29 December 2015

"He hath a daily beauty in his life that makes me ugly..."

It has become something of a ritual. During the summer, I try to go back to Shakespeare. Like everything you are introduced to in school, there is always the temptation to consign his works to the bad fire as an adult, unread and unseen. You recall the clunky BBC adaptations. The emotionally-empty and unrelatable Gielgud-style performances. The stilted readings as your fellow students stumbled over the verse. Schooling wrecks drama - and poetry, for that manner - for too many people.

We had one teacher who insisted on reading out the whole of Hamlet himself in the same flat, perfunctory tone. Every Act, every scene, every character. We empathised more, I think, with the Prince of Denmark's "to be or not to be" speech than might otherwise have been the case, as we watched the rain wash from the concrete, slowly staining the classroom windows white. But the fun, the spice, the messy humanity, the psychological and emotional dimensions -- too often they died upon the page.

I came to see things differently when I lived down south, and found myself cast in one of Shakespeare's trickiest comedic plays during an Oxford summer - Taming of the Shrew. I was Hortensio - a quivering, sexually inept monkfish of a man, who gets cracked over the noggin with a lute and ends up in a loveless marriage with a dragon lady, the elusive but brattish Bianca having slipped from his faltering, amorous grasp. Bloody type casting. The experience was enlightening and enjoyable in any number of respects, but performing the work freed it from the lifeless worthiness of the schooltext into something else. It became easier to read it on recognisably human terms rather than the epic, joyless, sexless high poetry it seemed like in school.  These aren't prim Victorian morality plays.

But even then, sitting in your garden, trying to conjure the plays into imaginative life can be work, hard work. Until I read Othello this summer. The play had remained high on the shelf, neglected, for years. Rarely, if ever, has the rendering of a character on the page struck my imagination more forcefully or more troublingly than Iago. When you read John Byrne's scripts, for example, it's the Glasgow patter on acid. A vivid distillation of character, mood and time, the scenes conjure themselves in your mind's eye. Othello - quite unexpectedly - had the same quality for me. Psychologically, it sang.

We have a soft spot for beguiling villains, whose schemes play out against a grand tapestry of ambition, statecraft and high politics. Richard of Gloucester. Darth Vader. Francis Urquhart. As a child, steeped in the Disney films of the 1990s, the scoundrels of the piece always seemed to me more charismatic than the heroes rendered in pastel shades. I'd take Maleficent and Scar over Prince Charming and Mufasa any day.

But there is something about the smallness of Iago's schemes, their pointlessness, their family scale -- which makes him both despicable and profoundly disturbing. The intimacy of the setting intensifies his hatefulness. And is this, perhaps, what sets Iago apart from Richard III? Our world is full of Iagos and their wreak their cruelties in small places, close to home. I suppose every family knows at least one person, who embodies his bleak and motiveless malice. 

Iago has a haunting line, explaining why he wants to visit ruin on the blameless Michael Cassio: "He hath a daily beauty in his life that makes me ugly." It is chilling and precise expression of an all too familiar bitterness - that small, vampiric sensibility which can't see happiness without leeching at it. Badness, and rottenness. In literature, the devil often has all the best tunes. But in reality, wickedness has no dark glamour. Evil is, classically, banal. And if loving is to will the good of the other, in Iago, we find its complete abnegation.

Othello is a late entry, and an unanticipated one, but by some stretch my most memorable book of 2015.

24 December 2015

♫ One more sleep til Christmas ♫

With a wee piece in the National this morning on yesterday's minimum alcohol pricing decision, I hang up my wig for the year. I'm done. Just one more sleep till Christmas. The cider is mulling. Great trenches have been hacked from a fat, plumptious pork pie. The Muppets have been deployed, and Marley and Marley are summoned. 

2015 has been a splendid, but also a curious, and sometimes disorienting year. In the wake of the general election, I wrote a lengthy piece for the Drouth on how that remarkable election put an axe to the root of a great deal of what we once took for granted in Scottish politics. 

"Much of what once was solid in Scottish public life has melted into air. Our politics, which for so long seemed dominated by steady and dependable assumptions, has become strangely contemporary. The old maps and charts give out. Poles have reversed, polls have reversed, and the compass doesn’t understand its points."

There are two bereavements here. Labour's collapse must be the subject of grief for its hard-working and committed supporters. But what has generally gone unnoticed is how unprecedented success challenges - and challenges quite fundamentally - the outlook of longer term SNP supporters.

"The SNP is no longer a party for losers, for outsiders, crackpots and contrarians. It is no longer a party condemned to perpetual opposition. The lifelong holder of minority opinions now finds himself in common company with a great part of the nation. The party’s core ambition – independence – has not yet secured majority support, but has been thrust into the mainstream of UK and Scottish politics for the first time in this nation’s history since the Union of 1707. Politically, this may be the source of understandable glee for Scottish Nationalists. But psychologically, we should remember the secret tie between wound and weapon. Remember that the hater is somehow invested in the object he hates, the opposition in its opponent. Scottish Labour’s humbling is at once gratifying and disturbing because it knocks through one of the structuring pillars of Scottish political life. You derive a sense of freedom from the act of destruction, but also one of anxiety. What now?"

As the end of the year approaches, I've seen nothing to suggest that we've properly come to terms with this transformation. The 2016 Holyrood election will - understandably - encourage a continuing preoccupation with the crucifixion of the Labour Party. But for the Nationalist government, 2016 will inevitably be the bringer of dramatic choices, and decisions about "taking sides in Scotland as well as taking Scotland's side." The holding position of the 2015 budget, perfectly cannily, defers most of the most dramatic choices. 

But to govern, as they say, is to choose. 2016 is Nicola Sturgeon's moment to go forth, and swither no more. The Holyrood manifesto will speak volumes. Can we expect a powerful SNP government, given an unprecedented democratic mandate to reshape Scotland, fizzing with ideas, to attack a political mission with zeal? Or will we see a re-run of 2011’s slick but policy-lite “team, record, vision” campaign? Tricky questions for the New Year. 

For today, however, all that remains is to thank you all for your attention and your visits, your many kindnesses and your comments and contributions here on Lallands Peat Worrier over the last year. I hope it has been diverting. May your puddings be well figged and your claret fine and fruity. Have a splendid Christmas, and a nourishing break.

18 December 2015

Do Police Scotland have the right to remain silent?

Holyrood's Justice Committee gave Deputy Chief Constable Neil Richardson a bit of a drubbing on Tuesday. MSPs questioned the senior police officer with uncharacteristic ferocity and skepticism, on how it came to be that Police Scotland "recklessly" obtained communications data about a journalist's sources without the necessary judicial approval. 

Richardson's line was that he had been cast as an "archetypical villain." Taking swipes at reporters and reporting, he insisted that the force's recklessness should be understood, not as sinister over-reaching or indifference to critical rules on the integrity of data from prying coppers, but a wee human error by a senior, well-intentioned officer who thought he was applying the rules properly. Their ratty exchanges in parliament left MSPs unconvinced that they'd heard the whole story. By the end of Tuesday's meetings, MSPs had resolved to summon Chief Superintendent Clark Cuzen, DSI David Donaldson, DSI Brenda Smith and DI Joanne Grant to parliament, to speak to the issue. Donaldson had been named by Richardson earlier in proceedings as the officer responsible for "misinterpreting" the RIPA rules. 

But the front page of today's Herald suggests considerable police disquiet in the ranks about the idea of operational officers appearing before Christine Grahame's committee. David Leask has the scoop. Richardson is reportedly taking legal advice on whether his officers can decline to attend, with sources complaining of an "unprecedented political interference" in policing. Well, what are Richardson's lawyers likely to tell him?

Firstly, the Standing Orders of the Scottish Parliament distinguish between invitations to give evidence, on the one hand, and Holyrood's powers to require attendance. Invitations might safely be declined for any number of reasons. There are no legal penalties for doing so. On the papers, it is clear - at present - that these officers have only been invited to attend the Justice Committee's proceedings. What Police Scotland must carefully judge, however, is whether MSPs are likely to play hardball, and to respond to any polite refusal of their invitation with a requirement that these officers appear.

Under section 23 of the Scotland Act 1998, Holyrood has the power to require "any person" to appear before it, or to produce documents, "concerning any subject for which any member of the Scottish Executive has general responsibility." Under s. 23(7), judges and tribunal members cannot be compelled. Procurators fiscal aren't required to "answer any question or produce any document concerning the operation of the system of criminal prosecution in any particular case" if the Lord Advocate considers answering questions or producing documents "might prejudice criminal proceedings in that case or would otherwise be contrary to the public interest."

More generally, witnesses aren't obliged to answer questions which they "would be entitled to refuse to answer or produce in proceedings in a court in Scotland." But under the Act, there is no general police exemption from parliamentary scrutiny. Even concerning operational matters. 

What happens if the witness doesn't turn up, or if the documents demanded are never produced? It is a criminal offence under s.25 of the Scotland to ignore a requirement to appear, punishable by imprisonment for a period not exceeding three months, or a fine of £5,000. Under Rule 12.4 of Standing Orders, the Justice Committee is fully empowered to use these tools of compulsion and discovery. 

Which - depending on the strength of political will behind this, and the raw nerves of both the committee and the police force - must make bleak reading for Deputy Chief Constable Richardson and his officers. There may, however, be a wee legal wrinkle here which the police might be able to exploit. Holyrood's powers to compel witnesses to appear are subject to one important limitation. Witnesses may only be required to speak to "any subject for which any member of the Scottish Executive has general responsibility."

On one formulation, MSPs are seeking to scrutinise the general operation of policing in Scotland here: a devolved matter. But the heart of the Justice Committee inquiry is the application of RIPA. And under Schedule 5 of the Scotland Act, the interceptions of communications is a reserved matter. Scottish Ministers do not have "general responsibility" for its regulation. This is a pretty thin argument, I grant you. But if you are an anxious police officer, in search of any legal pretext to decline to appear, it might offer you just the wisp of an excuse. 

17 December 2015

Mr Trump goes to Strasbourg?

Yesterday, the UK Supreme Court put an end to Donald Trump's long-running legal action against the Scottish ministers. The case concerned the lawfulness of a planning consent, which ministers had granted to an offshore windpower project, overlooked by Trump's golfing paradise in Menie. 

As has become customary in cases of this kind, the wheels of justice ground fairly slowly. Lord Doherty dismissed Trump's petition at first instance in February 2014. The Lord President in the Inner House of the Court of Session backed him up in June 2015. Yesterday's ruling from Lord Hodge and his colleagues represents the end of the line for the bumptious business man. At least in turns of the domestic courts. His golfers will just have to get used to watching the shearing white turbines rotate.

But the BBC brings tidings this morning that the Donald "plans to take his legal challenge to an offshore wind farm to the European courts." I read this with some interest.  The BBC relate this declaration of intent pretty uncritically, but if (a) you've been following the case at all or (b) know anything about the european courts which Trump might bring his complaints to -- you very quickly realise the whole thing is complete bunk.

Why? Firstly, we have to look at what the legal objection to the planning consent was all about. Despite the big splash the Supreme Court decision made, almost nobody reported what the justices actually had to decide. What was Trump's big legal problem? If you dig into the decision, you see the dispute was pretty narrow, and pretty technical. The whole case turned on nice questions of statutory interpretation, the meaning of the UK Electricity Act of 1989, and the power of Scottish ministers to license electricty generation. 

At first instance, Trump's lawyers tried their hands at a common law argument, arguing that Scottish ministers were biased in their decision-making on the windfarm project. This argument fell away higher up the judicial Christmas tree. Notice what is missing here. All the way through his long case, Trump's advocates had nothing to say about the law of the European Union or the common market. Trump initially argued that the fundamental rights he enjoys under the European Convention had been rudely and unjustifiably infringed by the Scottish Government. But after Lord Doherty rejected his case categorically in the first hearing, he had no human rights arguments at all, in fact. No further references to unlawful interferences with his property rights. No case grounded in considerations of procedural unfairness, violating Article 6, and the protections it extends to individuals, whose civil rights are being adjudicated. Nowt. 

If Mr Trump had powerful arguments, rooted in EU law or Convention rights, why not air refine them on appeal? Under the Scotland Act, Scottish ministers must abide by EU law and ECHR rights. If they fail to discharge their duties, scorning civil liberties or subverting the common market, they can expect a judicial duffing up. If Mr Trump could find any persuasive, effective arguments, you can bet your last shilling that he would have made them. But he didn't. 

If you hope to toddle off to visit the European Court of Human Rights in Strasbourg, or to pay a visit the European Court of Justice in Luxembourg, you'd expect all of Trump's talented lawyers to be able to come up with some scrap of EU law or ECHR decision to support their case before now. Something. Anything. And after an initial, half-hearted effort to shoe-horn in ECHR rights, they haven't got a sausage. And what's worse for Mr Trump: the European Convention requires its applicants to exhaust effective domestic remedies. If your problem can be fixed by the legal authorities in Latvia, or Spain, or Sweden, or Scotland, Strasbourg isn't interested. Application junked. It is impossible to see how any Trumpish petition to the European Court of Human Rights could survive this test.

The idea that he is off the the Court of Justice of the European Union is even more comical. The ECJ is accessible to individuals only in very narrowly circumscribed circumstances. Even if Trump had an arguable EU law point, which he doesn't, he has no basis whatever to bring Scottish Ministers before EU judges now. It is just pseudo-legal windbaggery.

It is almost as if Trump's new threats and legal menaces are just another eruption from a posturing gasbag, struggling to reconcile himself to a reality in which nobody gives a fig for his preferences. Heaven forfend. We're kidding ourselves on if we take any of this seriously. He had his legal shot. Judges listenened politely to his arguments. He blew it. Case closed. 

11 December 2015

Ian Bell

Term is over, teaching done, the sun is shining and the rain falling. But there's a shard of ice in this morning, in the news that Ian Bell - redoubtable voice he was - has died. As Bella says, his writing "gave a rhythm to the week." He was constant, smart, and smiting, sometimes cantankerous but always idiosyncratic in the best sense of the term. I struggle to remember a time reading Scottish newspapers, when Ian's insistent, dryly-humourous prose did not feature. Throughout my adult life, he has been there. 

A column like Ian's was a sustained engagement with another person's humanity. Across months and years. With their preoccupations and their inclinations, their sympathies and antipathies, their blind-spots and the things they see with a penetrating clarity all of their own. I'm reminded today of this verse from one of my favourite poems by Gerard Manley Hopkins, As Kingfishers Catch Fire:

Each mortal thing does one thing and the same:

Deals out that being indoors each one dwells;

Selves — goes itself; myself it speaks and spells,

Crying What I do is me: for that I came.

Selves is absolutely right. Ian spun a life from words. No doubt elements of his personality, his feelings, himself remain elusive. Writers always reserve something of themselves. That's as it should be. But many, many people will be stricken by today's news. People like me, who never met him, yet nevertheless felt a keen sense of a whole personality, won over months, column by column. We worked our way back from the ink, to the hand, to the man. And we can only be heartsick today. 

9 December 2015

No vindication here. Only survival.

"We had no concerns about the credibility and reliability of the witnesses, with one exception." A teller of "blatant" lies. "Unimpressive," his behaviour demonstrating "a lack of candour", "at best disingenuous, at worst evasive and self-serving" in his actions. These are not descriptions of a man vindicated. But the conclusion cannot be avoided: today is a good day for Alistair Carmichael. He survives. The thread which held the sword over his head since May's general election has finally snapped -- and he has dodged the falling blade. But only just. By a hair's breadth. 

At the outset of the case, many scoffed that the action was doomed, a baseless, tissue-paper thin witch hunt that the courts would junk at the first available opportunity. Many of these prophets will feel vindicated in their cynicism today, but they are mistaken. Against all prophecies to the contrary, the petitioners scored point after legal point, persuading Lord Matthews and Lady Paton that this wasn't a tenuous frolick - or a pop-eyed interpretation of the Representation of the People Act - but a serious, arguable challenge, well-founded in law.

They persuaded the court that the penalties of election law should not only strike those who blacken the characters of others, but in principle, can be used to hold politicians to account for whitewashing their past behaviour. They successfully rebutted, too, Carmichael's argument that section 106 couldn't apply to lies candidates might be tempted to tell about their own "personal character and conduct." 

Rejecting Carmichael's evidence as lacking credibility and reliability, the judges also concluded that the northern isles' MP's lies were motivated by his tough election in Orkney and Shetland. Lady Paton writes: "the inescapable inference, in our opinion, is that if the SNP became a less attractive prospect, the first respondent’s chances of a comfortable majority in what had become a “two-horse race” in Orkney and Shetland would be enhanced," holding that she was "satisfied beyond reasonable doubt that the false statement of fact was made for the purpose of affecting (positively) the return of the first respondent as a Liberal Democrat in the constituency of Orkney and Shetland." A strange kind of vindication to be trumpeting from the lawns of Parliament Square, you might well think. 

But the petitioners' case stumbled on the question of proof. Was it proved to the criminal standard, beyond a reasonable doubt, that Carmichael's lies had "related to his personal character or conduct"? The key paragraphs are [57] to [59] of the determination:

[57] If a candidate, in the course of an election campaign, made a false statement to the effect that he had “never been convicted of forgery/bribery/extortion” (when in fact he had been so convicted), it is likely that we would be persuaded that the words amounted to a false statement “in relation to [his] personal character or conduct”. Again, if a candidate made a false statement that he “would never be involved in any type of fraudulent or dishonest financial dealing” (when in fact he had), it is likely that we would be similarly persuaded. 
Bringing matters closer to the present case, if a candidate made a false statement that he “would never leak an internal confidential memo, no matter how helpful that might be to his party, as he regarded the practice of leaking confidential information as dishonest and morally reprehensible (all the more so if the information was inaccurate), and he personally would not stoop to such tactics”, when in fact that candidate had leaked an internal confidential memo containing material which was inaccurate and highly damaging to an opponent, we would be likely to conclude that the candidate had given a false statement “in relation to [his] personal character or conduct”, because he would be falsely holding himself out as being of such a standard of honesty, honour, trustworthiness and integrity that, in contrast with what others in Westminster might do, he would never be involved in such a leaking exercise. 

[58] In the present case, when speaking to the Channel 4 interviewer, the first respondent did not make such an express statement about his personal character or conduct. He did not, for example, describe himself as a trustworthy, straightforward, and honourable individual who would not be involved in any leak, far less an inaccurate leak. His constituents might, as a result of their own experience of him as their MP over the past 14 years, have formed their own view about his character and conduct, and might have thought that he was indeed of such character that his code of conduct would not permit him to be involved in such a leak. 
They would, of course, be entitled to that view. But on 5 April 2015 in the Channel 4 interview, the first respondent did not expressly make a false statement to the effect that his personal character and conduct was such that he would never be involved in a leaking exercise. What he said was a blatant but simple lie about his lack of awareness of one particular leak. We accept that the lie was intended to imply his non-involvement in that leak. What is less clear, however, is whether his lie can be construed as proof beyond reasonable doubt that he was making a false statement about himself to the effect that he was someone who was upright, honourable, trustworthy, and straightforward, and therefore would not be involved in the leak. 
[59] On this matter, we are left with a reasonable doubt. That doubt is whether the false statement was a general one in relation to his personal character or conduct, or whether it was more specific and limited to a false statement that he was not involved in that particular leak. Put another way, insofar as this issue is a legal one, or rather a question of mixed fact and law, we are not persuaded that the false statement proved to have been made was in relation to anything other than the first respondent’s awareness (or lack of awareness) of a political machination. Accordingly we are not satisfied beyond reasonable doubt that the words used by the first respondent amounted to a “false statement of fact in relation to [his] personal character or conduct.”

The Court's most critical observations on the former Secretary of State's conduct are reserved for how he comported himself during the Cabinet Office leak enquiry. 

[69] In evidence, the first respondent gave the impression that the timing of his admission was purely as a result of the rate of progress of the Cabinet Office inquiry. In our opinion however, the first respondent’s approach to the inquiry was at best disingenuous, at worst evasive and self-serving. We consider that he could and should have been straightforward and candid in his response to the inquiry. 
That would have been likely to reveal his involvement in the leak at some time prior to the election, so that his constituents, when voting, would have been “in full possession of the facts during the election” (in the third petitioner’s words, transcript 9 November 2015 page 20). It is our opinion that his failure to be straightforward and candid with the inquiry resulted from his hope that he would not be identified as being involved in the leak – preferably not identified at all, but at least not identified until after the election on 7 May 2015, as otherwise his chances of electoral success might be prejudicially affected. 
[70] On the evidence, the subsequent revelation of what could be seen as a deliberate “cover-up” by the first respondent very much enhanced the shock, outrage and upset felt by his constituents when the inquiry published its results on 22 May 2015, a fortnight after the election. We refer to the comments of the third petitioner and the Independent Highlands and Islands MSP, quoted in paragraphs [37] and [38] above. 
Ultimately however the first respondent’s unimpressive response to the inquiry, although showing him in a bad light, and resulting in his constituents being initially misled and then justifiably shocked and dismayed on discovering that they had been so misled, cannot alter our conclusion that section 106 does not, on a proper application of the law to the facts proved, apply in this case.

A victory for Carmichael, then, and uncertain times for the four petitioners who now face the prospect of a very substantial legal bill. But no vindication here. Only survival.

7 December 2015

No evidence Harry Clarke "ought to have known he was not fit to drive"

This afternoon, Sheriff John Beckett published his determination in the Glasgow bin lorry crash fatal accident inquiry. Judges Scotland have made this shorter summary available. Sheriff Beckett's full conclusions and recommendations can be read here.  The determination is a lengthy and careful, and the various parties to the case are already recording their reactions in the media.

There are lessons from a range of institutions here, from the DVLA, to Glasgow City Council, to First Bus, to local authorities more generally. The initial reaction to the determination in the media has, understandably, focused on the Sheriff's eminently justified conclusion that Harry Clarke lied, and lied, and lied, to doctors, to his employers, to the DVLA. This much we knew.

But Sheriff Beckett also has important things to say about the case against Harry Clarke, and the argument that he ought to have been prosecuted for homicide or some other serious offence. I just propose quickly to pick out a couple of details now. This argument has been heard in pubs, around family dinner tables, and in taxi cabs across the country. I've had it myself several times, since the accident took place and the fatal accident inquiry began. Usually, it goes something like this. 

But he knew about it. He knew he was sick. Harry Clarke knew he fainted back in 2010. He knew he might pass out again. And what did he do? He lied. He knew he might pass out at the wheel. He knew he could injure people. But I suppose he didn't give a damn. He drove that tank around anyway, putting people's lives at risk, killing six people because of his selfishness and his negligence. If he hadn't lied, he wouldn't have been driving through George Square on that day. Throw the book at him. It is murder. Give him life.

As Sheriff Beckett's determination today makes crystal clear, several of the assumptions made in the popular indictment against Harry Clarke are simply mistaken. About what he knew. About the nature of his medical condition. About the predictability of the attack. About the impact which disclosing his condition would have had on Clarke's heavy goods licence. First, on foreseeability, these are the critical passages: 

[371] Whilst account has to be taken of Mr Clarke concealing the events of 7 April 2010, there is no evidence that any doctor told him prior to 22 December 2014 that he had a susceptibility to episodes of neurocardiogenic syncope, let alone a vasovagal syndrome. 
[372] Dr Rutherford’s opinion might lend some support to this submission, but I did not find his views persuasive where they were in conflict with the cardiologists. The opinions of Professor Rankin and Dr Boon do not offer much support for any suggestion that Mr Clarke ought to have known by this stage that he was not fit to drive for a living. A succession of doctors, including GPs, had not given him any indication on his D4 examinations that he ought not to drive group 2 vehicles.  

Short version? On the evidence, Sheriff Beckett concluded that it was not foreseeable to Harry Clarke that he was at ongoing risk of another fainting incident behind the wheel. His relationships with his doctors was characterised by dishonesty and partial and non-disclosure of information. But the idea that Clarke malevolently - or recklessly - disregarded clear medical advice that he was a risk to the public in December 2014 has no basis in evidence whatever. 

The second key claim made by those who want the book thrown at Clarke is that "but for his dishonesty, Harry Clarke wouldn't have been driving that day." The assumption here is that the  full and honest disclosure of Clarke's condition would have taken him off the road for good. Today's determination discards this claim too, as fundamentally mistaken. Clarke's last fainting episode took place in 2010, nearly five years before the crash of December 2014. The judge concludes today that:

[376] The weight of the evidence suggests that had there been a revocation of 3 or 12 months following April 2010, Mr Clarke’s licence would have been returned to him thereafter by DVLA
[377] With hindsight it may be seen as possible that the spells of dizziness which gave rise to the medical note for 20 September 2013 could have signalled to Mr Clarke that he retained a susceptibility to faint, but there is no direct evidence that he did interpret his symptoms in that way at this time. Professor Rankin would not have viewed the matter in that way, but Dr Boon may well have done. Dizziness had featured in the past, significantly so leading up to 1994, but that was 19 years previously. Mr Clarke was told to stop driving for a few days in 2003 but the impression there is that drops being given to reduce wax in his ears reduced the extent to which he was suffering from dizziness. Dizziness was not mentioned following 7 April 2010. 
There is no indication that he was advised in September 2013 that he should not be driving. It is possible that perhaps he would have been given such advice had the full extent of what happened on 7 April 2010 been disclosed by him to his GP, but there is no real foundation for that in the evidence. The significance of 20 September 2013 was not explored in evidence in this way and my findings must be based on the evidence, and reasonable inferences from it, not speculation.

There is blame here, without question. Clarke's dishonesty was disreputable. The turn of events was monstrous. It has caused measureless grief for those involved. More could have been done and should have been done to manage the dreadful might of these heavy vehicles, and the risk to the public that they represent. You can only sympathise with those who have been injured by this case, and empathise with the rage and the grief they feel for the lives that will now go unlived, the laughter unlaughed, for the missing smiles and lost embraces. 

Yet there is nothing in today's judgment which causes me to revise my conclusion on the case. Quite the opposite. As I argued in the Times a month ago, the law must do its duty, without fear or favour. It must proceed on the basis of evidence, not of vengeance. When you set aside the understandable anger at this man, when you set aside the many misconceptions which dominated the debate about his culpability, what are you left with? A fraud, yes. A series of minor frauds. And a ghastly accident with tragic consequences. But nothing more. 

5 December 2015

Kezia Dugdale: no time for a novice?

The admirable John Harris has a piece on Labour in Scotland in the Guardian this morning: "'There's a lot I'm still learning': can Kezia Dugdale resurrect Scottish Labour?" The new Scottish Labour leader has been posted missing since Jeremy Corbyn took over last September, and internecine conflicts on more or less everything broke out in the parliamentary party. The chain reaction of Maoist stunts, bad appointments and feeble speeches has left Kezia gasping for political air, with only five months to go until the next Holyrood election. 

29% of the Scottish public still can't place her. With the head office in turmoil, and the board at war, nobody gives a damn about a branch office pootering on under the leadership of a pleasant but ineffective regional manager. Oldham may have been stoutly defended, but Corbyn's unfocused leadership is doing precisely nothing for his comrades further north. John Harris met Dugdale after First Minister's question time in Holyrood, securing his headline quote from the mildest of mild enquiries about her encounters with Nicola Sturgeon. 

I ask how it went, and she pulls a half-grimace. “It kind of puts to bed any suggestion that how we do politics in the Scottish parliament is vastly different from Westminster,” she says. “It’s still very combative – quite fiery exchanges.” 
Is that to say that when things are like they were today, Dugdale doesn’t like it? 
“Erm… I don’t enjoy it. I endure it. I recognise it’s part of my job, but that’s 10 minutes of my week.” 
Does she think Sturgeon enjoys it? 
“Erm… yeah, I think she probably does. She’s 16 years a politician. It’s taken her a long time to build up the skills and the credibility, and polish the talents that she clearly has. She’s at the top of her game, and this is a chance to show those skills off.” 
And how long does Dugdale give herself before she gets to that point? 
“Look, I’m acutely aware that I’ve just been an MSP for four and a bit years,” she says. “You know? I’m 34 years old. There’s a lot about life, a lot about politics, that I’m still learning. A lot of the things I’m doing as leader, I’m doing for the first time. But there are things I do know a lot about, and there are lots of things I’m incredibly passionate about: education, tackling poverty, female inequality. And on that stuff I’m 100% on my game. But I think it probably does take a wee bit of a while. She’s had 12 years more than I have.”

My first reaction? What a nice, unguarded way Kezia has about her, generous about her opponents with no attempt to gloss or conceal her inexperience or the challenges of her new role. From the outside peering in, it has looked like a steep learning curve. And here we have it confirmed, in Kezia's own words. There's no swagger here, no assertive declarations of unshakeable confidence. No Apprentice style windbaggery. No "I will be First Minister." No "I'm ready, John. I'm ready to lead." 

Compare and contrast with Dugdale's immediate predecessor. "Fighting" Jim Murphy proclaimed from the get-go that he was “applying for the job of First Minister.” He strained every sinew to give the impression of being a scrappy and aggressive alpha. It is a good and sweet thing to wear elderly soccer shorts for your country. By his perished elastic shall ye know him, the chosen one. He fears not the Nats nor the dark of the night. Our knight and deliverer. A runner. A striker. Amen.

Dugdale is - thankfully - above ludicrous escapades of this kind. She is self-aware. She doesn't bullshit. She doesn't radiate that toxic sense of complacency and entitlement which for so long characterised Labour politics in this country. Dugdale's unstudied candour may make you think better of her. But with just months to go until the Holyrood election, with just months left to persuade the Scottish people that Sturgeon should be evicted from Bute House -- isn't this just a little naive? The public are a capricious lot. Honesty, yes. A virtue. A bit of humility too goes far. And self-doubt, in healthy quantities, is essential. But you also need true grit. Steadfastness. Guts. Naïfs and novices need not apply. 

3 December 2015

Gove: human rights "neither reserved nor devolved"

Does Westminster need Holyrood's consent to repeal the Human Rights Act? This blog has been asking this important question since the general election. In June, Deputy Leader of the House of Commons, Therese Coffey, told Joanna Cherry that human rights are "a reserved for the UK Parliament and not a devolved matter," implying that consent for repeal was unnecessary. Later that month, justice minister Michael Gove reiterated this view, telling MPs that "in this United Kingdom Parliament, human rights are a reserved matter."

But there's a problem. If you rummage through the Scotland Act, you won't find human rights on the list of reserved matters. Indeed, Schedule 5 makes it crystal clear that human rights do fall within Holyrood's legislative competence. But what about the Human Rights Act itself? Schedule 4 of the Scotland Act protects the Human Rights Act from modification, amendment or repeal by Holyrood. 

This leaves us in a funny situation. Human rights aren't reserved to Westminster, but only Westminster can amend or repeal the Human Rights Act. Here's where the Sewel convention comes in. This rule of constitutional morality says that if Westminster wants to legislate about devolved matters, or wish to expand or curtail the powers of the Scottish Parliament, they must seek the consent of MSPs before doing so. The UK parliament remains sovereign. The Lords and Commons could ram through any changes they like over the objections of MSPs. But the convention is -- they won't. The UK government is sufficiently committed to this convention to transpose a version of it into the Scotland Bill. It cannot lightly be dispensed with.

So how does Sewel apply to HRA repeal? Should it be treated as a devolved matter, requiring consent - or a reserved matter, requiring none? Yesterday brought some interesting but largely overlooked developments on this score. Michael Gove appeared before the House of Lords Constitutional Affairs Committee. Questioned about the UK government's repeal proposals, the former Lord President of the Court of Session - Lord Cullen - put the question to Gove directly:
Cullen: "Is it accepted that the repeal of the Human Rights Act and the creation of a Bill of Rights Act would give rise to the application of the Sewel convention?" 
Reverse-ferreting from his earlier, much more bullish pronouncements in the Commons, Gove wibbled:
Gove: "I think: its an open question. And the reason why I hestitate to pronounce definitively is that we'd have to see what was in any given Bill in order to be absolutely certain as to whether or not a legislative consent motion might be required in any of the devolved legislatures."
Lord Cullen pressed on, as it became increasingly clear that Gove and his department still haven't fully contemplated the devolved implications of their repeal policy. In June, he thundered that "in this United Kingdom Parliament, human rights are a reserved matter." And in December? Wibble wibble.
Cullen: "Taking the matter at its most basic, legislation in regards to human rights is a matter which is not reserved, is that right?" 
Gove: "It is neither reserved nor devolved." 
Cullen: "So it is open to the Scottish Parliament to make its own provision for human rights, if it so chooses?" 
Gove: "The -- My understanding of the constitutional legal position is that only the United Kingdom parliament can amend the Human Rights Act. But it is the case that the application of human rights, by definition, differs in Scotland, as distinct from the other parts of the United Kingdom, because Scottish courts will interpret those rights consistent with Scots law and Scots legal tradition." 
Cullen: "What I'm driving at is, would the creation of a new Bill of Rights Act be something which would give rise to the Sewel convention, because it would enter an area where the Scottish Parliament itself could legislate?" 
Gove: "Well, I don't believe that the Scottish Parliament -- I, you know, stand to be corrected -- I don't believe the Scottish Parliament can legislate to fundamentally alter the rights architecture which the Human Rights Act has put in place. I think that is a matter for the United Kingdom parliament, as I understand it."
Hardly the most trenchant or confident analysis, you might well think. Reading his answers in the light of my opening observations, you can see what Gove has done here. He's right to this extent: Holyrood can't amend the Human Rights Act because Schedule 4 of the Scotland Act prevents MSPs from doing so. But the Lord Chancellor has precisely no answer to the point put squarely to him by the Scottish judge: human rights are not a reserved matter. The idea of a matter being "neither reserved nor devolved" is a nonsense, a muddle, and a confusion. 

Having airily dismissed the idea just months ago, Gove now concedes that legislative consent may be necessary, depending on the detail of his British Bill. The admission is significant enough on its own, but Gove's quibbling reticence on whether Holyrood will have to give the UK administration's Bill of Rights the nod is stonewalling, pure and simple. It is next to impossible to imagine any version of any British Bill of Rights which would not impact on Holyrood's legislative competence, and accordingly, engage Sewel

But Gove is a politician. You find playing for time in the beginner's kit. And when you find yourself lost and confused in public about something so basic? It is all you can really do. But time is running out for the Lord Chancellor. Nicola Sturgeon has already said that "the SNP Government will invite the Scottish Parliament to refuse legislative consent to scrap" the Human Rights Act. The Sewel stramash isn't going away. In his recent Tim Yeo libel judgment, Mr Justice Warby memorably observed in that "when a fish wriggles on a hook, it goes deeper into the mouth and guarantees that the fish will not escape." Eventually, Mr Gove will have to make up his mind: bite or flight. 

26 November 2015

Judge: victim "condoned" and "acquiesced" in her rape

Lord  Carloway, who allowed the appeal.
HM Advocate v. SSM is a case of rape, and a case of the sexual abuse of children. In May this year, SSM was foung guilty by a jury in the High Court in Glasgow of seven charges. These are summarised in the Appeal Court's judgment this afternoon. I caution you. The details are unpleasant. But understanding the facts of the case is critical to contextualise the anonymous  trial judge's remarkable - and in many ways, appalling - commentary upon them. 
[1] ... The first (charge 1) was one of using lewd practices on various occasions against AdM, a boy aged between 9 and 10, in 2007-2008, including handling the boy’s penis, attempting digital penetration of his anus, compelling the boy to masturbate him and oral penetration of the boy with his penis. The second (charge 2) was indecent assault, again on various occasions during the same time period, against the boy in the form of attempted sodomy. The third (charge 7) was using lewd practices on various occasions against TD, a girl aged between 12 and 14, in 2008 to 2010, including digital vaginal penetration, contrary to section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995. 
In relation to the adult complainers, the fourth and fifth (charges 13 and 15) were libels of indecent assault against CD in 2008 to 2010 in the form, first, of one incident of continued penile penetration of the anus after the withdrawal of consent and, secondly, of penile penetration of the anus on various occasions. The sixth (charge 18) involved anal rape of CD on various occasions from 2010 to 2013, contrary to section 1 of the Sexual Offences (Scotland) Act 2009. The seventh (charge 19) was the anal rape of AM, his wife, on one occasion in 2013, contrary to the same statutory provision.

An ugly indictment then. What did the sentencing judge make of it? It is difficult to know where to begin with his commentary on the case. With characteristic understatement, the Appeal Court notes that "in his report, the trial judge has made a number of observations about the sentencing of sexual offences involving both children and adults. Some of these may be regarded as controversial." "Controversial" hardly covers it. In handing down a five year prison sentence, and in explaining his decision to the Appeal Court, the judge made the following observations.

  • Assessing the gravity of the anal rape of AM, "the judge classified the level of criminality and level of harm suffered as “minor”, involving only “a transient sense of violation”. He "considered rape to be a species of aggravated assault and that this incident equated with an assault to injury which might have been prosecuted at summary level."
  • He had this to say about the second adult complainer, CD: "CD described an occasion when she had, at the respondent's request, agreed to try anal sex for the first time. This had been on the basis that they would stop if it were painful. It was painful, but the respondent had not stopped when asked to do so. He had had anal sex with her on 3 or 4 occasions without her agreement. None of the anal rapes were reported to the police at the time. They would not have been reported but for the police inquiries. Under reference to Stallard v HM Advocate, the judge refers to CD “condoning” or “acquiescing in” the rapes. He refers to CD freely choosing to continue to live with the respondent after the rapes had occurred. This he regarded as such “powerful mitigation” that he might have considered an admonition as an option, had the convictions involving CD stood alone."
  • Explaining the fairly modest sentences handed down for the offences against the children, the judge indicated that he'd had regard to his "impression of the effect of the offending on the children" and "of the effect that more severe punishment might possibly have, taking into account the guilt that child sex abuse survivors are often said to experience, particularly where family and relationship break-up is involved." As the Appeal Court note, the judge "had no basis for his theories about feelings of guilt in abused children or for reducing any sentence on account of his impression of the robustness of the children." 

But it as paragraph 11 of the Appeal Court's judgment where we really slip into the jurisprudential twilight zone. Condemning the prisoner as a “coward and a bully”, eking out “a benefit-grubbing existence ... sponging off women”, the trial judge decided to share his thoughts with the Appeal Court on a diverse range of considerations:

  • In relation to the adult complainers, the main thrust of the plea in mitigation was the impact of the offences against the background of general sexual promiscuity. The judge describes the offences as “essentially non-violent relationship rapes”. He reports that juries do not convict of such rapes because, according to “received wisdom”, High Court sentences for such offences are disproportionate. In this context, he challenges the need for all rapes to be tried by jury, given the low conviction rate and the multiple traumatic experiences of complainers in being raped, then subject to: (a) the investigative process, (b) the wait for trial, (c) the cross-examination, (d) a possible acquittal; and (e) a return to the community with the stigma of having been disbelieved.
  • The judge points to the spectrum of seriousness in rape sentencing as illustrated by Scottish practice and in the England and Wales Definitive Guideline. He asks whether there is a lower custodial limit for rape sentences. He speculates that, but for the existence of 2 adult complainers and the libel of anal (as distinct from vaginal) penetration, no convictions would have followed. However, whilst considering that the rapes were “at the lower end of the seriousness scale” he reports that he did not regard the respondent's relationships with the complainers as mitigatory per se.

But Lords Carloway, Matthews and Bracadale were having none of it:
"The trial judge has also made some pithy remarks about prosecution policy, jury reaction and related matters. It may be that others may share some of his thoughts, but many will undoubtedly not. The short point is that, whatever a judge’s own views may be, he must sentence on the basis of the crimes of which the respondent has been convicted, albeit in the contexts in which these crimes have been committed, in light of current Scottish sentencing principles and practice."
Concluding that SSM "clearly poses a threat of serious harm to the public" and "notably women with young children", the Appeal Court quashed the five year custodial sentence and substituted an eight year prison term and four years of supervision after release in the interests of public safety. It is remarkable - quite remarkable - that any trial judge would treat a note of appeal against sentence as an opportunity for a general meditation on such diverse topics as prosecution policy and jury reactions to complainers. A jury having returned a guilty verdict in respect of all of these charges, it is remarkable that a trial judge would speculate on what might - or ought - to have happened if the indictment had alleged multiple sexual assaults of a different character. 

But it is the attitudes disclosed in the judge's note which are most disturbing. The Appeal Court's judgment relates only sections of this document. But the sections related stand starkly at odds with the hard-won modern understanding that rape is a distinctive and serious wrong. Lord Carloway summarises it well: 
"Rape may often, if not always, be a crime of violence, but it is not an aggravated assault. It is a separate crime involving the violation of a person’s sexual integrity."
The idea that a victim "condoned" their own rape, or that they "acquiesced" in it - the idea that the "guilt" of victims of child abuse weighs against a more severe penalty being imposed on their abuser - I'm stunned that any judge of the High Court would even contemplate these views, never mind setting them down in writing for senior colleagues, reviewing their sentencing decision.  Just stunned. Wrongheaded, outdated, and wrong, wrong, wrong.

22 November 2015

Glasgow: Forgetting slavery?

"Don't keep your head down. Look up." Whether you're trudging through Glasgow in the summer sleet, or the winter snow, the local sometimes needs reminded to contemplate the grandeur of the place. Edinburgh's skyline sucks the air out of you, a jagged man-made silhouette of spikes and spires. Glasgow's mountainous legacy of wealth is more easily overlooked. 

Its richly appointed statues stand sentinel over the bustling streets, peering down from formidable stone piles and Corinthian columns. Folk only rarely seem to notice the bombast and effrontery of the city chambers. We're more taken with the Duke of Wellington's famous headgear than the tobacco lord's townhouse which now hosts the Gallery of Modern Art. Familiarity breeds - not quite contempt - but a curious kind of taken-for-grantedness. I've been a more attentive reader of the many towns I've visited as a tourist than the fabric of the city in which I now live. I suspect I'm not alone. 

Kevin McKenna has an interesting piece in the Observer this morning, arguing "we Scots must face up to our slave trading past." This passage particularly struck me:

Well, a lot more of us ought to know now and we ought also to be demanding that we quietly take down the grotesque Merchant City signage and simply desist from using the term. And while we’re at it, we can also start looking at more appropriate names for Jamaica Street, Tobago Street and the Kingston Bridge, as well as the other roads and avenues that bear the imprint of evil. After all, we rightly celebrated renaming St George’s Place as Nelson Mandela Place. Of course there is a body of resentment over “reopening old wounds” and “raking up the past”.

I squirmed with discomfort here. Wouldn't renaming these streets represent only another erasure? Don't these streets quietly avow the past? I have a good deal of sympathy with Kevin's basic thesis. Scotland's role in legally-sanctioned kidnap and forced labour still feels marginalised in the public memory, not least in Glasgow. This can amount to what Stephen Mullen has described as a "myth of detachment and non-involvement" in slavery: "it wisnae me."

My secondary education contained next to no Scottish history. Needless to say, slavery and colonialism also went almost entirely unmentioned. In law school, I went on to study how Roman law was used to devise the early-modern duties and responsibilities and master and slave. I read the famous (1788) case of Joseph Knight, in which the Court of Session declared that Scots law did not recognise the institution of slavery. But overall? My understanding of this city's and this country's involvement in the exploitation of slaves remains sketchy, impressionistic. Again, I suspect I'm not alone. 

All that rum and cotton, that blood and toil and tobacco and molasses, has settled mutely into opulent stone I toddle past, all too often, bovine and unthinking. Jamaica Street doesn't (only) bear the imprint of the evil of slavery, but the imprint of our history. That history may not be inscribed on our memories. But these echoes - these nudges - preside over our streets, for those with eyes to see and ears to hear. They ensure, every day, that Glaswegians have no excuse for failing to "face up to our slave trading past." 

Virginia and Antigua, Buchanan and Ingram, these names are indicting, they're our history, and they should stay. 

17 November 2015

Critical friends

Whenever media commentators talk about SNP supporters or politicians being uncritical drones, I always assume they either have few Nationalist friends, or spend too much time on Twitter. In July, Iain Martin argued the party was turning into a "sinister personality cult". Today, Stephen Daisley writes that "the nationalist movement desperately needs critical thinking right now. The SNP megachurch brooks no heresy. MPs and MSPs genuflect to the leadership on all questions of doctrine." 

Now, I like critical thinking. A confident Scottish Government should welcome it. The best laid plans of mice, men, and governments - gang aft agley. Good intentions generate perverse consequences. Political discourse in Scotland remains oddly zero sum, reluctant to grapple with the fact that to privilege some values, others must be sacrificed. All of this needs to be exposed. All of this needs to be examined with more confidence, and less gormless snark. As one of life's natural heretics, and as an SNP supporter, I wish Scottish life had a more confident, more carefree public sphere in which ideas could be batted back and forth with gayer abandon. 

I wish our politicians - and yes, our academics too - were a bit less frit about putting their heads above the parapet. I wish more of them would brave the - very modest - storms and floods of daring to have an opinion in public. But the same press that frets about the Nationalist cyberlegion consistently pathologises political dissent. I can entirely understand the journalistic incentives behind this. Splits, divides and rebellions make for much more dramatic copy -- but the political media does a remarkable amount to foster and perpetuate the anxious, spinning, on-message culture some of its outriders purport to despise. So much, so banal. 

But sometimes I wonder if the indiscreet, blood-drenched tribalism of the Scottish Labour Party has spoilt our journalists and broadcasters. In the absence of self-destructive leaks, or internecine, anonymous intra-party briefings, it's assumed that Nationalists are uncritical moonies; that we've drunk the Kool Aid and have lost our wits. I'm yet to meet the SNP supporter with a brain who doesn't have parts of the party's platform and record they have their doubts about. Such is the fate of participating in a mass-membership party. Compromises are stuck. You won't approve of everything which finds its way into the policy platform. Unprecedented scenes, etc, etc.

Take your pick. Justice, health, education, Nato, international military interventions, Europe - I'm yet to meet the SNP sympathiser with their wits about them who doesn't harbour independent views on the SNP's government's record, and some question-marks and black-marks against it. Some of the most interesting and dramatic party barneys have never been reported. Can you find uncritical, unreflective diehards? Of course you can. But Stephen Daisley is conflating the absence of critical views with the absence of any inclination to share them with the Daily Record. "The war of all against all" may be a cherished tradition in Labour Party management, and a boon to the harried hack with a deadline to file, but it has little to recommend it. 

These themes are back in the media today, after former Salmond SPAD Alex Bell published a fiercely critical piece on the economic arguments for independence on his new platform, The Rattle. The economic basis of the article has been criticised. But bracketing these questions, my own objection to Alex's piece is more basic. Where is the emotional intelligence? The overt purpose of the piece is to call on SNP sympathisers to look critically at the government's strategy, both in terms of devolved policy, and to reflect on the sometimes harsh lessons of 2014, to re-examine the arguments uncritically and unsentimentally, unencumbered by attachment to the failures of the past, courageously and without illusions. Grand. A fine ambition. I agree. 

But you will never persuade anyone of anything by opening with the gambit, "you are an idiot and all your cherished viewpoints are self-evidently false." Nobody ever even earned a hearing with such a gambit. Hard truths must be communicated softly. Persuasion is almost always better achieved by seduction rather than conquest. Given the purpose of this intervention - and I don't doubt Alex's intentions are good and constructive in this respect - it is remarkable that he chose to pitch his criticisms in this way. His rhetoric alone green-lights SNP sympathisers simply to ignore its points, fair and unfair, compelling and misplaced though they may be. Which is, presumably, exactly the opposite of what was intended.

The "cocaine of the politically active, fun to join in but dulling the senses, jabbering on at a hundred words per minute while disconnected from self awareness"? Consciously or unconsciously, deliberately or quite by accident, alienating condescension leaks from every clause. Alex writes as if Daisleyvision was true, as if he is addressing biddable numpties without a skeptical spark in their heads. This is persuasion with a flamethrower. And it is disastrously ineffective. 

Invective is fun. Invective can be gratifying. But from someone trying to persuade other people, from someone trying to open minds to challenging questions rather than slamming them tight shut? It is disastrous, just disastrous. The unempathetic way in which Alex has couched his case ensures it cannot now receive a fair hearing or fair scrutiny. He has given anybody reluctant to address the issues he has raised every excuse to shrug off his argument uncritically. The article's lack of emotional intelligence blunts, rather than sharpens, his challenging case.  If this is persuasion, and an honest attempt to coax folk into a more self-critical stance, it has all the subtlety of a mashie niblick between the eyeballs. Which is a shame, as both Alex and Stephen are right to this extent: the SNP really does need its critical friends. 

14 November 2015

Compassion, lighting up the human heart...

This semester, I have been teaching jurisprudence, taking our law students through centuries of ideas about justice and mercy, of morality and law. It has been a fascinating - and sometimes challenging - process, reacquainting me with thinkers whose work I last considered in earnest some years ago. Just this week, we were talking about states of emergency, and the suspension of law in the name of security. I had no idea, when I took to my feet on Tuesday, that the end of the week would again make our discussion so bloodily, so horrifically concrete. 

There will be a raised voices today, arguments, anger and sorrow, for Beirut, and for Paris. I don't propose to add my half-formed thoughts and reactions to the multitude. But I did want to share this passage with you, which has been bouncing around my skull this morning. It is from Adam Smith's (1759) Theory of Moral Sentiments. Smith argued that fellow-feeling is the root of our ethics. He returns - again and again - to the figure of the sympathetic spectator, who participates in the joys, and the sufferings, of others.

But Smith recognises that bystanders, even empathetic bystanders, do not fully enter into the anguish or the animation of others. We feel - but we feel at a lower pitch, lower and lower as social distance multiplies. More proximate calamities can strike us with overwhelming force, remote crimes more remotely. Smith's point is not a cynical one. He is not defending the idea that we should be unmoved by the sufferings of far-away countries, or of people of whom we know little. Far from it.  

But in a world where it has become easier and easier to become a willing - or unwilling - spectator to the evils and calamities and wickedness of humanity, in a world demanding sympathy and compassion, this sometimes neglected Scottish philosopher still has something to teach us all. 

In the same manner, to the selfish and original passions of human nature, the loss or gain of a very small interest of our own, appears to be of vastly more importance, excites a much more passionate joy or sorrow, a much more ardent desire or aversion, than the greatest concern of another with whom we have no particular connexion. His interests, as long as they are surveyed from this station, can never be put into the balance with our own, can never restrain us from doing. whatever may tend to promote our own, how ruinous soever to him. Before we can make any proper comparison of those opposite interests, we must change our position. 
We must view them, neither from our own place nor yet from his, neither with our own eyes nor yet with his, but from the place and with the eyes of a third person, who has no particular connexion with either, and who judges with impartiality between us. Here, too, habit and experience have taught us to do this so easily and so readily, that we are scarce sensible that we do it; and it requires, in this case too, some degree of reflection, and even of philosophy, to convince us, how little interest we should take in the greatest concerns of our neighbour, how little we should be affected by whatever relates to him, if the sense of propriety and justice did not correct the otherwise natural inequality of our sentiments. 
Let us suppose that the great empire of China, with all its myriads of inhabitants, was suddenly swallowed up by an earthquake, and let us consider how a man of humanity in Europe, who had no sort of connexion with that part of the world, would be affected upon receiving intelligence of this dreadful calamity. He would, I imagine, first of all, express very strongly his sorrow for the misfortune of that unhappy people, he would make many melancholy reflections upon the precariousness of human life, and the vanity of all the labours of man, which could thus be annihilated in a moment. 
He would too, perhaps, if he was a man of speculation, enter into many reasonings concerning the effects which this disaster might produce upon the commerce of Europe, and the trade and business of the world in general. And when all this fine philosophy was over, when all these humane sentiments had been once fairly expressed, he would pursue his business or his pleasure, take his repose or his diversion, with the same ease and tranquillity, as if no such accident had happened. 
The most frivolous disaster which could befal himself would occasion a more real disturbance. If he was to lose his little finger to-morrow, he would not sleep to-night; but, provided he never saw them, he will snore with the most profound security over the ruin of a hundred millions of his brethren, and the destruction of that immense multitude seems plainly an object less interesting to him, than this paltry misfortune of his own. 
To prevent, therefore, this paltry misfortune to himself, would a man of humanity be willing to sacrifice the lives of a hundred millions of his brethren, provided he had never seen them? Human nature startles with horror at the thought, and the world, in its greatest depravity and corruption, never produced such a villain as could be capable of entertaining it. 
But what makes this difference? When our passive feelings are almost always so sordid and so selfish, how comes it that our active principles should often be so generous and so noble? When we are always so much more deeply affected by whatever concerns ourselves, than by whatever concerns other men; what is it which prompts the generous, upon all occasions, and the mean upon many, to sacrifice their own interests to the greater interests of others? 
It is not the soft power of humanity, it is not that feeble spark of benevolence which Nature has lighted up in the human heart, that is thus capable of counteracting the strongest impulses of self-love. It is a stronger power, a more forcible motive, which exerts itself upon such occasions. It is reason, principle, conscience, the inhabitant of the breast, the man within, the great judge and arbiter of our conduct. 
It is he who, whenever we are about to act so as to affect the happiness of others, calls to us, with a voice capable of astonishing the most presumptuous of our passions, that we are but one of the multitude, in no respect better than any other in it; and that when we prefer ourselves so shamefully and so blindly to others, we become the proper objects of resentment, abhorrence, and execration. It is from him only that we learn the real littleness of ourselves, and of whatever relates to ourselves, and the natural misrepresentations of self-love can be corrected only by the eye of this impartial spectator. 
It is he who shows us the propriety of generosity and the deformity of injustice; the propriety of resigning the greatest interests of our own, for the yet greater interests of others, and the deformity of doing the smallest injury to another, in order to obtain the greatest benefit to ourselves. It is not the love of our neighbour, it is not the love of mankind, which upon many occasions prompts us to the practice of those divine virtues. It is a stronger love, a more powerful affection, which generally takes place upon such occasions; the love of what is honourable and noble, of the grandeur, and dignity, and superiority of our own characters.  
When the happiness or misery of others depends in any respect upon our conduct, we dare not, as self-love might suggest to us, prefer the interest of one to that of many. The man within immediately calls to us, that we value ourselves too much and other people too little, and that, by doing so, we render ourselves the proper object of the contempt and indignation of our brethren.

12 November 2015

Three days in November

Alistair Carmichael must have had better weeks. For three days, his character has been under the judicial microscope. If Tavish Scott seemed black-affronted by the idea of testifying before the election court, Mr Carmichael's experience must have been altogether more mortifying. The former Secretary of State for Scotland appears to have approached his evidence as a repenting sinner.

Wisely, he didn't try to defend the indefensible. When he was caught in a lie, he owned up to a lie. But where was this candour when Channel 4 came calling? Where was this impulse to disclose the truth, the whole truth, and nothing but the truth, when cabinet office investigators chapped on his door? "Now I'm under oath", he quipped to Lady Paton and Lord Matthews, explaining why he should now be treated as a credible and reliable witness. Tommy Sheridan's much-merited fate remains a salutary example to all witnesses. Good.

But the nature of the evidence Carmichael gave makes it extremely difficult to discriminate between truth and falsehood, candour and calculation. How can you tell what was in a man's head? How can you open up a window into his soul? Ultimately, it will come down to a question of trust. And as Jonathan Mitchell argued yesterday, Mr Carmichael's copy-book is more than blotted. His inkpot overfloweth.

The National asked me to write a wee comment or two on reports of the proceedings. Other commitments prevented me from toddling over to the Court of Session on Monday and Tuesday, but I was able to catch almost all of the final day yesterday, helpfully televised by STV. Wednesday was full of legal submissions, and brought the case against the former Secretary of State to a close. You can read my thoughts in the paper this morning.  An excerpt: 

"Avizandum! And we’re done. Dismantle the arguments and pack up the papers, slam shut the record and peel off the wigs. Barring an extraordinary appeal on point of law, the People vs Alistair Carmichael is now over. After two days of evidence from six witnesses and a full day of closing arguments from QCs Jonathan Mitchell and Roddy Dunlop, the MP’s fate lies in the hands of Lady Paton and Lord Matthews. In closing the case, they gave little away. Their final decision may be weeks – if not months – away. No harm in the election court taking its good time. The legal issues are knotty, the consequences severe. “Bruiser” Carmichael will never recover his reputation for political sturdiness, but if nothing else, the wait will teach him the virtue of patience. His life now lies in the balance."

You can read the whole article here. On last night's BBC Scotland 2015, there was some confusion about the consequences of all of this. Will the election court have the last word? Can the House of Commons review any decision taken? You'll find the answer in section 144 of the 1983 Act. 

It isn't for the Commons, but for the court to decide whether or not the election is void. MPs won't have to "rule" on Carmichael's fate. If Lady Paton and Lord Matthews decide the Lib Dem is personally guilty of an illegal practice under s.106 of the Act, he's done. Section 156 of the Act makes all this perfectly clear: "if a candidate who had been elected is reported by an election court personally guilty or guilty by his agents of any corrupt or illegal practice his election shall be void."

The role of MPs is limited to putting the sanctions into place, and moving the by-election writ at a suitable juncture. They can't make their own assessments of the merits and demerits of the case against him after the fact. Andrew Nicoll is mistaken about that. But now? Now we wait.

3 November 2015


Halloween's blog had a necessarily negative theme. Some correspondents felt I was being unconstructive in emphasising the limits of Holyrood's powers instead of the opportunities to blunt the impact of the proposed changes to tax credits. Holyrood has no direct authority over tax credits rates and tapers: this we know. If the moneys can be found -- and that is a big if -- some kind of income supplement could be funnelled towards some of those likely to lose out under Chancellor Osborne under the Scotland Bill powers.

But in pledging to "restore" tax credits clawed back by the UK's Tory administration, Kezia Dugdale depicted as fait accompli something which may well prove impossible on legal, cost and administrative grounds. If Dugdale had taken to the stage at her party's Perth Conference, and pledged only to do her darndest to devise a scheme which would mitigate the impact of the proposed cuts as best she was able, I'd have nothing to complain about, bar the funding question.

But she didn't. "Scottish Labour Government will restore the much needed tax credits" she said. Folk - folk on tax credits - listening to Labour's new leader in Scotland will have a lively expectation of a like-for-like, penny-for-penny restoration of their fortunes. Many, perhaps most, will assume that the Scotland Bill makes all this easy, makes all this just a matter of political will. But it doesn't.  

I take the point: exaggerated pessimism about the Scotland Bill powers is not helpful. But neither is the indifference to practical, workmanlike questions which has characterised much of the discussion of Kezia's bold conference move. We shouldn't underestimate the new powers, and overlook an opportunity to good, in the grim determination to see the blackest side of our devolution settlement. We shouldn't hobble ourselves and evade responsibility for what we can and should change. But practicalities matter.

There is nothing social democratic about false hope. There is nothing social democratic about convincing the low paid that Tory tax credit changes are easily and cheaply remedied with a strike of the First Minister's pen. They're not. As I wrote on Saturday, I'm sure folk struggling on low incomes will appreciate whatever help they can get from Holyrood. But I'm also sure that they'd have little patience with politicians making grand, uncosted pledges which are unlikely be honoured, even if Scottish Labour are swept to power in Holyrood in May next year.

"At least Scottish Labour are offering empty promises. Will the SNP match our uncosted pandering?" Where powers lie is not an arid constitutional matter. It isn't unconstructive to point out that achieving - even desirable outcomes - is likely to be difficult, beset by Treasury caprice and penny-pinching and the usual frosty hierarchical relations. I like living in hope as much as the next fellow - more probably - but as slogans go, "where there is a will there is a way" has all the statecraft of Noddy in Toyland. Try convincing the Treasury to exempt our firefighters and police force from VAT. See how far living in hope takes you with David Gauke, coiled like a dragon on his hoard. 

A few questions then, in a constructive spirit. Firstly, how will the entitlements of individuals be established in Kezia's "restoration" scheme? As I outlined at the weekend, George Osborne's tax credit changes involve accelerating the taper and reducing entitlements to tax credits on a much lower threshold. This is a dynamic assessment, varying from year to year. Holyrood can do nothing about this. Tax credits - while they remain - are reserved matters. From an administrative point of how, how does Scottish Labour envisage this will work? What rules will apply? A simplified compensation scheme might be devised - but almost inevitably, it would result in some losses from the tax credit changes not being compensated by a Labour administration. 

Would this live up to the "reversal" of cuts promised? With the best will in the world, it is difficult to see that it could. The more complex the scheme of entitlements, with greater variables, the greater the headache from an administrative point of view. Time, personnel, money, development. At what point does the cost of administrating a new entitlement to mitigate tax credit cuts represent a poor use of public funds, robbing Peter to pay Paul? There must be limits. Even if you are sympathetic in principle to the notion of mitigating tax credits cuts - there is nothing churlish about asking this question.

A hard line cannot be drawn between the desirability of a policy intervention and the cost of its implementation. The two must be part of a sound analysis of whether tax credit mitigation is the best way to use the Scottish Government's limited resources. That is a political judgement, for sure. But we treat Scottish Labour like a child, and not a government in waiting, if we attend only to their good intentions and fail to ask how they will bring the bacon home.

HMRC currently administers tax credits, but they are due to be folded into the universal credit at some point in the as-yet undetermined future. Under the new Scotland Bill, Holyrood will be able to supplement this with "top up" payments to those who are already entitled to reserved benefits. Osborne's proposed tax credit cuts will come into force in 2016. A Labour administration in Holyrood seems unlikely to have access to HMRC's services. 

So who would administer the tax credit mitigation?  That notoriously streamlined, efficient, on-time and on-budget decision-maker that is the DWP? Who will bear any additional administrative costs?And what is a realistic timetable for implementing these plans? Could it be done immediately? That seems highly unlikely, not least because Kezia Dugdale's proposals to fund financial mitigation of tax credits will only come into effect in 2017 or 2018 on current projections - a year after the tax-credit changes may bite. We'll see. What is the transition plan, if any? Has anybody contemplated any of this at all?

An air of complete unreality has characterised much of the discussion of this proposal. The state doesn't turn on a dime. It doesn't matter a damn what the Scotland Act says, it the apparatus for realising its powers is not in place. A little contemplation, and a little look back on recent experience confirms this. Massive welfare schemes involving complex entitlements being applied to individuals in different circumstances can't be conjured out of the air. What is Labour's plan? Cast your mind back to 2010. Labour - understandably - did their dinger after Holyrood's tax-raising powers - effectively - lapsed. They remained on the statute book. Under the Scotland Act, MSPs could still vary tax rates. But in reality, HMRC wasn't in a position to deliver up a roll of Scottish taxpayers. 

Leap back another year to 2009. The failure to secure HMRC cooperation in the collection of the new local income tax scuppered the minority SNP government's plans. Bedroom tax mitigation was made possible by the infrastructure of local government discretionary housing payments, and big boosts to their budgets (but only after a lengthy period of petitioning the UK minister to change the rules to make it possible). What is the plan with tax credits? If the DWP can be persuaded to administer any changes, what is the probable time-table?

"We'll come up with something" just isn't good enough. It is complicated. Very well, it is complicated. That isn't a reason to abandon the whole scheme. But there has been no indication whatever that the new Scottish Labour leadership has even contemplated these questions before rushing out it tax credits pledge. The fiscal framework negotiations between the UK and Scottish Governments are still ongoing. These will be critical. All is in flux, constitutionally, fiscally, on social security policy. John Swinney's caution here seems eminently rational. Pessimism of the intellect and optimism of the will is generally a sound combination. All Kezia Dugdale has offered the Scottish people thus far on tax credits is optimism of the intellect, and optimism of the will. The "sunshine of socialism", I suppose. But when cold budgetary winds are blowing -- this is cauld comfort. A government needs its pessimism too. It keeps you grounded. It stops you making rash promises you can't honour.  

I am sure Kezia Dugdale's heart is in the right place, but the tax credit fait accompli she presented is as hollow as it is misleading. Many commentators seem perfectly content to nod along with this, declaring it a canny strategy which puts pressure on the SNP from the left. Mibbe. But if it does so, it is only because of the electorate's innocence about the distribution of power in our constitutional system, and the reluctance of our political analysts to take Kezia Dugdale seriously, and to ask her serious questions.  Some modest mitigation of tax credit cuts might be possible. If it can be done without creating an administrative monster, the Scottish National Party should seriously contemplate it.

But waving a blank sheet of paper, sans plan, sans scheme, sans any sense of the political struggles and trials which will beset your best-laid, best-intentioned plans? That isn't the "sunshine of socialism". It's a will-o'-the-wisp.