Thursday, 29 May 2014

Answer the Question!

I might do a bit of blogging but I also have a proper job.

And it is from that proper job that I draw my theme tonight.

In the course of today I had a conversation with a social worker in relation to one of my more important current cases due shortly to come to Court. Without going into too much detail it relates to a matter in which she previously had a long term  involvement and had taken a view advantageous to my client. Only she was no longer involved in the case and her successor, of much less experience in dealing with the matter, had chosen to take a very different view. A view, shall we say, not nearly as favourable to the interest I had been engaged to represent.

So it was obviously of importance to me, and my client, to know whether the first social worker agreed with that change of approach. In pursuit of which I had written to her asking her to contact me. Which she had singularly failed to do.

Accordingly, the Court date looming, this afternoon I phoned her.

And, initially, perfectly politely, she advised that she was not willing to speak to me. It was no longer her case. But I pressed on. "But surely you still have an opinion on it?"

In response she as good as admitted that she "could not" be seen to disagree with her colleague. So she did not want involved. Now, would I please respect her wishes?

But, of course I could not respect her wishes. For my duty was to my client. If, as was her privilege, I conceded, she did not want to give me her view directly on the phone, then I would simply cite her to court.

"Well obviously I would have to attend" she in turn accepted "but then I will simply refuse to answer your questions."

"Well, we'll see what the Sheriff has to say about that" was my parting observation.

For that is how my job works. I put witnesses on the stand and, assuming my questions are competent and relevant, then they have an obligation to answer them. And if they refuse to answer them I can appeal to the bench, who will direct the witness to answer or end up in jail.

Now, I am moved to observe that this is very different from the trade of politics and the broadcast media. The broadcast media do not have anything other than moral authority to require any politician to appear before them. Patently, they do not have the ability to "stick" their chosen "witnesses" with a citation and obtain a warrant for their arrest if they fail to attend. But more distinctively still, they do not have the ability to insist that their questions be answered.

For there is no arbiter. No third party to observe that a question has not been answered and then in turn insist that it is. There might be any number of viewers or listeners shouting over the airwaves "Answer the question!" but none of them, unlike a Sheriff, have the simple power to direct of the prevaricator that he or she answer or be "taken down."

And, even then, in broadcasting, there is the limitation of time. In a court setting there is no need to worry about that. But on the radio or telly both witness and interrogator know that in another three minutes or so there will be a need to go to the sports news or the traffic news or the weather.

Quite differently, if a witness in court wants to waffle on for ten minutes providing no answer to the question then, once they have finally run out of breath, you can simply ask the question again. And, if needs be, again and again and again. Until finally you can turn to the Sheriff and request "I wonder if your Lordship/Ladyship might direct the witness to answer?"

When, so directed, I say from experience the witness slowly realises that the stakes have now risen beyond their ability to keep this evasion up and on to the territory of their future liberty. And, if they don't realise that immediately, they are most certainly alerted to that from the bench if they attempt another waffle. At which point generally proper answers are forthcoming.

Now, I am prompted to these observations by two recent developments in the independence debate. The first is the most recent blog of my fellow, if much more distinguished,  lawyer, Professor Adam Tompkins. There he asks three reasonably straightforward questions of the SNP.

(Actually he asks five questions but two are insufficiently focused. That's the difference between a distinguished academic and a mere hack trial lawyer. Never mind that the other "two" questions are actually the same question)

1: how would an independent Scotland fund the Scottish fiscal deficit: by implementing spending cuts of £2.5bn, by increasing taxation by this amount, or by borrowing? 

2: if the Scottish Ministers do not accept that it would cost an independent Scotland £1.5bn to establish the institutions and public services it would need, what is their alternative figure and how has it been calculated?

4: how is Mr Salmond’s new immigration policy consistent with the commitment given by his Government in the independence White Paper that “there will be free movement across the border between Scotland and England”?

These are important questions but I mean no disrespect to the Professor when observing that none of them are new questions. Nonetheless the broadcast media have been unable to secure an answer to any one of them in the more than three years since this whole debacle started.

Just as I might add a sample question of my own.

6. if negotiations for continued EU membership are not concluded by 16th March 2016 would independence still go ahead on that date even if that meant leaving the EU? 

Never mind the bloody obvious question, also  never answered

7. if ruling out a Currency Union is not a bluff, what currency will we use?

So that is the first development. 

The second was John Swinney's interview on Good Morning Scotland yesterday morning. He was asked eleven, or arguably thirteen, times what would be the transitional costs of Scottish Independence?  And eleven, or thirteen. times he declined to answer. Before they had to go to the sports/traffic/weather news. But at no time did he say he didn't know. For, even in the forum, simply, of the broadcast media he remained aware that prevarication was a lesser crime than perjury.

However, although neither of them can claim the distinction of being lawyers, today, in the Parliament, as Senior and Junior Counsel respectively, Ruth Davidson and Willie Rennie got as close to getting an admission of guilt from his co-accused as might have been possible under the auspices of a bent judge in the chair. 

For Salmond as good as conceded that the SNP do know the transitional costs of independence. They had asked that question of their Civil Servants and presumably had been provided by them with an answer. An answer that would reveal  how much money that might otherwise be available to combat child poverty or early diagnosis of cancer or educational underachievement would, in Salmond's opinion, be much better spent on a flag.

So let's have Mr Swinney back on Good Morning Scotland. And, while a Sheriff to direct him might be too much to hope for, let's ensure that the Sports/traffic/weather news waits until he answers the question. 

Sunday, 25 May 2014

Scotland in Europe

Strangely, the first Prime Ministerial Hand I ever shook was that of a Tory, Edward Heath.

It was during the European Referendum campaign of 1975 and Heath was the main speaker at a rally in Paisley Town Hall. I was sixteen and had just left school but my Dad, who had only recently demitted office as Paisley's Provost, was in the Chair. So he made the necessary introductions.

I've always been a strong advocate of an ever closer Union. Certainly, the EU has its faults, its bureaucracy and its lack of democratic transparency, but these are surely nothing besides its shining achievement. Open borders and free movement and trade between countries that, within living memory, had engaged against each other in the most destructive wars of all time. (See Note 1)

So, amongst my major objections to Scottish Independence has always been the fear that we would put that membership at risk. Not merely in the technical way that Scotland itself would, at best, have to re-apply for membership but in a more symbolic way. If we could not demonstrate that, even after three hundred years of mutual peace and prosperity, it was possible for two neighbouring countries to remain in Union on one small island, does that not threaten the idea that twenty eight countries might reasonably expect their own much shorter alliance across an entire Continent to be of a more permanent nature?

It hardly seems the best way to advocate the merits of village life by personally moving into a remote farmhouse.

And be in no doubt, as I highlighted in my immediately previous blog, while I have no doubt that some in the SNP would genuinely prefer to be in the EU, not one of them has ever suggested that failure to secure membership would be a bar to proceeding to Independence. I am surprised sometimes that they are not more directly confronted about this for it seems to me that all precedents make their eighteen month timescale for this wholly unrealistic. (See Note 2)

But there is another, even more delusional argument made by the Nationalists. That is that  the major threat to Scottish EU membership lies with euro-sceptical opinion in England and the potential in/out referendum promised by the Tories if returned in 2015.

For what its worth, I do not think, even if there was an outright Tory Government and even if there was a referendum, Britain would vote to leave the EU. The vast majority of Labour voters wouldn't; nor would those remaining loyal to the Lib-Dems. And while I accept that the Conservatives do contain there share of little Englanders, they are also the Party of big business. Indeed that's one of our major criticisms of them! But British big business would be as overwhelmingly opposed to British isolation in Europe as Scottish big business is opposed to Scottish isolation in Britain.

And, in the end the vote would, as always, turn on "the economy stupid". And the economic imperatives of staying in are just too obvious, just as they will be on September 18th.

But of course two things would make a British vote to leave slightly more likely. Two things also at stake on 18th September next year. The first is that a Yes vote to Scottish Independence significantly increases the chances of their being an outright Tory victory next year. For not only would that remove Scottish Labour MPs from the Westminster arithmetic, it would remove Scottish Liberal Democrat and SNP MPs as well.

And of course, secondly, a "British" vote without Scottish input would also be more likely to produce a vote for "Britain" to leave. The differences in Scotland's degree of support for the European project might not be quite as wide as suggested in some quarters but they do indeed exist. If there was to be an EU referendum one would assume that the Pro-Europe campaign would start with the assumption that London, Scotland and Wales were the equivalent of their "safe seats".

"But none of this would matter to us anyway if we're free (and in)" protest the Nationalists. "If England left, we would stay!" (See Note 3)

This is arrant nonsense. Two thirds of all of Scotland's "foreign" trade is directly with the rest of the UK and almost all of the rest has to pass through England to get to its ultimate market beyond. A Scotland in the EU and an England without would mean tariffs on that trade. We (or even the English) might not want those tariffs between ourselves but THAT WOULD NOT BE OUR DECISION! For the external tariffs of the European Union are precisely the sort of situation where the views of twenty seven countries are required to be considered. We'd be a pretty small voice (to put it at its kindest) if we advocated free Trade with England. A frankly irrelevant voice if England proposed having the advantage of free trade with any part (and thus all) of the EU while free of the other regulatory requirements of the Single Market.

And then there would be the question of the open border. It would defeat the whole object of trade tariffs if English goods could evade them simply by driving up the M6 to Gretna. Certainly Europe does have open borders with certain other Countries: most notably Norway and Switzerland but that is because they are members of EFTA and thus part of the European Economic Area. No eurosceptic proposes that following a British exit, because participation in the EEA requires agreement to observe EU Rules without having a say in their terms. And paying a substantial fee for the privilege. No matter what one thinks of those campaigning for a British withdrawal, nobody thinks that either of these conditions are ones they would be likely to agree to. Their whole rationale is to escape rule from Brussels even when we do have an input.

So Scotland in and England out would mean a physical customs border and, what is more, likely restrictions on the freedom of English citizens to come and work in Scotland. Restrictions not made by us but rather by our European partners. And who would then be confident the English would not reciprocate? If they didn't want Romanians and Poles "taking their jobs", why would they want Scots?

But, in reality, would any of this happen? Of course not. The damage to Scotland's economy would just be too great. Just as Ireland, long wanting to be in the EU, realised nonetheless that because of similar trade and border considerations, they could not join unless Britain joined. It is no coincidence that Ireland first applied for EEC membership on exactly the same day as Britain in 1961 and did not actually join until exactly the same day in 1973. And, whether they like it or not, the continued desire for an open border with the North and the continued importance of Britain as their largest European export market would cast severe doubts over whether Ireland could remain in the EU if  Britain were to withdraw. Yet only 16% of Irish exports are to Britain. Less if you excluded Scotland. More than 60% of Scottish exports however are to the rest of the UK!

So let us be clear. If Britain votes to go, then, independent or not, Scotland would need to go as well. The only thing at stake on 18th September this year is whether we would have any say on that inevitable consequence.

Notes: 1. Albeit from a slightly different perspective, @effiedeans has blogged on this same topic this weekend here Much of what she says was in my original imagined draft of this piece so I haven't repeated it for fear of accusations of plagiarism! I would however commend what she says.

2. I was assisted in some of my thinking and history by reading "Enlargement and Accession to the European Union" by Christopher Peston which can be found here

3. Throughout the piece I have referred to "England" rather than to the alternative formulation rUK. Here I mean no slight to the Welsh or Northern Irish. It is however the case that their attitude to an Independent Scotland is largely irrelevant to Scotland's potential prosperity. The continued economic goodwill of England however would be essential. I've made the point before that those who dispute that are not simply in denial of the economics, they require to be in denial of simple geography as well. That is nowhere more important to appreciate than when it comes to Scotland's ability to export. 

Saturday, 17 May 2014

An important question

Here is a question. I would like to think I have an informed political readership so I ask each of you, how many European Prime Ministers can you name?

Personally, I would confess to three. David Cameron (obviously), Angela Merkel and Matteo Renzi (even then only because I have a particular interest in Italian politics).  And that's it. I know the Prime Minister of Denmark is Neil Kinnock's daughter in law but I can't recall her actual name so that hardly counts. And I also know Francois Hollande is the most important politician in France and am sufficiently smug to also know that he is not actually the French Prime Minister.

But as for other, substantial, important, countries: Spain; Poland, The Netherlands. I haven't got a clue. I'm not even sure that I would nod in recognition if you told me.

Now, why do I admit my own ignorance? Because I suspect it is typical of even the most politically engaged across Europe. They will know their own Prime Minister; the German Prime Minister; the British Prime Minister (who I readily concede they might regard as the "English" Prime Minister) and for various random reasons a couple of others.

And were Scotland to be independent that would be our fate. For our Prime Minister to be a pretty obscure figure beyond our own boundaries. Indeed, on one view, that's the whole point of independence. A desire to be unimportant. A seat on the UN Security Council? Pah! A place at the G20? Pah! A leading role in NATO? Pah!

For, undoubtedly, important Country status has its arguable downside. Not only an opportunity to influence world affairs but sometimes an implied obligation to (at least try to) do so. And that often throws up significant dilemmas. The possession of a nuclear deterrent both in terms of cost and ethics; the sometimes narrow dividing line between liberal interventionism and neo-colonialism; the uneasy feeling when we "could" do something about some outrage elsewhere in the world but for reasons of expense or real-politik or simply lack of sufficient "botheredness" choose not to do so.

There was no better example of that over the past few weeks in the Boko Haram abduction of these schoolgirls. The British Government was faced with a considerable decision over how much pressure they should bring to bear on Nigeria and how much intelligence and military assistance they could force upon them in that process. And then about how to respond if that assistance was spurned.

Humza Yousaf, the Scottish Government's "Minister for External Affairs" had no such dilemma. He "wrote a letter to the Nigerian government" and then no doubt retired for the night full of self-satisfaction. That was all he could do. It was all he could have done were Scotland independent. Moral dilemma solved. Indeed, as the Nationalists actively aspire in relation to the future conduct of our affairs. If we just leave the World alone, they think, then hopefully we'll be left alone in our turn.

But there is one big exception to this aspired for unimportance in Nationalist mythology and that's in what happens if we vote Yes on 18th September. For then apparently the World will for the next eighteen months be at our beck and call. Not only will we be admitted to the EU but we will be admitted on a timescale and indeed terms of our choosing. Not only will the British Government allow us to join a currency union they will do so without  even asking their electorate. Indeed, Angus Robertson has even suggested they would cancel their General Election for our convenience. Not only would we be welcomed in to the NATO (expressly) Nuclear Alliance, we would be so welcome while closing that alliance's most important Eastern Atlantic Naval Base and indeed while possibly promulgating a constitution that forbade the stationing of nuclear weapons within our territorial jurisdiction!

This is of course all nonsense. But the biggest nonsense is when it comes to timescales.

All the other Parties to these negotiations will have many other, more important, things to occupy their time than accommodating Scotland.

So what if, just if, our negotiations with the EU over membership are not concluded by "Independence Day", specified in the White Paper to be 24th March 2016? What if, by then, the rest of the UK has not in fact agreed a currency union? What if the USA has insisted that the price of NATO membership is the retention of the "non-negotiable" Trident Submarine Base?

What happens then? Is Independence postponed?

Well here is where matters take a more sinister turn. There is a reason that Independence Day is scheduled for 24th March 2016, rather than, say, 24th June 2016 or indeed perhaps the entirely logical 18th September 2016.

There is a Scottish General Election scheduled for 5th May 2016.

Let's just speculate as to the fate of a Party who, by then, might have been exposed as misleading the Scottish people on the ease with which Independence: EU membership; currency union ; NATO membership would be accomplished. Who were faced with mass unemployment at the Clyde shipyards and the (formerly) Edinburgh Banks. Whose "optimism" over oil receipts had proved unfounded leading to them having to set a budget for the year ahead involving deep cuts to pensions and benefits and steep increases in personal taxation. Whose unilateral promise of an open border but a different immigration policy were belied by the customs barriers now erected by the British Government (the bastards)? What would be the electoral fortunes of such a Party?

But if that Party had as its sole raison d'etre the accomplishment of Scottish independence and were faced with a Unionist landslide before their promised land was reached?

Would they not inevitably say that on 18th September 2014 past people had voted for independence. And for that Independence to take place on 24th March 2016. The unfulfilled premises to that vote were "not their fault." Independence, without the EU; without the Pound; without NATO; without an open border would just have to go ahead. The people could vote for who they liked on 5th May 2016. The incoming Government, of whatever stripe, would be faced with a fait accompli.

This is a question to which Scotland deserves an answer. It might not be that important to the rest of the world but it is certainly important to us.

Monday, 5 May 2014

Sergei's wee sister

In Italy, football is "il calcio". THE game.

And so it is in Scotland. Tabloid newspapers are claimed to have sports pages. In reality they have football pages. Virtually every other sport is irrelevant.

It might be ridiculous; it is ridiculous. But it is, let's be honest, the truth.

We are pleased when Chris Hoy wins an Olympic Medal, or Sandy Lyle wins the Masters but within days it is back to who might be, improbably, the "Scottish Messi" or, less meretriciously, which footballer might have sung an inappropriate song at a supporters' night out.

But sometimes something breaks through our obsession with football and yet enlists the fanatical support the game provokes.

When St Mirren won the First Division in the 1999-2000 season we had a young midfield player called Sergei Baltacha. He was then regarded as a great prospect. Indeed he was a great prospect. When we played Dunfermline away towards the end of  that campaign he produced as great a box to box ninety minutes as I have seen from any Saints midfielder in approaching fifty years watching the club. At around the same time as he won three under 21 caps for Scotland.

But somehow Sergei didn't press on. Eventually he left the club and his career ended in obscurity. Who knows why that happens. Anybody who follows a minor football club knows that it nonetheless does. Those who saw Kenny Dalglish playing as a boy for Cumbernauld United might have thought him a potentially great player but the older heads among them would have thought of so many others, potentially great, who were never to be heard of again.

However, towards the end of Sergei's time with the Saints we became aware that he had a wee sister who was a bit of a tennis player. What did we care about tennis? It was a snob's game. But, on the other hand, this was Sergei's wee sister. So we wished her well.

And even after Sergei had long left the club we held her in a special affection.

So, even if she didn't know it herself, when she got to the third round at Wimbledon, when she played for Great Britain, when she met the Queen, we felt she was also playing for Paisley. For St Mirren.

And when she got to the top fifty in the world? We knew by then she was a better tennis player than, as a footballer, her big brother would ever have been. Even if he did have that one outstanding game against Dunfermline.

Thus, long after Sergei had gone, we still followed his wee sister. Whose name might finally be chanted on our terraces this coming Saturday. As it should have been chanted long before.

Today, when Stewart Gilmour, our Chairman but also, in an uniquely Paisley way, our leader, said that the whole St Mirren family mourned for her loss, we all knew what he meant. For she was the one tennis player we are ever, as an entire football club, likely to support. At least in my lifetime.

She was Sergei's wee sister. And she was taken long before her time.

Friday, 2 May 2014

A Common Plan

First of all an acknowledgement to @peatworrier whose blog earlier in the week started me in this direction and with whom I appeared on Newsnight Scotland to discuss the legal issues involved on Wednesday past.

There has been some publicity over the last few days over the stated intention of various Yes Campaign organisations to register with the Electoral Commission as "permitted participants" in the Independence referendum and thus subvert the campaign spending limits supposedly in place.

Having considered the legislation however my own impression is that, if this happens, it is likely to be more of a problem for Yes Scotland than an advantage and I below go on to explain why. In doing so I also readily admit a misapprehension of my own which caused an error in law in what I said when I appeared on Newsnight Scotland with the peaty one.

But first I had better set out the general framework surrounding Referendum campaign expenditure.

It is set out in the primary legislation, The Scottish Independence Referendum Act 2013 and particularly Schedule 4 thereto.

Essentially the broad intention is to cap what can be spent on either side.

There is an anticipation that there will be a main campaign organisation on either side, now confirmed as Yes Scotland and Better Together respectively. They are given a total spending limit of £1,500,000 each. In addition it is recognised that political parties have a special role in the process so they are entitled to spend a fraction of another £3,000,000 calculated with reference to their vote at the last Scottish Parliament elections. Thus, for example, the SNP can spend £1,344,000; Labour £834,000. Since, including the Greens in the Yes column, pro and anti independence parties more or less tied the 2011 election, the net effect is a broad equality of permitted spending on both sides.

But then we have the additional element: "Permitted Participants".

A permitted participant is somebody (an individual or a body corporate) who wishes to attempt to persuade voters to vote one way or the other and to spend more than £10,000 in the process. If they register with the Electoral Commission they are allowed to do just that subject even then to a spending cap of £150,000. Failure to register but incurring expenditure anyway constitutes a criminal offence. As does, needless to say, exceeding the cap.

The "controversy" surrounds the suggestion that various Yes Scotland front organisations propose to register as Permitted Participants and thus boost the spending available to the independistas.

Before going on to deal with this issue, I should concede that the Yes Campaign does not have a few genuinely independent allies. Like them or laugh at them, National Collective is in nobody's pocket. That would require a degree of coherence to their activities. Even more so Women for Indy, who indeed are so outwith the control of Yes Scotland Central that the Nats appear to have set up a rival Mums for Change organisation to be more on message. If NC or WfI  register and spend money they would find no quarrel from me. Indeed I might be tempted to give National Collective some dosh myself.

But, it has been obvious for some time that Yes Scotland is running a pastiche "Obama for America" campaign. They even use the same basic colour scheme. One of the features of, particularly, the first historic Obama campaign, was various groups "for Obama". Veterans for Obama; Seniors for Obama; Students for Obama etc. And one of the features of Yes Scotland has been a similar plethora of supposed interest groups either "for Yes" or "for Indy".

But the USA is a country of 300 million inhabitants. Scotland is not. So the number of actual people meeting the qualifying criteria for these groups in a country of 5 million has been limited and the problem has been solved by effectively allowing anybody to claim to be a supporter. Thus you can support "Farming for Yes" even if you don't have so much as a garden and indeed a quick look at the twitter page of "Grannies4Indy" reveals a surprising number of middle aged men among their 424 followers.

Then we have the notorious examples of Business for Scotland with its alleged 1800 members, 1740 of whom appear to prefer to remain anonymous and many of the remaining sixty who are not businesses or even business people at all. Or Labour for Indy, which was revealed by the press to be largely "SNP Councillors pretending to be Labour" for Indy and eventually forced to confess that it was not a grass roots organisation but rather an astroturf one largely funded by Yes Scotland.

All's fair in love and politics I suppose. So long as no attempt is made to maintain these are in any way stand alone organisations. They are no more independent of Yes Scotland than United with Labour is independent of the Labour Party.

But, and I accept it is a but, if they attempt to register independently with the Electoral Commission will this give the Yes side a spending advantage anyway?

Here's where the law, and the possible problem for Yes Scotland, kicks in. This is a bit boring but stick with me.

Here is paragraph 20 of Schedule 4 to the Scottish Independence referendum Act.

20 (1) This paragraph applies where— 
(a) referendum expenses are incurred by or on behalf of an individual or body during 
the referendum period, 

(b) the expenses are incurred as part of a common plan or other arrangement with one 
or more other individuals or bodies, 

(c) the common plan or arrangement is one whereby referendum expenses are to be 
incurred by or on behalf of both or all of the individuals or bodies involved in the 
common plan or arrangement with a view to, or otherwise in connection with, 
promoting or procuring one particular outcome in the referendum, and 

(d) there is a designated organisation in respect of each of the possible outcomes in 
the referendum.

(2) Subject to sub-paragraph (4), the expenses referred to in sub-paragraph (1)(a) are to be 
treated for the purposes of paragraphs 18 and 19 as having also been incurred by each of 
the other individuals or bodies involved in the common plan or arrangement. 

(3) This paragraph applies whether or not any of the individuals or bodies involved in the 
common plan or arrangement is a permitted participant. 

(4) Where a designated organisation is involved in the common plan or arrangement, the 
expenses referred to in sub-paragraph (1)(a)— 

(a) so far as— 

(i) incurred by or on behalf of an individual or body that is not a permitted 
participant, and 

(ii) the total amount of such expenses incurred by or on behalf of that 
individual or body does not exceed £10,000, 
 are to be treated for the purposes of paragraphs 18 and 19 as having been incurred 
only by the designated organisation, 

(b) so far as incurred by or on behalf of a permitted participant other than the 
designated organisation are to be treated for the purposes of paragraphs 18 and 19 
as having been incurred only by the designated organisation, and 

(c) so far as incurred by or on behalf of the designated organisation, are not to be 
treated for any purposes as having been incurred also by or on behalf of any other 
individual or body. 

Now, what does that mean? Just to clarify. A "designated organisation" is Yes Scotland (or conversely Better Together). A permitted participant is e.g. Business for Scotland. The key phrase is "a common plan".

If literature or advertising is undertaken by Business for Scotland with the consent or knowledge of Yes Scotland, or bearing the branding of Yes Scotland, then, no matter who actually pays for it, that expenditure [is] "to be treated as having been incurred by [Yes Scotland]".

And the stakes here are high. For failure to acknowledge expenditure incurred in a common plan (by either Yes Scotland or Better Together) on their eventual election expense return would leave the person signing that return facing a period in the jail.

So are the Nats really going to take that risk for a few pounds of spending advantage? Somehow I doubt it.

It seems to me instead that the legislation causes quite a dilemma for the SNP and Yes Scotland in a different way and that relates to expenditure by the SNP themselves. The SNP  will undoubtedly be a permitted participant but they do not have a separate campaign organisation. There may be Green Yes but there is no "Nationalists for Independence" organisation.

There is only Yes Scotland.

Yes Scotland on whose board sits the Deputy Leader of the SNP and which has been described by Stan Blackley, its departed full time official as "little more than an SNP front".

So how exactly is any expenditure incurred by the SNP not going to be incurred in a "common plan" with Yes Scotland? This is more than an academic point because, in that eventuality, no matter who pays the bills, all of that expenditure will be deemed, by law, to have been incurred (para 20(4)(c) above) "only by [Yes Scotland]".  So the SNP could find itself using up the allowable expenditure of Yes Scotland while struggling to legitimately access their own allowable expenditure!

This is, I concede, also an issue for our side but to nothing like the same extent. No matter what else one thinks of Better Together, it has an identity separate from the Major Parties supporting it and these Parties in turn have their own distinctive "brand" in a way which simply does not exist on the other side. Politically that might even have been the Yessers intention (although I doubt it)  but legally it is a problem.

Far be it for me to offer unsolicited legal advice but a good start would be to get Nicola off the Yes Scotland Board and replace her with someone not so obviously part of the SNP leadership. Any more advice would need to be paid for.


While on the telly as a result of a rushed misreading of Para 20 I suggested that any expenditure incurred in a common plan was deemed to be expenditure in full of both (or however many) participants in the plan. It is in terms of Para 20(2) but I had failed to appreciate the terms of Para 20(4)(c) creating an exception to that principle which applies (only) where one of the participants is a designated organisation.

Addendum (Added 3rd May).

Since first blogging this Peter Russell (@planet_pedro) has helpfully copied me in to an exchange he has had with the Electoral Commission on the potential consequence of one or other side being found to have exceeded the spending limits. Not only might those responsible be liable to criminal penalties, the result of the Referendum itself could be set aside by Judicial Review. All the more reason I think for Yes Scotland not getting up to any dodgy practices.