I wrote yesterday for Scotland on Sunday about the legislative competence of an Independence referendum being legislated for in the Scottish Parliament.here.
I just want to follow that up a little but first to acknowledge the debt I owe to (or intellectual theft I ought to admit from) Love & Garbage here and here and the Peat Worrier here .
There is a commentary on the piece on the Scotland on Sunday site which I want to comment on as it helps me develop my own argument, so I set the comment itself out in full.
One of the advantages of this being my blog is that I can choose to insert my comments to my own best advantage. A bit like St Jerome in another context
"So Ian Smart advised Wendy to "bring it on" even though a referendum was illegal". I didn't say it was illegal. I would never advise anybody to do anything illegal. I'm a lawyer! I said that we were aware of the vires issues but had our own strategy to deal with that if required. The whole point is that apparently the Scottish Government do not have a fall back strategy and don't apparently care. "He and the team around him was unsure that such a move was within the legislative competence of the devolved parliament. But surely he knew that in 1994 Labour-run Strathclyde Region held a referendum into water privatisation - a policy being put forward by the Tory government of the day at Westminster. This referendum delivered a massive NO vote to the Tory policy and so it was not brought forward in Scotland. A local authority, it seems, has greater power than our current parliament. An opposition party was able to hold a referendum on a specific issue of Government policy and affect change". This was, until recently my own, legal view. I've changed my opinion because of the contrary weight of much more eminent legal views. I can't just ignore that. Neither can the SNP. "You know when a lifelong Labour supporter starts upholding the rule of the Crown in Parliament that something has gone wrong in Labour's ranks. A party that once thought of themselves as socialists are now giving a good impression of being Unionists and Royalists". I wrote this article wearing two hats. I'm not defending the concept of the ultimate authority of the Crown in Parliament, I'm simply pointing out that it will be the Law applied by the Courts, whether I like it or not. "And this before they even choose their leader and their future strategy. Or has it already been chosen for the future incumbent? The notion that the people are sovereign was, of course, brought up by Labour and the Lib Dems in the 1980s in the Claim of Right. It claimed: "We, gathered as the Constitutional Convention, do hereby acknowledge the sovereign right of the Scottish people to determine the form of government best suited to their needs, and do hereby declare that in all our actions and deliberations their interests shall be paramount." Labour signed up to that. The Lib Dems signed up to that. It seems still a good democratic basis for modern Parliament - that the people are sovereign, not the crown". I agree! The point is not my view but that of Lord Hope and the late Lord Rodger. In my opinion, Whaley v Watson was a huge missed opportunity but one of the reasons it was missed was because Roseanna, then the SNP Justice spokesman welcomed the decision on the basis that she was opposed to any absolute parliamentary sovereignty, Scottish or British. You can't have your cake and eat it "Ian Smart now wants us to believe that Labour have abandoned their principled stance on the sovereignty of the people because that particular democratic stance is a "reserved issue". We've not abandoned it, we just recognise that it is not the view of the Courts and that this won't change without a revolution. And we have never been very keen on revolutions."No more are Labour the party of democratic struggle but are instead an agent of the establishment at Westminster. There must be many in their ranks who find this galling. If the Labour-run Strathclyde region could hold a referendum against the sitting Westminster government's policy on water privatisation; if the Labour party and Lib Dems could sign up to a Claim of Right that said the people were sovereign; then I'm sure we can carry on with our indicative referendum on independence. And the only schism that I see at present is the one the Labour party are feverishly trying to keep down. How long will the supporters of devo-max toe the Unionist line?" This issue has got nothing to do with Devo-Max. Devo-Max would still be Devo; an agreed division of powers between Holyrrood and Westminster. That's one of the reasons why there is no point in having a Devo Max question. It cannot be acheived unilaterally. Unlike, dare I concede it, Independence.
Why however is any of this important?
The SNP are not an insurrectionist Party, any more than is the Labour Party. They choose to operate within the rule of law. There is therefor no question of them simply firing ahead with a referendum if such an initiative is declared ultra vires. In the absence of proper legal authority they would anyway be unable to instruct or secure the voluntary co-operation of the thousands of returning officers, polling and counting staff or police officers required to conduct a referendum.
So, if there is no power under the Scotland Act to hold a Referendum. And to be no request to Westminster to amend the 1998 Act or to legislate for a Referendum directly, then there is going to be no Referendum. I think the Scottish Government know that. I repeat, as I have been for months, that this is deliberate.
If they would just concede that publicly: that they can't, no matter how regrettably for them, win an Independence vote or, better still, concede that, as they clearly almost did when flirting with Independence-lite, that full "Independence" is an illusory concept anyway then maybe we could all sit down and discuss possible improvements to Calman. A start might involve the concession by them that you can assign but not devolve VAT under European Union Law and that, in a unitary State,differential Corporation Tax is a non-starter. A starting point for us that a devolved benefits system, on the other hand, would be a meaningful tool of meso-economic policy and has got to be worth looking at.
Both sides are however trapped by their history so I accept that none of that is going to happen.
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