Tag Archives: Scottish Parliament

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.

New nurses are sexy. More teachers is sexy. You can have big debates about class sizes and waiting times and what they are or should be. Police numbers and how big thir guns are are sexy. People know what these areas are. We have all, more-or-less, come into contact with them all at some point. They have grand theories about them. There are entire professions dedicated to the School, Police and Health services across the world. They educate people; they protect people; the make people better. The people are sexy – so the system is sexy – so the political and legal debate is sexy.

Dead People are not sexy. Succession is not sexy at all.

If you were to die tomorrow…what would happen. This isn’t some spiritual examination, I talk much more materially. Your money, your house, your stuff…where does it go? It as been a constant source of worry and amazement to me just how few people know the answer to this question. But then I think about it – and I understand why.

Say, Mr Person, you died tomorrow with the convenient (post-IHT) sum of £250,000 in your Bank Account, a house worth £500,000 and £29,000 of furniture in that house. Quite a specific value of furniture you may think, but bear with me. Who gets it, furniture et al? Your spouse? Your kids? If only you’d gotten round to writing that will…but you never did.

Well, it depends. If you are married (or civilly-partnered) then your spouse automatically allows let us consider from the simplest to the most complex:

If you only have kids, then its simple. Your kids (equally among them) will divide the value of the estate between them and that’s that. How they divide it is up to them – but so long as it’s evenly split, then there are no issues.

But, if you have a spouse it’s not as straight forward. You see, ask the ‘reasonable man’ on the street who gets your stuff when you die – 99% of people would say, “your wife/husband”. However, this is not automatically true. There is a list, in the Succession (Scotland) Act 1964 s.2, that tells you the people who get your stuff when you die. You start at the top of your list and, if no-one in that ‘class’ of people exists, you move down. The list is this:

  1. Children
  2. Parents and Siblings
  3. Siblings
  4. Parents
  5. Spouse
  6. Aunts and Uncles
  7. Grandparents
  8. Siblings of Grandparents
  9. Great-Grandparents
  10. Siblings of Great-Grandparents
  11. Great-Great Grandparents
  12. Siblings of Great-Grea…etc etc…turtles all the way up.

So really – your Spouse isn’t even a factor in this list until you have no children, siblings or parents. Would you have guessed that? Chances are, probably not. Children, maybe, but parents? Siblings? Parents and siblings? But even then IT’S STILL NOT OVER!

Because your spouse does rights to your estate, prior rights. Literally, they are called Prior Rights. Before we get to the List of Succession, your spouse is entitled – but by no means compelled – to a certain value of your estate. They are entitled to:

  • your interest (usually ownership) in your dwelling house (if they lived in it with you) if it is worth £473,000 or less. If it is worth more, the financial equivalent of £473,000.
  • £29,000 worth of furniture and plenishings in one house – and only that house.

They also have a further financial claim on the estate, but that  depends on whether you have children or not:

  • If there are children, they can claim £50,000.
  • If there are no children £89,000.

So…where are we now:

  • Your house is worth more than £473,000, so that means it doesn’t automatically pass to your spouse. Instead, they would gather a financial claim instead.
  • Even though they can’t get the house, they can still get the £29,000 furniture – so that’s that simple.
  • Finally, they get the £89,000 since you have no kids.
  • So, in the end, there’s a £562,000 financial claim and £29,000 furniture to the spouse and a £89,000 financial claim. Simple right…

…NO! Because see that Financial claim at the end…that’s not just cold hard cash. that claim is divided, proportionately, between the heritable (houses and land) and moveable (everything else) property in the Estate. So – in this case – that means 53.8% (£47,901) comes form the house and 46.2% (£41,099) from the bank account.
So when you add all that together, your wife can claim a total of £520,901 against the movable estate (so can take the house after all) and then can claim a total of £41,099 cash – and that all important £29,000 furniture.

So with the house spoken for – what about the remaining moveables, money and furniture. We finally get to the list above right. If you have children they get it…but you don’t, so your parents get it…but they’re dead, so your siblings would get it…yes, that means that sister you never loved and haven’t spoken to for years and ruined your wedding. It’s not pleasant, certainly, but it’s at least a conclusion…right…

NO! There is another set of rights that come into play before we get to the list…Legal Rights. They come after Prior Rights – but before the list.

Under Legal rights, your spouse has a further claim to your estate (the jus relicti for your husband and jus relictae for your wife), as do your children (the legitum) if there are any. If you are married, but have no children; or if you have children, but no spouse, then all your children may share in one-half of your moveable Estate. If you have both a surviving spouse and surviving children, then each is entitled to share in 1/3rd of the estate (1/3 to the spouse and 1/3rd among the children)[1]. So where does that leave us:

  • Well, after the Spouses prior rights have been dealt with, you have £359,001 of moveables (money) left. We’ve said you have no kids. That means we divide that into 2 halves of £179,500.50 each.
  • 1/2 goes to the spouse.
  • And you have 1/2 left over…

…Which THEN (and only then follows the list)…and ends up in the pocket of that sister that thought your Engagement Party was the best time to announce her divorce.

So…in the end of it all:

  • Spouse: The House, The furniture, and £220,599.50 of the cash.
  • The Sister who decided your son’s birth wasn’t as important as her dog’s pedicure: £179,500.50.

Isn’t that wonderful…and it only took us 1,200odd words to get there.

This isn’t an outliner case. This is completely possible. And this scenario could throw up real problems. What if you had 2 kids? That would mean your Spouse could only claim £499,000 against the house – £1,000 short? The rest would pass to the kids, which is fine if you live in a happy family that loves each other. But what if the kids of your first marriage loathe the souse from your second and they don’t play ball…that can lead to difficult and unsavoury conversations.

If only you had written a will. That would solve all the problems…right?

Well, dear reader, as you may have come to expect, the answer is no! Prior Rights wouldn’t apply any more – meaning that your house is yours to deal with as you please – but Legal Rights would still apply, so your kids if you had had any (who, for all I now, might have prompted you to write a will purely to write them out of it) could still share 1/3rd the £500,000 cash and, to make bad news worse, £29,000 worth of furniture.

What I’ve tried to show here is that Succession Law, particularly when someone dies and hasn’t left a will, is messy and confusing. But, more than that, people don’t know what will happen to their belongings after they die. How many people would have guessed that the goldfish-murdering sister would have got any of our stuff when you died? Who would have thought that kids from your first marriage could theoretically own part of your house you and your new beloved bought together. Who actually has a clue what is going on.

Succession Law is not sexy…but it is important and it is a mess. It needs to be reformed and simplified.[2] Lets start at the beginning of this Parliament, so that, maybe, we can figure out what we want by the end.


 

[1] This fact, that kids who you specifically wrote out of your will could still inherit something anyway prompted him to come up with a scenario in which he would have kids, write them out his will, fall out with them, then, in his later years, re-connect with them and have a few good years together and convince them, when he was on his death-bed, to help him commit suicide so it satisfied the definition of murder – so would then make them dishonourable heirs so they could not inherit – purely so he could find a way to get round this rule.

[2] I am not one of those “something must be done but do not ask me what” types. I once, as a side-project in my 1st Year of my LL.B attempted to re-write the Succession (Scotland) Act. Unfortunately, my efforts have been lost to a corrupted, un-backed-up hard drive.

 

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.

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.

‘Higher’ Law…

…or “Constitutions on ketamine”.


So, The Smith Commission. Remember that? One of the recommendations in its Final Report was that:

“UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions. ” [para 21]

This was, in turn, translated into the Draft Scotland Clauses 2015 (what would become the Scotland Bill 2015) in s.1, which would insert the following into the Scotland Act 1998:

(1A) A Scottish Parliament is recognised as a permanent part of the United Kingdom’s constitutional Arrangements.

This immediately attracted comment as an odd position. On one hand, it was legislating for the permanence of the (or, indeed “a”) Scottish Parliament, but on the other it was absolutely useless. It is a fundamental principle of Parliamentary Sovereignty that Parliament cannot bind its successors. Any law, no matter how important, can be undone by a majority of Parliament voting to repeal it.
This means that potential the proposed ‘permanency clause’ is legally nothing more than a legislative ornament.
This is what the Law Society of Scotland were getting at in the statement they released yesterday. The current LSoS president, Alistair Morris, said that in this respect, this was merely a “…political declaration than any matter of law…”, precisely because a parliament, at present, cannot bind its successors. He suggests that, while there may be some alternative form of words that could work, there may be a more fundamental problem to enshrining the Scottish Parliament in the constitution, and that to overcome it we would have to consider some form of “Higher Law” :

Indeed, the concept of the sovereignty of the UK Parliament may, at least in legal terms, put a limit on the ability to deliver the intentions of the Smith Commission in this area.

Across the Irish Sea, it seems that our nearest neighbours may have taken the ‘Higher Law’ idea a bit too literally. Yesterday their Court of Appeal released the judgement in a constitutional case which, in a round about way, lead to certain drugs being legalised in Ireland for about 24 hours.
The material facts are that, in 1977 the Irish Parliament (The Oireachtas) duly passed the Misuse of Drugs Act 1977. Section 2(2) of that Act gave the Government the power to, without going back to the Oireachtas, make an order that would add a new substance to the list of substances the Act banned as if it had always been on the list. Since 1977, the government had made several orders doing just that, banning ecstasy, ketamine, crystal meth and other drugs within Ireland. All in all, over 120 drugs were banned using this method.
However, this case involves a man challenging his prosecution for possession of ‘methylethcatinone’ on the basis that the s.2(2) order banning it was unconstitutional. In Ireland, having a codified constitution which is a Higher Law than all other laws, all other laws must conform to it. Specifically he said that the government actions contravened Article 15 of the Irish Constitution, which states that:

2(1) The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.

2(2) Provision may however be made by law for the creation or recognition of subordinate legislatures and for the powers and functions of these legislatures.

The argument the court accepted was that, the government were, in effect, making law by themselves, bypassing the Oireachtas completely, so this didn’t comply with Article 15 of the Constitution. The result of this was that the orders banning possession of the drugs were struck down. It is still illegal to sell or supply these drugs to others, since they are regulated under different laws. Not all drugs are covered either – LSD,cannabis and cocaine are covered in the 1977 as passed, not by an order, so are still illegal to possess.
The Government, just in case the ruling went against them, had prepared legislation that was sped through the Dail (the lower house) last night and then the Seanad (the Senate) this morning. Then the President will sign it and all will be good again…but because of unusual Irish Law-making practices, the Law cannot come into force until the next working day after it is signed, that is Thursday Morning at 00.01am.

I bring these two ideas up in conjunction because I think they show an interesting contrast. In Scotland, and the UK more generally, we’re keen to consider a codified constitution, and most people see a Higher Law included in that. The idea that the Scottish Parliament could be abolished by 326 MP’s deciding to isn’t one  a lot of people like. While there’s a political barrier there, people like the idea of the legal certainty a Constitution would bring. Even during the #IndyRef, the idea of enshrining rights to (e.g) housing was floated by the SNP, without any real analysis.
The news from Ireland shows us the other side, where an inarguably sensible provision in the Constitution (That Parliament should make the laws) has thrown up an unexpected obstacle to achieving an entirely legitimate aim. In this instance, it’s quite amusing and not liable to unwind a major arm of the state, however, consider America, where it seems that just about every government programme is challenged on constitutional grounds. What any potential UK Constitution would look like, it’s position in our legal system, and most importantly its content need careful consideration

The Reality of Politics

…or why I’ve accepted I need to get a hair cut.


Remember 1999 (I don’t I was 6 at the time, but bear with me)? The Scottish Parliament was just about to come into being and it was the dawn of a ‘New Politics’. MSPs wouldn’t face-off against each other, but would sit in a semi-circle. We wouldn’t have the confrontation of the old ways, but we’d be a lot more consensual and work together to get the best deal for Scots. A PR system would mean that all our voices would be heard – SSP, Greens, Scottish Senior Unity Citizens’ Party (seriously – 6th most votes in 2011) would be a presence in the Parliament. Committees would make MSP’s put their party political selves aside and work to ensure the best possible legislation came out of Scotland’s Parliament. It would be the start of a New Politics.
Today, Scotland is possibly the most polarised it’s ever been. While the SSP and Independents have had some limited success (as in the much celebrated 2003 ‘Rainbow Parliament’), in 2011 only 3 seats were not won by one of the 4 main parties. Committees, all agree, have failed. MSP’s have proven unable to set aside their party-politicalness, leading to minimal scrutiny and, in some cases, extremely questionable behaviour. It seems that, really, nothing much has changed.

Remember 2010 (I was here for this one)? For the first time in almost 50 years, a coalition government was a real possibility. The Liberal Democrats, the minorest major party, were a major player. The old dichotomy of Labour and Tory would be broken. Everyone was clambering over themselves to “Agree with Nick”, who was the face of a new way. It would be the start of a New Politics.
Today, we have a Tory Government and are preparing for one that will be led (or made entirely) by Labour. The Liberal Democrats will be lucky to stay above 20 seats. Even Nick Clegg, who has gone from triumphant to traitor, is at serious risk of losing his seat. Even those in his own party are finding it hard to agree with Nick. It seems that, really, nothing much has changed.

Remember 2014 (I’d hope so)? Scotland has gone through the biggest decision of its history. Almost 85% of the country turned out to decide whether Scotland should go independent or stay as part of the UK. Even after the vote, there seemed to be a dawn of something different. The SNP tripled it membership – and it’s new leader led packed out The Hydro with activists. Those newly invigorated folks were going to change the way politics was done. The feeling of the grassroots-led Yes Scotland (which lost the referendum) would set the mould for the future of Scottish Politics. People Power and not Professionalism would be the way from now on. It was the start of a New Politics.
Today, people seem to be shocked that political parties still like to retain some control over their election candidates. It’s as if party leadership wouldn’t want a guy who said that No voters (the people that party needs to reach) were “so stupid [he was] astonished that their cerebral cortex can transmit a signal that sparks respiration. They are probably not capable of ever noticing their error.” or that were “either evil, or quite extraordinarily thick.” They can’t believe that only the party that really represents Scotland would dare try and fight the people’s will. It must be “establishment stooges” or “unionist agents”. It couldn’t be that a political party knows what it needs to do to win elections (which it has done very well since 2011, and looks set to do again) and others just have to bow down to that wisdom – even if they rather wouldn’t. Because, if that was the case, it would mean that, really, nothing much has changed…and it couldn’t be that.