…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). There were three main points, as far as I can see, about my post:
- He didn’t like the writing style.
- He didn’t see the ‘legislative competency’ as an issue
- I didn’t analyse the human rights argument, which he decided was the main point of my post, enough or correctly.
I want to offer my own opinion on these points.
Writing style and context
The reason my blog post was set out the way it was is because of the audience for which it was written. I wrote the article looking at the legal basis for a Scottish Parliament wealth tax because of a discussion among Labour Party members who are not from a legal background.
I am well aware that I am a trainee solicitor who still requires to be trained, but I wasn’t writing as a trainee. I was writing as someone who has a general understanding of the law and wanted to explain, from first principles, what issues a wealth tax proposal would face. That’s why I wanted to quote legislation as I went along, so people who perhaps weren’t fully aware of where my argument was coming from could follow along. I wasn’t aiming for dynamic legal analysis (though it was not merely ‘superficial’), but an easily to follow argument about legislative competence.
On ‘devolved matters’
On the main bulk of my blog, only one paragraph is written. I will reproduce it in full:
“The blog correctly identified that an Order in Council would be required under section 80B of the Scotland Act 1998 as amended. But the author of the piece couldn’t help trying to over egg how arduous a process this would be. Speed in fact the defining characteristic of secondary legislation such as Orders in Council. If there is political will, there will (good that) be no problem.”
The first sentence agrees with my fundamental point: the Scottish Parliament, as things currently stand, cannot legally pass a wealth tax. Some say it disputes this point (such as Ewan Gibbs writing for the New Socialist this weekend), but it is quite categorical that an Order in Council is needed.
However, I would disagree that I “couldn’t help but over egg” the challenge an Order in Council would overcome. I devote a whole 4 paragraphs to the entire “order in council issue” and I concluded that, theoretically, Westminster could pass such an order if it wanted. But now it’s been mentioned, it’s worth reminding ourselves of how that would have to happen.
Patrick mentioned that the only thing stopping such a tax being devolved via an Order in Council is “political will”. I think that’s right – but I don’t think that will change in any meaningful way. There is no way that an SNP- or Tory-led Scottish Parliament will call for the powers to levy a wealth tax (or at least, not so they could use them). So only a Labour Scottish Government would have the political will to call for these powers. But, who would have the political will to grant them? A Tory UK government? No chance! Only a UK Labour UK Government would grant the Scottish Parliament these powers. But if there was a Labour UK government, why wouldn’t they be instituting a wealth tax at a UK level (from which Scotland would disproportionately benefit)? The policy is either legally road-blocked or politically inexpedient. I don’t think there is an effective political will – there is a problem.
Plus, on a more political level – why do we want to go back to an argument about the constitutional settlement again? It seems that since the middle of 2013 we have spoken about nothing about the Constitution in one way or another. And we know that this is not Labour’s strong turf. We cannot our nationalist the Nationalists and will not defend the UK more bombastically than Ruth Davidson in military uniform or in a tank. What is intended to be a policy promoting a discussion on class and wealth, will lead to further discussion about the constitution.
The human rights argument
As I said previously, my focus was on the devolved/reserved dimension of the Scottish Parliament’s legislative competence – not the convention rights dimension. Indeed, convention rights were mentioned only as a little bit of an afterthought in order to move the debate along.
I could have gone into the proportionality test, applied it and gone through it step-by-step, but I took the decision not to. Indeed, Patrick’s discussion of it is solid, and I wouldn’t necessarily argue against it, as far as it goes. However, and it is at this point I am conscious that I am a trainee and that Mr. McGuire is a senior partner, I do not think it tackles the point of the legislation being retrospective.
The key case that sets the law in this is the same reference of the Counsel General of Wales  which lays out the 4-part proportionality test. It states several times that where legislation has a retrospective effect, “special justification” is required [paras 53,57, 65; and separately paras 133, 138]. It isn’t enough to say that the proposal is proportionate, but that you can justify the retrospective effect – and just describing it as “a miniscule 1% of wealth” isn’t a special justification. Nor would “the government needs more money”. I’d be concerned that the
So, building and expanding upon Mr. McGuire’s analysis of the case, there is a serious question for those who support the proposition that a Scottish Parliament Wealth Tax is legal (assuming the s.80B order-in-council is granted, which it is in no way guaranteed to be); what is the special justification for its retrospective effect? And that question only comes (we can be agreed) after Holyrood has the devolved power to pass the law in any case – and I do not agree that an Order in Council is a dead cert in any case.
This is not to say I don’t agree with the principle of a wealth tax. I do. I think a wealth tax would be a radical and revolutionary idea – and I’m glad it has featured in this leadership election. However, dismissing the substantial (though by no means insurmountable) obstacles in its’ way diminishes our Party and is not enough to make a policy, no matter how good, a reality.