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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