A motion has been filed for the Lord Advocate (who was invited into proceedings for any interest the Scottish Parliament had in the case) by the Scottish Government Legal Directorate seeking to recover costs against myself for the case.
The motion reads:
On behalf of the Second Defender and Respondent to find the Pursuer and Reclaimer liable to the Second Defender and Respondent in the expenses of the Outer House and Inner House process, as the same shall be taxed by the Auditor of Court.
In simple terms, it is the Lord Advocate (who is a member of the Scottish Government cabinet) seeking costs in a case where he has done nothing but disrupt it. Every motion (including the ones they dropped last minute after we’d spent time and money drafting responses to them) were followed by the words “assume our own costs”. It became pretty clear early on, what the intention of the Lord Advocate was, namely to run up costs. After all, this is the individual who put the words “It’s not for the pursuer to stand in the shoes of parliamentarians” into a legal response. Of course, the “pursuer” in this case, although named as me, is 10,000 members of the electorate.
He was repeatedly called upon (especially after the Scottish Government withdrew) to say who he was working for, the Scottish Parliament or the Scottish Government, because he continued to advance the arguments of the Scottish Government after they had withdrawn. Put simply, the Scottish Government withdrew, and the Lord Advocate (who is supposed to be non-political by the way) continued to act as hatchet man.
This is the cost of asking a reasonable question of law, which politicians have failed to answer for over 22 years which has still not been answered because of the Lord Advocate and the Scottish Government. The motion for expenses was not unexpected, but you’ll note that nowhere in this article do I mention the Advocate General, the UK Governments legal counsel. That’s because the UK Government seem to have taken the high road on this one.
Still though, Wolffe is on his way out, and if I may just say, I hope the door hits him in the arse on the way out. He’s been nothing but an impediment to this case, but in reality, nothing but an impediment to Scotland as a whole.
Of note, however, during the proceedings was the Lord Presidents statement in the last paragraph of his ruling. He openly questions the level of costs for a case which saw no answer, and directly called into question something called the gill review, something which was a disaster for public law in Scotland because it had the effect of cutting off access for we mere plebians in serious matters of public concern. The fact that the Lord President himself has questioned the costs in this case, and indeed the Gill review itself, is an indication that one legacy from this case may be some serious changes on the horizon which will result in greater acess for public litigation – which is a good thing.
But let this serve as a warning to you all – us mere plebians, despite politicians claiming we’re sovereign, are only afforded that title when it serves them and when saying it will win them votes. In reality, it’s not for we mere plebians to stand in the shoes of politicians, we are secondary to them and woe betide you if you ever question the political elite on serious matters they don’t want to discuss – because in modern Britain, asking reasonable questions is a reason for them to deliberately run up courts and to seek to bankrupt you.
But how can this entire shambles be summed up. Well simply put it was a case of us inviting the lord advocate and scottish government to participate, them doing the uk governments job for them, deliberately trying to delay and when that didn’t work abusing court processes to try and have it delayed by another means and run up costs. The Scottish Government and Lord Advocate trying to get it transferred to a process which they knew was inappropriate so it could be kicked (and failing) The scottish government dropping out when they bungled it, but getting the lord advocate to continue to advance their arguments, some more abuse of process and an insistance that everyone assume their own costs. The Lord Advocate repeatedly asked who he was working for and refusing to answer and the question being asked not being answered.
All while the UK Government sat back in their chair and whistled.
Which wouldn’t be so bad if it were not for the fact the case was to establish if the Scottish Parliament could pass a bill for a referendum without needing the UK Governments consent. Which would have immediately meant the SNPs “draft bill” would have been competent to pass.
In otherwords the very same fight that the SNP would need to have anyway when they inevitably put it to parliament and the UK Government challenges it.
What is strange though is the timeing of some of the events. For instance, the SNP announcing their intention to put forward a draft bill happened the very same day that the press (3 hours after it infact) got wind that the Lord Advocate, on behalf of the Scottish Government had said “it’s not for the pursuer to stand in the shoes of parliamentarians” in the pleadings (the pursuer is 10,000 members of the public by the way).
The 11 point plan released by Mike Russell, happened the day after the first set of hearings where Lady Carmichael couldn’t consider them (yes that plan that falls apart at part 5). Now you’re not going to tell me that such a plan, released by a minister was not scrutinised by either the Scottish Government Legal Directorate or the Lord Advocate as the highest law officer in Scotland – which means those departments knew about this 11 point plan while they were in arguing at the hearings and failed to disclose it.
Then of course, my personal favourite is the fact that the bill is not a bill, but only a draft bill. The SNP could have easily passed it as a bill with an activation clause (say that on the return of a pro-independence majority a simple vote of parliament would activate the provisions there-in), but nope, instead, it was only a draft bill, which is the primary reason that the Lord President refused to make a ruling on whether it was competent or not. But that didn’t stop the SNP from advancing it to the public as it definitely being able to pass for their own electoral advantage at the Scottish Elections? Something which every member of the cabinet from the First Minister down knew was a lie, a fraud perpetrated on the electorate. And how do we know this? Firstly, because the question of whether or not the Scottish Parliament could pass such a bill without the permission of Westminster has never been tested; and secondly – It was the literal f****** point of the people’s action on section 30.
Now the bill will be put to parliament (if the SNP ever actually move forward with it, and I doubt their intentions), it will be immediately challenged by the UK Government. It won’t gain royal assent so it won’t become law, and while the SNP are fighting the UK Government, the UK Government will simply remove parts of that bill from the competency of Holyrood, meaning that the court will have to rule against the SNP. And How do we know this? Because it’s literally what happened with the continuity bill. Outrage will no doubt follow, the SNP will stomp their feet, we’ll be stuck in the UK and 5 years from now, the SNP will just have to ask for another mandate. But even if by some miracle the court rules in the SNP’s favour and it passes, it will still not justify the fact that the SNP will have had exactly the same fight as the people’s action at twice the cost to the electorate, when they could have settled the dispute permanently in the people’s action. The reason for not doing so? The paperwork didn’t have an SNP badge on it.
Now there are some (SNP apologists) who scream and yell that I knew what I was getting into, and that the hundreds of thousands of pounds being asked for is reasonable. Those people would be wrong, and the reason I can say that is because Lord Carloway, Scotland’s highest judge actually commented on the expense of the case in the last two paragraphs of his ruling. He did so without us actually bringing it up, autonomously, of his own accord. Which in of itself should tell you something. Here’s what he said:
 Before leaving the matter of expenses, it is worth commenting that the figures, which were given to Lord Ordinary about the potential level of expense, provide considerable cause for concern in relation to access to justice. The sum of £65,000 per party, which the Lord Ordinary fixed upon, is worrying, if this is thought to be reasonable in a case which involves no substantial dispute of fact and is resolved at a legal debate. Although the case proceeded, correctly, as an action rather than a petition for judicial review, the expenses regime ought not to be too different. The judicial review hybrid petition process was designed to be a “speedy and cheap” method of review in the wake of the remarks which were made in Brown v Hamilton District Council 1983 SC (HL) 1 (Lord Fraser at 49; see Prior v Scottish Ministers 2020 SLT 762, LP (Carloway), delivering the opinion of the court, at para ). If the cost of pursuing an action, which does not even require proof, is to amount to sums of the nature contemplated by the Lord Ordinary, the court, and perhaps also the Auditor, will require to consider what steps require to be taken to remedy the position. It may need to revisit the principles of the Gill Review in this regard.