BY EFFIE DEANS
Something odd happened yesterday. No. Let’s leave to one side the peculiarities of opinion polls, the American voting system and matters across the Atlantic that don’t really concern us, no matter how excited we might get about them. The SNP lost a vote in the Scottish Parliament.
Opposition parties including the usually loyal Scottish Greens united to defeat the SNP Government 63 to 54. The issue that just won’t go away is Salmond. What was the legal advice that the Scottish Government received during its investigations into Salmond’s alleged sexual misconduct? The SNP has refused to hand this advice to the Salmond Inquiry and Nicola Sturgeon, Peter Murrell and others have been less than open about it.
The issue is not merely the half million pounds that Salmond was awarded by Scotland’s highest court because it found that the SNP Government’s investigation was biased. This waste of public money matters, but what matters more is and always has been what did Nicola Sturgeon and other senior figures know and when did they know it. Why was there an investigation into Salmond’s behaviour years later rather than at the time of the alleged offences during the independence referendum campaign? Was that investigation politically motivated? These are the issues that matter and which we need to know about.
The SNP wall of secrecy is being gradually chipped away at. There was a time not so very long ago when the SNP’s inner circle was completely immune from scrutiny. SNP MPs and their journalist friends would not criticise each other in public and party discipline was complete. SNP politicians may have had little talent, but they knew enough to do what they were told. Walk through this lobby rather than that one, push this button not that one, say nice things about Nicola Sturgeon, don’t say anything else. But the shield wall has gaps in it now.
The SNP have two choices. They can say that the vote in the Scottish Parliament yesterday was not binding. They can argue that the principle of legal advice being secret must apply here. They can say as Mr Swinney did yesterday that they “always seek to respect the decisions taken by parliament”. But an important principle has been established with this.
The SNP Government may or may not do what the Scottish Parliament asks it to do. It can reveal the legal advice, or it can refuse to reveal it. It can therefore ignore the vote that the Scottish Parliament just had yesterday.
But these MSPs were all elected by the Scottish electorate. If their views can be ignored by the SNP Government, then why can’t they also be ignored by the British Government?
The SNP’s only legal route to independence is to hold a vote in the Scottish Parliament asking the British Government to grant a second independence referendum. But whether or not the SNP Government gives into the Scottish Parliament’s wishes that it release the legal advice that was given to it, it has asserted that it doesn’t have to. But if that applies now it will also apply after next May or whenever the next election to the Scottish Parliament occurs. If even the Scottish Government does not need to do what it is told after a vote in the Scottish Parliament, why does anyone else?
The whole problem with devolution is that no one understands what is reserved and what is devolved. While healthcare is devolved, Treasury funding is reserved. This is why Sturgeon has the power to decide if there is to be a lockdown in Scotland, but she does not have the power to fund it. She has to ask the Chancellor and he can say yes or no. The likelihood is that he will say yes, because he will strive to be fair to all British citizens. But he cannot transfer the power he has to Sturgeon, because it is his power as Chancellor and not her power as First Minister of a devolved parliament. However much she wants to be leader of an independent country, she is not and wanting something doesn’t make it so. Opinion polls don’t make you president. The SNP lost the only vote that matters in 2014.
Well if the Scottish Government can treat a vote on revealing legal advice about Salmond as non-binding, the British Government can treat a Scottish Parliament vote on its desire for a second independence referendum as non-binding too. It is non-binding not least because constitutional matters (i.e. independence) are reserved. They are outside the remit of the Scottish Parliament.
Asking for legal advice to be revealed is inside the remit of the Scottish Parliament. If a vote that is inside its remit can be ignored by the Scottish Government and it has already said that it can, then clearly a vote that is outside the remit of the Scottish Parliament can be ignored by the British Government. It could simply reply that the issue (i.e. independence) was none of your business.
What is amusing is that even if the SNP Government decides at some point to release the legal information (if indeed it exists), it has already established the principle that it is legitimate to ignore the wishes expressed by the Scottish Parliament.
If and when Nicola Sturgeon travels to Downing Street with a vote from the Scottish Parliament demanding a vote on Scottish independence, Boris Johnson or any other future British Prime Minister can point out to her that her own Government has admitted that votes in the Scottish Parliament can be ignored.
Even if she reveals all by running down the High Street in Edinburgh stark naked, she will discover that the one thing she cares about (independence) is outside her control. The Scottish Parliament has no more right to vote on it than it does to pay our furlough wages. Sturgeon may pretend to be queen of Scotland, but she might as well pretend to be Mary Queen of Scots. Poor Mary pretended to be Queen of England, but it didn’t end well.
The excellent Effie Deans writes at Lily of St. Leonard’s here.