Gavin Anderson et al: The Independence Referendum, Legality and the Contested Constitution: Widening the Debate

A response:

I understood that in McCormack vs the Lord Advocate (1953) the Lord Advocate conceded the legal and constitutional point that the people of Scotland remain sovereign and that the taking up of solely the norms of a parliamentary democracy was at odds with the purpose of the 1707 Treaty of Union and the constitutional reality that Scotland is a representative democracy.

As the 1689 Claim of Right remains law and Lord Cooper stated that the independence of Scots Law was protected for all time by the 1707 Treaty of Union, the assertion of the sovereignty of the people of Scotland is at odds with the UK constitutional view as the people of Scotland’s sovereignty has never been suceded or lent in any lawful manner to the UK Parliament at Westminster. The Scottish Grand Committee was, after all, a fudge to get round this inconvenience in law and constitutional practice – much as has Mr Blair’s back of a fag packet, Supreme Court.

In the recent judgement by the Supreme Court in the case of AXA and others vs the Scottish Government one of the reasons the case was thrown out was because the Act of the Scottish Parliament contested by Axa and others reflected the will of the people of Scotland as expressed by the Scottish Parliament. The judges avoided the use of the term ‘the sovereign people of Scotland’ explicitly but if they were not respecting the will of the sovereign people of Scotland why come to this decision?

That then brings me onto the elephant in the room – the Scottish Parliament and the 1998 Scotland Act.

In July 1999 the temporarily suspended session of the Scottish Parliament of March 1707 was resumed. This was not contested by Westminster in any shape or manner. Given the parliament of March 1707 held on behalf of the sovereign people of Scotland the right to represent their sovereignty under Scottish constitutional law and practice then in Scots Law the resumption of that parliamentary session in July 1999 must mean the people of Scotland’s sovereignty once again lies in the Scottish Parliament. A legal and constitutional reality the Supreme Court gave the nod to in AXA and Others vs the Scottish Government. In other words the Scottish Parliament represents the sovereign will of the people of Scotland. This being the reality how can either section 5 or 30 of the 1999 Scotland Act be enforcable as the UK parliament at Westminster is laying claims and powers over Scottish sovereignty they neither have claim over nor right to.

Further it could be argued that any Scottish official or politician who does agree to give over the people of Scotland’s sovereignty to Westminster is acting treasonably in the eyes of Scots Law and constitutional practice as they will be in breach of the provisions of the Declaration of Arbroath entrenched in Scots Law by the parliament of 1328, reasserted in the 1689 Claim of Right with respect to the people of Scotland being sovereign.

All this before considering the right to self determination which is core to the UN Treaty of Human Rights of which the UK is a signator, the Helsinki Accord and the Treaty of Vienna all which drive a coach and horses through the position taken by the UK Parliament at Westminster’s legal position.