Ewan is becoming a regular on my blog. He is a solicitor by profession and lives in Argyll. I have more articles coming from other lawyers coming soon. Like buses they all turn up at the same time.
Comments on the Supreme Court
I can’t say I’m surprised at the ruling. The only good thing I can say about it is that at thirty five pages it’s extremely short, given that at the start Lord Reed warned us all that the justices had about 8000 pages of material to study and would need between six and eight months to read them all.
At the hearing a great deal of argument was presented by the UK to the effect that the case was premature, failing which it didn’t come within the rules, failing which the judges should decide to use their discretion and refuse to decide the issue anyway. Presenting those arguments no doubt enabled the oleaginous Sir James Eadie KC to boost his fee income, but it was never likely to succeed. It always seemed most unlikely that this most senior group of judges, having read, at least, the preliminary material and got themselves geared up and gowned up would have denied themselves the chance to rule on the most pressing constitutional issue of the day, especially when, being “Supreme”, they couldn’t be overruled.
That means that we can disregard the first two thirds of the ruling as of interest perhaps only to a constitutional historian and get to the guts of the case.
First, let’s look at the argument presented by the Lord Advocate, Dorothy Bain KC, who appeared in person, unlike her UK counterpart. I will not join with others who have accused her of being a Unionist, or generally offered abuse. She may even be the first person in her position for some time who correctly understands the duty to be impartial.
The Lord Advocate correctly realised that the case was before a national, not an international forum and a ruling would only be given within national law. The issue was, of course, whether holding a referendum would “relate to” the basic reserved matters of the Union and the UK Parliament. She presented a rather dry, technical analysis of case law to suggest that the expression should be given a narrow meaning, based on the idea that any referendum would be advisory only, despite being of great significance politically.
In the event, stated briefly, the justices have decided to adopt the same meaning of “relate to” that most of us would understand in normal speech. How often we hear judges being criticised for giving words special meanings to secure a desired outcome; here they didn’t have to bother.
Secondly, we come to the document that had to speak for itself, the submission from the SNP. In essence this made the case for the right of self determination of the Scottish nation under international law and in particular the United Nations General Assembly Resolution 1514.
It was entirely predictable that the justices would rule this out of hand, on the basis that the argument is one that should be made in an international forum, but in addition Lord Reed sees fit to cite the following paragraph from the Canadian Supreme Court case:
“In summary, the international law right to selfdetermination only generates, at best, a right to external selfdetermination in situations of former colonies; where a people is oppressed, as for example under foreign military occupation; or where a definable group is denied meaningful access to government to pursue their political, economic, social and cultural development. In all three situations, the people in question are entitled to a right to external self-determination because they have been denied the ability to exert internally their right to self-determination. Such exceptional circumstances are manifestly inapplicable to Quebec under existing conditions.”
Reed goes on to declare that Scotland does not qualify under any of the three situations described, including the one I’ve highlighted. This can only be read as an unevidenced, spiteful kick in the face of anyone who has been living in Scotland in the last forty years or so, since we last had a UK Parliament elected by anything resembling a majority. From living under a system of more or less consensus politics Scots have had to thole Thatcherism followed by alternative neo-liberal regimes that a majority of us have never voted for. I won’t lengthen this essay with a list of what we’ve lost as our national and community assets have been stripped out and flogged off; we all know the story.
As anyone who’s read my previous efforts will know, I’ve been arguing for an international solution for some time. I’ve been criticised by some who argue that we Scots should take the colonial route and regret that I remain unpersuaded of that, when a much clearer course is staring us in the face. It’s been recognised time and again that we Scots, unlike Quebec, are a nation and as such entitled to decide our future. Does the highlighted paragraph above not define us, precisely?
As I’ve been writing this today I’ve been seeing comments and statements streaming out about where we go from here, so I’ll stop for today by saying that the immediate reaction from the SNP is staggeringly disappointing. One would have thought that some consideration would already have been given as to how a de facto referendum via a general election might work; instead we’re to be offered yet another conference.
Indeed the SNP Party emblem must be changed to a carrot as a matter of urgency.
I am, as always
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