Earlier this month the Scottish Government published its draft bill for an interim constitution for Scotland in the event of a ‘Yes’ vote for independence. Sadly, it shows once again that the SNP is determined to advance a particular ideology of sovereignty as part of the independence campaign. Articles 3.1-4 advocate the direct ‘sovereignty of the people’ and make no mention of the monarch. However, article 9.3 declares that ‘Her Majesty, and Her successors to the Crown, continue to enjoy all the rights, powers and privileges which, according to law, attached to the Crown in Scotland immediately before Independence Day’. Since the rights, powers and privileges enjoyed by the Crown in Scotland are based on the concept of royal and parliamentary sovereignty which currently applies in the whole of the UK, article 9.3 directly contradicts article 3. The draft constitution attempts to avoid this by making article 9.3 subject to the constitution and acts of the Scottish Parliament – in other words, by annulling article 9.3, which is inconsistent with the Buchananesque ‘popular sovereignty’ that the SNP insists on. The continuation of the monarchy in Scotland in this draft constitution is, in other words, an empty assertion that has no rationale. Given that the SNP envisages the provisional constitution being replaced by a permanent constitution after a constitutional convention, one is left wondering whether the vacuity of references to the monarchy is a deliberate attempt to ensure that the final, permanent constitution excludes the monarchy altogether. The monarch would remain ‘Head of State’ in an independent Scotland but has no defined constitutional duties. In particular, the monarch has no role in signing bills into law. Although the SNP claims that Scotland would enjoy the same relationship with the monarchy as other Commonwealth Dominions after independence, this would in fact not be so, since nations such as Canada, Australia and New Zealand have ‘Westminster’ style legislatures and a concept of the sovereignty of the Crown in Parliament.
The suggestion that both the Scottish Government and the Scottish Parliament will continue to govern Scotland, as presently constituted, even after Scotland’s independence day (articles 10 and 11) is disturbing. The SNP envisages independence as an enhancement of its current position in Scotland, rather than a profoundly transforming event for the nation that will allow Scots to determine their own destiny. Article 34′s provision that laws in force in Scotland should remain in force unless explicitly repealed is a sensible one, but just because laws from a previous era should remain in force after independence, this does not mean that the same legislature should remain in place, much less the same government. In the event of independence, Scots must be given the opportunity to discard both the institutions of devolved power and the SNP, should they so choose; there is no prima facie reason why an independent Scotland should simply ‘convert’ existing institutions into those of the new state. The SNP’s proposed constitution offers the worst of both worlds – the vast and unnecessary expense of setting up separate institutions like a Scottish civil service, but also the continuation of the Scottish Parliament and Government in its present form. I am particularly disturbed by the fact that the SNP considers a unicameral legislature composed of equal elected representatives sufficient for an independent Scotland; no attempt has been made to revive the Thrie Estaitis as they existed before 1690. Perhaps the greatest absurdity of all in the draft constitution is the provision (article 34.3) that ‘prerogative instruments’ in force prior to independence would remain in force thereafter – in spite of the fact that the very concept of a prerogative instrument, founded as it is on royal sovereignty, would have been abolished in the new Scotland.
I continue to maintain that, in the event of the Westminster Parliament repealing the Act of Union of 1707 (and this is the only Parliament with the authority to do so, notwithstanding article 35 of the proposed Scottish constitution), Scotland’s only legislature would be the old Scottish Parliament, which would thereby automatically come back into being – or, more precisely, it would come back into being when the monarch summoned it. Authority to establish a provisional Scottish Parliament lies solely and exclusively with the monarch; that Parliament would then have authority to establish a provisional government and call for a constitutional convention. However, an easier and more sensible solution would be for the monarch to summon a constitutional convention at the same time as appointing ministers directly to run Scotland as a provisional government. The question of who the monarch would be in the event of the repeal of the Act of Union is more difficult. Since the Scottish Parliament never voted for the Act of Settlement before 1707, there is good reason to believe that Franz von Wittelsbach might become, by default, King of Scots on the repeal of the Act of Union. For this very reason, I suspect that the Westminster Parliament would decline to repeal the Act, arguing that it was sufficient for a Scottish Parliament to do so. But I am not sure that Scotland would truly be an independent country unless Westminster did so.
I was interested to read of Conservative MSP Murdo Fraser’s suggestion of a federal UK, the closest that any Conservative has come to actually supporting independence. It is good to see that Scottish Tories are finally realising the futility of Unionism. However, I would argue that a federal Great Britain presupposes an independent Scotland, because states can only legitimately choose to federate with one another from a position of sovereignty. A federal Great Britain is not a bad idea, but it would require Scotland to become independent first, and then for the rest of the UK and Scotland to enter into negotiations regarding a federation of some sort.