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| Craig Murray |
A LEGAL FARCE:
Lord Advocate Dorothy Bain‘s submission to Supreme Court
(by Craig Murray 11 Oct 2022)
Sir James Eadie, acting for the Westminster government, closed the day at the Supreme Court with a vicious twist of the knife: “If you can’t even persuade your own law officer, the shutters come down”.
Eadie is well suited to knife twisting, a figure of smooth menace whose polish is undercut by the odd hint of the Estuary in his accent. He had spoken for an hour, after a full day of abysmal performance by Lord Advocate Dorothy Bain. She told the court proudly she is a minister in the Scottish Government.
In an excruciating three hour ramble, delivered with all the concentration of an 18 month old toddling around Hamley’s, the only points of clarity from Bain were the following, which stood out like nuggets of bacon in a lentil soup of obfuscation:
1) “I could not clear the bill as appended. I do not have the necessary confidence that the bill is within the competence of the Scottish parliament”
2) “A referendum on a matter which is ultra vires, is also ultra vires”
3) “It is a peculiarity that the Scotland Act refers to the Union of the Kingdoms of Scotland and England. Those states no longer exist, having been replaced by the United Kingdom”…(two hours later) “Nothing turns on the peculiarity. The union is a full political and economic union between what were two previously independent countries.”
4) “There is clearly a cogent argument that the Scottish Parliament does not have the competence to pass this bill”.
You have not misread. Those are all quotes from Dorothy Bain. A minister in Sturgeon’s government.
Unionists on social media could not believe their luck. Was this really the Scottish Government’s case? I give you one of the more publishable ones:
Yes, Greig, she certainly did say that. Twice.
This is no surprise however, as Bain had very specifically endorsed that view in her written arguments before the Court, as I explained in my analysis of them:
Eadie’s dry observation that the Scottish government could not convince its own law officer of its case, struck home because it was a withering understatement. Bain could not have made clearer her Unionist credentials if she had come into court sporting an orange sash and with a brooch in the form of Ian Paisley.
Bain said she had given arguments both for and against the Scottish parliament having the power to hold an advisory referendum. But she said that by contrast she was unequivocal that it was this, Westminster’s Supreme Court, with one Scottish judge on the panel of five, that had the power to decide the issue.
Her main argument that the Scottish parliament could have the power to hold a referendum was that the proposed referendum was non self-executing, and its legal effect was nil. It was not for the court to anticipate any political consequences that might arise from what was in effect just a large opinion poll that the Westminster parliament would be legally entitled to ignore.
Yes, that really was her argument, particularly about Westminster having no obligation to accept the result. She said the referendum proposal respected the “protection of the integrity of the UK parliament”.
She went on further about the material difference between a vote for a thing to happen, and the thing happening itself. In this context she referenced at huge length cases about cigarette advertising in Scotland and hypothecated NHS spending for pulmonary disease in Wales. We were far now from Scottish Independence, a situation with which Bain was much more comfortable, and she accordingly meandered for two hours in this beguiling pasture, looking down every rabbit hole.
At this stage, even those of us who believe we have known for some years the reason whyNicola Sturgeon would appoint a unionist Lord Advocate determined to scuttle the good ship Independence, were puzzled about why Sturgeon would appoint a Lord Advocate incapable of finishing one single sentence without looking down at her notes, with a deep frown of puzzlement as to their content.
Bain early came under an interesting line of questioning from Court President Lord Reed and from Lady Rose. Did the Lord Advocate really have to certify the legislation as competent? The Scotland Act only indicated that the responsible minister must do so in good faith. They were not obliged to take the Lord Advocate’s advice. Bain relied for this on the Ministerial Code, but that did not have legal force.
Bain replied that a Minister could take a contrary view, but it would have to be reasonable and argued. It would be most unusual – the Law Officers’ (ie Bain’s) role was to give the Scottish Government advice on the law.
This was fascinating to me because there were obvious assumptions underlying these exchanges that did not have to be stated between lawyers.
The first unasked question was that the minister could simply go out and get their own legal advice rather than take Bain’s – there are hundreds of lawyers in Scotland willing to argue that a referendum is within the powers of the Scottish government, indeed Bain had referred to them. The minister could publish that advice and fulfil the “good faith” and “reasoned argument” criteria.
The second underlying question left hanging was why on Earth the Scottish Government had appointed a minister in Bain unwilling to back its flagship policy, and why she wasn’t resigning to make way for somebody who would.
Both these questions were not able to be asked by Lord Reed and Lady Rose because they are political matters not for the Supreme Court – but they hung thick over this phase of the discussion.
When James Eadie came to reply on behalf of Westminster’s Advocate General, he was by contrast a model of brevity and common sense. The Court could not possibly rule, said Eadie, on a matter which was hypothetical, theoretical, abstract and inchoate. Personally, I prefer to eschew sesquipedalianism (that is a joke), but it came over well from Eadie.
Who knows, Eadie opined, what final form the legislation might take, or even if it would be passed at all? Where were the accompanying memoranda and costings? What amendments might be passed? The court could not rule on a mere idea of a bill.
Interestingly, Eadie was given a much harder time by the judges than Bain. They seem far keener on Scotland’s democratic right to hold a referendum than Bain is. They suggested the draft bill was pretty clear and short and unlikely to change substantially. They asked how in Eadie’s view the Scottish Government could go ahead in circumstances when the Lord Advocate could not certify. That is what drew from Eadie his closing barb:
“If you can’t even persuade your own law officer, the shutters come down”.
Eadie will continue his argument tomorrow.
Lord Reed, who has a gentle manner, had opened proceedings by explaining that the Supreme Court was the court of the whole United Kingdom, included Scottish judges, and took Scottish cases under Scottish law. He added that a decision would take “months” in view of the mountain of paperwork involved.
Reed is however the only Scottish judge on this panel of five, with two English, one Welsh and one Northern Irish. This is very much the UK Establishment deciding on Scotland’s future. Reed himself is a Tory appointment as President and widely viewed as a Tory.
I confess I was fascinated by Reed’s accent. He has taken the title Lord Reed of Allermuir – that is the hill I look at from my study here; I can walk out the back and be on its slopes in less than ten minutes. He has lived nearly all his life in Scotland. Yet there is no trace at all of Scot in his accent, not even the refined tones of Morningside or The Grange. He was privately educated in Edinburgh then Edinburgh University, but the accent really is remarkable. It is beyond posh Scot. I have no explanation.
On a much more profound matter, I do not believe Dorothy Bain referred one single time to Scotland’s right of self-determination in international law, or indeed to the international law context at all. Nor did she reference the SNP’s written intervention in the case on precisely those points.
This is to double down on an omission that to any practitioner, legal or diplomatic, in the field of sovereignty, secession, decolonisation or newly Independent states, will find beyond astonishing. It simply misses out the fundamental argument. Remember, Dorothy Bain is speaking here, not as an individual but as a minister in the Scottish Government.
That the Scottish Government does not believe in the right to self-determination of the Scottish people – but the governing party the SNP, which has intervened separately to assert it, does so believe – is a situation of astonishing farce. It is, frankly, the perfect illustration of the blind alley into which devolutionist political careerism has shunted the entire future of the Scottish nation.
My reading of today is that the judges of the UK Supreme Court are sympathetic to the democratic argument for an outlet for the will of the Scottishj people, but that Dorothy Bain has – not by accident, and in collusion with Sturgeon – presented so poor an argument as to make that decision virtually impossible for the court.
I don’t think James Eadie can believe his luck.
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The legal right of secession of states, outside of a situation of “classic” colonial occupation, has developed enormously in the last thirty odd years. South Sudan, Montenegro, East Timor, Eritrea, North Macedonia, Czech Republic, Slovakia, Georgia, Bosnia and Herzegovina, Slovenia, Croatia, Azerbaijan, Turkmenistan, Moldova, Tajikistan, Uzbekistan, Kyrgyzstan, Armenia, Kazakhstan, Lithuania, Latvia, Estonia and Ukraine are all amongst the new states recognised by the United Nations since 1991.
All of those involved secession from a larger entity. The notion that the right to self determination relates purely to the freeing of non-Europeans from European colonial rule plainly could not survive this onslaught of real world emergence to freedom by European and Eurasian nations. The international law jurisprudence has moved to acknowledge this, most notably summarised in the advisory opinion on Kosovo by the International Court of Justice.
23 nations born of secession in 31 years, all recognised by the UN, makes it plain there is a legal process in routine operation here. That Scotland wishes to become the 24th is not in any sense novel and unusual. Its right to do so is plainly established in international law. That is the basis on which the Government of Scotland should have been approaching the UK Supreme Court (if it approached it at all).
Yet we have had the astonishing spectacle of the Lord Advocate, Dorothy Bain, ostensibly arguing for Scotland’s right to hold an independence referendum, yet never once in a two day hearing asserting the right to self determination of the Scottish people under Article 1 (2) of the UN Charter.
I cannot get through to you how astonishing that is. Let me put it this way. If the Scottish Government do not believe that the Scots are a people with the right of self-determination under the UN Charter, they have no right to apply to the UN for statehood anyway, whatever the referendum result. So why not assert that right now, in the argument for the referendum?
Astonishingly, Bain did not even mention it in court, once. She did mention it in her written submissions, where she stated that Scotland’s right to self-determination has no legal effect in UK law. She also, as I reported yesterday, did find time to argue before the Supreme Court that the mention of “the union of the Kingdoms of Scotland and England” in the Scotland Act was “a peculiarity”, as the Kingdom of Scotland has no legal existence since 1707.
Bain’s supposed argument that the Scottish government has a right to hold an independence referendum rests instead not on the right of the people of Scotland to decide their own future – which Bain has made plain she does not accept – but solely on this argument:
The Scottish parliament, Bain accepts, is constrained by the Scotland Act from legislation which relates to “the Union.” But as a referendum on Independence would only be advisory, it does not “relate to” the Union.
Which, frankly, is bollocks. Even the most ardent supporter of Scottish Independence cannot really believe in this argument. It is embarrassing to be making it.
The argument that Bain should have been making is this:
1) The Westminster Parliament has no authority to make law which constrains the right of self-determination of the Scottish people
2) Yes, the Scotland Act does, quite deliberately, stop the Scottish parliament holding an independence referendum. Of course the UK will try to stop Scotland leaving. But it has no right to do so.
3) Compliance with UK law is not necessary for Scotland to achieve Independence.
That would be precisely in accordance with this statement of international law:
5.5 Consistent with this general approach, international law has not treated the legality of
the act of secession under the internal law of the predecessor State as determining the effect
of that act on the international plane. In most cases of secession, of course, the predecessor
State‟s law will not have been complied with: that is true almost as a matter of definition.5.6 Nor is compliance with the law of the predecessor State a condition for the declaration
of independence to be recognised by third States, if other conditions for recognition are
fulfilled. The conditions do not include compliance with the internal legal requirements of
the predecessor State. Otherwise the international legality of a secession would be
predetermined by the very system of internal law called in question by the circumstances in
which the secession is occurring.5.7 For the same reason, the constitutional authority of the seceding entity to proclaim
independence within the predecessor State is not determinative as a matter of international
law. In most if not all cases, provincial or regional authorities will lack the constitutional
authority to secede. The act of secession is not thereby excluded. Moreover, representative
institutions may legitimately act, and seek to reflect the views of their constituents, beyond
the scope of already conferred power.
That statement of international law is the UK government’s submission to the International Court of Justice in the Kosovo referral.
Read it across to the Scottish postion. Of course the Scotland Act tries to preclude Scottish Independence. As the UK government stated in the Kosovo case: “In most cases of secession, of course, the predecessor State’s law will not have been complied with: that is true almost as a matter of definition.”
Defying UK law will not affect Scottish recognition by the international community: as the UK government stated in the Kosovo case “Nor is compliance with the law of the predecessor State a condition for the declaration of independence to be recognised by third States, if other conditions for recognition are fulfilled. The conditions do not include compliance with the internal legal requirements of the predecessor State.”
The Scottish Parliament has the right to call a referendum or to declare Independence as it wishes in reflecting the will of the Scottish people. As the UK government argued in the Kosovo case: “In most if not all cases, provincial or regional authorities will lack the constitutional authority to secede. The act of secession is not thereby excluded. Moreover, representative institutions may legitimately act, and seek to reflect the views of their constituents, beyond the scope of already conferred power.”
If Bain were a half decent lawyer, and any kind of decent Scot, she would have been going at the Supreme Court with The British government’s own words and arguing for Scotland’s right. Instead I have a pile of notes of today’s proceedings so mind-numbingly dull and inconsequential I am not going to bother you with her drivel or that of James Eadie for the UK government.
They conducted a ritual dance across the pinheads of various clauses of the Scotland Act and its schedules, to no useful effect whatsoever.
The Supreme Court will decide that yes, it does have the authority to answer this reference, which it will say was properly made (the judges didn’t like Eadie’s bullying of Bain on this point) and no, the Scottish Parliament does not have competence to pass the draft referendum bill. You will get this decision in late January.
It was an irrelevance. Scotland should of course not be acknowledging any authority of this London court in the first instance.
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