In late November, a judge in the High Court of England and Wales will hear a judicial review into the legality of the proscription of Palestine Action.

That court has no jurisdiction in either Scotland or Northern Ireland and does not take into account the law of either place, which is different to English Law.

Yet the proscription of Palestine Action applies to the whole UK and the result of the English judicial review will apply to the whole UK – which is a direct violation of Scottish legal rights.

My attempts to raise this point in London have been met with a haughty colonial arrogance, which amounts to “so what”?

Two grounds have been granted for the judicial review in English and Welsh law. Firstly the judge will consider whether the effect of proscription is contrary to the rights of free assembly and free speech protected by the European Convention on Human Rights Articles 10 and 11.

The ECHR applies UK-wide and the arguments will be the same were the case heard in London, Edinburgh or Belfast. An English or a Scottish judge may come to a different conclusion, not only for reasons of individual judgment, but because of the way the basis of law is considered differently in the two jurisdictions.

But the English judge will also consider whether due process was followed in the proscription according to English and Welsh public law. The argument is whether or not Palestine Action ought to have been consulted, or others likely to be affected by the proscription ought to have been consulted – in a situation where the views of Israel and of weapons manufacturers were in fact consulted.

Now, that common law is entirely different in Scotland to England and Wales. In fact the Scottish legal system has a very different tradition to the English system, and the Scots system is not really based on common law, though precedent is cited.

While the English and Welsh legal system is grounded in common law, relying heavily on judicial precedent and case law, the Scottish legal system is rooted in Roman law principles, emphasizing codified statutes and a civilian tradition that distinguishes it from common-law jurisdictions.

I should pause to exonerate the Welsh. When the English conquered, raped and colonised Wales, they simply destroyed its existing administrative and legal systems and imposed their own. Therefore when I speak of “English and Welsh law” I am merely reflecting the current jurisdictional reach.

An important point has to be grasped, which requires a dropping of the colonial mindset.

It is perfectly possible that the banning of Palestine Action might be found lawful in English and even EU law, but is still unlawful in Scotland under Scots law.

I should emphasise that this argument applies not only to Palestine Action but to every English High Court judicial review of a Westminster government action.

You may be surprised to hear the point is probably non-controversial amongst lawyers.

Given five minutes to think about it, I am not sure any Scots lawyer would say it is untrue that UK-wide government action might be lawful in England but not in Scotland. But such is the Establishment cringe of pretty well the entire Scottish legal profession, I cannot think of an example of it ever being tested.

One fundamental difference between English and Scots law has a firm statutory basis – which is that between the English Bill of Rights and the Scottish Claim of Right.

Here the key distinction – and this is a hoary old truism – is between the English tradition of parliamentary sovereignty and the Scottish tradition of popular sovereignty. Scots law contains protections against oppressive executive acts, whether or not imposed by parliament, in a way which English law does not.

For those that may doubt that what I am saying is established law, here is an extract from an article by retired European Court of Justice judge Professor Sir David Edward in the Supreme Court Yearbook Volume 6, entitled “Scotland’s Magna Carta. The Claim of Right and the Common Law” (not available online):

It follows that that which is lawful cannot be arbitrary or irrational – a principle already present in the Wednesbury criteria and developed in more
detail from EU administrative law (derived from German law) insisting on the objective justification and proportionality of executive action.¹⁰ For recent examples of how this idea is being given effect, see in particular the Judgments of the Supreme Court in R v Gul11 and Beghal v DPP12 which illustrate the evils of over-broad discretionary powers, as well as the importance of not relying on answers given under compulsion.

The reference in the Claim of Right to the Estates as `a full and free representative of the Nation’, whether or not it reflects the constitutional philosophy of George Buchanan, cannot surely be interpreted as a demand for `sovereign’ Parliamentary power, still less the power of the Parliamentary majority for the time being. It is, rather, an assertion that ultimate power rests with the `Nation’…

That the Westminster parliament cannot just impose on Scotland any law it wishes was spelt out explicitly by Lord Cooper in his 1953 judgment in MacCormick vs Lord Advocate:

The principle of the unlimited sovereignty of Parliament is a distinctly English principle which has no counterpart in Scottish constitutional law…

Now, I am fully aware that the bulk of the Claim of Right represents the establishment of anti-Catholicism in the state. But that does not obviate its useful provisions. Of which the most (but not only) relevant one is this:

That the causing pursue and forfeit persons upon stretches of old and obsolete laws, upon frivolous and weak pretences, upon lame and defective probation, as particularly the late Earl of Argyll, is contrary to law.

The Claim of Right is still the law of Scotland (and is not the law of England). It was not revoked by the “Union” of 1707 and indeed here it is on the UK government’s definitive website of currently active legislation.

Now, there could not be a starker example of “causing pursue and forfeit persons… upon frivolous and weak pretences” than claiming Palestine Action, a non-violent protest and civil-disobedience organisation, is a terrorist outfit.

Even more absurd is to claim that those decent people who have been pursued by the executive all over Scotland for opposing genocide, are supporters of terrorism.

There is the clearest case that the proscription of Palestine Action and subsequent repression are precisely the kind of executive persecution and injustice which are outlawed in Scotland by the Claim of Right – and are outlawed irrespective of parliamentary authority.

It is precisely an arbitrary and irrational executive act, which cannot be lawful in Scotland, whatever the views of the Westminster parliament. Nor can the Westminster parliament invoke the alien doctrine of parliamentary sovereignty in Scotland, to impose arbitrary and irrational executive action under the rubric of “reserved powers”.

Palestine Action may yet succeed in their judicial review in England. But a separate judicial review must be launched in Scotland that both challenges this extreme Zionist act in support of genocide – directly contrary to overwhelming public opinion in Scotland – and asserts the continued existence of Scotland’s popular and communitarian legal tradition.

———————————

My reporting and advocacy work has no source of finance at all other than your contributions to keep us going. We get nothing from any state nor any billionaire.

Anybody is welcome to republish and reuse, including in translation.

Because some people wish an alternative to PayPal, I have set up new methods of payment including a Patreon account and a Substack account if you wish to subscribe that way. The content will be the same as you get on this blog. Substack has the advantage of overcoming social media suppression by emailing you direct every time I post. You can if you wish subscribe free to Substack and use the email notifications as a trigger to come for this blog and read the articles for free. I am determined to maintain free access for those who cannot afford a subscription.

Click HERE TO DONATE if you do not see the Donate button above

Subscriptions to keep this blog going are gratefully received.

Choose subscription amount from dropdown box:

PayPal address for one-off donations: [email protected]

Alternatively by bank transfer or standing order:

Account name
MURRAY CJ
Account number 3 2 1 5 0 9 6 2
Sort code 6 0 – 4 0 – 0 5
IBAN GB98NWBK60400532150962
BIC NWBKGB2L
Bank address NatWest, PO Box 414, 38 Strand, London, WC2H 5JB

Bitcoin: bc1q3sdm60rshynxtvfnkhhqjn83vk3e3nyw78cjx9
Ethereum/ERC-20: 0x764a6054783e86C321Cb8208442477d24834861a