Short changing journalists

How easy it is to earn a nice wedge for doing not very much. This https://www.heraldscotland.com/…/19119385.scottish…/ will take you to Iain McWhirter tells us what will happen in the event Johnson says No. he works through the usual stuff – not “a generation”, not the right time etc, though he does have the decency to accept that this argument is thin.

Perhaps more importantly, he makes the observation that Johnson doesn’t want to go down in history as the 21st century version of Lord North (who was PM when America won its independence).

But neither will the present First Minister “call a “wildcat” or unauthorised referendum such as the one in Catalonia in 2017, but rather faced with a refusal of Holyroods’s request for a S30 Order will take “the UK government to the Supreme Court, claiming the right of self-determination.” McWhirter rejects this because in his view the Supreme Court made clear in the Miller case in 2017 that Westminster could not be overruled on constitutional matters. Eh, sorry Iain, but I dont think that is what they said. What they did say was to confirm – yet again! – that the House of Commons is sovereign. This does not explicitly rule out the possibility of Holyrood having their own referendum – for instance to test public opinion. Actually, the problem with a “wildcat” referendum is that Westminster is likely to say – even to a Yes majority – “oh that’s nice. Jolly good” and just ignore it. What do we do then?

But let’s say we end up at the Supreme Court and let us also assume that the Scottish Government case is successful. I would hazard a guess that the first thing Westminster will do is to change the law so that referenda on any topic you care to name, can only be carried out if Westminster says it’s ok. Westminster is sovereign after all. An earlier example is what they did with Holyrood’s Continuity Bill in 2018/19 – if Scotland is doing something you don’t like then change the law. https://ukconstitutionallaw.org/2018/12/20/chris-mccorkindale-and-aileen-mcharg-continuity-and-confusion-towards-clarity-the-supreme-court-and-the-scottish-continuity-bill/

So McWhirter works through the pretty obvious territory then pretty much condemns the whole independence project with little more than a wave of his hand. However, thinking it through a bit further demonstrates that we are between a rock and a hard place.

The hard place is Westminster which is not, or not easily, going to engage with the possibility of a legal referendum that they could quite easily lose (McWhirter also makes something of the possibility that we would make the same mistake as 2014, but of course forgets that this time we start off from somewhere around 50% support and not half that as we did last time).

The rock on which I rather fear we might perish is that with the present regime in Bute House, if there is no possibility of a “legal” (ie S30 referendum, or one endorsed by the Supreme Court) referendum then the will simply not go beyond this. Yet if Westminster keep saying No and we do nothing to respond, folk are going to get fed up and wander off, so we will lose that way instead.

Johnson saying No cannot be the end of the story. At worst it must be the “end of the beginning”.

In Defence of Nicola Sturgeon

Previously we have worked through a good deal of the case for the “prosecution” of Nicola Sturgeon. What follows is, broadly, the case for the defence.

One of the most trenchant critics of the First Minister has been Stewart Campbell at Wings over Scotland, to the extent that when I see he is dealing with this topic I tend to stop reading. Campbell was a major asset in the 2014 campaign. I know people who still have their “Wee Blue Book” from back then. He undermined the Unionist case at every turn, even if he did have his own weaknesses (a failure to follow the rule that you don’t say anything on social media you wouldn’t say to your maiden aunt at Christmas dinner) – but then, who has no weaknesses?

In one of his critical pieces – “Weak in the Presence of Beauty” https://wingsoverscotland.com/weak-in-the-presence-of-beauty/ – he cites Sturgeon’s self-confessed “imposter syndrome”, making her, in Campbell’s words, a “disastrously weak leader”, characterised by “an absolute terror of doing anything unpopular.” Not that “doing anything unpopular” is unusual for a politician. Tony Blair was said not to even get up unless the proposal had been approved in triangulated focus groups. Perhaps he might have remembered this when getting involved in W’s attack on Iraq.

But more importantly, it is surely abnormal for any politician to knowingly, consciously and deliberately do anything unpopular, unless there were reasons to believe that down the line it would make them even more popular. Becoming unpopular is hardly the most efficient route to getting re-elected. Yet Sturgeon over the last 12 months has done many things which could be suspected of making her unpopular (and in some cases, probably has). She has dealt with the Covid pandemic in ways that are much more cautious and more draconian than has been typical of England, or most other parts of the UK. She is regularly misrepresented in the press – Brillo’s latest “inaccuracy” is just one example. Yet despite all this, and to the annoyance of her opponents, her current approval ratings verge on the unbelievable. Not only is she more popular in Scotland than the Prime Minister, but more popular than Boris Johnson in England as well. In Scotland 57% (plus 57%) approve of how she is discharging her role, while -7% (minus 7% – subtracting do not approve from approve) “approve” of Johnson’s performance. Despite the fact that most money to support the Scottish economy comes from the UK Treasury (though funded by our taxes, and because the relevant powers have not been devolved), the Times found that 30% of Scots thought the Scottish Government had provided most funding to support business and the economy. Only 21% thought it was the UK. And so it goes on – positive rating after positive rating.

Campbell asserts however, that “When half of Scotland is constantly attacking you, the only thing that stops you being totally overwhelmed by your self-doubt is the backing of your loyal supporters.” The problem with this explanation is that it is impossible to disprove. Either she crumbles because she’s “disastrously weak”, but if she doesn’t it’s only the support of her followers that keeps her going. So, one way or the other disastrous weakness will always be there.

It was Abraham Lincoln who observed “You can fool some of the people all of the time, and all of the people some of the time, but you cannot fool all of the people all of the time”. Is this an indication of a disastrously weak leader, who has fooled a lot of the people, at least, for rather a long time? And IF we are dealing with a “disastrously weak leader” where does her support come from? Why does it not evaporate? Does it not suggest she might be doing ‘something’ right? You cannot “fool all of the people all of the time” etc.

It is here that Campbell’s one-dimensional view of “imposter syndrome” is exposed. This can be defined as “a psychological pattern in which an individual doubts their skills, talents or accomplishments and has a persistent internalized fear of being exposed as a “fraud”.” However, such doubts might not be well founded. For instance, does Campbell’s argument deter him from recognising, as many do (and not just her admirers) that she is first class communicator? Or that she is significantly less divisive than Alex Salmond?

As the pandemic has proceeded, support for independence has significantly increased – 21 polls (at the time of writing) with a majority for independence, though perhaps (to be “glass half empty”) it has plateaued. Even then, as John Robertson points out in his blog, the number of “don’t knows” is increasing, while the “No” vote is declining and “Yes” remaining stable – ie that the Union vote is beginning to question its loyalty to the UK. Is Sturgeon the person to get the independence proposition over the line?

Sticking with the positive orientation of this paper, it has often seemed to me that Sturgeon’s caginess about looking for another vote was based on a strategy that would allow her, when the time is right, to go to the Scottish electorate and claim that she had tried everything with regard to Brexit – made proposals to keep Scotland in the Single Market and the UK for instance – but nothing worked. Theresa May’s insistence that “we joined the EU as the entire UK, and we will leave as the entire UK” is an illustration even if it’s not what happened given the status of Northern Ireland.

Is it not a reasonable view that while Westminster is unlikely to approve another vote after the May election, it was even less likely during the shambles of the Brexit negotiations. Sturgeon’s policy might be said to be “don’t fire till you can see the whites of their eyes”. Or to paraphrase Pat Kane, “you win a referendum before the debate”. The more radical wing of the SNP may have found this unbearable, itching to get on with it. However, the problem with this, it seems to me, is that we really do have to get it right this time and win the vote, for there won’t be another any time soon if we lose next time.

Thus what would the consequences be of Sturgeon having to resign? Well, we would have lost an excellent communicator, someone who has a wide following and is not, as Alex Salmond sometimes was, divisive. The problem is whether she will follow through on her policy of seeking a S30 Order if there is a pro-independence majority elected to Holyrood in May. My own view is that she will, and that Johnson will duly say “No”. The foundations of this are already being laid by such as Alister Jack pointing to the difficulty to holding a referendum during a pandemic, as well as interspersing this with meditations on the meaning of “generation”.

The question then is what does she do next? If Westminster appears determined not to grant a S30 Order, does the First Minister sit tight and wait for them to change their mind? The problem is she could be waiting a long time as the SNP’s 11-point strategy concludes. This says that as well as seeking a S30 Order, the SNP will put forward a Bill at Holyrood allowing a referendum after the pandemic (ie 2022 most likely). This, it is claimed faces Westminster with three choices:

  1. agree that the Scottish Parliament already has the power to legislate for a referendum.
  2. agree the section 30 order – as happened ahead of the 2014 vote.
  3. take legal action to dispute the legal basis of the referendum.

Assuming that the Westminster Government maintains its negative stance, the likely outcome is number 3 (making the defenestration of Joanna Cherry even less wise, I would suggest). If this is won, then presumably a referendum could go ahead. But what if not?

Does Sturgeon have the courage to take the kinds of extra-Parliamentary action that might be necessary, for instance to change Westminster’s mind by making Scotland essentially ungovernable? Is she willing to support Craig Murray’s view that “One day, all supporters of Independence are going to be forced to get their heads round the fact that London is going for the Madrid solution, and we are not going to achieve Independence without using peaceful, non-violent routes which are nevertheless going to be deemed illegal by the Establishment.” Whether Nicola Sturgeon would embrace this view, even as a final option, is wonderfully unclear, but it is clear that, if she survives the present challenge to her leadership what happens after Westminster says “No” will be the next challenge, which will make her present problems with regard to Alex Salmond seem tiny in comparison.

Whether she lacks the qualities to address these conditions effectively is open to doubt, but what is not in doubt is that the personal qualities she has demonstrated during the course of the pandemic are much admired and would be a very considerable asset in future efforts to secure independence, making the current Alex Salmond situation even more tragic.

On a personal note, I remember, aged 13 listening to a radio commentary of Scotland playing Poland at Hampden in a qualifying match for the World Cup in England in 1966. Like most such games, it was important to win, and with five minutes to go, we were by 1-0. But in those last five minutes two goals were lost and success snatched from the jaws of victory. I worry that in the political sphere, history might be repeating itself – that with the job nearer done than at any time before, we screw up. On the other hand, it appears that the night before Bannockburn, Bruce and his Generals spent the night arguing about tactics. Maybe, this is just “the Scottish way”?

Perhaps the best possibility is that court reporter, James Doleman is right that “”As I’ve said before, I don’t think that, outside the Edinburgh ring road, anyone cares if Nicola Sturgeon heard about the Alec Salmond case on Tuesday or Wednesday, it just doesn’t matter to most people.” In this he is supported by the “What Scotland Thinks”, website which has found that trust in Nicola Sturgeon (up to 09/02) has hardly changed at all.

Nicola Sturgeon – the case for the prosecution

It seems probable that the First Minister will appear before the Holyrood Inquiry some time, maybe, into her government’s handling of the procedure with regard to Alex Salmond. At FMQs this week she called for us all to wait till we hear what she has to say then and not prejudge the issue. I am going to try to accommodate her in this reasonable request , but at the same time to point to some of the questions I hope she will be asked, whenever she appears, and to give some background why they seem important to me to be asked.

My first question concerns why or how, someone with an LLB from the University of Glasgow and experience as a solicitor allowed THAT procedure to be used in respect of Alex Salmond. Or indeed anyone at all! I could leave it at pointing out that the whole thing was laughed out of the Court of Session. Indeed, the Scottish Government conceded Salmond’s case. More than this though, the concession was only at the insistence of the government’s own QC who threated to withdraw if they didn’t withdraw. Why would a senior QC do this?

Well, first of all Salmond was never told about the inquiry until it was almost over, meaning he was not allowed to put his side of the story (stories) to the inquiry. Nor, Salmond claims, was he allowed access to his Ministerial diary (from the time he was First Minister) or other Ministerial papers. But even worse, the inquiry was led by a Civil Servant who had encouraged, assisted and supported at least two of the women who made the allegations against Salmond. These are all fundamental breaches of Natural Justice. The person being accused must be told of what it is alleged they have done in order that they can reply to the charges. They must have access to the evidence they require, and no one may be a judge in his own cause: “nemo debet esse judex in propria causa. …” no matter how small. These are all fundamental failings, which I would expect a first-year student to be aware of and appreciate, never mind a graduate who went on practice and in due course became First Minister of her country. Nor does it speak well of the legal advice she took – assuming she took it.

So my first question would be “how was this allowed to happen in such an incompetent manner?”

Secondly, a procedure against a former employee always appears odd. What can the employer do? If there is criminality, then all they can do is report the former employee to the Police – for instance if there has been theft. I believe no other government in the world has the kind of procedure that Scotland has. Given this, added to all of the above, what did the Head of the UK Civil Service make of Lesley Evans’ involvement in an utterly incompetent shambles like this? It is often said that Evans’ boss is Nicola Sturgeon, but this is only partly true. Evans is an employee of the UK Civil Service, and as such another hierarchical superior is the Cabinet Secretary and Head of the Home Civil Service, formerly Mark Sedwill and now Simon Case. Indeed, if Sturgeon was so unhappy with Evans, she could not just sack her. She would have to report Evans to Sedwill/ Case to discuss them removing her (though I suspect, if the relationship had broken down to this degree, they probably would. To some extent this is what happened with John Elvidge, Salmond’s first Permanent Secretary prior to the appointment of Peter Housden).

Moreover, the door in Number 10 Downing Street reads “First Lord of the Treasury and Minister for the Civil Service”. One might assume that the Civil Service would be anxious to do things properly – but then that was perhaps the Civil Service of “Yes Minister”. Is the UK Civil Service now the Civil Service of “The Thick of It”?

So, my second question would be, how did the UK Civil Service react to this? Did they issue any warnings? Any indications of “disquiet?” Yes, Civil Servants have a duty to follow the instructions of their political masters, but was their involvement appropriate in this case?

Thirdly, as a committed Feminist, one might expect that the First Minister would want to see process unwind against Mr Salmond. Particularly given Harvey Weinstein that she would want to see the accusations made against Salmond investigated. But surely, investigated properly? It is very difficult, without referring to hypothetical conspiracies to be sure of this, but two things at least seem clear. First, that in a criminal trial in front of a jury of 15 of his peers (9 of them being women), Alex Salmond was charged with 14 cases of varying severity of sexual assault. However, we also know that he was found Not Guilty of 13 of them and Not Proven in 1. This does not mean nothing happened – it means no more than if something did happen it did not cross the bar of criminality. It is accepted in Employment Law that it is not reasonable to expect an employer’s investigation to be as forensic as “beyond reasonable doubt”, but Salmond’s case was investigated by the Police to investigate and secure evidence over a number of months and at no little cost. One might have thought there was sufficient evidence to make conviction seems a reasonable expectation, yet, 14 charges later, all rejected by the High Court, the case is in tatters, suggesting a rather flaky investigation by the Police as well

Secondly we know that there is evidence that in at least one case the allegations could not be true for the person in question was not present. Likewise, SNP Chief Operating Officer, Sue Ruddick claimed that Salmond assaulted her during the Glenrothes by-election. To quote Anne Harvey, the Principal Assistant to the Chief Whip, SNP Westminster Group, Ms Ruddick

“suggested an act of physical aggression by Mr Salmond. I know that to be wrong since I was the only witness to this supposed event.

She is referring to an incident in the Glenrothes by-election in which we campaigned together. We were ‘door-knocking’ and leafletting in a block of flats during a media event. Alex walked past Sue in the stairwell of a close. He brushed past her on the stairwell as he was heading to leave the close. I saw and heard nothing which caused me any alarm or concern. I was only yards away.

This is the incident she is referring to, but I can categorically confirm that there was no physical aggression on the part of Mr Salmond. Any contact at all between him and her that day was absolutely inadvertent and in no way deliberate or aggressive.” (https://yoursforscotlandcom.wordpress.com/2021/02/08/following-a-statement-by-sue-riddick-to-the-media-the-plot-continues-and-flops-again/)

This might be said to be an example of what Ann Fortier draws our attention to, “those who control the present can rewrite the past.” Certainly though, it does seem to be the case that the investigation into Salmond’s alleged wrong-doing, were less than adequate.

Even more interestingly, and perhaps tellingly, Ms Harvey refers specifically to a request by SNP HQ which she describes as “improper”, and “seeking to damage Mr Salmond”, which has led her to believe “for some time that there was what I described in writing on 28August 2018 as a ‘witch-hunt’ against [Alex Salmond]”.

So, my third question would be – following on from the first – whether the First Minister is satisfied with the work done to validate the evidence used against Alex Salmond?

Fourthly, and lastly, given the unfolding disaster of these events, why has she allowed it to go on for so long? When your own QC – the very person who should be going into Court to argue your case – threatens to withdraw rather than do this, is it not a sign that not only is something wrong, but very, very wrong? When the evidence is collapsing around your ears how much sense does it make to plough on? Is it even politic – let’s ignore morality for now – to use the force of law to persecute individuals such as Mark Hirst and Craig Murray for using social media to make statements which appear to contradict your own threadbare case? Perhaps Ms Sturgeon should remember that her own core policy – independence for Scotland – is not what the Westminster government wants to hear, but that Oriel Junqueras languishes in a Spanish jail for making this case for Catalonia. Acting against the government is a well-established political activity which, as long as it avoids criminality, is regarded as legitimate. Is it criminal to say in a video blog that the women making the allegations “would reap the whirlwind” as Mark Hirst did (and was not only found Not Guilty, but that he had no case to answer) or to issue via social media daily reports on Salmond’s trial as Craig Murray did? Apparently so, but then as Oriel Junqueras forgot – it’s the government that write the law. Is Scotland not better than to employ the legal system to silence its critics?

Thus my final question would be whether she considers the use of prosecution against her critics, and the use of law (and threats of prosecution) to manage the information made public, to have been proportionate?

However, as David Hooks (@politicsscot) tweeted “If the whole Nicola Sturgeon/Alex Salmond thing is a conspiracy to get him and a cover up, and I’m not saying it is, but if it is, it’s the most cack handed, badly planned, poorly executed, incompetent and amateur conspiracy and cover up conceived. What a bloody shambles.” (https://twitter.com/PoliticsScot/status/1359905488582963200)