What is a new Party for?

Let me go over; that the men of Gilead said unto him, Art thou an Ephraimite? If he said, Nay; Then said they unto him, Say now Shibboleth: and he said Sibboleth: for he could not frame to pronounce it right. Then they took him, and slew him at the passages of Jordan.

(Judges, Chapter 12)

A shibboleth is a splendid way of identifying your enemies. But it has little to recommend it as a way of conducting first-past-the-post-politics. Why single out and alienate those not of your tribe?

I ask because it has become a practice of many Grand Men of the Left. The frequent epithets: “Blairites,” “neoliberals”. They are so protean, so bereft of content, as to shrink to little thing more than a desire to articulate a loathing of some other.

It’s foolish politics. Bad enough to hate Conservatives who, like it or not, form a large part of the voting public. But also, deliberately, to alienate those who are not your political enemies? When last did Left Labour harvest so rich a bounty of votes that it could afford to leave some lying on the ground?

The latest iteration – the spat slur “centrist” – illustrates the point well. What might cause you to highlight your extremism and call it virtue? To choose to forego a broad appeal for a narrow one is, for a political party, to take a silk purse and fashion a sow’s ear.

Ultimately these are questions for those in the habit. For the rest of us, it’s enough to remember that we can succeed only by avoiding the trap ourselves.

Nick Clegg’s disastrous pitch “We will bring a heart to a Conservative government and a brain to a Labour one” ended the LibDems as a political force. A new Party must be more than ‘not them’. It is only when we say who we are and what we are for that the electorate can ask itself: ‘are they for me,’ ‘am I for this’?

Brexit is not enough. Brexit will not be the last crisis the United Kingdom faces. An ageing population, the forces of globalisation, the concentration of wealth, intergenerational fairness, the evaporation of trust in politicians, a capitalism that does not serve the people, climate change: unless a Party can speak of these issues, it will not win, and it will not deserve, the trust of the electorate. But win trust on them and perhaps you will be heard on Brexit too.

Over the coming days and weeks I will offer some thoughts on what a new Party should offer, and be. I hope others will too – here, or elsewhere.

Let those who want to, with their shibboleths, divide. A new Party must with ideas unite.

 

 

A short note on tax law for Rangers and Celtic fans

I write to explain a point of law that has occupied much of my twitter feed for the last couple of days. It may help to say that I am a Queen’s Counsel specialising in tax law. And I have no commercial or personal connection to Rangers (I use that name in a vernaculous rather than a legal sense) or its successor entities or (as far as I am aware) anyone connected with the club or those entities.

I have said that it is not accurate to describe Rangers’ use of EBTs as “illegal” or “unlawful”. And here is why.

You might think about the purpose of tax law as being to draw lines in the sand: fall on one side of the line and your liability will be (lower) x; fall on the other side and it will be (higher) y. Rangers entered into certain transactions which they hoped and (I understand) expected would attract liability x but which the Supreme Court decided attracted liability y. It is not “illegal” or “unlawful” to attract a higher liability than you want. And nor is it illegal or unlawful to transact to try and attract liability x but to fail and, nevertheless, to attract liability y.

We self-assess our liability to tax. Putting it another way, HMRC ask us questions in a self-assessment form, we answer them, and those answers have as their consequence that we owe a particular sum in tax. We also promise HMRC that we believe the answers are right.

If we give HMRC answers that lead to the conclusion that we owe x in tax and a court later says that our answers were wrong and we owe y in tax that does not establish, on its own, that we have behaved unlawfully or illegally. It is not unlawful or illegal to make an honest mistake.

If, in completing the self-assessment form, we gave answers that we did not believe to be right, we would have behaved unlawfully or illegally. But I am not aware of any evidence that Rangers gave answers in its self-assessment form that it did not believe to be right. And nor, so far as I am aware, is this an allegation that HMRC has advanced.

What about a situation where Rangers gave misleading answers to HMRC outside the self-assessment form? Certainly it would be very poor behaviour. And I can imagine circumstances in which this might be unlawful. But, on its own, this fact – if fact it is – does not enable the conclusion to be drawn that Rangers has broken any law.

Labour’s Hard Brexit

Some in Labour believe that the EU is a trojan horse wherein neoliberal values enter and lay waste to our socialist paradise.

Never mind that the UK is to the right of the EU. Never mind that that the world has changed since the 1960s but that belief has not. Never mind that the EU is a safeguard against the values of the Hard Right who fought and funded Brexit. Never mind that under the microscope of evidence the belief shrivels and dies.

Nevertheless. For that belief, Labour’s leadership will sacrifice the prospect of remaining in the EU, the opportunity to deliver a better Brexit in the Single Market, and the wishes of Labour’s membership.

And it does so believing that it will have no price to pay at the ballot box in 2022. Because by then Brexit will be done and you will have forgotten Labour’s betrayal.

Would you like to say to Labour, ‘I will not forget? Deliver a Brexit outside the Single Market and come what may I will not vote for you?

‘I will abstain. Or I will vote for an alternative. But in no world will I vote for you.’

It is important. The Tory Party is divided on Brexit. A Labour Party for the country – for the country and not an ideological relic – would split the Tories. Labour could deliver a better Brexit – or none at all.

Would you support a campaign? Would you publicly pledge: betray my future, deliver a Hard Brexit, and I will not vote for you?

Please vote in this poll:

 

 

A short response to Owen Jones

Here’s Owen Jones on why he “accepts the EU referendum result.” It’s a good piece, there is much to agree with.

But it is important to be clear on what “accepting the EU referendum result” actually means. Clearer than he is.

The result does dictate that that we leave the EU. It dictates that unless public opinion decisively turns. And that is why I have consistently said I would have voted to trigger Article 50.

But although the result was that we should leave the EU the result told us little about what that means. Theresa May took over six months to decide she wanted to leave the Single Market. And longer still to decide she wanted to leave the Customs Union. These were her choices. There are countries outside the EU but inside the Single Market and it is likely that the UK could leave the EU but remain in the Customs Union.

They are incredibly important choices for the future of our country. They were not dictated by the Referendum. They are choices made by our political leaders. If our leaders pretend they are dictates of the Referendum our leaders lie to us.

I wish Owen – writing on a day when Jeremy Corbyn pretended that leaving the EU meant we had to leave the Single Market – had not ignored these choices. What do you say to that pretence, Owen? What do you say to the choices Corbyn has made? And what do you say to the huge majority of Labour voters who disagree with them? What do you say to the majority of the electorate who would not sacrifice their economic health to restrict free movement?

There are other criticisms too. Perhaps the most important is this.

It demeans us to pretend the risks to democracy are one way. To pretend they run from ignoring the result but not from delivering it. To pretend it is without risk to democracy to promise there would be no downside to Brexit and then deliver inflation and falling real wages, weak economic growth or recession, disinvestment and prospective joblessness, weakened public finances with jeopardy to the NHS, a Hard Border in Ireland and the list goes on.

If your intention is to protect democracy you seek a path that acknowledges and limits these downsides. You do not pretend that the future of democracy involves giving the electorate what it was persuaded to vote for and giving it to them hard.

Finally, as I said above, the Referendum result is that we should have Brexit unless public opinion decisively turns. We must listen. If the electorate comes to think that what it wanted from Brexit it will not get from Brexit it must be heard. 

This is the only control on the dishonest conduct of a Referendum that our politics can offer. In a General Election you kick out a Government that breaks its Manifesto promises. But if the sanctity of a Referendum result survives both the lies told to deliver it and a public coming to understand it had been misled we have no functioning democracy at all.

So we must hope that Labour delivers its Manifesto promise on Parliament having a meaningful vote on the Final Deal. 

Owen was silent on this promise yesterday but to live the values his article espoused he must be vocal on it tomorrow. And Labour will not be able to deliver on that promise unless it amends Clause 1(1) of the Repeal Bill in the Autumn. Let us hope Labour, and Owen, protects democracy by fighting to deliver its Manifesto pledge.

Uber – a new front

Beleaguered regular readers will recall the Good Law Project’s ongoing High Court dispute with Uber in relation to its tax avoidance. You can see the latest briefing here.

Earlier today, I opened up a new front in that dispute. It’s important, but to understand it, you’ll need a short lesson in VAT.

Pay attention at the back.

Assume you’re registered for VAT. When you sell something for 100 you actually charge your customer 120 including VAT. Tax lawyers call the extra 20 your output tax. Now, assume that to make the thing worth 100 you have to buy stuff worth 70. Your supplier (if also registered for VAT) will also charge you an extra 20% so you’ll end up paying 84. The extra 14 is called your input tax. (Of course, for your supplier that 14 is a tax on its sales and so, for it, it is output tax).

Then, every so often, you pay to HMRC the difference between all of the 20s you’ve charged and all the 14s you’ve paid. On all the value you’ve added – hence “value added tax”.

Because the 14s reduce the amount of money you have to hand over to it, HMRC obliges you to hold good evidence that you’ve paid those 14s. They require you to hold a VAT invoice from your supplier. But they also recognise that sometimes it might be pretty clear that you’ve paid those 14s even though you don’t hold an invoice. And so they retain a discretion to allow a claim for a 14 even without an invoice.

Now, I say I took an Uber and that I am entitled to recover VAT on the cost of that journey. But I don’t have a VAT invoice because Uber won’t give me one. My claim that it must is the subject of the High Court case mentioned above.

But I can ask HMRC to exercise its discretion to allow me to claim the £1.06 of input tax I say I paid to Uber even without a VAT receipt. And earlier today I did. You can read my letter here HMRCInputTaxLetter.

Now, why is that important?

Well, if HMRC decides to allow my claim it will be accepting that I have paid £1.06 input tax to Uber and, implicitly, that it has to collect that £1.06 from Uber. And if that is true for my £1.06 it will also be so for every other £1.06 Uber has ever charged.

And if HMRC decides to refuse my claim I could have the opportunity to appeal against that rejection and contend that, contrary to its decision, I have paid input tax to Uber. And if I won that appeal the tribunal would be deciding that Uber has charged VAT and, implicitly, has to pay that VAT to HMRC. Along with all the other VAT Uber has charged.

And that appeal would be heard before the First-tier Tribunal (Tax Chamber). I would be the Appellant, HMRC would be the Respondent and Uber would be grumbling in the back of the room. And, unlike in the High Court, in the Tax Chamber the loser doesn’t have to pay the winners’ costs.

The (missing) Conservative Party Manifesto 2017

Who knows why the Conservative Party has deleted its Manifesto?

Capture

Surely not because they do not wish to be held to the promises they made to the electorate only a few short weeks ago? Surely?

Fortunately I have saved a copy. Just click here Manifesto2017.

***

Note: What the Conservative Party can take down, the Conservative Party can put back up again. Well, on its website anyway. And the Manifesto, which had been removed, is now back.

But as to which of the promises they made to the electorate in that document they still plan to keep – and which they plan to break – time alone will tell…

 

Grenfell Disaster Relief Funds

However angry we feel about apparent inaction before the Grenfell Tower disaster it is hard not to feel humbled by the response since. The streets around the Tower yesterday were filled with people donating their time – and also the result of many thousands of generous donations of clothes and household goods and food.

And the donations continue to pile up in the many crowd-funding sites.

Of the many challenges ahead, one is how to distribute those donations? How do you ensure they go to the right people? How do you match the need for speedy distribution of money to those in need with the need to ensure the money ends up in the right hands? This poses real challenges for even large organisations – but experience tells us it can be a cause of real concern to individuals whose fundraising efforts have raised, sometimes, very substantial sums of money indeed.

It also poses challenges for the crowd funding sites themselves. Whatever protocols they have in place there are reputational risks if those monies are misused.

To that end, I spoke to James Kessler QC yesterday and asked him whether he would be prepared to draft a trust deed. You might think of a trust as being a kind of strict legal guarantee that monies will only be used for the purposes of the trust.

This morning he forwarded to me a Deed and a Note on that Deed.

His Note can be seen here: GrenfellNotePDF. And the Deed can be seen here: GrenfellTrustPDF.

A few points on the Deed:

(1) I am in discussions with one of the major crowdfunding sites which is supportive of this initiative. I hope to be able to say which site later today.

(2) If that site is able to support the initiative we may also ask it to set up a page enabling donations to be made directly to the trust.

(3) The initial trustees – for the sake of speed – will be myself and PJ Kirby QC. Although there is provision in the Deed (as is normal) for professional trustees to be paid, neither I nor PJ will take any payment.

(4) Obviously it is desirable that the Trustees include key community stakeholders. And, should the Trust be taken up we will look to appoint them as additions to or replacements for PJ and myself.

(5) If you are someone who has crowdfunded and would like the trust to administer the monies you have raised, please write to me at info@goodlawproject.org. If you do ask the trust to administer those monies we will obviously have regard to the purposes for which you raised those monies and how you would like them to be distributed. We cannot agree to be bound by your views as to how they should be distributed.

(6) We would especially like to hear from people who have experience of establishing and administering such trust funds, especially if you have immediate capacity. If your situation is such that you need to be paid, please state that too. Please contact us at info@goodlawproject.org with a short CV.

(7) If you are a crowdfunding site that would like to avail yourself of this facility to help your fundraisers please also let us know.

It is my intention that this project going forward will be hosted at http://www.goodlawproject.org. When it is ‘up’ there, I will remove it from here.