Scotland’s independence referendum–the law and the Supreme Court

An extract from what I had to say on the law and Scotland on 13th October UK Supreme Court - constitutional and independence implications

This also contains links to a number of earlier blogs on Scottish Law and the Supreme Court – see URL links.

EXTRACT

Thursday, 13 October 2011

In the light of the recent UK Supreme Court judgment (I spell it judgment against my instincts towards judgement because I believe this is legal practice) and certain remarks about what the Scottish Parliament can and cannot do - which some have interpreted as a shot across the SNP Government’s bows in relation to the referendum - a number of correspondents have asked me if I plan to comment. Firstly, this is properly Peat Worrier’s blog territory, and secondly, I have said pretty much what I wanted to say about the UK Supreme Court in the following blogs -

The UK Supreme Court and the Scottish legal system

The UK Supreme Court–FMQs 16th June 2011 – Holyrood

The UK Supreme Court, the judges–and the Union’s future

The UK Supreme Court–the debate polarises and takes on new dimensions

DAVID CAMERON’S STATEMENT, COMMONS DEBATE 10th Jan. AND SUBSEQUENT FALLOUT

I am not a lawyer. Fortunately, nationalists have a lawyer who blogs – Lallands Peat Worrier, who recently outed himself on television, revealing a long-haired young man – Andrew Tickell who was not at all like the image built up by many readers of his superb blog, who may have fondly imagined him, as I did, as a crusty old Edinburgh lawyer in a old leather armchair, with whisky in hand.

Anyone who wants an informed and authoritative account of the law as it relates to Scottish and UK affairs, independence and referendums should go to his blog Lallands Peat Worrier

My perspective of the law as it affect Scotland’s independence is that of an informed voter, with a special knowledge of negotiation and the dynamics of reaching agreement in situations of conflict, especially ones that are defined by formal and perhaps legally binding agreements and contracts. In other words, my expertise lies in defining how a party to a dispute should regard the law and how that party or parties may - or may not - use the law to resolve disputes, i.e. a client perspective.

FUNDAMENTALS AS I SEE THEM

The law as it applies to political and constitutional matters is a very different beast to the criminal law and civil law, especially when that law reaches beyond the nation state, e.g. European Law, international law and human rights legislation.

The issue between Scotland and the UK involves Scottish Law, UK Law, especially as it relates to devolution, European Law and potentially international law.

Two ancient legal systems exist side by side, and have done for over 300 years in the United Kingdom. The Union made one aspect of that law supreme across the UK through the UK Parliament, Westminster. Scotland has its Parliament and its devolved administration by courtesy of that law, The Scotland Act, and the extent of the Scottish Parliament’s powers are determined by that Act, and can be altered or revoked by the UK Parliament.

The UK and Scotland are also bound by European law and by the European Human Rights Act and the European Court of Human Rights at Strasbourg.

Until the establishment of the UK Supreme Court, appeals on certain matters of law went to Strasbourg. The UK Supreme Court was set up to provide a UK Court of Appeal on Human Rights matters, but also to rule on constitutional matters.

It was no coincidence that the UK Supreme Court was set up with such powers at the same time as the Westminster Government became aware that the independence of Scotland had become a very real possibility, with huge constitutional implications.

Scotland’s wish to be independent means that it wishes to be independent of all UK law, and therefore of the UK Supreme Court. But that system of law, and specifically that court – the UK Supreme Court - can restrict or frustrate Scotland’s attempts to be secure its independence – or at least, it can attempt to do so.

It can be argued that it was set up at this time to permit it to do exactly that, and no amount of high rhetoric about the rule of law can obscure that stark possibility. All the indicators in the dispute that has built up since the UK Prime Minister’s ill-judged intervention into Scottish affairs tend to support that conclusion.

That is not to say that the UK Supreme Court would accept this attempt to politicise its role – one can hope that they wouldn’t - but remember the the UK decided to go into an illegal war in Iraq on very dubious grounds, based on legal advice at the highest level, advice that was changed at the last moment.

The message is – We, the UK Government, will use the legal system that Scotland’s independence seeks to be free of to control and limit its right to consult the Scottish people. Unless Scotland accepts the UK Parliament’s conditions for the referendum and its right to control and monitor it with its own designated bodies, the UK Supreme Court will be used to challenge, delay and block the referendum, and declare it illegal.

In other words, the interest group that wants to keep Scotland in the Union, and bound by this framework of law, will attempt to use that law to stop Scotland from determining whether the voters of Scotland wish to remain a part of that legal system.

Of course, all of this mumbo-jumbo is cloaked in language that suggest that the UK has Scotland’s best interests at heart, and that they wish to facilitate the referendum. No one who watched and listened to all of yesterday’s one-and-a-quarter hour debate in the Commons could seriously entertain such a proposition.

This is a stark, high-stakes political game, with the law being used as a tool in that game to maintain the dominant power structure.

The UK Government -

- did not want a Nationalist Government – the devolved settlement and the electoral system were specifically designed to prevent nationalists from ever gaining power

- did not want a referendum at all, and frustrated attempts by the minority Scottish Government to call one in the last term of SNP Government

- now, faced with the inevitability of a referendum being called, the UK Government wants it to be held at a time and in a manner that will ensure that independence is rejected, and are willing to use the law and specifically the new UK Supreme Court to block or delay the referendum if their conditions are not met.

The Scottish Government, in contrast, wants to hold the referendum on their timescale, identified broadly in the election campaign as the second half of the Parliamentary term, and now specifically confirmed as Autumn 2014, with the Scottish Government determining the timing, eligibility to vote, the questions and the question formulation. They also want to win.

This is not a legal dispute – it is naked power politics, with a willingness to use the law to further the political objectives of each party to the dispute.

But the SNP Government can claim the moral high ground, because their wish is to determine the will of the Scottish electorate democratically, and to accept their verdict.

The last thing the UK Government want is to allow the Scottish people their voice, because the Scottish people have decisively rejected the two parties that now constitute the UK Government.

The last thing the Labour Party wants is for the voice of the Scottish people to be heard, because the Scottish people decisively rejected them on May 5th 2011, as the people of the UK decisively rejected them in May 2010.

The UK Labour Party will have a dismal future when Scotland becomes independent. All Scottish Labour politicians (MPS) in Westminster (and all Scottish Tory and LibDems MPs) would become redundant overnight, Scottish Lords would be in a very strange place indeed, and only Scottish Labour politicians in Holyrood, i.e. MSPs, would have a political future, and perhaps a bright one, in the new Scotland.

Some are beginning to recognise this.

COMMERCIAL AND CIVIL ANALOGIES

Consider what happens if a breakdown occurs in a a civil contract of long duration. Firstly, let it be clearly stated that it does not take both parties to end the relationship – it only requires that one is determined to end that relationship. The only question then is the manner in which the relationship is ended. It can be done amicably and legally by agreement and by observing the previously agreed terms of the relationship, or one party can simply walk away unilaterally, leaving the other party to determine how they will react.

The other party cannot stop the relationship ending – they can only attempt to penalise the party walking away, by either invoking legal penalties provided for in the original contract, or attempting to secure damages by law.

Ideally, parties negotiate the terms of the breakup without invoking the law, or perhaps use the law to assist in the negotiations and the drafting of the agreed settlement.

The decision on whether or not to use the law in such dispute is made by the parties to the dispute, unlike under the criminal law, where if a breach occurs, the prosecuting authorities may decide to invoke the law whether or not the parties agree.

(If I murder another person, the decision to invoke the law and to prosecute does not lie with the dependants of the deceased. If I rob a bank, the bank can’t decide to let me off – a crime has been committed and the law will act regardless of the will of the parties.)

The way in which disputes over the independence of nations are resolved follow loosely the same principles – independence can be achieved by negotiation, with reference to the law, it can be achieved by force, ignoring the law – i.e by revolution - or it can be achieved by UDI – a unilateral declaration of independence. If this is not challenged, it is called a velvet revolution, e.g Slovenia.

There is are abundant historical examples of countries achieving their independence, some very recent, many from the British Empire, and there are current examples that are works in progress, e.g. the Arab Spring.

Of one thing you can be sure – the law will not be the key determinant in Scotland’s future – it will be the will of the people, and, I hope, the good sense of the politicians, with minimal reference to the law.

Read my previous blogs (see links above) for more information. If the law itself interests you, read the estimable Lallands Peat Worrier.

Saor Alba!

The Baron of Aikwood – man of steel …

The Scottish Government and the First Minister have to be polite to David Steel, as a former Presiding Officer of the Parliament – but I don’t …

Scotland’s two dying ‘quality’ dailies, The Scotsman and The Herald are in a state of high excitement over Lord Steel’s belated statement on the reason’s for his resignation from his role as one of the two independent advisors who consider complaints on alleged breaches of the ministerial code. No doubt some lazy television producers will also pick up this non-story to save them the trouble of sending someone out of the studio to find some real stories that haven’t already been trailed by the press.

David Steel professed himself “appalled” at Alex Salmond's and Kenny MacAskill’s remarks on the judiciary in the Supreme Court debacle, and rather discourteously described the First Minister’s letter of thanks for his services as polite and “effusive”. He could have said fulsome, because that is what he clearly meant, but the chances of the partially-literate gentlemen of the Scottish Press understanding this word in its proper meaning of cloying and excessive were small, so effusive had to serve.

OED: Effusive: gushing, demonstrative, exuberant.

The Baron of Aikwood is an elder statesman of a party that has regularly betrayed the voters – he kept Labour in power in 1977 in the infamous LibLab pact, for which the Liberals got zilch; when he was elected as leader of the Liberals in 1979, their fortunes took a nose dive, then in 1981 came the farce of the SDP-Liberal alliance, and after the 1983 general election, the country laughed at farce that was the Two Davids – David Steel and David Owen, with Steel being treated with barely concealed contempt by Owen, a relationship memorably sent up in Spitting Image.

At last he got out of UK politics (unless you count the House of Lords!) in 1997, retiring from the Commons and becoming a life peer. He was elected to the Holyrood Parliament in 1999 and became the first Presiding Officer in the same year.

David Steele is a member of a party totally opposed to Scotland’s independence, a party that is now a sad, small group within the Scottish Parliament, after the LibDems' betrayal at UK level of every principle they ever had by entering the Coalition with the Tories, one that effectively destroyed Tavish Scott and his party in Scotland, and a betrayal that would destroy the LibDem UK party if they had to go to the electorate right now.

The LibDems in Scotland eagerly went into coalition with Labour in the Scottish Parliament, but refused, on anti-independence grounds to go into coalition with Alex Salmond’s minority administration of 1997/2011.

Two Scottish LibDem MPs in this benighted incompetent Coalition at Westminster, Danny Alexander and Michael Moore have been busy doing their worse for the UK and Scotland respectively.

Baron Steel of Aikwood is solidly embedded in the UK Establishment, in the Union, in the unelected and undemocratic House of Lords and has a vested interest in the continuation of both of these unelected power groupings. He is unsurprisingly hostile to the referendum and the independence of his native land.

I do not regret his resignation from the offices he held at Holyrood, and I would not regret his passing from Scottish politics entirely to retirement in his Borders home, and a cosy seat in the House of Lords - while it lasts. He has as little to offer Scotland as his party has – he is a highly typical representative of what I see as being wrong with Scottish and UK politics.

What I do value is politicians such as Alex Salmond and Kenny MacAskill, and I especially value their vigour of expression in defending the interests of Scotland. The electorate clearly agreed with me in May 2011, and neither they nor I will shed any tears for the Borders Baron Aikwood.

Moridura rides to the rescue of unionists

At heart, I am a compassionate man. This is not immediately evident to some, because I am also a passionate man when in pursuit of an argument, and I can allow vigorous expression of a viewpoint to pass all too easily into hectoring, a mode I have nothing but contempt for in others. I am also guilty of sarcasm on occasion, defending it as heavy irony, which sounds more intellectually respectable. I even have recourse to ad hominem debating styles. (Since the political demise of Maggie Thatcher and Wendy Alexander, I have not used ad wominem styles, although Jackie Baillie has brought me close once or twice.)

My midsummer resolution is therefore to abandon these contemptible approaches, and allow all my natural qualities of sympathy, empathy - and any other pathy I can think of - to come into play.

Never let it be said, therefore, that I passed by a unionist politician, former spin doctor or commentator in distress, averting my eyes as they writhed in the helpless grip of failed ideas and arguments, struggling to rise to their feet and pursue their quest for long-lost ideals and values. A great wave of pity almost overwhelms me as I listen to their confused mutterings, as they rage against their fate, and I am moved to offer succour to the suckers. (Sorry - a momentary lapse there …)

So here is my guide to unionist politicians and commentators in their hour of greatest need as they try to answer the great question their wavering supporters ask - why should Scotland remain in the Union?

ADVICE TO DEFENDERS OF THE UNION

Stop pretending that you have any principles, ideals or values, since the evidence is stacked against you. Focus on fear, greed and naked self-interest. (This comes as second nature to Tories, but poses some difficulties for Labour and the LibDems.) Try to cultivate paranoia about things happening in far-off countries.

Stay away from the Monarchy. The SNP have nailed that one by committing to a constitutional monarchy after independence. And don’t go on about republicans within the SNP - there are at least as many unionist republicans as there are nationalists - maybe more in the Labour Party.

Play up the war and military thing, especially the idea of foreign wars as a job creation scheme.

Try and find a reasons for building ships, ideally aircraft carriers. No need for aircraft to put on them, or even for them to put to sea - it’s the Clydeside jobs, stupid!

The nuclear things can still play well if you’re careful - avoid words like Fukishima, pollution, radiation, waste, annihilation etc. Make sure the BBC doesn’t run The China Syndrome or any documentaries featuring Hiroshima or Nagasaki. If nuclear submarines bump into to each other, or get lost, or run aground, or crew members shoot their officers, try to pass it off as either a joke or an aberration.

Persuade parents that it’s a good thing for their adult children to give their lives in unwinnable and illegal wars. Make the most of the patriotic ones and quickly move to silence the ones who raise difficult questions. Don’t look for unionist politicians who have children on the frontline - they are as rare as hen’s teeth.

Keep attacking Alex Salmond personally, even though it doesn’t seem to work. Regularly remind Scots that he is confident, decisive, in control of his party, is an election winner, and cares about the poor, sick and vulnerable - sooner or later, they’ll come to despise these qualities, since they clearly don’t fit well with unionism.

Make sure that any legislation passed by the SNP is doomed to fail, especially if it is aimed at dealing with endemic problems in Scottish society like alcohol abuse, drug abuse, sectarianism and inequality. The best way to do this is to claim that any specific measures backed by law will be certain to fail, while emphasising that well-meaning ‘educational’ initiatives, leaflets, public information commercials, etc. produced by  industry-funded and controlled bodies will sooner or later get results, although they is little evidence that they ever have or ever will.

Emphasise the need to move very slowly in enacting new legislation, because it is better to be 100% right at some nebulous point in the future than do something that is 90% right now when it is needed.

A few more deaths, stabbings, riots, violent assaults and chronic medical problems are a small price to pay for getting every clause, sub-clause, dot and comma completely accurate. This also serves the secondary objectives of making even more money for rich lawyers and giving the vested interests more time to find other ways to combat any law that might dent their profits.

Remember the following six key principles -

Politicians who make a real effort to help to tackle the problems of alcohol abuse, drug abuse, sectarianism and inequality by legislation are the enemies of freedom, big business and their right to make money.

The people are free to destroy themselves in any way they see fit, especially the young and the poor.

Their inalienable right to to destroy themselves and the society of which they are a part must be protected at all costs.

Those desperate for alcohol and drugs will be undeterred by any laws or restrictions that attempt to control their behaviour.

Ultimately, it’s the fault of those with the problem, not those causing it, and above all, it is the fault of the poor.

None of their problems matter so long as they remain British, but everything would get worse if Scotland was independent.

But do offer them well-meaning advice. Set up little stalls near riots, or in high street drinking dens, or in the notorious trouble spot at old firm games, staffed by persons with impeccable middle class credentials, to offer helpful advice about personal morality, self-control and the family.

A little bit of God and old-time religion won’t go amiss here. Offer free CDs of Abide With Me and The Old Rugged Cross as an alternative to the The Sash and the Soldier’s Song. Suggest the old 1950s Johnny Ray hit, Cry as non-inflammatory substitute for No Surrender. Correct misunderstandings that result in the singing of The Cry was no surrender - etc.



Show the dangers of singing Danny Boy, since either side of the sectarian divide can claim it as their own, and show that the SNP have overlooked this manifest danger.

Ensure that all attempts to prosecute under the new legislation are regarded as a breach of human rights, and refer them to the UK Supreme Court, which will instantly condemn the prosecutions and release the worst sectarian offenders back on to the terraces to resume their behaviour.

Make it clear that legislation will inadvertently criminalise the carrying of bottles of waters to football matches in case it is holy water, and that gurgling while drinking such  suspect water may be seized on by the police as evidence of surreptitious sectarian chanting.

Demonstrate that anyone with anything green around their person or their property, e.g. grass, may be arrested. Show that wearing a blue tie (e.g. certain SNP ties) may be regarded as incitement to violence. Show that the SNP legislation risks criminalising the 12-bar blues, and therefore all jazz and popular music using this musical form.



Similar risks exist in relation to bluegrass music.

Get the cooperation of sympathetic newspapers,  media news channels and lazy journalists, i.e. most of them, to publicise these and similar acute dangers of the new legislation. Ignore completely anything the police might say - what do they know about public order and criminal behaviour?

SUMMARY

I hope the above advice, offered in a spirit of reconciliation, will prove useful to unionist politicians and commentators, - especially former spin doctors associated with failed or otherwise discredited politicians - who are anxious to re-invent themselves as media personalities, and achieve a new reputation as detached, disinterested observers of the new political scene, one that they have so recently monumentally misunderstood and misjudged.

Redemption must be open to all comers.

Keep it simple - the arguments decoded

THE REFERENDUM

The unionists want a referendum now because the uncertainty is harming recovery in the economy.

Decoded

The unionists want a referendum now because the polls indicate that Scots would say No to independence. They want the SNP to lose.

The SNP want a referendum later because the economy is a pressing priority, because the Scottish people must have time to hear and evaluate the arguments - and because that’s what they promised in their manifesto

Decoded

The SNP want a referendum later because the polls indicate that Scots would say No if balloted now. They want the SNP to win at a later date.

SUPREME COURT

The unionists say a UK Supreme Court is necessary to provide a final court of appeal across the UK and to relieve the pressure of human rights cases on the European Court of Human Rights, and to handle matters of constitutional significance.

Decoded

The unionists set up the UK Supreme Court to keep the devolved Parliament of Scotland and the Assemblies of Wales and Northern Ireland in line, and to control any attempts by Scotland to secure independence by asserting the right of the Supreme Court to rule on constitutional matters, regardless of the law of Scotland and the Act of Union. A secondary motive was a deep distrust of our European partners and the European Court of Human Rights in Strasbourg.

THE SCOTTISH PARLIAMENTARY ELECTION

The unionists claim that the SNP government was elected by a minority of Scots, given the share of the vote in relation to the percentage of the electorate voting. They also argue that Alex Salmond and the SNP  will abuse their mandate by riding roughshod over the unionist opposition.

Decoded

The Scottish voting system, with the d’Hondt method of proportional representation, was deliberately set up to ensure that the Scottish Government would be ineffectual because no one party would have an overall majority, especially the SNP. Remember, this was set up by a Government elected by the first-past-the-post system, and is now supported by another Coalition government who mounted a successful vitriolic campaign to defend the first-part-the-post system, the antithesis of what was intended for Scotland. But most of all, the unionist attack on the SNP mandate is based on the fact that they are bad losers.

SCOTLAND’S SOCIAL AND WELFARE POLICIES

The unionist position is that Scotland can’t afford their generous social policies, that they are funded by Westminster, and that they must be retrenched in the light of the recession. Today, Frank Field, a former Labour Minister, has tabled an amendment to the Scotland Bill to limit Scotland’s public spending to within 5% of England’s public spending.

Decoded

The British Government is engaged in an unwinnable war in Afghanistan and was engaged in an illegal war in Iraq. It is now engaged in a misconceived operation in Libya. All of these involve an enormous drain on the UK public purse. The Coalition Government is engaged in an attack on public services, on the NHS, and on the ordinary people of the UK in an attempt to make them pay for the folly of two British Governments and greedy irresponsible bankers.

The UK must have its wars and foreign entanglements to serve the military/industrial complex and its insatiable greed, fed by the M.O.D. and the Foreign Office.

They cannot afford to let the people of England look north to a country, Scotland, and to a government, the SNP Government, that cares about its people, about its poor, its old and vulnerable, its pensioners, its sick and disabled and about the public services that serve their needs, and make invidious comparisons and draw the obvious conclusions.

Least of all can they afford to let that country, Scotland, achieve its full independence from their corrupt, declining empire.

The UK Supreme Court, the judges–and the Union’s future

I an indebted to an email from John Higgins for prompting the following reflections on the UK Supreme Court debacle.

I mustn't murmur against the judiciary, but with all due respect to the rule of law, it has never achieved the ideal of entirely standing outside of politics, nor has any judiciary in any country or kingdom or empire at any time in history. By the very nature of the ancient concept of judges, the process of appointing them is not, and never can be truly democratic (it doesn’t for a moment pretend to be in Britain) nor can it ever be free from the culture and the political climate within which it exists.

Of course the supporters of the UK Supreme Court and its recent human rights judgements argue that this is just what they are trying to do – stand outside politics - and that the Scottish Government and Alex Salmond are the nasty, sordid face of politics trying to pervert that aim. But then, they have that UK in the title of the Court to contend with. One only has to look at the most vocal supporters of the Supreme Court to realise that most – but not all - of them come from an anti-independence, unionist position, and that their opposition is in fact highly political. Last Thursday’s FMQs demonstrated that fact unequivocally, despite all the high-minded rhetoric – and unintentional low comedy.

(There was a documentary on the BBC Parliament channel  some time ago on the formation of the UK Supreme Court that I recorded - but now can't find – that referred to the mysterious process of selecting and appointing judges, and I must track it down.)

The bottom line is that Scottish Law and the Scottish judiciary exist within a complex and confusing legal structure created by the Union of 1707, and the creation of the devolved Parliament and Assemblies, and membership of the EU has multiplied that complexity exponentially.

The UK Supreme Court is in effect UK law, yet there is no such thing as UK Law - this is the contradiction that Alex Salmond sees, and he is determined to highlight the dangers that he sees flowing from it.

The most jaundiced interpretation of the situation is that the UK Supreme Court was created to keep the devolved nations in check. The less extreme interpretation is that it was created with totally honourable and high-minded intentions, but that its purpose may be perverted by politics. If this happens, it will be the politics of the dying empire - the UK - that does the perverting. Failing empires do not go quietly into that good night – they rage, rage against the dying of the light. (My apologies to Dylan Thomas!)

One only has to look at how United States Supreme Court judges are appointed - a highly political and polarised process - to realise that not even the most exalted, altruistic individual is free from political influence or pressure. And remember, judges were all members of the legal profession before they were appointed, a profession that  is heavily represented in the Westminster Parliament.

The break-up of the Union threatens the entire British Establishment - the aristocracy, the Monarchy (in its present dispensation) and the military/industrial complex, and the ramifications reach into European and American foreign policy. 

The judges, however principled, cannot detach themselves from the society within which they reach their judgements and of which they themselves are a part,  nor can they stand apart from great historical and constitutional movements - and we are in the midst of one right now.

I am not a lawyer, and have no legal training, so what the hell do I know? What I do know is that if a citizen cannot question the law, in all its aspects, then what is the point of law?

As the old Chinese curse goes - may you live in interesting times! And we do ...

The UK Supreme Court–FMQs 16th June 2011 - Holyrood

Given the highly biased press and media reports of these exchanges at FMQs yesterday (16th June 2011) these complete clips offer an opportunity for a more balanced appraisal of the full exchanges. Holyrood FMQs offers a curious spectacle these days, that of two caretaker opposition leaders and one brand new opposition leader representing two failed parties and one dying party (Labour) attempting to hold a First Minister with a new and powerfully enhanced mandate to account.

POSTSCRIPT
I'm glad the Scotsman has recently followed my practice of actually timing question and answers at FMQs, instead of simply making unsupported and usually inaccurate statements that the First Minister was hogging the floor.
The paper selectively offers a couple of times today: let me help them out with the total Supreme Court exchanges -


Annabel Goldie 2m 19s
Iain Gray: 3m 57s
Willie Rennie: 1m 38s
Alex Salmond 10m 30s

Total question times: 7m 54s, total answer times: 10m 30s

Percentages of total of UK Supreme Court exchanges:

Questions 42.93%, Answers 57.07%

The UK Supreme Court and the Scottish legal system

Fancy a wee dance at the Palais des Droits de l’Hommes?

No, it’s not a dance hall for right-handed men, it’s the location of the Cour Européenne des Droits de l'Homme - the Court of Human Rights in Strasbourg.

When the furore over the UK Supreme Court’s role in relation to Scottish Law and the Scotland’s legal system started, my heart sank. I feel obliged to comment, because the issue is a fundamental one, and relates to the bigger independence argument.

But I am not a lawyer, and have no legal training. Such expertise as I have is managerial, industrial and commercial and my professional training relates to human resources, with a specialist expertise in negotiation. My claim to a right to comment on a different kind of HR - not human resources, but human rights, is the right and duty of a citizen and a voter to form a view, to act on it, and where possible to promote it.

What follows is my understanding of things. I fully expect to be challenged and corrected on inaccuracies, and will welcome anything the extends this vital debate on the integrity of Scots law.

THE BACKGROUND

The legal system in Scotland is unique, and totally distinct from English law, which also applies to Wales. Celtic in origin up till the time of the Normans and the Angles, it began to change in the early 12th century under Dabíd mac Maíl Choluim - King David the 1st, King of the Scots, king of Alba. It began to change further in the 15th century, and principles of Roman law increasingly influenced civil law and canon law. It is a mixed legal system. The Act of Union did not affect the integrity of Scots law, with the law remaining completely distinct from that of England and Wales, but from 1707, Scotland, England and Wales shared a common legislature through the UK Parliament.

The differences from the law of England and Wales and Northern Ireland law are highly significant in criminal law, property, inheritance, trusts, the law of evidence and family law. There a fundamental differences in the age of legal capacity (16 in Scotland versus 18 in England), the size of juries (15 versus 12) and the verdict is determined by simple majority, not by unanimity as in England. There can be no hung jury, as in England. A Scottish jury has a choice of three verdicts (as opposed to two in England) - guilty, acquittal or not proven.

(Civil cases have a jury of 12, with a minimum of 10 required as a quorum, and a jury can be hung if tied after a minimum of three hours consideration.)

In the areas of tax and commercial law, there are strong similarities.

Since the Treaty of Rome, Scots law has been affected by European law and the European Convention on Human Rights. Devolution, under the Scotland Act of 1998 also gave the Scottish Government limited capacity to legislate in specific areas.

FUNDAMENTAL PRINCIPLES

The Act of Union of 1707 was entered into voluntarily (leaving aside historical questions on exactly how ‘voluntary’ a process accompanied by major division, intimidation and bribery could be)  by Scotland.

When the Scottish people decide to end that union, it will be ended - there is no question of permission being granted by Westminster, and that fact is generally accepted in Scotland and in the United Kingdom.

There is no capacity by the UK government to alter or amend the Scottish legal system and Scots law - only Scotland and Scots can do that.

Membership of the European Union is voluntary, and under the Union, it is the nation state of the UK that is a member. (An independent Scotland would also seek membership of the EU.)

Members states of the EU can leave at any time if they decide to do so, and that decision would be determined by  a referendum.

Scotland was neither able to opt in to the EU, nor could it opt out independently of a UK-wide referendum.

As things stand, the UK government could call a referendum at any time and take the UK - and Scotland - out of the European Union, even if a majority of Scots wanted to stay. Conversely, the UK could vote to stay in the EU even if a majority of Scots voted to come out. (This is analogous to the situation at the 2010 general election, where Scotland effectively voted for a Labour Government, but wound up with a Tory/LibDem coalition governing them.)

CADDER and FRASER CASES - THE UK SUPREME COURT JUDGEMENTS

The UK Supreme Court was established by the Constitutional Reform Act of 2005 and commenced operations in 2009.

Here is how it describes its functions on its website -

The Supreme Court is the final court of appeal in the UK for civil cases. It hears appeals in criminal cases from England, Wales and Northern Ireland. It hears cases of the greatest public or constitutional importance affecting the whole population.

This appears to be crystal clear - it hears appeals in civil cases across the UK, but in criminal cases, only in England and Wales.

The UK Supreme Court is the court of last resort and highest appellate court in the United Kingdom, but - and this is critical to the debate - the High Court of Justiciary remains the supreme court for criminal cases in Scotland.

But a problem has reared its head …

Because of parliamentary sovereignty in the UK, the court has only limited powers of judicial review. It therefore cannot overturn primary legislation made by Parliament, but it can overturn secondary legislation, e.g. if that legislation is found to be ultra vires of the powers in primary legislation allowing it to be made.

And under the Human Rights Act 1998 (section four), the court can make a declaration of incompatibility which means that it believes that the legislation subject to the declaration is incompatible with one of the rights of the European Convention on Human Rights. Such a declaration can apply equally to primary and secondary legislation. The legislation itself cannot overturned by such a declaration, but it ceases to have effect. Powers under section 10 of the act are allow ministers to amend the legislation by statutory instrument to remove the incompatibility.

On December 10, 1948 the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights. This gave global recognition to the fact that there every human being had certain inalienable rights that transcended the actions and the laws of individual sovereign countries.

The General Assembly of the United Nations proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations  ----- to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

This is given legal force in the European Community by the European Convention on Human Rights and by  the Court of Human Rights in Strasbourg.

The problem, now causing such such heat and light, but little illumination in the media, is caused by the fact that this legislation has permitted appeals to the UK Supreme Court in criminal cases, where it is not the court of last resort under Scottish Law, on the basis that a criminal judgement infringed human rights.

In October last year (2010) Peter Cadder appealed against his conviction by a Scottish Court on the basis that under Scots law, the police were allowed to question him without him having had access to a lawyer. In any other country in the European Community covered by the European Convention on Human Rights, such an appeal would have gone to Strasbourg, but in the UK it went to the UK Supreme Court, who overturned the conviction, stating that police could no longer questions witnesses without a lawyer being present. Moreover the decision was retroactive, affecting a large number of previous judgment under Scottish Law.

Effectively, the law of Scotland had been overturned in a large number of Scottish judgements in criminal cases, in spite of the fact that this was not supposed to be within the remit of the UK Supreme Court.

On Wednesday of last week, the UK Supreme Court overturned the criminal conviction of Nat Fraser for the murder of his wife, on the basis that the withholding of certain facts was an infringement of his human rights, and that the jury was likely to have reached a different verdict had they known these facts.

THE DEBATE

The debate triggered by these two controversial judgements is one of principle, not on the rights or wrongs of the specific cases, although to listen to media comment, and to some legal comment, one would think it was merely a question of expediency rather than principle.

Is the debate political? Of course it is, on both sides of the argument.

The law is created by political action by communities, but is meant to stand outside of politics., which it never entirely succeeds in doing, except as an ideal. Scotland is in a unique situation, in that it has its own ancient legal system, but is not a sovereign state, although nothing in the act of union that created the sovereign state of the UK can challenge the independence of the Scottish legal system. Or so Scots thought, till Cadder and Fraser and the UK Supreme Court called that into question …

THE ARGUMENTS SUPPORTING THE ROLE OF THE UK SUPREME COURT

As I understand them, the arguments in support of the UK Supreme Court’s role in relation to Scots law may be summarised as follows -

1. Since human rights appeals in criminal cases are inevitable, and would have to go to Strasbourg anyway under the European Convention on human rights, the UK Supreme Court offers a quicker route to resolution, with the advantage that British judges based in the UK would decide on the merits of the cases rather than foreigners.

2. Since no legal system is perfect, and the Cadder and Fraser cases have called into question aspects of Scottish justice, the UK Supreme Court is “doing us a favour in Scotland by dealing with human rates cases fast and efficiently …” (Mike Dailly, Govan Law Centre).

3. The Brigadoon Bubble suggests that Scotland has a perfect legal system - in reality, no legal system is perfect.

4. Lord Hope is a Scottish judge and has special knowledge of Scots Law and Scottish affairs, and is therefore well-equipped to advise and guide his fellow judges on Scottish human rights appeals.

5. No Scottish judges sit in the European Court of Justice in Strasbourg. Strasbourg is overburdened and takes years to deal with cases.

6. Alex Salmond and the SNP government are guilty of Anglophobia and simply want to bypass London and to cultivate a sense of grievance against the UK that will serve their aim of independence in a referendum.

The arguments against the role of the UK Supreme Court in Scottish criminal cases where a human rights claim has been lodged are as follow -

1. The idea of a court with a majority of judges from England determining human right in Scotland is ludicrous.

2. The European Convention on Human Rights was written by a Scot, David Maxwell-Fyfe.

3. Lord Reid is a Scottish lawyer who serves as a Strasbourg judge.

4. If a specific bench is required to consider human rights legislation as it applies in Scotland and to speed up cases, one can be set up in Scotland.

5. The Strasbourg Court  covers 40 jurisdictions in Europe. The case for a Strasbourg back stop on human rights - implementing a convention written by a Scot - is to put Scotland in exactly the same position as any other European country.

6. The distinction between the Strasbourg Court and the UK Supreme Court is that Strasbourg doesn’t strike down Scottish convictions and open cell doors - it cannot quash convictions or order the release of prisoners, and it gives a proper examination to the checks and balances within the Scottish judicial system before it reaches its conclusions.

7. We are in this unacceptable situation vis a vis the UK Supreme Court because of totally unforeseen consequences of the Scotland Act, which may turn the Scottish criminal law system on its head if something is not done.

8. If the application of Scottish law and Scottish judicial procedures under human rights law needs to be looked at critically, we must do that in Scotland, with a free debate in over our criminal justice system, not because a court with a majority of English judges says so, over-ruling seven High Court judges in Scotland.

CONCLUSION

Those arguing in favour of the UK Supreme Court continuing to behave in this way on human rights cases in Scotland appear to fall into the following categories -

Unionists who want Scotland to be as subservient to the UK as possible, especially  in the lead-up to the independence referendum in the second half of this Holyrood Parliament.

The usual suspects in the media, who want to portray the SNP Government of Scotland, re-elected with a decisive majority by the people of Scotland, as anti-English, emotional and rabble-rousing, all the thing that the SNP is emphatically not, but their unionist media critics are, with the difference that their Scottish shills are effectively anti Scottish …

(In this context, Paul McBride, QC a prominent Scottish defence lawyer and a prominent Tory commented on Newsnight that the media criticism of the First Minister, Alex Salmond “bordered on the hysterical …” I would add to that perceptive and objective remark, from someone who is not an SNP supporter, that hysterical criticism has characterised the unionist media comment since they wakened up to reality on May 6th 2011, and realised that the independence of Scotland was infinitely more likely than it has been at any time since 1707.)

Defence lawyers who are happy to see as many alternative courts of appeal as can be found to challenge the judgment of the courts. This includes a range of defence lawyers, from those who might well deserve the appellation given to them by Kenny MacAskill (which I won’t repeat!) to highly responsible lawyers like Mike Dailly of Govan Law Centre,  a crusading lawyer on behalf of the less privileged in our Scottish society, a man whose motives are beyond question.

But it is worth mentioning that a prominent Scottish defence lawyer like Paul McBride, QC says that Alex Salmond “is actually right in law”. Paul McBride sees the central fact as being that you can get to the UK Supreme court by bypassing the Scottish courts, but you can’t do that in England, which he sees as unacceptable.

WHERE DO I STAND?

I am not an ‘Anglophobe’ - nor is anyone in the SNP - but I do profoundly distrust the UK Government and the UK Establishment when their very existence is threatened by Scotland’s legal and legitimate aspirations to be independent, and I distrust the British Establishment’s profound and insidious influence over the legal system in the UK.

I have recently listened again to Tom Paulin’s play, All the Way to the Empire Room, in the 1994 BBC broadcast, which dramatises the negotiations in the 1920s on Ireland’s independence between the Irish negotiating team and Lloyd George and Winston Churchill. The outcome of those negotiations, unscrupulously manipulated by the UK, with a mixture of brutal threats of extreme violence and blandishments (similar to 1707 in Scotland) led to the partition of Ireland, the Irish Civil War and the death of Michael Kelly, the Irish military leader. Only now is Northern Ireland coming out of the long, dark night that resulted from that betrayal.

I stand squarely with the Scottish Government, with Alex Salmond and Kenny MacAskill and the ancient Scottish legal system against the incursions of the UK Supreme Court.

Get your hands off Scots Law, UK Supreme Court!