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Legal Matters August 2022

Justice/Legal Matters                                                                                      

Does Scotland have the power to pass the Independence Referendum Bill under the Scotland Act 1998?

            When Winnie Ewing reconvened the Scottish parliament in 1999, it is arguable she reconvened it with full powers, as Scotland had when it was adjourned.  The SNP has sought to intervene in the Supreme Court process to argue that self-determination is a central right under international law, and that therefore the Scotland Act should be interpreted widely enough to allow that self-determination.

            Joanna Cherry points out that the UK was in favour of Kosovo’s right to self-determination following its unilateral declaration of independence from the former Yugoslavia.  There the UK in a written submission declared that ‘international law did not prohibit secession or separation, or guarantee the unity of predecessor states against internal movements leading to separation or independence with the support of the peoples concerned’.

            So if a majority of the people of Scotland want it, the UK should not stand in her way.  Perhaps that is why they are now trying the next best thing by preventing a referendum on Scotland determining whether there is in fact a majority.  Decades ago Margaret Thatcher accepted that if a majority of Scots MPs were in favour of independence, that was enough to negotiate independence.

            It is to be hoped that the Supreme Court will accept the provisions of the Treaty of Union that Scotland’s distinct legal tradition is to remain unchanged (although the existence of the Supreme Court itself and prior to that the House of Lords may have already usurped that).  The English legal principle of the supremacy of the Crown in Parliament is an English legal tradition.  Conversely, in Scotland the people are supreme (not even Scotland’s parliament, in case they might go rogue! Imagine!)

            Eire is a precedent which can benefit Scotland, being the nation which on December 6th 1920 ended the Acts of the Parliament of Great Britain and Ireland which had created their union in 1800.  This had followed a majority of Sinn Fein MPs being elected to the British Parliament in December 1918.

            The UK government wants the Supreme Court to reject the case without hearing the arguments, on the grounds that the Scottish parliament has not yet passed the independence bill and it is therefore theoretical only.  The UK did not want the Supreme Court to admit the case at all.

            In 2012, before the first independence referendum, seven academics including three professors published a paper challenging the view that only Westminster could call an independence referendum.  Any referendum is advisory in the sense of needing legislation to enact the result. 

            But perhaps more important is the fact that the UK is fighting Scotland over this proves that Scotland is no longer in a voluntary union.

            Dr Nick McKerrell, senior law lecturer at Glasgow Caledonian University, is of the opinion that the Scottish government could use the International Court of Justice, which considered the Kosovo case, but it would be complicated. But Scotland would need to prove it is a state recognised by the IOJ to be heard.  He thinks it more likely that winning a ‘de facto’ referendum would pressurise the UK government to agree to indyref2.

Anti-terror legislation

            has been used to spy on the public over littering and school places.   Councils authorised 163 secret investigations into such things as vandalism, noise nuisance and other anti-social behaviour under the Regulation of Investigatory Powers (Scotland) Act (RIPSA) 2000, which permits camera surveillance, listening devices and undercover agents.  Dundee City Council used the legislation in 38 cases. Aberdeen used the powers to investigate the use of blue badges, East Lothian on nine occasions.

Facial Recognition Technology

            Police Scotland is considering the use of facial recognition technology to scan people’s faces in public without their knowledge or consent.  But the Metropolitan Police’s trial of the technology singled out only one person who was proved to be innocent, and they wrongly identified an overseas visitor as someone of interest.  The Met gave five minutes notice only of their deployment recently in London.

            Assistant Chief Constable Bex Smith says Police Scotland are developing a protocol to balance privacy and data protection with using the technology.

Police Registration Scheme

            Strangely, though, UK-wide police checks on Chinese and Russian nationals plus those of 42 other countries have been axed.  They need no longer give their details to police when they enter the UK. The scheme was axed secretly, even for nationals from states like Iraq, Iran and Syria where terror cells are hostile to the UK. 

‘Vilifying the UK’

            Rishi Sunak, though, wants to criminalise those who ‘vilify’ the UK by referrals to the anti-terror Prevent strategy, used to re-educate those at risk of radicalisation.  The remit could be wide enough to include those who speak disparagingly about the UK, independence supporters, Remainers and leftist journalists and lawyers.

            Not sure which is worse, Rishi criminalising Scotland or Liz ignoring us.

The Defamation and Malicious Publication (Scotland) Act 2021

            came into force at the start of August 2022.  It introduces a ‘serious harm’ test, that the defamatory material has had a substantial adverse impact on their reputation or finances.

            It also covers ‘secondary publishers’, that is, those who report or retweet the defamatory remarks.  From now on, the litigant would only be able to sue the original author, editor or publisher of the piece.

            At present, would-be litigants have three years to begin legal proceedings, but the new law reduces it to 12 months.

            Defences to defamation are that it is ‘substantially true’ or that it is an honest statement of opinion.  The new law adds a ‘public interest’ defence to cover the publication of information which they reasonably believed was in the public interest to report.

Julia Pannell                                    22 August 2022


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