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[Confidemus]

*Sigh*

Yes, I know this article was not by Icarus. It was, however, posted on his webspace, endorsed by him in the comments, and has been used to support similar claims made in various other articles on Wings.

As for what's wrong with it? Where to start...

PROBLEM 1

The claim that it is a fundamental aspect of Scottish constitutional practice that the people can remove their sovereign. Well yes, it is true that this was the case for the Kingdom of Scotland. Absolutely. Small problem though; it's also true for England. The control of the crown, and with it the institutional mechanisms of state power, were frequently subject to popular resistance. Are people really *that* unfamiliar with Richard III? Charles I? James II? England was a republic after one of its civil wars, for Christ's sake!

There is nothing special about Scotland here, nor is it inconsistent with anything in English constitutional theory. Indeed if you look at Coke or Blackstone or the more recent, Dicey, you will see that even Parliamentary sovereignty, the right of Parliament's three houses (monarch, Lords and Commons) acting in consort to make or unmake any law is limited by the possibility of popular resistance to its exercise.

PROBLEM 2

That the Declaration of Arbroath is a contract between the King and the people (through the nobles) allowing him to be removed for ignoring their wishes. It's just not. The Declaration of Arbroath is a letter signed by a bunch of nobles and clergy urging the Pope to recognise Bruce as King of an independent Scotland and pretty please to reverse his excommunication and to reject England's claims of overlordship. It's worth pointing out the Pope did not accede to this request.

This is not a legal limitation on Bruce's sovereign authority, and the political strength of it is no greater than the acts of the nobility in England in the same era to remove their monarchs from time to time. It's worth pointing out further, that Scotland would break from the Roman Catholic Church anyway, a mere 2 centuries or so later, with the Reformation, and that most of the political authority a Papally supported Kingship might have had evaporated with it.

PROBLEM 3

Some pish about the Burghs providing a form of quasi representative democracy post the Treaty of Northampton. This is bollocks. Scotland was no more or less a democracy than England here. Observe the overlap between the "Three Estates" in the law-making process and, well, the way the English Parliament was composed. The Burghs? The Commons. The Nobles? The Lords. The Kirk? The Lords Spiritual. English Kings were no less vulnerable to resistance of laws by the Burgh mobs than any Scottish King.

PROBLEM 4

The assertion that the Claim of Right Act 1689 created a special position for Scotland. This was an Act of the Scottish Parliament, which served the same function as the Bill of Rights Act 1688. It set out the basis of the terms on which the crown was withdrawn from King James VII and II (mainly that he was a dirty Papist: let's be clear, the Claim of Right was a sectarian oppression, not a declaration of the people's sovereignty) and served to make the monarchy a position which exists by virtue of, and which depends upon, a statute. This is re-enforced by the various pieces of legislation that are passed in the run-up to, and culminating in, the Treaty of Union, ratified by both Parliaments.

PROBLEM 5

That Elizabeth is Queen of Scots and that she can be removed from the "Scottish" crown if she acts contrary to the will of the people of Scotland, or says she thinks they shouldn't be independent. This is just flatly untrue. The Claim of Right doesn't even mention the word "sovereignty" or a derivative. It doesn't even mention the word "people" in the context of sovereign authority or similar. It certainly doesn't stop the monarch from expressing an opinion.

It is also worth pointing out here that the Scottish Crown ceased to be a thing under the very first Article of the Treaty of Union, which the Parliament of Scotland ratified in the Union with England Act. The monarch is now crowned as King of the United Kingdom. There is nothing in constitutional law permitting the withdrawal of the monarchy only as it applies to Scotland, and as has been the case in Scotland since the Claim of Right, any withdrawal would have to be done by the legislature, it having the sole authority to determine the statutory basis of the monarchy.

PROBLEM 6

The dribbling nonsense about Fife County Council being protected by the Queen refusing to sign the Order in Council required pursuant to the Local Government Act 1974's reforms of local government. This is absolute horseshit. The assertion is that the burghs and counties had fundamental rights which would be transgressed by the Act. This is bullshit. Fife County Council was only created in 1889, by a Westminster statute, after the Union (!), and was categorically abolished and replaced by the new law. Observe that both of the Orders in Council relating to the Act were approved by the Queen and Fife Regional Council came into being.

PROBLEM 7

That Lord Cooper's judgment in MacCormick v Lord Advocate upholds the principle of popular sovereignty in Scotland. This is just flatly untrue. He merely questions whether the English conception of Parliamentary sovereignty necessarily applies to Scotland. He does not posit a positive alternative.

As an aside, Lord Cooper was wrong. His views were what we lawyers call "obiter" in the sense that they were not critical to disposing of the case at hand, and are not binding on lower courts. It has since been contradicted by others, such as Lord Hope, in Axa General Insurance v Lord Advocate, in higher courts, where he endorsed Lord Bingham's claim in a previous case that Parliamentary sovereignty was the bedrock of the British constitution. Observe both that this was a Scottish case and that it is not inconsistent with anything in statute. Indeed Art XVIII permits the assimilation of public law of the two Kingdoms into one. We'll come back to Axa later because it is the source of much hilarity.

In so far as anyone can make a case that Parliament is not sovereign in Scotland, they have an uphill struggle. As early as Balfour and Skene's Practiks, we have institutional writings which say that Acts of the Parliament of Scotland were the most senior of positive laws, and that judges may not strike them down. If anything, Scotland has, in the Three Estates, an even stronger claim to this being the case, than England, where this question was only settled by Civil War where Parliament claimed its right to make laws in defiance of the King's decrees. The Claim of Right actually makes a weaker claim for the people as against the Crown than does the Bill of Rights, which at least encapsulated things like habeas corpus in statute.

PROBLEM 8

That sections 5 and 30 of the Scotland Act are somehow unconstitutional and were passed to pacify MPs. Let's be clear what these sections are and what they do. Section 5 sets out the rules for candidate eligibility to stand for election to the Scottish Parliament. Section 30 gives effect to Schedule 5 of the Scotland Act, which lists the matters which are reserved to Westminster on the creation of this new entity the Scottish Parliament. It also provides for the mechanism by which powers might routinely be extended and withdrawn (see all the chat about the s30 Order that came with the Edinburgh Agreement to let the SP legislate for the referendum).

Neither of these sections are unconstitutional. The Scottish Parliament is a body which exists by virtue of statute and whose powers derive from statute (see Lord Rodgers' ruling in Whaley v Watson). The connected claim that the UK Supreme Court is also contrary to Scots Law is similarly nonsense as are the claims made about it. For most of devolution, the enforcement of the Scotland Act fell (ultimately) to the Judicial Committee of the Privy Council, and only latterly to the UKSC. Most cases are still settled in the Court of Session or, where criminal law is at issue, the High Court of Justiciary. In neither case can there be said to be an "English" court presiding over Scottish matters, which was all the Treaty of Union actually prohibits (read Arts XVIII and XIX for more detail).

The stuff about Scottish judges being included to dupe people into believing it is legitimate is similarly nonsense, as they were the same Scottish judges as had been serving both in the House of Lords and the JCPC before the Scotland Act was even passed.

Which leads us rather beautifully and last but by no measure the least, to...

PROBLEM 9

The claims made about Axa and others v The Scottish Parliament [sic.]. We see this nonsense about s5 and 30 of the Scotland Act being raised again. Let's be absolutely clear here: neither section is referred to in either the Inner House's judgement on the case, or the UK Supreme Court case to which he subsequently refers. Indeed, the words "section 5" only appear in reference to section 5 of the Damages (Asbestos-related Conditions) (Scotland) Act 2009, the Act which it was claimed by the insurance companies was ultra vires. Note, of course, that in this case the Lord Advocate, being Holyrood's most senior law officer, was arguing that the Scottish Parliament was acting within its competence.

This all makes one thing perfectly clear. Absolutely no one in this case was claiming that:

"[The UK Supreme Court] had no power to set aside any bill, statute or act of the Parliament of Scotland [sic.] where that bill expressed the clear will of the (sovereign) people of Scotland."

The insurance company was claiming that the Act was ultra vires because the legislation violated the procedural protections of common law (that the legislation was unreasonable, interfered with legitimate expectations, and pursued improper purposes) and alternatively that it violated Article 1 Protocol 1 of the European Convention on Human Rights by disproportionately interfering with the right to property. As a basic look at the Scotland Act tells you, if legislation violates the ECHR, then it gets struck down.

The Lord Advocate responded to the second part by saying that even if there was an interference in the Convention rights, they were not disproportionate and were therefore justified. The court agreed. Observe that in these arguments it is tacitly accepted that if the interference had been disproportionate, The Lord Advocate would have admitted that the law could be struck down.

In relation to the common law challenges, The Lord Advocate claimed that Acts of the Scottish Parliament, although a form of delegated legislation, in that the power to make those laws comes from a statute and isn't "inherent", were different from other forms of delegated decision-making. Decisions made by a government minister, secondary regulations and the like, are challengeable on broadly two grounds (excluding incompatibility with Convention rights under the Human Rights Act).

The first is on the grounds that they are ultra vires or that they have overstepped the power that has actually been delegated to them. So for example, the Secretary of State for Education acts ultra vires if he declares war on Lichtenstein or passes regulations to privatise all state schools, as there is no statute giving him the power to do either of those things, nor does he have inherent power to do either of these things.

The second category of grounds for challenge are a range of tests where you claim, even though the decision-maker had the power to make a decision, that it should be struck down because they have exercised that power in a way which is, by various common law tests, irrational, improper, arbitrary or unreasonable.

The Lord Advocate claimed that, because the Scottish Parliament was a democratic legislature, those common law challenges in the second group should not apply to any Act of the Scottish Parliament. As a democratic legislature, it had the ability to discern the purposes for which legislation was derived and to decide for itself what is reasonable, what is improper and what is irrational. Therefore, provided that the power generally had been given to the Scottish Parliament, an Act should be immune to common law challenge.

The court broadly agreed with The Lord Advocate, but re-iterated that the courts could still retain the right to intervene on various common law grounds. It merely accepted that it would be inappropriate for the courts to substitute their view on reasonableness, irrationality or arbitrariness for that of a democratically elected legislature which discerned the purposes of legislation, those ultimately being democratic judgments subject to detailed scrutiny and distinct from those that courts tests made in assessing decisions made by a government minister or under regulations. Lord Hope's speech, which is a really good one, specifically says that in instances of bad faith, or attempts by legislation to remove the ability of judges to judicially review decisions, the courts would still reserve the right to strike down legislation.

FINAL ANALYSIS

But apart from all that, it's an excellent article that makes an IMPORTANT CONTRIBUTION TO THE DEBATE.

I know you put an awful lot of time into that, but

Next time, don't use "parses".

Thanks.

[Mr Bairn]

I know you put an awful lot of time into that, but

Next time, don't use "parses".

Thanks.

I know you put an awful lot of time into that, but

Next time, don't use "parses".

Thanks.

^^^ Too thick to understand it imo. Accurately explains your profession as well.

[Ad Lib]

I know you put an awful lot of time into that, but

Next time, don't use "parses".

Thanks.

You *did* ask what specifically I objected to. So I told you. Not my fault.

The word parses is entirely appropriate to this situation. He gave structure and exposure to a number of false and preposterous claims by allowing someone else to argue them on his web-space and support those claims with ludicrous lies and defective evidence.

[Confidemus]

^^^ Too thick to understand it imo. Accurately explains your profession as well.

[Confidemus]

You *did* ask what specifically I objected to. So I told you. Not my fault.

The word parses is entirely appropriate to this situation. He gave structure and exposure to a number of false and preposterous claims by allowing someone else to argue them on his web-space and support those claims with ludicrous lies and defective evidence.

Don't you feel "parses" was a tad pretentious though?

[Mr Bairn]

Meanwhile, I think it's time for the ATOS figures.

[Confidemus]

Meanwhile, I think it's time for the ATOS figures.

[Baxter Parp]

You *did* ask what specifically I objected to. So I told you. Not my fault.

The word parses is entirely appropriate to this situation. He gave structure and exposure to a number of false and preposterous claims by allowing someone else to argue them on his web-space and support those claims with ludicrous lies and defective evidence.

Translation: He posted something written by somebody else on his blog.

[Ad Lib]

Don't you feel "parses" was a tad pretentious though?

No. I consider using a varied vocabulary to be an integral part of not being an idiot.

Translation: He posted something written by somebody else on his blog.

Parses being a much more concise way of saying the same thing.

[ayrmad]

A varied vocabulary is one thing however you are doing it to appear superior and every one of us can see straight through it.

Purposive obfuscating utilising unconventional verbiage is mere vanity posing as faux intellectualism.

Clear communication is everything.

George Galloway thread for this pish.

[Ad Lib]

A varied vocabulary is one thing however you are doing it to appear superior and every one of us can see straight through it.

Purposive obfuscating utilising unconventional verbiage is mere vanity posing as faux intellectualism.

Clear communication is everything.

Apologies for thinking that people like you are able to grasp a simple word like "parse".

[git-intae-thum]

Apologies for thinking that people like you are able to grasp a simple word like "parse".

take away the "p" and I think more people would get what you are all about.

[Confidemus]

No. I consider using a varied vocabulary to be an integral part of not being an idiot.

Well, in that case, I'm anispeptic, frasmotic, even compunctuous to have caused you such pericombobulation.

[Baxter Parp]

Apologies for thinking that people like you are able to grasp a simple word like "parse".

When you should really apologise for pretending the word is in any way common, frankly. And for being pompous and pretentious while you're at it.

[H_B]

You are trying to make yourself look intelligent.

Certainly not something anyone will accuse you of...

[Confidemus]

Yes is a best priced 3/1 according to Oddschecker. As short as 5/2 in places.

Well those odds have shortened quite a bit.

Pleasing.

[ayrmad]

Yes is a best priced 3/1 according to Oddschecker. As short as 5/2 in places.

I did read somewhere that all the bookies are receiving lots of bets on YES, still a bit to go but it will be interesting when YES reach 6/4 or so.

[Ad Lib]

When you should really apologise for pretending the word is in any way common, frankly. And for being pompous and pretentious while you're at it.

If I limited the vocabulary I used to communicate on here to the words that you consider "in any way common" passive onlookers would think I read at the level of an 8 year old child.

[Confidemus]

If I limited the vocabulary I used to communicate on here to the words that you consider "in any way common" passive onlookers would think I read at the level of an 8 year old child.

Now you're just being silly. Does the way that other people view you resonate so strongly with you?

[banterman86]

Are people arguing over whether a word is too fancy to have been used?