Tuesday, 12 February 2013

Lost in the Annex A

Reading what has been stated as ‘legal and constitutional exactitude’ in the UK Government’s statement on the legality of Scottish independence I was quickly attracted to two key fallacies Annex A paragraph 95 makes about the legal and constitutional status of the people of Scotland and its supposition Scotland ceased to exist at the time of Union..

The first is in the misconception that the crowns have somehow been ‘united’ and the second that Scotland has now been ‘subsumed’ by England in terms of sovereignty and legal status. These two assumptions are seriously flawed and usurp for the United Kingdom’s Parliament at Westminster  sovereignty, powers and authorities which has no constitutional nor legal basis under the 1706 Treaty of Union.

There never has been a 'Union of the Crowns'. Elizabeth rules in Scotland pursuant to the 1698 Claim of Right (Scotland) Act and is properly Elizabeth, Queen of Scots, whilst in Scotland. In McCormack vs the Lord Advocate (1953) the legal challenge to the Elizabeth the Second cipher was refused because, basically, there was no legitimate challenge to the Royal Titles Act 1953 in terms of the Articles of Union and the act itself as constituted was not ultra vires.

It is important to note that the seperation of the crowns was maintained as the night before the Westminster coronation Elizabeth was sworn in as 'Queen of Scots' by representatives of the 'Thrie Estaites' - the Lord Lyon, Moderator of the Church of Scotland and the Secretary of State for Scotland - as required by the 1689 Claim of Rights.

It is a while since I read what Lord Cooper had to say on this issue so have returned to the original judgement and two legal commentaries on Lord Cooper’s main point regarding the fundamental basis of the UK’s constitutional practice which only has legitimacy within the articles of the Treaty of Union of 1706, ratified in 1707 by acts of the two sovereign parliaments.

The fundamental point in law and constitutional practice made by Lord Cooper and conceded by the Lord Advocate was that the UK Parliament has no rights to alter, change or amend the Articles of the Treaty nor any laws pursuant of those Articles and this is the case for ‘all time’ which Lord Cooper defined as meaning just that.  The only bodies with the powers to alter, change or amend the Articles of Union are the sovereign parliaments of the two signatories of the Treaty. This legal and constitutional point was conceded on the UK Parliament’s behalf by the Lord Advocate. In other words the UK Parliament has to consider the impact of any law or act its passes on the sovereign status of the Scottish people as defined by the 1698 Claim of Right (Scotland) and the Articles of Union. Professor Walker states that:
“... (UK) Parliament commonly thought that the Articles were, or were part of, an English Act. Scottish representation in both Houses of the Westminster Parliament has always been heavily outnumbered, and for long, few were concerned with Scottish rights and wrongs.”

It is clear from both Professor Walker and Lord Cooper’s viewpoints the UK Parliament at Westminster has frequently been in breach of the Articles of Union, since 1707, with respect to its dealings with Scotland all based on the assumption that only English Law and constitutional practice were legitimate in the UK Parliament. In effect the UK Parliament began to view Scotland as just an ‘English colony’ within a few years of the Union. This is to some extent borne out by the use of an English parliamentary practice ‘the filibuster’ to ensure Lord Selkirk’s 1714 bill to dissolve the Union was talked out and never came to a vote.

Professor Walker highlights changes in the 1853 Universities (Scotland) Act which removed the requirement for Scottish University principles to be of the Scottish Presbyterian faith to hold office. As this requirement (to be a Scottish Presbyterian) was covered by the Articles of Union and to be for ‘all time’ so was out with the powers of the UK Parliament to amend or alter.  This change may well have been sensible but as Professor Cooper says: 

It is not clear whether this was done by Parliament deliberately in the knowledge of wrongdoing, or in the hope that nobody would cause an uproar, or by simple ignorance.

The problem is the law does not allow for ‘simple ignorance’ and it is no defence for the assumption of powers by a UK Westminster parliament it does not have. It is useful to remind ourselves just what the legal and constitutional point Lord Cooper actually made in 1953:

“The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law. It derives its origin from Coke and Blackstone, and was widely popularised during the nineteenth century by Bagehot and Dicey, the latter having stated the doctrine in its classic form in his Law of the Constitution. Considering that the Union legislation extinguished the Parliaments of Scotland and England and replaced them by a new Parliament, I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done.”

The contention made in the document released by Mr Cameron in his defence of the union is based on a legal in exactitude and a constitutional fallacy with the assumption made in Annex A section 50 regarding the primacy of English law and constitutional practice within the UK Parliament. Neither does it support the Secretary of State for Scotland’s contention of Scotland being a ‘region’ of England. Both these statements are in contempt of the Articles of Union and at odds with the political and cultural reality that Scotland is a separate nation and did not give up this status on joining in a union with England. All that was joined was the parliaments.

The failure of the ‘No campaign’ to address the parliamentary and constitutional future of a devolved Scotland if they are successful leaves another problem for the UK Parliament as any attempt to regain powers back from Holyrood flies in the face of legal opinion and constitutional practice in the UK,  as Lord Denning noted:

“We have all been brought up to believe that, in legal theory, one Parliament cannot bind another and that no Act is irreversible. But legal theory does not always march alongside political reality. Take the Statute of Westminster; 1931, which takes away the power of Parliament to legislate for the Dominions. Can any one imagine that Parliament could or would reverse that Statute? Take the Acts which have granted independence to the Dominions and territories overseas. Can anyone imagine that Parliament could or would reverse those laws and take away their independence? Most clearly not. Freedom once given cannot be taken away. Legal theory must give way to practical politics.”

The question has to be asked just what is the UK Parliament’s intention in the case of a no vote, just what is on offer because if there is serious consideration to rolling back Holyrood’s already established freedoms then the UK Parliament will be heading for a serious legal battle in which its own legal precedence and constitutional practices establish it has no leverage or right to do so.

This leaves the ‘No Campaign’ in a quandary, do they continue to make statements which are contrary to the conditions of the Articles of Union and leave themselves open to legal challenge of contempt of the Articles of Union and usurpation of Scottish sovereignty in the hopes that Scots will not notice? The legal case against the UK Parliament for exceeding their legitimate bounds has already been objectively established by Scottish legal and constitutional authorities over the centuries since 1707. At what point will the decision need to be made that UK Parliamentary politics cannot be trusted on the issue of the referendum on Scotland’s future so we must have recourse to international law to challenge the illegitimacy of their stated position?

I cannot believe Cameron and the ‘No campaign’ will wish to push things that far. Then again stupid is as stupid does.



  1. Another interesting difference between the legal opinion and the government ‘analysis’ to which it appends:

    The UK govt says that Scotland would be a new successor state.

    Not a new state, or a successor state, but a new successor state.

    As I understand it, a new state and a successor state are different.

    Its at 2.14.

    It gives references to a set of paragraphs in the legal opinion, but on checking there I do not see any reference to a new successor state as such. There are references to new state though. This is confusing – but I wonder if I’m not the only one that’s is confused.

    1. I consider the authors would not wish to risk their international and academic reputations by making things clear and have left deliberate 'wiggle room' to allow the UK Government to 'spin' their own view point.

      What is clear is in AXA et al vs The Scottish Parliament the UK Supreme Court respected the sovereignty of the Scottish Parliament within the conditions of the 1998 Scotland Act by stating they, 'could not rescind any act, statute or order of the Scottish Parliament which reflected the considered will of the Scottish people.' The important words skated over by 'constitutional experts' as 'irrelevant' is the term 'considered will of the Scottish people'. This term, 'considered will' has it roots in the 1689 Claim of Right (Scotland) as an assertion of the people of Scotland's sovereignty over crown and parliament in Scotland. The whole reason there has to be seperate UK Bills for Scotland comes down to the 1689 Claim of Right and the Articles of Union's preservation of the traditions of Scots law (and constitutional practice). This is the serious and important point Lord Cooper made in 1953 that simply because the UK Parliament chose to ignore this condition of the Articles of Union did not make it right or legal.

      Scots constitutional law regards the 'considered will of the people' of Scotland invioable and in the AXA et al judgement it is clear the UK Supreme Court agreed.

      Where is disagree with Lord Cooper is in the status of the sovereign parliaments of England and Scotland; both were merely temporarily suspended as a result of the Acts of Union in 1707. It is clear the authors of the Articles of Union foresaw a time when England and Scotland may wish to go their own seperate ways.

  2. We have a similar problem in Cornwall with the Duchy of Cornwall. The successive governments and the Duchy authority have tried to tell us all that the Duchy is just a simple collection of private estates most of which exist outside of the territory of Cornwall.

    When you actually look into the constitutional status of Cornwall and the Duchy however a totally different picture arises.

    The Duchy of Cornwall - A Very Peculiar Private Estate: http://www.scribd.com/doc/44178693/The-Duchy-of-Cornwall-A-Very-Peculiar-Private-Estate