Category Archives: Constitutional Law

A Scot on SCOTUS…

…or what may or may not happen and what happens when and if it does.


Antonin Scalia, the most senior Associate Justice on the Supreme Court of the United States (SCOTUS), died this week aged 79. This means two important things:

  1. There is now a seat on the most important Judicial Bench in the world; and
  2. The Judiciary is now a live issue in the US Presidential Election.

The second of these is political – and will depend (theoretically) on the candidates legislative and legal outlooks. But the first raises issues of Constitutional Procedure and legal operation. It also comes the closest America gets to a constitutional convention which may or may not exist, depending on how convenient it’s existence is to the Majority in the Senate.

The Supreme Court and the President

The 3 branches of the US Federal Government (The Legislature; The Executive; and the Judiciary) are established in Article 1, 2 & 3 of the US Constitution respectively. However, despite the US’s love of ‘Separation of Powers’, the President and Congress play a pivotal role in the selection of new Supreme Court Justices.

In the UK, while the Queen appoints new Judges at the Prime (or First) Minister’s recommendation, this is more stuffy Constitutional rules than genuine political process. The reality is that independent judicial appointment committees do the vetting and recommendation. This ensures – as much as it can be – that judges are independent and impartial.
In the US however, the process is explicitly political, with the President and Congress both having key, and invariably politicised, roles to play.

When a spot on the bench opens up, the first step is that the President nominates a person to the Supreme Court. This is his right under Article II, Section 2, Clause 2 the US Constitution which states (in potted terms):

[The President]…shall nominate, and by and with the Advice and Consent of the Senate, shall appoint …Judges of the Supreme Court…

This is usually a high-ranking judge on one of the Courts of Appeal, or other experienced judicial official or legal academic.

While this clause in the Constitution is the only legal rule regarding the President’s power to nominate SCOTUS judges, there is a more flexible political rule in play, the ‘Thurmond Rule’. This stems from the Civil rights says when Senator Thurmond (a Southern segregationist) mounted a campaign to block President Lyndon B. Johnson’s (who signed the Civil Rights Act) US Supreme Court nomination as pay-back. He defined this rule as meaning that no life-time judicial appointments should take place in the latter part of an election year.
This is this that has caused some excitement regarding the appointment of Scalia’s successor. 2016 being an election year, the Republican Majority have attempted to invoke this ‘rule’ (which has no legal standing) to argue Obama should not nominate a successor as the election process is underway. However, while the election will happen on the 10th November 2016 – the winner won’t become the 45th President until January 2017, and with confirmation processes lasting around 2-3 months, this means there could be vacancy on the US’s most important court for over a year! The significance of this is discussed below, but it could well be a political reality, though not a legal requirement.

The Supreme Court and The Senate

Should Obama nominate a candidate, they then face the Senate Judiciary Committee. After (what is almost always) a lengthy testimony, usually spanning days, the committee then vote on whether to recommend the nominee to the Senate or not. A rejection here is not a de jure end to the nomination, but de facto is not a good sign for success, so may lead to a withdrawal and starting the process again.

What really matters is the vote before the Senate. Out of respect for the prestige of the position, a roll call vote is always called. Each Senator states whether they support or oppose the nominee. Theoretically, this only requires 51 votes (a simple majority) and the job is done.
However, especially in these partisan times, the danger is the filibuster. It is possible that, if the opposition is strong enough, the opponents could try and talk out the clock on the nomination process and avoid a vote altogether. Since 2013, most filibusters can be ended by 51 Senators voting to bring it to an end (a “cloture vote”). However, appointments to the Supreme Court are one of the few exceptions, and requires a three-fifths super-majority (60 Senators) to vote in favour.
On the practical level, there are currently 54 Republican Senators and only 46 Democratic-bloc (44 Dems and 2 Dem-voting Independents), meaning that it is virtually impossible for a filibuster to be blocked if it was deployed. This would have political ramifications, as all Congressional actions do, but would be legally doable.

The Supreme Court in the meantime

In the end, if a nomination isn’t made until the next President is sworn in; or the nominee withdraws after the Senate Judiciary Committee; or the Senate rejects him; or his nomination is filibustered out and doesn’t even reach a vote, then there will remain only 8 Justices hearing cases on the Supreme Court – and it’s a key time in US Jurisprudence.

Upcoming cases include cases on voting rights, Union rights and (the most divisive of American topics) abortion. While Scalia was on the court, these cases would be decided and would, most likely, be decided in the conservatives’ favour.
A funny aspect of SCOTUS is, because of the political nature of appointments, is the court is extremely partisan . In most cases, you can predict with 90% certainty that 4 justices will form a liberal bloc (Ginsberg, Breyer, Sotamyor and Kagan) and 4 a conservative one (Scalia, Thomas, Alito and Chief Justice Roberts) with Anthony Kennedy being the swing-vote.
Now Scalia’s seat is vacant, this becomes a 4-3 default, with a swing or 4-4. {1}

If there’s still a majority on the court then, all is well. There is nothing that stops SCOTUS hearing and deciding upon cases with only 8 justices. It is a 4-4 decision which may prove more troubling. There are three consequences to a tie on the bench:

  1. The decision of the court from which the case was heard is upheld.
  2. No precedent is set from the Court.
  3. The same matter may not be re-appealed to the Supreme Court.

In Common Law countries (such as the US), this could lead to legislative-confusion. A No precedent set in key cases, which arise form a particular set of circumstances and haven’t had Supreme Court consideration for years (such as abortion) and it could be some time before they reach the court again. Even if the court agree the matter can be “re-argued”, it can still take months and years before a judgement is rendered.  A no-score could delay the development of much-needed jurisprudence in contentious and vital areas of law.

The ratio

As Toby Zeigler discovered in Season 1 of the West Wing, getting a judge onto the Supreme Court isn’t an easy task. It has multiple steps, numerous obstacles and many pitfalls, which can be terminal to a Presidential legacy…especially one nearing it’s end.

It’s clear that the process of replacing Justice Scalia requires the legal processes, which are clearly defined in the Constitution and show Obama can (and it appears will) nominate a successor, to brush up against the political realities (A Republican Senate, a hung Court, and ongoing Primary election and potentially one of the most polarizing Presidential elections the US has faced in recent times). What will happen is hard to be sure of, but Obama can play it smart, and get either a liberal on the bench, or Republicans to block appointments out of spite.

Either way Scalia, a constitutional textualist who stuck by the words (not the spirit or customs) of the Constitution, would probably agree – Obama can (and arguably must) nominate the (potential) 113th Associate Justice of the Supreme Court of the United States.


An addendum:
There is (of course) another way Obama could appoint a Jsutice to SCOTUS. He could – if he wanted to have fun – wait until the Congress was out of session and just appoint his next Justice. They can only serve until the end of the next session, but it could help solve part of the problem. This is impractical, however, as he would have to wait until around December (after the 2016 Elections – which are looking good for the Democrats so far) and his appointee would have a very limited effect on the actual decisions of the court.
For completeness though, I felt I should add this in.


 

{1} It’s also worth noting that in any cases Scalia heard and voted on, but whose judgements have not yet been handed down, his vote is annulled – potentially creating retrospective ties.

 

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A Permanent Parliament…

…or a post where I really want you to read the footnotes.


My brother has put a poster up on my wall. I don’t like it, but if I take it down he’s just going to moan. So I probably won’t take it down. But you see, he doesn’t trust me – it’s against his very nature to trust me, so he wants to make sure that I can’t take it down. So, he’s put sticky tape on the poster to attach it to the wall. But he’s not really thought this through. Sure, it seems safer, but really it’s not too much of a barrier – if I want to take the poster off, I just have to take the tape off as well. Simple. Tonight, the House of Commons voted on a similar problem.

It’s the cornerstone of British Constitutionalism that the Westminster Parliament is Sovereign.¹ This means it can make and unmake any law it so chooses. The logical extension of this is that Parliament cannot bind itself. It could make a law, but a future Parliament (or indeed, the same Parliament later on) could then repeal it. Parliament, therefore, cannot permanently limit its own sovereignty – but could temporarily deny it.
The Scotland Bill currently going through Westminster kind of goes against the grain. Section 1 of the Scotland Act 1998 states (rather famously):

There shall be a Scottish Parliament.

The new Scotland Bill has since it was a glint in the draftsman’s eye, has sought to amend the Scotland Act to contain a section 1A, reading:

A Scottish Parliament is recognised as a permanent part of the United Kingdom’s constitutional arrangements.

This, as many pointed out at the time, is a pointless provision that doesn’t do anything. The mere fact that the Scottish Parliament is created is sufficient and all that can protect its existence. Legally, Westminster could repeal the Scotland Act 1998 and remove the Scottish Parliament, but politically, they never ever would. In reality, there is a far more powerful political safeguard than the UK Constitution could ever provide.
If Westminster did, at some point in the future, decide that it wanted to ditch the Scottish Parliament, this clause wouldn’t stop it. All Parliament would have to do is, instead of repealing just Section 1, it would repeal Section 1A then Section 1. It’d be bad and wrong, but the government had the votes to do one, it will have the votes to do the other – it is no barrier at all. Section 1A is sticky tape. But the proposed Section 1A also still exists.

The SNP proposed an amendment to the Scotland Bill (which failed) which would insert the following:

(1A) The Scottish Parliament is a permanent part of the United Kingdom’s constitution.

(1B) Subsection (1) or (1A) may be repealed only if—
(a) the Scottish Parliament has consented to the proposed
repeal, and
(b) a referendum has been held in Scotland on the proposed
repeal and a majority of those voting at the referendum
have consented to it.

It gives some degree of additional protection in that it requires a popular referendum – but it is equally redundant. Say a Government did want to get rid of the Scottish Parliament. The doctrine of Parliamentary Sovereignty means that Parliament can legitimately repeal section 1B, before going on to abolish the Parliament. Instead of having to repeal 1 section (as it would just now), or 2 (if the Scotland Bill as it stands passes), it would have to repeal 3, and again, if the Government has enough support to repeal one section, it will have the support to repeal them all.
In short, the SNP’s amendment was just as in ineffectual as the proposal it sought to replace. Yes, if there were attempts to remove the referendum requirement from the Scotland Act, we would know that the Government were on manoeuvres – but we would know that equally well, and with the same effect, if they attempted to repeal the Parliament itself.²

So the numerous MPs and others that were ‘outraged’ that the government voted against making the Scottish Parliament ‘permanent’ are one of two things. They are either constitutional unaware, or they are attempting to make a mountain out of a very small wormhole (and, let’s be honest, probably succeeding). Either way, even if the Scottish Parliament isn’t legally permanent, the political force protecting it is too great – it won’t be going anywhere.


¹ Yes, it is a British principle. The (im)famous statement that Parliamentary Sovereignty is a “…distinctly English principle which has no counterpart in Scottish Constitutional Law” from MacCormick v Lord Advocate 1953 SC 396 at 411 is obiter, and not an established statement of the law.

² Whether this is possible now is, believe it or not, a (seldom asked) question. In the really important case of  AXA General Insurance v Scottish Ministers and Others [[2011] UKSC 46 Lord Hope (the Scottish Deputy President of the UKSC at the time) said that the Scottish Parliament was a “self-standing democratically elected legislature” [46]. This seems to suggest that, even if the Scottland Act was repealed, the Scottish Parliament could continue because it is “self-standing”. Quite what Lord Hope was thinking when he said this I don’t know – and I’ve bottled out of my only opportunity to ask him so far. I hope one day I will.

‘Higher’ Law…

…or “Constitutions on ketamine”.


So, The Smith Commission. Remember that? One of the recommendations in its Final Report was that:

“UK legislation will state that the Scottish Parliament and Scottish Government are permanent institutions. ” [para 21]

This was, in turn, translated into the Draft Scotland Clauses 2015 (what would become the Scotland Bill 2015) in s.1, which would insert the following into the Scotland Act 1998:

(1A) A Scottish Parliament is recognised as a permanent part of the United Kingdom’s constitutional Arrangements.

This immediately attracted comment as an odd position. On one hand, it was legislating for the permanence of the (or, indeed “a”) Scottish Parliament, but on the other it was absolutely useless. It is a fundamental principle of Parliamentary Sovereignty that Parliament cannot bind its successors. Any law, no matter how important, can be undone by a majority of Parliament voting to repeal it.
This means that potential the proposed ‘permanency clause’ is legally nothing more than a legislative ornament.
This is what the Law Society of Scotland were getting at in the statement they released yesterday. The current LSoS president, Alistair Morris, said that in this respect, this was merely a “…political declaration than any matter of law…”, precisely because a parliament, at present, cannot bind its successors. He suggests that, while there may be some alternative form of words that could work, there may be a more fundamental problem to enshrining the Scottish Parliament in the constitution, and that to overcome it we would have to consider some form of “Higher Law” :

Indeed, the concept of the sovereignty of the UK Parliament may, at least in legal terms, put a limit on the ability to deliver the intentions of the Smith Commission in this area.

Across the Irish Sea, it seems that our nearest neighbours may have taken the ‘Higher Law’ idea a bit too literally. Yesterday their Court of Appeal released the judgement in a constitutional case which, in a round about way, lead to certain drugs being legalised in Ireland for about 24 hours.
The material facts are that, in 1977 the Irish Parliament (The Oireachtas) duly passed the Misuse of Drugs Act 1977. Section 2(2) of that Act gave the Government the power to, without going back to the Oireachtas, make an order that would add a new substance to the list of substances the Act banned as if it had always been on the list. Since 1977, the government had made several orders doing just that, banning ecstasy, ketamine, crystal meth and other drugs within Ireland. All in all, over 120 drugs were banned using this method.
However, this case involves a man challenging his prosecution for possession of ‘methylethcatinone’ on the basis that the s.2(2) order banning it was unconstitutional. In Ireland, having a codified constitution which is a Higher Law than all other laws, all other laws must conform to it. Specifically he said that the government actions contravened Article 15 of the Irish Constitution, which states that:

2(1) The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.

2(2) Provision may however be made by law for the creation or recognition of subordinate legislatures and for the powers and functions of these legislatures.

The argument the court accepted was that, the government were, in effect, making law by themselves, bypassing the Oireachtas completely, so this didn’t comply with Article 15 of the Constitution. The result of this was that the orders banning possession of the drugs were struck down. It is still illegal to sell or supply these drugs to others, since they are regulated under different laws. Not all drugs are covered either – LSD,cannabis and cocaine are covered in the 1977 as passed, not by an order, so are still illegal to possess.
The Government, just in case the ruling went against them, had prepared legislation that was sped through the Dail (the lower house) last night and then the Seanad (the Senate) this morning. Then the President will sign it and all will be good again…but because of unusual Irish Law-making practices, the Law cannot come into force until the next working day after it is signed, that is Thursday Morning at 00.01am.

I bring these two ideas up in conjunction because I think they show an interesting contrast. In Scotland, and the UK more generally, we’re keen to consider a codified constitution, and most people see a Higher Law included in that. The idea that the Scottish Parliament could be abolished by 326 MP’s deciding to isn’t one  a lot of people like. While there’s a political barrier there, people like the idea of the legal certainty a Constitution would bring. Even during the #IndyRef, the idea of enshrining rights to (e.g) housing was floated by the SNP, without any real analysis.
The news from Ireland shows us the other side, where an inarguably sensible provision in the Constitution (That Parliament should make the laws) has thrown up an unexpected obstacle to achieving an entirely legitimate aim. In this instance, it’s quite amusing and not liable to unwind a major arm of the state, however, consider America, where it seems that just about every government programme is challenged on constitutional grounds. What any potential UK Constitution would look like, it’s position in our legal system, and most importantly its content need careful consideration

A Vote of Confidence?…

…or a dissent more important than the decision.

This is one of two pieces written on UKSC Judgements handed down on 17th December 2014. The other, on Greater Glasgow Health Board v Doogan (and Another) [2014] UKSC 68 can be found here.


The Supreme Court of the United Kingdom (UKSC) handed down two judgements this morning that had been heard in the last few months. One was the latest instalment in what seems to be the unending sage over whether Prisoners have the right to vote, with an #IndyRef twist thrown in…and gives an interesting glimpse of the thinking of some UKSC Justices.

Moohan (and Another) v The Lord Advocate [2014] UKSC 67

Full Judgement and Press Summary

The first judgement was that in the #IndyRef prisoners case where Mr. Moohan and a fellow inmate wanted the right to vote on 18th September 2014. This case was unusual in that, since the referendum would be held before the judgement would be ordinarily handed down, the UKSC made their overall decision known (the prisoners did not have the right to vote in the referendum) and the reasons would follow. Today we got the reasons.

The appellants relied on 4 key areas of law, both UK and International, to make their case, none of which successfully convinced the majority of the court that they had a right to vote.

EU Law
The prisoners argued that, since the #IndyRef was potentially also a vote on leaving the EU (since iScotland would not necessarily be an EU member state upon independence), the Referendum was illegal under EU Law, which under s.29(2)(d) of the Scotland Act 1998, would make it an illegal Act of the Scottish Parliament.
This view was roundly rejected by the UKSC 7-0, for two reasons. The first was that there was no guarantee of what Yes vote means. The Draft Scottish Independence Bill (as it stood) would have made all UK-citizens born in  Scotland ‘Scottish citizens’, and therefore no longer EU citizens, but this was not yet set in stone. Both sides conceded that negotiations to define the exact terms of Independence would take place if there was a Yes vote. Even if there was no change it would be the bill that removed EU Citizenship and not the Act that determined the Franchise for the Referendum that would be amenable to review. Even then, the court then noted that EU Law does not confer any right to vote in the first place, so the whole argument was fundamentally flawed.

The International Convention on Civil and Political Rights (ICCPR)
It was also argued that, under wider Internatinoal Law, the ICCPR gave every citizen the right to vote in referendums. The United Nations Human Rights Commission have held in the past that this right applied in Referendums too, even those involving self-determination. The UKSC accepted this argument, but still denied the appeal – why? Because the ICCPR, while the UK is a signatory to the treaty, has not bee incorporated into UK Law i.e. at a domestic level nothing has changed. While in the international sphere the UK has a duty to comply with the ICCPR, at UK/Scottish Level, the Scottish Parliament doesn’t have to and no domestic court can stop it breaking the terms. So while it’s a good point, in reality, nothing is changed.

Common Law Right to Vote
It was then argued that, even if statute didn’t allow prisoners to vote, the UK being a developed liberal democracy, the common law afforded everyone (subject to only essential limitations re. age) the vote anyway as a fundamental constitutional principle. Again this argument was universally rejected.
While it was agreed that the right to vote was a fundamental constitutional principle, it was made clear that this principle was derived from Statute, not common law. From the 1st parliaments to now, the franchise had been extended bit-by-bit by Acts of Parliament (as it seems will happen soon in Scotland) and never by judges. The court saw no reason why it should take such a radical step now, though Lord Hodge did say that were parliament to markedly curtail the franchise, then judges may have the ability to prevent it. This is a bold statement to make given the notion of Parliamentary Sovereignty is still the centre of UK jurisprudence. In the infamous case of AXA v Scottish Ministers, Lord Reed did suggest that in the face of legislation that went against the very concept of natural justice the court may step in, but here Hodge is talking about a defending a statutory concept (the franchise) and not a common law or natural law concept (the rule of law, in the case of AXA). Nonetheless, the prisoners remain voteless.

European Convention on Human Rights (ECHR)
And now I come the main argument – and the first put forward in the case, but last discussed by me because there’s a lot more to say. If any argument was going to succeed, it would be that under Article 3 of Protocol 1 (A3P1) of the ECHR the prisoners had a human right to vote. To understand how the court voted on this (5-2 rejecting the argument), it’s best to have a look at the exact wording of the right:

The High Contracting Parties shall hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

The words are explicit in that A3P1 concerns “elections” regarding the “choice of legislature”. It had preciously been held, in the UKSC and in the European Court of Human Rights (ECtHR) that elections to the legislature does not include any other kind of vote. This includes presidential elections (which are to the executive) and all referendums, however important they may be. The case offered in support for both these proposition was Niedźwiedź v Poland (2008) 47 EHRR SE6. This concerned a Presidential election and a referendum on Poland’s joining the EU. The ECtHR said that the A3P1 did not apply in these cases because neither were elections to the legislature. So the line of reasoning the majority of the court followed was (put crudely):

  • A3P1 concerns elections regarding the choice of legislature.
  • It’s scope has not been extended to referendums before.
  • The #IndyRef is a referendum.
  • Therefore, A3P1 does not apply in this case.

But what is key here is the fact that 2 UKSC Judges (Lords Kerr and Wilson) dissented from the majority view, Lord Kerr writing the dissenting judgement. They were not entirely convinced that previous UKSC an ECtHR judgements were entirely on point given the nature of the 2014 Referendum. Previously, when the courts had ruled that A3P1 didn’t apply to referendums, they were referendums on EU accession, changing the voting system and constitutional amendment. Never has the court had to consider a situation where the vote was, quite literally, choosing  the legislature: Westminster or Holyrood.
Lord Kerr (the minx) threw Lord Hodge’s words back at him from a case re. Prisoners’ right to vote in the 2011 AV Referendum, where Hodge had said, “the nature of the referendum at issue” suggested that A3P1 could not be applied in that case. Kerr suggested, therefore, that this meant there could be a referendum when the subject was such that A3P1 did apply – and SURELY this was it. He argued that previously the provision didn’t apply because previous plebiscites were “purely consultative [in] character and there was no legal obligation to organise such a referendum.” He said that there was intergovernmental agreement to implement the result of the #IndyRef and the referendum had a solid legal foundation (The Scottish Independence Referendum Act 2013). This, along with the fact that political parties had taken such hard-and-fast positions on the referendum, meant the test (which he believed had been wrongly applied in the past) was passed and, the ECHR applied and the prisoners should have the vote.
As it ended, however, Lords Kerr and Wilson were in the minority and the prisoners did not have a European Right to a vote.

Conclusion
So, in the end, the reasoning was much as was suspected. But, in some ways, the dissent is far more interesting than the decision. Lord Kerr makes an interesting suggestion that not just common law and natural justice rights can be protected by the court from a tyrannical government, but even those firmly and solely based in statute, such as the right to vote. This is a brand new idea (and one I’m not entirely certain of), and it will be interesting to see how this develops in the future (if at all). But the big thing was that, for the first time in it’s history, it was seriously reasoned that the ECHR may, in some very restricted circumstances, give prisoners the right to vote, not only in parliamentary elections (which we know it does) but in referendums as well. Whether this point of view is ever adopted at a European Level, we’ll have to wait till the next #IndyRef.

If You Play With Fire…

…or why I feel kinda sorry for Nicola Sturgeon.


It has become generally accepted that while Yes lost the #IndyRef, in the end the SNP won. They’ve had a Massive boost in membership, a new leader to replace an increasingly divisive one and a promise of a stronger Scottish Parliament. On top of that, Labour are in turmoil and in the middle of a long drawn-out Leadership contest. What can possibly go wrong? Well…

This video shows three Renfrewshire SNP councillors burning a copy of the Smith Commission Report, which is barely a week old. When the report was released, the SNP were quick to denounce it as a betrayal to the almighty Vow – in a “People who support Independence don’t support not-Independence” shock. That’s to be expected and it would be absolutely astounding if Nicola Sturgeon stood up and said, “Aye, fair enough. We’ll pack it in now”.
But this is different. This isn’t just asking why further powers weren’t devolved, or denouncing the Commission as a stitch-up. This video shows a group of elected representatives burning a publication that is highly political in a (still) highly-charged situation. “The 45” still wear their defeat with pride. The word ‘traitor’ is still banded about freely. Saltires still wave defiantly in front-gardens (although, I regret to report, Duggy Dug seems to have gone to stay in a farm in the country).

When Nicola Sturgeon began her tenure as First Minister, she said that she wanted to unite Scotland. Last week she unveiled a fairly impressive and ambitious Programme for Government over the next 12/18 months. This will take work and supreme leadership, and as leader of the largest political party in Scotland (and 3rd biggest in the UK), she should have the power behind her to do it.
Except, in the 2 and a bit months since the 18th September, SNP membership is up c.250%…and there is only one reason those people can have joined the country’s largest pro-independence party at this particular time, and it ain’t Land Reform. Most of those members want another referendum. forget the Edinburgh Agreement, that’s void now. It’s a fact that amuses me, but 6% of people who voted Yes in September signed a petition demanding a “re-vote” because they thought the referendum was rigged. I am willing to bet that most of these people are now members of the SNP.
We can see that the SNP’s focus hasn’t moved away from Independence – SNPFest 2014 at The Hydro talked about little else. There is a very clear reason for that: the SNP is now a ‘fundamentalist’ party. The pendulum between the Salmond gradualists (who seek to achieve independence over a longer-term by slowly gaining more and more power from Westminster) and the fundamentalists (who adopt a much more ‘Indy-or-Die’ approach) has swung firmly in favour of the latter in terms of numbers. To even suggest that the referendum not be run again, or that independence won’t happen soon is heresy. There is a reason Stewart Hosie addressed the masses and not Keith Brown.

Which all, of course, brings us back to the binder-burning councillors. I am not outraged at what they did. I am not appalled, or disgusted, or shocked. I’m just stupefied. Four Elected representatives of Scotland’s governing party had the following though process and believed it to be perfectly normal:

1) I could burn a copy of the Smith Report outside Council HQ.
2) That would be a good idea.
3) I could put YesScotland and SNP stuff around it.
4) I’ll need to get someone to film it though. Put it on YouTube.
5) Where’s the lighter?
6) Nothing can possibly go wrong.

It’s incredibly obvious what Nicola Sturgeon should do with the people involved. They should be ‘sacked’ from the party. They should be denounced as silly people who do not represent the official views of the SNP and their actions are not condoned. Sturgeon should do that – but could she? These councillors (who are, worryingly, pre-#Indyref members) probably represent the views of many, many members of the party. Can a new leader risk slapping down this fundamentalist faction so harshly so soon? This, not government policy, could be the first big decision of her leadership.

Personally, I think she should go for it and stamp her authority all over the party: Those who make trouble, pull stunts and denounce everyone who disagrees with the SNP line as traitors are not welcome. There wouldn’t be a rebellion, there’d be a realisation! What a signal that would be, and it would prevent so many problems down the line.  Remember the UKIP guy who said that silly thingno the other oneNO, the other oneNO THE OTHER OTHER ONE! Just as UKIP have become the “We Could Never Say This in Any Other Party” Party in England, the SNP risk becoming the “FREEDOOOOM” Party – an image they had to do so much to successfully shake off. If Nicola stamps down now, there is a chance people will listen and she will regain the momentum. If she hesitates, the pendulum will swing too far to reclaim, and the fundamentalists may well have their time in power.


I am pleased to report that for the first time I came up with 2 potential titles for a blog post that I was happy with. In the end, I went the one with more angles, but I reserve the right to switch it to “The Smith Commission Heats Up…” at any time.