Is it the case that both Scotland and England remain independent?

The technical argument is good but I would like someone who has some legal experience to have a close look at this means of escape from Brexit Britain. You see, as far as I can fathom it, everything depends on the Treaty of Union itself and the way it was enacted.

READ MORE: Have we have got this indyref thing the wrong way round?

The way Alan describes it Scotland and England remain, on paper, two independent nations but joined by a treaty etc. But is that actually the case? As I have read about it, this would have been the situation had it been a “federal treaty”. But, in fact, it was a treaty of incorporation. Scotland and England were both to be incorporated into, and both become part of, the New “Britain”, with a new written constitution formalising the creation of this new political entity.

However, that never happened. The Scottish Government was dissolved, but it seems the English Government merely adjourned then re-opened as the “British” Government. No new written constitution to formalise the formation of Britain ever appeared (maybe this is why “Britain” means “England” – and vice versa – to so many people). That would mean that only Scotland was incorporated, and it was incorporated into what is actually “The English Government continuing”.

In Lord Belhaven’s speech to the Scottish Parliament, in October 1706, before its dissolution he said: “When I consider this treaty as it hath been explained and spoke to before us – I see the English constitution remaining firm, the same two Houses of Parliament, the same taxes, the same customs, the same excises, the same trade in companies, the same municipal laws and Court of Judicature; and all ours [Scotland’s] either subject to regulations or annihilations.”

His words make it quite clear that this was to be the same English Government operating in exactly the same manner with Scotland incorporated into, not a new British Government but the English Government merely with a different name. If this is what has happened it is through the greed of our nobility, and the Act of Settlement, at the time of the Treaty of Union. This guaranteed they would get back the money they lost in the Darien Scheme, although Scotland was obliged to take on a large portion of England’s national debt in return. We may well have been, as Rabbie Burns maintained, “Bought and sold for English gold”.

So, what is the legal situation? If this is the case and we have been incorporated into England, by this treaty, and made part of England, rather than part of a new entity, does Scotland as a legal independent nation sharing in that treaty actually exist? Or are we just another English shire? If we don’t exist as an independent party to that treaty any more, and remain just a part of England, can we revoke the treaty? Is that not why we have to ask England’s permission for a Section 30? If this is the case, have we not become just a part of England as Catalan has become just a part of Spain? Doesn’t that impose all sorts of difficulties on us and greatly limit our various means of escape to independence?

Maybe this is why the two protagonists for PM keep refusing to allow us a new indy referendum. Maybe they are more aware of the situation than we are. Maybe we will have to go before the UN International Court of Justice, perhaps just to find out if we have any right at all to demand independence. I sincerely hope it turns out as straightforward as Alan Laird suggests, but “ah hae ma doots!” Then again, the solution may lie in Alan’s suggestion of giving the English electorate the opportunity to “cast us adrift”.

Charlie Kerr
Glenrothes

I HAVE to take issue with Alan Laird’s letter in Tuesday’s issue. He said that if one of the four nations in the UK leaves, the UK ceases to exist.

Firstly, there are only two kingdoms in the UK, Scotland and England. Wales is constitutionally part of England and is a principality of that kingdom. Northern Ireland is made up of partitioned six counties of one province of former kingdom.

Secondly, unless and until the people of an independent Scotland vote to become a republic, there will still be a de facto united kingdom. One monarch, two kingdoms. This is the position that existed between 1603 and 1707. Personally I think we could manage well enough without a bloated monarchy, but that’s a debate for the future. Right now, if the price of being an independent nation is that we have a titular head of state who is there because of an accident of birth, so be it but it’s not my preference.

Ranald Dods
Via email

PUT Alan Laird’s Plan C (Letters, July 16) together with Gordon MacIntyre-Kemp’s article on 18 October 2018 and we begin to see the fuller picture, or at least a wee bit of it. I’m neither a legal nor a constitutional expert but maybe The National can bring people who are to give us answers to what is and isn’t feasible.

Since the Act of Union (Ireland) 1800 was repealed by the Republic of Ireland, are there lessons we can learn which would enable the Scottish Parliament to repeal the Union with England Act of 1707?

Or do we wait for the Lords to come up with their revision of Act of Union? As Gordon MacIntyre Kemp said: “The old Union would cease to exist and a mechanism would have to be found to allow sovereign Scotland to sign up to the new Act, for it would not be a union if forced upon us.”

My gut feeling is we need to explore the ways in which we can legally repeal the Union.

We’re told it would be too messy since all Acts passed since the 1707 Acts would cease to exist. Surely if we have our constitution ready to be approved by Holyrood, the fact that the Acts of Westminster passed between 1707 and now no longer exist is not a problem. Think of all the British colonies that became independent in the 1960s. If they could do it surely we can too.

The only problem to all Acts ceasing to exist would be for the country we left, and I’m sure they’d find a way around it.

Can The National find experts to discuss this?

Catriona Grigg
Embo

I REFER to Alan Laird’s letter in Tuesday’s paper. I would have to ask if the Scottish Government would need to go to the United Nations for ratification unless Westminster wished to dispute either the existence of the Treaty itself, or that the Scottish Government couldn’t revoke it without their consent. After all, he points out that they have breached the terms of the articles of Union consistently since 1707. It is also foreseeable that this state of affairs will continue indefinitely unless the Scottish Government tells Westminster to cease and desist.

Since the Treaty Of Union 1707, Scotland has effectively continued to have some autonomy in some spheres with regards legislation, in so much as the Scottish legal system and religion have always been separate from the United Kingdom. Thus our legislative powers have never ceased to exist, only limited by Treaty with Westminster. This would continue indefinitely unless one side or the other wanted to review the terms of the Treaty. Which is the case at present.

As Westminster has failed to abide by the terms of the Treaty, over a period of time and consistently since 1707, we have the option of:

a) to apply to the United Nations International Court of Justice as he states, but we should be able to do this today citing various times the terms have been broken by Westminster. There are certainly a good number of issues that could go to arbitration at present or for clarity. After all we are being denied our right to remain as part of the EU as decided by the citizens of the sovereign nation of Scotland in a democratically held referendum on the issue, and we are being denied the right to make our own treaties. There is also the fact that when the referendum was held, 60% of the United Kingdom voted to remain in the EU (Scotland, Northern Ireland and Gibraltar) while only 40% voted to exit (England and Wales). Yet the powers that be in Westminster are determined to take the whole of the United Kingdom out of the EU against our wishes. This would certainly put an end to Brexit for at least two or three years.

b) The Scottish Government (as the signatory to the Treaty of Union), must have the right to review it at any time it so wishes and deems necessary for the good of the nation(s) of the United Kingdom of Great Britain and Northern Ireland and of course to ensure that we are not losing out on the Treaty, and to suggest and or negotiate amendments to the Treaty as and when it is deemed necessary. If Westminster then refuses to hold a joint review of the Treaty and or amend it, then it effectively becomes null and void by default of Westminster. In which case we can then open negotiations with Westminster for the dissolution of the United Kingdom Of Great Britain. Westminster then is in an awkward political situation in which they either have to keep the Treaty of Union and proceed with a joint review with the Scottish Government, or to revoke it and negotiate a settlement with the Scottish Government for the break up of the United Kingdom.

c) The third option is to go to the UN for clarification on a lesser issue such as a Section 30 Order from the Prime Minister of Westminster – not Westminster itself, which is the sovereign power – to ask to go to the people of Scotland and ask for a mandate to see if they wish to retain the Treaty of Union. After all, the Prime Minister doesn’t have any written powers under the Constitution of the Treaty of Union 1707 to refuse such request, nor does Westminster.

Alexander Potts
Kilmarnock