NAME AND SHAME

A guest article from Neale Hanvey MP. Some time ago there were calls for an MP to use Parliamentary Privilege to out the complainants in the Alex Salmond trial. At the time Neale contacted me and promised me an article to explain why this was not as simple as many thought it would be. A man of his word this is his article.

Name and shame

The ‘Salmond affair’ and the ongoing fallout following Alex’s acquittal [and it can’t be said too often – on all charges and by a majority female jury] has raised many serious questions about the operation and priorities of government in Scotland. 

Not least amongst those questions are concerns about the doctrine of the separation of the powers. That is government executive, judiciary, and legislature and whether the wheels of justice in Scotland are currently fit for purpose or indeed safe.

My parliamentary colleague and former Justice Secretary Kenny MacAskill MP has led real progress in parliament securing in principle support from the UK Government ministers including the Prime Minister himself to any request from the Scottish Government should it seek to amend the Scotland Act and facilitate a remedy for this most fundamental tenet of democracy and justice. 

That neither the SNP spokesperson for justice nor their spokesperson to the Attorney General’s office attended his recent adjournment debate on this most serious of matters, demonstrates a worrying level of disconnect. It may be plausible that the relevance of the subject matter to their respective roles and their party could be down to unfamiliarity with the new territory. However, the significance of the debate was not missed by their single predecessor, Joanna Cherry QC MP, making her usual learned contribution to the debate.

So that brings me back to the Scottish Government and their to-date-silence on taking any remedial action to restore much needed confidence in Scottish Justice.

In short, “First Minister, what say you about democracy and justice?” 

Amongst other things the doctrine exists to protect the principal institutions of governance and of course to ensure there is no overreach or undue influence. It’s not solely to prevent despot’s diktat and tyranny, it provides a means for government to be able to demonstrate transparency, integrity, and legitimacy. 

In the presence of the doctrine any hint or inference of bias, influence or gerrymandering can be quickly dispelled. In its absence such concerns can fester undermining confidence in all organs of a democracy. Such a loss of trust can be utterly catastrophic to the freedoms we often take for granted. 

The point I am making here is that the doctrine of the separation of powers is the foundation of justice in a functioning democracy. And the simple fact is that given all of the above I can only conclude that the current Scottish Government are laissez-faire, at best, about this essential democratic hallmark. 

That should concern every single one of us.

Such concerns about justice and overreach were drawn into sharp relief recently when Craig Murray was jailed for the contempt of Jigsaw Identification. For me the injustice in Craig’s case centres on the impossibility for the contempt to be accurately specified because doing so would commit the very same contempt Craig has been imprisoned for. 

It is a cruel cyclical argument that has left an elderly gentleman in prison who does not believe he has had a detailed explanation and therefore a necessary understanding of why he is being so harshly punished. 

Like any jigsaw, many pieces are required for identification, yet despite opinion polls identifying many others as the source of complainant identification, no one else has yet been charged, never mind convicted.

This brings me to the substance of this piece and the question at its heart. As an MP should I or indeed any other MP sympathetic to these concerns use the provision of parliamentary privilege to name the complainants and circumvent the anonymity conferred to them in the Alex Salmond trial by Lady Dorrian following Alex Salmond’s trial.

Before I give you my current view on this, I just want to briefly set out what parliamentary privilege is and what it’s not. 

Like much of what passes as UK constitutional law, what parliamentary privilege actually is has never been fully set out in statute, and how it applies is subject to the courts. What does exist in statutory form is Article IX of the Bill of Rights 1689, which states that “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place outside Parliament.” However, what constitutes a “proceeding” is not something to be defined in the mind of each MP. 

The reality is that the boundaries of “proceedings” are a decision for the courts and thus far the interpretation of that has been narrow. It’s also important to point out that MPs do not enjoy any form of immunity from criminal law should they stray, however inadvertently, into such territory. 

I hope this makes clear that parliamentary privilege is not something any MP can invoke at will and must be used with caution and advisably after obtaining expert legal counsel 

The next matter I want to be considered is, what would naming complainants actually achieve? The obvious answer to this is that it may provide a sense of satisfaction that those who, as alleged by many, gave false testimony against Alex Salmond during his trial are ‘named and shamed’.

That could be true, but I would follow up such a question with another. Is that what parliamentary privilege is really for? I don’t think it is, but I also don’t think that it would achieve that outcome. 

Even if I stood up during an appropriate proceeding to name complainants, I would firstly need to have robust evidence that they were indeed complainants. Not based on Jigsaw ID, not based on rumour or hearsay, real verifiable evidence. Evidence I do not currently possess. Furthermore, I am not in possession of compelling evidence that anyone has been deliberately lying in their testimony – and anyway, that is a judgement for the courts.

It is also an almost certainty that any such utterances would be censored from broadcast and would certainly not make it into print or online media. What would be printed is a story about a ‘reckless MP who misused an important privilege as a vicious vendetta to attack complainants’. That would be the story, and for the reasons I have given above it would also be true. 

What makes this truth undeniable is the impact on complainants in other actions who have been granted anonymity. Breaching the anonymity of the Salmond complainants would not be an isolated act. It would reverberate intrusively into the lives and cases of vulnerable people across Scotland whose need for anonymity is unknown and unknowable to me but is something I must consider and honour. 

And this leads me neatly to the Seven Principles of Public Life that all MPs are required to observe. 

I won’t detail an argument for or against each principle here, but whilst I can mount a defence under each clause in favour of naming complainants, once the additional dimension of other cases and complainants is introduced all my arguments fall because such an endeavour would use all those who have or may need anonymity as a mere means for my own narrow interests and ends. And any failure to consider the consequences of my actions on them is not morally defensible.

I am extremely uncomfortable with any freelance journalists being imprisoned anywhere in the world, but calls for me or other MPs to [mis]use parliamentary privilege to name the Salmond complainants must be resisted; the principle of anonymity for witnesses in cases of alleged sexual crimes is and must remain inviolable. 

I also understand and share the frustration and anger of those who see glaring injustice in the pursuit of Alex Salmond, but again attempting to circumvent the law could impede progress towards the truth and do further harm to justice more generally in Scotland.

Naming the alleged complainers won’t solve anything much but could further damage our freedoms and protections and as Craig Murray has sadly discovered these are not as inviolable as many of us had assumed. 

If I really believed that naming complainants would be lawful and helpful I would do so. But I can’t complain about the foundations of democracy while simultaneously taking the law into my own hands, especially when the moral case is so obviously flaky. 

There are no easy solutions or quick fixes, but the starting point is precisely where Kenny is working from at present. To deliver the doctrine of separation of powers. Only then can we again have confidence that truth and justice exist and are protected by the proper balance on the principal institutions of democracy.

So, while the Scottish Government continue in their failure to address their own fundamental shortcomings the story is by no means over yet and the truth has a way of surfacing when you least expect it. 

“Courage calls to courage everywhere.” Resist and hope. 

MY COMMENTS

I very much appreciate Neale taking the time to spell out his views. Any fair reading of his article must agree it would not be as simple and uncomplicated as many would think. I agree it would most certainly face a media blackout in Britain as the Unionist UK MEDIA are intent in harming Alex Salmond and would do nothing to bolster his position. They also seem very supportive of the First Minister as well at the moment. Make of that what you will. Another reason of course may well be a lack of the evil vindictiveness needed and an unwillingness to live in the gutter currently inhabited by the other side.

I am, as always

Yours for Scotland.

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