by Hazel Lewry
Lord Wallace of Tankerness, while discussing the legality, or in his learned view the illegality, of the Scottish government applying democratic principles without Westminster’s permission, stated the rule of law should and must prevail.
Significantly his perspective was one of outlawing, or stopping democracy as being unlawful, at least with respect to a Scots poll. For many reasons Holyrood can never allow the precedent of Westminster deciding this. It might be difficult if not impossible to undo.
We must agree with Jim Wallace, the rule of law should be paramount. In this the ermine clad lord was undoubtedly correct, but there is a significant exception in any functional democracy.
The sovereign will of the people must take precedence over the law of the land, for in its most basic terms the law exists only to serve the sovereign will. That expressed will should also operate within international law.
This is where Scots and English exist under two entirely different systems. This difference between individual and parliamentary sovereignty is so significant, so fundamental it amounts to a square peg being bashed into a round hole.
In using the rule of law to challenge the Scottish Government’s plans Lord Tankerness is walking on quicksand. There are various degrees of law, with UK law decidedly subordinate to international law. Westminster has affirmed this by according to multiple treaties.
Arguably UK law is subordinate to Scots law, the Union is after all sworn to protect it.
The question to be examined is a simple one indeed, does domestic law or international law hold force majeure or domain here, and can we easily define the reasoning behind the arguments being used by either side.
International law is very clear about national territorial integrity, it’s also very clear about the rights of peoples to self determination. The Wallace and Cameron interpretation appears to be that Scotland falls under domestic territorial law, like Yorkshire or Sussex. They have failed to publish evidence for this assertion.
The Scottish government and the EU appear just as clear that the poll falls under international law.
The fact that the EU is effectively siding with the Scots government on this issue may be an indicator for Wallace and Cameron, except they seem incapable of understanding even language as direct as “an independent Scotland would need only a simple majority to enter the EU”. Europe certainly isn’t entering the fray directly yet, but it does appear to be lacing up its gloves in preparation.
The clear inference here from the EU is that Scotland’s referendum is Scotland’s right as an ancient nation. The fact it might also reveal some of the machinations of internal EU politics regarding certain vetos recently exercised is unlikely to be simply a coincidence, unless your name is David Cameron.
The legality aspect above also has a fundamental bearing on the upcoming referendum in the autumn of 2014. For many it’s about independence or union. One side is determined to have it, the other initially to stop it, now to control it.
There are stalwarts on both sides, trying very hard to sway as many to their cause as can be managed. These issues are also both tied into the domestic-international argument.
In the referendum campaign it’s relatively simple to eliminate these polarised positions and eliminate the need for a referendum on independence or union at all. It simply takes the effort of those concerned to realize that there’s only one reason a constitutional poll is upon us.
It’s because of what happened in 1707. We all agree on it, but few among us seem to understand it fully.
What happened in 1707, then again in 1999, settles the national / international aspect of the legal argument. It also clarifies the stance of adherents or antagonists to either cause.
In 1707 we had the bilateral Treaty of Union. It was between two nation states.
International law clearly acknowledges that bilateral treaties can be ended by either signatory with proper notice. If they couldn’t it’s highly unlikely any country would ever sign up to one.
The Union treaty contained twenty five articles, condensed and summarized here.
Article 1 was specifically about the name of the new kingdom, to be Great Britain. Article 1 is worth noting because the name has been changed more than once, this original amalgamated kingdom no longer exists. The Union parliament also had no clear authority to change the articles of Union, only the constituent nations could do that.
Article 2 provided for the succession of the House of Hanover, it’s void because the House of Hanover is defunct.
Article 3 provided for the creation of the one, unified, parliament of Great Britain. Article three is the crux of the matter, it must be repealed, reaffirmed or renegotiated.
Articles 4 through 15 and 17,18 gave subjects freedom of trade and navigation as they equalized taxation and duties, if we’re both members of the EU or EFT it’s automatic.
Article 16 required the introduction of a common currency for Great Britain, subsequently effected through the 1707-1710 Scottish recoinage. Leaving article 16 in place, Osborne’s attempts at scaremongering over usage of the pound are somewhat irrelevant.
Article 19 provided for the continuation and protection of Scotland’s separate legal system. Article 19 appears to be fine right where it is.
Article 20, 22 and 23 provided for the protection of offices for life, parliamentary representation and the rights of peers of the realm. These articles certainly appear to be irrelevant without article 3, though possibly not to such as Lord Tankerness.
Article 21 simply provides for the protection of the rights of royal burghs.
Article 24 provided for the creation of a new Great Seal for Great Britain.
Article 25 provides that all laws of either kingdom that may be inconsistent with the Articles in the Treaty are to be declared void. Again it hinges on article 3.
Summing up there’s only one significant area needing attention.
This clarifies for us a situation which is perhaps one of the biggest cons in history. For almost three centuries Westminster has managed to convince many, if not most, Scots that the nation of Scotland effectively ceased to exist in May 1707.
It didn’t. Scotland simply ceased to have independent global representation. It devolved statehood, as did England. It did not relinquish nationhood.
The treaty noted above simply created one new state from two existing nation states, there is nothing in the treaty about abolishing the constituent nations. The nations therefore continued although the states were suspended.
The critical aspect is that for Scotland at least, the individual independent functioning of the state was adjourned or suspended, not ceased for all time or closed permanently.
That is the functional legal difference between Scotland and Yorkshire or Sussex.
As a nation Scots were always at liberty to resume the condition of nation state. They simply had to discover a voice.
That was made clear when Winnie Ewing re-opened parliament in 1999 with the words “The Scottish Parliament, adjourned on the 25th day of March in the year 1707, is hereby reconvened”. These words were not contested by Westminster.
The first significant part of the restoration of Scotland to statehood arguably took place in 1999.
“Reserved” in the Scotland Act is therefore simply a word, a word that has no worth in international law. Under international law, in theory, the Scottish Government could at any time and with proper notice withdraw from such sections of the Treaty of Union as still have relevance, namely article 3.
That the Scottish government are looking to do this by additional democratic mandate is beyond fair and reasonable, that they are being threatened with prevention is a self evident contravention of international law and policy, a breach of the United Nations charter to which Westminster is a signatory and a breach of the Vienna Convention on treaty law to which Westminster is also a signatory.
The fact that the treaty was implemented prior to the convention does not remove Scotland’s ability to revoke or re-open it. It simply means any amendment must be in accordance with current international law regarding international treaties.
The Scottish Government, couching this poll in the language of an independence referendum seems ridiculous, in its most simple and basic terms it’s an international treaty renegotiation or termination.
The only beneficiary of the independence referendum terminology is Westminster; it improperly legitimizes the claim of dominion in the minds of many.
The Scottish constitutional poll should be about the 1707 treaty, specifically article 3. It should perhaps be a three option referendum; it just might be the questions now proposed are the wrong questions.
If it were to be a three part poll, it should ask if we strike, amend or affirm the current status of the Union Treaty with regards to section 3.
To strike article three of the Union Treaty would inherently restore all sovereign parliamentary powers to Edinburgh. Everything else opens for negotiation afterwards.
Such a question would force examination of the history of the Union, current benefits and detractions, but most importantly it would be clear, concise, lawful, and democratic, dealing directly with the reason Scots find themselves in the situation they do today.