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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). There were three main points, as far as I can see, about my post:

  1. He didn’t like the writing style.
  2. He didn’t see the ‘legislative competency’ as an issue
  3. 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 [2015] 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.


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.

When Kez stood for leadership way back in…2015, Labour was in dire straights. Less than a year ago we had won the Referendum on Scottish Independence – but soon after had been labeled a branch office by our outgoing leader and suffered a polling slump. Their successor, Jim Murphy, had a very different style of leadership to them – and was bound to be a divisive figure from the start. The “get out in the streets and see if anyone punches me” Campaign of #GE2015 will lead to many great political memoirs in 10-20 years. But it was, ultimately, an unsuccessful attempt at staving off the SNP menace, with only Ian Murray being returned to Westminster as a Labour MP – not even the leader himself saving his seat.

And so, to Kez. Kez who started out as Leader of a Scottish Party alongside a UK Leadership election which was nasty and personal. Kez who started out with all and sundry telling her she had assumed the most unwanted job in Scottish politics. Kez who was in charge of the ‘Branch Office’.Kez who inherited a party that was assumed to be in terminal decline.

And yet – here we are now – almost 2 years later.

Not dead.

We became a more distinctly Scottish Labour Party. Under Kezia, we became braver in asserting our own distinct position in certain issues, and became slightly more comfortable in our Scottishness. Albeit, this is easier when the Scottish PLP is pretty self-determining and the UK Party isn’t relying on Scottish representatives to succeed. But, nonetheless, Scottish Labour embraced its national identity without aping nationalism. Kezia fought – and won – a Scottish Party seat on the UK Labour NEC despite fierce opposition from factions in the party. The 2016 Scottish Parliament Manifesto was miles to the left of the 2017 General Election one – and was not afraid to take it’s own approach in devolved areas, even when it did not mirror UK policy stances.

But also, we became more Scottish Labour. It is glib to say that, after Jim Murphy, that wasn’t hard – but in certain ways, it is right. Jim Murphy was and is a Labour man through and through, but he did not run a Labour Campaign in 2015. Some of the policies were Labour – but they seemed more policies of convenience of conviction. When Kez took over, the policy process went back to basics. The values of Solidarity, Socialism and Equality were firmly embedded in the policy process and, I think, were reflected in the tax and economic platform in the 2016 Manifesto – and in policies it was intended to fund. But policies, it must always be remembered, lost elections. Three Elections.

Despite what I have said, Scottish Labour lost badly 3 times during Kez’s tenure as leader. So badly, in fact, we lost to the Tories! Even in 2015 – things weren’t that bad. But a major factor in that is the constitutional tumult in which Scotland is still caught. With a pious Pro-Indy position from the SNP and a staunch Unionist military mantra coming from the Tories, an unclear and (at times) mixed-message from Labour won us few friends in constitutional terms. Where we gained votes (and we did gain votes) in 2017, it was on the Health Service, Education, public spending and the sense that we need to start thinking about those things again.

And that will be the legacy of Kez’s Leadership – that she has ushered in the beginning of the end of Scotland’s constitutional conversation. When literacy and numeracy standards were falling in Scotland’s schools and the SNP’s response was to withdraw from the international tests that highlighted this – Kez made sure it was front page news. When Nurses are facing a pay freeze and patients face longer waiting times – Kez made sure their voices were heard. And people heard. And people got angry. And they didn’t vote SNP because of it.

But we still lost.

So, if Kez has decided to leave, what do we do now? The next leader has to continue to make the Labour case for Scottish problems and cannot afford to be sucked back into a new constitutional debate on Tory terms. They also cannot run away from the UK party’s direction of travel either, because – and I will accept that I was wrong on this before – it resonates with people more than could have been imagined. But most importantly, they must be able to speak to people.

Kez re-normalised the Labour Party in Scotland. During 2015 people hated us on the doorstep. In 2016, the didn’t really like us. But in 2017, people were listening to us – and in some cases actually agreeing! Along with re-normalising politics she helped re-normalise us.

And for that, Kez, thank you.

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.

The first is my own fault.The second, which probably increased the time it took to solve the first, was caused by the decisions and unavoidable circumstances of many others – but I can honestly say that it was one of the most exciting and interesting experience of my life so far. I never expected to be running the Local Elections for the 3 wards in Glasgow Anniesland – and definitely didn’t expect to become an Election Agent over the course of 3 days – but I immensely enjoyed both of these times, despite the time and planning both involved.

I will write more thoroughly over the coming weeks about both the Local and General Elections, but I wanted to give a few thoughts – and in some ways having a few weeks’ distance from the 4th May and 8th June has been useful to see how things have panned out.

At a local level, my reaction can be summed up as almost complete satisfaction. At the Local Elections, there were 5 Labour Candidates standing across Glasgow Anniesland’s 3 wards – and all 5 were returned. That’s a 100% hit rate. It is testament to the Labour Campaign in Glasgow and the way we ran it – but also the amazing talents of our Council Candidates. And for the General Election, while Labour didn’t win in Glasgow North West, if you had said that the SNP majority wouldn’t just be halved, but quartered, you would not have been believed. But that was exactly what happened, not just in Glasgow NW, but across the city – and across the whole of Scotland the SNP’s seemingly immovable grip suddenly became a lot weaker.

Hopefully, and I genuinely say this more in hope than expectation, I will be able to finish and post my thoughts on both elections before the next one is called – and I think there are lots of lessons Labour can learn from these elections, both at a Scottish and UK level. And whenever the next General Election is called – there is one thing I know:

The Labour Party needs to win 64 seats to form the next government. Glasgow North West is Target number 58. The Road to the next Labour Government goes through Glasgow!

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.

I will never forget my first Street Law lesson in Bellahouston Academy, which looked at Stop and Search, just as the controversy of Police Scotland’s abuse of Stop and Search powers  was coming to light. I had never been stopped and searched – but the 13 year old boy in front of me had been and didn’t know what his rights were when he was. If the law is supposed to be ‘known’ and accessible, that includes the kids too.
My favourite lesson to do is the Human Rights lesson because it makes kids think about what they take for granted: privacy, freedom from torture, procedural fairness. Sometimes, they even make the connection with the news and the government and Prime Minster who keeps wanting to remove the rights. Some, some, even get angry about it. Street Law isn’t about trying to impose any particular view on the law, or any particular jurisprudencial outlook, but if that discussion comes about, then that can surely only be a good thing.

The LSoS’s purpose for Street Law is raising awareness of the law for those who are most affected by it. But success – and it must now be seen as a success – leads to more questions. Now that Street Law is established as an option by LSoS, what are the next steps? It is tempting, and I feel this may be lawyer instincts for formalisation kicking in, to say that the next stage of this should be the creation of a subject of “Law” at Higher or Advance Higher stage – but there are so many practical questions in there that require detailed answers before that is possible. Who teaches it? What does it include? How do you limit it? How do you not bore them to death with delict?
The most immediate question, in my mind, is “How do we increase uptake in the Street law programme? Street Law is provided by LSoS, but as an option. It is presented to councils and Head teachers as something they may want to take up (and it’s very ‘Curriculum for Excellence’ friendly) but some do and some don’t. Those that do offer universal praise – so how do we convince those who don’t take up the offer? And, while the offer is open to all, does it mean something that schools like Jordanhill (who the programme isn’t particularly aimed at) still jump at it?
Street Law is, at the moment, scarcely funded. The Law Society can’t do much more and are doing more than they can to support it (with Rob Marrs and Lyndsey Thompson going above and beyond to support the programme) and convince Head Teachers to take up the offer, but can more be done?  Could more funding lead to more growth across the country?The programme now has sponsorship from large Law firms (including CM and Pincent Masons) – might this allow clearer resources and support to follow?
Even though just over 30 schools across Scotland have taken Street Law into their classrooms, how can this be expanded? Could it be that some teachers see it as separate and distracting from, and not part of, a Modern Studies syllabus? Could it be that teachers aren’t confident enough to trust Law students without teaching diplomas loose in their classrooms? Does the fact that it doesn’t free up a teacher (since Street Law should still be supervised by the class teacher) remove a potential benefit? These are all questions that, as the programme enters its 3rd year, LSoS can begin to form answers to and address.

Street Law’s success is a testament to the support it has received from LSoS, the officers organising it, the students leading it, the schools arranging it and the pupils receiving it. If the benefits of it can be clearly demonstrated, I am in no doubt that, over the next 3 years it will become a normal part of Secondary School Social Sciences and, as a consequence, school pupils will have an increased (and accurate) knowledge of the law as it affects them. Particularly those from lower-income backgrounds might come to see law  as something accessible and maybe even achievable for them.

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.

Anti-ECHR arguments come into two flavours; the “Human rights aren’t British values” kind (overlooking the part the UK played in drafting the ECHR), and those of the “GAH EUROPE!/UKIP” kind. The latter group often equates the ECHR with the omnipresent terror of the European Union (I’m looking at you “The Sun”), but, in the words of my public law professor (and now MSP) Adam Tomkins, “There are two legal Europes! TWO!” The European Union – for the most part – doesn’t care about human rights, so here it is as unimportant as the Scottish Christian Party, but I do want to address the idea that Human Rights are European, not British, values. Winston Churchill helped form the Council of Europe, the ECHR’s body, in the aftermath of WW2. The Document protected people from torture and defended their right to free speech and thought. How can these not be British values?

The former argument is worth addressing more fully. The EHCR has, over its nearly 50 year history, raised some uncomfortable questions for successive British governments and has seen the UK go to the Strasbourg court (The European COURT of Human Rights) many times. What is rarely reported, however, is that the UK has lost just 0.5% of Strasbourg Cases!

But 99.5% successes are, perhaps, not as contentious as that losing 0.5%. One of the longest running spats is the issue of prisoners’ voting rights. The Court agreed that depriving all prisoners of the vote runs contrary to the ECHR and therefore the UK must lift its ban. This has irked many on all sides, so successive governments have attempted to kick the issue into the long grass. But, contrary to some reports (I haven’t looked away “The Sun”), saying “not all prisoners should lose the vote” is not the same as saying “all prisoners should have the vote”.  The court has repeatedly said that it is only the universal ban is illegal. For many, this tension is a reason to scrap the ECHR, but for me it shows it’s working, by forcing parliament, government, ministers, and most of all the public to ask difficult questions and, sometimes, give difficult answers.

Even though the success of certain human rights arguments has sometimes been bitter, the ECHR has helped the UK modernise and become a 21st century nation. It was human rights that led to the scrapping of the ban on gay and lesbian people in the army. Despite warnings at the time that it would disrupt troop morale and was a prime example of a European attack on British sovereignty – does such a decision seem controversial now? It has also forced the question on women’s rights and equal marriage – concepts now not so un-British or Anti-Scottish as they perhaps once were. The UK generally, and Scotland in particular, now has some of the highest LGBT+-friendliness rating in Europe. Human Rights helped get us there.

But, irrespective of all these achievements – the spectre of terrorists having rights will always fan the anti-ECHR flames. The idea that a suspected terrorist, like the former bane of Theresa May’s life, Abu Qatada, can use these ‘European’ human rights arguments to stave off deportation to Jordan is ghastly to many. But how radical a suggestion is it that a man should not be convicted using evidence that stands a high chance of being obtained under torture? Would we accept that in the British justice system? It was, after all, a UK body that accepted the human Rights argument, not some “Mickey Mouse court” (Tony Bone MP). When it was suggested that planes used in US extradition flights landed on UK soil, there were immediate massive outcries. So why is this decision so controversial?

One final example. The “BA Crucifix” case – where British Airways employee Nadia Eweida went to the European Court of Human Rights to confirm her right to wear a cross on a chain . British Employment tribunals had, on two occasions, held that there was no breach of UK law (and by extension her convention rights), but when she went to Strasbourg she got the confirmation she was looking for. Surely this was met with outrage by the right as European judges over-ruling British judges? Quite the opposite. One Tory MP even tweeted that he was “[d]elighted that principle of wearing religious symbols at work has been upheld – people shouldn’t suffer discrimination due to religious beliefs.” The MP was David Cameron.

This was first written back in 2012 for an old site called – which has since closed. It has been minimally amended to fit 2016’s new political circumstances.

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.

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
Caroline Flint
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

Goodbye Friends…

Today there was a defining moment in Scottish Theatrical history. At 5pm today, the curtain came down on the final ever show the Singing Kettle will ever have. This, for me, is a sad sad day indeed.

The Singing Kettle formed in the 1980s when husband and wife Artie and Cilla started preforming their folk tunes to kids. Joined soon by Gary Coupland who provided the music. With the ‘classic’ line up was established, they entertained a generations of kids. Literally – those who went to the first shows in the 80s then took their own kids to seem them in the early 2000’s. They were, and still are, a much loved Scottish tradition.

Artie and Cilla’s daughter, Jane, was a ‘4th member’ for a time but soon left to pursue other artistic endeavours. In turn, the long-time backstage member, Kevin joined the main troupe. However, the end has since been in sight for a long time. Artie and Cilla retired from preforming in 2012 and, while they stayed on behind the scenes, it was only going to end one way. Anya stepped in to make the group a trio once again – and I saw a the final line-up a few years ago when I took a friends niece and nephew to the show. It was as fun and colourful as it ever had been, with the kids joining in. I am genuinely sad that the Singing Kettle is no more.

The current cast of Kevin, Anya and Gary (who is still there from the start) are starting up a very kettle-esque venture called ‘Funbox‘ that I hope I can one day take my future kids (if they appear) to. It is, with no doubt, the only true spiritual successor to the Singing Kettle and its traditions. but still, I am sad.
I am sad, most of all, that that occasion has passed with little comment or marking. In the grand scheme of things, little will change, but in Scotland’s rich and proud tradition of theatre, especially for children – this is a sad time. It is akin to the Glasgow Kings not having a pantomime. This sounds like an exaggeration – but it’s really not. The Singing Kettle have sold more tickets at the SECC than any other act ever. Stuff your One Directions and your 5 Second of Summers.
And setting that aside they made several series on both the BBC and STV which captured the fun and interaction. You can’t beat an army of kids. Especially when they have a battle cry!

Spout, Handle, Lid of Metal;
What’s inside the Singiiiiiiiiiiiiiiiiiiiiiiiiiiiing Kettle!?