Our constitution, July 2012: Public ethics

“Code of Conduct / Public Ethics”

There are, according to the Committee on Standards in Public Life, seven principles of public life – selflessness, integrity, objectivity, accountability, openness, honesty, and leadership.

I have to say – having taken part in many protests in Edinburgh over the years – that I have never felt afraid of Lothian and Borders Police. I warily arranged a phone contact before going to the SPUC OFF protest, because I did not know for sure that SPUC would stay non-violent and away from us and I wasn’t confident that the police would necessarily pick out the prolife aggressors over us feminist hippy weirdos with our hand-painted signs: but I was sure that so long as no one started any aggro, Lothian and Borders Police would simply allow both sides to have our peaceful protest. And I was very glad they were there at the BNP protest at Meadowbank.

But I have felt afraid on several protests in London – because I was part of a large crowd engaged in peaceful public protest, and the Metropolitan Police seemed by that to assume I was the enemy. They did not seem to regard any part of the crowd of protesters as the people whom it was their obligation to protect. We were, at best, there by their tolerance: and I only felt at risk in any crowd when I saw the Met Police in their riot gear.

I heard by unsubstantiated rumour that when the Metropolitan Police offered to send a detachment to Scotland to “help” police the G8 protest in 2005, the Scottish police forces gave the Met a joint dubious look, muttered “aye, that’ll be right”, and politely declined the offer, on the grounds that they wanted to keep the peace, not stir up trouble.

The UK Committee on Standards in Public Life was set up in October 1994 and issued its first report in 1995, under the chairmanship of Lord Nolan. It was established in order to investigate concerns about the conduct of members of parliament, after allegations that MPs had taken cash for putting down parliamentary questions. The Committee Report set out seven principles of public life: selflessness, integrity, objectivity, accountability, openness, honesty, and leadership. The ‘Nolan reforms’ established a new post of Parliamentary Commissioner for Standards (see ombudsman) whose job was to maintain the Register of Members’ Interests and investigate the conduct of MPs; to set up a House of Commons Committee on Standards and Privileges; and to set down a Code of Conduct for MPs. In 1998 the Committee issued a report on the funding of political parties, which rejected calls for state funding. — Alistair McMillan, Oxford Dictionary of Politics

There is a Ministerial Code, which is – we discovered with Jeremy Huntharder to break than the Enigma Code. Apparently the unwritten “constitution” of the UK requires ministers to be accountable to the Prime Minister, not to anyone like the “independent” adviser on the ministerial code:

The current holder of this well-paid and undemanding sinecure, Sir Alex Allan, tried to convince the select committee that he would be proactive and would not be sidelined.

Giving evidence, he said he would quit if he were marginalised, and promised not to be anyone’s “poodle”. He even came up with proposals for how he could conduct inquiries more quickly than his predecessor, Sir Philip Mawer. But he was clear that the prime minister had no plans to change the fundamental tripwire: that only the prime minister could ask him to conduct an inquiry.

Arguably, constitutional propriety requires ministers to be accountable to the prime minister, and not to a Whitehall bureaucrat. But it is notable that neither the cabinet secretary nor the prime minister have been keen to pass any issue to the independent adviser. Indeed, David Cameron has never referred a single case, making one wonder how Allan spends his days.

There is a code of conduct for MPs. There is a code of conduct for civil servants. There are discussions to be had about the proposed civil service reform and how that will affect the code of conduct (about which a dragon fairy has some useful comments).

The code of conduct for MPs did not appear to cause any issues for Alistair Darling, who shamelessly exploited the MP expenses system to get the mortage and council tax of his family home in Edinburgh paid for by designating it his second home (until he fancied using the allowance to buy himself a flat in London): nor for any of the other MPs who used Westminster’s flexible expenses system as a golden goose.

Nor did this code of conduct cause a problem for Eric Joyce (right up until the time he got drunk and attacked MPs of an opposing party) even though he had lost his licence for a year after he narrowly escaped a conviction for drunk driving in 2008, but as his defence solicitor told a sympathetic court:

“He is embarrassed. He has spent a night in the cells. The inevitable loss of his licence will be of great inconvenience to him, as is the publicity, and his party is not going to be at all happy about what happened. He apologises to all concerned.”

Eric Joyce is still MP for Falkirk, though he has resigned from the Labour Party and will not stand at the next general election: he still receives the salary and the perks. I frankly do not care who MPs have consensual sex with: drunk driving is a much more serious offense, and one where I don’t see that MPs or MSPs deserve the benefit of the doubt.

There is a code of conduct for MSPs, based on the seven key principles listed above:

This Section consists of general key principles. The key principles, as compared to the ethical standards set out in the Code itself, are aspirational in nature. Their intent is to guide and inspire members toward the very highest ethical ideals. The key principles, in contrast to ethical standards, do not represent obligations and do not form the basis for imposing sanctions.

Nothing in this code of conduct obliged Bill Walker, MSP for Dunfermline, to resign from the Scottish Parliament after it came out that he’d been bashing three of his ex-wives when they were married and a judge in a child-access case in 1990 (at Swindon County Court) said 6ft 2in Walker “didn’t spare his strength” when he smacked his third wife’s five-year-old child, and described him as a “bully” and a “tyrant”.

In the same case, Walker’s step-daughter from his second marriage gave evidence describing him as a “thoroughly violent and aggressive man” who regarded physical discipline as “almost a ritual”.

Although the SNP have expelled him from the party, nothing except his own conscience could get him to resign as an MSP. Since Bill Walker himself apparently regards his actions towards his wives, children and step-daughter with complacency, this seems unlikely.

His second wife, with whom he had three children during around 16 years of marriage in the 1970s and 1980s, said Walker punched her in the face and tore up her communion card, pushed her with such force she had to be hospitalised, and threw household items and poured orange juice over her.

In their divorce documents, Walker admitted striking the woman, but only after she had become “hysterical”.

It may surprise you to know that even the Metropolitan Police have a code of conduct, and its first paragraph says:

“The primary duties of those who hold the office of constable are the protection of life and property, the preservation of the Queen’s peace, and the prevention and detection of criminal offences. To fulfil these duties they are granted extraordinary powers; the public and the police service therefore have the right to expect the highest standards of conduct from them.”

Almost a year after the English riots, today Simon Harwood walked free from court, acquitted of the manslaughter of Ian Tomlinson in 2009. Facts not in dispute: Ian Tomlinson was trying to get home to the hostel where he lived, from his place of work. He took no part in the G20 protests: he is described as “walking slowly with his hands in his pockets” and saying “I want to go home. I live down there. I’m trying to get home.” He had already been approached by groups of police, and according to some reports he was drunk.

Video footage from three different angles shows one officer lunge at Tomlinson from behind as he was standing by a bicyle rack, to hit him across the legs with his baton. The officer is now identified as Simon Harwood: he had removed the shoulder badge number by which he could easily have been identified, but he was dressed as a member of the Metropolitan Police’s “Territorial Support Group” (TSG or CO20), supposedly “specialists” in public disorder policing, who wear NATO-style helmets and balaclaves, flame-retardant overalls and stab vests. After hitting Tomlinson, Simon Harwood pushed his back, causing him to fall: Tomlinson’s head hit the ground. The Channel 4 News video shows how Simon Harwood swung his arm back fully to head height before striking. None of these facts are disputed.

The group of police including Simon Harwood did not try to help the man Harwood had assulted. Later, Simon Harwood would justify his failure to write in his notebook that he had hit a man hard enough to knock him down, on the grounds that ten minutes later, when he was writing his notes in the van, he had forgotten all about it. One hundred meters away, as Simon Harwood was sitting in his police van writing his notes, Ian Tomlinson had collapsed again: a medical student went to help and another protester called an ambulance.

Dr Nathaniel Cary found that Ian Tomlinson died because he fell on to his elbow, which “impacted in the area of his liver causing an internal bleed which led to his death a few minutes later.” Eye-witnesses say he was struck so hard it looked as if he had been hit by a car. Simon Harwood claimed in his written statement to the police investigation:

“In the context in which this engagement occurred, if this was me, the use of force was necessary, proportionate and reasonable in all the prevailing circumstances.”

Simon Harwood has a history of violence, always as a police officer, so no criminal record:

he quit the Met on health grounds in 2001 shortly before a planned disciplinary hearing into claims he illegally tried to arrest a driver after a road rage incident while off duty, altering his notes to retrospectively justify the actions. Harwood was nonetheless able to join another force, Surrey, before returning to serve with the Met in 2005.

He allegedly punched, throttled, kneed or threatened other suspects while in uniform in other alleged incidents.

The Metropolitan Police’s current statement about Simon Harwood is:

PC Harwood had previously served with the Metropolitan Police Service as well as Surrey Police. The details of his previous employment were examined at the Inquest into Ian Tomlinson’s death. It is clear that insufficient recording and checks meant that detailed information regarding the officer’s misconduct history was not shared at key points. We got that wrong.

Since then there have been huge changes to vetting processes. Now all applicants, including officers applying to becoming police staff, as well those re-joining or transferring from other police services, are formally vetted and this involves a full misconduct intelligence check.

No organisation can be blamed for having inadvertantly employed bad apples. (Let us also not forget that the police are just ordinary workers like the rest of us.) But the Metropolitan Police’s protective attitude towards violence against an innocent bystander by one of their own was clear from their initial statement, which claimed that the police had gone to help Ian Tomlinson when he fell (they didn’t: eyewitnesses say that in fact the medical student who was trying to keep Tomlinson alive til the ambulance arrived was moved away by the police); that they called for an ambulance (they may have done, but the first 999 call was made by a protester), that the police “gave him an initial check and cleared his airway” and then moved him “back behind the cordon line to a clear area outside the Royal Exchange Building where they gave him CPR” (they didn’t) and that the crowd were throwing bottles at them (they weren’t).

Yet senior figures at Scotland Yard last week insisted, on the condition of anonymity, that the apparent assault on Mr Tomlinson had been detected by the police control room at Cobalt Street, south London, as soon as it happened and also that it had been “phoned in” by a chief inspector on the ground. A spokesman for the Metropolitan police denied this and said that, in response to the Guardian’s inquiry, they had checked with every chief inspector in the operation, none of whom said they had called in such a report. On Thursday morning, under IPCC direction, the City of London police began an inquiry into the death. They also began to brief reporters with a line that appears to have surfaced first on the day after Mr Tomlinson’s death at a meeting of the Gold Command group of senior officers who had policed the G20 protest. They heard reports from officers who had visited Mr Tomlinson’s family that he had been in a poor state of health. –Nick Davies examines the role of the Independent Police Complaints Commission and asks who the media can trust

The Metropolitan Police who drew up the official statement the day Tomlinson was killed by Harwood seem to have taken the chilling attitude that they should say whatever would make them sound good, and never mind the facts. Simon Harwood’s final testimony was that he had been frightened when he killed Ian Tomlinson: a confused, peaceable, middle-aged man who was trying to get home, standing with his back to Harwood with his hands in his pockets.

(With regard to Simon Harwood’s acquittal, rather than the decisions that delayed his trial and obfusticated his actions: read David Allen Green’s A police thug and an unlawful killing and CrimSolicitor’s Beyond Reasonable Doubt – Part II.)

The Crown Prosecution Service lawyer who initially decided it wasn’t appropriate to prosecute a police officer who’d hidden his number, got out of the police van and hit a bystander hard enough to kill him, then get back in and write up his notebook, not mentioning knocking a harmless man to the ground (Simon Harwood had been supposed to stay with the van he was driving throughout the G20 protests, and did for most of the day all but ten minutes)

was the same one who decided no officer should face charges for the shooting dead of Jean Charles de Menezes by police who mistook him for a terrorist. That shooting happened five years ago yesterday [22nd June 2005].

The Met commissioner, Sir Paul Stephenson, said he regretted Tomlinson’s death and offered his sympathy to his family. He said he was concerned by the video footage but that it was not appropriate for him to comment on the outcome of the IPCC inquiry or the CPS decision.

The Crown Prosecution Service has a code of conduct, too:

The fundamental role and purpose of the CPS and the RCPO is to protect the public, support victims and witnesses and deliver justice.

Protect the public: as prosecutors, we have a critical role to play in reducing crime and protecting the public. We will be visible and accountable; representative and diverse. We will deal in an open and honest way with the communities we serve. Our decisions will be informed by the public’s concerns.

Support victims and witnesses: we will enable, encourage and support the effective participation of victims and witnesses at all stages in the criminal justice process.

Deliver justice: we will ensure that the right people take the right decisions about prosecution at the right time. We will fairly, appropriately and firmly deal with criminal conduct in the most effective and efficient way and in a way that is transparent so that the public understand why decisions are taken. We will help to make the court system as effective and as efficient as possible. We will respect and protect the human rights of all those affected by our decisions, including victims, witnesses, suspects and defendants.

None of this is shown in the unnamed prosecutor who decided that there was nothing to be done legally about a police officer hitting a man and killing him: and nothing to be said against the two police officers, entrusted with guns, who shot a man for being brown-skinned in the wrong place at the wrong time.

Deborah Orr, Stockwell resident, remembers thinking when Jean Charles de Menezes was shot that “the police had been operating under unimaginable pressure, and that a terrible mistake would have been all too easily comprehensible under those circumstances”:

They seemed uninterested in admitting to their error, let alone understanding or learning from it. On the contrary, their right to kill people, and not to be called to account for it, seemed to be the only important thing. The Metropolitan police, in particular, seem to be in thrall to a culture of paranoid victimhood, in which the only people really worth protecting are themselves.

I’ve witnessed this tendency in action – and it’s something to behold. A couple of years ago, the noise of fighting could be heard in the street outside my home. Dozens of police arrived within minutes, including at least two armed-response units. One assumed that a huge crime was being perpetrated. It turned out that the massive, almost instantaneous response was because a police officer had been punched by a member of the public. The other week, by contrast, when I was racially abused and threatened with violence in the street, it took about 15 minutes for two officers to arrive, offer “reassurance” and an unwanted lecture in how “young black men can be aggressive”. When I said that I’d called more for law enforcement than for dodgy psychological support, the officers made it clear that I had no business questioning their choice of response to my poxy little “situation”. They certainly didn’t have to explain themselves to the likes of me.

The Metropolitan Police could not so easily get away with their attitude towards the general public without the help of the Crown Prosecution Service, who blandly decide in almost every instance that when the police kill or assault members of the public, the police have committed no crime in doing so.

So what good, then, do these “codes of conduct” do, when they represent an attitude that it appears neither police nor CPS even aspire to follow?

What all of these codes of conduct I have cited have in common is that we have no real means of trying to force the bodies who wrote these codes for themselves to abide by them.

We cannot make the Crown Prosecution Service take seriously the idea that a member of the police force should not be given broad latitude to kill with impunity from the criminal justice system.

Without proactive support from the CPS, we cannot make the Metropolitan Police live up to their claimed aspirations.

Keeping a Minister to the Ministerial Code requires the cooperation of the Prime Minister. As for monitoring MPs or MSPs behaviour, that’s at least partly dependent on their party: Eric Joyce and Bill Walker have lost their party membership, but Alistair Darling and many other MP expenses cheats have kept it.

This isn’t the last post in the Scottish Constitution series for July, but it is the last of the items which are generally agreed to as necessary to pin the powers that be down beyond wriggling. That this item comes last – a means of holding public individuals and bodies to a system of public ethics and a written code of conduct – fits as an underpinning of the idea of a Constitution: not merely a statement of who and what we are, but a legal means by which the powerless can bring the powerful to brook.

There’s been disagreement in the Scottish Constitutional Commission Group on Facebook about how much point a Scottish Constitution would have if the autumn 2014 referendum goes against independence. My own feeling is that

(a) If you want or expect “Yes Scotland” to win in autumn 2014, you should want as diverse a range of Scots as possible, including No voters and undecideds, to take part in drafting, publicising, and ratifying a Scottish Constitution starting now;

(b) If you want “Better Together” to win in autumn 2014, but take seriously Scotland as a devolved country within the UK, you should want a Scottish Constitution that could be enforced by the Scottish Parliament and legal system, even if sections of it would apply only after independence, if that happened;

(c) If you’re undecided how to vote, but expect “Better Together” to win in autumn 2014 because so far it has the majority, then you should want a Scottish Constitution that has been drafted by and ratified by as many and as diverse Scots as possible, so that we have a better idea of what we would be voting for (and against) than either “Yes Scotland” or “Better Together” have given us.

I am – as I have said elsewhere – neither lawyer nor constitutional expert. What I’ve written here, and intend to continue with til the end of July, is what I’ve come to think about the ideas of a Constitution, and why I want Scotland to have a written Constitution, whether independent or devolved.

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Filed under Corruption, Elections, Justice, Riots, Scottish Constitution, Scottish Culture, Scottish Politics

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