29 March 2011

Labour's #sp11 peril: political schadenfreude...

The thick, circulating air smells of chalk. Desks are regimented before a dowdy looking gentleman who is etching parallel bars of white across the blackboard. All in the room, save him, are dressed in the same way. At the front, there sits a pert little customer. Her notes are orderly, handwriting immaculate. She is mediocre, and she is top of the class. It is a position she retains, year on year, with the sceptical eyes of her fellows always on the back of her tidily arranged head, the smell of the lamp forever about her. Her answers are unimaginative, in debate she is dreary, but it is of no consequence. In personality, she is a natural spy and informer for authority, full of conceit, without lightness or grace. This does nothing to sweeten her nature, but added honey to the mirth when her hopes collapsed. As universities are wont to do, stringent conditions were required of her if she was to be admitted, a transcript spattered with A grades. 

Examinations were taken, and gluey days of waiting slid by; results came. These were A' levels, so the heavy letter would have to be picked up from her school, rather than clattering through her letterbox at home. She strode towards the bundle of envelopes with her usual confidence, signed her name, the administrator giving her an encouraging wee smile as she presented  her with the one with her name on it. Prying open the paper, she pulled out the correspondence and stood staring stunned for a moment or two. The tears came as a welter, she hit the deck, a cruel, hope-foiling "C" squinting up at her from the page of results. Fellow pupils looked on, but their eyes were without sympathy. Only politeness kept the tingling satisfactions of schandenfreude in their bellies from showing in their faces. The school was soon full of a glee that this disliked figure had been found out. All is as it should be, they thought, and were soon toasting their own achievements.

Schadenfreude is a favoured loanword for good reasons. Glee in the misfortune of others can be exceedingly ugly. However there are some people - and I'd argue - some movements, who positively invite general satisfaction when their best laid plans unravel and fray disastrously. It has stuck me for a good while that the Labour Party in the 2011 Holyrood election are potentially, potentially, a very good candidate for the satisfactions of political schadenfreude. Like the fictional swot sketched in my little tale, the party is in poll position for no discernible good reason, has not and is not putting in the running to run to triumph. Iain Gray may declaim that he's "serious, very serious" all he likes, but he has presided over a relentlessly frivolous, vacuous opposition in Holyrood, exemplified by the late magpie approach to policy development. Labour's "policy blitz" was to crack open the SNP armoury and kit themselves out in the same gear. Gray's front benches are replete with mediocrities and political chancers, whose primarily talents involve maintaining the lustre of their brass necks.  Even those skeptical about the Nationalists are mostly willing to concede that the balance of mediocrity finds Labour the heavier. 

Yesterday saw Weber's Sandwich's Scotland Votes debate, on the economy. Andy Kerr had all the poise of a perspiring, innumerate cuttlefish, presented with an abacus and invited to subtract three from four. He slapped a gooey tendril over a number of fiscal issues, but was by far the least assured, least convincing performer, being outdone by sober Swinney, Derek Brownlee and even the salaciously-named, marmalade-stained Liberal finance spokesman, Jammy Pervs. Particularly implausible, I thought, was this moist cephalopod's dark hints that he did not believe the Glasgow Airport Rail link had been cancelled for financial reasons. I doubt even Kerr believes such palpable guff, with its bizarre implication that the Edinburgh-born Swinney derives some sort of demented pleasure at the idea of mahogany-tanned Glaswegians, ideally heavy-laden with luggage, struggling to reach town when they return from their holidays. His own rank cynicism despite, Kerr seems to thinks that the voting public is sufficiently credulous to believe such fevered tales.

Labour itself is clearly conscious of the risks associated with becoming the dislikeable favourite, and have been avoiding looking too gleeful at the run of decent polls. Indeed, while their overall message has been "come home to Labour", that phrase has been conspicuous by its absence. A wise move, you might think, given its patronising connotations. Alex Salmond, canny old political villain that he is, clearly recognises the political potential of this and has been making stabs at framing the competition in terms likely to foster a Schadenfreudige attitude towards the poll-placed Labour Party. I'm not necessarily arguing that there will be an eruption of malicious glee against them in May's Holyrood election. While the public has the means to humble them in their own hands, I remain of the view that this election remains too close to call. However, as the dreary lassie in the story learned, while there are momentary pleasures in being a undeserving favourite - and in Labour's case, in the anticipation slipping into office despite yourself, by the charms of your inactivity - it isn't necessarily as comfortable a position as you might imagine. Both are left terribly vulnerable to reaction, and to schadenfreude.

27 March 2011

The remarkable trial of Joseph Russel...

I've lately been conducting a little research for one of my side projects, touching on the infamous 1793 Scottish sedition trial of the Scottish Reformer, Thomas Muir. Extensive contemporary accounts of Muir's proceedings in the High Court of Justicary before the jury and Lord Justice Clerk Braxfield are available. I've been reading, in the pithy titling of the time, Robertson's Edition: an account of the trial of Thomas Muir, Esq. younger, of Huntershill, before the High Court of Justiciary, at Edinburgh. On the 30th and 31st days of August, 1793, for sedition. 

In his recent speech to the SNP pre-election conference, Alex Salmond rounded off his peroration with a reference to Muir's final address to the Edinburgh jury who convicted him. This is by far the best-known section of Muir's long petition. The most famous quotation from this passage is etched onto the Martyrs' Moment, which stands in Edinburgh's Calton Hill. Anyone who has stood and been blusteringly dishevelled on the North Bridge will know this monument, at least by sight, if not by significance. The huge obelisk spears up towards the sky and includes the inscription:

"To The Memory Of Thomas Muir, Thomas Fyshe Palmer, William Skirving, Maurice Margarot and Joseph Gerrald. Erected by the Friends of Parliamentary Reform in England and Scotland, 1844."

Muir's forensic harangue concluded:

"This is now perhaps the last time that I shall address my country. I have explored the tenor of my past life. Nothing shall rear from me the record of my departed days. The enemies of reform have scrutinised, in a manner hitherto unexampled in Scotland, every action I may have performed, every word I may have uttered. Of crimes, most foul and horrible, have I been accused: of attempting to rear the standard of civil war; to plunge this land in blood, and cover it with desolation. At every step, as the evidence of the crown advanced, my innocency has brightened. So far from inflaming the minds of men to sedition and outrage, all the witnesses have concurred, that my only anxiety was to impress upon the necessity of peace, of good order, and of good morals.

What then has been my crime? Not the lending to a relation a copy of Mr Paine’s works; not the giving away to another a few numbers of an innocent and constitutional publication; but for having dared to be, according to the measure of my feeble abilities, a strenuous and active advocate for an equal representation of the people in the House of the people; for having dared to attempt to accomplish a measure by legal means, which was to diminish the weight of their taxes, and put an end to the profusion of their blood.

From my infancy to this moment, I have devoted myself to the cause of the people. It is a good cause. It will ultimately prevail. It will finally triumph. Say then openly, in your verdict, if you do not condemn me, which I presume you will not, that it is for my attachment to this cause alone, and not for those vain and wretched pretexts stated in the indictment, intended only to colour and disguise the real motives of my accusation.

The time will come, when men must stand or fall by their actions; when all human pageantry shall cease; when the hearts of all shall be laid open to view.

If you regard your most important interests; if you wish your consciences should whisper to you words of consolation, rather than speak to you in the terrible language of remorse, weigh well the verdict you are to pronounced.

As for me, I am careless and indifferent to my fate. I can look danger, and I can look death in the face, for I am shielded by the consciousness of my own rectitude. I may be condemned to languish in the recess of a dungeon. I may be doomed to ascend the scaffold. Nothing can deprive me of the recollection of the past; nothing can destroy my inward peace of mind, arising from the remembrance of having discharged my duty."

While the injustice experienced by Muir and his companies is commemorated - and in some measure, atoned for - with the Martyrs' monument, spare a thought for the unfortunate Joseph Russel, who was due to give evidence in Muir's trial. His experience before the unremitting, grim Lords Commissioner of Justiciary is almost unwittingly comic. How he must have lamented his loose way of talking, little expecting that the pernickety jurisprudes of Edinburgh would prove so unyieldingly exacting. The Robertson's Edition relates what happens thus...

"John Russell, merchant, Glasgow, sworn, and the usual question being put, "If any person had instructed him what to say?" He answered, none; except to tell the truth. Being asked by the Court who instructed him so, he replied he could point out no person in particular, but that it was the general advice of all to whom he spoke. He was required to produce his summons as a witness, from which it appeared that he had only received it four days before the trial, and he was told by the Court that any person who spoke to him must have done so in the interval'of these four days. And, therefore, that it was impossible he could forget all their names. The witness replied, that the general instruction to speak the truth was so common, that he could not remember at present any particular person who had given it.

The Lord Advocate moved that the witness should be committed to prison for " prevarication on oath!"

Mr. Muir rose and attempted to speak in behalf of the witness, but he was interrupted by the Court, who commanded him to sit down, as he had no right to interfere in the business.

Lord Henderland gave his opinion. Every appearance, said his Lordship, was against the witness, who wished to conceal the truth. He merited punishment, and should be committed to prison. The rest of the Judges concurred with Lord Henderland; and Mr. Russel was committed to prison for three weeks as guilty of concealing the truth on oath!"

When injustices come, they come not single spies, but in battalions...

25 March 2011

MacAskill finds bankruptcy is blackwhite ungood for Scottish Tories...

Unusual for me to rattle off two successive posts touching on our friends in the Scottish Conservative and Unionist Party. However, their bizarre candidate de-selection affair in Glasgow deserves a word or two. The press are offering a range of versions of what precipitated Malcolm MacAskill being pushed from the pre-eminent Tory place on the Glasgow regional list, to be replaced by Ruth Davidson. As our past analysis has demonstrated, if the Tory vote in Glasgow proves reasonably resilient, if they aren't kicked into fifth place on the list, and if Nicola Sturgeon wins in Glasgow Southside - the Tory top candidate is extremely likely to take up a seat in Holyrood. Why then would the leading candidate relinquish or be relieved of this comfortable-seeming position? Earlier this month, the Herald reported that Glasgow's only Tory baillie, the juvenile David Meikle, and a second Glasgow Tory candidate had raised concerns that the party list voting - which MacAskill had topped - showed signs of jiggery-pokery. The pair alleged that:

"... around 150 new members joined the Conservative Rutherglen association in the months running up to the election. Prior to the mass sign-up, they allege that the same association’s membership stood at 17."

Today, as MacAskill gets the heave-no, denials that the Meikle's call for an investigation are involved. In explanation, the Tory party chairman, Andrew Fulton, offered only bland, ameliorative saws. Nothing to see here, ladies and gentlemen...

"This change arose following discussions between the candidate and the Party's Candidates Board. As always in internal issues, such conversations are private and we will respect that confidentiality. I would, however, like to thank Malcolm for his service to the party."

The Herald and Telegraph disclose a rather more substantial explanation for this otherwise inexplicable development. "Chequered business career costs Tory his Holyrood hopes". Alan Cochrane writes:

"Mr Macaskill, who was virtually guaranteed a seat in the Holyrood elections on May 5, was kicked out by Mr Fulton, a former MI5 official, for allegedly failing to declare he had been twice been made bankrupt as a businessman – once 20 years ago and again 10 years ago. Mr Fulton made no mention of the reason for the dismissal in an official statement, merely saying Mr Macaskill had been dropped 'following discussions between the candidate and the party's candidates' board'".

The Herald have more precise details. Here's an excerpt:

"As part of the internal selection process to rank candidates on the list, Mr Macaskill produced a CV saying he had founded and “owned a successful manufacturing business since 1984” and was ranked top of the list in December. However, public records show he was sequestrated – the Scots term for bankruptcy – in 1987 and 1997. In 1994, he and his wife Moya were also taken to court by the Inland Revenue over bills of more than £8000 – including £6664 unpaid income tax – run up by their sandwich firm Kwik Snax. The court summons said the pair were “repeatedly called upon to make payment of the sums sued for but they refuse or delay to do so”.

I dare say MacAskill may be feeling pretty sore about all of this this morning. Not least, he might well reflect with a good deal of sourness on his party's irregular and capricious attitude towards those whose ruinous headships deliver their business concerns into financial calamity. He is frog-marched to the midden, while a ruddy-faced bloviator like Jackson Carlaw is being seriously (if implausibly) touted as a possible Tory leadership contender once Annabel Goldie goes on her merry way. Carlaw  (above, right) is the Conservative candidate in Eastwood, and was the second Tory list MSP from the West of Scotland in the third Scottish Parliament, lately dissolved. Deputy Chairman of the Scottish Conservatives from 1992 to 1998, reappointed in 2005, Carlaw is a creature of Newton Mearns (land of leather-faced harridans and twee bourgeois flatulents, of which materialistic and narrow-minded community, Carlaw is exemplary). Carlaw boasts a very similar "chequered" business past to the booted MacAskill, littered with collapsed business ventures he was involved in. According to Jackson's own website...

"Prior to being elected to the Scottish Parliament Jackson spent 25 years in the Scottish motor industry, before acting as an independent business consultant."

He doesn't mention that his movement into independent business consultancy was presumably precipitated by the bankruptcy of his automotive ventures. As the Sunday Herald noted in an article of 2005, on Carlaw's appointment as interim vice-chairman to the party...

"A car salesman, [Carlaw] has also had a number of well-documented business problems. He was joint head of FirstFord, the dealership in the west of Scotland that was placed into receivership in November 2002. He was also a director of Wylies (Automotive Services), which went into administration in February 2003."

Carlaw was a governor of my old, unbeloved secondary school Hutchesons' Grammar, in Glasgow (which in itself, recalls my deep antipathies towards the ruling spirit of that bumptious petit-bourgeois institution, as I remember it). I quote from the Herald article of 2003. Carlaw faced...

"... parental opposition to his appointment to lead a strategic review at Hutchesons' Grammar, the independent Glasgow school. He resigned as a governor in July to take up the part-time post, and some parents are questioning how he can ensure the school ''remains at the forefront of modern educational expectations'' when two of his businesses have collapsed since November."

Another Herald article on the same appointment furnishes a few more details of Carlaw's failed business escapades:

"Mr Carlaw was joint head of FirstFord, the car dealership with eight franchises in the west of Scotland which was placed in receivership last November, threatening 300 jobs. He is also a director of Wylies (Automative Services), trading as Auto Contracts, which went into administration in February. The contract hire and leasing firm is being wound up, and 18 people have lost their jobs. The latest available documents lodged with Companies House reveal its four directors took (pounds) 163,248 from the company in the year ended 2000, when losses were (pounds) 39,000, compared with more than (pounds) 290,000 in 1999. A spokesman for Ernst and Young, the administrator, said yesterday: ''It is in wind-down mode, having been unable to sell it as a going concern.''

So a decidedly blotchy financial background is fatal to one MSP's candidacy, but another, arguably equally mottled commercial biography is discreetly ignored when you are mooting who should lead the whole dismal Tory tribe in Holyrood? The mind boggles.

24 March 2011

"Minor alterations to conserve the antique essence of English hegemony..."

Will geography cause an upset in our Tory leader guessing game? asks Alan Cochrane, the Telegraph's in situ black-hearted Unionist, in a column of last week. Scottish Tories, such as they are, appear to be experiencing one of their regular existential crises on the relationship between their Unionism and their attitudes towards devolution. Creditably, the issue was explicitly addressed in an apparently "packed" fringe meeting, held at the late Tory Spring conference in Perth. "Darth" Murdo Fraser was debating the serpentine former Secretary of State for Scotland, Michael Forsyth. Both were concerned about the Scotland Bill, devolution and Tory strategy. Forsyth contended that any sort of fiscal devolution of powers to the Scottish Parliament would be a "timebomb at the heart of the union". Fraser disagreed. I wasn't in attendance for obvious reasons, but I'd imagine that Fraser might argue that constitutional reform represents an opportunity to stabilise and entrench the Union, leaving the settled will of the Scottish people properly settled.  By contrast, Forsyth's anti-devolutionary motto seems to be give 'em an inch and they'll take a mile, so don't relinquish one mil of authority. Period. According to Cochrane, the Tories in the room overwhelmingly backed the old villain's devolution skepticism. The issue has prompted a wee flutter of debate in our online agora. In a recent edition of the Scottish Review, David Torrance writes "in defence of the Union", arguing that the Tories should embrace the vision of a federated United Kingdom. He concludes:

"'Things fall apart,' wrote Yeats, 'the centre cannot hold', or, as Lord Acton put it, 'a great democracy must either sacrifice self government to unity or preserve it by federalism'. A Liberal, the late Russell Johnston, put it even better. 'The choice for Scotland is between separating herself from the United Kingdom and working out a federal relationship,' he said in 1976. 'Nothing in between makes sense.' Amen to that."

This morning, Bill Jamieson has a piece on a similar theme in the Scotsman, arguing that the "Scotland Bill's 'consensus' is a sham". Coincidentally enough, I've recently been re-reading the third edition of Tom Nairn's seminal The Break-Up of Britain, published in 2003. You can probably expect a series of snippets and phrases from the work, over the coming weeks.  First published in 1977, I'm frequently struck by the continuing contemporary resonances of Nairn's commentary, the recognisable Unionist angsts and coping strategies; the reticent attitude towards the apparently settling prospect of UK federalism; the overarching sense of bemusement and foiled endeavours about how best to sustain Britain's crepuscular Kingdom in the face of Scottish nationalist political demands.  Wasn't devolution supposed to "kill Scottish nationalism stone dead" after all? Where is its thistle-strewn corpse? Why isn't that cadaver spent? Where did it all go wrong? All are questions which immediately concern the Unionist trio of Murdo, Forsyth and Torrance. Nairn's first chapter - "The Twilight of the British State" - has much of interest to say in this regard...

"In summary, almost emblematic form, one might say: London government invents habitual class remedies to nationalist ailments. Its instinct is to concede, when sufficiently prodded, then consolidate tradition on the new, slightly different balance of forces that results. Although notoriously effective on the front of class struggle and negotiation, the strategy has no real application to national questions. The philosophy and practice of conservative empiricism presupposes a stable, consensual framework; the new nationalisms challenge that framework itself. British constitutionalism makes an arcane mystique of power, removing it from the arena of normal confrontation and enshrining it as a Grail-live "sovereignty"; by nationalism is about power, in a quite straightforward sense. It is a demand for the Grail, or at least a bit of it (this is of course a demand for the impossible, in English ideological tradition).

This pattern has been followed to the letter in the development of intra-British conflict so far. When Welsh and Scottish nationalism began to advance politically in the 1960s, London government from the outset assumed that these developments would have to be adapted to, and nullified, in the habitual way. It noticed that the demands were different in Wales and Scotland, as were the relative strengths of the nationalist parties. So of course different concessions would be in order for each region. A Royal Commission was appointed to work out how this should be done, in the customary hope that the problem would have solved itself by the time this body's deliberations were finished. When completed, its recommendations were greeted with universal derision and cynicism.

The derision vanished with the new election results of 1974. The new Labour government hastily produced legislation embodying some of the Commission's ideas, which became the "Scotland and Wales Bill" of December 1976. Now that the problems were not going to disappear spontaneously, concessionary tactics would have to be employed. With limited degrees of self-government in domestic matters (extremely limited in the case of Wales), it was believed that the regions would soon relapse into their traditional subordination. Are they not full of basically loyal folk who may have a few grievances but know that Britain is best? Once reasonable note is regally taken of their grudges, surely they will fall into line again, acknowledging their limited yet honoured place in the greater scheme of things?A great deal of fulsome rhetoric of 1960s vintage went into the deal: the legislation was titled "Our Changing Democracy" and sanctified by speeches on bringing government "closer to the people", combating impersonal centralism, etc. When set in the historical perspectives of English élitism, this was indecorous to say the least of it: few have seen it as anything but an ideological façade. Like the Local Government reforms which had preceded devolution, the changes were at heart ways of preserving the old state - minor alterations to conserve the antique essence of English hegemony.

There was no real belief in a new partnership of peoples. And in fact, such a partnership - in other words, genuine "transfer of power" from the old state - was never conceivable without the most radical reform of the centre itself. To give effective power away meant examining, and changing, the basis of power itself: the Constitution, the myth-source of sovereignty, and all that it depends upon. The whole British political system had to be altered. There has been no serious question of doing this, for the sake of the Scots, the Welsh and the Ulstermen. The only political party which advocates it is the one permanently removed from power, the Liberal Party.

Unable to contemplate radical reform of the centre (since its whole modern history has been built on avoiding it) London government has blundered empirically into using the usual tactic of graduated response. One commentary after another has explored the self-contradictory nature of the proposals, their liability to generate conflict and escalation of nationalist sentiment and demands..." Tom Nairn (2003) The Break-Up of Britain, 3rd edn, pp 49 - 52.

23 March 2011

Glasgow University riots of the 1700s...

Mischief is afoot in my old alma mater, the University of Glasgow. Martin Williams of the Herald makes the extravagant claim this morning that ...

"Mr Muscatelli came under increasing pressure last night as a band of nearly 100 outraged academics signed a joint statement condemning the university’s actions, which sparked the scenes of anarchy unprecedented in its 560-year history."

Not so unprecedented, really. Reading Ian Ross's The Life of Adam Smith (2010) soon disabuses you of the impression that the recent stramash has any claim to precedence. Indeed, compared to the mischief of the early 1700s, this week's single broken window seems positively tame. Like the incumbent, former Principal John Stirling had his troubles. Describing the 1726 Commission of Visitation to the University, Ross writes...

"In the first instance, the Commission saw a need to correct problems caused by Stirling antagonizing some colleagues and the students through insisting on his own decisions and the advancement of adherents in defiance of what were claimed to be the normal procedures.  A case in point was the election of the rector, in Scotland as in many European countries the titular head of a university. Principal Stirling excluded students from the electoral body, and his action became a focus for discontent. While Glasgow students were mostly boys in their early teens, there was a sizeable number of Irish Presbyterian students and graduates, who were older and ready to be more politically active because of the struggles of Dissenters in their homeland to secure civil and religious liberties. Responding to encouragement by professors opposed to Stirling, their rhetoric painted him as a tyrant and their cause as the vindication of rights. These efforts sustained a tradition of political discourse that was to influence Smith in his stand for natural liberty. Student turmoil in Glasgow must have helped to form his outlook as well as instruction from Francis Hutcheson and his prescribed and independent reading.

In 1722, a group of Smith's predecessors among the student body lit a bonfire opposite the college gate to celebrate a mistaken report that the Irish peer, Robert 1st Viscount Molesworth, had become MP for Westminster as a result of the general election. Leader of the Old Whig party in Ireland, as well as bring a friend of Locke, Shaftesbury, and Swift, also of Hutcheson, then teaching at a Presbyterian academy in Dublin, Molesworth sympathized with the student radicals in Glasgow and corresponded with them. The Senior Regent, Gershom Carmichael, sought to have the bonfire quenched and was assaulted by one of the student leaders, John Smith, an Irish divinity student at Glasgow. He was expelled but later in the year published in Dublin a pamphlet dealing with the affair: A Short Account of the Late Treatment of the Students of the University of Glasgow. The students raised an action in the Court of Session, and planned to petition the House of Commons for restoration of their right to vote in the rectorial election, confident that Molesworth would be their champion.  Carmichael, who had a role in the development of Scottish philosophy as a teacher of the natural law tradition associated with Grotius and Pufendorf, had inflamed the students in 1717 with a "noble Harrangue ... in praise of Liberty", but he had abandoned the students' cause in return for a favour to his son by Principal Stirling. In 1725, rebellious students attacked the house of the Rector, Sir Hugh Montgomerie of Hartfield, manoeuvred into office by Stirling..." (Ian Ross [2010] The Life of Adam Smith pp. 36 -7).

Plus ça change, eh?

22 March 2011

Does Scotland "effectively protect its citizens from all forms of rape & sexual abuse"?

An interesting edition of BBC Newsnicht last night, talking about rape, the requirement in Scots Law that charges are corroborated, and a potential challenge in the European Court of Human Rights. This followed on from a Scotland on Sunday exclusive with Elish Angiolini, the outgoing Lord Advocate, this weekend. She has "warned that alleged rape victims, whose cases are not taken to court because the demanding requirement of Scots law for corroboration has not been met, could appeal under the European Convention on Human Rights."  Unfortunately, neither the Scotland on Sunday nor the BBC really substantiated the basis for these dark hints about the compatibility of Scots Law with fundamental rights. That said, the relative obscurity of what Scotland has to do under European human rights law has one very positive aspect. Instead of glumly and resentfully legislating by rule, and thinking about the bare minimum, it allows us to ask ourselves the more fundamental question: does Scotland's criminal law effectively protect people within its jurisdiction from all forms of rape and sexual abuse?

To recap, in England, there is no requirement for corroboration, but juries can only convict an accused person of rape on a vote of 10-2. In Scotland, sufficiency of evidence rules mean that the essential elements of Scottish rape charges must be proved by corroborated evidence, but the jury can return a majority guilty verdict on a vote of 8-7. As a result, we know that a large number of cases are marked no proceedings by Scottish prosecutors - insufficient corroboration - and are never examined in court. Of those rape and attempted rape cases which are tried, Scottish Government statistics estimate that 46% result in a conviction, with 32% in verdicts of not guilty and 19% acquitted on a finding of not proven.  According to the 2009 Stern Review into how rape complaints are handled by public authorities in England and Wales, it was clear that:

"... the figure for convictions of people of all ages charged with rape (as the term is normally used in relation to crime) is 58 per cent. The confusion arises from mixing up the conviction rate with the process of attrition. "Attrition" is the process by which a number of the cases of rape initially reported do not proceed, perhaps because the complainant decides not to take the case any further, there is not enough evidence to prosecute, or the case is taken to court and the suspect is acquitted. The attrition rate figure has been the cause of considerable concern, and attempts to reduce it are behind many of the reforms that have been introduced in recent years."

There is a great deal which might be said on this topic. I'll delimit today's contribution to the narrower issue of the relevant jurisprudence of the European Court of Human Rights and its potential implications for Scots law.

Corroboration, Scotland & European human rights law...

The BBC report darkly alluded to the possibility that Scots Law might be challenged in the European Court of Human Rights, but didn't really substantiate the point. I assume the Lord Advocate has the case of M.C. v. Bulgaria in mind. Decided in 2003, the judgment concerned the "predominant practice" of Bulgarian authorities to prosecute "rape perpetrators only in the presence of evidence of significant physical resistance". In evidential terms, the case involved "two conflicting versions of the events and little “direct” evidence". At that time, the applicant was 14 years and 10 months old. She said she had been raped, while the man she accused, aged 21, said that the sex had been consensual. There was a second incident a day later. The applicant alleged that a second young man, and friend to the first accused, had also raped her. He too claimed that the sex had been consensual. The investigation by the Bulgarian authorities took complex turns which needn't particularly detain us here. It sufficieth to say that prosecutors decided not to take forward criminal proceedings against the two young men. The young woman made an application to the European Court in Strasbourg, arguing that Bulgaria had failed to protect her rights under the Convention.  The judgment is a complex combination of the particular circumstances in Bulgaria and the erga omnes human rights standards, to be observed by all Member States, including Scotland. Outlining its general approach, the European Court held that:
"States have a positive obligation inherent in Articles 3 and 8 of the Convention to enact criminal-law provisions effectively punishing rape and to apply them in practice through effective investigation and prosecution."  

Article 3 provides that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”, while Article 8 § 1 reads that “Everyone has the right to respect for his private ... life”. Describing the positive obligations arising from these Articles, the Court noted that:

"Positive obligations on the State are inherent in the right to effective respect for private life under Article 8; these obligations may involve the adoption of measures even in the sphere of the relations of individuals between themselves. While the choice of the means to secure compliance with Article 8 in the sphere of protection against acts of individuals is in principle within the State's margin of appreciation, effective deterrence against grave acts such as rape, where fundamental values and essential aspects of private life are at stake, requires efficient criminal-law provisions. Children and other vulnerable individuals, in particular, are entitled to effective protection" [Para 150]

The vital section for Scots Law, it seems to me, is set out in paragraph [166] of the MC v. Bulgaria judgment:

"... the Court is persuaded that any rigid approach to the prosecution of sexual offences, such as requiring proof of physical resistance in all circumstances, risks leaving certain types of rape unpunished and thus jeopardising the effective protection of the individual's sexual autonomy. In accordance with contemporary standards and trends in that area, the member States' positive obligations under Articles 3 and 8 of the Convention must be seen as requiring the penalisation and effective prosecution of any non-consensual sexual act, including in the absence of physical resistance by the victim."

Ask yourself this then. Does the "rigid" Scottish approach to corroboration risk "leaving certain types of rape unpunished"? As the English experience shows, simply dispensing with the corroboration requirements will not necessarily mean that overall conviction rates, from complaint to court, significantly increase. Indeed, dispensing with the requirement may well decrease the rate (if not the absolute number) of convictions actually achieved. In so doing, it is likely to increase the number of victims put through the exceedingly difficult experience of giving evidence, being cross-examined, and then experiencing adverse verdicts. I cannot see, however, why it should be generally regarded as preferable to anyone except malefactors, for potential cases never to be heard at all. A jury verdict which does not convict one's assailant may be painful, but the rebuff of a prosecutor's letter must surely be regarded as even more unsatisfactory.  Reasonable doubt puts its high evidential hurdle before prosecuting authorities, as it ought to. Allegations of rape where persons are known to one another, where the sex is admitted, where only consent is in issue, are always going to be appallingly difficult to resolve.

However, where corroboration is not mandatory, such difficult cases can still be put before a jury,  the credibility of witnesses can be scrutinised and the admitted facts of the case can be assessed. The effective consequence of Scottish corroboration rules is to exclude a great number of cases from any chance of a criminal remedy, without examination. Does the difference matter? For example, English qualified jury majorities mean that individuals will be acquitted, if an insufficient number of them can be convinced of the defendant's guilt. Corroboration has a similar limiting effect, albeit employing a different - and arguably starker - evidential mechanism.  Our question, therefore, is whether the gatewarden of corroboration, preventing cases from being heard at all, renders ineffective the protection of the rights of Scots who experience sexual violations and precisely "risks leaving certain types of rape unpunished and thus jeopardising the effective protection of the individual's sexual autonomy". I would be cautious about suggesting that this would be the legal view taken by the European Court. However, I increasingly share Paul McBride QC's opinion that, as a matter of political concern, the corroboration sufficiency hurdle in cases of rape and other sexual offences is manifestly unsatisfactory. Others disagree, and disagree for laudable reasons, on the basis of important values I wouldn't dissent from recognising. However, I would ask those who are sure that corroboration should be maintained, who are satisfied that so many cases which can be examined in court in England never cross the portals of Scottish public justice, how much longer can we close our eyes to the real nature and character of so many of these sexual offences?

21 March 2011

Holyrood's last judgment...

It seems appropriate that the Scottish Parliament's last judgment will be to strip Scots criminal proceedings in the most serious cases of their ancient finality. The third Scottish Parliament will meet tomorrow for the last time. The Jabbereck and the Snark will trade their final, ritual blows. Our tribunes will tender their thanks to their erstwhile shepherd, Presiding Officer Alex Fergusson, before casting their votes at one o'clock in the third and final stage of the Double Jeopardy (Scotland) Bill. Several faces will be leaving their seats in the chamber for the last time. Done. Finished. Over. Go. Move. Shift. Such moments of change have their sadnesses and their green shoots. A parliament dissolved anticipates the parliament shortly to be formed. The heavy drumbeats of the election begin to sound more urgently.

Before being too beguiled by that beat, it is worth paying attention to the final stray crotchets of the parliamentary term and its last business. Opinion is divided on whether these Scottish developments on double jeopardy are virtuously sheep-like, a deliverer of the just, or a caprine-capricious mechanism to rob the acquitted of the security of having tholed their assize and escaped the lawful persecutions of the Crown. In the parliament, only the brace of Greenies are likely to oppose the Bill, which will otherwise be adopted by general acclaim. If you are new to the issue, and curious, the Scottish Parliament Information Centre (SPICe) have put together this brief stage 3 briefing report which sets out the new regime very neatly - and much more succinctly than my rather dispersed thoughts as the Bill has progressed. 

The proceedings have been extensively covered on this blog, most recently at stage 2, where I shared pious reflections on A Thole in Jeopardy. To condense the legislation's provisions, if you subsequently admit your guilt, or taint your first trial by jiggery-pokery, your acquittal can be set aside whatever offence you were acquitted of, whatever court you were tried in. If, by contrast, new evidence emerges against you after you have been acquitted, you will only be able to be retried if your first trial took place in the High Court of Justiciary. If you are acquitted by a sheriff, or a sheriff sitting with a jury, that finding is final and the general double jeopardy rule applies. There are a number of other qualifying sections and clauses on this - most critically that in each and every case, the High Court of Justiciary must agree to set aside an acquittal if a re-trial is to occur. However, those are the basic features of the new legislation. As I noted in A Thole in Jeopardy, the final Act will cover a much greater number of offences than the Bill first introduced by Kenny MacAskill, but the number of cases it will conceivably apply to is smaller. These new exceptions to the double jeopardy rule will be retrospective, applying to past acquittals. However, as a Scottish Law Commissioner pointed out, it has not been the practice to retain evidence where the accused person has been acquitted of an offence. He told the Justice Committee:

Patrick Layden QC: "The reason for [retrospective application of a new evidence exception to the "double jeopardy" rule], we are told, is that this is the area in which it is said that the police and prosecutors may be able to reopen cases in the light of advances in technology. People talk about DNA and so on. Where physical evidence is retained, it can be re-examined in the light of scientific advances. When DNA became a useable technology, it was possible to re-examine blood and other samples in unsolved cases and compare the results against the developing national database. That was how Angus Sinclair was convicted in 2001 of the rape and murder of Mary Gallacher, which happened as long ago as 1978. It is an extremely useful technology.

When a crime is unsolved and there has been no trial, the police keep the physical evidence as a matter of routine so that it is available if and when more evidence more turns up. However, we checked with the Crown Office, which confirmed that where there has been a trial and the accused has been acquitted, as a matter of routine the physical evidence is thrown away. There is no point in keeping it. Therefore, it does not matter what scientific advances there may be. Where someone has been acquitted, no physical samples are available for testing. Making the exception retrospective will have no practical effect. No doubt the Crown Office will be able to tell the committee how it intends to deal with that matter in future, but as far as the past is concerned, there is no evidence. Not only is there a strong, principled objection to making the legislation retrospective, but retrospection will not achieve any noticeable practical effect.

We raised in our discussion paper the question whether anyone knew of any cases in Scotland that might be reopened if the legislation were passed and made retrospective. The police, the prosecutors and the judges were not able to think of a single example. So far as I am aware, that remains the position today."

As I have discussed on two previous occasions, while the new evidence exception might be used to re-prosecute Angus Sinclair for the so-called World's End Murders case, this looks extremely unlikely, calling for new evidence to materialise which "substantially strengthens" the case against the accused and critically, new evidence that "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" - amongst other things. In Sinclair's case, this seems like a very long shot, this long after the horrible events took place. Whether these changes are good or bad - we should be exceedingly skeptical about ministerial assurances that this new Act will be sparingly applied in all time coming. The terms of the Act certainly give the High Court of Justiciary a mediating role, if the Lord Advocate determined to pursue an aggressive and much more wide-ranging re-trial policy than policy-makers intend. For my part, I don't anticipate a slew of cases in the short to medium term. However, at its most simple, this is an Act to empower public officials to pursue particular courses of action. The bare text of the legislation does not speak to how they exercise those powers, nor how regularly they might seek to rely on its sections. The "reasonable diligence" qualification to the new evidence exception clearly seeks to ensure that the authorities do not wilfully truncate their investigations, just in case their preferred suspect is acquitted at trial. By limiting the exception only to evidence subsequently discovered beyond reasonable diligence, any temptation to keep the possibility of a future double jeopardy exception being applied in the backs of their minds, to get two chomps at the cherry, should be discouraged.

The Double Jeopardy (Scotland) Act will make what was once impossible possible. It will doubtlessly see greater substantial justice done in particular cases and for that reason, I've come around to a more supportive position. However, I still have outstanding concerns about the sorts of cases it might apply to. For example, under the new provisions, any High Court acquittal can be retried, whatever offence was alleged. Had the Satsuma Socialist been on more Ciceronian form last year, and got himself acquitted, that acquittal would have been continuously vulnerable to review and recall. It is a concern - and how the Crown use these new powers will have to be very closely attended to in the coming years.

20 March 2011

That new Scottish Domestic Abuse Act...

I often have a tart word or two to say about the paltriness of the Scottish media's coverage of Parliament's legislative business, where the reform appears full of Byzantine technicalities, making great demands on the journalistic mind. In this case, the unjustifiable neglect is my own.  On the 16th of March, Holyrood passed Rhoda Grant's Domestic Abuse (Scotland) Act 2011, without a breath of commentary from me on their deliberations. Mea culpa, miserere. Grant is not a particularly prominent or fierce tribune, but she represents the Labour Party in the parliament and has doggedly pursued this issue.

Some background detail...

So what was this reform all about? It is a rather complex field, and I've never been much truck at Family Law. I'll persevere. As I've mentioned before in the context of last year's outrageous Hatcher judgement of the High Court of Justiciary, a number of criminal offences cover (and fail to cover) conduct we might conventionally think of as being domestically abusive. According to Scottish national statistics, the police recorded 53,681 incidents of domestic abuse in 2008-09. 55% of these incidents lead to some sort of criminal intervention. Minor assaults were the most prevalent category of crime recorded, representing 23% of the total, some 12,518, all told. Breach of the peace was the second most common accounting for 18 per cent (9,650) of incidents resulting in a crime or offence being recorded (see Table 1). In future, I would envisage that a number of these cases will be prosecuted under the § 38 of the new Criminal Justice and Licensing (Scotland) Act, which criminalises "threatening or abusive behaviour".

There are also a number of civil remedies which domestically abused persons can resort to, including those set out in the Protection from Harassment Act 1997, which Grant's Bill amends. Insofar as it applies to Scotland, the 1997 Act makes provision for a harassed person to mount a civil action against their harasser. The 1997 Act defines harassment as including "causing the person alarm or distress; and a course of conduct must involve conduct on at least two occasions". "Conduct" includes speech-acts. If the pursuer could persuade a Scottish Court that the circumstances identified as harassment "would appear to a reasonable person that it would amount to harassment of that person", the Court could grant a range of remedies - from damages, granting an interdict or making a non-harassment order. The burden of proof lies on the pursuer - and the standard is one of balance of probability, rather than the more commonly known criminal standard of beyond reasonable doubt.

Damages are pretty self-evident. The two other remedies aim to constrain future harassing conduct but differ in their effects and forcefulness. In Scots Law, an interdict is an order by the Court preventing individuals from embarking on or continuing on some course of action. Critically, breaching an interdict is not a criminal offence. Breach must then be raised by the harassed individual in civil court. Unless the breacher's conduct amounts to some other offence - the police cannot intervene. Under the Protection from Abuse (Scotland) Act 2001, powers of arrest can be attached to interdicts, allowing the police to arrest interdicted individuals where they have reasonable cause to suspect that person of being in breach of the interdict and considers that there would, if that person were not arrested, be a risk of abuse or further abuse by that person in breach of the interdict. The 1997 Act goes one better when it comes to non-harassment orders. If the pursuer can secure such an order, it is a criminal offence for the ordered person to breach its terms., potential punishments ranging from fines to a five year prison sentence.

The reforms...

So what will Rhoda Grant's Act do? Grant's Domestic Abuse (Scotland) Act will introduce Domestic abuse interdicts. Under the Protection from Harassment Act, the harassed individual has to show a course of conduct. Grant believed, quite reasonably, that when we are talking about conducting amounting to domestic abuse, it is unjustifiable that the civil law requires two black eyes, rather than one, before the bastard finds himself subject to legal sanction. Or, as the Dundee Violence Against Women partnership argued:

"...we should not require anyone to be abused multiple times before protection is offered."

The new domestic abuse interdicts requires no such course of conduct, and a single incident will suffice. Secondly, the civil nature of the previous interdiction regime meant that the harassed person had to return to Court to hold their harasser to account themselves and bear the burdens of proof. Practically speaking, there were real concerns that this did not represent a practical, affordable and speedy remedy for people, faced with harassers who unabashedly ignore the order of the Court.  Attaching a power of arrest to interdicts at least meant that the police could pick up the harasser, removing them from the environment and detaining them for a very limited period of time- but any further court action remained for the harassed individual to undertake.  

Under the new Act, breaching one of these domestic abuse interdicts with attached power of arrest is a criminal offence, with punishments ranging from a fine to five years imprisonment. Observers of criminal law will be stuck by the extent to which this regime advances the recognisable tendency to blur traditional distinctions between civil remedies and the criminal law. For example, the mere presence of another individual in a particular environment is highly unlikely to constitute a criminal offence - but their presence may cause significant alarm, in breach of interdict. Like anti-social behaviour orders, this Act allows a civil action to generate a sort of "personal" criminal law, criminalising conduct which is lawful for every other person in the community to undertake. Critically, the duty to enforce this "personal" criminal law is substantially transferred by the new Act, from the individual applicant through civil procedures, to the police and procurator fiscal service.

Who does it apply to?

This remedy will be available to limited categories of people. New domestic abuse interdicts can competently be granted against a person who is or was the spouse of the applicant, a civil partner, a cohabittee (defined in a rather old-fashioned-sounding manner as people who live together "as if they were husband and wife or civil partners") and lastly someone who is or was "in an intimate relationship with the applicant". This last section caused a bit of trouble. Our legislators were trying to catch those individuals who are in relationships, but who aren't bidie-ins. A laudable and open-minded aim. The numbers are eloquent - and terrible - estimony to the importance of the provision. As Grant noted in her speech on Wednesday:

"Approximately 11,000 cases of domestic abuse are reported to the police by people who fall into that category as current partners and almost 19,000 are reported by people in that category who are ex-partners."

Parliament is very much to be commended, for trying to contend with the muddle-guddle of reality, whose relationships often defy simple definition, and whose edges are blurred. Even so, the term in an intimate relationship isn't exactly felicitous. Does one live in "intimate relation" to one's flatmates? Many of us, certainly, in terms of physical proximity and emotional attachment. Our business partners?  Maybe not. What about family members? Your brother, your mother? Your priest, to whom you confess your most intimate peccadilloes? Does intimacy imply sexual relations, of whatever intensity or regularity, or not? Robert Brown didn't oppose the amendment, but expressed related qualms:

"... despite Rhoda Grant’s explanation, the phrase “intimate personal relationship” is not in fact defined in the bill and therefore it is difficult to know what a court might make of it. The situations that it covers could range, if I may put it this way, from a one-night stand to a relationship that, despite Rhoda Grant’s explanation, is not necessarily a full sexual relationship, because the phrase “intimate personal relationship” does not necessarily seem to imply that. There are all sorts of definitional issues about what the phrase covers."

The Minister for Community Safety, Fergus Ewing, expressed a touching spent-wick understanding of the end of physical love...

"We consider that “intimate” means that there is a close relationship, but it does not necessarily have to be of a sexual nature—it could be a close emotional relationship in much the same way that a relationship between spouses, civil partners or cohabitants does not have to be sexual."

Although this will likely seem totally bonkers to your average citizen - for many years judges refused to consult the verbatim records of proceedings in Parliament when interpreting what a given piece of legislation meant. Altering that approach, in Pepper v. Hart [1992], the House of Lords held that:

"...reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity."

Fergus Ewing clearly had this in mind on Wednesday with respect to the open-ended terms of "intimacy", when he unambiguously reiterated that the section "is intended to—and we believe it will—capture appropriate relationships between boyfriends and girlfriends but not brothers and sisters." Of course, this doesn't actually resolve the problem of definitions, so much as displace them. When does a casual something become solidified? People may have very different subjective understandings and experiences of these matters, so it seems problematic to imagine that this is a matter of fact, rather than law. Indeed, some folk do actually dwell in domestic settings with their siblings for much of their lives. Like many families, I suspect, a generation or so back, mine included bustling maiden aunts who lived together all their days. Such difficulties of definition are a drear delight to the legally-minded, in the vast majority of cases, I anticipate the main categories of definition should more than suffice. For my part, I very much commend Rhoda Grant for her efforts and hope that this new legal regime will contribute in a constructive way to the safety of our fellow Scots, affording better and speedier remedies to those who live and continue to live, subject who the appalling abuse and harassment of others.


Having published this post earlier, I listened to this morning's edition of the BBC Scotland's Sunday Morning with Richard Holloway. In a rerun of an earlier interview, Holloway's guest was the authoress Janet Paisley.  She speaks deeply movingly about her own experiences of domestic abuse. Whenever you are talking about abstract legal persons, and legal provisions, much of the underlying human experience is neglected. Listening to Paisley's astonishingly poignant, broken-voiced reading of Kipling's poem If is a stark reminder of  the appalling, life-blighting phenomenon Grant's Bill tries, within the limits of law's technologies, to assuage. The programme is available here, for seven days.

18 March 2011

Latest Holyrood poll(s!)

For a Nationalist, faced with a run of Labour leads, plasticity in Scottish polling is encouraging. Even so, the volatility of recent Holyrood polls is certainly keeping us on our toes. Unusually, we have two polls released essentially simultaneously today. Firstly, a YouGov beancount, conducted between the 15th and 18th of March, waylaying 1,300 adults. The full tables, such as they are, can be perused here at your leisure. The topline figures are as follows. In brief precis, the figures are crushingly awful for the Liberal Democrats, and astonishingly polarised between Scotland's two major parties...

Holyrood constituency voting intentions... 
  • Labour ~ 41%
  • SNP ~ 38%
  • Tories ~ 10%
  • Liberal Democrats ~ 6%
  • Other ~ 5%
  • Don't know ~ 18%
  • Wouldn't vote ~ 6%

Holyrood regional list voting intentions...
  • Labour ~ 39%
  • SNP ~ 32%
  • Tories ~ 11%
  • Liberal Democrats ~ 6%
  • Green ~ 5%
  • SSP ~ 4%
  • Solidarity ~ 0%
  • Other ~ 3%
  • Don't know ~ 16%
  • Wouldn't vote ~ 6%
Secondly, ICM also released the findings of their poll. Full details are not yet available, but the topline is as follows...

Holyrood constituency vote :
  • Labour ~ 39%
  • SNP ~ 35%
  • Conservatives ~ 12%
  • Liberal Democrats 10% 
  • Others ~ 4%

On the regional list... 
  • Labour ~ 37%
  • SNP ~ 34%
  • Tories ~ 13%
  • Liberal Democrats ~ 9%
  • Green ~ 4% 
  • Others ~ 7%

Our racialising Census...

I totally loathe the racialising nature of the categories used so often in large-scale, quantitative government research. The old and guilty divisions by pigmentation - black and white - are racialising categories. Period. I cannot understand, on any level, how we can claim that "white" is a plausible ethnic group. Ethnicity explicitly recognises the social and cultural nature of the ties which constitute it. Our understanding of ethnic distinctions ought to be self-consciously poised, mutable and content with overlapping identifies; constructions, constituted by a legacy of our biographical connections, and spurning anything which smacks of the biological concerns of racist theory.

Opening up my census, then, I looked with incredulous disappointment at the questions asked, the options furnished, and the assumptions which the questionnaire implicitly subscribes to. Worse, the census asks us the question what is your ethnic group? Its emphasis is not on ethnic background, your parents or wherever in the world they may have hailed from. Throughout, the questions are obsessed with pigmentation. It is grotesque. Interestingly, I discover that the Census questionnaire differs in different parts of the United Kingdom - and that the offending section on ethnicity is also different, North of the Tweed.  Britology Watch has the full text of both English and Welsh and Scottish questions, and subsequently pens a very sharp post on the implications of this, which largely captures my own feelings. I'd vigorously encourage everyone to read the post and have a think about it. Here's an excerpt from his analysis:

"Spot the difference? In England and Wales, non-white ethnic groups, are not offered the standard option of including ‘English’ as part of their ethnic group: they’re officially classified only as ‘Black British’, ‘Asian British’, etc., and not ‘Black English’ or ‘Asian English’. By contrast, black and Asian persons living in Scotland are permitted to identify as ‘Black Scottish’ and ‘Asian Scottish’.

Not only is the ethnicity of black and minority ethnic (BAME) persons in England and Wales not officially to be classified as ‘English’ or ‘Welsh’, but those latter terms are reserved as ethnic categories exclusively for white persons. I.e., according to British officialdom, if you’re ethnically English, you’re white. If that sounds a bit like the BNP, that’s because this is a form of – indeed, a form for – racial apartheid."

Read the full post here: White and English, but not white-English: how to deal with the discriminatory Census for England and Wales...

16 March 2011

On keeping the agora open... #PatrickSpeaks

See? Isn't five a more elegant number than four?  I've no idea what induced the four Holyrood party leaders and male co-convenor of the Scotch Greenies to congregate, diffidently to fondle a white cardboard box. Bella chortles, the Maximum Eck guffaws - Gray grins - though note Tavish's touching reticence, the tease! By contrast, Patrick Harvie is mustard keen on a parp. No defamation intended. Like Ewan Aitken, I am firmly of the opinion that Harvie should be given the opportunity to put those parping skills to national purpose, and be afforded the chance to put his case to the Scottish people in such televisual debates as are organised by our broadcasters before May's election. That STV and the BBC believe that he ought to be excluded smacks of a grim little Westminsterism that we should vigorously repudiate. Ours is a proportional system. It shouldn't be controversial to suggest that there are various configurations of power which are possible in the many Holyroods that might be elected in May. The Greens, despite their small numbers, may yet enjoy a vital role. But far beyond that, to foreclose discussion in this wholly artificial manner is truly a grim vista - a dreary and distorting media manifesto for contemporary Scottish democracy. These over-zealous wardens of the Scottish agora must be convinced of the error of their ways.

What, you might ask, are the limits of inclusion? 5% of the national vote? List, constituency? What are our settled first principles, from which our debating practices ought to derive? For example, what if, at some future time, a Glaswegian secessionist party triumphed in all nine Holyrood constituencies in the region, but for reasons which will be obvious, didn't stand candidates in the districts of Edinburgh? In or out? Are pan-national candidacies vital? More concretely, what if the redoubtable Margo earnestly petitioned to get her phizog on this time around? Would we briskly turn her out, or add her to squabbling tribe? For my part, I don't think we need delve too far into arcane future hypotheticals to determine that Patrick ought to have his say. Ah, but won't that privilege incumbency? What about Solidarity? The SSP? The Scottish Senior Citizens Unity Party? Certainly, appearing on the telly will doubtlessly privilege existing political groupings to a degree - though only because the voters in the last election decided to privilege particular parties themselves, by voting for them in sufficient numbers to return a parliamentarian. It does not strike me as an unreasonable proposition, to take the last expression of democratic sentiment as our starting point.

The Better Nation chapulets have organised an online petition, calling for Patrick Harvie to be included: "Scotland deserves as thorough and as wide-ranging a debate as can be realistically and fairly achieved", they contend. Quite so. Thus far, it has been signed by some 600 folk. If you agree with the sentiments I've outlined here this morning, I'd encourage you to do the same. As Ewan Aitken says, it is only fair.

14 March 2011

On being the cartographers of a new Scotland...

Those of you who have been lurking about here a good while will be familiar with my ideas about Alex Salmond's speech-making powers. Of his remarks in Aviemore in 2010, and then at the SNP Conference in Perth later that year, I suggested that he performs gallantly enough compared to your average punter or your commonplace politician. However, I've never been wholly convinced that delivering formal, buttoned-up addresses is the Maximum Eck's real forte. For me, his talents are primarily of an extempore character. Here's an excerpt from my earlier posts which sums up my view...

Whatever his virtues, Salmond is not a natural static orator. A whiff of domesticity always seems to cling to him, that near-half-present jocularity that seems ill-suited to a lecture’s stolid gravity and the unspontaneous nature of  pre-prepared remarks. A harangue, he can do, but it will never been a particularly elegant affair. While he cuffs and clubs his way through First Minister’s Questions, he has the interesting habit of producing compound words in the heat of the phrase. Letters are dropped, syntaxes substituted, he roars and plunders on. The word ‘gusto’ seems to suit the First Minister, ironic mirth shoogling his aubergine-shaped frame, quick with the repartee. All of which contribute to a satisfyingly earthen sort of prowess. It isn’t the Senator, imparting sonorous wisdoms with gravity – or managerial listlessness. I’m not sure if I care for the politics of high inspiration, exactly; folk who clamber up on their soap boxes and then conspire to sound like bishops. It is sufficient to make my point, however, to say that I don’t think Salmond takes to this latter character terribly well. He’s more like one of the venal cardinals of Jacobean tragedy, jovially roving about in his belly-puffed red drapery, clutching a tart and a tankard.

His performance at this weekend's SNP Spring Conference in Glasgow tended to confirm my existing feelings. The Corbie has picked over the bones of the speech already. To pry a rib or two from her sharp beak, we should probably begin by asking who are conference speeches for? The serried activists in the audience, certainly - and a media whose shell-likes are bent for quotable passages and concrete messages. Your average voter is unlikely, I fancy, to give much of a fig.  Most of the public are likely to catch such snippets as are mentioned in the papers or those snatches  caught on the telly that evening. Their importance, it seems to me, is primarily atmospheric, allowing emphasis to be placed here or there. The speeches allow narratives and counter-narratives to pursued and buttressed by the press - and by party apparatchiks alike. We shouldn't indulge in a surfeit of poseurish cynicism limiting the good of such gatherings to their instrumental capacity to change public opinion. Conferences ought to be a site for discussion, for the articulation and vindication of collective values, even dare I say, the airing of debates. They're about diffusely enacted solidarity, or something along those lines.  The full text of Salmond's address can be read here. I just wanted to pick up on a few thoughts provoked by its final section.


We have a rich land, but too many of our people live in poverty. We have a 21st century vision, but are held back by 19th century prejudices and structures. We are ready to play our part in the world, to help from the personal to the universal.If we are to become a crucible of the new society. Then we need the power of independence – we must have these powers. And there is only way of getting those, of making further advance. To vote for Scotland, not because we are better than anywhere else. But because we are the same people as people all over the world.

We seek fairness and justice and responsibility. And we are the lucky nation, rich enough to deliver it all, yet we cannot without power. Our sense of the common weal is strong and should not be denied by the rich elites of elsewhere. A Scotland caught between the universality of hope, and the parochialism of power for power’s sake. And as Labour peddle fear we have led hope.

We live in tough times, but when the decision came to protect family budgets, it was straight forward - the council tax freeze stays because it's worth more than £300 to the average family since 2007. The NHS budget could have been cut but for us it was a clear decision - the health service protects Scots young and old. Its budget is safe with the SNP. We have made Scotland secure not by the kneejerk nonsense of locking people up for short sentences, but by putting 1,000 extra police on the street and taking crime to a 32 year low. We have the best team on the park and we govern for the whole of Scotland.

But politics is nothing without a bigger vision. In government, much is in the day-to-day. But you must still keep an eye on the horizon. On the big prize. For us that prize is independence. But independence is a means to an end. That end is a society safe, happy, healthy. Confident in its skin. A global citizen acting to help the world where it can.Because the map makers’ ink is becoming smudged on every border. Globalism, the rise of the knowledge economy, the big economic changes, the great environmental challenges. All point to a world where the responsibility of the nation. Is to raise people who are responsible to the world.

And the definition of a nation is a community of people with a shared commitment to their culture and to their children. By having a strong sense of ourselves. That allows our new communities from Asia to know what it meant to be Scottish. And to give them something to join, to be part of. And that sense of self is built on community. On the shared value of helping each other out, lending a hand. On a sense that society should try to be as equal as it can be. That is what we value and what we think is the purpose of government. To the rights of the ordinary to triumph over vested interests.

In our capital city of Edinburgh there stands a monument to Thomas Muir and his fellow friends of the people. His memory should cast a beam across the work of every civil servant in the Scottish Government and every Minister – because the monument to Muir and his fellows revolutionaries spikes out of Calton graveyard like a shaft of stony light across from St Andrews House. And this monument contains Muir's own vision:

" ... “I have devoted myself to the cause of The People. It is a good cause - it shall ultimately prevail - it shall finally triumph.” ...

And his message was not just for this place, but for every place. For his spirit, for Robert Burns' spirit, Jimmy Reid’s spirit, our spirit. It is for the common weal. The rights of man - and of women. And the legitimacy of the ordinary over the powerful.

This party has travelled a similar path. This movement, this nation, has been patronised, talked down, told it wasn't good enough. And yet this party has risen from a few MPs and a land without a parliament, to a Scotland with a parliament, and an SNP government.

We never lost the strength of hope - and we fought on to triumph. But we, in our mix of the national and the international, of the personal and the political, we fought not to govern over people. But for the people to govern over themselves. It is for that reason and that reason above all that we are the Friends of the People of Scotland and for that reason we shall prevail."

One of the things which has always interested me about the story of Thomas Muir is that his is not a Bannockburn story, or a misconstruction of Culloden along English vs Scots lines. Thomas Muir was ruined by Scottish elites - the despotism of Henry Dundas, 1st Viscount Melville - which was supported by the Tory "crony state" of its day. Taking the relatively moderate Muir to be its inveterate foe, Muir was crushed by Lord Braxfield and an obeisant Edinburgh jury in the High Court of Justiciary at the instance of the Lord Advocate, Robert Dundas of Arniston.  Along with his fellows, Muir was transported to Australia, then escaping to South America with an intention of heading north. The best laid plans... Muir's hopes were frustrated, and  his Candidesque journey was to continue. Ill-fortune stalking his footsteps, he was arrested by Spanish authorities and sent to Cuba, there to await sail to take him back to Spain. Having crossed the Atlantic, his ship was waylaid off the Spanish coast. Shrapnel tore into his face in the pitched naval battle with the British navy that ensued. Horribly injured, he was finally freed from Spain under the auspices of French diplomacy, dying in France on the 6th of January 1799, aged only thirty three. But I digress.

On the main thrust of this final peroration, the Maximum Eck's line from Perth was arguably neater - "I fight not for flags and anthems, but fairness and compassion". Nicola Sturgeon made the same connection explicitly in her address yesterday. Indeed, so pleased was she with the formulation, like Shakespeare, she said it twice, in case you missed it the first time:

"Fairness, justice and equality - these principles are the very essence of independence and that is why we are determined to win it for our country."

We may be familiar with these sort of themes, but we shouldn't forget that it is astonishing to hear nationalism articulated and envisaged in this way. I've long found inexplicable that longing one sometimes encounters amongst Labour supporters for the SNP to be a racist party - or the paranoid certainty that the SNP is "objectively" such a party, and that only a conscious PC fraudulence keeps private hatreds from public view. Nationalists frequently find ourselves responding to a snide managerialism that insists that the public don't care about independence. Annabel Goldie prefers to deploy what I think of as her High Tea rebuttal, which invariably involves "bread and butter" issues, dismissing nationalism as glitter-speckled fairy-cake (or fruitcakery, depending on what Bella's been baking...)  

This is patently an unworthy argument. I'm willing to entertain a vigorous discussion with folk who are pro-Union about the range of values involved. For example, the more thoughtful should be willing to concede that there are areas of policy where the sectional Scottish interest is simply different from some overall assessment of British priorities, refracted through particular ideological lenses. To admit such is hardly fatal for the Union case - for other saving values might be invoked. To put the case most strongly, it is perfectly possible to admit that self-governing Scotland might be better off  economically speaking - but the Union should be maintained. Now, such a position is not necessarily a particularly attractive one to defend - but my point is that it is not necessarily an incoherent view. We're in the realm of substantial politics here and the managerialist vision simply won't do.  It shouldn't satisfy Unionists either. What is an incoherent position, however, is to say that one wants to be independent to transform the character of the Scottish state - potentially to something along more Scandinavian lines - and simultaneously to imagine that ideological questions can be bracketed until after independence. A gradualist independence movement which predicates its political activity on the idea of a better and more virtuous Republic, defined along primarily political rather than ethnic lines - simply doesn't have the luxury of deferring ideological questions. As responses to this post indicated, some of you disagree. As I understand the position, you see the issue being one of the SNP being a vehicle to deliver independence, which will then afford an opportunity to choose what sort of state to choose to be. I disagree and take heart from the fact that Alex and Nicola are beginning more clearly to emphasise that nationalism is about your bread, your butter and your bacon. It is about the plate of food your neighbour sits down to of an evening, or if your neighbour hae no meat and cannae eat. Significantly, the remarks of both Salmond and Sturgeon undeniably go beyond a case for independence based on a delimited promise of bare autonomy.

I have a legal background and a sociological interest. I'm concerned with what actually happens in the world, in detail - rather than the crystalline structure of sovereignty or what was implicitly demurred in Salmond's speech - independence as an end in itself.  That also entails an interest in the concrete - in justice close to home - not a spangled, flighty goddess, pirouetting across the distant heavens. It is for this reason that the croaking, toad-perspective of Unionist managerialism is so deeply unattractive, soulless, heatless, heartless. I have no doubt that it is manifestly insufficient to cry "It is not too late to seek a newer world!". One has to man the oars, to haul and "smite the sounding furrows". However, to borrow an Eckly metaphor, our horizon is lit and our destination chosen according to  our political lights, our conception of justice, our understanding of possibilities and opportunities. Being the cartographers of a new Scotland is vital work, not secondary, not deferrable. I recently channelled Lewis Caroll to have a little fun at the expense of Iain Gray and his brother and sister Labour tribunes, in Punting the Snark. Leap one Fit on, however, and one finds a passable description of the SNP's political nationalism, if it is shed of ideological politics. Salmond is  much to be credited for not making this Bellman's Speech. However, our nationalist map-making is anything but complete.

The Bellman himself they all praised to the skies--
Such a carriage, such ease and such grace!
Such solemnity, too! One could see he was wise,
The moment one looked in his face!

He had bought a large map representing the sea,
Without the least vestige of land:
And the crew were much pleased when they found it to be
A map they could all understand.

What's the good of Mercator's North Poles and Equators,
Tropics, Zones, and Meridian Lines?"
So the Bellman would cry and the crew would reply
"They are merely conventional signs!

"Other maps are such shapes, with their islands and capes!
But we've got our brave Captain to thank"
(So the crew would protest) "that he's bought us the best—
A perfect and absolute blank!"