The Claim of Right is a standing constitution that remains in force in Scotland today, under treaty and constitutional law. We can and should use it to withdraw from the Union.
Before the Union (and if you don’t know how that happened, see Losing our Independence), Scotland and England had their own parliaments and, crucially, their own laws. Some of these laws – the constitutional ones – survived the Union.
Before the Union, in England, the King was sovereign. He was in charge. But in 1689, that changed, when a Bill transferred sovereignty from the monarch to Parliament. You may have heard of it. It was called the Bill of Rights and the absolute parliamentary sovereignty it granted is still regularly cited and discussed today.
But before the Union in Scotland, things were different. In Scotland, the people were in charge. And this never changed. In fact, in the same year as England was passing its Bill of Rights, we passed our own act, the Claim of Right, which codified what had always been the case in Scotland: that the people were in charge. And if the government or the King did something fundamentally unlawful, like try to take away our civil rights and liberties, the people could get rid of them.
It’s an ancient right. Here’s what the Declaration of Arbroath said on the matter, in 1320:
Yet if [the King] should give up what he has begun, seeking to make us or our kingdom subject to the King of England or the English, we should exert ourselves at once to drive him out as our enemy and a subverter of his own right and ours, and make some other man who was well able to defend us our King;
Ok, but didn’t the Union with England stop all that? No, it didn’t (although the UK government would very much like you to believe it did). It just isn’t true. In fact, it’s quite the reverse. Our Claim of Right continued as a fundamental condition of the Treaty itself, a condition that was accepted by the English parliament and ratified by the Acts of Union in both parliaments.
So, we’re going to state this again, this time in bold:
Scotland’s Claim of Right is a standing constitution that remains in force in Scotland today, under treaty and constitutional law.
Scotland has a way out, an exit. Not just out of the Union but out of a bankrupt political system that rewards the rich and powerful, punishes the poor and the vulnerable and locks the people out of every decision affecting our lives.
What’s more, the Claim of Right says we don’t need to ask anyone for the exit door key. In other words, we don’t have to ask the UK government for a referendum to leave the Union.
Scotland isn’t a colony or some kind of imperial possession. It was, and remains, a sovereign signatory to a Treaty, a Treaty that has a crucial condition: that popular sovereignty remains in Scotland. And it places legal limits on the power of the Crown, ie the UK government. Scottish popular sovereignty makes the UK parliament’s claim to sovereignty unlawful in Scotland.
Our constitution, based on the Claim of Right, still empowers us to reject any law, any policy or any government which goes against the expressed will of the people or imposes absolute rule on our nation where it has no such authority.
If the Claim of Right is deemed breached or violated, then the compact or agreement between the government and the people is at an end, and power is returned to the people.
And it has been breached, on numerous occasions over the past 300-odd years, the most recent major breach being in 2016 when Scotland was dragged out of the EU against the explicit wishes of the Scottish people. There are many other examples of breaches.
The route to restoring our independence does not lie with repeatedly asking – begging, some would say – the UK government for some Section 30 order to give us permission to hold an independence referendum. It lies with the re-establishment of The Convention of the Estates – the assemblies of the communities – that once flourished in Scotland.
To gain our freedom, we need to begin the process of declaring the ‘invasion’ of our constitution unlawful and to begin replacing an unconstitutional government and power system with the best expression of self-government that we can imagine.
We can and will tell the world that we, the people of Scotland, have decided that the Union is over and that we will revert to self-government – much like that enjoyed by most countries in this world.