Scottish Sovereignty and Independence

"Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law."

- Thomas Jefferson

Originally sovereignty was considered to be the absolute power of monarchs but through time that idea has developed in various ways. In Scotland the concept of popular sovereignty first emerged following the death of Alexander III in 1286 when Scotland was without a king. The original concept was called 'the community of the realm' but has evolved into a democratic style where 'the sovereignty of the Scottish people' now rests with the total registered electorate. As far as I am aware the first written example of it is in the Declaration of Arbroath in 1320 -

'...But after all, if this prince shall leave these principles he hath so nobly pursued, and consent that we or our kingdom be subjected to the king or people of England, we will immediately endeavour to expel him as our enemy and as the subverter both of his own and our rights and we will make another king, who will defend our liberties...'.

Popular or democratic sovereignty is the very antithesis of parliamentary sovereignty (the supremacy of the Westminster Parliament) which has existed in English constitutional law since it was established through the English Bill of Rights in 1689. Up until the establishment of the Scottish Parliament in 1999 the constitutional and legal effect on 'the sovereignty of the Scottish people' was that it had merely been unavailable. A specific example of the contradiction between popular sovereignty and parliamentary sovereignty can be found in a 1954 legal finding by Lord Cooper in the Scottish Court of Session -

'...The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law...I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all of 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...'

- (MacCormick v Lord Advocate 1954 (1953 SC 396))

The Treaty of Union in 1707 abolished neither the Parliaments of Scotland or England as clarified by Article 3 -

'III. That the United Kingdom of Great Britain be represented by One and the same Parliament, to be stiled, the Parliament of Great Britain.'

In her speech to the initial meeting of the devolved Scottish Parliament Dr. Winnie Ewing MSP (Scottish National Party), now retired, said -

'...the Scottish Parliament, which adjourned on 25 March 1707, is hereby reconvened...'

- Scottish Parliament Official Report, Vol. 1, No. 1, 12 May 1999.

In 1989 the Members of the Westminster Parliament in Scotland for the Labour and the Liberal Democrat parties were part of the Scottish Constitutional Convention, one of them was Gordon Brown MP (now the British Prime Minister). They all signed a document, 'A Claim of Right for Scotland', which reaffirmed 'the sovereignty of the Scottish people' and their right to choose the type of government best suited to their needs. From the first elections to the Scottish Parliament up until the elections in May this year they formed a coalition which represented the majority of Members of the Scottish Parliament and as such were in control. They are now part of the opposition and are opposed to any referendum on, or which includes the option of, independence.

Several weeks ago a White Paper, which is based on 'the sovereignty of the Scottish people', was launched by Alex Salmond MSP, MP, First Minister of Scotland, as a consultation with the people of Scotland, it is called 'Choosing Scotland's Future: A National Conversation - Independence and responsibility in the modern world'. In an Opinion column in 'The Scotsman' newspaper Aileen Campbell MSP (Scottish National Party) asked the following question -

'...And what is so scary about fostering a national debate on the future of the country anyway?...'

The first practical example of popular sovereignty being the basis of a system of government is to be found in the Constitution of the United States. That document starts with the words 'WE THE PEOPLE...' which clearly infers popular sovereignty. Anything which follows those words and contradicts them, no matter how remotely, is therefore unconstitutional.

'...the ultimate authority, wherever the derivative may be found, resides in the people alone...'

- James Madison, Federalist 46

The author of the phrase 'WE THE PEOPLE' was James Wilson who was born in Ceres (Carskerdo) near St. Andrews in Fife.

'No man has a right to fix the boundary of the march of a nation; no man has a right to say to his country, "Thus far shalt thou go and no further".'

- Charles Stewart Parnell (1846 - 1891).

False Impressions

Professor Gordon Donaldson writes in his book 'Scotland: The Shaping of a Nation' -

'Yet the Scots made a grave miscalculation. They thought of the treaty as a written constitution,...But the theories of English constitutional lawers prevailed, and the union has proved to have no more sanctity than any other statute...The list of violations of the treaty is already a long one and always growing longer...The fact is that, contrary to the beliefs and hopes of those who framed it, the treaty of union has proved to be a mere scrap of paper, to be torn up at the whim of any British government.'

There appears to be an international misunderstanding about the status of Scotland - political and geographic. The use of the name Britain when the subject is England is just one example of this misunderstanding. There is a tendency in certain parts of the British media to say Britain when bad news abroad concerns England, but Scotland when it concerns Scotland. The car of a Dutch tourist was fitted with the most up to date satellite navigation equipment which informed him that he was in England - he was in Fort William, a town on the North West coast of Scotland. He also said that no-one actually considered the northern part of this island (Britain) as anything other than England. When a search on 'Scotland' is performed in US newspapers online the most frequently returned result is about golf, which could give the false impression that Scotland is just a glorified golf course appended to England.

England is not Britain (only the largest part) and Scotland is not part of England. Since 1922 there have been three countries and part of another in the United Kingdom of Great Britain and Northern Ireland - Scotland, England, Wales and Northern Ireland. Despite the Union of the Crowns (a misnomer as there were and still are two kingdoms) in 1603 and and the Treaty of Union in 1707, Scotland and England do not have a shared history. The following are extracts from Articles 18 and 19 of the Treaty of Union of 1707 -

'XVIII. ...and that all other laws within the Kingdom of Scotland, do after the Union, and notwithstanding thereof, remain in the same force as before (except such as are contrary to, or inconsistent with this Treaty) but alterable by the Parliament of Great Britain:...

XIX. That the Court of Session, or College of Justice, do after the Union, and notwithstanding thereof, remain in all time coming within Scotland, as it is now constituted by the Laws of that Kingdom, and with the same Authority and Privileges as before the Union, subject nevertheless to such Regulations for the better Administration of Justice as shall be made by the Parliament of Great Britain...And that the Court of Justiciary do also after the Union, and notwithstanding thereof, remain in all time coming within Scotland, as it is now constituted by the Laws of that Kingdom, and with the same Authority and Privileges as before the Union, subject nevertheless to such Regulations as shall be made by the Parliament of Great Britain, and without prejudice of other Rights of Justiciary...and that the said Courts, or any other of the like nature, after the Union, shall have no power to cognose, review, or alter the Acts or Sentences of the Judicatures within Scotland or to stop the execution of the same...'

Filtered History

'Until the teaching of history becomes more genuine and less of an 'approved version' it will become increasingly difficult for genealogists to place their family history in context.'

Here in Scotland that applies particularly to politics and political history. An article in 'The Herald' newspaper in 2005 revealed that a secret report was presented, in 1975, to the then Labour government by Dr. Gavin McCrone, a leading economist. The report stated that if Scotland was an independent nation the oil revenue would 'transform Scotland into a country with a substantial and chronic surplus'. This information was also released to the Scottish National Party under Freedom of Information legislation. Back in the mid to late 1970's it was continually said by the UK government that the oil would run out in a few years. This sort of 'sanitization' is nothing new. In the book 'The Scottish Insurrection of 1820' Peter Berresford Ellis writes in the Preface to the 2001 edition -

'...the fact that it was an aim of the Scottish Radicals to set up a separate parliament in Edinburgh has been met with skeptical posturing. Yet this was clearly spelt out by Glasgow Police Chief, James Mitchell, in his letters to the Home Secretary, Lord Sidmouth, of March 18 and 29, 1820.'

While searching several US newspapers online for items about the Scottish Parliament elections in May this year I found that only one of them made the effort to visit Scotland during that election campaign. The rest had included their coverage as part of the various elections that were being held in the UK, mainly those in England. These newspapers were reporting from London which suggested a London 'filter' was operating. A saying I recall from the 1970's is -

'In order to be an internationalist you must first be a nationalist'.