Sketchy Round the Edges…

…or why I need to check my tweets before hitting send.

I do a thing every night Sunday – Thursday. I carry out “NatOnal #HandWatch”. It’s not mean-spirited, I don’t think. It’s a bit off fun. It’s an establishing meme of Scottish Politics along with Soleros being the lolly of choice and things being in Alex Salmond’s pocket, the the front cover of ‘The National’ will have hands on it. Somewhere. There will be hands. They may be badly photo-shopped hands, but there will be hands nonetheless.

Some of my personal favourites so far are:

I accept its silly and pointless. I didn’t start the whole “Hands on The National” (or NatOnal – because the map of Scotland does not look like an ‘i’) idea, I just picked it up and ran with it. I don’t agree with The National’s political outlook, but it serves a market and good on them.

But today this cartoon was included in the paper, and I saw this preview on twitter last night and it made me uneasy. CAtqW4SWcAAxdmm

I’ll start by saying I genuinely love Greg Moodie’s art style. I don’t know why, but I love it. The stuff from before the #IndyRef, even attacking my own side, I love it. But my issue with the cartoon was the inclusion of Charles Kennedy sweating over a pint. The man’s issues with alcohol are well known and he doesn’t try to hide them. I said that I felt this cartoon was in poor taste (which may or may not be the right word in this situation).
Let’s get my complaint down here. I’m not complaining he’s making fun of alcoholism generally. Nor am I complaining about the political viewpoint – that’s not relevant. I’m asking what having Kennedy staring and sweating over a pint is adding to this frame.

The some of the responses to my (I promise, genuine) concerns were not ones I can agree with:

I disagree. Satire can be in good taste (if indeed taste is the right word). Private Eye’s ‘Royal Baby’ cover was a great example of that – indeed, most of Private Eye is. And besides, unnecessarily mocking somebody’s struggle with alcohol is difficult to justify.

The Lib Dems are rightly going to suffer for being in coalition with the Tories for the last 5 years. I think everyone should be reminded of their broken promises and u-turns. They are a party, I feel, that has no political credibility. However, I don’t see what that has to do with a man’s alcohol issues. The two are not connected in any way. The political vapidness of the Lib Dem platform can’t be used to justify unrelated personal criticisms.

No. It’s probably not worse than the Sun’s ridiculous Wrecking-Ball spread from a few weeks ago, which was sexist. It’s definitely not worse that David Coburn’s “Humza Yousaf, or as I call him Abu Humza” comment (for which he still hasn’t resigned). I think both examples are ridiculous. We can argue about whether its worse than Steve Bell’s cartoon (which I think was a classic Guardian “I’ll use a reference only about 5% of the population will get first time round”). But we have a deep-rooted problem facing addiction issues, and mental health issues more generally, in this country. Making fun of someone for it isn’t a great way to help open up the discussion.

I don’t object to Nigel Farage being pictured with pint – primarily because he isn’t an alcoholic. His constant use of pubs for photo-calls is a cultivation of his “man-of-the-people” image, not a chronic dependency. The point being made here is a fair one, but in my mind, the two are of a different class.

There was then this comment:

I include this (borderline defamatory) comment only so I can show one of the best things I’ve ever created…Referendum Dogs (based on a picture a friend took after the 2012 Local Elections. You can take it as “Labour are criminals”, or just that it’s a cool picture.

ref dogs twitter

I don’t think Greg Moodie should resign or be fired. I don’t thing he should be abused or harassed online (some of the comments he’s received on twitter are well out of order). But I do wish that The National had exercised a bit more discretion. The Lib Dems as an entity, are fair targets – as are all political groups. But there is a point where you cross from criticising the politics of a person to criticising the person themselves.
Some have attempted to justify this as satire – and generally I’d agree with them. But in what way does Kennedy hold a pint improve the satire? I don’t think it does. “But”, say others (including Mr. Moodie), “in other frames of the comic, other people are drinking the pint”. That’s absolutely accurate. But I’m not sure that this completely expunges the issue. Why…look at Kennedy’s eyes in this frame:


To my mind, and it may well just be my mind, they seem to be following the pint. And, a picture of the paper itself suggests this is common to each frame:


I don’t know if this pattern is repeated in all the frames, but 3’s generally enough to establish something more than a coincidence.
To make clear, I’m not offended. I’m not hurt. I’m not harmed. But I am of the opinion that perhaps, just perhaps, a national newspaper should show a bit more awareness of what it publishes and how it can be seen.


Refuge in Audacity?

…or a long story on a lot of not very much.

It’s been a busy few weeks for me. In the past few weeks on the Diploma I’ve had 6 or 7 assessments, some written, some oral and some both. Street Law lessons have been great – and I was part of a ‘Day of Street Law’ at Kyle Academy in Ayr {Which I will be writing about in due course}, but they do, of course, take time. I also had a chance to talk to some aspiring Law students, answering their questions about Law and Law studentry – which also provided a nice reflection at the very end of my university life {and I’ll be writing about that too}. There’s also an election on – but that’s for another time. But over the past few weeks I have also had a secret…I have been genuinely afraid.
I have an unusual outlook on things sometimes. This has always been the case. It’s not intentional, and it’s not a cultivated personality trait – but I have a natural inclination to try unusual approaches when faced with an unusual challenge. And it’s not that I see my approach to things as unusual. I think (at the time at least) that it is eminently sensible and has advantages over other people’s – I wouldn’t do it otherwise. It’s other people who tell my my approach is unusual.

A lot of the Diploma at Glasgow University is about standing up and saying things. It’s definitely a strength of Glasgow’s DPLP, since that’s what most lawyers do. I don’t mind giving speeches and talking to people. I do it all the time and know that most of the time I do well with them. My fear was not about giving a speech in front of people. They always say “Don’t talk about exams once you’ve done them. It’ll only make things worse.” This, I now realise, is excellent advice to be followed at all times.
One assessment I had recently (for my Human Rights class) was a mock employment tribunal. A teacher had been fired by the Local Authority for making several comments about certain pupils in private messages on Facebook, which had since entered the public domain. One message in particular was about a girl who had been causing him problems and he said that she “…should just wait until the prelims :-)”. He was arguing that this statement was protected under Article 10 of the ECHR (‘the right to free expression’). In my role, representing the Local Authority trying to uphold the dismissal, I had to show that this kind of statement wasn’t protected under Article 10.

The easiest way for me to do this, I felt, was to show that it was to show that this was a threat to the girl’s “rights and reputation” in that there was an implied threat to mess up the student’s prelim mark, just to get back at her. Nothing unusual in this so far – a conventional approach. The only problem with this was that there is another way to read the teacher’s comment: This girl is stupid and I’m sure her prelim results will reflect that. I wanted to put forward a case that was stronger than just “but don’t you think I’m right”. I wanted to show that my interpretation was right and that the law was on my side. And I saw in that sentence an important point…THE SMILEY FACE.
Taken on its own the meaning was ambiguous – but why, then, include the smiley face? Did the smiley face lend the sentence another meaning, and offer additional weight to my side. I needed a case that showed that an otherwise innocent statement could be corrupted by the inclusion of an apparently separate, but still related, addition. It was only at the last minute a case jumped out at me. To me, it appeared to be brilliantly on point – it was a completely sensible choice. I was proud of myself remembering it. This pride lasted about 30 minutes.

The case of McAlpine v Bercow [2013] EWHC 1342 (QB) was my secret weapon. You may remember in 2013 that BBC Panorama aired a program alleging that a Tory Peer was at the centre of a Parliamentary paedophile ring. This program did not name the Peer (after taking legal advice). The BBC and the Panorama staff took pelters for it. Meanwhile, Sally Bercow (the Speaker’s wife) tweeted the following:

Why Is Lord McAlpine Trending

This tweet, on the face of it, is harmless. The phrase “Lord McAlpine” was, in fact, trending at the time Bercow tweeted. Asking why something is trending  (i.e is being talked about) on twitter is quite normal. Before her death, “Thatcher” regularly trended and people often asked if she had died. The question itself is common. But, Lord McAlpine who was a Tory Peer and fit the description of the alleged paedophile, felt there was veiled suggestion in this tweet. He felt that the inclusion of “[innocent face]” added a nefarious intent added something not present in the question asked alone. He sued Bercow for defamation (libel as it is in England) and won. Specificlly, the court said that the inclusion of “innocent face” was a “stage direction”, asking readers of the tweet to:

 “imagin[e] that they can see [Bercow’s] face as she asks the question in the Tweet. The words direct the reader to imagine that the expression on her face is one of innocence, that is an expression which purports to indicate (sincerely, on the Defendant’s case, but insincerely or ironically on the Claimant’s case) that she does not know the answer to her question.” [para. 24]

and further:

“There is no sensible reason for including those words in the tweet if they are to be taken as meaning that the defendant simply wants to know the answer to a factual question. [para. 84]

The words “innocent face” (which is as damn near as close to an emoticon as you can get – I don’t think an ‘innocent’ emoticon exists) are what hung her. The question of itself was genuine, but this appendage at the end got her. THIS was my case. OK it was English, and the law is slightly different up here in Scotland, but it was sound reasoning in an area where there’s quite a bit of cross-boarder sharing. Plus, it’s a case involving computers – where the law is severely lacking. At the very least, it was a nail (however formally shoogly) on which I can hand my legal jacket.

Come my assessment, I went through the rest of the case and came, lastly, to he “…just wait until her prelims :-)” part. I was one of the last assessments taking place and the rest of the class, having done their’s, were asked to stay and watch the others. I’m not a fan of this, but that’s the way they do it. I made my point like I would any other. The factual circumstances were important, so I explained the facts and took the points:

  • There was a highly publicised program on the BBC alleging a Tory Peer was a paedophile.
  • Lord McAlpine is a Tory Peer.
  • Sally Bercow tweeted what she did and included “[innocent face]” at the end of it.
  • The Court held that this inclusion was enough to change the meaning of the rest of the communication.
  • Therefore it was open to the tribunal to find that the teacher’s “:-)” prejudiced a sentence that could otherwise be interpreted innocently.
  • By doing so, it would be an threatened attack on the rights of others and so fall outwith Article 10 protection.

I finished my argument and thought I’d gone through it well. But then I could hear small titters behind me. This is not what I was expecting. But, I sat and listened to my opponent’s case. The marker made a comment (one many markers make after the oral assessments) that he had heard two interesting arguments – but (with some degree of irony) his facial expression suggested that he had found one more “interesting” that the other.
Our class developed a custom of forming a ‘jury’ after these hearings to decide the ‘outcome’. It didn’t affect the grade we got, but was just a discussion on the issues. This vote didn’t go well for me. When I joined the rest of those who had completed their assessments I asked some of them how they felt it went. Despite the Bercow case being only the last minute of my 6 minute submission, that was the only thing they highlighted. It wasn’t an argument anyone else representing the LA had made – not a case they’d brought in. And this got me worried.
One person thought it was “brave” I had mentioned the case. I sat through the next ‘hearing’ and they never made reference to the Bercow case either. I was now genuinely afraid that I had messed up this assessment BIG TIME. To me the point I was making could not be clearer. The classmates I spoke to weren’t so certain. At the time the marker had been smiling – but were those smiles  meaning “Good approach. Solid judicial basis. He’s done his homework.” or “What on earth is this guy on about”?

Now, I was afraid.

The next few weeks were terrible for me. I hate failing. I have failed a test exactly twice in my life, and both of them were my driving test. It’s not a thing I cope well with. At the next few tutorials, before the grades were given out, reference was made to my Bercow case. None of them were mean-spirited, but there were a few jokes about it. I developed a standard response of “THAT CASE MADE A RELEVANT LEGAL POINT”…but few people seemed to accept this, and slowly, I wasn’t sure I did either.
Apparently, every time you remember something, you don’t actually remember the actual event, but the last time you remembered it. Slowly, certain things are exaggerated and,  eventually, what you “remember” bears little resemblance to what actually happened. I remembered making a great argument…but was that actually what happened?

The fear was very real. Then, on Tuesday an e-mail went round letting us know the marks were out. I was in the Citizens’ Advice Bureau at the time, but managed to scurry away for a few minutes to log-in and check the grades. I took it very, very slowly. I saw the feedback (after taking 5 mins or so to scroll down to look at it):CATcHNxUIAE5aTf:

Turns out all the worrying was for nothing and that, in fact, the case did make a relevant legal point after all. The submission wasn’t meant to be humorous – my discussions involving alleged paedophilia rarely are – which is maybe a sign of the “what I think is serious, others think is silly” problem I have to work on, but if it worked in my favour I’m not going to complain.

So what’s the point in all this? You’ve read 1800 words (apologies) on a (possibly amusing) non-story. I thought I did something; worried I hadn’t; then found out I had. The point is that a few things hit home for me personally. I really have to get over my anxieties of losing. Motivation is good, yes, but expecting to win every time is only going to lead to disappointment. But at the same time, I maybe need to be a bit more confident in my ability to construct a case and not go into panic mode when its attacked. I imagine that, should litigation come calling, not everyone will agree with my point of view.
In the end, maybe I was just lucky. It’s entirely possible that on any other day, or given any other marker, they would have seen the Bercow argument as an unnecassary sidetrack. My opponent picked up on the reference in the case to paedophilia and ran with it, suggesting that I meant the teacher could be accused of the same (which given the wider circumstances of the scenario wasn’t that far-fetched). If she had gone for it, there’s a great chance should could have wrecked my credibility. But I was lucky…this time.

‘Higher’ Law…

…or “Constitutions on ketamine”.

So, The Smith Commission. Remember that? One of the recommendations in its Final Report was that:

“UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions. ” [para 21]

This was, in turn, translated into the Draft Scotland Clauses 2015 (what would become the Scotland Bill 2015) in s.1, which would insert the following into the Scotland Act 1998:

(1A) A Scottish Parliament is recognised as a permanent part of the United Kingdom’s constitutional Arrangements.

This immediately attracted comment as an odd position. On one hand, it was legislating for the permanence of the (or, indeed “a”) Scottish Parliament, but on the other it was absolutely useless. It is a fundamental principle of Parliamentary Sovereignty that Parliament cannot bind its successors. Any law, no matter how important, can be undone by a majority of Parliament voting to repeal it.
This means that potential the proposed ‘permanency clause’ is legally nothing more than a legislative ornament.
This is what the Law Society of Scotland were getting at in the statement they released yesterday. The current LSoS president, Alistair Morris, said that in this respect, this was merely a “…political declaration than any matter of law…”, precisely because a parliament, at present, cannot bind its successors. He suggests that, while there may be some alternative form of words that could work, there may be a more fundamental problem to enshrining the Scottish Parliament in the constitution, and that to overcome it we would have to consider some form of “Higher Law” :

Indeed, the concept of the sovereignty of the UK Parliament may, at least in legal terms, put a limit on the ability to deliver the intentions of the Smith Commission in this area.

Across the Irish Sea, it seems that our nearest neighbours may have taken the ‘Higher Law’ idea a bit too literally. Yesterday their Court of Appeal released the judgement in a constitutional case which, in a round about way, lead to certain drugs being legalised in Ireland for about 24 hours.
The material facts are that, in 1977 the Irish Parliament (The Oireachtas) duly passed the Misuse of Drugs Act 1977. Section 2(2) of that Act gave the Government the power to, without going back to the Oireachtas, make an order that would add a new substance to the list of substances the Act banned as if it had always been on the list. Since 1977, the government had made several orders doing just that, banning ecstasy, ketamine, crystal meth and other drugs within Ireland. All in all, over 120 drugs were banned using this method.
However, this case involves a man challenging his prosecution for possession of ‘methylethcatinone’ on the basis that the s.2(2) order banning it was unconstitutional. In Ireland, having a codified constitution which is a Higher Law than all other laws, all other laws must conform to it. Specifically he said that the government actions contravened Article 15 of the Irish Constitution, which states that:

2(1) The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.

2(2) Provision may however be made by law for the creation or recognition of subordinate legislatures and for the powers and functions of these legislatures.

The argument the court accepted was that, the government were, in effect, making law by themselves, bypassing the Oireachtas completely, so this didn’t comply with Article 15 of the Constitution. The result of this was that the orders banning possession of the drugs were struck down. It is still illegal to sell or supply these drugs to others, since they are regulated under different laws. Not all drugs are covered either – LSD,cannabis and cocaine are covered in the 1977 as passed, not by an order, so are still illegal to possess.
The Government, just in case the ruling went against them, had prepared legislation that was sped through the Dail (the lower house) last night and then the Seanad (the Senate) this morning. Then the President will sign it and all will be good again…but because of unusual Irish Law-making practices, the Law cannot come into force until the next working day after it is signed, that is Thursday Morning at 00.01am.

I bring these two ideas up in conjunction because I think they show an interesting contrast. In Scotland, and the UK more generally, we’re keen to consider a codified constitution, and most people see a Higher Law included in that. The idea that the Scottish Parliament could be abolished by 326 MP’s deciding to isn’t one  a lot of people like. While there’s a political barrier there, people like the idea of the legal certainty a Constitution would bring. Even during the #IndyRef, the idea of enshrining rights to (e.g) housing was floated by the SNP, without any real analysis.
The news from Ireland shows us the other side, where an inarguably sensible provision in the Constitution (That Parliament should make the laws) has thrown up an unexpected obstacle to achieving an entirely legitimate aim. In this instance, it’s quite amusing and not liable to unwind a major arm of the state, however, consider America, where it seems that just about every government programme is challenged on constitutional grounds. What any potential UK Constitution would look like, it’s position in our legal system, and most importantly its content need careful consideration

#StreetLaw 4: Discrimination and the Law…

…or why it might not be a generational thing.

This week, David and I did something a little different to the previous weeks. We had, up until now, used lessons that we’d either done before personally, or had been prepared by others for us to use. This week, however, we wanted to prepare our own lesson in response to a suggestion from the first week. One girl wanted to talk about the fatal shootings in Ferguson and the issues surrounding it, but we felt that that being the single focus would be too narrow – so a wider discrimination point, focussing in on Ferguson as a case study may be more suitable.

The Premise

Like last week, primarily because it seemed to work, we split the class into groups as the came in the door. There were a few more complaints than last time, but nothing too disruptive. Before the class we prepared 5 scenarios (with brief descriptions) where some form of discrimination was present, and each group of students would take one (we assigned them randomly) and discuss it. Specifically they had to consider:

  • Whether there was discrimination.
  • Whether this was justified.
  • The effect the discrimination would have, and whether it was positive or negative.

Each group would then have to report back briefly on what they discussed and what their conclusions were – and what they thought in relation to other groups’ discussions.

The Execution

Taking each of the scenarios in turn, and the groups’ discussions of them:

Affirmative Action

The first group were looking at race being a factor in US college admissions.  Although we framed the question as “more difficult for white Americans” and didn’t give any statistics regarding racial representations, the group agreed that there was discrimination here – but said it was “in favour of racial minorities”. They also felt that, since there was a very low level of non-white students, they felt that is could be justified in terms of achieving a bigger picture of equality.
One pupil in the group did, however, raise the very important point that it was no good raising the number of non-white students if they weren’t able to pass the course. She also said that, even if they did pass, they still faced a discrimination getting jobs, so there was another level on top of it.

Marriage and Civil Partnerships

The next group had to consider the old regime where Marriages were strictly a woman-man affair and same-sex couples could only enter into Civil Partnerships. This groups agreed there was a disparity here, but there was one boy in particular who didn’t see it as too much of a difference. He correctly pointed out that, while the names were different, the question said that the rights each couple got were broadly the same, so it was a name-only difference.
I found this interesting, since this was a major point when Civil Partnerships were being introduced. We pushed and asked him if he thought that being able to call the relationship “marriage” was important, even symbolically. He said yes, but now that “they” had marriage “…they should stop marching in the town. They’re not different any more”. Overlooking for a moment the repeated use of”they”, I suggested that perhaps gay people faced other kinds of  problems, not to do with marriage – such as people calling things they found bad “gay” in the school yard, for example. He shrugged.

Racial Profiling

The third group considered racial profiling in a UK context. It’s worth bearing in mind that the class is about 70% BAME (and the group discussing this was 80% black) – and given our lesson on Stop and Search a few weeks ago, we expected a certain discussion to follow. But we were surprised. The question explicitly highlights the massive difference between the proportion of the UK who is black (3%) and its black prison population (11%). But the group said that this could be because the majority of people who commit a crime were black. The fact there was a gap was because black people commit more crime.
David and I were both surprised by this, but then one of the group said more. He said that black people were, generally, from poorer areas and received a poorer education than white people. He said that, because of this, they were more likely to be involved in crime and that this caused the problem. Again, a group had looked beyond the example and reasoned that there was a deeper problem to be addressed before the issue could properly resolved.

Class War? 

This example was, perhaps, the odd one out of the 5. In this example (based on free university tuition in Scotland), it is explicitly said that all students can go fee-free, regardless of their background, but there were few additional grants available. I’ve written about my views of this before but I was curious to see what the less politicly-biased would say.
They stated very clearly that this couldn’t be discrimination, since everyone was treated equally. But then we asked about the outcome. If everyone starts out with a different level of support, and then the government treats everyone equally, don’t the richer people keep their advantage? The general response, even when the question was opened up to the class, was yes, but that it wasn’t the government’s fault, and that was just the way it was. What, then, about people with disabilities – should they be treated the same in spite of the obvious mobility issues? The class was, obviously, a lot more understanding of these needs, but still didn’t make the connection between ‘equality of input’ and ‘equality of outcome’. it seems I may still be in the minority on this.

All Women Short-lists

I admit, this was the one I was most interested in on a personal level. The use of All-women short-lists (AWSs) has always been controversial, but I thought that the class would have become aware of them through their modern Studies classes and maybe discussed the issues. However, by chance, the group that had to discuss and present on AWSs was made up of 5 boys.
Unfortunately, they focussed not on the fact that while women are 52% of the UK population they are only 22% of all MPs, but instead on the disadvantage this would put men at in some constituencies. While at the discussion stage, David and I both suggested to them that, perhaps, while some men were being disadvantaged, there was a bigger problem that had to be addressed. They agreed that something had to be done to encourage more women to be MPs, but they also thought that AWS were discriminatory against men and that their use could not be justified at all.
There was one girl not in that particular group who also tried to make the argument that there was a bigger problem in the under-representation of women. She was even less successful than we were. Although, she was able to hold her own well. This was slightly depressing, since the boys were making the same arguments heard when AWSs have been discussed amongst adults.

The Conclusion

So all in all, while there was a lot of good discussion in the room, we both left the classroom feeling slightly sad about it all. Both David and I had hoped, I think, that the kids would be much more liberal and understanding of discrimination and the need to fight it than they actually were. The (verging on) homophobic attitude of one of the class was itself surprising to us – particularly since it didn’t seem to have any religious basis (which would explain, though not excuse, it). There was also a lack of appreciation that ‘treating everyone the same’ isn’t the same as ‘treating everyone equally’, and some didn’t recognise that sometimes we must be aware of a disadvantage (like class, or disability) in order to effectively combat it. But the discussion over AWS was perhaps the one that really got me. The arguments that the group (and wider class) put forward against AWS were the same ones I have heard time and time again in political meetings about them. There is an accepted truism that discrimination is a generational thing and that racism, sexism and homophobia are things that will disappear when my parents’ generation does. That class made me think otherwise.
That being said however, there were positives too. Some pupils were incredibly switched on the the fact that sometimes the inequality isn’t the root cause of the problem, but instead a symptom of it. The boy who said that perhaps it was true black people did commit more crime in the UK, but that was itself because of an other inequality under the surface was really impressive. As was the group who weren’t just looking at the action being taken to tackle US college admissions, but also considered the support that was needed both before and after that to make sure that it got results and made a real difference in ending the discrimination. Perhaps, if those people were able to talk with their classmates, progress might be made after all.

Teaching Points

+ The group work actually went really well and, while there were a few issues (one boy was a very dominant voice in his particular group) people were able to work together.
+ For the first lesson we had developed ourselves, David and I were really pleased with how it went and it was received.
– That being so, we did have a section on Ferguson in particular, and a “draft your own Equality Act” which we had to cut because we didn’t watch our time. We’ll have to watch that in future.
– There was a general resistance to having to formally ‘present’ conclusions to the class. The teacher suggested that in future, we tell the class a week ahead if the wanted to do presentaitons. Perhaps it was the word itself that was the issue?