Category Archives: Uncategorized

Your Concerns are not Legitimate…

…or how we lost the Windrush in 2010.


“I’m not a racist”, it begins. It always begins that way. A Statement of being. If you misunderstand what the meaning of what I am about to say, that is your fault, because am not racist.

“…but…”, of course, there is a but. ‘But’ means I am about to say something contrary to what I just said, but ‘but’ doesn’t mean I’m a racist. Because I just told you that, remember.

“but…there’s a lot of foreigners about now, isn’t there? Lots of Immigrants”. Is there? I mean, probably – but is that a problem? I mean, is it affecting you?

“I have legitimate concerns about the effect of increased immigration is having on my country”. Do you? Or do you just not like people who look different?


This kind of attitude or justification for casual racism is accepted now. And it has to stop.

The idea that people “aren’t allowed to talk about Immigration any more” is a situation of which I’m well aware, as Nigel Farage seems to raise it every time he appears on the BBC’s flagship Political discussion show Question Time, becoming its most regular guest in its past 5 years. The people who dare to broach this subject, and raise the common sense legitimate concerns they have are labeled ‘racists’ or ‘old-fashioned’.

But, when these attitudes aren’t challenged. When parties like UKIP dominate the airwaves during the biggest national debate of the modern era and produce posters warning of hordes of immigrants who can come into our country – our political system changes. When a major British Politician can stand in front of a poster of refugees or immigrants declaring that the country is at “Breaking Point” because of it – we have lost our way.

Farage.png

But I don’t blame Nigel Farage. He’s open about his dislike of immigration. He seems almost proud of his race-baiting at times. So no – at least he declares what he is.

I blame Gordon Brown.

In 2010, during the General Election campaign, the then Labour Leader was at a campaign stop in Rochdale. Enter Gillian Duffy, a 60-odd year old woman who has worries and concerns. Concerns about hospitals and schools and the deficit. Concerns, she raised about ‘people on the dole’ and when Mr Brown, consummate politician that he is, explains that a life on the dole is a thing of the past she asks:

“You don’t say anything about the immigrants…all these eastern Europeans that are coming in…where are they coming from”? [1]

Mr. Brown accepts that, but then talks about the important of Helping people and, as Ms. Duffy is a Labour Supporter, she will appreciate that is the overriding principle. The importance of investment. “but what about all the students coming over”. Deftly, if awkwardly, handled.

Then – the infamous hot mike – “what a bigoted woman” he remarked from the safety of his car, while wearing a live microphone. He heard his remarks back on the radio…live…and his face says it all.

And then, he apologised. He had been caught, out-of-touch with ordinary working people. Why didn’t he share the legitimate concerns of those people? Why didn’t he listen to them. Why wasn’t he thinking what they’re thinking? How dare he call an ordinary woman bigoted just because of her concerns about “all those Eastern Europeans coming in”!

Immigration.jpg
The Tories, on 2005.
4495052254_9e5d730fc4_b.jpg
…just in case the first one was too subtle for you.

 

But what if he didn’t apologise. What if he asked Ms. Duffy and her supporters – none of whom are racist or bigoted, of course – what they meant. What their concerns were. If it was underfunding, whether we should be demanding the richest people and businesses to pay their proper taxes and not, ironically enough, move their money off shore?

What if he – we – challenged how legitimate these concerns were.

Ms. Duffy voted Leave in the EU Referendum in 2016. Partly because she was frightened about us “losing our identity“. English Identity, she later clarifies.

It started in 2010…or 2005. On National TV, in the age of rolling news and the cusp of social media. It brings us to 2018, where thousands of people from the Windrush Generation – a moment so important in our National Consciousness that it was part of our 2012 Olympic Games Opening Ceremony – are facing deportation, withdrawal of health care and even losing their jobs because they can’t prove that they have lived here!

But it’s OK. When they landed they had to give Landing Slips which will have been retained by the Home Office. They will confirm the exact date they decided to cross the world to Britain, make the country that so many Windrush travellers felt they belonged to, their home. Except 8 years ago, against Legal Advice, the Home Office decided to destroy them. They say it was due to Data Protection rules where information cannot be kept past the point it is useful – and it’s not useful any more…unless you need to prove how long you’ve lived in the country under the Immigration Rules. Set out By the Home Office. Who have just destroyed the only way you may be able to prove how long you’ve lived in the country for.

I’m telling you, when the Prime Minister Theresa May gets a hold of the Secretary of State for the Home Office who presided over this mass destruction 8 years ago, I’m sure there’ll be trouble.

Except there won’t be, of course. The Current Home Secretary hasn’t resigned and the then-Home Secretary has said she is sorry, so that’s that then. Sorted. Unless you’re deported of course. Or lose your job and lose your livelihood. The Windrush Generation abonded by the law an country that promised to look after them if they came.

Nothing will happen because why should it? We’re allowed to have legitimate concerns about immigration. And these, after all, are immigrants (even though they’re UK Citizens). And it’s not racist to talk about Immigration.


“But they’re not really Uk Citizens” – except they are and were promised all the protections and rights that British Citizenship promises.

“But they’re not really British. You know. Like you and me. You know”.

‘You know’. What begins with “I’m not racist, but…” ends with “you know?”.

“You know what ‘you know’ means. It’s obvious isn’t it? You know. You’re like me, and I know, so you know.” Is it that they’re black?

“WOW. Don’t bring race into this!” – what else could you mean?

“You know”.

Nah – I don’t. not any more.

From now on, I’m gonna need to ask you; and you’re gonna need to tell me exactly what you mean.

But, of course, it won’t be racist.


[1] The answer, for people playing along at home, is “Eastern Europe”.

 

Advertisements

2017: A Shanky Retrospective

…or, applying the lessons from Cadogan Estates Ltd v Morris and Jacobellis v Ohio.


2017’s been some year. That’s true in many respects, and for most people. For me, though, it has definitely been the case. So much has happened this year that the traditional “Hogmanay look back on the year” isn’t a search for the high points (of which there are many) but more an attempt to make a conscious attempt to reflect on everything that’s happened to me, and around me, in the past 12 months.

Continue reading 2017: A Shanky Retrospective

The Ern Malley Christmas Quiz 2017

Good Afternoon everyone! Welcome to the “PAShanky ‘Ern Malley Christmas Quiz’ 2017” Live Blog. It’s been on the go since 9am this morning and the live blog starts at midday.

We’re looking for the 8th word in the 27th line on the 3rd randomly selected page of the 23rd book in the 2nd horizontal stack of the rear-left hand pile in Room C which was upstairs in @GeoffShadbold’s home!

Good luck and remember, there’s #NaePrizes!

Continue reading The Ern Malley Christmas Quiz 2017

Wealth Tax 2: Revenge of the Blog…

…or why context is everything.


So, my recent blog post on Richard Leonard’s plans for a Wealth Tax had an audience, which is nice. I mention this, not to brag about #numbers, but because at least one of the members of the audience was a senior partner at Thompsons Solicitors, Patrick Maguire. He disagrees with my view, so decided to produce a rebuttal blogpost on Unison’s Dave Watson’s website (albeit without linking to or describing the post he was rebutting). Continue reading Wealth Tax 2: Revenge of the Blog…

Thanks Kez

…and how quickly things can change.


This will not be the first Scottish Leadership Election I have written about. When I looked back on Johann Lamont’s leadership I said that there were two things that the Scottish Labour Party had to face up to and change if we were to improve and succeed with going forward: We must be Scottish Labour and we must be Scottish Labour. Under Kez Dugdale, we have done both. Continue reading Thanks Kez

Back to Blogging…

…a summary exhortation on the Summer elections.


I’ve been off the blog for a while for two very different, but equally important reasons:

  1. I changed phones in March and I forgot to change my phone number on WordPress, so my two-factor Authentication wouldn’t let me in and I needed to hunt on old laptops for the back-up codes.
  2. Elections got in the way.

Continue reading Back to Blogging…

The Next Stage of Street Law.

This weekend, the 5th (unofficially) bi-annual Street Law training Session took place in the HQ of the Law Society of Scotland’s headquarters in Edinburgh. It’s the first one in a year-and-a-half I haven’t been involved in, which saddens me a bit.

Street Law is now firmly implanted as part of LSoS’s Legal Education programme – which is fantastic news. Street Law is not ‘teaching law’ the way the LL.B or Diploma means it. The aim of Street Law is to make those most likely to come into contact with the law (who are, by the way, the demographic groups least likely to study law) more aware of the rules and their rights in those situations. Continue reading The Next Stage of Street Law.

A Love Letter to the European Right…

With Europe taking beating after beating, and Theresa May seemingly wanting to make #GE2020 a fight over the ECHR and the scrapping of its partner, Human Rights are in need of some love. I am and will always be, one of the many giving it to them. We, as whatever nation, should be hearing EHCR protects the our fundamental individual rights, but also helps us ensure our government works as it should. Continue reading A Love Letter to the European Right…

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.