Sovereignty series: Part 17.
Craig Murray’s account of the third sist of his Scottish judicial review of the proscription of Palestine Action is the encasement of Scots sovereignty and our standing law operating in real time, as witnessed and recorded in the Court of Session.
In January, Lord Young found that Craig Murray was entitled to bring the judicial review, on a stated principle: a Scot “is entitled to look to the courts of his place of residence”, “any decision in England could not found a plea of res judicata in Scotland”, and a Scottish court “would not be required by precedent to follow any decision of the High Court in England”. That is what Article XIX of the Treaty of Union guarantees, Scots law in a Scots court with no court in England set over it, stated correctly by a Scottish judge. Since then it has been sisted on 28 May on “comity” after the UK Government’s Advocate General came in person; refused recall on 14 July, when the UK Government argued an English Court of Appeal decision was already res judicata for Scotland; and re-sisted on 25 August until the UK Supreme Court in London decides the English appeal in November, with a whole-cause hearing by the Inner House refused for want of precedent. Over £200,000 raised from more than two thousand people has gone on procedure, and the merits have never been reached.
There is an admission by the UK Government, recorded at paragraph 6 of the 25 August interlocutor as its own position, that matters greatly in the case, and to Scots in particular. It was not argued; it was postulated, and offered in passing as a reason a sist would save court time:
It was likely that many of the issues raised by the petitioner would be finally resolved by the Supreme Court. If the appeal was successful before the Supreme Court, that would bring these proceedings to an end as the respondent accepts that the decision would be given effect in Scotland. If the appeal to the Supreme Court was unsuccessful, it was still likely that several of the major issues would have been resolved leaving any residual issues to be dealt with in these proceedings.
The English appeal noted in the previous paragraph is Huda Ammori’s, the co-founder of Palestine Action, who challenged the proscription in the High Court in London, lost in the Court of Appeal, and now takes it to the Supreme Court, where no Scottish argument will be heard. Craig Murray’s petition challenges the same proscription under Scots law in Scotland’s Court of Session, whilst the UK Government’s legal team has argued that the London decision will, upon judgment, also settle the Scots law case. The Court of Session in Edinburgh has so sisted Craig Murray’s petition to wait for the Supreme Court’s deliberation, and in doing so is once again carrying out what we call colonial deferral, in flagrant breach of Article XIX of the Treaty of Union.
The Treaty of Union kept two laws, Scots and English, and made no third. A case in the Court of Session is a Scots law case, and Scots law, on the bench’s own word, knows no unlimited parliamentary sovereignty; English law does. Every case with constitutional ramifications, direct or indirect, therefore asks the court one question: which law governs here?
Answer Scots law, and Westminster’s claimed authority is limited in Scotland; send the question to London, and the answer comes back in English law. The court has sent it every time.
That pattern has a name in our work: colonial deferral, the question pushed onto someone else’s timetable until the waiting is mistaken for the process. Its judicial mechanism is what the June audit called threshold declination: the court neither enforces Scots constitutional law on the merits nor strikes it down, but finds a reason to stop short, standing in MacCormick, non-justiciability in Gibson, prematurity in Keatings, and now a sist on powers no rule of court provides, so that the collision is never reached and Westminster’s doctrine stands by default. The refusal to reach the merits is not the absence of the mechanism; it is the mechanism. Craig Murray says it himself:
A Scottish court is not going to find the ban legal and proportionate. That would set up a political and constitutional conflict which the Scottish judiciary do not want. So they find ways to avoid the question.
Scotland’s devolved administration in Holyrood has had every paper in this case sent to it at the Lord Advocate’s request, and not as a mere courtesy: an office that asks for the papers is an office that can act on them. It could have intervened in the public interest, as the Lord Advocate routinely does; it could have argued that a proscription with direct consequences for devolved policing was imposed by the Home Secretary with nobody in Scotland consulted; it could have asserted what Lord Young himself had found, that Scots law sits beneath no English court, as the Treaty provides. It read every paper, did none of those things, and as head of the Crown Office added a terrorism connection to the charges against the golf-course sprayers. That is not a colonial Scottish office failing to act for Scotland; it is the office doing what the dying Westminster hegemony built it to do and presents it as: His Majesty’s Advocate, appointed by the King, sworn to the King, the Crown’s law officer in Scotland, seated in a devolved cabinet by the Scotland Act so that it reads as ours. Every one of those descriptions is Westminster’s. In Scots law the person the office is sworn to holds no title, and the office serves him anyway. A Tale of Two Masters (https://www.eoinjmartainn.scot/p/a-tale-of-two-masters-sovereign-scots) four months on, with the choice on paper this time.
There is an accurate description for the centuries-long failure by the Scottish judiciary to uphold Scots law’s own constitutional doctrine, and whether it is adopted or not, this is the reality of what Scotland’s law officials have practised against the will and sovereign rights of the Scottish people. The Court of Session is classified in our work as a Sovereign-External Colonial Enforcement Court (https://www.eoinjmartainn.scot/p/we-audited-scotlands-senior-court), the court of a sovereign people whose own bench named England’s parliamentary sovereignty alien to Scots law and enforces it anyway. Article XIX preserves Scots law and its courts in all time coming. The capture of Scots law came afterwards, and the Court of Session keeps it captured by never upholding Scots law, operating in plain view under the Structural Colonial Encasement Doctrine:
The Lord Advocate, seated in a Scottish minister’s chair but sworn under Westminster’s 1868 Act to a natural person, Charles Mountbatten-Windsor, who has never taken the Scottish coronation oath and holds no title in Scots law, holds the keys and turns them at the command of Westminster’s Crown-in-Parliament extraction system.
Craig Murray’s case is shining a light on both the cage we Scots are contained within and on the office of the Lord Advocate, the most senior law officer in Scotland, who acts as an enforcer for the Westminster hegemony against the standing validity of Scots law.
There is Scots law bhon bhunait and no other.
Eòin J Màrtainn