Saturday, 16 March 2019

A legal tutorial (part 2)

Well here I am again, this time while hoping not to be too distracted by the rugby.

So, where have we got to?

The accused has declined to avail himself of s.76 to tender an early plea and so the Crown elect to bring the matter to trial by serving an indictment.

At this point, I am going to make certain assumptions for the sake of brevity.

Firstly that the matter will proceed in the High Court where the procedure is slightly different from before a Sheriff and Jury.These cases do go to the Sheriff Court but where the likelihood is, on conviction, of a sentence of five years or more (because of the seriousness or multiplicity of the charges) the High Court is usually the Crown's chosen forum. And it is their call.

Secondly, that there are no particularities in respect of the capacity (physical or mental) of the accused to stand trial.

Thirdly, that there are no preliminary legal issues relating to the relevancy or competency of the charges or as to a challenge to the admissibility of any intended evidence.

The next thing that happens then must happen within ten months of the appearance on petition  The Crown must serve an indictment specifying a date for the case to call for a "Preliminary Diet". The Criminal Procedure (Scotland) Act 1995 (hereinafter "the Act" provides that, when the accused is not remanded in custody, a Preliminary Diet must take place within eleven months of the appearance on petition and the Act also provides that the accused must have twenty eight clear days notice of the Preliminary Diet, thus giving you the ten months I refer to above.

The service of an Indictment is not something automatically in the public domain but it is not a secret either and a practice has arisen of the Crown (I presume) alerting the press to its happening together with the date of the first appearance. That is publicly reportable and the information disclosed at Petition stage repeated but otherwise no further details disclosed.

With the Indictment the Crown will normally serve a "Statement of Uncontroversial Evidence"  which will in the absence of defence objection be taken to be admitted. This is usually just Police procedural stuff, agreement that "paper productions" are what they patently appear to be and that any transcripts of evidence or video footage of interview(s) are accurate. If the defence objects, "normal" evidence is simply led at trial but there are imperatives on defence lawyers not to play games about this. In sex offence cases the Crown will also normally serve "Vulnerable Witness Notices" providing for the special measures such as screens or video links that they propose be used to take the evidence of the complainers or any other persons deemed to be vulnerable witnesses. This in itself could be the subject of a blog on its own but here I will simply assume that no issue is taken.

Seven days prior to the Preliminary Diet the defence must do two things. They must co-operate with and lodge the Joint Written Record I referred to in my earlier blog and they must also lodge a "Defence Statement" in terms of Section 70A of the Act. A defence statement indicates in general terms the nature of the defence but crucially it must give notice of any "Special Defence". Now there are a number of special defences in Scots law. Theoretically, in cases of the nature I am referring to, there might be the possibility of an alibi, or a plea of temporary mental incapacity but the key one here is consent. If the accused wishes to advance a defence of consent, notice must be given at the preliminary diet and if it isn't (and no other special defence comes into play) then the accused is left with the simple defence of "it never happened". The problem of course in cases where there are multiple complainers is that while a consent defence can be lodged in respect of each incident, that complies with the procedural requirement but, at trial, "they all consented at the time but they are all saying something different now" is a pretty high mountain to climb, even to the extent of raising a reasonable doubt.

But what the defence must do is not what the generally need to do. Here is section 274 of the Act:-

274 Restrictions on evidence relating to sexual offences.(1)In the trial of a person charged with an offence to which section 288C of this Act applies, the court shall not admit, or allow questioning designed to elicit, evidence which shows or tends to show that the complainer—(a)is not of good character (whether in relation to sexual matters or otherwise);(b)has, at any time, engaged in sexual behaviour not forming part of the subject matter of the charge;(c)has, at any time (other than shortly before, at the same time as or shortly after the acts which form part of the subject matter of the charge), engaged in such behaviour, not being sexual behaviour, as might found the inference that the complainer—(i)is likely to have consented to those acts; or(ii)is not a credible or reliable witness; or(d)has, at any time, been subject to any such condition or predisposition as might found the inference referred to in sub-paragraph (c) above.(2)In subsection (1) above—“complainer” means the person against whom the offence referred to in that subsection is alleged to have been committed; andthe reference to engaging in sexual behaviour includes a reference to undergoing or being made subject to any experience of a sexual nature.]
Now, to be clear, this applies not only to the leading of third party evidence by the defence but to the questioning of the complainer(s) themselves.
So, if the defence want to suggest, for example, that a complainer had consensual sexual relations with the accused before or after the incident charged, they need to get permission. And the scope for getting that permission is provided by section 275. I won't quote this in full but here's the link if you are interested https://www.legislation.gov.uk/ukpga/1995/46/section/275
A section 275 application must be made seven days prior to the the Preliminary Diet and disposed of there (it's not quite as simple as that but this will do) and once disposed of the defence can only ask questions as allowed to do so. The disposal of such an application is, as you will appreciate, quite often a significant milestone in relation to the prospect of a "muddying the waters" defence.
With that to the Preliminary Diet itself. 
Unlike the appearance on Petition, in the absence of any court ruling to the contrary, this takes place in open court and the press can report the charges in full excepting not only the identity of the complainers but anything that might reasonably lead to their identification. 
Having disposed with the procedural issues outlined above and anything else that might arise, the judge fixes a trial date and trial must then commence within one year of the appearance on Petition. 
Except it is not as simple as that. Quite commonly either the defence or prosecution aren't ready to do that. Defence investigations are ongoing or Crown witnesses aren't available, or sometimes in relation to a potentially long trial, there simply isn't a courtroom readily available. So there is an extension to the twelve months granted by the court. This is much more common than you might think. Indeed,on occasion, can be for several months.
Anyway, finally, to the trial. 
This is in some way the easy bit. There are fifteen jurors. There are no opening statements. The Crown lead their witnesses and close their case The defence then make submissions of "no case to answer" in respect of any charge on which they think there is an insufficiency of evidence*. Assuming there is no  knock out blow, the defence lead any evidence they are inclined to do so. Prosecution and then defence speak to the jury. Then the judge does. The jury retire and, in respect of any charge for which there is a simple majority for guilty, that's what happens. All of the above which the press can report.
Obviously, if the accused is found not guilty, that's the end of it. 
Excepting the rare occurrence however where, although there is a finding of guilt only on trivial matters, more serious allegations having all failed, a finding of guilt is not the end of the matter. 
In Scotland, no-one who has never previously served a period of imprisonment can be sentenced to one without the court having first obtained a Criminal Justice Social Work Report. So sentence has to be deferred for that purpose. And even where imprisonment is more or less inevitable bail is usually continued for that purpose.  
But, generally within four weeks, as the rules provide, sentence is then imposed. 
As I say, imprisonment is almost inevitable for serious or even repeatedly individually less serious offending. But it is not just a matter of the jail. Any convicted person must be placed on the sex offenders register for a period the judge determines. He may also receive an "extended sentence" whereby although he has finished his prison sentence he remains subject to continued conditions of behaviour and/or supervision on his release. 
And then, excluding any appeal, that is finally it.
And that is finally me. 
Well done Wales, by the way.
*In what I have said above, for reasons of brevity, I haven't dealt with the issue of  Moorov sufficiency at all although this is the point where, if applicable, it would come into focus.  









Friday, 15 March 2019

A legal tutorial (Part 1)


I'm in a bit of an odd position this afternoon as I was meant to be in court and by the time it became that wasn't necessary, it was too late to make client appointments. Unfortunately, a couple of client appointments had already been made in anticipation of my return from court post 4pm, so I have to stay here for them. In the meantime however I have dealt with my mail, returned all my calls and even run out of "put off" work to fill my time.

So, I thought I would indulge in a wee bit of legal education, which is about the conduct of the defence in a historic sex offence prosecution.

Alleged serious historic sex offending proceeds under what is known as Solemn Procedure.

The first appearance is made in private and (in the absence of reporting restrictions, the press are free to report the happening of the appearance and the identity of the accused. The only other matters they can report are the general nature of the charges as provided to them by the Crown office and Procurator Service. (hereinafter "the Crown"). In non sexual cases the Crown will quite commonly give the press quite a lot of detail, e.g. "It is alleged that on 10th May the accused entered the Royal Bank of Scotland at 22 Main Street, wherever, armed with a shotgun, that he held members of staff hostage there, and robbed the bank of £50,000". In sexual cases this is not the practice, detail of the charge(s) usually being restricted to the nature of the offence or offences alleged, without reference to place or time.

The press are also allowed to report whether any "plea or declaration" was made by the accused (although invariably none is!) and, procedurally the case is then either, "continued for further examination" or "committed for trial". In practice, assuming the accused is admitted to bail (and failing previous convictions bail is invariably granted in historic sex cases) the route thereafter is identical. The accused is admitted to bail on standard conditions but usually with the additional condition that he (I'm just going to use "he" throughout as alleged offenders of this nature are overwhelmingly male) does not contact or attempt to contact any of the "complainers", that being the technical term for accusers.

This, until the next appearance, is as much as the press can say about matters until the next appearance in court, a matter I will come on to.

But what is visible to the world  is only a fraction of what has happened. Prior to appearance in court, the accused will have been served with a "Petition" which sets out in detail the charges he faces at that time. This will give details of place and date and not just the ultimate crime alleged but it's mechanism. My apologies for the explicitness of what follows but a historic rape charge might read (after a preamble) "on various dates between 1st January 2004 and 31st March 2004, at 22 Main Street, Wherever, you did repeatedly strike and punch Jane Doe, your then partner, forcibly remove her clothing, insert your penis into her vagina against her will and did rape her."

You will note the accused is given the name of the complainer although that never, ever features in the public domain even if the accused is acquitted after trial.

You will also note the date I have given. In 2009 there was a major change to Scots Law in
relation to sexual offences by virtue of The Sexual Offences (Scotland) Act 2009. That redefined or re-categorised  certain offences but it also put them on a "Statutory" footing so that what had previously been common law crimes became crimes charged as a contravention of the 2009 Act. But the criminal law cannot be retrospective, so pre 2009 offending is still charged under the old law, as per  the example I give.

But at first appearance the accused is also given what is known as the "Crown Summary". This is, literally a summary of what the Crown says is the evidence they intend (or at least hope) to adduce if the matter proceeds to trial. This document normally runs to several pages but to precis, in relation hypothetically to the charge above, it would consist of details of the parties relationship; greater detail of the circumstances surrounding the alleged rapes; any contemporaneous supporting evidence such as medical records;  what happened subsequently in terms of the parties separation; why and how the complainer first went to the authorities; a narrative of the police investigation which followed, including any details of anything said at interview by the accused and, finally, any reply to caution and charge.

Anyway, that's what the defence know now but shortly they will know more.

Following the first appearance, the defence request from the Crown what is known as "disclosure", which consists of all statements taken or provided in connection with the case, including any statements upon which the Crown do not intend to rely. Disclosure also involves copies of any Police forms or other documentary productions, including medical or other records if appropriate.

In an "early arrest" case, such as a robbery, all of the evidence might not yet be available, at least in disclosable form, but historic sex abuse cases usually come "pre-packed" in that all Police Inquiries are concluded before the accused appears in court, so disclosure usually follows fairly quickly.

Now, when I started out in this job, more than forty years ago, there was no disclosure except of productions. All you got by way of witnesses was what was known as a "provisional list" of those the Crown were currently thinking of calling. The defence had to arrange their own statements to be taken but once they had what generally happened was....nothing. You just sat and waited for the Indictment (of which more later) and any discussions about pleas awaited its issue.

Since then, however, there has been a complete game changer. What is now section 196 of The Criminal Procedure (Scotland) Act 1995, introduced as part of the "founding" Statute by the Crime and Punishment (Scotland) Act 1997.

It provides quite expressly that an accused person will receive a discount in sentence in exchange for an early plea. In a series of judgements since, most significantly in Spence v HMA in 2008 the High Court has set out what an accused might reasonably expect that sentence to be and, crucially, that discount is a full one third of the term that might be imposed. Now there are still discounts available at later stages but these reduce the closer it  to trial before the case resolves. And there is also double whammy for the accused. Someone facing a five year full fat sentence, with a one third discount, ends up with a sentence of three years, eight months. That then is a sentence of under four years, qualifying them for automatic remission of one half, meaning they serve only 22 months. The five years is obviously over four however, and the remission drops to one third, meaning you would serve 40 months. For the same crime, based on decisions the accused has made before conviction.

So there is real pressure on accused persons to take advantage of s.196 by authorising their lawyers to approach the Crown to resolve the case before an Indictment is served. This is particularly so still when the accused faces multiple charges, where the Crown might be content to drop certain charges in exchange for a plea whereas insisting on proceeding with all charges if the matter goes to trial.
And just to emphasise this, if the defence do just wait for an Indictment, they must then prepare what is known as a "Joint Written Record", which is essentially a document signed by both prosecution and defence, indicating what steps have been taken to agree evidence or establish contentious legal issues. One of the questions the defence must answer on this standard form is to expressly confirm the accused has been advised of the provisions of s.196.

If an agreed plea is reached at this stage, then the defence sends the Crown a letter as required under section 76 of the Criminal Procedure (Scotland) Act indicating the intention of the accused to plead guilty on the agreed terms and the matter then calls in Court under an accelerated procedure for the plea to be tendered.

What happens then, I will deal with later.

And I've run out of time! In the end I did have more to do this afternoon than I thought.

I'll try to get  this finished at some point over the weekend.






                                                                       


 

Thursday, 21 February 2019

New Party or new politics?

Who among you has ever heard of a Scottish politician called Alan Rennie?

Me neither.

But at the 1983 General Election, Mr Rennie, a Liberal, stood, as part of the SDP/Liberal Alliance,  as a candidate for Parliament. Those of you old enough will recollect the general platform on which Mr Rennie would have then been standing. For devolution. For social liberalism but economic responsibility.  For continued membership of the European Union and NATO. For a considered political dialogue within which your opponents did not necessarily need to be your enemies. 

So, good chap (probably) Mr Rennie. Except that his fellow candidate in this local contest, Monklands East, (I'm beginning to give away my punchline here) was none other than John Smith. Who triumphed comfortably, I suspect to the not inconsiderable relief of Mr Rennie himself. For they stood for almost exactly the same thing!

I wasn't for the SDP. Never even really thought seriously about it. And, to be honest, I never,until recently, really had to seriously even think about voting for them or their successors, the Lib Dems. For until the Tsunami of 2015, I had always lived in safe Labour seats and, even now, live in one where Labour is the only conceivable alternative to the SNP. (A point to which I return).

But I live in Kilsyth. And just to my west lies the East Dumbartonshire Parliamentary Constituency.  Where, in 2017, I would have faced the choice as to who to vote for to remove the then SNP MP, John Nicolson. Labour was represented by one Callum McNally, who came a heroic fourth but who may well have been as worthy a person as Mr Alan Rennie. However only person who had any chance of beating Mr Nicolson was the Lib Dem, Jo Swinson,  As she then did. So, here is my confession. I would have voted for Jo Swinson.

I might have woken up the next day thinking that her 5,000 plus majority hadn't needed my contribution but I wouldn't have swapped that for worrying, the night before, that sticking to Party might have seen Nicolson returned by a single vote.

So, even I get that I'm failing to come to the point.

This week, eight Labour MPs and three Tories have formed a new "Independent" Parliamentary group. The suggestion is that others will follow.

There are those who think that the logical conclusion from this is a new political Party which stands "everywhere". But mibbee it is not.

Why conceivably should it stand against Amber Rudd, if she stays with the Tories? Or Yvette Cooper, if she stays with Labour? Why, even if it does not reach a formal arrangement with the Lib Dems, should it want to shave off votes from the existing Lib Dem MPs?

"The BBC rules" is kind of the answer. "If you don't stand everywhere, you are not entitled to equal coverage". How's about calling out these rules? As the SNP have already done.

So, if the Independent Group goes forward as a Party, how's about it only stands where the likely winning candidate of one of the major Parties stands on its extremes? And otherwise says vote for Amber Rudd. Or Yvette Cooper. Or Tom Watson. Or Justine Greening?

And in Scotland, where the further fragmentation of the "unionist" bloc serves only one purpose, how's about it doesn't stand at all?

Because here is my final and most shocking confession. Never mind voting for Jo Swinson in East Dumbartonshire in 2017. Had I lived in Dumfriesshire, Clydesdale and Tweedale, I'd have voted for David Mundell.

New politics requires new thinking. First past the post, traditionally applied, serves only the interest of Boris Johnson or Jeremy Corbyn. And I'm not inclined to vote for either of them. 

Sunday, 20 January 2019

A light at the end of the tunnel?

It has been a recurring theme of mine that we could be sleepwalking to disaster on a hard Brexit. Despite repeated statements from centrist politicians across the Party divide that there is no majority for in the House of Commons for such an outcome, it remained and remains the fact that  this is what is currently enshrined in Primary Legislation and is scheduled to happen unless contrary legislation is passed at some time before 29th March.

And I have pointed out repeatedly that it is exceptionally difficult for Members of Parliament to pass Primary Legislation without the co-operation of the Government. For the Government, even without a majority, normally controls the business that Parliament can conduct.

Against that background, while Parliament can pass all sorts of motions, even wrecking amendments tagged on to different legislation, unless they can gain control of the "levers of power", the statutory clock keeps ticking. And, unless there was a different Government, either as a result of a General Election or as a result of a political earthquake leading to an (at least temporary) Government of National Unity,  (neither of which seemed very likely), I couldn't see how that would change.

And, last week, both of these options essentially disappeared. For having ruled out, for the moment, endorsing this Government's deal on Tuesday past, the following day they, in one vote, also effectively ruled out the possibility both of a General Election or of a different Government being formed from within the current Parliament.

Which on the face of it made things look even bleaker. We were continuing down the track to a point where it would indeed be "This deal or no deal" and it certainly could not be ruled out that the determination of nobody to lose face would end up with the fifty or so hard Brexiteers on the Tory back benches aligning with the twenty or so hard Brexiteers on the Labour front benches to carry their way against the more than five hundred of their colleagues otherwise minded.

But, I may have spoken to soon. For something else happened last week. A group of like minded MPs did finally come up with a plan to stop (at least for the moment) a hard Brexit, without having Government support.

The plan is in two parts. Firstly, masterminded by Dominic Grieve, it involves voting to change the standing orders of the House so that, temporarily at least, Government business no longer automatically takes priority and that proposed legislation with a certified advance level of support (the suggestion is 300 MPs) should be found Parliamentary time to proceed. This appears likely to pass.

The second bit is however that legislation. The European Union (Withdrawal) (No.3) Bill, likely to be introduced by Yvette Cooper with the support of the Tory Remainers, Liberal Democrats and Nationalist Parties.

This does two things. Firstly, it changes the Exit Day contained in the European Union (Withdrawal) Act 2018 from 29th March to 31st December. Secondly, it instructs the Government to seek an extension of the Article 50 process to align with that date.

I am sure Corbyn won't want to vote for this but it is difficult to see how he could justify not doing so and thus this is also likely to pass. Obviously, it also has to pass the Lords, where the Government might try to deny it time but there is a big remainer majority there so I think that could be overcome. Finally, assuming it becomes law, the Government might still refuse to act as instructed I think that an unlikely response, particularly as, by then, it would be too late to have a General Election before 29th March.

So we can all then breathe a temporary sigh of relief.

BUT, this still does not solve the problem of where this ultimately ends up.

So I want to move on to that and to the strategic problem of those opposed to a hard Brexit. They are split more or less down the middle on what they want instead.

On the one hand there are those who want a second referendum. Now, this is all very well but there are simply not enough of them. Last week, 71 Labour MPs signed a letter to Jeremy Corbyn calling for this to become Labour policy. That is, with respect, considerably less than a third of the Parliamentary Labour Party.  Sure, there are some front benchers who couldn't sign and, we are told, a few other back benchers who didn't sign for "logistical" reasons (whatever that means) but nobody seriously suggests  that would get us to anything like half of Labour's Westminster representatives. Why? Setting to one side the handful of Brexit true believers, three reasons. Firstly, some, no matter how disappointed they might be with the June 2016 vote, believe it wrong in principle and dangerous to our democracy to try and reverse it, particularly without even an election mandate to that effect. Secondly, others fear what such an attempt might mean for the longer term electoral fortunes of the Labour Party in leave voting areas. Thirdly, others still think that we would just lose again, only this time with much less scope to argue that our defeat meant anything but the hardest of Brexits. Obviously, there is a degree of overlap but that there is a combined PLP majority for the conclusion that a second referendum is not the answer, isn't really in dispute. And,to be fair to Corbyn, this is a dilemma that would face any Labour leader. To that extent his personal euroscepticism  is largely irrelevant.

But then let us look at the other side of the coin. If there is not going to be another referendum, what do we want instead? Let's start by saying this. For resigned leavers ("wish we weren't leaving but we are"), there is actually nothing very much wrong with Mrs May's deal. The legally binding bit does not deal at all with our future relationship at all, excepting the backstop bit which, in leaving us in regulatory alignment with the EU potentially in perpetuity, understandably annoys the ERG, but, since we want to remain in that regulatory alignment anyway, should hardly bother us. Sure it's not as good a still being in the EU but it doesn't even rule out that being the long term conclusion of being "rule takers not rule makers". It just gets us out in an orderly manner. As for the "political declaration" if there is a real criticism it is in its vagueness. But it is only a political declaration. It cannot prevent a future British Government from wanting relations between the EU and the UK to develop in a different way, whether that Government is lead by Boris Johnson or Anna Soubry or even (more improbably) Jeremy Corbyn. So, in the end, as I have said since I started writing about this back in October, all logic points ultimately to Parliament approving something that, if it is not Mrs May's deal, certainly looks very much like it. If you see Keir Starmer interviewed in detail on this, he struggles to say what is wrong with the Agreement (as opposed to the political declaration) and yet, in a legally binding sense, we are only voting on the former.

The question ultimately is who holds out against that? The ERG and DUP certainly but I fear the second vote crew might themselves be becoming as much of an obstacle, particularly if Corbyn continues to make an unholy alliance with them in voting, to the death, against Brexit and in favour of something indefinably "better".

I've said from the start that ultimately Labour votes will decide this. For good or ill. But at least we might now have a bit more time to decide.


Sunday, 13 January 2019

In Defence of Alex Salmond.

I have tried to avoid commenting on the Salmond matter for the very good reason that I have no idea if there is a substantive matter at all. Nobody does.

Certainly I am aware that there is an ongoing Police Inquiry (a matter to which I will return) and that it appears that it relates to allegations of some sort of  past sexual misconduct. But that is all I know.

I do not know if the allegations are true and/or, even if taken pro veritate, they would constitute criminal offending. Nobody does.

That is what even the Police are only still trying to find out.

I defend people for a living. Many are guilty. Even some of them found not guilty were probably guilty!  But it is a far from unknown phenomenon for someone to be investigated in good faith by the Police only for them to be entirely cleared  and/or for it subsequently to be called into question whether there was ever any crime at all. Don't just take my word for it, consider the couple who spent two nights in the jail before Christmas accused of flying drones around Gatwick Airport.

Now, it is no secret that I have no time for Mr Salmond but that is not the point! He is as entitled to the presumption of innocence as much as the next man and it seems to me that some of his political enemies have completely lost sight of this. An internal SNP source is quoted in today's papers as attributing the difficulties the Party is in to Mr Salmond having found himself complained about. But, with respect, that would only be the case if the complaints were well founded. And, unless there has been an outrageous breach of confidentiality, that is something the source cannot possibly know. Similarly, Richard Leonard took it upon himself in the Scottish Parliament to describe the complainers (a word I use in the technical legal sense) as "courageous". How does he know this? Has he met them? Does he even know who they are? If not how can he possibly pre-judge their credibility and reliability in this manner? If (and it is a big if) this matter should ever proceed criminally these are remarks upon which any competent defence team will undoubtedly seize. Mr Leonard should shut up. As indeed should any other politician tempted to comment on the substantive background here.

And that leads me on to my second point. No matter what a mess the Scottish Government (both political and permanent) made of the original investigatory process here, the idea that there could be a public inquiry of some sort at this time is absurd. If (again I emphasise a big if) there ever are criminal proceedings then inevitably the matters to be covered by such an inquiry would involve testimony that would also be potential testimony at any trial. What were the nature of the complaints?  Were they the same complaints as had been made in 2013? Why were they referred to the Police in 2018 but not in 2013? What has Mr Salmond previously said to third parties, not least Nicola Sturgeon, about his response to the complaints? What has Mr Salmond himself got to say about it? Actually, I'll answer that final question, because like any person under criminal investigation, he would be entitled to say nothing at all. Indeed, that would almost certainly be the legal advice that he would be given. But, never mind that, in the aftermath of such an inquiry, how could Mr Salmond conceivably receive a fair trial when much of the "evidence" had already featured in every newspaper in Scotland? Enough of the amateur Perry Masons at Holyrood. Let due process take its course. There might well be cause for an inquiry when other matters are concluded but, on any view, we are still some way from that.

And thirdly, there is another criminal inquiry, albeit not by the police but by the Information Commissioner, now underway in which, at least on the known facts, Mr Salmond has legitimate cause for complaint. How the fact a referral was being made to the Police ended up on the front page of the Daily Record?  Consider what happened here. In mid August, Leslie Evans told Mr Salmond that the outcome of the (until then internal Scottish Government) Inquiry was to refer matters to the Police and that the intention was to make that referral public. Mr Salmond then indicated that he would intend to take legal action to prevent the public element of this as he believed the investigatory process to be flawed. A matter on which he was vindicated last week, albeit not, as I read it, on quite the same basis as the challenge was commenced. Now, that original proposed challenge might have been a hopeless battle, in that the referral itself was not something that could be prevented in the civil courts and once a Police inquiry commenced matters would inevitably, at some point, have reached the public domain. But again that's not really the point! For, to head off any possibility, of the matter remaining confidential, somebody decided to tell David Clegg.  I make no criticism of Mr Clegg. It was a great scoop and if it was reprehensible for journalists to publish leaked Government information then the political pages of  the newspapers would become pretty dull places. Nonetheless, whoever leaked this, assuming they did so deliberately, almost certainly broke the criminal law. And did so for the precise purpose of damaging Mr Salmond. It will almost certainly prove impossible to establish an individual's guilt for Mr Clegg will, quite properly, protect his source. Thereafter, while only a small circle of people could have done the leaking,  it is still quite a big small circle, albeit clustered around one, or possibly two, particular people. It is an open secret that Mr Salmond's team have a principal suspect and that that suspect is not part of the permanent government. Nonetheless, even if individual guilt is not established, it is important to acknowledge what happened. And to deplore it.

But my final point is this. Everybody should calm down. The Police Inquiry is not concluded and, even when it is, in a matter of this nature, any final decision is highly unlikely to be taken by the Police but rather by the Crown Office.

All of that will take time, most likely several months. And (as I have made clear above nothing should be read into this "and") if there is a prosecution it is highly unlikely matters will be concluded in this calendar year. So let's respect the presumption of innocence and the right to a fair trial. These are both fundamental to all of our civil liberties. Not just Alex Salmond's.

Tuesday, 1 January 2019

Rejoin?

Happy New Year.

I have had a pretty typical Christmas. Ate lot of food, drank a lot of wine, watched a lot of telly, read a lot of books. Even had the traditional festive breakdown of the central heating at one point.

But I have also had an anxious Christmas.

For on the 21st, in between juggling last minute court commitments and last minute Christmas presents, I spoke at length to a friend who, before the Tsunami of 2015, had been a very senior Labour MP. I expressed my concern that the split between those who, on the one hand, accepted the result of the 2016 Referendum but wanted the softest of Brexits and those who, on the other, wanted to re-run the referendum in hope of a different result was slowly but steadily leading us to the disaster of a no deal departure. Those who follow my blog will know that this is not a new concern of mine.

I suspected my interlocutor would be in the "People's vote" camp and I hoped he would enlighten me as to what I had missed as to how, without control of the machinery of government, such a contest could possibly be brought about. Or indeed how the People's Voters might gain control of the machinery of Government. He didn't reassure me, for he was equally bemused as to any possible strategy that would deliver a Government based, on the most optimistic of numbers, on a hundred or so Labour MPs prepared to break the whip, allying with fifty or so Tories and sixty or so others. In a parliament of six hundred and fifty. Nor could he explain how normally rational "centrist" politicians thought that they ever might achieve such an outcome. But, with the benefit of far better political contacts than I, he was, if anything, even more fatalistic than me about the prospect of this, or indeed anything else, stopping a hard Brexit. He confessed that he kept encountering people within the "permanent" government who found it inexcusable and indeed almost inconceivable that "the Country" would be allowed to indulge in such a monumental act of self harm but yet that none of them could explain how such a thing might be stopped. For the only deal on the table, Mrs May's deal had, in his opinion, no chance of succeeding against the perverse coalition of interests: "People's Voters"; the ERG; disaster wishing Trotskyists and whipped Labour loyalists all arraigned against it. And the law of the land, already enacted, is that if there was no deal then we would leave on 29th March. Without a deal.

Now, I have said all this before but at the risk of repeating myself, the likes of Amber Rudd can say all they like about there being "no majority in the House of Commons for a hard Brexit" but, with respect, if there is no majority for any specific deal, then , starting from where we are legislatively, then there is, by logical conclusion, a majority in the House of Commons for a hard Brexit. FOR THERE IS ONLY ONE ALTERNATIVE ACTUALLY ON OFFER!!!! (apologies for shouting) and what is perceived to be wrong with that deal is not solvable in a way which somehow magically changes the Parliamentary Arithmetic. Setting aside the diplomatic obstacles to somehow getting a fix on the backstop (and, given that any fix would involve the UK Government having the unilateral right to close the Irish Border at a future time of their choosing, these obstacles are substantial), fixing the backstop still does not deliver the hard core votes of the most extreme ERGers, for they do not wish any deal. Yet, without their votes, the deal can't pass on Tory votes alone. Equally, given it would still be a deal to leave without a clear future direction of travel, it is questionable if it would deliver a hard core of Tory Remainers either. Corbyn positively wants chaos in the hope that people would embrace "socialism" as the only alternative to chaos and no deal certainly delivers chaos. While the Labour whipped loyalists will just do whatever Corbyn wants. Partly out of Party loyalty and partly out of otherwise fear for their own future at the hands of his ultras in their constituencies.

But the problem for the people who hold the key to this, the sensible, pro European, non self serving and hoping of personal survival, majority in the Parliamentary Labour Party, is this. Like the remainer Tories, they don't want to be seen to have voted for Brexit. Even more so in the current internal Party climate. Where to have done so would be portrayed by the Corbynistas as having prevented their wholly illusory hope of a General Election and even more illusory hope that, without any coherent Brexit policy,  this would be a General Election Labour might win. And it is also not lost on them that they face the irony of being caricatured as the handmaidens of Brexit, against a future portrayal that Corbyn, (Corbyn!) had somehow voted against. Not against the deal but against the whole enterprise.

But that is what needs to happen.

But it is not all that needs to happen.

British politics is fractured.

Sometime between February and October this year, I will have been a member of the Labour Party for forty five years. The Party I joined represented the interests of people who had little money and wanted a wanted a fairer share, allied with those of broadly liberal sentiment on social issues. Our principal opponents represented the interests of people who already had money and wanted to keep it in coalition in turn with those more generally resistant to cultural change. That is not however the political divide today. The political divide today however is between those who wish to look forward and those who want to look back. Look back not just to naval bases east of Suez, a Bobby on every corner, people knowing their place in life and the civilised world stopping at Dover. But also look back to British jobs for British workers, with local schools in local towns discharging generation after generation to work in local factories or the local presence of monolithic  nationalised industries.Both of these worlds have gone and no opportunistic political parasites from either extreme of the political divide are, in the end, going to bring them back.

Yet that was how the Brexit Referendum realigned our politics. Bringing about a coalition of different perceived versions the past that created a common objective between Jacob Rees-Mogg and (in truth) Jeremy Corbyn to go, literally, back in time. An objective they continue to share.

But, no matter whether we like it or not on 23rd June 2016 it was "the will of the people" that we leave and I have always had reservations about the consequences of not implementing that "will". Mrs May's deal does that. Having voted to leave, we will have left. But thereafter anything is possible. And, it having been disastrous to leave, why would it not be sensible to rejoin? Nothing in the Withdrawal Agreement prevents that and in truth our current opt-outs, on the Rebate, from Schengen, from the Euro, would surely still be on the table while we remained a net budget contributor.

So that's where I think the argument should go. Take the only deal on offer now but then campaign for the eventual outcome of the trade talks which are to follow to be rejoining. It is difficult to see that ever being something Corbyn personally would endorse but it is certainly something I can conceive becoming Labour Party policy. And if it doesn't? If the current cult of personality gripping my Party proves too hard to overcome? Then perhaps some other Party might be needed to take it forward. A Party that might, if Mrs May ultimately falls to a candidate of the Tory hard right, find it had other willing allies on hand. "Rejoin the Future" has a nice ring to it.


Sunday, 9 December 2018

Time to help Horatius keep the Bridge



For the last week I have been physically in Hungary but intellectually in the UK.

We've been to the opera. Twice in fact. Once to see a wonderful performance of The Magic Flute and on the other occasion to see for the first (and undoubtedly last) time, Puccini's Golden Girl of the West. Which, if it is not the worst opera written by a major composer in their prime, must certainly be on the shortlist.

But we've also been to see the magnificently restored Budapest Museum of Modern Art (picture above) and on an extended tour of the Christmas Markets. I cannot commend either too much.

Mainly however we have been visiting Andi’s folks and, since I don’t speak Hungarian, outwith these  couple of trips into central Budapest, I have been largely left to my own devices while Andi chats away interminably to her mother about God knows what, possibly me, and her dad watches 1970s US cop shows dubbed into the local language.

So I have spent even more time than usual on Twitter. Following the current dysfunctional state of British politics. And here are my conclusions. Over Brexit, there are only two intellectually coherent camps. There are the hard brexiteers. Sure, much of their short term argument is dishonest, presumably on the principle that the end justifies the means, but, like the Scottish Nationalists, to whom they bear such a marked resemblance, they believe that any interim pain will be worth it for the long term gain. To continue that analogy, they aren't even entirely clear what that long term gain would be but they do genuinely believe it will be there. Thus their strategy is clear. Run out the clock. We are leaving on 29th March and they have the metaphorical points on the board in the form of The European Union (Withdrawal) Act 2018.  Like Clive Woodward's England, what does it matter if the ball is messily retained by the forwards for months on end (to be fair, with Woodward's England, it only seemed like months) in a spectacle few would want to pay to watch? Wait for the 81st minute and then kick the ball into the crowd. Victory will be their's. They know what they are doing.

And so to the second coherent argument. That of Mrs May and her principal public partisan, Rory Stewart. I have a huge regard for Rory Stewart, who I first met during an earlier referendum. He is no lackey. Had it not been for his principled opposition to British policy in post 9/11 Afghanistan and indeed his opposition to the complete folly of the second Iraq War, he would surely be much higher up the ranks of Government than he currently is. So, when he allows himself to be called to the colours, it is not out of blind loyalty, it is out of conviction. He makes no pretence that the current deal is perfect. No agreement could be which both respects the result of the referendum and yet wants to protect as much as possible of which we already have, (an "already have" which, let us not forget, is still the personally preferred and informed option of almost all senior politicians in all four of our major Parties). No such deal will ever be perfect. But Rory asks the simple question "If not this, then what?" And no-one answers. For no one else has a coherent answer.

Let's start with the "Peoples' Voters". If I thought for a minute that we could just re-run the original vote and that, this time, my team would win by a landslide, then the Peoples' Vote would have no greater advocate than I. I really, really want to stay in, with a commitment that would make Michael Heseltine look almost eurosceptical. Only there is no evidence at all that this outcome would be the inevitable result of a Peoples' Vote. . Choose your opinion poll and sometimes we win. Indeed on balance we are currently more likely to win (just). But, two things. That was also what the polls said before 23rd June 2016. And even if we do win? To settle the matter it would have to be decisive. To pose a far from hypothetical example, suppose, this time, my team this time triumphs 51/49? Who would actually have won this double header? So, onwards to a "best of three" penalty shoot out? And that's even before we look at the simple practicalities of how we actually hold such a Peoples' Vote prior to 29th March? Or indeed what the question would be. This is not a serious proposition.

And then we have the "EFTA"ers. I'm for this as the least worst option for our future relationship with Europe. But Mrs May's deal is not about our future relationship, which is what any ultimate EFTA deal would be about. It's about the terms on which we leave NOW. Now being by the end of March. For that, let me just repeat, is the law. The transitional provisions baked into the deal settle nothing in that regard. They just guarantee there would be a transition. And in terms of that guarantee, it is this deal or no deal. And as to the importance of that transition?

This has been the week of Priti Patel's observation that if there is disruption to our food chain then the Irish won't be exempt. Given British/Irish history this was, to put it mildly, best left unsaid,. It is however  undoubtedly true. Let's be frank. In the event of a hard Brexit, the Irish might up end up with empty supermarket shelves and have little choice about it. For much of their fresh food would then have to cross two customs boundaries.  Except that, unlike the Irish,  we do have a choice. And while this potential food shortage is a choice the Irish didn't choose for themselves, it is one, for ourselves, that Ms Patel actively favours! For them in the form of a punishment but for us in a bizarre form of reward!

And then finally we have the Labour Party. To what end? I am a member of the Labour Party. I may have mentioned that previously. So, if I confess I have no idea what our policy is, then I defer to no less informed individuals in trying to explain it to me. Our "policy" appears to be a General Election. During the campaign of which election we would have no policy at all other than an inexplicable "better" deal on leaving. Albeit that we couldn't explain what that better deal was and the vast majority of our candidates wouldn't actually want to leave at all. But this apparently would be all right on the night. Anything's possible, I suppose. Particularly if you ignore the MSM and assume the electorate will gain their information entirely from Novara Media. Except the Jews of course. Who can just fuck off altogether.

So, back to where I started. There are only two serious options and they in the end both turn on a question their partisans both agree on, if they agree on nothing else . It all rests on whether Mrs May survives. If she does, then in the end her deal will pass. If she doesn't, then we will be left with the only other coherent option. A hard Brexit. Possibly even embodied in the person of her successor as Prime Minister.

And thus finally I come back to Rory Stewart. During the week he was described somewhere as Horatius charged with keeping the bridge. Suggesting that he was faced with a hopeless task. Forgetting that Horatius, although does not actually keep the bridge, does in the end win the day. It is a poem I knew in childhood and thus, like such poems it never entirely leaves you. Although I confess to a bit of internet research to refresh my memory.

But that done, I remember the words of Spurius Lartius provided by McAulay.

"Lo, I will stand at thy right hand and keep the bridge with thee."

Time others stepped up to that plate.