WHEN he put Scotland’s position on devolution issues during the famous Article 50 case back in early December 2016, Lord Advocate James Wolffe QC impressed all who saw his polished performance in the UK Supreme Court (UKSC). It was clear that he was respected by the Justices of the Court, even if in the end they found against him.
As he advanced Scotland’s arguments in front of the UKSC yesterday morning it was clear that the court’s seven justices were again giving a great deal of attention to everything he said – this was a solid case, well put.
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We will probably not know for a couple of months if Wolffe has won Scotland’s case to prove that the Scottish Parliament’s Continuity Bill is legal. It will take that long for a decision because the two days of hearings involved a great many complex issues including many minutes of discussion on what exactly constitutes a “modification”, along with references to “Imperial Tobacco” and “Christian Institute” that anyone coming into the Supreme Court without some prior knowledge might not have guessed were previous cases involving similar issues.
They might also have been forgiven for thinking that this was some sort of debating club as points were batted back and forth like a ping-pong match – indeed that is how one of the justices described the proceedings.
The problem for everyone involved is that they are not politicians. The justices and the four QCs who were the principal players are lawyers, not MPs, though Advocate General Lord Keen is a former chairman of the Scottish Conservatives.
As proceedings went on you could not help but feel that the politicians should be summoned from Westminster and Holyrood so they could be asked “What did you really mean when you passed those laws?”. For it seemed devilishly hard for even the very best legal brains to say what the EU Withdrawal Act and the Scottish Continuity Bill actually mean.
The job of judges and lawyers is to interpret and apply the laws as passed by both the Westminster and Scottish parliaments, so at times one felt sorry for them all because clearly there is a fundamental disagreement between the UK and Scottish governments, and also between the Westminster and Scottish parliaments over Brexit legislation. It was hard to avoid the conclusion that the whole case would have been unnecessary if the politicians had been talking and been prepared to compromise, and overwhelmingly the impasse is the fault of the Tory government by its failure to negotiate properly with the Scottish Government.
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In the end, hopefully most people will have taken away a simple message, particularly from the submissions made by Lord Keen, that Westminster rules and is determined to get its own way over Brexit, no matter how damaging that is to a Scotland which voted overwhelmingly, lest we forget, to remain in the European Union.
Above all, those 10 words we highlighted yesterday will come back to haunt Lord Keen and every Unionist: “The UK Parliament is sovereign, the Scottish Parliament is not.”
If there is a better reason for voting for independence, this correspondent has not heard it, and certainly not in the UK Supreme Court.
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