In The Huff

I've not been blogging as I'm working on my magnum opus Devo Max Scheme. Watch this Space.

I went however to the Jim Wallace Speech yesterday. Free CPD (lawyer's joke). The Herald asked me to blog on the event but then didn't publish it. So I'm in the huff. Here it is anyway. My first ever attempt at reportage. Eat your heart out Woodward and Bernstein.

At the Ancient University of Glasgow this evening, gathered a stellar audience anxious to feast on the pearls of wisdom and insight likely to be offered by that almost legendary figure, Lord Wallace of Thankerness, Advocate General of (all) Scotland.

Top lawyers; not quite such top lawyers, and would be top lawyers of the future assembled in the company of a few miserable specimens of humanity who were not lawyers at all, to hear a  definitive assessment of whether the Parliament of one of our (not quite so) ancient nations could legitimately block the Parliament of our other, even more ancient nation, from conducting a popular plebiscite on what is quaintly known as “Independence”.

I am sure I speak for many of the assembled company when I say that it would be altogether preferable if these matters were left entirely to the lawyers. Regrettably, modern mores demands a wider accountability, or so we’re told.

Nonetheless, the event itself did not disappoint, excepting the interventions of some of the top lawyers of the future who appeared to be unaware of the distinction between the sovereignty of the Scottish people and the sovereignty of the Scottish Parliament. Or, indeed, who in one case, seemed ignorant of the provisions of the Peace of Westphalia. As for the interventions of the laity, the less said the better.

Lord Wallace covered familiar territory: Whaley v Watson; AXA Insurance v The Scottish Ministers; Martin and Miller v HMA . Only someone unfamiliar with modern Supreme Court Jurisprudence would have learned anything new. And few in the room fell into that category.

Nonetheless, the real interest lay not with those who spoke from the floor but those present who kept their own counsel but who furiously took notes in anticipation of their potential role as actual,  rather than academic or (worse still) internet gladiators in the fight that might yet be to come. For, if you knew the audience, the gladiators were all in this preliminary arena.

And yet the most interesting contribution from the floor? From Alan Dewar QC: “This should not be decided by the Courts, the politicians need to sort it out.

What kind of talk is that! Some of us have a living to make.

A great woman passeth

Janey Buchan is dead

Norman Buchan once said to me that you can't be sure that you are an atheist unless you have survived seeing Orvieto Cathedral.

Janey shared that scepticism about religion. Lots and lots of time I thought she was wrong: about the European Union; about devolution; about the unchallenged virtue of the State of Israel. Tonight, however, on that biggest question of all, I hope she was most wrong of all.

Although if she is sitting now in the company of St Mungo, St Patrick and St Vincent de Paul I'm sure she will be asserting almost immediately that they are a crowd of right wing bastards.

It is almost impossible to value the contribution of Janey and Norman Buchan to the Scottish Left. No, it is impossible to value.

Those of us who were fortunate enough to enjoy their hospitality remember a home.............I was going to say a home of whatever, but actually a home is enough in itself.

I have never seen a house with more books. Or experienced a place with more diverse company. And the only risk of being thrown out would have come with the assertion that "I don't want an argument".

It was a place of argument, as much as it was a place of food and drink and music and of, yes, sanctuary.

Wee Norrie was, at least, a bit cogniscant of  the compromises supposedly neccessary to make your way in modern politics but Janey never was.

The dialectic was everything.  Marx, Engels. Lenin, Trotsky, Luxembourg, Leibnicht, Gramsci but never, ever Stalin echoed across the West End into the small hours. Night, after night, after night.

And the music. Folk music, the workers music. Not just Woody Guthrie and Pete Seeger; Scottish Ballads and songs about the struggles of working people of diverse type;  international songs about freedom from oppression in Countries (shame on us) we had barely heard of. And, just occasionally, Verdi or Bellini to remind you that sometimes everyone was due a moment's release from the struggle.

Grief has two dimensions. Who you have lost but also what you have lost.

So I finish with a quotation and a song. No, two songs.

Here's the quotation

http://www.blupete.com/Literature/Poetry/Psalm.htm

And here are the two songs

First for this time

http://www.youtube.com/watch?v=g5KnYADCSms

Then for all time

http://www.youtube.com/watch?v=m7PrVtZAG4M&feature=related

Who are Himsworth and O'Neill?

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, 21^st 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.

One.

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.

Two.

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.

Three.

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.

Advice Rejected

I have bought an awful lot of Council Houses. And I’ve wound a lot of modest estates that include British Telecom or British Gas or Scottish Power Shares.

Being a solicitor involves a variety of different activities. Some worthy but poorly rewarded, such as fighting repossessions or defending the innocent, others reasonably lucrative but, frankly, boring, like buying houses or administering executries.

The one thing this diverse experience does give you however is a view of the world.

It is simply nonsense that Scotland rejected Thatcherism in its entirety. Like we do in respect of so many other parts of British life, we bought into the bits we liked while claiming we wanted nothing to do with, indeed deplored, the rest of the package.

Ten days after Labour’s triumph in 1997 I wrote in Tribune about where the Scottish Tories had gone wrong under Thatcherism. Interestingly, it was this emphasis on the need to recognise the national dimension in Scottish politics that cursed my ambition in Labour politics before and since. But that is, nonetheless, where the Scottish Tories went wrong then and, among other ways, where Labour has gone wrong since.

It had little or nothing to do with the naked class politics that led them to be equally hated in working class communities from South Yorkshire to South Wales to South Lanarkshire. These people, my people, were never going to vote for them. We hadn’t had any more time for Ted Heath!

No, the Tories, despite heroic effort from the likes of George Younger, simply didn’t realise that Scotland needed to be respected and recognised as a bit different. And, above all, paid attention to.

Well, now they are paying attention. Good.

There is a stupidity in allowing your opponents to frame the terms of political discourse. Over the recent period we are constantly bombarded by SNP warnings that if Labour campaigns alongside the Tories for a No vote, we will be making a serious error. Most recently by the First Minister today.

Well, firstly, if I, as a life long Labour man thought the SNP, or indeed the Tories, were about to make a serious error, then the last thing I would do would be to rush out to warn them off it. More importantly however such “advice” seeks, with a certain constituency, to frame the Independence debate in left/right terms.

This simply won’t wash. For the avoidance of any doubt, while George Osborne is in favour of lower corporate taxation rates than I would like, he’s still for considerably higher rates than John Swinney or Alex Salmond. While the initial Tory proposals on public sector pensions were deplorable, they were on any view more progressive than any of the four options offered by the SNP. While the Tories were too lax (as Labour was) on pre-crash Bank regulation, they were still for greater regulation than that proposed by wee Eck for his former employers at RBS.

Sure, on other issues, the SNP have a more progressive aspect. Indeed on criminal justice policy, at least, they are to the left of Labour. The point is that you cannot frame the question of Scottish Independence in left/right terms.

And the other point is that by somehow equating permanent Independence with temporary Tory Government and spurning both equally we, the Labour Party, risk a very long term error.  We can always vote the Tories out.

So, whether we campaign alongside the Tories becomes simply a question of what gains us best tactical advantage.

And the obvious answer is that of course it does.

Division is the mother of confusion.

There is no confusion among the devolutionist forces. Independence would be a disaster for Scotland. That is a united opinion so why should it not be the basis for a united campaign?

And, more importantly still, if we can frame the debate as being between, on the one hand, all reasonable opinion, left and right and, on the other, those who have perhaps seen Braveheart  once too often, then that, surely, can only be in our own interests.

So, Eck, thanks for the advice, but I don’t think we’ll be taking it.

Anyway, we need to develop a working relationship with the Tories. Assuming the Referendum does take place, after the next Scottish Election, they are likely to be our Official Opposition.

It's not rocket science

One of the things you learn as a lawyer is that some cross examinations need to be planned.

Mibbee it’s because I’ve been doing this for a long time but it doesn’t seem to me to be difficult.

You also need to get to make sure the initial premises to the question are agreed with the witness but then get to the  pay off answer (or refusal to answer) that you are seeking as quickly as possible. You also need to ask closed questions in a way that prevents a different question being answered or a clarification being sought to distract attention from the fact the question has not been answered.

­ So, with that in mind here are a couple of more effective questions that our televisual interrogators might want to put to SNP spokesmen over the next few days during which, I confidently predict, the real territory of dispute will appear. For the avoidance of doubt, that will not be when the Referendum happens, or whether the electoral commission is involved, or (most ludicrously) whether 16 year olds should vote. The real issue will be whether there should be more than one question.

Now, before moving on here, I just want to remind some of the more naive souls who are circling this issue of one very important fact. The SNP don’t believe in Devolution, Max or otherwise. The SNP believe in Independence. Everything they do is aimed at that objective. That’s why they didn’t participate in either the Constitutional Convention or the Calman Commission.

On any view, you would think, giving people a third choice between Independence and the status quo would reduce the chance of Independence triumphing. In betting terms, the odds go from evens to 2-1 against but in reality, if that became the real choice, the natural inclination to “compromise”would increase the odds against by a much larger margin. It is therefore initially unclear as to why any Party seeking to win an Independence Referendum would seek to ask such a question.

There is a simple answer to that. They don’t, or at least they don’t in a meaningful way.

So, setting aside my other observations about whether the real aim is to create a legal quagmire preventing a Referendum happening at all, what else might the SNP want to achieve by encouraging the development of a Devo-Max scheme? Let us be in no doubt, it is not Devo-Max.

I would like to make of unchallengeable propositions.

1. If it’s a scheme the SNP don’t like it won’t appear at all. That’s not speculation, that’s what has happened to Calman. It will only appear at all if the SNP can vote yes/yes.

2. If it’s a scheme acceptable to Holyrood and Westminster, you don’t need a Referendum. What would we be voting on?

3. Any scheme that involves variable corporate taxes or excise duties across open boundaries is incompatible with a unitary state and will therefore never be acceptable to Westminster.

4. You can’t have a unilateral declaration of devolution. So, unlike Independence, what’s the point of voting for it?

5. If there is a second question, the SNP will encourage a Yes/Yes but, perfectly reasonably, point out that only a Yes to Independence gets a result.

6. A second question will prevent a united No Campaign.

7. A yes/no vote on a scheme unacceptable to Westminster achieves nothing and resolves nothing.

8. There is no mention at all of a second question in the SNP Manifesto.

So, back to the start. Here’s the simple line of questioning  the Nats can’t answer.

Q: Are you confident Scotland will vote for Independence?

A: (presumably) Yes

Q: Why then might you ask a second question

A: Because there is a demand etc etc

Q: But you remain confident that people will vote for Independence?

A: (presumably) Yes

Q: So, what’s the purpose to the second question?

Repeat as required.

As Sheriff Montgomery is wont to say to incompetent lawyers “It’s not rocket science.”

Tomorrow, some thoughts on the demography of Scotland and a bit more about why the Nats will get gubbed if they ever actually have a straight vote. Here's a taster from an earlier blog

Clearer but not yet clear

If I understand the different announcements made by the British and Scottish Governments tonight, within a month we will know whether or not there is going to be an Independence Referendum.

Starting firstly with Michael Moore, it is, to say the least, a pity that what he said in the Commons today was not what David Cameron said on the Telly at the weekend. Moore’s proposals are the soul of reason. The Sovereign Westminster Parliament, to avoid any possible legal dubiety, proposes to devolve to the Scottish Government the right to hold a referendum on Independence. There is to be no time limit on when that might be, simply an expressed desire that it be sooner rather than later.

There are conditions but these are essentially only that the electorate be the same electorate that vote in Scottish Parliament Elections; that the Referendum be subject to supervision by the independent Electoral Commission and that it have one question. The possibility is even left open that a different question could be asked on a different date.

It is difficult to see any good faith objection that could be raised to any of these conditions. The Nationalists seek to extend the franchise to 16 and 17 year olds but they must, in their hearts know that once you start mucking about with who can vote legitimately other issues arise: why shouldn’t Scottish Military Personnel, based in England, have a vote? Why should the Captain of our National Football team not have a vote while a management trainee from Poland, working for 12 months at an Edinburgh Hotel, (because that’s where they were sent as their own fifth choice) does get a say? The simple solution has always been that, accepting these anomalies, those who vote are those who can vote at a General Election. Once you start interfering with that then everything is back on the table.

And why shouldn’t the Electoral Commission have an oversight? The Scottish Government’s position to date has been because they (the Electoral Commission) don’t have legal authority to act in that capacity. Well, Mr Moore’s legislation gives them that authority, so what’s the problem now? Is it suggested that the Commission, whose members include George Reid, is a less than impartial body? That’s not suggested so this isn’t really a ground for objection at all.

Finally, the Question. A one question referendum is what the SNP proposed in their Manifesto. It has the support (now) of all other three major Parties. Insofar as can be determined from the same opinion polls Eck used to quote as showing a demand for a question to be asked, that one question  is what the people desire. 

So, what’s the problem?

That then leads us to the Scottish Government’s announcement.

This was a slightly odd creature. It was obviously a last minute decision to name the date, not least because no actual date was named! That is confirmed by the way it was announced by the FM on an unpreplanned TV interview and by the Cabinet on Twitter(!), together with the fact that four hours later the announcement features on neither the Scottish Government or SNP Website. The lack of detail of what exactly was being announced is the most curious aspect of all.

Now, charitably, it might be that Eck just wanted to put his beach towel on the lounger, defying anyone to move it. For what it’s worth, I’d be surprised if anyone does. What the (Scottish) opposition Parties want is a definite vote before May 2016. On the face of it, we’ve got it. But have we?

As I say, there appears to be no written statement from the Holyrood Administration to clarify what they are proposing. BUT if it is a simple yes/no held in October 2014 then, in light of Michael Moore’s concessions, that will be legally unchallengeable and politically acceptable to the Opposition. If that is what is announced then we will know the Nationalists genuinely want a vote.

If however they announce something else, particularly if they announce the intention to hold a multi-option referendum, or even that this remains a possibility, then what I have been saying all along will have been vindicated. That they want to be prevented, by law, from proceeding. And if they announce that the paving legislation is not to be published and enacted imminently, we will also know that they want the time necessary to unravel any successful challenge to spin matters out to the far side of May 2016.

So, as I say, within a month or so we will know if there is going to be a Referendum. Or at least know whether there is going to be one called by the SNP.

For I think in naming the day (more or less) they may have made a fatal error. Their Manifesto said they wanted a yes/no. They now say their preferred timing is Autumn 2014. If their proposed legislation got into a legal quagmire then, with cross Party Westminster support, UK legislation could secure that objective in a matter of a few months. Even the Nationalists would struggle to describe that as dictation to the people of Scotland.

For once, Eck might not have been as clever as he thinks.

The Cat among the pigeons?

In a rather odd development today, the Prime Minister decided to wade into the Scottish Constitutional Debate. I have absolutely no idea why.

In an article I wrote for Scotland on Sunday today I pointed out how Scotland was hardly in a ferment over this matter.

The SNP can’t quite get their own line agreed. On the one hand they have to assert that victory is inevitable but that rather begs the question as to why they don’t get on with it. The best they can come up in response to that is that during the election campaign the First Minister said that the Referendum would be in the second half of this Parliamentary term. He did, to be fair, albeit for the first time four days before polling

Their only, very thin, argument is that while there is a majority for Independence, some people would vote against it because they’ve been asked too soon!

This is indeed the nonsense that it appears to be.

I am, nonetheless, concerned about the Prime Minister’s Intervention.

The one thing that can be fairly said about Scottish Nationalism is that it has been an overwhelmingly peaceful movement. Certainly, from time to time historically, there has been a lunatic fringe but they have been as much repudiated by modern nationalists as they have been by the rest of the population. Central to that consensus has been recognition on both the Nationalist and Unionist side that if Scotland expressed a clear desire to leave the United Kingdom, that would be allowed to happen.

If a referendum was to be denied by apparent jiggery-pokery, regrettably, that peaceful aspect to the discourse could not be guaranteed.

So, we need to be careful here.

No-one doubts the moral mandate of the SNP to hold a referendum during this Parliament at a time of their choosing. If that proves to be during the second half of the Parliament then that’s a matter for them.

There is however a legal problem about the vires of such a poll. I have previously speculated that this might actually form part of Salmond’s calculations to avoid a vote he will inevitably lose. That needs to be sorted, either in the current Scotland Bill or by an Order under s.30 of the 1998 Scotland Act.

The tactics here need to be more carefully considered than they appear to have been by the PM this morning. Lawyers, even nationalist lawyers, might recognise that there is a legal issue about the legitimacy of a referendum. That is not however the view of the general public, who see no reason that the Scottish Government shouldn’t call such a ballot. That view is shared even by a lot of people who would intend to vote emphatically No.

The danger therefore of the Westminster Government giving the Scottish Parliament express permission to hold a Referendum but then time-limiting that power is that this will be seen not as a power being given but rather one being taken away.

And the danger of that in turn is not so much that it will give Salmond precisely what he wants, an excuse not to have a Referendum. That would, at worst, have adverse electoral consequences for the Devolutionist Parties. No, the real danger is that it might legitimise, in their own heads at least, those who might seek to proceed by other than democratic means.

So let’s encourage Westminster to give the Scottish Parliament the right to hold a Referendum whenever they want.

That nonetheless leaves one other question which needs to be addressed. I’m not persuaded that the “uncertainty” over Scottish Independence is having any affect, short term, at all on the Scottish Economy. That is because nobody who looks at the issue in any detail believes it to be even a remote possibility.

The “uncertainty” is however distorting our politics and, longer term, that will have an adverse impact.

There is therefore an argument for not allowing the SNP to find reasons never to ask the question That however needs a democratic mandate.

We are led to believe that the next UK General Election in May 2015. Why then shouldn’t all of the UK wide Parties enter that election with a commitment that, if it hasn’t already happened, there will be an Independence Referendum to follow in June of that year? And say now that this will be their position.

Doesn’t stop the Nationalists going sooner and can’t happen unless Scotland has voted for it (unless the SNP sweep the Country on a commitment to the Union!)

I can’t see how even the Nationalists could find an objection to that. Then again, I’m not holding my breath.