The Reality of Politics

…or why I’ve accepted I need to get a hair cut.

Remember 1999 (I don’t I was 6 at the time, but bear with me)? The Scottish Parliament was just about to come into being and it was the dawn of a ‘New Politics’. MSPs wouldn’t face-off against each other, but would sit in a semi-circle. We wouldn’t have the confrontation of the old ways, but we’d be a lot more consensual and work together to get the best deal for Scots. A PR system would mean that all our voices would be heard – SSP, Greens, Scottish Senior Unity Citizens’ Party (seriously – 6th most votes in 2011) would be a presence in the Parliament. Committees would make MSP’s put their party political selves aside and work to ensure the best possible legislation came out of Scotland’s Parliament. It would be the start of a New Politics.
Today, Scotland is possibly the most polarised it’s ever been. While the SSP and Independents have had some limited success (as in the much celebrated 2003 ‘Rainbow Parliament’), in 2011 only 3 seats were not won by one of the 4 main parties. Committees, all agree, have failed. MSP’s have proven unable to set aside their party-politicalness, leading to minimal scrutiny and, in some cases, extremely questionable behaviour. It seems that, really, nothing much has changed.

Remember 2010 (I was here for this one)? For the first time in almost 50 years, a coalition government was a real possibility. The Liberal Democrats, the minorest major party, were a major player. The old dichotomy of Labour and Tory would be broken. Everyone was clambering over themselves to “Agree with Nick”, who was the face of a new way. It would be the start of a New Politics.
Today, we have a Tory Government and are preparing for one that will be led (or made entirely) by Labour. The Liberal Democrats will be lucky to stay above 20 seats. Even Nick Clegg, who has gone from triumphant to traitor, is at serious risk of losing his seat. Even those in his own party are finding it hard to agree with Nick. It seems that, really, nothing much has changed.

Remember 2014 (I’d hope so)? Scotland has gone through the biggest decision of its history. Almost 85% of the country turned out to decide whether Scotland should go independent or stay as part of the UK. Even after the vote, there seemed to be a dawn of something different. The SNP tripled it membership – and it’s new leader led packed out The Hydro with activists. Those newly invigorated folks were going to change the way politics was done. The feeling of the grassroots-led Yes Scotland (which lost the referendum) would set the mould for the future of Scottish Politics. People Power and not Professionalism would be the way from now on. It was the start of a New Politics.
Today, people seem to be shocked that political parties still like to retain some control over their election candidates. It’s as if party leadership wouldn’t want a guy who said that No voters (the people that party needs to reach) were “so stupid [he was] astonished that their cerebral cortex can transmit a signal that sparks respiration. They are probably not capable of ever noticing their error.” or that were “either evil, or quite extraordinarily thick.” They can’t believe that only the party that really represents Scotland would dare try and fight the people’s will. It must be “establishment stooges” or “unionist agents”. It couldn’t be that a political party knows what it needs to do to win elections (which it has done very well since 2011, and looks set to do again) and others just have to bow down to that wisdom – even if they rather wouldn’t. Because, if that was the case, it would mean that, really, nothing much has changed…and it couldn’t be that.


@loveandgarbage 2014 Christmas (not so) Live-Blog

@Loveandgarbage has launched his annual “What did I get for Christmas” Quiz.
He’s tweeted a barcode for a hint:

Throughout the day(s) we’ll be updating this blog on progress. – The original quiz was solved by @ChrisBrookes. It was “The Happiest days of your life”.

Now there’s a game of charades.

1655: The first word has one syllable and the title has no punctuation in it.

1650: Just when I thought it was safe – we’ve got a game of on-line charades on the go. All that’s known is:

1227: Just a reminder to people that it’s not The Best of Lynard Skynard, It’s a Mad, Mad, Mad, Mad World nor The Cybermen Collection from the Doctor Who range of compendia.

1224: Since we’re (kinda) live-blogging the quiz, I’m marching on until it’s over or ended. If you’re still wanting to take a guess, @nuttyxander offers you some help on how to ‘read’ barcodes:

1219: Well done to @ChrisBrooke who got the right answer first. Also congratulations to Scottish Twitter favourite @HelenMilburn, who was about 10 minutes behind. You both win #NaePrizes.

1215: WE HAVE A WINNER. “The Happiest Days of Your Life” – which you can get a bit more info on here. But that’s not over. Tradition dictates that the quiz goes on until people stop guessing…we may still be here for a few hours.

1213: Very long “ooooh” here. Bells of St. Trinians could be significant…maybe? Then again…maybe not.

1159: Joyce Grenfell features (but to what extent is unknown).

1156: it’s CONFIRMED that its not a Tour DVD of a Modern Comedian. ALSO, it may, be a Doctor Who DVD (but not the series 8 box set), but specificity is needed.

1154: people are STILL moaning about the barcode. The barcode’s a run-of-the-mill, bog standard bar code. Deal with it.

1153: No-one has yet mentioned “The Rutles and All you need is Cash“. More on this situation as it develops.

1150: Fridays may come into it generally, but a tough line’s now being taken on “general guesses”. Keep with the spirit of the game folks, please.

1146: In a BIG CLUE: The DVD was released in 2009.

1144: It’s not a biopic.

1140: We also now know it is a UK production with a UK cast. Also, something’s going to happen after a week…but the asked has their tweets on private – so that can be a wee sub-game is you like.

1137: It’s also not glee.

1136: Well, prunes aren’t a feature of the DVD, and he doesn’t think it’s based on a work of literature. If he’s wrong about that though, we may have grounds for appeal.

1132: Hello everyone. It’s just shy of 12,so it’s time to restart the “@loveandgarbage “What Did I Get for Christmas” Christmas Quiz 2014″. Guesses have been rolling in from about 9am this morning so lets see what went on.

Day 2 – 26th December 2014

End of Day 1

2306: The quiz is done for the night, so I’m gonna shut the blog for the night too. I’ll be back tomorrow to see if we get any further. I’ve been @pashanky, and now go and enjoy Christmas.

2239: But remember, it keeps going until it’s guessed…and possibly a little longer.

2234: It’s closing in, but not looking likely to be solved tonight, but a reminder that it is doable!

2227: Finally for now, it’s possibly a comedy DVD (but no guarantees) – but not a comedian’s tour DVD.

2219: What’s also known is that it’s at least a year old and something @loveandgarbae asked for.

2216: It’s not Spanish. This much is known.

2213: I’m back after my Christmas Dinner and post-Dinner Scrabble Game (I won). Let’s see where we are.

1643: For avoidance of doubt, its a EAN-13 Barcode…because some people were confused by a picture of a barcode.

1639: Someone tried to get clever though “duality of textual suggestion”.

You know what we say to that…

1537: It seems that the first signs of Hysteria have set in. Some poeple are now literally naming the Barcode.

1423: I’m post soup now, and still no good guesses.

1334: It’s a single DVD. That’s confirmed.

1329: We know it’s not Fly-fishing by J. R. Hartley, a box of Tampons, nor a Plastic version of Alex Salmond.

Defending Misers…

…or why we should all be a little more #TeamScrooge!

I love Christmas. I am all for Christmas. I own a Christmas waistcoat. I am very proud of it. My friends are not. I don’t care.

I also love Christmas films. Everyone has their favourite Christmas film. My brother’s is The Grinch. My Dad loves the classic ‘It’s a Wonderful Life’. My Mum really likes Miracle in 34th Street (the original one, not the other one which, I think we can all agree, was a mistake). Mine, however, is a film that will go down in the annals of history as a timeless classic. A Muppet’s Christmas Carol is, by far, the best, Christmas film of all time.

Not only do you get the wonderful story from Charles Dickens, you get it told to you by the ever aware Gonzo and questioning Rizzo. Also, Kermit the Frog puts in a star-turn as Bob Cratchit. Add in some great tunes (including the always-cut-out-of the-Channel-4-showings “The Love is Gone“) and you have a classic.
Being such a great film, I watch it every Christmas Eve to get me in the mood. But this year, I realised something. I’m wanting Scrooge to heed the spirit’s warnings about his impending eternal damnation, because he is a bad man that won’t even give his staff Christmas Day off. But, like so many problems people have, we never really think about the issues behind it. And when I thought more deeply about Scrooge’s Scroogieness, I realised that I’m on his side.
This may seem mad. Anyone who knows me I am the polar opposite of old Ebenezer, but sometimes you realise that people you disagree with have bee wronged and this is one of those cases. I mean, I’m not saying that Scooge’s views on “the surplus population” or workplace rights are justified, but we need to give the guy a break.

Firstly, and most obviously: his name’s Ebenezer! It’s a Hebrew name taken from the Torah. This would suggest that, first of all, Scrooge is Jewish (or at the very least of Jewish decent). Add into that the anti-Semitic tract throughout Dickens’s work, his being a banker all-but-confirms this.
Next, just look at his life. As a kid he was packed of to boarding school under a demanding tutor. While all the other boys went home for Christmas, Scrooge was forgotten about, and probably didn’t have the best time of it.
Given his parents seem to have been absent, it’s only natural that his schoolmaster would be his biggest influence. And what did that School-master talk about the most? What lessons did he try and teach Scrooge…that he was about to enter the world of “business”; and he was about to become a man of “business”. Can we really blame Scrooge for his priority being business and money and profit?
But most strongly, however, we must remember that two major things happened for Scrooge at Christmas. He met his future fiancée at a Christmas Party held by his employer (Fozzywig in the MCC – geddit?) and, a few years later, she broke up with him too. My gran died at Christmas time and my relatives have taken time to properly appreciate Christmas as a happy time again, so in Victorian England, where support networks were not as common, is it any wonder that, for him, Christmas was a time marked with rejection, solitude and bad-temperament
[The relationship with Fan isn’t in the Muppet movie, so I’ll leave that out for now].
And then, to top it all off, while on a spectral adventure, he sees his nephew (Fred) making fun of him in a game of (essentially) 20 questions. What’s often unwanted, but not a rat, a leech or a cockroach?It’s his uncle (who I can only assume had some hand in raising Fred, who may equally be aware of his uncle’s troubled past)!  In short, Fred is a douche. He is the guy we should be trying to change. When are his spirits coming!?

So I’m not saying we should excuse Ebenezer’s callous ways and poor treatment of others – I’m just saying that perhaps we should garner a better understanding of his circumstances before we judge him too harshly. After all, isn’t the spirit of Christmas peace and goodwill to all men? #TeamScrooge

This is going up on Christmas Day, but I’m writing it on Christmas Eve, so there’s only One More Sleep ’til Christmas. Merry Christmas and God bless us; Every one.

Objection in the Workplace…

…or why rights are never clear cut.

This is one of two pieces written on UKSC Judgements handed down on 17th December 2014. The other, on Moohan (and Another) v The Lord Advocate [2014] UKSC 67, can be found here.

The Supreme Court of the United Kingdom (UKSC) handed down two judgements this morning that had been heard in the last few months. One was the tale of two Catholic Midwives, who were seeking to ensure their workplace duties did not interfere with their religious beliefs, as they felt they were entitled to under the Abortion Act 1967.

Greater Glasgow Health Board v Doogan and Another [2014] UKSC 68

Full Judgement and Press Summary

The second judgement was that in what has become known as the “Catholic Midwives” case. It centred on two Labour Ward co-ordinators from Glasgow’s Southern General whose duties had recently been changed. Previously, most (c.98%) of the abortions carried out in the Southern General took place in the Gynaecology Ward. However, due to restructuring, the Labour Ward was likely to seem more, and the co-ordinators would likely have more responsibility for them. The two woman, both practising Catholics, felt that this would require them to carry out actions contrary to their beliefs, and so wanted to invoke their right to refuse under the ‘conscientious objection’ (CO) provision of the Abortion Act 1967.
Whether or not they were able to was highly contentious. The Health Board (GGHB) said that since they weren’t going to be playing an active part in the procedures, they couldn’t opt-out. The Outer House disagreed with GGHB. The Inner house of the Court of Session disagreed with the Outer House. And now it was up to the United Kingdom Supreme Court (UKSC) to decide what was what. Lady Hale (who else) delivered the court’s unanimous judgement, which held that the Midwives could not simply opt-out of what was deemed an ordinary part of their job.

The Issue at hand
It’s important to understand what this case was not. This case was not about Catholics (or any other religious people) being forced to act against their religious beliefs – the right to conscientious objection in s.4 of the 1967 Act is not contingent on religious belief. This case was not about the Midwives being actively involved the the actual termination – both sides agreed that the midwives would not have to do anything directly involved in the abortion process. This case was not about whether the midwives’ ECHR rights (article 9: Freedom of Thought, Conscience and Religion) were affected by the new regime – the answer would be too specific to mean anything of importance.
What this case was about was what it meant to “participate” in an abortion. Section 4 specifically states “no person shall be under any duty…to participate in any treatment authorised by this Act”, so it’s therefore important to understand 1) What the Act authorises; and 2) what it means to ‘participate’ in that treatment.

Authorised Treatment
No-one can disagree with the statement that the Abortion Act 1967 legalised abortion in Britain. It was illegal to ‘kill’ a foetus before then it wasn’t. But what was the ‘treatment’ the Act authorised? Opinions offered in the case differed:

  • The Royal College of Midwives thought it included only “the treatment which actually causes the
    termination, that is, the administration of the drugs which induce premature labour.” For them is didn’t include, “the care of the woman during labour, or the delivery of the foetus”.
  • GGHB understood the treatment as beginning with the administration of the drugs that terminate the pregnancy and ends with the expulsion of the lovingly titled “products of conception”
  • The Midwives took a very expansive view that the treatment included ” any involvement with patients in connection with the termination of pregnancy to which they personally have a conscientious objection”. This could include arranging appointments, fetching drugs or making notes.

It was noted that the UKSC’s predecessor, the House of Lords, had previously held that the treatment included “the whole
course of medical treatment bringing about the ending of the pregnancy”. Lady Hale interpreted this is meaning, broadly, what GGHB felt it did, but also included

“…the medical and nursing care which is connected with the process of undergoing labour and giving birth, – the monitoring of the progress of labour, the administration of pain relief, the giving of advice and support to the patient who is going through it all, the delivery of the foetus, which may require the assistance of forceps or an episiotomy, or in some cases an emergency Caesarian section, and the disposal of the foetus, placenta and membrane.”

This is a rather broad view, but seems to fit well with the terms of the 1967 Act. Abortion is about inducing the unnatural end of pregnancy, so everything contained about seems to fit well. Lady Hale did accept that this definition did not, therefore, include a Doctor signing a certificate to allow the abortion treatment to begin which must, by definition, happen BEFORE the process begins. This may appear as legally inconsistent, but as was noted, often practical arrangements are put in place to avoid unpleasant conflicts.

Participation in the Treatment
So what does it mean to ‘participate’ in the treatment? This was the crux of the problem. It was agreed that there are is a narrow meaning (i.e you are involved in the actual process of carrying out the abortion) or a broad one (not carrying out the treatment, but arranging the staff to carry it out or keeping a general eye on patients). It was held that the narrow vision was most likely intended by Parliament (which is using the purposive approach, as I think I mentioned before).
And on a practical level it works. The women involved are, in the end, midwives. They have responsibilities and duties even if the Abortion Act didn’t exist. They have to organise staff for medical procedures, maintain a good and orderly ward and supervise the condition of patients under their care. Abortion is a (albeit controversial) medical procedure, which requires organisation and the people who undergo it are still patients. There are not parts of the treatment under the Abortion Act, this is just the day to day running of the ward. To be able to opt-out of these aspects would be to opt out of a fundamental part of the job, and that , surely, was never the intention. As Lady Hale herself put it “‘Taking part’ means taking part in a hands-on capacity”.

Another Duty
In the final paragraph of the judgement, after all the action had taken place Lady Hale said one more thing of importance:

But when conscientious objection is the reason [a health care worker refuses to take part in an abortion], another health care professional should be found who does not share the objection.

This is not a requirement of the CO section of the 1967 Act. It’s not in the statute, but is a logical implication of it. Abortion is legal, so access to it should not be restricted. The fact that someone does not want to take part in the procedure should not mean that the procedure should not be carried out. There exists, Lady Hale has opined, an obligation on a conscientious objector to refer the person seeking a termination to a medical professional who will carry it out. Legally, as has been established, this cannot be opted-out of under a CO (since it happens before the procedure begins), but morally, how will this objectors be able to square this with their beliefs, religiously-founded or otherwise? As long as the CO opt-out exists, this will be a question.

This was always going to be a contentious decision. The Scottish Catholic church has already ‘voiced its concerns’. But, today’s decision is certainly the right on in terms of the law. The position as it now stands can be summed up as: Midwives from Glasgow can refuse to take part in any treatment directly related to the termination of a pregnancy; but cannot refuse to do anything that would be their duty if the Abortion Act were not in place (eg. arrange co-ordination and support of patient care). The argument will now come down to what constitutes a “hands-on capacity”.
On a final note, it would be interesting to see the religious make-up of those who enter into the midwifery profession given today’s judgement. Lady Hale noted that the evidence was not available to judge what effect the decision would have on midwife numbers whichever way it went. I suppose, over the coming years, we will see.

A Vote of Confidence?…

…or a dissent more important than the decision.

This is one of two pieces written on UKSC Judgements handed down on 17th December 2014. The other, on Greater Glasgow Health Board v Doogan (and Another) [2014] UKSC 68 can be found here.

The Supreme Court of the United Kingdom (UKSC) handed down two judgements this morning that had been heard in the last few months. One was the latest instalment in what seems to be the unending sage over whether Prisoners have the right to vote, with an #IndyRef twist thrown in…and gives an interesting glimpse of the thinking of some UKSC Justices.

Moohan (and Another) v The Lord Advocate [2014] UKSC 67

Full Judgement and Press Summary

The first judgement was that in the #IndyRef prisoners case where Mr. Moohan and a fellow inmate wanted the right to vote on 18th September 2014. This case was unusual in that, since the referendum would be held before the judgement would be ordinarily handed down, the UKSC made their overall decision known (the prisoners did not have the right to vote in the referendum) and the reasons would follow. Today we got the reasons.

The appellants relied on 4 key areas of law, both UK and International, to make their case, none of which successfully convinced the majority of the court that they had a right to vote.

EU Law
The prisoners argued that, since the #IndyRef was potentially also a vote on leaving the EU (since iScotland would not necessarily be an EU member state upon independence), the Referendum was illegal under EU Law, which under s.29(2)(d) of the Scotland Act 1998, would make it an illegal Act of the Scottish Parliament.
This view was roundly rejected by the UKSC 7-0, for two reasons. The first was that there was no guarantee of what Yes vote means. The Draft Scottish Independence Bill (as it stood) would have made all UK-citizens born in  Scotland ‘Scottish citizens’, and therefore no longer EU citizens, but this was not yet set in stone. Both sides conceded that negotiations to define the exact terms of Independence would take place if there was a Yes vote. Even if there was no change it would be the bill that removed EU Citizenship and not the Act that determined the Franchise for the Referendum that would be amenable to review. Even then, the court then noted that EU Law does not confer any right to vote in the first place, so the whole argument was fundamentally flawed.

The International Convention on Civil and Political Rights (ICCPR)
It was also argued that, under wider Internatinoal Law, the ICCPR gave every citizen the right to vote in referendums. The United Nations Human Rights Commission have held in the past that this right applied in Referendums too, even those involving self-determination. The UKSC accepted this argument, but still denied the appeal – why? Because the ICCPR, while the UK is a signatory to the treaty, has not bee incorporated into UK Law i.e. at a domestic level nothing has changed. While in the international sphere the UK has a duty to comply with the ICCPR, at UK/Scottish Level, the Scottish Parliament doesn’t have to and no domestic court can stop it breaking the terms. So while it’s a good point, in reality, nothing is changed.

Common Law Right to Vote
It was then argued that, even if statute didn’t allow prisoners to vote, the UK being a developed liberal democracy, the common law afforded everyone (subject to only essential limitations re. age) the vote anyway as a fundamental constitutional principle. Again this argument was universally rejected.
While it was agreed that the right to vote was a fundamental constitutional principle, it was made clear that this principle was derived from Statute, not common law. From the 1st parliaments to now, the franchise had been extended bit-by-bit by Acts of Parliament (as it seems will happen soon in Scotland) and never by judges. The court saw no reason why it should take such a radical step now, though Lord Hodge did say that were parliament to markedly curtail the franchise, then judges may have the ability to prevent it. This is a bold statement to make given the notion of Parliamentary Sovereignty is still the centre of UK jurisprudence. In the infamous case of AXA v Scottish Ministers, Lord Reed did suggest that in the face of legislation that went against the very concept of natural justice the court may step in, but here Hodge is talking about a defending a statutory concept (the franchise) and not a common law or natural law concept (the rule of law, in the case of AXA). Nonetheless, the prisoners remain voteless.

European Convention on Human Rights (ECHR)
And now I come the main argument – and the first put forward in the case, but last discussed by me because there’s a lot more to say. If any argument was going to succeed, it would be that under Article 3 of Protocol 1 (A3P1) of the ECHR the prisoners had a human right to vote. To understand how the court voted on this (5-2 rejecting the argument), it’s best to have a look at the exact wording of the right:

The High Contracting Parties shall hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

The words are explicit in that A3P1 concerns “elections” regarding the “choice of legislature”. It had preciously been held, in the UKSC and in the European Court of Human Rights (ECtHR) that elections to the legislature does not include any other kind of vote. This includes presidential elections (which are to the executive) and all referendums, however important they may be. The case offered in support for both these proposition was Niedźwiedź v Poland (2008) 47 EHRR SE6. This concerned a Presidential election and a referendum on Poland’s joining the EU. The ECtHR said that the A3P1 did not apply in these cases because neither were elections to the legislature. So the line of reasoning the majority of the court followed was (put crudely):

  • A3P1 concerns elections regarding the choice of legislature.
  • It’s scope has not been extended to referendums before.
  • The #IndyRef is a referendum.
  • Therefore, A3P1 does not apply in this case.

But what is key here is the fact that 2 UKSC Judges (Lords Kerr and Wilson) dissented from the majority view, Lord Kerr writing the dissenting judgement. They were not entirely convinced that previous UKSC an ECtHR judgements were entirely on point given the nature of the 2014 Referendum. Previously, when the courts had ruled that A3P1 didn’t apply to referendums, they were referendums on EU accession, changing the voting system and constitutional amendment. Never has the court had to consider a situation where the vote was, quite literally, choosing  the legislature: Westminster or Holyrood.
Lord Kerr (the minx) threw Lord Hodge’s words back at him from a case re. Prisoners’ right to vote in the 2011 AV Referendum, where Hodge had said, “the nature of the referendum at issue” suggested that A3P1 could not be applied in that case. Kerr suggested, therefore, that this meant there could be a referendum when the subject was such that A3P1 did apply – and SURELY this was it. He argued that previously the provision didn’t apply because previous plebiscites were “purely consultative [in] character and there was no legal obligation to organise such a referendum.” He said that there was intergovernmental agreement to implement the result of the #IndyRef and the referendum had a solid legal foundation (The Scottish Independence Referendum Act 2013). This, along with the fact that political parties had taken such hard-and-fast positions on the referendum, meant the test (which he believed had been wrongly applied in the past) was passed and, the ECHR applied and the prisoners should have the vote.
As it ended, however, Lords Kerr and Wilson were in the minority and the prisoners did not have a European Right to a vote.

So, in the end, the reasoning was much as was suspected. But, in some ways, the dissent is far more interesting than the decision. Lord Kerr makes an interesting suggestion that not just common law and natural justice rights can be protected by the court from a tyrannical government, but even those firmly and solely based in statute, such as the right to vote. This is a brand new idea (and one I’m not entirely certain of), and it will be interesting to see how this develops in the future (if at all). But the big thing was that, for the first time in it’s history, it was seriously reasoned that the ECHR may, in some very restricted circumstances, give prisoners the right to vote, not only in parliamentary elections (which we know it does) but in referendums as well. Whether this point of view is ever adopted at a European Level, we’ll have to wait till the next #IndyRef.

We Have to be Reasonable About Conviction…

…or a response to @DPJHodges in more than 140 characters.

This week, Dan Hodges wrote this piece for the Telegraph. In it, he ‘argues’ that we should lower the standard of proof used in criminal trials from “beyond reasonable doubt” to “on the balance of probabilities”. I am not a qualified solicitor (yet), nor do I wish to be a Criminal Lawyer when I do (Civil Law is where it’s at) – but I do know this idea is not healthy.

Setting aside the fact that there is no solid legal argument in the piece as to why we should lower the threshold in response to low conviction rates, it seems that he has not considered the full reasoning of the proposal.
Every trial starts off on the basis that the accused didn’t do it. That is fundamental – everyone is innocent until proven guilty. Even if you are a convicted murderer and have been accused of murdering again, you are presumed not to have committed the second murder until it is shown you have.
In order to show that you have committed the murder the prosecutor has to prove, beyond all reasonable doubt, that you did. What’s important is that the doubt must be a reasonable one. An unreasonable doubt can and should not prevent a jury from convicting (e.g The accused told us he has a twin, what if we’ve got the wrong twin in the dock?). So what then is a “reasonable doubt”? I’m reminded of one of the funniest reports I’ve read about a criminal trial. It was Vicky Pryce’s trial about taking Chris Huhne’s speeding points and the jury in its utter incompetency asked “What is reasonable doubt.” The judge answered, quite clearly, that it is a doubt which is reasonable. It’s simple – if you believe, on the face of it, you’re not sure whether to accept something as “proven” you shouldn’t.
To go back to the murder example again, this means that (in Scotland), the prosecutor would have to show that:

  • A killed B.
  • A did so maliciously or with wicked recklessness.

and convince a jury of these two things so that they cannot reasonably doubt that they are true.

And there is a reason that we have that we have that threshold. It has become the accepted jurisprudence that it is better for 10 guilty men to go free than to imprison an innocent man. Obviously our justice system is not perfect, but we – generally – are successful in pursuing this ideal. If we lowered the burden of proof required to imprison somebody, it is inevitable that more innocent people are at risk of being (and so would be) convicted. And conviction, for crimes like rape (which Hodges used to attempt to justify the lowering of the burden) almost always lead to jail time. THAT is why it should be difficult to convict somebody.
I sent my friend (who is much smarter than I am) a link to Hodge’s piece. I was at school with him and he too did law (although at Edinburgh), but instead of doing the Diploma and becoming “a lawyer” he went to Oxford to do a Masters (and PhD) focussing on ‘the justice system’ as opposed to ‘the law’. This was his reaction, and I think it perfectly sums up the reason we should have a higher test than “he probably did it”:

I think the argument for the presumption of innocence needs to riff far more on the extremity of the decision to imprison someone. The phrase ‘deprivation of liberty’ is a hopeless understatement of the gravity of the decision. ‘Deprivation of freedom, autonomy and dignity’ might capture it better, but it would need to be less clunky.

And that is it. Deciding to jail someone is to remove most of the basic freedoms and rights we take for granted. When to get up, where to go, when to eat etc are all restricted and dictated in prison. If we are sending someone there, we had better make damn sure we’re getting it right. Or at least, as sure as we can be without breaking the system.

Shortly after he published his piece, Hodges was asked to try and explain his position by the brilliant @NearlyLegal asked him to explain the logic behind his position. And it was on twitter I realised why Hodges and legal-folk could not see eye-to-eye. Firstly, this happened:

and then, Hodges said this:

These showed that Dan Hodges was coming from a completely different place to those he was arguing against. He believes that it is better that all the guilty are convicted even if innocent people are convicted too. I, and the others tweeting him, are of the opinion that it is better that all innocent people go free, even if that means that some guilty people do not face justice. To me Hodge’s position is repugnant with basic legal principles. To him, mine is too committed to principles and not to action. But regardless, proof of guilt “beyond reasonable doubt” has been the general standard for a long time – but that doesn’t make it a relic from the past. There’s a reason it’s stood the test of time.

Happy Appointed Day…

…or why owning land got a little less complicated today.

Say you wanted to buy my complete collection of Doctor Who DVD’s and I wanted to sell them to you (cause being a tech-geek I’ve got the Blu-Rays now). So we do that, but I accidentally gave you my Torchwood DVD’s as well by accident. You would expect, rightly, that you would have to give me the Torchwood DVD’s back because we didn’t agree to sell/buy them and you never paid for them. That’s sensible.
But then, say I wanted to sell you my Scrap Yard. Not my whole scrap yard, just the back 100mx50m plot. But when the plot was being registered, for some reason, it’s been marked in the register that you not own 100mx100m! DISASTER!
The Land Register is always right. ALWAYS! Even when it’s wrong, it’s right. Even if the deed I wrote sold you 100x50m of land, if the Land Register said you actually owned the 100x100m plot you would own the 100x100m plot!
But I can sort this. I can just ask the keeper to change it – like we would swap back the DVD’s. WRONG! Even if I didn’t mean to sell you a piece of land, as soon as it’s registered in the Land Register and you take possession (which can include simply putting up a fence around the land) I’m screwed. I can’t get it back. I can make you pay for it, but since you are a ‘proprietor in possession’ I can’t have the Land register changed back. At least…until now!

As I write we are mere minutes away from the Land Registration Scotland Act 2012 coming into force (or #LandRegistrationScotlandAct2012Day as I have uniquely taken to calling it). This Act introduces a massive change in the way land registration works – and sorts out the ridiculous situation above.
As of today, if the Land Register doesn’t reflect the proper position under Property Law, then the (majesticly named) ‘Keeper’ can rectify the register without caring whether the interloper has taken possession of the land or not. So long as the error is ‘manifest’ (which, helpfully isn’t defined in the act) it can be fixed. Hoorah! Once more I can park my beautiful 1960’s police box in that 100x50m plot so unfairly stolen from me.

This isn’t the only change the Act makes, but it is by far the biggest. Others are mostly of Academic Interest:

  • Instead of using the OS Map to mark property, we will start using a ‘Cadastral Map‘ (which will be based on the OS Map…so yeah).
  • Advance Notices can now be lodged when a transaction is close to completion to protect a buyer’s potential Real right (stopping the terrible ‘Race to Register’; where A could sell to B and then to C, but if C managed to register his right to the land 1st, B’s deed ain’t work diddly.)
  • Lawyers have more responsibility than ever. The Keeper seems to have run out of filing cabinet space and doesn’t want to be flooded with deeds and whotnot, so now conveyancers have to “tell, not show” the Keeper what the story behind the property is and if they get it wrong they are liable to their clients for the mess they cause.
  • To make it even worse, there’s only one-shot to get it right. If the conveyancer forgets to include even the smallest of details, or doesn’t tick the teeniest of boxes, then the Keeper can now reject the entire application and send it back to be completed properly.

The 2012 Act is not a small fiddle with the rules; it completely rewrites the textbook (seriously, Gretton and Steven better get a shifty). It will also (hopefully) speed up the completion of the Land Register. This may seem inconsequential and unimportant for non-lawyers, but it will speed up land transactions in the future, leading to smaller legal bills for buyers (theoretically) and less stressful moving-days for all. It is a fantastic piece of legislation which will also markedly improve the on-line registration system. In fact, the new form (singular) in designed to be completed on-line! The legal profession may well be dragged into the 21st century, and it makes this future lawyer very happy indeed.

So, in the spirit of the season (and twitter habit for bad commemorative poems), I leave you with this:

She sprang to her twitter, while outside there was drizzle,
And away she typed hard in the land of the thistle,
As the new Act came in, and the sky did turn bright,
“Happy #LandRegistrationScotlandAct2012Day to all, and please get it right!”

Be Careful What You Ask For…

…or an unexpected lesson in Statutory Interpretation.

Last night I was in a rage, and just about every other lawyer and legal type on Twitter was as well. And all because of a paper skeleton.

For those of you who didn’t see last night’s ‘The Apprentice’, the applicants (read ‘contestants’) were asked to buy 9 items over the course of the day. The winning team would be the one which, after fines had been applied for any missing items, had spent the least. A brief description of each item, some with specific qualifications, accompanied each healdine. On of the items was described thus:

HUMAN SKELETON Specifications:  - Full-Sized Anatomical Skeleton  - Minimum 150cm tall.

So each team had to get a Human Skeleton which met 2 conditions: 1) It was Anatomically-correct, and 2) it was ‘full-size’, defined as 150cm tall. Simple. Except, one of the contestants (a lawyer) noticed that nothing else was asked. So, instead of doing what the other team did and buying the science classroom staple of a plastic model on a stand, he bought a paper, skeleton which, when constructed, would be 180cm tall.
Come judgement time, Alan Sugar was not impressed by this inventive thinking. Notwithstanding the fact that what had been bought did meet all the criteria, he fined them as if they’d bought nothing at all because it wasn’t what he meant for them to buy. Because of this fine – and this fine alone – the team lost the task and so one of them was ‘fired’ (i.e. eliminated). It was the lawyer, who had spotted the loophole in the first place, that was sent packing. And I was OUTRAGED!

There are many ways to interpret a law or rule, and the one you use can drastically the meaning you draw from it. In law there different approaches, and using #SkeletonGate as an example – lwe can see how they work, and whetehr Alan Sugars decision can be justified by any of them.

The Literal Approach
The first, and most basic method is to take the words at face value and see where you end up. Under this approach, would our unlucky lawyer have survived the chop?

  • Is what he bought skeleton anatomically correct? – Yes.
  • Is what he bought at least 150cm tall? – Yes.

So that seems fine…except using the literal approach would force us to ask one more question, namely:

  • Is what he bought a Human skeleton?

The answer must be no. What he bought was a model of a human skeleton. A human skeleton is not made out of paper. By taking the literal approach, the other team’s effort would also attract a fine too, cause they’re not made out of plastic either. A human skeleton is, believe it or not, made out of bone. But clearly Alan Sugar obviously wasn’t asking them to buy the remains of a person…so there must be another way.

The Golden Rule
The Golden Rule is the same as the Literal approach with one addendum. If, by taking the literal meaning of the words on the page, the result is so absurd that it cannot possibly be what was meant, then you deviate from that absurdity – but only as much as is necessary for a sensible meaning.
So, in this case, it’s clear that Alan Sugar wasn’t asking the teams to buy an actual human skeleton, just a model of one since

  1. That’s probably illegal, and
  2. His actions demonstrated that this was not the case (i.e. he accepted the other team’s model skeleton).

So in this case, how can Sugar accept the plastic skeleton, but reject the paper one? If the material its made from isn’t important, how can it matter? He said that the teams knew fine well what he wanted and that the team should have taken this into account. So…should they?

The Purposive Approach
The final commonly used method of interpretation is the ‘Purposive Approach’. Here the dictionary meaning of the words isn’t as important. They are a guide to what is meant, but not the whole story. You have to look behind the words and figure out what was the purpose of the rule. Why was, for example, the word “above” used as opposed to “on top of”. What did the drafter mean when they wrote what they did? You can use all kinds of things to figure this out, as the aim is to get the intention behind the words, so long as the words themselves can reasonably be taken to capture that intention.
So, then, what did Alan Sugar mean when he wrote the words “HUMAN SKELETON – SPECIFICATIONS: Full-Size Anatomical Skeleton; Minimum 150cm tall”? It’s evident now that he wanted a plastic model of a human skeleton that was at least that height. So that’s that then. The clever lawyer was too clever and went too far trying to outsmart the game…right?
Well, we’re not quite done yet. The word “specifications” might just prove Lord Sugar’s undoing – not because of what it says, but because of what it doesn’t say. Sugar took the time to make very clear certain conditions that had to be met in order for the task to be completed. He specified those conditions and those conditions only. It would be remiss of anyone to assume there were further conditions to be applied, such as colour, girth etc. It would be unreasonable, on the basis of the words, to assume that there was a further restriction. Therefore, by explicitly applying certain requirements that had to be met, Sugar had implicitly said that no further restrictions existed. So the material wan’t important – so the paper skeleton, while not really what Alan Sugar wanted, was a reasonable understanding on the basis of the words of the requirement.

BBC1 viewers last night witnessed a travesty of justice play out before their eyes. On any normal approach to interpreting the task, Alan Sugar got it wrong and unfairly ditched a contestant. On the literal approach, both teams failed to provide a skeleton that was up to spec. and so both should be fined – changing nothing. Applying the Golden Rule, by accepting a plastic skeleton, he demonstrated that what the thing was made of wasn’t important. Even under a Purposive approach, when intention is key, by specifying some conditions, but not others, it wasn’t obvious that the skeleton had to be made of plastic, so the paper one should have still been accepted.
In the end, what happened was obvious. There was absolutely no doubt that Alan Sugar was looking for a classroom skeleton. But he just assumed that everyone would telepathically know that anything else would not be accepted. The lawyer used his legal smarts, realised there was a loophole, and took advantage of it. Alan Sugar didn’t get what he wanted, but definitely got what he asked for. From where I was watching, it looked like he got outsmarted and didn’t like it. I only wonder if he would accept his own argument when it comes to business contracts or leases. I seriously doubt it.

All of this has a serious side to it, of course. The questions of “What does this mean?” and “How will this be understood?” are of utmost importance when it comes to Acts of Parliament (and devolved legislatures). The minister or politician knows what they mean to say, but have they actually said it. It’s poor drafting and lazy assumptions that has lead to the massive tax loopholes that companies and wealthy individuals can take advantage of. The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 was and still is rightfully slagged rotten because of its lazy drafting, massively over extending its intended scope and making the Act far too heavy handed. Thanks only to the (technically unfounded) actions of the judiciary has the situation not got out of hand.
So, in the end, last night all that happened was that poor drafting led to an unfortunate elimination on a game show and a few jokes on Twitter. But, at the highest level, what happened last night can be the difference between nothing happening someone committing an offence for the most inane of acts…and make no bones about it, it happens all the time.

If You Play With Fire…

…or why I feel kinda sorry for Nicola Sturgeon.

It has become generally accepted that while Yes lost the #IndyRef, in the end the SNP won. They’ve had a Massive boost in membership, a new leader to replace an increasingly divisive one and a promise of a stronger Scottish Parliament. On top of that, Labour are in turmoil and in the middle of a long drawn-out Leadership contest. What can possibly go wrong? Well…

This video shows three Renfrewshire SNP councillors burning a copy of the Smith Commission Report, which is barely a week old. When the report was released, the SNP were quick to denounce it as a betrayal to the almighty Vow – in a “People who support Independence don’t support not-Independence” shock. That’s to be expected and it would be absolutely astounding if Nicola Sturgeon stood up and said, “Aye, fair enough. We’ll pack it in now”.
But this is different. This isn’t just asking why further powers weren’t devolved, or denouncing the Commission as a stitch-up. This video shows a group of elected representatives burning a publication that is highly political in a (still) highly-charged situation. “The 45” still wear their defeat with pride. The word ‘traitor’ is still banded about freely. Saltires still wave defiantly in front-gardens (although, I regret to report, Duggy Dug seems to have gone to stay in a farm in the country).

When Nicola Sturgeon began her tenure as First Minister, she said that she wanted to unite Scotland. Last week she unveiled a fairly impressive and ambitious Programme for Government over the next 12/18 months. This will take work and supreme leadership, and as leader of the largest political party in Scotland (and 3rd biggest in the UK), she should have the power behind her to do it.
Except, in the 2 and a bit months since the 18th September, SNP membership is up c.250%…and there is only one reason those people can have joined the country’s largest pro-independence party at this particular time, and it ain’t Land Reform. Most of those members want another referendum. forget the Edinburgh Agreement, that’s void now. It’s a fact that amuses me, but 6% of people who voted Yes in September signed a petition demanding a “re-vote” because they thought the referendum was rigged. I am willing to bet that most of these people are now members of the SNP.
We can see that the SNP’s focus hasn’t moved away from Independence – SNPFest 2014 at The Hydro talked about little else. There is a very clear reason for that: the SNP is now a ‘fundamentalist’ party. The pendulum between the Salmond gradualists (who seek to achieve independence over a longer-term by slowly gaining more and more power from Westminster) and the fundamentalists (who adopt a much more ‘Indy-or-Die’ approach) has swung firmly in favour of the latter in terms of numbers. To even suggest that the referendum not be run again, or that independence won’t happen soon is heresy. There is a reason Stewart Hosie addressed the masses and not Keith Brown.

Which all, of course, brings us back to the binder-burning councillors. I am not outraged at what they did. I am not appalled, or disgusted, or shocked. I’m just stupefied. Four Elected representatives of Scotland’s governing party had the following though process and believed it to be perfectly normal:

1) I could burn a copy of the Smith Report outside Council HQ.
2) That would be a good idea.
3) I could put YesScotland and SNP stuff around it.
4) I’ll need to get someone to film it though. Put it on YouTube.
5) Where’s the lighter?
6) Nothing can possibly go wrong.

It’s incredibly obvious what Nicola Sturgeon should do with the people involved. They should be ‘sacked’ from the party. They should be denounced as silly people who do not represent the official views of the SNP and their actions are not condoned. Sturgeon should do that – but could she? These councillors (who are, worryingly, pre-#Indyref members) probably represent the views of many, many members of the party. Can a new leader risk slapping down this fundamentalist faction so harshly so soon? This, not government policy, could be the first big decision of her leadership.

Personally, I think she should go for it and stamp her authority all over the party: Those who make trouble, pull stunts and denounce everyone who disagrees with the SNP line as traitors are not welcome. There wouldn’t be a rebellion, there’d be a realisation! What a signal that would be, and it would prevent so many problems down the line.  Remember the UKIP guy who said that silly thingno the other oneNO, the other oneNO THE OTHER OTHER ONE! Just as UKIP have become the “We Could Never Say This in Any Other Party” Party in England, the SNP risk becoming the “FREEDOOOOM” Party – an image they had to do so much to successfully shake off. If Nicola stamps down now, there is a chance people will listen and she will regain the momentum. If she hesitates, the pendulum will swing too far to reclaim, and the fundamentalists may well have their time in power.

I am pleased to report that for the first time I came up with 2 potential titles for a blog post that I was happy with. In the end, I went the one with more angles, but I reserve the right to switch it to “The Smith Commission Heats Up…” at any time.