Scotland hasnae got a king an’ she hasnae got a queen,
Hoo can there be a second Liz when the first yin’s never been?
So sang the likes of Hamish ‘Two Stools’ Imlach and Matt ‘Bard o the Calton’ MacGinn in the early 60s on the thriving Scottish folk circuit of the time. The sentiment expressed was written off by the establishment as mere whimsy, angry young men and a bit of a bad taste joke. Yet the second stanza reflects the biggest problem that the Union and the defacto Westminster claim to being primus interpares has never faced up to; where does Scottish sovereignty lie and with whom?
You have to delve further back than the Declaration of Arbroath to get to grips with the Scottish legal entity that is our national sovereignty. It starts with the treaty sealed by the marriage between Kenneth McAlpin and his Pictish queen that unified Scotland north of an approximate line from north of an approximate line between Dumbarton and the Firth of Forth. This treaty by marriage is now accepted, by most historians, as being the birth of the Scottish nation as a unified entity and therefore represents the start point of Scottish sovereignty recognised across Europe, or to put it another way it marked the birth of the recognition of Scotland as a nation state.
So what is sovereignty - is it just some fine dust that you can never grasp or hold onto or is it a tangible asset?
Sovereignty is defined as the quality of having supreme, independent authority over a geographic area, such as a territory. And comes in a number of bits and flavours:
1. It is reflected in a nation state’s right to self determination recognised by those states around it.
2. The ability to create and enact laws pertaining to that territory or nation state.
3. Representative democracies permit the transfer of the exercise of sovereignty from the people to the parliament or the government.
4. Parliamentary democracy refers to a representative democracy where the Parliament is, ultimately, the source of sovereignty, and not the executive power.
5. The republican form of government acknowledges that the sovereign power is founded in the people, individually, not in the collective or whole body of free citizens, as in a democratic form. Thus no majority can deprive a minority of their sovereign rights and powers.
6. In a representative democracy involving nation states, such as a ‘Union’, where sovereignty lies is dependent on the ‘social contract’ between the participating nation states
This confusion of thinking about sovereignty leads one expert on international law to say: “There exists perhaps no conception the meaning of which is more controversial than that of sovereignty. It is an indisputable fact that this conception, from the moment when it was introduced into political science until the present day, has never had a meaning which was universally agreed upon. ”
— Lassa Oppenheim
Given all that and a few quid pro quos I think we can safely say, in terms of sovereignty, Scotland meets bullet point one on our shopping list.
Next up is the thorny issue of the constitutional monarchy and just what is the truth about the so- called Union of the Crowns and its impact on Scottish sovereignty?
According to John McGill in his Potted History of Scotland there has been no such event as the Union of the Crowns. It was simply more British Empire spin to create a sense of Westminster legitimacy and supremacy where none actually exists.
James Sixth and First was entitled to take the throne of England, after Liz one died, only because he was the surviving heir with best claim by inheritance through an earlier dynastic marriage between the Stewarts and the Tudors. There was no Union of the Crowns in any legal sense, as there have always been separate regalia and, until after Queen Anne, there were separate coronations. The present Liz uses the regalia of Scotland when she is ‘ben oor hoose’. John McGill attests the Scottish regalia are the oldest continuously used regalia in Europe.
The Union of the Parliaments could be seen as the precursor to the EU in terms of what it was supposed to be about – opening up markets in Scotland to the English and trading access to the English Empire by the Scots in a unified tax zone. What in fact happened was a transfer of power, by default, to Westminster. If you look at the Parliamentary Union through this prism it is clear that the process of Union did not hand over Scottish popular sovereignty to Westminster because Scotland remained sovereign over the key area that defines a sovereign nation state – the ability to enact and enforce its own law; that Westminster has taken the patina of being primus interpares in all respects is a myth and, in my view, legally challengeable in any UN Human Rights Forum. Even Lord Forsyth recognised this myth when he said the reconvening of the Scottish Parliament meant that Scotland could now walk away from the Union any time it so wished and decided to.
Scotland has a long history of what is now termed representative democracy. It started with the rotating Kingships of early Scotland where the righ was appointed by popular acclaim of the heads of the families and it remains to this day that no monarch can ascend to the Scottish throne without the expressed wish of the people of Scotland – another area that Westminster has subsumed over the last three centuries.
In 1320 this long-standing habit was enshrined in a legal document which was notarised by the then equivalent of the head of the UN – the Pope. The letter to the Pope from the Barons of Scotland and written by the Abbot of Arbroath is better known as the Declaration of Arbroath. The letter is in the name of the people of the realm of Scotland. It repeatedly refers to the "sovereignty of the people" in as much that should the King not act according to their will and wishes that they, "the people of Scotland" would elect another who would act in accordance with their wishes, albeit through the officers of state (representatives from church and nobility). More important in terms of the cause of Scotland’s sovereignty, this letter remains a legitimate statement of the Scottish Constitution recognisable as such by the UN today as much as by the Pope in 1320.
Robert the Bruce took this a stage further when his first parliament of 1328 not only contained said church and nobles but also included the burghs (who had been steadfast supporters of Bruce) and thus the Three Estates came into being. The parliament met at regular intervals for the next 400 hundred years and was a thorn in the side of a number of Stewarts who had ideas of being an absolute monarch. James the Sixth made clear he preferred the near absolute monarchy he enjoyed in England to the strictures of a reforming Three Estates who kept him on a tight leash in Scotland.
The ultimate sovereignty of the people finds one of its earliest recorded expressions in the Declaration of Arbroath, where Robert Bruce is declared king and the representative of his people:
"Him, too, divine providence, his right of succession 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. ....Yet [should he prove false,] we should exert ourselves at once to drive him out as our enemy and a subverter of his own rights and ours, and make some other man who was well able to defend us our King."
The SNP in their draft Scottish Constitution make clear their commitment to this fundamental right of the Scottish People:
"5.7 Sovereignty will rest with the Scottish people: and it will be exercised by the Scottish Parliament and Government for and on behalf of the Scottish people." (SNP Outline Scottish Constitution 2005)
Another important piece in the jigsaw of Scottish sovereignty comes when the 1689 Claim of Right was passed into law. The passing of this bill the established rights of the Scots Parliament in relation to the Crown, the monarch reigned whereas parliament legislated while sovereignty remained with the people of Scotland as the supreme constitutional authority. The 1689 Scottish Claim of Right was not subsumed by the Union of the Parliaments and is a fundamental written constitutional document which is still in force to this day. That this principle is still pertinent in Scots law was determined in the case of MacCormick v Lord Advocate 1954 (1953 SC 396). Lord Cooper, the Lord President of the court hearing the case stated, "The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law ... I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament ..."
This then leaves us with the problem of the Scotland Bill 1999, Cameron’s proposed amendments, also to what extent they are in breach of the Scottish people’s constitutional rights and sovereignty. To this end I would suggest that the last word on where Scottish sovereignty lies rests with Winnie Ewing MSP. "The Scottish Parliament adjourned on the 25th day of March 1707 is hereby reconvened.”