Why we need the Human Rights Act

Chris Grayling’s absurd back-of-an-envelope proposals for a ‘British Bill of Rights’ to replace the Human Rights Act 1998 are an early sign of the Conservative Party playing fast and loose with Britain’s constitution. It is now open season for such meddling in the aftermath of the Scottish referendum, which used to be confined to the Liberal Democrats. I have commented before on the ‘Bill of Rights’ issue, which, apart from the fact that it recycles the name of a notoriously disingenuous piece of legislation (the 1689 Bill of Rights) is a step on the way to a written constitution. The original ‘Bill of Rights’ was a Williamite attempt to replace James II’s Declaration of Indulgence – but whereas James’s Declaration, promulgated by royal prerogative, promised real toleration and a vision of religious co-existence ahead of its time, William of Orange’s Bill of Rights enshrined the parochial English conception of ‘liberty’ that would come to dominate the 18th century: the ‘liberty’ that prolonged the slave trade, enabled the exploitation of the industrial revolution, and denied religious freedom to Catholics until 1829. For any piece of legislation to consciously echo the 1689 Bill of Rights would represent a highly selective reading of history, but one which the present coalition government seems to promote.

Conservative politicians bleat about the European Court infringing the sovereignty of Parliament – which, again, is a concept introduced in 1689 after the Revolution – demonstrating that they continue to embody the parochial libertarianism of the 18th-century Whigs, unable to bear the thought of something ‘foreign’ interfering in England’s national polity. Eurosceptic Tories and Nigel Farage’s UKIP are the true heirs of the unprincipled Whigs who made the Revolution and Hanoverian successi0n possible. England’s membership of the European Convention on Human Rights is a symbol of our participation in a wider European project that is far more important than the narrow ‘little Englander’ conception of ‘liberty’ treasured by Eurosceptic politicians. Instances in which the European Court of Human Rights has behaved unreasonably are insignificant in comparison with the good that the organisation is capable of doing, and as Ken Clarke has pointed out, it would be unreasonable for the government to make a profound decision regarding Britain’s future relationship with Europe on the basis of dissatisfaction with a few recent decisions. Furthermore, it is obvious that the Conservative Party considers the issue a vote-winner.

It is an embarrassing fact of English and Scottish history for the politicians of the present day that Stuart foreign policy consistently treated Britain as part of Europe: hence why the success of James I and VI’s foreign policy, or indeed Charles II’s, is usually skipped over in favour of the short-sighted isolationism of Elizabeth I’s so-called ‘golden age’. Yet Stuart policy endured for a lot longer than Elizabeth’s.

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We Jacobites love a good defeat

Oh, well…

So the votes are in, and most of Scotland has said ‘No’ to independence. I find it interesting that Glasgow and its surroundings, the area where Catholics of Irish descent predominate, was the region where the ‘Yes’ vote was strongest. What we see on the map this morning is almost a modern-day equivalent of the divide that existed in the eighteenth century between the Catholic Highlanders (supporters of the Stewarts) and the Presbyterian Lowlanders (supporters of the Union).

Failure and defeat in Jacobite history are so frequent as to have become a defining feature of Jacobite identity. We strive and then get heavily defeated – that’s just the way it happens, and we might as well accept it. That does not make the original striving any less worthwhile, because we stand on principle, not for any advantage.

In some ways, I am relieved that the vote has gone the way it has. Of course, I would have preferred an independent Scotland, but I am relieved that I will not have to go through the agony of watching Scotland’s future as an independent nation sketched out on the back of an envelope by Alex Salmond. I am relieved that I will not have to stand by helplessly as a Scottish ‘constitutional convention’ churns out nonsense about popular sovereignty.

And the defeat of the ‘Yes’ vote means that this blog may be able to get back to discussing aspects of Jacobite political theory instead of the reality of Scottish independence.

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Prayer for Scotland

Scotland arms

Almighty God, who didst set thine anointed servant James the Sixth, King of Scotland, over the three kingdoms of England, Scotland and Ireland as undoubted heir of his crowns, and didst deliver thy faithful people in Scotland from tyranny by the restoration of thine anointed servant King Charles the Second to his just rights; vouchsafe now to deliver the Scottish nation from a union injurious to the rights and freedoms of thy faithful people. And graciously permit, according to thy holy will, the restoration of its ancient constitution to the Kingdom of Scotland, that thine anointed servant may govern with justice and mercy to the glory of thy holy name. Through Christ our Lord, Amen.

Sancte Andreus, ora pro Scotia

Sancta Margareta, ora pro Scotia

Sancte Niniane, ora pro Scotia

Omnes sancti Scotici, ora Deo pro Scotia

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A Word from the Prince

Prince Charles

Prince Charles Edward Stuart’s Protest to the Crowned Heads of Europe at his Exclusion from his Lawful Rights, 16th July 1748

Charles, Prince of Wales, Regent of Great Britain

Nobody is ignorant of the hereditary right of our royal house to the throne of Great Britain. It is needless to enter into a detail of it here. All Europe is instructed with the troubles which have so often harassed these kingdoms, and with the wrongs which we have experienced. It knows that no length of time can alter the constitution of that country, nor form a prescription contrary to its fundamental laws. It could not without astonishment see us remain silent [...]. For these causes, and authorised by the examples of our honoured grandfather and of our most honoured father and lord, who has given us full powers in confiding to us the regency of his kingdoms, and in our own and private name, as natural heir of that crown, protest in the manner the most solemn [...] against all that which may be said, done, or stipulated in the Assembly which is presently held at Aix-la-Chapelle [...] to the prejudice and diminution of the lawful rights of our most honoured father and lord, of our own, of the princes and princesses that are or will be born of our royal house.

We declare by these presents that we regard, and will always regard, as null, void, and of no effect, everything that may be statuted or stipulated which may tend to the acknowledgement of any other person whatsoever as sovereign of the kingdoms of Great Britain, besides the person of the most high and most excellent prince, James the Third, our most honoured lord and father, and, in default of him, the person of the nearest heir agreeably to the fundamental laws of Great Britain.

We declare to all the subjects of our most honoured lord and father, and more particularly to those who have given us recently strong proof of their attachment to the interests of our Royal family, and to the primitive constitution of their country, that nothing shall ever alter the lively and sincere love which our birth inspires us with love of them; and that the just gratitude which we have for their fidelity, zeal and courage, shall never be effaced from our heart, [...] and that we shall be always ready to spill the very last drop of our blood to deliver them from a foreign yoke.

Given at Paris this 16th day of July, 1748.

C. P. R.

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Protect the Crown, not the Union

As readers of this blog will be aware, I am strongly in favour of the principle of Scottish independence. Indeed, a belief that England, Scotland and Ireland should be governed as separate kingdoms is constitutive of what it means to be a Jacobite. However, I have a deep feeling of unease about the future of the Crown in an independent Scotland under Alex Salmond’s leadership. Salmond has already proved that he has scant respect for the Crown by seeking to put words in the Queen’s mouth, claiming that she will be proud to be the Queen of an independent Scotland (no more proud than she is to be Queen of Scotland already, one presumes…). Indeed, the statement issued by the Palace reiterating the Queen’s political neutrality, and the need for political leaders to respect it, was undeniably a rebuke aimed primarily at the Scottish First Minister. I suspect this is but a foretaste of things to come in an independent Scotland. Salmond gives every sign of being about to turn into a latter-day John Knox, lecturing and cajoling Mary Queen of Scots and undermining her power in favour of a populist ideology, until eventually she was forced out of her kingdom entirely. I fear that the same fate awaits the monarchy in an independent Scotland. The SNP’s draft constitution revives precisely the same nonsense about sovereignty residing in the people rather than the monarch which Knox and George Buchanan were spouting at the end of the sixteenth century.

Having said that, fears for the security of the monarchy in Scotland are not a good enough reason to turn away from the hope offered by this referendum and vote ‘No’. The fact is that a win for the ‘Yes’ campaign does not guarantee that the SNP will get to impose its ‘back-of-an-envelope’ constitution on Scotland, although I fear that the SNP will think that a ‘Yes’ vote is an endorsement of their party. In reality, this referendum is only the beginning, and the constitutional settlement thrashed out after a ‘Yes’ vote is what will really decide Scotland’s future. The other parties must start putting together alternative constitutional proposals, otherwise Scotland is in danger of turning into a one-party state, where a single party not only rules but also gets to define the very nature of the state itself. That must not be allowed to happen.

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Irreversible Independence?

The ‘No’ campaign is now wheeling out its big guns – washed-up former leaders who happen to be Scottish, like Gordon Brown. I wonder who’s next – Charles Kennedy, perhaps? Or maybe the ‘No’ campaign will make its last attempt to woo Scottish voters by getting Tony Blair to reminisce about his time at Fettes College in Edinburgh. In his speech yesterday, Gordon Brown argued that independence is ‘irreversible’, and that the new powers that Labour would like to give the Scottish Parliament would bring Scotland and England’s relationship close to something like a federal arrangement. The problem with both of these statements is that a federal state can only truly work when its constituent members enter into partnership from a position of equality. Devolution will never prove universally popular in Scotland because it involves the Westminster Parliament magnanimously granting powers to the Scottish Parliament, while remaining sovereign over that Parliament. Federation would imply a treaty signed between two equal nations to create a common, overarching structure. Personally, I should very much like to see an independent Scotland enter into some sort of federation with the remainder of the UK, but only as an equal partner. That is why independence is necessary: to disrupt and challenge the London-centric nature of Britain. Scottish independence, insofar as it will destroy the old UK, is certainly irreversible: but the idea of a new ‘UK’, constituted from scratch by means of treaty between independent states, is altogether less fanciful. All this reveals is that unionist politicians are hidebound by the past (which, I know, sounds rich coming from someone who would restore the pre-1688 constitution).

‘Separation’ and ‘union’, as they have been presented by the ‘Yes’ and ‘No’ campaigns, are a false dichotomy. The real question is how Scotland’s aspirations should best be recognised, constitutionally, within Great Britain (not the United Kingdom, but the island of Great Britain). Independence is the only way that Scotland can aspire to equality with the rest of the UK in any future ‘federal’ union. If the unionist parties are serious about Gordon Brown’s ‘federalist’ language, they would admit this. However, the ‘Yes’ campaign continues to present independence as a more radical change than it would really be, and the ‘No’ campaign continues to scaremonger. The very question to be posed to Scottish voters on 18th September, ‘Should Scotland be an independent country?’ is itself misconceived. The question should be ‘Should Scotland be an independent state?’ The country of Great Britain, as a cultural unity that has existed since 1603, will not magically pop out of existence on 19th September if Scots vote ‘Yes’. Independence is a legal process, and the only thing that can change legally is Scotland acquiring the status of a sovereign state under international law. That will not make Scotland a different country.

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An independent Scotland will need a healthy opposition

Yesterday’s poll suggesting that the ‘Yes’ campaign is edging ahead of the ‘Nos’ has probably been blown out of proportion by the media, and I remain unconvinced that the polls reflect what will happen on the day (one should never underestimate the power of apathy and fear). However, it is becoming very evident that people in England are far more frightened now by the prospect of Scottish independence than people in Scotland are. Let us suppose for a moment that the ‘Yes’ campaign does succeed – in that case, my principal worry would be that Scotland’s political system will not be fit-for-purpose for an independent state. The SNP’s vision of Scotland’s future constitution must be challenged by other political parties, which means that Labour, the Liberal Democrats and the Conservatives must get over their post-referendum hangovers as quickly as possible and engage in a robust debate on the future of an independent Scotland. Given the intransigence of the unionists, I cannot see this happening: I anticipate that the unionist parties will end up in denial about the reality of independence, and will try to sabotage the transition process by various legal and constitutional means.

The trouble with this is that the SNP will then enjoy free-rein to impose its particular vision of independence on Scotland. Immediately after a pro-independence vote, the unionist parties must reconstitute themselves as parties distinct from their Westminster counterparts, offering a distinct vision for Scotland. I am deeply concerned that the SNP thinks that the present Scottish Parliament can simply step into the role of a sovereign legislature, something it was not designed to be. I am even more troubled by the idea that the present collection of MSPs, elected to the devolved Scottish Parliament, will simply become the legislators of a sovereign state. Inevitably, in spite of the extensive powers already devolved to the Scottish Parliament, Scottish electors still take elections to that Parliament less seriously than they take a General Election. After independence, a new Scottish Parliament needs to be created from scratch – preferably a bicameral one with some sort of Senate. Opposition parties will need to challenge the idea that Scotland needs a separate armed forces and civil service. Most importantly, they will need to challenge the premise of the SNP’s draft constitution that the people of Scotland, and not the Crown, is sovereign.

This latter point is crucial, because if the SNP’s constitutional proposal is accepted, Scotland will be profoundly separated from the common constitutional doctrine that binds together the UK, Canada, Australia, New Zealand and the other realms, where the Queen is sovereign in her own right. If the SNP manages to assert the sovereignty of the Scottish people, the concept of the ‘British Crown’, which long pre-dates the Union of 1707, will be broken. Alex Salmond is regularly described pejoratively by the ‘No’ campaign as a ‘separatist’ – and he is, but not because he wants an independent Scotland. Independence is no more than what Scotland deserves, but the separation of Scotland from the British Crown by the assertion of a novel notion of sovereignty is an existential threat to the Union of Crowns and the concept of monarchy itself. The notion that Salmond is advocating was never accepted by James VI and his legitimate successors, who asserted the Crown’s undoubted and unqualified sovereignty over the Three Kingdoms – and all right-thinking people in Scotland must now assert it again.

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