“The Treaty does not say what constitutional law would govern the new Union, probably because the issue was obvious”
Actually, it might just be the opposite. Perhaps because of the clash between England and Scotland in the matter of constitution, they could not use constitutional law as supreme, therefore they adopted the “parliamentary sovereignty” fudge instead. Maybe they thought they could circumvent the thorn on the side that must have been for them the CoR/Scotland’s constitution by claiming Westminster was sovereign.
But the problem with this is that The Uk parliament is a product of a treaty and that CoR is a fundamental condition of the Treaty. In line with the “pacta sunt servanda”, Westminster cannot simply overrule it without destroying the treaty. The CoR is over the parliament’s and monarch’s perceived sovereignty.
According to google, “The core difference between parliamentary sovereignty and constitutional supremacy is where the ultimate authority for law-making lies. In parliamentary sovereignty, it is the legislature; in constitutional supremacy, it is the constitution of a state”
This has been extracted from the paper “Scotland’s right to choose: putting Scotland’s future in Scotland’s hands”, published in the Scottish government website on 19 Dec 2019:
“Scotland has a historic constitutional tradition different from that described by the doctrine of parliamentary sovereignty. In Scotland, sovereignty is traditionally said to lie with the people, and to favour a limited rather than absolute form of authority, with the right to rule being subject to the consent of the people.[15] The question has been asked why the constitution of a Union state should reflect only one of the constitutional traditions of its constituent nations”
Does Westminster’s perceive parliamentary sovereignty extend to Scotland’s constitution? Only if we let them.
I think adopting the concept of “parliamentary sovereignty” might have been perceived as the path of less resistance. But if parliament sovereignty is above constitutional law and the Treaty of Union is part of constitutional law, then there is an door open there.
This jewel was included in Ms May’s Speech on the Union. 4 July 2019:
“our Union rests on and is defined by the support of its people. It is not held together by a rigid constitution or by trying to stifle criticisms of it. It will endure as long as people want it to – for as long as it enjoys the popular support of the people of Scotland and Wales, England and Northern Ireland”
According to the Uk gov website in relation ot parliamentary sovereignty: “Generally, the courts cannot overrule parliament’s legislation and no Parliament can pass laws that future Parliaments cannot change”
So we can repeal the Act of Union with England.
England MPs can vote to repeal England’s act of union as many times as they wish, but they cannot lawfully repeal Scotland’s Act of union with England nor can I see how they can lawfully stop it. That has to be a matter for Scots MSPs or MPs (or both).
The critical point here is to establish in what parliament the Act of Union with England can be repealed.
To me it is obvious that is Holyrood because the Act of Union with England is nothing to do with England MPs and it was passed in Scotland’s parliament. But having said that, the Act of security was also passed in Scotland’s parliament but repealed in Westminster , presumably with consent of Scotland’s MPs/Lords?
“Mia would have advised that really, Article I did not involve an incorporating union”
Because it does not. Theresa May’s comment in her speech quoted above is already telling you. She also said this during the speech: “Political Union was achieved under the last Stuart monarch, Queen Anne, with the creation of the Kingdom of Great Britain”. A de nuovo Kingdom the result of the union of Scotalnd and England, not the incorporation of Scotland into England.
The minute the Treaty tells you a brand new parliament with a different name will be formed, you know it is not an “incorporating” union. If it was an incorporating union, the treaty would indicate Scotland would be annexed/assimilated to.by England as part of the Kingdom of England’s territory. In an incorporating union there would not be any need for England to end its parliament nor to change the flag, nor to change the seal. If Scotland had been incorporated into England, then England would have snatched Scotland’s crown, records and would not allow Scotland to have a mint and even less printing different notes. Look at Wales. That was definitely an “incorporating union”.
The Union between the two sovereign states created a different legal entity and the proof of this is that it was given a different name it has a different seal and a different flag. When you have in circulation in Scotland completely different notes to England the last thing that comes to your mind is that it is an “incorporating” union where Scotland has ceased to exist. It may well be what the negotiators on behalf of England were seeking to incorporate Scotland into England, but the evidence 300 years later tells us this never happened.
“(that theory would have to await the coming of Scotland’s oil)”
Of course. Because it was at that point when it became clear the extent of Scotland’s wealth and of paramount importance to claim that all what was Scotland’s was England’s and all what was England’s was still England’s.
” and that Scotland and England would continue as before”
How much have their territorial boundaries change since 1707 apart from the theft of Scotland’s territorial waters by Labour prior the reconvening of Scotland’s parliament?
“Article III was not to feared as the Scots could simply continue with their Sovereign Parliament”
Where in the Treaty does it say that Scotland cannot have a parliament? Because if it does, then we have been in direct breach of the Treaty since Holyrood was reconvened and Wales opened its parliament. So are we or are we not in breach of the treaty of Union, William?
“Nothing has changed!!”
And nothing has changed. I have just been reading the speeches in the house of commons from April 1804 and guess what they were talking about? “Scotch Home Rule”.
In 1804 they were already discussing Home Rule for Scotland. I am sure they were discussing it even before that year but I cannot find records prior to 1804. In 1713, 6 years after the union, there was already an attempt to terminate it by Scotland. So much for an incorporating union where Scotland and the idea of Scotland had disappeared, don’t you think?
I have found out that bills about Home Rule for Scotland were also attempted in 1894, 1895, 1908, 1911, 1920 and 1934. Of course there was another in 1978 and probably some more in between. Fast forward 204 years and we still had Gordon Brown talking about Home Rule and the entire Government propaganda apparatus making us believe that if we voted no we would get home rule. We have recently heard the infamous words emanating from the guts of the SNP as well. 300 years and nothing has changed. Scotland continues to demand for more autonomy.
It seems like either there never was an “incorporating union” or if there was, it was very unsuccessful because the only thing it has managed to incorporate is the realisation that after 300 years and despite so many attempts, it cannot tame Scotland.
MY COMMENTS
Throughout this excellent Claim of Right series both the author Sara Salyers and the regular Yours for Scotland columnist Mia have fully participated answering comments and explaining a lot of quite extensive comment on this site. From my records this amounts to over 500 comments in the last week. So thanks are very much due to them both as I know from comments I have received that many readers found the debate this created very worthwhile and enjoyable. I would also like to congratulate all the readers and participants in this series of articles. Despite dealing with a technical subject, capable of stirring up strong emotions, even controversy, the debate has been exceptional in that all debate has been conducted, whether agreeing or challenging, in a most respectful and decent manner. It is a fine example of social media educating, debating and discussing very important matters and also being overwhelmingly constructive in the process. I have just used a lot of words to express my admiration and thanks to you all. You are a credit to Scotland.
I have friends from Paisley coming to stay with us next week. They are coming off a cruise that they are enjoying and Celia and I are driving down to Miami to pick them up and bring them to our home in Clearwater for a week so my blog will not be very active for the next couple of weeks. At least that is the plan but events can often upturn the best laid schemes of mice and men!
FINALLY AN IMPORTANT PROGRAMME
Sara Salyers, the author of the paper and myself and others will discuss with Roddy in the excellent Through a Scottish Prism programme on the YouTube channel the many issues raised in the Claim of Right series. it will be streamed as usual from midday Sunday.
I am, as always
Yours for Scotland
BEAT THE CENSORS
Sadly some sites had given up on being pro Indy sites and have decided to become merely pro SNP sites where any criticism of the Party Leader or opposition to the latest policy extremes, results in censorship being applied. This, in the rather over optimistic belief that this will suppress public discussion on such topics. My regular readers have expertly worked out that by regularly sharing articles on this site defeats that censorship and makes it all rather pointless. I really do appreciate such support and free speech in Scotland is remaining unaffected by their juvenile censorship. Indeed it is has become a symptom of weakness and guilt. Quite encouraging really.
FREE SUBSCRIPTIONS
Are available easily by clicking on the links in the Home and Blog sections of this website. by doing so you will be joining thousands of other readers who enjoy being notified by email when new articles are published. You will be most welcome.
YOURS FOR SCOTLAND 
Thank you so much Mia.
I would make one observation: Holyrood is not the reconvened Scottish parliament. It is the bastard child of Westminster, lacking the authority of the old Scottish parliament but retaining the medieval unicameral structure, fudged with an ineffective committee system. State and justice are not separated in the best traditions of the 17th century – we have a medieval relic with its teeth pulled out. This broken relic is facilitating Sturgeon in her abuse of the powers of the state.
LikeLiked by 16 people
Absolutely, Marion. Scottish people in the 17th century had far more say over their government than we have today which is heartbreakingly ironic when you think how many people imagine the same totalitarian, feudal system in Scotland as in England at that time. What influence do our councils have over government policy? But the Burgh Convention, at which representatives of the Burgh Assemblies met to decide policy and response to government policy (not laird or a noble in sight by the way), had direct access to the parliament, the Convention when it sat and the various parliamentary committees. It forced through legislation protecting the interests of both its members and ‘the common good’. It brought back the news and often the pamphlets about what parliament and the monarch were up to, what laws were passed or opposed etc. and then let the towns decide what they thought and how to respond. Imagine our town councils doing that today?
As for Holyrood, you are right and I am sad to say it. It would make things so much easier if Holyrood were answerable to the people of Scotland because we could ignore Westminster, fire of the ‘grievances’ over their violation of our rights and liberties and replace the lot of them. But they are not. And I will explain what I have no doubt you already understand very well in a separate response to this brilliant post.
LikeLiked by 10 people
That is very interesting – thanks Sara and I look forward to hearing more
LikeLiked by 7 people
How does desuetude affect constitutional statutes of the pre 1707 Scots Parliament?
LikeLike
Holyrood is not the Scottish parliament reconvened – it is the child of Westminster. The old Scottish parliament did not defer to Westminster and hold a poorly judged subset of powers. The powers of the old Scottish parliament are I believe to be found in the cohort of Scottish MPs, accepting that some of those powers now reside with Holyrood. Westminster argues that all Scottish issues are UK level issues, thereby removing the democratic rights of our MPs. It is an evil farce and any international court would judge it to be an evil farce if we had the guts to ask them.
LikeLiked by 8 people
Holyrood is not the child of Westminster, it is the child of the sovereign people of Scotland who informed Westminster of their decision to re-instate a Scottish parliament, via a referendum called for that purpose. As I’ve pointed out before, Westminster was only the midwife, not the decision maker, and not a parent. It did not build Holyrood from its own choice, it was forced to. If Westminster had any choice it would never have done so.
Not that that stopped them from doing their level best to throw as many sabots into the workings and powers of our Parliament as they thought they could get away with.
Holyrood is the only legislative body on the planet which is elected solely by the sovereign people of Scotland, and no other body on the planet has anything remotely resembling a decent claim to speak for Scotland, and none a better claim!
It is obvious that when Scotland chooses to resume its place as an independent northern European country, and the necessary negotiations with Westminster re the settlement of England’s debts to us, along with reparations for the grevious harm done to Scotland, its people, its culture, and its economy over three hundred plus years take place, it will be that Parliament in Holyrood that Westminster will be negotiating with.
Nobody in their right mind would insist we must somehow resurrect the old one as being the only genuine Parliament of Scotland, and require that it must replace the ‘pretendy’ new one we called into existence more than two decades ago with Westminster’s reluctant assistance.
Accepting that the Holyrood Parliament is the old one reconvened is a perfectly sensible position to take for all sorts of practical reasons. Anything else is just more silly and mischeivous and sulking sabot throwing by the usual culprits. On that note, taking it as read that Holyrood is the old Scottish Parliament rejuvenated, then as such it has also resumed its status as one of the parents of the parliament at Westminster. Isn’t karma wonderful? 😀
LikeLiked by 3 people
Desuetude affects statutes but cannot affect the constitution. Courts may rule on whether or not something is constitutional but not on the constitution itself, written or unwritten. Thus the act of salvo may be ruled as having passed into desuetude but the constitutional principle of the protection of civil rights and liberties which this act expressed, cannot. Hope that helps.
LikeLiked by 8 people
But the UK parliament can of course change the constitution if it so wishes and has done so frequently in the past. If a court finds that the government is acting in an unconstitutional manner, the government can then, assuming it has the support of parliament, pass legislation that effectively changes the constitution and then proceed with what it was doing in the first place. In the UK Parliament is sovereign, not the constitution whatever that may be.
LikeLiked by 1 person
Daveytee19 But that is the whole point of this paper. In England parliament has the right to make the constitution. In Scotland there exits a constitution, identifiable from the time of Bruce and traceable before that, cited – not created – in the CoR and thus given written and statutory force, ratified by two parliaments as a standing condition of the Union, understood as being preserved in the contract that we call the treaty and therefore out of the reach of the UK parliament. What passes often masquerades as a legal argument is no such thing; it is nothing more than ‘we are bigger and have more MP’s than you so we can say anything we like and you have to lump it”, sometimes wearing fancy dress and calling itself ‘real politik’.
Whatever the bully does and however long he does it, it does not become legal because he then says, “I have all the weapons and all the power and I make the law”. At the extreme end of this scenario you can think of Nazism in Germany and Apartheid in South Africa. The point of knowing what is morally and legally right is not because it will persuade the bully to do the right thing. It is is because the more people recognise the crime being committed, the more they begin to come up with their own methods of achieving freedom from the tyrant.
LikeLiked by 4 people
In this very interesting article Mia points to May asserting the only reasonable and tenable position that this is a voluntary union. And yet this s30 nonsense is refused? So we have to deal with this duplicity and identify where our authority lies.
Mia goes on to say:
England MPs can vote to repeal England’s act of union as many times as they wish, but they cannot lawfully repeal Scotland’s Act of union with England nor can I see how they can lawfully stop it. That has to be a matter for Scots MSPs or MPs (or both).
This, I believe, is very important and the authority lies with our MPs – in the parliament where the constitutional powers are held. The UK parliament only gives proportional representation to Scottish MPs for UK matters. For Scottish matters the authority is and always was entirely held by our own MP.s EVEL points to this mechanism being acknowledged for England. For those powers that are not devolved this mechanism must equally apply to Scotland. Unfortunately we have sent the SNP to Westminster.
LikeLiked by 9 people
We need a change in mindset! Far too many Scots still approach the issue as how can we leave” instead of simply stating our Independence.
We discuss currency, monarchy, trade, etc.,. endlessly and roll in the mud with the BritNats who enjoy it.
If you accept the need to answer every BritNat challenge to Independence then it will never be achieved.
Would you enter into years of Q&As with a Bank when you decide to change? It was my money they were using and it is none of their business why I’m moving my account. I probably wouldn’t have moved my account if they had not tried to fleece me.
A Treaty was executed under the Colonial pressure of bribery, threat and reward. WE simply wish to end it.
Almost a third of the current Nations in the UN were told by London that they would never manage without them. They didn’t listen….why are we?
We are already a Nation. It is for us to decide our policies as other Nations do.
LikeLiked by 13 people
The internationally recognised path to exit the union is, I am sure, easily seen by everyone but ourselves. It is crystal clear in the discussions here and elsewhere and also in international laws to support nations that have a fraction of our held rights. We need competent leaders and the nuSNP is very much NOT that. We also need the people to want this – if it was not for the authoritarian, incompetent nightmare currently self identifying as FM I am sure YES would be north of 70% by now.
LikeLiked by 12 people
So what do you think the internationally recognised path to exiting the union is? It certainly isn’t crystal clear from the discussions here as far as I’m concerned, and I’m inclined to agree with William Ross that the only way to independence is through negotiation with Westminster.
Until I read the postings on here I thought that the Scots did indeed have a unique form of sovereignty which would be relevant in the fight for independence. Unfortunately, having read most of the posting here, I no longer believe that. As I see it, and no doubt I’ll be corrected if I’m wrong, those who place faith in the claim of right appear to believe that Independence can come about if Holyrood has a majority of Indy-supporting MPs and NS or whoever happens to be leading the party at the time stands up, waves a copy of the Claim of Right in the air, and announces that as a result of the claim of right and deficiencies in the Act of Union, Scotland is now independent. Would that might be the case, but of course it would be utterly ineffective and would be reognised by hardly anybody, even in Scotland.
So please: what would be an effective internationally recognised way for Scotland to exit the union? A section 30 order and a successful referendum would be one, as would a supreme court decision that Westminster’s consent was unnecessary. Less certain would be a UN declaration that Scotland should be permitted to take the necessary steps to proceed to independence, but I say less certain because Westminster isn’t very good at following such UN resolutions – ask the Chagos islanders – and would no doubt still put every possible obstacle in Scotland’s way.
LikeLike
.. and I agree that asking us what exchange rate we will use and what the tax bands are is just a trap to make independence look reckless. No-one has ever answered these questions as they form a new state. The trick they play is to demand answers to questions that require agreement from the UK – then they invalidate any answer given by refusing to agree. Fool me once …
LikeLiked by 12 people
Great point.
LikeLiked by 5 people
Marrionl99
👏👏👏👏exactly!
LikeLiked by 5 people
Reblogged this on Ramblings of a now 60+ Female.
LikeLiked by 1 person
What an absolute pleasure this is to read. Point by point and step by step Mia consigns the too quick, too un-researched, too based on lofty but incorrect opinion, objections to our real constitutional position to the dust. Note also, that as Scots have made their case about their standing in this Union, the ground has been shifted again and again and again. It began with promises and guarantees in perpetuity. It moved to an assertion that those guarantees and all the articles of the Union fell under Westminster control because Scotland was erased as a state but England was not. Then that the Treaty stopped having any effect and was superseded by the Acts, of which only the English Act, with Westminster as its curator remains. (Hopefully that is now demolished.) Then what was a pact between two separate nations where Scotland was to retain its sovereignty within the Union under clear terms and conditions (as Mia has admirably demonstrated), became instead, a deed of incorporation. ??? And, again, Mia has nicely demolished that particular piece of conmanship.
I can hardly wait for the next pile of erudite dross, with impressive legal credentials behind it, designed to send the law abiding Scots scurrying back into the corner to wring their hands and bemoan the fact that there’s nothing we can do because this is the law. (Jim Sillars and Robin McAlpine, much as I admire you, take note and pay less heed to the grand legal arguments developed by imperialist idiots and venerated as Holy Writ because they stymie Scotland’s rights and a bit more to the history of legalised crime by Westminster with respect to Scotland.)
There is a door waiting, not only to independence, but to a nation with its old rights restored for a new age and in new clothes. But we have to be very, very careful not to fall into very old traps. Remember all those dates Mia provided? They are the remains of those traps, and still we have not learned the danger of playing on the shifting sands of Westminster’s colonisation game, where there are innumerable mirages to draw us down yet another dead end.
Holyrood does not answer to the people of Scotland. Read that again if you must. Holyrood exercises the power of Westminster *devolved* to it by Westminster under the Scotland Acts. Though we elect our representatives to that devolved parliament the word ‘devolved’ is key. It is Westminster’s power it borrows and Westminster holds itself sovereign over the people of Scotland. Under the current regime, then, it is no more answerable to the people of Scotland than Westminster and Westminster has no lawful need to take account of the wishes of the electorate, however many constitutionalist argue otherwise. Maybe it should, maybe there is a provision for the people but the Courts have so far backed parliamentary sovereignty. Only when Westminster is forced to acknowledge the sovereignty of the people of Scotland over their own government will Holyrood have to follow suit.
So what we are really dealing with in Holyrood is the smaller head of the Westminster hydra. The Scottish parliament, adjourned in the 5th day of March in the year 1707 was, sadly, NOT reconvened in 1999. It broke my heart to understand that I am still waiting to hear the words “Is hereby reconvened” and for them to be true. Instead, a shiny imitation was offered – a step nearer to self-determination though it was – and the puppet master’s hand was firmly on the strings all the while. It has two independence routes open to it and two routes only. The first is to obtain a Section 30 (and watch all Iain’s fear comets pass if it is ever granted). The second is tocreat an 80% majority in Holyrood allowing to it override the reserved matters set out in the Scotland Act. Two votes SNP killed that possibility. Which should have told the entire nation how important independence really is to the new feudal executive of the SNP.
The Scotland Act is and was a trap and we can spend the next 40 ‘wilderness’ years easily, trying to make its ‘rules’ work for us.
Another trap that lead us around and around in the wilderness for forty years.
How about a plebiscite election? It has promise but – First there is the national franchise problem; on a matter of Scottish constitution and Scotland’s future those who are just passing through must not cast a vote. yet an election must be open to everyone. Then, even if the new devolved max SNP would go for it, there are courts to rule that people were not really voting for independence. There is also ample opportunity for vote rigging, election fraud and voter suppression, something Lord Pickles of the unforgettable name bemoaned years ago when he cried that we are dependent on an ‘honour system’ for the integrity of our elections and the opportunities for abusing it must be closed off. (He was ignored but he government that commissioned his report.)
What about withdrawing our MP’s? Well, while we are a sovereign nation and a sovereign people, we still do not have a state and a state parliament to which those MP’s belong. They were elected to serve as part of the UK state parliament. Nor we would we suddenly become a state because they withdrew. So its is chicken and egg. Before they can proclaim Scotland’s withdrawal from the union and their own return to the people who elected them, they have to have a state to return to. The Convention of the Estate, or Assembly of the Communities of Scotland, convened first to examine the legitimacy of the government, then having found the present government illegitimate, to act as an interim parliament (as in 1689) would provide that state apparatus. Because of course, if Westminster is found illegitimate, then so is the present Holyrood parliament.
I’d hope to see the list of ‘grievances’ well rehearsed around Scotland, against all t hose who have removed the rights and acted against the best interests of the Scottish people and for a good long time before the Assembly or Convention was formed. Because if we need to learn one powerful lesson for our history, it is that the people of Scotland are excluded from the business of government at our very great peril.
right now, Mike Russell MSP is busy drawing up Scotland’s new constitution. I am reliably informed that there is not a word about the sovereignty of the people or the means of holding elected representatives to account through impeachment and fines or jail, that there os no word about regional and national cicil assemblies with he power of a second chamber. Feudalism and the divine right of the tyrant seduced James VI and its modern version seems to have seduced the once honourable core of the SNP. And we do not have much time to stop them.
LikeLiked by 11 people
I’ve read all that several times but I still don’t know where it gets us. Of course, I start from a different base; I’m a pragmatist who deals in realpolitik and even after reading all this stuff about the claim of right I still don’t think it’s going to get us anywhere save, perhaps, as an additional point to be put to a court in any proceedings, and even then I don’t think it’ll get us very far. As for the Union, trying to assert that a 315 years old incorporating treaty should be annulled is completely unrealistic, and to base the rights of a former state on an even older document which today would be regarded as a bigoted onslaught on catholicism isn’t, IMO, going to do us much good either.
So you tell us all the things that aren’t going to work, but what you don’t tell us, at least in practical terms, is what is going to work. And it’s not going on and on about grievances about past treatment. We Scots have been deluged with grievances and it hasn’t done us any good at all save, perhaps, to sap our moral even further. If we really want independence we shouldn’t be looking at the past and saying how badly we’ve been treated (not always true) but instead should be looking to the future and saying how much better we could do. For that we have to have policies and announcements from our leaders telling us just how good an independent Scotland could be and setting down the policies and plans that would ensure that. Unfortunately, that’s what we’re not getting .
LikeLike
I know others are in the process of preparing replies so I will restrict my comment to the fact that you are happy to dismiss a legal document that sets out rights for the Scottish people while appearing to support another ancient document that you claim removes the sovereignty of the Scottish people that was secured with a large English army on our border and extensive bribery of those who voted for it. This, to me seems a rather strange choice
LikeLiked by 8 people
I suggest you listen to my broadcast with Professor Alf Baird on IndyScot news midweek programme. I make exactly that suggestion on how we should be campaigning.
LikeLiked by 5 people
Is that your Teddy in the corner DT19?
LikeLike
Davy . It’s right that you should be pointing-out the flaws ( as you see them ) in the approaches being discussed in these essays and comments , subjecting them to rigorous scrutiny is essential : for one thing because – if we ever have a Scottish Gov/Party willing to proceed on their basis – they will certainly be subjected to such scrutiny by others
You ask the reasonable question ….” how can they be made to work ? ” . The truth is I don’t know . Does anyone ? Will the opportunity ever arise to advance them in any meaningful way ?
What I do know is the more arguments in favour of Independence we can marshal the better . Arguments based on historical artefacts eg ToU , Claim of Right etc needn’t come at the expense of those from present circumstances – the sheer awfulness of this Tory Gov , Brexit , the erosion of the little autonomy we have being exacerbated by the insidious Internal Market chicanery etc – but in addition to them .
Any genuinely committed , politically savvy Independence-seeking entity would be bringing everything it has in it’s armoury to the field of combat : none of us can be in any doubt we are engaged in a protracted conflict with an opponent that has always and will always be doing precisely that .
The present Pleadership thinks asking nicely whilst waving a wee rainbow flag and wearing * progressive * hand-me-downs and loitering on the periphery of the battlefield is going to win the day ( at least , that’s what they’re trying to * present * as doing , in the reality , it appears they are just terrified of losing their Big Fish /Small Pond sinecures ) . It won’t . Obviously , to anyone with a functioning intelligence
Others more qualified than myself will answer your points of contention : I would only , respectfully , suggest you put your intellect and obvious commitment behind what’s being advanced here .
Certain things always seem impossible . Until they’re not
LikeLiked by 8 people
If your information about Russells new constitution is correct, I can imagine that there will be more than just a few SNP members not too happy on hearing that they will no longer be recognized as sovereign citizens in Russells Brave New Scotland.
LikeLiked by 8 people
Don”t really wish to be pejorative but if yesterday’s Grand Pooh Bah Michael Russel is reportedly drafting a constitution I think we can reliably suspect it will not be worth the toilet paper it is written on.
This is a man who in a book jointly written with a Canadian billionaire believes that all NHS medical care in Scotland should be required to make a profit failing which any offending hospital, GP surgery, clinic will be cumpulsorily privatised.
With Russell also having stated that everyone should be given vouchers to buy health services I think it isn’t too difficult to imagine the boorach of a constitution that this clown will draft up.
Best that he just hides away in Argyll keeping keeping his Pish Tush to himself.
LikeLiked by 5 people
And I will just leave this here. there is such a thing as peaceful and just rebellion. the Scottish Parliament passed an act which stated that rebellion is only lawful if it is agreed to by the estates. In other words, it legalised rebellion. the act was annulled by Westminster in 1906 but it still sets out the Scottish view!
LikeLiked by 8 people
How could Westminster annul it?
LikeLike
It would appear that Westminster annulled a raft of Scottish laws that were considered ‘obsolete’ or anachronistic. A large number of these provided for the administration of Scottish government and civic organisation which were considered unnecessary in a country administered from England. Needless to say, some of these contained provisions Westminster found objectionable. The first of these repeals was the Statute Law Revision (Scotland) Act 1906. There was another in 1927 (I think) and again in the 60’s.
LikeLiked by 2 people
While I do get the sovereignty theme in the argument, however because of its seeming reliance on a particular historic religious outlook in pursuit of that sovereignty, i do not share it. A not dissimilar reasoning has been put for the supremacy of Islam and its culture and legal authority, over any other, in the region of the world i was born in.
The deficiences of 400 years of personal and parliamentary Union with England is itself material and psychological evidence enough. The anglocentricism of that relationship to the greater benefit in real terms to only one partner has as far as i have researched never been fully «politicized». I suspect that may be due to a sense of Britishness, empire heritage, a shared language and modern culture which fogs a potentially clear cut, either or discourse on the matter.
The fact that the National Movement in its apotheosis, the SNP, prevaricates over or marginalizes issues such as monarchy, cultural-linguistic development and the meaning of the term «independence» in a world dominated by big powers is symptomatic.
LikeLiked by 4 people
With ref to the concept of «independence» social, national, personal how should a sovereign people respond to this?
https://off-guardian.org/2022/03/19/ukraine-crisis-accelerating-rise-of-central-bank-digital-currencies/
LikeLiked by 3 people
Deeply troubling Otto .The * situation * in Ukraine will almost certainly be used as cover and pretext for accelerating this process of digitalization of ALL money : as the article states , giving States even more control over the lives , thoughts , beliefs and political affiliations of – what used to be known as – citizens .
LikeLiked by 3 people
Our colonial relationship within the UK union is clearly still not well understood among Scots, and more especially among the political class/elites. Many Scots have heard of the ‘Scottish Cultural Cringe’ but are often unaware as to how it develops or that it is a psychological condition with significant adverse health impacts. Here we are then also entering the realm of ‘the colonial mindset’, which brings with it other conditions such as ‘Internalized Racism’ or ‘Appropriated Racial Oppression’. These concepts have only recently been brought together to enhance our understanding of the Scottish predicament, which also helps clarify for us what self-determination independence actually means, i.e. decolonisation, according to the UN.
https://yoursforscotlandcom.wordpress.com/2021/08/15/determinants-of-independence-ethnicity/
LikeLiked by 6 people
Truly, the psychological impact is the one often overlooked. Centuries of «negative» input, being treated as subordinate to the the ruler, marginalized in the socio-cultural narrative will deplete the resources and the national «immune system»» to the point where treatment becomes a matter requiring more than orthodox palliatives.
In extremis all measures ought to be considered. Such measures will require «practitioners» with insights beyond the functionally banale, a «holistic» politics.
LikeLiked by 7 people
Yes, our ‘nationalist’ politicians are weak in this regard, failing to fully comprehend the ‘condition’ of the people after prolonged colonial subjugation. Here we enter into the realms of the Colonial Mindset, in that the effects of colonialism is considered to lead to ‘a disease of the mind’, which an oppressed people must cast out in order to become fully liberated (Fanon 1970; Cesaire 2000). While the cure for this condition involves ‘difficult and painful treatment’, there may well be a more serious drama if colonization is permitted to continue (Memmi 2021; 191).
LikeLiked by 4 people
Think about Magna Carta or the Bill of Rights. It’s probably easiest to illustrate the point with Magna Carta. Have you read it? A charter for the nobility of England, anti-semitic and utterly anachronistic. But there is a founding constitutional principle in there. Monarchy in England can be restrained. And that is what is remembered and celebrated. (Shame the contemporary Scottish principle that monarchy can be booted out is not similarly recognised!)
The Bill of Rights is celebrated not for its anti-Catholic sentiment but for its removal of royal prerogative and reassigning that prerogative to parliament: “And whereas it hath been found by experience that it is inconsistent with the safety and welfare of this Protestant kingdom to be governed by a popish prince, or by any king or queen marrying a papist, the said Lords Spiritual and Temporal and Commons do further pray that it may be enacted, that all and every person and persons that is, are or shall be reconciled to or shall hold communion with the see or Church of Rome, or shall profess the popish religion, or shall marry a papist, shall be excluded and be for ever incapable to inherit, possess or enjoy the crown and government of this realm and Ireland and the dominions thereunto belonging or any part of the same, or to have, use or exercise any regal power, authority or jurisdiction within the same; and in all and every such case or cases the people of these realms shall be and are hereby absolved of their allegiance; and the said crown and government shall from time to time descend to and be enjoyed by such person or persons being Protestants as should have inherited and enjoyed the same in case the said person or persons so reconciled, holding communion or professing or marrying as aforesaid were naturally dead; and that every king and queen of this realm who at any time hereafter shall come to and succeed in the imperial crown of this kingdom shall on the first day of the meeting of the first Parliament next after his or her coming to the crown, sitting in his or her throne in the House of Peers in the presence of the Lords and Commons therein assembled, or at his or her coronation before such person or persons who shall administer the coronation oath to him or her at the time of his or her taking the said oath (which shall first happen), make, subscribe and audibly repeat the declaration mentioned in the statute made in the thirtieth year of the reign of King Charles the Second entitled, _An Act for the more effectual preserving the king’s person and government by disabling papists from sitting in either House of Parliament.” And this is a typical reprise from ‘law teacher’ online: “The Bill of Rights 1689 established the doctrine of Parliamentary supremacy, meaning that Parliament became the supreme source of law-making over the monarch and the courts. It declared illegal the practice of prosecuting anyone in the courts for causes unless it was by the authority of Parliament.”
The Claim of Right deserves exactly the same treatment and, since it was passed in the same year, is recognised as conferring sovereignty on the population not the parliament and goes much further in terms of restricting governmental overreach (see SCOTLAND’S MAGNA CARTA: THE CLAIM OF RIGHT AND THE COMMON LAW by Professor the Rt Hon Sir David Edward KCMG QC FRSE) it is extraordinary that only the Bill of Rights is celebrated, referred to as the leader in democratic development and ‘live, i.e. still applied and followed to this day: “On 21 July 1995 a libel case, Neil Hamilton, MP v The Guardian, collapsed as the High Court ruled that the Bill of Rights’ total bar on bringing into question anything said or done in the House, prevented The Guardian from obtaining a fair hearing. Hamilton could otherwise have carte blanche to allege any background or meaning to his words, and no contradicting direct evidence, inference, extra submission or cross-examination of his words could take place due to the tight strictures of the Bill of Rights” While the Claim of Right is utterly ignored – though law sites speak of it as ‘pertaining in Scotland’.
LikeLiked by 1 person
This ‘debate’ over Scotland’s sovereign right to break the political contract with England is symptomatic of the complete lack of leadership in our political ‘parties’. The feigned complete memory loss by the so-called ‘Nationalist ‘ party of what the basis they were founded upon and the democratic mandate given to them repeatedly is and has been plain to all of us as deception of the lowest kind. Backing it up has been their abdication of informing and educating the mass Scottish population of their absolute sovereign right to dissolve this de facto colonial subjugation. Either through education of our history, our resources and worse, the political supinity and I believe complete collaboration with the modern version the ‘Divine right’ power source, partially curbed back in the 17 century and replaced with the ongoing version of the Westminster Parliament. In 2015 the majority of seats was overwhelming, the combined votes for SNP/Greens was over the 50%. Yet they keep telling us they want more! Well if that was not sufficient. then why are we still voting in General Elections. If Holyrood is subordinate and a sham, which is proven to be, then we are prisoners not citizens.
Popular Sovereignty and democratic voting is our established right. The contradictions and anomalies that exist in the corrupt UK are plain: Northern Ireland, the artificial and fabricated century old sectarian rump state exemplifies this. Allowed to remain in the EU Single Market and allowed a Referendum every 7 x years to effectively decide its possible reintegration back to the Irish Republic. Our experience of gerrymandering going unchallenged is not the sole responsibility of the English dominated parliament but the collusion through the centuries of bought Scottish political traitors.
We need to make the SNP publicly accountable for our plight. Because Sturgeon and her gang of virtue signalling charlatans and incompetents are nothing more than parasites and puppets for the English ascendancy. I will not go on any more marches where they are involved or give them the flimsy cover of the Devolved fraud that has emasculated us politically, socially and now economically. The disparate elements and voices of Independence that now see the SNP as the traitors that they are must come together and elect leaders to fight at Westminster for the majority of seats required in Scotland, and call out the Johnson gang of gangsters on their ‘representative democracy’ as the criterion for a declaration of Dissolution in the Motherf****er of Parliaments. That right still exists. It needs Scots of courage, faith and tenacity to assert what the toom tabards that we have elected have failed to do.
LikeLiked by 10 people
So Lochside, you get a majority of seats and Westminster refuses to allow a referendum. What do you do then? Lots of talk and theorising from everyone about sovereignty, claim of right, an Act of Union made under duress, and centuries of English oppression, but my repeated questions about how we actually go about getting independence in practice rather than theory go unanswered, possibly because no-body likes the answer.
LikeLike
Withdraw. From Westminster, make direct application to the UN.
LikeLiked by 4 people
davytee19…..I’m assuming you are being deliberately obtuse here. I have clearly stated that it is axiomatic that Scotland and its people are sovereign and the method to exert that Sovereignty has rested with our MPs, who have wilfully ignored and disdained it by playing along with the English hegemony ever since the advent of universal suffrage has allowed Scots to express their universal sovereign democratic rights.
The answer is to play the game against the Westminster myth of ‘representative democracy’ by replicating what we already had done previously in 2015 onwards but by placing and voting in representatives who are there to settle up not settle in.
To make it plain: an Independence coalition of representatives elected purely on dissolving the Union. This is what was recognised by all the previous SNP incarnations and the Unionist hegemony. Only the betrayers and imposters who have inhabited the SNP have altered that by remaining mute and colluding with the Westminster accord of English Parliamentary Sovereignty i.e. a literal dictatorship of England’s will over Scotland’s.
We have to start again and quickly by overthrowing the ‘Divine Right’ of Queen Nicola and her oppressive leadership.
As the Scots did in 1638 when they threw out Charles 1st attempt to impose English Bishops on us, a covenant was raised.Similarly in the 1950s. But both proved fruitless because a leadership purely of the people, was either lacking or treacherous. We are in the same place now. We need to overthrow the modern undemocratic rule over us by the quisling SNP.
There is no quick solution. An organised movement, as I said before, with all pro ‘YES’ elements of Scottish intellect and expertise of all sectors must come together and utilise the only recognised and effective method of dismantling Westminster i.e. a plebiscite election ;followed by a dissolution declaration and a direct application to the UN.
Referenda have been proven corrupt both in 1979 and 2014 by direct British intervention and with the existing bankrupted franchise, they are a non starter because it is a subordinate and insulting to us as a Sovereign nation. We don’t need England or the SNP’s permission to be subjugated yet again in a false show of sovereignty.
Finally, if you believe in Scottish incorporation into a Great Britain/U.K. single entity and therefore extinguished as a nation in 1707, then you are on the wrong site and further discussion with you is pointless.
LikeLiked by 7 people
Obtuse…. Who, me?
Unfortunately, Lochside, however much you may say something and however much you may believe it, it doesn’t make it true. You say it is axiomatic that Scotland and its people are sovereign, but I’ve seen no evidence whatever of that, and I do try to look for evidence befire accepting some theory. The only evidence I’m aware of is that Scotland the sovereign nation state ceased to exist in 1707, since when Scotland has complied with the UK constitution, which is basically parliamentary sovereignty and the rule of law. The idea that thanks to an ancient pre-union document the Scots people are sovereign notwithstanding the fact that their sovereign state has not existed for 315 years is nice but unlikely to be legally valid. Not even the Scots ever accepted the notion, at least not in practice – I doubt if there have been many if any occasions when “the people” in pre-union Scotland exercised any sovereignty whatever. When they tried to do so in 1706/7, they were ignored by their owns ruling classes. ‘Twas ever thus. So yes, I’m afraid that I do believe that in becoming part of the new state of Great Britain in 1707, Scotland did indeed lose its national sovereignty, but I think it’s up to Iain, not you, to tell me I’m on the wrong site. What is without question is that now we’re saddled with parliamentery sovereignty which can perhaps be called sovereignty of the people becasue those in parliament are sent there as representatives of the people. Whatever – the people are still powerless, as indeed thay are in most countries.
Your suggestion of an Independence coalition standing in a plebiscite election is on the face of it a good one. But there are snags. First, are we taliking about a holyrood election or a Westminster one? You appear to suggest a Westminster one. That would be conducted on the FPTP system and I very much suspect that just as the Independence people would form a coalition, so would the unionists and apart from maybe a few independents, each seat would be fought Indy -v- unionist. That’ fine, but there’s no guarantee we’d win them all – in fact, we might end up worse than we curently are. In how many Scottish constituencies at the last general election did independence canditdates secure more that 50% of the vote? Overall, the SNP and Greens between then got 46% of the popular vote. I haven’t checked, but I doubt if there arre many seats where in a straight fight between Independence candidates and a combined unionist candidate the former would be assured of victory. If independence is showing strongly in the polls, though, it’s may well be worth a shot.
But secondly, even if the independent candidates did indeed secure a majority, what then? There’s certainly no guarantee that Westminster would cave in and say of course you can now be independent. Assuming that they really don’t want us to be independent, I can’t see them agreeing to it even in these circumstances. UDI? Hopeless. Look what happened to Catalonia. So no dissolution declaration and subsequent application to the UN as we’d be in an illegal limbo until our case was heard, and that wouldn’t be good. Get the result, then go to the UN, or more probably the International Court of Human Rights but that, unfortunately, will not be quick. Howver, possibly the prospect of being judged to be a despotic colonial power that acts contrary to the UN charter of human rights and ignores the democratic will of the Scottish people might sway the UK. Don’t hold your breath though.
It really is a quandary,and it isn’t helped by the continuing silence from the SNP. But that doesn’t mean that we should give up. We need to get people on board. We need to show that a clear majority of us really do want independence (we can’t do that at the moment). We need to be enthused and fired up again. We need our politicians to come out and tell the people how much better it would be if we were independent, and they’ve got to become a lot more assertive when dealing with the media – there’s been far too much Mr Nice Guy when faced with hostle and biased questioning. I think we need polls to show that 60% plus of us want independence. We need to keep the pressure on. And to get that going, we need the leadership iof the SNP to get off its collective backside and start doing what they were elected to do.
LikeLike
Hi daveytee19
You say
“the UK constitution, which is basically parliamentary sovereignty”
Is it though? Or it has just been assumed to be hoping nobody would notice and the successive govs of Scotland have been simply too compliant and too keen in the Union to ever challenge this? I am not sure this has ever been properly challenged, has it?
This is a quote from Lord Mackay of Ardbrecknish . it is taken from the HL 22 June 1999 ( “MEMBERSHIP OF HOUSE OF LORDS: SCOTTISH PEERS (NO. 9)”, ) :
“Here we are removing the right of any of the Scottish peerage to sit in your Lordships’ House; and on any reading that has to be a breach of the Treaty of Union. Article XXII is quite clear on that issue.
Related to that was the discussion on Lord Cooper’s judgment in the case of Hamilton and MacCormick v. The Lord Advocate on the question of the style and title of Her Majesty the Queen. The argument which MacCormick and Hamilton put forward was that the Queen should be Elizabeth I of Great Britain and not Elizabeth II….
The court found against MacCormick and Hamilton…
While the court held against them as regards “EIIR”, Lord Cooper made perfectly clear his view on the questions of the characteristics of the treaty, especially of the sovereignty of Parliament….
In his judgment, Lord Cooper said:
‘lest this case should go further, I shall briefly express my opinion. The principle of the unlimited sovereignty of Parliament is a distinctly English principle which has no counterpart in Scottish constitutional law. It derives its origins from Coke and Blackstone, and was widely popularised during the nineteenth century by Bagehot and Dicey, the latter having stated the doctrine in its classic form in his Law of the Constitution.
Considering that the Union legislation extinguished the Parliaments of Scotland and England and replaced them by a new Parliament, I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done. Further. the Treaty and the associated legislation, by which the Parliament of Great Britain was brought into being as the successor of the separate Parliaments of Scotland and England, contains some clauses which expressly reserve to the Parliament of Great Britain powers of subsequent modification, and other clauses which either contain no such power or emphatically exclude subsequent alteration by declarations that the provision shall be fundamental and unalterable in all time coming, or declarations of a like effect.
I have never been able to understand how it is possible to reconcile with elementary canons of construction the adoption by the English constitutional theorists of the same attitude to these markedly different types of provisions”
“The Lord Advocate conceded this point by admitting that the Parliament of Great Britain ‘could not’ repeal or alter such `fundamental and essential’ conditions'”
end of quote
This next quote is the contribution to that same debate by the Duke of Montrose:
“As my noble friend Lord Mackay of Ardbrecknish has introduced the opinion of the Lord Advocate Cooper into this matter and the fact that he was puzzled as to why two sovereign parliaments coming together would appear to have adopted purely the practices of one of them, I made some inquiries of the Library. The answer I received perhaps sheds a little light on the matter.
We are all familiar with the position that the Scottish Parliament was prorogued and not reconvened until the present institution was put in place.
On 24th April 1707 the House of Lords and the House of Commons in Westminster were prorogued. On 30th April the Lords Commissioners read a proclamation from the Queen, which contained a declaration to the effect that Parliament should continue and would constitute the representation of England in the first Parliament of Great Britain.
From this has perhaps slowly emanated the idea that most of the traditions carried on were those of the former English Parliament.
I hope noble Lords will forgive me if I hark back to something I referred to at Second Reading. As we consider the reconstitution of this Parliament, we should look at how it becomes the Parliament of the United Kingdom in every aspect and does not rely too much on the traditions of one other Parliament”
end of quote
As you can see, this idea of parliamentary sovereignty has just been assumed, but from the words of Lord Cooper in that court case regarding the post boxes, it is not certain that it is correct to assume the brand new parliament of the United Kingdom of Britain simply inherited the constitutional traditions of one parliament (English) and not the other (Scotland) when it is the parliament of a union between 2 sovereign states both with different constitutional traditions.
In addition, the parliament of the uK of great Britain has not unlimited power to trash all the articles of the treaty of union.
You say:
“The idea that thanks to an ancient pre-union document the Scots people are sovereign notwithstanding the fact that their sovereign state has not existed for 315 years is nice but unlikely to be legally valid”
Well, the lords in 1999 did not seem to agree with you:
This is from Lord Rowallan during the same speech: HL 22 June 1999 ( “MEMBERSHIP OF HOUSE OF LORDS: SCOTTISH PEERS (NO. 9)”, ):
“My noble friend Lord Gray raised a very important point. It is quite clear in the Union roll and in the Union that Articles XXII and XXIII are never to be changed. My noble friend then raised a very important point when he moved on to Articles XXIV and XXV. We must look at this very carefully to ensure that we are not breaking a treaty of very long standing”
end of quote
this is from the Paper “Scotland’s right to choose: putting Scotland’s future in Scotland’s hands” published in the Scottish Gov Website in 19 Dec 2019:
“The UK’s constitution is said to be based on the idea of parliamentary sovereignty: that the UK Parliament is the sole source of sovereignty, and that the Crown-in-Parliament can make or unmake any law whatever. This theory of the constitution is the product of Victorian legal thinking, and it has been questioned whether it remains an accurate or sensible description of the constitutional reality in the UK.[14]
Scotland has a historic constitutional tradition different from that described by the doctrine of parliamentary sovereignty. In Scotland, sovereignty is traditionally said to lie with the people, and to favour a limited rather than absolute form of authority, with the right to rule being subject to the consent of the people.[15] The question has been asked why the constitution of a Union state should reflect only one of the constitutional traditions of its constituent nations”
end of quote
From here you clearly see that:
a) The treaty of union is still extant and the lords are being most conscious not to break it
b) Some articles within the treaty of union are deemed unchangeable – This means the parliament of the UK of Great Britain has not the unlimited power that would be inferred from the concept of “parliamentary sovereignty.”. The only thing that has unlimited power is those unchangeable articles within the treaty of union that limit the power of that parliament. The Claim of Right is a fundamental part of some of those articles of the Treaty and cannot be modified by the UK of Great Britain Parliament.
I hope that helps.
LikeLiked by 7 people
“The only evidence I’m aware of is that Scotland the sovereign nation state ceased to exist in 1707”
Really? It certainly did not. What ceased to exist was only the old Scottish Parliament, and nominally at least, the old English Parliament. Neither Scotland nor England vanished, only their prior governments and parliaments, replaced by a brand new ‘joint’ one, run almost exclusively by England.
If Scotland ceased to be a sovereign nation, why does its border mark the boundary of the writ of English law (often wrongly referred to as UK law)? Why does the writ of so-called ‘UK-wide’ law also fall away at the Scottish border, necessitating it be recast into a Scottish law equivalent, this being the original purpose of the old Scottish Office? So Scotland as a nation clearly did not cease to exist.
Also if you’ve been paying attention, the Scottish constitution as expressed in the 1689 Claim of Right and guaranteed by the Treaty of Union, also clearly still exists, even though the vast majority of us didn’t know about it. And now, thanks to Sara, some more of us do know about it. So our sovereignty still exists, too.
And that means the only thing that really vanished was the respect for Scottish sovereignty, not the sovereignty itself. Westminster stole it and ‘fenced’ it to all of its MPs, thus allowing the vast English majority there to constantly overrule Scottish MPs on matters affecting Scotland that should be agreed with Scotland’s MPs and not in spite of them. Our sovereignty is still there, but wielded mostly by fraudsters with their own agendas.
But as Sara also shows, a key part of Scottish sovereignty remains here in Scotland, beyond the reach of Westminster, and now we just have to decide how to wield it in order to get the rest of our sovereignty back.
LikeLiked by 7 people
Excellent and comprehensive response from Mia, to which one eagerly awaits a(ny) further rejoinder from daveytee19.
Scotland is perhaps less thin on the ground for constitutional lawyers than might be thought.
LikeLiked by 3 people
MacCormick v. Lord Advocate (1953) SC 396 – Court of Session (on appeal)
LORD PRESIDENT COOPER: ….The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law.
LikeLiked by 1 person
@Robert Hughes.
Countries need their own unique breathing space ie true, «authentic» independence Digital oversight/spying by corporate globalists based mostly in the US are robbing countries and their citizens of that, turning them into puppets.
An iScotland will need not just technical expertise but a worldly wisdom to handle that antidemocratic existential threat. The available set of those involved in politics displays a conformist/supine acceptance of the status quo. They seem unaware that the pieces have moved in the powergame over the last two years. The global system is contaminated with elements that would turn an iScotland into more of pet lapdog than it is now.
Legalism, which seems to be the line advocated here, i do not see as the answer to that.
The 21st century is a whole new unbrave world of manipulation, Scotland will need a whole new political worldview.
LikeLiked by 5 people
” ……..Scotland will need a whole new political worldview. ” . Yes , it will Otto . One far wider , deeper and clearer in it’s understanding of the harm done by the many abuses of Power under the cloak of * Democracy * than the pathetic Neo Liberal myopic , bogus * progressive * bullshit slavishly espoused by Sturgeon and the new mandarins that comprise the ascendant Queerocracy .
LikeLiked by 5 people
The colonialized mind becomes preoccupied with the colonializer to the exclusion of the other dimensions. Changing the mindset involves letting go of that preoccupation. We cannot change history but we can learn from it, overcome its negatives and develop resistance to wallowing in its more facile sentimental themes and tropes.
I’m thinking «Flower of Scotland» here, totemic of the latter. Ireland 26. Scotland 5.
LikeLiked by 5 people
Otto . ” Flower of Scotland ” has it’s value , as a * period piece * I suppose , not a bad tune either , if a bit hollowed-out by repetition and boozy sentimentality .
iScotland could do worse than adopt one of The Blue Nile’s cinematic , propulsive , romantic ( but NOT sentimental ) songs as a national anthem – ” Tinseltown In The Rain ” for example : though the stalwart Proclaimers would have a fair claim on one too .
Aye , I know , we’re getting a little ahead of ourselves here : )
LikeLiked by 4 people
The reason there is no constitution of GB is because the international Agreement was a trade Agreement coming on the back of the economic war waged by England and its allies against Scotland and the constitution of BOTH countries was to be fully upheld. There was no parliamentary sovereignty of the parliament of GB nor indeed of England after 1707 because the English parliament was officially abolished in 1707 in order to create the parliament of GB. What has been observed for these past years has been nothing more than English parliamentary conventions which held/hold no legal standing. It is why the English government are now actively writing them in to English law. This has been pointed out repeatedly over the years. In 2020 when England tried to write it into law via Clause 38, Carwyn Jones, who was representing Labour in Wales at the time, pointed out that it does not exist in law. Something many of us had been stating for a long time but having the fact fall on deaf ears. You can watch Carwyn Jones statement regarding parliamentary sovereignty or rather lack of it here: https://www.youtube.com/watch?v=bNawcGqBWc4
Scots have had weasel governments for so long that they simply accept whatever England does instead of challenging the narrative and assumed authority. The really disturbing thing is that the English establishment not only recognise Scots sovereignty but are forced to uphold it hence why petitions that are Scotland based are rejected due to the English government having no legal say in the matter. They, the English establishment, have repeatedly stated Scots are sovereign and the “Scots need only return a majority of pro-indy MPS” (a Scottish government) because of Scots sovereignty which would be enforced but the Scots themselves do NOT recognise or uphold their own sovereignty. THAT is truly disturbing.
LikeLiked by 8 people
Even when the cage door is open, we fear freedom.
LikeLiked by 7 people
The cage door sadly is currently locked. We know, however, who has the key and who promised that she would open the door. Now she seems to have lost the key and be making minimal attempt to find it.
LikeLiked by 4 people
Tragically so Alf . 300 ( very ) odd years of being doun hauden will tend to produce such timidity . As you know better than most
LikeLiked by 6 people
Actually, all this is unnecessary. We don’t need to to be considering some old documents, the validity or meaning of which must be in serious doubt. We don’t need to assert that the Scots have some unique form of sovereignty even thought their sovereign state was abolished, with their agreement, 315 years ago. We don’t need to consider the frankly absurd suggestion that the Act of Union should be annulled. There are much more modern authorities to support our case and we’ve already referred to them but not perhaps appreciated their full relevance because we’ve been so tied up with this Claim of Right business.
I am of course referring to the UN charter and what it says about self determination. The UK is of course fully signed up to the charter and therefore bound by it. I quote Wikipedia (not sometimes a totally reliable source, but pretty good here):
“The right of a people to self-determination is a cardinal principle in modern international law (commonly regarded as a jus cogens rule), binding, as such, on the United Nations as authoritative interpretation of the Charter’s norms. It states that peoples, based on respect for the principle of equal rights and fair equality of opportunity, have the right to freely choose their sovereignty and international political status with no interference” (https://en.wikipedia.org/wiki/Self-determination – a very interesting article, well worth a read)
So there it is, in black and white, in a modern document to which the UK is a party. With every resepect, that carries far more weight than any claim of right or unlikely theory of severeignty which may be intellectually interesting but carry little if any weight in modern law. As I see it, therefore, if the UK government prevents us from holding a referendum to determine our future, and it can be shown that there is a good chance that we would win any such referendum, then the UK government is in breach of international law and should be held to account – how that is done I leave to others who may be better versed in the practicalities of international law.
LikeLike
” We don’t need to assert that the Scots have some unique form of sovereignty even thought their sovereign state was abolished, WITH THEIR AGREEMENT, 315 years ago ” .
What agreement ? You make it sound as if the decision to become part of a union with England was a democratic one .
The decision/choice to REMAIN in the Union may be considered a democratic one , but only if you ignore the lies , obfuscation and interfering of the entire pro-Union political establishment . MSM and Business
LikeLiked by 4 people
The right to self determination goes beyond the mere possession of it. The guidance notes to the Charter explains that the right actually obligates governments of countries with a sub-population that could exercise that right, to facilitate the means to allow that right to be exercised, and not merely passively stand to one side. If that population needs help to be able to understand and to exercise their Charter-mandated rights, their government must step in to help in whatever way they can to see that right exercised.
Westminster’s active refusal to allow Scottish self-determination to take place, is a direct breach of what is effectively international law. Westminster freely concedes that the Scots have the right to self-determination, but insists that Scotland asks, and receives permission from the UK Government before they can ask themselves what their choice is.
Westminster claims a veto that actively breaches the Charter, and they should be loudly and vehemently called out on it. That the SNP, the party of so-called independence, is not doing that in every way they can, tells us all you need to know about how they regard the fundamental raison d’etre of the party. Their leadership has been subverted, and much of their party membership have yet to realise this.
LikeLiked by 3 people
“We don’t need to to be considering some old documents, the validity or meaning of which must be in serious doubt”
Well, I do not think at present there is doubt about the validity of those “old documents” named the Bill of Rights 1689, the Claim of Right 1689 and the Treaty of Union 1707.
As a matter of fact, under the “Acts of Parliaments of Scotland”, Hansard recorded that on the 4 December 1995, Mr Charles Kennedy asked Lord Douglas-Hamilton for a list of the Acts of the Scottish Parliament before 1707 that were in 1995 still on force. Lord Douglas-Hamilton provided a list with 94 Acts still on force. Among all those the Act of Union with England and the Claim of Right 1689 were included. A quick look at the government website tells you that both of those, the Union with England Act 1707 and the Claim of Right 1689 are indeed still active.
In June 1998, under the debate “APPLICATION OF BILL OF RIGHTS AND CLAIM OF RIGHT TO ASSEMBLY PROCEEDINGS” the following amendment was requested, I quote:
“For the avoidance of doubt, the provisions of Article IX of the Bill of Rights 1689 and of that part of Article XXV of the Claim of Right Act 1689 which secures freedom of speech and debate to members of Parliament shall apply to the proceedings of the Assembly; and those Articles shall be construed accordingly”
“This amendment raises the issue of according to the assembly the privilege that attends to what is said in this Parliament when cases are raised in courts throughout the United Kingdom. It seeks to provide that the provisions of Article IX of the Bill of Rights 1689 and the Scottish equivalent of that—namely, Article XXV of the Claim of Right Act 1689, which secures freedom of speech and debate to Members of Parliament,—apply to the proceedings of the assembly.
It may be instructive to bear in mind what lies behind the privilege that is incorporated in Article IX of the Bill of Rights. It is the need to ensure that as far as possible Members of this Parliament and witnesses who appear before the committees of this Parliament are able to speak freely without fear that what they say will later be held against them in the courts. The important public interest protected by the privilege is to ensure that a Member of either House, or a witness appearing before a committee of either House, when he speaks, is not inhibited from speaking fully and freely”
end of quote
Did you every like me wondered before reading that speech where David Davies got the privilege of being able to say without fear in Westminster regarding Mr Salmond’s case what apparently could not be spoken of in Scotland?
Well, there you go, according to what spoken in that debate mentioned above from 1998 in Westminster, that privilege came from both the Bill of Rights 1689 and the Claim of Right 1689. Both pieces of legislation are contemporary “old documents” from over 300 years ago. Yet, MPs all over the UK still rely on them today to avoid seeing themselves in a court of law for what they say in parliament.
The Treaty of Union is also a very old document that was ratified over 300 years ago. However, it is as valid today as it was over 300 years ago when it was agreed.
Do not take my word for it. Go and read the speeches and the debates by both Lords and MPs and note how alert they are when bills or changes in legislation could be seen as clashing with the articles in the treaty of union. They are always very, very careful to phrase any changes in law that could impinge in those articles of the Treaty so they cannot be construed as a breach of the treaty. It stands to the obvious that impingement on those articles might render the treaty of union void, opening the door for Scotland’s independence supporters, for example, to claim their prize. Evidently, the Lords would not be bothered in being so careful if this “old document” known as the “Treaty of Union” was no longer valid as you suggest.
Westminster has already repeled some articles in the Treaty and substituted them with different ones. This is only because for certain articles, the treaty of union makes provision for the potential need of change, for example in article IIX this was included when the treaty was drafted:
” And if any Matters of Frauds, relating to the said Duties on Salt, shall hereafter appear, which are not sufficiently provided against by this Article, the same shall be subject to such further Provisions, as shall be thought fit by the Parliament of Great-Britain”
There are other articles however that do not include any provision for change. In some even you have comments like this included (Article XXV):
“And it is hereby stated and ordained, That this Act of Parliament, with the Establishment therein contained, shall he held and observed in all Time coming, as a fundamental and essential Condition of any Treaty or Union to be concluded between the two Kingdoms, without any Alteration thereof or Derogation thereto in any Sort for ever”
So there are articles that are unchangeable, and, by the look of it, the Parliament of the UK of Great Britain cannot change those articles without explicit consent by the two partners that entered the treaty.
To give you an illustration, this quote is from Lord Elton and it was taken from the debate “Membership of the House of Lords: Scottish Peers (n9)” which took place on 22 June 1999:
““It takes two sides to make a treaty and so far we have heard everything that Scots expect from their treaty. But it is our treaty too, and if one side loses its rights so does the other. That is something that the Government cannot afford to do either, because if they abrogate the treaty in any way they will soon find the Government of Spain requiring them to abrogate the provisions of the Treaty of Utrecht, with incalculable consequences for the nationality of Gibraltar. In law we need a cogent and sufficient answer to my noble friend’s point”
end of quote
From the same debate, this other quote is from Lord Gray and gives you an idea why the supporters of the Union in both chambers at Westminster are not keen at all on devolution and have been basically dragged to it kicking and screaming:
“With devolution in place, it is important that we take care not to retract anything from the bargain which created the Union”
Clearly the implication from this comment stands to the obvious: now that Scotland possesses a parliament it has the two instruments required for it to end the treaty of union:
a) the loudspeaker that can now spell to Westminster and the world all over it wants to repeal the treaty and
b)the vehicle to put that repeal in place by repealing the Act of Union with England.
From all those speeches it stands to the obvious that many people in Westminster are convinced people in Scotland are just waiting for a slip in Westminster to be committed that breaches one of the irreversible articles of the treaty rendering it void.
This is a quote from the Earl of Dundee within the same debate:
“It is self-evident from Article XXII of the Treaty of Union this article is not spent, as my noble friend Lord Gray correctly asserted. It stated a number which was, and still is, a minimum of Scottish representation within the United Kingdom second Chamber”
And this other quote from Lord Lord Mackay of Ardbrecknish , also during the same debate, clearly shows the concern these people have that the treaty of union could be breached if they are not careful:
“Why, as the Bill undoubtedly amends the Treaty of Union-we are agreed that it changes the Treaty of Union—was nothing put in this Bill similar to Section 37 of the Scotland Act which this Parliament passed just over a year ago?
Section 37 boldly states: The Union with Scotland Act 1706 and the Union with England Act 1707 have effect subject to this Act”
end of quote
To clarify the context, the Bill Lord Mckay of Ardbrecknish is referring to is the bill that was being introduced in 1999 to reduce the number of Scottish peers in the House of Lords. Some Lords considered this could be construed as a breach of the treaty. The Scotland Act 1998 clearly could be seen as impinging article III of the Treaty of Union which says:
“That the united Kingdom of Great-Britain be represented by one and the same Parliament, to be stiled the Parliament of Great-Britain”
My interpretation of the meaning of the words included in section 37 of the Scotland Act 1998 is that the change of that article III by means of the Scotland Act that led to the opening of Scotland’s parliament had to be made in order for the union to continue.
This interpretation appears supported by this quote from Mr Enoch Powell extracted from the Debate SCOTLAND BILL which took place in the House of Commons in November 1977, prior to the 1979 referendum in Scotland:
“There is only one set of circumstances, there is only one context, in which it is right and logical to go to a part of the people of the United Kingdom and say “Do you agree with this or not?” Those are the circumstances in which such a question was put in 1973 to the people of Northern Ireland, namely, when the question is: “Do you want in or out?”
The reason why this referendum is to be limited to the people of Scotland is that the Government recognise—it is an implicit admission—that what is at stake in this Bill is the separation of Scotland from the rest of the United Kingdom, on which, of course, it should be the people of Scotland, and ultimately the people of Scotland only, who should have a voice.
Within Part 1, Chapter 2 (Ordinary Elections), point (6) of the Scotland Act 1998 this interesting bit is included:
“In this Act “the Scottish Seal” means Her Majesty’s Seal appointed by the Treaty of Union to be kept and used in Scotland in place of the Great Seal of Scotland”
Mmm, it looks like that pesky Treaty of Union also made its way into the Scotland Act in 1998. Of course Chapter XXIV of that old document called the “Treaty of Union” says:
“…and that a Seal in Scotland, after the Union, be always kept, and made use of in
all Things relating to private Rights or Grants, which have usually passed the Great Seal of
Scotland, and which only concern Offices, Grants, Commissions, and private Rights within that
Kingdom”
Ahh! it may be that this “old document” might still be important, so better use the seal that old piece of paper says that needs to be used after the union heaven forbid not using it could render the Act worthless, opening the door for independence of Scotland…
So, as you see with some “old documents”, as with genes and good whisky, age is just a number and the older the age, the more they are worth!
LikeLiked by 4 people
Please note this paragraph:
“The reason why this referendum is to be limited to the people of Scotland is that the Government recognise—it is an implicit admission—that what is at stake in this Bill is the separation of Scotland from the rest of the United Kingdom, on which, of course, it should be the people of Scotland, and ultimately the people of Scotland only, who should have a voice”
Is part of Mr Powell’s contribution to the debate in the HoC in 1977, not mine. On re-reading my comment I have discovered that I failed to include the inverted commas to show it is a quote. Apologies for my lack of attention.
LikeLiked by 4 people
It is very hard indeed to change what people already ‘know’ – even with the facts!
First, you would take the same route that Catalonia has taken, right? You cite the evidence that there is a good chance people would vote for independence and as the international community to step in. As it has done how many ties so far? Oh, that’s right, never! But hey, a good constitutional lawyer can work around that. Like the good constitutional lawyer trying to get the organisers of Catalonia’s referendum out of prison right now? Thank goodness for all those expressions of international outrage; they really changed the game! Not.
I will keep saying this for as long as it needs to be said. No one, no court, no international organisation, no party and no negotiation with Westminster is going to break the stranglehold of Westminster round Scotland’s neck. We will wither discover the route to exercising our popular, not national, sovereignty and walking out of this marriage or we will be having this conversation in the ashes of the currently dying planet.
In order to map our escape route, we need to be sure of our ground. But only because people *need* to know that they are in the right both morally and legally. (Why else were the Declaration of Arbroath and the Declaration of Clergy written and published?)
So we begin by setting the record straight, restoring the truth that has been denied for so long and getting up off our knees.
For the sake of the truth, then, although it is true that the sovereign state of Scotland *did* cease to exist with the Union, so did the sovereign state of England. The new state, as I have demonstrated and as Mia has also shown more than once, replaced both. And both wanted to keep their constitutional characteristics. It is easy to forget that in the early 18th century religion was a key component of that ‘character profile’, in both countries so that we see competing claims, popular power and freedom versus a kind of religious supremacy when no-one at that time, Catholic, Anglican or Presbyterian, could or would have separated them. Separation of Church and state is very modern idea indeed.
So what we see taking place is an Anglican and intensely feudal model, with its notion of God given hierarchies not unlike the Indian caste system, (with two kinds of untouchables, those at the top who are above every law and moral requirement and those at the bottom who have no rights whatsoever), attempting to form a Union with a militant Presbyterian/Jacobite-Catholic nation united behind the principle that they possessed, and always had possessed, the right to challenge authority, rebel, kill or throw out corrupt monarchs, reclaim civil rights and liberties when necessary and generally regard themselves as equal before God and in the eyes of the law.
What was ‘agreed to’, which is to say negotiated by the Queen’s Commissioners, is of the utmost impotence. A contract is based on professions of intent as well as the letter of the law. And the Treaty of Union is not a sacred charter but a legal contract. It is no different in that respect from any other contract. If that were not the case and if that did not matter profoundly (as Mia has demonstrated beautifully – thank you Mia), we should not have seen the spectacle of the various hired legal guns of the English establishment in Westminster attempting to rewrite the history, context and meaning of the Acts of Union for the past one hundred years.
If they take it seriously enough to fabricate a false history and an absurd legal interpretation in order to claim that they have not violated the terms of Union, then we ought to assume that it deserves to be taken that seriously.
What do we do about this? You have no idea how many European premieres or foreign secretary’s have been begging the Scottish government, “for pity’s sake, just do it! We will recognise you.” But you didn’t get to hear about that, did you?
And how do we do it. Here is one route. Step, by step, by step until we have a democratic and internationally recognised body qualified under the terms of the Treaty and the Scottish constitution to recall our MP’s (democratically elected on an indy ticket) and install a Scottish parliament of elected MP’s not answerable to Westminster but to the Scottish people. Without losing the assemblies and central ‘Convention’ so that we retain the power vested in the people, enable and ensure ‘disclosure, discourse and informed consent’ and guarantee that we never again fall subject to the corrupt tyranny that now characterises government. My preferred route. You coming?
(By the way, the video below now as 46K ‘views’. In early 2015 it had over 120K! It was hacked by someone and the viewing numbers vanished in tens of thousand at a time.)
Still want another referendum?
LikeLiked by 3 people
“You have no idea how many European premieres or foreign secretary’s have been begging the Scottish government, “for pity’s sake, just do it! We will recognise you.” But you didn’t get to hear about that, did you?”
Sara – that is dynamite – if this can be shown to YES then Sturgeon and her entryists will be finished. It is clear to all of us that the nuSNP either lack the inclination or the guts to claim our independence. This would make it clear to a whole additional raft of YES currently believing the SNP is the “only route to independence” when they are the very opposite of that – although I do appreciate the parties concerned may not want to be shown to step up for us when our own worthless SG will not.
LikeLiked by 3 people
“You have no idea how many European premieres or foreign secretary’s have been begging the Scottish government, “for pity’s sake, just do it! We will recognise you.”
You’re quite right, I’ve no idea how many. Enlighten us, And as for recognition, have they given a written guarantee that they’ll recognise us even if we declare UDI which appears to be the method you’re suggesting?
LikeLike
For all those who choose to criticise the work being done in putting the claim of right out there, just remember that the English media have been happily planting a seed in the National psyche. You know, the Henry the 8th clauses of 1539 and the right to bypass parliament. I’d say is now is very good time to be talking about this. It might not be pivotal, and in a sense I agree that the UN recognition of self determination is much more within the Overton window, but we have to ask why aren’t our representatives at holyrood giving it much more attention? Of course I think we know the answer to that.
LikeLiked by 7 people
How might an iScotland have voted on this UN resolution?
https://countercurrents.org/2021/12/u-s-and-ukraine-only-two-countries-vote-against-un-resolution-condemning-nazism/
I trust not with the «first world» herd. What Russia proposes…..oppose or do the next best thing, abstain.
LikeLiked by 1 person
The problem is that we never actually know what the people of any Nation think on any topic. From dictatorship to FPTP system all we ever see is the decision/view of the Political Ruling Elite. Who voted to invade Iraq? Who voted for a TransCult running the World?
The sound bites of 1914-18 “ Your Country needs you” are the same as “Take Back Control” for Brexit. Nothing is ever explained in detail. Look at “TransWomen are Women”, is that the view of Scotland? Canada? America? The World?….but every country, company and government is legislating that it decided.
The World was silent as the Irish were killed. The shock to the Empire came in the middle of the 20th. Century with Global coverage of the atrocities in India. What news do the Russians see…what News are we fed?
The answer to your question is that Scotland would vote at the UN as Sturgeon decided. She would use the votes gained from the same Indy voters ( now idol worshippers) to impose her opinion just as she is doing with the Cults demands.
In the 21st. Century it would be very easy to obtain the People’s Opinion on any topic….no politician wants to.
LikeLiked by 6 people
@ daveytee I would say that the internationally recognised route to independence is through a plebiscite election , where every political party can STATE what they are fighting the election on , the independence parties can fight the election on a STATED manifesto that if they win the majority of the seats either in HR or WM that is an INSTRUCTION from the electorate that they MUST dissolve the treaty
The unionist parties can either fight the election on a unionist ticket which they have done already for decades or they can fight it on relevant to them individual promises and policies
What they CANNOT do is refuse to participate in the election or refuse to accept the outcome , they in their wisdom can call for a blockade on voting from unionist supporters or they could boycott it but that wouldn’t affect the outcome
A plebiscite election IS a defacto referendum where the people of Scotland determine the way forward , it NEGATES all the arguments about an indy ref voter franchise , it is organised and managed in Scotland, finances are strictly controlled , there is no last minute vow interventions , there is NO DILUTION of the vote for DEVO MAX it is a straight yes or no vote
LikeLiked by 4 people
It may surprise some of you to know that I would like to be convinced by this Claim of Right malarkey. I’d like to be able to say that thanks to a ore-union anti Catholic rant the people of Scotland have a sovereignty of a type that their southern neighbours do not have. I’d like to be able to say “Look, under the Claim of Right we’re sovereign. you can’t tell us what to do, we’re off”. But I haven’t actually read anything here that has gone even half way to convincing me.
According to its proponents, the claim of right empowers “the people” with sovereignty. Well, who are these people? The term isn’t defined anywhere. Nowadays, for example, many people suggest that in any referendum on our future “the people” should not include those who have lived in Scotland for less than 10 years or some other term, anything to keep newly arrived English “settlers” from voting no. How about foreign nationals living here – would they be included in “the people”? Are those aged under 16? Are prisoners? Are Scots who live abroad? Are women? Just what is meant by “the people”?
If there’s confusion one would normally look at the intent of the legislature. Back in the 14th century, when the idea of popular sovereignty first appears to have been mooted by the Declaration of the Clergy and the subsequent one of Arbroath, the common people had no power whatever, women even less so if that were possible. Most common people were illiterate. Parliament was the domaine of the monarch and the nobility, and it was they, together with the Church, who made the rules. The idea that power should be given or even shared with the common people would have been unthinkable, as indeed it was throughout the rest of Europe. I think it without doubt that when back in those days people talked about the people having any power they were referring to the people who already had the power, i.e. the Establishment.
And by 1689 things in that respect hadn’t changed an awful lot. Thanks largely to improved schooling since the Reformation there was a higher degree of literacy, among men at least, but the people still had no public voice or power, and how would they express it if they did?, Parliament? There was no such thing as universal suffrage – indeed, voting was limited to only a very small proportion of the population, mainly the lords and the landowners though burgh representatives were eventually admitted but they too were normally the well-to-do. Parliament could only sit if it was required to so by the monarch, which it was why it was the Convention that sat in 1689, the monarch being unavailable. Having a parliament that can only sit if the monarch requires it to so so doesn’t sound much like people sovereignty to me. Basically, the common people continued to have no voice whatever.
Much is made of the right of “salvo”, but I wonder if there are any records of this right being exercised by and held in favour of any common person who could also afford the proceeding before the Court of Session that would follow? Not that it’s unique anyway – the Bill of Rights gave the English the right to petition the king, and today we can apply for a judicial review if we think Parliament is acting unlawfully. So the point is that throughout Scotland’s pre-union history, the concept of sovereignty by the people was, in current terms, a complete myth, and in the terms of the time a reference to the people who actually had the power, and no-one else. If we are to suggest, therefore, that the concept of popular sovereignty referred to in the claim of right has any validity, then it is only valid in in the context of the time when it was enacted. That makes considerable sense as, of course, genuine sovereignty remains with the Establishment to this day.
Meanwhile, I have watched the interview on Scottish Prism with Sara Saylers. Interesting, but am I convinced? Don’t be silly. I’ll be back later about that.
LikeLike
Davey, if it is ‘malarkey’ you cannot be convinced! But if you are open to the idea that it is a good deal more important than ‘malarkey’ then you might be. The question is not whether you want to be convinced, as you claim, but whether you are really open to thinking about it. Only you can answer that.
Start by asking yourself why ‘Magna Carta’ and the ‘Bill of rights’ are still considered core constitutional documents and binding on the Courts to this day. Then consider that the Union tis head together by another ancient document.
Then consider that the ‘core’ of these documents, as with the Claim of Right lies with the constitutional principles they articulate and which remain applicable today. As I’ve pointed out, the obiter in the High Court Ruling I quote in the introduction was given in 2016 and cites Dicey who bases the absolutism of parliament on the Bill of Rights passed in … 1689. Malarkey enough for the High Court to say that “The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament.”
At this time in our history it could not be more critical that this was not the positioning Scotland and, if the terms of that other bit of ancient history, the Treaty of Union, had been complied with this would still be the case.
Your understanding of the way in which the government in Scotland works is, whether you realise it or not, conditioned by histories that have been written through and english prism. We did not have access to the full records of the parliaments and their sister bodies until they were collected and published in 2008. So the picture of Scottish power and public participation which existed until then has largely persisted since then. It was not and is not true. You talk about the right to petition the king? Scotland did not just have the right to petition the king, it reserved the right to boot him – or her – out. And did. An act of the Scottish parliament, 1450, made it lawful to do so only with the agreement of parliament, something it took the English parliament two hundred years to catch up with and then it required a civil war to do it. As for those who could influence and vote in those parliaments … Ignoring the Gaeltacht where complex social strata existed, the history of the burghs demonstrates a powerful and reciprocal relationship between those urban centres and the government. Anyone who was a craftsman or ‘burgess’ had a right to vote. The Burgh Assemblies sent representatives to the Burgh Convention and this body often prevented unfair taxes being levied, upheld “common rights” or forced through legislation for “the common good”. (Examples int he rps.) The monarch, meanwhile was described as being ‘first among equals’ and in the Scottish parliament anyone with a right to vote was exempted from the requirement to ‘doff his hat’ before the crown. Charles I apparently found this scandalous when he first visited Scotland, having been used to the English custom of being knelt to by everyone. Galanas, the old clan custom whereby compensation was paid for to the entire kin for the murder of one of their members extended from royalty to any person who had family to claim it. (From the Duchas or kinship system of the Gaeltacht.) As for literacy … I refer you to the 19th century work of James Grant, ‘A History of the Burgh Schools of Scotland’ which goes through the records from pre-reformation schools to his own day and will alter irrevocably your view of the case. From the isles to the borders grammar schools taught the sons of merchants, blacksmiths, tanners, shepherds, coopers and craftsmen alike (providing bursaries for books, shoes and coats where necessary from the fund for the “common good’ and taught not only reading and writing and maths, but Greek and Latin and often Hebrew, astronomy, civics, philosophy, music and more depending on the skills of the schoolmaster. In the 16th century a Burntisland schoolmaster was sacked because he taught only reading and writing, with grammar, syntax etc. and mathematics and no Greek, Latin or Hebrew. Dames schools were less numerous but still common and these taught the younger children and girls reading, writing, home economics (book keeping and thrift), spinning, weaving, dying, the making of possets and basic herbal remedies and often music. As for Scottish justice, the ‘common man’ in Scotland had several courts of appeal against an unjust sentence and a capital crime had to be confirmed by the Lord Advocate before sentence could be carried out. (Now there’s a fascinating and revelatory are of research!) So the image you have from your history books is at odds with the records. Time to throw it out and start again.
And all that said, it does nothing to get you to put your objections into their real context. The real context is simple.
There are principles in English constitutional law which have been preserved and which still apply today. There are principles in Scottish constitutional law which were preserved and deserve to be applied today, in a modern context in exactly the same way that those English principles are upheld.
Stop talking about the action of the Claim Right in replacing a Catholic monarch with a Protestant and suppressing Catholicism and demand that the the same discernment is applied to our own Magna Carta as to the English one, and to the Bill of Rights i.e. that the anachronistic effects are treated separately from the underpinning legal principles. Why? Because they *can* change everything. Here is how and why, from Professor the Rt Hon Sir David Edward KCMG QC FRSE, a Supreme Court Judge, in SCOTLAND’S MAGNA CARTA: THE CLAIM OF RIGHT AND THE COMMON LAW:
“The justification for declaring that James has forfeited the right to the Crown relies on the antithesis between `a legal limited monarchy’ and `an arbitrary despotic power […] exercised to the violation of the laws and liberties of the Kingdom’. `A legal limited monarchy’ is a more explicit description of the constitutional position than is to be found in Magna Carta or the Bill of Rights. The monarch is bound by the law and his/her powers are limited by the law – an idea that might with profit be drawn to the attention of those of the Queen’s Ministers who seek to limit access to judicial review of executive action…Passing from the general to the particular, we should note four types of executive action that are said by the Claim of Right to be `contrary to law’ and do not figure in the English Bill of Rights.
First, `imprisoning persons without expressing the reason thereof and delaying putting them to trial is contrary to law’. Here one thinks of the inhabitants of Guantanamo and perhaps also some of those held in Belmarsh. The Virginia Declaration of Rights of 1776 was even more explicit in asserting that an accused person `has a right to demand the cause and nature of his accusation [and] to be confronted with his accusers and witnesses’. We are entitled to be satisfied that provisions for detention without charge or trial, and for `secret’ trials, and more particularly the way they are used case by case, are objectively necessary for a legitimate public purpose and that their exercise is proportionate.
Second, `sending letters to the courts of Justice ordaining the Judges to stop or desist from determining causes, or ordaining them how to proceed in causes depending before them is contrary to law’. Of course, all judicial decisions are legitimately open to comment and criticism. But more than one Home Secretary has sought to tell the judiciary how to apply (or how not to apply) the Human Rights Act. And there is an increasing tendency to invoke the doctrine of Parliamentary sovereignty, which properly applies only to duly enacted legislation, (ed he is wrong about that in Scotland if the CoR holds good!), to justify Ministers and other politicians in criticising, or even abusing, judges for disregarding their view of the law and how it is to be interpreted and applied.
Third – another assertion of the importance of judicial independence – `changing the nature of the Judges’ gifts ad vitam aut culpam into commissions durante bene placito is contrary to law’. The Latin phrases assert the distinction between appointment of judges for life (now, until statutory retirement age) or removal for misconduct, and appointment for only so long as the executive is well pleased with what they do. Protection of the judiciary against discretionary interference by the executive with the financial and other conditions of appointment and tenure remains an important element in the constitutional separation of powers.
Fourth, the Claim of Right declares that two judicial decisions of the Lords of Session were contrary to law. One of these had held that `[p]ersons refusing to discover [disclose] what are their private thoughts and judgments in relation to points of treason or other men’s actions are guilty of treason’. As the Investigatory Powers Bill passes through Parliament, we may legitimately demand, relying on the Claim of Right, that Big Brother will not be one of the reapers in the harvesting of data, and that our private thoughts and judgments as to other men’s actions will remain immune from intrusion or inquiry. Section 19 of the Terrorism Act 2000 has already breached that dyke.”
Not such ancient “malarkey” after all, is it. And its implications are not only relevant to the route to independence, even more immediately they are relevant to the curbing of governmental overreach right now and in matters that should be of concern to everyone.
LikeLiked by 2 people
All that’s fine, Sara, but you didn’t address my main point, namely that sovereignty by the people, if by “the people” you mean all the ordinary common folk of the land, is a total myth. Right up until the union the Scottish parliament was utterly unrepresentative of the people, comprising as it did a mixture of nobles, landowners, and well-to-do burgesses, and very few people had the right to vote. There couldn’t even be a parliament unless the king called for it. You now appear to be saying that all the people of Scotland, regardless of their situation, have sovereignty, but ignore the fact that that has never actually happened, either when Scotland was an independent country or since the union. All decisions of importance, then and now, are made by the people at the top who I call The Establishment. They make the rules, they manipulate the news, they are masters of propaganda, they lie and cheat, but ’twas ever thus. Sovereignty of the people? You jest, surely. And I think it borders on the absurd to turn to the world and say “Look here’s a right under which we all have sovereignty and you’ve got to recognise it. The fact that we ourselves have taken no practical steps whatever to recognise it over the last thousand or so years is immaterial”. Aye, that’ll be right.
I listened quite carefully to your interview with Roddy MacLeod. It’s fair to say he gave you a fairly easy time and didn’t ask a lot of the questions I’d have asked. You maintained that Scotland had a tradition of “full and free expression of the nation” but, not surprisingly, didn’t give any examples of it. You said that the two constitutions of England and Scotland were never going to gel, to which I would reply is why a new state with what amounted to basically a new constitution was created – unfortunately size and power matters and it was inevitable that, with a tiny number of Scots being drafted into the English parliament (where, unfortunately, they were despised), it would be the constitution of the larger country that would predominate. 315 years later it’s a bit too late to complain about that.
Also, what was the Scottish constitution? All I really know about it is that like the UK one it was unwritten and, again like the UK one, probably made up of various acts of parliament and conventions. It can of course be changed. That’s clearer with a written constitution, eg the US one, where amendments have to be specifically agreed and then appended to the original. With an unwritten constitution it’s much less formal and changes happen almost by accident and, dare I suggest, sometimes without anyone realising the constitutional implications. I don’t think you’re saying that the Claim of Right itself forms the constitution – I very much hope not in view of its religious provisions – and many things in it have been changed over the years by the Westminster parliament – we are no longer permitted to torture people, for example, even if we’ve got evidence against them, and there have been various acts passed by Westminster for the emancipation of Catholics.
There was one question I particularly wanted Roddy to ask you and thankfully he did – it’s all very well what is said about the Claim of Right, but what do you actually do with it? It’s the same question I’ve been asking for some time so I was particularly interested in your answer which I confess I found very unconvincing. You agree that no court, party or legislature was going to act on it, and then basically said that all we had to do was carefully look at the document, see what it says, and then “put this out to the people” and explain to them that the deal we made had been broken – “this is your right and we just do it”. I think that Roddy was slightly taken aback by this as he asked how this would be recognised, to which court we’d have to go, and you replied that we don’t go to anyone. “Bear in mind that they’re not going to let us go, we’re just going to have to go”. And you then opined that the rest of the world would accept that.
Roddy suggested that this would best be done through a Scottish Convention some nature, but didn’t go into details as to how that would be set up, who’d attend, how they’d be chosen, and who’d pay for it. I assume that if it was to represent the people people would have to be elected to it, and I bet that they’d adopt party affiliations and all we;d be left with would be another Scottish parliament. I assume that you’re not suggesting that Unionists should be barred from this process.
I’ve been giving further thought as to how we should proceed. It is essential that our secession from the UK is regarded internationally as legal. UDI almost certainly wouldn’t be. I think we have to ask for another section 30 order. But before she asks for that, NS or whoever happens to be in charge in Scotland at the time should instruct a top firm of international lawyers, quite probably outwith the UK, to prepare all the necessary papers necessary to file a case with the International Court of Justice to obtain a declaration under the UN charter that the UK’s refusal to allow Scotland to leave is illegal. The Prime Minister would be told that if no section 30 order was forthcoming within, say 14 days, the claim would be filed and our case given as much as publicity as possible worldwide. I’d like to think that that would embarrass and possibly even alarm the UK government enough to grand the required order. But then, of course, we’d still have to win the referendum (and I do think that a referendum is essential as we must show that independence is what the people, or at least a majority of them, want).
LikeLike