Tuesday, 25 April 2017

Where are we?


I thought I might just share some thoughts about where we are in the General Election campaign in Scotland.

Firstly, it is important to remember there are other elections first, the local elections on 4th May.

These will give us a much clearer picture than any opinion poll but I suspect they will only confirm what these polls are saying. That the Tories are on a surge north (and now elsewhere west) of the border. Only this time "the polls can't be trusted" won't wash as an excuse.

In the 4th May aftermath there will inevitably be last minute calls for Kez and Jez to go but there appears no sign either will. Kez's ability to hang on is a bit of a mystery to me. We are in a situation where despite the clear (slight) decline of the SNP and the speculation that they might lose seats to the Tories and the Libs, there is not a single seat in Scotland that Labour is tipped  (even wildly) to take off them. Yet the Leader of the Scottish Labour Party sails on oblivious, indeed apparently unconcerned. Perhaps she just assumes nobody else wants the job, and in advance of June 8th she might be right. But if she thinks she'll survive after that she is deluded.

In the UK contest I don't think we've even started to realise how bad things could be. Every so often something pops up on social media to remind people of McDonnell and Corbyn's past affiliations but generally, so far, this attack isn't coming from the Tories themselves. I think there is a reason for this. There remains a remote chance that if the local elections were even worse for Labour than has already been priced in, Corbyn might actually be forced to go. So, the Tories have reason not to press their advantage too soon. So far, Corbyn still persuades some voters that he is no worse than "nice but incompetent". The Tories will, I confidently predict, go all out to discredit that redeeming feature and nothing that Corbyn or his team have said so far indicates they have any strategy to deal with this. And that's before we even get started on the farce of "Labour supports a nuclear deterrent but our candidate for Prime Minister would never, ever use it."

But a lot of people still won't vote Tory in England & Wales, (many of whom are fervent Remainers) so I wouldn't be at all surprised if by two or three weeks out the narrative hasn't become "Will the Libs beat Labour in the popular vote?" Indeed I wouldn't be entirely surprised if that actually happened.

So, emerging narratives. If the Tories do well in Scotland and Labour implodes in the UK, it will have various consequentials for Scottish politics.

1. The answer to any challenge to the SNP will no longer be capable of being dealt with by just shouting TORY! (Red or otherwise). The Nats will have to engage with the Tories on policy grounds. They will struggle to do that while holding their coalition together because its clear a lot of Nats are far from inimical to power being moved out of Edinburgh, lower taxes, or Brexit.

2. The Tories will more generally be able to move the general discourse of Scottish politics to the right. There has been a baleful lack of debate in Scotland while Labour and the Nats have had a common interest (albeit for different reasons) not to challenge our complacent and flabby public sector. That will change.

3. If the Nats go backwards it won't just be whether they still say they'd still hold a second independence referendum. It will become whether they still really want one. No amount of "We're still (much) the biggest Party" in the early hours of 9th June will be capable of disguising that. And the clock to their 2020 Manifesto will have started ticking.

4. If the Libs beat or even get close to Labour in the UK result, post election political realignment there will become unstoppable. That will be particularly so if Corbyn attempts to hang on. This will also spill over to Scotland, particularly as here the Libs will almost certainly have more seats, if not votes, than us.

5. Speculation will start as to whether the Scottish Tories have a ceiling to their vote. Could Ruth Davidson actually become First Minister? and

6. If the Scottish voting patterns end up with Labour holding the balance of power between the Tories and the SNP what should we do? Actually, that's likely to be a question we have to answer on May 5th 2017 never mind May 2020. Anybody got any views as to what the answer ought to be? Small in number though we remain, I think that we might literally split on this issue alone.

So, cheery days.






Tuesday, 18 April 2017

May 2020.

I am writing this blog in my lunchtime and I'm not the fastest of typists so I might have to finish it between clients this afternoon.

But, in summary, the decision of Theresa May to call an early UK General Election means that the next Holyrood Election will be in May 2020 rather than May 2021 as would otherwise be the case.

The Scottish Parliament was meant to have a four year term and in 1999, 2003, 2007 and 2011 that's what happened.

But in 2011, the Westminster Parliament passed the Fixed-Term Parliaments Act essentially fixing the date of the Next UK General Election for May 2015. That would however have meant a Holyrood poll on the same date and,  for reasons I don't have time to go into here, there was a consensus against that. So, by virtue of s.4 of the 2011 Act, the date of the next Holyrood poll was moved to May 2016.

This was done on a one-off basis originally but there remained a view that the two elections should not clash, so when the Scotland Act 2016 was introduced it contained (in ss.4-10) provision that if a Holyrood and Westminster poll was to clash in future, the former would be moved.

The power to actually change the date lies with the Secretary of State but undertakings were given that he would respect the preference of the Scottish Government on whether to move the poll backwards or forwards. Prior to May 2016, Nicola Sturgeon indicated her preference for the former option.

BUT, although ss 4-10 of the 2016 Act were passed they have not been commenced. Even if they were commenced however, the power to adjust the four year statutory term would only be available if there was going to be a clash, which patently there isn't now going to be.

So its May 2020 for the next Holyrood poll.

Now, this is very important.

It has been clear from the outset that Sturgeon wanted the "next" referendum before the next Scottish Parliament election. The reason for that is quite clear. She fears the Parliament's pro independence majority might be lost at that poll. But, while suggesting her own preference for Autumn 2019, she was realistic enough to concede that it might have has to have been May 2020 for reasons connected to the negotiation of the terms of a s.30 and the inevitable time it would take to get a Bill through the Scottish Parliament.

Well it can't be May 2020 now. And the Tories have made it clear it won't be Autumn 2019.

So, there will only now be a second referendum if the SNP (and any allies) win the May 2020 elections on a clear mandate for a second vote. A mandate they fear they won't get. Don't take my word for that, ask Nicola Sturgeon.

Postscript.

Since I wrote this hurriedly at lunchtime, Professor James Chalmers of the University of Glasgow has entered this debate to suggest I am wrong and the Scottish Parliament has also claimed that the May 2021 date is preserved. I haven't seen anything in writing from the latter but am relying on what I've been told by political journalists who suggest they are following Professor Chalmers logic, so I'll assume that to be the case.

I accept absolutely that the Prof's only dog in this fight is that of correct statutory interpretation and that he is undoubtedly a more distinguished lawyer than me. I also concede that he relies on some legislation of which I was unaware at lunchtime. But I still think he (and if they have adopted his argument the Scottish Parliament Corporate Body) are wrong, albeit with regard to sections of the 2016 Scotland Act not yet commenced.

The Prof has pointed out that by virtue of an obscure piece of legislation, "The Scotland Act 1998 (Modification of Schedules 4 and 5)  Order 2015  the Scottish Parliament had, in 2015, been given the power to amend the date of the next Scottish Parliament Election. I readily concede I didn't know that, although the Prof himself was good enough to link to the Hansard debate in which it was clearly intended as a temporary measure. But while I might excuse myself from ignorance of an obscure Statutory Instrument the Prof also drew attention to The Scottish Election (Dates) Act 2016 of which I should have been aware earlier. For it uses the devolved competence of the 2015 Order to fix the date of the next Scottish Election as 6th May 2021.

But I don't think the Prof is interpreting things properly (ducks).

Because the 2015 Order was clearly intended as a temporary measure pending what became the Scotland Act 2016. And it says something quite different.

Section 2 of the Scotland Act 1998 (the founding Statute) says

    "The poll at subsequent ordinary general elections shall be held on the first Thursday in May in the fourth calendar year following that in which the previous ordinary general election was held, unless the day of the poll is determined by a proclamation under subsection (5)."

Section 5 of the Scotland Act 2016 amends that.

I've tried unsuccessfully formatting and reformatting this to get it on the page so here is the link http://www.legislation.gov.uk/ukpga/2016/11/section/5/enacted

In summary the section (as amended) now reads

"The poll at subsequent ordinary general elections shall be held on the first Thursday in May in the fourth calendar year following that in which the previous ordinary general election was held unless

(a) subsection (2A) prevents the poll being held on that day......"

Subsection 2A reads

"The poll shall not be held on the same day as the poll at

(a) a Parliamentary General Election......"

I readily admit I've cut out a lot of irrelevant text here for brevity (and clarity) but if you doubt me, feel free to look at it for yourself.

Now, sections 4-10 of the Scotland Act 2016 have not yet been commenced but when they are they will become the law of the land. And they will then dictate when the next Scottish Parliament election will be, notwithstanding any Holyrood legislation. For, for the avoidance of any doubt on the matter, section 10(7) of the Scotland Act 2016 specifically revokes "The Scotland Act 1998 (Modification of Schedules 4 and 5) Order 2015".

So, in summary, if Sections 4-10 of the Scotland Act 2016 are commenced, the next Scottish Parliament Election will be on the first Thursday in May 2020. I stand by that argument.




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Sunday, 16 April 2017

Off with the Cap!

It is always worse if you have first hand experience of a particularly cruel government policy.

My day to day work now is mainly in the area of family law and accordingly I regularly see people whose relationships have recently broken up.

A standard scenario is meeting a woman with children who has been working part time, in order to discharge child responsibilities, while her departed husband or partner worked full time. And her immediate concern is how she'll survive on a much reduced family income; pay her bills; feed her kids.

And for the last fifteen years plus one of my first pieces of advice has been to check her eligibility for Tax Credits. On any number of occasions this has led to a realisation that her financial position is not as bleak as it first appeared. Thanks for the advice regularly follows. Only my belief that politics has no place in professional life forbids the response "Don't thank me, thank Gordon Brown."

Tax Credits were one of the greatest successes of the last Labour Government. Between their introduction in 1998/99 and the Tories initial assault on them after 2012/13, they reduced the percentage of children living in poverty from 35% to 19%. And 65% of all Tax Credit recipients ARE WORKING! A much higher percentage still of those with children all aged five or over.

The value of Tax Credits has already been reduced, but the most recent restriction, from 6th April past, is the most outrageous. Unless already born, from that date Child Tax Credits will only be paid in respect of the first two children.

Now the stated logic of this policy is to discourage poor people from having children but that's an absurd logic. WE SHOULD BE ENCOURAGING PEOPLE TO HAVE CHILDREN!  The current birthrate for all women in the UK is 1.9 children. Think that through. Continuation of that trend will see the population fall. While, not only will we have fewer young people but, thanks to advances in medical science, we will have more old people. This is demographic madness. And if you are the sort of Tory who obsesses with immigration it is madder still. For the major reason we need these immigrants is that we do not have enough young people "of our own" to pick our crops, produce our goods or provide our basic public services.

But, the Tories might argue, we can't have "all these people" having children "the rest of us" have to pay for. They seize on the idea that there are "Welfare Queens" out there with teamless broods brought into this world, and then brought up within it, with a casual disregard for "conventional norms".

But this is nonsense! Sure there are a few people like this but the idea they are motivated by money ascribes to them a degree of calculation that belies everything else about the way they live their lives. And, anyway, their circumstance is already sanctioned by the benefit cap and even then, frankly, it is less than clear what anyone gains from making their children even poorer than they already are.

BUT THAT'S NOT EVEN THE POINT! For 68%, (68%!!!!) of those hit by the two child tax credit cap have the, hardly wholly irresponsible, number of three (three!!!!) children.

And, anyway, anyway, other than very much at the margins, if this idea is really motivated by the lunatic idea of discouraging children, IT WON'T WORK! For people generally have as many children as they think they can cope with. They don't sit down in advance with an abacus to calculate the financial consequences. And, as in the working example I provided above, they often bring children into the world without a thought for a moment that they might, one day, ever need to claim Tax Credits.

No, the crude reason the Tories are cutting Tax Credits is that they wish to cut public expenditure. They need to reduce the deficit and, being Tories, raising taxes is not a viable option. Anymore than, for electoral reasons, they would ever hit those most easily able to afford it, better off pensioners. So, instead, they intend to make already poor people even poorer and, on their own figures, by the time the policy works through, save "up to" £3.1 Billion per annum.

Now, on the face of it, Labour and the SNP are both equally opposed to this policy. Both Parties certainly voted against it in the Westminster Parliament.

Except we are both in opposition in the Westminster Parliament. But at Holyrood the SNP are in Government. And, since September 2016, the Holyrood Parliament has the power to reinstate these cuts. But, strangely, the SNP shows no inclination to use this power.

When I first raised this on Twitter, I was accused by no less than a SNP Member of Parliament of talking "mince" but, that tactic having failed, the Nats new objection suddenly was that if they did so they would either have to raise taxes or find the money from cutting elsewhere. Well, indeed. Isn't that what both our Parties are supposedly calling on the Tories to do at Westminster? One of us at least sincerely.

Instead the Nats have decided to work themselves into a faux frenzy over the so called "rape exemption", which is in reality a very minor and humane exception to what is an otherwise appalling policy. Insofar as I understand their supposed argument, it appears that they object to people claiming the exemption having to fill in (in confidence) a form that contains a number of personal questions. Well, here's something else from my professional experience. If you claim Criminal Injuries Compensation for being raped you have to fill in such a form. Is it the policy of anybody in any Party that rape victims should be denied such compensation to avoid that regrettable form filling necessity?

Frankly, this a crude distraction from the real scandal. The failure of the SNP to use the existing powers of the Scottish Parliament to relieve a crude attack on the poor. Because as always, the Nationalists social democratic mantle seldom survives much examination. For, again as always, they are not really interested in solutions, only in stoking grievance. For a flag.

So Labour should take the initiative here. Lay down a Holyrood motion condemning the Westminster policy but calling on the Scottish Government to act. Let's see how the Nats vote then.

Wednesday, 5 April 2017

From Hungary.

So, I am writing this on Tuesday from the terrace of Andi's parents' house on the outskirts of Budapest.

I won't be able to post it though until I'm back as, despite there being broadband internet, nobody can remember the password and the British (surely) genius who decided that it was a good idea to put that on the router doesn't seem to have extended his or her wisdom to Hungary.

I was therefore a bit worried when, connecting briefly to the outside world via my phone, it looked like we might be going to war with Spain. As Hungary is in traditional Hapsburg territory, I even feared momentarily that I might be interned.

Actually, internment itself would probably have been OK since it is a very pleasant 24 degrees here and I've always liked pork (pretty much the only meat anybody eats, albeit in infinite variety). But internment without access to the internet would have been intolerable. Although at least I wouldn't have to worry about seeing any spoilers for the Walking Dead series finale until a latter day Drake (not that one!) or Howard (more of a possibility) or Raleigh (Labour is big on Raleighs at the moment) had succeeded in securing my liberty. Firstly by the traditional burning of Cadiz and then seeing peace guaranteed by persuading Prince Harry that he must forgo the fair Meghan for the hand of the Spanish Infanta. Aged eight. Or Forty-eight. Or whatever. Who cares when the Nation's interest needs served?

However, war with Spain came to nothing, allowing the attention of the Royal Navy re-directed towards the National Trust. So I should be fine now if, on my return, I stay away from Culzean Castle.

As Chris Deerin points out today, the Country has gone mad. Or at least some of it has.

Andi's folks stay in the suburbs of Budapest, on the large Island of Csepel, where the Danube divides,in a very Scottish way, between the “big Danube” to the north and the “wee Danube” to the south. It is an astonishingly peaceful place, despite every single resident apparently owning a big dog. Except for those who own two big dogs. And sometimes some small dogs as well. Just to keep the big dogs company..

But at the centre of the island, nearly thirty years on, there is an air base, on prime land, which, although still used for light aircraft, can't be developed properly because, for the forty plus years prior, it was was operated by the Red Army, Who, on leaving, but even before leaving, simply dumped their unwanted diesel, paraffin and other chemicals into the soil. Making it a mammoth task now to clean that up.

Victor Orban, the political top dog here, is not my cup of tea. He is a firm believer in the superiority of Hungary and Hungarians over all and any other nation. A sort of central European Alex Salmond. And the principal opposition is worse, coupling all of the above with an open anti-semitism in a way that might make even Ken Livingstone blush.

But Hungary is still a very European Nation. The EU flag flies alongside the national tricolour and shield on just about every public building. Sometimes even outside supermarkets. There is no going back here. I wrote, while here before  about the Hungarian insistence on a hard external border to the EU, but as you negotiate the M0, Budapest's equivalent to the M25,you are struck by the signposting to Austria, Slovenia, The Czech Republic and Slovakia and the importance, ultimately, of maintaining Schengen access to each as you head off in whatever direction.

The idea, in some quarters at home, that the EU is a project about to collapse would be laughed at by the vast majority of Hungarians. Even here, in probably the most eurosceptical of all of the remaing 27. Because the EU means peace and significantly greater prosperity. And one day, if required, Hungary will find its own Macron to point out that adherence to liberal “western” values will always trump the alternative of returning to the status of a closed nation state, never mind a border land. Notwithstanding today's grandstanding by the Vizegrad 4.

So, the EU will go on. And, slowly but certainly, Britain will come to realise that declaring that we have no need for any allies at all on the Continent of Europe makes no more sense in the 21st Century than it had done for the previous five Centuries before.

For if, even at the height of Empire, Lord Salisbury concluded that self same thing, then surely Theresa May will eventually do so herself one day. If not, hopefully before it is too late, the electorate will do it for her.

Anyway, back in Hungary, they have had a relatively mild Winter. So the blossom is already on the Cherry Trees (white for sour cherry; red for sweet) and will surely be gone before the Lilac even first appears.

And I'm getting ready to go home.

From where I will finally post this blog.


Sunday, 26 March 2017

Upon Westminster Bridge



In March 2015, @andimecbandi and I had been together for a year and we decided to do something to "mark" the occasion (celebrating not really being a Scottish thing).

We looked at various options and in the end resolved there was no finer ( or easier) destination for a short weekend break than our own capital city, London.

We flew down after work on the Friday and back late on the Sunday, resolved to cram in as much as possible in the short time available.

Now, I've obviously been in London many times for matters related to my work or political commitments of various sorts but I hadn't been in London as a tourist since I was still at school. On the Saturday therefor we decided to do the Tourist full bhuna.

Setting off early from our Liverpool Street base we proceeded to Tower Bridge, then through the City to St Paul's. Onwards via Fleet Street to the Inns of Court, then Trafalgar Square; Admiralty Arch; The Mall; Buckingham Palace.

Refreshment taken, we then negotiated St James Park to reach Westminster Abbey and on to Parliament Square.

Finally up  Whitehall past the Cenotaph to Downing Street, at last boarding a Tube to retire to our hotel exhausted for a wee lie doon.

On the way, as tourists do, we took lots of photographs. One of which appears above. @andimecbandi upon Westminster Bridge.

It's not a great photograph, for the sun is directly behind me, but it was a photograph literally hundreds of people were trying to take of their own loved one or loved ones at exactly the same time. The Houses of Parliament, the most famous legislature in the entire world, viewed from one of the most famous bridges in the entire world, with one of the most famous rivers in the entire world also in shot.

It was of course at almost this exact spot that last Wednesday what was presumably meant to be a symbolic attack on this most visible display of our democratic life was launched. It failed. It lasted start to finish eighty two seconds before the attacker was shot dead in what was not a security failure, as some would suggest, but in surely what has to be classed as an unprecedented security success. Eighty two Seconds.

But of course, even in that eighty two seconds, three innocent civilians and one heroic Police Officer still lost their lives.

The next morning however, our Parliament was back. Appropriate tributes paid, democracy went on.

On the Sunday of our break we'd had enough of the "grand" sites of London so we headed in precisely the opposite direction, through the east end, via Petticoat Lane, and the streets and streets of open air clothes markets surrounding it, to eventually Brick Lane and its food.


It was as if you were transported to the modern day markets of Samarkand. People of every colour, culture and religion, a thousand languages being exchanged alongside the lingua franca of English. And the food! We came across a disused factory where it was possible to sample, at countless different stalls, street food from just about every country in the world.

Food served up by those originally hailing from wherever but now, altogether, Londoners. And on so many stalls, wee flags. Flags not just of the country of the food's origin but Union Flags as well. People proud of their own origins certainly but proud also now to be British.

Some times good things can come out of tragedy and I think last week might be one of these times. For in the aftermath of events it wasn't just Londoners who came together, the whole country did. In defence of our way of life in all its diversity; agreeing across the political divide with the defiant response not just of our Church of England Tory Prime Minister but also of our Muslim Labour Mayor of London.

And also in defence of our democracy. Sure, just like any political system it has its crooks, chancers and opportunists. But across the main Parties it has far more people like Tobias Ellwood MP, who ran towards the trouble, knowing not what might await, to give PC Palmer desperate medical assistance. Far, far more people like that.

In the end, in our own understated way, the whole thing made you proud, and grateful, to be British. Maybe we should all be that just a little more often.



Sunday, 19 March 2017

Spelling it out.

I wrote a mega blog on Friday and thank you for all the kind comments on Twitter and elsewhere.

But I've said enough for one weekend except to point out in what, in setting off,  I hope will be a very short blog, something that most people are missing.

There were two crucial things that happened on Thursday past.

Mrs May ruled out a second Referendum for "Now" but, at least as importantly, David Mundell said that the Westminster Government wouldn't even discuss the matter until after Brexit was complete.

Which means, for the hard of thinking, Mundell ruled out a second referendum before the 2021 Holyrood election.

From the SNP requesting a s.30 in January 2012 it took until December 2013 for the referendum legislation to be on the Statute Book. The first part of that process, agreeing the terms of a s.30,  has a timing largely controlled by the Westminster Government who can insist on "these terms or no terms" but the second, even if the Nats ultimately surrender entirely on the first, engages the process by which any contentious ordinary legislation takes about nine months to get through Holyrood. So, for a referendum in Autumn 2020, the last possible date pre May 2021, you'd need to introduce legislation no later than Autumn 2019. And you couldn't introduce legislation until you had the s.30. Which is not even going to be discussed until after March 2019. Anybody think the ball couldn't be run into the corner for six or seven months?

Kevin Pringle, one of the very brightest Nats, got this on this morning's Sunday Politics Scotland. The key thing for them now is a vote before May 2021, when they would otherwise need a fresh Holyrood mandate.

Now, the Nats might get that mandate in May 2021 but they'd need an express manifesto commitment. Which they were scared to seek in 2016 and indeed sought even only very much down the ticket, in 2011, when their manifesto said more about the Commonwealth Games than constitutional upheaval. Albeit that priority was changed once the votes were counted.

There are two problems for the SNP with this. The first is that it is quite difficult to get a Holyrood majority. They don't have one now, albeit they can rely on the current Greens on this issue. But the second is that they would have then to state expressly in their 2021 platform that they would  have a vote during the 2021 plus Parliament. Even if the polling on that platform was condemning them to defeat either at the election to follow or the Referendum itself.

Yet what can the SNP do about this? Nothing.

My Friday blog dealt with this but, to spell it out again. Sturgeon in September 2019? "These are outrageous conditions," Mundell: "Well no doubt the electorate will provide their verdict on that in just 18 months time".

Now, maybe this will all, in time, play out badly for my team. Maybe the Nats will win on an express manifesto commitment in 2021 and there will be another vote in 2023. Which maybe we will lose. Maybe. But only if the Nats can maintain the illusion in between that the different electoral priorities of West Aberdeenshire and North Lanarkshire can be obscured by a flag.

Anyway, I promised you a short blog. That's it.






Friday, 17 March 2017

Goldfish

It is a notorious observation that goldfish have such short memories that they do not realise they are in a bowl.

In the course of today I have begun to wonder if Scotland's political journalists might have a similar fault.

After the SNP, in 2011, won a clear and unambiguous victory on a manifesto commitment to holding an Independence Referendum, the question almost immediately arose as to whether such an enterprise was within the legislative competence of the Scottish Parliament.

The reasons for that were, on one view, quite straightforward. The constitutional structure of the Scottish Parliament under the Sotland Act 1998 proceeds on the basis of "universal competence", meaning that the Parliament can legislate in any area not "reserved" to the competence of Westminster alone. These  reserved matters are set out in Schedule 5 of the Act but at the very start of that Schedule, which runs to numerous headings, sections and sub-sections, at Part 1, Section 1, sub-section (b), the second substantive, reservation, ranking only behind the status of the Monarchy, provides that reserved to Westminster is

"(b) the Union of the Kingdoms of Scotland and England,"

Now, one view that could not have been clearer. But in 2011 until early 2012 there were those (including me!) who argued that based on the precedent of the 1952 Case McCormick v The Lord Advocate, the Scottish Courts might rule that once "re-constituted" the powers of the Scottish Parliament might not actually be constrained by its founding Westminster Statute. 

I won't now bother to rehearse that argument again because in short, on the overwhelming balance of legal opinion then,  including opinion from commentators not personally ill disposed to independence, it was lost. But more importantly, it was effectively conceded by the SNP Government in their 2012 White Paper "Your Scotland-Your Referendum". It said (at section 1,5) this:

1.5 A wide range of opinion has been expressed about whether or not the Scottish Parliament has the power to hold a referendum consulting the Scottish people about independence. The Scottish Government's February 2010 paper set out a referendum question asking whether the powers of the Scottish Parliament should be extended to enable independence to be achieved. The Scottish Parliament has the power to legislate for a referendum as long as that would not change any reserved law or relate to those aspects of the constitution which are reserved by the Scotland Act 1998. The referendum question proposed in 2010 was carefully phrased to comply with that requirement. Much independent legal opinion supports the Scottish Government's view.

For the avoidance of doubt the last sentence there is nonsense. While the whole thing  is carefully phrased, it essentially concedes that the legal advice behind the earlier consultation was that the Scottish Parliament did not have the legal competence to even consult on a straightforward proposition for Scottish Independence.

The solution in the 2012 Paper was in Sections 1.7 and 1.8. 

1.7 In a paper published on 10 January 2012 the UK Government stated its view that legislation providing for a referendum on independence - even on the basis proposed by the Scottish Government in 2010 - would be outside the existing powers of the Scottish Parliament[4]. The UK paper sets out two possible mechanisms to transfer the power to hold a referendum on independence: an Order in Council under Section 30 of the Scotland Act 1998, or an amendment to the Scotland Bill currently under consideration by the House of Lords. The UK paper goes on to seek views on a series of proposed conditions for the transfer of power, including a role for the Electoral Commission and limits on the timing, on the franchise (to exclude 16 and 17 year olds) and on the number of questions to be asked. It also seeks views on whether, as an alternative to the proposed transfer of power, the UK Parliament should itself legislate directly for a referendum.


1.8 The Scottish Government's preference is for a short, direct question about independence as set out in paragraph 1.10 below. It is ready to work with the UK Government to agree a clarification of the Scotland Act 1998 that would remove their doubts about the competence of the Scottish Parliament and put the referendum effectively beyond legal challenge by the UK Government or any other party. Its preference is for a Section 30 order, but whichever legislative approach were taken, any change to the definition of the Scottish Parliament's competence would require the consent of the Scottish Parliament as well as the UK Parliament[5].

These are weasel words. "We might have the ability to act unilaterally but we're going to ask for permission anyway". Aye right.

Now, I have always been of the view that even the 2012 White Paper was technically beyond the legal competence of the Scottish Government. They effectively accept that themselves in section 1.5 of their own paper.  But that paper was preceded by a concession by the UK Government that they would be open to a s.30 so only the most legally pedantic would ever have taken the point.

Over the last thirty six hours or so however the idea that some sort of "consultative" referendum might be possible has been given fresh legs and the goldfish appear to have fallen for it. This is possibly because its principal proponent is Mike Russell, the Minister behind the 2010 paper.

I don't dislike Mike Russell. While it might be damning with faint praise he is one of the brighter Nats. But he's not a lawyer. 

And for lawyers, since 2012 we've had the important 2017 Supreme Court case of R (ex parte (Gina) Miller) v The Secretary of State for exiting the European Union, in which the Scottish Government made an ill starred intervention. And were told, unanimously, that the powers of the Scottish Parliament do not extend beyond the provisions of The Scotland Act 1998. In that case it was in relation to the conduct of foreign relations but there would be no logical reason that would not also apply to "the Union of the Kingdom of Scotland and England".

So any attempt to hold a "consultative referendum" would pretty quickly be stopped in the courts. Not by "Westmonster" but by any individual Scottish citizen who wanted to enrich the lawyers they set to that task. "Touting" is of course professional misconduct so by writing this blog I have cup-tied myself for that task, 

But (postscript) even if it wasn't ruled ot legally! Think through the politics of this. My side wouldn't bother to turn up. We've had our legal and binding referendum and we won. 

So if the Nats wanted their own vanity exercise...... we'd just let them get on with it. Except that the winning post would be 2,001,926 (the votes we got last time) and more importantly the disaster threshold for them 1,617, 989 (the votes they got). 

Anybody think they'd get 1,617,989 again in a vote that didn't matter anyway? No, neither do I. Which is why it would be lunatic to embark on such an exercise. Like starting a sporting contest where only one side had a goal you could score in.  With the other side guaranteed, at worst,  a replay.

The Nats aren't stupid. Or at least not all of them are,

So this "We'll do......something if the Prime Minister doesn't listen" is nonsense. There is nothing they can do except wait. Simple as that. 

So, well done Theresa May. No, actually, well done Ruth Davidson.