The Union Laid Bare

A whistle stop tour of the Treaty of Union with respect to Scots law and popular sovereignty

Before we dive in, it is worth noting that anyone discussing this stuff is likely to be asked about the Scotland Act.  The first point to note is that the Scotland act is not really relevant to the Act of Union and its relationship with Scots law.  The Scotland Act is an Act that devolves power from the British government.  All the Scottish parliament does is administer devolved matters.  Because Scots law is preserved by the Act of Union the power held within those laws lies within the hands of the Scottish MPs on the benches of Westminster.  They can only be properly used by a convention of the Scottish Grand Committee.  It is not that the Scotland Act repeals any of Scots law, it can’t, the Scotland Act and Scottish parliament are children of the Westminster government and therefore the Scottish parliament is not governed by Scots law, although, it is subject to Scots law because it is an entity operating on Scottish soil.  For instance, the Scottish parliament cannot infringe upon the liberties, freedoms and rights of the Scottish people.

From the Act of Union, Article 19

"That the Court of Session or College of Justice do after the Union and notwithstanding thereof remain in all time coming within Scotland as it is now constituted by the Laws of that Kingdom and with the same Authority and Privileges as before the Union subject nevertherless to such Regulations for the better Administration of Justice…"

Article 19 tells us that the laws in Scotland shall stay the same as they were prior to Scotland’s union with England.  Article 19 even uses the same language as the Scottish Claim of Right.  The Scottish Claim of Right tells us that our rights, freedoms and privileges are inalienable meaning they cannot be repealed, voted out of existence or expunged by any other means.  We must look at the Declaration of Arbroath to determine how sovereign Scottish citizens’ rights and freedoms and privileges can be removed.  It tells us that Scotland shall be Scotland so long as 100 Scottish citizens remain alive.  The only thing that can take away the rights, freedoms and privileges of a Sovereign Scot would be genocide.

From the Act of Union, Article 20

"...That all heritable Offices, Superiorities, heritable Jurisdictions, Offices for life and Jurisdictions for life be reserved to the Owners thereof as Rights of Property in the same manner as they are now enjoyed by the Laws of Scotland notwithstanding of this Treaty..."

The part in bold says that the rights of property will remain the same before.  All of Scots law is rolled over into the Act of Union and upheld by the Act of Union.  So our Claim of Right tells us that, amongst other things, a sovereign Scottish citizen has:

• The right to equal representation in a Scottish court of law.

• Sovereignty over the land, oceans, seabed and minerals and the right to decide collectively upon how that land and its minerals are used for the common good of the people of Scotland.

From the Act of Union, Article 21

"That the Rights and Privileges of the Royal Boroughs in Scotland as they now are, do remain entire after the Union and notwithstanding thereof."

Article 21 tells us that the Royal boroughs of Scotland shall remain. Those boroughs are now better known as the city councils and regions of Scotland.  Their power is lent to them by the people of Scotland.

From the Act of Union, Article 25

"...That all Laws and Statutes in either Kingdom so far as they are contrary to or inconsistent with the Terms of these Articles or any of them shall from and after the Union cease and become void and shall be so declared to be by the respective Parliaments of the said Kingdoms."

The above tells us nothing can be written into English or Scots law that contravenes this Treaty.  It also recognises that the laws predating the Act of Union of England or Scotland cannot be changed.  This is further strengthened later in article 25.

From the Act of Union, Article 25

"...the Government of the Church by Kirk Sessions, Presbyteries, Provincial Synods and General Assemblies all established by the forsaid Acts of Parliament pursuant to the Claim of Right shall Remain and Continue unalterable and that the said Presbyterian Government shall be the only Government of the Church within the Kingdom of Scotland."

Preserving the Act of the Clergy. Freedom of religious worship being the right of a Sovereign Scot now and for all time.

The Act of Union also reserves in Scotland the key provision from which Salvo (salvo.scot) takes its name. Act Salvo Jure Cujuslibet.  

The Scottish MPs who sit on the Westminster benches carry the rights, freedoms and privileges of those laws.  If the people’s mandates are not carried out, the communities of Scotland have the right to gather and agree that their mandate has not been carried out. If that is the case, 'Salvo' can be declared, invoking the Act of Salvo Jure Cujuslibet, reconvening the three estates that once constituted the Scottish government.  That is now referred to as a convention of the Grand Committee of Scotland.  

I will give you an example of where and how that might come into play.  

After a mandate by the returning of a majority of independence-supporting Scottish MPs at Westminster in a plebiscite election, those MPs have the mandate to reconvene the Scottish Grand Committee and declare 'Salvo'.

Because the Scottish people have given the Grand Committee their permission to convene a government in Scotland, the Grand Committee has the right to withdraw from the Act of Union with all that this entails, including instructing the Scottish Customs and Revenue department to pay taxes to a newly convened Scottish Exchequer, setting up a central bank, and issuing a Scottish currency.

Derek Kerr
20/08/23