1 September 2015

Lights, camera, court! The People versus Alistair Carmichael...

When the election court convenes in Edinburgh next Monday, Alistair Carmichael's legal argument is fairly simple. "Sure, I lied. Absolutely, I "misstated my awareness" of the memo and how it was leaked on Channel 4. But that fib wasn't about my personal character or conduct. It was only an ickle political lie. And for that reason, m'lud, my election should be upheld." 

Thanks to STV News, that politically unattractive legal argument will now enjoy a much larger audience than it might have. The broadcaster has secured permission from Lord Carloway - the Lord Justice Clerk - for the whole two days of argument to be broadcast live from court one in Parliament House

Election courts are ordinarily held in the constituency they concern. STV's intervention will afford the people of Orkney and Shetland much-needed access to the debate about their election. The hearings next week are about the law. Nobody is expected to give evidence. The former Secretary of State for Scotland must be hoping and praying the case against him can be kicked without entering the witness box.

"You say you "misstated your awareness" of the leak. What did you mean by that Mr Carmichael?" "In ordinary language, that's lying, isn't it?" "Why did you lie, Mr Carmichael?" "Are you seriously suggesting that, in dishonestly covering up your role in his leak, you gave no thought to the voters of Orkney and Shetland?" "Are you telling this court that your lies were quite disconnected from your own reputation with your electorate in the northern isles?" 

It is always difficult to tell, but I am not convinced that Scotland's only Liberal Democrat MP would cut an unflustered figure on the stand, his career, income and future hanging in the balance. He does not want his cross-examination broadcast on national telly. 

So what are the legal arguments likely to be? I canvassed these to some extent back in May and June, when I suggested that raising an election petition might be possible. But there is no harm in refreshing the issues, now that the issue has bounced back up the legal and political agenda. An election petition is a special procedure for challenging elections under the Representation of the People Act 1983.

The grounds on which elections can be challeged are convoluted and technical -- to such an extent that the Law Commissions across the UK are proposing that the whole area of law be brushed up, simplified and modernised. But this case will be heard under the old legislation. The recent Lutfur Rahman case, where the mayor of Tower Hamlets was turfed out of office by Richard Mawrey QC, gives a flavour of the complexity of this area of law.

The case against Carmichael, however, is much simpler. It focusses on section 106 of the 1983 Act, which empowers the election court to void an election where there have been "false statements as to candidates." There are four main elements to this which the election court will have to consider. First, the basic tests: 
  1. Where a person, before or during an election
  2. for the purpose of affecting the return of any candidate in the election 
  3. makes or publishes any false statement of fact in relationship to a candidate's personal character or conduct they shall be guilty of an illegal practice 
  4. unless they can show that they had "reasonable grounds for believing, and did believe, that statement to be true." 
If an illegal practice can be pinned on Mr Carmichael, his election will be void. Under the Act, a candidate is liable for the lies of their campaigners only to a limited extent.  But if the candidate is the person who has spread "false statements of fact" about a candidate's "personal character or conduct", they are personally liable. It doesn't matter whether or not they were "materially assisted" in their election by their lies. It doesn't matter whether or not the lies made a decisive difference to the result. 

There remains a good deal of confusion out there about what the petitioners are arguing in the Carmichael case. "But Nicola Sturgeon wasn't a candidate in the general election?" "Could you argue that Sturgeon's implied slagging of Ed Miliband knocked the Doncaster MP's chances?" Both of these questions approach the case from the wrong angle. Both Sturgeon and Miliband are irrelevant. The veracity of the leaked memo is also, arguably, irrelevant. The petitioners are arguing that Carmichael lied about his own personal character and conduct in the "Frenchgate" affaire. By dishonestly representing himself a man of honest nature and behaviour, and lying in public about his involvement in the leak affair during the campaign, they contend, he sought to influence his election in Orkney and Shetland.  

On the admitted facts, it is clear (a) Carmichael did lie about his knowledge and involvement in the leaking of the memo (b) he did so during the election campaign and (c) he could not have believed that the statement which he gave to Channel 4, denying any knowledge of how the leak occurred, was true. As a result, the case seems likely to focus on three questions:
  1. Can section 106 be applied to false statements about a candidate's own personal character or conduct? 
  2. Did Carmichael lie "for the purpose of affecting" his own return as MP for Orkney and Shetland? 
  3. And, were the lies he told of a "personal" character? Or did he lie only about his political character and conduct?
To unpack those questions a little further. 

1.  The idea of applying section 106 to lies a candidate may have told about their own character and conduct is novel and debateable. To my knowledge, the Act has never been used in this way before. However, as the judge noted in his Lutfur Rahman decision, the statutory wording:
"... is deliberately wide: 'for the purpose of affecting the return of any candidate at the election.' Although s 106 usually refers to statements made to the detriment of a candidate, the wording is wide enough to encompass a false statement made in favour of a candidate (for example, that he was a substantial philanthropist or had been awarded a medal for bravery) which might affect his electoral chances, albeit positively rather than negatively." [para 104]

Although section 106 has mainly been used to toss out candidates who have slandered their opponents to get elected (for example, Oldham East MP Phil Woolas), as Richard Mawrey QC observes, there is nothing in the language of the statute which excludes the idea of voiding the election of a candidate for fibbing about themselves. But there is at least an argument to be made here. Mawrey's remarks are obiter dicta. If Carmichael's legal team convinces Lady Paton and Lord Matthews that Mawrey was mistaken, the election petition will fall and the petitioners will likely have a hefty legal bill to pay

2.  The election court is also interested in intention. It is important why the lies were told. If Carmichael can convince the two judges that his falsehoods had-hee haw to do with his race in Orkney and Shetland, he's home and dry. His skeleton legal argument, published in June, argued the lies he told Channel 4 were not for the purpose of securing his majority in the northern isles. He didn't elaborate on what they were for. If not for that purpose, then what purpose? 

Carmichael's worry, perhaps, is that intention isn't just a matter of law - but of evidence - and might see the bungling parliamentarian called to testify. And that wouldn't be pretty. But judges might be convinced that Carmichael's misrepresentations of his conduct were of such a general nature, to such a general audience, that they couldn't be tied to the race in the northern isles. This is critical. This is a challenge to the result of the election in Orkney and Shetland only. Not the whole 2015 general election campaign.

3. Under section 106, the court is concerned only with lies about "personal character and conduct." A quotation from a past election petition case in North Louth puts the central point clearly:
"A politician for his public conduct may be criticised, held up to obloquy; for that the statute gives no redress; but when the man beneath the politician has his honour, veracity and purity assailed, he is entitled to demand that his constituents shall not be poisoned against him by false statements containing such unfounded imputations."

Carmichael's argument - which thanks to STV, will be broadcast nationally - is that his lies "relate solely to his public or official character or conduct." Glibly, he was lying as Secretary of State for Scotland, in his official capacity, rather than lying as plain old candidate Carmichael, humbly beseeching the good folk of Kirkwall and Lerwick for their support. It was, in the time honoured phrase, nothing personal

Is this credible? Heather Green has argued not. Politically, you might struggle to convince many punters that this is an important distinction. But it is quite a thing for a court to void a parliamentary election. None of us should be over-keen to see the judiciary, tossing out political candidates which the people, in their wisdom, decided to support. 

General bribery, intimidation and corruption is one thing. Whatever you think of Mr Carmichael - and in my case, it isn't a great deal - his sin here is arguably of a more modest character. By his actions, he has deprived the people of Orkney and Shetland of an open, honest election campaign. He has deprived them of the opportunity to pass judgment upon him with a clear understanding of his personal nature and behaviour. 

That is certainly enough, more than enough, to justify the anger and disappointment of his electorate. But ought it to be sufficient for a court to expel him from Westminster? You would expect Lady Paton and Lord Matthews to proceed in this case with a degree of circumspection. But parliament made these tough election rules. It gave courts responsibility for adjudicating disputes. MPs invested judges with fearsome powers to cut short their political careers. We shall see.

31 August 2015

De-fossilising the SNP

In 1999, thirty five SNP MSPs were elected to Holyrood. 43% of our parliamentarians - fifteen - were women. 2003 was a tough year for the party. The Lib-Lab coalition retained office. The SNP - then reliant on list votes - made several constituency gains but got eaten alive by the surging Greens and SSP in the regions. The total parliamentary delegation slumped to twenty seven, with women losing out disproportionately. Just nine of the twenty seven SNP MSPs returning to Holyrood were women (33%).  

2007's great leap forward under the restored Alex Salmond saw forty seven SNP MSPs returned - up twenty. But against that backdrop of success, once again the party had failed to balance up its gender representation. Only twelve of the forty-seven - 26% - were women. Remarkably, even the 2011 landslide did next to nothing to promote gender equality in the party delegation. Of the 69 MSPs returned, nineteen were women, catapulting the percentage up to a measly 28% of the total. 



Against that stinking record of gender equality, I've been taking a particular interest over the last week in how the party's 2016 slate is shaping up.  On the evidence of recent polling, we can expect the SNP to put in a sound constituency showing in 2016. As a consequence, who the party picks to contest Holyrood's seventy three constituencies is almost certain to have a profound impact on the gender balance of the group elected. In March this year, party conference finally backed the principle of imposing an all women shortlist where the incumbent MSP stands down. 

Given the embarassment of the data presented above, and the party's sustained failure since 2003 to match its growth with growth in its female parliamentary delegation -- you can understand why. The evidence already underscores the importance, and the impact, of that decision. Cue some noises off - the usual Jurassic-era grumblings of frustrated male ambition. But even the general Election of 2015 furnished its own (rather modest) rebuke to Holyrood. Twenty of the fifty six SNP MPs are women - 36%. So how is 2016 looking? 

I've put together this spreadsheet of  who the party has nominated thus far. As you might expect, the imbalance of 2011 leaves behind it a legacy of inequality. Understandably, many of those returned to Holyrood have been keen to stay on. Constituency incumbents will make up 58% of those nominated to stand for the party next year.

Nine serving SNP MSPs are stepping down, including three women: Margaret Burgess, Fiona McLeod and presiding officer, Tricia Marwick.  Two more - Nigel Don and Colin Keir - have taken daggers to the kidneys and been deselected by their local branches in Edinburgh and Angus. Six more still have to make their choice at time of writing: Dunfermline, Glasgow Pollok, Mid-Fife and Glenrothes, Motherwell and Wishaw, Orkney, and Rutherglen,

Taking all of that into account, where are we? Seventy one of the seventy three constituency candidates have now been selected. Twenty eight are women. This represents 39% of constituencies declaring. The  new candidate data tells a better story. In seats where the incumbent (a) stood down (b) has been deselected or (c) where the constituency is held by another political party, the current talley is seventeen women nominees out of the twenty nine constituencies which have declared thus far.  

So what of the outstanding seven seats to be contested? I'd be surprised if the high-profile Humza Yousaf doesn't snatch the Glasgow Pollok nomination. Fife will return a female nominee. (UPDATE: both of these things have come to pass just this afternoon. I am the Brahan seer of Scottish blogging [sic]).  Extrapolating on the basis of these figures, in 2016 the SNP will commend between twenty eight and thirty women to the people, representing 38% to 41% of its total constituency slate. This is real progress. It is to be commended. It underscores why the blunt instrument of all women shortlists was so necessary and so urgent. 

But if every single one of these candidates was elected next May, even the best of these percentages still leaves us in a worse position than 1999. Political parties have only limited control over outcomes. The people decide who to endorse. You have surprise victories and unanticipated defeats. Under the vagaries of the d'Hondt list system, tactical voting is a mug's game. I'm sure the next Holyrood election will be no different. 

But at least the SNP has finally ignored the disgruntled noises off from the unreconstructed - the self-pitying whimper of the stegosaurus, the girn of the disappointed iguanadon - and has begun to defossilise the party's gender representation. Not before time.

21 August 2015

"170 insults to the dead..."

It is over. After a morning's drubbing from counsel for the bereaved families, the Glasgow fatal accident inquiry has heard its last from Harry Clarke. All that remains is for Sheriff Beckett to hear final submissions.

Today's evidence session seems to have proved as unedifying and uninstructive as yesterday's. Mr Clarke continued to invoke his right against self-incrimination. He continued to decline to answer the questions put to him. Practised cross-examiners all, Clarke was gutted by a series of strikingly quoteable barbs from the inquiry's lawyers. 

Significantly, the driver indicated that he would have been willing to answer counsels' questions, if the sword of the private prosecution had not been dangling over him. We don't know if he would have taken the stand and cut a remorseful, more sympathetic figure if Dorothy Bain QC had not introduced the prospect of a private prosecution into proceedings. Perhaps Mr Clarke would, in any case, have behaved as he behaved yesterday. 

But there is a tension between "wanting answers" on one hand, and wanting punishment on the other. Shy away from this conclusion. Sympathise with the fate of those who have been bereaved. Understand their anger with Mr Clarke. Wish he was a bolder man who feared no consequences and wished only to tell his story. All of this I can understand. But the hard truth of it is this: by trying to secure both truth and retribution, the FAI families have made it much more likely that they will secure neither. Understandably, perhaps, none of the coverage in the mainstream media has been prepared to point this out. Harry the doughball, Harry the inexplicable, heartless selfish monster is an easier story to tell. 

This morning's media - unsurprisingly - has put the worst construction possible on Clarke's silence yesterday, suggesting it was motivated by arrogance, inhumanity, or just plain nastiness.  For reasons I set out last night, this image of Mr Clarke leaves out crucial context which puts his behaviour in a more understandable, if not particularly heroic or admirable, light. Questions are now - quite properly - turning to the question of why the Crown Office decided against prosecuting Mr Clarke. Was the decision precipitately taken? The reasons for this decision have been so obscured in the past few weeks that it is worth recalling the explanation prosecutors gave last February. A Crown Office spokesman said:

"It is clear on the evidence at the time that the driver lost control of the bin lorry, resulting in the tragic deaths, he was unconscious and therefore not in control of his actions. 
He did not therefore have the necessary criminal state of mind required for a criminal prosecution. In addition the Crown could not prove that it was foreseeable to the driver that driving on that day would result in loss of consciousness.   
This still remains the case and all the relevant evidence regarding these points was known to Crown Counsel at the time the decision to take no proceedings was made."

The criminal law demands that prosecutors prove not only a guilty act - an actus reus - but also a guilty mind - mens rea. If I intend to harm you, or harm you because of complete disregard for the consequences of my actions, I can be punished. But if my actions were neither of these things, neither intentionally wicked or reckless, the criminal law will not generally hold me responsible for the damage I caused. 

I didn't follow the medical evidence heard by the inquiry closely enough to come to a clear understanding of the expert consensus on whether Clarke's collapse was reasonably foreseeable. I doubt you did either. I don't have the expertise to come to any meaningfully informed view on this question following my own lights. All I have is assumptions -  physiologically ignorant assumptions - which begin with the disaster in George Square last December and work backwards, coloured by the cold and unforgiving light of retrospect. The nation seems to have acquired a suspiciously high number of armchair experts in the diagnosis, treatment and recurrence of vasovagal syncope. I don't know enough - not nearly enough - to exculpate or to condemn.

The Crown have indicated that their decision last Feburary was informed by expert medical material, speaking to these critical issues. It isn't clear whether the inquiry has produced anything new or unexpected which might have rebalanced the assessment towards a prosecution - if only for the minor crimes of dishonesty which Mr Clarke may have committed in his interactions with his employers and the vehicle licensing authorities. Prosecutors seem to be maintaining that nothing which Sheriff Beckett has heard in court number five has surprised the Solicitor-General. 

Nobody in public life should be above reproach. The judgement of no institution should be uncritically trusted. Informed and constructive criticism must always be welcome. To err is, proverbially, human. The existence of fatal accident inquiries attests to this. Sheriff John Beckett QC will shortly retire to consider the lessons which must be learned from this sorry turn of events, to weigh up the medical evidence, to consider whether our safeguards are nearly rigorous enough. On his shoulders falls the heavy duty of piecing together a constructive response to this tragedy. Good luck go with him. 

20 August 2015

"Answer for your actions, Harry..."

As I type, Harry Clarke is being questioned by the Solicitor-General in Glasgow Sheriff Court. Lesley Thomson is seeking to establish the circumstances leading up to the unconsciousness which gripped him at the wheel of his bin lorry last December, and which killed six people. And Harry Clarke? Harry Clarke is mum. Save for the occasional, slightly more detailed response, each question is being met with the same reply: "I don't wish to answer that question." Yet the examination continues unabated. 

Journalists are sharpening their pens. I expect Mr Clarke will be crucified in the pages of the media tomorrow for his failure to answer. But if you are prepared to think critically about the driver's position, and to be fair to him, his silence may not be admirable, but it is rational. It is self-preservation. And more than that, it is almost certainly on his lawyers' advice. Let's unpack this a little. 

Clarke's omerta has been a powerful source of frustration for those close to the trial. The media have reported that family members of those killed have left the courtroom in disgust. But to be perfectly honest, today's spectacle, today's fruitless inquisition, is the logical consequence of some of the families' decisions to charge ahead with the idea of a private prosecution. It should surprise nobody. I'd bet my bottom dollar that the families were well-advised about the implications of raising, or even threatening to raise, a bill of criminal letters against the bin lorry driver. So long as there was any threat of prosecution hanging over his testimony, Mr Clarke was almost certain to take the judicious course and keep his mouth shut. Why?

In our criminal courts, an accused person has a right to silence. If questioned under suspicion by the police, you are obliged only to give some scant details - your name, date of birth, place of birth, nationality - but you are not obliged to answer any other questions. Police officers aren't entitled to interrogate you till you crack under the pressure. It is for the prosecutor - usually, for the state - to establish their case against you beyond a reasonable doubt. If you appear as a witness in our criminal courts, you must answer legitimate, relevant questions which are put to you. If you prevaricate, or refuse to answer, you commit a contempt of court. 

But if you are in the dock, you cannot be forced into the witness box to give evidence against yourself. You are not obliged to answer questions which might incriminate you. In Scotland, at least, your silence isn't - or shouldn't be - held against you.  Countless accused people every year avail themselves of this right, and let judges and juries test the evidence which the procurator fiscal is able to marshal against them. This privilege against self-incrimination is an essential part of a fair trial. If the Crown Office had decided differently, and Harry Clarke had been indicted for some criminal offence, he would have been entitled not to enter the witness box. He wouldn't have to "answer for his actions" at all.

Some of the families of those tragically slain before Christmas last year have indicated that they want to take private criminal proceedings against the Glasgow City Council employee. Looking at the legal hurdles they will have to overcome, I'm sceptical about the likelihood of them securing the blessing of the High Court and succeeding in this endeavour. At this stage, however, the families' intentions remain entirely opaque. What charges would they hope to pursue against Mr Clarke? Fraud? A driving offence? Culpable homicide? 

Some ideas have been bandied around in the pages of the press, but Mr Clarke stands in the witness box today, with no idea what parts of his testimony may or may not be relevant to the private prosecution which some of the families want to pursue. He cannot judge what parts of his evidence might or might not be used against him. Sheriff Beckett told him at the outset that he need only tell the inquiry his name and address. Anything else - any other query - he is entitled to decline to answer. He is exercising that right. At the current rate, he may be exercising it for some hours and days to come in the Sheriff Court. 

But if you found yourself in his position, would you ignore your lawyer's advice? If so, you may well be a nobler and more self-sacrificing character than this man. Perhaps the right thing to do would be to stand behind your deeds and your mistakes, and to take what comes.  Reading reports from the inquiry over the last few weeks, I'm struck by the all too human qualities of Harry Clarke. An unfit, unhealthy man of a certain age with limited education and limited skills. A man who had his trade - and who desperately wanted to keep it. A man who succumbed to the all too human desire to keep his livelihood, little thinking, little imagining, the gruesome consequences of the white lies he thought he told. I don't know about you, but I can see clearly, all too clearly, how this might happen. 

I expect the full weight of public opinion to come crashing down on him today and tomorrow. The principal purpose of the fatal accident inquiry is becoming ever more obscured by the idea that this is the trial of Harry Clarke. But in our legal system, accused people do not have to "answer for their actions", in the Daily Record's phrase. It was only freedom from the risk of prosecution which might have ennabled the driver to speak freely about his faults and failings.

It was only this that didn't require this terribly ordinary man to show extraordinary courage, and candour, and contrition in telling his story. But it turns out he isn't extraordinary, or brave. Few are. I doubt I would be either, in his circumstances. Whether you think it was rightly or wrongly taken, by trying to circumvent the Crown's decision not to prosecute Mr Clarke, the FAI families will suffer again today for two more all too human frailties - for caution, and for fear. 

17 August 2015

Harry Clarke and Criminal Letters

In the Sheriff Court this morning, Dorothy Bain QC, representing one of the families bereaved by the Glasgow bin lorry crash, asked the judge to adjourn the fatal accident inquiry. Bain indicated that her clients want to pursue a private prosecution of the driver, Harry Clarke, whose collapse at the wheel of his vehicle resulted in the deaths of six people just before Christmas last year.

The idea of a private prosecution has rumbled on in the media since Mr Clarke has been transformed in the public consciousness from a blameless, tragic victim of an unforeseen medical calamity of his own to a serially dishonest fainter, clutching a thick sheaf of sick notes and doctors' appointments. 

You will remember: the Crown Office have already ruled out any prosecution of Mr Clarke or his employer, Glasgow City Council. As Professor Chalmers has written elsewhere, the Lord Advocate cannot renounce this statement in the light of the evidence of the Inquiry. Clarke seems immune from criminal proceedings from that direction. 

It remains unclear, however, whether the FAI has adduced any evidence which wasn't known to the Crown when they decided not the proceed against Harry Clarke and Glasgow City Council last February. Remember, the fatal accident inquiry isn't the trial of Harry Clarke - but an opportunity for Sheriff Beckett QC to idenfity what "reasonable precautions" might have been taken to avoid the deaths, and what "defects" in "any system of working" contributed to the death or accident. Even a cursory attendance to the evidence which has been adduced at the inquiry suggests a number of weaknesses in how the DVLA licenses heavy goods drivers, and how Glasgow City Council employs and monitors the health of its licensed staff. Mr Clarke's own reputation is unlikely to emerge untarnished. Lessons to be learned.

Nevertheless, the tarring and feathering continues. The hue and cry for a private prosecution of Mr Clarke - I note that nobody seems to be keeping their beady eye on Glasgow City Council's compliance with health and safety rules - seems the logical conclusion of the current media climate of judgement and recrimination. But how easy is it to secure a private prosecution anyway? What the legal rules and tests involved?

You should be relieved to hear that it isn't all that easy to bring a private prosecution in Scotland. Indeed, if the evidence of the last half century is anything to go by, it is damn near impossible. Procedurally, a petitioner must apply to the High Court for a Bill of Criminal Letters. If granted, the private prosecution may proceed. If refused -- that's an end of the matter.

Recent history throws up only a tiny handful of decisions on whether or not to grant criminal letters. As Professor Chalmers tweeted earlier, sanction for a private prosecution has only been granted twice since 1900. One famous example was the gruesome and harrowing Carol X case of 1982. But the circumstances here seem quite different. So a series of questions for you, for the family, and for the media to focus their minds on. 

Firstly, the commentary has been supremely vague thus far, talking about "bringing a private prosecution" without specifying what offence the families wish to see Mr Clarke tried for. So what criminal offence are the families alleging that Mr Clarke has committed? From what I can see, nowhere in the news reports has any actual offence been alleged. Culpable homicide? Culpable and reckless conduct? Something else? Criminal letters can only be sought for indictable offences, so that rules out summary, less serious statutory complaints. What is it to be?

Secondly, in order be granted the criminal letters they crave, the families would have to demonstrate "very special circumstances which would justify" the Court "in taking the now exceptional step of issuing criminal letters at the request of a private individual". Whatever the charge the families might hope to make, how can the circumstances of this case be said to be "very special", or "exceptional"?

The Crown considered the evidence. They decided a prosecution was not in the public interest. They declared so in public. Press reports have suggested this was based on all of the evidence advanced before Sheriff Beckett. Unless these reports are fundamentally misleading - and we don't know if they are or not - little in the case of the decision not to prosecute Mr Clarke seems "very" special" or "exceptional". We're a world away from Carol X. 

Thirdly, it is often suggested that petitioners stand a snowball's chance in hell of securing their criminal letters and winning their right to prosecute privately unless the Crown supports their case. This happened in the gruesome Sweeney case, and criminal letters were granted for a private prosecution. But a sympathetic Crown aren't the last word on the matter. A 1995 private prosecution for rape foundered despite the acquiesence of the Lord Advocate, on the grounds that the circumstances of the case weren't "very special" or "exceptional".

Which raises another important question. Would the Crown support the bereaved families' Bill or not? If not, the smart money says their case is doomed. But even if Frank Mulholland did reverse ferret, and decide to back the private action intimated today, we're still stuck with the high hurdle of "very special" and "exceptional" circumstances. 

You can understand the feeling driving this action by the bereaved families. Hearing of cock-up after cock-up, dissembling on dissembling from an unhealthy man whose actions and inactions killed their loved ones -- you can only sympathise. But will they secure criminal letters? Will they make the appointment with criminal justice for Harry Clarke which the Lord Advocate ruled out earlier this year? The smart evidence suggests its a fool's hope. 

11 August 2015

Do we really understand English politics?

One of my favourite, counterintuitive political facts is that Oxford has fewer Tory councillors than Glasgow.  The Edwardian stone, the tweedy dons, the unselfconscious wearing of straw boaters - in the Scottish public imagination, you might expect the educational centre of the British establishment to be true blue, all the way. Not so. Oxford wards return precisely no Conservative representatives, while Pollokshields yields up Glasgow's solitary Tory. 

In fairness, the city is a speck of red in the surrounding blue: Banbury, Henley, Witney. Labour are entrenched in east Oxford. The Tories snatched Oxford North and Abingdon in 2010 and held it comfortably after the Liberal Democratic collapse of 2015. But when I first learned this small statistic, it made me wonder: did I really understand English politics as well as I thought? Was I projecting onto, rather than really appreciating, the complexity and ambivalence of the political ideas and identities of the folk who lived around me? 

There is a tendency among Scottish political obsessives - and I count myself among them - to imagine that we understand English politics because we keep abreast of what happens at Westminster. But just as what goes on on the green benches is a poor guide to the constituencies we live in, so too, the Commons feels a million miles away from the sleepy back streets of Oxfordshire, or the noisy conurbations of the midlands and the north. Logical consequences follow. You'll have heard the old gag about the United States and Great Britain being "two countries separated by a common language." The shared language in which American politics is transacted creates an illusion of accessibility. But as we listen to Clinton drone on, or try to follow Trump's latest quackery, you gradually realise that we really miss and misunderstand as much as we appreciate. 

When I moved to the south of England, I also came to realise - a bit guiltily - that was I interpreting the politics of my English colleagues and neighbours using a series of very crude, roughcast ideas. And often as not, my stock characters proved dead wrong. They were false friends. There was the medieval historian - a picture of crusty reaction - who radiated social snobbery but who was a Labour man to his fingertips. His politics recalled the establishment of the old Labour Right: Healy, Wilson, Smith.  A conservative figure - make no mistake - but with only scorn for David Cameron's Conservative government. 

Then there was the bluff College porter who was a dyed in the wool Tory. Not a Scullion, but a tough-minded and conclusive kind of character, satisfied with his lot. Even stranger was the delightful, kind-hearted and subversive old dame who seemed to support little in the party manifesto but who had also voted Tory all her days. Still more perplexing were the floating voters who had ping-ponged unselfconsciously between Labour and the Tories for decades.

It seemed to me like Beowulf voting for Grendel's mother, and vice versa. I struggled even to begin to compute the idea of politics which made these choices seem reasonable and understandable. James Meek did a power of work for UKIP in the same vein in the London Review of Books -- but somehow the idea of a Labour-Tory voter remains elusive. The only two I can think of are Alex Massie and Chris Deerin -- hardly a representative sample of what is a commonplace character in English constituencies. We struggle to take off our Scottish political goggles, and too often, they distort our vision and our understanding.

The political passions of others you met were more obvious. The bumptious former city trader with army affectations might have come from central casting or Tory central office. The young, highly-educated precariat, preoccupied by questions of social liberalism, who once voted Liberal Democrat, but now cast ballots for Labour without much enthusiasm, or tacked Green. The North Oxford Liberal Democrats - wealthy, worthy, perjink - who couldn't vote Labour out of social snobbery, and declined to support what they saw as the vulgar, worldly Conservatives for much the same reason. This mortgaged, property-owning tribe were entirely unmoved by the 2010 coalition and continued to return local Liberal representatatives with thumping votes. Theirs was a liberalism of the polite centre.  

But having spent a number of years living south of the border in growing suspicion -- more and more, I find my own prejudices a poor guide to English politics. Perhaps they always were. But the political conversation north of the border has now diverged so significantly from the experience south of it, I now acutely mistrust my own impressions. In Labour politics, the importance of these issues and judgements are now acute.

If Jeremy Corbyn wins the UK Labour leadership, can he carry the country in 2020? Will England warm to him, disappointing his many detractors who cry him "unelectable"? Or is Liz Kendall right - that only tough medicine will do and that Labour must make further concessions to Osborne's vision of Britain to win again? Judging this correctly is critical for Labour's future. A couple of weeks back, SNP spinner Erik Geddes posted this fascinating table on Twitter. Based on research by YouGov, it asked what folk thought were the most important reasons for Labour's defeat in 2015.


The divergence between the explanations giving in Scottish and English samples are revealing.  The preoccupations which drove Labour's disastrous showing in May north and south of the border are fundamentally different. They are seen differently. Andy Burham is, I think, dead wrong to argue that Labour's route back to power runs through Glasgow. 2015 did not represent a temporary blip, but a generational shift in political allegiances north of the border. It wasn't a sudden change, but the logical consequence of decades of Labour decline. It only completed the process which has been chipping away at the party's electoral performance for years.

To put it at its harshest, if UK Labour's route to victory runs through Glasgow, then Labour is going to continue to lose to their Conservative opponents for the foreseeable future. Finding a winning strategy for England is essential. I have no idea which of the four candidates - if any - is best placed to do so. However, in striving to identify that winning strategy, they'd be well-advised to ignore the advice of their Scottish comrades, critics and fellow-travellers. We just don't get it.

10 August 2015

What are fatal accident inquiries for?

It's a fundamental question -- but listening to tonight's news headlines on BBC Radio Scotland, I found myself wondering if the answer to it is well understood. 

The airwaves have been crackling with stories about the health and lies of Harry Clarke for some weeks now. The Sheriff Court has heard evidence from a score of witnesses, suggesting that the Glasgow bin lorry driver was less than honest about his medical history during his recruitment by the City Council, and in his dealings with his medics and the licensing authorities. 

Striking, accusatory front pages are mounting up against him. Talk has turned to the feasibility of his private prosecution, after the Crown Office ruled out proceeding against Mr Clarke. Others are suggesting the driver ought to be liable to prosecution on a charge of fraud at common law. James Chalmers of the University of Glasgow has covered the issues well here.

These inventions cannot make comfortable reading for Mr Clarke - from whom, as yet, Sheriff John Beckett QC has heard nothing. Kenneth Roy worries that the FAI has been transformed into the trial of Harry Clarke, And listening to and reading the coverage of the proceedings before Sheriff Beckett, I can understand why the casual listener might find it easy to mistake the inquiry for an assize into the the life and lies of the now much-maligned Mr Clarke, whose white lies could be seen to have contributed to an unnecessary tragedy. But it is important for us to bear in mind (a) what fatal accident inquiries are for and (b) what precisely Sheriff Beckett will and will not be called upon to decide when he concludes hearing evidence.

First, the nuts and bolts. As you are probably aware, in Scotland, we have no echo of the English system of coroners' courts and inquests.  The Procurator Fiscal is responsible for investigating deaths and ordering autopsies if these are warranted. In addition, the Lord Advocate can apply to the sheriff to hold a public fatal accident inquiry. These are particularly important where an individual dies while in the custody of state authorities. The chief public prosecutor may also do so where they judge that it is:

"... expedient in the public interest ... on the ground that it was sudden, suspicious or unexplained, or has occurred in circumstances such as to give rise to serious public concern."

So what is it the sheriff's responsibility to decide? First, let's clear away some obvious misconceptions. One: the judge cannot decide on criminal or civil liability. They cannot jail or fine anyone. They cannot award damages or compensation. An FAI is not a criminal accusation or a personal injury claim. These are separate questions, requiring separate legal proceedings. 

Even if the judge reaches searing conclusions about individual or organisational negligence or incompetence - the FAI isn't a criminal case. The procurator fiscal isn't prosecuting - they are trying to assist the sheriff to get to the bottom of the case. So what will the sheriff have to decide? The Act charges him with five key duties. Having heard all the evidence, Sheriff Beckett must set out: 
  1. Where and when the death and any accident resulting in the deaths took place;
  2. Identify "the cause or causes of such death and any accident resulting in the death";
  3. What "reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided";
  4. "the defects, if any, in any system of working which contributed to the death or any accident resulting in the death"; 
  5. And finally, "any other facts which are relevant to the circumstances of the death."
The immediate cause of the accident seems tolerably well established. The driver of a collosal vehicle lost consciousness, losing control, tragically slaying six people in the middle of Glasgow on the 22nd of December 2014. But it is the legislation's emphasis on identifying systematic problems and institutional failures which has prompted the forensic analysis of Mr Clarke's medical history, and his failures to disclose these to Council authorities in seeking employment, and to the licensing authorities when in employment. 

Reading between the lines, Lesley Thomson's questions should not be understood trying only to pin the blame on the driver. The Solicitor General is trying to help the court illuminate and identify structural problems, and those opportunities which may have been missed - by the Council, by the DVLA, and indeed, by Mr Clarke himself -  to pre-empt and prevent this tragedy. An FAI isn't just a day in court. 

Its goal isn't - primarily - to give the families of those who have been slain the satisfaction of seeing the circumstances of their kin's deaths publicly explored. In principle, their purpose is more utilitarian - and perhaps more useful. What went wrong? What could we do differently? Let's look at these events critically. What lessons does a careful reading of the evidence suggest to us? WHat weaknesses in our procedures has it identified? These questions are now beginning to crystalise in the court on the south bank of the Clyde. 

Could additional safeguards be built into the system for recruting and monitoring heavy goods drivers? The answers to these questions may be unsatisfactory -- sometimes human systems fail. Sometimes little else could have been done to prevent ghastly things happening. Sometimes a sheriff can spot substantial problems -- and give our public authorities a useful steer in remedying them. But  in the torrent of scorn now engulfing Mr Clarke, and his mistakes, let's not forget that fatal accident inquiries are not criminal courts. Let's not forget what this trial is really all about.