Friday, 28 August 2009

A hero's welcome

Scotland’s First Minister says Abdelbaset Ali Al-Megrahi’s release ‘was the right thing to do in terms of the Scottish justice system’. But Scotland’s justice system did not release Mr Al-Megrahi, nor did it send him back to Tripoli.

While our law makes provision for the release of prisoners on compassionate grounds it’s a political decision whether to do so. Professor Alan Miller is right to call for an impartial tribunal to ensure that such decisions are no longer political.

I’m no expert on the Lockerbie case but I know one thing. Despite the claims that Kenny MacAskill was exercising a ‘quasi-judicial’ function, the decision to release Mr Al-Megrahi was not made in judicial language. If it had been it may have been difficult to fault.

After all, section 3 of Prisoners and Criminal Proceedings (Scotland) Act 1993 gives the Scottish Ministers power to release a prisoner on licence if they believe there are ‘compassionate grounds’. But Mr MacAskill’s language went far beyond section 3.

He used this case to make a political speech to the world.

A speech about the ‘Government of Scotland’ and its independence; a speech which picked a fight with the UK Government on a premature application for prisoner transfer; a speech which conflated the legal test of ‘compassionate grounds’ with nationalist propaganda asserting compassion as a defining characteristic of Scots and Scotland.

This episode shows us why politics and judicial decision-making are dangerous bed fellows.

Some media commentators have suggested Mr MacAskill’s religious reference was a play to a US audience. Whatever it was, it was a serious lack of judgment to talk about a ‘sentence imposed by a higher power’ in the context of a terminal illness. What does this say to people dying from cancer?

For me the most contradictory part of Mr MacAskill’s speech was his rejection of the prison transfer request from the Libyan Government while authorising Mr Al-Megrahi to return to Libya.

Leaving aside the fact there was an outstanding Crown Office appeal standing in the way of that transfer application, our Justice Minister found that the American relatives of those killed in the Lockerbie bombing, and the US Government, ‘had an expectation or were led to believe’ any sentence would be served in Scotland. For that reason, he rejected the prisoner transfer request.

So why did he permit Mr Al-Megrahi to return to Libya?

A prisoner released under section 3 of the 1993 Act is still under sentence. He is only released on licence, subject to conditions, and liable to be recalled to prison if those conditions are broken.

In other words, upon release Mr Al-Megrahi continued to be subject to a sentence imposed by a Scottish court. According to our Justice Minister’s reasoning it would have been a disservice to the American families of the victims, and the US Government, to permit him to return to Libya.

So why did he authorise his return to Libya?

Why didn’t he require Mr Al-Megrahi to reside in Scotland, under licence, and in keeping with the international promise which he valued?

Remarkably, this option was dismissed with no explanation save one brief sentence: ‘Clear advice from senior police officers is that the security implications of such a move would be severe’.

How severe? Would it have been impossible?

Was consideration given to a move to another part of the UK? If not, why?

These questions require substantial answers.

Release on compassionate grounds did not mean allowing Mr Al-Megrahi to return to Libya.

The political naivety of our Justice Minister was available for the world to see when Mr Al-Megrahi was given a hero’s welcome on his return to Tripoli with saltires waving.

As the dust from this decision gathers into a storm, let us be clear about one thing. It wasn’t the people of Scotland or Scotland’s justice system that sent a convicted mass murderer back to a hero’s welcome.

Wednesday, 10 June 2009

Victory for common sense

‘You turn if you want to. The lady’s not for turning’. In 1980 Margaret Thatcher refused to change her economic policies which saw jobs and communites sacrificed for a free market mirage. The 1980 recession hurt a lot of families in Britain and many communities still bear the scars. Three decades on and we have another recession and another lady who was not for turning.

Over the last year the Cabinet Secretary for Health and Wellbeing has consistently denied there was any need for additional legal protection for homeowners in Scotland. When campaigners claimed repossession was all too often a first resort against Scottish households unable to access the Mortgage Rights Act they were ignored or dismissed.

When a pre-action protocol for repossession actions in England and Wales was announced last October not only did Nicola Sturgeon dismiss it, she claimed Scots were already better protected than homeowners in England.

Today, the Cabinet Secretary has announced the Scottish Government’s intention to ‘quickly’ introduce a Scottish pre-action protocol for repossession cases with additional legal safeguards for households facing repossession in Scotland. It’s a victory for common sense that the Scottish Government have accepted some of the recommendations from the Repossession Sub-Group report.

My only regret is that it has taken eight months of denial to get to where we are; and many Scots will have lost homes which could have been saved. But here we are and I am grateful to Cathy Jamieson, Ross Finnie, Patrick Harvie, and Margo McDonald for their cross-party campaigning for urgent change. There is no doubt that without their intervention there would have been no Repossession Sub-Group, and no policy U-turn.
Yet there is much work to do. The Scottish Government must bring forward their law reform as an Emrgency Bill under standing order 9.21. Such a Bill can be progressed extremely quickly and there must be no further delay in protecting households in Scotland from needless homelessness.

While the report of the Repossession Sub-Group is very welcome it would be a mistake to think that requiring repossession cases to call before a sheriff will of itself protect vulnerable homeowners. For example, in the first four months of this year 500 repossession cases were raised at Glasgow Sheriff Court and decrees were granted in absence in 75% of those cases. Whether they call in court or not, people will not engage for a variety of reasons.

Repossession actions are the tip of an ice-berg; beneath them will often lie a complex series of multiple debts, fuelled by unfair default charges, other payment litigation and diligence, family and personal relationships under great strain, mental and physical health problems, and a whole host of other social issues.

What people need is a package of free legal representation and advice, with money advice and care services, tailored to meet their individual circumstances. With section 11 of the Homelessness Act now in force we could offer this service to every household in Scotland threatened with repossession or eviction.

The Scottish Government is not proposing that; nor is it proposing to address the problems with civil legal aid in repossession cases, the ability of lenders to off-load unrestricted legal costs onto debtors’ mortgages, and the fact that the Mortgage to Rent Scheme has been rendered unworkable from rules introduced by them in March 2009.

Scotland has an opportunity to get this right; the prize would be the best prevention of homelessness service in the World.

Monday, 18 May 2009

Parly expenses

When Scots receive legal aid to prevent the repossession of their homes, the legal aid board expect them to pay all of that money back if they have made a notional capital gain in saving their home.

When I met Housing Minister Alex Neil recently, I argued that this was unfair as financially poor households were being told to pay back hundreds of pounds in legal aid when they were living on breadline benefits.

Mr Neil disagreed. He told me that it was morally right that those who had made a notional profit with the help of public funds should pay that money back.

Accordingly, will he and the other 27 MSPs who have made a notional profit from the Scottish Parliament's second homes allowance repay the public money they have received? The Herald (18 May) reports they have made an overall profit of £1.7m, with Mr Neil personally benefiting from a potential £95,505 profit.

I welcome Patrick Harvie's call for MSPs to relinquish any capital gains for the sake of the reputation of the Parliament, but would argue that the Scottish Parliament needs to change the rules to make it a legal requirement for MSPs to repay all second home allowance payments from capital gains.

A simple solution would be for the Scottish Parliament to secure an all sums due standard security on MSPs properties, so that when the property was sold the taxpayer would receive a full refund of mortgage interest relief payments. This would prevent capital gains being hidden, for example, by equity being taken out of the property by way of an increased first or second mortgage.

It is ridiculous for the First Minister to dismiss Scotland's expenses scandal as a 'legacy issue'. Firstly, there is nothing historic about 28 MSPs standing to trouser £1.7m thanks to the taxpayer, and secondly these MSPs will continue to get free mortgage payments until 2011.

Until this issue is resolved, the Scottish Parliament's nose is in the same trough as Westminster.

Wednesday, 6 May 2009

Named & shamed?

From the descriptions given, none of the 16 people named, shamed and banned from the UK are folk you would want to meet.

While denying someone entry to the UK on opinion alone would be manifestly unjust, the Home Secretary has relied on evidence from intelligence agencies. Assuming that evidence is robust, the UK public interest has been well served.

But we need to exercise caution. We all remember the flawed evidence that "justified" a pre-emptive strike on Iraq. Whenever we conflate intelligence with high-profile media coverage and politics, people get killed or hurt.

The exercise of power requires due process of law, not YouTube or dossiers. How many of those excluded were actually going to visit the UK?

Some of those named are in foreign prisons, so are we being told of imminent threats or possible ones that might or might not happen sometime in the future?

Legally, there is a logic in revealing some of the evidence that exclusions are based upon, but announcing who has been banned does appear to represent a further extension of our vacuous, voyeuristic, celebrity-culture obsession.

The business of government and the exercise of legal power must always be based on cold, hard facts, and not how things might look in the media.

Thankfully our legal system provides checks and balances on political power. It would be possible to judicially review a decision to exclude someone banned from entry to the UK if that decision was irrational or unreasonable.

Today there are reports that the vile US shock-jock Michael Savage – who is on the 16 least wanted list – is planning to sue the UK Home Secretary for defamation. He objects to being named on a list along with neo-Nazi convicted murderers.

I believe naming and shaming is a slippery slope. Do we start to name and shame those accused of things that we don't like within the UK? And if so, whose interest does that serve?

Wednesday, 29 April 2009

Rip-off charges

This afternoon, Glasgow MP Mohammad Sarwar will launch his Prevention of Excessive Charges Bill in the House of Commons. The Bill has full cross-party support. Govan Law Centre has been working closely with Mr Sarwar to campaign for stronger legal protection for UK citizens against unfair default charges.

The culture of charging in consumer contracts has become an insidious and unethical business in recent years. A form of mass exploitation whereby our banks and other UK businesses rip-off customers at weak points in their life.

Charges are akin to a debilitating disease in our society. They crush the ability of ordinary people to make ends meet in very difficult times. They push people into unnecessary financial hardship and expose countless households to eviction and repossession.

In my experience, default charges and fees are generally imposed when a person is down on his or her luck - ill, unemployed, going through a relationship breakdown or other life crisis. Moreover, they lead or contribute to a cycle of debt, poverty and homelessness.

From a legal perspective, the common law in Scotland and England has always pre-supposed that a contract is entered into freely by parties who have the choice to reach consensus on the terms of the contract.

The Unfair Terms in Consumer Contract Regulations were originally introduced in the UK in 1995 to reflect the reality that there was seldom any equality of arms in contracts between a consumer and a business. Most businesses employ standard 'take it or leave it' terms and conditions of contract.

Consider the most infamous of contractual charges: unauthorised bank overdraft charges. The average bank charge back in 1998 was £12. Eight years later that charge had increased by 558% to £67 - £39 for a letter, £28 for a monthly unauthorised fee and 30% APR unauthorised interest.

Clearly, there is now an urgent need for law reform to tackle excessive charging in consumer contracts. Existing protection is reactive and requires the customer to opt-in and traverse all of the difficulties associated with accessing civil justice and raising a court action.

The fact that the OFT's test case challenging the fairness of UK bank charges has been running now for almost two years without any resolution – and is likely to run for a lot longer with an impending House of Lords appeal - confirms the weakness in the present system.

There is a cogent case for amending current consumer law protection to require the imposition of any charge or fee to be proportionate to the cost of the missed payment, default or overdrawn sum as a matter of fairness.

Mohammad Sarwar’s Bill suggests that no charge or fee in a consumer contract should exceed 2.5% of the value of the transaction where there is a default or failure, or attempt to exceed an agreed overdraft.

To take a typical example. A worker’s wages drop to statutory sick pay due to illness. That week four direct debits are unpaid. The worker’s bank will impose £184 in charges, while her creditors will levy unpaid direct debit fees of £25 per item. She will face £284 of charges that week – the equivalent of one month’s statutory sick pay. Under the proposed Bill those charges could not exceed £20 in total.

Politicians cannot stand by and watch hardworking individuals and families in the UK suffer any longer. It’s time to put an end to rip-off Britain.

Wednesday, 22 April 2009

Preventing repossession

The announcement yesterday (21 April) that the UK Government's Mortgage Support Scheme is now in force with most lenders co-operating, and sub-primes coming on board, is the best news we've heard in a long time during this dark economic period.

The ability to defer up to 70% of a mortgage for two years will provide a vital respite which could save thousands of Scottish homes from being repossessed during the recession. Sadly, most Scots won't be able to enjoy this new scheme as repossession cases do not call in court and, unless you are proactive and instruct a solicitor, decree will pass against you automatically.

You will face homelessness long before you can sort out all of the paperwork. Community law centres and others have been warning the Scottish Government of the weaknesses in our system for the past 15 months, yet, incredibly, protection for homeowners has become weaker, not stronger.

For example, last month the Scottish Government restricted its Homeowner Support Scheme to homeowners in the cheapest of dwellings. Also excluded are those entitled to benefits for housing costs.

With all of these restrictions, I would be surprised if 15% of Scottish homeowners were eligible for any help under the Scottish Government's scheme. Yet the new UK Government scheme will cover 80% of UK homeowners.

However, help is hypothetical as legal representation is required to secure sufficient time to put solutions in place. Households in England and Wales are entitled to free court representation, so they can access the new UK scheme and other solutions. They also have more time to negotiate with their pre-action court protocol.

In Scotland, there is no free representation and even people on breadline benefits are expected to fund their own legal aid bills. There is no pre-action protocol either. The result is that Scottish homes are being needlessly repossessed. The Scottish Government has provided homeowners with a couple of fig leaves for protection against repossession. This has to change. When will we get the same protection that homeowners south of the border enjoy?

Tuesday, 14 April 2009

Monkey business

Science tells us that if you give a million chimpanzees a million typewriters they will eventually reproduce the entire works of William Shakespeare. Until they do so, they will definitely thrash out more workable housing policies than the Scottish Government.

In one fell swoop the Scottish Government has closed off access to its Home Owners' Support Fund for homeowners facing repossession in Scotland. In real terms over 1 million Scottish households have just been excluded from applying for help under the Mortgage to Rent or Shared Equity schemes.

In a bizarre twist of irony, Cabinet Secretary Nicola Sturgeon claimed on telly last week that the Scottish Government was 'far ahead of the game compared to south of the border' when it came to preventing needless repossessions.

She pointed to the £35m to be invested over the next couple of years in the flagship ‘Home Owners Support Fund’ – money which underpins the national Mortgage to Rent and Shared Equity schemes. But her safety-net claims have been exposed as a Lilliputian fig leaf.

Previously, almost anyone in serious mortgage trouble was entitled to apply to the Mortgage to Rent scheme for help so long as their home was not above the average price of properties in their locality. Locality was a flexible, undefined concept. But from last month the Scottish Government has introduced ‘local’ maximum property prices which are so ridiculous they exclude 75% of all owner-occupiers in Scotland.

For example, if you're a family facing homelessness in a three bedroom flat in Glasgow, East Renfrewshire or East Dunbartonshire you are now excluded from Scottish Government help unless your home is worth less than £105,000. The current average property prices in those local authority areas are £135,000, £199,000 and £206,000 respectively. And these rules apply to help under both the Mortgage to Rent Scheme and the new Shared Equity Scheme.

Govan Law Centre has a client in Pollok facing repossession who lives in a modest three bedroom house worth £150,000. The Home Owners' Support Fund is her only hope - a couple of weeks ago she would have got help under the Mortgage to Rent Scheme, but now she is excluded.

Most of our clients in Greater Govan and Greater Pollok are excluded under these incompetent rules and Nicola Sturgeon might want to explain to her constituents how they are now going to avoid homelessness during the recession?

The Cabinet Secretary has broken a lifeline for Scottish homeowners. I’m calling on the First Minister to remove these restrictions urgently so that no Scottish household will become homeless because of this incompetent policy change.