Humza Yousaf, the Minister for Europe and International Development of the Scottish Government, recently wrote to the Malawian High Commision in London to intercede for two Malawian citizens arrested in Malawi for alleged offences committed in Malawi, as reported by Scottish nationalist newspaper The Herald.
Having copied in the junior minister at the Foreign and Commonwealth Office, James Duddridge MP, on the correspondence, Mr Yousaf in due course received a response from Mr Duddridge, politely asking him to clear all such correspondence with the Foreign and Commonwealth Office in future.
Mr Yousaf's petulant tweet in response to this polite, even bland, corrective is remarkable.
Below are five straightforward implications of this correspondence which should be obvious enough to any thinking layman, let alone to any Crown minister, diplomat or properly-informed civil servant.
In the below, I shall refer to Mr Yousaf in terms of his collective responsibility, using the legal term that the Scottish Government uses for itself in statutes and in court cases: "the Scottish Ministers". This is necessary for accuracy, since the more widely-encountered terms "the Scottish Government" (used by the SNP to the public), its previous equivalent (coined at the time of the 1998-99 settlement) "the Scottish Executive", and even "the Crown" have no firm meaning in Scots law, at least in the reality of how post-2007 Scotland is governed and how its government is held to account by the people and the courts.
In particular, it should be borne in mind in the below consideratons that Scottish Ministers have bound themselves at a constitutional level always to act according to the dictates of "human rights" legislation, and that they have undertaken that they will always bear collective responsibility for all their actions and policy decisions (including correspondence). This model of interchangeable ministers acting as a single legal personage, which is one facet of what was dubbed "the Scottish model of government" by Sir John Elvidge when he was Permanent Secretary in Edinburgh (and has been enthusiastically sold by him to foreign jurisdictions from the Isle of Man to the People's Republic of China since his retirement from the Civil Service), far exceeds* the understanding of ministerial collegiality that the English-speaking world has witnessed heretofore.
1. There is now nothing to stop any Commonwealth High Commission or foreign nation's embassy in London from taking this correspondence as a precedent to refuse FCO consular access or representation rights to a Scot arrested abroad. "Your name looks Scottish, so it is Edinburgh that we will be dealing with about you," will be a perfectly legitimate quid pro quo for what has happened. The fact that there are no trained diplomats, foreign-policy civil servants or foreign-state analysts working as such in the Edinburgh apparatus will then prove an unfortunate reality for detained Scots and for other British arrestees taken for Scots.
(1b. The realisation across the prison systems and capitals of the world that Scotland is now in the diplomacy business will prompt derision and disbelief that Scotland has no diplomatic service as a state, especially when it becomes clear that Edinburgh cannot answer basic questions by foreign diplomats about its letters, such as "Are we to treat this a demarche or a note verbale?". It will also lead to considerable international-law wrangling over the status of any foreign physical presence that the Scottish Ministers may designate their 'representation', 'mission' or 'embassy' abroad, and of the 'consular' or 'ambassadorial' staff working therein. Such staff, their families and their property may even be regarded as spies (in the espionage jargon, "illegals") by some countries, since they will be construed as acting as if covered by diplomatic immunity when in fact they lack any such treaty-conferred status due to the FCO being the acknowledged diplomatic body for the United Kingdom. Sovereign signatories of treaties for the mutual protection and recognition of bona fide diplomats are perfectly within their treaty rights to expel, imprison or even execute such "illegals" for subversion and to seize their property without going through their national judicial routes.)
2. The Scottish Ministers have taken upon themselves the role of interceding for foreign citizens, yet when the FCO or any other properly-constituted national foreign ministry writes such protest letters, the wording is proposed and edited by multiple layers of specialist civil servants and diplomats expert in the politics and culture of the foreign nation concerned. In the Scottish Ministers' new model, diplomatic correspondence is sent by a single politician in his own right with no advice, nuancing or correction by civil-service experts, unless perhaps it be by designated worldwide-remit "human rights" champions (cultural-Marxist entryists?) within the Civil Service in Edinburgh. Such correspondence thus lacks the status of the expression of a nation or an administration; it is the expression of an individual, for all that he may conceive of himself as representing the Scottish Ministers collectively or the will of the Scottish people. The worldwide standard drafting safeguards are lacking.
3. As perhaps was to have been expected from a government that adulates Scandinavia and wishes to be thought a part of the Greater Scandinavian "arc of prosperity", the Scottish Ministers are making an evident move towards the postmodern, post-national diplomatic model of Sweden. The Swedish Foreign Ministry (and, to a lesser extent, that of Norway) has made it an explicit aim of its own existence to champion "human rights" regardless of borders or jurisdiction over the persons concerned. Given that it was a Swedish-led victory in the Thirty Years' War which forced the "Holy Roman Empire" (the Roman Catholic leadership of the German states) to concede by treaty in the Peace of Westphalia (1648) that no state had the right to interfere in the processes of law and religion outwith its own territory, it is ironic but perhaps inevitable that Sweden, being so ahead of the curve, should be the first nation to have let this notion rot in favour of unfettered interventionism.
4. If Sweden is the furthest-advanced country in terms of abolishing borders for the purposes of diplomacy, the country with the most aggressive extraterritorial judicial activism is surely Spain, most notably in the person of Judge Baltasar Garzón. Yet the Madrid that issues meaningless warrants for General Augusto Pinochet for alleged crimes committed in Chile is the same Madrid that is pulling out all the stops it can in international law to prevent Catalonia (and to a lesser extent the Basque Country) from representing itself on the EU and world stage as a sovereign power. Catalonia, for instance, even though it is currently governed by politicians who are seriously considering a unilateral declaration of independence, would never have the gumption to correspond with foreign governments as equals. (Nor would the SNP's other major European ally, the Government of Flanders, ever dream of so flagrantly breaching rigid diplomatic convention and international law.) Has Edinburgh thought through the implications of having the federal governments of Spain and Belgium, institutions loathed by hardcore SNP supporters as the nemesis of the Catalan and Flemish secessionists, as bedfellows in the interventionist club?
5. Her Majesty's Government now has no leg to stand on to protest against foreign governments writing to Edinburgh to interfere with criminal or civil cases in Scotland, possibly without even a courtesy copy being sent to the FCO. By Mr Yousaf's direct precedent, this interference could perfectly well concern cases of sexual offences or religious liberty, and could be vexatious or driven by world revolutionary ideology.
* (By way of illustration: the blank forms for applications by civil servants or police to Her Majesty's Government to obtain most kinds of search or interception warrants contain the signature line "One of Her Majesty's principal Secretaries of State" and can just as well be signed by the Transport or Health Secretary as by the Home or Foreign Secretary in the latter's absence, but in this old-established system there is no diminution of individual ministers' liability for their actions separately from their corporate role in government.)