Quite a big thing that nobody seems to have noticed.

To say that the SNP leadership contest has been interesting would be something of an understatement. But you won't be short of pieces elsewhere to provide the gory details.

So what I wanted to write about here is the most interesting thing of all but has been little noticed. Even the candidates for the leadership of the SNP have conceded that Scotland is not going to be independent,, at least in the foreseeable future.

What? I hear you cry. All three of them said at the conclusion of one of the TV debates that they were confident Scotland would be independent within five years. And indeed they did. But they were lying. Not to persuade anybody in the wider electorate but to appeal to the apparently eternally gullible membership of the SNP. Or at least what is left of them. Scotland is not going to be independent

For look not at that momentary answer, look at what they are actually saying. Both of the candidates with any chance of winning are conceding that the only way to secure independence is by way of a referendum. And accepting that needs the consent of the Westminster. Which they do not have and in current circumstance are unlikely ever to have, even if the Party in power at Westminster changes hands in the Autumn of 2024. Now, admittedly they assert that Westminster could not defy clearly expressed majority demand for a second referendum and, for what it is worth, I agree with that. Indeed Michael Gove and (I think) Alister Jack have said as much. But, frankly, that is not going to happen any time soon. And they know it.

Since 2016, the SNP have had the most fortuitous set of circumstances: Brexit; chaos at Westminster; Boris Johnson and then Liz Truss!!!!! as Prime Minister on the one hand and the Queenly Nicola, Our Lady of the Pandemic, on the other, with the bonus of only having a sporadically competent opposition. Yet the dial has not moved. Indeed the only occasion recently where Yes led in a few polls in a row was during the BBC's usual ludicrously anglocentric coverage of the World Cup. A quadrennial event that turns a fair bit of Scotland in to 90 minute nationalists.

So, why should that more consistent stasis change?  Ms Forbes thinks it might if the SNP could run Holyrood more competently. It might indeed but that is a long term project before it would show any results. And, even if achieved, raise questions as why it hadn't happened before. Useless, showing his well earned reputation for hard work and attention to detail, thinks it might change just because it might. 

So, in truth, there will be no pressure of public opinion on the Westminster Government to concede another referendum and no prospect of them doing that without that pressure. So, Scotland is not going be independent.

Now what does that mean in the world of politics? Well, I think that depends on who wins. If it is Ms Forbes, who I believe to be sincere in her desire to improve the quality of Government, the public might just be prepared to give her a chance. If it is Useless, I suspect it would be carnage at the 2024 polls and his probable demise before the end of that year. Only, in the latter case, for any successor to have the same problem.

But that's not really my point. My point is that the issue of whether Scotland imminently is going to become independent, which, with the assistance of a press with a vested interest in that "possibility", has dominated Scottish politics for ten years has been settled. It is not. 

Monreale

Courtesy of a Christmas present from my wife, Andrea, I have just returned from a short break in the Sicilian capital, Palermo. As many of you will know from Twitter, I have travelled all over Italy, Palermo was probably my twentieth or so regional capital, and I have also travelled widely in Sicily alone but I have never previously been to Palermo. With the benefit of hindsight, this was a mistake. It is  a wonderful city with great squares, churches and other public buildings throughout. It might not be Bologna when it comes to sit down food but its street food is magnificent. And, although we were there in the middle of February, so was the weather. Warm enough to eat the self same street food outside in comfort in the evenings and, indeed, warm enough to wander about by day in nothing more than a light jumper. All in the most astonishing quality of light. I cannot commend it too much.

But while in Palermo you really need to visit the wonderful cathedral in nearby Monreale, which we resolved to do on Wednesday 15th February, our penultimate day.  I had actually been there before on a day trip, perhaps 25 years past, from nearby Cefalu but this had not been the most satisfactory of experiences as, in the very high Summer I drove in prescription sunglasses only to realise that this meant, on arrival, that I was faced with the choice of taking them off, and being unable to see the detail of the wonderful mosaics for which the cathedral is famous, or leaving them on and thus seeing not very much at all. This time I would make no such mistake. And the mosaics were wonderful. Hence the photo with which I start.

But, let's be honest, few people read my blogs for a travelogue. Which is why I have specified the date of our visit. 

You reach Monreale by a bus from a terminus on Via Indepenza just outside the wall to the north of the city. From there the bus climbs continuously up,  providing increasingly spectacular views of the Mediterranean as you go. En route I nonetheless had a wee look at twitter (I know!) causing La Signora Andrea to express annoyance at my distraction. I noticed however that a couple of Scottish political journalists were expressing surprise as to  being called to an unanticipated press conference. For fear of the formidable signora, I put my phone away before returning to it only after having seen the Cathedral and its almost as wonderful cloister.

But that having been done, we repaired, as one does, to a bar by the side of the Cathedral where I once again had a look at my phone. Sturgeon had resigned! Instead of my intended cappuccino, I ordered a large beer and even Andi, who doesn't normally drink very much, resolved upon a Cuba Libre. 

I have the experience of three shock political resignations. The first was when Harold Wilson resigned and I was informed of this by a Tory opponent in the beer bar in Glasgow University Union. I was so incredulous that I phoned my mother for confirmation. The second was when Mrs. Thatcher fell and I learned of it from a Court Cop at Airdrie Sheriff Court as I waited to see a Sheriff to try and interdict a Poll Tax Warrant Sale. This was the third. 

If Sturgeon has no legacy beyond this, she certainly resigned in the most beautiful of these three settings.

Yet, while the precise timing of the event might have been a surprise, the fact of it happening sometime around now was not. For I had predicted it on myself on 7th January

If you look at a lot of the commentary, as to why  since Wednesday as to why she has had to go it seems to consist only of what was staring these commentators (and me) in the face at the turn of the year. There is and was no way forward for independence. To to steal a line from Yaz, for Sturgeon, the only way was down.

Anyway, here is the question, given that, who exactly would want the job? 

Do not forget there are two jobs on offer here. First Minister of Scotland, certainly, and which ambitious politician wouldn't want that?  You get well paid and, in Scotland at least, get to enjoy "showbusiness for ugly people"

Except there is also a second job, leader of the SNP. And it is that job Sturgeon has decided she needs to leave. 

And who at this point would want that?

For, as I say, the only way is down.

Now, this is where personal position and political calculation come together. 

I start with the political.

There is a poll today suggesting that the SNP might lose half their Westminster seats at the next UK General Election. A poll carried out before their most well known, and regarded, politician resigned. I make no bold prediction in suggesting that, even are things are not as bad as that, the Nats are likely to lose a fair number of MPs in (most likely) the Autumn of 2024. 

Now Sturgeon survived such a reverse in 2017 but could say, implicitly, that they only had these seats to lose in the first place because she had won them to start with. So her survival then was never in doubt. 

But if her successor presides over a, probably worse, reverse? And the Party is then staring down the loss of Holyrood with all the loss of profile and sinecures and patronage that would follow? 

So let's not assume this would be the last change of SNP Leadership before Holyrood 2026. 

And that is where the personal comes in.  

The blindingly obvious successor to Sturgeon is Kate Forbes. But the time is not right for her. She is still on maternity leave. She also has three step children with her widower husband. For both reasons it is difficult to see that she could easily move her principal home and establishment from her Highland Constituency to Edinburgh as the job of First Minister would necessitate.  It is certainly possible for my feminist colleagues to say that "this isn't fair" but it is also just life. Everything else you know about Ms. Forbes says that she would not neglect her child or her step children in pursuit of political ambition. I applaud her for that.

But here is where I have a sense of deja vu and a more shocking sudden vacancy, when Donald Dewar died. 

Then, there were three obvious candidates to succeed him. None of whom won (first time round), For two of them were young(ish) women for whom the time was not right. The third was eventual FM, Jack McConnell. He was the obvious choice but, then, the assumption was that a competent Labour FM would be in post forever. So the solution was for them to rally around the utterly inadequate figure of Henry McLeish who big Donald himself had decided, during his penultimate illness, was not even capable of being temporary First Minister.  Their assumption was that after a few years he'd have to go and they'd be personally better placed to challenge for the job. As indeed Henry did, only much sooner than anybody anticipated. Whereupon the prize fell to Jack on an essentially "told you so" basis. And without even a contest. So here is my prediction. Forbes won't stand. But she will in time be the next SNP candidate for popular election as First Minister. For the other runners are utterly inadequate.

Some thoughts on today

 So, it is done. 

Contrary to what I thought, the UK Government has intervened under s.35 of the Scotland Act 1998 rather than s.33. As I understand their rationale it is that there was no point mucking about. Had they invoked s.33, which allows the Supreme Court to strike down Holyrood legislation on the grounds that it lies outwith legislative competence, they would have been on solid ground in my opinion but it would have required the UK Government to take the matter to Court and I recognise the Scottish Government might have had an argument. If The Scotland Office had decided that if they (legally) lost the argument they would then invoke s.35, then why not just cut to the chase? So that's what they've done.

Sturgeon's response to this has been bizarre. It is perfectly legitimate, from her perspective.  for her to be annoyed. She does not believe in devolution so any intervention from Westminster would be anathema to her. But instead of sticking to that political point she decided to declare that she would be going to Court.

Now, the timing of this was, to put it mildly, strange. 

At this point, I will cut and paste for you s.35.

35 Power to intervene in certain cases.U.K.

This section has no associated Explanatory Notes

(1)If a Bill contains provisions—

(a)which the Secretary of State has reasonable grounds to believe would be incompatible with any international obligations or the interests of defence or national security, or

(b)which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters,

he may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent.

(2)The order must identify the Bill and the provisions in question and state the reasons for making the order.

(3)The order may be made at any time during—

(a)the period of four weeks beginning with the passing of the Bill,

(b)any period of four weeks beginning with any F1... approval of the Bill in accordance with standing orders made by virtue of section 36(5),

(c)if a reference is made in relation to the Bill under section [F232A(2)(b) or] 33, the period of four weeks beginning with the reference being decided or otherwise disposed of by the [F3Supreme Court].

(4)The Secretary of State shall not make an order in relation to a Bill if he has notified the Presiding Officer that he does not intend to do so, unless the Bill has been approved as mentioned in subsection (3)(b) since the notification.

(5)An order in force under this section at a time when such approval is given shall cease to have effect.

Now let us deconstruct this.

Alister Jack has clearly acted under subsection 1(b). 

But let us look at the rest of the section. 

First of all subsection 2. It requires that when making the order the Secretary of state must "state the reasons for making the Order". But, at the point Sturgeon spoke to the BBC, Alister Jack had not made the Order he had only announced his intention to do so. And in consequence had not required to state his reasons. Yet Sturgeon had already announced her intention to go to Court, whatever his reasons were. It is most unlikely Sturgeon had legal advice on this since any lawyer asked about the prospects of going to Court over any decision would start by saying we must first know the reasons for the decision. Yet Sturgeon, when she gave her interview, hadn't yet seen these reasons. No one had.

I don't practice in the courts at the highest level but every so often you get a zoomer client with an intention of suing but who has no legal case at all. My favourite one was a man who had fallen down the stairs in his own house. He wanted to sue the Council. I inquired about on what basis. 

"Was there perhaps a faulty step or a loose carpet?"

 "No."

 "So in what way was the Council to blame/"

 "It was their house".

 "Yes but what caused you to fall?"

 "I was drunk." 

"Sorry, you fell down the stairs in your own house because you were drunk? Why do you think that would let you sue the Council?"

"It was their house."

Ms Sturgeon made as much sense today. 

But let us go back to s.35 before returning to Ms Sturgeon. 

And in particular s.1(1). 

All that the Secretary of State needs to be possessed of before making an order is "if a Bill contains provisions which the Secretary of State has reasonable grounds to believe (my emphasis)..........(2) makes modification of the law as it applies to reserved matters........."

Now, the words above have a meaning, in particular the subordinate clause "which the Secretary of State has reasonable grounds to believe". If they were not there the test in any Judicial Review would be objective. "Does the Bill do this?" But these words are subjective. It does not matter whether it does or does not, it only matters if the Secretary of State reasonably believes that it does. And as Alistair Jack was at pains to repeat over and over in the Commons today, he has formed that view because it is the legal advice he has received. 

So a Judicial Review would go nowhere. Did he have that belief? Was it reasonably formed? Case over.

And that is the legal advice Sturgeon will receive from the Lord Advocate if she ever gets round to asking. Probably, that it is so unstateable that the Lord Advocate won't even be prepared to to attempt to state it. 

Now, I am aware that journalists are not lawyers but they are all people of above average intelligence. Well, most of them are.  Yet Sturgeon was allowed to tell a very senior BBC Journalist today that she would be going to court without being asked if she had any legal basis for doing so. To which the only honest answer would have had to be that she didn't know yet. But that question was not asked. 

And no other electronic media journalist appears to have seized on this either. Obviously, as I write, we await the print media but I am not holding my breath So the Gender Recognition Reform Bill is dead. Not perhaps quite so dead as a Second Independence Referendum but pretty dead nonetheless. 

But we are left with the bald fact that it is unprecedented for the Secretary of State to intervene in this matter and here I go to my friend and indeed briefly business partner, Donald Dewar.

He wrote s.35. As some junior Labour MSPs should remember. And when it was going through the Commons (as then Clause 33) in January 1998 he said this.

.“I stress that the process of government is a process of negotiation and discussion; it is a matter of bilaterals and discussions at an official level… Common sense dictates, consensus emerges and agreement is reached 999 times out of 1,000.”

There has been no process of negotiation and discussion here. Kemi Badenoch, the Equalities Minister specifically came to Scotland to offer that. Shona Robison sent her homeward to think again. You might almost think, latterly, that SNP objectives here were simply to pick an anglophobic fight and, if there was no benefit at all to trans people from this entire process, they would simply have to be pawns sacrificed for "The Cause".

  

35 or 33?

 As a few people have noticed, I published a blog ianssmart: A big change in 2023? yesterday. I commend to you. 

In truth however most of it wasn't written yesterday but on January 2nd. I planned on finishing the next day but it turned out I was much busier work wise than I anticipated over the next few days so I couldn't get it done until Saturday. I wondered if I had perhaps missed my moment but concluded ultimately that I hadn't, for what I have had to say would have relevance for several months ahead. 

I say that only because what I have to say today will have a shelf life of less than a fortnight. But it is important.

The Gender Recognition Reform (Scotland) Bill was passed by the Parliament on 22nd December 2022. As with any other (ordinary) Bill there is now a period of twenty-eight days before the Presiding Officer sends it to (now) The King for it to be given Royal Assent. 

And during that period The Secretary of State for Scotland can intervene.

All the attention in the press has been about whether that intervention will be under s,35 of the 1998 Act. Firstly however, there seems to me to be a misapprehension both about what the provenance of s.35 is and  what it exactly allows. Invoking s.35 would not be "an attack on devolution". It is part of devolution. It's original author was none other than that arch anti-devolutionist, Donald Dewar. The always excellent Joshua Rozenberg summarises the history here Scottish gender recognition: who decides? (substack.com). It is not difficult to see various scenarios where this provision might need to be utilised. If, for example, Holyrood reduced the age of consent, you can well see the rest of the UK objecting to their young teenagers being able to engage in sex with older men legally simply by getting driven by them over the open border to North Berwick. Certainly, s.35 has not been used to date but that's because Holyrood hasn't done anything so stupid to date. 

Creating a situation where Scots born people can have the benefit of being women in the rest of the UK based on a birth certificate that the other home nations can't be sure is accurate surely falls in to a similar category? 

So, for that and other reasons a s.35 challenge would. in my opinion, be likely to succeed. But just for the avoidance of doubt s.35 does not give the UK Government an absolute veto. It can only be invoked if certain criteria are met, reasons must be set out in writing and, as big Donald says in the debates Mr Rozenberg refers to, these reasons would be subject to judicial review leading potentially to the s.35 objection being quashed. 

And a s.35 challenge would have one other huge advantage for the Tories. It is a long, long time since they were on the right side of Scottish popular opinion. Even the sale of council houses, hugely popular in its uptake, enjoyed that popularity largely in secret. But on Gender Recognition reform, popular opinion would side overwhelmingly with them. It is difficult to argue that a step taken to protect women's rights, with overwhelming public support, could ever be plausibly portrayed as an "insult to the people of Scotland", (sic). Particularly if it leads you logically to arguing that one of the "advantages" of full independence would be to make Scotland a less safe place for women.

The power of s.35 challenge lies with Alister Jack but the decision would surely be taken in conjunction with the Equalities Minister, Kemi Badenoch. And if the Tories had the sense to make Ms Badenoch the public face of any announcement it might also give them the advantage of being seen to have modernised their act, contrary to nationalist propaganda that they are all still middle aged men in mourning over, at best, their lost bowler hats and, at worst, their tweed plus fours. 

So it would be daft for them not to act under s.35. But they won't.

Because, at first at least, they will act under s.33. 

The legislative powers of the Scottish Parliament in terms of the 1998 Act proceed logically. s.28 provides the authority to make legally enforceable legislation. s.29 restricts that power to matters within legislative competence and defines that legislative competence. The famous s,30 allows for legislative competence to be expanded by Westminster, either permanently or, as happened for the 2014 referendum, on a temporary basis. But here now is the interesting bit. 

s.31 provides that for a Bill to be introduced at all its introducer must certify that it is within legislative competence. That is stage one at which a Bill could be stopped. 

s.32 provides that once passed the Presiding Officer must submit the Bill for Royal assent but not for a period of twenty eight days or the final conclusion of any reference under s.33 if (almost inevitably) later. 

s.33 provides that within that twenty eight day period various law officers, the relevant one here would be the Advocate General for Scotland, may refer a Bill to the Supreme Court for their opinion on the Bill's legislative competence. Their view is final. That is stage two at which a Bill could be stopped.

s.34 has been repealed you'll be pleased to learn, although possibly not when you realise why.

s.35 gives a final opportunity for the Secretary of state to block a Bill. As I say above, that is subject to judicial review but subject to that caveat, this is stage three, and the final stage, at which a Bill might be stopped.  

But here is the point. s.35 is clearly intended as a long stop only to be used if s.33 cannot be deployed or has been deployed unsuccessfully. Indeed the wording of s.35(3)(c) as good as says that. For the time limit for a s.35 challenge is 28 days from the passing of the Bill or 28 days from the determination of any s.33 challenge. It doesn't expressly say the s.33 challenge has to have been unsuccessful but that is as good as expressly said, for if the s.33 challenge has succeeded then there is no Bill needing blocked under s.35. 

HOWEVER! If you go down the s.35 route and are then judicially reviewed successfully then the UK Government can't go back and try to use s.33, for the 28 day window for that would have been long since up. For while a s.33 reference postpones that 28 days insofar as it relates to the Bill being sent for Royal Assent there is no such reference in s.35. 

So, essentially, by going directly to the option of a s,35, the UK Government would be giving up, forever, on the potential earlier remedy of s.33. Why would they do that? And it seems to me at least that, in changing the definition of a woman, the Bill itself trespasses in to the subject matter of the (reserved) Equality Act, particularly (now) in light of the Judicial conclusions in the two For Women Scotland cases. 

So, watch this space.  If the UK Government is going to act at all, they have until 17th or (arguably) 18th January. But it is never good legal practice to bang up against a time bar for the sake of it so they will act next week. And it will, firstly, be under s.33.

Footnotes.

I don't normally do footnotes but a few things occurred to me, or were drawn to my attention on the way, and couldn't be easily fitted in to the text already written.

1. I have previously written on why the Bill might be beyond devolved competence. The link is here. ianssmart: A dead duck

2. Failure to challenge under s.33 by the UK Government would not, of course, prevent challenge by members of the public even after Royal Assent standing the terms of s.29. I wrote about that here. ianssmart: Section 29.

3. As I didn't want to be too wordy, I didn't put the sections of the Scotland Act directly in the blog but you'll find them here et seq. Scotland Act 1998 (legislation.gov.uk)

4. In relation to fronting up the challenge for the UK Government, I was intending to say something slightly disparaging about Alister Jack's lack of public profile until it was drawn to my attention that he is one of only two cabinet ministers continuously in post since December 2019. So he may simply want  a low profile. The only other survivor is Ben Wallace.

5. There has been much criticism of Lady Haldane's judgement in For Women (Scotland) No.2 . I think this is unfair, She simply applies the law. It is the law, particularly s.9 of the original GRA, which is an ass. 

 

I 

A big change in 2023?

There was an assumption among the commentariat in their predictions for the new year that, politically, nothing much will change. I beg to disagree.

Say what you like about Nicola Sturgeon, she is formidable politician. She has accomplished not only dominance over her own Party and Scottish Television, both of which she admittedly pays for with public money, but also over wider Scottish Civil society. There was polling towards the end of last year about name recognition of Scottish politicians. She was completely off the chart as opposed to anybody else of any Party. Including, it should be noted, her own Party, where the now departed Ian Blackford at Westminster was better known than any other SNP Holyrood politician. 

But at some point this runs in to a wall. Although Sturgeon hasn't to date admitted it, there will not be a second referendum, de facto or otherwise, this year. And, one suspects, after the "de facto referendum" special conference it will be clear that there will not be a referendum, de facto or otherwise, in 2024 either. And when the dust settles on the 2024 General Election? If Labour has won, there still won't be a referendum but the political landscape would be transformed. No longer would it be "Only Independence can save us from the evil Tories". For we would have been "saved" from the Tories, evil or otherwise. If it is a hung Parliament then the SNP will face the prospect of voting with the self same evil Tories or becoming Labour lobby fodder. If they don't want to lose their seats in short order, the SNP at Westminster will face a Hobson's choice in that regard, but they'll be left sitting in Westminster for a purpose other than advocating "Freeeeedum!" The internal SNP politics of that will  be.....................challenging. For, despite it being a ludicrous proposition,  there are undoubtedly a fair number of Nats who are capable of holding in their heads at the same time the idea that, although the Tories are "evil", it is a matter of indifference whether they or the Labour Party are in power at Westminster. Even Nicola's formidable abilities as a Party manager will struggle to manage that. And finally, just for completeness, there is of course a third possible UK General Election result, an outright Tory victory. But what would that mean? The status quo and no referendum for (at least) another five years. And nothing to be done about it.

So, remaining leader of the SNP and First Minister long, or even medium, term has limited attractions. Scotland is not having a referendum, let alone achieving independence for at least ten years. There is of course the fame and the money but fame has its downside. A proper private life is almost impossible. No wandering down to the paper shop on a Sunday morning in your slippers and joggers but without your teeth. No opportunity to have an uninhibited night out. No freedom to tell idiots they are just that (a particular problem if you are regularly mixing with people in the SNP).

And as for the money? It is impolite to talk about personal remuneration being a consideration for politicians but it undoubtedly is. I suspect however for the very reasons above about the limitations on a personal life, Ms Sturgeon has not had much opportunity to spend much of what she has earned since 2014. If required, I also doubt she would have much difficulty securing a position with some sort of international quango. Even her worst enemies do not dispute she is an intelligent person with a proven ability to work hard.

So what is the reason for Sturgeon to hang on? There is of course the appreciation that, for her to leave the stage would be tacit admission that the game was up, at least for the duration of her potential future time in office. But she knows that anyway and perhaps better to depart the stage than to face the groundhog day of assuring SNP Conference twice a year that a referendum is just around the corner, with ever decreasing credibility? Then there is the fact that there will be a UK Election in 2024 and Sturgeon is, on any view, the Nats most formidable campaigner. But she was younger and fitter and fresher in 2017 and that didn't stop her losing twenty one seats. Such a reverse again might well lead to circumstance where her departure was, at least perceived to be, not entirely voluntary. Then there the issue of a managed succession. That has to happen before Holyrood 2026 if Sturgeon plans to be gone by then or indeed, failing defeat at the polls, then plans to depart not before at least 2028. 

Leadership contests involving Parties in power are inevitably blood baths. Don't just consider what happened among the Tories last year, look at how Gordon Brown was anxious to avoid this in 2007, the SNP themselves in 2014 and indeed Rishi at the end(?) of the Tory Thirty Month War. Sturgeon has no obvious successor. Yousaf is useless and the SNP know that. Robertson, one suspects Sturgeon's chosen successor, has clearly decided he would rather travel the world at public expense than do the hard yards and, among the current Cabinet, Swinney, the day before yesterdays man, and possibly (Keith) Brown are nonetheless the only other people you would trust to run a tap.  I exclude from this the undoubtedly able Kate Forbes on the basis that, with a new baby and a distant constituency she genuinely doesn't want the job. 

So there will be a contest wider than the current cabinet and it will be a bloodbath and Sturgeon must know that. And if she is, as she surely must be, seized of the desire to avoid that bloodbath on the eve of an election, either 2024 or 2026?  Everything, both from a personal and wider political point of view, then says Sturgeon goes this year. Possibly as soon as the de facto referendum  "strategy" collapses. And then, well here is something for your consideration. leadership contests can also mark generational change. 

The quality of the SNP back benches leave a fair bit to be desired. But they now have a new member. I have never met Ash Regan but, before she shot to fame over the last few weeks, I knew of her by reputation through her former junior Ministerial position as inter alia the Legal Aid Minister. She was highly thought of in that capacity: on top of her brief; sympathetic to reasoned argument; not afraid to say immediately that she was unsympathetic to not so reasoned argument. 

She has emerged with great credit from the the Gender Recognition debate. You don't have to agree with her views on this matter to respect a politician prepared to pay a personal sacrifice for their beliefs. Equally, her ability to deliver compelling Chamber speeches written by herself contrasted bluntly with the inability of the Minister "in charge" of the Bill to even properly read out speeches written for her by others. Regan looked the part of a politician on the way up; Robison as someone utterly out of her depth and surely shortly out in any other capacity. 

But there is something more. I doubt very much that the ludicrous Gender Recognition Bill in its current form, would ever have commanded a majority at an SNP Conference. Those former stalwarts who have departed for Alba are not truthfully much different from the remaining SNP rank and file and there is little doubt where Alba stands, more or less unanimously, on this matter. The Bill is very much the creature of Sturgeon and a small group of trans activists who have attached themselves to the SNP cause. But of course the Bill, in detail, was never put to an SNP Conference. However if the Bill is not passed in to law, which seems to me almost inevitable, and there might then be then an SNP members vote about whether to walk away from another attempt? Particularly if there is little to choose between the candidates on the national question, this might easily become a key issue in a leadership contest.  

Sometimes you are simply in the right place at the right time without having actually planned to be there. Margaret Thatcher; Tony Blair;  Angela Merkel; Voldoymyr Zelensky,

Ash Regan? 

Conundrum solved

Recently, a Glasgow Sheriff ruled that a fugitive from American justice had not acquired distinctive tattoos, similar to those born by the guy the US were seeking, as a result of them having been applied recently, by persons unknown, in Scotland, while the suspect was under a general anesthetic. The Sheriff therefor ordered that the guy be extradited.

Last Wednesday, in a judgement just about as certain in advance as the tattoo case, the UK Supreme Court declared that the Scotland Act 1998 did not allow Holyrood to hold a unilateral independence referendum. This was hardly surprising since it was the same conclusion that had been reached back in 2011 by Alex Salmond and his then deputy, Nicola Sturgeon.

I have no idea why Sturgeon chose to bring this misfortune upon herself. Had she wanted to, she could have proceeded in a number of different ways than that on which she did. Her problem initially arose from the Scottish Ministerial Code which asserts that Government legislation cannot be introduced without the consent of the Lord Advocate but there were three ways round this, Firstly, she could have changed the Ministerial Code. Secondly, she could have appointed a different Lord Advocate. Both Joanna Cherry KC and Claire Madison Mitchell KC (who wrote the SNP intervention in the case) are eminently qualified to be Lord Advocate and both believed the Bill to be competent. Thirdly, she could have had the Bill introduced by an SNP back bencher who wouldn't need the Lord Advocate's approval. She did none of these. Instead, having failed to persuade the Lord Advocate that her Bill was competent, she did persuade the Lord Advocate to ask the Supreme Court if Ms Bain might be wrong in being unpersuaded. Unanimously, a Supreme Court, from a bench where English Judges were in a minority and with a Scottish Judge in the chair, ruled unanimously with the Lord Advocate. Indeed with Mr Salmond and the younger Ms Sturgeon.

There is much anger among independence campaigners about Ms Sturgeon's approach. I would invite you, if you have the time, to track down a vitriolic piece from the veteran Yesser Robin McAlpine in this regard or indeed the thoughts of the returned Wings over Scotland, who now sees Ms Sturgeon as a bigger obstacle to Scottish independence than even Mr Sunak. Last but by no means least, STV did a lengthy interview with Mr Salmond himself who, for some unexplained reason, conducted the interview from his garden in late November but who made many of the same points. Maybe, like the decision to backdate the sexual harassment complaints process, it was all just a terrible mistake by Ms Sturgeon. I leave the membership of the SNP to work that out for themselves.

The First Minister is now left only with her plan C, to fight the next UK General Election in two years' time as a de facto referendum. Note the two years' time bit. The SNP Westminster Group could of course resign their seats now and fight a series of by-elections. This would have no constitutional significance but if they were returned with increased majorities then it would be a grand gesture. Noticeably however they are not doing that for it would involve a bit too much dependence on the "if". Or the SNP could call an early Holyrood Election. All they'd have to is get Ms Sturgeon to resign and vote down all alternative candidates for FM for 28 days and the Scotland Act then triggers an election. Again, a nationalist increased representation would demonstrate that Scotland really was in the state of outrage the Nationalists claim, but noticeably they are not doing that either.

If they have these worries now, believe me they are only putting off bigger worries to come in 2024. For if the Lord Advocate's reference was a mistake, then having a de facto referendum which won't be recognised by "Unionist" opinion if the Nats, almost inconceivably, win, but which will certainly be recognised as them "having had their referendum" by the Unionists if the Nats almost inevitably, lose? Well, that's brave. In the Sir Humphrey use of that word. 

So, the Nats are completely stalemated but there remains a bit of a niggle on my side at the suggestion that there can never be another referendum without Westminster consent, That this consent would never be forthcoming is of course a nationalist invention. Michael Gove, who mainly leads for the Tories on these matters, has stated that Westminster would consent if it became clear that independence was truly established as Scotland's settled will. The furthest Labour goes is "now is not the time", although you suspect "the time" will not arise at any point during the term(s) of the forthcoming Labour Government.

But I don't think that is enough as it does ultimately seem a bit undemocratic so I have solution! The solution to the conundrum lies in the referendum we did have in 2014. Then, there were 2.2 Million No voters. So, why don't we put in the Scotland Act that if, at any Westminster or Holyrood election, Nationalist Parties get more than 2.2 Million individual votes then they would be absolutely entitled to a second (or indeed a third etc if they did it again) referendum. Respects the result of the 2014 vote but doesn't leave it frozen in time. Can't surely say fairer than that?

I praise of boring

 It is time things were a bit more boring. 

Since the beginning of 2015, British politics have been a state of some chaos. We have had a referendum, three General Elections, five Prime Ministers and no less than eight Chancellors of the Exchequer.  Oh, and we have also had a pandemic. And a proper war in Europe. 

And through quite a lot of that time people have been worried. Not always the same people. In the run up to the Referendum people worried they might lose their right to live in the UK. Then others worried that such was the state of the Tory Party, Jeremy Corbyn might become Prime Minister with all that would mean for our Jewish population. Then they worried that leaving the EU with no sort of deal at all would wreck the economy. Then they worried they were going to die or, even if they survived, they would lose their livelihoods as a result of lockdown. Then. just as they'd started to worry about the cost of living, they were distracted by worrying about the possible collapse of their pension fund. Then, when that latter threat receded, they went back to worrying about the cost of living, not least whether they could afford to heat their homes through the Winter ahead. And then finally, to top it all, they found themselves worrying that there might be a nuclear war. 

So boring, for a while, would be good. And, despite his ludicrous false first step over Braverman. I think Sunak will, in a good way, be quite boring. And Sir Keir will bore back, promising a Labour alternative that can also be trusted to be reassuringly boring. Now, while I'm for that Labour Government as soon as possible, I'm realistic enough to think the Tories would be mad to go the Country before the Autumn of 2024. The problem for the Tories then is, just as John Major, our last boring but competent Prime Minister. could never quite get over Black Wednesday, I suspect Rishi will never get over the 44 days of Truss. A Party daft enough to do that once could not be trusted never to do so again, at least until a respectable period of time had passed. 

Anyway, I don't normally write about UK politics and I'm not really writing about that here. For there has been another aspect to the chaos of the last seven years that has caused some fear. That, such was the state of UK politics, a crucial number of middle ground voters might conclude that an Independent Scotland could hardly be worse. Now my point here is not to knock that belief down but rather to acknowledge its existence as a concern. 

The SNP leadership were sufficiently realistic to accept in the aftermath of the 2014 referendum that they couldn't immediately credibly demand another go. But a fair number of their rank and file were not. The Women for Independence group was not wound up for a single day, nor were any number of "Yes" Groups throughout the Country. The All Under One Banner organisation, charged with demanding a re-run referendum was actually set up in October 2014!

Now to square this circle, Sturgeon's 2016 Holyrood Manifesto found a form of words. A SNP run Scottish Government would not seek a second referendum unless there was a material change in circumstance, such as a vote to leave the EU in the then forthcoming EU Referendum.

This was an easy pledge to make. It bought off the marchers with the illusion of a possible second referendum yet, in May 2016, proceeded on the assumption that there was not the remotest prospect we would actually vote to leave the EU. Everybody in the SNP could be happy. Insofar as they are ever happy.

And yet we did then vote to leave the EU. And Sturgeon had hung herself on a hook she has been wriggling on ever since.

However, she has been helped by wider events. If it was inconceivable that we would leave the EU; inconceivable that Jeremy Corbyn might nearly become Prime Minister; inconceivable that Boris Johnson would actually become Prime Minister, let alone Liz Truss, and yet all these things happened, why then was it so inconceivable that there be a second independence referendum within ten years of the first? 

The answer to that question now is boring. Because the answer to that question is boring. 

We are now set for an attritional two years of UK politics. Labour will argue the coming austerity is because the Tories have mismanaged the economy. The Tories will argue that they have learned from their own mistakes and that a Labour Government inevitably means more tax (heavy emphasis) and spend(thrifery).  

The point is that nationalist politics will be irrelevant to this, For the age of chaos is over. When the Supreme Court delivers its inevitable ruling next month, any lingering mirage of a referendum next October will disappear. And, given that, we are then left with either the option of a second s.30 consent (inconceivable from UK Governments of either stripe) or a de facto referendum when the UK goes to the polls in 2024. "It doesn't matter to us if it is a Labour or Tory Government, we are voting in a de facto referendum instead," Good luck with that SNP. No. I really mean that.

This has been an odd period in Scottish politics. But it is about to be bored to death.