MIA RISES TO THE CHALLENGE

“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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