The Claim of Right
Summaries, Documents and Historical Records
Everything you didn’t know about Scotland’s Constitution and the Claim of Right that protects it still.
By Sara Salyers
The Claim of Right
For centuries, our political and legal character before the Treaty of Union in 1707 has been sneered at. Apparently, we were a nation dominated by English-style nobles where the rights of the ‘small folk’, the ordinary man and woman, were virtually non-existent.
But it’s not true.
Scotland’s history of popular democracy, of human rights, of a code of justice and of a principle of equality puts anything in Magna Carta or the English Bill of Rights into the shade. So far into the shade that it makes English democracy boasts look foolish and hollow compared with the record of its northern neighbour.
Scotland was a nation that held power to account, that saw to the needs of the poor and the rights of everybody. It tells of the right to rebellion against tyranny and of the care of a people for the education of the poorest as well as the richest. Of the right not only to justice for all but of the kind of justice that applied to king or a candlemaker alike.
It’s about time we all knew true history of our constitution. And be proud of it. And once you know about it, to join Salvo to get it back.
Scotland’s Missing Constitution
The UK constitution is just England’s constitution. The forced union of 1707 made sure of that. But the commissioners who negotiated on Scotland’s side were no mugs, and it’s thanks to them that our centuries-old Constitution was protected from an enemy fixed on dominating Scotland.
The principles of our constitutional law were protected as a condition of the Treaty of Union and the Union itself. They are contained in the Claim of Right Act, 1689, which was named in the Preservation of the Presbyterian Faith Act of 1706 to be ratified and guaranteed to remain in force in Scotland after the United Kingdom was created.
Why does a 300-year-old Act and a condition of the Union matter today?
- It matters because the Claim of Right sets out a Scottish constitution
- It matters because it tells us why we hold certain values so dear
- It matters because it provides an ‘opt-out- from the Union if the government (any government), ruling in Scotland violates the principles in the Claim of Right
- It matters because it empowers our Convention of the Estates to reinstate civil rights and freedoms, to act as an ‘ombudsman’ over any elected government; to ensure that the principles of the Scottish Constitution are upheld; and to protect the people from injustice, hunger, inequality, austerity and desperation being visited on them by the powerful, the wealthy, the privileged and the greedy.
It matters, above all, to the kind of world and the kind of nation we have the right and the power to choose and to create for ourselves.
An Ancient and Modern Blueprint
Sovereignty Remains with the People – this is the doctrine of popular sovereignty. It is also the purpose of government to serve the ‘common good’ by upholding the rights and interests of the people. This is the principle of the Primacy of the Common Good. So there is a compact between the lenders, (the people), and the borrowers, (the government).
This is the heart of the Scottish constitution and is as relevant today as it was when the Union ended government from Scotland, for Scotland and by Scotland.
Restored, it holds out the possibility of a political and legal system where the rights and interests of the people and the land replace the greed and self-interest of the privileged few. A Scotland where everyone benefits from the resources of the nation, where no child is hungry, and a food bank anywhere would be seen as a national disgrace.
The compact was embodied in two separate assemblies. One which represented the people called the Convention of the Estates, (Assembly of the Communities), represented the lenders, the nation or people, and the other, the Parliament, or Three Estates, represented the ‘borrowers’ of power, those who made the laws and conducted the business of government on behalf of the nation.
This Convention has no parallel in the English system, where popular sovereignty is an alien concept. But through a Scottish prism, this Assembly represented the ‘lenders’ of power (the people), and their rights and interests. It could ensure that the compact was observed; that the government did not overstep its limits and that there was a means of veto, sanction and redress for the people if it should do so.
Imagine what that convention could do today?
Imagine justice, transparency and accountability and country run with the direct input of the people, for the good of all.
From 1592 to 1707, the Scottish Parliament acknowledged the sovereignty of the people by offering ‘salvo’ at the end of every session: any person who wished to do so was invited to challenge any legislation that prejudiced their civil rights or freedoms. It was made law by the Act salve jure cujuslibet in 1663.
Imagine a parliament today that acknowledged the authority of the people and deferred to the rights and liberties they are guaranteed.
Imagine power that was limited and directly accountable to the people
What Makes It All Possible?
The Claim of Right Act, passed in 1689 to 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. And this constitution is still the Scottish constitution and still in force, in principle if not in fact, today.
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. In the difficult negotiations for this single, unified state 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 was in charge (and still is). But in Scotland the pretension of a government or a parliament to be sovereign over the people was not just an alien idea, it was unlawful. It got James VII deposed!
The incompatibility of the constitutions was never resolved. Instead, the two nations agreed to keep their two constitutions, with a guarantee that in post-Union Scotland the Claim of Right would continue.
The guarantee was that an insertion was made into the Treaty and ratified, along with the articles of the Treaty by the parliaments of Scotland and England.
But somehow, the condition of the Union and the Scottish constitution disappeared over time.
The Union, however, remains based on a contract between two sovereign nations. The terms of that contract and what they mean can be and have been disputed. And the pre-condition of that Union, the get out clause that says the Union is over if this is ignored, is not up to Westminster – or anyone else – to remove. It will be up to us, however, to enforce it.
What It Will Take?
The first step to getting it back is joining Salvo and reading the strange case of the missing constitution to get it out there! It will have to be word of mouth, social media, coffee mornings and events in town halls. It will need every one of us who knows and understands it to spread it as far and as wide as we can. It needs to shouted at AUOB marches.
Because no one’s going to help us. Quite the reverse. The establishment will do everything in its power to prevent the spread of the truth or rubbish the message as wrong, foolish, politically naïve and ‘uneducated’ in legal realities.
We will have to remember that we are up against a powerful, determined and utterly determined British Establishment. And remind ourselves of the way in which that establishment holds up the ‘Bill of Rights’ (England 1689) for public praise and admiration, a Bill which is still in force to day, and yet ridicule the idea that a 300 year old Scottish Act has any modern relevance at all.
They will cite parliamentary sovereignty and they will call in learned historians and legal experts to rubbish the very idea that the Claim of Right was protected as a constitution and not just a bit of religious bigotry. (But don’t mention the anti-Catholic sentiments and actions of the Bill of Rights!)
We will have to resist the implanted and deep-rooted tendency to believe the gaslighting of the great and the learned and the powerful.
But most of all, we will have to gather together. Because the people of Scotland are sovereign, even Westminster acknowledges that (though it does not acknowledge where that sovereignty comes from).
And because the power is and always was, ours and not a government’s or a monarch’s, once united in our demand for what is already ours, we cannot and will not be stopped.
Want to help? Join Salvo now.
The Claim of Right enables us to build not just an independent country but also a better, fairer one,
The Claim of Right, its history, why it matters today, and what you can do to restore our self-government and make a better, fairer Scotland
The Declaration of the Estates of the Kingdom of Scotland containing the Claim of Right and the offer of the Croune to the King and Queen of England (historical document)
A timeline along the path of Scotland’s ancient constitution, from pre-medieval times to the moment when the Union suppressed our national identity and with it our unique constitution.
The forgotten condition of the Treat of Union – what every Scot should know. Plus, Dicey demolished: even if you’ve never heard of him, by the end of this you’ll bilin’ at he – and by extension the UK govt – did to keep our ancient birthright from us – and why.