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).