Acknowledge it now

The starting point for the Scottish National Party, going into the Smith Commission on further devolution, must be a maximalist one. We are the party of Scottish self-government. We cannot pretend otherwise. If independence is our first preference, our esto position is the greatest level of autonomy for Scottish institutions which it is possible to be gained within the United Kingdom. 

As Ruth Davidson made clear yesterday, "devo max" as it has conventionally been understood - responsibility for nearly all of Scotland’s domestic affairs, including taxation and welfare benefits, while foreign affairs and defence would remain the responsibility of the UK government - is a non-starter. 

While this comes as no surprise to anyone familiar with the devo-schemes offered in the months before the referendum by the Labour, Tory and Liberal Democrat parties, it will come as something of a rude awakening to those moved by the rhetoric and the representations of the "new powers" apparently on offer which saturated the final weeks of the campaign.  

But over and above the narrow party debates and Westminster recriminations on the balance of welfare and tax competencies, the pro-independence minority have particular interests which they we must argue to be privileged in the Smith process. We've got to come down to brass tacks, and quickly. The Greens and the SNP have just over a week to submit their views on more powers to Lord Smith of Kelvin. The rest of us have a little longer. 

I'm sure folk are beavering away behind the scenes, but we also need practical ideas circulating out there, in the ether. If, as Alex Salmond has argued, the custodians and guarantors of further devolution are millions of our active and agitating fellow citizens, those citizens need quickly to master the Scotland Act - at least in outline - to understand what is doable and what is desirable, what is already devolved and which powers Westminster still stubbornly - and sometimes unjustifiably - clings to.

The welfare red lines I suggested last week are one such practical idea for Nationalists. Here's another: we need to seize the opportunity of the Smith Commission to put the legality of any future referendums beyond dispute, and vigorously resist any proposal to entrench the Union along the lines suggested by Jack Straw last week.

Although there was a good deal of nonsense and shadowboxing on the topic back in 2012, as loyal and long-term readers of this blog will recall, without Westminster's 2013 section 30 order under the Scotland Act, the legality of the 2014 referendum hung by a very shoogly legal thread. Calling a referendum was arguably within Holyrood's powers, but no higher than that. Without getting the nod from Westminster, the referendum was vulnerable to legal challenge, the outcome unclear, and risked putting the Presiding Officer - who must certify that Bills fall within the Scottish Parliament's powers - in an impossibly difficult place. 

Even kicking the referendum can several years down the line, with September's defeat, these issues return with a vengeance. If there was an arguable case that the referendum fell within Holyrood's devolved powers before the Edinburgh Agreement process, that case is now much weakened. The UK government imposed a number of restrictions on the 2014 poll. Firstly, they insisted that the referendum should be an either/or affair, a Yes or a No to independence. They also time-limited Holyrood's authority to call such a poll. It lapses on the 31st of December this year. Bottom line: on the current law, future independence referendums called by Holyrood, without securing London's agreement, are now almost certainly unlawful. Jack Straw's wheeze is entirely surplus to requirements. So what are we going to do about it?

From a democratic perspective, this restriction cannot be justified. Future referendums any time soon cannot be a priority and cannot seem like a priority for the Scottish Government and the Scottish National Party. But we have a responsibility to the very substantial minority who voted Yes on the 18th, and to the principle of Scottish self-determination recognised by the 2014 referendum, to ensure that future generations have the opportunity to decide for themselves whether they wish to remain part of the United Kingdom. And to do so lawfully, peacefully and democratically - at the ballot box. There can be no question of changing the rules of the game now. Jim Sillars is dead wrong about that. All we must seek is to give permanence to the basic principles, recognised by the UK government in facilitating the 2014 referendum.

Nor is this special pleading, or an unprecedented or unreasonable recognition of minority sensibility. The first section of the Northern Ireland Act 1998 recognises that "Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll" but "if the wish expressed by a majority in such a poll is that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland, the Secretary of State shall lay before Parliament such proposals to give effect to that wish as may be agreed between Her Majesty’s Government in the United Kingdom and the Government of Ireland." 

The rules governing such a border poll are set out in the first Schedule to the Act, and are not unproblematic in their details - but the basic principle recognised by the legislation is a sound one. If Northern Ireland's right to determine its constitutional destiny within the United Kingdom can be respected and reconciled in law with continuing Union, why not Scotland's? Surely a will to self-determination expressed in an orderly, civic movement has at least as much moral and political authority as the hard and harrowing process in Northern Ireland which culminated in the 1998 settlement.

The case for recognising Scotland's right to self-determination in primary legislation is unanswerable. It isn't good enough to leave the question vulnerable to cynical political manipulation and Machiavellian legal position-taking. Our first priority in the Smith Commission must be securing greater autonomy in tax and welfare to make a real difference to folk's lives. 

But it is crucial not only that Holyrood's powers are extended, but that the democratic principles which flowered in this referendum also endure. Securing the inalienable right of Scots to decide their own political future - giving legal force to the principles articulated in the 1989 Claim of Right - must form part of that. The new Scotland Bill could do worse that incorporating this thought into its first section: "We acknowledge the sovereign right of the Scottish people to determine the form of Government best suited to their needs". 

This is the challenge to the other parties to the Smith Commission: many of you acknowledged it then. Acknowledge it now.

For A' That, Episode the Sixth - the Meedja...

Sixth time, the charm.  The start of another week, and inevitably, another edition of the For A' That podcast. This time around, Michael and I were joined in our plush studio by freelance journalist Peter Geoghegan (whose cover story about disability you may have seen in yesterday's Sunday Herald) and Philip Challinor, a London-based curmudgeonly blogger and self-published novelist.   

What future does the media have in an independent Scotland? Might independence prove reinvigorating for the rusting Scotch presses, or like devolution, see the paradoxical shrinking in the scope and ambition of its productions? What, if anything, might Levesonian developments have to say to that? And back in a wider Britain, what are we to make of UKIP's upward political momentum? Ought we to be consecrating public holidays in a secular state to old, dead sainted men? And to flip the ordinary logic of our debates, just why might Britain want to hold onto Scotland anyway? Michael has a telling, somewhat time-worn quotation from Jack Straw on the theme, which kicks off a little debate.

As usual, you can also download the show from here, or, as preferences tend, on iTunes here.  This is the sixth in our series of weekly podcasts. If you'd like to dip into our back catalogue, and revivify past conversations, you can listen back to episodes one, two, three, four and five here.

The saintly Augustine's Megrahi papers ...

The newswires are tingling with headlines from the Cabinet Secretary's release and review of previously unpublished UK Government documents pertaining to events surrounding Al Megrahi's release from prison. Predictably enough, the Conservative Party's shows every sign of regarding this as a splendid opportunity to stick it to their Labour opponents and are serve upon them indictments alleging implication, art and part guilt, opportunism, hypocrisy and so on.  The Cabinet Secretary's remit was clearly influenced by the antics of our old opportunistic chum, devolution expert and all round fair-minded inquisitor, American Democratic Party Senator Robert Menendez. As the paper explains....

The review has sought in particular to assess whether there is any new evidence that:

i. the UK Government directly or indirectly pressurised or lobbied the Scottish Government for the release of Mr Megrahi (either under the PTA or on compassionate grounds);

ii. pressure was placed on the Scottish Government by BP for the release of Mr Megrahi (under the Prisoner Transfer Agreement or on compassionate grounds);

iii. the Libyans were told there were linkages between BP‟s investment and the release of Mr Megrahi either under the Prisoner Transfer Agreement or on compassionate grounds.

As a substantial part of this release of documents, Sir Augustine "Gus" O'Donnell has published partially redacted correspondence from a number of figures from the defeated Labour administration. In line with past practice on this blog, I'll set down a portion of the text, for your scrutiny. O'Donnell's review and published correspondence runs to 142 pages in total. It can be consulted in full in .pdf form here, via the Cabinet Office website.

These documents include:

• 25 July 2007; footnote 6; letter from PM to Col Qadhafi;
• 19 September 2007; footnote 10; Ministry of Justice Submission
• 26 September 2007; footnote 15; letter from PM to Col Qadhafi
• 28 September 2007; footnote 11; Jack Straw to Gordon Brown PTA
• 2 October 2007; footnote 12; note from HMA Tripoli to the FCO
• 2 November 2007; footnote 18; record of phone call between Jack Straw and Kenny MacAskill
• 7 November 2007; footnote 17; Ministry of Justice Submission on PTA
• 19 November 2007; footnote 14; record of Simon McDonald meeting with BP
• 7 – 19 December 2007; footnote 21; correspondence between Jack Straw and Des Browne;
• 19 December 2007; footnote 22; record of phone call between Jack Straw and Kenny MacAskill;
• 18 February 2008; footnote 25; letter from Gordon Brown to Col Qadhafi; 
• 29 September 2008; footnote 26; Ministry of Justice Submission on PTA 
• 10 October 2008; footnote 27; Ministry of Justice Submission – Call with First Minister
• 13 October 2008; footnote 28; Ministry of Justice record Jack Straw call with First Minister 
• 17 October 2008; footnote 29; letter from Bill Rammell to Abdulatti Obidi 
• 21 October 2008; footnote 30; Cabinet Office Submission to Gordon Brown
• 24 October 2008; footnote 32; record of phone call between Jack Straw and Alex Salmond
• 3 November 2008; footnote 31; FCO Submission on handling Megrahi’s Health
• 7 November 2008; footnote 34; record of phone call between Jack Straw and Alex Salmond 
• 13 November 2008; footnote 35; FCO Submission on Judicial Agreements 
• 9 December 2008; footnote 37 and 39; FCO Submission – Advice to the SG 
• 15 December 2008; footnote 38; FCO letter to SG on foreign policy advice 
• 22 January 2009; footnote 41; FCO Submission – Contingency Planning 
• 25 February 2009; footnote 42; Cabinet Office record of Cross Whitehall meeting 
• 20 April 2009; footnote 43; FCO Submission – Further Handling on Megrahi 
• 21-23 April 2009; footnote 43; FCO Submission – Further Handling on Megrahi – PUS and Ministerial Responses
• 20 April 2009; footnote 44; FCO Submission – Ratification of Treaties
• 21 April 2009; footnote 44; FCO Submission – Ratification of Treaties – Ministerial Response
• 22 April 2009; footnote 45 & 51; Ministry Of Justice Submission – Jack Straw call with First Minister
• 29 April 2009; footnote 45; MoJ Record of Jack Straw call with First Minister
• 24 June 2009; footnote 50; FCO email – Foreign Policy advice to the Scottish Government 
• 29 June 2009; footnote 47; FCO Submission – Legal Advice to Scottish Government
• 13 August 2009; footnote 57; FCO Submission to No10 – Impending Scottish Government Decisions
• 20 August 2009; footnote 57; letter from PM to Col Qadhafi;

To give you an overall impression of the Cabinet's Secretary's review, here are his conclusions:

34. It is my conclusion that:

i. none of the materials that I have reviewed contradicts anything in the then Foreign Secretary's statement to the House Of Commons (12 October 2009) or the current Foreign Secretary's letter to Senator Kerry (23 July 2010), or statements made by the former Prime Minister on this matter;

ii. it is evident from the paperwork, including in documentation already released, that the Libyans made explicit links between progress on UK commercial interests in Libya and removal of any clause in the PTA whose effect would be to exclude Mr Megrahi from the PTA. It is also evident, including in documentation already released, that BP did lobby the former Government to make them aware that failure to agree the PTA could have an impact on UK commercial interests, including Libyan ratification of the BP exploratory agreement (EPSA) signed in May 2007. As is already in the public domain, these commercial considerations played a part in the former UK Government's decision to reverse its position and agree to the removal of this exclusion clause. And once the exclusion clause had been removed from the draft PTA, the former UK Government in turn held up final signature until progress on commercial deals had been achieved. The records show that Cabinet Office and FCO Ministers and officials were mindful of, and pressed Libyan interlocutors for progress on, the major BP deal (alongside other UK deals) in the context of agreeing the PTA. But:

a) while the PTA provided a framework to consider the transfer of prisoners, it did not permit transfer when an appeal was outstanding and, critically, in line with every other PTA, provided no automatic right to transfer;

b) any decision on an application for transfer of Mr Megrahi under the PTA was for Scottish Ministers alone to make. Scottish Ministers retained an absolute veto over any request for prisoner transfer in the case of Mr Megrahi, a veto they used in August 2009 by rejecting his application for transfer;

c) the PTA did not in any case form the basis for the release of Mr Megrahi;

d) there is no evidence that pressure was placed on the Scottish Government by BP for the transfer or release of Mr Megrahi (either under the Prisoner Transfer Agreement or on compassionate grounds);

e) there is nothing in the paperwork to indicate any pertinent contacts between BP and HMG after February 2008;

f) the Libyans were not told there were linkages between BP's exploratory agreement and the transfer or release of Mr Megrahi (either under the Prisoner Transfer Agreement or on compassionate grounds).

iii. it is clear from the paperwork that at all times the former Government was clear that any decision on Mr Megrahi's release or transfer under a PTA was one for the Scottish Government alone to take. The documentation considered by the review demonstrates that they were clear on this in their internal deliberations and, crucially, in their contacts and exchanges with the Libyans, including at the highest levels, and with the Scottish Government. In Gordon Brown's only meeting with Colonel Qadhafi, on 10 July 2009, he made clear that the decision was solely a matter for Scottish Ministers and HMG could not interfere.

iv. nonetheless, once Mr Megrahi had been diagnosed with terminal cancer in September 2008, HMG policy was based upon an assessment that UK interests would be damaged if Mr Megrahi were to die in a UK jail. The development of this view was prompted, following Mr Megrahi's diagnosis of terminal illness, by the extremely high priority attached to Mr Megrahi's return by the Libyans who had made clear that they would regard his death in Scottish custody as a death sentence and by actual and implicit threats made of severe ramifications for UK interests if Mr Megrahi were to die in prison in Scotland. The policy was primarily motivated by a desire to build on previous success in normalising relations with Libya and to safeguard the substantial gains made in recent years, and specifically to avoid harm to UK nationals, to British commercial interests and to cooperation on security issues. The desire to see such a result developed and intensified over time as Mr Megrahi's health declined and the imminence of his death appeared greater;

v. Policy was therefore progressively developed that HMG should do all it could, whilst respecting devolved competences, to facilitate an appeal by the Libyans to the Scottish Government for Mr Megrah's transfer under the PTA or release on compassionate grounds as the best outcome for managing the risks faced by the UK. This action amounted to: proceeding with ratification of the PTA; explaining to Libya in factual terms the process for application for transfer under a PTA or for compassionate release; and informing the Scottish Government that there was no legal barrier to transfer under the PTA;

vi. I have not seen any evidence that HMG pressured or lobbied the Scottish Government for the transfer or release of Mr Megrahi (either under the PTA or on compassionate grounds). Jack Straw stated clearly in his calls with Alex Salmond including on 13 and 24 October 2008 and his meeting on 28 April 2009 that this was a matter for the Scottish Government. Indeed, throughout this period, the former Government took great effort not to communicate to the Scottish Government its underlying desire to see Mr Megrahi released before he died. Moreover, it is clear that HMG considered that any attempts to pressurise or lobby the Scottish Government could be counter productive to achieving this outcome. Although it is likely that the Scottish Government was aware of this desire, there is no record that it was communicated or that UK interests played a part in Mr Megrahi's release by the Scottish Government on compassionate grounds. When the matter came to the then Prime Minister in August 2009, he did not seek to exercise any influence on the First Minister or the Scottish Government. Mr Megrahi's release on compassionate grounds was a decision that Scottish Ministers alone could – and did – make.

Source.

US Senate hearing on Megrahi release...

The other day, I found myself wondering what those valiant seekers after truth, Senators Menendez, Lautenberg, Gillibrand and Schumer were up to these days. There was plenty of coverage of Scottish and Westminster Governments' refusals to be put to the question by the Foreign Affairs Committee of the American Senate on the compassionate release of Mr Megrahi. As regular readers will recall, while styling themselves humble servants of clarity, throughout these American politicians have behaved disgracefully, cooking up wild allegations, deliberately misunderstanding processes, impugning the integrity of people unable to respond on the same public terms, persisting in their innuendos once furnished with the correct facts - and generally showing the worst of bad faith. I certainly accept that folk have a right to ask questions, to dispute the justness of decisions, to make up their own minds. I'm no tyrant of the mind and accept that reasonable people can reasonably differ on the compassionate release. A fair-minded exploration of the facts and an attempt to understand what transpired has not been much in evidence here. Instead, Menendez and friends delivered an amateur dramatic troupe's rendition of Arthur Miller's The Crucible. That said, Scottish advocate Jonathan Mitchell QC also makes a series of vital points about the Scots law and policy on compassionate release, including the real possibility that if MacAskill had rejected Megrahi's application, the decision could be judicially reviewed - and reviewed successfully. Moreover, the looming pachyderm in the chamber is the more fundamental question - never raised in the U.S. Senate hearing - whether Megrahi was properly convicted or whether he was the victim of a miscarriage of public justice.

Alex Salmond rebuffed their innuendos and allegations in a series of stingingly clear letters, many of which I've replicated here before for your information. Rather less attention was paid to what actually transpired in Washington in the absence of Hague, Straw, Salmond or MacAskill. Helpfully, our American friends extensively cover and archive the operations of their legislature on C-SPAN, so finding the relevant footage was  rather straightforward. Menendez convened a small clutch of his fellows and took evidence on the 29th of September in the US Senate Foreign Affairs Committee. Needless to say, our friendly senators lived down to expectations...

New Lockerbie case poll on US Senate games...

Seems Richard Baker has decidedly misjudged his electorate. You may recall the Swine Pursuivant's caterwauling on the radio, sternly demanding that Alex Salmond and Kenny MacAskill should schlep across the Atlantic to line dance before the US Senate, while the question of Jack Straw's attendance was "purely a matter for him". Such a flexible fellow he is. As you will all undoubtedly know, Senator Menendez et al's peremptory summons was timely and fatally rebuffed by the Scottish Government. My sense throughout has been that many Scots would not take kindly to being kicked around by canting scoundrel American politicians, whatever their views might be on the release of Megrahi itself. Recall, after all, Galloway's celebrated jaunt to Washington. The still-present twinge of disgust at the perceived pandering of British political figures to American interests. Remember, in short, Blair's bichon frise routine. That underdog mentality, itching to raise two fingers to startle the presumptuous and ignorant and high handed American hypocrite - that is a tale calculated to resonate with many Scots, tingled by the small but significant frisson of independent-mindedness and the spirited resistance to a stronger power. Menendez instead had to contend with silence. He was denied his judicial moment in the chair. In his panic, he burbled to himself, for company's sake, reduced to increasingly shrill accusation, grasping at the rags of decorum to cover his nakedness.  

On any reading, Eck's sharper epistle to Senator Menendez was a excellent riposte, serving to concentrate these themes. And with tightrope poise, it balanced twin burdens. While the language of the text was sufficiently polite not to cause an risky hoohaa, the inflammatory sentences were pointedly crafted and by consequence, it was these that were covered in the media. Basically, as far as the Scottish electorate is concerned, he managed to wave an archer's salute at the American senators without causing the scandal which a more direct "awa' an' bile yer heid!" would undoubtedly have caused. Those were my suspicions and best guesses. This morning the SNP released some details of a poll exploring Scottish public opinion on precisely this question and I would suggest that the results overwhelming bear out that analysis. The poll's total sample size was 1,212 Scottish adults and the fieldwork was undertaken between 17th - 18th August 2010.  Here are the questions asked, with respondents' percentages for each response:

Question (1) A US senate committee invited representatives of the Scottish government to appear before their committee to explain their decision. The Scottish government declined to attend, on the grounds that they are accountable to the Scottish Parliament, not to US politicians. Do you agree or disagree with Scottish Government’s decision not to attend?

 

1. Agree – they were right not to attend 72%
2. Disagree – they should have attended 20% 
3. Don’t Know 7%

 

Question (2) Some US Senators have argued that commercial lobbying of the UK Government by BP played a role in the release of Al-Megrahi, while the Scottish Government insists that the Scottish Government was not lobbied by BP and that the Scottish Justice Secretary’s decision to grant compassionate release to Al-Megrahi was based solely on the rules and regulations of Scots Law. Regardless of your own view on the decision, which of the following best reflects your view?

 

1. The US Senators are correct – BP Lobbying played a part in the release of Al-Megrahi ~ 14%
2. The Scottish Government is correct – Al Megrahi was released solely in line with Scotland Law ~ 54%
3. Neither ~ 11%
4. Don’t Know ~ 21%

Question (3) Al-Megrahi was convicted in a Scottish Court and served his prison sentence in Scotland. Regardless of whether you think Al-Megrahi should or should not have been released, who do you think should have made the decision on whether or not to release him?
 

1. The Scottish Justice Secretary ~ 76%
2. A Minister in the UK Government ~ 13%
3. Don’t Know ~11%

Just a few points I want to emphasise. Needless to say, 72% to 20% supporting the Scottish Government's non-attendance is a mighty difference to make the politick would-be positioning of Richard Baker and the Scottish Labour Party look ill-judged to say the least. Also notice the difference in don't knows answers to question (1) and (2). 21% suggested they could not be certain about what the decision to release Megrahi was premised on, whether BP was involved or only the processes of Scots Law were observed. However, only 7% of don't knows were undecided when it came to whether a Scottish Government delegation should have headed to Washington. We can't tell from these figures how far the responses to the two questions correlate. For example, it is possible albeit unlikely that someone suspecting BP involvement might nevertheless not much care for American institutions and thus support non-attendance. Equally, however, it seems more probable that the 14% difference represents just how potent is that strand of opinion I attempted to describe at the outset. 

One final thought. Although I've no spy in the heart of the party's hierarchy, I would be exceedingly surprised if the SNP took this opportunity only to ask these three questions and weren't canvassing more generally on what the Scottish public make of Megrahi's release one year on, in the context of his ongoing life, if not vitality. Perhaps they did not do so on this occasion and indeed only posed these three enquiries, however, it beggars belief that no attempts are being made to gauge any "Lockerbie case" effect on 2011's Holyrood elections, however macabre that becomes. If so, I'd be exceedingly curious to know if such polling has been commissioned and what information the party has refrained from releasing into the public domain thus far.

Update

Coincidentally enough, it turns out that one of the respondents involved in this YouGov poll was Nairn and Spain-based blogger and twitterer Bill Cameron. He has exceedingly helpfully been able to confirm that he was indeed asked several additional questions in the course of the poll, including the crucial questions about respondents' attitudes to Megrahi's release. That answers my if question.  The SNP is clearly taking a close look at public opinion here. So what might the rest of the answers have been? Unlike the figures disclosed above, no doubt the responses to the central questions are somewhat more nuanced, breaking down along a number of lines and may take some time to digest. It may be that the other responses will never see the light of day. Either way, I'm sure they're giving someone a fascinating insight into this knotty ethical and political conundrum. . 

"Stonewalling" (v).

I don't know about you, but I've been following American Senators Robert Menendez, Kirsten Gillibrand, Frank Lautenberg and Charles Schumer's barely-half-informed innuendo and bare-faced defamation at a distance, without seeing the whites of their eyes at it were. I like to put names to faces, and a quick search yielded all four arrayed in this sententious, scandalous wee press conference.

You may be surprised by the extent of the clear, uncompromising claims they're making, despite the want of substantiating evidence. I certainly was.  While my expectations were low, I hadn't quite taken cognisance of  the depths of iniquity and slander to which these self-seeking U.S. politickers are willing to sink. They're like offended children, eyeing their geometry homework without comprehension, having daydreamed through the whole class in which the various principles and their complexities were explained to them. "I don't understand", they mew. "I wasn't listening - and it is all your fault!" Humble creatures these, they'd have you believe, bravely taking on powerful commercial interests, wielding only the torch of truth for illumination, hacking at a noxious thicket of cover up and conspiracy. I imagine this rather appeals to that Manichean, self-righteous bent in America's account of itself and its politics. All of which might be rather more interesting, if any of the individuals involved showed the slightest interest in the subject they declaim over with such exaggerated and clownish gravity.  Without any apparent familiarity with the distribution of devolved powers in the UK, the clearly available public record, without acknowledging the papers which have already been published online, the senators permit themselves outrageous defamations and warrantless allegations. In short, their behaviour bears all the hallmarks of bad faith, or as someone else styled it, simple "grandstanding". George Kerevan expands on the theme in an article in today's Scotsman. Last week, Love and Garbage summoned our imaginations away to a thoroughly amusing parallel universe in pointed parody of the whole escapade.

Just a couple of bits of footage for today, then, for those of you who've not had the pleasure of seeing the US senators at first hand. Firstly, I'd encourage you to actually take a peek at this BBC video of Senator Menendez latest (I suspect actually somewhat abashed) press conference, in which he issued cries of "stonewalling" and encouraged those witnesses who rebuffed his accusatory advances - presumably including Jack Straw and Kenny MacAskill but not Tony Blair - to attend a rescheduled Senate hanging and haranguing, as a mechanism to - I kid ye not - "clear their names".  If you're not familiar with the other three US Senators, then you are in luck. You can see the increasingly hysterical submissions of all four of those valiant seekers after truth at the press conference mentioned above, with a lurking Menendez playing the eminence gris at their heels...

 

English Platonists & Scots Aristotelians

Although I’m sufficiently late with this piece of information, such that it probably doesn’t count as news, for the completeness of the record I thought I’d mention it. As regular readers may know (or at least, those of you who don’t feel the scales forming on your eyes as I indulge in the occasional legal digression...), I’ve been following the Scottish pleural plaques litigation, in which big insurers are attempting to circumvent Holyrood’s legislative prerogatives and use a combination of the Scotland and Human Rights Acts 1998 to wriggle out of paying compensation. As many of you will know, pleural plaques form as a consequence of exposure to asbestos but only very rarely demonstrate physical symptoms. This became a political issue after the judicial committee of the House of Lords held in the Johnston case that pleural plaques did not represent a recoverable harm, contrary to the prevailing pay-out practices among insurers at the time. While Holyrood determined to enact legislation to reverse the judgement (which is now the subject of the contested case), the position and England and Wales remained uncertain. Would the government take action or not? On the 25^th of February last, those who take an interest received their answer. Jack Straw of the UK Ministry of Justice confirmed that the Westminster government would be introducing no English and Welsh equivalent to the Scottish Act.

“On the basis of medical evidence received during the course of this review, including authoritative reports from the Chief Medical Officer and the Industrial Injuries Advisory Council, we are unable to conclude that the Law Lords’ decision should be overturned at this time or that an open-ended no-fault compensation scheme should be set up. While the current medical evidence is clear that pleural plaques are a marker of exposure to asbestos, and that exposure to asbestos significantly increases the risk of asbestos-related disease, any increased risk of a person with pleural plaques developing an asbestos-related disease arises because of that person’s exposure to asbestos rather than because of the plaques themselves. However, if new medical or other significant evidence were to emerge, the government would obviously reassess the situation.”

Quite what affect this judgement might have on the arguments adduced in the next stage of Axa General Insurance Ltd Petitioners judicial review is open to speculation. I tip my trilby to Scots Law News blog for this piece of intelligence.

Secondly, to bundle my legal remarks, the United Kingdom Supreme Court has recently been up to mischief on another Scottish case concerning Holyrood’s limited legislative competence and the discernible ambit of the same. In Martin & Miller v. Her Majesty’s Advocate, Lords Hope, Walker and Brown divided with their brethren, Lords Rodger and Kerr on the small matter of traffic offences. Road Traffic Offenders Act 1988 initially provided that the crime could be prosecuted summarily before a sheriff, or on indictment, to be tried by a jury. The maximum penalties in the 1988 Act were six months on summary conviction, twelve months on indictment. Enter section 45 of the Criminal Proceedings etc (Reform) Scotland Act 2007. Under “Other Statutory Offences”, the 2007 Act provided that sheriffs hearing cases under all relevant statutes – i.e. those triable summarily – would have their sentencing powers increased in line with the earlier common law provisions, from not more than three months, to a maximum of twelve months imprisonment. So much, so simple. This becomes a contested legal case because various people prosecuted under the 1988 Act were sentenced to periods of imprisonment greater than six months by their sheriffs, as sanctioned by the legislation of 2007. Here is where it gets tricky. In Schedule 5 of the Scotland Act 1998, which sets out powers reserved to Westminster, appears E1(d): “the Road Traffic Act 1988 and the Road Traffic Offenders Act 1988”. Thus, argued those who got the jail for a period of more than six months – because the 1988 Act is a reserved matter, Holyrood was going beyond it legislative competence in purporting to change the maximum summary sentencing power of sheriffs who convict accused persons under the Road Traffic Act 1988. The majority, with former Lord President of the Court of Session Lord Hope at the forefront, ultimately determined that Holyrood had behaved itself and not quixotically ignored the constraints of the Scotland Act. The minority were robust, critical and lead by the other Scottish judge on the Court, Lord Rodgers.

Advocate Aidan O’Neill QC (whose already been mentioned a couple of times on this blog) uses the case to leap into the philosophy of the thing, reflecting on how Platonic and Aristotelian modes of thought might inform out understanding of judicial philosophies. Although an appeal to ideal-types, O’Neill broadly identifies Scots Law with a more rule-predicated, Aristotle-echoing ruling spirit, while English judicial wisdom, he argues, engages with Plato’s considerations of a wise man, a Philosopher-Judge in this case, applying his wisdom to a concrete case, rather than rule-roteing. Quite how satisfying this typology is in the context of division between the two Scottish judges – I leave to your learned discretion. For those of you interested in such things, the piece can be read here.