THE CHALLENGE HAS BEEN ACCEPTED
Last week I challenged opponents of Independence to set out their argument why the Claim of Right 1689 was not the game changer many in Scotland believe it is. I offered anyone the opportunity to have their article published setting out the reasons they held this view. I have done this before, but unlike previous attempts to tease out counter arguments, a retired lawyer Neil King has set out his argument below. Neil does not support Independence but tells me he wrote this article as a retired lawyer rather than just being a Unionist. His article is being published here without alteration. I think we can all learn and benefit from hearing alternative views and I am positive this article will generate quality debate which is exactly what this blog sets out to achieve. So thank you Neil for playing your part in this. Neil lives in Portugal but did practice law in Scotland before retirement. Later today Yours for Scotland will publish a reply to Neil from Sara Salyers of Salvo.
The Claim of Right 1689 and popular sovereignty
Sovereignty
The sovereignty of parliament (or parliamentary sovereignty for short) is the principle of the British constitution that the highest authority in the land is parliament (I mean the Westminster Parliament here).
The easiest way to explain that is to contrast the UK with most other countries where the highest authority is not the legislature but the country’s constitution. What that means is that an act of parliament can be challenged in the courtsand struck down if it violates the country’s constitution. Although it’s not a term of art used by constitutional lawyers, I’m going to call this constitutional sovereignty to distinguish it from parliamentary sovereignty. Perhaps the most famous example of it in action is the American case of Roe v Wade. Ms. Roe wanted an abortion but a Texan statute prevented that. She challenged the statute and the US Supreme Court eventually struck it down because it violated her constitutional right to personal liberty and privacy: the US Constitution trumps the Texan legislature. In Britain, there’s no equivalent of this. If the WestminsterParliament passed an Act banning abortion, it couldn’t be challenged in court. That’s because parliament is sovereign.
Turning to the Claim of Right 1689 (CoR) – and the first thing I’d urge anyone commenting on the CoR to do is read it! You can do that here – the claim is that it enactedthat, in Scotland, sovereignty lies not with parliament (or a constitution) but with the people. In contrast toparliamentary and constitutional sovereignty, this is called popular sovereignty. So, if parliament passes an Act which somebody doesn’t like, appeal may be had to the people at large. This – the argument continues – was different from the position in England before the Union where parliament was sovereign but the CoR was specifically preserved in the Acts of Union and continues in force in Scotland. If that is so, then, if the Supreme Court rules that the correct interpretation of the Scotland Act 1998 is that it prevents the Scottish Parliament from enacting a new indyref, then appeal may be had to the people of Scotland.
Did the CoR enact popular sovereignty?
No. The proponents of popular sovereignty based on the CoR have – with respect – mixed up the question of the location of internal sovereignty (parliamentary, constitutional or popular) with another cardinal principle of most constitutions (including the UK’s), the rule of law.
That is the concept that the executive (today, the government, in previous centuries, the king) cannot do as it pleases: it has to comply with the law just like everybody else. (As we’ve now introduced two fundamental principles of most constitutions – internal sovereignty and the rule of law – it’s worth mentioning here the third: the separation of powers between parliament (which makes the law, subject in many countries to limitations in the constitution), the executive (which administers the law made by parliament) and the judiciary (which decides what the law is when in doubt). That’s not too much of a digression because it really helps when trying to understand these things to keep all three in mind: even when concentrating on one of them, the other two are never far away.)
Anyway, the significance of the CoR is not that it enacted popular sovereignty, it’s that it enacted the rule of law. Well, it didn’t so much enact it (there’s no sentence in the CoR – I urge you again to read it – saying “From this day forth, the rule of law shall apply in the kingdom of Scotland …”) it more articulates that the rule of lawalready existed. Remember that the background was that King James VII had been acting like he owned the place, blithely ignoring various laws in pursuit of his religious policies and, when anyone challenged him, his response had, in effect, been “Hey, I’m the king appointed by God! The law doesn’t apply to me, I can do what I like!” That’s what the CoR declared was not on. You can see this in the following wording in the CoR (which its proponentswrongly point to as evidence of popular sovereignty) that James did:-
invade the fundamentall constitution of this kingdomeand altered it from a legall limited monarchy, to anearbitrary despotick power; and in a publickproclamation asserted ane absolute power, to cass, annull and dissable all the lawes, particularly arraigning the lawes establishing the Protestant religion, and did exerce that power to the subversion of the Protestant religion, and to the violation of the lawes and liberties of the kingdome
Convention of Estates
When challenged on the significance of the CoR, proponents of popular sovereignty sometimes seem to change tack a bit and say it’s not the CoR itself that’s important, it’s the body that passed it. That, the argument runs is because that body wasn’t a parliament it was a higher, more authoritative assembly of the people at large called a “convention of estates”, a regular feature of the pre-Union Scottish constitution.
It’s true that, although it looked very like one bar some abstruse technicalities about the franchise in burghs and the oaths to be sworn by its members, the body that passed the CoR wasn’t, strictly speaking, a parliament. That’s because it hadn’t been summoned by the king (James VII) but by William of Orange (who’d not yet been proclaimedking) at the invitation of a group of powerful Scottish noblemen. But it met in the middle of a revolution (the overthrow of James VII) and revolutionary proceedings are in their very nature unconstitutional. 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.”
It’s also true that conventions of estates were a feature of the Scottish constitution. But they weren’t some supreme body that emerged from time to time to restrain parliament in the name of popular sovereignty. Quite the contrary, conventions were, if anything, subservient to parliament.The precise distinction between a convention (previously known as general councils) and a parliament is a highlyesoteric subject you can read about here (long and boring) or here (two short paragraphs: bottom of page 18 and top of page 19). Suffice to say, conventions were a sort of parliament-lite that could transact most but not all the business an actual parliament could with slightly less formality. They also had to be summoned by the king (so the body that enacted the CoR in 1689 wasn’t a convention either, strictly speaking, although it’s often referred to as such).
Acts salvo jure cujuslibet
Proponents also point to a series of acts of the old Scottish parliament called the acts salvo jure cujuslibet (Latin for “reserving everybody’s rights”) as evidence of popular sovereignty. These acts, they claim, gave people the right to challenge acts of parliament.
Well they did but not all acts of parliament. Acts salvoonly applied to “particular acts” (those in favour of particular individuals such as remissions (pardons) for offences committed in the course of being politically useful to the crown – massacring Covenanters, that kind of stuff) and acts ratifying royal charters of lands or offices.The issue with particular acts and ratifications was that the crown granted them for its own interest but didn’t enquire into whether they might cut across the rights of third parties (such as a civil case arising out of a remitted offence or a prior claim on land granted by royal charter).Therefore, parliament passed an act salvo to make it clear that particular acts and ratifications were not intended to cut off any third party claims which would remain live to be decided in court. You can read an example of an act salvo here.
But acts salvo didn’t confer a right to challenge any act ofparliament and, properly understood, they’re not evidence of popular sovereignty. In fact they’re quite the opposite, they’re evidence of parliamentary sovereignty. That’s because, in passing them, parliament was saying to itself “Hang on a minute, we’re sovereign! Unlike the king, we can do what we like! If we’re not careful, we could be cutting off people’s rights. So we’ll need to pass an act saying that, in the case of particular acts and ratifications only, that’s not what we’re meaning to do.” (Note that the act salvo linked to above contains an exception for the Duke of Buccleuch’s marriage contract. That’s parliamentsaying “But we really mean it with that one. By the application of our sovereignty, we’re legislating away any potential third party claims against it.”)
Lord Cooper’s obiter dictum
Proponents of popular sovereignty also point to the following obiter dictum (remark by a judge in a judgementwhich is not necessary to the decision of the case in hand)by the Lord President of the Court of Session in the 1953 case of MacCormick v Lord Advocate:-
The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law.
Apart from being obiter (and thus not legally binding), the problem with this for proponents of popular sovereignty is that Lord Cooper didn’t go on to say where he believedsovereignty in Scotland did lie. It’s entirely possible he believed it was constitutional rather than popular sovereignty that applied in Scotland. There’s support for that in the fact that he appears later in his judgement (read it here) to approve of a passage by the celebrated writer onthe constitution A V Dicey which spoke of an “absolutely sovereign Legislature [i.e. Westminster] which should yet be bound by unalterable laws.” There’s even some support for it in the CoR – “the fundamentall constitution of this kingdome” it refers to the king having invaded. (These “unalterable laws” and “fundamental constitution” needn’t be contained in a written constitution in the sense of a single document like the USA’s.)
In summary, then, the CoR declared the rule of law, not popular sovereignty; there’s no evidence for constitutional popular sovereignty in the body that passed the CoR or other regular conventions of estates; nor is there in acts salvo jure cujuslibet which, if anything, evidence parliamentary sovereignty; and Lord Cooper’s dictum is neutral at best.
MY COMMENTS
I am going to leave it to others, better qualified than myself to reply to Neil’s article. I can hear the keyboards being pounded as I write. One plea, Neil has written his article politely and I hope the many responses I expect to be posted will also share that respect for the author. We should destroy the content with reasoned argument, not the author. I gave Sara Salyers of Salvo sight of this article in advance in order for her to prepare her reply. It will be published in a matter of hours on Yours for Scotland.
I am, as always
YOURS FOR SCOTLAND.
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I’ve read it and I await Sara’s reply. I’ll print off both articles and read them side by side, cross-referencing as I read. An excellent opportunity to arm myself with counters to any anti salvo, claim of right from the Yoons.
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should have read anti-salvo, claim of right arguments from the Yoons.
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First act of Queen Anne’s Reign
In which she declared the Estates a parliament and that anyone who spoke against it was guilty of high treason .
rps.ac.uk 2017/6/31
Act declaring the present meeting of parliament to be a lawful and free meeting of parliament
Our sovereign lady the queen’s majesty, with advice and consent of the estates of the kingdom presently assembled in parliament, enacts, statutes and declares that the meeting of parliament now convened, by virtue and warrant of the seventeenth act of the sixth session of this parliament, entitled, act for the security of the kingdom, and by her majesty’s adjournment agreeable thereto, is a lawful and free meeting of parliament for the ends therein mentioned. And further, in pursuance of the first act of the first session of this parliament, and without any derogation thereto, it is declared that it shall be high treason for any person to disown, quarrel or impugn the dignity and authority of this present meeting of parliament upon any pretence whatsoever, and ordains these words to be published at the market cross of Edinburgh that none pretend ignorance.
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Indeed.
An Act retrospectively raising the status of the irregular 1689 convention to that of a full parliament.
Which kinda shows which one had the higher status, doesn’t it?
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If what you say is correct Neil, are you saying there is no legal way Scotland become independent?
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The only *legal* way is an Act of the UK Parliament, John.
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“The only *legal* way is an Act of the UK Parliament, John.”
No it isn’t. That’s not my opinion, that is the written opinion of the UK government in the Kosovo case where they made it plain that independence does not need the “permission” of the state being seceded from (though I’d argue that Scots independence isn’t secession but termination of an international treaty).
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Neil, I think you make the same mistake as so many who are viscerally opposed to Scottish independence. I do not mean that as an insult, but, simply, that you interpret matters as you wish not as they are stated in the main document that underpins the UK: the Treaty.
No court in the UK, in either Scotland or England, has the competence to adjudicate on the Treaty, Neil. The Treaty was and remains an agreement between two sovereign, independent nation states of Europe. I agree reluctantly with a lot of what you claim for the CoR, albeit not all by a long chalk, but the Treaty is the one that requires to be resiled in international law to end the Union. It is the founding document of the UK of GB. Remove it and the UK (the original one between Scotland and England) falls, although a form of rUK would remain. Again, the Treaty holds no formal means of withdrawal, but international law deplores this form of constraint on national ambitions, specially when one party to that agreement consistently and persistently breaches the Treaty Articles across the board, and even breaches the fundamental political and legal basis of the Union. In other words, England and England as the UK has undermined the Treaty agreement very often and always to its own benefit. Had both Scotland and England agreed that devolution should be reciprocal, it is likely that this would have been perfectly legal under the Treaty, but asymmetrical devolution, regardless of the need for Scotland to make at least some of its own decisions, cannot be sustained by the Treaty terms. The only way that we can interpret the Treaty as being an English take-over is if we misinterpret it from the beginning – which, incidentally, The Crawford and Boyle Report did. This insistence that only England’s (later) interpretation matters is both disingenuous and verging on legal subterfuge.
Ian Campbell, of Liverpool University, backed the late Professor David Walker’s, (Glasgow University) conclusions, in his 2014 submission to the Journal of the Law Society of Scotland re the nature of the Treaty between Scotland and England. Para 43 of the opinion of Professors Crawford and Boyle considers the possibility: “that Great Britain was the continuator of England rather than a new state. … If one of the two parties to the Treaty ceased to exist as a state in May 1707, it can no longer sound in international law…” – Ian Campbell, Journal of the Law Society of Scotland, July, 2014. To my mind, that final phrase sums up why it was crucial (to England as the UK) that Scotland should have been subsumed in 1707, because it would have rendered Scotland unable in international law to bring a case. The sheer audacity of such a position shames those two professors, David Cameron and England.
Professor David Walker (deceased) explained, also in the Journal, that the Union owed its birth to a Treaty entered into by Queen Anne as head of state of her SEPARATE Kingdoms of England and Scotland. In other words, the Treaty was not concluded by the Parliaments of England and Scotland, although legislative acts of each Parliament followed the conclusion by Queen Anne of that Treaty. This attests to its international nature as both kingdoms, separately, were independent sovereign nation states in 1706/07.
Accordingly the suggestion made (as noted above) in the opinion of Professors Crawford and Boyle that: “If one of the two parties to the Treaty ceased to exist as a state in May 1707, it can no longer sound in international law”, is in [Ian Campbell’s] submission flawed. What this proposition ignores is that in the United Kingdom, it is the Crown which is treated as a symbol, although not necessarily as a synonym, for the state itself.
Professors Crawford and Boyle put forward no evidence to suggest that in 1707 either Queen Anne regarded herself, or that anyone else regarded her, as having CEASED TO EXIST in her Scots as opposed to her English capacity. The dual role of Queen Anne as Queen of England and Queen of Scotland, in accepting the Treaty of Union in her two separate executive capacities from the commissioners representing England and Scotland who had been appointed by her to draw up such Treaty, continues today, with the present monarch, Elizabeth II (and I of Scotland) opening both parliaments (UK and Scottish) as separate head of state of Scotland and England.
1707: “Nov. the 6th, the Parliament for the United Kingdom sat the first time at Westminster, to whom her Majesty made the following most gracious Speech”: ‘My Lords and Gentlemen, It is with all humble Thankfulness to Almighty God, and entire Satisfaction to myself, that I meet you here in this first Parliament of Great Britain, not doubting but you come with Hearts prepared, as mine is, to make this Union so prosperous, as may answer the well-grounded Hopes of all my good Subjects, and the reasonable Apprehensions of our Enemies… My Lords and Gentlemen, In a Work so great and new in its kind as that of the Union, it is impossible but that some Doubts and Difficulties must have arisen, which however, I hope, are so far overcome, as to have defeated the Designs of those who would have made use of that Handle to foment [sic] Disturbances…
‘There are several Matters expressly made liable by the Articles of the Union, to the Consideration of the Parliament of Great Britain, which, together with such others, as may reasonably produce those Advantages, that, with due Care, must certainly arise from that Treaty, I earnestly recommend to your serious Consideration. On my Part nothing shall be wanting to procure to my People all the Blessings which can follow from this happy Circumstance of my Reign, and to extinguish by all proper Means the least Occasions of Jealousy, that either the civil or religious Rights of any Part of this my United Kingdom can suffer by the Consequences of this Union….’
The Commons addressed HM as follows: ‘Most gracious Sovereign, We, your Majesty’s most dutiful and loyal Subjects, the Commons of Great Britain in Parliament assembled, do, with all Thankfulness and Humility, acknowledge the Divine Goodness, in making your Majesty the glorious Instrument of UNITING your two Kingdoms. And we shall never be so far wanting in our Duty to your Majesty, and the Trust reposed in us by those we represent, as not to embrace all Occasions of confirming and improving the Advantages of this happy Union….’ Queen Anne answered: ‘Gentlemen, I thank you very kindly for this Address: The Desires you express of taking all Occasions to improve the Advantages of our happy Union, are extremely agreeable to me… ‘
It is hard to avoid coming to the conclusion, said Ian Campbell, that if the theory supported by Professors Crawford and Boyle, that Great Britain or the United Kingdom became the continuator of England in 1707 while Scotland was extinguished, is to be accepted, the conclusion must equally be come to that Queen Anne and her first Parliament of Great Britain in 1707 were engaged upon some ‘charade’, to create the illusion that they were participating in that first Parliament and that a new state had come into existence uniting the Queen’s two kingdoms (as was stated in the Commons address), whereas in reality England was living on under a new name and Scotland was being extinguished. Is that even likely?
The written Articles of Union with the commissioners’ personal seals, were presented to Queen Anne at St James’s Palace on 23 July 1706. The ceremony was witnessed by courtiers and FOREIGN AMBASSADORS present, which occurs only at international occasions. Ian Campbell stated: “… It is submitted that the inference may safely be drawn that they were present because they were witnessing an international treaty being concluded. Once again, it is scarcely credible that it was merely a ‘charade’ designed to deceive everybody, including the international community, represented there by ambassadors, into believing that an agreement for Union was being concluded between independent nations, when in reality and despite the specific words being used, what was really happening was that Scotland and its Crown were being INCORPORATED into England (subsumption, as claimed by Professors Crawford and Boyle)…
“… It should never be overlooked that the rule of law depends upon the observation and respect for agreements solemnly made. The ‘continuator’ theory cannot apply without interpreting the Union in a manner different from the manner in which it has hitherto been heeded, not least on the UK Parliament’s own website. The ‘continuator’ theory would instead require the interpretation that Scotland had been incorporated by England, just as the Principality of Wales was incorporated by England many centuries ago.” On reading the Treaty and all the workings around it, including all speeches, it is, of course, a nonsense and can be proved to be so in law. Let England as the UK challenge in the international arena.
The ‘continuator’ theory of Scottish subsumption by England in 1707 threatens to destroy partnership and establish dominion, as Ian Campbell shows. The Balfour Royal Commission on Scottish Affairs Report 1952-1954, presented to Parliament in July 1954 (to which the Law Society of Scotland gave evidence through its representatives), stated in its first Chapter: “SCOTLAND IS A NATION AND VOLUNTARILY ENTERED iINTO UNION WITH ENGLAND AS A PARTNER AND NO AS A DEPENDENCY.”
If all the above is legally correct and provable, it is the Treaty that determines Scotland’s status within the Union – that of a partner – and it, furthermore, determines the Treaty as an international treaty in international law, the consistent and regular breaching of such renders it open to being resiled as being unworkable. That would nullify the Union between Scotland and England and render the UK of GB no longer feasible, allowing Scotland to withdraw. It would then be up to England as the UK (and as the former England) to challenge Scotland’s case in in international law. Domestic law would not even come into it because neither the Scottish courts nor the English courts, and not even the Supreme Court will have any competence or jurisdiction to rule on the Treaty. The very last thing any self-respecting supporter of independence for Scotland should want is to take any case for dissolution of the Union to any British court, either in Scotland or in England except to have it ‘sound in law’, if desired, as a precursor to an action in the international arena.
So, no, it cannot ever be by an Act of the British parliament that the Union is dissolved unless as the domestic finale to an international ruling. Subordinate and secondary legislation cannot overrule primary legislation. The primary legislation is the Treaty; the Acts that translated that Treaty into domestic law in both Scotland and England is subordinate, secondary legislation. To repeal the Acts would only ever be done in the event of an international ruling to resile the Treaty and dissolve the Union. As a lawyer yourself, you will know that the Scottish lairdies in the HoL have been trying very hard to have the Treaty renegotiated as an Act so that it will be under the jurisdiction of British law. That would be utter folly for any Scottish government to attempt and would see it booted out of office, and Scotland leaving the Union anyway. Unionists really need to start being realistic. They have had over 300 years all their own way. Time to move over and stop blocking the sun.
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So, let me get this right from what you are saying Neil, if a Parliament goes rogue, does not reflect the wishes of the electorate, then there is nothing that can be done.
That seems to be the essence of what you are saying and at a stroke more than suggests that the Treaty of Union is of absolutely no effect.
Maybe Liz Truss, if she is to become Prime Minister, could pass legislation to make make the UK and even colder place for immigrants. One hundred lashes for daring to cross the border and transported off to a Gulag in some far away corner of the globe. No checks and balances then on a sovereign parliament which we know, means no consideration whatsoever for Scotland. You will not have a choice, will not have a vote, not now, not in ten years, not ever. And get these Jock MP’s out of the House Mr Sergeant at Arms, they shall not speak.
Yes, I get the idea Neil. Wrap it up as eloquently as you can, but the reality is really quite simple. And of course, as you will maybe recall, a Mr Adolph Hitler had a sovereign parliament.
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Willie, if a Parliament goes rogue and does not reflect the wishes of the electorate then what can be done is that presumably that electorate will vote it out of office at the next election.And as for your scenario that Parliament votes itself plenary powers etc., well the courts have given hints that they might depart from the sovereignty of parliament to preserve the rule of law – but when things have got that bad, is anybody listening to the courts?? No constitutional system is foolproof when people go rogue (as witness the USA where efforts to control guns are hamstrung by their constitution written 250 years ago).
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“Willie, if a Parliament goes rogue and does not reflect the wishes of the electorate then what can be done is that presumably that electorate will vote it out of office at the next election”
Or they abandon elections to avoid that – as happened in Germany in the 1930s. Or they take control of the Electoral Commission which oversees elections AND introduce voter id which disproportionally affects poorer voters who are less likely to vote Tory as they are currently doing in the UK.
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Neil, I may be wrong but as I understood it the USA constitution was, amongst other things, amended to allow its citizens to bear arms lest the British tried to return.
As to your comments that presumably the electorate will vote out of office a parliament that does not reflect its wishes is this the situation that appertains, and or is suggested to appertain, where Scotland gets a government, a parliament that does not reflect its wishes.
Put in layman’s terms this is this the situation where Boris Johnston or Liz Truss say no choice, not now, not in ten years, maybe not never. England says no Jock, no matter Jock’s wishes are, and by the way throw those Jock MPs out who dared to try to speak.
Something does not gel with this. It seems wrong, very very wrong, and that’s before folks get in to deep discussions about what people’s constitutional and natural rights are.
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Scotland has repeatedly done this over the last twenty or more years. We have not voted Conservative in any great numbers for the Westminster parliament and now that body has seriously ‘gone rogue’, enacting policies which are to the detriment of not just those of us in Scotland but the majority of ordinary people across the UK Surely there is some way to redress this situation?
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I welcome Neil’s engagement, it’s very rare to find a Unionist who even tries to engage constructively. I’d like to see a lot more of it.
I’m going to have it read it again and mull it over, but I don’t have time this morning. My first “beef” is over Parliamentary Sovereignty and Constitutional Sovereignty.
Which one is it? Sovereignty is an absolute, binary condition, so one of them “isn’t” a sovereignty, it’s something else we’re “calling” sovereignty.
I’m backing Constitutional Sovereignty as the real deal; the birthright of every Scot.
Parliamentary Sovereignty is a political mechanism that’s inseparable from power, but power and sovereignty are not the same thing.
I don’t believe you see Scotland’s popular sovereignty codified in either the Claim of Right 1689, nor indeed in the Declaration of Arbroath 1320. That’s not what these documents are trying to define.
For comparison, by way example, you could analyse a murder, examine the body, collect all the evidence, put the accused on trial and put the right man in jail, but it would only be one instance of “a” murder. You wouldn’t have a definition of what constituted “murder”, nor would you have a template against which other murders would be judged.
So it is with Sovereignty. Scotland’s Constitution and popular sovereignty is a principle, a “true” sovereignty, but hard evidence of existence is fragmented. This fragmentation does not invalidate the sovereign principle, but it does seem to spawn unfortunate ambiguities and paradoxes; one such paradox being the Treaty of Union itself, which cannot “properly” exist as a legitimate manifestation that is compatible with Scotland’s Constitutional Sovereignty.
The notion of Westminster’s Parliamentary Sovereignty is a fiction. Westminster has power over Scotland, but not sovereignty, but for over 300 years, Westminster rule has had to continually muddy the waters to keep it’s constitutional inadequacy hidden while it masqueraded as a sovereign Government.
Westminster has power. But it takes power and legitimacy to be sovereign.
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Well said.
Perhaps what is needed is an understanding of what sovereignty actually is, where it resides and how it is shared.
In laymen’s terms sovereignty is the ultimate authority one has over oneself and ones actions/deeds. It first and foremost rests with the individual.
It then is shared by a collective of people (nation/tribe) and again as a country and or state. The last being state. The sovereignty of which is to ensure the sovereignty of the collective and individual is upheld (or should be) when dealing internationally.
In short, the state is the agent not the principal. The primary original is the individual.
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Spot on Breeks. Parliamentary sovereignty allows the current Westminster government to act as an elected Dictatorship and it seem that the people of the UK have no redress against the corrupt, incompetent and cruel policies it enacts. We should be able to challenge this and say ‘Not in our name!’
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Like many other supporters of Scottish independence and liberation I welcome Neil King’s opinion. However, he dwells on opinions and questions relating primarily to wha hauds oor ‘soveranty’ the noo. Of course we aw ken wha hauds us doun the noo, which is why Scots want independence and liberation from oppression (‘doun-hauden’).
He appears to imply that Scotland cannot assert or re-assert its sovereignty, and thus is held (colonialism is defined as ‘force’ lets remember) by the entity Scotland helped create through the Treaty/Acts of Union (i.e. the British state).
In this, Neil appears to be ignoring the two most common methods, both acceptable under international law, for ‘a people’ to secure national liberation/independence AND therefore to acquire (or re-acquire) their sovereignty, in addition to the necessity to deal effectively with the always urgent matter of an oppressed and exploited people and land. These are:
1. UDI
2. Self-Determination/Decolonization
Moreover, the Treaty of Union is clearly a violated agreement which means the Scots as signatory party must be able to lawfully withdraw from it. Once a treaty-based alliance is no longer in the national interest it is (usually) ended.
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“Neil appears to be ignoring the two most common methods, both acceptable under international law, for ‘a people’ to secure national liberation/independence … These are: 1. UDI 2. Self-Determination/Decolonization”
I was ignoring them deliberately because these methods are not legal *within the context of the UK’s constitution* You may well be right that they’re legal in the context international law Alf but that’s not what Salvo is about which is (unless I’ve misunderstood) about legal mechanisms to achieve indy within the framework of the constitution – the CoR having declared popular sovereignty in Scotland and that having been expressly reserved in the Acts of Union etc. etc.
As regards your last paragraph, you make it sound like England and Scotland are two countries bound by treaty relations (like the countries in the EU or NATO etc.) We’re not but the ‘the treaty has been violated so we’re at liberty to withdraw’ thing is separate from the CoR which is what I’m focussing on. That’ll have to be the subject of a future article!
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At least you acknowledge that your article ignores what are arguably the two main routes to independence, as recognised in international law, so thanks for that.
Before you offer any subsequent article on the matter of national independence and international law you may wish to consider former Ambassador Craig Murray’s papers in this regard, such as this one: https://www.craigmurray.org.uk/archives/2022/07/independence-justice-and-the-unionist-lord-advocate/
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Dear Prof Baird
In the article by Craig Murray to which you refer above the word “majority” is not used by the author. The words “declaration” or “declarations” are used 13 times. A poster under the name of Alan Crocket made the point to Mr Murray, “The only real barrier to independence is, as always, the Scottish people themselves, so we must persuade the majority to vote for it.” In Mr Murray’s response he did not address this point at all. Alan Crocket subsequently wrote …”To go independent, we really need two things. One is of course a Yes vote, and the electoral plebiscite is a means to that which London cannot subvert.” Mr Murray does not appear to have responded to this point at all.
In your response to Neil King’s opinion on Sovereignty you identify two methods for Scotland to “assert or re-assert its sovereignty.”
1. UDI
2. Self-Determination/Decolonization
You do not use the word majority.
Could you please confirm that you consider a plebiscite majority in Scotland in favour of independence to be a prerequisite of that objective?
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“Could you please confirm that you consider a plebiscite majority in Scotland in favour of independence to be a prerequisite of that objective?”
A majority of Scotland’s MP’s was sufficient for Scotland to enter into the UK treaty-based alliance arrangement therefore a majority should be considered sufficient to end it. Scotland has returned three such successive majorities since 2015 and these MPs should have withdrawn Scotland from the UK by now, and certainly in view of Scotland’s enforced Brexit.
In addition, post referendum research found that a majority of Scots had voted for independence in 2014 and it was only through the votes of people from other UK nations and elsewhere that kept Scotland in the union. This was also despite the fact that a lengthy period of colonialism leaves many among the native population with a colonial mindset and who may tend to favour continued ‘dependency’.
My view and that of the UN is that ‘there should be no external interference’ in the self-determination process yet Scotland is and has been subject to extensive interference, an example being the use of an irregular local government franchise for a national referendum.
Postcolonial theory tells us that “independence is a matter only for the colonized” (Albert Memmi).
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Craig Murray points out that the Supreme Court of Canada found against Quebec secession on the grounds that the territorial integrity of Canada was of greater importance than the self-determination of a region of Canada – a flawed argument in international law. Our situation is very different, anyway, because of the Treaty and the CoR. I may well be wrong, but I would contend that the Supreme Court of the UK would do the same to Scotland, and I don’t agree that it has competence or jurisdiction to pronounce on Scotland’s right to self-determination via the Treaty breaching because the Treaty was founded in international law and must be adjudicated on in international law, in the international court itself or in one of its tribunals. We will never receive justice in any domestic court. The fact that the Supreme Court was set up is testament to the collaboration of Scotland’s legal profession, or, at least, its top echelons. It was the perfect opportunity to argue for the Court of Session and the Court of Justiciary to have sole and highest application in Scotland as they has before 1707. Nah. Acquiescence rules!
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Lorncal, Canada’s constitution and federal structure meant Quebec could not secede from Canada.
Conversely, Scotland’s constitution (CoR), existing sovereign status, and reality of a treaty-based alliance agreement, means Scots can lawfully decide for ourselves to end the union, via any elected majority of national representatives.
The Supreme Court of Canada did however find that ‘oppressed’ peoples and nations are normally given international recognition. By any measure – culture, language, demographics, economic, political – Scots are oppressed (‘doun-hauden’).
Hence my conclusion in my book ‘Doun-Hauden’ that Scots have a right to independence via either route – UDI or Decolonization.
Scotland only remains held in the oppressor’s grip through the SNP’s ‘petrification’ and ‘co-operation’ with the colonial power, which postcolonial theory confirms is what often happens with a dominant national party.
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Alf: I agree, but international law allows Quebec to leave Canada. International law allows Catalunya to leave Spain. The constitutions of each of those countries does not allow secession and neither is a ‘country’/partner, etc. that Scotland is to England. The international community will not interfere unless a case is made to it, and, even then, it might not consider it to be its place to interfere, except to issue a warning about conduct. Our Union is very different and I understand that because I have been studying it for many a long year. What I am saying is that England as the UK will very likely try to use similar tactics. So much is based on what England as the UK can get away with, and what we are prepared to let it get away with. If history is any judge, that is quite a lot. The whole co-opting of the UK to England’s self-interest has been done quite openly for the past 300+ years, and Scotland has been acquiescent and supine. That is my point. That is why Crawford and Boyle is so dangerous. The CoR will be useless in the face of a ruling that Scotland was subsumed in 1707. Do you see? Even the Treaty, unless it is ‘sound’ in law and still extant in law, will be of little help if Scotland was subsumed. Even if it wasn’t. It will never be enough to say: we have the CoR and we have the Treaty, so there! We will still need to do what it will take to make them efficacious to our case. That means proving in international law that we have a case, and we can use the Convention of the Estates to do that on behalf of the people – but, again, only if it is called, and only if we have some means of showing that we have the support of at least half the population.
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Indeed, Alf. Neil’s interpretation, like Crawford and Boyle, is seriously lacking in democratic accountability. In fact, it is so oppressive that that alone should be enough in international human rights law and other laws to end the Union. If you can’t ever get out from under no matter what the other party does, that is oppressive law and cannot stand. I, too, am glad that Neil is engaging. He is a pioneer! No one has ever done that before. Where I feel he is right to some extent, and I have said this for many a long year, it is not the Claim of Right that we should be concentrating on, or, rather, not just the Claim of Right, but the Treaty because I believe – albeit I could be wrong – that our salvation lies within the Treaty and its intention which can be evidenced from the mouths of those who brought it about. The false and entirely opportunistic and self-interested misinterpretation of the 1707/08 English MPs and, all the English MPs and civil service, etc. since then, is in no way indicative of the reality of the situation in 1707 and today. The Treaty cannot be overturned or superseded or restructured in any way except under international law. England and England as the UK have been behaving ultra vires in law since 1707. No ifs, no buts.
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Parliamentary sovereignty is an English concept and has no counterpart in Scots law. There is no English parliament as England’s was abolished in order to create the binary parliament of GB. There is no Article nor clause within the treaty of 1707 that transfers English parliamentary sovereignty into the parliament of GB. In fact, there was no law at all for English parliamentary sovereignty which is why the English government sought to write it into law via Clause 38. It was merely an English convention that was adhered to but held no legal weight. Even the parliament of UK states that conventions can be ignored as they are not laws. One would think if studying law one would know the difference between law and convention. Furthermore, the treaty itself forbids English law to be imposed on Scotland and vice versa. Thus claiming English sovereignty somehow supercedes Scots is utterly dishonest.
Nor is there a constitution of GB as the constitutions of both sovereign nation states and parties to the treaty are upheld in the treaty. Scotland’s sovereignty and independence is not only upheld by the treaty but is enshrined in perpetuity under its ancient laws and customs which form the foundation of the Scots constitution. It is also why England cite Henry VIII laws which predate the formation of the state in lieu.
Repeatedly, the term “country” is cited for that of the state. Great Britain is NOT a country. It is a state uniting two sovereign nation states for the purposes of trade. As previously pointed out, there is no constitution of GB. Neither is there a government of GB despite there being a parliament. There are no institutions bar a shared treasury with equal representation, no religion, legal system, border, capital, majority rule nor clause granting dominion based on MP numbers, population or vote, no party political system, military nor even nation.
The argument against Scotland is based on error compounded by further errors in the understanding of what the state is, how it was formed and the rights of both sovereign states within it. Conventions while often adhered to are not laws.
Domestic law is inferior to treaty law. As much as some folk wish they could extinguish Scotland, that is not the case in both law and practise. Even the crown office maintains both states of Scotland and England in their separate capacities and identities. It would bode well to understand the origins of the Scots constitution and the difference between what is a convention, law, state and country. As they all seem to be confused in this article where the author tried to promote the Crawford and Boyle argument that was torn s new one by the late professor David Walker.
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With respect Gayle, the sovereignty of parliament is not just a mere convention.
What’s the Crawford and Boyle arument (got a link?) and what was the clause 38 you mentioned?
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Yes, Gayle, Unionists interpret the Treaty, because Scotland was willing to accept a goodly number of English constitutional conventions, as being England subsuming Scotland. What nonsense! Both the late Professor David Walker and Professor Ian Campbell demolished Crawford and Boyle and also the favoured English interpretation of the Treaty, which can be shortened to: everything I have is mine and everything you have is mine. In reality, and in law, the Treaty is a partnership, and, while there is no specific statement contained within it that says, Scotland and England are in partnership neither does it say they are not, or that England is the dominant partner – nowhere. On the contrary, the Treaty spells out, Article by Article, what a partnership of equals is. The English parliament and Whitehall were chosen for the seat of the British parliament because the monarch was also seated in London. That is all there was to it, and the English constitutional principles agreed to were also in existence around the monarch and made it easier for the monarchy to work from rather than having two sets of conventions, albeit, when monarch in Scotland (still separate under one head), Scottish precedent is adhered to. My gut feeling is that the English constitutional lawyers might well argue as Crawford and Boyle did – in fact, they probably will – but the know and we know that are wrong and cannot evidence their conclusions because they are false, perhaps deliberately so. That is our strength. If Neil wants to be Unionist despite all the evidence, that is his choice, and the choice and right of any Unionist, but I think I would find it impossible to shore up a Unionist belief system based on the Treaty itself. It is a false premise, as Crawford and Boyle discovered when Walker and Campbell demolished their arguments.
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There is a rebuttal on its way so no need to respond to all the points raised. But, I couldn’t let the opening phrase of the first sentence pass without comment:
“The sovereignty of parliament (or parliamentary sovereignty for short) is the principle of the British constitution”
Woaahh!
The British constitution is not written down. ‘Parliamentary sovereignty’ is a set of precedents, conventions and traditions. These are open to interpretation. They can be ignored. They can be amended, deleted or augmented. And all by the Prime Minister or UK Government of the day. Witness Boris Johnson proroguing Parliament in 2019. Witness the continued refusal Johnson and (before him) May rejecting Section 30 requests because the precedent of the Edinburgh Agreement (2012) is no longer convenient or appealing to those that represent the British state.
A proper constitution is written down. It must be adhered to, a self-evident truth. It can be changed as in the US Constitution but needs a super-majority of two-thirds of the members of both Houses of Congress to be approved. The whims of wishes of the President of the most powerful nation on Earth do not override these rules.
The British constitution is not written down for a reason. It is so those in power can make it up as they go along. It would not be recognised as a constitution in other properly founded and democratic states such as the USA, France, Republic of Ireland etc.
That is, there is no such thing as a British constitution.
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Duncanio, it may not be written in a single document like in USA, France etc. but that doesn’t mean Britain doesn’t have a constitution. In fact, even in countries with written constitutions like USA etc., their constitutions aren’t in a single document either because they have been interpreted by the courts over the years so you need to look at these court decisions as well to discover what the constitution in the USA actually says and means today. So the difference between written and unwritten constitutions is not as great as you may think.
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“So the difference between written and unwritten constitutions is not as great as you may think”
I’m afraid the lived experience is contrary to that and I have given two recent examples of this in the UK. In addition I have quoted the actual rules that govern the the changing of articles in the USA constitution – there are no such rules in the UK as far as I aware. So that is as different as black and white.
I see no evidence, Neil, for the assertion you make in your response.
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If i was looking for the british constitution where would i find and who could interpretate it to me.
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You have a sense of humour John.
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I liked the bit where he said that the laws were already in place in Scotland.
The fact that Claim of Right Act 1689 remains extant in its entirety is nice, because it highlights the following two clauses:
That it is the right of the subjects to petition the King
And they Doe Claim Demand and insist upon all and sundry the premisses as ther undoubted right and liberties And that no Declarationes Doeings or proceedings to the prejudice of the people in any of the said premisses ought in any wayes to be drawne hereafter in Consequence or Example
Ergo, the Crown and those acting on its behalf cannot pass a law, or perform a deed, that can’t be challenged.
Parliamentary sovereignty does not trump the sovereignty of the people of Scotland.
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Scott, in saying:-
“Ergo, the Crown and those acting on its behalf cannot pass a law, or perform a deed, that can’t be challenged.
Parliamentary sovereignty does not trump the sovereignty of the people of Scotland.”
I think you are, with respect, mixing up the Crown (the executive) with Parliament (the legislature). The significance of the Claim of Right is that it limited the powers of *the Crown* but it didn’t say anything about the powers of Parliament.
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I’m not mixing anything up, powers of the Crown are devolved to the Parliament, there’s no de-coupling invovlved.
Also, Claim of Right Act 1689 didn’t limit the powers of the monarch, those limits already existed and exist to this day.
Essentially, the purpose of the Act was to set out the T&Cs accepted by William and Mary; They were new to the area and needed to be brought up to speed with their obligations.
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No, not as such, Neil, but the parliament is now very much the successor of the monarchical powers, so it is, if you like, in the shoes of the monarch. We did not have a constitutional monarchy as such in 1689. Its wings were clipped, granted, but it cannot be said to be a ‘constitutional monarchy’ as we understand the meaning today.
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If Scots vote via an internationally recognised democratic event to dissolve the treaty of union (which wasn’t entered democratically), then the union is over. Scotland either becomes sovereign or an occupied state.
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Scotland doesn’t become sovereign via a vote to dissolve the treaty. It already is. Its full statehood which while voluntarily participating in the treaty was in a dormant state would simply be officially reinstated.
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The point may be that Scots (and particularly the last 3 nationalist majorities of MPs) do not exercise or assert Scottish sovereignty and until we do so we are not acting as a sovereign people, but rather as a subaltern people. We become sovereign when we behave sovereign.
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Yes Alf puts it better than I do. We have to exercise that sovereignty- which we are not doing in requesting a s30 or permission from a foreign court. If it is exercised in a democratic event, it is then for the rest of the world to recognise and perhaps actually to no longer recognise the United Kingdom as an entity with which to negotiate on Scotland’s behalf.
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Neil thanks much for writing this, I do appreciate it. I hope you are enjoying your retirement in Portugal. But the thing is that I and all other Scots have now lost that right despite voting to remain in the EU 62%. I could cheekily ask which union you are a unionist for? 🙂
“Hey, I’m the king appointed by God! The law doesn’t apply to me, I can do what I like!” That’s what the CoR declared was not on.”
And what Scotland (or folk who want to explore Salvo and the CoR) say is that Westminster is acting like the king in the above example. It is indisputable that the Johnson government has broken national (prorogation etc) and about, in the case of the NIP, to break international law. And there will be other examples.
You say Scotland didn’t have a written constitution, I’m sure Sara will counter and argue that we did, through a variety of documents, though it was not amalgamated into one. I’ll leave that to her.
However I think you are saying there is no way under national (UK) law that Scotland can become independent unless Westminster “lets” us. If that’s the case, then Scotland needs to use the international law of the right for a people to have self determination. I’m not a lawyer but I believe international law supersedes national in these circumstances. In addition the Treaty of Union is/was an international treaty which has been broken since day one and indeed still is being. The ToU gave Scotland the same trading rights as the rest of the union, and the NIP means that we don’t have that any more. We could surely ask an international court to deliberate on these breaches and whether it renders that Treaty invalid.
The world was against Scots independence in 2014 because they saw the UK as a stable mature democracy (on the surface, they knew the nature of the beast in private) albeit an arrogant one and they couldn’t see why anyone would want to leave. I think they see it differently now especially if the peace process in NI is wrecked by cakeist Tories.
I guess that’s a long winded way of saying, we’re not giving up. The realistic amongst us know that our independence will need to be taken, it will not be given. And we’re going to explore EVERY avenue. At least whilst a hundred of us remain*…
* the Declaration of Arbroath, a written constitutional document from 1320.
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On the subject of “unless Westminster lets us”
If Scotland wants independence either it will come about through democracy and reasonable agreement or the streets will be soaked with blood. History teaches us that. History trumps everything.
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In the end, Marion, that is it: either England as the UK accepts our leaving and comes to an accommodation or it invades us and kills us. There is no middle way. None. Our case is solid and, although open to challenge, of course, is unassailable as to evidential proof in international law. Would England as the UK recognise that international law? Possibly. Possibly not. They continue to get away with slighting the Chagos Islanders, but, even there, hostility to their arrogance is becoming untenable for them, if not for the US who actually occupy the islands with British blessing. We must never forget the stake that the US has in all UK enterprises, and its willingness to interfere in its own interests. Taiwan is testimony to that, and China is considerably bigger and more powerful than the Chagos Islands or Scotland. That doesn’t mean we should not try. I have long been an advocate for Scottish diaspora involvement in, and support for, independence – in the US and elsewhere.
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You are certainly correct. The past is almost always a predictor of the future.
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I shall wait forSara to respond, as I am more inclined to believe someone who has put as much work into the ins and outs of the COR and who lives here fighting to educate others to what it means for us.
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Hmmm. Thanks Neil for stating your case. And good luck in Portugal… I hope the recent 40% devaluation of the £ due to Brexit isn’t hurting too much.
I’m not going to go through your article bit by bit… I don’t have the expert knowledge, and besides its turning out to be quite fun watching everyone else do so.
What I will say, is that while reading your essay, Sovereignty, The Law and the Constitution… I was reminded of the street hustlers with the 3 cups that they switch around, and you have to guess which one hides the penny.
Since there is an overlap between the 3 things, I guess in any dispute over this matter, the 3 cup switch is going to be the lawyers main game.
Kind regards, and thanks again for the essay.
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I found this from 2014..
http://bellacaledonia.org.uk/2014/02/25/the-fiction-of-the-continuing-state/
The Fiction of the Continuing State
BY BELLACALEDONIA on FEBRUARY 25, 2014 • ( 2 )
Grand Larceny and the fiction of the continuing state, by Christian Wright.
Part IV of the legal opinion published by HMG last year claims Scotland was “extinguished” when it was absorbed by England in 1707, and that the dispositive evidence to the contrary of Articles of Union can be discounted.
With the best will in the world, this part of the document appears to be risible.
It is the work of two eminent lawyers James Crawford, and Alan Boyle who were tasked to provide legal advocacy and the imprimatur of learned consideration, for a line of argument that does not withstand even the most cursory examination.
Is is unclear how it could withstand scrutiny by any impartial jurist. It is beyond me why the Scottish Government has ceded this ground without any apparent resistance.
If you peruse Part IV of the UK Government’s Legal Opinion of 2013 (link above), HMG went to extraordinary lengths to argue England is the continuator state.
HMG holds that Scotland will be a brand new state and as such not heir to the assets of the UK. They do hold however, that Scotland is heir to the liabilities of the UK. This is surely a case study in having your cake and eating it too.
HMG had no alternative but to argue that case if it is to be reasonably sure of retaining its vanity permanent seat on the UN Security Council, have minimum difficulties in retaining its opt-outs within the EU, and to continue the fiction of a UK marching on ”move along, nothing to see here” as a major power.
The fly in the ointment is that they simply cannot afford another 100+ billion debt on the books as their state is simultaneously diminished, losing close to 10% of its GDP, 90% of its oil and gas reserves and revenues, and a third of its landmass.
That is why the have adopted this convoluted argument that Scotland was “extinguished” when it was incorporated into England in 1707, that England continued, and that the titles “UK” and “England” are synonymous, describing the same continuing unitary state.
They argue that therefore Scotland is part of the territory of the continuator state of England/UK, a part which will secede from the mother country of which it has been a province for the past 307 years. Scotland will then be a newly born state with no right to the assets of the UK but liable for it debts.
However, the Articles of Union of 1707 do seem to offer dispositive evidence to the contrary. Consider this statement from Article IX:
‘… the Parliament of Great-Britain, to be raised in that Part of the united Kingdom, now called England …’
Now, doesn’t that single statement kill HMG’s case stone dead? What it is saying is that England is part of the UK, not that it is the UK or that it has absorbed Scotland, which by deduction must be the other part of the UK and therefore not part of England. That is to say, the statement tells us they are both component parts of a binary union. N’est-ce pas?
This is but one example of the evidence leading inexorably to the conclusion that HMG’s position is bunk.
Now HMG in its legal opinion, discounts the relevance of the Treaty (act) of Union of 1707. We’re not here to argue their case, but to challenge it. The treaty and enabling acts of parliaments that created the UK are not relevant?
Now, that case could be made but it is very thin gruel indeed, and the argument being offered here is that there is at least one other that is far more robust.
Alright, so can we construct that more reasonable and convincing case?
Well let’s see . . .
The United Kingdom of Great Britain is a legal and political entity formed by the Union of two and only two countries – the Kingdom of Scotland and the Kingdom of England (incorporating Wales). It was created by a bilateral internationally recognised treaty.
It is the case that upon dissolution of the Treaty of Union, its associated enabling acts of parliaments, and any subsequent contingent intra-state treaties and agreements derived therefrom, the United Kingdom of Great Britain will cease to be.
As you might expect, two and only two successor states will emerge from its discarded husk – the Kingdom of Scotland and the Kingdom of England. There can be no continuing state of an extinguished voluntary union of two nations. It is on its face a daft proposition.
Consider the tautology: When the Union is dissolved, the Union ceases to be.
Scotland as a successor state, just like England, would retain EU membership, though there would have to be negotations with both successor states and the EU to regularise their new status.
Each will inherit the rights and responsibilities of any inter-state treaties entered into collectively on their behalf by the (by then) defunct United Kingdom.
Each successor state will be heir to their share of the accrued assets of the United Kingdom, and responsible for their share of the liabilities incurred by the United Kingdom during the tenure of their union.
The Scottish Government’s incomprehensible response
The Scottish Government has habitually talked about secession and leaving the UK. It has ceded the point that the UK will continue to exist after Scotland leaves.
In doing so it has agreed with the assertions of London that England/UK will be the Continuing State, and conceded that Scotland is not a successor state
As noted, the only way for Scotland and England to be free of one another is by the dissolution of the union that binds them. That requires that the signatories of that union reemerge as successor states.
You either have two successor states, each heir to the assets and liabilities of their former union,
OR
a single continuing state, heir to all of the assets and liabilities of the former union, AND a completely new state, heir to neither the assets nor the liabilities of the former union.
This is self evident, yet the Government of Scotland, charged with the responsibility of representing the interests of the People, has singularly failed to usefully challenge the outrageous assertion that Scotland does not exist, that the territory describing the realm of Scotland is today and has been for the past 307 years, an integral part of England, and that consequently, we are all Englishmen and women.
The Union Government by adopting the findings of this opinion, has officially denied Scots their homeland, their claim to nationhood, even their existence as a people.
HMG has explicitly rejected the people of Scotland’s claim to their fair share of the accrued fruits of their labours over the past three centuries, manifest in the current cumulative wealth of the United Kingdom of Great Britain.
This wealth exists in the form of the Union’s treasure, its institutions, its treaties with foreign states, and its commercial agreements with global business.
The official position of HMG as previously state, is that Scotland will be a brand new nation, that will have no claim to the assets of the Union, but will be liable for its portion of the liabilities of the Union to the tune of £100,000,000,000 (100 billion).
Oh, and they also want to charge Scots for the huge cost of relocating England’s strategic nuclear arsenal currently ensconced in Faslane. You’ve got to admire London’s chutzpah.
Let us be clear about this: The Government of England/UK has signaled its intent to commit larceny on a monumental scale against the Scottish people, and it is doing so without any apparent conscience or embarrassment, in broad daylight, in front of the eyes of the entire world.
Where’s the outrage?
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No outrage because neither SNP/Green loyalists nor Unionists will have any. They like things as they are.
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Bella Caledonia might have run that years back, but fiction is now its speciality, particularly the fiction of men being able to become women. It backs that fiction 100% and Heaven help you if you offer an alternative view. Either we adhere to evidential truths or we have what we have – both the trans issue and Unionist tropes on independence. Objective truth that can be evidenced is all we have to maintain sanity. Both the majority of females and the majority of Scots are traumatized and suffering from Kafkaesque distortion of reality thanks to trans warriors, and their enabler politicians, and to Unionists and their enabler MSM.
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I agree about Bella Caledonia Lorna, I am NO fan never really was, but I saved that as I found it interesting in 2014..
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OT – Wee Alba Street Stall today in Pitlochry – Main street, 1330 – 1530. All welcome.
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Well, after reading all that mumbo jumbo Neil is telling us we are stuffed – personally, I don’t care what any of this means, what I do know is that we are Scots and live in a country called Scotland, and if we have had enough of being a colony of England we have the right to say we are going our own way and that’s an end to it – if that is the will of the people of Scotland we simply make that clear – in the end, England can not stop us, what are they going to do, send a gunboat up the Fourth, to stop us. I am sure if the will of the People of Scotland was put in a more forceful manner – the media would light up and Westminster would have to sit up and pay attention, however, if we keep sending careers and opportunists to Westminster that are content to warm the green benches and reap the rewards of the Westminster gravy train, then Neil is correct – we are stuffed.
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Why is it that those who live outside of UK,are is its most ardent supporters, usually Brexiters. I dont need a lawyer to tell me that the colonial masters laws are laws designed to suppress the indigenous populations desire for independence and self determination. The English parliament has passed laws to deny me my emancipation from English colonial rule , how ridiculous. We have a Scottish constitution written into the treaty of Union the UK, Parliament does not have a constitution. In Scotland we the people are sovereign and our colonial masters laws are their laws there claimed Sovereignty over us is irrelevant a master slave relationship under international law it has no validation .This is just an attempt to gaslight the Scottish people to keep us impoverished and enslaved to their rotten, corupt , Union. Smoking mirrors of the colonial mindset.
Dissolve the Union.
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Well said Alistair. The Treaty of Union was created against the wishes of the sovereign people of Scotland. To my mind it has been contrary to the constitution of Scotland from day one and in Scots law should have been deemed illegal long before now. The Treaty was subsequently enforced by the military power of the British Army? Westminster just makes up its constitution as it goes along to suit the needs of the day. Who else gas no written constitution – that other Kingdom- Saudi Arabia.
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Would it surprise you, Alastair, to learn (or, perhaps, you already know?) that many ex pats living in Spain, for example, voted for Brexit or supported it, completely oblivious to, and ignorant of, the effects it would have on them? They actually believed that they were supporting the UK against… well… Spain… and France… and Germany… Never underestimate the stupidity of some people, my friend, or the malign influence of so many who will never themselves feel the effects of their crass indifference to others.
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Yes Lorncal, people do not necessarily vote for what is in their best interest, but on what their values are. And in the colonial environment “the values of the colonizer are sovereign” (Memmi).
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Thank you for engaging Neil.
I only have one quote by Canon Kenyon Wright to respond.
” What if that other voice we all know so well responds by saying ” We say no, and we are the state?”
Well we say yes – and we are the people ”
I rest my case.
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And that Aileen is the top and bottom of it.
England says no. They say. Not you. And if you don’t do what they say, being the bigger nation they use the big brutal stick. It is the law of the jungle. That is how England got its empire. And that is how it lost its empire. We do not need to look to far from our shores to see the island of Ireland. Soaked in blood as the English strove to retain their colony with the Irish ultimately fighting back.
The troubles as the British Press euphemistically called it most certainly spread blood and guts onto the streets of mainland Britain whilst the shadowy military death squads took out political opponents as part of what was a truly Dirty War.
And did the British win. Well that’s a question that would better be answered by others. One thing for certain an awful lot of the British citizens in Northern Ireland didn’t hold British and Westminster sovereignty in the highest of regard. Second rate citizens in a gerrymandered colony seems to have been their perception.
England will fight and England will be right. It is their way. Has been down the ages and now, the empire, a busted flush on the coat tails of America and off the coast of a mainland Europe that it detests, it only has its Scottish colony left.
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All western democracy are based on allowing the people of a country to vote for what they want based on a parties manifesto and the biggest party is then elected to enact their manifesto. So let’s see what the SNP put in their manifesto for the next Westminster election, because if they do hold a plebiscite its entirely based on the same principle as any ordinary election.
We are going to find out in a few days how the parties involved in the supreme court action will argue their case. I’m a bit sick of being told that Scotland is a country and that we are a valued partner of this union and that we joined freely, has no one in the SNP or any of these other Pro-Indy parties got the balls to turn around and say if Scotland needs a section 30 order does England need one as well and if not why not. These are the sort of questions I hope are put to the Supreme court along with, why doesn’t Northern Ireland have to ask for a section 30 order, they are allowed a referendum every 7yrs if the majority wants one, so why has Scotland and its people become a prisoner in this union.
Basically, its alright for Scots to go out and vote for a political party and for an unlimited amount of time, but the constitutional question lies with one individual based in a foreign country, and that one person also decides what money we get how we spent it.
Just maybe the best thing to happen to Scotland would be the demise of the Scottish parliament and the act that goes with it.
One thing is certain during this farce at the Supreme court in Oct we’ll learn if we are being betrayed by the SG and the SNP, if this is the case then the UKG will try to expose it.
The worst thing that could have ever happened to Scotland is Nicola Sturgeon becoming leader of the SNP, she is the weakest link in the Indy movement.
When I hear people say use our energy to strike a deal with the UK, I think you really don’t know the enemy and what’s its capable of, if we become Independent it would have to mean Independence at every level including monarchy and trade etc and remember given the enemy a inch will end up being a mile in the end.
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Aye, unionists appen thair mou’s an deceit fa’s oot. But colonialism is a deception after all, as well as being “a disease of the mind” (Cesaire; Fanon).
Lets also remember that the main role of the colonizer is always “to make any prospect of independence seem impossible” for the colonized (Albert Memmi). And the colonizer does this “by debasing the colonized”, much as we see in most pro-union (i.e. pro-colonialism) responses, including this one.
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It has never ceased to amaze me, Alf, that so many people who migrate to other climes still would scupper what those left behind would decide for themselves or would happily influence negatively whatever the native population wants. It is a strange, malign and even rather evil motivation: I want what I want but you have no right to want what you want and I will ensure that you never get it. Even against their own interests, people will do this. Unionists and some rUK in Scotland are prime examples of the principle of eating your cake and having it, without regard to the humanity of others.
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Reblogged this on Ramblings of a now 60+ Female.
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” If the Westminster Parliament passed an Act banning abortion, it couldn’t be challenged in court. That’s because parliament is sovereign.”
This is incorrect. Numerous Acts of Parliament have been struck down by the Courts because they were unlawful. An Act banning abortion would end up in Court on human rights grounds and would probably be struck down, if not by the High or Supreme Court, in the ECHR. Parliamentary sovereignty is not as absolute as he suggests.
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Not quite Dave. If the Courts find an Act of the WM Parliament to be incompatible with the ECHR, then all they can do is make a “declaration of incompatibility”. That’s in effect a big political hint to the government to introduce corrective legislation. But the courts can’t themselves declare the Act null and void. That’s expressly declared in s.4(6)(a) of the Human Rights Act (https://www.legislation.gov.uk/ukpga/1998/42/section/4) and it’s because Parliament is sovereign. This is actually a very good example of the sovereignty of Parliament in action.
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In summary, then, the CoR declared the rule of law, not popular sovereignty; there’s no evidence for constitutional popular sovereignty in the body that passed the CoR or other regular conventions of estates; nor is there in acts salvo jure cujuslibet which, if anything, evidence parliamentary sovereignty; and Lord Cooper’s dictum is neutral at best.
I would say look at the most optimistic interpretation of lord coopers words, and a summary is not in anyway a conclusion.
There seems no evidence to the contrary, my meagre understanding of common law is that:
if it is not forbidden, it cannot be judged.
Which begs the question:
Is there in anything in any of of these acts that forbid secession.
I am all ears.
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and quite apart from that Paul the NIP violates Article 6 of the ToU. May knew this – that is why she said no British PM could ever agree to the current arrangement. We just need to stand up and grow a pair – or in other words – we need shot of Sturgeon and her nuSNP.
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“Is there in anything in any of of these acts that forbid secession” – just to be devil’s advocate, there’s s.1 of the Acts of Union which says “That the two Kingdoms of Scotland and England shall upon the first day of May next ensuing the date hereof, AND FOR EVER AFTER, [emphasis added] be united into one kingdom” and with there being no clause allowing either side to withdraw (like with the EU treaty).
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That was the intention, Neil. However, human rights and other international law principles would find that extremely onerous, I’d imagine. Furthermore, imagine of it had been a mutually respectful equal partnership instead of a growing imposition…
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“Anyway, the significance of the CoR is not that it enacted popular sovereignty, it’s that it enacted the rule of law. Well, it didn’t so much enact it (there’s no sentence in the CoR – I urge you again to read it – saying “From this day forth, the rule of law shall apply in the kingdom of Scotland …”) it more articulates that the rule of lawalready existed.”
That’s the only part any of you need read. It gives the game away. Neil doesn’t want to admit that the CoR applies to the future for a very obvious reason — applies to what? If it applies to Scotland in the future, as was clearly intended in the Treat of Union, in what respect does Scotland continue as a legally definable entity? Answers on a postcard.
On the independence side we don’t need to worry about that because we are happy to acknowledge that Scotland continued to exist after the Union. Neil can’t do that. If he admits that then he admits that the continuing Scotland is recognised and protected in law, and has recognised rights as an entity in law.
I’ll leave it to Neil to define what sort of entity Scotland is, if not a sovereign nation that simply entered into a glorified free trade agreement.
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You misunderstood my meaning. I didn’t mean the CoR doesn’t apply to the future – of course it was intended to apply in the future!
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Btw, the idea that the CoR “merely” related to matters of law is quite ridiculous to anyone with even a passing knowledge of 17th and 18th century European history.
Law was all important back then. It was through law that rights were established. Indeed, it would be impossible to distinguish between politics and law as defined in 17th Europe.
It’s on the basis of mere law that Scotland with its ‘claim of right’ continued to exist as a sovereign entity.
Try reading some John Locke or even Hobbes — I.e. “where there is no law, there is no commonwealth…”
Law was everything back then.
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It’s still pretty important today. Which is why we’re even having this conversation about the terms of an Act of Convention.
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The Claim of Right was debated in Westminster on the 6th of September 2016 which is relatively recent but we can look to another document which was published on the 27th November 2014 which stated (direct quote) “It is agreed that nothing in this report prevents Scotland becoming an Independent Country in the future should the people of Scotland so choose” whoever is PM in Westminster is not going to grant a Section 30 which in reality is only an agreement that both “COUNTRIES” will respect the result so all Westminster are really saying is that they would not respect the result of a referendum for Scottish Independence but there are other ways a Plebiscite Election looking like the preferred option for many of us. My other observation would be that as Gayle keeps telling us which I totally agree with is that Scotland is already an Independent Country in a treaty with another Country, Westminster only having authority over Scotland because they are allowed to.The problem being that the MPs and MSPs we elect to “do” their best for Scotland and its people simply “dont”.Independence is never given but has to be fought for.
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The document from the 27th November was the report from the Smith commission.
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“It is agreed that nothing in this report prevents Scotland becoming an Independent Country in the future should the people of Scotland so choose”
Even with my goldfish mind, I recall this.
Some do not.
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How many angels are dancing on the head of an English pin? Who cares. Leave that answer for the English. Scotland has a pin of its own.
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Firstly I give my respect to someone willing to produce a counter argument because that is the only way to prepare for real debate.
I will keep me response short as I expect a far more detailed response than I could manage to come along shortly.
Current Argument
“The United Kingdom (the UK) has three separate legal systems: one each for England and Wales, Scotland and Northern Ireland. This reflects its historical origins.
The constitution is unitary in that the Parliament in Westminster is the supreme law-making authority.” (Above case)
If we accept that then Scotland is trapped and it can never leave the Union. Westminster could pass an Act that equated to the Spanish Law on Catalonia.
Westminster could pass an Act to close Holyrood.
Westminster has a permanent 12:1 majority of MPs in Englands favour.
It doesn’t matter if it is argued that they would never do that. Accepting that Westminster is Supreme would be factual and final. The logical conclusion is that we do not live in a Union and in fact have been colonised.
Therefore it contradicts the People of Scotland being Sovereign.Which means that the Current Status Argument ignores the 1707 Act of Union.
In Summary England ignored the content of the 1707 Act and applied English Law dominance instead.
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Clootie: indeed. That is why the Treaty must always be our final redoubt. We must be prepared to demolish the Crawford and Boyle (complete subsumption) with a well-argued case in international law. It has been keeping the whole issue within the British legal systems that has been the reason we are going nowhere fast. The fact is that we now have a devolved parliament within British law, and that law cannot override international law. The Acts of Union are the children of the parent Treaty: they cannot rearrange the entire Union to suit one nation within that Union, albeit that is precisely what England as the UK has been doing.
So tired of saying over and over that the C&B subsumption argument will be revitalised because there is no basis for their usurpation of the UK other than that basic argument. Even if underground and away from publicity, the SG should have had the Treaty Articles under its belt long since, known every Article by heart, its effects and its efficacy for just such a day as this. The Treaty goes directly to the heart of the Union as no other constitutional tool does: it is the very source of the UK of GB itself. Westminster will be forced to bring out its big guns, to to speak, and try to destroy our half of that Treaty with a subsumption argument because that is the only way it can lay claim to ALL of Scotland’s assets and resources (and all those on English soil, even if Scotland has contributed to them as UK assets, and make our withdrawal from the Union a secessionist one (a breaking-away from the Mother territory) instead of a partnership one, where one nation (England as the UK) has overreached itself and disadvantage the other (Scotland).
In that situation, the Supreme Court would probably rule that the UK’s territorial integrity is of greater importance than Scotland’s desire for independence, as the Canadian Supreme Court did to Quebec. The precedent is there, which is why we must establish that the Treaty is both still extant and ‘sound’ in law. In this, I believe that Craig Murray, depart as I do from his GRA Reform enthusiasm, is right. Since 2013/14, I have taken the C&B Report as the front-line in any dispute between Scotland and rUK, although I do not believe it could withstand a properly built case against it. It could still hurt us, though, if international recognition was delayed. Why these crucial anomalies were not foreseen, I do not know.
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First thing I want to say is that I don’t consider myself to be a “Champion for the Union” in this context considering that, when I wrote to Iain offering my piece, I said:-
“Your challenge was for a “unionist” to write a counterpoint. As it happens, I don’t support indy but 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.”
Putting that another way, I would have written exactly the same article if I had been an indy supporter.
Having got that out the way, there are now 74 comments at the last count and I just can’t reply to all of them (although I started off thinking that I might be able to!) So here are a few responses to some of the themes emerging from the comments.
1. I had no intention of expressing views on what is “right” or “wrong” or what “should” or “should not” be the case. I was expressing my view of what things (rightly or wrongly) *are*. As I’ve already said, I was not “championing the Union”.
2. That being so, where I live is as immaterial as my views on indy.
3. What are we arguing about? I thought the point of the Salvo movement was that it had uncovered a constitutional and legal method of procuring Scotland’s independence even without a Westminster Act of Parliament (or s30 order), namely, that the CoR declared popular sovereignty which could overrule a parliament (Scottish or UK) and that the CoR was specifically preserved in the Treaty/Acts of Union leading to the consequence that, if popular sovereignty willed Scotland be independent, one could obtain a court order from the Court of Session (or maybe an international court?) declaring Scotland’s secession to have been legal and constitutional thus smoothing the way to international recognition and EU admission etc. compared with a “messier” UDI. That is all I was talking about – devil’s advocating that approach, if you like, pre-empting the points judges in any court would be likely to take in response to these arguments.
4. I was not talking about the likelihood of an indy Scotland having declared UDI being internationally recognised or admitted to the EU etc. I don’t know enough about international law and politics to comment on the legalities or practicalities of that.
5. Nor was I talking about the argument that Scotland could rescind (note the technical Scottish legal jargon, BTW) the Treaty of Union due to material breach (note again) of it by the UK because I don’t think that theory rests on the CoR, it rests on common or garden 21st century contract law being applied in an international context. (I hae ma doots whether this argument would cut any ice with the judiciary – mainly because I don’t think that Scotland and England being presently two countries in treaty relations with each other is the correct analysis – but I’m not going to express any more views on that.)
6. Are written constitutions (constitutional sovereignty) better than parliamentary sovereignty or vice versa? They’re a double edged sword and there are pro’s and con’s. On the plus side, they can act as a check on populism but on the negative side, they can get a bit fossilised in the past – look at the USA paralysed over gun control due constitutional provisions written 250 years ago about well regulated militias. I personally can’t decide which I think is better but here’s a thought for you – imagine the UK had a written constitution declaring the state to be indivisible and with a clause saying the constitution couldn’t be changed except with a 66% super-majority at a referendum. Now imagine support for indy was consistently polling at 55-60% coupled with a solid majority in Parliament in favour of Scotland’s right to choose. In that scenario, parliamentary sovereignty (which only requires a bare majority in parliament) would have delivered indy and it’s the constitution which is blocking it.
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Neil I will only respond by saying you answered a challenge for a Unionist to write explaining why the Claim of Right has no impact. You told me you opposed Independence. That makes you a Unionist. How you wrote the article in your own mind is fine but having expressed your opposition to Independence and having answered a challenge for a Unionist to step forward it’s a bit rich to expect me to promote your article as coming from a neutral. From what I can see you have been afforded respect and politeness and I hope that continues.
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Well I’ll respond Iain by saying not everything must necessarily be viewed through the lens of one’s standpoint on indy. It doesn’t help an understanding of the subject. Look at the comment by lorncal below, for example:-
“All of that is immaterial, Neil. All that is important is that a large number of Scots, arguably the majority of born-Scots, are sick and tired of the Union. They want out. Nothing you say can change that fundamental fact.”
No disrespect to him, it’s politely and respectfully written as you say. But I think he thinks I came here to tell him he shouldn’t be indy, to champion the cause of the Union (or parliamentary sovereignty or whatever). I have a view on that but that’s not why I came into this forum! I came here to grind an axe for a better understanding of the law in a historical context and that is all. The only toe I’m willing to dip into the pro’s and con’s of indy in this forum is to say if you want indy, fine, but I don’t think this Salvo/Claim of Right thing is going to get you anywhere.
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“imagine the UK had a written constitution declaring the state to be indivisible and with a clause saying the constitution couldn’t be changed except with a 66% super-majority at a referendum.”
It doesn’t, though, unless the Strawman Act has yet to appear on legislation dot gov.
The written constitution of the UK equates to the laws that are extant in each constituent part, which most certainly includes Claim of Right Act 1689 in its entirety. https://www.legislation.gov.uk/aosp/1689/28?view=extent
The people of Scotland devolve their power to the legislatures by consent, but power devolved is power retained.
The union with England remains in place unless and until the people of Scotland decide otherwise via petition to the monarch. We don’t need an Act of Parliament to organise a petition among ourselves, we already have the statutory right to do so, notwithstanding the union.
Conversely, the union with Scotland cannot be ended this way, as the people of England & Wales need permission from Parliament via legislation to even have a vote on the matter.
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All of that is immaterial, Neil. All that is important is that a large number of Scots, arguably the majority of born-Scots, are sick and tired of the Union. They want out. Nothing you say can change that fundamental fact. Scotland and the Scots perceive the Union to be grossly one-sided and unequal. We all understand that England has a massive population in comparison to ours. That is the point: why has our nation, why have our people diminished over the past 300+ years? We have the highest number of poor people per capita in the UK, the highest drug deaths, the highest emigration rates, the lowest number of connections with the Continent and elsewhere… It has been very telling in the Commonwealth Games, not so much the number of very talented Scottish athletes, but the spread of Scottish names (and I take on board the slavery aspect in connection with the Caribbean nations). Many of the athletes from Australia, Canada, New Zealand, etc. have Scottish names. It seems that we have spread our talents and our genes far and wide in countries that have made much of themselves following the disconnection from the Mother Ship of the UK of GB. It is time that we did this for ourselves. If we stay in the Union, we will disappear as a nation, as a people, while our country diminishes even more. These are the real reasons why we need to withdraw from the Union: we owe it to our own people to thrive; and we hope, too, that England, Wales and NI will thrive and that we will all remain close friends in a loose alliance, perhaps, along the lines of the Scandinavian loose alliance – all independent, all interdependent, in a shrinking world.
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lorncal – see my reply to Iain two up from here (beginning “Well I’ll respond …”)
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