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.
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.
Other articles by Steve Arnott in The Point include:
(science and ideas)
(Darwinist-Marxism, evolution/revolution, post-capitalism)
(culture, education, The Culture)
(independence, socialism, progressive policy ideas)
(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…
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:
(science and ideas)
(Darwinist-Marxism, evolution/revolution, post-capitalism)
(culture, education, The Culture)
(independence, socialism, progressive policy ideas)
(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…
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.
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?
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/
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:
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 ,  and  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.
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.
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.
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:
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
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
[C.D.] Former landlord, (insert name and address) Defender
The Pursuer respectfully craves the court
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.
[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:
You will also be required to fill out “Lay Rep” application, or “Form A1”, which is available from the Scottish Court website here:
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
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
[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:
I have no financial interest in the outcome of the case
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:
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.
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/
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
Steve Arnott reviews Paul Mason’s ‘Postcapitalism’ from a Marxist perspective, part 1.
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.
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.
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.
Blogger at Viridis Lumen, Green Party of England & Wales activist & former parliamentary candidate for Dewsbury.
What kind of Independent Scotland?
And how do we get it?
There's been some debate on social media recently as regards how to win over NO voters for the next independence referendum, how we should approach the currency question, should we be in Europe after the EU's treatment of Greece and so on.
I think it's important to remember that there will be many visions in people's heads about what an independent Scotland can or should be but that the direction we take can be determined democratically by all of us once we secure independence collectively.
There are some issues and ideas I would like to throw out there for discussion, however.
There are three issues the YES movement needs to do better on in order to win a YES vote and some we should be able to park until after a YES vote.
Let me deal with the three issues we need to do better on first.
Firstly, we need to reassure pensioners that their pensions will be safe.
Scaremongering on this issue by Labour and Better Together was effective, if utterly immoral and dishonest. I would propose that the Scottish Government sends an official letter outlining the facts to every pensioner and potential pensioner as an official guarantee of their pension; that it should contain a helpline number for people to report scaremongering and seek accurate information, and that this is backed by a campaign of billposters and newspaper adverts.
Secondly, we need to deal more effectively with the question of identity.
Like it or not some people see themselves as British as well as Scottish, or even primarily British. Many of these will vote against independence no matter how strong the case or how badly Westminster is actually treating them, but it will be necessary to win some of those votes over.
We need to say more loudly to people that their British cultural identity is not only NOT at risk from independence, but will be guaranteed in an independent Scotland's constitution as part of our national diversity. We need to repeat – again and again – that our movement is a democratic movement, not a national ethnic movement. That anyone who wants to consider themselves British cannot have that taken away from them because the British Isles is a geographical entity, not a political one. Just as someone from Denmark or Norway is Scandinavian despite those countries being independent, someone's Britishness doesn't change just because Scotland becomes independent. Posters in certain parts of the country emphasising these points and the right to continue to hold a UK/duel passport could chip away at the Brit identity vote, particularly if UK Labour continues to abandon traditional social democratic ground.
Thirdly, we need to have a firm position on the currency.
The option I would argue for is a Scottish Pound, backed by a newly created Scottish Central Bank and pegged to a basket of international currencies in the first instance. This could be the case for the first years of independence, with a review after 3 years and a guarantee that other options would be put to the Scottish people if certain key targets weren't met.
And talking of referenda.
Should we be in Europe or out of it?
Should we keep the Monarchy or become a modern democracy?
Should we be in NATO or out of it?
Should public ownership of key sectors like banking, energy, transport be written into our new constitution?
Across our broad movement there would be disagreement on all of those things. They would be contentious and potentially lose votes if written in, either way, to a second YES prospectus.
Yet these are key issues. I believe that the way to deal with those issues is to say that the Scottish people will have the final say on them in a second, multi-question referendum to take place three years AFTER Scotland becomes an independent country. That would allow plenty of time for people to debate the issues and for them to be well aired on both sides. In the course of the referendum itself it would allow all pro-independence parties to unite while different parties could put their own positions, and everyone could say: the Scottish people will decide on that ONCE we are independent.
What do you think about these modest – but potentially game changing – suggestions. Please let me know, either here on the thread or on our Facebook page.
Steve Arnott July 2015
In order to shape for the future we need to start with the people who are the future. These people are school pupils. Secondary school is the place in which majority of us gain our first steps of independence from our parents, where most of us begin to learn the things which will help form our opinions and our lives. As a socialist, I want to see a fair society but in order to achieve a fair society we must look at every issue facing the country and I for one believe tackling the education issue is an important one that must be done sooner rather than later.
As it stands the education system is failing our young people every single day. Their futures hang in the balance due to societies failure to stand up and sort out the mess. Can we allow lives to be thrown on the scrapheap just because some never succeeded in passing tests made up by someone in a room somewhere when they were 16? No, we cannot. It is immoral and must be changed.
1st and 2nd year of Secondary School are used as teaser years as such. They are used to give pupils a taster of all subjects before they go onto choosing their subjects and sitting exams, in essence splitting Secondary School into two parts. Recently education in Scotland went under a slight change. The Curriculum of Excellence has scrapped the use of Intermediate and Standard Grade leading to Highers and replaced them with Nationals which then lead on to Highers. While Highers are one level, Nationals are of multiple levels (I.e National 4, National 5) which may be taken at different times depending on the ability of the pupil. Nationals have attempted to move away from the strict exam system that was in place under Intermediates and Standard Grades. While undertaking National 4, there is no end of year exam as there are tests throughout the year and graded on coursework. National 5 and Highers though are still concentrated around the final end of year exam. National 4 is a step forward though it is not nearly enough.
The end of year exam is futile as - rather than ability - it measures how well someone can remember information and spew it up onto a page. There is also the fact pupils understand that these final exams could be make or break for the rest of their lives which has adverse effects for many. Just as before though, there is a strict curriculum in which pupils must follow with coursework that rarely differs year-to-year. This is set up in order for them to "Learn" the information required for the final exam. The problem with this though is that there is very little room for creativity and pupils learn from textbooks rather than from entertaining ways and using their own initiative. It must be remembered, the blame cannot lay at the feet of teachers as they must try to get their pupils through the exams meaning uninspiring, strict coursework is the only method of doing so most of the time.
Pressure on teachers result in pressure on pupils. Since the formation of School Tables – Measuring how well a school is performing based on exam results – there has been more pressure put on teachers and pupils than ever before. It has not helped improve the education system at all. It has resulted in teachers feeling that they must try to get as many pupils to pass the exams as possible so that they look like they are succeeding in their job. Both Conservatives and Labour have touted the idea of performance related pay for teachers which will then just inflate the problem. It effects pupils as schools will not put pupils through the exam who may not pass as they want to get the highest pass percentage possible, meaning many pupils do not even get the chance to sit exams which are so important to their futures. The idea behind this is that schools compete against each other and so will inspire each to improve. First of all, schools which are located in areas of worst poverty tend to perform "Badly" despite the best efforts of teachers. We also know from experience that competition more often than not harms progress particularly in the public sector, look no further than the setting up of NHS Trusts.
There is a basic failure to understand the needs of pupils. Education is very much academic orientated. This has resulted in many pupils who are not great academically falling through the cracks and leaving school with little or no qualifications. There has been an attempt to combat this through the use of Vocational courses which result in pupils undertaking the courses in which they learn skills that can be applied to hands on jobs such as construction. While this is a positive step, it still fails to meet the needs of the pupils as they still rely on achieving good results in their exams. Employers even for apprenticeships such as joinery ask for a good Maths and English qualification even though the exam proves little of what skills the applicant may have in either of these subjects due to the nature of the exams. Pupils are being churned out to be obedient workers rather than knowledgable people ready to take on the world.
"Each according to their ability, to each according to their need"
This quote from Marx is the perfect way to sum up how education should be based. In order to make the most out of education we must tailor it to pupils not tailor it to how "experts" believe it should be. Firstly, we must change the age pupils can leave school from 16 to 17. This will not only benefit pupils of having an extra year to mature and develop. It may also ease unemployment meaning that there are not so many people leaving school and going hunting for full-time work. The school years should also be increased from 6 years to 7. One of the reasons behind this is that many people leave school at the end of their time and still do not know what they would like to do career wise. It will not totally solve that problem but it will help. Secondary school holds the key to the future and we must ensure to act like it does. I believe that secondary school itself should be split into three parts; Junior, Academic and Vocational. There must also be a complete dumping of the School Tables.
The Junior years of school are compulsory for all beginning at 1st year and continuing until the end of 3rd year similar to that of the teaser years (1-2) currently. During these years pupils will undertake a range of subjects with the main aim being not only to educate in all areas useful in everyday life but also to help them develop their own ideas and use their own initiative and to be creative. It is very important that we bring creativity back into schools as it is through this that people come up with world changing ideas and where young people become individuals rather than an army of workers. Stimulating the minds of young people pays off rather than boring them in tedious lessons. If we make lessons more exciting for pupils then they will be more likely to engage in class which will be of massive benefit to those many pupils who find it hard to concentrate or are easily distracted in school. In the figure below you can see an example timetable made up which shows what an average school week may consist of between the years of 1-3.
The first thing you will notice is that the length of the school day is roughly the same as it is now in most schools but the difference is that each class last 2 hours. Having classes for 2 hours is the perfect way of engaging with pupils and having exciting lessons. Pupils will have the time and space to be creative and come up with their own ideas. During these years pupils will be graded although it will be through the use of small tests throughout the year and more importantly, on coursework. The idea that someone cannot remember a handful of quotes to analyse a poem they aren't even interested in during a 2 hour exam should make or break their future is ludicrous. Home Economics classes will help pupils learn about how it is like to take care of themselves and prepare them for the outside world rather than leaving school not knowing how to cook etc. Computing Skills are a vital part of the world today while it is important to learn of politics, ethics and the likes in both Modern Studies and RMPS. Creative Studies will be the class in which pupils can choose to do art, woodwork, music or other creative classes such as that. They will not be graded in this class as the idea of it is to let them free to express themselves and have a bit of fun while doing so. Maths at this early age should be concentrated around dealing with problems that you may run into during your everyday life such as wages etc. although Advanced Maths will also be a subject available to take after 3rd year but I will come to that later. Physical Education is important for every pupil, particularly with the obesity problem facing the population now so there should be 4 hours of PE per week. Having the ability to communicate in more than one Language is becoming all the more important so that too should be undertook compulsory. History and Geography are among the most valuable subjects someone can be knowledgable in and so both should be compulsory and looked into at great depth. Science will cover all the sciences and give pupils an insight into everything from Tesla and Ohms law to the human body and Zinc.
Once Junior years are completed there will be two options facing pupils. They can either choose to go down a more Academic path or a Vocational one. In these years you will choose subjects that you wish to undertake in more depth and that will be your speciality. The subjects will be very much as they are now which include things such as Biology, Physics and Chemistry - rather than just Science - Advanced Mathematics and many others. These subjects taken should have 2 exams per year with both together contributing to 30% of the pupils final grade with the rest made up from coursework. The subjects mentioned above would be taken by those going through the Academic Path although they are not totally limited to those pupils. Academic pupils will choose their subjects when they first start the pathway and it will take them 2 years to complete the subjects. After the 2 years they will have options available; to take more subjects that they wish to do and never did the previous 2 years, to take the subjects they have done previously but at a higher level if possible, to go to college and study for an entrance level certificate, to change over to Vocational 1-2.
If a pupil decides to do Vocational then they would have the ability to do the likes of Advanced Maths should they wish. There would be room in the timetable for this to ensure that they do not miss out on academic studies. They would also be encouraged to take academic classes that would compliment their Vocational Studies (They may look to be becoming a Civil Engineer in which Vocational along with Advanced Maths would suit them for example). During their time in Vocational the pupils would undertake a range of activities in the first 2 years such as construction, bricklaying, plumbing, forestry and other subjects. Every school would have good working links with their local colleges so that in the pupils final 2 years they would be able to have spells of doing beginner level certificates in specialised subjects at college (Civil Engineering, Welding etc) which would mean they would not need to leave school and have achieved good exam results to get into college. The schools should build up relations with local businesses so that during the final 2 years pupils could also do work experience with local tradesmen. Also, during these final 2 years they should be coming back to the school to continue with studies that will only be done within the school. Together this would see a three pronged approach in the final 2 years of the Vocational path which will give pupils a good knowledge and understanding of a trade etc. they may wish to make a career in. If desired, pupils could also move from Vocational to Academic once they have completed the first 2 years and although this would mean a wide ranging knowledge, it would mean that it would not be so in depth. This could help pupils who are still unsure of what they would like to do as a career path as it will leave more doors open when looking to go to college/university when they have finished school.
In the figure below you can see the pathways available to pupils
Schools have been under funded and mismanaged for too long. While to some this idea may seen far fetched and not possible, I believe that it is very much possible. It just takes time, effort and the confidence to make such change. We have failed to see change in the class room for so long because politicians are too scared in case a mess is made of it and they do not wish to direct more funds that they feel is necessary. You cannot put a price on the future and so we shouldn't try. Anything spent over what the current education budget currently is could be repaid double if it is done correctly and the pupils are given the chance to reach their full potential. Schools cannot be behind new trends. Classes must be created in order to meet the demands of new jobs and careers. Coding for example is fast becoming an important part of our world yet schools are still to have Coding and Programming as subjects to take in.
While not perfect, I have set out what I believe will give pupils more options and help mould them into the people that they want to be without putting needless obstacles their way. As someone who only left secondary school a few years ago, I have experienced first hand how the modern education system works and believe me, it does not work. There is much work needed though it is this basic idea which could hold the key to improving the lives of thousands which if works, will also improve the country in many, many more areas. One of my key arguements behind this is that keeping secondary school so academically orientated not only damages pupils but infact our society and economy. If pupils who are better with their hands than with their minds do not get the change to use them, we will have thousands of possible joiners, bricklayers, electricians, plumbers etc sitting either on their couches at home, a till in a shopping market or at a phone in a call centre. Lets open up the future.
P.s Apologies for the figures above, my skills on Paint leave a lot to be desired!