Tag Archives: Law

The Next Stage of Street Law.

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

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


A Love Letter to the European Right…

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

Successful Sexy Succession

…or giving un-sexy law some much needed attention.

At the start of the 5th Scottish Parliament, there is an air of a new start for the 9-year-old SNP administration. Reforming the Scottish Education system (with an increase in the school age being suggested by some) and re-shaping the NHS in Scotland with mental health provision becoming a more integral part of the service. These are big, important policy areas. They graces pages and pages of the various parties’ manifestos over the Spring. They are sexy law. Continue reading Successful Sexy Succession

Tax can be Taxing…

…or an empirical study in the use of tax as a behaviour modifier.

I work in a high street law firm and, like most high street law firms, it does the classic ‘little bit of everything’. Criminal Law, Kids, divorce, executry (dead people), civil law, leases – we do it all. We also do a fair amount of conveyancing. {1}

Conveyancing is the buying and selling of houses. In Scotland, only Solicitors can do that. Estate Agents can market houses, and you can arrange your own private sale, but at some point, a solicitors is involved in the missives, the settlement, the mortgage and the Registration of the new Title. They have to be. it’s the law. In my own experience at the firm, I can do the odd thing, but when it comes to the key points – the solicitor steps in a signs their name on the line.

But, being heavily involved in my firm’s conveyancing department – I’ve developed a strange enjoyment of it and, if I may, I’m pretty good at it. I know what needs to be done during the process. But it doesn’t end for me when it ends for the client. You may get the keys, but there is still work to do behind the scenes.
Your new title needs to be registered to give it effect. Your Mortgage (which is an English Law work we’ve imported into Scotland) needs to be registered for the bank. And, whether you know it or not, you have to pay your tax.
Up until April 2015, when a house was bought in the UK, you had to complete a Stamp Duty Land Tax (SDLT) return. Most people paid no or little tax, but a return had to be done. After April 2015, Land Tax in Scotland was devolved (under the Scotland Act 2012) and the Scottish Government decided to change the regime completely and created the Land & Building Transaction Tax (LBTT) to replace the old Stamp Duty Scheme.

Most people will buy or sell a house. Most people, however, don’t pay this tax. Houses under £145,000 are taxed at 0%. Most people don’t even notice. But a return still has to be done. However, in two weeks’ time, there will be a small but significant change made to the regime – the 3% LBTT Surcharge.
While it has been discussed since the end of last year, the law was only changed last week to bring in this change. Now, if you buy a house and, thanks to that purchase, you own two houses, you have to pay a 3% addition tax on the property. {2}
The thing is though, this only applies to purchases on or after the 1st April 2016…and, as I mentioned, these tax changes have been known about (more or less) since December. So, the savvy buyer spotted, as I’m sure you have, a way round this…buy before the 1st of April. This is the issue.

In the next 2 weeks, my firm has 13 settlements. For a relatively small high street firm – that’s a lot. A lot of reports and mortgages and deeds and letters and phone calls and factors and post. In the mad rush trying to beat the 3% Tax, people who know their way about the system, are getting in quick. Those who maybe have a 2nd house on the side for rental income, but don’t make a living off of it, are most likely to lose out.
This has led to a log-jam of sales happening on the 24th, 29th, 30th and 31st March. because there are so many sales, services conveyancers need ready access to have been busy too. It’s created a more stressful situation (and messier desks) for conveyancers than usual – and the sector is not a stress free one to begin with. You are more likely to complain about your house sale than your prison sentence.
It seems odd, I know, to ask for pity for lawyers, but every conveyancer on the other end of the phone I have spoken to has said similar things. It’s become a “top trumps” kind of thing. {3}

What then, is the solution?

When the Chancellor of the Exchequer gives the UK Budget speech, there are always a few minutes of business before the Leader of the Opposition responds. During this time when (inevitable) Andrew Neil chats to John Curtice about something-or-other, a series of votes are taken on raises on alcohol and tobacco duties that will take effect from 6pm that evening. Most people work 9am until 5pm – so there’s very little chance of stockpiling to avoid the rises and, therefore, fewer long queues at the supermarkets.
Could this work for future LBTT changes? Instead of having a 2/3 month long “you know it’s coming” period, could we change to a “too late! It’s already here, manoeuvre”? I picture it working something like this:

  • During the Scottish Budget, the Finance Secretary announces the LBTT increase.
  • Immediately after the speech, there are votes on that increase, laid before the Scottish Parliament by Scottish Statutory Instrument.
  • Any missives entered into prior to 5pm on that day avoid the increase in tax.
  • Any missives entered into after 5pm that day are subject to the increased tax.
  • You pay the lowest rate of tax that applied during the time while missives were being negotiated. {4}

This means that, at most, the “in between times” last for 5 hours and actually allows more transactions to, potentially, be caught by the increase in tax. Winners all round. There are no last minute rushes to pull everything together and it makes for happy buyers, sellers, and (most of all) lawyers!
Infrastructure-wise, most LBTT returns are made on-line, and the system asks when missives were concluded (for a reason I have still not ascertained). It would not be difficult to amend the data entry (while, hopefully, improving the usability of the system overall) to take account of the reduced cross-over period where the date the offer was submitted is a factor.

This proposal suggests a small improvement. A slight one  – but one that would make a real difference to the Legal profession and to buyers and sellers of property in Scotland too. It would need a legal framework to allow the changes to be passed quickly, and also changes to the on-line LBTT system, but there is no reason why with careful planning, this mad rush at the end of the month couldn’t be avoided, and we could have a better system in place.

{1} It continues to come as a surprise to me, and this may be the effect of 5 years studying Law, the number of people I have to say, “I do a lot of conveyancing…[blank face]…buying and selling houses”. Is the term not widely known outside the legal profession?

{2} This is a very potted version of the tax. There are  number of other consideration, but in most circumstances, this rule can be applied and the outcome is correct. If you’re really interested, you can read the Revenue Scotland Guidance to get the full picture.

{3} One solicitor told me he has 21 transactions settling on the 30th and 31st March!

{4} This rule needs to apply for a technical reason. Say you put an offer in the day before Scottish Budget Day and the rate of tax was decreased as opposed to increased. There would be an incentive to withdraw from the sale/purchase, then resubmit the offer again to benefit from the lower rate of tax. At the start of the transaction this isn’t such a big problem – but if it was the week, or even the day, before the transaction (and the tax gain was large enough) there are a whole new bunch of problems this could create, particularly for those getting mortgages.

State Aid for Private Prosecution

The Glasgow Bin Lorry case continued to march on this week as Michael Matheson, the Scottish Justice Secretary, announced that Legal Aid would be provided for the families seeking to bring a private prosecution against the driver, Harry Clarke.

I don’t think the private prosecution will succeed, but I don’t want to swell on the merits of the action itself here. I want to look at the decision to provide state funding to let the families make their case, and specifically, why it is a decision that should raise more questions than it so far has. I might be useful to have Matheson’s statement to refer to:

“Private prosecutions are, and should remain, exceptionally rare in Scotland. However, in light of the unique and special circumstances of this case, which raises fundamental questions that have not previously been tested in case law, Scottish Ministers believe it is in the public interest that all parties are adequately represented.

As such, Ministers have agreed to make legal aid available for the families of the Bin Lorry tragedy.

In line with human rights requirements that anybody facing potential criminal prosecution must be legally represented, legal aid will also be made available to the driver of the bin lorry, Mr Clarke, and to Mr Payne in relation to another potential private prosecution in separate case.

The issue of whether there are exceptional circumstances to justify a private prosecution is a matter for the High Court alone and do not form part of this legal aid decision.

Responsibility for deciding whether or not to prosecute an alleged criminal case in Scotland rests clearly with the Crown Office which has a strong record in prosecuting crime.

The determination is not being made on the basis that Ministers agree that there was any error in law in the decision by the Crown. The Lord Advocate has set out publicly the basis for the decision not to progress a prosecution following the Bin Lorry tragedy.”

In short, the Scottish Ministers have decided agreed that Legal Aid should be made available to the families bringing the private prosecution. They have an ability to do this under s.4(2)(c) of the Legal Aid (Scotland) Act 1986 – though it is unusual, with matters usually being handled by ever solicitor’s favourite body, the Scottish Legal Aid Board.

Matheson states that the reason this extra-ordinary step has been taken is because this of the “unique and special circumstances” of the case, and the fact it asks “fundamental questions” that haven’t previously been raised. My first question would be to ask what are the “special circumstances” and what are the “fundamental questions”?
The jurisprudence behind Private Prosecutions in Scots Law is quite clear with the Carol X  case providing a hand book in itself. In short, there have to be “very special and exceptional circumstances” to allow a private person to bring a prosecution when the Crown has already declined to do so. The prosecution can’t be unfair towards the accused person; must have sufficient evidence and it must be in the public interest to prosecute.
These are considerations Prosecutors in Scotland face delay. Does the case prove? Is it in the public interest? We know, thanks to the Fatal Accident Enquiry that there is nothing the Crown Office didn’t know when it decided not to prosecute that it ought to have known. It seems there are no special circumstances.

What then of “fundamental questions”? The rules for Private Prosecution, as I’ve said, are  not dubious. Whether these particular facts fit into these is a different question, but not one of fundamental judicial importance.
It’s not particularly clear what the victims’ families propose to charge Mr. Clarke with. There can’t be any questions relating to the development of Scots Criminal Law more generally – if only because we don’t know where hey would be coming from.

Unless the Justice Minister chooses to elaborate (and for reasons I’ll discuss in a second, it is unlikely a fellow Member of Parliament will ask him to), we are unlikely to gather any further information from him. So, what could it be?
From the moment the tragedy occurred, it has big news in Scotland. The media and the public have been following the case from the start. When it first became clear that the lorry-driver, Mr. Clarke, had suffered a black out and was not simply reckless, public opinion was firmly behind him. However, when the black-outs were publicly reported as being related to a previously known condition, the public and the press completely reversed. During the FIA, the the right not to incriminate yourself was deemed “170 insults to the dead” and it seemed the only way justice could be done was through prosecution.  The tone was that the Crown office had messed up in deciding not to prosecute and blocking off that possibility – hence the private prosecution.
So, to stand in the way of the Private Prosecution would to deny the families of the dead their day in court. That would not produce happy headlines for the Government only 2 months out from an election.

Matheson makes clear that he isn’t predetermining the case (that is the High Court’s) and that he isn’t seeking to overturn the Lord Advocate’s decision and question the Crown Office. The difficulty going forward, however, is the message this sends out. Given that the idea of private prosecutions is – let’s be honest – pretty new to the zeitgeist, the rules around them are not clear in the public s mind. But now, the government might fund them. Why not give it a go?

The Scottish Legal Aid budget, as I have stated before, is a subject of particular interest to me – as is access to justice more generally. But this year the Scottish Government cut Legal Aid Budget both in real terms and cash terms! Given the strain this will put the system under already, I am not convinced that it is a good use of these public funds to commit – with no clear legal basis for doing so – an undetermined amount of money on a challenge the nature of which is not yet clear, to a decision of the public Crown Office when nothing appears to have changed since that decision was taken.

Nothing, that is, except public opinion.

A Scot on SCOTUS…

…or what may or may not happen and what happens when and if it does.

Antonin Scalia, the most senior Associate Justice on the Supreme Court of the United States (SCOTUS), died this week aged 79. This means two important things:

  1. There is now a seat on the most important Judicial Bench in the world; and
  2. The Judiciary is now a live issue in the US Presidential Election.

The second of these is political – and will depend (theoretically) on the candidates legislative and legal outlooks. But the first raises issues of Constitutional Procedure and legal operation. It also comes the closest America gets to a constitutional convention which may or may not exist, depending on how convenient it’s existence is to the Majority in the Senate.

The Supreme Court and the President

The 3 branches of the US Federal Government (The Legislature; The Executive; and the Judiciary) are established in Article 1, 2 & 3 of the US Constitution respectively. However, despite the US’s love of ‘Separation of Powers’, the President and Congress play a pivotal role in the selection of new Supreme Court Justices.

In the UK, while the Queen appoints new Judges at the Prime (or First) Minister’s recommendation, this is more stuffy Constitutional rules than genuine political process. The reality is that independent judicial appointment committees do the vetting and recommendation. This ensures – as much as it can be – that judges are independent and impartial.
In the US however, the process is explicitly political, with the President and Congress both having key, and invariably politicised, roles to play.

When a spot on the bench opens up, the first step is that the President nominates a person to the Supreme Court. This is his right under Article II, Section 2, Clause 2 the US Constitution which states (in potted terms):

[The President]…shall nominate, and by and with the Advice and Consent of the Senate, shall appoint …Judges of the Supreme Court…

This is usually a high-ranking judge on one of the Courts of Appeal, or other experienced judicial official or legal academic.

While this clause in the Constitution is the only legal rule regarding the President’s power to nominate SCOTUS judges, there is a more flexible political rule in play, the ‘Thurmond Rule’. This stems from the Civil rights says when Senator Thurmond (a Southern segregationist) mounted a campaign to block President Lyndon B. Johnson’s (who signed the Civil Rights Act) US Supreme Court nomination as pay-back. He defined this rule as meaning that no life-time judicial appointments should take place in the latter part of an election year.
This is this that has caused some excitement regarding the appointment of Scalia’s successor. 2016 being an election year, the Republican Majority have attempted to invoke this ‘rule’ (which has no legal standing) to argue Obama should not nominate a successor as the election process is underway. However, while the election will happen on the 10th November 2016 – the winner won’t become the 45th President until January 2017, and with confirmation processes lasting around 2-3 months, this means there could be vacancy on the US’s most important court for over a year! The significance of this is discussed below, but it could well be a political reality, though not a legal requirement.

The Supreme Court and The Senate

Should Obama nominate a candidate, they then face the Senate Judiciary Committee. After (what is almost always) a lengthy testimony, usually spanning days, the committee then vote on whether to recommend the nominee to the Senate or not. A rejection here is not a de jure end to the nomination, but de facto is not a good sign for success, so may lead to a withdrawal and starting the process again.

What really matters is the vote before the Senate. Out of respect for the prestige of the position, a roll call vote is always called. Each Senator states whether they support or oppose the nominee. Theoretically, this only requires 51 votes (a simple majority) and the job is done.
However, especially in these partisan times, the danger is the filibuster. It is possible that, if the opposition is strong enough, the opponents could try and talk out the clock on the nomination process and avoid a vote altogether. Since 2013, most filibusters can be ended by 51 Senators voting to bring it to an end (a “cloture vote”). However, appointments to the Supreme Court are one of the few exceptions, and requires a three-fifths super-majority (60 Senators) to vote in favour.
On the practical level, there are currently 54 Republican Senators and only 46 Democratic-bloc (44 Dems and 2 Dem-voting Independents), meaning that it is virtually impossible for a filibuster to be blocked if it was deployed. This would have political ramifications, as all Congressional actions do, but would be legally doable.

The Supreme Court in the meantime

In the end, if a nomination isn’t made until the next President is sworn in; or the nominee withdraws after the Senate Judiciary Committee; or the Senate rejects him; or his nomination is filibustered out and doesn’t even reach a vote, then there will remain only 8 Justices hearing cases on the Supreme Court – and it’s a key time in US Jurisprudence.

Upcoming cases include cases on voting rights, Union rights and (the most divisive of American topics) abortion. While Scalia was on the court, these cases would be decided and would, most likely, be decided in the conservatives’ favour.
A funny aspect of SCOTUS is, because of the political nature of appointments, is the court is extremely partisan . In most cases, you can predict with 90% certainty that 4 justices will form a liberal bloc (Ginsberg, Breyer, Sotamyor and Kagan) and 4 a conservative one (Scalia, Thomas, Alito and Chief Justice Roberts) with Anthony Kennedy being the swing-vote.
Now Scalia’s seat is vacant, this becomes a 4-3 default, with a swing or 4-4. {1}

If there’s still a majority on the court then, all is well. There is nothing that stops SCOTUS hearing and deciding upon cases with only 8 justices. It is a 4-4 decision which may prove more troubling. There are three consequences to a tie on the bench:

  1. The decision of the court from which the case was heard is upheld.
  2. No precedent is set from the Court.
  3. The same matter may not be re-appealed to the Supreme Court.

In Common Law countries (such as the US), this could lead to legislative-confusion. A No precedent set in key cases, which arise form a particular set of circumstances and haven’t had Supreme Court consideration for years (such as abortion) and it could be some time before they reach the court again. Even if the court agree the matter can be “re-argued”, it can still take months and years before a judgement is rendered.  A no-score could delay the development of much-needed jurisprudence in contentious and vital areas of law.

The ratio

As Toby Zeigler discovered in Season 1 of the West Wing, getting a judge onto the Supreme Court isn’t an easy task. It has multiple steps, numerous obstacles and many pitfalls, which can be terminal to a Presidential legacy…especially one nearing it’s end.

It’s clear that the process of replacing Justice Scalia requires the legal processes, which are clearly defined in the Constitution and show Obama can (and it appears will) nominate a successor, to brush up against the political realities (A Republican Senate, a hung Court, and ongoing Primary election and potentially one of the most polarizing Presidential elections the US has faced in recent times). What will happen is hard to be sure of, but Obama can play it smart, and get either a liberal on the bench, or Republicans to block appointments out of spite.

Either way Scalia, a constitutional textualist who stuck by the words (not the spirit or customs) of the Constitution, would probably agree – Obama can (and arguably must) nominate the (potential) 113th Associate Justice of the Supreme Court of the United States.

An addendum:
There is (of course) another way Obama could appoint a Jsutice to SCOTUS. He could – if he wanted to have fun – wait until the Congress was out of session and just appoint his next Justice. They can only serve until the end of the next session, but it could help solve part of the problem. This is impractical, however, as he would have to wait until around December (after the 2016 Elections – which are looking good for the Democrats so far) and his appointee would have a very limited effect on the actual decisions of the court.
For completeness though, I felt I should add this in.


{1} It’s also worth noting that in any cases Scalia heard and voted on, but whose judgements have not yet been handed down, his vote is annulled – potentially creating retrospective ties.


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]


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.