Section 29.

One of the things common to activists of all Parties is a forlorn hope that public engagement with politics during an election period  will continue beyond it. It won't.

There is a fair bit to say nonetheless about where it leaves all Scotland's Parties. That however can wait for another blog. I have five years. Instead I want to look at a far more important and (relatively) imminent realisation for the newly elected SNP Government. All the legal attention so far has been on s.30 of the 1998 Scotland Act but, all along, people should have been looking at s.29. It provides:-

"29(1)  An Act of the Scottish Parliament  is not law so far as any provision of the Act is outside the legislative competence of the Parliament." (my emphasis)

Now, what does that mean? It means what it says. While Holyrood might pass legislation on anything it likes, if that legislation is outwith its legislative competence it is not law.  So not only can it be ignored by private citizens, it also cannot form a legal basis for Ministers to instruct third parties to act in accordance with its provisions. Even if they would be happy to do so. For it is not law.

Practical example  Come March 2023, further to the passage of a Scottish Independence Referendum Act on the basis of the draft Bill the Nats published in March this year, the Constitution Minister writes to the Chief Executive of Aberdeen City Council instructing him or her to locally organise an Independence referendum on 16th September 2023. The Chief Executive simply writes back stating they'll be doing no such thing for the Scottish Independence Referendum Act 2023 is not law.   What happens then? The Scottish Government takes the said Chief Executive to court seeking an order for "specific implement" to instruct them to get on with their instructed task.  But the Courts would support the Chief Executive, for Ministers would be relying, for their instruction to him or her, on something which is not law.

Why am I prompted to point this out? Because it is what Michael Gove obliquely said on "Marr" this morning. Sturgeon's plan is to pass a Bill and then has assumed that the UK Government would use the provisions of s.33 of the Scotland Act to refer the matter to the Supreme Court. Even if she (almost inevitably) lost there, she would at least have (another) grievance. But Gove indicated the UK Government had no intention of taking anybody to court. Why need they? If something is not law it is not law. It is not "law until declared by a court not to be law". It is not law. That is what the actual law expressly says. 

And why would it not be law?

Well that's back to s.29. Subsection 2(b) this time:- [if]

"(b) it relates to reserved matters"

And reserved matters?

For that you need to go to Part 1of Schedule 5 of the 1998 Act.

"1. The following aspects of the constitution are reserved matters, that is—

(a)the Crown, including succession to the Crown and a regency,

(b)the Union of the Kingdoms of Scotland and England,"..........

So that is that. Now there is never a point in ignoring an argument that the other sides lawyers might make in my hypothetical litigation The Scottish Ministers v Aberdeen City Council, so there is one. That would be for Scottish Ministers to argue that the referendum their Government proposed was only advisory. That it wouldn't actually make any difference whatever the result. That argument might even succeed (although I doubt it) but if it does? Why should anybody opposed to independence then bother to take part? After all, we already have had a binding referendum in the sense that both sides agreed to accept the result. Even if one side subsequently didn't. So the Scottish Government being "advised" that some people wanted Scotland to be independent (almost certainly by fewer than the 1.6 million who voted Yes in 2014) would be an exercise in the utmost futility. No matter how many flags (and newspapers) it sold in the process.

Reasons to be cheerful

Well, on the face of it there is little reason to look forward to next Thursday's election with any great enthusiasm. 

The SNP are undoubtedly going to be the largest Party by a country mile and, assisted by their mini-mes, The Greens, gaming the system, it would appear unlikely that there will not be a majority for asking for a second referendum at Holyrood when all the votes are counted (ludicrously) next Saturday. Quantum valeat.

Anas needed more time but, thanks to the typical behaviour of my own Party since 2007, was not given it. I'll have more to say about that after the election.

But, of course, things are not quite as simple as that.

For, whether we like it or not, the Nats have managed to run this election as a referendum on whether to have a referendum. (Although interestingly that part of their message has been much downplayed externally in their later campaign literature, no matter what their private messaging might be to their activists sent out to deliver these leaflets). 

However if we are having a referendum about a referendum then who wins most seats is less important than who wins most votes.

And that is the first reason to be optimistic.

There is a clear pattern for Scottish opinion polls to over estimate the nationalist vote. In 2016 the last ten polls gave an average vote share for the SNP in the constituency ballot of 50.8%. They actually got 46.5%. A smaller share than predicted in even a single poll. On the list it was the same. Ten poll average, 44.4%, actual 41.7%.  And then look at who came second, the Tories. Not one poll on the constituencies gave them a constituency share beyond the teens, not one: they actually got 22%. In fairness one single list poll gave them 20% (exactly). A high point until....eh....polling day, when they got 22.9%.

So, if that pattern is repeated, the chances of the Nats and their miscellaneous allies or supposed allies crossing the 50% barrier looks pretty small on either ballot.  And in terms of the moral, as opposed, in truth, to the undisputed legal, authority of  the Westminster Parliament just to say no, that will be important.

The second thing giving cause for optimism is turnout. In two senses. Firstly, I suspect it was part of the Nationalist calculation in opting to hold a vote while the pandemic was ongoing that their far larger activist base would enable them to disproportionately mobilise a postal vote from their established supporters. But this does not seem to have worked. The take up of postal votes has been less than all Parties anticipated and there seems no particular pattern as to who has secured one. So a lot of people are going to have to vote on the day. A day my phone predicts to be very cold and very wet; in an election with an apparently forgone conclusion and, lets not forget, still during a pandemic. Now, it may just be my impression but lower turnouts continue, I think, to favour those disproportionately interested in politics, certainly, but also those more able to travel to the polling stations in relative comfort. Neither of these factors assist the SNP.  I would also encourage those glued to Nicola's daily admonitions not to leave the house to listen to her message. 

But there is another way in which turnout it important and that is where I come back to my moral authority point. Any result arising from a very low turnout lacks legitimacy in making wider "demands". It is too easily not exactly forgotten but not exactly utilised either by the "unionist" side that when we won in 2014 the losing side still got 1.7 Million votes. If they perhaps fail to get even 1 million on Thursday (they got just 1,059,898 on a 56% turnout in 2016,)  it might provide evidence to the  flag waving marchers that this demonstrates a country in a state of outraged constitutional fervour but I doubt it would convince any reasonably objective external (or even internal)  observer. Let alone Boris Johnson. 

But there is a a third and final reason to be optimistic. Much attention has focused on the unfunded promises in the SNP manifesto. Free this, that and the other; massive supposed increases in health spending etc. etc. etc. But when little of this is delivered they will at least have their usual excuse. That they were denied the resources to do this by "Westminster", never pointing out "Westminster" was not consulted on whether they were prepared to raise taxes beyond Scotland to fund it. But on another matter they won't have that excuse for a lack of delivery, at least internally. The very raison d'etre of the SNP. Independence.

There is not going to be a section 30. There is not going to be a referendum on a proposition that would survive challenge in the Supreme Court. There are not going to be Mr Salmond's ludicrous "negotiations", for nobody  would be interested in being on the other side of these negotiations. International opinion is not going to be interested, let alone mobilised. The EU is inconceivably going to intervene in the affairs of a non member state, even in the face of 200 people writing a letter to the Guardian. Don't forget that Holyrood voted to have a second referendum in March 2017. Did anything happen? 

Sturgeon has been lucky by events since. The 2017 UK General Election cast doubt on whether Brexit would happen and, when that was conclusively determined in December 2019, before anyone had time to draw breath, the pandemic arrived. 

But, crucially, even during the pandemic, in the face of no external demand at all, solely for the purpose of pacifying their own activists, the SNP leadership felt obliged to maintain that a second vote was imminent, pace Mike Russell and Angus Robertson that it could happen this year! And they then even published a "draft referendum Bill", sought by nobody at all who did not hold an SNP membership card. 

You can run but you can't hide from the deranged rabble that make up much of the SNP rank and file. By no means all of them have yet departed for ALBA, for they believe than can yet seize control of the Party they are currently in. Albeit for no more obvious purpose than it serves to have that under the stewardship of Ms Sturgeon. A reckoning is coming. I think that we can thus be confident that, not thanks to Thursday but to events in its aftermath, this is the last time we'll see Nicola Sturgeon standing for First Minister.  Or the last time she is daft enough to standing on the promise of a referendum.  For you should never make promises you know you can't keep. And by 2026 the issue might not just be a divided unionist vote but a divided nationalist one. And not just on the list. 

P.S. I'm not doing a prediction but seats to watch? Constituencies. Caithness; Perth North and South; Rutherglen; Coatbridge; Kirkcaldy; Motherwell and Wishaw. I predict Labour will take all of these. (For those missing the sarcasm, I don't) 

And on the list?  I think the Libs may do a bit better than expected. And the Greens not quite as well. And, much as it would delight me, I can't see Andy Wightman being elected