tag:blogger.com,1999:blog-1638916042737526171.post9088768035603886983..comments2024-03-28T07:16:39.621+00:00Comments on Lallands Peat Worrier: Salmond's self-defeating legal defence?Lallands Peat Worrierhttp://www.blogger.com/profile/18276270498204697708noreply@blogger.comBlogger12125tag:blogger.com,1999:blog-1638916042737526171.post-4161920544053144602011-07-18T15:04:23.601+01:002011-07-18T15:04:23.601+01:00Lallands,
Your point about it being the Judicial ...Lallands,<br /><br />Your point about it being the Judicial Committee of the Privy Council that takes, on occassion, to sunnier climes calls to mind some previous incomplete speculations on my part that many of the constitutional difficulties, fuss and what-have-yous could be avoided if the Judicial Committe of the Privy Council resummed its role of providing a watchful eye over matters of human rights.<br /><br />It is my understanding that prior to the Constitutional Reform Act (2005) the Judicial Committe of the Privy Council was the court in which devolution issues were heard ( although strictly speaking the actual transfer of responsibility to the Supreme Court didn't take place until 2009).<br />Again it is my understanding that in many matters ( eg Ecclesiastical, Admiralty and Chivalry) the J C of Privy Council did act as with a "final word on the matter", however in other areas it is a matter of sapientary authority only and the report of the court, while no doubt persuasive, is advisory, has no legal weight and is not binding on anybody or on any other courts; for its findings to have legal weight it would require a new law ( or an ammendment to an exsiting law) by a competent legislature and legislative process. A proper legislative process might include Orders in Council laid before the Scottish Parliament or Uk Parliament, however orders in council are insufficient to overturn the decision of a court, ( that requires an act of parliament). In effect what this meant was that the Privy Council couldn't reverse a decision of the High Court of Justiciary ( and it would require not just Orders in Council to do so but an Act of Parliament).<br /><br />However, since the Constitutional Reform Act the Supreme Court deals with these matters relating to Scottish devolution. Rather than act in an advisory role as the privy council did the Supreme Court has assumed to itself something beyond that advisory role, something even beyond a hortatory role, but that of a superior court. It it not just this "superior court" bit that is ruffling silk and rubbing ermine the wrong way?muddypawshttps://www.blogger.com/profile/02705787157023015996noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-82281070057714832652011-07-18T10:39:52.826+01:002011-07-18T10:39:52.826+01:00David
How come so many Scot Nats are unable to sp...David<br /><br />How come so many Scot Nats are unable to spell James Connolly's name correctly?<br /><br />Is there something Freudian about it?hector mcglashannoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-61165473513874344032011-07-18T07:50:56.601+01:002011-07-18T07:50:56.601+01:00Maybe time to revisit the French Revolution and re...Maybe time to revisit the French Revolution and reprise it in Scotland with updated consequences - compliant with best practice international law - for our home-grown Girondists and "let them eat cake" elements both within "The Chipping Norton 'Set'" down the Cotswalds/Oxforfshire way as well as our own comprador wannabes who seek to mimic and join them?<br /><br />A dash of Jock Jacobinism in tandem with our own Sans Culottes animated by the highest principles of internationally enshrined human rights (and responsibilities) might just be the ticket to tober up the bewigged ones and their political minders - for the financial oligarchs - up.<br /><br />I believe John MacLean, Robespierre, Connelly, Burns, Lenin et al would have been "up for that" - more than supportive. Yet here we, collectively, are some epochs later: The Butcher of Cumberland did not thole our smash; nor did Fletcher of Saltoun thole the Hanoverian snash of the Butcher's ilk, for the gloves came off when they had to.<br /><br />Legalism - like its fellow bedwetter - economism (and other reductionisms) simply serve to dilute fundamental<br />matters of principle and human justice for one and all regardless.<br /><br />Perhaps it is time for the dark arts practitioners in "the law" and "finance" and "politics" along with their military-industrial-complex bouncers to be driven into the light and tried before the global public? <br /><br />Precedents seem to be cumulatively abounding in this respect along with the increasing tremors of nerves amidst the global establishment's "elites" at this potentially impending scenario finding flesh (Pinochet may have slithered out from under the gavel - with the assists of the English legal establishment - but fewer are now allowed to do so and face judgement). Anyway,...<br /><br />Liberty. Fraternity. EqualityDavidhttps://www.blogger.com/profile/02975588480290026016noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-92220406333626106142011-07-17T20:38:19.504+01:002011-07-17T20:38:19.504+01:00Surely the solution lies in a more competent and c...Surely the solution lies in a more competent and comprehensive Scottish appeal system?Crinkly & Ragged Arsed Philosophershttps://www.blogger.com/profile/08902364411241935656noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-91200140777348541992011-07-17T16:40:45.383+01:002011-07-17T16:40:45.383+01:00hector mclashan,
Just as I suspect Justices of th...<b>hector mclashan,</b><br /><br />Just as I suspect Justices of the UK Supreme Court won't be eager to hie-tail themselves up to Scotland, I'm sure that the Senators of the College of Justice in Edinburgh are quite comfortable with hearing appeals from their official seat - and wouldn't be terrifically thrilled by the idea of holding their hearings up in Stornoway Sheriff Court!Lallands Peat Worrierhttps://www.blogger.com/profile/07238432265194046726noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-62317376323153732242011-07-17T16:37:19.083+01:002011-07-17T16:37:19.083+01:00Andrew BOD,
In answer to your questions (1) if Sc...<b>Andrew BOD,</b><br /><br />In answer to your questions (1) if Scotland was independent, our own Courts would become supreme. The European Court of Human Rights is a tribunal established by international law - and differs significantly from a domestic supreme court, in terms of the remedies and orders it can make - as well as the nature of its adjudication. The ECtHR is concerned with what European human rights law requires - domestic supreme courts are concerned with the substance of domestic laws. I would anticipate that an independent Scotland would remain part of the European Convention system. That would mean we'd have our own Scots judge on the Court - and individuals could lodge applications with the institution once they had exhausted domestic remedies, complaining that the Scottish authorities had violated their rights. <br /><br />(2) Yes. It would clearly be a mechanism to limit the number of Scots cases the UKSC could hear.<br /><br />(3) Clearly, the UKSC <i>could</i> move about. In terms of Scots cases, however, I just expect it wont. No doubt the symbolism is partly why McCluskey et al are mooting it here.Lallands Peat Worrierhttps://www.blogger.com/profile/07238432265194046726noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-39568157828141190212011-07-17T16:30:08.986+01:002011-07-17T16:30:08.986+01:00muddypaws,
I believe most of the former Commonwea...<b>muddypaws,</b><br /><br />I believe most of the former Commonwealth countries have now cut their appeals to the Judicial Committee of the Privy Council - although Lord Hope enjoys <a href="http://www.bfsb-bahamas.com/news.php?cmd=view&id=2787&pre=y" rel="nofollow">taking his chums to the Bahamas.</a> That said, since Hope seems to do much of his writing and thinking in Edinburgh, I dare say nipping down the road would be no trouble to him. His English cronies on the bench may require further coaxing. It is not as if we can promise them the climate of the Bahamas...Lallands Peat Worrierhttps://www.blogger.com/profile/07238432265194046726noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-16810977697185626122011-07-17T16:27:01.410+01:002011-07-17T16:27:01.410+01:00Bill,
On...
"What it seems to imply is that...<b>Bill,</b><br /><br />On...<br /><br /><i>"What it seems to imply is that that there isn't sufficient strength in depth within our (Scots) judicial system to fulfil its obligations to supply its necessary share of judicial expertise to what is [currently] our domestic court of last resort, the UK Supreme Court."</i><br /><br />Predictably enough, there are very striking differences of scale in the predecessor bodies that contribute Justices for the UK Supreme Court (or Lords of Appeal in Ordinary, before the 2005 Act). The practising part of the Faculty of Advocates numbers about 300 or so and continue to dominate judges in the High Court. By contrast, according to statistics published by their Council, in 2010 the English Bar numbered 12,420 people. Presently, the UK Supreme Court has two Scots, one Northern Irish and nine English-educated judges. The differences in proportion speak for themselves, without slight to the talents of the Scottish legal system.Lallands Peat Worrierhttps://www.blogger.com/profile/07238432265194046726noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-32658469084976200942011-07-17T15:39:03.053+01:002011-07-17T15:39:03.053+01:00Should the Court of Criminal Appeal and the Court ...Should the Court of Criminal Appeal and the Court of Session also be peripatetic?hector mcglashannoreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-51444227574899673032011-07-17T01:58:51.907+01:002011-07-17T01:58:51.907+01:00Really good analysis Lallands. Not so thrilled wi...Really good analysis Lallands. Not so thrilled with Bill's highly politicised and subjective viewpoint. We've had enough of that already on this matter, from both sides of the political spectrum.<br /><br />Trying to look at this from a different perspective, and you can tell me if I'm right or wrong, if Scotland were independent, would the Supreme Court not sit in Strasbourg and be presided over by European judges? And if that were the case, why the clamour to get a majority of Scottish judges?<br /><br />Secondly, if the Scottish High Court had the jurisdiction to provide a permit for any individual to take their case before the Supreme Court (UK or not) then that would surely limit the overall number of cases, as well as put the UK jurisdictions on a level playing field. Surely this is a no-brainer.<br /><br />Lastly, if the number of cases are limited, surely the Supreme Court could be mobile and sit wherever it requires them to sit. This might ensure judges from different jurisdictions became more inclined to become familiar with the law of the area of the UK in which they were sitting, and perhaps more importantly, it would illustrate to the peoples of the countries of the UK, that this was truly a 'UK' Supreme Court.Andrew BODhttps://www.blogger.com/profile/11760729285415432266noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-2508692014252791622011-07-17T00:17:26.447+01:002011-07-17T00:17:26.447+01:00Lallands, I'm surprised you think the Supreme ...Lallands, I'm surprised you think the Supreme Court would be reluctant to abandon the Guidhall in the pursuit of justice. It seems resigned to the inconvenience and rigours of being peripatetic when attending to matters in Caribbean jurisdictions.muddypawshttps://www.blogger.com/profile/02705787157023015996noreply@blogger.comtag:blogger.com,1999:blog-1638916042737526171.post-27987976710648025892011-07-16T18:32:45.782+01:002011-07-16T18:32:45.782+01:00As usual a very interesting article, but cutting t...As usual a very interesting article, but cutting through Salmond's 'indpependence agenda' what it seems to imply is that that there isn't sufficient strength in depth within our (Scots) judicial system to fulfil its obligations to supply its necessary share of judicial expertise to what is [currently] our domestic court of last resort, the UK Supreme Court.<br /><br />Is the Scottish legal system really so weak? Is it an 'inconvenience' that 'bad decisions' by the High Court of Justice be called into question? Surely a confident, and competent, legal system should be capable of rising to such challenges.<br /><br />Whatever the desirability of taking Scotland out of the UK (and there is little of that in my view, that's to say 'none') I would hope that most Scots would be deeply perturbed that the motives for doing so should seem to be based on denying objective review of legal decisions taken by Scottish courts. Post-'inpedpendence' how would such judicial reviews be handled or would they simply be denied or brushed under the carpet?<br /><br />Where is Salmond and his SNP trying to take us in legal terms? Frankly, I am extremely suspicious.Billhttps://www.blogger.com/profile/10393265755614039206noreply@blogger.com