The SNP’s absurd ‘Draft Constitution’ for Scotland

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.

 

 

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George Mudie and Barack Obama

The past 24 hours have seen US President Barack Obama arm-twisted by David Cameron into supporting Unionism, while Labour MP George Mudie has shown that Labour MPs are still capable of intelligent thought by declaring that he would vote for Scottish independence if he were able. Listening to Obama’s off-the-cuff remarks on Scotland, I felt rather sorry for him – he seemed to be trying to say something that pleased Cameron while not embarrassing himself, and I am not sure that he succeeded. Of course, it is in the US national interest for the United Kingdom to remain as it is, primarily on account of American military reliance on the British Army (of which Scottish troops form such a significant part). Perhaps the SNP’s policy of unilateral nuclear disarmament was on his mind. However, Obama has violated his own government’s claim to neutrality on the independence debate. I wonder what he would think if the British Prime Minister were to publicly endorse the secession of Texas from the Union? Obama risks alienating Scottish Americans with his comments, whilst doing nothing to acknowledge the contribution of Scots fleeing persecution at the hands of the Hanoverian government to the American colonies (of course, that might be because many of those Scots opposed the Rebellion of 1776).

On the other hand, George Mudie, the MP for Leeds East (whilst perhaps not so well-known a figure as Mr Obama) has shown that the Unionist consensus within the Labour Party is nothing more than a fragile performance in deference to Ed Milliband’s need to placate the voters of middle England. With any luck he will be the first of many Labour MPs and MSPs in both Scotland and England to come out in favour of independence, or at least to declare neutrality on the issue.

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King Juan Carlos has made the right choice

It is a sad indictment of the current state of constitutional monarchy in Europe that King Juan Carlos of Spain has probably made the right decision to abdicate today. He has become unpopular in Spain, and the continuation of his reign might well have undermined the monarchy to such an extent that Spain would have been in danger of drifting back into republicanism. He has thus shown the same selfless approach that he displayed in 1981 when he seized back control of Spain from a military coup, and then promptly reigned as a more or less powerless figurehead for the next 33 years. The King has abdicated while the stock of Crown Prince Felipe remains high, although banking on the fickleness of public opinion for the success of one’s monarchy seems a perilous strategy. However, it is important to note that Spain’s modern monarchy is a very young one, and Spain has experimented with republicanism in the not-so-distant past; there is no comparison to be made between Spain and Britain in this sense. The monarchy is immensely popular in Britain and the Commonwealth realms at present, owing to the effect of the Duke and Duchess of Cambridge and Prince George, but the popularity or otherwise of the British monarchy is still neither here nor there in Britain itself. The British have no recent historical experience of a republic and, frankly, most British people despise republican government and its foibles more than they love the monarchy. British pessimism and cynicism about an elected head of state will keep the monarchy in business for a good few decades yet.

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UKIP in Scotland

Of all the European election results, the one that disappointed me the most was the election, by a narrow margin, of a UKIP MEP in Scotland. Alex Salmond has done well to give a major speech on independence straight after the vote, when most Scots are looking with horror at UKIP’s victory south of the border. And indeed some people have pointed out to me that the election of one UKIP MEP in Scotland is a good thing, in the sense that it serves to remind Scots that UKIP is not a remote threat but one that may come to affect them directly. Who knows, if Scots do not vote for independence in September, they may find themselves being governed by a coalition government containing UKIP after the 2015 general election. If Scotland does vote for independence, it raises the interesting question of what will happen to David Coburn, representing a party whose name has become obsolete, not to mention its unionism. So perhaps the message to Scotland should be to vote for independence, if only to deprive UKIP of a major part of its raison d’etre – and to force it to change its name to the less catchy EWNIIP (England, Wales and Northern Ireland Independence Party)…

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The Monarchist Case against UKIP and for the EU

As I try to put my finger on what exactly it is that makes UKIP so repugnant to me, I am drawn to the conclusion that it is because UKIP is a radical party. It is characterised as conservative by its opponents, a sort of refuge for the right of the Tory Party, but I am not sure this analysis is right at all. Nigel Farage may have crafted a political image as a tweed-clad gent, and many of UKIP’s supporters are no doubt from the same stable as those who are on the right of the Conservative Party, but there is something much more insidious at the party’s heart. Nationalism and conservatism have never been easy bedfellows, even though, in the twentieth century, the two sometimes joined forces. This is why a lot of left-wing and liberal commentary on UKIP misses the mark: UKIP is a nationalist party, and therefore fundamentally radical.

Nationalism, of course, only came into existence at the end of the 18th century. ‘Vive la nation!’ shouted the French revolutionaries, against ‘Vive le roi!’ The assertion of the priority of national identity entailed the destruction of an older identity focussed on loyalty to the person of the monarch. Indeed, just by existing, the monarch was an enemy of the nation. We see a pre-echo of this in the execution of Charles I, who died because he embodied a focus of resistance to the idea of an English republic. We see a later manifestation in Hitler’s internment of the Bavarian royal family in Dachau. All nationalism rests on the organic fallacy: the reification of ‘the people’ as a thing in its own right (the same fallacy on which the rebels of 1776 based the Constitution of the United States). It has led to untold suffering, persecution and exploitation, and may perhaps be counted as one of the most harmful ideas of all time. The fundamental basis of monarchism is the repudiation of the organic fallacy, because monarchism existed long before nationalism ever did. ‘The people’ cannot be the foundation of a constitution, because ‘the people’ has no real existence. Only an actual human being, to whom the people are bound by bonds of love, loyalty and affection can truly secure the stability of the state.

Insofar as they are committed to Unionism, all of the major political parties in the UK are nationalist. But UKIP is especially so, because of its organic conception of the UK as an entity absolutely sovereign from Europe, and more importantly because it sees the identity of the UK in terms of its ‘people’. Immigration from the EU must be stopped, because these people cannot possibly be considered ‘British’; they are not British, because they lack the defining characteristics of Britishness; the ability to speak English, perhaps, or a white skin. Yet on another reading, by choosing to come to England, and by choosing to become part of and support English society, immigrants acquire the crucial characteristics of Englishness (a common loyalty and a desire to work for the common good) just by being here.

It is regrettable that in the mid-20th century, fear of Communism often led nationalists and conservatives to join forces. Franco’s union of the crypto-Fascist Falange and the traditionalist Carlists to form a single party in Spain is a case in point, as is the alliance of Horthy’s Hungary with Nazi Germany in the Second World War. The false polarity of Nazism and Communism eventually discredited conservative regimes that had nothing in common, ideologically, with nationalism. In the same way that the entire Conservative Party was tainted by the leadership of the profoundly un-Conservative Margaret Thatcher, so 20th century traditionalists and conservatives were understandably tainted by their association with radical nationalism as monarchy ceased to be a force with any strength in Europe.

In the 16th and 17th centuries, something like what we call ‘the state’ first emerged, but almost always it was centred upon the person of a monarch. The idea that the state is somehow coextensive with a population that speaks a particular language or shares a particular ethnic identity is a much newer one, that was sadly encouraged by the League of Nations after the First World War. New also is the idea that the sovereignty of a nation state is unqualified and absolute. The Holy Roman Empire is a case in point, where individual statelets could raise armies, make war, levy taxes and do virtually anything whilst still retaining an overarching loyalty to the Emperor. This was an arrangement that particularly offended the French revolutionaries and Napoleon, with their organic conception of the state, so they swept the Empire away. So called ‘Patriots’ in America were similarly offended by those who remained loyal to King George in the colonies, inconsistent as this was with their fundamentalist approach to sovereignty. As we enter a future in which the inviolability of national territories seems increasingly irrelevant, given global trade and a borderless world of information, I question whether the old ‘nationalist’ conception of an unqualified and absolute sovereignty remains tenable, realistic or desirable. That is why I support the European Union and the further integration of its constituent nations – not because I do not believe in sovereignty or the state, but because I am opposed to nationalism in all its forms as inherently antithetical to monarchism.

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European Elections 2014: who to vote for?

I must confess that I am somewhat at a loss as to who to vote for in the upcoming elections for the European Parliament on 22nd May. One of the principal imperatives is to oppose UKIP, which represents the low water-mark of post-Imperial British Unionism. UKIP is most prominently opposed by the Liberal Democrats, but I do not think I could ever look myself in the eye again if I were to vote for the Liberals. The Conservative Party advocates an in-out referendum on Europe, which I oppose, because I do not trust the English people to know what is good for them and vote to stay in Europe; the Conservative Party is, in any case, riddled with Euroscepticism, even though I have a great deal of respect for many people in it, such as Ken Clarke. The Labour Party doesn’t seem to have much chance of doing very well in the European elections, at least not in the part of the country where I am – they would never gain a seat, and a vote for Labour is probably wasted. Which leaves me with the Green Party, about whom I have mixed feelings. I have no strong views on ecology, but I certainly endorse the Green Party’s Socialist agenda and their pro-European stance. On the other hand, the Greens have a deplorable record of opposing the monarchy and favouring constitutional reform. However, they do have one major positive, and that is that the Greens are the only UK-wide party to support Scottish independence. They are, therefore, the only party that I can vote for that favours independence – and they have a fighting chance of winning a seat in this part of the country. I remain undecided, but the Green Party may well be the way that I go…

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The real difference between Cameron and Clegg – separation of church and state

This week’s comments by David Cameron and Nick Clegg on whether Britain can be considered a ‘Christian country’, and Clegg’s call for the ‘eventual’ separation of church and state, are a reminder of a fundamental ideological difference between the Conservative Party and the Liberal Democrats that has not been effaced by the coalition deal. David Cameron was not, admittedly, explicitly defending the establishment of the Church of England, but Nick Clegg was certainly attacking it. He also made the point that there are now as many Catholics in England as Anglicans. It seems unlikely that disestablishment will become an issue of political controversy in the near future, but Nick Clegg’s comment in particular have given me reason to reflect on the significance of the establishment of the Church of England for Jacobites. There are two legitimate Jacobite viewpoints on the issue: on the one hand, Jacobitism is the lineal continuation of the High Tory ideology of the 1680s, which was itself a continuation of Civil War Royalism, and therefore fundamentally wedded to the idea of the monarch as Supreme Governor of the Church of England. On the other hand, the Non-Juroring Anglicans became the enemies of the established church after 1688 and were forced, like the Catholics, to go their own way. On that reading of establishment, it is part of the apparatus that discriminates against Catholics within the heart of the British constitution.

I incline to the former view, that a belief in the establishment of the Church of England is fundamental to what it means to be a Jacobite. This creates the apparent paradox that many Jacobites are Catholics supporting the establishment of the Church of England, but I would argue that the co-existence of Catholics and Anglicans (and indeed dissenting denominations) in a shared spiritual economy is a fundamental part of the Jacobite vision of religious toleration. Jacobite religious toleration is not the same as a secular state in which all religions enjoy equal rights. The Catholic Church is privileged because it is the religion of the monarch, and the Church of England is privileged because the monarch is its Supreme Governor. The extent to which English Catholics were involved in the established church should not be underestimated. Catholic landowners held the right to present incumbents to churches under their influence, and used the opportunity to appoint Catholic-friendly clergy. Many  served as churchwardens of their parish church and were heavily involved with their local vestry committees (the predecessor of today’s Parochial Church Councils). Catholics cared deeply about the fabric of their local parish churches, paying for bells and repairs, as well as erecting funeral monuments since the parish church was the only place where they could be buried. During James II’s reign, the King appointed Catholics to a number of positions within the Church of England. This was possible because Canon Law distinguishes between ecclesiastical offices (such as bishop, incumbent and so on) and ecclesiastical honours (dean, canon, prebend etc.). Offices such as bishop and incumbent carry with them, ipso facto, spiritual responsibilities and a cure of souls. Honours do not. Thus, James created the Catholic John Massey Dean of Christchurch Cathedral, Oxford in 1688. James was rumoured to be contemplating making his Jesuit chaplain Edward Petre Archbishop of York but this was unfounded; legally, Petre could never have been an Archbishop.

Protestant commentators at the time were convinced that James was trying to undermine the Church of England by these Catholic appointments. In reality, he was simply using his royal patronage. The church was one area in which he had the power to distribute patronage, to Catholics as well as Protestants, and so he used it within the scope of the law as it stood at the time. The Jacobite model of religious toleration does not seek to determine a ‘lowest common denominator’ of beliefs, like the models of toleration that emerged from the Enlightenment; it recognises the essential role of the Church of England to the stability and welfare of the nation, as well as its uniquely privileged status in law. James II allowed himself to be crowned in an Anglican ceremony (albeit the ceremony was organised by the Catholic Earl Marshal, the Duke of Norfolk) by the Archbishop of Canterbury because he knew that he had to continue as Supreme Governor of the Church of England, in spite of his Catholic faith. For James II, the two titles ‘Defender of the Faith’ and ‘Supreme Governor’ referred to the two faiths he was pledged to defend; the Catholic faith and the faith of the majority of the population, Anglicanism. Unfortunately the Jacobite experiment in England was so brief that we have no way of knowing how it might have developed, but I believe that a state of peaceful co-existence of Christian denominations might have been maintained indefinitely.

James II’s approach was a truly English solution to religious toleration. In arguing for the separation of church and state, the Liberal Democrats reveal their true colours as the children of the guillotine.

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