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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James Wilson - 'We the People' and Sovereignty

Several years ago while performing a Google search on the subject of 'Popular Sovereignty' I came across a paper titled 'Popular Sovereignty and Constitutional Amendment' by Akhil REED AMAR. In that paper he writes -

'As Gordon Wood has written Wilson was the Federalists' pre-eminent popular sovereignty theorist; and it was his hand that first penned the bold first three words of the Constitution, "We the People".' - page 9.

Those words have intrigued me ever since reading them. I followed the relevant endnote to page 150 of Volume II of 'The RECORDS of the FEDERAL CONVENTION of 1787' edited by Max Farrand which gives the text of Document V in the COMMITTEE OF DETAIL, in particular the footnote on that page which reads as follows -

'Document V in Wilson's handwriting was found among the Wilson Papers. It appears to be the beginning of a draft with an outline of the continuation. Parts in parentheses were crossed out in the original.'

When James Wilson wrote those words what exactly did he mean by them? In the context of the Constitution of the United States they clearly refer to 'the people of the United States' but outwith it they are inclusive of ALL people throughout the world.

'...Wilson was at the front rank of the founders. He was also in touch with the future. "By adopting this system," Wilson explained in 1787, "we shall probably lay a foundation for erecting temples of liberty, in every part of the earth."'

SOURCE: 'Collected Works of James Wilson', Edited by Kermit L. Hall and Mark David Hall, Volume I, from 'COLLECTOR'S FOREWORD' by Maynard Garrison, ISBN 978-0-86597-686-3.

'For a' that, an' a' that,It's coming yet for a' that,That Man to Man, the world o'er, Shall brithers be for a' that.'

- Robert Burns (1759-1796)

The phrase 'we the people' is often used nowadays as a 'soundbite', whether it be political or not, but as used in the Constitution of the United States 'We the People' clearly indicates the locus of sovereignty - despite the fact that the word 'sovereignty' is not to be found anywhere in it. While a legislature may be regarded as being sovereign in an international sense, a genuinely democratic legislature, however, can ONLY act on BEHALF of the sovereign people and is therefore NOT sovereign in itself.

'I had occasion, on a former day, to mention that the leading principle in the politics, and that which pervades the American constitutions, is, that the supreme power resides in the people. This Constitution...opens with a solemn and practical recognition of that principle:- "We, the people of the United States, in order to form a more perfect union, establish justice, &c., do ordain and establish this Constitution for the United States of America." It is announced in their name - it receives its political existence from their authority: they ordain and establish.' - page 193,

'When the principle is once settled that the people are the source of authority, the consequence is, that they may take from the subordinate governments powers with which they have hitherto trusted them, and place those powers in the general government, if it is thought that there they will be productive of more good. They can distribute one portion of power to the more contracted circle, called state governments; they can also furnish another proportion to the government of the United States. Who will undertake to say, as a state officer, that the people may not give to the general government what powers, and for what purposes, they please? How comes it, sir, that these state governments dictate to their superiors - to the majesty of the people? When I say the majesty of the people, I mean the thing, and not a mere compliment to them.' - page 202,

SOURCE: 'Collected Works of James Wilson', Kermit L. Hall and Mark David Hall, Volume I, Remarks in Pennsylvania Ratification Convention.

That means that anything which comes after the words 'We the People' in the Constitution of the United States, and contradicts them, no matter how remotely, is unconstitutional.

Dual Sovereignty

The concept of dual sovereignty, as advocated by James Wilson, has been confused with the division of powers at the State and Federal levels. What Wilson meant was that as ONLY the people are sovereign at ALL times it is for them to decide how they wish the powers that come with that sovereignty to be put into effect.

'Wilson also advocated for federalism and the related concept of dual sovereignty. Since the people were the foundation of all government, they could construct as many levels of authority as they wished. Thus, the people could not only establish a national government of enumerated powers but simultaneously lend their support to state governments vested with the traditional police powers of health, safety, morals and welfare.'

SOURCE: 'Collected Works of James Wilson', Kermit L. Hall and Mark David Hall, Volume I, Introduction, pp. xix-xx,

'The secret is now disclosed, and it is discovered to be a dread, that the boasted state sovereignties will, under this system, be disrobed of part of their power...let me ask one important question. Upon what principle is it contended that the sovereign power resides in the state governments? The honourable gentleman has said truly, that there can be no subordinate authority. Now, if there cannot, my position is, that the sovereignty resides in the people.' - page 201,

'The very manner of introducing this constitution, by the recognition of the authority of the people, is said to change the principle of the present confederation, and to introduce a consolidating and absorbing government.

In this confederated republic, the sovereignty of the states, it is said, is not preserved. We are told, that there cannot be two sovereign powers, and that a subordinate authority is no sovereignty...I stated further, that if the question was asked, some politicians who had not considered the subject with sufficient accuracy, where the supreme power resided in our governments, he would answer, that it was vested in the state constitutions. This opinion approaches near the truth, but does not reach it; for the truth is that the supreme, absolute, and uncontrollable authority remains with the people.' - page 213,

'I consider the people of the United States as forming one great community; and I consider the people of the different states as forming communities, again, on a lesser scale. From this great division of the people into distinct communities, it will be found necessary that different proportions of legislative powers should be given to the governments, according to the nature, number, and magnitude of their objects.

Unless the people are considered in these two views, we shall never be able to understand the principle on which this system was constructed. I view the states as made for the people, as well as by them, and not the people as made for the states; the people, therefore, have a right, whilst enjoying the undeniable powers of society, to form either a general government, or state governments, in what manner they please, or to accommodate them to one another, and by this means preserve them all.' - page 214,

'State sovereignty, as it is called, is far from being able to support its weight. Nothing less than the authority of the people could either support it or give it efficacy.' - page 215,

'Permit me to proceed to what I deem another excellency of this system: all authority, of every kind, is derived by REPRESENTATION from the PEOPLE, and the DEMOCRATIC principle is carried into every part of the government.' - page 238,

SOURCE: 'Collected Works of James Wilson', Kermit L. Hall and Mark David Hall, Volume I, Remarks in Pennsylvania Ratification Convention.

Eleventh Amendment

The passing of the Eleventh Amendment, following Chisholm v State of Georgia, was a reaction to the realisation by a minority who currently held office that they could no longer manipulate matters for their own narrow interest. What the Eleventh Amendment did was to create a mechanism which State governments and their 'tentacles' could hide behind, in certain circumstances, to avoid their responsibility.

'The result was the speedy ratification in 1795 of the Eleventh Amendment...This rebuke of Wilson was particularly poignant since in the constitutional convention he had urged the principal of dual sovereignty. Put to the test on the bench, however, Wilson discovered that his views on the sovereignty of the people had less support than he supposed, at least when that sovereignty trumped state authority.'

SOURCE: 'Collected Works of James Wilson', Kermit L. Hall and Mark David Hall, Volume I, Introduction, page xxii,

'...Nowhere in the entire document are the states identified as sovereigns.

The claim that the sovereignty of the states is constitutional rests on an audacious addition to the eleventh amendment, a pretense that it incorporates the idea of state sovereignty. Neither the text nor the legislative history of the amendment supports this claim, nor does an appeal to the history contemporaneous with the amendment...

Sovereignty in the classic sense was indivisible. Apparently such a concept of the sovereign was in Holme's mind when he asserted that one cannot sue a sovereign because that would put a sovereign above the sovereign. But not one of the fifty states, nor the United States itself, is such a sovereign.'

SOURCE: 'NARROWING THE NATION'S POWER' by John T. Noonan, Jr., pp. 151-152, ISBN 0-520-23574-6.

(John T. Noonan is a Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit.)

There are NO States Rights nor even Federal Rights - ONLY Peoples Rights.

Michael Woods, 1938 - 2008: A Personal Tribute

I first met Michael Woods when he was selected to stand as the Scottish National Party candidate for the Pitteuchar Ward in Glenrothes at the elections to the former Kirkcaldy District Council in 1992. The Pitteuchar Ward was held by the Labour Party and considered to be a safe seat which Michael was not expected to win. However, Michael's exuberance created so much confusion that the Labour Party thought that the SNP had targeted the Ward and therefore 'flooded' the area with their own activists - even the Labour Member of Parliament for Central Fife! His actions allowed Central Fife SNP to concentrate on its target Wards free of Labour Party action. Michael won the seat and such was the trust that people had in him that he was re-elected at every subsequent election until he decided to stand down, for health reasons, in 2007.

Whenever Michael encountered deliberate deception he would be outraged. Election campaigns would often be livened up by him. Discussion with Michael could aid understanding about the subject and made it possible to get a different perspective on the matter. Sadly Michael died the week before the Glenrothes By-Election. He would have been appalled by the negative campaigning, scaremongering and misinformation used by the Labour Party and its apologists.

"Thankyou for your contribution Michael - you'll be missed by many."

The Sovereignty of the Scottish People

'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.'

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

Between the Treaty of Union in 1707 and the establishment of the devolved Scottish Parliament in 1999 constitutional law in Scotland developed into its present form where 'the sovereignty of the Scottish people' now rests with the total registered electorate. During this intervening period sovereignty lay with the United Kingdom Parliament at Westminster, and to a certain extent it still does - but not for long. The Treaty of Union did NOT abolish Scots Law as Article XIX makes clear. This temporary loss of sovereignty has to be seen against the background of where the Parliament of Great Britain is located. The siting of that Parliament at Westminster, the location of the Parliament of England, meant that it was within the jurisdiction of English Law and beyond the reach of Scots Law. In his book Gordon Donaldson writes -

'But the theories of English constitutional lawyers prevailed, and the union has proved to have no more sanctity than any other statute. From time to time attempts have been made to appeal to the terms of union, but always without success. The list of violations of the treaty is already a long one and always growing longer.'

- 'Scotland: The Shaping of a Nation', by Gordon Donaldson, pp 58-59, ISBN 0 7153 6904 0.

In an important 1954 legal finding in the Scottish Court of Session Lord Cooper wrote -

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

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

Against this background the view that 'the sovereignty of the Scottish people' has 'merely been unavailable' is the only possible explanation. British Unionists who still insist that Scottish independence is a matter of 'NEVER' or 'IF' are in denial - Scotland WILL regain its independence and international sovereignty. Only through independence will 'the sovereignty of the Scottish people' become fully available.

Only one country has ever created a form of government based on popular sovereignty (sovereignty of the people) - the United States. The opening words to the Constitution of the United States, 'WE THE PEOPLE', clearly imply popular sovereignty, which was most likely the intention of James Wilson when he penned the phrase.

'Jefferson, concerned that the state legislatures were assuming executive and judicial power, as well as legislative, was prompted to observe..."An elective despotism was not the government we fought for."'

- 'The Federalist Papers', Penguin Classics Edition edited by Isaac Kramnick, p. 25, ISBN 0-14-044495-5.

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

- James Madison, Federalist 46

The following quotations were all found at this URL: http://etext.virginia.edu/jefferson/quotations/jeff0300.htm -

"[The people] are in truth the only legitimate proprietors of the soil and government."

- Thomas Jefferson to Pierre Samuel Dupont de Nemours, 1813. ME 19:197.

"[It is] the people, to whom all authority belongs."

- Thomas Jefferson to Spencer Roane, 1821. ME 15:328

"The ultimate arbiter is the people of the Union."

- Thomas Jefferson to William Johnson, 1853. ME 15:451.

Unfortunately, in the United States, the concept of popular sovereignty has become corrupted and defiled by elitism and political self-interest by both major political parties. In his book John T. Noonan, Jr. writes -

'Nowhere in the entire document are the states identified as sovereigns. The claim that the sovereignty of the states is constitutional rests on an audacious addition to the eleventh amendment, a pretense that it incorporates the idea of state sovereignty...But not one of the fifty states, nor the United States itself, is such a sovereign...It is not directly or indirectly ascribed to the states by the constitution of the United States.'

- 'NARROWING THE NATION'S POWER' , by John T. Noonan, Jr., pp 151-152, ISBN 0-520-23574-6.

In 1787 popular sovereignty was an idea that was ahead of its time but now, in the 21st century, it is an idea whose time has come. Popular sovereignty belongs to all people and not just a select few.

'It's coming yet for a' that That Man to Man, the world o'er Shall brithers be for a' that.'

- 'For A' That and A' That' by Robert Burns (1759 - 1796)

Scotland's Political Awakening

NOTE: SORRY ABOUT THE APPEARANCE OF THE TABLES. I THINK I KNOW WHAT THE CAUSE IS. IN THE MEANTIME I HAVE INSERTED "/" BETWEEN THE HEADINGS AND FIGURES.

"ask not what your country can do for you, rather ask what you can do for your country."

- President John F. Kennedy (from his Inauguration Speech - January 20, 1961)

The Scottish Parliament elections in May 2007 changed the political map of Scotland in a way that showed that the people could no longer be taken for granted - particularly by the Labour Party. Many years ago the Labour Member of Parliament (MP) for Central Fife said that "the people of Fife would vote for a turnip if it had a red label". In the years following the unsuccessful referendum in 1979, for a devolved Scottish Assembly, political confidence amongst the electorate in Scotland plummeted. In Central Fife support for the Scottish National Party (SNP) fell from over 30% to just over 11%.

The voting method for the Scottish Parliament elections is a hybrid of the First Past The Post method and a 'top-up' from a Closed Regional List using the d'Hondt Formula to produce a broadly proportional result. There are 73 Members of the Scottish Parliament (MSP's) elected by FPTP and 56 from the Regional Lists. Here is an overall breakdown of the results of last year's elections to the Scottish Parliament -

SCOTTISH PARLIAMENT ELECTIONS - MAY 2007

PARTY

VOTE%

SEATS%

SEATS%

TYPE: [A]/ FPTP [B]/ ALL SP [C]

SNP 32.70 /28.77 /36.43

LAB 32.26 /50.68 /35.66

LIBDEM 16.23 /15.07 /12.40

CON 16.65 /5.48 /13.18

OTHER 2.16/ 0.00 /2.33

TOTALS 100.00 /100.00 /100.00

PARTY DIFFERENCE /SEATS

TYPE: [B-A]/ [C-A] /FPTP /ALL SP

SNP -3.93 /+3.73 /21 /47

LAB +18.42 /+3.40 /37 /46

LIBDEM -1.16 /-3.83 /11 /16

CON -11.17 /-3.47 /4 /17

OTHER -2.16 /0.00 /0 /3

TOTALS -/-/73 /129

The FPTP results show that the Labour Party benefits disproportionately from that method of voting. Average voter turnout was 51.46%, hopefully the Scottish Parliament election results, combined with those for the Councils, will bring about an increase in voter turnout which was regularly 65%-75% about 25 years ago. Before the election campaign the Labour Party was in a state of panic, during the campaign it became absolute panic and since the elections they've been completely clueless.

The election results for Central Fife since the Scottish Parliament was established in 1999 are as follows -

SCOTTISH PARLIAMENT ELECTIONS IN CENTRAL FIFE

PARTY VOTE% /VOTE%/ VOTE%

YEAR: 2007 /2003 /1999

SNP 44.20 /30.59 /30.91

LAB 39.88 /41.38 /57.31

LIBDEM 8.49 /6.74 /5.94

CON 7.43 /7.04 /5.84

SSP - /5.43 /-

IND - /8.82 /-

TOTALS 100.00 /100.00 /100.00

An aspect of the elections in Scotland, last year, that was overlooked by the media outwith Scotland was the fact that there were Council elections in Scotland on the same day. They were overshadowed by the fiasco of rejected ballot papers in the Scottish Parliament elections, which was mainly due to political interference by a UK Government Minister (Labour) in the design of the ballot paper. The Labour/Liberal Democrat Scottish Executive was also warned of the confusion that would result from having the Scottish Parliament and Council elections on the same day using three different voting methods - they chose to ignore it. For the first time the Single Transferable Vote (STV) method of Proportional Representation was used for the Council elections in Scotland. The introduction of STV was met with strong resistance from within the Labour Party. The local 'fiefdoms' and 'one-party states' of the Labour Party in Scotland have been ended forever and the 'politics of fear' as well as the 'control freakery' that permeates that Party no longer work. In the media reporting of the Council elections in Fife mention was made of the dominance of Scottish politics by the Labour Party for the last 50 years saying "however, in parts of Fife it is nearer 100 years". The table below shows the comparison to the number of Councillors (by Party) that were elected in 2003 when FPTP was used -

COUNCILLORS ELECTED IN SCOTLAND

PARTY 2007 /CHANGE / 2003

METHOD: STV / +or- /FPTP

SNP 363 / +182 /181

LAB 348 / -161 /509

IND 192 / -39 /231

LIBDEM 166 / -9 /175

CON 143 / +20 /123

All of the SNP candidates in Central Fife who stood for election to Fife Council were elected. In Central Fife it used to be suggested that in the Levenmouth part of the constituency it would be easier to weigh the Labour vote than count it. Inevitably, at the count, a Labour activist would shout across the hall - "Someone in Methil voted Tory [Conservative]" - not any longer.

After having witnessed the significant changes in elected political representation achieved by the use of STV I have no hesitation in recommending its use in multi-member constituencies. Using STV the 'political virility' symbol of the size of a majority and the 'wasted vote' argument cease to exist. The Alternative Vote (AV) method is also a majoritarian method like FPTP, however, it has the advantage that, unlike FPTP, the winner has to obtain 50% of the vote. In a genuine democracy an electoral system (method of voting, constituency boundaries etc.) exists for the benefit of the people. The electoral system and the people DO NOT exist for the benefit of political parties.

"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].

Scotland in Europe

Scotland's trading links with other European countries were many and varied as the following extracts show -

'From Haddington on 11 October [1297] the two [William Wallace and Andrew Murray] wrote to the mayors and communes of Lubeck and Hamburg. The letter had a double intention. It informed the readers that Scotland, an independent kingdom again, had been won back by battle from the English. It was at the same time in the nature of the reopening of those Scottish trading connections with Germany which had been a feature of the reign of Alexander III.'

Source: 'WILLIAM WALLACE' by Andrew Fisher, pp. 118-119, ISBN 0 85976 557 1.

'There was a good deal of trade with England, largely by sea with east coast ports. The proximity of English markets became so attractive as to nullify the effects both of political hostility and of legislation designed to keep Scottish raw materials at home and encourage native manufactures; Scottish wool was always welcome in England, and English cloth welcome in Scotland. This was plain in the sixteenth century...To France went wool, cloth and salt fish, in return for wines from Gascony and various delicacies and luxury articles. The Low Countries were early established as the chief outlet for Scottish exports. By 1296 the Flemings had a depot in their Red Hall in Berwick, and from the next century a port in the Netherlands - Middelburg, Bruges or Veere - was the Scottish 'staple', through which the principal exports passed and where a 'conservator of Scottish privileges in Flanders', appointed by the Scottish crown, guarded the goods and interests of Scottish merchants. To the Low Countries the Scots sent wool, skins and hides, and later coal, salt, cloth, stockings and herring, in return for spices and clothing. German merchants had their Scottish headquarters in the White Hall at Berwick in the thirteenth century, and when Wallace liberated Scotland in 1297 he wrote to Lubeck and Hamburg telling them that they could resume their trade. That there was already commerce with Norway is indicated by a clause in the treaty of 1266 [Treaty of Perth]; in later times corn (in time of plenty), cloth, skins, coal, salt and fish went to Scandinavia and the Baltic in return for corn (in time of dearth), iron and prodigious quantities of timber. By the end of the Middle Ages wine was coming from Spain as well as France.'

Source: 'Scotland: The Shaping of a Nation' by Gordon Donaldson, pp. 203-204, ISBN 0 7153 6904 0.

Scotland also has other historical connections with mainland Europe which include the military service of Scots either as mercenaries or in an official capacity. In the 16th and 17th centuries Scots fought for Sweden, Poland, Germany, Russia and the Netherlands. There was a Scots Brigade in the Netherlands during the War of the Spanish Succession (1701 - 1714). Scots fought in the armies of Gustav Adolphus of Sweden during the Thirty Years War (1618 -1648). Military service to the kings of France was established in 1295 by the French Alliance which lasted until 1560 and became known to Scots as the 'Auld Alliance'. In the 17th century Peter the Great hired General Patrick Gordon, from Aberdeen, to lead the Russian army. During the Spanish Civil War (1936 - 1939) Scots were part of the 15th International Brigade. They fought in defence of the Republican government against the Fascist forces of General Franco. Two notable Scots who became well known for their military service overseas are Samuel Greig and John Paul Jones (Father of the United States navy). Born in 1735 Samuel Greig achieved fame in the navy of Catherine the Great, Empress of Russia. He bacame famous for his role in the Battle of Chesme Bay in 1770 against the Turkish fleet. In 1782 she appointed him a full Admiral. His last battle was against the Swedish fleet in the Baltic Sea in July 1788. Catherine the Great bestowed on Greig the Russian Order of St. Andrew but later that year he died on board his ship 'The Rostislav' and was given a state funeral by her, his mausoleum is in Tallin, Estonia. In 1998 a contingent of 60 sailors from the Russian navy presented a memorial tablet to the hometown of Admiral Samuel Greig, Inverkeithing in Fife. John Paul Jones (born as John Paul he added the Jones later), born near Kirkudbright in Galloway in 1747, was also invited to join the Russian navy following the reputation he gained during the American Revolution ("I have not yet begun to fight"). He was made a Rear-Admiral in the Russian navy and defeated the Turkish fleet in the Black Sea in 1788.

In 1975 the Scottish National Party (SNP) campaigned for a 'No' vote in a referendum on continued membership of the European Economic Community (EEC). This was based on the premise that Scotland should not be forced to join the EEC as part of a member state that was originally created through the Treaty of Union of 1707 rather than opposition to the EEC on any grounds. At its annual conference in 1983 the SNP adopted a pro-EEC stance, then at the 1988 annual conference the policy of 'Independence in Europe' was adopted.

Scotland became part of the European Economic Community (now the European Union) in 1973 by virtue of the accession of the United Kingdom (to use the abbreviation of the formal name - United Kingdom of Great Britain and Northern Ireland) to the Treaty of Rome (1957). The first direct elections to the European Parliament were held in 1979 in which Scotland returned 8 Members of the European Parliament (MEP's), one of whom was Winnie Ewing (SNP). Such was her impact that she earned the nickname "Madame Ecosse", Winnie retired as an MEP in 2003. Until 2004 those elections were conducted in the UK using the First Past The Post (FPTP - Simple Majority) method of voting. In 2004 the number of MEP's returned was reduced to 7 and in June 2009 it will further be reduced to 6 (at present Scotland has 2 SNP MEP's). Following the Treaty of Lisbon the European Parliament will have up to 750 elected members with each member state having a minimum of 6 and a maximum of 96 MEP's. These numbers are apportioned to member states on degressive proportionality, which means that that while the size of the population is taken into account smaller states will elect more MEP's than would be strictly justified by their population alone, however, it is up to the individual member state to determine how seats are allocated but they may not be divided up in a way which would no longer be proportional. Throughout the European Union the Parliaments constituencies are formed on a member state basis, however, there are 6 member states in which this is not the case and their national territory is sub-divided into European constituencies, they are - Belgium, France, Ireland, Italy, Poland and the United Kingdom. In 2009 Denmark, with a population of 5.42 million, Slovakia, with a population of 5.28 million, and Finland, with a population of 5.25 million, will each get 13 MEP's, Ireland, with a population of 4.21 million, will get 12 MEP's, however tiny Luxembourg, with a population of 460,000 will get 6 MEP's. What these figures show is that Scotland, with a population of about 5.1 million and which will only have 6 MEP's in 2009, is effectively penalized for being part of a larger member state.

Decision making in the European Union (EU) is a complex matter as various institutions of the EU are involved, such as the European Parliament, the Council of the European Union (Council of Ministers) and the European Commission. Although the Parliament has the right to initiate legislation it can only do so by asking the Commission to submit a proposal. Qualified Majority Voting (QMV) is used in the Council of Ministers and is a mechanism which prevents the fewer but much larger member states from being able to impose their wishes on the smaller member states. Currently about 75% of the votes of Council members are required for a proposal to be passed. From 2014 Qualified Majority Voting will be based on the principle of the double majority, that is 55% of member states representing at least 65% of of the EU population, a blocking minority must consist of at least four member states to make it impossible for a small number of the more populous member states to prevent a decision from being adopted. Irrespective of this there is, however, a problem where Scotland's interests are concerned, particularly in the deep-sea fishing industry. Representation in the Council of Ministers is restricted to the official delegations from the 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 Edinburgh, has no fishing fleet but has the power to influence decisions that could have a significant impact on the fishing industry in Scotland.

The following is an extract from the preface by Nelly Maes, President of the European Free Alliance (EFA), to the book 'European Free Alliance: Voice of the peoples of Europe - The first 25 years (1981 - 2006)' -

'"The EFA seeks to confine to the history books all injustice with regard to languages and communities minorities and stateless nations."

A European Union that merely recognises the rights of states cannot lead to true democracy and lasting peace. The denial of the rights of peoples and regions, of their language and culture and of their right to self-determination remains a source of frustration and dispute in many European states and abroad.

On the other hand, the narrow-mindedness and self-interest of the member states are preventing Europe from becoming a true champion of human rights, development and peace on a global scale.

Free peoples who can experience their own identity as a nation, a region or language community and who work together to create the democratic institutions that shape the European Union politically: that is the dream of the European Free Alliance.

We want to realise this dream through peaceful and democratic political action rather than resorting to violence. 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, or when poverty, war and environmental disasters threaten the lives of millions. 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.'

There are now thirty political parties (including the SNP since 1989) throughout Europe which are currently members of the European Free Alliance. At a meeting in Edinburgh in January 2008 a joint EFA declaration was made demanding the recognition of internal enlargement. Internal enlargement is the process by which non-state nations within the EU will be granted full membership status once they have achieved independence.