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.

The sentimental European

Purists hate the politics of the big coalition. This much seems uncontroversial. Divide a country - any country - of sufficient bigness, richness and complexity into two massive tribes, and you form uncomfortable, often incoherent coalitions. You quickly find folk vote your way for reasons you disagree with, and worse, which you disrespect. You find people you think of as your political fellow travellers voting for the other side, because some detail -- piffling to you -- torments them, some wrinkle in their soul, a different perspective. 

Purists also - in their bones - hate the cynicism of political campaigns.  It isn't my reasons for believing in Brexit, or supporting our continued membership of the EU that matters. Not to the instrumental activist. What matters is the arguments and reasons which might convince you, rather than those which convince me. And if I happen to hve an unpopular ideosyncratic view, unless I can bracket my own sentiments, unless there are a lot of people who share my outlook, I can't be an asset to your cause.

On the 18th of September 2014, I spent much of the day standing outside a kirk near Queens Park, Glasgow. The area was Yes inclined. It was a pleasant -- but doomed -- way to spend the day.  I'll never forget the woman who left the polling station, buoyant. "If we vote Yes, we automatically leave the EU" she said, having swallowed the Better Together line, hook and sinker. When she bounced out into the balmy afternoon, she had cast her Yes ballot. There was no use remonstrating, no use suggesting she'd misread the arguments of reached a - truly perverse - conclusion based on the two campaigns. I waved, dumbly, as she toddled down the street, having put up token resistance to her analysis. It wasn't worth it: her ballot was in my pile.

The EU referendum has brought out the awkwardness of the big coalition in spades. Pro-European Scottish Nationalists have watched a scorched earth economic case, orchestrated by the same folk in the Remain campaign who assured us that Scottish independence would result in an economic crucifixion. It has not been compelling. On the other side, eccentric - perhaps - but good-hearted, unbigoted leave campaigners have found themselves aligned with an often odious campaign, with which - I am sure - many would rather having nothing to do in any other circumstances. As I say: big coalition politics is difficult. It is often uncomfortable. It often feels a little dishonourable. And it makes for strange, incoherent coalitions. 

It is important to understand and scrutinise both campaigns - and both arguments - in this light. Different arguments will convince different people. There is no necessary hypocrisy in this. I would encourage you to vote Remain tomorrow. But the reasons which persuade me may not be reasons which persuade you. Some other advocate -- on either side -- may more effectively speak to your concerns than I can. Heed them. Follow your own best judgment. We are large. This is a country of several million people. Domestic politics is still diverging in the home nations. We contain multitudes.  

But speaking solely for myself: the European ideal still seems to me a noble one. The academic world is full of European citizens. I am surrounded by folk who live here, love here, work here, labour here, raise and educate their children here, because of the free movement of people. In the 2014 referendum, European citizens voted on the constitutional future of Scotland because -- at its most simple -- they are part of us. They choose to live here. They persevere here. They have their pleasures and their pains here, their friends and enemies. They have sparkling evenings, and dull times, they share laughter and kisses and rows and sorrows. They do precisely what the rest of us do. You may say this is sentimental. Very well: it is sentimental. But quietly, undemonstratively, this decision was one of the noblest things the SNP has done in office.

I cannot look at these people in the eye tomorrow - these colleagues, these allies, these friends - and vote to Leave the European Union. Unlike Jim Sillars, I cannot and I will not prosecute my indyref feuds with the European Commission and European governments by turning a cold shoulder on my comrades, who are part of us, who live with us, whose children are our friend's children, who elaborate Scotland and Britain's still largely monochrome tapestry.

They are immigrants and emigrants, just as Scots have traipsed across this globe for centuries, inflicting their lousy patter on the peoples of the world on the banks of the Hudson, in the scorching territories of Australia. They are people -- people who I have watched suffer, largely in silence, through this referendum. Tomorrow too, they will be silent in the ballot boxes, their votes missing. But one of my Dutch friends, who has lived in Britain for fifteen years, put it horribly starkly. "I will never forget the headlines. Stay or go, I will never look at you the same way again."

I believe that Scotland has a European destiny, inside the UK, or outside of it. For me, this is existential. Despite the slurs and the sallies, the wits and the wags and the denigrators, ours is not and has never been a separatist movement. I have no interest in narrow nationalism. Too often too isolated in this debate, the leadership of the SNP has forthrightly made the case for immigration, uncowed, unbend, courageously. They are to be commended. Alex Salmond recently put it well in the Oxford Union. We know being involved in mankind is nothing to fear. We know that the lean sphere of sovereignty is a boyhood fantasy. We aren't afraid of negotiating, even negotiating hard-headedly, in our collective interest. We abjure easy solutions to complex problems. 

Confident people -- truly confident countries -- do not hirple through their collective lives, cramped and shivering. They do not go into the darkness of the future with fear. They are emboldened by their own best traditions. They are fierce friends. They don't cringe.  They see opportunities, more often than they tremble. As a Scottish Nationalist, I am soaked in pessimism about the United Kingdom. This much you know. But this is a land with a better tradition which tomorrow will be weighed in the balance. I have no confidence about what the result might be -- but I know this. 

Despite my long-standing pessimism about the UK, I'll be exiled to the doldrums of unhappiness on Friday, if Britain crashes out of the European Union. The bottom will - once again - be speared out of what I thought was a bottomless bucket of disappointment with Britain. This may seem perverse. You are right. The force of those multitudes again, I suppose. But in my bones, I'm an optimistic soul. I remain a Scottish nationalist with regrets, still somehow stubbornly attached to the possibility of a better Britain. It will be a painful to discover my most harsh suspicions about this union are true. I'm not trying to be cute. I will be horribly unhappy to be confirmed in my prejudices.

Tomorrow is one of those days in our history which will try Britain's soul. It is difficult, even to begin to calculate the consequences of a vote to leave. Yet I cast my ballot, more in hope than expectation. And I cast it for my friends, sentimentally perhaps, but unrepentantly, a European.

Spinning Plates

It has been a slow April here on the blog. For the past couple of weeks, the inspiration for political writing has escaped me. Everything I have attempted has been lumpen, unreadable dross. But the mojo - happily - seems to be returning as we head into the final week of this Holyrood campaign. In the Times this week, I wrote a rather abrasive explanation of why I'm sick to the back teeth of Ruth Davidson, Scotland's most overrated politician. The Scottish Tory leader has emerged from this Holyrood race trivialised by her antics, a rather diminished figure.

 Although personally popular by Tory standards, Labour's weakness putting her in contention for second place, Davidson has run a relentlessly vacuous campaign which does her little credit. If straddling a bison and donning a captain's hat was all that was needed to detoxify the Tory party - Annabel Goldie should have tried it years ago. Though I admit, it is hard to imagine the late David McLetchie wielding an ice hockey stick or racing about on a snow mobile. Here's an excerpt:

But I'll be honest with you: I do not enjoy blogging elections. Unless you focus on some pernickety point of electoral arithmetic, or one of your opponents adopts a truly objectionable or dishonest policy, elections can be tough things for partisan writers who nevertheless do not want to become propagandists or cheerleaders. That'd be even more objectionable than bad writing. Even more intellectually compromised. Even duller.  And in any case, the role doesn't suit me. If this is what you're after, you'll receive a far superior service elsewhere. 

I will, as you might expect, be casting my constituency vote for Nicola Sturgeon in Glasgow Southside, and for the Nats on the Glasgow regional list too. I do so with few reservations.  I'm a fourth generation Scottish Nationalist. I'm in this for the long haul. Like the overwhelming majority of the party's supporters, I hope I'm no dupe, no drone, no uncritical robot.

I suspect I've enjoyed the personalisation of this Holyrood campaign about as much as the First Minister -- which is to say, not a great deal. The politics of personality isn't the kind of politics which attracts me most. That said, there is a great deal to be said for voting for folk whose judgement you trust, whose broad outlook you share.

Yes, politics and government is about policies. It is about what you achieve, and only passingly about who achieves it. But given the breadth and complexity of modern government, given the breadth of offices and issues which the next Scottish Parliament and Government must consider -- none of us can be the masters of every brief.  You might know your way around the economy, but be dumb as a brick about justice, welfare, the NHS. You might be hot on carers, or renewables, or tertiary education but cold outside your area.  Whatever. None of us - seriously - are capable of weighing all of the parties' policies in the balance.

Within the limits of the information available to most of us, however, we can judge the folk involved, weighing the kind of person who takes the decisions, and the sort of values they will bring to bear in making them. Nicola strikes me as a good woman, a smart woman, a sincere woman. She is aware of her limits. She makes no pretence at infallibility. But she's tough, fierce -- and most attractive of all, perhaps -- has visibly grown as a character.

You get the feeling that Alex Salmond sprang fully-armoured into life with a sharp tongue and a quick brain, an assured -- perhaps too assured -- political patter merchant even as a young man. The current First Minister has tracked a different trajectory. One of my friends compares her to Andy Murray - there is a residual touch of reserve there, of native shyness overcome, which I think many Scots recognise, recognise in themselves, and find attractive.

The tailored Mother of Dragons we see before us is hard won. This is not to imply the Sturgeon persona is confected, or artificial. We, all of us, play in and with roles. For my part, I suspect Nicola's now universal recognition actually makes life easier for her, as she has the battle-armour of the persona gird about her, wherever she goes. It is bound to burn off any residual shyness or reserve.

I'd be concerned if the campaign was only the game of personalities -- but it hasn't been. The SNP manifesto has a heft and reality to it which is to be commended.  We see an emergent Scottish governmentality, and an emphasis on universal services which is - just beginning - to pull together into a coherent story of Scottish self-government.  What is striking about this campaign is that it is only - really - the Tories who are in open dissent from the idea that prescriptions ought to be free, that tuition fees ought to be paid, that every baby should be boxed. Johann Lamont's "something for nothing culture" riff has been dumped. But there is a great deal more to do to weave all this into a coherent whole.

But if you have different political ideas and different allegiances, I'd encourage you to exercise them. All political activity involves compromises of some kind. Big parties, small parties, large movements, small campaigns -- all of them involve trade offs, and a cold eyed assessment of what your priorities are, and what internal compromises you are prepared to put up with.  People are generally reluctant to admit this is true -- particularly during election time -- but in my experience, most Nationalists understand an awful lot more about the compromises inherent in politics than many of their critics give them credit for.

You find individual policies - missing in the SNP manifesto - in the Labour, Green and Liberal Democrat efforts with which I have considerable sympathy. I'm sure supporters of other parties will find material for their own heresies and dissents in the pages of their opponents' platforms. This isn't the end of the world, despite all the grisly point-scoring which inevitably tends to accompany it.

Some folk, of course, are incorrigible puritans, nature's commissars determined to execute any perceived backsliding from their own positions. I salute them. They're welcome to their purity. But government is inevitably an adulterating enterprise.  It is a game of spinning a thousand plates, and trying to minimise the number which fall to the hard earth with a clatter.  Taxation, education, energy, justice, local authorities, farms and forests, the health service and social care, an emerging Scottish approach to disability and carer benefits -- the constitution.

If there's juggling to be done, I trust Nicola to do it.

Just how solid is Scottish Labour's list vote?

Amid all the process and horse race stuff in this Holyrood election, there is one rather important question going conspicuously unasked: just how solid is Scottish Labour's list vote anyway? 

All the mischief has focused on the loyalty of folk likely to vote SNP in the constituencies. Will they stick with "Nicola Sturgeon for First Minister", or split their tickets, lending support to some other party for the regional calculation? This is all well and good. But the endless, circular conversation about the virtues and vices of #BothVotesSNP overlooks the fact that it is Kezia Dugdale's party whose fate will largely be determined by the d'Hondt calculations and the weight of support she can command on the regional ballot. 

And Scotland's electoral history being what it is, I wonder if Scottish Labour aren't more vulnerable to - potentially catastrophic - leakage in regional support than we've generally noticed. As countless commentators have pointed out, for years, in the wake of devolution, Labour didn't have a second vote strategy - they didn't need a second vote strategy - being comfortably returned to office on the back of the first-past-the-post constituencies and their reliable confrères, the Liberal Democrats.  

In this model, if Scottish Labour's electoral fortunes were to improve, you'd expect this to express itself in constituency gains rather than regional progress. But if the Holyrood map broadly follows Westminster's this election, the whole basis of Labour support will have been rearranged on a regional basis. In fairness, Scottish Labour are pushing their own #BothVotesLabour message. I'm sure old time Labour supporters who have stuck with the party will heed this and maintain a disciplined ticket. But the party aren't going great guns with the message. Which seems a decidedly strange thing, considering how critical a solid, loyal regional ballot is for the party's standing in the next parliament. 

Look at this historically. Take 2011. Alex Salmond's SNP secured 902,915 constituency ballots, and 876,421 in the regions. We shouldn't understand this as a straightforward 26,494 drop. The regional tally will include a decent whack of folk who voted for other parties in constituency contests. My favourite 2011 illustration of this dynamic was Ayr. A straightforward SNP vs Tory runoff, Conservative candidate John Scott secured 12,997 constituency votes, and a 1,113 vote majority over his SNP opponent. But in the region, the folk of Ayr gave the Tories only 8,539 votes, a drop of 4,458 on their constituency figures - and the SNP were the obvious beneficiaries of the Tory regional slump. Chic Brodie took 11,884 constituency votes, but Ayr's regional tally gave the Nats 14,377, an increase of 2,493 which put them 5,838 regional votes ahead of the Tories who'd routed their constituency campaign.  

So what about Labour? In 2011, Iain Gray took 630,461 constituency papers and just 523,559, losing over 100,000 votes between ballot papers. Like the SNP picture, we shouldn't oversimplify what was going on under Labour's grand totals. It almost certainly wasn't a tit for tat drop. Voters will have moved in, and out of, Labour's constituency and regional columns. But this was a discernibly squishier performance than the Nats in a closely contested campaign. In the event, Labour holds in constituencies in their traditional heartlands staved off some of the harsher consequences of this "voter promiscuity" in 2011. But if all does not go well for the party in its constituency battles in Glasgow and elsewhere - a gap of anything like 100,000 people is seriously going to hurt. And this, before we get into questions of differential turnout.

Part of me wonders if the electoral map in 2016 doesn't encourage an awkward dynamic for Kezia Dugdale, likely to encourage opponents of the SNP to lend her their constituency ballots, while distributing their regional votes elsewhere.  

Imagine you are a Labour voter of what we'll call the Alex Massie tradition. You voted No in 2014. You don't much care for the Nats. You live in a constituency where the Tories or the Lib Dems cannot prosper, where they're not even in the running. What do you do? Option One: damn the arithmetic and vote for what you believe in. If the local Tory or Liberal Democrat gains only a couple of thousand votes? Well, you salute their efforts. Alternatively, you might consider Option Two: use your constituency vote tactically vote for the Labour candidate most likely to frustrate the SNP. In Leith, say, you might support Lesley Hinds. In Glasgow, you might take a punt on Johann Lamont against Humza Yousaf. 

If Option Two seems attractive to you, however, there is a snowball's chance in hell that you're going to stick with the Labour party in the regions. You might also have a soft spot for one of the smaller parties who are only really in contention in the regional list. Perhaps you favour Brexit, and want to see a David Coburn, rolling around Holyrood, blaggarding the European Union. Perhaps Patrick Harvie seems like a sound character, and you want a decent Green delegation in Holyrood, advocating environmental concerns.  In local elections in areas in which they do well, the Greens are pretty transfer happy from a curious range of sources, including Scottish Tories. Perhaps you'd like RISE, modestly, to rise.

Given the parts of the country where Labour remains strongest against the SNP, I'd suggest the calculating anti-Nat and the floating, unpartisan, split-ticket voter is far more likely to cast a - perhaps doomed - constituency ballot for them rather than the vital, life-giving regional support Dugdale needs to survive. In fairness, recent polls suggest Labour's performance across the two ballots is pretty solid, at a (dismal) 18% to 19%.  A squishy list vote may be the least of her concerns. Time will tell.

Ruth Davidson's damaging rookie error

I was out last night, tripping the light fantastic, and so conspired to miss STV's leaders' debate and David Coburn's splendid periscope broadcast in parallel. Having read this morning's notices, and caught up on last night's highlights, you can't help but be struck by the clatter Nicola Sturgeon gave Ruth Davidson. As is often the case, it all began with an innocuous question.

The combative STV format gave political opponents the opportunity to cross examine one other in detail. While the First Minister is put on the spot every week, the Scottish Tory leader generally benefits from asking the question. Her own agenda has been generously sheltered from equivalent scrutiny. I make no complaint about that. Decisions taken by Nicola Sturgeon's government impact on people's lives. Ruth Davidson's policies, with the best will in the world, are tomorrow's chip wrappers, influential only in the sense that they propel her ailing party forward or are smuggled into the governing agenda of other parties.

Harsh, perhaps. But there it is. But an election campaign suspends this obvious point. Instead, we have to pretend Ruth Davidson might, somehow, seize Bute House and find herself in a position to enact her ideas. And trapped in this parallel reality, we saw a different, faltering version of the Scottish Tory leader, contrasting rather sharply with the bluff, affable version which has dominated the headlines hitherto.

So what did Nicola ask? The Nats have already excerpted and punted the key exchange with Davidson.

"You've said you would tax graduates of university education and restore prescription charges. So will you tell us tonight exactly how much your graduate tax would be, and how much people will have to pay for their medicines, if you get your way?"

This is an evil question on a couple of fronts. Firstly, contrast the simplicity of the SNP's position with the complexity of her opponent's. Sturgeon has asked about two separate schemes here, which have their universality in common. Every student, fees covered. Every prescription, paid for. If we dig into these policies, there are more challenging trade offs and implications. But if we remain on a superficial level? It is an easy sell.

Inevitably, Ruth Davidson's position on these questions will be more complicated, and accordingly, harder to explain. She will want to argue that the absence of tuition fees and prescriptions doesn't represent the best and fairest distribution of limited resources, which should be targeted and means tested, towards those with least, while those with greater disposable income make their contribution. She will want to argue this is fairer.

But even in summary, this is a complex message. And even worse, even if she manages to impart this message clearly, she hasn't begun to explain the detail of her own scheme, and the precise rules about the winners and losers it will create. These challenges would apply if Sturgeon had only asked about tuition fees or prescription charges. But by pressing Davidson for a detailed answer on both, with no time to develop her case and explain her thinking, Sturgeon laid down two bear traps for the Tory leader.

And entertainingly, Davidson blundered into both of them.

"Well, first of all it is not a graduate tax. it is a contribution after you've graduated --""How much?"" -- once you're earning money. We expect it to be  - erm - within the region of [swithering gesture] just over - eh - just over £1,500 per year. So that's a lot less than England."

And on prescriptions, again harried for precise numbers, a now rattled and embattled Davidson said:

"We will raise it over the course of the parliament, up to about £8."

"About", "in the region of" and "just over" are not phrases which instil much confidence. But let's not overemphasise that. Davidson was knocked off beam and struggled to think on her feet, as many folk would in parallel circumstances. That's what these debates are for: a chance to shine, and an opportunity to stumble.

But what struck me particularly about this exchange is how politically maladroit Davidson's response to Sturgeon's specific query really was. She offered a sketchy defence of both policies, and left the hard-sell bottom lines ringing in electors' ears. Inevitably, these bottom lines were picked up in the media this morning, without much explanation of why Davidson is pursuing these goals. This is not, I fancy, how she envisaged selling her tricky education and health policies in this election.

Sturgeon's question tempted Davidson into anticipating her manifesto in a way that was both fuzzy on detail, and nevertheless, simple and clear enough to be damaging.  She might have responded to Sturgeon's question evasively, and answered the question in terms of general principles while skirting the detail. In the moment, this would have had some costs. Imagine Davidson had said the following instead:

"We'll be publishing our detailed plans shortly in our manifesto. I won't anticipate that detail here tonight. But what I can tell you, Nicola, is that any Scottish Government I lead will be focused on the interests of the worst off in society. I'll prioritise investing in bright young Scots with potential, not in subsidising rich Scots who can already afford it to send their kids to university. I'll protect the funds available for cancer victims and those suffering from long term conditions -- not subsidising the viagra of merchant bankers from Edinburgh or featherbedded NHS managers from Glasgow. Why won't you?" 

Sturgeon's response to this would have been predictable -- "why won't you be straight with us now? Give me numbers!" Davidson might have suffered a boo or two for such evasions -- but she could have turned the the rhetorical tables on the First Minister and prevented her policies on these two highly visible topics from being presented, from the outset, in a muddled and easily caricatured way. Once her plans had been produced, in a day or two, everyone would have forgotten her early diffidence and evasion in the debate.

But Davidson didn't make that calculation. Instead she blundered in with rough and implausible sounding numbers, and neglected the more important bit -- foregrounding and explaining why she believes these policies are better for Scotland. Feart of a few noises off in the debating hall, Davidson has allowed the political initiative to slip from her, handing her opponents a loudhailer with which to characterise - and crucify - her education and health policies.

Davidson had her moments elsewhere in the debate. Asking Kezia Dugdale if she’d stand “shoulder to shoulder” with her again in the event of a second referendum was extremely funny. But overall? This was a sucker punch from the First Minister, and from the young and untested Tory leader, a damaging rookie error.

Just As Planned

I'm fond of John Dryden's line, that "even victors are by victories undone." It contains a germ of hope for those who find themselves defeated, and it cautions those who appear to have carried away the prizes that a scorpion may lurk somewhere, undetected, in the silverware. Life, and politics, rarely work out just as planned.  

Our recent experience throws up too many examples of the best laid plans going agley fully to relate, but you can detect a few major threads in recent political surprises and disappointments. Measures adopted in the hope of weakening your opponents end up perversely strengthening them in unanticipated ways. You sometimes find short term measures which boost your fortunes lay down the railway tracks which ultimately engulf you in calamity. A swing which brings your opponent onto the punch might give you a welcome opportunity to draw some blood - but it isn't worth it, if the satisfaction of inflicting a little injury leaves you vulnerable to a knock-out blow in response. The art of politics can be deuced tricky. There are some black and white days in politics, some palpable setbacks and some undeniable triumphs. But as Dryden saw, all too often, our victories and defeats are two-edged. Most swords are. 

I approach the Scotland Act 2016, and the Holyrood election debate which it has prompted, with this kind of attitude. There is an intelligent debate to be had about the limits of the current devolution settlement, and the economic wisdom of a new model Scottish Parliament, whose tax analysis and decision-making is focused disproportionately on income. Economics is not my forte, and I'm not your man for that discussion. But let's look at the politics of this. 

Although Holyrood has, for some time, enjoyed a little theoretical wiggle room on taxation, since the SNP's abortive "penny for Scotland" policy in the early days of the parliament, Holyrood's tax raising powers have been posted missing in our election campaigns. Decisions on spending have predominated. Already, as the new Scotland Act powers march slowly towards us, serious questions of income taxation and welfare are colouring and directing the 2016 race. Bracket the economic question of the wisdom or unwisdom of devolving income tax in this way, what are the political consequences of this shift?

One analysis would see this as a cunning Unionist trap, designed to expose the SNP government to the kind of scrutiny it has allegedly long avoided. The argument goes something like this. Look at those cunning Nationalists, claiming credit for their spending decisions, but avoiding responsibility for hiking income taxes to pay for them. They claim credit when devolved Scottish services prosper, and blame Westminster when cuts are imposed.

Now, the new powers ensure Scottish ministers will take their share of potentially unpopular decision-making, which creates obvious winners and losers. Their hands are - finally - being dipped in the blood. Although income tax makes up a smaller percentage of the overall tax take than most folk probably assume, save for your council tax bill, your PAYE deductions are the most visible form of taxation going. 

If Nicola Sturgeon hikes your rate, you'll know about it, and hold her government responsible for its choices. See how long your popularity survives in the rougher winds which will blow then. Devolution might also have opened a window on the right wing for Ruth Davidson to champion lower rates. In the event, she seems to have retreated entirely to an "I agree with George" position on the rights of disabled people and the rates and bands of Scottish income taxation.

And - who knows? - this cynical argument may have something to it. Income tax devolution has already altered the political debate, and exposed the First Minister's government to some awkward choices. On one interpretation, the teeth of the trap are closing.

But for myself? I remember my Dryden, think like a calculating gradualist, and take a slightly different view. Might income tax devolution create headaches for devolved governments? No question. Might it expose the SNP to new and uncomfortable situations, inviting missteps, and making some parts of the population unhappy? For sure. But the creation of Revenue Scotland and a distinct agency to administer devolved benefits for the disabled are classically gradualist nationalist innovations. They help to bridge the chasm between the status quo and a future independence. They shorten the "leap in the dark" it might be seen as representing.

Many of the more critical, post indyref postmortems have focussed on questions of policy. How does the slump in global oil price alter the economic strategy and thinking? Does the currency policy need reappraising, in the light of hard experience and defeat? What about Europe? This is all well and good, and important, but I was to make a dumber, perhaps more obvious, point. For independence supporters, contemplating the situation in which we find ourselves, wanting usefully to bide our time, bridging that chasm isn't just a question of institutions and policy -- it is also a question of political culture and political capital. 

Yes, income and most welfare devolution will expose Nicola Sturgeon's government to sometimes harsh and unforgiving headwinds. But much more importantly, it will gradually acclimatise our political culture to talking about tax and spend decisions much more seriously, on a peculiarly Scottish economic scale. Comparisons with England and Wales are likely to continue. But given sufficient time to percolate and mature -- this has the potentially radically to revise the status quo, building greater fiscal capacity in our politicians, and among the wider public of electors. This may also build skepticism towards the Scottish Government from some quarters, but collectively, it has the capacity to build confidence too. And as a calculating, gradualist Nationalist, this seems to me a fine and useful thing.

One aspect of the devolution settlement which long concerned me was the limits it imposed on our politicians' policy visions and their industry. MSPs and ministers have an incentive to focus on questions within their competence, and to give only scanty and superficial thought to issues falling outside them.  The SNP were, for the greater part of the last two decades, uniquely exposed to this tendency, as first-past-the-post Westminster elections ensured that only a very limited cohort of Nationalist politicians were in place in the palace, scrutinising and thinking about reserved matters day to day. 

2015 represented a radical break with this modest representation. You can't expect six souls with limited support and funds at their command to engage in a comprehensive and thoroughgoing operation on critical reserved questions of taxation and welfare, foreign policy and defence. This observation is intended as no criticism of the folk composing the SNP's Westminster delegation in earlier years. There are only so many hours in a day, and only so many briefings a small cadre of advisers can assemble. 

Being the minor opposition, grounds can always be found to oppose the government of the day. But this kind of deconstructive, oppositional mode of thinking about reserved matters is not conducive to state building and advancing a considered and positive programme of your own. If the extent of your public scrutiny of government policy is a single question at PMQs, you're not going to try to present your own comprehensive plan. You'll look for the more focused, stinging, laugh line. Meanwhile, in Holyrood, as an MSP, you have no real incentive either to pick up the slack, and ponder the detail of social security or tax policy. It is a reserved matter, and your party will never be in power in Whitehall. Why bother? 

But this kind of dynamic should strike serious minded independence supporters as potentially pernicious. If the principal party of independence neglects to build its thinking beyond opposition to particular measures, and the formulation of superficial but superficially winning soundbites about Westminster perfidy, you're goosed. From this kind of material, winning campaigns for Scottish independence are not made.  

But I'd argue these two recent developments offer a route out of these understandable historical cul de sacs and leave the SNP simultaneously more politically exposed, and ultimately strengthened. In contrast with the handful of representatives whose minds are set to the analysis of reserved matters, the SNP now benefits from a massive Westminster delegation whose resources it must deploy with cold-eyed intelligence. Some of the new parliamentarians are plodders. Others stars. But aided by its short money war-chest, the party's serried ranks of MPs, and the little elves and sprites which surround them, are gradually intensifying their understanding of reserved matters, and the depth and complexity of many of the issues involved. This is unprecedented.

But I wonder if the Scotland Act "trap" might not make its own significant contribution to sharpening Nationalist thinking, focussing minds, and forcing Scottish voters to think about tax and spend - and greater independence - in a more comprehensive and programmatic way.  As you cackle as Nicola Sturgeon and her colleagues are put on the spot - think on that. And remember Dryden. And wonder if it is all, really, going just as planned.

For the SNP, taxing problems lie ahead...

In university, I had the misfortune to study the law of tax. In fairness to my teachers, they were learned, talented and clear. I didn't do badly. But the arcane, shifting, three dimensional geometry of tax law hurt my head. I had no real talent for it. At the time, jobless, incomeless, it all seemed a little arcane, gesturing towards a fantasy world of money which - as an undergraduate - seemed fantastical and remote. 

But now that I find myself holding down a job - and, ye gad - putting in tax returns - these old lessons which I neglected seem more interesting and urgent. In the House of Commons today, George Osborne presented his budget to MPs. From the headlines, it has all the hallmarks of another Tory budget chock full of unnecessary cuts to tax for folk who're already doing perfectly well, while screwing over folk with nothing. In Holyrood, in parallel, MSPs were debating the Scotland Bill, which will invest Scottish ministers with the responsibility, all too soon, with taking key decisions on taxation. Under the 2012 Calman powers, Holyrood is only entitled to set a single "Scottish rate" of income tax, which will apply across all the UK bands. 

MSPs have no control over tax allowances, or over personal allowances. This, as we've discussed before, is a famously blunt instrument. If you want to hike the tax obligations of the wealthiest in Scotland, John Swinney must also increase the bills of anyone earning more than the personal allowance. Understandably, the SNP have decided not to increase the bills of folk earning significantly less than the median, full-time salary of £27,000 per annum. Scottish Labour continues to promise a £100 workaround for the low paid via local government, but no further detail has been produced about how they would achieve this.

But in the near future, John Swinney or his successor will have the power to create a more nuanced Scottish system of income taxation. But critically, their decisions will continued to be framed in vital ways by decisions, taken by the UK treasury, over which they have no power. Scottish Finance Secretaries, with the support of the parliament, will in future be able to introduce new bands of taxation and thresholds, departing from the current UK dispensation, with its basic rate, higher rate, and additional rates of tax on income over £150,000. The economics of this are beyond my ken. But in terms of the powers themselves, Mr Swinney will have much more flexibility. 

Under the current rules, set by the UK treasury, the 40% rate kicks in £42,385. In the near future, Mr Swinney might pick a different threshold, or a different percentage. He might, for example,  introduce a basic Scottish rate of taxation, a higher Scottish rate, and an additional rate, and new, fourth, Eat the Rich rate. But the starting point for all of Mr Swinney's calculations will remain the personal allowance, which remains the UK chancellor's plaything.  Under the new Scotland Bill, George Osborne retains control over the personal allowance.

And the proverbial "direction of travel" on the personal allowance is clear - onwards and upwards, with more and more folk, and more and more income, being taken out of the income tax system altogether.  When I started studying tax law, the personal allowance was a slender £4,895 per year. Having cannibalised Liberal Democrat tax policy, the Chancellor today projected a personal allowance of £11,500 for 2017/18.

Why does this matter? Because continuing UK government control over when income taxation begins to bite means that even if John Swinney wanted to maintain the same level of tax liability in Scotland, he'd have to shift the thresholds or increase the rate of tax owed. The Smith Commission compromise - effectively - means that in order to maintain the status quo of tax in the teeth of a tax cutting UK government, Scottish ministers would be obliged - visibly obliged - to put taxes up in Scottish budgets. No harm in that, you might well think. You can't triangulate your way to social democracy. But I'm not sure this is a point everyone following Scottish politics has fully understood.

Confused? Let's try a very simple example. Imagine you are a Scottish taxpayer. Imagine also that the new Scotland Bill is now in force, and your Scottish Cabinet Secretary for Finance can decide what rates you pay, and then they bite. Say also that you earn £27,000 a year. In tax year A, you enjoy a personal allowance of £10,600, set by the Treasury. Your Scottish rate of income tax, set in Edinburgh, is 20% owed over this threshold. Your taxable income is £16,400, and you'll be handing over £3,280 to Revenue Scotland.  

But imagine that in the next year - tax year B - George Osborne decides to boost your personal allowance to £12,000. Even if John Swinney preserves the Scottish rate of income tax at the same 20% rate, your tax liability will fall significantly. Now, your taxable income will be £15,000, with reduced revenue for the Scottish exchequer of £3,000 (-£280). Small beer, you might think, but add all of these basic rate taxpayers up -- and Mr Swinney might end up with a substantial hole in his budget, as a result of the Chancellor's tax-cutting agenda.  

The key point? If you have a UK governing using the personal allowance to cut tax, then deciding to keep the Scottish and UK taxation rates at the same level is effectively a decision to cut taxes. You might pray nobody notices, and quietly give effect to it. But to paraphrase Orwell, it would be objectively pro austerity. There are good reasons not to invoke the Calman tax powers this year. But those reasons begin to evaporate very soon. This doesn't mean the Scotland Bill powers are a trap, but it does mean that Nicola Sturgeon will almost certainly find herself obliged to defend higher Scottish rates of taxation just to maintain the current tax take.

This remains one of the essential political instabilities of the United Kingdom. At least from a rhetorical point of view -- the UK and Scottish Governments have significantly different ideas about how large the state should be, and how much public money should be spent on collective projects and redistribution and responsibilities. The new Scotland Bill doesn't resolve these incoherences. Barnett leaves the two governments' spending decisions yoked together, for good or ill.

But given the ongoing direction of UK government policy expressed in today's budget, the SNP government must brace itself. With the passage of the Scotland Bill, a whole series of awkward questions arise for any Scottish Government, determined to preserve current levels of taxation, and public spending. 

And there's no triangulating your way out of that one. Very soon, the SNP will have to decide whether they are a proper social democratic party, or a nest of fearties.

Bin lorry crash: Matheson's populist move

This morning, Cabinet Secretary for Justice, Michael Matheson, announced that the Scottish Government has decided to extend legal aid to the families seeking criminal letters to prosecute Harry Clarke privately. The precise charges they want to press against him remain undisclosed, but may include causing death by dangerous driving, and fraud. The Crown Office announced it could not support the case against him in January. The final decision on whether or not to allow the case to proceed will now be taken by the High Court of Justiciary, after hearing legal argument. 

What judges will do remains unclear. In law, the families must demonstrate not only that they have a criminal case against Harry Clarke. They must persuade Lord Carloway's court that there were "very special circumstances which would justify taking the now exceptional step of issuing criminal letters at the request of a private individual". I've blogged on these matters extensively before. Here's what Mr Matheson had to say today, in justifying his decision to spend public money on this private action:

“Private prosecutions are, and should remain, exceptionally rare in Scotland. However, in light of the unique and special circumstances of this case, which raises fundamental questions that have not previously been tested in case law, Scottish Ministers believe it is in the public interest that all parties are adequately represented.

“As such, Ministers have agreed to make legal aid available for the families of the Bin Lorry tragedy.

“In line with human rights requirements that anybody facing potential criminal prosecution must be legally represented, legal aid will also be made available to the driver of the bin lorry, Mr Clarke, and to Mr Payne in relation to another potential private prosecution in separate case.  

The issue of whether there are exceptional circumstances to justify a private prosecution is a matter for the High Court alone and do not form part of this legal aid decision. 

Responsibility for deciding whether or not to prosecute an alleged criminal case in Scotland rests clearly with the Crown Office which has a strong record in prosecuting crime. 

The determination is not being made on the basis that Ministers agree that there was any error in law in the decision by the Crown. The Lord Advocate has set out publicly the basis for the decision not to progress a prosecution following the Bin Lorry tragedy.”

A few immediate reactions to the decision and the justification given by Mr Matheson for it. Firstly, this is a decision many folk will welcome. Public understanding of what Harry Clarke did and did not do, and did and did not know about his health when he passed out at the wheel in December 2014, remain lamentably poor. Open a newspaper. Talk to your cab driver. Misconceptions are everywhere. But misconceptions can be powerful social and political forces. 

Few people, I think, are liable to be troubled by the idea of bereaved people getting their opportunity to state their legal case in a clear and well-founded way. Even if you think their action is fundamentally misguided -- that the state is putting these families in a position to state it and state it clearly is no bad thing. There is, clearly, a public interest in this case. By giving the McQuaid and Sweeney families the chance to pursue this action without incurring ruinous costs is likely to contribute something to public confidence in the judicial system - win or lose. 

But beyond that, I think Mr Matheson's reasoning for granting the money seems pretty shaky. The first limb of his argument is that this case "raises fundamental questions that have not previously been tested in case law", and therefore ought to be supported. What these questions might be are far from clear.  Having followed this case closely, and scoured through the jurisprudence of Scottish courts on criminal letters, I've no idea what unlitigated fundamental questions Mr Matheson is alluding to.

He also says the Crown decision not to prosecute Mr Clarke gives rise to a case of "unique and special circumstances". But what precisely are these circumstances? Mr Matheson doesn't elaborate, but he must know there is nothing unique, or special, in the Crown deciding criminal cases will not be taken, that insufficient evidence is available, that the public interest wouldn't be served by a prosecution. Cases of this kind accumulate day after day after day - every day - in the offices of procurators fiscal from east cost to west. Disappointments of this kind for complainers are not the exception: they're routine. 

Are all such actions now to be supported from government funds, when complainers disagree with prosecutors? And what about questions of equity? Are all private prosecution bids to secure financial Scottish Government backing? If not, on what criteria? Is it simply decisions which are liable to get Scottish Ministers thwapped on the front pages of the Daily Record which are to attract the support of public money, while would-be private prosecutors in less notorious cases are to be left to fend for themselves? 

The Cabinet Secretary says private prosecutions "should remain exceptionally rare." Deciding to fund this action seems likely to generate precisely the opposite outcome. The fact that folk can be privately prosecuted in Scotland will have come as a revelation to much of the public. Public awareness of the criminal letters route is higher than ever. If you feel the Crown hasn't secured justice for you, and you have a good chance of getting ministers to foot your legal bill, why not pull together criminal letters against someone you feel escaped prosecution unfairly? Why wouldn't you do it? Despite his rhetorical wriggling about in his statement, has Michael Matheson precisely established a precedent with this decision?

Beyond the Scottish Government's stated reasons, the cynical among you will inevitably see the political side of today's announcement. With an election approaching, extending legal aid to these families is an easy choice. In terms of the public purse, the cost of the action is small beer. Tomorrow will no doubt bring positive rumblings in the media, about justice being well served by Nicola Sturgeon's government. 

If, by contrast, Michael Matheson had vetoed the use of public money to support those who lost loved ones in December 2014, you could expect a counterblast of editorial and comment, depicting ministers as closing ranks behind their handpicked prosecutor, slamming the door shut in the faces of victims, of cover ups, skewed priorities and heartlessness. You don't have to be a canny politician to spot - and take - the path of least resistance. And if, in future, a big pile of applicants stick in funding bids for their criminal letters? You can always quietly reject them down the line. The decisions are very unlikely to be publicly reported.

Although today's statement is at pains not to undermine the Lord Advocate's decision not to prosecute Clarke - you also wonder if ministers are hedging their bets here, squaring the families and the media, and subtly distancing themselves from contamination by unpopular Crown Office decision-making. Logically, I suppose, this is the flip side of prosecutorial independence. It's Frank Mulholland's call. If the families lose? Well, the Scottish Minister did their bid. But if, for some reason, the High Court of Justiciary does grant criminal letters against Harry Clarke - today's decision leaves the finger of blame pointing solely at the Lord Advocate, the animus engulfing prosecutors, and not politicians. 

Whether for high minded reasons of access to justice, or the low animal cunning of anticipating public opinion and avoiding the flak -- this is a neat, perhaps cynical, but populist move.

#SP16: Ruth Davidson's blue collar, still washed whiter

On the 23rd of June, the British people will cast their verdict on the UK's membership of the European Union. On Thursday the 5th of May, folk living in Scotland will determine the shape of Holyrood for the next half decade. With two months to go until the Scottish Parliament ballot boxes are opened, life is only now, only just, beginning to stir in the campaign. But for most of March and April, it seems likely that the dominance of UK media in the Scottish scene will ensure that there is an inevitable spill over of the EU referendum race into devolved elections. 

This conjunction of political events prompted a grouchy letter from the heads of the devolved administrations some weeks back, concerned that the issues in their respective elections would be obscured by the EU poll. Nicola Sturgeon urged David Cameron to pick some other day, some other time, to put his compact to the test of popular opinion. SNP MPs groused about it extensively, in the first EU debate on the Prime Minister's draft deal with the governments of other EU states. 

For my own part, I struggle to get worked up about this. From a - horrifically cynical - tactical perspective, political stasis remains Nicola Sturgeon's friend. The distractions of a parallel EU punch-up will, I should have thought, tend to help the Scottish Government perpetuate the political stasis which has gripped Scotland since 2014's indyref, and help the SNP to retain office. Is it pretty? No. Uplifting? Not a jot of it. 

Kezia Dugdale is still gasping for political oxygen, gasping for a hearing, gasping for recognition. The antipathies towards Labour which recent events have engendered show no signs of abating. In parallel, the Liberal Democrats continue to hobble along, the walking wounded, bumping along the bottom of bare political viability. 

The Greens have benefited from a merited boost from their new membership and cash and indyref advocacy -- but don't look likely to make swingeing inroads into the Nationalist vote. They'll peel off a few folk who'd like the government to be bolder in key areas, but they don't seem primed to carry off a substantial share in May. And despite winning the backing of a few SNP members like Jim Sillars -- RISE's ascent seems likely to be electorally minimal, and to win them no seats. As most of its harder-headed supporters recognise, on the current evidence, its fate in 2016 seems likely to mirror my last abortive attempt at a soufflé. 

But one name we didn't find on Sturgeon's letter to the Prime Minister was self-proclaimed "blue collar Tory" and all round "good egg", Ruth Davidson. Not a peep of disgruntlement have we heard in public from the Scottish Tory leader. But I wonder if she has more cause than the First Minister to feel hacked off by the Prime Minister's decision to chuck her fragile Holyrood campaign under a bus. 

Huge expectations have gathered behind Davidson. She represents more than a transitory Scottish Tory leader. She is the last best hope of the whole company. In defeating Darth Murdo Fraser, who insisted his comrades had to pack up and start again, Davidson contended that the Tories north of the border were not doomed to a slow death. Above and beyond everything else: the 2016 election campaign are the days that will try Ruth Davidson's soul. They represent the empirical testing of Darth Murdo's thesis. And if she can't win? If this leader can't make any significant progress? Then what? 

Despite these undernotes of anxiety, Ruth Davidson continues to benefit from a marvellous press. Her chances in 2016 have been generously - or maliciously - talked up for some months now. For gentlemen of a certain age in the media, she remains irresistible. She has obvious talents. Drawing on her experiences as a broadcaster, she does a good turn on the radio and telly. She has an eye for an entertaining photo shoot. She doesn't seem to take herself deathly seriously. She tweets amiably. Her open and relaxed and public sexuality makes the whole thing feel contemporary in a way that a sixty year old Rotarian in a double breasted royal blue blazer inevitably could not. These are good things.

But strip away the veneer and the twinkle of the individual personality who can survive Have I Got News for You with credit -- and how far does it really go? We are told she is a new kind of Tory, a revelation, who has swept away the dead wood from her Holyrood group, and who is primed to lead a new generation of Scottish Conservatives into their best ever performance. Scratch the story, and you still find relatively little evidence (a) that the Scottish Tories on offer in May are radically new, or indeed, (b) that they are likely to find favour with a radically enhanced chunk of the electorate. 

If pressed, Conservatives will often point to Professor Adam Tomkins as evidence of radical renewal. And whatever you make of him, Adam is a smart guy who would bring something idiosyncratic to Holyrood. But one professor does not structural change make. If depth and breadth is the thing: who else is new? There are stragglers. Individuals. But overall? Scrutinising the party's regional list, with its dismal lack of women of any stripe, and over-representation of the usual host of lawyers, bankers, business persons and land agents -- well, colour me skeptical. Blues, they may be, blue collar? Gie's peace. 

And as far as I can see, Scottish Tories have made next to no effort in policy terms to lend much substance to the idea that they've reorientated their priorities from the very top of the economic tree to the bottom of middle. There are the "aspirational" grace notes around education, but beyond that? Understandably, and to some extent effectively, when Davidson is pressed on these issues in broadcasting studios, she reaches into her own biography. 

"I'm not one of these snooty bastards", she says. "I'm not privately educated." I don't doubt this is true, and in Davidson's head, the argument well-meant and sincere. But if your platform remains consistent with playing servitor to the richer parts of society? If your policy priorities remain shifting social burdens away from a small slice of wealthy folk? This seems a fairly grisly way to use your working class biography. Scrub Ruth Davidson's blue collar - and the familiar whiter than white collar priorities of Scottish Toryism are quickly revealed. Perhaps her party's 2016 manifesto will dynamite this -- but I rather doubt it.

The reaction to the Scottish Government's recent council tax announcement seemed to me characteristic of the skin deep, merely rhetorical renewal which Davidson has - thus far - represented. Darth Murdo and others took to the airwaves to fill the political space they have traditionally occupied -- the spokespersons of wealth and established privilege.  "Will nobody think of those in houses worth half a million quid?" *sniffle* "What about the 'squeezed middle' of folk earning many multiples of the average Scottish income of £27K a year?" Ruth Davidson's all new Conservatives: still washing those blue collars whiter. 

But beyond this, I wonder if the EU poll date isn't more of a problem for Davidson than folk have recognised. Margaret Mitchell seems likely to be the solitary Scottish Tory to come out for Brexit. Davidson and her more prominent "new faces" are all lining up behind the Prime Minister, to argue that the UK should remain part of the European Union. For different reasons, I agree with them. 

But you can bet your bottom dollar that many of Davidson's natural electors do not, wooed by the Euroskepticism of Boris and of Duncan Smith, and of Nigel Farage. For them, the whole Scottish election may seem to be framed by the wider context of the EU debate, its preoccupations and its priorities. And so imagine you are a EU skeptic Tory sympathiser, considering who to lend your vote to in May 2016, with the referendum pending. Do you plump for the squishy and provisional pro-EU position of your party leader? Or might you be tempted to splash out on a UKIP vote instead? 

In terms of the final outcome of the EU referendum, none of this might matter. But the future of Scottish Conservatism is being judged by slender margins. If Davidson and her colleagues lose even a few percentage points to UKIP, the boasts of unprecedented successes, and Davidson's own status as a fundamental jolt to Tory fortunes in Scotland, risk being dramatically undermined.  Sturgeon may have put her name to the letter, protesting about David Cameron's choice of date for the Euro poll, but I wonder if - privately - it isn't Ruth Davidson who has most cause to curse her party leader.

Triggers

Inevitably, much of the political coverage this morning has descended into a game of personalities. Its detail undigested, interest in the achievements and failures of David Cameron's apparently hard-won European Union deal has already dissipated. The papers and politics shows are full of who is backing who, and the high ambitions and low animal cunning which might explain why.

For my own part, I'm contemplating the approaching referendum on Britain's EU membership with a mounting sense of dread.  More, perhaps, than I anticipated. The promised poll has been rumbling towards us like prostate cancer for months - years - now. But as the grisly encounter approaches, I find myself grow increasingly pessimistic.

The smart money says that the establishment choice carries the day. The smart money sees the country briskly carpet bombed by corporate fear and menacing metaphors - and the British people shrugging their way back into the European Union, lovelessly, but without much animating antipathy either. I'd find this more impressive - and more reassuring - if the self same savvy pundits hadn't been wrong about more or less every significant development in British politics in the last five years.

A Tory majority in 2015 was nigh unthinkable. It happened. Corbyn was an outside candidate, a chortle for which hard-pressed hacks were grateful. He won. Scots would never in a million years vote for independence. An intensely negative campaign squandered a massive lead and gave David Cameron's administration its first cardiovascular incident. In the wake of the independence referendum, the SNP would descend into bloody civil war. Instead, Scottish Labour experienced an almost entirely unanticipated collapse.

I realise nobody is a prophet in their own country, this isn't exactly a list of events to instil confidence in our powers of divination. This isn't a motes and beams thing. I'm no good at making predictions either. You can try to be self aware, but invisible prejudices and preoccupations always cloud your vision. You can't always discern what your blind spots are, and where they lie. But I can't be alone in finding bluff confidence that the "remain" vote will carry the day remarkably complacent.

The campaign to frame the EU -- and hold to it fairly and unfairly responsible for Britain's perceived ills -- did not begin yesterday, with the unleashing of Cameron's divided cabinet. It has been playing out for weeks and months and years, in the pages of the press, and amplified by the powers of the broadcast media.

And in trying to anatomise my anxiety, much of it comes, I'm afraid, from intense pessimism about the politics of England. This is probably characteristic of those with the liberal Scottish nationalist outlook, and doubtless represents a crude and unnuanced depiction of the dominant political attitudes of both England and Scotland. It is probably exaggerated. But it abides.

Always ready with a striking phrase, in the 2014 campaign, Jim Sillars memorably remarked that "the referendum is about power. On 18 September, 2014, between the hours of 7 am and 10 pm, absolute sovereign power will lie in the hands of the Scottish people." I suppose one can say the same thing of this summer's referendum, when Europe is put to the question. After a burst of sound and fury, the people of the United Kingdom shall decide.  

But in grisly contrast with Sillars' formulation, I'm currently troubled by an all too familiar, all too overwhelming feeling of powerlessness. England's gonna do what England's gonna do. Them's the rules. That's democracy. This is precisely what the majority of our fellow countrymen and women chose, in the exercise of that dawn till dusk sovereign will. Months have sped by, but all of this was perfectly foreseeable over a year and a half ago.

But now the idea of Brexit is a real, rather than a remote possibility? Now it is an imminent moment of choice, rather than a hypothetical question? I'm surprised by the intensity of my first emotional reaction.  I can understand the intellectual critiques of the European Union. I can see the case against it from a democratic point of view. I can see, from the perspectives of a left-wing politics, how a Europe of competition and corporations and property, represents a sometimes challenging atmosphere in which to thrive. I don't have an awful lot of time for Michael Gove's quixotic, romantic critique -- but I have a lingering soft spot for the earnestness of the Lord Chancellor, despite himself.

But although I am sure Britain can survive and thrive beyond the European Union, I find the idea of a Scotland and Britain outside of the EU intensely depressing. That Scotland remains in the Union is to me personally a matter of regret. This much, you knew. But to remain in a Union outside of Europe, for the reasons advanced by the odious Chris Grayling, and the gormless Priti Patel? To leave, rudderless for the golden island which float in Nigel Farage's imagination, or in George Galloway's? To leave because of victim fantasies, the modest and overwhelmingly constructive free movement of people across this continent? To leave because of this? 

It is all just too ghastly, too retrograde, too shabby.If this is what Great Britain is to become, if this is what the Great British public vote for, I want out. More than ever. With more passionate intensity than ever I felt in 2014. Without regrets.

But supporters of Scottish independence shouldn't kid themselves on, and chortle behind their hands at the prospect of a "trigger" being pulled on a second referendum. Let's be honest: the SNP's European policy during the 2014 campaign was an absolute boorach, a mess. We faced difficulties with some of the economic messaging, but in terms of badly researched positions badly presented, the European stuff was up there. Now, let's not be hypercritical. Mistakes are innocent made. Details are missed. In the heat of the moment, and under pressure, loose lips say silly things. But on Europe, we don't yet see much evidence of a maturing Scottish nationalist analysis.

It was with some anxiety that I watched the Commons debate after the Prime Minister's statement on the draft European deal a few weeks by -- and saw that the Nationalist delegation had nothing to say, nothing to say, about the substance of European policy. We heard bleating about the conjunction of the EU referendum and the Holyrood poll, but next to nothing about substantive questions of European policy. This isn't good enough.

If Britain does choose to depart from the European Union, the version of Scottish nationalism which has sustained the SNP these last decades takes a fundamental knock. Make no bones about it. It will necessarily prompt a reappraisal of a vision of Scotland in Europe which has been fundamental to the party's mature thinking. This vision represents a riposte to allegation that independence is about narrow nationalism, about separatism, and the reclamation of a fantasy-land 19th century political sovereignty.

Where does the social and economic interests of an independent Scotland lie, if its key trading partner sits outside the confines of the European Union? These questions are acute also for the Republic of Ireland, which must be contemplating our big democratic summer with increasing anxiety. Is EU membership a question of honour, of identity, for Scots -- or is it also just a heartless commercial calculation? And if economic interests and questions of identity and international solidarity pull in different directions -- which of these should the SNP privilege? Which is more important?

The result of this referendum won't just shake the Conservative Party: it has the real potential to sew disorder - and open up fundamental decisions - for the SNP and the wider independence movement. It may not come to that. But for the next few months, I suspect I shall be mumbling Yeats, in fear and trembling, in exaggerated pessimism, over and over.

"Turning and turning in the widening gyre, the falcon cannot hear the falconer; things fall apart; the centre cannot hold."