Sunday, 17 July 2016

Theresa may not ...

This weekend we are beginning to see the difference between what Westminster claims is it sole authority. legal right, constitutional supremacy and the dichotomy caused by the devolved Parliament at Holyrood which is bound by Scots Law and constitutional practice so has to conduct itself in accordance with Scotland being a representative (the people are sovereign) and not a 'parliamentary' democracy (parliament is sovereign).

The root of the problem increasingly faced by Westminster when dealing with Scotland's considered will, a considered will which in Axa et al vs the Scottish Parliament (2010) the UK Supreme Court stated was paramount in accordance to the 1689 Claim of Right (Scotland) which placed in legal statute the primacy of the sovereign people of Scotland, is simply the constitutional fudge on which the Union has relied on prior to the 1998 Scotland Act, the Secretary of State for Scotland exercised Scotland's considered will, no longer has any legal or constitutional status. 

The 1998 Scotland Act terminated this long standing fudge as the legitimate considered will of the people of Scotland could only now be exercised by the Scottish Parliament. Hence why Mr Forsyth, the last 'Tory Viceroy of Scotland', was so stridently against any move to Scottish devolution, he understood exactly what the impact of Lord Cooper's judgement in McCormack vs the Lord Advocate (1953) would entail on devolution and especially the bit where Lord Cooper stated that "the legal and constitutional practice of the 'Crown in Parliament' is a solely English Law concept, constitutional practice and has no legitimacy in Scots Law or constitutional practice where the considered will of the people of Scotland is paramount"

The 'Secretary of State for Scotland' fudge then became the 'Sewel Motion' which covers all UK Parliamentary legislation which impacts on Scotland and requires the agreement of the Scottish Parliament before it can become law and applicable in Scotland. This was perfectly workable while Labour ran the Holyrood parliament as they would "jist dae is they were telt by Lunnon". With an SNP majority / minority government at Holyrood this cosy fudge ended as the SNP cannily played the 'Holyrood is a representative democracy' card and began to test just how far Lord Cooper's judgement in 'McCormack' could be played. The answer was seen in how rapidly Cameron went from "Independence Referendum; over my dead body" to "OK then" and exposed a UK constitutional fault line which is about as stable as the San Andreas Fault.

It is interesting to note on internet chat lines over this weekend how dyed in the wool Unionists are claiming Ms Sturgeon's position on preventing Scotland from being removed from the EU against our considered will, as represented in the EU referendum, is somehow 'undemocratic' and a 'betrayal of the Scottish electorate'. Yet as Scotland is a representative democracy it can be clearly argued the minority Unionists are the one's actually ignoring the democratic reality which is Scotland voted by a sizable margin to remain in the EU and in May 2016 elected a SNP Government, again by a sizable majority of the active electorate in Scotland, who stated the removal of Scotland from the EU, against our considered will, would be reason to bring forward a new independence referendum and termination of the Treaty of Union with England.

The SNP have worked carefully within the bounds of Scots Law and constitutional practice to the extent, in the light of the Axa et al judgement by the UK Supreme Court, means a legal challenge against the demonstrable 'considered will of the people of Scotland' will fail. In effect the UK Supreme Court is in sympathy with Lord Cooper's 1953 judgement on the inviolable right, protected by the Treaty of Union for 'all time' where all time means exactly that, being the sovereign people of Scotland's considered will remains paramount in accordance with the Claim of Right 1689 (Scotland) which remains 'in law' and by which Liz holds the Scottish Crown, agreeing to conduct herself as required by the considered will of the sovereign people of Scotland. Hence why Liz is 'Queen of Scots' and not Scotland. She is Queen just as long as the considered will of the people of Scotland agrees she can be Queen.

So Theresa may not:
  • Prevent a second referendum on independence based on the forced exit of Scotland from the EU
  • Bring forward a new 'Union Treaty', as proposed by her numpty Lordships - Lord Cooper stated any such change (such as a new Union Treaty) could only be agreed by the sovereign signatory parliaments of Scotland and England
  • Unilaterally create a federal UK - The Westminster UK Parliament has no such legal or constitutional power to do so, a legal point conceded on Westminster's behalf by the Lord Advocate, before Lord Cooper in 1953
The SNP are being very canny and have let Westminster walk into a legal and constitutional blind alley of Westminster's own creation. Westminster's claim to UK wide sovereignty is based on a constitutional fallacy. A constitutional fallacy which Lord Cooper high lighted in 1953 and it is this, Scotland was subsumed by England by the Treaty of Union. Lord Cooper makes clear this was never the case and the presumption that only English Law and constitutional practice is operable at the UK Parliament has no basis in the Treaty of Union, as is made clear by the protection of Scotland's unique legal system and constitutional practices for 'all time' by the 1707 Treaty of Union, a treaty between equal partners, this legal point was also conceded by the Lord Advocate on Westminster Parliament's behalf. Lord Cooper could not see a time where this illegitimate legal and constitutional assumption within the UK Parliament and the fudges used to get round it, would be challenged. Lord Cooper never envisaged  Scottish devolution, an SNP majority, the Pandora's box of constitutional paradoxes which devolution would release nor the growing tension between Scottish representative democracy and English parliamentary democracy which would then come into play.

Westminster's claim of parliamentary supremacy has now been challenged and found to be wanting. Rather than deal with what actually is, the UK Parliament - through its two main Unionist Parties - is currently in the process of destroying itself in a Goya-esque orgy of self immolation. The Unionist Saturn is consuming its own children and the result is Mayhem.


  1. Keep hammering away at this for I believe you are right, no matter what Tickell may say.

    Why else did Cameron accede to the first referendum?

    1. Yes and Mrs May hot footing it to Edinburgh to ensure Scotland was on side with England's EU exit decision.
      Why would she announce that Scotland would have to agree those terms if she didn't have to?
      Cameron,in having refused our request to have a veto over the process before the referendum,has opened a constitutional can of worms.
      His arrogance may well result in the end of the UK union.

  2. A most interesting informative article - much more valuable than the more commonly published pieces! Whatever we think we know, we'll always find such well qualified observations of interest and encouragement...we can happily accept more such as this! Saor Alba gu brath!