Scottish sovereignty

It came out on 26th November, but it is not until now that I have had a chance to read the Scottish Government’s white paper for independence, Scotland’s Future. What struck me most forcefully was the SNP’s determination to introduce a novel concept of sovereignty; a helpful diagram contrasts the UK’s ‘Constitution based on sovereignty of the Crown in Parliament’ with a future ‘Constitution based on sovereignty of the people of Scotland’. The idea that it is Scotland’s people that is sovereign, rather than the Scottish monarch, is an old one that can be traced back to George Buchanan and the Scottish Reformation, although there are those who maintain that the idea is found also in the Declaration of Arbroath (1320). The crucial section is this:

  • Him, too [Robert the Bruce], divine providence, the succession to his right according to our laws and customs which we shall maintain to the death, and the due consent and assent of us all have made our prince and king. To him, as to the man by whom salvation has been wrought unto our people, we are bound both by his right and by his merits that our freedom may be still maintained, and by him, come what may, we mean to stand. Yet if he should give up what he has begun, seeking to make us or our kingdom subject to the King of England or the English, we should exert ourselves at once to drive him out as our enemy and a subverter of his own right and ours, and make some other man who was well able to defend us our King; for, as long as a hundred of us remain alive, never will we on any conditions be subjected to the lordship of the English. It is in truth not for glory, nor riches, nor honours that we are fighting, but for freedom alone, which no honest man gives up but with life itself.

It is clear from the Declaration that Robert’s right to rule is conceived of primarily as hereditary, in a mixed constitutional economy in which a hereditary right to rule is necessary but not sufficient; it must also be matched by military prowess. The Declaration’s claim that the Scottish people would depose the king if he were to make Scotland subject to England should be read primarily as a declaration of hatred of the English – that the authors hated the English so much that they would depose Robert if he were to do this. To interpret this passage as a claim of the people’s legal right to depose the king at any time seems perverse and unjustified by the context.

The SNP Government is proposing the adoption of a controverted concept of sovereignty, based on their reading of history, in a future independent Scotland. I find this disturbing, not just because I disagree with the SNP’s interpretation of Scottish constitutional history, but also because I am not sure that the foundations of the sovereignty of a country should be pre-judged before it is independent and before it has a constitution, written or otherwise. At the very least, the SNP ought to have proposed a constitutional convention in the aftermath of independence that would decide the matter of the basis of Scotland’s sovereignty. The strongest basis for the SNP’s position is the Claim of Right Act 1689, by which the Scottish Parliament claimed the right to evaluate the claims of James VII and William of Orange to rule Scotland. The constitutional absurdity of this procedure is evident, given that James VII was and remained the King of Scots in 1689, and the members of the Scottish Parliament had sworn allegiance to him. James had done nothing to justify his deposition as King, even if the Scottish Parliament really had possessed such a power. Furthermore, even if the Scottish Parliament really did possess sovereignty, this does not mean that the Scottish people was considered sovereign. Even after 1689 the text of Acts of the Scottish Parliament continued to use the phrase, ‘Our Sovereign Lord/Lady with advice and consent of the Estates of Parliament…’ This is a form of words that clearly implies some form of sovereignty of the monarch in Parliament.

I am deeply concerned that Scotland’s ‘Yes’ campaign needs to bring in more shades of political and constitutional opinion. The SNP alone cannot be allowed to set the agenda. A further issue, as the President of the Law Society of Scotland rightly pointed out, is that the SNP does not envisage changing the composition or structure of the current Scottish Parliament in any way. Scotland would be a unicameral legislature, with no House of Lords or elected senate. In my mind it is questionable whether the current Scottish Parliament, established under UK legislation, would even continue to exist in legal terms if Scotland became independent, because it is an institution of the United Kingdom. An independent Scotland would either need to constitute new parliamentary structures from scratch or, as I would prefer, reconstitute the ancient pre-1707 Scottish Parliament.

September’s referendum needs to be about independence, not Scotland’s future constitutional arrangements, because only an independent country, after independence, can decide its constitutional arrangements. The ‘Yes’ campaign needs to stay focussed on the one simple question, ‘Do you want to remain under the sovereignty of the United Kingdom governed from London?’ Exactly what the basis of Scottish sovereignty should be cannot and should not be pre-judged.

I have much more to say about Scotland’s Future but I will leave that for future posts.

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2 Comments

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2 responses to “Scottish sovereignty

  1. Dana Stewart

    Freedom first. Quibble about How to defend or entertain Scotland, or otherwise Spend money later. The idea that veterans would be against sovereignty because of proud service being diminished by a separate army is absurd of course. As well as the thought regarding the beloved BBC. Programming by local talent would be far superior, and in no way would exclude the idea of the BBC still being available to the market. One last point; Jacobites bicameral parliament is valid. His views overall are quite sound. Sent from my iPhone

  2. Who or what is sovereign over Scotland at the moment? Interestingly, the White Paper seems to give a legally dubious answer to this question. It adopts the essentially English doctrine of parliamentary sovereignty and contrasts it with the hypothetical doctrine of the sovereignty of the Scottish people. (As you rightly point out, this latter doctrine has little precedent in Scottish history, and seems to be mostly a product of the continental republican tradition – even leaving aside the Declaration of Arbroath, they’re in trouble if Buchanan is their strongest authority.)

    There is judicial authority from as recently as the 20th century that Scots law does not currently, under the Hanoverian dispensation, recognise the doctrine of parliamentary sovereignty. (It has also repeatedly been argued by constitutional lawyers that the sovereignty of the UK Parliament is constrained by the terms of the Acts of Union which created it.) The proposition that Scotland is currently governed under the principle of parliamentary sovereignty is a dubious one, and it is particularly surprising to see it being asserted by Nationalists. It is difficult to tell whether they are asserting it out of ignorance or for polemical purposes.

    As to the pre-1707 period (which would obviously include the Stuart era, not just the few years following the Dutch coup), my understanding is that it is still not agreed among mainstream scholars how far the old Scots Parliament was sovereign in an analogous sense to the English Parliament. It used to be asserted glibly that the pre-1707 Scots Parliament was not the locus of sovereignty like its English counterpart. More recently, the now-standard account of English parliamentary sovereignty, Goldsworthy’s The Sovereignty of Parliament, briefly discussed the question and argued that the Scottish parliament was indeed sovereign – but I am not convinced that Goldsworthy’s treatment is definitive.

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