There is a fundamental flaw in the SNP’s Supreme Court submission on the independence referendum. As an argument that the people of Scotland have the right of self-determination and that this right is inalienable, the intervention works well. The problem lies in the fact that two different understandings of the right of self-determination are presented, reflecting the two different purposes of the Scottish Government’s referendum proposal.
For the purpose of persuading the court of the lawfulness of the proposal, the right of self-determination consists solely in the opportunity to express a preference as to the constitutional status of the nation and the form of government considered best suited to the needs, priorities and aspirations of the people.
For the purpose of persuading the people of Scotland that our right of self-determination is being honoured, that right is quite correctly described as a kind of meta-right from which flow all other democratic rights.
The court is told that the proposed referendum is no more than a test of public opinion. That it can have no effect and that it therefore cannot impinge on any reserved matter.
The people of Scotland are told that the proposed referendum is our opportunity to decide. That it is our chance to make a choice.
The SNP’s intervention slips and slithers greasily between these two concepts throughout. The crucial question of execution is never addressed other than to explicitly exclude execution from the concept of self-determination provided for the court’s consumption. The ideas of expressing and exercising this inalienable right are confused and conflated as a matter of expediency. The proposed referendum is explicitly stated to be non-self-executing. Furthermore, it is stated at various points that execution is not a matter for the people of Scotland alone but that it requires the consent and cooperation of the British state. This directly contradicts the concept of self-determination, derived from international law, which holds that,
The right to self-determination of a people is exercised by that people and that people alone.
I maintain that the demands of democracy are not satisfied by a procedure in which the people express a preference. I maintain that the demands of democracy require absolutely that the procedure be an expression of the people’s will. I further maintain that the will of the people thus expressed is determinative. It cannot be otherwise given that there is no political authority above the people and that all legitimate political authority derives from the people. The exercise by a people of their right of self-determination must be self-executing or it is not the exercise of that right. It is the other thing the ineffectual expression of a preference which may or may not be realised depending on the amenability of some agency other than the people alone.
The SNP’s arguments regarding the internationally recognised concept of self-determination are powerful. Its arguments regarding the applicability of that concept to the people of Scotland and prevailing circumstances are unanswerable. But the intervention as whole lacks the courage of the conviction which the best of it expresses. The intervention constantly retreats from the necessary conclusions of its own arguments. These arguments cannot be discounted or disregarded or contradicted by the UK Supreme Court without flouting principles of democracy firmly established in international laws and conventions. But the court is offered a way out by going along with the idea that the people being permitted a chance to express a preference is enough.
It is not enough for me.
The legal maxim ubi jus ibi remedium is generally translated as meaning where there is a right, there is a remedy. The SNPs intervention establishes the right but in order to make the Scottish Government’s proposals less unpalatable to the English doctrine of parliamentary sovereignty, it forsakes the remedy.
I demand both the right and the remedy as without the latter the former is no more than a cosmetic device intended to give the appearance of democracy.
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24 thoughts on “Where is the remedy?”
Reblogged this on Ramblings of a now 60+ Female.
“28 June 2022
This afternoon (Tuesday 28 June), the Supreme Court of the United Kingdom (UKSC) received a reference by the Lord Advocate under paragraph 34 of Schedule 6 to the Scotland Act 1998 under the Supreme Court’s devolution jurisdiction. ”
Anything that is NOT about the reference by the LA under p34 schedule 6 to the Scotland Act, could be, and perhaps has to be, chucked out by the UKSC.
The SNP intervention was allowed (subject to the general acceptance of the referral), precisely because it “slips and slithers greasily” around the defined purpose of the LA’s intervention.
It can not, therefore, go too far, or it will be inadmissable.
“It can not, therefore, go too far, or it will be inadmissable.”
FFS, we shouldn’t even be in this fcking position a Scottish Lord Advocate who is supposedly too unsure of herself on this, that she has to ask a court in a foreign country if it’s okay to proceed, are you fckin kidding me.
We’re being played big time, and anyone who cannot see this is thick as mince.
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You need to stop getting your news from Unionist media, it’s totally distorted your view of reality, as it has done others. You should also pay more attention to someone who has a clue about constitutional legalities, rather than seeing things only through their own anti-SNP and anti-Sturgeon agenda driven eyes. Start here young grasshopper:
Spoken like a true believer that we need permission from a foreign country to leave this rancid union.
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Oh dear, your reply is a poor attempt at an insult, rather than any sensible attempt at an informed reply. Is that all you’ve got?
It’s not an insult but an observation, not to worry though there are many more like you who believe we need Westminster’s permission to leave this union. When the reality of the matter is that we’ll need to break Westminster rules to exit this union.
The legalities of exiting this union reside at Holyrood nowhere else.
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“though there are many more like you who believe we need Westminster’s permission to leave this union”
Nothing in my comments leads to that erroneous conclusion.
Elegantly expressed , Peter .
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“… The exercise by a people of their right of self-determination must be self-executing or it is not the exercise of that right. It is the other thing the ineffectual expression of a preference which may or may not be realised depending on the amenability of some agency other than the people alone… ”
Precisely, Peter. Which is why domestic law, as contained in the Scotland Act, is totally ineffectual. It is now in international law that we have to seek a resolution. By refusing to scrutinise the Treaty itself, and the CoR with it, as being the documents that actually underpin Scotland’s agreement to the Union and place in it, by refusing to even contemplate a solution that lies outside domestic law and politics, the SNP is going nowhere with this. Domestic law, as far as Scotland potential independence is concerned is, and always was, a cul de sac.
There is a deep-rooted refusal in Scotland to look at the Treaty and CoR from a Scottish perspective: just what did those Scottish commissioners and jurists design and what did the Scottish MPs sign up to once the Treaty had been designed? Did Scotland enter the Union as a cowed, submissive slave nation or did that nation expect, even among the Unionists, that a bargain had been struck and that Scotland’s interests had been protected – at least to a great degree? I think so; I have always thought so.
Which now poses the question: when did England, the other nation party to this Treaty come to believe or pretend to believe (I think the latter here is also the truth) that it, and it alone, had autonomy and freedom of action in this Union when its parliament had also been dissolved according to the Treaty terms? This was done very quickly, when the legal jurisdiction of the Inner House of the Court of Session, Scotland’s supreme civil court and court of last appeal, was removed from Scotland to Westminster Hall, to the House of Lords, and, latterly, to the Supreme Court (albeit, the Supreme Court will normally remit a case back to the Court of Session once it had made its ruling).
If the interpretation of the Treaty is as I, and many others, believe it to be, almost everything that England has done in its own interest – the passing of laws detrimental to Scotland, the removal of legal powers from Scotland, interference in Scotland’s education system, the establishment of the Scotland Act and Holyrood, and all that has flowed from those actions – has been ultra vires and, therefore, illegal in international law. Scotland had no need of a devolved administration because Scotland is, and always was, in precisely the same position as England, and nothing could or should have been done that did not have the express agreement of Scotland in parallel with its rights under the Treaty and CoR.
If England is not a devolved nation, Scotland, unilaterally, cannot be either, and England as the UK had no right to introduce devolution without also introducing it in England, for example. The dereliction of their duty to protect their people and their interests, by successive Scottish administrations, by acquiescing in unlawful impositions upon Scotland by its neighbour, is a legal and political outrage. For any SNP administration to acquiesce now in a Supreme Court decision to ‘disallow’ a binding and executive referendum or any other means by which Scotland might free itself of the Union, its case based on consistent breaching of the Treaty terms, the removal of Scottish resources and assets without reciprocal advantage to Scotland, is a dereliction of duty too far. This scrabbling after constitutional crumbs is an utter disgrace, and all the money wasted on stupid domestic court cases could have been better spent in making a proper study of the Treaty and taking our case to the international courts years ago.
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Yeah, I read a bit of the SNP’s submission, and then I thought what’s the point of reading this, when overall the words mean nothing because even if the UKSC gives the indyref a greenlight the actual indyref is nothing more than an exercise is duping the Scottish public because it’s a mock indyref with no recourse to independence.
It should be called out across the land that this is one big exercise by Sturgeon on duping the indy masses. In reality this is just time wasting by Sturgeon, its pure theatre on her behalf, for our benefit. Y’know what happens, if the UKSC says yes and we hold it and yes romps home, what then, what shit excuse will Sturgeon give those who haven’t quite cottoned on yet that it’s a mock indyref, this is why I think the UKSC will give it the thumbs down approach, Sturgeon can say I tried, but Westminster and the nasty UKSC said no, so vote for my party (SNP) in your droves at the next GE, as a plebiscitary election, and we’ll have our indyref.
We’re being played big time on this one, and it all started when the new Lord Advocate Bain, followed her orders whilst at the cabinet table of sending the decision of competency to a court set up in 2009 by Gordon Brown to bypass the House of Lords, instead of being bold and courageous and pushing ahead with it. She didn’t do the latter because that’s not part of the plan. Independence was never part of the plan under Sturgeon as FM.
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For a somewhat more informed view of the Lord Advocate:
and the reply
No worries 🙂
For a somewhat more informed view of the Lord Advocate:
and the reply
No worries 🙂
Forget the Scotland Act, again as I’ve replied to you above if we want to exit this union, we’ll need to defy Westminster, once we have an FM who isn’t treacherous and also has a spine and seeks to dissolve this union.
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There’s a hearing in the UKSC on 11th and 12th October.
There’s a few different possibilites for the result, and therefore several alternative routes to follow afterwards, including Indy Ref 2 on 23rd October 2023.
Your comment about the FM is not shared by many outside echo chambers such as this, in fact there seems to be no movement within the SNP to replace her, nor from her fellow MSPs in Holyrood. No motion before the conference, nobody seeking to stand against her, facing the embarrassment of an overwhelming defeat.
Oh, you mean the mock indyref, that Sturgeon has agreed to, there’s no movement to replace Sturgeon simply because when it comes to SNP MPs and MSPs, self-interests supercedes the welfare of the country.
No motion to stand against her that’s a belter, I’ll tell you what, go on over to Iain Lawson blog, Yours For Scotland, infact here it is below, and you’ll see why no one will challenge the Empress of the SNP.
A hell of a lot of indy supporters need to wake up and see that Sturgeon is playing us for fools.
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Most people by far have a different view of Indy Ref 2.
As for that blog, that’s another anti-SNP anti-Sturgeon echo chamber – same people commenting there, as here and Wings, including yourself.
There is a place for you which most indy activists can’t fill – being able to emphasise with other Sturgeon and SNP haters who you might convert to a YES vote.
I well remember your posts on WOS sometimes they were informative and rebellious , then you told Stu to fu++ off because he was exposing sturgeon for the betrayer that she is and went off in a huff with others to paypal pauls tories are bad site , you mention convincing and persuading no voters and undecided voters to convert , I have asked MANY sturgeon sycophants and apologists to please supply links or documentation to ANYTHING sturgeon or the wider snp has done or produced to educate or inform no voters or undecideds to CONVERT to yes , I issue the same challenge to you
I am NOT being facetious show us the work in progress , she claims a ref in Oct 23 it is almost Oct 22 where is all the information and preparation that the voters can access to make their minds up
YOU know she PROMISED a rebuttal unit years ago to counteract the daily lies of the MSM
YOU know she PROMISED a national energy company where is it
YOU know she PROMISED ferries , take a look at the bbc disclosure programme
How you or anyone else can defend the incompetence and corruption of this utter clownshow is disgusting , TBQH I had respect for you and believed you had principles and intelligence , i’m sorry people like you and others on WGD are part of the problem why we are NOT independent
And BTW when you are attempting to collect all the information to educate and convert the masses you cannot include ANYTHING by Zarkwan or individual indy supporters only the FM and her hierarchy
It wasn’t me that told him to “fu++ off”, it is his blog, but I do remember who it was. What I actually posted on Wings was when he was going on and on about GRA, and I posted something like:
“Wake me up when you get back to Indy”.
He blocked me so I couldn’t post there any more even if I’d wanted to. I used another ID later, criticised his unbalanced opinion poll – and that ID got blocked too. He’s not the only one who blocks people who disagree with him or criticise him, a fragile ego that doesn’t like dissent. Bell doesn’t block people – he might be a mirror-obsessed egomaniac but it’s not fragile.
As for the rest, sorry, can’t help you, I’ve no fascination with Sturgeon either, only Independence, so not remotely interested in delving into and wasting time on what Stugeon has or hasn’t done in the past, only what is or may be, to come – like the UKSC case.
I could say the same as I did for Wings about other blogs which bore on and on about Sturgeon, like an unhealthy obsession:
“Wake me up when you get back to Indy”.
And finally, why this obsession with what I might think about Sturgeon (or any subject) even if I could be bothered? I’m just a punter that posts below the line, about WHAT I want, and WHEN I want, and even IF I want. I don’t belong to any party or any group, I’m a truly independent poster. Just as Lawson was on the Herald during the first Indy Ref (he was a very good and effective poster in those halcyon days), having gone from being an SNP councillor to an Independent.
My thoughts are all my own.
Mmm, as for WGD I’m not popular there either 🙂
I tend to ignore your puerile rants these days. This illustrates why. The extent to which you have abandoned reason in favour of blind faith is evidenced by the fact that you can only ‘think’ in terms of hate. You could have scored the point you so pathetically crave to score simply by answering the question ─ where is the remedy? But you can’t.
I don’t have any blind faith. I do however read and think, unlike you, who mostly only reads and thinks about his own tortured point of view. Though I have noticed that after a painfully long period of time you can adapt a little, so you haven’t completely withered at the vine of “thinker” or indeed “listener”. Keep listening young grasshopper, and you may learn even more.
As for any “remedy” to, well, virtually anything basically, the UKSC hearing is on 11th and 12th October and I think it’s televised, will be reported, so we’ll all have more of a clue then. Like some experts I think there is a fair chance that the hearing will find for the legislative competence of Holyrood within the defined parameters, I’d put the odds at about an optimistic 50-50.
But for or against, there are also other findings that can be made, and it means the possible outcomes are multiple and combinative, so for instance if there are 6 things that can be found for or against alongside the main one, there are dozens maybe even hundreds of possible total combinations. The “remedy” depends on what they all are, and their implications.
I’m not sure that the SNP “intervention” adds anything further to what has already been laid out by the First Minister.
It says ‘can we have a wee bit of democracy, please sir’ rather than ‘I demand my nation’s full democratic rights’.