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.