Acknowledge it now

The starting point for the Scottish National Party, going into the Smith Commission on further devolution, must be a maximalist one. We are the party of Scottish self-government. We cannot pretend otherwise. If independence is our first preference, our esto position is the greatest level of autonomy for Scottish institutions which it is possible to be gained within the United Kingdom. 

As Ruth Davidson made clear yesterday, "devo max" as it has conventionally been understood - responsibility for nearly all of Scotland’s domestic affairs, including taxation and welfare benefits, while foreign affairs and defence would remain the responsibility of the UK government - is a non-starter. 

While this comes as no surprise to anyone familiar with the devo-schemes offered in the months before the referendum by the Labour, Tory and Liberal Democrat parties, it will come as something of a rude awakening to those moved by the rhetoric and the representations of the "new powers" apparently on offer which saturated the final weeks of the campaign.  

But over and above the narrow party debates and Westminster recriminations on the balance of welfare and tax competencies, the pro-independence minority have particular interests which they we must argue to be privileged in the Smith process. We've got to come down to brass tacks, and quickly. The Greens and the SNP have just over a week to submit their views on more powers to Lord Smith of Kelvin. The rest of us have a little longer. 

I'm sure folk are beavering away behind the scenes, but we also need practical ideas circulating out there, in the ether. If, as Alex Salmond has argued, the custodians and guarantors of further devolution are millions of our active and agitating fellow citizens, those citizens need quickly to master the Scotland Act - at least in outline - to understand what is doable and what is desirable, what is already devolved and which powers Westminster still stubbornly - and sometimes unjustifiably - clings to.

The welfare red lines I suggested last week are one such practical idea for Nationalists. Here's another: we need to seize the opportunity of the Smith Commission to put the legality of any future referendums beyond dispute, and vigorously resist any proposal to entrench the Union along the lines suggested by Jack Straw last week.

Although there was a good deal of nonsense and shadowboxing on the topic back in 2012, as loyal and long-term readers of this blog will recall, without Westminster's 2013 section 30 order under the Scotland Act, the legality of the 2014 referendum hung by a very shoogly legal thread. Calling a referendum was arguably within Holyrood's powers, but no higher than that. Without getting the nod from Westminster, the referendum was vulnerable to legal challenge, the outcome unclear, and risked putting the Presiding Officer - who must certify that Bills fall within the Scottish Parliament's powers - in an impossibly difficult place. 

Even kicking the referendum can several years down the line, with September's defeat, these issues return with a vengeance. If there was an arguable case that the referendum fell within Holyrood's devolved powers before the Edinburgh Agreement process, that case is now much weakened. The UK government imposed a number of restrictions on the 2014 poll. Firstly, they insisted that the referendum should be an either/or affair, a Yes or a No to independence. They also time-limited Holyrood's authority to call such a poll. It lapses on the 31st of December this year. Bottom line: on the current law, future independence referendums called by Holyrood, without securing London's agreement, are now almost certainly unlawful. Jack Straw's wheeze is entirely surplus to requirements. So what are we going to do about it?

From a democratic perspective, this restriction cannot be justified. Future referendums any time soon cannot be a priority and cannot seem like a priority for the Scottish Government and the Scottish National Party. But we have a responsibility to the very substantial minority who voted Yes on the 18th, and to the principle of Scottish self-determination recognised by the 2014 referendum, to ensure that future generations have the opportunity to decide for themselves whether they wish to remain part of the United Kingdom. And to do so lawfully, peacefully and democratically - at the ballot box. There can be no question of changing the rules of the game now. Jim Sillars is dead wrong about that. All we must seek is to give permanence to the basic principles, recognised by the UK government in facilitating the 2014 referendum.

Nor is this special pleading, or an unprecedented or unreasonable recognition of minority sensibility. The first section of the Northern Ireland Act 1998 recognises that "Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people of Northern Ireland voting in a poll" but "if the wish expressed by a majority in such a poll is that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland, the Secretary of State shall lay before Parliament such proposals to give effect to that wish as may be agreed between Her Majesty’s Government in the United Kingdom and the Government of Ireland." 

The rules governing such a border poll are set out in the first Schedule to the Act, and are not unproblematic in their details - but the basic principle recognised by the legislation is a sound one. If Northern Ireland's right to determine its constitutional destiny within the United Kingdom can be respected and reconciled in law with continuing Union, why not Scotland's? Surely a will to self-determination expressed in an orderly, civic movement has at least as much moral and political authority as the hard and harrowing process in Northern Ireland which culminated in the 1998 settlement.

The case for recognising Scotland's right to self-determination in primary legislation is unanswerable. It isn't good enough to leave the question vulnerable to cynical political manipulation and Machiavellian legal position-taking. Our first priority in the Smith Commission must be securing greater autonomy in tax and welfare to make a real difference to folk's lives. 

But it is crucial not only that Holyrood's powers are extended, but that the democratic principles which flowered in this referendum also endure. Securing the inalienable right of Scots to decide their own political future - giving legal force to the principles articulated in the 1989 Claim of Right - must form part of that. The new Scotland Bill could do worse that incorporating this thought into its first section: "We acknowledge the sovereign right of the Scottish people to determine the form of Government best suited to their needs". 

This is the challenge to the other parties to the Smith Commission: many of you acknowledged it then. Acknowledge it now.