A voluntary union or Albatraz (Indyref2 derailed)?

This is a relatively short article about today’s major constitutional law story which relates to the future of the United Kingdom as a unitary state.

The U.K. Supreme Court has finally ruled that the Scottish Parliament does not have the legislative power to hold a referendum (either a legally binding one or a purely advisory one).

A link to the judgement can be found below:

https://www.supremecourt.uk/cases/uksc-2022-0098.html

This clearly represents a significant set back for supporters of independence for Scotland and the casual observer may arrive at the lazy conclusion that the matter is decided for the foreseeable future.

I think this is somewhat premature. The judgement of the Supreme Court contains difficulties for the U.K. Parliament and the Government of Prime Minister Rishi Sunak in the sense that the Union of the Scottish and English Parliaments in 1707 is clearly not one of a voluntary nature. This may represent something of a red rag to the bull for many Scots and give the SNP/Green Government in Edinburgh a rather large stick to beat whichever British Government happens to be in power over the next few years.

In any event, there are legal precedents for dissolution of the union of nations within the framework of the British and Irish State (as I have previously argued in The Long and Winding Irish Road).

It should not be forgotten that 26 Irish counties (now the sovereign state of the Republic of Ireland) are obviously no longer in union with the United Kingdom. In fact, the original Acts of Parliament which led to the Union of Great Britain and Ireland stated:

The First Article of the Act of Union (Ireland) 1801 (above)

This piece of legislation (and it’s Westminster counterpart) contained the (very) ambitious statement that Great Britain and Ireland were to be united for ever. Unfortunately, for the parliamentary draftsmen of both pieces of legislation, they could not possibly foresee that this permanent union would be seriously undermined by the Government of Ireland Act 1920. 119 years is self evidently not a union for ever.

It is also worth highlighting that the remaining six counties of the North of Ireland are still in part of the political framework of the United Kingdom, but this is by no means a racing certainty that this will continue. The rise of Sinn Fein as the largest political party in the Northern Ireland Assembly has raised huge question marks about the constitutional status of the six counties. I don’t think it’s a stretch of the imagination that the future of the United Kingdom of Great Britain and Northern Ireland looks very uncertain.

Even the Soviet Union (the USSR) explicitly gave its constituent Republics the right to secede in its 1977 Constitution (a right which had existed in previous versions). This right, of course, was more apparent than real as long as the Cold War endured. With the fall of Communism in the late 1980s and early 1990s, the political space was created for the Soviet Republics to chart their own courses. Admittedly, this hasn’t always been plain sailing as the current war in Ukraine and other conflicts in Armenia, Azerbaijan and Georgia amply demonstrate).

Interestingly, when the Brexit Referendum of 23 June 2016 produced a narrow majority in favour of the U.K. leaving the European Union, there was no clear constitutional process for a member state to secede, but yet on 1 January 2020, the U.K. became a former EU State.

This really leads me to the conclusion of this very short article: independence for Scotland is a political question rather than a legal question. The Supreme Court has answered a relatively easy question in the sense that the architecture of the Scotland Act 1998 does not currently permit the Scottish Parliament to hold a binding or non-binding referendum. As with the Irish Question over a century ago, permanent unions between countries or political units tend to be anything but.

One door closes and another opens …

The link to my previous article, The Long and Irish Winding Road can be found below:

https://seancrossansscotslaw.com/2021/01/10/the-long-and-winding-irish-road/

Copyright Seán J Crossan, 23 November 2022

Restorative Justice in Scotland

CITY OF GLASGOW COLLEGE LAW SYMPOSIUM, RESTORATIVE JUSTICE WEDNESDAY 2 NOVEMBER 2022

City of Glasgow College, 190 Cathedral Street, Glasgow, G4 0RF

Lecture Theatre, Level One

PROGRAMME


9.15am Welcome and Opening Remarks
Dr Paul K Little, Chief Executive and Principal, City of Glasgow College
9.30am Keynote Presentation
Keith Brown MSP, Cabinet Secretary for Justice and Veterans
9.45am Scene setting by Sheriff David Mackie
10am In discussion – Sheriff David Mackie with Gus Grubb, Dean of Faculty Education and Humanities, City of Glasgow College
10.30am Tim Chapman
Chair of the Board, European Forum for Restorative Justice
11am Professor Claudia Mazzucato
Associate Professor of Criminal Law, Universita del Sacro Cuore, Milan
11.30am 12pm 12.45pm
Joint Q&A with Tim Chapman and Professor Claudia Mazzucato Lunch
Looking at the potential challenges to the implementation of Restorative Justice in Scotland
▪ Fiona Dyer, Director, Children’s and Young People’s Centre for Justice (CYCJ)
▪ Kate Wallace, CEO, Victim Support Scotland ▪ Joined by Tim Chapman
2pm Closing discussions
2.15pm Informal networking with refreshments

This is an excellent opportunity for delegates to focus on restorative justice and engage with a range of industry experts and eminent academics to explore how widely restorative justice is recognised in Scotland. The Law Symposium will debate the potential challenges to its implementation and look at the bigger picture across Europe, to identify where Scotland sits in this landscape. 

This one-day event includes a keynote speech by Keith Brown MSP, Cabinet Secretary for Justice and Veterans. It will be hosted jointly with Sheriff David Mackie, one of Scotland’s leading authorities on restorative justice and who facilitated a pilot case in 2019. 

The event will incorporate guest speaker sessions including delivery by Tim Chapman, Chair of the Board of the European Forum for Restorative Justice and Visiting Professor at the University of Strathclyde’s Centre for Law, Crime & Justice and Professor Claudia Mazzucato, Associate Professor of Criminal Law, Universita del Sacro Cuore, Milan.

The Queen’s Speech

Recently, I have been discussing with my students the creation of statutory criminal offences i.e. those created by Parliament (whether the U.K. or Scottish Parliaments). In particular, the group discussions have centred around the issue of whether the offence requires the accused to have mens rea (criminal intent or the guilty mind) when carrying out or attempting the actus reus (the wrongful act). Alternatively, the offence may be one of strict liability where mens rea is largely irrelevant. Strict liability offences include non-payment of a TV licence and some road traffic offences.

In relation to strict liability offences, the Crown (the prosecutor) merely has to prove beyond reasonable doubt that the accused committed the actus reus.

These issues were particularly pertinent because the Queen’s Speech had just taken place at Westminster on Tuesday 10 May 2022 (delivered by Prince Charles this year in his mother’s absence). This is a ceremonial occasion in the life of the U.K. Parliament, but it isn’t just for the tourists to come and gawp at. It’s the occasion where the U.K. Government sets out its legislative or law making proposals for the next year.

It used to be a very important occasion for Scotland, but since the Scottish Parliament was set up in 1999 (the Devolution process), it has become less so. Many laws for Scotland are now made in Edinburgh.

That’s not to say that the U.K. Parliament can no longer pass laws for Scotland. That would be giving you a totally false impression: the U.K. or Westminster Parliament remains the supreme law making or legislative authority in Scotland, England, Northern Ireland and Wales. That is a legal fact.

One of the Bills that was mentioned in the Queen’s Speech this year was the Public Order Bill. This is a very controversial Bill because it aims to target and control the conduct and extent of public protests – particularly protests by environmental groups such as Insulate U.K. and Extinction Rebellion.

The section of the Queen’s Speech referring to the Public Order Bill

A link to the text of this year’s Queen’s Speech can be found below:

https://www.gov.uk/government/speeches/queens-speech-2022

When I was speaking to the students several days after the Queen’s Speech, I was saying that I would have to go and look at the text of the Public Order Bill in order to establish a number of things:

a) Does it apply to Scotland? The answer would appear to be no as the text of the Bill mentions England and Wales only.

b) Does it create strict liability criminal offences in relation to the practice of ‘locking on’; ‘obstruction etc of major transport works’; and ‘interference with use or operation of key national infrastructure’?

For locking on offences, the intention of the accused still seems to be critical, but regarding obstruction etc of major transport works, there could possibly be an element of strict liability.

Some screenshots from the text of the Public Order Bill can be seen below:

Front page of the Public Order Bill 2022
The proposed offence of locking on. Note the use of the words intend and reckless which are underlined in red

When the language of a Bill or an Act of Parliament uses words such as ‘wilfully’, ‘recklessly’ or ‘intentionally’ in connection with a criminal offence, it’s a fairly safe bet to conclude that the Crown must be able to demonstrate that the accused had the necessary mens rea when the actus reus occurred.

Some of the media commentary around the Public Order Bill was misleading to say the least – particularly in relation to the proposed offence of ‘locking on’. I picked up from several media outlets that this proposal involved the creation of a strict liability offence and, yet, the language of the Bill seems to suggest otherwise.

Section 2 (the proposed offence of being equipped for locking on). Note that the word intention appears in the text.
Section 3 of the Public Order Bill 2022. Note that the text does not contain any words or phrases which suggest that the mens rea of the accused is essential.

That said, Section 3 of the Bill (obstruction etc of major transport works), lacks clear references to the intention of the accused and this might suggest that Parliament intends to create a strict liability offence. Further clarity can, of course, be sought by studying the explanatory notes which accompany the Bill. It is worth pointing out that, even if this is an attempt by Parliament to create a strict liability offence, it could be blocked or amended as the Bill makes it way through the Commons and the Lords.

Sweet v Parsley [1969] UKHL 1

In the above (and often quoted) decision of the House of Lords, Lord Reid (in paragraph 6 of the judgement) made the following observations regarding statutory offences which require mens rea and those which are ‘absolute’ or ‘strict’:

“Our first duty is to consider the words of the Act: if they shew a clear intention to create an absolute offence that is an end of the matter. But such cases are very rare. Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or another. Such cases are quite frequent. But in a very large number of cases there is no clear indication either way. In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did. That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea.”

A link to the decision of the House of Lords can be found below:

https://vlex.co.uk/vid/sweet-v-parsley-794063145

Conclusion

The Public Order Bill must now pass through the House of Commons and then the House of Lords before receiving the Royal Assent. Once the formality of the Royal Assent has taken place, the Bill becomes an Act of Parliament i.e. part of the law of the land (for England and Wales in any case).

I am jumping the gun somewhat: the Bill might have a stormy passage through Parliament. As if to prove my point, please see a recent Tweet from Caroline Lucas, the Green Party MP:

We’ll just have to wait and see how matters develop.

Copyright Seán J Crossan, 23 May 2022

Revolutionary Road?

Photo by Robert Ruggiero on Unsplash

Last weekend (more specifically Saturday 29 January 2022) saw a really significant overall of the UK’s Highway Code which means that pedestrians and cyclists will be given far greater protection.

I was originally going to entitle this Blog either Code of Silence or Code Unknown, purely on the grounds that the changes seem to have crept up without any real awareness on the part of the British public. The reason I say this is because I was listening to BBC Radio 2 during the week running up to the changes. Jeremy Vine, the host of the eponymous show, was discussing the impending reforms with a panel of interested parties. One of the guests, Leo Murray, from the climate charity Possible, basically remarked that the UK Government had been remiss in failing to publicise these important changes.

I have to admit that I had only become aware of these changes a few days previously when I happened to come across an article from a Scottish regional newspaper which had appeared on social media.

As a pedestrian, cyclist and motorist, I’m pretty glad that I did find out in time. I also have more than a passing interest in this area as someone who has been knocked off my bike twice in less than 18 months by motorists (who were both at fault). Drivers ,who don’t cycle or walk that much, often forget how vulnerable pedestrians and cyclists actually are.

The main outcome of the new rules is the creation of a hierarchy of road users where the most vulnerable individuals – pedestrians, followed by cyclists, and then horse riders will be given priority over motorists, buses and heavy goods vehicles.

This past week alone, I’ve had to make a conscious effort to slow down when turning my car left into junctions in order to give pedestrians priority. I also take greater care when I’m turning right into junctions or leaving roundabouts. I’m quite happy to do this because as an occasional pedestrian and, as a more regular cyclist, I understand that I will benefit from the changes to the Highway Code?

One of the features of the new Code – which I particularly support – is the right of cyclists to use the middle of the road in order to avoid potholes (and other debris), enjoy greater visibility and making it easier to turn right. There are also new rules about giving cyclists greater space when being overtaken by motorists.

Some driving commentators such as the former BBC presenter, Alan Douglas (speaking to Radio Clyde) , have expressed their misgivings about the new rules saying that they are great in theory, but less so in practice. We’ll just have to wait and see.

I do think, however, that this is a timely reminder to the (pure) motorist community ( i.e. those individuals absolutely wedded to the idea of the car as being the sole, legitimate form of road transport) that our highways are a shared space. I often enjoy debunking the old myth or chestnut when talking to (pure) motorists that cyclists do not pay vehicle excise duty. As a driver who also happens to be a cyclist, I do pay several hundred pounds a year in vehicle excise duty for the privilege of using the roads. As a matter of fact, a lot of motorists who drive electric cars and lower emissions vehicles are exempt from this form of taxation. In any case, the sum collected from vehicle excise is not used to pay for road building and maintenance. This comes from general taxation (see link to article below):

https://www.pressandjournal.co.uk/fp/pj-investigations/2477257/the-road-tax-debate-can-drivers-claim-to-own-the-roads/

When motorists use the term of abuse “bloody cyclists!”, they are actually falling into a false dichotomy or “them and us” mindset because many cyclists are in fact car drivers.

Heading towards stricter liability?

The new rules will certainly be the go to reference point in both criminal prosecutions for careless and dangerous driving (Sections 2 and 3 respectively of the Road Traffic Act 1988) and for civil claims in delict and tort involving personal injury and property damage.

Personally and professionally speaking, I’m more interested in the civil aspects of road accidents. In the second, more serious road accident that I was involved in, the driver was charged with careless driving (which was not contested) and probably received a fine and penalty points. I, on the other hand, was left with injuries – necessitating a lengthy course of physio – and a racing bike which had to be written off.

An out of court settlement with the driver’s insurance company eventually followed after my solicitors had raised the prospect of a civil claim. This outcome to the matter was much more satisfying for me than any action taken against the driver under the criminal law.

One area of controversy that surrounds the burden of proof in relation to delictual liability occurs in road traffic accidents involving pedal cyclists and motorists.

Currently, a cyclist who is injured in a road traffic accident must prove that the vehicle driver was at fault or to blame. Most European countries have reversed the burden of proof so that a motorist involved in a collision with a cyclist must prove that s/he was not to blame or at fault for the accident.

Only the United Kingdom, Cyprus, Malta, the Republic of Ireland and Romania operate a system whereby the cyclist must prove fault. This proposed reform, supported by many cycle organisations, has ignited passions and it remains to be seen whether it will find favour with British legislators.

Conclusion

Although the reforms to the Highway Code are certainly revolutionary in some respects, I would hesitate to say that we have arrived at a destination of strict liability in relation to road accidents. The changes do represent a new philosophy in road use whereby whoever you are you should always be thinking about those individuals who are more vulnerable than you.

A guide to the main changes brought in by the updated Highway Code can be viewed by clicking on the link below:

https://www.gov.uk/government/news/the-highway-code-8-changes-you-need-to-know-from-29-january-2022

Postscript

In April 2022, Neil Greig, Policy and Research Director at IAM Roadsmart, claimed that:

An alarming number of motorists are driving on British roads without awareness of key changes which fundamentally shift the dynamics of shared use.

This is a serious safety risk which could actually see the updated code causing more conflict on our roads rather than less.”

A survey carried out by Mr Greig’s organisation concluded that one in five drivers was not aware of the recent changes to the Highway Code. A large reason for this ignorance was the fact that the U.K. Government had failed to advertise adequately the changes to the Code. Apparently, a new information campaign to be carried out in the Spring will hopefully rectify this unfortunate situation.

A link to the IAM Roadsmart’s website can be found below:

https://www.iamroadsmart.com/media-policy/media-enquiries/news-details/2022/04/08/uncertainty-over-new-hierarchy-of-road-users-could-cause-more-conflict-on-our-busy-shared-streets

Copyright Seán J Crossan, 5 February & 9 April 2022

The future is … feudal

Photo of the author’s copy of Dune

The latest big screen adaptation of Frank Herbert’s seminal science fiction novel, Dune, finally received its U.K. cinema release on 22 October 2021. The movie is the latest work by Canadian director, Denis Villeneuve and has been very warmly received by critics and fans. On the back of this success, the studio has just given the go ahead for Villeneuve to film Part 2 of Herbert’s novel.

I’ve been a big fan of Herbert’s novel since first reading it as a teenager. I’m going to stick my neck out and also say that I still have a tremendous affection for David Lynch’s 1984 film adaptation of the novel.

The received wisdom is that Lynch made a real mess of this version. As a counter argument, I would urge you to watch the fan edit of Lynch’s movie which demonstrates, in my humble opinion, that he had a clear vision for the project. Tellingly, the studio hadn’t given Lynch the right of final cut in his contract in relation to the movie and a much shorter version was shown in cinemas. At one point, Lynch had his name removed from the credits in certain versions of the movie and he is on record that the whole experience remains a great source of sadness for him.

If you are interested in the fan edit version of Lynch’s Dune, check it out on YouTube at the link below:

https://youtu.be/faHQA_0d9Mo

A place beyond your dreams ..

This was the first part of the marketing tag line used by the studio to market Lynch’s version of Dune. True, Herbert’s plot is set 10,000 years into the future. From what we can gather, Planet Earth no longer exists and the human race has spread out to colonise other planets far, far beyond our known universe.

The planet Arrakis (or Dune) is an extremely harsh desert world where water is at a premium. Herbert tells us in the early stages of his novel, that labourers go out before dawn to gather in the dew. As Duke Leto Atreides reflects:

“Perhaps this planet could grow on one. Perhaps it could become a good home for my son. And it could be a hideous place.”

More importantly, the planet is the only source of the spice, Melange which makes interstellar travel achievable, increases human longevity and can give certain individuals the gift (or curse) of prescience. For these reasons, control of Arrakis – despite its barrenness and the hostility of the native Fremen – is fiercely sought and often contested. This desire to control the planet is one of the most important plot drivers in the novel, but more about that later.

Yet, was Herbert’s universe really so strange and beyond our dreams?

Yes – and no. Any student of history would tell you that the institutions and concepts that Herbert uses to give structure to his universe have a long pedigree in human existence.

What struck me most about Herbert’s novel was the fact that democracy or rule by and of the people doesn’t even get a look in. Readers can safely assume that democracy is extinct – rather like Earth. What we have in its place is monarchical government or – more accurately – imperial government. Prime Ministers and Presidents are very much in the past and Emperors, Dukes, Barons, Counts and their various retainers are the order of the day.

The Padishah Emperor

What we have is an imperium headed by the Padishah Emperor Shaddam IV of Noble House Corrino. This family has controlled the Golden Lion throne for thousands of years. Below Shaddam IV are the various noble families (Atreides and Harkonnen to name two of the most significant Houses). Like a medieval monarch or Roman Emperor, Shaddam IV retains control through a mixture of coercion and patronage. The iron hand in the velvet glove might be a useful metaphor here.

In this imperium – strange and yet so familiar – we have a rigid class hierarchy known as the faufreluche system which Herbert tells us lives by the motto, “A place for every man and every man in his place.”

To any Scots lawyer who remembers their sources of law lectures will doubtless recognise this system – admittedly by another name – feudalism.

It’s worth noting that women, in this system, don’t have many rights. Although Duke Leto Atreides is portrayed as an honourable man, he keeps a bound concubine, the Lady Jessica. We are told in the novel that the Old Duke, sent his buyers to acquire Jessica as a concubine for his son. Although Jessica is not the wife of Duke Leto, she wields huge influence due to the fact that she has given him a son and heir (Paul Atreides).

In many respects, this aspect of Dune, is similar to one of the plot devices in director, Ridley Scott’s latest historical epic, The Last Duel. In the feudal system, women are regarded as the chattels (moveable property) of their fathers, husbands or other male relatives. In The Last Duel, Matt Damon’s character is perhaps most outraged by the fact that Adam Driver’s character has interfered with his proprietorial rights over his wife.

Feudal law

The feudal system is described as a multi-tiered system of land ownership and, consequently, it can be very complex.

Yet, it wasn’t a Scottish invention: the credit or the blame for this social hierarchy lies elsewhere. To paraphrase Dune, be careful to locate feudalism in its rightful place: England.

It was introduced to Scotland during the reign of King David I (1124–53). David had spent his youth at the English court (probably as a hostage to secure the good behaviour of the Scottish King) and was clearly influenced by the effectiveness of feudalism.

The first Norman King of England, William the Conqueror (1066-87) brought feudalism to his new kingdom primarily as a means of controlling an often hostile populace who would never be reconciled to their new masters. William had seized control of England after defeating the last English or Saxon king, Harold Godwinson at the Battle of Hastings (1066). Grim Norman keeps would spring up all over England from which battle hardened warriors would (and could) sally out to keep uppity locals in their place and to safeguard the King from any foreign threats to his power.

From the earliest days of the system, it operated, however, on very simple principles. The King (the Superior) would grant parcels of land to his supporters (vassals) who, in return, would administer the land (very often in the role of Sheriff – another English practice) and, more importantly, they would provide the King with soldiers in times of war or civil unrest.

In other words, the feudal system was all about maintaining royal power in England and Scotland (i.e. land for loyalty). The land was never granted absolutely – if a vassal (i.e. the person who held the land) failed to keep his side of the bargain, the King would remove all his rights to the land and appoint someone in his place. These supporters would in turn distribute parts of the land to their followers in order to retain their loyalty.

Under the feudal system, property was divided into two categories:

♦    Heritable property 

♦    Moveable property 

The fundamental principle of the feudal system always centred around tenure. This means that the land was granted according to certain conditions which the vassal had to carry out dutifully.

It may be rather hard to believe, but remnants of the feudal system survived in Scotland into the early twenty-first century before it was finally abolished on 28 November 2004 when the provisions of the Abolition of Feudal Tenure etc. (Scotland) Act 2000 took effect.

Feudalism as a plot device in Dune

The initial stages of the novel are driven by the Emperor’s command that House Atreides take control of Arrakis from their mortal enemies, House Harkonnen. Although Duke Leto Atreides suspects that the Emperor’s motives are less than pure when conferring Arrakis on him as new fiefdom, he has no choice but to obey this order.

You might be forgiven for thinking that Duke Leto could refuse, but this would invite punitive military action at the hands of the dreaded Sardaukar – the Emperor’s terror troops. Even Baron Harkonnen, a partner in the Emperor’s scheme to destroy House Atreides, is fearful of the Sardaukar, knowing only too well that they could turn on his own troops at the click of the imperial fingers.

Like many historical monarchs, Shaddam IV fears the growing power of rival noble houses in his imperium and Arrakis is the bait which will bring the Atreides down. William the Conqueror, while still a mere Duke of Normandy, had an often fractious relationship with his cousin in law, the King of France. William also had a difficult relationship with his eldest son, Robert Curthose, which eventually degenerated into open warfare.

The Conqueror’s successors (the Kings of England) would make repeated bids to seize control of the French throne during the period known as The Hundred Years’ War (1337-1453). It is often forgotten that Paris was, at one point, an English possession which French military, heroine, Jeanne d’Arc tried to wrest back (unsuccessfully) for the King of France.

Perhaps the most infamous example in Scottish history where a monarch dispatched a serious rival was when King James II personally murdered William, 8th Earl of Douglas, at a banquet held at Stirling Castle on 22 February 1452. George R R Martin has stated that it had provided the inspiration for his Red Wedding in his Game of Thrones’ series of novels.

You can read more about this event and the background to it by clicking on the link below:

https://blog.stirlingcastle.scot/2021/02/22/douglas-murder/

The transfer of fiefdoms by a monarch is a key feature of feudalism. You might hold a fief at the Emperors behest, but tenure is never absolute. Don’t ever forget this …

Copyright Seán J Crossan, 19 November, 2021

Burn the witch!

Photo by Kayla Maurais on Unsplash

It’s Halloween today and it seems perfectly natural to be talking about witches and the supernatural. It’s a day of fun for a lot of people – young and old.

That said, to call someone a witch – specifically – a woman, would likely be regarded as an example of misogyny or hatred of women. It would be intended as an insult.

Several hundred years ago, in Scotland, you would not be dressing up as a witch or a warlock (the male counterpart). There was a very real fear of witches and their ability to carry out evil deeds against well doing members of the community.

These sorts of beliefs may seem very strange to modern readers, but Scotland was a very different place some 400 years ago. Even the American colonies were susceptible to claims about witchcraft e.g. the Salem Trials (1692-93) which the playwright, Arthur Miller so marvellously and disturbingly brought to life in The Crucible. In Miller’s play, the authorities cynically use the trials to extend their control over the populace (it was no coincidence that the play was written at the time of the McCarthyite Anti-Communist witch hunts in fifties’ America).

European and American Society was markedly more religious in its outlook. These were pre-Enlightment times after all – before science and reason was in the ascendancy. Everything was either the handiwork of God – or his sworn enemy, the Devil. The evidence of this eternal struggle could be seen all around: a good harvest would be a sign of God’s favour, whereas times of famine would be a portent of evil stalking the land.

The Devil (or Deil in Scotland) was omnipresent and always on the lookout for followers to advance his agenda. This is where witches, warlocks, covens and familiars enter the story.

Thou shalt not suffer a witch to live

The Book of Exodus, in the Old Testament, was particularly strong on the issue of witchcraft:

“Thou shalt not suffer a witch to live.”

The above verse – tellingly – comes from the King James Bible (chapter 22 verse 18). I use the word tellingly because King James (VI of Scotland and I of England) had a special interest, not to say primal fear, in and of witches.

There were similar exhortations in other books of the Old Testament (e.g. Leviticus, 19:26 & 20:27 and Deuteronomy, 18:10-11 about the consequences of practising witchcraft.

In 1590, James was convinced that some 200 witches had cast spells against him in an attempt to sink the vessel he was travelling on when he returned from Denmark with his new bride, Anne. The ship had run into a serious storm and the crew and passengers were lucky to make landfall safely. Only divine intervention, so it seemed, had thwarted the malevolent designs of the coven who had set out to ensnare the Royal couple.

https://www.nationalgeographic.co.uk/history-and-civilisation/2019/10/royal-obsession-black-magic-started-europes-most-brutal-witch

Fears about witchcraft in Scotland did not begin with James. In 1563, the Scottish Parliament had passed the Witchcraft Act which made such practices a capital offence i.e. practitioners of the dark arts could expect the death penalty to be imposed (‘pane of deid’ in the language of the statute). The guilty parties (and there were rather a lot of them) would first be strangled and then burned. For the pious executioners this punishment was merely symbolic because eternal hellfire was the real and awful fate awaiting the newly deceased.

During his reign, James – who fancied himself something of an expert on the subject – would take the campaign against witches to a new level. Rooting out the followers of the Devil would be officially sanctioned by the Church and the State (which were really one and the same thing) according to Claire Mitchell QC. In fact, the King went so far as to record his thoughts on the occult in his Treatise called Daemonologie.

The Witchcraft Act would remain on the statute books in Scotland until 1736, but it would claim thousands of victims.

Pardoning the victims?

Claire Mitchell QC is one of the driving forces behind a campaign to have the existing Scottish Parliament issue a pardon to the estimated 3837 victims of the witchcraft trials. Most of the victims were women. As Claire explained, during an interview with Jeremy Vine on BBC Radio 2 last week, we have an idea of the numbers of victims and their profiles because of the existence of Parish Records and the records of witchcraft trials from the period.

Claire became aware of this gruesome period in Scottish history when:

Doing research in the Advocates Library on ‘Bloody Mackenzie’, a Lord Advocate during the Witchcraft Act, I read a quote from a poor woman who had been convicted of witchcraft. She was so confused that she asked, ‘Can you be a witch and not know it?’ I was very angry and decided to find out more about Scotland’s witches.

For more information about Claire Mitchell’s campaign, click on the links below:

https://scottishlegal.com/article/claire-mitchell-qc-seeks-posthumous-justice-for-scotland-s-witches

https://www.witchesofscotland.com

The issuing of general pardons by Parliament to redress historical miscarriages of justice are not a new development. Just this month, the Scottish Government published a Bill which aims to pardon people who took part in the 1984-85 Miners’ Strike in relation to three specific criminal offences.

For more information about this issue, please click on the link below:

https://www.lawscot.org.uk/news-and-events/legal-news/miners-strike-pardons-bill-brought-to-holyrood/

In 2018, the Scottish Parliament passed the Historical Sexual Offences (Scotland) Act which issued pardons to all those men who had been convicted of the offence of same sex activity. Homosexual activity – even between consenting male partners – was unlawful in Scotland until 1981.

Opposition to the pardons

Despite the above precedents, some legal commentators are not as enthusiastic about a general pardon being issued to the victims of the Witchcraft Act. Professor Douglas J. Cusine was firmly of the view that such gestures were using up valuable parliamentary time which could be concentrated on more pressing issues. In some respects, the pardons for gay men and the proposed ones for the miners are more logical and can be more easily justified in that many of the victims are still alive – or at least the injustices took place within living memory.

A link to a letter submitted to Scottish Legal News by Professor Cusine can be found below:

https://www.scottishlegal.com/article/letter-witch-pardon-risks-making-a-mockery-of-holyrood

That said, at time of greater awareness of violence against women and general misogyny, perhaps Professor Cusine is missing a trick (no pun intended).

For some recent stories about generalised misogyny, please click on the links below:

http://news.sky.com/story/johnny-depp-libel-trial-star-called-amber-heard-a-witch-in-text-messages-court-hears-12024026

http://news.sky.com/story/nhs-scandals-review-women-verbally-abused-by-clinicians-after-raising-concerns-12024212

Conclusion

We live in very different times when someone who says that they are a practitioner of witchcraft or the occult might well cause some curiosity on the part of his/her listeners.

Section 10 of the Equality Act 2010 may, arguably, now protect such an individual on the basis of their philosophical beliefs. We also have a far greater respect for a person’s private and family life in terms of Article 8 of the European Convention on Human Rights. In the 16th Century, individuals who seemed to be a bit left field or eccentric would not have appeared harmless or endearing to most members of the community. The stereotypical old woman who lived alone in the woods and who was a healer, could very quickly become the subject of communal hostility. It might even cost her her life.

For information about a modern witch or a pagan practitioner, please click on the link below:

https://www.bbc.co.uk/news/uk-scotland-58852476

Copyright Seán J Crossan, 31 October 2021

It’s official: I’m a worker!

Photo by Daniel Monteiro on Unsplash

Almost two years ago, I mentioned the English Court of Appeal’s decision in Uber BV & Ors v Aslam & Ors [2018] EWCA Civ 2748 on appeal from UKEAT/0056/17/DA), where individuals working as taxi drivers for Uber were to be classified as workers not self-employed individuals.

This decision was a significant defeat for Uber, but it was hardly going to be the last word in the story and so it proved. An appeal to the U.K. Supreme Court was always going to be on the cards and, on Friday 19 February, the Justices issued their judgement (see Uber BV & Ors v Aslam & Ors [2021] UKSC 5).

The Supreme Court was asked to consider two questions by Uber:

  1. Whether the drivers (the Respondents) were “workers” providing personal services to the Second Appellant.
  2. If the Respondents were “workers”, what periods constituted their “working time”.

The result? Uber drivers are workers not self-employed individuals. Essentially, the Supreme Court has approved the earlier decision of the English Court of Appeal.

Although Uber drivers won’t acquire full employment status, this decision is, nonetheless, highly significant. It will, for example, mean that Uber drivers will be protected under the National Minimum Wage legislation and the Working Time Regulations.

Paragraphs 94 to 102 of the Supreme Court’s decision are really instructive. The Court found the following matters extremely significant:

  • The rates of pay for taxi drivers was set solely by Uber
  • The contractual terms were dictated solely by Uber
  • Uber constrained or restricted the ability of drivers to decline jobs
  • Uber strictly vetted the type of vehicle which drivers could use for jobs and the technology used by drivers was “wholly owned” by Uber
  • The communication between a driver and a passenger was severely restricted by Uber in order “to prevent drivers from establishing any relationship with a passenger capable of extending beyond an individual ride.”

As Lord Leggatt (who delivered the unanimous judgement of the Court) stated at paragraph 102:

Taking these factors together, it can be seen that the transportation service performed by drivers and offered to passengers through the Uber app is very tightly defined and controlled by Uber. Furthermore, it is designed and organised in such a way as to provide a standardised service to passengers in which drivers are perceived as substantially interchangeable and from which Uber, rather than individual drivers, obtains the benefit of customer loyalty and goodwill. From the drivers’ point of view, the same factors – in particular, the inability to offer a distinctive service or to set their own prices and Uber’s control over all aspects of their interaction with passengers – mean that they have little or no ability to improve their economic position through professional or entrepreneurial skill. In practice the only way in which they can increase their earnings is by working longer hours while constantly meeting Uber’s measures of performance.

A link to the judgement can be found below:

https://www.supremecourt.uk/cases/docs/uksc-2019-0029-judgment.pdf

Workers or independent contractors?

Worker is a term which is widely used in EU equality and employment law, but a single definition does not exist. As a result of the U.K.‘s long relationship with the EU, the term has entered the British legal systems and, in the interim period, Brexit will not change this fact.

In Allonby v Accrington and Rossendale College (Case C-256/01) [2004] ICR 1328; [2004] ECR I-873 the Court of Justice made the following observation:

“… there must be considered as a worker a person who, for a certain period of time, performs services for and under the direction of another person in return for which he receives remuneration …”

In Syndicatul Familia Constanta v Directia Generala de Asistenta Sociala si Protectia Copilului Constanta (Case C-147/17) EU:C:2018:926; [2019] ICR 211, the Court of Justice of the EU was strongly of the opinion that the relationship between employer and worker was of a “hierarchical” nature. This was a view echoed by Lord Clarke in the Supreme Court’s decision of Hashwani v Jivraj [2011] UKSC 40; [2011] 1 WLR 1872 where he identified the relationship as one of “subordination” in favour of the person receiving the services.

That said, Baroness Hale in a later Supreme Court decision – Clyde and Co LLP and Anor v Bates van Winkelhof [2014] UKSC 32 – stated that “while subordination may sometimes be an aid to distinguishing workers from other self-employed people, it is not a freestanding and universal characteristic of being a worker”. This remark was quoted with approval by Lord Leggatt in the Uber decision at paragraph 74 of his judgement.

In other words, such a feature is merely to be deployed as one of the many possible tests that can be used by the courts to analyse a relationship between two parties.

The Employment Rights Act 1996

Section 230(1) of the Employment Rights Act 1996 contains the definition of who precisely is an employee i.e. someone who has a contract of service. If you don’t have this type of contractual arrangement (you’re not an employee), you may well be working under a contract for services. This is one of the most important distinctions in employment law in the United Kingdom.

Section 230(3) of the Act also defines in law an individual who is a ‘worker’. This can include someone who provides services under an employment contract – and, crucially, some individuals who fall into the self-employed category.

Conclusion

Individuals working under a contract for services – precisely because of their lack of employment status – are often denied access to the sorts of legal rights which employees routinely take for granted e.g. unfair dismissal protection, redundancy protection, family friendly rights.

There are notable exceptions (aren’t there always?): high earning British television celebrities (e.g. Lorraine Kelly) or a number of BBC news journalists have preferred to be treated as freelancers or self-employed persons. Why? They can then minimise their exposure to income tax liability in a way (often via the medium of personal service companies) that would not be possible because if they were employees they would almost certainly be taxed at source on a PAYE (pay as you earn) basis. 

We have seen an explosion in the type of work that is often characterised or labelled as the ‘gig economy’. This work is often characterised by a distinct lack of employment rights; irregular working patterns; chronic insecurity; lack of long term career progression; and low pay. It is often impossible for such individuals to complete the necessary periods continuous service to acquire employment rights. 

Companies such as Deliveroo, Lyft and Uber have become synonymous with the ‘gig economy’, as have whole sectors of the employment

There’s now a growing awareness on both the part of the UK Government (The Taylor Review) and the European Union (the forthcoming EU Directive on Transparent and predictable working conditions) that people on contracts for services deserve greater levels of work-place protection.

It’s not just in the UK that debates about employment status are currently playing out. At the tail end of 2019, it was with particular interest that, in 2019/20, I was following a story from the United States which highlighted many of the issues which I have just been discussing in this Blog.

The US State of California enacted a law, Assembly Bill 5 2019 or AB5 (known more popularly as the gig economy law) giving those individuals working in the gig economy more employment rights. The law came into force on 1 January 2020.

The Covid-19 pandemic has also exposed the lack of employment protection for workers and the self-employed. Only last March, I was writing about the fact that the U.K. Government’s reforms to Statutory Sick Pay would would not include approximately 2 million individuals – a situation that Frances O’Grady, General Secretary of the TUC was quick to highlight.

Related Blog articles:

https://seancrossansscotslaw.com/2019/03/25/strippers-are-workers-too-discuss/

https://seancrossansscotslaw.com/2020/02/13/california-dreamin/

https://seancrossansscotslaw.com/2020/03/05/state-of-emergency/

https://seancrossansscotslaw.com/2020/03/04/sick-pay-or-the-coronavirus-conundrum/

https://seancrossansscotslaw.com/2019/04/19/the-gig-economy/

https://seancrossansscotslaw.com/2019/07/22/good-work/

https://seancrossansscotslaw.com/2019/03/22/hello-im-lorraine-and-im-definitely-self-employed/

https://seancrossansscotslaw.com/2019/12/21/employee-or-not/

https://seancrossansscotslaw.com/2019/01/17/employment-status/

https://seancrossansscotslaw.com/2019/05/08/call-me-an-uber/

https://seancrossansscotslaw.com/2019/03/25/strippers-are-workers-too-discuss/

https://seancrossansscotslaw.com/2019/02/14/horses-for-courses-the-equine-flu-

Copyright Seán J Crossan, 21 February 2021

Sex or gender?

Photo by Dainis Graveris on Unsplash

Sex or gender: which term do you prefer? Can they be used inter-changeably?

These questions have now come into sharp focus as a result of an amendment to the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill.

Our understanding of the terms “sex” and “gender” may now have to evolve as a result of the debate surrounding aspects of the Bill, but before we discuss this Bill it’s worth looking at the current legal position surrounding gender recognition issues.

The Equality Act 2010

Section 11(1) of the Equality Act 2010 defines a person’s “sex” in the following terms:

In relation to the protected characteristic of sex — a reference to a person who has a particular protected characteristic is a reference to a man or to a woman

In other words, current UK equality law means that your sex is determined at birth when you will be categorised as ‘Male’ or ‘Female’ and this will be entered on your birth certificate. We, therefore, do not have a choice about our sex when we are born. It is a matter of biology.

What about a person’s gender? Section 7(1) of the Equality Act 2010 provides us with guidance on this matter:

A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.

The Gender Recognition Act 2004

In April 2005, the Gender Recognition Act 2004 came into force. This Act, which received the Royal Assent on 1 July 2004, currently provides people who have undergone gender reassignment procedures with legal recognition in relation to their newly acquired gender identity. The legislation applies across the United Kingdom and was passed by the Westminster Parliament.

Legal recognition of a person’s decision to reassign the sex or gender they have had from birth will follow from the issuing of a full gender recognition certificate by a Gender Recognition Panel. The individual applying for such a certificate must be able to satisfy certain criteria – the most important criterion will centre around the submission of medical evidence of physiological changes by the applicant.

The Scottish Government was intending to reform the 2004 Act, but in the teeth of strong opposition within the Scottish National Party, such proposals have been dropped for the time being.

Self-identification

Under the Scottish Government’s proposals, an individual would have been permitted effectively to self-identify as a person of the opposite sex without having to undergo invasive medical procedures and provide the evidence of this fact in order to obtain recognition from the Panel.

This meant that an individual wishing to undergo gender reassignment in Scotland would have to have met the following criteria:

  • A statutory declaration to the effect that they have decided to change gender or sex;
  • The declaration will contain a statement that the individual has been living as a man or a woman for at a minimum of 3 months;
  • The individual will have to undertake a compulsory or mandatory period of 3 months to reflect on the decision to undergo gender reassignment (no gender recognition certificate will be issued until this period has been completed).

Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill

This Bill has proved to be another flashpoint in the often fierce debate over gender recognition.

The Bill, which passed Stage 3 in the Scottish Parliament on Thursday 10 December 2020, has reignited the debate about the terms “sex” and “gender” and their use in legislation.

The Bill passes Stage 3 in the Scottish Parliament

The purpose of the Bill is set out below:

“… to improve the experience, in relation to forensic medical services, of people who have been affected by sexual crime. It does this by providing a clear statutory duty for health boards to provide forensic medical examinations to victims and to ensure that an individual’s healthcare needs are addressed in a holistic way in the context of any such examination (or where such an examination is not proceeded with). As well as placing a duty on health boards to provide forensic medical examinations when a victim is referred for such an examination by the police, the Bill allows victims to “self-refer”. Self-referral means that a victim can request a forensic medical examination without having reported an incident to the police. The Bill provides a statutory framework for the retention by health boards of samples obtained during a forensic medical examination, which may support any future criminal investigation or prosecution. In self-referral cases, this allows the victim time to decide whether to make a police report.

A controversial amendment?

At first glance, no one could possibly object to the aims of the Bill, but Johann Lamont MSP, a former leader of the Scottish Labour Party, saw an opportunity to introduce an amendment to the Bill.

Such a development is not an unusual practice for parliamentarians to introduce amendments to Bills proceeding through Parliament. The introduction of amendments to Bills often permit reform to earlier pieces of legislation. In this case, the Lamont amendment was directed towards changing the wording of Section 9(2) of the Victims and Witnesses (Scotland) Act 2014.

As things currently stand, Section 9(2) of the 2014 Act states that:

Before a medical examination of the person in relation to the complaint is carried out by a registered medical practitioner in pursuance of section 31 of the Police and Fire Reform (Scotland) Act 2012, the constable must give the person an opportunity to request that any such medical examination be carried out by a registered medical practitioner of a gender specified by the person.

This could mean, under current law, that a victim of a sexual assault e.g. a biological or cis woman might have to undergo an examination by a medical professional who is a transgender female.

The Lamont amendment (which has now been accepted overwhelmingly by the Scottish Parliament) will ensure that the word “gender” will be replaced with the word “sex”.

Johann Lamont’s amendment will remove an anomaly in the law which currently permits a transgender person who is a medical professional to examine a victim of a sexual assault.

Further controversy

When one flashpoint is resolved, another disagreement about sex and gender is never far away in Scotland.

An organisation called forwomen.scot is raising a legal action in the Court of Session in Edinburgh for the express purpose of challenging the Scottish Government’s attempt to redefine the word ‘woman’ (see below):

“… We are challenging the Scottish Ministers over the redefinition of “woman” in the Gender Representation on Public Boards (Scotland) Act 2018 which we believe is outside the legislative competency of the Scottish Parliament under the Scotland Act 1998 and in contravention of the Scottish Ministers’ duties under equality legislation… The new definition includes some men, while, remarkably, excluding some women. This cannot be allowed to stand… The Equality Act 2010 states that a woman is “a female of any age” and maintaining this definition is key to maintaining women’s rights and protections in law…”

forwomen.scot describes rationale on its website in the following terms:

– sex is immutable and is a protected characteristic;
– women are entitled to privacy, dignity, safety and fairness;
– women’s rights should be strengthened.

https://forwomen.scot

All quiet on the Western Front? Hardly … expect this issue to run and run.

Copyright Seán J Crossan, 4 February 2021

A sledgehammer to crack a nut?

football player in white and blue jersey shirt
Photo by Ryan Snaadt on Unsplash

Author’s note dated 11 March and 23 April 2021: the Hate Crime and Public Order (Scotland) Bill successfully completed Stage 3 of the parliamentary process at Holyrood by 82 votes for to 32 against. On 23 April 2021, the Bill received the formality of the Royal Assent.

Today, I was talking to a group of students about the fact that cultural factors can sometimes be a much more powerful driver towards changing society’s attitudes about certain issues.

Sometimes when Governments take a very legalistic approach to societal issues e.g. equality and discrimination, they can end up being accused of overkill or using a sledgehammer to crack a nut. A good example of a current controversy is the Hate Crime and Public Order (Scotland) Bill making its way through the Scottish Parliament.

The Bill is about to embark on Stage 2 of the legislative process

Lord Bracadale, a retired Scottish judge, was commissioned by the Scottish Government in 2017 to review the state of Scotland’s hate crime laws and many of his recommendations are to be found in the Bill.

A link to Lord Bracadale’s Report can be found below:

https://www.gov.scot/publications/independent-review-hate-crime-legislation-scotland-final-report/

Now, most reasonable people are going to say hate crime is an issue which should be tackled, but when you ask how it should be tackled that’s when things get controversial.

Critics of the Hate Crime Bill say that it will stifle free speech, but it’s supporters say that it will clarify the law. Who is right and who is wrong?

A link to a recent article on the controversy surrounding the Hate Crime Bill can be found below:

https://www.bbc.co.uk/news/uk-scotland-scotland-politics-53580326

The Scottish Government, of course, has been criticised in the past for passing laws to combat discrimination – think the Offensive Behaviour at Football and Threatening Communications etc (Scotland) Act 2012 which was eventually repealed on 20 April 2018.

The Scottish Government also had to put its proposals on the back burner  to make it easier for transgender people to self-identify in the face of opposition within the SNP and in society more widely. 

These are just some examples of the difficulties faced when you decide to go down the legal route. You can pass a law, but will people respect it and, more importantly, obey it?

Conclusion

When I was discussing the significance of culture versus the law this morning, what I meant by that is that organisations and individuals can often drive change in society much more profoundly – even when there is no legal duty to do so.

One example at the organisational level is that of Glasgow University’s recent attempts to confront and make reparation for its historical links with the Trans-Atlantic Slave Trade.

Individuals such as Glasgow City Councillor, Graham Campbell, have done a lot of good work to highlight the City’s historic links with the Slave Trade. Councillor Campbell has also taken a lead in pushing for the creation of a National Museum in Scotland to commemorate the victims of slavery.

Links to these stories can be found below:

https://www.facebook.com/BBCScotland/videos/glasgows-links-to-slavery-frankie-boyles-tour-of-scotland/514455532785635/

https://www.bbc.co.uk/news/uk-scotland-glasgow-west-49435041

Copyright Seán J Crossan, 6 January 2021

The long and winding Irish road?

A winding Irish road – Photo by Seán J Crossan

Could supporters of independence for Scotland succeed in their objective without the need to hold a second independence referendum or IndyRef2? Let me put it another way: could Scottish independence be secured without the need for the U.K. Government and Parliament to grant a Section 30 order under the Scotland Act 1998?

Joanna Cherry, a leading Scottish National Party MP and QC certainly seems to think so and, as a highly competent member of the Scottish Bar, she has a legal precedent to hand.

The precedent in question is the Anglo-Irish Treaty of which led to the creation of the 26 County Irish Free State and the 6 County State of Northern Ireland. Coincidentally, it was actually the 99th anniversary of the Treaty being ratified by the Irish Parliament on 7 January 1922.

A link to an article in The Scotsman about Joanna Cherry’s views on the Anglo-Irish Treaty can be found below:

https://www.scotsman.com/news/politics/scotland-could-skip-referendum-and-follow-irish-route-independence-says-joanna-cherry-3089669?itm_source=parsely-api

As a precedent, the Treaty is not, however, entirely unproblematic: it is an error to believe that a truly, independent Irish Republic was created in 1922 as a result of the Treaty. It was, in fact, not until 1949 that Éamon de Valera, Prime Minister (Taoiseach) of the Irish Free State felt sufficiently confident to break decisively with the United Kingdom. By this point, Britain had lost its position to the United States of America as the leading global power and former British Imperial possessions, such as the Indian Empire (modern day Bangladesh, India, Pakistan and Sri Lanka), had been granted independence.

More controversially, the Treaty was the direct result of Irish Republicans pursuing an armed struggle against the United Kingdom between 1919 and 1921 (the War of Independence) which had forced the British to come to the negotiating table. Although, it has to be conceded that, many members of the United Nations have gained their independence fully or partially as a result of armed struggles.

Arguably, in 1918-19, the United Kingdom was still the pre-eminent global power – it had emerged as a victor in the First World War and with an enlarged Empire.

That said, this situation hid considerable political and economic weaknesses on the part of the British; and Republican commanders, like Michael Collins and Éamon de Valera, recognised this and were determined to take full advantage in order to further Irish independence. The Anglo-Irish Treaty from the British perspective was, therefore, a considerable concession to Irish nationalism.

Where Collins and de Valera parted company was in their reading of where the Treaty might eventually lead in the immediate aftermath of the War of Independence. The Pro-Treaty Republicans (led by Collins) were convinced that this was the best outcome that they could hope to achieve in the current circumstances whereas the Anti-Treaty Republicans (led by de Valera) felt that one more push would secure the Irish Republic for which they yearned.

Michael Collins, de Valera’s comrade and later bitter enemy, made a pragmatic choice to back the Treaty (he had, after all, put his signature to the document).

Collins’ principal argument was that, although the Treaty fell far short of Republican demands, it provided the space to obtain greater freedom for Ireland. His beliefs would ultimately cost him his life, but his Pro-Treaty stance would prevail and would define the Island of Ireland politically and geographically for the next 100 years (the Island of Ireland is still split to this very day).

De Valera and his supporters were outraged because the Treaty represented a humiliation and a betrayal of their purist nationalist vision of a united Republic of Ireland comprising all 32 Counties.

In modern constitutional terms, Collins would be regarded as a gradualist. As a matter of political necessity, de Valera too would be forced to adopt a gradualist approach in his quest for the Holy Grail of Irish independence, but this would only come about following a crushing military defeat of the Anti-Treaty camp at the hands of Free State Forces.

The repentant revolutionary

In 1926, de Valera made a significant decision by abandoning the armed struggle by entering Irish constitutional politics when he established Fianna Fáil. Until that time, de Valera and his Republican supporters had followed a policy of absentionism whereby they refused to take seats in the Irish Parliament. For the nearly the next quarter of a century, de Valera and Fianna Fáil would work towards the creation of an Irish Republic using the constitutional apparatus of the Free State.

This dramatic change of strategy was due, in a large part, to de Valera’s defeat in the Irish Civil War (1922-23) where opposing wings of the Irish Republican Army and Sinn Fein had split and quarrelled (violently) in their response to the Anglo-Irish Treaty.

A constitutional anomaly?

According to the eminent Irish historian, Tim Pat Coogan*, the Irish Free State was something of a constitutional anomaly in the sense that it had an imprecise legal status when compared to the other self-governing Dominions of the British Empire such as Australia, Canada, New Zealand and South Africa.

According to David Lloyd George, Prime Minister of the United Kingdom and one of the signatories of the Anglo-Irish Treaty, the term ‘Dominion’ was “something that has never been defined by Act of Parliament, even in this country, and yet it works perfectly.” (Mansergh, 1934**)

The Irish people would not share Lloyd George’s confident assertion: they knew what the Free State was not i.e. the free and independent Irish Republic for which many of them had fought. Lloyd George and his British co-signatory, Winston Churchill, were fiercely opposed to the creation of anything resembling an Irish Republic.

In any event, whatever its precise legal status, the creation of the Irish State had come about in profoundly different (not to say stark) circumstances from the other Dominions of the British Empire. These other Dominions had come into existence by way of an evolutionary process marked by incremental change. There can be no doubt that the Irish Free State had been created as a result of a violent revolutionary struggle.

The territory of the Free State would initially comprise all 32 Irish Counties, but the 6 Northern Counties with their Protestant and Unionist majorities speedily exercised their right to secede from the new State. The partition of the Island of Ireland, of course, continues to this very day.

Equally distasteful to Republican sentiments was the fact that King George V and his successors would continue to be King in Ireland (the Irish Head of State). Still more galling for Irish Republicans, those elected members of Dáil Éireann (the lower House of the Irish Parliament) and Seanad Éireann (the upper House of Parliament) would have to take a personal oath of allegiance to George V and his successors:

Article 17.

The oath to be taken by members of the Oireachtas [Irish National Parliament] shall be in the following form:—

I _______________ do solemnly swear true faith and allegiance to the Constitution of the Irish Free State as by law established, and that I will be faithful to H. M. King George V., his heirs and successors by law in virtue of the common citizenship of Ireland with Great Britain and her adherence to and membership of the group of nations forming the British Commonwealth of Nations.

Such oath shall be taken and subscribed by every member of the Oireachtas before taking his seat therein before the Representative of the Crown or some other person authorised by him.

The King and his successors would be represented at official functions by a Governor General. It is not an understatement to say that the British Crown was an anathema to Irish Republicans – irrespective of their views on the Treaty.

There would also be a continuing British military presence on Irish Free State territory, namely, the 3 naval bases of Fort Dunree (County Donegal) and Bere and Spike Islands (County Cork). The Free State Government would eventually gain control of these bases in 1938 – a fact which made Winston Churchill, then a backbench Conservative MP, apoplectic. He would argue, not without justification, that these bases would be vitally important for Britain in the event of any future hostilities with Nazi Germany.

Fort Dunree on Lough Swilly, Donegal and its superb, natural anchorage – Photo by Evan McMenamin on Unsplash

All of the above represented significant obstacles to the creation of an independent Irish State and it is often now forgotten that it was the genius of de Valera who used the constitutional architecture of the Treaty to undermine British influence in the 26 Southern Irish Counties.

Conclusion

In 1922, the prospects of the creation of an Irish Republic were by no means certain. The Irish Free State, created by the Anglo-Irish Treaty, was undoubtedly a constitutional anomaly.

Éamon de Valera was forced to make the long journey from revolutionary firebrand to establishment politician. This was due, in a large part, to his defeat in the Irish Civil War (1922-23) where opposing wings of the Irish Republican Army and Sinn Fein had split and quarrelled (violently) in their response to the Anglo-Irish Treaty.

It would take considerable skill and patience on the part of de Valera and his supporters in Fianna Fáil to achieve the goal of an Irish Republic. It should be recalled that it was only in 1949 that an Irish Republic (minus the 6 Northern Counties) came into existence.

These are factors which supporters of Scottish Independence who are attracted to Joanna Cherry’s argument would be well advised to study in detail. Cherry advances an interesting precedent, but it is not without its problems. The Anglo-Irish Treaty of 1921 does not provide a straight road to Scottish independence. There were many twists and turns in this road before a sovereign Irish Republic emerged and, even, then this was a lesser entity due to the decision by the Northern Six Counties to remain part of the U.K.

Further reading:

The Irish Civil War by Tim Pat Coogan and George Morrison (Weidenfeld & Nicolson, 1998)

The Irish Free State: Its Government and its Politics by Nicholas Mansergh (George Allen & Unwin, 1934). Available at:

https://archive.org/stream/irishfreestate032460mbp/irishfreestate032460mbp_djvu.txt

A link to the Free State Constitution can be found below:

http://www.irishstatutebook.ie/eli/1922/act/1/enacted/en/print

Related Blog articles

https://seancrossansscotslaw.com/2019/12/15/law-or-high-politics/

https://seancrossansscotslaw.com/2019/04/26/bring-it-on-or-indyref2/

https://seancrossansscotslaw.com/2019/06/02/a-step-closer-indyref2/

Copyright Seán J Crossan, 18 January 2021