Wednesday 6 July
For some time, I have argued that the record and current performance of the Scottish legal profession deserves closer critical scrutiny than it generally receives. Too often, it seems to me, lawyers act on the basis of self-interest rather than on any developed sense of public responsibility. Behind a rhetorical mist of reassurance, which makes vague reference to high standards and a proud tradition, lies an unattractive 'ethic’ of professional protectionism.
I was confirmed in this view by the response of the Faculty of Advocates to a consultation document by the Scottish Law Commission setting out proposed reforms to defamation laws. The changes would make it harder for rich and powerful people to silence critics and protect their reputations: a test of 'serious harm’ would have to be met. While no one would wish to deny individuals the right to challenge false allegations or damaging inaccuracies, a healthy democracy should protect freedom of speech and ensure that power and wealth should not enable the privileged to remain immune from criticism. It would be interesting to know, for example, how many interdicts are taken out each year in Scotland with the aim of preventing press reports that well-known figures might find embarrassing.
What grounds did the Faculty of Advocates advance for opposing the reforms? Part of their objection is that the changes proposed would bring Scots law more in line with that of England and Wales, where moves have been made to discourage trivial actions. Scottish lawyers have always been very jealous of their distinctive system, but viewing the issue in terms of nationalism rather than any conception of justice betrays a narrow perspective.
Another line of argument is that the proposed reforms would require the alleged defamatory statements to be communicated to a third party, not only to its subject. This, according to the Faculty of Advocates, 'would represent a significant change in the long-established principle that the essence of defamation is injury to self-esteem which is actionable in its own right’. In other words, anyone with a strong sense of their own importance, however inflated, should be free to pursue an action if they feel they have been offended.
But the most revealing aspect of the negative reaction of the Faculty of Advocates relates to its call for more, not fewer, defamation actions, and its claim that this might help to stimulate economic growth. This provoked a response from Scottish Pen, a writers’ campaigning group defending freedom of expression, suggesting that the faculty seemed to be driven more by 'vested interests’ than by legal principles. Scottish Pen argued that failure to amend the law along the lines proposed would make it harder for 'scientists speaking out in the public interest, journalists investigating corruption and consumer groups exposing risks to public safety’. It is to be hoped that any legislative changes will give more weight to these concerns than to the desire of advocates to attract more business.
Thursday 7 July
The Oxford English Dictionary issues quarterly reports of changing trends in the use of language. In the latest issue, abbreviations used in text messages and on social media feature prominently. I fear the opportunity to use ROFL (rolling on the floor laughing) may have diminished in view of the current UK political scene. And any politician who posts a message which includes TBH (to be honest) is likely to attract some abuse.
Less controversial are FWIW (for what it’s worth) and ICYMI (in case you missed it).
I was surprised to learn that 'budgie smugglers’ had only now merited inclusion as it is an expression widely used in my social circle. The term refers to the type of close-fitting swimming trunks worn by some men. As a keen swimmer, I naturally try to remain in touch with the latest aquatic fashions, though to avoid over-exciting SR readers I will draw a veil over my own trunks. Suffice it to say that they rarely attract comment – though my goggles are widely admired.
'Listicles’ is a new term that also seems to carry a hint of naughtiness. However, it promises more than it delivers. It refers to online newspaper or magazine articles presented in the form of a list. Technology is reducing the willingness of many people to cope with passages of extended prose, so lists and bullet points have become more popular. In my gloomier moments, I sometimes think it’s all part of a sinister strategy by global media companies to stop people thinking. Fortunately, Scottish Review is committed to bucking that particular trend. So next time you find yourself provoked by one of our contributors, remind yourself that your mental faculties are being stimulated, not suppressed.
Friday 8 July
The report on the death in 2011 of eight-year-old Dylan Seabridge has raised questions about the right of parents to educate their children at home. Dylan lived with his parents in an isolated farmhouse in Pembrokeshire, Wales, and had no direct contact with health or education agencies after the age of 13 months. An inquest concluded that the boy had died from scurvy, caused by a deficiency of vitamin C, though his parents disputed the findings. The independent report stated that Dylan had become 'invisible’ and that his basic human rights were not met: 'He was not routinely having access to play, leisure, sporting and cultural activities along with friendships and age appropriate socialisation'.
Education officials did visit the Seabridges, but the parents refused access to the home. Although they were charged with neglect following Dylan’s death, the case was subsequently dropped. The report concluded that there should be a Welsh national register of all home-educated children to ensure that cases such as Dylan’s could not arise again.
The story is relevant to the debate in Scotland about the controversial Named Person Scheme, now delayed until a ruling from the UK Supreme Court has been made. The Scottish proposals extend far beyond home education but both raise difficult questions about freedom within a democracy, the respective rights of parents and children, and the grounds on which official intervention may be justified. It is understandable that public disquiet following the tragic deaths of children caused by inadequate or cruel parents creates political pressure for legislative reform, but it is difficult to frame provisions that will cover all circumstances.
In the case of home education, for example, the motives of parents for withdrawing their children from school are immensely varied. Some have clearly thought-out views on the upbringing of children, particularly those of primary age, and object to what they see as the regimentation of conventional schooling. They regard learning as encompassing much more than formal lessons in classrooms. Other parents may have withdrawn their children from schools because of bullying or what they perceive as a failure by the local authority to respond to reasonable requests. This may have created a distrust of educational officialdom. It need not, however, have led to social isolation. There are networks of home educators who support each other, share resources and exchange ideas. In Scotland, these services are available through a national charity called Schoolhouse.
What does raise legitimate concerns are the small number of cases where the parental motivation may be more suspect and may impede the healthy development of children. These include parents with extreme religious convictions who see the world as evil and seek to protect their offspring from its contamination. What they offer is not education in any meaningful sense, but a form of indoctrination. In such circumstances, the argument for external intervention is strong: a child’s right to personal fulfilment, through being exposed to a range of opportunities and experiences, should carry more weight than the desire of some adults to impose their restrictive world-view. But whether this justifies state supervision of all children is much less certain.
Saturday 9 July
Amidst all the post-Chilcot analyses, I was particularly interested in a comment by the journalist, broadcaster and military historian Sir Max Hastings. He said that to focus all the attention on Tony Blair’s role in the Iraq war was mistaken. Insufficient notice had been paid to the 'groupthink’ of the intelligence services and senior military figures: most of the chiefs of staff, according to Hastings, were 'gagging’ for military action, despite the reduced state of British forces and uncertainty about the aftermath. There were few contrary voices arguing for caution, or presenting an alternative strategy.
Groupthink at senior levels of many organisations has become a national disease. It partly explains the series of banking and financial disasters that have occurred in recent years: nobody in the boardrooms had the guts to challenge chief executives. It can be seen in professions such as medicine and the law, where conformity is the order of the day. And in universities, which are supposed to be arenas for robust argument and debate, corporate groupthink by 'academic bureaucrats’ has become commonplace.
Although the consequences of this culture are less disastrous in these examples than in the case of war, the social and psychological roots of the behavioural pattern are very similar: an organisational ethos that does not encourage honest assessment – far less dissent – and individuals in positions of power who are driven by personal and political calculation rather than by principled thinking.