Saturday, 27 September 2014

Constitutional conundrums .... more important than you think.

The current Queen is Queen of Scots because she agreed a contract with the people of Scotland in 1952 and signed up to it (it is called the Claim of Right 1689) - she is Queen of England because, technically, 'God' says so and has anointed her with some 'Holy' oil ... but since she is also ultimately responsible for what 'God' thinks in England, as head of the Church of England, you could accuse her of a degree of bias and favouritism in the matter.

The UK Armed Services primary loyalty is to the crown and the people and not parliament (that is what it says on my commission), the crown has to 'approve' the deployment of the RAF jets and personnel.

There is, then, a theoretical constitutional quandary:

  • If the people of Scotland oppose the deployment (as represented by the recalled Scottish Parliament which acts under Scots law and constitutional practice) and the Queen of Scots still agrees to the deployment, is she in breech of the 1689 Claim of Right by ignoring the considered will of the people of Scotland (which is always paramount) as represented by her parliament in Scotland?
  • The UK Supreme Court has already made clear in two judgements on the validity of Acts, Bills and Statutes that they have no powers to overturn such Acts, Bills and Statutes if they reflect the considered will of the people of Scotland, as represented by the Scottish Parliament
  • Lord Cooper in McCormack vs the Lord Advocate, 1953 - questions the legitimacy and legality of the UK Parliament at Westminster to ignore the considered will of the people of Scotland as their Law and constitutional practices are preserved for all time by the Treaty of Union and that Westminster's presumption of only English constitutional practices in the UK Parliament is open to challenge; at that time Lord Cooper could not see where a challenge would come from.
Given the current considered will of the people of Scotland by a ratio of 11:9 to maintain the Union while having a SNP majority at its parliament at Holyrood seeking greater autonomy within that Union, how would the Court of Session in Scotland approach such a challenge under the Claim of Right (1689) on this issue?

The Court of Session's fundamental constitutional role is to protect the people of Scotland from abuse of power given by the sovereign people of Scotland to the crown or politicians by maintaining the 'Laws and Constitutional practices' of Scotland. The 1707 Treaty of Union is quite specific on this issue. The moot point is whether any such challenge gets past the inbred sense within UK constitutional legal beagles and practice that assumes the 'UK's unwritten constitution' (aka English constitutional practice) holds supreme and who state that Lord Cooper was in error in McCormack in his view and assertion of the protection of given to Scottish constitutional practice under the 1707 Treaty of Union.

It is clear the Crown and the UK Parliament would have to take any successful challenge against the 'Crown', on this issue, in the Court of Session to the UK Supreme Court. The question then becomes does the UK Supreme Court have any power or legitimacy to rule on a constitutional issue peculiar to Scots law and constitutional practice preserved by the Treaty of Union for all time?

Fine this is just a bit of intellectual 'jiggery-pokery', a thinking out loud, a 'What if'?

Yet I believe there is a real legal and constitutional point to be resolved which is dependent not simply on the powers and rights the UK Parliament seeks to claim to itself under the Scots Crown but the right of the people of Scotland to express their 'paramount considered will' and Westminster's legitimate or otherwise right to ignore it.

At the heart of all this is the myth of a 'Union of the Crowns' which has never, ever happened. A myth
through which the UK Parliament seeks to justify its powers, rights and privileges by assuming there is only one Queen and one UK crown. We have seen the weakness of this constitutional claim over the last three or so years with the UK Parliament's inability to prevent the referendum from happening and its continuing panic in the attempts to stop a referendum on this issue ever happening again or the squabble about 'English votes for English Bills' both of which will undermine the legitimacy of the parliament at Westminster to remain the UK Parliament, if passed.

The UK Parliament exists on the fundamental right of all elected MPs to vote on all Bills, Acts and motions before the 'house'. The only way you can have a situation where there can be 'English votes for English Bills' is devolution and the setting up of an English Parliament or series of regional parliaments. Any attempt by English MP's at Westminster seeking to block Welsh, Scottish and Northern Irish MP's voting within the current UK Union set up requires fundamental changes to the 1707 Treaty of Union. These fundamental changes can only be agreed by the original signatory parliaments of the Treaty which would require the recall of the sovereign English Parliament from its temporary suspension (the Scottish Parliament was recalled in July 1999 as part of the Scotland Act 1998).

This leaves the intriguing question:

Having recalled the sovereign English Parliament from its temporary suspension, held elections to the recalled parliament, how do you get it to 'agree' to a new UK Union settlement (given the large anti-jock sentiment) and how then do you then ask it to get back in its box and disappear?

Especially as this sovereign English Parliament would be likely to be elected with a sizable majority of UKippers and 'anti-Sweaty Jock' Tories who want rid of the Scots, full stop. On the other side you will have a sovereign Scottish Parliament with a built in, pro Independence majority, happy to walk away.

'English votes for English bills' could yet deliver what the 'Yes Campaign' did not quite succeed in doing so.


  1. Very interesting post thank you

  2. A fascinating analysis. It does, however, presume a respect for legality. This is Perfidious Albion we are talking about. The law is what English interests want it to be. That's why they enthusiastically embrace their "unwritten constitution". They have total freedom to do as they please. Who is to enforce the logical constitutional consequences you have so astutely identified?

  3. Fergus - when they try to bodge an 'English vote for English Bills' is when the legal challenge in the Court of Session is raised. The Court of Session has no choice but to defend the Treaty of Union in the light of 'McCormack vs The Lord Advocate' that the UK Parliament has exceeded its legal and constitutional rights as the UK Parliament has already conceded in law that it has no power to make such a fundamental change to its own nature, by doing so it ends the Treaty of Union as the UK Parliament has exceeded its legal and constitutional remit.

    All we have to do is keep the pressure on and Westminster will self destruct stuck between the SNP and UKIP

  4. Peter,

    You know more about the technicalities of this than I do, I just suspect that, whatever the Court of Session says, it will either be ignored, with all the media and the political establishment treating it is a joke, or it will be passed on to a higher court - the UK Supreme Court? - and overturned. Even if it stands, my question was not one of legal ruling, but of enforcement. Who will enforce the decision?

    Would you see the next step as being the Scottish Parliament declare that the Treaty of Union has been breached, and is therefore abrogated, and the Scottish Parliament resumes all sovereign power on behalf of the People of Scotland? With the stark evidence of the behaviour of the media and the UK establishment during the Referendum, things would get very nasty very quickly.

    I hope I am wrong, but we are dealing with the British establishment, aka "Dirty Tricks R Us". In all my six decades, I have never known them worry about legality or fairness. For them, politics trumps the letter of the law, which is, in any case, "what they want it to mean; no more, no less".

    We do know that the 45% and some of the deluded No voters who now realise what they fell for would have the guts to stand up for Scotland's rights, with all the fury of Hell falling about their ears. Fall it will.