Sewel: no "constitutional safeguard", just a "self-denying ordinance..."

By any reckoning, Richard Keen QC is an uncommonly political lawyer. Former Dean of the Faculty of Advocates, and now the UK government's chief adviser on Scots law, Ruth Davidson appointed him chairman of the Scottish Tories in 2013. While in office, he reportedly summoned the party's MSPs to his "small castle", and subjected them all to a dressing down for being useless. Some disgruntled parliamentarian, ungrateful for this advice, leaked the encounter to the media. This interlude seemed to do his political career no harm. When David Cameron secured his majority in 2015, and the Liberal Democrats were ejected from government, Keen took up Jim Wallace's vacant office of Advocate General for Scotland.

In that position, Keen appeared before the UK Supreme Court this morning, to speak to the devolved aspects of the ongoing Brexit case. We substantially knew what the Advocate General proposed to argue from his written argument, but the Justices afforded him an hour to expand on his points. We may hear from him again, in reply, after the Lord Advocate has made his submissions on behalf of the Scottish Government on Wednesday. 

Keen's message to the Justices was characteristically trenchant and forthright -- but you have to wonder whether it was politically wise. Keen's argument is essentially a simple one. Parliament is sovereign. Nothing in the devolution settlements changes that. Indeed, the Scotland Act specifically recognises that Westminster retains competence over foreign affairs, including EU negotiations. It also retains power to legislate concerning devolved matters. Parliament is sovereign. It can make or unmake any law: the Scotland Act is no exception.  

Where this gets controversial, however, is when we turn to the so-called "Sewel convention". Since 1998, Westminster has recognised that it will not legislate for devolved matters without the consent of Holyrood. What do we mean by devolved matters? Generally, this has been understood as (a) passing legislation which falls within Holyrood's powers, or (b) changing the legislative competence of Holyrood by adding or subtracting from its authority, by devolving more powers, or re-reserving powers which were once reserved. 

But this convention gave Holyrood very limited legal protection. In states with codified and entrenched constitutions, the central government does not have the power to abolish regional parliaments, or to intrude on their competencies. The courts would block any attempt to do so. Some people wondered: why should Scotland be any different? Shouldn't the permanence and privileges of Holyrood also receive some legal protection?

In the wake of the 2014 independence referendum, the Smith Commission report agreed that"the Scottish Parliament will be made permanent in UK legislation" and that the Sewel convention should be "put on a statutory footing". Both of these commitments were reflected in sections one and two of the 2016 Scotland Act.  But did these "constitutional protections" really make much difference? In the political domain, David Mundell and his colleagues made much of these concessions. The statutory recognition of Sewel and Holyrood's permanence were important, they said, meaningful.

That claim lies in ruins this afternoon, after Richard Keen's Supreme Court submissions. So what did he say? Characterising this statutory recognition of the convention as "a self-denying ordinance", Keen continued, it was only "a political restriction upon Parliament's ability to act, no more and no less than that" and in no sense any "qualification or inhibition upon parliamentary sovereignty."

This is all very well and good, you might well think, before 2016. From 1999 - 2016, Sewel was just a political convention. You didn't find it in any law. But surely the Scotland Act must make some kind of difference? Surely there was some point in including Sewel in the 2016 Act? If there wasn't, if the idea Westminster will not "normally legislate for devolved matters without consent" is just empty words, just hot political air, then why the devil did MPs do it? 

The same thought struck Lord Sumption during the hearing. "But it cannot be described as a purely political force once it is enacted in a statute?" he asked. "Do you submit its incorporation as an Act of Parliament makes no difference to its legal effect?" he wondered.

Richard Keen's answer was consistent with the orthodox logic of his submission - but it remains politically stark. Yes, he said. The statutory recognition of Sewel is of no legal significance whatever. "The correct legal position", he concluded, is that Westminster "is sovereign, and may legislate at any time on any matter."As Graeme Cowie observed in the comments at the end of my last blog, "anyone paying even the most superficial of attention knew sections 1 and 2 of the Scotland Act 2016 were weasel words."

That may be true of constitutional scholars like Graeme. But for ordinary folk who followed the passage of the Scotland Act through Westminster and Holyrood, who listened to David Mundell's defence of its provisions -- Richard Keen's uncompromising submissions today may come as something of an unwelcome surprise.

"A quintessential matter of political judgment for Westminster..."

Last Friday, the Lord Advocate published the Scottish Government's intervention in the ongoing Brexit litigation before the UK Supreme Court. James Wolffe QC weighed in behind the Divisional Court's judgment, arguing that the royal prerogative cannot lawfully be used to trigger Article 50. But Scotland's senior law officer also ranged beyond that. He points to the Sewel convention, arguing that if Westminster legislates to withdraw the UK from the European Union, the Scottish Parliament must be consulted. 

The Lord Advocate isn't arguing that Holyrood has a veto -- but that the UK constitution now expects MPs to canvas the view of MSPs before legislating on devolved matters. Modern understandings of the Sewel convention generally recognise that it has two limbs. Firstly, that Westminster ought to seek the consent of Holyrood before changing Scots law on issues falling within the Scottish Parliament's purview, like health, or education, or family law.  And secondly, that any changes to the powers of the Scottish Parliament itself ought to take account of MSPs' views. The same goes for any changes to the power of Scottish Ministers, whether enhancing or curtailing their legal authority.

This afternoon, the UK government have published their counterblast against the Lord Advocate's submissions (and parallel arguments, made by the law officers of the Northern Irish and Welsh administrations). You could only expect Richard Keen and his colleagues to resist James Wolffe's arguments, but as Jonathan Mitchell QC tweets this afternoon, the UK government's legal answers have a "strangely tetchy" tone, "supercilious and ill-tempered". Seasoned barrister Sir Paul Jenkins couldn't "recall a case where the government thought it wise to descend to such rudeness", which he describes as "unnecessary and inappropriate." Jo Maugham QC characterises the submissions as "fantastically" so.

In a nutshell, they are that devolution is irrelevant to the issues before the Court, that foreign affairs is reserved, and that ""the devolution legislation cannot add to the arguments" in the case "in any material way." But perhaps most eye-catching, are the UK government's observations on the need to seek consent from any of the devolved legislatures. "The Court is being invited ... to stray into areas of political judgment rather than legal adjudication." They argue the Supreme Court "should resist that invitation."

So how do they reach this conclusion? While recognising that the statutes establishing Edinburgh, Belfast and Cardiff assemblies are "very significant pieces of legislation", they contend that the Sewel convention is not justiciable - which is to say, unsuitable for judicial decision-making. It is, they say, a "legal irrelevance", just a "political convention", and not part of UK constitutional law. In support of this view, they cite Lord Reed -- one of the justices who will hear this case, In 2012, in the Imperial Tobacco case, Lord Reed described the convention as a “political restriction on Parliament’s ability to amend the Scotland Act unilaterally" -- not a legal restriction.

And as far as this goes, this is a perfectly orthodox account of the status of constitutional conventions in the UK. They have generally been regarded as "rules of constitutional morality", rather than rules of constitutional law, susceptible to enforcement by the court. But where the UK government's case hits a potential wrinkle is that Westminster chose in 2016 to inscribe this convention on the face of the Scotland Act. They simultaneously "recognised" the "permanence" of the Scottish Parliament. 

While Lord Reed was absolutely right in 2012, that the Sewel convention was only a political restriction Westminster had undertaken to abide by, this isn't straightforwardly the case in 2016. The UK government's submission - strikingly - has nothing whatever to say about this change, and the impact it might have on their arguments about the justiciability and enforceability of the convention. Back in 2014, Professor Mark Elliott tacked up this informative article about the different potential legal effects of these innovations. In its legal papers, the UK government body-swerves these implications altogether.

So does the statutory recognition of Sewel change anything? Maybe. Maybe not. As a number of us pointed out at the time, David Mundell formulated this statutory recognition in a consciously sleekit way. The new Scotland Act recognised only that "the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament." "Normally" isn't a word you encounter very often in statutes. "Must" and "may", certainly. But not "normally." 

UK lawyers, unsurprisingly, have hung up their wigs on these words. Referring to the Scotland Act, they suggest the convention "does not purport to prescribe an absolute rule." Its content is only that “Westminster would not normally legislate” And here is the kicker. They argue that:

"... whether circumstances are ‘normal’ is a quintessential matter of political judgment for the Westminster Parliament and not the courts. There are no judicial standards by which to measure such a question in the context of a political convention." 

You didn't hear this kind of reasoning - at least in public - when David Mundell was talking up the virtues of the new Act, invoking the idea of a "new parliament, new powers, and new partnerships."

For the UK government lawyers, we end with the orthodox Diceyan vision of the tyrannical patriarch, and the erratic father figure never needs to keep his word, or follow his own rules. Whatever forms of "legal recognition" or apparent constraints Westminster inscribes on its constitutional legislation, "the Westminster Parliament is sovereign and may legislate at any time on any matter ... any attempt to enforce the convention directly or indirectly would be a straightforward impingement on that sovereignty." 

Theresa May's legal counsellors may be resisting any attempt for parliament to take back control over Brexit, but they take Holyrood's subordination to Westminster for granted. For Richard Keen and his colleagues, power devolved is ultimately power retained, whatever political grace notes ministers write into the latest iteration of devolution, whatever our constitutional statutes anticipate and provide. And if the strident, haughty tone of this reply is anything to go by -- how very dare you argue otherwise. 

You can read the whole UK government submission here.

"Ane absolute power to Cass, Annull & Dissable -- Contrair to Law..."

Last night, the Lord Advocate James Wolffe QC published the Scottish Government's written intervention in the Article 50 litigation. The case is scheduled to be heard by all eleven of the UK Supreme Court's Justices between the 5th and 8th of December.  

It is, as you'd expect, a weighty legal document which you may not find instantly digestible. A quick scan throws up a range of old constitutional familiars: the Claim of Right Act 1689, the Act of Union, the Sewel convention -- and even our old friend MacCormick v Lord Advocate. But what does all this mean? When you boil it all down, what is the Scottish Government really arguing for in the Brexit hearing? 

In a nutshell, James Wolffe is pursuing two distinct lines of argument. The first focuses on whether ministers can use the royal prerogative to activate Article 50 and the United Kingdom's departure from the European Union. The second concerns the so-called "Sewel" convention. Is Holyrood's consent constitutionally necessary, if Article 50 is to be activated? 

Let's start with the first line of argument. The royal prerogative is the name given to the residual legal powers of the crown. Its exercise entitles Her Majesty's government to enter treaties with foreign powers, or even to declare war, without reference to parliament. Earlier this year, the three judges of the Divisional Court held that Theresa May's government could not use the foreign affairs prerogative to activate Article 50. The Lord Chief held that Westminster must pass legislation, to begin disentangling Britain from the EU, and stripping away the rights in domestic law connected to it. The Scottish Government have weighed in behind this argument, but appeal to different sources.

The Lord Advocate invokes the preamble to the Claim of Right Act, passed by the old Scottish Parliament in 1689 in the aftermath of the eviction of King James VII and II from the country and the throne. Parliamentarians slammed James for having corrupted his rule "from a legall limited monarchy to ane Arbitrary Despotick power and in a publick proclamation asserted ane absolute power to cass annull and dissable all the lawes." Their 1689 Act states any attempt to use crown authority to "cass, annull and dissable" laws was itself "Contrair to Law." 

Here, the 1706 and 1707 Acts of Union warrant a passing mention. As James Wolffe points out, Article XVIII of the Acts provides that  "all other laws in use, within the Kingdom of Scotland, do after the union and notwithstandng thereof, remain in the same Force as before ... but alterable by the Parliament of Great-Britain." Notice the critical point here. "At the foundation of the United Kingdom, it was Parliament ... and not the Crown, which was given power to change the law of Scotland."  Read together, he suggests, these sources confirm the Divisional Court's judgment that it is for parliament -- not the crown in exercise of its royal prerogatives -- to alter the law of the land. 

Here the Scottish Government's argument shifts forwards, towards more contemporary sources. Wolffe argues that if Theresa May was entitled to use the prerogative to activate Article 50, its effect would hollow out a range of laws currently applicable in Scotland, including the Scotland Act, which "assumes the UK, including Scotland, is a member of the EU." The devolution legislation requires Holyrood to respect the rules and regulations of EU law. So too must Scottish ministers. "The effect of withdrawal from the EU", he contends, would be to "cass, annul or disable" these provisions - a step which the Lord Advocate concludes "may not, compatibly with the Claim of Right Act 1689, be effected by an act of the prerogative alone."

If the Supreme Court accepted this line of argument, it would be for the Westminster parliament to legislate for Article 50. But where stands Holyrood then? Here, the Lord Advocate's case shifts onto different terrain, and its second main theme. Is Holyrood's consent required or not to legislate for Article 50? As AV Dicey famously maintained, Westminster is sovereign under the British constitution. Between 1707 and 1998, MPs legislated for Scotland. Devolution didn't deprive the UK parliament of this power. This is recognised in the Scotland Act 1998 itself. Section 28(7) stresses that devolution "does not affect the power of the Parliament of the United Kingdom to make laws for Scotland."  

But since 1998, the interaction between the two parliaments has been governed by a constitutional convention, sometimes called the Sewel convention. The Scotland Act 2016 recognised the long-standing rule of constitutional morality that Westminster "will not normally legislate with regard to devolved matters without consent." This convention is generally regarded as having two limbs. Firstly, if the UK parliament wants to pass legislation in areas lying within Holyrood's powers - on health say, education, or family law - MPs should seek consent from MSPs. But beyond that, if Westminster legislation would expand or contract the powers of Scottish Parliament or its ministers, this too requires consent.  A good example of this was the additional powers devolved by the Scotland Act 2016 itself.

In his brief, the Lord Advocate argues that "withdrawal of the UK form the EU would alter the competence of the Scottish Parliament and Government, and the law applicable in Scotland within devolved competence. A Bill to authorise withdrawal would accordingly engage the legislative consent convention." Holyrood's consent, he says, must be sought. 

For the sake of argument, let's say that the UK Supreme Court agree with him. Then what? Does the convention have any legal teeth? Consider, for example, the eminently plausible scenario, that the majority in Holyrood refuses to give its consent to any Article 50 Bill, unless the UK government commits to pursuing the gentlest Brexit possible. Say also that Theresa May is unwilling to bow to this pressure, and presses on with an Article 50 Bill and the hardest of hard Brexits. Is the Lord Advocate seriously suggesting Holyrood has the legal power to frustrate Westminster? In law, does the Scottish Parliament hold a Brexit veto? The answer may disappoint you, and irate headline writers everywhere. 

If you read the Scottish Government's submissions carefully, they actually conclude Holyrood has no legal power to "block" an Article 50 Bill passed by Westminster.  If the UK parliament were to choose to pass an Act of Parliament without Holyrood's consent, the Lord Advocate concedes, "the courts could not decline to recognise the validity of the resulting Act." He accepts that Holyrood has no legal trump over Brexit. Politically, of course, overriding Holyrood and ignoring its objections would embroil the two governments and parliaments in a potentially poisonous constitutional crisis. 

And it is this opportunity to put Theresa May under political pressure which the Lord Advocate seems to be angling for in this intervention. What he is looking for is a direction from the Supreme Court that constitutionally, Holyrood should be consulted about any Article 50 Bill, whether or not Westminster respects Holyrood's conclusions. This, he suggests, "would not involve an impermissible interference with proceedings in Parliament" and would represent the Court fulfilling "its proper function of identifying the constitutional requirements."

It remains to be seen whether either of these lines of argument prosper. You can read the whole submission for yourself here.

Lord Carloway's right to silence

Earlier this year, the Scottish Parliament's Justice Committee launched an inquiry into "the role and purpose of the Crown Office and Procurator Fiscal Service," to focus on:

"... its core role and examine the effectiveness and efficiency of the COPFS, how well it works with its stakeholders, and the support it provides to witnesses and victims of crime. The Committee will also examine its responsiveness to new challenges and opportunities, such as the evolving nature of crime and advances in technology."

How Scotland's independent prosecutors are functioning seems just the kind of thing which ought to interest our parliament's lead committee in justice matters at the best of times. But these are not the best of times for Scotland's independent prosecution service. The Lord Advocate's department hasn't been immune from the belt-tightening across Scottish budgets. And new priorities are always accumulating.

The stresses and strains of trying to do more with less in our criminal courts are showing. Just a couple of days ago, the government's People Survey yielded some ambivalent evidence about Crown Office staff's experience of their working environment. Early in September, a number of senior lawyers expressed concerns about Crown Office capacity. Seasoned criminal silk, Brian McConnachie QC, feared that Scottish prosecutors: 

"... don’t have the kind of resources they require to properly carry out the prosecution of crime from low level Justice of the Peace courts all the way up to the most serious crimes in the high court. It does seem that there are cases that are not being properly prepared, cases having to be put off on numerous occasions because COPFS has had trouble finding witnesses or providing full disclosure to the defence." 

Mr McConnachie's observations may be well founded or not -- the Justice Committee inquiry is an excellent opportunity for a candid assessment of the challenges facing modern prosecutors in a time of spending constraint. To build a complete picture of how procurators fiscal are doing, Parliamentarians hoped to speak to a wide range of folk who interact with prosecutors -- including judges. But MSPs face a challenge this morning, as the Herald reports that the Lord President - Lord Carloway - has written to his fellow judges, telling them that he wouldn't be giving evidence to MSPs, and that he expected every serving judge in Scotland to follow his example, from High Court judges down to Justices of the Peace. This isn't a wholesale refusal to cooperate. The committee will have the benefit of the judicial perspective in written submission from the Scottish Courts and Tribunal Service.

In response, the new Tory justice spokesman in Holyrood, Douglas Ross makes a fair point: "It seems astounding that judges or sheriffs wouldn't be in a position to give evidence on the Crown Office. They are watching it in action every day and seem like they would be ideally placed to speak to the Justice Committee on what needs to be improved," he said. So what is Lord Carloway's explanation for this prima facie curious refusal to appear before parliament? The Justice Committee have published the full text of the Lord President's letter, which sets out his reasons for this policy. And I must say, I find them extremely unpersuasive.

Lord Carloway expresses a series of objections. In the first place, he suggests it would be "constitutionally" improper for him - or any other judge - to meet MSPs "informally" to discuss the inquiry. "Any such meeting would require to be a public one," he argues, for reasons of transparency and because any comments or criticisms" of prosecutors should be made in a forum which allows them "to respond properly." This seems eminently reasonable. Judges shouldn't conduct whispering campaigns or backroom briefing against the lawyers who appear before them. Natural justice demands a more open process -- a process best served, you might well think, by judicial participation in public hearings, rather than boycotting them.

But here we turn to Carloway's second objection, and here the Lord President loses me. He begins on an admirable note of modesty. He worries he may not be best placed to speak to prosecutors' systematic effectiveness: "it is difficult for the Lord President to comment on the overall efficiency and effectiveness of COPFS as, sitting as a judge, he sees only a part of the work of COPFS; in effect the end product of the Crown's work. Inevitably that is a very limited perspective. It would be inappropriate to draw conclusions based on subjective experience of a small pool of cases and therefore a narrow view of these matters." But he also extends this logic to his brother and sister judges. His legal secretary writes: "He does not consider that individual judges and sheriffs are in a position to comment on the various issues, given that such comments would be based either on anecdote or an incomplete understanding of the facts."

This is a baffling rationale for barring his judicial colleagues from giving evidence. Professor James Chalmers put the central point neatly this morning. "If anyone had a 'complete understanding', the Committee could just interview them and be finished in an afternoon." This is basic social research. You don't have to know everything about an organisation to be able to say something significant about your experience of how well it works. Of course, this perspective will be limited. Of course, we should be cautious about drawing wide-ranging conclusions from witnesses with partial perspectives.

But contrary to the Lord President's assertions -- judicial experience isn't just empty anecdote or irrelevant subjectivity. Judges see the law in action. It seems perverse to argue that just because judges don't know everything about how the Crown Office operates, they shouldn't share any of their many informed impressions about the quality of the "end product" of prosecutors' work.  And after all, aren't its "end products" quite important, in evaluating the effectiveness and efficiency of an organisation? 

Lord Carloway - who deals almost exclusively with appeals work - may be unable to speak to the effectiveness mass of routine prosecutions for lower level offending which takes place, for example, in Glasgow Sheriff Court. But why prohibit those judicial officers do have that insight from sharing their experiences with parliament? 

It is not as if the Appeal Court maintains a self-denying ordinance in these matters. Lord Carloway and his colleagues fairly often pass general comment on how Crown Office lawyers handle their cases, extrapolating from individual facts and circumstances to more general problems and challenges faced by prosecutors. A single case might be an "anecdote" -- it might also neatly encapsulate problems which are more systematic. This is precisely what Margaret Mitchell's Committee is trying to do, according to their own lights. 

Of course individual judges don't have a complete picture of the issues facing COPFS, but they must have a perspective which could usefully add to that picture. Ultimately, it is for MSPs to pull that picture together. It is for parliamentarians to weigh up the credibility and reliability of the evidence they hear. It is for them to make the judgements about how far they ought to extrapolate from witnesses' observations, and how far they should treat the evidence they hear with caution. Lord Carloway invokes constitutional propriety in his letter. Just how constitutionally appropriate is it for the Lord President to take it upon himself effectively to decide these questions for the Committee in advance? Strange times.

Escaping the Mire

Longstanding readers of this blog know what I think about the Offensive Behaviour at Football Act, and the events which led to its introduction. Alex Salmond seized on an Old Firm fracas in 2011, arguing that this so-called "shame game" required special legal measures.

Elected with a majority in the Holyrood election of that year, there was no restraining the former First Minister. He tapped unlucky Roseanna Cunningham to be the ministerial face and voice for a policy which was justified by sweeping populist rhetoric, but which was fundamentally reckless and un-thought-through.

A succession of embarrassing ministerial performances followed, in the chamber, and in the media. Kenny MacAskill sputtered "matters" relentlessly on Newsnicht. Roseanna suggested, depending on the context, that genuflecting or singing the national anthem might get you a jail term under the new rules. Unlucky civil servants were drafted in to give legislative shape to ministers' vague aspiration to use the criminal law still further to intervene in the regulation of fan behaviour in and around football matches.

Folk in parliament rhubarbed. Folk outside parliament rhubarbed.  Folk inside the SNP rhubarbed, including elected members, who nevertheless, cast their votes for the measure under the stern gaze of party whips. I remember taking to the airwaves against - now - Green MSP John Finnie. In those days, he was a Nationalist politician, and vociferously defended the legislation, accompanied by retired coppers and politically-helpful prosecutors from the Crown Office. None of this eliminated the fundamental problem with the law. 

To borrow a phrase from one of Scotland's judges, it was "mince." Certainly, the Act "sent a message" to hooligan elements who hover around football clubs and matches. But that message was as muddled and confused as the legislative provisions themselves.  Polling evidence showed - and has shown since - that the Act is supported by a majority of the public. But popularity doesn't transform a bad, paradoxical law into a good law. Being a lawyer, these problems perhaps excessively preoccupy me. But even if you are broadly supportive of the idea of prohibiting threatening and hateful speech in football grounds and outside them -- you still can't escape the conclusion that in 2011, Scottish ministers had no idea what they were doing, or why they were doing it, or why they were doing so on an "emergency" timetable. It was a picture of recklessness. 

The Act they left behind them is an appropriate testament to their cack-handedness. Getting your head around what the legislation does and does not criminalise can be tricky. That's one of the failings of the law. But it outline: it creates two new criminal offences: (1) offensive behaviour at football, and (2) threatening communications. The first offence applies in a range of locations. If you are in and around the ground of football matches, or on a journey to and from the grounds, it applies to you.

It also applies to you if you are in a public space, with a regulated match playing in the background. If you begin shouting and bawling at folk on their way to matches, the Act catches you too. There are some paradoxes about this. The law treats you as "on a journey" to a match, whether you attend, or even intend to attend a match. This even includes overnight breaks. Philosophically, we are all, potentially, on our way to a regulated football match. At least according to parliament.

But the new crime focuses on offensive behaviour. The law recognises different kinds of bad behaviour. It criminalises "expressing hatred" against groups or individuals, on the basis of their perceived religious affiliations, or on the grounds of sexuality, disability, nationality or race. This might be singing "the Famine Song," or saying "I hate the Orange Order", as you prop up a bar in which the Greenock Morton v Partick Thistle match is playing in the background.

But the law also extends to "threatening" behaviour, and  -- most controversially -- "behaviour the reasonable person would find offensive." The old common law offence of breach of the peace only criminalised behaviour which could "alarm the ordinary person" and "threaten serious disturbance in the community." The OFBA goes far further. The old offence of breach of the peace was certainly vague. Making "offence" the criterion for a criminal offence is even more problematic.

Recognising this, SNP ministers introduced what they characterised as a "safeguard." It wasn't enough for behaviour to be hateful, threatening, or offensive. In order to be punished under the new Act, it had to be "likely to incite public disorder." This sounds like a high hurdle for prosecutors to overcome. The SNP's justice team represented it as such to the Scottish Parliament's Justice Committee. But the detail of the law blew the lid from this "safeguard." 

Why? Because in the absence of any actual members of the public to be scandalised into violent disturbances by offensive behaviour, the Act instructs sheriffs to invent turbulent soccer fans or supporters who might have been provoked into violence by the offensive singing, or banners, or behaviour. The Act provides that courts should discount the fact that "persons likely to be incited to public disorder are not present or are not present in sufficient numbers." Defenders of the OBFA often claim that they are objecting about sectarian singing "in context." But the Act specifically requires prosecutors, police and courts to ignore the real context where songs are being sung, or behaviour is taking place. 

Singing the Sash in die-hard loyalist pub, for example, is unlikely to generate any mischief. But ministers were determined that this kind of - unattractive - behaviour should be prohibited by the legislation. In so doing, they made a mockery of the idea that the "public order" test was any meaningful limitation to the broad new offences created by the Act. 

So what's to be done? Repealing the Act simpliciter? As defenders of the legislation point out, what kind of message would that send to the diehard bigots, mischief-makers and trolls? And for that matter, what alternative is the opposition in the Scottish Parliament proposing? It is all very well to carp from the sidelines, but what constructive solution are James Kelly and his allies offering? Those are the Scottish Government's lines in today's spinwar. But there are a few obvious, practical solutions which the Cabinet Secretary for Justice, Michael Matheson, ought to be considering.  

In passing the Act in 2012, Holyrood gave ministers considerable power to amend the most controversial parts of the legislation.  We don't need new legislation to strip out the "behaviour the reasonable person considers offensive" provision of the Act.  Section 5 of the OFBA gives Michael Matheson the power to strike that provision from the statute book tomorrow. You'd be left, criminalising "expressions of hatred", and "threatening" behaviour.

It would be an altogether tougher spot, for Mr Kelly to defend abolishing those offences. Unless, that is, you approve of threatening behaviour in sports grounds. But the Act goes further. It also empowers ministers to draw a line through the daft provision, which instructs judges to invent potential incitees to public disorder. Again, this wouldn't require new legislation. Michael Matheson need only lay the order before Holyrood, and MSPs need only vote for it.

If the Scottish Government took both of these steps, the law would be considerably tightened. Procurators fiscal would have to establish (a) hateful or (b) threatening behaviour, and beyond that, they'd also have to establish that behaviour was "likely to incite public disorder" in the real context in which it takes place. That is a far higher test for prosecutors to satisfy, and doesn't transport our sheriffs to a fantasy land of invisible, touchy Queen of the South fans, or furious Dons, tired of unsubstantiated allegations of sheep-shagging.

If these reforms were introduced, in a trice, the Scottish Government would have eliminated the Act's most controversial (and badly thought-through) sections. The temperature would be turned up considerable on the opposition -- some of which is principled, but a good part of which is calculating, shallow and partisan. 

There is no shame in admitting you got things wrong. It was a bad Bill, introduced after a bad process, badly defended and badly enforced. To a significant extent, the outgoing FM must bear the burden of having foisted this inconvenient controversy on his successor. But there are obvious opportunities here for Nicola Sturgeon's government to revisit its errors, to make the law better, and to turn up the heat on their opponents.

As things stand -- the Scottish Government seems confident it can win the PR battles against James Kelly and his allies. It seems to have given scanty thought to reform, and to seizing the initiative from the serried ranks of their opponents. They seem primed to stare defeat in the face, but well-prepared to grouse about it. But for this critic of the legislation, they can do much, much better than that. They said they believed in this measure. Let them fix it. If they don't take these opportunities, they have only themselves to blame.

Legally, can Holyrood "block" Brexit?

"100 days on from the referendum and with up to six months until the triggering of Article 50 it is time the government got serious and put our economic interests and membership of the single market at the front of their negotiating plans. With a clear majority in the Scottish Parliament for retaining membership of the single market - expressed as recently as last week - it is difficult to‎ envisage the circumstances in which the Scottish Parliament would give consent to any legislation that did not guarantee this."

So said Nicola Sturgeon's Bexit minister, Mike Russell. But what did he mean? What precisely can and can't Holyrood do, in resisting the many-layered legal complexities of Brexit? Several souls have asked me about this other the last day or two. So here's the lightweight primer on the law. Brace yourself. It gets a bit tricky.

First thing's first: Holyrood has no legal power to veto or block Brexit. Start with the basics. Under Schedule 5 of the Scotland Act, foreign affairs – including Britain’s relations with the EU – are matters reserved to Westminster and Whitehall. Under section 29 of the legislation, Holyrood is prohibited from passing its own laws concerning nuclear weapons, defence, and so on. Legally, these are Westminster's purview. And because they are Westminster's purview, MPs and the UK government, don't need the Scottish Parliament's permission to alter the law on reserved matters. 

But there are some kinds of Westminster legislation which do require the nod from MSPs. This isn't a matter of strict law - but of constitutional convention. This convention was set out in section two of the 2016 Scotland Act. "It is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament," it said. As I pointed out at the time, you can feel the caveats in the statutory language: "normally", "recognised." Whitehall's clear view is that this section doesn't limit the sovereignty of the London parliament to make or unmake any law whatever, irrespective of Holyrood's complaints.  

But this statutory recognition includes only part of the convention. The UK government has consistently recognised that Holyrood's consent is necessary, if Westminster wants to change the legislative competence of the parliament, or to add or subtract from the executive competence of Scottish ministers. One good example of that was the 2016 Act itself. David Mundell recognised that the Edinburgh parliament had the right to refuse the new powers, and a vote was taken. 

This convention proves some - very limited - constitutional security for Holyrood from the prospect of Westminster abusing its sovereignty to reverse its decisions in devolved areas. But it doesn't apply beyond that. Holyrood’s consent clearly is not necessary to activate Article 50. Only politics can prevent the hard Brexiters in the Tory government from dragging us out of the single market.

Through some creative  lawyering, you might just be able to cobble together an argument and get a case up on its feet.  In the High Court in Belfast, litigants are attempting precisely this. But their chances of victory are remote. The court case is really about boosting the political salience of the situation in Northern Ireland. As someone tweeted as me, in response to my Times column this morning, if Scotland counts for "nothing" in Brexit Britain, how much the worse for Ulster and its people? 

So that's the bottom line. Holyrood's consent is only needed if Westminster wants to legislate about devolved matters. But even then -- failure to give consent can be overriden by the exercise of parliamentary sovereignty. So what, then, can Mike Russell have meant when he said Holyrood might refuse consent for Mrs May's Great Repeal Bill? And what effect would refusing consent have anyway?

You've got to recognise that EU law is everywhere in UK law, and it isn't neatly packaged in one big book of rules, embossed in gold and bound in red buckram, easily tossed onto a bonfire. EU norms are enshrined in a dizzying array of documents, from the European Communities Act 1972, to ordinary legislation, to regulations, to the Scotland Act itself. In terms of UK constitutional law, some areas principally regulated by EU law are devolved, others not. The UK Equality Act 2010, for example, gives effect to European non-discrimination directives -- and is for the main part, a reserved matter. Holyrood can't amend or repeal it. 

Fishing, on the other hand, is only very partially reserved to the London parliament. But to ensure Scottish Parliamentarians didn't go voyaging on stranger tides, in 1998, MPs decided to constrain the new parliament's powers. Section 29 of the Scotland Act requires all Scottish legislation comply with the rights set out in the European Convention on Human Rights -- and EU law too. That's why, for example, the Scottish Whisky Association were able to take the SNP's minimum alcohol pricing legislation to court. The liquor manufacturers argued that the legislation interfered, unlawfully, with the European single market, by discriminating against producers able to pump out plonk on the cheap, by requiring them to sell their products at an inflated cost.  The requirement to tender for ferry services is another -- controversial  -- example of EU law at work.

The critical point is -- the Great Repeal Bill seems likely to stretch across reserved and devolved issues simultaneously. Some parts of it will require the Scottish Parliament's consent, others not. But as Professor Colm O'Cinneide, from UCL recognised, the legislative consent motion before Holyrood "may have to be drafted in broad terms, and of course will need to cover EU law provisions" written into Scotland's devolution settlement.

Which is where Mike Russell's "block" comes back in. Under the Scotland Act, Holyrood must obey EU laws, on fishing, agriculture, non-discrimination. If the PM wants to strip out those rules or to change Holyrood’s powers – she will need to secure the consent of a majority of MSPs. As things stand, it is perfectly conceivable that Scottish politicians will decide to defy Westminster. Mrs May would then have to decide whether to ignore their objections, riding roughshod over constitutional principles -- or to respect them, and leave Holyrood subject to EU law, but paradoxically, outside the European Union.

It isn’t necessarily obvious, however, why our parliamentarians would refuse their consent. It isn’t the Scotland Act restrictions which guarantees the rights of Scots to move freely, and to work and resettle across Europe – but the UK’s dying EU membership. Many EU rules are, in principle, about sharing burdens as well as benefits, while keeping an eye out for backsliders, free riders and chancers. Every state, for example, is likely to be inclined to discriminate in favour of its domestic industries in the economy, and to cultivate a more unfree market. EU single market rules seek to eliminate this across the whole bloc. 

But why keep the rules, when you aren’t part of the club? Unless the requirement to adhere to EU law was stripped out of the Scotland Act - we'd be looking at carrying their burdens, without seeing their benefits. An invidious position, no? There are a few more and less convincing answers to this objection. The symbolism of such a vote in Holyrood is obviously significant. Most folk won't follow the legal niceties of what the consent procedure actually represents. It will, inevitably, be seen in simpler, more political terms. Does Holyrood capitulate or not in the teeth of the Tories' haughty insistence that Brexit is their baby, and it will be midwived into monstrous shape only on their terms? That is how it is likely to be seen - presented - and understood by many.

For the SNP, retaining EU law might also represent a statement of intent about an independent Scotland’s future inside the Union. Why radically diverge from EU rules, when you want to join the club, sooner rather than later? Shadowing (some) of the regulation could be seen as a significant gesture of this kind. But you could do this, without making it a legal requirement to legislate in a way which is compatible with EU principles. And let's be honest: eliminating EU regulation would create opportunities as well as challenges, to take policy positions prohibited by single market rules.  

Alan Page, Professor of Public Law at the University of Dundee, has identified another - slightly trickier - issue with the Great Repeal wheeze, in his short paper for the Holyrood committee scrutinising Brexit. The key point is identified in paragraph 13 of Professor Page's note.  He is concerned about the possibility of UK government ministers disapplying and altering EU law concerning devolved matters in Scotland, without any reference Westminster, or to the Edinburgh government or Parliament. Law is made in many ways. One important source is what is called "subordinate legislation" - generally powers exercised by ministers in the government, often with lighter scrutiny from MPs than full-blown Act of Parliament. Mrs May's government seems likely to use this tool to prune the EU law which applies in Britain. But there's a problem. Professor Page:

"At the moment there is no requirement of the Scottish Parliament’s consent to UK subordinate legislation transposing EU obligations in the devolved areas; nor is the Parliament routinely informed about such legislation. Were obligations to be transposed by UK Act of Parliament the Scottish Parliament’s consent would be required, but if they are transposed by subordinate legislation its consent is not required. The situation could thus arise in which the UK legislated extensively in areas devolved to Scotland without seeking the consent of the Scottish Parliament as there would be no requirement of its consent in relation to subordinate legislation altering the effects of EU law in the devolved areas. In my view, this represents a significant potential gap in the framework of Scottish parliamentary control over UK law making in the devolved areas, which the Scottish Parliament should be alert to the need to close should UK Ministers be given the power to revise EU law in the devolved areas."

If Mrs May's Great Repeal Bill laid the foundations for this kind of arbitrary mode of decision making, without reference to devolved institutions, the Scottish Government would understandably hit the roof, and refuse to give their blessing to her Bill. They would be right to do so. From a political perspective, all of this is pungent. Legally, however, Holyrood can really only stage a weak, rear-guard action on the Brexit fallout. So long as we remain tethered to the UK government, we're tethered to its fate, outside of the European Union. Despite Mr Russell’s fighting talk, the legal scope for Holyrood to make Brexit mischief remains very limited. As for the political opportunities? Well: they're a different matter entirely.

19th September, 2014

On the 19th of September 2014, I wrote a piece entitled “under the low sky.” It is an evocative line – stolen – from a book I read years ago about the experience of living in the Netherlands, where the horizon presses down on you, without the thrown elbows of mountains to keep it at bay. But the phrase seemed apt to the slate-grey Glasgow afternoon which the indyref left in its wake, and the half-throttled sense of sadness I felt, as the long day wore on, accumulating sorrows. 

Unlike many folk, I felt no real hope or anticipation that the Yes campaign would carry the day two years ago.  Defeat, even a narrow defeat, seemed almost inevitable. When Clackmannanshire declared, the night was already dead for me. I know some folk waited and waited up, in hope and expectation, but Don Quixote’s horse had already been shot out from under him. Sancho Panza was floating, face down, in the Clyde. Being right wasn’t much of an emotional salve, it transpired. 

As the Orcadians said No, I escaped from Pacific Quay into the cold but fresher night air, as the wind chased down the currents of the river and the BBC building behind me fizzed and sweltered and thronged. Big Kevin McKenna, built like a Renaissance cardinal, was sucking a sanguine cigarette outside. We talked, briefly, only to be interrupted by the jubilant figure of Margaret Curran. I remember the Labour MP did a kind of jinking danse macabre as the majority No vote accumulated, a sort of hirpling Scottische. You shouldn’t begrudge your opponents their successes, I suppose. But that little jig. I’ll never, ever – quite – be able to forgive Margaret Curran for her little jig. 

(Though I suppose, as the saying goes, she’s not jigging noo. “Even victors are by victories undone.” In the aftermath of the 2015 general election, I happened to bump into the former Scottish Labour MP in a pub in Oxford during a flying visit. Sauntering past her as she walked in to the Lamb and Flag, I was stunned to hear myself say “You’re Margaret Curran. Tell me. How are you bearing up?” As luck would have it, Curran clearly had no idea who I was, or any clue about my separatist politics. I left her with a kind word, undisabused, as an apparently sympathetic Scotsman, safely south of the wall.)

But back in Pacific Quay, in the early hours of the 19th of September 2014, Margaret was still jigging. I decided to leave before the emotion of the moment overtook me, and I said something I might come to regret. Abandoning all hope of securing a friendly cab out of there, I made my escape on foot, marching out along the banks of the river, an unsteady, half-gralloched figure, lurching between sorrow, rage and resignation. 

My company for the first part of this journey – perhaps curiously – was Adam Tomkins. The Glasgow law professor was cutting his way along from the BBC towards Better Together’s victory party in the Hilton, where the corks were already popping.  Adam behaved with all the kindliness and consideration you could expect from a political opponent at their moment of victory – much more, really. The balance of the way home I spent alone, eyes stinging, bitter, sad. I turned in, and slept a dull sleep without dreams. It is only election night I’ve been unable to see through. 

I’ve never known at atmosphere like the one I woke up to in Glasgow the next day. The result hung over everything. It leached all the social colour from the day. The weather provided an obligingly grim backdrop. The gloom was general. I live in the south side of the city, Nicola Sturgeon’s constituency. The Yes vote prevailed here - one of the few reassuring things about the immediate aftermath of the poll. The national picture may have been disappointing, but amid everything else, at least you read your own community correctly. 

I sat in a pub. I watched Alex Salmond resign before a dumb room, eyes all fixed on the telly. A man ordered another double shot of strong liquor. A fourth pint suddenly seemed wise.  And for those drinkers who quietly concluded that independence wasn’t a sure bet, who voted no? It was a scene of victory without jubilation. It must have been an odd experience. An unseen hand kept squeezing away at my throat. I made rash promises to myself that I’d never write about Scottish politics again. That I was done with it all. I might take up something wholesome like gardening instead, or skydiving. Half an hour later, I’d written this blog. It is often a painful – even embarrassing – thing to rake back over your old prose. This, at least, evoked the experience I remember. 

I am not one of life's joiners, despite my partisan inclinations. I'm not a marcher.  I didn't find myself, politically, during the indyref. I am a crappy and a complacent activist. An inactivist, essentially. The experience didn't transform my ideas of politics. But like many folk of my generation, it was, and remains a profoundly important - even seminal - moment from which it will be difficult to escape for some time to come. Whether or not we revisit the national question later rather than sooner, the autumn of 2014 will cast a long shadow for decades. But where are we now, two years on? Whither now, for the calculating Scottish nationalist with the long view? It has all become tremendously complicated. I wish I could see my way through it all more clearly.