Saturday, 30 November 2013

A LOOK AT THE 1603 AND 1707 TREATIES

Reading around the Facebook pages this morning, I noticed this post on "EU Citizens for an independent Scotland".


In what seems like, I have to admit, another rather lazy post for me, I wondered if anyone had any opinions on this aspect of the law (particularly given Mr Carmichael's recent references to international law) which I had not considered before.

Our First Minister and Spain's Prime Minister are both correct in their interpretations of EU Law.

Spain cites a part of the EU Treaty relating to a "region" of a country. The First Minister is correct to point out Scotland is a country and not a "region" therefore the part of the Treaty cited by Spain does not apply to Scotland.

The Treaty of the Union 1707 is an International Treaty. The Scots negotiating the 1707 Treaty cannily insisted on it being an International Treaty.

The legal ramifications of a Yes vote are far more integrate than the current assumptions. First, the Union of the Crowns 1603 will still be in place and it is this Union which gave rise to the establishment of the United Kingdom.

Therefore the title United Kingdom will have to be removed from the Union of England, Wales and Northern Ireland.

Secondly, the 1707 Treaty established the new nation state of Great Britain; with a Yes vote Great Britain ceases to exist. Given that the United Kingdom between Scotland and England will still exist it could be seriously argued that two new nation states would exist upon a Yes vote: Scotland and the Union of England, Wales and Northern Ireland.


This is not the simple issue the Unionists' make it out to be; this is not my opinion but the law of the land.

Jim Dear
Arbroath

44 comments:

  1. Something that has puzzled me, is how we managed to have a new parliament without re-negotiating the treaty of union. The treaty dissolved the parliaments of Scotland and England.
    Was this the reason it was originally called the Scottish Executive?

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    1. I'm not sure how they did that, but I would hazard a guess that, the new parliament was called a parliament (rather than an assembly) because it could actually make laws (as opposed to the assemblies in Cardiff, London and Belfast which simply decided how to spend Westminster’s bounty).

      But it could only make laws on the matters not reserved to London, and these were the matters that had been retained as separate by the 1707 treaty.

      When you think about it these were… law (which the powerful and educated judges would not have wanted changed to English law as that would have meant a lot of work relearning for them); education (which the powerful universities would not have wanted changed as they believed Scots education superior) and religion (which would have been hard for the ministers of the kirk …also powerful and educated… to stomach). These matters were already dealt with by the Scottish Office in London’s parliament.

      I’m not sure about health as there would have been no health provision in 1707, so why that was delegated to the Scottish office and thence to the Scottish parliament, without contravening the 1707 act, defeats me. I suspect something to do with the unwritten and therefore very flexible “constitution” which says whatever the government of the day wants it to say.

      Remembering that Blair did his best to fix all these things, and called the parliament a “parish council”, it is possible that he wanted to show London’s superiority over Edinburgh by calling the government an “executive”, but in fairness it might have been to remove confusion.

      Now, when “the government” is mentioned, I never know which one it is, ours or theirs!

      Or perhaps better expressed as the one we voted for, or the one that we had forced upon us.

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    2. tris

      Or like having the snp diktat forced on the peoples scotland
      whom the numerical majority of scots did not vote for...

      Your ideas of democracy tis passing strange , or do you subscribe to the democracy which gives the rulers you want
      regardless of casting your vote and having taken part.

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    3. No democratic system is perfect Niko, but I think you would have to agree that the system that Labour put in place for the Scottish parliament is better than most.

      It allows for constituency MPs (as the present British system does) which is supposedly an advantage as the members can be held to account by their constituency, at least in theory. (In practice this rarely happens, although I see that Yeo has just been sacked for being a lazy bastard)

      It also allows for a top up of smaller parties who may get many votes but not enough to undermine the two-party system (in England Tory and Labour; in Scotland SNP/Labour).

      So I’ve always thought it wasn’t a bad system, remembering that none is perfect.

      You’ll remember that Labour put the system in, and that Jack McConnell stated that it was designed to prevent the SNP getting a majority.

      Under the FPTP system, the SNP would have won all but 20 seats of the 73 in the country.

      This system has been enough to elect government to the Uk that took us to war illegally and meant the death of hundreds of thousands of innocent people. It surely couldn’t be wrong for a wee pretend parliament.

      But to make it more fair (thanks to Labour and their set up of Scottish parliament) there were also regional seats designed to make up the wasted votes of FPTP.

      Theoretically this is the opportunity for the minor parties to make up their seats to show a representation. The SNP got 16 of the 53 seats. That was including the weighting against the largest party in FPTP under the system brought in, as I said by Labour.

      It is true that the % of the vote was less than half.

      SNP got 45.39% of the FPTP votes, against the Labour share of 31.69%
      Tories got 13.91% and Liberals 7.1%. You could have gone into a coalition with the Tories and Liberals to keep the SNP out.

      In the regional vote SNP = 44%; Labour 26%, Tories 12% and he Liberals 5%. The Greens got 3%. I guess you could have gone into a coalition with all of them to keep the SNP out.

      I suspect that would have been fragile, as you will note that Labour has said it isn’t happy being with BT even though Darling and MacDougal are Labour men.

      I can see that the SNP did not have a majority of votes (although when you add in the Greens and the Scottish Socialists and Independents, independence probably did).

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    4. In 2011 the SNP got around 45% of the vote and a small majority in the Scottish Parliament. In the 2010 UK election, the Tories got only 36%, although the LibDems got about 23%, bringing the coalition to around 59% - but I suspect not many of those who voted LibDem expected or wanted a coalition with the Tories. Before that, you have to go back to 1970 and Ted Heath to find a UK government which got more than 45%. Even in 1997, when Labour won a massive parliamentary majority, with nearly twice as many seats as Labour and the LibDems combined, they did so with 43% of the total vote.

      Not only is the electoral system for the Scottish Parliament much more democratic than the crude first past the post Westminster system, but the Scottish Parliament does not have an unelected second chamber.

      Scaraben

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    5. I understand what you are saying tris, but we now have a parliament that has made new laws.
      How is that possible under the original treaty?

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    6. Heaven knows Jutie.

      The devolved areas are those which (I think) were already dealt with by the Scottish Office as was.

      Parliament in London passed laws for England and then the Scottish office adapted them to suit Scots law, although I think they tried to bring the two laws closer together...

      But they used to break these rules form time to time. We were always supposed to have the same taxation, but Thatcher trialled Poll tax in Scotland contrary to the 1707 laws.

      Like everything else they do, they change the law according to their whims or how much money they can make out of it.

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    7. The Treaties have been broken, almost from day one of the Union. It was only ever intended as a simple legalese way of buying off the fears of the powerful Scottish vested interests, just as Tris says. Once purchased, there was no higher power to appeal to over treaty breaches.

      It was only a matter of years (five I think) before Scots MPs, feeling hamstrung by the inevitable parliamentary numbers imbalance and obvious treaty violations, were agitating for Independence again. They soon discovered however, the true 'practical' nature of the trap they had sold themselves into.

      If it was not for simple political reasons and the ingenious 'democratic' trick of the 18th Century UK concoction, Scotland could have sued for contract breach as well as contractual bribery and corruption, under the Vienna Convention of which the UK is a signatory.

      http://newsnetscotland.com/index.php/scottish-opinion/2854-is-the-treaty-of-union-already-dead

      The last obvious treaty violation was Blair's 'Supreme Court' and the reason the Edinburgh agreement was reached quite so amicably.

      This is, and always has been a political issue. Scotland now, for the first time since the acts of Union, has somehow managed to collect together the democratic national structures necessary to convey, unequivocally, the democratic will of the Scottish Nation.

      And on the 18th of September 2014, we will.

      braco

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    8. Interesting braco. More stuff i didn't know. :)

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  2. tris

    the referendum is advisory only and has no practical or legal significance
    than an opinion poll, All constitutional matters are reserved to Westminster and as such they may, probably will find various reasons to overturn or ignore any yes vote.
    And until Westminster alone decides to change the constitutional frame work of Great Britain all that post is complete tosh.

    I find it risible that a nat after 300 plus years of slagging off the framers(Traitors) of the 1707 treaty now calls them canny.

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    1. Niko

      Have you heard of the Edinburgh agreement? The one that gave the Scottish parliament the right to hold a legally binding referendum vaia section 30 order?

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    2. Where there is a sovereign government as there is in London, any referendum is advisory, unless its terms pre-commit the government to its implementation.

      But, do you think that it would be a good idea then, for a Tory government in London to overturn the results of a referendum, and do you think that it would be a good move for Labour to support them in this.

      I mean their moves to support them on Welfare reform, have hardly gone down well!

      The people who signed the acts of union were Lords and Lairds.

      They did it for money and lands in England, and for their debts to be paid off by the English.

      They were thieves and wide boys who cared only for their own wealth, like the typical aristocrats and gentry of today (with a few exceptions).

      Even James VI was motivated by greed 100 years earlier. He could have turned down the throne, but there were pots of dosh in it from all the exploitation the English had been up to.

      So yes, I despise them.

      The ordinary people rioted in the streets... that's folks like you and me Niko.

      But, the Lords and gentry didn't give a toss about the poor, any more than Iain Duncan Smith sits there at his £37 breakfast counting the bodies that have died because of his stupidity and incompetence.

      However, the lawyers and the judges and the university professors and the ministers, they demanded certain things, and because they were educated and powerful, got them.

      I think they were clever. Of course they too did it for their own selfish ends.

      They had then, as now, nice cushy little billets. Why would a judge want to learn English law, when all his life he'd practised Scots law? Extra work!

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    3. Did he promise that he would accept the results as legally binding, PP?

      I iodn't know that.

      UI hope Eck got it in writing because Cameron is a bigger liar than... well... almost anyone except IDS.

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  3. Serious question niko, and i'm trying to be sympathetic here.
    Do you suffer from anything that might cause your manic stupidity?

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    1. Obstinacy.

      He's winding us up.

      Niko's actually clever.

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    2. "Some people can be to clever for their own good" was something that was often said in times gone by, by whom I have no idea.

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    3. It was probably Mr Carmichael's Teddy.

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  4. "not my opinion but the law of the land."

    I dare say it is but the big country seems to be under the impression that being the big country means the law of the land doesn't apply to them.



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    1. Well PP, as the Secretary of State for Teddy Bears and the Union pointed out...we may have to invoke INTERNATIONAL LAW.

      :)

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    2. That will be that 'public international law?'
      What a numpty!

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    3. Oooops, yeah, that's what I meant...

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  5. The question of a name for the rUK is a tricky one. According to the fount of all knowledge, Wikipedia, the state formed by the 1707 Union was formally known as Great Britain or the Kingdom of Great Britain, while the term United Kingdom was used unofficially. It was actually the 1803 Union with Ireland that created the title United Kingdom of Great Britain and Ireland. It could therefore be argued that if the United Kingdom part of the name could survive the departure of the Irish Free State, then it can survive Scottish independence.

    Personally, I do not care if the rUK continue to call themselves the United Kingdom of Something following Scottish independence, as long as the Something does not include Great Britain, which is a geographical term which will continue to include Scotland. They could just replace 'Great Britain' in the present name with 'England, Wales' - clumsy, but the same number of words.

    I do not think that retaining the monarchy will mean that an independent Scotland would remain part of a united kingdom; from 1603 to 1707, there were two separate countries, the Kingdom of Scotland and the Kingdom of England (which legally at that time included Wales) which just happened to have the same monarch, and I expect that will be the case again, once Scotland leaves the Union.

    Scaraben

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    1. I'm inclined to agree that it can call itself what it wants.

      Someone reported the other day that there is no intention to change the flag.

      As it has never been representative of the 4 entities in the Uk, I don't see any reason why they should.

      They have to remember to include NO in their name though otherwise Mrs Robinson will get cross.

      NI seems to be a totally separate country in so many ways. I read the other day that that evil old liar IDS' reforms do not apply there... I'm not sure if that is correct.

      But much of its admin seems to be joined to that of the Republic.

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  6. There will be a group of civil servants beavering away in some dusty dungeon on what they will call the rUK after a Yes vote such as Previous UK er.

    I see that Witterings of a Weegiewarbler has an interesting blog post on how GERS underplays our real economic strength.

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  7. I think something else after reading this article.

    'Lifted from the internet' - The poisoning of the independence debate

    Better together poppycock, with friends like these who needs enemies.

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  8. tris


    Moi ! a wind up merchant heaven forfend .
    anyways now Deano has crossed his rubicorn
    and declared for Independence.
    There is only moi ( you see what i did there bit of froggy speak good eh? )
    to rebut the snp glee club, i mean your blog would be just
    a great big agreefest and who wants that.

    Only thing wid Deano his politics is as confusing
    as his sexuality. he wakes up Tory by dinner time
    he is labour and at tea time its the snp .

    so dont bank his vote just yet

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    1. Nobody's counting on anything Niko especially The No lot.

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    2. CH

      When this is done and you lose as you will I am gonna eat your liver with some fava beans and a nice chianti.......goody goody

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    3. The poverty of the Better Together campaign

      There are many reasons why Better Together would never dare to produce its own white paper entitled "Britain's Future". For how could any Scottish Labour supporter subscribe to a document that would talk of penalising the poor; cutting the taxes of the rich; allowing our defence and intelligence policies to resemble those of Texas and re-introducing a light touch for bankers? Not to mention leaving Europe and telling immigrants to go home.

      I have trust in my fellow Scots seeing through the blatant lies that you stand for Niko as they aren't as selfish as you and your ilk.

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    4. Niko.

      I wouldn't have you any other way that the cantankerous old nay sayer that you are...

      Until about a week from the referendum, when I want you to undergo a Damascene conversion.

      It's OK. Taz and I have discussed it and he says he'll make sure that you voet the right way, or he'll have your leg off.

      Fava beans? What?

      My you can tell someone comes from the capital.

      Morningside is it, Niko?

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    5. Good piece from the Guardian, although I cannot, with the best will in the world, see Ms Lamont as an increasingly impressive performer.

      It would be interesting to see what a Better Together white paper would look like... a lot of white paper maybe?

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    6. Niko will be bored out of his mind, giving him credit there, when Scotland becomes a fairer society as he will have nothing to moan about except why his socks aren't labeled Lt Rt.

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    7. Don't worry, we'll get them labeled for him, and buy him ones that have the day written on them... :)

      That's the kind of Scotland we'll have... ;¬)

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  9. ch


    Ole Kevin on his fifth epiphany so far so not good

    tris

    i am the balance of the force within the republic but at
    the end will it tilt to the light or dark side ????
    seems to me the one positive action from
    this attempt at sedition, is the debate which is
    now entering into the uk on what kind of nation
    or nations we want to be.

    Look at how cameron is flip flopping on all
    his pledges, and Osborne has accepted the free
    market has failed and needs regulation.The Governor
    of the B of E says the housing market is going out of
    control.

    who knows at the end we may all win !!!

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    1. Aye who knows, Niko?

      It's funny to watch Cameron burling round like a peerie. It can only be hoped that he makes himself nauseous, coz let’s face it he's already doing that to all of us.

      Yes, the brilliant scheme of Gideon to bring the housing bubble back has been pricked by the bloke he brought in from Canada, who is also discussing with Scotland what the Secretary of State said would be against the law... sharing sterling.

      All the green crap is being removed from the greenest government ever (I could certainly agree with that, but of course I mean green as in cabbage looking.

      The Cameron is having talks with his new wee mate in Spain at the same time as he’s trying to find someone to lend him a gun boat so that he can blow said wee mate and his corrupt government out of water for interfering with the last outpost of the great British empire, the planet of the apes.

      Of course you got Boris telling us that if only Mrs Thatcher hadn’t been senile she’d have sent Alex Salmond packing and all these foreigners too.

      Having put the grate back into voices and the great greed back into Britain, she would have had no difficulty in divesting it of the last few friends it had.

      Still she’ll like having an airport named after her… The Boris and Margaret Island International Airport in the middle of the Thames. Brilliant. I hope we’re free before we are asked to pay for that (because it’s in YOUR capital city too, you know).

      Anyway, I’ll be on the phone to Taz later…

      PS Munguin doesn’t mind his paw being held…

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  10. Jim Dear is wrong on the law. A (or "the") United Kingdom wasn't created in 1603. Two separate kingdoms continued to exist, only they now each had the same king. Nothing else changed legally. It was in 1707 that, by treaty, these two kingdoms merged. If they de-merge in 2016, we will be back in the pre-1707 position of having two separate kingdoms which happen to have the same queen.

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    1. Thank you Robert.

      The unions of the crown, then, did nothing political?

      It was just that the king was also king of another country... could have been France or Turkey, but as it happened it was England?

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    2. Prior to the 1707 union Scotland was governed by an independent privy council of Scotland, and our estates parliament.

      We pursued our own legal, political, foreign policies.

      The indyref proposes to simply return to the pre-1707 union, between crowns, shared heads of state.

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    3. Well, we'll be in the position of having at least four seperate countries with the same queen. Canada and Australia still recognise her as well (unless she's still empress there? Or was that India?)

      How many of the rest of the Commonwealth still do? I thought it was all of them.

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  11. Right, I seem to have been somewhat wrong about that...

    Ho Hum.

    Illy, I took this from Wiki...

    The number of states headed by Queen Elizabeth II has varied during her 61 years on the throne, altogether seeing her as head of state of a total of thirty-two independent countries during this period. The 16 that presently have her as sovereign, known as Commonwealth realms, are shown in light green, while the remainder show in dark green the reign of Elizabeth II as their monarch, from their independence until their adoption of a republican form of government.
    In her capacity as Queen of the United Kingdom (including the British overseas territories), she has also been monarch of three Crown Dependencies, Guernsey, Jersey, and Mann, since her accession in 1952. In her capacity as Queen of New Zealand, she has also been monarch of two associated states: the Cook Islands and Niue, since they acquired this status in 1965 and 1974, respectively.
    The government of the unrecognised state of Rhodesia proclaimed its allegiance to Elizabeth II as queen of Rhodesia from 1965 to 1970. However, she did not accept either the role or the title and it was not accepted or recognized by any other state.
    Fiji is a unique case. The country became a republic through a military coup in 1987, after which its Great Council of Chiefs continued to recognise Elizabeth II as queen, or Paramount Chief, until the council's de-establishment on 14 March 2012.[2] However, this was only a ceremonial title, with no role in government at all.[3]

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  12. From the outset the true legal nature of the Union of 1706-07 has not been properly understood, particularly in England, and there have been consequential mistakes in talking and writing about it, evidenced particularly by the way in which Scottish historians normally refer to the Treaty of Union, and English historians, and most politicians and members of the general public, normally speak of the Act or Acts of Union. Even the Royal Mint commemorative £2 coin of 2007 is advertised as marking the “Act” of Union.

    A true treaty
    The proper understanding of the legal nature of the Union is that it was an agreement made in 1706-07, not by the parliaments of Scotland and England, but by commissioners appointed by the heads of the executive of the independent states of Scotland and England (both of which offices were then vested in Queen Anne but acting in different capacities). The agreement was stated in 25 articles, signed and sealed by almost all of each set of commissioners, with a copy being presented by each set to Queen Anne and accepted by her with warm thanks, in both her capacities.

    That it was a treaty in international law is amply evidenced by the terms of preceding legislation (e.g. Treaty with England Act, APS XI, 295, c 50), by the fact that Queen Anne twice visited the negotiations and enquired for progress with “the Treaty” (D Defoe, History of the Union (1709), Part 2, pp 47, 88), the fact that the Articles themselves (e.g. articles XIV, XV, XVIII, XXII) refer repeatedly to “this Treaty”, and that it is so referred to in other related legislation. The word “article” is the proper technical term for a part of a Treaty, whereas “section” is proper for a part of an Act in domestic law. The agreement conformed to all requisites for a treaty in international law (Lord McNair, Law of Treaties (1961), 40; also T B Smith, “The Union of 1707 as Fundamental Law” [1957] Public Law 99, reprinted in his Studies Critical and Comparative, 1; Walker Trs v Lord Advocate 1912 SC (HL) 12). Neither parliament had participated in discussing the terms and conditions of the agreement. It was not given Royal Assent.

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    1. Wow... Brilliant, and learned.

      Thanks so much for the info :)

      Where does that leave revising/repealing/annulling (or whatever) or even altering the 'agreement'?

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