Part 1: Why Scotland doesn’t actually exist, and hasn’t since 1707.

 

Part 1:

I have sat and thought about how to start this road to independence discussion at length; however I have kept coming to the same problems.

The problems being that before we move into the interesting and nitty –gritty subject areas: we need to understand some basic principles.

The issue I have with these basic principles is that, to put it politely, they are tedious areas of political and legal study and it is very possible that anyone reading this could be easily alienated from the discussion within a few hundred words believing that this is nothing more than a pompous approach to make someone (me!) look clever. This is certainly not what I want; I want everyone to be able to engage in what is written here and to understand the principles.

Anyway, long story short, if we are going to discuss subjects then we really do have little choice but to explain these principles are understand them in order to understand arguments further along in the discussion. I aim to keep this as brief and as interesting as it can be; as one of the main principles we need to understand is a legal Doctrine regarding Parliamentary Sovereignty. We also need to discuss the meanings of other words being used such as accession, succession and other words to this affect that are not used in their everyday sense when relating it to this subject area.

I have also thought about this impartiality angle that I wish to take. Obviously, like everyone else – I do have a pre-conceived idea on my feelings toward Independence. In that instance, it is very easy to sway into a realm of persuasive argument when various subjects come up throughout this. At this stage I don’t know when this will be, because I don’t even know where this discussion will take me at this stage; I am certainly no expert, so when it comes to issues such as taxation I will need to go away and study some things before writing because as things stand right now: I don’t know the first thing about taxation.

Okay, enough blabbering, let’s get started. If anyone has anything to add to this, please comment or pass this page onto others. Any corrections are also particularly welcome. The more people who know about this debate, and participate: the better really, for everyone.

……………………………………………………………………………………………………………………………………………………….

Firstly, finding a starting point for this debate wasn’t easy. Some may pick the Declaration of Arbroath; some may pick the big bang to be frank. I have picked neither.

To start this discussion I am going to return to the Treaties of Union/Acts of Union in 1706 and 1707. This will not be a detailed History lesson on why the Acts came about, but the effect that they had on Scotland. Before we do though, we need to go through the boring part of definitions and theory.

Here are some words we will use along the way in this whole discussion. Some of them are fairly straightforward, but some can be slightly confusing because of their everyday meaning and their meaning in relation to this topic area.

Accession: The process by which a state becomes a member of a body (Joining the club so to speak)

Continuator: State that has same legal personality despite change of circumstances (many people claim that if Scotland ‘break-away’ from the rest of the United Kingdom then the remainder of the United Kingdom will continue as normal with only a change to population and jurisdiction)

Reversion: Where a state is re-established on the same or similar territory as the former state and regarded as same legal entity (Some people argue that Scotland could return to the way it was internationally before 1707)

Secession: Creation of new state without consent of former state

Succession: Replacement of one state by another in the responsibility for International relations.

 

Parliamentary Sovereignty:

 I aim to keep this brief. If anyone has a particular interest in the subject, then feel free to research it in more detail. People have written thesis papers on this legal Doctrine and as interesting as they may be; they are not for everyone.

In any country, or under any constitution: there must be a source of ultimate authority. In a written constitution; then the highest source of power is the constitution itself (As interpreted by the Supreme court of that land). America is a good example of this way of working. In the United Kingdom, at present, we do not have a written constitution and therefore the highest source of authority is the United Kingdom parliament; with the Acts of parliament that they produce being the highest form of law.

So far, pretty straight forward. The problem with this concept is that in a modern interdependent society where law is created by other international memberships such as the E.U., this concept in reality can be cast far from its theoretical routes. Indeed, Devolution from Westminster to Holyrood on all devolved matters can be seen as a clear challenge to the idea that Westminster is the supreme law making body in itself.

We could discuss the ins and outs of this theory for so long that the Independence vote would be over and the outcome sought by the time we got our heads around it. In order to cut this short; I have decided that instead of balancing the theories against one another and creating further confusion I am going to pick one theory, stick with it and use it as the base point.

The authority that I am going to depend on for the theory I find most palatable is the work of A.V. Dicey. His definition of Sovereignty is very classical; it is based completely on Law rather than politics. Dicey states,

“ The principle of Parliamentary Sovereignty means neither more nor less than this: namely, that parliament thus defines has, under the English Constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament”

Effectively, Diceys entire theory can be broken down into three basic rules:

  1. Parliament is the supreme law making body and may enact laws on any subject matter
  2.  No parliament may be bound by any actions of a predecessor and in turn cannot bind a successor. In other words, no legislation can be passed by a Government that cannot be repealed by any future Government.
  3. No person or body – including a court of law – may question the validity of parliament’s enactments.

This is a very basic overview of a very complex subject, basically the idea is that the U.K. Parliament can pass laws on anything it wants and when it does so; then no one should be in a position to challenge this. Of course, in a political sense this is never going to be reality. One of the most common ideas of how this varies in reality is cited as an act to ‘kill all blue eyed babies’. It is fairly obvious that such an Act is unlikely to come into place, but in theory – there is nothing to prevent the present Parliament doing so. (I await a Human Rights lawyer giving an immediate Article 2 Argument to the contrary).

I hope this explains Parliamentary Sovereignty in a few hundred words, and that everyone understands the concept to a reasonable extent. There is no need to be an expert in the subject and many will find this a very funny place to start a discussion on Independence; however – without going into detail, it is a concept we shall keep returning to throughout and I feel starting from the same platform will be beneficial later on in the discussion.

Sooooo, without further-a-do:

Who or what is Scotland?

This is the first real starting point to the Independence discussion. It is also the most important in my view as the answer to all the other questions out there surrounding Independence depends entirely on what view you take to this very specific question in the first place.

Prior to the accession to the throne of James 1 (James VI of Scotland), England and Scotland were both independent sovereign states, each having its own Monarch and Parliament. With James accession to the English throne in 1603, the two countries were united under one Monarch but retained their own sovereign parliaments until 1706. The treaty of Union 1706 effected, conceptually, the abolition of both Parliaments and the birth of the Parliament of Great Britain.

Article 1; Act of Union:

That the two kingdoms of England and Scotland shall upon the first day of May which shall be in the year one thousand seven hundred and seven and forever after be united into one Kingdom by the name of Great Britain.

The Union with England Act 1707 (Scotland) + the Union with Scotland Act 1706(England) culminated as the ‘Acts of Union’ to form Great Britain. Prior to these dates there is little to suggest that both Scotland and England were not completely separate countries; even using different calendars. England using the Julian calendar and Scotland the Gregorian calendar: hence why the Union with Scotland Act was actually passed in both 1706 and 1707.

Now, where am I going with this seemingly irrelevant history lesson?

Basically, there is an argument here about the existence of Scotland at all.

We have all been on holiday and asked by someone (Normally American, yes – I am stereotyping),” Where is that accent from?”

The retort, “Scotland”

American (Stereotyping again): “Oh Scotland, that’s in England isn’t it?

We have all been party to this type of discussion and it normally ends in a sigh! before explaining how Scotland and England are actually different countries. We actually get a bit defensive about it and become uncharacteristically patriotic discussing the finer parts of history and (usually) rubbishing the English. I understand this is not completely accurate but it has a means to an end.

The point that I am about to make here may surprise some, but that American might have been more accurate than you think.

Did the Act of union essentially end the existence of Scotland?

Well, let’s see.

After the Acts of Union – Westminster became Parliament and the supreme law making power (Treaty of Union 1706 Article iii).; although the Acts of Union Maintained protection for the Scottish Education System, Scots Law and Presbyterian Church. That is quite poignant; Westminster became the Parliament of Great Britain: not Scotland’s Parliament. Furthermore the Acts of Union Article xxii stated that Scottish members joined Parliament at Westminster with no new election for English members. In addition to this the “Treaty of Alliance with Portugal” – 16th June 1373, is often regarded as the oldest British treaty: although only concluded by England. No Scottish treaties prior to Acts of Union have survived and therefore, from such evidence – it could be argued that Scotland did in fact become part of England after the Acts of Union.

The problem with such an argument is the development of this new term: Great Britain.

Going by the wealth of opinion out there it is most likely a safer argument to suggest that Great Britain became a whole new nation after the Acts of Union were passed.  AD McNair suggests that, “England and Scotland ceased to exist as international persons and become the unitary state of Great Britain”.  An idea backed up by T.B. Smith, who states: “Two international persons disappeared in 1707…..and a new international person took their places”.

If we can take this idea as gospel, then one thing is pretty much certain: Scotland was extinguished either way; through merging into larger England or by development of completely new state in Great Britain. Due to this, it is clear that Scotland, England, Wales and N.Ireland only have status within U.K. domestic law and do not have an international status. Therefore the position of the U.K. does not necessarily risk being ‘dissolved’ after Independence, as is often termed. An idea backed by E.Wicks: “The entire purpose of the complex negotiations of 1707 was to enact a legal agreement between the two independent states of England and Scotland. As such it was a validly concluded International Treaty, albeit for a brief time. As the parties ceased to exist in May 1707”

The purpose in pointing out this detail is not for the sake of giving you the future answer to the inquisitive holidaymaker. In fact, this discussion brings us almost full circle to the debate about Parliamentary Sovereignty. If the Acts of Union effectively abolished Scotland and England as sovereign states and created one new Parliament then surely those Acts of Union are some form of higher law and limit the powers of Parliament. If the Acts of Union created Great Britain, then surely only the repeal of those Acts (in either an expressed or implied manner) can end Great Britain. There would be no other way for Scotland to become independent.

This is a subject area that we will move onto in the next part of the discussion and I am afraid until that part is published it is unlikely that all of this groundwork that I am laying will make a great deal of sense, or have any direct relevance to the Independence debate that everyone is expecting, so please bear with me until then.

This idea that the Acts of Union are a form of higher law would go against the ideal of AV Dicey that we discussed earlier. However, in order to clear up such a question we need to relate back to some court cases where such a matter has been discussed; and this idea of a higher law effectively dismissed.

In MacCormick v lord Advocate (1953), MacCormick sought an injunction against the Lord Advocate, as representative of the crown, preventing the use of the title Queen Elizabeth II of the United Kingdom of Great Britain. The objection to the use of the title was based on the historical inaccuracy that Queen Elizabeth I was queen of England and not Scotland, and therefore a contravention of Article 1 of the treaty of union which provided for the Union of the two countries from 1707. The petition was dismissed as was the appeal, however, Lord Cooper; the Lord President proceeded to discuss the Doctrine of Sovereignty:

“ The principle of the unlimited sovereignty of parliament is a distinctively English principle which has no counterpart in Scottish constitutional law…Considering that the Union Legislation extinguished the parliaments of Scotland and England and replaced them by a new Parliament, I have difficulty in seeing why it should have been supposed that the new parliament of great Britain must inherit all the peculiar Characteristics of the English parliament but none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the parliament of England. That is not what was done… I have not found in the Union Legislation any provision that the Parliament of Great Britain should be ‘absolutely sovereign’ in the sense that that parliament should be free to alter the treaty at will.”

In Gibson v The Lord Advocate (1975), the issue tested was whether allowing fishermen of Member states of the European Community to fish in Scottish coastal waters infringed Article XVIII of the Act of Union. The details of the case are rather irrelevant however Lord Keith also had a bash at answering the question of Sovereignty:

“There were addressed to me interesting arguments upon the question of jurisdiction and the competency of the action. These arguments raised constitutional issues of great potential importance…..

Like Lord President Cooper, I prefer to reserve my opinion what the position would be like if the United Kingdom parliament passed an act purporting to abolish the Court of Session, The Church of Scotland or to substitute English law for the whole body of Scots law. I am, however, of the opinion that the question whether a particular act of the United Kingdom Parliament altering a particular aspect of Scots private law is or is not ‘for the evident utility’ of the subjects within Scotland is not a justiciable issue in this court. The making of decisions upon what must essentially be a political matter is no part of the function of the court, and it is highly undesirable that it should be”

Despite the questioning words of Lords Cooper and Keith on sovereignty, the evidence to date goes clearly against the notion that the Act of Union is legally unalterable. A classic example of this is the Protestant Religion and Presbyterian Church Act 1707 that provides ‘the true protestant religion and the worship, discipline and government’ of the established church were ‘to continue without any alteration to the people of this land in all succeeding generations’. This was incorporated into the Treaty of Union and declared to be ‘a fundamental and essential condition of the…Union in all times coming’. The Act also required that teachers in universities and schools had to subscribe to the faith. Yet, in 1711, the Scottish Episcopalians Act and the Church Patronage (Scotland) Act were passed to reflect greater religious toleration, and by the Universities (Scotland) Act 1853 and the Parochial and Burgh Schoolmasters (Scotland) Act 1861, the requirement that teachers must subscribe to the Protestant faith was removed. Further changes in the organisation of the Church were made in the Church of Scotland Act 1921. This clear change in what some would suggest were protected matters by the Act of Union would certainly appear to be in keeping with the AV Dicey theory on Parliamentary Sovereignty, indeed he himself suggested that: “The Acts of Union have no greater legal status than any other Act; The Parliaments of Scotland and England Abolished themselves to be reconstituted as the parliament of Great Britain.”

 

A General recap and what to take from this so far:

Admittedly, this is not a lightning fast start into the nitty gritty of Scottish independence. Indeed, I would fully expect most people to be left wondering what relevance the above piece has to independence at all. That would be a fairly reasonable assertion to be making, but as I have alluded to at the start of this piece; before we enjoy the flower we first must plant the seed and watch as the boring green shoots grow into anything that resembles the flower on the packet.

What is important to understand is that Scotland does not have any international recognition as a state; only Great Britain has this recognition. The importance of this will not become clear until the next post when we discuss the outcomes of a ‘YES’ vote in the referendum. At this time, the material discussed above should fall into place.

It is also vital to take from this that the Act of Union that created Great Britain is nothing more than Parliamentary Legislation, and can be changed by Parliament and Parliament only.  Therefore, Britain is indeed one at present. The Scotland Act of 1998 that devolved power on all areas except those reserved explicitly within the Act is therefore of no further importance than the Acts of Union, and could be altered only by Parliament and at any time.

The big question then arises: If Scotland does vote ‘Yes’ then what does that do to the international recognition of Scotland and the Rest of the United Kingdom? If the Acts of Union created the United Kingdom, then to repeal them would take us back to the position of pre-1707. If this happened, then England would also revert back, surely? The big question is: What does ‘Scotland’ become?

 

 

 

 

 

 

 

 

 

 

Advertisements
Explore posts in the same categories: Current Issues, Politics

Tags: , , , , , , ,

You can comment below, or link to this permanent URL from your own site.

One Comment on “Part 1: Why Scotland doesn’t actually exist, and hasn’t since 1707.”

  1. mattl2 Says:

    Well, we didn’t perform as we should against Barca and that was disappointing. However, the experience in the champions league should make us better opponents next time round. We will see you there, God willing.

    Matt

    Sent from my iPad

    >


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s


%d bloggers like this: