Friday, 17 March 2017


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.


  1. Your legal advice is correct.
    Your insulting comments about your opponents detract from your article.
    The 2014 outcome was clear and should be respected.
    It is of dubious merit to argue that it may be superceded by reference to one of numerous manifesto commitments of the successful subsequent SNP Holyrood campaign.
    A second referendum is justifiable by a material change of circumstances, the best measure of which is a very substantial increase ( and majority ) of voters who want independence, which has not occurred.
    It was opportunistic of (1) Unionists to argue that there could be no further referendum for a generation, and (2) Nationalists to argue that the first outcome was predicated on fulfilment of a promise to deliver a "remain" EC outcome. In each case, it was not within the gift of the other side in 2014, to give any undertaking. In each case the once in a generation/ vote no to stay in EC was a prediction, nothing more.

    1. A. The latest Holyrood campaign was not successful, as it lost the SNP its overall majority.
      B.There has been no material change in circumstances. It's not for the minority SNP Govt to be final arbiters of that.
      C. It was the Nationalists who argued both (1) and (2) above, prior to 2014.

  2. "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."

    This conference (and others) is when the stupid ones get strung along by the not-stupid ones - telling them that the sunlit uplands of indyre2 and then Indy (obviously) is at or over the next horizon.
    I'm sure they will enjoy the ride they're being taken for, but it's just a game being played at Scotland's expense.

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