GOOD TO SEE THE LEGAL PROFESSION ENGAGING IN THIS DEBATE.

This is a guest contribution from Ewan Kennedy. I asked Ewan for some brief details, he graduated from Glasgow University with a First in 1968, also studied at the Hague Academy of International Law, was in general practice in law for 42 years, he now lives in Argyll and involves himself mainly in environmental work.

I’m not an expert, but I’m not a newcomer to the issues. I first encountered Mr A V Dicey at university in 1964 and his views have troubled me ever since. I went on to take a degree in Jurisprudence, which involved looking at the concept of a legal system, then was involved for a dozen or so years as a part time academic. This period saw a great deal of debate about how the United Kingdom, with its lack of a written constitution and adherence to the idea of absolute sovereignty, could subsume itself to the rules of the emerging European Union. Forty years later we know the answer was a typical English solution of ignoring the issue while we all hugely benefited from membership, until a fraudulent referendum came along and the UK “recovered” the sovereignty it had never lost.

In its starkest form, Dicey’s sovereignty meant that the brute power of an absolute monarch had transferred effortlessly from the Crown to Westminster, where it remained. No promise, no undertaking given by the UK Parliament can ever bind a successor. It doesn’t matter whether it’s written in a Statute, e.g. section one of the Scotland Act, or the front page of the Daily Record. It’s worthless! None of the unique systems and institutions that most of us in Scotland value is remotely safe in the absence of a proper written constitution and there is no mechanism for introducing that within the United Kingdom. Fact.

Those of us who had studied Dicey were fully aware that the intervention of the Lord Advocate in the Supreme Court Brexit case was doomed to fail, because that section of a very recent Scotland Act seemingly entrenching the Scottish Parliament meant nothing. We watched in disgust as the Honourable Lord Keen spat out the hard legal facts to remind us Scots of our place.

While both Roddy Dunlop QC and Neil King suggest a more nuanced version of Dicey, I’m not sure that I agree. As Lord President Cooper said, in a section not quoted by Roddy:

“To put the matter in another way, it is of little avail to ask whether the Parliament of Great Britain “can” do this thing or that, without going on to inquire who can stop them if they do. Any person “can” repudiate his solemn engagement but he cannot normally do so with impunity. Only two answers have been suggested to this corollary to the main question. The first is the exceedingly cynical answer implied by Dicey (Law of the Constitution, (9th ed.) p. 82) in the statement that “it would be rash of the Imperial Parliament to abolish the Scotch law courts, and assimilate the law of Scotland to that of England. But no one can feel sure at what point Scottish resistance to such a change would become serious.” 

It looks as if Dicey didn’t soften his views on sovereignty to any significant extent. That he contemplated “Scottish resistance” means that the restraint on power would depend on some extra legal steps taken by the people. I suppose that the Poll Tax agitation is an example, as would, for example, a future move by Liz Truss to privatise our water, or perhaps to abolish Holyrood itself; such steps could be technically legal, but taken at risk of a revolution.

Against this background we are now offered the hope of rescue, led by Sara Salyers and supported by Dr Mark McNaught and others. While there’s a great deal in what they  say that I agree with, I’m afraid I can’t agree that the Claim of Right has legal validity. By this I mean simply whether or not the document would be recognised as valid by a court with jurisdiction to make a ruling. Before looking at this question let’s have a look at the history, with apologies for the extreme brevity.

As all contributors have recognised, the Claim of Right has to be placed in its historical context. It was made to support a foreign claimant while the then lawful king was in exile, in the same year as the Battle of Killiecrankie and the stirrings of the Jacobite movement, which distracted everyone from legal niceties for half a century.

After 1746 the Hanoverians and their Whig backers were firmly in control. The successors of those who had advanced the Claim of Right now cooperated with the centralising of power in London, to be joined soon after by most of the formerly Jacobite aristocrats who had survived to keep their heads and get their lands returned. The result we all know about: the rise of colonial Britain, which soon afterwards used the wealth acquired to transform itself into the World’s first industrial economy. 

The start of the Nineteenth Century saw the first movement towards modern democracy, with threats of popular revolt leading to the removal of the restrictions on Roman Catholics and limited extension of suffrage in reforms from 1829 to 1832. As has been pointed out, some of these highly popular measures breached the Claim of Right. 

Then came litigations such as the Auchterarder case, which concerned the power of patronage in the Church of Scotland and thus challenged its independence. The result was another defeat for the Treaty of Union, confirmed in the House of Lords. The case is significant, because it shows that Scottish lawyers and judges had no difficulty in submitting to London on a constitutional issue. 

That is still the situation today; the UK Supreme Court, as successor to the House of Lords sitting as a law court, is the only forum that could rule on the Claim of Right. I agree with Roddy and Neil that there’s no chance of a “Convention of the Estates” arising from the grave. 

This brings us back to the earlier point about the legal validity of the Claim of Right, which doesn’t depend on what we variously think, but on what the Supreme Court  would decide.

I believe that, as all four writers suggest, we should treat the historic documents as factual evidence from the past, but look to the present for a solution. Lord Cooper presciently recognised the possibility of an international solution. In another section of his opinion in MacCormick he says:

“The other answer was that nowadays there may be room for the invocation of an “advisory opinion” from the International Court of Justice. On these matters I express no view. This at least is plain, that there is neither precedent nor authority of any kind for the view that the domestic Courts of either Scotland or England have jurisdiction to determine whether a governmental act of the type here in controversy is or is not conform to the provisions of a Treaty, least of all when that Treaty is one under which both Scotland and England ceased to be independent states and merged their identity in an incorporating union. From the standpoint both of constitutional law and of international law the position appears to me to be unique, and I am constrained to hold that the action as laid is incompetent in respect that it has not been shown that the Court of Session has authority to entertain the issue sought to be raised.”

He has been echoed more recently by Professor Marc Weller, an extremely senior and highly respected international lawyer. As quoted in the Scotsman early in 2021 he said:

“This internal, constitutional entitlement is then reflected in the international law doctrine of constitutional self-determination.” And:

“According to the legal doctrine of uti possidetis, the right to self-determination through a referendum outside of the colonial context applies only to larger, constitutionally recognised units – in this instance Scotland.”

Where the principle of self-determination applies, he adds, it is “generally” implemented through a referendum.

“Hence, if it is clear that Scotland is entitled to opt for independence, and if the means to do so is through an act of will of its population, then it follows that the central government should not be able to obstruct the implementation of that right by refusing a referendum,” 

But while he stressed “Scotland can only succeed as a state within the EU if it can demonstrate that it has obtained the fullest consent from Westminster” over the potential move to become an independent nation, he also said:”Scotland can also appeal to the principle of self-determination in international law,” …

“This principle was recently affirmed once more by the International Court of Justice in the Chagos Islands advisory proceedings brought by the United Nations General Assembly in relation to the UK.” This concerned a colonial territory, though, and it remains unclear whether this principle applies outside that context.

But Prof Weller said Scotland’s right to leave the UK was “established informally in UK constitutional practice” after the 2014 referendum. “International law recognises such a constitutional grant of authority, whether made express in the constitution or implied in constitutional practice,” he states.”

This has to be taken very seriously.

The World Court, not to be confused with the European Court of Human Rights, exists specifically to adjudicate on international matters, usually disputes between states, but there’s no reason why it couldn’t rule on routes to independent statehood. Rulings have been given regarding colonies, as Sara has pointed out. Several of the judges belong to countries that were once colonies of former imperial states. 

States have to agree to submit to the decision of the World Court. This is usually on an ad hoc basis, but it seems that as the United Kingdom was a major supporter when the court was established it committed to agree in advance. Refusing to go along with a case would effectively involve withdrawal, which would confirm the UK’s pariah status. 

I appreciate that this route isn’t ideal, especially for those of us who despair of seeing independence in our lifetimes. Cases in the World Court go on for years, but then we’ve just seen years go by without any sign of Plan B. Just bringing the case would raise awareness of the issue world wide, where ultimately recognition would have to come from. And an application would not preclude other steps being taken in the meantime.

Only a total fantasist would suggest that there would be any advantage in a process that ended up in not being accepted by the international community, i.e. the major nation states that surround us and institutions such as the EU and the UN. Status as a nation is acquired when a significant number of these recognise the result, “recognition” being a legal process which requires the presence of certain features of “statehood”, such as a functioning government, a legal system and basic institutions. 

Scotland has all of these; as a nation that formerly enjoyed statehood our territory is already defined and the treaty by which we became part of a larger entity preserved all of our basic institutions. This is the true value of historic documents such as the Claim of Right.

MY COMMENTS

I welcome Ewan’s contribution even though I do not agree with all the content. He flags up the importance of going the international route and I think this is of considerable value. He confirms that Mr Dicey upon whose opinions Unionists seem to put such value on certainly lives up to his name as he is the font of many dicey opinions, in the true sense. Anyway I hope others in the legal profession will find the confidence to enter the debate. An abundance of information allows for great and knowledgeable debate which is one of the key purposes of this blog.

I am, as always

Yours for Scotland

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28 thoughts on “GOOD TO SEE THE LEGAL PROFESSION ENGAGING IN THIS DEBATE.

  1. Thought proving article. I loved the line “ the brute power of an absolute monarch had transferred effortlessly from the Crown to Westminster,” that summed it up so well.

    Liked by 13 people

  2. “This brings us back to the earlier point about the legal validity of the Claim of Right, which doesn’t depend on what we variously think, but on what the Supreme Court would decide.”

    Claim of Right Act 1689 remains extant in its entirety.

    The Court of Session is Scotland’s supreme civil court, not the so-called UK Supreme Court – the nobile officium can issue ANY ORDER as remedy, something legal commentators never mention in the constitutional debate for some reason.

    The people of Scotland retain sovereignty over the legislatures, the monarch & the justiciary.

    Liked by 14 people

  3. The English and its MP are using laws like (Henry VIII law) to imprison Wales, Scotland and Northern Island in this Union. I would have though a dialogue between Wales, Northern Island and Scotland was needed and for these nations to go directly to England and say are we free nations within this Union and if we aren’t what does England intend to do about it as we shouldn’t need to seek permission from England if our nations want to leave. Scotland has actually got allies in this union (the Celtic nations) so why isn’t the SNP and SG using them.
    I’ll use one of Sturgeon phrases, “a four-nation approach” use this to establish an agreement for all nations in this union to leave without the force of legal action. This should have been the first step after Theresa May said now is not the time. Why didn’t SG just simply ask these other nations to ask the UKG for a mechanism to be written into law in which they could leave the Union without legal action. If you don’t ask you don’t get and what harm would it have been to do that and what harm is it now to collectively go and ask. What this would do is show that if England isn’t prepared to act with good intent, then you have another three nations within this Union all imprisoned by the lager country, then Scotland would have this support to use in the international court and it would be far greater clout than not asking the above nations, and it would prevent these other nations from not being in the same position as Scotland is in, if they ever wanted their freedom.

    All this talk of leagl action should have been after dialogue with these our nations in the Union, we life in a modern world where in my opinion people have greater value than an act of parliament, after all England left the EU by just asking to leave so why can’t that same princible apply to these other nation in this union.

    Liked by 9 people

    1. People do have greater value than any act of parliament! Law is there for the good of people not the other way around! That said we have be careful about trying to make the law fit our agenda because we disenfranchise all those who are otherwise served fairly by that law. In this instance, however the act we are talking about (Bill of Rights conferring absolute sovereignty on parliament): 1. does not serve democratic rights or principles and 2. turns out to be legally dubious!

      Liked by 18 people

  4. The Claim of Right was reaffirmed in Westminster in 2018, by Blackford and the Snp, there were no objections towards it.
    Does that not give it legal validity for today?
    Part of the treaty of union states that any attempt to remove the claim of right or Scottish constitution means treaty is broken, it’s treason. It can’t be altered after by England.
    We can’t just assume English superiority and allow them to move the goalposts whenever they choose. There was a treaty.
    Best get the international ball rolling asap. Let’s get us independent asap, having a referendum at the moment when the entire media system and institutions are opposition to us would be an injustice. The game is rigged, we need a level playing field for a referendum.
    Believe in something and we can make it happen. I believe in Salvo and the claim of right and the sovereignty of the Scottish people. Our will is the political will we need to save ourselves. We have the power.

    Salvo.

    Liked by 15 people

    1. You’ve just caused me to wonder …

      The Claim of Right was the ‘sine qua non’ of either or both of the treaty and Acts of Union. So if it was affirmed by Westminster, does that not bind us more tightly into the union?

      Like

      1. As I understand it – Unfortunately we are still in the Union, even though the treaty has been broken many times. The Claim of Right is part of the foundation of that treaty as is the Scottish constitution, meaning the Scottish people are Sovereign and have the right to decide in the form of government of their choosing and can withdraw power when it’s being abused. ( via the convention of the estates or a modern national assembly) Removal of our CoR, constitution and sovereignty is not possible under the treaty, otherwise it’s no longer a treaty, and we are a colony.
        This is why we need a few hundred thousand signatures plus on liberation.scot ASAP to take the question to the international court. Are we in a treaty or are we a colony?
        Any argument that our CoR is ancient history and not important is a lie. A smokescreen to shut us up with condescending learned legal mumbo jumbo. Nobody opposed the CoR in 2018 or earlier because they knew the consequences if they did. It was an important act when SNP clarified that in 2018.
        There is an urgency to move forward with CoR and Liberation.scot because WM will try and reframe the treaty of union in their favour and steal our hopes of independence and our sovereignty. In this case proving they treat us as a colony. But that would not be right nor legal either. We need political will and belief in ourselves, for that we need better leadership than we have at present. We will have to look outside of traditional politics as we don’t have time to wait for elections or to build momentum against a hostile media. It’s a people’s liberation movement we need. Totally out-with traditional politics that unites the common good and interests of the Scottish people. New inventive thinking. Something we have been traditionally good at, let’s not forget who we are. Let’s invent our new Scotland and don’t take No for an answer.👍🏴󠁧󠁢󠁳󠁣󠁴󠁿

        Liked by 3 people

  5. In a sense, whether the Claim of Right has any legal validity is neither here nor there. Choosing how to be governed involves getting rid of the existing power structures, perhaps completely. That, of course, includes the set of rules we use to run our affairs, i.e. the law. It is, in effect, a collective decision to enact a revolution. That’s likely to be frowned upon by the current world order, however that order is currently changing and the door to independence will either be flung open or bolted shut depending on the outcome.

    Despite the niceties and vagaries of language there is only one real rule – can you take action and defend your position having done so. Everything else is a negotiation.

    Liked by 11 people

  6. A nice article, and opinion. However, this would all seem a trifle academic had the SNP’s successive Scotland majorities of supposedly ‘nationalist’ MPs and MSPs done what they were elected for and are now morally obliged to do, to declare the Treaty of Union violated and hence void and to withdraw Scotland from the union alliance.

    Our elected pro-independence Scottish national majorities are still in place and could end the union tomorrow if they wanted to. But they prefer to play a rather dangerous colonial ‘delay independence’ game protecting the imperial oppressor’s interests, which comes at the greatest possible cost and risk to the Scottish people, that of our nation itself and our sovereignty, which they have sold for worthless baubles, just like their predecessors did in 1707, and since.

    We should have no need to search for alternative routes to independence after (repeated!) majorities of nationalist representatives have been elected. The lawful way to end the union is and always has been, in the way it began, through a majority of Scotland’s national representatives.

    I would therefore urge Scotland’s MPs and MSPs to act, and act now. Find the courage!

    https://yoursforscotlandcom.wordpress.com/2021/08/29/determinants-of-independence-synopsis-and-strategies/

    “Withdrawal Strategy – A majority of Scotland’s national representatives may exercise and assert Scottish sovereignty by revoking the Treaty of Union, as it began. A democratically elected majority of Scotland’s national representatives should initiate Scotland’s withdrawal from the UK union as soon as possible. “

    Liked by 22 people

  7. Waking up to this after the last few days is kind of weird. We could told all the time “It must be legal” then when you find something legal its ” well what would if could enforce it ? “So basically we are like the Chagos Islands with rain. UNLESS OF COURSE YOU CAN DELEGITIMISE THEIR COURT. Let me ask a question.if your readers.

    If you took parliamentary sovereignty away from Westminster what would be left?

    What happens when you bring a 330 year old vampire into the glare of Scottish sunlight ?

    Let’s see shall we.

    Liked by 7 people

  8. the problem is the elected representatives are quite happy with the present situation we are years away from independence. there has been 8 years of stalling and despite all the other moves like the claim of right the main elected party is not doing anything towards independence.

    Liked by 8 people

  9. Not sure when/how we all caught nutmegged goalkeeper syndrome but seems we might have moved effortlessly from blaming Boris for all our rubbish to creating spurious issues to blame Liz T (such as for daring, /being nostalgic enough, to try* to stop our boys from transitioning to girls) to now blaming a lack of issue from Liz 1 for our mismanagement of the UK – and the subsequent capacity to watch in (bemused?) disgust as the Honourable Lord Keen spat out the hard legal facts (allegedly) to remind us Scots of our place,.. ie to be dragged out of EU against our will (but not necessarily the cunning plan?) whilst filling Hansard with pages about how we would not be – and defaming good friends as liars (or worse) in the process !

    eg If the claim of right has no legal validity** then the union of parliaments upon which it was built was Treason IN BOTH KINGDOMS and (significant) backdated reparations must be due to 1715 at the latest – including civil asset forfeiture from all practising/ retired lawyers who failed to notice, or noticed but continued to take the coin anyway, such a fundamentally flawed and egregious state at the heart of their profession earlier 😉

    *Paisley schooled, and probably too clever by half in consequence, its not impossible she’s simply ripping more proverbial with idea that such an offer needed to be made in the first place

    **Curiously, for all that, that part of the CoR that protects civil liberties has yet to be invoked to compensate for the Glencoe Massacre (1692)*** – implying that not only might the Scottish parliament have breached the CoR before partnering with the English one, it (the contemporaneous SG) must have been defacto too corrupt, incompetent or insane to make legal contract and the treaty will be void (to the extent it is not voluntary) in any event 😉

    ***Or the Assange abomination (2010 – present) ..

    Liked by 3 people

  10. Iain

    I enjoyed reading the contribution of Ewan Kennedy and would make the following comments:

    1. I quote Ewan:

    “This period [I guess the 1970s/1980s?]saw a great deal of debate about how the United Kingdom, with its lack of a written constitution and adherence to the idea of absolute sovereignty, could subsume itself to the rules of the emerging European Union. Forty years later we know the answer was a typical English solution of ignoring the issue while we all hugely benefited from membership, until a fraudulent referendum came along and the UK “recovered” the sovereignty it had never lost.”

    I am afraid that Ewan is so smitten by the false allure of the EU that he doesn’t even try to explain his position. The clash between UK sovereignty and the EU was very real especially after the Lisbon Treaty which introduced widespread qualified majority voting in the EU. Hundreds of EU statutes and regulations were steamrollered into our law without any effective scrutiny by Parliament at all. I am simply amazed that nationalists can fixate on our loss of sovereignty (very real or near total) with the TOU but simply ignore the devastating consequences of staying in the EU. This is rule from Berlin through Brussels. The EU referendum was not fraudulent and Ewen should explain himself. He should remember that polls showed some 38% of YES supporters voted for Brexit and Willie Ross and thousands of other YES supporters campaigned for LEAVE. We didn’t “hugely benefit” from membership at all. We simply joined a constitutional Titanic.

    Think of it, up until Brexit the UK was totally powerless to regulate its system of indirect taxation. Sovereignty?

    2. I quote Ewen again:

    “In its starkest form, Dicey’s sovereignty meant that the brute power of an absolute monarch had transferred effortlessly from the Crown to Westminster, where it remained. No promise, no undertaking given by the UK Parliament can ever bind a successor. It doesn’t matter whether it’s written in a Statute, e.g. section one of the Scotland Act, or the front page of the Daily Record. It’s worthless! None of the unique systems and institutions that most of us in Scotland value is remotely safe in the absence of a proper written constitution and there is no mechanism for introducing that within the United Kingdom. Fact.”

    Having a go at Dicey is a bit de rigeur in these parts. But what Ewen should remember is that the unwritten UK constitution is one of the best in the World in respecting both human rights and in respecting our national rights under the TOU. The Scottish church, Scottish court system, Scottish law, Scottish education and Scottish universities are pretty much where the Union Commissioners left them in 1707. This is not the “brute power of an absolute monarch”. And what were the Jacobites supporting precisely? We sing about them so fondly.

    3. I quote Ewen again:

    “Against this background we are now offered the hope of rescue, led by Sara Salyers and supported by Dr Mark McNaught and others. While there’s a great deal in what they say that I agree with, I’m afraid I can’t agree that the Claim of Right has legal validity. By this I mean simply whether or not the document would be recognised as valid by a court with jurisdiction to make a ruling”

    I am really surprised that Ewen doubts that the CoR has current validity. It is a pre-Union statute explicitly referred to in TOU Article XXV and nothing has happened to eliminate it. What we can debate is its legal and constitutional effect today? We have a politico-legal constitution and therefore historical constitutional texts can have different meanings as society changes. CoR can be properly interpreted today to mean that the Scottish church remains national, that Scotland have the right to throw out tyrants and that certain civil rights are guaranteed. It does not provide a Scottish veto over Westminster decisions as argued by Salvo.

    4. I agree with Ewen that Roddy was trying to get Lord Cooper out of a tight spot in MacCormick. He tried to argue that in that case Cooper was attacking the straw man of “absolute sovereignty”. Cooper was doing no such thing. He was instead talking out of a whole in his head. In 1707 there could only have been three possible basis sovereign doctrines of the new UK:(a) sovereignty of Queen in parliament (England); (b) an explained sovereignty of the people (which might or might not have been Scots law but lets assume so); or (c)something else. Let me give you a clue: the answer is (a), without a doubt.

    By the way the Cooper quote cited by Ewen should be digested by Salvo and their admirers. Cooper has no doubt about the existence of the incorporating union.

    5. Ewen then tries to conjure up a fictional and hopeless international route to Scottish independence.
    It is amazing to me that he fails to discuss the repeated stated opinion of every British Prime Minister since at least Wilson that Scotland has a right to secede from the Union. This was the basis of the 2014 referendum and the activity of the SNP from its foundation until today. Why not embrace this Union doctrine which nearly delivered independence in 2014? Instead he runs with will-o’the wisp.

    William

    Like

  11. Well , the candle of hope aka Claim of Right flares and gutters by turns . Salvo and SSRG are keeping the flame alive , the debate is fascinating and civilised. It’s all very reminiscent of the heightened demand for Home Rule reported in the Scottish newspapers in the 1870/90/ 1900 .Then the demand was for substantial performance of the “contract” of union , Strange how so much of that high level of political narrative has been lost , swept aside with the stoor of wars. The home rulers were for a union fully implemented and had a well developed critique of Westminster’s systematic erosion of Scotland’s proper place in that union . Please follow up RSH.Com for extensive coverage of that debate

    Liked by 1 person

  12. I think Ewen is saying it comes down to this:
    1. Revolution cannot be ignored by any government. what happens next is always an unknown.
    2. The 2014 independence referendum established our ‘Article 50’ clause for the Union. The only question is whether Westminster has the right to defy the clearly expressed will of the Scottish people by denying recognition of an independence referendum, currently embodied in an s30 order. It seems to me that so far Westminster has claimed there is no democratic mandate for an s30 order, applying different criteria to Scottish democracy that the one they applied to Brexit. This is clearly fraudulent democracy. Now we take a further step backwards: Truss will outright refuse, democratic mandate or no democratic mandate. So on this path we need to ask ourselves why Westminster has not previously taken this line. I think it is because this approach admits this is not a voluntary union and is therefore subject to international law. We need the courage to act on this. That means we act without the nuSNP. Thank you Salvo and the SSRG!

    Liked by 9 people

  13. The following is to take nothing away from Ewan’s learned and welcome contribution:

    It appears to me that we allow ourselves to be chained and constrained by a legal profession wed to the theory of legal-positivism (i.e./eg. that sovereign power is based on the will of parliament as the holder of sovereign power in the state). It further appears to me that only the most unworldly optimist would dare maintain the belief that Scottish decolonisation lies at the end of any road that forces us to traverse British judicial territory wherein the notion of parliamentary sovereignty holds sway. Given that we have no recourse to adjudication regarding the notion of parliamentary-sovereignty, our only option is to withdraw from the whole time wasting, energy sapping and, anyway, unacceptable parliamentary-sovereignty debate and concentrate our efforts solely towards the elevation of the democratic convention that speaks to the sovereignty of the Scottish people.

    Liked by 4 people

  14. My personal opinion is that as the so called Supreme Court, didn’t exist when both Treaties of Union were enacted, then it should be unable to make any decision against Scotland. This would be regardless of any further legislation passed at Westminster to enable that legal process. Also as both Scotland and England retained their own Law’s with each deemed superior within each Nation, then neither Nation has been subsumed into a single entity, again regardless of further legislation, which if passed at Westminster should automatically render the Treaty invalid.

    Liked by 3 people

  15. To me the argument presented here is wrongheaded, a series of disparate ideas and examples stitched together to look sympathetic to independence but which only serve to confine us within a Unionist contextual straightjacket. The argument for independence and self-determination stems from first principles, not a posteriori thinking, and as I mentioned in a previous comment, the law flows from the truth, the truth does not necessarily flow from the law.

    Just to comment on a few points:

    “While there’s a great deal in what they say that I agree with, I’m afraid I can’t agree that the Claim of Right has legal validity.”

    The Claim of Right has no more or less legal validity than the Treaty of Union.

    “That is still the situation today; the UK Supreme Court, as successor to the House of Lords sitting as a law court, is the only forum that could rule on the Claim of Right.”

    That is making the assumption that the UK Supreme Court is a legal entity which it is not under the Treaty of Union. English law has no jurisdiction in Scotland, that is to say it has no legal validity, which is why the Treaty of Union had to maintain the two separate legal systems. Independence is entirely within the gift of Scots law (i.e. legal) because the law of a nation cannot be foreign unto itself unless it has been conquered or truly “incorporated” into another nation, as was the case with Wales for example. Ipso facto, Scotland has a fundamental right to self-determination with the Claim of Right acting as a safeguard to that right. That is why there is such a vehement attack being mounted on Scots law and recourse to justice, aided and abetted by Sturgeon, such as the GRA, juryless trials, the persecution of pro-independence supporters, malicious prosecutions and the removal of the not proven verdict. (The two verdicts should be returned to proven and not proven but I digress!) Westminster is waging a war of jurisprudence to enforce the Anglicisation of Scots law and eventually subsume it. Because as long as Scots law exists, then we have the legal right to self-determination. Once that is removed then the only option remaining is the bullet. The situation could not be more serious; once we lose the independence of Scots law (which ironically is enshrined within the Treaty of Union) our right to peaceful and legal self-determination is no more and Westminster will then be free to subjugate us with open force and meet any claims to independence with violent suppression just as they did in Ireland and countless other nations around the world. It would also tragically and cataclysmically open the door to partition which, as we know from history, Westminster would not fail to stoop to.

    “Only a total fantasist would suggest that there would be any advantage in a process that ended up in not being accepted by the international community.”

    The author here makes the same mistake as Roddy Dunlop, presenting opinion as legal argument. The international community has no option but to respect the rule of (Scots) law even if Westminster does not. If Scotland leads the world will have to follow.

    The argument comes down to one of perspective. From the point of view of English law (and Westminster), Scottish independence can be argued as unlawful or illegal, but English law has no jurisdiction over Scotland. From a Scottish point of view it can in no way be argued that independence is illegal under Scots law or our constitutional history (of which the Claim of Right forms a crucial part). English law can only be imposed on Scotland with Westminster acting openly as an English government, foreign and hostile to Scotland (not acting as a union of parliaments representing joint sovereignty but as an English parliament enforcing English parliamentary sovereignty on Scotland), and self-determination can only be considered illegal if Scotland is ever allowed to become subject to English law. And that can only happen with the complicity of Sturgeon and her SNP MPs.

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  16. If the people want out then the people will out. That is the natural law. Denying people’s will is an act of force and that I would suggest is never a policy that lasts.

    These deep constitutional debates are therefore for the many something that they quite frankly do not want to engage in. Yes they are interesting, but at the end of it, as England has shown over the centuries you take what you want by raw brute power and the guise of legality. And sadly you reverse it by conduct not dissimilar.

    Not maybe the best way forward but the way that so many of England’s colonial possessions from the USA to India to Malaya to Kenya to Ireland have removed the colonial yolk, and this is where legal argument breaks down.

    As the old guard unionists in Northern Ireland used to say, Ulster is Right, and Ulster will Fight. No different from Boris Johnson seeking to repudiate the Northern Ireland Protocol or the Good Friday Agreement.

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  17. Since the creation of the S.N.P. and the Universal Franchise in the 20th century, it has been understood and accepted by all Westminster leaders that Scotland had the right to exercise its democratic and sovereign option to vote for Independence by a majority of SEATS in the Scottish constituencies.

    The Devolved powers distraction, with its tower of Babel, soon to be one of babble, was the trojan horse of Holyrood. A labour inspired vanity project owned by the SNP then followed up by the catastrophic mistake of committing to a Referendum. One that effectively reduced our sovereignty to the toss of a loaded dice. ‘We’ allowed our unchallenged sovereignty to be manipulated by a corrupt colonial overlord. We saw it in 1979 and learned nothing.

    Now, we are becalmed with Sovereignty seeking, scrabbling around in the miasma of jurisprudence junk. We have in our grasp the democratic mandates to declare the Union over. But the traitors who masquerade as leaders of the ‘national’ party play games with their masters lie outright to their bewitched and desperate supporters.

    The UK polity is an unwritten ragbag of ‘tradition’ and imperial power disguised as a democracy. Hobbes, the English theorist knew best when he referred to ‘Clubs are trumps’. Well Westminster has been clubbing not only us, but most of the world for centuries. But, the internation opinion, indeed the world recognises the fiction that is Westminster, and that polity, bogus as it is, that adheres to the majority seat principle. If we elect representatives who will act on this, then the whole edifice collapses.

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  18. Sometimes opinion is in fact legal argument .
    Interpretation is a large part of legal process and decision.
    Ultimately appeals side with the majority view of the members of the appeals panel which in the case of the U.K. Supreme Court could be a disadvantage to Scotland given that a majority of the appeals panel are English i believe only two of the eleven are Scottish , its a bit like allowing the whole of the U.K. to have a vote in the Scottish independence referendum

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    1. I agree with your second sentence above, and all of what you say about the UK Supreme Court, but interpretation is not the same as opinion. Opinion is not substantiated by positive knowledge or proof (even if it is advanced with confidence) whereas interpretation refers to a source (a particular text, for example) which can be substantiated by reference. For instance, an interpretation of stories from the Bible is different from an opinion on the veracity of those stories.

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  19. I’d like to thank everyone who took the trouble to comment. There was a lot I agree with and quite a bit for further reflection. In due course I’ll write a bit more on the Claim of Right; just now I’ll just say that my essay was confined strictly to its legal status and not intended to diminish its importance as part of our constitutional history.

    In this regard it’s interesting to read the comment from Alex Salmond on Twitter, sentiments with which I entirely agree:

    “Attending #AccessionCouncil this morning, where a slimmed down Privy Council of 200 meets to proclaim King Charles III. The longest serving PCs now are the mid 70s intake of Roy Hattersley & Bill Rodgers, but they joined more than 20 years after the last Accession Council.
    Thus no one alive has ever attended an Accession Council and Queen Elizabeth was the last survivor of the meeting of 8th February 1952. Today’s agenda doesn’t allow for discussion or questions for the job applicant so we can safely assume that Charles will be so proclaimed.
    However, the meeting is not entirely free from principles of contractual government or monarchy. In Part II of the Council, the new King is required to swear an oath to uphold the separation of church and state in Scotland, in accordance with the Claim of Right.
    The Claim of Right of 1689 is not the bee’s knees in many quarters because of its 17th century anti-Catholicism, and very understandably so. But the idea of a contractual monarchy was first introduced into Scottish thought in the 14th century appeals to the Avignon Papacy.
    And the high principles of equality in the American Declaration of Independence, co-existed with the evil of slavery for the best part of a century – but these principles of equality were still well worth saying.
    The Claim of Right is properly seen as part of a golden thread of Scottish constitutional thought stretching from the Arbroath Declaration to the present day, that government is contractual and the people, or Community of the Realm, are ultimately sovereign.
    In any event, it can hardly be argued that the Claim of Right is merely a historical curiosity, when one of the first acts of the new King is to be required to swear an oath to uphold it! This is the sort of history which can shape the future.”

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