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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