Read the story here. Advertise at Before It's News here.
Profile image
Story Views
Last Hour:
Last 24 Hours:

Nations Unhappily Held Together

% of readers think this story is Fact. Add your two cents.

Former Ambassador, Human Rights Activist

Media commentary on today’s appeals before the Supreme Court misses entirely the main point – that the highest courts of England and Wales, Scotland and Northern Ireland may each have been legally correct in their differing judgements, because each was judging according to a different legal system. I shall here leave Northern Ireland aside through my personal ignorance of its legal system, for which I apologise.

The legal systems of England and of Scotland have equal status in the Act of Union. The Supreme Court is required to decide on the Scottish (Joanna Cherry) case under Scots law, and required to decide on the English (Gina Miller) case under English law. The Scottish legal tradition has always emphasised the sovereignty of the people, a tradition that can be traced back through the Claim of Right to the Declaration of Arbroath, which four centuries before Hobbes and Locke made the contractual relationship between people and King explicit:

Yet if he should give up what he has begun, and agree to make us or our kingdom subject to the King of England or the English, we should exert ourselves at once to drive him out as our enemy and a subverter of his own rights and ours, and make some other man who was well able to defend us our King; for, as long as but a hundred of us remain alive, never will we on any conditions be brought under English rule.

It is the last phrase which stirs the blood and is most often repeated; but it is the first part, the claim to a contractual relationship between sovereign and subject, which was way in advance of any other recorded thinking in medieval Europe.

In its appeal today against the Scottish decision the UK government makes an astonishing admission of the Westminster view of Scotland. Notwithstanding the very specific provision of the Act of Union that the legal systems of Scotland and England are equal, the view taken by Boris Johnson’s government in their appeal is that “it would be most astonishingly inconvenient if, notwithstanding that England and Scotland have been united since 1707” the Scottish courts should have the temerity to question the Westminster parliament. There can seldom have been a clearer statement that No. 10 sees Scotland as having de facto colonial status.

Joanna Cherry responds to this point in her pleadings:

The answer to the appellant’s complaint that “it would be most astonishingly inconvenient if, notwithstanding that England and Scotland have been united since 1707” the UK Executive might be subject to greater scrutiny and more readily called to account before court based on the north bank of the Tweed as compared to those on its south bank is simply this: don’t be persuaded by complaints of inconvenient for the Executive that it is even open to this court in the exercise of its appellate jurisdiction to lower Scots law standards, in this regard, to that which is regarded as properly justiciable before the courts of England and Wales. Let English law, if it is deficient in this regard, be brought up to the standards by which the Executive is called to account under Scots law. That is what is required of this court, acting as a constitutional court for the Union as a whole.

In summary, against the foregoing background, the respondents reiterate as follows:
This court must take full and proper account of the Scottish constitutional tradition in deciding this appeal. There is no necessary correlation between Scots law and English law on the question of what prerogative powers the Executive may claim and how they
might lawfully be exercised.

Esto there be any difference between Scots law’s and English law’s respective understandings on the limitations which the law imposes on the Executive’s power to prorogue Parliament (which is not known and not admitted), that constitutional tradition within these islands and this Union polity which is more
limiting of the manner in which the Executive may exercise this power to prorogue Parliament is to be preferred, the better to ensure the Executive’s democratic and legal accountability for the use of this power and to prevent its abuse of that power in an unlawful attempt to shift the proper constitutional balance of power among the three pillars of State and allow it unconstitutionally to dominate and so govern without due and proper regard to, Parliament.

Cherry argues that the Scottish legal tradition should be preferred because holding the executive to account is a good thing for the UK as a whole. But this does not really address the question (which to be fair she could not as she is only a party to the Scottish case) that the English judgement in the Miller case might have been correct in English law.

I may seem strange that the same judges decide the Scottish case under Scottish law and the English case under English law, when in each case the panel will have members who trained and practised their whole lives in a different legal system. But that is precisely how British colonialism works. Exactly those same judges, in exactly the same building, but with the different title of “The Judicial Committee of the Privy Council” may hear appeals from British colonies under the legal system of that colony. So for example they may resolve a land dispute under the customary law on landholdings of the British Virgin Isles. It is a remarkable hangover from formal Empire that they remain the Supreme Court of even some independent Commonwealth countries.

The dilemma facing the Supreme Court today is Scotland’s de facto colonial status. This will necessitate a fudge. Despite the submission of Joanna Cherry, if the Court were to find that the English judgement were correct under English law and the Scottish judgement were correct under Scots law, the court would be most unlikely to prefer one over the other – in contravention of the Act of Union. My strong expectation therefore is that the Court will avoid this dilemma by a judgement that either the English judges or the Scottish judges were wrong under the terms their own law. That is to day they will find the English judges incorrectly interpreted English law or the Scottish judges incorrectly interpreted Scots law. They will thus avoid the dilemma of preferring one over the other.

I should be most surprised if the Establishment did not claim the Scottish judges did not understand Scots law, and prefer England and the Executive of Boris Johnson, because that is the Establishment. But Brexit and populism have made life much more difficult to predict.

The Supreme Court’s decisions will have a profound effect. Either the power of the judiciary will be reigned back in Scotland and there will be a major boost in the power of the Executive, thus changing Scottish legal tradition. Or the power of the Executive will be reigned back in England and there will be a major boost to judicial activism, changing English legal tradition. In either case, either England or Scotland will have the right to complain that its legal tradition is not being treated by the UK Supreme Court with the respect it is due under the Treaty of Union. Which is yet a further example of the increasing impossibility of continuing the unhappy and unequal union of countries now so politically and culturally different as England and Scotland.


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:

Recurring Donations


The post Nations Unhappily Held Together appeared first on Craig Murray.

Before It’s News® is a community of individuals who report on what’s going on around them, from all around the world.

Anyone can join.
Anyone can contribute.
Anyone can become informed about their world.

"United We Stand" Click Here To Create Your Personal Citizen Journalist Account Today, Be Sure To Invite Your Friends.

Please Help Support BeforeitsNews by trying our Natural Health Products below!

Order by Phone at 888-809-8385 or online at

Order by Phone at 888-809-8385 or online at

Get our Free Ebook, "Suppressed Health Secrets"  with  Natural Cures THEY don't want you to know!

Humic & Fulvic Trace Minerals Complex - Nature's most important supplement! Vivid Dreams again!

Ultimate Clinical Potency Curcumin - Natural pain relief, reduce inflammation and so much more.

MitoCopper - Bioavailable Copper destroys pathogens and gives you more energy. (See Blood Video)
Oxy Powder - Natural Colon Cleanser!  Cleans out toxic buildup with oxygen! 
Organic Hemp Extract (CBD) - Full Spectrum high CBD (3300mg) hemp extract eases stiff joints, relieves stress and more!
Nascent Iodine - Promotes detoxification, mental focus and thyroid health.
Smart Meter Cover -  Reduces Smart Meter radiation by 96%!  (See Video)

Immusist Beverage Concentrate - Proprietary blend, formulated to reduce inflammation while hydrating and oxygenating the cells.

Report abuse


    Your Comments
    Question   Razz  Sad   Evil  Exclaim  Smile  Redface  Biggrin  Surprised  Eek   Confused   Cool  LOL   Mad   Twisted  Rolleyes   Wink  Idea  Arrow  Neutral  Cry   Mr. Green

    Load more ...




    Email this story
    Email this story

    If you really want to ban this commenter, please write down the reason:

    If you really want to disable all recommended stories, click on OK button. After that, you will be redirect to your options page.