SCOTLAND’S CLAIM OF RIGHT PART 2

The Forgotten Condition of Union 

When the parliaments of England and Scotland ratified the Treaty of Union in 1706 and 1707, a new state came into existence, the United Kingdom of Great Britain. The negotiations for this single, unified state had been long and difficult and there was one, especially thorny obstacle. The two nations had opposing and irreconcilable constitutions. 

In England, (from the Bill of Rights in 1689), parliament and the crown were ‘sovereign’ over the people. Parliament set the limits of law and of civil liberties and answered to no higher authority. In contrast, the source of power in Scotland was – and remains – the nation itself; it is the people who are sovereign over and who limit the power of government. 

This is known as popular sovereignty and this uniquely Scottish constitution has existed for at least seven hundred years as recorded:

⁃ in the Declaration of Arbroath of 1320, 

⁃ in the interregnum governments of the Greater Council during the minority of four monarchs

⁃ in the practice from 1592, codified in 1663, of salvo jure cujuslibet at the end of each parliamentary session, (by which Scots could challenge the Crown or parliament over legislation that prejudiced their ‘private’/civil rights)

⁃ in the Claim of Right Act of 1689, 

⁃ and in the continuing provision in Scots law for the population to have any statute set aside by the Court of Session.

The incompatibility of the two constitutions was never resolved. Instead, it was agreed that the two nations would retain their constitutional differences, with a guarantee that in post-Union Scotland the conditions of popular sovereignty would continue. This guarantee took the form of an insertion into the ratifying Acts, (the Acts of Union):

Union with Scotland Act 1706, 1706 CHAPTER 11 6 Ann X1 Recital of Articles of Union, dated 22d July, 5 Ann.; and of an Act of Parliament passed in Scotland, 16th January, 5 Ann.)

Most gracious Sovereign

Whereas Articles of Union were agreed…. And that Your Majesty with Advice and Consent of the Estates of Parliament for establishing the Protestant Religion and Presbyterian Church Government within the Kingdom of Scotland had passed in the same Session of Parliament an Act intituled Act for securing of the Protestant Religion and Presbyterian Church Government which by the Tenor thereof was appointed to be inserted in any Act ratifying the Treaty and expressly declared to be a fundamental and essential Condition of the said Treaty or Union in all times coming…

Article XXV  Part II

And the Tenor of the aforesaid Act for securing the Protestant Religion and Presbyterian Church Government within the Kingdom of Scotland is as follows. 

… And more especially Her Majesty with Advice and Consent aforesaid ratifies approves and for ever confirms the Fifth Act of the first Parliament of King William and Queen Mary intituled Act ratifying the Confession of Faith and settling Presbyterian Church Government with all other Acts of Parliament relating thereto in Prosecution of the Declaration of the Estates of this Kingdom, containing the Claim of Right bearing date the Eleventh of April One thousand six hundred and eighty nine …

… And it is hereby statute and ordained that this Act of Parliament with the Establishment therein contained shall be held and observed in all time coming as a Fundamental and Essential Condition of any Treaty or Union to be concluded betwixt the two Kingdoms without any Alteration thereof or Derogation thereto in any sort for ever As also that this Act of Parliament and Settlement therein contained shall be insert and repeated in any Act of Parliament that shall pass for agreeing and concluding the foresaid Treaty or Union betwixt the two Kingdoms and that the same shall be therein expressly declared to be a Fundamental and Essential Condition of the said Treaty or Union in all time coming which Articles of Union and Act immediately above written Her Majesty with Advice and Consent aforesaid statutes enacts and ordains to be and continue in all time coming the Sure and perpetual Foundation of a compleat and entire Union of the two Kingdoms of Scotland and England under the express Condition and provision that this approbation and ratification of the foresaid Articles and Act shall be no ways binding on this Kingdom until the said Articles and Act be ratified approved and confirmed by Her Majesty with and by the Authority of the Parliament of England as they are now agreed to approved and confirmed by Her Majesty with and by the Authority of the Parliament of Scotland

Thus the Claim of Right Act was ratified along with the Treaty, not as one of the articles of the Treaty (though it has been inserted under Article XXV),  but in its own right, as, “a fundamental and essential Condition of the said Treaty or Union” so that, as Daniel Defoe wrote, in post-Union Scotland:

The Laws of Government continue as the Government continues establish’d in the Claim of Right, I mean as to the Limitations of Government and Obedience; Nor has Scotland suffered any Loss, but rather been a manifest Gainer in this Point by the Union; The Privy Council Tyranny being abolish’d, who had arrived to that Height in Scotland, as to give their Acts almost of an equal Authority to Acts of Parliament…

Defoe was a merchant, businessman, nonconformist, writer and pamphleteer, (some 545 pamphlets are ascribed to him) , as well as the  confidant and spy of King William II. Some of his writings are considered the earliest examples of modern journalism and they provide us with a record of a contemporary awareness of the constitutional problem and the recognition that it was resolved by the ratification of the Claim of Right. 

But what was understood in 1707 has been air-brushed out of official history. Not even our devolved government appears to remember that the Claim of Right articulates the core constitution of Scotland – or that both the Treaty and the Union are conditional on the constitutional principles it contains remaining in force, and protected, in Scotland. Nor to understand exactly what was – and still is – legally protected

BEAT THE CENSORS

Sadly some sites had given up on being pro Indy sites and have decided to become merely pro SNP sites where any criticism of the Party Leader or opposition to the latest policy extremes, results in censorship being applied. This, in the rather over optimistic belief that this will suppress public discussion on such topics. My regular readers have expertly worked out that by regularly sharing articles on this site defeats that censorship and makes it all rather pointless. I really do appreciate such support and free speech in Scotland is remaining unaffected by their juvenile censorship. Indeed it is has become a symptom of weakness and guilt. Quite encouraging really.

FREE SUBSCRIPTIONS

Are available easily by clicking on the links in the Home and Blog sections of this website. by doing so you will be joining thousands of other readers who enjoy being notified by email when new articles are published. You will be most welcome.