Publishing this in response to many requests to have the full document in print.
The Treaty Bites Back
A ‘ Forgotten’ Constitution, Scotland’s Claim of Right
Grateful thanks are due to Professor Keith Brown Dr Alastair Mann, Michael Penman, Kirsty McAlister and all those responsible for returning the ‘Records of the Parliaments of Scotland’ to their rightful place in Scottish history, tradition and modern Scottish law.
These records can be found here: https://www.rps.ac.uk
Copyright © 2022 Sara Salyers Published by Salvo
All rights reserved.
Table of Contents
1 Foreword by Professor Alf Baird
7 The Forgotten Condition of Union 10 The Scottish Constitutional Compact 13 The Story of the Claim of Right:
What Every Scot Should Know
17 Appendix: Demolishing Dicey:
the Strange Case of the Treaty that Wasn’t
25 The Claim of Right Act and List of Grievances (with short commentary)
Scots are all too often left uncertain and confused when considering the critical matter of their sovereignty, and intentionally so; for any colonial power will naturally seek to diminish the notion of native or national sovereignty that would inevitably interfere with a territory’s ongoing economic plunder and exploitation.
Ignorance of Scotland’s constitutional reality really hits the high notes when we get to the Claim of Right. The Claim of Right represents Scotland’s forgotten constitution, intentionally pushed out of sight and out of mind and hence denied us by our colonial oppressor, the latter including Scotland’s elites; colonialism, as Frantz Fanon reminds us, is always a cooperative venture.
The imposed sovereignty of a Westminster Parliament on Scotland’s people does not and never has corresponded with Scotland’s constitutional rights, namely, the rights conferred by the sovereignty of the people. In this is evident the distinct, cultural uniqueness of Scotland’s constitutional reality amidst the imposition of an alien English constitutional principle, the latter unlawful and in clear violation of the Treaty of Union itself.
This is because, as Sara Salyers explains, the Treaty itself is conditional on Scotland retaining its own distinctive constitution, contained and described in the Claim of Right Act of 1689. This condition means that the Scottish people retain the right to prohibit government actions or legislation which compromise their civil rights and freedoms. This is part of the ‘right’ referred to in the Claim of Right and enshrined in Scots law by the Act ‘salve jure cujuslibet’ of 1663, which allowed any Scot to challenge parliamentary legislation which infringed their civil liberties – and how refreshing is that kind of thinking even today, never mind the seventeenth century. And still necessary too, even in our supposedly more democratic times, when governments aye have a tendency to take forward legislation which all too often is intended to oppress the people rather than serve them, as Nelson Mandela once said.
It means, above all, that the Scots retain the right, even today, to remove a governing authority when it no longer functions in the interest of the Scottish people, this being the main purpose of the Convention of the Estates (the assemblies of the communities).
The ability to depose a monarch and/or remove an unwanted government remains arguably the central basis and purpose of the Claim of Right, vesting sovereignty firmly in the hands of the Scottish people themselves, rather than any shower of mankit elites in Westminster or Holyrood. Hence, constitutionally, it is the Claim of Right whit maks us Scots unalik maist ither naitions! Our constitutional reality is therefore diametrically opposed to the English doctrine of parliamentary sovereignty, the latter underpinning England’s constitution, but never Scotland’s.
The Scottish Claim of Right was never extinguished by the Treaty of Union; rather, the treaty was and remains conditional upon the continuance of the Claim of Right in Scotland. Westminster, which is not a party to the Treaty of Union but merely an outcome of it, cannot itself alter the original conditions of the treaty, this may only be done through agreement of the respective signatory parties – Scotland and England.
Rather than a case of England’s parliament subsuming Scotland, the treaty established and states as such that a new parliament was created as the First Parliament of Great Britain. Westminster is and remains a joint legislature and governing administration established by treaty and is therefore a consequence of a treaty-based alliance between two sovereign nations, each still holding and retaining separate and distinctive constitutions. In other words, the two sovereign signatory party nations to the Treaty of Union continue to exist, as does the continuation of their quite different constitutions, the respect of which remains a condition of that agreement, failing which there can be no ‘union’.
The real problem here is that Westminster has and continues to pay lip service to the reality of Scottish sovereignty, while treating Scotland as subject to England’s constitutional parliamentary sovereignty, and hence dismissing Scotland as a distinct sovereign entity with its own constitutional rights. England, and it has to be said also the Scottish elites, has disregarded the Claim of Right as enshrined in the treaty and ignores the fact that ultimate power in Scotland rests with the sovereign Scottish people, a power which they have the right to exercise through the Convention of the Estates as the assembly of all the communities of Scotland.
Scotland’s list of grievances are many, as reflected in numerous violations to the Treaty of Union, an enforced Brexit merely being the latest in a long list. Moreover, the electorate’s instructions conveyed to Scotland’s politicians in favour of independence, repeatedly given by the people, have been disrespected by the SNP at both Westminster and Holyrood, which under the Claim of Right serves as further violation of the peoples’ liberty and possible grounds for forfeiture of the right to govern.
As Sara Salyers explains in this excellent analysis of Scotland’s Claim of Right, the Convention of the Estates must now be re-convened as what it is – the representation and assertion of ultimate, sovereign power of the people of Scotland – its principle function being to prevent Scotland from being subject to ony arbitrary despotick pouer, or to unjust laws, and to withdraw Scotland from this mankit Treaty of Union or any other treaty that may no longer be in Scotland’s interest.
Professor Alf Baird
The Laws of Government, (in Scotland), continue as the Government continues establish’d in the Claim of Right, I mean as to the Limitations of Government and Obedience (Daniel Defoe)1
In 2016, the High Court in England heard an appeal against the government’s decision to trigger Article 50 of the Treaty on the European Union without consulting parliament. In its ruling, (which went against the government), the High Court took pains to assert that the authority of parliament is supreme in all parts of the UK and to state explicitly that it has no need to take account of the wishes of the people:
(b) The sovereignty of the United Kingdom Parliament
- It is common ground that the most fundamental rule of UK constitutional law is that the
Crown in Parliament is sovereign and that legislation enacted by the Crown with the consent of both Houses of Parliament is supreme (we will use the familiar shorthand and refer simply to Parliament). Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses. There is no superior form of law than primary legislation, save only where Parliament has itself made provision to allow that to happen. The ECA 1972, which confers precedence on EU law, is the sole example of this.
- But even then Parliament remains sovereign and supreme, and has continuing power to remove the authority given to other law by earlier primary legislation. Put shortly, Parliament has power to repeal the ECA 1972 if it wishes.
- In what is still the leading account, An Introduction to the Law of the Constitution by the constitutional jurist Professor A.V. Dicey, he explains that the principle of Parliamentary sovereignty means that Parliament has: “the right to make or unmake any law whatever; and further, that no person or body is recognised by the law … as having a right to override or
set aside the legislation of Parliament.” (p. 38 of the 8th edition, 1915, the last edition by Dicey himself; and see chapter 1 generally). Amongst other things, this has the corollary that it cannot be said that a law is invalid as being opposed to the opinion of the electorate, since as a matter of law:
“‘The judges know nothing about any will of the people except in so far as that will is
- (Dafoe pub. 1786)
3expressed by an Act of Parliament, and would never suffer the validity of a statute to be questioned on the ground of its having been passed or being kept alive in opposition to the wishes of the electors.” (ibid. pp. 57 and 72).2
- The importance of parliamentary sovereignty is that it defines the relationship between the people and the government in the U.K.
- At present, Parliament is recognised as being sovereign over the people, with the power of an absolute monarch, and, at the same time, the elected representative of those same people, all their rights and all their interests. As a result, all our civil rights and obligations exist at the discretion of parliament.
- The only mechanisms by which the people are allowed to influence the policy and decision making of parliament or the government are voting in elections or by petitioning the government. Neither one is guaranteed to produce a result that reflects the will of the people, even of the vast majority of the people. This, however, is what we have accepted as a democratic system, one in which the rights and responsibilities of every man and woman are vested in a handful of politicians with no legal obligation to represent our real wishes or interests.
- This is what the High Court ruling of 2016 reaffirmed. But because something has been ruled on, even by the highest Courts in the land, does not always make it true or lawful. In the first place, no court has authority to make, remake or ignore constitutional law. In the second, the arguments supporting the legitimacy of parliamentary sovereignty in Scotland do not stand up to scrutiny.
- And, there is a Scottish constitution, though it is ignored by this ruling and many others. It is written, though it has been forgotten or denied. It may be basic and undeveloped but it is robust. And it was ratified along with the Articles of Union, as a condition of both the Treaty of Union and the Union itself. It is set out in the Claim of Right Act of 1689. We know it as popular sovereignty.
- In direct opposition to the English doctrine of parliamentary sovereignty, sovereignty in Scotland is reserved to the people of the nation. Popular sovereignty constrains the powers of government and makes the government answerable to the people, to the extent that any statute or policy is open to national challenge and rejection. As is any government that oversteps its bounds. At least, that was the case until the Treaty of Union and it was certainly intended to continue to apply in Scotland after the Union, as we shall see.
- The passage of time and the acceptance of the customs of English constitutional law as universal norms across the UK, make this description of Scotland’s constitutional law seem like a romantic interpretation, more wishful thinking than fact. In reality, however, it is the status of parliamentary sovereignty in Scotland that is wishful thinking. As Lord Cooper famously remarked:
- Miller & Anor, R (On the Application Of) v The Secretary of State for Exiting the European Union
“the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish Constitutional Law”3
Not only has it no counterpart, it might be more exact to say that the constitutional right of the Scottish people to override parliamentary legislation or set aside the government itself, has no counterpart in English Constitutional Law. In fact, under the Claim of Right, the very assertion that Westminster has absolute sovereignty over the people of Scotland is an explicit violation of “the fundamental constitution of Scotland”. Which makes the High Court ruling not merely erroneous but unlawful.
It also means that the Diceyan argument, cited in the High Court ruling, with its focus on the relationship of the Treaty to the Acts of ratification, (or Acts of Union), and of the Acts to the UK Parliament, is secondary to a more fundamental relationship; the relationship of the Union itself to the conditions that were imposed, agreed on and ratified. (For this reason, the second objection to the High Court Ruling, its interpretation of constitutional power in the United Kingdom according to the arguments of A. V. Dicey, is addressed in the appendix.)
The force of the ratified Scottish constitution cannot lawfully be replaced by the force of the English Constitution simply because Westminster wishes it so, which is why Lord Cooper made his obiter as he did. And rewriting or recasting the terms, context and meaning of the Treaty of Union are not among the ‘sovereign’ powers of Westminster. The UK government is – and long has been – in breach of a permanently binding and still ‘live’ condition of the Union. It is past time to rectify that breach and to return to the rule of law instead of a version of law that is simply establishment wishful thinking.
The people of Scotland have the right to demand the return of their sovereignty over the government, both in Westminster and Holyrood. This includes the right to challenge and strike down laws and statutes that violate “the lawes and liberties of the Kingdome”, (especially human and civil rights), and the right to declare a government “forfeit” which has abrogated the sovereignty of the people and assumed an absolute authority to “case anull and disable” the laws that exist for the protection of the freedoms, lives and wellbeing of the people.
It is time to end the indignity of being ignored in our millions, as we go cap in hand for justice and humanity to those who use a power that is only loaned to them against those from whom they have borrowed it. There is more at stake here than independence from Westminster and the establishment of a sovereign, Scottish state. Arguably, the most pressing struggle of our time is not the struggle of a small nation against the domination of a larger one but the struggle for human and environmental rights and interests against the power and vested interests of a controlling and unaccountable elite. Any hope of replacing the present, broken power structures in Scotland depends on independence. But it has never mattered more what kind Scotland we could create, independent or not.
- McCormick vs the Lord Advocate 1953
Scotland’s forgotten constitution can offer a pathway to freedom from Westminster rule. But it might contribute something even more important in terms of global change. It might help to propel a wider shift in the balance of power, away from the obscenely disproportionate control of an unaccountable minority and towards the legitimate authority of the people. And by reclaiming its own constitution, Scotland has the potential to blaze a trail for the kind of democracy that the world now urgently needs.
The Forgotten Condition of Union
When the parliaments of England and Scotland ratified the Treaty of Union in 1706 and 1707, a new state came into existence, the United Kingdom of Great Britain. The negotiations for this single, unified state had been long and difficult and there was one, especially thorny obstacle. The two nations had opposing and irreconcilable constitutions.
In England, (from the Bill of Rights in 1689), parliament and the crown were ‘sovereign’ over the people. Parliament set the limits of law and of civil liberties and answered to no higher authority. In contrast, the source of power in Scotland was – and remains – the nation itself; it is the people who are sovereign over and who limit the power of government.
This is known as popular sovereignty and this uniquely Scottish constitution has existed for at least seven hundred years as recorded:
⁃ in the Declaration of Arbroath of 1320,
⁃ in the interregnum governments of the Greater Council during the minority of four
⁃ in the practice from 1592, codified in 1663, of salvo jure cujuslibet at the end of each
parliamentary session, (by which Scots could challenge the Crown or parliament over
legislation that prejudiced their ‘private’/civil rights)
⁃ in the Claim of Right Act of 1689,
⁃ and in the continuing provision in Scots law for the population to have any statute set
aside by the Court of Session.
The incompatibility of the two constitutions was never resolved. Instead, it was agreed that
the two nations would retain their constitutional differences, with a guarantee that in post- Union Scotland the conditions of popular sovereignty would continue. This guarantee took the form of an insertion into the ratifying Acts, (the Acts of Union):
Union with Scotland Act 1706, 1706 CHAPTER 11 6 Ann X1 Recital of Articles of Union, dated 22d July, 5 Ann.; and of an Act of Parliament passed in Scotland, 16th January, 5 Ann.)
Most gracious Sovereign
Whereas Articles of Union were agreed…. And that Your Majesty with Advice and Consent of the Estates of Parliament for establishing the Protestant Religion and Presbyterian Church Government within the Kingdom of Scotland had passed in the same Session of Parliament an Act intituled Act for securing of the Protestant Religion and Presbyterian Church Government which by the Tenor4 thereof was appointed to be inserted in any Act ratifying the Treaty and expressly declared to be a fundamental and essential Condition of the said Treaty or Union in all times coming…
Article XXV Part II
And the Tenor of the aforesaid Act for securing the Protestant Religion and Presbyterian Church Government within the Kingdom of Scotland is as follows.
… And more especially Her Majesty with Advice and Consent aforesaid ratifies approves and for ever confirms the Fifth Act of the first Parliament of King William and Queen Mary intituled Act ratifying the Confession of Faith and settling Presbyterian Church Government with all other Acts of Parliament relating thereto in Prosecution of the Declaration of the Estates of this Kingdom, containing the Claim of Right bearing date the Eleventh of April One thousand six hundred and eighty nine …
… And it is hereby statute and ordained that this Act of Parliament with the Establishment therein contained shall be held and observed in all time coming as a Fundamental and Essential Condition of any Treaty or Union to be concluded betwixt the two Kingdoms without any Alteration thereof or Derogation thereto in any sort for ever As also that this Act of Parliament and Settlement therein contained shall be insert and repeated in any Act of Parliament that shall pass for agreeing and concluding the foresaid Treaty or Union betwixt the two Kingdoms and that the same shall be therein expressly declared to be a Fundamental and Essential Condition of the said Treaty or Union in all time coming which Articles of Union and Act immediately above written Her Majesty with Advice and Consent aforesaid statutes enacts and ordains to be and continue in all time coming the Sure and perpetual Foundation of a compleat and entire Union of the two Kingdoms of Scotland and England under the express Condition and provision
- The phrase ‘by the tenor thereof’, is a legal term meaning ‘the exact copy of’.
that this approbation and ratification of the foresaid Articles and Act shall be no ways binding on this Kingdom until the said Articles and Act be ratified approved and confirmed by Her Majesty with and by the Authority of the Parliament of England as they are now agreed to approved and confirmed by Her Majesty with and by the Authority of the Parliament of Scotland5
Thus the Claim of Right Act was ratified along with the Treaty, not as one of the articles of the Treaty (though it has been inserted under Article XXV), but in its own right, as, “a fundamental and essential Condition of the said Treaty or Union” so that, as Daniel Defoe wrote, in post-Union Scotland:
The Laws of Government continue as the Government continues establish’d in the Claim of Right, I mean as to the Limitations of Government and Obedience; Nor has Scotland suffered any Loss, but rather been a manifest Gainer in this Point by the Union; The Privy Council Tyranny being abolish’d, who had arrived to that Height in Scotland, as to give their Acts almost of an equal Authority to Acts of Parliament…6
Defoe was a merchant, businessman, nonconformist, writer and pamphleteer, (some 545 pamphlets are ascribed to him) , as well as the confidant and spy of King William II. Some of his writings are considered the earliest examples of modern journalism and they provide us with a record of a contemporary awareness of the constitutional problem and the recognition that it was resolved by the ratification of the Claim of Right.
But what was understood in 1707 has been air-brushed out of official history. Not even our devolved government appears to remember that the Claim of Right articulates the core constitution of Scotland – or that both the Treaty and the Union are conditional on the constitutional principles it contains remaining in force, and protected, in Scotland. Nor to understand exactly what was – and still is – legally protected.
- Union with Scotland Act 1706
- (Dafoe, 1786)
The Scottish Constitutional Compact
Power in Scotland is vested in the people and loaned to the monarch and parliament for the good of the realm. A bit like a bank loan, this power loan has always carried certain conditions which form a compact between the lenders, (the people), and the borrowers, (the government). Under that compact no government may infringe the rights and liberties of the people, or violate the laws that protect them, on penalty of removal. This is the heart of the Scottish constitution, popular sovereignty.
The compact was embodied in two separate assemblies. One, known from the 16th on as the Convention of the Estates, (Assembly of the Communities), represented the lenders, the nation or people. The other was the parliament or Three Estates which, along with the monarch, was the borrower, the government.
A near universal misunderstanding treats these two bodies as though they were somehow one and the same parliament. This may be because the Convention has no parallel in English governance, where popular sovereignty is an alien concept and where an absolute parliament in place of an absolute monarch looks like a paragon of democracy. But through a Scottish prism, Scotland’s two assemblies unquestionably represent the two sides of the constitutional compact.
The Scottish parliament, in common with that in other European nations, was exclusively summoned by the monarch and was considered a permanent body, however often it sat. It contained a number of elected members from the shires and burghs as well as nobles and prelates. Its role was to enact the decisions of the monarch, though it not infrequently provided important checks and balances to the royal prerogative. And it had no pretensions to the absolute sovereignty claimed by the English Parliament from 1689 on, quite the reverse.
Salve jure cujuslibet
The Scottish Parliament acknowledged the Crown’s responsibility to the people through the practice, from 1592, of offering ‘salvo’ at the end of every session: any person who wished to do so was invited to challenge the legitimacy of any legislation that prejudiced their civil rights or freedoms. (It was made law by the Act salve jure cujuslibet in 1663.)
“After the Act of Union was passed on the 16th of January 1707 there was one further item of business, as there was at the end of every session of the Scottish parliament and that was the Act of Salvo (salve jure cujuslibet – let whosoever sue the Crown). This was a gesture respectful of the Scottish constitutional arrangement whereby the People are sovereign and every subject of the kingdom must be respected both as an integral and individual unit of sovereignty, much like any part being representative of the whole of a hologram. Every subject was thus left with the means of escape, the private right to contract out if they felt they had been wronged by the action of the Crown. The English parliament, in 1689 having reduced its subjects to citizens behoven to the sovereign court of Westminster gave no such opportunities for redress and still does not, but the parliament in England cannot claim now to have inherited powers over the subjects of Scotland that the Scottish Parliament did not have.
There is a facility in Scots Law, for example, whereby, if the People choose to universally and completely reject a piece of legislation, the Court of Session can declare that law to be ‘in desuetude’ or obsolete.”7
- Attributed to Willie MacRae, lawyer, naval officer and orator, 1985
The Convention of the Estates
The existence of a body representing not the monarch or the monarch’s government but the ‘community of the realm’ can be traced from the time of the Guardians of the Realm in 1286, through the period of the General Council, (from the late 1300’s), to its final expression as the Convention of the Estates, (meaning ‘assembly of the communities’).
The Convention of the Estates did not govern except in the absence of a legitimate monarch (and, therefore, of the parliament). It was not a permanent body but was recalled as needed. It could be – and often was – called by the monarch, (especially when funds ran low), but it was not the instrument of the crown. It was the broker between the people and the government, agreeing taxes, drafting legislation and, when necessary, recalling the loan on the basis of breach of contract, which is to say deposing the monarch and government of the day.
The very real extent of its powers was demonstrated dramatically and for posterity in 1689 when it met on behalf of the nation and declared, in the Claim of Right, that James VII had broken the compact with the people, had “invaded” the fundamental constitution of Scotland and had thus forfeited the throne.
The ‘Revolutionary Convention’ members would be appointed to the new parliament of William II, replacing the parliament that had been abolished along with the rule of James VII. The Convention itself has never been recalled. But so long as the sovereignty of the people remains the basis of Scotland’s constitution, the Convention remains as a legitimate mechanism of popular authority.
The Story of the Claim of Right – What Every Scot Should Know
A written constitution
The Claim of Right Act, passed in 1689 to legally depose James VII and II, affirms the existence of an enforceable, Scottish constitutional arrangement where the sovereignty of the people limits the power of government. It comprises two distinct elements:
a. the action or effect of the statute in: deposing and replacing James VII and II, ensuring the continuation of a protestant monarchy, assuring the power of the Presbyterian Church in Scotland and excluding Catholics from any position of influence in Scottish society
b. the constitutional grounds on which this was legally justified
Action and force have been overtaken by time and social change. The grounds on which the Act was passed, however, the limitation of governmental power and the right of the nation to enforce those limits, or popular sovereignty, represent a written and protected constitution. Specifically, the Claim asserts:
I. a “fundamental constitution” by which the government in Scotland is legally limited
II. a definition of unlawful ‘invasion’ (violation), of Scotland’s constitution which is the replacement of a “legal limited monarchy” (government) with absolute (sovereign) rule
III. examples of constitutional violation through breach of those laws that preserve civil rights
IV. the prescribed consequence of violation: the forfeiture of power in Scotland
V. the right of the nation to act through the Convention of the Estates as the “full and free expression of the nation”
VI. the right of the nation, through the Convention, to declare the violator illegitimate
Whatever status historians or courts would prefer, now, to believe about our longstanding, Scottish constitution or the principle of popular sovereignty that is its heart, with the Claim of Right Act, it became written and statutorily codified. Along with the articles of Union, it was ratified and protected as a condition of the Union itself. A legal barrier exists, therefore, to any government seeking to remove Scottish civil rights and liberties. This has not, however, presented a practical barrier to successive governments in either Westminster or,
indeed, Holyrood who have behaved as though they were sovereign over the people, rather than the other way around, and without so much as a gesture towards the Act of Salvo, or redress.
Aided by the long absence of our parliamentary records and some complex, (if not dishonest), arguments about the effect of the Treaty of Union, a ‘de facto’ overthrow of the real seat of power in Scotland, the people of this nation, has taken place. But this unlawful seizure of power has depended on ignorance and division for its continuance. Knowledge and a unified people can reverse it.
Why does it matter who enacted the claim of Right?
Its standing in UK law is such that the Claim of Right remains a core constitutional document, yet no parliament was involved in its passage. Rather, the Scottish Parliament, dependent on the monarch for legitimacy, was deposed de facto by the Convention of the Estates when James VII was declared to have forfeited the throne. This is the clearest possible illustration of the distinction between the Convention and the Scottish Parliament, a distinction that, once, would have been natural to any Scot.
But our own history has been written for us for so long that those who take an interest in the subject simply nod along with the historians and jurists who bundle the Convention of the Estates into the apparatus of the Scottish Parliament like some unnecessary and inexplicable, bodily appendage.
The truth is that, like every other Convention of the Estates, the 1689, ‘revolutionary’ Convention was the representative body of the lenders of power, the people of Scotland, not of the borrowers, the absent king James and his parliament. It comprised nobles, clerics and elected representatives from the burghs and shires, (following a heated and dramatic election campaign). And it had the authority to put the conduct of the monarch to public trial, to rule on the forfeiture of his right to the throne, to articulate the constitution that had been violated and to pass into law the constitutional statute, the Claim of Right. We know this because it did so.
Both this truth and its implication escaped that famous jurist, Dicey, who complained that the Claim of Right makes unacceptable and dishonest claims to power on behalf of the Scottish Parliament and that it represents:
In effect a demand for every power belonging to the Parliament of England … far exceeding any power which (the Scottish Parliament) actually possessed and exercised before the Revolution of 16898
Of course, this is partly true; the Claim of Right did, (and does), claim the absolute powers exercised by the English parliament – but not for the parliament of Scotland, the borrowers
- (Dicey and Rait, 1920)
of power. It claims them on behalf of the lenders, the community of the realm, the people of Scotland of which the Convention of the Estates was, as it states, the “full and free expression”.
On behalf of the nation, not the apparatus of state.
A key constituent of the lawful disposition of power in Scotland has been both misunderstood and overlooked by the high priests of UK constitutional orthodoxy, who have consequently misunderstood and misrepresented the superior rights of the Scottish people to those of any parliament.
Those rights, as we have seen, still stand, their force in Scotland protected as a condition of the Union. And as the embodiment of those rights, the Convention, along with the right to recall it, must remain as much protected by ratification as the principles that are the explicit foundation of the Claim of Right.
Ground to Stand Upon
We have a constitution binding on the UK State
The Claim of Right remains a core constitutional document of the United Kingdom. The conditions it imposes on any government in Scotland remain in force so long as the Union remains in place. This means that there is a route to challenge and to claim redress for any parliamentary statute that exceeds the limits of government in Scotland and infringes our constitutional liberties. It also offers a lawful and non-parliamentary route to independence.
We have a constitutional mechanism and the right to recall it
The Convention of the Estates (the assemblies of the communities) remains the physical expression of the nation in the constitutional compact. There can be no popular sovereignty without the means to exercise that sovereignty. Traditionally that has been the Convention of the Estates, a body which represents the lenders of power, (the people), independently of the borrowers of power, (the elected parliament and government). As popular sovereignty is protected so is the right to exercise that sovereignty through the assembly of the communities of the realm, the Convention of the Estates which remains on a kind of legal ‘stand’ to be recalled for this purpose.
We Have a Modern Claim of Right and the Means by Which to Enforce it
We have the right and the power to challenge the legality of parliamentary sovereignty in Scotland and to reverse the abuses committed against our protected rights. We have, in principle, both the right and the constitutional mechanism to declare this government forfeit under the conditions set out in the Claim of Right and ratified by the parliaments of England and Scotland.
The sovereign power of the Scottish people is equally divided amongst us. It has force only through the combined will of the majority of Scots. If we are to reclaim that power, we will have to unite, to reestablish the once flourishing tradition of Councils, Conventions and Assemblies, to begin the process of declaring the “invasion” of our constitution unlawful and to begin replacing an unconstitutional government and power system with the best expression of self-government that we can imagine.
We will have to be brave enough to believe that we can do it. But is that really a bigger ask than taking on the Westminster juggernaut and trying to win the game on their playing field and by their rules? As if our own did not exist? Or is it just a matter of taking the first step? The door is open. We need only walk through it.
Demolishing Dicey: the strange case of the treaty that wasn’t
In 1689, the English Parliament enacted its Bill of Rights. This was the same year in which that other, central, UK constitutional document, the Claim of Right was passed in Scotland. The force and intent behind the two Acts were the same, the removal of the Catholic monarch (King James VII) and his replacement with an acceptable alternative, William of Orange. The ways in which these two Acts codified the power of government, however, were diametrically opposed.
The Bill of Rights replaced the absolutism of the monarchy with the absolutism of the English Parliament in what is known as the doctrine of parliamentary sovereignty.
The rule of law also requires the government to exercise its authority under the law. This requirement is sometimes explained with the phrase “no one is above the law.” During the seventeenth century, however, the English monarch was vested with absolute sovereignty, including the prerogative to disregard laws passed by the House of Commons and ignore rulings made by the House of Lords. In the eighteenth century, absolute sovereignty was transferred from the British monarchy to Parliament, an event that was not lost on the colonists who precipitated the American Revolution and created the U.S. Constitution9
Since the constitutional settlement brought about by the Bill of Rights, 1689, the UK Parliament has had unchallenged authority to create primary law.10 Parliament’s legislative supremacy means, therefore, that there is no competing body with equal or greater law-making power and there are no legal limits on Parliament’s legislative competence.11
In England, Parliament has supreme authority in every jurisdiction, including the rights of the individual. Any of those rights which we might assume to be somehow constitutionally or legally protected, (individual or collective, from tenants’ rights and workers’ rights to basic human rights), exist at the will and favour of the UK Parliament. But in Scotland, such absolutism is specifically rejected as unlawful and ‘despotyck’ by the contemporary Claim of Right. James VII and II was deposed on the grounds that he:
“Did By the advyce of wicked and evill Counsellers Invade the fundamentall
- (Arora, 2017)
- As a matter of accuracy, there was no UK Parliament in 1689 and it would not exist for another 18 years 11. (Dennett, 2019)
Constitution of this Kingdome And altered it from a legall limited monarchy to ane Arbitrary Despotick power.”
This is the clearest possible statement of the principle that, in Scotland, an unaccountable, absolute (“despotyck”) government is contrary to “the fundamentall Constitution of this Kingdome”.
To this day, the English Bill of Rights and the Scottish Claim of Right remain incompatible. Both Acts, however, were passed eighteen years before the Treaty of Union was ratified and so neither Act had any effect on the other’s government. Sovereignty has been represented, nonetheless, as the central character of the UK Parliament.
As expressed by Victorian lawyer A.V. Dicey, whose ‘The Law of the Constitution’ “has been the main doctrinal influence upon English constitutional thought since the late-nineteenth century”, it remains the underpinning legal authority for even Supreme Court judges.
The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament . . . has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.12
the sovereignty of Parliament is (from a legal point of view) the dominant characteristic of our political institutions.” (It is) … “is no less than “the central principle” of the system, “on which all the rest depends”13
It is impossible to exaggerate the importance of the claim that Westminster’s sovereignty lawfully extends into Scotland. If Westminster is sovereign in Scotland, it can remove or alter any Scottish legislation at will. It has already done so. Rights to protest, to expect safe and decent working conditions, to demand and get decent wages, to expect that taxes should be collected fairly and without special ‘arrangements’ for the few, to demand safe, healthy and sustainable industrial and environmental practices and much, much more are non- existent. They may be granted or removed at will. And it is for Westminster to determine any alteration in the terms of the Union. If Westminster is sovereign in Scotland, the sovereign nation of Scotland is not sovereign at all.
Given the status of the Claim of Right, however, the absolutism of Westminster can only apply in Scotland if something extinguished it in Scotland, along with the Parliament. But if so, what and how did it do so? What legal mechanism has left Scotland with England’s constitutional arrangement instead of her own? The argument, most notably put forward by Dicey, and so widely accepted that it is almost a required tenet of legal faith, runs as follows:
• The Union was not created by the Treaty but by the Acts of Parliament (Acts Union),
- (Dicey, 1889)
- (The EU Bill and Parliamentary sovereignty – European Scrutiny Committe, Written Evidence from Professor
Adam Tomkins, John Millar Professor of Public Law, University of Glasgow, 2010)
which replaced the Treaty as the governing instruments of the Union;
• Of the two Parliaments which created it, one (the Scottish) ceased to exist at the Union and the other (the English) remained;
• (Implicit) There was no other seat of power in Scotland, the Scottish Privy Council having been abolished, and therefore the whole structure of Scottish government and of constitutional power was transferred to Westminster;
• Westminster, whose unbroken, English traditions continued unchanged, subsumed into itself the power of the Scottish Parliament so that Westminster may now alter the laws and government of Scotland as it wishes;
• Parliamentary Sovereignty passed from the English Parliament to the UK Parliament in Westminster and, (as this was the larger and only remaining Parliament), thereafter applied uniformly across both England and Scotland
We have already seen that this argument entirely ignores the status of the Claim of Right as a ratified condition of the Union. If there was no danger that this status might be misrepresented as being subject to Westminster’s sovereignty, (along with all the other articles of the Act of Union), we could ignore Dicey completely. Given the logical contortions which are already required by the Diceyan argument, however, that is not beyond the bounds of possibility. And so it remains important to establish whether the Diceyan argument is solid or not.
It depends on whether or not the first two propositions are true. If they are true, (and if the ratification of the Claim of Right is just another Article of Union!), then it can be argued that Westminster extended the reach of its absolute sovereignty into Scotland in 1707 and is still entitled to do so. That would mean that any aspiration of the Scottish people to independence from the rest of the UK is simply the ambition of a component part of a whole, a component which is subject to the authority of the UK Parliament and dependent on that Parliament for permission to separate itself from the larger body.
If they are false, however, then so is Westminster’s right to behave as though Scotland’s constitutional provisions and safeguards had ceased to exist. And there is not merely a flaw in the Diceyan argument; there is error, omission and one absurdity so glaringly obvious that, once seen, it becomes as naked as Andersen’s Emperor.
Argument: The Union was created by the Acts of Two Parliaments which replaced the Treaty as the governing instruments of the Union
The history and texts of the Acts of Union record the roles of the Parliaments of England and Scotland, not as the creators of the Union, but as the ratifying bodies whose statutes, the Acts of Union, gave force to a treaty, The Treaty of Union:
• Both Parliaments agreed to the opening of negotiations for Union in 1705. Following this, thirty one Commissioners were appointed from each country. Royal Commissioners, reporting to the monarch and negotiating terms, represent the process of agreement to a treaty. It is a wholly distinct and separate route from that which is, or ever has been followed in the enactment of a Parliamentary Bill.
• The resulting agreement, the Treaty of Union, was ratified in 1706 (England) and 1707 (Scotland) by the incorporation of the Treaty Articles into Acts of the English and Scottish Parliaments known as the Acts of Union. Neither the Parliament of England or Scotland drafted the wording of what should, more accurately, be known as the Acts of Ratification. And no parliament requires to ‘ratify’ its own legislation:
(an) “Act ratifying and approving treaty of the two Kingdoms of Scotland and England. [January 16, 1707]
(Preamble) The Estates of Parliament, considering that Articles of Union of the Kingdoms of Scotland and England were agreed on 22nd of July, 1706 by the Commissioners nominated on behalf of this Kingdom, under Her Majesties Great Seal of Scotland bearing date the 27th of February last past, in pursuance of the fourth Act of the third Session of this Parliament and the Commissioners nominated on behalf of the Kingdom of England under Her Majesties Great Seal of England bearing date at Westminster the tenth day of April last past in pursuance of an Act of Parliament made in England the third year of Her Majesties Reign to treat of and concerning an Union of the said Kingdoms …
Article XXII That by virtue of this Treaty, Of the Peers of Scotland at the time of the Union 16 shall be the number to Sit and Vote in the House of Lords, and 45 the number of the Representatives of Scotland in the House of Commons of the Parliament of Great Britain; … Which Act is hereby Declared to be as valid as if it were a part of and ingrossed in this Treaty14
• Neither Parliament pretended that the creation of the Union between two sovereign and independent nations was within its competence. Nor would such a claim have made sense to the negotiators, since agreements between sovereign nations can only be concluded by treaty. The treaty then stands above the domestic law of both nations so as to impose obligations and conditions jointly on the signatories, ensuring that neither can alter it unilaterally other than in specifically explicit and pre-
- Records of the Parliaments of Scotland
agreed exceptions. (Such as those itemised in the Articles of Union.)
Thus the two parliaments ratified a contractual partnership between the Kingdoms of England and Scotland through a treaty which, in common with all treaties, conferred certain rights and imposed certain obligations on both parties. It came into force at ratification.
The English ratifying Act approved the Articles and the Scottish Act without further amendment, and enacted that “the said articles of union so as aforesaid ratified approved and confirmed by Act of Parliament of Scotland and by this present Act… are hereby enacted and ordained to be and continue in all times coming the complete and intire union of the two kingdoms of England and Scotland”. This did not however and could not make the English Act the sole constituent of the Union, as the parliament of England had no legislative power in relation to Scotland.
Ratification did not convert the Treaty into an Act or Acts, nor are there words in either Act which incorporated the Treaty or any part thereof into Scots or English domestic law, as is now sometimes done with international conventions. Ratification implies that the Treaty had been made already and expressed that it had been finally accepted and was beyond alteration.15
But, at this point, according to the Diceyan argument, it also ceased to have force as the governing instrument of the Union and was replaced by the Acts of Union.
How did ratification replace the treaty as the governing instrument of the Union?
After ratification, the Scottish Parliament, at least, ceased to exist. According to Dicey, this meant that one parliament remained, the English Parliament, (with the addition of forty five Scottish MP’s and sixteen Scottish nobles). This left Westminster holding the Union in place, not by the force of the treaty it had ratified, but by its solitary, ratifying, English statute.
What, then, did the Acts ratify? What came into force at ratification? Can the Acts that unambiguously refer to the treaty and to ratification be said to ratify themselves? Even if it were true that only Scotland’s parliament was dissolved, and the English Parliament remained, how could any international treaty be upheld, imposing the conditions and obligations agreed by the signatories, through the statutory competence of one signatory?
This is not only unheard of in treaty law, it is an obvious absurdity.
What difference does the it make whether the Union is governed by a Treaty or by the English Act of Union?
The difference lies in the degree of freedom that Westminster does or does not have to alter the conditions of the Treaty at will.
The Parliament of the United Kingdom is not known for its observance of international
15. (Walker, 2007)
treaties, nonetheless it has ratified the Vienna Convention on the Law of Treaties (1969) and thus has a commitment to recognise the particular and binding nature of Treaty Law:
From the perspective of international jurisprudence, the foundational prescription is pacta sunt servanda; treaties are to be respected and international obligations must be obeyed… Treaties and other forms of international law, therefore, occupy the apex of the legal pyramid and all domestic authorities of any particular country—whether denominated as rules of its national constitution, ordinary legislation, or in any other manner—are subsidiary. A country may not, under this system, interpose domestic law as a justification for its failure to meet treaty requirements. If it could, there would not be much point in concluding such agreements.16
How convenient it would be for signatories to an international treaty to be able to argue that their ratifying legislation had replaced the Treaty itself and that, as statutory legislation falls under their own competence to alter, they are free to alter the conditions of the original treaty. But if this were lawful, it would negate the whole purpose and foundation of treaties in the first place. This is exactly Dicey’s argument, however, and despite the subversion of every principle of treaty law which it implies, it appears to be almost universally accepted.
In the specific context of the Treaty of Union, in which the standing and self-determination of an entire nation was soon to be determined by its numerically superior ‘partner’, the absurdity of the arguent becomes even clearer.
We are asked to imagine that the negotiations for the Treaty of Union concluded with the clear understanding of the Scots contingent that, after ratification, the hard fought terms would be imposed and protected, not by the treaty itself, but by the acts passed by the two parliaments. Then we have to imagine it was also clearly understood that, as the Scottish parliament would cease to exist, all authority to alter or ignore the terms of the Treaty would pass to the new joint parliament in Westminster. And ever after, its terms and conditions must be defended from alteration if necessary, by the overwhelmingly outnumbered Scottish MP’s. (The Scots were allowed just one more MP than Cornwall.)
If it is unimaginable to the modern mind that such an application of the treaty agreement was contemplated by the commissioners, or the Scottish Parliament of 1707, it would surely be beyond belief to those who crafted or signed the treaty.
Within the context of treaty law in general and the context of the Treaty governing the Union specifically, the notion that Dicey’s first proposition is either sound, lawful practice or was ever imagined by the Commissioners for the Treaty or by the Scots Parliament is, without exaggeration, grotesque.
Conclusion: The first Diceyan proposition fails
- (Koplow, 2013)
Argument: Of the two Parliaments which created it, one (the Scottish) ceased to exist at the Union and the other (the English) remained
Notwithstanding its being located in the same building and resembling the old English Parliament in every physical characteristic, (apart from the number of new MP’s and Peers), the new Parliament of Great Britain was not the continuation of the English Parliament with the addition of some Scots.
The Treaty of Union extinguished both former Parliaments, created a new legal entity and, in principle at least, preserved the traditions of each even-handedly. And, like the question of whether the Union was created by Treaty or by Act of Parliament, the room for debate is negligible.
(Article XXII) And that if her Majesty, on or before the 1st day of May next, on which day the Union is to take place shall Declare under the Great Seal of England, That it is expedient, that the Lords of Parliament of England, and Commons of the present Parliament of England should be the Members of the respective Houses of the first Parliament of Great Britain for and on the part of England, then the said Lords of Parliament of England, and Commons of the present Parliament of England, shall be the members of the respective Houses of the first Parliament of Great Britain, for and on the part of England:
….. And the Lords of Parliament of England, and the 16 Peers of Scotland, such 16 Peers being Summoned and Returned in the manner agreed by this Treaty; and the Members of the House of Commons of the said Parliament of England and the 45 Members for Scotland, such 45 Members being Elected and Returned in the manner agreed in this Treaty shall assemble and meet respectively in their respective houses of the Parliament of Great Britain, at such time and place as shall be so appointed by Her Majesty, and shall be the Two houses of the first Parliament of Great Britain, And that Parliament may Continue for such time only as the present Parliament of England might have Continued, if the Union of the Two Kingdoms had not been made, unless sooner Dissolved by Her Majesty;
Conclusion: As the present Parliament of England might have Continued? Thus the second Diceyan principle fails. If the Scottish Parliament extinguished itself, it is equally the case that the English Parliament did the same. Since neither original Parliament survived, which means that the English Parliament did not simply continue with the addition of a few Scots, there is no more reason to assume that the new parliament in Westminster inherited English Parliamentary sovereignty than that it inherited the Scottish popular sovereignty.
The remaining propositions
When the new Parliament of Great Britain was convened, it subsumed into itself all the powers and privileges of the two former parliaments of England and Scotland.
The powers of the parliament of Scotland, however, were not equivalent to those of England.
The Scottish Parliament did not possess or aspire to the authority of the English parliament. (And nor did the monarch in Scotland.) There was another, independent seat of power in Scotland, the nation itself and that power could not be transferred to Westminster. But whether because the English view of the Scots was that their monarchs were despots or because it was inconceivable, in a state based on Norman feudalism, that monarch and parliament could be held accountable by their inferiors, the reality of popular sovereignty was entirely overlooked.
It does not appear to have occurred to any jurist or commentator, up to and including Dicey, that the source of authority in Scotland had not been transferred to London along with the Crown and the Parliament. From the English viewpoint, with the Scottish Privy Council abolished, what was left in Scotland but a subservient population?
What was left in reality was the real seat of government authority in Scotland, the people. And what remained was the right of that power of Scotland, the people, to exercise their sovereignty through their own assemblies, councils and conventions, including the assembly of all the communities, the Convention of the Estates. And since the nation of Scotland was never subsumed into the nation of England and the people of Scotland did not become members of the English nation, the power vested in the people has always remained vested in the people, never subsumed into the grasp of Westminster.
It is a pity that Scotland’s parliamentary records were consigned to oblivion for so long. It is a pity that mistaken assumption and prejudice have so long directed real insight into Scottish political and constitutional history. But errors do not become truths because they have been accepted and taught. And what did not fall under Westminster’s reach, because it had never fallen under the reach of either king or parliament, remains out of Westminster’s reach and beyond the reach of English parliamentary sovereignty today.
Unless, of course, the error is allowed to stand unchallenged and an authority that never belonged to Scotland’s parliament is allowed to pass to Westminster!
Conclusion: It is time for A. V. Dicey to be removed from the interpretation both of Scotland’s constitution and of her rights under the provisions of the Treaty of Union.
!e Claim of Right Act and ” L#t of G$evanc% 168917
- (Claim of Right Act 1689, n.d.)
The Declaration of the Estates of the Kingdom of Scotland containing the Claim of Right and the offer of the Croune to the King and Queen of England.
Wheras King James the Seventh Being a profest papist did assume the Regall power and acted as King without ever takeing the oath required by law wherby the King at his access to the government is obliged to swear To maintain the protestant religion and to rule the people according to the laudable lawes And Did By the advyce of wicked and evill Counsellers Invade the fundamentall Constitution of this Kingdome And altered it from a legall limited monarchy to ane Arbitrary Despotick power and in a publick proclamation asserted ane absolute power to cass annull and dissable all the lawes particularly arraigning the lawes Establishing the protestant religion By Dissarmeing protestants while at the same tyme he Imployed papists in the places of greatest trust civil and military such as Chancellor Secretaries Privie Counsellors and Lords of Sessione thrusting out protestants to make roome for papists and Intrusting the forts and magazins of the Kingdome in ther hands
By Imposeing oathes Contrair to law
By Giveing gifts and grants for exacting money without consent of Parliament of Conventione of Estates
By levying or Keeping on foot a standing army in tyme of Peace without Consent of Parliament which army did exact localitie free and dry quarters
By Imploying the officers of the army as Judges through the Kingdome and Imposeing them wher ther were heretable offices and jurisdictiones by whom many of the leidges were put to death summarly without legall tryall jury or record
By imposeing exorbitant fines to the value of the pairties Estates exacting extravagant Baile and disposeing fines and forefaultors befor any proces or Conviction
By Imprisoning persones without expressing the reasone and delaying to put them to tryall
By Causeing persue and forefault severall persones upon stretches of old and obsolete lawes upon frivolous and weak pretences upon lame and defective probationes as particularly the late Earle of Argyle to the scandal and reproach of the justice of the Natione
By Subverting the right of the Royal Burghs The third Estate of Parliament imposeing upon them not only magistrats But also the wholl toune Councill and Clerks contrary to their liberties and express chartours without the pretence either of sentence surrender or consent so that the Commissioners to Parliaments being chosen by the magistrats and
Councill The King might in effect alswell nominat that entire Estate of Parliament and many of the saids magistrats put in by him were avowed papists and the Burghes were forced to pay money for the letters Imposeing these illegall magistrats and Councils upon them
By Sending letters to the chiefe Courts of Justice not only ordaining the Judges to stop and desist sine die to determine causes But also ordering and Commanding them how to proceed in cases depending befor them Contrair to the express lawes and by chainging the nature of the Judges gifts ad vitam aut culpam and giveing them Commissions ad beneplacitum to dispose them to complyance with arbitrary Courses and turneing them out of their offices when they did not comply
By granting personall protectiones for civill Debts contrair to Law
All which are utterly and directly contrairy to the knoune lawes statutes and freedomes of this realme
Therfor the Estates of the kingdom of Scotland Find and Declaire That King James the Seventh being a profest papist Did assume the Regall power and acted as king without ever takeing the oath required by law and hath by the advyce of Evill and wicked Counsellors Invaded the fundamentall Constitution of the Kingdome and altered it from a legall limited monarchy To ane arbitrary despotick power and hath Exercised the same to the subversione of the protestant religion and the violation of the lawes and liberties of the Kingdome inverting all the Ends of Government wherby he hath forfaulted the right to the Croune and the throne is become vacant
And wheras His Royall Highness William then Prince of Orange now King of Ingland whom it hath pleased Almighty God to make the glorious instrument of delyvering these Kingdomes from Popery and arbitrary power did By the advyce of severall Lords and Gentlemen of this Nation at London for the tyme call the Estates of this Kingdome to meet the fourteenth of March last In order to such an Establishment as that their Religion lawes and liberties might not be again in danger of being subverted And the saids Estates being now assembled in a full and free representative of this Nation Takeing to their most serious Consideratione the best meanes for attaining the ends aforesaid Do In the first place as their ancestors in the like cases have usually done for the vindicating and asserting their antient rights and liberties Declare
That by the law of this Kingdome no papist can be King or Queen of this realme nor bear any office whatsomever therin nor can any protestant successor exercise the regall power untill he or she swear the Coronation Oath
That all Proclamationes asserting ane absolute power to Cass annull and Dissable lawes The Erecting Schools and Colledges for Jesuits The Inverting protestant Chappells and Churches to publick Mass houses and the allowing Mass to be said are Contrair to Law
That the allowing Popish bookes to be printed and Dispersed is Contrairy to law
That the takeing the children of Noblemen Gentlemen and others sending and Keeping them abroad to be bred papists
The makeing fonds and Dotations to popish schooles and Colledges The Bestowing pensiones on preists and the perverting protestants from ther religion by offers of places preferments and pensiones are Contrary to law
That the Dissarming of protestants and Imploying papists in the places of greatest trust both Civil and military the thrusting out protestants to make roome for papists and the intrusting papists with the forts and magazines of the Kingdome are Contrary to Law
That the Imposeing oathes without authority of Parliament is Contrair to law
That the giveing gifts or grants for raiseing of money without the Consent of Parliament or Convention of Estates is Contrary to law
That the Imploying the officers of the army as Judges through the Kingdome or imposeing them wher ther were heretable offices and Jurisdictiones and the putting the leidges to death summarly and without legall tryall jury or record are Contrary to Law
That the Imposeing of extraordinary fynes The exacting of exorbitant Baile and the disposeing of fynes and forefaultors befor sentence are Contrary to law
That the Imprisoning persones without expressing the reason therof and delaying to put them to tryall is contrary to law
That the causeing persue and forefault persones upon stretches of old and obsolete lawes upon frivolous and weak pretences upon lame and defective probation as particularly the late Earle of Argylle are Contrary to law
That the nominating and Imposeing the magistrats councils and clerks upon burghes contrary to ther liberties and express Chartors is Contrary to law
That the 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 befor them and the changeing the nature of the Judges gifts ad vitam aut culpam Into Commissions durante beneplacito are Contrary to law
That the granting personall protectiones for civil Debts is contrary to law
That the forceing the leidges to Depone against themselves in capitall Crymes however the punishment be restricted is Contrary to law
That the useing torture without evidence or in ordinary Crymes is Contrary to law
That the Sending of ane army in ane hostile manner upon any pairt of the Kingdome in a peaceable tyme and Exacting of Locality and any manner of free quarters is Contrary to law
That the chargeing of the leidges with lawborrowes at the Kings instance and the imposeing of bonds without the authority of Parliament and the suspending advocats from their Imployment for not Compearing when such bonds were offered were Contrary to Law
That the putting of Garisones on privat mens houses in tyme of peace without their Consent or the authority of Parliament is Contrary to law
That the opinions of the Lords of Sessione in the two Cases following were Contrary to Law videlicet (1.) That the concealing the Demand of a Supply for a forefaulted persone altho not given is treason (2.) That persones refuseing to discover what are their privat thoughts and judgements in relation to points of treason or others mens actions are guilty of treason That the fyneing husbands for ther wives withdrawing from the church was Contrary to law
That Prelacy and the superiority of any office in the Church above presbyters is and hath been a great and insupportable greivance and trouble to this Nation and contrary to the Inclinationes of the generality of the people ever since the reformatione (they haveing reformed from popery by presbyters) and therfor ought to be abolished
That it is the right and priviledge of the subjects to protest for remeed of law to the King and Parliament against Sentences pronounced by the lords of Sessione Provydeing the samen Do not stop Execution of these sentences
That it is the right of the subjects to petition the King and that all Imprisonments and prosecutiones for such petitioning are Contrary to law
That for redress of all greivances and for the amending strenthneing and preserveing of the lawes Parliaments ought to be frequently called and allowed to sit and the freedom of speech and debate secured to the members
And they Doe Claim Demand and insist upon all and sundry the premisses as ther undoubted right and liberties And that no Declarationes Doeings or proceedings to the prejudice of the people in any of the said premisses ought in any wayes to be drawne hereafter in Consequence or Example But that all forefaultors fynes loss of offices Imprisonments Banishments pursuits persecutiones tortures and rigorous Executiones be Considered and the pairties læsed be redressed
To which Demand of ther rights and redressing of their greivances they are particularly Encouraged by his Majesty the King of England his Declaration for the Kingdome of Scotland of the day of October last as being the only means for obtaining a full redress and remedy therin
Haveing therfor ane entire confidence that his said Majesty the King of England will perfect the Delyverance so far advanced by him and will still preserve them from violation of their Rights which they have here asserted and from all other attempts upon their Religion lawes and liberties
The said Estates of the Kingdome of Scotland Doe resolve that William and Mary King and Queen of England France and Ireland Be and be Declared King and Queen of Scotland To hold the
Crowne and Royall Dignity of the said Kingdome of Scotland To them the said King and Queen dureing ther lives and the longest liver of them and that the sole and full exercise of the regall power be only in and Exercised by him the said King in the names of the said King and Queen Dureing ther joynt lives And after ther decease The said Croune and Royall Dignity of the said Kingdome to be to the heirs of the body of the said Queen which failing to the Princess Ann of Denmark and the airs of her body which also failing to the aires of the Body of the said William King of England
And they do Pray the said King and Queen of England to accept the same accordingly And that the Oath hereafter mentioned by taken by all protestants of whom the oath of allegiance and any other oathes and Declarationes might be required by law instead of them And that the said oath of Allegiance and other oaths and Declarationes may be abrogated
The communities of Scotland, (represented by election, by hereditary or traditional right), through the Convention of the Estates, declare the existence and force of a fundamental constitution in Scotland which legally limits the monarchy (government), prohibits the abuse of power or the violation of the laws and liberties (rights) of the people and imposes the penalty of forfeiture for breach of these conditions of power.
The Convention asserts that James VII did:
Overthrow the fundamental constitution of this kingdom and altered it from a legally limited government to an unaccountable, absolute power and in a public proclamation asserted the right to repeal and disable all laws and (p2) he exercised this power in violation of the laws and civil rights of the kingdom, reversing the whole purpose of government. By these acts, he forfeited the right to the Crown (to rule)
Principles of the Claim of Right which remain applicable today include the following:
- The historic right of the people of Scotland to assert their sovereignty and their rights: ‘The said communities (of Scotland) assembled in a full and free representation of this nation do … as their ancestors in like cases have usually done for the vindicating and asserting of their rights and liberties…’
- The right of the people of Scotland to declare various acts of government unlawful including but not limited to:
- any claim by government to an absolute power, or sovereignty, in Scotland
- giving gifts or grants for the raising of money without parliamentary (or Convention)
oversight (such as lucrative contracts to party donors) * imprisonment without charge or trial
- granting personal protection (exemption) from civil debts (such as taxes)
- interfering with/directing the legal process in order to attack political opponents * preventing protest or petition or criminalizing protestors or petitioners
- The prescribed penalty for, “the violation of the lawes and liberties of the Kingdome inverting all the Ends of Government”, that is forfeiture of power, or the right to govern.
Arora, 2017. Political Science. Tata McGraw-Hill Education, pp.6.4.
Dafoe, D., 1786. The History Of The Union Between England and Scotland, With A
Collection Of Original Papers Relating Thereto. London: John Stockdale. P.34
Dennett, A., 2019. 5. Parliamentary sovereignty, Public Law Directions. [online] Law Trove. Available at: [Accessed 4 March 2022].
Dicey, A., 1889. Introduction to the Study of the Law of the Constitution. 3rd ed. London: MacMillan and Co, pp.39/40.
Dicey, A. and Rait, R., 1920. Thoughts on the Union Between England Scotland. London: Macmillan 1920 (Reprinted Greenwood Press 1971).
Koplow, D., 2013. Indisputable Violations: What Happens When the United States Unambiguously Breaches a Treaty. [online] Scholarship.law.georgetown.edu. Available at: [Accessed 4 March 2022].
Legislation.gov.uk. 1706. Union with Scotland Act 1706. [online] Available at: [Accessed 4 March 2022].
Legislation.gov.uk. n.d. Claim of Right Act 1689. [online] Available at: [Accessed 4 March 2022].
Parliament UK. 2010. The EU Bill and Parliamentary sovereignty – European Scrutiny Committe, Written Evidence from Professor Adam Tomkins, John Millar Professor of Public Law, University of Glasgow. [online] Available at: [Accessed 4 March 2022].
Supremecourt.uk. 2016. Miller & Anor, R (On the Application Of) v The Secretary of State for Exiting the European Union (Rev 1)  EWHC 2768 (Admin) (03 November 2016). [online] Available at: [Accessed 3 January 2022].
Walker, D., 2007. The Union and the law | Law Society of Scotland. [online] Law Society of Scotland. Available at: [Accessed 4 March 2021].