Scottish Independence Debate / Referendum: Is Stuart Hill right?
IN our efforts to find out how Shetland folk feel about the upcoming referendum on Scottish independence, regular contributor to our letters and comment pages, John Tulloch, is offering a perhaps challenging and controversial view of the northern isles’ history and its role in the referendum debate.
The constitutional position of Orkney and Shetland in the UK is unique, not simply because it involved an historic pawning arrangement but because it created an unresolved constitutional conundrum. In particular, it cannot be demonstrated that Scotland/UK ever acquired legal (‘de jure’) sovereignty over the isles.
It’s said “possession is 9/10ths of the law” and there is undoubtedly some truth in that. In practical terms, Scotland/UK has ‘de facto’ sovereignty (i.e by ‘overwhelming presence’), although it took over 140 years and the Union of the Crowns before they dared establish even that by destroying the old Norwegian Lawbook and imposing Scottish Law around 1611.
If Scotland/UK has legal sovereignty there must be a date on which it was transferred and as yet, no historian has been able to provide one.
Without legal (‘de jure’) ‘sovereignty, law courts cannot have lawful jurisdiction and the purpose of Stuart Hill’s colourful court campaign was to force the Scottish authorities to take him to court where the weakness of the court’s jurisdiction could be exposed for all to see.
Some argue “nothing can be done without the support of the inhabitants” and in this day and age, that’s true. Within that statement, however, is a tacit acknowledgement that ‘with the inhabitants’ support’, something CAN be done.
Without knowledge of the historical and legal facts the ‘inhabitants’ will continue to plod along, some contentedly, ‘never sayin’ Clow’, some complaining about everything from ‘Da Cooncil’ to ‘Sooth-moothers’ and all believing that ‘nothing can be done’. Stuart Hill, among others, is attempting to fill that knowledge vacuum.
“But anyway, it’s all in the dim and distant past,… isn’t it?” No, Udal Law is still upheld under Scottish Law where it still exists, although there are recent examples of it being brushed aside.
Are we relaxed, for example, with:
- The removal of the St. Ninian’s Isle Treasure to Edinburgh?
- The role of the Crown Estates in fish farming?
- Extraction of rent by Crown Estates for laying essential cables on the sea bed?
All of these appear to flout the principles of Udal Law and we haven’t even mentioned oil and gas.
The Falkland Islands government with their now greatly-increased population of 3,000 has control of tax revenues from oil developments in their waters within a 200-mile limit.
Why do Shetland and Orkney not have similar powers? You may well ask.
SIC, by contrast, is tiptoeing around the corridors of Westminster and Holyrood, bowing and scraping; begging, unctuously, for a few crumbs from people who, if Stuart Hill is right, have no right to apportion what they do not own.
I say ‘IF he’s right’ because we don’t know for sure. We do know he has released a book, Stolen Isles (http://www.stolenisles.com) on the progress of his project to date and that he has invested a considerable amount of his own time, trouble and possibly money, to take his campaign as far as he has done.
Personally, I had long forgotten the old stories of my childhood until Stuart came along and started rattling the authorities ‘bars’. As a result I became interested and have since done a fair bit of ‘spullyin’ among da aald paepers’ myself; sufficient, at least, to realise that his arguments require to be addressed.
Plenty of people have queued up to pillory him and not one of them has yet knocked down his argument. Those who would deny his claims should read Stolen Isles and tell us why they think his thesis is flawed.
Simply proclaiming “it’s pure fiction” doesn’t cut the mustard.
It’s important not to get too uptight about things like the “stated aims” of Hill’s campaign props, Forvik, the Sovereign Nation of Shetland and the means by which he managed to corner the authorities into taking him to court. These are ‘a bridge too far’ for many people’s political and social ‘comfort zones’ but they are incidental to his main point: Shetland and Orkney have been ‘stolen’ from their peoples. The question we should focus on is: ‘Is he right?’
So we should read Stolen Isles and get to understand what he’s going on about because, even if he can never make his case stand in UK courts, the moral case is unassailable and at worst, we’ll learn a lot about the historical events and legal quirks of Shetland’s past, many of which are directly relevant in the present day.
As retired judge Geoffrey Care says in the Foreword of Stolen Isles, this study, embracing both legal and historical aspects of the northern isles’ constitutional position, is probably itself unique.
Sure, Stuart Hill is a maverick, sure, he’s (wonderfully) eccentric. And the more we support his campaign, the more we support SIC in their current negotiations with the Scottish and UK governments and encourage them to demand more meaningful concessions of local autonomy.
We Shetlanders need to come to terms with and master our own deep-seated ‘learned helplessness’, acquired over five centuries of down-treading by ‘lairds’ and take hold of the reins which are rightfully our own.
What’s your view on the issue? We would like to hear from you. Please don’t hesitate to participate in the comment section below or get in touch directly via news@shetnews.co.uk
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