Ai Weiwei and his legal team have, since 2011, fought allegations, arrests and fines for tax evasion case widely regarded as "political retaliation" by the Chinese goverment.
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The Ai Weiwei papers

On 27 September, the Chinese courts rejected Ai’s second appeal against a £1.5m fine for tax evasion. Here, his legal team sets out the facts of a case riddled with corruption and secrecy.

An Introduction
Jerome A Cohen

The New Statesman is rendering a great public service in making available an English-language account of the Chinese government’s use of its tax laws to persecute the innovative and courageous Chinese artist and activist Ai Weiwei. Having been pressured by world opinion to release Ai from the harsh and blatantly illegal confinement to which its police had subjected him for almost three months, the Chinese government decided to crush him by resorting to economic measures whose illegality would presumably be less apparent both to its own citizens and to the outside world.

Fortunately, thanks to the presentation that follows this introduction, the unfairness and abuses that have marked this tax case have been unmasked. As Ai’s lawyers make clear, at both the administrative and the judicial levels the proceedings against him have been a farce. Much of the evidence apparently used against Ai was unlawfully collected and retained by the police and the tax authorities. Administrative hearings that purported to determine his alleged tax liability were truncated and plainly in violation of international standards of due process of law, and the subsequent judicial reviews were no better.

I personally am saddened at this spectacle for reasons that transcend our friendship and my admiration for Ai. It is nauseating to witness the damage that the Chinese government has chosen to inflict on its reputation through the misuse of its criminal justice and tax systems. As an international lawyer and a law professor seeking to assist in China’s economic development, I spent over 20 years co-operating with Chinese officials who were seeking to develop a legal  system that would earn the confidence of its own people and of the foreign business community. Beginning in 1979, for several years I enjoyed especially close relations with the National Taxation Bureau, which, during the early period of the Deng Xiaoping reform era, led the way for other government agencies in establishing impressive regulations and procedures for carrying out its responsibilities and for developing a legal process worthy of respect.

The handling of the Ai Weiwei case has been totally inconsistent with that earlier accomplishment. Neither the Chinese nor the foreign communities can afford to ignore the scandalous mistreatment of Ai. If he can become the victim of criminal and commercial injustice, no one in China or who deals with China can feel safe.

Jerome Cohen is a professor of law at New York University and an expert in Chinese law

The Fake Cultural Development Ltd tax case

1. Process summary

On 3 April 2011 in the morning, Ai Weiwei was taken away by police at passport control at Beijing Capital International Airport.

On 3 April 2011 at midday, Beijing Public Security searched Ai Weiwei’s residence for almost 12 hours. They confiscated 127 items, including computers and CDs. Ten people were taken to the police station for questioning until the early morning.

On 3 April 2011 at midday, Ai Weiwei’s assistant Wen Tao was kidnapped by four plainclothes police officers and went missing. He was illegally detained at a secret location and not released by public security until 24 June. Before this, his family was unaware of his location and received no official notification.

On 6 April 2011 in the evening, Beijing Municipal Public Security went to Beijing Huxin Ltd, the bookkeepers of Fake Ltd. They searched company information, including bookkeeping records and financial statements, dating from its establishment. Xinhua News Agency then published an English bulletin: “Ai Weiwei is suspected of economic crimes and is now being investigated according to the law.”

On 7 April 2011, Beijing Public Security brought the company accountant, Hu Mingfen, who was visiting family in Lanzhou, back to Beijing. After being put in a detention centre for one month, she was transferred to a secret location and detained illegally until she was “granted bail” on 13 June. Her family received no official notification.

On 8 April 2011, the Second Tax Inspection Bureau and Beijing Public Security searched and confiscated all of Fake’s financial and accounting information, contracts and seals from 2005 to 2010.

On 9 April 2011, the Fake shareholder and manager Liu Zhenggang was kidnapped by four men in plain clothes. After being put in a detention centre for one month, he was transferred to a secret location and detained illegally until he was “granted bail” on 11 June. His family was unaware of his location and received no official notification.

On 10 April 2011, the driver Zhang Jinsong was taken away. After being put in a detention centre for one month, he was transferred to a secret location and detained illegally until he was “granted bail” on 23 June. During this time, his family was unaware of his location and received no official notification.

On 12 April, Beijing Local Taxation Bureau Second Tax Inspection Bureau questioned Fake’s legal representative, Lu Qing, for the first time. On 20 May 2011, Xinhua News Agency published a bulletin stating: “Public Security has investigated the alleged Ai Weiwei economic crimes case. The preliminary finding is that Beijing Fake Cultural Development Ltd, under the actual control of Ai Weiwei, has committed offences including evading a large tax payment and deliberately destroying accounting records.”

On 22 June 2011, after 81 days in detention, Ai Weiwei was released “on bail” and returned home. His family members received no official notification. They could not get information about his suspected crime, what forceful measures were used and where he had been detained.

On 14 July 2011, the Bejing Local Taxation Bureau Second Tax Inspection Bureau held a closed hearing.

On 1 November 2011, the Beijing Local Taxation Bureau Second Tax Inspection Bureau decided that Fake had committed tax evasion and was required to pay 5,263,756.61 yuan in back taxes, a 3,190,331.52 yuan late-payment penalty and a 6,766,822.37 yuan fine. The three payments totalled 15,220,910.50 yuan (£1.5m).  n 29 December 2011, Fake asked for an administrative review at the Beijing Local Taxation Bureau. On 29 March 2012, the Beijing Local Taxation Bureau turned down the request for a review.

On 13 April 2012, Fake sued the Beijing Local Taxation Bureau Second Tax Inspection Bureau at Beijing Chaoyang District People’s Court. The trial opened on 20 June 2012. On 20 July, the court rejected the entire Fake case.

On 3 August 2012, Fake lodged an appeal at Beijing Second Intermediate People’s Court. On 27 September 2012, in the company’s second and final appeal, the intermediate court upheld the original decision.

2. Points of controversy in the tax case

The Fake tax case contains grave problems and controversy in terms of both procedure and facts.

1. Points of controversy in the procedure

Procedure is essential in implementing justice.

Although Fake repeatedly raised serious procedural issues, the tax authorities and courts gave
no response. The main problems at each stage of the procedure are as follows:

1.1. Beijing Municipal Public Security Bureau
1.1.1. Public security exceeded its authority in the Fake tax case.

According to the Criminal Law Amendment (7) and the regulations on the administrative pre-procedure related to “Provisions (II) of the Supreme People’s Procuratorate and the Ministry of Public Security on the Standards for Establishing Criminal Cases under the Juris - diction of the Public Security Organs for In - vestigation and Prosecution”, only after the offending party has declined to implement tax administration penalties and after the tax organs have transferred the case to public security organs can public security organs establish a criminal case against the responsible parties. The Second Tax Inspection Bureau made its decision against Fake only on 1 November 2011. It is clear that in April 2011 public security detained five people in secret, including Ai Weiwei, on the grounds of “tax evasion”. They searched and confiscated Fake financial information, which was exceeding their authority and handling the case illegally.

In the Fake tax case, the tax organs were completely reliant on the Public Security Bureau for their evidence, and the police were pushed to the legislative foreground, which strengthened the contradiction and artificially produced   case of “major impact”. The police administration was brought into the government administration mechanism, which in essence weakened the function of legal and responsible adminstration.

1.1.2. “Arrest before investigation” is a violation of the law. On 3 April 2011, public security took Ai Weiwei away. They then detained four people, including a Fake shareholder and the company accountant. However, of the evidence  in the file put together by public security, none was collected before 3 April 2011. The essence of “an arrest before investigation” is assuming that a suspect is guilty.

1.1.3. The authorities confiscated all the company’s account books and refused to give them back. During the Fake case review, first hearing and final hearing, the company’s account books were confiscated by Beijing Municipal Public Security and not given back.

1.2. Beijing Local Taxation Bureau Second Tax Inspection Bureau

The Bureau was responsible for the adminis - trative handling of the case. The following problems existed in its administration and law enforcement:

1.2.1. More than 95 per cent of the evidence came from public security and was obtained illegally. The Second Tax Inspection Bureau issued the following statement on the composition and source of the “evidence list”:

“1. Account books, certificates and related tax documents were provided to the defendant after they were obtained by public security  organs from the plaintiff’s bookkeeping company;

2. Third-party account books, certificates, instructions and other materials were provided to the defendant after public security organs obtained them;  

3. Notes from public security questioning were taken by public security and then provided to the defendant;

4. Bank statements etc were provided to the defendant after they were obtained from the bank by public security;

5. Inspection process documents and notes were produced by the defendant; 6. Tax records, inspection materials and certificates from tax organs were obtained by the defendant.”

This indicates that most of the evidence that the defendant cited in the Fake tax case and for making a decision came from the Public Security Bureau.

Fake believed that: first, the evidence “transferred” from public security organs was obtained while violating legal procedures. It therefore constituted illegal evidence and should be discounted. Second, the Law on the Administration of the Levy and Collection of Taxes has given tax organs tax inspection rights through legal means. This is the responsibility of the tax organs, and the public security organs should not be investigating on their behalf.

The Second Tax Inspection Bureau argued that the public security organisations exercise judicial authority. According to the 57th and 58th clauses of the Law on the Administration of the Levy and Collection of Taxes, tax organs have the right to obtain relevant documents from organisations including public security organs. Based on this, obtaining evidence from public security organs is legal.

Fake believed that the 57th and 58th clauses of the Law on the Administration of the Levy and Collection of Taxes gave tax organs the right to investigate “relevant organizations and individuals, regarding taxpayers, withholding agents and other parties and their situation regarding tax payments or tax withheld and remitted or collected and remitted”. This is completely different from public security investigating taxpayers and transferring evidence, so the defendant’s response was irrelevant.

1.2.2. None of the evidence had been crossexamined. This should be regarded as a lack of factual basis. During the hearing procedure, the bureau presented only part of the review document. It had not been checked. During the trial, the plaintiff’s right to cross-examine was also removed by the court.

1.2.3. In order to comply with public security, coercive methods were used to obtain evidence. The Second Tax Inspection Bureau and public security, on condition of “bail”, coerced Ai Weiwei, who was in prison, to sign a “recognition of alleged tax violations” on 22 June 2011.
This was self-incrimination, and was used as forceful evidence that Fake had evaded taxes. It would be hard to imagine that the “recognition of alleged tax violations” could be a legal document at the tax inspection trial stage. However, it appeared at the previous tax inspection stage, as if a man-made satellite had appeared in the Qin or Han Dynasty.

1.2.4. The tax inspection work had no statutory elements or contents.

The Second Tax Inspection Bureau did not have documents such as the “tax inspection working paper”, “tax inspection report” and “tax inspection trial report”. The contents of the “decision declaration” were incomplete. It did not mention how the “tax evasion” amount or the late-payment penalty amount were calculated.

1.2.5. The hearing process violated the law. The Second Tax Inspection Bureau did not conduct an open hearing on the basis that the case involved commercial secrets. This reason is not valid, and the facts later confirmed that the socalled commercial secrets did not exist.

1.3. Beijing Local Taxation Bureau

The bureau carried out the review. On 2 February 2012, Fake applied to the bureau for a review of the documents and hearing attendance. On 27 and 28 March the document inspection started. On 29 March, the bureau made a decision about the review. Not only did it refuse to conduct a hearing, it made a decision about the review in less than 12 hours after the lawyers finished inspecting the document. They deprived the attorney of his right to state his case and the right to defence.

1.4. Beijing Chaoyang District People’s Court

Fake sued the Beijing Local Taxation Bureau Second Tax Inspection Bureau at Beijing Chao - yang District Court. The hearing was held on 20 June 2012.

1.4.1. It was called an open trial but in fact it was a secret trial. A trial as conspicuous as this was arranged in a small court, which could hold five spectators only. Five insiders were arranged to take up all the seats, and Fake was not allocated any spectator seats.

1.4.2. The court did not carry out its obligation in collecting evidence. Fake had previously requested the court to provide evidence of the plaintiff’s account books and certificates that were confiscated by public security, but the court had decided not to collect the evidence prior to the court session, nor had it sent a notification to the plaintiff saying that collecting this evidence was not allowed.

When Fake asked the court about this, the collegiate bench said, “We will answer this after the trial opens.”

1.4.3. The court did not carry out its obligationto call witnesses. Fake applied to summon Liu Zhenggang, Hu Mingfen and others as witnesses, but the court did not inform them. It claimed that the obligation to notify lay with the plaintiff. Fake asked for the defendant’s law- enforcement officials – ten people, including You Pengnan – to testify, but the court did not arrange for it.

On the contrary, however, after the court opened, You Pengnan appeared, representing the defendant. Fake raised an objection, but the collegiate bench replied that the company should raise it again after the trial.

1.4.4. The court removed the plaintiff’s right to present evidence. Fake requested evidence
from the collegiate bench prior to the opening of the court, but received no response. On 20
June in the morning, Fake went to the Three Shadows Cultural Exchange Centre and obtained evidence partly sufficient to overrule the decision. In the afternoon of 20 June, before the court opened and three times during the court session, the evidence was presented to the collegiate bench, but the court did not accept it, because it “overran the deadline for presenting evidence”.

1.4.5. The court refused to investigate the legitimacy of the sources of the evidence. According to law, the defendant can collect his own evidence, but it was all collected by public security authorities. More than 95 per cent of the evidence on administrative behaviour presented by the defendant was collected by public security organs.

Public security intervened in the tax case illegally, and the evidence was illegally obtained from detainees, which was not legitimate. Therefore, the plaintiff asked for the above evidence to be discounted. However, the court claimed that “the legitimacy of the public security investigations is not within the range of this court’s hearing”.

1.4.6. The court refused the plaintiff’s legitimate request to check the original evidence documents, and illegally removed the plaintiff’s right to cross-examination. During the session, the defendant failed to present any original documents for evidence. The presiding judge, Wu Nan, upon the request to see the documents, repeatedly struck his gavel and said, “As for the documents, the court has already made a decision; do not bring it up again!”

The court “summarised” when questioning the evidence and did not control the questioning time reasonably. Pieces of evidence numbering a thousand pages were given five minutes for questioning: on average, less than one second for every page of evidence. If the time exceeded five minutes, then the questioning would be regarded as abandoned.

1.4.7. The court removed the plaintiff’s right to debate. The plaintiff’s speech was repeatedly interrupted by the judges and was counted down. During the debate stage, three attorneys spoke for only ten minutes in total. The plaintiff could not fully express an opinion.

1.4.8. For these reasons, the plaintiff considered that the collegiate bench could not carry out this trial justly, and therefore requested the court to withdraw the case.

After the court was adjourned, the collegiate bench refused the request. The plaintiff appealed the decision, and the Chaoyang District Court refused orally, refusing to offer any written documentation.

1.4.9. The court refused to allow the litigants and the representatives to copy the court notes.
After the hearing, the court administrative divisional director promised the defendant that the following day at two o’clock in the afternoon they could come to the court to copy the notes, but the next day when they went to court, copying was no longer permitted, the court citing internal regulations.

1.4.10. The order of legal procedures was swapped when the court refused Fake’s request for evidence only after the trial. On 7 June 2012, Fake made its “application for collecting evidence” to the court.  The court did not respond. Yet after the court opened on 4 July, it decided not to allow any evidence to be collected. The reason given was that the defendant “did not meet the conditions for requesting evidence”. However, the decision did not contain a notification, required by law, to specify “which group and which piece of evidence violated which condition for evidence collection”.

2. Focus of controversy over the facts of the case 

Global Times, a subsidiary of the Chinese official newspaper the People’s Daily, published an editorial, entitled “The law will not bend for mavericks”, on the Ai Weiwei tax case, saying that certain western governments and “human rights organisations” had attacked China with strong commentary without understanding the true situation.

What is the truth behind the Ai tax case? Fake Ltd was established by the shareholders Lu Qing and Liu Zhenggang. Lu Qing was the legal representative and the wife of Ai Weiwei. Liu Zhenggang was business manager, responsible for company operations. The company’s income came mainly from design services. Ai Weiwei was not a staff member of Fake, but provided guidance and advice to the design services of Fake as an independent artist.

Fake went into operation in 2001. The tax organs believed that, over ten years of operation (until 2010), Fake concealed three counts of income, totalling 15,823,724.36 yuan. They pursued unpaid taxes of 5,263,756.61 yuan, a fine for overdue payment of 3,190,331.52 yuan and a penalty of 6,766,822.37 yuan, totaling 15,220,910.50 yuan.

Regarding the facts, the parties were in controversy over the following:

2.1. Who was the tax-paying entity for these three projects with alleged tax issues?

The standard for determining the tax-paying entity depends not on form, but on substance. This is the so-called principle of substance over formality in tax law. The heart of the problem is, who was the true controller of these three projects? Usually the actual controller is determined by who has the right to dispose of and the right to benefit from income. In tax law, the object of the test to determine the right to dispose of and the right to benefit from income is the sum of income. The public security organ, tax organ and the lawyers of Fake all acknowledged that Liu Zhenggang disposed of and controlled the project funding in the case. It is a shame that the conclusion drawn by each party was very different.

2.2. Was it tax evasion?

Regardless of whether the tax-paying entity was Ai Weiwei, Fake Ltd or Liu Zhenggang, the fact that tax duty had not been declared on the income for the three engineering projects is not in dispute. The key to the problem is, does the failure to declare taxable income constitute tax evasion?

According to China’s Law on the Administration of the Levy and Collection of Taxes, there are generally three types of failure to declare tax duty:

2.2.1. “Tax evasion”: falsely filing or deliberately failing to file taxes, causing an underpayment
of tax, following Term 63 of the Law on the Administration of the Levy and Collection of Taxes. This is breaking the law. If it reaches a certain ratio, it constitutes a crime.

According to Term 201 of the Criminal Law, it is the crime of evading payment of tax. The constituents must consist of the resulting elements, namely underpayment of tax and of a clear amount.

2.2.2. “Tax leakage”: not deception or concealment, but human error causing underpayment of tax, according to Term 64, Article 2 of the Law on the Administration of the Levy and Collection of Taxes. It counts as a normal administrative offence, not a criminal offence.

2.2.3. “Making up tax”: underpayment of tax caused by reasons not related to the actor (including incomplete factors in levying tax), as in Article 35 of the Law on the Administration of the Levy and Collection of Taxes. For example, where, although it is clearly income, the expenditure can’t be verified. The tax organ, by approving the profit rate, makes complete the factors in levying tax to realise the aim of levying tax. This type of underpayment of tax is the result of the expansion of administrative powers of the tax organs. It is not breaking the law, so the authorities cannot levy an overdue payment fine or penalty fine.

The contention of this case is focused on the dispute between “tax evasion” and “making up tax”. A simplified breakdown illustrates:

According to the law, when the cost is difficult to verify, an estimated tax should be levied. It should not be handled as a case of tax evasion. When the costs and expenses of a project cannot be checked, it cannot be asserted that the party has been evading tax.

2.3. The issue of verifying costs and expenditures for the three projects

The Second Tax Inspection Bureau said, “The defendant, upon confirming the total amount of taxes that the plaintiff should have paid, has also confirmed the costs related to the taxable income and subtracted it according to regulations.”

The plaintiff believed that the three projects that the tax bureau considered as evading taxes are defined by incomes that greatly mismatch with their costs. The Second Tax Inspection Bureau verified the income of the Boya Garden project as 1,107,716.00 yuan and its costs as nil. That goes against common sense. Income from the Three Shadows and Upper House projects was 14,716,008.36 yuan, the confirmed cost was nearly 1,047,349.39 yuan and the rate of profit was 92.88 per cent.

The costs were ridiculously low because the public security and tax organs jointly and deliberately concealed evidence of costs. For example, it has already been proved that Three Shadows, upon requests from the public security organ, presented it with receipts for expenditure of 3,738,551.06 yuan for materials used in the project. However, the total cost for all three projects that the tax organ received from the public security organ was only 1,047,349.39
yuan, less than a third of the cost for one project. Through this kind of deliberate selection of evidence, the profits of the projects were artificially enhanced to frame the company.

3. Conclusion

When one looks at the overall progress of the case, it is clearly an erroneous lawsuit. How could it have proceeded so smoothly? Because all the processes had already been arranged. The tax law-enforcement organ, the administrative review organ, the judicial court or representative lawyer were all following a set course. Administrative surveillance, independent trial and lawyer participation had no opportunity to exercise their rightful functions.

Tax cases such as that of Fake are ubiquitous in China. Unjust cases of sanctioning a party through tax means are also common. Most of the affected parties choose to remain silent in exchange for a reduction of the penalty by the tax organisation.

Fake used all means to fight its case, exposing illegality at each stage. This is unprecedented. The wish is that, through the heavy price paid by Fake, through the price for freedom paid by a person who doesn’t believe in following trends and who dares to speak the truth, we can make progress in China’s law enforcement.

The information used in this article was provided by Ai Weiwei’s lawyers

This article first appeared in the 22 October 2012 issue of the New Statesman, Ai Weiwei guest-edit

MILES COLE FOR NEW STATESMAN
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Is it Ruth Davidson's destiny to save the Union?

Ruth Davidson is a Christian, gay, kick-boxing army reservist who made a passionate case for the EU and has transformed the fortunes of the Tories in Scotland.

In the end it made no difference, but during the EU referendum campaign Ruth Davidson achieved something that nobody else did: she made the case for Remain sound thrillingly righteous. In a live, televised BBC debate at Wembley Arena in London, she denounced the “lies” of the Leave campaign, turning to the crowd to declare, twice: “You deserve the truth!” Funny, fervent and pugnacious, Davidson pounced on the bluff assertions of Boris Johnson with gusto, a terrier savaging a shaggy dog. As she departed the podium, flashing a light-bulb grin, she left a question hanging in the air: how far can Ruth Davidson go?

On the face of it, it was a risk for the ­Remain campaign to send the leader of the Scottish Conservatives to Wembley, when most of its persuadable voters lived in England. Yet, according to Andrew Cooper, David Cameron’s pollster and an influential Remain strategist, “Ruth’s name was inked in from the beginning.” After the debate, nobody called this confidence misplaced. Davidson was acclaimed as the star of the night. English observers began to appraise her as a major player in national politics, even as a possible future prime minister.

The EU debate was, for Davidson and for Scots, the least energetically contested of four recent contests, following the Scottish independence referendum in 2014, the general election in 2015 and the Scottish Parliament elections in May 2016. In the last one, Davidson led her party to second place, overtaking Labour, and the Conservatives became the main opposition to Nicola Sturgeon’s Scottish Nationalists. It was their best result in nearly 60 years and evidence of an astonishing turnaround.

When Davidson was elected leader in 2011, it was like being declared the mayor of a ghost town. Her party’s core voters had long fled, first to Labour and then to the SNP. Margaret Thatcher and successive national Tory leaders had made it almost impossible for Scots to admit to voting Conservative, or even to being friends with anyone who did. It wasn’t just that the Tories were poisonous to the touch; they were on the verge of irrelevance. They held 15 out of the 129 seats at Holyrood. They barely mattered.

They matter now. The stigma of voting Tory has not been entirely erased, but the Conservative brand has been saved, or perhaps subsumed by its Scottish leader’s personal brand. On the ballot paper in May, voters were invited to put a cross next to the slogan “Ruth Davidson for a strong opposition”; party activists knocking on doors introduced themselves as being from “Team Ruth”. A recent poll found that Davidson was the most popular politician in Scotland, surpassing Sturgeon.

Ruth Davidson has been a politician for just five years. If you need reminding of how hard it is, even if you are clever and able, to become a high-level political performer on half a decade’s experience, recall the defining moments of a few Labour MPs of the 2010 generation: Liz Kendall’s flameout, Chuka Umunna’s failure to launch, Owen Smith’s bellyflop. David Cameron’s rise might seem to have been comparably quick, but he had been working in Westminster politics, on and off, for 13 years before he ­became an MP. Three years before being elected leader of the Scottish Tories, Davidson hadn’t even joined a political party.

Davidson may be the most gifted politician in Britain. “She’s a natural, and they are very rare in politics,” Cooper told me. The question for her is whether she will ever convert talent into power.

 

*****

In August, I went to see Davidson speak in Belfast at an event organised by Amnesty International on behalf of the campaign for gay marriage in Northern Ireland. She made a case for equal marriage that was also a case for the institution of marriage. “More than 40 years married and my parents still love each other – and I look at what they have and I want that, too, and I want it to be recognised in the same way,” she said.

She paused to note that the passage was taken from an address that she made at Holyrood during the first reading of Scotland’s equal marriage bill in 2013: “I’ll be honest. I was absolutely bricking it.”

Davidson met her partner, Jen Wilson, in 2014. The couple got engaged this year on holiday in Paris, just after the May election campaign. Wilson, who is 34 and from County Wexford, Ireland, works in the charity sector. In 2015, she appeared with Davidson in a party political broadcast, which showed the couple strolling along Elie Harbour, Fife, and taking selfies with Davidson’s parents. It wasn’t a big deal and yet, at the same time, it felt significant. As Davidson noted in her speech, homosexuality was still a prosecutable offence in Scotland in the year she was born (it was not decriminalised north of the border until 1980).

After the event, I met her for a drink with members of her team at the bar of her hotel. She had returned to Edinburgh from a holiday in Spain in the early hours of that morning, shortly before boarding a plane to Belfast for a full day of engagements. Yet she bristled with energy, giving the illusion of movement even when she was sitting still, her attention distributed between emails on her phone, the conversation at the table and the level of everyone’s drinks. She had enjoyed the event, she said, although she had been hoping for more argument.

In September, we met again for a longer conversation in her small office at Holyrood. In person, she is friendly in a businesslike way, mentally fast (often starting her response before the question is finished) and generous with her answers. As she talks, her eyes fix you in your seat. “Ruth is a brilliant reader of people, including our opponents, and spots weaknesses very early,” her colleague Adam Tomkins told me. “She can see through me. I would hate to play poker with her.”

Before our meeting, I watched First Minister’s Questions, the first after the summer recess. The atmosphere in the chamber at Holyrood is very different from that in the Commons: quieter, less theatrical. The leaders of the main parties are not cheered to their seat. Sturgeon, dressed in black, walked to her desk at the front of the hall, unacknowledged by her colleagues, as a cabinet secretary answered a question on national parks. Davidson entered shortly afterwards, in a violently pink jacket that contrasted vividly with the muted tones preferred by most MSPs.

In the chamber, Davidson often holds her own against the First Minister. The two have contrasting styles: Sturgeon poised and coolly effective, Davidson a study in controlled fury. “Ruth has a real aggression to her,” says the journalist Kenny Farquharson, a columnist for the Times in Scotland. “She’s always looking for the next fight.”

 

*****

Ruth Elizabeth Davidson was born at the Simpson Memorial Maternity Pavilion in Edinburgh in 1978, the second of two daughters to Douglas and Elizabeth Davidson. Her family lived in Selkirk, where her father worked at the wool mill. This was Douglas’s second career: his first had been as a professional footballer, for Partick Thistle and Selkirk FC. The Davidsons moved to Fife when Ruth was a child, after the mill closed. Her parents were Tory voters, without being especially political.

When Ruth Davidson was five years old, she was run over by a truck near her home and nearly killed. The accident shattered her leg, fractured her pelvis and severed her femoral artery, leading to a huge loss of blood. In interviews, she makes quick work of what other politicians might be tempted to craft into a narrative turning point. “My legs are still a bit squint . . . but it has never really stopped me from doing anything,” she told the Scotsman in 2012.

Her family was Presbyterian, in the Church of Scotland, a more austere and morally fiery tradition than Anglicanism. (A Scottish journalist remarked to me, “To us, Anglicanism is Christianity with all the fibre removed.”) Davidson is a practising Christian. Her piety does not extend to abstention from alcohol or profanity – she is a world-class swearer – but it is manifest in her moral muscularity, preacher-like cadences and horror of malingering.

In Fife, Davidson attended Buckhaven High School, a large comprehensive with a working-class intake. She is often referred to as working class, which isn’t quite right. Her mother and father were working-class Glaswegians. Her mother left school at 15, her father at 16. Douglas grew up on an estate in Castlemilk, a district then infamous for its deprivation and crime. He was one of the few Protestants in a solidly Catholic community, during a time of deep divisions.

The Davidsons, however, were upwardly mobile. Douglas had been a manager at the mill in Selkirk and then ran a whisky distillery on the Isle of Arran. The children had the importance of effort and self-improvement drummed into them. Ruth has recalled getting a school report that gave her a 1 for results in science – the best possible mark – and a 2 for effort. “I got a mini-bollocking for that. My mum would have been much happier if it had been the other way round.” Both children attended university (Ruth’s sister is now a doctor).

Davidson did well at school and excelled at sport. She played squash for her county and tennis to a level at which she can teach it. In adulthood, she took up kick-boxing, condemning herself to be forever tagged as a “kick-boxing lesbian” in the British press. Sport has been central in her life, not so much a leisure activity as a method of striving for new goals.

After graduating from Edinburgh University, where she studied English literature and took part in debating competitions, ­Davidson moved to Glasgow and started a career in journalism. In 2002 she joined BBC Scotland, becoming a radio presenter on a drive-time show, reporting on gifted pets one minute and traffic disasters the next. By all accounts, she was excellent: fluent, well prepared, interested in whomever she was talking to. Her producer Pat Stevenson remembers her as “a fantastic interviewer, incisive and forensic, able to spot bullshit a mile off. And she was fun.” Her abiding image of Davidson at the microphone is of a head thrown back in laughter.

Stevenson recalls being vaguely aware that Davidson held right-of-centre views, though these were less of a talking point with her BBC colleagues than her Christianity, or, even more so, her weekends spent deep in a forest, being shouted at while trying to read a map. Davidson served as a signaller in the Territorial Army for three years from 2003 and trained to be an officer. “It was very tough,” says Steve Bargeton, who oversaw the officers’ course. “Most fail or drop out, but Ruth flew through. She had tremendous character.” Davidson won a place at Sandhurst but broke her back during a training exercise, forcing her to end her military career.

She soon set herself a new goal: to be elected to parliament by the time she was 40. In 2009, she left the BBC and joined the Tory party. Davidson has attributed her career change to David Cameron’s call, after the MPs’ expenses scandal, for people who had never been political to get involved, but it is likely she had already decided that politics was the next hill to climb. Either way, she quickly acquired influential sponsors in Edinburgh and London. By the 2010 election, she was head of the private office of Annabel Goldie, the then leader of the Scottish Tories. She stood for an unwinnable Commons seat in Glasgow, twice, both times winning barely 5 per cent of the vote.

Even as the elections to Holyrood came around in May 2011, she was not expected to make it to parliament. She was second on Glasgow’s regional list, which all but ruled her out. A couple of months before the vote, however, the candidate at the top of the list was removed following allegations of past financial problems. The Conservative Party chairman promptly promoted Davidson, who was elected to Holyrood (she won a constituency seat of her own this year in Edinburgh, where she now lives).

In the 2011 election, the SNP, under Alex Salmond, won an unprecedented overall majority in Holyrood. This success transformed the politics of Scotland, and thus that of the UK. Labour’s grip on the votes of working-class Scots was broken. The Conservative Party, already a corpse, failed to twitch. It at once became clear that Salmond had won a mandate for a referendum on independence and that this would be the defining question of Scottish politics until it was resolved.

On the Monday after the election, Annabel Goldie announced that she was resigning. Four days after her election to the Scottish Parliament, Davidson began to consider a run at the leadership of her party. She was encouraged by senior figures, including David Mundell (then a Scotland Office minister, now the Scottish party’s sole MP in Westminster) and David Cameron. In her way stood the Scottish Tories’ deputy leader, Murdo Fraser, an Edinburgh-based lawyer who had been a Conservative activist for a quarter of a century. It was, by common consent, his turn.

Fraser, sensing a threat, committed to an act of excessive radicalism that proved to be his undoing: he proposed that the party ditch the name “Conservative” and break entirely from its southern counterpart. He argued that this measure (Alex Massie, writing in the Spectator, called it the euthanasia option) was the only way to move on from the past and compete with the SNP as a truly Scottish party. He did not recommend a new name; mooted alternatives included the Scottish Reform Party, the Caledonians and Scotland First.

Fraser’s gambit propelled Davidson into the race. She felt that his proposal would unmoor the Scottish Conservatives from their purpose, and also that it was politically naive, as there was little chance that voters would not realise that this was the same party in different clothes. In tactical terms, Fraser had opened up space for a candidate to run on preserving the status quo, rarely an unpopular position among Tories. For his challenger, it was a ripe alignment of conviction and opportunity, a ball bouncing into the perfect position for a killer forehand. Davidson declared on 4 September 2011 and won the final round against Fraser, 55 per cent to 45 per cent. She was 32.

 

****

It is easy to underestimate how much politics, in opposition, is simply about getting noticed. When Davidson became leader, Scottish politics was a (rather one-sided) battle between the SNP and Labour. She needed to fight her way to centre stage and into the calculations of voters – there wasn’t much point repositioning the Tory brand if nobody was watching. As Andrew Cooper put it to me, “You didn’t get to the toxic problem until you dealt with the irrelevant problem.”

Davidson excels at getting noticed. She has – even if she would not appreciate the comparison – a Donald Trump-like understanding of how to get and keep attention. She is at home on social media, something that is true of all the Scottish party leaders, though Davidson’s tweets are the most fearless and funny. She is also an artist of the photo opportunity: here she is in a pink scarf, bestriding the gun of a tank, a Union flag fluttering in the background; playing the bagpipes, or being played by them, eyes popping out of her head; smashing a football into the back of the net.

Such photos do more than get attention. They reinforce the sense of a person unintimidated by the rules of political protocol; indeed, of someone who scorns limitations. There is something almost cartoonish about Davidson’s public profile: the big eyes, the flashing grin, the unstoppable, barrelling walk. In debates, as she winds up to a clinching point, you can, if you half close your eyes, see her swinging her arm through a hundred revolutions before extending it across the stage to smack an opponent. She is one of us, and not like us at all. Flattened by a truck, she gets up and walks away.

Davidson’s willingness to play the fool wouldn’t work if she was not able to convey seriousness at the same time. The leadership race set the template for her political profile as an untraditional traditionalist. Davidson doesn’t look or talk like a typical Tory, but her ideological touchstones are profoundly Conservative. She is a British patriot, a churchgoer, a passionate supporter of the armed forces, an advocate for marriage, a believer in self-reliance. On becoming leader, she set about reviving a type of blue-collar Conservatism not seen since the 1980s. The former Scottish Tory MP Sir Teddy Taylor coined the expression “tenement Tories”: working-class voters with conservative instincts, sceptical of high taxes, patriotic but not nationalist. Davidson, the daughter of tenement Tories, is able to pitch herself as one of them.

To do so has required performing a balancing act with respect to her party in Westminster. She admired Cameron and, politically speaking, was in his debt. Her leadership is staked on the unity of the Scottish and English branches of the party. Yet she has managed, somehow, to position herself against the party’s privileged English elite – the “private-school boys”. Her evident animus against Boris Johnson is both strategic and personal. During the EU campaign, as the polls tightened, she asked Downing Street if it wanted her to go on a “suicide mission” against Johnson, a senior aide to the former prime minister says.

 

****

In Ruth Davidson’s first year as leader, her inexperience showed. She made a prolonged and embarrassing climbdown from a foolhardy promise, made during the leadership campaign, to draw a “line in the sand” against further devolution. Meanwhile, Alex Salmond, a skilled and pitiless debater, successfully patronised her every week at First Minister’s Questions. An impression that she had been promoted prematurely was discreetly given credence by members of her own party (most Scottish Tory MSPs had voted for Fraser).

Davidson was learning not only how to be a leader in public, but how to manage an organisation, a skill for which journalism had not prepared her. A rule change that came into effect when she took over gave her far-reaching powers over the party. As she says, she suddenly found herself responsible for MSPs, staff and activists, but with “no idea how to manage”. She fell back on her training in the Territorial Army. “I had to apply what I learned about leadership in the British army. The toolkit I used was from officer training: how to identify problems, make decisions, bring people with you.”

At Wembley this summer, debating national security, Davidson remarked icily, “I think I’m the only one on this panel who’s ever worn the Queen’s uniform.” Her TA training provides her with a rhetorical trump card and legitimises photo opportunities on tanks, but it does more for her than that. Military metaphors pervade her thinking and fire her imagination. One of her favourite books is Defeat into Victory, an account of the Allied forces campaign in Burma in the Second World War, by William Slim, a British field marshal. “It is the best examination of leadership you’ll ever find,” she told me, and then related, excitedly, an encounter she once had with a Second World War veteran who had witnessed Slim addressing his troops.

After getting heard, Davidson’s most urgent task as leader was to overhaul a demoralised and moribund institution. She focused on candidate recruitment – looking for better signallers. “I wanted to rebuild around the message carriers,” Davidson told me. After their run of bad elections, the Tories had stopped trying to pick winners: “They were asking good, hard-working foot soldiers to stand, just to get a name on the ballot.” Long-standing members would be asked to put their name down and reassured that they wouldn’t have to do anything, and so, by and large, they didn’t.

Davidson put together a new candidates’ board: a former human resources director for Royal Mail, a QC who had been a world champion debater, an expert in corporate leadership. She designed a series of tests based on the officer assessment test that she underwent before Sandhurst (“minus the assault course and press-ups”).

Applicants were asked to sit around a ­table with three others, each with a piece of paper in front of them. When they turned it over, they discovered who they were and what they needed to solve. A new policy was about to affect voters in four neighbouring constituencies, but in different ways: it would be detrimental to those in the first constituency, neutral for those in the second and third and advantageous for those in the fourth. Each candidate represented a different constituency. How would they agree a position?

“It was about making people interact in a way they hadn’t before,” Davidson said. “I made every sitting MSP go through it, including myself.” Her aim was to assemble a team of experts, from business, law, the armed forces and the third sector.

Among her recruits was Adam Tomkins, a professor of public law at Glasgow University, now an MSP and one of Davidson’s closest allies. “By late 2011, it was clear the referendum was coming. I wasn’t involved in party politics but I was a strong believer in the Union and I knew I wanted to do something. I wasn’t a Tory, though. In fact, I had been pretty hostile to them.” He offered his expertise to Labour but came away from meetings with the party’s leaders depressed by their tribalism. Davidson was different: intellectually curious, open-minded, eager to take advice. In 2013, she formally asked him to help the Tories formulate a constitutional policy and he agreed. On New Year’s Day 2014, he joined the Conservatives.

The Scottish independence referendum was the making of Davidson as a national leader, as it was of Nicola Sturgeon, who escaped Salmond’s shadow to become a force in her own right. In TV debates during the campaign, Davidson was the most compelling defender of the Union, capable of winning sympathy for even its most unpopular ingredients. “Ruth emerged as someone who could defend Trident and get applause,” says the journalist David Torrance.

After the referendum in September 2014, she once again had to battle for attention. She needed to convince the media that the Conservatives might yet play a big role at Holyrood – that she was more than an amusing sideshow. The referendum had shown her how decayed Labour’s relationship was with its own voters, and this gave her renewed impetus. She also grasped that, far from enabling Scottish politics to move on from independence, the referendum was still having the opposite effect.

In September 2015 the new Scottish Labour leader, Kezia Dugdale, announced that Labour MSPs would have a free vote on independence in the event of another referendum. In April 2016, she committed to an increase in the top rate of income tax. Together, the two moves were an attempt to move past the issue of independence. “I want people who voted both Yes and No to see that the Labour Party is the vehicle for progressive change in this country,” she said. Yet Dugdale misjudged the relentlessly centrifugal dynamic of Scottish politics after the referendum. Every policy position – from tax rates to tuition fees – returned to the question of what it signalled about Scotland’s relationship with England.

Davidson understood that if Labour was softening its position on the Union, she need only harden and amplify hers. At this year’s Holyrood election, she presented herself not as an alternative first minister, but as the most forceful voice of opposition to Sturgeon. In the campaign debates, she demonstrated it. By doing so, she was able to convince enough pro-Union Labour voters to defect to achieve second place.

For someone who is still relatively new to politics, Davidson has well-tuned strategic instincts. When I asked Tomkins what she excels at, he said: “Her framework is politics, not policy as such. She is brilliant at tactics, messaging, strategy.”

Davidson seems to have developed a serious interest in politics only as an adult, and then only because she thought that it presented a worthy challenge for her abilities (by contrast, most of the leading Scottish Nationalists joined the SNP before they were 18). A little like David Cameron, she just thought that she would be good at it. When I asked her to name her political heroes, or politicians whom she particularly admired, she struggled to come up with any from real life, naming Thomas More in A Man for All Seasons, Shakespeare’s Henry V and Atticus Finch in To Kill a Mockingbird. She wasn’t being coy – it’s just that, like most people, she has never looked to politics for role models. With prompting, she eventually named Peter Mandelson, for his part in making the Labour Party electable again, and William Hague, for his work on women’s rights while foreign secretary.

This lack of political nerdery is part of what makes her able to connect so directly with voters, but it is also a limitation. A consistent criticism of Davidson, even among those who admire her, is that she is not interested in policy, or at least that she does not have a set of distinctive policy ideas. This isn’t quite fair – she has published a paper on education and successfully focused attention on the attainment gap between poor and middle-class students. But she has not yet committed to a detailed alternative (a school vouchers policy was raised and then quietly dropped). Other than “maintain the Union”, it is difficult to know what a Davidson-led government would do.

The word everyone uses about her is “authentic”; like Sturgeon, she projects comfort in her own skin. But in a sense Davidson is a lucky politician, as well as a precociously accomplished one. It is much easier to be yourself in politics when what you believe matches so neatly with what you need to do to win. Her decision to present herself in the Holyrood elections as an effective opponent, rather than an alternative first minister, was tactically smart, but it raised a larger question. As one observer put it to me, “We know what she’s against. But what is Ruth Davidson for?”

 

*****

On 12 July, the day after it became clear that Theresa May would be the new Conservative leader, Davidson spoke at a Press Gallery lunch in Westminster and delivered what was, in essence, a stand-up comedy set. Even by her standards, it was indiscreet. On the difference between the Tories’ truncated leadership contest and Labour’s lengthy deliberation, she remarked: “Labour’s still fumbling with its flies while the Tories are enjoying a post-coital cigarette after withdrawing our massive Johnson.”

It is difficult to say it without sounding like a stick in the mud, but to me this routine felt misjudged. Political leaders can be funny but not that funny – not without compromising our sense of their stability. Nor was it wise to be so rude. Johnson is in the same party as she is, after all, and may yet become leader (nobody, possibly least of all Davidson, is sure what she would have done had Johnson succeeded Cameron). Like many funny people, Davidson metabolises anger into humour and I suspect that, after Brexit, her anger was surging.

It wasn’t just that she thought the decision was profoundly wrong, or that she was contemptuous of Leave’s tactics. It was also that she was being forced to rethink her future. If Remain had won, the chance of another independence referendum may well have receded, allowing Scottish politics to normalise. The SNP would have found it harder to present itself as being simultaneously in office and opposition. Davidson could have embarked on the last stage of the Scottish Tory recovery: making it an alternative government. She might even have considered the option of taking a Westminster seat – after which, who knows?

The vote in favour of Brexit knocked all of this on the head. It put independence firmly back on the agenda. Instead of either disappearing or becoming imminent, the prospect of a second referendum will squat in the middle distance of Scottish politics for years to come. In a sense, this is convenient for Davidson, because she will remain the strongest voice on one side of the only real issue in town. She can make further inroads into the heartlands of a Labour Party that, at a UK-wide level, is strangling itself to death, while picking up SNP voters who lose patience with Sturgeon when she blames every problem with the National Health Service or schools on London.

Theresa May is not nearly so good a bogeyman for Sturgeon as Cameron was. Davidson gets on well with her despite some stylistic differences. Both are observant Christians and care about their duties to the Tory flock. When May came to Scotland to meet Sturgeon in the week after she became Prime Minister, she also attended a meeting of local Conservative members, which Davidson greatly appreciated (Cameron wouldn’t have done such a thing). Davidson has not, as May has, marinated for years in local Tory association meetings but she takes her responsibility to the membership seriously, in the manner of a general concerned with the troops’ morale.

Yet a referendum that is always two years away is one that she can never win or lose. It is hard for her to come up with distinctive ideas when there is little point devoting effort to envisioning a policy agenda that will be distorted through the prism of independence. Given the odds that she overcame to take her party to where it is now, nobody should dismiss the chance that she might one day become first minister. But Scottish politics is defined by long periods of single-party hegemony and the SNP under Sturgeon may well have just started its turn.

Then there is the option of running for a (Scottish) seat in Westminster. Davidson says that she has no interest in swapping Edinburgh for London, either politically or personally, and I believe her. Yet there may come a point at which she is forced to confront the possibility that this is the only way to escape a career in permanent opposition. She might also come to see it as the best way to defend the Union. Sturgeon has suggested that there is no longer any such thing as British politics. What a rebuke it could be to that idea to have one of Scotland’s most popular politicians in the cabinet at Westminster, or, indeed, in 10 Downing Street (a possibility hardly less plausible than Davidson’s elevation to first minister). On the other hand, Davidson may leave politics altogether. She was strikingly keen to emphasise, in our interview, that at some point she will seek an entirely new challenge.

We like to think that the best politicians will somehow find their way to power – that talent will rise to its appropriate level. But Davidson has only two paths to high office open to her: becoming first minister, or quitting Edinburgh for Westminster. Both are exceedingly steep. If she cannot or will not take either, in decades to come she may be remembered as we now recall her performance at Wembley: a firework show, lighting up the landscape without changing it.

Ian Leslie’s “Curious: the Desire to Know and Why Your Future Depends on It” is published by Quercus. Twitter: @mrianleslie

Ian Leslie is a writer, author of CURIOUS: The Desire to Know and Why Your Future Depends On It, and writer/presenter of BBC R4's Before They Were Famous.

This article first appeared in the 29 September 2016 issue of the New Statesman, May’s new Tories