Things haven’t been going terribly well for Nicola
Sturgeon in recent weeks. Her one-time Covid elimination strategy looks still
more foolish now when even New Zealand has had to abandon it. If the saintly
Jacinda Arden cannot manage to keep Covid from spreading in a country two and half
thousand miles from anywhere else how was Sturgeon supposed to emulate her
heroine with Scotland joined to England and reliant on lorries and trains
connecting us to the continent. If only we had been independent, we could have
been like New Zealand looks even more foolish when both New Zealand and
Australia have merely delayed the pandemic, have fewer people vaccinated than
the UK and are pretty much where we were in March 2020 at the beginning rather
than reaching the end.
There was a little flurry of excitement at the SNP
conference as Sturgeon brought on stage a figure who would take the campaign
for independence to the next level. Unfortunately, no matter how much she tried
to flog it, no one but the most committed were buying and it turned out that
the rather comatose new Scottish nationalist hero was Robert the Bruce’s horse,
which was not sleeping, but rather dead and it would not rise again no matter
how many times Sturgeon hit it.
The same SNP strategy of giving it a good bash as
proved less than successful in keeping the engines of Cal Mac ferries going and
unfortunately destroyed the computers that were needed for the vaccine passport
ap to work. Sturgeon’s determination to do better than England no matter how inconvenient
for Scots suffers also from the problem that Covid is spreading freely in
Scotland, in schools and in homes and indeed where two and three are gathered
together not merely in nightclubs and football stadiums. If vaccine uptake in
Scotland had been low, then the SNP could have argued that the vaccine passport
was encouraging those who had yet to come forward, but the present rate of vaccination
is 93% for the first dose and 84% for the second. Pretty much anyone who wants a vaccine has had
it. Those who don’t want it will do without seeing Cowdenbeath playing Stirling
Albion.
Despite Sturgeon being on the TV with her Covid briefings
only two things actually made a difference and she was in control of neither. We
were able to stay at home because the Chancellor funded furlough and kept
businesses going. The rates of death and serious illness came down because the
British Government invested in vaccine research and bought enough to vaccine
the whole population. Sturgeon wasn’t able to stop Covid spreading. Her decision
to send old people back from hospital killed more than any other decision she
made. Having a different policy to England on this or that saved no lives, but
might instead have cost them owing to confusion.
The bounce in support for independence that she hoped
would occur by monopolising the airwaves hasn’t happened. Meanwhile thoughtful
Scots have noted how dependent we were during the pandemic on Treasury money and
Britain’s ability to borrow at low rates and how it’s rather useful to have the
British Army organise things and drive ambulances. It would be rather a pity to
destroy something that has from time to time proved so necessary.
But a decision by the Supreme Court may prove to be
the worst news of all for Sturgeon. Ever since the SNP came to power, it has
been determined to turn the Scottish Parliament into something that it isn’t. Firstly,
it renamed itself the Scottish Government, then it decided to have departments
and ministers for areas it did not control, in the end we had Sturgeon treating
the Prime Minister as a visiting dignitary as she went on her travels trying to
develop a separate foreign policy. The SNP kept pushing the boundaries of
devolution with Sturgeon acting as if we had voted for independence in 2014,
when in fact she lost rather badly.
The latest ruse on the part of the SNP was to attempt
to pass two laws that were outside the remit of the Scottish Parliament. These
were the United Nations Convention on the Rights of the Child (Incorporation)
(Scotland) Bill and the European Charter of Local Self-Government
(Incorporation) (Scotland) Bill. The Supreme Court has agreed that the Scottish
Parliament cannot legislate for areas outside its competence because this is
contrary to what the electorate voted for and contrary to the 1998 act that set
up the Scottish Parliament in the first place.
This might seem an obscure point of law, but it has an
important consequence. If the Scottish Parliament cannot pass a law which is outside
its remit, it cannot logically have a mandate to do so. But constitutional
matters are reserved, which means a bill for an independence referendum cannot
be legally passed by the Scottish Parliament (without permission). But
logically this means that the Scottish Parliament cannot have a mandate to pass
such a bill. It cannot say the majority of MSPs support this bill therefore we
should pass it. The consequence of this is that even if the SNP had all of the MSPs
it still could not pass a law regarding constitutional matters (e.g., independence)
because to do so would be outside its scope and illegal.
But this has a rather devastating consequence for the
SNP. If constitutional matters are reserved, then they have nothing whatsoever
to do with the Scottish Parliament. The SNP cannot claim a mandate for an
independence referendum based on an election to Holyrood, because Holyrood does
not deal with this issue. For the same reason it cannot pass a law to join the
United Nations or a law to annex Berwick. It could claim a mandate for independence in a
General Election, but only if it won the majority of seats in Westminster. The
arithmetical difficulty for the SNP is that even if it won all of the seats in
Scotland it would not have enough to form a government. Winning even 100% of the vote in Scotland
would not give the SNP a mandate for an independence referendum, any more than
if the Conservatives won 59 seats in the whole of the UK would give them a
mandate.
The only way in which 59 seats gives you a mandate is
to treat Scotland as already separate, but this is to assume what you are trying
to prove, that Scotland ought to be separate. If on the other hand Scotland is
a part of the UK (we voted for this in 2014), then winning 59 seats no more gives
you a mandate than winning 59 seats anywhere else in the UK.
The only route to a legal independence referendum is
for the SNP to persuade enough MPs in Westminster to vote for an independence
referendum. It could do this by forming a coalition with Labour. So long as the
SNP wins most of the seats in Scotland, Labour’s only route to power is to have
some sort of deal with the SNP. It would be almost impossible given the current
parliamentary arithmetic for Labour to form a government by winning enough
seats only in England and Wales.
The result of the Supreme Court decision is that a
Conservative Government can logically, morally and democratically block the SNP
for ever, because the SNP will never have a democratic mandate for independence
unless it starts standing in the whole of the UK and wins a majority of the seats.
The only danger is if Labour thinking of short-term power decides to risk the future
of the UK on a deal with Sturgeon. Labour would of course, because it would
have no choice.
