ON Monday, January 12, something happened at the Court of Session that should unsettle anyone who believes Scotland has a functioning legal system. Strip away the live blogs, the chants outside, and the optimism or pessimism of the crowd, and what remains is something far more uncomfortable.
This hearing was never about Palestine Action. It was about how power operates in the UK when Scotland stops behaving like a subordinate and starts acting like a jurisdiction with its own mind.
The UK Government’s approach made that clear. They didn’t turn up to defend the substance of the ban. They didn’t explain why this group meets the threshold for terrorism. Instead, they tried to stop the case from existing – using jurisdictional blocks designed to keep Scottish courts from touching the question. That choice alone shows where the real anxiety lies.
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Then came the argument itself. Westminster insisted there was “no Scottish dimension” and that Scotland should step aside because the issue is already before the courts in England and Wales – even though the consequences will be carried here.
That isn’t a legal contradiction by accident. It’s a habit of mind. Scotland matters when decisions are enforced and consequences absorbed. Scotland disappears the moment judgment is required.
The judge’s response exposed the tension. The key moment wasn’t a ruling or a flourish. It was the visible unease with an argument designed to stop the case from getting off the ground at all.
Not because of tactics, but because of what the UK Government was asking the court to accept: that Scotland should apply the full force of terrorism law while being denied the right to test whether that use of power is lawful. Not to lose the case, but to be shut out before it begins.
If Scottish courts can’t even hear a challenge when Scots are the first to be affected, then those courts are no longer a constitutional safeguard. They become a delivery system. Law flows one way. Consequences flow from the other.
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This goes to the heart of devolution. The Scotland Act promised autonomy in defined areas while reserving ultimate authority to Westminster. What this case shows is how thin that autonomy becomes in practice.
Westminster reserves the power. Scotland enforces it. As long as Scotland complies, the arrangement looks stable. The moment Scotland’s legal culture, political judgment, or human rights instincts diverge, the system snaps shut. Scotland is told to apply the law and stop asking questions.
That isn’t a partnership. It’s a hierarchy. It’s hard to watch this unfold and believe the next step will be any different.
A country that can arrest, prosecute, and administer punishment, but is told it cannot even examine whether the law being used is lawful or proportionate, is not self-governing in any meaningful sense. It is administering someone else’s decisions.
What happened on Monday didn’t create a constitutional crisis. It revealed a standing one – calmly, procedurally, in a courtroom where the UK Government argued that Scotland should enforce first and question never.
That is the Scottish dimension they are desperate to deny. Because once you admit it, you admit that devolution was never designed to cope with disagreement. And once disagreement appears, independence stops being a slogan and starts looking like a practical necessity.
James Murphy
Bute
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