Section 38 of the EU Withdrawal bill is a naked grab of Scotland’s right to exist as a nation. It is also a naked breach of settled international law.
In direct opposition to the English doctrine of parliamentary sovereignty, sovereignty in Scotland is reserved to the people of Scotland.
In England, (from the Bill of Rights in 1689), parliament and the crown were ‘sovereign’ over the people. Parliament set the limits of law and of civil liberties and answered to no higher authority. In contrast, the source of power in Scotland was – and remains – the nation itself; it is the people who are sovereign over and who limit the power of government. This is known as popular sovereignty and this uniquely Scottish constitution has existed for at least seven hundred years as recorded:
⁃ in the Declaration of Arbroath of 1320,
⁃ in the interregnum governments of the Greater Council during the minority of four monarchs
⁃ in the practice from 1592, codified in 1663, of salvo jure cujuslibet at the end of each parliamentary session, (by which Scots could challenge the Crown or parliament over legislation that prejudiced their ‘private’/civil rights)
⁃ in the Claim of Right Act of 1689,
⁃ and in the continuing provision in Scots law for the population to have any statute set aside by the Court of Session.
The incompatibility of the two constitutions was never resolved. Instead, it was agreed that the two nations would retain their constitutional differences, with a guarantee that in post-Union Scotland the conditions of popular sovereignty would continue.