Tuesday, 28 April 2015

The Lady with the Gioconda Smile

The only real significance of these opinion polls, as I pointed out in yesterday's 'Reaching for a tin foil hat', is if you look at the best case Labour result versus worst case SNP result - this shows the SNP polling over 40% and holding a gap to Labour of 10 to 12%.

The indications are the SNP will be the majority party from Scotland and thus under article 19 of the Treaty of Union will represent the 'considered will of the people of Scotland' at Westminster, a will which on two occasions since 2010 has been tested in the UK Supreme Court and been found to be 'paramount'.

All the constitutional 'fudges' used in the last 300 odd years to suppress Scottish representation in the British Establishment Parliament will be up in the air. This was never meant to happen, just like an SNP majority at Holyrood was never meant to happen, and brings us to Lord Cooper's point of Law in 1953 that Scots Law and constitutional practice does not recognise the concept of the 'crown in parliament' being sovereign as this is a singularly English legal and constitutional concept, a legal point conceded on the UK Parliament's behalf by the Lord Advocate. 

Further this legal and constitutional point made by Lord Cooper puts paid to any concept of the Scots being subsumed by England Parliamentary practice as has been long claimed and presumed. The UK Parliamentary constitution is (and always has been) a fudge which seeks to run two very different legal and constitutional systems in parallel for the mutual benefit of both parties. (McCormack vs Lord Advocate 1953)

Who actually exercises control of the 'considered will of the people of Scotland' in the UK Parliament,  Lord Cooper suggested, was purely theoretical and unlikely to be tested within the UK wide party system then in place (1953) across the UK, as any Scottish representation was beholden to their main UK party's manifesto.

When you get your head around this key legal and constitutional point, you understand why Ms Sturgeon's Gioconda smile is un-shifting in the face of all the hostility from the opposition politicians, media, commentators and their attempts to claim the SNP will be beyond the pale and isolated. This is because any Bills, Acts or Statutes effecting Scotland can not pass the UK Parliament without the agreement of the 'considered will of the people of Scotland' which will, with 29+ SNP MPs, be in the SNP's hands - even if the Tories and Labour do form a grand coalition at Westminster.

In short 29+ SNP MPs is the equivalent of putting a SNP fox into the unwritten UK Constitutional hen coop.


  1. I think you explained clearly now why there is so much panic at Westminster....

    I had a feeling there was a weakness in the set up of the union, but could never work it out......and couple that with the fact that they have been so keen to hold "the will of the Scottish people " in high esteem and legal precedent......

    To use a phrase from my youth....."Yaaaaaaaaaaaaaas!"

  2. Well the Scots are rebelling again, should have left us alone then.

  3. I've been sharing this page left, right and centre, over the past couple of months but it seems that the sovereign people of Scotland just can't get their heads round the power they have.

  4. This all supplements exactly what I have been saying since I was a wee schoolboy in Edinburgh in 1949. I used to often spend time around the many old book shops & second hand shops in the Old Town. If I bought an old book I would hie myself to Greyfriar's Kirkyard as a peaceful place for a read. There I often met an old Legal Eagle who also often came there for it's quiet peacefulness.

    The Old guy shared my love of Scottish History and would tell me how the popular taught history was most often utter rubbish. His take on the matter was backed up by many precedents & cases in Scotland's highest courts and by the historic treaties between the two Kingdoms.

    At no time in Scottish History, since 1320, have the Sovereign People of Scotland ever legally given up their legal sovereignty and that sovereignty is a prime tenet of Scottish law. The problem is that, "The Establishment", has historically, (long before even the, so called, Union of the Crowns), always assumed English sovereignty overruled Scottish Sovereignty. Indeed the main purpose of the, "Declaration of Arbroath", was to legally secure both Scotland's independence and the people of Scotland's Sovereignty.

    The Declaration was accepted by the then international authority in 1320. In 1328 England legally accepted Scottish Independence. In 1371 Robert Bruce was Crowned King but 31 years later England was again invading Scotland attempting to illegally assert English sovereignty and here we are in the twenty teens and England is still assuming they own Scotland's sovereign people. How, though, do we legally assert the sovereign will of the people of Scotland?

  5. Thanks Rosie for pointing me in the right direction. Xxx