Independence: Scotland is VERY different from Quebec

Whenever the subject of Scottish independence occurs in any debate the relationship between Scotland and the rest of the United Kingdom is compared to that between Quebec and the rest of Canada. These comparisons are inaccurate as they inevitably depend on assumptions and not facts. So what are the actual facts?

Scotland was an internationally sovereign country prior to 1 May 1707 when it joined with the realm of England, through the Treaty of Union in 1707, to form the United Kingdom of Great Britain. The precursor to that treaty occurred over one hundred years earlier in 1603 in what is erroneously called the Union of the Crowns when James VI of Scotland became James I of England.

'...on 25 March 1603, James VI of Scotland became James I of England. It was a purely personal union. There were still two kingdoms, each with its own parliament, administration, church and legal system.'

SOURCE: 'Scotland: The Shaping of a Nation' by Gordon Donaldson, p.46, ISBN 0 7153 6904 0, Library of Congress Catalog Card Number 74-15792.

Prior to 1763 Quebec was the capital of New France, the territory of which was divided into 5 colonies. The French colony of Canada, in which Quebec was located, was ceded to Britain in 1763 following military conquest. The former French colony was renamed as the Province of Quebec then in 1791 it became Lower Canada. In 1840 Quebec became part of the Province of Canada through an Act of Union then in 1867 as a province of the Canadian Confederation and eventually of present-day Canada.

Union of Parliaments

In any debate about the Treaty of Union in 1707, also known as the Union of Parliaments and which provided for one parliament (Article III), there are certain inconvenient facts which British Unionists prefer to omit -

• that in the three months that the Articles of Union were being debated by the Scottish Parliament there were riots throughout Scotland,
• that, during the same period, English troops were moved to the Scotland/ England border,
• that the majority of the Scottish commissioners appointed to negotiate the Articles of the proposed Treaty of Union were chosen because they were in favour of an incorporating union,
• that the Equivalent, the financial recompense for Scotland's contribution to payment of the English national debt (Article XV of the Treaty of Union in 1707) was grossly underestimated.

In his book 'The Lion in the North' (on page 238) John Prebble writes -

'Another English spy, less considerate of his masters' feelings, reported that most Scots cursed the nobles who had betrayed them into the Union, and that for every man who supported the Treaty there were fifty against it. 'I never saw a nation so universally wild'.'

Although it was dissolved by proclamation on 22 April 1707 the Scottish Parliament never actually dissolved itself. The last meeting of that Parliament was on 25 March 1707 when it was adjourned. That is why, in her speech to the initial meeting of the devolved Scottish Parliament Dr. Winnie Ewing MSP (Scottish National Party), now retired, was able to say -

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

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

United Kingdom. Secession and Dissolution

The United Kingdom is purported to have first been formed in 1801 through the Treaty of Union which formed the United Kingdom of Great Britain and Ireland. Close examination of the Articles of the Treaty of Union in 1707, however, shows that reference is made a number of times to the United Kingdom even though Article I states -

'...be united into one Kingdom by the name of Great Britain...'

Generally when a new country is formed from a part of an existing country it is usually described as being a secession. In the specific instance of Scottish independence, however, the word secession is both inaccurate and incorrect. For a secession to occur the parent country/state, which with regard to the current constitutional status of Scotland is Great Britain/ United Kingdom, would have to continue, albeit in a modified form - that would not be the case. The country of Great Britain was created by the joining of the realms of Scotland and England through the Treaty of Union in 1707. When Scotland regains its independence that treaty will effectively be DISSOLVED and Great Britain will CEASE to exist. Scottish independence, therefore, would NOT be a case of secession but would, in fact, be one of DISSOLUTION - referring to Scottish independence as secession would not change that fact. That is why Scottish independence would not be secession whereas the independence of Quebec from Canada would be.

'In contrast, Lane says, Scotland cannot break away like Ireland as it was 'one of the basic building blocks of "the United Kingdom of Great Britain"' (Lane 1991: 146). Without Scotland there is no 'Great Britain' and without Great Britain there is no 'United Kingdom'.'

SOURCE: 'SCOTTISH INDEPENDENCE: A Practical Guide' by Jo Eric Murkens with Peter Jones and Michael Keating, p.109, ISBN 0-7486-1699-3.

When Scotland regains its independence the reigning monarch of the United Kingdom will remain Head of State, in accordance with the Union of the Crowns in 1603, until such time as the people of Scotland decide otherwise in a referendum in an independent Scotland.

Sovereignty

The locus of sovereignty in Scotland has been disguised since 1707 and only since the late 1960's has it gradually come out of the shadow that was cast over it. A common misconception has been that sovereignty resided with the UK Parliament (parliamentary sovereignty/ supremacy of parliament). In 1688 the decision was made that in English constitutional law parliament was sovereign. Nowhere in the Treaty of Union in 1707 or at anytime since then has the UK Parliament ever been deemed to be sovereign.

'Yet the Scots made a grave miscalculation. They thought of the treaty as a written constitution, and, even with all the concessions they had obtained they would not have accepted that an omni-competent parliament had power to abrogate provisions which they fondly imagined to be 'fundamental and essential'...But the theories of English constitutional lawyers prevailed and the union has proved to have no more sanctity than any other statute.'

SOURCE: 'Scotland: The Shaping of a Nation' by Gordon Donaldson, p.58.

Sovereignty in Scotland has evolved since the death of Alexander III in 1286.

'Besides, in the years when Scotland was kingless, another concept emerged besides that of the impersonal crown: ultimate power or sovereignty was seen to lie with what was called 'the community of the realm'.'

SOURCE: 'Scotland: The Shaping of a Nation' by Gordon Donaldson, p.64.

The sovereignty of the Scottish people has now developed into a more democratic form and now rests with the registered electorate in Scotland.

'...greater power can only be granted to Scotland by the UK Parliament and here there is potential for conflict. To take the extreme example,constitutional matters are reserved but it is hard to see how the Scottish Parliament could be prevented from holding a referendum on independence should it be determined to do so. If the Scottish people expressed a desire for independence the stage would be set for a direct clash between what is the English doctrine of sovereignty and the Scottish doctrine of the sovereignty of the people.'

SOURCE: 'The Operation of Multi-Layer Democracy', Scottish Affairs Committee Second Report of Session 1997-1998, HC 460-I, 2 December 1998, paragraph 27.

A 1954 legal finding by Lord Cooper in the Scottish Court of Session contained the following -

'The principle of the unlimited sovereignty of Parliament is a distinctly English principle which has no counterpart in Scottish constitutional law.'

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

'Yet whatever the protestation of Westminster politicians and the wording of the Scotland Act, almost nobody in Scotland believes that the Parliament is a mere subordinate legislature, a creature of Westminster statute. Its claims to original authority are twofold: its basis in the referendum of 1997 as an act of self-determination; and the residual traditions of Scottish constitutional law and practice which never accorded untrammelled sovereignty to Westminster.'

SOURCE: 'SCOTTISH INDEPENDENCE: A Practical Guide' by Jo Eric Murkens with Peter Jones and Michael Keating, p.296.

Scots Law and legal system

'There are striking similarities between Quebec and Scotland. As Mark D. Walters, Professor of Constitutional Law at Queen's University in Canada, notes, 'efforts by Canadian and British judges to identify constitutional rules and principles of a common law nature are analogous, even though one system has a written constitution and the other does not' (Walters 1999: 383).'

SOURCE: 'SCOTTISH INDEPENDENCE: A Practical Guide' by Jo Eric Murkens with Peter Jones and Michael Keating, p.15.

The following are extracts from the Wikipedia entry for 'Common Law' -

'Scotland is often said to use the civil law system but it has a unique system that combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with an element of common law long predating the Treaty of Union with England in 1707...Scots common law differs in that the use of precedent is subject to the courts' seeking to discover the principle that justifies a law rather than searching for an example as a precedent, and principles of natural justice and fairness have always played a role in Scots Law...Scots common law covers matters including murder and theft, and has sources in custom, in legal writings and previous court decisions.'

The following are extracts from the 'Kilbrandon Report' -

'74. ...By the time of the Union a well-defined and independent system of Scottish law had been established. This was recognised in the Union settlement, which provided for the preservation of the separate code of Scots law and the Scottish judiciary and legal system. Under Article XIX the two highest Scottish courts - the Court of Session and the High Court of Justiciary - were to continue, and were not to be subject to the jurisdiction of the English courts. These bodies have remained respectively the supreme civil and criminal courts in Scotland, while beneath them there is a completely separate Scottish system of jurisdiction and law courts, with a justiciary, advocates and solicitors, none of whom are interchangeable with their English counterparts...

76. ...Nevertheless the two systems remain separate, and - a unique constitutional phenomenon within a unitary state - stand to this day in the same juridical relationship to one another as they do individually to the system of any foreign country.'

SOURCE: 'Royal Commission on the Constitution, 1969 - 1973', Volume I, Cmnd. 5460.