Thursday 1 December 2011

Independence: Scotland is VERY different from Quebec

Whenever the subject of Scottish independence occurs in any debate the relationship between Scotland and the rest of the United Kingdom is compared to that between Quebec and the rest of Canada. These comparisons are inaccurate as they inevitably depend on assumptions and not facts. So what are the actual facts?

Scotland was an internationally sovereign country prior to 1 May 1707 when it joined with the realm of England, through the Treaty of Union in 1707, to form the United Kingdom of Great Britain. The precursor to that treaty occurred over one hundred years earlier in 1603 in what is erroneously called the Union of the Crowns when James VI of Scotland became James I of England.

'...on 25 March 1603, James VI of Scotland became James I of England. It was a purely personal union. There were still two kingdoms, each with its own parliament, administration, church and legal system.'

SOURCE: 'Scotland: The Shaping of a Nation' by Gordon Donaldson, p.46, ISBN 0 7153 6904 0, Library of Congress Catalog Card Number 74-15792.

Prior to 1763 Quebec was the capital of New France, the territory of which was divided into 5 colonies. The French colony of Canada, in which Quebec was located, was ceded to Britain in 1763 following military conquest. The former French colony was renamed as the Province of Quebec then in 1791 it became Lower Canada. In 1840 Quebec became part of the Province of Canada through an Act of Union then in 1867 as a province of the Canadian Confederation and eventually of present-day Canada.

Union of Parliaments

In any debate about the Treaty of Union in 1707, also known as the Union of Parliaments and which provided for one parliament (Article III), there are certain inconvenient facts which British Unionists prefer to omit -

  • that in the three months that the Articles of Union were being debated by the Scottish Parliament there were riots throughout Scotland,
  • that, during the same period, English troops were moved to the Scotland/ England border,
  • that the majority of the Scottish commissioners appointed to negotiate the Articles of the proposed Treaty of Union were chosen because they were in favour of an incorporating union,
  • that the Equivalent, the financial recompense for Scotland's contribution to payment of the English national debt (Article XV of the Treaty of Union in 1707) was grossly underestimated.

In his book 'The Lion in the North' (on page 238) John Prebble writes -

'Another English spy, less considerate of his masters' feelings, reported that most Scots cursed the nobles who had betrayed them into the Union, and that for every man who supported the Treaty there were fifty against it. 'I never saw a nation so universally wild'.'

Although it was dissolved by proclamation on 22 April 1707 the Scottish Parliament never actually dissolved itself. The last meeting of that Parliament was on 25 March 1707 when it was adjourned. That is why, in her speech to the initial meeting of the devolved Scottish Parliament Dr. Winnie Ewing MSP (Scottish National Party), now retired, was able to say -

'...the Scottish Parliament, which adjourned on 25 March 1707, is hereby reconvened'

SOURCE: Scottish Parliament Official Report, Vol. 1, No. 1, 12 May 1999.

United Kingdom. Secession and Dissolution

The United Kingdom is purported to have first been formed in 1801 through the Treaty of Union which formed the United Kingdom of Great Britain and Ireland. Close examination of the Articles of the Treaty of Union in 1707, however, shows that reference is made a number of times to the United Kingdom even though Article I states -

'...be united into one Kingdom by the name of Great Britain...'

Generally when a new country is formed from a part of an existing country it is usually described as being a secession. In the specific instance of Scottish independence, however, the word secession is both inaccurate and incorrect. For a secession to occur the parent country/state, which with regard to the current constitutional status of Scotland is Great Britain/ United Kingdom, would have to continue, albeit in a modified form - that would not be the case. The country of Great Britain was created by the joining of the realms of Scotland and England through the Treaty of Union in 1707. When Scotland regains its independence that treaty will effectively be DISSOLVED and Great Britain will CEASE to exist. Scottish independence, therefore, would NOT be a case of secession but would, in fact, be one of DISSOLUTION - referring to Scottish independence as secession would not change that fact. That is why Scottish independence would not be secession whereas the independence of Quebec from Canada would be.

'In contrast, Lane says, Scotland cannot break away like Ireland as it was 'one of the basic building blocks of "the United Kingdom of Great Britain"' (Lane 1991: 146). Without Scotland there is no 'Great Britain' and without Great Britain there is no 'United Kingdom'.'

SOURCE: 'SCOTTISH INDEPENDENCE: A Practical Guide' by Jo Eric Murkens with Peter Jones and Michael Keating, p.109, ISBN 0-7486-1699-3.

When Scotland regains its independence the reigning monarch of the United Kingdom will remain Head of State, in accordance with the Union of the Crowns in 1603, until such time as the people of Scotland decide otherwise in a referendum in an independent Scotland.

Sovereignty

The locus of sovereignty in Scotland has been disguised since 1707 and only since the late 1960's has it gradually come out of the shadow that was cast over it. A common misconception has been that sovereignty resided with the UK Parliament (parliamentary sovereignty/ supremacy of parliament). In 1688 the decision was made that in English constitutional law parliament was sovereign. Nowhere in the Treaty of Union in 1707 or at anytime since then has the UK Parliament ever been deemed to be sovereign.

'Yet the Scots made a grave miscalculation. They thought of the treaty as a written constitution, and, even with all the concessions they had obtained they would not have accepted that an omni-competent parliament had power to abrogate provisions which they fondly imagined to be 'fundamental and essential'...But the theories of English constitutional lawyers prevailed and the union has proved to have no more sanctity than any other statute.'

SOURCE: 'Scotland: The Shaping of a Nation' by Gordon Donaldson, p.58.

Sovereignty in Scotland has evolved since the death of Alexander III in 1286.

'Besides, in the years when Scotland was kingless, another concept emerged besides that of the impersonal crown: ultimate power or sovereignty was seen to lie with what was called 'the community of the realm'.'

SOURCE: 'Scotland: The Shaping of a Nation' by Gordon Donaldson, p.64.

The sovereignty of the Scottish people has now developed into a more democratic form and now rests with the registered electorate in Scotland.

'...greater power can only be granted to Scotland by the UK Parliament and here there is potential for conflict. To take the extreme example,constitutional matters are reserved but it is hard to see how the Scottish Parliament could be prevented from holding a referendum on independence should it be determined to do so. If the Scottish people expressed a desire for independence the stage would be set for a direct clash between what is the English doctrine of sovereignty and the Scottish doctrine of the sovereignty of the people.'

SOURCE: 'The Operation of Multi-Layer Democracy', Scottish Affairs Committee Second Report of Session 1997-1998, HC 460-I, 2 December 1998, paragraph 27.

A 1954 legal finding by Lord Cooper in the Scottish Court of Session contained the following -

'The principle of the unlimited sovereignty of Parliament is a distinctly English principle which has no counterpart in Scottish constitutional law.'

- MacCormick v Lord Advocate 1954 (1953 SC 396).

'Yet whatever the protestation of Westminster politicians and the wording of the Scotland Act, almost nobody in Scotland believes that the Parliament is a mere subordinate legislature, a creature of Westminster statute. Its claims to original authority are twofold: its basis in the referendum of 1997 as an act of self-determination; and the residual traditions of Scottish constitutional law and practice which never accorded untrammelled sovereignty to Westminster.'

SOURCE: 'SCOTTISH INDEPENDENCE: A Practical Guide' by Jo Eric Murkens with Peter Jones and Michael Keating, p.296.

Scots Law and legal system

'There are striking similarities between Quebec and Scotland. As Mark D. Walters, Professor of Constitutional Law at Queen's University in Canada, notes, 'efforts by Canadian and British judges to identify constitutional rules and principles of a common law nature are analogous, even though one system has a written constitution and the other does not' (Walters 1999: 383).'

SOURCE: 'SCOTTISH INDEPENDENCE: A Practical Guide' by Jo Eric Murkens with Peter Jones and Michael Keating, p.15.

The following are extracts from the Wikipedia entry for 'Common Law' -

'Scotland is often said to use the civil law system but it has a unique system that combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with an element of common law long predating the Treaty of Union with England in 1707...Scots common law differs in that the use of precedent is subject to the courts' seeking to discover the principle that justifies a law rather than searching for an example as a precedent, and principles of natural justice and fairness have always played a role in Scots Law...Scots common law covers matters including murder and theft, and has sources in custom, in legal writings and previous court decisions.'

The following are extracts from the 'Kilbrandon Report' -

'74. ...By the time of the Union a well-defined and independent system of Scottish law had been established. This was recognised in the Union settlement, which provided for the preservation of the separate code of Scots law and the Scottish judiciary and legal system. Under Article XIX the two highest Scottish courts - the Court of Session and the High Court of Justiciary - were to continue, and were not to be subject to the jurisdiction of the English courts. These bodies have remained respectively the supreme civil and criminal courts in Scotland, while beneath them there is a completely separate Scottish system of jurisdiction and law courts, with a justiciary, advocates and solicitors, none of whom are interchangeable with their English counterparts...

76. ...Nevertheless the two systems remain separate, and - a unique constitutional phenomenon within a unitary state - stand to this day in the same juridical relationship to one another as they do individually to the system of any foreign country.'

SOURCE: 'Royal Commission on the Constitution, 1969 - 1973', Volume I, Cmnd. 5460.

Wednesday 13 July 2011

United Kingdom: Scotland is NOT part of England



Recently I came across a blog post Scotland May Split with the United Kingdom on the blog Enduring Sense. This short post about the results of the Scottish Parliament elections in May contained the following sentence -

'This Party ran on a platform that included calling a referendum to determine if Scotland will remain part of England or become an independent country.'

I submitted a comment and received a reply from the author in which he wrote -

'Thanks for your clarification on the status of England and Scotland.'

The following is the comment which I submitted -

'...to determine if Scotland will remain a part of England...'

That is factually incorrect. Scotland is NOT part of England and NEVER has been. This post shows that there is a clear misunderstanding about what the United Kingdom actually is. The following is a brief history of it from the so-called Union of the Crowns in 1603.

'on 25 March 1603, James VI of Scotland became James I of England. It was a purely personal union. There were still two kingdoms, each with its own parliament, administration, church and legal system.'

SOURCE: 'Scotland: The Shaping of a Nation' by Gordon Donaldson, p.46, ISBN 0 7153 6904 0, Library of Congress Catalog Card Number 74-15792.

It was James who first used the term 'Great Britain' to describe his combined kingdoms of Scotland and England. By this time Wales was already part of the kingdom of England, initially through the Statute of Rhuddlan in 1284 then more formally by a statute of the parliament of England in 1536. What unites the 'United Kingdom' is the fact that the same person is the monarch of three kingdoms - Scotland, England and Ireland. In relation to Scotland the term 'United Kingdom' first occurred in the Treaty of Union in 1707 which established, as from 1 May 1707, the 'United Kingdom of Great Britain' (Article I). In 1801 it was expanded to include Ireland in the 'United Kingdom of Great Britain and Ireland'. Following the creation of the Irish Free State in 1922 it became the 'United Kingdom of Great Britain and Northern Ireland' in 1927. As well as being a descriptive term of the territory of which it is comprised, 'United Kingdom' is also an abbreviation of the formal name. When Scotland regains its independence the 'United Kingdom' will continue, as it did between 1603 and 1707, until the people of Scotland decide otherwise in a referendum in an independent Scotland.

Scottish independence is often referred to as being a case of secession. It is, in fact, incorrect to use the words 'secede' or 'secession' with regard to Scottish independence. For a secession to occur the parent country, which with regard to the current constitutional status of Scotland is Great Britain, would have to continue, albeit in a modified form - that would not be the case. The country of Great Britain was created by the joining of the kingdoms of Scotland and England through the Treaty of Union in 1707. When Scotland regains its independence that treaty will effectively be DISSOLVED and Great Britain will CEASE to exist.

'In contrast, Lane says, Scotland cannot break away like Ireland as it was 'one of the basic building blocks of "the United Kingdom of Great Britain"' (Lane 1991: 146). Without Scotland there is no 'Great Britain' and without Great Britain there is no 'United Kingdom'.'

SOURCE: 'SCOTTISH INDEPENDENCE: A Practical Guide' by Jo Eric Murkens with Peter Jones and Michael Keating, p.109, ISBN 0-7486-1699-3.

I would appreciate it if you would submit a post which clarifies the actual status of Scotland in relation to other parts of the 'United Kingdom of Great Britain and Northern Ireland' for the benefit of your readers.

Friday 4 March 2011

Hypocrisy, Manipulation and Misrepresentation of Facts



Citing from an article, book or letter as part of a blogpost, comment, letter or another article is a standard practice. However, it is sometimes the case that such a citation is done as a method of manipulating or misrepresenting information in order to support a different interpretation than was intended by the original author.

A blogpost to which I recently submitted a comment is an example of this. The following is the post
If Kadhafi goes, can al-Megrahi be far behind? on the Free Frank Warner blog and all the subsequent comments to it -

February 22, 2011

If Kadhafi goes, can al-Megrahi be far behind?

Wouldn't it be lovely if, in the Libyan revolt against Moammar Kadhafi, Lockerbie bomber Abdelbaset Ali Mohmed al-Megrahi were captured and returned to Scotland?

Yes, Scotland. I would enjoy watching the power-drunk government of Scotland take back the murderer of 270 people and try to free him again. It would be satisfaction enough to hear them explain again how they released him in 2009 because he had just 3 months to live.

Frank Warner

***


See also: Kadhafi and the magic umbrella. Or as the kids say: "See ya! Wouldn't wanna be ya!"


Comments


'the power-drunk government of Scotland'

'because he had just 3 months to live'

Those remarks, Mr Warner, clearly show that you just don't have a clue about what you are commenting on. No specific time-scale was ever given in which the death of al-Megrahi would have happened. The three month period was an estimate NOT a definitive statement as to life expectancy.

I challenge you to conduct your own investigation of ALL the actual facts. Here are some suggested links -

"Just remember, especially in politics, that people who make statements as fact without knowing what they are talking about are just opening their mouth and letting their belly rumble."

Posted by: Michael Follon ‌ February 22, 2011 at 03:53 PM

Here's a fact: that is far too many links to read on a topic that is ridiculous anyway.

Posted by: CJW ‌ February 23, 2011 at 12:24 AM

Ha!

So let's try to figure out the REAL REASON the power-drunk government of Scotland released al-Megrahi. Was it his reward for killing 270 people, including 11 Scots?

Here is the Aug. 20, 2009, explanation from The [London] Guardian:

"Why is Abdelbaset al-Megrahi being released now?

"The official answer is that his health has deteriorated to such an extent that he is not expected to live much longer, so he has been granted release on compassionate grounds - the Scottish government having rejected a prisoner transfer to Libya that would have kept him in jail there.

"Megrahi's decision to drop his appeal against conviction - which his supporters had previously indicated his family could pursue even after his death - fuelled speculation of a deal having been struck."

Posted by: Frank Warner ‌ February 23, 2011 at 07:16 PM

It is interesting that you should quote an article from 'The Guardian'. Like so many of the 'UK' newspapers it also produces a 'Scottish Edition'. That edition is not available online and often contains significant differences. The following is an extract from an article in 'The Scotsman', 21 August 2009, (not sympathetic to the SNP) -

"All of those versions of history are possible, but when they do look back, historians should consider something more important, more fundamental, more significant: that at 1pm on Thursday, 20 August 2009, justice secretary Kenny MacAskill did what we hope and expect our elected leaders to do: he made the right decision.

...

This newspaper has been critical of the process that led up to that decision - the leaks, the hints and the spin, the delays and the signs of hesitation - but that should not detract from giving Mr MacAskill the credit he deserves for articulating a fundamental tenet of modern Scottish justice: the showing of mercy and compassion.

It is in that context that the criticism from the United States of the decision to allow Megrahi to return to Libya should be viewed. That a country which executes so many people, some of them undoubtedly innocent, and appears to hold to the principle that revenge equates with justice, should criticise Scotland's legal system is rich.

...

There are still so many unanswered questions that a public inquiry remains necessary and the intransigent UK government, which has refused to release papers, should co-operate fully. The search for truth must go on."

Perhaps in the United States elected governments, both at Federal and State level, are not expected to uphold the law.

Posted by: Michael Follon ‌ February 24, 2011 at 02:24 PM

Jibberish, Michael. The Scottish government just wanted to do something to make them feel powerful, even if it meant spitting on the memory of 11 Scots killed on the ground.

No one was talking about giving Megrahi the death penalty. He had the equivalent of a life sentence for murdering 270 people. In the article you cite, The Scotsman was changing subject to cover for this most childishly irresponsible undoing of justice.

What does the Scottish government do with murderers of 10 people? Give them a medal? You might enjoy rewarding murders, but thank goodness most people don't.

And even The Scotsman, on Aug. 21, 2009, was talking up Megrahi's alleged "three months to live."

The Scotsman published this column by a prostate cancer specialist that day:

Megrahi will need large amounts of morphine to ease pain

Published Date: 21 August 2009

By Chris Parker

WHEN men are in the final stages of prostate cancer nothing happens suddenly.

The average patient who has three months to live may be walking around talking to people. But that same patient might well be bed-ridden for a period of weeks before his death.

On the whole, symptoms can be fairly well controlled for men with prostate cancer in these final few months. This cancer's distinguishing feature, more so than other cancers, is that there is extensive involvement of many or most of the bones.

Typical symptoms include bone pain, tiredness and weakness and loss of appetite. ...

However, when men are first diagnosed they are typically fit and well and face a gradual deterioration.

Megrahi's deterioration is the most gradual in the history of three-month-to-live patients.

Five days after the doctor's article, The Scotsman seemed to be having second thoughts about Megrahi's health:

Medical advice on Libyan bomber in doubt

Published Date: 26 August 2009

by DAVID MADDOX

JUSTICE secretary Kenny MacAskill was last night under pressure to reveal more details of the medical evidence that led to the release of the Lockerbie bomber, after it emerged that only one doctor was willing to say Abdelbaset Ali Mohmed al-Megrahi had less than three months to live.

Labour and Conservative politicians have demanded the Scottish Government publish details of the doctor's expertise and qualifications, amid suggestions he or she may not have been a prostate cancer expert.

The parties have also raised questions over whether the doctor was employed by the Libyan government or Megrahi's legal team, which could have influenced the judgement.

The evidence provided by the doctor is crucial as compassionate release under Scots law requires that a prisoner has less than three months to live.

Posted by: Frank Warner ‌ February 25, 2011 at 01:10 AM

When I attempted to submit a reply to this comment a window appeared with the following message -

"We cannot accept this data"

When I submit a comment I normally do so under my own name. Because of this message I decided to comment using the pseudonym 'We The People' - that comment was accepted.

David Maddox is known to be a Labour Party 'hack'. The Labour Party is well aware of the requirements of the Data Protection Act 1998 and its effect on the publication of personal medical records. It was the UK Labour Party that presented it as a Bill to the UK Parliament.

Posted by: We The People ‌ February 25, 2011 at 02:48 PM

In other words, the power-drunk government of Scotland blindly freed the murderer of 270 people.

Posted by: Frank Warner ‌ February 26, 2011 at 03:51 PM

The following is the full text of the article by Chris Parker that Frank Warner cites in his penultimate comment. The text of the article in bold print is that which Frank Warner omitted -

Megrahi will need large amounts of morphine to ease pain

Published Date: 21 August 2009

By Chris Parker

WHEN men are in the final stages of prostate cancer nothing happens suddenly.

The average patient who has three months to live may be walking around talking to people. But that same patient might well be bed-ridden for a period of weeks before his death.

On the whole, symptoms can be fairly well controlled for men with prostate cancer in these final few months. This cancer's distinguishing feature, more so than other cancers, is that there is extensive involvement of many or most of the bones.

Typical symptoms include bone pain, tiredness and weakness and loss of appetite.

The pain, which needs to be controlled, can cause damage to the bone marrow which produces blood cells. In turn, the side effects mean the patient is likely to be anaemic, vulnerable to infection and often in need of blood transfusions.

Such patients can sometimes be more susceptible to bone fractures and are very often given bone strengthening medication.

The medical emphasis is on keeping them comfortable and controlling the symptoms. Pain-killing medication will be given for the bone pain and also possibly radiotherapy. Blood transfusions may well be needed to deal with the anaemia.

Normal bodily functions are not usually affected.

Sometimes the cancer can spread to the lung or liver via the blood. In that case hormone therapy is required but if that is not working chemotherapy can be used.

The bone pain is usually well-controlled but requires larger amounts of morphine as time goes on. The morphine can cause constipation which in turn requires medication to deal with that. Prostate cancer almost never involves the brain so a man's mental abilities are unlikely to be affected.

Occasionally there can be spinal chord compression which can lead to paralysis and the man may end up in a wheelchair.

However, when men are first diagnosed they are typically fit and well and face a gradual deterioration.

  • Dr Chris Parker is a prostate cancer oncologist at the Institute of Cancer Research and works at the Royal Marsden Hospital, London.
In July 1988 an Iranian civilian airliner (IR655) was shot down, while it was still in Iranian airspace, by the USS Vincennes, which was itself in Iranian waters, killing 290 people (including 66 children). The captain, Commander William C. Rogers III submitted a false report of the incident. It is a criminal offence under United States Code: Title 18, § 1001 for an officer of the United States to submit a false report. The then Vice-President of the United States, George H. W. Bush, said -

"I will never apologize for the United States; I do not care what the facts are."

In 1990 President George H. W. Bush awarded Commander William C. Rogers III the Legion of Merit.

Now what was that that Frank Warner wrote about giving a medal to murderers?

Facts are chiels that winna ding. - Facts cannot lie.

An Fhirinn an aghaidh an t-Saoghail! - The Truth against the World!