A Garbage Can Explanation for Salmond v Sturgeon

Conspiracy, proper conspiracy, emergent conspiracy and garbage cans.

A few days ago Peter Bell published an interesting article – “Alex Salmond: A fly bugger” (https://peterabell.scot/2021/02/23/alex-salmond-a-fly-bugger) in which he asserts that when Alex Salmond’s refers, as he does in his evidence to the Holyrood Committee to “a deliberate, prolonged, malicious and concerted effort amongst a range of individuals” he is not quite describing a ‘proper’ conspiracy.”

But what is a “proper conspiracy”? In law a conspiracy is when “A person who agrees with another or others to act in a way which would involve the commission of an offence by any party to the agreement is guilty of conspiracy to commit the offence” (https://www.scotlawcom.gov.uk/files/5712/8024/7006/cp_criminal_code.pdf). One problem in using “conspiracy” for the current imbroglio of Salmond and Sturgeon is that to the best of my knowledge, no offence in law has been committed, by either side. Powers have perhaps been abused, the Ministerial Code broken, but I don’t see anyone being in the poky as a result.

Thus, is conspiracy an appropriate concept to help us to understand what has been going on, or is it just clickbait to attract online readers, or increase dead tree sales – ie just lazy journalism. I am pretty certain that Levy and McCrae as well as the others in Team Salmond are being well rewarded for their efforts and could easily employ “conspiracy”, emergent or otherwise, if it suited their purpose.

Perhaps, another, more insightful explanation can be derived from the “Garbage Can Model of Decision-Making” (Michael D. Cohen, James G. March, and Johan P. Olsen). Any rational theory of decision-making puts the various stages of decision-making in a logical sequential order – for instance that problem identification will always precede the development of a solution. This is not necessary for the garbage can model.

This model operates in what the authors describe as an “organized anarchy” of problematic preferences, unclear technology, and fluid participation. Public institutions, they say, often satisfy what they describe as “organized anarchy”. So do Universities!

The core idea is that that are four variables or “streams” circulating in a fixed decision space, that decision space being the garbage can; those four variables are: problems, decision participants, choice opportunities, and solutions.

Solutions can be in search of problems to attach themselves to. For instance, holograms existed for many years without any kind of widespread use, till financial institutions realised they could be used to foil counterfeiters. The expertise of participants can determine which problems to address – accountants for instance will tend to drift toward problems that are financial in nature; the choice opportunities that exist can determine which solutions are selected.

Let’s apply that to the present situation. For instance, fired up by the Weinstein case and the #metoo movement, the First Minister decides that there must be a procedure to deal with misdemeanours of even previous and no longer serving Ministers, so that sexual predators can be found out even years later just as Weinstein was. Let’s presume that the First Minister was telling the truth in 2017 that she had heard at an earlier stage, reports about Alex Salmond’s behaviour toward some women What to do about it? Could it be reviewed in the same way that the behaviour of Harvey Weinstein and Rolf Harris had been.

At the same time, two Civil Servants come forward with complaints about the previous conduct of the former First Minister, while in office. Thus, we have the problem, but we also have the solution in place – a process is to be developed to address this very problem.

The decision participants are in place – Judith McKinnon and Lesley Evans, and the choice opportunity when the First Minister signs of the procedure.

Bit too pat for you? How likely is it that two Civil Servants would come forward at/about the same time a procedure is being implemented to address this very situation? Undeniably convenient?

James Kelly too has published a similar sort of argument to Bell – maybe there wasn’t a conspiracy (he doesn’t bother to try to define “conspiracy”) but “having overreached themselves with a tainted process for what they might well have thought was the best of motives, they may have then panicked about the political damage that would be done to them as a result of a legal defeat.”, so they plough on and the case is heard at the High Court resulting in … Salmond being cleared on all charges. As David Hooks tweeted, “what a bloody shambles”!

The alternative is however that otherwise we need to be able to show conspiracy, emergent or otherwise. According to Peter Bell “All that is required for the appearance of conspiracy to emerge is that there should be a sufficient number of people; with a sufficient amount of influence; and a sufficient commonality of interest.” That though is not quite true, for we need to show those with the influence and commonality of interest shared a common mens rea “the intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused.”. We also need to show that they planned to, and did indeed, act in concert.

Kelly suggests that this was because of a belief that Salmond intended to return to Parliamentary politics, when in fact it was widely known at the time that he intended to become chairman of Johnson Press, owners ot the Scotsman, and was putting it about he was finished with front line politics. Maybe, particularly bearing in mind that Salmond and Sturgeon must have known each other a good length of time and were old comrades (or so it seemed), she might have asked?

But in any event, what do we know the state of mind of those involved? What, for instance, was the motive of the First Minister? Was it to ‘do in’ her former mentor and if so why? Or was it to ensure that the complainants were not “let down”? We might have opinions, but DO we know? It’s all very well to assert that anything that waddles and quacks must be a duck, but we would do well to consider the origin of the saying, which concerned a mechanical duck that did waddle and did quack but was not a real duck (https://www.mirror.co.uk/usvsth3m/you-know-phrase-if-looks-5235884).

There is, therefore, a good deal still to go before Bell’s claim that Salmond has left two verdicts for the Committee of Inquiry – that there was a conspiracy, or there was “a deliberate, prolonged, malicious and concerted effort amongst a range of individuals” would stand up.

Moreover, let’s not forget just what is being claimed by at least some of Salmond’s supporters, that not only is the First Minister corrupt, but so must be her Deputy, John Swinnie and her Lord Advocate (a former Faculty Dean) as well as a good part of the Crown Office. Then there is the Chief Executive of the SNP (the First Minister’s husband) its Chief Operating Officer, as well as sundry Party Officials. Oh, yes and Police Scotland too.

I accept that the Garbage Can explanation can seem a bit too convenient, but is the alternative not just a bit extreme? Bell himself reflects a conclusion not inconsistent with the Garbage Can Model of what happened – “As far as she [the First Minister] and her people are concerned everybody was just doing their job. Perhaps ‘mistakes were made’. Maybe things were done that shouldn’t have been done or done in a way that could have been better. But no actual conspiracy.”

The First Minister wants us to focus on the facts. Well, we know that sexual harassment was and remains a serious problem for the First Minister – there was a problem. We know a process was devised to investigate such claims. Its difficulty was that it offended the law in so many ways that the Scottish Government had to abandon it in the Court of Session just prior to Alex Salmond’s Judicial Review.

We know there were participants – the First Minister, her Principal Secretary, as well as others in the Civil Service and in the SNP. We know there were a variety of decision opportunities within this organized anarchy.

In short, we need to ask ourselves whether there was a conspiracy, or even “”a deliberate, prolonged, malicious and concerted effort amongst a range of individuals”. Either way, the problem is that motive is crucial since Salmond himself is asserting that it was “deliberate” and “concerted” – not something that just happened. What is the evidence for this? How much evidence that it was malicious rather than incompetent or misconceived? How much evidence that it was directed at addressing the wrongs the complainants had claimed?

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