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Reader Post | By Kangaroo
Prologue
In the case of MacCormick and Another v Lord Advocate 1953 Court of Session (on appeal)*
Lord President Cooper remarked
The principal of the unlimited sovereignty of Parliament is a distinctively English principal which has no counterpart in Scottish constitutional law. ~ … ~Considering that the Union legislation extinguished the Parliaments of Scotland and England and replaced them by a new Parliament, I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done. ~…
Introduction
Well our ancestors weren’t stupid, they did the best they could with an English Naval blockade and an Army at the border. The Darrien expedition failed due to the blockade. Scots possessions in England were to be seized and Scots treated as “aliens”. The English clearly had “Mens Rea”, a guilty mind, and were threatening invasion. So the Scots took the money, kept their English lands and prevented mass casualties, but by signing a treaty, they left the door with a key in the lock.
Lord Cooper’s remarks invite us to examine what was done, so lets have a look, let’s examine the Treaty* and its implications for Sovereignty, the Constitution and the Law and the realisation that the merger could not be achieved and so a compromise was reached which camoflaged the situation.
The Treaty
The Treaty of Union has stood as the framework for the United Kingdom since 1st May 1707. It is what binds Scotland and England together, it needs to be examined and interpreted. This examination includes both what it actually says and what it omits, the latter being the more significant.
The Treaty is a legal document and should have a reference to the dictionary of terms. Failing that then the reader is entitled to use the ordinary meaning of words. The dictionary would naturally have to be one that existed prior to 1706. I can’t find a reference to a dictionary.
Don’t worry if you are not a lawyer as long as you can read and interpret the words. The key here is don’t make assumptions, the Treaty should be read as is without embellishment. The interpretation should be, in the words of the Pharaoh “As it is written, so shall it be”.
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Sovereignty
Article 1 of the Treaty is by far the most important as it links the two Kingdoms as being united as Great Britain. It states as follows
“That the two Kingdoms of Scotland and England, shall, upon the first Day of May next ensuing the Date hereof, and for ever after, be united into one Kingdom by the Name of Great-Britain,..~.”
Now there is a clear distinction between a Country and a Kingdom. If one goes outside and picks up some dirt, it has the characteristics of visibility, smell, touch, taste, and if you drop it you can hear it hitting the ground. This is the “Country or Land” where people live, so Scotland and England refer to a real tangible item defined by geographical boundaries inhabited by Scots or Angles as the case may be, a Country. A “Kingdom” has none of these characteristics, it is abstract, ethereal, imaginary and intangible a purely Political concept existing solely in the minds of men.
For the two Kingdoms to be fully united as one, with one all powerful polity requires that Sovereignty be identical in the two Kingdoms. This was never the case, in the Kingdom of Scotland the people were Sovereign and in the Kingdom of England it has jumped from Monarch to Parliament and back on various occasions, to my knowledge it has never been with the people. This anomaly is obvious when you consider that James VI titled the King of Scots, became the King of England in 1603. If the Sovereignty had been the same the Kingdom of England would have been incorporated and renamed the Kingdom of Scotland. This was not done, confirming two crowns on one head and not a union of the crowns. In the ensuing century the Monarch was variously executed and forced into exile with Oliver Cromwell proclaiming the English Parliament to be Sovereign in the interregnum.
Royal Assent
The Monarch has to Assent for a Bill to be passed. That makes sense in the English Kingdom as the Monarch is Sovereign and therefore has veto power, not so in the Scottish where the Monarch is obligated to Assent as Parliamentary votes carry the people’s Sovereignty.
The Constitution
Asked in the House of Commons whether the United Kingdom has a Constitution Jacob Rees-Mogg quipped “Yes, an unwritten one” or words to that effect. Wikipedia suggests that what is really meant is an “uncodified Constitution” a constitution by various written and unwritten laws and customs. So it exists and there being no evidence that it has solely been created since 1st May 1707 then it must have existed, at least in part, prior to the Treaty of Union, and was not extinguished by the Treaty. As the source must have been one or both parties to the Treaty it follows that both Kingdoms Constitutions must have carried forward. So the written Scottish Constitution must be extant as does the English. They were either commingled by the Treaty or they remained separate and distinct. If commingled then the written Scottish Constitution must be superior to the English given that they cannot readily identify their version. If not then both constitutions exist in the present but only have effect in the jurisdictions corresponding to their previously existing boundaries.
The Law
Now Article XXV suggests that the Laws of the two Kingdoms continued but effectively remained separate except for the specific provisions of the Treaty that stated otherwise.
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The Compromise
Now we have the situation that the Sovereignty, Constitution and the Laws of Scotland remain extant, at least in Scotland.
The differing Sovereignty and Constitutions were never resolved, they were conveniently ignored and the concept of the “Crown in Parliament” introduced as the compromise position. The two parties having voting blocks which largely agreed and where disagreement happened then the overall majority won out.
This is NOT the implication of the Treaty. Neither Sovereignty or the Constitution were mentioned, and as Sovereignty belonged to the Scottish people it could not be transferred to the new united Kingdom of Great-Britain. The two Sovereignties being oil and water could not be commingled and therefore must logically coexist. Similarly by their admission that the United Kingdom has an unwritten Constitution then the Scottish Constitution must also persist. Scottish law is extant as described in the Treaty. So in regard to the three crucial matters the Treaty has hardly changed the lawful situation at all. So in all respects the United Kingdom is a pretence, a mere relabelling of the previously existing Kingdoms in an effort to disguise reality.
Parliament of Great Britain
In fact logically and indeed “lawfully”, the Scots Members of Parliament simply moved from Edinburgh to London and in moving they took the Scottish Parliament with them. Two distinct Parliaments sitting in the same Chamber, each Parliament representing their respective Kingdoms.
So we have a United Kingdom in name only and these two voting blocks must be counted separately and legislation only passed for Great-Britain, as a whole, if both blocks agree. If only one block passes a bill then that can only be for that particular Kingdom and not for the other, alternatively some bills may carry a veto where both blocks must pass the bill otherwise it does not become law.
So the Kingdom of England has no rights over the Kingdom of Scotland or the Country and cannot remove resources, real things, of any kind without Scots express agreement.
Further examination of the Treaty and the above commentary reveals that there is no impediment to the establishment of a Scottish Central Bank, a mint etc and a reduction in UK Government offices in Scotland including UK Income Tax and Immigration. Gas and Oil drilling licences can be cancelled and reissued by the Kingdom of Scotland, all revenues being Scottish.
By now you’ve got the drift, enforcing the Treaty provisions means Scotland can administer all the economic levers necessary to improve the way of life of its people.
I’m sure there are benefits in retaining the UK, for example joining EFTA and transiting goods via the Channel ports and/or creating a Northern Ireland style of EU Customs checks.
*Google
“maccormick and another v lord advocate on appeal” for Lord Coopers remarks.
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“Treaty of Union 1707” for the full version of the Treaty
Regards
Kangaroo
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