SCOTLAND’S CLAIM OF RIGHT PART 4

The Story of the Claim of Right – What Every Scot Should Know

A written constitution

The Claim of Right Act, passed in 1689 to legally depose James VII and II, affirms the existence of an enforceable, Scottish constitutional arrangement where the sovereignty of the people limits the power of  government. It comprises two distinct elements: 

a.​the action or effect of the statute in: deposing and replacing James VII and II, ensuring the continuation of a protestant monarchy, assuring the power of the Presbyterian Church in Scotland and excluding Catholics from any position of influence in Scottish society

b.​the constitutional grounds on which this was legally justified

Action and force have been overtaken by time and social change. The grounds on which the Act was passed, however, the limitation of governmental power and the right of the nation to enforce those limits, or popular sovereignty, represent a written and protected constitution. Specifically, the Claim asserts:

I.​a “fundamental constitution” by which the government in Scotland is legally limited

II.​a definition of unlawful ‘invasion’ (violation), of Scotland’s constitution which is the replacement of a “legal limited monarchy” (government) with absolute (sovereign) rule

III.​examples of constitutional violation through breach of those laws that preserve civil rights

IV.​the prescribed consequence of violation: the forfeiture of power in Scotland

V.​the right of the nation to act through the Convention of the Estates as the “full and free expression of the nation”

VI.​the right of the nation, through the Convention, to declare the violator illegitimate

Whatever status historians or courts would prefer, now, to believe about our longstanding, Scottish constitution or the principle of popular sovereignty that is its heart, with the Claim of Right Act, it became written and statutorily codified. Along with the articles of Union, it was ratified and protected as a condition of the Union itself. A legal barrier exists, therefore, to any government seeking to remove Scottish civil rights and liberties. This has not, however, presented a practical barrier to successive governments in either Westminster or, indeed, Holyrood who have behaved as though they were sovereign over the people, rather than the other way around, and without so much as a gesture towards the Act of Salvo, or redress.

Aided by the long absence of our parliamentary records and some complex, (if not dishonest), arguments about the effect of the Treaty of Union, a ‘de facto’ overthrow of the real seat of power in Scotland, the people of this nation, has taken place. But this unlawful seizure of power has depended on ignorance and division for its continuance. Knowledge and a unified people can reverse it.  

Why does it matter who enacted the claim of Right?

The standing in Scottish law of its jurisdiction is such that the Claim of Right remains a core constitutional document in the UK, yet no parliament was involved in its passage. Rather, the Scottish Parliament, dependent on the monarch for legitimacy, was deposed de facto by the Convention of the Estates when James VII was declared to have forfeited the throne. This is the clearest possible illustration of the distinction between the Convention and the Scottish Parliament, a distinction that, once, would have been natural to any Scot. 

But our own history has been written for us for so long that those who take an interest in the subject simply nod along with the historians and jurists who bundle the Convention of the Estates into the apparatus of the Scottish Parliament like some unnecessary and inexplicable, bodily appendage. 

The truth is that, like every other Convention of the Estates, the 1689, ‘revolutionary’ Convention was the representative body of the lenders of power, the people of Scotland, not of the borrowers, the absent king James and his parliament. It comprised nobles, clerics and elected representatives from the burghs and shires, (following a heated and dramatic election campaign). And it had the authority to put the conduct of the monarch to public trial, to rule on the forfeiture of his right to the throne, to articulate the constitution that had been violated and to pass into law the constitutional statute, the Claim of Right. We know this because it did so. 

Both this truth and its implication escaped that famous jurist, Dicey, who complained that the Claim of Right makes unacceptable and dishonest claims to power on behalf of the Scottish Parliament and that it represents:

In effect a demand for every power belonging to the Parliament of England … far exceeding any power which (the Scottish Parliament) actually possessed and exercised before the Revolution of 1689

Of course, this is partly true; the Claim of Right did, (and does), claim the absolute powers exercised by the English parliament – but not for the parliament of Scotland, the borrowers of power. It claims them on behalf of the lenders, the community of the realm, the people of Scotland of which the Convention of the Estates was, as it states, the “full and free expression”. 

On behalf of the nation, not the apparatus of state. 

A key constituent of the lawful disposition of power in Scotland has been both misunderstood and overlooked by the high priests of UK constitutional orthodoxy, who have consequently misunderstood and misrepresented the superior rights of the Scottish people to those of any parliament. 

Those rights, as we have seen, still stand, their force in Scotland protected as a condition of the Union. And as the embodiment of those rights, the Convention, along with the right to recall it, must remain as much protected by ratification as the principles that are the explicit foundation of the Claim of Right.

Ground to Stand Upon

We have a constitution binding on the UK State

The Claim of Right remains a core constitutional document of the United Kingdom. The conditions it imposes on any government in Scotland remain in force so long as the Union remains in place. This means that there is a route to challenge and to claim redress for any parliamentary statute that exceeds the limits of government in Scotland and infringes our constitutional liberties. It also offers a lawful and non-parliamentary route to independence.

We have a constitutional mechanism and the right to recall it

The Convention of the Estates (the assemblies of the communities) remains the physical expression of the nation in the constitutional compact. There can be no popular sovereignty without the means to exercise that sovereignty. Traditionally that has been the Convention of the Estates, a body which represents the lenders of power, (the people), independently of the borrowers of power, (the elected parliament and government). As popular sovereignty is protected so is the right to exercise that sovereignty through the assembly of the communities of the realm, the Convention of the Estates which remains on a kind of legal ‘stand’ to be recalled for this purpose.

We Have a Modern Claim of Right and the Means by Which to Enforce it

We have the right and the power to challenge the legality of parliamentary sovereignty in Scotland and to reverse the abuses committed against our protected rights.  We have, in principle, both the right and the constitutional mechanism to declare this government forfeit under the conditions set out in the Claim of Right and ratified by the parliaments of England and Scotland. 

But …?

The sovereign power of the Scottish people is equally divided amongst us. It has force only through the combined will of the majority of Scots. If we are to reclaim that power, we will have to unite, to reestablish the once flourishing tradition of Councils, Conventions and Assemblies, to begin the process of declaring the “invasion” of our constitution unlawful and to begin replacing an unconstitutional government and power system with the best expression of self-government that we can imagine. 

We will have to be brave enough to believe that we can do it. But is that really a bigger ask than taking on the Westminster juggernaut and trying to win the game on their playing field and by their rules? As if our own did not exist?  Or is it just a matter of taking the first step?The door is open. We need only walk through it.

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.

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