Sunday, 11 November 2012

Proud of my Profession

I promised when I posted my Friday night blog that normal service would be resumed today. Before doing so I'd just like to thank everybody who was in touch, one way or another, in its aftermath.

Anyway, what is normal service at the moment?

I was on the telly at lunchtime today with Kate Higgins, otherwise @burdzeyeview, doing our usual double act.

In the course of the interview, which really devoted followers can find at the end of today's Sunday Politics Scotland on the iPlayer we covered three topics. In the course of the discussion of the last, the launch of Labour for "Indy" (whatever that is this week), I suggested that it contained a solitary member of the Labour Party. Helpfully, this "organisation" was in touch through twitter to protest that there are in fact two of them. I am happy to stand corrected.

The middle topic was that of pay-day loans, on which Kate and I, for once, found little on which to disagree but, inevitably, the main subject under discussion was the debacle at the BBC.

So much has already been said on the specifics of this that I have no intention of adding to it except to say, with some pride, that it shows the value of my own profession. It has already been observed that it was only thanks to their own lawyers that the BBC were saved from an even more disastrous error a week past on Friday. They, if not the journalists involved, realised that the uncorroborated evidence of a witness already described as "unreliable" by the Waterhouse Tribunal was not the basis on which to accuse anybody of a serious crime. And I doubt if, had they been asked for a moment, the lawyers would have thought the use of the weasel phrase"A senior Tory official of the Thatcher era" was ever going to be enough when, truly, the allegation was not one made generically but rather specifically against the man accused. No-one who made the programme, even if they naively took their witness at face value, thought for a moment that he might be talking about (another) "senior Tory Official of the Thatcher era", (because even on the witnesses own, since retracted, testimony, he wasn't) so if the allegation couldn't be reliably made against Lord McAlpine by name, then patently it couldn't be made properly against anyone within that wider group. I simply have no idea why there was no realisation of that except the old saw that the facts were not to be allowed to get in the way of a "good story".

Dare I say it, that's more what you would expect of the Sun than of the BBC.

And all of this, we have to assume, would have been avoided if the most basic of precautions had been taken; the showing of the witness a picture of Lord McAlpine and the question (leading though I appreciate it would have been!) "Is this the man you are talking about?"

No competent lawyer would have made that mistake. Then again, perhaps, so would have no competent journalist.

But that leads me on to more familiar territory; Scottish politics.

There is a skill to asking questions.

At lunchtime on Tuesday 30th October the Lord Advocate wrote to Ruth Davidson. The full text of the letter, somewhat mysteriously, does not appear to be available online but a copy of the letter was sent, internally, to every single Opposition MSP. This is what he wrote in the third paragraph.

"As was made clear by the Deputy First Minister the Scottish Government has now requested specific legal advice from the Law Officers on EU Membership. As you will be aware legal advice on many issues is provided by the lawyers in the Scottish Government Legal Department (SGLD) but in relation to certain matters the government will seek a legal opinion from the Law Officers. That is what is happening in relation to the matter of EU membership"

(My emphasis)

That same afternoon Nicola Sturgeon summed up a debate on this very matter and at 16.38 Of the Official Report said

"Clearly, if ministers have sought legal advice, the law officers will provide that legal advice, so to reveal that legal advice has been sought from the law officers reveals the fact of such advice and puts us in breach of the ministerial code."

(Again my emphasis)

Both of these statements can't be true.

So here, if I had been asking my first year trainee to act up in the role of Leader of the Opposition are the three questions I might have suggested they ask on Thursday 1st November.

1. Do you agree that the Lord Advocate wrote to Ruth Davidson stating that "Legal advice on many issues is provided by the lawyers in the Scottish Government Legal Directorate?

2. Do you agree that the Deputy First Minister said in the Chamber "Clearly (sic), if ministers have sought legal advice, the Law Officers will provide that legal advice"

3. Since both of these statements can't be equally true, on the matter of automatic EU entry, does the Government already have legal advice from the Scottish Government Legal Directorate?

Quite literally, the Lord Advocate had passed the Opposition the ball in front of an empty net. And yet they still conspired to miss it in a manner which would have defied even Chris Iwelumo.

Instead, while I know the answer to that question, I suspect even the very politically nerdy of my readership can't remember the questions actually asked at that First Minister's Questions, except that they involved shouting in a generally unspecific way that Eck was a lying toad.

Well here's my final piece of legal advice. I have, over thirty years, conducted numerous trials where the defence consisted, for want of anything better, of accusing all the prosecution witnesses of being lying toads. And I've never secured a single acquittal on that basis.

There is no substitute for actual evidence.


  1. There has never been any claim about "automatic EU entry". How "lawyerly" that you are prepared to quibble ad nauseam about semantic nuances while having no regard whatever for facts.

  2. "...the Government’s position in the independence white paper will be based on and consistent with the advice that we receive."

    If the SG already have some form of legal advice, but not from SG’s Law Officers, and the latest commissioned specific legal advice from the SG’s Law Officers concludes the opposite to the existing legal advice, wouldn’t that put the SG in a win/win? They could include either/or in thier Independence White Paper.