The ruling of Lady Carmichael

As we expected in this first round, the ruling of Lady Carmichael did not go in our favour. But neither was it a silver spike through the heart. It is a highly appealable judgement.

While she may have dismissed the case on the hypothetical, academic, premature, it is clearly done on a neutral basis, and indeed in keeping with other cases of this nature.

As I have said many times before – it is very unusual in this type of litigation to get an opinion in the outer house and it almost always ends up in the inner house.

I note that she rejected pleas 3, 6 and 7 of the Lord Advocate. Pleas 3 and 7 was the contention of the Lord Advocate that this case should have been brought by Judicial Review, and even if it had been brought by Judicial review, it would then have been incompetent. She repelled both of those suggestions. Meaning that our methodology in this case is the correct one.

The 6th plea in law was also repelled, namely that granting the declarators we asked for would have been “inconsistent with the constitutional structures established by the Scotland Act 1998. Again, thumbs up for the procedure.

So the Lord Advocates arguments have taken a serious bruising as well. So not all bad news.

It is interesting to note that in no less than two places in her opinion she mentions allegations of “unlawfulness” (141) and “unlawfulness or abuse of power” (25/2).

It is also interesting to note that there is no mention of the announcement of the 11 point plan from the SNP the day after the hearing, which for all intents and purposes rendered all of the pleas in law for the defenders, meaningless. 

(See my post on the Scottish Government pulling a fast one here)

This means, that as a matter of course, it appears she believed she had no choice but to dismiss because she didn’t have all of the necessary information to move it from one column (hypothetical, premature, academic) to the other column (not hypothetical, not premature, not academic). This is purely a technical issue, which would not have been an issue if the Scottish Ministers had been more forthcoming in terms of the 11 point plan, lending weight to the fact that its release less than 24 hours was not done under the purest of intentions.

But Lady Carmichael cannot be held responsible for something which was not divulged to her. She can only opine on what she sees in front of her, and you will all recall that I have already raised the issue of the 11 point plan released a day after the hearings and whether the Lord Advocate of SGLD already knew about that plan before arguing at the hearings during the two previous days.

You will also note the answer given by counsel for the Lord Advocate that he is “not a member of the SNP”, in response to the question by Aidan O’neill QC about who exactly the Lord Advocate is arguing for? The Scottish Parliament or the Scottish Government, because the Scottish Government supposedly withdrew. It actually didn’t answer the question because the Scottish Government and the SNP (although the SNP are the government at the minute) are classified as different entities.

All-round one has done, is to show the public that the uncodified constitution of the UK is a bit like waving your open hand in front of your face. You can blur things in the short term, but eventually, you realise that there are still gaping holes that you can see daylight through.

The Advocate General and Lord Advocate have done everything they can to blur the lines in this case but the gaping holes in the constitution are there for everyone to see, and now they are on public display. The institutions of parliament which are supposed to represent the people are in fact deeply flawed when the electorate is deliberately blocked from trying to ask a reasonable question about their own constitutional future.

It was, for all intents and purposes a neutral ruling because she did not have available to her, all the information she required to rule, and from first glance the ruling is highly appealable, especially considering the release of the 11 point plan, conveniently delivered to the public after the hearings.

What we need now is a referral to a higher authority and that comes in the form of the inner house of the court of session, and as I told you before, this was the expected next step – we’re in better shape than we thought we would be. 

So, I’ve already instructed that process to commence and it’s off to the inner house we go. 

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