Tuesday, 10 December 2013

The Scottish Break Away

Oh, Scotland has nae got a King
And she dis’nae hae a Queen.
Hoo kin thir be a Second Liz
Whin the first yins niver been?

So went a song popular in the folk clubs of Scotland in the early 60’s. Behind this song was a constitutional problem, a problem got round by a 1952 Bill in the UK Parliament which changed the way the United Kingdom numbers its monarchs. The change had little to do with constitutional niceties and everything to do with PR, a new Elizabethan age and of course to see off those pesky Scots who had just dumped a petition of over a million signatures at the door of 10 Downing Street requesting the Scottish home rule, as per the suspended bill of 1914, as promised in 1922 – I think you get the picture.

The constitutional points raised in the attempts to get Liz 2, Liz 1 in Scotland failed in their primary purpose. Yet the judgement set out by Lord Cooper in 1953 (McCormack vs the Lord Advocate) highlighted a core and potentially more intrinsic problem for a UK constitution which was fundamentally the English constitution in all but name and it was this: Scottish Law and constitutional practice does not recognise the English constitutional concept of the ‘crown in parliament’. Lord Cooper went on to make some key constitutional statements that UK constitutional experts have been arguing the impact of, ever since:
  • The Treaty of Union preserved the independence of Scots Law and constitutional practice for ‘all time’
  • ‘All time’ meant exactly that
  • 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
  • The considered will of the people of Scotland was always paramount
All these points were conceded on Westminster’s behalf by the then Lord Advocate.

The constitutional concept of the considered will of the people of Scotland, just where does this come from?

We have to go back to the Declaration of Arbroath to discover the written roots of this concept. Some historians would claim the concept had long been part of Pictish tradition in the way their kings were acclaimed rather than it being a family business. Kenneth McAlpin changed it to familial succession in the early 10thCentury much to my forebear’s, the MacGregors’, chagrin (the suggestion is it was their Buggins Turn on the throne) and something we MacGregors are still whinging about today. Public acclamation - a version of the expression of the considered will of the people.

The Declaration of Arbroath was a multi-purpose document as it was:
  • A PR stunt to get crowned heads across Europe on Scotland’s side
  • A political document to persuade the Pope our King was the real deal  
  • A rejection of Edward the First’s putative claim to the throne of Scotland via an old treaty of the 10th century when a newly united Scotland and the newly emerging England combined forces against the Vikings
Yet within this high flown document, with its outrageous claims, was the key statement regarding the ‘freedom’ for which Scots strive and most importantly the declaration that any King who looked as if they were giving in and endangering this ‘freedom’ would get their jotters. This is the first written declaration about the power of the considered will of the people of Scotland, it was a power which could set aside a ‘God anointed’ king or queen. Of course this power was to be wielded by the Lords and the Church; well you just cannot trust the people – can you.

Robert the Bruce blind-sided the Church and the Lords by inviting the Burghs to send representatives to the 1328 Parliament and by creating the Scottish Parliament of the Thrie Estaites allowed a clever Scottish monarch to manipulate two out of the three factions to ensure his will was what happened. Not so clever Scottish monarchs found themselves dancing to the Thrie Estaites tune and on at least two notable occasions found themselves out of a job – the most famous of these being Mary, Queen of Scots.

This is the historic context of the constitutional ideas of the ‘sovereign people of Scotland’ and the ‘considered will of the people of Scotland’ arose which in turn defined and set Scots Law from the 14th Century onwards, establishing in Scots Law the concept of all are equal under law.

In the late 1600’s the problems with James the Seventh came to head as his attempts to bring a French style of monarchy, where he held sole and ultimate power over everything, began to founder. The Thrie Estaites in agreement with the Parliament of England put pressure on James the Seventh to leave and give up the Scottish throne or be kicked out on the basis he was threatening the freedoms of the people of Scotland and it was the considered will of the people of Scotland, James should go.

To this end the Thrie Estaites brought forward a bill, The Claim of Right (1689) which stated the reasons why James the Seventh was out and the contract, with the sovereign Scottish people, any future monarch of the Scots would be signing up to, clearly defined. This Claim of Right was sworn to by Elizabeth, Queen of Scots the night before her English coronation in 1952 before ‘representatives’ of the Thrie Estaites. The 1952 Coronation was set up to look like the Scottish and English crowns are unified yet the reality in the UK is the crowns are not unified and never have been. This in turn brings us to the point Lord Cooper made in his 1953 judgement Scots Law and constitutional practice does not recognise the purely English concept of the ‘crown in parliament’. Lord Cooper did not see the constitutional point of where Scottish sovereignty lies ever becoming contested within the Union and accepted the established constitutional fudges of a Scottish Parliamentary Committee and a Scottish Secretary carrying on indefinitely, as it was the only way the Union Parliament could effectively function. Lord Cooper never considered the impact of devolution and the transfer of power to a Scottish Parliament in his judgement.

In 1999 this particular fudge began to unravel as the Scottish Parliament officially resumed from its suspended sitting of March 1707. The 1998 Scotland Act was supposedly designed to ensure sovereignty remained in Westminster even though the legitimacy of this claim was now open to question as it is solely based on the constitutional concept of the English crown in Parliament. In turn the return of the Scottish Parliament raised the other Union claim as where did the ‘considered will of the people of Scotland’ now lie, Edinburgh or Westminster, and just how ‘sovereign’ are the sovereign Scottish people of the 1689 Claim of Right. This was supposedly sorted in clauses 5 and 30 of the 1998 Scotland Act but, at that point, there was nowhere with the legal authority in the UK which could rule on these two clauses legitimacy. As the penny dropped that some smart Scottish Nationalist could seek to challenge these clauses in the European Courts, Blair cooked up the UK Supreme Court as a way of preventing any such challenge in European Courts and thought he could pack it with English judges to ensure the Scotland Act was read the way the Government wanted. The self same English judges pointed out the UK Supreme Court could not operate as desired by the politicians as they had no jurisdiction over Scots Law. The Megrahi debacle merely emphasised Westminster’s inherent ignorance of the legal and constitutional fudge that is the UK when Jack Straw rail-roaded a bill through the UK Parliament on prisoner exchange, to speed Megrahi on his way back to Libya, only to find Scottish judges did not recognise the bill as competent and anyway Scots Law already had prisoner transfer legislation in place, in line with EU requirements, thanks very much. It was the Scottish Government who decided Megrahi’s fate, allowing a man with a terminal illness to return home on compassionate grounds and little thanks did it bring them from a UK Government that only months before had been trying to secure the same end. Megrahi raises an interesting constitutional question; was the Scottish Government’s decision to release Megrahi one of a sovereign state reflecting the considered will of the people of Scotland?

The big test of Clauses 5 and 30 of the Scotland Act was played out in the UK Supreme Court in AXA and others vs the Scottish Parliament over the bill of the Scottish Parliament not to allow insurance companies to wiggle out of their liability for people suffering from pre asbestosis or silicosis lung plaques. AXA’s basic case was; as the UK Parliament had passed a bill excluding plaques from insurance liability, a junior, devolved parliament had ignored this ‘master bill’ and the UK Parliament Bill should take precedence over ‘subsidiary legislation’ by the Scottish Parliament. The argument was for the bill of the Scottish Parliament to be struck down. In the weeks and days leading up to the UK Supreme Court ruling the national media was full of the embarrassment about to be dealt to the Scottish Parliament and to Mr Salmond in particular, by AXA’s submission to the UK Supreme Court, according to various ‘legal experts’ who were routinely paraded across the UK’s television screens. The UK Supreme Court did not play ball with the ‘experts’ and instead made clear they had no power to set aside a bill of the Scottish Parliament. One of the reasons for not setting aside this bill, hidden away in the judgement, was the bill on lung plaques reflected the considered will of the Scottish people as expressed by their parliament. In this the UK Supreme Court were clearly taking their lead from Lord Cooper’s 1953 judgement on the importance of the considered will of the people of Scotland.

When we look at the Referendum Bill we see a UK Parliament, who would have done anything to prevent a Scottish referendum on ending the Union from ever happening, apparently caving in fairly rapidly. What happened to Cameron’s first assertion the UK Parliament would never allow such a bill? Why were clauses 5 and 30 in the Scotland Act not immediately brought to bear, to put down the devolved parliament in Edinburgh on this issue?  Could it just be the UK Government’s legal advice was they could not prevent the considered will of the people of Scotland being expressed in the light of AXA’s defeat in the UK Supreme Court? In the end, the referendum is happening much as the SNP Government always said it would, yet the option of Full Fiscal Autonomy which would have most likely kept the Union intact is the very option the UK Parliament chose to block and ignore. We know the reason why this is so, Lord Cooper made it clear in 1953. Full fiscal autonomy would require the renegotiation of the Union Treaty and this can only happen in negotiations between the sovereign parliaments of Scotland and England. A deal an English Parliament and its electorate would be unlikely to agree to.

What, I hope, is increasingly evident, in this brief overview, is the power wielded by the considered will of the people of Scotland, in Scotland when we have politicians who are not willing to play Westminster’s ‘Move along, nothing to see, don’t you Scots bother your pretty heads’, game.  The question of where sovereignty lies is clear, it remains with and in us the Scots electorate and we decide who we allow to wield it, not Westminster nor Holyrood nor Elizabeth, Queen of Scots – they should just do as they are ‘telt to’ by us, the Scottish people – Scotland is a representative democracy.

It has taken me two years of research on the Scottish constitution to reach my current view point. I have deliberately gone back to primary sources because the problem with being an expert  in any field or reading what experts say, is you are lead to justify the status quo, mainly because that is what ‘experts’ are ‘taught’ to do and not to think sideways. “What if my elders and betters are wrong?” is not a question ‘experts’ often ask.

In the remaining months, leading up to September 2014, it is time to remind Scots who actually owns and runs Scotland – us, the Scots electorate. We have no need to be subservient to any politician whether in the Union Parliament or at Holyrood.  Scotland is its people first and foremost and our considered will remain paramount, this the whole point of Scotland, constitutionally, being a representative democracy, no matter how Westminster tries to spin it or tell us otherwise. Westminster lost any remaining control over of Scotland with the Edinburgh Agreement. This loss of control is seen in the ever more outrageous scare stories Westminster politicians and their tame media seek to spin on their ‘here one minute, gone the next’ forays into Scotland. Scare stories which do not stand any detailed examination and are often contradicted by the very next scare story as Grangemouth and now BAE systems on the Clyde clearly establish.

If I am on the right track with my research and thinking is it any surprise Westminster is keeping its legal advice, on the Scottish Referendum, close to its chest.

(Prepared for an on line journal; as yet unused)

14:27 Appendix:

Given the considered will of the people of Scotland is paramount and  in votes in both Westminster and Holyrood the majority of  Scottish Constituency MPs and MSPs, respectively voted against Ian Duncan-Smith's Welfare Reform Bill, and thus expressing the considered will of the people of Scotland, just where lies the legal and constitutional authority to impose this bill on Scotland? 

I would argue there is no legal and constitutional authority to enforce this bill in Scotland as the only authority the UK Parliament has on this issue is from the English Crown in Parliament and therefore this bill can only be competent under English Law and constitutional practice and not in Scotland under its separate law and constitutional practice protected for all time by the 1706 Treaty of Union.


  1. Peter, this is a great post and one I would strongly urge you to send to a certain Mr Thomas Rymer (no really) of the OSCE,
    I emailed him in April with a plea for the ODIHR's oversight of the media in Scotland (I think you know why) and the response was only a sovereign government can ask for their involvement this post shows that their is enough ambiguity (at least from their standpoint) to allow their oversight at the request of the Scottish government contact

    Thomas Rymer
    OSCE Office for Democratic Institutions and Human Rights (ODIHR)

    Tel: +48 22 520 0640
    Mobile: +48 609 522 266

  2. John have done as requested - will blog on the outcome - if any ...