The 3rd Death of Assisted Suicide…

…or a shameless self promotion

Today, at approximately 5pm, the late Margo MacDonald’s Assisted Suicide (Scotland) Bill, adopted by Partick Harvie, will most likely be defeated at Stage 1. it’ll mark the third time in as many Parliaments that a bill that would legalise Assisted Suicide would fail to pass. This bill in particular has come in for pretty harsh criticism, and the Committee hasn’t been particularly kind either. It is doomed to fail.

The Bill itself is awful and little loose, and continues this parliament’s history of terribly written legislation, but that can always be fixed at the 2nd and 3rd Stages via amendment. But this Bill will probably fall at Stage 1; the Parliament disagrees with its General Principle that people should be able to be able to choose assisted suicide as an end-of-life choice. I’m not entirely sure where I stand on the principle, but I know I am now more ‘pro’ side than I was at the start.

That was partly because of the Mason Institute debate I took part in at the end of the year. The motion was “That the House would legalise Assisted-Suicide in Scotland” – which was taken to mean passing the legislation proposed by Margo MacDonald, and I spoke in favour of the Proposition. So, I thought to mark the end of a parliamentary process, I would share my speech, and the (slightly noisy) video of the debate.
It’s an argument on the principles of the Bill, so hopefully of a similar kind to the remarks we’ll hear today. The whole debate was great on both sides, and I start at 1:03:05.

With Assisted Dying raising its head again South of the Border, it’s almost certain that we will see it come back here too after next year’s Scottish General Election – but until then, it’s unlikely it will be a live issue.

The Assisted Suicide (Scotland) Bill will be debated from 2.45pm in the Scottish Parliament. Decision Time will begin at 5pm. It can be viewed on BBC’s Democracy Live.


Re-Solving Legal Aid…

…or how I developed a new respect for the Law Society.

Last November the Law Society of Scotland (or ‘LSoS’) released it’s Discussion Paper on the Future of Legal Aid in Scotland, setting out what changes it felt could be made. At the time I, amongst others, came out pretty resolutely against many of the reforms they suggested, since I felt they would damage the ability for the most vulnerable in society to access the legal system. As it happened, I was told by a reliable source that the high heid yins in LSoS’s Legal Aid department actually saw the post and considered it in response to the discussion paper.
Last week (the day before the General Election nonetheless), LSoS released their Final Recommendations based on the responses (and blog posts) they received. I’ve read it and it was a really positive shift from 6 months ago.

Criminal-wise, LSoS propose a system of block fees, to take account of the fact that since Legal Aid was last reformed, we have entered the post-Cadder age, where lawyers available at all hours of the day. With ‘telephone advice’ becoming a separate block, this will help simplify the system. There would then be a clear compartmentalisation of each additional “kind” of work required as is needed. This system has the great advantage of all knowing both the Legal Aid Board and solicitors to know ahead of time, what they can expect, instead of having to get Legal Aid certificates renewed every time. This is very similar to the current system, but tightens it up around the edges and makes it even clearer what can be expected when. Good work all round.

But it’s the massive changes with regards to Civil Legal Aid which have got me excited. My biggest problem with the discussion paper was LSoS suggesting that certain areas of law should be taken out of the scope of Civil legal Aid entirely. Those areas (including breach of contract; debt; employment issues; and housing) were the ones that vulnerable and disadvantaged were most affected by, and so it would be those groups that would feel the brunt of the Legal Aid cuts most keenly. However, I was pleased to see that LSoS have dropped the awful proposals. This genuinely made me smile when I read it, because it means those most in need of access to the justice system can still get their foot in the door.
The idea of Legal Aid Loans  (which will be paid back over a certain length of time based on financial means) is still not sitting 100% with me, but restricting them to the richest qualifiers as a kind of ‘top-up’ should lessen the worst aspects of the system. As long as free support is there for those most in need of it, top-up style loans will have a place in the system going forward.
Finally, it’s great that there’s a commitment to work with the voluntary sector to see how the professional legal sector  can work alongside it. However, and I accept that this is perhaps slightly outwith LSoS’s remit, the funding issues faced by law centres and advice bureau mean that, unless they are explored and resolved in a serious way, no long-term answers will be found. One possible step may be linking law firms and 3rd sector organisations, but this could only really be made viable through alternative business structures, which aren’t coming into Scotland as quickly as was anticipated only a few years ago.

In short, the Final Report is a massive improvement on what LSoS originally put out for discussion, so the Society should be proud. It has really listened to the responses it received – and that gives me great comfort as I enter the profession. The real way to solve this problem, of course, is to increase funding to Legal Aid and treat it as the important issue it is. You can have all the rights in the world, but if you are unable to enforce them in court, they are worthless. The idea that the only people who benefit from Legal Aid are fat-cat lawyers is, unfortunately, still keenly in the zeitgeist, which is a challenge for the profession – but the challenge for everyone is to defend the right a defence.

Given the recent discussion around Human Rights and all that surrounds them, it’s also worth highlighting that the right to proper representation has been accepted as being part of Article 6. So far in that debate, both the Scottish Government  and the Scottish Parliament has stated it will be a fierce defender of Human Rights in Scotland. By ensuring Legal Aid is sustainable and accessible in the long-term (which includes ensuring it has proper funding), they would be able to show that they will be.

Repealing the HRA…

…or why we need to get a grip on multi-level legislature.

It has long been the Conservative Party’s intention to repeal the Human Rights Act 1998 [the ‘HRA’] and replace it with a British ‘Bill of Rights’ (which would actually be an ‘Act of Rights’). Now that there is a Conservative government, this is very likely to happen. But what would getting rid of the HRA mean? Would it achieve what proponents of the move believe it would, and what would it mean in a Scottish Context? When you explore these questions, and untangle the myriad of interwoven Human Rights protections in the UK Constitution, it appears that repealing the HRA alone would be of very limited effect and could cause serious constitutional issues in a devolution context.

The HRA was passed in 1998 and changed the UK’s relationship with Human Rights in three major ways.

  1. The European Convention on Human Rights [The ECHR] could now be relied on in domestic courts. It made international law an inherent part of the domestic law as well. This means people can use ‘Human Rights arguments’ just as easily in the Supreme Court in London (or the Court of Session in Edinburgh) as they can in the European Court of Human Rights in Strasbourg. [s.2 HRA]
  2. Public Authorities in the UK could no longer act in a way that was contrary to ECHR Rights unless they absolutely had to because the law made them. This includes public hospitals and local councils, but also courts and tribunals, which means that judges and decision makers have to consider the Human Rights implications in all of their judgements. [s.6 HRA]
  3. Courts are bound to interpret legislation in a way which is compatible with ECHR rights, so far as it is able to do so. If, it finds, there is no way a law can ever be read in a Human Rights compliant way, then the law still applies but the court is able to issue a “declaration of incompatibility” which…declares the law is incompatible. [HRA ss.3 & 4]

Using the example of a prisoner wanting to vote in an election; Article 3 of Protocol 1 [A3P1] provides for free and fair elections, where people are allowed to vote, which has been interpreted to include prisoners (or at least exclude a blanket ban on all prisoners). Point 1 allows our hypothetical prisoner to argue the A3P1 case in Scotland, and not have to have the expense of a European legal trip. Point 2 means that it were there any doubt in the law, the Electoral Commission would have to act in accordance with A3P1 and give our prisoner the vote – but unfortunately the Act of Parliament depriving out prisoner of the vote is very clear. But Point 3 means that, even though there is no way the law can be read as complying with the UK’s A3P1 duties, the court can still issue a Declaration of Incompatibility, bringing the problem to Parliament’s attention and showing the issue. Unfortunately for our prisoner, however, the law remains enforceable and they still can’t vote in the election.
The HRA makes Human Rights a central part of our legal framework in many situations. The above steps would apply if it was someone who felt they’d not been respected at work; mistreated in an NHS hospital; not had their immigration application properly considered; or felt their religious freedoms were under attack. Underpinning all of this is the fact the UK was one of the founding members of the Council of Europe and signed up to the ECHR in the 1950s after playing a key role in drafting it. The ECHR protected Human Rights from a far away place for those who could afford it; the HRA brought Human Rights home and allowed British Judges a lot more room in applying European Jurisprudence in a British context. It also ensures that, as a nation, we do all we can, in our laws and in our institutions, to uphold the norms and values we claim to cherish.

But, the HRA is not the only use of the ECHR in our domestic constitution. The Scotland Act 1998 [the “SA”] states in s.29(2)(d) that the Scottish Parliament cannot legislate contrary to Convention Rights, and any provision which professes to do so is not law. This is clearly a much stricter regime than the HRA imposes on the UK Parliament. The HRA says “you shouldn’t legislate contrary to the ECHR, and we’ll try our hardest to read the law in line with the ECHR, but if you do it anyway, the law will still apply”, while the SA takes an approach much more akin to the US Constitution, “these are the limits of your power and you cannot cross them, because if you do the law you attempt to pass will not be law at all”. This provision is separate to the HRA – repealing the HRA will not change this.
What it would change would be, say, Glasgow City Council’s duties re. Human Rights. Local authorities, like all public authorities, as I said in Point 2 above, bound to act in accordance with ECHR rights at all times, unless it is required to act otherwise by law. If the HRA was repealed, Glasgow City Council, like all other councils across Scotland and the UK, would no longer be burdened by this duty. It could, then, act to ban all parades of a religious or political nature in the city centre – as is within its power as a local authority. It would arguably go against the ECHR (particularly Articles 9 and 10), but it is now able to take decisions that do not respect Human Rights.
The Scottish Parliament, however, if it attempted to take that very same decision, would be acting outwith its power by virtue of the provisions in the Scotland Act 1998, because Acts of the Scottish Parliament would still have to comply with the ECHR compatibility obligation.

There is, however, a further constitutional twist in the Human Rights tale. Under the Scotland Act 1998, the Scottish Parliament is unable to amend or repeal the Human Rights Act (as it is a ‘protected provision’ under Schedule 4 p.1(2)(f)). HOWEVER, ‘Human Rights’ more generally are not listed as a reserved competence in Schedule 5, meaning that the Scottish Parliament could competently legislate re. Human Rights. This has two important implications:

  • Under the Sewel Convention, the UK Parliament will seek consent from the Scottish Parliament when it will legislate re. a devolved matter. If Holyrood (as it most likely would) withholds its consent to HRA repeal, then the UK Parliament could still legislate [SA s.28(7)] but would likely experience major political fallout, at a time when that could stretch Scots-Anglo tensions more than ever. This is a fallout that would be increased because Clause 2 of the ‘Draft Scotland Clauses 2015’ will also “…recognise that the Parliament of the UK will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament” – linking HRA repeal into the almighty and ever-pervasive vow!
  • Even if the UK Parliament did repeal the HRA 1998, because ‘Human Rights’ is a devolved matter, there would be nothing to stop the Scottish Parliament introducing a Scottish Human Rights Act to replace it in Scotland. This would bring Scottish public authorities (Local Authorities, Scottish Government Organs etc) back into the scope of the ECHR – but would have a limited effect on UK public Authorities operating in Scotland (such as the Asylum Tribunals, where Human Rights have played an increasingly important part over the last 20 years). This would also, inevitably, lead to a rash of cases about the Scottish Parliament’s competence and where the ever-fuzzier lines between UK and Scotland exists.

I’ve not even touched the important part the HRA plays in the Good Friday Agreement…but from a purely Scottish perspective, it’s already clear to see how difficult it will be to separate out the ‘European Rights’ from our domestic law. Some would argue, and I am one of them, that this is because, fundamentally, these are British Rights. Others would say that this serves as proof of just how much British sovereignty has been lost since the Human Rights Act came into being. You can make of this situation what you will, but I leave you with this: the UK wins 99.5% of all Human Rights cases it faces in the ECtHR, and as decade and a half long issue of prisoners’ rights to vote shows, even those we lose don’t make us change anything quickly – it is at home the HRA and Human Rights have had the largest effect. Is that really a problem?

If you want more info on what the Human Rights Act, the ECHR and Human Rights more generally mean to you, then visit the brand new, which has stories, graphics and stories about how human rights have shaped and improved the UK. It’s brilliant.

Why I’m Labour

It will come as no surprise to anyone that I am voting Labour in this General Election. But I want to talk about why.

I’m voting Labour because I believe, fundamentally, that the Labour Party is a force for good. Every government of change in this country has been a Labour government; and every Labour government has fundamentally changed this country for the better.

In the 1920’s, it was a Labour Government that created affordable local housing for people.
In the 1940’s, it was a Labour Government that created the Welfare State as we know it today, and created the NHS that brought us into he world and we now all rely on.
In the 1960’s, it was a Labour Government that decriminalised homosexuality in the UK, which was the first big step towards the equality this country now enjoys.
In the 1990’s, it was a Labour Government that introduced the National Minimum wage, that protects so many workers of all ages and kinds.
It will only be a Labour Government that will provide the change that this country once again desperately needs.

It is only a Labour Government that will ban exploitative 0-hours contracts across the UK, protecting the rights of working people across the UK. Working people, people who are relying on working income to feed their families and heat their homes, should be able to rely on regular work and decent income, without having to wait on a text to see if they should bother to go in that morning, and whether they’ll be paid at the end of the day. It is the only part that has constantly and consistently supported the Living Wage in public procurement and in private business.
It is only a Labour Government that has pledged to tax the richest and support the poorest. It has will re-introduce the 50p tax-rate, ending the Tories tax-cut for millionaires; and will lower taxes for the least well off in society. It will introduce a Mansion Tax on homes worth over £2million, and use that money to properly provide our public services which have been under-funded both north and south of the border. It will end once and for all the scandalous Bedroom Tax.
And it is only a Labour Government that has a real plan to help real people and stand up for the powerless against the powerful. It will take on the energy companies by freezing energy prices for 2 years and give the regulator to make sure prices are fair. It will stand up to Murdoch and his media empire, by creating proper regulation of the press to stop them hacking phones and going after the family of 17-year old girls who don’t support their point of view. It will tackle tax-avoidance and not turn a blind eye to it as has been done before, and end the archaic position of non-doms who escape their fair share of tax. No more!

This is a Labour Party that will stand up for people across the country and across our nations. And that means letting the nations standing up themselves. A stronger Scottish Parliament than the one it created in 1999, and one prepared for new responsibilities as it approaches its 20th birthday. An end to the House of Lords and a new elected Senate of the Nations and Regions to ensure that all regional voices are heard and shape the future of the country. And a conversation about how we continue in the future, with a real examination of how our country works.

I am voting Labour because I believe in Labour’s fundamental tenant: that by the strength of our common endeavour, we achieve more than we can achieve alone”. It is this that encapsulates the Labour Party in Scotland, Labour across the UK and the entire international Labour Movement of which I am proud to be a part. The SNP have claimed that they can keep Labour honest, and make us true to our word. As much as I appreciate their support of Labour’s policies (many of which they have voted against in the past – tax rises for the richest, rent-caps & the Living Wage condition in public procurement among others), there is, I think, too wide a gap between the two. Labour is a Democratic Socialist Party; the SNP is a Nationalist one. The first requires solidarity; the second demands separation.
I believe the Union (for all its faults) is a fundamentally good thing and Scotland benefits from it. Only be coming together and sharing what we have will we be able to help those who need it most. What illustrates this fr me is the Mansion Tax, a Labour Policy with SNP support. 95% of all the money it raises will come from the South-East of England and only 1/3 of 1% will be raised in Scotland – yet that money will benefit people all across the UK, with c.10% coming to Scotland. The same with a bankers’ bonus tax (affecting the richest in London). These policies only help the poorest in a UK context. If we cut Scotland off from this pooling and sharing of money, we do Scotland a disservice. Full Fiscal Autonomy, which Nicola Sturgeon has committed SNP MPs to supporting, would deprive Scotland of so much.
Not only would it mean a £7.6bn funding gap this year alone (rising to £10bn in the next 5 years) it would cut Scotland off from so much more. Money that could fund 1000 new nurses and 500 new GPs. Money that, would not only reverse the some 140,000 college places lost over the last 8 years, but actually help the poorest Scottish University students as well. Fee-Free tuition is great, but it alone does nothing and helps only the middle and upper class. Labour’s plan to increase bursaries for the poorest students by £1000, is what will help us get working class Scots into University – something that Fee-paying England is currently doing far better than us. Money that would let us provide £1,600 for every 18 and 19 year-old not in further or higher education, and not in training, to get ahead. And money that can guarantee a job for every single 18 to 14 year old that out of work for more than a year.
Labour offer pooled money for progressive, radical policies – I don’t want to walk away from that.

The Labour Party has not, is not and can never be ‘perfect’. It can never offer a socialist paradigm because it knows it can never implement it. It was, let us not forget, Atlee’s government, idealised by so many in Scotland, who introduced the UK’s first nuclear weapon – but I hope that, along with the rest of the world, it will be a Labour Government that gets rid of them, not just the UK, but the planet. But The Labour Party, in particular this Labour Party, and only the Labour Party, is offering a radical vision for so many people.

It is once again only the Labour party that can be the government for real, effective, lasting change for working people – based not on where they come from or what they’ve done, but what they need.

It is that government that I will be voting for.