Monday, 24 September 2007

Scottish Sovereignty and Independence


"Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law."

- Thomas Jefferson

Originally sovereignty was considered to be the absolute power of monarchs but through time that idea has developed in various ways. In Scotland the concept of popular sovereignty first emerged following the death of Alexander III in 1286 when Scotland was without a king. The original concept was called 'the community of the realm' but has evolved into a democratic style where 'the sovereignty of the Scottish people' now rests with the total registered electorate. As far as I am aware the first written example of it is in the Declaration of Arbroath in 1320 -

'...But after all, if this prince shall leave these principles he hath so nobly pursued, and consent that we or our kingdom be subjected to the king or people of England, we will immediately endeavour to expel him as our enemy and as the subverter both of his own and our rights and we will make another king, who will defend our liberties...'.

Popular or democratic sovereignty is the very antithesis of parliamentary sovereignty (the supremacy of the Westminster Parliament) which has existed in English constitutional law since it was established through the English Bill of Rights in 1689. Up until the establishment of the Scottish Parliament in 1999 the constitutional and legal effect on 'the sovereignty of the Scottish people' was that it had merely been unavailable. A specific example of the contradiction between popular sovereignty and parliamentary sovereignty can be found in a 1954 legal finding by Lord Cooper in the Scottish Court of Session -

'...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 of the peculiar characteristics of the English Parliament but none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done...'

- (MacCormick v Lord Advocate 1954 (1953 SC 396))

The Treaty of Union in 1707 abolished neither the Parliaments of Scotland or England as clarified by Article 3 -

'III. That the United Kingdom of Great Britain be represented by One and the same Parliament, to be stiled, the Parliament of Great Britain.'

In her speech to the initial meeting of the devolved Scottish Parliament Dr. Winnie Ewing MSP (Scottish National Party), now retired, said -

'...the Scottish Parliament, which adjourned on 25 March 1707, is hereby reconvened...'

- Scottish Parliament Official Report, Vol. 1, No. 1, 12 May 1999.

In 1989 the Members of the Westminster Parliament in Scotland for the Labour and the Liberal Democrat parties were part of the Scottish Constitutional Convention, one of them was Gordon Brown MP (now the British Prime Minister). They all signed a document, 'A Claim of Right for Scotland', which reaffirmed 'the sovereignty of the Scottish people' and their right to choose the type of government best suited to their needs. From the first elections to the Scottish Parliament up until the elections in May this year they formed a coalition which represented the majority of Members of the Scottish Parliament and as such were in control. They are now part of the opposition and are opposed to any referendum on, or which includes the option of, independence.

Several weeks ago a White Paper, which is based on 'the sovereignty of the Scottish people', was launched by Alex Salmond MSP, MP, First Minister of Scotland, as a consultation with the people of Scotland, it is called 'Choosing Scotland's Future: A National Conversation - Independence and responsibility in the modern world'. In an Opinion column in 'The Scotsman' newspaper Aileen Campbell MSP (Scottish National Party) asked the following question -

'...And what is so scary about fostering a national debate on the future of the country anyway?...'

The first practical example of popular sovereignty being the basis of a system of government is to be found in the Constitution of the United States. That document starts with the words 'WE THE PEOPLE...' which clearly infers popular sovereignty. Anything which follows those words and contradicts them, no matter how remotely, is therefore unconstitutional.

'...the ultimate authority, wherever the derivative may be found, resides in the people alone...'

- James Madison, Federalist 46

The author of the phrase 'WE THE PEOPLE' was James Wilson who was born in Ceres (Carskerdo) near St. Andrews in Fife.

'No man has a right to fix the boundary of the march of a nation; no man has a right to say to his country, "Thus far shalt thou go and no further".'

- Charles Stewart Parnell (1846 - 1891).

3 comments:

George said...

Michael,

Sovereignty has several meanings, as I'm sure you already know.

According to http://www.thefreedictionary.com/sovereignty some meanings boil down to nothing more than the power to rule others.

As for independence, I like to think that the American experience shortly following the writing of the document that begins "We the people..." was pretty much answered with the Whiskey Rebellion. It seemed like one sovereign was traded for another when it came to the issue of taxation without representation.

My point is that sovereignty and independence are truly grand ideas that probably can't exist in the real world, at least as much as we would like. We can take comfort in having something even more precious --- freedom.

George

Life in the Northwest said...

The problem with the principles of sovereignty and freedom, are that they mean different things to different men. In Italy, the Lombard league wants independence from the South and Rome, whereas radical Islamists want the power (another meaning of sovereignty) to live under Sharia rule in the UK.

The increasingly fragmented nature of Europe allows mini states to exist, so the Corsicans look at Malta, the Basques look at Lichtenstein, the Flemish want rid of the French, The Andalusian’s, Aragonese, Asturians, Canary Islanders, in fact every region of Spain want to hark back to the 14th century and have independence parties.

I think you get the point, but let’s not forget the Cornish independence party, Mec Vannin (Manx Independence), and the Isle of Wight independence party exist. There is no limit to the smallness of the divisions proposed.

These differing demands are not always compatible, and therefore it becomes one person’s wants pitted against another’s. You might want a united Scottish state, but what about the aspirations of others that don’t match yours?

There are those islanders in the Highlands and Islands Alliance, who want autonomy from the rule of Edinburgh and the mainland, and which surely most would consider leave too small a nation to survive. However, Luxembourg and Lichtenstein are both smaller than Glasgow, so small states can survive in the new European Union.

Is that what we want, ever smaller political units in a mega Europe of the city states?

Is that such a preposterous idea given the current trends, and can you legitimately deny these aspirations of statehood at a smaller scale than those you want for yourself?

Michael Follon said...

In response to 'Life in the Northwest' the following is an extract from the preface to the book 'European Free Alliance: Voice of the peoples of Europe - The first 25 years (1981 - 2006)' -

'"The EFA seeks to consign to the history books all injustice with regard to languages and communities, minorities and stateless nations."

A European Union that merely recognises the rights of states cannot lead to true democracy and lasting peace. The denial of the rights of peoples and regions, of their language and culture and of their right to self-determination remains a source of frustration and dispute in many European states and abroad.

On the other hand, the narrow-mindedness and self-interest of the member states are preventing Europe from becoming a true champion of human rights, development and peace on a global scale.

Free peoples who can experience their own identity as a nation, a region or language community and who work together to create the democratic institutions that shape the European Union politically: that is the dream of the European Free Alliance.

We want to realise this dream through peaceful and democratic political action rather than resorting to violence. We do not aspire to a centralised European super state, but neither will we be satisfied with a European Union that only exists as a market and that stands divided and impotent when human rights and international law are being violated, or when poverty, war and environmental disasters threaten the lives of millions. Neither will we accept a European Union that looks down on small countries and constitutional regions while allowing the larger member states or the economic and military superpowers to dictate the law.'

Thirty three political parties throughout Europe are members of the European Free Alliance, they include -

Mebyon Kernow (The Party for Cornwall), since 2003,
Plaid Cymru (The Party of Wales), since 1983,
Scottish National Party, SNP, since 1989.

The world we live in is changing - nothing is written in stone.