I value my freedoms. Perhaps most valued is the freedom to enjoy a degree of privacy in living my own life without undue interference. But of course this is a negotiated position – weighing your freedoms against mine and then exercising the privilege with due consideration for others’. Equitable coexistence demands compromise, pact and praxis – enshrined in the mechanisms of the state.
We accept the authority of these institutions because we’re party to a valid debate. But consent can easily evaporate when the establishments are seen to stray from the accepted criteria. Then the door’s open to anarchy and, more probably, tyranny and subjugation.
An authentically negotiated entente continues to take account of all interested parties. Seems to me, though, that these positions are frequently paraded with words laced in ambiguity; the intention being to mask intransigence with an untenable veneer. There’s actually no agreement, just a covert brinkmanship by those with a wider agenda.
Politicians always seem to be at it but would probably prefer to regard their moves as merely strategic. In reality dissembling can creep into any aspect of public life where scruples might be traded for gain. It’s the pretence that troubles; a pervasive expectation of deceit that now seems to underpin much of contemporary existence.
I fear we are normalising a behaviour that can only serve to erode the credibility of those very institutions which should safeguard our freedoms. As we become accustomed to veracity being supplanted by a more curated and expedient alignment with facts, self interest and personal ambition will gradually eclipse and undo any realisation of civic responsibility and the greater good.
Recently I’ve been reading a little in connection with the Autism Spectrum. Not keen on the term “disorder”, which feels like a rather intolerant and partisan response to non-conformity. It is, in fact, a spectrum of variation which can extend to intellectual and computational agilities quite outside the “normal”. Clearly the label also incorporates some very challenging differences and I’m curious about the rationale for such a broad spectrum. Why such a diverse portfolio of characteristics; where’s the common thread that bundles them together?
Nevertheless we ignore diversity at our peril. Treating neurodiversity purely as a problem to be cured or mitigated seems remarkably short sighted. Anyway, there’s no denying that I find sympathy, and to an extent identify, with some of the recognised traits. In particular, I feel a decided affinity with the popularly held view that those on the spectrum don’t lie, but I will acknowledge here that I bring no facts and figures and am just exploring an idea.
Anecdotal evidence would have it that there can be a preference for blunt and literal communication and perhaps a certain indifference for social posturing. The plea – “why can’t people just say what they mean”; or the slight – “you’ve no small talk”; both might be considered to derive from an incapacity for social manoeuvring.
Studies investigating the facility for deception suggest that in this, a deficit in social perspective-taking may be mitigated by effortful observation and social learning. Clearly the conventional view holds that an understanding of deceit is a component of social proficiency and that those on the spectrum are thus disadvantaged.
But surely this is little other than a failure to conform to established patterns of behaviour? I see no underlying merit in deceit. It’s a talent that’s rewarded in playing social games; a competitive need in seeking power, control and profit.
A research team falsifies results to gain the admiration of their peers or perhaps achieve a commercial advantage. They may succeed in either for a while but ultimately it is a betrayal destined to fail us all. Deceit is an assault on coherent and inclusive progress.
Naturally, if you’re about to be served up as a morsel for a sabre-tooth then a little deceit and disguise could prove handy. But we’ve moved on, and as Covid shows, cooperation is really the only enduring strategy. If we’re going to cope with climate change and the consequences of pillaging our planet we have to fundamentally change who and what we are and how we think. Tinkering with the hardware may help but it’s essentially a deck chair job. Playing games – hubristic nationalism and internecine contest, for example – simply serves as an emissary for the threat.
All I can say, is that I acknowledge the perceived place for deceit within social interaction, but am reluctant to embrace; just as my reluctance to endorse a need for “white lies” has, at times, proved a certain source of friction. I can’t escape a fundamental distaste for maintaining or conveying that which I know to be false or without foundation. In embracing and promulgating doctrines relieved of sensible consideration the capacity for rational understanding is betrayed and I forfeit something of my sense of self.
But of course, deceit is everywhere – it’s called strategy or tactics – an essential component of “success” for some. This is gamesmanship, gaining the competitive edge and clearly there’s a well established competitive instinct that goes beyond mere survival. Winning; supremacy; for many an end in itself. Game playing is a cultural norm, but when it intrudes on the more vital aspects of life there are consequences. Bridges collapse, buildings burn down, innocent people suffer – not because we’re pushing the envelope but because somewhere along the line there are those playing for advantage and finessing the facts.
And what of those who don’t win or dominate? Perhaps they don’t even want to play games? When playing is the only option, it is their lot to become caught up in the arcane mechanisms and disadvantaged as a loser.
A few years ago, as the series of events that so injured my friend started to develop, I had some brief conversations with a “rising star” of the Scottish legal establishment. This young lawyer, in response to my raising an issue, reminded me that “it’s just a game you know”.
That’s just the problem. It isn’t a game. We need functioning institutions; we need a justice system, not an arena for ambitious youngsters to hone their players’ skills or for tired old hacks to exploit process with well worn tricks bludgeoning victims into compliance.
Game playing with its winners and losers and tactical deceits has no place here. But so much of contemporary life now seems to have become immersed in just such competitive adversity. And hand in hand goes a misplaced normalisation of strategic misrepresentation at the expense of objective truth or integrity.
As before, I’ll finish with an example from recent experience. An issue concerning the location of boundaries and specifically that adjoining a strip to the east of my friend’s plot. Her only ambition throughout remained to establish and ensure legitimate compliance with her registered title as advised, in detail, by Registers of Scotland.
In the course of events the neighbour employed a “surveyor” in an attempt to identify an alleged triangular “further encroachment”. With apparent indifference for any formal guidance, this resulted in a letter in which it was proposed that:
“in order to avoid this rear (north) boundary having to be realigned our clients would propose merely moving the eastern boundary back to accommodate the difference in the area.”
Clearly a proposal of quid pro quo to compensate for the alleged additional loss. In the writ, however, issued by a second lawyer some nine months later it was referenced thus:
“(the letter) . . . offered that the triangular area of encroachment could be overlooked provided the boundary of the three metre strip was correctly re-aligned.”
With practised ambiguity, the latter suggests a magnanimous disregard for the alleged further encroachment provided the original issue was properly addressed. A rather different sense – presumably designed to show his clients in an accommodating light. This in contrast to a carefully curated but entirely false impression of uncooperative aggression with which he was intent on burdening my friend. What was the expression used by Alex Salmond’s QC when overheard on the train? “Put a smell on her”.
And there’s Scottish justice in action; parasitic players dickering with our lives and at our expense. A culture with little regard for factual truth and where moral integrity appears long forfeit to the imperatives of the game.
This woman had no other agenda. She was quite happy to abide by any legitimate determination regardless of outcome and open to any sensible dialogue. A woman entirely committed to reason and proper conduct. But this being an attack without just cause it could only be advanced through abusive subterfuge.
The writ concluded the particular article by claiming a refusal to cooperate:
“. . . responded by letters. . . refusing to agree to a re-alignment of the eastern boundary fence”
The actual response with regard to the eastern fence was as follows:
“Surely I needn’t remind you that the fence in question would have been realigned to accord with the latest advice from RoS over six months ago had your clients not intervened. You’re also well aware that there is, consequently, no fence at all at this boundary”
On both counts the lawyer is surely well aware that his statements are deliberately misleading. That should be considered unacceptable conduct. I took these and numerous other apparent transgressions – some far more overt – to the Scottish Legal Complaints Commission (SLCC). After a wait of more than nine months all were dismissed as “totally without merit”.
The particular issue above was primarily sanctioned on the grounds that:
“ (the lawyer) is entitled to exercise his professional judgment when interpreting the letters of. . .”
This would be laughable were it not such an indictment. This wasn’t an offer to overlook; it was a proposal to exchange one thing for another; and the woman hadn’t “refused”. The “interpretations” are clear departures from any intended or recognised meaning.
‘Argument from authority’ (argumentum ad verecundiam) – a simple fallacy of informal logic. The lawyer’s professional standing is an irrelevance in drawing meaning from these words. Otherwise the corollary has the lawyer’s precedence regardless of reason.
Another instance notes an entitlement:
“to exercise his professional judgement when interpreting . . . and would do so in a way which defends his clients’ interests”
Apparently his professional standing not only conveys superior powers of “interpretation” but an entitlement to manipulate these to his best advantage. SLCC appear to be promoting the expedient surrender of any semantic homogeneity. A convenient authority for fabrication and deceit.
Elsewhere the dismissal appears to be mainly predicated on a view expressed by the lawyer’s firm:
“. . . it appears the complainer wishes to revisit the court action and had she wished to assert her position as stated in the complaint, there was an appropriate forum, namely the court action between the parties”
Consequently there followed repeated assertions such as:
“. . . the factual accuracy of these statements is not a matter for the SLCC to consider; it would have been a matter for the court to consider,”
Or (accompanied by quotes from Lord Macphail):
“ Accordingly, the requirement upon Mr —– when drafting the Initial Writ was to aver facts which his clients offered to prove.”
Well court action was not an affordable option and the matter was eventually concluded by formal agreement. More to the point, my complaint was not an attempt to revisit and the above is just a smokescreen. Quite specifically it does not endorse known falsehood.
The Law Society of Scotland rule B1.2: Trust and personal integrity, states:
“You must be trustworthy and act honestly at all times so that your personal integrity is beyond question. In particular, you must not behave, whether in a professional capacity or otherwise, in a way which is fraudulent or deceitful”.
My complaint was simply that the conduct of this lawyer, irrespective of any discovery through court action, breached that rule. I’ve touched on other issues concerning a Registered Title in previous posts. But to deliberately misrepresent the contents of correspondence is unquestionably deceitful. To misrepresent the conventions employed by a Scottish public body in discharge of their statutory duties is deceitful. (ignorance would be incompetence – B1.10). Pressing an action for which there is no logical foundation is both intellectually incompetent and abusive.
None of the above is open to abrogation by court or client and therefore, in my view, SLCC are derelict in their duty by refusing further investigation of evidently deceitful conduct. Indeed, I had endeavoured to confine myself only to those departures from veracity reasonably believed to be independent of client advice and so denied any procedural sanction. A final example follows:
In correspondence the woman, despite contrary guidance from the Registers, had agreed to comply with the neighbour’s demands, simply to see an end to the matter. In a letter of 28th April this was afforded a somewhat patronising acknowledgement thus:
“. . .we note you are willing to agree to the erection of a fence to mark the Eastern boundary. . . at a distance of three meters. . . This is a helpful development.”
But by mid July the writ was issued which stated:
(The defender) “. . .refuses to tolerate any attempt. . .to re-site the boundary fence at the east. . . to a distance of three meters. . .”
Nothing had changed; far from refuse, there was no more she could do to indicate her compliance. However you play with the words, this is a direct contradiction of the lawyer’s own stated acknowledgement. A further small instance of the gratuitous and pernicious dissembling that inflicts such trauma but has, nevertheless, been sanctioned by SLCC.
This morning I listened to one of the democracy campaigners in Hong Kong lamenting the extent to which the law was now being subverted to apply a specious legitimacy to political incarcerations. But my dismay is no less when confronted by the disingenuous ease with which a perfectly decent citizen has been abused here in the UK.
The institutions which cradle our freedoms are fragile. We can’t afford complacency or neglect. The legal establishment has the power to break, bankrupt and imprison but is substantially beyond democratic sanction. Without credible independent scrutiny and accountability there can be no trust.
Justice isn’t a game for the benefit of the incumbents. The law’s there to ensure equity, safety and underwrite freedoms for all. A state that likes to trumpet its place in the vanguard of caring enlightenment should do better.
Outing The Pathology 