Sunday, 31 July 2016

Is the UK Supreme or a court jester?

The flaw at the heart of the UK's constitution remains the sticky point of the legality of the 'Crown in Parliament' being that it is only competent under English Law and constitutional practice. Scots Law and constitutional practice does not recognise this concept (Lord Cooper 1953, McCormack) as the considered will of the people of Scotland is paramount.

For the 'Crown in Parliament' to be effective in the UK Parliament Scotland would have had to have been subsumed by England under the Treaty of Union and this never was or is the case as article 19 of the Treaty of Union clearly establishes by protecting Scots Law and constitutional practice (plus other key interesting bits and pieces) for all time where 'all time' means exactly that.

There is no such beast as 'UK Law' only English Law and Scots Law and this whole concept of the sovereignty of the UK Parliament through this English Law device is the fallacy at the heart of the UK's 'unwritten constitution'. A fallacy which the law makers at Westminster continue to cling to, since to face up to reality would cause the Westminster House of Cards to come crashing down. Instead Westminster perpetrates the mistake made by Bagshott and others on this issue, as gospel. To point this out on Facebook is to draw attacks from hyper-unionists, masquerading as independence loving Scots, from out under their stones.

The UK Supreme Court was first envisaged by Blair and Derry Irvine as a device to hamstring the newly devolved assemblies and Scottish Parliament, ignored this statutory fact and the original bill had to be amended to include judges from the Court of Session as members of the UK Supreme Court panel. The legal fact was English Judges had no competency to make decisions on issues brought before it on Scots Law. The judges who ruled on the issue of "Named Persons" were not 'UK' judges but members of the Court of Sessions acting in the UK Supreme Court by election from the Court of Sessions. 

The judges made their ruling on 'Named Persons' as a result of applying the ECHR criteria on human rights. Ironically the same ECHR criteria Mrs May's Tories wish to have struck down on exiting the EU and would have, in that case, prevented the right wing Christian Fundidlymentalists, at the heart of the legal action, bringing any legal action in the first place. So much for any 'victory' for the Fundidlymentalists as Lallands Peat Worrier has pointed out the changes required will only delay 'Named Person's Bill' becoming law by a couple of months and have done little to alter the overall bill except to make the transfer of information between the agencies on "Children at Risk", a bit slower, more cumbersome and lead to children continuing to fall through the net probably to their deaths. The "Named Persons Bill fails Scotland's children" is already being inked in for many a Unionist media headline when this happens but not the reason why, the Pyrrhic Victory of a few right wing fundidilymentalists .... the same sort of folk who opposed the repeal of Clause 28 and will soon be calling for 'intelligent creationism' to be offered to their children as the real theory for life on Earth, in spite of all the 'God given evidence' to those pesky scientists which demonstrates they are talking shite.

As part and parcel of Article 19 of the Treaty of Union the Claim of Right (Scotland) 1689 remains in law and it is by this Scots Law statute that Elizabeth the Second of England and Wales holds her title as 'Queen of Scots'. An interesting side effect of the McCormack case is that Royal Mail post boxes in Scotland only have 'ER' on them and not 'ER2'. Lord Cooper may have stated in McCormack the Crown could cypher itself what it wished but the old 'Post Office' was sensitive to Scottish sensibilities at a time of a growing movement for Scottish home rule in the early 1950's in the aftermath of the theft of the 'Stone of Destiny' and the two million signature petition for Scottish Home Rule which Churchill duly ignored in 1952.

The only attempt to have a legitimate 'Union of the Crowns' was blocked by the English and Scottish Parliaments on the occasion that James the 6th and 1st sought to have it put into law. No monarch since has sought to bring about a legal unification of the crowns. To this day it is two separate crowns on one head. The Queen took the oath for her Scottish Crown (in accordance with the 1689 Claim of Right) the night before her English Crown coronation at Westminster.

The Elizabeth is Queen of Scots by 'agreement' of the sovereign Scottish people until such times as she either breaks the oath undertaken under the Claim of Right or we decide she is not ruling according to the considered will of the people of Scotland which remains paramount.

It is possible an independent Scotland could see Chucky on the English throne by act of 'God's will' while we have his sister Annie Bananae as Queen of Scots because we asked her. A situation which was one of the primary drivers behind the English Parliament's sudden enthusiasm for the Treaty of Union, part of the deal was to ensure the Hanoverian succession on the throne to Anne, the last Stuart Queen. The other driver was the cost to the English Exchequer of buying off known Jacobite sympathisers among the nobles of Scotland, a cost which was running at some £1 million a year by 1705 (some £295 Billion in 2016 values) and handled by the likes of Daniel Defoe among other English spies.

First we have to nail the idea that Westminster can tell us what to do by any sort of God given right  enshrined in the 'Crown in Parliament' and ensure to remind all Scottish MPs and MSPs they are bound by the considered will of the people of Scotland, a will which is paramount under Scots Law and constitutional practice.

The funny thing is the SNP get this, as was seen in the response to the 'No' vote in 2014 and is being seen as a result of the EU 'remain' vote in 2016. Scotland is, in modern constitutional terms, a representative democracy which is the root of the growing tension between Holyrood and Westminster because the English parties look at the SNP benches at Westminster and are reminded of this crucial constitutional difference on a daily basis as the SNP represent the 'considered will' of the people of Scotland on issues from 'Trident' to 'Welfare' to the undemocratic 'House of Lords' (another of those places of English Law Tradition which Scots Law and constitutional practice does not recognise. The Scottish Parliament may not always have been very 'democratic' in modern terms but it was always 'collegiate' in the make up of the Thrie Estaites).


  1. There is no real Union, and as far as I can understand it, there never was. The plan and the daily practice was and still is Dominion.

  2. English Votes for English Laws and English Votes for Scottish Laws (when it suits them).
    We have little or no say in England's parliament and that is the way it should be but the converse should be true of our parliament.
    Obfuscation and a pliant media is how the UK union continues to survive but hopefully not for much longer.