Upon Westminster Bridge

In March 2015, @andimecbandi and I had been together for a year and we decided to do something to "mark" the occasion (celebrating not really being a Scottish thing).

We looked at various options and in the end resolved there was no finer ( or easier) destination for a short weekend break than our own capital city, London.

We flew down after work on the Friday and back late on the Sunday, resolved to cram in as much as possible in the short time available.

Now, I've obviously been in London many times for matters related to my work or political commitments of various sorts but I hadn't been in London as a tourist since I was still at school. On the Saturday therefor we decided to do the Tourist full bhuna.

Setting off early from our Liverpool Street base we proceeded to Tower Bridge, then through the City to St Paul's. Onwards via Fleet Street to the Inns of Court, then Trafalgar Square; Admiralty Arch; The Mall; Buckingham Palace.

Refreshment taken, we then negotiated St James Park to reach Westminster Abbey and on to Parliament Square.

Finally up  Whitehall past the Cenotaph to Downing Street, at last boarding a Tube to retire to our hotel exhausted for a wee lie doon.

On the way, as tourists do, we took lots of photographs. One of which appears above. @andimecbandi upon Westminster Bridge.

It's not a great photograph, for the sun is directly behind me, but it was a photograph literally hundreds of people were trying to take of their own loved one or loved ones at exactly the same time. The Houses of Parliament, the most famous legislature in the entire world, viewed from one of the most famous bridges in the entire world, with one of the most famous rivers in the entire world also in shot.

It was of course at almost this exact spot that last Wednesday what was presumably meant to be a symbolic attack on this most visible display of our democratic life was launched. It failed. It lasted start to finish eighty two seconds before the attacker was shot dead in what was not a security failure, as some would suggest, but in surely what has to be classed as an unprecedented security success. Eighty two Seconds.

But of course, even in that eighty two seconds, three innocent civilians and one heroic Police Officer still lost their lives.

The next morning however, our Parliament was back. Appropriate tributes paid, democracy went on.

On the Sunday of our break we'd had enough of the "grand" sites of London so we headed in precisely the opposite direction, through the east end, via Petticoat Lane, and the streets and streets of open air clothes markets surrounding it, to eventually Brick Lane and its food.

It was as if you were transported to the modern day markets of Samarkand. People of every colour, culture and religion, a thousand languages being exchanged alongside the lingua franca of English. And the food! We came across a disused factory where it was possible to sample, at countless different stalls, street food from just about every country in the world.

Food served up by those originally hailing from wherever but now, altogether, Londoners. And on so many stalls, wee flags. Flags not just of the country of the food's origin but Union Flags as well. People proud of their own origins certainly but proud also now to be British.

Some times good things can come out of tragedy and I think last week might be one of these times. For in the aftermath of events it wasn't just Londoners who came together, the whole country did. In defence of our way of life in all its diversity; agreeing across the political divide with the defiant response not just of our Church of England Tory Prime Minister but also of our Muslim Labour Mayor of London.

And also in defence of our democracy. Sure, just like any political system it has its crooks, chancers and opportunists. But across the main Parties it has far more people like Tobias Ellwood MP, who ran towards the trouble, knowing not what might await, to give PC Palmer desperate medical assistance. Far, far more people like that.

In the end, in our own understated way, the whole thing made you proud, and grateful, to be British. Maybe we should all be that just a little more often.

Spelling it out.

I wrote a mega blog on Friday and thank you for all the kind comments on Twitter and elsewhere.

But I've said enough for one weekend except to point out in what, in setting off,  I hope will be a very short blog, something that most people are missing.

There were two crucial things that happened on Thursday past.

Mrs May ruled out a second Referendum for "Now" but, at least as importantly, David Mundell said that the Westminster Government wouldn't even discuss the matter until after Brexit was complete.

Which means, for the hard of thinking, Mundell ruled out a second referendum before the 2021 Holyrood election.

From the SNP requesting a s.30 in January 2012 it took until December 2013 for the referendum legislation to be on the Statute Book. The first part of that process, agreeing the terms of a s.30,  has a timing largely controlled by the Westminster Government who can insist on "these terms or no terms" but the second, even if the Nats ultimately surrender entirely on the first, engages the process by which any contentious ordinary legislation takes about nine months to get through Holyrood. So, for a referendum in Autumn 2020, the last possible date pre May 2021, you'd need to introduce legislation no later than Autumn 2019. And you couldn't introduce legislation until you had the s.30. Which is not even going to be discussed until after March 2019. Anybody think the ball couldn't be run into the corner for six or seven months?

Kevin Pringle, one of the very brightest Nats, got this on this morning's Sunday Politics Scotland. The key thing for them now is a vote before May 2021, when they would otherwise need a fresh Holyrood mandate.

Now, the Nats might get that mandate in May 2021 but they'd need an express manifesto commitment. Which they were scared to seek in 2016 and indeed sought even only very much down the ticket, in 2011, when their manifesto said more about the Commonwealth Games than constitutional upheaval. Albeit that priority was changed once the votes were counted.

There are two problems for the SNP with this. The first is that it is quite difficult to get a Holyrood majority. They don't have one now, albeit they can rely on the current Greens on this issue. But the second is that they would have then to state expressly in their 2021 platform that they would  have a vote during the 2021 plus Parliament. Even if the polling on that platform was condemning them to defeat either at the election to follow or the Referendum itself.

Yet what can the SNP do about this? Nothing.

My Friday blog dealt with this but, to spell it out again. Sturgeon in September 2019? "These are outrageous conditions," Mundell: "Well no doubt the electorate will provide their verdict on that in just 18 months time".

Now, maybe this will all, in time, play out badly for my team. Maybe the Nats will win on an express manifesto commitment in 2021 and there will be another vote in 2023. Which maybe we will lose. Maybe. But only if the Nats can maintain the illusion in between that the different electoral priorities of West Aberdeenshire and North Lanarkshire can be obscured by a flag.

Anyway, I promised you a short blog. That's it.

Goldfish

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.

The Personal is Political

I had a really troubled sleep last night.

Months ago I reached agreement in principle on a major new business venture of my own. More of that when it happens.

But, as with all such business ventures, it was conditional on funding and the bank, although long since also committed in principle, have taken forever to draw up the actual paperwork.

Entirely by coincidence we, my intended new partners and I, are due to sign off on the bank paperwork this Wednesday and the deal itself this Thursday.

But the deal involves borrowing a substantial amount, in Sterling, repayable over ten years.

And then we had yesterday's announcement.

And that's what kept me awake last night.

Because I was wondering if I should go through with the deal.

And that's for two, very related, reasons.

The 2014 Referendum had no real impact on economic activity in Scotland chiefly because until a very brief period at the end nobody seriously thought the Nats had any real chance of victory. But this time it will be different.

And last time there was no suggestion (I would argue unrealistically) that Scotland's currency would not continue to be Sterling. But this time that will be different as well.

And that will have consequences. There is no sentiment in Business. If I am lending money I factor in the possibility of not getting it back. ,At least in the rate of interest that I charge but ultimately in my decision as to whether to lend at all.

Although I personally am a court lawyer, my business derives a very substantial part of its income from property work.

I recall, far from happily, 2008 and the years that followed when the property market ground to a halt because mortgage funding became so hard to obtain. My own firm only escaped redundancies through the good fortune of staff leaving for unrelated reasons. Many law firms were not so lucky. More than a few collapsed altogether.

I don't want to go through that again but I fear we now will. If the Pound Sterling is abandoned in favour of a new currency (the only realistic option) nobody will know what that new currency is to be worth. The Nats might claim it was worth the same as Sterling but that's not their decision but a matter for the markets. The idea of a peg is risible. Don't ask me, read the White Paper. I would suggest a Pound Scots would logically be worth less than the Pound Sterling but that's not the point. The point is that nobody will know. So who is going to provide Sterling borrowing when within three or four years they won't know the Sterling value of the assets borrowed against or the ability of any Scottish based business or individual to repay?

And that's very bad news indeed if you're in my line of business.

And then there's that personal borrowing. If Scotland becomes independent, we might just be able to increase our private fees to compensate for the devaluation of the currency in which they are paid. People will always need lawyers. But another big bit of our turnover comes from Legal Aid. Setting aside for the moment whether a £15 Billion deficit might make any Legal Aid scheme unaffordable altogether, on any view, it being Government money, it will be paid out in any new currency. And that's a big issue. For my borrowing is still going to be repayable in Sterling.

Now, in the end, I decided to go ahead. Partly that's because I feel morally obliged to do so but also partly because I have substantial Sterling assets held outwith Scotland and currently earmarked for my retirement which I could, in an emergency, draw down to repay the borrowing.

But I'm lucky. Could I advise anyone without that insurance to embark on a business venture involving long or medium term borrowing in Scotland today?  I very much doubt it. That's not because I think we'll lose although I acknowledge that possibility. As I say above, there can be no sentiment in business. But even if we win, so long as there remains uncertainty, much of the damage I first outline above will still have occurred.

And believe me, this, if it is not stopped, is going to impact, soon, on real life. As any vote approaches, Scottish residents will struggle to get not just mortgages but car leases and credit cards. Because lenders will not know if they will be able to repay them.

So I have concluded not just in my own personal interest but in the interest of Scotland that Mrs May should stop it. Not forever, because if people are clear enough and mad enough then that's democracy. But that the requirement should be a clear and unambiguous manifesto commitment and a Holyrood election won on that basis. Neither of which the SNP currently has.

What would the Nats do? They'd moan of course (nothing new there) but where would they go with their moaning?  Nobody outwith Scotland would give a toss. And inside Scotland? There is no way a legal referendum can be held without a Section 30. So the Scottish Parliament, if it tried, would pretty soon be stopped in its tracks (by the lawyers, hurrah!). The Yessers might try and organise some sort of unofficial referendum outwith the purview of Holyrood but the rest of us would just leave them to get on with. So what is left?  What is left seems to be a ridiculous idea about of the voter whose mindset, if there is an eventual vote, will be "I would have voted against but now I will vote for because I was earlier denied an opportunity to vote against." That is the sum total of the basis of the various "threats" and "warnings" issued since lunchtime Yesterday.

I know I initially thought and wrote that Mrs May should play a bit of a game; ask for detailed proposals; set conditions unlikely to be acceptable; as John Rentoul of the Independent put it, "Not say yes but not say no, which is really saying no." But, as I say, damage to business confidence is already being done.

So, to borrow the Scottish colloquial, the PM should tell the FM where to go. For she has nowhere to go.