29 November 2013

White Paper Strategies

Government publishes long boring report.  Plenty of trees mulched, nobody dead.  Not really the stuff lively media and public interest is made of, is it? Wonkish characters in their garrets may chortle in joy, but you can't usually expect many callooh callays from the general public. But is this week's White Paper different? 

Without slighting the Water and Sewerage Charges Exemption Scheme for Small Third Sector Organisations paper and its ilk, the White Paper's importance clearly exceeds your average government business. So does its ambition. The Plain People of Scotland can tuck themselves up cosy in their beds tonight, untroubled by the detail of much government policy. The White Paper, by contrast, has to make an impact. It arguments, and to some extent, its detail, has to "trickle down".  It needn't do so immediately. It needn't do so in full. But this ambition posed obvious tactical challenges. How's the trick best to be performed?

For example, should the Scottish Government roll out a thematic programme for independence, bit by bit, dealing with immigration and citizenship one week, the economy the next, and so on? As we've seen over the past few months, the UK government have published a range of subject-specific dossiers, in their Scotland Analysis papers.  

This approach has some advantages. It breaks down the bigness of all of the policy issues into more discrete, digestible segments. For those with visions of your average punter with a short attention span and wandering attention, this approach might seem attractive. It gives you a series of front-page splashes in the papers, a series of news bulletins, giving you the opportunity to set the agenda - not for a day or two - but for a number of weeks. What's more, multiple interventions minimises the events dear boy, events factor. Hurricane, flood, scandal - unforeseeable Iberian interventions - it's all too easy for unknown unknowns to intervene and bugger up your launch. Or at least, knock it off its preferred trajectory.

On the other hand, it means that your information and your arguments are diffusely distributed across a series of lengthy and inaccessible documents. The chances of much of the Scottish population picking up any of these reports and engaging with their arguments is limited.

Despite their ability to command the front pages on sympathetic newspapers, one also has to question the extent to which even the existence of these Scotland Analysis papers have really impinged on the public consciousness. You don't read documents which you don't know exist.  Even if, as Adam Tomkins argues, the UK government papers don't aspire to give you reasons to vote No, but aim to sculpt the debate in a manner which forces pro-independence campaigners to answer a series of often awkward questions. It seems to me that there's a good chance that they've achieved this ambition, sending the media gyroscope spinning, and making SNP politicians speak to the Unionist agenda, and some of the most uncomfortable aspects of the case for independence. It remains to be seen whether these advantages prove evanescent, or deeply entrenched.

In the alternative, should the Scottish Government - as it has - hand down its policy Bible from on high, weighty and singular? Seen in the light of experience, this approach has some clear benefits and disadvantages too. A subject-specific paper would never have achieved the attention which Wednesday's publication commanded in the media. Not just on the front pages of newspapers. It dominated and reshaped the all-important tea-time news broadcasts. For anyone keeping even a lazy eye on the news, the existence of the White Paper is unavoidable. 

It remains to be seen how many folk in the country will want to consult the Nationalist Testaments in making up their minds, but by expending all of their force on a single blow, the SNP have at least made it more likely that engaged but undecided voters know where to look. Condensing its argument into a single accessible text also facilitates this. Not everybody is an amateur archivist, keen to scour the internet to find a string of lengthy government documents.  One click, and you've got the SNP vision, kit and caboodle. We could have done without the Spanish fireship sailing up the Clyde. I'm sure the air was blue in the SNP press office when it came through on the wires, but such are the perils of letting everything ride on a single publication.  Coordinated Unionist mischief was sure-fire. 

But isn't it awfully long? Who is going to read all that? Certainly, the White Paper is a long document, but it's wrong to think people minded to give it a look will behave like the harried media commentator, on camera in half an hour, and keen to pretend they've read and digested the whole thing.  The White Paper isn't a sustained argument which has to be consumed whole to be understood at all.  It isn't a polemic essay, but a work of reference.

This is important, both for the investigative voter, but perhaps more importantly - for activists.  For all the talk of "ground campaigns", activists on the doorsteps must have something to say.  Yes, Yes Scotland is a broad church, and a vote for independence is not necessarily a wholesale endorsement of the SNP platform.  But in my experience, when folk have questions about independence, they frequently concern fairly commonplace issues, seeking reassurance about the continuity of programmes or policies which are important to them, or simply keen to know that thought has been given, for example, to the criteria governing who will be a citizen of this new state. This is intended as no slight to the seriousness with which these questions are asked. But few undecided characters I've discussed the referendum with demand a discourse on the theory of the state or a first principle-driven account of the nationalist movement's political economy.

I've never found the "gamechanger" theory on the White Paper terrifically convincing. The demand for sudden reversals of fortune tell us more about the impatience of the commentariat than they do about the slow drivers of social and political change.  Certainly, if Yes is to carry the day next September, something has to shift. Those nine points between Yes and No must narrow.

But this referendum is an unanticipated, early confrontation between Scottish nationalism and its ultimate ambition. Victory will be won only by slow degrees, if at all. It remains to be seen whether we have enough time, between now and next September, to work that change. But the Yes campaign must borrow its motto from Arthur Hugh Clough: "say not the struggle naught availeth ... for while the tired waves, vainly breaking seem here no painful inch to gain, far back through creeks and inlets making, came, silent, flooding in, the main."

26 November 2013

The White Paper Constitution

An independent Scotland would have a written constitution. The text of that constitution would be formulated not by parliament, but by a specially-convened convention.  The Scottish Government would be a participant in that process, but just one voice among many.  The document would set out the basic democratic institutions of the new State. It could and would also go further, enshrining the rights of the citizen. It is envisaged that these would extend at least to the rights protected in the European Convention on Human Rights, but other concepts might be included.  

A ban on nuclear weapons within the jurisdiction, perhaps. And social and economic rights of unclear scope and specificity, but potentially guaranteeing specific policies, such as free higher education, or a guarantee of a vocational training place.  This constitution would also, presumably, enshrine the SNP leadership's preferred policy position of retaining a monarchy as head of state. You'd imagine that they would hope to take this issue off the convention table. It is unclear how this is compatible with a constitutional moment, belonging to the people rather than to politicians, which the government merely enables and participates in, rather than stitching up ahead of time. This much we knew before this morning.

Has the White Paper shed any more light on the Scottish Government's constitutional vision, anchored it in place? Not really.  The new constitution is a tricky area for the SNP. On the one hand, their commitment to a participative process of formulation - however vaguely defined - precludes anything beyond a general statement of the sort of principles they'd like to have examined by that process. Anything more, and you can imagine the paranoid Better Together news release: "Tyrant Salmond in undemocratic attempt to dictate constitution" shock. You can't win.

But today's list of ideas doesn't substantially extend or elaborate those which the First Minister has already canvassed in earlier constitutional speeches. There are gestures towards entrenching the "existence and status" of local government, environmental protections, and a majestic but superlatively vague proposal to enshrine:

"... entitlement to public services and to a standard of living that, as a minimum, secures dignity and self-respect and provides the opportunity for people to realise their full potential both as individuals and as members of wider society."

On one level, I'm a little surprised that the Scottish Government didn't take the opportunity to supplement this list further. I wondered if, for political reasons and the centre-left Yes coalition they're pitching for, the SNP might have used the White Paper to promote the idea of enshrining collective bargaining and labour rights in the constitution. They haven't done so - yet.  The White Paper also demurs to express any view on whether these rights should be judicially enforceable, or form only an elegant, uplifting preamble. Substantive questions, perhaps, for another day.

I'd also wondered if the Government would at least have used the White Paper to get a bit more specific about the process for formulating this constitution. What would the messy, democratic enterprise look like, in outline? They largely eschewed doing so, beyond confirming that "the pre-independence legislation will place on the Scottish Parliament a duty to convene an independent constitutional convention to debate and draft the written constitution". It is perhaps useful to canvass a few of the - very real - issues about formulating the constitution which the Scottish Government could have and have declined to explore in any detail in the White Paper.

1.  We know the Scottish Government want this Convention to formulate the constitution. But how will its membership selected by an SNP government post Yes? By appointment? Special popular election of candidates, on a national or regional basis? Some combination of the two? They make reference to citizen-led processes elsewhere in the world, but are noticeably coy about committing to any preferred model. This may not be a problem. Formulating this constitution will be an enterprise in itself, and who gets a formal say rightly a source of controversy.  

Better, you might think, for the SNP to avoid getting into these debates too soon, but a slightly more specific hint might have been a politically helpful statement of principle.  A missed opportunity to underline that we're not - or shouldn't be - talking about forming up a new gaggle of old establishment worthies - think of it as Calman Plus - to filter through all the ideas promoted by the Plain People of Scotland. The constitution has to be protected from political fixing - but Lord deliver it from the suffocatingly familiar atmosphere of "civic Scotland" too. 

2. A few more cynical points. We know that they envisage the constitution will be drafted by this convention. But how do they envisage that it will be ratified by the people? Will politicians have any power to amend, or to decline to submit this text in its entirety to the people? If some sections of the draft are controversial, will they be subject to separate questions in any referendum? And who decides what is a "controversial" issue anyway?

This isn't an academic concern. Look at the fallout from a citizen-led process in Iceland. That pristine, crowd-sourced constitution is still sitting on the shelf, spiked by politicians due to the radicalism of some of the proposals.  It is perfectly conceivable that something similar happens in Scotland. Say if the question of the head of state because controversial in the convention process, as it doubtless will. Because the SNP's head of state commitment sits uncomfortably alongside a citizen-formulated constitution, a certain evasiveness here is understandable during the referendum campaign - but the issue is bound to bite eventually. 

3.  In the "justice" section, the White Paper notes "the Inner House of the Court of Session and the High Court of Justiciary sitting as the Court of Criminal Appeal will collectively be Scotland’s Supreme Court".  While transitionally, this seems like a reasonable arrangement, we shouldn't foreclose considering a couple of other alternative institutional models. We might echo the United Kingdom, and form a new Supreme Court to consider all matters, civil, criminal, constitutional.  

Alternatively, we might depart from the Anglo-Saxon fixations and form a new Scottish constitutional court in echo of a number of continental jurisdictions.  This constitutional court which would not, like a supreme court, sit at the apex of other courts, trafficking in ordinary litigation as well as constitutional issues, but would be founded independently from the ordinary judicial hierarchy.  Although our constitutional traditions are likely to pull us in the other direction, perhaps leaving the courts of Session and Justiciary as they are, separate but integrated - the idea at least warrants consideration.    

But like much else in the constitutional debate after this White Paper, that is a question for tomorrow.

Crystal balls

For episode 38 of the For A' That podcast, we were joined in our plush broadcasting suite by Ivan McKee of Business for Scotland, and again by swithering Juliet Swann, who hasn't decided how to etch in her independence referendum ballot, yea or nay.  

On the agenda this week, last week's Institute for Fiscal Studies report on the pocketbook of an independent Scotland: would Scotland be jiggered? Ivan takes us through its claims.  The blether broadens out into a wider reflection on what is becoming a key referendum campaign theme: certainty and uncertainty. But can we ever really be sure what the future holds?

We also discussed last week's historic vote on same-sex marriage in the Scottish Parliament. But does our political history really tell a tale of Scottish liberalism in this field? And how has this quiet revolution in social attitudes happened?

You can listen to the show right here or on its homepage, or tuck it away for later by downloading it from Spreaker or from iTunes.  Happy listening.

21 November 2013

Equal marriage and the rising sun...

Can you be certain that the sun will rise tomorrow? It will. It rose today, it rose yesterday, and the day before that. And before that. I saw it. Dawn will break tomorrow. Ah, but that's today, and yesterday. And yes, you observed the sun in the sky. But what guarantee does that give you that it will break through the clouds tomorrow? Mathematical logic doesn't require that the sun break in the east. Or breaks at all. And your senses have no evidence that it will rise on Friday, only that it sprung from the sea on Thursday. But of course it will. Of course the sun will rise. You're probably right. But logically, you can't know it for certain, that's my point.

David Hume's Enquiry Concerning Human Understanding can be a disturbing tract. Those ideas of cause and effect you take for granted, that the sun will rise tomorrow, that the impact of one billiard-ball will dislodge and move another? These aren't necessary conclusions of deductive reasoning, but are at best provisional, probable judgements based on your experiences. There are no guarantees.  This is usually referred to as the idea (and sometimes, as the problem) of induction. The bottom line: we've got to be pragmatic, and make our best guesses, appealing to our experiences and judgements, and live as if we knew the sun would come up tomorrow. Hume's observations about probability aren't limited to physical examples, but extend to predictions about folk too:

"A man who at noon leaves his purse full of gold on the pavement at Charing Cross, may as well expect that it will fly away like a feather, as that he will find it untouched an hour after. Above one half of human reasonings contain inferences of a similar nature, attended with more or less degrees of certainty proportioned to our experience of the usual conduct of mankind in such particular situations."

Certainty seems much on political vogue at the moment.  Demands for rain-or-shine predictions of the future are a staple of the constitutional debate. In yesterday's debate in Holyrood, critics of the SNP government's equal marriage proposals harped on the same string.  Sure, Mr Neil, you've written all of these safeguards for religious bodies and people in your Bill, but where are the guarantees these protections won't be subject to legal challenge and fail?

Law-making in Scotland today is subject to complex and often unpredictable pressures. This is nothing new. The Scottish Parliament isn't sovereign. Holyrood may legislate across great swathes of territory, but is bound to observe the limits of the devolution settlement, Convention rights and European Union law. Constructing the scope of Holyrood's powers under the Scotland Act isn't always straightforward and predictable. The debatable legality of the independence referendum before the section 30 order was passed being an excellent case in point.  

European Union law is also, in many respects, open to interpretation, leaving the door ajar for legal challenges to the parliament's decisions. We saw - and see - this writ large, in the imminent challenges to the legality of the SNP's flagship minimum price for alcohol policy.  For the Scottish Government, the proposals do not represent an unlawful restraint on the single European market, but a policy intervention justified on grounds of public health, whose intervention in the single market is reasonably proportional to the end sought.  The tobacco giants Sinclair Collis and Imperial Tobacco used similar legal arguments, unsuccessfully to challenge the Scottish ban on cigarette vending machines in court.  

And as those of you who have ever attempted to read a decision of the European Court of Human Rights will know, human rights law isn't a bumper book of easily implemented rules either. Despite popular perceptions to the contrary, law is rarely so determinate or straightforward, but applying the Convention can be particularly tricky. Courts have to ask, does the law engage a protected right? Does the government measure pursue a legitimate aim? Does the measure strike a fair balance between the protection of rights and of the public interest? 

Opponents cited Convention rights to challenge the fox hunting ban early in the life of the Parliament. In 2012, we saw AXA and other big insurers try to rely on property protections under Article 1 of Protocol 1 to challenge the legality of the Holyrood legislation which confirmed that pleural plaques arising as a result of exposure to asbestos represented an actionable personal injury in Scots law.  AXA lost in the UK Supreme Court. 

So what's the lesson of all of this? Is it, as John Mason, Richard Lyle and Elaine Smith suggested in yesterday's same-sex marriage debate, that parliament should tremble at the mere possibility of legal challenges, and decline to enact the Bill? Should it do so in every circumstance, or just here? Ought Holyrood not to have banned cigarette machines, allowed foxes to be hunted down and torn to bits by dogs, declined to offer a remedy to those who have been negligently exposed to asbestos - or have attempted to introduce the independence referendum - for fear of a committed litigant, who might attempt, however unsuccessfully, to challenge the law? 

Because that committed litigant is invariably lying in wait, whatever the legal measure you're discussing, dreaming up ways to shape the flexible legal material of EU and ECHR law into an arguable case to put before the court.  That's the nature of the beast.  That's always Holyrood's basic predicament when making laws. To demand certainty where achieving cast-iron certainty is impossible, and then to cite that uncertainty as grounds not to pass this legislation, is cowardice, wrapped up in quibble and constitutional illiteracy.  It is to take the worst possible lesson from Hume's philosophy. If there is no reassurance which could possibly persuade you, no reasonable prediction based on good evidence which you would accept, you're beyond talking to.

If you don't want to endorse same-sex marriage because you feel Yahweh's burning gaze on your back, of because you feel the Natural Law demands it, by all means say so, and vote so. As a Godless tyke, I can't sympathise much with Roseanna Cunningham's explanation for her No vote yesterday, but characteristically, Roseanna gives you her reasons bluntly, without legal pettifogging. That's creditable, in its way. But the hyperventilated fears expressed by Mason, Lyle and Smith yesterday are not. The SNP MSP Marco Biagi put it best yesterday:

"Above all, we must not be drawn by the remote and hypothetical challenge to religious freedom to such an extent that we overlook the very tangible, very real and very much on-going violation of personal freedom that is the exclusion of people of same-sex attraction from expressing their love through marriage, which is the institution that our society considers to be the paragon of commitment."

16 November 2013

A Stooge Writes

I'm a sort of academic. I'm completing a doctorate, teach public law in a couple of universities, and with any luck will be able to continue doing so in the future.

A year or so ago, I had the good fortune to be invited to appear on BBC Newsnicht to speak to the legality of Holyrood's independence referendum. This was in the heady days before the section 30 order had been agreed and passed by Westminster. In public, the SNP was holding unflinchingly to its line that there was no question that calling a referendum was within Holyrood's legal powers, will or nil the UK government.  

South of the Border, the London government took the diametrically opposed line: the independence referendum was clearly ultra vires and could expect to be struck down in court.  Not to be outdone, the Labour MP Ian Davidson and his colleagues on the Scottish Affairs Committee composed their own report to the same effect. Unless Westminster gave the nod, he argued, the referendum couldn't happen.

As long-term readers of the blog will recall, along with others, I dissented from both extremes. The independence referendum was neither clearly within or clearly outwith Holyrood's powers under the Scotland Act. It was, I suggested, arguable either way and it was difficult to predict what the courts might do if it popped up on their docket.  In their blithe confidence about the outcome, both the Scottish Government and the Scottish Affairs Committee were being disingenuous, doubtless for political reasons.  In public at least, both embraced the legal reading of the case most congenial to their own constitutional preferences.

On the night, Ian Davidson made waves with his brash handling of Isabel Fraser. The next day, I found myself in the headlines "after it emerged an apparently neutral constitutional lawyer interviewed by the programme was an SNP blogger", to quote Magnus Gardham's article in the Herald. Ian Davidson and Alan Cochrane more or less explicitly suggested that I lacked any academic integrity, and had been acting as a Nationalist stooge, taking the leadership line on the referendum's legality, and in cahoots with a partisan BBC Scotland, tried to hoodwink the Scottish people. Or at least that small segment of the Scottish people who watch Newsnicht.  

Neither of these weighty sages paused for a moment to consider whether what I had actually said mirrored the SNP line-to-take on the legality of the referendum.  If they had done so, they'd have quickly discovered that it wasn't. If I was put up to play the stooge, I played the role but poorly.  But a Nationalist stooge served their purposes, so they measured me up for the costume and the pointy hat. 

At the time, I thought all this was rather droll, and par for the course given the pepperiness of the constitutional debate, but I suppose I ought to have been angrier about the gratuitous way the  politician and journalist felt free to slate my intellectual credibility, by cynically conflating political sensibilities with the outright lack of independence of mind or honesty of character.  

It is with these experiences in mind, that I approach the latest referendum hoo-ha, around Shona Robison's reported questioning of whether Professor Chris Whatley chairing of a Better Together meeting in Dundee was compatible with his role chairing the University's Five Million Questions project, whose platform notes that:  

"...in what is an impassioned and partisan debate the objective neutrality of academia is ideally placed as a forum for illuminating discussion."

Better Together have, predictably, blown a gasket, throwing around super-heated allegations of gagging, and peddling ludicrous victim-fantasies of an oppressive Nationalist state. I'd take this humbug rather more seriously, if there was the slightest chance of the No campaign keeping its peace, had Professor Whatley been detected chairing a pro-independence meeting instead.

But you can bet your bottom groat that such an affiliation would have seen the Professor flayed across a guncarriage, as Cochers gleefully recounted "grave concerns about the fair-mindedness and balance" of Dundee's Five Million Questions referendum project. Perhaps with a little soupçon of SNP totalitarianism and political fixing, for larks. To my considerable amusement, the People's Black-Hearted Unionist now keenly feels the need to uphold the integrity of those in the academic field against their political detractors.  

"Threatening the integrity of academics, especially over their right to freedom of speech, is not the way of civilised societies. Those charged with the responsibility of educating a nation’s future should have the untrammelled entitlement to say what they like when they like and about whatever subject they choose."

We have a right to expect honesty and rigorous treatment of the evidence from our academics, whatever their discipline, but we have no right and no reason to expect them to be without political and constitutional convictions. The "neutral academic" Davidson and Cochrane demanded a year ago, and used to duff me up, is an unhealthy fantasy. Certainly, not every academic will be a party political partisan.  I expect most wont be.  But each of us carries our political and theoretical freight.  

I have no idea how Professor John Curtice intends to vote in 2014, but I do know that he approaches political analysis in psephological terms, seeing politics primarily through the medium of opinion polling. Some - many of us - do not share this theoretical lens. An economist will be disposed to analyse constitutional politics in economic terms, a sociologist or a lawyer could be expected to take a different tack, appealing to radically different views and understandings of the world.  

We needn't resort to the crude ad hominem language of political bias or stoogery to make the case that academic contributions to the constitutional debate should be welcomed, but should also be treated gingerly, assessed on their merits, their assumptions probed.  We aren't a priest-caste, bestowing knowledge from on high on a credulous people. We're in with the bricks of the political and constitutional and social debate like everyone else.  

15 November 2013

Baffling Poppycock

It's one of the weirder talking points in the corroboration debate: even if we abolish corroboration, you couldn't be convicted on the evidence of a single witness

As I have written here before, I'm swithering on the issue, but am increasingly inclined towards Kenny MacAskill's side of the argument. But one reason why I'm still undecided is that the claims being advanced by both sides of the debate, to justify retention or abolition, too often appear confused, hysterical, and even dog-gone fanciful. 

Enter Kenny MacAskill, sofa right. The Cabinet Secretary for Justice appeared on Scotland Tonight on Wednesday, discussing the proposals set out in his Criminal Justice Bill and defending the proposed abolition of corroboration. Advocate Derek Ogg QC made the contrary case. Kenny argued:

"We’re not going to have people convicted on one single evidence from one single witness.  That’s been made quite clear by the Lord Advocate; there will always require to be additional evidence. That’s been made clear it’s not just a quantitative, but a qualitative test so the evidence of one person on its own will not be sufficient; there will require to be additional evidence that will be led."

And I scratch my head.  Let's remind ourselves (a) what the current rule on corroboration requires and (b) just what Kenny's reforms will do.

Definition: Corroboration

In Scots criminal law, only the essential elements of criminal offences need to be corroborated by evidence from two different sources.  To borrow Lord Carloway's definition:
7.2.7 Generally, there are two crucial facts requiring proof in every crime: (1) that the offence was committed; and (2) that the accused committed it.
In a murder case, for example, the crucial facts would be that Jimmy was killed, and that Bob killed him.  It can't be emphasised enough that you don't have to find two witnesses to say "I saw Lee Harvey Oswald hunched over a rifle on the grassy knoll."  Scottish courts treat circumstantial evidence as potentially corroborative.

Equally significantly, corroborative evidence needn't point decisively to the guilt of the soul in the dock. As Lord Carloway observed in his Review, evidence can "be corroborative even if, taken on its own, it does not point conclusively, or even at all, towards an accused's guilt". The corroboration might be an a muddy boot, equally consistent with the prosecution and defence cases. Even under the status quo, competent convictions may rely - almost in their entirety - on the direct evidence of a single witness.  But legally, the crucial facts must (with some exceptions) be spoken to by two independent sources of evidence. 

What Kenny's Bill will do...

So that's the current dispensation. What will replace it, if Kenny's proposals go through? Under a heading "abolition of corroboration", section 57 of the draft Bill sets out that:

Corroboration not required 
(1) This section — (a) relates to any criminal proceedings, (b) is subject to sections 58 and 59 .
(2) If satisfied that a fact has been established by evidence in the proceedings, the judge or (as the case may be) the jury is entitled to find the fact proved by the evidence although the evidence is not corroborated.

Put simply, the legislation will eliminate the idea that the essential facts of the case - that a crime was committed, and that it was the accused who committed it - must be corroborated. That's the whole rationale of the reform. It will allow folk to be convicted on the evidence of a single voice that (a) the crime was committed and (b) the accused committed it.  It's for the trier of fact - judge or jury - to determine whether the prosecution has proved that beyond reasonable doubt.  But the credible and reliable evidence of a single witness will be enough.  Make no bones about that. No ifs or maybes.  That's the essence of this reform.

So. Um. No single-witness convictions?

So what the devil is Kenny talking about when he says "We’re not going to have people convicted on one single evidence from one single witness?" Take a hypothetical sexual assault case, the sort of case we hear about a lot in the corroboration debate. Kelly says John sexually assaulted her, without consent.  There is no other direct evidence. Because Kelly did not take her complaint to the police for over a week after the alleged offence, there is no DNA evidence capable of confirming Kelly's evidence that sex took place. There is no witness to the complainer's subsequent distress after the incident, capable of corroborating the absence of consent on Kelly's part. John denies everything. There is no other evidence to confirm his presence in the house on the day alleged.  But Kelly is a credible and reliable witness, with no obvious reason for confecting the story. Should criminal proceedings be taken?

Kenny seems to be suggesting here that the answer is no, that the Crown wouldn't proceed. But that's exactly what happens under the current corroboration rules. That's exactly the situation the SNP government claim they are seeking to remedy. So why change the legal rules if, de facto, the Crown intends to revive exactly the same test in deciding whether or not to prosecute? It is a bewildering claim.

Remember, under the current law, only essential facts need to be corroborated, not every fact which the prosecutors lay before the jury in their deliberations. The reason given most often to justify abolishing corroboration is that proving these bare essential facts is impossible in too many cases, particularly where the alleged offences take place in private. If the Lord Advocate instructs prosecutors to apply a quantitative test to the evidence, as Kenny argues, many of the complainers who find the doors of court closed to them at present will remain, unhappily, at the gate, still deprived of a day in court.

Change the facts of our hypothetical case just a wee bit.  Say that, in police interview, John admits that he had sex with Kelly, but argues that the intercourse was consensual. In this situation, the fact that sex took place is now corroborated.  But absent any witness which can speak to Kelly's distress after the event, under the current corroboration rules, this case would fail on the grounds of insufficient evidence.  If the Crown rigorously applied its own "quantitative" test, as Kenny suggests, presumably the case wouldn't be taken to the High Court either. The absence of consent isn't corroborated.  Only Kelly's evidence - the evidence of a single witness - speaks to it. 

But this is precisely the sort of case which the corroboration reform is designed to catch; precisely the sort of complainer whose "access to court" Kenny was passionately, and I'm sure sincerely, arguing for on the Scotland Tonight sofa.  So what to make of his mystifying reference to a "quantitative" safeguard even if we abolish the corroboration rule? I've tried to make some sense of Kenny's argument, and put it in its best light, but I'm stumped.

The whole point of reforming corroboration is that you could be convicted on the voice of a single witness. That isn't to say that prosecutors will habitually decide not to lead strengthening evidence in support of their cases, to overcome the high hurdle of reasonable doubt.  But that's what this law is all about. For Kenny to suggest otherwise is baffling poppycock.

11 November 2013

You sunk my battleship!

Strategic defence procurement, I'm unashamed to admit, isn't really my bag. Little in a law degree prepares you for thinking about Brigadoon Class Sloops or which port and yard has the requisite know-how and balance of commercial imperatives to launch the ever-vigilant (if slightly listing) steel-plated HMS Drouthy Neibor.  

 But job-losses and the future of ship-building on the Clyde (martial or peaceful) consumed the news agenda in Scotland last week, and are the first topic up on Episode 37 of the For A' That podcast

Joining Michael and me this week are SNP and Women for Independence-bod, Natalie McGarry, and Stuart Campbell of the Wings Over Scotland blog.  Having unscrewed some of the rivets holding the frigate-controversy together, we shifted tack into the storm currently engulfing Johann Lamont and the Scottish Labour Party. Here be dragons. Between Falkirk, Grangemouth, and the party's holing itself below the policy waterline in order to win Dunfermline, we take a closer (and not entirely unsympathetic!) look at the party's fortunes, two years into the SNP's second term in office. 

Escaping from these choppy waters, we moved on to our third topic. I'm speaking at a Scottish Constitutional Futures Forum event at the University of Strathclyde this week, examining the constitutional options faced by an independent Scotland if we vote Yes next year.  What should be in our basic law? What principles should inform the debate? And for that matter, who should decide? Is Alex Salmond right, for example, that things like free higher education at the point of use should be constitutionally protected? If that, why not other things - trades union rights, women's right to have their reproductive choices protected, a minimum wage?  

Lastly, as we were recording on Remembrance Sunday, we discussed the annual poppy controversy. Has the solemn act of remembrance seen the poppy inappropriately appropriated by showbizzy glitz? Is this a generational shift, perhaps, as the generation who fought and lived through recent conflicts, leave us? Can the militaristic quality of remembrance of those killed in war forget important victims of conflict? And most controversial of all, perhaps, has this - can this - annual national ritual shade from the mournful recollection of wasted life into the politically problematic valorisation of war?

You can listen to the show right here or on its homepage, or tuck it away for later by downloading it from Spreaker or from iTunes.  Happy listening.

6 November 2013

Fiat Justicia, Pereat Some Badly-Written-Wummin

A: "I'm a lawyer."
B: "Oh? What sort of thing?"
A: "Mostly criminal defence work. These days."
B: "I don't know how you do it."
A: "Do what?"
B: "Defend people like that. Criminals. People who do awful things. Aren't you worried, if you get them off, that they'll be free to do something terrible to yet another innocent person? Representing them, even if you believe - even if you know - they're guilty? I couldn't do it..."

This is a grim party staple. The sort of thing you resort to, when the flint of conviviality isn't striking, and there's no light or heat in the conversation. It also tends, in my experience, to solicit boring but worthy answers from the glazed lawyer, who listens to the questions with a mounting attitude of resignation, grasping stoutly for the claret glass to get them through it. Everyone is entitled to a defence. Fair trials, terrifically important. Not for me to judge. Rhubarb, rhubarb.

This predictable question is at the heart of the BBC's predictable new legal drama, The Escape Artist.  And like the droopy party chat which it takes as its inspiration, The Escape Artist is numbingly dreary.  The Artist in question is Will Burton, played by David Tennant.  Burton is a thriving junior barrister, renowned for his surprising defences in hopeless cases: a trimmer, less charming Rumpole figure, without the Wordsworth and the termagant spouse in She-Who-Must-be-Obeyed.  

Yes, Burton may be guilty of working too hard at his legal practice, and neglecting his wife and wean a bit, but he is surrounded by a cardboard cut-out Happy Family. They might as well come with a dotted line in red across their throats with the instruction "cut here".  Burton's saccharine and colourless domestic bliss is upended when he takes on the case of a sub-Lecter, facing charges on overwhelming evidence that he brutally murdered, mutilated and sexually assaulted a young woman.  

This menacing character maintains an aviary in his living room. Flat-cap-and-Yorkshire tea this is not. He ought to have "I dunnit" rent into his forehead, or a colourful range of shirts run up, bearing the legend "homicide's my hobby: do not approach or you'll be next". As you'd expect, the Escape Artist produces the anticipated jurisprudential trick - but manages to slight this guilty murderous goon, resulting in ... well, just what you'd expect really. You can imagine the transactions at the script meeting: "wouldn't it be wizard, if we visited a defence lawyer with the bloody consequences of his profession?"

Napoleon once quipped, having ditched the infertile Josephine in hopes of a younger wife who could produce an heir, that "what we need is a walking womb." Although Ashley Jensen does her best to give her cardboard character some idiosyncratic life, her purpose in the drama is primarily (a) to have baths (b) to hover supportively around Tennant's character, cooing to ratchet up sympathy for this dramatically bland clan and (c) to get brutally hacked to death (it is the predictably which makes it harrowing) by Toby Kebbell's none-too-subtle bird-fancying sociopath. 

Sorry to ruin the end of the first episode for you, but if you didn't expect to see Jensen lying face-down in a pool of gore fifteen minutes into this thing, after Tennant had secured the inevitable acquittal on a technicality, your sensitivity settings need recalibrating. Character Arc: Death is not an unfamiliar fate for chronically underwritten, often female, characters of this sort, but The Escape Artist reduces Jensen's character to a ridiculous cypher, a supporting actress in Burton's tragedy with little personal interest, texture or spirit beyond what the spirited and appealing Jensen brings with her.

That's just hackneyed plotting, crass characterisation and bad writing. That'd be enough to hull this programme beneath the waterline. What sinks this piece altogether is the banal, unoriginal way the writer - David Wolstencroft of Spooks fame - addresses his central theme. The work of a defence advocate does pose interesting ethical questions. Wolstencroft's toom tabard plotwork means that The Escape Artist poses almost none of them.  He gives us a totally unsympathetic criminal. A criminal we all know to be guilty. The interesting contingencies and uncertainties of real life are all entirely eliminated.

If you are sitting, talking to a client who insists, plausibly, that he is innocent of the crimes imputed to him by the prosecution, I dare say his protestations and denials might seem convincing. At least in the moment. David Tennant, and the audience, face none of those conundrums here.  Because, as everybody knows, all complex issues are best examined in drama, by knocking off all their grey edges and ambivalences. As engagements with the theme go, The Escape Artist is turgid.

Paired back, Wolstencroft seems to be asking us, should folk who keep owls caged in their living rooms all be summarily shot without trial - just to be on the safe side? After all, Fiat Justicia, Pereat Some Badly-Written-Wummin...

1 November 2013

Scottish Labour: learned nothing, forgiven nothing.

I have an embarrassing admission to make: I rate one of President George W Bush's speech-writers. My social democratic sentiments may baulk at the conservatism he promotes, and we may share relatively few political values, but the Canadian-American political analyst, David Frum, is a sharp cookie.  

Frum has a bit of a tin-ear when it comes to his interpretation of British politics, but whatever my disagreements with him, there's undeniably a mind at work there, which is admirable irrespective of one's political divisions. If you are interested in your American federal politics, Frum's analysis of "why Romney lost" at the Policy Exchange UK earlier this year repays attention. 

Another one of Frum's favourite themes popped into my mind this week, unexpectedly, during Johann Lamont's interrogation of the Maximum Eck at First Minister's Questions in Holyrood.  Frum has helped to popularise the unnecessary wonky-sounding phrase of "epistemic closure" in American politics (or at least, introduced it to "Beltway" pundits).  Seemingly nicked from academic philosophy, in its political application, the idea refers to the effect, when a party and its supporters load themselves up into the echo chamber, slam the door shut behind them, and turn the key in the lock. Frum has the Tea Party dominated Republican caucus in the House of Representatives, and its increasingly eccentric political fixations, in mind.

Inside, all is warm and cosy. Dissenting voices are smothered into silence, or exile themselves from the stultifying fug of its unquestioned, and occasionally dangerously wrong, consensus. The common sense in the room, however uncommon it may be in the country, works its strange magic.  Everyone I know agrees with me, so surely everyone really agrees with me.

I've written about this phenomenon before, in the anti-Nat assumptions of the Oxford college high table.  Such closure is not limited to the right of centre, or to those suspicious of Scottish nationalism. Folk love newspapers and blogs which conform with their pre-existing beliefs (or, if we're talking about folk we disagree with, their prejudices).  If you and your colleagues envisage yourself as an idiosyncratic minority collective, little harm might be done. If, by contrast, your small knot identify yourselves and your opinions with those held by the whole body of the Plain People, the script for trouble composes itself. As one of the madder unsuccessful Republican senate candidates said the other year,  I'm not a witch. I'm you.

In its loopier manifestation, this can resolve into the belief that everyone agrees with me, even if, when given the opportunity, they decided not to.  When challenged, this argument sometimes transmogrifies into a second form: All the people that really count agree with me, even if ... er ... you know ... they didn't actually vote for me. We really won in some important, spiritual, non-real-world sense, while the real victor is a disreputable cheat whose legitimacy is always suspect.  Epistemic closure allows different definitions of success and failure to be applied.

In the United States, the ideological echo is furnished by the rhetoric of Talk Radio, poisonously partisan cable-news outlets, and the willingness of both to depart from ... um ... reality where the facts aren't comfortable to their ideological commitments.  There's no point in pelting folk inside this echo chamber with contrary evidence. Such data can always been shaken off as the lies brewed up by the "liberal media".  Put your unflinching faith in the priests and apostles of your own movement, whether or not they are unprincipled chancers, transparent hucksters or empty-headed reprobates. "Who're you gonna believe honey, me or your lyin' eyes?"

A parallel imperviousness to reality characterised one of Johann's flyaway lines at FMQs this week. She quipped:

"One would think that, having had a fortnight off, the First Minister might have had a think about doing his job properly. The First Minister would do well to listen to the lesson of Dunfermline. The people of Scotland want Scotland off pause; they want him to stop obsessing about independence, and for him to do his day job."

Now, we all know that Labour have been desperately pushing the line that "Scotland is on pause" under this SNP government, however unsuccessfully.  Eminently predictably, Salmond snarked back:

"First, I will address my two weeks off. Along with others, I devoted a huge amount of time during the past two weeks to helping to save Grangemouth, which is a key part of the Scottish economy. I am not quite certain what Johann Lamont’s role was in that, but I thought that her silence was meant to be helpful."

Whatever the observable reality, promote your agenda.  Whether or not the argument looks remotely credible to anyone else, press on with it. You smite for truth and goodness, whatever mere worldly facts disclose.  Even if Salmond was really busting the gut to save Grangemouth - or for the horribly cynical, even if he was only bursting the gut to appear to be trying to save the petrochemical facility - in the entombed Labour mind, the First Minister was really just out on constitutional manoeuvres, neglecting the country. Scotland on pause. You can't win with these people.

Cara Hilton's largely unreported victory speech in Dunfermline spoke for the echo chamber even more explicitly. Reading her preprepared remarks, Hilton suggested that the by-election represented an important waystation on Labour's journey of "reconnecting" with all Scottish communities, "rebuilding trust" in the party. A hard road, she recognised. But one to be trod, with Johann leading the way, like Moses in the desert. So much, so boilerplated. But she went further, hoping that this "reconnection" would mean that :

"... many more Scots will see Labour as the party that we have always been. The party that is on their side. Representing their best interests, aspirations and dreams for the future."

Being an instantly forgettable by-election speech, it is easy to miss just how hubristic and irresponsible this rhetoric is.  The problem faced by Labour, on Hilton's diagnosis, is not their own missteps, or errors, or mediocrity, but the people's loss of trust in the party that was always really on their side. The people misapprehended where their interests lay. If Labour is to win again, the people must change, not the party. Lamont's problems are entirely about communication, not about what is being communicated. That's the political lesson to take from the party's six doldrum years.  Remarkable.

The fatal danger of epistemic closure is that it lulls you into the belief that everyone else shares your - often quite eccentric and extreme - ideas, preoccupations and obsessions.  Memo just in: they don't.  That JoLa or her PR stooges still thought that they could get away with pitching such an incredible jibe Salmond's way speaks volumes. As Talleyrand said of the deposed House of Bourbon, sitting in vinegar, stewing, in defiance of the changed realities in the French Republic, "they have learned nothing and forgotten nothing." And forgiven nothing.