There had seemed to be a consensus at the beginning of last week that whether the Scottish Parliament could competently call an Independence Referendum involved a divide between constitutionalists (i.e. lawyers) and the insurrectionists (i.e. the SNP).
Nothing wrong with being an insurrectionist. Most of my heroes: Danton, Garibaldi, Lenin, Mandela belonged to their ranks. But it has to be conceded that they were in insurrection against regimes that were not, exactly, representative of popular opinion in the first place.
However, let’s be honest, Scotland is not in an insurrectionist mood.
If you travel in central Italy, you encounter from town to town, plaques which announce the result, locally, of the various referenda that took place around 1860 as to whether the local citizens wished to be part of a united Italy.
Such votes must have involved the expenditure of both time and money by those involved in their organisation. And the local bureaucrats, who organised them, with the occasional exception, must have done so in the knowledge that they were acting contrary to the wishes of those who paid their wages. They didn’t care however for they were seized with the cause of Italy. As were the citizens who then chose, voluntarily, to participate in these votes.
Nobody is seized with the cause of Scotland to that extent. If told by a Court, never mind threatened with military force, that they were not to proceed, not just some, but all, of Scotland’s Returning Officers would obey that injunction. And, that aside, no body would turn up to such a poll.
So Eck and his troops, no matter in what they might be inclined think after four pints of lager, a late night showing of Braveheart and a collective, pre retiral, singalong of Scots Wha Hae, realise that they have to accept the rules of normal, 21st Century, democratic, discourse.
The vote can only take place if it’s legal and it is only legal if the Courts say it is. Not, for the avoidance of any doubt, the Supreme Court. Simply the Scottish Courts, a point on which our media are so hypnotised by Eck, they have failed to notice.
Now, at this point various Nationalist partisans will emerge out of the cybersphere to assert the sovereignty of the Scottish People. They are right, of course, both in theory and in ultimate practice. If the SNP somehow managed to organise a referendum in which a clear majority of the Scottish people turned up and expressed a desire for independence, then that would have to follow.
Only they can’t. Not just secure such a majority. Even organise such a Referendum in the first place.
And nobody, and here I mean nobody other than 4 a.m. correspondents on the Scotsman Web page, thinks that sovereignty of the Scottish People and sovereignty of the Scottish Parliament in any way equate.
So Eck needs legal clearance for his Referendum, assuming of course he ever wants it to take place, (This, regular readers will know, is something I more than doubt.)
The legal opinion, on the record and publicly, that holding an Independence Referendum is outwith the legal competence of the Scottish Parliament is overwhelming. It now includes even me, who for a long time held out on the other side in loyalty to a misplaced faith in McCormick v The Lord Advocate.
The best Eck has been able to do in response is to assert that there (remain) any numbers of lawyers on his side. Asked to name them he has failed to come up with a single one, not excluding his own Law Officers and the two eminent lawyers in his own Cabinet.
So he has been left relying on unnamed supporters and a textbook. Himsworth and O’Neill: Scotland’s Constitution Law and Practice.
Now here I must depart on a number of confessions.
Constitutional Law is not how I make a living. I possess any number of books on personal injury law; family law; criminal law. Even a number of more or less current editions. Himsworth and O’Neill is not however a textbook I have in my possession. When I was at University the standard textbook was S.A. De Smith’s Constitutional and Administrative Law. Written in the most wonderful English, it was like Paradise Lost, only for lawyers. It is, nonetheless, I accept, now more than thirty years old. So, I suppose, it is no surprise there is a more modern text. And Himsworth and O’Neill is, apparently, it.
Even after I was aware of their publication, I thought I had absolutely no idea who Himsworth and O’Neill actually were. A bit like Renton and Brown. (lawyers’ joke). But actually I do know who O’Neill is.
All the really clever women in Scotland are wee. Wee Nicola. Wee Wendy. Wee Lucy Adams. Wee Christine O’Neill. For it is the latter who is the O’Neill. And she is probably the cleverest of the lot.
Now, all lawyers trade on the basis that they personally are the absolutely best lawyer in Scotland and, indeed, I would happily maintain that if you were on a JP Court Breach of the Peace, you’d be much better with me than any of the Big Firm lawyers. If however you had a public law point to be argued in the Supreme Court, and I was unavailable, then you could not do better than wee Christine. In any legal firm in Scotland.
So, if Christine O’Neill thought that Eck’s Referendum was clearly within the competence of the Scottish Parliament that might give even me cause for reflection.
Only she doesn’t.
That's all. Happy new week.