DECOLONISING THE CLAIM OF RIGHT. A RESPONSE FROM SARA SALYERS.

Decolonising the Claim of Right 

A Response Sara Salyers

I am grateful to this author for the thoughtful, intelligent and careful argument he sets out. It is important to test any theory, political or legal, particularly when it is your own position, so I welcome the opportunity to do so.

The errors in the argument – and there are serious errors – stem not from a want of knowledge or sound reasoning but from unexamined assumptions and interpretations, assumptions so generally held that they are practically received doctrine. But erroneous they are and erroneous they will remain, no matter how widely accepted. Unpicking an argument is a much more lengthy process than setting one out, so this response is inevitably both longer than I would like and limited in scope – or it would be even longer!

The standing of the Claim of Right as a constitutional document is not in doubt.That there *is* such a thing as Scottish constitutional law and that it diverges from English constitutional law is also undisputed. Whatever Lord Cooper’s opinion, (and he was what Professor Sir Neil McCormick called ‘a DaFoeist’ as opposed to a Diceyist), I draw your attention to the last three words of his famous obiter: “the principle of unlimited sovereignty of Parliament is a distinctively English principle and has no counterpart in Scottish constitutional law” (MacCormick v Lord Advocate 1953 SC 396) 

There is no constitutional law without a constitution. So where is it? And when, precisely, has the largely uncodified constitution of Scotland been interrogated in the way that the English constitution has been? Where, other than in the Claim of Right, are its terms expressly articulated? And what is the source of what McCormick called, ‘the Scottish constitutional anomaly’?

The Claim of Right Act 1689 not only asserts the existence of a fundamental constitution – upon which the rule of law stands and by which it is upheld and enforced – but some of the legal provisions it cites are distinctly Scottish. Thus it supplies in part, what a codified constitution would provide and, in part, a kind of Rosetta stone for the Scottish constitutional record. 

A constitution is, of course, similar to but not identical with the rule of law. And a statute setting out the terms of a constitution as the basis for its effect is also something more specific than a statement of the rule of law. Particularly when the parameters of the ‘rule of law’ itself are so very uncertain in the English/UK context:

“A ‘health warning’ is in order for anyone venturing into this area: a cursory glance at the index of legal periodicals revealed 16,810 citations to books and articles concerned with the rule of law, and that is certainly an underestimation… There is considerable diversity of opinion as to the meaning of the rule of law and the consequences that do and should follow from breach of the concept,” (Professor Paul Craig, House of Lords Select Committee, Constitution Sixth Report, Appendix 5).

The oft heard assertion that the Claim of Right merely upholds the rule of law, (the principle of the legal limitation of even the highest authority in the nation), is a fudge in the context of an unlimited (sovereign) parliament wherein no meaningful mechanism for the enforcement of such limitation actually exists. (As many commentators have bemoaned and as we see all too clearly today.) And the fudge is simply a means by which to iron out ‘the Scottish constitutional anomaly’ with sophistry. 

The Claim of Right establishes not the rule of law, but the Scottish constitutional compact, which is to say that it neither sets out to establish, nor does it establish, the rule of law. (A very large body of statutes and provisions exists to do that.) Rather, it establishes the *relationship* between the rule of law in Scotland and the precise and enforceable limits which that relationship imposes on a government, (crown in parliament). It is unique among the constitutional statutes of the UK in explicitly and unambiguously doing so.  

It is not required to say, “And finally, if the wheels come off the foregoing arrangements, then we’ll all get together in a big meeting.” Any more than the Bill of Rights is required to say “And from now on the powers formerly vested in the monarch belong to the parliament.” Because what it explicitly does say is that, by violating the rule of law, (it also states which laws),  James VII has forfeited the throne. It imposes a specific and final penalty. 

This is something the English parliament dared not do and thus it used the less than honest device of pretending that James had abdicated. Perhaps I should add that the assertion in the English Bill of Rights that James had breached the limits of sovereignty imposed by parliament, (and, indeed, that sovereignty already resided in the parliament), would have astonished Henry VII who introduced the European doctrine of the divine right of kings, Henry VIII who ruled as an absolute monarch and Elizabeth who did much the same as well as the Stuart kings who fell head over heels for the idea on arrival in England. 

The power of the monarch did not require to be limited or altered by the Claim of Right Act, as it did in England by the Bill of Rights. Rather the Claim of Right enforced the existing limits, setting the rule of law within its Scottishconstitutional context and giving it considerably more force and meaning in terms of accountability for government abuses and violations than now exists in the UK. (It continued to do so after 1689, preventing William of Orange from limiting the power to petition over the Darien scheme in 1699.)

For proper context, we should be aware that, at times, James VII used both parliament and the Court of Session to “cass annull and dissable all the lawes”.But it was his intervention in the appointments to parliament from the burghs which was his real overreach, overruling the existing democratic process in the hope of using his own appointees to obtain parliamentary approval for his Catholic emancipation plans: 

“In addition to participating in parliaments, royal and ecclesiastical burghs sent commissioners to regular meetings of the convention of royal burghs, which decided on matters of shared economic and fiscal concern, and prepared the towns’ collective response to parliamentary proposals.” (Raffe, Alasdair, ‘James and the Royal Burghs’ Scotland in Revolution, 1685-1690 Edinburgh, 2018)

James’ attempt failed, in fact, even before 1689. But here you see a very different disposition of power from that in England. (Imagine, today, parliamentary proposals requiring a response from ‘the towns’?)

The interrelationships between the people, the burgh ‘councils’, burgh convention (or assembly) and parliament and between the Convention of the Estates and these bodies enabled the interchange of draft legislation, opinion and amendment in a way that simply did not and exist in England and does not exist in the UK today. And this brings me to the central problem underpinning the argument. 

The author applies an English prism to a uniquely Scottish constitutional arrangement. This is a longstanding and almost universal error stemming from an internalised, colonising mentality and one that persists so that, where autochthonous interpretation is now extended to the constitutions of former colonies, no such courtesy is extended to Scotland. 

The Convention of the Estates was ‘parliament-lite’ because it was usually called by the king? (Usually but not always.) But why, when it was often more heavily populated than the parliament and at least as difficult to control, (as the record of the parliaments of Scotland demonstrate), did the king choose to call a Convention when he could just as easily summon a parliament? Particularly when many of the same people attended the Convention as did the parliament? 

The fact that a ‘parliament lite’, (the only available interpretation through an English prism), cannot satisfactorily explain why and how it existed, except as a kind of vestigial organ, like an appendix, continuing after its original function is lost, ought to be a red flag. It ought at least to raise the question, “Have I applied a foreign concept to a Scottish arrangement and come up with a deeply unsatisfactory and complicated characterisation as a result? Is there an Occam’s razor explanation that is far simpler and more elegant?” 

As it happens, there *is* an Occam’s razor explanation. The Convention fulfilled a uniquely Scottish function. That function has never been examined in the light of its origins nor of the persistence into the 17th century of the influence of an indigenous legal and political tradition that had roots neither in Anglo-Norman feudalism nor Roman canon law. The ‘loan of power’ by the people to the government, monarch, monarch in parliament or chief is a widely recognised, early Scottish principle. (An early form of ‘devolution’ that was the reverse of the present, top down arrangement!) It was not a European idea imported by Bruce in 1320, though he used contemporary language to ‘update’ it, nor by Buchanan in the 1500s. And those whose power is loaned might well require some sort of insurance mechanism, in lieu of a medieval ‘Scotland Act’. 

The most immediate effect of governmental power for the ordinary person on an ordinary day is the imposition of taxes. Thus no tax could be raised without the consent of the Convention of the Estates. Enough said. Nor could gifts from the treasury be made without its consent. It was the Convention that decided and negotiated the side taken by Scotland in the civil war and the treaty with the parliamentarians. It was the Convention (then General Council) that stepped in during the minorities of four Scottish monarchs. And, of course, it was the Convention that stepped in when no legitimate parliament could be called and acted on behalf of the nation in 1689. 

So what was the real standing of the Convention of the Estates? What real power did it have compared to that of the parliament? How was it understood? In terms of its authoritative scope, perhaps the best exponent is the jurist who detested it claims and whose writing continues to provide the underpinning theory of Westminster constitutionalism, A. V. Dicey. He complained that the powers asserted by the Claim of Right Act are:

“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 1689” (Dicey, A. and Rait, R., ‘Thoughts on the Union Between England Scotland’, London: Macmillan 1920

He was right in so far as no Scottish Parliament ever claimed such powers for itself. Through the Claim of Right Act, however, and on behalf of the nation of Scotland (which is to be understood through the documents and provisions of the uncodified Scottish constitution), the Convention of the Estates does.  (It is also worth observing that, for the Imperialist jurist A. V. Dicey, one of the most obnoxious powers both claimed and exercised by the Convention of the Estates must surely have been that of declaring two rulings of the Court of Session unlawful. An interesting precedent?)

“If the wheels come off, we’ll all get together in a big meeting, which let’s at least agree now we’ll call a convention of estates”? That had *long* been understood and had been put into effect many times before the 1689 Convention of the Estates. And that is the point. What was once well understood in Scotland was and is alien to the English disposition of power. (But we shall yet beunderstood in the light of our own constitutional arrangements, development and historical record. Not those of a foreign power!)

There was, in Scotland, a much more complex disposition of power than that which in England was largely defined by the conflict between the sovereignty of the parliament and the monarch. And it is the very character of that widely dispersed authority and influence, monarch, privy council, Lords of the Articles,  Parliament, Convention, Burgh Assembly burgh councils and more, which encapsulates the sovereignty of the people. The sovereignty that is claimed for the nation is claimed for *all* the people, high and low as defined in another constitutional document,  the Declaration of the Clergy of 1310, once again in the Declaration of Arbroath and then by the Claim of Right Act 1689.

Finally, I have a confession. Much as I have enjoyed writing this, because it isalways a pleasure to set the record straight and a duty to break the hold of dogma, none of this is necessary.

Whatever its status prior to the assembly at which the Claim of Right was passed, what matters is the status the Act assigns to the Convention that passed it – that of “a free and fair representative of the nation”. (The nation as defined in previous constitutional *Scottish* documents.) 

What matters is not whether the Convention had the powers it claimed, powers so profound that the claim scandalised Dicey, but that its self-proclaimed authority was upheld in 1689 when its members replaced the parliament of James VII (deposed with the crown), and in 1703 when it was enacted by that parliament:

“that it shall be high treason for any person to disown, quarrel or impugn the dignity and authority of the said parliament… “

And

“that it shall be high treason in any of the subjects of this kingdom to quarrel, impugn or endeavour by writing, malicious and advised speaking, or other open act or deed, to alter or innovate the Claim of Right or any article thereof.”

What matters is that, as a constitutional document, protected in Scotland under penalty of high treason, made a condition of the Treaty and ratified with the Acts of Union as a condition of Union, recognised post Union by the parliament at Westminster, the Claim of Right confers upon the authorising body, the Convention of the Estates the status *it assigns to itself* with the force of constitutional law. Exactly as the Bill of Rights constitutes the principle ofsovereignty in the English parliament. The Claim of Right states that the Convention of the Estates is a free and fair representative of the nation, (as defined in previous constitutional *Scottish* documents) and, therefore, such is its status. The Convention, not the parliament. Not the crown in parliament. 

Most of all, what matters is that this is a constitutional argument about the basis for fundamental constitutional change. And constitutional change is, as we know, effected as much, possibly much more, by political will and action than by legal action. 

What *will* matter is whether the majority of Scots choose to interpret their rights and their sovereignty in the terms which I, and many others before me, have asserted and to exercise their democratic right to act accordingly. If they do, it will matter very little whether any legal opinion or court ruling says otherwise. Because ultimately, whatever existing legal interpretation might say to the contrary, history tells us that when it is not vested in the weapons of war, power is always vested in the people.

As for the practice of Salvo and whether it demonstrated the sovereignty of the people over their government, I will leave the last word to the late naval captain, lawyer and orator as well as assiduous researcher of Scots law and history, Willie MacRae. Along with a promise that I will find, as he clearly did, the records of this practice, not in the statutes but as offered in the way that he describes:

“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.”

MY COMMENTS

I am grateful to both Neil and Sara. They have demonstrated that it is perfectly possible to debate these matters in a polite and professional manner, neither Party calling the other names but seeking to promote their positions with respect to the other Party. How rare is that in politics these days.? I am sure this is just the start of a really good debate on these topics.This is precisely what I hoped for this blog. We all learn more when we are aware of our opponents arguments as well as our own and accepting the challenge of defending our pro Indy positions in advance is a very worthwhile exercise for the challenges ahead. I know Mia will also want to respond so that is something to look forward to in the near future.

I am, as always

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70 thoughts on “DECOLONISING THE CLAIM OF RIGHT. A RESPONSE FROM SARA SALYERS.

  1. Debate politely? Aye, but that’s almost impossible when any argument put up by Scots for ownership of their own land and destiny is immediately challenged by our well-tutored oppressors! They are compelled to do it. Loss of Scotland to the English Treasury would be a disaster. However, the briefer the rebuttal, the more succinct it is, the greater the impact on the general public who need convincing their rights increase when nationhood is restored..

    Liked by 27 people

  2. My two pence worth, the Claim of Right is still extant, the fact that England was/is the biggest “partner” doesn’t mean that their law supersedes Scots law (which btw is protected forever in the Treaty and Acts of Union), if Westminster uses as it has recently the English (and Welsh) legal concepts contained in the Bill of Rights and indeed the Henry 8th laws and applies English law across the UK, they are in (potential?) breach of the Treaty of Union.

    In layman’s terms – Might isn’t right, being bigger doesn’t give you the legal/constitutional right to squash smaller and their constitution isn’t better and/or superior to ours.

    Liked by 21 people

  3. Two very brilliantly presented positions.

    It makes the upcoming Supreme Court hearing all the more intriguing. Given Scotland’s Parliament failed to give our forbears their opportunity to consider the Union of Crowns and our Nation then surely there has to be an argument that the Union is not beholden on the People of Scotland.

    That the Acts of Westminster have regularly breached the Union Terms & Conditions and have acted to impung etc the people of Scotland.

    Even the interference in the 2014 Referendum by English Politicians across the English registered parties including breaching purdah should have nulified the published outcome.

    We have a square go on our hands thats for sure. Can’t wait to see how this plays out.

    Thank you to Neill King for sharing his opinion, it was a good read & Sara for her rebuttal.

    Liked by 22 people

  4. Thank you Sara, I’ve read your article and it confirms my opinion that, in Scotland, the people are indeed, sovereign.
    Colonists will endeavour to impose their own law, or their interpretation of the colonised country’s law, on those they seek to dominate. That has definitely been the case in Scotland. In my opinion, the reason that domination has been so successful here is largely due to ignorance. I’m using the dictionary definition of ignorance – ‘lack of knowledge’, unawareness. It is now up to those of us who do have some knowledge of Scotland’s constitution, Claim of Right and the Salvo act to spread the word amongst our fellow Scots, new or otherwise.
    I often imagine what an independent Scotland might look like, politically and its effect on our daily lives. Imagine a second house in the Scottish parliament, where members are not appointed in return for favours etc., but selected on a temporary basis in the same way that a jury is selected, randomly across society. Imagine if that body of people could oversee what the government is doing and ratify or not, depending on the proposal’s effect on the people of Scotland. Imagine what that might mean in today’s economic crisis. I’m imagining and it fills me with hope for a better future for al of us.

    Liked by 24 people

  5. I will restrict my comments, to avoid detracting from the debate, but this one extract from Sara’s comments is crucial to regaining Sotland’s independence.

    “What *will* matter is whether the majority of Scots choose to interpret their rights and their sovereignty in the terms which I, and many others before me, have asserted and to exercise their democratic right to act accordingly. If they do, it will matter very little whether any legal opinion or court ruling says otherwise. Because ultimately, whatever existing legal interpretation might say to the contrary, history tells us that when it is not vested in the weapons of war, power is always vested in the people.”

    During 2020, and covid lockdown I did my own research, and then in early 2021 prepared a document ” The Declaration of an individual Sovereign Scot – its purpose – to regain the independence of Scotland.” If in any way interested the link below will provide the details.

    My one and only further comment:

    “When we learn from Scotland’s past, and then act as one in Scotland’s present, it is we who are alive today that will secure Scotland’s future.”

    https://www.facebook.com/X2-113742180011217

    Liked by 23 people

  6. So, the Parliament of Scotland was the permanent, standing body but it wasn’t the supreme, sovereign body. There is no doubt to this, the Parliament acknowledged this specifically on occasion and as routine through the Act of Salvo. Sovereignty resided with the people who could assume superiority over Parliament by convening the Convention of the Estates.
    In this sense Parliament is perhaps akin to a permanent civil service. The people who couldn’t be absent from their home and place of work entrusted the Parliament to take care of day-to-day business (entrusted up to a point). This is not dissimilar to the Roman, Tribune system.
    Why this unexpected (from an Anglocentric) “humility” on the part of Parliament?
    Because Parliament was the inheritor of the Crown.
    Because the authority of the Scottish Kings was not analogous to William the Conqueror and his decedents.
    Royal dominion of the Norman Kings was absolute (up to the Magna Carta which was a contract amongst mafia godfathers to divide the loot amongst themselves a wee bit more fairly). William 1st authority originated from the fealty of Barrons bought by the gift of land and indentured peasants.
    The authority of Scottish Kings was far more tenuous. They were the head of the family that happened to occupy the top slot at a particular time in an ever changing “game of thrones”. Geography and topography being as it was Royal dominion didn’t carry far.
    This “humility” wasn’t volunteered, their tabard was always on a shoogly peg.
    The real “democratic miracle” here is that the “humility” shown by the Monarch to their rivals from the “great families” was transferred to the Burghs (not necessarily voluntarily), and that the Burghs were themselves democratic (in the medieval sense).

    Liked by 11 people

    1. “So, the Parliament of Scotland was the permanent, standing body but it wasn’t the supreme, sovereign body. There is no doubt to this”

      That would be no and no, actually.

      Click to access historical_introduction.pdf

      page 31

      “James VI attended his first parliament in 1578, and appears to have been present at all eleven parliaments and sixty-odd conventions of estates before his removal to London in 1603. The reasons for the continuing high frequency of parliament and conventions after 1585 lay in the political instability, religious controversy and political factionalism that endured at least until 1596 along with the king’s constant financial problems.”

      Does that sound like a Convention being higher than a Parliament?

      Feel free to read the rest of the document, BTW.

      Like

  7. Hello Sara – isn’t it nice to have the luxury being able to set out our arguments with a bit more space than is allowed by tweets!

    I’ll respond to your piece in more detail soon but meanwhile can I ask you a question? If popular sovereignty as manifested historically by Conventions of Estates still exists in Scotland today, what would a Convention of Estates in 2022 look like? How is it summoned, by whom and who is entitled to attend? Or is it the Scottish MPs in the WM Parliament? Or is it the Scottish Parliament? Or something else?

    Liked by 9 people

    1. I can’t answer this entirely – it’s a work in progress – but I can offer up some assurances.

      The convention of the estates… or ‘re-convention’ if you prefer, is going to have women (the old fashioned type, ones with wombs) in it, not just men.

      In that respect it will differ from the last lot.

      Oh, and for sure it will have people on it from different and differing religions.

      Incidentally, your phrase, ‘“If the wheels come off, we’ll all get together in a big meeting”. Your damned right we will, that’s what people do, when their country finds itself in a time of crisis. The job description if you like.

      And if, in times of crisis, such as martial occupation, they need to meet dressed up as daffodils and call themselves the daffodil appreciation society in order to avoid persecution and get the meeting done – then I expect them to do that also.

      Liked by 16 people

    2. In theory it could be summoned by the the Assembly of the Kirk of Scotland! But in practice it will have to be reinstated as a constitutional provision, which rather than a standing body is what it really was, and that will require clarification of the standing of the constitution itself. Such clarification will not come from within a state that has declared the nature of the union voluntary (by Treaty) but the status of the agreement (treaty) replaced by and subject to the the single act of ratification by England’s parliament and thus effectively governed by one signatory only. That’s colonial status! Next is the creation of the civil movement from which the structure of a convention can be formed. Not everything will be or can predictable but essential principles already exist. We are not playing the same old game.

      Liked by 8 people

    3. I think the value of respectful yet uncompromising debate can’t be overemphasised. Social media has created a culture of weaponised ‘conversation’ from which only the entrenchment of a position and an increasing polarity – and hostility- of opposing viewpoints can be the result. I very much hope that we can play a small part of the return of a venerable Scottish tradition, respect for the opponent and for the process of interrogating the facts, issues and values at contest, however vehemently one is opposed!

      The restoration of the CoE requires to be approached as though it were the creation of a new political and constitutional entity. The structures and mechanisms which embedded the Conventions of Estates and Burghs so deeply and extensively in the Scottish political and social order no longer exist. The constitutional principles they embodied and upheld, however, are breathtakingly inspiring, in my view. But they do not, of themselves, magically restore the living socio-political order from which they emerged and in which they were a living and lived expression of the constitution of Scotland.

      That said, to know and understand them is the prerequisite to creating the consonant bodies and processes by which they can be revived. That is the challenge we face and which we are confident we can meet. There was no labour movement, no trade union movement and thus there were no social justice statutes and provisions until those movements arose and brought with them the political, social and judicial change that was needed. The restoration of a uniquely Scottish, constitutional disposition is a task of the same kind and magnitude. That it can and will happen, and can happen much more quickly than you might think, I have no doubt.

      Liked by 4 people

  8. A few months ago, I asked a close relative (a highly experienced and academically minded Scots lawyer) for his views on the Claim of Right / Salvo documentation produced by the Salvo group.

    He undertook to study the documents, with the caveat that Scots Constitutional law had not and still does not form part of the training of a Scots lawyer (!!) .

    Being a ‘how many angels can you get on a pinhead’, analyst of legal minutiae, and someone who spends his meagre leisure time in legal debates, he embraced the challenge with gusto.

    When we met to discuss his findings, his conclusions were similar to Sara’s. His questions were: what would the composition of the Convention of the Estates look like today? What would the criteria be for membership and who would decide? What mechanism would be used to determine membership? He held that from a legal perspective only the Convention could exercise the Claim of Right.

    I thought it worth posting this comment because although the gentleman who offered an opposing view to Sara’s is a lawyer, he represents his own perspective not necessarily a definitive legal view. As I am sure he concurs. However, lay readers might feel that his view carries more weight than it actually does.

    Joan Hutcheson/ Savage

    Liked by 21 people

    1. “from a legal perspective only the Convention could exercise the Claim of Right” – individual people could also invoke the CoR. For example, suppose someone was illegally imprisoned by the government, the could invoke it to be liberated.

      “As I am sure he concurs” – he does

      Liked by 7 people

  9. Sara

    You continue to claim that the Convention was some kind of special superior body, when the people at St Andrews say this:

    “An unusual feature of the meetings of the estates, especially in the sixteenth century, was the convention of estates that could be summoned by the king without the long period of forty days’ notice required for a full parliament and usually only to agree taxations. However, these assemblies met less frequently in the early seventeenth century as they became more formal and largely addressed the issue of taxation. From 1643 conventions were called by general summons rather than selectively and so more closely resembled a full parliament in membership if not in the range of matters considered. However, although the restored monarchy did resort to the use of conventions on three occasions, that in 1678 was the last to be held, the 1689 convention of the estates being unusual and quickly transformed into a parliament. The disappearance of these ‘para-parliaments’, where the very absence of a committee of the articles suggests they were generally more amenable to crown control, represented a recognition of parliament’s pre-eminence in all matters relating to the estates, and in particular in the granting of taxation.”

    Click to access historical_introduction.pdf

    pages 17-18

    Now the authors are recognised, professional, peer-reviewed historians. Why do you differ from them?

    We also have the point that the 1689 Convention was called together irregularly, by circular letters from not-yet-King William of Orange.

    In its own proceedings it passed an Act turning itself into a Parliament.

    For obvious reasons that was seen as a dodgy procedure, so another Act doing the same was passed in 1703.

    Why do that, unless a full Parliament is a higher body than a mere Convention?

    Like

    1. In reply to your last question first, the attempts by William to circumvent the limits imposed by the Claim of Right were an embarrassing failure. His parliamentary faction then began arguing that, as the Convention had been given the status of a parliament – in order to transform the members into the new parliament – that same parliament could amend the Claim of Right Act. When the majority responded that they did not have that authority as a parliament and the CoR had been passed by a non parliamentary body with a different basis of authority, the Court faction argued that it was, in fact, a lesser statute in law and could be altered by the higher authority of parliament. The 1703 act put a full stop on the argument and amounts to a declaration that gives any additional standing needed to the Convention and puts the statutory standing of the Act it passed above all other statutes as one that may not be challenged under penalty of high treason.

      As for your other objections, I have read all that you cite and much more. I can only say that interpretation usually follows accepted doctrine. I follow records and documents, increasingly available, which describe a disposition of power that has been either ignored or unpublished until recently. In short, you don’t usually find what you aren’t looking for.

      Liked by 15 people

      1. Is the discussion about the status of the Claim recorded at RPS? Can you point me to which meetings?

        You seem to be advancing a viewpoint which is not generally accepted by current scholarship, so some references would be welcome. (BTW something like “look at document X on Salvo website” would be fine.)

        I do think there is an issue concerning the extraordinary and irregular status of the 1689 Convention versus that of the many “normal” Conventions which preceded it. Of course it’s not unique there, England had Convention Parliaments in 1660 and 1688 which similarly irregular.

        While I’m here, I stumbled across a source for the summoning of the 1689 Convention:

        https://www.rps.ac.uk/search.php?action=fetch_index_frame&fn=william_and_mary_trans&id=48481&type=trans

        “Acts and orders of the meeting of the estates of the kingdom of Scotland held and begun at Edinburgh, 14 March 1689 called by circular letters from his highness the prince of Orange under his hand and seal to the lords of the clergy and nobility, and to the sheriff clerks for the several shires and to the town clerks for the royal burghs. ”

        Who wants to tell Mia that actually it didn’t “summon itself”?

        Like

    2. I like to read, before earning a good wage, I frequented the library several times a week.
      Once I obtained a well paying job, I started purchasing books on order and reading them at home. I no longer need to attend the library, and did not have the time to do so.
      It did not mean I had stopped reading.
      It did not mean I no longer wanted the Library to stop functioning or being in existance.
      I continued to pay for the Library through my local taxes. It was not a business that went bust due to my lack of use.

      The above analogy appears very similar to what you and St Andrews argue, a kind long winded, round about ‘use it or lose it’ argument.

      With something so fundamentally important, unless you can point to and label the exact legal Laws, Enactments and Amendments that disbanded the Convention of the Estates, then I’m going to suggest its a nice try, but no cigar.

      And incidentally some considerable effort has gone into making the documents Salvo has recovered that form Scotland’s written constitution, describe a vital piece of our history and our Claim of Right, ‘disappear’.

      Equal and Opposite to this effort, if there exists a document that amended, altered or disbarred the Claim of Right and all its baggage – you can be damned sure it would have been drummed into every child in Scottish Schools and English from P1 to the day they left.

      Liked by 11 people

  10. Slightly off-topic and likely ill-informed, but it needs asking…

    Could a political party or coalition of parties write a constitution and fight an election based on it’s immediate implementation?

    Similarly could, given the precedent of the Convention of the Estates, a group of civic institutions write a constitution and campaign for it’s immediate implementation?

    The reason for asking this is the the debate so far, while being interesting, feels rather abstract and arguing over minutiae, as Joan Hutcheson put it, like asking how many angels can fit on the head of a pin.

    In other words, asking lawyers, who purely a product of the legal and constitutional framework that created this “mess” in the first place, to resolve this issue is unlikely to be successful. No, (well, perhaps not much) disrespect intended, but it’s rather like a group of goldfish arguing about what exists outside the bowl.

    Liked by 6 people

  11. Here is a problem with Scottish law training throughout the years – this is taken from David Walker’s compulsory reading text for many years for undergrads. It does not conflict with the above article, but does highlight the mindset of many in the legal profession in Scotland, and ultimately an unpleasant social truth: “The ultimate legal source of all Scots law, that which confers the authority on all principles and rules to make them determinative of rights and decisive of controversies, is the power of the state, that is, of the legally organised community of the United Kingdom.” Walker goes on to give this a veneer of civility but there is no doubt what underlies this thinking (and it is thinking that is in keeping with a positivist theory of law) – power, meaning the power to enFORCE your views (that includes the generally understood meaning of force).

    Liked by 4 people

    1. “Here is a problem with Scottish law”

      There is clearly a very serious lack of constitutional law expertise in Scotland – as noted above the subject is hardly even taught in Scotland. Understanding of our constitutional rights among our own institutions is so poor that even the Scottish Parliament has to take its case to a foreign court.

      In a colonial environment, of course, a nation is ‘out of the game’ internationally (Albert Memmi). When was the last time a Scottish lawyer drafted a treaty on behalf of a sovereign Scotland? Scotland’s lawyers have been ‘out of the game’ since 1707.

      The result is what we see, intellectuals and groups such as Salvo and SSRG having to investigate and establish Scottish constitutional rights, whilst Scots lawyers scramble around searching for an excuse.

      Liked by 15 people

  12. @WEBF on the RPS website the first meeting of the Estates of Queen Anne’s parliament is referenced at 1702/6/31 I believe either onn the 9th or 10th June if my money serves me . That’s the first quote that Sara references

    Liked by 5 people

  13. Neil King’s original article says, “So to suggest that this ad hoc meeting in extraordinary circumstances was a regular feature of the Scottish constitution is not correct –unless you imagine that constitution to have had a clause at the end of it (and I’m joking here because pre-union Scotland didn’t have a written constitution either) saying something like “And finally, if the wheels come off the foregoing arrangements, then we’ll all get together in a big meeting, which let’s at least agree now we’ll call a convention of estates, and hopefully sort something out.”

    But if we look at that written explanation of the Scottish Constitution, the Declaration of Arbroath, we see “ But if he should cease from these beginnings, wishing to give us or our kingdom to the English or the king of the English, we would immediately take steps to drive him out as the enemy and the subverter of his own rights and ours, and install another King who would make good our defence. “

    The “We” is all the people of Scotland and I think this is the clause he is looking for.

    Liked by 11 people

    1. “But if we look at that written explanation of the Scottish Constitution, the Declaration of Arbroath”

      …which was a letter to the Pope, signed by a few dozen noblemen, and was not referenced in public again for about 370 years.

      The only rational interpretation of “we” and “our” is “nobles”. They were just saying the monarchy was partially elective, which was very common at the time.

      Like

      1. The other ‘rational’ explanation of ‘we’ and ‘our’ is the ‘populus et plebs’ of the Declaration of the Clergy 1310, which, while not a legal document, nevertheless extols the appreciation of the clergy for the good sense of the populus et plebs for acclaiming and affirming Robert the Bruce as thieir king.

        Liked by 5 people

      2. “They were just saying the monarchy was partially elective, which was very common at the time.”
        I am not at all sure that it was, WEBF.

        I can think of only one other example in Europe and that’s Ireland
        Under ancient Irish Brehon law
        “Ri (kings or rulers) were of several grades from that of the Tuatha (Chieftain) to the Ard Ri (High King) of Ireland. In earlier times, the Ri may be of either gender and was elected into the position. If the Ri proved unworthy, for whatever reason, he or she could be voted out of office and another elected in their stead. Also, a temporary leader could be selected by the people for a specific purpose such as warfare”.
        https://stairnaheireann.net/2022/08/05/brehon-law-clans-and-social-classes-6/

        Futhermore “The ancient Irish Brehon Law guided tribal Celtic populations of Ireland and parts of Scotland for perhaps 1000 years, conveyed in an oral tradition of poem and story and later in written manuscript until the final English subjugation of Ireland (Éire) in the Seventeenth Century.”

        https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3570217#:~:text=Abstract,%C3%89ire)%20in%20the%20Seventeenth%20Century.

        Liked by 6 people

      3. Ahh those few dozen noblemen again. Scotland being, like England, entirely run on Norman feudal lines where the nobles represented themselves and their own interests and the poor old plebs traveled behind. What an extraordinary prism this is and has been for so long that it’s just the specs people forget they’re wearing. I suggest you look at a map of the Gaeltacht not just in 1300 but in 1688 too. You see, the bits of and scraps of history and historical Scottish society that we identify with as familiar are just that. Bits and scraps. Look again ‘historian’, and understand what the pledge of an elected ‘ri’ or chieftain meant when his kindred (clansmen) stood behind it and *exactly* whose law Bruce and those ‘nobles’ were invoking against the land-ruler law of a foreign nation. Older, different, Celtic. It’s been staring you in the face all this time. I hope you can take off the prismatic specs and see it.

        Liked by 12 people

  14. Careful Sara don’t let fishing expeditions wear you down keep the powder dry. Demands will be made of you to continually clarify, avoid at all costs, its the game they play.

    Liked by 13 people

    1. I would agree to not get worn out by constant demands to explain the minutiae. If you’re confident you’ve unearthed the nugget of gold we’ve been looking for, I say forget the naysayers and focus on how this gets us out of this hellish union! Everyone who loves Scotland needs to get the blinkers on, focus and pull together.

      Liked by 13 people

    2. That will not happen. This exchange is probably a one off. I have written extensively of not falling for the BT tactic of producing nothing and just nitpicking our work. It must not happen again.

      Liked by 12 people

      1. I’ll answer my own question by saying that the Salvo/SSRG’s gambit for getting us out of this hellish union is (if I’ve understood correctly – correct me if I haven’t) to convene a Convention of Estates to overrule the WM Parliament in prohibiting Scotland from staging an indyref and then, in the event of a Yes result, to repeal the Acts of Union and in effect declare Scotland indy. Then, someone with standing will go to the Court of Session for a declarator that Scotland is now indy through a legal and constitutional route which the EU and foreign countries cannot quibble. Is that right? If so, you can expect quite a lot of “nitpicking” on all that from Lord Carloway and his judicial brethren on the bench so it might be as well to be prepared in advance from the experience of a few trial runs.

        Like

  15. I forgot to thank Sara for her well-researched and thoroughly informative paper. I’m envious. She’s beaten me by two months to discussing the Claim and done it magnificently. There’s a chapter in ESSAYS 3, the last in the trilogy, published in November. We come to similar conclusions if by different words though I have to admit to help from ‘me learned counsel’.

    Liked by 11 people

  16. “The author applies an English prism to a uniquely Scottish constitutional arrangement. This is a longstanding and almost universal error stemming from an internalised, colonising mentality and one that persists so that, where autochthonous interpretation is now extended to the constitutions of former colonies, no such courtesy is extended to Scotland.”

    Wherein, a national bourgeoisie habitually holds with the interpretation(s) of the metropolitan centre, we can safely speak of a mature and successful colonisation. One of the many good reasons why the case for Scottish national liberation/decolonisation must be taken and deliberated upon beyond these shores.

    Highly informative work, Sara, and yes, elegant too.

    Liked by 10 people

  17. I must admit to having always felt slightly queasy about Westminster’s acceptance of the Claim of Right. If they had felt that it was a genuine threat, they would never have ratified it. It is also why they will do anything and everything to avoid having to scrutinise the Treaty itself unless it is in the context of renegotiating it as domestic law – i.e. as an Act, but different from the two ratifying Acts which translated the Treaty into domestic law. Indeed, if it was ever to be renegotiated as a domestic legal Act of the British parliament, with a Scottish version tacked on to the English legislation, of course, the two Acts of Union would become redundant. That Claim of Right had to be accepted by England and the monarch before the Treaty could be ratified by the Scots, so we must take it that the Scottish jurists and parliamentarians (and Commissioners) were of one mind that it constituted (and continues to constitute) a very important part of the Scottish ‘constitutional’ underpinning of the Treaty.

    England had ruled that James II and VII had abdicated the throne through his own unconstitutional actions, but Scotland could not follow that ruling because James had not been in Scotland, so the Convention used the Claim of Right instead, and James was literally taken down from the throne because of his actions, in keeping with the ‘kings of Scots, not king of Scotland’ convention, which even Bruce recognised. Implicit in that convention is the right of the people to remove a monarch who is not behaving as he/she should in accordance with Scottish constitutional principles and the rule of law. The monarch cannot be above the law in either jurisdiction or a return to divine rule is implied. Since parliament has absorbed most of the powers of monarchy, it now stands as the successor to the monarchs and any monarch today would be well-advised not to try and usurp powers the institution has ceded to parliament.

    From a Scottish viewpoint, and given that both Scotland and the British parliament has ratified the CoR, it must be implied, logically, that the CoR means, in Scotland and for Scots, that it, and a new Convention of the Estates, have the right in law (the CoR having been ratified by the British parliament and now part of the rule of law) to withdraw from parliament if that parliament is showing that it is willing to overreach its powers in Scotland (and in Scots Law) and against the Scots people by, for example enacting legislation which is opposed to the democratic will of the Scots – by making it illegal to try and effect independence or even just to change the ways in which the Scottish parliament can operate in the name of the people. Instead of removing the monarch, they can now remove parliament itself in the sense that they can withdraw from its jurisdiction if it acts in an oppressive and illegitimate manner.

    However, at the end of the day, the Treaty was passed into law by both parliaments ratifying it through the Acts of Union. The Claim of Right, I do not feel, can override the Treaty or make the Treaty subordinate, and eventually, it must be resiled in international law, stripping it down to unravel our resources and assets from theirs. Try as I might, I just cannot see any way out of it except by bringing a case to the international arena because no court in the UK has the competence or jurisdiction to deal with it. Our case must be based on breaching of the Treaty right up to the present day, and we have to build a case refuting the totally flawed English interpretation of the Treaty which would claim that Scotland was subsumed into a Greater England and that the English parliament continued. We have an excellent case, I think, and I also think that Westminster knows that, too. Let’s not take any chances and press our case based on every Scottish constitutional tool at our disposal. In the meantime, we have to either hold a referendum or a plebiscitary election (which need not have only one policy, but which will require every independence-supporting party to put independence at the top of its agenda with a promise to enact independence immediately (UDI) in the event of a democratic win overall (of seats, not votes). Then let England as the UK challenge in the international arena if it chooses.

    Liked by 10 people

    1. “enact independence immediately (UDI) in the event of a democratic win overall (of seats, not votes). Then let England as the UK challenge in the international arena if it chooses.” – fine but that’s a revolutionary, not a constitutional way of doing things. I thought the whole point of the Salvo/SSRG movement was that it had uncovered a *constitutional* method of Scotland becoming indy without an Act of the UK parliament (namely, that the CoR declares popular sovereignty in Scotland and that that PS is preserved by the CoR having been written in to the Acts of Union). And of course, the preference for doing things in a constitutional manner is that it would be far preferable in the context of EU and international recognition.

      Liked by 1 person

      1. That is a personal view by a contributor not the Salvo position. I don’t believe I have yet advertised the strategy we are following! Yes, it involves recalling the Convention but not in the way you imagine. There is the small matter of first clearing up the standing of what amounts to the U.K. state’s definition of Scotland as a voluntary (union governed by international treaty) colony (no real treaty, governed by an act of the English parliament).

        Liked by 11 people

      2. Sorry if I impinged on SALVO strategy, Sara. That was not my intention. My point was an extension of the ‘plebiscitary election’ theory promulgated by the SNP (now), ALBA, etc. or a demand from the people of Scotland as represented by the (modern) reconvening of the Convention of the Estates and popular sovereignty. I think it will be impossible to escape the Union via an Act of the British parliament because it will never enact such legislation unless it is forced to do so under duress from the international community after our constitutional tools are put to the test, and in the international arena. I may well be wrong. What I never intended was to mislead when I said that I felt queasy about Westminster’s acceptance of the Claim of Right. I believe it is real, but I believe they must think that it isn’t or that it can be knocked down fairly easily or it cannot so what we believe it can do. It is why I keep on saying: we must start to think about how England as the UK will react to anything we do. I am quite sure they will have got all this worked out and will try to scupper us as they tried in 2013/14 with the Crawford and Boyle Report. They will fight. Of that we may be sure. We may also be sure that it will not be a clean fight, especially if we try to keep it a domestic affair.

        Liked by 7 people

      3. Neil, sorry but how is that revolutionary when a legal case would be brought based on the breaching of the Treaty by one party to it? How can it be revolutionary to win seats through the very long-established principles of British democratic elections, by one independence grouping? It is simply another form of very loose coalition of interests, which, I know is illegal if formalised. After all, the Unionist parties do this all the time by trading votes to win in constituencies where one party has a much better chance than another. Have they ever been charged with revolution or with undermining the election? Or does a different law apply to independence groupings?

        SALVO/SSRG, etc. are, indeed, looking for a constitutional way through the morass, and without an Act of the British parliament. No one is suggesting otherwise. If each and all independence parties (or if the SNP gives a cast-iron guarantee that it will enact independence immediately on harvesting the votes of all independence voters, and winning the election, of course) win seats and have, combined, enough seats, then they have every right to enact their policies as laid out in their agendas. That would be independence, and a formal declaration would then be made. That it is a form of UDI, but not an illegal form, is self-evident because it would be Scotland unilaterally declaring itself independent.

        Did the Tories require an Act of the British parliament to implement the framework or any other measure that has come after Brexit? No. It is accepted convention in British politics that a party that wins a seat may ally with others of similar mind and form a grouping that allows them to pass legislation that may then be implemented as law. The constitutional tools would, then, be utilised as back-up in the international arena to ensure smooth recognition. I believe that is what the constitutional groups are doing: building a case based on recognised and ratified Scottish constitutional tools. The Treaty would require to be deconstructed and negotiated as to resources and assets, debts and liabilities, etc. accruing to Scotland through it – which would be bilateral.

        If England as the UK (or rUK, including Wales and NI) wished to have successor or continuator status, that would require to be negotiated and Scotland allowed to leave without any debt, but Scotland’s negotiators would be mindful of the best deal for Scotland, which might be two successor states as was the case in 1707. I see no revolutionary thought or action there, Neil. By the way, as a lawyer, you should know that the Acts cannot resile the Treaty, as the Treaty is the father /mother of the child/ren (the Acts) in law. The Treaty will come into play as and when the UK falls apart, as, even if rUK succeeds to continuator state status, that must be negotiated via the Treaty in international law, not domestic law. Domestic law has absolutely no competence or jurisdiction over the Treaty.

        By your analysis, anything at all that Scotland does would be ‘revolutionary’, would be illegal, would be unworkable, but international law does not recognise that kind of ‘binding’ constraint. Human rights alone would be breached by insisting that we stay in a Union we find suffocating and intolerable. As I said, Unionists must be realistic and stop making up things to try and prevent a perfectly legitimate, democratic and legal withdrawal from the Union – particularly when England as the UK has breached the Treaty terms on a regular basis and has made a mockery of the so-called Union. You live in Portugal, and are probably living well, but many people in Scotland are on the bottom rung of the ladder, left without hope. Please, have the compassion to rethink your Unionism, even if you only rethink it along the lines of: this no longer has anything to do with me and I must let others choose who actually live in Scotland.

        I understand that you have an intellectual argument against independence, but it has been demolished roundly, I think, and most of us on these threads are no longer willing to acquiesce in what we know to be smoke and mirrors. Just think, Neil, had we ever been treated like equal partners in the Union, had we ever been genuinely consulted and our objections taken seriously, this parting of the ways would likely not have come about. It takes two to tango, but in this Union, only one has ever taken to the dance floor. The rest of us are mere spectators.

        Liked by 10 people

      4. “By your analysis, anything at all that Scotland does would be ‘revolutionary’, would be illegal, would be unworkable” etc etc

        As Albert Memmi said, the main task of the colonizer is to make any prospect of independence seem impossible.

        Liked by 10 people

    2. No apology at all was necessary! I was merely separating out the official Salvo policy from your excellent propositions because Neil responded as though what you were saying were what Salvo is saying. I’ve seen so many illogical arguments about how ‘the SNP’ says this or the ‘Alba people’ say that when what is under discussion is the viewpoint of individuals and I think it important to keep those distinctions clear. There is much in what you say that is echoed in the Salvo membership and quite rightly. But we have not yet announced our official tactical approach! 🙂 (we do have one), only our ultimate intention to reclaim our constitutional provisions under the Claim of Right and, of course, see it through to the penalty! (Sack the violators!)

      Liked by 7 people

    3. The question of whether we have an international Treaty must be settled. If not, this is not a voluntary Union and Scotland is eligible for UN listing for decolonisation. If so, the question of whether we have a pre-condition to the Treaty that was understood and expected to guarantee the continuation of the Scottish constitutional disposition of power and the “limits go government and obedience” (deFoe) must be settled. It is one or the other.

      Liked by 8 people

      1. On cannot argue the Treaty was entered into on a voluntary basis when 97% of the population had no vote, and those in the city rioted against the signing. In 1707 only 8% of the populace lived in towns, making a mass national gathering at our parliament an impossibility. This is the foundation on which any appeal to the United Nations can be made, that we are a long-exploited and colonised country struggling for progress, an argument made with great confidence.

        Liked by 7 people

  18. That you cannot interpret Scots Law and practices through an English constitutional lens is a fine and correct argument. It would be like a Biologist like me going to the Physicists and ignoring lots tell them that life violates the Laws of Thermodynamics. It doesn’t of course because those laws only apply to closed systems. Life exists on the Earth because it receives considerable energy input from our local large nuclear fusion source. So the biosphere of Earth is not a closed system.

    Entropy gets all of us. Life is a brief dance in the sunlight temporarily cocking a snook at Entropy (especially by the young) us older types feel the effects so are naturally less blithe. Though the dance is still a fine one.

    Liked by 6 people

  19. Don’t let them wear you down Sara, wise council.

    “History tells us …power is always vested in the people”.

    “We are the state and we say no – we are the people, and we say Yes”. ( Credit to Aileen Innes from previous post).

    And now we need the economic case to be explained in simple detail as the Brexit consequences start to bite – to the many who walked by our Indy stalls over the past ten years , and would not be interested in the discussion here.

    Scotland produces surplus to her consumption needs, be it electric power, oil and gas, food – why do foodbanks exist in Scotland? Where (Ms Sturgeon) is our promised national energy company that can control our energy costs to an affordable level?

    Liked by 11 people

  20. An excellent piece of writing Sara 👏👏👏

    No matter how the coloniser manipulates the “Law” in his favour or in fact any Government passing unfair or unpopular Laws the people can overturn them.
    History has many, many examples of States using the Law, Law enforcement or the Military. Which takes us back again to the Act of Union. Are we in a Union or not?

    A Court Ruling in favour of Westminster will make it crystal clear that we are a colony. I don’t mind going to the UN with that finding.

    Liked by 5 people

  21. Sara – I believe that in pre-1707 Scotland, there wasn’t unlimited parliamentary sovereignty and that parliament was limited by the “fundamentall constitution of this kingdome” the CoR speaks of. That’s probably what Lord Cooper meant although he didn’t spell it out. That being so, the significance of the CoR was that it articulated that the king was not above the constitution and he was bound by it the same as everyone else. Dare I hope we’re agreed on that?

    Moving on from there, where we begin to disagree is on the details of that pre-1707 constitution, specifically on the roles therein of conventions of estates. Would you agree that it’s possible to distinguish two broad types of CoE? First there’s what one might call “regular” CoEs – ones summoned by the king in normal times, not at moments of constitutional crisis. These are the ones I called “parliament-lite”. The second broad type of CoE is what one might call “revolutionary” CoEs – ones typically not summoned by the king, at times of constitutional crisis such as 1689 or the 1630s/40s when Charles I had lost control of Scotland, possibly during the Marian civil wars etc. etc. I characterise these CoEs as a series of ad hoc gatherings in revolutionary settings (which by their nature are unconstitutional) given the posh name of what they look pretty similar to. You, on the other hand, I think see this second category of CoE as having happened often enough to the point where one can say that they are a regular feature, a part of the pre-1707 Scottish constitution as a mechanism to defuse constitutional tension. Is that fair? If so, I don’t happen to see it that way, but I’m certainly not going to die in a ditch with you over it.

    Where I think we really part company dramatically is on the question of whether this feature of the pre-1707 constitution, the “revolutionary” CoE, survived past 1707, still there to be reawakened to defuse the current crisis over indy.

    Can I suggest to you that the weakest point in your position is that there hasn’t been a “revolutionary” CoE since 1707 (or indeed 1689) which may suggest that the practice has been lost through desuetude? (I know you know what that means but for any who don’t, it’s the principle of Scottish law that an Act or law has ceased to be effective through disuse even though never specifically repealed.)

    Lots of other points I could make but I think that’s more than enough to be getting on with for now!

    Like

      1. “What Lord Cooper meant but didn’t spell it out”. This is actually a VERY useful legal technique, not yet taught in law schools, called ‘making it up as you go along’. Only the very highest qualified lawyers get away with it.

        Personally, I wouldn’t recommend it, ‘So your honour, when you said ‘guilty’ … I’m sure we all understood, what you really meant, but didn’t spell out, was, ‘Not Guilty, now off you go and have a lovely life’….

        Liked by 4 people

    1. We are in broad agreement – but where we differ is crucial. The simple explanation for the various ‘types’ of the CoE is not that there were various types at all! It is that it’s role was a constant and it depended on circumstances. In times of ordinary and unexceptional circumstances it merely protected the I terms of the population in terms of taxation and input to normal parliamentary business. (It responded to parliamentary proposals just as the Burgh Assembly did and like that Assembly frequently drafted legislation for parliament to consider.) In extraordinary circumstances it stepped in exercising what is clearly the highest authority in the constitutional record. It is necessary only to identify a unifying role, one that is consistent with all the functions it perform as well as it’s quite extraordinary powers, to arrive at an u set standing as much clearer and more elegant with respect to the Scottish constitutional arrangement as Galileo’s model of the solar system was clearer and more elegant than Ptolemy’s!

      Having understood that and coupled it with the fact that it was not a sitting body, like the three estates but called as needed mostly by the monarch but also by various other bodies at different times to recognise it as both an assembly and a constitutional provision.

      In present circumstances, (where the constitutional provisions of Scotland have been entirely overridden by an English dominated state, and that unlawfully if this *is* the voluntary/treaty based union the U.K. claims), then the restoration of a kind of representative ombudsman, a modern CoE, is merely one of many provisions that would have to be restored for that ‘voluntary union’ claim to hold good. (In a voluntary union the pre-conditions by the signatory nations *must* hold good. Unilateral removal of protections and provisions is an act of invasion as the Claim of Right expresses it.)

      Thus we are looking not at anachronistic laws which have passed into desuetude but fundamental constitutional differences that have have been dismissed and denied by a bigger, more powerful and self-interested section of this ‘union’.

      Desuetude and wrongful denial of laws and provisions are entirely different in character. The analogy is that of theft where the fact that I stole your car and have been driving it without your knowledge for the past ten years does not make it, now, my car. This principle is being upheld in courts across the world with respect to indigenous peoples and treaties more recent than that made between two nations in 1707!

      No matter how much time has passed, the ratification of the Claim of Right as a condition of the Treaty (a priori) requires the observation of its force in Scotland and the continuation of the Union will require its restoration to remain valid. Of course the catch 22 is that it’s restoration implies the rehearsal of those constitutional violations, by the equivalent of the CoE, that require the declaration of an abusive power that it has forfeited legitimacy under Scottish constitutional law. But a vote on entering a new Union would then certainly e required. The people are, after all sovereign!

      It matters not that a superior power regarded the condition of 1707 as a minor irritant to be swiftly consigned to oblivion. We live in a world of international agreement and treaty where the principle of pacta servanda sunt is essential for the harmonious working of the international community. The bubble of British imperial privilege and self-policing is burst and Scotland is one of the last bastions of its unaccountable, self authorising, judicial contempt for its binding agreements. (The EU of course has a few things to say about this!)

      But pacta servanda sunt remains the international principle in law and Scotland is as much entitled to have it upheld as any other treaty signatory. In these circumstances, it is a matter of declaring the treaty void or of addressing and restoring all those constitutional provisions which were supposed to be guaranteed under the Claim of Right. That means not only the constitutional mechanisms of public oversight that existed for so long, but the prescribed penalties for breach of the rule of law as well as the common good provisions which Westminster has assiduously sought and failed to remove, including: the Common Good fund presently divorced from its constitutional purpose and the misuse of the ‘common’ resources of Scotland, held by the U.K. as trustee for the Scottish people. The latter because of the fundamental difference between Scotland and England whereby the monarch did not own it (crown holdings excepted) and allow subordinates to ‘hold’ it.

      So, Scotland decolonises in one of two ways. It demands and gets the constitutional provisions (that no lawyer in Scotland is presently trained to recognise and interpret so there’s a challenge!) under the terms of a voluntary union or it gets UN colony status and listing as a nation due for decolonisation.

      Step one is the equivalent of pointing out to the people of Scotland that the British state is driving around in their car. The one they’ve been looking for for so long. In other words, it is excavating, interrogating and making public the buried and forgotten constitution of this nation. And this educational, public awareness campaign is the real game changer. Because it redefined the entire landscape of the independence debate. It located it in the terrain of Scotland rather than within the self-‘regulating’ power base of the British establishment.

      Liked by 4 people

  22. Neil now generously wants us to believe that there were actually two types of Convention of Estates, and maybe he will throw in another Claim of Right too, as long as we all agree that none of them matter.

    I suppose it was inevitable that we would end up talking about the CoR falling into desuetude, just as the Indian textile industry fell into desuetude after the country was flooded with British imports. Well, until Gandhi came along…

    Sara’s response was breathtakingly clinical, comprehensive, and impressive. More than that, her command of the subject is truly inspirational.

    I haven’t felt this excited about Scottish stuff since Gemmil scored in 1978.

    Neil, my friend, you’re going to need a bigger boat…

    Liked by 8 people

  23. Just brilliant Sara . I agree with Hatuey above …” Sara’s response was breathtakingly clinical, comprehensive, and impressive. More than that, her command of the subject is truly inspirational. ” . Quite so H .

    I would only add that the BTL commentary is of an equally outstanding calibre .

    Liked by 6 people

  24. Like others I am reading Sara’s main article, all the comments, and Mia’s latest – with very great interest!!! I said I would limit my comments, but I want to pick up on the various references to the United Nations, this is a recent post from the link I posted earlier. It explains the contacts already made with the UN, and there are additional international contacts also already established (See the link I posted earlier for more info.)

    “I will be bringing blank forms to the Yes2 Rally in Glasgow on Saturday for anyone who wants to sign their individual Declaration, but this post refers back to the AUOB rally at Faslane, and how the “Declaration of a Sovereign Scot” has a part to play over the question of nuclear weapons on Scotland’s roads and at Faslane. It may not be obvious, but the Declaration initiative is not only how to gain “international recognition” … but how to obtain “international participation” in regaining Scotland’s independence. How to get the world on our side?

    The United Nations are holding a major conference in New York to review The Treaty on the Non-Proliferation of Nuclear Weapons (NPT), the Secretary General of the UN, Antonio Guterres, opened the conference with these words … “humanity is just one misunderstanding, one miscalculation away from nuclear annihilation.”

    Since it was first written in April 2021, it has always been an integral part of the Declaration intitiative to address the nuclear weapons issue, and for those who do not know this, the final words in the Declaration are “ … in an international context to support the United Nation’s Treaty on the Prohibition of Nuclear Weapons, by the removal of all nuclear weapons from Scotland.”

    That is “one” of the reasons that the Declarations are being lodged at the UN HQ in New York, and I will be posting all the Declarations which were signed at the Faslane rally to the the Secretary General of the UN, Antonio Guterres, so that he is aware that there is an overwhelming desire from the majority of Scots for the complete removal of all such weapons from Scotland.

    Why might that prove important?

    It is the United Nations who assert that “all peoples have a right to self determination”. The United Nations are confirming that is OUR right.

    Gaining Scotland’s independence, by exercising OUR right to self determination would lead to the removal of nuclear weapons from Scotland.

    It will take time … but as each Declaration is signed and then lodged at the UN, it will be documentary evidence that Scotland’s independence, and the removal of nuclear weapons from Scotland is a matter which should not only gain “international recognition” – but “international participation”.

    An independent Scotland has a role, in many ways a major role, to play in making not just Scotland but the world a safer place … I hope you think that is important and I hope it will encourage more Sovereign Scots to sign their own individual Declaration.

    Liked by 4 people

  25. Heart-warming and inspirational in equal measure, with an eloquence clearly derived from substance and not mere sophistries. Light at the end of a three hundred year long tunnel of darkness. Sara, it really feels like you have discovered the constitutional key hidden in our past that will unlock the future and restore our nationhood.

    Liked by 3 people

  26. For me it comes down to the question: ‘is “sovereignty of the people” a meaningless phrase or not?’
    If it is then Scotland does not really exist, it is just that bit above the Lake District.
    If not then we have to re-create a vehicle separate from parliament (and crown) for it to be empowered.

    Liked by 3 people

    1. That has to be the goal! And the very discussion about how to do that changes the whole negotiation because it changes our own perception of what is really at stake, why, who has controlled the ‘rules of the game’ and how. And perception holds the key to real change.

      Liked by 4 people

  27. Lorncal – you asked me some questions above but there wasn’t a reply link under them so I’ll answer them here instead:-

    1. How, if a majority of Scots want it, is declaring UDI “revolutionary” as opposed to “legal/constitutional”? (is that a fair precis of your question?)

    I meant it would be “revolutionary” by the standards of the “received” view of the UK’s constitution which is that, considering it doesn’t have a clause providing for withdrawal of any part of it except NI (like the EU’s Article 50), Scotland can only become indy legally and constitutionally by an Act of the UK Parliament. (I get that the SSRG/Salvo doesn’t agree with that “received” view but there’s no point in denying that an awful lot of people do.)

    2. “when a legal case would be brought based on the breaching of the Treaty by one party to it”.

    My article was solely about the Claim of Right and popular sovereignty. The breaching the treaty thing is entirely different because it’s not (unless I’ve misunderstood) based on the CoR/popular sovereignty, it’s based on common or garden contract law assuming that transposes into international law. I’m not making any comment on this because I don’t know enough about international law to know whether you can apply all the principles of domestic private contract to it. What does occur to me though is, if popular sovereignty is a thing, why do you need this breaching the treaty argument? Scotland should be able to declare itself indy in virtue of its popular sovereignty *just because it wants to* – it shouldn’t have to give reasons like “because you breached our treaty”, no?

    3. “By your analysis, anything at all that Scotland does would be ‘revolutionary’, would be illegal, would be unworkable, but international law does not recognise that kind of ‘binding’ constraint.”

    I wouldn’t go so far as to say unworkable but I would say more complicated. As I already said, I don’t know very much about international law. I know there’s things about right to self-determination and decolonisation etc. but I think I’m right in saying these things were passed in the 50s or 60s with European colonies in Africa etc. in mind, not bits of European countries. It may be that they can indeed be applied to new contexts but, even in my limited understanding of international law, I believe this would be controversial to say the least. So why run this gauntlet if Salvo/SSRG have uncovered a legal and constitutional way of seceding which will gain international recognition uncontroversially?

    4. “I understand that you have an intellectual argument against independence, but it has been demolished roundly”

    My article wasn’t an “argument against independence”. I didn’t come into this forum to argue for or against the union or indy, I came to talk about the law. I don’t know if you saw my comment to this effect on another thread but when I wrote to Iain Lawson offering my article, I said to him “I didn’t write my piece as a unionist, or to grind an axe for the unionist cause. I wrote it as a lawyer to grind an axe for a proper understanding of law and history.” That being so, I was annoyed that he billed me as a “Champion of the Union” when that was never my intention and it’s just been a distraction from the arguments I was actually making.

    Like

    1. Neil: there is nothing in the Treaty or the UK constitution that states unequivocally that England as the UK, based on its greater population, is the dominant part, yet England as the UK acts as if it is the dominant part, and this can be proved very easily – for example, where is English devolution? If all other parts are devolved, except England, does that presuppose a dominance written nowhere, with no actual constitutional legality?

      I, also, have problems with the CoR, if only that Westminster would never have ratified something they were not certain, or somewhat certain, they could overturn. They cannot overturn the Treaty because it underpins the UK of GB, and any overturning ends the UK – which is why they have nibbled away at over 300 + years and tried their utmost to undermine it. It is still extant, however. My approach has always been that the Treaty is our strength, and any attempt to renegotiate it in domestic law is both utterly flawed and impossible without destroying the UK – but that would not put Westminster and Whitehall off, not a bit of it – the Crawford and Boyle Report is testament to that.

      International law has evolved to take into account new situations – Kosovo, for example. Our Treaty does not come under the Vienna Convention, but UN courts and tribunals exist to deal with old treaties, to adjudicate upon them and translate them into modern international law. We also have human rights now, which, again, pre empts onerous interpretations of agreements. Why run this gauntlet? Because you asked the question, Neil. So would Westminster and Whitehall – in the hope of catching us wrong-footed. ALL constitutional tools, all routes out of the Union require to be explored and implemented, if necessary. If the Treaty underpins the UK (and the Acts are merely the translations from international law into domestic law (secondary law), leaving the Treaty unaffected in its basics – secondary law law cannot take the place of primary legislation because it is, in its essence, a creature of that primary legislation. Why do you think that Westminster rides roughshod over devolved matters, in some instances?

      Perhaps you are not fighting from a Unionist perspective, but it does seem so. That bothers me less, because you have every right to do so, than that fact that you now live in Portugal, and most of this does not and never will affect you to any great extent. It is a mindset I find so alien that it genuinely leaves me horrified. It is akin to a well-heeled middle-class Tory saying to a family on benefits: I’m taking away your benefits because I refuse to acknowledge your right to have them.

      Sorry, Neil, not meaning to be personal, and I will accept your statement that you are not talking as a Unionist. You are, however, talking as someone whose whole argument is based on a total disregard for international law in all its forms, and, more tellingly, with almost complete disregard for the desire for independence that exists strongly within Scotland. That, surely, is the point. For over 300 years, Unionists have had all the running. It has been a disaster for many in Scotland. Now, we want something different, and, if we are blocked at every turn, it could all turn nasty, as it did in Ireland, as it did in many colonies. That is why we are all so preoccupied with finding a peaceful, constitutional solution, even if that means breaking laws that the British State is using to bind us.

      Liked by 3 people

  28. Sara – picking up a few points that have become scattered amongst various posts and comments and trying to gather them into one place at the bottom of the thread:-

    1. Would it be fair to summarise your response to my question about what a Convention of Estates in the 2020s would look like (who summons it, who attends etc.) as: “These details haven’t been worked out yet but you’ll recognise it when it happens.”?

    2. In your answer to that question, you referred to “the single act of ratification [of the ToU] by England’s parliament and thus effectively governed by one signatory only”. I think I’ve noticed you emphasising only one act of ratification elsewhere as well. What is your view on what happened to the Scottish act of ratification?

    3. I’m getting a better understanding of your view of pre-1707 CoEs now but I always think it helps to give concrete examples of things so can you give an example of a CoE over-ruling or restraining a parliament (not the king – a parliament) so we can maybe have a look at that in action in the pages of the RPS?

    4. On the desuetude point, I presume you’d agree that the famous clause in the CoR against “popish” books is in desuetude (yes?) but the right to convene a CoE is not because the former is an “anachronistic law” whereas the latter is a “fundamental constitutional difference” and/or has been “wrongfully denied”. Again in the interests of providing examples we can look at to see this in action, can you cite any cases (whether in the international or domestic arena) where, due to their fundamental nature, laws have been ruled to be still in force despite not having been applied for hundreds of years?

    5. Another very interesting example would be, can you identify any events since 1707 where the British state “wrongfully denied” an attempt to convene a CoE?

    6. On Acts salvo jure cujuslibet, I note your quote from Willie MacRae but how do you account for the fact that the wording of the Act salvo from 1663 I linked to in my article is specifically restricted to ‘particular acts’ and ratifications, not public and general acts? Is that 1663 one perhaps non-standard? Can you link to an Act salvo in the RPS which is not confined to particular acts and ratifications?

    Thank you.

    Liked by 1 person

  29. The Clayme o’ Richt gambit is doomed. Faced with the sheer magnitude of granting such a crave and the chaos to follow a court will take a political position and find a form of words to deny the motion. The higher the court the more political it will be. Context of the era, intention, meaning of words then and now, ease of assembly and communication in the modern world, alternate paths now available will all be invoked to prevent any old group of malcontents from dissolving parliament every five minutes to suit their latest whim. If you think this is a runner you’re not living in the modern geopolitical world.

    Like

    1. “… any old group of malcontents … ” – Robert Allison. Malcontents is a very emotive word to use, Robert. The members of SSRG/Salvo/Common Weal/ALBA, et al are not malcontents, but people whose patience is now at an end, like the rst of us on here. If this blocking of legitimate Scottish desires is continued, I think they will discover what genuinely being malcontented means. The CoR may or may not fall, but does that mean it is not worth trying? None of the routes and/or Scottish constitutional tools are guaranteed. Does that mean we should not try them? A malcontent is only such in the eyes of the beholder if that beholder will always see any challenge to his/her rule as being not worthy. It is an extremely elitist word.

      Liked by 2 people

  30. The impression could be formed from the debates around Claim of Right that it was straightforward that the people of Scotland asserted the law, stating in other words: “Haw! King Jimmy the Seventh, you’re sacked for being corrupt” and the King and his supporters just accepted that as the law. In England, the fiction is that in accordance with the rule of law James II abdicated leaving the English Parliament free to appoint a new monarch.

    Rightly or wrongly, the reality is that James VII did not recognise the sovereignty of the people of Scotland or the authority of the Convention of Estates to sack him via the Claim of Right. As James II of England he never abdicated from the throne of England: the Battle of the Boyne 1690 in Ireland and Jacobite uprisings in Scotland in 1689, 1715 and 1745 confirm this.

    The reality is revolutions took place in Scotland and England because many regarded James as a tyrant King and he was deposed by military conflict. That resulted in civil war that continued off and on for the next 60 years with Jacobite supporters trying to re-instate Jacobite rule by military insurrection.

    In 1919 Ireland declared independence from the UK; the UK did not recognise it and this also resulted in civil war.

    I must emphasise, I am NOT advocating civil war. I am highlighting that ultimately, popular support, or sovereignty of the people was often the deciding factor, not the law as it stood. A contributing factor for the failure of Jacobites to regain the UK crown was a lack of popular support in lowland Scotland and England. Ireland eventually gained independence because there was sufficient support for independence.

    It is a truism that those who have power rarely want to relinquish power. The UK tried to deny independence to many of its British Empire colonies but was forced to accept it could not reasonably hold onto them by force in the long term against the will of the majority.

    Following the rise of fascism and WWII there was the creation of the UN and its Charter in an attempt to limit or prevent further war/s. The UK has ratified the Charter and the UN Treaty called the International Covenant on Civil and Political Rights (ICCPR) both of which assert the right of self-determination. In its submission to the International Court of Justice the UK’s opinion supported the right of self-determination for the people of Kosovo.

    Like James VII, the UK State asserts rule over the people of Scotland founded on the assertion of the unlimited sovereignty of the Crown (Crown in Parliament); a position which would be unsustainable in law before any court that recognises in common law that democracy and the right of self-determination is now a fundamental part of the constitution of the UK that trumps arguments of medieval notions of sovereignty of kings. The more moderate Unionist argument is that the (limited) sovereignty of UK parliament and rule of law must be respected.

    UK Parliament does make the law and is the supreme legislative chamber in the UK but, laws made to deny or stymie democracy in Scotland (or any other country) are contrary to the UN Charter / ICCPR and I believe would be ruled contrary to Scots Law common law, if legally challenged and there was a fair trial, and would establish a limit to Parliamentary sovereignty: that UK Parliament just like the Crown, is subject to common law or “fundamental laws”.

    Whether pro-Union or pro-Scottish independence, the lessons from history is that all of us should respect the “right of self-determination” “the will of the people as expressed through the ballot box” or “democracy”. The alternative is oppression, anger, and eventually civil upheaval or civil war.

    So, all of us who are right-minded, on either side of the UK / indy-Scotland debate, should argue for the issue to be tested democratically at the ballot box. We all should abhor the suggestion that democracy should be limited or denied tp those whose views we do not agree with, as this is a regression from peaceful democracy back to “might is right”.

    The UK general election gave the Tories a mandate for a Brexit referendum: the Scottish Parliament election gave the Scot Govt a mandate for another indyref. The UK Govt had their Brexit referendum; the UK should co-operate to enable the Scot Govt to hold another indyref, as that would the democratic, sensible and lawful decision in accordance with the UN Charter, ICCPR, common law ( and the Claim of Right).

    Like

    1. May I offer my recent post from elsewhere on social media, it is one of a series, therefore is best perhaps viewed as an adjunct to the above post from Colin Alexander rather than a specific response:

      Might the “Declaration of a Sovereign Scot” initiative EVENTUALLY prove to be of greater importance in regaining Scotland’s independence than many currently realise?

      Let me use an article by Joanna Cherry QC in today’s National to suggest why, and why the Declaration initiative has chosen international law and not domestic law as the route to follow. Two extracts from the article:

      Extract #1: ” … self-determination is a central pillar of modern international law.”

      Extract #2: ” … international law does not “… prohibit secession or separation, or guarantee the unity of predecessor states against internal movements leading to separation or independence WITH THE SUPPORT OF THE PEOPLES CONCERNED”. (*)

      Why highlight those last words? Bccause since April last year that has been the primary reason for the Declaration initiative – to build the documentary evidence Scotland may need to present when its independence is subject to question under international law – not domestic law.

      Every Declaration when signed has and is being submitted to the United Nations which is where you will find the International Court of Justice (ICJ). It is within the ICJ that you will find the words used in Extract #2 – and of critical importance is that they were part of a legal submission to the ICJ from the United Kingdom! Please read what the UK said again, it is so so important! It is crucial documentary evidence from the UK – based on international law!

      But it is conditional – for it to be used to allow Scotland to regain its indpendence it must be “WITH THE SUPPORT OF THE PEOPLES CONCERNED”.

      The “Declaration of a Sovereign Scot” is, and always has been, an open invitation for you to show that very support, because EVENTUALLY it may be the vital documentary evidence Scotland needs as its independence is adjudged not by the Supreme Court and domestic law, but under international law.

      When you sign your Declaration, you are showing your support and building the evidence Scotland needs!

      Liked by 1 person

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