S.O.U.L. - Shetland & Orkney Udal Law
Posted 14 April 2006 - 10:25 AM
An open letter to the councillors of the SIC
Here's a link to the Udal Law website - http://www.udallaw.com/
What's your opinions on the Udal Law debate? (I can start a poll if anyone can think of suitable criteria)
Posted 14 April 2006 - 11:16 AM
I'm interested to hear what other forum users think
Posted 14 April 2006 - 01:17 PM
Not being particularly savvy with the finer points of Feudal Law, I have to say I've no idea wether what he's proposing is realistic.
However, I think if it did turn out to be a possible course of action, I might well be behind such a move, in principal at least.
I'll keep an open mind until more information becomes available.
Posted 14 April 2006 - 02:11 PM
Professor John Grant outlined the position in 1978 in J Grant The Shetland Report: A Constitutional Study (1978) Nevis Institute p 183:
'Territory not formerly subject to the sovereignty of a State (terra nullius) can be acquired by the process of occupation (occupatio); territory formerly subject to the sovereignty of a State can be acquired by another State through the process of prescription. In practice, it is far from easy to draw a clear distinction between occupatio and acquisitive prescription. Thus, in two of the leading cases, the Island of Palmas Case and the Eastern Greenland Case, the tribunals avoided using these two categories, and appear to have reached their decisions in each case on the basis of which of two competing sovereigns had the better title.
The conditions that satisfy effective occupation of territory are markedly similar to those for acquisitive prescription. Stated in broad terms, these are that there must be peaceful, open, continuous and effective exercise of sovereignty over the territory, coupled with the clear and unequivocal intention (animus) to act as sovereign. The appreciation of whether these conditions are satisfied in relation to a particular piece of territory is difficult, especially where there are competing claimants; and it is made no easier by the requirement that claims are to be judged according to the law contemporaneous with the acts of sovereignty (so-called inter-temporal law)...
At the present time, and indeed for some considerable time past, the United Kingdom has exercised full sovereign powers over Shetland: the islands are under the British Crown, governed by the Government of the United Kingdom, bound by the statutes made at Westminster, subject to the Scottish legal system and system of local government and the United Kingdom administrative network. There is no clearer way to demonstrate the completeness of United Kingdom sovereignty over Shetland than to pose the question: what sovereign powers are exercised in Scandinavia in respect of the islands?
The Scottish, and later United Kingdom, title to Shetland derives from the exercise of a full range of governmental functions over a large number of years without interruption'.
Posted 14 April 2006 - 03:43 PM
Original .pdf file address
Identities, Boundaries and Voters - Joy Squires - University of Wolverhampton - â€˜Re-visiting â€œInternal Colonialismâ€ â€“ The Case of Shetlandâ€™
Some twenty years ago, Michael Hechter (1975) proposed that internal colonialism constituted the most plausible explanation for the development of nationalist sentiment in the Celtic fringe of Britain. Hechterâ€™s proposition unleashed a fervent and lengthy debate about the causes and nature of nationalism in Scotland, which left him roundly condemned for having misunderstood and misrepresented Scotlandâ€™s historical and economic development within Britain. (1)
Hechterâ€™s critics focused on Scotlandâ€™s industrialisation and modernisation process in the Central belt. Scant regard was paid to the periphery of Scotland, where economic, social and political experience has been markedly different to that of the Lowlands. Criticism of the cultural division of labour as the key element in the theory of internal colonialism was particularly trenchant, and the concept was generally dismissed as inappropriate to Scotland. However, an examination of the economic and political development of the remote periphery of Scotland, namely Shetland, reveals that the theory of internal colonialism and the cultural division of labour offers a highly plausible explanation for the growth of demands for greater autonomy and the politicisation of those demands through the Shetland Movement.
Hechter summarizes internal colonialism thus:
â€˜Commerce and trade among members of the periphery tend to be monopolised by the core. Credit is similarly monopolised. When commercial prospects emerge, bankers, managers and entrepreneurs tend to be recruited from the core ... Economic dependence is reinforced through juridical, political and military measures ... Typically there is a great migration and mobility of peripheral workers.â€™ (1975, p.33)
Hechterâ€™s assumption is that the periphery (Wales, Scotland and Ireland) suffers the disadvantages of uneven economic development, reinforced by the colonial relationship perpetuated by the metropolitan core (England). This relationship essentially precludes the exercise of economic, social and political power by members of the periphery, by virtue of their indigenous status. Economic development is typically either confined to basic, low value-added sectors or, where the periphery is rich in primary resources, is encouraged to the benefit of the core. In both situations the metropolitan core controls development and a division of labour, based on cultural distinctiveness, becomes operative. Eventually, exploitation and discrimination lead to a greater awareness of cultural differences between periphery and core, a growing sense of identity amongst members of the periphery and to the conclusion that only self-determination can break the exploitative colonial relationship.
Critics of Hechter point to a number of failings in his analysis, at least with regard to Scotland. Nairn (1977) and Brand (1985) argue persuasively that Hechter seems not to have noticed that Scotland has, for many centuries, produced its own economic, social and politicalelites operating within the context of a separate legal, religious and educational framework. Theseelites developed a dynamic, prosperous economy based on Scottish capital and Scottish entrepreneurial flair. Scotland flourished as part of the British Empire and Scotsmen made important contributions to the development of the technology that was to underpin Britainâ€™s dominant economic position in the world. As Nairn reminds us, Scotland
â€˜is an old industrial society ... with its own cities and native capitalist classâ€™. [For many years it developed] â€˜at approximately the same rate and with the same cadences as the larger society it was linked to, industrial England.â€™ (1977, p.204).
Scotlandâ€™s social-class structure was not based on a cultural division of labour as Hechter suggests, but rather it evolved from the development of capitalism within the Scottish context, linked to English capitalism but not dominated by it. (Nairn (1977), p.207, Brand (1985), p.275). It was only when industrial England experienced economic decline and the Scottish middle class recognised that Scotland could benefit substantially from the discovery of North Sea oil that the political relationship with England came to be viewed as detrimental. There was, then, no cultural division of labour in Scotland, and Scotland was not in a colonial relationship with England. As an explanation for the rise of nationalist sentiment in Scotland the theory of internal colonialism was considered interesting, but inadequate.(Kellas(1991)p.40).
A common feature of the criticism levelled against Hechter is that he failed to take account of Scotlandâ€™s separate institutions and indigenous capitalist development. But, in condemning Hechter, his critics fail to recognise the wide variations of historical experience, economic development and political outlook of Scotlandâ€™s own periphery.(2) Broadly speaking, over centuries Scotlandâ€™s periphery suffered the ravages of uneven development. This manifested itself principally in terms of poverty, depopulation, truncated economic growth and, increasingly, a culture of dependency vis `a vis Scotlandâ€™s core. Within Scotlandâ€™s periphery, Scotland was viewed as the â€˜coloniserâ€™, exploiting human and natural resources to fuel economic growth at the core. The peripheral â€˜coloniesâ€™ of Scotland had little influence over their own destiny. Their land was bought, sold and managed by distant landlords who held political and economic power in Scotland and at Westminster. A cultural division of labour obtained. With few exceptions, those who lived on the periphery of Scotland were denied access to positions of influence.
Shetland provides an interesting example of internal colonialism within Scotland. Shetland was pawned to Scotland by Christian I of Norway in 1469 as part payment of his daughterâ€™s dowry on her marriage to James III of Scotland. Under Norse law, Shetland enjoyed a long tradition of local democracy which continued until 1611 when the old Shetland Law Book disappeared and Scottish law became predominant. Under Norse law, Shetlanders themselves, through an elected Lawman and in an annual assembly of freeholders, debated, interpreted and administered Shetland Law, with minimal interference from outside. (Moberg & Schei (1988) p163-164). From the time of the Stewart Earls, four sheriff-deputies were appointed to oversee the operation of Scottish legal practice, thereby removing any trace of local democracy until 1890 when the Local Government (Scotland) Act established Zetland County Council. Westminster, at least in the eyes of many Shetlanders, offered some protection against the exploitative Scots, a feeling considerably strengthened by the passing of the Liberal Governmentâ€™s Croftersâ€™ Act in 1886. This Act went some way to restoring the security of Shetlandâ€™s many crofters following the disaster of the Clearances carried out by Scottish lairds. Scotland perpetrated the injustices, Westminster was seen as an ally. Scotland held sway in Shetland in terms of law, education and religious matters. Scottishelites decided on infrastructural investment, agricultural subsidies, support for the fishing industry and, crucially, transport levies which added to the cost of Shetlandâ€™s exports and imports. By 1962, Zetland County Council, increasingly concerned at Shetlandâ€™s deteriorating economic situation, sent a delegation to Faroe to investigate the reasons for Faroese economic success. The delegation concluded that the reason for its success was â€˜the right and power of the Faroese to manage their own affairs, and the application of special measures to special problemsâ€™ (Gronneberg(1976)p.4).
Zetland County Council made representations to the Secretary of State for Scotland requesting greater autonomy of decision making for Shetland. Two responses were forthcoming, both of which dismayed Shetlanders. First, from the mid-1960s, Shetlandâ€™s fire, police and water services were merged with the North of Scotland. Second, the Wheatley Commission on local government reform proposed merging Shetlandâ€™s administration into the geographically vast Highland Region to be run from Inverness. The Scottish Office had not only not listened, they were proposing to exacerbate the problem by removing more control to the Scottish mainland, leaving Shetland increasingly at the mercy of remote, unsympathetic decision makers. Interestingly, frustration at these proposals did not take on a overtly political manifestation at this stage. Rather, the Scottish â€˜coloniserâ€™ was by-passed and appeals were made directly to Westminster on the basis of Shetlandâ€™s interests not being well represented by Scotland. This suited Westminster, given that the debate on local government reform coincided with the discovery of oil in Shetlandâ€™s offshore waters. Oil promised to be an economic lifeline for both Shetland and Westminster, so mutual cooperation was of benefit to both. The result was the Zetland County Council Act of 1974 which not only gave Shetland the powers of a single, all-purpose local authority but also the power to enter into virtual partnership with the oil industry, exercising considerable control over oil-related development. In direct financial terms, this enabled Shetland to negotiate a â€˜disturbanceâ€™ payment of Â£5 million from the oil companies, plus harbour dues on supertankers loading up at Sullom Voe and royalties on oil pumped through the complex (Gronneberg 1976, p.24).
That Shetland embraced the oil industry enthusiastically is hardly surprising. Economically, oil has been of inestimable value to Shetland. Massive job creation (3), high wages and the stimulus given to retailing and the services sector more generally have kept unemployment much lower than on the Scottish mainland. Home ownership, at 67.5%, is amongst the highest in Scotland (Shetland in Statistics 1994). Average household income in 1992 placed Shetland 29th out of the 72 constituencies in Scotland (Butler & Kavanagh,(1992), p.311). Since the late 1970s, Shetland has witnessed unprecedented expansion of its infrastructure. Road, sea and air transport have developed extensively, so that even the remotest parts are accessible on a daily basis and in virtually all weather conditions. Welfare and leisure provision has expanded throughout the Islands. All these developments have helped regenerate the smaller, rural communities in Shetland so that Lerwick, the capital, although greatly dominant in terms of population, does not dominate in terms of social, cultural and welfare provision.(4)
From the beginning, the Shetland Islands Council (SIC),(5) realised that the reserves of oil in the North Sea were limited, and that Shetland would have to take advantage of the years of plenty to guard against the lean years which would inevitably follow the decline in oil production. There was the recognition that, inevitably, post-oil, Shetland would have to fall back on fishing and agriculture as the mainstay of the economy. To this end, from the late 1970s on, the SIC has made available development loans for the purchase of fishing vessels, new fishing initiatives such as Salmon farming , fish processing, farm improvements and traditional â€˜cottageâ€™ industries such as knitting.(6)
Rapid economic development took place against a backdrop of diminishing indigenous political control. The resurgence of the Scottish National Party in the 1970s and its influence on the political agenda of the then Labour government, caused consternation in Shetland. A devolved Scotland, as proposed by the Scotland Bill, posed a direct threat to Shetlandâ€™s well-being.
â€˜The concern in the 1970s in Shetland, was that the Scottish Parliament would be dominated by the Central Belt of Scotland, whose representatives would not be sympathetic to Shetlandâ€™s aspirations, and would, in particular, want to divert resources from Shetland to the Central Belt authorities.â€™(7)
Again, Scotland was seen in terms of being predatory, exploitativeand unsympathetic.( 8 ) Again, an appeal was made direct to Westminster by the SIC. The Liberal Member for Orkney and Shetland, Jo Grimond, backed an amendment to the Scotland Bill ensuring that Shetlandâ€™s vote in the 1979 referendum would be counted separately and, in the event of a negative response, Shetland excluded from the devolution plans should they be approved by the mainland. Despite the opposition of the Labour government and the hostility of the SNP, the Grimond amendment was carried. On a turnout of 50.3%, 73% voted â€˜noâ€™ to devolution for Scotland, a clear indication that Shetland remained suspicious of the relationship with Scotland.(9)
Prior to the discovery of oil, Shetland was typical of Hechterâ€™s internal colony, exhibiting economic dependence, outward migration (10) and a cultural division of labour whereby Shetlanders, although having expressed the wish to exercise greater control over their affairs as early as 1962, were increasingly denied a larger say. After the discovery of oil, Shetland was typical of an internal colony in being rich in natural resources much coveted by the core. The cultural division of labour was heightened by the influx of (mostly Scottish) managerial and professionalelites connected with the oil-industry and the commercial activity surrounding it. Although opportunities existed for Shetlanders to participate in the financial benefits of oil, pleas for opportunities to participate in deciding Shetlandâ€™s future were met by the centralising tendencies of the post-1979 Conservative government and EEC fisheries policies which were deemed positively detrimental to the traditional backbone of the Shetland economy.(11) For Hechter, these would be typical circumstances in which â€˜nationalistâ€™ sentiment would emerge. In Shetlandâ€™s case, this took the form of the Shetland Movement, originally a cross-party pressure group, later a fully fledged political party able to attract a membership of over 500 and elect a group of SIC councillors seven-strong.(12)
Intensive lobbying, together with a progressive trend in favour of devolution on the part of the Labour and Liberal Democrat parties, led the Shetland Movement to play an important part in the deliberations of the Scottish Constitutional Convention. â€˜Key Proposals for Scotlandâ€™s Parliamentâ€™ published in October 1995, specifically recognises that
â€˜the geographical and historical circumstances of island communities warrant distinctive constitutional consideration ... Applying the principle of subsidiarity will give the Islands Councils the opportunity and responsibility to provide the services and carry out the functions appropriate to their communities ... the Scottish Parliament will take their needs into account in formulating its legislation and policy.â€™ (13)
The Shetland Movement is content with this state of affairs. â€˜With general support for Shetlandâ€™s aspirations evident within the Convention, we have felt no need to be outwith the scope of the Convention.â€™(14) Even though the SNP has revised its position and now recognises the right to autonomy of Shetland, it is interesting to note that the SNPâ€™s electoral support in Orkney and Shetland in 1992 was 11.2%, compared to an average 21.5% for Scotland as a whole (Butler & Kavanagh, 1992, p.286) This could be taken as an indication that Shetland still harbours doubts about the intentions of mainland Scotland and seeks the â€˜shelterâ€™ of a continuing relationship with Westminster, through the devolution plans of the Scottish Constitutional Convention.
Other explanations could be sought to account for the growth of nationalist sentiment within Shetland. Kellas (1991, p.64) has argued that the upsurge in nationalism in Scotland can be explained by the imbalance between de facto and de jure power at a time when Scotland was disenfranchised politically but growing in economic and cultural strength. This could apply to Shetland in that the imbalance between de facto economic power and de jure political power is marked. It does not, however, explain why Shetland should be seeking greater autonomy as early as 1962, when the economy was far from strong and oil a very distant prospect. Rokkan & Urwin (1983 Chapter 4) suggest that distance, difference and dependence vis-`a-vis the central state and its dominant political culture can account for the â€˜territorial strainâ€™ which leads to a â€˜politicisation of peripheral predicamentsâ€™. The plausibility of this explanation is undermined by the fact that, since the mid-1980s, Shetland has made a positive net contribution to the Government exchequer of over Â£50 million per year, in addition to the oil revenues from Sullom Voe.(15) Shetlandâ€™s dependence is now political rather than economic and largely created by a centralising Government.(16) Difference remains important, though not in the cultural terms implied by Rokkan & Urwin (1983), Watson (1990) and Brand (1985), for example. Shetland has a distinctive living culture, but it is not threatened by the encroachment of a dominant core culture. Shetland is a remote, island community which does not fear losing its identity so much as any control it might exercise over its future economic well-being.
Hechterâ€™s theory of internal colonialism has the merit of offering a more complete explanation of Shetlandâ€™s situation. The colonial relationship, primarily between Scotland and Shetland, removed local democracy as bequeathed by Norse law, exploited land and livelihoods during the Clearances and presided over the emigration of nearly half the population in the twentieth century. It established a cultural division of Labour with Scottishelites dominating the legal, educational and religious (17) structures in Shetland, as in mainland Scotland. After the discovery of oil, the uneven nature of the relationship, and the cultural division of labour became more entrenched, with mainly Scottishelites controlling economic decision-making, and the Scottish Office acting as a bureaucratic impediment to the creation of greater economic security. The resulting politicisation of demands for autonomy match the internal colonialism scenario. Whilst Hechterâ€™s theory presents genuine difficulties in the case of mainland Scotland, it would seem to bear scrutiny in the case of Shetland.
1 - Page (1978) offers a persuasive critique of Hechterâ€™s methodology.
2 - Nairn (1977) does allude briefly to under-development in the context of the Highlands of Scotland, p.203.
3 - 8000 jobs, mainly unskilled, were created between 1976 and 1980 (Shetland Economic Review, 1993).
4 - At the time of the 1991 census, 22522 people were resident in Shetland, 7220 of them in Lerwick (Shetland in Statistics, 1994).
5 - Created 15 May 1975.
6 - Shetland now has the most modern pelagic fleet in Britain (Shetland Times, 19/1/96). Salmon farming had an output value of Â£33 million in 1992, exceeding that of pelagic and demersal fishing by Â£13 million (Shetland in Statistics, 1994).
7 - Jack Burgess, Chairman, Shetland Movement, 1996.
8 - The SICâ€™s response to SNP demands for independence in the mid-1970s was to commission a report from the Nevis Institute to consider possible changes to Shetlandâ€™s constitutional status. â€˜The Shetland Reportâ€™ was published in 1978.
9 - Figures calculated from Shetland in Statistics, 1994.
10 - Shetlandâ€™s population declined from a peak of 31670 in 1861 to 17245 in 1966 (Nevis Institute, 1978, p.22).
11 - Shetland delivered an overwhelming â€˜noâ€™ vote in the 1975 Referendum on continued British mem-
bership of the Common Market (Shetland in Statistics, 1994).
12 - Shetlandâ€™s 26 councillors rarely declare a political affiliation. The Shetland Movement has been the largest group on the SIC since the mid-1980s. There are currently 6 Shetland Movement councillors (Shetland in Statistics, 1994).
13 - â€˜Scotlandâ€™s Parliament and Island Communitiesâ€™, paragraphs 1.7 & 2.1 specify that Orkney and Shetland will become two separate constituencies.
14 - Jack Burgess, Chairman, Shetland Movement, 1996.
15 - Oil revenues amounted to Â£700 million in 1988 (Shetland Economic Review, 1993). The Shetland Movement has calculated that the British government has received Â£100 billion in oil revenues
since production began (The Shetland Movement, Information Leaflet, 1995). It is ironic to note that Shetland has been accorded Objective 1 status by the European Community for the period 1994-1999.
16 - The SIC is subject to the same, tight budgetary controls as Britainâ€™s other local authorities. Shetlandâ€™s oil revenues are disbursed from a Charitable Trust set up in 1974.
17 - The current Convenor of the SIC is a Church of Scotland minister
Posted 14 April 2006 - 05:30 PM
Posted 15 April 2006 - 10:46 AM
Posted 15 April 2006 - 12:48 PM
Reply from Stuart J. Dobson (15 April 2006)
Mr Dobson is critical of Stuart Hill's view point, which he considers to be unrealistic
No-one forces people to "sit silently whilst all this long lost historical bull has been given space" or "sit and read long boring letters". If individuals aren't interested in this particular historical and political debate and have nothing constructive to add to it, it may be better to opt out, rather than criticise the people who are.
but as a resident of Shetland for three and a half years now during which time I have had to sit silently whilst all this long lost historical bull has been given space I have a short message for you in modern parlance - "Stuart GET REAL!!!! GET A LIFE!!!!".........Sad isn't it - but not half as sad as having to sit and read long boring letters about a life that never really existed in the first place!
I find this point to be ridiculous; "the detailed study of history - it just ain't worth it, mate"
recognise one guiding principle of the detailed study of history - it just isn't worth it, mate. Why? Because human beings don't learn from history. They should do, I would say they MUST DO, but they never have and unless we change significantly as a human race, they never will.
Whilst I agree in principle that it may be impractical for Shetland to adopt a Udal law system, I find the associated historical debate to be facinating. Keep it up!
Posted 15 April 2006 - 02:46 PM
Posted 15 April 2006 - 03:28 PM
Man may well repeatedly fail to learn from history, but the study of history grows in importance rather than the contrary. Any expression as strong as Mr Dobsons would be well advised to back up his statements with some tangible reason as to why we are all better off "putting up and shutting up". Where in history was that ever proved to be the best, beneficial or correct thing to do.
Any belief that, given certain circumstances, constraints of ignorance and the path of least resistance should be complied with, without question are the stuff of livestock. Utopia may well be a 'formal' dream but tendency toward the like of it has always been of benefit, and will always be.
Without veering off into the stuff of philosophy, Mr Dobson may well be advised to consider that the prosperous land in which he has chosen to settle was not thrown at us by the Crown. Shetlanders, council officials, haggled our unique modern status from 'the powers that be' in the form of the ZCC act of 1974, a unique scenario that the tories of the time were against, whilst labour were for it, and in a window of opportunity caused by the then change of government, Shetlands financial future was secured without comparison within the Union.
That scenario has little or no grounding in Udal OR Feudal Law, but it serves to prove that the right individuals in the right circumstances can indeed change the course of local history to the benefit of Shetland alone.
To scorn this type of behaviour is outrageous indeed.
There's no harm in trying. There has for more than 30 years been vastly more revenues leaving Shetland and its immediate area than returning. And the seabed issue is only one of the roots of that discrepancy. Udal law indeed is operable for Shetland and it's foreshore, the crown possession of the surrounding seabed was an opportunistic act drawing from the gap in Udal law as to ownership of the seabed. It does remain questionable.
Mr Dobson I'm sure would have righteous cause to complain if his wallet was found and kept by the finder, a poor analogy maybe, but the gap in ownership there is like the one in Shetlands seabed history. Finders Keepers. Or rather, "nobody else seems to legally own it, so we're having it," said the Crown Estates.
I confess to ignorance in this whole matter, but there may well be a 'window of opportunity' to change things here, and given such an opportunity the demise of our fish stocks by foreign industrial fleets, the lost revenue from the fish farming industry and the 'ownership' of oil reserves, let alone future prospects, warrant greater awareness and debate.
Posted 15 April 2006 - 05:03 PM
Posted 17 April 2006 - 11:00 AM
Thanks to those who summarily dismissed a point on the value (or lack of it) of historical research. I throw out this challenge to the members of the forum - name me one issue in life where historical study has led to a change in human actions so that right judgments are made in relation to future actions. Example - I was born in the middle of the last century during the course of which we had two world wars and numerous other conflicts in my life time so far. The 20th Century was probably the most historically documented and researched since time began. We know more about war and the effects of war both visually and by documents in the 20th Century than about any other subject. So we come not just to a new century but a new millenium and so what is the first thing we do after getting over the party hangovers, yes of course, you guessed it - we go to war - again. Thousands are murdered - many innocent victims - human life is again cheap. Come on name me one issue where we human beings have learnt any historical lessons and the reasons.
As to SOUL - you guessed it - yes - its all about money, resources, oil wealth, power, who governs. The problem is who wants to spend their time going over the history of centuries if you can't convince the people now to vote for change that will take us forward into the future in one piece not into a history which takes us nowhere.