Category: Scots Law

Nazi Pugs Fuck Off
One of the latest cases to spark intense debate around freedom of expression happens to fall in my own back yard. The facts of the ‘nazi pug’ case concerned one Mark Meechan, aka ‘Count Dankula’, who filmed himself training his girlfriend’s dog to react to various phrases such as ‘gas the Jews’, and then posted it on YouTube. In his own words:

“My girlfriend is always ranting and raving about how cute and adorable her wee dog is, and so I thought I would turn him into the least cute thing that I could think of, which is a Nazi”

Meechan was subsequently charged and convicted in a Scottish Sheriff Court under s.127 of the Communications Act 2003, which makes it an offence to (publicly) communicate a ‘message or other matter that is grossly offensive or of an indecent, obscene or menacing character’.

Offensive speech should not be a criminal offence

The accused argued that the video was intended as a joke to noise up his girlfriend, as evidenced by the disclaimer at the outset. This position was rejected by the court, who stated that humour was ‘no magic wand’ to escape prosecution, and that any determination of context was for them to decide.

In passing the sentence, the Sheriff brought up the fact that the accused’s girlfriend didn’t even subscribe to his YouTube channel, and so claimed that as a result the notion that the escapade was in fact intended as a private joke didn’t hold any water. This is important as it demonstrates a deep cultural ignorance of how people communicate in an age dominated by online platforms, but also for what may well be a more interesting point: That the actions could only be classed as an offence under the Communications Act by dint of the fact that the video was posted on a ‘public communications network’. In other words, if the same ‘joke’ had been demonstrated at a house party, down the pub, or even on stage in front of hundreds of people, then it could not have brought about the same kind of prosecution.

This brings about two questions:
1. Should there be any distinction between posting a video online (or via telephone), and making statements in person? If so, why?
2. Should anybody ever face jail time for making ‘offensive’ statements?
These are questions that can only realistically be properly addressed by Parliament – not the Sheriff court, though one would have hoped that they would have taken a more liberal approach to statutory interpretation, or that the Procurator Fiscal would have had more foresight to not pursue a conviction.

A bad sense of humour should not be enough to justify the possibility of a criminal offence. Further, even if the video was in fact an expression of a genuine conviction (which has not been at issue in this case), then it still should not warrant the possibility of jail time – especially not when the distinction lies on the fact that the statements were made on a ‘public communications network’ rather than in person. Remember, this was not a question of ‘incitement’, but simply offence.

Nazis are not your friends

It appears that in many ways, the court were bound by the statutory terms, and that the 2003 law itself is inadequate, to say the least. However, there is another element to this tale that is worth discussing. Namely, that individuals such as the former leader of the so called English Defence League have come out to associate themselves with the issue, and that not enough has been done to reject those attempts.

The support of the far right is not particularly surprising, as they are increasingly taking up the bastion of free expression to justify their odious positions. I is also understandable that when faced with what you perceive as an unwarranted criminal prosecution that you would welcome any support that you can get, or that the media would try to draw connections where there are none. However, the enemy of my enemy is not necessarily my friend. If arseholes such as Tommy Robinson whose views you claim to be diametrically opposed to try to co-opt your situation for their own political ends, you have a duty to clearly, loudly, and publicly tell them to fuck off. When the far right started to infiltrate punk culture based on the premise of certain shared values, the Dead Kennedys responded in no uncertain terms.

I don’t and won’t claim to know the politics of the accused in this case, but the situation should be a warning for all who consider ourselves to sit on the liberal end of the spectrum: Be wary of those who seek to use a shared belief in freedom of expression as a trojan horse. Yes, fight for the right of those you disagree with to speak, but don’t let the crows trick their way into your nest as a result.

Meechan has indicated plans to appeal the conviction in order to make a point about freedom of speech, although it is unclear at this point under what grounds he will do so. Either way, whilst this is something I would support prima facie, it is becoming increasingly tough to do so with the knowledge that each development gives people such as the EDL a platform without any real challenge.

For a more in depth analysis of the law involved in this case, have a look at this post from thebarristerblogger.com.

P.S. I don’t blame the pug.
26/04/2018
On ‘British’ Rights, and the ECHR
Yesterday, the British Home Secretary Theresa May threw her log onto the fire of the ‘debate’ over the UK’s membership of the European Union; stating that whilst we should remain within the EU, we should withdraw from the European Convention on Human Rights. It’s important to note that the ECHR and EU are two separate legal constructs, and so theoretically you can be part of one without the other.

Not long after May’s comments were published, a video with Patrick Stewart in it was released, highlighting the various benefits we derive from being a signatory to the ECHR.

The response to this that I’ve seen from those who dislike the ECHR would make May proud, with statements such as:

[these are] all rights enshrined in the [1689] British Bill of Rights.

and

We had these because of the Magna Carta already.

Given that it’s becoming a popular riposte in any discussion regarding the UK’s continued acceptance of the ECHR to point towards ancient British legal documents to somehow prove that we know better than the rest of Europe, and should just go back to using the Magna Carta instead, it’s probably time to clear up a few things:

Bill of Rights 1689

This ‘British’ Bill of Rights was never actually a British Bill of Rights. It was enacted by the English Parliament before the Acts of Union in 1707. A separate Act was passed shortly afterwards by the Scottish Parliament, titled the Claim of Right Act 1689. Good luck reading that if you’re not familiar with auld Scots.

However, despite the misty eyed pride in which opponents of the ECHR call up the English 1689 Act, it doesn’t actually have much relevance to the ECHR in terms of content. It’s actually far more about the constitutional position of the Crown in a turbulent historical period.

There is no protection in the 1689 Bill of Rights for the people’s right to be free from torture (Article 3 ECHR), to be free from slavery (Article 4 ECHR), to be free to marry (Article 12 ECHR), or to assemble freely (Article 11 ECHR). There is mention of Freedom of Speech, but it only applies to proceedings in Parliament – not the general ‘subjects’ of the Kingdom.

The sort of rights that the 1689 Bill is really concerned with are:
- Outlawing Ecclesiastical courts.
- Banning the ‘rising or keeping of a standing army’ that could threaten the Kingdom.
- Protecting the right of Protestants to bear arms (yes, really – so definitely no Freedom of Thought or Religion here, as there is in Article 9 ECHR).
Whilst the English Bill of Rights of 1689 does formally recognise a few important fundamental rights that lay the groundwork for the frameworks that we have today – such as the freedom and frequency of elections – let’s not mistake or misrepresent it for anything other than what it was: a piece of law designed to protect those that were in power, not the actual people themselves.

Magna Carta (1215)

The Magna Carta is another favourite for those who oppose the ECHR. “We don’t need the bleeding heart liberals in Europe telling us what to do! We have the fucking Magna Carta!” (this is a genuine quote).

There is no doubt that the Magna Carta is a hugely significant legal document, as its international recognition clearly shows. It contains some truly brilliant and beautiful provisions, such as:

(39) No free-man shall he seized, or imprisoned, or dispossessed, or outlawed, or in any way destroyed; nor will we condemn him, nor will we commit him to prison, excepting by the legal judgment of his peers, or by the laws of the land.

and

(40) To none will we sell, to none will we deny, to none will we delay right or justice.

However, lying amongst the grand and oft-quoted provisions, there are also paragraphs such as the following:

(46) All barons who have founded abbeys, which they hold by charters from the Kings of England, or by ancient tenure, shall have the custody of them when they become vacant, as they ought to have.

(48*) All evil customs of forests and [rabbit] warrens, and of foresters and warreners, sheriffs and their officers, river-banks and their keepers, shall immediately be inquired into by twelve knights of the same county, upon oath, who shall be elected by good men of the same county; and within forty days after the inquisition is made, they shall be altogether destroyed by them never to be restored; provided that this is notified to us before it is done, or our judiciary, if we are not in England.

The Magna Carta is truly an inspirational piece of legal history. It should be of no surprise that it has gone on to inspire legal systems around the world, and used as the basis for hugely important international treaties… including, uh, the European Convention on Human Rights.

Therein lies the point. We should recognise both the historical importance, and seminal nature of the Magna Carta, without thinking that it is somehow an adequate or appropriate tool to solve the issues of 2016.

British Rights and Sovereignty

Whilst people have, and do use the Magna Carta and English Bill of Rights as broad swords to justify pulling out of the ECHR, the real argument being made by people such as Theresa May is that whilst these documents themselves would not be adequate in of themselves, our history shows that we are more than capable of producing law that enshrines protections.

This line of thought seems more coherent, but is dangerously misrepresentative. The most obvious reason for this is that we already have created a set of rights that applies to the challenges faced today – so much so that the rest of Europe followed suit. British judges were already developing the protections contained within the ECHR through our domestic common law before the Treaty was ever signed, and were instrumental in shaping its inception. This can be made no clearer than with the fact that Churchill himself called for a shared protection for rights across Europe, and led Britain to be the very first signatory of the ECHR. We already have a British Bill of Rights. It’s called the European Convention.

The response to this of course, is that the ECHR may once have been adequate, but is no longer fit for purpose. The Tories will tell you that the ECHR encroaches upon the ability of the British Parliament to deal with specific issues that we face as a nation today – and that’s why they had to defy the Strasbourg court, continuing to deny prisoners the right to vote. Instead, we need a new British Bill of Rights so that we can’t be told what to do by Europeans. We created rights after all, damnit!

Even if we accept the argument that the ECHR is no longer fit for purpose (which I do not), to think that we can create some British only version of the Convention that will give us the same protections is nonsense. The great historical documents of the Magna Carta and the 1689 Bill of Rights were brought about primarily to ensure the continued existence of the power structures of the time; they weren’t ever primarily about the rights of the people – and it would be the same situation here.

The Conservatives are not interested in the rights of individuals; they are intent on removing any barriers that prevent them from doing whatever they please whilst in power. This can be framed in terms of protecting the sovereignty of Britain, but it’s actually about protecting those in power. The rights enshrined in the ECHR protect the British people from the excesses of the British (or any other) state. The only way that they have any power to do this is by existing a level above any single government. A new British Bill of Rights would not be able to do this effectively – as there would be no external pressure, and so irrespective of what went into such a Bill, it would be toothless.

To close…

Yes, the UK has been one of the leading voices in history for the adoption of universal human rights, and that is something of which we should be proud. However, we should not and cannot look to the past to demonstrate our ancient achievements in the likes of the Magna Carta and 1689 English Bill of Rights. The natural culmination of these historical developments is in a shared, international acceptance of the basic rights we should have, as protection from the flux of political change and upheaval. This is precisely why the ECHR was used as a crucial part of the Good Friday agreement, helping to bring peace to Northern Ireland.

If we are going to talk about sovereignty, let’s talk about sovereignty of the people – not the self-serving sovereignty of the British Parliament.
26/04/2016
Dear Police Scotland: Get Tae Fuck. Love, a Club Photographer

Hello.

First off, I’m not going to talk about the historical relationship between the police and British nightlife. I’m not going to talk about the legality or morality of drugs. I’m not going to talk about the political controversy over a single Scottish police force. I’m not going to talk about the suggestion that clubs are being purposefully targetted for their prime city centre real estate, or the very persuasive allegations that the former Chief Constable of the tendentious single police force – Stephen House – is a wanker. I’m sure you already have opinions on all of that, particularly the latter. I know I do.

What I am going to do is offer my view as a seasoned photographer (and patron) of nightclubs for around a decade. I’ve worked in all of the usual Glaswegian haunts from the Cathouse, to Bamboo, Garage, Sub Club, and the ill-fated Arches, and I am going to argue that we need to look closely at our city’s nightlife community to see a dangerous trend unfolding that represents a more authoritarian stance from the police.

Much has been said in recent years about how the ‘Glasgow style’ of police enforcement has been allegedly spreading to other parts of the country, with examples including the crackdown on the saunas of Edinburgh, and the presence of armed police on regular callouts in Inverness. What people fail to realise (or give appropriate attention to) is that this is not a Wegie-centric style of policing, but an entirely new approach in general. This is most evident (as far as I can tell) recently in the position of the police towards licensed premises.

In the past year or so, I have witnessed a palpably different attitude from the police towards clubs in Glasgow from what existed before. Not long ago, there was a good relationship, with many clubs praised for their low levels of ejections and lack of requirement for calling upon police resources to control their patrons. The basic idea being, that if your security staff can head off trouble before it happens, and/or deal with it effectively when it does arise, then you are doing a good job. Less calls to the police signal a better managed environment – and less burden on the taxpayer.

Based on this principle, there was hardly ever any reason for the police to step foot inside the private establishments where we go to drink and dance in the wee hours of the morning, unless there was a serious incident. People got on with drinking, and having fun – perfectly legally – and so long as there wasn’t any real manifestation of violence that couldn’t be controlled or dealt with by the trained (and licensed staff), the high-vis wearing arm of the law kept their distance; and rightfully so. Effective community policing – particularly in a city like Glasgow – is about working respectfully alongside people.

Now, however, things are different. The police routinely make drop-in visits to clubs throughout the city, in which they take some sort of guided tour throughout the various dancefloors… to eh, well, who knows what? Far from being a friendly visit to check that everything is going smoothly like they may have been in the past, these serve a distinctly different purpose.

There are two possibilities: either the police genuinely think they are going to stumble upon somebody engaged in some sort of nefarious activity whilst traipsing about in their dayglo jackets and arrest them, or else they are really there to demonstrate a misguided show of force. If the former is correct, then it remains to be seen how it makes any of us any safer. I’d be far happier if they were waiting outside at kicking-out time for the inevitable clashes with drunk passers by, or clamped down on the boy-racer neds who routinely speed out from Mitchell Street onto Argyle Street on weekends to cause trouble, or maybe even dedicated more resources to seriously tackle the 5% increase in reported rapes from 2014 to 2015 (and no, this is not simply down to ‘increased confidence of victims’).

I personally completely reject the idea that emanations of the State should be able to turn up at private establishments, and walk around with their assorted weaponry in a display of force, giving their approval for the behaviour of people who are socialising and not causing trouble. The only time police should enter nightclubs in this manner is where a crime has been reported – not on some routine ‘inspection’ to swing their self-inflated dicks around. Irrespective of the legal powers the police may or may not have, the question is about what kind of relationship we want to have with them.

One needs only look to Aberdeen to see the abhorrent practice of police turning up to clubs just before they open, and demanding that anybody who wants to enter has to submit to drug testing. This sort of action is completely unnecessary, and an illegitimate intrusion of the police into people’s private lives – skirting around the requirements of Section 23(2) of the Misuse of Drugs Act for reasonable suspicion.

If we are not careful, this sort of authoritarianism from the police is only going to increase, and not just in the places where we gather to drink and listen to loud music. It’s worth bearing in mind at this point that Scotland is already subject to some of the strictest alcohol related alcohol laws in the UK, never mind the rest of Europe. How long before drug testing is mandatory to enter any sort of pub? How long before the police expand their jurisdiction to further elements of social society? This aggressive approach is not only a waste of resources, but an affront to everything that we supposedly believe in with regards to the freedom to live without undue interference from the State.

I don’t know what the strategic agenda is in these ‘drop-in’ visits. I don’t know the political manoeuvrings that are going on in the background. I don’t know if this is really a misguided attempt to curb violence, or to cut down on excessive drinking, or if it’s the hangover of a Stephen House power trip. I don’t know if it’s really an attack on ‘youth culture’, or if it’s somehow a result of David Cameron and that pig. What I do know is that the more time goes on, the more the principle of ‘policing by consent’ is being made a mockery of. Yes, clubs should be safe places – but they largely already are. The presence of the police does nothing but to cause friction where none exists. Our freedoms to congregate are rapidly being eroded for seemingly arbitrary reasons, and nobody really seems to care.

Dear Police Scotland – get tae fuck.

27/09/2015
The Scottish Government’s Plans for a National Identity Database
Over the past couple of weeks, it has come to light that the Scottish Government are holding a public consultation on changes to the National Health Service Central Register (Scotland) Regulations 2006.

The NHSCR is essentially a database that holds records on every single person in Scotland who was either born – or registered with a GP – in the country. This is tied to a unique number called the UCRN. Since the bulk of us need to see the doctor now and then – and don’t have private healthcare – that means pretty much all of us is on there. The changes would allow the register to collect some additional information (in the form of postcodes), and then share that data with other public sector organisations.

The proposed aims of these changes are as follows:

i. Improve the quality of the data held within the NHSCR

ii. Assist the tracing of certain persons, for example, children who are missing within the education system and foreign individuals who received NHS treatment in Scotland and left the country with outstanding bills

iii. Enable the approach to secure and easy access to online services (myaccount) to extend beyond services of Scottish local authorities and health boards to a wider range of public services

iv. Enable the identification of Scottish tax payers to ensure the accurate allocation of tax receipts to Scotland associated with the Scottish Rate of Income Tax.

So hold on, how on earth will changes made to a register held by the NHS help trace missing people, or to sort income tax? I’m glad you asked!

Data Sharing

Despite being buried away in a seemingly minor consultation in an innocuous piece of legislation, the proposals are actually pretty significant. In essence, they are seeking to use NHS records as a central location for a whole manner of other organisations to track details about people resident in Scotland.

On the face of it, the sheer dishonesty involved in appropriating a database which has been collected through public trust for other purposes is dismaying enough. However, there are some legitimate aims in there. After all, who could argue with attempting to trace missing children more efficiently? Given the sensitive nature of the information involved, I’m sure that we can expect that the other organisations which would gain access to view and share these types of personal details would be small, and tightly controlled. Right?

Wrong.

In the proposed new schedule, there are 98 different organisations listed who would get access to a core set of records. Amongst them are:
- The Scottish Ministers
- The Scottish Parliament
- Revenue Scotland
Well, okay… not great, but hard to really justify spitting the dummy out over.

But wait, there’s more:
- The Foods Standard Agency in Scotland
- The Drinking Water Quality Regulator in Scotland
- The Queen’s Printer for Scotland
Err… what?

That’s not all though!
- Glasgow Prestwick Airport
- Cairngorms National Park Authority
- Scottish Canals
and… possibly the best one of them all:
- Quality Meat Scotland
Yep, that’s right. Quality Meat Scotland.

Don’t believe me? See the full list for yourself.

Now, correct me if I’m wrong, but I see absolutely no reason for these people to have access to my private information:

I’m sure they’re wonderful human beings that do a great job, but when I go to see the doctor about a private matter, I don’t expect that information to then be available to anybody else, especially not a seemingly arbitrary selection of other public organisations.

Here’s some other possible data exchanges that I find curious:
- The Forestry Commission sharing information on people with the National Library of Scotland (to find out which books are pulped most, perhaps?)
- SQA (the exams people) sharing information on people with The Crofters Commission (finding under-qualified Crofters?)
- Scottish Canals sharing information on people with The Board of Trustees of the Royal Botanic Gardens, Edinburgh (?!?!)
There are other, more serious potential implications though:
- The address information of vulnerable people being discovered, or exposed to disgruntled or abusive ex-partners
- Details of people’s personal medical records (including mental health issues such as depression) being laid bare for others to access – with the potential for discrimination on that basis markedly high
These possibilities are purely hypothetical at this point, and would arguably be outside of the scope of the proposals in their current form. However, they illustrate the risks that are presented by linking up disparate data-sets in this manner. Once the UCRN is deployed across the public sector, there is little to prevent the above examples from being enabled. The consultation does not the risks that are presented by this, and haven’t given the impression of any sort of detailed consideration about either the privacy implications, or general public interest of this move.

One would expect there should be detailed regulations in place to control the sort of information transfer being described, yet the consultation remains remarkably quiet on the matter, stating only the following:

In each of the proposed amendments outlined above the minimum amount of data would be shared for the specific purposes outlined. The organisation will provide information on the individual they wish to identify and will receive equivalent information from the NHSCR and the principal reference number which is the UCRN. Where an organisation wishes to take advantage of this legislation it will also require to have in place data sharing agreements to ensure that appropriate processes are put in place and followed and that the data is used for the specific purpose identified.

That’s all very well and good, but there is a worryingly scant supply of details on the framework that would ensure these protections would be afforded, or what these ‘appropriate processes’ might be to prevent extra data being shared between organisations without justification. There is also nothing to stop this limited, and disparate set of aims (tracking missing children, establishing a more efficient online user account system for public services, and ensuring Scottish people pay income tax) from expanding in the future to share much more data.

This is a far bigger issue than it is being presented as.

Here is a summary of the issues:
- The proposed changes would create a single national identity database in Scotland
- There have been no adequate considerations of the privacy or data implications outlined in the consultation
- There is no way to guarantee that the scope of the data to be shared would not increase in future, once the mechanism is established
- The changes would undermine the public’s trust in the NHS, by using it as a vehicle to deliver these proposals
The consultation is woefully inadequate for the significance of these proposals, and the questions framed as if their premise is already universally accepted as a good thing. Almost laughably, instead of leaving space for any potential concerns, the consultation asks about suggestions for other organisations who the data should be shared with. That’s in addition to Prestwick Airport and Quality Meat, for the record.

The Scottish Government should halt the proposals, and instead move to recognise these changes for what they are: a significant development in our relationship with public sector organisations, requiring a full debate in Parliament, with the chance for both MSPs and the public to scrutinise them.

Read more from the Open Rights Group on this here.

Details on the Consultation itself is here. If you’re looking to do so, make sure and get yours in quick, as the closing date is the 25th of February.
18/02/2015
The Smith Commission Report
Today saw the release of the report from the ‘Smith Commission’, which was set up in the aftermath of the Scottish independence referendum to discuss the devolving of greater powers to Scotland.

This was the result of last minute promises (or ‘the vow’) from the main party leaders in Westminster, in the face of polls that showed a majority of support for Scottish independence.

The vow, and the Commission itself is shrouded in politics and controversy, but I’ve taken a look through the decisions in the report to see for myself what stands out. I’ve tried to take them at face value with my lawyer hat on, rather than look at any of them from an ideological standpoint that supports independence.

Here’s what I’ve found:

The Scottish Parliament

This is a bit of a strange one. Designed to assuage fears that Westminster would dissolve the Scottish Parliament at a whim, it’s nothing more than a symbolic statement. Whilst it’s true that Westminster could theoretically disband the Scottish Parliament (as it is nothing more than a creature of statute), its existence was already guaranteed as much as it could be by constitutional convention. Even with new UK legislation to state the supposed permanence, the doctrine of parliamentary sovereignty dictates that the decisions of one parliament are unable to bind any other – so it doesn’t bring much to the table that wasn’t already there.

Elections

This is good news, with the parties looking to bring these changes in in time to allow 16 and 17 year olds to vote in the 2016 Scottish Parliamentary elections. Note that whilst this is a great progressive step that corrects some inconsistencies with our approach to the age of consent in Scotland, the same 16 and 17 year olds will not be able to vote in Westminster elections until they reach 18.

Foreign Policy

Foreign policy remains reserved to Westminster, which isn’t a great shock really. What’s more interesting is the weak approach to the UK’s involvement with the European Union. When a matter relates to Scotland, the Scottish Ministers views should be ‘taken into account’. We all know what that really means.

The BBC

Interesting, but nothing to write home about. No mention of the license fee, or any other substantive elements of broadcasting in Scotland. Pretty weak, and something that should have really always been the case.

Pensions

Remain with Westminster.

Benefits

Elements of some benefits payments – such as the creation of new benefits – is being given to Scotland. However, a large number of these remain reserved to Westminster. It’s an area that’s relatively long, and not one I claim to have any great knowledge over, so I’ll defer to others for analysis here.

Minimum Wage

Stays under the control of Westminster. Can’t have Scotland paying a higher minimum wage than the rest of the UK after all, that would be scandalous. Worth noting that Labour were against giving the Scottish Parliament the power to introduce a living wage. Party of the people, indeed.

Equality Act 2010

Reserved to Westminster. Whilst it’s important to ensure that Scotland wouldn’t slip below the standards set out in the Equality Act 2010, that seems less of a plausible threat than future Tory governments in London doing the same thing. On balance, I don’t see why this should remain a reserved matter.

Transport

Nothing all that notable here, with the exception of one massive devolution of power to the Scottish Parliament of course:

Ahem.

Fracking

A bit of a surprise one, given the economic importance of fracking. The powers relating to this will now lie with the Scottish Government. I suspect we’ll be hearing more about this though. Watch this space.

Misc.

Good, but… bizarre.

Income Tax

This one has received a lot of press attention, but it seems to be a case of wilful blindness to what the powers actually entail.
- Income tax will continue to exist across the UK
- The Scottish Parliament will have powers to vary the rate of income tax
- Any income tax received as the result of an adjustment by the Scottish Parliament will go to the Scottish Parliament
BUT, note the point at the end of 78: that any increase in the amount of money collected through income tax will be met by a ‘corresponding adjustment’ to the amount of money that Scotland receives through the UK. That means that changes to the income tax levels won’t have any real effect on the actual amount of money Scotland gets. This is a clever way to give the impression of the Scottish Parliament getting more powers, whilst making sure they are toothless with regards to delivering any change.

Other Tax

Pretty much all reserved to Westminster, with the exception of Air Passenger Duty. Note that this includes oil and gas revenues. No big shocker there.

The costs of implementation of a separate system would have to be passed back to Westminster, making it a fairly unattractive power to implement.

There are also some changes to VAT, where Scotland will apparently generate income from the first part of any collection, but again this corresponds to a reduction in the amount received from the UK block grant, so it’s not worth even paying any attention to.

Fuel

You guessed it!

Summary

I felt pretty good about the results of the Smith Commission when I read the brief reports coming from elsewhere. I dismissed the cynicism I saw from other pro-independence campaigners as inevitable. However, reading through the report for myself is pretty disappointing.
- No real new powers devolved to the Scottish Parliament
- A couple of minor victories with regards to 16 and 17 year olds voting in Scottish Parliamentary elections
- Some symbolic language, which doesn’t give any further legal status to the devolved organs
- Headline suitable devolutions of certain taxes, which won’t result in any increase in the Scottish Parliament’s budget
The last one is the most galling of all. It means that even if they make use of the powers to modify the rate of income tax, the Scottish Parliament won’t actually receive any more money. Rather, it’s the source of the money that will change, rather than any powers over the level. This is a sham designed to deliver good headlines.

Of course, none of this is binding. Westminster still needs to accept the recommendations, which could be another interesting battle.

You can download the report for yourself here. It’s not too long – only 28 pages. Worth a read for yourself.
27/11/2014
The End of Poll Tax – and Scottish Labour

It’s been tough to keep up with the developments in the past week, and even tougher to get time to sit and write about them. It’s as if politicians who advocated for a No vote in the independence referendum have seen things not only as a relief, but an active endorsement to pursue even further controversial measures. Hopefully time will prove this to be a mistake on their part.

Labour Councils to Pursue Poll Tax Debts

Firstly, we watched with incredulity as Labour-led councils announced that they would be using the increase in voter registrations prior to the independence referendum to check for those who may owe money from a refusal to pay the unfair Community Charge (aka poll tax) that was levied by the Conservative Thatcher government over 20+ years ago. (#) (#)

It’s almost unbelievable that this was even floated in Scotland, let alone accepted by the Labour party, who have repeatedly used the issue as a reminder of unjust governance. The strength of feeling about this particular issue is one of the reasons why the Tories have been effectively wiped out in terms of Scottish votes ever since. (To be clear, Conservative council leaders in Aberdeen were some of the first that floated this particular idea, but to accuse them of idiocy seems like a moot point. The hypocrisy of Labour is what is particularly galling.)

Poll Tax Limitation, and Writing Off Debt

Thankfully, the outgoing First Minister Alex Salmond announced that legislation would be brought forward to prevent this from happening:

I’ve seen references online from those who seem to think that this was unnecessary, as councils would be unable to pursue debts of this age under Scots law anyway – something that isn’t strictly true. Whilst Salmond’s assertion that it would be illegal for councils to start new proceedings against people they have never previously had interactions with (as evidenced in this devastating exchange with the Aberdeen Tory Councillor) is correct, the Prescription and Limitation (Scotland) Act 1973 allows for a significant length of time past the original 20 years to collect poll tax owed. This is dependant on a variety of factors – including whether or not the obligation itself has been acknowledged. (s.7(1)(a)-(b)) In other words, the period of prescription is not fixed, and it is therefore possible that councils could manage to claw back some income in certain limited situations. Whilst important to note the slim chance involved (and hence the need to legislate), the likelihood of any income being generated from this route seems to be mostly fantasy.

‘Tax Dodgers’ Charter’

Others have decried this move as a ‘tax dodgers’ charter’, seeing it as a potential loss of hundreds of millions of pounds to local councils at a time when budgets are increasingly being squeezed.

This is ludicrous.

The money in question should never have been levied as a tax in the first place. Those who had the courage to refuse to pay at the time were an integral part of the reason that the disastrous experiment was abandoned just a few years later. The idea that they would now somehow have a change of heart after a couple of decades is preposterous – presuming, of course, that they are even still alive.

You can’t lose something that you never had in the first place.

This, by the way, is what the Scottish Conservatives (that titan of a political force) had to say:

The Scottish Conservatives said effectively cancelling poll tax debt raised “many unanswered questions” and claimed many people in Scotland would be “astonished” to have a government “which is basically advocating not paying tax”.

(source)

It’s worth noting that unpaid poll tax debts have been effectively written off in England, due to the differing laws regarding prescription and collection. To suggest that Scots should have to pay back unfair debts that have already ceased to be collectible in England and Wales is clearly nonsense. It’s exactly this sort of uninformed attitude that increases the tension and calls for independence in the first place.

Tax and the Electoral Roll

The right to vote should not come along with an obligation to pay the state for the privilege. This is something that has already been well fought and established. It is true that councils have an obligation to pursue tax that is owed, as a creature of statute. However, to go after voters who have been freshly re-engaged in politics because of the independence referendum, in order to attempt to collect a tax that is all but dead is despicable. Rather than choosing to highlight the issue to the Scottish Government and attempt to have the law changed, Labour have instead attacked the very people that they are meant to stand up for.

Their relevance in Scotland is rapidly coming to an end.

03/10/2014