Sunday, 2 February 2014

Wee things that matter ...

In December I sought to distill down into around 2,000 words what my research into the actual constitutional position of Scotland within the current Union is, along with the legal and constitutional evidence to support my contention. As well as my contention the UK Parliament consistently ignores the Treaty of Union's requirements on the matter of 'considered will' So far it has attracted nearly 1,000 unique page hits from Japan to Alaska and south to Brazil.

This time I am looking to explore just what a 'Yes vote means in terms of Scottish sovereignty and why the idea there will be a constitutional body called rUK which will be the same as now is both a legal and constitutional misnomer.

Jim Sillars, the political side shifter of Churchillian standing, said something very important, so important that most of the Unionist media ignored it and it was this; " On the 18th of September 2014, the people of Scotland will be sovereign for that day."

A strange statement at first glance. Yet what Jim was saying is on the 18th of September the people of Scotland will be expressing their considered will without any interference from Westminster or any other external body. At first glance this appears a 'wee thing' but re read what Jim Sillar's said and my explanation and you suddenly understand where sovereign power really lies in Scotland - in the people - because 'the considered will is paramount' which can only mean the people are sovereign. This is a very different situation to the UK Parliament claims of 'parliamentary sovereignty' which basically means you can vote for an MP to be elected but the MP can do what they want once elected because parliament and not the people, is sovereign because of the solely English constitutional concept of the English Crown in parliament.

A quick aside: too many folk have been taken in with the absolute blethers of a 'Union of the Crowns'. This never happened. James the 6th and 1st asked his parliaments in Scotland and England to consider a joint Act to allow this to happen and both parliaments told him where he could stuff it. The UK consists of two sovereign realms, the Kingdom of Scotland and the Kingdom of England and Wales. If there had been a 'Union of the Crowns' then why did the parliaments of Scotland and England seperately  address the issue of removing James 7th and 2nd by the 'Claim of Right 1689' in Scotland giving him the boot (with no redress) and the English Parliament buying his abdication signature?

The more interesting questions are:
  1. What happens to the people of Scotland's sovereignty exercised on the 18th of September on a Yes vote being announced on the 19th of September 2014?  
  2. Does it simply melt away until March 2016 when the UK is officially dissolved?
 Here we need to have a quick recap of what Lord Cooper stated in McCormack vs the Lord Advocate in 1953:
  1. The Treaty of Union preserved the independence of Scots Law and constitutional practice for ‘all time’
  2. ‘All time’ meant exactly that
  3. The UK Parliament could have no say in any negotiations on any revisions to the Treaty of Union, this could only be negotiated between the sovereign parliaments of Scotland and England
  4. The considered will of the people of Scotland was always paramount 
So we have said 'Yes', expressed our considered will and as a sovereign people lend our sovereignty in the first instance to the Scottish Parliament at Holyrood. In legal and constitutional terms the Scottish Parliament is then sovereign as of the 19th of September 2014. To undertake negotiations to divide the now ex-UK Union's assets and liabilities the sovereign parliament of England and Wales will have to be re-called from its temporary suspension because the UK Parliament has no legal or constitutional place in negotiations concerning its own demise - only the two original signature parliaments have this power.

It follows pretty quickly after a 'yes' on the 19th of September you will have two sovereign parliaments ( Scotland / England and Wales) representing their people and their individual realms affairs of state and interests, so just what role can the UK Parliament have left as it is no longer sovereign?

The UK Treasury has as good as said it ceases to have any power on a 'Yes vote' if you stop and really think about the UK Treasury announcement, "The UK Treasury can only guarantee UK Government bonds and loans issued prior to a Yes vote on the 18th of September 2014." Again it is unsurprising the Unionist media did not look more carefully at this statement because of its implicit indication that the UK Union ends on a 'yes' vote in Scotland and the last thing the Better Together Campaign wants are clear lines in the sand they are unable to deny.

The reality is the UK Parliament will remain but merely as an administrative structure undertaking day to day running of the UK while powers are repatriated back to the two sovereign parliaments. The UK Parliament in the period from September 2014 to March 2016 will only be able to act on the authority of the two original sovereign parliaments. I would suggest amongst the first powers to be repatriated will be those of taxation and government finance - something the UK Treasury Statement, above, clearly indicates. For the international money market's sake that was why
the Bank of England Governor's (Mr Carney) visit on behalf of  to Scotland was important for Sterling and his assurance that if a sterling currency union was agreed during the negotiations, the Bank of England would facilitate the process. A BBC journalist attempt to get Mr Carney to explain the 'difficulties' he was supposed to have ascribed to a Sterling currency union in his speech, to which Mr Carney replied, "No, No I didn't (state there would be 'difficulties')."

What we do not know is the nature of the private meeting between Mr Carney, Mr Salmond and Mr Swinney on Scotland staying in Sterling and its outcome but one might guess from the screams of uncontrolled hatred and hysteria from the Unionist media - potentially, it must have been very positive.

In answer to the two questions I posed in the begining:

  1. What happens to the people of Scotland's sovereignty exercised on the 18th of September on a Yes vote being announced on the 19th of September 2014?  
  2. Does it simply melt away until March 2016 when the UK is officially dissolved?
The answers would be:
  1. On a 'Yes vote' sovereignty remains with the people of Scotland and is lent to the Parliament at Holyrood and the Scottish Crown for the period of the current parliament (May 2016) and until the current crowned head dies (as agreed with the current monarch under the terms of the Claim of Right 1689)
  2. It is the UK Parliament which will lose its sovereignty, legal and constitutional powers which revert to the two original parliaments (Scotland / England and Wales) who were  signatories of the 1706 Treaty of Union
  3. By May 2015 a UK Parliament, as currently sitting, will have no further role to play in any 'governance' within the two realms and the remit of the two separate sovereign parliaments on remaining UK business will be undertaken by civil servants by mutual agreement. Hence the UK Parliament will be in effect prorogued - sine die.
From this you may begin to see the 'wee thing' Mr Sillar's stated on sovereignty has massive repercussions for the UK Parliament at Westminster, repercussions which will come faster than many current Unionist media commentators would wish or care to admit.

I predict the Westminster gravy train for Scots Lords and MP's hits the buffers in May 2015 when the first parliament for England and Wales since 1707 is elected.

8/02/14 - Ammendment: Ed Balls has stated he hopes to be rUK Chancellor in May 2015


  1. Very good post, as always, for that Thank You.

    Do you really think that the UK parliament will really "roll over" and play dead as of the 19th September 2014?
    Would they not instead try to convince everyone that until March 24th 2016 , that they are the ruling body, and it is by their will alone that Scotland is permitted to continue with Scotland's chosen course?

  2. Anthony - How quickly do you think the Tories will want Labour undermined on a 'yes result' by kicking out the Scotch MP's who failed them?

    The best way of doing that is by resuming the England and Wales Parliament at Westminster as quickly as possible in which Scottish UK MP's and Scottish Lords can have no role.

    I have thought long and hard about this and it makes sense because Cameron wants to be able to take full control as soon as possible. The booting of Scottish MP's means he can ignore the remaining Libdem MPs because he will not need them as he will have an effective Tory majority in the English and Welsh sovereign parliament.

    Sentiment for the UK Parliament will melt like snow off a dyke on the announcement of a Yes vote. When Cameron concedes on the Sterling currency union he will have to have something to throw rabid right wingers in his own party and UKIP after all Osbourne's shit stirring - booting Scottish MPs out of Westminster will fit the bill nicely.

    You need to think like your enemy to understand them.

  3. Peter,I am not clear about how Scots Law fits in with these processes.
    In order for Westminster legislation to be included into Scots Law,does Holyrood have to agree and pass the same legislation?
    Can Holyrood pass a bill,without Westminster agreement,which then becomes Scots law? (pretty sure at present they can't because Westminster claims reserved powers and would presumably use Blair's Supreme Court to strike it down).
    I am still trying to work out the mechanics of how full legislative power is returned to Holyrood after the Yes vote.
    Does a Yes vote mean that Holyrood automatically assumes this reponsibilty?
    What happens if Westminster refuses to agree to this??
    Blood on the streets?

  4. Bringiton: You need to think about why Straw's rushed bill at Westminster to get Megrahi transferred out of a Scottish Jail, as part of Blair's deal with Gaddafi ,failed at the first hurdle. The Scottish Courts through out the application under Straw's Bill because it had no lawful jurisdiction in Scotland as Scots Law already had a prisoner transfer act in line with EU stipulations. The two legal systems are separate, remain separate and have been for the whole of the period of the Union. Laws in Scotland are now made at Holyrood as the current stramash over corroboration demonstrates.

    The UK Supreme Court was originally designed to ensure there was an English Law bias until the legal Lords, appointed by Derrry Irvine to do President Blair's bidding, pointed out that with out Scottish legal Lords, they would have no jurisdiction on Scottish legal matters. The one attempt to strike down an Act, Bill or Statute of the Scottish Parliament in the UK Supreme Court was thrown out (AXA et al vs the Scottish Parliament et al) because the Act, in question, of the Scottish Parliament reflected the considered will of the people of Scotland - which is paramount.

    So basically Westminster can not take any powers given to Holyrood, back, because they will be open to challenge in the UK Supreme Court if it is not the considered will so to do. The stated considered will is for more powers at Holyrood by the Scots electorate, not less.

    In my personal view the issue of sovereignty has been already been conceded to the people of Scotland by the resumption of the session of the sovereign Scottish Parliament, temporarily suspended in March 1707, in 1999. The UK Supreme Court would appear to agree in the judgement in AXA et al coupled with the actual release of Megrahi both which holed Westminster constituional claims below the water line.

    The current argument is about why does Westminster have any remaining say when it is acting against the considered will of the people of Scotland on the very dubious claim of the constitutional basis of the English Crown in Parliament says it can. The defence of this constitutional position is based on the erroneous claim of a 'Union of the Crowns' which never ever occurred. A claim which Lord Cooper stated in 1953 has no basis in Scots Law and constitutional practice.

    The Scottish Parliament has full legislative powers except over matters reserved by Westminster under the 1998 Scotland Act. A Yes vote rips up the Scotland Act 1999 along with the 1706 Treaty of Union - Westminster as a UK Parliament has no constitutional and legal legitimacy after the Yes vote is announced at that point Murphy, Alexander (either) Curran and their Lordships become powerless as the UK Parliament melts away 'lik snaw aff a dyke' as only the parliaments at Westminster (England and Wales) and Holyrood will be sovereign.

    It is hard to get your head round just how quickly power will shift from the UK Parliament - leaving it as a cipher - it has taken me two years of research to understand just what a dramatic shift of power a Yes vote brings but that is what will happen because the UK Parliament has no legal or constitutional role to play in its own demise.

  5. Thanks Peter...a lot clearer now.

  6. Peter, I am afraid that I cannot agree with the idea that you are putting forward. A Yes vote in the referendum will not 'rip up' either the Treaty of Union or the Scotland Act 1998; it will put in motion negotiations which should lead to an end of the Act of Union in March 2016. In the meantime, Scotland will still be in the UK, and Westminster will still be the UK Parliament. The Treaty of Union is, in modern terms, a bilateral international treaty which could be ended by either party giving suitable notice, or by mutual agreement, but it is also incorporated into both Scottish and English law by the Acts of Union, so that ending it cleanly will require legislation to be passed. (Referring to something in one of your earlier posts, there is probably no great problem about there being no English Parliament in the period after the referendum, as a Yes vote will not result in any re-negotiation of the Treaty of Union, just its cancellation.)

    In the Scottish Government's white paper, it says that part of the process of moving towards independence will be for Westminster to pass legislation allowing the Scottish Parliament to legislate on matters which are currently reserved, to enable the Scottish Parliament to put in place a 'constitutional platform for independence'. This would not be necessary if a Yes vote tore up the Scotland Act.

    The Scottish Government would not wish to short-circuit this process, because to do so would jeopardise Scotland's membership of the EU; their proposal is to use the period between the referendum and formal independence to negotiate Scotland's acceptance as an EU member state from within the EU. To preserve continuity of EU membership, Scotland must remain unquestionably part of the UK until Independence Day. Also, it is highly desirable that Scottish independence is seen by other countries to be by agreement with the rest of the UK. The last thing the Scottish Government will want to do is get involved in a legal debate about competing ideas of sovereignty. So even if your argument about the nature of Scottish sovereignty, and its potential consequences, is correct, it is not one that the Scottish Government would wish to use, except perhaps if Westminster renege on the Edinburgh Agreement.

    Doubtless you are impatient to see Scotland as a sovereign state once more; so am I, but we must accept that this will not happen before March 2016.

  7. We will have to disagree on this - simply because it is not in Cameron's interest to play the long game and let the UK Parliament linger any longer than he has to.

    The process in every other case you research is the rapid shift of power, when detaching, from Westminster once it starts.

    I disagree with the White Paper because it denies the legal and constitutional reality which is the UK Parliament can have no part in its own demise and this section has been deflected and cluttered by Westminster English constitutional baloney which has no place in Scots Law or constitutional practice. I was left sensing this section was a do not scare the kids section ....

    1. Actually, I wish I could agree with you, as if you are correct a Yes vote in the referendum will almost guarantee independence. My fear is that, especially if Labour win the next Westminster election, the UK government might renege on the Edinburgh Agreement. That is the risk of the approach outlined in the white paper; but the advantage is the potential for a relatively amicable, negotiated independence which will facilitate future co-operation between Scotland and the rUK. One could argue for a more confrontational approach, backed by arguments about Scottish sovereignty, but the Scottish Government would, I believe be very wary of that except as a last resort. The niceties of constitutional principles and law are all very well, but all too often it is the harsher 'realpolitik' which prevails.

      Anyway, we can agree that the important thing is to achieve independence, one way or another.