One of the key factors contributing to the decision of the court and Lady Dorrian to impose a previously unheard of draconian jail sentence on Craig Murray was that he was not, in the opinion of the court entitled to the same rights and privileges as a mainstream journalist.
Paragraph 4 of the judgement stated in disparaging terms:
“The applicant describes himself as a “journalist in new media”. Whatever that may involve, it is relevant to distinguish his position from that of the mainstream press, which is regulated, and subject to codes of practice and ethics in a way in which those writing as the applicant does are not. To the extent that the submissions for the applicant make comparisons with other press contempt’s, and the role of mainstream journalists, this is a factor which should be recognised.”
But online activity is not a devolved matter. It is reserved to the Westminster government who publicly announced 3 week before the judgement and comments of Lady Dorrian that Craig Murray was fully entitled in Law to consider himself to be a bona fide journalist.
Lady Dorrian’s judgement was predicated on a misinterpretation of her powers and that of the court.
This is the position of the Westminster government, published 3 weeks before lady Dorrian’s sentencing of Craig Murray.
Media minister John Whittingdale, speaking for the Department for Digital, Culture, Media and Sport (DCMS) said; “citizen journalists will have the same protections for their work as professional news providers adding, “we don’t want the legislation to lead to a ‘woke web’ where legitimate journalism is censored. That’s why we’ve built in safeguards so that content from news publishers will not be in scope of new laws, including content shared on social media platforms, and media providers will need to factor in the crucial role of journalism as well as freedom of expression in their moderation decisions. A vibrant and free media is essential to our democracy and our Bill will make sure vital public interest journalism can reach its audience without interference. But the response to the publication of my article has been disappointing. Does anyone really care about the future of Citizen journalists!!!!
8 Jun 2021: Opinion of the Court Delivered by Lady Dorrian, The Lord Justice Clerk in Petition and Complaint by Her Majesties Advocate Petitioner Against Craig Murray
Introduction:
One of the key factors contributing to the decision of the court to impose a previously unheard of draconian jail sentence on Craig Murray was that he was not, in the opinion of the court entitled to the same rights and privileges as a mainstream journalist.
Paragraph 4 of the judgement stated in disparaging terms:
“The applicant describes himself as a “journalist in new media”. Whatever that may involve, it is relevant to distinguish his position from that of the mainstream press, which is regulated, and subject to codes of practice and ethics in a way in which those writing as the applicant does are not. To the extent that the submissions for the applicant make comparisons with other press contempt’s, and the role of mainstream journalists, this is a factor which should be recognised.”
But only three weeks before the delivery of the opinion of the court in Edinburgh the UK government published proposals for the early introduction of legislation fully recognising the rights and privileges of “citizen journalists.”
21 May 2021: Online Safety Bill: New law will protect journalism from censorship
The media will have a statutory duty to safeguard UK users’ ability to access journalism under the new Online Safety Bill. The Government has made clear that content on news websites, including articles and user comments, is not in scope of the legislation.
Media minister John Whittingdale, speaking for the Department for Digital, Culture, Media and Sport (DCMS) said; “citizen journalists will have the same protections for their work as professional news providers adding, “we don’t want the legislation to lead to a ‘woke web’ where legitimate journalism is censored. That’s why we’ve built in safeguards so that content from news publishers will not be in scope of new laws, including content shared on social media platforms, and media providers will need to factor in the crucial role of journalism as well as freedom of expression in their moderation decisions. A vibrant and free media is essential to our democracy and our Bill will make sure vital public interest journalism can reach its audience without interference. Ofcom will be keeping a watchful eye to ensure media platforms remain open and impartial theatres of debate. The bill will force the removal and limit the spread harmful content including child sexual abuse, terrorist material and suicide content, plus user-generated online fraud such as romance scams and fake investment opportunities. Mis- and disinformation is also in scope.The legislation will also tackle racist abuse. The Publication of content deemed “democratically important”, meaning anything promoting or opposing government policy or a party ahead of an election, or campaigning on a live political issue will be protected.
The pronouncement of the court in Edinburgh is at variance with the views and intent of the higher authority of Westminster. The judgement is imperfect and the sentence should be reversed.
6 October 2021:The UK Supreme Court has determined that parts of two Scottish Government Bills were outside the legislative competence of the Scottish Parliament.
The judgment follows the UK Law Officers’ (the Advocate General for Scotland and the Attorney General) referral of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill and the European Charter of Local Self-Government (Incorporation) (Scotland) Bill.
Westminster Jurisdiction over appeals to the sovereign (1876- 2009)
The House of Lords had authority over appeals from the lower courts since all such matters were to the Sovereign-in-Parliament, and she was represented by the Lords. Commoners did not participate in judicial matters.
The House of Lords did not necessarily include them but would be attended by judges who gave their opinions when the Lords desired. They did not, however, have a vote in the House and the “Lords of Appeal in Ordinary,” commonly known as Law Lords, were appointed under the Appellate Jurisdiction Act 1876 to the House of Lords of the United Kingdom in order that it would be enabled to exercise its judicial functions including acting as the highest court of appeal for most domestic matters.
To be appointed a “Lord of Appeal in Ordinary “under the 1876 Act, an individual was required to have been a practicing barrister for a period of fifteen years or to have held a high judicial office (Lord Chancellor, before 2005 or judge of the Court of Appeal, High Court or Court of Session) for a period of two years.
Appointees were required to retire from judicial office at 70 or 75 years of age, although as peers under the style of Baron they continued to serve as members of the House of Lords in its legislative capacity for life.
Scottish appeals procedures to be absorbed by English law
In 2003 the Lord Chancellor, Lord Falconer brought forward the “Constitutional Reform Bill” which contained his proposals for reforming the powers of the Lord Chancellor and the dismantling of his office. The argument promoted in support of his initiative was that it would formally separate the powers of law makers from the judicial authorities. A major part of the reformation would be the repeal of existing legislation replacing it with a “Supreme Court.”
The Lords said there was no need for a “Supreme Court” and they were also discontented about a lack of consultation of the proposed changes to remove the Law Lords from the upper house to a new court and the absence of public debate. They also gave warning that the legislation, as drafted threatened the independence of Scots law which was guaranteed in perpetuity by the, “Claim of Right.” The “New Labour” government was defeated and the matter was remitted to the “Constitutional Affairs Committee” for discussion and amendment.
The committee interviewed a number of eminent figures from the political and judicial system, including Scotland’s most senior judge Lord Cullen and an amended bill was finally introduced into law in 2009. From that time there has been an amount of controversy in regard to the operation of the court and the matter of the Scots “Claim of Right” that pre-dates the 1707 “Act of Union” which dictates that the “Independence of Scots law” is guaranteed, in perpetuity and remains extant.
Afternote: On 4 July 2018, the House of Commons officially endorsed the principles of the Claim of Right, agreeing that the people of Scotland are sovereign and that they have the right to determine the best form of government for Scotland’s needs.
Dec 2003: Lord Cullen, Lord Justice General of Scotland and Lord President of the Court of Session addresses the Constitutional Affairs Committee
The Chair: We are particularly pleased to have the head of judiciary in Scotland.
Lord Cullen: we have met before when we were carrying out our inquiry into the judicial appointments in Scotland before the Government announced its plans for England and Wales.
The Chair: What we thought we might do is start by looking at the Supreme Court issue and initially looking at it in general terms before coming on to those aspects which are particular to Scotland.
Lord Cullen: It all depends what kind of Supreme Court we are talking about. We seem to be talking about one which is simply taking over lock, stock and barrel the existing functions of the Appellate Committee and perhaps also the Judicial Committee of the Privy Council, so what is happening is to happen somewhere else in a different atmosphere and I do not quite see how that takes you any further. There may be opportunities possibly for making pronouncements which would be of use to the whole of the United Kingdom, but one has to remember that the existing civil jurisdiction as far as Scotland is concerned is that the Appellate Committee functions as a Scottish court (with a wall, as it were) between it and its functioning as an English court.
Q: Could I address my comments to you, Lord Cullen. I understand from your evidence that you are not wildly enthusiastic about the proposed changes?
Lord Cullen: That is right.
Q: Many of us were astounded that the Government could come up with proposals to reorganize our court of final appeals without consulting the outgoing Lord Chancellor, the incoming Lord Chancellor, the present members of the Judicial Committee of the Lords, and I think we would do better to discuss this in terms of a court of final appeal and leave the title to be chosen afterwards. Referring to perceptions. What would be the minimal changes that might meet the perception point?
Lord Cullen: I am not sure what you mean by “minimal changes”.
Q: Largely that the Lord Chancellor should not be able to sit as a law lord. The minimal change is the Lord Chancellor saying “I will not sit as a law lord” rather than throwing the whole system in the air. People argue that having the law lords meeting in the House of Lords is somehow the executive interfering, forgetting of course that Parliament is not the executive and that any arrangements are likely to be more expensive. Could they be cheaper than the present arrangements?
Lord Cullen: I cannot say because I do not sit as a Lord of Appeal but my impression is that it would be cheaper to leave things as they are than to create something free-standing outside, and there also is the advantage at the moment, as I understand it,that the Appellate Committee is funded through the House of Lords whereas if it is to be exported to some other place it would then be funded by the Department of Constitutional Affairs, hence you get a closer association or greater association with the executive which did not previously exist. Now that itself raises a problem of independence.
The Chair: Turning, Lord Cullen, to the Scottish aspects of this, are the Government’s proposals compatible with the Act of Union, Article 19 and the “Claim of Right” and, if not, what would have to be done to them to make them compatible?
Article 19 of the Act of Union states “… that the Court of Justiciary do also after the Union, and notwithstanding thereof, remain in all time coming within Scotland, as it is now constituted by the Laws of that Kingdom, and with the same Authority and Privileges as before the Union, subject nevertheless to such Regulations as shall be made by the Parliament of Great Britain, and without Prejudice of other Rights of Justiciary…”
Lord Cullen: I venture this matter in my response really in order to make the point that this aspect ought to be considered by the Government.
Before the “Act of Union” there is the “Claim of Right”, which was a Scottish provision at the time when the monarchy was returning to Scotland in 1689 and there was then a declaration by the Scottish Parliament as to the right of subjects to protest for remede of law to the King and Parliament and that is the ancestor, so far as Scotland is concerned, of the hearing of civil appeals from the Court of Session to the House of Lords.
The “Act of Union” was silent on the question of appeal from the “Court of Session” or, indeed, the “High Court of Justiciary” but it was later, much later, interpreted in such a way as to indicate that the “Court of Session” and its decisions should be subject to review whereas the “High Court”, the criminal court, would sit its decisions to be regarded as final and conclusive, so what you have, firstly, is an interpretation of the “Act of Union.”
The second point is that, until now, it has been recognized that there are some situations, not easy to define, where certain elements in our constitution may be unalterable – that is a possible view. It arises from time to time, most recently in the case involving Lord Gray’s Motion where certain members of the “Committee for Privileges” reserved their view on that matter. So however strange it may seem there is an argument that Parliament might not be able to alter or undo certain elements of a constitutional nature. That is a sketch of the argument: whether it is good or not I do not propose to advance, but simply say it is there to be considered.
The Chair: Are you proposing any way in which the Government’s proposals might be modified to avoid collision with that argument?
Lord Cullen: I am inclined to think that it may very well be that so far as civil appeals are concerned there is not a problem, but it is simply something that ought to be looked at. Therefore my answer to that is probably that no alteration is, in fact, required.
The Chair: Do you agree that legislative competence so far as any changes to leave to appeal and things of that kind are concerned does not lie with Westminster under the devolution settlement but with the Scottish Parliament?
Lord Cullen: That is quite a difficult matter. If you look at the Scotland Act you will find that what is reserved is the continued existence of the Court of Session and the High Court of Justiciary. The way that the Scotland Act is constructed certain matters are specifically reserved: the rest are not, and therefore it appears on the face of it that matters other than the continued existence of these courts is a matter for the Scottish Parliament. Nobody is entirely clear as to that being the case but that seems to be the position, in which case there seems to be a role here for the Scottish Parliament. Now I would hope that the matter was not, so to speak, nodded through in Scotland but given serious consideration, but that is the position, as I understand it.
The Chair: Lord Hope expressed the view that the Scottish Parliament would need time to deal with this matter before it proceeded at Westminster?
Lord Cullen: I would agree with that and the consultation paper, whereas it makes clear what the executive’s attitude is and we have seen the executive’s response since then, so far as I know as yet there has not been a considered discussion in the Scottish Parliament.
The Chair: There is a phrase which I think you may have challenged already which the Government use in respect of constitutional issues where they say that the establishment of the new court “accordingly gives us the opportunity to restore a single apex to the United Kingdom’s judicial system where all the constitutional issues can be considered”.
That is in the consultation paper. Is it your view that, leaving aside the devolution issues, there ever was or should be a single apex which combines the judicial systems of England and Scotland?
Lord Cullen: I do not think that is correct. The position until now is that the Appellate Committee functions sometimes as an English court and sometimes as a Scottish court, and I say that because what is binding in England is not binding in Scotland.
You have two completely separate jurisdictions so that whatever decision the House of Lords reaches in regard to a civil matter it does not bind in Scotland, and vice versa, so you really have two apices rather than one apex and, if the position is that that is to be taken over by the Supreme Court, it will have those two high points, whereas the paper tends to talk as if this is the opportunity for the United Kingdom court. Well, I say that is obscuring the point: that you have two separate jurisdictions each with its own head happening to be administered under one device, namely the Appellate Committee. That is what we have: it is a result of the separate growth of two legal systems, and it is preserved, of course, by the Act of Union.
Oct 2009: The Introduction of the UK Supreme Court
A new United Kingdom Supreme Court was formed separating the judicial function from Parliament (those who make the law from those who interpret it in courts). It assumed jurisdiction on points of law for all civil law cases in the UK and all criminal cases in England, Wales and Northern Ireland.
The Lords of Appeal in Ordinary (the Law Lords) are the first justices of the 12-member Supreme Court and are disqualified from sitting or voting in the House of Lords. When they retire from the Supreme Court they can return to the House of Lords as full Members but newly-appointed Justices of the Supreme Court will not have seats in the House of Lords.
Apr 2015: Lord Carloway condemns the UK Supreme Court
The lord Justice Clerk attacked the UK Supreme Court, calling it remote from the realities of Scots law and a “depressing influence” on the legal system in Scotland. His remarks came in his speech, in Edinburgh, to the: “Conference of Commonwealth Law Reform Agencies.”
He said: “The UK Supreme Court, which has hitherto sat only in London, may be deemed to exercise greater autonomy in the selection of topics for the reform of Scots civil law than the Scottish Law Commission itself. While the criminal law court hierarchy in Scotland ends with the High Court of Justiciary, the Supreme Court can deal with particular questions relating to devolution and arising from civil or criminal proceedings. In some respects, the oversight of Scots Law from a position that is relatively remote, far removed from the practical realities of operating the Scottish legal system and of Scots society as a whole, is apt to have a depressing influence on the efforts of those operating positively within the jurisdiction.”
Nov 2015: UK Supreme Court overrules Scottish judges on two human rights cases
The UK Supreme Court over-ruled Scotland’s highest appeal court in two important human rights cases. In both, judgements passed in Edinburgh were unanimously overruled by a five-judge panel sitting in London on fundamental legal issues. Their decisions raise the possibility of another judicial and political cross-border row. Senior political figures such as First Minister Alex Salmond and Justice Secretary Kenny MacAskill have already raised concerns about what they see as the Supreme Court interfering in Scottish legal affairs. The Supreme Court bench in both cases was headed by Lord Hope, deputy president of the London-based court and former Lord President of the Court of Session in Edinburgh who has previously spoken out against the “corrosive anti-English sentiment” in Scotland’s courts, describing it as an obstacle to legal progress, and has been the subject of biting criticism by Alex Salmond, who accused Lord Hope of allowing “some of the vilest people on the planet” to win compensation from the taxpayer.
Nov 2016: Scotland’s application to overturn Brexit ruling triggers court battle
Scotland is to apply to the Supreme Court to be allowed to table a legal challenge at the Court against the UK Government as it tries to overturn a Brexit court ruling. The attempt is to make sure MPs and Scotland’s parliament have a say on triggering Article 50. First Minister Nicola Sturgeon said “it simply cannot be right” that European Union membership “can be removed by the UK Government on the say-so of a Prime Minister without parliamentary debate, scrutiny or consent”. She added: “legislation should be required at Westminster and the consent of the Scottish Parliament should be sought before Article 50 is triggered. Let me be clear – I recognize and respect the right of England and Wales to leave the European Union. This is not an attempt to veto that process. But the democratic wishes of the people of Scotland and the national Parliament of Scotland cannot be brushed aside as if they do not matter.”
Dec 2018: Brexit Legislation – UK Supreme Court Upholds Scottish Parliament – But its ruling is thwarted by the Westminster Government’s Introduction of counter legislation, (with Royal Assent) before the Supreme Court judged the Westminster government appeal.
Preamble:
Brexit legislation was drafted as an alternative to Westminster’s EU Withdrawal Bill, which MSPs refused to give their consent to following a row over how powers currently exercised from Brussels will be used after Brexit. Holyrood Presiding Officer Ken Macintosh wrote an official memo saying the bill was “not within the legislative competence of the parliament”. His assertions were denied by the Scottish government’s legal advisers. But the delay (as designed) provided time for UK law officers to apply to the Supreme Court for legal certainty about whether the Holyrood vote was valid. A two-day hearing was then held in London in July, with the UK government arguing that the bill should be struck down.
“On 4 July 2018, the House of Commons officially endorsed the principles of the “Claim of Right”, agreeing that the people of Scotland are sovereign and that they have the right to determine the best form of government for Scotland’s needs.”
Lord Keen Advocate General argued the case for the Westminster government. The Supreme Court judgement
Lady Hale said the judges had unanimously rejected all but one section of the UK government’s arguments. She said “the whole of the Scottish bill would not be outside the legislative competence of the Scottish Parliament”, but that one section – relating to MSPs having to give consent for UK Brexit laws – was not within Holyrood’s remit. The judges explained in their ruling that changes had been made to the UK legislation, (before the appeal hearing) adding a special schedule of protected legislation which MSPs could not modify , returning to Westminster authority over 21 previously devolved provisions. This meant that the bill was entirely competent when it was passed by MSPs in March 2018.
The ruling meant that the EU Withdrawal Act remained the basis on which Scotland’s statutes will be prepared for Brexit. MSPs could potentially bring the continuity bill back for reconsideration at Holyrood, but only provided action was taken in the areas highlighted by the Supreme Court.
The introduction of a Scottish parliament in 1999, with devolved powers (forced on the UK government by the EC) should have been a game changer.
For the first time in 300 years Scots were to have a forum allowing discussion of matters local to Scotland over which their elected representatives would be able to bring about change.
But the established political parties simply rubber stamped the wishes of the Westminster parliament on the electorate.
Labour and Liberal Democratic coalition governments proved to be incompetent at all levels and voters transferred their support to the Scottish National Party (SNP) who provided progressive, efficient and enlightened government.
In 2010 the SNP were rewarded for their achievements gaining a stunning victory taking over government with an overall majority (turning the Westminster gerrymandered electoral system on its head). It was very successful, even when hamstrung with the forced implementation of destructive financial austerity measures foisted on Scotland by Westminster The party was rewarded with a return to government in 2015.
The Scottish Voter
In the period up to 2005 voting was largely tribal and class driven. Workers backed Labour whilst the rural communities, white collar workers and upper classes supported the Tory party.
But the failure of the Scottish Parliament to deliver real change for the benefit of Scots and illegal wars in Serbia, Iraq, Afghanistan, Libya and Syria coupled with the rapid expansion of the internet challenged the old ways and political party’s experienced the impact of declining voter bases as vast amounts of new information, previously denied the public became wide spread through internet driven social networking.
From 2014 enlightened Scots became increasingly more independent thinking and a new class of voter was born. One which demanded from politicians information and policies relevant to their individual needs.
Tory Electioneering Strategy
The “My-Personality” app was launched in 2007. In excess of six million people completed the questionnaire, allowing psychometric centres to access their Facebook profiles. This permitted an algorithm trawl through the persons likes and social media posts. The information gathered allowed the creation of statistical models which used “digital-foot-printing” to predict personality types. The Tory Party contracted analysts who dipped into the large database of anonymized information, and targeted the Scottish electorate.
Mar 2017: The Petition Against a Second Scottish Independence Referendum
A petition was launched on the internet by the Tory’s stating;
“We in Scotland are fed up of persecution by the SNP leader who is solely intent on getting independence at any cost. As a result, Scotland is suffering hugely. The majority of Scottish voters wish to remain in the British union, despite Nicola Sturgeon’s latest demands for a Scottish referendum, according to the latest polling from YouGov.”
The “data mining ploy” petition had been created and added to the internet by the Tory media team. And the tactic worked since it succeeded in raising the public profile of the possibility of another Independence referendum, which (at the time) had not been given mention by anyone other than the Tory Party.
Apr 2017: Use of Gathered Data – Analysis of Petition Outcome
Aware of the Tory tactic I compiled an analysis using publicly issued data and produced a predictive 2017 election outcome.
Electorate totals were included and a percentage signatory total was established for each constituency. From that I used the mean figure of 3.75% to forward project the outcome of an Independence referendum.
The figures suggested that from an electorate of 4,021,203 the outcome of another referendum would result in a: 48.00% “Yes” vote in favour of independence with 52.00% preferring to remain with the Union.
This was important information which if used wisely would allow effective forward planning electioneering strategy.
Edinburgh, Aberdeen, East Renfrewshire and East Dunbartonshire recorded higher than average figures favouring remaining with the Union. Other regions were less fixed.
My Predictive 2017 General Election Forecast
The General Election in Scotland will not be a re-run of the 2015 General Election and the landslide victory achieved by the SNP cannot realistically be achieved.
My analysis suggests 25 seats might change hands with the Tory Party being the main benefactor.
Significant SNP financial resources and additional teams of activists will need to be deployed in force in the under-noted constituencies otherwise they may be lost.
This group of seats are marginals – Risk decreases as the % number drops:
71749: Edinburgh West, Michelle Thomson MP : 4388-6.12% Lost
69982: East Renfrewshire, Kirsten Oswald MP: 4241-6.06% Lost
66966: East Dunbartonshire, John Nicolson MP: 3977-5.94% Lost
65846: Edinburgh South, Ian Murray MP: 3579-5.44% Labour hold
73445: West Abdn, Stuart Blair Donaldson MP: 3961-5.40% Lost
80978: Edinburgh North & Leith, Deidre Brock MP: 4280-5.29% Held
66208: Paisley & Renfrew, Gavin Newlands MP: 3158-4.77% Held
68875: Argyll & Bute, Brendan O’Hara MP: 3277-4.75% Held
62003: North East Fife, Stephen Gethins MP: 2937-4.74% Held
67236: Stirling, Steven Paterson MP: 3175-4.72% Lost
77379: Ochil & Perth, Tasmina-A-Sheikh MP: 3645-4.71% Lost
79393: Gordon, Rt. Hon Alex Salmond MP: 3711-4.68% Lost
68056: Aberdeen South, Callum McCaig MP: 3618-4.65% Lost
79481: East Lothian, George Kerevan MP: 3676-4.63% Lost
72178: Edinburgh S-West, Joanna Cherry QC: 3283-4.55% ) Held
72447: Perth & N-Perthshire, Pete Wishart MP: 3033-4.19% Held
71685: Moray, Rt. Hon Angus Robertson MP: 2995-4.18% Lost
78037: Lanark & Hamilton-E, Angela Crawley MP: 3272-4.19% Held
68483: Dumfries, Clydesdale, David Mundell MP:2816-4.11% Held
74179: Berwick, Roxburgh, Selkirk: Calum Kerr MP: 3026-4.08% Lost
86955: Linlithgow, East Falkirk, Martyn Day MP:3570-4.11% Held
68609: Banff & Buchan, Dr Eilidh Whiteford MP: 2772-4.04% Lost
73445: W. Abdn, Stuart-B-Donaldson MP: 3961-5.40% Lost
71685: Moray, Rt. Hon Angus Robertson MP: 2995-4.18% Lost
68056: Aberdeen South, Callum McCaig MP: 3618-4.65% Lost
The 2017 General Election and the resurgence of the Tory Party in Scotland
The 2017 General Election in Scotland first exposed Scottish voters to “data mining”. A new form of politics imported from the USA, providing tools and profiling information allowing Tory candidates to communicate personally with their prospective constituents.
The benefits were astounding. The Tories gained a stunning result, increasing their MP’s from 1 to 13 in total.
Pollsters were flabbergasted at the turnaround in the voting since the SNP appeared to be invulnerable.
But Tory candidates had been well briefed about the individual targets within their constituencies. The new voting strategy used predictive data models which identified, engaged and persuaded swing voters to turnout.
This was achieved through the use of internet, phone and personal surveys combined with many other data sets, created by teams of contracted data scientists, psychologists and political consultants allowing the campaign to map the Scottish electorate based on ideology, demographics, religious beliefs, strongly held opinions on key issues e.g. Independence, the Orange Lodge, Celtic, Rangers, The SNP and or political personalities.
The information gathered provided Tory campaign strategists with a predictive analysis based on thousands of data points on just about every voter in Scotland.
From that teams of political consultants and psychologists, hired by the Party directed the campaign and candidates on what and how to say it to selected groups of voters.
Other voter targeting, included use of Facebook adverts, one to one scripted phone calls and provision of the content of messages for door-to-door canvassers ensuring consistent communication with voters on any issue.
What won the day for the Tory party in 2017 was that they utilised “data mining” to gain a comprehensive understanding of the Scottish electorate and then used every communication aid available facilitating discussions with voters about matters important to them as individuals.
Throughout the campaign the Tory tactic was to constantly broadcast the “no new referendum” message stressing that this was an important major difference between the Tory and any other candidates firmly imprinting this in the electorate’s minds.
In contrast the SNP campaign lacked inspiration. It was poorly directed (he starved “at risk” constituencies of financial and other resources) and failed to get the SNP voters out.
Information is power and an incompetent Peter Murrell, the SNP strategist allowed the Tory Party to outwit him.
He failed and had he been the chief strategist of any political party other than the SNP he would have been given his marching orders. Incredulously the First Minister awarded him a massive pay rise and an extended contract.
Craig Murray, faced a contempt of court hearing after posting information on his blog in advance of Mr Salmond’s trial. The contempt proceedings at the High Court, Edinburgh, before Lord Justice Clerk, Lady Dorrian, heard Alex Prentice QC, for the Crown argue that information Craig posted on his blog in January 2020 could lead to jigsaw identification of the women involved, breaching a contempt of court order, creating a substantial risk of prejudicing the trial.
John Scott QC, defending, argued that at the date of the publication there was no court order in place and Craig had gone to great lengths to keep the complainants identities hidden. He added that the Crown had contacted Craig over the article prior to the start of Alex Salmond’s trial, but did not demand he take it down. Craig viewed the contact as “inappropriate censorship, as opposed to welcome advice”.
Lady Dorrian questioned why the case against Craig had been brought after Mr Salmond’s trial. She said: “Both articles being addressed were published in advance of the trial. If the Crown was of the view these articles created a substantial risk, it seems strange the Crown did not take action at that time.”
Alex Prentice QC, said:
“I accept that that is factually correct and a matter that the court can take into account while assessing the allegation. However I still believe there was a risk of identification. In my submission, the respondent argued that the publication was limited to those who followed his blog on social media and not the wider public, but one must consider it could be potentially much more distressing for someone in a working environment to work out the identity of a person in circumstances such as those that occurred in this case. In any situation, there will be some people who know the complainers – members of immediate family, work colleagues. In any case, there will be members of the community who have some pieces of the jigsaw. If it’s people who have particular knowledge, perhaps knowledge imparted by the complainers themselves, there may be a category of people who have bits of the jigsaw and finding out – for example – that an allegation came from a particular place… that will then narrow the field. It requires greater care for anyone seeking to report responsibly but it is not by any means straightforward. It might be possible for good faith errors to be made there. Jigsaws come with varying complexities. A 500-piece puzzle is a very different proposition to a 12-piece puzzle of Peppa Pig. While some information in the public domain may be pieced together by those determined to do so, the risk may be relatively remote. There is no agreed path for the court to find there was a risk of jigsaw identification. There is no safe path through it. What is not accepted is that it is extensive information here. And what is accepted and agreed is there was not enough to safely do that and to conclude beyond a reasonable doubt that this was contempt.”
John Scott QC, replied that the interpretation the content of the article by Mr Prentice QC, was all encompassing and unreasonable, saying: “If the Crown argument is correct, one wonders how anything would be reported at all. Nothing at all could really be published.
Comment:
If the Crown had been truly concerned that the information published by Craig before the trial carried a real risk of jigsaw identification of the complainants, breaching a contempt of court order and creating a substantial risk of prejudicing the trial, it had every right to defer the start of the trial until such time as the contempt of court allegation against Craig had been heard and resolved. That it did not do so suggested the pursuit of Craig was driven by factors other than stated. Maybe because the Crown lost the case?? Additionally in his rambling statement Alex Prentice QC, for the Crown alluded to the fact that there were many members of the wider community who were aware of the names of the complainants, either through personal contact with family members, friends, work colleagues, the press and bloggers on social media.
A written judgement issued at a much delayed date decided Craig was guilty.
Afternote
There is an answer but I am not sure just what it is. In my view the Crown erred by permitting the trial to start when, by it’s own admission it had concerns that Craig had facilitated a jigsaw identification spread with articles he posted many months before the trial start date. It is also noteworthy that the contempt of court charge should not have been levied against Craig using the January 2020 blogs since Lady Dorrian had not yet pronounced on the matter of jigsaw naming. She alluded to this with her questioning of the Crown’s motives.
Citizen journalism is the platform that provides solutions to the mistrust the public has towards the corporate controlled news media and government when discrepancies arise from government and other establishment bodies statements and actions.
These civic minded individuals should be afforded the same protection from harassment and punitive punishment afforded to so-called professional journalists always provided articles posted to their blogs conform to the accepted “Principles of Journalism”.
The Principles of Journalism
In 1997, a committee of journalists, concerned about failing standards, began a national conversation with the public and news people to identify and clarify the principles underlying journalism. After four years of research the group released a “Statement of Shared Purpose” that identified nine principles.
Statement of Purpose:
“The central purpose of journalism is to provide citizens with accurate and reliable information they need to function in a free society. This encompasses myriad roles helping define community, creating common language and common knowledge, identifying a community’s goals, heroes and villains, and pushing people beyond complacency. This purpose also involves other requirements, such as being entertaining, serving as watchdog and offering voice to the voiceless.”
The Nine Principles
1. Journalism’s first obligation is to the truth
Democracy depends on citizens having reliable, accurate facts put in a meaningful context. Journalism does not pursue truth in an absolute or philosophical sense, but it can and must pursue it in a practical sense. This “journalistic truth” is a process that begins with the professional discipline of assembling and verifying facts. Then journalists try to convey a fair and reliable account of their meaning, valid for now, subject to further investigation.
Journalists should be as transparent as possible about sources and methods, so audiences can make their own assessment of the information. Even in a world of expanding voices, accuracy is the foundation upon which everything else is built: context, interpretation, comment, criticism, analysis and debate. The truth, over time, emerges from this forum. As citizens encounter an ever-greater flow of data, they have more need not less for identifiable sources dedicated to verifying that information and putting it in context.
2. Loyalty is to the citizens
While news organizations answer to many constituencies, including advertisers and shareholders, the journalists in those organizations must maintain allegiance to citizens and the larger public interest above any other if they are to provide the news without fear or favour. This commitment to citizens first is the basis of a news organization’s credibility; the implied covenant that tells the audience the coverage is not slanted for friends or advertisers.
Commitment to citizens also means journalism should present a representative picture of all constituent groups in society. Ignoring certain citizens has the effect of disenfranchising them. The theory underlying the modern news industry has been the belief that credibility builds a broad and loyal audience, and that economic success follows in turn. In that regard, the business people in a news organization also must nurture, not exploit their allegiance to the audience ahead of other considerations.
3. The discipline of verification
When the concept of objectivity originally evolved, it did not imply that journalists were free of bias. It called, rather, for a consistent method of testing information – a transparent approach to evidence – precisely so that personal and cultural biases would not undermine the accuracy of their work. The method is objective; not the journalist refined. While journalism has developed various techniques for determining facts, for instance, it has done less to develop a system for testing the reliability of journalistic interpretation.
4. Practitioners must maintain a independence from those they cover
Independence of spirit and mind, rather than neutrality, is the principle journalists must keep in focus. But while editors and commentators are not neutral, the source of their credibility is still their accuracy, intellectual fairness and ability to inform, not their devotion to a certain group or outcome. Any tendency to stray into arrogance, elitism, isolation or nihilism must be avoided.
5. It should serve as an independent monitor of power
Journalism has an unusual capacity to serve as watchdog over those whose power and position most affect citizens. It is a rampart against despotism. An independent press is essential in a democracy. The judiciary have affirmed this and citizens rely on it.
6. It must provide a forum for public criticism and compromise
Discussion serves society best when it is informed by facts rather than prejudice and supposition. It should strive to fairly represent the varied viewpoints and interests in society, and to place them in context rather than highlight only the conflicting fringes of debate. Accuracy and truthfulness require framers of the public discussion not to neglect the points of common ground where problem solving occurs.
7. Reporting should be interesting and relevant
Journalists must continually ask themselves what information has most value to citizens and in what form. While journalism should reach beyond such topics as government and public safety, a journalism overwhelmed by trivia and false significance ultimately engenders a trivial society.
8. Keep the news comprehensive and proportional
Keeping news in proportion and not leaving important things out are the cornerstones of truthfulness. Inflating events for sensation, neglecting others, stereotyping or being disproportionately negative all make for less reliable reporting.
9. Practitioners should exercise their personal conscience
Every journalist needs to have a personal sense of ethics and responsibility, a moral compass. They must be willing, if fairness and accuracy require, to voice differences with others. The news media should nurture independence by encouraging individuals to speak their minds.
Further reading: The Elements of Journalism: Tom Rosenstiel and Bill Kovach.
The Alex Salmond debacle provided evidence of serious shortcomings in the SNP government led by Nicola Sturgeon and there are growing concerns her government has become distracted by the pursuit of controversial political doctrine with result that it has lost its way in the efficient provision of Health, Education, policing and local government.
Worryingly boundaries between politicians, the Scottish Government, the Scottish civil service and the Law are being compromised, placing the health and well being of the people of Scotland increasingly at risk of political and social disorder due to the imposition of draconian laws and policies changing the accepted norms of society without consultation or approval of the electorate.
The Lord Advocate
Currently held by James Wolffe QC, the Lord Advocate is the senior Scottish law officer and principal legal adviser to the Scottish government and represents it in civil proceedings. The post also brings with it the role of leader of the Crown Office and Procurator Fiscal Office, whose remit is to ensure an impartial criminal prosecution system and proficient representation of the public. The dual role requires him to be scrupulously independent as a prosecutor yet politically accountable as a legal adviser.
Absolute impartiality in thought and practice is not something that can be given over to “lip service” and there is increasing public disquiet over Wolffe’s perceived lack of impartiality in the handling of the Sturgeon Government’s badly botched civil Service led investigation and the criminal trial of Alex Salmond which, to the chagrin of Sturgeon resulted in his acquittal of all charges. Indeed she was so enraged that not long after the verdict was announced she used the cover of a coronavirus press conference to express her sympathy for the women who had made false allegations of harassment against him. Her actions also displayed a disgraceful lack of respect for the judicial system led by her Lord Advocate given that Alex Salmond had been acquitted of all charges.
Alex Salmond, when First Minster, to his credit, recognised the potential for difficulty and decided the attendance of the Lord Advocate at cabinet would be by invitation only. A measure used sparingly. But under Nicola Sturgeon’s government Wolffe has attended a majority of cabinet meetings.
Sturgeon has three options:
Do nothing and risk legal and political challenges to her authority.
Revert to the policy advocated by Alex Salmond and greatly reduce his attendance at cabinet.
Formally separate the dual roles. This would require legislation which would be very time consuming.
Afternote: There are two matters of public concern yet to be addressed and Wollfe needs to prove his legal judgement is not decided by the SNP government. First there is the unlawful release to the Daily Record of details of the Civil Service investigation of Alex Salmond. Civil Service officers completed an investigation and concluded that the service was not at fault. The investigation was a political “red herring” designed to close the matter down and the suspect most likely is not a Civil Servant. Wollfe needs to get the police involved and charge the person concerned with malfeasance in a public office. This one will run and run until it is resolved to the satisfaction of the public. Secondly. The investigation of harassment allegations against Alex Salmond was an expensive “cock up” from start to finish and the senior civil servant management team should be brought to account. Justice would be best served by dismissing the Permanent Secretary, Leslie Evans. Sturgeon instead “cocked a snoop” at the Scottish public by giving Evans a whacking great pay rise as a reward for poor performance. Senior manager colleagues involved in the travesty with Evans, should be downgraded.
Jurisdiction over appeals to the sovereign (1876- 2009)
The House of Lords had authority over appeals from the lower courts since all such matters were to the Sovereign-in-Parliament, and she was represented by the Lords. Commoners did not participate in judicial matters.
The House of Lords did not necessarily include them but would be attended by judges who gave their opinions when the Lords desired. They did not, however, have a vote in the House and the “Lords of Appeal in Ordinary,” commonly known as Law Lords, were appointed under the Appellate Jurisdiction Act 1876 to the House of Lords of the United Kingdom in order that it would be enabled to exercise its judicial functions including acting as the highest court of appeal for most domestic matters.
To be appointed a “Lord of Appeal in Ordinary “under the 1876 Act, an individual was required to have been a practicing barrister for a period of fifteen years or to have held a high judicial office (Lord Chancellor, before 2005 or judge of the Court of Appeal, High Court or Court of Session) for a period of two years.
Appointees were required to retire from judicial office at 70 or 75 years of age, although as peers under the style of Baron they continued to serve as members of the House of Lords in its legislative capacity for life.
Scottish appeals procedures to be absorbed by English law
In 2003 the Lord Chancellor, Lord Falconer brought forward the “Constitutional Reform Bill” which contained his proposals for reforming the powers of the Lord Chancellor and the dismantling of his office. The argument promoted in support of his initiative was that it would formally separate the powers of law makers from the judicial authorities. A major part of the reformation would be the repeal of existing legislation replacing it with a “Supreme Court.”
The Lords said there was no need for a “Supreme Court” and they were also discontented about a lack of consultation of the proposed changes to remove the Law Lords from the upper house to a new court and the absence of public debate. They also gave warning that the legislation, as drafted threatened the independence of Scots law which was guaranteed in perpetuity by the, “Claim of Right.” The “New Labour” government was defeated and the matter was remitted to the “Constitutional Affairs Committee” for discussion and amendment.
The committee interviewed a number of eminent figures from the political and judicial system, including Scotland’s most senior judge Lord Cullen and an amended bill was finally introduced into law in 2009. From that time there has been an amount of controversy in regard to the operation of the court and the matter of the Scots “Claim of Right” that pre-dates the 1707 “Act of Union” which dictates that the “Independence of Scots law” is guaranteed, in perpetuity and remains extant.
Afternote: On 4 July 2018, the House of Commons officially endorsed the principles of the Claim of Right, agreeing that the people of Scotland are sovereign and that they have the right to determine the best form of government for Scotland’s needs.
Dec 2003: Lord Cullen, Lord Justice General of Scotland and Lord President of the Court of Session addresses the Constitutional Affairs Committee
The Chair: We are particularly pleased to have the head of judiciary in Scotland.
Lord Cullen: we have met before when we were carrying out our inquiry into the judicial appointments in Scotland before the Government announced its plans for England and Wales.
The Chair: What we thought we might do is start by looking at the Supreme Court issue and initially looking at it in general terms before coming on to those aspects which are particular to Scotland.
Lord Cullen: It all depends what kind of Supreme Court we are talking about. We seem to be talking about one which is simply taking over lock, stock and barrel the existing functions of the Appellate Committee and perhaps also the Judicial Committee of the Privy Council, so what is happening is to happen somewhere else in a different atmosphere and I do not quite see how that takes you any further. There may be opportunities possibly for making pronouncements which would be of use to the whole of the United Kingdom, but one has to remember that the existing civil jurisdiction as far as Scotland is concerned is that the Appellate Committee functions as a Scottish court (with a wall, as it were) between it and its functioning as an English court.
Q: Could I address my comments to you, Lord Cullen. I understand from your evidence that you are not wildly enthusiastic about the proposed changes?
Lord Cullen: That is right.
Q: Many of us were astounded that the Government could come up with proposals to reorganize our court of final appeals without consulting the outgoing Lord Chancellor, the incoming Lord Chancellor, the present members of the Judicial Committee of the Lords, and I think we would do better to discuss this in terms of a court of final appeal and leave the title to be chosen afterwards. Referring to perceptions. What would be the minimal changes that might meet the perception point?
Lord Cullen: I am not sure what you mean by “minimal changes”.
Q: Largely that the Lord Chancellor should not be able to sit as a law lord. The minimal change is the Lord Chancellor saying “I will not sit as a law lord” rather than throwing the whole system in the air. People argue that having the law lords meeting in the House of Lords is somehow the executive interfering, forgetting of course that Parliament is not the executive and that any arrangements are likely to be more expensive. Could they be cheaper than the present arrangements?
Lord Cullen: I cannot say because I do not sit as a Lord of Appeal but my impression is that it would be cheaper to leave things as they are than to create something free-standing outside, and there also is the advantage at the moment, as I understand it,that the Appellate Committee is funded through the House of Lords whereas if it is to be exported to some other place it would then be funded by the Department of Constitutional Affairs, hence you get a closer association or greater association with the executive which did not previously exist. Now that itself raises a problem of independence.
The Chair: Turning, Lord Cullen, to the Scottish aspects of this, are the Government’s proposals compatible with the Act of Union, Article 19 and the “Claim of Right” and, if not, what would have to be done to them to make them compatible?
Article 19 of the Act of Union states “… that the Court of Justiciary do also after the Union, and notwithstanding thereof, remain in all time coming within Scotland, as it is now constituted by the Laws of that Kingdom, and with the same Authority and Privileges as before the Union, subject nevertheless to such Regulations as shall be made by the Parliament of Great Britain, and without Prejudice of other Rights of Justiciary…”
Lord Cullen: I venture this matter in my response really in order to make the point that this aspect ought to be considered by the Government.
Before the “Act of Union” there is the “Claim of Right”, which was a Scottish provision at the time when the monarchy was returning to Scotland in 1689 and there was then a declaration by the Scottish Parliament as to the right of subjects to protest for remede of law to the King and Parliament and that is the ancestor, so far as Scotland is concerned, of the hearing of civil appeals from the Court of Session to the House of Lords.
The “Act of Union” was silent on the question of appeal from the “Court of Session” or, indeed, the “High Court of Justiciary” but it was later, much later, interpreted in such a way as to indicate that the “Court of Session” and its decisions should be subject to review whereas the “High Court”, the criminal court, would sit its decisions to be regarded as final and conclusive, so what you have, firstly, is an interpretation of the “Act of Union.”
The second point is that, until now, it has been recognized that there are some situations, not easy to define, where certain elements in our constitution may be unalterable – that is a possible view. It arises from time to time, most recently in the case involving Lord Gray’s Motion where certain members of the “Committee for Privileges” reserved their view on that matter. So however strange it may seem there is an argument that Parliament might not be able to alter or undo certain elements of a constitutional nature. That is a sketch of the argument: whether it is good or not I do not propose to advance, but simply say it is there to be considered.
The Chair: Are you proposing any way in which the Government’s proposals might be modified to avoid collision with that argument?
Lord Cullen: I am inclined to think that it may very well be that so far as civil appeals are concerned there is not a problem, but it is simply something that ought to be looked at. Therefore my answer to that is probably that no alteration is, in fact, required.
The Chair: Do you agree that legislative competence so far as any changes to leave to appeal and things of that kind are concerned does not lie with Westminster under the devolution settlement but with the Scottish Parliament?
Lord Cullen: That is quite a difficult matter. If you look at the Scotland Act you will find that what is reserved is the continued existence of the Court of Session and the High Court of Justiciary. The way that the Scotland Act is constructed certain matters are specifically reserved: the rest are not, and therefore it appears on the face of it that matters other than the continued existence of these courts is a matter for the Scottish Parliament. Nobody is entirely clear as to that being the case but that seems to be the position, in which case there seems to be a role here for the Scottish Parliament. Now I would hope that the matter was not, so to speak, nodded through in Scotland but given serious consideration, but that is the position, as I understand it.
The Chair: Lord Hope expressed the view that the Scottish Parliament would need time to deal with this matter before it proceeded at Westminster?
Lord Cullen: I would agree with that and the consultation paper, whereas it makes clear what the executive’s attitude is and we have seen the executive’s response since then, so far as I know as yet there has not been a considered discussion in the Scottish Parliament.
The Chair: There is a phrase which I think you may have challenged already which the Government use in respect of constitutional issues where they say that the establishment of the new court “accordingly gives us the opportunity to restore a single apex to the United Kingdom’s judicial system where all the constitutional issues can be considered”.
That is in the consultation paper. Is it your view that, leaving aside the devolution issues, there ever was or should be a single apex which combines the judicial systems of England and Scotland?
Lord Cullen: I do not think that is correct. The position until now is that the Appellate Committee functions sometimes as an English court and sometimes as a Scottish court, and I say that because what is binding in England is not binding in Scotland.
You have two completely separate jurisdictions so that whatever decision the House of Lords reaches in regard to a civil matter it does not bind in Scotland, and vice versa, so you really have two apices rather than one apex and, if the position is that that is to be taken over by the Supreme Court, it will have those two high points, whereas the paper tends to talk as if this is the opportunity for the United Kingdom court. Well, I say that is obscuring the point: that you have two separate jurisdictions each with its own head happening to be administered under one device, namely the Appellate Committee. That is what we have: it is a result of the separate growth of two legal systems, and it is preserved, of course, by the Act of Union.
Oct 2009: The Introduction of the UK Supreme Court
A new United Kingdom Supreme Court was formed separating the judicial function from Parliament (those who make the law from those who interpret it in courts). It assumed jurisdiction on points of law for all civil law cases in the UK and all criminal cases in England, Wales and Northern Ireland.
The Lords of Appeal in Ordinary (the Law Lords) are the first justices of the 12-member Supreme Court and are disqualified from sitting or voting in the House of Lords. When they retire from the Supreme Court they can return to the House of Lords as full Members but newly-appointed Justices of the Supreme Court will not have seats in the House of Lords.
Apr 2015: Lord Carloway condemns the UK Supreme Court
The lord Justice Clerk attacked the UK Supreme Court, calling it remote from the realities of Scots law and a “depressing influence” on the legal system in Scotland. His remarks came in his speech, in Edinburgh, to the: “Conference of Commonwealth Law Reform Agencies.”
He said: “The UK Supreme Court, which has hitherto sat only in London, may be deemed to exercise greater autonomy in the selection of topics for the reform of Scots civil law than the Scottish Law Commission itself. While the criminal law court hierarchy in Scotland ends with the High Court of Justiciary, the Supreme Court can deal with particular questions relating to devolution and arising from civil or criminal proceedings. In some respects, the oversight of Scots Law from a position that is relatively remote, far removed from the practical realities of operating the Scottish legal system and of Scots society as a whole, is apt to have a depressing influence on the efforts of those operating positively within the jurisdiction.”
Nov 2015: UK Supreme Court overrules Scottish judges on two human rights cases
The UK Supreme Court over-ruled Scotland’s highest appeal court in two important human rights cases. In both, judgements passed in Edinburgh were unanimously overruled by a five-judge panel sitting in London on fundamental legal issues. Their decisions raise the possibility of another judicial and political cross-border row. Senior political figures such as First Minister Alex Salmond and Justice Secretary Kenny MacAskill have already raised concerns about what they see as the Supreme Court interfering in Scottish legal affairs. The Supreme Court bench in both cases was headed by Lord Hope, deputy president of the London-based court and former Lord President of the Court of Session in Edinburgh who has previously spoken out against the “corrosive anti-English sentiment” in Scotland’s courts, describing it as an obstacle to legal progress, and has been the subject of biting criticism by Alex Salmond, who accused Lord Hope of allowing “some of the vilest people on the planet” to win compensation from the taxpayer.
Nov 2016: Scotland’s application to overturn Brexit ruling triggers court battle
Scotland is to apply to the Supreme Court to be allowed to table a legal challenge at the Court against the UK Government as it tries to overturn a Brexit court ruling. The attempt is to make sure MPs and Scotland’s parliament have a say on triggering Article 50. First Minister Nicola Sturgeon said “it simply cannot be right” that European Union membership “can be removed by the UK Government on the say-so of a Prime Minister without parliamentary debate, scrutiny or consent”. She added: “legislation should be required at Westminster and the consent of the Scottish Parliament should be sought before Article 50 is triggered. Let me be clear – I recognize and respect the right of England and Wales to leave the European Union. This is not an attempt to veto that process. But the democratic wishes of the people of Scotland and the national Parliament of Scotland cannot be brushed aside as if they do not matter.”
Dec 2018: Brexit Legislation – UK Supreme Court Upholds Scottish Parliament – But its ruling is thwarted by the Westminster Government’s Introduction of counter legislation, (with Royal Assent) before the Supreme Court judged the Westminster government appeal.
Preamble:
Brexit legislation was drafted as an alternative to Westminster’s EU Withdrawal Bill, which MSPs refused to give their consent to following a row over how powers currently exercised from Brussels will be used after Brexit. Holyrood Presiding Officer Ken Macintosh wrote an official memo saying the bill was “not within the legislative competence of the parliament”. His assertions were denied by the Scottish government’s legal advisers. But the delay (as designed) provided time for UK law officers to apply to the Supreme Court for legal certainty about whether the Holyrood vote was valid. A two-day hearing was then held in London in July, with the UK government arguing that the bill should be struck down.
“On 4 July 2018, the House of Commons officially endorsed the principles of the “Claim of Right”, agreeing that the people of Scotland are sovereign and that they have the right to determine the best form of government for Scotland’s needs.”
Lord Keen Advocate General argued the case for the Westminster government. The Supreme Court judgement
Lady Hale said the judges had unanimously rejected all but one section of the UK government’s arguments. She said “the whole of the Scottish bill would not be outside the legislative competence of the Scottish Parliament”, but that one section – relating to MSPs having to give consent for UK Brexit laws – was not within Holyrood’s remit. The judges explained in their ruling that changes had been made to the UK legislation, (before the appeal hearing) adding a special schedule of protected legislation which MSPs could not modify , returning to Westminster authority over 21 previously devolved provisions. This meant that the bill was entirely competent when it was passed by MSPs in March 2018.
The ruling meant that the EU Withdrawal Act remained the basis on which Scotland’s statutes will be prepared for Brexit. MSPs could potentially bring the continuity bill back for reconsideration at Holyrood, but only provided action was taken in the areas highlighted by the Supreme Court.
The affair brought Scots of all political persuasions together under the “Patriot” banner to protest against Whig government abuse and disrespect of Scottish legal and political autonomy.
It began in the spring of 1736 when two habitual burglars were done for breaking and entering and robbing the Collector of Customs building in Kirkcaldy. A crime for which they were sentenced to Hang. While awaiting their execution one of the prisoners aided by the other escaped custody.
The exploits of the condemned men brought support from the public who considered the sentence to be unjust. But authorities ignored their pleas and went ahead with the execution.
The public execution in the Grassmarket was attended by a large crowd who were vocal in their protests and when the deed was done a few of them started to throw stones at the hangman and his helpers. This was not an unusual occurrence and usually passed without further incident. But on the occasion, there was an immediate and brutal response when city guard leader, Captain John Porteous fired into the crowd and ordered his men to do the same. When the shooting stopped there were eight dead and many more seriously wounded.
The public protested vehemently and Porteous was charged with murder, tried, found guilty and sentenced to death by hanging in the same Grassmarket where he and his men had committed the atrocities.
The unsavory incident would have been closed had the execution been carried out, but Whig peers petitioned the Queen Regent Caroline to suspend the sentence so that appeals could be gathered and presented to the courts.
She duly consented to their request and ordered the Scottish Lords of Justiciary to suspend the sentence for at least 6 weeks.
Edinburgh citizens, sorely aggrieved that they were being denied justice took matters into their own hands, dragged Porteous from the Tollbooth and hanged him in the Grassmarket.
News of the “riot” reached the Westminster government who immediately ordered General Wade and his English forces to Edinburgh to assist in the “speedy and exemplary punishment’ of the riots “ringleaders and abetters”.
A second large body of English soldiers was moved into Edinburgh castle to patrol the area and conduct “stop and search” patrols and enforce curfews.
The Westminster Whigs also formed the view that the Edinburgh city authorities were at fault. Opinions further strengthened in the weeks that followed when no-one had been brought to account.
General Wade complained that: “the magistrates had conspired to allow the murder of Porteous and aided their escape from justice”.
His unfounded assertions provided the catalyst the Whig government had been waiting for and it speedily introduced a new Scottish act, the “Bill of Pains and Penalties” and used it against Edinburgh, with the charge that the City authorities had “insulted the royal prerogative”.
Edinburgh’s Lord Provost was arrested and many “Royal” privileges were removed adversely affecting traders and the city was placed in purgatory.
Edinburgh citizens were angry at the actions of the government and questioned the legality of the English moves against the city. The question most raised was, “what right had been bestowed on Westminster that gave it the authority to punish Edinburgh for a crime involving Scottish citizens, that had taken place on Scottish soil?
Scottish politicians set their petty partisan quarrels aside and protests were raised at Westminster strongly condemning the Whig government for its, “contradiction to the express Articles of Union”.
But their protests fell upon deaf ears. Edinburgh was made to pay a heavy fine to the exchequer and every church minister in Scotland was forced to read out a proclamation apologizing for the behaviour of Edinburgh citizens.
The Porteous affair was one of many incidents in which the Walpole government protected the military from its excesses, imposed “Martial Law” and committed acts of public violence against the people of Scotland. What was particularly galling was the unequal treatment of Scottish protestors. Rioting in English cities had never been subject to military occupation and martial law.
The Whig victory was pyrrhic since it confirmed what many Scots knew in their hearts that Scotland was not an equal partner in a Union of countries but a colony of England.
The indignities inflicted by Walpole’s Whigs drove many Scots to seek the overturn the British and to invite the return of the Stuart’s to Scotland, but people in the Central belt and lowland parts of the country preferred to remain with the Union hoping for the removal of Walpole’s Whigs and a return to the ideals of the Acts of Union. Wishful thinking indeed!!!
Craig Murray, faced a contempt of court hearing after posting information on his blog in advance of Mr Salmond’s trial. The contempt proceedings at the High Court, Edinburgh, before Lord Justice Clerk, Lady Dorrian, heard Alex Prentice QC, for the Crown argue that information Craig posted on his blog in January 2020 could lead to jigsaw identification of the women involved, breaching a contempt of court order, creating a substantial risk of prejudicing the trial.
John Scott QC, defending, argued that at the date of the publication there was no court order in place and Craig had gone to great lengths to keep the complainants identities hidden. He added that the Crown had contacted Craig over the article prior to the start of Alex Salmond’s trial, but did not demand he take it down. Craig viewed the contact as “inappropriate censorship, as opposed to welcome advice”.
Lady Dorrian questioned why the case against Craig had been brought after Mr Salmond’s trial. She said: “Both articles being addressed were published in advance of the trial. If the Crown was of the view these articles created a substantial risk, it seems strange the Crown did not take action at that time.”
Alex Prentice QC, said:
“I accept that that is factually correct and a matter that the court can take into account while assessing the allegation. However I still believe there was a risk of identification. In my submission, the respondent argued that the publication was limited to those who followed his blog on social media and not the wider public, but one must consider it could be potentially much more distressing for someone in a working environment to work out the identity of a person in circumstances such as those that occurred in this case. In any situation, there will be some people who know the complainers – members of immediate family, work colleagues. In any case, there will be members of the community who have some pieces of the jigsaw. If it’s people who have particular knowledge, perhaps knowledge imparted by the complainers themselves, there may be a category of people who have bits of the jigsaw and finding out – for example – that an allegation came from a particular place… that will then narrow the field. It requires greater care for anyone seeking to report responsibly but it is not by any means straightforward. It might be possible for good faith errors to be made there. Jigsaws come with varying complexities. A 500-piece puzzle is a very different proposition to a 12-piece puzzle of Peppa Pig. While some information in the public domain may be pieced together by those determined to do so, the risk may be relatively remote. There is no agreed path for the court to find there was a risk of jigsaw identification. There is no safe path through it. What is not accepted is that it is extensive information here. And what is accepted and agreed is there was not enough to safely do that and to conclude beyond a reasonable doubt that this was contempt.”
John Scott QC, replied that the interpretation the content of the article by Mr Prentice QC, was all encompassing and unreasonable, saying: “If the Crown argument is correct, one wonders how anything would be reported at all. Nothing at all could really be published.
Comment:
If the Crown had been truly concerned that the information published by Craig before the trial carried a real risk of jigsaw identification of the complainants, breaching a contempt of court order and creating a substantial risk of prejudicing the trial, it had every right to defer the start of the trial until such time as the contempt of court allegation against Craig had been heard and resolved. That it did not do so suggested the pursuit of Craig was driven by factors other than stated. Maybe because the Crown lost the case?? Additionally in his rambling statement Alex Prentice QC, for the Crown alluded to the fact that there were many members of the wider community who were aware of the names of the complainants, either through personal contact with family members, friends, work colleagues, the press and bloggers on social media.
A written judgement issued at a much delayed date decided Craig was guilty.
Afternote
There is an answer but I am not sure just what it is. In my view the Crown erred by permitting the trial to start when, by it’s own admission it had concerns that Craig had facilitated a jigsaw identification spread with articles he posted many months before the trial start date. It is also noteworthy that the contempt of court charge should not have been levied against Craig using the January 2020 blogs since Lady Dorrian had not yet pronounced on the matter of jigsaw naming. She alluded to this with her questioning of the Crown’s motives.
caltonjock 