We’re delighted to welcome another new voice to Wings Over Scotland, this time in the shape of Peter Thomson of the Tarff Advertiser.
The most fundamental concept of Scottish constitutional practice is the right of the people of Scotland to remove their sovereign. It is a right which has been exercised on at least two famous historical occasions: the forced abdication of Mary, Queen of Scots, which brought about her flight to England, and the removal of James VII from the Scottish crown, based on evidence of James’ attempts to usurp the Scottish people’s sovereign power to the crown alone, in line with his belief that he was king by God’s will and right.
The key passage of the Declaration of Arbroath is the one that contends that the King of Scotland and his successors are king by contract with the sovereign people, and if the crown does not serve the people it can be removed by the will of the people. Originally “the will of the people” would have been the nobles of the day, and the clause was a way of ensuring Bruce kept to his word.
In the years after Bruce’s blindsiding of the nobles in the 1328 Parliament, the concept of equal representation and voice of the Nobles, Church and Burghs – the “Thrie Estaites” – wielded a lot of power. Bruce had realised that without the support of the Burghs there would be no finance available to the crown, he needed the Church to run the administration, and the Nobles to provide force majeur when required. So the will of the sovereign people of Scotland was expressed by the “Thrie Estaites” from early on in the 14th century – without the support of all three the crown was helpless.
Following the Treaty of Northampton in 1329 which re-secured independence, Scotland could be seen to be what we would now refer to as a representative democracy, and more democratic in its political construct than most other Kingdoms at this time. There were no ‘elections’ as we would recognise them in the Burghs to decide who represented the Burgh at Parliament, yet there was a very powerful check and balance: the Burgh mob, who would protest and riot if Parliament tried to enforce Acts and Laws that were not to the mob’s liking or infringed what they considered to be their rights and liberties.
(Given that their lordships and the clergy lived cheek by jowl in the Burghs with the rest of the great unwashed, they were not immune to the Burgh mobs’ hue and cry nor, especially in Edinburgh, could they avoid the ‘hurley burley’ when the Scottish Parliament was in session.)
The position of the Crown in Scotland as one of acclaim rather than right reflects an older tradition of the Picts, which the early Scots kept during their integration with the Picts in the 7th and 10th centuries. This was the concept of a rotating kingship which ensured no single family could take overall power. This only changed with the rule of Kenneth McAlpin, when he took the title of ‘Righ an Albanach’ and established the idea of succession by primature.
According to history he was opposed by the family which became through time the Clan McGregor, who were due for “Buggins’ turn” after McAlpin (and who have been complaining bitterly about it ever since). So the idea of kingship by acclaim was not a revolutionary idea for Scots, but could be viewed as merely a return to what always had been.
Under James VII during the ‘Glorious Revolution’ the “Thrie Estaites” looked again at the contractual notion of Scottish kingship, and offered the throne to William and Mary on the basis of the 1689 Claim of Right, which was enacted into Scots Law as a statute and remains on the legal books of the UK to this day. In Scottish constitutional terms Elizabeth, Queen of Scots, is on the throne because the people say so, and if we decide the House of Windsor is in breach of its contract they can be expelled just like James VII before them.
For example, if the Queen were to publicly state that she did not wish Scotland to be independent (as many of the Unionist persuasion like to claim), she would be acting contrary to the requirements of the 1689 Claim of Right, as it is not within her power to decide on this issue nor use her position to influence the decision in any way – Elizabeth, as Queen of Scots, must accede to the wishes of the Scottish people, or lose the right to the Scottish crown.
(Constitutionally it can be argued that as Westminster is a parliamentary democracy where the Royal Sovereignty is held within that parliament – anything the parliament at Westminster decides in the monarch’s name with respect to Scotland, but which the people of Scotland oppose, could in fact cause the monarch to be removed from her Scottish crown)
This major constitutional hurdle for Westminster has always been in place. The original mechanism designed to circumvent it was the Scottish Grand Committee – which notionally represented the Scottish people’s sovereign voice at Westminster – and in turn the Scottish Office, whose statutory role is to ensure that no UK Law or Statute conflicts with or affects the core rights of the sovereign Scottish people. This is a role which in the last four decades it has serially failed to fulfil, starting with the Local Government Reorganisation Act (Scotland) of 1973.
Fife County Council refused to dissolve itself under the Act, and when the then Secretary of State for Scotland (Willie Hamilton, Labour) tried to enforce Fife’s dissolution he found himself face to face with this very conundrum, when the Queen refused to sign the Order in Council dissolving Fife County Council, in order to uphold and protect the people’s historical rights. The expected legal challenge from the Secretary of State in the Court of Session never came, and Fife County Council went on as before, simply changing its name to Fife Region as its part of the local government reorganisation.
Some authorities go so far as to argue that the Local Government Reorganisation (Scotland) Act 1973 was unconstitutional. The reason they argue is that the rights, liberties and freedoms of the Scottish Royal Burghs were not Westminster’s to remove, as they were individual contracts agreed between the Scottish crown and the burghs and these arrangements were protected under the articles of the 1707 Treaty of Union for all time.
This may well be why the Queen Of Scots was not prepared to sign for the demise of Fife County Council, and why the Secretary of State did not engage in a legal challenge – to do so could well have seen the whole 1973 Act holed below the waterline, when it hit this particular constitutional iceberg in the Court of Session.
Then there was Lord Cooper’s much-cited judgement in McCormack vs the Lord Advocate (1953) where he stated that “the principle of unlimited sovereignty of parliament is a distinctly English principle and has no counterpart in Scottish Constitutional Law”. Equal importance must also be given to the Lord Advocate’s own concession, “admitting the Parliament of Great Britain could not alter or repeal fundamental and essential conditions of the Acts of Union.”
Lord Cooper’s core finding was that the Acts of Union preserved the rights of the Scottish people as being sovereign, and that that status is an essential part of the Acts which cannot be changed, for all time. The 1998 Scotland Act had to tread a very difficult line between trying to hold onto as much power and control at Westminster as possible, while not raising the spectre of any attempt to usurp that constitutional reality, with all the potential impact this could have on Westminster’s grip on Scotland.
Michael Forsyth clearly had read Lord Cooper’s judgement, and argued that the potential Scottish Parliament could pass a bill for independence and there would be nothing Westminster could do to stop it. Forsyth understood that in Scottish constitutional law and practice the Scottish Parliament would be empowered by the sovereign Scottish people, in a way Westminster never legitimately was.
To ensure pro-Westminster parties would always held the whip hand, the dog’s-breakfast mix of FTP constituencies and PR lists was cobbled together – another fudge – but Westminster had to concede that any bill with a direct impact on Scotland now must receive the agreement of the Scottish Parliament before it could be enacted. The reality is the much vaunted sections 5 and 30 of the Scotland Act were enacted to pacify MPs, because in their scope and direction they were clearly in breach of the people of Scotland’s sovereignty, as they made claim to the unlimited Westminster powers which Lord Cooper had stated in 1953 had no counterpart in Scotland.
Tony Blair had now been pushed into signing up to a bill he didn’t want, and would have abandoned in a heartbeat had it been politically possible. He looked at ways Westminster could enforce sections 5 and 30 of the Scotland Act and found there was no appropriate vehicle. To create one, the UK Supreme Court was thought up and brought into being – the problem was again that such a court had no real legitimacy in Scots law and in fact could be argued to have breached the Treaty of Union by its creation, as it threatened the independence of Scots Law. (Blair had a couple of tame Scottish Law Lords agree to sit in the Court and give it a veneer of assumed legality.)
There have now been a number of skirmishes between Scots criminal law and the Supreme Court, but the real crunch was when the first case under section 5 and 30 of the Scotland Act hit the Supreme Court’s desk. All legal expert opinion seemed to feel it would be a walkover for AXA et al vs The Scottish Parliament. Under section 5 &30 of the Scotland Act 1998 the Scottish Parliament’s Bill on Asbestosis Plaques could not stand, as it was clearly at odds with the Acts of the Parliament of Great Britain on the same subject.
Much oil was burned in the UK media about the impending embarrassment for Scotland and the humbling of its pretendy parliament. Yet something strange happened – the UK Supreme Court found for the Scottish Parliament. Hidden away in their judgement was the statement that it had no power to set aside any bill, statute or act of the Parliament of Scotland where that bill expressed the clear will of the (sovereign) people of Scotland.
Forsyth was correct in the context of his original concern that the Scottish Parliament would become the expression of the people of Scotland’s sovereignty and not Westminster – the UK Supreme Court has now acknowledged the fact. Blair may have escaped being the Prime Minister who over saw the end of the Union but he was right in understanding that the Scotland Act 1998 would become the thin end of the wedge. What he didn’t expect was the collapse of the Labour vote in Scotland since 2006 and an SNP majority government in Holyrood willing to flex the people of Scotland’s sovereignty in the best interests of the people of Scotland.
To those who would argue the people of Scotland being sovereign is a myth, that we have no real power and that our sovereignty is merely a curiosity of ancient history, the few examples in this essay should give pause for thought. The 700-year-old history of the people of Scotland’s sovereignty is alive and well and continues to protect our fundamental rights to this day.