The Lord Advocate’s “reference” to the UK Supreme Court on whether the Scottish Parliament has the power to instigate an Independence Referendum is carefully wrought to get the answer “No”.
From the opening pleading on whether the Supreme Court should hear the petition at all – which Lord advocate Bain founds solely on the argument that Independence and the UK Parliament are “reserved matters” to Westminster, therefore she is entitled to make the reference –
Bain continually shoots the pro-Referendum argument in the foot. If you believe that Sturgeon and her Lord Advocate are genuinely acting with the intention of gaining Independence, then you must believe Bain is the worst lawyer in the world.
Alternatively she is a middling clever lawyer who has set out deliberately to fail. This could not be clearer than in the course her argument takes next. The reference to the Supreme Court arises, she states, because the Lord Advocate has to certify a Bill as within the competence of the Scottish Parliament, not relating to a reserved matter. Bain states “she would be unlikely to have the necessary degree of confidence that the Bill does not relate to a reserved matter”.
Given that she has stated at para 8 that this is about a reserved matter and that is why the Supreme Court has competence to hear the reference, it is hardly surprising that she does not have confidence that this is not a reserved matter.
But as an exercise in pointing the Supreme Court towards refusal, para 22 could hardly have been bettered. Bain here plainly said that she cannot certify the Referendum Bill as within the competence of the Scottish Parliament as she does not have confidence in the Scottish Goverment’s case – the very case she is supposed to be making out here.
It did not have to be formulated that way. Rather than stating that Bain does not have “the necessary degree of confidence that the Bill does not relate to a reserved matter to “clear” the Bill”, she could have written something neutral along the lines of “Given the serious implications of a potential Independence referendum, the Lord Advocate considered it proper to defer the decision to the highest authority.”
But Bain does not do that. Instead she gratuitously tells the Supreme Court that:
a) In her opinion the Referendum Bill cannot be certified as within the Scottish Parliament’s competence
and – pay attention this is crucial
b) Should the Supreme Court refuse to give a reference or say it is up to the Lord Advocate, she is going to refuse to certify the Bill
I have said that Bain could have put the question neutrally, and not told the Supreme Court her position that the Bill cannot be certified. Of course a Lord Advocate – and a First Minister – who actually believed in Independence would not have referred the matter to London at all. They would have certified the Bill as competent and left it to the unionists to challenge through the courts.
Instead we have this charade of pleading to London for Scotland’s right to decide, while grovelling at the same time and stating that in their personal opinion, we do not have the right to decide.
My personal experience of Scotland’s top lawyers – which has been both profound and incredibly costly – is that the Scottish legal profession is the most deferential, self-serving and utterly cowed by the Establishment in all of Europe. The Scottish legal profession has united behind Bain in sycophantic applause of her “even-handed” approach in setting out “both sides of the argument” – even though in so doing she has made plain which side she favours, and it is not the Independence side.
But the Lord Advocate is not supposed to be even-handed. She is supposed to argue the Scottish Government’s case. That is why she is called the Lord Advocate and not the Lord Judge*. Bain is a minister in the Scottish Government. That is an affront to the separation of powers, but it makes plain she speaks and argues for the Scottish Government of which she is a member.
When the then Lord Advocate intervened against Martin Keatings in the Keatings case (cited by Bain) on precisely the same issue now referred to the Supreme Court, the Lord Advocate was not even-handed. The Lord Advocate did not set out both sides.
In the Keatings case, the Lord Advocate put strongly the Scottish Government position, which was that Martin Keatings is but a peasant with no standing, and that whether a referendum without Westminster approval would be legal is of no concern to the likes of Keatings and the common scum, but is a question the putting of which before a court is solely under the authority of the mighty Nicola Sturgeon.
I have paraphrased the Lord Advocate’s argument in the Keatings case there slightly, but that is not in the least an unfair characterisation.
The judges in that case followed the Lord Advocate – and it is worth noting that the Scottish Government through the Lord Advocate and the Westminster government through the Advocate General combined to put down Keatings’ impudent assertion that the people of Scotland had an interest. As Bain puts it at para 29 “The Lord President’s discussion [judgment] largely reflected the the submissions made on behalf of both the Advocate General and the Lord Advocate.”
In setting out the “even-handed” arguments for and against the competence of the Bill, Bain devotes most space to an exhaustive series of quotes to show that it was the specific intention of Westminster in passing the Scotland Act that the Scottish Parliament could not choose to hold a referendum on Independence.
The sole argument on which Bain founds the case for a referendum being competent, is that the referendum would have no effect. It would not be “self-executing”, and the ultimate political result of such a referendum cannot be easily foreseen by the courts. Bain is stating that Westminster could simply choose to ignore a “Yes” vote in a Scottish parliament initiated referendum, and that it would just be a “consultative exercise” for the Scottish government to determine popular opinion.
That really is how the Lord Advocate for the Scottish Government frames the “positive” case for the referendum.
Self-Determination – the Elephant in the Room
The most important point of all is that Bain makes no argument that Scotland has the inherent right to act unilaterally on the principle of self-determination. She argues purely from UK domestic law and makes no argument from international law whatsoever.
Bain in fact clearly points that she does not believe Scotland has any rights in international law. She dredges up and gives in full this highly obscure quote from Lord Slynn in a House of Lords committee:
“For my part, I would accept that there was an international treaty between
England and Scotland (as it has often been so called in the past), but since
neither state has existed as such since 1707 there is no party to the treaty which
could enforce it.”
The non-existence of Scotland appears to be accepted by Bain. That the same non-existence criterion could have been applied to every colony before it regained independence appears not to trouble these people.
Yet there appears, from time to time through the enshrouding mists of Bain’s argument, an entirely disjointed reference to Scotlands right of self-determination, simply asserted, contradicting her major arguments but ignored in them, as though a mantra with no meaning. Peculiarly, the strongest statement of Scotland’s self-determination referenced by Bain is a quote from Margaret Thatcher:
The right to self-determination emerges again in Bain’s conclusion. Here she makes her view crystal clear, that self-determination is part of the “political context” and not a legal matter, it has no legal effect.
This explains why Bain nowhere mentions self-determination as a legal argument justifying Scotland’s right to hold a referendum.
But this is spectacularly wrong. Self-determination of peoples is a fundamental legal right, and there is a huge amount of treaty and case law around it.
The UN Charter itself embodies “the self-determination of peoples” in Article 1 (ii).
The Helsinki Final Act – to which the UK is a signatory – is explicit at Article VIII on how secession should be treated, and is vital here because it relates specifically to the European context. It states:
“By virtue of the principle of equal rights and self-determination of
peoples, all peoples always have the right, in full freedom, to determine,
when and as they wish, their internal and external political status.”
“To determine when and as they wish”. That could not be clearer. The UK is a signatory. It would be impossible to be more relevant to the question of whether Scotland has the right to hold a referendum. Why has Bain not coupled the right to self-determination with the UN Charter and the Helsinki Final Act in her reference to the Supreme Court?
It is not because the UK Supreme Court cannot consider international law in this context. It most certainly can, and indeed is bound to. The Supreme Court of Canada, in re Secession of Quebec, devoted more than half its judgment to the right of secession as a matter of international law, after considering the case in domestic law.
Like the London Supreme Court, the Supreme Court of Canada is a residual agent of English monarchical imperialism and so, headed by a corrupt alcoholic “guided” by MI6, it found against Quebec (as London will find against Scotland). But that the question of Quebec secession was very much a matter of international law was plainly acknowledged by the Canadian Supreme Court.
The Independence of a state is primarily, indeed exclusively, a matter of the status of that state (or non-state) in international law. It is a question of its relationship to other states and multilateral organisations. To ignore this international law aspect, as Bain does, is ludicrous. It renders self-determination, which should be her strongest legal argument, entirely nugatory.
The Independence of a country is not a matter of domestic law it is a matter of international law. The right of the Scottish Parliament to declare Independence may not be restricted by UK domestic law or by purported limitations on the powers of the Scottish Parliament. The legal position is set out very clearly here:
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 is a commendably concise and accurate description of the legal position. Of major relevance, it is the legal opinion of the Government of the United Kingdom, as submitted to the International Court of Justice in the Kosovo case. The International Court of Justice endorsed this view, so it is both established law and follows from the stated legal opinion of the British Government that the Scottish Government has the right to declare Independence without the agreement or permission of London and completely irrespective of the London Supreme Court.
I have continually explained on this site that the legality of a Declaration of Independence is in no sense determined by the law of the metropolitan state, but is purely a matter of recognition by other countries and thus acceptance into the United Nations. The UK Government set this out plainly in response to a question from a judge in the Kosovo case:
2. As the United Kingdom stated in oral argument, international law contains no
prohibition against declarations of independence as such. 1 Whether a declaration of
independence leads to the creation of a new State by separation or secession depends
not on the fact of the declaration but on subsequent developments, notably recognition
by other States. As a general matter, an act not prohibited by international law needs
no authorization. This position holds with respect to States. It holds also with respect
to acts of individuals or groups, for international law prohibits conduct of non-State
entities only exceptionally and where expressly indicated.
It is particularly important to note that in its Kosovo opinion, the International Court of Justice plainly overturned the Supreme Court of Canada’s argument in Quebec that the right to territorial integrity trumps the right to self-determination. That is vital for the right of secession for Scotland.
80. Several participants in the proceedings before the Court have contended that a
prohibition of unilateral declarations of independence is implicit in the principle
of territorial integrity.
The Court recalls that the principle of territorial integrity is an important part of
the international legal order and is enshrined in the Charter
of the United Nations, in particular in Article 2, paragraph 4, which provides that:
“All Members shall refrain in their international relations from
the threat or use of force against the territorial integrity or political
independence of any State, or in any other manner inconsistent with
the Purposes of the United Nations.”
In General Assembly resolution 2625 (XXV), entitled “Declaration on
Principles of International Law concerning Friendly Relations and
Co-operation among States in Accordance with the Charter of the
United Nations”, which reflects customary international law (Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America), Merits, Judgment, I.C.J. Reports 1986, pp. 101-103,
paras. 191-193), the General Assembly reiterated “[t]he principle that
States shall refrain in their international relations from the threat or use
of force against the territorial integrity or political independence of any
State”. This resolution then enumerated various obligations incumbent
upon States to refrain from violating the territorial integrity of other sovereign States.
In the same vein, the Final Act of the Helsinki Conference
on Security and Co-operation in Europe of 1 August 1975 (the Helsinki
Conference) stipulated that “[t]he participating States will respect the territorial
integrity of each of the participating States” (Art. IV). Thus, the
scope of the principle of territorial integrity is confined to the sphere of
relations between States.
81. Several participants have invoked resolutions of the Security
Council condemning particular declarations of independence: see, inter
alia, Security Council resolutions 216 (1965) and 217 (1965), concerning
Southern Rhodesia; Security Council resolution 541 (1983), concerning
northern Cyprus; and Security Council resolution 787 (1992), concerning
the Republika Srpska.
The Court notes, however, that in all of those instances the Security
Council was making a determination as regards the concrete situation
existing at the time that those declarations of independence were made;
the illegality attached to the declarations of independence thus stemmed
not from the unilateral character of these declarations as such, but from
the fact that they were, or would have been, connected with the unlawful
use of force or other egregious violations of norms of general international law,
in particular those of a peremptory character (jus cogens).
In the context of Kosovo, the Security Council has never taken this
position. The exceptional character of the resolutions enumerated above
appears to the Court to confirm that no general prohibition against unilateral
declarations of independence may be inferred from the practice of the
The key conclusion of the International Court of Justice is
84. For the reasons already given, the Court considers that general
international law contains no applicable prohibition of declarations
I have long been both troubled and astonished that the case of Scottish Independence appears the only instance in history where the claim to Independence has never been advanced by the relevant political leadership as a right in international law. Rather this right is deliberately ignored or even disparaged, as Bain does with her quote that Scotland’s rights in international law vanished with the state in 1707.
Part of this may be explained by parochialism. The Scottish legal profession is horribly inbred – Lord Advocate Bain’s husband was on the bench which sent me to jail for journalism exposing corruption in the Scottish legal system. Part of it is due to a myopic outlook – the SNP depends heavily on UK constitutional lawyers like Professor Aileen McHarg who are obsessed with the minutiae of domestic legislation and care nothing for international law.
I suspect the biggest problem is lack of self-confidence and the Scottish cringe.
Permission for Independence will never come from London. Bain’s submission to the Supreme Court is designed to fail. If you believe we need permission from London at all, plainly you do not believe in Scotland’s right to self-determination.
Scotland will only ever achieve Independence by acting on the International Court of Justice’s ruling that domestic legislation of the state being seceded from cannot constrain the right to self-determination of a people. Of course Independence will be illegal in UK law. The London Establishment won’t willingly relinquish Scotland’s resources. If you kowtow to them, you don’t actually believe in Scottish Independence.
*Though there is nothing less even-handed than a Scottish judge
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 number 3 2 1 5 0 9 6 2
Sort code 6 0 – 4 0 – 0 5
Bank address Natwest, PO Box 414, 38 Strand, London, WC2H 5JB
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.