YouGov have a new Scottish poll in yesterday and today’s Times. Topline voting intention figures for Holyrood are CON 25%, LAB 15%, LDEM 6%, SNP 48% for the constituency vote; CON 24%, LAB 14%, LDEM 6%, SNP 39%, GRN 11% for the regional vote. The SNP obviously remain dominant, but the Conservatives are now in a very clear second place. Since the referendum Scottish voting behaviour appears to have been increasingly based on independence vs unionism – the SNP have recieved the overwhelming support of those who voted Yes back in 2014 (85% of them would give their constituency vote to the SNP in an election tomorrow). The Conservatives – the most unabashedly unionist of the Scottish parties – increasingly seem to get the largest share of those who voted NO. They are probably also helped by Ruth Davidson’s continuing popularity and that fact that they are the largest opposition party in Holyrood, so are in some sense the natural home for those opposed to the SNP government.

What it is probably isn’t is a continuation of Theresa May’s honeymoon. While May’s ratings are still very high in GB polling they’ve started to turn in this Scottish poll. 40% now think May is doing badly as PM (up from 22%), only 35% well (unchanged).

On the other leaders, Nicola Sturgeon’s ratings are down from the Summer, but still positive. 50% think she is doing well, 39% badly, a net rating of plus 11 compared to plus 20 in August. Ruth Davidson’s ratings continue to far outstrip her party – 49% think she is doing well, 24% badly. Looking at the crossbreaks it’s clear that there are some SNP supporters and a majority of Labour supporters who can think that Davidson is doing a good job without being tempted to actually vote for her party.

Moving onto Scottish independence there is still no sign of any post-EU Ref movement in favour of independence. Asked how they’d vote in a referendum tomorrow 44% would vote YES to Scottish independence, 56% would vote NO. While the change since the summer is not in itself significant, for the record it’s the first time since the IndyRef that YouGov have shown a larger lead for NO than at the referendum itself. I think we can now be confident that the EU referendum result in itself has not lead to any increase in support for Scottish Independence. When the details of Brexit start to become clear that may change of course, but only time can tell us that – the mere threat of Brexit has not been enough to make Scotland want out.

On the subject of Brexit, Scots are evenly split over whether they would support Scotland seeking to remain within the European Union if Britain as a whole leaves – 42% would support attempting to do so, 41% of people would be opposed. The majority think any such attempt would be unlikely to succeed anyway (or at least, would be unlikely to work unless Scottish independence has been achieved). 62% think it would probably not be possible, only 22% think it would be.

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162 Responses to “YouGov Scottish polling”

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  1. I think that Brexit will only push Scots towards Independence if it is really seen to be failing. If we continue to grow steadily and manage to negotiate a passable Brexit deal I think the status quo will continue in Scotland.

    The real question there long-term is whether unionist support will continue to coalesce behind the Tories and whether voters will begin to get sick of Nicola Sturgeon and the SNP.

    The two crucial groups are Remain-supporting Labour and Lib Dem No voters, on the one hand, and Leave and/or No voting SNP supporters on the other.

    If either of these groups shifts will dictate which way Scottish politics goes.

  2. Anthony

    “The majority think any such attempt would be futile anyway (or at least, would be futile unless Scottish independence has been achieved).”

    I think your parenthetical comment reflects your opinion that the Times’ questions weren’t very well phrased!

    What you have coalesced in your comment are 2 different questions –

    1. Would you support or oppose Scotland seeking to negotiate with the European Union to remain part of the EU after the rest of Britain leaves

    2. if Scotland is still part of the UK do you think it would be realistically possible for Scotland to remain part of the EU after the rest of the UK leaves

    The first question measures what respondents would like to happen. The second, the chances of it happening as part of the UK.

    Where I think you are wrong in suggesting that Scots think the attempt is “futile”. You have not one shred of evidence for that.

    It is perfectly reasonable (since it is my reasoned position! :-) ) to think that the chances of pulling off a separate Single Market membership are small – but it is a very worthwhile effort to make the attempt to achieve that status.

    Sorry, and all that, but your last para is palpable nonsense!

    [If I wanted to say something wasn’t well phrased I’d say it. I didn’t. But futile is indeed perhaps a bit strong – the majority of people think it’s unlikely to succeed if Scotland is part of the UK – AW]

  3. Surely the SNP constituency vote is 38%, not 28% as written above.

    One reason the Tories are doing well is that some of their MSPs are very Green and pro-renewables.

    [Indeed – it’s 28% – AW]

  4. Also worth noting that all the polls (I believe) leading up to May 2016 over-stated the SNP and understated the Conservatives by at least 2%.

    If that is still the case it would suggest the ‘real’ figure could be something like CON 27%, LAB 15%, LD 6%, SNP 46%.

  5. Stephen W

    Agreed that we don’t know how the Brexit process will affect things – until it ends (and that could be a very long time!)

    Also agreed that how voters (for all parties) align on the indy and EU fault lines will be important.

    For Labour, to be somewhat incoherent and ambivalent on both questions, suggests that unless they step one way or the other, they will fall into the chasm.

    The remaining LD voters seem virtually indistinguishable from pro-EU Tories. In a small number of seats (4?) they rather than the Tories will be the beneficiaries of the pro-UK/antiEU tactical vote – elsewhere it’s the Tories.

    Don’t ignore the Greens, however. As will inevitably happen at some point, the SNP will tire in government, and benefit from a spell in opposition. The Greens could be well placed to benefit from pro-indy folk wanting a change from the SNP.

    At Westminster (which YG didn’t poll on) I wouldn’t be at all surprised to see the Tories taking some SNP seats. At Holyrood, however, the question would be “Which party (or parties) do you want to see in Government?”

    I suspect that could mean an SNP led government for a couple of election cycles yet.

  6. On that polling it looks like Old Nat will be Older Nat or Very Old Nat before the Sturgeon summons enough courage to press for a referendum which will surely bring about her well deserved political demise.

  7. Anthony @ David Welch

    [Indeed – it’s 28% – AW]

    I know Scotland isn’t your area of expertise – but in the constituency vote it’s not 28% : it’s not 38% : it’s 48%!

    In the regional vote, it’s 39% because there’s an 11% Green vote. Increasing numbers intend voting SNP at constituency : Green for region.

  8. S Thomas

    I can understand your frustration at Sturgeon not holding a referendum that she thinks she would lose.

    It simply demonstrates (if any demonstration were needed) that she’s a damn sight better a politician than Cameron ever was.

    It also remains the situation where most of the rabbiting on about indyref2 from politicians understandably comes from the Unionist side.

    For the gradualist SNP, keeping it on the agenda is critical – we wouldn’t even have had devolution without that possibility. The timing is a matter of fine judgement.

  9. oldnat

    the benchmark you choose is IMHO not the highest to say the least.!

    The more time goes by the more he and his chums will be seen to have been reckless with the interests of the country.The referendum lay entirely within his hands to lose.
    Instead of concentrating on the puerile benefit issue for mass consumption he should have delayed matters and concentrated on 4 areas:

    .1. Revocation of the political union clause agreed by john Major;

    2. Restriction Of the ECJ jurisdiction to its pre-Maastrict/lisbon extent as far as UK concerned;

    3. EEA provisions for Internal immigration;

    4. City regulation

    and if he felt lucky EEA customs Union rules as well.

    He may not have achieved them but they would have looked like serious negotiations on serious issues and not seriously demeaning Britain by harping on about benefit scroungers.

  10. S Thomas

    It’s always good to find agreement with other posters.

    Cameron was incompetent. Can we also agree that so was Brown and that Blair was a vainglorious charlatan?

    As to other UK PMs – I thought Asquith was reasonable. :-)

  11. As always, peat worrier has an interesting poltico-legal commentary on the UK riposte to the Lord Advocate’s arguments –

    I had thought that the UK’s legal arguments were couched in somewhat unnecessarily “robust” terms. It seems that that opinion was shared by a number of legal experts –

    “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.”

    Experienced negotiators will recognise the situation that you have succeeded when your opponents descend to that.

  12. @Oldnat

    Funny, my experience of barristers is that tetchy, supercilious and ill-tempered is the almost universal norm.

  13. if that submission had been written by my junior i would have toned it down.i was surprised.It is as if i really wanted to rile the court!

    It also lays the groundwork for a future legal challenge. it quite rightly focuses on the fact that this appeal concerns the RP but leaves open a future challenge if legislation is (as it surely will be) required.

  14. Neil A

    “Funny, my experience of barristers is that tetchy, supercilious and ill-tempered is the almost universal norm.”


    Indeed that reflects my experience of lawyers in District, Sheriff and High Courts, when examining witnesses. But that is simply a technique.

    The sources quoted by Peat Worrier will have been in many more courts than me – or even you!

    What they are observing is a very different tone of argument being used by the UK’s lawyers than is normal in such appeal cases.

    Whether such a tone influences the judges at the Supreme Court one way or another will doubtless be debated among both the cream and sour milk of the legal profession, to determine whether that is a strategy worth copying – or eschewing.

  15. S THOMAS

    What’s the RP in this context?

    Received Pronunciation? Roleplaying? Registered Pharmacist?

  16. So the government response might almost be calculated to extend matters further?

  17. OldNat

    As a Labour supporter I am becoming increasingly fed up with the party’s ambiguous positioning on Brexit. Corbyn is not in a position to articulate a coherent stance and it makes him and the party look weak.
    I suppose he may be playing a longer game hoping that the Tories may hang themselves over Brexit.This remains a possibility. Only can only hope.

  18. Barbazenzero @ S THOMAS

    Well a Registered Pharmacist would be required to issue the drugs that Her Mjesty’s Advocate General for Scotland’s staff might have been on!

    I thought I was an inveterate cynic, but S Thomas has outdone me with her “It is as if i really wanted to rile the court!”

    If she is right, then Brexiteers might really have to start worrying about what May’s Government is actually up to with regard to Brexit.

  19. At the time of the Nissan “deal” I said that the Governmennt would need to declare a contingent liability to Parliament if the commitment could give rise to public expenditure. The Treasury Select Committee has now formally and publicly asked the National Audit Office to investigate whether any contingent liabilities have been created.

  20. he Supreme Court has issued its timetable for the appeal hearing and details of the submissions and its live feed

    S Thomas has outdone me with her “It is as if i really wanted to rile the court!”

    Indeed she has, and with that I fully concur.

    I still can’t find a definition of RP which might be apposite, though. The three I listed were from different dictionaries.

  22. HM Gov’s counter to the Scottish case on Sewel is to claim that it is an legally unenforceable political convention. Despite it being a *statute* since 2016,

    (I’ve regularly pointed out here that Sewel is now a statute of law not a convention, but it hasn’t seemed to sink in…)

    The argument seems to be that Parliament has gifted away it’s sovereignty to the Executive on Article 50, but certainly has not on Sewel.

    The thing is, the Executive does not have the power to over-ride the Sewel statute alone. That still needs an act of Parliament to decide. So then the Executive has to claim that it’s not really legislating, just regulating. But it’s already made the claim that actually it is legislating, but within the realm of ‘Treaty Law’.

    There seems to be a lot of having cakes and eating them too in HM Gov’s argument.

    It continues to be my opinion that Parliament will have to actively abridge the Sewel Statute to authorise Article 50. And that doing so would certainly prompt a Scottish response that could end in their independence.

  23. @Mike Pearce

    As a Labour supporter I am becoming increasingly fed up with the party’s ambiguous positioning on Brexit. Corbyn is not in a position to articulate a coherent stance and it makes him and the party look weak.
    I suppose he may be playing a longer game hoping that the Tories may hang themselves over Brexit.This remains a possibility. Only can only hope.

    Labour’s issue here their voters are quite split on Brexit.

    Go to Newcastle, Stoke-on-Trent and Middlesborough with a strong remain message and they are in trouble.

    Go to London constituencies with a strong leave message and they are also in trouble.

    A most difficult dilemma!

    I would add the positioning the Conservatives are struggling with is also tough.

  24. OLDNAT

    Thanks for the Supreme Court link. I hadn’t realised that the applicants’ cases are now also on the site.

    Particularly after reading HMG’s response, McCord’s case looks pretty good to me, with this summary from p2 of the McCord PDF:

    As will be set out in this submission, there are four contexts in which the binding nature of the Good Friday Agreement (‘GFA’) [NI-14] and Northern Ireland Act (’NIA’) can be viewed. Firstly, and quite simply, the GFA is a written constitutional document which any act of the Government or Parliament (including the NIA) must be consistent with, similar to the status of the constitution of any country with a written constitution. Secondly, the GFA is an international treaty binding in international law which has been incorporated into domestic law. Thirdly, the GFA is an expression of the de facto constitutional position of a devolved country with the recognised right to self-determination within a federal system where simple majorities cannot trump the rights and interests of minorities and states within the federal structure. (This argument is made independent of the rights and terms expressly set out in the
    GFA). Fourthly, the GFA can be viewed as a species of substantive legitimate expectation.

    Even if the Supreme Court are iffy about it, they’ll at least be concerned that the ECJ might consider the Belfast Agreement of constitutional significance.

  25. Perhaps May’s “concern” for the “precious union” in her early days at #10 will give her a “get out of jail free” card if the Belfast Agreement proves insurmountable.

    If so, perhaps UKIP and their predecessors should have been railing at the lack of an accepted written UK constitution before they turned their attention on the EEC/EC/EU.

  26. @jayblanc

    The statutory inclusion of Sewell Convention contains the very legally unusual word “normally”. The UK Govt case may turn on whether the word “normally” is justiciable or, as it says, simply a matter of judgement for the Westminster Parliament.

  27. HIRETON @jayblanc
    The UK Govt case may turn on whether the word “normally” is justiciable or, as it says, simply a matter of judgement for the Westminster Parliament.

    Indeed, but there is nothing in it to suggest that HMG could bypass Sewell without a bill to that effect passing in parliament.

  28. Regardless of Brexit, Sewel or any other current issue, it would seem that the current UK Government are trying [1] to establish a principle that – unless what the UK Government is trying to do has been specifically prohibited by Parliament, then there are few restrictions on it (as the Monarch)’s powers.

    Such a situation has been resisted in both England and Scotland for the last 350 years or so.

    [1] Or it may simply be ensuring that the ludicrous nature of such a claim should be exposed and rejected. If that is the case, then we might yet see the creation of a new saying –

    “Good cess tae ye Mrs May – ye ould Cromwell”. :-)

  29. @oldnat

    Everything seems to me to turn on the definition of the word “normally”. My understanding is that the Lords tried to remove the word, and failed.

    Are there any circumstances under which the courts would consider that a constitutional change to Scotland would not be “normal”, what are the parameters of that and does a UK wide referendum vote to leave the EU count.

    That seems to me to be the meat of what will be decided. I still believe that if defeated the government will amend the Scotland Act to “clarify” that “normally” doesn’t include things like Brexit.

    You are of the view that such an “interference” in Scottish affairs would doom the union and push the Scots to support Yes in Indyref2.

    That may be the case, but my own gut feeling is that the Scottish public would probably largely see such a move as an integral part of the Brexit process. Those who see Brexit as a reason to switch to Yes would do so (and will anyway). Those who would rather stick with the UK despite being Remainers will still do so. Those who are leavers are extremely unlikely to shift to remain in a fit of pique at such “interference”.

  30. @Oldnat

    On barristers.

    Yes in the criminal courts, where all but one or two people in the room are “beneath” them, barristers are probably a bit less respectful than in the exalted company of the higher courts. A class thing I suppose.

    I know that as a privately educated North London street urchin, I tend to Turn On The Toff when it comes to interacting with lawyers, and Turn On The Geezer when dealing with “customers”. It seems to work, by and large.

  31. Let’s make ‘normaity’ justiciable! It’s so much more fun that way!

    Old Nat and Anthony

    Your spat about the exact figures seems to ignore the real issue, which is, can the Tories possibly ever reach a critical mass such that the SNP is ousted from power? If not, with whom could the Tories possibly form an allliance? The LDs? Unlikely, I think after what happened in the last Westminster Parliament. SLab? Stranger things have happened, I suppose, but is it within the realms of imaginable possibility?

    It seems to me that the SNP’s problem now is that, until someone else is in power in Holyrood they and the Greens will be the only ones talking about the limits of the present settlement. Labour needs to return to power and find out the hard way (probably with a Tory govenment in Westminster) that the only way forward is a choice between Devo-Max and complete indedendence.

    As for S Thomas’s rather ridiculous idea that Nicola’s ‘demise’ will be ‘well deserved’, it is quite obvious that ST has no understanding of what Scottish political realities are. Nicola is still making far fewer mistakes than Theresa May, Jeremy Corbin or Kezia Dugdale. Nicola’s tenancy of Bute House will end only when someone else presents themselves as a sensible successor. So far, no candidates come to mind.

  32. Neil A

    “You are of the view that such an “interference” in Scottish affairs would doom the union and push the Scots to support Yes in Indyref2.”

    You exaggerate my position to the extent of misrepresenting it!

    What I do suggest is that, should the Supreme Court uphold the UK Government’s stance, that would remove any doubt that the UK’s constitutional position is that the UK Government can bypass, ignore, or overrule any decision by the Scottish Parliament, simply on the basis that it has decided to do so.

    It may not affect VI immediately, but it does expose the arguments of many Unionists, about the security of the devolution settlement, as a terminological inexactitude (though many of them have believed it to be true).

    There may be no indyref2 any time soon – that will depend on how Brexit works out, and how Scots react to the situation.

    However, there will be other circumstances in the future, and a decision by the highest UK court that the protections that Scots thought they had are but fig leafs hiding Westminster’s naked ambition would play in that future.

    The SNP have been playing “the long game” for years now. Accretion of powers to Holyrood has been vitally important – and reasonably successful. The Greens are newer to the process, and a little more impatient for “independence within Europe”.

    The Brexit crisis is a very recent phenomenon in Scotland, compared with the much more substantive question of our relationship with our much larger (and seemingly increasingly isolationist) neighbour.

    The legal argument that the UK Government has chosen to deploy has the potential to weaken faith in Westminster’s probity yet further.

  33. @Mike Pearce

    As a Labour supporter I am becoming increasingly fed up with the party’s ambiguous positioning on Brexit. Corbyn is not in a position to articulate a coherent stance and it makes him and the party look weak.

    I emailed my Labour MP and Labour MEP, seeking their views about Brexit. This was about two weeks ago. Neither replied which I guess is unusual for MPs/MEPs as usually they have a standard letter ready for such emails and send it more or less by return of post. In their case, however, I guess they are in a very difficult position, Both campaigned strongly for remain and the local vote was was 70 per cent remain. However both accept that it is politically impossible to simply reverse the referendum. Having listened to them talk I don’t think that either can see any possible deal that would be other than bad for the UK. So their problem is not just political divisions in the labour party, but a genuine difficulty in seeing what negotiating position we should adopt.

  34. Neil A

    tend to Turn On The Toff when it comes to interacting with lawyers, and Turn On The Geezer when dealing with “customers”

    In my business it’s known as “using the appropriate register to communicate effectively”!

    When interacting with other professionals, I used Standard Scots English. When talking to Scots speaking kids and parents, I used Scots.

    Yes, there can be a class bias in which register is appropriate – though more in urban areas, but being comfortable in all registers helps a lot. Otherwise, the “customers” might think (probably rightly!) that they are being talked down to.

  35. @Barbazenzero

    If I were making judgement in this case, it would certainly be my opinion that “Not Normally” in statue means that in cases of declared emergency legislation outside the normal operation of parliament. Brexit may be ‘unusual’ but it is not outside the normal operation of parliament.

  36. @bz

    Surely the whole point of “normally” is so that legislation is not necessary, hence its inclusion?

  37. @Oldnat

    Surely the existence of that word “normally” in the act means that it is the intention of parliament that sometimes it will overrule the wishes of the Scots parliament.

    Do you not agree with that?

    So to do so on one occasion doesn’t at all mean that the UK parliament could or would ride roughshod over the Scottish parliament on a whim.

    To some extent I’d have thought that clarification of that word “normally” would be welcome to Scotland, as it would provide protection from exactly that which you suggest. By defining even loosely the circumstances that would be “normal” would place those circumstances outside the ability of the UK parliament to dictate to Scotland.

    I’d say there is a pretty good argument for saying the Brexit referendum and the question of leaving the EU is not a “normal” situation. If it is, then crikey an awful lot of fuss and bother has been wasted on it! I am more used to hearing expressions like “catastrophe”, “exile”, “complete break”, “unprecedented”, “exile” etc.

  38. I also think that even if the House of Commons were to pass emergency legislation to allow the passage of A50, over-riding Sewel and Good Friday… The Lords would be likely to refuse on the basis of it triggering a constitutional crisis between the Union nations.

  39. @Neil A

    Unusual is not the opposite of Normal.

    A broken arm is an unusual occurrence to an individual, but it is not out side of normal practice for a Doctor. Wide loads requiring an escort are unusual on the roads, but there is normal regulation covering them.

    Brexit is unusual, but it is not outside the normal competence of Parliament to make decision on it.

    I find it very unlikely that the Court will allow the Government to define ‘Not Normally’ in anything other than a very narrow definition of emergency legislation.

  40. Neil A

    “Surely the existence of that word “normally” in the act means that it is the intention of parliament that sometimes it will overrule the wishes of the Scots parliament.”

    While I’m interested in law – and as a historian I’ve had to read a lot of it – I’m not competent to rule on the legal meaning of that strange word in a statute

    The more relevant aspect is the claim by the Advocate General that the definition of “normal” is entirely the prerogative of the UK Government

    If that definition is upheld by the SC, then the UK can choose to bypass the need for LCMs on any issue at any time, at any point in the future.

    While Brexiteers are focussed on any possible block to their somehow, in some way, at some time leaving the EU to some extent or other that the UK Government may 9or may not) negotiate with other EU members, there are other serious issues being raised at the SC.

    They centre round how the constitution of the UK actually works, and the relationship of the devolved administrations with Weastminster.

    I understand that Devonians (native or immigrant) may fail to understand how important that is. But then you are content to let the 3 richest areas of the UK (London, SE Eng, and Scotland) get most of the economic activity, consequently also the wealth, without getting the funding transfer for economic development that any reasonable federal system would provide.

    So you get what you voted for!

  41. @Jayblanc & Oldnat,

    Doing a bit of Google-Fu to try and understand the Sewel convention a little better, and came across this section of a House of Lords report from 2015 about the proposals to create S28(8). (Full text at

    70. Draft Clause 2 would fulfil the Smith Commission’s recommendation that “The Sewel convention will be put on a statutory footing”.[72] Section 28 of the 1998 Act gives the Scottish Parliament the power to make laws; it currently concludes with section 28(7), which confirms Parliament’s enduring power to legislate even in devolved matters: “This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”.

    71. Draft Clause 2 would introduce a new section 28(8), which would read:

    “But 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.”

    72. Although in this way the Sewel convention will be put on a statutory footing, the measure seems to have only symbolic significance, consolidating the idea that Scottish devolution is a permanent arrangement, the terms of which will not be changed unilaterally by the UK Parliament. Aside from the general rule that Parliament is unable to bind its successors (see paragraph 59 above), the use of the word ‘normally’ (which is unusual in legislation and is undefined) seems to make clear that Parliament will still have the legal power to legislate for Scotland, even on devolved matters, without the consent of the Scottish Parliament. Therefore, it can be said that the new provision will recognise the existence of the Sewel convention rather than turn it into a legally binding principle.

    73. Nonetheless, since this provision will at the very least strengthen the political commitment inherent in the Sewel convention, it can be said that the powers of the Scottish Parliament would be, in political terms, more firmly beyond the unilateral competence of the UK Parliament than ever before. Professor Keating told us that the division of competences between layers of government and the recognition of that division were central to federalism and he felt that the UK now has “some kind of federal system”.[73] It could be argued that Draft Clauses 1 and 2, in political terms if not legal ones,[74] are moving the United Kingdom in a federal direction.

    74. Others argued that this was another step towards an overall legalisation of the UK’s constitution.[75] Hugh Rawlings, Director of Constitutional Affairs in the Welsh Government, told us that “as a result of the Smith Commission we seem to be moving towards greater legalisation of the UK constitution … are we, as appears to be [the case] at the moment, perhaps looking at legalisation of particular aspects of the constitution without regard for wider issues?”[76]

    75. Although it may have little, or no, legal effect this draft clause would risk introducing a perception that the validity of laws passed by the UK Government would be justiciable should they contravene (or be argued to contravene) the Sewel Convention as set out in statute. It is extremely unlikely that any attempt to challenge legislation in the courts on this basis would succeed[77] in the light of Parliament’s enduring sovereignty and the fact that the passage of legislation itself is protected from judicial interference by parliamentary privilege.[78] It is nonetheless possible that a challenge might be made, drawing the courts unnecessarily into an area that has hitherto worked well on a conventional basis. This clause is also among those that the UK Government has proposed should be repeated in legislation relating to Wales.[79]

    76. As with Draft Clause 1, Draft Clause 2 seems unlikely to have any legal effect and is purely a declaratory statement of intent, restating the existing Sewel convention rather than attempting to make it enforceable.

    The conclusion seemed to me to be that the Sewel convention doesn’t not legally prevent the UK Parliament from having it’s way, but is intended to make this politically difficult (but not impossible).

    Wouldn’t the courts be likely to uphold that principle?


    As a Labour supporter I am becoming increasingly fed up with the party’s ambiguous positioning on Brexit. Corbyn is not in a position to articulate a coherent stance and it makes him and the party look weak.”

    Corbyn is a weak leader – it’s as simple as that. He has the backing of the hard left and he hopes that will be enough to see him through in 2020 but it doesn’t look good so far. I hope that Labour MPs will ignore him and vote in mass against article 50 when the vote happens in parliament – as I hope it will.

  43. I’m sure that the politicians thought they were being very clever by putting in “not normally”. It’s just that they never considered how a court would actually decide to view it.

    There’s a principle of law at play here… “Contra proferentem” which basically says that if you draft something with ambiguous meaning you don’t get to later define that meaning in your favour.

    And further to that, there is a legal understanding of what ‘normally’ means – ‘that state wherein any body most exactly comports in all its parts with the abstract idea thereof, and is most exactly fitted to perform its proper functions, is entitled “normal.”‘ In practice this means ‘following regular lawful operation’.

    The Executive is not allowed to step outside of regular lawful operation. Parliament may well be able to pass emergency legislation to allow them, but again constitutional crisis, dispute in the lords, break up of the union…

  44. sorry for the “doesn’t not” double negative. “Does not” was what I meant to write.


    “Labour’s issue here their voters are quite split on Brexit.
    Go to Newcastle, Stoke-on-Trent and Middlesborough with a strong remain message and they are in trouble.
    Go to London constituencies with a strong leave message and they are also in trouble.”

    Indeed, and this is why party should make a moral stand and go for the right but not necessarily popular choice. Miliband, despite his many faults, would have done so. Instead Corbyn is playing ‘safe’ by backing leave in the expectation that the south is not worth fighting for as it’s not fertile ground for Labour anyway. This will simply help the Lib-Dems come back as the main challengers to the Tories in the south – and I expect they will despite the low support in the polls.

  46. And yes, I think it is clear that Parliament could pass emergency legislation that abridged Sewel and Good Friday in order to pass an A50 authorising act.

    But since the Government clearly don’t want to try doing that, I think they don’t have the votes to get it through.

  47. Neil A

    “The conclusion seemed to me to be that the Sewel convention doesn’t not legally prevent the UK Parliament from having it’s way, but is intended to make this politically difficult (but not impossible).”

    You may be right (or not) in that interpretation. However, fortunately we have a court system that means that judges make the final determination on what the law means – not policemen or retired history teachers!

    I have not suggested that the SC will necessarily uphold the Lord advocate’s contention – or reject it.

    Whatever conclusion they come to will, however, have a political effect in Scotland (though probably just exasperated incomprehension in Devon).

    If the Sewel Convention and the statutory provision in the Scotland Act 2016 are deemed to be matters that Westminster can ignore when it feels like it, that has one consequence.

    On the other hand, if “normally” is rule to mean something like “conditions similar to an asteroid strike or foreign invasion” then the consequences are different.

  48. On Nissan again, apparently Hammond wrote to Andrew Tyrie , chair of the Treasury Committee, yesterday confirming that the commitments will give rise to Government expenditure but it will be contained within the Business Department’s public expenditure provision and have not given rise to “new contingent liabilities”. The Government also refused a separate FOI request to release the letter to Nissan on grounds of commercial confidentiality. Tyrie’s request to the NAO followed Hammond’s letter which suggests he and the committee want its assurance on contingent liabilities to be independently verified.

  49. Hireton

    Presumably, if the “commitments will give rise to Government expenditure but it will be contained within the Business Department’s public expenditure provision” then other businesses will be denied the expenditure that they would have got?

    Employees in those businesses might be rightly concerned that their future could be sacrificed to the UK Government’s intention to salvage what they can from the wreckage of Brexit.

  50. It’s that time of the month again where @TOH jumps in steals my thunder, posting the good news from the latest manufacturing PMI data, and conveniently forgets to add the bit about the continuation of the record levels of input price inflation following the brexit devaluation.

    Meanwhile, @Jaspar22 posted the slightly barmy –

    “Today’s immigration numbers mean that a total divorce from the EU is now inevitable.
    No Single Market, no EEA, no Customs Union.
    The Leave voters will demand nothing less than full control of our own affairs in the kingdom.”

    The figures actually show more immigration from non EU countries than from the EU. Indeed, if the government had used their powers to end immigration from outside the EU, we would have had net migration of just 46,000.

    People like @Jaspar22 need to start to think about why leaving the EU would make a blind bit of difference to migration, when their government avoids tackling the bigger half of the immigration issue, despite having every power at their disposal to do so.

    Today should really have been one of those days when it starts to dawn on the 51.9%. The government knows we will need to pay into the EU at some level, and leaving won’t make a blind bit of difference to immigration. We even have the Brexit minister tonight admitting that labour shortages won’t help anyone, which is precisely the reason that non EU migration remains at nearly 300,000pa.

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