The Scottish Constitutional Claim
The Claim in Context
Among the central principles of the UK constitution, currently in force in Scotland as well as the rest of the UK, there are a number derived from early English constitutional documents and arrangements. There appears to be a widespread assumption that either no such constitutional principles, or no equally relevant principles, exist for Scotland. When we apply the same criteria, however, to the constitutional documents and arrangements of Scotland prior to the Union, (1310 to 1706), as are afforded to their England counterparts for the same which period, we find a core of self-consistent, constitutional principles which collectively reinforce and develop those expressed in the Claim of Right Act of 1689.
The UK constitution, currently in force in Scotland as well as the rest of the UK, acknowledges none of these Scottish principles in practice. Parliament operates, instead, under principles first established for the pre-Union, English Parliament, notably in the Bill of Rights of 1689, which introduced parliamentary privilege and the doctrine of parliamentary sovereignty.
Parliamentary sovereignty has been described as the central characteristic of the UK Parliament and yet it stands in direct opposition to the Scottish constitutional principle of popular sovereignty as articulated in the Claim of Right. How did it come to be universally applied? How did the authority of the Scottish people over their head of state and government come to be replaced by the supreme authority of a government controlled by a foreign power?
The Bill of Rights did not feature in the terms of the Treaty of Union, while the Scottish Claim of Right Act was ratified by the parliaments of both England and Scotland and its continuation in Scotland guaranteed as a condition of the Union. Given these terms of Union, not only is Scotland entitled to the continued provisions and force of the Claim of Right as was guaranteed, but the Claim of Right itself is entitled to parity of standing with the English Bill of Rights within the UK Constitution.
The problem, of course, is how to have a single UK constitution when the core constitutional principles of the signatory nations are irreconcilable. As it was the Claim of Right which was ratified by both parliaments, however, it can be argued that if only one constitution from the two the nation signatories is to be applied in the UK, then the Claim of Right has the superior claim.
What is certain is that the force of the English constitution in Scotland, so far as it violates the guarantees of the Treaty and the provisions of the claim of Right cannot be lawful under either international, Treaty law or domestic, constitutional law.
The restoration of the Scottish constitutional compact which underpins the Claim of Right represents the righting of a serious wrong committed against the people of Scotland, in violation of the clear condition by which the Union was entered into. More importantly, it guarantees not merely a route to independence should the majority in Scotland demand it, but the transfer of the power from the hands of an unaccountable few to the population as a whole. It holds out the promise of a restoration of accountability, justice and reinstalls the good and the welfare of the whole nation as the primary and inalienable obligation of law and government.
