by Peter Thomson
On the 27th of January Brian Taylor of the BBC wrote that Westminster was sovereign over Scotland, as like most Scots that is what he believes. In my previous piece ‘Whit’s Liz’s number agin’ I showed that the people of Scotland remain constitutionally sovereign as established in the Claim of Right of 1689 which itself merely reaffirmed the original letter to the pope in 1320 which in turn was written into Scots Law in the first of Bruce’s Parliament of the Estates in 1328.
Why is this apparently archaic bill of the late 17th century important as Scotland staggers on towards full fiscal autonomy and the inevitable break up of the Union?
The reason is simple: the bill set the ground rules for the relationship between the Crown and its parliament at Westminster and the people of Scotland. Further, unlike the English parliament who simply had to hope James VII and II would see sense, take the cash on offer and abdicate, the Estates made clear that James VII was getting the boot. The bill clarified why the Estates and the people of Scotland had the sovereign right to do so.
This bill further inhibited the ability of Scottish Crown or nobles to influence parliamentary bills and Scots Law, especially the church estate, through patronage. The Scottish Crown and nobles lost control of the parliament for the next ten years. The impact on William was that his army, if placed in Scotland, would be there at the English Crown’s expense because Scots Law prohibited the raising of a standing army and its funding, provision and garrisoning in Scotland in time of peace. In the run up to 1707 the same argument was raised against the English Crown and its standing army which was using Scottish regiments (raised for ‘home’ protection) in English Continental wars against the wishes of the Estates, to the peril of Scottish commerce with the Low Countries and the Hanseatic League.
In turn this caused concern in Horse Guards, the London headquarters of the English army, where English generals were again worried that Scotland could once more become a back door for the French, as Ireland had been during the uprising the previous decade, and had been feared nearly 150 years before when Mary of Guise was regent in Scotland. It is in this context that Malborough’s calls to Horse Guards for troops to be placed near the Scottish border should be viewed. It also allows us to understand why reinforcements were to be prepared in Ireland – although Malborough would have preferred these forces to be deployed in continental Europe or to remain in Ireland in order to hold down the ethnic Irish population. The 1689-91 Irish Jacobite rebellion was still fresh in the English army commander’s mind.
For the Scots the 1698 Claim of Right restated that sovereignty lies with the people of Scotland, whereas the equivalent bill in England stated sovereignty lay with the Westminster Parliament. This is a subtle but important point.
For the Crown the Claim of Right ensured there was no Union of the Crowns. In order to keep the Crown of Scotland, the Crown had to swear a separate Scottish oath to the Estates as representatives of Scottish sovereignty. It is telling that the Bill makes clear to William that he and his successors could lose the right to the Crown of Scotland if at any time they breached the statutes in the bill:
“Haveing therfor ane entire confidence that his said Majesty the King of England will perfect the Delyverance so far advanced by him and will still preserve them from violation of their Rights which they have here asserted and from all other attempts upon their Religion lawes and liberties.”
It was interesting that in 1973 the Crown held that under the oath sworn to the sovereign people of Scotland, it could not allow the reduction of their lands known as the Kingdom of Fife to be subsumed into the super-regions of Tayside and Lothian during the reorganisation. Fife stayed Fife with a degree of unity of purpose not seen in the many strange constructs which Wheatley’s Royal Commission Report created and which were only partly resolved by the 1991 restructuring.
In terms of both the 1698 Claim of Right and the Union Treaty, the 1973 Local Council Bill (Scotland) breached both. According to the Claim of Right: “By Subverting the right of the Royal Burghs, The third Estate of Parliament imposeing upon them not only magistrats But also the wholl toune Councill and Clerks contrary to their liberties and express chartours without the pretence either of sentence surrender or consent.’ Meanwhile Article 21 of the Treaty of Union states: “That the Rights and Privileges of the Royall Burroughs in Scotland as they now are, Do Remain entire after the Union, and notwithstanding thereof.”
I have tried to find where within the Laws of Scotland that the rights expressed in both the 1689 Claim of Right and the Treaty of Union have been abrogated or repealed. I discovered that the 1689 Bill of Rights is ‘entrenched’. This means that these Bills and Treaties are embedded into Scots Law, to change, repeal all or any part of the Claim of Right or the Act of Union requires a referendum to be held under the requirements of the EU and UN Human Rights Conventions. There was no referendum held to consent to Westminster’s subsuming Scottish sovereignty, so the removal of the rights of Royal Burghs in Scotland is just one of many examples of the Parliament at Westminster exceeding its statutory rights by ignoring the constitutional reality that is Scottish sovereignty, entrenched in Scots Law.
As a signatory to the EU Convention of Human Rights, Westminster enacted primary legislation but found it difficult to bend the convention to their wishes. The UK Human Rights Act 1998 makes it very difficult to prove that primary legislation breaches an individual’s or group of people’s human rights. Where primary legislation is in breach of the 1998 Act or the EU and UN Human Rights conventions, there is no way of forcing the UK Government to change except by challenging the Act or Bill in court. In this instance that would be the Court of Sessions in Scotland. If the court finds in favour of the plaintiff then it will issue a Declaration of Incompatibility. This still does not force the UK Government to change any part of the act, but represents public pressure for changes to be made to the primary legislation or for the introduction of secondary legislation to address the breach of their rights. Failure of the UK Government to do so means that any appeal to EU Human Rights Court in Strasbourg is likely to be successful and the UK Government should then swiftly correct the breach – if not they leave themselves open to EU sanction.
What could happen can be inferred from the case of McCormick v. the Lord Advocate. The case centred on the numbering style of the monarch. The court ruled it was part of the Royal Prerogative as to how the monarch was styled but conceded the more important point given by the Lord President, Lord Cooper, that :“the principle of unlimited sovereignty of Parliament is a distinctively English principle and has no counterpart in Scottish Constitutional Law”. Further, “the Lord Advocate conceded this point by admitting that the Parliament of Great Britain ‘could not’ repeal or alter [certain] ‘fundamental and essential’ conditions” of the Act of Union (MacCormick v Lord Advocate 1953 SC 396 at page 411). Thus we can presume that like the 1689 Claim of Right, the 1707 Act of Union is also entrenched in Scots Law, as are the protections both the bill and the act offer Scots against abuse of their sovereign rights by Westminster.
So it could be that as the proposed amendments to the Scotland Act 1998 directly affect the sovereignty and realm of the Scottish people, any such imposition by Westminster would be contrary to the EU Convention of Human Rights. And as the people are sovereign, any Scot who believes that the amendments or conditions already in the Scotland Bill 1998 remove our sovereignty would be entitled to seek a Declaration of Incompatibility in the Scottish courts prior to seeking judgement from the EU Court of Human Rights.
I have no legal training, as such, but have been involved in implementing quality standards and legal requirements within health care for 16 years as a consultant and ISO 9000 Certification Auditor. In terms of my experience I would consider I have enough objective evidence to say that the Scotland Bill 1998 and the proposed amendments currently being ‘ramrodded’ through Westminster at this current juncture, in unseemly haste, are non-conforming with respect to what I understand to be the written Scottish Constitution, which is entrenched in Scots Law and not open to Westminster alteration without the agreement of the sovereign Scottish people.
If there is no referendum on these amendments (which impinge on everyone living within the Scottish Realm) the amendment bill as currently being construed can be deemed illegal in Scots Law as it is being imposed without the expressed agreement of the sovereign people and is contrary to Scotland’s entrenched constitution.
For Moore to claim that these amendments ‘are the settled will of the Scottish people’ puts him up there with James VII in terms of the 1698 Claim of Rights in that he is condoning the following breach of that bill:
“That the Imprisoning persones without expressing the reason therof and delaying to put them to tryall is contrary to law.”
So Moore’s support of Control Orders will do for a start.