Labour Party Leadership Election 2015

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

Leader of the Labour Party

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

No Preference: Jeremy Corbyn

Deputy Leader of the Labour Party

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

Conference Arrangements Committee

Voting for: Michael Cashman; Katy Clark

National Policy Forum (Scotland)

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

National Policy Forum (Scotland Youth)

Voting For: Kate Dearden

Head in the Game…

…or Heart on the sleeve.


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

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

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

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

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

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

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


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

ObamaCare Forever (maybe)…

Full Opinion and Dissent

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

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

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

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

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

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

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

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

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

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

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

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

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

and later:

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

Conclusion

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

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


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

A Permanent Parliament…

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


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

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

There shall be a Scottish Parliament.

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

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

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

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

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

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

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

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


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

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

Lies, Damned Lies and Juristics…

…or ‘Scots Law Strikes Again’.


In Scotland, as I’ve said before, the burden of a court case is divided up. The Jury are the most important people in a court room, but they are the keepers of the facts. I’ve argued the sometimes that can lead to problems, but it remains that the jury determines the facts of the case. But the Judge is important too, because they are the keeper of ‘The Law’. It is their duty to ensure, not only that the law is observed, but to help the jury in determining the law. Before a jury is sent out to deliberate their verdict, the Judge explains the law to them, what is required to have been shown, and what should happen in certain circumstances.

In order to be found guilty of a crime, the jury has to find you guilty. In order for the jury to do that, the judge must be satisfied (as is their role) that the Prosecution has led evidence that could prove the crime. That is not to say that the judge feels that the crime has been proven on the basis of that evidence, but that if everything the prosecution has said is true, then the crime may have happened.
Take, for example, theft. The Prosecution would have to lead evidence that

  1. ‘A’ was in possession of something that was is not ‘A’s; and
  2. ‘A’ did not have the permission of the owner to have that item.

If the Prosecution can only lead evidence that shows that A had something in his possession that wasn’t his, then they’ve not shown that theft has occurred. Equally, if they can only lead evidence that shows that ‘A’ didn’t have the owner’s permission to have the item, they have not shown that theft has occurred either. Only if they can show (and just now, corroborate) that all parts of the crime have occurred through evidence, can the they be said to have done their job. It is then up for the jury to decide whether the evidence that has been presented to them is reliable enough to establish the guilt. If the Prosecution fails to do this, then it has failed in its job. The Accused person has no case to answer because the potential criminal activity cannot be established from what has been presented to the court. This is what we mean by the presumption of innocence – the Prosecution must attempt to show the accused person is guilty, there is no onus on the accused person to show they are innocent (though if they can that’s usually a good idea too).

Which brings us to today’s happenings in HMA v Coulson. Coulson was charged with perjury in the case of HMA v [Tommy] Sheridan & [Gail] Sheridan, which stemmed from Tommy Sheridan’s defamation action against the News of the World. It was alleged that Coulson perjured himself when he denied knowing anything about phone hacking while on the stand, when it later transpired he did (as was shown in the ‘Phone Hacking trials’ down in England).
Scots Law, as has been shown many times before, is a funny thing. While in England and Wales perjury is handily defined in the Perjury Act 1911, in Scotland it is still an offence defined at the common law, i.e. by the courts. And the development of the criminal Scots Law has led to a slightly different place than down south. IN common with everywhere else we have the requirements that a person:

  • Is under oath (or affirmation); and
  • Makes a statement they know is untrue, or does not believe to be true.

but, in addition, we have a (as far as I can find) unique requirement that:

  • The evidence given was “relevant to the point at issue in the original trial, or relates to the credibility of a witness at the original trial” [SME – Criminal Law (Re-Issue); 18(1)(b) Para 477].

In the Coulson Case, each of these points can be be divided by their responsibilities. There’s no dispute that Coulson was under oath when his testimony was made – that’s not important here. The question over whether Coulson knew what he was saying was true or untrue is one of fact, and so for the jury to decide. The third component, however, is one for the law. And its this requirement that caused the judge to step in on Monday.

The Judge today said, in his explanation to the jury, said:

In 2010, Mr Sheridan had been on trial for perjuring himself when he gave evidence in the civil proceedings in his action for defamation against the News of the World. So the question of relevancy for me was whether the alleged false evidence given by Mr Coulson in that trial was relevant to the proof of Mr Sheridan’s perjury or relevant to Mr Coulson’s credibility as a witness in the perjury trial of Mr Sheridan. You will recall that Mr Coulson said in Mr Sheridan’s perjury trial that the person speaking on a video tape was Mr Sheridan. After two days of legal submissions last week and having considered the matter, I decided that the crown had not led sufficient evidence to satisfy me that the allegedly false evidence was relevant to proof of the charge in Mr Sheridan’s trial or to Mr Coulson’s credibility at that trial.

What this means is that the central matter in the Sheridan Trial was whether or not Sheridan attended a nightclub in Manchester (and to part in various related activities). Coulson (who was called by Sheridan in his defence – after he ditched his legal team that advised him not to) gave evidence that was not relevant to demonstrating that this occurred, and was even disavowed by the Prosecution in the Sheridan Case. We don’t know what the jury would have said if they had been asked to return their verdict – but what the judge is saying is EVEN IF they had said ‘yeah, he knew he was lying’ that wouldn’t have been enough to prove perjury because the relevancy would ALWAYS have been missing.

So, from all this, two sets of questions arise. The first is why did Coulson’s defence team only brought this up recently? Well, it seems that they didn’t. Before the trial began, the defence team appear to have raised a ‘plea to the relevancy’ of the indictment – the legal version of going “Yeah – so what”. The Judge, rightly in my view, decided that in order to assess the strength of the case he had to hear what the case actually was. If this was a civil case, it’s be called a “proof before answer”, the judge saying “I’ll know it when I see it”. In this case, after the prosecution finished its case on Friday, the judge wanted to assess the evidence and make his decision. He did this over the weekend.
He decided that the prosecution had failed to meet all the parts of the perjury test, and so had failed to bring a relevant charge. The defence’s plea to the relevancy was accepted so on Monday, Coulson was acquitted on the basis he had no case to answer. The rules allow the Prosecution 2 days to appeal this decision, but they have not, so everything became official today.

The second question is what this acquittal means. Firstly, and most importantly, It doesn’t mean that Coulson didn’t lie in court. It is entirely possible that Coulson’s pants smoulder at this very moment, but we don’t know that he has. We just know that he did not perjure himself. But it is also important to note that Coulson didn’t “get off with it” on a technicality. It isn’t corruptions or a swizz or a bit of legal magic – it is a contention that the accused person did not break the law. Any defence lawyer worth their salt would have raised the point that acquitted Coulson today. I know that because of a very simple reason: The source I cited earlier on.
The Stair Memorial Encyclopaedia is the Bible of Scots Law. All Scots Law. Every lawyer, legal scholar and law student in Scotland will have access to it somehow. In their firm’s Library, on-line, at University – they’ll have it. And if they follow the citation above, they’ll find the important page. At paragraph 474 in section 18(1)(b) in the Criminal Law Volume (re-issued), they will find the sentence, “To found a charge of perjury the evidence given at the original trial must have been relevant and competent [emphasis added]”. It’s there for everyone to see. It is just as important a part to the Scots Law definition of perjury as the “lying under oath” part is. It is not a technicality; it is the law.

All of this overlooks the fact that, even if Coulson’s testimony were relevant in Sheridan’s perjury trial, and even if Coulson had been found guilty…it would all have been very unlikely to have helped Sheridan overturn his perjury conviction, nor strengthen his case in the News of the World’s appeal in their defamation action. To Use the words of Andrew Tickell (or Peaty to his friends), “Sheridan wasn’t convicted on the evidence of Andy Coulson“.

So, as exciting as all this was…it was never going to lead anywhere meaningful.

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 RightsInfo.org, 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.

Elections, Prime Ministers and their Causes – Part 3

The 2015 General Election is one of uncertainties. Who will be the largest Party? Who will work with whom? Who will be Prime Minister? Will anyone be able to get enough support to pass that magic number of 326 (half the seat in the House of Commons +1) and form a Government? What does it mean if they can’t?
With all this uncertainty, the possibility of a SECOND General Election this year has been mooted.

This week, I want to look at these questions in a bit of detail, combining the Legal Framework with the Political Reality of #GE15. Over the course of three posts this week, I will examine “What causes a General Election”, “What ends a Prime Minister” and “What Creates a new one”, all through a #GE15 lens.

In part 2 we reached a situation where David Cameron could no longer stay Prime Minister, but now we have to face a governmental vacuum. So, “What Creates a New Prime Minister”?


Who, then, could replace Cameron once he resigns? The country cannot be left Prime Minister-less. The Queen (for it is at her pleasure the PM serves) would have to invite someone else to fill the role. According to the definitive guide to such things, the Cabinet Office Manual, that person would be the person “best placed” to command the confidence of the House of Commons. That person, in the current election, is Ed Miliband.
It is important to note that it is not incumbent on Miliband to prove he can command the confidence of the House, merely that he is best placed to do so. In practice, this will be tested when Prime Minister Miliband presents his Queen’s Speech. If that fails to pass (which is a possibility), it will then be clear than he doesn’t command the confidence of the House of Commons and the duty then falls on him to resign as Prime Minister. Who would replace him…it’s hard to tell. It would, theoretically be the (new) leader of the Conservatives – whose Queen’s speech would fail and would have to resign to be replaced by the (new) leader of the Labour party – whose Queen’s Speech would fail…and so on.

All of this is going on without another general election happening, since while the Queen’s Speech is a test of the Prime Minister’s ability to command the Confidence of the House of Commons, as we discussed in Part 1 it is not one of the statutorily defined triggers set-out in the FTPA2011. It then becomes a political calculation for the smaller parties (since the 2 main parties will never support the government of another in peace-time), to decide which side of the fence they come down on.
It would take an MP to table one of the motions quoted above to cause an election and see if the mess sorts itself out – or the House could vote to repeal/amend the FTPA 2011 and we go back Prime Ministers being able to call an election at a time of their choice (though even whether that would happen is a controversial legal proposition).

Bringing all this Together

Attempting to tie all this together then, it is entirely possible that we are in for a confusing and rocky few months after this election. Unlike in 2010, its clear going into the election who’s most likely to side with whom, so when the results come in, the blocs should be easier to make up.
If there are more ‘Anti-Tory’ MP’s (LAB+SNP+GRN+SDLP+RESPECT) on May 8th than ‘Coalition Friendly MPs’ (CON+LD+DUP/UUP) then Cameron’s days as Prime Minister are numbered, and Ed Miliband will eventually be invited to replace him.
However, that could well prove to be the simplest part of the process. Ed would then need to demonstrate that he commanded the confidence of the House of Commons by passing his first Queen’s Speech. He doesn’t need MP’s to just be ‘Anti-Tory’ – he needs them to be ‘Pro-Labour’ as-well. It’s possible that LAB+SNP alone will have enough votes to get Ed into Number 10 – but if the SNP abstain from voting in the Queen’s Speech (which is entirely possible), then it could still fail, meaning Ed might not have enough confidence after all. The SNP’s line that they will “lock out the Tories” isn’t enough in the longer-term; they need to be willing to keep Miliband in for there not to be another General Election.
If they don’t  though, we wouldn’t be bracing ourselves for #GE15.2 quite yet, because there are only 2 ways to hold an early General Election under the Fixed Terms Parliament Act 2011:

  • 434 MP’s vote to hold one.
  • 1/2 of MP’s voting support the motion, “That this House has no confidence in her Majesty’s Government.” and that MP’s do not pass the motion, “That this House has confidence in her Majesty’s Government.” within 14 days of doing so.

Analysing the SNP’s position in all this then, the following is entirely possible:

  • they count AGAINST David Cameron, and therefore would lead to his resignation as PM.
  • ABSTAIN from Miliband’s Queen’s Speech (not wanting to vote against it because of the perception; but not wanting to vote for it because they haven’t got any concessions – which is what Miliband seemed to signal in the TV Debates last week).

They would then have to decide whether to support an election-causing confidence motion. Do they Support the motion, bringing down a Labour government and creating echos of 1979, which they have tried to escape? Do they oppose it, rendering their opposition to the Queen’s Speech a little weaker, and making them look a little uncertain of what they actually want? Or, do they abstain, and risk being made to look missing in action – and risk abetting the collapse of a Labour government, if not abetting it?
The Lib Dems would also have to look at the lay of the land, depending on their numbers. I’ve talked about them being ‘Tory-friendly’, but it’s more the current leadership than the party itself. Whether Nick Clegg is still an MP after May (let alone Lib Dem leader) is still up for discussion – so it’s entirely possible the party my shift to be more pro-Labour, and that may well be enough to see Miliband securely in No.10 until 2020. But even then, that depend on a Lib Dem MP who is sympathetic to Labour – many of whom are unlikely to survive this election – becoming the new leader.

The only thing that’s certain is that the 2015 General Election will not finish when voting does.


See Part 1, “What Causes a General Election”;
And Part 2, “What Ends a Prime Minister”.