about the justness of putting these accusations before a jury to determine have other questions they might ask themselves. If you believe Tommy Sheridan lied in court, thereby accessing its institutional power and deploying that power against a dislikeable opponent in News International, are you arguing that the Crown should ask itself were the lies told in a case involving a moral or immoral opponent before pressing charges? I'd be interested to hear that argument justified, if we generalise its significance beyond the eminence grise of Rupert Murdoch. For my part, I find all of these arguments deeply unconvincing. Then again, I would say that - having imbibed a good deal of bourgeois legal ideology.

Still others have invoked the spectres of other guilty men, who do not feel the wroth and rack and ruin for their substantial misdeeds in life, while Sheridan careens into oblivion. Proportionate, fair? Perhaps not, but again, this is hardly an active exculpation of Tommy's wilful misdeeds, is it? To be quite clear, I think proportion matters and we should be icily clear with ourselves about the vital importance of not collapsing our values into legal values by identifying legal guilt with guilt, blameworthiness and immorality per se. There are plenty of smooth besuited villains who are convicted of nothing and yet who warrant glacial contempt, who live within the law and yet live profoundly immoral, contemptible existences. In all of this, we should bear in mind the limits of the law's stark verdicts and the gap which separates it and ought to separate it from reflective, reflexive grey-shade tribunal of our own consciences.

On both registers, it seems to me that Mr Sheridan was guilty as sin and reaps a ruinous harvest for it. This is sorely to be lamented. The civil appeal in the Court of Session was sisted pending the outcome of yesterday's criminal case against Sheridan. He hasn't seen a penny of the £200,000 he was awarded at the end of the 2006 defamation trial. I would not wish to pre-judge their Lordships' analysis, but it is an old legal maxim that no soul should be permitted to benefit from his own wrongs.  To the obvious personal wreck and the political collapse - in the New Year we will likely add financial ruin. I also understand that Mr Sheridan had been reading for a law degree. I've no idea if he completed that endeavour - however, resurrection as any sort of legal professional is now also impossible. The Satsuma Cicero's last case. This whole affair is an unnecessary gruesome catastrophe that squandered the possibilities of a better history. I'm reminded of  a quotation from Voltaire, which seems apt here:

“I have never been ruined but twice: once when I lost a lawsuit, and once when I won one.”

 

Satsuma Cicero says his final word...

I've no idea if Tommy Sheridan opened his final peroration to the jury this morning with Jonathan Watson's impression "brethren, cistern".  Whatever he said, today the Satsuma Cicero will be offering the fourteen folk in the box his final account of himself - his last opportunity to influence the outcome of his case. In the last days, there has been much-headlined dropping of charges against him. The Crown having declined to press the prosecution against her to a verdict, Sheridan's Satsuma Spouse has now been acquitted on all counts. Unless you keep a copy of the indictment and a pair of scissors to hand - you may be befuddled, lost and confused about which allegations remain outstanding, which were dropped by the Crown due to evidential requirements of corroboration - and which charges were amended, given those selfsame Scottish corroboration rules and the limits of the oral evidence presented to the (overwhelmingly female) jury. As ever, most of the interesting things which one might say about the case are ruled out by our contempt of court laws. Circumspection is called for. As such, I wanted to furnish you with a link or two which might afford an insight into the jury's deliberations over the next day or two. Firstly, here is the text of the final indictment against Tommy Sheridan, courtesy of James Doleman.  You can compare this text with the charges levelled against the Satsuma Socialist (or as he is styled in some quarters, the Govan Bigfoot) at the outset of proceedings:

THOMAS SHERIDAN, born 7 March 1964, whose domicile of citation has been specified as ****** you are indicted at the instance of The Right Honourable ELISH ANGIOLINI, Queen's Counsel, Her Majesty's Advocate, and the charges against you are that

(2) on 21 July 2 In 2006 at the Court of Session, Parliament House, Parliament Square, Edinburgh you THOMAS SHERIDAN being affirmed as a witness in a civil jury trial of an action for defamation then proceeding there at your instance against the News Group Newspapers Limited, 124 Portman Street, Kinning Park, Glasgow as publishers of the News of the World newspaper did falsely depone: -

(a) that at a meeting of the Executive Committee of the Scottish Socialist Party held on 9 November 2004 at 70 Stanley Street, Glasgow you had not admitted you had attended Cupid’s Healthclub, 13-17 Sutherland Street, Swinton, Manchester known as Cupid’s on two occasions in 1996 and 2002 and that you had not admitted that you attended there with Anvar Begum Khan c/o Lothian and Borders Police, Police Headquarters, Fettes Avenue, Edinburgh.

(b) that at said meeting on 9 November 2004 Alan William McCombes and Keith Robert Baldassara, both c/o Lothian and Borders Police, Police Headquarters, Fettes Avenue, Edinburgh did not state that they had previously raised the issue with you of your visits to a sex club in Manchester and that you had admitted to them that it was true;

c) that at said meeting you denied having visited a swingers’ club in Manchester;

(m) that you had not attended said Cupid’s in Manchester along with Andrew McFarlane, Gary Clark, Anvar Begum Khan and Katrine Trolle all c/o Lothian and Borders Police, Police Headquarters, Fettes Avenue, Edinburgh towards the end of 2001, or had ever visited a swingers’ club;

(n) that you had an affair with said Anvar Begum Khan in late 1992 for six months only and that you did not have a sexual relationship with her from 1994 to August 2002; and

(o)you never had a sexual relationship with said Katrine Trolle and had never been with her in the house occupied by you at 2005 Paisley Road West, Cardonald, Glasgow or with her at Kingennie Court, Dundee;

the truth being as you well knew,

(A) that on 9 November 2004 at the Executive Committee meeting of the Scottish Socialist Party held at 70 Stanley Street, Glasgow you did admit to attending said Cupid’s in Manchester on two occasions in 1996 and 2002 and that you had visited said club with said Anvar Begum Khan;

(B) that at said meeting it was stated by said Alan William McCombes and Keith Robert Baldassara that they had previously raised the issue of you attending a sex club in Manchester and that you had admitted to them that it was true;

(C) that at said meeting you did not deny having visited a swingers’ club in Manchester;

M) that on 27 September 2002 you did attend said Cupid’s in Manchester with said Andrew McFarlane, Gary Clark, Anvar Begum Khan and Katrine Trolle and that you had visited a club for swingers;

(N) that between 1 January 1994 and 28 August 2003 you did have a sexual relationship with said Anvar Begum Khan; and

(O) that between 1 January 2000 and 31 December 2005, both dates inclusive, you did have a sexual relationship with Katrine Trolle, that she had been in the house occupied by you at 2005 Paisley Road West, Cardonald, Glasgow with you and that you had stayed overnight with her at16 Kingennie Court, Dundee;

Secondly, when the case was at an earlier stage, I composed this wee post outlining the differences and voting rules between (a) Scottish civil juries (b) English criminal juries and (c) Scottish criminal juries. Perhaps the critical detail to bear in mind in a case such as this, conviction on any charge requires eight votes out of fifteen. One juror fell by the wayside as the case against the Sheridans was laid out, leaving fourteen souls to decide Tommy's fate. Under Scottish rules, the conviction threshold is not diminished by the prodigal juror and the Advocate Depute still has to persuade at least eight of the fourteen to vote guilty. If he can do so, even if six ardently believed the accused was innocent - he would still be competently convicted. In some quarters, I note this has been criticised as stacking the case in the prosecution's favour. This, in melancholy contrast with the position in England, where a qualified majority of 10 of 12 votes in favour of guilty obtains. Obviously, to suggest Scottish rules favour the Crown cannot be the case mathematically speaking, since the prosecutor must convince the majority. Quite properly, the Crown must undertake the burden of persuasion.

Moreover, critics would do well to consider Scottish corroboration rules, which undeniably (and much more radically) favours the defence, particularly in circumstances where evidence is limited or hard to come by. While in England, ten jurors must be convinced of guilt, charges can be put to them for a decision which are simply knocked out by strict Scots rules on corroboration. Compare these examples. Imagine an abstract case where a single truthful witness avers some villainy about the accused. Imagine another where two rogues concoct a fiction about the wretch in the dock. On Scottish sufficiency tests, assuming there is no other independent evidence, the first case would fall for want of corroboration, while the second could proceed. It may be that the jury would winkle out these imaginary villains - and acquit the accused. It may be that the jury believe the first honest witness wholeheartedly and without reserve - but are deprived of legal capacity to give criminal effect to that persuasion by convicting the man she accuses. What these respective imaginary cases suggest, I'd argue, is that these rules are a feature of Scots law's artificial reason, its technical requirements.  Its for this reason that I  prefer the deliberative pair proved/not proven to guilty/not guilty. The former emphasises - much more clearly and beneficently alienatingly - the extent to which law is based on the limited logic of charges and proofs - and should not be simply conflated with general notions of truth and justice. Merely reflect on this. In our own lives and in our moral reflections, how many of us would insist on  minimal independent corroboration before we even begin to consider reaching any conclusion on the truth of some claim, value or position?

As I say, I pass no comment on the instant case, other than to remark that these issues and general conceptions about law's (and particularly criminal law's) place in the life of the Scottish polity will certainly circulate in the coming days, whatever the result. Today, the Satsuma Cicero has said his final word until the jury hand down their verdict. For the man himself, and those like myself who've listened to the detail of this case with interest, the wait is almost over.

Cadaver politics on tuition fees...

"I believe these reforms are fair, progressive - and above all necessary - in our national interest..." Every Tory coalition spell seems to employ some combination of this three-part incantation. I want to focus on the idea of necessity, the vision of (un)politics implied and the metropolitan Left's collective devolution blindness. Last week, the Scottish government published Mike Russell's Green Paper, Building a Smarter Future: Towards a Sustainable Scottish Solution for the Future of Higher Education, 

Tory figures - and pressmen who've accepted their axioms - gave a rather paradoxical impression in their discussion of these issues last week. Isn't this awfully unfair on English students? Aren't southerly youngsters getting a raw deal? Their answer is invariably yes, and as I noted in a recent piece paraphrasing my old friend Robespierre, leads to the rejoinder that if education spending is higher, all spending must be inequitably too high. This seems curious, since it implies that Tory figures like Peter Bone MP believe that if the Liberal-Tories could afford it, all students across the United Kingdom would benefit from free higher education. We can't afford it, hence, if you can afford it, you must be receiving an "unfairly" high distribution of public spending. On one level, this is simply wrong - and it should be conceded that such funding disparities would be perfectly possible if there was absolute equality in public spending. However, its important to ask why is the argument wrong in the way it is? Why this logic and this objection and not others?

I'd suggest that the pervasive tendency to cite necessity as a coalition justification strategy is crucial here. We are lead to believe that fees were introduced in England, simply reflecting "funding realities". It is contended that the Coalition's conclusion was reached on the basis of fundamentally depoliticised choices made in a benign technocratic-managerial vein.  That is not to say that one couldn't make a consciously politicised account of why would-be graduates should stump up for education, justified in contradistinction to other political beliefs and commitments. However, it is crucial to recognise that the Westminster government isn't making this case. Devolution and in particular, the choices of Scottish devolved institutions on higher education funding - fundamentally assails this twin account of tuition fees as de-politicised necessities. That, in part, goes some way to explain why the Green Paper provoked such hysteria - it threatens to make visible the fundamental falsity of the Westminster coalition's position, which is a choice among choices - and undoubtedly "political" in the sense that the policy choices are governed by particular ideological commitments (however minimally conscious individuals and parties may be about their selective philosophies). It is for this reason that a critique of our politics based on the idea that it is post-ideological is basically unhelpful - since it obfuscates the extent to which  the necessities of mainstream "common sense" are furnished or absent, based on one's theoretical orientations. What is surprising, given devolution's powerful potential to subvert coalition rhetoric, is the continuing absence of any devolved consciousness on the British left, which still seems to dream of Britain as a unitary state. This theme was taken up somewhat by Gerry Hassan has a piece on "Ed Miliband and the Limits of the New Socialism". 

It strikes me as interesting that so little of this rumination and critique on the Left refers - even obliquely - to Britain's altered State and devolution in Norn Iron, wurselves and our Welsh friends. I say this not in the spirit of a sour appurtenance but to note how curious it is at the level of the political imagination and of theory. I've encountered countless metropolitan articles talking about "the" NHS and so on - all of which obfuscate differences (potential and actualised) within the UK as it stands. Why do these not interest the London-minded left who seem to occupy a phantasm unitary UK which (if it ever existed in an unproblematic form) ceased to make sense long ago? Generally, folk have responded to these and similar questions by invoking solidarity across borders and an interest in the lot of your fellow man. However, if we accepted this logic, the invisibility of Britain's collapsed centre in their arguments should simply be understood as being elided by simplification. Devolved consciousness is present, but bracketed to produce direct prose and clear arguments. I'd argue that there's much more to it than this - and the striking absences here are more than simply incidental but fundamentally reflect a limited vision of British politics. Whether on BBC Question Time, in parliament, or in the pages of the metropolitan press - this is guilty cadaver politics and the lurching, stumbling steps of a zombified Britannia.

Orwell's ten(ish) ...

A few folk have prevailed on me to put myself forward for yon Orwell Prize for blogs this year.  There seemed no harm in it and the process of revisiting the past year in ten pieces was enjoyable. A reminder, if nothing else, that I embarked on this particular project in January of 2009 - and will soon have been blogging for more than two years. Since we are in the Festive season, it seemed a nice notion to compose some sort of end of year review. Here are just some of my many posts from the last twelve months. I've tended to focus on those pieces which I hope contributed an interesting thought, an alternative perspective on some public care of the day - something mildly daft - or which drew attention to something neglected elsewhere in public debates in Scottish political or legal life (broadly conceived). I also appreciate all the fellow bloggers and commenters who have entered into discussion with me over the last year, prodding the flabby underside of my reasoning or emphasising some neglected issue or line of argument. Despite the internet's reputation for girning trollery, you've been amusing, gently insulting - but in my experience, overwhelming reflective, wry readers.

Regular readers will know that I'm interested in the issue of gender - a Scottish care which would dearly benefit from much more critical examination. Joan McAlpine and others have written about Scottish women and Scottish N(/n)ationalisms. Here was my response, trying to reorientate the debate a little, so we don't make the mistake of making it a woman's issue, thereby assuming conceptions of Scottish manhood and masculinity are straightforward or unproblematic. Will you Go Laddie Go?

I also like to keep an eye on Scottish justice issues. Amongst these, I've written about the potentially concerning breath of Holyrood's recently enacted laws, criminalising conduct associated with serious organised crime. The detail of these issues can rather snooze-inducing, even if your kyte is not yet cheerfully swollen with a festive libation or six. While most of us may not go in fear of the provisions, it is worthwhile, I'd submit, to keep Holyrood's new organised crime laws in focus...

Earlier in the year, the Scottish parliament rejected arguments from Labour and Tory MSPs, calling for mandatory prison sentences for all folk caught bearing knives, six months and two years respectively. Those calling for the imposition of such penalties included John Muir, whose son perished on the blade of such a weapon - who gave evidence to the parliament's Justice Committee. In a potentially controversial post, I argued against the proposals and the tenor (and politics) of Muir's contribution. Is this a dagger I see before me?

Another issue which has dominated this blog this year was Margo's (finally unsuccessful) attempt to legalise euthanasia in Scotland. Although I accept that imagining the issue as one delineated along crude binary lines - heathen and faithful, the benighted god fearing and the thanatophoric "rational" - religion's place in the public sphere is a crucial issue here.  I tried to have a wee think about this in Assisted dying: Holyrood and "religion in the public square"... On the same issue of religion, this post from Good Friday encapsulates many of my ambivalent sentiments - as a Godless soul - towards Christianity, its symbols, notions - and their power.

In a rare discussion of Westminster politics, I tried to unravel some of the paradoxes of (anti-) bureaucracy  which slosh about in our public discourses - and are likely to dominate, albeit on an implicit, confused level - the coalition's ongoing discussion about public spending, cuts and distribution models for benefits.  

Thanks are owed to Love and Garbage, who drew attention to another issue on which the press was largely silent - the constitutional legality of any Holyrood-ordered referendum on Scottish independence. Like most, I'd rather blithely accepted the political account of the problem - glossing over any legal difficulties. Looking into the issues, to my horror, revealed that the legality of the referendum was much less clear cut than everyone supposes. And the answer? Is the independence referendum legally competent? I'd argue there are good persuasive arguments why we can say - Yes! - however, the issue is legally much, much more problematic than the public, politicians and press have recognised.

Probably the most virtuous contribution of this blog to our public life this year, my first post rejoiced under the stark headline Scotland legalises domestic abuse...  after an outrageous decision of the High Court of Justiciary on breach of the peace. Despite being ignored in the press, and the concerning significance of the judgment being missed, I pestered all of our MSPs about the point - questions were laid in Holyrood, eventually the tale was covered in the Scotland on Sunday - and thanks to some Ministerial despatch, the lacuna in the law was reasonably hastily filled in, as a saving legislative section was expedited and brought into force.

Finally, to end on a jaunty note - and prove that communication beyond the grave is possible - to date, I think, my most effective piece of necromantically channelled poetry has been To a Foulkes, composed in honour of Lord George's departure from Holyrood at the coming election in May 2011. Exceedingly difficult to distil many months into a brief flurry of pieces. Those are just a few which I particularly enjoyed writing. I hope you appreciated (at least some of them) too.

Momentous announcement [sic]...

We are all, no doubt, painfully familiar with the atrophy of local news services in Scotland. Wanting to do my bit to keep such valuable publications going and to nurture a polyphonous Scottish public sphere, I've agreed to publish occasional despatches from the North West's favourite organ of record, the Kinlochbervie Chronicle. Composed, published and printed in the baldy-man landscape of coastal Sutherland, the paper describes itself as "Scotland's only quality daily newspaper", offering the full gamut of news and comment - local, national and international. 

In the interests of candour, I should add that the Kinlochbervie Chronicle is owned by local "bonnet laird" Sir Reginald Sittish-Standish (so-called because of his rusting collection of antique vehicles. Mostly grey Ford fiestas). An interventionist proprietor, Sittish-Standish frittered away the wilted-salad days of his early middle age sitting as the Conservative MP for the English rural constituency of Buxomdame North, Bladderpole and Widdle-on-the-Mead. He relinquished his berth to a younger man, with little grace and a great deal of reluctance, in the Westminster General Election of 2010. Sir Reginald describes himself as a "moderately radical Thatcherite-Heathite Tory" and emphasises that his commitment to the Union of 1707 is "quite complete". Most of the day-to-day editorial tasks are devolved upon the paper's only employee - Ecclefechan McKay (MA), formerly of Glenalmond College, Edinburgh University and the Scotsman newspaper (where he was unemployed in an undisclosed capacity). The Chronicle previously brought you this exclusive coverage of David Cameron's (now conspicuously absent) "broken Britain" meme. 

Stay tuned.

The Holyrood assizes...

Oral evidence continues at Stage 1 consideration of the Scottish Government's Double Jeopardy (Scotland) Bill, which proposes (1) to enshrine the principle of tholing your assize in statute (having been tried and acquitted, your judicial ordeal is over and the disposal is final) and (2) delineate clear exceptions which will allow acquitted individuals to be retried in Scotland under particular circumstances. I'm conscious that the issues raised by the Bill are simultaneously politically important and interesting - and often befuddlingly technical. No sane soul, consciousness unassailed by a legal education, can much care for the legal draftsman's style, which invites the reader to leap to and fro in a tangle of clauses and subsections. Its all too easy to trip up. Today, I thought I'd quickly summarise what the Bill proposes and emphasise one or two of the issues raised by learned lawyers in their submissions to Holyrood's Justice Committee. I've previously discussed the evidence of the Scottish Law Commissioner Patrick Layden QC, who informed the Committee that unlike the unsolved "cold cases" of telly cop dramas, in cases where the accused is acquitted, physical evidence is currently disposed of, destroyed, lost. The upshot of which being, practically speaking, that this reform will not allow new science to be applied to old physical evidence locked away in some police archive, where there has been an unsuccessful prosecution.

Summary of key sections of the Bill...

As currently drafted, these include "tainted acquittals" (§2), allowing re-prosecution for the same or similar offence - where the acquitted person or some other person has been convicted of an offence against the course of justice in relation to the trial - or where the Court is persuaded, on balance of probability, that an offence such as bribery or suborning perjury has taken place. It does not matter what offence the individual was acquitted of. Any competent charge could be retired, with the permission of the High Court, if the original trial is shown to have been "tainted" for the purposes of the Bill.

The most prominent proposal in the Bill is to introduce a "new evidence exception" (§4). In contradistinction to the "tainted acquittal" provision, this aspect of the Bill would only apply to a select series of offences. The draft Bill would empowers the Lord Advocate to apply to the High Court to set aside the acquittal and grant authority to bring a new prosecution. In considering whether to do so, the Bill requires the High Court to consider the following on any "new evidence" (§4(3)):

(a) the case against the accused is strengthened substantially by the new evidence,
(b) the new evidence was not available, and could not with the exercise of reasonable
diligence have been made available, at the trial in respect of the original offence,
(c) on the new evidence and the evidence which was led at that trial, it is highly likely that a reasonable jury properly instructed would have convicted the person of—
(i) the original offence, or
(ii) a relevant offence (had, in the case of an offence mentioned in subsection (2)(b), such an offence been charged), and
(d) it is in the interests of justice to do so.

Criticised by some as being unnecessary given the foregoing general section, nevertheless the draft Bill picks out admissions of guilt after an acquittal in largely similar terms. Remember, the proposed Bill limits the availability of any new evidence re-prosecution to a selection of offences. In this respect, MacAskill has largely copied the existing model in England, albeit with different offences listed. They are as follows:

Offences against the person
Murder; Culpable homicide

Genocide etc.
Genocide (s1 of the International Criminal Court (Scotland) Act 2001); A crime against humanity (ibid); A war crime (ibid).

Sexual offences: common law
Rape; clandestine injury to women; abduction of a woman with intent to rape; assault with intent to rape or ravish; indecent assault; Lewd, indecent or libidinous practice or behaviour; Sodomy.

Sexual offences: offences under the Sexual Offences (Scotland) Act 2009
Rape; Sexual assault by penetration; Sexual assault; Rape of a young child; Sexual assault on a young child by penetration; Sexual assault on a young child; Causing a young child to participate in a sexual activity.

Other sexual offences
Incest; Sexual intercourse with a stepchild; Unlawful sexual intercourse with a girl under 13

As it is currently drafted, the Bill would permit the Government of the day to add or delete offences from this list, by subordinate legislation (§4(7)).

Justice Committee evidence...

Yesterday, the Lord Justice Clerk, Lord Gill, gave evidence to Baillie Bill Aitken's parliamentary Committee, which heard last week from Richard Keen QC, Dean of the Faculty of Advocates - Alan McCreadie, deputy director of law reform with the Law Society of Scotland - John Scott, former chair of the Scottish Human Rights Centre - and Shelagh McCall, a commissioner in the Scottish Commission for Human Rights.  Interesting remarks were made by a number of parties, particularly on the idea that this legislation should only apply to serious cases. 

But how to do it? The Government are proposing a list - but the list is potentially problematic, in that its present drafting might conceivable coverage comparatively minor issues, first prosecuted before a sheriff alone. Most offences in Scots criminal law are triable summarily (before a Sheriff sitting alone, with more limited sentencing powers) or on indictment (before a Sheriff sitting with a jury or before a Senator of the College of Justice and a jury in the High Court of Justiciary. Both have enhanced sentencing powers). Certain offences - such as murder, rape, treason - are traditional Pleas of the Crown and must be tried in the High Court. Unless you limit the list to these of potentially re-prosecutable offences to these charges - it is very difficult to abstractly to limit re-prosecution to serious cases. Any reference to assault would encompass a drive-by bruising from a flung bread roll. Any reference to fraud would include wry schemes netting the fraudster millions or only pennies. The point is that Scots law generally doesn't distinguish between seriousness at the level of offences, but on the forum chosen to prosecute, the sentencing powers of the forum - and the punishment imposed. This presents a real difficulty for the list-based approach the Government is adopting, even before one falls into a discussion about whether drug offences, robbery - and attempts - ought to be included.

As I understand Alan McCreadie's evidence - the Law Society have suggested a cunning wheeze to get around the problem. Why not, they argue, only permit a new evidence re-prosecution in individual cases where the acquitted person had been tried on indictment? Rather than scribble a list of qualifying offences - problematically open for the government to add and subtract from - primae facie this approach would only permit reprosecution in cases which the Crown Office and Procurator Fiscal have already identified as sufficiently serious to warrant proceeding on indictment, before a jury. Given the exceedingly small number of cases in Scotland tried in this way - off the top of my head, a scanty 5% of total trials - it would significantly limit the ambit of the reform.

I do wonder about more extensive indictments, however, where a case was brought in the High Court on the basis of a serious offence - with a number of more minor infractions tacked on. After being acquitted on all counts, the Crown could then recall the acquittal and reactivate (with "new evidence" and the High Court's consent) the associated more minor offences, which in themselves may have only warranted summary proceedings before a Sheriff.  What this emphasises, as much as anything else, is that a measure of arbitrariness and unpredictability is inherent in the proposed reform. So too is a familiar tendency of Scottish law reform - pass sweeping new offences or devolve broad powers - and then trust in the Crown Office not to use them as drafted. This exchange been Tyrant Bill and Lord Gill exemplifies the attitude:

Lord Gill: "... Of course, you also have a considerable safeguard overhanging all of this, which is the position of the Lord Advocate, who exercises wise judgment in the public interest. The office of Lord Advocate is a considerable constitutional safeguard."

The Convener (Baillie Bill): "We are totally reliant on the Lord Advocate and her successors adopting an attitude towards the provisions that will ensure that they are used sparingly."

Lord Gill: "Yes. That is why, in this country, prosecutions are not conducted oppressively. The office of Lord Advocate is such that before any prosecution is launched, the public interest is carefully considered."

Its simple! Once we've over-criminalised great swathes of conduct and empowered our prosecutors to pick and choose who really deserves being thoroughly radished by public power - we have room to be just and persecute the deserving while delivering the meek and the "blameless". Its a perverse mode of legislation, but one which our Parliament is frightfully keen on.

"Death hath so many doors to let out life..."

As regular readers will know, I like to take a wee peek into the detail of Scottish quantitative research, not least because the raw data often holds the interesting potential to subvert and challenge our understandings about the incidence of some commonplace social phenomena. Today's drear subject is homicide in Scotland. Day in, day out, the media exercises its capacity to make the aberrant seem average and thereby constitutes a public whose views on the prevalence of certain modes of killing, certain "social problems" and apprehensions of risk - are often strongly at odds with statistical realities. You'll likely have heard this year's topline figures on the news. In Homicide in Scotland 2009-10, the Scottish Government publish figures showing that in the last year, Scottish police forces recorded 78 cases of homicide,  down from 97 cases in 2008-09. This is the lowest number of cases recorded in the last 10 year period. Here are just a few of the bits and pieces from the publication which caught my eye.

Age, Gender...

In total,there were 79 victims of homicide in Scotland last year (the 78 figure relates to homicide cases, slightly different). Nine people below the age of 20 were violently done to death. Out of the total of 79 deaths, 52 of the victims were male (66% of the total). As others have cautiously recognised, rates of homicide fluctuate very significantly. Looking across the last decade (2000 - 2010), this year the numbers of male victims hits a decade-long low. In 2004/05, more than double today's numbers perished, with 110 men being killed. 2009/10 records 19 fewer male deaths than the next lowest year of the last ten years (in 2000/01 and 2008/08, 71 men died in homicides). The number of female victims of 2009/10, by contrast, remains significantly lower but did not decrease in comparison to previous years. There were 27 female victims (34% of the total number of victims). Last year, 28 women died in circumstances of homicide. In the late decade, the lowest number to die fell in 2005/06 with 13 deaths, the decade high falling in 2000/01 during which 36 women were killed. 

Main methods of killing, gender...

A macabre roll of instruments, it must be said - but worth knowing, not least because our press-mediated perceptions often tell a different story. Last year, only two people (2.5% of the total) died gunshot wounds. Over the last decade, no more than 8 people have died per year as a result of being shot. 35 (44% of the total) were killed using a "sharp instrument", with 10 killed by blunt instruments and 10 by the pure physicality of hitting and kicking (12.7% of the total, respectively). 7 people were throttled, 3 were poisoned. The figures also afford some insight into the gendered nature of forms of killing. Amongst men, 27 (52%) died on the point of knives and similar objects. Amongst women, sharp instruments claimed 8 (30%). Horrifyingly, the second most common method of killing women was strangulation or asphyxiation, with seven women - or all of the national total - having their lives choked from them last year (26% of the total number of women killed).

Those mean streets...

Up to a point, Lord Copper. In 2009/10 47 homicides (60% of the total) took place in houses, one in a garden, two in a close - and contrary to a long-standing literary paranoias about mysteries to be solved by dapper Belgian detectives - no one was slain in a hotel. Some many be surprised to learn that only 1 death occurred in licensed premises in 2009/10. In any given year across the whole of the last decade, at most 4 people have been killed in pubs per year. Only 32% of homicides (25 in total) took place out of doors in some public setting last year. The chart (top right) shows this distribution.

Victim's relationship to main accused, gender...

In 2009-10, 78 % (61) of homicide victims knew the main accused, either as an acquaintance (53 %), relative (9 %) or partner (17 %). The partners or ex-partners of only 3 of 51 male victims of homicide (in "cases solved") were accused of bringing about their deaths (6% of the total). In the case of female victims whose cases are solved, 4 were killed by their parents, constituting the whole national total of people killed by their mother or father. 10 women were killed by their partner (37% of the total). 

Geographic distribution...

In 2009-10, 43 of 78 recorded homicide cases took place in the Strathclyde police force area (constituting 55 % of the national total). The statisticians have isolated Glasgow specifically, 20 deaths in the last year, or 26% of total deaths in Scotland). To contextualise this year's figures over the last decade, in the year in which the highest number of homicides took place (2004-05), 82 of 134 deaths took place in Strathclyde - a huge 61% of the national total in that year. In Glasgow city in the same year, the figure was 39 deaths. In Scotland's other city states, only three people were killed in both Aberdeen and Dundee, Edinburgh counting 7 homicides in the last twelve months. 

Read the whole bulletin yourself here.

♫ Its Beaker's midwinter ♫

In the latest in my ongoing series of sepulchral poems, today this delightfully festive icicle-evoking hymn, composed by Christina Rossetti on the occasion of former SNP Transport Minister, Stewart Stevenson's disappearance in a political snowdrift. Happily, Jack Frost seems to have been kindly to me this Friday and I successfully navigated my way north back up to Scotland without delay or incident. Above, (left) you can see an artist's impression of my great traipse from the balmy English lowlands to the parched-drowned white-capped girning landscape of fair Scotia, mounted atop my faithful bovine retainer, Jean-Jacques Rousseau. After gulping down a peaty slurp of Laphroaig and flinging a warming clod on the fire, I turned my attention to affairs of the day and the frozen oblivion to which Stevenson has been consigned. Conjured up from a cloud of smoke like the Ghost of Christmas Past, the good dame Rossetti began to sing the following verse. As luck would have it, I had a pencil to hand and managed to scribble her words down before she exploded in a shower of ectoplasmic shards. If you are keen to sing along, do play the melodic-melancholic version included below, which I think captures Stevenson's undoubted sense of professional bereavement and the lasting paranoia which this Winter's Tale will leave him with. As a certain English playwright once put it, "A sad tale's best for winter. I have one of sprites and goblins..." 
 

Its Beaker's Midwinter

~ Christina Rossetti

♫ “Its Beaker's midwinter,” frosty Gray made moan,

“Weather Himalayan!” cried Bella like a crone;

“Snow has fallen, snow on snow, snow on snow,

Its Beaker's midwinter,” said I had to go. ♫

♫ Oor Eck, they cannot gub Him, my career sustains;

Tavish he shall flee away, no Snow Court arraign.

"Its a freak midwinter”, that stable place sufficed.

The Maximum Eck Almighty, save me from the ice! ♫

♫ Not enough for Gray bonce and his wintr'y mass.

Stevenson's a donkey, an incomp'tent ass

Striving some hay to make, hoot "turn him into glue";

"Its Beaker's midwinter! We blame the snaw on you".♫

♫ Lorries and commuters may have gathered there,

Snowflakes and blizzards may have thronged the air;

But I tried my hardest, slipped arse o'er tit,

Live in fear of snowmen, dread their frozen kiss.♫

♫ What can I give Eck, poor as I am?

If I was a muppet, t'was just a little jam!

If voters were much wiser, they'd travel just by yak;

But I'll send my resignation, before I get the sack.♫

Andy Coulson Satsumad in court...

As I mentioned a while ago, unless you are in a position to write up fair and accurate contemporary reports on proceedings, like Mr James Doleman, it is nigh impossible to write much of interest on the ongoing case of H.M. Advocate v. Sheridan and Sheridan. The trial has been hearing evidence for more than two months, having begun on the 4th of October. The prosecution has now closed its case. Today, as anticipated, the director of David Cameron's communications from 10 Downing Street, Andy Coulson, appeared before the jury and Lord Bracadale, giving evidence for the defence. The Sheridan Trial blog as a full account of what has transpired thus far, as Tommy solicits his evidence-in-chief from the former News of the World editor. On account of tonight's vote in Westminster on tuition fees, a story which might have resounded with a whizz-bang through the press has, at most, sputtered squibbishly. My co-legalist friend Love and Garbage has a post briskly dispensing with the suggestion that this coincidence was somehow connived at to minimise the attention paid to his appearance. This doesn't make sense, not least because the Crown's deletion of a whole section of the indictment was hardly foreseeable - and whatever else he might be, Tommy makes for an improbable handmaiden (or painted dame) in the service of Tory powers.

One prominent deletion from the indictment against Sheridan was the charge of suborning perjury. The original indictment included the following:

"...knowing that accurate minutes of the said meeting existed and had been lodged on 16 June 2006 at the said Court on behalf of the said defender and that said Colin Fox was to be called as a witness at said trial did on 18 June 2006 at the premises known as The Beanscene, 67 Holyrood Road, Edinburgh attempt to suborn said Colin Fox, to falsely depone as a witness that the minutes of said meeting were not accurate and you did thus attempt to suborn said Colin Fox to commit perjury..."

This charge fell at the close of the prosecution case, citing the absence of corroboration. Corroboration is the evidentiary rule in Scots criminal law which requires that the essential elements of criminal charges are based on sufficient evidence, meaning evidence from two independent sources. In H.M. Advocate v. Sheridan and Sheridan, the Crown was only able to lead evidence from Fox himself, alleging that Tommy had attempted to  suborn perjury from him in the caffeinated atmosphere of the Beanscene outside of the Scottish Parliament. When the indictment was originally published in July 2009, I pointed out that in order to bring home a conviction on the charge, the Crown would have to produce some evidence beyond Fox's say-so. I was curious about what such evidence might be. So much, so obvious to anyone with a dim recollection of their Scots law of evidence. Giving evidence to Holyrood's End of Life Assistance committee, the Solicitor General Frank Mulholland recently told our parliamentarians, and I quote:

".... our job as prosecutors is to apply the law. It might be helpful to answer your question by outlining the general considerations that are taken into account when a case is reported to the procurator fiscal by the police. There is a step approach to assessing whether to prosecute. We have to answer a number of sequential questions, the first of which is whether there is sufficient admissible, credible and reliable evidence that a crime has been committed..."

Interestingly, this rule doesn't obtain in England - and as a result, a comparable charge in England, based on Fox's evidence, could be put to an English jury. It would then be up to them to make up their minds about how credible and convincing they found that evidence. The absence of corroborating proof, for example, might be a good reason for the jury to entertain reasonable doubts about the accused's guilt. Interestingly, in an interview with the Scotsman, Lord Carloway confirmed that his post-Cadder review will encompass these strict Scottish corroboration rules, telling the paper that:

"Is corroboration in the melting pot? Yes. It is in my terms of reference and will therefore form a significant part of the review. Every sophisticated system of criminal law works on a system of checks and balances. Are the protections we have relied on previously appropriate now in a system which has had additional safeguards introduced into it following the Supreme Court judgment. Corroboration has been a cornerstone of the Scottish system for a long time - and a matter of considerable pride - in assessing sufficiency of evidence. I'm not aware of any other country in Europe that has such a strict concept of corroboration as we have had. If we conclude the concept should be adjusted we will have to set out a new test for sufficiency of evidence."

The trial of the alleged perjuries of the satsuma socialist, and his satsuma spouse, continues.

Those Lockerbie case cables on Megrahi...

The Guardian is now publishing wikileaked U.S. cables relating to the Lockerbie Case, in particular the processes surrounding the compassionate release of Megrahi. It is late and I haven't had the time yet to examine, in detail, what these documents might reveal, what public truths they might avow or rebut - and who they might embarrass. More later no doubt. For now, here are the relevant cables touching on the period before and immediately following the release which have been published thus far:

From Friday, 24 October 2008 SUBJECT: PAN AM 103 BOMBER HAS INCURABLE CANCER; LIBYANS SEEK HIS RELEASE

From Wednesday, 28 January 2009 SUBJECT: PAN AM BOMBER AL-MEGRAHI: THE VIEW FROM TRIPOLI 

From Sunday, 23 August 2009 SUBJECT: QADHAFI PERSONALLY WELCOMES LOCKERBIE BOMBER 

From Monday, 24 August 2009 SUBJECT: SCOTTISH PARLIAMENT HOLDS EMERGENCY SESSION AS DEBATE OVER MEGRAHI DECISION REACHES FEVER PITCH

From Wednesday, 28 October 2009 MFA OFFICIAL: QATAR'S INVOLVEMENT IN AL-MEGRAHI RELEASE STEMMED FROM ARAB LEAGUE REQUEST TO QATAR AS ARAB LEAGUE PRESIDENT

A taxing future for Nationalists?

Amongst the many inhuman and degrading practices I was subjected to during my days at the University of Edinburgh, one of the most bracing was the unavoidable study of taxation. Not, I might add, tax policy or tax rationale - or alternatively, thoughts on how more just systems of payment and contribution might be devised and administered. Rather, along with my fellow legal would-bes, I was induced to invest in vast yellowy toilet-paper tomes and delved rather diffidently into their flutter-paged depths, pursuing the mystifying detail of tapers, relief, life gifts, retention of substantial benefit, how best to minimise inheritance tax payments on the vast estate of some gout-ridden ex-Colonel with a vengeful prostate, an ex-wife, three bastard non-domiciled children and a beloved middle-aged bankrupt hen to whom he intended to leave the residue of his estate - and so on. This litany of terrifying detail was only leavened by the occasional tale of a spivish evader who spent all of his business's cash on gold bars and dished them out to his employees in lieu of payment, to foil the grasping Revenue. As a result, I've been left with something of a toad perspective on taxation. 

Today, I want, very briefly, to vault from my lilypad and pose a question from a different perspective. This week, Holyrood's ad hoc Scotland Bill Committee meets for the first time to scrutinise the proposed Scotland Bill and issues of legislative consent. The good ship devolution reform boasts a jolly crew, with the fragrant Wendy Alexander likely to be lashed to their prow. Bosun Robert Brown, no doubt hoping to make the most of his last days in the Scottish Parliament, is also sitting, along with the SNP's  Able Sea(persons) Brian Adam and Tricia Marwick. From her Labour colleagues, Wendy is joined by the salty Peter Peacock while David McLetchie represents the interest of Toryism. Given his tendency for landing feline scratches, and the difficulty of imagining that he is particularly enthusiastic about this proposal, I invite you to think of Mr McLetchie as Ship's Cat on this particular voyage.

Scottish independence's mantra ought to be better not easier. The same conundrum should be recognised by nationalists thinking about enhanced powers, however problematic, partial, non-optimal, or short of one's commitment to independence they might be. It strikes me that one of the interesting aspects of changes to taxation decision-making about Scotland is precisely the shift of responsibility which it demands of nationalists. It also lends an enhanced relevance to the incoherence which is often articulated as the myth of Scandinavian levels of public spending with Irish levels of taxation. Both of these visions (in more or less detail) find traction among Scottish Nationalists and Scottish nationalists besides. There is disagreement. This shouldn't be a particularly controversial observation. However, it is worth quoting directly from Dennis MacLeod and Michael Russell's Grasping the Thistle, in which they advocated they following  "seven pronged approach to reducing government size and boosting growth rate" (2006, 131).

• freezing and cutting government expenditures including the freezing of recruitment by government and quangos
• boosting business growth by reducing corporate and personal taxes
• countering the negative Union factor 
• improving government efficiency by exposure to the free market economy
• building the number of economically active citizens by facilitating the transfer of civil servants (and potential civil servants) to the private sector as well as boosting immigration
• increasing investment in research and development and education
• development of our neglected natural resource

Sound familiar? Lots of issues are bundled up here and I am by no means attempting to untangle them. However, I do wonder if one of the consequences of the ongoing Scotland Bill reforms will be an increasingly open discussion, which might clarify the extent to which there is disagreement in Scottish nationalism's broad coalition of interest about the sort of Scotland we want and the character of the future, independent Scotland we imagine. More than that, I dare say a significant number of folk haven't given these practical issues much thought. I welcome such developments, not least because disagreement is not disloyalty and uncertainty is not foolishness.

There's no devolution without devolution...

To paraphrase my Jacobin friend Maximilien Robespierre, this week I've found myself reviving the question "do you want devolution without devolution?" Various commentators have form with this particular species of misunderstanding, where notional support for devolution sits uneasily alongside trenchant criticisms of some inequality in these islands. Of late, intemperate terms such as educational apartheid are being bandied about in response to the prospect of ratcheted up English student debt, feeless Scottish higher education and the news that the Welsh Assembly Government has decided to bear the brunt of the Conservative-Liberal coalition's university fees hike, saving academic Welsh youngsters the significantly inflated cost of a degree which their English cousins will bear alone. What strikes me as curious is that challenging the "unfairness" of this seems to make Scottish and Welsh authorities the guilty regimes who ought to "get" a good deal less cash (this premised on the assumption that if education spending is higher, all spending must inequitably be too high). This argument doesn't register a number of debatable points. 

Firstly, "fairness" isn't a transparent term and different conceptions of a fair distribution of spending across the United Kingdom may be advanced. Paxman et al. specialise in obfuscating justifiable differences between conceptions of fairness by pigheadedly insisting on the common-sense damn-your-eyes obviousness of one particular conception of just spending. Cowrin, timorous politicians tend to collude in their own abuse here, deflecting and avoiding the substantive heart of the thing - which is a debate on what constitutes a fair distribution. Secondly, if we assume that our levels of public spending are justifiably fair(ish) on some conception of justice, different priorities in terms of spending could easily reproduce the student fees situation we have before us. It is by no means evident that fees in one part of the country and none in another indicates that the latter is growing paunchy while the other is being hollowed out to feed the lardy substance of the latter. Obviously enough, the consequence of not subjecting your students to fees would be diminished spending on some other area.  This, as others have rightly argued, is the inevitable consequence of devolution. 

Indeed, the incoherence of this allegation on the individual cost of higher education illuminates an important aspect of theories of apartheid. Oppression of this sort, I'd argue, is fundamentally premised on the inclusion of the excluded category whose life is regulated, allotted a subordinate position in relation to the dominant category. I know it sounds obscene, but an apartheid state only makes sense if it is underwritten by a unitary analysis. As I understand it, devolution is precisely about foregoing this sort of unitary thinking in the United Kingdom. I'm not sure how convincing the argument "different therefore unequal therefore unfair treatment" was before 1998 - particularly with a view to our different legal systems in the United Kingdom - but the logic of the case collapses  totally once you accept devolved axioms about the justifiability of different treatment, spending and priorities - in the name of "local" decision-making. Give me a black-hearted Unionist any day who despises devolution with all of his heart, compared to these lukewarm clots who can't embrace the basic conclusion demanded by their warped logic. There's no devolution without devolution.

The particularly bizarre aspect of this discussion is the suggestion that it is used as an excuse to attack devolution rather than the plots and schemes of coalition to balloon student debt, while giving us stern lectures on why national debt is terribly iffy. Instead of seeing this issue as a means of recognising English political choices as just that - choices - leaving room for others to take a different view about what matters, the education apartheid case seems to argue that if student funding differences are unfair, Scottish and Welsh authorities are faulty. Needless to say, this thinking needs to be rigorously repelled. If not, the debate risks being transformed into a bad-tempered indictment of the feckless Celtic fringe of ruddy-cheeked Scotch blackmailers and giggling Welsh chancers. Rogues on the make, needing no excuses to defraud your dull-dog English taxpaying yeoman of his hard-earned schilling. While  the underclass of "hard-working families" (as I like to think of them) are invited to viciously shillelagh the perceived excesses of the "devolved regions", sleekit English ministers would no doubt hope to slither away undetected. 

On wur ain snake-hipped ministers, in the Herald this weekend, Iain MacWhirter has a piece I'd very much endorse arguing that The SNP must stick to its guns on student fees. Mr MacWhirter has been very much on form this week, with another interesting contribution earlier on, arguing that the ongoing discussion on the new Scotland Bill represents a victory for the gradualist Scottish nationalist cause - but presents a real debating difficulty for the coming Holyrood election. Since I opened with Robespierre, I'll close with another Jacobin-inspired thought which seems relevant.  After King Louis' flight, Maximilien told his Jacobin brethren that:

"What frightens me is the very thing that seems to reassure everyone. And here I need to be listened to until the end. Once again, what frightens me is the very thing that seems to reassure everyone else: it’s that since this morning, all of our enemies speak the same language as us."

The core of MacWhirter's thesis is the notion that once you've transformed your opponents' premises, made them speak your language and talk to your concerns, you've been victorious.  It is certainly significant, in its limited way, that the new Scotland Bill proposes to change the Scottish Executive to the Scottish Government, in law. No doubt haughty quibblers are already feeling aggrieved to lose such an immediately useful form of condescension. At least in the deep fibres. In his remarks, Robespierre may have been concerned with false patriots who don the Phrygian cap only to cover their own iniquity and dissemble sincerity (a subject, interestingly enough, which Alex Massie has recently been blogging on under the title The Scottish Nationalist pathology). Both pieces to lend our lugs and minds to, I'd suggest.

Margo's Bill goes gently into that good night....

Conscious that I'm pre-empting Mr Patteron's traditional Sunday Whip, I thought it might be helpful to publish just how our MSPs used their free votes yesterday in the first and last stage of this parliament's deliberations on Margo MacDonald's End of Life Assistance (Scotland) Bill. As regular readers will know, I've written many pieces on the proposal's progress, its stops and starts, its rhetoric and reason. One hundred and three parliamentarians voted yesterday, with the vast majority deciding to reject Margo's proposal after a debate which was often thoughtful, generous. Indeed, it was just this quality of the debate which renders the decision fundamentally problematic. If you respect my views, why should yours entirely prevail and my choices be criminalised and punished? Many parliamentarians argued that they were opposing the Bill because of the risk of undue influence, that people may go gently into that good night who do not wish it, at the behest of venal relatives or because of apprehensions about their own burdensomeness. Few of those against the Bill attempted to give some thoroughgoing justification of this paradox. As I understand the argument, it assumes something like the following form.  

We should reject the idea of a monadic individual. People are socially situated. Some folk's ability to choose is likely to be more readily influenced than others. This being so, "vulnerable" categories may be more likely to be induced to end their existences precipitously than more robust fellow citizens. Therefore, in the name of "true" autonomy, truly autonomous individuals, for whom there is no question of "undue influence", should be forced to survive and suffer, or be quietly and slowly killed by advancing opiation. They certainly should not permitted to decide for themselves.

Thinking about the ways in which this reasoning was being deployed in Holyrood yesterday - and the profound contradition that cleaves it in two - I was strongly reminded of this passage in Slavoj Žižek's In Defence of Lost Causes, which I think goes a long way to explaining how so many of our tribunes were able to sustain its tenuous logic:. 

"What one should bear in mind is that, while every social structure relies on certain exclusions and prohibitions, this exclusionary logic is always redoubled: not only is the subordinated Other (homosexuals, non-white races…) excluded/repressed, the excluding and repressive power itself relies on an excluded/repressed obscene content of its own (say the exercise of power that legitimizes itself as legal, tolerant, Christian…, relies on a set of publicly disavowed obscene rituals of violent humiliation of the subordinated.) More generally, we are dealing here with what one is tempted to call the ideological practice of disidentification. That is to say, one should turn around the standard notion of ideology as providing a firm identification for its subjects, constraining them to their “social roles”: what if, at a different – but no less irrevocable and structurally necessary – level, ideology is effective precisely by way of constructing a space of false disidentification, of false distance towards the actual coordinates of the subject’s social existence?" (Slavoj Žižek In Defence of Lost Causes p.203)

We disagree, you agree that I am entitled to my views, why should you make the decision for each and every one of us? Patrick Harvie noted just this inconsistency in an acute contribution yesterday which it is worth quoting almost in full.
 

"On the principle of autonomy, the law is of course needed because people sometimes make choices that wider society cannot tolerate, generally because of some harm inflicted on other people. Suicide used to be regarded in that way—not tolerated and not legal—but that is no longer the case. We mourn a suicide. We question ourselves, or at least we should. We question our society about the causes and contributory factors, and we try to improve wellbeing in society. I hope, however, that none of us would want to regard suicide as an offence.

For any person to take control at the end of their own life, on their own terms, may be regretted and grieved over and may be distressing and traumatic for other people, but I cannot see why it should be criminal, even if that person needs to ask for help from someone who is willing to give it in a context of care.

Many people have argued that the law must protect people against the risk that they might feel pressure to make a choice that they do not really want to make or that they would not otherwise make. That is a genuine concern, but let us remember that by rejecting the bill we would leave people in exactly that position. People who wish to make one choice would be told that they may not. They would not be allowed to ask for help; they would certainly not be given it. People who wish to make the choice would be told that they must either go abroad to do it, if they have the money and ability to do so, or must risk criminalising the friends, family or others from whom they seek help.

Does that respect anyone's autonomy? Does that protect people from the pressure that they come under to make a choice that they find intolerable and that they do not wish to make? The risk that someone could come under pressure to end their life prematurely when that is not their preference is very serious and we should not take it lightly, but nor should we take lightly the serious risk, and the reality, that people are under pressure to make the other choice when they would wish to take the option of assisted suicide.

Some people will no doubt continue to travel overseas to make the choice. My final comment is that the absence of any vociferous call for those people to be chased down and prosecuted for travelling overseas for an illegal purpose suggests to me that we do not consider those people to be criminals. We do not consider them to be people who pose a threat to others or wider society. If we did, as for travel overseas for other illegal purposes, we would prosecute them. We do not, so let us stop treating them as criminals."

I very much agree. It is at moments such of these that I lament the relative absence of liberal discourses in Scottish politics and in Scottish Nationalist politics in particular. A substantial disquisition on that is a matter for another day. For now, onto the promised data mentioned at the outset on how individual parliamentarians voted. I was also interested in who missed the vote - whether wedged in a snowdrift, deliberately avoiding placing a view on the record - or other more benign explanations.  As such, I've appended a wee list of those who aren't listed as for, agin or abstaining. Without further ado, our roll call...

For (16)

Margo MacDonald, Christine Grahame (SNP), Robin Harper (Green), Patrick Harvie (Green), Jamie Hepburn (SNP), Bill Kidd (SNP), Richard Lochhead (SNP), Liam McArthur (Liberal Democrat), Ian McKee (SNP), Anne McLaughlin (SNP), John Park (Labour), Jeremy Purvis (Liberal Democrat), Iain Smith (Liberal Democrat), Sandra White (SNP), Bill Wilson (SNP).

Against (85)

Brian Adam (SNP), Baillie Bill Aitken (Tory), Wendy Alexander (Labour), Alasdair Allan (SNP), Jackie Baillie (Labour), Richard Baker (Labour), Sarah Boyack (Labour), Rhona Brankin (Labour), Ted Brocklebank (Tory) Gavin Brown (Tory), Keith Brown (SNP), Robert Brown (Liberal Democrat), Derek Brownlee (Tory), Bill Butler (Labour), Malcolm Chisholm (Labour), Willie Coffey (SNP), Angela Constance (SNP), Cathie Craigie (Labour), Roseanna Cunningham (SNP), Nigel Don (SNP), Bob Doris (SNP), Helen Eadie (Labour), Fergus Ewing (SNP), Linda Fabiani (SNP), Patricia Ferguson (Labour), Ross Finnie (Liberal Democrat), Joe FitzPatrick (SNP), Kenny Gibson (SNP), Rob Gibson (SNP), Karen Gillon (Labour), Marlyn Glen (Labour), Trish Godman (Labour), Annabel Goldie (Tory), Rhoda Grant (Labour), Iain Gray (Labour), Hugh Henry (Labour), Fiona Hyslop (SNP), Adam Ingram (SNP), James Kelly (Labour), Andy Kerr (Labour), Johann Lamont (Labour), Marilyn Livingstone (Labour), Kenny MacAskill (SNP), Lewis Macdonald,(Labour), Ken Macintosh (Labour), Paul Martin (Labour), Tricia Marwick (SNP), Jim Mather (SNP), Michael Matheson, (SNP), Frank McAveety (Labour), Jamie McGrigor (Tory), Alison McInnes (Liberal Democrat), Christina McKelvie (SNP), David McLetchie (Tory), Michael McMahon (Labour), Stuart McMillan (SNP), Duncan McNeil (Labour), Pauline McNeill (Labour), Des McNulty (Labour), Nanette Milne (Tory), Margaret Mitchell (Tory), Alasdair Morgan (SNP), Mary Mulligan (Labour), Elaine Murray (Labour), Alex Neil (SNP), Gil Paterson (SNP), Peter Peacock (Labour), Cathy Peattie (Labour), Mike Pringle (Liberal Democrat), Mike Rumbles (Liberal Democrat), Mike Russell (SNP), Alex Salmond (SNP), Mary Scanlon (Tory), John Scott (Tory), Tavish Scott Liberal Democrat), Richard Simpson (Labour), Margaret Smith (Liberal Democrat), Nicol Stephen (Liberal Democrat), Stewart Stevenson (SNP), David Stewart (Labour), Nicola Sturgeon (SNP), Dave Thompson (SNP), Maureen Watt (SNP), David Whitton (Labour).

Abstentions (2)

Jackson Carlaw (Tory), Charlie Gordon (Labour).

Absent (26)

Claire Baker (Labour), Aileen Campbell (SNP), Bruce Crawford (SNP), Margaret Curran (Labour) Cathy Jamieson (Labour), George Foulkes (Labour), Murdo Fraser (Tory), Christopher Harvie (SNP), Alex Johnstone (Tory), John Lamont (Tory), Stewart Maxwell (SNP), Tom McCabe (Labour), John Farquhar Munro (Liberal Democrat), Hugh O'Donnell (Liberal Democrat), Shona Robison (SNP), Shirley-Anne Somerville (SNP), Jamie Stone (Liberal Democrat), John Swinney (SNP), Jim Tolson (Liberal Democrat), Andrew Welsh (SNP), Karen Whitefield (Labour), Elaine Smith (Labour), John Wilson (SNP), Jim Hume (Liberal Democrat), Jack McConnell (Labour).