DON’T LET THE SNP LEADERSHIP USE THE LAW AS AN EXCUSE FOR POLITICAL INACTION
I originally wrote this about three years ago, in frustration at the SNP leadership continually telling us what we couldn’t do, instead of looking for ways to get round legal blockages. I think it was aimed at the National, but they weren’t that keen on articles criticising the SNP (or maybe it was just boring!) and it never saw print.
The recent Supreme Court case has brought the law back into foreground of the independence debate and, although this has changed the debate to a certain extent, I still think that the gist of what follows is still relevant:
“A major frustration of many SNP members is the timidity of the Leadership in challenging the legal status quo. Law is presented as immutable and we are repeatedly told that various powers haven’t been devolved, so we must obey the letter of the law as it stands.
Now, I’m not a lawyer, I’m an ex tax inspector turned accountant and tax adviser. However, I spent a whole year of my Inspector training studying tax law, and my entire professional career has subsequently revolved around the construction and usage of taxation law. So, I think that I can say with confidence that, far from being immutable, the law is full of inconsistencies and is constantly challenged by political and business pressures.
For example, when I worked for one of the ‘Big 4’ accounting firms a major client bought into a tax avoidance scheme.
HMRC challenged the scheme. But we were on legally solid, if complicated, ground and HMRC’s arguments never got beyond “we don’t like it, so it must be illegal”.
But, despite not being able to fault the scheme legally, HMRC kept on going – they raised spurious points of law, asked endless questions, and made difficulties with other aspects of the company’s business. Eventually we did a deal – the company revised its tax returns to remove the avoidance scheme and HMRC agreed to accept a tax only settlement, with no interest or penalties.
Which illustrates that, in reality, agreements often have very little to do with the strict letter of the law. HMRC made an essentially political decision to press ahead and the company made a business decision to agree a settlement when continuing became more trouble than it was worth. The law does not exist in isolation and shouldn’t be treated as if it does.
And challenging everyday legal assumptions can have interesting results. A self employed trader who religiously submitted his annual tax returns didn’t register for VAT when he exceeded the threshold. Four years later, he received a demand from HMRC for unpaid VAT plus penalties and interest.
But was this the open and shut case HMRC thought it was? Broadly, if an inspector has information which is ignored or misinterpreted, HMRC cannot subsequently raise retrospective assessments. Except, these rules were created to protect taxpayers involved in genuine disputes over legal interpretation. They were not intended to help someone who ignored VAT registration requirements.
But HMRC based their VAT calculations on the four year old self assessment returns and never asked for further information, implying that they must have had enough information all along to make a decision on raising the VAT assessments, but hadn’t done anything about it.
HMRC insisted that the retrospective assessment rules didn’t apply to late registration cases, but we persisted. The case kept getting kicked upstairs until it reached the top. At which point we received a letter from HMRC’s Policy Division cancelling the assessments, as pursuing the case “would not be in the public interest”, which is HMRC code for “If this goes to court, we could lose”.
Which nicely illustrates two points – when people in authority tell you what the law means, what they’re really telling you is what they want it to mean and, secondly, you need to think outside the box as the law is full of unintended consequences which can lead to unexpected results.
But the idea that the law is open to interpretation and that you can maybe use it to your own advantage appears to be of no interest to the SNP leadership. I was involved in two (pre-lockdown) proposals to amend conference resolutions that ended with a variation of the feeble “conference requests that the Westminster Government devolves this power to Scotland” which we all know is simply not going to happen. Both proposals, on Glasgow safe drug rooms and post-Brexit human rights, suggested an outside-the-box/ lateral thinking approach to the relevant law, so that there would be actual actions and consequences if the powers were refused.
So what was the response of the SNP’s leadership, hiding behind the conference committee? On the Glasgow safe drug room issue – “The proposal that the working party would examine the use of health legislation to bypass the fact that drug law remains reserved, was not found to be credible”. There was, of course, no explanation of why it was not credible (and the proposal had been worked on by people who knew what they were talking about).
And on a post-Brexit human rights proposal – “the committee wasn’t convinced that the mechanism proposed circumvented the conflict – it just delayed it somewhat” Which spectacularly missed the point that the proposal was specifically about pushing at the boundaries to find out exactly what could be achieved (or not).
What the leadership and the committee were actually doing was preventing the conference discussing what the SNP could do to get round arbitrary reserved restrictions, because the leadership didn’t want to rock the boat. And why is this important? It’s important because of the message that it sends out. A political organisation that challenges the status quo on small things, and is constantly trying to push at the boundaries of what is possible to achieve change, is an organisation that is going to be taken seriously, both by opponents and its supporters. Sometimes it will win, sometimes it won’t, but you can’t win if you don’t even try.
So, when people tell you that the law is immutable and that the SNP mustn’t push at the boundaries, they’re lying to you. And if the SNP leadership tell you that a Section 30 order is necessary for an independence referendum, that the actual terms and conditions of the Treaties and Acts of Union are irrelevant today, or that devolved health and safety legislation couldn’t be used to get round problems with, say, safe drug consumption rooms, they’re also insulting your intelligence and taking you (and your vote) for granted.
When you hear that sort of thing, challenge it – ask why, ask what research has been done, ask where and when these assertions have actually been tested legally. Legal challenges won’t always succeed but, if you won’t make the challenge in the first place, then you’re pretty much conceding that you’re just a harmless talking shop that can safely be ignored. Just remember that one of the main reasons for the SNP’s disastrously poor performance in the 2017 Westminster election was because of its failure to convince its supporters that it was worth making an effort.
Above all, don’t let people who are supposed to be promoting independence use the law to intimidate you and excuse inaction.
What we really want to hear is how the law can be used to our advantage!
So What’s Next?
Well, that was then, and now we have to deal with the fall out from Nicola Sturgeon’s Kamikaze mission to the Supreme Court. But politics will always trump the law.
Look at Kenmure Street – I’ve been told by Alyn Smith and Joanna Cherry (!) that the SNP had to be whiter than white legally and couldn’t rattle the bars of the cage or do anything provocative. However, SNP MPs/MSPs, from Nicola Sturgeon down, were more than happy to jump on the Kenmure Street bandwagon when ordinary people took matters into their own hands, despite refusing the previous year to have a resolution on this kind of action discussed at Conference.
So, in the independence movement, I think that we ought not to get too wound up about the Supreme Court decision, and focus more on contact with the general public, getting information out to them and building a strong, popular political movement, than just on conventions and conferences. And, despite the Supreme Court, there is still plenty of scope for using the law to rattle the bars of the cage and make the independence movement look like something more than a talking shop.