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NEW EVIDENCE TO SUPPORT THE RIGHT OF SHETLAND TO GREATER AUTONOMY.
When we started this research, our focus was purely on udal law. That changed as we got a better grip of the situation. While udal law is still an important facet, the emphasis has now shifted to the deeply flawed legal and constitutional position.
Historical differences between the island groups also make a difference, with the result that we have decided to concentrate our attention on Shetland - in the earnest hope that Orkney will follow.
Shetland has a unique history. While most places celebrate their history, Shetland's is so deeply embarrassing to those in authority that a concerted attempt has been made to bury it. The strength of Shetland's position is a thorn in the side of any UK or Scottish administration.
Here are some facts that may surprise you:
- Neither Shetland nor Orkney has ever been officially incorporated into either Scotland or the UK.
- There is no legal basis for the islands being a part of the EU.
- The UK government has never proved a legitimate right to the seabed around Shetland and Orkney.
- The Crown Estates derives its whole authority over the seabed around Shetland and Orkney from the Salmon Farmers case, the verdict of which is wide open to question.
The fascinating side of Shetland and Orkney's history that makes it completely unique in the world is the 1468/69 pawning of the islands by King Christian of Denmark to King James III of Scotland. King Christian had agreed to provide a 60,000 florins dowry on the occasion of the marriage of his daughter to the Scots King. When he was unable to come up with the whole amount, his novel solution was to pawn first Orkney, then Shetland to King James. The pawning had no time limit and has never been revoked or legally challenged - indeed, as late as 1907, Lord Johnson stated that 'nothing has occurred since 1468 which amounts to a general acceptance in Orkney of the Scots feudal system'.
The effect of the 1468/69 dowry arrangements meant that Shetland and Orkney were held in trust by the Scottish Crown until redeemed. In 1603 this duty passed to the British Crown with the Union of the Crowns. The pawning was an international treaty which could not be altered without the agreement of both sides. Denmark/Norway have always protested that sovereignty was never surrendered to Scotland.
It is important to understand what was actually being pawned. Under udal law there is no concept of ultimate ownership by the Crown and the islands were pawned in that condition. So, James III was holding in trust (because it was pawned) a property in which he could never claim ownership (because the pawning had no time limit and because, under udal law, ultimate ownership by the Crown does not exist and therefore could not have been transferred by King Christian). Those aspects of sovereignty which imply ultimate ownership could never apply here. The agreement could only confer a kind of temporary sovereignty for administration purposes - to apply until the pawning was redeemed.
In 1470, James Exchanged Ravenscraig Castle for the Earldom of Orkney. The Earl of Orkney was subject to the Danish crown, so this put James in the difficult position of technically being a subject of the King of Denmark. In 1471 he annexed the Earldom. This may have been an attempt to legitimise his position, but it is difficult to see how such a unilateral declaration could hold water. In any case, the annexation could only have applied to the lands of the Earldom - only a part of Orkney.
During the following two hundred years there were repeated disponements and annexations. There seems to have been an assumption that such agreements could cover the whole of the islands, but this could never have been the case – bearing in mind the fact that the islands were not owned by the Crown.
All this meant that the islands were a hot potato for succeeding monarchs. When they were granted out to various needy courtiers as a personal favour it was in the knowledge that it was a questionable deal without legality. Contrast this with the Western Isles, where there had been a legitimate change of ownership and proper incorporation into the realm - no such shenanigans happened there.
In 1667 the Peace and Treaty of Breda confirms that the pawning of the islands is 'unprescribed and imprescribable'. In other words, the pawned status has not been, and cannot be changed.
The next document is of fundamental importance, but there is very scant reference to it in any of the historical literature. Its significance is paramount, but one could be forgiven for thinking that there has been an attempt to hide its existence.
In 1669, although ignoring the pawned condition of the islands, Charles II made an attempt to remedy the situation with his Act of Annexation, in which he says "It is not only fit in order to his majesty's interests, but will be the great advantage of his Majesty's subjects dwelling there, that without interposing any other Lord or superior betwixt his Majesty and them, they should have an immediate dependence upon his Majesty and his Officers" and "ordains the same to be of full force strength, and effect in all time coming" (a phrase he uses six times in the document). He goes on: "And farther it is Declared that if any general act of Dissolution of his Majesty's property shall be made at any time hereafter; the said Lordship and Earldom ………… shall not be understood to fall under the same" and that any future disponement or act of Parliament concerning the islands "shall from the beginning and in all time coming be void and null and of no effect"
Charles II clearly understood that the islands were his personal responsibility and that the repeated disponements to courtiers and annexations back to the Crown over the previous 200 years had been illegal. He makes it very clear that this close relationship with the Crown, to the exclusion of Parliament, should continue 'for all time coming'. Apart from recognising the pawned status, the legal situation as it had existed in 1469 was thus more or less restored in 1669 and, although the term had yet to be been coined, the islands were declared Crown Dependencies.
Only 38 years later the terms of the 1669 Act were directly contravened in the 1707 Act of Union (joining Scotland to England and Wales), from which Shetland and Orkney emerge magically as counties of Scotland. This has been the official fiction ever since - is it any wonder that the authorities are so coy about this document?
The Legal Situation:
Since the 1669 Act of Annexation, nothing has been done in legal terms to change Shetland and Orkney's Crown Dependency status. The Isle of Man and the Channel Islands are examples of Crown Dependencies. Shetland and Orkney probably have a better claim to that status than The Isle of Man!
The pawning put the islands in a special relationship with the Crown. In international law there are only three ways by which the status of a state can be changed. They are: Conquest, Cession, or Terrae Nullius. None of these apply to Shetland and Orkney, therefore there is a strong argument that their original status has never been changed and that legally, the islands are still held in trust by the Crown. If the people of Shetland want it, little stands in the way of their achieving more autonomy.
Even today the Crown makes no pretence of ultimate ownership of either the land or the foreshore of Shetland. That very fact indicates a tacit acceptance that Shetland is covered by a different kind of sovereignty than that of the rest of the UK. Whichever way that sovereignty is defined, it cannot include ownership.
With regard to udal law, this was the first legal system of the islands, which applied from about 900AD to the present day. Until 1965 the legal position was that udal law took precedence, but in that year a single Judge, Lord Hunter made a judgement that turned the whole thing round. Since that verdict, feudal law is held to apply unless affected by udal law. A single judge, without any legislation on the subject, was deemed able to change the whole system of law here. A similar verdict in a second case gave the Crown Estates their authority here.
The Crown Estates:
The Crown Estates derive their entire authority from the decision in the Salmon Farmers Case in 1990, which was decided on essentially feudal concepts, not applicable here. (The verdict is acknowledged by many legal experts to be open to challenge). Previously the Crown Estates had argued that in Scotland their right was a feudal right of property (Fairlie Yacht Slip Case). Not claiming the same right here was tacit acceptance of a different status. As they could not argue the same case in Shetland, they resorted to the Royal Prerogative. At that time the prerogative had not been defined (that only happened in April 2004), but it is an irrelevance since nothing in that definition could confer property rights, which are a basic requirement before they can charge rents. Just the same as anyone else, the Crown has to prove a right of ownership. The problem for the Crown is that they have never acquired a legitimate title - no change has ever been made to the pawned status, so the islands can only be held in trust by the Crown.
How the law applies in England:
There is considerable evidence to show that, in English law, the foreshore is regarded as part of the seabed.
It is also clear that in the rest of the UK, ultimate ownership of the seabed around the realm proceeds in a logical fashion:
- The King was first presumed to own the land (a basic tenet of the feudal system).
- When the foreshore became of commercial interest it was added to the realm.
- Again, when there began to be commercial interest in the seabed (for instance, mining extending under it in Cornwall and North-east England, it too was added to the realm.
This logical sequence was vividly illustrated in 1955 when the British government annexed Rockall. The aim was to secure the 200-mile limit surrounding the rock. The rock itself is worthless, but ownership of the sea and seabed flows from ownership of the land. There was never any question of annexing the area of sea and seabed without the rock itself.
In the sixties the government appropriated the seabed around the UK. As there was the forecast of North Sea oil discovery it's not hard to see why. While they were perfectly within their rights in the rest of the UK, they had no such right in Shetland's waters because ownership had never been acquired by the Crown.
The difference in Shetland:
In Shetland the Crown makes no pretence of ultimate ownership of either the land or the foreshore - yet by some magic yet to be explained they claim the seabed.
Lord Kinnear, in Smith v. Lerwick Harbour Trustees said about the Crown's property rights: "If the solum of Shetland as a whole is not originally the property of the Crown, I know of no authority, and can see no reason, for holding (saying) that part of it which is called the foreshore is Crown Property". This statement could equally well be applied to the seabed, especially since the foreshore is regarded as part of the seabed in English law.
In 1907 Lord Johnson stated: "nothing has occurred since 1468 which amounts to a general acceptance in Orkney (and by inference, Shetland) of the Scots Feudal System". As far as we are aware, still nothing has occurred.
To those who say that all this is in the past and has no more relevance, there are cases in the Channel Islands and the Isle of Man where their status was upheld on evidence much older and less well-documented than Shetland's.
In the case of the Channel Islands, in 1860 the Royal Commissioners decided that the ancient laws of the islands as described in the (no longer existing) Constitutions of King John in 1215 were authentic. This no-longer existing document provides the basis of their legal system.
In the Isle of Man, documents dating back to 1405 were crucial evidence in a land case in 1982.
In short, Shetland's legal and constitutional position is a mess, but a mess that has every hope of being resolved if efforts by SOUL are successful.
We want to form links with other groups and people interested in Udal Law and constitutional issues. Please
We are also building a collection of documents in support of our case. Please contact us if you have access to any - no matter what country.
S.O.U.L. is a non-profit, non-political voluntary organisation working on behalf of the people of Shetland and Orkney. This website is intended to stimulate open discussion and will inevitably change as we find out more.