RBS v. Stuart Hill
The Opinion of Lord Pentland in Royal Bank of Scotland plc v. Stuart Hill [2012] CSOH 110 is sometimes cited as refuting the constitutional evidence relied upon by The Sovereign Nation of Shetland (TSNS). The Opinion contains a clear statement that Shetland forms part of the United Kingdom and lies within the territorial jurisdiction of the Court of Session. This note identifies what the case decided, the authorities relied upon, and the limits of the conclusion reached.
The Foundation Corpus remains the canonical evidential baseline. This page explains an opposing argument; it does not alter the closed status of the Corpus.
The opposing claim
The strongest form of the opposing claim is that the Court of Session has already determined that Shetland is part of the United Kingdom, that Scots law applies there, and that the Scottish courts possess territorial jurisdiction. On that view, the constitutional questions raised by TSNS are already settled as a matter of law and need not be examined further by the courts.
Authorities relied upon
- Royal Bank of Scotland plc v. Stuart Hill [2012] CSOH 110, especially paragraphs 19–27.
- Lord Advocate v. University of Aberdeen 1963 S.C. 533.
- Stair Memorial Encyclopaedia, Volume 24, paragraph 328.
- The opinion of Professor John Grant, as quoted in the Stair Memorial Encyclopaedia.
- The long, peaceful, open and effective exercise of governmental and legislative authority over Shetland by the British Crown.
What the argument establishes
The case establishes that, in the proceedings before him, Lord Pentland rejected the defender's challenge to the jurisdiction of the Court of Session. He held that the Court had jurisdiction to determine the validity of a statutory demand served on a Scottish company and stated that, as a matter of current Scots law, Shetland forms part of the United Kingdom, Scots law applies there, and the Scottish courts have territorial jurisdiction.
The Opinion therefore represents an important statement of the present judicial position in Scotland.
Scope of the argument
This argument addresses:
- The jurisdiction of the Court of Session in the proceedings before it.
- The present judicial treatment of Shetland as part of the United Kingdom.
- The weight placed by the Court upon earlier authority, institutional commentary and long governmental practice.
This argument does not address:
- A proof examining the original 1468–69 instruments and related historical documents.
- Whether allodial ownership of Shetland was ever transferred to the Scottish Crown.
- Whether a treaty or other instrument exists transferring sovereignty or title.
- Whether long exercise of authority, by itself, supplies the missing evidential title relied upon by TSNS analysis.
- A final appellate determination in proceedings brought specifically to decide Shetland's constitutional status.
TSNS analysis
TSNS does not dispute that Lord Pentland's Opinion records the current judicial position. The distinction made by TSNS is between the existence of a judicial consensus and the evidential basis upon which that consensus rests.
The proceedings concerned reduction of a statutory demand served on Royal Bank of Scotland plc. The principal issue was whether the defender had shown a legally relevant basis upon which he could claim to be a creditor of the Bank. The constitutional issue arose as a challenge to the Court's jurisdiction; it was not the subject of proceedings instituted specifically to determine title to, or sovereignty over, Shetland.
Lord Pentland treated the constitutional position as already settled in law and declined to allow a proof on the historical questions. The Opinion therefore shows how the Scottish courts presently approach the issue. It does not record a judicial examination, by proof, of the complete primary documentary evidence collected in the Foundation Corpus.
Readers are accordingly encouraged to distinguish between the court's legal conclusion, the authorities upon which it relied, and the underlying documentary evidence from which constitutional title is said to arise.
What evidence would resolve the question?
- Production of the legal instrument by which allodial ownership or sovereignty over the whole of Shetland passed to the Scottish Crown.
- Identification of the treaty, conveyance or other lawful title completing such a transfer.
- A judicial determination following full examination of the original instruments, supporting documents and competing legal arguments.
- A clear explanation of whether long governmental practice is relied upon as evidence of title, as a substitute for title, or as an independent legal basis.
Position within the Foundation Corpus
This note is included because RBS v. Stuart Hill represents one of the principal judicial arguments advanced against the TSNS position. Its purpose is to present that argument fairly, identify what the Opinion establishes, distinguish it from wider constitutional questions, and return readers to the primary evidence contained in the Foundation Corpus.