Text of Talk
November 26th, 2007Shetland Conversation
Why Shetland Never Became Part of Scotland
Text of talk given on 14th November 2007 at Shetland Museum.
Note: This is the actual text of the talk as presented. There may be some errors in it and my ideas may change as I gather new information – this is simply a record of what I said on the night – something our archivist is remarkably reluctant to provide.
Introduction:
I’m Stuart Hill, chairman of SOUL and editor of the Shetland Independent Newsletter. Almost since I arrived here six years ago I’ve been fascinated with Shetland’s constitutional position and the history surrounding it. The more I looked at it, the more things didn’t add up to what is generally accepted – that Shetland is part of Scotland.
Something I regretted not long after helping to set it up was the choice of name for SOUL. It stands for Shetland and Orkney Udal Law association, but it soon became obvious that Udal Law, although an important factor, was not the real key. There were also historical differences between Orkney and Shetland, and the logistical problems of dealing with both island groups made it more sensible to concentrate on Shetland.
I’m not about to sift through the history that many of you will be familiar with, trying to find a different interpretation, a different slant. I’ll be speaking more about the legal implications of what happened and using some fresh documentation to throw an entirely different light. Brian Smith, in his recent lecture said words to the effect that he was not really interested in the legal issues. I am, and I will be following more the spirit of the SIC’s motto: Med løgum skal land byggja - ‘With laws the land will be built.’ Ignoring the legal aspects is all very well, but at the end of the day this matter may need to be settled in a court of law, so we’d better know what the legal situation is.
Much of what I’m saying applies equally well to Orkney, but there are important differences and this talk is with particular reference to Shetland. I will show why, from both legal and historical perspectives, the date of 1472 proposed by our archivist cannot possibly be the date on which Shetland became part of Scotland and why there can actually have been no date on which that momentous event happened.
I will also be showing on what a shaky foundation the Crown bases its claim to the sea and seabed around Shetland – and indeed its claim to Shetland as part of Scotland, or even the UK. I will explain why the actions of previous monarchs have placed the Crown in the difficult position it now finds itself. I will be pointing out why it is so important to the Crown to foster the belief that Shetland is part of Scotland – so important that the Crown finds it necessary to ignore the law. I will show that, from the Crown’s perspective, there is one particular aspect so important that Shetland’s true history must be suppressed.
And finally I will outline the future implications of what I have put together.
I’ll be looking at various dates in Shetland’s history and considering the question ‘Was Shetland Part of Scotland’ at each point.
I must point out that I am not a legal expert, but I have had the benefit of advice on the subject by some pretty heavyweight legal people – and the documents speak for themselves. I think you will find that what I am presenting is quite logical, and if even if a little tortuous, a clear picture will emerge.
The Money involved:
The clarification of a date on which Shetland became part of Scotland is a pretty important issue to both Shetland and the UK. Today, in pure money terms, assumption of the fact that it happened is what gives the Crown Estates the right to take money from the salmon farmers, the SIC and anyone wanting to use the seabed. It’s what gives the government the legitimacy to license the oil companies to extract over £4 billion worth of oil from around Shetland’s shores every year. It’s what ties us to the raft of EU directives that we have to cope with. While it also gives Shetland access to the diminishing EU grants and support, it’s what ties our hands in deciding what we want to do with our money.
Some questions:
First, I would like to pose some questions. If there was a date on which Shetland became part of Scotland – if it actually happened - do you not think it would be easy to find? Would there not be a piece of paper, say an Act of Parliament that spells it out? If it actually happened, would it be necessary for our archivist, with the whole of Shetland’s archive at his disposal, to ‘propose’ a date as a ‘contribution to the debate’? There would be no debate.
Some people have proposed that the Crown acquired ownership in a gradual manner. In the sort of question we are discussing gradual change is like getting a little bit pregnant – either you are or you aren’t. There has to be a defining document or act – and a date - when it happened. Most of the text books – and our museum, point to 1469 as the defining date – after all that’s when Shetland was handed over. Our archivist has broken with that tradition in proposing 1472. In doing so, he has blown the debate wide open. It is vital to Shetland that this issue is settled.
Some Legal Basics:
So, starting with some basics: From a legal perspective there are three letters that are crucial to the understanding of Shetland’s legal position: C C T.
These stand for the legally accepted means by which a territory can be acquired. They stand for Conquest, by force of arms – Cession, by treaty, or mutual agreement and what’s called Terrae Nullius, when there are no inhabitants and no legal system. Terrae Nullius obviously does not apply in Shetland, so that just leaves us with Conquest and Cession.
One of the effects of a change of jurisdiction is that the laws of the territory making the acquisition usually come into force. Once Norway ceded the Hebrides to Scotland, Scots law, not Norwegian was used - this is a strong indicator as to whether a transfer of power has taken place, although it is not an absolute test.
The History before 1469:
Many historians will agree that the Vikings came and conquered Shetland around the ninth century, so this provides a starting point. This is our first C – Conquest. We need to look no further back than that for a legal starting point.
The next interesting date is 1266 – the date of the Treaty of Perth. By this treaty Norway sold The Sudreys (The Hebrides) and Man (The Isle of Man) to Scotland for 4000 marks and an annual payment of 100 marks – The Annual of Norway. This was a mutually acceptable agreement and we have an example of a second C – Cession.
There was a change of ownership and the Hebrides became part of Scotland and there is no doubt about the date on which it happened.
But it’s not quite that simple. Why is the Isle of Man not part of Scotland now? It is a Crown Dependency with its own parliament and a great deal of autonomy. I will show that Shetland has more right to that status than the Isle of Man.
Although not directly to do with Shetland, The treaty of Perth also confirmed Norwegian sovereignty over Orkney and Shetland and had other important consequences here.
At first the Scots paid The Annual of Norway, but by the 14th century they were in arrears and the resulting friction culminated in the 1468/69 pawning. The French King Charles VII had mediated in the dispute and the agreement, as you all know, was that the Scots King James III would marry Princess Margaret of Denmark, King Christian’s daughter.
At 1469:
The dowry to be provided by King Christian was 60,000 florins. Unable to come up with the money, he impignorated, or pawned ‘the king’s lands’ in Orkney in 1468 as security for 50,000 florins, leaving 10,000 to be paid in cash. He was apparently able to come up with only 2,000 because, in 1469 when he was due to hand over the remainder, he pawned ‘the king’s lands’ in Shetland for 8,000. Immediately afterwards he wrote to the people of Shetland instructing them to pay their scat to the Scottish king until he or his successors redeemed the islands.
What James was interested in was the income he could get from the islands in rents from the king’s lands and scat from the greater population.
So, at this point, the situation is that James III is holding the islands in trust as security against payment of the dowry. There has been no Conquest or Cession. Ownership has not been transferred.
Shetland is not part of Scotland.
1472:
Our archivist has proposed 1472 as the date when Shetland became part of Scotland. Although I was at his talk I did not take any notes because he had promised to give me his after the talk. He later became a bit shy about that and changed his mind, so I don’t have any written notes, but have to rely on a failing memory. At first sight it would seem to be a reasonable argument – James III, by his Act of Annexation appears to make what is a claim of ownership. However, it was not in James’ power to do this as he well knew. Only three years before he had agreed with King Christian to hold the islands in trust until the Danish king could come up with the money to take them back. Without the agreement of both parties this contract could not be changed. The 1472 Act of Annexation was just the first of a number of unlawful attempts by the Crown to justify an indefensible position.
There has been no transfer of ownership. Shetland is still not part of Scotland.
To put it in simple terms: If you got a letter from your building society saying ‘even if you come up with all the money to pay off your mortgage, we’re keeping your house’ – would you think that was acceptable? Can the building society in that way remove your right of redemption? Obviously not, but in effect, that’s what James III was attempting to say with the 1472 Act.
The Act makes Shetland a hot potato for succeeding monarchs.
1486 Letter:
That even James did not think that the Act of Annexation was valid is made very plain by his letter fourteen years later to King Christian’s son, John - a letter discovered by Brian Smith. John has apparently heard rumours that James was about to remove the inhabitants of the islands and replace them with Scots, which would make the job of imposing Scots law much easier (he would then effectively have a Terra Nullius situation – no inhabitants - and could possibly make a quasi-legal claim). Whether James actually intended this ethnic cleansing or not, his remarks to John are very interesting. He goes to great lengths to placate John, assures him that no inhabitants have been removed and there is no intention to change the laws or language of Norway. The fact that the language and laws were not being changed is interesting because it had been surmised, even though not actually stated in the marriage contract.
This is what James says in the letter:
‘Last summer Rothesay Herald brought John’s letters to James, from which he understood that John was moved [to learn] that subjects of the isles of Orkney and Shetland were to be taken from their birthplace and James’s subjects brought over to inhabit those islands and be governed by Scots language and laws, which had caused no little indignation among John’s councillors.’
James goes on:
‘In truth he has removed no inhabitant of those islands from his native place nor has he changed the language or laws of Norway. Pacts still in force were concluded and sealed between John’s father (King Christian) and James, He will have these looked at and will take care that their terms are observed on his part……….’
If James thought that by the 1472 Act of Annexation he had secured ownership of the islands, why did he not just tell John to go away – it would be none of his business. Why would he need to justify his actions to John? - Because he knows he doesn’t own the islands.
So, even at 1486, the king acknowledges that Shetland is not his – it is not part of Scotland.
If our archivist says that 1472 is the date when we became part of Scotland, we can be pretty sure this date is the strongest contender. The king’s letter makes it clear this was not the case, so I could stop here, having proved that it didn’t happen in 1472 – or in 1469 for that matter, but there is a lot more supporting evidence for my contention that it never happened at all.
Sovereignty
First of all, the question of sovereignty. Sovereignty as understood by James III (and most Scottish and English trained lawyers) was quite different to King Christian’s concept of the term. To James, as well as being the right by which he ruled his people, it meant complete ownership of the whole realm. Anything, or any part of the realm that was not claimed was automatically the property of the king and any land owned was owned under a charter from the king. This is the essence of the English and Scottish feudal system, everybody who owns land owns it under a feudal charter granted by the king. Of course, before he can grant a charter, the king must first own the land in question, either personally or as a result of his feudal superiority.
Christian, on the other hand, understood sovereignty simply as the right by which he administered his country and people – the right by which he was Head of State. There was no concept of overall ownership – everybody owned their land under God. This is the principle difference between the udal and feudal systems and what makes them diametrically opposed.
The sovereignty Christian transferred could not possibly include ultimate ownership in the feudal sense. He could not transfer something he did not have.
By asking the people to give their scat to the Scottish king, Christian was temporarily transferring his administrative sovereignty until he or his successors could come up with the money to redeem the islands, at which time that sovereignty would automatically revert to Norway/Denmark. Sovereignty was not being relinquished. The pawning had no time limit and ownership was not being given to, or being acquired by the Scottish Crown.
To make the situation perfectly clear:- after the pawning, James was both Head of State and ultimate owner of Scotland, but only (temporary) Head of State in Shetland. Ultimate ownership remained with the people. This is the real scary bit for the Crown – the bit we can never be allowed to know. The Crown cannot get ownership rights without taking them from the people of Shetland. They are safe in their deception as long as we don’t know.
No transfer of ownership. Shetland was not part of Scotland.
On the question of sovereignty, T.B.Smith, who acted as counsel in The St Ninians Isle Treasure case made the point in his analysis after the case: “In International Law and Constitutional Law it is cer-tainly not assumed that the property prerogative rights even of an annexing State (as contrasted with prerogative rights essential for government) extend to acquired territory without statutory or other sanction—which was certainly lacking in Shetland”
Put more simply, although the sovereign is head of state, that does not give automatic property rights without proper legislation – which never happened in Shetland.
In later times, in Cape Town, Ceylon and Quebec for instance, although there was an acceptance of the British Crown as head of state, any idea of feudal ownership was rejected. The distinction was clearly understood.
The courts have never upheld the fiction that The Crown is the feudal superior in Shetland. The idea that the royal prerogative enables the Crown to presume ownership must be considered as essentially a feudal concept and not applicable in the islands. The only aspect of sovereignty that could apply here is that of Head of State, which confers no property rights.
Understanding these distinctions of sovereignty has caused problems for Shetland up until the recent past, as I shall be explaining shortly.
The question must be asked ‘If the sovereignty now exercised by the Crown is no more than that transferred by King Christian, how can the Crown do any more than hold the islands in trust? Alternatively, if the Crown exercises rights over and above those required for administration, how did they acquire them? In order to charge rents and to exploit resources, the Crown must have ownership. The onus is on the Crown to provide the proof that it has such ownership. I intend to prove that it’s never had any ownership rights whatsoever and that this has been a stumbling block for it ever since the pawning.
1469 – 1669:
During the two hundred years after the pawning the Danes made a number of attempts to pay the mortgage and redeem the islands, but the Scots always managed to avoid the issue. However, at no time did they try to assert that the Danish claims were not valid. They knew they were in the wrong, but were determined to bluff it out. If, at any point during that period, Shetland had become part of Scotland, they would have wasted no time in saying so.
There had been no change of ownership. Shetland had not become part of Scotland.
Between 1469 and 1669 the islands were passed back and forth between the Crown and, as Balfour put it, ‘various needy and rapacious courtiers’. The Crown would grant a ‘tack’ to whomever it pleased, for the recipient to be the beneficiary of whatever income could be extracted from the islands and would then take them back if the grantee fell out of favour. Fourteen times granted out and five times taken back, according to Balfour - each time suffering worse depredations as laws were changed, weights and measures altered and the language suppressed.
All of this indicates that the islands were still a hot potato - the Crown wasn’t sure how to handle them because they couldn’t be legitimately incorporated into the realm. By contrast, no such shenanigans took place in the Hebrides, where there had been a proper transfer of power.
A number of events during this period point to the fact that Shetland was not part of Scotland:
In 1567, Parliament confirmed that the islands should be subject to their own laws. Although there was an attempt to reverse this decision in 1611, that was an order by the Privy Council, which could not over-rule Parliament.
A number of court cases were referred to Bergen during the period.
As late as 1667, the Treaty of Breda confirmed that the pawning was still valid and that therefore ownership had not passed to the British Crown.
So, by 1667, there had still been no change of ownership and Shetland was not part of Scotland.
1669:
Note: There are references throughout the Act to ‘the Earldom and Lordship’. This of course means Orkney and Shetland.
The 1669 Act of Annexation is a document of fundamental importance to Shetland, but I have found only one reference to it in all of the historical texts I have studied. Without it 1707 would become a strong contender for the date when Shetland became part of Scotland - and the UK, with the Act of Union. My attention was drawn to it by a Norwegian contact and I obtained it from the House of Lords archives.
In the Act, Charles II declared that the actions of previous kings since 1540 in granting the islands out had been ‘contrary to the laws and acts of Parliament of this Kingdom’
Regarding the inhabitants of the islands, he declares ‘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’. Although the term had yet to be formally used, it is difficult not to see this as the creation of a Crown Dependency – as happened later in the Isle of Man.
Regarding future acts of dissolution of the realm, he says: ‘And further it is Declared That if any general act of Dissolution of his Majesty’s property shall be made at any time hereafter; The said Earldom & Lordship and others above mentioned & annexed Shall not be understood to fall or be comprehended under the same’.
Taking out the excess legal verbiage makes this easier to read: ‘if any act of Dissolution of his Majesty’s property shall be made at any time hereafter; The Earldom & Lordship Shall not fall under the same’.
With the Union of England and Scotland firmly on the cards at this time, and with Oliver Cromwell’s Commonwealth just behind him, it seems that Charles II intended to keep the islands separate under his own care.
Reinforcing this point, he goes on: ‘And if the said Earldom and Lordship or any part thereof shall be annalied or disponed, or any right of the same shall be granted otherways than is appointed and ordained in manner above mentioned His Majesty with consent forsaid Doth Statute and Declare That all dispositions investments and other rights of the said Earldom & Lordship, or any part thereof which shall be granted contrary to this present Act with all acts of dissolution and Ratification & other acts of Parliamt concerning the same shall be from the beginning & in all time coming void and null and of no effect’
Again, taking out the excess for ease of understanding: ‘That all dispositions and other rights of the Earldom & Lordship, which shall be granted contrary to this Act [and] all acts of dissolution and other acts of Parliamt concerning the same shall be void and null and of no effect’
With the consent of Parliament, Charles was taking the exclusive rights to the islands to himself for all time coming.
Whether these conditions were taken into account in the later disponements up to 1697 is open to question, but apart from the fact that he describes the islands as his property – which, as the Treaty of Breda had just reminded him, he was no more entitled to do than any of his predecessors, the 1669 Act of Annexation restores the situation as it was in 1469. The islands are under the direct personal control of the king, to the exclusion of Parliament, a situation set ‘for all time coming’ and that even if Parliament shall legislate otherwise, such legislation will be null and void with regard to the islands. This reinforces the supposition that Charles intended to keep the islands separate to himself – as indeed was his only real option.
Once again – no change of ownership. Shetland was not part of Scotland.
This may be the most recent piece of legislation that directly concerns the status of Shetland and is of fundamental importance. Where is it displayed? Who knows about it?
1707 Act of Union:
With all future legislation concerning the status of the islands being declared null and void, it is difficult to see how, only 38 years later, the 1707 Act of Union can have applied here.
More difficult is how to explain the change from being a Crown Dependency to becoming a mere county of Scotland – no legislation having been enacted to make that happen. In fact, because the Crown did not have ownership of Shetland, it did not have the authority to incorporate it into the UK. Another slippery deal.
Shetland is still not part of Scotland – or even the UK.
The situation is much easier to understand when you realise what a difficult position the Crown was in. The terms of the pawning had never been complied with and, only two years before, having been recognised as still being in force, meant that ownership had never been transferred and the islands could never be legitimately incorporated into the realm. The Scottish and British Crowns had been successful in fending off attempts by the Danes to get the islands back, but only by subterfuge. The best they could now do was to sweep it under the carpet and pretend that after all this time there was some kind of legitimacy to the situation. This may explain why there are so few historical references to the 1669 Act – after the Act of Union it would be very embarrassing for the 1669 Act to surface.
In a case known as The Poundlars Case 1750-59, involving the Earl of Morton, the issues were referred not to the Scottish courts but to the Court in Bergen. This is after the Act of Union! Can you imagine any other part of the United Kingdom allowing this to happen?
Shetland is not part of Scotland - or the UK.
Court Cases:
Before 1963, there was no doubt that udal law took precedence over feudal.
In 1839: in Spence v Earl of Zetland Lord Jeffrey says: “there is not the slightest appearance of its ever having been held that the overlord of these islands of Shetland had been the original proprietor of all the lands they contain. There is no feudal supremacy, and there is not a shadow or trace of an original property in the lord or sovereign”
Lord Johnson, in the 1907 case Lord Advocate v. Balfour said ‘nothing has occurred since 1468 which amounts to a general acceptance in Orkney (or Shetland, of course) of the Scots feudal system’
Two cases were to turn this accepted situation on its head but with flawed verdicts, as accepted by many lawyers. In both cases the distinction between the administrative and feudal ownership aspects of sovereignty were blurred. The first was:
The St. Ninians Isle Treasure Case
Treasure Trove gives the Crown ownership of buried treasure. It’s an essentially feudal concept, but was used to decide the St. Ninian’s Isle Treasure case. Although the renowned udal law expert, Professor Roberstad had made himself available to testify, the judges dodged the need to even consider the udal law implications by deciding the case in terms of Scottish feudal law – law that was not applicable in Shetland.
Salmon Farmers’ Case:
The 1991 verdict in the Salmon Farmers case is the one on which the Crown Estates base their whole authority in Shetland. Prior to that they asserted in Scotland that their right to the seabed was a feudal right of property. It would be difficult for them to maintain that argument here, so they resorted to claiming it as an aspect of sovereignty and part of the Royal Prerogative. Since only those parts of the Royal prerogative concerning jurisdiction, and not those concerning ownership, apply here, the Crown Estate base their claim on a flawed verdict. After the case it was remarked by one commentator that they must have heaved a sigh of relief. Many lawyers would have welcomed an appeal to the House of Lords, but it seems the legal profession closed ranks at this point and no QC could be found to take on the case.
The two crucial cases in Shetland’s recent history have both been decided by using feudal concepts involving the Crown’s ultimate ownership, that are not applicable here. It seems to have escaped the lawyers concerned that they stood little chance of success when the Crown was ruling for itself.
The Seabed:
I have made a particular study of the seabed question because it is of such relevance to Shetland.
To illuminate the Crown’s claim to the seabed it is necessary to understand how it makes that claim in English law.
In Stuart times and after, writers such as Digges, Selden and Hale proposed that the monarch owned the seas and seabed around England. It is quite clear from those writings that the Crown’s claim to the foreshore, sea and sea bed arises as a consequence of its feudal superiority in the land.
The king first of all owns the land as feudal superior. Because he owns the land, he can claim the foreshore. Because he owns the land and the foreshore, he can claim the sea bed. The sequence is: Land > Foreshore > Sea bed.
Today, the territorial seas extend to a breadth of twelve miles from the coast. Beyond that, the UK claims sovereign rights over the continental shelf to a distance of two hundred miles, or to the median line between it and another state.
Without the land, there can be no claim to the foreshore or seabed.
This is most vividly illustrated in the case of Rockall. When the Crown wanted to claim the two hundred-mile limit around Rockall, presumably in case there was oil there, there was no question of doing so without claiming the rock. Although the rock itself was worthless, ownership of it gave the right to the surrounding sea and sea bed. It would be unthinkable to consider claiming a piece of seabed without the land to go with it. The rock is only 65ft high and yet control of it gives control over an enormous piece of seabed.
This is an example of Terra Nullius. The rock was obviously devoid of inhabitants and therefore open to a lawful claim.
What I’ve described sounds pretty logical and yet, strangely enough, it has no solid basis. Here is an insight into the tenuous nature of the Crown’s claim to the sea bed, even under English law:
The 1866 Crown Lands Act (which I will refer to in a minute) received the Royal assent in August 1866. In December of that year, the Permanent Under Secretary of State at the Board of Trade drew up a memorandum, at the end of which he wrote, in reference to the sea bed: ‘There can be little doubt that we shall have, sooner or later to bring in a Bill or Bills for the following purposes:
To ascertain, or give facilities for ascertaining, the Crown’s title.
This will be a delicate matter and must be postponed for some time.’
Even after the Act was in force the Crown’s title had not been ascertained and yet this Act was the means by which it could grant leases and licenses for works on the sea bed! This would be plain fraud if perpetrated by anyone else. And this is in English law – how much less certain is that claim in Shetland?
This is just another illustration of how difficult the Crown’s situation is in Shetland, and the lengths to which it will go to get its way.
At the time of the pawning, there can be no doubt that the seas between Shetland and Norway were Norwegian, under the control of the Danes. There is nothing to say that Scotland had even the vestige of a claim. It was universally accepted that if a state owned the opposite shores, the sea between also belonged to it.
As is illustrated by Rockall, the Crown cannot claim an area of seabed without the associated land. In 1469 there was no prior occupation or other right, so where does the Crown’s claim to the seas around Shetland come from – unless Shetland is part of Scotland?
In Shetland the Crown makes no claim to ultimate ownership of the land.
It makes no claim to the foreshore.
And yet suddenly it owns the seabed
How did that happen?
The absence of written udal titles to the seabed does not mean that no rights exist – any more than the absence of a udal title on land does. The fact that udal rights existed in the sea is illustrated by the fact that every udal landowner owns the foreshore adjoining his property. It is also generally accepted that individual udal rights extend beyond the low water mark to a point variously defined, but approximating to a depth of 2 metres.
In Orkney it required a billet from the Ting to fish the North Shoal. Fishing rights around offshore rocks and skerries were rotated in the local community in both Shetland and Orkney. There was no distinction between land and sea as far as hunting and fishing rights were concerned. Both were divided into infield and outfield. The outer limit of community ownership was the Marrebeke – where the seabed suddenly dropped off, in other words the edge of the continental shelf. These community and individual rights in the foreshore and surrounding sea have never been taken away from the islands.
In other words, there were established rights in the sea, but they belonged to the people of Shetland, not the Crown.
Crown Estates:
The Crown Lands Act of 1866 was the first of the Crown Lands Acts to make specific mention of the bed of the sea. In a report prior to the Act is the following:
‘By the common law the shores and bed of the sea and of all tidal navigable rivers below ordinary high-water mark are vested in the Crown.
The right of the Crown is of a two-fold character.
First:—A right of property in the soil ……..
Secondly:—A right of jurisdiction ……’
This confirms exactly what I was saying about sovereignty just now. Although the second is applicable in Shetland, the first cannot possibly apply as we’ve seen.
The Act of 1866 was, for the first time, transferring the rights of the Crown in the sea bed and foreshore from the Commissioner of Woods to the Board of Trade. Later legislation made the transfer to the Crown Estates Commissioners, but this Act sets out what was being transferred in the first place.
In Section 25 it states: ‘Nothing in this Act contained shall extend or increase or be construed to extend or increase the Powers or Authorities, Rights or Privileges, of the Crown over the Foreshore, or any Part thereof, but as between the Crown and all other Persons such Powers and Rights shall continue as the same existed before the passing of this Act.’
In order for the Crown Estates to have any authority in Shetland, they must be able to point to some legislation that shows they owned the seabed around Shetland before 1866. Alternatively there must be later legislation to appropriate the seabed around Shetland, which must proceed from the assumption that Shetland is part of the UK. Because the Crown owns no foreshore in Shetland, this Act can only have applied to England, Scotland and Wales, not to Shetland.
Section 7 states: From and immediately after the Thirty-first Day of December One thousand eight hundred and sixty-six all such Parts and Rights and Interests as then belong to Her Majesty in right of the Crown of and in the Shore and Bed of the Sea, and of every Channel, Creek, Bay, Estuary, and of every navigable River of the United Kingdom, as far up the same as the Tide flows (and which are here-in-after for Brevity called the Foreshore),………’
In the whole of English law, the foreshore and sea bed are inextricably linked. In the relevant legislation and documentation reference is constantly made to ‘the shore and bed of the sea’ and other similar terms. No distinction is drawn between them. You cannot have one without the other – they are one and the same. Exactly the same is the case in udal law. If pushed, the Crown would have difficulty proving any right to the territorial seas out to twelve miles around Shetland – simply because it doesn’t own the foreshore. In England it does not make a claim to the seabed without owning the foreshore – neither can it here.
The Crown Estates behaviour in Shetland reflects its tenuous position, but it has been emboldened by the dodgy verdict in the Salmon Farmers’ case and has since been taking a stronger line. The SIC has a number of leases with the Crown Estate. They were kind enough to send me a list. You will notice that no lease is older than 1975. Does that mean that nothing was built on the seabed before 1975? What about all the piers and docks in Lerwick? What about the land reclamation at the Green Head? There must be a lot more I don’t know about.
The Cara Case:
Although the following occurred in Orkney, the same would have applied in Shetland under the same circumstances. An oil company had negotiated a fee with the Crown Estates to lay a pipeline across the foreshore. When the udal proprietor realised his rights were being infringed, he protested and the Crown Estates were forced to give him the fee. Another case of the Crown dispensing rights it did not possess.
Also in Orkney, a cockle fisherman was convicted, partly on evidence from The Crown Estates that they owned the foreshore, even though it was clearly a udal title. When I challenged them on this they were unable to give me an answer, but the man lost his business and now has a criminal record. Again, the same could have happened in Shetland.
The truth is, they know they are on a sticky wicket. If they had a valid claim before 1975, why have they not pressed it? I asked the Crown Estates for details of their foreshore holdings in Shetland. They wrote back saying they have no such register. What landowner does not have a record of their properties? I also asked them for the date of their first transaction in Shetland, but they were unable to find that either.
I made the point that many of the berths in Shetland marinas are inside the line of lowest astronomical tide, the line by which udal title is defined. These berths would be outside their remit and could not legitimately be charged. They replied that a survey would be made to make sure they were not charging inappropriately, but I have heard nothing since. I do know they charge fees at Cunningsburgh, even though the whole of the marina is above the low water mark. This photo was taken in April 2004. You can see the breakwaters, the dredged channel – and the old low water mark before it was dredged. This was taken in March, 2005, when the marina was finished. Again, you can see the low water mark and all of the work is on the foreshore.
The Crown Estate charges for moorings elsewhere in the UK – why not here?
When I enquired they said that in Scotland they deal with moorings associations and that if any group of moorings owners in Shetland wanted to form an association, they would be pleased to deal with them. I replied that I had wracked my brains, but could think of no reason why any group of boat owners would wish to get together to pay their fees.
In short, they are chancers. They will try any pretext to extort money and the whole of their claim here is built on sand.
Oil:
Going back to the 1866 Act, which transferred Crown property to the Board of Trade, later the Crown Estates, the Crown made a smart move by holding back the mineral rights.
These Crown rights were taken care of in the 1964 Continental Shelf Act, when the government appropriated the seabed around the whole of the UK outside territorial waters. This was done despite the fact that until 1963 the courts had denied any property rights of the Crown in Shetland and the Crown had no prior claim to that seabed. The Crown either didn’t know or didn’t care that they had no legal basis on which to proceed.
It would seem to be possible to argue that, if Shetland is not part of Scotland it could make a similar claim that would be stronger than the UK’s over those parts of the continental shelf to the west, north and east of Shetland.
With regard to licences for the oil companies, neither the Crown nor the government can grant what it doesn’t own. This would be fraudulent conversion – but does it own that seabed?
In the action, Kelsey v. Baker, heard before Heath J. in late 1803, in a note endorsed on one of the documents in the case, he said:
If the King possessed it exclusively, he could grant it exclusively.
If he has it as a Trustee, he could not grant it.
I have shown that ownership never passed to the Crown and that they only hold the islands in trust.
The onus rests on the Crown to prove their ownership. As McNeil observes: “The Crown must prove its present title just like anyone else.”
Of course, with over £4 billion worth of oil annually passing through Sullom Voe alone, there are pretty strong reasons for the Crown to hang on to it.
Correspondence with the Queen:
I thought the best place to get information about this whole subject is from the top, so I wrote to the Queen. Reminding her of the pawning and pointing out the provisions of the 1669 Act of Annexation, I asked Her Majesty for the return of Shetland’s sea bed, return of the fisheries and, since Shetland had voted not to remain in the EEC in 1975, for removal from the EU.
Her Majesty’s reply, via her correspondence secretary, was that, as a constitutional Sovereign, she could not get involved and had instructed my letter to be passed to Lord Falconer of Thoroton QC, the Secretary of State for Constitutional Affairs.
I replied that, because of the provisions of the 1669 Act, this was not a matter for parliament, but between Her Majesty and her subjects in Shetland.
Her correspondence secretary wrote back, saying that, the Queen, as a constitutional Sovereign, could not get involved and had instructed my letter to be passed to the First Minister in Edinburgh.
I got a reply back from the Scottish Executive, saying a reply would be sent as soon as possible. No reply so far.
Not having heard back from Lord Falconer of Thoroton, I wrote again to the Queen, asking if I should expect a reply from him.
Once again the familiar: ‘the Queen, as a constitutional Sovereign, could not get involved’, but this time had instructed my letter to be passed to the Secretary for Justice and the Lord Chancellor. I don’t know if these are one and the same nowadays, but I wait with bated breath for a reply from him or them.
Meanwhile, not having had a reply from any of the august gentlemen to whom my letters had been referred, I wrote again to the Queen on 20th. September, requesting that, if she did not want to deal with the matter herself, would she please pass my letter to a personal representative who was not part of either parliament or the government, since it could not properly concern either. I await a reply on that.
The correspondence is interesting, not because of any result, but because it illustrates that even at the highest level there is confusion about what to do with Shetland. Even the Queen does not know who to refer my correspondence to!
It’s too late to do anything:
I get this a lot: ‘after all this time there’s nothing we can do’, which is but another way of saying time cures all. A couple of documents I’ve come across and a very recent court case show otherwise.
It took until 1860 for the legal systems of the Channel Islands to be recognised by a Royal Commission on the basis of a no longer existing document of 1215, The Constitutions of King John.
A 1981 land dispute in the Isle of Man successfully relied on 1405 documents.
These cases were relying on much older documentation and in neither of them was there anything like the wealth of evidence that supports the Shetland case. The elapsed time in both instances was greater than in Shetland’s case.
After a long-running battle with the UK government, the Chagos islanders finally won their case in the House of Lords in October 2007. The case involved the government evicting them from their homeland in order to rent Diego Garcia to the Americans for use as an airbase. The principles clarified during this case are very relevant to Shetland since they involve the illegal use of the royal prerogative, just as has been done here.
Are we Norwegian?
You might think that from all I’ve said, the only option is our returning to Norway. Not a bit – although it might be a distant option. If there is to be any change in Shetland’s status – and that can only happen if the people of Shetland want it – it would, in my view be as a strong and vibrant community making whatever arrangements it wanted with other states. Just as all the other previous colonies of the British Empire now control their own destinies, so could Shetland. The important thing for people to understand is that the present position is without foundation and is only kept in place because we allow it. It’s a house of cards and Shetland holds all the cards.
The polls
• Five Tests of Shetland public opinion in recent times have shown:
• 1975: Shetland and the Hebrides were the only places to vote not to continue as members of the EEC
• 1992: A Shetland Times poll showed 62% would like more autonomy.
• 2003: A leaflet circulated with the Shetland Times drew over 1,000 responses asking for more autonomy.
• 2004: A SOUL petition revealed over 1,000 wanted more autonomy.
• 2006: A Tory poll found 77% wanted more autonomy.
There is an appetite for change
The Implications:
If Shetland is not part of Scotland, and I think I have shown that it never happened, the implications, for Shetland, for the UK and beyond, are profound.
The UK’s use of Shetland’s fisheries as a bargaining chip to enter the EEC would have been invalid. We would still have control of our fisheries.
Shetland’s clear wish not to be involved with the EEC would have been respected.
The UK government would not have been able to claim Shetland’s continental shelf.
The oil would rightfully belong to Shetland.
Shetland would have been unaffected by foot and mouth regulations. The outbreak was in S. England, but France was not closed, nor Ireland, or even N. Ireland – part of the UK.
We would not be swamped by EU regulations and directives.
Shetland could have its own offshore banking sector, stamps and currency.
We could register ships.
And all the things that Sandy Cluness stated that Shetland needed, when he was elected to office in 2003 would be possible.
Sandy’s Proclamation
At the time of his election, he is reported in the Shetland Post as saying:
“I hope to see a more successful Shetland with an economy that’s moving forwards while maintaining the very high standard of services that we have,”
“Essentially I believe that Shetland has the potential to be a much bigger community. But I think a degree of autonomy is essential to achieve that.”
What he’s after is what’s known as the Wallace Amendment to the original Scotland Act, which would give us control over this list of services: passenger and road transport; sea and air transport; police; fire services; water and sewage; functions of SEPA; coast protection; inshore fisheries; powers held by the Crown Estate; liquor licensing; Historic Scotland functions; tourism; land use; planning; further education; careers advice; sport and arts. He’s particularly keen on the idea of local control of our fisheries, which he sees as the main plank in building a strong local economy.
I would heartily endorse these aims. Let’s go down them one by one. The first item, passenger and road transport – Zetrans was a good move. After finding nothing more in the list, you have to ask – was he using the right strategy?
The article goes on:
What’s more, he wants a campaign for and a referendum on local autonomy for the isles, going so far as to raise our own taxes to pay for our own government. What happened to the referendum? And our own taxes? As for our own government……
He goes on:
“We need to persuade the Scottish Executive to allow us to proceed along these lines, but first the Shetland people have to show that they want to do this. If they are content to just be a local government area of Scotland, then that’s it.”
‘Persuading’ the Scottish Executive doesn’t work. We don’t need to persuade anyone - they have to persuade us. How could the Scottish Executive allow one ‘county’ such control? To fit in with the existing scenario, Shetland has to be kept under control, not allowed more freedom.
If we want change, we have to go back to basics.
Conclusion:
It is only our acquiescence in the status quo that enables it to continue. If we wish, we can just shut our eyes, take no notice and things will gradually get worse as we are dragged into the mire. If we start asking questions and pressing for answers, things can change. And they can change to whatever degree the people of Shetland wish. Before that can happen we have to be prepared to think the unthinkable –
Is it possible that Shetland never became part of Scotland? I think I’ve shown conclusively that it never happened.
Is the present fiction just one big illusion for the benefit of the UK?
If that is so, do we wish to continue being a part of it?
If we do, it should be with our eyes open, knowing the full facts.
Just as Scotland is having a National Conversation to decide its future, we should be having a ‘Shetland Conversation’ to decide ours – before somebody decides it for us.
As part of the Shetland Conversation, the active participation of the museum and archives in the presentation and promotion of Shetland’s true history is vital. It is simply not acceptable for the museum to display information saying ‘Shetland becomes part of Scotland’ and ‘Shetland was given to Scotland’ when those statements are either plain wrong, or open to question. It is not acceptable for our archivist to propose 1472 as the date when Shetland became part of Scotland, when he has in his possession documents that prove otherwise. The museum and archives are the public custodians of Shetland’s history. Rather than making it open to Shetlanders, their actions point towards their being a mere filter to promote an official line. Is this acceptable? I don’t think so. Let’s show some pride of place.
Whereas most places celebrate their history, Shetland, with one of the most fascinating stories in the world, finds hers buried and suppressed because it is so embarrassing to those who benefit in such large amount from our not knowing. There are strong vested interests, both here, and outside, who would rather we didn’t know our history. It’s not even taught in our schools as it used to be – well we wouldn’t want the kids putting two and two together, would we? They might start asking awkward questions.
To get to the bottom of it all, you need to follow the money. Which is exactly what Alex Salmond is doing. At the SNP party conference in October he said: “…..this morning the price of Brent crude is 86 dollars and heading for three figures. Revenues from Scotland’s resources are flooding into the Chancellor’s coffers………” What he really meant was revenues from Shetland’s resources, and yet Shetland is not even being consulted.
It may be that the only way to resolve Shetland’s position is through the courts. However, the Crown has shown itself to be unconcerned with questions of law that do not suit its purposes and Shetland could have little faith in the UK legal system. We need to realise that only our acquiescence enables the present situation to remain in place. A small action, such as the SIC withholding rents from the Crown Estates until they are able to come up with a satisfactory proof of title would start the ball rolling. The onus is on the Crown to prove their title and until they do, we should not encourage them.
Shetland was recently voted the world’s third most desirable island to visit. To many Shetlanders it’s just home, but sometimes we don’t realise what a special place it is. It has a special character and a very special and unique history that has been hidden and buried – a history that should be brought into the open, celebrated and used to our advantage.
I’ve covered a lot of ground tonight, much of it in unfamiliar territory. There is a lot more supporting evidence, but I hope that with what I’ve shown you I have been able to present a reasonably clear picture and have opened your eyes a little, showing that Shetland’s situation is not what it seems on the surface. The real question is: ‘What do we want to do about it?’
I have opened a website where you can leave your comments:
www.shetlandconversation.com
© Copyright Stuart Hill 2007