Tuesday, 31 July 2012

This idiots guide to the Scottish constitution - part 1

The seminal concept of Scottish constitutional practice is the right of the people of Scotland to remove their sovereign.  It is a right which has been exercised on at least two famous historical occasions. The forced abdication of Mary, Queen of Scots, which brought about her flight to England and the removal of James the 7th from the Scottish crown based on evidence of James' attempts to usurp the Scottish people's sovereign power to the Scottish crown alone in line with his consideration that he was king by God's will and right.

The key passage of the Declaration of Arbroath is the one that contends that the King of Scotland and his successors are king by contract with the sovereign people and if the crown does not do what it says on the tin, it can be removed by the will of the people.

Originally the will of the people would have been the nobles of the day and it was a way of ensuring Bruce kept to his word. In the years after Bruce's blind siding of the nobles in 1328 at the Parliament of that year when the concept of equal representation and voice of the Nobles, Church and Burghs was introduced by Bruce - the 'Thrie Estaites' wielded a lot of power. Bruce had realised that with out the support of the burghs there would be no finance available to the crown, he needed the church to run the administration and the nobles to provide force majeur when required. So the will of the sovereign people of Scotland was expressed by the 'Thrie Estaites' from early on in the 14th century - with out this support the crown was helpless. Attempts were from time to time made by the crown to get round this restraint on their power but routinely it was blocked.

So from very early on in its history, following the Treaty of Northampton in 1329 which re-secured independence, Scotland could be seen to be what we would now refer to as a representative democracy and more democratic in its political construct than most other Kingdoms at this time.  There were no 'elections' as we would recognise them in the Burghs to decide who represented the Burgh at Parliament. Yet there was a very powerful check and balance, the Burgh mob, who would protest and riot if Parliament tried to enforce Acts and Laws that were not to the mob's liking or infringed what was considered to be their rights and liberties. Given that their lordships and the clergy lived cheek by jowl in the Burghs with the rest of the great unwashed they were not immune to the Burgh mobs'  hue and cry nor, especially in Edinburgh, could they avoid the 'hurley burley' when the Scottish Parliament was in session.

In my own view the position of the Crown in Scotland as one of acclaim rather than right reflects an older tradition of the Picts which the early Scots during their integration with the Picts in the 7th and 10th centuries kept. This was the concept of a rotating Kingship which ensured not one single family could take overall power. This only changed with the rule of Kenneth McAlpin where he took the title of 'Righ an Albanach' and established the idea of succession by primature. According to history he was opposed by the family which became through time the Clan McGregor who were due for 'buggins turn' after McAlpin and who have been whining about this ever since. So the idea of kingship by acclaim was not a revolutionary idea for Scots, it could be viewed as merely a return to what always had been.

With James the 7th during the 'Glorious Revolution' the 'Thrie Estaites' looked again at the contractual notion of Scottish kingship and offered the throne to William and Mary on the basis of the 1689 Claim of Right which was enacted into Scots Law as a statute and remains enacted on the legal books of the UK to this day. In Scottish constitutional terms Elizabeth, Queen of Scots, is on the throne because we the people say so and if we decide the House of Windsor is in breach of its contract they can be got shot of, just like James 7th before them. For example if the Queen ever did publicly say that she did not wish Scotland to be independent (as many of the Unionist persuasion like to claim) she would be acting contrary to the requirements of the 1689 Claim of Right as it is not within her power to decide on this issue nor use her position to influence the decision in any way. Elizabeth, Queen of Scots, must accede to the wishes of the sovereign Scottish people.

Constitutionally it can be argued that as Westminster is a parliamentary democracy where the Royal Sovereignty is held within that parliament, anything her parliament at Westminster decides in her sovereign name with respect to Scotland, which the sovereign people of Scotland oppose, could, in fact, cause her to be removed from her Scottish crown. This major constitutional hurdle for Westminster has always been in place.

The original fudge was the Scottish Grand Committee which was the Scottish people's sovereign voice at Westminster and in turn the Scottish Office whose statutory role is to ensure that no UK Law or Statute conflicts with or effects the core rights of the sovereign Scottish people. A role which in the last four decades it has serially failed to do starting with the Local Government Reorganisation Act (Scotland) of 1973. Fife County Council refused to dissolve itself and when the then Secretary of State for Scotland (Willie Hamilton MP, Labour) tried to enforce Fife's dissolution found himself face to face with this very conundrum when the Queen refused to sign the Order in Council dissolving Fife County Council, as she was upholding and protecting the people's historical rights by refusing. The expected legal challenge from the Secretary of State, in the Court of Session, never came and Fife County Council went on as before simply changing its name to Fife Region as its part of the local government reorganisation.

Some authorities go so far as arguing that the Local Government Reorganisation (Scotland) Act 1973 was unconstitutional. The reason they argue is that the rights, liberties and freedoms of the Scottish Royal Burghs were not Westminster's prerogative, in the form of the Scottish Secretary, to remove as they were individual contracts agreed between the Scottish crown and the burghs and these arrangements were protected under the articles of the 1707 Treaty of Union for all time. If this is true it further indicates why the Scottish crown was less than happy to sign for the demise of Fife and why the Secretary of State, of the day, did not engage in a legal challenge. To do so could well have seen the whole 1973 Act unravelling when it hit this particular legal and constitutional iceberg in the Court of Session.

Then there was Lord Cooper's judgement in McCormack vs the Lord Advocate (1953) where he stated that: " ..... the principle of unlimited sovereignty of parliament is a distinctly English principle and has no counterpoint in Scottish Constitutional Law". Equal importance must also be given to the Lord Advocate's own concession, " admitting the Parliament of Great Britain could not alter or repeal fundamental and essential conditions of the Acts of Union."

As the Acts of Union preserved rights of the Scottish people as being sovereign and is an essential part which can not be changed for all time. Lord Cooper in his 1953 judgement defined 'all time' in the Acts of Union meaning exactly that.

The 1998 Scotland Act had to tread a very difficult line between trying to hold onto as much power and control at Westminster while not raising the spectre of any attempt to usurp the constitutional reality of the people of Scotland being sovereign and the potential impact this could have on Westminster's grip on Scotland. Michael Forsyth clearly had read Lord Cooper's judgment and argued that the potential Scottish Parliament could pass a bill for independence and there would be nothing Westminster could do to stop it because Forsyth understood in Scottish constitutional law and practice the Scottish Parliament would be empowered by the sovereign Scottish people in a way Westminster never was beyond its quasi legal fudges. To ensure pro-Westminster parties would always hold the whip hand the dog's breakfast mix of FTP constituencies and PR lists was cobbled together - another fudge - but Westminster had to concede any bill with a direct impact on Scotland now had to receive the agreement of the Scottish Parliament before it could be enacted. The reality is the much vaunted sections 5 and 30 of the Scotland Act 1998 were more to pacify the MPs because in their scope and direction they were clearly in breach of the people of Scotland's sovereignty as they made claim to the same unlimited sovereignty which Lord Cooper had stated in 1953 had no counter part in Scotland.

Blair had now been shoehorned into signing up to a bill he did not want, detested and wished had failed. The lawyer in him looked at ways Westminster could enforce sections 5 and 30 of the Scotland Act and found there was no appropriate vehicle. To create one the UK Supreme Court was thought up and brought into being. The problem is again this court has no real legitimacy in Scots Law and in fact could be argued to have breached the Treaty of Union by its creation as it threatened the independence of Scots Law. Blair had a couple of tame Scottish Law Lords who agreed to sit on the Court and gave it a degree of assumed legality.

There have now been a number of skirmishes between Scots Criminal Law and the Supreme Court but the real crunch was when the first case under section 5 and 30 of the Scotland Act hit the Supreme Court's desk. All legal expert opinion seemed to say it would be a walk over for AXA et al vs The Scottish Parliament. Under section 5 &30 of the Scotland Act 1998 the Scottish Parliament's Bill on Asbestosis Plaques could not stand as it was clearly at odds with the Acts of the Parliament of Great Britain on the same subject. Much oil was burned in the UK media about the impending embarrassment for Scotland and the humbling of its pretendy parliament. Yet something strange happened, the UK Supreme Court found for the Scottish Parliament. Hidden away in their judgement was the statement that it had no power to set aside any bill, statute or act of the Parliament of Scotland where that bill expressed the clear will of the (sovereign) people of Scotland.

I put the word 'sovereign' in because to ignore the reality of the people of Scotland being sovereign is to ignore what judgement said to Westminster and its parliamentarians over sections 5 & 30 of the Scotland Act 1998 - "Ils c'est passeron pas". Forsyth was correct in the context of his original concern that the Scottish Parliament would become the expression of the people of Scotland's sovereignty and not Westminster - the UK Supreme Court has now said as much.

Blair may have escaped being the Prime Minister who over saw the end of the Union Treaty but he was right in understanding that the Scotland Act 1998 would become the thin end of the wedge. What he did not expect and I doubt any Westminster Parliamentarian expected was the collapse of the Labour vote in Scotland between 2006 and today and an SNP majority Government in Holyrood willing to flex the people of Scotland's sovereignty in the best interests of the people of Scotland.

To those who would argue the people of Scotland being sovereign is a myth, we have no power, it is a piece of ancient history I hope the few examples in this essay give you pause for thought. I would argue our 700 year old history of the people of Scotland's sovereignty is alive and well and continues to protect our fundamental rights as Scottish people to this day.


  1. Would very much like to publish this on Wings Over Scotland. How would you feel about that?

  2. Nae probs Rev Stu - the more the merrier. Working on part 2 for next week.