Scottish Independence is restoration NOT secession (Part 2)

Introduction:

'By the early eighteenth century, Scotland was a kingdom in crisis. Her economy had been severely weakened by a series of major harvest failures beginning in 1695. The 'Lean Years' of the 1690s were compounded by the catastrophic failure of the Darien Scheme and the attempt to establish a Scottish imperial outlet, the colony of Caledonia, on the Isthmus of Darien. Deliberately sabotaged by the combined efforts of the English East India Company, the international financial markets at Amsterdam and King William, it is estimated that almost 25% of Scotland's total liquid capital was lost in the Darien venture.'

SOURCE: 'The Last Scottish Parliament', BBC, paragraph 1.

1703 - 1802:

Pre-Union

'1703-5                 ANTECEDENTS OF THE TREATY OF UNION

...England, in 1701, had settled the succession on the Hanoverian line, but no such provision had been made in Scotland. This meant that on Anne's death, either the personal union might be dissolved or the relations between the two countries could be revised. The Scottish parliament which met in 1703 could not be controlled by the court, and it passed acts, which contained threats that Scotland would pursue an independent foreign policy and might appoint a different successor from the successor to the English throne. England retaliated in 1705 with the Alien Act, which declared that, until Scotland accepted the Hanoverian succession, all Scots would be treated as aliens in England and the import of cattle, sheep, coal and linen from Scotland into England would not be allowed; this measure stimulated the Scots into appointing commissioners to treat for union.'

SOURCE: 'Scottish Historical Documents' by Professor Gordon Donaldson, pp. 265-266.

Treaty of Union (1707)

'The English had decided to insist on 'incorporating union' at all costs. The Scots had a preference for some sort of federation, but they had no clear scheme for this, and the obvious foreign example of federation, the Netherlands, did not provide an encouraging model...There was not available in 1706 a formal study of political institutions, or a wealth of written constitutions to consider as examples.'

SOURCE: 'A History of Scotland' by Rosalind Mitchison, p. 308

'Professor Lodge, an English historian and pro-Unionist, admits...that:

"They [the English Government] had commercial inducements to offer and the ruin of Scottish agriculture to threaten, and by a judicious combination of bribes and menaces, they succeeded in bringing about the negotiations of 1706."

SOURCE: 'The Scottish Insurrection of 1820' by Peter Berresford Ellis and Seumas Mac A'Ghobhainn, p. 42, ISBN 0 85976 519 9.

'1706-7                   THE ARTICLES OF UNION

Commissioners representing Scotland and England sat from 16 April 1706 to 22 July, when the Articles of Union were signed. The Articles were debated in the Scottish parliament from 3 October 1706 to 16 January 1707, when they were ratified with only minor changes. The English parliament then likewise adopted them and they received the royal assent on 6 March.'

SOURCE: 'Scottish Historical Documents' by Professor Gordon Donaldson, pp. 268-269.

All of the commissioners representing Scotland were appointed by Queen Anne and, apart from one of them, were in favour of an incorporating union with England. During the period in which the Articles of the proposed Union were being debated by the Scottish parliament there were riots throughout Scotland.

There is a widespread belief that the failure of the Darien venture was directly responsible for the Scots decision to treat for Union with England. That is a myth. It is quite clear that the cause of the Treaty of Union in 1707, between Scotland and England, was, in actual fact, the Alien Act of 1705.

The Company of Scotland, which was formed in 1695, was initially set up for the purpose of trading with Africa and the Indies. After this was blocked it became the focus of a Scottish attempt to found a colony on the Darien isthmus. The following is an extract from Article XV of the Treaty of Union in 1707 -

'...This 'Equivalent' is to be devoted to...(b) payment of the capital (with interest) advanced for the Company of Scotland (which is to be dissolved)...'

SOURCE: 'Scottish Historical Documents' by Professor Gordon Donaldson, p. 271.

'Sir John Clerk of Penicuik, an ardent pro-unionist and Union negotiator, observed that the treaty was 'contrary to the inclinations of at least three-fourths of the Kingdom'.'

SOURCE: 'The Last Scottish Parliament', BBC, paragraph 18,

'Parliament was adjourned on 25th March and the Estates were ordered to reconvene on 22nd April. No such meeting appears to have taken place and on 28th April the Scottish Parliament was dissolved by proclamation.'

SOURCE: 'The Last Scottish Parliament', BBC, paragraph 15.

'The Estates met for the last time on March 25, 1707.'

SOURCE: 'The Lion in the North' by John Prebble, p. 285.

'Furthermore, there were grounds for believing that England might impose a military solution in order to safeguard her northern borders if the union project failed. Godolphin made veiled threats to this effect and, as has been seen, troops had been stationed in the north of England and reinforcements also sent to northern Ireland.'

SOURCE: 'The Scottish Nation 1700-2000' by T.M. Devine, p. 16, ISBN 0-713-99351-0.

'England was not going to permit a disruption of the existing union, and the scanty and ill-trained Scottish regiments could not have resisted Marlborough's veterans.'

SOURCE: 'Scotland: The Shaping of a Nation' by Gordon Donaldson, p. 57.

'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...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 scrap of paper, to be torn up at the whim of any British government.'

SOURCE: 'Scotland: The Shaping of a Nation' by Gordon Donaldson, pp. 58-59.

After the Union

'But Union froze many Scottish institutions in the attitude, or stage of development, of 1707, and made it hard for them to adapt in the next hundred and twenty years...Scotland was to suffer from undergovernment, and in particular from a lack of legislation for a long time.
...in the work of Parliament, it was rare for a Scottish model to be preferred to an English one, even when, as for the instance of the Scottish system of banking, it was a better one.'

SOURCE: 'A History of Scotland' by Rosalind Mitchison, pp. 312-313.

'In response to the abortive Jacobite rising of 1708, the new United Kingdom parliament in 1709 extended the draconian English law of treason to Scotland against the concerted opposition of the Scottish members in the Commons.'

SOURCE: 'The Scottish Nation 1700-2000' by T.M. Devine, p. 18.

The first attempt, other than the failed rising in 1708, to dissolve the Treaty of Union was in 1713 -

'To the Scots this was the climax of a whole stream of provocative actions which threatened to break the union. Scottish peers and members of the Commons came together in a series of meetings and agreed that the only solution was repeal of the treaty. What was remarkable was the unanimity of all the parties on such a fundamental issue...The motion was put by the Earl of Findlater in the House of Lords in June 1713 and was only narrowly defeated by four proxy votes.'

SOURCE: 'The Scottish Nation 1700-2000' by T.M. Devine, p. 20,

'In June, 1713, the Scots peers introduced a bill to repeal the Union. It was narrowly defeated, but it is doubtful if anyone would have known what to do had it passed. The horse was gone, and there was no stable door.'

SOURCE: 'The Lion in the North' by John Prebble, p. 285.

With regard to Scottish Independence the Jacobite risings of 1715 and 1745 must be treated with a degree of circumspection. While assurances were given by James Francis Edward Stuart (the Old Pretender) regarding dissolving the Treaty of Union in 1707 it is more likely that the main aim in the 1715 rising was the restoration of a Stuart to the thrones of Scotland and England and in 1745 to the British throne.

'...and the far more dangerous Shawfield riots in 1725 in Glasgow over the enhanced malt tax...Only Glasgow rioted...but the towns all over Scotland were ready to join in and every sign points to this being a movement of national resistance.'

SOURCE: 'A History of Scotland' by Rosalind Mitchison, p. 326.

Towards the end of the 18th century, following the French revolution and the American War of Independence, there was an increase in political societies founded on the philosophies of these events.

'In Scotland, the move to this way of thinking was a more gradual one. Nevertheless...succeeded in forming a movement based on the lines of the first United Irishmen societies, called the Friends of the People. This was, at first, a reform movement but its leaders were republican almost to a man. They were quite open in advocating the repeal of the Union with England, which made them "nationalists" as well.'

SOURCE: 'The Scottish Insurrection of 1820' by Peter Berresford Ellis and Seumas Mac A' Ghobhainn, p. 56,

'By the spring of 1797 the United Scotsmen had spread rapidly, completely taking over from the Friends of the People.'

SOURCE: 'The Scottish Insurrection of 1820' by Peter Berresford Ellis and Seumas Mac A'Ghobhainn, p. 75.

'The year 1798 proved a fateful one. It was in January of that year that the Government learnt the truth of what was about to happen in Ireland and Scotland. Their informers told them that the United Irishmen and the United Scotsmen were going to set up separate republics in Ireland and Scotland.'

SOURCE: 'The Scottish Insurrection of 1820' by Peter Berresford Ellis and Seumas Mac A'Ghobhainn, p. 80.

Treaty of Union (1801)

In June 1800 the Treaty of Union, which expanded the existing Union of England and Scotland (Wales having been incorporated into the realm of England in 1284 following military conquest) to include Ireland, was agreed. That Treaty came into effect on 1 January 1801 as the United Kingdom of Great Britain and Ireland.

'At first the Irish Parliament rejected the Union when it was put to a vote in 1799...The Union of the British and Irish Parliaments in 1800 cost the Government of Britain more than a million pounds in bribes...Thus the majority of the 300 members of the Irish Parliament were "persuaded" to vote for Union either by blackmail, financial gain, or the enticement of higher position.'

SOURCE: 'The Scottish Insurrection of 1820' by Peter Berresford Ellis and Seumas Mac A'Ghobhainn, p. 83.

There is a misconception that the United Kingdom was created through the Treaty of Union in 1801. That is incorrect. The term United Kingdom was used for the first time, as part of the formal name, in that treaty, however, the United Kingdom was initially created through the Treaty of Union in 1707. The term is used a number of times in the Articles of the 1707 treaty.

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.

United Kingdom: Scotland is NOT part of England

Recently I came across a blog post Scotland May Split with the United Kingdom on the blog Enduring Sense. This short post about the results of the Scottish Parliament elections in May contained the following sentence -

'This Party ran on a platform that included calling a referendum to determine if Scotland will remain part of England or become an independent country.'

I submitted a comment and received a reply from the author in which he wrote -

'Thanks for your clarification on the status of England and Scotland.'

The following is the comment which I submitted -

'...to determine if Scotland will remain a part of England...'

That is factually incorrect. Scotland is NOT part of England and NEVER has been. This post shows that there is a clear misunderstanding about what the United Kingdom actually is. The following is a brief history of it from the so-called Union of the Crowns in 1603.

'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.

It was James who first used the term 'Great Britain' to describe his combined kingdoms of Scotland and England. By this time Wales was already part of the kingdom of England, initially through the Statute of Rhuddlan in 1284 then more formally by a statute of the parliament of England in 1536. What unites the 'United Kingdom' is the fact that the same person is the monarch of three kingdoms - Scotland, England and Ireland. In relation to Scotland the term 'United Kingdom' first occurred in the Treaty of Union in 1707 which established, as from 1 May 1707, the 'United Kingdom of Great Britain' (Article I). In 1801 it was expanded to include Ireland in the 'United Kingdom of Great Britain and Ireland'. Following the creation of the Irish Free State in 1922 it became the 'United Kingdom of Great Britain and Northern Ireland' in 1927. As well as being a descriptive term of the territory of which it is comprised, 'United Kingdom' is also an abbreviation of the formal name. When Scotland regains its independence the 'United Kingdom' will continue, as it did between 1603 and 1707, until the people of Scotland decide otherwise in a referendum in an independent Scotland.

Scottish independence is often referred to as being a case of secession. It is, in fact, incorrect to use the words 'secede' or 'secession' with regard to Scottish independence. For a secession to occur the parent country, which with regard to the current constitutional status of Scotland is Great Britain, 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 kingdoms 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.

'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.

I would appreciate it if you would submit a post which clarifies the actual status of Scotland in relation to other parts of the 'United Kingdom of Great Britain and Northern Ireland' for the benefit of your readers.

Understanding Scottish Independence

'Understanding Scottish Independence' was originally written, in March 2009, as a guest post for the blog 'New England Tartan Day Initiative' which is now no longer available.

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After over 300 years it is no surprise that the idea of an independent Scotland should be considered, by many Scots, as a matter of wishful thinking or fantasy. However, that opinion has to be viewed against the background of the neglect of Scottish history to the extent that most Scots, including the most vociferous advocates of the British Union, are now unaware of the history of their own country -

'Equally, the study of English history and the comparative neglect of Scottish history led to the acceptance of the false idea that the two countries share the same historic background. How far this can go was illustrated in 1965, when it was proposed that the seven hundredth anniversary of Simon de Montfort's parliament and the seven hundred and fiftieth anniversary of Magna Carta - both events which took place in what was at the time a foreign country - should be commemorated in Scotland...Scotland's past tends to be viewed through the eyes of English historians, who regard anything not English as quaint, backward or even downright barbarous.'

SOURCE: 'Scotland: The Shaping of a Nation' by Gordon Donaldson, p.117,

the blow to the national self-confidence of the Scots resulted from the rigged referendum in 1979 -

'Labour MP George Cunningham succeeded in amending the bill to ensure that a referendum required the support of 40 per cent of the electorate (not those voting), for devolution to become law.' - p.149

'...but the 40 per cent rule was to have a decisive impact on the outcome of the referendum. Whilst 51.6 [per cent] of the votes cast supported the establishment of a Scottish Assembly, they represented only 32.9 per cent of the [electorate]: well short of the requirement for 40 per cent of the electorate to vote 'YES' before devolution could be instituted.' - p.152

SOURCE: 'SNP - The History of the Scottish National Party' by Peter Lynch,

and the way in which one particular political party, the Labour Party, has exploited the support of voters in Scotland for its own political self-interest -

'However, while the Labour party paid lip-service to Home Rule while out of office, its promises were forgotten when it was in office. Many of the Labour men were not only internationalists in principle, but had so fallen under the spell of England as to have little sympathy with Scotland.' - p.127,

'It was even harder to believe that the Labour party could decide to further Home Rule - even apart from the practical advantages to it of Scottish support at Westminster. The party's philosophy is based on the division of men into social classes rather than into nations, and the whole structure of organized 'Labour' stands for the negation of nationalism.' - p.130

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

Fortunately there is a political party in Scotland, the Scottish National Party, which has as its aim the restoration of an independent Scotland in today's modern world and has, since May 2007, formed the elected government of Scotland in the devolved Scottish Parliament.

In any debate about the Treaty of Union in 1707 there are certain inconvenient truths that 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 had been 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.

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...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...'

- MacCormick v Lord Advocate 1954 (1953 SC 396)

The late Professor Gordon Donaldson wrote in his book 'Scotland: The Shaping of a Nation', pp. 58-59 -

'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...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 scrap of paper, to be torn up at the whim of any British government.'

The following is an extract from the book 'SCOTTISH INDEPENDENCE: A Practical Guide' by Jo Eric Murkens with Peter Jones and Michael Keating, p.296 -

'In his White Paper on Scotland John Major declared that 'no nation can be can be kept in a union against its will', implying the right of self-determination, but then refused to accept broad consensus on favour of home rule as a condition for remaining within the Union (Major 1992). Labour has been equally inconsistent, signing the Claim of Right asserting that the sovereignty rested with the Scottish people (Campaign for a Scottish Assembly 1988), but then insisting in its devolution legislation that the sovereignty of Westminster remained unabridged. Yet whatever the protestations of Westminster 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.

The Scotland Act 1998 contains the following sub-section in section 28 which concerns Acts of the Scottish Parliament -

'(7) This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.'

In other words the United Kingdom Parliament can still make laws for Scotland EVEN on devolved matters.

The benefits of independence

Independence for Scotland would allow the people of Scotland to determine their own future by being able to elect a government which would put the national interests of Scotland foremost, limited only by such international agreements as are freely entered into by it. Scotland would be able to participate at an international level as a sovereign nation with other nations at European Union and United Nations level as well as in any other international organisations of which it chose to be a member. Decisions affecting Scotland could no longer be made without direct representation. An example of how this is currently done without any Scottish representation exists in the meetings of the Council of Ministers of the European Union. Representation in the Council of Ministers is restricted to the official delegations from member states, which as far as Scotland is currently concerned is the United Kingdom. Tiny land locked Luxembourg is a member state, has a population less than the city of Edinburgh, has no fishing fleet but has the power to influence decisions that could have a significant impact on the fishing industry in Scotland. Independence would place Scotland among the other independent nations throughout the world - in other words NORMALITY. What independent country, anywhere in the world, would seek a return to a union from which it had previously gained independence? After her victory for the Scottish National Party at the Hamilton by-election in 1967 Winnie Ewing - later a Member of the European Parliament (in which she was known as Madame Ecosse) and then Member of the Scottish Parliament (now retired) said:

"Stop the world, Scotland wants to get on."

Clarification and explanations

In order to assist the understanding of the case for Scottish independence and to avoid misunderstanding and confusion some clarification of certain matters and an explanation of the arguments, most frequently used against the case for independence to create confusion, is required.

Scottish independence is NOT secession

It is incorrect to use the word 'secession' with regard to Scottish independence. The 'Concise Oxford Dictionary' defines 'secession' as -

'the act of seceding from a federation or organization'.

The United Kingdom is neither a federation nor is it an organization. For a secession to occur the parent state, which with regard to the current constitutional status of Scotland is Great Britain, 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 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.

There is NO such thing as 'British law' or a 'British legal system'

It is possible to get confused when reference is made to either 'British law' or the 'British legal system'. The simple fact is that there is no one thing that can be called British law or the British legal system. The phrases 'British law' and 'British legal system' are generally understood to encompass both Scots law and English law and their respective legal systems. Although there is also Welsh and Northern Irish law and corresponding legal systems they are essentially variants of English law. The following extracts from the 'Kilbrandon Report' should help clarify the status of Scots law -

'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.

"Don't break-up the United Kingdom"

This argument exposes the misunderstanding that exists about what the United Kingdom actually is. The United Kingdom is NOT and NEVER has been a country. This misunderstanding has its origins in the Union of the Crowns in 1603, a misnomer which the following extract will clarify -

'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.

It was James who first used the term 'Great Britain' to describe his combined kingdoms of Scotland and England. What unites the 'United Kingdom' is the fact that the same person is the monarch of three kingdoms - Scotland, England and Ireland. In relation to Scotland the term 'United Kingdom' first occurred in the Treaty of Union in 1707 which established the 'United Kingdom of Great Britain' (Article I). In 1801 it was expanded to include Ireland in the 'United Kingdom of Great Britain and Ireland'. Following the creation of the 'Irish Free State' in 1922 it became the 'United Kingdom of Great Britain and Northern Ireland' in 1927. As well as being a descriptive term of the territory of which it is comprised, 'United Kingdom' is also an abbreviation of the formal name. When Scotland regains its independence the 'United Kingdom' will continue, as it did between 1603 and 1707, until the people of Scotland decide otherwise in a referendum in an independent Scotland.

"Scotland is too small and too poor to be independent"

This particular argument is an offshoot of a view that was prevalent in the 1960's and early 1970's that 'bigger is better'. However, the argument is puzzling - how can 'too small and too poor' be put forward as a justification when no basis for the argument is given? How is 'too small' or 'too poor' to be defined? - both are relative terms. Using population size as a measure there are a number of countries throughout the world with a comparable population to Scotland that are independent nations. The population of a country is often referred to as its best resource. The suggestion that population size should determine whether or not a country should be independent insults the people of Scotland as well as the peoples of those countries with a similar size of population to Scotland.

Compared to some countries Scotland would be considered to be affluent. In comparison to other parts of the United Kingdom there are parts of Scotland where relative poverty exists (it is also the case that there are parts of the United Kingdom outwith Scotland that are also affected by this relative poverty). The reason for this can be found in the large support that the Labour Party had in Scotland. As long as the Labour Party could rely on that support then it had no reason to do anything to alleviate that poverty - anything it did do was an illusion. As far as it was concerned it's own political self-interest took precedence.

The Scotland Act 1998 which led to the creation of the Scottish Parliament reserved economic powers to the UK Parliament. Despite this fact the British Unionist political parties in the Scottish Parliament persist in their malicious accusations that the Scottish Government is failing to address the economic problems affecting Scotland. After the Scotland Act had been passed, but before the establishment of the Scottish Parliament, the Scottish Adjacent Waters Boundaries Order 1999 was approved. It removed a substantial area of the North Sea from Scottish waters and included them in English waters. This meant that Scottish fishing boats which had previously landed their catch from that area at a Scottish port had to land it at an English port thereby removing part of the economic contribution of the fishing industry from Scotland.

"Scotland cannot be independent in the European Union"

For some peculiar reason proponents of this argument appear to forget or dismiss the point that the same criteria they apply to an independent Scotland could equally and logically be applied to what is termed 'remainder of the United Kingdom' (rUK). Basically what is being suggested is that an independent Scotland would have to apply for membership of the EU but that 'rUK' would not. The following is an extract regarding 'The European Union and Succession' from the book 'SCOTTISH INDEPENDENCE: A Practical Guide' by Jo Eric Murkens with Peter Jones and Michael Keating, pp. 115-116 -

'French Advocate Maitre Xavier de Roux summarises the argument in the following terms:

'Scotland is part of the Common Market territory by virtue of the United Kingdom's accession to the Treaty of Rome and by application of the Treaty of Union 1707. If the Treaty of Union was revoked and if Scotland recovered its international sovereignty, it would be accepted within the Common Market without any formality.'

...

As the EU includes Scotland within its remit and because Community law directly affects the Scots, de Roux concludes that Scotland is not a third party to the Treaty. On independence it could not be regarded as a new applicant state as the United Kingdom acted on behalf of Scotland when it joined the European Communities in 1973. According to de Roux's argument, a change in Scotland's political status would have no bearing on the legal status of Scotland in Europe.

Professor Emile Noel, former Secretary General of the European Commission and Lord Mackenzie Stuart argued that Scottish independence would result in the creation of two Member States of equal status. The rUK would not be more powerful than Scotland...

Former Director General of the European Commission and former EC Ambassador to the United Nations Eamonn Gallagher sees 'no sustainable legal or political objection, to separate Scottish membership of the European Community...'.

"We need the Trident nuclear weapons system"

Nuclear weapons are the cause and subject of protest and great fear. No one, irrespective of their opinion about nuclear weapons, can be in any doubt as to the disaster their use would precipitate. In Scotland there have been protests and demonstrations since nuclear submarines arrived and were based on the River Clyde, initially by the US Navy in March 1961 (from June 1968 on the Holy Loch) until 1992 and by the Royal Navy at the Faslane/Coulport base on the Gare Loch and Loch Long from 1969. That base is approximately 30 miles north-west of Glasgow. Within a radius of 100 miles from the base the vast majority of the population of Scotland live and work. There is an important distinction to be made between opposition to these weapons and the crews of the submarines. Think of it this way - the missiles are the message and the crews are the messenger. Opposition and protest is directed specifically at the nuclear weapons.

"Scotland will be a target for retaliation if the Trident missile should ever be used. The people of Scotland will be the sufferers...the safety of the population of Scotland is the concern of Scotland. The health of the population of Scotland is the concern of Scotland. The welfare of future generations of its population is the concern of Scotland. The purity of the seas and ocean life around Scotland are the concerns of Scotland...gross violations of international obligations are not excluded from the purview of the Scottish Parliament. The absence of power in the former area cannot cancel out its responsibilities in the latter."

- Judge Christopher Weeramantry, former vice-president of the International Court of Justice.

Schedule 5 of the Scotland Act 1998, concerning 'RESERVED MATTERS', in Part I reads as follows -

'7 - (1) International relations, including relations with territories outside the United Kingdom, the European Communities (and their institutions) and other international organizations, regulation of international trade, and international development assistance and co-operation are reserved matters.

(2) Sub-paragraph (1) does not reserve -

(a) observing and implementing international obligations, obligations under the Human Rights Convention and obligations under Community law,

(b) assisting Ministers of the Crown in relation to any matter to which that sub-paragraph applies.'.

"You won't be able to visit relations in England"

This is probably the most ridiculous argument against Scottish independence - it also clearly shows the sort of scaremongering that British Unionists will resort to and the depths to which they will sink. The argument uses the existence of the Schengen Agreement as justification. The Schengen Agreement provides for a borderless zone comprising of the countries which are signed up to it, mostly member states of the European Union and a few countries outside it. Currently the United Kingdom and the Republic of Ireland are the only EU member states which do NOT fully participate in the Schengen Agreement. Border control arrangements still exist between countries that are part of the Schengen Agreement and those that are not. The suggestion that an independent Scotland would be isolated from the rest of the world is not only insulting to the people of Scotland but also reveals the complete lack of vision for Scotland's future which exists among British Unionists.

An independence referendum

An important feature of Scottish democracy is the fact that sovereignty rests with the people and not parliament. This fact was recognised by the Select Committee on Scottish Affairs (a committee of the UK Parliament) -

'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 December1998, paragraph 27.

The Scottish Government has launched a consultation document titled 'Choosing Scotland's Future: A National Conversation - Independence and responsibility in the modern world' which includes a suggested Bill for an independence referendum. The following quotation is to be found on the inside front cover of that document -

'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)'

The Unionist parties in the Scottish Parliament have clearly indicated that they will not vote for such a Bill when it is introduced in 2010 denying the people of Scotland the opportunity of a say in their own future. Since 1973 the status of the referendum in the United Kingdom has been the subject of much debate -

'In the last resort, all arguments against the referendum are also arguments against democracy, while acceptance of the referendum is but the logical consequence of accepting the democratic form of government.'

- Professor Vernon Bogdanor, English constitutionalist.

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'Those who would deny freedom to others, deserve it not for themselves'

- Abraham Lincoln, April 6, 1859

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"Why Become Independent to Give Up Sovereignty?"

This post is the last three paragraphs of one of the same title which appeared recently on the blog 'HOTEL BRUSSELS', http://sentsq.blogspot.com/2008/05/why-become-independent-to-give-up.html, and my response to it -

"...Take Scotland, for example. It benefits significantly from European subsidies. Is this a coincidence? It has certainly convinced the Scottish National Party that Scotland can become a viable country if the United Kingdom is dissolved, on condition, however, that Scotland remains a member of the EU. Hence the SNP, which is currently in power in Edinburgh, aims for an independent Scotland firmly entrenched within the European Union.

In reality both SNP aims, dissolving Britain while at the same time strengthening the EU, are contradictory. Why become independent from London in order to give up one's sovereignty to Brussels? One may wonder whether the SNP really wants an independent Scotland at all since it seems ready to exchange one Leviathan for another even bigger and more dangerous one.

Perhaps if the Scots leave the United Kingdom to become a province of Europe, England can secede from the EU and, together with Flanders and the regions of Northern Italy, join Switzerland, Liechtenstein, Iceland and Norway - the family of truly sovereign nations which are assembled in EFTA, the European Free Trade Association, and do not want to be part of the EU, the European superstate in the making.

This piece was originally published in The Washington Times on May 1, 2008."

and this is the comment I submitted to it -

"This item appeared in the FORUM section of 'The Washington Times' under the heading 'Politics Italian-style' and also in 'Brussels Journal' with the heading 'Why Become Independent to Give Up Sovereignty?'. The author is Paul Belien, editor of 'Brussels Journal'. I address my comments to the assertions made in paragraphs 9, 10 and 11. In paragraph 9 he writes -

'It has certainly convinced the Scottish National Party that Scotland can become a viable country if the United Kingdom is dissolved, on condition, however, that Scotland remains a member of the EU.'

That is total nonsense. The Scottish National Party was formed in 1934 predating the treaties which led to the European Union. When the Treaty of Union between Scotland and England, which created Great Britain, was agreed there were riots throughout Scotland. When Scotland regains its independence it is Great Britain which will be dissolved not the United Kingdom - it has never been a country.

'whilst the SNP formally campaigned for a No vote at the 1975 referendum on continued membership of the European Community the tone of its campaign was directed against being forced to join the Community as part of the United Kingdom...rather than opposed to EC membership on any grounds (Lynch 1996:35).'

- 'SNP: The History of the Scottish National Party' by Peter Lynch, pp 185-186, ISBN 1 86057 0038 or 0046.

In paragraph 10 he writes -

'Why become independent of London in order to give up one's sovereignty to Brussels?'

This clearly shows that an assumption has been made regarding sovereignty in Scotland without knowing the actual facts - under Scottish constitutional law sovereignty rests with the people -

'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, p64, ISBN 0 7153 6904 0,

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

SOURCE: McCormick v Lord Advocate 1954 (1953 SC 396),

'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, para 27.

In 1707 Scotland was taken into a Union with England by a minority despite the views of the majority of the people of Scotland (at the time most people were not entitled to vote as democracy as we now know it did not exist) whereas continued membership of the EU would be subject to the consent of the people in a referendum.

In paragraph 11 he writes -

'Perhaps if the Scots leave the United Kingdom to become a province of Europe...join Switzerland, Liechtenstein, Iceland and Norway - the family of truly sovereign nations which are assembled in EFTA'

Firstly, Scots have absolutely no intention of becoming 'a province of Europe', secondly he insults all other sovereign nations, whether in the EU or elsewhere in the world, by suggesting that 'truly sovereign nations' are in EFTA. Tiny Liechtenstein has a population much less than that of Edinburgh and is the only country outwith the Arab world which does not allow women to vote.

'We do not aspire to a centralised European super state, but neither will we be satisfied with a European Union that only exists as a market and that stands divided and impotent when human rights and international law are being violated. Neither will we accept a European Union that looks down on small countries and constitutional regions while allowing the larger member states or the economic and military superpowers to dictate the law.'

- Nelly Maes, European Free Alliance [of which the SNP is a member].