Holyrood will revoke the Treaty of Westphalia and adjudicate on the consequences.
The Scottish Government's Secretary of State for Europe and International Development, Humza Yousaf, recently wrote to the Malawi High Commission in London to intervene on behalf of two Malawian nationals who have been arrested on suspicion of committing crimes in Malawi. The Herald, a Scottish nationalist newspaper, reported:.
Yousaf sent a copy of this communication to James Duddridge MP at the Foreign Office, and eventually received a reply from Duddridge politely requesting that he refer all such communications to the Foreign Office in future.
Mr. Yousaf A disgusting tweet The response to this polite and inoffensive correction was remarkable.
Below are five immediate implications of this letter that should be abundantly clear to any thoughtful layman, let alone a Minister of State, a diplomat or any properly informed civil servant.
In what follows, I will refer to Yousaf's collective responsibility in terms of the legal term used by the Scottish Government to refer to itself in statute and court cases: “Scottish Ministers”. This is necessary for precision, because the more widely used term “Scottish Government” (used by the SNP to refer to itself as a public figure), or its earlier synonym “Scottish Government” (coined at the time of the 1998-99 settlement), or even “The Crown”, have no robust meaning in Scottish law, at least in the way Scotland has been governed since 2007, and in the reality of how the public and the courts hold the Government to account.
In particular, in the following considerations it is important to bear in mind that at a constitutional level Scottish Ministers have committed themselves to acting at all times in accordance with the provisions of “human rights” law, and that they have also committed themselves to being collectively responsible at all times for all their actions and policy decisions (including communications). This model of interchangeable Ministers acting as a single legal entity is one aspect of what Sir John Elvidge termed the “Scottish model of government” when he was Permanent Secretary in Edinburgh (and which he has enthusiastically marketed to foreign jurisdictions from the Isle of Man to the People's Republic of China since retiring from the civil service), and it goes far beyond any understanding of ministerial cooperation that the English-speaking world has previously seen.
1. There is now nothing to stop the Commonwealth High Commission or foreign embassies in London using this letter as a precedent to deny Foreign Office consular access or representation to any Scots arrested overseas. “Your name sounds Scottish so we will negotiate with Edinburgh about you” is a perfectly legitimate compensation for what has happened. The fact that the Edinburgh establishment has no trained diplomats, foreign policy civil servants or foreign national analysts to do such a job will be an unfortunate reality for any detained Scots or other arrested British nationals who are perceived to be Scottish.
(1b. If it were recognised in prisons and capitals around the world that Scotland does have a foreign service, there would be widespread ridicule and disbelief that Scotland has no national foreign service, especially when it becomes clear that Edinburgh cannot answer basic questions from foreign diplomats about Scottish letters, such as “Should this be treated as a démarche or a note verbale?”. It would also be difficult to determine the physical presence abroad, which Scottish Ministers may designate as overseas “representations”, “missions” or “embassies”, and the “consular” or “ambassadorial” positions working there. There will also be considerable international law wrangling over the status of such personnel. Such personnel, their families and property may be considered by some countries as spies (“illegal” in espionage jargon) because the Foreign Office, being a recognised diplomatic organ, will be interpreted as acting as if they were covered by diplomatic immunity, even though they do not in fact have the status conferred by the treaty. In the case of the UK, sovereign signatories to the Treaty on the Mutual Protection and Recognition of Bona Fide Diplomatic Agents are fully within the treaty's rights to expel, imprison or even execute such “illegal” persons for subversion, and to seize their property, without going through domestic judicial channels.
2. Scottish Ministers have a role to mediate on behalf of foreign citizens, but when the Foreign Office or other appropriately constituted foreign service writes such a letter of protest, the wording is suggested and edited by several professional civil servants and diplomats familiar with the politics and culture of the foreign country in question. In the new model of Scottish Ministers, diplomatic documents are sent by a single politician without any expert advice, nuance or correction by civil servants, except perhaps by a “human rights” advocate with global authority (a Cultural Marxist entrant?) in the Edinburgh civil service. Such documents therefore lack the status of an expression of the state or of the administration. They are the expression of individuals who consider themselves to be collectively representing Scottish Ministers or to be representing the will of the Scottish people. The safeguard of a global standard of drafting is lacking.
3. As might be expected from a government that worships Scandinavia and wants to be seen as part of a Greater Scandinavian “Arc of Prosperity”, Scottish ministers are clearly moving towards the Swedish postmodern, post-national model of diplomacy. The Swedish Ministry of Foreign Affairs (and to a lesser extent the Norwegian Ministry of Foreign Affairs) makes it the explicit purpose of their existence to uphold “human rights” regardless of borders or the jurisdiction of the parties involved. Given that Sweden’s victory in the Thirty Years’ War forced the “Holy Roman Empire” (the Roman Catholic leader of the German states) to acknowledge in the Treaty of Westphalia (1648) that no state has the right to interfere in legal and religious processes outside its own territory, it is ironic, but perhaps inevitable, that Sweden, which was ahead of its time, was the first country to corrupt this idea and endorse unlimited interventionism.
4. If Sweden is the most advanced country in terms of diplomatic border abolition, the country with the most active extraterritorial judicial activism is undoubtedly Spain, the most prominent example of which is the person of Judge Baltasar Garzon. But the Madrid that issues a meaningless arrest warrant for General Augusto Pinochet for crimes he allegedly committed in Chile is the same Madrid that is using all the tools in international law to prevent Catalonia (and, to a lesser extent, the Basque Country) from representing itself as a sovereign state on the EU and world stage. Catalonia, for example, is currently governed by politicians who are seriously considering a unilateral declaration of independence, but would never dare negotiate on an equal footing with a foreign government. (The Flemish government, the SNP's other main European ally, would also never dream of so blatantly breaking strict diplomatic treaties and international law.) Has Edinburgh contemplated the implications of inducting into the interventionist club the federal governments of Spain and Belgium, hated by SNP ardent supporters as the sworn enemies of Catalan and Flemish separatists?
5. Her Majesty's Government now has no basis to protest against a foreign government writing to Edinburgh to interfere in a Scottish criminal or civil case. Probably no thank you letter was even sent to the FCO. Given Yousaf's direct precedent, this interference could well be a case of sexual offences or religious freedom, it could well be nuisance or driven by the ideology of world revolution.
* (For example, the blank form on which civil servants and police apply to Her Majesty's Government to obtain most search and interception warrants has a signature line reading “one of Her Majesty's Principal Ministers of State”, which can be signed by the Secretary of State for Transport or the Secretary of State for Health, or, in the absence of the Secretary of State for the Home Secretary or the Foreign Secretary, by the Secretary of State for Foreign Affairs, but this long-established system does not relieve individual ministers of responsibility for their actions apart from their collective roles in Government.)
