The latest contribution from regular columnist Mia.
`I am in agreement with Marion. It is not a matter of us having to prove anything to Westminster. At the end of the day if we are trying to assert popular sovereignty and we are demanding to move away from the artificial and English only convention of parliamentary sovereignty, we cannot then step back and twist ourselves in knots trying to find a way to “satisfy” a colonial power. In doing so we would be giving them the power to take the ultimate decision, which is how Sturgeon has been wasting our time for the last 8 years. Reality is they will find another obstacle somewhere, if not they will fabricate a bespoke one to measure, to stop the cash cow leaving. I think we need to lock that door once and for all and direct our focus to those who have been abusing our trust and patience: Scotland’s MPs, MSps and government.
What I think we need to do is to convince those who claim to be our representatives in Westminster, HOlyrood and Bute House that we are demanding independence and unless they are delivering it and soon, they will be removed from the seats and worse, their actions and words will be scrutinised to the last millimetre every day and exposed for every and each time they failed/fail to uphold the Claim of Right, the fundamental conditions of the treaty of union and the constitutional tradition of Scotland and they legitimise with their presence in Westminster the abuse by England MPs.
The key is not in convincing England MPs. The key is to influence their enablers. And their enablers are our MPs, MSPs and Sgov. The key is therefore to get the message to Scotland’s MPs that it is time for them to get lift their backsides from the green seats, and effect independence, which is something they should have done already in 2015, or move aside and stop interfering with Scotland’s right to self determination. We elect both set of MPs, those who sit in Westminster and those who sit in Holyrood. This means that the actions of Scotland’s MPs cannot be conditioned by the actions of those sitting in Holyrood or those sitting in Scotland’s executive.
England MPs cannot impose their ruling on Scotland if the Scottish MPs do not let them to. These are the words of Margaret Thatcher:
‘As a nation, [the Scots] have an undoubted right to national self-determination; thus far they have exercised that right by joining and remaining in the Union. Should they determine on independence, no English party or politician would stand in their way, however much we might regret their departure.’
Well then. Scotland sent 56 anti-union MPs to Westminster in 2015, 35 in 2017 and 47 in 2019. We did not send them to legitimise every abuse England MPs have imposed on Scotland ever since. We sent them to stop that abuse and to end the union. If Scotland is still being abused by toxic policies passed by England MPs is because our Scotland MPs are not doing their job.
So far, what we have representing us is new labourites operating under an SNP flag and with more aversion to Scottish independence than the tories. For 7 years they have been doing the bidding for the British state instead of representing Scotland and upholding Scotland’s rights and constitution. This is completely unacceptable and must stop.
Sturgeon’s move to take that draft to the England as the UK Supreme Court was in my view stupid and deliberately counter-producing. Another of her signature moves designed to send us into a cul de sack and leave us on a constitutional limbo for a bit longer while wasting even more of our time and undermining our constitution and sovereignty a little more.
If that draft should go anywhere is to a Scottish court, not to an English one that is subordinate to the UK parliament and will never rule beyond English parliamentary sovereignty. If what we are trying to assert is our own sovereignty and constitutional rights, it should never be an English judge operating under English law convention who tells us about it. It should be a Scottish judge expert in Scotland’s constitutional law tradition and applying Scots law for the benefit of Scotland, not the union.
This advisory referendum this hopeless FM is angling towards is, in my view, just another of her stitch ups to add to the miles long list. Another excuse to force us through the devolution route to keep us under Westminster’s shoe, Another excuse to use the flawed franchise again, another excuse to leave the postal vote open to manipulation, another excuse to denying us real self determination, possibly with the sight of foisting on us her “full fiscal responsibility” or some other Devo-max like crap.
I think at this point we should put our foot down and demand a plebiscite election at the next GE and thereafter where Scotland’s MPs will get a clear and unequivocal mandate to not taking their seats, not swear allegiance and to immediately communicate the end of the treaty of union. That the new-labourites under Sturgeon refuse to cooperate? Then deny them the vote.
Like Breeks says independence day could be postponed to after a transition period, but I think the communication of the intention to terminate the treaty on a defined date must be immediate to avoid a circumstance like in 2017 where England MPs called an early election to thin down the number of anti-union seats we have and destroy our mandate.
We should reject point blank any more nonsensical attempts by Sturgeon to force us against the current through her silly devolution route in order to remove all power from us and hand it over to Westminster and n10, as she has been doing since 14 November 2014
MY COMMENTS
Mia highlights the need to change tactics. We have wasted years going round in circles where that time has been used to build further obstacles to Independence, funds have disappeared, divisive policies have been promoted that have divided the Yes Movement and SNP members and branches have been ruthlessly removed from any say on the future path of their Party. Changing this will require confrontation. We should not shirk from that because in reality until we do so the Independence cause is going nowhere.
I am, as always
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This really is a load of nonsense, not helped by disrespect for the FM.
The Supreme Court is not English and follows on from the Judicial Committee of the House of Lords.
The FM is well aware of the Scottish Constitutional tradition and it will be employed.
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Regarding employing the constitution, extraordinary claims required extraordinary evidence otherwise this is just another manifestation of a secret plan from First Minister, which so far, have been so secret only she knows the details.
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Respect needs to be earned Graeme. She has completely lost mine.
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Yes. She’s an absolute block to Scottish Independence and must go.
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I think the First Minister is as likely to get as much respect as Sir Jimmy Saville OBE gets.
No one is now fooled by the type of person that Nicola Sturgeon is and her time is passing. Her footnote in history will not be kind to her.
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You have to earn respect. It is not granted with titles.
Would you have us “respect” a Crown travelling in a car as a symbol of our lowly status. Get off your knees man.
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Lol , aye , that was pretty surreal . Madge was * otherwise engaged * so just sent a hologram in her stead . The difference was negligible . Well , maybe the hologram was a bit more substance . Maybe WM will employ similar CGI Tech to replace the cardboard cut-outs to save all that bother for the * servants of Democracy * ( HA ! ) of turning up in person . Again , would anyone notice the difference ? 🙂
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” HAD a bit more substance “
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She could very well be aware of ‘the Scottish Constitutional tradition’. Once she retrieves it from behind the metaphorical filing cabinet.
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No Graeme McCormick, it’s what you are saying that is a load of nonsense, and as regards the “FM” she has lost ANY respect that I ever had for her !!
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“not helped by disrespect for the FM”
With all due respect to you, Graeme. My comment above does not contain “disrespect” for the FM. It contains very strong criticism as I believe it is deserved after almost 8 years of delivering nothing and, when you look retrospectively, every single action taken by this FM, and this submission of a draft to an English court is no different, has been in the direction of stopping independence rather than facilitating it.
As many contributors here have stated, respect is not given, it is earned and because of that it cannot be taken for granted.
Taking the wheels of the independence party to stop it being a vehicle of independence when you knew before hand there would be a landslide win in the next GE does not earn you respect, it loses it.
Handing over Scotland’s assets to England MPs when you have an absolute majority of Scotland’s seats and you can stop it by declaring independence, does not earn you respect, it loses it.
Keeping quiet while England MPs unilaterally butcher the Scotland Act to take control of our main assets, despite the SNP holding a majority of the seats in Westminster, does not earn you respect. It loses it.
Delivering a capitulation speech, acquiescing to England MPs and England’s government rule removing any choice from the hands of the people of Scotland when the people of Scotland sent a majority of SNP MPs to Westminster on a mandate to stop brexit and to exercise a choice , and when you have held a mandate to call a referendum since 2016, does not earn you respect, it loses it.
Giving precedence to England’s expressed democratic will when you were elected to enact Scotland’s expressed democratic will and for which you were handed a majority of the seats in Westminster, does not earn you respect. it loses it.
Dangling carrots for 7 years and hiding behind the excuse that an England government does not give “consent” for a referendum despite your controlling the majority of Scotland’s seats in Westminster and your controlling the Scottish executive and parliament, does not earn you respect, it loses it.
Looking the other way and letting the Withdrawal bill pass, when it is a direct assault on Scotland’s constitutional tradition of popular sovereignty and when you control the absolute majority of Scotland’s seats in Westminster and therefore you could have stopped it, and when even Carwyn Jones noted it in the parliament of Wales, does not earn you respect. It loses it.
Allowing the vote for triggering A50 to even take place in Westminster after Scotland refused consent for brexit and after the people of Scotland gave you control of a majority of Scotland’s seats in Westminster to stop it, does not earn you respect. It loses it.
Siding with unionist parties to stop a supermajority in the Holyrood election 2021 and stopping a plebiscite for the sake of either frustrating independence or stalling it, does not earn you respect. It loses it.
To abuse your position of power to discredit the decision of a jury does not earn you respect. it loses it.
Siding with a deeply corrupt UK civil service to create an unlawful complaints procedure and remove an opponent from active politics, costing millions to the taxpayer does not earn you respect. It loses it.
Presiding over a government that hides behind a court case to actively suppress information of public interest, does not earn you respect. It loses it.
Sending this draft bill to an English court when you have a perfectly functional and competent Supreme Court in Scotland which has recently dealt with the Keatings case, very similar in nature, and dealt with the more complex Cherry cases about prorogation and revoking A50 triggering, and when the matter of Scotland’s independence and Scotland’s parliament is above all, a matter for Scotland and Scotland only, does not earn you respect. It loses it.
“The Supreme Court is not English and follows on from the Judicial Committee of the House of Lords”
If English convention prevails over Scotland’s constitutional tradition, and English law prevails over Scots law, then it is not a “UK” court. It is an English court. Parliamentary sovereignty is usually the damage limitation tool of last resource used by this court. Parliamentary sovereignty is English convention, nothing to do with Scotland.
Regarding the House of lords, do you remember any recent case in the Judicial Committee of the House of lords where only Scottish Peers were present when debating a matter pertinent to Scotland? I don’t. There are always English peers/UK peers there. Only the Scottish Peers sat in the Old Scottish Parliament so they are the only ones that represent Scotland. UK peers are elected by a government, so they do not represent Scotland. They represent the government that elected them. Let me give you an example, the debate in 1999 regarding reducing the number of Scottish peers sitting in the HoL and therefore reducing Scotland’s representation in the UK parliament. This was considered by some of them a breach of the treaty of union and a breach of their constitutional rights. Lord Gray put a motion. Of those debating and deciding the outcome of the motion, which you can guess it was against the Scottish peers, there was only one Scottish peer. All the rest were either English peers or UK peers. What they were doing discussing the constitutional rights of the Scottish peers under Scots law, Scotland’s constitutional and parliamentary tradition, escapes me. But guess what? the intervention of English and Uk peers determined that the ultimate reason why Lord Gray’s motion was rejected was “Parliamentary sovereignty”. But England MPs and England’s lords do not have parliamentary sovereignty over Scotland’s MPs or Scotland’s lords and even less Scotland itself , Scotland’s law or Scotland’s old parliament. So how do you reconcile the supposed “parliamentary sovereignty” of England MPs with an article of the treaty of union that was ratified by the old parliament of Scotland to which the concept of parliamentary sovereignty did not apply?
From where I am standing it looks like a complete farce of cosmic proportions and just an excuse to silence Scotland at every turn, being that its MSPs, its MPs or its Peers, with the English principle of Parliamentary Sovereignty which, at some point or another in the last 300 years, England MPs and England’s peers/UK peers have unilaterally transferred to the whole UK parliament even when Scotland’s MPs and peers could not have done so because it did not apply to the old Scottish parliament.
“The FM is well aware of the Scottish Constitutional tradition”
Being aware of the Scottish Constitutional tradition when you are the FM of Scotland and the leader of a pro-independence party is nothing to be praised for, it is expected. Being aware does not earn you respect. Acting upon it so Scotland is not prejudiced and Scotland’s constitutional tradition is preserved and not undermined, is what does.
Letting for 7 years opportunity after opportunity to flex the muscles of that constitutional tradition to stop the abuse of Scotland at the hands of England/UK MPs and peers, to escape you does not earn you any respect. It loses it.
“it will be employed”
You might be believed when you say “it will be employed” after you have been for one month in the leadership position. After a year of lost opportunities, the majority may still give you the benefit of the doubt. But when you have been for almost eight years in the driving seat and for over 7 of those 8 years you have had control of the majority of Scotland’s seats in Westminster so you could have terminated the union, and yet you have let every single opportunity to employ that tradition escape you, then I am sorry to say but the only thing that such expression induces is laughter.
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Well said, Mia, and thanks for your contributions and not letting the doubters and naesayers off with their negativity and ill informed opinions.
Our cause has so many strong, enthusiastic, knowledgeable, encouraging citizens. We will do this!
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I’m so glad I found this blog, Ian. It is always informative and interesting and so are the comments (on the whole!)
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Meanwhile, Craig Murray remains consistent to his stance that domestic law matters not a jot.
Our route to freedom must and can only, ultimately be through international law.
https://www.craigmurray.org.uk/archives/2022/07/independence-justice-and-the-unionist-lord-advocate/
Our problem lies in creating a body that will :
* Convince other sovereign states that it acts with democratic authority for the Scots folk.
* Has the baws tae fight the British state.
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I tend to agree with Craig Murray here. We were not conquered; our representatives in the Scottish Parliament agreed to the Union and the Treaty, set up by the Scottish and English Commissioners on behalf of Queen Anne. There is simply no way round that. We need to bring a case in the international arena, based on the findings of SALVO, SSRG and the other constitutional fora, whilst declaring in our own parliament that we want the Union is end. A ratifying referendum and not, emphatically not, a pre independence referendum, will seal the legitimacy of our declaration and case to back it it in international law, the law which underpins the Treaty. Domestic law is a waste of time here, and always was. Political will and a case in international law is the only route out. That will entail a direct confrontation with Westminster and the British State. Again, there is no other route. The SNP are playing games with our future – at least, the future of our children and grandchildren.
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“This really is a load of nonsense, not helped by disrespect for the FM.” Bereft of anything resembling argumentation as to why you hold this view, what your comment amounts to is merely a personal opinion, Graeme, a throw-away line. What Mia, on the other hand, is engaging in and is attempting to broaden and encourage is serious debate vis-a-vis Scotland’s independence. Also, you can hardly use language like “load of nonsense” regarding her work and in the same sentence accuse her of “disrespect for the FM”.
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Couldn’t agree with you more Mia. The sentence that stands out for me is ‘ the key is to influence their enablers who are our MPs, MSPs, and Scot Gov.’
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Indeed, you could no place a cigarette paper between the Tories, Labour, Lib Dems and the SNP/Greens now. All of them have neoliberal/neocon policies and Thatcherite ideology at the heart.
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Good piece here from Craig Murray of the folly of the arguments presented by LA Bain to SC and how the open goal of international law has been “missed!”.
https://www.craigmurray.org.uk/archives/2022/07/independence-justice-and-the-unionist-lord-advocate/
We have the keys to get out/dissolve this union but too many of the Scottish Establishment/Colonial Elite are determined to keep them hanging on the shelve!
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Excellent work/thinking as per Mia . Buds are starting to appear on what appeared to be the petrified tree of our aspiration . Fruits to follow .
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Apologies for going off the subject here.
I received an email from Duncan Spence’s cracking ‘It’s Shite Being Scottish’ blog. This is the link for passing on condolences.
https://duncanspence.blog/2022/01/12/finding-stillness/?replytocom=3043#respond
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Same old same old from Mia.
One paragraph particularly took my attention, and I quote it below:
“If that draft [law providing for the Oct 2023 referendum] should go anywhere is to a Scottish court, not to an English one that is subordinate to the UK parliament and will never rule beyond English parliamentary sovereignty. If what we are trying to assert is our own sovereignty and constitutional rights, it should never be an English judge operating under English law convention who tells us about it. It should be a Scottish judge expert in Scotland’s constitutional law tradition and applying Scots law for the benefit of Scotland, not the union.”
Mia seems to have failed to have understood that the Scottish court system is part of a wider UK court system and that all Court of Session decisions (High Court of Justiciary decisions on criminal law are distinct) go for ultimate appeal to the UK Supreme Court. The scope and meaning of the Scotland Act will be judged on UK legal principles including the supremacy of the Queen in Parliament. This is a woeful lack of understanding.
William
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William, that ‘s your interpretation. Quite a telling one.
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“the Scottish court system is part of a wider UK court system”
Would any England PM have ever contemplated to take a draft of the bill to legislate for the EU referendum to the European Court of Justice to double check if it was okay for the UK parliament to pass it? Absolutely not. And yet, at the time the UK was part of a wider EU court system
Would the people of England and their political representatives have ever even entertained the insolence, arrogance (and incompetence) of their highest lawyer in the land sending a draft bill to the European Court of justice because that lawyer, claimed that, despite being their actual job to know, they did not know if that bill was within the competence of the UK parliament?
No. They would send that self-entitled and incompetent lawyer packing and quite rightly so. So why are we here in Scotland expected to put up with this time-wasting nonsense?
Remember the case of the unlawful prorogation of the UK parliament by Johnson and the monarch? Which court did Ms Cherry took the case to first? Wasn’t it the court of session? I don’t recall the court saying it was beyond their competence. Do you? Actually the Scottish court ruled the prorogation unlawful.
Well then, if it falls within the competence of a Scottish court to decide if it is unlawful or not for the England as the UK PM and monarch to suspend the UK parliament, surely it falls within the competence of the Scottish court to decide if it falls within the competence of Scotland’s democratically elected parliament to legislate for a referendum or not. Maybe the problem we have here is that the lord Advocate has been promoted beyond her ability and she does not know her brief. If that is the case, then she should be sacked. I don’t see why the people of Scotland has to put up with this level of incompetence and this disgraceful disrespect of the Scottish courts and the Scottish legal system.
Remember the other case taken on by Ms Cherry, Mr Wightman, Mr Greer, Mr Smith etc to determine whether the UK could unilaterally revoke its Article 50 notification before the expiry of the two-year negotiation period? Again, this was about a power of the UK parliament and in relation to exiting the European Union, well beyond the scope of Scotland itself. Where did Ms Cherry bring the case first?
The court of session.
From there, and after successfully appealed, it went directly to the Court of Justice of the European Union. As far as I remember, this case never went anywhere near the England as the UK Supreme Court. It totally bypassed it.
Well then, if the court of session could deal with a matter related to the relation between the UK parliament and the EU, well beyond the scope of Scotland itself and the boundaries of Scotland, then it stands to the obvious that it can deal well within its capability with a case related to the parliament of Scotland and related just to Scotland.
Remember Mr Keating’s case? It was about the exact same thing this hopeless FM is now claiming she is trying to do. But Mr Keatings did the right thing. Scotland’s independence and Scotland’s legislation to unilaterally terminate the union is a matter for Scotland and therefore for the Scottish constitutional court, not for an English court. Do you remember at any point the lord Advocate of the day, the Advocate General for Scotland or the court itself saying that the case was not within the competence of the Scottish courts?
No. Me neither. They issued a ruling on it because it fell within their competence.
So there are only two possible explanations I can think of for the hopeless FM, now teaming up with a seemingly equally hopeless Lord Advocate, sending a draft bill, nothing less, to an English court instead of a Scottish one. The first is that they are both incompetent and they do not know their brief. I guess you have to give them the benefit of the doubt.
But the second, and far more plausible, is that they feared the Scottish court was going to say that calling the referendum is within the competence of Scotland’s parliament, so they sent it to the English court with the hope that English judges could crush the petition applying their usual and only nuclear damage limitation tool that is the UK’s pretend “parliamentary sovereignty” and some other English convention nonsense.
I invite you to take a look at Article XIX of the treaty of union:
“That the Court of Session, or College of Justice, do, after the Union, and
notwithstanding thereof, remain, in all time coming, within Scotland, as it is now constituted
by the Laws of that Kingdom, and with the same Authority and Privileges, as before the
Union”
Well then, this means the court of session must have retained all its authority in constitutional law intact, as it was proved in Ms Cherry cases of the unlawful prorogation of the UK parliament and the revoking of the triggering of A50.
Now take a look at this interesting bit within the same article:
“and that no Causes in Scotland be cognizable by the Courts of Chancery, Queen’sBench, Common-Pleas, or any other Court in Westminster-Hall; and that the said Courts,
or any other of the like Nature, after the Union, shall have no Power to cognize, review, or
alter the Acts or Sentences of the Judicatures within Scotland, to stop the Execution of the
same”
The England as the UK Supreme court is a product of Westminster, courtesy of Blair. I think it would fit very well the description of a “Westminter hall court”, don’t you think? So in line with that article of the Treaty of Union, the matter of Scotland’s independence and the matter for Scotland to legislate for its own effing independence referendum is a “Cause in Scotland” that, in line with that article, should not be cognizable by an English court. In my personal opinion, the only legitimate response the Supreme Court should issue here, and the only acceptable one, abiding by that article of the treaty of union, is that it is not within their competence to issue a ruling without a Scottish court issuing the ruling on the matter first.
But it is the next part of the article XiX what is most fascinating:
“that the said Courts,or any other of the like Nature, after the Union, shall have no Power to cognize, review, or
alter the Acts or Sentences of the Judicatures within Scotland, to stop the Execution of the same”
In other words, in line with that article, that England as the UK Supreme court should have no authority nor legitimacy “cognizing, reviewing, or altering the ruling of the supreme courts of Scotland” Why is this interesting?
Because after seeing how Mr Keating’s case was heard in a Scottish court and this considering it within its constitutional competence, after remembering the ruling of that case (hypothetical because the bill had not been passed by parliament), suddenly, on reading that article XIX I cannot help but wondering if the main reason why the hopeless duo FM – Lord Advocate may have sent the draft to the English court could be because they fear the Scottish court may actually rule in favour.
In line with that article of the treaty of union, if the Scottish supreme court rules in favour, then the English court cannot rule against without breaching the treaty of union, and therefore that would be Sturgeon reaching the end of the road of excuses and running out of places to hide behind to avoid delivering the referendum. However, if she sends the bill to the England as the Uk supreme court directly, bypassing the Scottish courts and before it has been passed in Holyrood, then the Supreme Court can help her delay the whole process just a bit longer, hopefully long enough for the successful tory candidate to call a snap GE close enough to relieve her of having to hold a plebiscite election.
“and that all Court of Session decisions (High Court of Justiciary decisions on criminal law are distinct) go for ultimate appeal to the UK Supreme Court”
Well, as I said above, it seems that in line with the Article XIX of the treaty of union, an English court cannot overturn the ruling of a Scottish supreme court without breaching one of the fundamental conditions of the treaty of union.
Also, it does not seem the case about the revoking of A50 went to the Supreme Court at all. It went to the European Court directly.
“The scope and meaning of the Scotland Act will be judged on UK legal principles including the supremacy of the Queen in Parliament”
What exactly are “UK” legal principles? Let me guess… “parliamentary sovereignty”. Well then. If Holyrood is nothing but a child of Westminster, why is it that it does not enjoy parliamentary sovereignty too?
It has never been challenged, but it is very unclear , at least to me, until what point, within the context of the treaty of union, asymmetrical devolution to Scotland but not to England was lawful. Also, considering the Claim of Right and that imposing absolute rule over Scotland is unlawful, how could England MPs ever legitimately self-declare themselves the owners of Scotland’s sovereignty? On the basis of what? On the basis of whose interpretation of the treaty of union? Because declaring themselves the owners of Scotland’s sovereignty is precisely what they did when they issued the Scotland Act 1998 stating that the people of Scotland have no right to dissolve the union. Who are England MPs to claim that when they hold the mandate of not a single vote from Scotland?
The only way you can interpret this to not be an usurpation by England MPs of the Scottish people’s sovereign rights over their own country is if the reserved powers related to Scotland’s right to terminate the treaty are held by and only by Scotland’s MPs. If this is he case, then the only thing Scotland’s MPs have to do is to stand up in the UK parliament and declare that, as custodians of the old parliament of Scotland and in exercise of the Claim of Right they consent for the referendum in Scotland to take place. They could symbolically even transfer the reserved power they hold on behalf of Scotland about the constitution to Holyrood.
That Scotland’s sovereignty, lies on England MPs or worse, on England’s peers or “UK” peers is simply not credible. It is outrageous. It has to be for the people of Scotland and for them only to decide the manner in which they terminate the union and when. England MPs may choose the way the people of England exercise that right for England itself, but not for Scotland. The direct interference of any England MP, English peers/English judges/ UK peers into Scotland’s legitimate right to terminate the union is an uninvited and unwanted encroachment of a foreign party into Scotland’s sovereignty and a violation of the Claim of Right and cannot be accepted.
“This is a woeful lack of understanding”
Is it? Because from where I am standing, it seems to be you who is displaying a misunderstanding about the scope of what is at stake here and a lack of vision of the artificial constrains imposed on Scotland to retain it, even against its will, in this union.
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“William, that ‘s your interpretation. Quite a telling one.”
You’re absolutely right ObairPheallaidh, William is everything that’s always been wrong with Scotland, a perfect example of a “House Jock” if ever there was one
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OP
It is not my interpretation but what I stated is a “telling fact”. Remember what happened when the Prorogation case was litigated in the Inner House. It was appealed to where EXACTLY?? There is a right to appeal civil cases from the Court of Session to the Supreme Court. What is your argument against that, m’lud?
Easy to hurl around tough words like “House Jocks”. But they do not worry me.
William
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@WRoss
“It was appealed to where EXACTLY??”
The England as the UK Supreme Court. Who appealed and why? And what was the ruling?
Did the England as the UK supreme court dare to change the ruling of the Scottish court and risking a direct breach of article XIX of the Treaty of Union which says “that the said Courts, or any other of the like Nature, after the Union, shall have no Power to cognize, review, or alter the Acts or Sentences of the Judicatures within Scotland, to stop the Execution of the same” ?
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My argument William is the court of session is the highest court in my country, that is Scotland, I don’t recognise the Supreme Court as you clearly do, as far as I’m concerned it is a foreign institution, I’m not doubting your “telling fact” you obviously know more about that stuff than me and Mia possibly I don’t know but I do know it’s the Mias of this world that effect change not the compliant obedient house jocks like you
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Why has the public mood changed so much here in Scotland?
Back in my youth most folk I knew lived in council houses with secure tenure, and plenty of jobs available. Assisted passage to Australia too if it took your fancy.The media told us via Pathe News and the wireless of Britain having to deal militarily with bad people in countries abroad.
And then, North sea oil! As a Chartered Engineer I was excited by the prospects. But then i found that the design work for the industry – and so the employment opportunities – was being done in London! I opted to remain in Scotland and found steady employment in the oil and gas industry, lucky me. I once accepted an assignment from my employer to a project in Aberdeen, and found the staff mostly came from South of our border.
And naturally I came to realise just how much Scotland has been abused in this union. In my early career I had cause to visit London, terraced brick houses, Z -cars on TV. Look at the transformation to London now – via North Sea oil.
Oil and gas resources. presently renewables power generation via essentially corrupt National Grid charges, next up will be taking control of Scotland’s water resources under the Better Together philosophy.
Anyway, reason to be optimistic – we have plenty of oil and gas resources, and huge renewable energy resources.What we lack is the authority – if you are inclined to believe it – to utilise these resource income streams for the benefit of the Scottish population.
Thankfully this blog, and others are sending out the message. And credit to Mia. Sara, Breeks, and several others for your contributions.
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Graeme
The highest civil court in the UK is the Supreme Court. I hope that you are not doubting that? It is the final authority on all Scottish civil appeals.
Your idea of the highest Scottish court might just about have been right in 1706 but things have moved on.
Come out of the 17th Century.
William
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you are correct. as long as we are in the union the british parliament and the supreme court are the highest authority whether someone believes it or not.
nothing is going to change as Sturgeon has the NEC under her control. SNP1 and 2 retains her power along with the promise of a referendum in never never land
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“The highest civil court in the UK is the Supreme Court”
For it to be a “UK” court it has to operate under both, Scots and English law. It doesn’t. It doesn’t even pretend to try.
It is another English court masquerading as “UK” where English law and the overused principle of “parliamentary sovereignty” is dished every single time something inconvenient has to be brushed under the carpet quickly but the English judges lack credible arguments for it. A wonderful example of this is how unconvincingly they dismissed the breach of article VI of the Act of Union with Ireland. Parliamentary sovereignty on steroids and its lesser substitue, the doctrine of implied repeal, all decorated with quotes from the theorist Dicey and some English lord or another and, there, job done. All under the carpet and out of sight.
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Willie Ross – the highest court in the land are the people. Wigs and gowns and obscure language in the final analysis do not hold sway.
Words are just words, easily voiced by the deceitful.
Laws are for the guidance of the wise, and the obedience of fools.
A person can wear a wig and a gown and still be a fool, or maybe worse, simply a deceitful stooge.
The Alex Salmond trial fiasco – i foolishly believed that perjury was a “Go to Jail” offence; the Lord Advocate Bain’s submission to the “Supreme Court” tells me that all is not well with our judicial system.And recognition of an England – based “Supreme Court”,with a few Scots lawyers – outnumbered naturally – adds to my concern.
“Come out of the 17th century” – oh Willie, get off your knees.
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It has struck me that the brilliant and still influential Hiberno-European philosopher Johannes Scottus Eriugena (c 800 – c 877) may have some advice for us regarding the arbitrary “authority” of the Anglo-British constitution as opposed to the “true reason” of the Scottish sovereignty case:
“For authority proceeds from true reason, but reason certainly does not proceed from authority. For every authority which is not upheld by true reason is seen to be weak, whereas true reason is kept firm and immutable by her own powers and does not require to be confirmed by the assent of any authority.” (Johannes Scottus Eriugena, Periphyseon, Bk. 1, ch. 69).
I warm to Eriugena’s words even more in light of the following comment by Mark Byron in his excellent book ‘Ezra Pound’s Eriugena’ (Historicising Modernism series, Bloomsbury, 2014):
“Eriugena’s texts were described by Hincmar of Reims as ‘pultes Scotorum’ (Irish porridge) at the Council of Valence in 855.”
And that latter 9th century example of cognitive incompatibility brings to mind a third citation. In his 2016 submission to the UK Supreme Court Article 50 ‘Brexit’ Appeal on behalf of the Independent Workers Union of Great Britain (IWGB) Aidan O’Neill QC quotes Conrad Russell (1937-2004) thus:
“That the Scots found a perfect union politically unacceptable, and the English an imperfect union intellectually incomprehensible, provides the basis for the odd mixture of the two which was set up in 1707. The English got the unitary sovereign power which they wanted, and got it in the form based upon the existing English Parliament, with an English majority in it. The Scots got their recognition as a separate sovereign state, both from the form of the Union of 1707 as an international treaty, and from the survival of Scots law and the Scottish church. It is that claim that Scotland is a sovereign nation state which is reasserted whenever the English forget that 1707 was not a ‘perfect union’ and has recently been repeated in the Claim of Right. Scotland in accepting the Union in 1707 remained a nation and as a result any sovereignty in the British parliament could not be national sovereignty. This has always been hard for the English to understand.”
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I always think of all those Nations over which the King was head, His Parliament passed Acts, His Courts made rulings on the Laws passed under those Acts, His Army and Navy executed his wishes…..then one day , one by one, these Countries said NAW!
If you accept their framework of rules you will never be free! Don’t listen to the House Jocks…dozens of Countries didn’t and their flags fly outside the UN.
They only have Authority if you give it to them!
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Above is a link to a video by Martin Lewis the well known consumer champion.
In his video he describes an absolutely apocalyptic future of economic and social chaos.
It’s well worth watching because it should galvanise every single one of us in Scotland to take our independence.
The UK is in economic collapse. Brought to its knees by a rotten and corrupt Tory party nothing is working. Not ports, not airports, shrinking economy, soaring hyper inflation, and soon an Energy Famine in a country like Scotland endowed with oil gas hydro wind and water.
But watch the video, reflect, and make your own mind of our being Better Together, or if like Norway, we should become a small energy and resources rich socially equitable northern European country.
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Some interesting exchanges last night. Let me focus on Mia’s contributions:
1. Mia asks whether the UK would ever had to have asked permission from the EU to hold a referendum on leaving the EU. The answer is “No” because Treaty of Lisbon Article 50 clearly leaves the legalities of deciding to leave in the hands of the member state considering leaving. There was no defined way of leaving the EU provided in the earlier EU Treaties and the EU included in Lisbon as a sop to the UK. Brilliant work lads!
2. Mia misunderstands the structure of court systems. One thing is whether a court has authority (jurisdiction in legalese) to judge on an issue. The Court of Session clearly has authority to render judgement on matters of the substance and interpretation of the British Constitution and British Laws. (Breeks seems to believe that British Law does not exist, only Scots or English Law. — I couldn’t quite believe this when I read it). Lets look at the Prorogation case. Scottish petitioners filed suit in the Outer House of the Court of Session and there their case was rejected by Lord Docherty who held that prorogation was non-justiciable. Petitioners appealed to the Inner House of the Court of Session, where Petitioners won. The Crown appealed to the Supreme Court. In England, Petitioners case was rejected 3-0 by the Court of Appeal. They then appealed to the Supreme Court. Consolidating both Scottish and English cases the Supreme Court reversed the Court of Appeal, upheld the Inner House and held against prorogation. They based their decision on English authorities which pre-dated the Bill of Rights of 1689. This was a UK constitutional decision. Had the Inner House affirmed Lord Docherty and held for prorogation, the Supreme Court would have overturned the Inner House in a heartbeat.
3. It is true that the Supreme Court in its present form was a vacuous creation of Blair, but its predecessor was the Judicial Committee of the House of Lords, and before that simply the House of Lords. The Supreme Court/House of Lords has overturned hundreds if not thousands of Inner House decisions since 1707. The Supreme Court is fully competent to decide matters of Scots Law even in matters of traditional “private right” such as contracts, delicts etc.
4. If Sturgeon had filed in the Court of Session then either she or [Truss?] would have appealed any decision to the Supreme Court. So filing in the Court of Session would simply have wasted time. When will the conspiracy theories end?
5. Mia does cite interesting and controversial language in TOU Article XIX, which is as follows:
“…and that no Causes in Scotland be cognizable by the Courts of Chancery, Queen’sBench, Common-Pleas, or any other Court in Westminster-Hall; and that the said Courts,
or any other of the like Nature, after the Union, shall have no Power to cognize, review, or
alter the Acts or Sentences of the Judicatures within Scotland, to stop the Execution of the
same;that the said Courts,or any other of the like Nature, after the Union, shall have no Power to cognize, review, or
alter the Acts or Sentences of the Judicatures within Scotland, to stop the Execution of the same”
The appellate function of the House of Lords was well known to the Scots because there were heated arguments before Union ratification about what role the HL might play. Was the HL understood to be “any other Court in Westminster Hall?”. A very interesting exposition of the intense and detailed debate is contained in J.D Fords article on “The Legal Provisions in the Acts of Union” 2207 Cambridge Law Journal, pages 106 -141. (https://www.jstor.org/stable/4500875) Forde’s opinion stated at Page 140 is that” The Articles of Union they drafted and approved for submission to the English parliament were sufficiently ambiguous to allow for appeals on questions of substance to a court staffed predominately with English lawyers and to enable these lawyers to effectively accomodate the private law of Scotland within the common law of England”. In other words he thinks appeals were envisaged but the issue is not clear.
6. Let us be generous to Mia and agree that Article XIX prohibited appeals from the Court of Session to the HL. First of all, Article XIX, unlike Article XXV, is not styled as being “fundamental” in character. Admittedly, no-one really knows what “fundamental” was meant to mean in connection with TOU Article XXV. Appeals to the HL/Supreme Court have now happened for hundreds of years. And as a practical matter it is quite impossible for there to be two possibly conflicting Supreme Courts in the one Union State, Let us look at the prorogation issue. Just assume that the Inner house had affirmed Lord Docherty that prorogation was legal and the Supreme Court had struck it down in England. Prorogation could not be legal in Scotland and illegal in England. The issue of criminal matters is different because there the question is never more than the criminal liability of a discrete person in Scotland.
7. Lastly Mia expresses her doubts about asymmetrical devolution to Scotland but not to England via the Scotland Act of 1998. In that Act the sovereign UK Parliament decided to delegate certain legislative functions to a devolved legislature in Edinburgh. The terms of that grant of power were fully within the jurisdiction of the UK Parliament.
The Scottish members of the UK Parliament are not the “custodians” of the old Scottish Parliament which is no more.
However, it is UNION constitutional doctrine, expressed by Mrs Thatcher among others, that the Scots have a right to secede if a majority of their Westminster representatives are elected on that specific proposition. That however, has never happened, but did come close to happening in October 1974. I remember that election very vividly, and I guess so will Iain.
Regards
William
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Reblogged this on Ramblings of a now 60+ Female.
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