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Two years ago Mike Fenwick and I had a show on Independence live called TwaAuld Heids. One of our more memorable guests was a farmer from Perthshire called Jim Fairlie.
Jim, came out with the (left field at the time ) suggestion that the Scottish parliament, instead of fighting through the Westminster controlled morass of obfuscation and denial, should begin by taking back OUR constitution from Westminster.
Jim is now a Perthshire MSP for the SNP and the inspiration for this idea. SO WHAT IS OUR CONSTITUTION THAT WE NEED TO TAKE BACK?
It is the foundation on which Scotland was built. It begins with the institution of the crown in Scotland – not the monarchy, the crown. The Scottish crown has never joined with the English crown because it is so different that it never could be. Since, the time of Kenneth McAlpine, our crown has meant the whole community of the realm. It is the people of this nation who are its sovereign and our monarchs only represent this sovereignty. This is why our kings or queens were always and only the first among equals. This is where our popular sovereignty originates and still resides. This is why our land was held, not by a feudal monarch but by the whole nation. And because the Scottish crown remains intact – it is still held by us.
The Scottish crown did not belong to Queen Anne, nor the privileges of that crown to the Scottish parliament, and this is how we know that Scotland entered a political and economic union but not a territorial union. How much does it matter? Well, under this fundamental constitution Scotland remains, like the Faroe Isles, a sovereign territorial nation whose natural resources were never included in the Union deal and they remain in truth and in international law, the exclusive property of the nation of Scotland.
It continues in Scots law with the establishment of rights and provisions spanning five hundred years of our history, most now unknown to most Scots even those in the legal profession.
And it was protected in 1689, at the moment when we faced yet another invasion by an English backed ruler, by the one and only written constitution in the history of the UK, the Claim of Right Act. Forget the ugly sectarian effects of the ACT. Just like England’s sacred Bill of Rights, with its parliamentary sovereignty – now imposed on Scotland in violation of the conditions of Union, they were put there to keep William of Orange happy.
And they no longer apply. Look instead at the rights and liberties of the people, a list that is nearly identical to those that form the basis of modern human rights and possibly the first recorded version of these rights. Look to the sovereignty of the people over the monarch, government, parliament and, (when they violated these rights and the laws that protect them) the courts. Look to the kind Scotland we would have, and should have had under the Treaty agreement, had the standing condition of the Claim of Right been honoured by our English overlords as it should have been. And look to the kind of Scotland we can begin to create right now with the laws, liberties and provisions, especially the sovereignty of the people of Scotland over Westminster itself, if we restore the constitutional rights to which we are entitled, beginning with those protected, under pain of high treason in Scots law and under the terms of the Union, by the Claim of Right Act, 1689.
WHAT WOULD BE THE MECHANISM FOR DOING THIS?
For this I have pass credit to blogger Calton Jock who posted an article about the Royal Prerogative which in Scotland is NOT RESERVED TO WESTMINSTER which is important. Any privy councillor can give advice to OR petition the King under the Royal prerogative.
Its English counterpart was most recently used to send Jacob Rees Mogg, in his position as a privy councillor, up to Balmoral , to ask the Queen to prorogue parliament in September 2019. (Unlawfully as it turns out because he was sidestepping Westminster which in the eyes of the Supreme Court was sovereign ). The Royal prerogative in Scotland is not reserved to Westminster so could not be adjudicated by the Supreme Court.
THE KING HAS EITHER MADE A MISTAKE, OR BEEN BADLY ADVISED THAT WHEN HE TOOK HIS OATH IN SCOTLAND TO UPHOLD THE RIGHTS OF THE PROTESTANT RELIGION, THAT THAT WAS ALL THAT WAS REQUIRED FOR HIM TO BECOME KING UNDER THE CLAIM OF RIGHT.
From William of Orange onwards that oath that was required by every monarch to uphold the Claim of Right in Scotland was an oath to uphold the Scottish constitution it set out until it was watered down, likely by advice from privy councillors in the attempt to undermine Scotlands Claim of Right.
It was used to restrain William’s ambitions in Scotland and it was protected by law from subversion, alteration or even criticism under pain of death.
Charles III is required to honour and uphold it as it protects the people of Scotland from the tyranny of an English constitution, or he cannot, legally, become king of Scots.
Scotlands independence movement has 4 privy councillors: Nicola Sturgeon, Stewart Hosie, Ian Blackford and one more who has championed the Golden thread that runs through Scottish history. His name? Alex Salmond.
I PROPOSE THAT WE APPROACH ALEX SALMOND PRIVY COUNCILLOR AND ASK HIM IN HIS CONSTITUTIONAL ROLE TO ADVISE KING CHARLES III THAT THE ‘ SCOTTISH OATH’ HE MADE, the one that is supposed to satisfy the constitutional requirements of his Scottish kingship, PAID only LIP SERVICE TO THE CLAIM OF RIGHT, acknowledging it only as a religious obligation. It failed to ACKNOWLEDGE his real and still standing obligations to Scotland’s FULL constitutional rights.
And therefore, I suggest that our very own Privy Councillor PETITION King Charles to fulfil the requirements of his office and restore to Scotland the constitutional rights and liberties provided by the Claim of Right 1689, agreed as a pre-condition of the Union and as his oath requires that he should do. Or be prepared, by his refusal to uphold the condition of accession to Scotland’s throne, to face a Scottish challenge to his legitimacy as king.
AND I WOULD HOPE THAT JIM FAIRLIE WOULD ALSO SUPPORT THAT.