The Claim of Right Act of 1689 means that the Scottish people retain the right to prohibit government actions or legislation which compromise their civil rights and freedoms. This was incorporated in the Act of Union,1707.
"The Treaty [of 1707] itself is conditional on Scotland retaining its own distinctive constitution, contained and described in the Claim of Right Act of 1689. This condition means that the Scottish people retain the right to prohibit government actions or legislation which compromise their civil rights and freedoms. This is part of the ‘right’ referred to in the Claim of Right and enshrined in Scots law by the Act ‘salve jure cujuslibet’ of 1663, which allowed any Scot to challenge parliamentary legislation which infringed their civil liberties – and how refreshing is that kind of thinking even today, never mind the seventeenth century. And still necessary too, even in our supposedly more democratic times, when governments aye have a tendency to take forward legislation which all too often is intended to oppress the people rather than serve them, as Nelson Mandela once said.
It means, above all, that the Scots retain the right, even today, to remove a governing authority when it no longer functions in the interest of the Scottish people, this being the main purpose of the Convention of the Estates (the assemblies of the communities).
The ability to depose a monarch and/or remove an unwanted government remains arguably the central basis and purpose of the Claim of Right, vesting sovereignty firmly in the hands of the Scottish people themselves, rather than any shower of mankit elites in Westminster or Holyrood. Hence, constitutionally, it is the Claim of Right whit maks us Scots unalik maist ither naitions! Our constitutional reality is therefore diametrically opposed to the English doctrine of parliamentary sovereignty, the latter underpinning England’s constitution, but never Scotland’s.
The Scottish Claim of Right was never extinguished by the Treaty of Union; rather, the treaty was and remains conditional upon the continuance of the Claim of Right in Scotland. Westminster, which is not a party to the Treaty of Union but merely an outcome of it, cannot itself alter the original conditions of the treaty, this may only be done through agreement of the respective signatory parties – Scotland and England.
Rather than a case of England’s parliament subsuming Scotland, the treaty established and states as such that a new parliament was created as the First Parliament of Great Britain. Westminster is and remains a joint legislature and governing administration established by treaty and is therefore a consequence of a treaty-based alliance between two sovereign nations, each still holding and retaining separate and distinctive constitutions. In other words, the two sovereign signatory party nations to the Treaty of Union continue to exist, as does the continuation of their quite different constitutions, the respect of which remains a condition of that agreement, failing which there can be no ‘union’.
The real problem here is that Westminster has and continues to pay lip service to the reality of Scottish sovereignty, while treating Scotland as subject to England’s constitutional parliamentary sovereignty, and hence dismissing Scotland as a distinct sovereign entity with its own constitutional rights. England, and it has to be said also the Scottish elites, has disregarded the Claim of Right as enshrined in the treaty and ignores the fact that ultimate power in Scotland rests with the sovereign Scottish people, a power which they have the right to exercise through the Convention of the Estates as the assembly of all the communities of Scotland.
Scotland’s list of grievances are many, as reflected in numerous violations to the Treaty of Union, an enforced Brexit merely being the latest in a long list. Moreover, the electorate’s instructions conveyed to Scotland’s politicians in favour of independence, repeatedly given by the people, have been disrespected by the SNP at both Westminster and Holyrood, which under the Claim of Right serves as further violation of the peoples’ liberty and possible grounds for forfeiture of the right to govern.
As Sara Salyers explains in this excellent analysis of Scotland’s Claim of Right, the Convention of the Estates must now be re-convened as what it is - the representation and assertion of ultimate, sovereign power of the people of Scotland – its principle function being to prevent Scotland from being subject to ony arbitrary despotick pouer, or to unjust laws, and to withdraw Scotland from this mankit Treaty of Union or any other treaty that may no longer be in Scotland’s interest."
Professor Alf Baird