The Elephant in the room

The position of Scotland and England within the current Union is constitutionally very different from the position of Wales and Northern Ireland which, like England, come under the thrall of the English Crown, constitutional practices and law but are constitutionally and legally territories of the English Crown.

Scotland retains its own crowned head, law and constitutional practice protected under article 19 of the Treaty of Union 1707 for 'all time' where for all time means exactly that, This is the treaty which created the 'parliamentary union' between Scotland and England under which we currently operate and also makes clear Scotland was never subsumed by England.

This means devolution within Scotland has a very different basis and impact on future constitutional practice and development than devolution in Wales, Northern Ireland or to the English regions as Scots Law and constitutional practice is determined by Holyrood and not Westminster.

English Law and Scots Law are distinct and different legal codes, any future UK constitution is going to have to deal with this elephant in the room. How do you reconcile the 1689 Claim of Right (Scotland) which establishes the people of Scotland as sovereign versus the English Claim of Right which establishes the English parliament as sovereign?

The current parliamentary system has never resolved this constitutional dichotomy but fudged it with the 'Scottish Grand Committee' amongst other slight of hands, in the 1970's this role became the fiefdom of the Scottish Office and in 1999 all the Scottish Office's legal and therefore constitutional powers were devolved to the Scottish Parliament where they now reside.

Blair and Derry Irvine's back of a fag packet, UK Supreme Court was supposed to be a check on this but the reality was when Cameron sought to apply Westminster's constitutional supremacy to prevent the Independence Referendum he was advised not to push his luck. The Scots Law Lords in the UK Supreme Court would be likely to uphold the right of the Scottish Parliament to hold such a referendum based on the judgement made by Lord Cooper in 1953, McCormack vs The Lord Advocate before the Court of Session and the concessions in law made to Lord Cooper by the Lord Advocate on Westminster's behalf. Lord Cooper's judgement was applied in AXA et al vs the Lord Advocate before the UK Supreme Court which found in matters of law the Scottish Parliament was not subservient to the UK Parliament as such bills and laws of the Scottish Parliament were 'intra vires' as they represented the considered will of the people of Scotland.

Not so much an idea but seeking to raise an important constitutional and legal point that the United Kingdom is not unified legally and constitutionally and any future UK Constitution will have to resolve this tangle.

Harry Blain Apr 14, 2015

As Peter has not returned to update/edit this idea since the editing phase, the moderators (Michael and I) will be taking over any further edits unless Peter wants to return to it. Does anyone have any thoughts on how this can be refined? As Peter acknowledges this is not explicitly and idea but nevertheless raises an important issue. 

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