Name and Shame

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The Crown Office, Chamber Street, Edinburgh; hand-in-glove with the government

The ALBA MP Neale Hanvey explains his thinking on whether or not it is fair that the complainants against Alex Salmond – who lost their case against him comprehensively and absolutely – should be given legal anonymity that allows them to exploit it by a campaign of accusation and harrassment from behind closed doors. The campaign has never been denounced by First Minister Nicola Sturgeon, and has often issued from the Rape Crisis Centre funded by the SNP. With a new book published recycling their discredited accusations, what can be done to shame the guilty?

This site takes regular soundings from the general public, some articles motivated by the prevailing public mood, not scientific polls, word-of-mouth conversations from those aware of events and consequences. There is anger that Salmond is sorely tried, fitted up for double jeopardy, belittled by former colleagues. And sadly, there are women who believe what was sold to them, that a predator got off ‘on a technicality’. The sex accusation always leaves a mark, hence it has been a tool of assassination down the ages.

This scurrilous ‘predator’ slur on a man who chased Indian currys not women is shared by the First Minister Nicola Sturgeon and her close advisers who conspired knowing his trial might see him in jail. The rest, the press and media of the British state, prefer he is buried and without a marker to his grave.

Neale Hanvey, a man of innocence and scruples, and other MPs, have been asked to use Parliamentary Privilege to out the complainants dominant in the Alex Salmond trial and in subsequent harassment events. The reason to do this is to shame them. Here Neale Hanvey explains why hr thinks this is a complicated matter.

NAME AND SHAME

by Neale Hanvey

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. 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?” 

Integrity rules, okay

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.

The jailing of Craig Murray

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. 

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 a 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. This brings me to the substance of this piece and the question at its heart. 

Speaking as an MP

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 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.

What does naming achieve 

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.

Censorship prevails

It is also a 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 to the Seven Principles of Public Life that all MPs are required to observe. 

The Seven Principles

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. 

No quick fix

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. 

NOTE: This article is reprinted with the kind permission of ‘Yours for Scotland’ blog site.

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6 Responses to Name and Shame

  1. duncanio says:

    I posted this on Iain Lawson’s website – Yours For Scotland – earlier today and feel it is worth repeating here (although others may already cover these points in part):

    There must be checks and balances in a democracy so the separation powers is fundamental. It is why we have executive, legislature and judiciary in the first place. It is also why having the Lord Advocate fulfilling a position in the government cabinet to advise on legal matters whilst at the same time prosecuting cases involving that government is a nonsense and, more importantly, so dangerous as it is obviously open to manipulation.

    In addition we can’t willy-nilly reveal the name of complainants either as this, as Neale says, would compromise the rights of others. In the Salmond case this is frustrating as clearly some of the complainants have been abusing their privilege of anonymity to continue the smearing of the man with articles via newspapers or via press releases from non-governmental agencies. It is only fair that if their anonymity is to be preserved the complainants, and their sympathisers or advocates, should be banned from acting in this fashion.

    Lastly, the anonymity provided to complainants should also be extended to the accused, at least until that person is convicted. If the person is acquitted then that anonymity should remain for all time (just like for the complainants). A more obvious justification for providing this anonymity to those accused then acquitted there could not be than that of Alex Salmond who continues to be defamed nearly 18 months after the criminal trial ended (witness the Times serialisation of extracts of the book by two well know press political commentators at the weekend).

    We need common sense and fairness put back into our legal system toute suite.

  2. Grouse Beater says:

    And we British newspapers go home not brief against Scotland as a matter of livelihood.

  3. alfbaird says:

    “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.”

    Neale Hanvey in this aspect appears to disregard the colonial reality of the situation, where the native cannot expect justice in a colonial system (Fanon; Memmi etc).

    So long as Scotland’s ‘principal institutions’ remain colonial in terms of leadership, nature, culture, values and more, oppression of the people will continue. Any ‘separation of powers’ whilst all ‘principal institutions’ remain under colonialism does not alter this.

    Which brings us back to the question as to whether or not Scotland’s national representatives actually know what national independence is?

  4. Michael W says:

    The whole article is undone by the continued use of the word Complainants. That is an English legal term. In Scotland where the trial was raised the accusers are called the Complainers. It gives me no pleasure in stating that but we need to be accurate. Also, and many are guilty of this, a judgement in the legal sense is Judgment- there is no “e”.

    Moving on, one of the things i did think about about was the whole YES movement in unison naming and shaming the Complainers and seeing how the prosecution/court/and penal system coped with a million plus heading for the pokey. The difficulty with this is that i think there is serious merit in not naming accusers however i think the same right should apply to the accused unless convicted and in the event of non conviction where a legal test is met that shows the complaint(s) has(have) been vexatious then you should be allowed to name the complainers and contempt orders fall.

  5. Howard Cairns says:

    If the complainers continue to issue press articles after losing a case against someone then that someone should be able to be sue for damages against the papers continuing to print these accusations. They should also be forced to show the names of their sources in this situation.

  6. diabloandco says:

    I’m sure if I stood up in court and lied my way through evidence , showed that I had been coached in my responses , I would end up being charged and jailed. I am at a loss as to why this has not happened to those in the case of Alex Salmond.
    I have been at a loss with charges being brought for idiotic ‘ he pinged my hair’ complaints – must be just me as it certainly isn’t the Procurator Fiscal Office , which just appears lost , vindictive and malicious.
    I believe that anonymity should be given to both sides up and until the conclusion of a trial – the guilty named thereafter , whether that be the accused or the accuser(s).

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