12 October 2015

Carmichael questions, Carmichael answers...

In Parliament House in Edinburgh today, Lady Paton and Lord Matthews reconvened the election court, investigating the return of Alistair Morrison Carmichael as MP for Orkney and Shetland. Earlier, the two Court of Session judges held that the case against Mr Carmichael under s.106 of the Representation of the People Act 1983 couldn't be kicked on legal grounds alone. "We wish the hear evidence", the two judges said. Today, the judges set down a timetable for the hearing of that evidence. And equally importantly, deciding (a) where it would be heard and (b) whether STV would be entitled to film the oral evidence of the former Secretary of State, and other witnesses. 

So what are the important details? Firstly, the case has been set down for four days from Monday the 9th of November. The final list of witnesses will have to be produced later this month. This is a formidable length of time to hear evidence. Reports of today's by order hearing are limited and incomplete -- but the time scheduled suggests that the election court may hear from a significant number of witnesses. The petitioners are seeking to establish that Carmichael's lies related not only to his political conduct and character -- but extended to his personal conduct and character also. It remains unclear how precisely this will be demonstrated -- but we might hear from a surprising range of people in pursuit of this aim.

Secondly, there is to be no change of venue. Generally speaking, election petitions should be heard in the constituency concerned. This, to allow locals - electors - to attend the court proceedings and to hear the case both for and against the Member of Parliament they have returned. Today, Lord Matthews and Lady Paton have decided that the Carmichael case should continue in Edinburgh. There will be no decamping to the sheriff court in Lerwick to hear testimony. 

But the judges have also kiboshed the idea that the evidence - and cross-examination - of witnesses should be televised. This, argued Lady Paton, would "create a risk to the proper administration of justice". The final submission of lawyers for the two sides can be broadcast -- but unless you hie yourself along to the Court of Session -- you won't be able to see the former Secretary of State's account of himself and his behaviour. On one level, this decision is unsurprising. Cameras are a new phenomenon in Scottish court rooms. It was, perhaps, naive to image that the election court would cross the rubicon so hastily, and allow the evidence in this case to be broadcast live. Instead, we'll have to rely on scribbled transcripts in the media. 

A few other questions suggest themselves. Firstly, could Carmichael avoid all this by simply standing down and contesting the subsequent by-election in the northern isles? Under the Representation of the People Act -- he couldn't. Under s.139 of the 1983 Act:
The election court will sit until it reaches a conclusion. The court's judgment - one way or the other - is now inescapable. But could the former Liberal Democrat Secretary of State simply decline to give evidence before Lady Paton and Lord Matthews? Again, the answer is no. Carmichael must appear if summoned. Under section 140 of the Act, the election court has power to require witnesses to appear before it. And if they fail to do so? They commit a contempt of court. There's no escaping this assize.

But even if Carmichael appears in the witness box, does he really have to answer all of the questions put to him? Can't he stonewall, or evade, or otherwise decline to assist the court in its deliberations? No dice here either. Under section 141, witnesses don't even enjoy a privilege against self-incrimination before an election court. And a prevaricating witness commits a contempt of court. There is no escape -- no legal bolt hole -- for Mr Carmichael in the four corners of the 1983 Act. He has no option but to stand in the witness box, and to answer the questions which will be put to him directly and truthfully. For a politician, more used to fencing with journalists, and providing apt but evasive answers -- this is likely to be an unfulfilling, embarassing, and potentially disastrous personal experience.

Mr Carmichael may have escaped the horrors of a televised cross-examination, but he must be anticipating the next stage of this case with little relish. His way is littered with thorns. Every step - every misstep - risks slurping this tarnished, unbruising bruiser, into another political sinkhole. Wise man say: help me Rona.

6 October 2015

Mortgage fraud

As readers may have noticed, there has been a deafening silence at the heart of this blog on the Michelle Thomson affair. There are several reasons for my reticence about breenging into the fray. The first is consciousness of my own limitations. There are a number of areas of law which I understand pretty well: conveyancing and property transactions are not among them.

The second reason for circumspection is the active investigation into the case currently being undertaken by Police Scotland. Scottish political comment already has far too many folk reaching bold and decisive conclusions based on limited information and limited understandings of the processes which saw Christopher Hales, Michelle Thomson's solicitor, disbarred by the Scottish Solicitors' Discipline Tribunal in the summer of 2014. I'm disenclined to add to it. 

But the sheer weight of guff circulating in the public domain on this warrants a small, measured intervention. So here it is. Firstly, if you want to understand what the case is all about -- go straight to the source material. The Discipline Tribunal's decision is long and often technical, but read with a little care, it is clear. Some of you may be disinclined to credit it, but from everything I have been able to gather in the days since this story first broke, Ian Smart's summary of the issues lying behind the Hales decision was more or less bang on. It's worth remembering that although Ian has a partisan political perspective, and sometimes comports himself in a way which does him less credit than he warrants, he is no fool. He is also a solicitor of many years' experience, whose bread and butter work is selling houses. The rules Hales broke apply to his work, day in, day out. 

In Scots law, fraud is defined as a false pretense which secures some practical result. If you turn up at a restaurant, sit down, and set about the menu, you are cultivating the impression that you intend to pay for the food you eat and the wine you drink. If you beetle off without having settled up your final reckoning - you are a fraudster. If you convince me to lend you a sum of money with no intention of paying it back, you are a fraudster. But this week's topic is the esoteric question of mortgage fraud.

Why? Because in June 2014, the Scottish Solicitors' Discipline Tribunal stuck off Christopher William Hales, an Edinburgh lawyer, who had facilitated a range of transactions by a Mrs A and her husband. Why was Hales struck off? The tribunal's judgment sets out its reasoning at some length -- so much length, in fact, that some folk are stuggling to see the wood through the trees.  But first, some context. We have to understand something about the CML handbook. The handbook is produced by the Council of Mortgage Lenders, and imposes particular duties on solicitors who handle property transactions. In particular, the handbook sets out the following rules which lawyers are expected to follow in completing the sales of houses subject to standard securities (mortgages):

5.1.1 Please report to us [the mortgage provider] if the proprietor has owned the property for less than six months, or the person selling to the borrower is not the proprietor. 
5.1.2 If any matter comes to the attention of the fee earner dealing with the transaction which you should reasonably expect us to consider important in deciding whether or not to lend to the borrower (such as whether the borrower has given misleading information to us or the information which you might reasonably expect to have been given to us is no longer true) and you are unable to disclose the information to us because of a conflict of interest, you must cease to act and return our instructions stating that you consider a conflict of interest has arisen.

But why apply these rules? Why should solicitors be expected to advise mortgage providers of this information? The short answer is this: back-to-back property transactions and tricky mortgage arrangements are classic features of modern mortgage fraud. The nub of it is this: failing to disclose all the critical information to lenders in order to convince them to lend you more than the property you are purchasing is worth -- that is the potential fraud.

The Law Society of Scotland offers this advice to solicitors on identifying when their clients may be trying to dupe them - and their mortgage providers. Its guidance is pretty clear and simple. There are a number of warning signs which lawyers need to keep an eye out for. These include:

  1. Has the property been owned by the current owner for less than six months? 
  2. Has the value of the property significantly increased in a short period of time? 
  3. Is the mortgage for the full value of the property? 
  4. Is the deposit being paid by someone other than the purchaser? 
  5. If there is money left over from the mortgage after the purchase price has been paid, are you being asked to pay this money to the account of someone you don't know, or to the introducer, or to someone else on the client's instructions? 
  6. Have you been asked to enter a price on the title that is greater than you know was paid for the property?

If you dig into the tribunal's Hales decision, you will find that a large number of the thirteen transactions faciliated by Mr Hales bear features characteristic of this kind of mortgage fraud. These features aren't decisive. They can have perfectly innocent explanations. But they trip warning lights. Here's a useful summary of what is known as "flipping fraud" and back-to-back selling:

The scheme known as 'flipping fraud' involves purchasing property and re-selling at an inflated price within a short space of time to a buyer with a high LTV mortgage greater than the value of the property. The true nature of the transaction is concealed from the lender and may also involve dishonest or negligent professionals. A typical example is: 
A sells property to B for £75,000. B quickly sells the same property to C for £125,000. The true value is £75,000. C obtains a 95% mortgage with ABank who is unaware of the sale from A to B. If B and C are fraudsters in league, C will obtain a mortgage of £118,750 against a purchase price of £125,000. B and C use the £75,000 mortgage advance to pay A, then disappear with the remaining £43,750. Such cases will almost always involve a valuer who overstates the market value of the property and a solicitor who fails to notify the lender of the transaction between A and B.

And this is the critical section of the judgment which ended Hales' legal career:

The Tribunal had no hesitation in making a finding of professional misconduct. There were numerous breaches of the CML Handbook in respect of 13 different transactions involving an ongoing course of conduct which continued for a period of over one year. The Tribunal has made it clear on numerous occasions that institutional lenders are clients of Respondents in the same way as any other clients and are owed the same duties of care. The CML Handbook has been instituted to help prevent mortgage fraud and emphasise the reporting duties on the part of solicitors. 
In this case the Respondent had a clear duty to report the back to back transactions, cash backs, increases in prices and deposits being provided by a third party to the lender. These matters would have been very likely to have had a material effect on the lender’s decision to lend. The Tribunal consider that the features of these transactions were such that the Respondent must have been aware that there was a possibility that he was facilitating mortgage fraud, whether or not this actually occurred. He generated fees on the basis of allowing this to occur. It must have been glaringly obvious to the Respondent that something was amiss when cash backs of £27,000 or £28,000 from the seller to the purchaser were involved.

Even if you read this paragraph - and only this paragraph - from the decision - it scotches the idea that this is an empty and partisan scandal whipped up by a hostile media. There may be a good explanation for these transactions. There may be no wrongdoing here whatever. But Hales was kicked out of the legal profession because his failure to observe the rules may well have covered up behaviour characteristic of mortgage fraud. Of course there had to be a police investigation. Lawyers are facilitators and professional functionaries. We don't know why Mr Hales failed to keep the mortgage providers properly informed. Only by being investigated thoroughly will the answers to these questions become clear.

But as ever, politics and calculations of political advantage intervene and distort the reporting. Labour are going great guns on this story, demanding that the Lord Advocate should appear to answer questions in the chamber. Frank Mulholland QC appeared in Holyrood this afternoon. His answers - unsurprisingly - focused on when prosecutors received all of the information on the Hales decision from the Law Society of Scotland. There are real public interest questions for the Society to answer about how this case was handled, and how other cases of this kind are handled.

The Society has a vital regulatory and public function. You might expect the phrase "mortgage fraud" in a decision to ring alarm bells. So why did it take them so many months to communicate the outcome of the Hales case to the criminal authorities? Law's delays? "Pressures of work", as Law Society chief executive Lorna Jack said at a recent conference? We do not know. Or at least, not in detail. Hales was prosecuted before the tribunal and struck off to protect the public. But public protection surely cannot cease when a disciplinary tribunal has reached its conclusion. The Law Society has a wider duty - not just to lawyers - but to society at large. We can expect today's appearance by the Lord Advocate to turn up the heat.

But after the Lord Advocate had spoken, blundering Jackie Baillie decided to go too far. Not content with the facts as we understand them - not content with the allegations currently being investigated - today she uttered this gem in the Holyrood chamber. She said:
"The Lord Advocate is right not to rule out action under the Proceeds of Crime Act. Vulnerable families have lost out because of the alleged actions of people trying to make a quick buck. In the interests of justice it's only right that those who allegedly profiteered from vulnerable families don't get to enjoy the benefits of their immoral actions."

Reading this quotation, you might get the impression that the investigation prompted by the Hales decision turned on the fraduluent manipulation of people who sold their houses to Michelle Thomson or her business partners. You might get the impression that the "mortgage fraud" in the headlines concerned the initial purchases and the amount paid. But there is nothing like this in the Hales judgment whatever. This scenario has marched straight out of Jackie Baillie's head.

On the facts set out in the Hales decision, it is the mortgage providers who are the potential victims of  any alleged fraud -- not the sellers who completed their transactions with Mrs A and her associates. A number of the loans now being investigated were taken out with Birmingham Midshires - a trading name for the Bank of Scotland. I don't know about you, but I struggle to see the bank as a "vulnerable family", however cosy its declared corporate ethos.

You can understand folk wishing they'd been paid more for their houses. But with certain exceptions, the law doesn't prevent you from striking a hard bargain or getting a lower price than you hoped for your property. That isn't what this criminal investigation is about, and Jackie Baillie must know that this isn't what the investigation is about. Her innuendo cannot be defended as a political point about the ethics of landlordism either. Her invocation of the Proceeds of Crime Act was presumably premediated. But given the opportunity to stick to the facts, she declined.

Full of political mischief, blinded by partisanship, she decided to lob yet another ripe red herring into the heart of this difficult affair. You might well think that a wise person, a prudent person, condemning alleged falsehoods, would do well to ensure that their own comments are not misplaced and misleading. Not Jackie Baillie, it seems. Blockheaded, forked-tongued, her contribution actually serves to obscure the real, serious, challenging legal issues raised by this matter by over-egging them. All for the sake of a partisan barb without legal foundation. This kind of thing is the worst of politics.

Let the criminal investigation proceed. As the Lord Advocate says, let's "follow the evidence". Let's ignore the baseless, breathless political sidelines. The rights and wrongs of this matter will, surely, become clear in time.

5 October 2015

"Labour is coming home. Come home to Labour..."

Since the Labour conference in Brighton, I've been trying precisely to pin down why I found John McDonnell's "come home to Labour" riff so irritating. Alex Massie captures some of the reasons in his stinging Spectator blog. My article in the latest edition of the Drouth harps on a similar string. But the sense of Labour entitlement implicit in the phrase "come home" has always been vexing. It was, after all, common enough currency among Scottish Labour's old guard. Celebrating the party's stonking 2010 general election win, Douglas Alexander gushed: 
"Right across Scotland, people have come home to Labour. We've never taken Scotland for granted, we've worked for every vote this evening and we've enjoyed success as a consequence of a great deal of hard work."
And in pursuit of victory in that election, Gordon Brown repeated, again and again:
"At this moment of risk to our economy, at this moment of decision for our country, I ask you to come home to Labour."
A quick search on LexisNexis turns up a mighty 196 news articles which use some variation of the phrase. Entertainingly, one of the earliest instances emanated from one Anthony Charles Lynton Blair.  In his keynote address to 1996's October conference in Blackpool, the Labour leader told party delegates:
"I don’t care where you are coming from; it is where your country is going that matters. If you believe in what I believe, then join our team. Labour has come home to you, so come home to us. Labour’s coming home! Seventeen years of hurt never stopped us dreaming. Labour’s coming home! (Applause) As we did in 1945 and 1964, I know that was then, but it could be again – Labour’s coming home. (Applause) Labour’s coming home. The people are coming home."
And a mere nineteen years later, one of Blairism's most inveterate foes in the parliamentary Labour Party is giving it precisely the same "come home" patter? How's that for eternal recurrence? As seems increasingly to be the case with his efforts, the speech did the job for Blair in 1996, but today is nigh unreadable. This political message has been brought to you by the Simpsons' Nelson Muntz and the phenomenon of AWOL daddies who've just nipped out for a pint of milk and a packet of fags. Come home, papa. Come home. *sniffle* 

I'm conscious that gags about flipping political real estate may be regarded as being in poor taste at the moment - but we can only assume that the Labour party has moved neighbourhood in the intervening period. That said, it seems apt - or at least divertingly ironic - that both the inception and the death of the Blairite project in the Labour Party are being announced and celebrated in precisely the same terms. Labour is coming home. Come home to Labour.  Any number of wise clichés suggest themselves here: in my end is my beginning; and "history repeats first as tragedy then as farce."

But it isn't even this which really irked about McDonnell's presumptious, previous declaration that "Labour is now the only anti-austerity party" and that the Plain People of Scotland should biddably "come home". I couldn't quite put my finger on the real source of my disgruntlement, until I read Iain MacWhiter's bit in the Sunday Herald, and the thought suddenly crystallised. 

Labour's new left leadership are running two distinct and incompatible strategies which together conspire to make McDonnell's "come home" schtick simply unendurable. Across the UK, the new party leadership are currently all honey and amelioration and consultation. Shadow cabinet members have been unshackled by anything approaching collective responsibilty. To describe Labour Party policy as incoherent at present would be charitable: it is motley. I appreciate honest policy disgreement as much as the next fellow - more than most, in fact - but there is simply no coherent political expression to be plucked from this mangled policy haystack. You name it. Trident renewal, tuition fees, budget discipline, railways, energy, "people's quantitative easing": it is a boorach.

And worse, the leadership seems isolated and listless rather than fighting its corner within the fractuous and divided ranks of the parliamentary party. Whatever calculations the Corbyn-McDonnell axis are making behind the scenery, on policy, the spirit of left capitulation seems general, sacrificed on the altar of party unity. Consultation is the watchword of the day. And Jeremy seems more preoccupied with facilitating party democracy than he does with securing the victory for his own viewpoint. 

The impression may be unfair and mistaken -- but Mr Corbyn seems prepared biddably to assent to whatever policy compromise his party is prepared to yield up to him. As a saintly democrat - this all may be perfectly commendable - but if you wanted an invertebrate to lead the UK Labour Party, Andy Burham was already on the ballot paper. 

But in Scotland? In Scotland we are invited to conclude that only the views of the party's new leadership are in any sense consequential, however few followers Mr Corbyn and his vicar on earth actually command on their own Commons benches. We are invited to forget awkward memories of recent votes on the Welfare Reform Bill, which propelled Corbyn to the front line in the leadership contest. "Labour is now the only anti-austerity party".

In every other context, we are encouraged to believe that the new leader has a frail and self-depracating democratic voice - one among many, many of whom disagree with him. But in Scotland? In Scotland, only the sentiments of this isolated and embattled leadership matters. Come home to Labour. I'm reminded of King Richard the II's melancholy reflections on a Welsh beach, in Shakespeare's play of the same name. "For God's sake," said King Richard:

"... let us sit upon the ground And tell sad stories of the death of kings. How some have been deposed; some slain in war, Some haunted by the ghosts they have deposed; Some poison'd by their wives: some sleeping kill'd; All murder'd: for within the hollow crown That rounds the mortal temples of a king Keeps Death his court and there the antic sits, Scoffing his state and grinning at his pomp, Allowing him a breath, a little scene, To monarchize, be fear'd and kill with looks, Infusing him with self and vain conceit, As if this flesh which walls about our life, Were brass impregnable, and humour'd thus Comes at the last and with a little pin Bores through his castle wall, and farewell king!"

There will be no monarchizing from Jeremy. No fear. No killing looks. As Iain MacWhirter lays out, it is difficult to find the policy issue where Corbyn hasn't tacked and trimmed, compromising and accommodating himself to his many deprecators in his own party. But in Scotland? In Scotland, we must think on the increasingly hollow crown Jeremy wears, enjoy its glitter, and "come home" to Labour like good bairns. And so farewell, king.

30 September 2015

The Little Engine That Couldn't

Choo, choo. At the risk of repeating myself, we really have to nail this one down: the Scottish Government does not have the legal power to take railways into any kind of public ownership. There aren't shades of grey here. There aren't knotty legal complexities. It is clear as day. Clear, apparently, to everybody except the new leader of the Labour Party. 

Interviewed by Gary Robertson on BBC Good Morning Scotland this morning, Jeremy Corbyn decided not to retreat from the inaccurate charges he laid at the door of the Scottish Government last Sunday. Instead, he chose to reiterate and elaborate on his allegations (from 02:40:00 in). And it is sorry, sorry stuff.

Robertson: "You also said on Sunday that they [the SNP] were behind the privatisation of ScotRail. Do you accept that that was wrong?" 
Corbyn: "No I don't think it was wrong at all, because I think - again - they could have taken a different option and could have pushed for public ownership rather than handing it over to the Dutch public." 
Robertson: "But that was about - again - that was about the franchise, wasn't it? Their argument is that in 1993, that was when ScotRail was privatised." 
Corbyn: "The franchise, yes. But I do think they had a choice, and they could have exercised it to ensure that ScotRail remained - or, er turned, rather - into full public ownership. Surely that would be a much better way of doing things. And indeed the Labour policy, overall, is to return the franchises and the rail operating companies into public ownership, so that we all get the benefits of the rail service and the profits that go with it."

This is a mess. Actually, it is worse than a mess: it is a sleekit politician's answer. And worse, I'm afraid, it is a lie. So let's strip it all back to basics. If Holyrood passes legislation which "relates to reserved matters", the law is void. If Scottish ministers act beyond their powers, they behave unlawfully and a costly and damaging trip to the Court of Session beckons. If we rummage through Schedule 5 of the Scotland Act 1998, which sets out these reserved matters, we find the "provision and regulation of railway services". Holyrood can't change the Railways Act of 1993

And it is the 1993 Railways Act which sets out the legal process for tendering rail passenger services. This was the instrument of rail privatisation - not the Scottish Government's October 2014 decision to award the new tender to the Dutch company, Abellio. Only Westminster can change the rules. And what do we find in section 25 of the 1993 Act? Oh look. A provision which says - clear as day, black and white - that "public sector operators" can't be rail franchisees. And how are we defining public sector operators? That is any company or subsidiary which is majority owned by ministers, or civic government. That test binds the Scottish Government. That seems to catch the kind of operation Mr Corbyn has in mind. 

The new Scotland Bill finally proposes to tweak the Railways Act to make it clear that, in future, section 25 will not "prevent a public sector operator from being a franchisee in relation to a Scottish franchise agreement." In future, a "people's Scotrail" will be possible, in Scottish Labour's campaigning phrase. This is well and good: a positive development which will allow the merits and demerits of a public sector bid to be explored during the next round of tenders. But on the 8th of October 2014, the Scotland Bill was a dim speck of light on the horizon. 

On the 8th of October 2014, Lord Smith of Kelvin hadn't even held his first meeting with party representatives to negotiate the next stage of devolution. There was no timetable to change the tendering rules, no legislative proposal being scrutinised. Just wooly aspirations, a Tory government and a Labour party dragging its feet on the future powers of the Scottish Parliament. Until the ink was dry on Smith, and the Bill had been introduced, it was anything but clear whether Holyrood would be empowered to consider the kind of public sector bid the new Labour leader understandably favours.

But don't believe me. I refer you to the analysis of Kezia Dugdale's predecessor as Scottish Labour leader, Jim Murphy, who blogged that he wanted to:
“... see better, cheaper public transport. The Smith Agreement means we can have a ScotRail that is serving commuters, not shareholders. The current ScotRail franchise sees money going straight from the public purse to shareholders pockets. The incoming one will see Scottish public money support transport infrastructure in Holland. Neither deal is the best deal for Scotland when commuters are waiting on late running services, paying over inflated fares whilst being squeezed against train doors on overcrowded journeys. The best deal for Scotland is a People’s ScotRail, a railway company whose commitment is not to a group of shareholders or a foreign Government, but to the people of Scotland.”
The merits of a public sector bid are one thing. But even the People's Scottish Jim for Scotland - not averse to throwing any old brickbat at the SNP - recognised that what he wanted to do with the railways wasn't yet legal. Even Mr Murphy declined to slag off the Scottish government for failing to do something which the law prevents them from doing. And yet, given a golden opportunity to clarify his remarks - in the interests of straight talking and honest politics - Mr Corbyn doubles down on his wrong-headed claims. 

So taking all of that into account, a few questions. In what sense, Mr Corbyn, could the Scottish Government "have taken a different option" on rail franchising? What "choice" of "full public ownership" did the law give them? Are you seriously suggesting that failing to convince the UK parliament to change the law amounts to an SNP privatisation agenda in all but name? Does that seem fair to you? Do you think most people, listening to your interview, would have understood this was really what you meant? Or do you think the half-attending average punter would be left confused and deceived by your remarks?

You began by suggesting the SNP privatised the railways. Now that has morphed into a claim that they could have considered a public sector bid, but failed to do so, which was bad. But a thorough examination of the law shows us that the parliament in which you sit made it legally impossible for Scottish ministers to entertain the public sector bid you desire. The Scotland Bill, currently going through the parliament in which you sit, underscores the point and fatally undermines your argument. So in what sense did the SNP privatise the railways? Oh dear Jeremy. Straight talking, honest politics my foot. 

I think I can, I think I can, I think I can, said the Little Engine That Could. But thinking doesn't make it so. 

29 September 2015

"We wish to hear evidence..."

It's perhaps appropriate that I didn't have time to blog about the election court's Carmichael judgment this afternoon. I was giving a lecture to our young lawyers on Socrates, Plato, and that most basic and most intractable of questions, "what is justice"? 

Cast your mind back, if you can, to the two days of hearings earlier this month. The petitioners' case is based on section 106 of the Representation of the People Act, which penalises making "false statements of fact" in relationship to the "personal character and conduct" of a candidate during a general election. The petition has next to nothing to do with Nicola Sturgeon, or at least not directly. Mr Carmichael is the candidate. By advising Channel 4 and the nation that he hadn't the foggiest clue how the Scotland Office memo found its way into the public domain, the Orkney four argue that Mr Carmichael lied about his own personal character and conduct during the general election campaign. 

They contend that he did so to maintain his reputation as a man of honour in Orkney and Shetland, better to secure his re-election. They argue that this behaviour is caught by section 106 of the 1983 Act. If they are right, Mr Carmichael will not only lose his seat: he will be barred from seeking elective office for three years, and exposed to the (realistically remote) possibility of criminal prosecution. This is a serious business.

The legal debate earlier this month didn't concern the facts of the case. Carmichael's legal team argued that the election petition could and should be kicked out on the law, without a breath of evidence being heard. They argued that the case was without legal foundation and the Orkney four had simply misread electoral law. Roddy Dunlop QC sought to persuade Lady Paton and Lord Matthews that the Representation of the People Act should be interpreted narrowly. Look at the consequences, he said: this is a penal statute. You have an obligation to construe this law carefully. Against this backdrop, the QC advanced four key arguments. And for the petition to survive, the petitioners needed to prevail on all four points. 

Firstly, Dunlop argued, the penalties of section 106 shouldn't extend to what he styled a candidate's "self-talking". That's a funny phrase for something we might put more simply: a candidate lying about themselves rather than about someone else. If you dig through the parliamentary record, he suggested, you find this legislation was intended to punish those who slander their opponents: not those who polish their CVs or deliberately tell national news organisations that they didn't do something which they did, in fact, do.

On this basis, Dunlop suggested, Carmichael couldn't be held responsible under section 106. Secondly, the QC argued section 106 should only apply to false statements which paint a candidate in a negative rather than a positive light. This distinction has no basis in the text of the legislation, which speaks only of falsehoods rather than whether the lie casts the candidate in a positive or a negative light. It finds no echo in earlier caselaw. 

Unconvincing? Lady Paton and Lord Matthews thought so. Their opinion reduces this aspect of Carmichael's case to molten slag. The plain text of section 106 extends to everybody who tells lies about a candidate during an election. As Jonathan Mitchell QC quipped during the oral hearing, "Alistair Carmichael is a person". The Act extends to him just as completely as it would his campaigners or his constituents. And the broad language in which the Act is drafted also catches happy lies and nasty lies. Digressions about parliamentary debates in the 1880s are an unhelpful sideshow. The text is clear.

On the remaining two points, the election court's decision is more equivocal. Remember, Carmichael argued that his lies were political, rather than personal. The leak was a political act. Surely lying about whether or not you committed a political act should also be construed as political in character? But why does this matter?

Section 106 punishes only false statements of fact in relation to a candidate's personal character or conduct. The courts have long recognised a protected area of speech - political speech and political debate - which lie beyond the pains and penalties of section 106. If Carmichael can persuade the court his lies were political and not personal in character -- he keeps his seat and gets off scot free. At least in law. Carmichael sought to persuade the judges that this was an open and shut question. He failed. At para [32], Lady Paton offered the court's rationale for rejecting this construction:
"We do not therefore accept the submission by senior counsel for the first respondent that the context of the statement under challenge (namely the fact that he was being asked questions in his capacity as Secretary of State for Scotland, it being understood that the leak had come from the Scotland Office) automatically has the result that the statement should be categorised as one given “in relation to the public or official character of the candidate” (Fairbairn, Lord Ross at page 396). 
On the contrary, we consider that a false statement of fact may be “in relation to the candidate’s personal character or conduct” even although it is made in a political context by someone who is the holder of an office in a particular party and relates to events involving politicians, political campaigning, political parties’ offices, staff, publications and so on. Each case must be considered on its own facts, and the question may often be one of fact and degree."
Carmichael also raised the question of motive. The petitioners must show that Carmichael's lies were motivated by his election in the northern isles. They must show, in short, that he lied to save his own skin, rather than to dent the SNP nationally, or to diminish the credibility of Nicola Sturgeon as a political figure.

Lady Paton's opinion is extremely clear here - the court can't reach a conclusion about (a) whether the lie was political or personal or (b) what motivated the cover-up - without hearing evidence. It isn't a decision which the election court can make on the law alone.
"Circumstances can be envisaged where a false statement of fact is of such a nature that the effect in relation to a candidate’s personal character or conduct transcends the political context. In other words, being involved in a political matter will not necessarily provide protection from the effect of section 106. We consider therefore that it is necessary for this court to examine the facts surrounding the statement and its context with some care. 
The question of the type of relationship between the statement and the personal character and conduct of the first respondent is one which requires evidence, including evidence as to the motive or reason for giving the false statement. We do not accept, therefore, that it is sufficient simply to provide the court with a written narration of events and to invite the court to reach a view on the basis of the statute and the authorities. On the contrary, we consider that, in a case such as this, there may be subtle but significant inferences and nuances to be drawn from evidence when heard."
Law and fact interact. The election court's decision is necessarily context-dependent. Better to understand that context, evidence must be heard. That doesn't mean the four petitioners will ultimately prevail -- though they must be feeling considerably more chipper, having survived adjudication at the threshold. There remains every likelihood that Carmichael will keep his seat on the court's final analysis.  But it seems highly probable that the last Liberal Democrat in Scotland will find himself obliged to give evidence. And that wasn't part of the plan.

Lady Paton's legal opinion is an upset. An upset for those who thought this case was a crackpot and oppressive challenge without any sound basis in the Representation of the People Act. The election court's judgment today is a rebuke to the lazy cynics and a vindication for the Orkney four. This is no screwball use of the legislation. Their case is novel, absolutely. Unusual, for sure. But electoral law is complex, little understood and often arcane. It remains a mystery to me, how many folk who (a) know sod all about election law and (b) didn't bother to find out still felt able to pronounce the petition hopeless, baseless and motivated by ill will. Well, ye ken noo.

Lady Paton's decision also represents a bitter upset for Mr Carmichael, whose last best hope was to have the case kicked on the law. Now there is a distinct possibility that the northern isles MP will find himself in the witness box, answering impertinent questions including "Would you describe yourself as an honest man, Mr Carmichael? Do you think your constituents in Orkney and Shetland regard you as an honest man? Why did you lie? When you told Channel 4 that you were not involved in the leaking of this document, that was a lie, wasn’t it? Do you really think that is a credible explanation for your behaviour, Mr Carmichael?”

Grisly. "We wish to hear evidence." Five of the cruellest words in the English language.

28 September 2015

"Straight talking, honest politics..."

A crib sheet can be a dangerous thing. Like the actor's prompt, they allow the harried speaker to cut corners and to maintain a superficial veneer of plausibility on an unfamiliar topic.

If you trust the person who has pulled them together for you, in their judgement and in their diligence, they can be gold -- just so long as nobody asks you too many searching or well-informed questions. But as everyone who has ever been obliged to mug up for an unfamiliar tutorial at short notice well understands, danger as well as security lurks behind these primers' superficially reassuring and well-honed lines and cues. 

Is this right? Up to date? Am I missing something important here? Like a rat in a pantry, such doubts can gnaw away at you, preying on your confidence, distracting you. And they ought to. You may well be peddling bullshit. Bullshit of the ripeness and heft we heard the sainted Jeremy Corbyn peddling on the Andrew Marr show this weekend. Against the charming backdrop of Brighton's cyan sea, Corbyn launched the first of what is likely to be a salvo of rhetorical exocets against the Scottish National Party. And Corbyn's comments were classic crib sheet work. Calmac, privatised. Scottish railways, privatised. Colleges, gutted. Local government funding, put to the sword. Much of this was straightforward fiction -- presumably pressed into the new leader's BBC briefing pack by Labour's Scottish operation. 

As any fule kno, the Calmac ferry routes are currently out to tender. No decision has been taken. To suggest otherwise is either an out-and-out lie, or a blunder born of cluelessness, indifference and slap-dash preparation. In Mr Corbyn's case, I'm still inclined to suspect a muddle rather than a fiddle. It is becoming increasingly clear that the Islington North MP has never contemplated UK constitutional politics in his puff. He couldn't give a ha’penny jizz about politics north of the Tweed. They've never troubled him before.

And now, Jezza is reduced to parroting attack lines written for him by someone else. It is pretty tawdry. He seems signally indifferent to Scotland. The concept of a united Ireland may stir his passions, but Corbyn seems listless and intellectually semi-detached on the question of our own united or disunited Kingdom. I don't hold this indifference against him. From his London borough, local politics and world affairs will have, understandably, seemed more pressing. But more is expected of the head that wears the crown. 

Today, his new shadow chancellor, John McDonnell, took to the conference stage in Brighton full of the same patter. In that gruesome, zombie phrase, McDonnell argued that Scots should "come home to Labour", which he suggested "is now the only anti-austerity party". All of which, to coin another phrase, seems pretty chuffing rich. Get back to us, John, when you can coax a few more of your colleagues into the Westminster lobbies actually to oppose the Welfare Reform Bill. You talk of a grassroots anti-austerity movement. Wouldn't it be spiffy if your green benches actually showed any enthusiasm for that cause? Are you seriously contending that only the views of your isolated, embattled and increasingly compromised Labour party leadership matters here? Forget the glum Commons faces, and the missing dissents? Spare me. But back to the boats. 

The Scottish Government is obliged to tender ferry routes under European Union law. To fail to do so would be to expose the Government to enforcement action from the European Commission. If Derek Mackay took to his pins in the Scottish Parliament, and gave a categorical pledge that the tendering process was a sham, and Calmac were guaranteed to win the contract providing link shipping to many of Scotland's islands, Calmac's competitors would drag Mackay off to an expensive and impossible to defend judicial review, almost certainly dooming Calmac's commercial bid for the contract. That may sit uncomfortably alongside the "save Calmac" agitpop, the hashtagging and the twibboning, but it is the law. Such is the price of the single market and European competition. 

Corbyn's case for the prosecution on railways is even more tenuous. He told Andrew Marr that the perfidious Nationalists "were behind privatisation of Scot Rail." Which is also straightforwardly untrue. As trainspotters everywhere know, the Railways Act of 1993 was the key instrument which enabled the UK government to distribute rail assets back into the private sector. At worst, Corbyn might indict the SNP government for failing to foster a public sector bid for the rail franchise, ultimately won by the Dutch company, Abellio. This is a long-standing charge which has been launched by Scottish Labour at Nicola Sturgeon's government for some months now. But there is crucial missing context here which dynamites the glib, schoolboy indictment the new leader guilelessly read out on Marr on Sunday.

A cursory inspection of the Scotland Act reveals - shock horror - that the "provision and regulation of railway services" is a reserved matter under Schedule 5 of the Scotland Act 1998. If you burrow down into the new Scotland Bill, you'll find a new clause 49, which makes it clear that the general reservation "does not prevent a public sector operator from being a franchisee in relation to a Scottish franchise agreement." Significantly, the topic was altogether missing from Scottish Labour's Smith Commission submission back in 2014, despite their noises-off grousing. But these changes aren't yet on the statute book. Legally, Holyrood cannot pass legislation which "relates to reserved matters". The courts could and would reduce any such legislation to ashes. 

The Scottish Parliament's powers are trussed up and limited by the devolution legislation. We may wish it were otherwise. We may wish that the Scottish Government had more autonomy over transport policy, and much else. But to indict the Nats for failing to do something which the law - passed by Westminster - says they cannot do? That's the politics of the playground. It is not, in today's Labour Conference's all too worthy slogan, "straight talking" or "honest politics". 

I have considerable sympathy with some of Mr Corbyn's views, and very little with some others. Nevertheless, I feel a twinge of instinctive - if paradoxical - protectiveness towards the party, watching the likes of John McTernan on BBC Daily Politics today, being granted a bully pulpit, almost entirely unchallenged, to crucify, flay and savage the leadership of his own party. It is grim.

By all means, challenge the Scottish Government. Question its performance. Advance different priorities. Name hypocrisy and backsliding and caution when you see it. Show me the soul who believes that any government leaves behind it a perfect record, and I'll show you a fool. But for crivven's sake, Jeremy, my rumpled companion, my bearded, tieless fellow traveller - take a little time to cast a critical eye over the gormless cribs elbowed your way by your comrades in arms. The snark is rising. 

27 September 2015

"Quod me nutrit, me destruit..."

A Latin motto is written in the top left-hand corner of a portrait which hangs in Corpus Christi College Cambridge, thought to represent the playwright Christopher Marlowe: Quod me nutrit, me destruit. "That which nourishes me, also destroys me." This Elizabethan sentiment was often symbolised by an upturned torch, its flame burning brightly, but consuming its own substance: Quod me alit me extinguit

The motto has served generations of chemically-dependant artists - the mad, the bad and the dangerous to know - perfectly well. And now? Now, the Scottish Conservative Party seem to be taking it as their political mantra. All other unionists are to be put to the torch, even if only to secure a temporary Tory illumination.

Strategy is to be sacrificed on the altar of tactics. Unionism is to be harnessed, to destroy the other parties of the union. If I were a Liberal Democrat, or a Labour supporter, I'd be raging. And as a Nationalist? As a Nationalist, only an evil chortle. To adapt Jacques Danton's phrase, like Saturn, the lack of a revolution on the 18th of September 2014 is now eating its own children. The internecine conflicts which gripped Better Together only presaged the general cannibalism which has followed. And we now have every indication that the Scottish Tories are sharpening their teeth for 2016.

Under Margaret Thatcher, the Tories campaigned under the symbol of a blazing torch, symbolising enlightenment and freedom. In 2006, David Cameron replaced this robust imagery with an unsmoking, altogether woolier oak tree. In the years that have since past, the logo's green sap has slowly turned a truer shade of blue. It was Peter Mandelson and Neil Kinnock who folded up the old red flag in 1986, exchanging the deepest lifeblood of the martyred fallen with "the people's rose in shades of pinks," in Tony Benn's disgruntled phrase.  But Ruth Davidson and her colleagues seem to be in the mood to reclaim the torch. And to lay the fiery brand at the root of their erstwhile allies in the Better Together campaign.

On Twitter on the 19th of September, I wondered: "are the Scottish Tories lining up to run a "second vote for the Union" strategy in 2016?" In the last week, it is quite remarkable how quickly the green shoots of that strategy have broken into unholy growth. And with a tactical hat on, you can see the appeal. Taunted and tempted into the concession by Gordon Brewer, the Tories intend to make Kezia Dugdale pay for the idea that pro-independence sorts are welcome in the Labour Party. "The only party you can really trust with the union," they argue, is the Scottish Conservative and Unionist Party. And more and more of their politicians are laying on the burning brand with gusto. They intend to leave that pinko rose good and charred:

Given the Conservative Party's divisive general election campaign, constructing the Nats as alien interlopers keen only to smash your Royal Doulton and to micturate on your Victoria sponge, you can understand the dismayed response of Labour politicians to all of this. It is all a bit rich, from a cynical Tory campaign which has shown every sign, since the referendum, across the UK, of subordinating its unionist inclinations to every over political twinge and priority going. "EVEL now." "We stand up for England." "Brexit now." And so on, and so on. But Ruth is determined to set a watchman, and if necessary, to consume the substance of her former allies to secure a little extra light for the fading campaign that is Scottish Conservative and Unionist politics. Quod me nutrit, me destruit. Tactically, this all seems perfectly sound. Strategically, it is mental.

If the Tories represent the only viable unionist future - the union is doomed. But if exploiting the unionist/pro-indy dynamic represents a viable electoral strategy? We should expect Ruth Davidson and her colleagues to mine the seam for all it is worth.  In the referendum aftermath, the #indyref mood swept the SNP to 56 of 59 Westminster seats. Which shouldn't unionists, or at least some unionists, benefit politically from the majority who scorned independence on September the 18th?

Now, all of this sits uneasily - let's be charitable - with the idea that it is the SNP who are obsessed with the constitution, while Ruth Davidson spends her days in the pantry, vexed by the bread and the butter of education, justice, health. But as the 2016 election approaches, we can expect such niceties to be dispensed with. Which campaign will win the Tories the most votes? What rhetorical frame are they trapped in? Can the Tories change the political conversation?

Possibly, with Kezia's help, but with some difficulty. But can the Tories exploit the preoccupations of the political status quo to advance on their pretty dismal recent performances? Mibbes aye. It is becoming increasingly clear that the Tories intend to fight the 2016 election on constitutional terrain -- to the extent that the party leader now seems to be composing personal messages to welcome new ultra unionist to her ranks.

The #SNPout pinwheel of density was doomed in 2015 because there just weren't enough unionist ultras who you could be tempted into tactical-voting to deprive the fifty six SNP MPs of their majorities under first past the post. But Holyrood in 2016 is a different beast entirely. It is worth reminding ourselves just how poorly the Scottish Tories have performed in recent elections. In the 2011 Holyrood campaign, the Tories secured 13.9% of constituency ballots and 12.4% of regional votes, losing three constituencies and falling from seventeen MSPs to fifteen. Their vote, unsurprisingly, was unevenly distributed across the country, from the heights of the Borders to the arid territories of Ruth Davidson's "sewn up" Glaswegian operation.

Central Scotland: 6.4%
Glasgow: 6.1%
Highlands and Islands 11.6%
Lothian 11.7%
Mid Scotland and Fife 14.1%
North East 14.1%
South Scotland 19.5%
West Scotland 12.7%

Hearing any kind of obvious regional vote strategy from the Scottish Tories would be a novelty. "Second vote Green" is now a well-established mantra, recognising the party's weakness in constituency battles, but appealling to voters to take them seriously for a regional list preference. And remember "Alex Salmond for First Minister" in 2011? In the Holyrood election of that year, the SNP ferociously framed the regional paper as a choice between the - but this time, stricken - Iain Gray shadow cabinet and the incumbent government. 

It is sometimes forgotten that a key demographic appealled to by this message were those who regarded Scottish Labour as their principal political opponent. The subtext of "Alex Salmond for First Minister" was "vote SNP to keep Labour out." And this framing of the election proved remarkably effective. "But all means, support your local Conservative candidate in the constituency race, but remember, if you want to keep Labour on the opposition benches - only an SNP government will get the job done." Such was the allure of this prospect that even the Spectator's Alex Massie was ensnared. Though Alex doesn't often care, amid his recent thunderings against the Scottish Government, to recall this fact.

Some of the psephology from the campaign is fascinating. Take Ayr. In 2011, the constituency was a straight up fight between the Tories and the SNP.  On the night, the Conservatives snaffled the seat with 12,997 votes, to the SNP's 11,884 - 1,113 votes ahead. But when the Ayr regional ballots were opened? A different story. The Scottish Conservatives secured only 8,539 second votes to 14,377 for the Nationalists. How to explain the discrepancy? Perhaps John Scott, the Tory incumbent was a solid and workmanlike local performer. Perhaps his competitor, Chic Brodie, did not come off tremendously well. But as regional vote strategy goes, since 1998, the Tories have been nowhere. But inverting that torch - plunging the Tory flare into the already bruised flesh of the Labour Party? That's a temptation which will be difficult - perhaps impossible - to resist.

In 2016, the Scottish Conservatives may burn a little more brightly but -- but it is difficult to see how an ever closer alignment between unionism and the Conservative Party does anything to extend the union's longevity.  It is bleakly ironic. With the flitting of its pro-independence membership, the Scottish Labour Party must be more unionistic now than it has been in decades. But to scratch a few percentage points' advantage from the polls - to ride the pro-union surge - Ruth Davidson seems prepared to thrust the Tory torch into the dry kindling of the Labour Party, and to cackle as it burns. Quod me nutrit, me destruit.