Weekend: Sovereignty for dummies
We’re delighted to welcome another new voice to Wings Over Scotland, this time in the shape of Peter Thomson of the Tarff Advertiser.
The most fundamental concept of Scottish constitutional practice is the right of the people of Scotland to remove their sovereign. It is a right which has been exercised on at least two famous historical occasions: the forced abdication of Mary, Queen of Scots, which brought about her flight to England, and the removal of James VII from the Scottish crown, based on evidence of James’ attempts to usurp the Scottish people’s sovereign power to the crown alone, in line with his belief that he was king by God’s will and right.
The key passage of the Declaration of Arbroath is the one that contends that the King of Scotland and his successors are king by contract with the sovereign people, and if the crown does not serve the people it can be removed by the will of the people. Originally “the will of the people” would have been the nobles of the day, and the clause was a way of ensuring Bruce kept to his word.
In the years after Bruce’s blindsiding of the nobles in the 1328 Parliament, the concept of equal representation and voice of the Nobles, Church and Burghs – the “Thrie Estaites” – wielded a lot of power. Bruce had realised that without the support of the Burghs there would be no finance available to the crown, he needed the Church to run the administration, and the Nobles to provide force majeur when required. So the will of the sovereign people of Scotland was expressed by the “Thrie Estaites” from early on in the 14th century – without the support of all three the crown was helpless.
Following the Treaty of Northampton in 1329 which re-secured independence, Scotland could be seen to be what we would now refer to as a representative democracy, and more democratic in its political construct than most other Kingdoms at this time. There were no ‘elections’ as we would recognise them in the Burghs to decide who represented the Burgh at Parliament, yet there was a very powerful check and balance: the Burgh mob, who would protest and riot if Parliament tried to enforce Acts and Laws that were not to the mob’s liking or infringed what they considered to be their rights and liberties.
(Given that their lordships and the clergy lived cheek by jowl in the Burghs with the rest of the great unwashed, they were not immune to the Burgh mobs’ hue and cry nor, especially in Edinburgh, could they avoid the ‘hurley burley’ when the Scottish Parliament was in session.)
The position of the Crown in Scotland as one of acclaim rather than right reflects an older tradition of the Picts, which the early Scots kept during their integration with the Picts in the 7th and 10th centuries. This was the concept of a rotating kingship which ensured no single family could take overall power. This only changed with the rule of Kenneth McAlpin, when he took the title of ‘Righ an Albanach’ and established the idea of succession by primature.
According to history he was opposed by the family which became through time the Clan McGregor, who were due for “Buggins’ turn” after McAlpin (and who have been complaining bitterly about it ever since). So the idea of kingship by acclaim was not a revolutionary idea for Scots, but could be viewed as merely a return to what always had been.
Under James VII during the ‘Glorious Revolution’ the “Thrie Estaites” looked again at the contractual notion of Scottish kingship, and offered the throne to William and Mary on the basis of the 1689 Claim of Right, which was enacted into Scots Law as a statute and remains on the legal books of the UK to this day. In Scottish constitutional terms Elizabeth, Queen of Scots, is on the throne because the people say so, and if we decide the House of Windsor is in breach of its contract they can be expelled just like James VII before them.
For example, if the Queen were to publicly state that she did not wish Scotland to be independent (as many of the Unionist persuasion like to claim), she would be acting contrary to the requirements of the 1689 Claim of Right, as it is not within her power to decide on this issue nor use her position to influence the decision in any way – Elizabeth, as Queen of Scots, must accede to the wishes of the Scottish people, or lose the right to the Scottish crown.
(Constitutionally it can be argued that as Westminster is a parliamentary democracy where the Royal Sovereignty is held within that parliament – anything the parliament at Westminster decides in the monarch’s name with respect to Scotland, but which the people of Scotland oppose, could in fact cause the monarch to be removed from her Scottish crown)
This major constitutional hurdle for Westminster has always been in place. The original mechanism designed to circumvent it was the Scottish Grand Committee – which notionally represented the Scottish people’s sovereign voice at Westminster – and in turn the Scottish Office, whose statutory role is to ensure that no UK Law or Statute conflicts with or affects the core rights of the sovereign Scottish people. This is a role which in the last four decades it has serially failed to fulfil, starting with the Local Government Reorganisation Act (Scotland) of 1973.
Fife County Council refused to dissolve itself under the Act, and when the then Secretary of State for Scotland (Willie Hamilton, Labour) tried to enforce Fife’s dissolution he found himself face to face with this very conundrum, when the Queen refused to sign the Order in Council dissolving Fife County Council, in order to uphold and protect the people’s historical rights. The expected legal challenge from the Secretary of State in the Court of Session never came, and Fife County Council went on as before, simply changing its name to Fife Region as its part of the local government reorganisation.
Some authorities go so far as to argue that the Local Government Reorganisation (Scotland) Act 1973 was unconstitutional. The reason they argue is that the rights, liberties and freedoms of the Scottish Royal Burghs were not Westminster’s to remove, as they were individual contracts agreed between the Scottish crown and the burghs and these arrangements were protected under the articles of the 1707 Treaty of Union for all time.
This may well be why the Queen Of Scots was not prepared to sign for the demise of Fife County Council, and why the Secretary of State did not engage in a legal challenge – to do so could well have seen the whole 1973 Act holed below the waterline, when it hit this particular constitutional iceberg in the Court of Session.
Then there was Lord Cooper’s much-cited judgement in McCormack vs the Lord Advocate (1953) where he stated that “the principle of unlimited sovereignty of parliament is a distinctly English principle and has no counterpart in Scottish Constitutional Law”. Equal importance must also be given to the Lord Advocate’s own concession, “admitting the Parliament of Great Britain could not alter or repeal fundamental and essential conditions of the Acts of Union.”
Lord Cooper’s core finding was that the Acts of Union preserved the rights of the Scottish people as being sovereign, and that that status is an essential part of the Acts which cannot be changed, for all time. The 1998 Scotland Act had to tread a very difficult line between trying to hold onto as much power and control at Westminster as possible, while not raising the spectre of any attempt to usurp that constitutional reality, with all the potential impact this could have on Westminster’s grip on Scotland.
Michael Forsyth clearly had read Lord Cooper’s judgement, and argued that the potential Scottish Parliament could pass a bill for independence and there would be nothing Westminster could do to stop it. Forsyth understood that in Scottish constitutional law and practice the Scottish Parliament would be empowered by the sovereign Scottish people, in a way Westminster never legitimately was.
To ensure pro-Westminster parties would always held the whip hand, the dog’s-breakfast mix of FTP constituencies and PR lists was cobbled together – another fudge – but Westminster had to concede that any bill with a direct impact on Scotland now must receive the agreement of the Scottish Parliament before it could be enacted. The reality is the much vaunted sections 5 and 30 of the Scotland Act were enacted to pacify MPs, because in their scope and direction they were clearly in breach of the people of Scotland’s sovereignty, as they made claim to the unlimited Westminster powers which Lord Cooper had stated in 1953 had no counterpart in Scotland.
Tony Blair had now been pushed into signing up to a bill he didn’t want, and would have abandoned in a heartbeat had it been politically possible. He looked at ways Westminster could enforce sections 5 and 30 of the Scotland Act and found there was no appropriate vehicle. To create one, the UK Supreme Court was thought up and brought into being – the problem was again that such a court had no real legitimacy in Scots law and in fact could be argued to have breached the Treaty of Union by its creation, as it threatened the independence of Scots Law. (Blair had a couple of tame Scottish Law Lords agree to sit in the Court and give it a veneer of assumed legality.)
There have now been a number of skirmishes between Scots criminal law and the Supreme Court, but the real crunch was when the first case under section 5 and 30 of the Scotland Act hit the Supreme Court’s desk. All legal expert opinion seemed to feel it would be a walkover for AXA et al vs The Scottish Parliament. Under section 5 &30 of the Scotland Act 1998 the Scottish Parliament’s Bill on Asbestosis Plaques could not stand, as it was clearly at odds with the Acts of the Parliament of Great Britain on the same subject.
Much oil was burned in the UK media about the impending embarrassment for Scotland and the humbling of its pretendy parliament. Yet something strange happened – the UK Supreme Court found for the Scottish Parliament. Hidden away in their judgement was the statement that it had no power to set aside any bill, statute or act of the Parliament of Scotland where that bill expressed the clear will of the (sovereign) people of Scotland.
Forsyth was correct in the context of his original concern that the Scottish Parliament would become the expression of the people of Scotland’s sovereignty and not Westminster – the UK Supreme Court has now acknowledged the fact. Blair may have escaped being the Prime Minister who over saw the end of the Union but he was right in understanding that the Scotland Act 1998 would become the thin end of the wedge. What he didn’t expect was the collapse of the Labour vote in Scotland since 2006 and an SNP majority government in Holyrood willing to flex the people of Scotland’s sovereignty in the best interests of the people of Scotland.
To those who would argue the people of Scotland being sovereign is a myth, that we have no real power and that our sovereignty is merely a curiosity of ancient history, the few examples in this essay should give pause for thought. The 700-year-old history of the people of Scotland’s sovereignty is alive and well and continues to protect our fundamental rights to this day.
First class and thought-provoking…this article should be required reading for any and all students of Scots/uk Law and/or History…EXCELLENT!!
Excellent article. A must read to understand Scotland’s true place in the UK
Would i be correct in thinking, that a majority SNP government could simply end the act of union, without calling a referendum? Or have i not understood this properly?
Juteman,
I don’t think so. If you read again that quote: “Hidden away in their judgement was the statement that it had no power to set aside any bill, statute or act of the Parliament of Scotland where that bill expressed the clear will of the (sovereign) people of Scotland“, you might think that gives the Scottish Parliament the right to end the union. But the Scottish people did not VOTE for the SNP on a mandate to end the union, they voted for the SNP to run the devolved Scottish Parliament. Independence is not (yet) the “clear will of the (sovereign) people of Scotland”.
When/if it is, it will happen, and no one can stop it.
Aye, Juteman, they forgot to put it in the manifesto – doh!
Excellent read.
Point of pedantry. Willie H., well remembered for his republican views, was never Sec. of State. Willie Ross was, and his career as a firm Unionist and opponent of devolution serves to remind us all of just how unresponsive the Scottish Labour Party has remained, over all these years, to the will of the Scottish people.
O/T
Just watching The Fall of The Roman Empire.
The parallels are uncanny.
Corrupt administration, debased currency, rioting in the streets, unruly northerners and a diet of bread and circuses for the plebeian masses.
Uncanny?
Come on then people…..I’m waiting for the UDI comment that usually appears in articles such as these. And well researched as well I must add.
Uhuru
will that do Barbar?
Oh good grief, here we go again.
The notion of “uniquely Scottish popular sovereignty” is a fairy tale.
The facts are that the “people” of mediaeval Scotland were no more or less sovereign than those of England at the time. Same goes for the Parliament.
You can prove this for yourself – go look at the online “Records of the Parliament of Scotland”.
As for removing monarchs – look at the history, do the math. Between 1066 and 1707, England got rid of more monarchs than Scotland did.
As for the tired old “LA v McCormick”, Cooper says precisely NOTHING about “popular sovereignty”. He DOES question “unlimited parliamentary sovereignty” – doubting whether Parliament has the power to overthrow parts of the Act of Union.
You do realise, also, that Cooper’s comments were basically side remarks to throwing out the McCormick case?
“You can prove this for yourself – go look at the online “Records of the Parliament of Scotland”.”
Sorry, that’s as useless an argument as people who say “You’re wrong – just look on Google!” Got a point to make? Tell us what it is and actually quote us the specific passage of whatever document you’re citing as proof. Otherwise shush, because telling someone the answer is buried SOMEWHERE in thousands of pages of archives makes you no more than a troll. Dissent and debate is welcomed here, trolling is not, and frankly your username gets you off to a bad start. Some of us have long memories.
“As for removing monarchs – look at the history, do the math. Between 1066 and 1707, England got rid of more monarchs than Scotland did.”
Similarly, that proves nothing without – as a minimum basic starting point – information about WHO removed those monarchs, HOW and WHY. Over to you.
I thought that the whole article was excellent,and I also thought that the reason for the very being of the SNP was for independence and as that is wrote into the constitution of the SNP,when I vote for the SNP I am also voting for independence.But now its just to run a devolved parliament! But soon independence soon the fear of standing up for ourselves shall leave the mindset,of those who still wonder at their own ability.
Excellent – so basically the door is open and just needs to be pushed. I remember Tavish Scott and others whining before the 2011 election that “a vote for the SNP is a vote for independence” (whooo, scary)… so if the 2014 referendum is not clear enough then the next Scottish General Election will settle things once and for all. Nice one.
So, were the Scottish government to eschew the offer of a Section 30 order “legalizing” the referendum, on the grounds that the conditions attached to it were too onerous, and said government was to proceed with the referendum without Westminster’s imprimatur . . .
Assuming a YES result is answered with Unionist obduracy in negotiating the end of this union, would the Scottish Government, on the advice of the Scottish people (manifest in the result of that referendum), be on solid legal ground if it then declared independence unilaterally?
Surely it would be acting upon the express will of a sovereign people who have ultimate authority – according to the self-styled UK supreme Court, and Baron Forsyth of Drumlean?
Nice article, and a good but somewhat selective case for making the claim that the people are sovereign. As in all things however it’s not that clear cut; the Prerogative Act 1661, for example, contains the phrase “…..Royall Prerogatives of the imperiall Croun of this Kingdome which the Kings Maiestie holds from God Almightie alone….” .
just saying…
“Tell us what it is and actually quote us the specific passage of whatever document you’re citing as proof.”
Actually since you’re making the positive claim, the onus is on you to find an example of the pre-1707 parliament doing something which was clearly “popular sovereignty. I’ve looked and can’t find any.
E.g the claim is sometimes made that in 1328 the parliament “adopted” the Declaration of Arbroath.
link to rps.ac.uk
Where?
“Similarly, that proves nothing without – as a minimum basic starting point – information about WHO removed those monarchs, HOW and WHY. Over to you.”
Between 1320 and 1603, Scotland had 11 monarchs. 3 of those (James I, James III, and Mary) were removed through assassination, civil war or deposition.
In the same period, England had 18 monarchs. Of which no fewer than 7 (Edward II, Richard II, Henry VI, Edward IV, Edward V, Richard III, and Jane) were removed through civil war or deposition.
To make things quick, let’s look at the Scottish examples:
James I: fell out with key nobles, murdered at Perth on the night of 20–1 February 1437 in a failed coup by his uncle and former allyWalter Stewart, Earl of Atholl.
James III: fell out with key nobles, lost and was killed at Battle of Sauchieburn.
Mary: fell out with key nobles (mostly over strumpety behaviour), fled to England, won prize for “stupidest political prisoner ever”, was executed.
Not seeing much “popular sovereignty” there. Just monarchs falling out with the tier just below. Just like in England.
“Not seeing much “popular sovereignty” there. Just monarchs falling out with the tier just below. Just like in England.”
An absence of instance does not prove the absence of possibility, though. The fact that the Scottish public chose not to depose its kings doesn’t in any way prove that it couldn’t have if it wanted to.
“The fact that the Scottish public chose not to depose its kings doesn’t in any way prove that it couldn’t have if it wanted to.”
Hang on, isn’t this discussion about the proposition that medieval Scotland had developed this “unique” idea that the “people” – not just the nobs with fancy titles and fancy hats – were sovereign?
Now you’re saying that the theory that Scotland had “popular sovereignty” is in no way called into question by the fact that the Scottish people never actually exercised such sovereignty. Curious.
It isn’t curious at all. I have the right to do thousands of things that I’ve never done.
Sophistry and diversion.
Where is the actual historic evidence for this “unique Scottish popular sovereignty” thingy”?
Go on, find some. I’ve given you enough pointers.
Oh for a written constitution.
Is that the Prof of Hootsmon raising his head with his innane witterings, trying to ignore what is for what he wishes it to be?
Prof go back to first principles, look at what is rather than what you think it should be to support your case.
Source documentation that provided the basis of this essay ranges from Micheal Lynch’s Scotland – a new history. Research on the Scottish Parliamentary roles.The historical accounts of the drawing up of the 1689 Claim of Right, the dispossession of James 7th and the establishement of a statutory contract between the crown (for ever after) and the sovereign people of Scotland. Just a wee point the Act refering to the Crown and God’s will in 1661 – its no longer extant on any list of current legislation I can see. … it was superceded by the 1689 Claim of Right.
There is Lord Cooper’s written judgement in 1953 which makes clear there is no concept of unlimited sovereignty in Scots Law because it is limited by the will of the people. The UK Supreme Court agrees with this contention in the judgement against Axa et al – a judgement that must have shriven your very soul because it ended any claim by Westminster of supremacy unless it was in agreement with the considered will of the people of Scotland.
In all legal contentions first principles always supercede presidence – no matter what you think has happened in the past. The fundamental principle is simply this: Are the people of Scotland sovereign – yes or no.
Can you point me to any act, bill or statute raised by Westminster since 1707 which over turns the fundamental right expressed in the Treaty of Union that the Scottish people are sovereign for all time. Remembering that in Scots Law ‘all time’ means exactly that. If you can, you have found the Westminster Act, Bill or statute which breaches the Treaty of Union and ends it forthwith. I haven’t yet but I am looking hard.
Mad Jock, I assume wen you are are talking about the 1661 Act you are referring to the Prerogative Act (1661) that I mentioned above and not for example the Crown Appointments Act 1661 which has wording quite similar in relation to the crown deriving its authority from god rather than the sovereign people.
It’s quite irrelevent to my point whether the Prerogative Act is still current or not. I simply pointed out that the wording of that Act contradicts the notion that from earliest times until the present day that it was accepted by the Scottish parliament that the people were sovereign. Parliament in 1661 clearly took a contrary view ( or at the very least wrote into legislation something they did not hold to be true).
I happen to believe as a matter of current day real politik that the people of scotland are sovereign, but that’s a different thing from claiming the legitimacy of that position as having some incontestable historical validity. It does the case no favours by implying that it does.
And what nonsense are you blethering about when you say “Remembering that in Scots Law ‘all time’ means exactly that” ? You’re surely not suggesting that “for all time” means that such laws can’t be changed?
[…] best to recap on sovereignty in this fine nation of ours. There’s a terrific summary here, in words that even I can […]
In my comments on the corresponding article in The Herald the other day I pointed out that, while argument about Scotland’s ancient constitution may be of historical interest, the whole issue is water under the bridge. It has all been superseded by the modern global constitution – superior law that takes precedence over anything contained in the devolution or other Westminster legislation, and under which the people of Scotland are without a shadow of doubt sovereign within their own country.
The right of identifiable “peoples” to self determination is one of the cornerstones of international law. It is emphasised right in the very first article of the United Nations Charter, which refers to the “equal rights and self-determination of peoples”. That expression resurfaces innumerable times in the hundreds of restatements of the law that have emerged over the years. It should be noted that the right is possessed by “peoples”, and not governments, parliaments or heads of state.
The sovereignty of the people is now the global norm. In some countries like the UK it is honoured more in the breach than in the observance, but the principle remains. It has been reiterated in legal statutes like the UN Convention on Civil and Political Rights and the UN Convention on Economic, Social and Cultural Rights. It is global and also European law, as expressed by the Conference on Security and Cooperation in Europe at its plenary session in Vienna in January 1989:
“(The participating states) confirm that, by virtue of the principle of equal rights and self determination of peoples, and in conformity with the relevant provisions of the (Helsinki) Final Act, all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic and cultural development. (Questions Relating to Security in Europe, No. 4)”
The Scots’ qualifications for exercising the right of self-determination under the United Nations rules are overwhelming. They can be read in “Scotland’s Status as a Nation” in the International section of the SDA website: www.scottishdemocraticalliance.org.
This right has already been exercised, when the present devolution system was introduced under international diplomatic pressure including the threat of sanctions. Tony Blair’s Labour Government was powerless to stop devolution, despite some pretty underhand attempts to kill it. The story, entitled “Devolution and the Labour Myth” can be read on the SDA website in the International section under Scotland in Europe.
By all means let us study our history, including the attempts of some later Stewarts to act under the assumption of the divine right of kings, but don’t become too carried away with the past. A lot has happened in the meantime. We don’t need to rely on historical examples to demonstrate that the Scots are now sovereign within their own land with an undeniable right to decide their own political, economic, social and cultural future. Asserting our rights in this respect is perfectly in tune with the realities of the world around us, and the international community will certainly come to our assistance if need be.
Whilst I am delighted that both ancient national law and modern international law both support the idea of independence, I also thought that Cameron had already conceded the referendum to Hollyrood and had, just about, agreed the timetable. Previous issues about oversight were just about done and dusted.
The ‘last hurrah’ by the Chairman of the Scottish Affairs Select Committee appears, to me at least, to be farting against thunder.
@ Dr James Wilkie
We covered the modern international politics and the UN here:
http://wingsland.podgamer.com/weekend-essay-the-right-to-decide/
I hope this is what you are looking for
As far as I can see, just one minor mistake (and it is minor). The line where it says
which the early Scots kept during their integration with the Picts in the 7th and 10th centuries
Basically, there was no Scots at this time. They were ‘Gaels’ from the west coast kingdom of Dal Riada (basically most of Strathclyde, and they ruled from Dumbarton Rock).
When the Kingdom of Alba finally came into being, it was the integration of Gaels and Picts that forged the beginnings of our nation, and thanks to the Gaels taking on Christianity, it meant they used the written word. The Picts didn’t have written words for things, but used pictures and symbols, hence why, we know more about the Gaels, and not a lot about Picts, thanks to the Gaels being able to write.
But apart from that …an absolutely excellent article by Peter. In knew a good deal of it, but Peter has brought me up to speed with new pieces of information. Some researching this weekend to further the knowledge I think. Thanks again, Peter!
SM753
To be honest, I think there is a world of difference between how the early medieval royal families of England and of Scotland lived under the ‘divine right to rule’.
Firstly, England was ‘conquered’ by the Normans in 1066 which meant that as a subjugated people, they fully answered to first, their Norman overlords, and then eventually to House Plantagenet. This meant that the people had no way to remove their King. Any insurrection was quickly crushed, and the Normans enforced their rule with real brutality. For example, anyone caught acting against the Crown would have their hands and feet chopped off before being passed back to their families alive. The family now had to care for this person forcing absolute misery on them. Anyone else seeing this would have the fear put into them. There was never a real uprising against the Crown and the Normans. There was riots but no civil war.
Scotland was never ‘conquered’ by the Normans. They were invited in. And since Scotland was not a subjected people, it meant that the nobles could judge their Kings on the principle of how they acted. Both may have had the feudal system and had Norman overlords, but it a completely different system of ruling that existed between the two countries.
Secondly, while England deposed house after house with first the ending of the houses of Plantagenet, then Lancaster, York, Tudor, before eventually receiving the Stuarts, Scotland always had the ‘Stewart’s’ (or ‘Stuart’ after Mary, Queen of Scots returned from France). Simply put, Scotland lived under one royal household while England swapped them like playing cards! Yes, you may point out that some of our Kings were deposed …but the house of Stuart remained in place! So it could be pointed out that Scotland could decide to remove the Kings without damaging the line itself. That implies sovereignty; to decide to remove a King (or Queen) and replace them with the next in line. It meant that ‘divine right to rule’ did not apply in Scotland!
So personally …I think your argument is wrong.
It will be in next Mays Scottish parliament elections When we get the best chance of independence by voting for the snp in the local elections and the more snp ministers returned will give a mandate for a referendum and this time the vote will be a resounding YES
I contacted, directly, Scotgov recently and asked them outright if we still have Sovereignty. They replied saying yes, definitely!
Our Monarch is normally portrayed as Queen Elizabeth the second. As Scotland never had a Queen Elizabeth the first does this not invalidate her as our Monarch anyway?
[…] be managed accordingly – after all, it is by no means certain that the UK Supreme Court will decide against the Scottish […]
Just read this – could it be used for an independence bill via the Scottish Parliament as suggested by Tommy Sherdian if he was voted in?
If so – what are we waiting for?
Had a post go astray… Either that or I’m under moderation…
Can anybody answer me this?
Why are we going through all the rigmarole of negotiating with Westminster and tying Scotland’s Independence onto the back of Brexit?
The Declaration of Arbroath, and the 1689 Claim of Rights enshrines Scottish sovereignty with the people of Scotland. For all that it is arcane, it is still competent, binding law. In England, sovereignty comes down from God, to the monarch, to the parliament, and bestowes power upon the parliament to rule the people, but in Scotland, it is different. Sovereignty does not come from God, it resides with the people and power comes from the ground up by popular consensus.
We, the people of Scotland hold our own sovereignty, and we hold it in perpetuity. And interestingly, we would still do so, supposing neither Westminster’s parliament nor Holyrood even existed. Our sovereignty is bigger than both and older.
Remarkably little fuss has been made over the UN recognising the Declaration of Arbroath which has just been awarded UNESCO status as a “Memory of the World”, and we really should be paying a lot more attention as to why the Declaration of Arbroath is so often quoted as the blueprint for so many National Constitutions. It is the mother of all trump cards.
In critical essence, the Declaration of Arbroath bestowed sovereignty onto the people of Scotland, permanently and in perpetuity. It cannot be removed from us by Monarch, parliament, or law. It is the fundamental essence of Republicanism, but way, way ahead of its time. (The definition of a republic being a Nation state where the common people enjoy popular sovereignty). This is not bizarre archaic paperwork of obscure significance, the potency of the legislation was tested in law, and recognised by the UK’s Supreme Court in 2011 which declared it did not have the jurisdiction to overrule the sovereign voice of Scotland’s people. That is 700 year old Scots Law still holding its full potency today.
The Parliament of the U.K. has from the outset administered government the English way, where sovereignty is a top down principle, but this is, and always has been inconsistent with Scotland’s bottom up sovereignty. What that means is that even though Westminster acts as our sovereign government, it actually holds no sovereignty over us, and it never has.
We have all the legislation we need to be an Independent nation. We already are, because sovereignty is ours and cannot be taken from us. It is that issue of sovereignty which defines us as a nation, and it is beyond the reach of Westminster.
Westminster’s authority to govern us is built upon a fundamental lack of understanding of Scot’s law, and even if we proceed down this path of Brexit, Independence referendum or UDI, it is all a superfluous pursuit because sovereignty has never left the people of Scotland in the first place. We are going through the motions of winning back something which was never lost.
Because we cannot abdicate our popular sovereignty, nor transpose it onto someone else, the Scottish Parliament might be our seat of government, but it can never be our sovereign seat of government.
This applies to Westminster, Holyrood under devolution, but also Holyrood’s authority in a newly Independent Scotland. None of them can usurp sovreignty from the Scottish people.
We should be very careful that we do not build our newly independent Scottish Parliament upon the same flawed presumptions as the current UK parliament, or it can all be undone the moment some smart cookie contests it’s sovereignty. Something we sovereign Scots perhaps should have done to Westminster a long time ago…
I’m not altogether sure why we pursue this circuitous route to secure Independence democratically, when our independence as a nation was enshrined in law 700 years ago by republican principles permanently enshrined in Scots law. We don’t need democracy to confound The 1707 Act of Union, all we need is for Scots law to be applied and our perpetual, popular sovereignty recognised.
This is a good read from a certain website which likes to punch above its weight… Apologies if I muck up the link.
wingsoverscotland.com/weekend-sovereignty-for-dummies/
Wow. Blast from the past from sm753 there. I remember him upbraiding me for getting a Latin quote wrong; and fuck me, he was correct. A pedant’s pedant who kind of misses the point of what he reads, but doesn’t miss a misplaced comma.
Good taste in music though.
@ BigMac.
It was suggested by Winston Churchill that future British monarchs should be numbered according to either their English or Scottish predecessors, whichever number is higher.
Which is why you’ll never see a wee royal called Alexander or James…
We will have a vacancy for a new monarch in the next year or so.
If we are to have a monarch, I would like to see the choice put to the popular vote of the Scottish people.
Invite any potential candidates in the royal line to put their name forward and we can settle it by acclaim. Of course, they would have to publicly support independence. 🙂
However, I’d prefer to see no monarchy at all. No one in Scotland should be more equal than anyone else on the basis of birth.
Yer but…
What about that Melanie Phillips’ article…
That the United Kingdom pre-exists Pangaea? I think that’s what it said…
😉
At least somebody knows what is the real position.
I loved reading all this about our sovereignty of the Scottish People. What I cannot understand however is why then does the Devolved administration of Scotland not simply give notice that we will be withdrawing from the Union at a given date?
So as I read the article: The Scottish Parliamentarians at Westminster as continuing representatives of the Pre-Union Scottish Parliament could at any time of their choosing create an Act dissolving the Union as is their mandate.
Nicola is a lawyer I’m sure she is aware of this.
And this has given me anewed hope.And I agree in history we
Need a scottish centred curriculum
Excellent and hope you have sent this to Nicola and John Swinney.
“Constitutionally it can be argued that as Westminster is a parliamentary democracy where the Royal Sovereignty is held within that parliament – anything the parliament at Westminster decides in the monarch’s name with respect to Scotland, but which the people of Scotland oppose, could in fact cause the monarch to be removed from her Scottish crown”
That’s interesting, does this mean that if/when Brexit happens, which the Scottish people have voted against, Lizzie will either have to abdicate the throne of Scotland or refuse to ratify parliament’s decision?
Bit hazy over the procedures but curious, can anyone clarify what impact Brexit may have for the monarchy in Scotland?
I am not a lawyer Michael but I am interested, as you seem to be, in exploring the avenues that can be kept open by continuing discussion of ways in which the Sovereignty issue can be used in the drive towards Independence despite the date on this article.
Unfortunately though the answer to your point, “..if/when Brexit happens, which the Scottish people have voted against, Lizzie will either have to abdicate the throne of Scotland or refuse to ratify parliament’s decision?..” will be found by the lawyers, I am fairly confident, in the wording of the actual EU REF question. This asked if the UK should REMAIN in EU or LEAVE EU. There was no mention of Scotland in there. Had there been your point would be very strong IMO. For all that I know your point might still be sufficient and I hope that it is. But I doubt it.
“anything the parliament at Westminster decides in the monarch’s name with respect to Scotland, but which the people of Scotland oppose, could in fact cause the monarch to be removed from her Scottish crown”…yes please
I think we should be prepared to accept the sovereignty granted by the Divine Right of Kings by Almighty God.
Naturally we would want to see the proof in the shape of the signed document first.
I’ve always wanted to see the Almighty God’s signature…