I’ve written this a few times in my head and questioned if it adds to the debate, or if it has potential to stir up the wrong sort of message, however I want to think out loud for a moment. Join me…
On Wednesday the Supreme Court will decided whether the Scottish Government can have a referendum on Scottish Independence, it can also decide to not answer the question, because its ‘premature’ as happened in the Peoples S30/Martin Keatings case.
I’ll preface it with the obvious, I am not a lawyer, and my entire legal career has come from watching Harvey Spectre in Suits, Annalise Keating in HTGAWM, Olivia Pope in Scandal, and Mickey Haller in Lincoln Lawyer. So you’re in dreadful hands here on in.
Deciding not to give an answer is incredibly likely to happen, mostly because it’s the inverse to what everyone hopes it about to happen. The 2020 decade will strike again. It does seem to a non-option though as I imagine not answering will force the ScotGov to truck on and end us back in court on the same question when challenged, but with an altered referendum timeline.
Apparently the court can give a nod and wink though to what it would say, if it hypothetically did get into that situation, so all may not be lost. Officially unofficial obviously, in line with our great unwritten constitution on which this mess sits.
This is where my eyes roll so far back in my head and I feel sorry for the folks involved. The court basically has some old historic bits of tat to refer to, some are valid, some are not, some are about kings and queens, some are about declarations. It’s a great big mess.
The Lord Advocate is the chief legal officer of the Scottish Government, while also being the same of the Crown in Scotland, while occasionally the chief public prosecutor. It seems a lot, and contradictory.
The Lord Advocate Dorothy Bain KC made a submission I was incredibly impressed with, she represented both sides of the argument, explained why she needed the court to interject, and ultimately made the case of – its just a question we’re asking, is that so bad?
She also pointed out the Union as written doesn’t actually exist – which I chuckled a lot at.
Then we’re onto the court itself. The Supreme Court handles all the really tough stuff. It’s the final level of the court game.
Douglas Chapman MP got into a bit of hot water for suggesting there may not exactly be the greatest of chances in a UK Supreme Court. It’s worth noting though, the clip and sentence used was without context. He was actually answering a question of whether a political or legal solution was preferred, and did so, without the knowledge that weeks later – the case we discus today even existed.
I find myself compelled to agree with the sentiment though. The Supreme Court mostly sits in London, in a building under the Union Flag – an arrangement they come to by following the recommendations of the British Flag Institute. I should note though in the interests of fairness, if we got the decision one Wednesday later, it would actually be the one day of the year – that they fly the saltire – a missed PR win for the Supreme Court, I jest.
Under the flag and in the building in London, we have the Justices, which are 10 men, 1 woman, all white, and all on the older side.
They have a diversity and inclusion strategy, however people like important functions of life, to look and feel like them. It’s quite important to walk the walk, not just talk the talk.
It’s not entirely fair though, because getting in, requires a few specifically picked people to push in your name, it goes a few rounds of approval and then the King/Queen appoint you. You take an oath to that monarch.
Once I heard we had the Queen purr to the UK Prime Minister after the first defeat of the Scottish Independence referendum – taking an oath to the monarch seems like a contradiction to being in public service.
I am going to be brutally honest, I shortened it in my head to be this:
How on earth are we getting a fair kick of the ball, when the person making the argument represents the crown as part of wearing many hats, in a building in the heart of the UK establishment, following the guidance of the institutions of Britain, under the Union flag, by a 92% white, old, male audience based on a constitution thats on sheepskin and old fables.
I’ll admit I got siloed here for a while and couldn’t escape that thought process. However I didn’t blog because I knew I had more to learn. I’m going to break that process down now.
First fellow author on ViveEcosse, Allison Graham, reminded me quite quickly – but you know two women who have beaten the UK Government in Supreme Court. Allison is a very smart and canny operator – who even supported some of my musings on this online, but at the same time stopped me from becoming an ‘enemy of the people’ absolute nutter.
One is Gina Miller who actually won twice over Brexit. The second was Joanna Cherry KC MP who beat the UK Government over the constitution.
Secondly, the Dean of the Faculty of Advocate in Scotland, Roddy Dunlop KC, a man who I look to as a towering figure of decency in an otherwise shallow puddle of charlatans in our public figures – said it really is an impartial system and anything to suggest the contrary is wrong.
He’s an actual player on this pitch. He trusts the referee. Someone with a lot more knowledge and skin in the game, trusts the system. As it goes – apparently this is not just the majority view, but the only view from anyone in the legal profession. I believe the Justices have among the legal profession a status not enjoyed by any other profession, near complete satisfaction of process by all those who are involved.
Thirdly, hiding away beneath the oath to crown, is a second (better) oath.
I will do right to all manner of people after the laws and usages of this Realm, without fear or favour , affection or ill-will.https://www.supremecourt.uk/docs/guide-to-judicial-conduct.pdf
And after searching and reading. I have come to my conclusion. Despite my instincts feeling ‘oh wow no way’, that the evidence from previous cases from people I trust, on subjects that were embarrassing to the government, and monarch, on topics that went to the core of who we are as a people. The Supreme Court stands up. We are lucky to have them.
I look forward to Wednesday.