2 March 2015

Keeping the doing of British government in hand

I recently met a die-hard English unionist who was worried about the dearth of Scottish students attending the great British public schools and to be found in the ornate halls and cloisters of Oxford and Cambridge. At first blush, these anxieties seemed highfalutin and even comical, but what my interlocutor was really worried about was what he saw as the emerging lack of Scottish corporate solidarity with British elite experiences and values. It was essential, he thought, for an admittedly tiny, but he judged, potent minority of young Scots to be enrolled in the stoutly British public sphere not just educationally, but in ineffable common experience, sentiment, and friendship.  

"Give me the child and I'll give you the man" is an old Jesuit boast, and hardly an original insight, but something about his idiosyncratic disquiet and his equally idiosyncratic solution struck me forcibly. Here was a fellow with a sense of the deep crisis of British unionism revealed by the referendum campaign, trying to think longer term, trying to think strategically about how political ideas can be produced, how they are popularised and how they (perhaps even inadvertently) are enfeebled and dissipate. The idea that the Union can be preserved in the longer run by Vows, Commissions and Scotland Acts alone is fanciful. His choice of solution and objects may be peculiar, but he understood this clearly.

After the heart-stopping anxieties of early September, only a remarkably complacent unionist would now think their work complete, and their initiatives, concluded. To see the ongoing political struggle for a popular, winning, organic unionism only in terms of tactical voting against the perfidious separatists in May is colossally to miss the point. The Better Together parties looked deep into the eyes of the Scottish people, and found dealer's eyes peering back at them, unsentimental, commercial, counting the pennies, weighing the odds. 

For pro-union writers such as Alex Massie and Hugo Rifkind, to conduct constitutional debates as double entry accounting was to neglect the urgent, emotional register of continuing union, but the official No campaign essentially conceded the mercurial loyalties of the electorate, accepting the disturbing provisionality of Scots' attitudes to the Union, and piling in with numbers and arguments likely to pique the interest of a canny, and cautious investor. 

That was an effective strategy for the 18th of September 2014, but securing loyalty through anxiety is not a sustainable device for securing continued Union in the longer term. Machiavelli may have judged that it was better to be feared than loved, but folk often forget, he recommended that the prince should aspire to be loved also, and thought "merciful, faithful, humane." The Union may have been temporarily saved by resort to fearful measures, but unless Scots can once again be persuaded to identify emotionally with the British state, none of the policy autonomies granted to Holyrood will be worth a clipped farthing. 

Only a vanishingly small segment of pro-union opinion seems alive to this wider context, and the fundamental challenges it discloses. The Prime Minister has declared the Scottish question, answered. Jim Murphy has shed his unionist skin altogether.  But behind today's news that big infrastructure projects are to bear plaques with Union flags and "Funded by the UK government" labels, we can perhaps detect the beginning of an attempt, as Alistair Carmichael put it, for a "greater presence" of the Westminster government in Scotland after the No vote.  The move has obvious echoes with the now muted, and taken for granted, but significant and symbolically powerful rebranding affected by Alex Salmond's first administration in 2007.  

But it is still about the cold hard cash. And it still does not answer the deeper, more ineffable concerns of my old unionist about how to build the British solidarity found wanting in the run up to last September - and how to retrench Scotland's position in the union using softer, more sentimental means that the hard nuts and bolts of primary legislation and institutional reform. It also reminds me of something I wrote when the Smith Commission's proposals were revealed. Plastering the Union flag across these big projects is a material expression of the idea that the Union must keep large parts of the doing of British government in hand:  

"For all of the panicked focus in the rest of the United Kingdom of the end of the Union as we know it, the Smith proposals are, essentially, a conservative restatement of the idea that the Union must do things and be seen to do things. Big things. It cannot be an empty vessel within which an autonomous Scotland is contained, and set at liberty to pursue its own priorities. A disinterested lender of last resort, or an organiser of armies and navies with no real interest or say in the domestic affairs of Scots. It must be a state with a purpose, with a mission. To characterise this as an unprincipled "fudge" is fundamentally to misunderstand the political thinking undergirding it.  
For Smith, the Union cannot be conceived a loose confederation of mutually uninterested parties, pursuing their own distinct political priorities. There must be Union dividends. It must pay you back in cold, hard cash. It is a single market in which the worker must be at liberty to float freely, and in which the worker can expect the same minimum wage whether she labours in Cumbria or in Aberdeen. Where her pension is paid from the same pot as her cousin in Kent. A union which builds homes, sustains communities, builds ships, heats pensioners. A Union which secures your fealty, not out of fellow feeling, or a dim sense of identity, but by keeping hold of the purse strings. By keeping significant parts of the doing of British government in hand.  
You may no longer work for state-owned corporations. Ravenscraig may have closed. But the Union justifies its existence by being a force in the life of every person in this country, more and less happily, more and less forcibly. Bugger the abstract calculations: Unionism must remain a matter of self-interest. The UK parliament and government must be felt to be a force in the land."

All of that, in a wee flag.

1 March 2015

"The Battle of Britain is over; the Battle of Britain is about to begin..."

The hurly burly of term and teaching has suppressed my blogging mojo this last week, but Kenny Farquharson asked me to step in to fill in the gap left by a weary Andrew Wilson in the Scotland on Sunday this morning. Unoriginally, for my topic, I took the general election, and the charms and perils of the SNP advancing in Westminster, potentially entering the mainstream of British politics.  I begin by rehearsing a tale which may be familiar to my longterm readers, but it seemed an apposite way of introducing the challenges which face the party, in having its voice heard across the United Kingdom. An excerpt:

"‘GOOD grief, you aren’t a Scottish Nationalist, are you?” The massive, tweedy don inspected me, eyes twinkling with surprise and a kind of benevolent contempt. Determined to skewer this odd specimen of humanity, after a fortifying slurp of claret, he patiently explained to me that I was wrongheaded and mistaken. Like a dim undergraduate in a tricky tutorial, he said, if I thought matters through, I would soon realise the absurdity of the Nationalists and my position."

You can read the whole thing here.

10 February 2015

Professor Chalmers: The law "cannot be stated with any degree of certainty whatsoever..."

As my regular readers will know, I’ve a raging hymenopterous beastie in my bunnet about the criminalisation of assisted suicide in Scotland. Two recent blog posts have examined Holyrood’s scrutiny of the late Margo MacDonald’s proposals to definitively legalise assisting suicide, and found it wanting.

Whatever you think of the issues, I argue, the law as it stands is intolerably value and unclear. Is it homicide to collect a vast stash of drugs and to give them to a loved one to take, to end their suffering? Is it murder, or culpable homicide, to assist your relative to mount a plane to the Dignitas clinic in Switzerland? What does the Lord Advocate think about these things? On all three, I argue, the legal answers are clear as mud, evasive, fudged. And that can’t be right.

Perhaps prompted by my girning blog posts, Patrick Harvie posed a number of these awkward questions to witnesses during a recent Holyrood evidence session on the Bill. Astonishingly, the Crown Office seems unable or unwilling to offer any guidance whatever on its understanding of the law here, complaining that they are subject to a live judicial review. Even taking this pending civil case into account, I find this reluctance to offer any meaningful steer to our parliamentarians on their understanding of the criminal law confusing, to say the least. But a seed of unease about the current law on assisting suicide seems to have been planted.

Interesting tidings, then, this afternoon from Professor James Chalmers of the University of Glasgow, who reports that he has been approached by Holyrood’s Health and Sports Committee "to answer a series of questions on the scope of Scots criminal law as it stands." Professor Chalmers’ full response to the Committee can be read here. But James provides this pithy, pretty damning summary of the law as it stands which should powderkeg the complacency which has characterised parliament’s analysis of the Scots criminal law on assisting suicide:

"... the core conclusion is a simple one: the scope of the criminal law in this area can not be stated with any degree of certainty whatsoever."

In its thoroughness, James’ analysis hammers home the uncertainty of the current law extremely effectively. Whether or not Parliament endorses this Bill, the criminal law cannot be permitted to remain as it is, uncertain, unprincipled, and relying on the untransparent exercise of prosecutorial discretion to avoid injustice.  

Under the European Convention on Human Rights, we are entitled to know what is and is not criminal, and the sanctions we expose ourselves to if we decide to transgress. These rights are fundamental, essential, minimal. In principle, the current legal regime on assisting suicide in Scotland fails to live up to these ideals, providing authoritative guidance for the citizen on what is and is not criminal, and what conduct may or may not attract a life sentence in prison. That is intolerable.

That the Health and Sport Committee is seeking learned advice on this neglected issue is a very welcome development. They are to be commended for rejecting the Justice Committee's complacent incuriosity, and posing the tough questions. Let's see what they make of Professor Chalmers’ equally challenging answers.

9 February 2015

Smug Scottish Police Federation spit out the dummy on stop and search

The Scottish Police Federation have made only one prior, unedifying appearance on this blog. In a crowded field, the contribution of the bobby's informal union to the corroboration debate in Holyrood was singularly gormless. The organisation's Vice President showed little understanding of the current law on in his evidence to MSPs back in December.

Today, SPF General Secretary Calum Steele shows outright contempt for our parliamentary representatives, in an impertinent letter on the recent stooshie on Police Scotland's approach to stopping and searching innocent punters. 

I quote the eye popping correspondence in full below, littered with uncontrollable, explosive outburst of liberal fury. The General Secretary begins his pert billet doux on a modest, reconciliatory note. Anxious to allay the reasonable fears about civil liberties which have been expressed in recent days, keen to show a police service, alive to the concerns about searches which have no legal basis, and which present serious risks of exploiting the ignorance of the public to allow constables to harry and waylay folk who are innocent of any criminal offence, and any reasonable suspicion of committing one, he begins thus:

"The events of the past week have resulted in a frightening narrative that politicians believe that they are in a position and indeed have a role to play in determining how and when police officers exercise their right to stop and search someone. It is also alarming to read and hear reports that politicians consider that they are in a position to reach an agreement with or direct the Chief Constable of the day as to how and when such powers will be used."

Gadzooks! Heaven forfend that our politicians should have a care for our basic liberties and freedom from being tormented by interfering polis with no legal basis, and no suspicions, to justify stopping us and rummaging through our stuff. These duffers, these merely elected persons, suppose they have some "role to play" in upholding the basic rights of the citizens of this country to go about their business without being pestered, groundlessly, by officers of the law. A scandal.

Why shouldn't the contemporary Dicksons of Dock Green go about their beat, arbitrarily hassling the public? Why doesn't the First Minister poke her big neb out? Like Father Jack, for Mr Steele, Scottish politicians should burble, "that's an operational manner", and keep their "frightening narratives" about basic rights and police oversight to themselves. The constable e'er kens best. My knobbly, suppurating foot.

"The authority of police officers to stop and search any citizen does not arise from the dictate of politicians nor from some non-existent power of the Chief Constable but comes from the law of the land both at common law and statute. If that power is exercised inappropriately or in circumstances which breach the law, and the substantial safeguards that exist, the courts will strike down any evidence recovered unlawfully. Scotland has a well developed body of law governing the rights of the police to search and the rights of individuals who may be the subject of search." 
As the law stands at present a Police Constable can stop and search any individual without having a search warrant if they suspect they are in possession of drugs, an offensive weapon, stolen property, alcohol if attending a major football or rugby match, on public transport travelling to such an event where alcohol is not permitted, evidence in relation to an offence under the protection of Wild Mammals (Scotland) Act 2002, cash or cash equivalent of £1000 or more where this is the result of criminal activity and fireworks that are intended to be used anti socially. Before exercising the right to stop and search the Constable has to have reasonable grounds for suspecting that they will find one or more of these items. 
There are some exceptions which allow police officers, for example attending an incident which has involved serious violence, to stop and search without having reasonable grounds for suspecting that they might find these items. 
In matters involving terrorism the police can stop and search a vehicle if they reasonably suspect terrorist activities are involved. If such a reasonable suspicion exists for any of these matters and the common law or Parliament has given power to search, on what basis is it now to be suggested that a conversation will take place with the Chief Constable to prevent a police officer exercising these powers lawfully and in the public interest?"
The framework of law which governs search and stop and search is well understood and has developed through many decisions of the courts supplemented by extra powers granted to police officers by Parliament both at Westminster and Holyrood. None of these powers are granted to the Chief Constable (other than as an individual holding the office of Constable) and there is no place in the common law or statute for politicians deciding on the whim of the moment how, when or why police officers should exercise the powers which the law extends to them. 
All of these powers can be challenged in court as and when appropriate. The Chief Constable’s responsibility is to provide training for officers so that they understand what their powers are under the law. The role of politicians is to enact law. When the power is granted then police officers have the obligation to exercise those powers reasonably within the limits set by law, in ways consistent with the training they receive and be ready to answer for any decisions they make before a court of law rather than a court of political opinion or according to some private discussions between politicians and the Chief Constable of the day. 
The debate on ‘non-statutory’ or ‘consensual’ searches has unearthed frightening levels of political ignorance. It is well understood that for the most part we police our nation by consent not by force and for this reason our courts have consistently found that when citizens voluntarily consent to be searched that not only is such practice within the law but that occasions where a person gives consent, the interaction does not amount to a search in the more formal sense of the word. It seems to me that this is a determination based entirely on common sense. Are we really suggesting citizens should no longer be able to co-operate with police officers on a voluntary basis? 
If law developed by the courts and as laid down by Parliament is to be altered, the legislators would require to explain how a power vested in an individual Constable could be restricted through what appears to be entirely ambiguous means. It would be an absurdity for a Constable to be vested with powers only for those powers to be curtailed as a result of some private conversation between a politician and the Chief Constable. 
Regrettably the Police Service of Scotland has to carry much of the responsibility for the hostility toward the subject of stop and search. The numbers driven target approach to this area of policing was ill conceived and resulted in attention being directed towards meaningless numbers rather than the sensible objective of crime prevention and detection."

Ah yes. Those "meaningless numbers" of actual kids being collared and rumpaged through by police officers. With no suspicions that any offence has been committed. This whole passage is a smokescreen. The scandal, General Secretary, is not Police Scotland's use of its legal powers, but constables stopping folk in circumstances where no law, neither statute nor the common law, would allow officers to insist on pawing through a bag or a coat.  

Oh look, a squirrel. After knocking heads, however, Steele comes over all magnanimous. These upstart parliamentarians, he generously grants, are entitled to take a passing interest, despite the sweeping and possessive claims of his opening paragraph.

It is of course understandable and entirely correct that politicians question the use of any non-statutory search of children and all police officers should be able to account for such occurrences. The events of the past week however tend to suggest that there is no interest in hearing such accounts, as a determination has already been made that any rationale provided will be insufficient. 
It is however an absolute reality that many children in our society are out and about in our communities without the slightest knowledge of their parents or guardians. Many smoke from their pre-teen years, many more drink and yes occasionally some also carry weapons and drugs. No amount of wishing it wasn’t so changes the fact that it is so and no amount of hand wringing changes the fact that police officers have to deal with thousands of calls every year involving pre teenage youngsters. There may be no general statutory power to search at such calls but there is also no general statutory power to require a name, address or age. Perhaps the police should just do nothing and advise callers that “we have no statutory powers” and simply hope these youngsters come to, or cause no harm. 
When police officers exercise their powers to search they do so often under statute and in such circumstances they do not require consent, they can also search people they have lawfully arrested with or without a warrant. They can also ask individuals to consent to search and it’s up to the individual whether they consent or not.  What the public require to know is that police officers are only engaging in this activity in the public interest in an effort to combat crime and to keep the public safe. This is best done by training police officers how to exercise their powers and engage with the public in the interests of everyone rather than by political dictate or suggestion to Chief Constables that they have the power to overrule a well-developed system of law. 
There are undoubtedly lessons to be learnt from the recent history of stop and search within the Police Service of Scotland. These lessons however need to extend beyond the service itself and many parents and guardians need to take a greater responsibility for the actions of their children. The greatest lesson of all however must stem from the historic warnings that a single police service in Scotland could become subject to political interference. How quickly these concerns appear to have faded from the memories of those who now seek to exert what they so prophetically warned against.  

Yours sincerely       

Calum Steele, General Secretary

The behaviour and practices of the police on our streets are political. The arrogance, unembarrassed illiberalism, and pomposity of General Secretary Steele's letter to MSPs is spectacularly ill-judged, ill-toned, and misplaced. Your members are our servants, Mister Steele.

You, and the chief constable, and all of your members, are democratically accountable. Parliament, General Secretary, has a "role" and an urgent interest in keeping you honest and within the law, anxious about the rights of the public, as well as supportive and respectful of your efforts to keep the peace, and our fellow citizens from harm. That you seem to regard it as appropriate to address our elected representatives in this peremptory and high handed way is by turns disturbing and telling.

Just who the hell, General Secretary, do you think you are?

4 February 2015

"I see no ships"

You can imagine the conversation in the Members' Tearoom in the Palace of Westminster. Deep in Labour territory, in parliament's musty, flyblown, careworn tea den, two Scottish members sit, in cahoots. 

Their grogblossomed faces glow with that self regarding malevolence which comes only from putting the boot into your friends and allies. The first shakes his head, apparently more in sorrow than in anger, as he smacks his lips and pushes a spent newspaper across the green baize table. "2011: SNP re-elected with majority, Labour crushed." His colleague's brows furrow in a pantomime performance of irritation, flipping over the offending front page in exaggerated disgust, but the corners of his mouth twitch with barely concealed glee.

"What's wrong with these people? Just a few months ago, they had a fucking massive lead in the polls, a fucking massive lead. And they still blew it."

"The B team."

"The C team. They managed to lose in Glasgow, for fuck's sake. In fucking Glasgow. They're just useless, they really are." 

He pauses his diagnosis to pick a stray, burnt currant from his scone, giving it a second slurp of the butter knife. 

"I did tell them. We all told them. I mean, less than a year ago, I took -- we took -- nearly half of the votes in our seats. Nearly half. But this bunch of chancers are about as much use as a fart in a colander."

""Un-fucking-believeable. I've always said, devolution was a mistake. Half of our lot shouldn't even be fucking councillors. Councillors. MS-fucking-Ps? Fuck me."

"Amen, comrade. Another scone, Brian?"

Since 2007, the Labour Party has resembled the repeat victim of pyramid selling, whose eyes still quiver with the mad conviction that this get rich quick scheme is legit and sure to come off. Like Shelley Levine, Glengarry Glen Ross's faded, desperate hustler, the party has been lead by the nose to regard every setback as a blip, and every encouraging sign as sure proof that normal service will resume tomorrow. All we need do is watch the clock and wait for the electorate to rediscover their senses. 

Sure, its spokesmen and women will utter a few appropriate remarks about listening, change, and reconnecting with alienated communities -- but words are wind, and these windy words never seem to come to much.  Behind the mask of contrition, and promises of introspection and renewal, in the eyes, you see that same old Bourbon gleam. Learned nothing, forgiven nothing: entitlement, hubris, lack of self reflection. 

As one wag recently observed,  the party has become like the touchy and confused party guest, marching blimpishly around the room, barking at indifferent strangers, "don't you know who I am?" In 2011, they urged the electorate to "come home to Labour". For many voters, it's the idea that the party now represents any kind of spiritual home which befuddles. 

Instead of seeing any connection between the defeats of their colleagues in 2007 and 2011 and their own political fortunes, the party's Westminster contingent has shown every sign of lazy contempt for their comrades labouring north of the wall. And you don't hear the half of it in the media. Johann Lamont's parting shot, in resigning, expressed ideas you hear muttered in private, time and again.  

But you can see how the Scottish Labour MPs acquired this misplaced hubris. Marginalised in political decision making, vexed to see colleagues they don't rate doing the talking on telly, it is hardly surprising that a compensating psychological devilment has made work for their idle hands and mouths. After all, they might ask their Holyrood colleagues, what happened in the last general election? Unlike you lot, we got the goods. We delivered the same old crashing majorities. Why can't you? We may be marginalised, powerless, and uninteresting, but at least we're not as crap as you lot. We, at least, can enjoy a guid conceit of ourselves at your expense.  And a disloyal trauchle to the tearoom quietly to savour your disasters.

The problem with this attitude, of course, is that it is bereft of any self criticism or self awareness. Rather than seeing, in these defeats, lessons and implications for MPs' own conduct and political futures, the rise of the Nats was all down to a clownish band of third rate Labour MSPs. Problem solved. Westminster forever. That was, undoubtedly, part of the calamity which engulfed the party in 2007 and 2011, but it was not the whole story. 

And as has so often seemed the case in recent years, this convenient, psychologically compensating story left problematic assumptions unchallenged and awkward questions unexplored. Since politics north of the border ceased to be easy for them, Labour have become addicted to easy explanations for their troubles. It would be quite wrong, I think, to see the party's current polling only as an expression of recent events or individual incompetencies.

It is the culmination of years, of decades, of alienating compromises, weakening ties, and ever more provisional political loyalties. The independence referendum perhaps clarified a number of these themes, and intensified feelings, but the process was set, and understood, in a wider political context and structure which can't be overlooked. Ian Smart is dead right about that. Blaming Ed, or Murphy, or Lamont, or Gray -- represents just another tempting evasion for the People's Party about the scale, yes, but also the depth of their challenge in the 2015 campaign. The language of the "implosion" suggests a sudden, unforeseen catastrophe. But this prostate has been rumbling for years.

Ironically perhaps, a crushing defeat for the party in Westminster may be an essential condition for normalising the relationship between Labour in Holyrood and in Westminster, encouraging the party to put their shoulders to the same wheel, without the atmosphere of snark, recrimination and condescension. Scottish Labour MPs have, for many years, seemed to have adopted Nelson's motto about the implications of the party's long crisis for their own careers and ambitions. "I see no ships." 

With Ashcroft's startling polling this morning, many of the party's slighted Holyrood members may think, quietly, in their own tearooms: Well, ye see noo.

28 January 2015

Lights! Camera! Court!

Should TV companies be entitled to broadcast criminal trials on a regular basis? Ought journalists - or members of the public - to be allowed to sit back in the public gallery, furiously live-tweeting a judge's sentencing statement, or relaying the arguments being advanced by counsel in the latest round of litigation engulfing Rangers Football Club, to the interested public? 

The issue of cameras and tweeting court proceedings contemporaneously has quietly inched up the agenda in Scotland and the UK. Recent years have seen sections of Nat Fraser's trial for the murder of his wife broadcast on Channel 4. STV sought and secured permission to transmit Lord Bracadale's remarks sentencing David Gilroy for the homicide of Suzanne Pilley and more recently, Lord Matthews jailing Angus Sinclair for the Worlds End Murders

But it isn't all about the conventional media. During Tommy Sheridan's perjury trial in 2011, James Doleman curated a blog, providing accurate and contemporaneous commentary on the evidence heard in the High Court that day. 

These issues have been weighing on the mind of Scotland's most senior judge, Lord President Gill, who asked his colleague Lady Dorrian to look into the rules governing social and traditional media reporting from Scottish courtrooms. In Edinburgh this morning, at a conference on digital justice, Lord Gill announced the general findings of this review.  He told the conference:

"... access to justice should not operate solely in favour of those already using the system. Access to justice encompasses a broader aim – to open our court s to public scrutiny and to public understanding and, in that way , to de - mystify our law and its procedures. In recent years there has been considerable pressure from the media for the televising of proceedings in the courts. On one or two occasions my predecessors have allowed there to be cameras in court. When I became Lord President it was clear to me that there was no overall policy in the matter. We simply could not go on making ad hoc decisions on individual applications to film or to televise."

So what did Lady Dorrian and her colleagues recommend? Gill outlined the proposals under six key headings which will considerably liberalise media access to Scottish courtrooms, while continuing the protect the integrity of live criminal proceedings:

  • Filming of civil and criminal appeals and legal debates in civil first instance proceedings, such as judicial review or hearings on the Procedure Roll, should be allowed for live transmission. Subsequent news broadcasting and documentary film-making should be allowed subject to clear and comprehensive guidelines 
  • In certain circumstances and subject to certain safeguards, criminal trials may be filmed for documentary purposes, but not in cases involving children, sexual offences and vulnerable witnesses. However, no live transmission should be allowed for any criminal first instance business, or for first instance civil proceedings involving witnesses. 
  • For subsequent news broadcasts, the delivery of the sentencing remarks of the judge should be permissible, with filming focused only on the judge. 
  • Similarly, in first instance civil business filming for documentary purposes may be allowed, but should exclude certain cases such as those involving family and immigration matters. 
  • Filming should be subject to robust, clear and comprehensive guidelines.
  • Journalists who register with the Scottish Court Service to gain access to the electronic portal-based system, should also be required to undertake compliance with the Contempt of Court Act. Journalists so registered should be permitted to use live text-based communication. Any person who is not on the register should require the permission of the presiding judge.

As Lord Gill notes, giving effect to these general principles will require additional work. "This may involve further consultation with the media on practical points", he says. With my social media hat on, I am interested in the final point -- which will allow hacks to live tweet proceedings, but only if they have been put through the wringer on the dos and don'ts of the tough contempt regime of the 1981 Act.

This is a safety-first approach, and would seem to imply that duly registered reporters should be able to tweet from criminal trials while they are ongoing. It will undoubtedly save some journalists, whose court training is a bit rusty, from themselves. If an unthinking reporter inadvertently tweets legal argument heard outwith the presence of the jury, a jail cell of their own beckons, and if that can be avoided, so much the better.  

I wonder, however, if these strictures aren't excessively paternalistic. Are these restrictions really necessary, for example, in less sensitive cases, where criminal penalties are not at stake? It should not, I think, be assumed that folk are only likely to be interested in relating criminal cases, blow by blow, on social media. In particular, the travails of certain football clubs in our civil and tax courts are of considerable interest to a significant section of the public -- and are likely to be reported by journalists and interested citizens, unused to visiting and relaying court proceedings and therefore unlikely to have registered with the Court Service. 

Justice sometimes demands some limits to be imposed on the openness of the proceedings of our courts, but unless some overriding interest dictates otherwise, the principle of open justice must prevail. Weighed on that scale, the Lord President's commitments this morning are broadly to be welcomed. Lord Gill and Lady Dorrian are also to be commended for their openness to the possibilities - as well as the challenges - of these innovations for our courts.

Today's plans lend new meaning to the old principle of open justice, and stand in quiet rebuke to the vision of the judge as a technical Luddite, who still regards the transition from vellum to paper with ill-disguised suspicion.


Lady Dorrian's full recommendations can be read here.

22 January 2015

Barnett consequentials...

Do you know that old ditty, about the significant consequences which can flow from apparently minor details?

For want of a nail the shoe was lost. For want of a shoe the horse was lost. For want of a horse the rider was lost. For want of a rider the message was lost. For want of a message the battle was lost. For want of a battle the kingdom was lost. And all for the want of a horseshoe nail.

I was put in mind of it last night, as the media reported comments made by Nicola Sturgeon to the BBC's Nick Robinson, indicating that SNP MPs would consider voting on legislation which "has a direct impact" on Scotland's budget. The Times has presented this as ratting on the party's noble self-denying ordinance, to refrain from voting on legislation extending only to England and Wales - another clause added to the charge sheet in the victim-fantasy of an England oppressed. In full-on metropolitan hubristic mode, the Guardian editorial characterise the First Minister's remarks as "playing the English political game" and a (presumably unwelcome) pitch to "acquire unprecedented clout over London.The Scotsman are critical of Nicola's logic too, arguing that:

"In fact, SNP MPs could take an interest in English NHS spending if privatisation was entirely off the table, but budgets were being affected by, say, a drive to cut wasteful bureaucracy, with a consequential cut in Scottish funding. The First Minister may have calculated that this new position will put pressure on Westminster to grant Scotland full fiscal autonomy. After all, if Scotland was in charge of its own finances, and the Barnett formula was scrapped, there would be no reason for the Scots to be interested in levels of English public services."

And the Scotsman must be right. The idea that the SNP should live life in the Commons as if there were no Barnett consequentials might be sustainable -- if the party agreed with the overall direction of public spending. If, however, you are dealing with a government hell-bent on shrinking the state, and doing so across departments dealing with devolved and reserved matters, circumstances change. Resistance to austerity cannot solely be a question of resisting disagreeable budgets and decision-making on reserved matters. Under the Barnett model, any number of "England only" Bills passing through parliament lay the legislative foundations for contracting public budgets.

Another example from outside of the health brief underlines the point. In 2012, the coalition passed the Legal Aid, Sentencing and Punishment of Offenders Act which, amongst other things, helped put legal aid in England and Wales in the fiscal vice. Much of the dirty work is done by subordinate legislation and regulation from the Lord Chancellor's department -- but a core function of the Bill was to hew back the public funds made available to individuals to pursue their disputes in the English courts by excluding great swathes of litigation from the safety-net of legal aid. Superficially, the impact of the 2012 Act is limited to the unlucky folk south of the Tweed, struggling to secure access to justice through law, but the spending cuts it helped set in train quietly erode Scotland's block grant too.

The essential question for the sceptics of the Guardian and the Scotsman is this: why should a self-denying ordinance become a suicide pact for devolved public services? All for the want of a horseshoe nail...