Escaping the Mire

Longstanding readers of this blog know what I think about the Offensive Behaviour at Football Act, and the events which led to its introduction. Alex Salmond seized on an Old Firm fracas in 2011, arguing that this so-called "shame game" required special legal measures.

Elected with a majority in the Holyrood election of that year, there was no restraining the former First Minister. He tapped unlucky Roseanna Cunningham to be the ministerial face and voice for a policy which was justified by sweeping populist rhetoric, but which was fundamentally reckless and un-thought-through.

A succession of embarrassing ministerial performances followed, in the chamber, and in the media. Kenny MacAskill sputtered "matters" relentlessly on Newsnicht. Roseanna suggested, depending on the context, that genuflecting or singing the national anthem might get you a jail term under the new rules. Unlucky civil servants were drafted in to give legislative shape to ministers' vague aspiration to use the criminal law still further to intervene in the regulation of fan behaviour in and around football matches.

Folk in parliament rhubarbed. Folk outside parliament rhubarbed.  Folk inside the SNP rhubarbed, including elected members, who nevertheless, cast their votes for the measure under the stern gaze of party whips. I remember taking to the airwaves against - now - Green MSP John Finnie. In those days, he was a Nationalist politician, and vociferously defended the legislation, accompanied by retired coppers and politically-helpful prosecutors from the Crown Office. None of this eliminated the fundamental problem with the law. 

To borrow a phrase from one of Scotland's judges, it was "mince." Certainly, the Act "sent a message" to hooligan elements who hover around football clubs and matches. But that message was as muddled and confused as the legislative provisions themselves.  Polling evidence showed - and has shown since - that the Act is supported by a majority of the public. But popularity doesn't transform a bad, paradoxical law into a good law. Being a lawyer, these problems perhaps excessively preoccupy me. But even if you are broadly supportive of the idea of prohibiting threatening and hateful speech in football grounds and outside them -- you still can't escape the conclusion that in 2011, Scottish ministers had no idea what they were doing, or why they were doing it, or why they were doing so on an "emergency" timetable. It was a picture of recklessness. 

The Act they left behind them is an appropriate testament to their cack-handedness. Getting your head around what the legislation does and does not criminalise can be tricky. That's one of the failings of the law. But it outline: it creates two new criminal offences: (1) offensive behaviour at football, and (2) threatening communications. The first offence applies in a range of locations. If you are in and around the ground of football matches, or on a journey to and from the grounds, it applies to you.

It also applies to you if you are in a public space, with a regulated match playing in the background. If you begin shouting and bawling at folk on their way to matches, the Act catches you too. There are some paradoxes about this. The law treats you as "on a journey" to a match, whether you attend, or even intend to attend a match. This even includes overnight breaks. Philosophically, we are all, potentially, on our way to a regulated football match. At least according to parliament.

But the new crime focuses on offensive behaviour. The law recognises different kinds of bad behaviour. It criminalises "expressing hatred" against groups or individuals, on the basis of their perceived religious affiliations, or on the grounds of sexuality, disability, nationality or race. This might be singing "the Famine Song," or saying "I hate the Orange Order", as you prop up a bar in which the Greenock Morton v Partick Thistle match is playing in the background.

But the law also extends to "threatening" behaviour, and  -- most controversially -- "behaviour the reasonable person would find offensive." The old common law offence of breach of the peace only criminalised behaviour which could "alarm the ordinary person" and "threaten serious disturbance in the community." The OFBA goes far further. The old offence of breach of the peace was certainly vague. Making "offence" the criterion for a criminal offence is even more problematic.

Recognising this, SNP ministers introduced what they characterised as a "safeguard." It wasn't enough for behaviour to be hateful, threatening, or offensive. In order to be punished under the new Act, it had to be "likely to incite public disorder." This sounds like a high hurdle for prosecutors to overcome. The SNP's justice team represented it as such to the Scottish Parliament's Justice Committee. But the detail of the law blew the lid from this "safeguard." 

Why? Because in the absence of any actual members of the public to be scandalised into violent disturbances by offensive behaviour, the Act instructs sheriffs to invent turbulent soccer fans or supporters who might have been provoked into violence by the offensive singing, or banners, or behaviour. The Act provides that courts should discount the fact that "persons likely to be incited to public disorder are not present or are not present in sufficient numbers." Defenders of the OBFA often claim that they are objecting about sectarian singing "in context." But the Act specifically requires prosecutors, police and courts to ignore the real context where songs are being sung, or behaviour is taking place. 

Singing the Sash in die-hard loyalist pub, for example, is unlikely to generate any mischief. But ministers were determined that this kind of - unattractive - behaviour should be prohibited by the legislation. In so doing, they made a mockery of the idea that the "public order" test was any meaningful limitation to the broad new offences created by the Act. 

So what's to be done? Repealing the Act simpliciter? As defenders of the legislation point out, what kind of message would that send to the diehard bigots, mischief-makers and trolls? And for that matter, what alternative is the opposition in the Scottish Parliament proposing? It is all very well to carp from the sidelines, but what constructive solution are James Kelly and his allies offering? Those are the Scottish Government's lines in today's spinwar. But there are a few obvious, practical solutions which the Cabinet Secretary for Justice, Michael Matheson, ought to be considering.  

In passing the Act in 2012, Holyrood gave ministers considerable power to amend the most controversial parts of the legislation.  We don't need new legislation to strip out the "behaviour the reasonable person considers offensive" provision of the Act.  Section 5 of the OFBA gives Michael Matheson the power to strike that provision from the statute book tomorrow. You'd be left, criminalising "expressions of hatred", and "threatening" behaviour.

It would be an altogether tougher spot, for Mr Kelly to defend abolishing those offences. Unless, that is, you approve of threatening behaviour in sports grounds. But the Act goes further. It also empowers ministers to draw a line through the daft provision, which instructs judges to invent potential incitees to public disorder. Again, this wouldn't require new legislation. Michael Matheson need only lay the order before Holyrood, and MSPs need only vote for it.

If the Scottish Government took both of these steps, the law would be considerably tightened. Procurators fiscal would have to establish (a) hateful or (b) threatening behaviour, and beyond that, they'd also have to establish that behaviour was "likely to incite public disorder" in the real context in which it takes place. That is a far higher test for prosecutors to satisfy, and doesn't transport our sheriffs to a fantasy land of invisible, touchy Queen of the South fans, or furious Dons, tired of unsubstantiated allegations of sheep-shagging.

If these reforms were introduced, in a trice, the Scottish Government would have eliminated the Act's most controversial (and badly thought-through) sections. The temperature would be turned up considerable on the opposition -- some of which is principled, but a good part of which is calculating, shallow and partisan. 

There is no shame in admitting you got things wrong. It was a bad Bill, introduced after a bad process, badly defended and badly enforced. To a significant extent, the outgoing FM must bear the burden of having foisted this inconvenient controversy on his successor. But there are obvious opportunities here for Nicola Sturgeon's government to revisit its errors, to make the law better, and to turn up the heat on their opponents.

As things stand -- the Scottish Government seems confident it can win the PR battles against James Kelly and his allies. It seems to have given scanty thought to reform, and to seizing the initiative from the serried ranks of their opponents. They seem primed to stare defeat in the face, but well-prepared to grouse about it. But for this critic of the legislation, they can do much, much better than that. They said they believed in this measure. Let them fix it. If they don't take these opportunities, they have only themselves to blame.

The sentimental European

Purists hate the politics of the big coalition. This much seems uncontroversial. Divide a country - any country - of sufficient bigness, richness and complexity into two massive tribes, and you form uncomfortable, often incoherent coalitions. You quickly find folk vote your way for reasons you disagree with, and worse, which you disrespect. You find people you think of as your political fellow travellers voting for the other side, because some detail -- piffling to you -- torments them, some wrinkle in their soul, a different perspective. 

Purists also - in their bones - hate the cynicism of political campaigns.  It isn't my reasons for believing in Brexit, or supporting our continued membership of the EU that matters. Not to the instrumental activist. What matters is the arguments and reasons which might convince you, rather than those which convince me. And if I happen to hve an unpopular ideosyncratic view, unless I can bracket my own sentiments, unless there are a lot of people who share my outlook, I can't be an asset to your cause.

On the 18th of September 2014, I spent much of the day standing outside a kirk near Queens Park, Glasgow. The area was Yes inclined. It was a pleasant -- but doomed -- way to spend the day.  I'll never forget the woman who left the polling station, buoyant. "If we vote Yes, we automatically leave the EU" she said, having swallowed the Better Together line, hook and sinker. When she bounced out into the balmy afternoon, she had cast her Yes ballot. There was no use remonstrating, no use suggesting she'd misread the arguments of reached a - truly perverse - conclusion based on the two campaigns. I waved, dumbly, as she toddled down the street, having put up token resistance to her analysis. It wasn't worth it: her ballot was in my pile.

The EU referendum has brought out the awkwardness of the big coalition in spades. Pro-European Scottish Nationalists have watched a scorched earth economic case, orchestrated by the same folk in the Remain campaign who assured us that Scottish independence would result in an economic crucifixion. It has not been compelling. On the other side, eccentric - perhaps - but good-hearted, unbigoted leave campaigners have found themselves aligned with an often odious campaign, with which - I am sure - many would rather having nothing to do in any other circumstances. As I say: big coalition politics is difficult. It is often uncomfortable. It often feels a little dishonourable. And it makes for strange, incoherent coalitions. 

It is important to understand and scrutinise both campaigns - and both arguments - in this light. Different arguments will convince different people. There is no necessary hypocrisy in this. I would encourage you to vote Remain tomorrow. But the reasons which persuade me may not be reasons which persuade you. Some other advocate -- on either side -- may more effectively speak to your concerns than I can. Heed them. Follow your own best judgment. We are large. This is a country of several million people. Domestic politics is still diverging in the home nations. We contain multitudes.  

But speaking solely for myself: the European ideal still seems to me a noble one. The academic world is full of European citizens. I am surrounded by folk who live here, love here, work here, labour here, raise and educate their children here, because of the free movement of people. In the 2014 referendum, European citizens voted on the constitutional future of Scotland because -- at its most simple -- they are part of us. They choose to live here. They persevere here. They have their pleasures and their pains here, their friends and enemies. They have sparkling evenings, and dull times, they share laughter and kisses and rows and sorrows. They do precisely what the rest of us do. You may say this is sentimental. Very well: it is sentimental. But quietly, undemonstratively, this decision was one of the noblest things the SNP has done in office.

I cannot look at these people in the eye tomorrow - these colleagues, these allies, these friends - and vote to Leave the European Union. Unlike Jim Sillars, I cannot and I will not prosecute my indyref feuds with the European Commission and European governments by turning a cold shoulder on my comrades, who are part of us, who live with us, whose children are our friend's children, who elaborate Scotland and Britain's still largely monochrome tapestry.

They are immigrants and emigrants, just as Scots have traipsed across this globe for centuries, inflicting their lousy patter on the peoples of the world on the banks of the Hudson, in the scorching territories of Australia. They are people -- people who I have watched suffer, largely in silence, through this referendum. Tomorrow too, they will be silent in the ballot boxes, their votes missing. But one of my Dutch friends, who has lived in Britain for fifteen years, put it horribly starkly. "I will never forget the headlines. Stay or go, I will never look at you the same way again."

I believe that Scotland has a European destiny, inside the UK, or outside of it. For me, this is existential. Despite the slurs and the sallies, the wits and the wags and the denigrators, ours is not and has never been a separatist movement. I have no interest in narrow nationalism. Too often too isolated in this debate, the leadership of the SNP has forthrightly made the case for immigration, uncowed, unbend, courageously. They are to be commended. Alex Salmond recently put it well in the Oxford Union. We know being involved in mankind is nothing to fear. We know that the lean sphere of sovereignty is a boyhood fantasy. We aren't afraid of negotiating, even negotiating hard-headedly, in our collective interest. We abjure easy solutions to complex problems. 

Confident people -- truly confident countries -- do not hirple through their collective lives, cramped and shivering. They do not go into the darkness of the future with fear. They are emboldened by their own best traditions. They are fierce friends. They don't cringe.  They see opportunities, more often than they tremble. As a Scottish Nationalist, I am soaked in pessimism about the United Kingdom. This much you know. But this is a land with a better tradition which tomorrow will be weighed in the balance. I have no confidence about what the result might be -- but I know this. 

Despite my long-standing pessimism about the UK, I'll be exiled to the doldrums of unhappiness on Friday, if Britain crashes out of the European Union. The bottom will - once again - be speared out of what I thought was a bottomless bucket of disappointment with Britain. This may seem perverse. You are right. The force of those multitudes again, I suppose. But in my bones, I'm an optimistic soul. I remain a Scottish nationalist with regrets, still somehow stubbornly attached to the possibility of a better Britain. It will be a painful to discover my most harsh suspicions about this union are true. I'm not trying to be cute. I will be horribly unhappy to be confirmed in my prejudices.

Tomorrow is one of those days in our history which will try Britain's soul. It is difficult, even to begin to calculate the consequences of a vote to leave. Yet I cast my ballot, more in hope than expectation. And I cast it for my friends, sentimentally perhaps, but unrepentantly, a European.

Just how solid is Scottish Labour's list vote?

Amid all the process and horse race stuff in this Holyrood election, there is one rather important question going conspicuously unasked: just how solid is Scottish Labour's list vote anyway? 

All the mischief has focused on the loyalty of folk likely to vote SNP in the constituencies. Will they stick with "Nicola Sturgeon for First Minister", or split their tickets, lending support to some other party for the regional calculation? This is all well and good. But the endless, circular conversation about the virtues and vices of #BothVotesSNP overlooks the fact that it is Kezia Dugdale's party whose fate will largely be determined by the d'Hondt calculations and the weight of support she can command on the regional ballot. 

And Scotland's electoral history being what it is, I wonder if Scottish Labour aren't more vulnerable to - potentially catastrophic - leakage in regional support than we've generally noticed. As countless commentators have pointed out, for years, in the wake of devolution, Labour didn't have a second vote strategy - they didn't need a second vote strategy - being comfortably returned to office on the back of the first-past-the-post constituencies and their reliable confrères, the Liberal Democrats.  

In this model, if Scottish Labour's electoral fortunes were to improve, you'd expect this to express itself in constituency gains rather than regional progress. But if the Holyrood map broadly follows Westminster's this election, the whole basis of Labour support will have been rearranged on a regional basis. In fairness, Scottish Labour are pushing their own #BothVotesLabour message. I'm sure old time Labour supporters who have stuck with the party will heed this and maintain a disciplined ticket. But the party aren't going great guns with the message. Which seems a decidedly strange thing, considering how critical a solid, loyal regional ballot is for the party's standing in the next parliament. 

Look at this historically. Take 2011. Alex Salmond's SNP secured 902,915 constituency ballots, and 876,421 in the regions. We shouldn't understand this as a straightforward 26,494 drop. The regional tally will include a decent whack of folk who voted for other parties in constituency contests. My favourite 2011 illustration of this dynamic was Ayr. A straightforward SNP vs Tory runoff, Conservative candidate John Scott secured 12,997 constituency votes, and a 1,113 vote majority over his SNP opponent. But in the region, the folk of Ayr gave the Tories only 8,539 votes, a drop of 4,458 on their constituency figures - and the SNP were the obvious beneficiaries of the Tory regional slump. Chic Brodie took 11,884 constituency votes, but Ayr's regional tally gave the Nats 14,377, an increase of 2,493 which put them 5,838 regional votes ahead of the Tories who'd routed their constituency campaign.  

So what about Labour? In 2011, Iain Gray took 630,461 constituency papers and just 523,559, losing over 100,000 votes between ballot papers. Like the SNP picture, we shouldn't oversimplify what was going on under Labour's grand totals. It almost certainly wasn't a tit for tat drop. Voters will have moved in, and out of, Labour's constituency and regional columns. But this was a discernibly squishier performance than the Nats in a closely contested campaign. In the event, Labour holds in constituencies in their traditional heartlands staved off some of the harsher consequences of this "voter promiscuity" in 2011. But if all does not go well for the party in its constituency battles in Glasgow and elsewhere - a gap of anything like 100,000 people is seriously going to hurt. And this, before we get into questions of differential turnout.

Part of me wonders if the electoral map in 2016 doesn't encourage an awkward dynamic for Kezia Dugdale, likely to encourage opponents of the SNP to lend her their constituency ballots, while distributing their regional votes elsewhere.  

Imagine you are a Labour voter of what we'll call the Alex Massie tradition. You voted No in 2014. You don't much care for the Nats. You live in a constituency where the Tories or the Lib Dems cannot prosper, where they're not even in the running. What do you do? Option One: damn the arithmetic and vote for what you believe in. If the local Tory or Liberal Democrat gains only a couple of thousand votes? Well, you salute their efforts. Alternatively, you might consider Option Two: use your constituency vote tactically vote for the Labour candidate most likely to frustrate the SNP. In Leith, say, you might support Lesley Hinds. In Glasgow, you might take a punt on Johann Lamont against Humza Yousaf. 

If Option Two seems attractive to you, however, there is a snowball's chance in hell that you're going to stick with the Labour party in the regions. You might also have a soft spot for one of the smaller parties who are only really in contention in the regional list. Perhaps you favour Brexit, and want to see a David Coburn, rolling around Holyrood, blaggarding the European Union. Perhaps Patrick Harvie seems like a sound character, and you want a decent Green delegation in Holyrood, advocating environmental concerns.  In local elections in areas in which they do well, the Greens are pretty transfer happy from a curious range of sources, including Scottish Tories. Perhaps you'd like RISE, modestly, to rise.

Given the parts of the country where Labour remains strongest against the SNP, I'd suggest the calculating anti-Nat and the floating, unpartisan, split-ticket voter is far more likely to cast a - perhaps doomed - constituency ballot for them rather than the vital, life-giving regional support Dugdale needs to survive. In fairness, recent polls suggest Labour's performance across the two ballots is pretty solid, at a (dismal) 18% to 19%.  A squishy list vote may be the least of her concerns. Time will tell.

WANTED: Scottish Nationalism with a head as well as a heart

The 2014 referendum was a premature confrontation between Scottish Nationalism and its ambitions. In a long campaign, Yes Scotland managed to achieve something remarkable. The Yes campaign was defeated and defeated handily, but support for Scottish independence roared into the mainstream of political opinion. Even victors are by victories undone. Short term advantage is sometimes bought at the expense of a disaster tomorrow. The Better Together campaign is a case study in the perils of short term thinking. 

Last Friday, we observed the aftermath of a stricken Scottish Labour Party, sinking beneath the waves, demasted in the crosswinds of political opinion, hull bust, lifeboats swept away, leaving a sole survivor in Ian Murray. Now the ship's skipper has finally done the decent - and probably necessary - thing, leaving the battered boat directorless and directionless heading into the long campaign for Holyrood in 2016. For the partisan SNP supporter, a squirming feeling of schadenfreude may attach to Labour's immediate challenges, but we must continue to take a longer view as the People's Party are gripped by their own internecine conflicts and disputes. 

The brutal fact remains -- if we held another independence referendum today, tomorrow, next week, next month, or next year -- we would still be defeated.  Scotland is not awash with people feeling buyer's remorse. The poll wasn't fixed. The anxieties which delivered a No majority on the 19th of September have not been answered. The doubts of the folk outside the enclaves that supported independence by a majority - Clackmannanshire, Aberdeenshire, Perthshire, the Highlands - have by no means been allayed.  

Any indisciplined rush into a second referendum can lead only to disaster.  Exuberance in the wake of an exciting General Election campaign, I can understand -- but it must be checked and scrutinised cold-bloodedly. I would suggest that that scrutiny urges only one conclusion: the fundamentals are still agin us. Vital, it may have been, stimulating and new. But we must be honest with yourselves: on too many issues, the intellectual case for Scottish independence was never won in the long referendum campaign of 2013 and 2014.

One of my long lasting anxieties about the 1998 devolution settlement has been the kind of politicians it would produce. As a party which has rooted and grown in Holyrood since the turn of the century, the SNP has historically been particularly exposed to the limits of devolved thinking. A national parliament with an important range of powers, but one shorn of responsibility for economic affairs, for monetary and international affairs, defence and welfare.  For the unionist majority in the Smith Commission, the problem with this set-up is the lack of "responsibility", connecting decisions on spending with decisions on taxation. But for an independence-supporter trying to take a longer view, the issues are different. 

Devolution risks producing politicians with attitudes towards a great swathe of state policy which is at best intellectually underdeveloped and at worst empty oppositionalism and sloganising. These "big things" become someone else's problem. This attitude may cut the mustard in the forgetful ordinary run of politics. In the compressed formats of telly and radio, your spokesmen will find things to say, outraged soundbites to coin, but a slogan is not a policy. 

Slogans may work day to day, but they are bound to be seriously shown up in something as fundamental as a long referendum campaign. By no means am I suggesting that the SNP is the vacuous party of empty protest its opponents sometimes suggest -- but these reserved areas have often been our weakest suit. There is no shame, and no downside, in being frank with ourselves about that.

Take one example. You can understand the thinking behind the White Paper's currency policy. Folk wanted to keep the pound. The focus groups urged it. So the Scottish Government decided to back it. But in practice, the policy amounted to giving your deadliest enemy a loaded revolver and saying, "please don't shoot me with this". The rest is history. Osborne pulled the trigger. Salmond foundered in the first debate with Darling. Credibility was never demonstrated or gained. We lost. I could go on.

The election of the 56 is no mandate for independence, or even another referendum, but it is a remarkable opportunity to begin working quietly on these tricky fundamentals and to resist the narrow field of policy vision which devolution sometimes encourages. The Short Money is flowing in, up from a modest £187,000 to £1,200,000 a year, excluding any additional party levies on the new MPs' salaries. That is a formidable war chest which the SNP must put to work in pursuit of its short and longer term aims.

The intellectual, technical case for Scottish independence must be strengthened in the longer run if it is ever to be won. The target is moving. The issues are not static. But if -- when -- a second referendum comes along, we now have no cause and no excuse to run a campaign which is vulnerable on critical questions of reserved policy. Tough choices will, inevitably, have to be made and policy battlefields selected. But for the first time in its history, the party now has a formidable Westminster machinery and staff, scrutinising the reserved issues, with resources to think fundamentally about its approach to central issues in the economy, and choices in monetary policy and regulation, defence, welfare, international affairs.  That's an opportunity which cannot be squandered.

Nicola's Assumption

Is the SNP campaign of 2015 the mirror image of the campaign Scottish Labour wanted - and thought it was running - in 2011? Unconvinced? Appalled at the apparent illogicality of the proposition? Understandable, on the evidence -- but please bear with me. 

Over the last few days, I have been struck by the unexpected similarities in the logic of the two campaigns. The one a calamity - the other a seeming success - but both effectively rely on mobilising similar feelings and logics in the electorate. Where Scottish Labour crashed and burned, the SNP look likely to net a healthy share of Westminster constituencies. Certainly more than the six we managed to secure in 2010. 

By 2011, Scottish Labour had admittedly shed two leaders and acquired a third. This was unedifying, messy, and characterised by its awkward marches and countermarches of policy. But the polls were initially friendly. In 2010, from Gordon Brown's bloodied and defensive crouch, the electorate had handed Labour a stonking victory. The Nationalists were confounded. Our ghastly "More Nats less Cuts" slogan had all the ferocity of a butterknife. The "local champions" riff -- a dud. The punters weren't listening, and backed Broon in the face of David Cameron, and his allies in the reactionary media. 

It was a cruel misdirection on our part, appealing to the lizard brained part of the People's Party, which told them that their current predicament in Holyrood was like an April shower -- soon melted, evanescent. The sturdy old oxen logic of tribalism, loyalty, and dogged adherence to the cause would soon revive. The people would repent of their error, and return. They would, as Margaret Curran said at the time, "come home to Labour", sheepishly, prodigal, but forgiven their trespasses. The old benedictions - interrupted but not forgotten. 

In my experience, the best way to lie to people is to tell them something which they desperately want to be true. And Scottish Labour seemed only too delighted not to collapse into any self-reflection, and to tell itself these gentle, convenient stories about the predicament which Jack McConnell had blundered into. 

After the narrow forty-seven to forty-six face off with the SNP in 2007, Iain Gray led his party into the Holyrood election on a platform of minimal difference. If the SNP wanted to freeze council tax? So do we (only slightly less so). The abolition of tuition fees? That too is here to stay. We're on students' side. Extra polis? A national boon. We won't reduce the numbers. But just think -- just think -- how much you would prefer to hear these policies from a Labour minister for finance, under a Labour first minister? 

Your deid grandpappy would be proud. His grave would have no occasion to birl. The natural order of things would be restored. Labour's policy distinctiveness in 2007 came down to an uncosted, illiberal, irresponsible plan to introduce mandatory prison sentences for everyone caught in possession of knives. But at its core -- it was an SNP manifesto, reframed in a Labour voice. This is not interesting in itself -- but it is telling about how Labour strategists thought about the electorate they thought they were appealing to. They recognised the allure of a number of "big ticket" items in the Scottish Government's first budget, but assumed that, given a contest, people would prefer hearing these policies from a Labour First Minister, cabinet, and Scottish executive. 

The assumption was that -- by borrowing the SNP's clothes, with an admixture of old Labour tribalism and loyalty -- the electors would come flocking back to the People's Party, remember the old hymns, and vote as Donald Dewar once intended. They judged folk wanted to back them. The unholy aberration of 2007 would be upended. The hated, temporary regime would be consigned to oblivion, and the old order would be restored. Difficult questions need not be asked. Fundamental change in the organisation was unnecessary. It was a quirk of the numbers and, as Euan McColm recalls in today's Scotland on Sunday, a few iffy, wet ballots from Arran. 

It's always tempting to compare Scottish Labour to the Bourbon monarchs of France, and their ideological hangers on and adherents. As the old snake Talleyrand once said, after their decapitation and dethronement, "they had learned nothing and forgotten nothing". There is something strangely of the west of Scotland, Labour municipal cooncillor or parliamentarian about the portly, self-assured and slightly glaikit figure of King Louis XVIII.

As is so often the case, it is our unquestioned assumptions which eventually get us crucified -- and the central assumption of  Gray's 2011 campaign proved faulty. There was the sandwich shop, of course, Gray's own limitations, and a shaky statistical basis for the knife policy -- but it was the assumed allegiance and the assumed preference for a Labour government in Holyrood which proved devastating. It turned out that the Scottish electorate of 2011 had learned to disregard their fealty to the ancien régime. They looked at Gray, and at Salmond and Sturgeon, and found they preferred the SNP incumbents they had only very modestly backed in 2007. Like his campaign, Gray's assumptions imploded.

Scottish Labour's 2007 manifesto was defined by their opponents. 2015's SNP manifesto could only have been published after Labour's 2015 proposals. It calculates, with caveats, that the SNP is now regarded as better placed, and better trusted, to realise and extend these aspirations than the UK Labour party. The 2015 SNP campaign effectively reverses and pursues Iain Gray's 2011 logic. 

Of course, the parallels are not exact. The context is different. One some very big ticket items - public spending, the constitution, and Trident - the SNP is seriously at odds with Labour. The referendum has also helped to create a different, broader constituency for Nicola's message and a constituency which is justly vexed with Labour, its performance in office before 2010, and its often cautious and uninspiring performance in opposition since. But at bottom, the First Minister is now exploiting a logic of minimal different with her main opponents in precisely the same way in which Iain Gray hoped, in 2011, to lead Scottish Labour back into Bute House.  

Only Thursday night and Friday morning will tell us whether Nicola's judgement -- that the Scottish people would now prefer to take this old social democratic medicine from her lips -- will be vindicated.  

Incoherent, illiberal and ineffective...

During its bumpy and frequently unedifying passage through Holyrood, I made no secret of my hostility towards the Offensive Behaviour at Football legislation. The Act is a boorach, in principle and form. The law has - rightly - been slagged off as poorly drafted from the bench. One learned sheriff, in the language of the butcher's shop, dubbed it "mince". The football offences are woolly, imprecise, and difficult to understand.

This has implications for attendees on the terraces - but also to anybody in transition to and from regulated matches - but also extends to anyone in a pub, with the game quietly rolling in the background. And for police officers, and prosecutors, pondering how to apply the law to particular cases. What might a "the reasonable person find offensive"? A Palestinian flag? A Che Guevara T-shirt? A poppy? A shirt slagging off poppies? A Yes badge? But matters get even grimmer when it comes to the second part of the Football Act's offences. The Crown have to demonstrate, not only that the behaviour could offend the sensibilities of the reasonable person, but that it was capable of "inciting public disorder". 

During its passage through Holyrood, this was dressed up as a safeguard for punters, but as the High Court has demonstrated, it is nothing of the kind. In the absence of any actual people inflamed to mischief by remarks or shirts or songs or chants, the Act requires the court to invent imaginary mischief-makers. The sheriff must conjure fictional, potentially unreasonable, incitees from the the ether. If no North Koreans are conveniently on hand trash the place, thin-skinned patriotic and muscular wreckers are to be invented - and the accused held responsible for their equally imaginary public disorder. As Lady Paton observed:

"Thus, the Act distinguishes between, on the one hand, "a reasonable person" and, on the other, a person "likely to be incited to public disorder". It may be that a person likely to be incited to public disorder is of a more volatile temperament than a reasonable person or, to use the language of the sheriff, an uninitiated member of the public. The person likely to be incited to public disorder may have particular interests and particular knowledge. He may have particular views about the two songs in question or those who sing them."

In short, the court must invent a whole cast of touchy, grievance seeking, conspiratorial, irrational figures, and ask whether they might kick off in response to the hapless accused's conduct. This is madness. And if the recent statistics from our criminal courts are anything to go by, remarkably ineffective madness.

According to statistics released at the end of last year, the legislation has been an unprecedented calamity for Scottish prosecutors. First, a little context. The conviction rate for rape in this country has been reckoned a scandal. Across all offences - theft, fraud, murder, assault - the average rate of conviction is 87%. For the past few years, the rape conviction rate in Scotland hovered under 60% of cases brought to court by the Procurator Fiscal. Although not much discussed just before Christmas, the conviction rate for rape charges taken to court in Scotland took a massive dip in 2013/14.

Of the 214 people prosecuted, only 87 - 41% - were convicted. Why? During 2013/14, more people were prosecuted for rape in Scotland, but the number of individuals convicted did not increase significantly. With the corroboration debate unresolved, the 2013/14 figures should remind folk - there's a yawning gulf between (a) more people being prosecuted and (b) a greater percentage of people being convicted for sexual offences.

So what about the offences created by the new football legislation? According to the government figures, conviction rates for Offensive Behaviour and Football complaints and indictments are - remarkably - low. Of the 154 folk prosecuted for football-related offences, a stonking 74 were acquitted. That gives us a parlous conviction rate under the law of 52%. The overwhelming majority of these acquittals will be from sheriffs - from professional judges - not juries. This stinking conviction rate can't be blamed on the paradoxical conclusions of the Airdrie jury, or the partisan, Old Firm panel of fifteen ordinary punters. It speaks to the vices of the original Bill that was rushed so loyally and so inadequately through Holyrood.

Under the Offensive Behaviour Act, the Scottish Government is obliged to report on the operation of the legislation by the end of 2015. On the evidence, all does not augur well for the Scottish Government. These football laws were a classic essay in the worst political instincts of our late First Minister: sketchy, defensive, only half thought through, a pompous mess, hazy, made on the hoof. Alex Salmond had the cunning to dump the duty on Kenny MacAskill's desk, who aped his boss by abandoning poor Roseanna Cunningham to make the case for it in public.

Now, years on, this incoherent, illiberal and ineffective piece of legislation is Nicola's stress headache.

A party of government of women, by women, for women

The first woman was admitted to the Faculty of Advocates on the 13th of July 1923. Margaret Kidd KC, as she would become in 1948, was also the first Sheriff Principal in the land, appointed in the borders in 1960. For many years, Kidd ploughed a lonely furrow for the sisterhood at the Scottish Bar. The second woman, former Scottish Express journalist Isabel Sinclair, did not join Kidd until 1949 - some twenty-six years later. By 1985, the year before I was born, only thirty-one women had been admitted to the Faculty in its entire history. 

The daughter of the Unionist MP, Kidd was a lady of conservative temperament, despite her path-breaking career. It was said that she insisted being addressed as "my lord" on the bench - a practice which would make the most unbashable advocate of the present day cringe. Sinclair was a different character. Bolshier, more colourful than Kidd, she insisted on being addressed as "My Lady" when she became Scotland's first female sheriff-substitute. 

It was not, perhaps, the most radical blow for gender equality ever struck. It lacked the panache of the late Clarissa Dickson-Wright who, as a young barrister, gate-crashed a male-only gathering of her peers wearing a bear costume. But it marked the normalisation of women's participation in the legal profession and in judicial roles. It was finally time to let Portia be Portia. 

In politics, Margaret Thatcher didn't exactly ask her ministers to address her as "my lord", but her premiership echoed Kidd's legal career. Never entirely "one of the boys", but the solitary woman making her way. Conservative by impulses, comfortable amongst men, and largely uninterested in extending a helping hand to other women to aid them to surmount the ladder she climbed. You sometimes encounter similar views amongst the new generations of young lawyers and politicians, who wrinkle their noses at the idea that feminism has any contemporary resonance, and who baulk at making a big thing about gender politics.  

A couple of years ago, when I lived down south, I met a new-minted Conservative MP. Elected to the Commons in 2010, she was adamant that she would do everything in her power to resist being seen as in gendered terms, as a woman politician. I asked her an open question about the experience of the notoriously male-dominated lower house.  I was struck by what she said, and loosely paraphrase from memory. 

"When I was elected, I knew I didn't want to be associated with any of the usual soft, women's issues. Childcare. Domestic abuse. That kind of thing. I put in for the tough economic committees. For home affairs: crime, terrorism, prisons, drugs. That sort of thing." For her, the personal was not political. To talk about gender in politics was embarrassing, not emancipatory. It was to lose sight of the person. 

When it became clear that Nicola would replace Alex Salmond as First Minister, I wondered how she'd play this, as play it she must. Would she, like the young Tory parliamentarian, seek to soft-pedal the significance of her gender? Would she too flee from an explicitly gendered policy agenda? What was striking - even startling - about the tenor of Nicola's opening statements in post was the explicit, powerful, front and centre emphasis she placed on gender justice, equality and the empowerment of women.  

The glass ceiling, shattered. A gender-balanced cabinet, appointed. And a strong message sent "to girls and young women - indeed, to all women - across our land. There should be no limit to your ambition or what you can achieve." In an affecting moment, Sturgeon gestured towards the gallery in Holyrood, to a small, blonde, smiling face.

"My niece, who is in the public gallery today, with her brother and her cousins, is 8 years old. She doesn’t yet know about the gender pay gap or under-representation or the barriers, like high childcare costs, that make it so hard for so many women to work and pursue careers. My fervent hope is that she never will - that by the time she is a young woman, she will have no need to know about any of these issues because they will have been consigned to history. If - during my tenure as First Minister - I can play a part in making that so, for my niece and for every other little girl in this country, I will be very happy indeed."

You can't imagine Maggie saying that.  The force of the message reached even Chris Deerin, a father of daughters and not the SNP's most devoted fan, in a lovely piece.  Much was made over the referendum campaign of the gender gap in support for independence. But such the gender gap is not new, and is not limited to the referendum campaign. The SNP too has historically struggled to win the support of women. 

On the constituency ballot in 2007, 41% of men supported the SNP, compared to only 32% of women voters. On the list, 35% of men voted for the SNP, but only 27% of women.  The polling evidence from 2011 is inconsistent, but suggest that the party managed to bear down on the gap, to win its historical majority in Holyrood. 

The whys and wherefores of this gap has been the topic of considerable speculation but little study. Was it Alex Salmond? There's really not an awful lot of evidence that it was. Certainly, Salmond was less popular amongst women than men, but still recorded positive ratings from Scotland's women folk. Something else? Mitchell and Bennie concluded that fewer women backed the SNP because fewer women backed independence. QED. 

On Nicola's appointment, and since, the Scottish press have been much exercised by the question: will she lead the SNP in "a lurch to the left"? More interesting, it seems to me, is her clear intention to find a new formula for a successful, gendered Nationalism. The lessons of the 2014 campaign are categorical. Scotland will never - ever - achieve its independence unless more women can be persuaded that a better future awaits them in an independent country. That will be long, hard work. And work worth doing, independence or no. 

The new First Minister has a rare opportunity: to transform the SNP into a party of government of women, by women, for women. All power to her. 

From beyond the grave...

Pack up your ghouls and your bogles, your Angry Salmond costumes and your terrifying Jim Murphy masks: Halloween, it is passed - but something else stirs from beyond the grave. It took its last breath at the end of June 2014 - but after being buried in the #indyref interregnum - the For A' That podcast is back on its feet and clawing through the clod, crying "brains, brains." 

For episode 46, I joined Michael Greenwell - as ever - and a brace of frumious Aberdonian cybernats in Gillian Martin and Doug Daniel - to chew the grey matter and and ponder the post-indyref zombie apocalypse, more than a month on from the fateful day, under its low sky. 

On today's menu, the surge in memberships of independence supporting parties: what does it presage? Is a Yes Alliance, a dominating part of the SNP deputy leadership pitches, a viable, desirable or effective political strategy? And which of the three candidates - Constance, Hosie or Brown - is to be preferred? Do we want a balanced ticket? Would it be helpful, in the coming conflict to have a Westminster-based deputy? Or would it send a powerful and desirable message to have two women leading the SNP? 

Over on the red benches, what are we to make of the tribal conflict in Scottish Labour, and which of the three would-be chieftains will drub their opponents and come out on top? And is Murphy really the credible, winning figure much of the press has painted him out to be? You can lend the show your lugs here.

Alternatively, you can download the show directly here, listen to it online at its web page or subscribe via iTunes.

She's not up to it

The Normandy Hotel in Renfrew, before the referendum. The Pakistan Welfare dinner. The Vale of Atholl pipe band have filed out, having smashed out renditions of the Flower of Scotland and the national anthem of Pakistan. The room is thronging with respectably dressed folk, the men abuzz with handshakes and gossip, the kids on their best behaviour, the tables piled high with iced lassi. The minutes tick by slowly.

Proceedings run long, and are punctuated by long breaks during which this conviviality boils over, chairs and tables abandoned. An officious major domo in a red coattee and medal, loosely - and with mounting irritation - structures proceedings with booming passive aggression. When the crowd are finally persuaded to sit, a visually-impaired young man recites a verse from the Koran from memory. We hear a touching remembrance speech from the son of a recently-departed stalwart of the organisation. The Pakistani ambassador reflects on the ties binding Scotland and his country. The room is ecumenical, but chock full of politicians and senior state functionaries of every political hue. 

The top table - indeed the whole room - is crammed with familiar faces. Alex Salmond, Nicola Sturgeon, wee Willie Rennie, Tory Deputy Jackson Carlaw, the Lord Advocate, a deputy chief constable, a smattering of councillors and a wealth of parliamentarians, mainly Labour and SNP. Humza Yousaf glad-hands about wearing a splendid sequinned coat you imagine his mammy bought him. Anas Sarwar works the room like a greased octopus. Almost all of the other politicians - at least those with a sparkle of charisma - do likewise. Nicola moves assiduously from table to table, looking both elegant and appropriate in a pale salmon shalwar kameez. Although perhaps not gregarious by disposition, Sturgeon has diligently acquired the social and political skills. But for the odd flicker of self-consciousness, you'd never guess she felt at all out of place, operating against type.

But look. Up there. On stage. A small, still figure wearing a fixed rictus smile that doesn't quite reach her eyes. You might guess at a sort of loneliness alive in her as, immobile and with searching eyes, she looks out across the babbling mass of sociability. And she doesn't join in. As someone with a thick vein of inadequacy in my own temperament, I recognise the tension which comes from feeling that you ought to do things which don't come entirely naturally or comfortably, when you hesitate, and miss opportunities you know you should take. It is ghastly, paralysing. You feel useless, utterly useless in the pit of your belly.

Her speech is respectable, the delivery workmanlike, if not inspiring. Others catch the mood more deftly. Even Jackson Carlaw, who keeps things short, direct and self-effacing. The sense of the lady's overwhelming shyness is brought home even more powerfully in one of the dinner's many breaks - as enthusiasts waylay Alex Salmond for a blether, or a photograph. He looks in his element, holding court, seemingly inexhaustible. She, by contrast, creeps around the big hotel room ignored, quietly, awkward. As soon as possible, she disappears into the night under a floral umbrella, as the rain begins to fall. I doubt many - maybe any - hands were shaken. The set piece speech was fine, the script written; but pressing the flesh was a terrifying chore which she never really attempted.  

I have an inexplicable soft spot for Johann Lamont. Or maybe it's a misplaced sense of pity. It is easy to like people's harmless vulnerabilities, and she strikes me, first and foremost as a self-conscious sort of person, with a thin skin, and a brittle sense of self underneath it. It's never a pretty thing to see a human personality, pinned to the PR rack, being pulled into strange and unattractive shapes by the perceived demands of the political personality being constructed for them. But with the now-departed Paul Sinclair working the winch and tending to the ropes, the leader of the Labour Party in the Scottish Parliament has been transformed into a ferocious, non-nonsense, belligerent personality, punctuated by long, soothing spells as the invisible woman. 

You can imagine her pulling a cheeky child up short, telling them they'd never amount to anything in life. I'm not saying she did. I hope she didn't. But that is this kind of unlovely, discouraging teacher which Lamont has made her public persona, or been made into. It is difficult to imagine that Johann's teaching career left behind it a wealth of students who can say that she bulldozed through her classes like a knifegrinder – seeing "the dull minds scattering sparks of themselves, becoming razory, becoming useful", as Norman MacCaig once wrote In Praise of a Man. That's an opportunity missed. 

The disastrous thing is, there is no gravitas to any of this. Her latest relaunch speech - wittily described by one of my crueller followers on twitter as "cargo cult Obama" - is an ungrammatical mish-mash of rhetorical tropes and meaningless drivel. Whoever composed it - and part of me fancies this might be from the desk of Lamont herself - seems to think that the essence of uplifting rhetoric is combining the same words in as many different senses in a single sentence as possible. Hence the sub-Blairite payoff: "We can have any number of Scotland Acts - Scotland will improve when Scotland unites and all of Scotland acts and that is the challenge." It is a kind of pastiche of eloquence, to be uttered with feeling, in pert, verbless sentences, but it is emotionally and politically vacuous. 

Much of the recent gossip around the parliament has focussed on Lamont's longevity. Will she survive till 2016? And who could take over from her anyway? She hasn't taken out Jim Murphy at the knees, but after the referendum result, she seems to have acquired a more resolute gleam in either eye. It is as if a small, flattering voice has stolen from somewhere in her skull, "I've seen off Alex Salmond. I can do this. I'll stay." My own sense has always been that it is the function of caretaker leaders to lose elections, (and perhaps to win them, if they get lucky) and Johann hasn't lost her's yet. She hasn't done the job, and cannot, with any credibility, throw in the towel now.

But there are also the bright flashes, and a permanent residual glow, of deep, deep insecurity about the Labour MSP, which I expect to be the focus of increasing attention has 2016 approaches.  Peter Ross's 2013 interview in the Scotland on Sunday with Lamont is required reading, and is - very gently, very intuitively - eviscerating. Peter captures that sense of self-consciousness which I observed in the Normandy Hotel in bright colours, and which goes a long way to explaining some of the other, awkward expressions of Lamont's public persona.  A key passage:

"Perhaps because her self-esteem is so rooted in that old image of herself as the clever girl from the tenements, this criticism seems to nag at her and she comes back to it later on. “The worst thing anybody could call me is stupid.” She understands, I think, how corrosive this sort of criticism can be; how, for people who are a little fragile it can eat away at your guts, your head." 

One expression of this, for me, is Johann's pretentiousness, in the very specific sense of "trying to impress by affecting greater importance or merit than is actually possessed." I know, I know, Lamont's favoured shtick is the plain-speaking, no-nonsense dominie. The suggestion seems improbable and even impertinent, particularly from someone as excessively florid as me, but bear with me. Watch the Labour leader talk about any topic, given room to run. She's a remarkably digressive, and frequently incoherent, speaker. Watch her trying and failing to explain her devolution plans to Gordon Brewer. Watch her performance on telly on referendum night, setting out the main , complex factors informing the vote.  Watch her in any setting, where she has time to develop a point, without a script clutched for grim death to read from. She tanks.

The obvious interpretation of this is simply that her mind is stumbling and unfocussed, her tongue tied and tripping her, but I think that diagnosis misses the more interesting point. Lamont doesn't have the confidence to be simple. Her digressive tendency derives from a generally unsuccessful effort to present herself as master of the brief, in command of the technicalities, able to spring from one topic to the next with elegance and fluency. It springs, in short, from inadequacy and a misplaced effort to make out her sense of self as, in Ross's phrase, "a clever girl from the tenements." It turns every considered answer into a dreary psychodrama. 

The only problem is, Lamont doesn't have the communication skills or the smarts to prosper in the role she's allotted to herself. She isn't the master of the brief, and doesn't have the prowess to pretend otherwise. Ensnared by her inadequacies, she conspires to make herself look considerably dumber and less eloquent than she undoubtedly can be. In trying and failing to be impressive, she leaves a mangled wreckage of loosely strung together words and concepts, exemplified by her statement, during the referendum campaign, that "Scots aren't genetically programmed to make political decisions." What she meant by that remark was that Scottish political inclinations are not inborn or inevitable - but instead served up an eminently quotable suggestion that ye and me are a chromosome or two short of the full governing set. This tendency is only likely to be aggravated as 2016 approaches, and the thin film of her self-esteem stews in the battery acid of a campaign.

Emotionally vulnerable leaders are, all too easily, eaten alive in politics. I say it with no relish whatever. This is an ugly thing to see. But if Johann stays on, and my reading of her is anywhere near right, that is the fate awaiting her as the next Scottish Parliamentary election approaches. If the subtext of the next SNP Holyrood campaign is She's Not Up To It, it is hard not to feel that Lamont's own self-confidence isn't rotted by that self-same, nagging doubt. As a human personality, with all of the vulnerability which comes from that, Johann is going to be crucified, not just politically, but in herself. Part of me feels for the the peeping face at the top table, shyly refusing to descend. The referendum may be won, the Labour leader may feel buoyed, but I wouldn't want a lend of Lamont's shoes for anything. 

The party of Scottish self-government

"Absolutely no one will run the affairs of this country better than the people who live and work in Scotland." 

The words are Alex Salmond's, but the sentiment resonated throughout the Yes campaign. We lost on the 18th of September. Scotland will not be an independent country any time soon. But as we take stock, and the SNP doubles in size with inflocking new members, reassembling its leadership around Nicola Sturgeon, it seems to me that we should pin this statement to the wall in bold, bright letters. In black and gold, if you like.

"Absolutely no one will run the affairs of this country better than the people who live and work in Scotland." 

That cause endures. It is not a statement of principle for an independent state alone: it is the red blood of the argument for Scottish devolution within the United Kingdom. During the referendum, in proprietorial mode, the Labour Party would occasionally trot out the line that the SNP don't believe in devolution, keen to erect a wall of fire between aspirations for a separate Scottish sovereignty and the demand for greater autonomy within the United Kingdom. In one, very limited sense, they were right. Independence is, in some important respects, categorically different to devolution of power within a larger state. In international law, states are a distinct sort of entity. They do things which a region within a greater polity - forgive the term - cannot do. States sit at tables which Scotland will not now be invited to. That's beyond dispute.

But this pettifogger's distinction obscures more than it illuminates. The broader claim that seeking greater Scottish self-government has no connection to ideas of independence -- that's poppycock. Anybody who has been paying attention during the last two years cannot but have detected the overlapping logics of devolution and independence. The connecting tissue of the two arguments is a belief in greater self-determination. The difference, really, is one of degree. Certainly, full-fat home rule is different from the semi-skimmed version now available to us, but the idea that the pro-indy bod has nothing in common with the devo-thusiastic has the distinct ring of pish to it.

It is now up to the SNP to be the party of Scottish self-government, making the case for the greatest level of Scottish autonomy within the United Kingdom. Marco is absolutely right. Put all talk of future referendums from your mind. Give it a rest. That battle is over for the foreseeable future. We must win the peace declared by the two million people who voted to remain in Britain last Thursday.

We must be constructive but critical, ambitious but realistic, holding the covenanted people of the No campaign to their undertakings with ferocious tenacity. After the sapping ennui, the activity. We don't have the time to mope or to stand still. And we must take heart. In many respects, we remain in a remarkably strong position for a defeated campaign. And for this, we have the fretful temporising of our opponents to thank.

There are some times in negotiations when it pays to hold back and allow your opponents to show their hands. This isn't one of those times. The territory of aspiration for greater Scottish self-government, the gap between the promises of the Better Together parties and the impression they allowed to be cultivated, is up for the claiming -- but only if we're speedy. The initiative is there to be seized -- if we're quick. Will we get everything we want? Not a snowball's chance in hell. But better for the Tories, Labour and Liberal Democrats to dance to our tune, than to wait for them to fluff the melody.

This commitment is not at odds with the logic of the Yes campaign, but simply its application to our new circumstances. The case for Scottish independence was not rooted in national identity, but in the virtues of national self-government. It was not a case from romantic feeling, but of practical concerns of democratic control of our affairs. It was an argument not for separateness, but for finding new, more satisfactory ways to work together in these islands to realise the political aspirations of the Scottish people. The people have chosen to continue that work within the United Kingdom, and they are never wrong.

That work may initially be contemplated by Nationalists with little enthusiasm, and with a good deal of pessimism about Westminster's willingness and capacity to transform itself. But this founding axiom - maximising Scottish self-government - can carry us through and structure our engagements with this process. It is even a moderately exciting thought. As Nicola recognised in her statement launching her leadership bid yesterday, we can be disappointed, but we must not be discouraged. There's no good in us hanging back, waiting to be foiled, bathing passively in the embalming fluid of low expectations, met.

Smooth equivocations to the contrary, in the dying days of the No campaign, its movers and shakers gave out the distinct impression that Scotland could expect significantly enhanced autonomy if independence was rejected. Devo-max. Devo-super-max. Real home rule. Almost federalism. Everything short of the key functions which the UK needs to exist. Much greater autonomy or an end to the Union, went up the cry.

On any register, this patter was calculated to leave the impression that there would be a significant advance on the proposals set out by the Tory, Liberal Democrat and Labour devolution commissions. Now that independence is safely defeated, the sleekit are attempting to reverse ferret, and to insist that these modest proposals were always the be all and the end all of their devo-something offers. 

That won't do. They know it won't do. Britannia, once again, finds herself between Scylla and Charybdis. Remarkably, the No parties have worked themselves into a position where they may well deliver on their plans for enhancing Holyrood's powers, but where they are more or less predestined to disappoint not just the Yes voting 45%, but the wider community who believe in "significantly enhanced" Scottish autonomy within the Union. As political achievements go, it is a beezer.  Mugged by the sea monster and kicked in the teeth by the scowling beast of the rocks. That's our opportunity. 

So, in these negotiations, let's use Gordon Brown's criterion. He told us that we could expect the maximum devolution compatible with continuing Union. Cameron and Miliband gave him the nod.  Let's take them at their word. In discussing the new settlement, the critical question cannot be "why should that power be devolved?" but "why should this power be reserved to Westminster?" Let's go through schedule 5 of the Scotland Act. Foreign affairs, currency, defence, imports and exports, immigration and extradition - sure, they must remain at the Westminster level. But misuse of drugs? Control of the Crown estate? Firearms? Elections? Equal opportunities? Elections? Insolvency? Energy? Embryology and the cutting edge of medical research? Are they the glue holding the state together? I struggle to see it.

Applying Brown's test, where no reasoned or compelling case can be made for a power's retention, going to the heart of the Union, the power should be devolved. That's our opening gambit. In some areas, the SNP has a snowball's chance in hell of achieving consensus. This, it should frankly be admitted, is the key limitation of the all-together-now structure set up under Robert Smith by the Prime Minister.

And to be franker, our key problems is the stubborn dunce in the room, wearing the big red jacket. What if the best consensus capable of being formed excludes the Labour Party? Which value do you privilege? Are we to proceed at the pace of the slowest student in the class? Must we dawdle as we wait for the Labour Party to recover any kind of ambition for Scotland or coherent idea of why it supports devolution? Will the parties formerly known as Better Together privilege their own coherence, and a united front, or aspire to the greatest level of self-government possible?

In the current atmosphere, it is difficult to say for sure. Smarter sorts in the Labour Party might regard it as a kind of relief: a rare opportunity to pry themselves from off the wretched hook they spiked themselves on with their pitiful and incoherent devolution plans. Nobody will even gloat about it.  But we owe it to ourselves, and all those across this country who voted for greater autonomy, to bash on, undiscouraged. 

Any process which involves the Labour Party will almost certainly not achieve anything like "extensive" new autonomy for Scotland in welfare and social security. Their instrumental case for the Union, and (largely unconvincing) disavowal of British nationalism sets Labour precisely at odds with any such devolution of power. That before we've factored in the universalising ambition behind Iain Duncan Smith's consolidated UK universal credit, which makes hiving off particular strands of social security particularly challenging. To my mind, the Strathclyde Commission proposals represents the minimum floor beneath which the Better Together parties cannot fall without ratting on their vows. But they must be encouraged to go further. 

The challenge for the Westminster parties is to explain to the Scottish people why, in the fields of tax, welfare and social matters, they're better placed to take these choices, to explain why the Union's life depends on excluding them from the Scottish Parliament's sway. But Scotland expects, vows have been uttered, and the SNP has a good answer: "Absolutely no one will run the affairs of this country better than the people who live and work in Scotland." 

Prove us wrong.

Tackety boot Unionism

“What Scots have got to realise is this isn’t a general election.” “This is one poll, but people in Scotland have to recognise that this is forever, the break up of Britain.” “I wonder if that’s really sunk in.” “I don’t think they’ve fully understood the implications of this.” Etcetera, etcetera. Over the last couple of days, the UK media has crackled with sentences of this kind as, as the Daily Mash put it, the UK media rouse themselves to the fact that “Scotland having some sort of referendum, apparently.” What a difference a poll makes. 

Cue a jungle column of political explorers, wending their way north from London, to prognosticate on the future of the Union and the chances of victory. In their train, we can also apparently expect a band of UK “heavyweights”, in the political patois, to press home the case against independence. Both enterprises, the commentary and the campaigning, are fraught with a kind of peril. On the media side, some pieces of writing have been much better than others. Folk like Paul Mason have shown a real interest and sensitivity to their subject. Others rather less so, like the pith-helmeted imperial anthropologists, who gain a superficial knowledge of their subjects, and trump off to pen the authoritative tome, shot through with their own problematic assumptions and cultural blind spots. 

The strange inarticulacy of the rash of tin-eared UK paper reviews and columns on Scotland tells its own story. Do you think, after three years, anybody with half a brain in this country is in danger of conflating the referendum with a general election? Do you think anybody earnestly considering putting their cross in the Yes box can’t countenance the idea that independence means independence? Why assume, on the basis of no real information on the poll, that for the Yes campaign to have run Better Together close means that the punters are nitwits who haven’t been applying themselves in a serious-minded, considered way to the range of alternatives, facts, arguments and uncertainties which have been presented to them? “I know nothing much about the referendum, but if you are inclined to vote Yes, you must have neglected the homework that I’ve… um… never done on the subject.” 

This is a reheated version of an auld sang we’ve heard many times before. Independence is bonkers and unthinkable, and if close to a majority of folk living in Scotland are willing to countenance it, they must either be in the grip of a childish and petulant “anti-politics sentiment”, have been beguiled by that mischievous peddler of villainy, Alex Salmond, or have failed really to understand what they’ve been asked. All of which might be more impressive, had the incredulous scribbler composing it shown any interest or sensitivity to the Scottish question these last many years, or a decent level of respect for the intelligence and responsibility of the public. 

Casting the Scottish electorate as ignorant saps is just another way of avoiding the interesting and significant implications of the referendum for the whole of the UK, whether Yes or No carry the day. It is an expression of a serious lack of self-reflection and self-analysis which has characterised the astonishing complacency and indifference with which the referendum has elicited in the circles of convention British power. In more prosaic terms, it also presents significant potential hazards for Better Together, in making their case in the final ten days of the campaign. I wrote this during the first big Union wobble of the campaign. If anything, it is truer this morning than it was back in May. 

Crumbling certainties confuse and they upset. And the No campaign across the UK doesn't have the luxury of much time to recalibrate its emotional and intellectual resources. The imaginative gap, alluded to by both Massie and Rifkind, separating the Westminster-dominated politics and the debate in Scotland, remains one of the Yes campaign's most significant structural advantages. 

The best advocates always understand their audience, its quirks and assumptions and reactions. They know which levers to pull, which switches to turn and which to leave well alone. Now and then, the talented amateur may get lucky, but it is a risky business. For the increasingly-anxious political actor, steeped in London-centric politics and hoping to have an impact on how Scots vote in September, the prevailing disunities within the UK make the job that much harder. For Better Together's supporters, they can but hope that none of their fretful, tinkering amateurs presses any big red buttons before September. 

The good news for the No campaign is that the United Kingdom has finally woken up to the Scottish problem: that’s also the bad news. In the wake of yesterday’s panic, many, many more people will be hovering around the big red buttons of the campaign, wanting "to do their bit," but deaf to the years and months of conversations and arguments which have gone before. 

If you can’t begin understand your opponent, can’t empathise with where they’re coming from, you are hobbled from the get-go. Tackety boot unionism is the last thing Better Together need at this stage of the campaign, but if the last few days are anything to go by, our late constitutional visitors and observers have few resources of experience to make an informed, sensitive case to an informed, sensitive public. Like yesterday's collapsing federalism shtick, the late renewed interest in Scotland is at best a mixed blessing for the No campaign, and potentially a whole new petard to be hoist by.