It is sometimes asserted that the continued existence of "Scots Law" means that the UK Parliament and/or Government can't do this, that, or the other.
It is indeed true that the 1707 Union provided for the continued existence of a separate Scottish legal system, and that this (along with a few other things, such as the status of the Kirk) is "entrenched" and can't be changed by the UK Parliament.
But some folks seem to think that this means that any "UK law" has to be accompanied by a separate "(Scotland)" version, or even (bizarrely) that the UK Parliament can't legislate for Scotland.
Have a look at the Statute Law Database.
Look at the "Legislation Type" box of their search engine at top right.
Select "Act (UK Public General)". Hit "Go".
You will get a screen beginning with:
"Matching legislation
Your Search for: type Act (UK Public General);
Your search produced 3715 results of which 500 are displayed below.
If you do not find the results you are looking for please search again."
So much for there being "no such thing as UK law".
OK?
25 comments:
If you're going to keep busting these ridiculous myths could you at least name and shame the originator of the 'myth' or provide a link, so that we can see what we're up against.
Jim
Err who said there was no UK law ? There's a whole load of it. I think this is a myth about a nationalist myth.
Sorry, this cleary isn't meant to be especially serious or weighty.
I have seen the "no UK law" assertion made several times over the months; I frankly can't be bothered to find one. I'm sure one will turn up!
Observer
I found something for you:
http://www.bailii.org/scot/cases/ScotCS/1953/1953_SC_396.html
Another mythical myth busted then.
What are you going to have a go at next?
Nessie?
The moon landing?
Only Labour can deliver true social justice?
The tories would have done a better job of not regulating the financial markets?
No, I wouldn't class those as "Nat" myths.
Let's see, in the drafts folder at the moment we have:
- "The Union has failed Scotland economically"
- The Nats and their rigged referendum question
- "No need for Trident and CVF"
Plus I need to doparts II, III and IV of the demonstration that there is in fact no historical basis for "distinctive Scottish popular sovereignty".
And then, of course, there is the in-depth version of the "Dr Wilkie / Scotland-UN Committee" hooey about devolution being forced on the UK by the Council of Europe.
So many myths, so little time.
I look forward to reading your support for the Trident abomination.
I doubt I'll pay much attention to the economic arguments though - given that it's much more art than science, so as easy to paint a negative picture as a positive one (I'll grant you many Nationalists are guilty of).
I'm not even sure I know what 'distinctive Scottish popular sovereignty' means, so I'll probably give that a bye too.
As for devolution being forced on the UK by the council of Europe, I'd have thought that was up there with the London bus being found at the South Pole story. The Sunday Sport from days of yore tended to do the best coverage of such stories.
I have never heard of the claim "there is no such thing as British/UK law".
As noted by the Observer, of course there are tonnes of statutes which have effect throughout the UK.
However, the Brit-Nat claim of "British Justice" must also need to be busted. After all there is no "British Justice system" as there is no court in the UK supreme over three legal systems in matters civil and criminal. Unlike the US for example where of course where the Surpeme Court is the ultimate appeal court for all the state judicial systems as well as the federal one.
"It is indeed true that the 1707 Union provided for the continued existence of a separate Scottish legal system, and that this (along with a few other things, such as the status of the Kirk) is "entrenched" and can't be changed by the UK Parliament."
Er, the UK Parliament is sovereign can do what it likes (neutared slightly by EU obligations etc) and can legislate that you are black, one-legged, lesbian cabbage patch commanding views of Snowdonia if it so wishes. It would have the full force of the law and nobody could contradict it until it chose to repeal that law.
Scots law does not recognise "high law" and so nobody could stop the UK Parliament from doing what it likes vis a vis the conditions of the union. It is only respected, it is not sancrosanct. A constitutional catch-22 eh?
You insist on signing up to this situation.
Concerning the kirk, obviously whilst the kirk remained "established", there was of course the infamous Patronage Act which undermined Presbytarian Church government and led to the Disruption.
And of course Parliament allowed for the protection of the legal system to be undermined by allowing the House of Lords to be the ultimate court of civil appeal in Scotland. It took over a hundred years before judicial decisions were being made in Scottish cases on the basis of English law.
As one judge put it during that period:
"If it be the (common) law of England, then why not the law of Scotland?"
Egad, and gadzooks, Aberdonian, I am forced to (partially) uphold a "Nat myth"!
I posted above a link to McCormick vs. Lord Advocate 1953, in which of course Lord Cooper's oft-misinterpreted remarks have nothing to do with "popular sovereignty" but which *do* make the point that the UK Parliament does *not* have unlimited sovereignty, as some things were entrenched in the Acts of Union.
As eventually confirmed by the Church of Scotland Act 1921.
Jim
"I doubt I'll pay much attention to the economic arguments though"
Another thing I thought I'd have a go at is predicting the result of next version of GERS, since all the raw data seems to be available.
However the Treasury files are currently crashing my version of OpenOffice, which is a pity.
Will keep trying.
Smee it came back unfound. Do post again please 1953 is interesting.
The link works for me.
Sorry to bore you, but you were the one to mention McCormick vs LA, weren't you?
As much as I back the MacCormick v HM Advocate ruling/opinion whatever, I am not so sure the Whitehall crowd would. Unfortunately the judgement can be overturned by an act of parliament or a ruling by the House of Lords if it so chose.
Interestingly this weekend/today saw claims about the Scottish government making a stushie over the transfer of the Glasgow airport bomber to English jurisdiction. I am not bothered by it although the opposition parties naturally want to make politicall capital from the claims by making the SNP look petty about jurisdictional niceties (as enshrined apparently in the union legislation) over legal jurisdiction in the face of terror plot.
Surprised SU has not been posting on it.
Strangely, Ian Hamilton on his blog welcomed the transfer on the grounds that it was a cross-border conspiracy triable under a single UK-wide statute and therefore nothing particularly different in Scots or English law in dealing with the bomber. Also he was pleased that London would pick up the tab for his incarcaration etc rather than Scotland.
Now what I am getting at is that the union legislation has not always been observed when it comes to legal niceties. Indeed the "sovereignty" of the Scottish/Irish legal systems in Scotland and Ireland were breached during both world wars.
I mention Ireland as my first example and concerns Roger Casement. As you are probably aware, Casement was an Irish Republican who was tried and hanged for trying to get German help for the Irish rebel cause.
Now despite Casement's offences being to do with Ireland and the fact he was arrested in Ireland (where he landed from a German sub), he was spirited away for trial and execution in London.
Casement demanded that he be tried in Ireland (where I sure a jury in Antrim would have convicted him no problem) as he had been arrested in Ireland and his offences were connected to Ireland. Strangely this demand was dismissed. Why?
I read the court report on the trial. To this demand the commentator - some English QC - snottily it has to be said - claimed that "every educated person knows that the crime of high treason against the United Kingdom can only be tried at the Old Bailey". Wonder how he passed his constitutional law exams?
(Someone should have informed the "Sighthill Martyrs" on this issue as well - since they were tried in Stirling).
Now the dealing of spies during World War I was prescribed under the Defence of the Realm Act of 1914. People accused of spying or abetting the enemy were to be tried and executed if found guilty by the military wherever they were caught in the UK. This meant for example that the first spy executed in world war I, Carl Hans Lody, although he operated out of Edinburgh and was arrested in Dublin, was tried in London by the military and shot in the Tower of London.
Now you are going to say there is one British military and they can do what they like and where they like. Fair enough.
However in World War Two, the Treachery Act of 1940 was introduced to replace much of the Defence of the Realm Act. It also transferred the jurisdiction of civilian spies to the civil authorities.
(Spies of military ranks such as Josef Jacobs were to tried still by the military and dealt with by them).
So here is the nub. During WWII no less than four spies were caught in Scotland. Two had landed in Buckie, one in Glasgow and the other was hanging around Leuchars. Yet although their offences were committed in Scotland, they were not dealt with in Scotland for some strange reason.
Instead they were transferred to English jurisdiction, tried at the Old Bailey and hanged in London. I know it was a national emergency at the time, but obviously the union legislation was not observed in these circumstances.
"Indeed the "sovereignty" of the Scottish/Irish legal systems in Scotland and Ireland were breached during both world wars."
I think the last two words of that sentence provide sufficient explanation.
But then these actions contradicted the union agreements. And they started a precedent that could be invoked----
"But then these actions contradicted the union agreements."
Do they, though?
Have a look at article XIX.
The words "subject to such regulations and alterations..." or similar appear quite a few times...
Er, was not the crux of your argument that the general provisions of the union could not be altered by the UK Parliament.
In effect you are supporting what could be described as a "Henry VIII" clause in that article - i.e. it gives power to the changer to overturn the spirit of the legislation.
"And that no Causes in Scotland be cognoscible by the Courts of Chancery, Queens-Bench, Common-Pleas or any other Court in Westminster-hall And that the said Courts or any other of the like nature after the Unions shall have no power to Cognosce Review or Alter the Acts or Sentences of the Judicatures within Scotland or stop the Execution of the same"
Of course the judges of the Queens/Kings Bench are the High Court judges who presided Assizes and now Crown Courts (for serious cases).
Not my argument; Lord Cooper's!
As far as I can see, law is always a grey area - that's why we need courts.
And Article XIX is a classic. It clearly puts heavy entrenchment around the continued existence of the Scottish legal system, and you've rightly identified the bit that says all "Causes in Scotland" are reserved to the Scottish Courts.
But the waters are muddied by the references to "alterations and regulations", which can be interpreted as meaning that the exact nature of the "entrenchment" is nonetheless changeable, to an (unspecified) extent.
I think a temporary and technical over-ride of Article XIX in the case of treason in wartime is still in keeping with the spirit of the thing.
And with the Casement case it turned the situation into looking like a show-trial (probably less so if it had been held at the Four Courts) and boosting the Republican cause.
The hq of the Irish Air Corp is named after him you know.
"The hq of the Irish Air Corp is named after him you know."
Wow. A very small building, I presume.
Well it used to be an old RAF place so I do not know.
But I suppose that having a small air service - for that is all they need - is better than nothing
Unlike the lying, bludging kiwis who despite having a much larger territory both sea and land to patrol, have reduced their air force dramatically and said the Aussies can look after them.
Bludgers! Especially after a proposal for union between the two nations drawn up by the Aussie parliament was thrown out in one afternoon by Helen Clark - the Queen of the Parasites.
Sorry, but I do not see any fighters here:
http://www.airforce.mil.nz/about-us/aircraft/default.htm
Anyway
However Irish army barracks are pretty big. They are still using Cathal Brugha barracks (formerly Portobello barracks) in Dublin which had at the time of independence the biggest parade ground in the British Empire.
And of course Curragh Camp is still being used. That is where the Irish military academy is. Named after some guy called Pearse I believe.
The scrapping of the Kiwis' Fast Jets was hugely controversial, but understandable.
But no, they're not "bludgers", because they have these:
http://www.airforce.mil.nz/about-us/aircraft/orion.htm
and two of these:
http://www.navy.mil.nz/visit-the-fleet/te-kaha/default.htm
Now if the Irish, who are as dependent on transatlantic seaborne trade as we are, had something similar then I'd be much less inclined to regard them as defence "bludgers", see?
New Zealand is a bigger country by land mass and territorial waters. Of course it needs a bigger air force and navy than the more compact Irish Republic.
Since when was a country's size relevant to this?
New Zealand is dependent on seaborne trade for imports and exports, and makes a significant per capita contribution to defending those sealanes.
So do the UK, US, Canada, France, Germany, the Netherlands, Belgium, Denmark, Norway, Spain, Portugal, Italy, etc etc.
Ireland is equally dependent on seaborne trade, but has never bothered to contribute towards keeping the sealanes open.
(And don't point me at their Naval Service's collection of wee boats, which are about as much use as a chocolate teapot.)
Anyway, enough on Irish bludging.
Post a Comment