Avant?

Tomorrow is my birthday and on that day I will reach an age denied to either of my parents.

Whether for that reason or others, I have been a rather melancholy and reflective mood all week.

Such a milestone would of course cause anybody to do a bit of looking back. At what they are happy has happened in their life and what, given the opportunity again, they would have done differently.

At a personal level, that's hardly the subject matter for a public airing but of course, for me, to dig out a slogan from my distant past, the personal is also political.

Last Saturday, the Parliament Channel ran again the BBC Coverage of the February 1974 General Election. That was the last election which I observed without actually being a member of the Labour Party. Even then, and certainly since then, politics, and particularly Labour Party politics, has been my life.

From the perspective of personal ambition I would certainly have done some things differently, not least in heeding the advice of those more predisposed to my own best interests than I, in the heat of battle, perceived them to be at the time. But in terms of the causes I have fought for, I have few regrets. Yet, in terms of the battle with which I am most associated, the struggle for a Scottish Parliament, I am increasingly coming round to the view that, in terms of the hope I, and many others had for it, it has been little short of an unconditional failure.

I want to examine, in turn, each of the arguments that I myself made from 1979 to 1997.

Firstly, there was the lawyers argument, that it was absurd that Scotland was the only place in the world with its own legal system without its own legislature. Of course what we have now is an improvement in theory but as you see the blundering about within that system, at the behest of special interest, by those who start and appear willing throughout the process to remain, in possession of only the most tenuous grasp of the issues they are meant to be considering, you really do wonder whether that theoretical improvement justifies the cost involved.

We saw this, for example, in the bizarre episode where warrant sales were abolished, leaving Scotland, for eighteen months as the only advanced democracy where there was no diligence against corporeal moveable assets. The consequence was of course that those with no other assets, the poor, couldn't get any (legal) credit. As the Parliamentarians were warned at the time. Far from helping the most disadvantaged, the only gainers were those who did not rely on legal process to recover their debts. The outcome?  Warrant sales were quietly brought back by a different title and all those involved in this lamentable episode sworn to a pact of silence. We're now seeing the same with mortgage repossessions.  It's all very well sympathising with those unable to pay their mortgage but if you make it almost impossible for the lenders to get their money back, as has been done by the Home Owner and Debtor Protection (Scotland) Act 2010, is it any wonder they'll be reluctant to lend to any "risky" cases in future? Who gains from that. Certainly not those trying to get a first mortgage. And who loses, certainly not the banks who will find safer investments elsewhere but rather those at the bottom intent on moving up. I confidently predict this is another piece of legislation that will quietly be reversed in the near future.

And as for what is now proposed for the Criminal Justice system? Corroboration, an essential and distinctive part of Scots Law since time immemorial, is to be swept away in its entirety by a momentary whim and without any evidence, other than a few loud voices, demanding such a radical step. Can I ask the simple question as to why, other than in relation to crimes where corroboration might be difficult to obtain, this is being even considered? We used to be proud of the fact that miscarriages of justice were much rarer in Scotland than in England & Wales. Has nobody paused to think why that might be the case?

Of course it's not the theory but the practice that's the issue here. But that is going to be my recurring theme.

And with that I turn to the argument that devolution meant greater local democracy. Of course it is better that decisions, when that's appropriate, are made in Edinburgh than in London. But it would also be better, where that's appropriate, that decisions should be made in Glasgow, or Dundee, or Inverness rather than in Edinburgh. Instead, since devolution we have seen a steady move towards centralisation. Not just in the effective abolition of local revenue raising and in the abolition of local police and fire services but in the micro prescription of central Scottish Office/Executive/Government standards on local authorities through statutory provision, making things mandatory, rather than suggesting them in a manner which, on cause shown, can be adapted to local circumstance. And, at the same time, local government has remained totally unreformed by the additional layer of governance arising from devolution. Outwith the Cities, neither large enough to challenge Holyrood in any meaningful way, nor small enough to be truly local. Doing anything about this is however dismissed as "too difficult" so the easy option is to do nothing. It's not that the powers aren't there, it's that there is no enthusiasm for using them.

And then there's the question of the Parliament itself. It might be easier to get to Holyrood than to Westminster but the flummery and security that surrounds the Scottish Parliament itself runs wholly contrary to what was envisaged back in the days of the campaign. It seems almost designed to give the elected members a feeling that they might be above the common herd but since they designed it, or at least acquiesced in it, one can only assume that's how they feel. It certainly isn't the Citizens' Parliament that we envisaged back in the days of all these draughty halls.

And again, the problem is not the theory, it's the practice. All this could be swept away in an afternoon. Instead, our elected representatives have decided to build a new, more exclusive, "Security Canopy"!

Which leads me more generally on to the issue of public service reform. What, above all, was the Scottish Parliament allegedly created for? To find Scottish solutions to Scottish problems. Now, let's just think about this logically. The Parliament inherited a public sector landscape bequeathed to it by Margaret Thatcher, John Major and Michael Forsyth. While in England the period 97-99 saw various reforming initiatives by the incoming Labour Government, quite rightly, after the Referendum vote the feeling was that reform should await the actual arrival of the Scottish Parliament. But when it did arrive did it set about that task? Not for even a moment. Instead,  it was concerned primarily with protecting the institutional legacy inherited from the Tories, albeit with more money to spend. Suddenly the status quo, Michael Forsyth's status quo (!) was deemed to be the epitome of the Scottish social democratic consensus. It was nothing of the sort. It was just the status quo. But nonetheless the only thing that was to be done to it was that more money was to be spent on those who worked within it. Teachers were paid more without any meaningful commitment to changed working methods. So were Health Service workers. So were those working in Local Government. and the Universities.. Even the one meaningful change, in public sector housing, was only got through by creating the fiction that it was being forced upon us from outside. Tony Blair might have acquired scars on his back but nobody in the Scottish Government was of a mind to take that risk.

Now this, for the first eight years and for the avoidance of any doubt was entirely the fault of the Labour Party and its deference to vested interest. But when the SNP came along, sure, they offered one really big change. Pending its arrival however they offered little or nothing else. And now that the money's running out they cling ever tighter to that one big change. Increasingly however, even then, their argument is not that this change is needed  so that anything will be different but rather it is needed as a "guarantee" that it can all remain the same! As it was under Michael Forsyth.

In this regard it is only right that I should say something about welfare reform. I am in favour of the complete devolution of welfare expenditure. Always have been. It would greatly assist the economic initiatives I deal with below. But is there anybody who seriously thinks that Scotland does not have a welfare dependency problem? That too many people are content to live hopeless lives in hopeless circumstances and that this neither good for society nor, at least as importantly, good for these people themselves. The changes to medical eligibility for Employment Support Allowance (as opposed to it's means-testing) may be being implemented by the Tories and (thanks to ATOS)  implemented with an unacceptable combination of ruthlessness and incompetence but they are changes legislated for by the last Labour Government! The Universal Credit, Iain Duncan Smith's unique initiative, is in fact a change welcomed in principle if not in the manner of its proposed implementation, by most agencies working in the field of family poverty. The change from DLA to PIP actually anticipates an increase in expenditure albeit not always to the same recipients. Yet the position of the Nationalists and of Labour's Holyrood group at least, appears to be, that if the Scottish Parliament had control of welfare expenditure, not that these changes would be happening differently, but rather that they would not be happening at all! The SNP have at least got the fiction that, merits aside, at least money will be bubbling out of the North Sea to pay for this. But us? No idea.

But at least that's not something currently devolved. As regards everything else, look at how much the private sector experience has changed since 1999. Tesco doesn't sell the same products in the same looking stores; the internet has transformed buying everything from music, to flights, to car insurance; eating out is a much more diverse, if not neccessarily cheaper experience. Choice is everywhere. Certainly people in Scotland are, probably, more committed to direct public provision than those in England. But to suggest that they, uniquely, wish it delivered in  a totally monlithic manner defies logic. Indeed, it presumes they would welcome the nationalisation of Tesco or Ryanair or the Gulistan in Kilsyth.. Yet monolithic provision is still all that largely is on offer in the Scottish public sector. That's not a Scottish solution. It's no solution.

Which leads me on to the other side of the equation. Devolution was meant to help economic development. Well, that's not happened either. Again the blame can be spread around. In 2001, Wendy published a strategy document "Smart, Succesful, Scotland." And, eh, that's it. A year later she was gone from the front bench. She was initially replaced by Iain Gray, which was, in itself, an indication of the priority Labour gave to the issue. Then, post 2003, it was downgraded further by being handed as a sinecure to the Liberal Democrats. Post 2007 there was a brief chink of light when Jim Mather, the first person since Wendy with something to actually contribute,  arrived on the scene. However, although he toured the country strong on analysis, he was short on actual proposals this side of independence. Whether that was his doing or dictated by the need to stick to a script written by others, in 2011 he left the Parliament altogether. Whereupon entered Alex Neil, a man who didn't have a clue what to do this side of Independence or beyond but at least, in post, solved a Party management problem for Eck. And then, finally, last week, we got Nicola, who's been given the job but only as her second responsibility.

Here's what was meant to happen. Devolved Parliament's can't create economic growth. Indeed, small sovereign Parliaments can't do so either. In the global age, even large sovereign Parliaments struggle to do so in isolation. Ask Mitterand. And no Government, small, large sovereign or subsisduary has ever created a single private sector job. They can only create the conditions which enable others to do so.

Here, I want to talk about a city, Modena, in my favourite country, Italy.

Italy's economic history is too broad a subject to discourse upon here. Suffice to say, beyond unification and through to the end of the Second World War, Italy was never in the first division of European economies. It lacked natural resources and although it had a number of major private sector employers, most notably Fiat and Olivetti, until the fifties, they, and even more Italy's SMEs, were targeted towards a domestic, or, in the case of the SMEs, local clientele. And then that all changed.

I want only to deal with one example of as to how. Modena.

Modena lies in the Emilia Romagna, the region of Italy lying between Lombardy and Milan to the North and Tuscany and Florence to the South. At the start of the fifties it was essentially an agrarian economy. But each of the large Cities had a local artisan community and in Modena these artisans were engaged primarily in the production of ceramic tiles. So, if you were in Bologna or Parma or Piacenza, you knew that. But if you were in Milan, or Rome or certainly in Palermo, you only had the vaguest idea. And if you were north of the Alps you had no idea at all.

And yet in the 1950s something remarkable happened. Modena became the principal supplier of ceramic tiles to all of Europe. How? Because the local authorities realised they had something they could take to market. They established, by generic marketing, throughout Italy and then throughout Europe, the idea of the excellence of their product; they anticipated the demand for skilled labour to meet demand by working with the local technical colleges and for white collar salespeople and the rest by working with the universities; they bypassed the sclerotic Italian legal system by creating a local system of arbitration; they provided on the ground, trusted and competent assistance in new markets; and they allowed the market to do it's work with innovation in design or manufacture delivering  temporary advantage for a particular producer before it was copied or leapfrogged by a  local competitor.

And because not of Modena but of twenty, fifty Modenas: In Parma, farm machinery; in Piacenza, pumps and storage equipment; in Milan, on a much larger scale, fashion and design. Because of their collective initiative, in the 1960s the European Country which enjoyed the greatest economic growth was not industrial powerhouse Germany, or ultra cool Sweden; nor, certainly, not, the "white heat" economy of Harold Wilson. It was Italy, albeit from a lower base.

Now the visionaries of Modena and elsewhere did not create that economic boom, they simply positioned themselves to exploit it. And they did not a single thing that could not have been done by a devolved Scottish Government. Yet hasn't been.

And before I move on, I need make one further observation. Today, you don't buy tiles from Modena. For in time they were undermined on price; first by the Spanish then by the Chinese. The solution however was not protectionism or simply grievance. It was to find a new product for a more affluent market: Balsamic vinegar. Go and have a wee look in your kitchen.

Wendy could see that Scotland's industrial future did not lie in trying to artificially preserve heavy lifting  labour intensive industries whose very first world labour costs would inevitably make them uncompetitive in world markets. It was in picking not individual companies but industrial sectors where Scotland already had an excellence and then helping them market to the world. And it lay in realising many of these sectors: bioscience;  vocational education; engineering design, coupled the simple ability to speak the world's language, English, could only be fully exploited by investment in superfast broadband, for the world wide web was as important a resource to the future economy as the new sub-alpine tunnels had proved to the tile exporters of 1950s Modena.

But, yet again, none of this ever happened. The problem was not the theory but the practice.

And (nearly finished) whatever happened to Wendy? She chucked it. Like Sam Galbraith, and Susan Deacon and Angus McKay and Cathy Jamieson and Margaret Curran and Brian Fitzpatrick. Sure, some of them lost their seats but they showed no interest in coming back. Any more than did Andrew Wilson or Duncan Hamilton or, dare I say it, Jim Mather. Or various other reasonably articulate Tories or Liberal Democrats. Even Eck, having come back after a sabbatical did so for the supposed purpose of securing an Independence Referendum, or at least of being First Minister. There is little reason to think he'd hang aboot once that was over, one way or the other, any more than did Jack.

I used to say that a Parliament in Edinburgh would attract a new generation of politicians looking to serve here and unattracted by Westminster. Instead we have an elected assembly of 129 of whom perhaps 50 can even make the sort of extempore speech expected of a first year trainee in my line of work. Again all the Parties are to blame to here and in the unlikely eventuality I was ever the leader of a Parliamentary Party I do not underestimate the value of lobby fodder. But back, again, in all the draughty halls of the 1980s, it wasn't intended to be like this. The committees were intended to be filled with people certainly of convinced Party allegiance but also of independent mind. Instead, it is difficult to think of a single example of a committee, in 13 years, requiring a serious rethink by the governing party, even on supposedly non-partisan legislation.

So, again the the problem is not the theory but the practice.

And that, before the witching hour arrives, leads to my final and most serious complaint.

I didn't get elected to the Scottish Parliament but I've been in the fortunate position of still having a decent day job. Not long after the 1999 Election I dealt with what had eventually become a freeing for adoption. It involved a wee boy who had gone to school aged five and palled up with another kid, as you do. One day, perhaps a month in, nobody turned up to pick this kid up from school but his pal's mum was there and after a bit of discussion it was established that he lived just round the corner. So the pal's mum took him back to his house. Only there was no-one to answer the door. So she took him back to her own house where, after checking there was still no answer at his door, she gave him his tea. By now, it was getting late so the woman phoned the Social Work department for advice but they advised her that since by now it was 7pm no social workers could reasonably be expected still to be at work at that ungodly hour and she would need to phone the Police. Which she did.

And they went to the wee boy's house and found both his parents insensible through smack. So the kid gets taken into care overnight although, the papers revealed, he was returned the next morning as the family social worker was "unavailable".

And later that same day the father of the wee boy went to the door of the woman who had taken in his child and given him his tea, and told her that if she ever brought the Police to his door again, her own, five year old, child would be sorry.

Now, that happened in, perhaps, 2001. But would it be any less likely to happen today? One suspects that in the meantime the only change would be that the unavailable social worker would have been given a substantial pay increase.That's the real failure of the Scottish Parliament.
 
And that's where, in the real world, the practice has not matched the theory.

Happy Birthday to me.

Heads of Oak

21st October is a famous day in British history. On that day in 1805, the British hegemony over naval warfare which was to last for the next one hundred years and privide the foundation for the (second) British Empire was established in a famous encounter off Cape Trafalgar. Each 21st October till today, that achievement is celebrated by the Royal Navy..

This year however it is also a date of modern significance, for it is the last day of the SNP Conference, supposedly the penultimate conference before an Independence Referendum. It is nonetheless probably too much to hope that, even if Eck and Angus Robertson  get their way, the SNP Conference will end with a resounding chorus of "Hearts of Oak".

Now, let's be honest, there would still surely be no better opportunity than 21st October to exhort the SNP faithful that the legal wrangling was over, that the campaign for Independence was underway, and that when they met again, two years hence, Scotland would have voted to have thrown off the English yoke forever. The standing ovation would certainly exceed even that which Eck enjoyed when he took it upon himself to impersonate Mel Gibson many years before.

Only, eh, that's not going to happen.

For today we saw the announcement of the Scottish Government Legislative Programme for 2012-13. And yet more obfuscation by the First Minister.

For what did he actually say? That the Scottish Government's response to the consultation on an Independence Referendum would now be announced "next month", a formulation that conveniently takes one, without a broken promise, successfully past Trafalgar Day and the unfortunate necessity of meeting up with a whole lot of people who genuinely want a Referendum. Even some deluded enough to think they might win.

Now let us be clear. This is a consultation for which there was no need in the first place. The SNP consulted the electorate on whether there should be an Independence Referendum on 6th May 2011. And they supposedly, by the rules of the game, got an overwhelming endorsement for that proposition. If they had announced that they proposed to steam full ahead none of the opposition parties could have objected to that with any credibility, even if they had been minded to do so.

Instead, the Nationalists announced they would launch a consultation, which itself wouldn't even start until the January of the following year and not close until May 11th. Nonetheless, by July 18th, the Deputy First Minister, Nicola Sturgeon, was able to announce that "The full analysis will be completed and published by the end of the Summer."

Now, I am as optimistic about the weather as any Scot but if the Summer hasn't ended well before October I'll be more than pleasantly surprised. Actually, by most accepted measures, I'd regard it as over already. Yet 31st October is now the new deadline, without any explanation, for the publication of the SNP's response.

What the f**k is going on here?

Eck needs to get past Trafalgar Day. For it remains his intention, in time,  to assert that "the Scottish People" are demanding a second question, no matter if the evidence of that consists of little more than the opinion of a few public sector placemen put up to it by his own office. For that is the one guarantee that he will be legally prevented from having any Referendum at all. Which he would lose overwhelmingly, and in the process destroy his Party and end his career.

But he is conscious that there are many in the SNP who don't care about that. Who want what, potentially, might be a once in a lifetime shot at glory. A bit like Eddie the Eagle at the Winter Olympics.

So he has to find a way past the SNP Conference. And delaying the Consultation response is his solution.

If he gets away with that, the SNP rank and file will have exhibited not hearts of oak but heads of oak.

Home truths from abroad

There was a bizarre shock horror story in the US liberal press over the weekend written by a left leaning journalist who had gained access to a briefing given by Karl Rove to high value donors at the Republican Convention.

I both despise and respect Karl Rove, for he is very good at getting right wing candidates elected.

You can guarantee that Axelrod and Plouffe and the other brilliant strategists around the President will not have been surprised, far less horrified, at what Rove had to say, for they will already have wargamed what they believe are their own weak points (on this occasion it certainly can't (just) be the economy, stupid) and tried to work out a counter-strategy. For only losers start from the assumption that their opponents will play "fair". Politics is, after all, a blood sport.

Now I say this because, even at this early stage, there is something weird going on with the Independence Referendum campaign. More naive elements aligned to the SNP are assuming they can dictate the terms on which it is to be conducted. They propose to make a positive case for Independence, even one based largely on the fantasy of lower taxes and yet better public services that might have come straight out of the Karl Rove playbook. We, as their opponents, "must", they insist, make a positive case for the Union.

They further propose that it is taken as a given that the worst possible form of government for Scotland is a Tory Westminster Government. And nobody is to make any attempt to suggest otherwise.

Finally, they claim that their official policy is for civilised dialogue about the nature of nationalism and sovereignty in a modern world, as if we were engaged in an academic seminar conducted by Pat Kane and Gerry Hassan, rather than in war to the knife.

Well, here I propose to let them inside the briefing room. I expect the same "shocked and outraged" response from my SNP readers as some more naive Democrats expressed about Rove. But, while maybe not quite in the Axelrod and Plouffe class, the people around Eck are more street wise. They've already wargamed this and realise that they do not have the counter arguments. That's why they are desperately trying to avoid having a Referendum at all. The good news is that the Tories are apparently coming round to imposing it upon them.

Point One. We'll be doing little more than making a default case for the Union. Independence would mean mass unemployment at the Clyde shipyards. And at Faslane and Rosyth. And RBS will relocate to England (it will of course remain in the ownership of the British Government) as will Standard Life and indeed most of the rest of the Edinburgh financial services industry (for who would want to hold their investments, or their pension, in an unstable foreign country). Americans are highly unlikely to invest in, or even visit, a Country hostile to NATO and indeed all inward investment is likely to more or less come to an end. Worried about benefit cuts? At least you're still getting benefits. It's difficult to see how anything other than subsistence benefits could be paid against the background of the mass unemployment Independence would create. Receiving, or hoping to receive, a British State Pension or a public sector occupational pension? Hard lines.
Working in the public sector? Only if there is money to pay your wages.

And then there's the cultural and demographic effects. A National Broadcaster where you only see what Alex Salmond wants, and even then only if he can afford it. A National Cultural policy that in its promotion of Scottish literature and music makes De Valera's Ireland look like Renaissance Florence. A massive brain drain as any young person of ambition, having escaped compulsory Gaelic in every school, will still have the portable skill of speaking English, at least for the moment, and will, if they've any sense, leave the Country at the earliest opportunity. After all, that's precisely what happened in Ireland.

And when the oil runs out? For the handful of poor souls still here, perhaps cannabalism?

Outrageous? Read the #bettertogether leaflets. They are but an opening, still reasonably civilsed, salvo against a background that most people assume a Referendum is still little more than a theoretical possibility. And already the Nats are calling foul.

And never forget, the reason that negative advertising is so prevalent in American politics is because..............

Point Two. Of course a Tory Government is not ideal but it pays your wages if you're in the public sector. Maintains law and order. Guarantees your pension or state benefit. And even when it is making a mess of the economy, it can still afford to do so. Anyway, we've had Tory Governments before, even Mrs Thatcher, and we're not actually starving. Who can guarantee the same if we let our hearts rule our heads and take a leap in the dark? And, finally,  Tory Governments can always be voted out. Once freed from the restraints of "British" civilised norms who can be sure Eck would be prepared to take that risk? And who'd be there to stop him? The Queen?

Point three. I've already made that point.

Sure, you can say negative things about the Union. But the sales pitch of Scottish oppression, relative British economic decline, evil English Tories (from time to time), involvement in foreign wars. They only preach to the already converted. And that's no more than 20% of the population. With a bit of a "sod them all" add on, you get to the 28% that remains my prediction if there is ever a vote.

That's still an awful long way from 50%. Which is why Eck is up to what he's up to.

Rumbled?

The Secretary State for Scotland, Michael Moore, made an important speech today.. Unfortunately, neither the Government nor the Liberal Democrats have made the full text available on the web, so I am obliged to Caron Lindsay, the admirable Lib-Dem Blogger for the quotation which follows.

Even the Scottish Government acknowledge that the Scottish Parliament’s existing power to pass an independence referendum Bill is questionable.

And the Scottish Government itself has said that it is willing to work with us to put that referendum effectively beyond legal challenge. Any Government that introduces a Bill that it knows to be – or that it thinks might be – outwith the Parliament’s competence, must expect a legal challenge to come. “On an issue as crucial as our nation’s future within the United Kingdom, the Scottish Government would have to anticipate that someone would emerge to challenge an independence referendum run on current powers. And a successful challenge would prevent their ballot from taking place. That’s no way to settle this issue. Scotland’s future must be decided at the ballot box, not in the court room. I am confident that on this point of principle also, Scotland’s two governments agree. An attempt to hold a referendum outwith the law would look like an attempt to ensure that there is no referendum at all.

In recognition of Caron, I have her retained her original colour, and her  emphasis, which would have been my emphasis, if not my colour, as well.

There was also an interesting piece (of sorts) by Steve Richards, the veteran Independent political correspondent published earlier in the week. Actually, I thought he rather defeated his own argument about the possibility of Scottish Independence when he suggested David Cameron wasn't paying this sufficient attention. David Cameron may be many things but he is not an idiot. If he thought there was any prospect of Scottish Independence he would be giving the whole thing more attention. You can draw your own conclusions from that.

But in the course of the article he reveals an important conversation.


" Before arriving in Scotland, I had assumed that if it looked as if Salmond would lose then he would find a way of not holding it. That is what leaders tend to do with referendums. A senior figure in the "no-to-independence" camp told me he thought that was still likely. The great conjuror would wave his wand and announce that because of the legal ambiguities – or any other excuse – the referendum would be delayed."

Now, and I will come back to this, I know that a lot of SNP Folk genuinely want an Independence Referendum, even those who are realistic enough to realise that (to their mind) they would still face an uphill task to win it.

Steve Richards himself follows the quotation above with the observation 

"But SNP activists I spoke to were adamant that his party would never forgive Salmond if he found a way of avoiding the poll. They have been waiting for this. They will not give him any space to contrive a postponement."

The question I ask tonight however is, if that is indeed the case, what exactly are these activists doing to make their view known?

I said some time ago that the key question for Salmond was not whether he would like a second question. Even his most ardent partisans would surely recognise that now to be the case. The key question is whether, if he cant't have two questions, he would still ask one.

Surely that is the question these activists ought to be asking because it is clear that is the choice Salmond is going to be faced with. And the question they should be asking at their Conference this October, for, before they meet again, Salmond will have answered it for them in a way over which they have no control..

Instead they are being played for mugs by being diverted into a debate over whether an Independent Scotland would be part of NATO. At the risk of stating the bleeding obvious, whether an Independent Scotland would be in NATO would be a matter for an Independent Scotland, not a decision made by one political party in the Autumn of 2012.

Now, the last time I looked, it was the policy of the SNP to have a single question referendum. So I would have thought that at least some members of that Party might want that to happen. Even if it meant that they couldn't ask another question that, even they, would, in an ideal world, for whatever reason, also like to ask.

I don't underestimate the power of a successful leader. Between 1997 and Iraq it was impossible in my own Party to defeat any proposal or strategy that had the support of Tony Blair, just as it was for "wet" Tories from 79 to 87. But, in the end, did either of our respective Parties end up happy with the outcome of that sycophancy?

So, if it is indeed the case that:

"his party would never forgive Salmond if he found a way of avoiding the poll."

Let's see some evidence of it. For, be in no doubt, that's precisely what he has planned.

Rape

Foreword

Last week was dominated by discussion of the crime of rape, prompted not just by some out the appalling comment from supporters of Julian Assange but also by the, frankly, deranged remarks of would be republican Senator Todd Akin.

Now it is in the nature of blogging that it is sort of predicated on commenting instantly. To the extent that I'm rather after the event on this that is not because I'm only now getting round to it. In fact, I started writing this on Thursday. It has however proved an exceptionally difficult task, not least in attempting to ensure that the analogy I seek to draw does not appear to trivialise or devalue the crime at the heart of my discourse. I'm not sure, even now, that I have entirely succeeded. I can only hope that it is accepted that I have proceeded with the best of intentions.

Some thoughts on the classification of crime.

Inevitably, crime comes in various degrees of severity.

Everybody would accept that a punch on the nose after a pub argument is a less serious assault than a premeditated attack with a baseball bat. That it is more serious to break into someone's house while they are asleep than to dip their pocket for a wallet.

Now, you don't do my job for as long as I have without seeing just about everything there is to see about the crime of rape.

It is commonplace on the internet to claim a wealth of experience before writing about any subject. I don't claim that. I could certainly write with more confident personal experience about the misconceived aims of the Misuse of Drugs Act. Nonetheless, over the years I've represented a significant number of men charged with rape. And not one of them has been the archetypal lurker in the bushes.

I've no doubt that such "lurking" crimes do happen but to suggest that they are typical examples is as absurd as suggesting that the "typical" murder involves the sort of pre-meditation and motive that you see on Inspector Morse. Most rapes are like most murders. Drink is involved (something from which lessons themselves might be learned). The victim, if they were being honest, would, with the benefit of hindsight, have conducted themselves more carefully on the night in question and the perpetrator is not neccessarily an inherently evil person, just someone who, in particular circumstance has behaved in a wholly unacceptable manner.

I've also got plenty of experience on the other side. Not just in handling Criminal Injuries claims but as a corollary to so much domestic violence in a way that is not yet, in my opinion, fully discussed in the public domain.

And, for the sake of completeness, I should also say that twice, memorably on both occasions, I have represented women who have made (by their own subsequent admission) false allegations of rape: the first when trapped between family expectation and the truth of how she herself, in the hormonal excess of youth, had behaved; the second, albeit against a background of mental health issues, in a quite considered and malicious manner.

So, I have no illusions about these matters. Legally, rape is a messy crime. The essential actus reus (as we lawyers put it) is an activity routinely engaged in voluntarily. No sane person, on the other hand, has ever consented to being stabbed with a table knife or hit over the head with a Buckfast bottle.

But rape is a serious crime for good reason. And in all circumstances.

Obviously the victim of the lurker rapist suffers a traumatic experience. Any common assault by a stranger is traumatic enough. But when some seek to categorise that as automatically a much worse ordeal than a rape  perpetrated in a social setting by someone already known to the victim, it seems to me that they misunderstand the consequence of being the victim of crime.

Now here such is the eggshell territory on which I tread that it's important that before proceeding I acknowledge that the victims of crimes of dishonesty are seldom as seriously harmed as the victims of crimes of violence. "Who steals my purse, steals trash" as the Bard has it. Nonetheless, I would like to draw comparison with two other crimes: Street robbery and embezzlement. Both are thefts. One might involve a few seconds, a punch to the face and the forcible deprivation of your property. Terrible as a victim. But is it any worse than someone being embezzled of money, usually by someone in whom you have invested trust over a long period of time?

Not in my opinion, because even though in the latter case there has been no violence, there has been something worse, a breach of trust. We all conduct our day to day activities on the assumption that those around about us will conduct themselves within certain perameters of trust. Once that trust is broken then it is broken not just in relation to a specific individual, it is broken in relation to the world as a whole. So just as embezzlement undermines that trust in a way against which the amount actually stolen by the particular crime might, to the world, appear trivial, so does, in the aftermath of rape, a similar breach of trust leave behind a constant fear. A fear that if, in future, you do have too much to drink, or are not constantly on your guard as to who you might flirt with, or even with whom you might engage in a kiss or a cuddle, then a very unpleasant experience indeed is likely to be repeated. And that absence of the assumption of trust is surely more difficult to overcome than the idea that you might, logically improbably, on some future date be attacked by a (different) complete stranger.

But there is also something else which makes the victim of street robbery and the victim of embezzlement subject to different but not necessarily a relatively more or less unpleasant experience.

There is nothing personal about street robbery. Its perpetrator holds no individual animus towards its victim. But embezzlement, by its very nature, requires the perpetrator to know the victim. Indeed to be trusted by the victim, indeed often to enjoy the assumption that the perpetrator and victim are friends. In the aftermath of that crime the sufferer will find themselves wondering what they had done to deserve such animus, possibly even wondering if they had somehow brought the crime upon themselves.

So, equally, does the victim of rape at the hand of one already known to them and, probably, trusted at least to the extent of giving rise to the circumstance in which the crime could be committed at all.

No two crimes are the same and there is aggravated rape, I defy anyone to say otherwise. The use of extreme violence; the repetition and/or duration of the crime; the abuse, perhaps, of a position of authority in its perpetration; the exact nature of the sexual assault. These all have the effect of escalating the seriousness of the crime.

But the assumption that rape "in a social setting" is automatically less serious than the attack by the eponymous "lurker" seems to me to be a wholly fallacious one. And the assumption that a crime committed in the former circumstance might not be a crime at all is an utterly unacceptable position.

That does not mean that each of these crimes will be as easily proved beyond a reasonable doubt, as must surely remain the case.

As I write, Julian Assange is innocent. He has been charged with nothing. He is merely wanted for questioning. And even if charged, he will remain innocent unless proven guilty. In that latter regard, bluntly, as a lifelong defence lawyer, I would relish the prospect of cross-examining the complainers against him, given the alleged facts as to their subsequent, ex post facto but pre complaint, conduct. And, as I've tried to demonstrate empirically above, I certainly would not start such a defence from the assumption that false allegations are without precedent.

But, and this is the but, if these women are telling the truth, let us be in no doubt that a crime, a serious crime, has been committed. Not the "crime" (for it would be no crime), of consenting to sexual relations which they later regretted, but rather the crime of being forced to engage in a sexual activity to which they had never consented in the first place.

Now even that, and I don't apologise for saying that this, is likely to have been a significantly different experience than being jumped on out of the bushes by a complete stranger. But then so, as I've said above, would have been being knocked over and robbed in the street as opposed to, for example, learning that the golf partner to whom you entrusted your life savings has decamped to South America. Nonetheless, on each occasion, surely nobody would seriously argue that the law had not (allegedly) been broken. And on each occasion that the victim would have been....a victim.

So let's not underestimate the difficulties, in certain circumstance, of proving this most difficult of crimes. But let's not stop trying.

An Invitation to be sued

I have written previously about how much I enjoyed Andrew Nicoll's book "If you're reading this I'm already dead" For the avoidance of any doubt, this is the same person who masquerades on twitter as @andrewsnicoll and, to make ends meet, is also Andy Nicoll, Scottish political correspondent of the Sun.

His two previous books "The Good Mayor" and "The Love and Death of Caterina" had their respective merits; actually the second is much better than the first, being, very nearly, a great book.

But while in all of his books he creates great characters in the first two books the characters had their hour upon the stage and then passed on into memory.

His third book however created the same great characters and then left them out at sea and on an unknown course. So I wrote, or at least tweeted, that his readers, or at least I, demanded a sequel. To which his response was not only that there would be no sequel but that he had stopped writing altogether.

So I threatened him that if he didn't write the sequel, I would do it for him. And he responded by threatening to sue.

And that's where we'd got to when I sat down to write tonight.

All the characters that follow are his characters (I say in mitigation of damages) and the writing is no more than pastiche. Actually, all I'm hoping to do is to turn the faucet in the hope it might assist a man with a prostrate problem (for the avoidance of doubt, and again mitigation of damages, that is a general and not a specific analogy). Otto, and Sarah, and Tifty and Max can't just be left there. Go on Andy, write the sequel!

The First Chapter of the Book Andy Nicoll ought to be writing

“Raus, raus, raus”.

Contrary to every expectation an hour ago, he had fallen asleep. But he was suddenly awake now.

At a different time and place he would have taken some time to gather his thoughts but this was neither the time nor place for such hesitation. With a speed that belied his years, if not his former status as a circus acrobat, he leapt from his bed and took himself to be presented at his door.

Outside, it was not the rain which drew his attention, or the scene of utter devastation which lay before his eye. They were both wearily familiar.

Rather it was the scattering of field grey uniforms advancing confidently towards his run down caravan.

Although he had already patently “raused”, this action was clearly insufficient for the figure in the lead of this group to cease his demands. He strode angrily towards him, pushed him roughly to one side, and while continuing to shout loudly, stormed (yes, that was undoubtedly the word) into Otto’s home.

Within a few seconds, he re-emerged. “Are you harbouring any deserters?” he demanded. Now, it is difficult to imagine where such miscreants might be have been concealed within the caravan’s six square metres but such an observation by Otto would have been ill-advised in the circumstance. Almost as ill advised as confessing that there were indeed the remnants of the 23^rd Panzer Division hiding under the floorboards.  So, with a quick glance at his interrogators insignia, Otto replied “Certainly not! Herr Oberleutnant.”

“Have you seen any deserters?”

Now this was a more difficult question to answer, for who by now had not seen those who might at least be strongly suspected of such a status? The War was lost. The only hope remaining was that the Americans might arrive before the Russians. Or, indeed, that either might arrive before the British bombing made the question personally irrelevant. But it wasn’t just the little man with the moustache who was in denial about that reality. And his questioner might just be one of them. If only the deserters could be rounded up and driven back to the front (or at least shot) and despite all evidence to the contrary, surely the tide might yet be turned.

But to admit that deserters had been seen would open one up to apparent sympathy with their actions, while to deny it would surely only expose you as a liar. And people had been shot for less. Either way.

Fortunately, Otto’s hesitation was his own salvation. Or possibly the Officer’s own realisation that his question was rhetorical. For it was the soldier that spoke next.

“How long have you lived here?”

“In this caravan, or on this site?” Otto replied, realising at once that this was a mistake.

“You are not a gypsy?”

“No, certainly not, Herr Oberleutnant  “

Otto had always liked gypsies. He liked their disregard for authority; their colourful clothing; their wild music. He had enjoyed their company on many occasions. But he also knew that it was a long time since he had seen any gypsies in Germany. And that it was unlikely he’d be seeing many of them again.

“You don’t look like a gypsy (inwardly, Otto sighed with relief) but why are you living in a caravan?”

“I was a circus acrobat” Otto replied. He could also have added that he had once, briefly, been King of Albania but that was also something for which this was neither the time or place. “When the circus broke up, this was all I was left with.” This and a horse which had died of starvation some weeks ago and was then butchered and eaten within the hour by once respectable house fraus who had descended upon it as if mannah from heaven. But that was also information he did not need to impart.

“In Germany?” Again his possible gypsy origin loomed into view.

“Yes, Herr Oberleutnant, And in the wider Reich.”

This seemed to satisfy the questioner who suddenly lapsed into reminiscence.

“I have not been to the circus for many years” as if that was a leisure activity he might recommence that very evening. “Do they still have camels?”

It was odd the extent to which so many Germans loved camels. For, frankly, what use was a camel to a circus? It couldn’t, or at least wouldn’t, do tricks. It didn’t scare you with the thought it might escape. It wasn’t even nearly as efficient as a horse at running around at speed, at least within the confines of a circus tent. Nonetheless, Otto had once had just about the best meal of his life in Vienna in the curiously  named Schwarzen Cameel, courtesy of a Jewish psychiatrist who, he had realised just in time, was not so much interested in getting inside of his mind as getting inside another part of his anatomy altogether. Where was the Herr Doktor now? That thought jerked him back to the present.

“I’m sure they do Herr Oberleutnant, but I have left the circus.”

“To do what?” The note of suspicion seemed to have re-entered his voice.

“To survive, Herr Oberleutnant “

The officer paused. “That’s a pity, for a camel might have provided my men” and at this he gestured towards his command which seemed to consist, in reality, of two or three schoolboys and one veteran who looked even older than even Otto himself, “with a good meal”. With that he laughed at his own joke, if that is what it was, and signalled that they should all move on.

Having cautiously watched them walking away, Otto re-entered his caravan, lay down on his bed, and, with the relief of a man saved from the thought that he might have just escaped that very state more permanently, promptly fell asleep.

_____________________________________________________________________________

“Can’t we eat the camel?”

It was indisputable that Tifty Gourdas, one time Magyar Countess, had a magnificent chest. Otto was at least as appreciative of that as the next man. But it was equally indisputable that she had the most  annoying voice.

It had to be admitted that Otto Witte, sometime, briefly, King of Albania had not anticipated leaving his realm quite so abruptly. And that thus he had failed to instruct the retainers temporarily at his disposal to adequately provision his boat for such an eventuality. Never mind the boat that, if not exactly his, was nonetheless now bearing him and the fellow survivors of his temporary experiment at Kingship across the waves of the Adriatic and towards an uncertain future.

It was hardly his fault that, seized of the opportunity provided by his uncanny resemblance to the man truly in line for the position, he had attempted to seize the Albanian throne. Or that the Albanian Treasury he had come to plunder had consisted of no more than a few chests of paper for which the mysterious Englishman, Arbuthnot, who had joined their expedition, could find no better use than lighting his cigars. Or that Professor Alberto Mesmer, the father of his one true love, Sarah, had been killed in the process.

Actually, that last was the one thing that was not in any way his fault, but it was the one thing for which he was most truly sorry.

“I wish she would be quiet” said Sarah as she moved even further away from him than might have seemed possible in what was an already a very small double bed. Through the night that had passed he had tried to console her without resort to the physical exhibition that would have undermined  his own now established affection. But just as he thought he had succeeded, Tifty’s intervention had recalled both of them to the reality of their location. Somewhere, God alone knew exactly where, off the Albanian Coast, with no money, no food and, in Sarah’s case, not even any father.

“I’ll go up” he reassured her.

As he emerged on deck it was not however Tifty that he first encountered.

“Otto”, it was Max, in all senses his strongest friend. “Tifty is hungry. I am trying my best” and with this he gestured hopefully to the fishing rod he had dangling over the side of the boat “but she wants to eat the camel.”

“Don’t be ridiculous” he responded seized not only with affection for the animal which had accompanied them all the way from Budapest but also with the impracticability of capturing, never mind slaughtering, such a beast on the deck of a small yacht bobbing about the Adriatic. “Where’s Arbuthnot?”

Max nodded towards the stern where the Englishman, apparently immune from the need to sleep, was tending the tiller with one hand while adjusting the sails with the other. Otto made his way towards him.

“This is just wonderful, my dear fellow” observed the Englishman, waving a suddenly free arm over the azure sea, “like Cowes in the very best of weather. If only the late dear Queen could be here to see us.”

Quite how and why Arbuthnot came to be in their company was something of a mystery to Otto but he had his suspicions that Arbuthnot’s activities might not be quite so entirely independent of the British Imperial authorities as he himself maintained them to be.

“We have no food” said Otto, in an attempt to bring matters somewhat down to earth. “and we certainly can’t go back to Albania, where we’d be hanged, or even put in further up the coast where the Austrians would undoubtedly arrest us before hanging us later.”

“Nil desperandum!” To date Arbuthnot and he had been speaking in common German so he was a bit taken aback at this lapse into Latin, albeit at such a basic level that even he could comprehend. “As you and Fraulein Sarah slept, I have set a course not North but North West, towards what was once the most serene Republic, the Jewel of the Adriatic, the City of Lights.  Where, between you and I, we can only hope we will arrive long before the Baroness causes our dromedary friend to expire out of sheer annoyance.” 

And at that, with an unexpected yelp, he was distracted by Max, who had caught on his line the sustenance that was, as it transpired, to keep them alive until that legendary harbour was reached.

While I was gone

As you may know, I have spent the last three weeks in Italy. Near Lake Trasimeno, between Perugia and Siena.

Now, I'm afraid I've never been one of those who subscribe to the view that "you can't beat Scotland if you could only get the weather."

If I'm going to spend my holidays in the countryside then I don't just need it to be dry, I'd prefer it to be warm as well. And for there to be something to do except look at the scenery. And to be able to eat well. And to do so, if so inclined, after 9 p.m. Indeed, to be able to do anything, except drink, after 9 p.m.

All of this, I am pleased to say, I did this year in spades; visiting old haunts and new; taking in a very special Signorelli exhibition in Perugia which was so good that it caused me, half way through, to cancel a Sunday Lunch reservation by the lake; hearing the Barber of Seville in the open air; even, thanks to our youngest guest, seeing the new Spiderman movie, in Italian, in a similar setting; reading, and listening to music, and sleeping and even having the occasional swim!

And above all, over and over again, eating the most wonderful food, both at table and, thanks overwhelmingly to the key fact that ingredients are everything, when it had to survive my own culinary interventions.

And all the while, other than last Monday, when (during lunch and after seeing for the umpteenth time the Cathedral in Orvieto that the late Norman Buchan described as the ultimate test of conviction for any atheist) there was a brief rain shower, the sun shone out of an azure sky almost unimaginable here.

So you will gather that I had a good time.

But I'm back.

That was and is an odd experience in itself.

For the last several years we have returned on a late flight, meaning that when we reached home there was only the time to have a proper cup of tea (the one area where the Scottish experience remains infinitely superior) and then to go to bed. Somehow that meant that when you woke up the next morning it was easier to accept that you were back among the (Scottish version of) Fifty Shades of Gray.

This year however we had a morning flight, meaning we were back home just after two in the afternoon and I must say I found that a somewhat disorienting experience. For, once you've checked the house and the mail, and started on the long cycle of clothes washing such a return entails, what do you do then? I took myself off to Tesco but even there found myself wondering whether it was here or there we had nearly run out of olive oil, passata and toilet rolls. I even found myself pondering over which bottle of Fanta to buy before recollecting that in the absence of temporarily accomodated ragazzi, wee Mo and I alone had no requirement for Fanta at all.

The one thing I didn't have to do, as was a requirement when I first returned from the same location 24 years ago, was to phone round family and work colleagues to check there was nothing I needed to know had happened while I was away.

For, of course, thanks to the modern wonders of technology, and, perhaps only for for good or ill, you no longer are "away" to that extent.

So I already knew that there had been no major developments in my professional practice during my absence. And that such relatives as I had remain alive and well. But I also knew about Iain Davidson on Newsnicht; and Martin Sime and Willie Rennie; and the bizarre events surrounding Joan McAlpine denouncing the legal conclusions of the Scottish Affairs Select Committee in apparent ignorance of the fact that Eck and his Ministers were, in their Consultation Document, of the same (legal) opinion. (It's a high bar but she must surely be the most ignorant and ill-informed member of the Scottish Parliament to date.)

On any view however the most important thing that happened while I was lotus eating was the London Olympics.

Oddly, I don't mean in the context of the Scottish Constitutional Question. The Olympics don't make it less likely that Scotland will secede from the Union since there was never any prospect of that happening anyway. The only thing that it might have done was highlight the extent to which, in these isles, the sum will always be greater than its parts, That's's only going to drive down the separatist vote further from what was already a hopelessly losing position.

No, the Olympics was much more important than this present Constitutional fandango.

In one of my very first  blogs I observed that the Olympics would prove to be either "an occasion of metropolitan folly or a unique British triumph".              

Who would now argue it was anything but the latter.

The only bit of it I saw in this Country was the opening ceremony but, although I approached that as cynically as anybody,  by the end the only reason I hoped it would ever conclude was because I needed to get up at 5 am  to go on holiday the next day.

From Italy, I relied on twitter and on RAIdue and from the latter you might have thought that the entire Olympics were little more than an extended fencing competition (the Italians being rather good at fencing).

But, for all the earlier and later achievements of our own cyclists, rowers and others, and even the boy who succeeded in being cheered at Parkhead when he appeared on the big screen draped in a Union Jack after his swimming Silver Medal, the two nights that changed this country were Boyle's opening event and the night of Saturday  4th August when after the imperious triumph of Jessica Ennis and the unexpected victory of Greg Rutherford in the high jump, Mo Farah won the 10,000 metres.

I watched that in Italy with the absence of the hysterical commentary that, perhaps understandably, accompanied this event back at home but in that final lap with the illogicality that assumes such a sentiment might carry 1500 miles I found myself shouting at the telly "Come on Mo!" And somewhere in my deep subconscious I knew that across the Home Counties retired Colonels would be expressing similar sentiment; and ladies from the WI in North Yorkshire; and white van men in pubs in the east end of London; and indeed here in Scotland, an awful lot of people who would profess themselves publicly hostile to any English sportsman.

Kathleen Grainger and Chris Hoy and Andy Murray made great contributions to the British Olympic effort but despite Farah's own contemptuous dismissal of the question at the next day's press conference, when I read of the arse who there asked if Farah would not rather be running for Somalia, I found myself wishing for the presence of one other great Scottish archetype, the hard bitten, and hard drinking, Scottish sports journalist who might have got up, crossed the room, and put the heid on the questioner.

For the thing about (surely, shortly) Sir Mo Farah is that he was once a Somalian asylum seeker, and that he has always been a Muslim. But that he has embraced this Country and that, in turn, this Country has embraced him. And that's not so much  an important change as an important recognition on the part of those previously in denial, from the right and the left, about such a thing being possible.

Among the various breakdowns of the origins, regional or "national" affiliations, even gender, of our numerous medallists, nobody has been so indelicate as to comment overtly about their disparate skin colours and it is right that they haven't but it is also right that we should observe, once and for all, that to be British you do not have to be white. And that the sort of Country that can make that acceptance is not a bad place to live.

Now, if only some people would realise that, just as you don't have to be white to appreciate being British, then you don't have to be English either. Then, perhaps, Scottish politics could move on.