Tuesday, 18 March 2014

Overload ...missing what is important ..

There are times when even the most devoted follower of the Scottish independence debate suffers from overload. I thought I had developed an effective bullshit filter which operated effectively to prevent most of the noxious comment from either side of the debate effecting me unduly.

The arrival of the Tory phantasm to Edinburgh and its over weaning media and press coverage tested my filter system to destruction but the fall out from Andrew Marr's train crash interview with Alex Salmond pushed the system past overload and into failure. I found myself, at first, screaming internally at Marr's self satisfied ignorance then the system failure warning went off as the media on both sides started making much of it as talk of who was bullying who diverted the public gaze from what was actually said and headed into the standard 'stairheid rammy' in the usual Guardian / Newsnet blogo-sphere.

Even an excellent round of golf in my club Winter League on Sunday (41 points, net six under, 2nd place, 1.2 handicap cut - thanks for asking) could not un-bung the severe case of cerebellar constipation this all had induced.

It is now just Tuesday and at last I can begin to clear my system of all the crap, hubris and detritus - give myself a brain wash and take stock of the weekend.

The Tory Conference - spoke to itself. In many respects it did not even manage to talk to its own supporters in Scotland. The set pieces were fundamentally about how evil , daft, megalomaniac and generally insane Alex Salmond is for taking on the vested interest of the UK Parliament at Westminster. How dare he suggest Westminster is not up to the job and he could do better. The Scottish Tory Party will show him how wrong he is by doing all the things like end free prescriptions, student fees, council tax freeze which the people of Scotland so hate and feel oppressed by and make Scotland just like the North of England. There's the motivation to vote 'No' - a fine economic success to persuade Scotland of the Tory arguments for the Union. Sadly many folk seem to miss this key message as they banged on about how empty the conference centre was or how the Tories tried to fill the hall with locals or just how vacuous Ruth's speech was tied up with ad hominem attacks. The blogo-sphere was strong on anger, bile and detestation and short on getting the important message out.

The message the Tories sent out, this weekend, told us Scots in no uncertain terms, a 'No' vote means Scotland being reduced to an economic wasteland like the North of England, a state of affairs Scotland suffered in the 1980's, as resources and finance continues to be sucked south into London and the SE to prop up the failed and failing 'austerity project' of the Tories.

As to Mr Marr. Alex Salmond managed to draw out a clear example of bias in a BBC political commentator, in full view of the UK public. Salmond understood that simply leaving it out there, as a viral You-Tube video would do much more damage to Marr and the BBC than any outburst of outrage. His spokesperson made it clear he accepted the cut and thrust of debate and had made his point clearly. Sadly the outcry has shifted the emphasis from Mar's statement, his attempt at bluster and his loss of control of the interview to a polar argument which is about the individuals concerned, bias and bullying rather than the failure of the BBC to hold one of its top journalists to account and the particular journalist's failure to back down when he had been caught out peddling an unsubstantiated, personal, political view as factual comment.

Quietly, in the background, missed in all the muck slinging, one of the 'No campaign's' constitutional experts - Professor Brown - has started getting his knickers in a twist as to what is the actual constitutional status of the the UK Parliament at Westminster is on a 'Yes vote' in September and just what the impact a 'Yes vote' will have on the May 2015 Westminster election. The article in the Telegraph demonstrates just how confused Professor Brown is on the matter and unclear where sovereignty will lie. The argument for a continuing UK Parliament is weak. The Prof accepts there will have to be an exclusion of MPs from Scottish Constituencies from what will be sovereign English and Welsh Acts, Bills and statutes with regards to post 'yes' negotiations, prior to the Scottish MP's exit in March 2016. As what will be English and Welsh issues make up the majority of the work in the run up to March 2016 - just what is the point of Scottish MP's anyway? This is a position the good professor is left struggling with and concedes the May 2015 election could just be for English and Welsh (with NI) constituencies rendering the ten minute bill he was commenting on unnecessary and even moot.

It amazes me the professor appears to have no knowledge of neither Lord Cooper's clear statement on the issue of  'the limitations of UK Parliamentary sovereignty' in McCormack nor Lord Hope in the UK Supreme Court's ruling in AXA vs the Lord Advocate (2012) which supported Lord Cooper's judgement that the sovereign supremacy of the UK Parliament is in fact limited by law. As a result of the UK Supreme Court judgement other legal experts are stating the 1998 Scotland Act can only be interpreted within law, is limited and can not be held to be constitutionally binding having no real constitutional force as it is forfeit to 'the considered will of the people of Scotland which is paramount' and protected for 'all time' by article 19 of the Treaty of Union (1706). Some experts now claim the UK Supreme Court ruling on AXA leaves UK Parliamentary Bills, such as the Welfare Reform Act (2012), open to legal challenge in the Court of Session where a bill of the UK Parliament can be shown to be contrary to the will of the Scottish people as represented by majority Scottish elected representatives at Westminster and Holyrood. The UK Supreme Court ruled it had no power to set aside any Act, Bill or statute of the Scottish Parliament which reflected the considered will of the people of Scotland. This is a clear expression of the legal limitation of UK Parliamentary sovereignty.

I wonder how long it will be before Professor Brown comes round to the contention I have made on a 'Yes vote' which means returning the sovereign powers to the original parliaments of the two realms which make up the British mainland?


  1. My view is that, until Scotland becomes formally independent, it would be completely unacceptable for Scotland not to be represented by its full quota of MPs in the UK Parliament, even if this is only for the period between May 2015 and March 2016. What if there is some major crisis in the meantime? What if Independence Day has to be postponed? What about Article 22 of the Treaty of Union, which will surely have to remain in effect until Independence Day and which specifies that Scotland shall be represented by 45 MPs?

    It seems to me that one solution to the problem might be for Westminster to pass a law setting up an rUK Parliament to deal with all business which is devolved for Scotland, except for that which is devolved to the Welsh and Northern Irish Assemblies; MPs other than those elected for Scottish constituencies would be members of both parliaments. In effect, the rUK Government, which would be responsible for negotiations with the Scottish Government, would be the House of Commons minus Scottish MPs, while Scotland would still be properly represented in the UK Parliament. It would be an awkward arrangement, but then it would only be temporary.

  2. Les - it comes down to the reality that on a 'Yes vote' sovereignty returns to the two original, signatory, sovereign parliaments as Lord Cooper makes perfectly clear in McCormack because only they have the power to alter or change the Treaty of Union. The UK Parliament has already conceded this is the case.

    This being the actual legal position, which the UK Parliament has already conceded and UK Parliamentary sovereignty being limited by law, as made clear in both McCormack and AXA, the UK Parliament ceases to exist as the two original parliaments have withdrawn their sovereign powers from the UK Parliament at Westminster to under take negotiations on its demise.

    That the UK Parliament at Westminster is in denial of the legal concession it has already made can be no surprise as it renders much of the No Campaign's claims of retribution against an independent Scotland empty and valueless.

    I have not stopped researching this issue as it is key to what happens after September - an increasing number of legal experts are now thinking the same way as the defacto 'sovereignty' of the Scottish Parliament has now been upheld in cases brought by Imperial Tobacco and others over Scottish smoking and alcohol legislation in Scotland at the UK Supreme Court. Each has come up against the test of the considered will of the people of Scotland being paramount and have lost - Article 19 is still very active in the protection of the people of Scotland's constitutional interests.