Not black, not white, but mingling motley. If there was one lesson powerfully to emerge from the legal-political debate before the Edinburgh Agreement, it is that Scottish politics is apparently constitutionally incapable of dealing sanely with legal complexity.
In the Unionist corner, we had Ian Davidson, Jim Wallace and their ilk erroneously asserting with knock-down certainty that the referendum was clearly ultra vires without Westminster's say-so. In the nationalist corner, every effort was made to ignore the more nuanced legal realities facing Scottish parliament and ministers, projecting instead an air of brisk confidence, giving every appearance that Holyrood's competence to hold the poll was beyond legal question.
Neither of these positions, and the apparently confident, polarised, black-and-white absolutism of their respective claims, reflected the objective ambiguity of the legal situation around the independence poll, susceptible to different constructions in the absence of any binding precedents on the key arguments. None of the key political actors were willing to own up to the shoogliness of their legal positions, and the political solutions which were called upon to resolve those legal challenges.
Last week's agreement on the draft section 30 order may have done the business, but throughout, the public have been treated like numpties by our politicians. Rather than being addressed like adults, able to understand that in law as in life, we have to deal with ambiguity - particularly when we're breaking new ground, whether by holding a referendum on independence under devolution, or dissolving the state which has entered into European agreements these last decades - we've been smoothly manipulated in the interests of partisanship. Complexity denied, contingency disavowed, both pro-nationalists and those who oppose independence assumed attitudes of bullish certitude. It's understandable that many folk felt at a loss about whose categorical claims to believe.
Plenty of parties are complicit in this, not least our print and broadcast media. Complexity and indeterminacy are ruthlessly pathologised by journalists' glib demands for simple answers, and the shellacking politicians will inevitably receive if they are unable to claim dead-certainty in defence of their positions. I sympathise a great deal with politicians, keen to avoid being put through the wringer, who marshal what legal experts they can find, and march out into the glare of the cameras, apparently full of certainty and bravado. Emphatic political performances may not eliminate the legal uncertainties you're determined to sideline, but they can at least clear the cawing flock of hacks from off your back. Overall, though, denying the complexity of your legal situation doesn't strike me as a wise strategy. Sometimes you might get away with it, but uncertainty denied has a nasty habit of bubbling up from the cthonic regions which you hoped to consign it to, leaving you looking daft, or worse, disingenuous.
The Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh, Neil Walker, has an important piece over at the Scottish Constitutional Futures Forum this afternoon, "Beyond the Black and White of Legal Advice", on the extent to which the legal debate on Scotland's position in the EU is beginning to sound an alarming echo of the discussion around the referendum earlier this year: It is a wide-ranging piece, but after this week, I find myself very much sharing his core concerns about how we deal with these tricky legal topics in Scottish politics. The lesson? Uncertainty which cannot be eliminated, certainly shouldn't be avoided.
"Alex Salmond has done himself no favours with his lack of candour on the question of legal advice on the pathways to EU membership, and by the complacent assumption which seemed to lie behind this. His attitude, like that of some of his political opponents, has contributed to an atmosphere in which the question of a right to continuing or renewed membership is seen in unhelpfully black and white terms. Either future membership on the part of an independent Scotland is ‘nae bother’ – something which will happily unfold according to the nationalists’ own agenda, or it is a path strewn with dangerous, unpredictable and perhaps insurmountable obstacles. Regardless of the legal niceties, the true state of affairs it is clearly neither of these extremes, but something in-between."
Read the whole thing on the Scottish Constitutional Futures Forum here.