Constitutional crisis


by Peter Thomson

So here we are in Scotland with voters who have achieved what we were told was impossible – a majority government at Holyrood. Even worse for Westminster it is not the Unionist ‘majority’ that Dewar’s cunning plan presumed when Lord Forsyth’s prescient comment on the potential impact of such a thing as an SNP majority being Scottish Independence – you can detest the Thatcherite Forsyth all you want but at least as a past Secretary of State for Scotland he had a full understanding of the constitutional impact on the UK if the impossible happened and it was an SNP majority.

His voice was the siren call in February telling Westminster that Brown and Wendy Alexander’s Scotland Act Amendment Bill being pushed through by Cameron is the ‘midwife of independence’. Scottish Tory grassroots agreed with Forsyth but, like Labour CPs in Scotland, they were told London knows best and this time the SNP would be dead in the water, so they should just keep quiet.

John MacTernan boldy went on Newsnicht Friday 6th May, after Labour’s biggest electoral disaster in 80 years, to claim that London Labour were right, the negative campaign they had decreed would have worked but the party in Scotland did not have the ‘sophistication’ to carry it off. Further he said that there was no way Salmond would be able to have a referendum without Westminster’s permission.

The papers on Saturday and Sunday were full of how the UK Parties would still ‘Scotch the Scotch’ over the Independence referendum and then on Sunday this unbreachable, constitutional ‘Berlin Wall’ fell at the first gentle push by Wee Eck with Cameron and Moore falling over themselves to agree that opposing any such referendum would not be sensible in the light of the result on Thursday.

That left Westminster bubble papers like the Sunday Times, Mail on Sunday and the Telegraph looking just a bit stupid with their inside line on how the SNP were going to be thwarted by being jumped by a Unionist controlled referendum from the likes of Mundell on the front covers. while inside the actual capitulation was revealed in full.

As many know I have taken an interest in the constitutional basis for the Union Treaty and the impact of Westminster’s line that ‘Union’ was a defacto ‘take over of Scottish Parliament by the English Parliament’ and therefore only English Constitutional norms are applicable to the parliament at Westminster. So ingrained is this way of thinking amongst those in the Westminster bubble that they believe they are right in this presumption.

Yet the Megrahi Case showed their presumption of the primacy of Westminster to be flawed because by trying to subvert Scots Law – as Blair and Brown did – they were attacking the very corner stone of the Scottish Realm and directly attacking the protector of Scottish sovereignty. Luckily we had a First Minister, Justice Minister and Lord Advocate who were willing to tell Westminster to get their nebs out of sovereign Scottish business rather than the standard Unionist poodle of old.

The new situation at Holyrood now hoists the Unionist parties on a petard of their own devising. Calman was forced through on the basis of: though the SNP were the government the Unionist Parties represented the settled will of the Scottish people by their majority at Holyrood, thus it was right and proper as they represented the wishes of the sovereign Scottish people.

So how can Westminster now claim that the sovereign people of Scotland are represented by the Scottish Grand Committee – under a Liberal Secretary of State for Scotland in a coalition with the Conservatives, who combined managed under 18% vote share on the Holyrood list vote – the majority vote in Scotland has a predominance of the SNP in the first past the post constituency seats and a 56% vote share on the list for independence supporting parties – they can not and to do so will only damage the case for the Union of equal partners further.

The constitutional crisis for Westminster is only now beginning as there are a number of discrepancies between what is being done and has been done at Westminster in respect to Scotland and issues that the Union Treaty stated were protected for all time. The first area for challenge is Section 27 of the 1999 which claims parliamentary sovereignty over the Scots by reserving constitutional issues for Westminster. As the Scottish Parliament was reconvened in 1999, after its temporary suspension in March 1707, it is clear that in Scots Law the Scottish people’s sovereignty lies at Holyrood and not Westminster. It is also clear in Scots Law given the legal argument of the Lord President of the Court of Session in 1953, conceded by the Lord Advocate that the words ‘for all time’ contained within the Union Treaty meant just that.

This technically makes the reduction and removal of the rights of Scottish Burghs in 1973 illegal without a referendum of the sovereign Scottish people. Neither Westminster nor the Scottish Grand Committee had the right to enact the council reorganisation legislation in the form they did in 1973. A fact determined by the failure to split the ancient Kingdom of Fife between Tayside and Lothians. The ‘Crown’ opposed this split as it agreed with the petitioners for Fife that to do so would be a direct attack on the freedoms, traditions, liberties and laws that Scots hold so dear. Westminster ducked the issue, left Fife alone and avoided a series of legal challenges that could have wrecked the 1973 Bill.

Since 1714, when Lord Selkirk’s Bill to dissolve the Union was talked out by the Tory Party of the day, Scots have fallen into the trap of assuming Westminster was always right even when it was very wrong. Antipathy amongst our Scottish parliamentarians, more interested in themselves and the furtherance of their careers than Scotland, has allowed this assumption of only English based constitutional practice at Westminster to become the accepted norm, yet this not what the Treaty of Union envisaged in a Union of equal partners, nor, as the Lord President pointed out in 1953, has the presumption by Westminster of holding Scottish sovereignty any constitutional or legal basis in Scotland.

So time and time again when Westminster is faced with a potential legal challenge on an issue that directly affects the sovereignty of the people of Scotland they back down, because in the 21st Century, for Westminster to face such a legal challenge at the ‘International Court of the Hague’ over the issue of where Scottish sovereignty lies, will destroy the Union faster than Wee Eck can eat another pie!