The Unintended Consequences of the Law

Another article from Ewan Kennedy, who has become a regular contributor in recent months which is good for this blog because he writes very well. Yesterday’s article from Graham Fordyce which was also well received and displays that we have lawyers of talent willing to speak out on the best way forward for Scotland.

While last week’s ruling hasn’t surprised any of the lawyers whose views I’ve seen so far, most recently Graham Fordyce, I’m venturing to suggest that it may prove to be one of the most significant milestones in our journey to independence. The apparent drop in the numbers of hardened No voters, per that Channel 4 poll, while those positive stayed at about 50%, suggests that Lord Reed may have brought some more folk to realise what the rest of us have long known, that we are simply not living in a voluntary union. And they don’t like it.

As I noted in my last effort, a good part of the two day hearing in October, reflected in about two thirds of the ruling, concerned whether or not the Supreme Court should hear the case at all, on the basis that it was premature. While that was rejected, I suggest that Lord Reed has inadvertently answered another more important question that would most surely have been rejected as hypothetical had it been asked. It might have been framed something along these lines, 

“Dear Supreme Court, it’s the Scottish people here, we’re constantly being told that we have the right to self determination in law, because we are an ancient nation with our own territory, our institutions, our legal system, our languages etc, but for decades the English politicians who control us keep telling us that the time isn’t right, we must come back after a generation. How can we exercise that undisputed right to decide our own future?”

I’m not suggesting that any advocate in Scotland would have agreed to put forward such a question, nor would the court have required two days and a dozen pages to reject it, but in his abrupt, rather brutal rejection of any solution to our present impasse within national law he has most surely answered it.

Lawyers use the word obiter to describe remarks made by a judge that are  unnecessary for the actual decision and so are not regarded as binding, but they’re often the most important part of a case. There’s not the slightest chance of the Supreme Court changing its view any time soon either; after the retiral of Lady Hale it’s been taking a much harder, pro-government line than previously. Lord Reed is only fifty six and will be around for a long while yet.

Thus the result shouldn’t be the bad news it’s being portrayed as being by Unionist politicians. The one big surprise this week has been the reaction of the leadership of the SNP. The total lack of a coherent response makes one wonder if alone amongst us all they thought they might actually win. 

The way forward is now very clearly in the hands of the Scottish people and in this regard the very best piece of timing is the emergence of the Scottish National Congress. Dear Steering Group, I’m wondering if you had a mole inside the Supreme Court secretariat! (Editors note. We have moles everywhere).


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18 thoughts on “The Unintended Consequences of the Law

  1. When Ireland was part of the United Kingdom of Great Britain and Ireland from 1801 to 1922. For almost all of this period, the island was governed by the UK Parliament in London through its Dublin Castle administration in Ireland. Ireland underwent considerable difficulties in the 19th century, especially the Great Famine of the 1840s which started a population decline that continued for almost a century. The late 19th and early 20th centuries saw a vigorous campaign for Irish Home Rule.
    In December 1918 the republican “separatists” (English History) of Sinn Féin secured a resounding success in the United Kingdom general election that followed the end of the First World War. The party won 73 of Ireland’s seats at Westminster and established themselves as the dominant voice of nationalist Ireland. Rather than take their seats in the House of Commons, those Sinn Féin representatives who were at liberty assembled in Dublin’s Mansion House on 21 January 1919 as the first Dáil Éireann. They declared Ireland independent, and affirmed the existence of an Irish republic.

    a) When they gained the majority of seats……..they did NOT take them at Westminster
    b) The Dominant voices elected DECLARED that they were an Independent Republic.

    The SNP achieve the same milestone and we are defeated by a simple “NO” from London on even holding a Referendum!!!

    I’m ashamed that the SNP represent MY Nation.

    Liked by 13 people

  2. (My post from elsewhere – without the photo that I used)

    The building you see is the HQ of the United Nations in New York. Inside that building are the original Declarations of those signed (so far) by indivdual Sovereign Scots. They are lodged there to allow every Member of the United Nations to have access. That is Stage 1 – it will continue!

    The Members of the United Nations are different in many ways. Some will claim to be democracies, others are best described perhaps as authoritian, and how the peoples of the countries involved are allowed to vote within each Member can illustrate into which category they fall.

    Last Wednesday, the decision of the UK Supreme Court ruled into which of those two categories Scotland now falls. It ruled that nobody in Scotland was allowed to vote on the future of their country in a referendum following an Act emanating from the Scottish Parliament.

    (I know its maybe a bit weird to say it this way – but it doesn’t matter whether you are Yes or No – your right to vote on the future of your country has just been completely removed in those circumstances – that is profound!)

    Not O/T – worth reading, as the Northern Ireland protocol situation illustrates that it is not just us Westminster has to struggle with!

    https://ukconstitutionallaw.org/2022/11/29/colin-murray-a-new-period-of-indirect-direct-rule-the-northern-ireland-executive-formation-etc-bill/

    Liked by 8 people

    1. Quite stark when presented in those terms Mike. Prof Murray gives an interesting overview on the shenanigans currently playing out around Stormont and the sense that the pro Westminster unionists in Northern Ireland are in a determined struggle to face down their paymasters.

      Meanwhile the Independence seeking(?) SNP group(ie’s) at Westminster continue to refuse settling up on behalf of Scotland and as they say doon in yon place, they are “CONTENT”. Nae struggle there then!

      Liked by 7 people

  3. Great that lawyers are on the case . Let’s hope they can frame the legal reasoning necessary for a case to be brought to international courts. Alf Baird in his braw buik, Doune- Hauden has done sterling work building a case for Scotland being considered a cultural colony . If that case could be hardened up then the special international laws regarding rights of colonies could kick in and offer the high road to independence.. Likewise S Salyers has done a massive wheen of groundwork on the nature of the acts of union and the Sovereignty of the Scottish people . At the end of the day though , the international courts have to come into the picture and lawyers/jurists are crucial to charting the way forward to those courts..

    Liked by 6 people

    1. Thanks for the kind words, Brian.

      Various elements are clearly coming into play, with Sara and Salvo’s excellent work on the territorial theft of Scot-Land following the unearthing of our hidden constitution, and adding in the always oppressive actions of colonialism, the latter more or less confirmed by the UKSC decision (as well as its ignorance of national self-determination), much as lawyers Ewen and Graham outline. A compromised daeless dominant national party elite aye forms part of the picture, letting a hale independence movement doon, as confirmed by postcolonial theory; hence the shift towards a Liberation Movement and National Congress.

      Colonial/Cultural Assimilation has perhaps gone too far for any Scottish court to deal with such a critical matter as oor verra ain Scottis soveranety an thon mankit treaty (which not coincidentally protects their very existence and privileges) plus the Scottish legal establishment having been ‘out of the game’ in constitutional and international treaty terms for such a prolonged period; main focus of a colonial justice system is to keep the native in check and allow the colonizer to plunder. The auld nation has been raither lat doon by oor ain institutions (since “built by the colonizer” and “to protect only his interest”/Memmi) in the slingin o a deifie tae ongoing treaty violations; hence the international courts seem the logical legal road to tread if we are to see return of oor soveranety and territory.

      Liked by 7 people

      1. Agreed Arayner, that’s a necessary precondition . Without a people’s mandatec, all legal niceties are secondary.

        Liked by 1 person

  4. The BBC programme “Politics Live” on Tuesday 29th November had a section on the Supreme Court decision. There was Liz Saville Roberts, a Plaid Cymru MP, Sonia Sodha, a Guardian journalist, Ben Bradley, a Tory MP and Alys Denby, Deputy Director of CapX. That is there were three Unionists and one Plaid Cymru MP. Ms Roberts was very articulate and argued her corner very well. However, she was up against three Unionists. She was unable to counter their anti SNP, anti Independence comments.
    Once again the BBC sets up a discussion which is necessarily one sided with the Unionists trotting out all the usual comments and only one person whose first concern is not Scotland to try to argue against them.

    Liked by 8 people

  5. I was absolutely disgusted to see and hear our westminster leader say “We will accept the Supreme Court ruling” instrad of The Uk
    supreme court has no standing in Scots Law
    As per the act if union

    Liked by 3 people

  6. sorry, don’t agree with Ewan’s assertion that we are not in a voluntary union as a result of the Supreme Court decision.

    The Supreme Court wasn’t posed that question,.

    I agree that a conditional convention should be convened to plan for a provisional government to be formed .

    when the SNPs withdraw from Westminster to take part in the Provisional Government then that is not UDI. In the absence of agreement with RUK that is the dissolution of the Union which makes life very difficult for the rUK government internationally.

    the U.K. Supreme Court has no status to judge an international treaty and one party dissolving it. Domestic law does not apply!

    as i’ve mentioned before the go walk depends on support from the people, and the SG should be focused on taking control of Scottish public funding now so any vindictive refusal by rUK gov to meet state pensions, etc . is more than covered by Sg funds.

    Liked by 1 person

    1. Based on my background in this area I wrote about this in depth a while back – about Scottish Government funds and where they are actually held. Held captive!!!

      It’s like a lot of things imho – we have a lot of waking up to do, and the level of prepaaration needed pre-independence is immense!

      Some extracts (Source link below)

      Government Banking

      1. This section gives guidance on the banking arrangements that should be adopted by all bodies to which the Scottish Public Finance Manual (SPFM) is directly applicable, including the constituent parts of the Scottish Administration (i.e. the core Scottish Government (SG), the Crown Office and Procurator Fiscal Service, SG Executive Agencies and non-ministerial departments) and bodies sponsored by the SG.

      2. All bodies to which the SPFM is directly applicable, including bodies sponsored by the SG, are required to have their core bank accounts with Government Banking, except where the SG’s Treasury and Banking Branch (T&B) can be persuaded that the holding of such an account would not be cost effective.

      Opening of government banking accounts

      9. Funds held in bank accounts with Government Banking have the effect of maximising funds available to the UK Exchequer, thus reducing the cost of government borrowing to fund cash deficits or increasing government income from interest earned on cash surpluses. In order to maximise the benefits to government, all bodies to which the SPFM is directly applicable, including bodies sponsored by the SG, are required to have their core bank accounts with Government Banking, except where the SG’s Treasury and Banking Branch (T&B) can be persuaded that the holding of such an account would not be cost effective. The core bank account should be used for the receipt of funding and the processing of all main payments and receipts …

      Source:

      https://www.gov.scot/publications/scottish-public-finance-manual/banking/banking/

      Liked by 1 person

      1. Put more simply … we normally use the phrase ” “possession is nine-tenths of the law”

        In the case of SG funds (every penny as near as makes no difference) Westminster decided:

        Nah! -it should be “possession is ten-tenths of the law”. We’ll keep it all with us, thank you!

        Liked by 1 person

      2. That shows how short-sighted it has been for the Scottish Government not to have implemented a policy to replace the current council tax with a form of Annual Ground Rent, which would apply to all land in Scotland.
        Such a move would have brought in more money from large estates and from bodies holding large areas of undeveloped land (as well as being fairer) and made local authorities less dependent on central Scottish government for the funds needed to run their services and so hree up government money for other projects, such as improving infrastructure to help the economy.
        I wonder why this idea was not put into policy.

        Liked by 2 people

      3. I would suspect that SNP and Alba walking from Westminster to form a Provisional Scottish Government is a very real fear for the establishment.

        And as has been mentioned the Supreme Court would have no locus.

        The whole Treaty issue, sovereignty, claim of right, has been hidden, maybe in plain sight too, for a long time.

        It is not at all clear that England is going to hold Scotland for all that much longer.

        Liked by 2 people

    2. Sorry if you’re reading me that way, Graeme, it wasn’t my intention. Basically what I meant was that Reed’s ruling counts in national law, so the solution lies elsewhere, not that I agree with him.

      Liked by 2 people

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