HISTORY AND LANGUAGE MATTERS.
This is an article authored by Xaracen, a regular commenter on Yours for Scotland. More about the author at the end of his article. So, for their own safety, they retreated to this summer house in a private garden to sign away Scotland’s sovereignty in peace.” They didn’t own Scotland’s sovereignty in the first place,Continue reading "HISTORY AND LANGUAGE MATTERS."
This is an article authored by Xaracen, a regular commenter on Yours for Scotland. More about the author at the end of his article.
So, for their own safety, they retreated to this summer house in a private garden to sign away Scotland’s sovereignty in peace.”
They didn’t own Scotland’s sovereignty in the first place, so they couldn’t possibly have signed it away, but Westminster claims, considers, and acts as if they did exactly that.
What they actually signed away was Scotland’s Parliament and its statehood, giving them under the Treaty to the new Parliament of the UK, created to govern both kingdoms jointly. In essence both the old parliaments merged in the Palace of Westminster as a single parliament containing two sets of MPs to represent the two kingdoms. I take great issue with the nature of that joint governance.
Language really matters here as it does in many things. That’s one of the reasons we have lawyers, and why legal language requires to be as precise as possible to minimise the risks of ambiguity. Westminster as an institution just absolutely loves ambiguity, it employs it in its favour almost every day, because it gives the English establishment all the wiggle room they need to keep Scotland under their thumbs. And an unwritten constitution is about as ambiguous as one could get.
A good example of how ambiguity favours the English establishment is the Sewel Convention, which, even after it was ‘enshrined in legislation’ as an agreed recommendation of the Smith Commission and accepted as such by the UK Parliament, is now treated by Westminster as effectively meaning the exact opposite of what its words actually say. The ‘enshrining in legislation’ was meant by the Commission to put the casual dismissal of the convention by the UK Government out of their easy reach, but the legislation was neutered by the use of the word ‘normally’, and its resulting lack of justiciability was confirmed by the UK’s so-called Supreme Court. So much for agreement and legal clarity.
The authority that Westminster enjoys as the Parliament of the United Kingdom over Scotland cannot be based on England’s sovereignty nor on England’s constitution, as neither can possibly have any legitimate standing in Scotland because she had and still has her own sovereignty and constitution, and neither of those was ‘signed away’ because the signers (including the Scottish commissioners, the Scottish monarch, and the Scottish parliament) simply didn’t have the requisite authority under Scotland’s constitution and Scotland’s sovereignty to do that. Instead, it seems clear to me that the UK Parliament’s authority over Scotland has to be based exclusively on Scotland’s own sovereignty, but crucially, on only a delegated form of that sovereignty, because that was the only form that Scotland’s commissioners and parliamentarians had, and not the genuine sovereignty of the Scots themselves, who still own it today. Pretty much by definition, delegated sovereignty is always outranked by the original, and that is why any governance of Scotland and the Scots can only be by their consent. That was the case for centuries before 1707, and it is still the case today in spite of Westminster’s best efforts to pretend otherwise.
The precise legal mechanics of how Westminster can use that sovereignty can be argued over, no doubt, but I haven’t seen anything that gets to grips with it. I do have my own view on it, though, which is this;
I have argued in the past that the Scottish sovereignty exerted by Westminster can only have come in the form of the inclusion within it of the Scots MPs, who alone in the joint Parliament of the two kingdoms of England and Scotland, represent the Scottish founder of the Union, the other founder being represented by all the other MPs. It is the Scots MPs who represent the sovereignty of the Realm of Scotland in that place, and there is no other body or institution that can do so, because the representation of Scotland in the governing body of the UK is precisely what our MPs are there for, in precisely the same way that England’s MPs are there to do. And there is certainly nothing about the non-Scots MPs that gives them any formal power over Scotland at all, and even more certainly nothing that outranks that of the Scottish elected representation who alone unequivocally wield the sovereignty of Scotland’s people on their behalf.
The Union was an agreement between two equally sovereign kingdoms, and obviously neither kingdom had any authority over the other, because that’s what being sovereign means. It then clearly follows that neither kingdom’s representatives in the new Parliament can have any authority over the other kingdom’s representatives. In turn that means their differing numbers in the Parliament can have no lawful bearing on that constitutional and sovereign fact. Westminster’s simple majority voting system, carried out without any regard to the differing and continuing sovereignties in the representation, is simply nowhere near nuanced enough to make its alleged democratic credentials a legitimate justification for denying the sovereignty of Scotland as an equal partner in the Union while vastly emphasising England’s sovereignty on the basis of mere size. The voting system worked perfectly well pre-1707 when every MP was the equal of every other MP and they all spoke for the Kingdom of England, but this simplicity was inadequate post-1707, with two different kingdoms being represented with differing sovereignties and constitutions, and where neither can be subsidiary or superior to the other.
Given the above, it is a clear and illegitimate mockery of Scottish sovereignty and the Scottish constitution that England’s MPs consider themselves fully entitled to overrule the Scottish representation to enforce English-desired legislation on Scotland against a clear majority of the Scots MPs. But since none of the non-Scots MPs own any legitimate authority over Scotland by themselves, then overruling the Scots MPs on any matter they are entitled to consider is unlawful, unconstitutional, and ultra vires under the Treaty of Union and under the Scottish constitution, because it puts the sovereignty of Scotland entirely at England’s disposal without the consent of the true owners of that sovereignty. This is nothing more than majoritarian constitutional bullying, and that is precisely how England’s MPs have used it, and Scotland has suffered greatly over the centuries as a direct result of that intentional abuse.
Enough is enough! Something has to be done about this.
I have argued in the past for a simple change that would go a long way to restore to our representatives their Scottish authority in Westminster, by making a change in the rules governing Westminster’s voting system. At the moment, that voting system completely ignores the fact of the differing sovereignties of the two kingdoms’ representations, so that a simple majority carries the day. Since England’s representation is massive compared to Scotland’s then virtually every voting outcome is an English outcome, even if Scotland’s MPs voted unanimously against while England’s barely bothered to vote at all. But by requiring that the votes of the Scottish kingdom’s representatives be counted separately from those of the English kingdom’s representatives, and requiring joint majorities before any amendment or bill or motion can be passed, a UK Parliamentary vote that will apply to both kingdoms must come down to just two votes, one English vote versus one Scottish vote. Scotland would be far better able to defend itself from the abuses of the English establishment, and it desperately needs such a defence.
An alternative might be to take a leaf out of the European parliament’s rule book, whereby every country’s representation in the parliament is granted a veto, introduced precisely to prevent the kind of majoritarian bullying England has been inflicting on Scotland for centuries, apparently entirely oblivious to the gross unfairness and the intense resentment it generates here.
Either of these simple rule changes could be made in Westminster very easily, but the Westminster establishment under any of its always-English governments will never do it without very strong pressure from the Scots MPs and from their constituents and hopefully other interested parties. And coming back to the necessity of precise and careful language, any such proposed rule change must take great care not to permit any ambiguity that might provide useful wiggle room to give English MPs and/or the English establishment any kind of an unfair edge. If anything, the edge should be given to the Scots MPs for a change.
It could even be argued that it isn’t a constitutional change in itself, as it only restores and confirms what should have been the case all along given the actual continued sovereignties and constitutions of both Scotland and England, but it would certainly alter the balance of power between the two kingdoms to something far more equitable. England’s establishment will hate it. And all by itself it could break the deadlock on Section 30.
In my view our MPs should be demanding this change right now, and constantly making utterly obstreperous pests of themselves until Westminster concedes to it. I think any and all forms of disruption to the operation of Westminster is justifiable to get this appalling abuse of Scotland’s sovereignty corrected. It is unacceptable to Scotland and must be tolerated no longer!
A cogent and intelligent article, well argued. I am encouraged by the growing realisation that we can use Scotland’s ancient constitution to good effect in the 21st Century. A year ago few had heard of the Claim of Right or the fact that Scotland has never joined a territorial Union. That information is now becoming well known and various political impacts are being developed and deployed to good effect. Lively times ahead.
I am, as always
YOURS FOR SCOTLAND
ABOUT THE AUTHOR
I am an ex IT support engineer and manager, and have been retired for just over ten years. I have been an enthusiast of Scotland’s independence for most of my adult life, but until 2011 it was really no more than wishful thinking. In 2012 I joined the SNP after David Cameron declared he’d run the SNP’s neverendum for them if they were too scared to do it. I eventually became an activist, mostly distributing leaflets, and even managed an SNP stall with my son before the referendum, and directly experienced the dishonest tactics of the so-called Better Together side. But after 2016’s Brexit referendum I became increasingly disappointed with the SNP leadership’s ever more obvious lack of motivation and initiative in progressing independence and never making any serious attempt to resist Brexit or to use it to follow through on their declarations, and the final straw was Nicola Sturgeon’s capitulation speech on 31st January 2020.
When Alex Salmond started up Alba, I joined up in the first week. Nothing much happened after that, but I’d been interested for some time in how exactly Scotland got itself into the Union and how Westminster acquired such excessive power over Scotland, and I was trying to make sense of how the legalities worked, or often, failed to work, and then Sara Salyers articles appeared on your blog, and they were a revelation! It was at that point I started commenting on your blog and sometimes in the National, but I decided not to renew my National subscription when it fell due in January, and diverted the subscription instead to Salvo.
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