Some thoughts on: Common Good Property and Funds; and Community Engagement

On 8 February 2017 The Local Government and Communities Committee of the Scottish Parliament launched a call for written evidence in relation to “common good property and funds”. This closed on Wednesday 22 March 2017 and the 18 responses it garnered can be found here.

I did not put in an individual response. I had a very small role in relation to the response (PDF) put in by the Law Society of Scotland (and my role really was very small – the draft response was passed to me in advance for comment and I offered a couple of thoughts, but the draft was largely unchanged at submission). Of the other responses, the joint response (PDF) by Fife Council and the Society of Local Authority Lawyers and Administrators in Scotland deserves a special mention, penned as it was by Andrew Ferguson (the author of the core text in this area). I also enjoyed Neil King’s response, which he has posted on his blog.

One of the points I did ponder that did not quite make it into the Law Society of Scotland’s response related to access to justice, especially as community instigated challenges in this area might (as the law stands) face the hurdle of judicial review at the Court of Session. There are cost and Edinburgh-centric issues in raising such an action, which could be as much of a headache for some communities as any quirky common good issues (say uncertainty around disposal conditions relating to items of property) would be. Where an environmental angle could be found, perhaps in a situation where the use of sensitive land was at issue, communities might be able to shoehorn into the Aarhus Convention side of things, but otherwise communities would need to consider potentially hefty legal bills for probing legitimate issues. I am happy to note that these points have been developed a little in the Fife/SOLAR response by Andrew Ferguson that I have already referred to.

What comes next? I suppose we wait to see what the Committee says. In the meantime,  a Scottish Government consultation which has opened today, this time triggered by Part 4 of the Land Reform (Scotland) Act 2016,  is of more than passing interest.

Section 44 of that legislation is about “engaging communities in decisions relating to land”. This related consultation exercise will, in due course, frame guidance that is to be issued about “the circumstances in which persons with control over land (for example, owners and occupiers) should carry out community engagement”. There is no carve out for local authorities, so the guidance as to engagement that should be undertaken in terms of the 2016 Act will run alongside any other duties a local authority owner of common good property will find itself under (in terms of section 104 of the Community Empowerment (Scotland) Act 2015). Mind you, it should be stressed that this new guidance will be for all persons with control over land. As such, the responses to that consultation, and the Government’s response to those responses, will be of more than niche interest.

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The Scottish University Law Clinic Network: 2017 Update

As some readers of my blog will have noticed, I am involved with an initative called the Scottish University Law Clinic Network. SULCN, as explained elsewhere, is designed to bring together those involved in “pro bono” (see below) legal activity across the Scottish universities. Its next event will be on 7 June at Glasgow Caledonian University. The programme is under development and is coming together nicely. You can read a bit more about participants here, including: legal commentator and GCU lecturer Andrew Tickell (aka Peat Worrier); and the law firm Blackadders.

Throughout my involvement with student pro bono work, Scottish Legal News has been a supporter and follower of the individual law clinics and any joint activities that have been undertaken. I am pleased and grateful that this has continued in the recent Scottish Legal News Annual 2017, a hard copy publication that is also available online here.

At page 84 of the Annual you will find an article by and about Strathclyde Law Clinic.

At page 86 of the Annual you will find an article by me about SULCN.

With the permission of Scottish Legal News, I have extracted the text of that article below. Please do have a look and, as ever, let me know what you think or if you have any suggestions.

Before setting that article out, I will take advantage of this blogging platform to set out a bit more about what SULCN has been up to. I explained in an earlier post that SULCN’s activities could be roughly boiled down to:

  • Five events across Scotland (see below);
  • a Twitter feed that publicises what law clinics are up to individually and shares interest stories;
  • occasional referrals and information sharing across Scotland’s law clinics.

To that I can add one recent activity, which I will tantalise readers with then not say much about, which was co-ordinating a clinic-wide response to a regulatory matter.

To engage in some reflection, which is something I encourage my students (and particularly clinical students) to do, it might be the case that all of these things could have been achieved without the SULCN brand. That may be so, but I do think it has been a useful vehicle for meeting people at other universities and beyond. How useful is impossible to quantify. SULCN does not maintain a running total of monies won or saved for clients, or record what clinics have done after discussions with others in the sector. What is clear is it has: engendered collegiality amongst the university communities; proven to be a useful conduit for communications; and given a focal point for brainstorming and publicity through its annual conference.

Without further ado, here is the article that I wrote for Scottish Legal News.

Scottish Legal News Extract

The Scottish University Law Clinic Network (SULCN) is an initiative that brings together, and raises awareness of, student law clinics in Scotland. It was developed by law students and launched at the University of the West of Scotland in 2012. Since then it has held conferences at the universities of Strathclyde (2013), Edinburgh (2014), Aberdeen (2015) and Glasgow Caledonian (2016).

Readers of Scottish Legal News are likely to be aware of law clinics: some may have volunteered for them as students or as qualified supervisors. Law clinics across Scotland use the enthusiasm and skills of law students, supported by academic staff or other supervisors, to make an impact in their local communities “pro bono publico” (for the public good). They address access to justice problems across society in a variety of ways, including:

  • advice and (where possible) assistance to resolve legal problems where alternative support is not available, such as when someone is not eligible for legal aid but is not otherwise able to afford professional legal advice;
  • public legal education to allow people to help recognise when they have a problem with a legal solution, gain the knowledge to resolve their own problems or (ideally) to avoid a legal problem in the first place;
  • campaigning for appropriate law reform where the legal system creates barriers to accessible and fair legal solutions; and
  • introducing law students to issues of social justice and ethics early in their educational development, in the hope that they will take a commitment to social justice and high legal standards forward into their legal careers. 

Whilst students and staff do all they can to assist, they are aware of their role and limitations and are willing to work with alternative support services and the pro bono arms of the profession. The educational stage of the students also means any support or training offered will be given subject to a suitable disclaimer about that educational stage. Clinics operating on this basis will balance a number of potentially competing considerations, and in so doing allow students to make a positive (if incremental) difference to access to justice in their local community, whilst engaging in professional and ethical development, all in a manner that should not impose on qualified practitioners trying to make a living.

The law clinic landscape in Scotland is such that these services are offered at a local level, centred in the cities of Glasgow, Edinburgh and Aberdeen (where clinics currently operate), though some law clinics now offer online services in order to spread their geographical reach. SULCN does not involve itself directly with those activities, but it provides a forum to share and showcase ideas amongst like-minded students, academics and supporters. It also supports the establishment of new law clinics where that is appropriate and helps existing clinics make decisions about future directions and activities. All clinics are faced with different circumstances and choices, and SULCN members engage in research and organise events to help law clinics best adapt to those circumstances and make appropriate choices. In fact, those themes were discussed at the conference at Glasgow Caledonian University on 8 June 2016. Those, and more, themes will be returned to when SULCN returns to Glasgow Caledonian University for its sixth annual conference on Wednesday 7 June. There are also plans afoot for a “hackathon”, to develop novel solutions to access to justice problems in society.

If any of this is of interest to you, please do get in touch. The current Chair of SULCN is Malcolm Combe (of the University of Aberdeen), who can be reached at The network is on Twitter at @SULCN and online at

SULCN logo

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Brexit and #indyref2: now what?

If there is one thing Scotland does not need today, it is another hot take on First Minister Nicola Sturgeon’s #indyref2 announcement. As such, I will keep this post short.

The speech by Sturgeon today, in both tone and content, was something I found difficult to fault. Now, as a Yes voter in 2014 and Remain voter in 2016, I would say that, wouldn’t I? Probably. Standing that, it did chime with much of what I wrote about #indyref2 earlier this year, and the trigger event for this referendum is one I wrote about in the aftermath of the 2014 referendum.

There are, of course, a few questions to resolve. In no particular order, and non-exhaustively, I offer:

  1. What are the legal and political ramifications of whether or when Theresa May’s UK Government will consent to a referendum, after the inevitability of Holyrood mathematics pushes #indyref2 through the Scottish Parliament?
  2. When exactly in the Brexit process will the referendum fall? (In another episode of life imitating art, the satirical website The Daily Mash summed up the optimum scenario for Scottish independence pretty accurately.)
  3. What will the #indyref2 franchise be?

Bodyswerving the known unknowns in my question 1 for now, I will offer a combined observation on questions 2 and 3.

Having a referendum before Scotland leaves the EU strikes me as not only important to open up the opportunity of Scotland (in effect) never leaving the EU, but it is also pretty important for reasons connected with the referendum franchise. EU citizens (and, for that matter, 16- and 17-year-olds) were able to vote in the 2014 indyref but not* the 2016 EUref. The electorate in Scotland was still 62% Remain notwithstanding that exclusion. If that voting bloc is included in a plebiscite which: a) determines whether the place where they live stays in a political union they identify with; and b) offers a chance to express an opinion that the 2016 EUref did not, one can but imagine which way such a bloc would incline. (I would love to see some polling data on this.) For what it is worth, and for reasons explained by my colleague Dr Heather Green better than I can (under the heading “Comment“), I am all for those in this voting bloc having a say in a decision affecting the place they call home.

That is my tuppence worth. Assuming that the tuppence is the currency we will be using, of course.

*Not all EU citizens were excluded. Irish, Cypriot and Maltese citizens were able to vote on grounds unconnected to EU citizenship.

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Land Rights and Responsibilities Statement: A Consultation Response

I submitted a response to the Scottish Government’s Consultation (PDF) on the Land Rights and Responsibilities Statement today. This Statement is provided for in Part 1 of the Land Reform (Scotland) Act 2016. You can find my response here (PDF).

Despite this topic seemingly falling squarely in my research interests, I almost did not respond to this exercise. In her excellent post on the topic, Dr Frankie McCarthy of the University of Glasgow explained her reservations about responding to this consultation. I do not have much to add to her reservations. I suppose the two factors that made me succumb to the consultation exercise and respond were: a) the fact that I plan to host an event at the University of Aberdeen’s May Festival on Friday 26 May which will touch on the Statement; and b) some direct encouragement from someone involved with the Scottish Government to participate in the exercise (you know who you are).

I will let my response speak for itself rather than set it out again in detail here. For those skim readers seeking edited highlights without clicking to a PDF, it is quite difficult to object to much of what appears in the proposed Statement: it is not quite the land reform equivalent of motherhood and apple pie, but it is difficult to imagine too many people being able to cogently argue against the thrust of the Statement. There are some potential issues though, and I do wonder how expectations will be managed to stop people feeling disgruntled if (when?) decisions are made relating to land that do not measure up to the aspirational Principles of the Statement.

The consultation exercise finishes tomorrow. I hope my own response is of interest, both to readers of this blog and indeed to the Scottish Government. I have probably left it too late for anyone to plagiarise from my response, but by all means do so if you find something of interest in it. Alternatively, if you disagree with me and/or think I have said something daft, please do let me know. (Although it is too late to stop me looking daft in my submission, as that is already in.)

Posted in Land Reform, Property | Tagged , , , , , | 1 Comment

On Research Leave

In a recent post, I flagged that I was about to begin a period of research leave.

That is not the most important thing that is going on in the world right now. Neither is this post the most important thing you will read today. What this post is for is to set out a bit about my own plans and air some of the things I want to look into, whilst setting up something for me to reflect on in due course. I hope it is not too Malcolm-centric for readers, but hey, it’s my blog and all that.

This is my first such sabbatical from teaching and administrative roles since I began my full-time academic career in 2011. I am looking forward to it. I am also a bit apprehensive, in that I need to prove to myself that I can still do some hardcore research. I also need to repay the faith others have shown in me by producing some solid output.

That faith is manifested in at least two ways.

First, a variety of my colleagues have picked up some of my workload. I have done this for colleagues in previous years, for sabbatical cover and also for staff absence for not-so-programmed reasons. I suppose this is part of the academic circle of life, but I am no less appreciative of it. (In fact, I should acknowledge colleagues have also done this for me when I was on medical leave, and bizarrely that period of “sabbatical” was relatively productive for me in terms of published output, at least when I was not distracted by treatment: maybe I do not need to be worried about my capacity to research and publish after all.)

Second, I am fortunate and very grateful to have received some funding in the form of a  Research Incentive Grant from The Carnegie Trust for the Universities of Scotland.

In a spirit of open access and public engagement, I would be happy to share some of the details of my application if anyone is interested, but I do not want to jump the gun and divulge anything in public before it is appropriate to do so. It might be the case that a link to successful grants or excerpts thereof will be made available on the Carnegie website: if and when that happens I will link to it here.

What I will say is that the scheme allowed applications for up to £7,500 and I did not apply for the full amount.

I applied for funding to look into (yup, you guessed it) land reform. In addition to ongoing general analysis of land reform and community empowerment legislation, I wish to look specifically at abandonment of property, which I think sits nicely at the nexus of private property rights and the public good. The word “abandonment” appears in the Community Empowerment (Scotland) Act 2015, as a potential trigger for community acquisition of land. Suitably formed community bodies will soon be able to force a sale when land is “wholly or mainly abandoned or neglected” (and, for that matter, when land has been environmentally mismanaged). The word “abandoned” is not defined in the legislation. The concept and the right (or wrong) of abandonment is already an aspect of Scots property law though, in that an owner of a thing can (seek to) walk away from that thing. That is not the full story though: recent case law relating to sites where coal has been extracted is to the effect that it is not possible to simply disclaim any involvement with such land.

I think those two treatments of abandonment are worth further study. Abandoment also crops up (pun intended) in other areas of law, such as crofting. There are duties of a crofter (whether as a crofting tenant or as an owner-occupier crofter) relating to the use of land and a proximate residency requirement which have certain commonalities, I think, with a wider public goal of not allowing land to lie fallow. There are other areas I plan to look into, and there may be others I have not considered: do please offer a comment if you have any thoughts.

So how will my grant money be applied? The better part of the grant itself is being applied to fund some research assistance at the University of Aberdeen. Some money is earmarked for materials for our law library. The remainder is being applied for a five-week trip to South Africa, specifically Stellenbosch University.

Why South Africa, and why Stellenbosch? On the former, South Africa has a similar “mixed” legal system to Scotland and has been used as a comparator for aspects of private law before. It also has a contemporary programme of land reform, albeit with a very different social, economic and historical background. I have engaged in some desk-based research about this before. I hope an actual trip will add further insight. As for Stellenbosch, there are some existing links (in terms of staff relationships) between that university and the University of Aberdeen, which is handy. Moreover, there is real expertise in property law and land reform there: this monograph written by a Stellenbosch professor being printed evidence of that. All going well, I will be there for some of April and May. I plan to blog about the trip in due course, so I will leave the analysis of that aspect of my research leave at that for now.

Of course, a sabbatical does not completely remove someone from circulation. I will still be around and some tasks still need to be attended to. Plus, I need to try to juggle the need stay active as a commentator without becoming a complete hermit, but also giving myself enough time to engage with research properly. All of this has been evident in what I have been up to during my research leave to date. My January was essentially filled by tidying up my teaching and admin duties, being involved in our internal postgraduate Client Consultation Competition then the equivalent Scottish Client Consultation Competition (which, incidentally, Aberdeen won this year – yay!), meeting a publishing deadline to deal with editor and peer-reviewer comments on a chapter I submitted to an edited collection on community property rights, and one or two other miscelleneous things like this outreach event. February has involved further bitty tasks, and the completion of a book review (more on that if and when I hear from the publisher). Hopefully I can fully engage with my “new” research soon, once I have finally burnt everything that was in my back-burner, but there are still some other things I remain involved with, such as the Scottish University Law Clinic Network and its conference on 7 June, ongoing involvement with Aberdeen Law Project, and a few land reform type events. In relation to the latter, if you can be in Aberdeen on Friday 26 May, the plan is for me to be hosting a discussion with the Chair of the new Scottish Land Commission as part of the University of Aberdeen’s May Festival.

That is enough for now, I think.

Now, time to roll up my sleeves and do some research and non-bloggy writing…

Posted in Academia, Land Reform | Tagged , , , , , | 2 Comments

Community Empowerment and La Banda Europa

On 28 January 2017, there was a community engagement event involving the musicians and friends of La Banda Europa at the Platform Arts Centre in Easterhouse. This brainchild of Jim Sutherland crescendos with a performance at the Royal Concert Hall in Glasgow tonight, as part of the Celtic Connections festival.

I am a director of the company behind this project, La Banda Limited. The nature of last night’s event was a bit of a free for all, in a good way. Given the eclectic nature of the night and its community outreach feel, I offered to say a few words on some of the community empowerment things that are going down in Scotland at the moment. Here is a rough note of what I said.

I appreciate the subject I am about to say a little bit about – property law – is not always the most entertaining, so I won’t take up too much of your time. I also don’t want to get in the way of tonight’s fantastic music. But I hope the few words I do have to say will be of interest.

My name is Malcolm, I work at the School of Law at the University of Aberdeen, but I have been part of La Banda for a few years now. I was also, three years ago, involved in something called the Land Reform Review Group, which looked at land law and policy in Scotland. That group was formed by the Scottish Government because some people think land ownership in Scotland is too concentrated, or that the power balance between landowners and others is not quite right.

My accent is a little quirky by Scottish terms, my mother is from the Western Isles, and believe it or not land raids took place there roughly 100 years ago, after World War I.

People in Scotland often associate land issues with the highlands and rural Scotland, but that would not be the whole story. I went to uni at Strathclyde, in Glasgow, and grew up nearby, in Kilbarchan. Have any Glaswegians here heard of Mary Barbour? She was born in Kilbarchan. She was a radical who, around World War I, mobilised the people, particularly the women, of Glasgow against opportunistic or perhaps even money-grabbing landlords.

Why am I telling you this? Well, a night like tonight and a show like tomorrow is a great example of social or cultural infrastructure coming together; but that is no good if you don’t have physical infrastructure. That is to say, if you don’t have somewhere to put it. We are lucky tonight to be at the wonderful Platform arts centre at The Bridge in Easterhouse, but what happens to those that don’t have access to such facilities?

In Scotland, we now have a number of different ways communities can acquire assets under “land reform” and “community empowerment” legislation. Less than a week ago, rules about “community asset transfer requests” came into force.

Communities now have a few strings to their bow if they don’t have local assets but want to get them.

Communities can now identify private land and buildings to get “first dibs” or “first refusal” in relation to those assets. That is thanks to something called the Land Reform (Scotland) Act 2003.

This is not restricted to rural areas, since last year this has applied in urban areas too. For example, a group in Portobello in Edinburgh has registered interest in an old church.

Communities can also now ask a local council to transfer assets to it and the council must weigh that up fully.

Soon, there will be powers in relation to land classed as neglected or abandoned, to compel a sale.

What about money and support? That is obviously important, and something called the Scottish Land Fund helped finance the acquisition of a boxing gym in Barmulloch, not too far from here. There are also advice agencies to help communities.

Not all of you are Scottish, not all of you might be planning a buyout, but I hope this has given you a little something to think about.

Back to the rest of the evening. Thanks for giving me the chance to say a few words.

Posted in Land Reform | Tagged , , , | 1 Comment

Brexit and #indyref2: what now?

In the aftermath of the Scottish #indyref, I announced a hiatus from any overtly political blogging.

In the aftermath of the UK vote to leave the European Union, I suspended that hiatus when I posted some reflections on that referendum. That became my third most popular blog post of 2016.

The circumstances that moved me to somewhat political blogging in the first place were the #indyref and the aftermath of the #EURef. A few conversations – and I suppose that more recent post’s popularity – have made me think for a while that I might want to expand some thoughts into another blog post. Two particular events, namely Prime Minister Theresa May’s Brexit speech and the more recent UK Supreme Court judgment, have now jolted me back to blogging.

To massively oversimplify those two events: the former directs the UK towards a clean Brexit; the latter says Parliament must be involved in the Article 50 notification process, whilst noting that the devolved administrations need not play any legal part in that process.

Here are some eclectic thoughts on Brexit, which begin as a comment on the UK as a whole then veer into some observations about Scotland and #indyref2. On the second topic, I can see why people are discussing Scottish independence again, but this post strikes a hesitant tone. In my humble opinion it is not (yet) time for another Scottish independence referendum.

My perspective on the UK and the EU

I have articulated some of my views on the UK and the EU before, either on this blog or on social media.

I am lucky to work in an environment where I regularly get to share ideas with people from Scotland, the rest of the UK, the rest of the EU, and beyond. Since the vote to leave the EU, that environment at the University of Aberdeen has benefited from visits from the likes of Professor Sir David Edward and Dr Holger Hestermeyer to offer their thoughts on Brexit. Both gave informative lectures (with tweet chains here and here). Based on Dr Hestermeyer’s talk in particular, I offer two thoughts.


The first is that the UK and the EU have similar but different negotiation goals. To simplify, but also to go back to the basics of negotiation, the UK is after:

  1. the best post-Brexit deal the UK can make with the EU; and
  2. er, that’s it.

Whereas the EU desires:

  1. the best post-Brexit deal the 27 remaining Member States of the EU can make with the UK; and
  2. the unity of the remaining EU27.

The UK needs to be prepared to deal with a negotiation along those lines. Even if it is properly prepared, the deal the UK wants and what might seem ostensibly in the EU27’s commercial interests could easily rub against the EU27’s unity.

(Of course, the EU might separately disintegrate anyway and won’t this blog post look silly then, but I am working on the assumption it won’t.)

Then there is the fact that, as I understand it, the UK needs to think pretty carefully about securing a deal that includes free trade with the EU. Why? Because World Trade Organization rules operate in a way that dictate any deal short of free trade would then need to be offered on similar terms to all trading partners without a free trade deal. This is something the EU is unlikely to want. “Unlikely” is putting it mildly. This will have huge implications for any negotiation.

Despite what I have just said in the previous paragraph, probably the one thing that I agree with Prime Minister May on is that she needs to somehow position a clean Brexit as something the UK could live with: again, back to the basics of negotiation, think of your best and worst alternatives to a negotiated agreement (per my earlier tweet on the point).

The thing is, I am not entirely sure that this is a good or even an okay option.

What sort of deal can be negotiated?

Brexit is going to be darned complicated. I recently participated in a panel discussion looking at the two biggest issues facing the Scottish agricultural sector, namely land reform and Brexit. Numerous interesting points were made (by others, and I hope by me). Whilst I left the event enlightened, I also left the event with even more questions of my own about how imports and exports will work, not to mention the issues of future support payments for agriculture and access to migrant labour (which is at least transitionally important, given the current reliance of the soft fruit industry on migrant work). People with insights into the financial or fishing industries, to name but two, will no doubt have individual concerns for their sectors.

This is not remoaning. This is trying to make Brexit work and pointing out real obstacles that exist along the way to any Brexit utopia. And I am far from convinced the path taken will be the best for the UK (including Scotland).

My perspective on Scotland

Ah, Scotland. What should Scotland do? Is this the famous “material change” that might allow for another independence referendum? As already noted, I am not quite sure we are there.


Some might argue the UK Supreme Court decision exposes just how weak the devolution settlement and the recent Scotland Act 2016 are. Maybe I have low expectations, but I was not actually surprised by that revelation.

What strikes me as more important are the actual mechanics and implications of Brexit. I still think it is beholden on all of us to try to make this work at a UK level, but I also think the direction of UK Government travel could soon be enough to make the independence option an option again. Some thoughts on Scotland now follow.

Scots and unions

My first thought here is one I owe to several conversations with University of Aberdeen colleagues and others. It is a generalisation, so open to critique, and as such this is perhaps why I have not seen it articulated too much in print. The generalisation is that the Scots, in the main, have a history of “getting” union. (For example, after Darien and all that, it was clear(ish) that union provided a way for wee Scotland to take part in the adventure of Empire.) Perhaps this mindset has contributed to both recent referendums producing Scottish votes in favour of union.

(Before anyone comments, I know there is a danger of pretending Scotland is homogenous block of Remainers: I mentioned that in my previous Brexit blog post.)

Add to that that both referendums were largely accidental. And yes, they really were accidents, even if the hardcore campaigners for either cause might claim otherwise: for the indyref, that “wholly accidental” referendum was caused by the SNP somehow winning an absolute majority in the 2011 Holyrood elections; for the EURef it was because the Tories won an absolute majority in the 2015 General Election and David Cameron’s short termist bid to placate wings of his own party led to a referendum on the UK’s membership of the EU.

Scottish independence: “Why?” or “Why not?”

Time for another generalisation. Harking back to 2014, in my limited experience of arguing for Scottish independence I found people could be crudely organised into two mindsets: those who thought “Why?” and those who thought “Why not?

Those in the “Why not?” camp were more likely to take a punt. I was one of those, although (as noted in my pro-Yes blog post) I was open to being convinced of reasons to the contrary.

(One reason to the contrary that was bandied about regarded Scotland’s place in the EU. Dame Anne Begg (then the MP for Aberdeen South) ran that argument at an event I attended in Aberdeen. I responded with the counter-position from the audience. Things look a bit different now… But that is a cheap shot by me. I will return to that below.)

Those in the “Why” camp took much more convincing: “this referendum has been sprung on me, convince me.” That is exactly how I felt about the EURef and it was an experience I had no option but to learn from.

Thinking a bit more about the “Why?”, those less inclined for independence might be subdivided into “Why in general?” and “Why now?”

Brexit may or may not have moved some “Why in general?” folk, but it is the latter camp that Brexit suddenly presents an answer to (and I suspect it is this camp that will be considered carefully when thinking of the timing of any indyref2).

The referendum results demonstrated that the Scots electorate wanted both unions. It now seems increasingly clear that Scots literally cannot have both unions.

Not only that, the recent UK Supreme Court judgment indicates that the Scots’ opportunity to shape Brexit is limited to 59 MPs in the House of Commons, Scottish peers in the House of Lords, and a Legislative Consent Motion (which the UK Government can consider then reject without being in breach of the UK Constitution or the Scotland Act 2016 specifically).

If you are not bothered by that situation, you are in the “Why in general?” camp and have not been swayed. Fair play.

If you are bothered by that situation, like this former representative of Lawyers Together, you have your answer to “Why now?”

But haud on…

Right, so we are clattering to independence then, aye?

As Alistair Darling might say, haud on.

Bad things were predicted in the event of a Scottish Yes vote in 2014.

Bad things were predicted in the event of an EU Leave vote in 2016.

Because independence was not voted for in 2014, you can’t simply assert those predicted bad things would not have happened. And that would have included iScotland having at least a re-shaped relationship with the EU (which, at that stage, would have included the rest of the UK without a mandate to Leave).

Then there is the separate point that any aftermath to the Brexit vote or indeed Brexit itself will not insulate iScotland from challenges a new state would face, whether in Scotland’s particular situation or a new state in general.

For argumentation purposes, let me take it as a given that bad things have indeed happened since the EU Leave vote. (People can and will dispute this, that’s fine. I am not arguing either way, I am just using it as a rhetorical device.) To what extent can the Scottish electorate be convinced that more bad things won’t happen with Scotland hiving off? If it is a struggle to answer that, any campaign will also be a struggle.

Then there is the politics of it. Andrew Tickell’s blogged anecdote of a Yes voter who actually voted Yes to leave the EU is one I have shared before. The impermeability of the 45% who voted Yes to Scottish independence in September 2014 cannot be assumed.

There are also those who may have voted Yes for non-EU related reasons in 2014 but, now that they think about it, feel it is far more likely that they would take up a job offer in Newcastle than Nijmegen and as such the Anglo-Scottish (and Welsh and NI) Union is to be preferred. This is another possible seepage from the 45.

Finally, those who voted Remain for the UK in the EURef might not have expected that vote to instantly transmogrify into a Remain for iScotland. To assume the 45 can be swelled with those Remainers is a big leap.

Sure, maybe there has been an element of swelling, and I have seen some tweets to that effect in the social media echo chamber. But maybe Twitter is not the best gauge of all of this. In fact, this blog post is all rather downbeat, compared to the likes of Derek Bateman’s rallying cry penned in the aftermath of the UK Supreme Court decision.

Also, see all that stuff about Brexit being complicated? Yeah, independence might be pretty complicated too.

What now?

Um, “so why are you blogging about this?”, I hear you cry? Because it might be useful for supporters of Scottish independence to hear a “haud on” from someone who is not Alistair Darling. If this #StillYes-supporting blogger is saying haud on, that means there is still plenty to think about.

All that said, and with apologies to Tracy Chapman, there will be a moment where the question “If not now, then when?” will resonate. Whilst the last referendum was “wholly accidental”, the level of upheaval caused by some forms of Brexit would be such that another referendum would be entirely justified to this blogger: as the historian Jim Hunter tweeted, it is “Ironic that Scotland, which joined UK in 1707 to boost its trading prospects, is now stuck with a UK bent on shrinking these same prospects”.

And to return to the fact that Brexit and iScotland will be complicated, to avoid ever doing something because it is complicated is the kind of thinking that leads one to never move house. Brexit is coming because voters in the UK so wanted to Leave that the associated paperwork did not concern them. For those in Scotland who were worried about the paperwork of Scottish independence, plenty of paperwork is coming your way anyway. At some point, that could be part of the answer to “Why now?”

And if you still do not want that “now”, the chances are your answer to Chapman’s “when?” is “Not ever.” As noted above, fair play: and if you are in that camp I am pleasantly surprised you have read all the way through this blog post.

For those readers who want Scottish independence, I hope this blog post might just be useful in setting out how a campaign might shake out when we reach the “now”.

Yes, this is all very hypothetical.

And yes, political blogging and nation building are both hard: the latter I have no experience of, but I gather it is harder than blogging.

I suspect I will self-impose another hiatus until we see what sort of soundbite-free Brexit we are getting and/or whether indyref2 is actually happening. Do feel free to comment below though and I will keep the conversation going.

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