"Historically the SNP has had an aversion to debate..."

In a recent post on his blog, Gerry Hassan reproduces Michael Gardiner's review of Hassan's edited collection of essays, The Modern SNP: From Protest to Power (2009). This passage struck me, and set me thinking:

"Analysing the relationship between emotional and political nationalism, Hassan also persuasively describes how the Party have used the failures of New Labour as in a previous era they did with Thatcherism. He charts, as do others here, the movement from amateur group to pragmatic political party, and a rise to power despite the lack of a mass membership and a difficult relationship with its intellectual supporters such as Tom Nairn and Neal Ascherson. Indeed there is some debate here about how intellectual SNP supporters are – they tend to be highly educated, but as Stephen Maxwell and others point out, historically the party has had an aversion to debate..."

Some might well suggest that SNP claims that we're for Scotland lacks ideological definition. Surely the vital question is, what sort of Scotland are we for? We shouldn't be too impatient about this, as the idea of promoting Scotland's interests, whatever ideological prism those interests are refracted through, says something significant about the party's priorities. The phrase may be problematic, but it is not empty. For example, the new Tory-and-friends Westminster government have been making extensive use of the phrase that given reforms or spending cuts are in the national interest. Such arguments are best approached, I'd suggest, as alternative, coherent, accounts of what constitutes "the national interest".  We shouldn't waste our time arguing about who has got a real or accurate vision of that interest. No external definition will be forthcoming. Rather we ought to recognise that within the United Kingdom, Scottish nationalists disagree with Unionists about what the national interest amounts to. Diverging on these basic presumptions, but sharing a political vocabulary, it is all too easy to enter into redundant arguments where we talk past one another, hardly recognising the other party's differing premises. Noticing that we part ways early on - in the definition of apparently straightforward phrases - is a vital precondition for meaningful debate, if we are not to get lost in a redundant linguistic argument about the definition of terms.

Disagreement within a party is inevitable. I've no interest in being part of an outfit which seeks to discipline its supporters into uniformity. However, when a single soul simultaneously expresses two incompatible positions - that is not internal debate, but naked incoherence. A man for all seasons is too easily just a say-anything charlatan. Or an idiot.  Some of you may disagree, but I'd suggest that this is doubtlessly a recognisable tendency in some Scottish Nationalist circles - broadly equivalent to those post-ideological, market-drunk Tories who bluster on in the House of Commons about common sense, who furnish a blazing confirmation of the idea that nothing is more ideological than the creature who cannot recognise the extent to which this common sense is governed by submerged ideological commitments. The gormless, problematic, dimension of this we're for Scotland rhetoric, is that some of its proponents appear to believe that all the ills of the world are generated by the Union establishment, and a clean excision from that Union entails a wholesale rehabilitation of the Scottish body politick. This is clearly inveterate nonsense, which misses the inevitable (and appropriate) ideological political content of identifying, reconciling or promoting particular political interests. Like the poor, political dissonance is always with us. It may be displaced, but it cannot and should not be attempted to be suppressed.  Governance by a minority SNP administration has not helped in this respect, arguably reinforcing the strict discipline of party in the teeth of a united opposition, resulting in an over-sensitivity to dissent and a tendency to support the party orthodoxy. Conceived as sorely embattled by Scotland's Union-skewed press, we should form up behind Salmond, stow our doubts and complaints - and focus on sticking it to Labour. This approach may be understandable, but it isn't particularly appealing, admirable - or I'd suggest - even productive in the longer term.  Unhappily, the tendency will be aggravated by the promise of an imminent election, where supportive souls are well advised to fall loyally and quietly in line.

For example, Iain Gray has made great play of mocking the bendability of Salmond's arc of prosperity.  Striking a more sober note, Alex Massie has suggested that Alex Salmond was another loser as a result of the Irish economic predicament.  This is clearly not a sin limited to the SNP, but it is ludicrous to claim that it does not have significant implications for the sort of nationalism we are envisaging and that Salmond doesn't have serious questions to answer on this score. It is all very well to say that Georgie Osborne made the same missteps and misjudgments. It is not, I'd suggest, a final or fatal rebuttal of Scottish nationalist arguments, nor is it an impressive defence of continuing participation in the Union. However, it is surely a question which deserves more pensive consideration that defensive globe-trotting huff-puffery, which largely ignores the ideological and political choices which separate Ireland from Norway and between which an independent Scotland would realistically have to choose. What sort of state should an independent Scotland be? What sort of values should it pursue? I don't think it is particularly unfair to suggest that, like others, the SNP haven't remotely begun to  think through - never mind answer - these thorny questions.  Are we seriously suggesting that there is no discussion to be had, no questions to be asked?

Similarly, I'm getting a mite fed up of the extent to which certain SNP figures employ the distant prospect of independence to serve as a mechanism to de-politicise contemporary political problems or contradictions, by deferring them until that independent future, in which we are reassured they could be unproblematically reconciled. I've previously taken the Maximum Eck to task for his lamentable incoherence on the question of European Convention of Human Rights.  Last week in Holyrood, Kenny MacAskill gave a bravura nonsense performance on the Cadder judgment in a similar vein, the significance of which the press seems largely to have missed. Early next week, I'll be taking a look at MacAskill's remarks in detail and shan't be forgiving.  My sense is that it is vital to get away from the defensive attitude that you are either for us or against us, all or nothing. It is all very well, when faced with ones own inadequacies, to point to the clear deficiencies of the alternative options, whether that is Labour, the Liberals, the Tories. It seems to me, however, that exchanging motes for beams gets us almost nowhere. Time, I'd suggest, to change the historical legacy Gardiner identifies. All of us who are sympathetic to independence have cause to seriously reconsider the political limits of the SNP's tendency to assume the character of everyman Nationalism, which all too often feigns to face every which way simultaneously, and hopes nobody notices. It is time, I'd suggest, to start taking the question I opened with far more seriously. We know that the SNP is for Scotland. What we want to know is, what sort of Scotland are we for?

After Dunblane: Of Scotland & guns...

It was impossible, hearing the early and developing details about a shooting in Auchinleck Academy, not to fearfully summon up the awful shades of Dunblane Primary School, where sixteen children and a teacher were killed on the 13th of March 1996. Although we will all be familiar with tragic incidents where airguns have killed people in the past, often the young, it was at least partially reassuring to hear that a more powerful firearm had not been fired in Auchinleck. According to press reports, injuries appear to be widespread, but comparative light. Such incidents have an inevitable tendency to provoke more general reflection. What is the nature of criminal firearm usage in Scotland? Can anything informative be said? What about airguns? There has been continuing political pressure to devolve the regulation of airguns to Holyrood, with various parties expressing specific intentions to outlaw their possession. Do the figures speak to the importance of such a political enterprise?

Attentive regular readers may recall that in my overview of the Government's Homicide in Scotland 2009-10 statistics, I noted that only two people were killed in that year as the result of firearms. Two. In total. Earlier this year, I compared our homicide statistics to those of the American State of Arizona. The comparisons are stark, not least because we are all all too familiar with the (admittedly problematic) international comparisons, which are suggestive of Scotland's comparatively high murder rate per capita. I don't want to look into the methodological whys and wherefores on that issue. However, in the light of the incident in Auchinleck, I thought it might be of interest to take a closer look at the statistical bulletin Recorded Crimes and Offences involving Firearms, Scotland, 2009-10, published by the Scottish Government last October. One could approach these figures in a number of ways. I'm conscious, for example, that on one approach, you would be more interested in any trends over time which the data discloses, as opposed to the isolated results for any given year. However, this isn't a scholarly review of literature, but an rough and ready attempt to afford a snapshot of what government statistics might be able to tell us about the incidence of gun crime in Scotland. My sense is that our perspectives on guns are often informed by (justly) outraged coverage of particular incidents and a wider social and political atmosphere which is significantly informed by the American experience. Heeding our own statistic seems like a good starting point, to come to a clearer understanding of what we're talking about when thinking about firearms in Scotland.

In a smallish jurisdiction of over 5 million souls, brute numbers are probably more illuminating than percentages. Last year, 839 firearm offences were recorded in Scotland, however these numbers include a range of courses of conduct, from unlawful possession of a firearm to their fatal use, from airgun property vandalism, to gunshot wounds which inflict permanent injuries. Interestingly, of the 839 total offences recorded last year, only 519 involved incidents where firearms were actually fired, some 61.9% of the total. 154 caused injury or death, some 30% of incidents where a firearm was actually fired, only 18.4% of all firearm offences recorded (but critically, see the following section for the distribution). In 2009-10, 176 offences caused damage to property, while in 185 cases no injury or damage was caused to man or property. Although left unfired, firearms were used to threaten in 217 cases last year, while 12 firearms were - I kid ye not -  employed as blunt instruments. That said, the numbers have varied significantly over recent years, as this table ably demonstrates.

On homicide...

As I've already noted, in 2009-10, two recorded homicides were attributed to firearms. Over the last decade, the highest number of firearm homicides in any year was eight, which occurred in 2004-05, 2005-06 and 2006-07 respectively. Over the decade, two represents the lowest number of deaths from gunshot wounds. Only two people were killed by guns last year, in 2008-09 and in 2003-04. Over the last ten years, 45 individuals have been unlawfully slain by firearms in Scotland.

Attempted murder...

Not every bullet finds its mark, while improved medical techniques can save those who might previously have perished from their injuries. Equally, to purposively pull the trigger of a primed shotgun aimed at another human being arguably demonstrates a murderous wicked recklessness, given the potency of the instrument, whether or not a single pellet rends the target. Last year, there were 11 recorded cases of attempted murder using a firearm in Scotland. Two of these cases involved a gun being fired, but resulting in no injury. The remaining nine cases resulted in injury, but clearly did not bring about the death of the victims. This again is a decade long low. Since 2000-01, the peak was recorded in 2006-07: with 43 attempted murders by firearm. Between 2000 and 2010, this amounts to 264 attempted murders using firearms, a rough annual mean of 26.4.

Serious assaults...

The bulletin reveals that 19 "serious assaults" were recorded in 2009-10. The statisticians define an assault as serious:

"...if the victim sustained an injury resulting in detention in hospital as an in-patient or any of the following injuries whether or not he was detained in hospital: fractures, internal injuries, severe concussion, loss of consciousness, lacerations requiring sutures which may lead to impairment or disfigurement or any other injury which may lead to impairment or disfigurement."

Since 2000, the number of recorded serious assaults has varied significantly. The highest number was recorded in 2003-04, 67 serious assaults. The lowest number recorded was last year, only 16. The numbers of recorded serious assaults across the decade appear somewhat volatile, as the following graph rather neatly demonstrates. Click on the image for a clearer view.

Other offences...

The most common offence recorded is reckless conduct with firearms, of which there were 196 offences recorded in 2009-10. The second most common offence was for minor assault, which numbered 164 last year, 91 robberies and perhaps surprisingly, 95 cases of gun-related vandalism. As you can see from this detailed decade-long table, the number of recorded offences which do not result in injury or death have been notably unstable over the years. I was particularly interested by the data on proportion of total recorded offences involving a firearm. The report notes that:

"The use of firearms in criminal activity constituted only a small proportion of all offences recorded by the police in Scotland in 2009-10"

For example, only 2.5% of recorded homicides, 2% of recorded attempted murders and 3.6% of recorded robberies and 0.5% of recorded vandalism, serious and minor assaults involved the use of a firearm. All of which combines to pose an elementary question - what sort of firearms are we talking about here? How prevalent are airguns? To what extent are other blunderbusses or flintlock muskets implicated? How are offences distributed?

Offences by main type of firearm used...

Overall last year, across all offences, shotguns were identified as the main firearm involved in the offence in  4% of cases (31 cases), rifles in 1% (6 cases), pistols or revolvers in 13% (109) and air weapons in 51% of cases (426). Use of imitation firearms amounted to 6% of the total recorded, (53) while 8% of weapons were unidentified, while "other" firearms accounted for the remaining 17% of recorded offences. 

This is broken down somewhat, in the section on offences by type of firearm recorded, and how it is used. For example, of the two cases where the firearm was fired and caused a fatal injury, one was as the result of a shotgun, the second gun was of unidentified character. Of the 152 cases where a gun was fired, causing an injury, shotguns accounted for seven offences, pistols and revolvers for four, air weapons for seventy eight, five by unknown firearm, fifty seven by some other gun, while imitation firearms accounted for one (although I do wonder how the devil this was affected...) If clubbing the buggery out of a foe with the butt of your rifle is your thing, you have a small number of compatriots in the venture. You will recall that guns were used as blunt instruments in twelve cases. The breakdown is a bludgeoning administered by one shotgun, five pistols or revolvers, two air weapons, one imitation device, two unidentified and one other. Where guns were unfired but employed to threaten, 32% of cases involved revolvers or pistols, closely followed by 23% where airguns were flourished in an aggressive manner.

Where do firearm offences happen?

The statistics are broken down by the eight Scottish police force areas. Both firearm homicides took place in Strathclyde, as did eight of the eleven attempted murders last year. The remaining three occurred in Lothians and Borders. Similarly, 18 of 19 serious assaults took place in Strathclyde, 78 of 91 robberies in Scotland involving firearms. Interestingly, cases of firearm vandalism dominatingly hail from the Lothians, where 79 of 95 cases occurred. Reckless conduct with a firearm offences took place in all police forces (43% of which were recorded in Strathclyde, 21% in Lothians and Borders). More minor assaults occurred in all of the police areas, Grampian excepted. On an even more micro-level, something can be said about the actual sites where firearms were deployed. Across all offences (839), a small number seem likely to have been traditional "heists": 4 offences occurred in post offices, 7 in banks or building societies. 275 took place on public highways, including roads or footpaths, 16 in schools or colleges, 3 in places of public entertainment and 255 in other locations. 277 offences took place in homes and dwellinghouses. Perhaps the most fundamental question, I keep for last. You will, I think, be rather shocked at the answers... 

Who suffers? Who are the Scottish victims of firearms?

This is pretty appalling. The statistics identify a total of 154 victims of injury or death as the result of firearms last year. 64% of victims were aged under 21 years of age. 68 individuals, or 44% of the total, were aged younger than 15 years of age.

Who are their assailants?

48% of those identified and accused by the police of committing an offence were under 21 years of age in 2009-10.  Just under a quarter of the number of total number of main accused persons were under the age of 15, 188 of a total of 508 main accused persons in 2009-10 or 23.2% of the total accused persons.

These are just a few of the details which can be pulled from the statistical material. Examine it in full for yourself here.

Edinburgh's viscid troika admonished...

Tree-hugging, most of us will be familiar with. It calls for at least one ripe, stout-trunked sprouting plant and minimal irony or self-consciousness. The young, not to be trammelled by the frontiers of their parents, feel an inevitable pressure to innovate. In his gauche way, David Cameron's hug a hoodie proclamation spoke of his generation's longing for physical proximity - the political power of an embrace, however unwelcome. As I reported in January, today's environmentally conscientious youth have embarked on a concerted campaign of countinghouse-clinches, treasury-tweaking and semi-licit bank-squeezing. The pioneers of this not-for-profit venture are the soi-disant "Superglue 3", who sought to draw attention to the Royal Bank of Scotland's funding of tar sand oil extraction by supergluing themselves to the door of Edinburgh's Nicolson Street branch. In this mission, they were assisted by a ragbag band of baby-faced troubadours and semi-rhythmic wagglers, lurching to the strains of a doggerelised version of Lady Gaga's Pokerface. This viscid troika would be of minimal interest to Scots lawyers, had the procurator fiscal not decided to proceed against them in Edinburgh Sheriff Court, libelling a breach of the peace. You can inspect the locus in quo for yourself in this video footage from the not-really paralysed financial scene:

Is gluey hindrance of the ingress and egress of the lieges from a banking establishment “conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community”? Sheriff Neil MacKinnon certainly thought so, holding that their conduct amounted to a breach of the peace and advising them that:

" ... members of the public go to their bank to deal with matters of finance, private or personal, and it is unsurprising that your actions provoked not only irritation but anger."

Shrieval mercy was forthcoming, however, and the three were simply admonished, meaning that their conviction will be recorded but no fine or other penalty is to be imposed. A critical precedent in the annals of Scots criminal jurisprudence it might not be, but for those of you who have been harbouring a secret desire to affix yourself to Scotland's civic buildings and business establishments - take note. 

Penfold folds, Aitken goes.

"

"I deeply regret allowing myself to be misrepresented by resorting to crude linguistic constructions to express my opinion on this case, and lament that there are people in our media who will, without conscience, maliciously employ the definitions and general sense of the so-called "words" which I used, viciously to distort my real unexpressed position. The dogs." ~ Bill Aitken, condensed.

Blame it on my legal education, but I've little patience with unsubstantiated allegations of distortion and misrepresentation.  It strikes me that if one had a good argument that a statement had been decontextualised so as to rob it of its intended meaning - for example, by omitting a particularly odd question which solicited it, or qualifying introductory or surrounding phrases - one should be able clearly to identify the relevant passages, and the sleekit trimming. Perception categorically isn't all. Bill Aitken disagrees and determined to resign his convenorship of Holyrood Justice Committee yesterday afternoon with as little grace as possible. Aitken pulled a "poor me" pachyderm farewell, arguing that he had been stitched up by the meeja. In his statement, he suggested that:

“... by asking a journalist by way of background during his inquiry to me, about the circumstances of a particular case I left myself open to misrepresentation. That is my fault and that is why I immediately issued a full and unreserved apology for any misunderstanding or distress it caused.

“Unfortunately, the newspaper chose not to publish my full statement. It also decided not to publish any quotes from my second telephone call from the journalist during which I made my position clear. I leave it to others to comment on these facts and the reporting of a background conversation.

“But, however unfairly, an impression has been created that I hold certain views about rape...”

Certainly, the Sunday Herald didn't quote the whole transcript, but if we assume the document acquired and published by the New Statesman last week was accurate - which I note Aitken artificially ignores and does not dispute - their selectivity hardly exculpates the Everlasting Baillie. The impression left by his remarks, contextualised in a casual conversation, is arguably much more damning than than floating text of the original Herald article. Aitken clearly feels that to pose a question signifies nothing. It is simply a solicitation for information. Since he cannot recognise the views being imputed to himself, he concludes that he has been a victim of distortion. Clearly, the significance of his immediate, unilateral scepticism about and emphasis upon complainer is entirely lost on him.

Gender & the latest Ipsos-Mori poll...

Maximum Eck at surf, courtesy of the Scottish Government

A certain opinionated Burd has an excellent post, arguing that "Holyrood won't be over until the ladies sing". Regular readers will know that I have an abiding interest in the role of women in Scottish politics and with May's approaching election, a heightened curiosity about the voting intentions and behaviour of my female fellow Scots. Although  the effectiveness of political strategy may be rather like  the riddle of silence - name me and you shall break me -  I'd submit that there are clear signs that SNP are showing a heightened interest in the gendered dimension of their communications and are seizing opportunities to emphasise this. Of late we have heard encouraging noises from Alex Salmond about Scotia's damsels, whether that involved web-chatting with Mumsnet, emphasising the importance of his female relationships on Desert Island Discs, or seizing the opportunity of Liz Lochhead "Makaration" to make some positive observations about the too often neglected literary voices of Scotland's women. Clearly, such such crotchets do not a melody make, but in their small way, they contribute to the background atmosphere in a way that is not unimportant or incidental. While Kate focussed on the SNP/Labour factor, I thought it might be useful just to tease out in raw numerical terms what the latest Ipsos-MORI poll has to say about the broader gendered differences in responses recorded. I covered the poll's more widely discussed topline figures in a post last week.

On first constituency intentions, amongst those certain to vote...

• SNP ~ Men 32% Women 24%
• Labour ~ Men 26% Women 29%
• Tory ~ Men 11% Women 7%
• Liberal Democrats ~ Men 5% Women 9%

On first constituency intentions, amongst all respondents...

• SNP ~ Men 42% Women 33%
• Labour ~ Men 32% Women 40%
• Tory ~ Men 15% Women 11%
• Liberal Democrats ~ Men 7% Women 12%

On second list voting intentions, amongst those certain to vote...

• SNP ~ Men 39% Women 31%
• Labour ~ Men 27% Women 39%
• Tory ~ Men 16% Women 10%
• Liberal Democrats ~ Male 9% Women 11%
• Greens ~ Male 5% Women 7%

On second list voting intentions, amongst all respondents...

• SNP ~ Men 37% Women 31%
• Labour ~ Men 31% Women 38%
• Tory ~ Men 14% Women 12%
• Liberal Democrats ~ Male 9% Women 11%
• Greens ~ Male 4% Women 6%

Are you satisfied or dissatisfied with the way Alex Salmond is doing his job as First Minister of Scotland?

• Satisfied ~ Men 56% Women 46%
• Dissatisfied ~ Men 34% Women 35%
• Don't know ~ Men 10% Women 19%

Are you satisfied or dissatisfied with the way Iain Gray is doing his job?

• Satisfied ~ Men 32% Women 34%
• Dissatisfied ~ Men 41% Women 28%
• Don't know ~ Men 27% Women 38%

On the issues, what is the "most important issue facing Scotland today?"

• Economy/economic situation/credit crisis/crunch ~ Men 29% Women 21%
• Unemployment/factory closure/lack of industry ~ Men 25% Women 22%
• Education/Schools ~ Men 6% Women 10%
• Scottish independence/constitution/devolution ~ Men 8% Women 5%
• NHS ~ Men 3% Women 6%
• Crime/law & order/violence/vandalism/anti-social (yob) behaviour ~ Men 2% Women 4%
• Public spending cuts ~ Men 2% Women 4%
• And so on...

Combined results of most important issues and other "important issues facing Scotland today?"

• Economy/economic situation/credit crisis/crunch ~ Men 42% Women 30%
• Education/Schools ~ Men 25% Women 35%
• Unemployment/factory closure/lack of industry ~ Men 31% Women 26%
• NHS ~ Men 16% Women 26%
• Public spending cuts ~ Men 17% Women 20%
• Crime/law & order/violence/vandalism/anti-social (yob) behaviour ~ Men 12% Women 14%
• Scottish independence/constitution/devolution ~ Men 11% Women 6%
• Environment/climate change/global warming/pollution ~ Men 5% Women 6%
• Housing ~ Men 3% Women 6%
• And so on ...

Aitken indicted in Holyrood...

Oh crumbs, chief. The Sunday Herald reports this morning that Glasgow Green MSP, Patrick Harvie, will be tabling a motion when Holyrood reconvenes tomorrow, calling for Bill Aitken to resign as convenor of the parliament's Justice Committee. Harvie's draft text reads as follows:

Unacceptable comments by the Convenor of Justice Committee -

That the Parliament condemns the attitude shown by Bill Aitken MSP on the subject of rape during a recent interview with the Sunday Herald newspaper; considers that Mr Aitken’s comments during this interview betray a disregard for the seriousness of rape, and imply support for the view that a victim can be held responsible for this most vicious crime; believes that this view, though disturbingly widespread, is rooted in misogyny and ignorance; considers these comments to be incompatible with the role of Justice Committee Convenor; believes that the Parliament’s credibility to deal proactively with issues of sexual violence would be undermined if the proximity of dissolution resulted in failure to hold Mr Aitken to account for these odious and shocking comments; and calls for Mr Aitken’s immediate resignation.

I blogged about Aitken's appalling remarks about the Glasgow City Centre serious sexual assault earlier in the week, echoing calls made by others for Baillie Bill to step down.  In the alternative, if he would not relinquish the chair, I argued that his fellow parliamentarians should be called upon to pry the committee convenorship from him. My guess is that this development leaves the Tory Penfold impressionist thoroughly unstuck.  Aitken's ousting is richly merited. On the off chance that anyone has not read Aitken's immediate response to the gang rape when interviewed by a Sunday Herald journalist, the transcript of the impugned conversation can be read at the New Statesman. That being forced from the office would result in an ignominious end to his parliamentary career should not dissuade our MSPs from being active in its prosecution. The comments were grossly unacceptable and it would be an extraordinary situation if the imminent end of the parliamentary term and Aitken's departure from Holyrood was taken to justify inaction against him. Helpfully, the Herald doesn't appear to be carrying the relevant article online.  Being furth of Scotland myself and insufficiently keen to maintain a subscription, no paper copy of the Sunday Herald was to hand. Owing to the kindly intercession of Green presser and Better Nation blogger James Mackenzie, however, a snapshot of the article can be read below.

Judicial quotation of the week...

Eccentric litigants seem to have been keeping their futile but entertaining petitions from the doors of Scotland's appeal courts of late. The dearth may now be lifting. Idly fumbling through the electronic annals of Parliament House, the humble case of Daniel Cox v. Procurator Fiscal, Aberdeen caught my eye. The details themselves are perfectly quotidian. Mr Cox was convicted of driving at 49 miles an hour in 30 mile per hour zone by the Aberdeen Justices of the Peace Court. He received three pips on his driving licence and was fined £250. Clearly not a fellow to pinch his nose and swallow his legal medicine, Cox appealed his conviction on the basis that old peculiar of Scottish evidentiary jurisprudence, the corroboration rule.

Contended Cox, the accuracy of the Unipar SL 700 laser speed detection device had to be spoken to by two independent sources of evidence. Here is where things got trickier. The Procurator Fiscal relied on the evidence of two police officers who had carried out certain checks on the instrument before mounting up and scourging the Granite City for Mr Toad impressionists. They reassured themselves that the laser alignment was functioning properly by opening fire on a blameless nearby lamp-post.  The range, they tested by employing the instrument to measure between two settled pre-measured points in the police garage, thirty metres apart, Finding that the particular device was functioning properly, the polis thought nothing more of the matter. Cox had his doubt. How did they know that points A and B in the garage were 30 metres apart? Only one of the police officers had been involved in measuring the distance, but that was some time earlier. What if some cruel faerie or mischievous goblin had been capering about in the garage the night before, maliciously altering the distance between the two points? What if the surface of the earth had - in an astonishing coincidence - contracted between A and B and the device simultaneously inaccurately mismeasured to the same degree? Cox insisted that that measurement ought to have been corroborated and that by dint of not having been, he should have been acquitted on the basis of an insufficiency of evidence.

The Court reminded us of a case from 1957 and the somewhat less technologically sophistical procedure employed by the polis at that time to see if vehicles vrooming in excess of the speed limit. In Gillespie v MacMillan a speeding motorist's appealed against his conviction. In the opinion of the Court, Lord Hardie expounds:

"... the methodology adopted at that time did not involve the use of approved devices but rather the use by a police constable at each end of a measured distance of a stopwatch, the issue for the court was similar to the issue in the present case. The contention of the appellant in that case was that there was not sufficient evidence in law to warrant the conviction of the appellant, since the exact moment of entry into the measured distance was spoken to by one witness only, as was the exact moment of exit from the measured distance, and that each of these two events must be proved by two witnesses."

Gone are the days when police officers had to know their speed = distance / time.  In the event, Cox was unable to persuade the bench that range-accuracy of the instrument was required to be demonstrated by corroborated evidence, so he'll have to fork out his £250 and thole his three penalty pips. In its reasoning, the Court quoted these pungent phrases from Lord Justice Clerk Thomson's judgment in Gillespie:

"If law were an exact science or even a department of logic, there might be something to be said for this argument. By relying on the disparate qualities of space and time the logician can prove that in a race the hare can never overtake the tortoise. But law is a practical affair and has to approach its problems in a mundane common-sense way. We cannot expect always to have a tidy and interrelated picture; in real life a surrealistic element is apt to creep in, and the picture, though untidy and inharmonious may be a picture all the same." Lord Justice Clerk Thomson in Gillespie v. MacMillan 1957 JC 31, 40.

A rare example of Scots legal poetics?

Aitken out...

In Holyrood's stage 3 debate on the Criminal Justice and Licensing Bill last summer, Baillie Bill Aitken's contribution prompted guffaws. The Official Report records the laughter of his colleagues. I dare say the man himself chose his words with a certain degree of levity, but his comments struck me as expressing something quite fundamental about  his self-image, how he regarded himself.

Bill Aitken: As a young man from a poor area of Glasgow, I had many friends in low places and got to know the criminal mindset. [Laughter.]

The Presiding Officer: Order.

Bill Aitken: That impression was confirmed when I sat on the bench and has been reinforced by discussions with criminal lawyers in Glasgow. For a troublesome and small minority, prison is the only thing that will work...

I have also noted with human interest how Aitken conducts himself in the Justice Committee, with advocates and lawyers and judges. He has a tendency to fawn deferentially to judicial figures. He is always at pains to employ the appropriate legal terms. With Aitken, these terminological exactitudes always struck me as bearing a certain show of deliberation. They are not casual references to known facts, but something he clearly regarded it as crucial to get right, to talk about things in the right sort of way, showing himself to be the right sort of person. He speaks like an anxious insider, uncertain of his status. Nor does it seem incidental that Aitken played m'lud in the justice of the peace court. He bears all the hallmarks of a frustrated would-be lawyer, who pursued a political career at the expense of a longed for judicial one. Aitken's cynical wordliness is premised on what he no doubt takes to be a tough, realistic, no-nonsense attitude towards life. He is unsympathetic. Unlike his colleagues on the bench, who were taken in by all those villains who are at it, JP Aitken saw clearly, shrewdly. On some level, he identifies with the villain. He is not sentimental. I can distinctly imagine him sentencing a man to death, with a grim twinkle in either eye. In his respect, these features are redolent of the qualities ascribed to Scots judges in their hanging days - gruff Lord Braxfield and even the philosophical Kames (Aitken albeit without the learning of either gentleman in the tricky business of the Corpus Iuris Civilis).

But enough with the background Aitkenology. These features of his character and self-understanding, emerge strongly from the appalling transcripts of the Sunday Herald journalist's interview with Aitken, published in full on the New Statesman website. The dirty minded bluntness, the knowing doubts, the self-flattering scepticism of a man of the world, who knows about these things and isn't hoodwinked by bints in alleys. The conversation is annihilating for Aitken's credibility. All the more because it reads like a relaxed expression of the views of a man who thought he was off the record, and that nothing he has said could prompt complaint.

Doubt is not in short supply in our institutions of public justice. It is an elementary principle of our criminal law that to convict, the prosecution must prove their case beyond reasonable doubt. In the name of doubt, we maintain laws of evidence which do not even allow many cases to be put before juries and judges to decide. To this appalling weight of doubt, Aitken thoughtfully contributed his own, immediately, unprompted. His first, spontaneous response to news of a violent gang rape was to begin cross-examining the testimony of the victim. His second, unprompted response to the story was to focus on the circumstances of this gang rape, unilaterally implying a background of prostitution, knowingly adding "there's a lot more to these city-centre rapes than meet the eye". As other bloggers have noted (cf Grace Murray on Bella Caledonia), Aitken's remarks reflect  two well-documented tendencies in the discussion of rape. Firstly, respond with immediate, uneven and unjustified suspicion towards the victim. Secondly, from the limited facts available, strongly emphasise those facts which impute some degree of responsibility to the victim and purport to undermine their moral stature. What was she doing in Renfield Lane? Where had she been? Did she go with somebody? These are the first questions which occur to you, Mr Aitken? You hear tell that a women has been outrageously sexually assaulted in public, and these are the first words you stammer out? 

I agree with the Corbie's conclusion. As convenor of Holyrood's Justice Committee, parliament reposes a measure of trust in Bill Aitken. This terrible conversation cannot but deprive him of that trust. He must be pried from his spot as Convenor of Justice Committee. If Annabel Goldie will not be the iconoclast, then Parliament must do so for her. If she will do nothing? On her head be it...

SNP whisker ahead in Holyrood poll...

Fortune is a pucker-faced old beldam. Just as a peaty jaunt is indicated, she brings gifts, with a goading wink and a rotten, amorous smile. This morning, our abacus-wielding friends in Ipsos-MORI have published the anticipated February round of their Scottish Public Opinion Monitor. The top line data is now available here. Unfortunately, the detailed numbers are not yet available. Happily, the detailed computer tables have been published, disaggregated by age, gender and many of the other old familiar social categories regular readers of such polling will be familiar with. The report runs to 119 pages and ranges far beyond the party political keynotes, noted below. Questions include respondents' apprehensions about which are the most pressing matters of public concern. Unfortunately, however, I still don't have the immediate time to take a detailed look at what this poll might imply for my particular bugbear: women's voting intentions, the SNP and the gender voting gap. As you will recall, the last Scots poll presented a decidedly bleak picture for nationalists on that score. Clearly, these findings seem much more encouraging. As those of you who purchased a copy of the Times this morning or who pay your Murdoch tariff will know, the top line voting figures, amongst those certain to vote were as follows...

In Holyrood constituencies...

• SNP 37%
• Labour 36%
• Conservative 13%
• Liberal Democrat 10%
• Greens 2%
• SSP 1%
• Other 1%

On the Holyrood list, amongst those certain to vote...

• SNP 35%
• Labour 33%
• Conservative 13%
• Liberal Democrat 10%
• Greens 6%
• SSP 1%
• Other 2%

Asked, Are you satisfied with the way Alex Salmond is doing his job as First Minister? Respondents said:

• Satisfied 51% (54% November 2010)
• Dissatisfied 35% (37% November 2010)
• Don't know 14% (9% November 2010)

Same question(ish), on how well Dame Bella of Doily is doing "her job"...

• Satisfied 32% (37% Nov '10)
• Dissatisfied 30% (36% Nov '10)
• Don't know 38% (26% Nov '10)

Same question on the efficacy the Snark, LOLITSP...

• Satisfied 33% (39% Nov '10)
• Dissatisfied 34% (24% Nov '10)
• Don't know 33% (27% Nov '10)

Same question on Tavish Scott (who still resists a satisfying satirical alternative name...)

• Satisfied 26% (31% Nov '10)
• Dissatisfied 34% (35% Nov '10)
• Don't know 40% (34% Nov '10)

Take a look at the Ipsos-MORI figures for yourself here.

All's quiet on the peaty front...

According to one learned diviner, the earth's shoogly orbit has skewed human perceptions of the Zodiac. Forlorn Geminis and Leos all across the land are seeking tea and sympathy as a result of their emotionally bruising "Cancer scares".  Others fear that tepid waters are growing warm, and cold waters are heating up. Hot air is endemic. Disordered nature wreaks her vengeance, her placid expression unmoved. Even those of us in the peat worrying business are not unaffected by these shifts in our disordered Nature.  Although traditionally, the Scottish Peat Worrying Season opened on the “Glorious Sixteenth of May” with hullabaloo, ballyhoo, dwam and dram - this year the ancient lowland peat-stained rituals are beginning almost a month earlier. 

Donning my Tweed pheasant-feathered bunnet and plus fours; tarasgeir, tusker and flaughter stowed under oxter, propitiatory googas gralloched; jelly pieces and a bumper o’ tappit hen broth tucked in my satchel - I'll be filling my bothie with peat-heat and Islay savoured smoke for the main part of this week. The technical term for this subset of traditional lallands activity is finnanhaddification. Although I am authoritatively advised that the technique is originally of 15th Century Celty-Pictish origin, it was popularised in Victorian times amongst pipe smokers who didn't fancy loafing about and slurping the foul-tasting waters in frou frou Spa towns. I anticipate that the expectorate virtues of this operation will lend my voice a exaggerated stentorian gravity and stain the old phizog a healthy deep mahogany. My bothie not boasting wireless connectivity, blogging shall be light to non-existed here this week. Tally-ho!

Read more...

Souter's lolly ...

In a debate, there are few things more discombobulating that seeing someone advocating something you agree with, relying on arguments which you find disagreeable. Really, this phenomenon shouldn’t surprise us. Many roads lead to Rome, after all. In recent public policy terms, perhaps my favourite example of this awkward meeting materialised in the deliberative context of the Sexual Offences (Scotland) Act 2009. Historically, Scots criminal law defined rape in gender specific terms. In law, a man could not be ‘raped’. Until the Act of 2009 this Common Law position obtained, unreformed. Mooting the uncontroversial proposal to recognise such an offence in the Justice Committee, LGBT groups referred to such ideas as equality and the significance of naming for the recognition of the suffering of victims, in calling for reform. The Catholic Parliamentary Office supported this broadened definition of the offence, but cited the belief that anal sex was ‘intrinsically disordered’. The practical outcome was agreed upon, but the reasoning process of the respective parties, justifying this change, was entirely incompatible. This phenomenon is doubtlessly more pervasive than we realise, with  different individuals and groups vying to furnish the authoritative account of why a particular policy is being pursued and why it is a Good Thing.

It occurs to me that there is a second species of awkwardness: where someone you disagree with informs you that he is on your side. Or, as the erstwhile Republican candidate in Delaware for the United States Senate Christine O'Donnell unsettlingly put it, "I'm you". Gulp. I wonder how often red and blue canvassers have heard permutations of racist opinion, to justify supporting a Labour or Tory candidate whose hobbies include explicit or veiled assaults on the numbers or imputed behaviour of "visible minorities". Are you thinking what we're thinking? While my first example focusses on specific debates on particular issues, this second category of angst is a little different, and rather more problematic. Anyone with a modicum of reflection, or who attends even a little to the activities of their party representatives, will find areas of disagreement, terminological objections, alternative priorities and different emphases. This is true within parties as well, as different elements consciously and unconsciously elbow and nudge each other on specific issues of policy and questions of broad emphasis. As a result, if you look to a party's avowed catalogue of beliefs before joining or supporting them, seeking an exact simulacrum of your own commitments, your search will prove fruitless and your ballot paper would be left unscratched. Unless, that is, slavish adherence is your only orthodoxy. Every political serf of that character can find a master to suit his needs.

 

Compromise is inherent in any involvement and identification with a political movement or party, particularly larger and broader political groupings. Whether you are a Labour member, a Liberal Democrat supporter - the flexibility of these identities are largely subjective. Take this commonplace example. Many folk are bemused at the loyalty of Scottish Labour voters - many of them bright, critical folk - who are Gordian-knotted to the party. A familiar explanation for this is tradition, and a reflexive use of the franchise to repeat the old, old rituals of voting Labour. On this explanation, Labour support is depicted as largely detatched from their actual policies and proposals. Doubtlessly, this is an important dimension to the tale, but is not an exhaustive explanation. I heard Bob Holman being interviewed by Richard Holloway on Radio Scotland last Sunday. He spoke of his long term and continuing political commitment to the Labour Party.  I dare say he is very conscious that Labour's approach to public services are not consonant with his own views, yet he persists in supporting them. Another interesting example on that front is the blogger A Very Public Sociologist, who has engagingly discussed the conundrums of being a "socialist in the Labour Party", after leaving the Socialist Party and rejoining Labour. Over at Bright Green Scotland, Adam Ramsay has recently explained why he is not a member of the Labour Party, which touches on similar issues of (a) the muddled priorities of individual and party (b) the problems of political praxis and critically I think (c) the issue of the unrealised potential of pre-existing political movements.

My sense is that I'm socially far more liberal than many of my fellow Nationalists. I am also likely to take a more liberal view when it comes to criminal legislation. It is often suggested that nationalism is the sole SNP party unifier, however, as I've touched on before,  many of the party's supporters (and some of its membership) are undecided on their answers to the ultimate constitutional question.  Even where there is agreement on the raw bones of the party's ultimate goals, there are differences on what strategies should be employed to realise those aims. That leaves a complex image of a party of poised, compromised associations and tendencies. Like most parties. 

That meandering disquisition was largely prompted by an electronic epistle that arrived in my inbox last night from a certain Brian Souter. I had been unaware that we were on intimate, corresponding terms, but the text informed me that he was once again to make a significant donation to the SNP, up to £500,000. Like a number of fellow nationalists, I have certain qualms about accepting such a large donation from Souter, but similarly struggle to see the benefit, to quote the man himself, of telling him that "We're no huvin' it". On the Souter question, a certain opinionated Corbie offers this view and rightly emphasises that many similar issues appear whenever any individual or corporation makes a vast donation to any political party. Jeff Breslin emphasises the impact which a chest full of spendable doubloons has on the electoral fortunes of political parties. In Souter's case, my unease is I think largely attributable to the second model of awkwardness I outlined at the beginning - the implicit, Christine O'Donnellesque implication that Souter looks at the SNP and says I'm You. I totally reject Souter's position on Section 2A (or Section 28, as it was more commonly known), as was. I support eliminating the gender qualifications attaching to both civil partnerships and marriage in Scotland. If I thought Souter was backing Nationalists because he entertained a reasonably held belief that the party represented a vehicle for the persecution of minority sexualities, I'd chop up my SNP membership card whippity quick and hie me to different climes.  However, just as individuals cannot look to parties for an exhaustible mirror image of their own beliefs, we shouldn't make the mistake of thinking that the speculum can be reversed any more readily and that supporters, voters or even members should accept every policy held by the party.  I dare say that some folk will not and have not voted for the SNP on the basis of Souter's significant donations, assuming that for his quid the SNP must give Souter some sort of heteronormative pro quo. That is their prerogative. For my part, I don't believe the motto by their friends shall ye know them is quite as straightforward as it appears and would suggest that it should be understood the wider context outlined above. I'd be fibbing, however, if I said Souter's lolly didn't prompt a pang or two.

Scofflaw, footpad, pirate, shady crook...

Scofflaw, footpad, pirate, shady crook. Thou shalt not vote, recalcitrant. Hie ye back to your cell of disenfranchisement, there to reflect upon the philosophy that the lawless cannot craft laws. Capitis deminutio maxima. Which this House hereby pronounces for doom. 

Tragically, it now seems unlikely that Her Majesty's government will adopt my wizard wheeze to form prisoner constituencies. For my part, I've little vinegar in me for the issue of prisoner enfranchisement. I find the "principled" argument that those who break laws forfeit their rights to participate in legislation to be pretentious and patently a backwards intellectualisation of a previously held position. Love and Garbage put it neatly in a comment on Better Nation. If law breaking is the justification for depriving individuals of their votes, what is the rationale for allowing late night urinaters, spanked by Justices of the Peace, to keep theirs? Although the example is trite, it at least serves to make one thing clear. The delineating concern here is not really one of law breaking at all. Nor am I particularly keen on accommodating folk to the general notion that if you repudiate the social contract, the social compact repudiates you. Others may share my rather shapeless discomfort with such stark exclusionary figurations. Equally, the idea that giving prisoners the vote will have some efficacy as a force for rehabilitation seems equally absurd. Isn't this unnecessarily high flown for what is fundamentally a quotidian question? My answer to that question, left to my own devices, would be to afford all prisoners the vote, enfranchised in a spirit of indifference. As for all of the outraged conscience paraded in Westminster yesterday: be still my throbbing colon. A quick squint through Hansard revealed that no SNP MP spoke in the debate but three of them (Stewart Hosie, Mike Weir and Eilidh Whiteford) supported David Davis' motion:

That this House notes the ruling of the European Court of Human Rights in Hirst v the United Kingdom in which it held that there had been no substantive debate by members of the legislature on the continued justification for maintaining a general restriction on the right of prisoners to vote; acknowledges the treaty obligations of the UK; is of the opinion that legislative decisions of this nature should be a matter for democratically-elected lawmakers; and supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand.

Asked about this last year, Alex Salmond was disappointingly incoherent:

FMQs 23rd of September, 2010

Alex Salmond: The Scottish Government does not agree that convicted prisoners should be entitled to vote while they are serving a prison sentence.

Stewart Maxwell: Like many in the Parliament, I am totally opposed to rapists, murderers and drug pushers getting the right to vote. They have given up their right to participate in decent society by their actions. It is a disgrace that forces outside Scotland are trying to force such a change upon us ...

Robert Brown: The First Minister is missing the point. The UK is signed up to the European convention on human rights, so it is under the obligation to follow the protocol that refers to free and fair elections. Is he not aware that the European Court of Human Rights has made a decision on the matter? Is he suggesting that, if Scotland were independent, it would opt out of the European convention on human rights? What is the Scottish Government's position on that?

Alex Salmond: A couple of things would improve if Scotland were an independent nation. First, we would have the same protection against compensation claims as any other country has at the moment, instead of theoretically being liable for 10 years of compensation claims—members will remember that in connection with another thorny issue. That would be a distinct improvement if Scotland were independent. Secondly, I know that the Liberals are understandably keen on the European Court of Human Rights and the European convention on human rights. However, I cannot believe that, back in 1997 when there was blanket signing up to the ECHR, those of us who argued very strongly that human rights should be observed across the European continent thought that one of the key issues would be to give convicted prisoners the right to vote. For most people, that does not seem to be what we would consider to be an important human right.

Not one of the Maximum Eck's better days, I'd submit. I assume his stumble-mumble point about 1997 in the last paragraph refers to the Human Rights Act, passed by the Westminster parliament in 1998, but it is difficult to tell. As he would assuredly discover if he looked into it, elections were put under the authority of the European Court of Human Rights by the third Article of the First Protocol to the European Convention on Human Rights and Fundamental Freedoms in 1963. It reads as follows, in pompous legal diplomatese:

"The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature"

Politically, I can understand the Scottish Government's position. One might expect signs of sensitivity in the SNP about the soft-on-crime millstone which certain parties are keen to make a necklace gift for them. Moreover, it is a matter for the Westminster parliament, in which the party has only a tiny clutch of votes. Why fashion the projectiles of Labour boors for them? While I thoroughly denigrate Stewart Maxwell's ridiculous little Scotlander bilge, in fairness we should also add the idea that Salmond and Shoal may actually burn hostile to prisoner voting and the calculation I mention is purely a secondary consideration. My sense, however, is that this is a classic example of Eckly weakness when it comes to the future, with the patently implausible reassurance that in Salmond's independent Scotland, we'll discover a land where all contradictions are resolved and what is indissolubly complex shall become simple...

Scotland on ... Sex

Sustained readers will know that I enjoy taking an occasional look at the raft of social statistics commissioned and published by the Government. While the Scottish Householder survey is a particular favourite, in great part because of the quotidian interest of much of its data, the field would not be complete without the Scottish Social Attitudes Survey. Last year, the survey indicated a strikingly lower and falling degree of faith amongst women that they could trust the Scottish Government to make fair decisions.

It also showed that Labour's Salmond slump rhetoric wasn't finding purchase in the minds of the public. On health, for example, of those who believed that standards improved in 2009, 55% credited the Scottish Government with this improvement, only 18% attributing it to Westminster policies. Of those who believed standards in the NHS fell, only 12% blamed the Scottish Government while 41% attributed falling standards to Westminster policies. On the economy, a similar tale was told. The 66% who thought there has been any improvement in the country's economic fortunes attributed this to the Scottish Government, with only 14% attributing positive developments to the UK government. For those who took a negative view of the economy, how blame was attributed was also striking. A slim 7% believed that the Scottish Government were responsible for the diminished economic circumstances, the UK government picked up 38% of the blame, while 44% suggested 'some other reason' was at work behind it.  The results of the 2010 Survey have not been published in their entirety, but this year will encompass the following themes:

Attitudes to discrimination and positive action

SSA 2010 includes a series of questions exploring attitudes to discrimination on grounds of age, disability, gender, race, religion or belief, sexual orientation and gender reassignment. Many of these questions were also included in SSA in 2002 and 2006, so we can look at how attitudes to different groups have changed over time. In addition, the 2010 survey also explores attitudes to different kinds of action government and private companies could take to try and increase equality.

Devolution and attitudes to government

SSA 2010 continues a long-running series of questions on public attitudes to government. These explore issues including political trust and the perceived impact of devolution on Scotland's voice in the UK. The 2010 survey also includes questions (funded by the Nuffield Foundation) on attitudes to options for Scotland's future, reflecting ongoing debates about independence, funding, and the devolution of more powers to the Scottish Parliament. Findings from these questions were presented at a seminar at the Institute of Governance in December. Click here for slides.

Public services

SSA regularly collects views on standards in key public services - including health, education and public transport - in Scotland. The 2010 survey also includes questions on who people think has most influence over local public services.

Social and moral issues

SSA 2010 includes questions on a range of social and moral issues, including: equality; welfare and redistribution of wealth; sex before marriage; abortion; and legalising cannabis. These questions have all been asked before on SSA and are also included in the 2010 British Social Attitudes survey. The findings will compare both change over time and differences in attitudes between Scotland and England.

Plenty of there to interest and when the copies hit the shelves, I shall winnow out bits and pieces  and pernickity detail which I find of particular interest. That said, the Scottish Centre for Social Research, who conducted the Survey, have already published some initial findings in rough and ready percentages. The topic? Scottish attitudes towards sex. Last year, they found the following:

Only 13% think that sex before marriage is always or mostly wrong.

As many as 69% think it is all right for a couple to live together without intending to get married.

Just 36% feel that people who want to have children ought to get married.

As many as 55% feel that contraception should be more easily available to teenagers, including those aged under 16.

A clear majority, 58%, feel that sex between two adults of the same sex is either 'rarely' or 'not wrong at all'. Ten years ago only 37% agreed with these statements.

Ten years ago just over half of Scots (54%) thought that people who wanted to have children should get married. Now only one third of people (36%) think this.

Regular churchgoers, who count for one in eight of all adults in Scotland, do not share the relaxed attitudes adopted by the majority of Scots.

As many as 49% of regular church goers feel that sex before marriage is always or mostly wrong.

69% believe that people who want to have children should get married.

Only 26% say that same sex relationships are 'rarely' or 'never wrong'.

It'll be fascinating to see the full breakdown on this, including the gendered and generational distribution on the issues. As to these brisk percentages themselves, what do you make of them? Shocked and stunned, ladies and gentlemen? Scandalised by this evidence of our permissive society that they used to fear and denigrate in earlier decades? Heartened by this evidence that  attitudes towards queer Scotia may have leavened?

Labour hypocrisy? Gray sidelined? Or daring to disagree...

22nd January 2009; Foreign and Commonwealth Office Submission - Contingency Planning

"We now need to go further and work actively, but discreetly, to ensure that Megrahi is transferred back to Libya under the PTA or failing that released on compassionate grounds."

This sentence from the Megrahi correspondence, released by Sir Gus O'Donnell yesterday, has plainly left Scottish Labour in an awkward position. The Maximum Eck, always one with a lug for a telling phrase, styled it "Labour's organised hypocrisy". On Newsnicht yesterday, the BBC's Isabel Fraser presented Labour's improbable emissary, Richard Baker, with three options. Given their full-throated denunciation of Megrahi's release in 2009, and given the evidence that London Labour and Her Majesty's Government were all for it, was he a hypocrite? Alternatively, were Iain and the Shades of Gray consciously or casually sidelined by their party leadership? Finally, given this evidence - which by the by largely confirms suspicions entertained at the time - would Baker own up to disagreeing with the former Labour Government and turn his slurry-cannon of disparagement over them with the same vim and vigour he and his Gray foreman employed to soak MacAskill? Understandably enough, Mr Baker wasn't frightfully keen to accept any of these options and resorted to stammering, defensive circumlocution, as is traditional. 

So what is the answer? Some preliminaries which we ought to bear in mind. At the time, I expressed some doubts about the idea that all Labour Members (save for the supportive Malcolm Chisholm) wholeheartedly deplored the release. Similarly, I struggled and still struggle to believe that every SNP parliamentarian felt wholly supportive of MacAskill's decision. You will recall that the contemporaneous measures of public attitudes suggested sharp but close divisions of opinion. Wouldn't it be astonishingly improbable, a miraculous coincidence, to discover that those ambivalent public attitudes in the wider population aligned exactly with party political divisions in the parliament? It doesn't seem probable. This, it seems to me, is strongly indicative of the extent to which the subsequent furore was refracted through the prism of party political interest. As a consequence, I'm sure there were a fair few compromised consciences on both sides. Even bearing that in mind, Isabel Fraser's question is clearly pertinent. Here is my sense of things.  

Did Scottish Labour figures know what their government colleagues in Westminster were up to? 

Probably not. 

Was keeping them in the dark politically useful for the Labour Party?

Absolutely. While they may not have been informed about the machinations of the Foreign Office, it was clearly a politically productive ignorance. Baker's protestations that he hadn't the foggiest what his London Labour colleagues views were seems decidedly artificial, and their ignorance must have been an effort of will to maintain. While procedurally appropriate before the decision was made, I find it unconvincing that the Westminster Government maintained its conspicuous silence due to their pious observation of inter-governmental politesse. Qui tacet consentire viditur.

Did Scottish Labour know what their companions thought about it?

Probably not.

Should they have known and been able to deduce those views? 

Absolutely.

Was the failure to discover those views part of a conscious attempt to have it every which way, achieving foreign policy desires while allowing the Swine Purvuiant and the Snark to crucify Kenny MacAskill?

Wi' oot a doot. While the Scottish Labour leadership may have indulged in a species of mental reservation and substantive if not fully conscious hypocrisy, the muteness of their London Labour leaders has no such casuistic excuse. Taken at a party-wide level, the answer to Isabel Fraser's question is likely all three. At the level of Baker and Gray, the indictment is clear. They find the idea of releasing a sick man from prison on compassionate grounds appalling, but are happy to shrug and um and aw when they discover their fellows favoured release, purely for geo-political purposes. Spines suddenly extracted at the prospect of criticising their fellow Labour folk, their furious opprobrium is transformed into floppy diffidence. Colour me stunned. And the upshot? Firstly, this makes it decidedly unlikely that Scottish Labour will attempt make the release into an explicit Holyrood campaign issue, as I once wondered if they might. Secondly, I'm not terrifically convinced that this latest Lockerbie case reappearance will particularly assist the Nationalists, despite casting Gray and Baker and Labour in an unseemly light.  Most folk, I'd submit, are likely to be suspicious  about the idea that a Labour Justice Minister in Holyrood would have been immune to the views of their London colleagues, whether communicated through formal or informal channels. "If I was First Minister..." is an easy phrase to mouth, particularly when you aren't FM.

That said, my suspicion is that of those folk whose votes in May will be determined by the release - and it is difficult to say how many, if any, this might be - will nevertheless focus on the actual decision, which was made by Scottish Ministers. In that general context, remember this Ipsos-MORI poll from August 2010.  Respondents were asked:

Question: LOCKERBIE. Moving on, on Friday, it will be one year since the Scottish Justice Secretary, Kenny MacAskill, announced the release of the man convicted of the 1988 bombing of the Pan Am aeroplane over Lockerbie in which 270 people died. To what extent do you agree or disagree with the decision to release him? Do you..?

1. Strongly agree ~ Total 20%; Men 25%;  Women 16%
2. Tend to agree ~ Total 15%; Men 17%; Women 14%
3. Neither agree nor disagree ~ Total 8%; Men 6%; Women 9%
4. Tend to disagree ~ Total 9%; Men 8%; Women 10%
5. Strongly disagree ~ Total 45%; Men 42%; Women 47% 
6. Don't know ~ Total 3%; Men 1%; Women 4%

It is impossible on the basis of this data to say how attitudes towards the release might affect voting behaviour. A fuller exposition of these figures is to be found in my earlier post.

The saintly Augustine's Megrahi papers ...

The newswires are tingling with headlines from the Cabinet Secretary's release and review of previously unpublished UK Government documents pertaining to events surrounding Al Megrahi's release from prison. Predictably enough, the Conservative Party's shows every sign of regarding this as a splendid opportunity to stick it to their Labour opponents and are serve upon them indictments alleging implication, art and part guilt, opportunism, hypocrisy and so on.  The Cabinet Secretary's remit was clearly influenced by the antics of our old opportunistic chum, devolution expert and all round fair-minded inquisitor, American Democratic Party Senator Robert Menendez. As the paper explains....

The review has sought in particular to assess whether there is any new evidence that:

i. the UK Government directly or indirectly pressurised or lobbied the Scottish Government for the release of Mr Megrahi (either under the PTA or on compassionate grounds);

ii. pressure was placed on the Scottish Government by BP for the release of Mr Megrahi (under the Prisoner Transfer Agreement or on compassionate grounds);

iii. the Libyans were told there were linkages between BP‟s investment and the release of Mr Megrahi either under the Prisoner Transfer Agreement or on compassionate grounds.

As a substantial part of this release of documents, Sir Augustine "Gus" O'Donnell has published partially redacted correspondence from a number of figures from the defeated Labour administration. In line with past practice on this blog, I'll set down a portion of the text, for your scrutiny. O'Donnell's review and published correspondence runs to 142 pages in total. It can be consulted in full in .pdf form here, via the Cabinet Office website.

These documents include:

• 25 July 2007; footnote 6; letter from PM to Col Qadhafi;
• 19 September 2007; footnote 10; Ministry of Justice Submission
• 26 September 2007; footnote 15; letter from PM to Col Qadhafi
• 28 September 2007; footnote 11; Jack Straw to Gordon Brown PTA
• 2 October 2007; footnote 12; note from HMA Tripoli to the FCO
• 2 November 2007; footnote 18; record of phone call between Jack Straw and Kenny MacAskill
• 7 November 2007; footnote 17; Ministry of Justice Submission on PTA
• 19 November 2007; footnote 14; record of Simon McDonald meeting with BP
• 7 – 19 December 2007; footnote 21; correspondence between Jack Straw and Des Browne;
• 19 December 2007; footnote 22; record of phone call between Jack Straw and Kenny MacAskill;
• 18 February 2008; footnote 25; letter from Gordon Brown to Col Qadhafi; 
• 29 September 2008; footnote 26; Ministry of Justice Submission on PTA 
• 10 October 2008; footnote 27; Ministry of Justice Submission – Call with First Minister
• 13 October 2008; footnote 28; Ministry of Justice record Jack Straw call with First Minister 
• 17 October 2008; footnote 29; letter from Bill Rammell to Abdulatti Obidi 
• 21 October 2008; footnote 30; Cabinet Office Submission to Gordon Brown
• 24 October 2008; footnote 32; record of phone call between Jack Straw and Alex Salmond
• 3 November 2008; footnote 31; FCO Submission on handling Megrahi’s Health
• 7 November 2008; footnote 34; record of phone call between Jack Straw and Alex Salmond 
• 13 November 2008; footnote 35; FCO Submission on Judicial Agreements 
• 9 December 2008; footnote 37 and 39; FCO Submission – Advice to the SG 
• 15 December 2008; footnote 38; FCO letter to SG on foreign policy advice 
• 22 January 2009; footnote 41; FCO Submission – Contingency Planning 
• 25 February 2009; footnote 42; Cabinet Office record of Cross Whitehall meeting 
• 20 April 2009; footnote 43; FCO Submission – Further Handling on Megrahi 
• 21-23 April 2009; footnote 43; FCO Submission – Further Handling on Megrahi – PUS and Ministerial Responses
• 20 April 2009; footnote 44; FCO Submission – Ratification of Treaties
• 21 April 2009; footnote 44; FCO Submission – Ratification of Treaties – Ministerial Response
• 22 April 2009; footnote 45 & 51; Ministry Of Justice Submission – Jack Straw call with First Minister
• 29 April 2009; footnote 45; MoJ Record of Jack Straw call with First Minister
• 24 June 2009; footnote 50; FCO email – Foreign Policy advice to the Scottish Government 
• 29 June 2009; footnote 47; FCO Submission – Legal Advice to Scottish Government
• 13 August 2009; footnote 57; FCO Submission to No10 – Impending Scottish Government Decisions
• 20 August 2009; footnote 57; letter from PM to Col Qadhafi;

To give you an overall impression of the Cabinet's Secretary's review, here are his conclusions:

34. It is my conclusion that:

i. none of the materials that I have reviewed contradicts anything in the then Foreign Secretary's statement to the House Of Commons (12 October 2009) or the current Foreign Secretary's letter to Senator Kerry (23 July 2010), or statements made by the former Prime Minister on this matter;

ii. it is evident from the paperwork, including in documentation already released, that the Libyans made explicit links between progress on UK commercial interests in Libya and removal of any clause in the PTA whose effect would be to exclude Mr Megrahi from the PTA. It is also evident, including in documentation already released, that BP did lobby the former Government to make them aware that failure to agree the PTA could have an impact on UK commercial interests, including Libyan ratification of the BP exploratory agreement (EPSA) signed in May 2007. As is already in the public domain, these commercial considerations played a part in the former UK Government's decision to reverse its position and agree to the removal of this exclusion clause. And once the exclusion clause had been removed from the draft PTA, the former UK Government in turn held up final signature until progress on commercial deals had been achieved. The records show that Cabinet Office and FCO Ministers and officials were mindful of, and pressed Libyan interlocutors for progress on, the major BP deal (alongside other UK deals) in the context of agreeing the PTA. But:

a) while the PTA provided a framework to consider the transfer of prisoners, it did not permit transfer when an appeal was outstanding and, critically, in line with every other PTA, provided no automatic right to transfer;

b) any decision on an application for transfer of Mr Megrahi under the PTA was for Scottish Ministers alone to make. Scottish Ministers retained an absolute veto over any request for prisoner transfer in the case of Mr Megrahi, a veto they used in August 2009 by rejecting his application for transfer;

c) the PTA did not in any case form the basis for the release of Mr Megrahi;

d) there is no evidence that pressure was placed on the Scottish Government by BP for the transfer or release of Mr Megrahi (either under the Prisoner Transfer Agreement or on compassionate grounds);

e) there is nothing in the paperwork to indicate any pertinent contacts between BP and HMG after February 2008;

f) the Libyans were not told there were linkages between BP's exploratory agreement and the transfer or release of Mr Megrahi (either under the Prisoner Transfer Agreement or on compassionate grounds).

iii. it is clear from the paperwork that at all times the former Government was clear that any decision on Mr Megrahi's release or transfer under a PTA was one for the Scottish Government alone to take. The documentation considered by the review demonstrates that they were clear on this in their internal deliberations and, crucially, in their contacts and exchanges with the Libyans, including at the highest levels, and with the Scottish Government. In Gordon Brown's only meeting with Colonel Qadhafi, on 10 July 2009, he made clear that the decision was solely a matter for Scottish Ministers and HMG could not interfere.

iv. nonetheless, once Mr Megrahi had been diagnosed with terminal cancer in September 2008, HMG policy was based upon an assessment that UK interests would be damaged if Mr Megrahi were to die in a UK jail. The development of this view was prompted, following Mr Megrahi's diagnosis of terminal illness, by the extremely high priority attached to Mr Megrahi's return by the Libyans who had made clear that they would regard his death in Scottish custody as a death sentence and by actual and implicit threats made of severe ramifications for UK interests if Mr Megrahi were to die in prison in Scotland. The policy was primarily motivated by a desire to build on previous success in normalising relations with Libya and to safeguard the substantial gains made in recent years, and specifically to avoid harm to UK nationals, to British commercial interests and to cooperation on security issues. The desire to see such a result developed and intensified over time as Mr Megrahi's health declined and the imminence of his death appeared greater;

v. Policy was therefore progressively developed that HMG should do all it could, whilst respecting devolved competences, to facilitate an appeal by the Libyans to the Scottish Government for Mr Megrah's transfer under the PTA or release on compassionate grounds as the best outcome for managing the risks faced by the UK. This action amounted to: proceeding with ratification of the PTA; explaining to Libya in factual terms the process for application for transfer under a PTA or for compassionate release; and informing the Scottish Government that there was no legal barrier to transfer under the PTA;

vi. I have not seen any evidence that HMG pressured or lobbied the Scottish Government for the transfer or release of Mr Megrahi (either under the PTA or on compassionate grounds). Jack Straw stated clearly in his calls with Alex Salmond including on 13 and 24 October 2008 and his meeting on 28 April 2009 that this was a matter for the Scottish Government. Indeed, throughout this period, the former Government took great effort not to communicate to the Scottish Government its underlying desire to see Mr Megrahi released before he died. Moreover, it is clear that HMG considered that any attempts to pressurise or lobby the Scottish Government could be counter productive to achieving this outcome. Although it is likely that the Scottish Government was aware of this desire, there is no record that it was communicated or that UK interests played a part in Mr Megrahi's release by the Scottish Government on compassionate grounds. When the matter came to the then Prime Minister in August 2009, he did not seek to exercise any influence on the First Minister or the Scottish Government. Mr Megrahi's release on compassionate grounds was a decision that Scottish Ministers alone could – and did – make.

Source.