My laptop was stolen from me on the Vienna to Frankfurt train on Saturday.

I had been working on a blog article on the train. Approaching Frankfurt I packed up ready to get off, and went to the loo. When I returned the laptop had vanished from the laptop bag. The charger was still there and so was about 500 euros in cash.

I am on a speaking tour around Germany for the campaign to free Julian Assange. Yes, I am thinking the same as you about who would want a battered and dirty six year old laptop with a cracked case and very little retail value, and not the money.

That laptop had literally been all round the world with me and I think for six years had never left my side except when I was in jail.

My life was on it. Have spent 24 hours cancelling everything and now have to spend a week recovering anything.

It was a monster 17 inch screen because of my awful eyesight and a replacement of the same capacity will probably weigh about a quarter of the kilos. But I feel the absence of the weight on my shoulder like the loss of a limb.

For a while look out for fake communications of any kind from me. This is not one!

I live in the capital of my country. I had to travel hundreds of miles to the capital of a foreign country to hear a bunch of unionist judges, the majority from a foreign country, declare that my country has no right to existence, indeed my country only exists at all in so far as it was incorporated by a foreign parliament in the Scotland Act of 1998.

It was cold and wet, walking to the Supremes Court his morning from Albert Embankment. Londoners were hurrying to their jobs with heads bowed, collars up and gloved hands clutching umbrellas against a driving rain. It was mundane. There was no sense of excitement and no indication anything in particular was happening at the Supreme Court. Arriving at 9am there was no queue, and I was the third person into the courtroom.

The former Middlesex Crown Court is one of the heaviest and most plodding examples of Victorian Gothic architecture in existence. It looks like a set from a 1930s Errol Flynn film of Robin Hood. Courtroom Number One of what is now the Supreme Court has a mock medieval vaulted ceiling, designed to echo that of the ancient Westminster Hall across the square (which is one of the architectural marvels of the world). But the Victorian version fails to soar like the medieval one. It is massive and clumpy and the bosses are like vast excretions of pointless wood. Rather than marvel at its lightness, we fear it will fall on our head.

In Westminster Hall, a pain-racked William Wallace stood his trial before a foreign authority he did not acknowledge, but which insisted it ruled him and had the right to condemn him to death. That same foreign authority was about to come down on our heads again. 700 years later not much has changed; the venue had just shifted three hundred metres.

Inherent in the judgment of the Supreme Court is the proposition, incredibly advanced by Scotland’s Lord Advocate, that Scotland effectively ceased to exist as a nation in 1707 and the Scottish legal principle of the sovereignty of the people was completely replaced by the English legal principle of the sovereignty of the Crown in parliament. Thus Scotland has no authority, power or recourse, in any situation, beyond what is handed down to it by Westminster.

That is in no sense an exaggeration. It is what the ruling is.

It is fair to say – and I published this at the time, long before the judgment – that Scotland’s unionist Lord Advocate got precisely the result her entire presentation of the case was designed to achieve. She did not turn up in court, doubtless having been sent the judgment in advance and perhaps not wishing to be seen to smirk in public.

The Court itself was extraordinarily subdued on an occasion that will be written into every history of the Scottish nation. The public gallery was not crowded, and mostly filled by law students with zero interest in the outcome wither way, turning up as part of some assignment. There were a few gloating members of the state and corporate media. I was there with an old friend from Sinn Fein.

A few of the very best of Scotland’s MPs turned up – Angus Brendan McNeill, Douglas Chapman, Tommy Sheppard, Neale Hanvey, John McNally and Anne McLaughlin (apologies to any I missed). There was a remarkably high correlation between MPs who bothered to turn up to the case, and MP’s willing to be seen to be friends of Craig Murray in public, which I think is not coincidental. Or to put in another way, there was no sign of the troughers who don’t care about Independence beyond the effectiveness of the slogan in getting them elected.

I shall do a proper analysis of the judgment later. It was notable that Reed – whose Scottish accent had once again become almost entirely imperceptible – addressed the international law aspects of the case which had been wrongly and totally omitted by Lord Advocate Bain, but submitted separately on behalf of the SNP. Reed relied heavily on the completely outdated Quebec judgment of the Federal Court in Canada – which is of course apposite because it is a parallel instance of the colonial authority denying democracy. He also very selectively misrepresented the Kosovo Opinion of the ICJ.

So Reed ended up in a situation where this was quite literally the argument of the court.

Scotland is not a colony, Scotland has meaningful access to the political process. No, Scotland certainly does not have the right to hold a referendum.

That he cannot see the glaring contradiction in this is a sign of the effectiveness of Unionist blinkers.

This outcome is precisely what Nicola Sturgeon and her Lord Advocate aimed for. She can now claim she tried to hold an Independence referendum and was blocked, when she plainly never had the slightest intention of holding the referendum in the first place.

We now come to what is known in Scottish politics as “Plan B” – a plebiscite election, which she announced would follow if a referendum is blocked.

A plebiscite election on Independence can only mean an election which, if won by the SNP, will be a mandate to declare Independence. Plebiscite is virtually a synonym of referendum. A “plebiscite election” cannot be an election which will lead simply to a renewed request for permission from Westminster to hold a referendum. A “plebiscite election” is the referendum.

I am pretty confident we will see Surgeon again squirm towards the off ramp and simply try to turn the “plebiscite election” into a demand that we re-elect the do-nothing troughers for a further five years with a new “mandate”. I do believe this ploy is now wearing thin.

We now know Westminster will not grant Independence; we have to take it. We have to take it whatever UK law or the London Supreme Court says. We have to assert the Sovereignty of the Scottish People as an authority that stands, in Scotland, ineffably higher than any parliament in a foreign land.

Independence must be declared in Scotland by Scotland’s people, preferably through Scotland’s government.

Any politician who still argues we must be constrained by Westminster law and bow our heads to London diktats is a unionist. Please see that.

(Correction – I typed Tommy Sheridan for Tommy Sheppard. Both excellent men. Now corrected).

————————————————-

Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.

Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.

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

Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.

Here is the detailed argument we submitted to the European Court of Human Rights in Strasbourg:

IN THE EUROPEAN COURT OF HUMAN RIGHTS:

CRAIG MURRAY
Applicant
v
THE UNITED KINGDOM
Respondent Government

SUPPLEMENTARY STATEMENT UNDER RULE 47(2)(b) OF THE RULES OF COURT

INTRODUCTION
1. This supplementary statement sets out the relevant domestic law and practice, and then makes supplementary submissions on why there have been violations of Articles 6 and 10 in this case.

2. The following abbreviations are used: (i) the Crown’s petition and complaint regarding the applicant (Additional Document No. 3) is referred to as “the contempt petition”; (ii) the High Court of Justiciary’s Opinion of 25 March 2021 (Additional Document No. 13) is referred to as “the High Court’s Opinion”; (iii) the applicant’s petition to the nobile officium (Additional Document No. 20) is referred to as “the nobile officium petition”; the High Court of Justiciary, Appeal Court’s Opinion dated 25 March 2022 (Additional Document No. 25) is referred to as “the Appeal Court’s Opinion”.

I. FACTS: RELEVANT DOMESTIC LAW AND PRACTICE
a. The Contempt of Court Act 1981

3. The Contempt of Court Act 1981 is a UK-wide statute. Section 11 gives the courts the power to prohibit the publication of information that has been withheld from the public in court proceedings. It provides:
“Publication of matters exempted from disclosure in court
In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld.”

4. Section 11 is an ancillary power. The ordinary rule is that court proceedings and documents are public. The courts, however, have various powers, particularly at common law, to withhold names or other matters from the public. When a court orders that a name or other matter should be withheld from the public, it may make a section 11 order so that its order withholding the information is effective (that is, would not be circumvented by the press reporting the information that has been withheld): A v BBC [2014] UKSC 25 per Lord Reed at paragraph 59. Section 15 provides that, in Scotland, the maximum penalties that may be imposed for contempt of court shall be 2 years’ imprisonment or a fine or both.

b. The nobile officium

5. The nobile officium is an extraordinary, equitable power vested in, inter alia, the High Court of Justiciary. It gives the High Court of Justiciary the power to provide a remedy in circumstances where no other remedy or procedure is provided by the law: see Beggs v. the United Kingdom, no. 25133/06, § 178, 6 November 2012; and Mackay and BBC Scotland v the United Kingdom, no. 10734/05, § 15, 7 December 2010. A petition to the nobile officium is, in practice, the standard route of appeal for a person who seeks to challenge a finding of contempt made by a High Court bench of 3 judges: Express Newspapers, Petitioners 1999 JC 176 at 180; Murray v HM Advocate [2022] HCJAC 5. In that sense, while the jurisdiction is described generally as an equitable one, it is, in the context of contempt proceedings in the High Court of Justiciary, a standard domestic remedy. The nobile officium procedure is invoked by presenting a petition for its exercise to the High Court of Justiciary.

c. The Prisoners and Criminal Proceedings (Scotland) Act 1993

6. The Prisoners and Criminal Proceedings (Scotland) Act 1993 regulates the early release of prisoners in Scotland. Section 1(1) provides that a short-term prisoner (defined in section 27 as a person serving a sentence of imprisonment of less than 4 years) must be released as soon as he has served one-half of his sentence. Section 3AA(1) and (2) further provides that the Scottish Ministers may release on licence, among others, any short-term prisoner who is serving a sentence of imprisonment for a term of 3 months or more, after that prisoner has served a quarter of his sentence. Generally, when prisoners are released under section 3AA they are made subject to home detention curfew (or ‘tag’), requiring them to remain at their home address for a specific period each day. However, section 5 of the Act provides that section 3AA does not apply to, among others, those serving a sentence of imprisonment for contempt of court. Thus, while a prisoner serving an 8 month sentence of imprisonment, in relation to a criminal conviction, will generally be released on licence after 2 months’ imprisonment (and will be released unconditionally after 4 months), the earliest a prisoner serving the same sentence for contempt of court can be released is after 4 months.

II. STATEMENT OF VIOLATION OF ARTICLE 6
a. The applicability of the criminal limb of Article 6

7. It is settled in domestic law that the criminal limb of Article 6 applies to contempt of court and thus that the respondent in a contempt case enjoys the protections of Article 6 § 3: In re Yaxley-Lennon [2018] EWCA Crim 1856, [2018] 1 WLR 5400 per Lord Burnett CJ at § 66; Robertson and Gough v HM Advocate 2008 JC 146 per the Lord Justice Clerk (Gill) at §§ 41, 64 and 65; Re K (Children) (Contact: Committal Order) [2003] 1 FLR 277, [2002] EWCA Civ 1559 per Hale LJ (as she then was) at § 21.
8. This is compatible with the Court’s own approach that the criminal limb of Article 6 applies to contempt of court when, applying the third of the Engel criteria, there is a risk of a custodial sentence: Gestur Jónsson And Ragnar Halldór Hall v Iceland [GC], § 83, nos. 68273/14 68271/14, 22 December 2020. That applies a fortiori to cases where, as here, a custodial sentence is in fact imposed: Kyprianou v. Cyprus, no. 73797/01, § 31, 27 January 2004, where the criminal limb of Article 6 was found to apply, when the applicant was sentenced to 5 days’ imprisonment. For these reasons, it is submitted that it is uncontroversial that the criminal limb of Article 6 applied in the present case and the Court is respectfully invited to find that it does.

b. The applicable standards in relation to the applicant’s Art. 6 claim

9. The nub of the applicant’s Article 6 complaint is stated in the application form: in finding him in contempt of court for his article of 18 March 2020, the High Court of Justiciary went beyond the terms of the Crown’s petition and, in effect, convicted him of something that he was not charged with.

10. The general principles that apply in such a situation are clear:
(i) The particulars of the offence or the indictment against an accused play a crucial role in the criminal process, in that it is from the moment of their service that the suspect is formally put on written notice of the factual and legal basis of the charges against him: Pélissier and Sassi v France [GC], no. 25444/94, § 51, 25 March 1999; Kamasinski v. Austria, no. 9783/82, § 79, 19 December 1989.
(ii) Information concerning the charges made, including the legal characterisation that the court might adopt in the matter, must either be given before the trial in the bill of indictment or at least in the course of the trial by other means such as formal or implicit extension of the charges. Mere reference to the abstract possibility that a court might arrive at a different conclusion from the prosecution as regards the qualification of an offence is clearly not sufficient (I.H. and Others v. Austria, no. 42780/98, § 34, 20 April 2006).
(iii) Sub-paragraphs (a) and (b) of Article 6 § 3 are connected in that the right to be informed of the nature and the cause of the accusation must be considered in the light of the accused’s right to prepare his defence (Pélissier and Sassi, cited above, § 54; Dallos v. Hungary, no. 29082/95, § 47, 1 March 2001).

11. These are principles that the United Kingdom courts have recognised must apply in contempt of court proceedings. In Yaxley-Lennon, cited above, the Lord Chief Justice (Lord Burnett) observed (at paragraph 29):
“Procedural fairness has always been a requirement in contempt proceedings, including the need to particularise the alleged contempt at the outset. An alleged contemnor must know what it is he has done which is said to amount to a contempt of court so that he can decide whether to accept responsibility or contest the allegation. Whilst that is a common law requirement, it chimes with article 6.3 of the Convention for the Protection of Human Rights and Fundamental Freedoms…”
His Lordship went on to observe at §66:
“In contempt proceedings, touching as they do on the liberty of the subject, there is a need for the contempt in question to be identified with precision and the conduct of the alleged contemnor identified with sufficient particularity to enable him, with the assistance of legal advice, to respond to what is a criminal charge, in all but name.”

12. The same principle applies in Scottish contempt of court proceedings. As Lord Hope observed in Byrne v Ross 1992 SC 498, at 506:
“[I]t is necessary in the interests of fairness that the alleged contempt should be clearly and distinctly averred and that the proceedings for contempt be confined to the averments.”

13. The High Court of Justiciary recognised this, in terms, at § 62 of the High Court Opinion, where it rejected the Crown’s submission that articles published by the applicant before the section 11 order could amount to contempt, even though the Crown had not made that assertion in its contempt petition. The High Court of Justiciary quoted Lord Hope’s dictum in Byrne v Ross with approval and itself observed that:
“The petition is the basis upon which the Crown makes its assertions that the respondent has been guilty of contempt, and by which it provides notice to him of the way in which that contempt has been effected. The court, and more pertinently the respondent, is entitled to expect that the basis for the allegations of contempt will be set out clearly and specifically in the petition …”

14. It is submitted that these principles are correct and, as the Lord Chief Justice observed in Yaxley-Lennon, they chime with the requirements of Article 6 § 3. In Scottish contempt of court proceedings, the petition functions as the indictment does in a normal criminal process. Its averments set out what are, in effect, the “charges” against the alleged contemnor. As such, the petition has the same crucial role that an indictment does in that, at moment of its service, the alleged contemnor is formally put on written notice of the factual and legal basis of the charges against him or her (see Kamasinki,supra), and the court deciding on the question of contempt is limited to the allegations set out in the petition.

c. The Appeal Court’s approach to this issue

15. If the High Court of Justiciary had applied those principles, there could be no complaint under Article 6. However, what happened was that the High Court of Justiciary simply did not apply those principles to its examination of the 18 March 2020 article. Instead, it erred in finding that this article amounted to contempt of court by identifying Women A, B, F/J and H: High Court’s Opinion §80-84. That is so notwithstanding that the Crown in its contempt petition made no such allegations and only alleged that the article identified Woman D: contempt petition at §38. The consequence of that error is that the applicant has been convicted of something he was not charged with and, applying the clear and well-established principles set out at paragraph The general principles that apply in such a situation are clear: above, there has been a violation of Article 6 § 1 read in conjunction with Article 6 § 3 (a) and (b) of the Convention.

16. The Appeal Court deals with this aspect of the applicant’s case in §§71-73 of the Appeal Court Opinion. While superficially acknowledging the importance of fair notice at §71, the tenor of the Appeal Court’s decision is that the summary nature of the proceedings against the applicant justified an abridged approach to the issue of fair notice:
[71] The process of petition and complaint is intended to be a summary one, requiring a swift determination of the court. It is not one in which extensive written pleadings are desirable, since the process is not an adversarial one between the Crown and the alleged contemnor but a method by which the Crown can bring to the court’s attention instances of possible contempt.
…
[73] In the context of a summary process, in which the article was not found to be a contempt per se and, as the court explained in its opinion on permission to appeal, the court was not confined to the specific averment involving Ms D, it could look at the article as a whole and determine, as it did, that it did constitute a breach of the order when read along with the other articles.

17. The approach of the Appeal Court is misconceived. There is nothing within this Court’s jurisprudence to suggest that the requirement for charges to be carefully and clearly set out to an accused is curtailed by the fact that the proceedings take place in the context of a summary procedure. In the domestic criminal context, it is necessary for the charge to fully set out with sufficient notice the allegations that the accused requires to meet: Renton & Brown’s Criminal Procedure (6th ed) §8.01-8.02.1. It is an essential of any criminal verdict that its terms must be consistent with the charge as set out in the indictment or complaint: Renton & Brown’s Criminal Procedure (6th ed) §8-85. Indeed, as noted above, the case of Byrne v Ross 1992 SC 498 (which was referred to in favourable terms by the Appeal Court), is clear that in contempt proceedings “the proceedings for contempt must be confined to the averments”. To the extent that the Appeal Court relies upon the summary nature of the proceedings before it, such a reliance is entirely novel, unsupported by authority and inconsistent with the applicant’s right to fair notice in terms of Art. 6. (3) of the Convention.

18. The only other justification relied upon by the Appeal Court is a general averment in § 39 of the contempt petition, which states:
It is respectfully submitted that the details included in the Articles of 12, 16 and 18 March about the complainers could lead to their identification as witnesses in the criminal proceedings, contrary to the section 11 order imposed by the Court.

19. Such an averment is plainly insufficient to give notice to the applicant of his alleged contempt. At its best, the averment amounts to a warning of “the abstract possibility that a court might arrive at a different conclusion than the prosecution” as was described as insufficient in I.H. and Others v. Austria, no. 42780/98, 20 April 2006 at §34. More reasonably, it can be interpreted as a peroration in relation to the preceding paragraphs which ought to be seen as summing up the position already set out in §§ 33-38 of the contempt petition. In such circumstances, it is plainly devoid of any independent meaning and cannot amount to fair notice that the applicant could be found in contempt in relation to the 18 March 2020 article on a basis other than as set out in §38 of the contempt petition. The Appeal Court Opinion notes at §72 that “it is odd that the respondent did not make specific reference in the petition and complaint to A, B and F but the article as a whole was before the court”. It may or may not be odd but it is the approach which the Crown had taken in its pleadings. It is not the role of the court to fill in any perceived blanks in the contempt petition by, in effect, alleging (and then finding proved) further charges against the applicant. To do so would blur the necessary distinction between prosecutor and adjudicator.

20. By, in effect, convicting the applicant for something which he had not been charged with, the High Court of Justiciary’s finding is plainly contrary to Article 6 § 1 read in conjunction with Article 6 § 3 (a) and (b). The applicant invites the court to make such a finding.

III. STATEMENT OF VIOLATIONS OF ARTICLE 10

21. The applicant makes 2 complaints under Article 10: (i) that the finding of contempt was not prescribed by law because the test used by the High Court of Justiciary in deciding whether there would be a breach of s. 11 of the Contempt of Court Act 1981 was imprecise and unforeseeable and gave rise to arbitrariness; and (ii) that the restriction on the applicant’s freedom was not necessary and proportionate in a democratic society, for a number of reasons.

a. Interference with Art. 10 ECHR

22. As a preliminary issue, it should be uncontroversial that the applicant’s actions fell within the scope of Art. 10 of the Convention. This is implicitly acknowledged both in the High Court’s Opinion at §§ 48-53 and the Appeal Court’s Opinion at §70 and §76. Similarly, it ought not to be controversial that there has been an interference with the applicant’s Art. 10 rights; he was found in contempt of court as a result of articles he had published and was sentenced to an 8 month sentence of imprisonment. Such conduct plainly amounts to an interference with his right to freedom of expression.

b. Prescribed by law

23. The High Court Opinion at §58 found that, to breach a s. 11 order, it was not necessary that the material published would be likely to identify a complainer to the public at large; rather, it would be sufficient for a breach of a s. 11 order if the material published were likely to enable a “particular section of the public” to identify a complainer. This test was expressly upheld in §67 of the Appeal Court’s Opinion.

24. It is well established in this Court’s jurisprudence that for an interference to be “prescribed by law” it must be adequately accessible, sufficiently precise, and foreseeable (see, in the context of contempt proceedings, The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 49, Series A no. 30 and, as more recent, general authority, Satakunnan Markkinapörssi Oy And Satamedia Oy v. Finland [GC], no. 931/13, §§ 142-145, 27 June 2017). A norm must be formulated with sufficient precision to allow a citizen to regulate his own conduct. The purpose of the lawfulness test is to avoid all risk of arbitrariness: Medvedyev and others v France [GC]. No. 3394/03, 29 March 2010 at §80. The test of “a particular section of the public” is too imprecise and unforeseeable to meet the prescribed by law requirements of Article 10 § 2.
i. Lack of precision and lack of foreseeability

25. The phrase “a particular section of the public” is imprecise. A “particular section of the public” can be of any size or complexion. It need not be fixed or stable in membership. It need not be confined to any defined geographical area, nor to any defined social group, nor to any defined category, community or class of persons. It is thus impossible for any publisher to know what “particular section of the public” the court will have in mind when assessing whether published information will identify someone and thus place the publisher in contempt of court, with all the penal consequences that may have. The Appeal Court Opinion notes, with some irony, at §69 that “there is nothing difficult to understand in this”, without providing any assistance in interpretating what is plainly an imprecise test. Although it is not for this Court to interpret domestic law, it is noteworthy that none of the authorities discussed by the High Court of Justiciary at §56 of the High Court’s Opinion support the test being a “particular section of the public”. In each of those cases, the terms used were the “community” or “the local community”, not a particular section of the public: A Woman v Airdrie & Coatbridge Advertiser, IPSO Ruling, 9 May 2019 at §9.

26. The phrase “particular section of the public” is also unforeseeable. Without any further definition, a “particular section” of the public could be so small that it is no longer “the public” in any meaningful sense. There will always be someone who knows a complainer. For instance, when an accused is convicted of sexual offences against a series of ex-partners, particularly over a long period of time, the reporting of the case will often name the accused and report that he has been convicted of offences against his ex-partners. Many people may know the accused and his ex-partners, through social networks, work, and so on. On the High Court of Justiciary’s test, that information would be sufficient to allow people who know the accused to know, with a high degree of likelihood, who the complainers are. In those circumstances, no media organisation could report the barest details of the case without risking identifying a complainer to someone who might know her or the accused. That is too slender a basis to find a breach of a s. 11 order and thus to interfere with the freedom of expression that the media enjoys. It is also too broad a test to meet the foreseeability requirements of Article 10(2). Finally, this is a step too far from the necessary link that a s. 11 order must have to making effective any order to withhold information from “the public”.

27. Such an imprecise and unforeseeable test gives rise to 2 key concerns: (i) arbitrariness; and (ii) a chilling effect on reporting of matters in the public interest. The test promotes arbitrariness because its parameters are unclear. Contempt proceedings may be taken against some individuals and not others in relation to reporting on the same matters. That is because those who take the decision to initiate proceedings may have different understandings as to the scope of the test. It appears to the applicant that this arbitrariness has arisen in practice: Affidavit dated 25 August 2020, Additional Document No. 10, at §117-119.

28. The approach of the High Court is also conducive to create a chilling effect on the reporting of matters which are plainly in the public interest which relate to trials regarding sexual offences. Faced with an imprecise, ambiguous test in relation to contempt proceedings (and the prospect of a prison sentence if one falls on the wrong side of that test), it is natural for journalists to adopt a low-risk approach to reporting matters such as this and to, in effect, “under-report” to protect their own interests. In doing so, the approach of the High Court deprives the public of fearless reporting, which is necessary for the press to play its role as a public watchdog. This Court has previously warned against such a chilling effect: Cumpana and Mazare v. Romania [GC], no. 33348/95, § 114, ECHR 2004-XI. That chilling effect is likely to be all the greater on journalists in new media who: (i) might be thought to have a greater level of independence in their reporting, without the vested interests of large media companies; but (ii) do not have access to the same level of legal protection or advice as those in the traditional media.

ii. Jigsaw identification

29. The imprecision and lack of foreseeability of the High Court of Justiciary’s test become particularly acute in cases, like the present case, of “jigsaw identification” (that is, cases where someone is not directly named, but where the information published, when pieced together with other “pieces” of information, could lead to their identification). If the test is a “particular section of the public” rather than the public in general, it will be impossible for a publisher to know what the other pieces of the “jigsaw” might be and whether a particular section of the public has those pieces..

30. That is all the more so when the particular section of the public in question is a small one such as a complainer’s immediate personal or professional circle. The consequences of the test established by the High Court of Justiciary is that a publisher will breach a section 11 order if he or she publishes information that would not allow a member of the general public to identify the person, but would nevertheless suggest the person’s identity to people in her immediate circle or confirm that person’s identity to those who already know it. On that test, the publication of any new information allows a section of the public to identify a complainer —however small that section of the public is and however much other information that section of the public already holds — would be sufficient to establish a breach of a s. 11 order. That does not meet the foreseeability requirement of Article 10(2). The journalist in question also cannot be expected to know all of the other pieces of the jigsaw which may have been published in disparate articles across a variety of publications. To punish the journalist who inadvertently publishes the final piece of the puzzle is, again, to promote arbitrariness in the law.

31. For all these reasons, it is respectfully submitted that the test that the High Court of Justiciary applied in the applicant’s case does not meet the prescribed by law test in Article 10(2).

c. Necessity and proportionality

32. It is further submitted that the High Court’s approach is contrary to Art. 10, for the following additional reasons with regards to necessity and proportionality:

i. The failure of the domestic courts to balance competing interests in the application of the s. 11 order

34. The Alex Salmond trial and the alleged conspiracy on which the applicant reported were undoubtedly of great public significance and interest. It attracted unprecedented levels of domestic and international publicity. The trial, the Scottish Government’s handling of the allegations that came to be at the centre of it, and the manner in which the prosecution was brought and conducted were all matters of legitimate and considerable public concern. They have been the subject of an inquiry by the Scottish Parliament in which Mr Salmond, his successor as First Minister, Nicola Sturgeon, and the then Lord Advocate (the head of public prosecutions in Scotland), the Crown Agent (the executive head of the Crown Office and Procurator Fiscal Service) had to give evidence. The trial and its wider political context featured prominently as issues in the most recent Scottish Parliament elections, held in May 2021, for which Mr Salmond formed a new political party. The trial has had, and continues to have, ramifications for the Scottish National Party and for the Scottish independence movement. That remains so, thirty months after the end of the trial. Reporting on the trial, and on the details of Mr Salmond’s defence, was undoubtedly in the legitimate public interest.

33. The applicant does not dispute that protecting the privacy of individuals who claim to have been the victim of sexual assault also serves important legitimate interests. The High Court’s opinion at §50 quoted a passage from this Court’s inadmissibility decision in Brown v United Kingdom, No. 44223/98, of 2 July 2002, in which the Court “recognises that the relevant provisions of the [UK Sexual Offences (Amendment) Act 1976] are designed to protect alleged rape victims from being openly identified”; that “[t]his in turn encourages victims to report incidents of rape to the authorities, and to give evidence at trial without fear of undue publicity”; and that “[t]he Court considers that it must pay special regard to these factors when examining the proportionality of the restrictions at issue in the present case.” However, the High Court’s approach to this issue was incomplete. It failed to have regard to the passage in Brown immediately following, where the Court noted that “the prohibition under the Act against the identification of alleged rape victims is not absolute. In particular, section 4(3) requires trial judges to lift the prohibition in certain cases where the public interest so requires”; that a defence of unintentional disclosure was in place; and that the applicant had only been given a small fine.

34. By contrast, the High Court at §§51-53 accepted the submission of the Crown that “anonymity may be viewed as necessary in a democratic society” without apparent qualification, and apparently took the view that therefore any order imposing anonymity was always compatible with the Convention, as was enforcement of the order in all circumstances. Consequently, “[i]f the material in question is found by the court to breach the order, any specific circumstances, including the assertion that a breach was unintentional, may found [i.e., be raised] in respect of a decision as to any potential sanction, but not in our view otherwise”: High Court Opinion at § 53. Implicit is the suggestion that the public interest in reporting can never be relevant in relation to whether the s. 11 order has or has not been breached, or the test which ought to be applied in determining whether there has been a breach. The Appeal Court Opinion falls into the same error at §§ 27 and 28.

35. This refusal of the High Court to balance the competing legitimate interests in its application of the s. 11 order is incompatible with the Convention. The need to balance competing legitimate interests in freedom of expression cases is firmly established, especially in defamation cases and/or when the issue that is reported on is a matter of legitimate public interest: cf., e.g., Thorgeir Thorgeirson v Iceland, no. 13778/88, 25 June 1992, which concerned alleged police brutality. In such a context, it is not required that the reporter proves that the alleged public interest facts are true; it is sufficient that there are credible underlying facts to the story, and that the reporter acted with integrity and due diligence.

36. The answer to this issue does not lie in the fact that the court had already balanced the competing interests in making the s. 11 order, as suggested in the contempt petition and in the High Court’s Opinion at §17. The Appeal Court Opinion also relies on the applicant’s failure to attack the s. 11 order itself, to suggest that there was an acceptance that the order reached the correct balance in relation to the various interests: Appeal Court Opinion at §67. However, this court’s jurisprudence is clear that an interference with the right to freedom of expression that takes the form of a criminal conviction requires detailed judicial assessment of the relevant conduct and of whether sanction is necessary in the circumstances. It is not sufficient that the interference is imposed because its subject-matter falls within a particular category or is caught by a legal rule formulated in general terms; what is required is that it is necessary in the specific circumstances: Perinçek v Switzerland, no. 27510/08, 15 October 2015, at §275.

37. The High Court and Appeal Court fell into the same error as warned against in Perinçek. The s. 11 order was a rule formulated in general terms, addressed to the world at large. The domestic courts ought still to have considered whether a finding of contempt was justified in these specific circumstances, where: (i) there was no specific identification; (ii) jigsaw identification was only likely to identify to an imprecise, hazily defined, section of the public; (iii) and where there was a significant public interest in the reporting of the Salmond trial. Had it done so, it could not have failed to conclude that a finding of contempt was not necessary when balancing the various interests. That conclusion is further vouched for in the submissions below. The approach taken by the domestic courts is incompatible with the applicant’s Art. 10 rights.

ii. The test of “jigsaw identification” as applied in the applicant’s case breaches the substance of Article 10

38. The way in which the “jigsaw identification” was applied in the applicant’s case was not only unforeseeable, it also breached the substance of Article 10, in that it substantially curtailed the applicant’s ability to report on the salient details of Mr Salmond’s defence.

39. A review of the High Court Opinion is sufficient to indicate that even reporting of Mr Salmond’s defence at a relatively abstract level was sufficient, in the High Court’s Opinion to fall foul of the s. 11 order. In particular, the applicant was held to have breached the order by suggesting: (i) that a complainer CENSORED (that position not having actually been identified), §74; (ii) that a complainer was closely involved in CENSORED, §74; (iii) a complainer was CENSORED, §75; (iv) that a complainer had CENSORED, §77; (v) that a complainer CENSORED.

40. Of very significant relevance, the substance of Alex Salmond’s defence during his trial (and of the applicant’s reporting in relation to that trial) was not simply that the complainers had coordinated their accusations against Mr Salmond. It was relevant – and a matter of great public interest – that those individuals included high-ranking members of the Scottish Government and the SNP. In preventing the applicant from reporting even the relatively oblique details referred to above, the High Court rendered it effectively impossible to report on this matter in a manner which would be intelligible to the general public.

41. This was obliquely acknowledged by the High Court at §62 of the Appeal Court Opinion:
He states that in writing the Yes Minister Fan Fiction article it had been a challenge to work out how to tell the public of the identities without being in contempt. It was not a challenge, it was an impossibility, since doing so would be a breach of the plain terms of the order.

42. The Appeal Court’s paraphrasing is not an accurate representation of the applicant’s statement at §54 of his first affidavit: Additional Document No. 10. No reference is made to an intention to tell the public of the identities. Read in context, it is plain that the applicant was seeking to be careful to avoid being in contempt while revealing the alleged conspiracy. As apparently accepted by the Appeal Court, it was indeed impossible to report details of the alleged conspiracy and of the involvement of high-ranking members of the Scottish Government and the SNP without falling foul of the excessive application of the “jigsaw identification” doctrine by the domestic courts.

43. Accordingly, the s. 11 order, as excessively broadly applied in this case, violated the substance of Article 10.

iii. The granting of less protection to the applicant as a new media reporter than the courts granted to what they deemed to be “bona fide” mainstream journalists

44. The applicant accepts at the outset that journalists and others who exercise their freedom of expression have duties and responsibilities, and that they cannot be released from their duty to obey the ordinary criminal law on the basis that Article 10 affords them a cast-iron defence (Pentikäinen v. Finland [GC], no. 11882/10, § 91, 20 October 2015). Those duties and responsibilities apply equally to those using the internet to disseminate news and ideas, and the potential impact of the medium of the internet will be an important factor in considering those duties and responsibilities (see, for instance, Delfi AS v. Estonia [GC], no. 64569/09, §§ 133-134, 16 June 2015; Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, no. 22947/13, § 56, 2 February 2016).

45. But the corollary of that principle is that if journalists using the internet have the same responsibilities as those in the print or broadcast media, then they also have the same rights. That is now the clear and established case-law of this Court: see Delfi AS and Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt, both cited above; Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § 168, 8 November 2016; Ahmet Yildirum v. Turkey, no. 3111/10, §§ 49 and 50, 18 December 2012; Cengiz and Others v. Turkey, nos. 48226/10 and 14027/11, §§ 51-52, 1 December 2015). That case-law makes clear that just as internet bloggers and other popular users of social media have the same duties that the established press has, they also enjoy the same protections under Article 10. The protections afforded to the freedom of expression of journalists apply even in circumstances where the publication expresses “hard-hitting criticism”: Sürek v Turkey, nos 23927/94 and 24277/94, 8 July 1999, §61. Equally, expression is protected if it is made in a “polemical and even aggressive tone”: De Haes And Gijsels v Belgium, no. 19983/92, 24 February 1997, §48.

46. Notwithstanding this clear jurisprudence, the High Court of Justiciary held that the applicant was not entitled to the same protections as “mainstream” journalists (whatever that may mean in the contemporary media landscape): Statement of Reasons for Refusing Permission to Appeal to the Supreme Court, Additional Document No. 17 at §4. The Appeal Court Opinion adopts the same approach, noting at § 77:
The petitioner attempts to portray himself as a journalist “in new media”, thereby securing what may be thought to be the added protections afforded to the press where a contempt of court has occurred. This is unconvincing. A journalist is a person who writes for or edits a newspaper or periodical; whether in hard copy or on-line. The petitioner is not such a person, nor is he an NGO or campaign group. An individual does not become a journalist merely by publishing his or her thoughts on-line, whether by operating a website, running a blog or tweeting. If it were otherwise almost everyone would be a journalist. That is not the case.

47. The distinction drawn by the court between “bona fide journalists” and those such as the applicant who are “purporting to be journalists” is entirely inconsistent with international human rights standards. As the UN Special Rapporteur on Freedom of Expression and Opinion noted in their Report on Promotion and Protection of the Right to Freedom of Opinion and Expression (11 August 2010) at §65, those in new media, who lack the formal protections afforded to those in the mainstream press by their employers, require greater not lesser protection by the law:
As citizen journalists are by nature more isolated, they are more vulnerable to attack than professional journalists. However, citizen journalists enjoy less protection than their counterparts in traditional media, as they do not have the support of media organizations and networks, in particular the organizational resources, including lawyers and financial resources, which can help shield them from harassment.

48. The granting, by the domestic courts, of less protection under Article 10 than is accorded to mainstream journalists, is a further violation of Article 10.

iv. The diligence of the applicant’s research and his acting in good faith

49. Having taken a descriptive, rather than functional approach to the question of the applicant’s status as a journalist, the High Court did not consider it necessary to assess the nature or extent of the applicant’s journalistic work. Had it done so, it should have concluded that the works in question amounted to responsible journalism, carried out in good faith and on the basis of diligent research, which is subject to the protections afforded by the Convention. In particular:
(i) The applicant has in fact published a substantial body of so-called “traditional journalism” in the mainstream press (a representative sample of his journalistic work is produced as Additional Documents Nos 26 – 31);
(ii) The applicant gave unchallenged evidence in his affidavits (Additional Documents Nos 10 & 11) of the information which he had obtained relating to the circumstances leading to the Salmond trial and the reasons why he considered it to be in the public interest to publish that information. His research was clearly detailed. He sought to verify matters as between different witnesses and assessed their reliability in accordance with UK Foreign Office criteria. The court ought to give weight to the diligence with which the journalistic work was carried out, whether or not the court agrees with the conclusions reached by the applicant: Braun v Poland, no. 30162/10,4 November 2014 at § 40. On the basis of this research, the applicant’s articles cannot be said to be completely without foundation: Timpul Info-Magazin And Anghel v Moldova, no. 42864, 27 November 2007, §36;
(iii) The applicant had made attempts to verify much of his research during the contempt proceedings by seeking an order for the Crown to disclose copies of messages between various high-ranking officials in the SNP which spoke to the coordination of witnesses in relation to the Salmond trial and which he had seen or the content of which he had been told from reliable witnesses: Additional Document No. 6. That application for disclosure was refused by the High Court: Additional Document No. 8;
(iv) The applicant also gave unchallenged affidavit evidence that his intention was to make this information available in a manner which did not fall foul of the s. 11 order by identifying any complainers.

50. The applicant’s reporting of the trial was motivated by his genuinely held belief that the prosecution of Mr Salmond was unwarranted and by his awareness of the wider political context in which the trial took place. As this Court stated in Cumpana and Mazare, at paragraphs 113-114:
Investigative journalists are liable to be inhibited from reporting on matters of general public interest … if they run the risk… of being sentenced to imprisonment or to a prohibition on the exercise of their profession.
The chilling effect that the fear of such sanctions has on the exercise of journalistic freedom of expression is evident…”

51. Had the Appeal Court considered the functional test in relation to the applicant’s status as a journalist, it ought to have concluded that the applicant had carefully and in good faith obtained and presented information from a number of sources with regards to a matter of significant public interest. The applicant was, in other words, carrying out responsible journalism. Whether the court considered his conclusions to be true or not, such expression is worthy of protection. The applicant was denied that protection, in violation of Article 10.

v. The sentence of imprisonment was excessive

52. The protection that should have been accorded to the applicant includes the Court’s consistent protection against the imprisonment of journalists for press offences. The sentence imposed by the High Court of Justiciary – believed to be the first imprisonment of a British journalist for a press offence in modern history- is plainly wrong, as it appears to have been based on a distinction which finds no support in this Court’s case-law and is in fact contrary to it, as set out above.

53. There are additional reasons why the sentence is disproportionate. Where freedom of the press is at stake, the national authorities have only a limited margin of appreciation to decide whether there is a pressing social need to take measures against the media: Stoll v. Switzerland [GC], no. 69698/01, § 105, 10 December 2007. For that reason, such measures against the media call for particularly close scrutiny, and a measure imposed by the national courts will not be proportionate if there are other means of achieving the same end that would interfere less seriously with Article 10. That principle applies where the press or others publish confidential information in the course of reporting on criminal proceedings or other matters of public interest. In such cases, any decision to impose a fine instead of custodial sentence (and particularly a fine at a relatively modest level) is always a weighty factor in this Court’s finding that the sanction is proportionate: Bédat v. Switzerland [GC], no. 56925/08, 29 March 2016 at § 81; and Stoll, cited above, §§ 153-161. The Court’s case-law in fact goes further. It is now clear in that case-law that the imposition of a prison sentence for a press offence will be compatible with journalists’ freedom of expression as guaranteed by Article 10 of the Convention only in exceptional circumstances, notably where other fundamental rights have been seriously impaired, as, for example, in the cases of hate speech or incitement to violence: Cumpana and Mazare v. Romania [GC], no. 33348/95, § 115, ECHR 2004-XI.

54. A finding of contempt of court against a journalist – including a journalist working in the new media – is clearly a “press offence”, as the Court has used that term in Cumpana and Mazare et al. The High Court of Justiciary should therefore have only imposed a custodial sentence on the applicant in exceptional circumstances, notably if other fundamental rights had been seriously impaired. “Seriously impaired” is a high standard and the examples given in Cumpana and Mazare, of hate speech and incitement to violence, reinforce that. That high standard was not met in this case, notwithstanding the comments at §79 of the Appeal Court Opinion. Whatever its effect on the fundamental rights of the complainers in the Salmond trial, the applicant’s conduct does not reach the exceptionally high level contemplated by this Court before a sentence of imprisonment will be justified, still less the 8 months’ sentence imposed in his case. Responsible journalism, such as that carried out by the applicant (in which there was an avowed intention not to identify the complainers), cannot amount to conduct comparable to hate speech or incitement to violence. To the extent that the Appeal Court implies that it does, it has fallen into error.

55. There are 2 further markers of the disproportionality of the applicant’s sentence: (i) The first is that, as a consequence of the Scottish legislation on release of prisoners, the applicant had to serve more of his sentence than if he were an ordinary prisoner. Reference is made to the application of the Prisoners and Criminal Proceedings (Scotland) Act 1993 at §6 of this Supplementary Statement. In effect, he served a longer sentence as a journalist than a prisoner given the same sentence for an ordinary criminal offence. (ii) The second additional marker of the disproportionality of the sentence is that the applicant is in poor physical health. The medical report obtained in the course of the domestic proceedings from Professor Kopelman is included with this application. It sets out the applicant’s various medical conditions and that the applicant suffers from recurrent pulmonary hypertension, an ultimately fatal condition which gives rise to sudden losses of consciousness. He also suffers from bipolar disorder and depression. The effect of imprisonment on this particular applicant was thus greater than it would have been for another journalist in sound physical health.

CONCLUSIONS

56. For these reasons the applicant respectfully invites the Court: (i) To declare the application admissible; (ii) To find that there has been a violation of Article 6 § 1 read in conjunction with Article 6 § 3 (a) and (b) of the Convention; and (iii) To find that there has been a violation of Article 10 of the Convention.

We are shocked that the case has suddenly been dismissed by the Armenian judge at the European Court of Human Rights, sitting alone, essentially in a single sentence.2211101700 JUDGMENT from ECHR Registry (2) (1)

And that is the end of that. To say my legal team were stunned would be to put it mildly. Having perhaps seen more of the workings of international institutions from the inside, I was possibly a little less surprised. We had not been expecting anything to happen for probably a year, and had understood the Court had accepted the eligibility of the application. Those on the legal team with expertise in the ECHR wonder how this case came to be given to the Armenian judge – the court’s general practice is to hand cases to judges from a broadly similar legal milieu.

It appears the case never reached the stage of the Scottish authorities being required to respond. What is particularly worrying is the dismissal of the arguments at para 44 to 54 of our argument. It is now set in law that “journalists” are only those who work for the state and corporate media (there are resonances to the Assange case here), and that those in new media cannot expect the protection from long jail sentences.

The extremely wide definition of jigsaw identification as addressed in our argument at paras 38 to 43 is also now set in law.

While this road is now closed, the ramifications are so important that others are now taking up these issues, independently of me, and it is not the end of the affair. I shall let you know more when I can.

In the meantime, the unexpectedly sudden closure of the case has left me holding unexpectedly sudden legal bills. The difference between what we raised from the defence fund and the final total is about £47,000 (which may vary slightly as the last bill to come in is an estimate at present).

I shall forever be grateful to all those who contributed to the fight, and now that the fight is lost I realise it is much harder to expect people to help meet the costs of a failed cause. I also realise these are difficult times. But if anyone does feel able to help meet the final bills that would be hugely appreciated.

My work continues. I shall be heading down to London to cover the Supreme Court ruling on Scotland’s right to hold an Independence referendum, and then be off on a three week speaking tour of Germany, Austria and Slovenia, talking on the Assange case. If you subscribe to the blog you support both the articles and my activism.

DEFENCE FUND

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

Alternatively:

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

SUBSCRIPTIONS

Subscriptions to keep this blog going are gratefully received.

Choose subscription amount from dropdown box:

This is what I think of as a signpost article – it points you to something the mainstream media is deliberately not giving the prominence it needs, but I have no personal expertise or inside knowledge to give you. I am just giving you a start to get going. Several readers will have a much better understanding than I, and I encourage you to give your thoughts in comments below.

It is also worth noting that only the immediate improvement to freedom of speech on Twitter by Elon Musk has brought this to my attention. Several sources – particularly Citizens for Legitimate Government – have suddenly appeared in my feed again after being entirely suppressed.

My own tweets are, for now, less suppressed – my own family have been receiving notifications from me after they were stopped for over a year. I am not in general a fan of billionaires like Musk, and I do not know where Twitter will settle, but there is undoubted initial improvement.

The FTX story seems truly remarkable. From being founded only in 2017 it rose to be a “partner organisation” of the World Economic Forum and the second largest donor to Biden and the Democrat’s mid-term election campaign. It has now gone completely bust, taking every penny of its depositors money with it.

That is some trajectory.

The World Economic Forum has deleted its FTX page, but the Wayback machine has it:

I suppose it is inevitable that dodgy chancers would create derivatives markets for gambling on crypto, but I confess I had not given the matter much thought. It goes without saying that in those five years the founder of FTX had managed to take a huge personal fortune out of the company before it went bust.

FTX was a one man company belonging to Sam Bankman-Fried. The board consisted of him, an employee and the company lawyer. Over US$20 billion of investors’ funds from FTX were funneled to a fund management company, Alameda Research, also owned by Sam Bankman-Fried.

$37 million was donated by Bankman-Fried to the Democrats for the 2022 elections. Every penny of that originated with duped FTX investors. That is in addition to the $5 million given to the Biden 2020 campaign. FTX, of course, crashed instantly after those mid-term elections, which is interesting timing.

The BBC and the Guardian were constantly bombarding us with the term “democracy denier” in their coverage of the US elections, strangely not in reference to Hillary’s ludicrous claims that Russian interference was the cause of her loss in 2016.

I view as a joke any notion that the USA is a democracy. Democracy is about giving citizens a choice of political direction. The 2022 elections saw a simply incredible campaign spend of US$ 9.7 billion. Yes, nearly ten billion dollars. This is not democracy, it is a huge exercise in corporate control from which the ordinary citizen is frozen out.

Despite an aggressive tribalism which has stalemated the political system for decades, the difference in policy platform between Democrats and Republicans is highly marginal, with no alternative on offer to rampant and uninhibited commercial exploitation of the population by the super-wealthy.

The Democrats are marginally more keen on attacking other countries; the Republicans are marginally more against measures to curb carbon emissions. Vaunted differences on immigration and welfare turn out to be very small indeed, with very little changing when the White House does.

American elections are simply about the super rich funneling in vast donations, expecting to benefit when their team gets its nose in the trough, or often donating to both sides to benefit either way.

I am not sure what the connection to democracy is supposed to be.

One simple fact illustrates the true nature of the bribery fest. By far the majority of the funds channeled through Political Action Committees (PACs) are given to incumbents who face no serious threat to re-election anyway. The PAC’s are interested in bribing those in power, not changing those in power. They are simply lobby groups with an opportunity for legal bribery. To illustrate that, the largest donating PACs are:

National Assn of Realtors
National Beer Wholesalers Assn
American Israel Public Affairs Cmte
Credit Union National Assn
Blue Cross/Blue Shield
American Crystal Sugar

It is worth noting that Bankman-Fried donated ten times as much as the largest PAC donation. This brought access – he and his brother had meetings inside the White House on 7 March, 22 April and 12 May.

It is perhaps unsurprising therefore that FTX was involved in Ukraine, offering to exchange cryptocurrency for fiat and send it to Ukraine in an official partnership with the Ukrainian government. This from their press release

Aid For Ukraine is cooperating with the cryptocurrency exchange FTX which converts crypto funds received into fiat and sends the donations to the National Bank of Ukraine. This marks the first-ever instance of a cryptocurrency exchange directly cooperating with a public financial entity to provide a conduit for crypto donations. Earlier this month, FTX already converted $1 million worth of SOL and transferred it to the National Bank of Ukraine.

The collapse of the Bankman Fried scam was allegedly caused by hackers stealing what should have been a comparatively small portion of the assets of FTX, had they not been hived off elsewhere. Doubtless we will shortly hear from state salaried conspiracy theorists that this was Russia/Guccifer/an ISP address traced by Bellingcat to inside the Kremlin.

What we really have here is an Allen Stanford for 2022, with added political connections.

We would do well to heed the advice of crypto developer Nikolai Mushegian, who had as his Twitter profile: “Larpers who self-style as CEOs or CTOs or VCs are a bigger problem than the establishment. They can’t build anything and will sell you out in 2 seconds.”

His final tweet was posted on 28 October:

The next day he drowned in the sea off a beach in Puerto Rico, where he lived. He was fully clothed including a jacket. The police are not treating it as homicide so presumably their theory is suicide by wading out to sea.

States of course have a massive incentive to destroy non fiat currencies, or convert them into a new category of regulation. I am interested in the current discussion on smart state digital currencies where the state can track, control and block any transaction and know in real time exactly where each citizen or entity is spending or keeping every penny.

It occurs to me this is the wrong way round. The state belongs to its citizens, not the citizens to the state. We should be able to track online every single penny of public money in real time and see how it is spent. Imagine being able to follow every penny of the billions the Tories spent on fraudulent PPE contracts, for example.

The only people whose personal currency should be able to be tracked are those who hold, or have held, positions of power in the state. Their wealth and dealings should be available in great detail to public view. As for the rest of us, our money is ours and we are entitled to privacy.

————————————————-

Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.

Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.

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

Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.

The only thing more remarkable than the number of classified documents the Home Secretary leaks to her mentors, is the number of civil servants leaking to the newspapers about Braverman leaking the documents.

In her brief period(s) as Home Secretary, civil servants have separately leaked to the papers:
the fact of her emailing classified documents to backbench Tory MPs and others;
that Cabinet Secretary Simon Case was furious at her reappointment;
that civil servants were disquieted by her briefings of backbencher John Hayes inside the Home Office;
that Braverman ignored legal advice over responsibilities at the Manston detention centre;
that Braverman vetoed planned hotel bookings for Manston detainees because the hotels were in Tory areas.

Those are just the stories I happen to have picked up. I have never seen anything approaching this volume of civil service leaks against a minister. Clearly Braverman has completely lost the Home Office dressing room.

For decades, the position of Home Secretary has been used by both Labour and Conservative parties simply as a platform for winning votes through right wing populism. The last reforming Home Secretary in the UK was Roy Jenkins in 1976. Since then the only liberal tenure was the brief one of Kenneth Clarke. The rest have been a nightmare of slogans on fighting drugs, terror, crime and immigration.

The massive social disaster of the counter-productive “war on drugs” is but the most glaring example of the practical result of a fifty year Home Office policy of aggressive stupidity when faced with any problem.

Given the consistent anti-liberal bias of the Home Office, it naturally attracts civil servants to work there who tend to side with the Department’s underlying stances. You do not get what Braverman herself calls “the Guardian reading, tofu eating wokerati” at the Home Office. You get a lot of people who think like Theresa May and rather enjoy creating hostile environments for people – yet that is the kind of audience Braverman has managed to alienate.

By all accounts Braverman has done it largely by what she would call iconoclasm and I would call being unnecessarily rude to staff members who ask you to consider why, from their experience, there is another way of doing something worth considering. Braverman is substantially hated by her senior staff.

I do not know how the civil servants are coping. When Braverman talks in parliament about an “Invasion” of immigrants just after one of the terrorist followers of her philosophy attempted to kill specifically children of migrants with petrol bombs at a reception centre, it creates a dilemma for the civil service – practical as well as ethical.

Speeches for ministers – and carefully crafted compendia of replies to possible questions that may arise – are written by civil servants. They are not drafted by the Institute of Economic Affairs or by the Centre for Policy Studies. They are written by civil servants.

I did this job for years. You inherit many pages of past speeches and prepared answers, encapsulating the agreed official wording on the subjects you cover. You amend the wording only where a minister signs off new wording in response to a written submission (that may entail copying in other government departments affected, who have also to agree any new wording), or where a minister themselves institutes new wording in amending a draft letter or utterance you have prepared for them.

Minor alterations of phrase with no difference in meaning or practical effect can just get added in without fuss.

The minister’s job is to stick to the agreed wording they have been given as the official government line, cleared within Whitehall and in line with policy agreed in writing. 99.9% of the time ministers do this, bar the odd retort or witticism which they understand, if on subject, has to stick within the official lines. Even Boris Johnson, who would generally reply to questions or interventions by an attack on another subject entirely, would normally stick to official government lines when discussing the matter in hand.

Braverman however careers dangerously off piste at will. Referring to migrants as an “invasion” is inflammatory and liable to incite violence against them.

There had been no government agreement to characterise migrants in this way, her own media department did not know it was coming and were not ready for the backlash. Her casual characterisation of Albanians per se as criminals had not been cleared – as it should have been – with the FCO. She is the loosest of loose cannons.

In the normal course of events, civil servants preparing Braverman’s speeches and briefings would now have to incorporate the new lines on migrant invasion and Albanian criminals into the material. Personally I never had to try retrospectively to clear with other government departments very stupid language my minister had used. At a minimum the foreign office,the ministry for local government and the cabinet office should have been consulted in advance on what Braverman said. They were not.

Where civil servants cannot agree language between departments, the matter is referred up to their ministers. Where they cannot agree, it is sent to the Cabinet Office where, in cases of real dispute, a committee will meet and prepare a report, and ultimately the Prime Minister will decide. I have been through all these processes personally.

I suspect Braverman has by now been less formally told to tone it down. But stirring up racial hatred is the right wing Tories’ basic weapon. I fear more will follow very quickly.

————————————————-

Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.

Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.

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

Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.

The ever excellent Scot Goes Pop blog of James Kelly has posted an article disagreeing strongly with my contention that the Alba party should fight the SNP at the next Westminster election, should the SNP renege on its commitment to a “Plebiscite election” that determines Independence.

As James is a person for whom I have great respect, I am taking the time to respond to his points.

We both agree that if the SNP declare a genuine plebiscite general election, where victory leads directly to Independence and not to just another referendum request to Westminster, then Alba should not stand candidates against the SNP (leaving aside the question of Alba’s two sitting MPs).

Where we differ is on whether Alba should stand against the SNP, in the event that the SNP resile on their promise of a plebiscite referendum, and seek to define it as just the seventh election since 2014 where they ask people to vote for them on the grounds they will then ask Westminster for a referendum.

This is not all very hypothetical – I am quite certain that will happen. I suspect James is too.

In that event, I think Alba should stand against the SNP and James believes very strongly we should not. Let me reply to his arguments.

Firstly, he sets up a straw man in knocking down an argument I have never made, that Alba might win seats or overtake the SNP at the next general election.

No, Alba will not be replacing the SNP as the largest party any time soon. We will not even be getting close to doing that.

Of course. My article clearly discusses Alba support at hopefully 4%. It makes the comparator to Sinn Fein, who like Alba had two MPs defected from Redmond’s IPP in 1906, lost them in 1908, and Sinn Fein did not go on to supplant the Redmondites until 1918, twelve years later.

That is about how long I think it would take. It took only slightly longer for the Labour Party to supplant the Liberal Party as the opposition to the Tories in the UK. Because of FPTP, when the switch comes, it comes fast. But that does not mean it comes tomorrow.

We are talking of how we get to Independence in a situation where the SNP leadership has thrown away our best chances and has every intention of continuing to do so.

Of course, I would much prefer a drastically quicker solution where the SNP leadership genuinely make a move for Independence, defy Westminster and stop thinking about their personal careers and bank balances.

Please call me when that happens.

Where I disagree most strongly with James is his notion that Alba would be “humiliated” in an election. I have stood twice as an independent, anti-war candidate in parliamentary by-elections. I gained 5% of the vote in Blackburn and 2.7% of the vote in Norwich North – the top end of the Alba range.

I was not in the least humiliated. I had the chance to express my beliefs, against all the might of the big party machines, and thousands of people listened to what I said and cared enough to go out and vote for me. Honest presentation of your beliefs, as a choice for the electorate, is never humiliating.

Every vote won against the big battalions of the state is a small victory for independent thought.

James’ great error is repeatedly throughout his article to count SNP seats as pro-Independence seats. Independence will never be achieved with Westminster agreement. It must be taken as a right asserted in international law.

Any MP not prepared to defy Westminster for Independence is a Unionist. That is every SNP MP.

My question to James is this. For how many decades is he prepared to assert that we should vote for SNP MPs, who will never make any move for Independence? Why would we vote for people for whom their career, their bank account, and their respectability within the British Establishment are all more important than Scottish Independence?

Unless the SNP are opposed at the ballot box by real Independence supporters, their false flag Independence stance will remain unchallenged. Doubtless Alba would receive fierce criticism from SNP supporters for splitting the Independence vote. Doubtless Alba could enable a few Labour gains from SNP, causing short term unpopularity.

But how else will you get a platform to point out the SNP are not a real Independence party? How else will you ever impact the troughing charlatans?

James’ argument suffers from the fundamental flaw that it treats SNP MPs as pro-Independence MPs, when every single one of them is a Westminster bootlicker, grovelling for “permission” that will never be given.

I am genuinely perplexed as to why James left the SNP at all if he wished to campaign for them. I certainly will not myself remain in the Alba party if it sees itself as not a real alternative for Independence, but simply a bolt-on to the SNP for the Holyrood list vote elections.

————————————————-

Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.

Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.

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

Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.

A “plebiscite election” on Scottish Independence can only mean an election fought on that issue with the understanding that, if the election is won, Independence will be declared. It cannot mean anything else.

In particular, a “plebiscite election” cannot possibly mean an election which, if won, results in a request for a referendum. We have had lots of those elections already. A “plebiscite election” is not an election about holding a plebiscite. It is the plebiscite.

Plebiscite elections are not a new idea in the UK, and are generally on constitutional issues. The accepted historical narrative is that the 1832 General Election was over the franchise and led to the Great Reform Act. The 1910 elections were on reform of the House of Lords. In both cases victory was taken as an unanswerable mandate on a fiercely resisted constitutional reform.

It is worth noting that electoral victory in UK general elections has always meant winning the most seats under the first past the post system. It is a terrible system, but those are the rules. It is 91 years since any party has gained more than 50% of the popular vote in a UK general election (the Tories in 1931). All Westminster government have been elected in the range of 37 to 43% of those voting.

Nobody has ever argued – at the time or since – that the “plebiscite election” on Lords reform in 1910 needed a majority of the popular vote to be valid, as well as the majority of MPs.

In fact if you took the Liberal Party, Labour Party and Irish Parliamentary Party together you get 47.7% of the vote in December 1910 for parties standing on the platform of abolishing the legislative veto of the House of Lords. Yet the election of 399 MPs between them meant both King and Lords gave way. So don’t let the Establishment now con you into accepting vote share rules for a “plebiscite election” in Scotland.

There is no reason a general election in Scotland won by a majority of pro-Independence MPs should not give a similar mandate to action, and lead to a Declaration of Independence. That is the mechanism by which the majority of countries on the globe have won their Independence. Actual referenda are not only not mandated in international law, they are very rare and often distrusted.

Unionists routinely use the argument that one side cannot fairly declare a plebiscite election when voters are concerned about other things. But that argument does not survive thirty seconds of serious thought. If you fairly and squarely say this to the electorate:

“We are standing on the issue of Independence. If we win we will declare Independence”

then the electorate have fair warning and obviously anybody who does not want Independence can and should vote for somebody else.

If the opponent says

“That is nonsense. I do not accept this is an election about Independence. Vote for me because imposing long jail sentences for climate protestors is a much more important thing to do”

then the electorate have a choice. But if the majority vote for the first proposition, it is self evidently true that the less popular second proposition cannot outweigh the electoral victory, by a denialism which the electorate rejected.

It is a nonsensical argument, even if one beloved of the mainstream media.

Now Nicola Sturgeon announced, as a cloth pressed to the haemorrhage of exiting party members, that if the Supreme Court ruled against the Scottish Parliament having the power to hold a referendum, then the next general election would be a “plebiscite election” on Independence.

Having, through her specially appointed Unionist Attorney General Dorothy Bain, done everything possible to ensure Scotland loses the case at the UK Supreme Court, the ruse has got Nicola through a party conference attended largely by the payroll vote and bought her four months in which to wriggle her way out of the plebiscite election pledge.

Sturgeon pressed hard for a Westminster election now, before the Supreme Court judgement comes in. That would be perfect for her because it would provide a plausible argument that it is too early for the election to be treated as the promised plebsicite.

What precisely would be achieved for Scottish Independence by a UK General Election now? Nothing. It would however keep SNP MPs’ bums on the green benches at Westminster for a further five years. In return, it would lose the chance of a plebiscite election after the Supreme Court judgement.

It is however now clear that we will have to endure two full years of a Sunak government. The state and corporate media will unite in promoting the genuinely far right Sunak as a genial technocrat striving to save the UK economy, as it sails into the headwinds of a disastrous world economic situation utterly portrayed as outwith his control and entirely the fault of Vladimir Putin.

Back in the real world, Sunak’s only difference from Truss is one of sequencing – he wants deep spending cuts first and tax cuts for the rich next. She wanted to do it the other way round. With a wave of deep cuts and public spending rises being planned to be well below inflation, we are about to be hit by an austerity shock that will make George Osborne look like Santa Claus.

In that period, having lost the chance to extend their MPs’ lucrative employment contracts to 2027 with an early election (not to mention extend those of their MPs’ staff and get all the Short money), the SNP will now continue to swivel away from the promised “plebiscite election”.

They are already doing that with multiple party figures close to Sturgeon explaining that a plebiscite election is no different to any other election and not actually to be used as a plebiscite. It was just a figure of speech, with no meaning. “Plebiscite” here apparently just means “mandate to hold a plebiscite should Westminster agree to it.”

It is notable that there is zero SNP campaigning going on, in the streets or even online, for a referendum on scottish Independence they claim will be held on October 19 2023. If they did anything to mark one year to the referendum – which you would think would be a key campaigning moment – I could not find it.

For a pro-Independence political activist like myself, the question is now whether genuine Independence supporters should oppose the SNP candidates at Westminster elections. To do so under the first past the post system could lose SNP seats at Westminster to the Unionist parties.

The question is primarily one for the new Alba Party, of which I am a member. Alba has, through membership votes at party conferences, fleshed out a policy platform different to that of the SNP.

Alba wants immediate Independence, and it wants an Independent Scotland to be a republic, outside NATO, in EFTA/EEA rather than the EU, and to have its own Scottish currency from the outset. In addition to these there are a raft of more progressive taxation, nationalisation and spending policies, so Alba has defined its positon well to the left of the neoliberal captured SNP.

What Alba does not have is any significant number of voters. This is a major failing for a political party. But then it is only two years old, contains almost all the people actually campaigning for Independence, and is starting to be picked up as a blip in the opinion polls at up to 4% in Scotland.

Electorally that would not elect any Alba MPs but it is ten per cent of the SNP’s vote.

There is the question of Alba’s two existing MPs, Kenny MacAskill and Neale Hanvey, who under the super vindictive Sturgeon will almost certainly be opposed by the SNP. But leaving that important question to the side, should Alba stand against the SNP in Westminster elections, when this could cost the SNP seats and there appears no realistic chance of Alba winning any?

If the SNP declare an actual plebiscite election, in which a SNP majority will lead to a declaration of Independence, then Alba should not stand against them. It would complicate matters unnecessarily and confuse the electorate. In those circumstances, I would call on all Independence supporters to get behind the SNP, putting aside all differences until after Independence is achieved.

But if the “plebiscite election” tag is purely a ruse to describe a normal election, in which the SNP plan nothing more than to ask Westminster again for permission to hold a referendum (which they know will be refused), then most certainly I shall be arguing that Alba should stand in every single constituency.

If this causes the SNP to lose a handful of seats to Unionist candidates, I shall shed not a tear. Frankly I prefer to argue against open Unionists to the closet Unionists of the SNP, who have betrayed those who voted for them believing they were voting for Independence.

Westminster will never willingly cede Scottish Independence. Never.

The 2014 referendum was only agreed because Independence was at 28% in the opinion polls and Cameron believed a referendum would be easily won. Scotland gave the British establishment the shock of their lives in 2014, and they will not repeat it. Scotland’s economic resources are invaluable to the British elite.

If the British Establishment believed they would win a second referendum, they would not sacrifice so much democratic credibility by refusing it.

Scotland therefore needs to take Independence, not wait to be given it. We have seen moments of great vulnerability for the British state – the Brexit vote and the moment of leaving the EU against the wishes of the overwhelming majority of Scots, the Johnson premiership, the disintegration of Westminster ministerial structures this anarchic Tory autumn – massive opportunities for a bold move on Independence all spurned by Sturgeon.

Opportunities spurned in favour of a legal strategy designed to lose.

Those SNP MPs and MSPs who enable Sturgeon are fast coming to the end of the period where they could claim they were duped.

The SNP MPs at Westminster are achieving nothing whatsoever that advances the cause of Independence. They increasingly get immersed further and further into the processes of legislation for the whole UK, failing to differentiate the interests of Scotland, particularly in the areas of defence and foreign policy.

Unless Sturgeon is ousted in short order, and the plan ditched to please MI5 with a handover to the Robertson power couple, re-electing SNP MPs will continue to do nothing other than to ensure the continued swelling of the bank balances and the pension pots of the MPs themselves, funding for their staff and Short money for the SNP’s smug office bureaucrats.

Independence has not been advanced an inch by these highly paid British state collaborators of the SNP these last five years. That will not change.

Since 2014 the SNP has managed to achieve Scottish Labour levels of both corruption and of incompetence in administration. I once believed that impossible. There are many causes, including crazed over-centralisation where everybody is terrified to take a decision which may displease the dictator, or even to discuss unapproved options.

The limitations of making appointments on the dual bases of personal loyalty and identity politics quotas have also been exposed. There remains a huge amount of talent in the SNP but it has been marginalised and driven from the centre by a leadership that only sees talent as a threat.

Scottish Labour has for decades marginalised any real socialists in the party. But unlike Sturgeon’s continued abuse of state police and prosecution systems systematically to jail or attempt to jail real Independence supporters, at least Scottish Labour did not imprison its internal dissidents.

I have consistently argued that the SNP remains the only realistic vehicle for Independence, it is just a question of changing the driver. But as it continues merrily on the path of Unionism with the passengers apparently too comfortable to care, there comes a time when true Independence supporters simply have to drop the SNP from their calculations as a lost cause.

I believe we are finally there.

So I shall be arguing for Alba to fight the SNP in all constituencies at the next Westminster election, excluding a real plebiscite election. I shall also argue for Alba to fight the SNP everywhere in the next Holyrood election, on both the constituency vote and on the list vote in the d’Hondt system.

This is a hard road. But not an impossible one. There is an extremely close parallel.

The Irish Parliamentary Party of John Redmond was even more dominant in Ireland than Sturgeon’s SNP is in Scotland. In 1906 just two of its MPs, like the two Alba MPs we have now, deserted as a result of lack of progress towards Home Rule. One retired at the next election and one stood and was defeated as a Sinn Fein candidate in 1910.

In the 1910 election the Redmondites continued to be utterly dominant electorally, taking 78 Irish MPs to the Unionists 27. Sinn Fein got nil.

But in the course of just 8 years, by the 1918 general election, Sinn Fein had 71 Irish seats to the Redmondites 6. Simply put, people worked out that the once triumphant Redmondites were not serious about Independence, and they switched to a political party that was. The Redmondites changed their name to the National Party, and quickly descended into irrelevance.

Westminster first past the post is a brutal electoral system. It makes change extremely difficult. But when change does come, it enables it to be exaggeratedly swift and dramatic.

The SNP needs to be opposed simply because it is doing nothing about Independence and has no real intention of doing so. Put bluntly, my patience with the grifters, who grow fat on the backs of betrayed supporters of Independence, has snapped completely.

They need to be shaken hard. If that results in a small temporary increase of open unionists in Westminster, that will be a necessary step in opening the eyes of the Scottish people.

————————————————-

Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.

Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.

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

Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.

There is still no explanation as to why the judge chairman Lady Poole, the lead counsel Douglas Ross KC and three other lawyers have all quit the public inquiry into the handling of Covid in Scotland. This is an astonishing event. The inquiry currently is not happening. But nobody in the media seems particularly to care.

Word being put around the Edinburgh establishment is that there is nothing to report, it is nothing to do with remit or evidence, just about terms of service and the length of the inquiry. But that really does not wash. If the inquiry has collapsed over such issues, either the Scottish government has starved it of resources or the lawyers have behaved disgracefully and unprofessionally, abandoning an important public responsibility midway.

Either way, this cannot simply be shrugged off as nothing. And that is assuming it is true that there is no dispute over substance.

On that substance, obvious mistakes were made – such as the release of patients with covid back into care homes – but plainly they were not malicious. What was extremely malicious was the profiteering – for example over PPE, and Pfizer’s price maximisation on their vaccine. But these are outside the scope of this inquiry. I do not know why.

As regular readers know, I have avoided commenting much on covid on the grounds of lack of expertise. My instincts are libertarian – I would have concentrated more on enabling robust (but voluntary) shielding of the vulnerable rather than locking down healthy young people at low risk. Some things made no logical sense at all – like closing the universities when the schools were open. But I do not share the radical opinions many people genuinely hold, both for and against the lockdowns.

One major issue I have not resolved in my own mind is whether covid-19 was a natural development or an escape from a laboratory of a man made variant. The problem is that the experts best able to determine this are of course themselves in this research industry, which could be at fault in inflicting enormous human suffering.

If it were determined that covid-19 were human engineered, the backlash would result in massive closure of labs and defunding of the industry. I therefore don’t expect the scientists to tell us that any time soon.

————————————————-

Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.

Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.

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

Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.

The legal right of secession of states, outside of a situation of “classic” colonial occupation, has developed enormously in the last thirty odd years. South Sudan, Montenegro, East Timor, Eritrea, North Macedonia, Czech Republic, Slovakia, Georgia, Bosnia and Herzegovina, Slovenia, Croatia, Azerbaijan, Turkmenistan, Moldova, Tajikistan, Uzbekistan, Kyrgyzstan, Armenia, Kazakhstan, Lithuania, Latvia, Estonia and Ukraine are all amongst the new states recognised by the United Nations since 1991.

All of those involved secession from a larger entity. The notion that the right to self determination relates purely to the freeing of non-Europeans from European colonial rule plainly could not survive this onslaught of real world emergence to freedom by European and Eurasian nations. The international law jurisprudence has moved to acknowledge this, most notably summarised in the advisory opinion on Kosovo by the International Court of Justice.

23 nations born of secession in 31 years, all recognised by the UN, makes it plain there is a legal process in routine operation here. That Scotland wishes to become the 24th is not in any sense novel and unusual. Its right to do so is plainly established in international law. That is the basis on which the Government of Scotland should have been approaching the UK Supreme Court (if it approached it at all).

Yet we have had the astonishing spectacle of the Lord Advocate, Dorothy Bain, ostensibly arguing for Scotland’s right to hold an independence referendum, yet never once in a two day hearing asserting the right to self determination of the Scottish people under Article 1 (2) of the UN Charter.

I cannot get through to you how astonishing that is. Let me put it this way. If the Scottish Government do not believe that the Scots are a people with the right of self-determination under the UN Charter, they have no right to apply to the UN for statehood anyway, whatever the referendum result. So why not assert that right now, in the argument for the referendum?

Astonishingly, Bain did not even mention it in court, once. She did mention it in her written submissions, where she stated that Scotland’s right to self-determination has no legal effect in UK law. She also, as I reported yesterday, did find time to argue before the Supreme Court that the mention of “the union of the Kingdoms of Scotland and England” in the Scotland Act was “a peculiarity”, as the Kingdom of Scotland has no legal existence since 1707.

Bain’s supposed argument that the Scottish government has a right to hold an independence referendum rests instead not on the right of the people of Scotland to decide their own future – which Bain has made plain she does not accept – but solely on this argument:

The Scottish parliament, Bain accepts, is constrained by the Scotland Act from legislation which relates to “the Union.” But as a referendum on Independence would only be advisory, it does not “relate to” the Union.

Which, frankly, is bollocks. Even the most ardent supporter of Scottish Independence cannot really believe in this argument. It is embarrassing to be making it.

The argument that Bain should have been making is this:

1) The Westminster Parliament has no authority to make law which constrains the right of self-determination of the Scottish people
2) Yes, the Scotland Act does, quite deliberately, stop the Scottish parliament holding an independence referendum. Of course the UK will try to stop Scotland leaving. But it has no right to do so.
3) Compliance with UK law is not necessary for Scotland to achieve Independence.

That would be precisely in accordance with this statement of international law:

5.5 Consistent with this general approach, international law has not treated the legality of
the act of secession under the internal law of the predecessor State as determining the effect
of that act on the international plane. In most cases of secession, of course, the predecessor
State‟s law will not have been complied with: that is true almost as a matter of definition.

5.6 Nor is compliance with the law of the predecessor State a condition for the declaration
of independence to be recognised by third States, if other conditions for recognition are
fulfilled. The conditions do not include compliance with the internal legal requirements of
the predecessor State. Otherwise the international legality of a secession would be
predetermined by the very system of internal law called in question by the circumstances in
which the secession is occurring.

5.7 For the same reason, the constitutional authority of the seceding entity to proclaim
independence within the predecessor State is not determinative as a matter of international
law. In most if not all cases, provincial or regional authorities will lack the constitutional
authority to secede. The act of secession is not thereby excluded. Moreover, representative
institutions may legitimately act, and seek to reflect the views of their constituents, beyond
the scope of already conferred power.

That statement of international law is the UK government’s submission to the International Court of Justice in the Kosovo referral.

Read it across to the Scottish postion. Of course the Scotland Act tries to preclude Scottish Independence. As the UK government stated in the Kosovo case: “In most cases of secession, of course, the predecessor State’s law will not have been complied with: that is true almost as a matter of definition.”

Defying UK law will not affect Scottish recognition by the international community: as the UK government stated in the Kosovo case “Nor is compliance with the law of the predecessor State a condition for the declaration of independence to be recognised by third States, if other conditions for recognition are fulfilled. The conditions do not include compliance with the internal legal requirements of the predecessor State.”

The Scottish Parliament has the right to call a referendum or to declare Independence as it wishes in reflecting the will of the Scottish people. As the UK government argued in the Kosovo case: “In most if not all cases, provincial or regional authorities will lack the constitutional authority to secede. The act of secession is not thereby excluded. Moreover, representative institutions may legitimately act, and seek to reflect the views of their constituents, beyond the scope of already conferred power.”

If Bain were a half decent lawyer, and any kind of decent Scot, she would have been going at the Supreme Court with The British government’s own words and arguing for Scotland’s right. Instead I have a pile of notes of today’s proceedings so mind-numbingly dull and inconsequential I am not going to bother you with her drivel or that of James Eadie for the UK government.

They conducted a ritual dance across the pinheads of various clauses of the Scotland Act and its schedules, to no useful effect whatsoever.

The Supreme Court will decide that yes, it does have the authority to answer this reference, which it will say was properly made (the judges didn’t like Eadie’s bullying of Bain on this point) and no, the Scottish Parliament does not have competence to pass the draft referendum bill. You will get this decision in late January.

It was an irrelevance. Scotland should of course not be acknowledging any authority of this London court in the first instance.

————————————————-

Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.

Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.

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

Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.

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.

————————————————-

Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.

Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.

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

Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.

The video is now available of this discussion in Liverpool in the furthest fringes of the Labour Party Conference. While the session lacked any adversarial spark, it was a deep dive and I believe very informative. I am here with Stella Assange, Iain Munro, Deepa Driver and Ogmundur Jonasson. Ogmundur’s experience as an Icelandic minister dealing with the FBI is particularly interesting as an example of the lawlessness with which the USA has pursued its vendetta against Assange.

You can find videos of other Future of the Left discussions here, I also feature in a couple of others. The discussion on Ukraine was beset by first morning technical difficulties and the video is not there as I post – it may return.

————————————————-

Forgive me for pointing out that my ability to provide this coverage is entirely dependent on your kind voluntary subscriptions which keep this blog going. This post is free for anybody to reproduce or republish, including in translation. You are still very welcome to read without subscribing.

Unlike our adversaries including the Integrity Initiative, the 77th Brigade, Bellingcat, the Atlantic Council and hundreds of other warmongering propaganda operations, this blog has no source of state, corporate or institutional finance whatsoever. It runs entirely on voluntary subscriptions from its readers – many of whom do not necessarily agree with the every article, but welcome the alternative voice, insider information and debate.

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

Subscriptions are still preferred to donations as I can’t run the blog without some certainty of future income, but I understand why some people prefer not to commit to that.