Tuesday, 17 January 2012

The biggest con in history.

Lord Wallace of Tankerness while discussing the legality or in his learned view illegality of the Scottish government applying democratic principles without Westminster’s permission, stated 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 gives every appearance of walking on quicksand. There are various degrees of law, with UK law decidedly subordinate to international law. Westminster has affirmed this by agreeing to multiple treaties.

Arguably UK law is subordinate to Scots law; the Union Treaty 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 vetoes is simply a happy all round 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 polarized 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; however it is 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 realised 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.

Articles 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 give every indication of irrelevance 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.

Article 3.

This clarifies for us a situation which is perhaps one of the biggest con’s in history. That for almost three centuries Westminster has managed to convince many, if not most Scots that the nation, 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.


  1. Wow very informative. Well done!

  2. I'm no constitutional lawyer, Hazel, but this and subsequent passages from Tom Devine's 'Scotland and the Union' always seemed important to me -

    page 3 "After 1707 the threat of 'the elephant' looomed closer in the form of the English constitutional principle of the absolute sovereignty of 'the Crown in Parliament' Potentially this dictum was the most lethal threat to the new association."


  3. Also -

    "Given the dramatically different levels of parliamentary representation ---- this constitutional assumption could imply the impostion of unacceptable policies by Westminster on Scotland. That this was not simply a theoretical possibility became brutally clear very quickly."

    We now have its apotheosis - a Coalition Government with no Scottish mandate trying to frustrate, neuter or gerrymander our referendum - with Labour craven cooperation in a sordid, self-interested alliance made in hell.


  4. Hazel, you have just provided me and many others with very valuable ammunition in our future Independence discussions. May I restate my undying love for your brain which, should Bill ever relinquish such claims to it as your own Act of Union permits, I would cheerfully run away with. If the rest of you came with the brain, I suppose I should shrug and put up with that too :0)
    Bob Leslie

  5. God bless you Hazel and much power to your keyboard, that is the most significant piece of writing I have read yet on our country, you are a gem.

  6. Educational post, Hazel. Thanks for putting so much work into it.

  7. Highly impressed. I knew I was right but didn't know why. You have now made that clear. I am now going to do a UK on you and reserve the right to claim it as mine ;-)
    By the way, were you banned from newsnet Scotland too?


    because I haven't seen you on there for a while?

    1. No, had one in recently, and this one is supposed to be going in tonight, but they don't publish everything I write and/or send them!

    2. I haven't been on for a while but saw this article today.

  8. This is an interesting piece though I do think there are some dodgy assertions within it.

    First of all, you cannot de facto give the present devolved parliament, created by an Act of the unified parliament, the status of a representation of the sovereignty of the Scottish people. The parliament, its powers and its elections are all the result of UK legislation. The fact that Winnie Ewing's words were not challenged by Westminster adds no credence to this assertion, as I suspect you would acknowledge. Therefore the present "Scottish Executive" (as defined in the Scotland Act) cannot act as if it were a sovereign Scottish government, no matter that it has chosen to refer to itself with those words.

    Second, the idea that the Scottish nation remains extant but in a dormant state is difficult to justify given the 300 year history of Westminster sovereignty over Scotland, and the multitude of UK legislation passed in that time which altered the terms of the treaty of union in all manner of ways.

    The Scotland which passed the treaty of union no longer exists, and certainly cannot be said to pertain in the person of the present Scottish government.

    All that said, the idea of a referendum focusing on article 3 is a fascinating one and I'd be interested to hear more views from the union side of the argument on that prospect.

  9. Oh, one other thought - the 1707 parliament which ratified the treaty of union was not a representation of the sovereignty of the Scottish people either.

    1. So glad you at least admitted we were coerced by greed into this now defunct union.
      I continue to stand by my arguments in regards to your previous comment. International law shall be the decider, not Westminster.

    2. I don't remember saying that. :-)

      I would rather hope that the people of Scotland will be the decider. Sad to see both sides digging in for a court battle if things go against them in a free vote.

    3. "the 1707 parliament which ratified the treaty of union was not a representation of the sovereignty of the Scottish people either" ... your words.
      No it wasn't representative of the wants and desires of the people ie: forced upon them, aka coercion.
      It was brought about as the result of bribery and corrupt persuasion by the then London establishment and accepted by penniless Lairds and knights of the Scottish realm, who'd lost it all on Darien. The toons and burghs, however were in good fiscal health. I believe we all know this crowd as "The Parcel O' Rogues".

    4. Oh, and let's remember, we aren't discussing the seedy manner on how we were dragged kicking and screaming and rioting in the streets into this unfair union.
      What we are discussing today is the best way to exit it. So let's not get bogged down in history please. We should try and stay in this century and talk about how badly this union is serving Scots today.

    5. Yes, I know it's an auld song, but the reason I made that point is that your argument hinges upon the sovereignty of that 1707 parliament at the time it signed the treaty of union, and your assertion of the lack of sovereignty of the UK parliament in Scotland subsequently.

      So either the treaty of union is void because the 1707 parliament was not sovereign, or your whole argument about where sovereignty lies seems to fall apart. I'm sure you'll explain where I am mistaken.

    6. I have NEVER asserted that the Scottish parliament was or is a sovereign body. Its function is to reflect the Sovereign will of the PEOPLE, therefore the gift of sovereignty was never the parliament's to give. Although it is arguable that the endorsement of a treaty of union protecting Scottish Law, religion and rights, and thereby Scottish Nationhood may have been within its remit.
      As to any other aspects of your arguments, I'd be delighted for you to scan the Treaty of Union and show me where it clearly states that Scots Law, the Scottish constitution, the sovereignty of the individual or the existence of the Nation are declared ended. Absent your ability to do this, my argument stands and therefore this dialogue is ended.

    7. Pure sophistry. You discredit the 1707 parliament from validity, but as your argument hinges upon it, gift it with the right to sign the treaty in question. It simply cannot be both.

    8. In view of your self-evident failure to provide firm language from the treaty in response to my simple requests, we shall agree to disagree as we enjoy watching Scotland marching back to restoration of her full powers.

  10. Interesting read. Also enjoyed it so thanks. There are a few leaps made though...
    As already stated the idea that westminster didn't challenge Ewing's wording some makes it so is probably wide of the mark.
    Also, again as already suggested the 1707 parliament was not representative of the people...as most did not have the right to vote, so the current parliament is not comparible.
    It would be interesting to see your suggestion about article 3 thrown into the debate though...

    1. See banter above.
      Please research legal positions surrounding her comments of the time in which the opinion was raised she had indeed opened a can of worms for Westminster regarding the "Reconvening of the Scottish Parliament".
      And please Google them yourself, they are easily found if you have the will, and that way you don't just have to believe me.

  11. I insist that the United Nations Charter makes the limitations on the Scottish Parliament essentially voluntary.
    Throughout history Governments have made laws which were intended to cement their position constitutionally and throughout history nations have just walked away.
    Just a well the members of ANC didn't get tied up in S. Africa "laws" or the peoples of Estonia, Latvia and Lithuania pay any attention to USSR "laws". All this legal meandering is essentially bluff and bluster. The Westminster Irish MPS walked into the Mansion House in Dublin in 1919 and declared Ireland independent. I believe the Scottish Parliament is entitled in the eyes of the international community to assume any powers it wishes to on the agreement of and on behalf of the sovereign Scottish people

  12. I think that unlike Scotland where the new country of Great Britain was accepted and was tried to live up to.England used it as a way an insidious way of retrying to conquer,Scotland and it has now caused the problems that has forced the growth of the SNP,(I am a member and I also seek independence)and the re-awakening of the Scottish psyche and it will only grow stronger until we do resume responsibility for ourselves.