17 December 2015

Mr Trump goes to Strasbourg?

Yesterday, the UK Supreme Court put an end to Donald Trump's long-running legal action against the Scottish ministers. The case concerned the lawfulness of a planning consent, which ministers had granted to an offshore windpower project, overlooked by Trump's golfing paradise in Menie. 

As has become customary in cases of this kind, the wheels of justice ground fairly slowly. Lord Doherty dismissed Trump's petition at first instance in February 2014. The Lord President in the Inner House of the Court of Session backed him up in June 2015. Yesterday's ruling from Lord Hodge and his colleagues represents the end of the line for the bumptious business man. At least in turns of the domestic courts. His golfers will just have to get used to watching the shearing white turbines rotate.

But the BBC brings tidings this morning that the Donald "plans to take his legal challenge to an offshore wind farm to the European courts." I read this with some interest.  The BBC relate this declaration of intent pretty uncritically, but if (a) you've been following the case at all or (b) know anything about the european courts which Trump might bring his complaints to -- you very quickly realise the whole thing is complete bunk.

Why? Firstly, we have to look at what the legal objection to the planning consent was all about. Despite the big splash the Supreme Court decision made, almost nobody reported what the justices actually had to decide. What was Trump's big legal problem? If you dig into the decision, you see the dispute was pretty narrow, and pretty technical. The whole case turned on nice questions of statutory interpretation, the meaning of the UK Electricity Act of 1989, and the power of Scottish ministers to license electricty generation. 

At first instance, Trump's lawyers tried their hands at a common law argument, arguing that Scottish ministers were biased in their decision-making on the windfarm project. This argument fell away higher up the judicial Christmas tree. Notice what is missing here. All the way through his long case, Trump's advocates had nothing to say about the law of the European Union or the common market. Trump initially argued that the fundamental rights he enjoys under the European Convention had been rudely and unjustifiably infringed by the Scottish Government. But after Lord Doherty rejected his case categorically in the first hearing, he had no human rights arguments at all, in fact. No further references to unlawful interferences with his property rights. No case grounded in considerations of procedural unfairness, violating Article 6, and the protections it extends to individuals, whose civil rights are being adjudicated. Nowt. 

If Mr Trump had powerful arguments, rooted in EU law or Convention rights, why not air refine them on appeal? Under the Scotland Act, Scottish ministers must abide by EU law and ECHR rights. If they fail to discharge their duties, scorning civil liberties or subverting the common market, they can expect a judicial duffing up. If Mr Trump could find any persuasive, effective arguments, you can bet your last shilling that he would have made them. But he didn't. 

If you hope to toddle off to visit the European Court of Human Rights in Strasbourg, or to pay a visit the European Court of Justice in Luxembourg, you'd expect all of Trump's talented lawyers to be able to come up with some scrap of EU law or ECHR decision to support their case before now. Something. Anything. And after an initial, half-hearted effort to shoe-horn in ECHR rights, they haven't got a sausage. And what's worse for Mr Trump: the European Convention requires its applicants to exhaust effective domestic remedies. If your problem can be fixed by the legal authorities in Latvia, or Spain, or Sweden, or Scotland, Strasbourg isn't interested. Application junked. It is impossible to see how any Trumpish petition to the European Court of Human Rights could survive this test.

The idea that he is off the the Court of Justice of the European Union is even more comical. The ECJ is accessible to individuals only in very narrowly circumscribed circumstances. Even if Trump had an arguable EU law point, which he doesn't, he has no basis whatever to bring Scottish Ministers before EU judges now. It is just pseudo-legal windbaggery.

It is almost as if Trump's new threats and legal menaces are just another eruption from a posturing gasbag, struggling to reconcile himself to a reality in which nobody gives a fig for his preferences. Heaven forfend. We're kidding ourselves on if we take any of this seriously. He had his legal shot. Judges listenened politely to his arguments. He blew it. Case closed. 


  1. This comment has been removed by the author.

  2. The Earth's surface curves out of sight at a distance of 3.1 miles, or 5 kilometers. But our visual acuity extends far beyond the horizon.

    windfarm 2 miles offshore


    1. At sea level but a 600ft turbine would be able to be seen by a 6ft observer some 33 miles away. This ensures a good for from every vantage point on Mr trumps golf course.

  3. He can nuke the windfarm when he becomes President Trump. Or destroy it with the USA's by then vast reserves of military-grade hairspray.

  4. Petty minded man(!)throwing his toys and spitting his dummy out,you've been too kind to him.Malicious and destructive until he gets his own way with no concern to anyone else,well I count as do all of the people of Scotland and we deserve our opinions to be taken into consideration.

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