A Legal Farce 56
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 Those states no longer exist, having been replaced by the United Kingdom”…(two hours later) “Nothing turns on the peculiarity.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 why Nicola 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 Scottish 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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