MIA RISES TO THE CHALLENGE

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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.

MY COMMENTS

The one thing you can be sure of on this site if you challenge anything Mia writes she will be happy to debate and fully engage in defending and explaining her case. Now contrast that with Unionists and indeed SNP apologists, both camps happy to give the “UK Supreme Court” a legitimacy in determining Scotland’s Constitutional Future. Needless to say not one of them have taken up my challenge to write-an article setting out their justification for this supplication to this foreign court. There is arrogance about this, they resent being challenged and see no need to explain or justify their views. No they will rely on ignorance and the compliance and support of the anti Scottish MSM to hide the facts from the Scottish public. Instead of complaining about this we should be looking at ways of eliminating any media in Scotland that is anti Scottish in its behaviour. This should if necessary involve boycott campaigns. The dead tree press is already in severe trouble in Scotland and is increasing bring replaced by the growth of social media news and political opinion sites. That is where opportunity lies for the YES Movement. In my lifetime I have witnessed the demise of the once mighty Daily Record who once sold more than 700,000 copies a day to only around 70,000 today. They brought this on themselves by totally being unionist in outlook. We owe them nothing, unless they can change their editorial policy to accommodate and play fair with the opinion of at least 50% of Scots then why should we sit by and do nothing about it? Is that the best we can do? These comments extend to all the ”Scottish Press”. I do not demand they support Independence but I do demand they report events in Scotland without bias. If they are incapable of that then I think we have reached the point when we must look for opportunities to hasten their demise.

I am, as always

YOURS FOR SCOTLAND.

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54 thoughts on “MIA RISES TO THE CHALLENGE

  1. Mia, your posts and articles are a joy to read and lighten my heart no end. Your understanding is impeccable and I look forward to many more of your posts (not withstanding it’s Iain’s blog) that sustains my hopes and dreams for a better future for my children and grandkids.

    Liked by 13 people

  2. For all the posturing here (speak about venting hot air indefinately), there is no reason why the Court of Session would come to a different verdict even if it had the authority to hear the case.

    The Court of Session is for civil cases, so Sturgeon can personally present a case on her own behalf, if she thought there was any point to it.

    Like

    1. “there is no reason why the Court of Session would come to a different verdict even if it had the authority to hear the case”

      Yes there is a fundamental reason why the Court of Session may come to a different verdict and that is that a Scottish court follows Scots law in its entirety and Scots constitutional tradition. The England as the UK supreme court follows English law and English convention. A Scottish court would not have English judges and English peers in it pontificating about Westminster’s parliamentary sovereignty and Dicey’s 19th century theories. The only reason why you could presume the same ruling would be issued in a Scottish court is if the court has been corrupted because the Crown, heavily involved in the forming of the treaty in the first place, and concerned that Scotland’s independence may lead to it becoming a republic, becomes an interested third party too. But that is precisely why appeals should be heard in an international court and not the English court, just like the case for the revoking of A50 was.

      Another reason is that the England as the UK court is a product of Westminster. Scotland’s terminating the treaty of union will cause the UK of Great Britain parliament and therefore the England as the UK of Great Britain supreme court to functionally disappear. It is not credible then that under any circumstance the England as the UK supreme court can possibly be seen as objective ruling on a case that could lead to its own demise. That court becomes automatically an interested third party, just like the England as the UK government and the Uk parliament. The situation is not the same with Scotland’s courts. Their position will not change no matter if Scotland becomes independent or not, therefore they are more objective. The main risk is the interference of the crown.

      So yes, there is a lot of reasons as to why the case should have been submitted to where it belongs, Scotland’s high court and appeals to an international court, not directly to an English court that uses the English convention of parliamentary sovereignty by stealth to brush under the carpet all inconveniences that anything related to Scotland’s independence will bring.

      If in line with article XIX of the treaty of union an English court cannot review/turn the ruling of a Scottish court, then there is another fundamental reason why this case should have never been sent directly to this court, and that is this England as the UK supreme court can only rule against the case if a Scottish court has not ruled in favour before. If you are a pro-independence leader as you claim to be, what could possibly be your justification to bypass a Scottish court giving away Scotland’s constitutional right in perpetuity under article XIX of the Treaty of Union? I can think in none.

      “If it had the authority”

      It HAS the authority. This was proven by Keatings’ case, by Ms Cherry and others’ case regarding the revoking of A50 and Ms Cherry’s case against the unlawful prorogation of the UK parliament by the England as the UK PM and the monarch.

      There are many questions, many, as to why this FM has bypassed the Scottish courts and taken her case to an English court, with English judges and whose favourite tool is English convention. But then again the exact same questions could have been asked when her presenting the case of the UK executive triggering A50 without the consent of Scotland. Predictably, that England as the UK Supreme court and the English judges in it used their weapon of last resource “Parliamentary sovereignty” to crush Scotland’s rightful veto as an equal signatory of the treaty of union and to undermine Scotland’s Claim of Right. The ruling then was undemocratic, against the Claim of Right and as unacceptable as I am sure its ruling in this case will be.

      “Sturgeon can personally present a case on her own behalf, if she thought there was any point to it”
      If she thought there was a point to it? I think what you mean is if it would favour her anti-independence agenda. It clearly doesn’t, hence sending it to an English court so once again Scots constitutional tradition can be silenced with imposed English convention and the political and legal inconvenience can be bushed under the carpet.

      Liked by 16 people

    2. I’m guessing there’s a good reason you’re a constitutional hobbiest (SIC) and not even a hobbyist. You have ZERO knowledge of something you already profess to know little about.

      Liked by 11 people

  3. Excellent analysis Mia. One does now have the feeling that Scotland’s ain Coort o Session itsel could bring this hale mankit violated treaty of union to an end, swift-lyke tae.

    Liked by 18 people

    1. It can’t, Alf, sorry, because it has neither the competence not jurisdiction. The Treaty may be resiled only in international law, and not even the Supreme Court has that competence.

      Like

  4. Bravo!

    And I note that Craig Murray views the Lord Advocate’s case to be as weak as it could possibly be made, and in line with my own stated view that if the UN Charter’s Article 1 on the Right of a people to self determination is not considered by the Supreme Court (it makes no appearance in our LA’s statement), then we can only conclude that our LA, and the Supreme Court are fundamentally corrupt, or fundamentally incompetent, the former being the most likely by far!

    If the Court finds against us, and neither the UN Charter nor Scotland’s sovereignty have even been considered, that will be grounds for an immediate declaration of Independence on the grounds of the clear and irredeemable corruption that Westminster governance has enabled and incurred, and that Scotland will play no further part in any polity that treats us in such disregard and disdain in spite of Treaty guarantees and international obligations. We obviously can’t trust that institution, and see no reason why we should ever do so in the future.

    We gave it 315 years, it deliberately beggared us, and we owe it nothing at all.

    Liked by 18 people

    1. The conclusion that the LA and Supreme Court are corrupt was made during the previous LA’s tenure.
      I’m weary of this traipsing over old ground.

      Liked by 1 person

  5. Another insightful piece by Mia.

    I am sure the Court of Session decidedit couldn’t rule on the Bill as none had been presented by the Scottish Government therfore it wasn’t able to rule on a hypothetical situation, I am happy to be corrected.

    If this is the case then surely the UK Supreme Court would be in a similar position and the Scottish Government will need to have produced, or be prepared to present in Court, the Bill for consideration of its competence to legislate.

    Laws, or procedures, need to be given life before a Court can determine their interpretation as to legitimacy or otherwise. I have no legal training but purely from a commonsense stance youd have to see or have seen the intended article to draw a conclusion.

    I would have thought the Advocate General would have a basic grasp of this before charging down to a Constitutionally unrecognised court for a decision. Also, that they wouldhave reviewed the outcome of the case brought on our behalf by Mr Keating and guided the FM/Scottish Government accordingly.

    It certainly raises serious questions as to veracity of the decision to route our Sovereignty via a Court the Claim of Right and Treaty of Union discredits.

    Liked by 8 people

  6. Wow! @73yrs of age now, after giving the SNP 53 of those years, I gave up on them & INDEPENDENCE in 2017, it should have been 2015, as I sensed then something was going on, that a FM of an Indy Party, who knew as we all did via the polls & media that she was about to sweep up the seats for WM, came out with her ridiculous statement of that election NOT being an election about INDEPENDENCE.. I always believed that the people of Scotland were answering that RIGGED referendum. And the broken VOW & other promises, SHE had to know that too, yet she worked against the people & that vote, & has continued to do so ever since..

    I do not expect to see INDY in my lifetime now, But I truly believe that with SALVO, SSRG, NOW SCOTLAND, YOURSELF MIA & yes ALEX if he ever gets the chance again, & the decent people in ALBA, Will set this country free.

    Because it will require other routes & sources as the SNP are todays Parcel of Rogues without a doubt.. And NO, I no longer believe there are any decent people left in that party, the decent ones, the one with TRUE conviction for INDEPENDENCE left that rotten shower.

    BUT with INFORMATION like YOUR Posts, Sara Salyers posts, Alf Bairds Posts & ALBA touring the country I do believe that one day, this country will regain her INDEPENDENCE, in SPITE of the so called INDEPENDENCE Party known now as Sturgeons Nasty Party..

    Keep informing, & we shall keep using social media to try getting the TRUTH of Scotlands Claim of Right out far & wide..

    Liked by 13 people

    1. Strugeon the Unions Trojan horse, the enemy within . I see Johanna Cherry is under attack from the Trans Gender flying monkeys of Sturgeons inner circle. The MSM do all they can to keep Sturgeons betrayal under the radar. The Vow cost the Daily record dearly they learn nothing we must continue to get the message out there .

      Liked by 6 people

  7. Dear All

    I posted this on the previous article earlier today:

    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

    Like

    1. Let’s start from the bottom up, William. Asymmetrical devolution must be illegal according to the Treaty because no such thing was envisaged in 1707, and Scotland and England were to be treated in a similar fashion, notwithstanding their respective population numbers. Where does it say in the Treaty that England was to have all say in the UK based on population size? Devolution of England was not undertaken because it would have meant that England would undergo national devolution on the same basis as Scotland, with a budget that would have to be balanced, no UK capital expenditure being used for English-alone infrastructure or infrastructure of the greatest benefit to England. All UK countries would have had to borrow from a capital fund on the basis of merit and need, and to which all four parts contributed according to population size. Had this been instituted long ago, there would have been no incentive for England to grow its own economy at the expense of the other parts of the UK.

      Appeals to the HoL were neither permitted nor prohibited, William in the Treaty because the jurists who formulated the Treaty did not even envisage that the English MPs would purloin the right of last appeal from the Court of Session. This was done by sleight of hand and probably illegally very soon after 1707. There never was any intention that civil cases (constitutional ones) would ever be taken out of Scottish hands.

      Yes, indeed, the ambiguity of the ‘Westminster Hall’ reference was used to justify the purloining of the court of last appeal from Scotland to England, albeit with Scottish legal representation on the benches. It is not that it was done, but the reasons for why it was done, which were to ensure that Scotland could not interfere in the almost wholly English British constitution and overturn any HoL judgement that ran counter to Scotland’s constitutional norms, particularly in the choice of monarch, etc.

      The reason for bringing a case before the proper Scottish authority is to show that Scots Law can and will sometimes depart from English Law. Yes, the Supreme Court will arbitrate, but, often, it will remit back to the Court of Session for a final decision. It is perfectly possible, for example, that the Treaty could be ‘sound’ in Scots Law before being remitted to the international arena, as a document founded in international law. Although the Court of Session could not make a final finding on the Treaty, it could decide whether the Treaty is still extant, which it would be bound to do, as it is, never having been resiled. Only the Acts, the subordinate legislation, could be repealed in domestic law by the Supreme Court, if necessary.

      No one is arguing that the Supreme Court has both the competence and jurisdiction to overturn Scottish civil cases, but it looks very iffy to anyone who understands the Treaty Articles, and the protections afforded Scots Law therein. In reality, the Supreme Court rarely overturns Scottish civil cases now, but makes a finding and remits that back to the Court of Session for a final decision and ruling, which is a step in the right direction, but not far enough. By the way, I agree that there is British Law as well as Scots and English Law. Most strict liability motoring offences cover both jurisdictions, for example. The 2004 GRA and the 2010 Equality Act are both ‘British’ in the sense that they cover both jurisdictions separately. Even British Law is enacted separately in each jurisdiction, and I think that is what Breeks means.

      Indeed, leaving the EU was left up to the British courts. However, while there is no specific get-out Article in the Treaty, constant breaching of its very basic Articles that underpin the UK of GB by one party, England, then England as the UK, and the fact that the English MPs have never accepted that their parliament was dissolved with ours, but behave as if it is still in existence, should be enough to end the relationship and the Union. Although the Treaty cannot be framed exactly as a commercial contract, that is basically what it is: breaching of a contract entitles the breached against party to end the contract as unworkable. A partnership is presumed to be equal unless it states specifically that one party has the upper hand in all or most situations. Nowhere in the Treaty does it state any such thing, albeit that many English constitutional concepts were adopted, Westminster and Whitehall were to be the new parliament of the UK of GB. No specific reference to England as being the dominant partner or Scotland the subservient, or, in fact, any reference whatsoever to the subsumption of Scotland by a Greater England (as claimed in the Crawford and Boyle Report).

      So much of what we endure is down to Scottish acquiescence in the face of English aggressive control. We have had enough, William.

      Liked by 6 people

    2. @William

      You say “Treaty of Lisbon Article 50 clearly leaves the legalities of deciding to leave in the hands of the member state considering leaving”

      You can argue the Treaty of Union 1707 does exactly the same thing. The treaty of union contains over 20 articles which are in themselves fundamental conditions that validate the treaty. You breach the articles, you breach the treaty and give the other partner the legitimate right to terminate it under international law. It is implied that if those articles are breached, the Scottish Parliament has the right to reconvene and declare the treaty null. If it didn’t have the right to reconvene, then there would be absolutely no point whatsoever in establishing the articles as a condition for the treaty because there would be nobody to police the treaty.

      The breach of those articles is therefore a door to exit the treaty. International law offers other doors, such as the change in circumstances, the violation of fundamental principles in domestic law, or the breaching of the principle of good faith.

      The problem we have here is that England MPs and England Peers have self-awarded themselves, unilaterally it seems, the right to decide what those legalities have to be, and they keep moving the goalposts as soon as we reach them. But those England MPs and England Peers do not have any tradition whatsoever of having sitting in Scotland’s parliament nor hold the mandate of a single vote from Scotland, therefore they cannot possibly expect to be credibly accepted as speakers neither for that parliament or for Scotland, and less even pretend they have the legitimate right to revert or abolish or modify legislation another parliament passed, just because of their superiority complex, they feel they can.

      Article XXV of the Treaty of Union is very clear:

      “‘That all Laws and Statutes in either Kingdom, so far as they are contrary to, or
      inconsistent with the Terms of these Articles, or any of them, shall, from and after the Union,
      cease, and become void, and shall be so declared to be, by the respective Parliaments of the said
      Kingdoms”

      It says “and shall be so declared to be by the respective Parliaments of the said Kingdoms”. It does not say that the Parliament of Great Britain, after the union, can at its own leisure, declare void any laws or statutes of either kingdom that are inconsistent with the articles as England MPs and England peers see fit. Article XXV clearly says that it has to be the parliaments of those kingdoms themselves who do so.

      But there is another fly on the ointment here. Article XXV does not give a green light for the Parliament of Great Britain to declare void any of Scotland’s laws and statutes. It only allows for THE PARLIAMENT OF SCOTLAND to declare void those laws and statutes that are inconsistent with the articles AS THEY WERE WRITTEN IN 1706, not any modifications made a posteriori by England MPs. What this suggests to me, quite clearly, is that it was never an intention of the treaty for the parliament of Scotland to transfer to the parliament of Great Britain the right to re-write any of its constitution, statutes or laws.

      By the way, if you read the EU Article 50, it clearly states:

      “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”

      And what are the constitutional requirements of the UK? First and foremost to respect the Treaty of Union 1707, which is actually the most fundamental part of the constitution that underpins the UK of Great Britain. Another crucial part of the constitution is the Act of Union with Ireland. A Fundamental part of the Treaty of Union is Scotland’s Claim of Right. The Claim of Right establishes that forcing absolute rule on Scotland is unlawful. Scotland voted against brexit, its parliament voted against brexit and the absolute majority of Scotland’s MPs voted in Westminster against triggering A50 . In other words, forcing brexit on Scotland is forcing absolute rule on us. That breaches the claim of Right 1689, and by default the Treaty of Union it underpins. You cannot therefore claim the Uk has fulfilled those constitutional requirements established in A50. It is only because we have a covert unionist leading our anti-union majorities, with no appetite whatsoever to reassert Scotland’s constitutional rights and flex Scotland’s sovereignty muscles that the England as the UK government has got away with this assault on our constitutional rights.

      You say “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”

      I cannot believe you actually think “British law” exists when the Treaty of Union clearly states that Scots and English law should remain independent in perpetuity. The concept of “British” law is simply English law wrapped on the UJ to pretend legitimacy when crushing Scots law. This “British law” appears to stand in one principle and one principle only: “parliamentary sovereignty”, which in layman terms it means: everything goes. And that kind of summarises the “complexities” of “British law”.

      You say “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”

      The England as the UK Supreme court did not revert the ruling of the Scottish supreme court, only the English one, as you would expect them to do in line with Article XIX of the Treaty of union.

      You say “They based their decision on English authorities which pre-dated the Bill of Rights of 1689”
      Thank you for putting it so easy for me, William. The Bill of Rights is an English legal construct that predates the Treaty of Union and therefore cannot possibly legally bind or be applicable to Scotland.

      You say “This was a UK constitutional decision”
      If what was applied was the Bill of Rights or something predating it within the body of English law, then you cannot consider it under any possible perspective a “UK constitutional decision”. It was merely an English constitutional decision based on an English law construct. It was merely an English supreme court decision to overturn the decision of a lower English court. Perfectly legitimate within the context of the Treaty of Union.

      You say “Had the Inner House affirmed Lord Docherty and held for prorogation, the Supreme Court would have overturned the Inner House in a heartbeat”

      And he had done so, then in his name, the England as the UK Supreme court would have effected a direct breach of Article XIX of the Treaty of Union and another notch the nationalists could have added to their growing list of breaches of the treaty.

      You say “interesting and controversial language in TOU Article XIX”

      What exactly do you see as “controversial”? The “language” is perfectly simple, perfectly clear and perfectly innocuous. It clearly states that an English court cannot revoke the decision of an Scottish court. I see no controversy there. The only way you can perceive “controversy” in the language is when you are looking at it from the glasses of the English convention of “parliamentary sovereignty”, which is nothing but an elaborate concoction to escape the scrutiny by the courts. It is therefore not controversial language at all. It is a language that clearly throws the assumption of “parliamentary sovereignty” for Westminster right where it belongs: the bin.

      You say “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”

      And that may be precisely the reason why they included the “controversial” ,according to you, wording in Article XIX. In fact I am convinced this may be the reason why they did, particularly when they specifically mention “Westminster Hall courts”.

      If you read articles XX and XXIII of the treaty of union with England, you see nothing of these appeals. What you see is this :

      “That the aforesaid sixteen Peers of Scotland, mentioned in the last preceeding Article,
      to sit in the House of Lords of the Parliament of Great-Britain, shall have all Privileges of
      Parliament, which the Peers of England now have, and which they, or any Peers of GreatBritain, shall have after the Union; and particularly the Right of sitting upon the Tryals
      of Peers”.

      In other words, the only thing they were accepting was the right of the Scottish Peers to have a Trial by Peers. It does not say anything that the lords sitting in London in the HoL were meant to be above the courts of Scotland. On the contrary, Article XIX is crystal clear:

      “and that all inferior Courts, within the said Limits, do remain
      subordinate, as they are now, to the supreme Courts of Justice within the same in all Time
      coming; 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”

      I think you must agree that a lord committee is nothing but a “Westminter-Hall court”.

      Cynical as I am, I am suddenly wondering if one of the reasons why Blair created the “UK Supreme Court” was to bypass the reference in article XIX to “Westminster hall courts”.

      You say “In other words he thinks appeals were envisaged but the issue is not clear”

      And that might well have been Forde’s opinion. Not necessarily the truth. I do not rely on Forde’s opinion to express mine. I rather read the article and extract my own conclusions. I argue that there is absolutely nothing ambiguous at all in the text of article XIX which says:

      “and that all inferior Courts, within the said Limits, do remain
      subordinate, as they are now, to the supreme Courts of Justice within the same in all Time
      coming; 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”

      It is crystal clear: the Scottish parliament closed the door on any attempt by the future parliament of great Britain to bypass the ruling of the Scottish courts. Goodness, Looking at the behaviour of Johnson as an amateur ruler, and the recent idiotic words by Braverman as reported by the Telegraph, you can just see how wise these people in 1707 were to include the wording in article XIX and how well they knew the English ruling elite.

      You say “First of all, Article XIX, unlike Article XXV, is not styled as being “fundamental” in character”

      I don’t mean to be rude, but that is nonsense. the text:

      “”and that all inferior Courts, within the said Limits, do remain
      subordinate, as they are now, to the supreme Courts of Justice within the same in all Time
      coming; 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”

      Looks magnificently fundamental in character to me. A fundamental condition in all time coming.

      You say “Prorogation could not be legal in Scotland and illegal in England”

      Yes it could. It may be spectacularly inconvenient and embarrassing, and may create a massive constitutional conundrum that will force the England ruling elite to, oh heaven forbid, ssshhh, compromise (said in whispers), but that does not mean it could not happen.

      The existence of that risk is precisely what means keeping two bodies of law separate in perpetuity and the consequence of the stupidity of attempting to applying by force and retrospectively an English only convention to a parliament that is a hybrid between two different ones.

      The only reason why that risk has not resurfaced before is because Scotland has been sending unionist MPs who acted like sheep and did as they were told by their English masters.

      It seems to me that, again, like it has been happening for over 300 years, you are attempting here to create a pretend veneer of “unity” between Scotland and England’s completely separate bodies of law where there isn’t one by using exclusively English convention to subdue and hide Scottish constitutional tradition. Sorry, it is not credible and it will not work.

      You say: “In that Act the sovereign UK Parliament decided to delegate certain legislative functions to a devolved legislature in Edinburgh”

      The England as the Uk parliament is not the sovereign of Scotland. The people of Scotland are. What this means is that it is the people of Scotland who owns all those powers and legislative functions Westminster administers. It stands to the obvious that the custodians of Scotland’s powers are not England MPs, are Scottish MPs and the Scottish peers. What this means is that England MPs cannot “delegate” what they never owned nor were entrusted with. Only Scottish MPs and Peers can. But what this means too is that England MPs cannot simply self-award themselves what belongs to somebody else. That is theft. Encroachment on Scotland’s constitutional rights and therefore completely unacceptable.

      You say “The terms of that grant of power were fully within the jurisdiction of the UK Parliament”

      Only if you accept that England MPs hold Scotland’s sovereignty. I most certainly do not. That jurisdiction lies on Scotland’s MPs and them only, as the legitimate representatives of Scotland in that parliament and as the custodians of the old parliament of Scotland, which they can reconvene at any time because they reserved themselves the sovereignty to do so. If England MPs could vote on that was because Scotland’s MPs, unlawfully in my view, transferred temporarily our constitutional powers to them.

      You say “The Scottish members of the UK Parliament are not the “custodians” of the old Scottish Parliament”

      Yes, they are. I invite you to read the records of the old parliament of Scotland. On 4th November 1706 this was recorded in the minutes:

      “Thereafter the first article of union was again read, as also the motion mentioned in the last minute relating thereto, namely: that it be agreed to in the first place to proceed to take the first article of union into consideration with this provision, that if the other articles of union be not adjusted by the parliament, then the agreeing to and approving of the first shall be of no effect; and that immediately after the said first article the parliament will proceed to an act for security of the doctrine, discipline, worship and government of the church as now by law established within this kingdom. And, after some further debate upon the said article, a resolve was offered in these terms, namely: whereas it evidently appears since the printing, publishing and considering of the articles of treaty now before this house this nation seems generally averse to this incorporating union in the terms now before us as subversive of the sovereignty, fundamental constitution and Claim of Right of his kingdom and as threatening ruin to this church as by law established.

      And since it is plain that if a union were agreed to in these terms by this parliament and accepted of by the parliament of England, it would in no sort answer the peaceable and friendly ends proposed by a union, but would, on the contrary, create such dismal distractions and animosities amongst ourselves and such jealousies and mistakes between us and our neighbours as would involve these nations into fatal breaches and confusions.

      THEREFORE RESOLVED THAT WE ARE WILLLING TO ENTER INTO SUCH A UNION WITH OUR NEIGHBOURS IN ENGLAND AS SHALLUNITE US ENTIRELY AND AFTER THE MOST STRICT MANNER IN ALL THEIR AND OUR INTERESTS OF SUCCESION, WARS, ALLIANCES AND TRADE, RESERVING TO US THE SOVEREIGNTY AND INDEPENDENCY OF OUR CROWN AND MONARCHY AND IMMUNITIES OF THE KINGDOM AND THE CONSTITUTION AND FRAME OF THE GOVERNMENT, BOTH OF CHURCH AND STATE, AS THEY STAND NOW ESTABLISHED BY OUR FUNDAMENTAL CONSTITUTION, BY OUR CLAIM OF RIGHT AND BY OUR LAWS FOLLOWING THEREUPON; or resolved that we will proceed to settle the same succession with England upon such conditions and regulations of government within ourselves as shall effectually secure the sovereignty and independency of this crown and kingdom and the indissolvable society of the same, with the fundamental rights and constitution of the government, both of church and state, as the same stands established by the Claim of Right and other laws and statutes of this kingdom.

      Then the vote was put approve of the said first article of union in the terms of the motion, yes or no, and carried approve”

      end of quote…

      That above tells you exactly what was in the mind of the MPs and lords when they voted to ratify the first article. It is very clear what they say: they were happy for a full union in terms of succession, wars, alliances and trade, but they reserved themselves the sovereignty and independence of the crown and monarchy, the kingdom, the constitution and government. If they reserved themselves that sovereignty, then it stands to the obvious that could not have passed it to England MPs, so at all times, since 1707, that old parliament of Scotland remains alive on Scotland’s MPs and peers.

      By the way, from those words, in the parliament of Scotland in November 1706, it stands to the obvious that what they were agreeing to was not an “incorporating union”. They were agreeing to something resembling a federal arrangement where the only sovereignty they thought they were sharing with England was in the context of international law: treaties, trade agreements and defence.

      You say “which is no more”

      I invite you to read the records of the parliament of Scotland. the Scottish parliament was adjourned, not abolished. Besides this, there are other reasons why you know it was not abolished and it was never its intention to be permanently abolished:

      1. what I quoted above. In 1706 they approved the first article of the treaty of union on the basis of “RESERVING TO US THE SOVEREIGNTY AND INDEPENDENCY OF OUR CROWN AND MONARCHY AND IMMUNITIES OF THE KINGDOM AND THE CONSTITUTION AND FRAME OF THE GOVERNMENT, BOTH OF CHURCH AND STATE, AS THEY STAND NOW ESTABLISHED BY OUR FUNDAMENTAL CONSTITUTION, BY OUR CLAIM OF RIGHT AND BY OUR LAWS FOLLOWING THEREUPON”

      If they reserved themselves that sovereignty, then it was never transferred to England MPs. England MPs therefore cannot govern Scotland on their own rights. The only reason why they have got away with it for 300 years is because successive rounds of Scottish MPs have allowed them to.

      2. The concept of “parliamentary sovereignty” is English convention that only applies to the old parliament of England. There is not such constitutional tradition in Scotland. If that constitutional tradition did not apply to Scotland’s parliament, then it stands to the obvious that the Old Scotland parliament could not possibly transfer that to the Uk parliament on the advent of the union. In consequence, you cannot then, at some point in the last 300 years, on a whim, credibly claim that suddenly the UK parliament is governed by such doctrine because that is the doctrine that applied to the old English parliament. You can only claim that the part of that parliament that corresponds to England, operates under such doctrine, but you cannot make that extensive to the part of parliament that corresponds to Scotland.

      If you reactivate that doctrine for the part of the parliament of England, then what you are doing at all practical effects is resurrecting the old parliament of England. If you resurrect the old parliament of England, and you put Scotland’s constitutional tradition with England’s one on a collusion course, then it stands to the obvious that what we have in Westminster today is no longer a functional UK parliament of Great Britain, but rather a disjointed, rogue construct that has reverted to the two original parliaments which formed it in the first place and where the English parliament is attempting to impose its convention on the Scottish one.

      The principles of parliamentary sovereignty and popular sovereignty are incompatible. What is not acceptable is that Scotland and its MPs have to accept English convention as gospel when we do not have a tradition for it. This situation, which emerges from England’s political representatives inability to compromise at best, ingrained colonial mindset at worse, is totally incongruous and unsustainable. It should have rendered the parliament of the union null and void the very first time the English convention of “parliamentary sovereignty” reared its ugly head and effectively terminated the UK parliament. The only reason why they have got away with it for so long is because Scotland’s MPs, instead of exercise the sovereignty they reserved themselves in 1706 to protect our constitutional rights and the interests of Scotland, have proceeded to behave like frightened sheep, which may have bleated every now and then, but who have never put their heads above the parapet and have always acquiesced to every whim, every fancy and every constitutional banality brought by England MPs, English peers and England partisan “UK” lords. That level of acquiesecence and betrayal of Scotland’s rights is unacceptable.

      You say “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”

      I am not sure what you mean by “union constitutional doctrine”. To me it is a matter of maths, and of applying the exact same principles that were applied in 1706-7 to enter the union. I see nothing constitutional about it. If they were valid to enter this union, and the union has been consider valid despite some of those methods being unacceptable by international law’s modern standards, then surely they must be acceptable to exit it.

      So, let’s see.

      1. In 1706 after what looks like coercion and bribes, the crown party managed to establish a simple majority. That simple majority is what took Scotland into the union. A simple majority of anti-union MPs is therefore sufficient to take Scotland out of the union.

      2. In part this majority was achieved by not calling members of the country party to vote. Moving forward to the 21st century, this means the anti-union MPs, as long as they have a majority, they can repeal the treaty of union without bothering to invite the pro-union MPs.

      3. The court party and rest of Mps heard hundreds of grievances against the union from peoples from all walks of life. They ignored every single one. I guess our anti-union MPs can invite the colonial parties to air their grievances to their heart’s content, but with the guarantee they would not listen to any of them.

      4. The MPs or Lords were not specifically voted in to ratify the treaty of union or pass the Act of Union. They were simply elected to parliament . The decision of voting to ratify the treaty of union and locking Scotland into this union was done a posteriori. We could say that “they did not have a mandate” for it. Well then, this surely means that Sturgeon could have had the SNP MPs repealing the treaty of union at any point since 8th May 2015. Her attempts to remove the wheels of the majority by claiming it does not have a mandate to terminate the union are irrelevant and not credible as a valid excuse in the context of how Scotland’s MPs locked Scotland into this union.

      5. As far as I know, the crown party MPs were not backed by a majority of the popular vote. Never mind a 40% of the adult population when universal suffrage did not exist. Well then, a majority of the vote should not be required to repeal the treaty of union either, only a majority of the seats. This is confirmed by the way the first round of Scotland’s MPs were elected. The Crown party was so fearful that the Scottish population, deeply opposed to the union, would elect an anti-union majority of MPs that they decided to actually vote the MPs among themselves and start the union artificially by suppressing the rights of the people of Scotland to vote.

      Since then, the union has been artificially maintained by the colonial parties and the SNP continuously suppressing our right to terminate the union. They did this by removing from us the option to do so. Colonial parties by being overtly pro-union, even to the detriment of Scotland. Sturgeon’s approach was rendering the anti-union majorities toothless by claiming they did not have the mandate which she refused to ask for.

      You say “That however, has never happened, but did come close to happening in October 1974”

      It happened in 2015, 2017 and 2019. It is only because we have a covert unionist in control of the SNP that such route was not used YET and Scotland is not independent today. But there is always a tomorrow.

      Liked by 8 people

      1. Mia
        👏👏👏outstanding.
        I love to witness knowledge being exercised so effectively

        The only downside is we have Sturgeon leading the campaign.

        Liked by 2 people

  8. Mia, there’s no doubt whatever that the Scottish courts have competence to decide if the Scotparl can legislate for an indyref (because it says so in Part II of Schedule 6 (Devolution Issues) of the Scotland Act) but the LA very shrewdly decided to bypass the Scottish courts and take the case directly to the Supreme Court (which is not “an English court”!), as is permitted by paragraph 34 of Schedule 6, because the Lord President of the Court of Session gave a very heavy hint in the Keatings case that he thought the Scotparl did not have competence to legislate an indyref.

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    1. “the LA very shrewdly decided to bypass the Scottish courts”

      I am sorry, but I do not see that decision as shrewd at all. I see it as another attempt to waste more of our time.

      First of all, the Keatings case makes it clear that the bill had to be passed before the court could rule if it was within the competence of the Scottish government or not. The ruling in that case was that Mr Keatings’ arguments were hypothetical because the bill had not been passed. Well, nothing has changed. The bill is not a bill, it is a draft. There is nothing that makes you think the ruling would be any different this time. And why should it be? I see nothing “shrewd” in sending a draft bill to a court when a court in your country has already ruled that unless you have an actual bill to rule on, the case will be seen as hypothetical. It is only “shrewd” if your intention is to not pass the bill through parliament at all, so you are just finding a way to trash a draft so you don’t have to bother bringing the bill forward to parliament.

      If there is no reason why the Scottish court would approve that draft because the argument is hypothetical, what reason could an English court possibly have when the continuity of that court relies on Scotland preserving the union? I see none. They would be even more willing to trash the draft.

      The question here is how much this FM actually wants to pass the bill and how much she is pretending she does. If she really wants to pass the bill, she would pass it as she did with the continuity bill and then let Westminster challenge it. If the Lord Advocate thinks it is within the competence of Holyrood, then great. If not, remove the Lord Advocate from the cabinet, pass the bill and then take it to a Scottish court so it is the Scottish court who has to face the wrath of the people if they determine it is not within the competence of Holyrood when Holyrood has been democratically elected by the people of Scotland who after all has given that parliament a mandate since 2016 for the referendum.

      At the end of the day, there is absolutely no need for the Lord Advocate to be sitting in that cabinet, is there?

      But if the FM does not want to pass the bill, then you would expect that she will then find any excuse under the sun to waste time and not having to pass it. To me, this seems to be the scenario we are watching right here.

      Reading Mr Murray’s blog, it seems the Lord Advocate justified sending the draft to the Supreme Court because she was not sure if the bill was within the competence of Holyrood. Well, knowing if it is Holyrood’s competence is her job. If she doesn’t know something as fundamental as that, which has been on the cards since 2016 and certainly at the point she joined the cabinet, then what has she been preparing herself for?

      The problem is not that the Scottish court may reject the bill. I am referring to the actual bill, not the draft.The problem is if this lord advocate and FM could be deliberately seeking to find a way to avoid passing the bill and taking away from us the opportunity for the actual bill to be approved by the Scottish court. I say that because If that bill is passed, there is nothing stopping Mr Keatings and his backers (among them an MSP or MP, for example) bringing back the case to the court, because at that point it would no longer be hypothetical.

      Liked by 6 people

      1. Mia, the Keatings case was brought under common law and, absent an actual bill, was ruled to be premature and speculative etc. But the Lord Advocate’s reference is not being brought under common law. It’s being brought under a specific statutory jurisdiction provided for in the Scotland Act 1998 (Schedule 6), which is only open to the Law Officers, not ordinary punters like you, me or Martin K, and which specifically allows them to ask the courts to rule on “any … question arising by virtue of this Act [SA98] about reserved matters”.

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      2. “But the Lord Advocate’s reference is not being brought under common law. It’s being brought under a specific statutory jurisdiction provided for in the Scotland Act 1998 (Schedule 6), which is only open to the Law Officers”

        The Court of Session is the supreme court in Scotland. It is perfectly capable to deal with this case. There was absolutely no need for this Lord Advocate and the FM to undermine Scotland’s courts and going to an English court instead, unless of course what they are pursuing is to have the bill trashed under English law before even bringing it to parliament.

        The possibility of an independence referendum has been on the table since 2016. The prospect of having to pass a bill without the “consent” of England’s government has been a very real possibility since 2017. Where has this Lord Advocate been? A Lord Advocate in waiting worth their salt would have found out if the bill was or not competence of Holyrood well before they joined the government cabinet.

        Sorry, it is simply not credible. Either the duo FM-Lord Advocate are incompetent or they are deliberately derailing this to bite time.

        Liked by 5 people

  9. If the SG went to the Scottish Court f Session could unionists have scuppered it by appealing to the Supreme court

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      1. But the appeals would have to be after the court of session issued its ruling. Then we would be entering the territory of article XIX of the treaty of union.

        Liked by 6 people

    1. Good question. I’d imagine that would only be feasible if they didn’t like the decision and leave to appeal were granted under principles not dissimilar to the current clarification request.

      Corollary might be if Supreme Court is obliged to declare some form of ultra vires incompetence and its decision gets reinforced thereafter and forever, with or without prejudice/ independence, by Scotland’s own apolitical courts.

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  10. Neil King – your answer to Andrew above ” could unionists have scuppered it by appealing to the Supreme court”, is Yes. You declare yourself to be an ordinary punter, so how can you be so sure? This may help –

    Oxford dictionary:

    Supreme – highest authority; greatest, most important; a rich cream sauce.

    Supreme Court – highest judicial court in a country.

    So, a rich cream sauce, or the highest court in England where it sits as a Supreme court?

    Take your pick.

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    1. What I meant was that, if the Lord Advocate had raised her case in the Scottish Courts and they had ruled that the indyref bill was lawful, the UKGov could have appealed to the Supreme Court. I think that was the question that was asked. Incidentally, the Supreme Court is also the highest court in Scotland.

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      1. “if the Lord Advocate had raised her case in the Scottish Courts and they had ruled that the indyref bill was lawful, the UKGov could have appealed to the Supreme Court”

        And that should have been the correct course of action to follow. Then the Supreme Court would have been confronted with either ruling the same way as the supreme court of Scotland did, or facing breaching the treaty of union via article XIX. If breaching Article XIX, then Scotland could consider appealing to the European Court of Justice.

        From where I am standing, the only thing that sending the case to the English court bypassing the Scottish one is doing is avoiding the English court the inconvenience of having to breach article XIX for the sake of England’s government’s (and Nicola Sturgeon’s) being able to continue denying Scotland its legitimate right to self determination. Bypassing the Scottish court is effectively depriving us of our constitutional right of having civil cases regarding our own parliament and our own government heard in a Scottish court. Somehow this does not look like an act of kindness. Rather the opposite.

        “Incidentally, the Supreme Court is also the highest court in Scotland”

        The supreme court of Scotland is the court of session. To Scotland’s supreme court is where this case should have gone.

        Liked by 7 people

  11. Why did London make the mistake of using German mercenaries instead of the Supreme Court to keep America?…asking for a friend.
    Ghandi wouldn’t have had a chance against Truss and Braverman…

    The trouble now is that the girls won a football match so World Domination is back on the Cabinet agenda.

    Liked by 2 people

  12. I don’t seem to be able to reply to them directly so this is a reply to some of Mia’s comments above which were replies to my comments:-

    You [Mia] said: “The Court of Session is the supreme court in Scotland. It is perfectly capable to deal with this case. There was absolutely no need for this Lord Advocate and the FM to undermine Scotland’s courts and going to an English court instead”

    There’s a slight doubt in my mind (which I’m going to make enquiries about to try and resolve) about whether, in terms of the wording of the Scotland Act, the LA could have made her reference to the Court of Session as opposed to direct to the Supreme Court. Let us imagine she could NOT. She could instead have made an application to the CoS at common law as opposed to under the statutory jurisdiction of the SA but that would have suffered the same fate as the Keatings case and been ruled out as premature and speculative etc. Let’s now imagine that the LA COULD have made her reference under the SA (which, because of the special wording of the SA, is not vulnerable to a plea of prematurity etc.) to the CoS – it would very likely have been blown out on the merits considering that the Lord President of the CoS gave a very strong hint in the Keatings case that, had they not refused the case on the preliminary plea of prematurity etc., they would have refused it on the merits anyway. So the LA would have appealed from the CoS to the SC but, considering the almost inevitability of being refused by the CoS, why not save the time and go straight to the top? That also has the political merit for the SNP of not being seen to have been rebuffed by a Scottish court and having to go cap in hand to an “English court”.

    You said: “A Lord Advocate in waiting worth their salt would have found out if the bill was or not competence of Holyrood well before they joined the government cabinet.”

    How would you suggest she did that?

    You said: “Then the Supreme Court would have been confronted with either ruling the same way as the supreme court of Scotland did, or facing breaching the treaty of union via article XIX.”

    You seem to be assuming the CoS would rule in favour of an indyref being within competence and, as I’ve already said, you just so can’t take that for granted at all.

    That said, whether an appeal to the Supreme Court is a breach of art. XIX of the Acts of Union is an interesting point. It can only arise in a devolution issue because s41(2) of the Constitutional Reform Act 2005 which set the SC up declares a decision of the SC in any other appeal to be a decision of a Scottish court. In an appeal on a devolution issue, you’d need to convince the SC that the relevant passage of art. XIX doesn’t yield to parliamentary sovereignty and then, if you succeeded with that, that the SC is “of the like nature” as the Courts of Chancery, Queens-Bench, Common-Pleas, or any other Court in Westminster Hall in 1707. I don’t know enough about English legal history to speculate on that.

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    1. Clarification – I’ve since had it confirmed that, if using the statutory jurisdiction in the Scotland Act to clarify a devolution issue such as whether legislating for an indyref is within competence, the application can not be made to the Court of Session, it has to be to the Supreme Court.

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      1. Curiouser & curiouser – ignoring ardsheen’s comment below (which would presumably make for an even more flagrant breach of the terms of union than your ‘clarification’) that would imply that had there been questions on the adoption of, say, unconstitutional security measures following 9/11 (2001), they would not even have been able to be asked until 2009 when SC came into existence 🙂

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      2. This is precisely where we keep tripping ourselves up. We cannot have both the Treaty violations as the basis of an action for resiling it and leaving the Union, and, at the same time, use the Scotland Act provisions. If the Treaty stands as an extant legal and political document that still underpins the UK of GB, then asymmetrical devolution was illegal. If it was illegal, we cannot rely upon it. We simply cannot have both the Treaty and the Scotland Act as the basis, at one and the same time, of a case to leave the Union. If we rely on the Scotland Act, it is the creature of Westminster and can be repealed in domestic law, and argued by Westminster to be contrary to the Treaty, which I wouldn’t put past them, while, at the same time, they would argue that Scotland was actually subsumed in 1707. They wouldn’t win. That nonsense has already been demolished, but we must be very careful that we don’t allow Westminster to make erroneous claims. We need to force Westminster to challenge our case, not the other way round. If we rely on the Treaty (and CoR), we must rely on international law, which is probably safer, and build our case on the violations of the Treaty, backed to the hilt by the constitutional tools. Sooner or later, we are going to have to decide.

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      3. Think you will enjoy the series of articles I have coming from Friday onwards. It kicks off with a retired Unionist lawyer contending that the Claim of Right is irrelevant. I then hope Sara Salyers will reply and I think it will prove to be a very good debate as we test our argument against a competent lawyer who holds a different view.

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  13. Replying to Iain’s comment “And you think that is fair and just and just ignores the legal safeguards in the Treaty of Union?”, the Supreme Court is really just the reincarnation of the old House of Lords (court) which we’ve had for civil appeals (not criminal) virtually ever since the Union.

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  14. If they’re so content to be ruled by the Supreme Court, let’s inquire whether the Court of Session wants to be known as a Devolved Institution like Holyrood. They don’t seem terribly bothered about Article 19 of the Treaty of Union anyway.

    Then we can stop wasting time on it, and focus on Independence as our Human Right of self determination at the UN.

    After 315 years, it’s quite possible Scotland’s legal Establishment is just like Sturgeon’s Devolved Assembly; a token vestige of our Auld Scotland nowadays focussed on lining it’s own pockets and enabling the colonial insurrection of Scotland through their indifference and supine cowardice.

    I am so sick a tired of Scottish Institutions who simply wear their Scottishness as a badge but don’t give fk whether Scotland lives or dies.

    I can’t shake the feeling the whole “Devolution thing” has been a massive charade from it’s outset, and a Trojan horse designed to establish a colonial beachhead for Westminster’s faux sovereignty in Edinburgh. Strange too, that after broadly the same ~300 years, a Union which “suddenly” needs Devolution is mirrored by a Scottish Court of Session suddenly persuaded it “needs” a Supreme Court.

    Smell a rat anybody?

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    1. Breeks – “indifference and supine cowardice” – what is it you would like to see the Scottish judiciary do differently that it’s not doing just now? Give me some hard practical examples.

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      1. Scotland’s elected national representatives, national law officers and national courts have an obligation to examine the numerous violations of the ToU and CoR, and if necessary seek remedy, as per our (i.e. the Scots) constitutional rights. Scotland’s courts may then offer an opinion on whether the treaty-based agreement/contract is violated and therefore void. If found to be violated, this would then make Scotland’s political withdrawal from the UK treaty-based alliance lawful.

        However, Scotland’s national representatives, law officers and judiciary appear to have little interest or incentive in examining any violations, despite it being their duty to do so, violations which are becoming increasingly evident as Scots discover more about their exploitation and subordinate status within the UK. As the people have become ever more culturally assimilated, so then do their institutions follow the same course, and in colonial institutions “it is only the values of the colonizer that are sovereign” and “their interests that are protected” (Albert Memmi).

        Much as we see, and as we know from our history, fowk cannae ser twa maisters!

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  15. Responding to Alf’s comment (“Scotland’s elected national representatives …”), my question to Breeks was what would he like to see *the judiciary* doing differently (not national representatives or law officers) as I thought that’s who s/he was accusing of “indifference and supine cowardice”.

    It’s not the role of the judiciary to examine anything. Their only job is reactively to decide the cases that are put before them. They could certainly offer an opinion on whether the ToU has been violated/voided if someone with standing chose to place that question before them in a context where it wasn’t vulnerable to the same sorts of pleas that scuppered Martin Keatings’ case (academic, hypothetical etc.)

    The only thing it’s incumbent on the law officers to examine is in the course of prosecution of crime. Otherwise their role is only to advise the Scotgov on the law if and when asked.

    National representives, on the other hand, are a different kettle of rabbits – they can do as they please so over to them.

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    1. Yes Neil, I was assuming that such a case would require to be taken forward by those ‘of standing’.

      However, there may be certain violations with respect to The Claim of Right, a condition of the ToU, which might perhaps be considered to be criminal. https://salvo.scot/claim-of-right/

      In addition, it would seem a valid point to consider that a distinct Scottish judiciary only exists today primarily because of the ToU, therefore any violations to that particular arrangement should be a matter of considerable interest to the ‘national’ judiciary.

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    2. Neil: Martin Keating’s case fell because it was deemed to be pre emptive, based on speculation and conjecture. How could the Treaty of Union breaching be in the same category when the breaching has happened – consistently – and bringing proof to speak to its happening is eminently possible? Does the Treaty exist? Yes. Is it still extant? Yes, otherwise the UK would not longer exist. If it is both exists and is extant, then breaching it must be illegal and the Treaty falls. The Court of Session could easily, because it would be within its competence and jurisdiction, ‘sound’ the Treaty in law. It could not, however, resile the Treaty because it has not the competence to do that. Neither has the Supreme Court. The Treaty, being international in nature, and subject to international law, can be resiled only in the international arena. Would Westminster try to fool us and claim all kinds of falsehoods about both the Treaty and Scotland’s status? Of course. The English MPs have been doing so for over 300 years. It is not what England does or the UK does; it is all about what Scotland fails to do and its acquiescence in its own detriment and disadvantage. The politicians, courts and lawyers (many of them) are part of the Scottish establishment. Courts, as you say, cannot instigate cases, only hear them, and lawyers likewise. The latter require instructions from their clients. Only politicians may be forced through fear of losing their seats, to actually instigate matters pertaining to Scotland’s independence or otherwise.

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      1. lorncal, to help me respond to this, do you have a link to the text of the treaty? I mean the treaty itself, not the Acts subsequently passed by the two parliaments (which are easy enough to find). Thanks.

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  16. Replying to lorncal again – thanks for the link to the Articles. I’d actually found that link myself but thought from the fact it was headed “as they passed with Amendments in the Parliament of Scotland”, and with no reference to the English Act, that this was the Scottish Act.

    Anyway, I think the correct analysis must be that the treaty is no longer in force because it is spent by having been implemented by the two parliaments each passing their Acts and then the union actually taking place on 1 May 1707. This is on analogy with the private law of contract. When you buy a house, you enter into a contract known as missives with the seller. The seller’s obligation under the missives is to deliver a deed of conveyance (called a disposition) in exchange for you paying the price. Once that happens, the disposition is the ruling document between the parties and the missives are spent – you can put them in the bucket. So the articles (treaty) are the missives and the acts are the disposition. A further point is that Scotland and England are not still two countries in treaty relations with each other like the countries in EU are, for example. In another analogy from property transcations, they are not like a landlord and a tenant in the ongoing relationship under a lease – they are more like a purchaser and a seller in a sale after it’s completed.

    So much for the analogies with private law, I think you’d still face a problem that Martin Keatings faced which is that the courts do not entertain actions in which they cannot give a practical remedy. You said yourself that the Court of Session doesn’t have the power to grant the UK a decree of divorce, as it were. That being so, the court will not entertain legal arguments or proof about whether the Treaty and/or Acts of Union have been breached. As was said in a case in 1953 “the courts are neither a debating club nor an advisory bureau” and you get a flavour of this in the Keatings judgement when the Lord President says “Where a bare declarator [court order declaring a legal proposition arising out of a proven (or admitted) set of facts] is sought, it must have a purpose. It must produce a practical result. … A decision by this court on the matters litigated would serve no practical purpose.” So with respect, I don’t think the CoS does have the competence or jurisdiction to ‘sound’ the treaty in law as you put it.

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