25 February 2016

Assisted dying: bringing a little light

Last week, the Court of Session made an important decision on the law on assisted dying in Scotland. Gordon Ross - sadly now deceased - challenged the Lord Advocate to produce guidelines on what might happen, if a family member or a friend helped him to end his life. The outcome of this case was generally written up as a failure for Ross. 

The court declined to force Frank Mulholland to publish additional guidance on how his prosecutors would treat cases -- the remedy Ross sought. But in the course of reaching that decision, Lord Carloway and his colleagues arguably did something better -- they stated the law in this area with a simplicity and a clarity which has hitherto eluded the authorities.  Gordon Ross may not have secured the guidelines he was after, but greater clarity, he won. In this morning's edition of the Times, I pay tribute to Mr Ross's valiant efforts. He did not live to see their fruition, but they were not in vain.

Uncertainty in this area of law is a string I've harped on a good deal when Holyrood was considering the late Margo MacDonald's Bill to create a legal structure for assisted dying in this country, ending the need for folk to fly to Swizterland to end their lives, and ending the inequity, which allows richer sufferers to avail themselves of this opinion, but leaves poorer Scots without the remedy they seek.

At the time of the Holyrood hearings, the Crown Office were remarkably unhelpful, when pressed on their understandings of what the law does and does not criminalise, when it comes to assisting someone to end their days, whether by supplying them with fatal doses of drugs, or helping them to the airport, and onto a last flight to Zurich. Why? Their spokesman before the Health and Sport committee claimed that the Gordon Ross judicial review tied their hands - and presumably, their lips too. All the Crown Office spokesman would say was:

"These cases are very fact sensitive. Under the current law, it depends on what precise action was taken to assist the suicide. Perhaps the key point is that consent is not a defence in terms of assault or homicide. Any act that has been taken to assist in the dying process can be looked at in the context of the law of homicide as a whole.
Because a person cannot consent to die in that way under the current law, if someone assists that, that potentially becomes homicide. However, it is difficult to come up with a precise rule, because the cases are all very fact sensitive. It depends on the circumstances of each case, what the condition is, what level of understanding the person who died had, and the intention of the person who assisted."

In his judgment last week, Lord Carloway suggested "the criminal law in relation to assisted suicide in Scotland is clear." For my own part, I'm unconvinced this is a particularly convincing interpretation of the law as it stood before Mr Ross's legal action. But the Lord President's legal analysis in this decision goes a long way to bringing that clarity about. Here's what Scotland's most senior judge had to say.

[29] It is not a crime “to assist” another to commit suicide. However, if a person does something which he knows will cause the death of another person, he will be guilty of homicide if his act is the immediate and direct cause of the person’s death (MacAngus v HM Advocate (supra), LJG (Hamilton) at para [42]). Depending upon the nature of the act, the crime may be murder or culpable homicide. Exactly where the line of causation falls to be drawn is a matter of fact and circumstance for determination in each individual case. That does not, however, produce any uncertainly in the law.

[30] In relation specifically to a death caused by the ingestion of a lethal substance (which is what appears to be contemplated in the petitioner’s case), the administration of such a substance (eg the injection of a first time user with heroin) may amount to homicide (Kane v HM Advocate 2009 SCCR 238; Mr Kane pled guilty to culpable homicide, see p 264). Supplying a lethal substance for immediate use may conceivably fall into this category (MacAngus v HM Advocate (supra)), at least where there is certainty about its purpose and use (the prosecution of Mr MacAngus for the supply of ketamine to a user was discontinued). Nevertheless, the voluntary ingestion of a drug will normally break the causal chain. When an adult with full capacity freely and voluntarily consumes a drug with the intention of ending his life, it is this act which is the immediate and direct cause of death. It breaks the causal link between any act of supply and the death. 

[31] In the same way, other acts which do not amount to an immediate and direct cause are not criminal. Such acts, including taking persons to places where they may commit, or seek assistance to commit, suicide, fall firmly on the other side of the line of criminality. They do not, in a legal sense, cause the death, even if that death was predicted as the likely outcome of the visit. Driving a person of sound mind to a location where he can jump off a cliff, or leap in front of a train, does not constitute a crime. The act does not in any real sense amount to an immediate and direct cause of the death (MacAngus (supra) LJG (Hamilton) at para [42]).

As I conclude in this morning's column we all have reasons to bless the memory of Gordon Ross. He achieved something here for folk in his difficult situation, and their family and friends. God rest him.

21 February 2016


Inevitably, much of the political coverage this morning has descended into a game of personalities. Its detail undigested, interest in the achievements and failures of David Cameron's apparently hard-won European Union deal has already dissipated. The papers and politics shows are full of who is backing who, and the high ambitions and low animal cunning which might explain why.

For my own part, I'm contemplating the approaching referendum on Britain's EU membership with a mounting sense of dread.  More, perhaps, than I anticipated. The promised poll has been rumbling towards us like prostate cancer for months - years - now. But as the grisly encounter approaches, I find myself grow increasingly pessimistic.

The smart money says that the establishment choice carries the day. The smart money sees the country briskly carpet bombed by corporate fear and menacing metaphors - and the British people shrugging their way back into the European Union, lovelessly, but without much animating antipathy either. I'd find this more impressive - and more reassuring - if the self same savvy pundits hadn't been wrong about more or less every significant development in British politics in the last five years.

A Tory majority in 2015 was nigh unthinkable. It happened. Corbyn was an outside candidate, a chortle for which hard-pressed hacks were grateful. He won. Scots would never in a million years vote for independence. An intensely negative campaign squandered a massive lead and gave David Cameron's administration its first cardiovascular incident. In the wake of the independence referendum, the SNP would descend into bloody civil war. Instead, Scottish Labour experienced an almost entirely unanticipated collapse.

I realise nobody is a prophet in their own country, this isn't exactly a list of events to instil confidence in our powers of divination. This isn't a motes and beams thing. I'm no good at making predictions either. You can try to be self aware, but invisible prejudices and preoccupations always cloud your vision. You can't always discern what your blind spots are, and where they lie. But I can't be alone in finding bluff confidence that the "remain" vote will carry the day remarkably complacent.

The campaign to frame the EU -- and hold to it fairly and unfairly responsible for Britain's perceived ills -- did not begin yesterday, with the unleashing of Cameron's divided cabinet. It has been playing out for weeks and months and years, in the pages of the press, and amplified by the powers of the broadcast media.

And in trying to anatomise my anxiety, much of it comes, I'm afraid, from intense pessimism about the politics of England. This is probably characteristic of those with the liberal Scottish nationalist outlook, and doubtless represents a crude and unnuanced depiction of the dominant political attitudes of both England and Scotland. It is probably exaggerated. But it abides.

Always ready with a striking phrase, in the 2014 campaign, Jim Sillars memorably remarked that "the referendum is about power. On 18 September, 2014, between the hours of 7 am and 10 pm, absolute sovereign power will lie in the hands of the Scottish people." I suppose one can say the same thing of this summer's referendum, when Europe is put to the question. After a burst of sound and fury, the people of the United Kingdom shall decide.  

But in grisly contrast with Sillars' formulation, I'm currently troubled by an all too familiar, all too overwhelming feeling of powerlessness. England's gonna do what England's gonna do. Them's the rules. That's democracy. This is precisely what the majority of our fellow countrymen and women chose, in the exercise of that dawn till dusk sovereign will. Months have sped by, but all of this was perfectly foreseeable over a year and a half ago.

But now the idea of Brexit is a real, rather than a remote possibility? Now it is an imminent moment of choice, rather than a hypothetical question? I'm surprised by the intensity of my first emotional reaction.  I can understand the intellectual critiques of the European Union. I can see the case against it from a democratic point of view. I can see, from the perspectives of a left-wing politics, how a Europe of competition and corporations and property, represents a sometimes challenging atmosphere in which to thrive. I don't have an awful lot of time for Michael Gove's quixotic, romantic critique -- but I have a lingering soft spot for the earnestness of the Lord Chancellor, despite himself.

But although I am sure Britain can survive and thrive beyond the European Union, I find the idea of a Scotland and Britain outside of the EU intensely depressing. That Scotland remains in the Union is to me personally a matter of regret. This much, you knew. But to remain in a Union outside of Europe, for the reasons advanced by the odious Chris Grayling, and the gormless Priti Patel? To leave, rudderless for the golden island which float in Nigel Farage's imagination, or in George Galloway's? To leave because of victim fantasies, the modest and overwhelmingly constructive free movement of people across this continent? To leave because of this? 

It is all just too ghastly, too retrograde, too shabby.If this is what Great Britain is to become, if this is what the Great British public vote for, I want out. More than ever. With more passionate intensity than ever I felt in 2014. Without regrets.

But supporters of Scottish independence shouldn't kid themselves on, and chortle behind their hands at the prospect of a "trigger" being pulled on a second referendum. Let's be honest: the SNP's European policy during the 2014 campaign was an absolute boorach, a mess. We faced difficulties with some of the economic messaging, but in terms of badly researched positions badly presented, the European stuff was up there. Now, let's not be hypercritical. Mistakes are innocent made. Details are missed. In the heat of the moment, and under pressure, loose lips say silly things. But on Europe, we don't yet see much evidence of a maturing Scottish nationalist analysis.

It was with some anxiety that I watched the Commons debate after the Prime Minister's statement on the draft European deal a few weeks by -- and saw that the Nationalist delegation had nothing to say, nothing to say, about the substance of European policy. We heard bleating about the conjunction of the EU referendum and the Holyrood poll, but next to nothing about substantive questions of European policy. This isn't good enough.

If Britain does choose to depart from the European Union, the version of Scottish nationalism which has sustained the SNP these last decades takes a fundamental knock. Make no bones about it. It will necessarily prompt a reappraisal of a vision of Scotland in Europe which has been fundamental to the party's mature thinking. This vision represents a riposte to allegation that independence is about narrow nationalism, about separatism, and the reclamation of a fantasy-land 19th century political sovereignty.

Where does the social and economic interests of an independent Scotland lie, if its key trading partner sits outside the confines of the European Union? These questions are acute also for the Republic of Ireland, which must be contemplating our big democratic summer with increasing anxiety. Is EU membership a question of honour, of identity, for Scots -- or is it also just a heartless commercial calculation? And if economic interests and questions of identity and international solidarity pull in different directions -- which of these should the SNP privilege? Which is more important?

The result of this referendum won't just shake the Conservative Party: it has the real potential to sew disorder - and open up fundamental decisions - for the SNP and the wider independence movement. It may not come to that. But for the next few months, I suspect I shall be mumbling Yeats, in fear and trembling, in exaggerated pessimism, over and over.

"Turning and turning in the widening gyre, the falcon cannot hear the falconer; things fall apart; the centre cannot hold." 

18 February 2016

In praise of a man

My alma mater, the University of Edinburgh, wants to do a bonny thing.  Seven years after his death, their School of Law wish to mark the life of former SNP MEP, Professor Sir Neil MacCormick, with a brace of busts to set at the entrance of the School, and two more, in the Royal Society of Edinburgh, and in the Scottish National Portrait Gallery.

They are seeking donations to make this tribute a reality. And as anyone who encountered Professor MacCormick will understand, as a scholar, as a teacher, and as a man, this handsome tribute is well merited. My old Obligations lecturer, Hector MacQueen, offers this lovely wee vignette from MacCormick's classroom, which speaks for itself.

"One story to illustrate the manner and style of Neil's teaching, which also shows the nature of the man. In the 1975-76 session he arrived in Room 270 Old College to deliver a lecture to the class of Jurisprudence. As he took to the podium he removed from his wrist with a characteristic flourish what was evidently a lady's watch. This produced catcalls from members of his audience. Neil smiled, explained that having broken his own watchstrap that morning he had borrowed his wife's watch so that he could keep to his allotted 50 minutes with the class, and then used the class reaction to analyse the difference between social rules (men's watches aren't the same as women's ones, lectures last for 50 minutes not the hour in the timetable) and legal rules.
All that had been abstract and difficult for jurisprudence novitiates suddenly became pellucidly clear. Either Neil had thought it all out before, in which case the expansive gesture with which he removed the watch was perfectly timed to get the reaction he wanted; or, more likely, it was unplanned but he could react with instant humour to an unexpected situation, engage with his audience, and turn the whole thing intellectually to support what he had anyway wanted to say. Whichever, it was a brilliant moment of theatre that remains vivid in the memory nearly 35 years later."

I took the same inspiration for my Times column this morning, reflecting on my own nervy undergraduate encounter with this formidable but kindly character.

Professors can sometimes seem remote, dragonish spirits. It is not the done thing for callow, anonymous undergraduates to disturb their slumbers uninvited. They are the solitary figure on stage, the centre of everyone’s attention; you are just another face, in a cast of a thousand. But full of diffidence I knitted my courage and chapped on his door. I had manufactured a feeble story about my mad auld Nationalist granny sending her best regards. It was a half truth which I rattled off nervously as Professor MacCormick’s door swept open and his big, expressive, owlish face peered out.

Neil had unsuccessfully fought my granny’s Argyll constituency for the SNP in 1992 and 1997. (One tale from the political battlefield: asked what he would do if he won election to the Commons in one of these races, MacCormick reportedly quipped: “Demand a recount.”) The world is not awash with Tickells and mid-Argyll even less so. But whether or not Professor MacCormick actually remembered her or the family from his political campaigns, he had the good grace to pretend, asking solicitously how my studies were faring, talking about his stint in the European parliament, sending me away with a kind word. It was a characteristically decent gesture.

You can read the whole thing here.  If you would like to make a contribution towards Edinburgh's admirable campaign, you can find details and a fuller account of Neil's life by those who knew him far better here.

14 February 2016

Weekend Reading

It is a bit of a mystery. Why is the Scottish Government blowing the PR war about the Higher Education Bill?  Those of you with faith in the power of the dark arts might attribute this to the influence of Kevin Pringle. The long-term SNP spinner and Sunday Times columnist recently joined public affairs consultants Charlotte Street Partners, and is reportedly using his considerable powers to advise the university heirarchy on opposing this Bill. 

But the lack of a clear message emanating from St Andrew's House is befuddling - and frustrating - for many folk in academic life, far more sympathetic to the Scottish Government's agenda than the heid yins who manage our institutions. 

The legislation was in Committee in Holyrood this week, and once again, in selling the proposals to introduce a little democracy into university structures, ministers seem caught, inarticulately, between hollow, technocratic wonkiness and a defensive, apologetic political line. This is completely unnecessary. Why aren’t the Scottish Government arguing the democratisation case more clearly?

The short Bill does a number of things. It sets out principles of academic freedom. It introduces rules on the composition of the governing bodies and academic boards of higher education institutions, enshrining, in law, minimum levels of student, academic and trade union representation. It will require every university's governing body - the notionally independent body, responsible for holding senior university officers to account and balancing the powers of principals - to be chaired by a senior lay member elected by students and staff. 

In response, this week, a number of unelected university chairs sent a remarkable letter to the media, arguing that the election of university chairs by students and staff of their institutions would somehow undermine equality and diversity. Iain Macwhirter - a former University of Edinburgh rector himself - gave them both barrels here. 

As I was asked to fill in for Andrew Wilson in the Scotland on Sunday this weekend, I thought I'd take the opportunity to try to make the case the Scottish Government is signally failing to. "Far from the SNP playing fast and loose with the democratic traditions of Scotland, this Bill is in the best of those traditions. Rectors are an expression of the democratic intellect, nourished in our ancient universities, and now, finally, being extended across the country, to our newer institutions."

You can read the whole thing here.  

For those of you with access behind the paywall, I also had a bit in Thursday's Times this week, inspired by this harrowing portrait of Tereszka, and the child refugee's heart-breaking depiction of "home". It has lessons for today too, I think.

9 February 2016

Carmichael: The Saga Ends

And that, as they say, is that. Barring any unexpected developments, yesterday decision by Lady Paton and Lord Matthews on liabilities for legal expenses brings the Alistair Carmichael election petition saga to its conclusion. In the National this morning, I have a wee reflection on the whole enterprise, and its various twists and turns. An excerpt:

"IT seems apt that the last act in the long-running Carmichael election court drama should take you by surprise. 
The ordinary position in law is that “expenses follow success”: the loser pays. But during its many twists and unexpected turns, the fate of this election petition has been anything but ordinary. Starting from a small, improbable place, it has been quite the saga. Expectations, upended. Outcomes, surprising everyone. New precedents – legal and political – set. 
On the May 23 last year, in the aftermath of the General Election, a confession finally having been coaxed out of the former Secretary of State, I sat down to write what I thought would be a mischievous, hypothetical blog. “Is Carmichael vulnerable to an election petition?”, I asked. Having alighted on this little-known and little-understood corner of election law, I concluded that it might – just might – be worth a punt. 
But I didn’t expect anyone to play Don Quixote, and to brave the costs and the uncertainties of litigation to put Carmichael in the witness box and this speculative legal theory to the test."

You can read the whole piece here.

5 February 2016

"On HM Advocate v Charles Green, Craig Whyte et al..."

I'm not a football man. I have no team. I have never been to a football match. I have no intention of extending the frontiers of my experience in this regard. But I am interested in law, and in free speech, online media, and fair trials. 

In the life of this blog, legal issues and football have seemed increasingly to converge. From the Offensive Behaviour Act, tax obligations, paid and unpaid, defamation threats and insolvency events -- legal curiosity is increasingly pulling me into the wacky world of the SFA and SPFL and the various legal ructions which have gripped them and their members.

But approaching us is the trial to beat them all. Former Rangers heid neeps Charles Green and Craig Whyte have been indicted for a range of offences, along with lawyer, Gary Withey, and Duff and Phelps administrators David Whitehouse, Paul Clark and David Grier. Today brings news from a preliminary hearing in the High Court that a number of charges against these men have now been deleted from the indictment. To suggest this case will provoke public interest and comment qualifies for the understatement of the legal year. If the indictment pours oil on troubled waters; the trial will follow it with a lit match. 

Forums, facebook, twitter, online comments on blogs, articles and website: if it was possible, this criminal trial will turn up the heat on the already boiling cauldron of feeling and opinion which is Scottish football. And that has its risks. Not only for the chances of these men receiving a fair trial on the evidence - which should concern us all - but also for any armchair advocates and prosecutors and defenders, who think the public would benefit from their insight into the case.

Which, perhaps, makes this a useful moment to flag up one or two important things which anyone with a keyboard and an opinion, or a broadcasting job and a desire to remain unfined and out of prision, would be well-advised to bear in mind. The trial of these men is covered by the Contempt of Court Act. Proceedings are active. And Scots judges - at least historically - have been credited with a no-nonsense attitude to applying the Act's restrictions on what you can and cannot publish. In the old days, you could count publishers on your fingers. Today, anyone with an iPhone qualifies. 

And you hear dark rumblings coming out of the Crown Office these days, that senior prosecutors in Scotland are getting tetchy - tetchy with certain well-known tabloid newspapers, flying remarkably close to the wind in their reporting of criminal cases - and tetchy with the opinonated world of folk online, breenging in a prejudicial way into active criminal cases. You hear talk of salutary examples being made, pour encouragers les autres.

Which makes the Rangers fraud case a perilous but fascinating thing for media big and small, professional and amateur. Let's put it this way. Given the issues and characters involved, if the Scottish media, and the easily agitated world of online comment, escapes the Rangers fraud case unscathed by contempt, it'll be a miracle. 

Make no mistake: the lawyers for the accused will be taking a keen and constant interest in what goes on on in the pages of the press, in blogs, on twitter, and in forums. As the criminal case is ongoing -- none of this scrutiny will leak into the public domain. The judge will deal with it in the absence of the jury, but if you fall foul of  the court's attention, you may well find yourself appearing to explain yourself, and mumbling your explanations. 

The days of court specialist reporters in the media are long behind us. This job seems likely to end up the responsibility of the sports desk. And all it will take is one careless reporter, filling in, despatched to the High Court, out of their element, rusty on the rules, to say something spontaneous and silly on the radio or on telly. Or, equally probably, it'll be wee feature piece with a glancing reference to the accused, which isn't legalled, and is thoughtlessly published, only for its potentially prejudical impact to become clear. And bingo. Contempt. 

Perhaps the journalist will refer to legal argument heard while the jury are out of the room. Perhaps they'll allude to evidence the judge has excluded. Perhaps they'll speculate on guilt or innocence of the accused, or criticise the credibility and persuasiveness of some witness or piece of evidence. Whatever it is, there'll be embarassing explanations to be made and an irate judge to placate. I hope this doesn't occur. I don't want to see anyone - professional hack or amateur commentator - hit with a prison term or a fine. But in the current environment, it seems all too probable. 

So what are the rules? Any conduct - any comment - any commentary - any tweet - which tends "to interfere with the course of justice in particular legal proceedings" is a contempt of court, "regardless of intent to do so." This catches any comments which create "a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced." Your social media reach matters, but if you have any kind of audience, don't kid yourself. You aren't a world away from STV or the Daily Record, and you can't expect the judiciary to treat you as such.

You are protected if you are offering only a "fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith." Publications "made as or as part of a discussion in good faith of public affairs or other matters of general public interest" are also not treated as contempts of court "if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion". But if you breach that? The maximum penalty under the Act is two years in prison or a hefty fine. 

So don't kid yourself. Journo or punter, superfan or utterly indifferent to soccer: this isn't America. This isn't a free for all. Duly warned.

2 February 2016

Schrödinger's womb

I've been traipsing after Michael Gove in his various - sometimes curious - parliamentary appearances on the proposed abolition of the Human Rights Act. The Tories are in a bit of bother. Mopping up after the majestically incompetent predecessor Chris Grayling, the new Lord Chancellor has the thankless task of marshalling the Conservatives' jury-rigged proposals to abolish the HRA - and to replace it with a British Bill of Rights - into some kind of defensible public shape. 

This morning, he was explaining himself to Helena Kennedy's EU Justice subcommittee in Westminster. And what remains clear after today's session is: devolution remains a big problem for the UK government's HRA repeal policy -- amongst many others

In June last year, Gove told MPs that "in this United Kingdom Parliament, human rights are a reserved matter." He has been rowing back on that decisive statement ever since. In December, he told the Lords Constitution Committee that human rights was "neither reserved nor devolved".

As Helena Kennedy recognised from the chair this morning, "one of the really tricky issues around all these discussions is connected to devolution." Is Holyrood's consent - and the consent of the Cardiff and Belfast - required either to abolish the Human Rights Act, and to introduce any British Bill of Rights? Former Met commissioner, Ian Blair, took up this line with Gove this morning.

Blair: "Some of the evidence we have received from some of the members of the devolved institutions has been really rather surprising. Quite striking. One that I will particularly quote from is from the member of the Scottish parliament, Mr Biagi, who made it absolutely clear to the committee that in his opinion - and in the opinion of his party - human rights legislation is not a reserved power. And as far as I can see, it is either a reserved power, or it is a devolved power. 
But that is not the position I think you took in front of the Constitutional Affairs Committee in December. And it is not the position that those bringing forward and through the House of the Scotland Bill took. 
But none of us - I think - can understand how it can be neither reserved nor devolved - which makes you feel a little bit pregnant. I mean, it is just not possible. It is either reserved or devolved. So -- my question to you is: do you agree that the consent of the devolved parliaments would be required for an application of -- for the introduction of -- a British Bill of Rights to devolved regions?" 

So what did the Lord Chancellor reckon? Gove doubled down on his strange formulation from the Constitution Committee last December.

Gove: "It is neither reserved nor devolved. But it is the case that any reform or change to the Human Rights Act is a matter for the Westminster parliament. The application of human rights is a matter for Scots courts and indeed, for the Scottish executive -- Scottish government. Within that, so -- um, um,-- it might be -- if you could imagine the state of permant pregnancy, then that's what we have. As for consent, we will consult on what we think is the best way of involving all the constituent parts of the United Kingdom in understanding the case for rights reform. But I wouldn't want to prejudge at this stage exactly how we might  do so."

So. Um. There we have it. "Permanent pregnancy." According to the Lord Chancellor, human rights are the Schrödinger's womb of British politics. If you are prepared to read between the lines of what Gove is trying to say --  you can detect a pretty hazy rendering of the argument I put here. Ish. Just about. If you squint, and peer through the bottom of the milk bottle. Gove's performance today underscores the point. In contrast with the Scottish government's straightfoward legal view - the Sewel convention is engaged by repealing and replacing the Act - the UK government remains in an awful guddle. And if this morning's Lords drubbing is anything to go by, it'll take all of his cunning to free the Lord Chancellor from devolution trap his government has unthinkingly blundered into.  

Pressed on whether or not the outcome of this process might not be an English, rather than a British Bill of Rights, Gove continued:

"I would hope that there would be a British Bill of Rights. But the one thing I will concede is that while I have many friends -- and there are many people who I admire in the Scottish National Party -- it is nevertheless the leadership of the Scottish National Party might want -- if you can imagine such a thing -- to view this exercise through a party political lens. Certainly, in the run up to the Scottish parliamentary elections. I hope we can encourage them to resist that temptation."

Temptation indeed. Heaven forfend.

Questions, questions

It is a finnicky detail, but an important one. Today, Kezia Dugdale has announced that Scottish Labour wants to increase income tax by 1 pence in the pound across all tax bands. Under the scheme, anyone earning over £10,600 or so will find themselves making a greater contribution to the Scottish exchequer. Wealthier folk considerably more. 

From a legal point of view, this is entirely in order. Under the Scotland Act 2012, Holyrood sets a single Scottish rate of income tax to be paid by Scottish income taxpayers. So how does it work? Under the 2012 Act, you take the UK tax bands determined by Westminster and knock 10% off them. Holyrood has the discretion to add a single supplementary Scottish rate over and above this, which applies to all bandings. To add 11% to the upper rate of income tax, MSPs have got to add 11% to the basic rate too. 

Notice a few important things which the 2012 Act doesn't let MSPs do. They've no control over (a) the extent of the tax free personal allowance (b) the number of tax bands in operation (c) when these bands kick in and (d) obviously cannot - at present - increase only the upper rates of taxation. But importantly, the Scottish Parliament also cannot introduce additional forms of tax relief into the code, or add permissible deductions or provision for rebates to the HMRC rules, even for Scottish taxpayers. Nothing in the Scotland Bill, before Westminster, will change any of this. For the moment, all MSPs can do is move the overall income tax slider up or down.  

This is why I'm more interested in Scottish Labour's attempt to sweeten the bitter pill of making even those on very modest incomes pay more tax, by promising the following:

“We would establish, with local authorities, a £100 annual payment to the boost the income of low paid taxpayers. This will account for just £50 million of the half a billion pounds this change will raise but will mean that we can boost the incomes of low paid taxpayers.”

Labour are defining a "low paid taxpayer" as "taxpayers" earning less than £20,000 a year. They suggest "one in five tax payers will end up better off financially" for the modest expenditure of £50,000,000 a year. The Guardian and Daily Mail characterise these payments as "rebates" for the low paid. The Daily Record calls it "cashback." Kevin Hague calls it a "refund", though Kevin rightly stresses that "the precise mechanics of how this would work are unclear". The BBC and Holyrood magazine characterise the proposal as a "payment," but offer nothing more by way of detail than Labour's press release summary.  

So what might the legal mechanics of this critical element of Kezia Dugdale's platform be? Let's be clear about a few things from the get-go. Firstly, and as-per-ruddy-usual, the Scotland Act doesn't provide a straightforward legal mechanism to realise Scottish Labour's ambitions. Holyrood has no authority to order HMRC to fork over a £100 repayment to those earning less than £20,000 gross salary per annum. This is so, even if the Scottish Government is good for the money it would cost and willing to pay the funds. This will remain so, even after the Scotland Bill comes into effect.

Holyrood has no legislative competence to introduce such a scheme, as "taxes and excise duties" remain - broadly - reserved. So this is no "rebate", no "tax refund". And critically, it couldn't be administered through the tax system, with all of its convenient access to the financial information of hundreds of thousands of Scots. 

Although is - doubtless - convenient political shorthand for Dugdale to link the two, what the Labour leader is proposing here is an entitlement scheme quite distinct from Holyrood's decision-making on the Scottish rate of income tax. Such a payment seems to fall within the - generally reserved - domain of social security. This is defined as "schemes supported from central or local funds which provide assistance for social security purposes to or in respect of individuals by way of benefits,"

“Benefits” here is defined as including "pensions, allowances, grants, loans and any other form of financial assistance." And providing assistance for social security includes "providing assistance to or in respect of individuals ... who qualify by reason of low income." Although Scottish Labour want to dress this up as a rebate or a refund -- it bears all the hallmarks of a social security benefit. If the Scotland Bill passes and comes into force, section 26 should lend Kezia a hand, but until that day, it isn't clear how Dugdale can bring her £100 payments about. The timelines for realising these powers may, or may not, neatly splice with the tax hike she is proposing. 

And because this isn't a tax repayment, there are obvious wider practical implications worth considering. Labour indicate that local authorities will shoulder the burdens of adminstering this policy (so no universal credit supplement, this). So how is it envisaged local authorities will collect the relevant financial data on potential beneficiaries? A "rebate" might suggest a convenient calculation, completed automatically by the taxman's computer, which coughs the cash directly into your bank account. But local authorities don't have this data. Will the low paid be expected to take the initiative to make some kind of local government tax return to establish their eligibility? 

And thinking of that, have administrative costs been factored into Scottish Labour's £50 million estimated costing for this policy, or is this simply an estimate of the total cash which those earning under £20,000 will be entitled to? If these figures don't include administrative costs, why not? And if they do include administrative costs, what data are these calculations based on? What assumptions have been made about the number of individuals eligibile? What's the breakdown? 

One reason why you might struggle to tell me that is that you're still a little fuzzy on who will, and who won't be, entitled to this £100 benefit. In which case, that £50 million estimate looks even shooglier. HMRC estimates that around 2.56 million Scots pay some income tax, the overwhelming majority at the basic rate. Are those earning less than the personal allowance (£10,600 in 2015/16) being classified as "taxpayers" in this scheme, entitled to an annual £100 supplement, along with those who earn £15,000? Pensioners, students, weans? Or will only those who cross the threshold of the personal allowance see the supplementary £100? But even if we're only talking about these taxpayers, making 512,000 people wealthier while taxing them more might seem a difficult circle cheaply to square.

Not insuperable hurdles, then. But questions, questions.