So the opinion of the court has been released and it’s a bad news / good news kind of day. Let me be clear – the fight is not over! The fight is still on in earnest!
On one hand, the court has decided not to allow the appeal, but on the other we’ve struck a major blow for access to justice as a whole in Scotland.
The inner house of the court of session has upheld the previous decision of the court. The reason for this is because the Scottish Government did not introduce a bill, they only introduced a “draft bill”. The court states at Paragraph 55 of the Judgement:
At present, there is no Bill before the Parliament, although there is a draft Bill. A draft Bill has no legal status. The result of the election is not yet known. A Bill may or may not be introduced, depending upon the Government formed as a consequence of the election. If introduced, a Bill may or may not be passed by the Parliament, depending upon that institution’s composition. If a Bill is introduced, it may or may not be in the form which is contained in the draft. No matter what its initial form, it may be amended. The UK Government may or may not be prepared to obtain an Order in Council under section 30 of the 1998 Act, which would, in any event, allow the Bill to proceed to Royal Assent. If the Bill were passed without such an Order, it is highly probable that the UK Government’s law officers would refer the Bill for scrutiny by the UK Supreme Court.
In simple terms, the SNP’s failure to actually put forward a proper bill is the primary reason why the court refuses to consider it. But you will note the words “A draft bill has no legal status”. Simply put, if it has no legal status before the court, then it also has no legal status under which the Scottish Government can claim it is a legitimate bill for the purposes of this election.
Indeed, many of the backers will be fully aware of the fact (because I have mentioned it many times in communications) that under Section 31 of the Scotland Act 1998, a person introducing a bill to parliament must declare that it is lawful, so too must the presiding officer of parliament. The purpose of this action is to establish that the Scottish Parliament has the power to legislate for a second referendum and therefore it also would prove that the SNP’s draft bill was lawful.
You cannot on one hand proclaim that a bill is lawful, and on the other say you expect a legal challenge from the UK Government. The two are diametrically opposing viewpoints. The very fact you expect legal challenge means you are uncertain about the “vires” (whether or not the bill is lawful) of the bill you are putting forward.
We argued this very point in the case, here’s a snippet from our note of argument in December 2020:
Simply put, what Aidan was arguing is that the electorate need to be fully informed in the run up to the electorate on whether or not the draft bill is competent to pass or not. Campaigning on “our bill is lawful” when you don’t know if it is lawful or not, is lying to the electorate any way you swing it. In simple terms, if you assert something is lawful and say you are going to do something, then are elected on that “mandate” (buzz word alert) only to then find when you try to implement that mandate (in this case putting forward a bill you don’t know is competent to pass because you never checked) and find out that it is outside of the competency of parliament, then you’ve lied to the electorate. In otherwords, this case is about proving that the SNP’s bill is fully legal to be passed, to cut off the UK Government at the knees, while simultaneously proving that the SNP is not lying to the electorate – and they’ve blown their own toes off in proving that their own bill is within the competency of the Scottish Parliament.
If the UK Government do challenge their bill when they put it forward (which is going to happen) then the very same fight and the very same question that is being asked in the peoples action will be re-litigated. The Scottish Government could have avoided that by joining in these proceedings and arguing that their bill was competent – and then the UK Government would have had nothing to challenge, because if the court says it is lawful, then it is lawful. Those are not my words, those are the words of the First Minister to the press on the day we served the summons in this case on the UK Government.
However, because the SNP have simply put through a “draft bill” and not a “bill” this has royally screwed an action that would see that bill declared as lawful. Simply put, the SNP have shot their own toes off.
And the SNP would say to you that they had no other way, and that would be a Prize A porkie, because they could have easily introduced and passed the bill with a paragraph dedicated to the activation of that bill, something like it being activated in the event of a pro-independence majority voting in the Scottish Parliament etc.
The issue of standing is still on the books, however, this can reasonably be overcome by the pursuer in the case (that would be myself) being elected to Holyrood next week. Many have asked whether or not another parliamentarian becoming a pursuer and joining the case would help, and unfortunately no, that won’t work. Had politicians/parliamentarians joined the case at the very start then yes, that would have been fine, but unfortunately at this stage, they cannot join retroactively. The only way to get around the issue is to have the current pursuer become a parliamentarian. With that, I would be a member of the parliament actively being a person who would be seeking to exercise the powers and prerogatives of parliament.
But ultimately, I am disdainful for this position of parliamentarians having more standing than a member of the electorate. Politicians like to trumpet the idea that the people are sovereign, that power is derived from sovereignty, so therefore the people being sovereign, is where power is derived. The reality is that the society we live in doesn’t really reflect that, politicians think of themselves as having a higher station than the people they represent, and as a member of the electorate, I am not afraid to say that really pisses me off. I’m sorry to put it in such terms but there you have it!
My view is that parliamentarians are there to speak on behalf of the sovereignty of the people (as we have argued in this case many times) because that’s how it is supposed to be. However, when you boil it right down, the arguments of the UK Government and the Lord Advocate (who is supposed to be arguing for the powers and prerogatives of the Scottish Parliament, but instead has been doing the UK Governments job for them) have been that answering the question of whether or not the Scottish Parliament can legislate for a second referendum should be left up to the politicians. Unfortunately, the politicians have no interest in having this question answered. It serves the yes politicians to have something to rebel against, and it serves the no politicians to have the ambiguity hang above the Scottish Peoples head like Damocles sword so they can continue to perpetuate the myth that the Scottish People need the consent of those with a vested interest in maintaining the status quo; and through ambiguity, keeping our parliament subservient. It’s easier to make political capital in ambiguity than in certainty.
Now we enter an election with uncertainty because politicians don’t have the balls to actually stand up and have a question answered that they have allowed to fester for 22 years.
But let me be clear, this is far from over. I will be going hell for leather to try and get elected next week and if successful, I’ll be going in swinging. As for the case, counsel is currently looking over the judgement to see what steps are next. This is far from over.
One paragraph in the opinion of the court was extremely telling though, as you all know, we put our full arguments to the court. At paragraph 66 the court states:
The question would have been whether an Act to hold a referendum on Scottish Independence “relates to” (s 29(2)(b)) “the Union of the Kingdoms of Scotland and England” or “the Parliament of the United Kingdom” (sch 5 part I para 1(b) and (c)) having regard to its effect in all the circumstances (s 29(3)). The Act would relate to these reserved matters if it had “more than a loose or consequential connection with them” (UK Withdrawal from the EU (Legal Continuity (Scotland) Bill 2019 SC (UKSC) at para , quoting Martin v Most 2010 SC (UKSC) 40, Lord Walker at para ). Viewed in this way, it may not be too difficult to arrive at a conclusion, but that is a matter, perhaps, for another day.
You will note the last sentance in that paragraph which states:
Viewed in this way, it may not be too difficult to arrive at a conclusion, but that is a matter, perhaps, for another day.
This is extremely revealing because what this is effectively saying is that in our case if we managed to get over the hurdle of standing and the bill had been properly introduced, the court would have had absolutely no problem in actually coming to a conclusion on this matter. Considering the UK Government advanced no argument against our argument that it is lawful for the Scottish Parliament to legislate for indyref 2, we can pretty much read this as it having been an easy decision, likely in our favour.
Combine the previous opinion of other judges in this case that we had a reasonable chance of success and a picture begins to form.
It is, however, strange that the court would include this line because usually it would be followed with a sentence or two that “if they were to opined it would be…xyz”. However, the court didn’t do this. Which makes means this line is effectively “we know what the answer would have been but we’re not going to tell you”, which as you can understand can be hugely frustrating.
What has to happen next I cannot discuss publicly but I made a promise and this fight will continue. For the next week, however, my concentration will be on the election and trying to get to Holyrood for the purposes of protecting this case. I hope that the backers will support in that endeavour but we shall have to see.
In other news, however, I can end this update on a very positive note. The Gill Review was a review undertaken about the court’s system many moons ago, and it was not a good one for the purposes of public law in Scotland. It reduced access to the court for the common person and put in place many catch-22s in terms of access to justice. It effectively made the courts a place for the elites. However, in our case, the court thought it prudent to make an absolutely huge statement about access to justice and the cost of accessing the courts in Scotland:
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.
This statement is the equivelant of taking a baseball bat to the Gill Review which has tied the hands of public law specialists and clients of limited means. It actively calls out the cost of litigation and the position which has seen the strong be able to take advantage of the weak through the application of mass resources (like the tax base being used by the Government to pulverise a commoner simply seeking an answer to a simple question of law for instance), the court has actively questioned the Gill Review in our opinion – it cannot be understated the huge significance this could have for access to justice in Scotland. This one paragraph is a real blow to the (snobbery?) “exclusivity” of access to the courts. So on this front, this is most certainly a victory for the little guy!
This fight is not over. The fight for election to Holyrood is on in earnest, the fight to continue this case and obtain the judgement we seek on behalf of the 10,000 backers will be redoubled. We’re down but not out!
Be clear – I have absolutely zero intention of backing off with the Peoples Action on Section 30 – It will take a while for counsel to absorb today’s ruling. I made a promise to the backers, I will not shy away from that commitment AND I will not acquiesce to politicians who believe themselves to be above the people they serve, nor a broken system that enables that viewpoint of automatic self-entitlement.
There are words I will use, to sum up my position (often wrongly attributed to Churchill because he did not say them) which I think spells out everything I have said in the past year and a half (with a slight re-write):
Success is not final, failure is not fatal: it is the courage to continue that counts- and continue we will! The people’s voice will be heard!
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