Devolution-max: SNP consolation prize or political hammer?

Locked in a peat-smoked bothy, worrying away on a particularly reluctant clod, I've been neglecting the affairs of the day.  We had an interesting YouGov poll on independence, which I intend to pull to bits for your interest tomorrow. Today, I thought I'd say a word or two on the latest pettifoggery and cavil surrounding the independence referendum. In the House of Lords during the main stooshie last week, the Advocate General for Scotland, Jim Wallace, was asked by Lord Davidson of Glen Cova...

"...if the Scottish Government produce contrary legal advice regarding the legality of the referendum, will the Government take the issue to the Supreme Court?"

Quoth the noble Lord of Tanktop in reply, with all of the odious obsequieties expected in that House...

"The noble and learned Lord asked whether, if the Scottish Government produce conflicting legal advice, it would be referred to the Supreme Court. As he knows, the reference to the Supreme Court would fall on any legislation. The whole purpose of this consultation is to try to avoid that situation so that any legislation passed by the Scottish Parliament is within the competence of the Parliament because provision will have been made for it. That is the way of progressing in a mature and less rancorous way. It is in everyone's interest to avoid any legal uncertainty."

Emphasis mine. While Wallace's colleague, Michael Moore, has said that the UK Government would not attempt any legal challenge to Holyrood legislation authorising a referendum. Wallace's statement, by contrast, at least still countenances the possibility. Given Moore's ditheriness, and the range of wrangling interests pulling the coalition this way and that, I doubt too much stock should be put in whatever view the Secretary of State happens to be entertaining today.  This was followed up by a piece in the Scotsman, in which Wallace kept open the possibility of litigation, to spike an SNP referendum, if the transfer of powers (with or without conditions) cannot be agreed between the parliaments. Wallace:

"said Attorney General Dominic Grieve would have a legal duty to consider a challenge to Scottish legislation if it was outside Scottish Parliament powers.  And while he fell short of saying he would take the matter to the Supreme Court, his stark language was seen as a clear signal that he would. He also warned that a third party almost certainly would make the challenge."

So three questions suggest themselves, one legal, the second two political.  Just what could Jim do, legally? What are the chances of UK law officers mounting a challenge to the Act, and if they do mount a challenge, who suffers politically?

First, the legalities. What powers do Wallace and the UK law officers enjoy? Under the Scotland Act, there are a series of legalistic hurdles new pieces of legislation have to bound over.  First up, a member of the Scottish Executive "shall, on or before introduction of the Bill in the Parliament, state that in his view the provisions of the Bill would be within the legislative competence" of Holyrood. I dare say Salmond will be able to rustle up one of those. Secondly, the Presiding Officer, Tricia Marwick, will also have to "decide whether or not in [her] view the provisions of the Bill" would be competent, and will receive independent legal advice. Assuming that the SNP's Bill manages to o'erleap these two potential obstructions, and a majority of the parliament support the proposal when it comes to a vote, the Bill still has to be presented to Lizzie Windsor for her "Royal assent". In the days of the old Parliament of Scotland, this was indicated by the monarch's proxy touching the Act with the royal sceptre. No such grandiose gestures these days. 

But here's where it gets potentially interesting, depending on Lord Jim's nerves. After Holyrood has passed an Act, the Advocate General (Wallace himself), the Lord Advocate (Frank Mulholland) or the Attorney General (Dominic Grieve) have a period of only four weeks in which they may make a direct "reference" to the UK Supreme Court, authoritatively to determine the Act's legislative competence before it is assented to by the monarch and is able to come into force. The upshot being that UK law officers would have to decide what to do with themselves within a month of Holyrood legislating for a referendum, and we'll all know when four weeks are up. Thereafter, we only have to contend with the prospect of a dogged lone litigant, who wouldn't have the luxury of starting proceedings in so exalted a tribunal, and like other cases, would likely take a couple of years to work its way up the Scottish judicial hierarchy of appeals before it reached London. 

So those are the laws.  What are the chances Wallace or Grieve will avail themselves of them? Given the UK government's very public, and very categorical insistence that Holyrood's independence legislation would be wi' oot a doot unlawful, superheated by rule of law rhetoric, it looks increasingly difficult for them to avoid suing. Having calumniated Nationalist brigands in Holyrood for reaving across the borders into Westminster's exclusive competence, and making off with a clutch of powers without so much as a by your leave, what self respecting proprietor merely shrugs, and sighs, and consoles himself. "Oh well, I have other powers", rather than hot trodding after them? 

There are also other relevant calculations. Say Jim sits on his brief and doesn't challenge the Act before the Supreme Court. Do we avoid a damaging legal challenge? Not a bit of it, with lone litigants still hovering and likely to challenge the law, arresting referendum progress. From a timing point of view, and the desire to avoid gloopily protracted litigation, an intervention by one of the UK law officers is just about the only way of being sure of avoiding judicial procrastination (apart from a successful section 30 order under the Scotland Act, to buttress Holyrood's powers). Not to challenge the Act makes is to permit a much more protracted obstruction of the process, and the UK government has to be frank with itself about that. 

The snag? Political, unsurprisingly. Specifically, how any such intervention would be received by the Scottish press and the public. At first sight, there is promising material here for the Nationalist. On the "legal" side of things, and the scope of Holyrood's legislative competence, most folk haven't the foggiest one way or the other. This being the case, it would be potentially tricky for Liberal and Tory Westminster politicians to characterise their vires "challenge" in a politically defensible way. "We shall fight to the last ditch, to uphold our interpretation of s29 of the Scotland Act 1998" is not a motto for heroes. It's also significant that the press have generally avoided even trying to cover the legal arguments in any detail. This seems unlikely to change. That being the case, there's a real risk that any legal challenge be seen as a purely technical pretext for Tory meddling. As we saw with David Cameron's sally and retreat, even the suggestion of tinkering or imperious treatment of Scottish interests prompted a scorching reaction. Imagine, then, what most folk would make of a full-blown court case launched by a Tory-lead government, pursuing a point of principle on an obscure legal topic controversy nobody will be emotionally engaged by?

On the other hand, for the Nationalist, things have changed. Despite Cameron's gawkish contributions, the coalition has full-throatedly argued its case that without fixing the devolved settlement, the SNP referendum faces legal challenge. The public may not have imbibed that point, but the hacks undoubtedly will have. Manipulative though they are being, the UK government's section 30 order undoubtedly provides a way out of this potential legal morass. However, the precise terms of Moore's Order in Council will have to be agreed not just by Westminster, but by Holyrood as well, which for all intents and purposes, now means the SNP majority.

What will it do? If the SNP reject Moore's Order, and their referendum Act is waylaid by legal challenges, either from Wallace or a member of the public, wouldn't the Nationalists be particularly susceptible to "told you so" stories, and a rather less sympathetic reading of their predicament? Isn't there a risk that Salmond looks rather absurd, if his cast-iron insistence that the referendum Bill would be competent is placed under much sharper scrutiny by Lords Reed, Hope and the other Justices of the Supreme Court? And what would the UK government do anyway? Leave the SNP twisting in the wind? Scheme up some intervention? Shrug? Despite the real difficulties which mounting a legal challenge would seem to cause for the coalition, with the UK government's change of tune, and aggressive challenge to Holyrood's legal competence to hold any referendum on independence or more devolution, a legal challenge must be a much less attractive political outcome for the calculating Nationalist than once it was.

It strikes me, however, that the coalition may have seriously blundered, and given Nationalists potential cover to reject his section 30 order and its conditions, while staying on the right side of public opinion and - egad - even pursuing a point of principle.  Say that the coalition insist on the terms of their draft Order, which would disallow any "devolution-max" question on a independence referendum ballot. We also know that "more powers" will be a popular (arguably the popular) option. The case for its inclusion will be significantly strengthened by various partisan and non-partisan, quoteable persons from across Scottish public life, who envisage greater devolution as an attractive alternative to independence, and who are persuaded of the virtue of asking about it during the referendum process. Say too that the SNP leadership are absolutely determined to have a "more powers" option on the paper, and refuse to endorse the coalition scheme. SNP rejection of the section 30 Order securing the legality of the referendum would be problematic if it looked partisan, surly or pointless. However, by trying to kill off devolution max, and confine the SNP to a "yes or no" referendum, the coalition have given the Nationalists a clear, credible and substantive reason for rejecting the Order. You can almost hear Alex Salmond now...

"The SNP is committed to representing the interests of the Scottish people. It is clear that a large section of our community wishes to be able to express their will on the Scottish Parliament taking on more powers. As democrats, we believe it is the right of the people to decide for themselves how they are governed, and that it is absolutely their right to have a "devo max" question on the ballot paper. David Cameron and Michael Moore disagree, and presume to tell Scots what referendums they can and cannot have, what questions they can and cannot answer about their lives and their futures. We disagree. That's why we cannot accept the Tory-lead government's attempt to impose their will on the people of Scotland, and why we will be bringing forward our referendum with two questions, one on independence, one on devo max, to give the people of Scotland their say on their future."

It would be profoundly difficult to cast this sort of reasoning as stubborn and purposeless obstructionism.  Now, it may be that the desire to see "more devolution" on the ballot will morph Moore's initial draft Order into a shape that doesn't require a simple "yes-or-no" independence question. If not, however, then devo-max need not just be a consolation prize for disappointed nationalist seeking independence. Given its popular support, it becomes a pretty effective political hammer with which to clobber the continuing inelegant machinations of the UK coalition on Scotland's constitutional future.