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


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.