Friday, 6 June 2008

The Sovereignty of the Scottish People

'If the Scottish people expressed a desire for independence the stage would be set for a direct clash between what is the English doctrine of sovereignty and the Scottish doctrine of the sovereignty of the people.'

- 'The Operation of Multi-Layer Democracy', Scottish Affairs Committee Second Report of Session 1997-1998, HC 460-I, 2 December 1998, paragraph 27.

Between the Treaty of Union in 1707 and the establishment of the devolved Scottish Parliament in 1999 constitutional law in Scotland developed into its present form where 'the sovereignty of the Scottish people' now rests with the total registered electorate. During this intervening period sovereignty lay with the United Kingdom Parliament at Westminster, and to a certain extent it still does - but not for long. The Treaty of Union did NOT abolish Scots Law as Article XIX makes clear. This temporary loss of sovereignty has to be seen against the background of where the Parliament of Great Britain is located. The siting of that Parliament at Westminster, the location of the Parliament of England, meant that it was within the jurisdiction of English Law and beyond the reach of Scots Law. In his book Gordon Donaldson writes -

'But the theories of English constitutional lawyers prevailed, and the union has proved to have no more sanctity than any other statute. From time to time attempts have been made to appeal to the terms of union, but always without success. The list of violations of the treaty is already a long one and always growing longer.'

- 'Scotland: The Shaping of a Nation', by Gordon Donaldson, pp 58-59, ISBN 0 7153 6904 0.

In an important 1954 legal finding in the Scottish Court of Session Lord Cooper wrote -

'The unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law.'

- McCormick v Lord Advocate 1954 (1953 SC 396).

Against this background the view that 'the sovereignty of the Scottish people' has 'merely been unavailable' is the only possible explanation. British Unionists who still insist that Scottish independence is a matter of 'NEVER' or 'IF' are in denial - Scotland WILL regain its independence and international sovereignty. Only through independence will 'the sovereignty of the Scottish people' become fully available.

Only one country has ever created a form of government based on popular sovereignty (sovereignty of the people) - the United States. The opening words to the Constitution of the United States, 'WE THE PEOPLE', clearly imply popular sovereignty, which was most likely the intention of James Wilson when he penned the phrase.

'Jefferson, concerned that the state legislatures were assuming executive and judicial power, as well as legislative, was prompted to observe..."An elective despotism was not the government we fought for."'

- 'The Federalist Papers', Penguin Classics Edition edited by Isaac Kramnick, p. 25, ISBN 0-14-044495-5.

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

- James Madison, Federalist 46

The following quotations were all found at this URL: http://etext.virginia.edu/jefferson/quotations/jeff0300.htm -

"[The people] are in truth the only legitimate proprietors of the soil and government."

- Thomas Jefferson to Pierre Samuel Dupont de Nemours, 1813. ME 19:197.

"[It is] the people, to whom all authority belongs."

- Thomas Jefferson to Spencer Roane, 1821. ME 15:328

"The ultimate arbiter is the people of the Union."

- Thomas Jefferson to William Johnson, 1853. ME 15:451.

Unfortunately, in the United States, the concept of popular sovereignty has become corrupted and defiled by elitism and political self-interest by both major political parties. In his book John T. Noonan, Jr. writes -

'Nowhere in the entire document are the states identified as sovereigns. The claim that the sovereignty of the states is constitutional rests on an audacious addition to the eleventh amendment, a pretense that it incorporates the idea of state sovereignty...But not one of the fifty states, nor the United States itself, is such a sovereign...It is not directly or indirectly ascribed to the states by the constitution of the United States.'

- 'NARROWING THE NATION'S POWER' , by John T. Noonan, Jr., pp 151-152, ISBN 0-520-23574-6.

In 1787 popular sovereignty was an idea that was ahead of its time but now, in the 21st century, it is an idea whose time has come. Popular sovereignty belongs to all people and not just a select few.

'It's coming yet for a' that
That Man to Man, the world o'er
Shall brithers be for a' that.'

- 'For A' That and A' That' by Robert Burns (1759 - 1796)

8 comments:

sm753 said...

You assert the existence of a "Scottish doctrine of sovereignty of the people".

Really? I know there isn't a pre-1707 Scottish constitution, but are there pre-1707 acts which refer to sovereignty of the people?

After all the pre-1707 parliament doesn't seem to be a particularly democratic body - what was it, an electorate of a couple of thousand? How many members were elected, as opposed to being hereditary or appointed? How often did it meet?

I also find it strange and incredible that many Nationalists project the modern definition of "people" onto the Scottish leadership of 1707, 1320 or whenever. I suspect that those gents' definition of "people" was "important people - men like us with fancy titles and hats."

I see you're also citing the old chestnut of McCormick v. Lord Advocate 1954. I am continually astonished by the significance Nationalists put on this.

Can we agree the following as facts:

- the case was about the rather trivial matter of the Queen styling herself "Elizabeth II"

- Lord Cooper joined with the other judges in throwing the case out (Royal Prerogative; Her Maj can call herself Elizabeth II or Rameses Niblick III of Sheba if she wants to)

- Cooper's comments on sovereignty thus form a side comment to an only tenuously related case, and so not capable of having any great weight put on them.

In any case a quick examination of history quickly calls Cooper into question. The notion of parliamentary sovereignty did not pop into existence in 1707, but developed gradually over centuries; and by no means all of that development took place in England.

Some (pre-1603) took place there; rather a lot of its development took place between 1603 and 1707 when Scotland and England were increasingly linked - most notably, of course during 1652-60 under the Commonwealth; and more development took place after 1707.

So in a very real sense "parliamentary sovereignty" is a British concept, not just an English one.

Which knocks a hole in one of the major historic arguments for Nationalism, doesn't it?

Michael Follon said...

This comment is not only a reply to the one submitted by sm753 but is also basically similar to my response to the comment submitted by sm753 to the post on the Scottish Unionist (also known as AM2) blog post - Cybernats: "Reserved matter? So What!" (http://scottishunionist.com/2008/08/cybernats-reserved-matter-so-what.html)

The reply which I submitted in response to sm753 on that blog post on Thursday evening (22 August 2008) is still awaiting moderation.

sm753:

You write -

'You assert the existence of a "Scottish doctrine of sovereignty of the people".'

That particular phrase is contained in the extract from the Scottish Affairs Committee Second Report of Session 1997-1998 (HC 460-I). Isn't it curious that you chose not mention that extract? So you see it's not just me that asserts its existence. The doctrine of the sovereignty of the people did not just come into being but evolved over the centuries, into the democratic style it has today where that sovereignty rests with the total registered electorate in Scotland, from the original community of the realm which emerged following the death of Alexander III in 1286 -

'There can be little doubt that the phrase was synonymous with the "bone gent, probi homines", 'good men' and "haut hommes" who protested in 1291 when Edward insisted on Scottish acknowledgement of his overlordship. The words were to change their meaning later when any free man...was technically a "probus vir".' - page 65,

'Besides the community of the whole realm there were territorial communities, but the realm could also be thought of as divided into what one might call vocational communities. Thus the self-styled "communitas", which professed to act on behalf of the nation, developed into a parliament which consisted not indeed of a single "communitas" but of "tres communitates" or three estates, for to the lay tenants of the crown and great churchmen there were added burgesses.' - page 92,

SOURCE: 'Scotland: The Shaping of a Nation' by Gordon Donaldson, ISBN 0 7153 6904 0.


Up until the constitutional changes of 1640-41 the Scottish Parliament was effectively part of the king's court.

As regards parliamentary sovereignty you write -

'The notion of parliamentary sovereignty did not pop into existence in 1707.'

On that point I agree with you - because it already existed.

'The Lord Advocate conceded this point by admitting that the Parliament of Great Britain "could not" repeal or alter such 'fundamental and essential' conditions...I have not found in the Union legislation any provision that the Parliament of Great Britain should be 'absolutely sovereign' in the sense that that Parliament should be free to alter the Treaty at will.'

SOURCE: MacCormick v Lord Advocate 1954 (1953 SC 396).


You also write -

'So in a very real sense "parliamentary sovereignty" is a British concept, not just an English one.'

With regard to your use of the term 'British' it is important to be clear about it in it's legal sense. There is NO such thing as British Law or a British Legal System. There is only Scots Law and English Law (I include Welsh Law and Northern Irish Law within English Law as they are essentially variants of it) -

'Nevertheless the two systems remain separate, and - a unique constitutional phenomenon within a unitary state - stand to this day in the same juridical relationship to one another as they do individually to the system of any foreign country.'

SOURCE: 'Royal Commission on the Constitution 1969-1973', Volume I, paragraph 76, Cmnd. 5460.

sm753 said...

Michael

Thanks for the reply.

I've had a look at the Commons Scottish Affairs Committee Report, and associated Minutes and Memoranda.

Still can't find any sources for this assertion of "sovereignty of the people". Kenyon Wright meanders around the subject for a while and ends up going back to the 1320 Decln. of Arbroath. I have already made clear that I do not believe this can be credibly regarded as an expression of "sovereignty of the people" - "sovereignty of nobles and bishops" perhaps.

So, between 1320 and 1707, are there ANY acts, speeches, resolutions of the Scottish Parliament making reference to this concept?

Or was it, as I'm coming to suspect, dreamed up retrospectively?

There is evidence in the democratic status of the pre-1707 parliament, or more accurately the lack of it.

What was the size of its electorate? What were the qualifications for voting? How many members were elected, as opposed to appointed or hereditary?

You say yourself that

"Between the Treaty of Union in 1707 and the establishment of the devolved Scottish Parliament in 1999 constitutional law in Scotland developed into its present form where 'the sovereignty of the Scottish people' now rests with the total registered electorate."

Right. So prior to 1707 Scotland was not a recognisable democracy, with a dysfunctional parliament dominated by nobles and appointees. (As was England's, of course). And the transition to a functioning democracy took place entirely after 1707, in the context of the UK.

So how can "sovereignty of the people" be claimed as some sort of uniquely Scottish concept?

BTW there may be no such thing as "British Law" but there are, obviously, "British Laws" which apply to all parts of the UK.

Michael Follon said...

sm753:

I'm reasonably certain that you won't find any source, either in any documents of the UK Parliament or in a book on Scottish history, that specifically refers to the phrase 'sovereignty of the people'. You will however find, in history books at least, reference to the phrase 'community of the realm' and connected to it the word 'emerged'. Bear in mind that the sources on which Scots Law is based are different from those of English Law, even including the way it has developed since the Union. Just because you can't find something in the terms you are searching does not mean that that something does not exist - 2 plus 2 does not equal 5.

It is now generally accepted that the opening words of the Constitution of the United States - 'WE THE PEOPLE' - were penned by James Wilson and that the Declaration of Arbroath was an influencing factor in it. The concept of 'the sovereignty of the Scottish people' was not 'dreamed up retrospectively' - it could be that you've been influenced by blatant Unionist propaganda (in the final analysis it is upto you to decide what interpretation you choose to believe).

sm753 said...

Ok, find me a contemporary document with any reference to anything vaguely related to "sovereignty of the people".

Contemporary only; I'm not interested in retrospective histories, which are vulnerable to projecting the views and politics of the writer and his time on to the past.

I have had a look through the Scottish Parliamentary records at www.rps.ac.uk, but so far drawn a blank.

I thought the Covenants of 1638 and 1643 might be a source of something useful, but no - not wanting a king as head of a church is not the same thing as "popular sovereignty".

I will be very interested to be shown otherwise, but there appears to be nothing in the contemporaneous record between the flawed and debatable declaration (more accurately, "letter to the Pope") in 1320 and 1707.

So this notion of a peculiarly Scottish doctrine of popular sovereignty may well be one of those things that has come to be "generally accepted" but with no real basis in fact.

sm753 said...

A partial answer to my own question:

George Buchanan's "De Jure Regni Apud Scotos" of 1579.

At least some evidence of thought along the lines we are discussing going on within Scotland.

However, there seems to be little evidence of much happening in the period going back to 1320, and the book itself was banned and proscribed in short order by the Scottish Parliament of the time!

I see that the accuracy and authenticity of the book itself is under challenge, e.g. by the recent posthumous Trevor-Roper book.

Much to read further, but I have to note that the object is not simply to find evidence of thought about limiting monarchical power (which was happening all over Europe), but the rather specific distinction of deriving authority from the people direct rather than from a parliament.

The situation in the Scottish case is also rather complicated by the insertion of the Church (and which one?) and, indeed, God into the argument.

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