The Claim of Right

Introduction

For decades, professional and amateur historians have described Scotland’s political and legal character before the Treaty of Union as backward, feudal and divided. We were a nation, it seems, dominated by English-style nobles where the rights of the ‘small folk’, the ordinary man and woman, were virtually non-existent.

To this day, you will find Scots who will tell you the same story and insist that this is historical fact. They are wrong.

In reality, even if it was a far cry from a modern, universal franchise, Scotland has a proud history of popular democracy, of human rights, of a code of justice and of a principle of equality that puts anything in Magna Carta or the English Bill of Rights into the shade. So far into the shade, that it makes the English boast, that their own nation trail-blazed democracy across the world, look foolish and hollow compared with the record of its northern neighbour. (Which may just be why our own was so meanly and dishonestly represented for so long.)

Scotland was a nation that held power to account, that saw to the needs of the poor and the rights – not just of nobles – but 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, (something that didn’t reach England until centuries later it was in place across Scotland). Of the right not only to justice for all but of the kind of justice that applied to king or a candlemaker alike. Something that has never existed in England.

Not only should we all know the true history of Scottish constitutional development – and be proud of it – but this history contains something vitally important, a Scottish birth right. It is our own constitution, born of a thousand year old history which tells the story of who we are and uncovers the stolen rights that we were guaranteed as a people.

Scotland’s Missing Constitution

The UK constitution up to 1707 is just England’s constitution. One reason for this is the widespread myth that our democratically primitive, wee nation of Scotland never had any real constitution worth bothering with. But that is a pure fiction. We have the records to prove it. And when our own political and constitutional history is treated in exactly the same way as the English record, we find a clear and unique set of Scottish principles.

Those principles were protected as a condition of the Treaty of Union and the Union itself. They are contained in the Claim of Right Act, 1689 and 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. And that constitution is completely different from – and incompatible with England’s.
• It matters because it tells us why we hold certain values so dear and why we feel injustice and inequality the way we do and where that comes from and … It matters because it helps us to remember and to know again who we are.
• 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 gives the power to ‘sack’ an oppressive and corrupt government, not to politicians or law courts but to the people of Scotland. It gives them the right to convene a tribunal, (known as the Convention of the Estates), to remove an oppressive government and to replace it with one that will serve the interests of the people and which will be directly answerable to the people
• It matters because it empowers this tribunal to act as a parliament, to reinstate civil rights and freedoms, to act as an ‘ombudsman’ over any elected government and to ensure that the principles of the Scottish Constitution are upheld. These are : 1. the primacy of the Common Good including the right to justice and equality of justice as well as the obligation of government to put the rights and welfare of the people above everything else) and 2. the sovereignty of the Scottish people over all other authorities. It empowers the people of Scotland to save themselves from the injustice, hunger, inequality, austerity and desperation being visited on them by the powerful, the wealthy, the privileged and the greedy.

In other words, it matters to our knowing of who we are and where we come from; it matters to our understanding of how we got to where are today; it matters to our understanding of what we are really capable of and entitled to do about it. And 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

1. Sovereignty Remains With the People

Power in Scotland is vested in the people and loaned to the monarch and parliament for the good of the realm. A bit like a bank loan, this power loan has always carried certain conditions: no government may infringe the rights and liberties of the people, or violate the laws that protect them, on penalty of removal. 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. It 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 an entirely different (yet historically rooted), 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.

2. A National Assembly

The compact was embodied in two separate assemblies. One, known from the 16th century on as the Convention of the Estates, (Assembly of the Communities), represented the lenders, the nation or people.

A body representing the ‘community of the realm’ can be traced from the time of the Guardians of the Realm in 1286, through the period of the General Council, (from the late 1300’s), to the Convention of the Estates. The Convention could not govern except in the absence of a legitimate monarch (and, therefore, of the parliament). It could be – and often was – called by the monarch, (especially when funds ran low), but it was not the instrument of ‘the crown’. It was the broker between people and government, agreeing taxes, drafting legislation and defending the wishes and interests of the people. When necessary, it could recall the loan, (sack the government), for breach of contract, which it did in 1689 by deposing the monarch and, therefore, his government.

This Convention has no parallel in the English system, where popular sovereignty is an alien concept and where an absolute parliament in place of an absolute monarch looks like a paragon of democracy. 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 it being created in the way that the original Convention was created, from a ‘jury’ of local political and national civic leaders, and from representatives voted onto it by local ‘assemblies’ (Scotland once had many burgh assemblies). Imagine being able to demand and get information, and evidence through these assemblies, on every issue that will affect people in Scotland from education to media control, from energy price fixing to ‘preferential’ tax rates, from land reform to housing, from fishing policy to environmental protection and the poisoning of the land. Imagine the evidence being heard in public and best policy and even legislation put forward for the parliament to adopt?

Imagine justice, transparency and accountability and country run with the direct input of the people, for the good of all.

3. A Parliament Accountable to the People

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

Like the parliaments of other European nations, it was summoned by the monarch and was considered a permanent body, however often it sat. It contained a number of elected members from the shires and burghs as well as nobles and prelates. Its role was to enact the decisions of the monarch, though it not infrequently provided important checks and balances to the royal prerogative. And it had no pretensions to the absolute sovereignty claimed by the English Parliament from 1689 on, quite the reverse.

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 a parliament whose members were held to their promises, required to be truthful, honest and transparent on pain of sanction or removal.

Imagine power that was limited and directly accountable to the people

4. 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. 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 effect have been overtaken by time and social change. The legal grounds on which the Act was passed, the limitation of governmental power and the right of the nation to enforce those limits, (popular sovereignty), are still in force. Specifically, the Claim asserts:

I. A “fundamental constitution” by which 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

And this constitution is still the Scottish constitution and still in force, in principle though 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, specially 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, not even the Law Courts. It certainly did not answer to the people. 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. The Scottish ‘Act for securing of the Protestant Religion and Presbyterian Church Government’, which named the Claim of Right, was made a condition of both the Treaty and the Union and had to be ratified, along with the articles of the Treaty by the parliaments of Scotland and England. That should have ensured that Scotland kept its traditional, constitutional principles and practices.

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.

5. What It Will Take

The biggest obstacle to reclaiming our constitution and all that it can make possible has been its disappearance from public view or knowledge.

The first step to getting it back is joining Salvo and getting 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. Because the newspapers will not help us. The TV stations and radio stations will not help us. And 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.

We will have to gather our own learned experts and wise pronouncers! But at the same time stay focussed on what simple common sense, justice, fact and contract law the world over will tell anyone who has a brain!

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, which Act says that (Claim of Right 1689) and what other rights and safeguards that Act provides for the people of Scotland.

And because the power is and always was, ours and not a government or a monarch’s, once united in our demand for what is already ours, we cannot be stopped.