Treaty or Act?

It has been pleasing to read the growing number of informed letters to the National on the subject of the Treaty of Union, in the light of their lordships' house's ignorance of the difference between the Treaty of Union and the separate Acts of Union. After all I have only been banging on about the difference, in this blog, on a regular basis since 2012.

I have often been chastised by our own Lallands Peat Worrier with my claims regarding the question of where Scottish sovereignty now lies. An issue which has become more and more of a moving feast and increasingly contentious with the demotion of the old and powerful Scottish Viceroy at the Scottish Office to that of a UK cabinet embarrassment, with hugely hollowed out powers and little traction in his own land, as a result of the 1998 Scotland Act.

The stramash as to where Scottish sovereignty now lies has, at its heart, Lord Cooper's judgement in the case brought by McCormack et al in 1952 on the use of ER2 on Scottish Pillar Boxes and other Royal Mail insignia in Scotland. An event which saw MI6 operatives seeking to discredit McCormack and others by encouraging and providing explosive material to enable a few nutters to bomb post boxes with the ER2 insignia on them, across Scotland. Lord Henderson threw the case out against this 'murderous gang of Scotch Rebels' as soon as it was discovered the role of MI6 as 'agent provocateurs' in their exploits. After all, how could you jail folk for carrying out the UK Government's own instructions. You will have to do a bit of Googling to discover the full details of this hushed up case of Unionism's dark side and bitter embarrassment.

To McCormack and Lord Cooper: while Lord Cooper found against McCormack on the main point of law stating 'the head of the UK State could number themselves how so ever they so wished'. Lord Cooper did raise a number of constitutional issues regarding the Treaty of Union and the disregard of the powers given and curtailed by the Acts of Union on the UK Parliament of the day. The key legal and constitutional issues he laid bare were these:

• Neither the Treaty of Union nor the enabling Acts allowed for the current constitutional contention that Scotland's Laws and constitutional practices were subsumed by English practices as a result of the formation of the UK Union Parliament, though it had become so by habit and error
• Scots Law and constitutional practice does not recognise the solely English constitutional contention of the 'English crown in parliament' as the source of the UK Parliament's sovereignty as under Scottish Law and constitutional practice the Scottish people are and remain sovereign, lending their sovereignty to the MPs representing Scottish constituencies at the UK Parliament and to the Scottish Crown
• Any changes to the Treaty of Union could only be agreed after the recall of the two original signatory sovereign parliaments and by the introduction of new, enabling Acts of Union by the two original, recalled, sovereign parliaments. The UK Parliament as constituted has no legal or constitutional right to alter those conditions of the Treaty of Union, protected for 'all time', where 'all time' means exactly what it says on the tin, by its own say so.
• The Lord Advocate of the day conceded these key points of law and constitutional practice on behalf of the UK Parliament

This leaves the 'Unionist Lords a leaping' in a large constitutional hole with regards the issue of the creation of any new 'Acts of Union' as they have neither the constitutional nor legal powers to make or propose any such amendments on issues protected for 'all time' by the Treaty, nor does the UK Prime Minister nor any member of the UK cabinet or UK parliament.

You can throw a bit more petrol on the 'where does Scottish Sovereignty lie' bonfire by pointing out that Holyrood was acclaimed as the recalled, sovereign, Scottish Parliament's suspended sitting of 1707 when brought back into session in July 1999. Thus under Scottish Law and constitutional practice Scottish sovereignty lies primarily with MSPs and is devolved to MPs on such matters which are currently reserved by the UK Parliament under the 1998 Scotland Act and its amendments. On all other matters the Scottish Parliament is sovereign as AXA et al discovered in 2010 when they tried to have a bill of the Scottish Parliament on asbestosis plaques struck out as it was at divergence with the UK Parliamentary Bill on the same subject.

In the end the UK Supreme Court stated it had no powers to set aside this bill on 'Asbestosis plaques' of the Scottish Parliament as it 'reflected the considered will of the people of Scotland' and this legislation was not on a reserved matter. Even Lallands Peat Worrier was surprised at the UK Supreme Court finding for the Scottish Parliament on this issue, going as far as suggesting the only reason AXA et al lost was they chose the wrong legislative pathway and argued the 'wrong' point of law to enable their claim to proceed successfully.

The problem remains for even the experts, like Lallands, as to where Scottish sovereignty actually lies and for now is up there with the equally variable contention of 'How long is a piece of string?'.

Margaret Thatcher clearly understood the constitutional significance of the role of MP's from Scotland with regards Scottish sovereignty but like Lord Cooper, in 1953, could not see a day when her main fear of a majority of SNP MPs wielding Scottish sovereignty at Westminster would ever happen. Micheal Forsyth understood the impact of a devolved Scottish Parliament on UK Parliamentary sovereignty as he tried to block Donald Dewar at every turn on the Scotland Act of 1998. Blair was pushed kicking and screaming into making the bill happen and only gave in when it was demonstrated by using the D'Hondt method of proportional representation, chosen by Dewar, the Holyrood Parliament would always have a built in Unionist majority.

Now David Cameron has to face both Blair and Thatcher's worst nightmare, a majority of SNP MSPs and MPs at Holyrood and Westminster respectively. EVEL is a stop gap to stall the SNP's influence but is making the political gap between Scotland and England, in this teetering UK Union, ever greater. The signs appear that even died in the wool Scottish Unionists are now increasingly worried about Cameron's blind, angry and aggressive approach to the people Scotland which may win votes in England's SE, but is driving the wedge ever deeper into the already sizable cracks in the UK Parliamentary Union. The Unionist media in Scotland no longer dictates the story, the Scots are now making the story for themselves and for the House of Lords, in their ignorance, to seek to gerrymander a new 'Act of Union' is just another potential nail in Scottish Unionism's coffin:

"See yon beltie ca'd a Laird, he's bit a couff fir aa that ..."

Never have Burn's words rung so true.

By Scots Law and constitutional practice, Scottish sovereignty still lies with the people of Scotland, just as it always has, and we decide who exercises our 'considered will', on our behalf, by use of the ballot box at Westminster and Holyrood or by agreeing who's head has the Scottish Crown, it is not and has never been the gift of the UK Union Parliament.