UK government boasts that "The Vow" was a gigantic con-trick

As we all remember, a key part of the panic-stricken last-minute "Vow" that helped to secure a narrow No victory in the independence referendum was the promise that the devolved Scottish Parliament would be made "permanent".  Implicit in that pledge was that the Sewel Convention (which, among other things, prevents the powers of the parliament from being altered without the consent of MSPs) would be put on a statutory footing.  Without that safeguard, "permanence" would plainly be meaningless - the parliament could be left as an empty shell, unilaterally stripped by Westminster of all or most of its powers.

It was widely noted that, technically, it was next to impossible to guarantee either the permanence of the parliament or the inviolability of the Sewel Convention, because the sovereignty of the Westminster parliament means that any constitutional law can simply be repealed later on.  Nevertheless, the UK government insisted that the Scotland Act 2016 provided as much assurance as was humanly possible to give within the UK constitutional framework.

A number of us were a tad sceptical about that, and couldn't help wondering whether the use of weird and seemingly redundant wording within the legislation such as "it is recognised that" and "the UK Parliament will not normally legislate without consent" were deliberately intended to be self-sabotaging, and to render the whole thing unenforceable.  Not at all, we were told. That was just paranoia.  Yet more SNP grudge and grievance.

Hmmm.  As it turns out, all it's taken is eight months since the Scotland Act passed into law, and the UK government are already openly admitting that we were correct in each and every respect about the cynical game they were playing.  So desperate are they now to head off the risk of the Supreme Court granting the Scottish Parliament the kind of say over the Brexit negotiations that might actually befit "the most powerful devolved parliament in the world" (ahem), they've dropped all the former pretence, and have submitted a legal argument that explicitly argues that the wording of the relevant section of the Scotland Act deprives it of all credibility.

"The legal irrelevance of the Sewel convention is expressly accepted"

"the convention does not purport to prescribe an absolute rule. Its content is only that “Westminster would not normally legislate” (emphasis added). Whether circumstances are ‘normal’ is a quintessential matter of political judgment for the Westminster Parliament and not the courts. There are no judicial standards by which to measure such a question..."

"Nothing in that analysis is affected by the amendment of s. 28 of the Scotland Act 1998 (by s. 2 of the Scotland Act 2016) to include: “(8) But 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”. All s. 28(8) does is to recognise the terms of the political convention in legislation. That does not render the application of it in any particular instance a justiciable matter for the courts. It is trite that legislation may include provisions which do not give rise to justiciable legal issues. The content of s. 28(8) is the same as that of the convention, save that its purely political nature is further emphasised by (a) the opening wording that it is “recognised”, and (b) its placement immediately after s. 28(7) which affirms the unconstrained legislative competence of the Westminster Parliament."

In plain language, this is a boast that the supposed placing of the Sewel Convention on a statutory footing was a con-trick. Further, it's an invitation to the Supreme Court to confirm that the deception was pulled off successfully. That whole section of the Scotland Act, we're being told, was the equivalent of a pretty illustration in a textbook - ie. for decorative effect only. At best, it was like forgoing a marriage certificate in favour of a small tattoo saying "Jenny and Kevin 4eva".

The eccentric notion that the government which crafted the law, and not the courts, should get to decide how to interpret the meaning of the word "normally" reminds me a touch of the Führerprinzip in Nazi Germany (ie. the government's word is above the written law), or the right of the communist Chinese National People's Congress to interpret the Hong Kong Basic Law. The rule of law in democratic countries does generally rest on a basic separation of powers - the political legislature passes the law, and then the non-political courts interpret and enforce it. That is the only way of ensuring non-arbitrary application of the law.  Apparently, Westminster's exercise of overlordship in Scotland is exempt from that general principle.

The UK government's lawyers could have saved themselves a lot of time by submitting a legal argument that simply read : "OUR CONTEMPT FOR THE PEOPLE OF SCOTLAND IS ABSOLUTE. WE LIED, WE CHEATED, AND WE NO LONGER CARE WHO KNOWS ABOUT IT. SUCK IT UP, JOCKS."

You've dunnit again, Gov.

Just a quick note to let you know that I have a new article at the TalkRadio website about yesterday's YouGov poll on independence.  It also rehearses some of the many shortcomings of YouGov's polling during the indyref.  You can read the article HERE.

"Engrossing" YouGov poll finds that Scotland is behind Sturgeon's drive to remain in the EU after the UK leaves - and understands this will require independence

A new full-scale Scottish YouGov poll is out today, and the most significant finding is that there is narrow majority support (albeit within the margin of error) for Scotland seeking to remain in the European Union after the UK leaves...

Would you support or oppose Scotland seeking to negotiate with the European Union to remain part of the EU after the rest of Britain leaves?

Support 42%
Oppose 41%

The subsequent question reveals that, by a massive 62%-22% margin, people understand that independence will be required to remain in the EU after Brexit.

There's particularly vexing news for Kezia Dugdale here.  As you'd expect, SNP voters are firmly in favour of retaining Scotland's EU membership, and Tory voters overwhelmingly follow the 'Brexit Means Brexit for everyone' doctrine.  But Labour voters are essentially split down the middle on this point.  It appears that Dugdale may have miscalculated in her belief that the rump Labour support (which is all she appears to care about holding onto) shares the hardline unionist DNA of the Tory support.  Incredible though it may seem, therefore, there are clear grounds for optimism that even more Labour voters could be won over to the SNP if Dugdale maintains her inflexible stance on leaving the EU.

The poll was commissioned by a rabidly anti-independence client (The Times), who are naturally keen to draw attention to the portions of the poll they find more palatable.  In particular, they seem to be beside themselves with excitement to discover that, for the first time since 2014, a YouGov poll has found that headline support for independence is fractionally lower than it was in the indyref.  (The operative word here is 'fractionally' - the Yes vote in the referendum was 44.7%, and YouGov currently has it at 44%.)  But the reality is that the general pattern of recent times has been a Yes vote that hovers only a little higher than the 2014 result, with a figure of 47% being particularly typical.  If that's roughly where we are, you'd fully expect the odd individual poll to put Yes slightly below 45%, simply due to sampling variation (ie. margin of error).  It's theoretically possible that this poll is the first to detect a genuine dip in support, but there's absolutely no reason to jump to that conclusion - unless of course you're indulging in wishful thinking.

By the same token, The Times are ascribing significance that simply cannot be statistically justified to minor changes on the supplementary questions.  For example, opposition to a second independence referendum being held before the UK leaves the EU (ie. within a very tight two-year timescale) has increased since the poll in August from 50%-37% to 54%-35%.  But that change can be easily explained by the margin of error - if, say, the true 'oppose' figure has remained steady at around 52%, the margin of error means that the reported figure in individual polls would be expected to be anywhere between 49% and 55%.  So The Times' liberal use of words like 'slump' is, I'm afraid, a tad over-excitable.

One thing to watch out for today : YouGov have, frankly, become notorious over the years for their lack of objectivity on the topic of Scottish independence.  After their last poll in August, they posted a ludicrous article which brazenly misrepresented their own results.  They stated baldly that a majority of Scots were opposed to a second referendum, but, in fact, respondents hadn't even been asked such a broad question - they'd only been asked whether they wanted a referendum before Britain leaves the EU, which could be very soon indeed.  YouGov also stated that, if and when a referendum takes place, a majority would vote No again.  There was absolutely nothing in their results that would even begin to justify such a wild claim.  The headline question on independence had merely asked, in line with normal practice, how people would vote on independence if a referendum was held tomorrow.  Both of those facts also apply to today's poll, so just keep an eye out in case YouGov attempt the same misrepresentation on this occasion.  At time of writing, they haven't so far.

One small piece of credit I can give YouGov, however, is that they've finally put their house in order and started interviewing the correct electorate - ie. over-16s, rather than just over-18s.  So we no longer have to worry about Yes and SNP support being underestimated for that specific reason.  It's very hard to understand why it's taken such a ridiculously long time for basic good practice to be followed - but better late than never.

It shouldn't be overlooked that today's poll makes fairly grim reading for Theresa May personally.  Her net personal rating has collapsed from +13 in August to -5 now.  Margin of error 'noise' certainly can't explain such a big change.  The Prime Minister still has a long way to go before she reaches Thatcher-style depths of unpopularity, but on her current trajectory (and bearing in mind that her honeymoon period has only really just ended), it's perfectly possible she could eventually arrive at that destination.  If she does, the consequences for opponents of independence could be catastrophic.

The final question of the poll is a bit of an oddity.  Unionists have gleefully leaped on it as proof that 'only' 13% of the population have been involved in the SNP's recent consultation process (which would actually be a pretty impressive figure).  But the wording of YouGov's question leaves a lot to be desired.  The survey is cited as the "National Conversation", whereas to the best of my knowledge it's actually been generally referred to as the "National Survey".  Respondents are also asked whether they have been "approached to take part" in the survey, which on the face of it would exclude anyone who took part without being "approached".  Whether the wording of the question is just clumsy, or whether it's deliberately intended to muddy the waters, is hard to say.

A general point that needs to be made about all polling at the moment : regardless of whether it's good or bad, we simply can't be sure it's reliable.  Fergus Ewing was asked about the headline independence results today, and he pointed out that polls in recent elections and referendums had mostly been wrong.  In years gone by, a politician trying to rubbish the polls would have been regarded as a bit desperate, but as things stand it's hard to deny he's got an excellent point.  It's particularly worth taking a look at the huge leads the Remain campaign had in telephone polls for such a long time.  No-one can say with any great confidence what the true support for independence is right now - let alone what it will be in a few months' time, or in a couple of years.  That's a statement of fact.  The era during which it was rational for political leaders to make strategic decisions on the basis of a couple of percentage points here or there in opinion polls is well and truly over.  At best, the polls of today are a ball-park guide - and that park seems to be getting ever bigger.

Amazement and astonishment in Arbroath, Angus as buoyant SNP bag a by-election belter

Not entirely sure why a by-election was held on a Monday - it's deeply unnatural, like an accurate John McTernan prediction, or something like that.  Anyway, here is the result...

Arbroath East and Lunan by-election result, 28th November 2016 :

SNP 35.0% (-8.8)
Conservatives 27.0% (+12.2)
Independent - Speed 17.2% (n/a)
Independent - Smith 11.8% (n/a)
Labour 6.7% (-6.0)
Liberal Democrats 2.3% (-0.6)

At first glance, that looks like a routine SNP hold on a reduced majority - but as is so often the case with STV by-elections, it's not that simple.  The vacancy was caused by the resignation of an independent councillor - so it's technically an SNP gain from independent, even though the independent was 18% behind the SNP in the popular vote in the ward last time around.  According to the 'Mike Smithson Doctrine', which ludicrously takes no account whatever of the previous result in the ward, this is therefore a result of unalloyed wonderfulness for the SNP (which is probably why Smithson hasn't mentioned it).

Back in the real world, there has been a significant swing from SNP to Tory, which very much follows the pattern of realignment we've been seeing recently - with Yes-voting ex-Labour supporters in west-central Scotland moving en masse to the SNP, and to a lesser extent No-voting ex-SNP supporters in the north-east moving to the Tories.  In a proportional representation election, that swap will always work out quite well for the SNP, but it could potentially lose them a few seats in the next first-past-the-post Westminster contest.  In retrospect, it seems a minor miracle that the post-indyref swing to the Tories in their former heartlands was delayed long enough for the SNP to clean up quite so comprehensively in last year's general election.

As the SNP candidate was elected on the sixth count, we're able to see where the various transfers went.  It's refreshing to discover that Scottish Labour's love affair with the Tories isn't shared by a majority of their own voters in Arbroath - 31 Labour transfers went to the SNP, and only 18 to the Tories.

Scot Goes Pop mourns the passing of Fidel Castro

We interrupt your normal programming with a special message for our resident troll, who had this to say earlier -

"Not even a mention of Fidel on this fash right wing Nat si blog."

Consider Fidel mentioned by this commie left-wing anti-YoonYoon-sis blog.

Actually, the serious answer is that the record of Castro and Cuban communism is a mixed one.  There have been appalling human rights violations, and Cuba is now basically the only outright dictatorship in the American hemisphere - but there have also been extraordinary gains in health care and literacy.  Which side of the coin matters more?  They both matter.