"A quintessential matter of political judgment for Westminster..."

Last Friday, the Lord Advocate published the Scottish Government's intervention in the ongoing Brexit litigation before the UK Supreme Court. James Wolffe QC weighed in behind the Divisional Court's judgment, arguing that the royal prerogative cannot lawfully be used to trigger Article 50. But Scotland's senior law officer also ranged beyond that. He points to the Sewel convention, arguing that if Westminster legislates to withdraw the UK from the European Union, the Scottish Parliament must be consulted. 

The Lord Advocate isn't arguing that Holyrood has a veto -- but that the UK constitution now expects MPs to canvas the view of MSPs before legislating on devolved matters. Modern understandings of the Sewel convention generally recognise that it has two limbs. Firstly, that Westminster ought to seek the consent of Holyrood before changing Scots law on issues falling within the Scottish Parliament's purview, like health, or education, or family law.  And secondly, that any changes to the powers of the Scottish Parliament itself ought to take account of MSPs' views. The same goes for any changes to the power of Scottish Ministers, whether enhancing or curtailing their legal authority.

This afternoon, the UK government have published their counterblast against the Lord Advocate's submissions (and parallel arguments, made by the law officers of the Northern Irish and Welsh administrations). You could only expect Richard Keen and his colleagues to resist James Wolffe's arguments, but as Jonathan Mitchell QC tweets this afternoon, the UK government's legal answers have a "strangely tetchy" tone, "supercilious and ill-tempered". Seasoned barrister Sir Paul Jenkins couldn't "recall a case where the government thought it wise to descend to such rudeness", which he describes as "unnecessary and inappropriate." Jo Maugham QC characterises the submissions as "fantastically" so.

In a nutshell, they are that devolution is irrelevant to the issues before the Court, that foreign affairs is reserved, and that ""the devolution legislation cannot add to the arguments" in the case "in any material way." But perhaps most eye-catching, are the UK government's observations on the need to seek consent from any of the devolved legislatures. "The Court is being invited ... to stray into areas of political judgment rather than legal adjudication." They argue the Supreme Court "should resist that invitation."

So how do they reach this conclusion? While recognising that the statutes establishing Edinburgh, Belfast and Cardiff assemblies are "very significant pieces of legislation", they contend that the Sewel convention is not justiciable - which is to say, unsuitable for judicial decision-making. It is, they say, a "legal irrelevance", just a "political convention", and not part of UK constitutional law. In support of this view, they cite Lord Reed -- one of the justices who will hear this case, In 2012, in the Imperial Tobacco case, Lord Reed described the convention as a “political restriction on Parliament’s ability to amend the Scotland Act unilaterally" -- not a legal restriction.

And as far as this goes, this is a perfectly orthodox account of the status of constitutional conventions in the UK. They have generally been regarded as "rules of constitutional morality", rather than rules of constitutional law, susceptible to enforcement by the court. But where the UK government's case hits a potential wrinkle is that Westminster chose in 2016 to inscribe this convention on the face of the Scotland Act. They simultaneously "recognised" the "permanence" of the Scottish Parliament. 

While Lord Reed was absolutely right in 2012, that the Sewel convention was only a political restriction Westminster had undertaken to abide by, this isn't straightforwardly the case in 2016. The UK government's submission - strikingly - has nothing whatever to say about this change, and the impact it might have on their arguments about the justiciability and enforceability of the convention. Back in 2014, Professor Mark Elliott tacked up this informative article about the different potential legal effects of these innovations. In its legal papers, the UK government body-swerves these implications altogether.

So does the statutory recognition of Sewel change anything? Maybe. Maybe not. As a number of us pointed out at the time, David Mundell formulated this statutory recognition in a consciously sleekit way. The new Scotland Act recognised only that "the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament." "Normally" isn't a word you encounter very often in statutes. "Must" and "may", certainly. But not "normally." 

UK lawyers, unsurprisingly, have hung up their wigs on these words. Referring to the Scotland Act, they suggest the convention "does not purport to prescribe an absolute rule." Its content is only that “Westminster would not normally legislate” And here is the kicker. They argue that:

"... whether circumstances are ‘normal’ is a quintessential matter of political judgment for the Westminster Parliament and not the courts. There are no judicial standards by which to measure such a question in the context of a political convention." 

You didn't hear this kind of reasoning - at least in public - when David Mundell was talking up the virtues of the new Act, invoking the idea of a "new parliament, new powers, and new partnerships."

For the UK government lawyers, we end with the orthodox Diceyan vision of the tyrannical patriarch, and the erratic father figure never needs to keep his word, or follow his own rules. Whatever forms of "legal recognition" or apparent constraints Westminster inscribes on its constitutional legislation, "the Westminster Parliament is sovereign and may legislate at any time on any matter ... any attempt to enforce the convention directly or indirectly would be a straightforward impingement on that sovereignty." 

Theresa May's legal counsellors may be resisting any attempt for parliament to take back control over Brexit, but they take Holyrood's subordination to Westminster for granted. For Richard Keen and his colleagues, power devolved is ultimately power retained, whatever political grace notes ministers write into the latest iteration of devolution, whatever our constitutional statutes anticipate and provide. And if the strident, haughty tone of this reply is anything to go by -- how very dare you argue otherwise. 

You can read the whole UK government submission here.

"Ane absolute power to Cass, Annull & Dissable -- Contrair to Law..."

Last night, the Lord Advocate James Wolffe QC published the Scottish Government's written intervention in the Article 50 litigation. The case is scheduled to be heard by all eleven of the UK Supreme Court's Justices between the 5th and 8th of December.  

It is, as you'd expect, a weighty legal document which you may not find instantly digestible. A quick scan throws up a range of old constitutional familiars: the Claim of Right Act 1689, the Act of Union, the Sewel convention -- and even our old friend MacCormick v Lord Advocate. But what does all this mean? When you boil it all down, what is the Scottish Government really arguing for in the Brexit hearing? 

In a nutshell, James Wolffe is pursuing two distinct lines of argument. The first focuses on whether ministers can use the royal prerogative to activate Article 50 and the United Kingdom's departure from the European Union. The second concerns the so-called "Sewel" convention. Is Holyrood's consent constitutionally necessary, if Article 50 is to be activated? 

Let's start with the first line of argument. The royal prerogative is the name given to the residual legal powers of the crown. Its exercise entitles Her Majesty's government to enter treaties with foreign powers, or even to declare war, without reference to parliament. Earlier this year, the three judges of the Divisional Court held that Theresa May's government could not use the foreign affairs prerogative to activate Article 50. The Lord Chief held that Westminster must pass legislation, to begin disentangling Britain from the EU, and stripping away the rights in domestic law connected to it. The Scottish Government have weighed in behind this argument, but appeal to different sources.

The Lord Advocate invokes the preamble to the Claim of Right Act, passed by the old Scottish Parliament in 1689 in the aftermath of the eviction of King James VII and II from the country and the throne. Parliamentarians slammed James for having corrupted his rule "from a legall limited monarchy to ane Arbitrary Despotick power and in a publick proclamation asserted ane absolute power to cass annull and dissable all the lawes." Their 1689 Act states any attempt to use crown authority to "cass, annull and dissable" laws was itself "Contrair to Law." 

Here, the 1706 and 1707 Acts of Union warrant a passing mention. As James Wolffe points out, Article XVIII of the Acts provides that  "all other laws in use, within the Kingdom of Scotland, do after the union and notwithstandng thereof, remain in the same Force as before ... but alterable by the Parliament of Great-Britain." Notice the critical point here. "At the foundation of the United Kingdom, it was Parliament ... and not the Crown, which was given power to change the law of Scotland."  Read together, he suggests, these sources confirm the Divisional Court's judgment that it is for parliament -- not the crown in exercise of its royal prerogatives -- to alter the law of the land. 

Here the Scottish Government's argument shifts forwards, towards more contemporary sources. Wolffe argues that if Theresa May was entitled to use the prerogative to activate Article 50, its effect would hollow out a range of laws currently applicable in Scotland, including the Scotland Act, which "assumes the UK, including Scotland, is a member of the EU." The devolution legislation requires Holyrood to respect the rules and regulations of EU law. So too must Scottish ministers. "The effect of withdrawal from the EU", he contends, would be to "cass, annul or disable" these provisions - a step which the Lord Advocate concludes "may not, compatibly with the Claim of Right Act 1689, be effected by an act of the prerogative alone."

If the Supreme Court accepted this line of argument, it would be for the Westminster parliament to legislate for Article 50. But where stands Holyrood then? Here, the Lord Advocate's case shifts onto different terrain, and its second main theme. Is Holyrood's consent required or not to legislate for Article 50? As AV Dicey famously maintained, Westminster is sovereign under the British constitution. Between 1707 and 1998, MPs legislated for Scotland. Devolution didn't deprive the UK parliament of this power. This is recognised in the Scotland Act 1998 itself. Section 28(7) stresses that devolution "does not affect the power of the Parliament of the United Kingdom to make laws for Scotland."  

But since 1998, the interaction between the two parliaments has been governed by a constitutional convention, sometimes called the Sewel convention. The Scotland Act 2016 recognised the long-standing rule of constitutional morality that Westminster "will not normally legislate with regard to devolved matters without consent." This convention is generally regarded as having two limbs. Firstly, if the UK parliament wants to pass legislation in areas lying within Holyrood's powers - on health say, education, or family law - MPs should seek consent from MSPs. But beyond that, if Westminster legislation would expand or contract the powers of Scottish Parliament or its ministers, this too requires consent.  A good example of this was the additional powers devolved by the Scotland Act 2016 itself.

In his brief, the Lord Advocate argues that "withdrawal of the UK form the EU would alter the competence of the Scottish Parliament and Government, and the law applicable in Scotland within devolved competence. A Bill to authorise withdrawal would accordingly engage the legislative consent convention." Holyrood's consent, he says, must be sought. 

For the sake of argument, let's say that the UK Supreme Court agree with him. Then what? Does the convention have any legal teeth? Consider, for example, the eminently plausible scenario, that the majority in Holyrood refuses to give its consent to any Article 50 Bill, unless the UK government commits to pursuing the gentlest Brexit possible. Say also that Theresa May is unwilling to bow to this pressure, and presses on with an Article 50 Bill and the hardest of hard Brexits. Is the Lord Advocate seriously suggesting Holyrood has the legal power to frustrate Westminster? In law, does the Scottish Parliament hold a Brexit veto? The answer may disappoint you, and irate headline writers everywhere. 

If you read the Scottish Government's submissions carefully, they actually conclude Holyrood has no legal power to "block" an Article 50 Bill passed by Westminster.  If the UK parliament were to choose to pass an Act of Parliament without Holyrood's consent, the Lord Advocate concedes, "the courts could not decline to recognise the validity of the resulting Act." He accepts that Holyrood has no legal trump over Brexit. Politically, of course, overriding Holyrood and ignoring its objections would embroil the two governments and parliaments in a potentially poisonous constitutional crisis. 

And it is this opportunity to put Theresa May under political pressure which the Lord Advocate seems to be angling for in this intervention. What he is looking for is a direction from the Supreme Court that constitutionally, Holyrood should be consulted about any Article 50 Bill, whether or not Westminster respects Holyrood's conclusions. This, he suggests, "would not involve an impermissible interference with proceedings in Parliament" and would represent the Court fulfilling "its proper function of identifying the constitutional requirements."

It remains to be seen whether either of these lines of argument prosper. You can read the whole submission for yourself here.

Legally, can Holyrood "block" Brexit?

"100 days on from the referendum and with up to six months until the triggering of Article 50 it is time the government got serious and put our economic interests and membership of the single market at the front of their negotiating plans. With a clear majority in the Scottish Parliament for retaining membership of the single market - expressed as recently as last week - it is difficult to‎ envisage the circumstances in which the Scottish Parliament would give consent to any legislation that did not guarantee this."

So said Nicola Sturgeon's Bexit minister, Mike Russell. But what did he mean? What precisely can and can't Holyrood do, in resisting the many-layered legal complexities of Brexit? Several souls have asked me about this other the last day or two. So here's the lightweight primer on the law. Brace yourself. It gets a bit tricky.

First thing's first: Holyrood has no legal power to veto or block Brexit. Start with the basics. Under Schedule 5 of the Scotland Act, foreign affairs – including Britain’s relations with the EU – are matters reserved to Westminster and Whitehall. Under section 29 of the legislation, Holyrood is prohibited from passing its own laws concerning nuclear weapons, defence, and so on. Legally, these are Westminster's purview. And because they are Westminster's purview, MPs and the UK government, don't need the Scottish Parliament's permission to alter the law on reserved matters. 

But there are some kinds of Westminster legislation which do require the nod from MSPs. This isn't a matter of strict law - but of constitutional convention. This convention was set out in section two of the 2016 Scotland Act. "It is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament," it said. As I pointed out at the time, you can feel the caveats in the statutory language: "normally", "recognised." Whitehall's clear view is that this section doesn't limit the sovereignty of the London parliament to make or unmake any law whatever, irrespective of Holyrood's complaints.  

But this statutory recognition includes only part of the convention. The UK government has consistently recognised that Holyrood's consent is necessary, if Westminster wants to change the legislative competence of the parliament, or to add or subtract from the executive competence of Scottish ministers. One good example of that was the 2016 Act itself. David Mundell recognised that the Edinburgh parliament had the right to refuse the new powers, and a vote was taken. 

This convention proves some - very limited - constitutional security for Holyrood from the prospect of Westminster abusing its sovereignty to reverse its decisions in devolved areas. But it doesn't apply beyond that. Holyrood’s consent clearly is not necessary to activate Article 50. Only politics can prevent the hard Brexiters in the Tory government from dragging us out of the single market.

Through some creative  lawyering, you might just be able to cobble together an argument and get a case up on its feet.  In the High Court in Belfast, litigants are attempting precisely this. But their chances of victory are remote. The court case is really about boosting the political salience of the situation in Northern Ireland. As someone tweeted as me, in response to my Times column this morning, if Scotland counts for "nothing" in Brexit Britain, how much the worse for Ulster and its people? 

So that's the bottom line. Holyrood's consent is only needed if Westminster wants to legislate about devolved matters. But even then -- failure to give consent can be overriden by the exercise of parliamentary sovereignty. So what, then, can Mike Russell have meant when he said Holyrood might refuse consent for Mrs May's Great Repeal Bill? And what effect would refusing consent have anyway?

You've got to recognise that EU law is everywhere in UK law, and it isn't neatly packaged in one big book of rules, embossed in gold and bound in red buckram, easily tossed onto a bonfire. EU norms are enshrined in a dizzying array of documents, from the European Communities Act 1972, to ordinary legislation, to regulations, to the Scotland Act itself. In terms of UK constitutional law, some areas principally regulated by EU law are devolved, others not. The UK Equality Act 2010, for example, gives effect to European non-discrimination directives -- and is for the main part, a reserved matter. Holyrood can't amend or repeal it. 

Fishing, on the other hand, is only very partially reserved to the London parliament. But to ensure Scottish Parliamentarians didn't go voyaging on stranger tides, in 1998, MPs decided to constrain the new parliament's powers. Section 29 of the Scotland Act requires all Scottish legislation comply with the rights set out in the European Convention on Human Rights -- and EU law too. That's why, for example, the Scottish Whisky Association were able to take the SNP's minimum alcohol pricing legislation to court. The liquor manufacturers argued that the legislation interfered, unlawfully, with the European single market, by discriminating against producers able to pump out plonk on the cheap, by requiring them to sell their products at an inflated cost.  The requirement to tender for ferry services is another -- controversial  -- example of EU law at work.

The critical point is -- the Great Repeal Bill seems likely to stretch across reserved and devolved issues simultaneously. Some parts of it will require the Scottish Parliament's consent, others not. But as Professor Colm O'Cinneide, from UCL recognised, the legislative consent motion before Holyrood "may have to be drafted in broad terms, and of course will need to cover EU law provisions" written into Scotland's devolution settlement.

Which is where Mike Russell's "block" comes back in. Under the Scotland Act, Holyrood must obey EU laws, on fishing, agriculture, non-discrimination. If the PM wants to strip out those rules or to change Holyrood’s powers – she will need to secure the consent of a majority of MSPs. As things stand, it is perfectly conceivable that Scottish politicians will decide to defy Westminster. Mrs May would then have to decide whether to ignore their objections, riding roughshod over constitutional principles -- or to respect them, and leave Holyrood subject to EU law, but paradoxically, outside the European Union.

It isn’t necessarily obvious, however, why our parliamentarians would refuse their consent. It isn’t the Scotland Act restrictions which guarantees the rights of Scots to move freely, and to work and resettle across Europe – but the UK’s dying EU membership. Many EU rules are, in principle, about sharing burdens as well as benefits, while keeping an eye out for backsliders, free riders and chancers. Every state, for example, is likely to be inclined to discriminate in favour of its domestic industries in the economy, and to cultivate a more unfree market. EU single market rules seek to eliminate this across the whole bloc. 

But why keep the rules, when you aren’t part of the club? Unless the requirement to adhere to EU law was stripped out of the Scotland Act - we'd be looking at carrying their burdens, without seeing their benefits. An invidious position, no? There are a few more and less convincing answers to this objection. The symbolism of such a vote in Holyrood is obviously significant. Most folk won't follow the legal niceties of what the consent procedure actually represents. It will, inevitably, be seen in simpler, more political terms. Does Holyrood capitulate or not in the teeth of the Tories' haughty insistence that Brexit is their baby, and it will be midwived into monstrous shape only on their terms? That is how it is likely to be seen - presented - and understood by many.

For the SNP, retaining EU law might also represent a statement of intent about an independent Scotland’s future inside the Union. Why radically diverge from EU rules, when you want to join the club, sooner rather than later? Shadowing (some) of the regulation could be seen as a significant gesture of this kind. But you could do this, without making it a legal requirement to legislate in a way which is compatible with EU principles. And let's be honest: eliminating EU regulation would create opportunities as well as challenges, to take policy positions prohibited by single market rules.  

Alan Page, Professor of Public Law at the University of Dundee, has identified another - slightly trickier - issue with the Great Repeal wheeze, in his short paper for the Holyrood committee scrutinising Brexit. The key point is identified in paragraph 13 of Professor Page's note.  He is concerned about the possibility of UK government ministers disapplying and altering EU law concerning devolved matters in Scotland, without any reference Westminster, or to the Edinburgh government or Parliament. Law is made in many ways. One important source is what is called "subordinate legislation" - generally powers exercised by ministers in the government, often with lighter scrutiny from MPs than full-blown Act of Parliament. Mrs May's government seems likely to use this tool to prune the EU law which applies in Britain. But there's a problem. Professor Page:

"At the moment there is no requirement of the Scottish Parliament’s consent to UK subordinate legislation transposing EU obligations in the devolved areas; nor is the Parliament routinely informed about such legislation. Were obligations to be transposed by UK Act of Parliament the Scottish Parliament’s consent would be required, but if they are transposed by subordinate legislation its consent is not required. The situation could thus arise in which the UK legislated extensively in areas devolved to Scotland without seeking the consent of the Scottish Parliament as there would be no requirement of its consent in relation to subordinate legislation altering the effects of EU law in the devolved areas. In my view, this represents a significant potential gap in the framework of Scottish parliamentary control over UK law making in the devolved areas, which the Scottish Parliament should be alert to the need to close should UK Ministers be given the power to revise EU law in the devolved areas."

If Mrs May's Great Repeal Bill laid the foundations for this kind of arbitrary mode of decision making, without reference to devolved institutions, the Scottish Government would understandably hit the roof, and refuse to give their blessing to her Bill. They would be right to do so. From a political perspective, all of this is pungent. Legally, however, Holyrood can really only stage a weak, rear-guard action on the Brexit fallout. So long as we remain tethered to the UK government, we're tethered to its fate, outside of the European Union. Despite Mr Russell’s fighting talk, the legal scope for Holyrood to make Brexit mischief remains very limited. As for the political opportunities? Well: they're a different matter entirely.

What would Brexit mean for devolution?

As we hirple towards the EU referendum finish line, I'm often asked a question. What would a Brexit vote mean for devolution? If we crash out of the European Union, would Holyrood - in a trice - become more powerful? The Lord Chancellor, Michael Gove, toyed with this kind of rhetoric last week, claiming that unprecedented immigration powers would be devolved to the Scottish Parliament, in the event of Brexit.  If you'll believe that -- you'll believe anything. Disembark from the banana boat which brought you up the Clyde. Check the back of your head for buttons immediately. 

But a similar argument was made back in February by Drew Scott of the University of Edinburgh.  Scott highlighted that, at present, a number of devolved issues - including environment, agriculture, fisheries and social policy - are guided by EU law. He suggested that "if the UK leaves the EU, then by default these powers will come back to the Scottish Parliament, not to the UK."

Is he right or wrong? And if so, why so? Show us your working. Let's start with the short version: for the main part, no, it isn't true. A Brexit vote on Thursday - in and of itself - does next to nothing to strengthen the powers of the Scottish Parliament. Nowt. Zip. Nada. Now - as always - we are subject to the whims of the majority in the House of Commons, which now - as always - ultimately decides what powers Holyrood will and will not be trusted with. Now - as always - this will be decided by the UK majority in Westminster. 

So how does it work? Here, things get a wee bit more complicated. Under section 29 of the Scotland Act, Holyrood's legislation must comply with EU law. That's why, for example, the Scottish Government's minimum alcohol policy could be challenged. Whisky manufacturers argue that it represents an unjustifiable interference in Europe's common market in liquor, indirectly discriminating against European companies, able to sluice out wine on the cheap. The case continues.

But that's not the only thing which limits Holyrood's powers in fields dominated by pan-European regulation.  The Scotland Act doesn't list all the issues which the Scottish Parliament has control over. Instead, the legislation knocks that logic on its head. It lists only those topics which Holyrood can't legislate about. You find all this in Schedule 5. We call these "reserved matters" - and if you take a look at them, you'll see that in most of the areas identified by Professor Scott, there would be limited or no "automatic" strengthening of Holyrood at all, even if EU law was disapplied.  

Take the issue of fishing, for example -- a hot button. Under C6 of Schedule 5, the "regulation of sea fishing outside the Scottish zone (except in relation to Scottish fishing boats)" is a reserved matter.  It will remain so unless and until Westminster removes this restriction. The same goes for many other areas of policy. With some limited exceptions, for example, equal opportunities remains reserved, despite agitation for its devolution in the last Scotland Bill. Head H reserves employment law to Westminster, including the minimum wage, trade union legislation, the Employment Rights Act, and so on. MPs decided that these should continue to be decided by MPs -- despite calls for their devolution as recently as last year.  

Professor Scott's point is more convincing when it comes to agriculture and environmental policy -- neither of which feature prominently in the list of reserved matters. But competency without cash is a paper power. Will future UK governments match the agricultural subsidies which the EU Common Agricultural Policy has used to support the industry of our farmers? Will an austerity government become big rural spenders? Who knows?

The idea that you can  - in a trice - "automatically" empower Holyrood across all these categories of governmental policy by leaving the EU is a naive fantasy. And that, before we get into the regulatory harmonisation which might be necessary if a weakened Brexit Britain is to cut the sort of trade deals with the rest of the bloc.  Your guess is as good as mine about what the majority in Westminster would during during a post-Brexit interregnum.  I don't know about you, but as a Scots lawyer, concerned with the powers of devolved parliaments and assemblies, I don't find the idea of "restoring" Westminster sovereignty over these fields terrifically reassuring. It is the usual grisly rhetorical prelude, anticipating bitter medicine. Pass the catheter. 

The only folk you can be sure you are empowering is the Conservative majority in the House of Commons. And despite their infighting, their backbiting and their bitter internal tribalism -- there remains precisely no indication they are on course to lose the next general election, or the next.  Nor is there any indication that Mr Cameron and his allies -- or Mr Johnson and his allies -- have the slightest interest in allowing Scotland to diverge from Westminster on workers' rights, equality, or immigration. Don't take my word for it. Just cast your mind back to the debates and votes on the last Scotland Bill, when Tory MPs trooped biddably though the lobbies again and again to shoot down  substantive SNP amendments. 

I don't know about you -- but this seems like a remarkably powerless, unreliable, risky way of "taking back control" over these areas of social policy to me. 

Now, you may well believe that after Brexit, everything will be different. You may believe that with Brexit, everything is possible. And in the most abstract, theoretical way -- for sure. But a sober worldly politics can't let itself be dazzled and distracted by abstract possibilities. Let's look at the probable, as well as the possible. Let's be tutored by our own experiences. Let's consider the social forces, actually in play. Let's contemplate who is actually likely to be empowered by crashing out of the EU. 

After all: who you gonna believe, Michael Gove, or your own lyin' eyes?

Questions, questions

It is a finnicky detail, but an important one. Today, Kezia Dugdale has announced that Scottish Labour wants to increase income tax by 1 pence in the pound across all tax bands. Under the scheme, anyone earning over £10,600 or so will find themselves making a greater contribution to the Scottish exchequer. Wealthier folk considerably more. 

From a legal point of view, this is entirely in order. Under the Scotland Act 2012, Holyrood sets a single Scottish rate of income tax to be paid by Scottish income taxpayers. So how does it work? Under the 2012 Act, you take the UK tax bands determined by Westminster and knock 10% off them. Holyrood has the discretion to add a single supplementary Scottish rate over and above this, which applies to all bandings. To add 11% to the upper rate of income tax, MSPs have got to add 11% to the basic rate too. 

Notice a few important things which the 2012 Act doesn't let MSPs do. They've no control over (a) the extent of the tax free personal allowance (b) the number of tax bands in operation (c) when these bands kick in and (d) obviously cannot - at present - increase only the upper rates of taxation. But importantly, the Scottish Parliament also cannot introduce additional forms of tax relief into the code, or add permissible deductions or provision for rebates to the HMRC rules, even for Scottish taxpayers. Nothing in the Scotland Bill, before Westminster, will change any of this. For the moment, all MSPs can do is move the overall income tax slider up or down.  

This is why I'm more interested in Scottish Labour's attempt to sweeten the bitter pill of making even those on very modest incomes pay more tax, by promising the following:

“We would establish, with local authorities, a £100 annual payment to the boost the income of low paid taxpayers. This will account for just £50 million of the half a billion pounds this change will raise but will mean that we can boost the incomes of low paid taxpayers.”

Labour are defining a "low paid taxpayer" as "taxpayers" earning less than £20,000 a year. They suggest "one in five tax payers will end up better off financially" for the modest expenditure of £50,000,000 a year. The Guardian and Daily Mail characterise these payments as "rebates" for the low paid. The Daily Record calls it "cashback." Kevin Hague calls it a "refund", though Kevin rightly stresses that "the precise mechanics of how this would work are unclear". The BBC and Holyrood magazine characterise the proposal as a "payment," but offer nothing more by way of detail than Labour's press release summary.  

So what might the legal mechanics of this critical element of Kezia Dugdale's platform be? Let's be clear about a few things from the get-go. Firstly, and as-per-ruddy-usual, the Scotland Act doesn't provide a straightforward legal mechanism to realise Scottish Labour's ambitions. Holyrood has no authority to order HMRC to fork over a £100 repayment to those earning less than £20,000 gross salary per annum. This is so, even if the Scottish Government is good for the money it would cost and willing to pay the funds. This will remain so, even after the Scotland Bill comes into effect.

Holyrood has no legislative competence to introduce such a scheme, as "taxes and excise duties" remain - broadly - reserved. So this is no "rebate", no "tax refund". And critically, it couldn't be administered through the tax system, with all of its convenient access to the financial information of hundreds of thousands of Scots. 

Although is - doubtless - convenient political shorthand for Dugdale to link the two, what the Labour leader is proposing here is an entitlement scheme quite distinct from Holyrood's decision-making on the Scottish rate of income tax. Such a payment seems to fall within the - generally reserved - domain of social security. This is defined as "schemes supported from central or local funds which provide assistance for social security purposes to or in respect of individuals by way of benefits,"

“Benefits” here is defined as including "pensions, allowances, grants, loans and any other form of financial assistance." And providing assistance for social security includes "providing assistance to or in respect of individuals ... who qualify by reason of low income." Although Scottish Labour want to dress this up as a rebate or a refund -- it bears all the hallmarks of a social security benefit. If the Scotland Bill passes and comes into force, section 26 should lend Kezia a hand, but until that day, it isn't clear how Dugdale can bring her £100 payments about. The timelines for realising these powers may, or may not, neatly splice with the tax hike she is proposing. 

And because this isn't a tax repayment, there are obvious wider practical implications worth considering. Labour indicate that local authorities will shoulder the burdens of adminstering this policy (so no universal credit supplement, this). So how is it envisaged local authorities will collect the relevant financial data on potential beneficiaries? A "rebate" might suggest a convenient calculation, completed automatically by the taxman's computer, which coughs the cash directly into your bank account. But local authorities don't have this data. Will the low paid be expected to take the initiative to make some kind of local government tax return to establish their eligibility? 

And thinking of that, have administrative costs been factored into Scottish Labour's £50 million estimated costing for this policy, or is this simply an estimate of the total cash which those earning under £20,000 will be entitled to? If these figures don't include administrative costs, why not? And if they do include administrative costs, what data are these calculations based on? What assumptions have been made about the number of individuals eligibile? What's the breakdown? 

One reason why you might struggle to tell me that is that you're still a little fuzzy on who will, and who won't be, entitled to this £100 benefit. In which case, that £50 million estimate looks even shooglier. HMRC estimates that around 2.56 million Scots pay some income tax, the overwhelming majority at the basic rate. Are those earning less than the personal allowance (£10,600 in 2015/16) being classified as "taxpayers" in this scheme, entitled to an annual £100 supplement, along with those who earn £15,000? Pensioners, students, weans? Or will only those who cross the threshold of the personal allowance see the supplementary £100? But even if we're only talking about these taxpayers, making 512,000 people wealthier while taxing them more might seem a difficult circle cheaply to square.

Not insuperable hurdles, then. But questions, questions.

Do Police Scotland have the right to remain silent?

Holyrood's Justice Committee gave Deputy Chief Constable Neil Richardson a bit of a drubbing on Tuesday. MSPs questioned the senior police officer with uncharacteristic ferocity and skepticism, on how it came to be that Police Scotland "recklessly" obtained communications data about a journalist's sources without the necessary judicial approval. 

Richardson's line was that he had been cast as an "archetypical villain." Taking swipes at reporters and reporting, he insisted that the force's recklessness should be understood, not as sinister over-reaching or indifference to critical rules on the integrity of data from prying coppers, but a wee human error by a senior, well-intentioned officer who thought he was applying the rules properly. Their ratty exchanges in parliament left MSPs unconvinced that they'd heard the whole story. By the end of Tuesday's meetings, MSPs had resolved to summon Chief Superintendent Clark Cuzen, DSI David Donaldson, DSI Brenda Smith and DI Joanne Grant to parliament, to speak to the issue. Donaldson had been named by Richardson earlier in proceedings as the officer responsible for "misinterpreting" the RIPA rules. 

But the front page of today's Herald suggests considerable police disquiet in the ranks about the idea of operational officers appearing before Christine Grahame's committee. David Leask has the scoop. Richardson is reportedly taking legal advice on whether his officers can decline to attend, with sources complaining of an "unprecedented political interference" in policing. Well, what are Richardson's lawyers likely to tell him?

Firstly, the Standing Orders of the Scottish Parliament distinguish between invitations to give evidence, on the one hand, and Holyrood's powers to require attendance. Invitations might safely be declined for any number of reasons. There are no legal penalties for doing so. On the papers, it is clear - at present - that these officers have only been invited to attend the Justice Committee's proceedings. What Police Scotland must carefully judge, however, is whether MSPs are likely to play hardball, and to respond to any polite refusal of their invitation with a requirement that these officers appear.

Under section 23 of the Scotland Act 1998, Holyrood has the power to require "any person" to appear before it, or to produce documents, "concerning any subject for which any member of the Scottish Executive has general responsibility." Under s. 23(7), judges and tribunal members cannot be compelled. Procurators fiscal aren't required to "answer any question or produce any document concerning the operation of the system of criminal prosecution in any particular case" if the Lord Advocate considers answering questions or producing documents "might prejudice criminal proceedings in that case or would otherwise be contrary to the public interest."

More generally, witnesses aren't obliged to answer questions which they "would be entitled to refuse to answer or produce in proceedings in a court in Scotland." But under the Act, there is no general police exemption from parliamentary scrutiny. Even concerning operational matters. 

What happens if the witness doesn't turn up, or if the documents demanded are never produced? It is a criminal offence under s.25 of the Scotland to ignore a requirement to appear, punishable by imprisonment for a period not exceeding three months, or a fine of £5,000. Under Rule 12.4 of Standing Orders, the Justice Committee is fully empowered to use these tools of compulsion and discovery. 

Which - depending on the strength of political will behind this, and the raw nerves of both the committee and the police force - must make bleak reading for Deputy Chief Constable Richardson and his officers. There may, however, be a wee legal wrinkle here which the police might be able to exploit. Holyrood's powers to compel witnesses to appear are subject to one important limitation. Witnesses may only be required to speak to "any subject for which any member of the Scottish Executive has general responsibility."

On one formulation, MSPs are seeking to scrutinise the general operation of policing in Scotland here: a devolved matter. But the heart of the Justice Committee inquiry is the application of RIPA. And under Schedule 5 of the Scotland Act, the interceptions of communications is a reserved matter. Scottish Ministers do not have "general responsibility" for its regulation. This is a pretty thin argument, I grant you. But if you are an anxious police officer, in search of any legal pretext to decline to appear, it might offer you just the wisp of an excuse. 

Gove: human rights "neither reserved nor devolved"

Does Westminster need Holyrood's consent to repeal the Human Rights Act? This blog has been asking this important question since the general election. In June, Deputy Leader of the House of Commons, Therese Coffey, told Joanna Cherry that human rights are "a reserved for the UK Parliament and not a devolved matter," implying that consent for repeal was unnecessary. Later that month, justice minister Michael Gove reiterated this view, telling MPs that "in this United Kingdom Parliament, human rights are a reserved matter."

But there's a problem. If you rummage through the Scotland Act, you won't find human rights on the list of reserved matters. Indeed, Schedule 5 makes it crystal clear that human rights do fall within Holyrood's legislative competence. But what about the Human Rights Act itself? Schedule 4 of the Scotland Act protects the Human Rights Act from modification, amendment or repeal by Holyrood. 

This leaves us in a funny situation. Human rights aren't reserved to Westminster, but only Westminster can amend or repeal the Human Rights Act. Here's where the Sewel convention comes in. This rule of constitutional morality says that if Westminster wants to legislate about devolved matters, or wish to expand or curtail the powers of the Scottish Parliament, they must seek the consent of MSPs before doing so. The UK parliament remains sovereign. The Lords and Commons could ram through any changes they like over the objections of MSPs. But the convention is -- they won't. The UK government is sufficiently committed to this convention to transpose a version of it into the Scotland Bill. It cannot lightly be dispensed with.

So how does Sewel apply to HRA repeal? Should it be treated as a devolved matter, requiring consent - or a reserved matter, requiring none? Yesterday brought some interesting but largely overlooked developments on this score. Michael Gove appeared before the House of Lords Constitutional Affairs Committee. Questioned about the UK government's repeal proposals, the former Lord President of the Court of Session - Lord Cullen - put the question to Gove directly:

Cullen: "Is it accepted that the repeal of the Human Rights Act and the creation of a Bill of Rights Act would give rise to the application of the Sewel convention?" 

Reverse-ferreting from his earlier, much more bullish pronouncements in the Commons, Gove wibbled:

Gove: "I think: its an open question. And the reason why I hestitate to pronounce definitively is that we'd have to see what was in any given Bill in order to be absolutely certain as to whether or not a legislative consent motion might be required in any of the devolved legislatures."

Lord Cullen pressed on, as it became increasingly clear that Gove and his department still haven't fully contemplated the devolved implications of their repeal policy. In June, he thundered that "in this United Kingdom Parliament, human rights are a reserved matter." And in December? Wibble wibble.

Cullen: "Taking the matter at its most basic, legislation in regards to human rights is a matter which is not reserved, is that right?" 

Gove: "It is neither reserved nor devolved." 

Cullen: "So it is open to the Scottish Parliament to make its own provision for human rights, if it so chooses?" 

Gove: "The -- My understanding of the constitutional legal position is that only the United Kingdom parliament can amend the Human Rights Act. But it is the case that the application of human rights, by definition, differs in Scotland, as distinct from the other parts of the United Kingdom, because Scottish courts will interpret those rights consistent with Scots law and Scots legal tradition." 

Cullen: "What I'm driving at is, would the creation of a new Bill of Rights Act be something which would give rise to the Sewel convention, because it would enter an area where the Scottish Parliament itself could legislate?" 

Gove: "Well, I don't believe that the Scottish Parliament -- I, you know, stand to be corrected -- I don't believe the Scottish Parliament can legislate to fundamentally alter the rights architecture which the Human Rights Act has put in place. I think that is a matter for the United Kingdom parliament, as I understand it."

Hardly the most trenchant or confident analysis, you might well think. Reading his answers in the light of my opening observations, you can see what Gove has done here. He's right to this extent: Holyrood can't amend the Human Rights Act because Schedule 4 of the Scotland Act prevents MSPs from doing so. But the Lord Chancellor has precisely no answer to the point put squarely to him by the Scottish judge: human rights are not a reserved matter. The idea of a matter being "neither reserved nor devolved" is a nonsense, a muddle, and a confusion. 

Having airily dismissed the idea just months ago, Gove now concedes that legislative consent may be necessary, depending on the detail of his British Bill. The admission is significant enough on its own, but Gove's quibbling reticence on whether Holyrood will have to give the UK administration's Bill of Rights the nod is stonewalling, pure and simple. It is next to impossible to imagine any version of any British Bill of Rights which would not impact on Holyrood's legislative competence, and accordingly, engage Sewel. 

But Gove is a politician. You find playing for time in the beginner's kit. And when you find yourself lost and confused in public about something so basic? It is all you can really do. But time is running out for the Lord Chancellor. Nicola Sturgeon has already said that "the SNP Government will invite the Scottish Parliament to refuse legislative consent to scrap" the Human Rights Act. The Sewel stramash isn't going away. In his recent Tim Yeo libel judgment, Mr Justice Warby memorably observed in that "when a fish wriggles on a hook, it goes deeper into the mouth and guarantees that the fish will not escape." Eventually, Mr Gove will have to make up his mind: bite or flight. 

Will-o-the-wisps...

Halloween's blog had a necessarily negative theme. Some correspondents felt I was being unconstructive in emphasising the limits of Holyrood's powers instead of the opportunities to blunt the impact of the proposed changes to tax credits. Holyrood has no direct authority over tax credits rates and tapers: this we know. If the moneys can be found -- and that is a big if -- some kind of income supplement could be funnelled towards some of those likely to lose out under Chancellor Osborne under the Scotland Bill powers.

But in pledging to "restore" tax credits clawed back by the UK's Tory administration, Kezia Dugdale depicted as fait accompli something which may well prove impossible on legal, cost and administrative grounds. If Dugdale had taken to the stage at her party's Perth Conference, and pledged only to do her darndest to devise a scheme which would mitigate the impact of the proposed cuts as best she was able, I'd have nothing to complain about, bar the funding question.

But she didn't. "Scottish Labour Government will restore the much needed tax credits" she said. Folk - folk on tax credits - listening to Labour's new leader in Scotland will have a lively expectation of a like-for-like, penny-for-penny restoration of their fortunes. Many, perhaps most, will assume that the Scotland Bill makes all this easy, makes all this just a matter of political will. But it doesn't.  

I take the point: exaggerated pessimism about the Scotland Bill powers is not helpful. But neither is the indifference to practical, workmanlike questions which has characterised much of the discussion of Kezia's bold conference move. We shouldn't underestimate the new powers, and overlook an opportunity to good, in the grim determination to see the blackest side of our devolution settlement. We shouldn't hobble ourselves and evade responsibility for what we can and should change. But practicalities matter.

There is nothing social democratic about false hope. There is nothing social democratic about convincing the low paid that Tory tax credit changes are easily and cheaply remedied with a strike of the First Minister's pen. They're not. As I wrote on Saturday, I'm sure folk struggling on low incomes will appreciate whatever help they can get from Holyrood. But I'm also sure that they'd have little patience with politicians making grand, uncosted pledges which are unlikely be honoured, even if Scottish Labour are swept to power in Holyrood in May next year.

"At least Scottish Labour are offering empty promises. Will the SNP match our uncosted pandering?" Where powers lie is not an arid constitutional matter. It isn't unconstructive to point out that achieving - even desirable outcomes - is likely to be difficult, beset by Treasury caprice and penny-pinching and the usual frosty hierarchical relations. I like living in hope as much as the next fellow - more probably - but as slogans go, "where there is a will there is a way" has all the statecraft of Noddy in Toyland. Try convincing the Treasury to exempt our firefighters and police force from VAT. See how far living in hope takes you with David Gauke, coiled like a dragon on his hoard. 

A few questions then, in a constructive spirit. Firstly, how will the entitlements of individuals be established in Kezia's "restoration" scheme? As I outlined at the weekend, George Osborne's tax credit changes involve accelerating the taper and reducing entitlements to tax credits on a much lower threshold. This is a dynamic assessment, varying from year to year. Holyrood can do nothing about this. Tax credits - while they remain - are reserved matters. From an administrative point of how, how does Scottish Labour envisage this will work? What rules will apply? A simplified compensation scheme might be devised - but almost inevitably, it would result in some losses from the tax credit changes not being compensated by a Labour administration. 

Would this live up to the "reversal" of cuts promised? With the best will in the world, it is difficult to see that it could. The more complex the scheme of entitlements, with greater variables, the greater the headache from an administrative point of view. Time, personnel, money, development. At what point does the cost of administrating a new entitlement to mitigate tax credit cuts represent a poor use of public funds, robbing Peter to pay Paul? There must be limits. Even if you are sympathetic in principle to the notion of mitigating tax credits cuts - there is nothing churlish about asking this question.

A hard line cannot be drawn between the desirability of a policy intervention and the cost of its implementation. The two must be part of a sound analysis of whether tax credit mitigation is the best way to use the Scottish Government's limited resources. That is a political judgement, for sure. But we treat Scottish Labour like a child, and not a government in waiting, if we attend only to their good intentions and fail to ask how they will bring the bacon home.

HMRC currently administers tax credits, but they are due to be folded into the universal credit at some point in the as-yet undetermined future. Under the new Scotland Bill, Holyrood will be able to supplement this with "top up" payments to those who are already entitled to reserved benefits. Osborne's proposed tax credit cuts will come into force in 2016. A Labour administration in Holyrood seems unlikely to have access to HMRC's services. 

So who would administer the tax credit mitigation?  That notoriously streamlined, efficient, on-time and on-budget decision-maker that is the DWP? Who will bear any additional administrative costs?And what is a realistic timetable for implementing these plans? Could it be done immediately? That seems highly unlikely, not least because Kezia Dugdale's proposals to fund financial mitigation of tax credits will only come into effect in 2017 or 2018 on current projections - a year after the tax-credit changes may bite. We'll see. What is the transition plan, if any? Has anybody contemplated any of this at all?

An air of complete unreality has characterised much of the discussion of this proposal. The state doesn't turn on a dime. It doesn't matter a damn what the Scotland Act says, it the apparatus for realising its powers is not in place. A little contemplation, and a little look back on recent experience confirms this. Massive welfare schemes involving complex entitlements being applied to individuals in different circumstances can't be conjured out of the air. What is Labour's plan? Cast your mind back to 2010. Labour - understandably - did their dinger after Holyrood's tax-raising powers - effectively - lapsed. They remained on the statute book. Under the Scotland Act, MSPs could still vary tax rates. But in reality, HMRC wasn't in a position to deliver up a roll of Scottish taxpayers. 

Leap back another year to 2009. The failure to secure HMRC cooperation in the collection of the new local income tax scuppered the minority SNP government's plans. Bedroom tax mitigation was made possible by the infrastructure of local government discretionary housing payments, and big boosts to their budgets (but only after a lengthy period of petitioning the UK minister to change the rules to make it possible). What is the plan with tax credits? If the DWP can be persuaded to administer any changes, what is the probable time-table?

"We'll come up with something" just isn't good enough. It is complicated. Very well, it is complicated. That isn't a reason to abandon the whole scheme. But there has been no indication whatever that the new Scottish Labour leadership has even contemplated these questions before rushing out it tax credits pledge. The fiscal framework negotiations between the UK and Scottish Governments are still ongoing. These will be critical. All is in flux, constitutionally, fiscally, on social security policy. John Swinney's caution here seems eminently rational. Pessimism of the intellect and optimism of the will is generally a sound combination. All Kezia Dugdale has offered the Scottish people thus far on tax credits is optimism of the intellect, and optimism of the will. The "sunshine of socialism", I suppose. But when cold budgetary winds are blowing -- this is cauld comfort. A government needs its pessimism too. It keeps you grounded. It stops you making rash promises you can't honour.  

I am sure Kezia Dugdale's heart is in the right place, but the tax credit fait accompli she presented is as hollow as it is misleading. Many commentators seem perfectly content to nod along with this, declaring it a canny strategy which puts pressure on the SNP from the left. Mibbe. But if it does so, it is only because of the electorate's innocence about the distribution of power in our constitutional system, and the reluctance of our political analysts to take Kezia Dugdale seriously, and to ask her serious questions.  Some modest mitigation of tax credit cuts might be possible. If it can be done without creating an administrative monster, the Scottish National Party should seriously contemplate it.

But waving a blank sheet of paper, sans plan, sans scheme, sans any sense of the political struggles and trials which will beset your best-laid, best-intentioned plans? That isn't the "sunshine of socialism". It's a will-o'-the-wisp. 

The Little Engine That Couldn't

Choo, choo. At the risk of repeating myself, we really have to nail this one down: the Scottish Government does not have the legal power to take railways into any kind of public ownership. There aren't shades of grey here. There aren't knotty legal complexities. It is clear as day. Clear, apparently, to everybody except the new leader of the Labour Party. 

Interviewed by Gary Robertson on BBC Good Morning Scotland this morning, Jeremy Corbyn decided not to retreat from the inaccurate charges he laid at the door of the Scottish Government last Sunday. Instead, he chose to reiterate and elaborate on his allegations (from 02:40:00 in). And it is sorry, sorry stuff.

Robertson: "You also said on Sunday that they [the SNP] were behind the privatisation of ScotRail. Do you accept that that was wrong?" 

Corbyn: "No I don't think it was wrong at all, because I think - again - they could have taken a different option and could have pushed for public ownership rather than handing it over to the Dutch public." 

Robertson: "But that was about - again - that was about the franchise, wasn't it? Their argument is that in 1993, that was when ScotRail was privatised." 

Corbyn: "The franchise, yes. But I do think they had a choice, and they could have exercised it to ensure that ScotRail remained - or, er turned, rather - into full public ownership. Surely that would be a much better way of doing things. And indeed the Labour policy, overall, is to return the franchises and the rail operating companies into public ownership, so that we all get the benefits of the rail service and the profits that go with it."

This is a mess. Actually, it is worse than a mess: it is a sleekit politician's answer. And worse, I'm afraid, it is a lie. So let's strip it all back to basics. If Holyrood passes legislation which "relates to reserved matters", the law is void. If Scottish ministers act beyond their powers, they behave unlawfully and a costly and damaging trip to the Court of Session beckons. If we rummage through Schedule 5 of the Scotland Act 1998, which sets out these reserved matters, we find the "provision and regulation of railway services". Holyrood can't change the Railways Act of 1993. 

And it is the 1993 Railways Act which sets out the legal process for tendering rail passenger services. This was the instrument of rail privatisation - not the Scottish Government's October 2014 decision to award the new tender to the Dutch company, Abellio. Only Westminster can change the rules. And what do we find in section 25 of the 1993 Act? Oh look. A provision which says - clear as day, black and white - that "public sector operators" can't be rail franchisees. And how are we defining public sector operators? That is any company or subsidiary which is majority owned by ministers, or civic government. That test binds the Scottish Government. That seems to catch the kind of operation Mr Corbyn has in mind. 

The new Scotland Bill finally proposes to tweak the Railways Act to make it clear that, in future, section 25 will not "prevent a public sector operator from being a franchisee in relation to a Scottish franchise agreement." In future, a "people's Scotrail" will be possible, in Scottish Labour's campaigning phrase. This is well and good: a positive development which will allow the merits and demerits of a public sector bid to be explored during the next round of tenders. But on the 8th of October 2014, the Scotland Bill was a dim speck of light on the horizon. 

On the 8th of October 2014, Lord Smith of Kelvin hadn't even held his first meeting with party representatives to negotiate the next stage of devolution. There was no timetable to change the tendering rules, no legislative proposal being scrutinised. Just wooly aspirations, a Tory government and a Labour party dragging its feet on the future powers of the Scottish Parliament. Until the ink was dry on Smith, and the Bill had been introduced, it was anything but clear whether Holyrood would be empowered to consider the kind of public sector bid the new Labour leader understandably favours.

But don't believe me. I refer you to the analysis of Kezia Dugdale's predecessor as Scottish Labour leader, Jim Murphy, who blogged that he wanted to:

“... see better, cheaper public transport. The Smith Agreement means we can have a ScotRail that is serving commuters, not shareholders. The current ScotRail franchise sees money going straight from the public purse to shareholders pockets. The incoming one will see Scottish public money support transport infrastructure in Holland. Neither deal is the best deal for Scotland when commuters are waiting on late running services, paying over inflated fares whilst being squeezed against train doors on overcrowded journeys. The best deal for Scotland is a People’s ScotRail, a railway company whose commitment is not to a group of shareholders or a foreign Government, but to the people of Scotland.”

The merits of a public sector bid are one thing. But even the People's Scottish Jim for Scotland - not averse to throwing any old brickbat at the SNP - recognised that what he wanted to do with the railways wasn't yet legal. Even Mr Murphy declined to slag off the Scottish government for failing to do something which the law prevents them from doing. And yet, given a golden opportunity to clarify his remarks - in the interests of straight talking and honest politics - Mr Corbyn doubles down on his wrong-headed claims. 

So taking all of that into account, a few questions. In what sense, Mr Corbyn, could the Scottish Government "have taken a different option" on rail franchising? What "choice" of "full public ownership" did the law give them? Are you seriously suggesting that failing to convince the UK parliament to change the law amounts to an SNP privatisation agenda in all but name? Does that seem fair to you? Do you think most people, listening to your interview, would have understood this was really what you meant? Or do you think the half-attending average punter would be left confused and deceived by your remarks?

You began by suggesting the SNP privatised the railways. Now that has morphed into a claim that they could have considered a public sector bid, but failed to do so, which was bad. But a thorough examination of the law shows us that the parliament in which you sit made it legally impossible for Scottish ministers to entertain the public sector bid you desire. The Scotland Bill, currently going through the parliament in which you sit, underscores the point and fatally undermines your argument. So in what sense did the SNP privatise the railways? Oh dear Jeremy. Straight talking, honest politics my foot. 

I think I can, I think I can, I think I can, said the Little Engine That Could. But thinking doesn't make it so. 

"Straight talking, honest politics..."

A crib sheet can be a dangerous thing. Like the actor's prompt, they allow the harried speaker to cut corners and to maintain a superficial veneer of plausibility on an unfamiliar topic.

If you trust the person who has pulled them together for you, in their judgement and in their diligence, they can be gold -- just so long as nobody asks you too many searching or well-informed questions. But as everyone who has ever been obliged to mug up for an unfamiliar tutorial at short notice well understands, danger as well as security lurks behind these primers' superficially reassuring and well-honed lines and cues. 

Is this right? Up to date? Am I missing something important here? Like a rat in a pantry, such doubts can gnaw away at you, preying on your confidence, distracting you. And they ought to. You may well be peddling bullshit. Bullshit of the ripeness and heft we heard the sainted Jeremy Corbyn peddling on the Andrew Marr show this weekend. Against the charming backdrop of Brighton's cyan sea, Corbyn launched the first of what is likely to be a salvo of rhetorical exocets against the Scottish National Party. And Corbyn's comments were classic crib sheet work. Calmac, privatised. Scottish railways, privatised. Colleges, gutted. Local government funding, put to the sword. Much of this was straightforward fiction -- presumably pressed into the new leader's BBC briefing pack by Labour's Scottish operation. 

As any fule kno, the Calmac ferry routes are currently out to tender. No decision has been taken. To suggest otherwise is either an out-and-out lie, or a blunder born of cluelessness, indifference and slap-dash preparation. In Mr Corbyn's case, I'm still inclined to suspect a muddle rather than a fiddle. It is becoming increasingly clear that the Islington North MP has never contemplated UK constitutional politics in his puff. He couldn't give a ha’penny jizz about politics north of the Tweed. They've never troubled him before.

And now, Jezza is reduced to parroting attack lines written for him by someone else. It is pretty tawdry. He seems signally indifferent to Scotland. The concept of a united Ireland may stir his passions, but Corbyn seems listless and intellectually semi-detached on the question of our own united or disunited Kingdom. I don't hold this indifference against him. From his London borough, local politics and world affairs will have, understandably, seemed more pressing. But more is expected of the head that wears the crown. 

Today, his new shadow chancellor, John McDonnell, took to the conference stage in Brighton full of the same patter. In that gruesome, zombie phrase, McDonnell argued that Scots should "come home to Labour", which he suggested "is now the only anti-austerity party". All of which, to coin another phrase, seems pretty chuffing rich. Get back to us, John, when you can coax a few more of your colleagues into the Westminster lobbies actually to oppose the Welfare Reform Bill. You talk of a grassroots anti-austerity movement. Wouldn't it be spiffy if your green benches actually showed any enthusiasm for that cause? Are you seriously contending that only the views of your isolated, embattled and increasingly compromised Labour party leadership matters here? Forget the glum Commons faces, and the missing dissents? Spare me. But back to the boats. 

The Scottish Government is obliged to tender ferry routes under European Union law. To fail to do so would be to expose the Government to enforcement action from the European Commission. If Derek Mackay took to his pins in the Scottish Parliament, and gave a categorical pledge that the tendering process was a sham, and Calmac were guaranteed to win the contract providing link shipping to many of Scotland's islands, Calmac's competitors would drag Mackay off to an expensive and impossible to defend judicial review, almost certainly dooming Calmac's commercial bid for the contract. That may sit uncomfortably alongside the "save Calmac" agitpop, the hashtagging and the twibboning, but it is the law. Such is the price of the single market and European competition. 

Corbyn's case for the prosecution on railways is even more tenuous. He told Andrew Marr that the perfidious Nationalists "were behind privatisation of Scot Rail." Which is also straightforwardly untrue. As trainspotters everywhere know, the Railways Act of 1993 was the key instrument which enabled the UK government to distribute rail assets back into the private sector. At worst, Corbyn might indict the SNP government for failing to foster a public sector bid for the rail franchise, ultimately won by the Dutch company, Abellio. This is a long-standing charge which has been launched by Scottish Labour at Nicola Sturgeon's government for some months now. But there is crucial missing context here which dynamites the glib, schoolboy indictment the new leader guilelessly read out on Marr on Sunday.

A cursory inspection of the Scotland Act reveals - shock horror - that the "provision and regulation of railway services" is a reserved matter under Schedule 5 of the Scotland Act 1998. If you burrow down into the new Scotland Bill, you'll find a new clause 49, which makes it clear that the general reservation "does not prevent a public sector operator from being a franchisee in relation to a Scottish franchise agreement." Significantly, the topic was altogether missing from Scottish Labour's Smith Commission submission back in 2014, despite their noises-off grousing. But these changes aren't yet on the statute book. Legally, Holyrood cannot pass legislation which "relates to reserved matters". The courts could and would reduce any such legislation to ashes. 

The Scottish Parliament's powers are trussed up and limited by the devolution legislation. We may wish it were otherwise. We may wish that the Scottish Government had more autonomy over transport policy, and much else. But to indict the Nats for failing to do something which the law - passed by Westminster - says they cannot do? That's the politics of the playground. It is not, in today's Labour Conference's all too worthy slogan, "straight talking" or "honest politics". 

I have considerable sympathy with some of Mr Corbyn's views, and very little with some others. Nevertheless, I feel a twinge of instinctive - if paradoxical - protectiveness towards the party, watching the likes of John McTernan on BBC Daily Politics today, being granted a bully pulpit, almost entirely unchallenged, to crucify, flay and savage the leadership of his own party. It is grim.

By all means, challenge the Scottish Government. Question its performance. Advance different priorities. Name hypocrisy and backsliding and caution when you see it. Show me the soul who believes that any government leaves behind it a perfect record, and I'll show you a fool. But for crivven's sake, Jeremy, my rumpled companion, my bearded, tieless fellow traveller - take a little time to cast a critical eye over the gormless cribs elbowed your way by your comrades in arms. The snark is rising.