The Point
Last updated: 19 June 2017.

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What YES needs is a commonly agreed plan...that actually works

It’s time to start talking about Win Day Ref 1, rather than indyref 2; not to defocus the important questions of when, how and what critical issue(s) the indyref should be fought on, but to ensure that the most intense and calibrated focus of our movement, of every YESSER, of all pro-indy parties and none, is on understanding that when we do go to the polls again, this time Yes MUST win.

Why? Because, to put it simply and bluntly, if we don’t, if we miss out again – even by the narrowest margins of a few percentage points - the dream of the Scottish people finally having full and proper sovereignty, of becoming a normal country like any other nation on the face of Planet Earth and taking our own seat at the United Nations; of being able to choose our politics, our own philosophies, our own destinies, our own future, will be gone for a generation, or perhaps even longer.

Nicola Sturgeon recently said that she believed Scotland would be an independent country by 2025, or perhaps even before. I hope she is right. In this article I want to attempt to sketch out what I think needs to be done to ensure that indyref 2 is also Win Day Ref 1 – a historic day that will set Scotland’s talents and energies free, and make independence from that day forth an irrevocable reality.

Of course, I don’t pretend to have all the answers. Some of you reading this are bound to have your own ideas and emphases on how we go from where we are now to Scotland being an independent country. But consider it a contribution to a discussion which we all need to have collectively.

As a starting point, I want to begin with a brief review of The National’s special independence case re-launch out today (Saturday 17th June, 2017)

Light beginning to dawn…or back to the future?

It was with a bit of excitement that I headed to the local Scot-Mid this morning to pick up my copy of The National. Trailed in the previous day’s paper as a virtual re-launch of the independence campaign from a range of pro-indy voices I was hopeful of a bit of a genuine reboot. After all, there have been some very good articles in The National recently that seemed to signal a move away from the wall to wall default EUphile position since last June; the constant echoing of the SNP leadership line that EU loving No voters would flock to the YES banner to stay in the EU, and that, therefore, all that needed to be repeated ad nauseam was that indyref 2 was about ‘not being dragged out of the EU against our will’ and a majority for YES was guaranteed.

Against that dismally surface and shallow analysis I and The Point have repeatedly argued that 4 out of 10 YES voters were also Leave voters and would be utterly underwhelmed by the idea that their YES vote should be purloined for the purposes of staying in a European Union they wished no part of. Further, that any idea that the 62% Remain vote in Scotland was an overwhelming vote of enthusiasm for a corporatist neo-liberal, free market institution was a fundamental error of judgement. Much of the Remain vote was a confused vote for a second indyref or a vote against the racism and xenophobia of the Boris Johnson/Nigel Farage project. Linking indyref 2 to the question of staying in the EU, we pointed out, would lose one or more working class YES/Leave voters for every middle class NO/Remain voter it gained.

The solution that both I as an individual and The Point put forward to get those NO/Remain converters and the YES/Leave voters back on the same pro-indy bus was to make it clear that indyref 2 would be about one thing and one thing only – Scottish Independence; with Scotland having its own referendum on EU membership only once independence was achieved.

To be fair to the SNP leadership, they eventually saw the headlights of the ‘lost votes’ bus that was coming at them straight down the road. In recent months language became more nuanced; indyref 2 was now about retaining our place in the single market, not the EU. Indyref 2 was to be reframed as giving Scots a choice in the context of hard Brexit.

None of these subtleties really worked, however. Because the fundamental message that was coming across to many working class people was still the same. Vote YES in indyref 2 if you wanted to stay in the EU. And if you don’t like what we are saying just now, just wait till the terrifying ApocaBrexit gets hold of you!

So, would the National Special Issue give an indication to what way the wind was now blowing both within the SNP and within the wider movement? And were they the winds of change that can really deliver a united YES vote and a majority for independence in the not-too-distant future?

Well, it was a mixed bag, to be honest – with some very important recognition and calls from those in the wider YES movement for greater radicalism, a bigger role for YES, and for more serious work and campaigning to be done on the issue of independence itself. But from some it seemed to be ‘more of the same, thank you very much. Those clever folks in the SNP can’t possibly have got anything wrong.”

Ruth Wishart called for ‘a twin track approach’ to win voters back

“…renewed endeavour on the health and education fronts in Holyrood, whilst also continuing the backstage work addressing the crucial economic questions which are likely to dominate any future independence campaign.”

Well, who would disagree with that? The SNP Government certainly needs to improve on education, and who wouldn’t argue that the case on pensions and currency needs to watertight next time the question YES or NO is asked at the polls. But there seemed little recognition that the way to bring YES Leave voters back on board was to actually take some cognisance of their anti-EU position. No, once the silly fools got a good dose of ‘Hard Brexit’ they would soon see the error of their ways!

“…the positive side of delay is that the next two years will provide more evidence of the harsh economic penalties of Brexit. SNP voting Leavers will not be immune to that.”

The veteran activist Isobel Lindsay disagreed:

“A referendum campaign predicated on Brexit being nasty is unlikely to succeed. We need a strong ‘pull’ campaign. What happens with Brexit is largely out of our hands.”

She goes on to make the point:

“How can we transform the quality of life here, how would we create a high participation democracy, and what are the practical nuts and bolts for a new independent state? Some of this work has and is being done, for example by Common Weal, but it needs to be greatly expanded”.

That seems to be one up for both enhancing the radical case for indy and for being prepared to take our time to develop the case.

Colin Fox of the SSP is also clear that we can’t hide our indy light behind a ‘don’t scare the horses’ bushel, and that the overemphasis on the EU has been a mistake.

“…what lessons can be learned? First, that the case for independence cannot be advanced by disowning it. Secondly, the First Minister’s announcement of indyref2 in April was…a huge mistake

It made Scotland’s EU membership the priority and reduced independence to a Brexit bargaining chip.”

Now, I actually disagree that the essence of the error lay in the timing of Nicola’s announcement, rather it lay in the whole thrust of SNP strategy post June 2016 – to make a second indyref not about independence per se, but about independence in the EU.

From the SNP leadership themselves – represented in the person of Minister for Brexit (what else?) Mike Russell, there was little recognition that anything needed to change much in the wake of the loss of 21 seats, including many to the hated Tories, or the fact that the polling on independence after some brief rises immediately post the Brexit referendum has more or less averaged out at the 45% mark now for months – a sure fire indication that those waves of NO voters desperate to stay in the EU have not, as a matter of fact, swelled the YES voting cohorts to where we can be confident – as yet – of getting over the finishing line.

In fact, Mike repeated the rather unclear/and or misleading formulation that has been at the heart of most SNP pronouncements on the subject for some months now. In fact he seemed at pains to point out:

“The proposal for an independence referendum at some stage after the conclusion of the Brexit talks is a commitment about Brexit. In other words, what the SNP were and are saying is that the people of Scotland have a right to be consulted about being dragged out of Europe against their will.”

I would put to Mike and other SNP Ministers and strategists what seems to me and many others to be a very obvious point. How on Earth can a referendum on Scottish Independence with the wording ‘Scotland should be an independent country: YES or NO’ possibly be a consultation on being dragged out of the EU, or membership of the EU, or anything else to do with the EU?

Nobody denies that Scots should have the right to choose their own future, to choose whether an independent Scotland should be in the EU or not, but the only way that can be done is by having an indyref2 first (and foremost) that is about the case for Scottish Independence.  Once independence is a reality then a newly free Scottish people could have their own referendum on whether their newly independent country should be a member of the EU or not.

Anything else is a democratic outrage and the SNP leadership’s continuing myopia on this question puts the whole future of independence at risk.

(NB Please remember that a majority of Scots did not vote personally to stay in the EU in June 2016, nor that an independent Scotland should be in the EU, but that the UK should remain in the UK. And that these are entirely DIFFERENT questions!)

So, to sum up today’s Independence Special in The National, some clarion calls from Yesser’s for the movement  in general to be more radical and progressive and for the SNP to recognise the wider role YES plays, and to be more bold and left wing in Government themselves. Good.

A more mixed position on the EU, with recognition from some quarters that the independence debate has to find a way of moving on from Brexit, and get back to indy and big vision fundamentals, but with others still blithely repeating the same old ApocaBrexit slogans. Work still in progress on that one, then.

The Elephants in the Room

And strangely enough, at the end of the week when 21 SNP MPs were lost and the Tories won a dozen seats, significantly increasing the Panda breeding population at a stroke, no-one questioned the disastrous Both Votes SNP strategy so stoutly defended by their ever reliable cadre in the run up to the Holyrood 2016 vote, and which saw 750, 000 mainly pro-indy votes wasted on the list, allowing the Tories to win big on the second vote, and kicking off their undeserved renewed momentum in Scotland.

Imagine, if instead, the SNP had put movement before party and called for a vote for pro-indy candidates on the list? The Greens would have won more seats, and Solidarity and Rise a few each – all at the expense of the Tories. I’ll argue right now that that ‘Max the YES’ strategy wouldn’t just have been better for the YES movement as a whole, it would have been better for the SNP in the longer term.

So, in relation to my – admittedly brief and focused - overview of the National’s post GE 2017 YES special, I’ve been developing a few themes and arguments (you probably noticed).

Now is the time, however. for me to lay out clearly my own view on what we need to do turn indyref 2 into a Win Day referendum …and make sure that when we all crawl into bed after the next referendum night results, it’s with a joyous exhaustion, because we’ve done it, we’ve persuaded our country to vote for its own sovereignty and freedom

So, putting the key points of my own argument succinctly:

 *    If there is an indyref 2 in 2019 we have to go all out to win it. That there is a mandate for it is absolutely clear. But having a mandate for it DOES NOT MEAN we should necessarily be thirled to that timescale. The timing of a Win Day ref needs to first and foremost have a strategic element. We have to go to the country with an independence prospectus again when we think and believe - not just that we CAN win - but that we WILL win.

 *    The YES movement and the main party of independence, the SNP, remain in a good position…but not in as good a position as they might have been if not for the three critical strategic errors by the SNP leadership 1) the Both Votes SNP strategy which allowed the Tories unnecessary momentum at the Scottish 2016 Holyrood elections and de-mobilised a section of YES activism  2) the slow slip into steady as we go managerialism, and the handing over of the banner of left progressive radicalism to the Corbynite left  3) Making indyref 2 about our position in the EU for so long, wholly overestimating the degree of real support for the EU in the Scottish electorate, and thus effectively alienating and de-mobilising huge layers of working class YES voters who also voted to Leave the EU.

 *    A huge party like the SNP - like an ocean liner – has a huge turning circle. It will take time to come to terms with these errors and correct them, ensuring that the current steady support for independence at 45% becomes a future steady support for independence at 50%, 55% or above. Consequently –although we are all desperate for indy as soon as possible – I now believe that it is better to bide our time, to wait and win, rather than go to early to the polls when the necessary work has not yet been done – and that also includes vital work on things like pensions and currency.

 *    There should be a clear option of a second indyref during the Parliament to be elected in 2021 – not based on ‘changed circumstances’ or ‘ensuring our position in the EU’ - but simply on a straightforward manifesto commitment from all pro-indy parties to hold a referendum in the lifetime of that Parliament, with the emphasis on winning a vote for independence sometime between 2022 and 2024, with the aim of Scotland becoming fully independent after a short period of negotiations in 2024 or 2025.

 *    Ideally that would mean the SNP putting movement before party at the Holyrood elections in 2021, agreeing to stand only in the constituencies (unopposed, and supported by all other pro-indy parties and the YES movement), while a Team Scotland or All Under One Banner slate of the other pro-indy parties – Greens, Solidarity, SSP, Rise – and prominent non-aligned independence individuals stood only on the list, (unopposed and supported by the SNP). With a bold, mobilising and radical pro-independence call for a mandate for indyref 2 (or Win Day Ref 1) a pro-indy majority of MSPs could once again be assured, the date for a referendum set, and the endgame of the battle for Scottish Independence could truly begin.

Of course, politics is a faster moving thing these days; it throws up surprises (good and bad) at a rate of volatile change we haven’t been used to in the past, and it just may be the case that we can fight and win in 2019. But even the best army and cause can founder if it sticks to too inflexible a timetable, and doesn’t have a good alternative plan at the ready.

I think I have outlined here what should be our plan A, but the very least I hope you’ll ponder on the issues and points I’ve raised and consider them a good alternative plan B.

I look forward to hearing you feedback and opinions fellow YESSER’s.

Whatever our small differences may be they are as nothing to our differences with those naysayers who would trap Scotland in a Union that it never voted for and has served us spectacularly ill for the last four decades.

So let’s have the discussion and the debate; let’s come to a common plan we all can get behind and agree upon, and go forward together, to finally and irreversibly fulfil the heady promise of 18th September 2014.

Steve Arnott.

 

 

Other articles by Steve Arnott in The Point include:

 

Arthur C Clarke: A Very Modern Odyssey

 

A Tribute to Neil Armstrong... or 'Where's that f*****g space elevator?

 

The European stem cell research ban – why and how we should fight it

 

Enriching Scotland’s Common Weal through Scottish Inventions and Innovations

 

(science and ideas)

 

 

 

The Conspiracy of Doves I – Darwin, Marx and The Conspiracy of Doves

 

The Conspiracy of Doves II - Socialism and the selfish gene: A tale of quiz shows, game theory and natural selection

 

The Conspiracy of Doves III - The Theory of Neuronal Group Selection, part one

 

Postcapitalism: An Overview – Part One

 

(Darwinist-Marxism, evolution/revolution, post-capitalism)

 

 

 

In Praise of Beethoven

 

Teaching Tom…and Dick and Harry and Jane: A Personal Reply to Tom Hunter on Scottish Education

 

The Culture: Iain Banks’ Greatest Creation

 

(culture, education, The Culture)

 

 

 

Reversing privatisation and PFI using a ‘windfall’ financing model

 

2013, A Year to Go: Independence and Raising the Game in Phase 2

 

Achieving gender balance in an Independent Scottish Parliament (co-authored with Liz Walker)

 

Taking back what’s ours: Why we need a Public Commission on Public Ownership

 

Max the YES: Tactical Voting for Holyrood 2016, Yes or No.

 

(independence, socialism, progressive policy ideas)

 

On seeing Orcas in Burra Sound

 

(poetry, verse, fiction)

 

Steve’s novel, Pilot of the Storm, First of ‘The Star King’s Proxy’ trilogy, is also available to buy or rent at…

 

https://www.amazon.co.uk/Pilot-Storm-Book-StarKings-Proxy-ebook/dp/B00JGF0P6Y/ref=sr_1_1?s=digital-text&ie=UTF8&qid=1483670725&sr=1-1&keywords=Stevie+Arnott+-+Pilot+of+The+Storm

 

 

Dialectics, Class Consciousness, and the Philosophy of Praxis

Joanne Telfer offers up two key theses on the Marxist dialectic for rediscovery and discussion.

Introduction

I've been intending to embark on a project to clarify the meaning of the noun 'dialectic' and the adjective 'dialectical' for many years because I believe that for many in the movement these words are either obscure or misunderstood. Understanding these terms properly, is, in my view, at the very heart of being able to fully grasp the works of Marx and his collaborator Engels - without which we cannot properly call ourselves Marxists.

My premise is this: that in the one and three quarter centuries since Karl Marx began to publish his exceptional insights into the motion of human history and then proceeded to lay bare the laws of motion of capital, the roots of this exceptional breakthrough have largely remained metaphorically in the soil and, in fact, more soil has been shovelled over them obscuring them further.

These theories are not mine. They are there to be rediscovered by anyone who cares to trace the development of Marxism from its starting point in the mid nineteenth century, through Lenin and the Russian Revolution, through the dark era of Stalinism, where much of this was lost or confined to the margins (apart from independent work by Lukacs and Gramsci) until it resurfaces in French radical circles of the nineteen sixties.

First and foremost we have to consider Marx's Philosophical and Economic manuscripts (1) which were written in 1844 but not widely published until 1959, although they were uncovered by researchers in the Soviet Union in 1932. After Marx's death in 1883, the main custodian of Marx's work was Engels, from whom it passed to Kautsky who's reputation went into decline after the the outbreak of world war one. The recognised authority passed to Plekanov and then Lenin but ultimately fell under the influence of Stalin.

Without an understanding of dialectics there is a tendency for historical materialism to become a dual system (in fact a Dualist system) of crude materialism combined with idealist dogma - because Marxism is thus stripped of its inner core. Events tend to be valued either according to their moral content or purely on dogmatic grounds (by idealism) or they are viewed as an endless repetition of past events. The real organic connections of living history as previously comprehended are lost without the theoretical foundations of historical materialism, as this unfolded in Marx's early work. Furthermore without a philosophy of praxis there can be no revolutionary class consciousness, and I will attempt to elaborate this.

Whereas Trotskyism had established itself as a force in opposition to Stalin, developing as it did out of the Left Opposition, the Third International was still the dominant global institution in the period following the second world war. Trotsky certainly had a firm grasp of the Marxist dialectic but he can't possibly have fully grasped Marx's early work because it hadn't been published during his lifetime. What he was exposed to during his imprisonment in Odessa in 1893, was the ideas of Antonio Labriola (1843 – 1904) who was one of the first to coin the phrase "philosophy of praxis", and who also influenced Gramsci.

Labriola fought relentlessly against the neo-positivist and vulgar-materialist trends that proliferated in Italian Marxism, He was one of the first to reject the economistic interpretations of Marxism by attempting to restore the dialectical concepts of totality and historical process. Labriola defended historical materialism as a self-sufficient and independent theoretical system, irreducible to other currents; he also rejected scholastic dogmatism and the cult of the textbook, insisting on the need of a critical development of Marxism. This scholastic dogmatism by the way is the root cause of the Pythonesque  "Life of Brian" tradition of denouncement, very typical of small sectarian left-wing groups. Without an understanding of Marxist materialism, the works of this or that author become holy texts and any detractors cast out as sinners and heretics!

Following the death of Stalin in 1956, an uprising in Hungary was brutally crushed. This in itself was a complex historical event that I'm not going to go into except to suggest that it sent shock waves through the Third International and assisted in provoking intense discussion especially among the French left, inspiring Jean Paul Sartre to write his Critique of Dialectical Reason. (2) This is an intense and difficult work to read but it singles out Engels for particular criticism with regard to his Dialectics of Nature. Dialectics in my view (and I'll elaborate on this in due course) do not belong in material science. Engels produced many excellent works, but this was published posthumously from draft notes, first going into print in 1925.

Also of notable significance is Louis Althuser who defended orthodox Marxism by correctly raising the importance of the unity of subject and object (more on that to come) but insisted that there existed an epistomological break between the early and more mature Marx. Epistomology describes the means by which we know things, how we develop our knowledge. Althuser could thus dismiss Marx's Philosophical and Economic manuscripts as immature and irrelevant.

Stalin makes it up as he goes along: “We are for the withering away of the state. And yet we also believe in the proletarian dictatorship, which represents the tightest and mightiest form of state authority that has ever existed in history. To keep on strengthening state power in order to prepare the conditions for the withering away of state power – that is the Marxist formula. Is it contradictory? Yes, contradictory. But the contradiction is vital and wholly reflective of the Marxist dialectic.”

J.V. Stalin, “Address to the 16th Congress of the Russian Communist Party”

Defining the dialectical

This is what we get from the Merrian-Webster dictionary in the context of philosophy:

1: Logic

2a : Discussion and reasoning by dialogue as a method of intellectual investigation; specifically : the Socratic techniques of exposing false beliefs and eliciting truth

2b : The Platonic, investigation of the eternal ideas

3 : The logic of appearances and of illusions : the logic of fallacy, the dialectic of Kant

4a : The Hegelian process of change in which a concept or its realization passes over into and is preserved and fulfilled by its opposite; also: the critical investigation of this process

4b : Marxism, usually dialectics plural in form but singular or plural in construction : development through the stages of thesis, antithesis, and synthesis in accordance with the laws of dialectical materialism : the investigation of this process : the theoretical application of this process especially in the social sciences (authors note - I'm not sure where Merrian Webster got this from because “Thesis, antithesis, synthesis” is an expressen used by Johann Fichte, not Marx).

5 : Usually dialectics plural in form but singular or plural in construction

5a : Any systematic reasoning, exposition or argument that juxtaposes opposed or contradictory ideas and usually seeks to resolve their conflict : a method of examining and discussing opposing ideas in order to find the truth

5b : An intellectual exchange of ideas

6 : The dialectical tension or opposition between two interacting forces or elements.

So here we have multiple definitions and we are of course primarily concerned with number 4b in this list. Nevertheless most of these diverse definitions if not all are related (3, 4 and 5 especially so). Also the Socratic technique of exposing false belief (Socrates ? - 399 BC) comes into its own when we are contrasting the polemic which is fiercely one-sided with this Socratic technique which we can appropriately call dialectical. It's also relevant to note that Kant 1724-1804 influenced Hegel 1770-1831, who in turn influenced Karl Marx 1818-1883.

But let's start with proposition 4a above as our working definition : The Hegelian process of change in which a concept or its realisation passes over into and is preserved and fulfilled by its opposite; also: the critical investigation of this process. And let's further simply that, put it in plainer language:

*   We can define something by its quantity and it's quality and often do but the quality can turn into a quantity (when a usefulness of a thing becomes a price) and a quantity can transform into a quality (when for example something we buy is being used for a purpose)

*   We can distinguish the day from the night but we observe that one turns into the other and vice versa. We cannot in fact define light without reference to darkness.

*    We attach importance to life and death but here again we know that everything living will die and that new life can assemble itself from that which isn't living so long as the information exists (DNA) to instruct this assemblage

*    We are aware that masters can become slaves and slaves masters.

*   One of the essential properties of time and therefore history is the capacity (especially in human history) to turn one thing into its opposite.

Digging up Hegel to examine him

Hegel's philosophy is a heavy read, especially for anyone not familiar with the various specialised terms that crop up in philosophy but anyone interested in studying dialectics further should attempt to read Hegel's Logic (part one of his encyclopedia of the philosophical sciences 1831). (4)

Marx didn't just take bits of Hegel (for whom he had a great deal of respect) but understood Hegel's work in its entirety and wrote a number of critiques. Frederick Engels had this to say of him (fittingly humorous in parts) in his Ludwig Feuerbach and the end of Classical German Philosophy (5) which is worth quoting in full but it needs to be stressed in advance that Hegel, as an idealist and some say a pantheist, believes that the starting point is the Absolute Spirit:

Hegel was not simply put aside. On the contrary, a start was made from his revolutionary side, described above, from the dialectical method. But in its Hegelian form, this method was unusable. According to Hegel, dialectics is the self-development of the concept. The absolute concept does not only exist — unknown where — from eternity, it is also the actual living soul of the whole existing world. It develops into itself through all the preliminary stages which are treated at length in the Logic and which are all included in it.

Then it “alienates” itself by changing into nature, where, unconscious of itself, disguised as a natural necessity, it goes through a new development and finally returns as man’s consciousness of himself. This self-consciousness then elaborates itself again in history in the crude form until finally the absolute concept again comes to itself completely in the Hegelian philosophy.

According to Hegel, therefore, the dialectical development apparent in nature and history — that is, the causal interconnection of the progressive movement from the lower to the higher, which asserts itself through all zigzag movements and temporary retrogression — is only a copy [Abklatsch] of the self-movement of the concept going on from eternity, no one knows where, but at all events independently of any thinking human brain. This ideological perversion had to be done away with. We again took a materialistic view of the thoughts in our heads, regarding them as images [Abbilder] of real things instead of regarding real things as images of this or that stage of the absolute concept.

Thus dialectics reduced itself to the science of the general laws of motion, both of the external world and of human thought — two sets of laws which are identical in substance, but differ in their expression in so far as the human mind can apply them consciously, while in nature and also up to now for the most part in human history, these laws assert themselves unconsciously, in the form of external necessity, in the midst of an endless series of seeming accidents. Thereby the dialectic of concepts itself became merely the conscious reflex of the dialectical motion of the real world and thus the dialectic of Hegel was turned over; or rather, turned off its head, on which it was standing, and placed upon its feet”.(published 1886)

The part shown in bold type is problematic because of later conclusions that this leads to. In contrast to this Karl Marx refers to Feuerbach 1804-1872 in a much earlier text amongst the philosophical and economic manuscripts previously mentioned:

Feuerbach is the only one who has a serious, critical attitude to the Hegelian dialectic and who has made genuine discoveries in this field. He is in fact the true conqueror of the old philosophy. The extent of his achievement, and the unpretentious simplicity with which he, Feuerbach, gives it to the world, stand in striking contrast to the opposite attitude [of the others]. (other young Hegelians) 

Feuerbach’s great achievement is:

(1) The proof that philosophy is nothing else but religion rendered into thought and expounded by thought, i.e., another form and manner of existence of the estrangement of the essence of man; hence equally to be condemned;

(2) The establishment of true materialism and of real science, by making the social relationship of “man to man” the basic principle of the theory;

(3) His opposing to the negation of the negation, which claims to be the absolute positive, the self-supporting positive, positively based on itself. 

Feuerbach explains the Hegelian dialectic (and thereby justifies starting out from the positive facts which we know by the senses) as follows:

Hegel sets out from the estrangement of substance (in logic, from the infinite, abstractly universal) – from the absolute and fixed abstraction; which means, put popularly, that he sets out from religion and theology.

Secondly, he annuls the infinite, and posits the actual, sensuous, real, finite, particular (philosophy, annulment of religion and theology).

Thirdly, he again annuls the positive and restores the abstraction, the infinite – restoration of religion and theology. Feuerbach thus conceives the negation of the negation only as a contradiction of philosophy with itself – as the philosophy which affirms theology (the transcendent, etc.) after having denied it, and which it therefore affirms in opposition to itself.

The positive position or self-affirmation and self-confirmation contained in the negation of the negation is taken to be a position which is not yet sure of itself, which is therefore burdened with its opposite, which is doubtful of itself and therefore in need of proof, and which, therefore, is not a position demonstrating itself by its existence – not an acknowledged position; hence it is directly and immediately confronted by the position of sense-certainty based on itself. Feuerbach also defines the negation of the negation, the definite concept, as thinking surpassing itself in thinking and as thinking wanting to be directly awareness, nature, reality.

But because Hegel has conceived the negation of the negation, from the point of view of the positive relation inherent in it, as the true and only positive, and from the point of view of the negative relation inherent in it as the only true act and spontaneous activity of all being, he has only found the abstract, logical, speculative expression for the movement of history, which is not yet the real history of man as a given subject, but only the act of creation, the history of the origin of man.

So this negation of the negation, described by Marx as “a position which is not yet sure of itself, burdened by its opposite and in need of proof”, is this not the situation that human beings find themselves in whenever they develop their own practical or social understanding? Marx here is much more thorough than Engels and their are no dialectics of nature, only the transference of the abstract and imaginary being of Absolute Spirit into the sensuous existence of the real human subject.

Errors in Engels

Engels begins his Dialectics of Nature (6) with an historical account of the development of material science but when we get to the section dealing with dialectics, he sets out 3 laws:

*     The law of the transformation of quantity into quality and vice versa;

 

*     The law of the interpenetration of opposites;

*     The law of the negation of the negation.

It's important to note that this was not published during his lifetime and was unfinished but what Engels is clearly trying to do here is to take the Hegelian dialectical method and claim that this is the same process governing physical reality. It's true that within natural science there are opposites, acid and base, metal and non-metal, prey and predator but not only do these opposites in the material world not behave dialectically, nothing useful can be obtained by attempting to apply dialectical logic to them. Jean Paul Sartre writes at length about this, remarking that even if there are some sort of dialectical laws at work in natural science, there is as yet very little information to back this up. Others including Lukacs and Gramsci were aware that this was a mistake but significantly Engels' manuscripts were discovered and published by Soviet researchers during the Stalinist era.

This approach also appears in the section devoted to dialectics in Anti-Dühring (Herr Eugen Dühring's Revolution in Science) published 1878. Engels had ceased work on his dialectics of nature in order to write a polemic against Dühring at the request of Marx who was preoccupied with writing Capital. Clearly some of Engels' postponed project crept into this polemic but whether or not Marx actually agreed with this approach to dialectics we may never know. Marx's health by this time was failing and  impeding his own progress. 

The purpose of setting out 3 dialectical laws was to bring the Hegelian framework of dialectical reason into line with natural science which of course consisted of laws, gravity; natural selection; Newtonian motion etc. But in the block quote above taken from Ludwig Feuerbach and the end of Classical German Philosophy, Engels says:

Thus dialectics reduced itself to the science of the general laws of motion, both of the external world and of human thought — two sets of laws which are identical in substance, but differ in their expression in so far as the human mind can apply them consciously, while in nature and also up to now for the most part in human history, these laws assert themselves unconsciously, in the form of external necessity, in the midst of an endless series of seeming accidents”.

This is both correct and incorrect. Correct in the sense that "these laws assert themselves unconsciously (probably more like subconsciously), in the form of external necessity, in the midst of an endless series of seeming accidents" but incorrect in the sense that "dialectics reduced itself to the science of the general laws of motion, in the external world". This second sentence is at odds with everything Marx has written on the subject.

Here we have a materialist dialectic in the sense that it acknowledges no boundary, no essential difference, between the dialectical reason as applied to the social world (the conceptual world of humans) and the application of the very same framework to natural science. What's more, there's a clear distinction between what Engels says about the negation of the negation and what Marx says in the block quote taken from his Economic and Philosophical manuscripts. In this instance Marx is philosophically a dialectician, placing the dialectic within the human cognitive, whereas Engels is philosophically a positivist, placing the dialectic in nature (as something within the fabric of external reality).

Positivism is a philosophical theory stating that certain ("positive") knowledge is based on natural phenomena, and their properties and relations. Thus, information derived from sensory experience, interpreted through reason and logic, forms the exclusive source of all certain knowledge. Positivism holds that valid knowledge (certitude or truth) is found only in this a posteriori knowledge. Verified data (positive facts) received from the senses are known as empirical evidence; thus positivism is based on empiricism.

Positivism does not of course represent the last word in the philosophy of science but if dialectical reason is to be applied it must be applied in the social and historical world which influences the choice of research field and how the historical and material circumstances of the observer influence the findings. Trofim Lysenko (pictured above) became highly prominent in Soviet agriculture for 3 decades for various reasons but his ideas, which can be correctly referred to as pseudo science, had disastrous consequences. Western science was essentially correct in its adoption of Mendelian inheritance, but of course in the absence of any genuine critical approach, pseudoscience (as is now often the case in the modern internet world)  will form in the vacuum created by an ideological rejection of accepted facts.

With the negation of the negation rendered controversial (a controversy which continues to this day) and the transformation between quantity and quality being merely an example of a dialectical relationship, what we are left with is the interpenetration of opposites, that we can wear around our neck in a Tao symbol. Stalin's official dialectic and thus the official Soviet philosophy and the one handed down through the entire Third International is reduced to Heraclitian (Heraclitus circa 500 BC) philosophy “everything flows”.

Marx's authentic dialectic becomes lost in this fog because he situates it not in the abstract fantasy of an Absolute Spirit (as in Hegel) and not in the general motion of matter as in Engels, but in the historical journey of living human subjects in tandem with their natural and constructed environment. To situate in in context and appreciate its real relevance we need to rediscover it within the concept of historical materialism where it really applies, and in order to do this we must situate it within a philosophy of praxis.

Preface to a philosophy of praxis

First of all it's necessary to  explain that philosophy breaks down into three major branches: Ontology which concerns itself with being (both living beings and things), epistemology which concerns itself with knowledge - how we know stuff and moral philosophy which I don't propose to go into here, although it does play a significant role in idealism. Praxis is the knowledge we obtain through practical activity, the process by which theory and practice come together.

Marxism represents a major break with the traditions of all of these branches, not simply because Marx was an exceptionally talented thinker in the second half of the nineteenth century (which he undoubtedly was) but because he lived at a time when Darwin was publishing On the Origin of Species (1859). The old ideas of supernatural creation were coming under intense challenge from the materialists and scientific discovery. He also lived at a time when the proletariat as class with the potential to rule for itself was rapidly coming into being, and not long after the time that revolutions had overthrown the old feudal order.

Marx proceeds from the dialectical method of Hegel but he then turns his attention to the materialism of Feuerbach which he completes - see Thesis on Feurbach (7). Whereas Hegel dispenses with the Dualism of René Descartes (1586-1650), Hegel's Monism (a unified reality) has spirit or thought at its base. To recap, Engels tells us that the Absolute Spirit:

".... “alienates” itself by changing into nature, where, unconscious of itself, disguised as a natural necessity, it goes through a new development and finally returns as man’s consciousness of himself."

Marx inverts this by basing his monism (the unified understanding of mind and matter) on living, thinking, material existence. This is the real basis of his dialectical materialism and how Marx is said to have placed Hegel back on his feet.

The confusing tendency of classical ontology to consider living beings as things and things as living beings persists into recent times. One classic comedic representation of this is John Cleese beating his car with a tree branch whilst lecturing to it. However, the commodity labour power is at one and the same time a potential owned by living breathing subjects and a thing that can be traded. Lukács adds the term 'reification' to our vocabulary to describe the process by which the human realm is turned into things under capitalism, We'll meet this term again further along but we also know the contemporary problem of corporations given rights as though they were individual subjects and what we therefore need to understand is the subject-object dialectic through which these transitions arise.

Sensuous Praxis

Although Marx never used this exact term it's a well trodden good representation of what he meant when describing how human brains learn about their environment, how theory and practice come into unity with each other, and how real human activity in turn changes that environment. Marx has this to say about Hegel's idealist notion of human activity in his Critique of Hegel's philosophy:

For Hegel the human being – man – equals self-consciousness. All estrangement of the human being is therefore nothing but estrangement of self-consciousness. The estrangement of self-consciousness is not regarded as an expression – reflected in the realm of knowledge and thought – of the real estrangement of the human being. Instead, the actual estrangement – that which appears real – is according to its innermost, hidden nature (which is only brought to light by philosophy) nothing but the manifestation of the estrangement of the real human essence, of self-consciousness. The science which comprehends this is therefore called phenomenology. All reappropriation of the estranged objective essence appears therefore, as incorporation into self-consciousness: The man who takes hold of his essential being is merely the self-consciousness which takes hold of objective essences. Return of the object into the self is therefore the reappropriation of the object. (8)

In the Marxist materialist scheme this approach is inverted. Man is not equivalent to self-consciousness (which is the cogito ergo sum - I think therefore I am - of Descartes). Rather man is a sensuous being engaged in practical activity. Human awareness and knowledge of the external world arises via the senses through this practical activity, not from speculative contemplation, because there is no Absolute Spirit and neither the idea nor the concept precede this state of affairs.  

But isn't this what we've previously described as positivism? Here is where we encounter again the dialectic. In material science the experimental procedure where practical activity reaches empirical conclusions via the senses, the information gained is always what philosophers term a posteriori (we only know the observations after we've made them). The observations are always compared with the preceding scientific framework (a priori knowledge) but essentially the experiment must be repeatable and provide the same results.

This is essentially a static process but one that works well for the material sciences because they rightly demand that experimental results ought to be repeatable under the same conditions. This doesn't work at all well when we're dealing with people or societies.

Furthermore cause and effect in the material sciences (with the possible exception of quantum theory) are generally central to the methodology. In the social sciences they can be hard to pin down, they can often chase each other around in circles with accusations and counter-accusations of "you started it" or spirals when apparently circular events turn out to be going somewhere in an unexpected direction. Dialectical reason best fits these sorts of phenomena.

In the world of ordinary human activity the human subject is in a dynamic relationship with her environment. She not only receives sensuous input, but her activity changes the environment in which the activity is carried out. Here the a priori conditions are not the body of scientific knowledge but the historical experience of the subject. Furthermore the essential framework is provided by the fact that the human subject is a social animal and this framework guides the historical experience of the subject. As a social animal, human beings will always have as their starting point a social a priori.

Furthermore, the practical activity of the ordinary human subject is not the search for knowledge as an abstract cause, not the mission of science or philosophy, but is directed towards the fulfilment of real physical needs. In essence, this practical activity is real living labour directed towards material ends, to human artefacts that are useful. What Marx reveals here is not Hegel's alienated self-consciousness at all, it's the real alienation of living subjects under an economic system that deprives the human subject of their creative freedom and deprives them of the satisfaction in recognising the products of their toil. It's the derivation of labour as the original foundation of use value which is alienated and reified (turned into a thing) under capitalist property relations.

For the sake of further clarification, the cogito ergo sum of Descartes is both epistemological and ontological (it concerns both how we know stuff and the nature of being). It is of course an important a priori in the development of philosophical thought but Marx challenges it (as it appears in Hegel) on ontological grounds.

This can be further illustrated by reference to the work of the Scottish philosopher John MacMurray, (1891 – 1976).The main themes in MacMurray's philosophy are the primacy in human life of action over theory, and the essentially relational nature of human beings. These themes are the basis for his Gifford Lectures delivered in 1953 and 1954 at the University of Glasgow, and entitled "The Self as Agent and Persons in Relation respectively".

MacMurray summed up his philosophy as follows: "The simplest expression that I can find for the thesis I have tried to maintain is this: All meaningful knowledge is for the sake of action, and all meaningful action for the sake of friendship". In dismissing the Cogito (the principle establishing the existence of a being from the fact of its thinking or awareness) and its legacy of the primacy of thought over action, MacMurray saw himself as breaking with the western philosophical tradition. However, he acknowledged the influence of Kant and Marx on his thinking.


The Marxist influence here is undoubtedly a philosophy of praxis, it cannot be anything else. The substantive point here is that Marx was himself breaking with Western philosophical tradition in his critique of Hegel. This is in fact the deeper meaning in the 11th Thesis on Feuerbach! I use an exclamation mark here for the benefit of those already familiar with it but we'll elaborate on this in the next section.


György Lukács and the subject/object dialectic

Lukács takes as his starting point, Marx's 11th thesis on Feuerbach, "The philosophers have only interpreted the world in various ways; the point, however, is to change it" . He's familiar with Anti-Duhring but rather than meeting Engels head on, he points to the omission of any reference to the subject/object relationship and has this to say:

"Dialectics, he (Engels)argues, is a continuous process of transition from one definition into the other. In consequence a one-sided and rigid causality must be replaced by interaction. But he does not even mention the most vital interaction, namely the dialectical relation between subject and object in the historical process, let alone give it the prominence it deserves. Yet without this factor dialectics ceases to be revolutionary, despite attempts (illusory in the last analysis) to retain ‘fluid’ concepts. For it implies a failure to recognise that in all metaphysics the object remains untouched and unaltered so that thought remains contemplative and fails to become practical; while for the dialectical method the central problem is to change reality(9). What is Orthodox Marxism.

What he means by this is that the human subject, who thinks and makes decisions, must come into contact with material objects and modify them. This is the deeper meaning in the 11th Thesis on Feuerbach referred to earlier. It's not merely a call to action, it's also telling us much more than that. The subject here is not only acting on the object but learning how to do this, and improving her method by trial and error. The object is also changing her, the subject. This is the true site of the materialist dialectic, the material side of which is in the object, and the dialectical side is facilitated by the cognitive processes of the subject.

 

In Hegel (in The Logic) the Absolute Spirit does the dialectics, it goes through Notion (idea, object, subject), through Essence (actuality, appearance, reflection) to Being (quality, quantity, measure). To make this a materialist dialectic, it suffices to transfer this scheme of Hegel's from the absolute spirit to the human subject. To do anything else returns it to mysticism or makes it entirely redundant. In fact both these things happen, the dogmatist whilst professing orthodox Marxism often precedes without considering any dialectics at all, or might confine dialectics to the antagonisms of competing classes and nothing else. If you ask where else the dialectic might be found this is often met with head shaking obfuscation.

To which it might be tempting to answer in the words of Engels: "self-movement of the concept going on from eternity, no one knows where, but at all events independently of any thinking human brain" (perhaps)?

  

Engels

Lukács goes on to say that the materialist dialectic is a revolutionary dialectic and reinforces what we've already covered. I'll return to this point in summarising but his quotations from Marx are very pertinent. The issue turns on the question of theory and practice not merely in the sense given it by Marx when he says in his first critique of Hegel that “theory becomes a material force when it grips the masses.”  Lukács adds this:

"Even more to the point is the need to discover those features and definitions both of the theory and the ways of gripping the masses which convert the theory, the dialectical method, into a vehicle of revolution. We must extract the practical essence of the theory from the method and its relation to its object. If this is not done that ‘gripping the masses’ could well turn out to be a will o’ the wisp. It might turn out that the masses were in the grip of quite different forces, that they were in pursuit of quite different ends. In that event, there would be no necessary connection between the theory and their activity, it would be a form that enables the masses to become conscious of their socially necessary or fortuitous actions, without ensuring a genuine and necessary bond between consciousness and action". (9)

The part in bold type is relevant when we are trying to fully understand the basis upon which sections of the working class are making political decisions. It's not sufficient to imagine that workers always move in a way which serves their interests as a class merely on the basis that they are workers, and I'll return to this in the next section but this would be an error inherent in what I referred to in my introduction as "scholastic dogmatism and the cult of the textbook".

Before moving on to the next section, In his History and Class Consciousness, (9) Lukács offers the following quotes from Marx: "It is not enough that thought should seek to realise itself; reality must also strive towards thought.”(10) This a brilliant and profound insight from Marx and distinguishes his materialism from Hegel's pure idealism. He's saying that we have to understand how to change the world through practical activity in order that it might better conform to how we imagine things ought to be. This is reinforced by the second quote; “It will then be realised that the world has long since possessed something in the form of a dream which it need only take possession of consciously, in order to possess it in reality.” (11)

Lukács interprets this as follows: 

"Only when consciousness stands in such a relation to reality can theory and practice be united. But for this to happen the emergence of consciousness must become the decisive step which the historical process must take towards its proper end (an end constituted by the wills of men, but neither dependent on human whim, nor the product of human invention). The historical function of theory is to make this step a practical possibility. Only when a historical situation has arisen in which a class must understand society if it is to assert itself; only when the fact that a class understands itself means that it understands society as a whole and when, in consequence, the class becomes both the subject and the object of knowledge; in short, only when these conditions are all satisfied will the unity of theory and practice, the precondition of the revolutionary function of the theory, become possible" (9)

 

The Epistemology of Class Consciousness

Epistemology as previously explained, is study of how we know stuff. There are those who imagine that proletarian class consciousness is a given, not necessarily innate, but something that inevitably arises from material conditions . This is dogmatic, unsubstantiated and unexplained. If this were true then there would have been global socialist revolution more than a hundred years ago.

Here we must return to the Kantian terms a priori and a posteriori.  Some things we are told; the things we learn from parents, teachers, the newspapers, books, television, people we meet. The list is extensive. some things, the a posteriori variety we find out for ourselves through our senses, our eyes, ears touch etc. We subject both sources of knowledge to dialectical scrutiny both consciously but often subconsciously (what we've previously referred to as “a position which is not yet sure of itself, burdened by its opposite and in need of proof”). New knowledge is compared with what we've learned before by either method.

Antonio Gramsci 1891-1937 (also a proponent of philosophy of praxis) is fairly well known for coining the phrase "Cultural Hegemony", though this isn't entirely original. Gramsci derives this from Marx writing in the German Ideology 1845 (12). 

"The ideas of the ruling class are in every epoch the ruling ideas, i.e. the class which is the ruling material force of society, is at the same time its ruling intellectual force. The class which has the means of material production at its disposal, has control at the same time over the means of mental production, so that thereby, generally speaking, the ideas of those who lack the means of mental production are subject to it. The ruling ideas are nothing more than the ideal expression of the dominant material relationships, the dominant material relationships grasped as ideas; hence of the relationships which make the one class the ruling one, therefore, the ideas of its dominance. The individuals composing the ruling class possess among other things consciousness, and therefore think. Insofar, therefore, as they rule as a class and determine the extent and compass of an epoch, it is self-evident that they do this in its whole range, hence among other things rule also as thinkers, as producers of ideas, and regulate the production and distribution of the ideas of their age: thus their ideas are the ruling ideas of the epoch. For instance, in an age and in a country where royal power, aristocracy, and bourgeoisie are contending for mastery and where, therefore, mastery is shared, the doctrine of the separation of powers proves to be the dominant idea and is expressed as an “eternal law”".

Far from acting on the basis of some magical unexplained necessity of just being working class or just living in unpleasant conditions, workers carry around in their brains all sorts of notions, some of which they've learned, some of which they've figured out for themselves (here we should recall "It might turn out that the masses were in the grip of quite different forces"  but to figure our something for themselves, which is to any extent free of the dominant bourgeois ideology, this has to arise from sensuous lived experience. It has to be a posterio knowledge. Yes, they can learn some of sense of class consciousness from others but for this has to be powerful enough to break the cultural hegemony.

Yes, of course, working class culture exists in the sense that the environment they occupy is not Knightsbridge or Chelsea and they have much more limited budgets than the bourgeoisie but that doesn't explain the existence of the working class Tory, Tressel's "Ragged Trousered Philanthropists", the pictures of the Queen on living room walls and the vulnerability to xenophobic scape-goating.

Class consciousness starts in the workplace, in the realisation of collective interests against private profit, and it's forged in struggle, the most practical of any means to learn through the senses, lived experience and active social participation, in forms that are alien to bourgeois cultural hegemony. This is a philosophy of praxis.

Summary

We've looked at the historical development of Marxism since the death of this exceptional revolutionary thinker in 1883. We've observed the Cartesian concept of Dualism ( the separate categories of mind and matter disconnected from each other). These categories persist into the present in narratives and persist in their disconnection through the coexistence of pure idealism with vulgar materialism, even in the brains of those who call themselves Marxists. We've drawn attention to scholastic textbook, quasi-religious interpretations which persist in a circular 3 dimensional version of history where history continuously repeats itself.

We've traced the process by which Marx's magnificent insights were, both deliberately and accidentally buried and identified his real connection with Hegel and Feuerbach. We've dug up Hegel to examine him and hopefully learned that Hegel's dialectic was not wrong, rather it was wrongly situated in the idealist framework in which he constructed it.  We've understood, with greater clarity, how Marx put Hegel back on his feet.

Hopefully we've demystified the dialectic and the dialectical. Not laws of motion belonging to material science, there are no equivalent dialectics of nature. There are processes happening in human brains and because we are social animals, with complexity of communication, also in human society (the hive brain). We are actually creatures of dialectical reason and with that conclusion, dialectics is demystified, but must be added to our awareness and materialised.

It's not sufficient to know this and place it on the bookshelf. Theory informs action and action informs theory. This is implicit in a philosophy of praxis, the missing piece of the jigsaw.

Human history is organic in the sense that it it doesn't just happen by a totalisation of mechanical events. It is recalled, considered, processed and consciously directed up to a point, but here again we meet the restriction imposed by Kant's a priori.

As Marx suggested in his 18th Brumaire of Louis Napoleon, "The ghosts of long dead generations weigh heavily on the brains of the living"(13). This is the Kantian a priori in a dialectical struggle with his a posteriori, as Marx himself informs us this is: “a position which is not yet sure of itself, burdened by its opposite and in need of proof”. A truth which is now, is tomorrow's chip paper. All knowledge is provisional. We've distinguished between certain ideas of Engels and their superior expression though Marx, whilst he was alive

What is exceptional in terms of Marx's contribution to the sum totality of human knowledge and self awareness, is his solution, via Hegel and Feuerbach, to the mystery of mind and body. Scholars are only vaguely aware of his dialectical approach to political economy but they are aware and this awareness persists because it's accurate. Those that are acutely aware and call themselves Marxists, need to rediscover Marx's dialectic which has as an essential component, a philosophy of praxis, the only possible interface of mind and matter.

This is how Hegel's metaphysical and mysterious dialectic is materialised and de-mystified.

These enormous insights need to be removed from dusty shelves and restored.

Philosophers have interpreted the world in various ways, the point is to change it!

 

First published in International Green Socialist  https://internationalgreensocialist.wordpress.com/

 

References

(1) Philosophical and Economic manuscripts https://www.marxists.org/archive/marx/works/1844/manuscripts/preface.htm
(2) Critique of Dialectical Reason https://libcom.org/files/jean-paul-sartre-critique-of-dialectical-reason-volume-1.compressed.pdf
(3) History and Class Consciouness https://www.marxists.org/archive/lukacs/works/history/
(4) Hegel’s Logic https://www.marxists.org/reference/archive/hegel/works/hl/hlconten.htm
(5) Ludwig Feuerbach and the end of Classical German Philosophy https://www.marxists.org/archive/marx/works/1886/ludwig-feuerbach/
(6) Dialectics of Nature https://www.marxists.org/archive/marx/works/1883/don/ch01.htm
(7) Thesis on Feurbach https://www.marxists.org/archive/marx/works/1845/theses/theses.htm
(8)Critique of Hegel's philosophy in general https://www.marxists.org/archive/marx/works/1844/manuscripts/hegel.htm
(9) What is orthodox Marxism https://www.marxists.org/archive/lukacs/works/history/orthodox.htm
(10) A Contribution to the Critique of Hegel’s Philosophy of Right https://www.marxists.org/archive/marx/works/1843/critique-hpr/intro.htm
(11) Marx to Ruge, Kreuznach, September 1843 https://www.marxists.org/archive/marx/works/1843/letters/43_09.htm
(12) The German Ideology https://www.marxists.org/archive/marx/works/1845/german-ideology/ch01b.htm
(13 The Eighteenth Brumaire Of Louis Napolean https://www.marxists.org/archive/marx/works/1852/18th-brumaire/ch01.htm
 

 

You, the EU and Indyref 2: Changing the terms of the debate

Steve Arnott examines the arguments on the indy/EU question, and asks: how do we get YES/Leave voters and YES/Remain voters firmly on the same independence bus?

 

I’ve had a lot of overly worried YES supporters asking me a lot of questions recently: Why are the opinion polls refusing to budge for YES despite some people moving over from the NO side? Why have Nicola’s personal approval ratings fallen? Could the Tories even be making a long term comeback in Scotland? Could we lose a majority of pro-indy MSPs in the 2021 Holyrood elections?

First of all I try to reassure my friends about the Scottish Tories. Their minor surge is due to diehard British identity ex Labour voters swinging to them in desperation - but that has its limits. It's not ruled out that the SNP/pro-indy ‘coalition’ could lose their majority in 2021, of course, but I wouldn't advise anyone to bet the house on it.

The declining popularity ratings for Nicola Sturgeon, in comparison to the heights she hit in 2014 and 2015, probably reflect the root problem. I would argue that the SNP leadership and their supporting chatterati have been operating in a bit of a middle class, middle left EUphile bubble, and there's been a disconnect between what they see as the reality of the overall political situation, and that situation as it really is on the ground.

Anyone working in a predominantly working class environment or living in a working class housing scheme who actually speaks to people about indy knows the score. There’s a layer of working class YES voters who’ve cooled towards the SNP, Sturgeon and Indy because the overwhelming message coming at them through mainstream media is that indyref 2 is now principally a way of staying in the EU, an elitist, undemocratic big business institution unaccountably beloved of some progressive elites but distrusted by many ordinary people.

Sometimes, in politics, as in football, the result doesn't really reflect the underlying realities of the game. I have said in the past that those who believe/believed that the 62%-38% June Brexit result in Scotland reflected some kind of 'settled will' of the Scottish people in favour of all things EU, and that that was the basis for successful second indyref strategy, were deluding themselves.

Why?

Because considerable numbers who voted Remain were voting AGAINST Farage, UKIP, the Tories and Little Englander xenophobia rather than FOR the EU.

Others voted Remain principally because Nicola had said it could be a route to a second indyref – in other words their primary concern was, in reality, Scottish independence as soon as possible, rather than any strong commitment to the EU.

Most polls and the recent Scottish Social Attitudes Survey confirm this picture, with Professor John Curtice – who I think has no axe to grind either way – saying that there remained considerable EU scepticism amongst the Scottish population and that the SNP leadership might be well advised ‘to consider offering a (Scottish) EU referendum’ post independence’.

 The last lines of defence against this appear to be a) we’ve already had a referendum in Scotland and Remain won, and b) the EU is the raison d’etre for indyref 2, and having a second referendum on the EU would undermine that. 

Both of these arguments are logically false, politically suspect and, in the longer term, palpably unsustainable.

For a) - aside from the arguments already noted - the question people answered last June was ‘Should the UK be a member of the EU?”

The question ‘Should an independent Scotland be part of the EU?’ has never been put.

Arguments for the UK remaining in the EU – such as protecting immigrants or protecting workers’ rights from Tory Westminster – would not necessarily apply in an independent Scotland, which could legislate for such protections itself.

And finally, circumstances may be very different by the time Scotland becomes independent and the UK is outside of the EU – that’s three to four years away even on Nicola’s own timetable.

For b) no-one on the YES has ever argued that the democratic deficit thrown into sharp relief by the Tories hard Brexit position, and the SNP and Greens manifesto positions, do not constitute a mandate for a second referendum. But the reason or trigger for indyref 2 need not be the purpose of indyref 2; the reasons put forward for having the last referendum were manifold, but they were not the purpose of the referendum itself, which was to give Scotland the choice to be independent.

Similarly, it was taken as a given last time around that the choice to be independent was not necessarily an endorsement of all things SNP, or of SNP policy positions. This enabled a diversity of visions to be part of one YES movement – yet so much of the language this time around appears to say ‘a vote for Scottish independence will effectively also be a vote to stay in the EU…and if you don’t like it tough, that’s SNP policy’.

But it’s far from the case that everybody who voted SNP in 2015 or 2016 – those who have given the SNP the mandate to call indyref 2 –  voted in support of a pro-EU outlook. A number of respected pollsters and poll researchers have estimated 1 in 3 SNP supporters and 1 in 3 party members will have voted Leave in last June’s EU referendum.

The SNP have painted themselves into a corner on this; the incessant talk about ‘our place in Europe’ has left working class YES voters who voted Leave wondering what their real priority is.

For every NO pro-EU voter who gets on the YES bus, it would seem that a YES Leave voter calls “Stop, I want to get off.” That is a situation that cannot deliver the united majority we need to secure independence, whenever indyref 2 is finally held.

However, at last there are at least some signs of recognition of that hard political reality from the Scottish Government.

Students of the semantics of political language have indeed noted a shift from some SNP spokespeople over the week running up to and beyond the SNP spring conference, and by Nicola herself. Indyref 2, we are told now is ‘not just about Europe’ but ‘the kind of Scotland we want to see’. It’s about avoiding, potentially, ‘Tory Governments for the next fifteen years’. Above all, it’s about giving the Scottish people ‘choice’.

All this is welcome as far as it goes, but it’s going to take more than some carefully triangulated words to unpaint the SNP from their corner, to bring back onto the YES bus the kind of EU sceptic voters we have seen switching from YES back to NO on telly vox-pops every night, AND to keep those NO voters who’ve switched to YES because they want to stay in the EU.

(I hope it’s not stressing the obvious to make clear again that my starting point in all of this is to try and get both sets of voters to vote YES in indyref 2).

In other words, it’s fine to talk about ‘choice’, but how do we make that real for people in the cities, towns and villages of Scotland?

From day one after the June Brexit vote, I and The Point online platform, along with a few others, have argued that ONLY the promise that an indy Scotland will have its own referendum on the question of EU membership can now offer meaningful choice, and cut the Gordian knot we appear to have tied ourselves in.

As time has progressed growing numbers of SNP and YES voters are coming to see the commonsense of that position from both a principled, and strategic, point of view. It can take a lot to shift politicians from previously held conceptions - even the best of them - but we must hope for the best and make our arguments. Politics is concrete.

Did not the referendum of 2014 prove that direct democracy can engage and motivate political participation and civil engagement on a much higher basis than old fashioned party politics? And if, as Nicola Sturgeon has been stressing these last few days, voting YES in a second indyref is most of all about that key word ‘choice’, why not do ourselves a huge favour and offer sovereign Scots their own EU referendum during the lifetime of the first Parliament of an independent Scotland? Such a move would overcome the issue as a potential issue of division for our indyref. 

It would create a pole of attraction that, handled properly, can appeal to both those NO voters come over to YES, and those EU sceptical YESSERs we currently seem to be losing.

For good measure – if an independent Scotland means giving a sovereign people real choice and not just ‘politics as usual’, why not promise referenda on membership of NATO, and on whether or not we retain the monarchy or become a modern, democratic republic at the same time? What better message of ‘real change for Scotland’ can we give potential YES voters than saying that the ‘choice’ independence brings will mean more than just your right to elect the government of your choice every five years – important as that is?

That it means big constitutional and existential decisions that go beyond party politics will be decided by direct democracy?

Such a bold offer would burst open the currently narrow channels of debate and allow us to build the consistent majority we need to finally deliver the dream we all share – an independent Scotland.

 

Steve Arnott.

 

 

Other articles by Steve Arnott in The Point include:

 

Arthur C Clarke: A Very Modern Odyssey

 

A Tribute to Neil Armstrong... or 'Where's that f*****g space elevator?

 

The European stem cell research ban – why and how we should fight it

 

Enriching Scotland’s Common Weal through Scottish Inventions and Innovations

 

(science and ideas)

 

 

 

The Conspiracy of Doves I – Darwin, Marx and The Conspiracy of Doves

 

The Conspiracy of Doves II - Socialism and the selfish gene: A tale of quiz shows, game theory and natural selection

 

The Conspiracy of Doves III - The Theory of Neuronal Group Selection, part one

 

Postcapitalism: An Overview – Part One

 

(Darwinist-Marxism, evolution/revolution, post-capitalism)

 

 

 

In Praise of Beethoven

 

Teaching Tom…and Dick and Harry and Jane: A Personal Reply to Tom Hunter on Scottish Education

 

The Culture: Iain Banks’ Greatest Creation

 

(culture, education, The Culture)

 

 

 

Reversing privatisation and PFI using a ‘windfall’ financing model

 

2013, A Year to Go: Independence and Raising the Game in Phase 2

 

Achieving gender balance in an Independent Scottish Parliament (co-authored with Liz Walker)

 

Taking back what’s ours: Why we need a Public Commission on Public Ownership

 

Max the YES: Tactical Voting for Holyrood 2016, Yes or No.

 

(independence, socialism, progressive policy ideas)

 

 

Nobody ever said it would be easy...

On seeing Orcas in Burra Sound

 

(poetry, verse, fiction)

 

Steve’s novel, Pilot of the Storm, First of ‘The Star King’s Proxy’ trilogy, is also available to buy or rent at…

 

https://www.amazon.co.uk/Pilot-Storm-Book-StarKings-Proxy-ebook/dp/B00JGF0P6Y/ref=sr_1_1?s=digital-text&ie=UTF8&qid=1483670725&sr=1-1&keywords=Stevie+Arnott+-+Pilot+of+The+Storm

 

An Inconvenient Truth: Why YES shouldn't place all it's indyref 2 eggs in the EU basket

 

AN INCONVIENIENT TRUTH…CAN STILL SHOW A WAY FORWARD.

An open letter to all YES supporters and Independenistas

 

We hope the meme-pic accompanying this post/article at least gave you pause to think.

Perhaps you are already committed to the idea of independence in Europe and genuinely believe there is a binary choice between being ruled by Westminster and remaining in the EU.

Perhaps you are one of those who believe Scotland should be independent of both Westminster and Brussels.

Perhaps you are the part of a lesser heard majority, who don’t hold a hard and fast position on the EU, but believe Scottish Independence should come first and foremost, and that other issues should be sorted out later.

Whichever of these groups you belong to…and we believe every part of the YES Family should be respected, because all of these views are sincerely held within YES …we hope our wee meme has given you pause for thought.

Why?  Because every strategist, platoon commander and foot-soldier trying to win a war, let alone a battle, should be prepared to review their position when new information becomes available.

If they don’t, they risk setback and, possibly, in the worst case scenario, defeat.

We have always argued that it is both a mistake strategically, and a mistake in principle to base the winning of Scotland’s independence on retaining membership of the EU.

It’s a mistake strategically because more than 1 in 3 YES voters voted to Leave the European Union. A campaign to win indy based on staying in the EU is, therefore, by simple mathematical calculation, a very risky strategy indeed.

It’s a mistake in principle, because, in principle, the Scottish people are sovereign. That’s what all of us in the YES movement are fighting for, isn’t it?  That the sovereign Scottish people should decide on the things that matter. Yet how can they decide these things IF KEY MATTERS ARE DECIDED FOR THEM prior to them becoming sovereign in an indy Scotland?

Our meme-pic is important because – up until now – some of those within the SNP and the wider YES family have said that the Brexit referendum held by the Tory UK Government in June last year had already decided these things. 62% of Scots voted to stay in the EU, they said. The matter is decided. Get over it.

For our part we pointed out that 62% had voted FOR THE UK to remain in the EU, but that many had done so because either they thought they were being tipped a nod and a wink by Nicola that such a vote was needed to trigger indyref 2, or simply because they were voting AGAINST Farage and UKIP, rather than positively for the EU.

We also pointed out that the vote was a vote for the UK to stay in the EU…and that the question of whether an indy Scotland should be in the EU had never, in fact, been put to the Scottish people.

62%...62%...62%...voted to stay in the EU was the mantra thrown back at us.

And yet – as the meme-pic that accompanies this post indicates - at the very first time of asking, this week’s Ipsos Mori poll for STV shows that less than half the Scottish population (48%) wants an independent Scotland to be part of the EU, and that 44% want Scotland to be outside the EU, either as part of the single market like Norway (27%) or not even part of the single market (17%).

Even more importantly, the poll indicated that a higher percentage of the population wanted independence than wanted ‘independence within the EU’.  This is an astonishing statistic when you consider that all of the Establishment parties in Scotland (Unionist and pro-indy) backed Remain, and that Scotland’s foremost pro-independence party, the SNP, has enthusiastically promoted the idea that staying in the EU is the primary concern of most Scots and some kind of Golden Path to delivering victory in indyref 2.

These poll results show a somewhat different picture – one in which we can see that a campaign to win indyref 2 on the basis of ‘staying in the EU’ is very risky indeed.

However, as those who have followed our regular posts on this know well, we have never just been negative nay sayers on this issue. We want a strategy for indyref 2 that can win, and that can unite ALL YES voters and potential YES voters, regardless of how they voted in the Brexit referendum and feel about the EU.

To that end we have consistently put forward a simple strategy we believe is capable of uniting the whole YES family – and potential new YESSER’s – on a path towards victory.

Firstly, let the next indyref campaign be about ALL the good reasons for supporting independence and not just a single issue campaign around membership of the EU. By all means stress the democratic deficit shown up by the Brexit result. By all means highlight the Tories dirty and dishonest plans to use Brexit to undermine the devolution settlement. Just don’t make it solely (or mainly) about the EU. Trident, poverty, illegal foreign wars, austerity and public sector cuts, land ownership, Tory Government’s we never elect imposing their class hatred and greed on the Scottish people…all of these and more are reasons we can build a winning YES vote around, next time around.

Secondly, let’s recognise the sovereignty of the Scottish people and the power of mass direct democracy in our new independent Scotland.

On key constitutional issues, like the EU, that otherwise might divide the YES movement we put forward the idea that we should them aside to be decide by a referendum of the Scottish people AFTER independence is achieved.

Concretely, we are campaigning for the idea that the Scottish Government promises the Scottish people a three question referendum within the lifetime of the first elected Parliament of an independent Scotland.

That three question referendum could then decide on important constitutional issues that might otherwise divide our fledgling YES vote.

We suggest the referendum could consist of the following three questions:

1)      Should our independent Scotland be a member of the EU – YES or NO?

2)      Should our independent Scotland be a member of NATO – YES or NO?

3)      Should our independent Scotland retain the monarchy or become a republic?

 Monarchy or Republic?

The exact wording of the questions can be argued back and forth and agreed by consensus, of course, but the basic principle remains.

By promising to let the people decide these issues in an indy Scotland we free our energies and our potential vote to rally behind YES.

We signal that in an independent Scotland the people will be truly sovereign and that key existential and constitutional matters will always be decided by direct democracy.

We show that voting YES is about gaining our democratic freedom and not just about the politics and vision of any single party.

We show to everyone that, whatever their view – on EU, NATO or anything else - they will have a direct stake and the ability to argue their case in an indy Scotland.

What’s not to like?

It is our believe that this simple two pronged strategy, taken up by the YES movement, taken up by the Scottish Government, would have the ability to move the pro-YES vote in the polls from 50% to 60-65% - and help us all complete the journey to the independent Scotland we all want and desire.

So let’s look at the new information and open our minds to the possible.

We have nothing to lose and an independent Scotland to win.

 

Steve Arnott, March 10th 2017

 

 

Other articles by Steve Arnott in The Point include:

 

Arthur C Clarke: A Very Modern Odyssey

 

A Tribute to Neil Armstrong... or 'Where's that f*****g space elevator?

 

The European stem cell research ban – why and how we should fight it

 

Enriching Scotland’s Common Weal through Scottish Inventions and Innovations

 

(science and ideas)

 

 

 

The Conspiracy of Doves I – Darwin, Marx and The Conspiracy of Doves

 

The Conspiracy of Doves II - Socialism and the selfish gene: A tale of quiz shows, game theory and natural selection

 

The Conspiracy of Doves III - The Theory of Neuronal Group Selection, part one

 

Postcapitalism: An Overview – Part One

 

(Darwinist-Marxism, evolution/revolution, post-capitalism)

 

 

 

In Praise of Beethoven

 

Teaching Tom…and Dick and Harry and Jane: A Personal Reply to Tom Hunter on Scottish Education

 

The Culture: Iain Banks’ Greatest Creation

 

(culture, education, The Culture)

 

 

 

Reversing privatisation and PFI using a ‘windfall’ financing model

 

2013, A Year to Go: Independence and Raising the Game in Phase 2

 

Achieving gender balance in an Independent Scottish Parliament (co-authored with Liz Walker)

 

Taking back what’s ours: Why we need a Public Commission on Public Ownership

 

Max the YES: Tactical Voting for Holyrood 2016, Yes or No.

 

(independence, socialism, progressive policy ideas)

 

On seeing Orcas in Burra Sound

 

(poetry, verse, fiction)

 

Steve’s novel, Pilot of the Storm, First of ‘The Star King’s Proxy’ trilogy, is also available to buy or rent at…

 

https://www.amazon.co.uk/Pilot-Storm-Book-StarKings-Proxy-ebook/dp/B00JGF0P6Y/ref=sr_1_1?s=digital-text&ie=UTF8&qid=1483670725&sr=1-1&keywords=Stevie+Arnott+-+Pilot+of+The+Storm

 

Leading The Way - Highland Socialist Alliance

2016 has been somewhat of a disaster for the left despite relative successes. We have seen Sanders and Corbyn rise in popularity which has brought left wing ideals back into the mainstream in the UK and US. Yet, on the other hand we have seen a huge increase of support for right wing politics. The election of Trump as US President, the Tories solidifying their position in the polls and a massive surge in far right groups across Europe. There are many reasons for socialists to feel disheartened and even disillusioned with it all, particularly after the dismal showing in the Scottish elections for socialist groups. However, there is a small glimmer of hope. However small it may be, it is there and it will grow.

I am a firm believer of changing things from the bottom up. Starting in our local areas, find something which will connect and resonate with local people then build. It is not about simply shouting socialist ideals in the faces of people on the local high street, it begins by opening dialogue within communities, towns and regions then growing cooperation and relationships. One tactic will not work for every region, it is our duty as activists to identify what could work in our areas and build upon that.

In the Highlands something somewhat exciting is happening. A handful of activists identified a tactic which could work up here and we have gone for it. Saturday 5th November saw the first meeting of the reorganised Highland Socialist Alliance take place. The HSA is not a new idea - we had some success spearheading campaigns such as HighlandsNo2BedroomTax in the past - but this time we could do so much more. The Highlands has long been removed from sectarian politics of the central belt. Groups have cooperated and joined campaigns together regardless of party. Following from the poor Scottish Election results, it was decided that once again we should reorganise the HSA. This time however, we will make sure that it is done properly.

Within a few days we had agreement from RISE, SSP and Solidarity Highland branches to come together to form a campaigning alliance. While each individual groups numbers are small, we have agreed that together we can make a considerable change to the politics in the Highlands. From campaigning on national and international issues, we will be fighting against the massive cuts soon to be implemented by the Highland Council. This is not an electoral alliance by any means, we have simply identified that we can campaign more efficiently together than we can apart.

Of course we are not only restricted to members of these three groups, socialists of all groups and none are encouraged to join our alliance. We agreed that we will put out a hand to all socialists who may be interested in campaigning for socialism in the region. After lengthy discussion we also agreed on the following; That every meeting must be followed by an action in order to prevent constant meetings with no actual activism. That every group can use and share HSA materials on their individual stalls and that each group can have their own materials on HSA stalls. There was also a consensus that we should try to focus our stalls and campaigns on single issues each time such as council cuts for instance. Between now and new year each member was also tasked with thinking of how we can put forward real alternatives towards council cuts coming to the Highlands without simply falling into the old trap of shouting "No Cuts".

We have set out small but important guidelines on how to go forward and how we will instil change. Within the next couple of weeks we are hoping to be out on the street together – united - talking to people and taking capitalism head on from the bottom-up. We hope we can be a beacon of light and show the way for socialists across Scotland.

HSA Facebook Page

Beyond Brexit

Brexit and Beyond from a Marxist perspective. "Only a complete pedant could argue that a victory for Brexit wasn't a major blow to capitalism and a bloody nose for the elites, " argues Bruce Wallace

 

"Man makes his own history, but he does not make it out of the whole cloth; he does not make it out of conditions chosen by himself, but out of such as he finds close at hand."

Karl Marx, The Eighteenth Brumaire of Louis Napoleon 1852

 

On the 23 June 2016 Britain voted in a referendum to leave the European Union after forty-three years of membership. 17,410,742 voted to Leave (51.89%) and 16,141,241 to Remain (48.11%) on a 72% turnout.

I'm of an age that has allowed me to experience Britain both joining the EU and now leaving it. As a Marxist and political activist I have been involved, in one way or another, in the unfolding of Britain's European story.

Full disclosure: I voted for Brexit, so I make no apology for my partisan musings, but I've never believed in the idea of the detached objectivity of the commentariat when it comes to the clash of opposing social forces.

A lot of people woke up on Friday 24 June to a new political landscape. I didn't because I hadn't been to bed. I watched the referendum drama live on TV as Facebook messages arrived from around the world asking me: "what is happening?"

When the result came in from Newcastle at about 2am that Remain had achieved a narrow win when they were expecting a crushing victory, the establishment elites knew the game was up. A friend from Sweden sent me a graph showing the plummeting value of the pound. It fell six percent in five minutes.

Leon Trotsky long ago pointed out that the confidence of the ruling class could best be measured by studying the movements of the stock exchange. The FTSE was plunging along with sterling. Only a complete pedant could argue that a victory for Brexit wasn't a major blow to capitalism and a bloody nose for the elites.

No more was necessary than to look at the faces of the commentariat as they tried to mentally adjust to the unthinkable, unable to conceal their outrage and shock. The day before, every newspaper had front pages announcing a narrow win for Remain. Better still were the ashen faces of the Remain politicians who thought parliamentary cretinism would resume as usual once the EU question had been put to bed for a generation.

One Labour MP, Keith Vaz, was interviewed in the early hours of the morning almost in tears, saying it was a "terrible ... terrible decision for our country." The ex-Liberal Democrat leader Paddy Ashdown tweeted "God help our country!"

The unexpected result reminded me of words in a Jack London essay attributed to "some Frenchman" who said: "The stairway of time is ever echoing with the wooden shoe going up, the polished boot descending."

The first polished boot to descend was that of the Tory Prime Minister, David Cameron, who announced his resignation before breakfast.

This was quickly followed by the Governor of the Bank of England, Mark Carney, announcing that £250 billion would be made available to stabilise the pound and the markets. A tidy sum. Equivalent in fact to Scotland's entire government budget for six years and made available by the same government that told us there was no money left for jobs or services.

David and Goliath

One must reflect on the scale of this result in terms of the opposing forces. All of official society was for Remain. Every major political party campaigned for Remain. The Tories and their government, the Labour Party, the Liberal Democrats, the Scottish National Party and the Greens all backed a Remain vote. Behind them stood most of big business and the representatives of big capital including the IMF and Confederation of British Industry. Barack Obama and Hillary Clinton had called on the British people to vote Remain along with every major politician in Europe.

The Labour Party led their own campaign for a Remain vote and, to his credit, its leader Jeremy Corbyn refused to share platforms with any Tories campaigning for Remain because of their toxicity to working class voters. Corbyn was also critical of the EU, which has probably saved his party from oblivion in working class areas in the next election. Corbyn was practically a prisoner of his pro-EU Parliamentary party and had little room to manoeuvre, but he was much closer to his electorate than Cameron and the Tories were to theirs .

On the day before the poll every surviving former Prime Minister (John Major, Tony Blair and Gordon Brown) came together with Cameron and other political leaders to plea for a Remain vote. The Trade Union Congress and most of the big unions also supported a Remain vote.

I received a letter from Dave Prentis, the general secretary of my trade union, Unison, the week before the referendum. The letter urged me to vote Remain allegedly to save jobs and protect workers' rights. I threw it away. Prentis, who is supposed to be a trade unionist, was a non-executive director of the Bank of England till 2015, for which he received a total remuneration of £165,458. Ample proof that the capitalist elites penetrate even into the tops of the trade union movement.

The media machine, with some notable exceptions, pumped out Remain propaganda for months before the poll, issuing portents of doom in the most cataclysmic and lurid terms. David Cameron suggested a Brexit vote would trigger World War Three (Mirror, May 9). Britain would go into recession, shed hundreds of thousands of jobs and end up marooned as an isolated island off the coast of the continent with zero influence.

We would be denied entry into the single market. A Brexit vote would practically mean the end of Western civilisation as we know it. I'd heard this sort of stuff before: when I voted for Scottish independence in the 2014 referendum.

The hated Tory Chancellor George Osborne (also for the chop) announced the need for an emergency "punishment budget" with massive spending cuts and tax rises of £30 billion should Britain vote Brexit. 65 Tory MPs immediately announced they would vote against it. That plan was discretely buried when the Remain camp realised it was a spectacular own goal. Remain's "project fear" (a term also used to describe the establishment's campaign against Scottish independence) was clearly failing to scare people.

The official campaign on the Brexit side could hardly be described as a team of heavy hitters. Its front men were the ex-mayor of London and Tory MP, Boris Johnson, and the Tory Secretary of State for Justice, Michael Gove. Behind them were a number of cabinet members and Tory Eurosceptic MPs.

The UK Independence Party (UKIP), led by the indefatigable ex-stockbroker and populist windbag Nigel Farage MEP, complemented the official Vote Leave campaign. There was also a small group of MPs from Labour Leave, led by Kate Hoey.

Ignored by the media was a campaign for a left leave or Lexit from the EU, which was supported by the small revolutionary groupings of the Socialist Party, the Socialist Workers Party, the Communist Party and the Rail Maritime and Transport union. (And Solidarity in Scotland – Ed)

The only metaphor that comes to mind is of a David and Goliath struggle. Bookmakers favoured a Remain vote as the favourites until the Newcastle result came in. The victory for Brexit was truly one of shock and awe!

A Working Class Revolt

Peter Hitchens, the eccentric right wing ex-Marxist journalist and anti-EU campaigner, explained the day after that he wasn't shocked by the result. He recognised that the old working-class Labour vote was gathering behind Leave and combining with the old guard of the Tories. That would swing it.

Hitchens was right. The decisive force in the result of the referendum was the working class and all the electoral data supports it. A map of the referendum results in Britain testifies to the solid Leave vote in traditional working-class areas. We witnessed the reappearance, Hitchens explained, of something we hadn't seen for some time. The traditional Labour vote, having been ignored by the Blairite leadership of the Labour Party for many years, had reasserted itself and, unlike in a general election, had found a way of expressing itself. A way to give the people it didn't like a kicking.

The result revealed a yawning class divide. The highest results for Remain were in the prosperous cosmopolitan cities of London and Edinburgh. In Scotland, for specific national reasons, the majority voted for Remain. The north of England, the midlands and Wales were overwhelmingly for Leave.

This was no surprise. Years of austerity, neglect and political detachment have left a legacy of simmering resentment that burst out in a wave of anti-government feeling and protest through the referendum ballot box. 75% of British Parliament members calling for a Remain vote didn't succeed in winning more than 50% of the electorate to support them. If ever proof of the gaping disconnect between the electorate and their political representatives was needed, this is it.

The result was a profound shock for the Blairite consensus in parliament that had existed for twenty years. The only difference between the Tories and the Labour Party in Parliament was that of austerity or 'austerity-lite.' Both parties cling to a failing neoliberal policy and they only represent themselves. Working class voters have nobody to represent their class interest. As one pundit put it, "Labour and the Tories are like a pair of corpses, stiff with rigor mortis, propping each other up."

A Tsunami of Reaction?

Much has been made of the hysteria around the issue of immigration. Some on the left branded the Leave campaign as xenophobic and racist. Undoubtedly the issue of immigration was a prominent feature during the campaign on both sides, although I would question whether either was overtly racist (with the exception of some of the antics of UKIP's Nigel Farage, such as the use of racist imagery in a poster). It would be disingenuous to say that racist themes did not emerge, but it's also necessary to retain a sense of proportion.

The small left forces campaigning for leave with a clear anti-racist programme were largely ignored by the media. With the Labour Party officially backing Remain, this handed leadership of the Brexit campaign over to the radical, populist right with its nationalist message and appeal to nativism. Had Labour been for Brexit the campaign would have been entirely different. Small right wing forces would've been marginalised.

The Tory press has encouraged anti-immigrant sentiment for years and both sides in the campaign stated that immigration had to be controlled. In this context, it was inevitable that that there would be some anti-immigrant and racist outbursts after the result. This would have been the case whatever the outcome.

One aspect was the continuous dismissal of working class concerns over immigration. Workers were derided in the media as racist and xenophobic throughout the campaign. Enthusiastic news teams scoured working class areas for prime examples of atavistic Neanderthals spouting racist abuse. It was all carefully choreographed to induce disgust in middle class viewers schooled in intersectionality. The working class was depicted as ignorant, ill-informed, primitive nativists. But the media coverage rebounded on itself: hardening attitudes and the resolve to vote Brexit in solid working class areas.

In reality, the attitudes towards immigration was a catchall for concerns over austerity cuts, pressure on jobs, living standards, housing, the NHS and services. Kate Hoey of the Labour Leave campaign summed it up when she said that Leave voters used immigration as a symbolic register for a whole range of grievances using the EU as a kind of proxy for opposition to the establishment.

There was an increase in racist attacks after the result, but the vast majority consisted of verbal and online abuse. There were a few assaults reported to the police.

Certain elements on the left had warned of a tsunami of reaction following the Brexit vote. It failed to materialise. The rise in racism was met with revulsion by the majority of the population, including from Leave voters.

Dire warnings had been issued that a Brexit vote would mean a lurch to the right. We were told that Boris Johnson would become Prime Minister and Gove would be Chancellor with a far right programme. A new regime of ultra neo-liberalism would be inaugurated.

In fact, the opposite has occurred. Johnson announced that he would not be running for the leadership of the Tory party after his chum Gove told him he didn't have enough credibility. Gove is standing but has been rapidly outdistanced by Theresa May, Home Secretary and part the Remain camp, who is now the hot favourite for Prime Minister. The Eurosceptics were always a minority in the Tory party and the idea that they would win the position of Prime Minister and take control of the cabinet wasn't based on a serious analysis. To propose this was simply alarmist and akin to a conspiracy theory.

Warnings that the far right would be immeasurably strengthened by the result were also completely wide of the mark. Foreign commentators mistakenly refer to UKIP as the far right. This is a very dubious characterisation. UKIP is definitely a nationalist party but it certainly isn't close to anything like a far right one. It does rely on jingoism and anti-immigration rhetoric but most of its policy agenda is well within the mainstream. Not that much of this matters now. On 4 July Nigel Farage resigned as UKIP leader, saying he wanted his life back, and it's questionable how UKIP will fare now. After all, its entire raison d'etre was achieving British withdrawal from the EU.

On the economic front, the warnings of more brutal austerity proved to be false. On 1 July, Chancellor George Osborne announced that he had abandoned his target to restore government finances to a primary budget surplus by 2020. The country couldn't afford it after Brexit, he said. This volte-face by Osborne was in stark contrast to his threatened punishment budget. Labour Shadow Chancellor, and Corbyn supporter, John McDonnell said "Sadly the vote last Thursday for Brexit has only brought forward what was inevitable". So the tsunami of reaction includes a complete Tory retreat on their pro-austerity fiscal policy? It just doesn't fit with the catastrophist perspective of the pro-Remain left.

And as if to mimic Osborne's partial retreat from austerity, the youngest Tory contender for the leadership, Stephen Crabb, enthusiastically pledged to create a £100 billion "Growing Britain Fund" if he won: "The infrastructure investment fund could finance essential projects including flood defences, a national fibre-optic broadband network and Crossrail Two", he said.

So instead of hardening its commitment to austerity, the Brexit vote has thrown the British ruling class into confusion and disarray. Policy positions held for a decade are being abandoned.

A Very Bungled British Coup

Three days after the result, the right wing of the Parliamentary Labour Party (PLP), the official opposition, staged a coup against their leader Jeremy Corbyn. Corbyn is detested by the right as he has an anti-austerity position and he also voted against the Iraq war in 2003. Thanks to a change to Labour's leadership election rules Corbyn, a long time left winger, was nominated for the leadership in September 2015 and was elected with an unprecedented 60% of members' votes. Ever since his election the main preoccupation of the right wing Blairite majority of the PLP has been to undermine his position, isolate him and conspire against him.

News of a plot to remove him as leader was openly discussed in the press for weeks before the referendum. The Financial Times published a step-by-step guide of how the plotters should execute the coup. A vote of no confidence was required, the newspaper advised, which involved 70% of the PLP voting against him. Then they needed a candidate to challenge him. Somebody who "had the guts to do it."

The coup leaders struck with their no confidence vote and it passed with 172 votes to 40. The normal practice in British politics is for the defeated leader to stand down, but Corbyn emerged defiant. He refused to accept the vote: he was elected by party members not MPs. Corbyn addressed a mass rally of 10,000 outside parliament saying he would continue to be party leader. Demonstrations in support of Corbyn took place throughout the country. 100,000 new members have flooded into the party.

Brexit was only a pretext for the coup. Alex Salmond, former leader of the Scottish Nationalist Party which now dominates Scottish politics, has claimed that its timing was dictated by the impending publication this week of the Chilcot Inquiry into the disastrous Iraq war. Earlier reports have suggested Tony Blair and his contemporaries will be savaged in an "absolutely brutal" verdict. Corbyn is prepared to brand Blair a war criminal and anti-Corbyn members of the PLP are deeply implicated in the decision to go to war: the vast majority voted for it. It's possible, as Salmond suggests, that the coup was timed to remove Corbyn to stop him condemning the right wing of his own party.

The other purpose of the coup is to remove any voice from Parliament that challenges the Blairite consensus around a neoliberal economic programme which unites Labour and the Tories. For the capitalist class it is essential that a counter narrative to its free market dogma is expunged from Parliamentary politics.

The entire establishment and their propaganda machine is piling pressure on Corbyn to resign. Even David Cameron, having previously sneered that the Corbyn leadership is a gift to the Tories, has joined the call for Corbyn to go. Yet so far nobody has had the guts to enact the second part of the plan and actually launch a leadership challenge against Corbyn. This would trigger a leadership election which Corby would contest and probably win. So the coup had a fatal flaw: it never had a leader capable of beating him.

Corbyn stands firm as I write, with rallies up and down the country and all the major trade unions supporting him. Will it lead to a new political alignment on the left?

What Next?

Brexit was a profound shock to the capitalist class and the elites. It also caused an acute schism amongst elements of the left and a growing split between the parliamentary right wing of the Labour Party and its traditional base of support. It is the beginning of a new political trajectory for the British Isles and will have repercussions within the EU which, for the moment, are an object of speculation.

The Tories, the oldest party of capitalist class, will not emerge unscathed from the Brexit result. In essence, the referendum was called to quell dissent within Tory ranks from its growing Eurosceptic wing. UKIP was also biting at the heels of the Tory government, often gaining up to 20% of the vote and eroding the traditional Tory electoral base. Cameron had taken a gamble in conceding the referendum. It was a miscalculation of epic proportions.

Theresa May, the front runner in the Tory leadership contest, has promised she will heal divisions and bring Leavers and Remainers together. However, as a partisan for Remain (although inconspicuous during the campaign) she will have a difficult task. She has to oversee the negotiations to leave the EU and decide when to trigger Article 50 of the Lisbon Treaty which begins the two-year process for EU withdrawal. She has already stated she doesn't want to rush the process, whilst Brussels demands a speedy resolution.

There is already speculation that May will attempt to dilute the meaning of Brexit and undermine the decision of the referendum. This could prove a source of conflict within her own party as an emboldened Eurosceptic wing eyes her performance and she will need to bring Brexit leaders into her cabinet. Her government is also weak, holding a majority of only twelve.

The Labour Party, meanwhile, is on the verge of civil war. The right-wing Blairite majority have badly bungled their coup attempt and there is a position of stalemate. Attempts are being made to broker a peace deal by trade union leaders, but the situation cannot persist indefinitely and a split is possible.

The economic outlook for Britain and Europe was and is grim. The underlying crisis in capitalist profitability which has mired the world in a long term depression was about to take a nastier turn regardless of the Referendum's outcome: only a mass destruction of capital, at a great cost in lives and jobs, is capable of restoring the capitalists' profits. Uncertainties surrounding Brexit may well accelerate the slide into a new recession by puncturing the property bubbles on which Britain's fragile, anaemic recovery was built.

There is also the renewed prospect of Scottish independence because of its vote to Remain. And the vote will intensify tensions within the wider European project. Workers' parties across Europe celebrated Brexit as a victory over the repressive laws and austerity which the EU imposes. Now they are making their own calls for votes to leave.

Scotland voted Remain for unique national reasons, but also nearly 4 out of 10 voted Leave. And there is considerable scepticism in the YES movement about the EU project, even amongst those who voted Remain at the SNP's behest

In Britain, amidst the crisis of the Parliamentary Labour Party, we are experiencing a historical realignment of workers and young people in a new mass movement which is crystallising within the grassroots of the party. The traditional far left which remains outside of the Labour Party has been side-lined. It's very difficult to say what will happen next. But if Corbyn survives as leader of the Labour Party, it cannot be ruled out that a new general election will sweep out the Blairites and bring a radical reformist government into power: a Syriza moment in the world's fifth largest economy.

But like Syriza, Corbyn and his allies themselves have no solution to the crisis in capitalism they will face once in power. This is why it is imperative in England and Wales that revolutionary Marxists join the Labour Party, defend Corbyn, and put forward a genuinely revolutionary programme to the hundreds of thousands now entering this struggle (And the grassroots YES movement in Scotland? – Ed). Across Europe, the unfolding political, economic and social crisis will create similar opportunities for new and existing parties of the left as well as new dangers from the right.

Contrary to its stated aims, the EU has intensified nationalist tensions. As its future hangs in the balance, workers must unite in international solidarity to defend migrants and refugees against racism and defend the streets from fascists who are emboldened by the Brexit result.

As Jack London's Frenchman said, "The stairway of time is ever echoing with the wooden shoe going up, the polished boot descending." In Europe, the stairway is clattering with noise. Over the coming weeks and months, we shall see where it leads.

 

First published in http://marxistworld.net/

Tackling Private Landlords and Getting your Deposit back: a legal and campaigning guide

Sick of private landlords who muck you about? Kevin Kane recently took on a private landlord who refused to return a deposit through the courts - and won. Here he gives a detailed and step-by-step account on how to take on bad private landlords using existing Scottish law.

 

Tackling Private Landlords’ Non-Protection of Deposits: Discussion of the Legal Application of the Tenancy Deposit Schemes (Scotland) Regulations 2011 and a Tenants’ Guide to Pursuing Redress

 

Introduction

This article, about the Tenancy Deposit Schemes (Scotland) Regulations 2011, is inspired by my experiences pursuing my former landlord in Court, due to her non-protection of my partner’s tenancy deposit.  In Scotland, securing a tenant’s deposit in an approved scheme is a legal requirement as a result of these Regulations, and as far as I am aware, I am the only lay representative to successfully bring court action under the 2011 Regulations, with my former landlord sanctioned two times the amount of the original deposit, plus expenses. I have obtained a wealth of knowledge on the Regulations and the realities of pursuing legal redress in this area, and through this article I wish to share the insights I have gleaned in order to inspire other tenants in similar situations to take legal action; this is particularly important given, as I will discuss, that the current direction of legal judgements in this area appears to be going against the spirit of the Regulations and, if this trend continues, are at risk of rendering this progressive legislation obsolete.

It is intended that the following information will diminish the whip hand of the unscrupulous landlord, and in the best case outcome it will encourage law makers to have a look at how the Regulations might be strengthened going forward; but I would caution however, that this is not intended as a hate piece on landlords. There are many upstanding landlords who follow all of their obligations to the letter and sometimes there are unfortunate situations where landlords are the victims of rogue tenants.  However, the Private Rented Sector is in desperate need of regulation and reform, as many tenants find themselves the victims of rogue landlords.  The law ought to be a crucial mechanism in the quest to improve standards in the Private Rented Sector and change the culture of entitlement which landlords have enjoyed for far too long.  The 2011 Regulations, when enforced appropriately, are just one important component of this effort, enhancing tenants’ rights to redress and deterring landlords from shirking their responsibilities.  Standards in the Private Rented Sector will be further improved by the introduction of additional legislation, such as the Private Housing (Tenancies) (Scotland) Act 2016.

The first part of this article gives an overview of the Regulations, why they were introduced and why they matter; thereafter it provides an analysis of the evolving body of caselaw which exists to date, along with a discussion on what can be done to ensure the Regulations are workable and achieve what they were originally designed to do.  Parts 2 and 3 of this article recount my experiences as a lay representative pursuing my former landlord in respect of her non-compliance with the Regulations; I reflect on my experiences and eventual success in what was an arduous two year process, and I also provide step-by-step practical guidance to others in a similar position who may wish to pursue court action.  My intention is to make tenants aware of their rights and empower them to take action where appropriate, but a friendly word of caution – this is a process which is not for the faint hearted!

Introduction to the Tenancy Deposit (Scotland) Regulations 2011

The 2011 Regulations were introduced due to concerns that rogue private landlords would unfairly withhold tenants’ deposits at the end of their tenancy.  This led to the Housing (Scotland) Act 2006 making provisions for Scottish Ministers to introduce regulations for the approval of tenancy deposit schemes in Scotland.  The Tenancy Deposit Scheme (Scotland) Regulations 2011 came into force on 7 March 2011.

The legal duties on private landlords in Scotland who receive a tenancy deposit are as follows:

  1. Under Regulation 3: to pay deposits into an approved Tenancy Deposit Scheme within 30 days of the beginning of the tenancy
  2. Under regulation 42: the landlord must provide the tenant with key information; including their landlord registration number, the amount of the deposit and the date the landlord received the deposit from the tenant, confirmation of the date the deposit was paid into an approved scheme, the name and contact details for the scheme holding the deposit, the address the deposit relates to and the reasons why part or all of the deposit may be withheld at the end of the tenancy, with reference to the tenancy agreement.

There are a few exceptions to this – resident landlords, for example, do not need to register deposits.  In instances where the landlord uses a Letting Agency to handle the tenancy, it is still the landlord’s responsibility to ensure the deposit is secured.  There are currently three approved schemes which landlords can use.  These are SafeDeposits Scotland, My Deposits Scotland and Letting Protection Scotland.  These schemes protect a tenant’s deposit for the duration of the tenancy.  There is no cost to either the landlord or tenant to register with these schemes.

At the end of a tenancy, the landlord applies to the scheme for repayment of the deposit to the tenant.  The landlord can detail any deductions to the amount of the deposit they believe they are entitled to.  If the tenant agrees with this, then they will receive the agreed amount back from the scheme.  If there is a dispute between the landlord and the tenant over the amount that ought to be returned, then the tenant can apply to use the dispute resolution process provided by the scheme.  The dispute process involves an independent adjudicator, who will review any evidence submitted and come to a decision.  There can be one appeal of this decision, but after this, the decision is final and binding on both parties.  The Dispute Resolution Service means that a tenant no longer has to pursue court action in instances where all or part of their deposit has been unfairly withheld at the end of their tenancy.  However, the dispute resolution service also ensures that a landlord can keep all or part of the deposit when a tenant has breached their obligations as stipulated in their tenancy agreement.

Failure to Comply with the Regulations

In instances where a tenant has paid a deposit but the landlord does not register it in an approved scheme within 30 working days and provide the tenant with the necessary information detailed above, then the tenant can apply to the Sheriff Court (via a summary application) and if the sheriff is satisfied that the landlord has failed to comply, then under Regulation 10 of the Tenancy Deposit Scheme (Scotland) Regulations 2011, they must order the landlord to pay the tenant up to three times the amount of the deposit.  A tenant has three months from the end of the tenancy within which to pursue court action.  In tenancies which are ongoing, the court can order the landlord to pay the deposit into an approved scheme.

As will be illustrated in the case analysis below, the Sheriff will have discretion to take the individual circumstances of each application into account when deciding the amount of financial sanction to apply.

Analysis of Caselaw

As the Regulations are still in their infancy, there is only a small (but expanding) body of caselaw to draw upon at present.  However, as I have followed the law in this area closely, I have grown extremely concerned at the direction recent judgements in this area appear to be taking and what seems to me to be a misapplication of the Regulations and what they were intended to achieve.  If this direction continues, it appears inevitable that the Regulations will be rendered obsolete.

The original test case of Fraser v Meehan decreed that as the landlord had failed to comply with his duty underRegulation 3, the only issue for the court was the amount which the landlord should be sanctioned. The case made clear that the amount sanctioned under Regulation 10 was not compensatory as it did not refer to any loss suffered by the tenant and was therefore a sanction for the landlord’s non-compliance.   It was held that the Regulations had been introduced to address the perceived mischief of landlords failing to return deposits and the regulations would be meaningless if they were not enforced.

As nothing by way of mitigation was offered the landlord was sanctioned three times the tenant’s deposit of £1,150, amounting to £3450, a decision which reverberated throughout the landlord world in Scotland.  It is not uncommon for new laws to be applied rigidly at their inception and with no prior caselaw to draw upon it can be seen in Fraser v Meehan that the Sheriff has assessed the intention of the Regulations and sanctioned the landlord accordingly.

In the appeal case of Tenzin v Russell the decision to apply the maximum sanction was upheld and it was stated that the court had little justification for interfering with the amount of the sanction where the Sheriff had “complete and unfettered discretion” within the parameters laid down by the Scottish Parliament. It was held that an admitted failure to comply with Regulation 3 immediately engaged the mandatory requirement that the Sheriff order the landlord to make a payment in terms of Regulation 10.

At [p.19] The Sheriff in the original Tenzin v Russell case detailed that the Regulations do not distinguish between the malicious or the naïve.

In dealing with non-compliance no distinction has been drawn by the legislators between the careless or devious; the experienced or inexperienced, the culpable or inadvertent. Likewise the strict liability consequences of non-compliance allow the court to promote rigorous application of the regulations as a means of deterrence”.

Accordingly, the defence submission that the landlord had made a “hash of the let” was dismissed by the court.

If we contrast these two cases with more recent cases, it is evident that there is a trend away from the maximum sanction and in some cases, less than the amount of the tenant’s original deposit has been deemed an appropriate financial penalty. This will of course please the more unscrupulous landlord, as the chances are the tenant will not bother to exercise their rights via the Regulations.

It is also notable that in some cases the language of “award” or “compensation” is being used in relation toRegulation 10. Whilst this may just be loose language, there is a difference between a sanction on the landlord and an award for the tenant. The Regulations make clear, as do the early test cases, that the sanction is a monetary penalty as a means of landlord deterrence.

The courts using terms like “award” changes the prism through which the Regulations are viewed and therefore have the potential to alter what the Regulations set out to achieve. This is perhaps a subtle indicator as to why the courts are now interpreting the law in a more lenient manner and one by which is increasingly favouring the landlord.

In the test case Fraser v Meehan, the Sheriff made clear that the purpose of the sanction is to express “condemnation or indignation”, acknowledging that the purpose of the Regulations is to protect tenants and ease the burden on the courts through the provision of the dispute resolution service.  The Sheriff acknowledged that such a scheme is worthless if landlords do not comply and so sanctions must be rigorously applied, particularly while the Regulations are still in their infancy.

Therefore, with it being a sanction, and not an award or compensation, it functions as a penalty and was intended to incentivise landlords to comply with the Regulations and deter them from ignoring the Regulations. This means the onus ought to be on the landlord to show why the maximum penalty should not be imposed, rather than it being on the tenant to show why the maximum penalty should be imposed.

In the 2015 judgment of Jenson v Fappiano, the Court stated that “trivial non-compliance” with the Regulations could not result in the maximum penalty of times three the deposit. This is a far cry from Tenzin v Russell where the Sheriff opines the legislators make no distinction between the careless or devious or the experienced or inexperienced and that stringent sanctions must be applied to encourage compliance with the law.

The landlord in Jenson v Fappiano was sanctioned one-third of the tenant’s £1,000 deposit. Unfettered judicial discretion (outlined in Fraser v Meehan) was applied having heard evidence on a dispute over rent arrears and an unsuccessful eviction attempt by the landlord. The language of “award” was used in this case and mention was made of it being the landlord’s first letting experience.

So, despite the strict liability nature of the Regulations, it can be seen that broad value assessments are being applied prior to any sanction being laid down. Perhaps, this case is somewhere in the middle, as there are clear mitigating factors, which the Regulations do permit.

Therefore, to properly evidence the pendulum swing towards mitigation being applied in favour of landlords – it would be useful to look at the case of Kirk v Singh. In this case it was noted that there are differing approaches in respect of calculating the appropriate sanction, but the preferred approach adopted by the Sheriff was the one utilised in Jenson v Fappiano at paragraphs [11], [12] and [18] as more consistent with the policy underpinning the legislation, in that, the sanction should be one that is “fair, proportionate and just”, having regard to the seriousness of non-compliance.

Accordingly, it was deemed that a sanction of £500 was the fair, proportionate and just sanction having regard to the maximum available. The tenants deposit was £380, therefore the maximum sanction available to the Sheriff was £1140.

In this case, the tenancy started on 31 January 2013 for an initial six months. The deposit was not paid in to the approved scheme by the landlord until August 2014, so even though the deposit was unprotected for well over a year, including the whole period of the initial let, this was deemed a mitigating factor.

The Sheriff highlighted there was nothing to suggest this was a willful default by the landlord, which of course goes against the verdict in Tenzin v Russell, or that he had systematically been in default in respect of a number of tenancies. However, it was perhaps relevant given the landlord acted through his agent, and although ignorance is no excuse, it is a factor which the sheriff considered when exercising his discretion. It is also notable that the deposit was returned to the tenant at the end of the tenancy.  By contrast, in Fraser v Meehan, return of the tenant’s deposit was not considered to affect the landlord’s liability in respect of the sanction.

However, the ambiguous and/or changeable nature of what mitigation is permitted in these cases could be argued is resulting in a situation where mitigation can be whatever the Sheriff decides is mitigation. This is coupled with the interpretation of what is a Sheriff’s “unfettered discretion” (Fraser v Meehan) and is resulting in the courts choosing to go in at the lower end of the sanction scale.

Whilst context is always important, the courts need to be careful not to go too far the other way from the stipulation that they “must order the landlord to pay the tenant up to three times the amount of the deposit” and thereby defy the spirit of the Regulations.

After all, these Regulations were designed primarily to jolt the landlord community as a whole into complying with their landlord duties, namely that tenant deposits are paid into an approved tenancy deposit scheme within 30 days of the beginning of the tenancy.

However, it was held that £416 was to be paid to the tenant and £84.00 to be retained by the landlord from the tenant’s £500 deposit. Therefore, despite the Sheriff agreeing that it would contrary to public policy to have entertained his assertions of the tenant’s alleged breach of the tenancy agreement; it would appear however that it has affected the amount of the sanction imposed. This case has been resolved in a manner similar to a Small Claims Procedure, without due consideration to the fact that the 2011 Regulations include a free dispute resolution mechanism, without the need for the Court to hear evidence on peripheral matters.

The Court could argue that the Regulations do not preclude a discussion being held in court on the merits of the landlord retaining a tenant’s deposit. However, that logic hinges upon a negative premise, whereas had the tenant’s deposit in Omale v Barcenas been protected, then free third party arbitration (a chance for both parties to make their case) would have followed with no need to resort to expensive legal action.

Therefore, the almost negligible sanction for the landlord’s non-compliance and consideration of auxiliary factors means that Omale v Barcenas stands out as a case that goes directly against why the Regulations were intended and sets a dangerous precedent where future sheriffs can consider just about any matter in relation to the deposit and all under the auspices of what is fair, proportionate and just.

The tenant’s right to free third party arbitration is positively prescribed for in the Regulations. It follows therefore that the tenant has been prejudiced against due to the failing of the landlord to have the deposit protected, as the tenant has been denied the opportunity of this free service.

If the Court makes allowances for the landlord in respect of the merits or otherwise of retaining the deposit under the guise of mitigation then it spectacularly misses the point.

If the trend towards lenient sanctions continues or there is not a case that stamps authority back on the strict liability intention of the Regulations, a tenant taking their landlord to court will simply become too costly and an inconvenient headache, with landlords once again secure in the knowledge that they have the whip hand when a tenancy comes to an end.

It is also noteworthy that in both Kirk v Singh and Omale v Barcenas that the use of an agent was considered by the Court to be a mitigating factor in favour of landlord, but the onus is always on a landlord to secure the tenants deposit – whether an agent is involved or not. The question of an agent’s involvement by a landlord is therefore moot, as the net effect is one where a tenant is prejudiced against by the direct action (or inaction) of their landlord.

However, I have a little concern that future landlords might be able to play around with this when formulating their lease, so as to avoid having to put the tenant’s deposit (or deposit equivalent) in a scheme, or that it will encourage them to lean on the tenant to accept a “first month, last month” upfront money proposal they might not otherwise be inclined to accept. A securely held deposit gives the tenant leverage and landlords are aware of this. However, a properly protected deposit should be appealing to the good landlord as well, as it is security in the event of a tenant’s non-compliance with the lease and a decision based on evidence submitted at the third party arbitration hearing will settle any disagreement.

Discussion: Sanction the Landlord; not Prejudice the Tenant

If the Regulations are enforced in the way they were originally intended, they will help to protect tenants from exploitation by rogue landlords.  People can lose hundreds of pounds to rogue landlords who unlawfully retain their deposit.

The 2011 Regulations ensure all landlords must take their responsibilities seriously or face the consequences, while the requirement to provide tenants with details of landlord registration also helps to tackle the problem of illegal landlords (landlord registration is another legal requirement and failure to do so is a criminal, not civil, offence).  If the landlord is genuinely entitled to keep all or part of the deposit then they will be able to do so within the confines of the free third party arbitration service of the tenancy deposit scheme. Therefore, good landlords have nothing to fear from securing their tenants’ deposits. It will, however, give tenants vital protection from those who will seek to withhold deposits unfairly.

A 2016 Citizen Advice Scotland report details that the organisation receives thousands of calls every year about rogue landlords, amounting to more than 6,000 complaints last year, with evidence of multiple cases of landlords failing to meet their legal responsibilities, refusing to do basic repairs and bullying or intimidating their tenants.  It said it represents an increase of 23 per cent of such complaints over the previous two years, and amounts to 24 cases every working day. CAS is urging tenants to stand up for their rights and challenge “unacceptable landlord behaviour“.

Enforcement of the Tenancy Deposit (Scotland) Regulations 2011 is an important part of that challenge, but if the courts continue to weaken the Regulations in their judgements, then this crucial avenue for redress for tenants will become entirely unworkable. The Regulations need to be enforced strictly in order to force landlords to comply.

Did the Regulations intend for erroneous disputes to be heard in court when the strict liability law came to pass? The premise of rigorous sanction is about creating an atmosphere where landlords are compelled to adhere to all of their duties. Otherwise, where is the incentive for landlords to comply with the Regulations if they can simply turn up to court and say they forgot to protect the tenants’ deposit or that they are a naïve residential first timer or that they simply had a “bad” tenant”? This is why Courts must rigorously apply sanctions in the event of non-compliance with the Regulations.

It is the legal and cultural norm to tax and/or insure your car with penalties following as consequence of non-compliance with these legal obligations. Sanctions must follow non-compliance of the tenancy deposit regulations, so that securing deposits in an approved scheme becomes the cultural norm as well, which in turn will help to drive up standards in the private rented sector.

Some unscrupulous landlords already appear to lack concern about the Regulations, as the following quote taken from a popular landlord forum online exemplifies:

To be honest, in my experience, tenant’s [sic] don’t know their arse from their elbow when it comes to their [sic] rights…why would anyone sue a landlord if they hadn’t done this, if they were still living in the property? It’s hardly going to get the landlord running round every time a little thing goes wrong…[I] could just keep hold of the deposit – I’m pretty sure they would never find out what should happen” (referring to the sanction).

A study released in late 2014 found that over half of deposits in Scotland had still not been secured in an approved scheme.  I could not find more up to date figures to assess if this situation has improved.  However, it makes sense that landlords will pay heed when workable legislation contains the genuine possibility of a sanction hitting their pockets, otherwise the Regulations will be consigned as a nice idea made unworkable by the wide and generous application of the sheriffs’ discretion in the courts.  Alarm bells need to sound on this before the Regulations become utterly meaningless. There needs to be a proper and effective – perhaps even trigger – process in place as a consequence of the landlord admitting liability in tenancy deposit cases. At that point everything else is moot and the question becomes one of “what to sanction the landlord?” which we have seen in the early test cases.

The atmosphere of fear might seem unreasonable, but it is absolutely necessary to redress the power imbalance, because for too long tenants have faced the ignominy of timidly requesting the return of what is rightfully theirs, and landlords have been able to ride roughshod over tenants’ rights, as they remain in the position of financial dominance when a tenancy comes to end.

This should be part of wider ongoing progress, combining with advancements contained within the Private Housing (Tenancies) (Scotland) Act 2016, which ensures rents can only be increased once a year, introduces Local Authority rent controls in “pressure areas”, the removing of “no fault” grounds for re-possession, and the introduction of a new system of redress for landlords and tenants via the new Housing Tribunal system.  This Tribunal is being set up to avoid cases having to go to court and it is intended there will be no fees for either party if they intend to use this service.

These developments must not be undermined by the weakening of the Tenancy Deposit Regulations, which were to a great extent designed as a protective measure for tenants.  The struggle for tenants’ rights must continue as one movement with no weak links in progress, so as to get to a place where the tenant can assess with some predictability what rights and redress are available when their landlord has breached their responsibilities.

So, going forward, there must be renewed consideration of how these Regulations are being interpreted by the Courts and how the law can be amended, or the process by which redress is sought, streamlined to facilitate tenant usage of legislation in the future.

With this in mind, there needs to be a new trend in all actions of this type which stop focusing on the behaviour of the tenants (breaches of lease which would be covered by the third party arbitration service available in the approved schemes) and instead to focus on the conduct of the landlord – failing or refusing to secure the deposit in a scheme.  The onus should be on the landlord to prove why the maximum penalty should not be applied. Until landlords, whether professional or amateur, start to behave professionally and develop a customer service mentality, there will always be rogues.  It is this strict liability approach to non-compliance and the guaranteed implementation of a severe sanction which is needed in order to ensure the Regulations have the effect they were intended and change the culture of the private rented sector, driving up standards, and reducing exploitation of tenants.

Perhaps, the Private Rented Housing Panel (PRHR) in Scotland (consisting of lawyers, chartered surveyors and housing members) who make up Private Rented Housing Committees, should extend their remit to include in-depth advice or indeed, or their role expanded to take up cases on behalf of tenants, or mediate between the parties.

The PRHR already deals with duties under several jurisdictions relating to the private rented housing market in Scotland, including rent assessment and the “repairing standard” to which all landlords must comply. The infrastructure is already in place and the Regulations would certainly have more teeth if the panel allotted resources to dealing specifically with this issue.

Another issue, which I will tackle in Parts 2 and 3 of this article, is the expense involved in pursuing legal redress for a landlord’s non-compliance with the Regulations.  Furthermore, pursuing legal action is an incredibly long and complex process.  This ultimately discourages many an exploited tenant from pursuing the legal redress they are entitled to.  The following quote from a popular landlord/tenant forum sums up the frustration involved in attempting to exercise rights as a tenant in relation to the Regulations:

“Well found out that I need to submit a summary application to the court and they advise legal help doing that, but the legal help is a fortune. Even if I submit the summary application the whole process could go on for months with the other side paying for a solicitor etc…if I lost I could end up with all kinds of legal expenses! Far more than what I could be awarded of 3 x the amount of my deposit! Is it worth the risk? What’s the point in telling the tenant he/she can claim 3 x the amount of the deposit if Landlord doesn’t protect deposit, [when] the whole process is a massive, expensive complex and potentially you could end up worse off”.

It is possible to pursue such legal action as a lay representative i.e. without the service of a solicitor.  This process will still involve some legal expenses for lodging documents and so on, but these will be repaid to you in the (likely) event that you are awarded expenses in the final judgement (this means the other side will have to pay your legal fees as well as their own).  There appears to be some confusion about this among tenants, with some online reporting that Sheriff Courts have told them they can only pursue legal action if they have the services of a solicitor.  On one of the landlord/tenant forums I used while researching this article, one tenant writes:

“I have been in touch with local court who said I need a lawyer to submit claim, so I spoke to different lawyers who charge more than I could potentially be awarded from the court! So what’s the point in a tenant being told if landlord didn’t protect your deposit within 1 month you can claim up to 3 times your deposit but they fail to tell you that you can not [sic] submit your claim yourself and you have to use a lawyer and the costs of taking action will potentially be more than you will get awarded from the court after you have paid Solicitor fees and court costs”.

The information this tenant received was incorrect.  This type of action is known as a ‘Summary Application’ and it can be undertaken as a lay representative.  In Parts 2 and 3 of this article, I will recount my experience as a lay representative taking my landlord to court and I will also provide guidance, including a draft of the initial writ used in my case, in order to help empower other tenants to pursue legal redress as lay representatives.  It is important for tenants to feel empowered to take action, as once again, landlords will only feel compelled to secure tenancy deposits in an approved scheme if they know there is a significant risk they might be taken to court by a tenant if they fail to do so.  This, along with Sheriffs’ applying the strict liability sanction in their judgements, is crucial in order for the Regulations to remain enforceable and have the impact they were intended.

Part 2: Lay representative success in tenancy deposit scheme case and guidance to tenants on the legal process

Lay Representation: A frustrating process

My own case was completed as a lay representative, from the drafting of the initial Writ (an actual copy of which will follow in Part 3), through to case completion, and as far as I am aware, thus far I am the only lay representative to have successfully done so under the 2011 Regulations.

The undertaking amassed nearly two full years and four separate court hearings, on what one might credibly argue is a fairly simple piece of legislation. Yet, at times, I wondered if I was the only person in the world, bar a select few who provided meaningful reassurance, who understood how the Regulations were intended to operate. This is presumably not how the Regulations were intended to make the applicant feel.

Result in My Case

The landlord was sanctioned twice the deposit (plus expenses awarded to the tenant), so including enforcement, this amounted to over £1400. The interest was not added at the court rate, as requested in our Crave, and communicated clearly with the auditor prior to the expenses hearing. However, after the culmination of a two year struggle, we decided to bring the case to a close without the additional psychological torment of further correspondence.

Taking the case to court was not predominantly about the money, it was about tackling our landlord on a matter of principle and we hope to inspire other tenants in a similarly marginalised position to do the same.

However, a note of caution for anyone considering doing the same and that is that the wheels of justice move painstakingly slowly. Our case was fraught with obstacles and exacerbated by our lay representative status. Therefore, as a tenant you should aim to reach some sort of amicable arrangement with your landlord if you can.

I refer to my being a “lay”, which is true. However, when I first raised the case, I was in the final phase of my LL. B “Bachelor of Laws” at Glasgow Caledonian University (GCU) and so benefited from some legal knowledge.

Our landlord was not a registered landlord and did not secure our deposit in a scheme.  At the end of the tenancy, when seeking the return of the deposit after we had cleaned the property and left it in the condition it was in when we had entered in, the landlord refused to return any of the deposit.

The catalyst for our action was the refusal of the landlord to return our deposit with any initial attempts at negotiation on our part being met with silence or hostility.   We outlined specifically to the landlord the course of events which might reasonably follow non-return of our deposit, including the possibility they would be sanctioned for their non-compliance of the Regulations by the Court. However, we were greeted with numerous flippant responses, including a text which unambiguously read: “See you in court”.

So, the starting gun was fired, although we did not know, or at least fully appreciate it at the time, this was going to be one long drawn out process, including four hearings (one other scheduled hearing was postponed), an appeal to the Sheriff Principal (subsequently dropped when the original Sheriff rectified his original position in his report), two incorrectly issued Extract Decrees and some considerable time negotiating and navigating the enforcement stage when trying to execute the final judgement.

The landlord, hereinafter referred to as “The Defender” was well aware of our perilous financial situation and she also knew my partner’s Mother had recently passed away from cancer, which contributed immensely in our deliberations as to whether to vacate the property. The landlord knew in no uncertain terms that we needed the deposit returned.

It is in circumstances like these that the Tenancy Deposit Regulations were created, so with the threat of legal action and possible sanction, the landlord will be less inclined to try and take advantage of the tenant, who might otherwise be tempted to take less than they are entitled to, such is the unequal power balance between the landlord and the tenant in these types of situations.

The Regulations level the playing field for both the tenant and the landlord, as a securely protected deposit benefits both parties.

Why?

Because, the landlord and tenant gain access to a free third party dispute resolution service, where evidence on areas of disagreement can be submitted, freeing up valuable court time and in theory, disputes are resolved fairly and quickly.

It was this free third party arbitration service to which my partner, hereinafter referred to as “The Pursuer” was denied and why we resolutely resisted any participation in discussions on issues on the periphery of our case.

Certainly, in this case, the landlord was short sighted, especially so, when we consider they were not registered as landlords with the Local Authority, which as a criminal, not civil, offence is punishable by a fine of up to £50,000 and a possible ban on renting properties. Interestingly, this never seemed to feature during the court mitigation process, but I highlight it nonetheless.

This was not a small claims matter in the old fashioned tenant/landlord sense. It was a Summary Application brought via Strict Liability Regulations. Thus, the Court also agreeing to hear a counter-claim on a strict liability regulation of non-protection of a deposit was incompetent.  Also, the Defender in attempting to counter-claim for money they had already retained was as illogical on their part as it was incompetent for the Sheriff to consider to the counter-claim.  A claim would have needed to be brought separately and run concurrently to the tenancy deposit claim. This was rectified much later in the proceedings.

It was this irrelevance in relation to the Regulations which made it unthinkable for us to entertain peripheral matters, as to do so would have been to make a mockery of well-intentioned legislation, which was designed against these types of scenarios unravelling in the courts.

The tenant’s right to free third party arbitration is positively prescribed for in the Regulations. It follows therefore that the Pursuer has been prejudiced against due to the failing of the landlord to have the deposit protected as she was denied the opportunity of this free service.

Our raison d’etre for court action was directly attributable to the landlord’s non-protection of the Pursuer’s deposit. Therefore, it is not a big leap in thinking to suggest that by adhering to a “dirty laundry hearing”, as the Sheriff referred to it at the second hearing while bizarrely encouraging us to ‘settle’ out of court, would be to render attempts at progressive law making obsolete.

The Journey

When I considered surrendering defeat to what was an exceptionally protracted affair and with my partner’s morale at an all-time low, the doggedness we relied upon was built on the notion that if we could see the case through to completion, we would be in an advantageous and knowledgeable position to assist future tenants, who may also be suffering at the hands of an oppressive landlord.

But, rather than bog readers down on the drudgery of the intimate details, what follows is a summary of our journey. Hopefully, by supplying a narrative of our experience and giving information on the all-important form-filling (available in Part 3), this will enable tenants to pick up the baton of lay representation in the courts, and at the very least, it will provide a few pointers to aid future negotiations with landlords.

There were approximately thirty pieces of communication from us and the Defenders, excluding the process of the hearing on expenses (not well explained) which is a considerable amount, even allowing for the inevitable mistakes made by me as a lay representative.

When I represented at the first hearing, I was unaware I could request a “debate” on what was relevant to be discussed in relation to the Regulations. This procedural possibility only became apparent as part of my later studies, when I was studying for my Diploma in Legal Practice at the University of Strathclyde.

There remains the question of whether the Sheriff would have granted a debate from a lay representative. However, I would ask for one if I found myself in the same situation again and I would urge others to do the same, particularly if the initial calling to court looks as if it is going off-course.   If a debate was scheduled there and then or assigned for a future date, this would have provided ample opportunity to pre-emptively tackle the problems we encountered later on.

The following timeline is not exhaustive, rather, it is designed to provide a basic understanding of the main aspects of the case and with that I will provide some descriptive musings from the vantage point of the lay tenant representative.

May – 2013

Pursuer enters into a monthly “rolling” lease with defender. No inventory supplied. Deposit of £450 paid to the Defender. There are serious issues with the competency of the lease. However, these issues have been left out so as to concentrate on substantive elements relating to deposit protection.  Six months followed residing in the property at a rate of £450 per month, which amounted to £3150 paid by the Pursuer to the Defender.

December – 2013

Following unsuccessful attempts at negotiation for the return of the deposit and 25 days having elapsed from the end of the tenancy, a letter is sent from the Pursuer to the Defender asking for the deposit to be returned within seven days or legal action will follow.  Initial Writ submitted to the Sheriff Court the following month and a date is set for the first hearing.

Note: A tenant has 3 months from the end of a tenancy to submit the completed Writ to the court on this type of action.

January – 2014

Initial hearing which Sheriff postpones due to Defender turning up ill-prepared with no form of defence.

March – 2014

New hearing: Defender admits liability. Sheriff schedules a “proof” scheduled on peripheral matters for later date. Sheriff uninterested in hearing argument from the Pursuer on why conflating two issues was incompetent. Sheriff asked by Pursuer if he could provide caselaw to make his point to which he was flatly denied. Thus, the Defender’s counter-claim was accepted by the Court.

Letter received by the Pursuer some weeks later detailing that the hearing date had been postponed by the Court.

May – 2014

A hearing with the new (second) Sheriff who allows the Pursuer time (28 days) to amend Crave and intimate on the Defender. Diet of proof is adjourned until 17 September.

19 June – 2014

Writ amended and intimated on the Defender.

June 30 – 2014

Letter received by the Pursuer from the Defender confirming the amended Writ has been received.

31 July – 2014

Letter sent to Defender on Pursuer’s behalf from a law firm seeking to negotiate to avoid further court action and thereby reduce the impending vast expenses looming large over the Defender.

Pursuer makes offer of £700, totaling the deposit, plus an approximation of our expenses incurred up to that point.

A phone call was received some days later by the law firm from the Defender’s partner, who made a counter-offer of £200. It is said he spent much of the time referring to cat litter in the wheelie bin and other auxiliary matters.

Even if the Pursuer accepts for argument’s sake the landlord’s assessment, or better still, if the reasonable minded and impartial observer believed the Defender’s submission on whether our character and worthiness was such that we were undeserving of the deposit being returned, the unfortunate aspect of the case having being mishandled, is that the Defender was emboldened to believe she was in the dominant position.

This was on the basis that she was of the opinion they had every right to withhold the deposit, which as we have seen, is a separate issue entirely and one which was designed to sidetrack from the tenancy deposit matter in hand.

Had the Defender been made aware by the Court of the gravity she found herself in then I am confident they would have accepted what was a more than reasonable offer in the circumstances.

However, barring the second Sheriff’s assessment, the theme of the case was one which seemed to focus around subjective prejudices of the Pursuer’s motives in bringing the case and whether or not it was just in the circumstances to retain the deposit.

This offer followed a previous offer at the second hearing where we offered to “walk away” if the Defender returned the deposit, an offer which was refused. The offer of £700 also followed a previous refusal of a £600 offer. The Defender later refused another offer of £1000 (sanction minus our expenses) to avoid the formal enforcement process and added expense falling to her.

At every step along the way we could not have been any clearer that continuing down the road they were on would cost them significantly more in the long run. We certainly cannot be accused of being opportunists, as was stated by the Defender. The Defender’s stubborn refusal to take responsibility was maintained throughout.

The arrogance of the landlord is a case in point as to why the Regulations are so important and why they must be enforced rigorously and with maximum sanctions – unless there are any genuine and serious mitigating circumstances to determine otherwise.

The self-entitlement of the landlord was certainly a feature in our case, which is why it is imperative that these Regulations work, otherwise the cycle of landlord abuses will continue as before.

17 September – 2014

The Extract Decree, which followed the proof hearing attended by our lay representative, Mr Donnie Fraser and presided over by the Sheriff from the original hearing on 17 September, 2014, explicitly stated the Defender was owed sums of money.

This curious document was entirely illogical – but, how so?

Because it was accepted by all parties that the Pursuer had not been returned a penny of her deposit, which means any sums “awarded” to the Defender would then need to be absorbed into the non-returned deposit.

The Extract Decree intimated that the Pursuer was to pay the Defender for matters (not contested at the proof) over and above the Pursuer’s £450 deposit already retained by the Defender.

As an example, let’s say the Court awarded £400 to the Defender, this would mean that the £450 (deposit retained) subtracted by £400 amounts to £50.00 owed to the Pursuer, not an extra £400 awarded to the Defender, as it was stipulated in the Extract Decree. Note: Solicitor clarification was sought on this point at the time.

I hope that was easy enough to follow, but just in case, the short of it is that the sums of money between the deposit protection issue and the areas of disagreement on the merits of deposit retention were confused.

And, for those that are still reading, and perhaps considering the possibility that I am havering, the judgement in question was later adjusted to reflect the separateness of these matters. The judgement was refashioned entirely as to who owed what and the figures revised accordingly to exhibit agreement with what I am stating now and with what I was desperately trying to convey at the time.

However, imagine you are a lay representative in my shoes, the judgement is complete, you know you are in receipt of an incorrect Extract Decree, which is potentially a document the Defender could now enforce against you as the Pursuer – what do you do?

Well, you can contact the Court, as I did. I emailed the Court, explaining why it was incorrect and requesting that the Extract Decree is amended. The Court responded to say that in no uncertain terms would they be communicating with me any further on the matter.

Note: I am more than happy to reproduce any correspondence as a means to show my reasonableness at all times during all my communications with the Court.

The facilitative approach, which I am led to believe is incumbent on the Court and the Sheriff Clerk, had been at times less than helpful, but this response was particularly obstructive and extremely disappointing, especially after such a toilsome experience in getting to this stage.

Unfortunately, we could chart this happening in advance, but our attempts at communicating fell on deaf ears and we were powerless to get off the conveyor belt we found ourselves on.

Therefore, we had no choice but to send our Form of Note of Appeal to the Sheriff Principal – Decree dated 25 September – 2014 and request a “report” on the original judgement by the Sheriff.

Note: If you wish to appeal to the Sheriff Principal it must be on a point of law.

A hearing date was then fixed with the Sheriff Principal. However, in the intervening period having received a new report from the original Sheriff, we reasoned the appeal would no longer be required.

Also, the possibility of the added stress of going through another court appearance and possibly one which attempted, again, to portray us as having committed some wrong-doing also weighed heavily in my partner’s thought processes and was contributory to us dropping the appeal.

It would have been interesting to hear what the Sheriff Principal had to say on the matter, but all things considered, it was the correct decision to drop the appeal. Particularly, as the Sheriff’s report now better reflected what the Summary Application set out to achieve, which was genuinely heartening, a report which we would otherwise have been unable to get without taking our appeal to the Sheriff Principal.

Unfortunately, another mistaken Extract Decree was issued. I phoned the Court to have the document remedied. The Clerk alluded, without prompting, to the Sheriff’s original misjudgement, so I presume this was common knowledge behind the scenes at the Court.

I was assured the document would be rectified in the coming days. This was not the case, so some days later I emailed the Court to check on the situation. The response I received from the Clerk was that, despite our telephone conversation to the contrary, she could not see the issue with the Extract Decree.

I would like to point out in order to be fair at this stage that there were genuine attempts to engage with me by the Sheriff Clerk. The two-way communication between the Court and I improved markedly since my appeal to the Sheriff Principal, which may or may not have been a coincidence.

I was now able to email the Court and quote the Sheriff directly from his report on his judgement, which of course, was as a consequence of the non-refundable £107 appeal to the Sheriff Principal.

The report was outlined in a far more legible manner, so much so, the Sheriff Clerk was then able to determine what was required to be adjusted and re-issued the Extract Decree accordingly, which detailed the separateness of the matters.

It is noteworthy that the Sheriff Clerk of some ten years standing (as she informed me on the telephone) could not see the original anomaly. It was therefore not reasonable for me to expect a Sheriff Officer to understand my explanation of the initial Extract Decree, and certainly, a lay representative has all but no chance of deciphering and explaining the judgement to enable it to be enforced correctly.

I was in the fortunate position of being immersed in the case and the law around the obligations of landlords, and as already mentioned, I had the benefit of a modicum of legal training.

Enforcement

Upon receiving the newly corrected Extract Decree, we breathed a sigh of relief and proceeded quickly to enforcement. This also took some considerable time, including an expenses hearing, which is not unusual.

This was against the backdrop of obstinate belligerence on the part of the Defender, including the Pursuer being provided with incorrect address details by the Defender, delaying the process and creating needless additional expense.

The Defender, who was by her agent’s admission a wealthy person, finally had an earnings arrestment attached to her employer, culminating in a totally avoidable, cumbersome, and undignified end on the part of the landlord.

Our landlord was typically what you would call a rogue and unfortunately it is landlords like these who do a sterling job of giving law abiding landlords a bad name.

More fundamentally than that, however, this landlord exemplifies exactly why the Tenancy Deposit Schemes (Scotland) Regulations 2011 must be enforced rigorously.

Long-term: the Scottish Government must continue its efforts to improve standards in the Private Rented Sector and crack down on rogue landlords.

Tenants: know your rights and do not put up with unacceptable behaviour from your landlord.

Landlords:  Do the right thing by your tenants and follow the law.  If you are a good landlord, you have nothing to fear from following your obligations as stipulated by law, which includes securing tenancy deposits in an approved scheme.

Victory to the Lay Tenant!

PART 3 – REGULATIONS AND FORM FILLING: Extra Information for Tenants

A link to the Regulations in full can be found here:

http://www.legislation.gov.uk/ssi/2011/176/contents/made

Example to tenant of how to write your initial writ below:

Our successfully amended Writ is contained below. The amendment on the face of it was minor, but nonetheless it is important to get the Crave (what you want) correct, making sure you do not mix up your craves with the condescendence (narrative) or vice versa.

This required change was requested by a new Sheriff at the third hearing. The original Sheriff had made no mention of changes being required, so it came as a surprise to me at the third hearing to be asked specifically about the Crave.

The Sheriff listened to my verbal plea and understood the attempted action, however he was not satisfied this married with Crave, which is a lesson to lay representatives and new solicitors alike to outline what you want to achieve in the crave in unambiguous terms.

I made the point that given our clear intention and in pursuit of a just outcome that we might get a chance to remedy the Crave. I also argued that being a lay representative, perhaps some guidance from the Court is not an unreasonable expectation.

This was not unrelated to the value assessment made of us by the Sheriff at the initial hearings, who I am confident questioned our motives as Pursuers and appeared to be coming down on the side of the landlord, despite their flagrant disregard of their legal obligations as landlords.

Regarding the condescendence:

There might be tendency to over-think this and I certainly over-cooked the pudding before refining my draft, but try not to, as Sheriffs are busy and need solid information at a glance.

The best piece of advice I was given in relation to this came on my recent Diploma in Legal Practice at the University of Strathclyde and it is to consider how a child would tell a story by bringing the chronology to life in the most simple terms.

Any sensitive information relating to the specifics of the claim and/or the particulars of the Pursuer and/or the Defender have been removed.

The following is not expected to be the most spectacularly conceived Writ but a workable template.

Template of Initial Writ:

“SUMMARY APPLICATION UNDER Regulation 10 (a) of The Tenancy Deposit Schemes (Scotland) Regulations 2011

INITIAL WRIT

SHERIFFDOM OF [insert sheriffdom where the case is to be heard]

AT (Insert Court)

[A.B.] Former tenant, (insert name and address), suing under Regulation 10 of The Tenancy Deposit Schemes (Scotland) Regulations 2011. Pursuer

against

[C.D.] Former landlord, (insert name and address) Defender

The Pursuer respectfully craves the court

  1. In terms of Regulation 10 (a) of the 2011 Regulations, to grant an Order requiring the Defender to pay to the Pursuer within a period of 14 days from the grant of decree to follow hereon the sum of ONE THOUSAND THREE HUNDRED AND FIFTY POUNDS STERLING (£1350..)being an amount not exceeding three times the amount of the “tenancy deposit,” with interest thereon at the rate of 8 per centum per annum from the date of decree until payment.
  1. To find the defender liable to the pursuer in the expenses hereof.CONDESCENDENCE1.  On 8th May 2013 the pursuer entered into a short assured tenancy agreement with the defender in relation the property at (insert property). Said agreement will be lodged in process in due course, is referred to for its terms and those are held as repeated herein brevitatis causa.
  1. The lease referred to at Article 1 hereof was for an initial period of three months and thereafter the lease continued on a month to month basis. The defender did not provide the pursuer with an AT5 form along with the tenancy agreement to verify that it was a short assured tenancy.
  1. The tenancy was terminated (with the defender’s agreement) by the pursuer after a period of occupancy of 6 months and so came to an end on 8th November 2013.
  1. When signing the lease on the 8th of May 2013, the pursuer paid the defender the sum of £450 as a deposit.
  1. Under the Tenancy Deposit Schemes (Scotland) Regulations 2011, the defender was obliged to pay the £450 deposit into an approved tenancy deposit scheme on or before the 19th of June 2013.
  1. The defender was also obliged to provide the pursuer with certain information, by said date, in terms of Article 42 of the 2011 Regulations, including that she was, or had applied to be, entered on the register of landlords maintained by the local authority under section 82 of the Anti-Social Behaviour etc. (Scotland) Act 2004.
  1. The defender did not pay the deposit into a Tenancy Deposit Scheme and did not provide the pursuer with the required information.
  1. The defender does not appear to be listed as a registered landlord on the register held by the Scottish Government, nor has any landlord been registered for the property rented by the pursuer from the defender,(insert address).
  1. The pursuer contacted the defender on the 16th of November 2013 to request the return of her £450 deposit. The defender expressed her unwillingness to do so and ceased communication with the pursuer.
  1. The pursuer then wrote to the defender on the 4th of December 2013, requesting the return of her deposit and indicating she would proceed with legal action if the defender did not return the deposit.
  1. As of the 19th of June 2014, the defender has not returned any of the £450 deposit to the pursuer. The pursuer seeks an order as required by the regulations for a sanction to be imposed upon the defender as the result of her failure to secure that deposit in an approved tenancy deposit scheme.
  1. In view of the defender’s conduct as condescended upon, the present action has been rendered necessary.

PLEA-IN-LAW

The defender having been required by Regulation 3 of The Tenancy Deposit Schemes (Scotland) Regulations 2011, to pay the pursuer’s deposit of £450 into an approved tenancy deposit scheme within 30 working days of the beginning of the tenancy and the defender having failed so to do, the pursuer is entitled to decree as first craved a sanction of an amount not exceeding three times the amount of the tenancy deposit.

Signed

[X.Y.] Insert details (Pursuer)

Insert Pursuer’s address.

Note: Form 1 “Form of Initial Writ” can be obtained from the Scottish Courts website at:

 https://www.scotcourts.gov.uk/rules-and-practice/forms/sheriff-court-forms/summary-applications-statutory-applications-and-appeals-etc-forms

Lay Representation

You will also be required to fill out “Lay Rep” application, or “Form A1”, which is available from the Scottish Court website here:

 https://www.scotcourts.gov.uk/rules-and-practice/forms/sheriff-court-forms/summary-cause-forms

For brevity I have copied in the exact lay rep form we used in our case for the third hearing to show you how it is done.

This was in relation to the fourth scheduled hearing I was unable to attend, as it was compulsory for me to participate in “Skills Week” on the first week of my Diploma in Legal Practice.

An arrangement with another friend collapsed due to unforeseen circumstances. So, rather than abandon the case, another friend, Mr Donnie Fraser, stepped into the fray to save the day.

It is no mean feat entering a court room with a half an hour brief over the telephone. I asked Mr Fraser to stick only to matters pertaining to deposit protection. In the face of expected questioning on matters unrelated to the deposit protection (the single reason for raising the action), Mr Fraser, as per his brief, stood resolute, informing the Court that the offence of non-protection of the deposit was a strict liability one and the only matter to be discussed is one of how much to sanction the Defender.

This resulted in the Sheriff accepting everything in the Defender’s bundle, most of which related to monies already paid and other costs added retrospectively. This was an overtly cynical, possibly successful attempt by the Defender to besmirch the character of the Pursuer and muddy the waters of the key factors in the case – namely, deposit protection.

In a standard case the Sheriff is entitled to do this, but as we have seen a scheduled “proof” was as incompetent as it was an unnecessarily resource consuming exercise.

As I assured Mr Fraser at the time, it was important for us to take a principled stance, as this was an action on deposit protection, meaning to enter into discussions on the merits or otherwise of retaining the deposit itself would be to take part in the law being applied incorrectly – which we were not prepared to do.

Moreover, to agree might have thwarted the chances of any future lay rep so we had to remain strong on the law.

A Solicitor friend inquired about having a solicitor from the Highlands represent on our behalf, but the cheapest a Solicitor would appear for one hearing was £1,000. This is not a bad dinner ticket if you can get it, considering the ground work was already complete and the deposit in question was less than half that figure.

I suspect, however, that a Solicitor would have made assumptions about my interpretation of the law being inadequate and presumed the Sheriff to be correct, particularly as given how new the Regulations are and the small number of cases they have been used in so far,  it is likely a solicitor would have been unfamiliar with them. Although, it is possible the Sheriff would have taken a different view had the information been presented from a Solicitor and not a lay representative; however that is moot because we could not afford £1000 to have a solicitor appear on our behalf anyway.

I had trouble in some quarters conveying why the Sheriff conflating two issues as one was incorrect. However, Mr Fraser, who was the only person available, turned out to be exactly the man for the job. He never shirked in the face of authority and stood firmly behind the intention of Regulations, which he comprehended reassuringly quickly.

The Sheriff later in his written judgement misconstrued this as Mr Fraser being “ill-prepared” when nothing could be further from the truth. Mr Fraser stuck to his task of maintaining that the issues around deposit retention were completely irrelevant and that we were denied free third party arbitration through the direct inaction of the landlord in not securing the deposit.  He resolutely  maintained that entertaining such matters in court went entirely against the spirit of the Regulations.

Example Form A1 below

 

Form of Statement by prospective lay representative for Pursuer

Rule 1A.2(2)(b)

Statement by prospective lay representative for Pursuer

Case Ref. No.:

in the cause

SHERIFFDOM OF [insert Sheriffdom]

AT [insert Sheriff Court where case will be heard]

[A.B.], Address –  Pursuer

against

[C.D.] Address – Defender

Court ref. no:

Name and address of prospective lay representative who requests to make oral submissions

on behalf of party litigant: Mr Donnie Fraser,

Insert Home Address:

Due to unforeseen circumstances, Kevin’s Solicitor cannot attend today. Kevin, who

has acted as a lay rep in the past, on behalf of Miss T, started his Diploma in Legal Practice

in Glasgow this week. Therefore, he is unable to attend.

Identify hearing(s) in respect of which permission for lay representation is sought:

X v Y

The prospective lay representative declares that:

(a)

I have no financial interest in the outcome of the case

     
  1. Recognised Tenancy Deposit Schemes

So what of the tenancy deposit schemes available to a landlord? There are three main tenancy deposit schemes in Scotland, details of which are as follows:

  1. Letting Protection Service Scotland – lettingprotectionscotland.com
  2. My|deposits Scotland
  3. SafeDeposits ScotlandNote – SafeDeposits Scotland was set up in 2012 after the introduction of Scottish Government Regulations. The business currently retains 60% of Scottish deposits protected by tenancy deposit schemes and the organisation recently picked up honours at the third sector awards in Glasgow.

Read more at  http://thirdforcenews.org.uk/tfn-news/scotlands-top-third-sector-leaders-honoured-at-awards#Hre2UdvwMoezjOYO.99

Conclusion

This is an incredibly long article, however, if you have made it this far – thank you for reading!

If you are a tenant in a similar situation to the one my partner and I experienced, I hope you feel inspired to take action and that the inclusion of the legal guidance and relevant forms help you in your endeavours.   Please feel free to contact me at the email address below, should you have any questions or require further guidance. My intention has been to write a comprehensive piece about the Regulations, both to empower tenants to take action, but also to highlight why it is so important the Regulations are workable and enforced in the manner they were originally intended.  The Regulations are just one component of the fight to improve standards in the private rented sector and change the culture of landlord entitlement.  However, they are an important component, and their correct application can make a real difference to tenants, empowering them and reducing instances of tenant exploitation.

If you have any questions or require further information or advice, please email me at:  This email address is being protected from spambots. You need JavaScript enabled to view it. This email address is being protected from spambots. You need JavaScript enabled to view it.

About Me: Kevin Kane 

In 2014/15, I pursued my partner’s landlord in court as a lay representative, via the Tenancy Deposit Schemes (Scotland) Regulations 2011, culminating in the landlord being sanctioned twice the original deposit and I have since completed my Diploma in Professional Legal Practice at The University of Strathclyde.

This article initially appeared at https://handfulofearth.scot/

How to tax and REALLY fight austerity: Scrap the Council Tax and replace with a Scottish Service Tax now

 

Writing exclusively for The Point prior to Solidarity's National Conference in Glasgow this weekend, Tommy Sheridan argues that if we want to raise more money to protect and advance local council services then we should do it with a radically fairer and more redistributive measure than the blunt tool of a one percent basic rate rise.

There is such a proposal that is legal, worked out, that raises another £500 million for local government, and yet leaves 75% of Scottish households better off. Tommy put it in front of the Scottish Parliament before in the form of a Bill.

Perhaps now is the time to look at it again.

 

 

TIME FOR A RADICAL AND REDISTRIBUTIVE TAX POLICY – SCRAP THE COUNCIL TAX NOW

 

With the current ‘stooshie’ over Scottish Labour’s extra one pence on income tax proposal in full flow it is appropriate to inject some reality into the debate. Adding one penny onto the tax burden of those already reeling from the 5 year freeze on real income increases -because of Tory austerity measures which amount to economic illiteracy and political cruelty - is neither ‘progressive’ or socialist. It is cowardly and timid in the face of an onslaught against the living standards and public services which ordinary folk rely upon not seen since the dark days of Thatcher.

Implementing an across the board increase in taxation is not redistributive or radical. The Solidarity proposal is to replace the unfair council tax with an income based Scottish Service Tax is both.  In fact, it was debated in 2006 in Holyrood and remains the most radical redistributive measure ever considered by the Scottish Parliament. It is necessary now more than ever as it not only generates hundreds of millions more for local government jobs and services it does so in a fair and equitable fashion; meaning the wealthiest pay more and those on average and below average incomes pay less. The economic multiplier effect of increasing the disposable income of millions of low income Scots is also huge and guaranteed to increase economic activity at a local level improving living standards for millions.

Any party with an ounce of social justice accepts the council tax is an unfair tax. The very richest in society will only ever contribute three times more towards essential local services than the very poorest despite income differentials being several hundred times greater. A band A property for council tax purposes is the lowest band property. Band H is the most expensive. The nursery nurse on £12 – 13,000 a year living in a band A property will pay only a 1/3rd of what the chief executive on £1.2 million a year living in a band H property pays. Thus the council tax pays far too little attention to ability to pay when calculating how much each citizen should contribute to the costs of maintaining and developing essential local government jobs and services.

The Scottish Parliament is now in its 16th year of existence. Over that period the SNP and Greens have publicly stated their opposition to the council tax. However throughout those 16 years only one actual Bill to replace the council tax with a fairer system has been introduced. I should know as I introduced it via a Private Members Bill on 11th November 2004, and moved the Parliament to accept the proposal in early 2006. It was defeated and sadly the SNP opposed it that day on the principal basis that it was a tax for local services set nationally and collected nationally and therefore not really local in nature. This despite the fact all the money collected is wholly designated for and distributed to local authorities to pay for local government jobs and services.

A year later the SNP fought the 2007 Holyrood election on a local income tax proposal which was – wait for it – set nationally and collected nationally… They have yet to introduce an actual Bill to parliament to give effect to their proposal.

The Scottish Service Tax (SST) proposal which Solidarity will champion in the May Holyrood election is radical, redistributive and economically advantageous to local government and the economy as a whole. It is legally competent and involves the introduction of 5 SST Bands with different rates of payment based on income. The SST is levied on income at progressive tax rates. Those on incomes below £10,000 a year are automatically exempt. Those on £10,001 to £30,000 pay 4.5% on each pound within that band, £30,000 to £50,000 is payable at 15%, £50,000 to £90,000 18% and £90,000 and over 20%.

Extensive and robust research into the proposal in 2005 and 2006 produced detailed analysis which confirmed it was indeed a radical and redistributive tax which taxed the average and low paid less, and the very well paid more. Scotland’s pensioners would be significantly better off and not be subjected to embarrassing means tests.

According to the independent Scottish Parliament Information Centre (SPICe) in September 2004 635,000 citizens earned less than £10,000 per annum (25.92% of the tax paying total), while 1,924,000 individuals earned less than £25,000 p.a. (78.53% of the taxpaying population). Only 88,000 individuals earned more than £50,000 a year and only 20,000 earned more than £90,000 a year (representing 3.59% and 0.82% of the taxpaying population respectively).

619,004 of the wealthiest households (27.32% of all households) would have paid more under that 2006 Scottish Service Tax proposal,  while 1,646,818 households would pay less (72.68% of all households).

Based on the detailed analysis in 2004 the SST would generate £500 million more for local government jobs and services. Today, this radical proposal would eliminate the need for cuts budgets across Scotland and create more jobs and better services as well as boosting consumer spending across the whole country.

Bus drivers, refuse collectors, postal workers, nurses, cleaners, shop workers, pensioners would all pay less and have an increase in their disposable incomes. Advocates, council chief executives, bank managers, and of course MSPs and MPs would pay more and depending on their actual incomes - considerably more than they currently pay under the unfair council tax.

A household with 2 earners living in a Band D house, with one on £25,000 p.a. and another on £13,000 p.a. would save £225 a year

A household with a double income of £27,000 p.a. and £25,000 p.a. living in a council tax Band F house would save £81.27 per year

However, a household with a double income of £56,358 and £80,000 in a council tax band H house would pay £12,236 p.a. more. A large sum, but they would still be left with a joint gross income of over £10,000 a month to live on. And it is the wealthiest 20% who have seen their incomes rise in comparison to everyone else during the last 40 years of Tory and Blairite Labour Governments in Westminster

The SST not only replaces the unfair Tory council tax with a radical redistributive alternative it generates hundreds of millions more for essential services and encourages greater economic activity from the population as a whole leading to a virtuous economic cycle. The proposal benefits three quarters of Scotland’s households and puts the principle of fair taxation at the heart of Scotland’s politics.

The detailed statistics relating to 2005/06 may have changed slightly but the general thrust and overall effect will be the same in 2016 as it would have been in 2006. The radical reduction in real incomes and living standards suffered by millions of Scottish citizens over this last 6 years in particular demands radical responses from political parties committed to reversing the obscene inequality which scars the whole country. The SST represents only a start in the long journey towards a fairer and more socially just Scotland but it is a radical and significant start. When compared and contrasted with Labour’s one pence penalty on ordinary workers and the SNP’s disappointingly meek passing on of Tory austerity cuts from Westminster, it highlights the need for Solidarity to be represented in the Scottish Parliament after May 5th.

The Tory imposed cuts to Scotland’s block grant have no democratic mandate and represent economic madness and political cruelty. Those who are suffering and will continue to suffer are the poorest, most vulnerable and lowest paid citizens. There needs to be a concerted fight back involving the Scottish Parliament, all 32 of Scotland’s local authorities and the organised trade union movement to defy Tory austerity and setting of no cuts budgets. Scrapping the council tax and introducing the Scottish Service Tax would give Scotland the financial platform to do that.

The general election rout for the SNP was secured on the back of an anti-austerity platform. That platform of words has to now become real action and defiance. The slogan of Defy Not Comply with Austerity has to be taken up, and all of Scotland mobilised to declare that a Westminster government that can afford tax cuts for the rich, allow tax avoidance and sweetheart deals for the big corporations and £167 billion for immoral nuclear weapons is not fit to govern and possesses no mandate for its heartless programme.

Tommy Sheridan, Co-Convenor, Solidarity,  4th February 2016

 

Postcapitalism - a review

 

Steve Arnott reviews Paul Mason’s ‘Postcapitalism’ from a Marxist perspective, part 1.

 

Introduction

Let’s cut to the chase: whatever its flaws, and whether or not it has all the answers (it doesn’t pretend to), Paul Mason’s Postcapitalism is a seminal work of Marxist theory for the 21st century.

One might paraphrase one of Tolkien’s early reviewers on The Lord of the Rings, ‘there are those who have read it and those who are going to read it’, but alas this is probably not true.

Already walls of resistance are being mounted by the multiple ‘vanguard’ parties of the far left who claim the one true Marxist lineage that must properly pass through Marx, Engels, Lenin and Trotsky, and whose principle model of the overthrow of capitalism remains the Russian revolution of October 1917.

But then the first reaction of such organisms is always to circle the polemical wagons to defend that which matters to them most: their own existence.

Postcapitalism certainly doesn’t present or market itself as a work of Marxist theory – it aims at a wider audience. Mason is explicit is saying that doesn’t just want his ideas to become the property of the traditional left but of a new wider movement. As a stylist he is refreshingly entertaining as well as direct, and when complex ideas are introduced he attempts to explain both the concept and its intellectual origins in a way that the new or lay reader can follow. And any book that both defends and re-invigorates Marxist economic theory for the 21st century while referencing, along the way, Frank Herbert’s Dune, Carry on at Your Convenience, and Greggs in Kirkcaldy High street automatically gets a plus tick for accessibility in my view.

Prior to the Scottish independence referendum, I was probably aware of Paul Mason only as the admittedly capable and sometimes forthright economics editor of Channel 4 News. During the independence referendum and particularly in its latter stages I was encouraged by his forthright support for the YES campaign and his ability to see through the London media froth and understand the progressive nature of the campaign. I had no idea he was about to place a thought grenade under the collective butt of the complacent left.

The trouble for some will be that the book could easily have had another, admittedly less commercial subtitle: PostLeninism.

One can already hear the predictable cries, that it ‘downgrades struggle’, that it suggests ‘a peaceful evolution of capitalism’ is possible, that it is ‘gradualist’ etc etc.

In fact a careful reading of Mason’s work reveals such fears and allegations either to be groundless, or at best to be very unfair simplifications of what he actually argues.

And far from being a soothing pablum about how capitalism will peacefully grow over into something nicer, it is an urgent call to arms to bring about the necessary initial conditions from which a post-capitalist society might emerge. But more of that in part 2.

Mason draws on the work of a number of thinkers, but pre-eminently at the heart of Postcapitalism lie the ideas of one man. His name is Karl Marx.

In the first part of this review, I’ll concentrate on what might be the most surprising element of Mason’s book for some - his defence of Marxist economics and his attempt to build a viable and materially consistent ‘long’ view of capitalism that allows us to see why we may now have entered the ‘early days’ of its final stage as the dominant global economic system.

In the second I’ll look at Mason’s claim that it is the qualitative difference in some of the new technologies that capitalism has created – notably info-tech – that creates the incipient conditions for its demise, and how he looks back again to Marx for insight and theoretical support for his theory.

 

In Defence of Marxism

“(Marx) realised that the ultimate source of profit is work; specifically, the extra value coerced out of employees by the unequal power relationships in the workplace. But there is an inbuilt tendency to replace labour with machinery, driven by the need to increase productivity. Since labour is the ultimate source of profit this will tend, as mechanisation spreads across the whole economy, to erode the rate of profit…Marx called this ‘the fundamental law of capitalism'."

Thus Paul Mason introduces us to the fundamental Achilles’ Heel of capitalism and the underlying reason why capitalism operates in boom and bust cycles: what Marx called the law of the tendency for the rate of profit to fall. This law and the labour theory of value in which it is embedded are defended throughout the book as the most scientific descriptor of the underlying laws of capitalism and its regular crises. Mason even submits it to Karl Popper’s test of falsifiabilty; what experiments or evidence would show the theory to be wrong?  Mason replies that if boom and bust didn’t clearly exist as a capitalist cycle, or if we wait 500 years and capitalism is still a thriving system, that would certainly count. He clearly doesn’t expect that to happen.

There has been a debate amongst Marxist economists, sometimes reflected here and there within the movement itself, between advocates of the law of the tendency for the rate of profit to fall (LOTRPF) as the base law of crisis, and those who claim that crises occur because the working class (the majority in society) can never have enough money to buy back all the goods that are produced, usually referred to as ‘underconsumptionism’. Now is not the time and place to rehearse that debate, but Mason declares himself unequivocally for LOTRPF and is scathing towards theories of underconsumptionism, which if were true would see capitalism in permanent crisis, and which cannot explain the boom bust cycle.

Mason argues that Marx saw and understood capitalism as a whole system; a living and complex system with its own laws whose outcomes would often be the direct opposite of the intentions of individual capitalists themselves, even when acting in their own rational self-interest.

But he also argues – as Marx did - that capitalism is a highly adaptive system, constantly seeking new methods and markets to overcome the inherent tendency for the rate of profit to fall.

From that point of view, both Marx and his early followers living in the early stages of capitalism were unable to predict the extent to which capitalism could reinvent itself, recovering from destructive crisis through the development of new technologies and the opening up of new markets – not simply through imperialist or colonial means – but at home, domestically, through new technologies creating new hierarchies of needs and wants that didn’t previously exist.

For a complete and satisfactory historical material view of capitalism from its beginnings, through all of its stages up to the present, Mason argues that while Marx’s theory of crisis is absolutely correct, it is insufficient.

To fully understand capitalism, and how it may be superseded, Marx’s theory of crisis must be synthesised with something called Long Wave theory.

 

Kondratieff and the Long Waves

Soviet economist Nikolai Kondratieff was executed in his cell by a Stalinist firing squad in 1938. He had been accused of leading an ‘anti-soviet’ Peasant’s Labour Party – which didn’t really exist. As Mason explains:

“Kondratieff’s real crime…was to think the unthinkable about capitalism: that instead of collapsing under crisis, capitalism generally adapts and mutates. In two pioneering works of data-mining he showed that, beyond short term business cycles, there is evidence of a longer fifty year pattern whose turning points coincide with major structural changes within capitalism and major conflicts…Kondratieff was the first person to show the existence of long waves in economic history.”

Mason himself is an economist by trade, and his treatment of Kondratieff’s Long Wave Theory, its strengths and weaknesses, critiques from Marxist figures, misappropriations by capitalist managerialism are rigorous and in depth.

Most importantly, he sums up the key features of the theory thus.

“…each long cycle has an upswing lasting about twenty five years, fuelled by the deployment of new technologies and high capital investment; then a downswing of about the same length, usually ending with a depression. In the ‘up’ phase, recessions are rare; in the ‘down’ phase they are frequent. In the up phase, capital flows to the productive sectors, in the down phase it gets trapped in the finance system.”

The end of such long cycles are often characterised by wars and revolutionary waves, which can act as an impetus to new technologies which the capital that has taken refuge within the financial system can utilise to begin the next wave, where the fundamental mode of production is maintained but which has new and unique characteristics.

Mason has a problem with Kondratieff, however. As an adaptive model of capitalism, it lacks an underlying modus operandi to explain it, or more correctly how the shorter cycle operates within each long wave to bring about small evolutionary changes to capitalism and then the bigger ‘revolutionary’ changes that signal a new long-wave.

In a brilliant piece of dialectical logic, however, Mason argues that it is only Marx’s theory of crisis – the law of the tendency for the rate of profit to fall - that completes Kondratieff’s theory and makes it sensible and robust. Marx provides the underlying and fundamental law of capitalism which explains the shorter term cycle within the long wave that both pushes first the new wave of radical technologies and markets that characterise the long cycle’s upswing, and the limits of adaptivity within the new technological paradigm that brings the accompanying long downswing.

Thus having successfully synthesised the two theories, Marx’s theory of crisis and the long wave theory of Kondratieff, into a coherent whole, he is able to give a historical materialist account of capitalism that has a beginning, a middle and…an end.

And of course, that’s when it starts to get really interesting.

In part 2 of this review I’ll deal with the part of Postcapitalism that has been most widely trailed…the idea that in the niches and interstices of current capitalism – and particularly in the very nature of information technology - lie the potential forces to bring it to an end and establish a more harmonious and human social system of production, distribution and exchange. Surprisingly – or perhaps, unsurprisingly – we will find that it is Marx that Mason turns for the theoretical underpinnings of this view.

To close part one however, and to see how it builds a logical bridge to the second central thesis of his book, it is worth quoting Mason’s historical materialist summing up of capitalism as viewed through the lens of the Marx-Kondratieff synthesis, at length.

 

“1. 1790 - 1848: The first long cycle…the factory system, steam powered machinery and canals are the basis of the new paradigm. The turning point is the depression of the late 1820’s. The 1848-52 revolutionary crisis in Europe, mirrored by the Mexican War and Missouri compromise in the USA, forms a clear punctuation point.

 

  1. 1848 – mid 1890’s:  The second long cycle is tangible across the developed world and, by the end of it, the global economy. Railways, the telegraph, ocean going steamers, stable currencies and machine produced machinery set the paradigm. The wave peaks in the mid 1870’s, with financial crises in the USA and Europe leading to the Long Depression (1873-96). In the 1880’s and 90’s, new technologies are developed in response to economic and social crises, coming together at the start of the third cycle.

 

     3.   1890’s – 1945:  In the third cycle heavy industry, electrical engineering, the                          telephone, scientific management and mass production are the key technologies.               The break occurs at the end of the First World War; the 1930’s Depression, followed           by the destruction of capital during the Second World War terminate the downswing.

 

 4.     Late 1940’s – 2008:  In the fourth long cycle transistors, synthetic materials, mass consumer goods, factory automation, nuclear power and autonomous calculatiion creates the paradigm – producing the longest economic boom in history. The peak could not be clearer: the oil shock of October 1973, after which a         long period of instability takes place but no major depression

 

5.       In the late 1990’s, overlapping with the end of the previous wave, the basic elements of the fifth long cycle appear. It is driven by network technology, mobile communications, a truly global marketplace and information goods. But it has stalled. And the reason it has stalled is something to do with neo-liberalism and something to do with the technology itself.”

 

          Alex Salmond interviews Paul Mason at the Edinburgh Book Festival    

 

Part 2 of Steve Arnott’s review will appear later this week.    

Our Last Best Hope?


 

No one on the Left can fail to have been heartened by the surge of support in recent weeks for Jeremy Corbyn, now the clear frontrunner for the Labour leadership. The sheer enthusiasm for something genuinely progressive and socialist, completely counter-intuitive to the machine politics of spin doctors and focus groups, is palpable. So too has been the bewildered panic of the Establishment, and not only the one in the Labour Party.

This wave of support for change has been accompanied by a degree of hagiography which, while eschewed by the man who is its focus, illustrates the desperation of many to find some relief from the oppression of austerity as well as the seemingly contradictory tendency of collective movements to sometimes place individual leaders on pedestals. Got a problem with Tories? Inequality keeping you awake at night? NHS at risk from predatory capitalism? Just ask JC (which one, you may ask) to lay his hands on it and everything will be put right.

Consequently, his campaign has become something of a repository of hope for all on the progressive side. This has led already to inevitable disappointment for some when #JezWeCan, the White, Red or Green Knight depending on your viewpoint, declared his plans to re-open Welsh coal mines, downplayed his already lukewarm support for electoral reform and argued that there should not be another Scottish independence referendum.

Yet let’s not quibble. Not only is Corbyn himself a patently genuine person, it is what he represents that matters in the longer run. Just weeks ago, the received wisdom of the neoliberal media was that he was a hopeless also-ran. But now, this 68 year old man without a tie, in his Lenin hat and on his bicycle, is the choice of millions, enthusing young people to join Labour and seemingly moving his party to the point where it might finally reject austerity and return to the values of equality, community and public ownership that once sat at its beating heart.  The Left is awash with hopeful speculation and encouragement, while the Right has called time on the contest and instead is busy constructing the Tory story of a spoilt rich kid who is “a threat to national security” according to George Osborne in his most sinister Sith-like mode. (The gutter press has also come up with bizarre non-stories such as one where he was divorced by his first wife because he preferred a night in with a tin of cold baked beans and his cat Harold to going clubbing.  Another relates how he also made a sun-dial when he was 14, which apparently disqualifies him from socialism, according to the Daily Mail.)

We will know the outcome on 12 September. But that will only be the beginning.

What is certain is that whoever wins, what is undoubtedly fantastic news for the broad left throughout these islands is not good news for the Labour Party. However the ballots fall, the slow death of Labour will not be arrested.

Labour has been in the hands of a centrist narrative for at least the 21 years since John Smith died and arguably since before that under Kinnock. Although I was not a socialist at the time, I was baffled by the haste with which the establishment Left across Europe jettisoned even pale pink socialism when the Soviet Bloc collapsed, as if validating the rightwing claim that big state communism was indeed socialism, and vice versa, all along. Of course, an alternative view might be that, with Communism seemingly discredited and out of power, the capitalist states no longer felt the need to pay lip service to the idea of a social democratic choice within their own political systems: as Fukuyama proclaimed, neoliberal capitalism with its deregulated markets and privatised state was the only game in town. The “End of History” had been reached.

So Blair and Co were people of their times, reinforcing the narrative of “modernity”, embracing the effluence of trickledown political economy and forever focussing on a “centre-ground” which was ceaselessly tracking rightwards. Although Labour had already abandoned most plans to renationalise state services privatised under Thatcher and Major, Blair still found a symbolic need for his “Clause 4 Moment”, when he persuaded the party to abandon any commitment to significant public ownership. The End of History indeed and in the years following the neoliberal consensus has seemed embedded irrevocably, even post-crash in 2008.

Yet both dynamic theory and human history show that you can only drive in one direction for so long. For each action comes a reaction. Slowly but surely the disconnect between politicians and people has been building at least since the 2008 crash and 2009 expenses scandal, and maybe as far back as the disdain shown by Blairites to the public opposition to the Iraq War in 2003 – indeed, even in 1997 polls showed the majority of the electorate was well to the left of New Labour on tax and equality. With austerity digging deep now for seven long years, destroying the lives and hopes of millions of ordinary people while the super-rich augmented their already substantial holdings, the desperate attempts at “business as usual” are paying fewer and fewer dividends. Even the elite know the game, if not quite up, is certainly at risk and needless to say they will not go down without a fight of epic proportions.

So if “Corbynism” is the latest stage in a longer movement for change, what was the first? Outside of Scotland, perhaps perversely from a socialist perspective, the earliest significant manifestation was probably the rise of the British National Party back in 2005. The boom years of New Labour did improve services to most parts of society whether in terms of health, education or employment. Yet, as Wilkinson and Pickett so powerfully demonstrated in “The Spirit Level” in 2009, social cohesion and personal happiness are driven far more by equality than by overall prosperity. In such a context, a poor but comparatively egalitarian society such as Cuba rated higher on the Happiness Index than Blair’s Britain, with its “intense relaxation about the filthy rich”. In the UK, as in much of the Western world since 1989, the one compelling consistency has been the relentless widening of the gap between rich and poor. By some indices, Britain is now even less equal than Czarist Russia on the eve of revolution.

Consequently, the BNP and later UKIP deftly drew on the relative poverty and exclusion of poorer white communities to detach them from the Labour Party, whose arrogant electoral strategy was to take their support as a given. They then crystallised their grievances against a range of vulnerable groups, with ethnic minorities the primary but far from sole targets. As Ford and Goodwin’s 2014 book, “Revolt on the Right” showed, what started as an electoral uprising among the blue rinse brigades of the Shire Tories in the form of UKIP was soon transformed into a much wider populist renunciation of the Establishment – even if its leadership’s greatest wish seemed to be to become a new part of it.

This rebellion encompassed Labour as well as the Tories (and hoovered up a good chunk of the disillusioned Lib Dem vote) and its origins explain the evident Teflon quality of UKIP’s support. After the series of dire failures of the current political system, attacking UKIP because some drunk candidate sent offensive tweets or because Farage got his party magazine printed abroad had no effect. And on the main themes of UKIP’s  General Election campaign – immigration and Europe – the mass media and the neoliberal parties had already cravenly contributed to their validation rather than take any stand to oppose them. On other policies, most notably the NHS and PFI, UKIP struck decidedly leftwing stances, pragmatically if cynically reflecting the majority views of their supporters, whom polling showed to be significantly to the left on a range of issues – voters in search of a new home indeed.

And so, in England, we saw Farage’s party top the 2014 European Parliamentary poll nationwide – the first time since 1918 that neither Tory nor Labour was in first place.

In Scotland of course a different narrative has played out. The more democratic voting system for the Scottish Parliament has developed a highly engaged electorate, more than capable knowing how to effectively elect progressives. Since the very first Parliament, Scots have become used to a wider plurality of party representatives than elsewhere in the UK: Scottish Socialists, Solidarity, Greens, Pensioners, Independents and of course the SNP have made the concept of two, three or even four party UK style politics irrelevant.

Though, for a time, Labour’s predominance at Westminster persisted, here too, as we know, things were changing and ultimately far more dramatically so than anything south of the Border. The referendum campaign was clearly the catalyst, drawing progressives together in what must have been the most positively inclusive campaign for national independence in our planet’s history. And of course, as anyone who experienced any stage of it knows, its hallmark, on the Yes side, was its utter enthusiasm and creativity. Unleashed perhaps by the power voters realised they had to make a real decision, it marked a breakthrough in the political zeitgeist, and not only in Scotland. With the Yes vote consolidating into a record high for the SNP in May this year and reducing the neoliberals to just 3 seats between them, the message that ordinary people can force real change, even in an assuredly undemocratic system, was heard across the UK. The reverberations of Syriza and Podemos’ successes on the Continent further reinforced the drive towards a new paradigm.

Post-referendum, in England it was the Green Party that saw its stock rise most: its membership rocketed from under 20,000 in May 2014 to over 65,000 by October (ahead of UKIP and the Lib Dems). Strikingly, just as it was the three “Westminster Parties’” joint attempt to bully Scots over the use of the Pound Sterling that unlocked the drive up to 45% Yes, the main impetus for the Green Surge in England was the avowed refusal of the same three parties to give the Greens a place in the leaders’ debates.

The Greens’ rise was spiked in due course by a combination of bad media and the lack of a democratic voting system, but even now our vote is holding in UK-wide polls at 6% to 8%, a huge advance on the 1% and 2% at the equivalent point in the last Parliament.  By contrast, UKIP is becalmed and the populist right seems to be making little headway. Indeed, while migration is high on the political agenda, the obvious desperation of the refugees drowning in the Mediterranean has perhaps finally shown up the evident inhumanity and self-interest behind UKIP’s agenda, itself rooted in capitalist neoliberalism. There is, it seems, a rare but wide open window of opportunity for socialists.

And so Corbyn is no isolated phenomenon. His exponential rise continues the growing revolt against the Establishment. But it is only one step in a much longer process, and one whose outcome is far from assured.

For, just as the neoliberals closed ranks in Scotland and against the Greens, so too has their local chapter within the Labour Party turned on Corbyn and his supporters. Nearly every day has seen some Labour Big Beast – or maybe more appropriately some Aged Dinosaur – trundled out to explain why the “selectorate” of members, union affiliates and registered supporters are voting the wrong way. Patronising and arrogant by turn, it seems they have no understanding at all of how irrelevant and offensive ordinary voters find them. Like many liberals, their concept of democracy is a four or five yearly voting event where the masses dutifully confirm their inherent right to rule. Like the ancient Roman election rituals that were stopped as soon as the Emperor was acclaimed, our political leaders, extending deep into the corporate and media worlds, perhaps unsurprisingly assume that they will always be there. In this set up, the “modern” Labour Party has become little more than a pressure valve, a tool to undertake a spot of PFI meddling here and Surestart tinkering there, to keep the “core vote” in its place. As we saw just weeks ago, this even led to three of the four leadership candidates abstaining from voting against the Government’s harsh Welfare Bill, supposedly for the most tenuous of procedural reasons.

But, just as it nearly didn’t work in Scotland in 2014, it seems not to be working within Labour ranks now. Party officials have hurried to exclude tens of thousands of applicant voters, the vast majority clearly Corbyn supporters, using the most nefarious methods. This #LabourPurge has included banning longstanding activists and trade union leaders from the vote. It even stooped to asking a schoolboy member to spy on two of his classmates who joined the party. The 1960’s joke line attributed to the old corrupt Glasgow Labour Party –“You cannae join, we’re full up” – is now seemingly a tragi-comical reality.

 

Brown, Kinnock, Blunkett, Alistair Campbell, David Miliband and of course Blair himself have all denounced Corbyn in the most vituperatively apocalyptic terms. Bridges haven’t been burned – rather they have been nuked. While Brown, bizarrely pacing up and down and gurning wildly at the walls like some captive bear driven insane in a tiny cage, decried Corbyn’s ideas as “not modern”, Blair has emerged from hiding on at least three occasions to warn of the party’s impending “annihilation”. Indeed, in a breath-taking show of how not to win hearts and minds, in his latest proclamation he accused the Islington North MP’s supporters of living “in a parallel universe”.

 

Regardless of the outcome of the ballot, a political bloodbath will inevitably follow – none of these men will ever be able to work with a Left leadership. Nor shall their craven proxies like Liz Kendall, Tristram Hunt and Chuka Umunna, who have already set up a new group with the risibly ridiculous name of “The Resistance” to work against a Corbyn leadership. New Scottish Labour leader Kezia Dugdale is similarly hamstrung by her hostile comments and stories circulate of coups by Christmas by overwhelmingly unsupportive MPs, unheard of hubris in a supposedly democratic process.

So, if he wins, Corbyn will likely face civil war leading either to his eventual deposal or to an SDP-style break by the rightwing. If he loses, perhaps topping first preferences but losing out as Burnham, Cooper and Kendall’s second preferences transfer to each other, then in spite of the huge level of support he will have garnered, the vitriolic right will clearly be on a mission of vengeance. In such circumstances, a huge tide of new members and longer-standing leftists is likely to flow out again, once more in search of welcoming harbours.

Where then does that leave the rest of us on the Left, especially the non-Labour Left?

Few people I have come across in the Greens, TUSC, Left Unity or the Scottish Left have anything but goodwill towards Jeremy Corbyn. Both his own integrity – eschewing the favours of the party whip in order to rebel over 200 times in his career (to puppet Burnham’s proudly proclaimed zero) – and the attraction of the policies he is proposing are beyond question. He has worked closely with Green MP Caroline Lucas both inside and outside of Parliament as well as with a range of non-Labour political parties and groups and appears to seek a more pluralist approach. He has acknowledged the need for Labour to co-operate with the SNP, a welcome return to reality compared to his naysaying colleagues. How far this would go without conflict over a second referendum or if there was some revival of Scottish Labour under an anti-austerity UK leader of course remains to be seen, but the tone is far more positive than before.

 

The challenge for us all will be that perennial one for the Left – of being willing and able to set party aside, to support broad policies as opposed to perfect ones and to see the paradox that the plainly modest and unassuming Corbyn indeed leads “Not A Man, But A Movement” as one over-enthusiastic internet meme declared.

It is also about being generous, imaginative and flexible. We have seen the founding of RISE this last month. And just as the last decade or so has witnessed a maelstrom of political change with new parties rising and old ones fading, the likely fissures in the Labour Party point to both threats and opportunities for the broad left. If the Corbyn phenomenon is the latest step in a long-term political realignment, the question we should be asking is what the next steps beyond are. Sticking rigidly to existing party silos would be to make the same fossilized error as the neoliberals.

No political party is forever – not even Labour which, as Will Self has pointed out, is now too much of a “broad church” to continue in its current form with any real meaning. Parties are simply vehicles for putting ideas into effect. They are not ends in themselves. If we want to transform our society, we need to be ready to work across boundaries, to form new electoral alliances and morph into new parties. Egos will have to be set aside and the collective future prioritised ruthlessly over individual pride and place. Only in this way will we have any hope of the new world we want, of a fairer society, of an economy based on sharing and sustainability and where the generations to come have futures to imagine and make real. The hundreds of thousands of newly engaged citizens will neither understand nor forgive us if we draw lines in the sand over which precise policy sub clauses to include in a programme or fall out over the selection process for joint candidates.

This is the challenge for the Left. Very soon we may have our best chance in a generation to make the change we need. With the global crises increasingly engulfing our world, it may also be our last chance to change in time. We must not fail.

 

 

Adrian Cruden

Blogger at Viridis Lumen, Green Party of England & Wales activist & former parliamentary candidate for Dewsbury.

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