Eric appears to think that his desired ends justify the means:
Laws are there to be broken.Life would be pretty Dull if we didnt,London is just hurting and licking its wounds.Do your best london .Strip Scotland of Everything and take your little unionists with you.The end result is still the same ,Independence is coming.Earman appears not to care about the legality issue, but only about how the SNP might spin it:
In politics perception is all. The real meat of this story is that, regardless of legal issues, the people of Scotland will read, "WESTMINSTER SAYS NO TO SCOTS GETTING CHEAPER ELECTRICITY". Whether or not that is, in its minutia, absolutely correct matters not a whit. Why? Because perception is all.Gus1940 thinks that voters in Scotland will admire the SNP if they flout the law:
Back of the net! Another beautiful own goal scored by our colonial masters and another few thousand votes for The SNP.Connaughtboy agrees:
This is precisely the kind of issue the SNP should use to push the boundaries of devolution.He describes the scenario as:
a necessary show of strength by the Scottish Governmentand says:
...yes, to hell with this particular law. It will have the support of the Scottish people and that takes precedence over Westminster and the Scotland Act.MacGillicuddy pithily summarises:
Reserved matter? So what!Wee Fifer thinks that what he sees as two wrongs make a right:
You could argue that the signing of the 1707 document was an act of treason, at the very least the British state is not exactly based on a democratically legitimate "founding act"Derick fae Yell seems not to consider the Scotland Act to have any legitimacy:
The Law is whatever Scotland's sovereign Parliament cares to make it. end of story.Traquir thinks he’s living in the dim and distant past:
You do realize that the Sovereignty of theRed Etin argues that the Scotland Act should simply be ignored:
Scottish people is paramount, even the high heid
yin Brown signed an oath on that although he
broke that solemn oath to the Scottish people.
If it is the desire of the Scottish people, as represented by our government in Edinburgh, that Scotland talks to Norway about electricity, then that's sufficiently democratic for me.And then, as ever, it gets personal...
Scotindy (who in a previous thread claimed to have been an SNP councillor) says:
AM2 You are the perfect example of exactly why WE SCOTS WANT NOTHING TO DO WITH YOUR UNION WITH england. You are as pathetic as the rest of your DIM WITS!!!!!!He follows up with this piece of racial resentment and delusion:
BERR, Jobs for the english boys, and try to keep those SCOTS in order. NEVER NEVER NEVER NEVER. Your unionist days ARE DONE!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!Finally, Weh seems convinced that I am a “traitor” and a “quisling”:
AM2-when we achieve our independence, you will be tried unde SCOTS made laws, and sentenced as befits ALL quislings who seek to undermine the Scottish state!His vision of an independent Scottish State sounds just delightful, doesn’t it? I’m sold!
I suggest you apply for emigration NOW, as independence is NIGH-there will be NO mercy shown to TRAITORS of the Scottish State!
Eric's comment is the most worrying of all. What protection do Unionists have in a independent scotland from people such as Eric if not the law.
As an engineer in an industry where BERR is creatively titled the 'Bureau for the Elimination of Rational Reasoning' I'm glad the government is actually acting in the interest of the public and not at the behest of the pervasive high-level corporate lever pullers who manipulate the energy regulator. They are probably the most powerful Quango in the land.
Read up on the UK-Continental Interconnector gas supply pipeline which was so heavily manipulated by BERR (formerly DTI) and only now is it reaching its potential to protect UK consumers from the energy stranglehold of big business.
Here are some very pertinent facts concerning the Treaty of Union in 1707 and the Scotland Act 1998.
1. The issue of sovereignty was specifically excluded from the Treaty of Union because of differing legal definitions of sovereignty. Under English constitutional law sovereignty lay with Parliament, whereas under Scottish constitutional law sovereignty lay with the people - of course in 1707 the constitutional definition of 'the people' was different than it is today due to the different basis on which Scots Law is based. This means that the UK Parliament has NEVER been sovereign but only ASSUMED to be sovereign because of its location.
2. '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. From time to time attempts have been made to appeal to the terms of union, but always without success. The list of violations of the treaty is already a long one, and always growing longer...The fact is that, contrary to the beliefs and hopes of those who framed it, the treaty of union has proved to be a mere scrap of paper, to be torn up at the whim of any British government.'
SOURCE: 'Scotland: The Shaping of a Nation' by Gordon Donaldson, pp. 58-59, ISBN 0 7153 6904 0.
3. 'The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law...I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done.'
SOURCE: McCormick v Lord Advocate 1954 (1953 SC 396).
4. '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.
5. The Scottish Parliament may have been established by the Scotland Act 1998 which was enacted by the Westminster Parliament, itself subject to English constitutional law, but it is located in Scotland where it is subject to Scottish constitutional law. Between 1707 and 1999 the legal and constitutional status of 'the sovereignty of the Scottish people' is that it has "merely been unavailable".
6. Replace 'constitutional matters' and any reference to an independence referendum in the extract from the Scottish Affairs Committee Report with any of the other reserved matters in Schedule 5 of the Scotland Act 1998 then consider the constitutional, legal and logical implications VERY VERY CAREFULLY.
The 'Sanitization' of Scottish History - http://follonblogs.blogspot.com/
Michael
I have to say: that's a backward-looking and highly contrived argument.
Step away from it. Join me in 2008. Please - think.
Think about society. Think about real people and their real needs. Then think about the attitudes evidenced by the comments which I quoted in this post. Imagine the facial expressions of the people who typed them. Imagine their mental state. Open or closed? Generous or mean-spirited? Constructive or destructive?
In a nutshell, that's the choice Scotland faces.
SU, some very eye-opening posts there... You're quick to dismiss Michael's post but the manner you do so makes me think that you don't actually understand the UK constitution or constitutional law ... also indicated by your erroneous claims of illegality and "breach". Wow, I may have disagreed with you in the past but I did think you knew what you were talking about - I was obviously mistaken.
Talking of real people and real needs, is that not exactly what the Scottish Government is trying to do with looking at options for security of energy supply??
Scottish Unionist, consider the position between Westminister and Holyrood on this issue.
Who is being closed, mean-spirited and destructive?
Are you surprised that patriotic Scots (lets face it, we are a terribly firey people) react with a stern backlash.
Leaves on the Line
Non-acceptance of nationalist orthodoxy in respect of the British Constitution doesn't signify a lack of understanding!
If you want to appreciate why Michael and I will never see eye-to-eye on this, Albert Venn Dicey's "The Law of the Constitution" might be a good place to start.
http://www.constitution.org/cmt/avd/law_con.htm
SU, I know Dicey well and may I say that a reference to him is predictable and slightly erroneous.
Firstly you confuse the theory of sovereignty with the doctrine of parliamentary sovereignty - the latter being a legal concept - sometimes defined as the difference between "political sovereignty" and "legal sovereignty". The problem with using Dicey in this arguement is that his supreme authority is simply "the Queen in Parliament" and does not address from where that instiution derives its constitutional supremacy - he only addresses the question of legal sovereignty, which is not the whole picture.
Also, typical controversies associated with Dicey are:
- under the Diceyan doctrine it would be possible for Parliament to pass a law abolishing democracy. This would be legally sound, but would Parliament retain its sovereign authority if it did so?
- the Diceyan theory of Parliamentary sovereignty clashes with contemporary reality of EU membership - the "tide" that Lord Denning famously referred to. Which has supreme legal authority?
Getting back to the theory of from where sovereignty is derived, scholars such as Rousseau, Paine and Locke had variations on a common theme in that sovereignty is derived from the people, and that the government exercises it in their name. If the people choose to change the constitutional path then their wish is sovereign.
BTW... they were around far too long ago to be accused of being part of a "nationalist orthodoxy".
Oh and as you choose to refer to Dicey, a Victorian that published in the 1880s, it is somewhat hypocritical to attack Michael Follon as "backward looking" and not in 2008!
Good job I didn't opt for May's 1844 treatise, isn't it? ;-)
One serious question for you: which of the "CyberNat" posts do you think are justified by your constitutional slant?
Quite, Erskine May is another one of those "legal" sovereignty bods...
Oh, tonight I managed to get over-enthusiastically blogging all by myself.... ;-) Michael's post may have been slightly off-topic, but I personally consider much of it be be theoretically sound - that's all!
You also know I have no truck with cyber ranters on our side or yours... but the view presented by the Labour Party, through the SoS is misleading to those that don't understand as I mentioned on your other thread...
Enthusiasm is a positive attribute! And thanks for the perspective.
I'm glad we agree as far as the "cyber ranters" are concerned. Incidentally, here's particularly sobering post about the phenomenon on the Green-aligned blog "Two Doctors".
Michael Follon
You assert:
"under Scottish constitutional law sovereignty lay with the people - of course in 1707 the constitutional definition of 'the people' was different than it is today"
Really? I know there isn't a pre-1707 Scottish constitution, but are there pre-1707 acts which refer to sovereignty of the people?
After all the pre-1707 parliament doesn't seem to be a particularly democratic body - what was it, an electorate of a couple of thousand?
I'm glad you add the second part of your sentence. I do find it strange and incredible that many Nationalists project the modern definition of "people" onto the Scottish leadership of 1707 or 1320. I suspect that those gents' definition of "people" was "important people - the ones like us with fancy titles and hats."
I see you're also citing the old chestnut of McCormick v. Lord Advocate 1954. I am continually astonished by the significance Nationalists put on this.
Can we agree the following as facts:
- the case was about the rather trivial matter of the Queen styling herself "Elizabeth II"
- Lord Cooper joined with the other judges in throwing the case out (Royal Prerogative; Her Maj can call herself Elizabeth II or Rameses Niblick III of Sheba if she wants to)
- Cooper's comments on sovereignty thus form a side comment to an only tenuously related case, and so not capable of having any great weight put on them.
In any case a quick examination of history quickly calls Cooper into question. The notion of parliamentary sovereignty did not pop into existence in 1707, but developed gradually over centuries; and by no means all of that development took place in England.
Some (pre-1603) took place there; rather a lot of development took place between 1603 and 1707 when Scotland and England were increasingly linked - most notably, of course during 1652-60 under the Commonwealth; and more development took place after 1707.
So in a very real sense "parliamentary sovereignty" is a British concept, not just an English one.
Isn't it curious that while you mention that I assert the sovereignty of the people you make no reference to the extract from the Scottish Affairs Committee Second Report of Session 1997-1998 (HC 460-I)- so you see it's not just me that asserts its existence. The doctrine of the sovereignty of the people did not just come into being but evolved over the centuries from the original community of the realm, which emerged following the death of Alexander III in 1286, into the democratic style it has today where it rests with the total registered electorate -
'There can be little doubt that the phrase was synonymous with the "bone gent, probi homines", 'good men' and "haut hommes" who protested in 1291 when Edward insisted on Scottish acknowledgement of his overlordship. The words were to change their meaning later when any free man...was technically a "probus vir".' - page 65,
'Besides the community of the whole realm there were territorial communities, but the realm could also be thought of as divided into what one might call vocational communities. Thus the self-styled "communitas", which professed to act on behalf of the nation, developed into a parliament which consisted not indeed of a single "communitas" but of "tres communitates" or three estates, for to the lay tenants of the crown and the great churchmen there were added burgesses.' - page 92,
SOURCE: 'Scotland: The Shaping of a Nation' by Gordon Donaldson, ISBN 0 7153 6904 0.
Up until the constitutional changes of 1640-41 the Scottish Parliament was effectively part of the king's court.
With regard to 'parliamentary sovereignty' you further write -
'The notion of parliamentary sovereignty did not pop into existence in 1707...'
On that point I agree with you - because it already existed.
'The Lord Advocate conceded this point by admitting that the Parliament of Great Britain 'could not' repeal or alter such 'fundamental and essential' conditions...I have not found in the Union legislation any provision that the Parliament of Great Britain should be 'absolutely sovereign' in the sense that that Parliament should be free to alter the Treaty at will.'
SOURCE: MacCormick v Lord Advocate 1954 (1953 SC 396).
You also write -
'So in a very real sense "parliamentary sovereignty" is a British concept, not just an English one.'
With regard to your use of the term 'British' it is important to be clear about it in relation to the law. There is NO such thing as British Law or a British Legal System - only Scots Law and English Law (I include Welsh Law and Northewrn Irish Law within English Law as they are essentially variants of it). -
'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', Volume I, Cmnd. 5460.