The Scottish Nationalists Put on the Back Foot

The Scottish Nationalist Party (SNP) have doubtlessly by now taken note that their path to Independence is not going to be as smooth as they had been allowed to believe, between their spectacular May 2011 Scottish Assembly Election victory and 08 January 2012. Spoiling their progress on that day, British Prime Minister David Cameron, brought Scotland's SNP First Minister, Alex Salmond and his administration down to earth with a jolt.

No doubt wishing to spare Mr Salmond's blushes should any future pronouncements on Independence, Referendums and the like be outside United Kingdom law, which currently still protects Scotland, the Prime Minister pledged to publish the legal requirements by which Westminster will permit any Referendum to go ahead. Mr Cameron was widely quoted in the media as saying that any Referendum should be held "sooner rather than later" and adding: "I don't think we should just let this go on year after year."

Obviously striking a raw nerve, Salmond, his Deputy Nicola Sturgeon and other SNP figures fell back on the argument that they would not be dictated to by (a Tory Prime Minister/Government in) Westminster, their "mandate" from the Scottish people being sufficient to give the SNP at Holyrood the right to determine the timing of the Referendum, the question(s) asked and the composition of the franchise - it's the Party's intention to lower the voting age to 16.

Could SNP bluster vanquish the law? Not for the first time SNP political spin was on a collision course with the legal profession. The Times newspaper on 16 June 2011 in an article titled "Salmond at war with the law" by Angus Macleod, the paper's Scottish Political Editor, described Mr Salmond "...launching an ill-tempered broadside against a senior judge and a leading human rights solicitor after which the Dean of the Faculty of Advocates and the President of the Law Society of Scotland "issued an unprecedented joint statement in which they came close to accusing the First Minister of ignoring the rule of law." wrote Mr Macleod.

Mr Macleod went on to quote part of these eminent lawyers' judgement on the issue and it's difficult to imagine a firmer rebuke from the highest in the Scottish legal profession:

"Our judges must be free to decide cases independently, according to law and upon evidence. Any attempt to influence the outcome of litigation by reference to political wishes or a politician's perception of popular opinion is a challenge not only to the courts but to the rule of law."

There is little doubt that Mr Cameron did his homework before making an attack on a politician and policy that he so fundamentally disagrees with and it is quite likely that he has clarified the legal position with the likes of Dominic Grieve, Attorney General for England and Wales - the Act by which the Scottish Assembly was set up was passed by Westminster - and Lord Wallace of Tankerness, the Advocate General for Scotland. (Lord James Wallace, QC, was formerly the MP for Orkneys and Shetlands and Leader of the Scottish Liberal Democrats. He is currently a Life Peer in the House of Lords as well as being Scotland's Advocate General. The Scottish First Minister does not appoint Law Officers - surprise, surprise!)

Few politicians are of a more populist bent than Mr Salmond and all this may cut little ice with his supporters in the political arena but it should make him a little more cautious in what he says (as fact) in future, though it probably won't. Where his argument on a mandates is most vulnerable is in the very Act of Parliament which set up The Scottish Assembly and his Office, for under the Scotland Act of 19 November 1998 "...the Scottish Parliament can make primary and secondary legislation in those areas not reserved to Westminster..."

The list of "reserved matters" is lengthy and complex but in the Summary of Reserved Subjects, the very first one is The Constitution

Nobody can argue that a breakup of the United Kingdom would not affect the Constitution of the United Kingdom! Nor can anybody argue against the fact that a Prime Minister of the United Kingdom has a duty to defend the United Kingdom, to prevent it splitting and to defend that Constitution. Is not Defence of the Realm the highest duty of any Government? Meekly accepting the SNP's path to Independence without quibble would be a failure on the part of the UK Government.

Why has it taken, in the view of the SNP at least, the diktat from Westminster to spike, if but temporarily, the Party's plans? The answer is to be found in the SNP's overall majority at Holyrood trumping an election system specifically designed not to allow any sole party gain that dominance - and especially them! Their victory was such a shock and in some constituencies particularly so, that the three main opposition party leaders of Scottish Labour, Scottish Liberal Democrat and Scottish Conservative - all in favour of continued Union - felt it necessary to resign.

The appointment of the new Scottish Labour Party Leader, Johann Lamont, by far the main opposition to the SNP in Edinburgh, really took too long, only being confirmed shortly before Christmas and allowed a lot of political SNP hay to be gathered while the sun shined. We should now hear a firmer challenge to SNP policies at Holyrood.

There is undoubtedly some catching up to do as the Sunday Express on 29 January 2012 published the results of a Vision Critical Poll conducted on the previous Thursday and Friday which asked Alex Salmond's preferred Referendum question: "Do you agree Scotland should be an independent country?" The sample was UK wide and only a small population sample of 180 were asked in Scotland. Fifty-one per cent of the Scottish sample answered "Yes" and 39 per cent were against.

Whether the Referendum takes place in the fairly near future as Prime Minister David Cameron (and probably most pro the Union) would like, or in August 2014 as Mr Salmond has indicated, there is still everything to play for.

Those opposing the SNP should not be shy in exposing that Party's weaknesses, especially cherry-picking figures or events in history - there was more on William Wallace's charge sheet than giving Edward I a poke in the eye at Stirling Bridge.

The SNP and their supporters must do more to convince the current majority against Independence why the past 400+ plus years of the Union of the Crowns or 300+ years of the Union of the Parliaments has been such a bad deal and would it have been any better?

Speaking on BBC's The Big Debate - Choosing Scotland's Future on 25 January, the new Labour Leader, Johann Lamont spoke for most Scots when she quipped:

"I don't feel socially oppressed by the English.

"I don't want to be liberated by Alex Salmond."

Sounds like the opposition in Edinburgh is getting a voice!