By Jim Sillars
I am on the outer fringes of the SNP, but recognise its importance to the independence movement. Watching the party self-inflict an electoral wound, through constant demands for a second referendum, arising out of a complete misinterpretation of the EU referendum result, has been painful.
I fear we may be about to witness further self-harm. Threatening to veto the Repeal Bill taking the UK out of the EU, by refusing a Legislative Consent Motion under the Sewel Convention would be a serious mistake.
The mistake over indyref2, was to demand what most people did not want. The veto mistake is to demand what the SNP Government cannot deliver. If the boasting threat about veto continues throughout EU negotiations, it will again raise expectations to an impossible height, only for them to deflate massively, leading to further electoral setbacks.
I do not under rate the importance to Scotland, Wales and Northern Ireland of the EU negotiations and while no friend of the present Government, I can see why it will not include them in the UK negotiating team. The die was cast from 23rd June last year, when Nicola Sturgeon set out to differentiate Scotland, in the eyes of Brussels, from the rest of the UK. Making Scotland Brussel's insider friend may have pleased many of my fellow party members, but meant that when hard confidential negotiations get under way, the UK Government would be daft to invite a potential Brussels cuckoo into the nest. A short term tactic which played well in Brussels, fell flat in London, which is where Scotland really needs leverage.
Sadly, short term PR gains leading to longer term strategic losses have been a marked feature of the Sturgeon leadership. Indyref2 is the classic example, but another was the decision to contest Article 50 at the Supreme Court. There was no need to do so. The issue was solely on the Royal Prerogative. By sending in the Lord Advocate to argue Sewel, the Supreme Court was able to deal it a death blow in terms of whether the Scottish Parliament could hold a veto over UK withdrawal from the EU.
Crucially, the Supreme Court, pointed to Section 28(7) of the 1998 Act, setting up the Scottish Parliament, stating unambiguously that it did "not affect the power of the Parliament of the United Kingdom to make laws for Scotland." It also pointed out that the Westminster Act of 2008, incorporating the Treaty of Lisbon, which affected the competencies of the devolved administrations, was not subject to consent motions. Finally, the concept of a Scottish veto was crushed by Section 150 of the Supreme Court judgement, which noted that the Lord Advocate and Counsel General for Wales were "correct to acknowledge that the Scottish Parliament and the Welsh Assembly did not have a legal veto on the United Kingdom's withdrawal from the European Union."
The Sewel Convention is a political, not a legal requirement. There have been legal attempts to uphold a Convention. The Supreme Court noted all have failed and will fail. . The inability of my SNP parliamentary colleagues to read and understand legislation (as with the Named Person fiasco) or to differentiate between legislation and convention, is worrying.
The Repeal Bill is the converse of the 2008 Act which took us deeper into the EU. Its primary purpose is to take us out. As such, it assumes the same status and becomes a matter reserved solely to our only sovereign Parliament - Westminster. I don't like it, but that was the Scottish decision in 2014, and the political and legal reality.
The irony is that if Nicola had not sent the Lord Advocate to argue the relevance of the Sewel Convention as far as Scotland was concerned, we would not have had a definitive ruling against it, and so there would be some uncertainty which she could have been used as leverage against the May Government. Instead another line in the sand was washed away, leaving future threats looking increasingly empty and hollow.
The time for grandstanding is over. Scotland's interests will best be served by building a wide consensus of national support for powers presently held in Brussels to come to Edinburgh, powers that can help our economy to grow.
If Nicola Sturgeon chases that objective, spreading the tent wide to embrace the Remainers and the Leavers, the Yes and the No, she may yet recover what has been lost of her standing in our nation's eyes.