A Vote of Confidence?…

…or a dissent more important than the decision.

This is one of two pieces written on UKSC Judgements handed down on 17th December 2014. The other, on Greater Glasgow Health Board v Doogan (and Another) [2014] UKSC 68 can be found here.

The Supreme Court of the United Kingdom (UKSC) handed down two judgements this morning that had been heard in the last few months. One was the latest instalment in what seems to be the unending sage over whether Prisoners have the right to vote, with an #IndyRef twist thrown in…and gives an interesting glimpse of the thinking of some UKSC Justices.

Moohan (and Another) v The Lord Advocate [2014] UKSC 67

Full Judgement and Press Summary

The first judgement was that in the #IndyRef prisoners case where Mr. Moohan and a fellow inmate wanted the right to vote on 18th September 2014. This case was unusual in that, since the referendum would be held before the judgement would be ordinarily handed down, the UKSC made their overall decision known (the prisoners did not have the right to vote in the referendum) and the reasons would follow. Today we got the reasons.

The appellants relied on 4 key areas of law, both UK and International, to make their case, none of which successfully convinced the majority of the court that they had a right to vote.

EU Law
The prisoners argued that, since the #IndyRef was potentially also a vote on leaving the EU (since iScotland would not necessarily be an EU member state upon independence), the Referendum was illegal under EU Law, which under s.29(2)(d) of the Scotland Act 1998, would make it an illegal Act of the Scottish Parliament.
This view was roundly rejected by the UKSC 7-0, for two reasons. The first was that there was no guarantee of what Yes vote means. The Draft Scottish Independence Bill (as it stood) would have made all UK-citizens born in  Scotland ‘Scottish citizens’, and therefore no longer EU citizens, but this was not yet set in stone. Both sides conceded that negotiations to define the exact terms of Independence would take place if there was a Yes vote. Even if there was no change it would be the bill that removed EU Citizenship and not the Act that determined the Franchise for the Referendum that would be amenable to review. Even then, the court then noted that EU Law does not confer any right to vote in the first place, so the whole argument was fundamentally flawed.

The International Convention on Civil and Political Rights (ICCPR)
It was also argued that, under wider Internatinoal Law, the ICCPR gave every citizen the right to vote in referendums. The United Nations Human Rights Commission have held in the past that this right applied in Referendums too, even those involving self-determination. The UKSC accepted this argument, but still denied the appeal – why? Because the ICCPR, while the UK is a signatory to the treaty, has not bee incorporated into UK Law i.e. at a domestic level nothing has changed. While in the international sphere the UK has a duty to comply with the ICCPR, at UK/Scottish Level, the Scottish Parliament doesn’t have to and no domestic court can stop it breaking the terms. So while it’s a good point, in reality, nothing is changed.

Common Law Right to Vote
It was then argued that, even if statute didn’t allow prisoners to vote, the UK being a developed liberal democracy, the common law afforded everyone (subject to only essential limitations re. age) the vote anyway as a fundamental constitutional principle. Again this argument was universally rejected.
While it was agreed that the right to vote was a fundamental constitutional principle, it was made clear that this principle was derived from Statute, not common law. From the 1st parliaments to now, the franchise had been extended bit-by-bit by Acts of Parliament (as it seems will happen soon in Scotland) and never by judges. The court saw no reason why it should take such a radical step now, though Lord Hodge did say that were parliament to markedly curtail the franchise, then judges may have the ability to prevent it. This is a bold statement to make given the notion of Parliamentary Sovereignty is still the centre of UK jurisprudence. In the infamous case of AXA v Scottish Ministers, Lord Reed did suggest that in the face of legislation that went against the very concept of natural justice the court may step in, but here Hodge is talking about a defending a statutory concept (the franchise) and not a common law or natural law concept (the rule of law, in the case of AXA). Nonetheless, the prisoners remain voteless.

European Convention on Human Rights (ECHR)
And now I come the main argument – and the first put forward in the case, but last discussed by me because there’s a lot more to say. If any argument was going to succeed, it would be that under Article 3 of Protocol 1 (A3P1) of the ECHR the prisoners had a human right to vote. To understand how the court voted on this (5-2 rejecting the argument), it’s best to have a look at the exact wording of the right:

The High Contracting Parties shall hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

The words are explicit in that A3P1 concerns “elections” regarding the “choice of legislature”. It had preciously been held, in the UKSC and in the European Court of Human Rights (ECtHR) that elections to the legislature does not include any other kind of vote. This includes presidential elections (which are to the executive) and all referendums, however important they may be. The case offered in support for both these proposition was Niedźwiedź v Poland (2008) 47 EHRR SE6. This concerned a Presidential election and a referendum on Poland’s joining the EU. The ECtHR said that the A3P1 did not apply in these cases because neither were elections to the legislature. So the line of reasoning the majority of the court followed was (put crudely):

  • A3P1 concerns elections regarding the choice of legislature.
  • It’s scope has not been extended to referendums before.
  • The #IndyRef is a referendum.
  • Therefore, A3P1 does not apply in this case.

But what is key here is the fact that 2 UKSC Judges (Lords Kerr and Wilson) dissented from the majority view, Lord Kerr writing the dissenting judgement. They were not entirely convinced that previous UKSC an ECtHR judgements were entirely on point given the nature of the 2014 Referendum. Previously, when the courts had ruled that A3P1 didn’t apply to referendums, they were referendums on EU accession, changing the voting system and constitutional amendment. Never has the court had to consider a situation where the vote was, quite literally, choosing  the legislature: Westminster or Holyrood.
Lord Kerr (the minx) threw Lord Hodge’s words back at him from a case re. Prisoners’ right to vote in the 2011 AV Referendum, where Hodge had said, “the nature of the referendum at issue” suggested that A3P1 could not be applied in that case. Kerr suggested, therefore, that this meant there could be a referendum when the subject was such that A3P1 did apply – and SURELY this was it. He argued that previously the provision didn’t apply because previous plebiscites were “purely consultative [in] character and there was no legal obligation to organise such a referendum.” He said that there was intergovernmental agreement to implement the result of the #IndyRef and the referendum had a solid legal foundation (The Scottish Independence Referendum Act 2013). This, along with the fact that political parties had taken such hard-and-fast positions on the referendum, meant the test (which he believed had been wrongly applied in the past) was passed and, the ECHR applied and the prisoners should have the vote.
As it ended, however, Lords Kerr and Wilson were in the minority and the prisoners did not have a European Right to a vote.

So, in the end, the reasoning was much as was suspected. But, in some ways, the dissent is far more interesting than the decision. Lord Kerr makes an interesting suggestion that not just common law and natural justice rights can be protected by the court from a tyrannical government, but even those firmly and solely based in statute, such as the right to vote. This is a brand new idea (and one I’m not entirely certain of), and it will be interesting to see how this develops in the future (if at all). But the big thing was that, for the first time in it’s history, it was seriously reasoned that the ECHR may, in some very restricted circumstances, give prisoners the right to vote, not only in parliamentary elections (which we know it does) but in referendums as well. Whether this point of view is ever adopted at a European Level, we’ll have to wait till the next #IndyRef.


We Have to be Reasonable About Conviction…

…or a response to @DPJHodges in more than 140 characters.

This week, Dan Hodges wrote this piece for the Telegraph. In it, he ‘argues’ that we should lower the standard of proof used in criminal trials from “beyond reasonable doubt” to “on the balance of probabilities”. I am not a qualified solicitor (yet), nor do I wish to be a Criminal Lawyer when I do (Civil Law is where it’s at) – but I do know this idea is not healthy.

Setting aside the fact that there is no solid legal argument in the piece as to why we should lower the threshold in response to low conviction rates, it seems that he has not considered the full reasoning of the proposal.
Every trial starts off on the basis that the accused didn’t do it. That is fundamental – everyone is innocent until proven guilty. Even if you are a convicted murderer and have been accused of murdering again, you are presumed not to have committed the second murder until it is shown you have.
In order to show that you have committed the murder the prosecutor has to prove, beyond all reasonable doubt, that you did. What’s important is that the doubt must be a reasonable one. An unreasonable doubt can and should not prevent a jury from convicting (e.g The accused told us he has a twin, what if we’ve got the wrong twin in the dock?). So what then is a “reasonable doubt”? I’m reminded of one of the funniest reports I’ve read about a criminal trial. It was Vicky Pryce’s trial about taking Chris Huhne’s speeding points and the jury in its utter incompetency asked “What is reasonable doubt.” The judge answered, quite clearly, that it is a doubt which is reasonable. It’s simple – if you believe, on the face of it, you’re not sure whether to accept something as “proven” you shouldn’t.
To go back to the murder example again, this means that (in Scotland), the prosecutor would have to show that:

  • A killed B.
  • A did so maliciously or with wicked recklessness.

and convince a jury of these two things so that they cannot reasonably doubt that they are true.

And there is a reason that we have that we have that threshold. It has become the accepted jurisprudence that it is better for 10 guilty men to go free than to imprison an innocent man. Obviously our justice system is not perfect, but we – generally – are successful in pursuing this ideal. If we lowered the burden of proof required to imprison somebody, it is inevitable that more innocent people are at risk of being (and so would be) convicted. And conviction, for crimes like rape (which Hodges used to attempt to justify the lowering of the burden) almost always lead to jail time. THAT is why it should be difficult to convict somebody.
I sent my friend (who is much smarter than I am) a link to Hodge’s piece. I was at school with him and he too did law (although at Edinburgh), but instead of doing the Diploma and becoming “a lawyer” he went to Oxford to do a Masters (and PhD) focussing on ‘the justice system’ as opposed to ‘the law’. This was his reaction, and I think it perfectly sums up the reason we should have a higher test than “he probably did it”:

I think the argument for the presumption of innocence needs to riff far more on the extremity of the decision to imprison someone. The phrase ‘deprivation of liberty’ is a hopeless understatement of the gravity of the decision. ‘Deprivation of freedom, autonomy and dignity’ might capture it better, but it would need to be less clunky.

And that is it. Deciding to jail someone is to remove most of the basic freedoms and rights we take for granted. When to get up, where to go, when to eat etc are all restricted and dictated in prison. If we are sending someone there, we had better make damn sure we’re getting it right. Or at least, as sure as we can be without breaking the system.

Shortly after he published his piece, Hodges was asked to try and explain his position by the brilliant @NearlyLegal asked him to explain the logic behind his position. And it was on twitter I realised why Hodges and legal-folk could not see eye-to-eye. Firstly, this happened:

and then, Hodges said this:

These showed that Dan Hodges was coming from a completely different place to those he was arguing against. He believes that it is better that all the guilty are convicted even if innocent people are convicted too. I, and the others tweeting him, are of the opinion that it is better that all innocent people go free, even if that means that some guilty people do not face justice. To me Hodge’s position is repugnant with basic legal principles. To him, mine is too committed to principles and not to action. But regardless, proof of guilt “beyond reasonable doubt” has been the general standard for a long time – but that doesn’t make it a relic from the past. There’s a reason it’s stood the test of time.

Happy Appointed Day…

…or why owning land got a little less complicated today.

Say you wanted to buy my complete collection of Doctor Who DVD’s and I wanted to sell them to you (cause being a tech-geek I’ve got the Blu-Rays now). So we do that, but I accidentally gave you my Torchwood DVD’s as well by accident. You would expect, rightly, that you would have to give me the Torchwood DVD’s back because we didn’t agree to sell/buy them and you never paid for them. That’s sensible.
But then, say I wanted to sell you my Scrap Yard. Not my whole scrap yard, just the back 100mx50m plot. But when the plot was being registered, for some reason, it’s been marked in the register that you not own 100mx100m! DISASTER!
The Land Register is always right. ALWAYS! Even when it’s wrong, it’s right. Even if the deed I wrote sold you 100x50m of land, if the Land Register said you actually owned the 100x100m plot you would own the 100x100m plot!
But I can sort this. I can just ask the keeper to change it – like we would swap back the DVD’s. WRONG! Even if I didn’t mean to sell you a piece of land, as soon as it’s registered in the Land Register and you take possession (which can include simply putting up a fence around the land) I’m screwed. I can’t get it back. I can make you pay for it, but since you are a ‘proprietor in possession’ I can’t have the Land register changed back. At least…until now!

As I write we are mere minutes away from the Land Registration Scotland Act 2012 coming into force (or #LandRegistrationScotlandAct2012Day as I have uniquely taken to calling it). This Act introduces a massive change in the way land registration works – and sorts out the ridiculous situation above.
As of today, if the Land Register doesn’t reflect the proper position under Property Law, then the (majesticly named) ‘Keeper’ can rectify the register without caring whether the interloper has taken possession of the land or not. So long as the error is ‘manifest’ (which, helpfully isn’t defined in the act) it can be fixed. Hoorah! Once more I can park my beautiful 1960’s police box in that 100x50m plot so unfairly stolen from me.

This isn’t the only change the Act makes, but it is by far the biggest. Others are mostly of Academic Interest:

  • Instead of using the OS Map to mark property, we will start using a ‘Cadastral Map‘ (which will be based on the OS Map…so yeah).
  • Advance Notices can now be lodged when a transaction is close to completion to protect a buyer’s potential Real right (stopping the terrible ‘Race to Register’; where A could sell to B and then to C, but if C managed to register his right to the land 1st, B’s deed ain’t work diddly.)
  • Lawyers have more responsibility than ever. The Keeper seems to have run out of filing cabinet space and doesn’t want to be flooded with deeds and whotnot, so now conveyancers have to “tell, not show” the Keeper what the story behind the property is and if they get it wrong they are liable to their clients for the mess they cause.
  • To make it even worse, there’s only one-shot to get it right. If the conveyancer forgets to include even the smallest of details, or doesn’t tick the teeniest of boxes, then the Keeper can now reject the entire application and send it back to be completed properly.

The 2012 Act is not a small fiddle with the rules; it completely rewrites the textbook (seriously, Gretton and Steven better get a shifty). It will also (hopefully) speed up the completion of the Land Register. This may seem inconsequential and unimportant for non-lawyers, but it will speed up land transactions in the future, leading to smaller legal bills for buyers (theoretically) and less stressful moving-days for all. It is a fantastic piece of legislation which will also markedly improve the on-line registration system. In fact, the new form (singular) in designed to be completed on-line! The legal profession may well be dragged into the 21st century, and it makes this future lawyer very happy indeed.

So, in the spirit of the season (and twitter habit for bad commemorative poems), I leave you with this:

She sprang to her twitter, while outside there was drizzle,
And away she typed hard in the land of the thistle,
As the new Act came in, and the sky did turn bright,
“Happy #LandRegistrationScotlandAct2012Day to all, and please get it right!”

Be Careful What You Ask For…

…or an unexpected lesson in Statutory Interpretation.

Last night I was in a rage, and just about every other lawyer and legal type on Twitter was as well. And all because of a paper skeleton.

For those of you who didn’t see last night’s ‘The Apprentice’, the applicants (read ‘contestants’) were asked to buy 9 items over the course of the day. The winning team would be the one which, after fines had been applied for any missing items, had spent the least. A brief description of each item, some with specific qualifications, accompanied each healdine. On of the items was described thus:

HUMAN SKELETON Specifications:  - Full-Sized Anatomical Skeleton  - Minimum 150cm tall.

So each team had to get a Human Skeleton which met 2 conditions: 1) It was Anatomically-correct, and 2) it was ‘full-size’, defined as 150cm tall. Simple. Except, one of the contestants (a lawyer) noticed that nothing else was asked. So, instead of doing what the other team did and buying the science classroom staple of a plastic model on a stand, he bought a paper, skeleton which, when constructed, would be 180cm tall.
Come judgement time, Alan Sugar was not impressed by this inventive thinking. Notwithstanding the fact that what had been bought did meet all the criteria, he fined them as if they’d bought nothing at all because it wasn’t what he meant for them to buy. Because of this fine – and this fine alone – the team lost the task and so one of them was ‘fired’ (i.e. eliminated). It was the lawyer, who had spotted the loophole in the first place, that was sent packing. And I was OUTRAGED!

There are many ways to interpret a law or rule, and the one you use can drastically the meaning you draw from it. In law there different approaches, and using #SkeletonGate as an example – lwe can see how they work, and whetehr Alan Sugars decision can be justified by any of them.

The Literal Approach
The first, and most basic method is to take the words at face value and see where you end up. Under this approach, would our unlucky lawyer have survived the chop?

  • Is what he bought skeleton anatomically correct? – Yes.
  • Is what he bought at least 150cm tall? – Yes.

So that seems fine…except using the literal approach would force us to ask one more question, namely:

  • Is what he bought a Human skeleton?

The answer must be no. What he bought was a model of a human skeleton. A human skeleton is not made out of paper. By taking the literal approach, the other team’s effort would also attract a fine too, cause they’re not made out of plastic either. A human skeleton is, believe it or not, made out of bone. But clearly Alan Sugar obviously wasn’t asking them to buy the remains of a person…so there must be another way.

The Golden Rule
The Golden Rule is the same as the Literal approach with one addendum. If, by taking the literal meaning of the words on the page, the result is so absurd that it cannot possibly be what was meant, then you deviate from that absurdity – but only as much as is necessary for a sensible meaning.
So, in this case, it’s clear that Alan Sugar wasn’t asking the teams to buy an actual human skeleton, just a model of one since

  1. That’s probably illegal, and
  2. His actions demonstrated that this was not the case (i.e. he accepted the other team’s model skeleton).

So in this case, how can Sugar accept the plastic skeleton, but reject the paper one? If the material its made from isn’t important, how can it matter? He said that the teams knew fine well what he wanted and that the team should have taken this into account. So…should they?

The Purposive Approach
The final commonly used method of interpretation is the ‘Purposive Approach’. Here the dictionary meaning of the words isn’t as important. They are a guide to what is meant, but not the whole story. You have to look behind the words and figure out what was the purpose of the rule. Why was, for example, the word “above” used as opposed to “on top of”. What did the drafter mean when they wrote what they did? You can use all kinds of things to figure this out, as the aim is to get the intention behind the words, so long as the words themselves can reasonably be taken to capture that intention.
So, then, what did Alan Sugar mean when he wrote the words “HUMAN SKELETON – SPECIFICATIONS: Full-Size Anatomical Skeleton; Minimum 150cm tall”? It’s evident now that he wanted a plastic model of a human skeleton that was at least that height. So that’s that then. The clever lawyer was too clever and went too far trying to outsmart the game…right?
Well, we’re not quite done yet. The word “specifications” might just prove Lord Sugar’s undoing – not because of what it says, but because of what it doesn’t say. Sugar took the time to make very clear certain conditions that had to be met in order for the task to be completed. He specified those conditions and those conditions only. It would be remiss of anyone to assume there were further conditions to be applied, such as colour, girth etc. It would be unreasonable, on the basis of the words, to assume that there was a further restriction. Therefore, by explicitly applying certain requirements that had to be met, Sugar had implicitly said that no further restrictions existed. So the material wan’t important – so the paper skeleton, while not really what Alan Sugar wanted, was a reasonable understanding on the basis of the words of the requirement.

BBC1 viewers last night witnessed a travesty of justice play out before their eyes. On any normal approach to interpreting the task, Alan Sugar got it wrong and unfairly ditched a contestant. On the literal approach, both teams failed to provide a skeleton that was up to spec. and so both should be fined – changing nothing. Applying the Golden Rule, by accepting a plastic skeleton, he demonstrated that what the thing was made of wasn’t important. Even under a Purposive approach, when intention is key, by specifying some conditions, but not others, it wasn’t obvious that the skeleton had to be made of plastic, so the paper one should have still been accepted.
In the end, what happened was obvious. There was absolutely no doubt that Alan Sugar was looking for a classroom skeleton. But he just assumed that everyone would telepathically know that anything else would not be accepted. The lawyer used his legal smarts, realised there was a loophole, and took advantage of it. Alan Sugar didn’t get what he wanted, but definitely got what he asked for. From where I was watching, it looked like he got outsmarted and didn’t like it. I only wonder if he would accept his own argument when it comes to business contracts or leases. I seriously doubt it.

All of this has a serious side to it, of course. The questions of “What does this mean?” and “How will this be understood?” are of utmost importance when it comes to Acts of Parliament (and devolved legislatures). The minister or politician knows what they mean to say, but have they actually said it. It’s poor drafting and lazy assumptions that has lead to the massive tax loopholes that companies and wealthy individuals can take advantage of. The Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012 was and still is rightfully slagged rotten because of its lazy drafting, massively over extending its intended scope and making the Act far too heavy handed. Thanks only to the (technically unfounded) actions of the judiciary has the situation not got out of hand.
So, in the end, last night all that happened was that poor drafting led to an unfortunate elimination on a game show and a few jokes on Twitter. But, at the highest level, what happened last night can be the difference between nothing happening someone committing an offence for the most inane of acts…and make no bones about it, it happens all the time.

If You Play With Fire…

…or why I feel kinda sorry for Nicola Sturgeon.

It has become generally accepted that while Yes lost the #IndyRef, in the end the SNP won. They’ve had a Massive boost in membership, a new leader to replace an increasingly divisive one and a promise of a stronger Scottish Parliament. On top of that, Labour are in turmoil and in the middle of a long drawn-out Leadership contest. What can possibly go wrong? Well…

This video shows three Renfrewshire SNP councillors burning a copy of the Smith Commission Report, which is barely a week old. When the report was released, the SNP were quick to denounce it as a betrayal to the almighty Vow – in a “People who support Independence don’t support not-Independence” shock. That’s to be expected and it would be absolutely astounding if Nicola Sturgeon stood up and said, “Aye, fair enough. We’ll pack it in now”.
But this is different. This isn’t just asking why further powers weren’t devolved, or denouncing the Commission as a stitch-up. This video shows a group of elected representatives burning a publication that is highly political in a (still) highly-charged situation. “The 45” still wear their defeat with pride. The word ‘traitor’ is still banded about freely. Saltires still wave defiantly in front-gardens (although, I regret to report, Duggy Dug seems to have gone to stay in a farm in the country).

When Nicola Sturgeon began her tenure as First Minister, she said that she wanted to unite Scotland. Last week she unveiled a fairly impressive and ambitious Programme for Government over the next 12/18 months. This will take work and supreme leadership, and as leader of the largest political party in Scotland (and 3rd biggest in the UK), she should have the power behind her to do it.
Except, in the 2 and a bit months since the 18th September, SNP membership is up c.250%…and there is only one reason those people can have joined the country’s largest pro-independence party at this particular time, and it ain’t Land Reform. Most of those members want another referendum. forget the Edinburgh Agreement, that’s void now. It’s a fact that amuses me, but 6% of people who voted Yes in September signed a petition demanding a “re-vote” because they thought the referendum was rigged. I am willing to bet that most of these people are now members of the SNP.
We can see that the SNP’s focus hasn’t moved away from Independence – SNPFest 2014 at The Hydro talked about little else. There is a very clear reason for that: the SNP is now a ‘fundamentalist’ party. The pendulum between the Salmond gradualists (who seek to achieve independence over a longer-term by slowly gaining more and more power from Westminster) and the fundamentalists (who adopt a much more ‘Indy-or-Die’ approach) has swung firmly in favour of the latter in terms of numbers. To even suggest that the referendum not be run again, or that independence won’t happen soon is heresy. There is a reason Stewart Hosie addressed the masses and not Keith Brown.

Which all, of course, brings us back to the binder-burning councillors. I am not outraged at what they did. I am not appalled, or disgusted, or shocked. I’m just stupefied. Four Elected representatives of Scotland’s governing party had the following though process and believed it to be perfectly normal:

1) I could burn a copy of the Smith Report outside Council HQ.
2) That would be a good idea.
3) I could put YesScotland and SNP stuff around it.
4) I’ll need to get someone to film it though. Put it on YouTube.
5) Where’s the lighter?
6) Nothing can possibly go wrong.

It’s incredibly obvious what Nicola Sturgeon should do with the people involved. They should be ‘sacked’ from the party. They should be denounced as silly people who do not represent the official views of the SNP and their actions are not condoned. Sturgeon should do that – but could she? These councillors (who are, worryingly, pre-#Indyref members) probably represent the views of many, many members of the party. Can a new leader risk slapping down this fundamentalist faction so harshly so soon? This, not government policy, could be the first big decision of her leadership.

Personally, I think she should go for it and stamp her authority all over the party: Those who make trouble, pull stunts and denounce everyone who disagrees with the SNP line as traitors are not welcome. There wouldn’t be a rebellion, there’d be a realisation! What a signal that would be, and it would prevent so many problems down the line.  Remember the UKIP guy who said that silly thingno the other oneNO, the other oneNO THE OTHER OTHER ONE! Just as UKIP have become the “We Could Never Say This in Any Other Party” Party in England, the SNP risk becoming the “FREEDOOOOM” Party – an image they had to do so much to successfully shake off. If Nicola stamps down now, there is a chance people will listen and she will regain the momentum. If she hesitates, the pendulum will swing too far to reclaim, and the fundamentalists may well have their time in power.

I am pleased to report that for the first time I came up with 2 potential titles for a blog post that I was happy with. In the end, I went the one with more angles, but I reserve the right to switch it to “The Smith Commission Heats Up…” at any time.

Solving Legal Aid…

…or why I don’t know why I chose to study law, but know why I want to be a Lawyer.

I can’t remember why I wanted to study law. I know I’ve wanted to be a lawyer since 10 or 11, but I have never been able to remember that moment when I went, “I, Paul Cruikshank, want to put on a wig and a cape and argue why I’m right”. When I qualify, I’ll be the first lawyer in my extended family, so it wasn’t a case of ‘…my father before me, his father before him…’. It just, happened. My parents don’t remember either. They’ve not been able to point to the terrible playground injustice that ignited the fire in my belly. As unsatisfying a chapter in my memoirs that story will be, it’s the truth.
But I still chose to study law come my Sixth Year at school because law was what I wanted to do…for whatever reason I wanted to do it. I figured that, since there was a reason once upon a time, I would eventually re-discover it, so it’d be fine. But being honest, I don’t think I have. I don’t think I did find the spark that lit the legal flame in the pre-pubescent me in the delict lectures or company law tutorials.

I suppose the reason you start doing something is less important to the reason you keep doing it. At the start of 2nd year. I started volunteering with Drumchapel Citizen’s Advice Bureau, and whatever reason I had for deciding to study law, I had a reason to become a lawyer. For the first time, I experienced first-hand what I was taught in school. I saw people who had nothing and were being asked to live on less.
And then it got worse. The Under-occupancy charge (or the Bedroom Tax) was introduced, meaning people didn’t receive full housing benefit if they had a ‘spare room’ (which wasn’t always ‘spare’). This meant they couldn’t pay their rent since, inevitably, they had no other income, and finding one wasn’t an option. The UK government introduced a manifestly unfair policy and, until very recently, the Scottish Government  – while having the power to mitigate these effects – did nothing. This inaction led to mounting rent arrears and so eviction became a very real threat. This, I knew, was just plain wrong, and I realised that I wanted to work to make the system fair and just. I to use what I knew as a lawyer to help everyone who found themselves in these situations.

The issue is that I can’t do this for free. I need money to live and, most people who have to rely on social security payments to survive are unlikely to be able to afford a lawyer. But that’s why we have Legal Aid; to make sure that everyone has access to the justice system. But, like all government funded projects, Legal Aid is facing severe financial pressures. In 2011, the Scottish Government began a review of Scottish Legal aid and just this month, The Law Society of Scotland (LSoS) released its discussion paper to set out is view on how the system should change. It is deeply concerning.
The LSoS suggested in their report that:

…the following areas being removed from the scope of civil legal assistance:
– Breach of contract
– Debt
– Employment law
– Financial only divorce
– Housing/heritable property
– Personal injury (with the exception of medical negligence)

These changes would create major obstacles to the most vulnerable in our society accessing the court system and making their case effectively. Consider the case I set out above. If Civil Legal Aid wasn’t available to those facing homelessness, who would be there to make their case? What about the expectant single-mother who’s hours have been cut at just the right time so her employer doesn’t have to pay her full Statutory Maternity Pay? Who represents her at the tribunal when she can’t afford to pay, and her knowledge of the law isn’t enough for her to go on? Both these cases (taken form my own experiences) would be removed from civil Legal Aid under the LSoS proposals.

According to the LSoS, these areas can be:

easily and properly be provided either by the advice sector or on a private client basis through a range of funding options including speculative fee agreements, loans for legal services, and payment plans involving deferral or instalments.

This suggestion, while theoretically viable, ignore many practical issues that make these suggestions unworkable. Foremost among these is the fact that the advice sector is already underfunded and overworked as it is. Attempting to increase the scale of its representation work could break it. The other funding options also overlook the reality that Law Centres, which provide legal assistance to the most vulnerable, are already working on a shoestring budget, and speculative fee agreements (No win, No fee) could decimate the already empty landscape.
My fear is that the LSoS proposals would make the system of access to the Civil Justice System fundamentally unfair in two ways. Directly, it would remove support to the most vulnerable, who overwhelmingly use the justice system to prevent their homelessness, protect their rights as workers and seek a fair deal with their creditors. This means that these people will be failed by our justice system and will be denied a rightfully deserved day in court. Indirectly, this proposed system would stretch already thinly-spread resources, meaning the gaping hole left by the “Legal Aid Gap” cannot be filled. Even those that try and make it smaller will struggle, because the alternative funding options just can’t work in the’free’ Legal Advice sector without draining already scarce resources.

If LSoS’s proposed Civil Legal Aid structure were adopted, making sure the most-disadvantaged in society could access justice would be harder than ever (and it’s not a walk in the park just now). Last week, the Scottish Association of Law Centres, led by Govan Law Centre’s Mike Dailly,  published their response to the Discussion Paper. My concerns about the proposed system are their concerns. I’m not a solicitor yet, but I still strongly support the position the SALC takes in its letter – because we must ensure their is fair access to justice for all.

I know why I want to become a lawyer – to help those that need it and to fight for Social Justice through the legal profession. The only way to do that is to make sure that its not just those who can afford a lawyer can enforce their rights. For them, justice in enforcement of a debt. For the least well off, it may well be a matter of staving off homelessness. Unless the future of Civil Legal Aid can be protected, the Civil Justice System in Scotland will become an unfair, unjust place for those without money – and it is the job of the profession, future lawyers (like me), and LSoS itself to make sure that doesn’t happen.

Free is not Cheaper…

…or why I want the Scottish Government to burden me with Student Debt.

As Nicola Sturgeon took over the reins of the SNP at the weekend, she declared that now they, and not the Labour Party, were the party of social justice in Scotland. In support of this, the abolition of tuition fees for Scottish Students in Scotland. The Labour Party opposed this, and so showed their true colours. They wanted students to pay their own fees, and so seemingly barred the poorest from enjoying Higher Education.

The logic of no Higher Education fees are obvious. No debt looming over them for the rest of their life. This in turn, would encourage more people from families with no University history (such as mine) into Higher Education, and so broaden their horizons. These people are then more likely to be able to fight their way out of poverty, driving up living standards. Everybody wins!
Or so it would seem , except that fees are just one aspect of the cost of university living. There are many other costs that must be paid to go to Uni. There’s travel expenses, for example, which can be expensive – but no support is specifically available for them. The same with rent, books and study materials (which if you are a law student can run into the £100s of pounds a semester) and other living expenses as they appear. The only support available to meet these for most students is a student loan of between £4,750 – £7,500 a year, depending on household income. For a student living away from home this is not a lot to go on, and for the poorest student – with perhaps little support available – this could be a greater disincentive than tuition fees.
What’s key to remember is that after a student graduates, debt is debt. Whether it comes from tuition fees or living expenses; is owed to the government or the bank; debt it debt. So a promise of “Free Tuition” is only good and useful for students from low-income backgrounds if it can be backed up with support for living costs – which it clearly does not.
What it does do, however, is offer an extraordinary level of support to those from wealthy households. Indeed, a February 2014 report by the Centre for Research in Education Inclusion and Diversity stated that:

There is only one significant group for which it is clearly accurate to describe the Scottish system as the best in the UK, which is the most well off, provided they study in-country. [p.57]

This is a damning claim against the truism that Scotland’s University funding system is the “fairest” in the UK. But when you think about how are system works, it makes sense. By focusing on providing free tuition, everyone – low, medium and high income students get a £3,000 debt relief. But by abolishing grants and limiting the availability of bursaries, the free support once available to low-income students is reduced, leading to a reliance on loans – and thereby pushing up total debt levels upon graduation. The same report estimates that a low-income students will leave with c.£20,000 total debt; higher-income students having no debt at all. The system we have does not work.
Not only does it not work, but it doesn’t work at great cost. Since 2011 Scottish colleges have faced unprecedented cuts, with over 100,000 students disappearing, along with 7,000 staff. Colleges are another route to extended education, most often used by those from low-income backgrounds or with no family history of higher education. Therefore, the Scottish Government have been funding £0-debt-graduations for rich students by cutting services most often used by lower-income families. Not progressive at all.
Similarly, postgraduate students have also suffered. Turning to what I know, the Diploma in Professional Legal Practice (a compulsory qualification for solicitors) used to be funded. But now, where grants once stood, student loans for only half of the cost have appeared. This means that any aspiring lawyer of tomorrow has to find c.£3,000 to fund their Diploma from other means. And, to put it bluntly, it’s more likely that the daughter of a lawyer will be able to ask their parents for the money than the son of a shop-worker. The effect this is having on those from “less privileged backgrounds” entering into the profession is already being noticed, and it is not a small one. The same issues apply to almost all aspects of postgraduate education i.e. the only method of funding is a loan, which does nothing to remove the overall debt burden at the end of Uni life. If social mobility is the aim, it is a long way off being achieved. In the end, the tuition fees of rich student’s undergraduate degree are being paid by the grants funding once given to postgraduate students from low-income backgrounds. The system is simultaneously on and off its head.

So, how do we solve this? One way would be to make that ever popular political decision that we should raise taxes. This would mitigate the effects of cuts to college places as much as is possible, and with new tax powers coming to Holyrood next year, it’s a possibility. However, it’s unlikely the ‘progressive’ SNP would raise taxes, especially given the 9 year long Council Tax freeze Scotland will have experienced by the time of the 2016 election.
The only other option is to accept that rocks will have to melt in the sun and some level of tuition fee is introduced in Scotland. This initially seems unattractive, but considering the case above, it is clear that the “no tuition fees for anyone” approach is not working. Introducing fees (that aren’t paid up-front) would allow money currently funding richer students’ undergraduate degrees to support more students from lower-income backgrounds, in the form of bursaries and grants that will actually reduce the overall debt level upon graduation. Support can be kept in place to meet tuition fee costs for less-privileged students, but by having those that can support themselves do so, we would be able to offer even more funding to those who don’t have that luxury, ensuring that they have a genuinely improved access to higher and further education. And, even better, it would tackle final levels of graduate debt, by replacing loans with grants.
Free Higher Education is a admirable aim. But it requires funding, and this isn’t in place – and doesn’t seem that it will any time soon. So we need to look at the reality of the situation, and while “Free Higher Education” is a brilliant headline, it masks that reality. It masks the cuts to further education that have been made to fund the policy. It hides the reduction in postgraduate support that has occurred, while undergraduate tuition fees are still paid for all. And, most importantly, it ignores the fact the grants once available for living costs and travel expenses are now replaced by loans, meaning that lower-income students are now getting in to debt just studying for their “free degree”, while their richer friends can rely on their parents helping them out. So, what I’m really saying here is, Nicola Sturgeon, GIVE ME MORE DEBT because I currently live at home and while my family are by no means rich, we’re not poor. All going well – I’ll be able to repay you in 20/30 years time. Others aren’t like me and we should be doing more for them. That’s what “progressive” is all about.

Selling the on-line method…

…or why I’m very happy my dad has finally adopted a smart phone.

It’s been an exciting time in the Cruikshank house-hold. My dad, after years of holding-out, my dad has finally adopted a smartphone. I say ‘adopted’ since it’s my wee brother’s old one. A hand-me-up if you will. I didn’t think it would last. It’s much larger than the Nokia he had before, and he’s never been a fan of touch-screens (he doesn’t like the fingerprints). But just tonight, he was snapping pictures and texting sending them off. He even downloaded the BBC News app after I told him it ‘bing’s when there’s a major news story. He is now, after all but kicking and screaming, firmly pro-phone (on condition only 6 people in the world know his number). He’s even doing mobile banking! Such advancements.

I’m not a lawyer yet, but already I’m getting the impression that the legal profession, particularly Scottish Conveyancers, are very much like my dad in the Nokia days. It just doesn’t see the point of it changing a system which appears to be working perfectly well. There have been a few I’ve noticed or been told in the last few months that seem to make this clear. I’m prepared to admit that someone my age has never known a time without a computer in the classroom, but I am not intrinsic “anti-paper” – I am consistently the only person in the lecture theatre taking notes on a non-prefixed pad. I just don’t get the hesitance to go on-line, particularly in the world of property conveyancing, where there is so much repetition and computer systems would help smooth the process for both solicitors and clients.

Take, for example, the ill-fated to ARTL, the on-line method for land registration. I can already hear the conveyancers wince. To me this idea seems brilliant! Who needs forms and forms of stuff that have to be written, printed and posted – why not just do it on-line? Yet, uptake on ARTL was dismal. Only 13 of 32 Local Authorities took it up, Lenders had been hesitant to fully participate; Solicitors even more so. A few of the tutors have said that ARTL was slow, clumsy and cumbersome, so was doomed from the start. ARTL will be put out of its misery later this year, and will be shut down. My issue with that is that the paper system, to me, seems just as slow clumsy and cumbersome, possibly even more so. In what other system would Form 1 not be followed by a Form 2, but instead be accompanied by a Form 4 and then lead to a Form 10. MADNESS I TELL YOU!!! All these forms, of course, asking for similar information, relying on all previous information being correctly processed in the first place. If there were major problems in the system (and I don’t doubt for a second there were), investment in the system is the way to go, not just tossing it to the side. The real issue, I think, is that a majority of the profession just didn’t want to use the system in the first place, and so found the reason not to. It’ll be interesting to see how the new on-line system of  Land Registration is received later this year.

It’s not just registration that the Land Registration (Scotland) Act 2012 will be changing. It will introduce the possibility of conducting missives on-line. Instead of waiting for letters to be posted and received, on-line missives allows terms to be delivered there and then. Not only does this allow us to do away with fax machines (which are terrible inventions whose existence is unjustifiable in the 21st century), but if can solve all the recent questions over “what counts as delivery” most prominently raised in Park, Petitioner [2009] CSOH 122. If the profession has a chance to do business on-line, I can see no reason whatsoever why we shouldn’t take it. Even from a client service perspective, reducing waiting time and worries included in buying and selling houses must be a good thing. I fear, however, given the reception ARTL received, that up-take will be slower that hoped, and that the DX posties don’t have to be quaking in their boots quite yet.
I don’t mean to pick on conveyancers (in fact I’ve really enjoyed the subject so far), but it seems to be the best example of the legal hesitance to move away from what we know. It was only last week that I found out that Scottish conveyancers still use cheques as the go-to means for paying client costs. CHEQUES! I have had an adult bank account for 5 years and in that time sent exactly one cheque, and even then that was because internet banking was just not an option. My tutor justified them saying that it allows full control over the buying and selling process. So, for example, someone doesn’t want to have money ‘leave’ their account to buy a new house before they’ve had the money come in from selling their old one. By using cheques you can ask the other solicitor to hold of cashing until funds are available.  But with internet banking (which is incredibly secure now-a-days) you’re still able to carefully regulate when money leaves the firm’s client account and you don’t have to rely on the other solicitor’s secretary to remember not to cash the cheque yet. My tutor also said that with on-line transfers you never know exactly when money will leave the account: it might be instant, within minutes or take until the end of the business day. That’s true, and a fair point to make…but cheques can take up to 3 days to clear! I’d rather know what’s happening to the hour, and not the day. Plus, and I can’t stress this enough…cheques are on their last legs.  Sure, their 2018 death-date has been postponed due to public outcry (and I can take a guess as to the demographics of the outcriers) – but it is surely only a matter of time before they are done away with completely. My tutor mentioned that the English solicitors laugh at us for still using cheques…and I couldn’t help but think to myself “Rightly so”. But hey, we’ve been using cheques for years and there are few problems with the system, so why change?

I think that’s the nub of the problem. The way things have always been done is that missives were sent by post (and kinda by fax), were concluded in the same way, title was registered when you sent away the forms to the keeper and all the fees and prices were sorted when cheques were handed over to the other side. This system works, of course it does, and lots of people are happy enough to keep it that way. My dad was quite happy with his little Nokia, but now he realises that, while it took years of encouragement and repetition, his new phone with all its bells and whistles (quite literally) is so much better than he had thought. The Scottish legal profession has to realise soon that the Nokia system just isn’t going to cut it in the 21st century.

The Smith Commission

…and a ‘Thank You’ to our continental and international neighbours.

Last Thursday I e-mailed my submission to the Smith Commission whole day before the deadline. I’m sure my teachers and professors would be proud. You can click that link to read it if you are interested. Compared to most, it is quite reserved and limited, and I’m sure my views will change in the coming weeks and months as I’m told why I’m wrong, but for the moment, this is what I stand.

Also, I’d like to thank the 5 Germans and 7 Americans who were interested in reading about where I thought the Scottish Labour Party should go. I don’t know why you are interested, but I appreciate it none the less. The contest – or contests, now that the deputy position has opened up – hasn’t really begun yet but I am sure I’ll have something to say when it does. But just now,I’ll repeat what I said when I saw that poll.

I stand by that all the more 3 days later.

Goodbye and Thank You Johann…

…or why Scottish Labour must be both ‘Scottish’ and ‘Labour’.

This weekend, Johann Lamont announced she will be standing down as leader of the Labour Party in Scotland. Before I say anything else, as a member I want the thank Johann for everything she did while leading the party. She held the party together after what was a (well-deserved) routing in 2011 and then led the party through the 2012 local election, holding Glasgow, and then (since everyone seems to have forgotten) WON a referendum on Scottish Independence. There were moments I cringed, and moments when speeches could have been better phrased. Yet, week after week, she consistently held her own against Alex Salmond at FMQs.

For what you did, I thank you.

But looking to the future, there are two major challenge Scottish Labour faces. The first is that is can not longer be afraid to be Scottish Labour. The second is that it must be allowed to be Scottish Labour.
It seems to me that recently, at both UK and Scottish levels, the Labour Party has been afraid to shout about what we stand for as a party, and instead watered it down to what we think people want to hear. At a UK level, our recent attempts to “tackle immigration” are a great example of this. A Labour government shouldn’t seek to tackle immigration, it should welcome the social, economic and poltical advantages immigration brings. but we don’t because we are concered about those who have “concerns about immigration”. These people fall into 2 categories.
The first are people who are genuinely concerned about the strain additional demand will place on out schools, hospitals and infrastructure. The Labour answer to these concerns is to say we will invest more in public services, and show how immigration is still a net positive to the country. The second are people who’s problem is with immigrants. We can’t help them, but still act as if we can see their point…I have to admit I can’t. We have to be brave and honest enough to say so.
The same issue exists in Scotland too. Whoever is elected leader in December cannot be afraid to challenge the assumptions we have allowed the SNP to establish. We are right to oppose unfunded universal free-prescriptions. Prescriptions for those most in need (the poorest, the oldest, the youngest, the chronicly ill, the disabled, the unemployed) were free before the SNP decided to make them free for the middle class and the rich. But we forget to say that’s because it costs the NHS c.£60million a year that could be spent on medical treatments and staff. Without that last bit we sound like cost-cutters and not a party that wants proper funding of public services.

And to do this, Scottish Labour must be given room to be SCOTTISH Labour. We may have won the IndyRef, but Scottish politics has changed forever. For the next leader to address this dynamic, they need to be able to make decisions (1) for the whole party in Scotland – I’m looking at you MPs; and (2) without the fear of a UK Labour veto.
I don’t think this means we need an “Independent Labour Party”, but we do need to mimic the current state of devolution within it. Policy making is near-enough separate, but leadership are still a matter of the UK party. That’s why the Scottish General Secrety can be sacked without the Scottish Leader being told: the UK level still controls structures. This clearly can’t go on.
In that brief time Wendy Alexander was leader, she famously challenged Alex Salmond to “bring it on” and hold the referendum before 2011.  Slowly but surely, this stance drifted backwards, and I would not be surprised if it was a UK ‘suggestion’ to drift. If rumours about Bedroom-Tax related orders are true, it only confirms that we need to be trusted to make the right call for Scotland, even if it makes the UK-Wide party a bit more uncomfortable. Part of this, of course, is that the leader of Scottish Labour has to be – in practice and not just name – the leader of the WHOLE of Scottish Labour (again, looking at you MPs).

Lamont’s leadership of Scottish Labour was successful one. In a time where we didn’t have a constitutional argument in the way, I am sure that would have been electorally successful too. But alas, circumstances, and it seems ‘comrades’, conspired against a woman who is committed to improving the lives  of the people she represents. I hope our next leader, whoever it is, is just as committed to those people, and much more ready to shout from the rooftops and soapboxes that we are Scottish Labour.

This post also appears on Labour Hame, a grass-roots run and organised Scottish Labour site. With thanks to Andy Todd for letting me use his lovely ‘graph’ in the banner.

Other people who have commented on Johann’s resignation and replacement include:
Duncan Hothersall:- Three things
Ian Smart:- Desperate Days
 – Jackson Carlaw MSP:- Send for Murphy

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