2026

 I left my office for the holiday at about 1.30pm on 21st December. I hadn't finished working but I was going to Court and not planning to return. It was only as I drove there that it occurred to me that every year since 1978 I had departed work on the last working day before Christmas. as I had just done, for the last time. For  next year I will be retired and, just to discourage any back sliding on that, no longer in procession of a practising certificate. 

However, for the moment, I am back to work on the 3rd and indeed have a quite important trial the next day. My only business emails during the holiday have indeed been emails from that client advising as to lines of cross examination in that matter, most of which are irrelevant, at least one incompetent and even avoiding these pitfalls, others positively lunatic in the cause of securing his acquittal. I'll reply on the 3rd but that is one aspect of the job I will not be missing come Christmas 2024.

Anyway, when I left the office on the 21st I took with me a box of work to be done "over the holiday". I even took it in to the house when I arrived home on that day putting it down on the floor ever since. I'll do it eventually, probably on the evening of 2nd January. It'll still have been done over the holiday, if only just. 

I can't honestly explain the reason for that being anything other than lethargy but that is hardly the worst of the seven deadly sins. Indeed it isn't even one at all. Although sloth is, but who uses the word sloth nowadays? 

The other thing I had resolved to do over the break was to write a blog but, until now, I haven't done that either. And for reasons more complex than my unattended box of work. I had no real idea what to write about.

There are accepted forms for Christmas writing about politics. You can simply reprise the previous twelve months. Or you can draw on that period's unresolved issues to predict how they might play out over the year ahead. Or you can just ignore the past year and predict ahead anyway. And in doing to assert your own politics. But that's been done in spades by professional writers ranging in views from "We will finally see the benefits of Brexit" to "The treatment of Jeremy Corbyn will yet cost Labour a landslide." Neither of things will come to pass but people have to make a living, so, particularly at Christmas, they should be left to get on with it.

In Scotland there have been a few of these similar pieces, mostly themed around "Alright, the SNP are going to get gubbed at the General Election but the cause of Independence is not dead," This kind of ignores the fact than in democracies elections are quite important events but.....it's Christmas. The other side, my side, have been quieter, appreciating that patience is a virtue, although if you were so inclined you might have been tempted to inquire that if the SNP might yet retain 20+ seats then where exactly are these seats?  But it  is, I remind myself, Christmas.

So what would I write about. At all?

It won't be 2024, for that's been done, But it won't be 2025 either. For I suspect that will be quite a boring year. No. my interest is 2026, May in particular, The date of the next Scottish Parliament election. 

The SNP. in office for nearly thirteen years now have completely run out of ideas about the Government of Scotland. They never were that much possessed but, under Salmond, they did at least have some. Not least demonstrating that they could govern Scotland as competently as the Labour Party. Which, between 2007 and 2011 they did, and earned their electoral reward. But more recently they have failed in that task. And Labour is reaping the fruits of that. But despite the manifest talents of Jackie and Anas, not yet sufficiently well in Holyrood polling at least. 

You see public services in Scotland are a shambles but Labour's alternative, beyond the rather abstract idea of making them "more efficient" is non existent. We are, for example, also in favour of a National Care Service, just not the one promised, but now pretty much abandoned, by the SNP. We want to "improve" Education provision but not to the extent of abandoning the "Curriculum for Excellence" which seems to me to be a large part of the problem but which, whisper it, was developed under our own Party's stewardship before 2007.  I could go on,

I am no Blairite but the 1997 landslide was on the back of two different things coming together: the Tories having run out of ideas and we, on the other hand, having new ideas, The new ideas were not an afterthought, But currently, in the world of Scottish Labour, it is assumed they can be. 

However they can't be if we want to win not just in 2024 but in 2026.

Happy New Year when it comes.

It takes two to ceasefire

What is happening in Gaza is horrific. Even accepting that Israel is attempting to minimise civilian casualties, the Israelis themselves concede that there have been and will be significant civilian casualties. 

So it is understandable people want this to stop. And think the best way for that to come about is for there to be a ceasefire. Keir Starmer is coming under internal pressure to make that the declared position of the Labour Party. Prominent Party members, including our leader in Scotland have already made personal calls to that effect.

Except, in truth, they are only making that demand on one side, the Israelis. IF Labour was in power and IF we had any influence on matters, the best we could do is call on the Israelis to cease firing. That might just have some effect, particularly if similar calls came from other major western governments. But it would have no effect on Hamas. And that's why this whole ceasefire call is a complete blind alley. If Hamas was prepared to release the hostages and undertook to stop lobbing random missiles in to Israel then there might actually  be the basis for a ceasefire. Except they are unwilling to do either of these things.  Hamas not only started the current war, they wish it to continue. 

And so long as they wish to continue fighting Israel then inevitably Israel has to continue fighting them.

That's the problem. The UN Secretary General was right when he said the 7th October events cannot be seen in a vacuum. But Hamas cannot be seen in a vacuum either. They do not want peace on any terms other than the complete destruction of Israel. Yet that is clearly something that could never happen. Nine million people live in Israel, they are not going to go away voluntarily and it is, on any objective view, never mind the "merits" of such a development,  impossible for Hamas to achieve their removal any other way. Yet Hamas by it's very nature has to insist that this outcome will be achieved some how, some day. And to, literally, keep fighting for it. 

So a ceasefire will never be acceptable to them. A humanitarian pause in hostilities perhaps but never a ceasefire. I repeat, those calling for just that ignore this reality.

The Israelis have clearly decided that not just 7th October but the potential of future 7th Octobers requires to be dealt with militarily now. And they are dealing with a foe whose most basic demand could never be conceded by Israel as the basis for any kind of negotiated peace. Yes, there could and should be a two state solution to the Palestine issue but that is no more wanted by Hamas than it is by the most fanatical of West Bank settlers. That's the reality. Hamas are a major obstacle to peace. They need dealt with at some point. A ceasefire doesn't change that. It only postpones that reckoning.

Starmer sees that. So should others

May 2026

I've kind of stopped blogging. You might have noticed that. Principally this is because I mainly blogged in the past to outline arguments against Scottish Independence and that ship has sailed without any other lunatic idea appearing over the horizon. So why bother? 

But I retain an active interest in politics. So would like to have some continued readership for my blog. And that's why I write tonight about the Scottish General Election in 2026.

They say the best chess players can think five moves ahead. I'm not much of a chess player but, with due modesty, like to think of myself as someone who can think a few political moves ahead.

Now, in truth, even the best chess players don't really need to think these five full moves ahead. For their opponents next move is probably THIS, in which case they will have already decided to do THAT. And for two or three other moves whatever. Unless their opponent decides to do something unexpected, which might be a masterstroke or simply a mistake. But, either or any way, these are the rules.

And the rules of the political game are ultimately as iron. 

There is not going to be a UK General Election until Autumn 2024. The Tories are going to hold on as long as possible in the hope something will turn up but Autumn 2024 is as long as is possible. Beyond that point their worry about differential turnout is cubed by differential turnout in the depths of Winter. 

And the Tories will lose. That's a conclusion not just reached by current polling. They themselves have essentially given up, barring "events". As, with benefit of the memoirs from a much better group of Tories, they had done so at least a year before the 1997 Election.

And at that 2024 election, the SNP will suffer a considerable reverse. In my view being likely to being reduced to the second Party in terms of Scottish seats, even possibly the third. But let's give them their best conceivable result. Still the largest Party but 20 seats down. That will be a complete game changer. 

Partly this is because people forget (or choose to forget) the 2017 General Election. The loss of 21 seats then severely dented the momentum of Scottish Nationalism. They had long since decided they wanted another go at a referendum but even they then went quiet on the matter for a time. Not just because everything said they would lose again but also because such a demand lacked all credibility. How much more so in the aftermath of a significant 2024 defeat? What happens then within the SNP might be usefully the subject of a different blog but it would surely involve Useless departing the scene in favour of Kate Forbes and the Greens returning to the political wilderness. And that's even without anybody ending up in the jail in the meantime.

But that's just me thinking three or four moves ahead. Let's go to five. 

Labour will win in the UK in 2024 on the basis of no increase in current levels of income tax. That seems pretty certain. But in Scotland we already pay higher rates than the rest of the UK. This is currently, politically, justified on the premis that the Tories are not taxing enough. Forget for the moment whether that is true. It remains a defensible argument between a Tory Government at Westminster and a Nationalist one at Holyrood. But it is not conceivably a defensible argument between a Labour Westminster Government and a potential Labour Holyrood one.

So here is my fifth move ahead. Labour will fight the May 2026 Election in Scotland based on cutting Income Tax in line with the rest of the UK. "Close the Foreign Embassies, stop subsiding STV, shut down the quangos" Never mind whether the economics of this add up. Let the Nats defend them. Unless of course Kate Forbes, a formidable opponent, has already been one move ahead of us.  

A suggested letter

I have a friend, Andrew Nicol who is, or at least was, a Scottish novelist. I however knew him in another capacity, as a political journalist. Away back, I was so determined to get him to write a sequel to his novel, "If you are reading this then I'm already dead" that I wrote the first chapter for him myself. 

It did not persuade him and since then I have abandoned literary pastiche. 

But tonight I am writing again in the name of a Scottish novelist who, no disrespect to Andy, is of somewhat greater literary renown, J.K. Rowling.

It is not an attempt at the eighth Harry Potter novel or even an attempt to finally, and surely, get Strike and Robin together.

It is an simple suggested letter. Written by J.K., who I have never met, to two people I do know. One by reputation only but the other since I "knew his faither".  Copied in to one of my best and surest comrades. Enough introduction

Hogwarts Tower 

Edinburgh          

11th June 2023   

Dear Anas and Keir,

I trust this finds you both well.

As a long since supporter of the Labour Party and opponent of Scottish Independence, I was delighted to learn of the forthcoming by-election in Rutherglen and Hamilton West. offering a significant opportunity to strike a blow against the SNP, and have been thinking of what I might do to assist.

With due modesty, I would clearly be in a position to offer you a substantial financial contribution, as I have done in the past,  but I understand that money is unlikely to be an issue here. So I thought I might offer something more. 

While I never sought this, I appreciate myself that I have become something of an "international celebrity", My appearances on public platforms attract disproportionate, in my opinion, attention. But they nonetheless do. So my suggestion therefor is that I should make such an appearance at a public meeting to support of your, indeed our, candidate in Rutherglen. I would propose to say no more than encouraging Scotland to play its part in removing the Tories and securing a Labour Government

The event would need to be managed but, with due modesty, would be likely to appeal not only to many members of the local electorate, the important people here, but indeed to a much wider national, indeed international audience. But in some ways ignore the latter. The former are the key players in what I appreciate is likely to be a significant contest. If I can add but a few votes to our tally, I would be privileged to do so. Again, with due modesty, I think that is a role I might play. 

So, subject to my own commitments, I am at your disposal to speak at a place and time of your choosing.

I appreciate that this offer is in itself likely to be of assistance to our cause so I have taken the liberty of copying this letter to the Press Association. 

With every best wish,

See you in Rutherglen,

Jo.

To: Anas Sarwar MSP

The Right Honourable Sir Keir Starmer MP

cc. Jackie Baillie MSP. 

 

Is it over?

The polls remain stubbornly good for the SNP. Yes, you read that correctly. Their vote has taken a dent but it has not collapsed. Were there to be a Holyrood election tomorrow they would almost certainly remain the largest single Party, albeit, even with the assistance of their gerrymandering colleagues in the Greens, somewhere short of an Independence majority at Holyrood. Not that this matters anyway for the road to Independence does no run through Holyrood alone. 

Nicola Sturgeon's "brave" decision to ask the Supreme Court to deliver their conclusion to that effect expressly was her parting gift to the SNP. That and a campervan.

It has to be conceded that the prospect of Independence has been a leitmotif through Scottish Politics since 2011. Cameron thought to kill it by conceding a referendum but the Nats came closer in that event than anybody ever considered likely and, in its aftermath, rolled up the large but significant losing minority behind their banner in a formidable wrecking ball. Wrecking the old Scottish Labour Party, ludicrously complacent in its sense of entitlement, in the process.

But in truth 2014 took place in just about the most favourable circumstance possible for the SNP. They could choose a single year in the recent past (not the one immediately before the referendum right enough) to make a just about plausible case that independence would not inevitably lead to the slashing of public expenditure. They could insist they'd keep the Pound Sterling against all evidence to the contrary and portray UK denials of this as "just one more piece of evidence" of English perfidy. They succesfully created the ludicrous illusion that Independence could be grafted on to Devolution with little more than the expenditure of, in Government terms, small change. And as to the border, well if there was effectively no border between the UK and France, since both were in the EU. why would there possibly be a border between Scotland and England? 

But the real genius was not in carrying that off that in 2014, it was in getting people to ignore the fact that within two years this was all proved to be nonsense. That to borrow the phrase of Theresa May "Nothing had changed,"

But never mind that, it also ignored the not unimportant fact that there had been a referendum! And they had lost. Not narrowly, as they insisted, but quite decisively in a binary choice. And that they themselves quietly conceded that the reason they had needed the "Edinburgh Agreement" to have a referendum at all was in the second word there. And that prospect no longer existed. 

But all credit to the smoke and mirrors that has kept this on the road. Even, to some extent, still is. 

But I think this is all coming to an end. That's not just based on the polling or that Useless has nothing like the political skills of Salmond or Sturgeon, although patently he doesn't. It is simply that they have nowhere to go. 

When Alex Salmond set up his vanity project of the ALBA Party, its main selling point was that the SNP, through their elected representatives should be doing "more" to advance independence. There has however been a deathly silence as to what that more might be. The only substantive proposal of any sort seems to have been the suggestion that The Stone of Destiny shouldn't have been sent to London for the Coronation. I'm not entirely sure what this, even if carried off, would have achieved?  In truth, neither are they. "You can't have our Stone unless we have another referendum?" You are reminded of Monty Python and the Holy Grail. "Strange women lying in ponds distributing swords is no basis for a system of government."

There is nothing more that can be done.  The strange period of Scottish politics since 19th September 2014 is over. Scottish Parliament elections cannot and will not constantly be run as gigantic opinion polls on whether the Scottish Government should write a letter demanding to have another independence referendum. Westminster elections in Scotland likewise. Devolved Scottish Parliament elections are about who should govern devolved Scotland. In health, education, transport etc. etc. does anybody think that is currently being done well? And Westminster elections are about who should govern the UK. That will, at 18 month intervals, over the next three years, become apparent in spades. 

So it is over. The rest is just process. 

Institutional Capture

The mess the SNP Scottish Government has got itself in to on Gender Recognition Reform is well documented and the reasons for that also well documented. 

In advance of the legislation they gave in to those with loud voices while others were not particularly interested or even noticing. Even if they had been asked. Which they weren't. 

Thus, the idea that the current Gender Recognition process was somehow traumatic or humiliating was established at an early stage as a given. Without any real evidence in support of that. That there were insufficient resources to gain a diagnosis of gender dysphoria was therefor written off as irrelevant because it didn't matter anyway. It would still be "traumatic and humiliating" even if it were the doctors willing to provide a diagnosis waiting for patients rather than the contrary. "Why?" remains the question never asked. Because there had been institutional capture. If you consult only those of a predetermined view, and nobody else, then you inevitably end up with their predetermined view as your own. 

Now, in the marketplace of twitter, that has led me in to allyship with women of strongly feminist persuasion. But tonight I may be about to fall out with them because I fear, in a different context, we may not agree. 

For the proposals to abolish by trial by jury for sexual offences betray a similar institutional capture. 

It proceeds upon a consultation on this matter headed by Lady Dorrian. 

But let us look at who sat on that consultation. The Judiciary (five Judges or Sheriffs) and their support team from The Scottish Courts and Tribunal Service (another five). Fine. The Polis and the Crown. Fine. Some legal bureaucrats from the Scottish Government and relevant agencies. (Again fine). And, finally three representatives of the defence. Again, up to this point, fine. All professional players with an informed view, even if I might not agree with their individual views. 

But then what happens? We need some lay representatives so who are they. One person from Scottish Women's Aid, one from Rape Crisis Scotland and one from Victim Support. And that's it. 

I respect the work of all three organisations but they hardly represent the totality of opinions here, Where was SACRO (The Scottish Association for the Care and Rehabilitation of Offenders)? Where was Justice or any other organisation involved in preventing miscarriages of Justice? Where was anybody to contest that the issue in rape prosecutions was not that 50% of all those accused of rape were acquitted but rather that 50% of people innocent of rape had been prosecuted at all? For that had been the verdict of a jury in each case. And, for what it is worth, where was the space for the conclusion of the defence bar  that, out of external pressure, the Crown themselves are prosecuting rape cases they know have little prospect of success.

I speak with some experience here. Rape is a difficult crime to prove. It involves a crime to which the complainer might have approved. In a way few complainers might ever have conceivably approved to being stabbed or robbed. 

But I want to choose another example Simple theft. If I was sitting on a jury assessing a person complaining of theft, I would undoubtedly give greater credence to someone who reported their loss five minutes after they knew of it rather than five years later. That would not be a theft "myth" other than it would be any other kind of "myth". It is simple life experience. Yet it is the position of those allowed privileged access to the Dorrian review that to hold such a view about an alleged particular type of crime is unacceptable. Just like suggesting that a man in a dress is not really a woman is equally unacceptable, (Sorry sisters),

Likewise and more specifically, I most certainly do not hold the view that rape must also involve other  physical injury but if someone gives an account of events, alongside the rape,  that would inevitably, have occasioned physical injury, and yet there is no such evidence, well I do think that might inform my decision making on credibility. There is equally no evidence of "myth" involved in that process

But even Lady Dorrian had to conclude she was faced with divided opinion on abolishing jury trials for serious sex offending. Quite how divided is a matter on which Her Ladyship remains silent but if it did not include the vast majority of lawyers involved then I suspect I am equally the Shah of Iran. 

And yet. 

The Scottish Government proposes to press on and do so. Not as recommended by The Lord Justice Clerk, as they claim, (for it wasn't) but by post event lobbying by the very lobby groups that sat on her consultation. And, in the process, managed to keep the prospect alive. Institutional capture yet again.

And while we are at it, if you consider the responses of complainers/victims, their main issue about the system is delay. I agree, But, somehow, this ends up in second place to them needing more, publicly funded, support by the very third sector organisations proposing that, Far from it being for me to criticise the Lord Justice Clerk but, in her position, I might have suggested that their presence in the room was to assist potential victims of crime rather than to find reasons to line their own pockets. Instead everybody else seems to have signed this idea off with a sigh,

I am quite a strong advocate of much else that is the current Bill. "Not Proven" should have been long since done in. Reducing Juries from 15 to 12? I shrug, even while thinking that doing so to bring Scotland in to line with England is an odd decision by...... the SNP. 

But on removing juries I have never seen a more united legal profession. It is a fundamental part of our system that you cannot get serious jail time without somebody beyond lawyers deciding that. That is the conclusion of defence lawyers who are free to speak our minds. Male lawyers and female lawyers; unionist lawyers and nationalist lawyers, Bur also prosecutors and judiciary who can't speak publicly but can speak privately. 

For the SNP? To paraphrase John Wayne, this should not be "Remember the Alamo!" but rather "Remember the Gender Recognition Reform Bill."

Here is hoping Angela Constance will. For this time Alister Jack won't be able to ride to the rescue. 

Tides

Happy May day!

On Thursday night past I went to the selection conference for the next Labour Candidate for the Westminster constituency of Cumbernauld, Kilsyth and Kirkintilloch East. In some ways it was an absurd event. Speeches and then questions and then a vote. One member of the audience had decided that she was going to ask the same question of every candidate. "Was it acceptable that people who were working had to resort to foodbanks?" A fair point, except that having announced that she would ask the same question of every candidate, she asked it of one candidate who had made "it is ridiculous people who are working have to resort to foodbanks" a central element of her, already delivered, speech. But the same question had to be the same question, even as the chair knew it would be the same question and yet called it again in preference to others in the room with their hands up. 

And that's not even to get me started on the guy who suggested to one aspiring candidate that the solution to the NHS was more private provision. An arguable point hardly one you would anticipate being advanced by a member of the Labour Party. 

As to the candidates themselves? THey were genuinely all more than adequate to for the position they sought. not just of Labour candidate but Labour MP. Mind you, one of them thought it was a point in his favour that he was proud to have the support of ASLEF, the CWU and Unite. He might as well have sung "Oh, Jeremy Corbyn!". Again a view but hardly one to endear him to anybody who knew the remotest thing about the membership of Cumbernauld, Kilsyth and Kirkintilloch East CLP. Or indeed Coatbridge, Chryston and Bellshill.  Unsurprisingly he got gubbed. 

Since this was a "twinned" selection, gubbed by Frank McNally, who will be our candidate for Coatbridge, Chryston and Bellshill. And almost certainly the MP for that seat come the next election.

But my point here is not about Frank's seat. It is about my own. Which was regarded as the consolation prize. For while we should get Coatbridge etc back from the Nats, indeed we did 2017-19, Cumbernauld etc is supposedly a much harder nut to crack. 

Except for something said by the candidate I voted for on the night, Katrina Murray. The old constituency, Cumbernauld and Kilsyth,  was always a bit marginal between us and the SNP. But when the Kirkintilloch East bit was added in it became, at the time, altogether safer. When Greg McClymont succeeded Rosemary McKenna in 2010 he could not unreasonably have concluded he had a seat for life. Except that he went, in a single election, from being 14.000 votes ahead of the SNP in 2010, to being 14.000 votes behind five years later. Through no fault of his own. A swing is a swing. 

But as Katrina observed on Thursday, when you are swept in by a rising tide, you are at least as easily swept  out again as that tide recedes.

The press continue to flog the idea that Scottish Nationalism remains a live thing. And, in advance of that thesis, to maintain that while SNP might suffer some losses to Labour in the 2024 General Election, it will continue to be a live thing. I have written elsewhere why that reporting brings with it a substantial element of self interest but that is not my point  here. It is that the next General Election will not just be about Scottish Labour, if we appear to be on the way to being the UK Government, and particularly if the Nats stick with Useless, picking up 10 to 15 seats from the SNP. Rather it might easily be about us picking 30 to 40. Including Cumbernauld, Kilsyth and Kirkintilloch East . As I readily concede the Nats did to us the other way round in 2015. As even we did not think that possible, in much safer seats  than Cumbernauld etc,  before that traumatic event. For first past the post is brutal for the SNP. Just as at a certain level it has been brutal for us since 2015. Two facts not to lose sight of. In 2015 we still got 24.3% of the popular vote but only one seat out of 59. But in October 2074 the SNP got 30.4% and 11 of 71 seats, while Labour, with just 36.3%, less than 6% ahead, got 41. Because their vote was everywhere, whereas ours was overwhelmingly just in the central belt. Indeed the Tories with considerably fewer votes than the SNP nonetheless got more seats (16) because their vote was also concentrated, albeit, obviously, elsewhere

Could that happen again? Perhaps at least that possibility should be starting to be reported? That the SNP seats might melt away as rapidly in 2024 as comprehensively as ours did in 2015. Perhaps it finally will be after the Rutherglen by election? Bring it on.

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?