Schrödinger's womb

I've been traipsing after Michael Gove in his various - sometimes curious - parliamentary appearances on the proposed abolition of the Human Rights Act. The Tories are in a bit of bother. Mopping up after the majestically incompetent predecessor Chris Grayling, the new Lord Chancellor has the thankless task of marshalling the Conservatives' jury-rigged proposals to abolish the HRA - and to replace it with a British Bill of Rights - into some kind of defensible public shape. 

This morning, he was explaining himself to Helena Kennedy's EU Justice subcommittee in Westminster. And what remains clear after today's session is: devolution remains a big problem for the UK government's HRA repeal policy -- amongst many others. 

In June last year, Gove told MPs that "in this United Kingdom Parliament, human rights are a reserved matter." He has been rowing back on that decisive statement ever since. In December, he told the Lords Constitution Committee that human rights was "neither reserved nor devolved".

As Helena Kennedy recognised from the chair this morning, "one of the really tricky issues around all these discussions is connected to devolution." Is Holyrood's consent - and the consent of the Cardiff and Belfast - required either to abolish the Human Rights Act, and to introduce any British Bill of Rights? Former Met commissioner, Ian Blair, took up this line with Gove this morning.

Blair: "Some of the evidence we have received from some of the members of the devolved institutions has been really rather surprising. Quite striking. One that I will particularly quote from is from the member of the Scottish parliament, Mr Biagi, who made it absolutely clear to the committee that in his opinion - and in the opinion of his party - human rights legislation is not a reserved power. And as far as I can see, it is either a reserved power, or it is a devolved power. 

But that is not the position I think you took in front of the Constitutional Affairs Committee in December. And it is not the position that those bringing forward and through the House of the Scotland Bill took. 

But none of us - I think - can understand how it can be neither reserved nor devolved - which makes you feel a little bit pregnant. I mean, it is just not possible. It is either reserved or devolved. So -- my question to you is: do you agree that the consent of the devolved parliaments would be required for an application of -- for the introduction of -- a British Bill of Rights to devolved regions?" 

So what did the Lord Chancellor reckon? Gove doubled down on his strange formulation from the Constitution Committee last December.

Gove: "It is neither reserved nor devolved. But it is the case that any reform or change to the Human Rights Act is a matter for the Westminster parliament. The application of human rights is a matter for Scots courts and indeed, for the Scottish executive -- Scottish government. Within that, so -- um, um,-- it might be -- if you could imagine the state of permant pregnancy, then that's what we have. As for consent, we will consult on what we think is the best way of involving all the constituent parts of the United Kingdom in understanding the case for rights reform. But I wouldn't want to prejudge at this stage exactly how we might  do so."

So. Um. There we have it. "Permanent pregnancy." According to the Lord Chancellor, human rights are the Schrödinger's womb of British politics. If you are prepared to read between the lines of what Gove is trying to say --  you can detect a pretty hazy rendering of the argument I put here. Ish. Just about. If you squint, and peer through the bottom of the milk bottle. Gove's performance today underscores the point. In contrast with the Scottish government's straightfoward legal view - the Sewel convention is engaged by repealing and replacing the Act - the UK government remains in an awful guddle. And if this morning's Lords drubbing is anything to go by, it'll take all of his cunning to free the Lord Chancellor from devolution trap his government has unthinkingly blundered into.  

Pressed on whether or not the outcome of this process might not be an English, rather than a British Bill of Rights, Gove continued:

"I would hope that there would be a British Bill of Rights. But the one thing I will concede is that while I have many friends -- and there are many people who I admire in the Scottish National Party -- it is nevertheless the leadership of the Scottish National Party might want -- if you can imagine such a thing -- to view this exercise through a party political lens. Certainly, in the run up to the Scottish parliamentary elections. I hope we can encourage them to resist that temptation."

Temptation indeed. Heaven forfend.

Gove: human rights "neither reserved nor devolved"

Does Westminster need Holyrood's consent to repeal the Human Rights Act? This blog has been asking this important question since the general election. In June, Deputy Leader of the House of Commons, Therese Coffey, told Joanna Cherry that human rights are "a reserved for the UK Parliament and not a devolved matter," implying that consent for repeal was unnecessary. Later that month, justice minister Michael Gove reiterated this view, telling MPs that "in this United Kingdom Parliament, human rights are a reserved matter."

But there's a problem. If you rummage through the Scotland Act, you won't find human rights on the list of reserved matters. Indeed, Schedule 5 makes it crystal clear that human rights do fall within Holyrood's legislative competence. But what about the Human Rights Act itself? Schedule 4 of the Scotland Act protects the Human Rights Act from modification, amendment or repeal by Holyrood. 

This leaves us in a funny situation. Human rights aren't reserved to Westminster, but only Westminster can amend or repeal the Human Rights Act. Here's where the Sewel convention comes in. This rule of constitutional morality says that if Westminster wants to legislate about devolved matters, or wish to expand or curtail the powers of the Scottish Parliament, they must seek the consent of MSPs before doing so. The UK parliament remains sovereign. The Lords and Commons could ram through any changes they like over the objections of MSPs. But the convention is -- they won't. The UK government is sufficiently committed to this convention to transpose a version of it into the Scotland Bill. It cannot lightly be dispensed with.

So how does Sewel apply to HRA repeal? Should it be treated as a devolved matter, requiring consent - or a reserved matter, requiring none? Yesterday brought some interesting but largely overlooked developments on this score. Michael Gove appeared before the House of Lords Constitutional Affairs Committee. Questioned about the UK government's repeal proposals, the former Lord President of the Court of Session - Lord Cullen - put the question to Gove directly:

Cullen: "Is it accepted that the repeal of the Human Rights Act and the creation of a Bill of Rights Act would give rise to the application of the Sewel convention?" 

Reverse-ferreting from his earlier, much more bullish pronouncements in the Commons, Gove wibbled:

Gove: "I think: its an open question. And the reason why I hestitate to pronounce definitively is that we'd have to see what was in any given Bill in order to be absolutely certain as to whether or not a legislative consent motion might be required in any of the devolved legislatures."

Lord Cullen pressed on, as it became increasingly clear that Gove and his department still haven't fully contemplated the devolved implications of their repeal policy. In June, he thundered that "in this United Kingdom Parliament, human rights are a reserved matter." And in December? Wibble wibble.

Cullen: "Taking the matter at its most basic, legislation in regards to human rights is a matter which is not reserved, is that right?" 

Gove: "It is neither reserved nor devolved." 

Cullen: "So it is open to the Scottish Parliament to make its own provision for human rights, if it so chooses?" 

Gove: "The -- My understanding of the constitutional legal position is that only the United Kingdom parliament can amend the Human Rights Act. But it is the case that the application of human rights, by definition, differs in Scotland, as distinct from the other parts of the United Kingdom, because Scottish courts will interpret those rights consistent with Scots law and Scots legal tradition." 

Cullen: "What I'm driving at is, would the creation of a new Bill of Rights Act be something which would give rise to the Sewel convention, because it would enter an area where the Scottish Parliament itself could legislate?" 

Gove: "Well, I don't believe that the Scottish Parliament -- I, you know, stand to be corrected -- I don't believe the Scottish Parliament can legislate to fundamentally alter the rights architecture which the Human Rights Act has put in place. I think that is a matter for the United Kingdom parliament, as I understand it."

Hardly the most trenchant or confident analysis, you might well think. Reading his answers in the light of my opening observations, you can see what Gove has done here. He's right to this extent: Holyrood can't amend the Human Rights Act because Schedule 4 of the Scotland Act prevents MSPs from doing so. But the Lord Chancellor has precisely no answer to the point put squarely to him by the Scottish judge: human rights are not a reserved matter. The idea of a matter being "neither reserved nor devolved" is a nonsense, a muddle, and a confusion. 

Having airily dismissed the idea just months ago, Gove now concedes that legislative consent may be necessary, depending on the detail of his British Bill. The admission is significant enough on its own, but Gove's quibbling reticence on whether Holyrood will have to give the UK administration's Bill of Rights the nod is stonewalling, pure and simple. It is next to impossible to imagine any version of any British Bill of Rights which would not impact on Holyrood's legislative competence, and accordingly, engage Sewel. 

But Gove is a politician. You find playing for time in the beginner's kit. And when you find yourself lost and confused in public about something so basic? It is all you can really do. But time is running out for the Lord Chancellor. Nicola Sturgeon has already said that "the SNP Government will invite the Scottish Parliament to refuse legislative consent to scrap" the Human Rights Act. The Sewel stramash isn't going away. In his recent Tim Yeo libel judgment, Mr Justice Warby memorably observed in that "when a fish wriggles on a hook, it goes deeper into the mouth and guarantees that the fish will not escape." Eventually, Mr Gove will have to make up his mind: bite or flight. 

Does EVEL breach the Acts of Union?

Like many powerful, symbolic documents, almost nobody ever reads the Acts of Union. Magna Carta, "the constitution" in America -- the myth often fails to withstand an encounter with the text. I've had occasion over the past couple of days to revisit Great Britain's founding statute after this case from Lord Gray began circulating amongst SNP supporters on social media. You can understand why. If it had any substance, it might look like constitutional dynamite which could be deployed against David Cameron's "English votes for English laws" proposals. The circulator concluded enthusiastically:

"I found the 1953 ruling someone pointed out earlier and it is very interesting indeed. The articles of union say that members of parliament returned by Scottish constituencies cannot be excluded from the House of Commons. This means excluded from voting on any legislation This is unalterable. No government can change it. It would appear that if a government attempts to do this the union is dissolved with immediate effect."

I am sorry to report that not only is this dead wrong on almost every point -- but the logic of the argument being deployed here is unintentionally surreal. First, the missing background. This isn't a "ruling" and nor is it from 1953. It is a partisan legal paper written by Richard Keen - who has just been appointed the Tory government's law officer for Scotland. It was written for Lord Gray in 1998 against the backdrop of the first Blair government's proposals to strip hereditary peers out of the House of Lords. Gray, a Scottish peer, wasn't a happy bunny at the loss of his family's privileges. His paper argues that it would violate the Act of Union to exclude Scottish hereditaries from the House of Lords. Article XXII provides:

"That by virtue of this Treaty, Of the Peers of Scotland at the time of the Union 16 shall be the number to Sit and Vote in the House of Lords, and 45 the number of the Representatives of Scotland in the House of Commons of the Parliament of Great Britain."

If Gray's case was right, and the Union provisions could not be amended "for all time coming" -- then the SNP's long term commitment to House of Lords repeal would also represent an outrageous breach with the letter of the Acts of Union. On this logic, Pete Wishart ought to be campaigning for the Scots lords in ermine to be restated. I don't know about you, but this doesn't particularly appeal to me.

And if we're going to be strict about it, we've got another problem. By the letter of the Articles, somebody is going to have to tell the 56 SNP MPs that the Union specifies for all time coming that there should only be 45 Scottish MPs, and at least eleven of them are going to have to seek employment elsewhere.  Oh, and there's some more bad news about that independence referendum we all toiled away at back in September. The very first Article of the Acts of 1706 and 1707 reads as follows:

"That the Two Kingdoms of Scotland and England, shall upon the 1st May next ensuing the date hereof, and forever after, be United into One Kingdom."

I doubt many Scottish nationalists would support that provision being inviolate. And it'll make republicans amongst us uncomfortable to learn that their democratic ambitions are to remain unconstitutional in our eternal kingdom until the end of time or the heat death of the universe -- just because a small cadre of elite opinion in the early 1700s said so. Considering Lord Gray's case, the House of Lords Privileges Committee, which included several judges, came to a similar conclusion. They rejected Gray's argument concluding that Article XXII of the treaty wouldn't be breached by giving him and his colleagues of the blood their marching orders. Indeed, this provision of the 1706 and 1707 Acts had already been repealed by Westminster some years earlier, in 1993 and 1964 respectively.  And damn right too.

But even if you disagree with this interpretation - it isn't obvious that any provision of the Acts of Union are relevant to the EVEL proposals at all. Digging further into the text, Article 23 has a good deal to say about the privileges of the sixteen Scottish peers in the House of Lords, but is mum on the rights MPs could expect to exercise in the House of Commons. The problems with EVEL are contemporary problems, and not ones which can usefully be addressed through the lens of a centuries old mercantile charter. We are at risk of being in the absurd position of pushing arcane constitutional arguments which would require sixteen Scotch lords to sit in Westminster, but which do absolutely nothing to enhance the argument about the status of Scottish MPs. 

Legal nationalism in Scotland is an interesting tradition, but despite my political inclinations, not one I have ever felt a huge amount of sympathy for. Colin Kidd's (2008) Union and Unionisms has an interesting discussion of evolving legal and political ideas since 1707 about whether the Acts of the Union are entrenched and still represent fundamental law in the UK. Lord President Cooper's celebrated comments in the (1953) case of MacCormick v Lord Advocate are much quoted. The Union settlement clearly preserved things which have been seen as pillars of Scottish identity since - the church, the distinct order of law. 

But for myself, I have never understood the place of the Acts of Union in that tradition. I'm indisposed to treat a commercial deal about salt and beer and window taxes with much reverence. Indeed, this is a paradoxical seam in the wider tapestry of Scottish nationalism. For many Scottish nationalists, the Union was "bought and sold for English gold" by a parcel of Scottish rogues -- but the agreement those "rogues" struck is today invoked as if it was Moses and the Prophets, in pious tones. On any reckoning, this is a perplexing combination of historical ideas to hold. This is a crooked deal, and we insist that it must be enforced to the letter and forever. 

UK Supreme Court justice, Lord Sumption, began a recent lecture on Magna Carta on provocative form. "It is", he said, "impossible to say anything new about Magna Carta, unless you say something mad. In fact, even if you say something mad, the likelihood is that it will have been said before, probably quite recently." The same often goes for those other mythic texts in the UK and Scottish constitutional tradition, like the rampantly anti-catholic 1689 Claim of Right or the Scottish feudal oligarchy envisaged by the declaration of Arbroath.  Much of the contemporary force of these texts seems to derive from ripping them out of context and attributing to them democratic virtues and aspirations which would have seemed alien to the very people who drafted them. It is a conclusion to madden the lawyer, but the cultural significance of these documents is not exhausted by what they do or do not actually say.

Detached from their context, and their texts, these declarations and charters float freely in the popular constitutional imagination. Sometimes, they are used to promote a more democratic vision of the country's best traditions; sometimes for more reactionary purposes. In America, grown men don tricorn hats and 18th century militiamen uniforms, to argue that their constitution is betrayed by federal healthcare reforms. On this side of the pond, Tories are even now invoking Magna Carta neo-mediaevalism to justify hacking back the contemporary rights which citizens enjoy. And Scottish nationalists are appealing to the ancient and perpetual rights of Scottish peers to try to resist the Conservative solution to the very modern West Lothian question.

Our abiding passion for old documents and ancient sources of authority are fascinating -- but often strange. Very strange.

Can Cameron lose a debate against Eck?

Should David Cameron participate in a debate against Alex Salmond before the referendum campaign closes? Will he? Today, a poll indicates that 67% of Scots are in favour of such a debate. To date, the balance of probabilities has seemed to suggest that no debate will take place.  

The script explaining why writes itself. The unpopularity of the Tory-led Westminster government represents one of the big challenges for Better Together across much (but not all) of the country.  If Yes Scotland can transform the Scottish anti-Tory coalition into a pro-independence coalition, the Union is stuffed.

By contrast, the overwhelming majority of Scottish Conservative voters can be solidly relied upon to reject the SNP's constitutional project, come what may. Without any disrespect to them, Better Together can afford to ignore this section of the electorate most of the time. Getting the vote out on polling day will be important, but convincing these folk isn't a priority.  While the Aberdeenshire, Perthshire or Borderer Tory might grouse about Cameron's cowardice in refusing to put himself to the touch in defence of the Union he believes in, this disgruntlement is profoundly unlikely to move them from the No to the Yes column. So who cares?

By contrast, making Cameron the late face and spokesman for the Union in a critical debate is calculated to alienate a vital, wavering section of the electorate who'd never dream of supporting him in their lifetimes. Tory money, Labour activism: that was the deal.  On this vision, the main virtue of the Conservative involvement in the constitutional debate is stealth.  Cameron's participation in any debate would blow that steady strategy to bits.  

An audacious, but risky gambit and one that Better Together may not be able to afford, if the polls narrow towards the end of the campaign.  Although the media love them, the evidence is rather more ambivalent about the impact of debates on voter behaviour. Do they change people's minds? Where one candidate or party wins by a landslide, we can afford to be a bit cavalier about the impact of such televisual events. Not so if the race looks remotely like coming down to a few percentage points one way or t'other.  All good, cautious reasons for Cameron not to debate against the Maximum Eck.

Largely sharing this logic, Alex Massie has nevertheless argued the all into the valley of death case for Cameron to debate the First Minister over the course of the referendum campaign. Surely it is pretty pitiful for a fellow to say that every fibre will be strained in the United Kingdom's defence, but demur from actually making that case yourself to your fellow citizens? It looks craven, and weak, and worse, it undermines a key plank of the Unionist project. 

As Dame Bella of Doily explained in her maiden speech to the House of Lords this week, the idea that the referendum is an issue for Scots only sits uncomfortably beside the togetherness espoused by those supporting a No vote.  In defence of Cameron's stance, various folk have suggested that Eck is attempting to transform the referendum into a snarling, ethnically charged battle between Scotland and England. A simpler explanation might be that the choice is, to some extent, between concurrent administration of the country by Prime Ministers and First Ministers, or Scottish politicians which we can peeble to our hearts content.  

I wonder, though, if there are other good reasons why Cameron ought to put aside his qualms and have a crack at Salmond. Given how low expectations are about Cameron's performance in an #indyref debate against Eck, can the PM really lose?

Reason one: the idea folk will conveniently forget that they are governed by Tories at the UK level if Cameron avoids putting his phizog on telly is ludicrous.  If that fact becomes salient for a significant section of the electorate in the referendum debate - and there are signs that it has already become so - the unpopularity of the Prime Minister and his colleagues can't be avoided. It isn't obvious that a debate could further decrease the regard with which the Conservatives are held north of the Tweed. Not debating seems to secure few advantages.

On the other hand, there is a reasonable worry that the debate would depict the constitutional choices in a way uncongenial to the Labour-dominated forces of Better Together. Although a number of pro-independence folk doubtless have their problems with the first minister, I fancy that the gap of sentiment if not of ideology separating Salmond from them is less than divides your pro-Union Labour voter from Cameron. In a calculated way, recognising this fact is doubtless a reason to refuse to participate. But pace Massie, it still looks pitiful.  People like a trier. 

Reason two: The received wisdom is that Eck would merrily pulp Cameron in any debate. I'm not so sure. And if those expectations of a pulping are not realised, the benefits break entirely Cameron's way. In the American scene, more practised in these sort of head-to-head arguments, they've become pass masters of managing expectations. Democratic spinners bigging up their opponent's credentials, Republicans emphasising the eloquence and experience of their opposite number. Why? Because if you go into these things as the overwhelming favourite, there's a serious risk that you underwhelm, your opponent does better than expected, and you end up with bad headlines, and their unexpected cogency becomes a "game changer". At least in the headlines, in the last days of the campaign.   

If the Salmond vs Cameron debate broke along these lines, you can imagine the copy: "We all expected a Salmond knockout. But the First Minister struggled to land the killer blow last night as the Prime Minister came out fighting in a well-prepared and well-pitched plea for Scots to "stay with us". "An assured performance from Cameron, which surprised many observers." "After a difficult week in Westminster, the Prime Minister has seized back the momentum this week in a commanding performance in Scotland, taking the battle to the separatist-in-chief Alex Salmond, leaving the Chief Puddin' red-faced again and again."  Etcetera, etcetera.  Expectations about Cameron's performance are so low, I struggle to see how he can lose.

Cameron would also want to take an off piste approach to preparing his lines of argument. Wargame unanticipated angles Salmond won't be prepared for. Mix it up. Unless truly calamitous, Cameron can rely on a sympathetic hearing from many of the nationals, who can be expected to leap on anything less than a wholesale Eckly demolition as a set-back and a calamity for the Nats. 

More importantly, perhaps, showing a bit of grit may be in Cameron's own domestic interests. The Prime Minister is getting a troubling reputation for invertibracy, a spammy quality. Giving Eck an even modest thwapping on his own turf can only play well in the London presses, which are still in the grip of the idea that "wily" Salmond represents some mystically forceful character.  There would be no point in debating anything with wee Johann Lamont.  If he comes out unscathed and unscarred against Salmond - or at least having dealt and earned a few scrapes - there's a bit of kudos in that for a plastic PM striving to give his gelatinous form more substance.   

And lastly, a debate between the two would be fun. Shouldn't constitutional politics be fun too? It would also represent an opportunity to bring the folk of these islands together, a set-piece moment for folk in England, Wales, Norn Iron and Scotland to hear and understand the arguments both for and against the idea of Scottish independence and continuing Union. Surely a good unionist should want nothing less. 

Equal marriage & the passionate mode of politics...

Regular readers may not readily associate my prose with the passionate mode of politics.  Law school is where warm hearts go to be extinguished.  There's a certain truth to that. If you've a mind and disposition kiltered towards abstractions, chances are, it'll tell in your political writing. 

On the equal marriage debate thus far, I've been a more or less cool partisan for the equal marriage side of the spectrum. I've tried to bracket my own sentiments, and take an interest in the reasoning of the other side. As wise women have reminded us, the personal is political too, and the past couple of weeks, I've encountered a couple of things which have gone a long way to hardening my attitude. 

The first was an otherwise inconspicuous conversation with a friend and colleague in an Oxford pub. But for the smoking ban, beards would be brooding over pipes, and fragrant gusts of tobacco smoke.  Wood panelling, ale, a chestnut-eyed black Labrador, his friendliness injudiciously distributed to all and sundry. The usual odorous knot of greying wankers perched at the bar, stooled, guffawing at thin jokes, creasing yellowing tabloids under their armpits, bickering over crossword clues. An abacus line of rheumy eyes for the lassies, taking deep pulls from electronic cigarettes, their only nicotine-fingered gesture to modernity.  Bitterness and honesty dictates the admission: the Men at the Bar usually defeat us in the pub quiz. And great was the rhubarbing, and gnashing of teeth.

In anticipation of the quiz, the usual team (which I habitually christen "Ann Widdecombe's Steel-Reinforced Colostomy Bag", when permitted) nattered away about this and that, supping cheerily. The usual local colour and gossip, of friends, gags, tales, nonsense, flashes of earnestness. We're a motley band. Graduate students, university staff, freelance cooks, theatricals. English and Irish, Dutch and Norwegian, Australian and Canadian. 

The designated political bore, at my instigation the conversation in one corner happened to turn to the second reading of the same-sex marriage legislation in the House of Lords.  Rather to my surprise, an ordinarily almost entirely non-political comrade piped up that he had been following their Lordships' deliberations earlier that day.  He was lightly smarting from the experience, from the words and sentiments he'd heard. In a long-term, happy and committed relationship with another fellow at the table, he'd fired up Democracy Live, and subjected himself to the judgement of faded Barons and dust-lunged Baronesses about his ordinarily thoughtless, joyful, careless sense of himself, his sexuality, his relationship.  

As is perhaps inevitably the case, the contrary statements proved more memorable than the speeches which endorsed the idea of equal marriage. My own impulse is towards intellectual imperviousness, a shrug.  You may very well think that, but regrettably, you're a chronic wanker, and your sentiments are of signal indifference to me. In a small, gentle way, with the diffusing good humour and irreverence which characterises him, it was clear that these shoogly old villains had wounded my friend.  It is extraordinary the thought never struck me before that the debate might. Perhaps I lack imagination. But seeing the small but perceptible injury these doddering old coots had done dug a thumb right into my chest, sounding the heart strings.  A muted, but perceptible note. Whose side are you on? We passed on to other chatter. The old gits won the quiz. We rhubarbed, ordered another round, cursed our losses, and blethered cheerfully on.

The second incident was grander, a marriage. The first of my contemporaries were wed in full fig this last weekend. A curious experience. Before Saturday, I'd been a nipper at my aunt's wedding, and an even smaller nipper in a clip-on tie at some other, forgotten relative's union. Otherwise, I had little to go on. I'm not married. No marriage is in the offing. My parents are happily knotted together, but bred up neither my sister nor I particularly to reverence the wedded state, even on a secular basis. More important than the formalities, than the witnessed names in the book, the rings and ceremonies, was the abiding sense of affection.

As a consequence, I wasn't sure how I would respond to my friends' getting hitched. It was bound to be a lovely day, full of conviviality, generosity, and happiness for the pair. The officiating cleric may have been a republican socialist who favours disestablishment of the Church of England. Despite this beguilingly contrary ideology from a man in a brocade frock, nevertheless, I anticipated the religious bells and whistles to jar somewhat with my godless cynicism. As usual. What I did not expect, however, was how moving the ceremony would be. An absolutely sincere, soft-voiced, avowal of devotion and love. Not for me, and I suppose for many there, in the eyes of some all-seeing, all-judging creator deity, but before the eyes of friends and family, of folk who meant something to each other.

It was lovely to see, truly, and reminded me of a perceptive observation Nicola Sturgeon made about her evolving attitudes towards marriage. I paraphrase, as I cannot find the link to the original article, but from memory, Nicola remarked that her own, recent wedding to Peter Murrell surprised her, and was charged with more emotional power and significance than she had conceived of when they were just bidie ins, mooting the idea.  I do enjoy being emotionally surprised, and Saturday certainly sprung one on me. I think I might, might understand what Nicola means now.  A gentle revision of my notions may be in order.

I'm not suggesting that marriage is for everyone. I've no idea whether it is even for me.  What I do feel, however, more keenly than ever, is that arresting thumb again at my chest, sounding a demanding note. The idea that only some of my friends, only those with the fortune to find themselves emotionally entangled with someone of the opposite gender, should be able to stand in that convocation of their friends, together, in that transporting moment, that day, pleasure etched on faces, unbidden tears gladly stinging the eye.  That thought's now an outrage, even a cruelty.

As today's delightfully serendipitous, lovely wee video from the Scottish Equality Network makes plain, it's time.  Oftentimes, doing the just thing is difficult and costly.  This isn't one of those times.

Let's get this done.

Dating advice from the Electoral Commission...

Do you agree that we should go for dinner? Do you agree or disagree that we should go for dinner? Do you agree or disagree that we should go for dinner which, just to be clear, would mean not staying in and reheating that delicious pot of tripe I brewed up yesterday? Or should we just go for dinner? The last of these has a certain elegance the others want, to be sure. 

The next time I proposition someone, exploring opportunities for an evening repast, I'll certainly take the Electoral Commission's advice when formulating my question. I'm a scrupulous (for which read, uptight) sort of fellow, and I'd hate mischievously to frame my enquiry in a way that wasn't entirely neutral, yea or nay.

Today, the media mostly seems keen to represent the Electoral Commission's advice to the Scottish Government as another damaging turn for the SNP.  Disaster for Salmond. A humiliating "rejection" of a skewed and skewing question: just the sort of sly trick you'd expect the First Minister to pull, in a guileful attempt to hornswoggle a goonish section of the electorate into supporting independence accidentally. For what it is worth, my opinion of the Scottish electorate isn't quite as low as many of our elected tribunes in the House of Commons, and by the time polling day comes around, I'd expect folk to have a fair comprehension of what they're being asked, more or less autonomously from the particular text of the question they meet in the booth.

The key features of the agreed question? Its Yes/No structure. While the first, convoluted proposal to emanate from the Scottish Government in 2007 used the language of agreement and disagreement, the second iteration, published in January last year, shortened this to a terser Yes/No pairing.  A desire to retain this structure, and so starkly to frame the campaign along oppositionally positive and negative lines, presumably explains why this draft posited independence as a positive proposition. It recalls the balance of burdens in a criminal case in England, where it is for the prosecution to make out an indictment. Do you find the accused guilty or not guilty?  

Salmond's critics suggested that the question's presumptive positive was a deliberate attempt, via some subtle cognitive biasing, to plant subtle psychological lures in which the unwitting would find themselves entangled come referendum day, seduced into supporting "separatism" despite their cherished Unionist convictions. I don't find this terrifically plausible.  Much more likely, it seems to me, that the SNP were and are keen for the whole campaign to be framed in terms of a clear yes and no, positivity against negativity, springy-hopey-sunny independence against the drear annulling rhetoric of the abominable No men. You can't get this done with a referendum question framed in terms of agreement and disagreement.  The Commission's advice leaves this essential framing undisturbed. No affective references to "breaking up Britain" or to "separateness" or "separatism", no reclaiming the positive ground for the pro-Union campaign.

Secondly, it's interesting that the Electoral Commission has sanctioned the language of "country", which has not gone uncriticised in some quarters. None of the participants in their qualitative research exercises struggled with it, preferring its "more commonplace and easily-understood language" to the concept of an "independent state", which the stiff international lawyer might find more pleasing. If only the Commission had conducted their research in the Houses of Parliament, they'd have found several folk with furrowed brows, sorely vexed by the idea of an "independent country". During the Commons debate on the section 30 order, Eleanor Laing, formerly of the University of Glasgow, now Tory MP for Epping Forest, objected to the term:

"I turn next to the question. There is no point asking a question along the lines of: “Do you agree that Scotland should be an independent country?” That is what the First Minister and the Scottish Government have so far proposed. It is such a biased question that even I would answer yes—of course, Scotland should be, is and always has been an independent country. It is a non-question. There is no point going through the rigmarole of a referendum, spending hundreds of millions of pounds, to ask a meaningless question. If even I would answer yes, the facts speak for themselves: the question is enormously biased."

So too did our old friend, Lord George Foulkes, who told his colleagues on the red benches that:

"It does not refer to membership of the United Kingdom in any way whatever. I have spoken to some of my colleagues here, who think Scotland is currently an independent country in many senses."

Darth Forsyth, also in the House of Lords, took his light sabre to it:

"There is no more committed unionist in this House than I am, but I would be tempted to answer yes to that question. Scotland is an independent country."

Interestingly, there's been a shift or two in the SNP's own thinking on this one. Back in 2007, when the minority Scottish Government introduced its White Paper, the draft Bill envisaged negotiations with a view to making Scotland an "independent state". For some, statehood perhaps seemed a little abstract, with a certain whiff of international legalese clinging to it. So country it is. Which all seems perfectly tolerable to me. 

For A' That, Episode 4 ... Hypothetically Speaking...

I'm told that - like grief and alcoholism, and here there may be overlaps between the three - completing your doctoral thesis is a process with many stages, from bright-eyed initial enthusiasm, to grinding, alienated despair, as the prose accumulates, and the months and years tick by.  It's like Stockholm syndrome, where it is impossible to tell whether you or the thesis is the kidnapper. I've been sunk deep up to my eyeballs in this unforgiving endeavour: I hope you'll forgive my quietness here these past two weeks. 

I'm happy to say, however, that we are keeping up the momentum up on our For A' That podcast, recorded with my co-host, Michael Greenwell of the Scottish independence podcast (most recently recorded with Patrick Harvie MSP), and interesting folk from the world of Scottish social and political commentary.  Our guest on this, the fourth episode of the show, was Gary Dunion, currently one of the editors of Bright Green Scotland blog, former candidate and chief press officer for the Green Party in England and Wales.  

Today's discussion covered a range of topics, from Vodafone and Starbucks' interrogation by a Committee of the House of Commons on their economical tax arrangements, and the potential efficacy of protest to effect political change, to yesterday's (unconfirmed) allegations that police were stripping Celtic fans of Palestinian flags as an entre into a broader discussion of policing football, the law recently passed by Holyrood, to criminalise "offensive behaviour" on the terraces and how that may relate to fundamental rights, including free expression, which is protected by the European Convention on Human Rights, incorporated into domestic law by the Human Rights Act 1998.

We closed off our chat with a brief look at the latest independence referendum issues, including the House of Lords Constitutional Affairs Committee's report, published this week, reported in the Telegraph under the inflammatory headline, Lords: Scottish independence referendum deal could be declared "unlawful". Gary also makes an interesting point about campaign funding: is the SNP government actually proposing an overly abstemious regulation of the independence referendum? Is there not a case for nationalists to raise and spend a substantial amount of cash, making the best, most detailed case for independence which can be conceived? We also considered the situation of the civil service in this process: will the state bureaucracy in Scotland and the UK strain at the seams, as a nationalist Scottish Government, and a unionist Westminster Government, use their governmental resources to pursue their constitutional preferences?

In perhaps the podcast's inflammatory admission thus far, I also reveal that, unlike the First Minister, I cannot survey a Tunnocks' teacake with equanimity, nevermind culinary enthusiasm. Lend the podcast your ears here:

For those of you who'd prefer to ferret the show away for later like a concealed, larcenously-acquired teacake in a greedy schoolboy's pocket, you can also download the show via iTunes or Spreaker.  All observations, comments or criticisms on the show, or anything we discussed, very gratefully received.  We'll be back next week with another show, with another guest, and a new range of issues to blether about. Unforeseen, but happily, I'll also be up in Glasgow next week and have squeezed Saturday's Radical Independence Conference into my schedule.  I dare say I might bump into a few of you there.

Can Holyrood repudiate the UK Supreme Court's civil jurisdiction?

I've written before about how the creation of the UK Supreme Court in 2009 was an opportunity taken by the new Unionist stylists to promote a novel judicial imagery of an enduring United Kingdom. Evicted from their scarlet seats in the House of Lords, the law lords sitting in the new Court set up in Middlesex Guildhall needed fresh symbols and seals for their new institution. The options before them were manifold. They might have depicted blindfolded Dame Justice, or the book of the law, and swords and scales like the European Court of Justice. They might have eschewed these conventional signs altogether, and taken inspiration instead from the Canadian Supreme Court which employs a simple "CS" style, like the French Cour de Cassation, or like the Americans, emphasise already familiar national imagery, with a modified version of the instantly recognisable arrow and laurel wielding bald eagle, replete with stars and stripes. 

In the event, the Union flag was passed over, as were the more regal and heraldic adornments of the Royal Courts of Justice or the Court of Session.  Instead, the new UK Court crest combined the mingling roots of a rose, a thistle, a leek and a flax flower, united in an everlasting circle under the Crown.  The logo of an important but obscure public institution obviously cannot command popular commitment to continuing union, but it buttresses the wider project.  Interestingly, however, it occurs to me that the Constitutional Reform Act 2005 might now present a political opportunity for Nationalists seriously to loosen the thistle that looks so firmly planted there. 

I have an evil plan. Or at least a devilish cunning one. I doubt that the failure of the Civil Appeals (Scotland) Bill in 2006 was a major or memorable political moment for many of you. A private member's Bill introduced to Holyrood by Adam Ingram of the SNP, it proposed to end civil law appeals from the Court of Session to the Judicial Committee of the House of Lords as was, whose jurisdiction has now been assumed by the UK Supreme Court. Had it been successful, Ingram's law would have ended a centuries old right of appeal from Edinburgh to London.

My argument is simple. If the SNP government wants to, there seems to me to be a very strong argument that it is now within Holyrood's legislative competence unilaterally to cut Scots civil appeals to the new UK Supreme Court. The general aims of Ingram's Bill can be revived, and with the aid of the government's majority in the chamber, should be perfectly realisable, if there is a will to it.  While the main inter-institutional controversies during this parliamentary session have concerned the UK Court's jurisdiction to hear and decide Scottish criminal appeals on human rights grounds - which Holyrood is powerless to prevent - a close read of the Scotland Act suggests reform of the Court's civil jurisdiction would now be perfectly intra vires.

So why did Mr Ingram's Bill fail in 2006, and what has changed in 2012?  Under the provisions of the Scotland Act 1998, before any Bill is introduced in Holyrood, the Presiding Officer must declare that the Bill falls within the legislative competence of the parliament (§ 31(2)). In the case of the Civil Appeals Bill, George Reid found that its provisions were not within the parliament's competence. His view, based on legal advice, is rather densely set out here.  He noted:

"... the reason for this view is that in my opinion these provisions relate to the Constitution. The Parliament of the United Kingdom, including the judicial functions of the House of Lords, is reserved under paragraph 1(c) of Schedule 5 to the Scotland Act 1998. Section 29(2)(b) of the Scotland Act 1998 states that a provision is outside the legislative competence of the Parliament if it relates to reserved matters..."

Frazer McCallum explained this in rather more comprehensible terms his SPICe briefing of the 16th November 2006...

"The primary reason advanced by the Presiding Officer for his view on legislative competence relates to the fact that the Bill seeks to amend the judicial functions of the House of Lords. It does this by seeking to end the power of the House of Lords to deal with Scottish appeals. Thus, it is argued that the Bill is effectively seeking to amend some of the functions of the United Kingdom Parliament. Paragraph 1(c) of Schedule 5 to the Scotland Act 1998 provides that the United Kingdom Parliament is a reserved matter and thus would not be within the legislative competence of the Scottish Parliament. When the relevant provisions of the Constitutional Reform Act 2005 are in force, the jurisdiction of the House of Lords in Scottish civil appeals will transfer to the new Supreme Court. The Supreme Court will not be part of the United Kingdom Parliament. Any future proposal in a bill which sought to remove the possibility of an appeal to the Supreme Court would have to be closely scrutinised as regards legislative competence."

Quite so. And not such an esoteric subject now, is it? Due to George Reid's legal reasoning, the civil appeal to the House of Lords, and subsequently the UK Supreme Court, continued and continues to this day. Yet in our times, with a majority of Nationalists in Holyrood, issues of jurisdiction - usually the dry preserve of the legally curious - have taken on a much more political complexion.  And vitally, the objections which proved fatal for the measure in 2006 no longer obtain. To my eye, the UK court looks to have little legal defence against a Nationalist parliament, minded to repudiate its capacity to make learned disquisitions on Scots civil law. And here's why.

General powers reserved to Westminster are set out in Schedule 5 of the Scotland Act 1998. First to appear under this heading is "the Constitution". However, despite their "generality", the terms of the constitutional reservation are quite specific, reading as follows...

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,
• (c) the Parliament of the United Kingdom,
• (d) the continued existence of the High Court of Justiciary as a criminal court of first instance and of appeal,
• (e) the continued existence of the Court of Session as a civil court of first instance and of appeal.

Thanks to the approach to devolution taken by Donald Dewar, the Scotland Act 1998 grants such powers to Holyrood as are not explicitly reserved to Westminster. Thus, for example, Holyrood found climate change within its legislative competence, and enacted accordingly. The language of this section seems to me to be eminently clear. By stating that "the following aspects of the constitution are reserved" - and naming five reserved subjects - the language of the Scotland Act explicitly recognises a category of constitutional issues that are not reserved and are thus within Holyrood's legislative competence. Adam Ingram's Civil Appeals Bill failed because the Judicial Committee of the House of Lords, as was, sat as part of the Parliament of the United Kingdom. No longer. Under the Constitutional Reform Act of 2005, the UK Supreme Court was founded - and the Law Lords packed up their worldly goods and crossed the road to the Court's new home in Middlesex Guildhall.  And critically, they left their reserved protection behind them.

The key question is this. If the UK Supreme Court is no longer part of Westminster, and thus no longer subject to the specific constitutional reservation under Schedule 5(1)(c) of the Scotland Act, how could Holyrood be prevented from ousting their civil jurisdiction? Is the civil jurisdiction of the UK Supreme Court still a "reserved matter"? I think there is a strong argument that it is not - and it is thus within Alex Salmond's powers, substantially to diminish the Court's jurisdiction. Or at least, to give it a brave and politically pungent go.

What construction of the legislation could prevent Holyrood from doing as it pleased and eliminating Scottish appeals? It would require, I think, an artificial reading of Schedule 5's specific constitutional reservations, and the reading in of a much broader idea that "constitutional issues" not specifically enumerated in the Scotland Act can attract the same "reserved" character and protection from amendment by Holyrood as those explicitly given - Crown, Union, Parliament and so on.  As I've already argued, however, the language of the Scotland Act does little to commend this statutory construction. Talking about "aspects of the constitution being reserved" seems explicitly to accept there are some aspects of the constitution which are devolved to Holyrood.

Alternatively, you might try to argue that the UK Supreme Court inherits not only the House of Lords' judicial jurisdiction, but also some implicit "reserved" protection under the Scotland Act.  If that line of contention looked forlorn, you might delve into the old statutes to try to recover and put to work some ancient claim about "fundamental constitutional rights" to review in London of decisions made by Scottish civil courts. You might get up on his hind legs and lend your lungs to it - but I don't see any evidence in the text of the law which supports the proposition that Holyrood's legislative competence should be curtailed in this manner.  Ironically enough, if it became a point of litigation, it would fall to the UK Court to assess the extent of its own jurisdiction, and the Scottish Parliament's ability to change it.

Equally significantly, the UK government and parliament made no attempt in its new Scotland Act 2012 to amend Schedule 5 in this respect (and I kept schtum during their deliberations, lest they be inspired to do so), while the Constitutional Reform Act made no amendment to the Scotland Act, nor any reference to the UK Supreme Court as "constitutional" inheritor of the parliamentary reservation which stymied Ingram's efforts in Holyrood's second session. To have included such a phrase would be straightforward, amid all of the other changes affected by the 2005 Act, but instead, it only provides that... 

"... an appeal lies to the Court from any order or judgment of a court in Scotland if an appeal lay from that court to the House of Lords at or immediately before the commencement of this section" (Constitutional Reform Act 2005 § 40(3))

Let's not get ahead of ourselves.  There are likely to be complexities. Indeed, I expect that a truly horrifying list of enactments contain some reference to the jurisdiction of the UK Supreme Court - and some of these issues may well "relate to reserved matters" under the Scotland Act for other reasons. It is proper, joyless lawyer's work. Yet given the political background, given the SNP's majority in Holyrood, the party's vexation with the UK Court's jurisdiction and the desire to make such jurisdiction as the Court retains as exceptional as possible, revisiting the Civil Appeals Bill strikes me as an obvious wheeze. It doesn't even call for jiggerypokery. Read Reid's reasoning. On the simplest construction, the underlying legal situation which vetoed the legal competence of the Bill in 2006 no longer obtains, and the Court now looks very vulnerable to Scottish reforms aimed at minimising its judicial sway. This thistle's roots aren't nearly as deeply planted in our constitution as the Supreme Court's artists clearly hoped.

"Not a model of draftsmanship either in structure or in expression..."

"Not a model of draftsmanship either in structure or in expression". That was Lord Justice Clerk's Gill's assessment of an Act of the Scottish Parliament in court last week. The case is just the latest in which Holyrood legislation has been set against human rights norms - here rights to property - and been found wanting. Although at first sight the issues involved seem off-puttingly technical, Lord Gill's judgment smartly summarises the statute challenged, the reform it affected and the rationales advanced in Holyrood in 2003 for it.

To introduce the point of contention very briefly, the Agricultural Holdings (Scotland) Act 2003 intervened retrospectively to render ineffective legal arrangements used by landlords to deprive agricultural tenants of security of land tenure. The 2003 Act, argued the litigating landlord, violated his right to property under Article 1 Protocol 1 of the European Convention and consequently was outwith Holyrood's powers. Extensive reference is made in the judgment to comments made by parliamentarians in the course of their speeches in the chamber and in committees. In his dry, understated way, Gill is also rather scathing about the reasoning proffered by former Labour MSP and Deputy Environment Minister Allan Wilson.

Last week, I quoted Joan McAlpine to the effect that she - and I'd guess other MSPs - basically think of Holyrood as a quasi-sovereign body, that shouldn't have to trouble itself over much with legal technicalities. Democracy on their side, and supported by popular election, surely their deliberations ought to prevail whatever? At least under the present dispensation, no so. That is not to say that that parliamentarians exhibit no sensibility for the limits of their powers - many are acutely conscious of their moderate to non-existent jurisdiction over decisions in welfare, foreign affairs, defence and so on - but the constraints on legislation within areas of devolved consciousness do not always seem adequately to have been attended to. Treating them as technical points of tedious detail, as naught before their political sway, our tribunes seem to prefer to defer to the reassurances of Ministers - and whizzbang - enact anyway.

More importantly perhaps, this vice doesn't solely relate to those bodies of norms - human rights, EU law, reserved matters - which constrain Holyrood's powers, but can also contribute to an overly-constrained vision of what the Scottish Parliament can and cannot do. Insufficiently close scholars of the Scotland Act - which provides no enumerated list of devolved powers, but instead only things reserved to Westminster, making life difficult - you sometimes get the impression that our politicians do not always realise the full extent of what they are empowered to do under devolution. Even Nationalists are given to mutely conceding devolved fields as areas where London should enjoy priority or even exclusive competence. The underlying issues raised by the Leveson inquiry are a case in point. 

In any case - another court action, another Act of Holyrood teetering on the brink of being declared beyond its powers - which should serve as a small reminder that while MSPs are representatives and politicians, they are also lawmakers, and the evidence at least suggests that they have not yet developed mature legislators' sensibilities for this aspect of their job. The procedures adopted by the Scottish Parliament don't much assist them to develop rugged independency on this score. From its inception, it was envisaged that parliamentary committees would undertake the main labours of scrutinising the details of legislation in Holyrood. In the event, and entirely unsurprisingly, partisan hackery has tended to reign. You don't have to have particularly sensitive ear to note that the concept of "holding the government to account" enjoys only very modest purchase in the discourse of Scottish parliamentarians. In a queer way, proportionality has arguably encouraged this disposition, encouraging all of the parties to hang desperately together, and to avoid dissent or rebellion from their respective leadership's line, and instead to kick outwards. By no means am I arguing that Holyrood's committees do no good work - they do - but their primacy in the scrutiny of proposed legislation simply has not produced the results intended and hoped for.

In addition to partisanship, partly this can be ascribed to the last act of legislation in Edinburgh, which can totally vitiate the virtues of methodical examination of a proposal. Right up until a Bill's last day in the parliament, amendments are typically brought forward, justified by the scantiest ministerial representations, and are promptly voted on - and raced through. There is no moment of pause, no second taken to ensure that these over-speedily adopted provisions combine into the best, intelligible text parliament can contrive to work its will. At the end of this blistering process - a vote on the final object is taken, and if successful, the Act is forwarded to the monarch for her Royal Assent.

It shouldn't surprise anyone that the results of this wholly unnecessary haste are chimerical final texts and poorly-drafted laws, ill-serving the parliament's declared ends.  It is not untypical for parliamentarians more and less mildly to resent what they perceive as judicial interventions in their sphere of competence. They would do well to think on the fact that it partly by dint of their adopting of muddy legislation that litigation and adverse judicial rulings are generated.

Represented by a unicameral parliament, Scotland has no "revising chamber", no delaying, scrutinising site to subject the government's proposals to concerted and in-detail examination.  Another one of those interesting questions for an independent Scotland, I should say. Should we have our own House of the Ancients, a Scottish Senate? Elected, appointed, some muddle-guddle mix of the two? I for one would have no truck with the fripperies, ribbons and peeled mustelids of a Scots Hoose o' Lairds, but depending on the outcome of the independence referendum, we ought to give serious thought to the virtues of forming a second institution in our democracy to undertake some of these neglected tasks Holyrood seems, at present, ill-suited to perform.

Encouragingly, Holyrood has instituted self-reflection through its Standards, Procedures and Public Appoints Committee, who published their first report into reforming parliamentary business in Edinburgh last December. I know some of you are shaking your fists at the screen, damning me for a drab jurisprude whose passions ought to be animated by other things - but this stuff matters and will, I fancy, have a significant impact on an approaching controversy in Scottish politics.

More on that tomorrow...

Michael Moore's Machiavelli impression?

Whether sweeping up spent prickles from your tree, or avoiding garotting yourself as you tidy away the tinsel, the inevitable post-Christmas tidy-up tends to unearth things overlooked or forgotten during the Festive season. As it is for the mouldering mince-pie, so too with British constitutional politics.  Just before Christmas, the BBC reported that "Westminster could hand Holyrood the legal power to run a Scottish independence referendum" by employing a "special clause" in the Scotland Act 1998. Unhelpfully, this Whitehall scuttlebutt was reported in the same breath as House of Lord amendments to the Scotland Bill were discussed, creating a potentially misleading impression that the two processes were the same. They're not. 

Actually, there is nothing particularly "special" about section 30. It allows UK ministers to alter the list of matters reserved to Westminster's exclusive competence by means of a statutory instrument - an Order in Council. This ability to transfer powers to and from Holyrood is autonomous from the Scotland Bill, presently at its committee stage in the House of Lords. While a section 30 order does not require full legislation, its terms would have to be agreed to by both Houses of Parliament and by Holyrood.  According to the Scotland Office, the first decade of devolution saw 168 orders of this kind made. As usual, the story revealed the confusing range of simultaneously-held ideas about the legality of an independence referendum, exemplified to a great extent by this befuddled New Year's disquisition from Herald columnist Andrew McKie, who writes...

"The Scottish Secretary, Michael Moore, used his New Year message (is the idea that there should be such a thing not ludicrously self-important?) to press the Scottish Government for details. He's right to do so, both from the point of view of the political strategy of the Unionist parties, which is to get the referendum held as soon as possible, while the answer is still likely to be "No", and in the strict constitutional sense that it's in both Westminster and Holyrood's interests to get the wording of the question and the legalistic niceties of whether the vote is binding tidied up beyond dispute, so that we can all know what we're voting on. 

But the Nationalists are quite right to point out that, though important, much of this is hair-splitting. It is politically impossible to imagine that a decisive vote for full independence would not lead to just that, or to contest the right of the Scottish people to conduct such a vote, even if it is technically a reserved power and regarded as merely 'consultative'."

If Holyrood has the power to hold a referendum on independence, why would London be handing it to the Scottish Parliament? If, by contrast, Holyrood didn't have the legal authority to organise a plebiscite, as the story presupposes, why the devil aren't journalists asking more searching questions about the dominant assumption that no legal problems exist, and Holyrood's proposed referendum is clearly legal? Moreover, if there is a potential legal problem, why do folk seem to think it is a mere "technicality" which Salmond could casually ignore if so minded? Isn't that a rather concerning notion to promote in a democracy of laws? Remember Cadder. The issues in the two potential controversies obviously differ, one concerned with the fundamental rights of criminal suspects, the other with Holyrood's ability to legislate when "reserved matters" such as the Union are in play.  Despite this, the UK Supreme Court's decision in Cadder ought to be politically instructive. Holyrood's legislative capacity is limited by other laws, will be subject to the review of our courts, and its Acts can be stayed, stopped and overturned if they cross the thresholds of their powers.  Hardly "mere" technicalities.

Yet another familiar but utterly perplexing line of argument suggests that only Westminster can hold a "legally binding" poll, as opposed to Holyrood's merely "consultative" referendum, and should do so. But stay a moment there. If Westminster is a sovereign parliament, free to change any law it wishes and unfettered by its own past Acts, in what respect can any referendum passed by it be said to be "legally binding"? Binding who, and to what? Michael Forsyth suggested to the BBC that...

"Who actually runs it is irrelevant. What matters is that we have a properly conducted campaign, that we have it properly supervised by the Electoral Commission, and that the result is binding, so that if people vote for independence that is exactly what will happen, and that we end this uncertainty which is so damaging to Scotland's financial interests as soon as possible."

Sleekit bunkum. If you subscribe to the constitutional theory of a sovereign parliament, there can be no such thing as a legally binding referendum.  Of course, that is not to say de facto that any referendum result would be ignored, or could be as a matter of democratic practice; merely that there is no space for de jure binding referendums in the British constitutional tradition. So what do folk mean by a "binding" vote anyway? An alternative way of interpreting the idea - as McKie half-seems to - envisages a referendum as being "binding" when its conduct is buttressed from any legal challenge by any member of the public on grounds of legislative competence. However, on this interpretation, the core distinction between the "binding" and the "merely consultative" becomes basically unintelligible. To talk about a "binding" Westminster referendum in this sense, and contrast the idea with Holyrood's merely "consultative" vote, is as fishy as a blushing mullet, and a nonsense pretext for Unionist politicians to presume to fiddle with the referendum's timing and question.  But then, what should one expect from the ever-serpentine Forsyth?

That said, it isn't surprising to hear that London are considering their opinions to prevent the referendum being challenged, likely to their own palpable disadvantage. I gather that similar discussions have been held behind the arras of St Andrews House too. In public at least, the SNP has clearly set its face against conceding anything less than the Scottish Government's perfect legal competence to hold the independence referendum.  A brave face, but unconvincing for all that. Whatever one's view about how any court case on the referendum might finally be determined, it is clear that under its existing powers, Holyrood is not able to ask a "clear yes or no" question on independence, nor will a referendum asking its current, circumlocutory question about negotiating "a settlement with so that Scotland becomes an independent state" - be safe from legal challenge by a lone but committed litigant, with money to spend and a will to spend it.  Neither of these facts are ideal, and a section 30 order could eliminate both the ponderousness of the proposed language and the connected and substantial risks of litigation and delay.

I have previously suggested that the same task might be achieved by laying amendments to the Scotland Bill. However, this relies on the assumption that Holyrood will give its legislative consent to the draft law: a conclusion that is far from foregone.  As Alan Trench has long argued, a section 30 order has the benefit of isolating the referendum issue from broader questions of reform, and Holyrood's financial powers, and the controversy engulfing the latter. However, if UK ministers prove muddled in their goals, it is easy to see how a section 30 order might cause its own constitutional stramash.  If treated solely as a simple instrument to eliminate legal doubts, a straightforward and unqualified section 30 order ought to be uncontroversial, both in Holyrood and Westminster. A few irredentist, gadfly Unionists in London might try to cause a bit of mischief, but I see no reason why such stubborn outcrops of resistance could not be overcome.  

Things get spicier if Michael Moore fancies himself for a cunning so-and-so, and he and his colleagues lose sight of their primary aim, and try to use a section 30 order to politick in their own preferences for an early referendum poll, by time-limiting the referendum competence to 2013, 2014 or the like.  Nationalists are liable to contend that for the Secretary of State for Scotland to do so would be shameless interference with a democratic mandate-bearing Scottish Government, which ought to be able to hold the poll when it damn well pleases, according to the loose timetable it presented to the Scottish public. Assuming they feel strongly enough about the timing issue, we might envisage the SNP-dominated Holyrood refusing to consent to any Order in which the clock ticks on independence, even if it put the legality of its referendum questions beyond doubt.  What then? Can you imagine a rebuffed UK ministry bringing back another Order, without the time-bar? 

Without the certainty a section 30 order could provide, the SNP would be in the same position as they are now, having to rely on its shoogly legal powers under the current incarnation of the Scotland Act.  Clumsily, predictably, UK ministers would simultaneously have failed to achieve their essential goal of ensuring the referendum can take place without unnecessary judicial deliberations and secured no apparent political advantage in the process.  Certainly, they might try to colour the Nats as stubborn and unconstructive - but if UK ministers are primarily feart of the damage a single Unionist litigant might to do their cause, they'd do well to swallow any conceits they may have of playing Machiavelli, and make that simple, clear and unconditional section 30 order they've been gossiping to the BBC about.

Johann's shadow "ministry of all the talents"?

Just a short thought for today.  A "ministry of all the talents".  Historically, the phrase is owed to William Greville's abortive 1806-1807 Napoleonic wartime ministry, installed after the death of Pitt the Younger.  In recent times, a version of the idea what revived by Gordon Brown, whose vision incorporated like likes of Paul Myners and Digby Jones, rather than Charles James Fox, into his government.  The impression intended was presumably one of non-partisan catholicity, confected to imply that Labour would not be bounded by the bubble Politics, with its snarling and often pointless caballing, porous to external influences and wisdom.

Generally, the stratagem is shamelessly manipulative.  Beneath the uncontroversial vocabulary of goodness and good sense, such invocations of "talent" often as not appeal to delusions of apolitical excellence, implying that ideology there is none, as if a plutocrat's opinions become simple common sense when they are solicited by a government with increasingly vague social democratic credentials.  It is to feign transcending the grub of politics, primarily to secure political advantage. And let's be blunt. Scottish Labour requires all of the advantages they can get their numbed political hands on. Gordon Brown's example does not appear to have dissuaded Johann Lamont, who has appointed her shadow ministerial team this week, with a promise that...

"Over the coming weeks, additional appointments from outside the world of politics will be made to bring specialist advice in their areas of expertise to shadow cabinet discussions."

On a more mordant reading, this is a cabinet of all the talents, notable in its dearth of the latter, with Labour's livelier new folk in Holyrood having too much green sap at this stage to spice up their party's fortunes alone. The party's thoroughly-rusted machine politics having been exposed, where crashing mediocrity is no barrier to gaining and retaining political positions, Lamont's references to the addition of external souls is a clear attempt to foster an air of novelty, revision, and renewal. As an aside, I see that Lewis Macdonald, third-placed in the party's recent deputy leadership election, has been appointed the party's justice spokesman.  Happily, he's no Richard Baker, but I was a little surprised by the appointment, since in recent times, I can't recall hearing a peep out of Macdonald on any of the bigger justice debates in Scottish politics. Let's see how he does.

To use a familiar press cliché, one account of the business of a shadow cabinet is to persuade the electorate that the opposition are a plausible government in waiting.  And here's why I wonder if an all-the-talents tack really assists Labour towards this goal. Johann, we have a legal problem.  In Westminster, you can always invest unelected folk with the ermine zoot-suit of a member of the House of Lords, co-opting them into your cabinet, counsels and even ministerial office. Not so in Holyrood. Being a creature of statute, Scottish Ministers are all appointed under the Scotland Act 1998, which is extremely specific about who can and cannot be a Scottish minister...

s47(1) The First Minister may, with the approval of Her Majesty, appoint Ministers from among the members of the Parliament.

The only exceptions to this are the Scottish law officers - the Lord Advocate and the Solicitor General for Scotland - neither of whom need be MSPs, but who nevertheless may participate but not vote in Holyrood's proceedings, answering parliamentary questions, making statements and the like.  Until devolution, Lords Advocate tended to be either MPs or hastily appointed members of the House of Lords, to get around this problem. What's the point in having a shadow ministry of all the talents, when the talents in it can't be ministers?

Certainly, you might think that taking good advice, and identifying individuals able to identify and articulate your aims compellingly and lucidly is a good idea. I'd agree. You might even determine to ensure that your choice souls find themselves nominated to stand for winnable seats come the 2016 Holyrood election. If, however, these talents aren't willing to campaign for political office, under our constitution, there is no possibility they can serve as ministers and cabinet secretaries. Isn't there a risk, if your most persuasive advocates and talented characters aren't standing but are standing around in television studios and the like, that all one achieves is putting your own shadow cabinet in the shade? The point becomes less problematic, by contrast, if Labour's realistic goal is not to win back office in 2016, but merely to stave off Scottish independence and strive to refit the political outfit for a successful 2021 run.  Don't expect anyone to own up to that, of course. Nobody won an election on the slogan, however sincere, of "we're shit and we know we are..."