I extracted and summarised this from:
(https://www.craigmurray.org.uk/archives/2022/09/dorothy-bain-incompetent-or-corrupt/)
The dispute settled on a case that could allow the Scottish Parliament to legislate for another independence referendum.
UK law officers argued that the constitution was reserved for Westminster.
The Scottish Government argued that the referendum would be “advisory” and have no legal effect on the union.
In seeking to refer the question of the Scottish Parliament’s competence to hold a referendum to the Supreme Court, the Scottish Government’s Lord Advocate advanced arguments both for and against.
But her unconvincing submission omitted the most powerful and most obvious arguments.
The SNP were forced to intervene and present the case for the SNP replacing Bain’s pathetic unionist-biased drivel with a proper brief.
Quoting a rule of the court, which states that “any official body or non-governmental organisation seeking to make submissions in the public interest” may apply to intervene the SNP, (not the Scottish Government)presented its case to the court through Claire Mitchell, KC, who argued that – as a public body – it would be “fair, just and reasonable” for the SNP to make arguments to the Court.
Her submission raised genuine, powerful and internationally accepted legal arguments which Bain had omitted, including the party’s past manifesto commitments, which were made before the elections that it won. It also argued that the right to self-determination was “fundamental and inalienable”.
In his article of 30 July 2022. (https://www.craigmurray.org.uk/archives/2022/07/independence-justice-and-the-unionist-lord-advocate), he described Bain as “spectacularly wrong”, writing that:
“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.
An explanation: 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 secession would be predetermined by the very system of internal law called into 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 determined as a matter of international law. In most 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.
The SNP brief argued as Bain failed to argue, that:
“The right to self-determination is a fundamental and inalienable right, among the most fundamental of all rights.”
The SNP brief used many of the same sources in its argument – the UN judgement, the UK submission to the International Court of Justice on Kosovo, and the Supreme Court of Canada on Quebec – that Craig used in his article and has been using to argue the case for the last ten years.
The SNP brief and Claire Mitchell KC did not use the same arguments and even the same sources that Craig used because they were following him, or because he is especially brilliant. The fact is that any experienced diplomat and any public international lawyer would be expected to know exactly the law, arguments and cases which apply.
What Claire Mitchell KC produced for the SNP is precisely what any decent lawyer or any good diplomat would produce to support the case for Scotland’s self-determination.
So why did the Lord Advocate, Dorothy Bain, fail to produce it? Well, there are several possibilities. Dorothy Bain could be a truly, spectacularly, ignorant, stupid and incompetent lawyer. Or, she could have been cleverly and deliberately failing the Scottish Government on whose behalf she was supposed to be acting, which would be an act of dreadful professional wrongdoing. Or she could have been asked by Sturgeon to present a case to the Supreme Court that was sure to fail.
Questions arise. Namely:
The Lord Advocate is a ministerial position in Scotland, making it a political appointment. Why did Nicola Sturgeon appoint the unionist supporting Dorothy Bain to the position?
At the time of her appointment last year, it was already known that the certification of the Referendum Bill as legal would be a crucial task for the new Lord Advocate.
Nicola Sturgeon’s failure to appoint a nationalist-leaning person provides evidence that she was much more interested in identity politics than in Independence.
Bain’s mission is to guide the justice system through the under-noted changes, all of which are the highest priority on Sturgeon’s agenda:
1) Abolition of jury trials in sex assault cases
2) Establishment of misogyny as a hate crime and prosecution of sexist speech as a criminal offence
3) Reform of the Gender Recognition Act
4) Abolition of “Not proven” verdict and conforming the Scottish system to the English model
5) Continued clampdown prosecutions on “extremist” independence supporters and republicans, using a breach of the peace, harassment, threatening communication, contempt, etc
No mention of a referendum
The second question is how it happened that the SNP (not the government) came to decide to put in an amicus brief to the Supreme Court to try to make up for Bain’s glaring omissions.
There were reasons to be a little hopeful. Some worms seemed to be finally turning. Senior lawyers in the SNP were outraged at Bain’s fake attempt, and there was a near-open revolt among some Westminster MPs. At least 20 were outraged.
It is possibly not chance that the only senior SNP figure who put out the SNP’s, (not the government’s brief to the public was Joanna Cherry. It is still her pinned tweet.
The revolt caused angst in Casa Murrell. For once Sturgeon was forced to give some ground.
The compromise agreed upon was that Sturgeon accepted that the SNP could submit a brief arguing for the universal right of self-determination, but she only agreed on the condition that it was made explicit that the SNP was not arguing that Scotland could secede without Westminster’s permission. The SNP brief therefore, contained this disclaimer:
2.3. The Intervener emphasises that it is not advocating for a direct exercise or implementation of the right to self-determination in these proceedings.
Notes the “emphasises”. This is daft because it contradicts the entire meaning of the Kosovo and Chagos judgments which it goes on to quote. Nicola Sturgeon’s position remained however that Scotland could only become independent with Westminster’s agreement.
Sturgeon’s representative on earth is her election agent, constituency minder and long-term confidante Mhairi Hunter who recently spelt the position out very clearly indeed:
This gives an absolute and unequivocal veto to Westminster on Scottish independence and revealed Sturgeon’s “plebiscitary election” to be a total fraud.
It explained why Bain submitted her reference to the Supreme Court, dismissing Scotland’s international right to self-determination as of no legal force, and why the SNP brief undermined all the sources it quoted by stating it was not making a case for the right to implement self-determination.
The British Establishment will never willingly surrender Scotland’s massive resources. The leaders and Members of the SNP Government who believe Westminster has a veto are against Independence, whatever lies they spout.
caltonjock 