Successful Sexy Succession

…or giving un-sexy law some much needed attention.


At the start of the 5th Scottish Parliament, there is an air of a new start for the 9-year-old SNP administration. Reforming the Scottish Education system (with an increase in the school age being suggested by some) and re-shaping the NHS in Scotland with mental health provision becoming a more integral part of the service. These are big, important policy areas. They graces pages and pages of the various parties’ manifestos over the Spring. They are sexy law.

New nurses are sexy. More teachers is sexy. You can have big debates about class sizes and waiting times and what they are or should be. Police numbers and how big thir guns are are sexy. People know what these areas are. We have all, more-or-less, come into contact with them all at some point. They have grand theories about them. There are entire professions dedicated to the School, Police and Health services across the world. They educate people; they protect people; the make people better. The people are sexy – so the system is sexy – so the political and legal debate is sexy.

Dead People are not sexy. Succession is not sexy at all.

If you were to die tomorrow…what would happen. This isn’t some spiritual examination, I talk much more materially. Your money, your house, your stuff…where does it go? It as been a constant source of worry and amazement to me just how few people know the answer to this question. But then I think about it – and I understand why.

Say, Mr Person, you died tomorrow with the convenient (post-IHT) sum of £250,000 in your Bank Account, a house worth £500,000 and £29,000 of furniture in that house. Quite a specific value of furniture you may think, but bear with me. Who gets it, furniture et al? Your spouse? Your kids? If only you’d gotten round to writing that will…but you never did.

Well, it depends. If you are married (or civilly-partnered) then your spouse automatically allows let us consider from the simplest to the most complex:

If you only have kids, then its simple. Your kids (equally among them) will divide the value of the estate between them and that’s that. How they divide it is up to them – but so long as it’s evenly split, then there are no issues.

But, if you have a spouse it’s not as straight forward. You see, ask the ‘reasonable man’ on the street who gets your stuff when you die – 99% of people would say, “your wife/husband”. However, this is not automatically true. There is a list, in the Succession (Scotland) Act 1964 s.2, that tells you the people who get your stuff when you die. You start at the top of your list and, if no-one in that ‘class’ of people exists, you move down. The list is this:

  1. Children
  2. Parents and Siblings
  3. Siblings
  4. Parents
  5. Spouse
  6. Aunts and Uncles
  7. Grandparents
  8. Siblings of Grandparents
  9. Great-Grandparents
  10. Siblings of Great-Grandparents
  11. Great-Great Grandparents
  12. Siblings of Great-Grea…etc etc…turtles all the way up.

So really – your Spouse isn’t even a factor in this list until you have no children, siblings or parents. Would you have guessed that? Chances are, probably not. Children, maybe, but parents? Siblings? Parents and siblings? But even then IT’S STILL NOT OVER!

Because your spouse does rights to your estate, prior rights. Literally, they are called Prior Rights. Before we get to the List of Succession, your spouse is entitled – but by no means compelled – to a certain value of your estate. They are entitled to:

  • your interest (usually ownership) in your dwelling house (if they lived in it with you) if it is worth £473,000 or less. If it is worth more, the financial equivalent of £473,000.
  • £29,000 worth of furniture and plenishings in one house – and only that house.

They also have a further financial claim on the estate, but that  depends on whether you have children or not:

  • If there are children, they can claim £50,000.
  • If there are no children £89,000.

So…where are we now:

  • Your house is worth more than £473,000, so that means it doesn’t automatically pass to your spouse. Instead, they would gather a financial claim instead.
  • Even though they can’t get the house, they can still get the £29,000 furniture – so that’s that simple.
  • Finally, they get the £89,000 since you have no kids.
  • So, in the end, there’s a £562,000 financial claim and £29,000 furniture to the spouse and a £89,000 financial claim. Simple right…

…NO! Because see that Financial claim at the end…that’s not just cold hard cash. that claim is divided, proportionately, between the heritable (houses and land) and moveable (everything else) property in the Estate. So – in this case – that means 53.8% (£47,901) comes form the house and 46.2% (£41,099) from the bank account.
So when you add all that together, your wife can claim a total of £520,901 against the movable estate (so can take the house after all) and then can claim a total of £41,099 cash – and that all important £29,000 furniture.

So with the house spoken for – what about the remaining moveables, money and furniture. We finally get to the list above right. If you have children they get it…but you don’t, so your parents get it…but they’re dead, so your siblings would get it…yes, that means that sister you never loved and haven’t spoken to for years and ruined your wedding. It’s not pleasant, certainly, but it’s at least a conclusion…right…

NO! There is another set of rights that come into play before we get to the list…Legal Rights. They come after Prior Rights – but before the list.

Under Legal rights, your spouse has a further claim to your estate (the jus relicti for your husband and jus relictae for your wife), as do your children (the legitum) if there are any. If you are married, but have no children; or if you have children, but no spouse, then all your children may share in one-half of your moveable Estate. If you have both a surviving spouse and surviving children, then each is entitled to share in 1/3rd of the estate (1/3 to the spouse and 1/3rd among the children)[1]. So where does that leave us:

  • Well, after the Spouses prior rights have been dealt with, you have £359,001 of moveables (money) left. We’ve said you have no kids. That means we divide that into 2 halves of £179,500.50 each.
  • 1/2 goes to the spouse.
  • And you have 1/2 left over…

…Which THEN (and only then follows the list)…and ends up in the pocket of that sister that thought your Engagement Party was the best time to announce her divorce.

So…in the end of it all:

  • Spouse: The House, The furniture, and £220,599.50 of the cash.
  • The Sister who decided your son’s birth wasn’t as important as her dog’s pedicure: £179,500.50.

Isn’t that wonderful…and it only took us 1,200odd words to get there.

This isn’t an outliner case. This is completely possible. And this scenario could throw up real problems. What if you had 2 kids? That would mean your Spouse could only claim £499,000 against the house – £1,000 short? The rest would pass to the kids, which is fine if you live in a happy family that loves each other. But what if the kids of your first marriage loathe the souse from your second and they don’t play ball…that can lead to difficult and unsavoury conversations.

If only you had written a will. That would solve all the problems…right?

Well, dear reader, as you may have come to expect, the answer is no! Prior Rights wouldn’t apply any more – meaning that your house is yours to deal with as you please – but Legal Rights would still apply, so your kids if you had had any (who, for all I now, might have prompted you to write a will purely to write them out of it) could still share 1/3rd the £500,000 cash and, to make bad news worse, £29,000 worth of furniture.

What I’ve tried to show here is that Succession Law, particularly when someone dies and hasn’t left a will, is messy and confusing. But, more than that, people don’t know what will happen to their belongings after they die. How many people would have guessed that the goldfish-murdering sister would have got any of our stuff when you died? Who would have thought that kids from your first marriage could theoretically own part of your house you and your new beloved bought together. Who actually has a clue what is going on.

Succession Law is not sexy…but it is important and it is a mess. It needs to be reformed and simplified.[2] Lets start at the beginning of this Parliament, so that, maybe, we can figure out what we want by the end.


 

[1] This fact, that kids who you specifically wrote out of your will could still inherit something anyway prompted him to come up with a scenario in which he would have kids, write them out his will, fall out with them, then, in his later years, re-connect with them and have a few good years together and convince them, when he was on his death-bed, to help him commit suicide so it satisfied the definition of murder – so would then make them dishonourable heirs so they could not inherit – purely so he could find a way to get round this rule.

[2] I am not one of those “something must be done but do not ask me what” types. I once, as a side-project in my 1st Year of my LL.B attempted to re-write the Succession (Scotland) Act. Unfortunately, my efforts have been lost to a corrupted, un-backed-up hard drive.

 

#DefendLegalAid

I have spoken a few times before about how important I know Legal Aid is to people. I have no intention, at the moment, to retread that ground.

I have spoken also, about the cuts made to tLegal Aid and how much more difficult it will make Access to Justice for those mos tin need of it.

That’s why today, I’m very proud that the Law Society of Scotland has launched its #DefendLegalAid campaign.

I hope that Lawyers form all across Scotland, and politicians from all parties, can get behind this campaign, work to fix the Legal Aid System in Scotland, and ensure that we protect Access to Justice for those in the country who need it most.

 

Tax can be Taxing…

…or an empirical study in the use of tax as a behaviour modifier.


I work in a high street law firm and, like most high street law firms, it does the classic ‘little bit of everything’. Criminal Law, Kids, divorce, executry (dead people), civil law, leases – we do it all. We also do a fair amount of conveyancing. {1}

Conveyancing is the buying and selling of houses. In Scotland, only Solicitors can do that. Estate Agents can market houses, and you can arrange your own private sale, but at some point, a solicitors is involved in the missives, the settlement, the mortgage and the Registration of the new Title. They have to be. it’s the law. In my own experience at the firm, I can do the odd thing, but when it comes to the key points – the solicitor steps in a signs their name on the line.

But, being heavily involved in my firm’s conveyancing department – I’ve developed a strange enjoyment of it and, if I may, I’m pretty good at it. I know what needs to be done during the process. But it doesn’t end for me when it ends for the client. You may get the keys, but there is still work to do behind the scenes.
Your new title needs to be registered to give it effect. Your Mortgage (which is an English Law work we’ve imported into Scotland) needs to be registered for the bank. And, whether you know it or not, you have to pay your tax.
Up until April 2015, when a house was bought in the UK, you had to complete a Stamp Duty Land Tax (SDLT) return. Most people paid no or little tax, but a return had to be done. After April 2015, Land Tax in Scotland was devolved (under the Scotland Act 2012) and the Scottish Government decided to change the regime completely and created the Land & Building Transaction Tax (LBTT) to replace the old Stamp Duty Scheme.

Most people will buy or sell a house. Most people, however, don’t pay this tax. Houses under £145,000 are taxed at 0%. Most people don’t even notice. But a return still has to be done. However, in two weeks’ time, there will be a small but significant change made to the regime – the 3% LBTT Surcharge.
While it has been discussed since the end of last year, the law was only changed last week to bring in this change. Now, if you buy a house and, thanks to that purchase, you own two houses, you have to pay a 3% addition tax on the property. {2}
The thing is though, this only applies to purchases on or after the 1st April 2016…and, as I mentioned, these tax changes have been known about (more or less) since December. So, the savvy buyer spotted, as I’m sure you have, a way round this…buy before the 1st of April. This is the issue.

In the next 2 weeks, my firm has 13 settlements. For a relatively small high street firm – that’s a lot. A lot of reports and mortgages and deeds and letters and phone calls and factors and post. In the mad rush trying to beat the 3% Tax, people who know their way about the system, are getting in quick. Those who maybe have a 2nd house on the side for rental income, but don’t make a living off of it, are most likely to lose out.
This has led to a log-jam of sales happening on the 24th, 29th, 30th and 31st March. because there are so many sales, services conveyancers need ready access to have been busy too. It’s created a more stressful situation (and messier desks) for conveyancers than usual – and the sector is not a stress free one to begin with. You are more likely to complain about your house sale than your prison sentence.
It seems odd, I know, to ask for pity for lawyers, but every conveyancer on the other end of the phone I have spoken to has said similar things. It’s become a “top trumps” kind of thing. {3}

What then, is the solution?

When the Chancellor of the Exchequer gives the UK Budget speech, there are always a few minutes of business before the Leader of the Opposition responds. During this time when (inevitable) Andrew Neil chats to John Curtice about something-or-other, a series of votes are taken on raises on alcohol and tobacco duties that will take effect from 6pm that evening. Most people work 9am until 5pm – so there’s very little chance of stockpiling to avoid the rises and, therefore, fewer long queues at the supermarkets.
Could this work for future LBTT changes? Instead of having a 2/3 month long “you know it’s coming” period, could we change to a “too late! It’s already here, manoeuvre”? I picture it working something like this:

  • During the Scottish Budget, the Finance Secretary announces the LBTT increase.
  • Immediately after the speech, there are votes on that increase, laid before the Scottish Parliament by Scottish Statutory Instrument.
  • Any missives entered into prior to 5pm on that day avoid the increase in tax.
  • Any missives entered into after 5pm that day are subject to the increased tax.
  • You pay the lowest rate of tax that applied during the time while missives were being negotiated. {4}

This means that, at most, the “in between times” last for 5 hours and actually allows more transactions to, potentially, be caught by the increase in tax. Winners all round. There are no last minute rushes to pull everything together and it makes for happy buyers, sellers, and (most of all) lawyers!
Infrastructure-wise, most LBTT returns are made on-line, and the system asks when missives were concluded (for a reason I have still not ascertained). It would not be difficult to amend the data entry (while, hopefully, improving the usability of the system overall) to take account of the reduced cross-over period where the date the offer was submitted is a factor.

This proposal suggests a small improvement. A slight one  – but one that would make a real difference to the Legal profession and to buyers and sellers of property in Scotland too. It would need a legal framework to allow the changes to be passed quickly, and also changes to the on-line LBTT system, but there is no reason why with careful planning, this mad rush at the end of the month couldn’t be avoided, and we could have a better system in place.


{1} It continues to come as a surprise to me, and this may be the effect of 5 years studying Law, the number of people I have to say, “I do a lot of conveyancing…[blank face]…buying and selling houses”. Is the term not widely known outside the legal profession?

{2} This is a very potted version of the tax. There are  number of other consideration, but in most circumstances, this rule can be applied and the outcome is correct. If you’re really interested, you can read the Revenue Scotland Guidance to get the full picture.

{3} One solicitor told me he has 21 transactions settling on the 30th and 31st March!

{4} This rule needs to apply for a technical reason. Say you put an offer in the day before Scottish Budget Day and the rate of tax was decreased as opposed to increased. There would be an incentive to withdraw from the sale/purchase, then resubmit the offer again to benefit from the lower rate of tax. At the start of the transaction this isn’t such a big problem – but if it was the week, or even the day, before the transaction (and the tax gain was large enough) there are a whole new bunch of problems this could create, particularly for those getting mortgages.

State Aid for Private Prosecution

The Glasgow Bin Lorry case continued to march on this week as Michael Matheson, the Scottish Justice Secretary, announced that Legal Aid would be provided for the families seeking to bring a private prosecution against the driver, Harry Clarke.

I don’t think the private prosecution will succeed, but I don’t want to swell on the merits of the action itself here. I want to look at the decision to provide state funding to let the families make their case, and specifically, why it is a decision that should raise more questions than it so far has. I might be useful to have Matheson’s statement to refer to:

“Private prosecutions are, and should remain, exceptionally rare in Scotland. However, in light of the unique and special circumstances of this case, which raises fundamental questions that have not previously been tested in case law, Scottish Ministers believe it is in the public interest that all parties are adequately represented.

As such, Ministers have agreed to make legal aid available for the families of the Bin Lorry tragedy.

In line with human rights requirements that anybody facing potential criminal prosecution must be legally represented, legal aid will also be made available to the driver of the bin lorry, Mr Clarke, and to Mr Payne in relation to another potential private prosecution in separate case.

The issue of whether there are exceptional circumstances to justify a private prosecution is a matter for the High Court alone and do not form part of this legal aid decision.

Responsibility for deciding whether or not to prosecute an alleged criminal case in Scotland rests clearly with the Crown Office which has a strong record in prosecuting crime.

The determination is not being made on the basis that Ministers agree that there was any error in law in the decision by the Crown. The Lord Advocate has set out publicly the basis for the decision not to progress a prosecution following the Bin Lorry tragedy.”

In short, the Scottish Ministers have decided agreed that Legal Aid should be made available to the families bringing the private prosecution. They have an ability to do this under s.4(2)(c) of the Legal Aid (Scotland) Act 1986 – though it is unusual, with matters usually being handled by ever solicitor’s favourite body, the Scottish Legal Aid Board.

Matheson states that the reason this extra-ordinary step has been taken is because this of the “unique and special circumstances” of the case, and the fact it asks “fundamental questions” that haven’t previously been raised. My first question would be to ask what are the “special circumstances” and what are the “fundamental questions”?
The jurisprudence behind Private Prosecutions in Scots Law is quite clear with the Carol X  case providing a hand book in itself. In short, there have to be “very special and exceptional circumstances” to allow a private person to bring a prosecution when the Crown has already declined to do so. The prosecution can’t be unfair towards the accused person; must have sufficient evidence and it must be in the public interest to prosecute.
These are considerations Prosecutors in Scotland face delay. Does the case prove? Is it in the public interest? We know, thanks to the Fatal Accident Enquiry that there is nothing the Crown Office didn’t know when it decided not to prosecute that it ought to have known. It seems there are no special circumstances.

What then of “fundamental questions”? The rules for Private Prosecution, as I’ve said, are  not dubious. Whether these particular facts fit into these is a different question, but not one of fundamental judicial importance.
It’s not particularly clear what the victims’ families propose to charge Mr. Clarke with. There can’t be any questions relating to the development of Scots Criminal Law more generally – if only because we don’t know where hey would be coming from.

Unless the Justice Minister chooses to elaborate (and for reasons I’ll discuss in a second, it is unlikely a fellow Member of Parliament will ask him to), we are unlikely to gather any further information from him. So, what could it be?
From the moment the tragedy occurred, it has big news in Scotland. The media and the public have been following the case from the start. When it first became clear that the lorry-driver, Mr. Clarke, had suffered a black out and was not simply reckless, public opinion was firmly behind him. However, when the black-outs were publicly reported as being related to a previously known condition, the public and the press completely reversed. During the FIA, the the right not to incriminate yourself was deemed “170 insults to the dead” and it seemed the only way justice could be done was through prosecution.  The tone was that the Crown office had messed up in deciding not to prosecute and blocking off that possibility – hence the private prosecution.
So, to stand in the way of the Private Prosecution would to deny the families of the dead their day in court. That would not produce happy headlines for the Government only 2 months out from an election.

Matheson makes clear that he isn’t predetermining the case (that is the High Court’s) and that he isn’t seeking to overturn the Lord Advocate’s decision and question the Crown Office. The difficulty going forward, however, is the message this sends out. Given that the idea of private prosecutions is – let’s be honest – pretty new to the zeitgeist, the rules around them are not clear in the public s mind. But now, the government might fund them. Why not give it a go?

The Scottish Legal Aid budget, as I have stated before, is a subject of particular interest to me – as is access to justice more generally. But this year the Scottish Government cut Legal Aid Budget both in real terms and cash terms! Given the strain this will put the system under already, I am not convinced that it is a good use of these public funds to commit – with no clear legal basis for doing so – an undetermined amount of money on a challenge the nature of which is not yet clear, to a decision of the public Crown Office when nothing appears to have changed since that decision was taken.

Nothing, that is, except public opinion.

A Scot on SCOTUS…

…or what may or may not happen and what happens when and if it does.


Antonin Scalia, the most senior Associate Justice on the Supreme Court of the United States (SCOTUS), died this week aged 79. This means two important things:

  1. There is now a seat on the most important Judicial Bench in the world; and
  2. The Judiciary is now a live issue in the US Presidential Election.

The second of these is political – and will depend (theoretically) on the candidates legislative and legal outlooks. But the first raises issues of Constitutional Procedure and legal operation. It also comes the closest America gets to a constitutional convention which may or may not exist, depending on how convenient it’s existence is to the Majority in the Senate.

The Supreme Court and the President

The 3 branches of the US Federal Government (The Legislature; The Executive; and the Judiciary) are established in Article 1, 2 & 3 of the US Constitution respectively. However, despite the US’s love of ‘Separation of Powers’, the President and Congress play a pivotal role in the selection of new Supreme Court Justices.

In the UK, while the Queen appoints new Judges at the Prime (or First) Minister’s recommendation, this is more stuffy Constitutional rules than genuine political process. The reality is that independent judicial appointment committees do the vetting and recommendation. This ensures – as much as it can be – that judges are independent and impartial.
In the US however, the process is explicitly political, with the President and Congress both having key, and invariably politicised, roles to play.

When a spot on the bench opens up, the first step is that the President nominates a person to the Supreme Court. This is his right under Article II, Section 2, Clause 2 the US Constitution which states (in potted terms):

[The President]…shall nominate, and by and with the Advice and Consent of the Senate, shall appoint …Judges of the Supreme Court…

This is usually a high-ranking judge on one of the Courts of Appeal, or other experienced judicial official or legal academic.

While this clause in the Constitution is the only legal rule regarding the President’s power to nominate SCOTUS judges, there is a more flexible political rule in play, the ‘Thurmond Rule’. This stems from the Civil rights says when Senator Thurmond (a Southern segregationist) mounted a campaign to block President Lyndon B. Johnson’s (who signed the Civil Rights Act) US Supreme Court nomination as pay-back. He defined this rule as meaning that no life-time judicial appointments should take place in the latter part of an election year.
This is this that has caused some excitement regarding the appointment of Scalia’s successor. 2016 being an election year, the Republican Majority have attempted to invoke this ‘rule’ (which has no legal standing) to argue Obama should not nominate a successor as the election process is underway. However, while the election will happen on the 10th November 2016 – the winner won’t become the 45th President until January 2017, and with confirmation processes lasting around 2-3 months, this means there could be vacancy on the US’s most important court for over a year! The significance of this is discussed below, but it could well be a political reality, though not a legal requirement.

The Supreme Court and The Senate

Should Obama nominate a candidate, they then face the Senate Judiciary Committee. After (what is almost always) a lengthy testimony, usually spanning days, the committee then vote on whether to recommend the nominee to the Senate or not. A rejection here is not a de jure end to the nomination, but de facto is not a good sign for success, so may lead to a withdrawal and starting the process again.

What really matters is the vote before the Senate. Out of respect for the prestige of the position, a roll call vote is always called. Each Senator states whether they support or oppose the nominee. Theoretically, this only requires 51 votes (a simple majority) and the job is done.
However, especially in these partisan times, the danger is the filibuster. It is possible that, if the opposition is strong enough, the opponents could try and talk out the clock on the nomination process and avoid a vote altogether. Since 2013, most filibusters can be ended by 51 Senators voting to bring it to an end (a “cloture vote”). However, appointments to the Supreme Court are one of the few exceptions, and requires a three-fifths super-majority (60 Senators) to vote in favour.
On the practical level, there are currently 54 Republican Senators and only 46 Democratic-bloc (44 Dems and 2 Dem-voting Independents), meaning that it is virtually impossible for a filibuster to be blocked if it was deployed. This would have political ramifications, as all Congressional actions do, but would be legally doable.

The Supreme Court in the meantime

In the end, if a nomination isn’t made until the next President is sworn in; or the nominee withdraws after the Senate Judiciary Committee; or the Senate rejects him; or his nomination is filibustered out and doesn’t even reach a vote, then there will remain only 8 Justices hearing cases on the Supreme Court – and it’s a key time in US Jurisprudence.

Upcoming cases include cases on voting rights, Union rights and (the most divisive of American topics) abortion. While Scalia was on the court, these cases would be decided and would, most likely, be decided in the conservatives’ favour.
A funny aspect of SCOTUS is, because of the political nature of appointments, is the court is extremely partisan . In most cases, you can predict with 90% certainty that 4 justices will form a liberal bloc (Ginsberg, Breyer, Sotamyor and Kagan) and 4 a conservative one (Scalia, Thomas, Alito and Chief Justice Roberts) with Anthony Kennedy being the swing-vote.
Now Scalia’s seat is vacant, this becomes a 4-3 default, with a swing or 4-4. {1}

If there’s still a majority on the court then, all is well. There is nothing that stops SCOTUS hearing and deciding upon cases with only 8 justices. It is a 4-4 decision which may prove more troubling. There are three consequences to a tie on the bench:

  1. The decision of the court from which the case was heard is upheld.
  2. No precedent is set from the Court.
  3. The same matter may not be re-appealed to the Supreme Court.

In Common Law countries (such as the US), this could lead to legislative-confusion. A No precedent set in key cases, which arise form a particular set of circumstances and haven’t had Supreme Court consideration for years (such as abortion) and it could be some time before they reach the court again. Even if the court agree the matter can be “re-argued”, it can still take months and years before a judgement is rendered.  A no-score could delay the development of much-needed jurisprudence in contentious and vital areas of law.

The ratio

As Toby Zeigler discovered in Season 1 of the West Wing, getting a judge onto the Supreme Court isn’t an easy task. It has multiple steps, numerous obstacles and many pitfalls, which can be terminal to a Presidential legacy…especially one nearing it’s end.

It’s clear that the process of replacing Justice Scalia requires the legal processes, which are clearly defined in the Constitution and show Obama can (and it appears will) nominate a successor, to brush up against the political realities (A Republican Senate, a hung Court, and ongoing Primary election and potentially one of the most polarizing Presidential elections the US has faced in recent times). What will happen is hard to be sure of, but Obama can play it smart, and get either a liberal on the bench, or Republicans to block appointments out of spite.

Either way Scalia, a constitutional textualist who stuck by the words (not the spirit or customs) of the Constitution, would probably agree – Obama can (and arguably must) nominate the (potential) 113th Associate Justice of the Supreme Court of the United States.


An addendum:
There is (of course) another way Obama could appoint a Jsutice to SCOTUS. He could – if he wanted to have fun – wait until the Congress was out of session and just appoint his next Justice. They can only serve until the end of the next session, but it could help solve part of the problem. This is impractical, however, as he would have to wait until around December (after the 2016 Elections – which are looking good for the Democrats so far) and his appointee would have a very limited effect on the actual decisions of the court.
For completeness though, I felt I should add this in.


 

{1} It’s also worth noting that in any cases Scalia heard and voted on, but whose judgements have not yet been handed down, his vote is annulled – potentially creating retrospective ties.

 

Merry Fresh Annum…

…or a Happy New Year and doing something different, without knowing exactly what it is.


 

Firstly, Happy New Year.

Secondly, I now have a new laptop which doesn’t overheat within the hour and force a shut-down, so I hope to pick-up the blogging here now, with a few new case notes coming shortly. I cannot fully express how irritating limited blogging-access was during the Carmichael Case.

Thirdly, my ability to blog again has inspired me to start something and she how it goes. 2016Shanky is a blog I’ve started as a public on-line diary. I have, since I started University attempted to keep a paper diary, but every year, I fail miserably.

I should have kept one last year. The 2015 General Election, the end of University, People I met; Friendships I made; things that happened to me and others; I should have recorded them to look back on. And others to look back on. My kids and grandkids (should I ever have them) could hear stories of me having to ask Eddie Izzard to stop speaking to journalists and get in the car that was waiting for him, while being crowded by angry nationalists.

But I never kept a diary.

Now I will try. It’s a public blog I don’t know how that will affect what I write. I don’t know how those who I interact with will like that – I don’t know if they will care, or read it. But, for the time being at least, I will try it. I might not like it…but we’ll see.

Labour Party Leadership Election 2015

I’ve finally decided how I will be voting in the Labour Leadership contests today. I’ve detailed my votes below.
Obviously my #ShankyForLeader campaign has not been as successful as I had hoped, but I wish my fellow candidates the best of luck in their campaigns.

Leader of the Labour Party

1. Yvette Cooper
2. Andy Burnham
3. Liz Kendall

No Preference: Jeremy Corbyn

Deputy Leader of the Labour Party

1. Tom Watson
2. Stella Creasy
3. Ben Bradshaw
4.
Caroline Flint
5. 
Angela Eagle

Conference Arrangements Committee

Voting for: Michael Cashman; Katy Clark

National Policy Forum (Scotland)

Voting For: Gemma Doyle; Jamie Glackin; Cat Headley; Katrina Murray

National Policy Forum (Scotland Youth)

Voting For: Kate Dearden

Head in the Game…

…or Heart on the sleeve.


“Tony Blair (and Gordon Brown) were the most important left-wing politicians in the UK since the 70’s. Discuss”.

Over my lifetime, I have experienced, in a very real sense two different kinds of UK government. Both have affected real social change across the country, but only one has done it in a way I like. But for some, this wasn’t enough. This is what is at the heart of the Labour Leadership election.

My brother has recently become politicised (thanks to the #IndyRef of all things – he was very strongly Pro-Union) and has taken a great interest in American Politics – mostly, I think, thanks to tumblr. He has recently told us that he supports Bernie Sanders for the Democratic nomination because he has the best policies. I agreed with him, but told him that I wanted Hillary Clinton to win instead. He asked why and I replied, simply, that he wouldn’t stand a chance of winning, but Hillary would. He complained, as many people new to politics do, that I should stick to principles and should vote for who I thought was best, even if it would be harder for them to win.
In some ways, I feel sympathy for this view. Bernie Sanders would be a revolutionary in American terms (if he could get ANYTHING in his platform through a Republican Congress), provided that after winning the nomination, he won the Presidency. Although the disaster hairea that is Donald Trump (who once compared off-shore wind-farms to the Lockerbie Disaster) is leading the Republican field, when faced with a choice between a leftie and oblivion, I’m not convinced that the US would vote to survive.

Which brings us back to the question I’ve set myself. Since the 1970’s the Labour Party has had 6 Leaders that have faced an election: Callaghan, Foot, Kinnock, Blair, Brown and Miliband. Of that list, spanning 50 years, only 1 won a General Election. And out of that list, he is the one spoken of least fondly. Despite leading Labour to its first (and second and third) election victories after years in the wilderness of opposition, should he ever appear, he is hated and questioned. Why?
Iraq aside, which is a millstone around Labour’s collective neck, what did Tony Blair’s (and, let’s be honest, Gordon Brown’s and Co-PM-In-All-But-Name) Labour Party do that marked them out as right-wing. They funded the NHS and cut waiting times. They spent money on schools that was badly needed. They introduced the National Minimum Wage, which so improved the pay of so many people. They created Tax Credits which, while an IT-Nightmare, supported so many people and helped them out of shoestring budgets. All this while devolving to the nations, reforming the Lords – and the minor achievement of brining peace to Northern Ireland.
What he did, it seems, is what he didn’t do. They didn’t fund the NHS enough and dared rely on private investment to build hospitals sooner. They improved schools, but dare experiment with ‘Academies’, which the Tories bastardised to create ‘free-schools’ . They introduced the Minimum Wage, but looking back, it wasn’t that much – despite the opposition (and lack of support from some) at the time. And tax credits were good – but there were still kids that were poor in Drumchapel, even though Child Poverty was at its lowest point ever. And they didn’t devolve enough, and the Lords still exists and the fact there still is a Northern Ireland for peace to be brought to shows the real imperialist intentions. If they were really a Labour party, they would have been much more radical. In short, they bottled it.
But, and the important thing I think, was that they were in power. Tony Blair realised something – that a centre-left Labour government can do more than a far-left Labour opposition. No matter how amazingly redistributive and socially-reforming a Labour Party Manifesto is, it doesn’t matter one bit if we’re not in government at the end of it. We’ve only just had a reminder of this.

When I look at the story of the Labour Leadership contest so far, I worry that we have already forgotten this, and just how terribly frustrating opposition is. As I write, Brian Eno (that committed Labour supporter who voted Lib Dem in 2010) is speaking at a Jeremy Corbyn rally stating that “electability isn’t the most important thing“. What matters is wanting to do good things, not actually getting the chance to do them…apparently. So long as you are ideologically pure, you are fine; but should you temper (not change!) your principles for the niggling purpose of “getting into government” – then you do not belong in the the Labour Movement. If this is our outlook, then I may never see another Labour Government. We shouldn’t give up our goals and aims and principles, but we must convince the voters that they should be put into practice. Not forget who we are in the pursuit of power; but gain power by getting people to look at us.
The halls that Corbyn has packed out; the supporters he has encouraged; the members he has brought; the people he has swayed – how many weren’t already Labour people? How many has he pulled, even from left of the party (the Greens, the various socialists)? The answer, I give with 100% certainty, is not enough.
Cooper, Burnham and Kendall are all members of the Labour Party for exactly the same reason I am, and the same reason Corbyn is: they want to help the poorest and create a fairer, more equal, more socially just Britain. They want a strong NHS, a great education system, and a welfare state that supports the poorest in society. The difference is that they all accept that the public, generally, at large are not socialist. Not in Wales, not in Scotland and definitely not Middle-England. If they cannot support Miliband, they cannot, in the space of 5 years, elect Corbyn. And, quite frankly, I want a Labour government. A Labour Government is not a Tory-lite government. It might not do all you want, but would Brown’s “Red Tory” government have done all the Coalition government did? Would Miliband’s government have done all what the Tories are planning now. If you say yes, you are either lying, disingenuous or a cybernat.

If Corbyn is my Leader come the end of next month – then I will support him to the hilt. I will try and convince people up and down my nation and my country that they should vote Labour in 2020 and make him PM. And will love that campaign because our manifesto will be all I want it to be (and possibly more). It might help us a bit in Scotland (but not as much as people think it would), and I will be able to sleep easy with my conscience clear – but if I wanted to do that I’d have joined the Greens. I will sleep easy, but I will be up all night at the count on 7th May 2020 with a heavy heart as we once again fail to bring the country with us. We return to the opposition benches, once again leaderless, and once again wondering if we just weren’t Labour enough.

I would rather be in power doing some of the things we want, than be in opposition wanting to do something. And that is why Tony Blair (and Gordon Brown) were the most important left-wing politicians in the UK since the 70’s. They did it.


This post has been a long time coming, but was typed today thanks to my reading Stephen Daisley’s Open Letter to Labour. I think Kendall may have the gone too far in the principle/electability trade-off, but it’s an important read. I have not yet decided how I will vote.

ObamaCare Forever (maybe)…

Full Opinion and Dissent

The Supreme Court of the United States (SCOTUS) today handed down their decision in King v Burwell 576 US (2015), that they heard earlier this year. It was the last major challenge to the Affordable Care Act (or ‘ObamaCare’) coming through the court system, and the Justices voted 6-3 to uphold the Act as it was currently in force. And, the decision came down to what the definition of “state” is.

Obamacare didn’t create an US Version of the NHS, but it did make important changes to the American healthcare system. The Act provided that “each State shall…establish an American Health Benefit Exchange” [s.18031] but, they could opt-out of creating a State Exchange, in which case the Federal government “shall…establish and operate such Exchange within the State. [s.18041]”
These exchanges couldn’t turn people away based on pre-existing conditions, but in return everyone in America had to get insurance. This, appears unfairly harsh for the poorest, but the AFA had in it a compensatory mechanism. The poorest people buying Insurance from Government ‘Exchanges’ could get subsidies to help with the cost of healthcare.
It’s important to grasp just how intertwined these three things are – if you remove one strand (either the guaranteed acceptance, compulsory purchase and supported subsidy) then the whole system falls. If people can be knocked back, they can’t buy any healthcare. If people don’t have to have health coverage, they will only buy insurance when they need it, so they system becomes underfunded. And if you remove subsides for the worst-off, they can’t afford insurance, and so they are pushed into poverty to comply with the law.
It is this provision of subsidy which gave rise to the latest case

The AFA states that the subsidies are available to US Citizens who are enrolled in Health Insurance schemes through “an Exchange established by the State…” The question in this case was whether people who enrolled in their Health Insurance through an exchange run by the Federal Government (because the State didn’t create their own) were eligible for the subsidies too. It was, essentially, a question of statutory interpretation.

The SCOTUS Dissenters (Justices Scalia, Thomas and Alito) accepted the argument that the law was written the way it was deliberately, and that the clause must be examined literally. To quote the introduction of Scalia’s (rather forceful) dissent:

The Court holds that when the Patient Protection and Affordable Care Act says “Exchange established by the State” it means “Exchange established by the State or the Federal Government.” That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so. [Page 1; Dissent]

This is exactly what was expected from Justice Scalia. Notwithstanding his being a conservative Justice on the court, he is an ardent adherent to literal interpretation of the Constitution and the law, seeking to look squarely at the words on the page. He gives a sucinct insight to his thought processes on page 2 of his dissent:

In order to receive any money under §36B, an individual must enroll in an insurance plan through an “Exchange established by the State.” The Secretary of Health and Human Services is not a State. So an Exchange established by the Secretary is not an Exchange established by the State—which means people who buy health insurance through such an Exchange get no money under §36B. [Page 2; Dissent]

This, it seems, is the clearest way to deal with the problem. If the law says something, we should give effect to that thing, even if they meant something else. Scalia spends 21 pages justifying this view.¹ Yet, despite these efforts, the majority of the court disagreed.

Instead, the majority argued that, in order to properly understand the law, you had to look beyond the immediate definition of the words. Justice Roberts, delivering the Opinion of the Court, made thrtwoee arguments that the phrase “established by the State” was at least ambiguous. The first was that, even if we were to take a literal approach to the Act, it was clear that there was not meant to be any difference between State-run and Federal-run exchanges. He suggests that when States don’t create an exchange, the Federal must “establish and operate such Exchange” (emphasis added). But saying “such exchange”, he argues that there is no difference between the two kinds of exchange – that Federal Government is merely doing the State’s function. [Page 10; Opinion]
Further, he examines the way the various sections of the Act interact with each other. The Act defines  “Exchange” to mean “an…Exchange established under section 18031″, which means that s.18041 (which establishes the Federal Government’s role in the whole affair), would actually mean that the Federal Government must “establish and operate such an Exchange established under section 18031”.
And, again, by using the words “such Exchange,” the Act indicates that State and Federal Exchanges should be the same. But, as I noted  at the outset, the tax credit subsidy is fundamental to the entire Act. So if tax credits were available only on state-run exchanges, it would go against the fundamental principles of the Act. [Page 12/13; Opinion] This is a far more purposive approach than Scalia’s dissent.
So why, then, did the Act include the phrase “established by the State” in s.18031 if it was so redundant? Why cause raise these questions in the first place? Roberts states that the Act “…contains more than a few examples of inartful drafting.” due the the way it passed through Congress. The Fact the Act was so contentious, required a great deal of compromise and had many, many redrafts led to an imperfect Act which was laden with small and unhelpful inconsistencies. [Page 14; Opinion]

So if the phrase “established by the State” is ambiguous, what should it be taken to mean? Should it have the smaller meaning to be literally “States”, or is there justification for a wider meaning? Roberts argues there is a justification – and it involves looking at the bigger picture. He accepts the argument that it is wrong to view the section in isolation, and it would be just as unhelpful to look at it simply within the context of the subsidising Tax credits, but instead, it must be examined within the entire Act. He states:

While the meaning of the phrase “an Exchange established by the State under [42 U. S. C. §18031]” may seem plain “when viewed in isolation,” such a reading turns out to be “untenable in light of [the statute] as a whole.” {Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 343 (1994).} In this instance, the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase. [Page 20; Opinion]

A contextual approach is plain here, even moreso in the concluding statements in Roberts’ Opinion, where it is clear he had the aims of the Act at heart when seeking to decipher the ambiguous wording:

Th[e] credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid.

and later:

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt. The judgment of the United States Court of [both Page 21; Opinion]

Conclusion

Truth be told, I do harbour some sympathy for Justice Scalia’s literal approach. The phrase “established by the State” does seem to carry a clear and unambiguous meaning – but this only applies when it is looked at in that section alone. When viewed, not as a law of itself, but merely one provision in a series of many interlocking, interacting provisions which make up an Act, this clarity fades away. Further, when considering the legislative purpose of the Act which was passed (however imperfect and poorly drafted), it is clear there was intended to be no difference between State-run and Federal-run Health exchanges. Given the fundamental nature of the provision being debated, it would need require an explicit and clear instruction to create one, which the section in question certainly is not.

What will be interesting going forward  will be to see, now that the last Judicial challenge to the Affordable Care Act has been rejected, is whether those States who refused to open their own exchanges, will now do so. So close to an election, it is unlikely that the hard-line Republicans will change their position – but for the more moderate Congressmen and Governors, the growing acceptance (dare I say appeal?) of Obamacare, coupled with its growing permanency, may lead them to think again.


¹ You can read the entirety of Scalia’s dissent if you want, but here are some of my personal highlights:
 – The “most natural sense” of the phrase “Exchange established by the State” is an Exchange established by a State.
 – The Court’s next bit of interpretive jiggery-pokery involves…
 – We should start calling this law SCOTUScare.

A Permanent Parliament…

…or a post where I really want you to read the footnotes.


My brother has put a poster up on my wall. I don’t like it, but if I take it down he’s just going to moan. So I probably won’t take it down. But you see, he doesn’t trust me – it’s against his very nature to trust me, so he wants to make sure that I can’t take it down. So, he’s put sticky tape on the poster to attach it to the wall. But he’s not really thought this through. Sure, it seems safer, but really it’s not too much of a barrier – if I want to take the poster off, I just have to take the tape off as well. Simple. Tonight, the House of Commons voted on a similar problem.

It’s the cornerstone of British Constitutionalism that the Westminster Parliament is Sovereign.¹ This means it can make and unmake any law it so chooses. The logical extension of this is that Parliament cannot bind itself. It could make a law, but a future Parliament (or indeed, the same Parliament later on) could then repeal it. Parliament, therefore, cannot permanently limit its own sovereignty – but could temporarily deny it.
The Scotland Bill currently going through Westminster kind of goes against the grain. Section 1 of the Scotland Act 1998 states (rather famously):

There shall be a Scottish Parliament.

The new Scotland Bill has since it was a glint in the draftsman’s eye, has sought to amend the Scotland Act to contain a section 1A, reading:

A Scottish Parliament is recognised as a permanent part of the United Kingdom’s constitutional arrangements.

This, as many pointed out at the time, is a pointless provision that doesn’t do anything. The mere fact that the Scottish Parliament is created is sufficient and all that can protect its existence. Legally, Westminster could repeal the Scotland Act 1998 and remove the Scottish Parliament, but politically, they never ever would. In reality, there is a far more powerful political safeguard than the UK Constitution could ever provide.
If Westminster did, at some point in the future, decide that it wanted to ditch the Scottish Parliament, this clause wouldn’t stop it. All Parliament would have to do is, instead of repealing just Section 1, it would repeal Section 1A then Section 1. It’d be bad and wrong, but the government had the votes to do one, it will have the votes to do the other – it is no barrier at all. Section 1A is sticky tape. But the proposed Section 1A also still exists.

The SNP proposed an amendment to the Scotland Bill (which failed) which would insert the following:

(1A) The Scottish Parliament is a permanent part of the United Kingdom’s constitution.

(1B) Subsection (1) or (1A) may be repealed only if—
(a) the Scottish Parliament has consented to the proposed
repeal, and
(b) a referendum has been held in Scotland on the proposed
repeal and a majority of those voting at the referendum
have consented to it.

It gives some degree of additional protection in that it requires a popular referendum – but it is equally redundant. Say a Government did want to get rid of the Scottish Parliament. The doctrine of Parliamentary Sovereignty means that Parliament can legitimately repeal section 1B, before going on to abolish the Parliament. Instead of having to repeal 1 section (as it would just now), or 2 (if the Scotland Bill as it stands passes), it would have to repeal 3, and again, if the Government has enough support to repeal one section, it will have the support to repeal them all.
In short, the SNP’s amendment was just as in ineffectual as the proposal it sought to replace. Yes, if there were attempts to remove the referendum requirement from the Scotland Act, we would know that the Government were on manoeuvres – but we would know that equally well, and with the same effect, if they attempted to repeal the Parliament itself.²

So the numerous MPs and others that were ‘outraged’ that the government voted against making the Scottish Parliament ‘permanent’ are one of two things. They are either constitutional unaware, or they are attempting to make a mountain out of a very small wormhole (and, let’s be honest, probably succeeding). Either way, even if the Scottish Parliament isn’t legally permanent, the political force protecting it is too great – it won’t be going anywhere.


¹ Yes, it is a British principle. The (im)famous statement that Parliamentary Sovereignty is a “…distinctly English principle which has no counterpart in Scottish Constitutional Law” from MacCormick v Lord Advocate 1953 SC 396 at 411 is obiter, and not an established statement of the law.

² Whether this is possible now is, believe it or not, a (seldom asked) question. In the really important case of  AXA General Insurance v Scottish Ministers and Others [[2011] UKSC 46 Lord Hope (the Scottish Deputy President of the UKSC at the time) said that the Scottish Parliament was a “self-standing democratically elected legislature” [46]. This seems to suggest that, even if the Scottland Act was repealed, the Scottish Parliament could continue because it is “self-standing”. Quite what Lord Hope was thinking when he said this I don’t know – and I’ve bottled out of my only opportunity to ask him so far. I hope one day I will.

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