Douglas Adams said “we live in strange times” and Plato added to his own comment about “strange times” the words: “and he who dares tell the truth is called at once a lunatic and fool/liar.”
These observations are pertinent when we look at the decision of the Supreme Court in the recent case on whether two acts of the Scottish Parliament, fell foul of the Scotland Act. Because the Supreme Court decided that they did, the decision was described as “a dark day for democracy”.
We live in strange times when it is clear from the decision by the Supreme Court (para. 60) that the Scottish government made a deliberate decision to introduce legislation which was at odds with the provisions of the Scotland Act. It would not be stretching credulity to suggest that the government’s legal advisers knew this and, one has to assume, pointed this out. What the Scottish government wanted to do was to leave the issue to be resolved by the courts, one assumes, the Scottish courts, despite the express terms of the Scotland Act. It could not have come as a surprise to anyone familiar with the Act that this ruse did not work, and such arguments as the Scottish government put forward were doomed to fail.
To adopt the approach of that well-known legal repository, The Sound of Music, it is stated there: “Let’s start at the very beginning—a very good place to start.”
The beginning should be the Scotland Act 1998. Was its passing a “dark day for democracy?” For those past and present supporters of a Scottish Parliament, the answer must be ”no.”
That Act gave the Scottish Parliament control over a large number of matters. Was that a “dark day for democracy?” If the answer to the first question is “no,” the answer to this one must also be ”no.”
The Act reserved certain matters to the UK Parliament. Was that “a dark day for democracy?” No, because it would not make sense for the devolved administrations to have different approaches, e.g to defence.
Given the existence of reserved and devolved matters, the Act anticipated that there might be doubt, in some cases, whether an Act was within the competence of a devolved administration or reserved. In such circumstances, the Act provides a mechanism for resolution – the highest UK court. Was that “a dark day for democracy?” No, because courts are one of the ways of resolving issues and the highest court is appropriate, as it does not make sense to start from say the Sheriff Court, or, indeed, the Court of Session.
So what is “a dark day for democracy.” Simply, or simplistically because the Supreme Court did not decide matters the way the Scottish government wanted. What they wanted is not clear, as the Act provides that it is for the Supreme Court to decided on matters of this constitutional importance. One must assume that because the Supreme Court justices did not succumb to the dubious stance adopted by the Scottish government, they must, in Plato’s words, be either “lunatics or fools/liars.” Many litigants will be disappointed that they did not win, but only people who live in a strange world would describe their failure as “a dark day for democracy”.
However, what, in my view is “a dark day for democracy” is when a government deliberately decides to ignore the clear provisions of an Act of Parliament whether of the UK Parliament or otherwise and then seek to defend their actions, at public expense, when they know or ought to have known that their stance was contrary to the Act and hence, highly unlikely to succeed. Others who ignore the terms of an Act of Parliament could end up in jail.
Strange times, indeed.
Douglas J. Cusine