Monday, 30 January 2012

Mr Milliband reminds me

Mr Milliband's visit and strange thoughts today reminded me of something I wrote on September 6th 2010.  I thought I'd dig it out:


A Case for Independence

I want to state a case for independence to start it here and develop it over time. I tire of the economic argument, of the statistical ping-pong, of the sterile subsidy/surplus, poverty/plenty, barren/bountiful debate. It shrinks the debate on Scotland’s future to little more than a car boot sale haggling session; it belittles our politics and narrows our politicians. A country is more than a balance sheet, a nation more than a cash account, a people more than a bank statement. There are wealthy nations and there are poor nations and each of them goes about its business and its international interactions seeking its best advantage. Most of them run annual deficits and carry large debts. Seldom does any nation decide that its wealth or its poverty requires it to be subsumed by another and seldom does any nation decide that its wealth or its poverty requires it to secede from such a union; nations are more than the sum of their sovereign funds, you cannot place the value of a community in a set of accounts any more than you can weigh identity or measure the dimensions of belonging. The ‘economics’ debate brings to mind Bierce’s definition of a cynic as someone who knows the price of everything and the value of nothing.
We know that Scotland is a wealthy country, one of the richest, and we know that we’ll have a moral obligation to hold out the hand of friendship and assistance to nations which need it, wherever they are – it’s an obligation and an opportunity we should welcome. Our wealth is not in and of itself an argument for independence, though, any more than its absence would be a case for the continuation of the UK. Our common future deserves more careful consideration than that and should be rooted in a deeper understanding of what it means to be a Scot. Or, to quote Walter Scott:
Breathes there the man with soul so dead
Who never to himself hath said,
This is my own, my native land!
Whose heart hath ne’er within him burned,
As home his footsteps he hath turned
From wandering on a foreign strand!
If such there breathe, go, mark him well;
For him no minstrel raptures swell;
High though his titles, proud his name,
Boundless his wealth as wish can claim
Despite those titles, power, and pelf,
The wretch, concentred all in self,
Living, shall forfeit fair renown,
And, doubly dying, shall go down
To the vile dust from whence he sprung,
Unwept, unhonour’d , and unsung.
It is that unquenchable affection for a people, a land, a place, a belonging that marks a people’s link to their country, perhaps even more so in stateless nations like Scotland. It is the drive that comes from that which leads many to the nationalist cause and it is the yearning to belong to that land and the people of the land that drives civic nationalism; an inclusive and welcoming thinking. It does not easily lend itself to outlining a case fro independence, however, and Scotland needs that case to be laid out.

Muhammad Ali Jinnah, first president of Pakistan and its chief architect, laid out a case for nationhood. He appears to have used the same formulation of words on several different occasions and used them to, amongst other things, explain why Pakistan should be created. It’s a clear and cogent phraseology:
We are a nation with our own distinctive culture and civilization, language and literature, art and architecture, names and nomenclature, sense of values and proportion, legal laws and moral codes, customs and calendar, history and traditions, aptitudes and ambitions, in short, we have our own distinctive outlook on life and of life. By all canons of international law we are a nation.
It’s approaching 70 years since Jinnah laid out this vision of the distinctiveness of his nation but the clarity of his argument means that it applies just as much to Scotland today; we have our own distinct and distinctive culture, evolving and ever-changing it is true, and welcoming of additions from new members of our society to create what William McIlvanney happily described as “our mongrel nation”; a distinctive civilisation – an understanding of civic society which differs in scope and direction from our English neighbours and, to a great extent, from our other European neighbours, falling closer to Scandinavian mores but still distinctly Scottish; our own languages, Gaelic, Lallans, Doric, and Scots English spring easily to mind; our literature and art have proud traditions which resonate Scottishness but stand easily and well as part of the international movements; our architecture has a history rooted in Scotland and touching European styles; our names are distinct although our nomenclature might not be quite so clear-cut an issue; our sense of values and proportions seem markedly different from those of our neighbours; our laws and legal systems are our own; our customs and calendar are marked by uniquely Scottish events (I imagine that this isn’t what Jinnah meant by calendar but it still stands); our history and traditions are steeped in the mythology of Scotland. In short, we easily fit Jinnah’s definition of a nation. But it seems not enough.

Ernest Renan, 19th century French theorist, had another take on nationhood, one which I can cleave to readily:
A nation is a soul, a spiritual principle. Two things, which in truth are but one, constitute this soul or spiritual principle. One lies in the past, one in the present. One is the possession in common of a rich legacy of memories; the other is present-day consent, the desire to live together, the will to perpetuate the value of the heritage that one has received in an undivided form. Man, Gentlemen, does not improvise. The nation, like the individual, is the culmination of a long past of endeavours, sacrifice, and devotion. Of all cults, that of the ancestors is the most legitimate, for the ancestors have made us what we are.

A nation is therefore a large-scale solidarity, constituted by the feeling of the sacrifices that one has made in the past and of those that one is prepared to make in the future. It presupposes a past; it is summarized, however, in the present by a tangible fact, namely, consent, the clearly expressed desire to continue a common life. A nation's existence is, if you will pardon the metaphor, a daily plebiscite, just as an individual's existence is a perpetual affirmation of life. That, I know full well, is less metaphysical than divine right and less brutal than so called historical right.
That accepted continuum argument would seem to hold water well; the social capital, the bonds that hold Scotland as a nation, only exists with the consent of the people. The folk memories and the common aspiration of the people of Scotland are what makes Scotland, the zeitgeist of modern Scotland holds Scotland of the past and Scotland of the future in its hands. The commonality of those who belong to Scotland now is what Scotland is and their joint aspiration will be what determines her future. Where you came from doesn’t matter half as much as where you want to go.

It’s been said by some that a working class Scot has more in common with the working classes in other nations than with other Scots who aren’t ‘working class’ and that there’s a ‘Social Union’ of shared values and mutual cultural interests which binds all on these islands together and which will survive Scots independence. There is little, if anything, to support either of these affectations, they appear as confections created to bolster political positions. I have cousins who are English, born on the Albion side of the border and have lived there ever since, proud of where they come from and proud, too, of their nation. They’re my family and always will be – even during World Cups – but I have more in common with those who have chosen Scotland for their home.

I think it was Oliver Brown who said that there are two types of Scot, those lucky enough to be born here and those intelligent enough to move here, and that seems to fit what can be seen in the towns and cities of Scotland day and daily. Those who have chosen to make this country their home sit easily in the values that Scotland shares, the investment they make in this nation shows the commitment they have whether they have just stepped across the border from England or flown in from Poland or Pakistan or India or Africa or, indeed, anywhere else in the world. Their values chime with those we recognise most happily in ourselves and that we, in our commonality, appear to share; perhaps not universally but in clear majority terms. They have a shared existence, a shared belief, a desire to share in the ‘large-scale solidarity’ that is Scotland and their lives are led to the same rhythm as ours. I find a greater affinity with someone who has chosen to come here than with those who have always had their allegiance tagged to another nation.

What, then, of those who set forth from Scotland and settle elsewhere? They appear to be of at least two types – those whose romantic hearts have remained behind and those whose eyes are set on other lands and ne’er backerties do they cast. There is ample evidence that Scots have held fast to their home nation even when living on the other side of the globe (read Kenny MacAskill’s book Wherever the Saltire Flies for detail) and there is an equal amount of evidence that there were Scots who never thought a second time about shaking the dust of Scotland from their shoes (although we still like to claim them as our own when it suits us). Those who never look back seem to be on a par with those who have never looked here, their links with Scotland are broken, it has become just another country to them, quite possibly as foreign a country as the past can make it. Scots who have moved abroad but carry a piece of Scotland with them have never truly left but their connection is simply not as strong as the connection between Scotland and someone born elsewhere who has chosen to live here – they are Scots just as much as any of us are Scots, it doesn’t matter whether you can trace your Scottish roots back to an ancestor who sat in McAlpin’s court or your Scottish roots began at the airport last week if you’ve made the commitment to live in Scotland you’re a Scot if you choose to be one.

I don’t pretend that Scotland is free from racism nor would I contend that xenophobic sentiment is a minor issue here. I dislike the smugness on this issue that Scots, including myself, so often display as if we were better people than those elsewhere but we have a civic and collective attitude which encourages assimilation into our nation – some of the most passionate Scots I have met have been the children and grandchildren of immigrants, building a belonging here while still holding a candle for their ancestral homeland. Internationalism burns clearly where people can feel a part of a new nation as well as retaining their own histories. I would like to think that we can aspire to the same level of acceptance of others that Ataturk displayed while speaking to the mothers of ANZAC soldiers who died at Gallipoli:
Those heroes that shed their blood and lost their lives...
You are now lying in the soil of a friendly country.
Therefore, rest in peace.
There is no difference between the Johnnies
And the Mehmets to us where they lie side by side,
Here in this country of ours.
You, the mothers, who sent their sons from far away countries...
Wipe away your tears.
Your sons are now lying in our bosom
And are in peace.
After having lost their lives on this land, they have
Become our sons as well.
His constant refrain was that nations are people in the land and that the strength of nations depends upon the strength of its people; in a speech in Ankara in 1920 he said:
Today, nations recognize only one sovereignty: sovereignty of the people. Looking at the details of an administration we would see that all begins in a village, a community, in other words with persons. People can be led by anyone in the wrong or right direction if they are not educated. For his/her salvation every person must take his/her future in his/her own hands. An institution built from bottom to top, from the foundation to the roof will certainly be strong.
Ghandi expressed similar sentiments:
We have long been accustomed to think that power comes only through legislative assemblies. I have regarded this belief as a grave error brought about by inertia or hypnotism. A superficial study of the British history has made us think that all power percolates to the people from parliaments. The truth is that power resides in the people and it is entrusted for the time being to those whom they may choose as their representatives. The parliaments have no power or even existence independently of the people.
The continuing theme is that it is the people who are important, not the institutions, that the cohesiveness of a people indicates both nationhood and the strength of the nation. There is no social union crossing national boundaries that can be as strong as the union of people within those boundaries. I think the concept of the social union was first touted in Jim Sillars’ book The Case for Optimism where he noted the parallel concerns of FBU members in London and Glasgow. I would speculate that firefighters’ professional concerns, though, retain a similarity across the globe as has been so often demonstrated with the efforts firefighters here will put in to ensure that their colleagues in other countries have equipment which will help ensure their safety and let them do their jobs effectively, while their cultural and social concerns diverge markedly – it isn’t a social union that motivates them, it’s a professional bond and similar bonds can be seen in many other professions.

Is this a case for independence? Not of itself; there is no restriction on what the people of a nation can do with their sovereignty – it’s theirs to do with as they will, even to cede control of it to others – and the case for independence is still to be made. It rises from the contention that the interests of Scotland differ from those of the UK, that our pooled sovereignty is not serving our people in the best possible manner – and that is the case we have to argue.

I have heard the case made that “an independent Scotland would not have gone to war in Iraq” and I wonder whether that is thought to be a compelling argument. Leaving aside the fact that we have no way of knowing what an independent Scotland might have done nor how it would have developed and where its best interests would have lain at the time, how is this any more a compelling argument than arguing that an independent Scotland would have a different speed limit or a different benefits system? It hinges on the fall of one decision in one direction or the other and is no more an argument for independence than the assertion that vegetarians and meat eaters disagree is an argument for any such couple to divorce. The dissonance between Scotland and the UK must be greater than this for the case to be made for independence and I’d like to take a stab at establishing the basics of that case first and developing it in greater detail later.

There are shining contrasts between the civic discourse of Scotland and the civic discourse of the UK – interestingly often seen most starkly in those UK politicians who come from here, perhaps a proximity thing, perhaps because they try too hard – and there are equally large contrasts between the reported opinions of Scots and similar opinion polls across the UK, mirrored, it would seem, by the vox populi of ‘letters to the editor’, broadcast phone-ins, those dreadful ‘stop you on the street corner and ask your opinion of asylum seekers’ spots, and all the other trendy and with-it techniques of garnering audience participation to justify broadcasting.

It all suggests that Scotland is a nation with a different social conscience from that of the UK, we are a more collectivist people – an attitude more Scandinavian where our sense of decency reaches out for us and we see a society in balance, a society which holds to yachad, which embraces togetherness, collectivity and togetherness.

We see the political discourse of Scotland being a welcoming of asylum seekers and holding close of refugees – a discourse which is echoed by the neighbourly welcoming those in need through community action groups. Even if there are tensions at times and even violence, the over-arching is a welcome, a social commentary from the roots of Scotland which disparages the actions of the UKBA and rails against the inhumanity of decisions made in the tribunals. The political discourse in the UK, meanwhile is that of the fortress, of quotas and caps and fast rejection, the contest seems to be who can hang toughest, who can play the card closest to the wire, and who can match the vitriol of the least reasonable newspapers. The civic chatter is muted at best, and the words from the pens and keyboards of the concerned populace appears to be concerned with preserving property and lifestyles rather than offering friendship and humanity.

Where the UK argues for the retention of a nuclear weapons facility in order to play with the big boys on the world stage, Scotland revolts against the inhumanity of them. Where the UK political slant is that we need to be a nuclear power in order to retain our permanent member position in the UN Security Council, Scotland’s political viewpoint is, generally, more geared towards working productively with a larger number of other nations for the greater good, and taking our turn at doing the work in the Security Council when it comes round – more a cooperation in world affairs than the desire to rule them that seems to be the UK position – a position which Dean Acheson perhaps measured accurately. Internationalism rather than imperialism, perhaps?

Scotland favours offering opportunities for self-advancement and entrepreneurship rather than the glorification of wealth; the encouragement of employment opportunities and the helping hand back into work rather than the provision of advice about mounting bicycles and heading off in search of the promised land; and the protection of those who cannot work rather than their vilification as scroungers.

Public ownership of the public sector and the infrastructure of the state is regarded as a good thing in Scotland, far less so across the UK, and the argument that the public sector drags down the private sector is contested vigorously here but appears to be accepted wisdom across the UK – even when the private sector turned to the public sector recently and begged for investment in massive public sector procurement projects to help the private sector. ‘Project Privatise UK’ which has appeared in many guises over the years has been met with increasing opposition in Scotland – even to the point of turning it back (the SNP Government, obviously, but don’t forget that the last administration did their bit with things like the Skye Bridge). While there continue to be moves afoot in the UK to toll roads Scotland has removed tolls from bridges because they are part of the roads network (again, the SNP Government with panache but the previous mob also got into the act with the Erskine Bridge).

Whisper it, but there’s a tendency in Scotland to favour progressive taxation while the UK seems set on moving towards flat taxes, having only come towards progressive tax as a necessity; and a willingness in Scotland to use the business tax system to encourage smaller businesses to thrive rather than simply create conditions for yet more massive profits for those already making fortunes.

It’s not an exhaustive list by any manner of means but it is indicative of some of the big issues. It can be expanded as we go – or, indeed, challenged. It serves, I think, to indicate that Scotland thinks and feels differently about big issues in society, that we pull towards a different path, that we would be more comfortable, more stable, feel more in solidarity if we went our own way.

The UK politicians aren’t necessarily wrong to follow the paths they are taking and it may be that the policies they have chosen to pursue are the right policies for some parts of the UK. They may have positioned the UK just right for its interests but they do not appear to be Scotland’s interests.

The wellbeing of a nation, of a people, is about much more than economics, it’s about how a nation walks together, about how we rub along, agree and debate and decide the way forward. I can’t understand why, as one of my SNP colleagues put it, some politicians don’t appear to want Scotland to have an economy fit for independence even before it happens, but I don’t think that it’s the most important point in the debate. Poets contribute as much as economists, engineers as much as programmers, it’s a collective effort that drives a country forward and it seems that the impetus to drive Scotland forward is missing from the UK agenda – not out of conspiracy or evil intent but merely because Scotland’s interests do not align with those of the UK.

Scotland is pulling in a different direction, our interests lie other than alongside those of the UK, we have different attitudes, different collective opinions, a different solidarity. It isn’t just that we might have come to a different conclusion in taking this decision or that decision, it’s that we approach the decisions differently.

We are a nation with all the attributes of a nation and all of the gatherings of a nation, a nation whose sovereignty is currently commanded to take pathways which don’t sit easily with us, with our beliefs or our collective conscience.

That is the case for our independence, that is why we should reclaim our statehood, that is why Scotland should rejoin the family of nations - Scotland is a different nation and should be seen as such.

Wednesday, 18 January 2012

Jim Wallace - is he serious?

I've been reading and rereading Jim Wallace's comments about his opinion on the legality of Scotland's referendum.

Mr. Wallace has been a politician and a lawyer. He is a QC - I have no idea whether that's a Parliamentary silk he wears - and he is a senior legal advisor to the UK Government on Scottish legal affairs.

Given, though, that he is the law officer who would refer the case to the Privy Council (the Supreme Court these days, don't you know) and he has been pontificating pubically (surely a bad thing for a senior law officer or a Government advisor to do) about the independence referendum possibly being ultra vires, surely we are entitled to know whether he would refer this Scottish legislation to the Supreme Court in London?

He's carefully avoided talking about it, as has Michael Moore, but surely it's in the interests of Scottish democracy for him to let us know whether he will or not?

Mind how you go!

Saturday, 14 January 2012

Typical! They always want to trump you!

You say nothing for a wee while and you get some peace, you make a tiny wee observation and ...

Yesterday I pointed out that Labour was whinging about not being consulted about the independence referendum (in spite of the fact that everyone will be consulted) when its members were at liberty to take part in the National Conversation from its start date some four years ago or so.  Within minutes I was being given lawyerly advice that I hadn't gone back far enough.

"That's nothing," quoth m'learned friend, "they're all demanding a referendum as soon as possible but if they'd supported Salmond's amendment to the referendum legislation in 1997 we would have had an independence referendum on September 11th 1997 - but they didn't."

"Not even George Foulkes?"

"Not even oor wee George."

Lawyers!  Take my advice - don't listen to them!

Mind how you go!

Friday, 13 January 2012

How soon they forget

mMost interested was I to hear Johann Lamont demand that Labour & co be involved in the arrangements for the independence referendum. She apparently now wants to be part of the National Conversation.

Such a pity, then, that she and her colleagues passed up the opportunity four years or so ago when the Scottish Government  invited all of Scotland to get involved in the National Conversation.

Labour didn't get involved, of course. In high dudgeon (just north of Low Dudgeon) they marched off, under the unerring leadership of Wendy Alexander, to make common cause with the Tories and the Lib Dems - not for the last time - in the Calman Commission.

Oh yes, they have a tantrum now and then but they passed up the chance to contribute. Ach weel, maybe they ken noo.

Mind how you go!

Thursday, 2 June 2011

Supreme Havers

An interesting development in the Supreme Court debacle as Jim Wallace comes barging in, unarmed, to a battle of wits.  The good Lord Wallace is quoted as saying
"The Supreme Court has made clear as recently as last week in the Fraser ruling that the High Court in Scotland remains the court of last resort on criminal matters.

"I sometimes wonder if those who are the most vociferous have read these rulings."
I have.  Unlike Lord Wallace, I didn't take that assertion at face value, I looked at the disposal of the case where the good Lords in the UK Supreme Court ordered Scotland's Supreme Courts to quash the verdict of the High Court, ignoring their own claim that they would respect the right of the High Court of Justiciary to remain the ultimate court of criminal justice in Scots Law.

To be fair to the good Lords in the UK Supreme Court, I thought I'd go back and have a look to see when the House of Lords last ordered a Scottish criminal conviction quashed.  I've searched the records back to and including 1989 and there hasn't been a single case where the House of Lords overturned a Scottish criminal conviction as the UK Supreme Court has in the Fraser case and I'm betting that it has never happened.

The UK Supreme Court was supposed to take on only cases which would have been heard in the House of Lords (section 40(3) of the Constitutional Reform Act 2005) and, importantly, that excludes criminal cases for historical reasons which go right back to the Treaty and Acts of Union.

If you want more evidence of the paucity of the case for the UK Supreme Court, I offer you the comments of Professor Peter Duff of Aberdeen University, touted as a criminal justice expert - "The judgments of the Supreme Court concerning Scotland are always given by Lords Hope and Rodger as the Scottish judges. The English judges simply fall into line."  If that is so then why do they sit on the bench at all?  If they are no more than ballast is that not indicative of them being very expensive window dressing for a court which sits as two elderly and very learned men now divorced from the Scots law which they served so nobly and so well for so long?  (Lord Hope is approaching his 74th year and Lord Rodger his 68th).  And if, as the Professor alleges, the other Justices (yes, Tony Blair took the US style all the way) are merely passengers on Scottish cases, why did Lord Brown write a minority judgement on the Fraser case - a judgement on the operation of a legal system in which he is not trained and has not practised?

Or take that eminent human rights lawyer, John Scott, who said "I think there's a sense of perspective being lost. Only a very tiny number of cases ever go to the Supreme Court. It doesn't have jurisdiction over the vast majority of criminal cases."  This from a man whose successful career has depended upon arguing the general case into the individual point and extrapolating from a single point to create a generality.  He should know full well the importance of "a very tiny number of cases" - it's his stock in trade.

There's one more thing.  Those shouldering high the UK Supreme Court argue that it isn't acting as an appeal court, here's Lord Hope's take on the situation:  “We are simply here to do what a court of appeal always has to do, which is to review a decision if there is reason to do so.”

It's time it went.

Monday, 30 May 2011

Who speaks for business in Scotland?

It has occurred to me (I'm obviously a bit slow) that there's an interesting point to be made about business in Scotland.  I've already made clear that I believe that the FSB has more business clout in Scotland than CBI Scotland or the Scottish Retail Consortium (not that you'd know it from the way lazy journalism treats these two self-appointed, self-interested and vacuous bodies as the font of all knowledge on Scottish business), that reform Scotland probably speaks more for business in Scotland than CBI Scotland, and that the Scottish Retail Consortium is a fictional body, having not actual base in Scotland nor any uniquely Scottish members.

What is, perhaps, even more striking, however, is that there are more Scottish businesspeople who pledged their support for the SNP in the recent election than there are members of CBI Scotland.  I think we should always remember who businesspeople in Scotland really turn to - the FSB, Reform Scotland and the SNP!

Here are some of the ones who pledged for the SNP during that election:

Harvey Aberdein
Aberdein Considine

Sandy Adam
Springfield Properties

Colin Adams
Hardies Bar

Lynn Adams
The George Bar

Mohammad Adrees
Hilltown Convenience Store

Mohammad Afzal
Bismallah Halal Food Store

Jameal Ahmed
Monktonhall Newsagency

Mohammed Ahmed
Bangla Spice

Tariq Ahmed
Chilli Cottage

Parvez Ali
Flowerscene

Shahid Ali
Urban Togz

Kenny Anderson
Anderson Construction

Mohammed Ashraf
Station Garage

Umer Ashraf
iCafe

Naveed Baksh
ilovefruit.co.uk

Rohail and Pauline Bari
Cafe Kisimul

Alistair Barron
Barron Wright

Ricky Bawa
Lighting Warehouse

Audrey Baxter

Ruari Beaton
Am Bothan Bunkhouse

John Bell
LSK Supplies

Glen Bennett
EAE Ltd

Crawford Beveridge CBE
Autodesk

Shaoib Bhatti
Lanark Post Office

Danny Bonnar
Bonnar Sand & Gravel Co Ltd

Roy Brett
Ondine Restaurant

David Brotchie
Saltire Print

Peter Broughan
Rob Roy Films

Bill Brown
W.D. Brown & Sons

Les & Gill Burkey
Daisychain

Saad Butt
Delicious Too

Chris Cairns
Plumbwide

John Cameron
Balbuthie Farm,
Past President National Farmers Union of Scotland

Louise Cameron
Phase 3 UK Ltd

Shauna Cameron
Shauna Cameron Architect

Willie Cameron
Loch Ness Marketing
Colin Campbell & Jason Harvie
The Pelican

Fraser Campbell
COBBS

Iain Campbell
Dungannon Petroleum Ltd

Joseph Cannon
Flava Coffee Company

June Carroll
boohoobaby.co.uk

Mary Case
Blackhall Framing Gallery

Ninian Cassidy & Hamish Mackay
Scotia Cars

Andrew Charles
J. Charles Fish Merchants

Ian Chisnall
Printing Services (Scotland) Ltd

Linda Christie
Cameron Guest House

Laurie Clark
Anglo Scottish Concrete Holdings

Hugh Clarkson
ARC Printing Ltd

Neil Corrall
E.A.R.L. on the Green

Michael Corby
Mackenzie Frain Ltd

Bob Costello
Sidlaw Executive Travel (Scotland) Ltd

Lindsay Cross
Kilts by Lindsay

Steve Cumming
Tayfield Investments Ltd

John De Rosa
Cafe Tino

Peter de Vink
Edinburgh Financial & General Holdings

Bill Dewar
Home Spring Ltd

Thomas Dover
The Garden Maintenance Company

Tom Duffin
X-sail.com

Jeff Duncan
Pointblank Media

Brian Durkin
Braid Wines & Altar Supplies

Jennifer Easton
JAED

Barrie & Dane Elder
Bridgeview Station Café and Restaurant

Andrew Fairlie
Andrew Fairlie at Gleneagles

Sir Tom Farmer

Mark Ferguson
D-Tech Graphic Design & Print Ltd

Athole Murray Fleming
Athole Design Publishing Ltd

Dave Forbes
Forbes Newsagents

Neil Forsyth
The Heatherbell Inn

Hebbie Fowlie
Bert Fowlie Butchers

Amanda Frazer
Larick House B&B

Billy Gallacher
GPM Estate Agents

Blair Geddes
hip-furniture.co.uk

Joseph Giacopazzi
Giacopazzi & Company Ltd

Martin Gilbert

Francis Gilhooley
Leadburn Manor Fly Fishing Centre

Ian Gillingham
Exordia Software Ltd

Kevan Gordon
Fix My Mac

George Grant
Grahams Road AutoShop

Kevin Greig
go360

Abdul Hamid
Auto Gas Convertors

Michael Hance
Classic Camper Vans Scotland

Neil Harrison
Automatic Protection Ltd

Gordon Henderson
Foxlane Garden Centre

Stuart Hendrie
Torwood Landscapes

Julie Herd
Julie’s

Bobby & Stewart Hill
Hydracrat

Sam Hinks
HinksBrandwise

Steven Hobson
Hobson’s Choice, Shoe Repairs, Key Cutting & Engraving

Sarah-Jane Hunter
SJ Fitness Ltd

John Hunter-Paterson ACII
John Hunter-Paterson Chartered Insurance Brokers

Derrick Hutchison
Derrick Hutchison & Sons, Painters and Decorators

Shezad Ishtiaq
Mirch Masala Grill

Shabbir Jafri
Primesite

Andrew Johnstone
J Terotech Ltd

John Keddie
Bogside Farm

Paul Keegan
Total Logistics Concepts Ltd

Patrick Kenny
The Mayflower

Norman Kerr
A and N Kerr Barvas Glebe Farm

Paul Kerr
P.K. Heating & Plumbing

Kevin Key
Enjoy-a-ball Coaching Ltd

Abdul Khaliq
Express Knitwear

Ozaer Khan
Halal Continental Food Store

James Kilday
Yankee at Home Ltd

Simon Kindlen
Kindlen

Ross Kirk
VK Timber

Aman Singh Kohli
Kohli Travel

John Laidlaw
The Blue Grotto

Steven Lawrence
TCD Architects

Andi Lothian Snr
Insights Learning and Development Training Ltd

Douglas Mabon
D M Roofing and Roughcasting

Dan Macdonald
Macdonald Estates Plc

Donald MacDonald CBE
Past President, Edinburgh Chamber of Commerce

Donnie and Dena
MacDonald Rodel Hotel

Ewan and Shaun MacDonald
Conon Brae Farm

Claire Macdonald
Kinloch Lodge

Maggie Macdonald
Style Conscience

Marie Macklin
Klin Group

Johanna MacLellan
The Caledonian Hotel, Fort Augustus

David MacLeod
Rybka

Asif Majid
Rite Property

Alex J. Martin
Alex J. Martin Builders

Sir George Mathewson

David Maxwell
Steel Engineering

Graham McCabe
Automotive Bodyshop

Tony McCaffrey
The Sloping Garden Company

Jim McColl
Clyde Blowers

Mark McCormack
The Tartan Shop

Richard McCulloch
Dem-Master Demolition Limited & Total Recycling

Alex McDonald
AMD Computer Services

Tom McGregor
McGregor McMahon & Associates

Jamie McGrellis
Bespoke Bikes

Gordon McLennan
The IT Set

Des McMullen
Holmlea Roofing Services

Ken McNab
The Travel Company Edinburgh

Grant McNeil
Green Mantle Pub

Andrew Meek
A.G. Crafts and Fabrics

David Miller
Miller Hair and Beauty

Marie Moffat
The Eildon Centre & Rebel Rouser Disco

Reid Moffat
E&R Moffat

Steven Moffat
Shhh-oohs.co.uk

Charles Morgan
House of Beauly

Rod Munro
Munro Newsagents Ltd

Andrew Murray
My Lawyers

Andrew Murray & Jane Brown
T/A Allan & Black Coach Hirers

Tracy Murray
Cove Boutique

John D. Murrie
East Highfield

James Nicholson
Tasty Bites

Sebastian Nonis
Forfas Road Service Station

Jim Norris
Solar Energy Systems

Sandy Orr
MacDonald Orr

Jack Paterson
Saltire Graphics

Don Patton
Manorhead Ltd

Andy Pearson
Tweed Homes Ltd

Andrew Perry
Flyer Scotland

Eric Rae
E. Rae & Son Electricals

Linda Rae
The Flower Shop

Abdul Raheem
VIP Functions

Aurelia Reymond-Laruinaz
Secret-Scotland.com

Norman Richardson
Norjan Ltd

John Robertson
Burntisland Fabrications Ltd

Hermann Rodrigues
Suruchi Restaurants

Vivienne Rollo
Kishorn Seafood Bar

Ian Ruddick
Pedian Services
Bill Samuel

Ian Scarr-Hall
GSH Properties Plc

Ashfaq Shah
Shah Accountants

Mark Shaw
Hazledene

Yasin Sher
Tech-Two

Bill & Johnetta Simpson
The Biggar Flower Shop

Faith Simpson
Faith Simpson Chartered Certified Accountants

Stewart Sinclair
Rainbow ink co

Nicky Singh
City Dry Cleaners

Hamish Smith
Hamish D Smith Jewellers

Jay Smith
Employment Enterprise

Thomas Smith
Stepper Technology Ltd

Brian Souter
Stagecoach

Stewart Spence
Marcliffe Hotel & Spa

Alisdair Stephen
Hebridean Contemporary Homes

Neil Stephen
Dualchas Building Design

Hamish Steventon
Chocolate Emporium

George Stewart
Cross Keys

John & Iain Stirling
Stirling&Stirling

Andrew Symington
Edradour Distillery

Willie Tait
Klondyke Fishing Co

Andy Taylor
Norland Lettings

Anne Thomson
Ella Drinks

Billy Tosh
The Bakehouse Scotland Ltd
Alison Twaddle
Woodhill Pharmacy
Mahmood Ullah
Lets B Wise

David Urquhart
Urquhart Travel
Ricardo Varani
Varani’s Forum Cafe

Antonio Vastano
High Range

Abdul Wahid
Kashmir Foodstore

Ron Warbrick
The Frame Shop & Gallery
Vincent Waters
AllClean Scotland Ltd

Jim & Lorriane Waugh
Party Daze Ltd

Angus Whitton
Whitton Asset Management

Jim Williamson
Williamsons Design Florist Ltd

Dr Willie Wilson
Thistle Pharmacy

Len Woods
Ardtornish Consultants Ltd

Fraser revisited

I met last night with a lawer-type who is a friend of mine and speired aboot the Fraser case.  He drew himself up in his most lawyerly manner (he's good at that) and gave me a lesson in constitutional law, told me that Lords Hope and Roger were probably the two best minds in Scots law just now and then opined that perhaps the UK Supreme Court, if it was to fulfil the functions that it's supposed to fulfil rather than be another appeal court, should be an advisory court like the European courts.  Good point, I think.  I bow to his knowledge.  I still think it should be abolished but if the blight is to remin upon us, at least it should be defined properly!

Saturday, 28 May 2011

The business of business

Down to business or down on business?  We have a newly re-elected SNP Scottish Government, the first to win a majority of the seats in Parliament since devolution in 1999 including a majority of constituencies, a party which took 876,421 Additional Member votes compared to the combined Labour/Conservative/LibDem total of 872,998, a party that topped the Additional Member vote in every single region in the country, and that won a majority of the constituencies in seven regions out of eight (one away from a majority in South of Scotland but still more constituencies there than any other party).  It seems to be a party that has a bit of a mandate but has chosen, quite rightly in my opinion, to set out on a second term of government with a degree of humility.

The plans for that second term are being laid out in front of people now and build on the record of the first term, a record that includes help for small businesses - the enterprises which will be the drivers of Scotland's future prosperity - and improvements to the business environment in Scotland.  That government, according to the Scotsman newspaper, has been "warned off" imposing a carrier bag tax by CBI Scotland and the Scottish Retail Consortium even before the legislative programme has been announced.  Not that the SNP Government has ever advocated a carrier bag tax, it's being warned about implementing a policy it hasn't espoused - not because CBI Scotland and the Scottish Retail Consortium actually believe that the bag tax is likely to be brought forward by the Government but because they want to pick a fight early in order to lay the ground for a battle on the large retailer levy which, hopefully, John Swinney will bring back.

The thing is, though, CBI Scotland and the Scottish Retail Consortium don't speak for Scottish business.  I've written before about how CBI Scotland actually has very few members (62 Scottish companies compared to the 20,000+ members of the FSB in Scotland) and lacks the muscle of some serious Scottish businesses.  I've been told since then that Reform Scotland, a think-tank, has more members than CBI Scotland.  The Scottish Retail Consortium is even worse, though, it doesn't really exist.  It's a branding of the British Retail Consortium and is run out of London, it doesn't have Scottish members and doesn't list a Scottish membership.  Its Scottish corporate address is a PO box in Gullane (bottom of its home page) but its press releases have a contact phone number in London.  So the Scottish Retail Consortium is a front for the British Retail Consortium whose members are ... yes, that's right, the big supermarkets and the big High Street chains.  These are the two organisations who think that their unelected voices should carry more weight than the elected voices of Scotland's politicians, parliament and government - and the Scotsman carried their comments without making clear just how small their voices are.  The people of Scotland elected their MSPs, their Parliament, their Government, I look forward to that Government delivering.

Friday, 27 May 2011

The Fraser Case

I’m not a legal expert, I’ll leave that to m’learned friend who waxes lyrical upon matters pertaining to the law and its asses. That doesn’t stop me from pontificating on bits that take my fancy, though, and the Fraser case is one which has attracted the focus of my gimlet eye (my other eye’s OK).

I read the judgement with interest, a wee “hmm” here and a wee “oh?” there, and I come to the conclusion that the UK Supreme Court has erred in law. Oh yes, little old me thinks it’s a duff judgement. The UK Supreme Court has no role in Scottish criminal law but it’s the ultimate UK court of appeal in civil cases and the Fraser case was brought to it as a devolution issue under paragraph 13 of Schedule 6 to the Scotland Act 1998 as amended. The plaintiff pursued the case on the basis that his Convention Rights had been infringed – the rights arising from Article 6 specifically. Having read the judgement, though, I’m of the opinion that the Supreme Court decided this case not on the basis of Article 6 but as a court of criminal appeal.

The judgement (or judgment as our legal friends seem to like) was written by Lord Hope who is one of the two Scottish judges in the UK Supreme Court, the other being Lord Roger, both with impressive Scots law CVs. They didn’t hear the case alone, though, Lords Kerr and Dyson also sat on the bench and agreed with the conclusions of Lord Hope while Lord Brown also sat and disagreed with, but fell short of dissenting from, the disposal of the case. Lord Brown has an interesting career history in English law, as has Lord Dyson, and Lord Kerr served his time in Northern Ireland. They’ve all been appeal court judges and I believe that their personal histories influenced them in this case far more than the points of law which they should have been considering.

Article 6 of the ECHR, enshrined in the Human Rights Act 1998, reads thusly:
Article 6
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

The challenge was not on the basis of any of the specific rights mentioned in paragraphs 2 or 3 but on the general right in paragraph 1 – the right to a fair trial – a right which, I believe, most people will agree should be an intrinsic part of our legal system. The basis upon which the learned judges concluded that Mr Fraser’s right to a fair trial was not upheld was Lord Hope’s disagreement with the opinion expressed by the Lord Justice Clerk at the original appeal.

In spite of claiming in paragraph 30 that he was about to concentrate on whether the tests applied by the Appeal Court were the right ones, in the following paragraphs Lord Hope went off on a diddle around whether the tests were satisfied. Interestingly, he appeared to use previous judgements in the UK Supreme Court by himself and by one of his fellow bench-sitters in this case as the locus classici. I suppose that it is only to be expected when the circle is so small but it remains an interesting aside (for me) that this moot referred back to itself.

Where the Lord Justice Clerk had considered that the new evidence presented to him was not of sufficient importance to have influenced the jury at the trial had it been led (indeed, the LJC suggested that it may not have been led even if the defence had been aware of it), Lord Hope held that it was of sufficient import, saying “it is impossible to reconcile the approach which the Appeal Court took to the threshold question that section 106 raises with the test for cases of non-disclosure in McInnes, para 19” (Hope’s own previous opinion). Hope wasn’t finding fault with the process of the trial, he was finding fault with the outcome of the appeal.

Having previously ruled in McInnes that evidence withheld from the defence had to be evidence which should have been disclosed and also have enough weight to have affected the course of the trial for it to be a breach of the defendant’s Convention Rights, Hope relied on his ruling in that case to say in this case that the import of the evidence wasn’t important; “It was information that ought to have been given to the defence, and the failure to do this was a breach of the appellant’s article 6 right.” (paragraph 33).

This, and a finding that the course of the trial would have been different had the evidence been disclosed led Hope to conclude that his McInnes threshold test had been met. He then goes on to consider the consequences and, in spite of noting that the LJC had considered that the weight of the other evidence would have been sufficient to convict, he opined that the disclosure may have resulted in a different course for the trial and that “There is a real possibility that this would have been sufficient to raise a reasonable doubt about the Crown’s case”. Again, Hope’s issue isn’t with the conduct of the trial – whether it was fair or not – but with the outcome.

Hope never addresses the actual case before him in this judgement, he does not examine whether Article 6 has been breached; he sits, instead, as a judge in a criminal appeal in clear breach of the role of the UK Supreme Court.

Hope in paragraph 29 and Brown in paragraph 47 indicate that it is for the High Court of Justiciary to decide what tests to apply in appeals where there is no devolution issue – and both then go on to ignore the devolution issue and discuss the details of the LJC’s judgement. In both cases, I believe, they erred in law by ruling on the outcome of the case rather than whether it was a fair trial. Given that the other three judges concurred with Lord Hope’s judgement, they too must be seen to have erred in law.

Scotland’s laws are being changed by the UK Supreme Court, by judges without Scottish legal training, with little or no experience of Scots law and whose judgements appear to be self-fulfilling. The UK Supreme Court was supposed to take over the House of Lords legal functions and, in relation to Scotland, to rule on only civil cases. It has taken it upon itself to sit as a criminal court in relation to Scotland in breach of that role and has, I believe, acted ultra vires – its strength should not extend to Scots criminal law. I would hope that there was sufficient courage in Scotland’s Supreme Courts to refuse to follow the direction in this case to quash the conviction and to refuse it on the grounds that the UK Supreme Court acted outwith its jurisdiction. I would hope for that but without any real promise.

It’s time to remove all of Scots law from the grasping hands of the UK Supreme Court. It has failed.

Murmuring a judge you say?

Monday, 16 May 2011

Scotland's President

In days of yore the person who kept order in the Scots Parliament was known as the President, these days it's the more prosaic title Presiding Officer and much tickled have I been by the fuss and flutter from Labour over the democratic election of a new Presiding Officer of the Scottish Parliament. Intrigued am I by the shortness of the collective Labour memory that conveniently forgets that it was the party which refused to provide a Presiding Officer in 2007 – a refusal which resulted in Hercules being dragged up to the chair and forced into it. I think he’s done a fine job over the past four years but you could sense that he was laying down what was a heavy burden when he passed over to Tricia Marwick and the grace with which he did so speaks volumes about him.


In electing Tricia, though, Parliament has done more than just elect the first female PO, it also elected the first PO who didn’t attend a private school – David Steel went to the Prince of Wales School in Nairobi and to George Watson’s in Edinburgh; George Reid went to Dollar Academy; Alex Fergusson went to Eton. Tricia, the daughter of a mining family in Cowdenbeath, went to the local council-run school. She’s also the first Presiding Officer to have gone straight from school to work, eschewing tertiary education; and I think that she’s probably the first to have had working-class parents.

She knows she’s got a task on her hands which no-one has faced before – each of the Presiding Officers has faced different challenges. David Steel had to steer the institution through its set-up phase; George Reid had the building project and turning the institution into an internationally recognised body; Alex Fergusson had the first minority government and the arrival of George Foulkes; Tricia Marwick has the independence referendum, a host of newbie MSPs, the changing of the guard in the opposition parties and the tensions of a Parliament with a single-party majority for the first time. You might think she’s got an easier time than the others but I’m thinking it might not be as easy as it sounds.

It was good to learn that she had support from members of each of the main parties for her election and that people know that she’ll be fair and even-handed and fears no-one, I look forward to seeing how she fares. In the meantime, did you hear what one PO said to the other PO?

The Presiding Officer: In the second round of voting in the election of the Presiding Officer, the number of votes cast for each candidate was as follows: Hugh Henry 55, Tricia Marwick 73. Accordingly, as Tricia Marwick received more votes than the total number of votes that the other candidate received, and as more than 25 per cent of members voted, Tricia Marwick is elected as the Scottish Parliament’s Presiding Officer. [Applause.]

I thank all the candidates in the election of the Presiding Officer, as we come to yet another first in the series of firsts that have come to the fore in the past week. Scotland’s electorate seem to take great delight in delivering a Parliament with significantly different challenges at each and every election.

First, in 1999, the electorate delivered our first coalition Government. In 2003, they delivered what became known as the rainbow Parliament, with originally six and, ultimately, seven parties and groupings recognised on the Parliamentary Bureau. In 2007, they delivered our first minority Government and now, in 2011, they have delivered yet another first—a single party has gained an outright majority for the first time.

The Parliament itself seems to have taken the road of firsts to heart by electing a female member as the Presiding Officer for the first time. Furthermore, it has elected a member from the likely party of Government for the first time. In itself, that will present fresh challenges.

Having worked with Tricia Marwick on the Scottish Parliamentary Corporate Body over the past four years, I can testify to her ability to put the Parliament’s interests before the interests of any party in it. I know that I join all members in wishing her, her husband Frank, and her family our very best wishes as she takes on this vitally important role.

I would not dream of offering my successor any advice—except perhaps this: if, Tricia, you find after a few months that you are not quite as well known to the public as you would like to be, get yourself involved in a live television draw for a football cup semi-final and make a complete hash of it. I guarantee that you will be a household name after that. [Laughter.]

More seriously, the role of Presiding Officer carries with it a cloak of great privilege and even greater responsibility. It is one that I have worn to the best of my ability, but I am now delighted to pass it on to my elected successor. I have great pleasure in inviting the Presiding Officer to come forward and take the chair for the fourth session of our Scottish Parliament. [Applause.]

The Presiding Officer (Tricia Marwick): First, I thank all my parliamentary colleagues from all parties for their support today. I also thank my predecessor, Alex Fergusson, for his work in the past four years. His was a most difficult period, with the potential to have to use the casting vote every day. I hope to be spared that difficulty. He was a class act and a difficult one to follow; I will do my very, very best.

There are some special people who deserve my thanks, because it is only with their support and love that I can do this job: my husband Frankie, my children Louise and Steven, and my lovely grandchildren Róisín and Odhrán. I love you all.

As Presiding Officer, I will be fair to all members. I will always act in the interests of the Scottish Parliament. Now we have work to do. Thank you. [Applause.]