ORKNEY AND SHETLAND ARE THEY PART OF SCOTLAND

ORKNEY AND SHETLAND ARE THEY PART OF SCOTLAND? Dr. John Kirkhope Introduction I do not claim this is a definitive examination of the question of whether or not Orkney and Shetland are part of Scotland. In this topic I am a dilettante but I enjoy encouraging debate. Let me start by saying what this paper is not. Others have written about the fascinating history of Orkney and Shetland. I am not a historian and have no intention of duplicating the many publications which are available. Inevitably in what follows there is some history necessary to place the debate in context but this paper, hopefully, considers the legal arguments for and against the proposition that Orkney and Shetland are not part of Scotland. If Shetland is not part of Scotland Scottish law could not apply. I am aware there are those who feel passionately about this matter1. See, for example, Stuart Hill on page 17 of his book “Stolen Isles – Shetland’s True Status”. I take the view that the debate, if you are a legal geek who is fascinated by exploring the dusty and cobwebbed niches of law, is academic. Thus it is possible to argue Orkney and Shetland are not de jure part of Scotland they are de facto. (My brief experience of the Islands is that many people do not feel Scottish and point out they are nearer to Oslo than Edinburgh.) To place my interest in context I have written extensively about the legal status of Cornwall, and indeed the Isles of Scilly, were similar debates arise.(An examination of the papers I have posted on Academia.Edu will confirm the statement.) The fact that ancient laws persist and remain valid, for example Stannary Law in Cornwall and Devon and Udal Law in Shetland and Orkney, does not, of itself mean these territories are jurisdictionally distinct. It does argue they are different. One may argue, for example, Cornwall is de facto part of England but not de jure. Also many in Cornwall are first Cornish rather than English as many argue they are first Shetlanders before everything and not Scottish. There are interesting parallels which have brought me to this topic. 1 See for example Stuart Hill – Stolen Isles – Shetland’s True Status. For the avoidance of doubt I believe it is legitimate, even commendable, to construct arguments which contend that Orkney and Shetland and, indeed, Cornwall are not part of Scotland and England respectively. BUT I believe the possibility the Scottish and Westminster Parliaments and the Scottish Courts and the United Kingdom Courts of accepting such propositions are vanishing small. So I take a pragmatic view and support those who stoically keep battering their craniums against an immovable object. The Kalmar Dowry and a brief (very) brief history of Orkney and Shetland Orkney and Shetland, like Iceland and the Faroe Isles (I have been to the Faroe Isles and would suggest everyone to take any opportunity to visit), were part of the realm of the Kingdom of Norway. In 1397 the Union of Kalmar meant Norway lost (merged) its independence and was united with Sweden and Denmark. (The Faroe Isles are still a territory of the Realm of Denmark.) On 28th May 1469 the hard up King of Denmark, Christian I, “granted pledged and mortgaged, and under assured security and pledge do grant, mortgage and pledge all and sundry our lands of the islands (Orkney and Shetland)……until the aforesaid sum of eight thousand florins…outstanding in the aforementioned letters has been faithfully, fully and completely paid…by us, our heir and successors Kings of Norway”2 Orkney and Shetland were pledged for 50,000 florins for Orkney and 8,000 florins for Shetland to pay the dowry for the daughter, Margaret of Denmark who was thirteen at the time, of Christian I of Denmark to James III of Scotland. Christian wrote to the people of Shetland to pay their “skat” (tax) and to be obedient to the Scottish king until he or his successor redeemed the islands. It is important to emphasise Orkney and Shetland were pawned, or if you prefer mortgaged, to Scotland with the intention the pawn, or mortgage, should be redeemed. Since Christian was unable to provide the cash he offered a part of his realm as security. Various attempts to redeem the pawn, or mortgage, have been made but 2 Mortgage by King Christian of Denmark to King James of Scotland Copenhagen 28th May 1469 Scotland has never entertained such endeavours. This is not just a quirk of history it is fundamental to the debate about whether Orkney and Shetland are part of Scotland. There are also, what, may be called, more day to day to issues which arose which, to this date, have never been fully resolved. The Islands had been subject to Norse Law for hundreds of years and which were in many ways in conflict with the civil law/common law traditions of Scotland. Shetland had its own Parliament (the Ting), its own institutions, its own laws and its own administration.3 The Islanders entertained different definitions of land tenure and inheritance. Centuries of Norse Udal law were threatened. For example under Udal law a freeman owned their land allodially (absolutely) in perpetuity while under freehold feudal law (the Sovereign owned the land absolutely) the freeholder had an interest in land but did own the land itself. In addition under Udal law inheritance extended to all siblings, with daughters awarded portions half of the sons.4 For example in 1975 the Crown Estate had granted a license to Occidental Oil for laying their pipes across the foreshore and charged them for the privilege but the landowner proved his right to that foreshore under Udal Law and to claim payment. The proposition is Udal Law still has application which, at the very least make Orkney and Shetland distinct. (Udal law is a fascinating topic worthy of a distinct examination of itself.5) Does the persistence of Udal Law make Orkney and Shetland Distinct? The answer to the above is yes it does and having answered the question we could move on but that is not sufficient. The fact the Islands are different does not mean they are a separate jurisdiction. On 29th October 2003 there was a report to the Shetland Island Council6 which contained a number of interesting Appendices. The Report was prompted by a voluntary group SOUL (Shetland and Orkney Udal Law Group) Shetland Times 1886 See David Moore The Other British Isles Page 15 5 See Geoffrey Care; Udal Law in Orkney and Shetland; Journal of the Commonwealth Magistrates and Judges Association Vol 16 no 4 December 2006 p.18 “…as a system it is just as much a comprehensive one as is the Common Law. It includes rights of inheritance and succession, weights and measures, administration, law-making and justice as a whole.” 6 Report to Shetland Island Council dated 29th October 2003 Report No: LA-65-F – Petitions, etc – Udal Law 3 4 Appendix 3 of the Report7 I would cite the following: “In support of the proposition I would cite the following extract from the judgement of Lord Lee in the case of Bruce v Smith 1890: “…the whole system of law in Shetland is different from the Common Law of Scotland except in so far it has been assimilated by legislative enactment or gradual adoption.” Stair Memorial Encyclopaedia –Aspect of Udal Law – 316.The seabed: “The juridical basis of the Crown’s claim to the ownership of the seabed remains unclear. Does it lie in the Crown’s right of property as feudal superior, or does it vest in an attribute of sovereignty unrelated to feudalism? Given that….it has been judicially accepted that the Crown was never the feudal superior of Orkney and Shetland, the answer to the question must be of considerable importance there, as it would be impossible to argue consistently that the Crown should enjoy in the Northern Isles these patrimonial rights which arise out of its position in Scotland as feudal superior.” Thornton Consulting Group were asked for an opinion. They stated: “There is an anomaly in the Crown Estates Act 1961. This Act provided that for Orkney and Shetland ownership of the seabed was to be the “same as before” e.g. Shetland retained rights beyond those enjoyed rights beyond those enjoyed by other Crown Properties.” Thornton Consulting went on to say: “Finally it seems to me that Shetland and Orkney are in a special position and have a one off opportunity to assert their position and take advantage of the recognition of Udal Law. My concern would be that if this opportunity is not exploited to the full it will be lost.” Appendix 5 of the report from the Head of Legal and Administration considered the impact on conveyancing practices of the Land Registration (Scotland Act) 1979. It states: 7 Memo to Head of Services dated 25th June 2003 reference AP/LAKA attaching a report from Thornton Consulting dated 14th June 2003 “These conveyancing practices derived from the acceptance of the unique underpinning of Udal law in Orkney and Shetland” It went on to say: “For lawyers engaged in conveyancing practice in Orkney and Shetland a knowledge of Udal Law….is necessary” It must be said Udal Law was a comprehensive system. It was not just concerned with ownership of land it includes rights of inheritance and succession, weights and measurements and money; government, administration, lawmaking and justice as a whole. Orkney and Shetland are they part of Scotland and the United Kingdom? So to return to my original question Udal Law makes Orkney and Shetland different but is that sufficient to hang a claim they are not part of Scotland and thus not part of the United Kingdom. My answer is no anymore than I think the undoubted persistence of Stannary Law in Devon and Cornwall means that those Counties are not part of England. I accept the proposition it is arguable they are not de jure but de facto they are. In what follows I rely heavily on an article by Brian Smith titled: “When did Orkney and Shetland become part of Scotland? A contribution to the debate”8 The Islands links with Scandinavia were a result of conquest in the ninth century. As early as 1281 the kings of Scotland and Norway agreed that Orkney should become part of Scotland if Norway defaulted on her obligations in a royal marriage. In 1468/69 because Christian I could not provide the resources to pay for the Dowry for her forthcoming marriage to James III of Scotland he pledged the Islands as security. So far so good. All scholars agree. On 20th February 1472 James III annexed the Islands to his Crown. The Islands would be governed by the Crown and administered on the King’s behalf. The Islands still had their own legal and administrative institutions, their own parliaments and officials. No one tried to change that. In 1482 when King Christian’s successor, King Hans, was crowned his council insisted made him swear an oath to do something about redeeming the Islands. The Council 8 Brian Smith: A Paper delivered as a lecture in the Shetland Museum and Archives in September 2007 regarded the mortgage as a national insult. King Christian II, after King Hans, in 1513 swore the usual oath to get back the Islands. In 1514 Scotland needed soldiers in a war with England and hoped to get 6,000 from King Christian and in return offered Shetland and Orkney. Christian did not take the opportunity to redeem the Islands. In 1524 Scotland made a similar offer to the then King of Denmark, Frederick I. Nothing changed Orkney and Shetland remained as they were. In the meantime the Islands had been governed by Scotland for fifty years. After much diplomatic exchange in 1560 Frederick II, the then King of Denmark, wrote to Scotland the demand the Islands back. The reply was a polite brush off because Mary Queen of Scots was still in France. The tactic became clear; Scotland’s reply was always be polite and vague. In 1621 Denmark and England signed a treat in which their was a clause that the matter should remain quiet during the lifetime of the then Kings James VI of Scotland James I of England and Christian IV of Denmark. In 1612 James promulgated an act of annexation. In 1669 Charles II annexed Orkney and Shetland for the final time. Charles had offered the Islands, along with the Scilly Isles in 1652 with no avail. First the above is a highly abbreviated discussion but the question remains when did Orkney and Shetland become part of Scotland? Brian Smith states: “Christian I pawned Orkney and Shetland to Scotland in 1468 and 1469, and gave no thought to them thereafter. James III took rapid action. They key moment, and the answer to our question, is the day when James and his parliament annexed the islands to the crown., and sent his servants here to collect taxes and administer the law. Nothing was ever the same again. Orkney became part of Scotland on 20th February 1472.” I agree with Smith.