Answer the Question!

I might do a bit of blogging but I also have a proper job.

And it is from that proper job that I draw my theme tonight.

In the course of today I had a conversation with a social worker in relation to one of my more important current cases due shortly to come to Court. Without going into too much detail it relates to a matter in which she previously had a long term  involvement and had taken a view advantageous to my client. Only she was no longer involved in the case and her successor, of much less experience in dealing with the matter, had chosen to take a very different view. A view, shall we say, not nearly as favourable to the interest I had been engaged to represent.

So it was obviously of importance to me, and my client, to know whether the first social worker agreed with that change of approach. In pursuit of which I had written to her asking her to contact me. Which she had singularly failed to do.

Accordingly, the Court date looming, this afternoon I phoned her.

And, initially, perfectly politely, she advised that she was not willing to speak to me. It was no longer her case. But I pressed on. "But surely you still have an opinion on it?"

In response she as good as admitted that she "could not" be seen to disagree with her colleague. So she did not want involved. Now, would I please respect her wishes?

But, of course I could not respect her wishes. For my duty was to my client. If, as was her privilege, I conceded, she did not want to give me her view directly on the phone, then I would simply cite her to court.

"Well obviously I would have to attend" she in turn accepted "but then I will simply refuse to answer your questions."

"Well, we'll see what the Sheriff has to say about that" was my parting observation.

For that is how my job works. I put witnesses on the stand and, assuming my questions are competent and relevant, then they have an obligation to answer them. And if they refuse to answer them I can appeal to the bench, who will direct the witness to answer or end up in jail.

Now, I am moved to observe that this is very different from the trade of politics and the broadcast media. The broadcast media do not have anything other than moral authority to require any politician to appear before them. Patently, they do not have the ability to "stick" their chosen "witnesses" with a citation and obtain a warrant for their arrest if they fail to attend. But more distinctively still, they do not have the ability to insist that their questions be answered.

For there is no arbiter. No third party to observe that a question has not been answered and then in turn insist that it is. There might be any number of viewers or listeners shouting over the airwaves "Answer the question!" but none of them, unlike a Sheriff, have the simple power to direct of the prevaricator that he or she answer or be "taken down."

And, even then, in broadcasting, there is the limitation of time. In a court setting there is no need to worry about that. But on the radio or telly both witness and interrogator know that in another three minutes or so there will be a need to go to the sports news or the traffic news or the weather.

Quite differently, if a witness in court wants to waffle on for ten minutes providing no answer to the question then, once they have finally run out of breath, you can simply ask the question again. And, if needs be, again and again and again. Until finally you can turn to the Sheriff and request "I wonder if your Lordship/Ladyship might direct the witness to answer?"

When, so directed, I say from experience the witness slowly realises that the stakes have now risen beyond their ability to keep this evasion up and on to the territory of their future liberty. And, if they don't realise that immediately, they are most certainly alerted to that from the bench if they attempt another waffle. At which point generally proper answers are forthcoming.

Now, I am prompted to these observations by two recent developments in the independence debate. The first is the most recent blog of my fellow, if much more distinguished,  lawyer, Professor Adam Tompkins. There he asks three reasonably straightforward questions of the SNP.

(Actually he asks five questions but two are insufficiently focused. That's the difference between a distinguished academic and a mere hack trial lawyer. Never mind that the other "two" questions are actually the same question)

1: how would an independent Scotland fund the Scottish fiscal deficit: by implementing spending cuts of £2.5bn, by increasing taxation by this amount, or by borrowing? 

2: if the Scottish Ministers do not accept that it would cost an independent Scotland £1.5bn to establish the institutions and public services it would need, what is their alternative figure and how has it been calculated?

4: how is Mr Salmond’s new immigration policy consistent with the commitment given by his Government in the independence White Paper that “there will be free movement across the border between Scotland and England”?

These are important questions but I mean no disrespect to the Professor when observing that none of them are new questions. Nonetheless the broadcast media have been unable to secure an answer to any one of them in the more than three years since this whole debacle started.

Just as I might add a sample question of my own.

6. if negotiations for continued EU membership are not concluded by 16th March 2016 would independence still go ahead on that date even if that meant leaving the EU? 

Never mind the bloody obvious question, also  never answered

7. if ruling out a Currency Union is not a bluff, what currency will we use?

So that is the first development. 

The second was John Swinney's interview on Good Morning Scotland yesterday morning. He was asked eleven, or arguably thirteen, times what would be the transitional costs of Scottish Independence?  And eleven, or thirteen. times he declined to answer. Before they had to go to the sports/traffic/weather news. But at no time did he say he didn't know. For, even in the forum, simply, of the broadcast media he remained aware that prevarication was a lesser crime than perjury.

However, although neither of them can claim the distinction of being lawyers, today, in the Parliament, as Senior and Junior Counsel respectively, Ruth Davidson and Willie Rennie got as close to getting an admission of guilt from his co-accused as might have been possible under the auspices of a bent judge in the chair. 

For Salmond as good as conceded that the SNP do know the transitional costs of independence. They had asked that question of their Civil Servants and presumably had been provided by them with an answer. An answer that would reveal  how much money that might otherwise be available to combat child poverty or early diagnosis of cancer or educational underachievement would, in Salmond's opinion, be much better spent on a flag.

So let's have Mr Swinney back on Good Morning Scotland. And, while a Sheriff to direct him might be too much to hope for, let's ensure that the Sports/traffic/weather news waits until he answers the question.