Tuesday, 7 August 2012

This idiot's guide to the Scottish Constitution .. part 2

The Scottish Affairs Committee have yet again climbed to the top of their dung heap and cried a referendum on Scottish Independence its illegal. The Telegraph quickly raises the hue and cry that the referendum can be blocked by Westminster as it is not legal, in Westminster's eyes, under section 5 & 30 of the 1998 Scotland Act. In part 1 of 'This Idiot's Guide ' I argued why, under Scots Law and the considerations of the UK Supreme Court, these sections have no basis in Scots law. I argued not from a long nebbed legal view but by simply returning to the first and founding principle of Scots Law: we, the people of Scotland, are sovereign. In a representative democracy such as Scotland we, the people, are all those registered on the current electoral roles of Scotland.

The Telegraph's author clearly does not understand the law of Scotland nor that Westminster's claims of 'unlimited sovereignty' have no equivalent in Scots Law, as sovereignty is limited by the will of the people of Scotland. the UK Supreme Court agreed this in AXA vs the Scottish Parliament, confirming Lord Cooper's opinion in the Court of Session on the matter in 1953.

What is actually illegal are the attempts by the Westminster Parliament to oppose the will of the sovereign people of Scotland on this issue as Westminster is in breach both the Treaty and Acts of Union by usurping the people of Scotland's sovereignty without authority, as the people of Scotland's sovereignty was protected for all time by the Acts and Treaty of Union. In Scots Law 'all time' was defined by the Court of Session in 1953 to mean exactly that: all time. Further the Lord Advocate conceded on the Westminster Government's behalf that Westminster has no powers to alter, repeal or remove any aspect of the Treaty or Acts.

If we look at the make up the Scottish Affairs Committee one of the first things that strikes me is the number of non Scottish constituency MP's which sit on this committee due to the fact the Tories only have one MP in Scotland and Mundell just can not be everywhere - if he is, in fact, anywhere at all. I invite you to look for yourself at the members of this committee who are suposed to be giving over sight to the Scottish Office to ensure it is carrying out its fundamental task of ensuring there is no conflict between Westminster legislation, the constraints of the Treaty of Union and its Acts and the independence of Scots Law. A function they clearly failed to do when rubber stamping sections 5 and 30 of the 1998 Scotland Act. Of course a direct legal challenge was never supposed to happen courtesy of Donald Dewar's PR fix but it has and as I argued in part 1, not with the outcome Dewar, Blair et al expected.

Under Scots Law and constitutional practice the SAC's assumption of Westminster's unlimited sovereignty over Scotland immediately puts the SAC in the position of assuming the people of Scotland's sovereignty and in breach of the current Treaty of Union which states the people of Scotland are sovereign. Given the SAC is not representative of the sovereign Scottish people, as it contains MP's representing English Constituencies, it is exceeding its remit in making claims such as the above as clearly the issues of the people's sovereignty have been incorrectly disregarded by SAC. I would argue under the current laws that it is the SAC who are acting illegally and undemocratically by trying to deny the people of Scotland their rights as a sovereign people to end the Treaty of Union - which is after all what the referendum is actually about.

It may well be that we can seek to recall all Scottish MP's involved in the SAC report, under Scots Law and constitutional practice (with respect to their usurption of sovereignty) as they have breached the fundamental right of the people of Scotland's sovereignty by assuming it for themself and Westminster. I propose that the Scottish constituency MP's who signed and agreed this report are in breach of the conditions of the 1689 Claim of Right because they are misrepresenting the Crown's limited sovereignty in Scotland by their actions, putting the Scottish Crown at direct risk of impeachment under the 1689 statute for exceeding its powers and suggest the MP's could be indicted for treason on this issue under Scots Law, a code of law that does not recognise MP's immunity and in Scots Law there is no such concept as unlimited sovereignty..

This is clearly a recipe for constitutional and political mayhem but no worse than the mess the current SAC incumbents are trying to make of the Scottish people's sovereign right to decide whether to withdraw from the Treaty of Union or not.

What I hope I have demonstrated in these two 'This Idiot's Guide' essays is that constitutional issues are simple, not complex and are all based on the fundamental right that we, the people of Scotland, are sovereign. As such any body making claim to use the sovereignty of the people of Scotland is limited in Scots Law and practice by the will of the people of Scotland, as a representative democracy, by their vote to their sovereign parliament at Holyrood in the first instance - the very important legal point Micheal Forsyth made in his out right opposition to any devolution bill for Scotland at Westminster in 1997 and upheld by the UK Supreme Court in AXA et al vs The Scottish Parliament when the court, in effect, set aside the provisions of section 5 & 30 of the 1998 Scotland Act as unenforceable.


  1. As the title says "Idiots Guide" but obviously the SAC are worse than idiots.

  2. Very interesting set of articles. Thank you