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?