A Union in name only

By John A Coyle

Yes, historically and currently divergent. The wars of Scottish independence 1296 to 1357. Indeed parts of the Kingdom of Scotland's sovereign territory was in the 14th century taken or ceded to England? Therefore, an uneasy peace - if not conquest, colonial - certainly continuous external disputes, trespass and oppression? It is alleged it was said "you bled for Wallace - now bleed for me"? For Scotland  yes but maybe, not the Monarchy and ruling classes? The difficulty with the former Scottish Monarchy and wealth based ruling classes, is it was not a democratic Scottish constitutional process? Not by current domestic and international law standards of fairness, puralist and cultural social cohesion. Therefore, nor was the Union and Settlement between Scotland and England? This agreement / treaty was based on and revolving around, a ruling classes dynastic dynasty. Confounded by the Darien scheme / venture company of Scotland 1693 - 1695. Which was a very suspicious mischievous form of colonial ruling class, financial negligence. One in which, the English and Dutch chose to withdraw from - at the last minute, without notice? Therefore, amounting to a form of top down coercion and social control, in a circumstance of unequal relations and undue influence. Resulting in a "forever Union" settlement and the imposition of English Constitutional law doctrine of "Parliamentary Sovereignty". I. E. Where in - No Parliament can bind it's successors. Thereby, confining and restricting Scottish constitutional change to via political change only. Thereby, rendering all Scottish democratic constitutional law changes, in relation to the Union settlement, incapable of being justiciable, by the Judiciary? Ultimately, always ruled "Ultra Vires" and subject to a - now post Scottish devolution - HMG Executive "High Policy" exclusion / reserved legislative competence. In essence, Scottish constitutional law change, is restricted and confined to a political process only. I. E. Notwithstanding, a Scottish Declaration of Independence, with a range of potential very negative initial adjusting consequences for the Scots going forward.

The international law / UN consent options is incredibly convoluted. On close examination, producing an HMG countervailing approach. In essence, it all appears to be amounting to an HMG "self made dictomy", aimed at circumventing and undermining any Scottish constitutional law consent processes. I. E. Aimed at preventing a non colonial: and or an oppressive independence declaration option, seeking democratic change, underpinned by legal compliance and international enforcement. This is as distinct from that of a Declaration of independence. For example, any attempt to even suggests Scottish independence, is Ultra Vires - beyond the powers of the Scottish Governments legislative competence. As is the draft Scottish written constitution? This is despite a Scottish democratic mandate. The "doctrine of mandate" - is deemed by the British Courts, as also non justicable - it is ultimately political. This includes the "rules of natural justice". Section s30 of the Scotland 1998 as to HMG consent, for a Scottish Independence referendum. Deemed as a Executive "high policy" reserved area of legislative competence.

The interpretation Act, is of no assistance because the directive words - "may" - renders the Prime Ministers - section 30 consent decision discretionary? Moreover, in any event open and politically subrogated to the English law Constitutional law doctrine of "Parliamentary Supremacy ." The prospects of a Canadian Clarity Act, may be politically difficult? Without question on the face of it potentially arbitrary without appropriate safeguards? Almost totalitarian in its outworkings, with an unequivocal predominant ulterior political and security agenda, aimed at preventing and circumventing a Scottish Independence consent option. Defending democracy and facilitating a puralist society, is questionable? Certainly debatable, as to protecting the Anglo-Saxon wealth based ruling classes, via the perpetuity instrument and mechanisms of Parliamentary Supremacy, albeit at variance, with a constitutional and international law Sovereignty - upwards and flowing from the people. I. E. via an entrenched written constitution capable of democratic change and amendments?

Clearly, the forever Union and Settlement, would post democratic constitutional and international law concepts, be potentially unlawful, in parts or in its totality? Current public international law would have serious good faith concerns, current standards of fairness, equality and human rights concerns? In particular, effectively closing the door to the Scots to a lawful remedy and freedom of expression. (Potentially in violation of ECHR 1950, Articles 10, 13 and 14? ) in the context of oppression? I. E. Relative to current domestic and international laws and standards of fairness? Presumably, an issue for the international law Convention on treaties or undemocratic agreements /Settlements Conventions? After all the The Scottish and English Acts of Union 1707 were two separate Acts ratified both in Scotland ( Scots Classical law) and England ( Common law ). An international law treaty in the first instance. Negotiated by appointed Commissioners. This Act of Union was not discussed or debated by either of the Parliaments? These Scottish and English Parliaments were dissolved. However, the respective Acts were retained, as was Scots law. In the 25 Articles the agreement was at all times - referred to as a "treaty" and Articles not sections. I. E. not as in an Act? When the deliberation processes were agreed. This was an agreed international law treaty and completed and not capable of alteration, as distinct from an act of Parliament. The subsequent ratified acts of Parliaments and establishment of the Union of Great Britain Parliament, at Westminster, does not alter the international law nature of the agreement / Treaty: and or the retention of a separate Scots law, culture and national identity. Therefore, potentially justiciable under international law. I. E. In the context of a democratic nation state self determination. For the purposes of consent to independence.

On the signing of the Anglo-Irish accord 1985 an Taoiseach Dr. Gareth Fitzgerald said we come to the table with two different sets of title documents. ( English Conquest, trespass, colonial occupation, and oppression. Irish - Sovereignty upward and flowing from a homeland nation state.)

Likewise, for example, the Magna Charta 1215 was both an English legal peace treaty as between the Monarchy and the barons: and a constitutional law document, which has been cited in Courts in the UK / USA and the former colonies and the now Commonwealth of nations. Moreover, it was and is therefore justiciable, where applicable? Today, a great deal of the Magna Charta 1215 would no longer be suitable and capable of lawful compliance. Likewise, the Act of Union and Settlement between England and Scotland 1701, is still legal tender and Scots law was and is retained, going forward. It is therefore, more than an historic Union Settlement? If so, in all probability the concept of "proportionality", enabling a fair criterion for change capable of legal adjudications. Always provided the Union settlement was eligible and capable of this type of international law intervention?

It may therefore, be necessary to be definitive as to the the dual Acts of Scottish and English Union and Settlement. Is and was this historic Union and settlement legislation a constitutional law union with political ramifications or a peace treaty? I. E. Given these historic acts have both current law and ottoise components. Therefore, possessing a current law currency and potentially of being justiciable? Presumably, thereby, potentially opening the door to Scottish Independence on the basis of a form of colonialism: and or consent oppression? In particular, HMG Bad Faith in relation, to granting consent to an independence referendum in 2014, in the light of an intended change in political direction and EU membership? Nor were there any retained EU powers to the Scottish Parliament? Nor was there any NI Westminster framework type trading and travel concessions to Scotland? Moreover, the false promises of Scottish DEVO-MAX. Together with the non recognition of any Scottish Statutory Bill of Rights and Freedoms and or a Scottish Draft Written Constitution: and or Scottish Parliament majority mandate an independence Referendum. All deemed Ultra Vires, Executive High Policy without legislative competence. Ultimately, Subject to British Parliamentary Supremacy. Therefore, not domestically justiciable. A clear conflict of laws Scots and British law: and or as between British / UK law and International law?

Always provided the Union treaty is eligible and capable of this type of international law intervention? It may therefore, be necessary to be definitive as to the the dual Acts of Scottish and English Union and Settlement. Is and was this historic Union legislative constitutional law union with political ramifications or a peace treaty? I. E. Given these historic acts have both current law and ottoise components. Therefore, possessing a current law currency: and or may or may not be potentially justiciable? Albeit, maybe not in a British Court? Identifying the appropriate international forum with jurisdiction may be problematic at a number of levels? Presumably, turning on definitive self deter concepts, retroactive issues, and conflict of laws and concepts. Thereby, potentially opening or closing the door to Scottish Independence on the basis of a form of colonialism: and or consent oppression?

It may however be noteworthy that these HMG potential international law, bad faith decisions and actions may have in any event, unwittingly created a precedent. I. E. Consent once afforded to a Scottish Independence referendum. Thereby, ending the forever union - whatever else about HMG British Parliamentary Supremacy?

Generations of Scottish national sports teams - "Scott's mist" - now team Scotland? No need to lift the vail of incorporation but for the fact there was no actual incorporation process?

A work in progress - maybe? Scottish Parliament democratic mandate. Progression to Scottish DEVO-MAX and full fiscal autonomy and immigration control powers. A Scottish Parliament - Statutory Bill of Rights and Freedoms. Also Incorporating, existing Scots constitutional laws and institutions supporting democracy. Containing civil, cultural, environmental, social economic imperative qualified rights. A supremacy clause, as to changes and amendments to the Scottish Bill of Rights and Freedoms.

A HMG' consent - held in abeyance consent right Article clause, affording the Scottish Parliament, (subject to satisfy a specified escrow criterion) enabling and facilitating a Scottish Independence referendum.

HMG non compliance amounting to self determination International law oppression.