Put simply this is one of the best and most important articles I have read on the subject of Scottish sovereignty. It is a long read but it is written in the most readable and understandable form . It contains dynamite information. A truly great read! This debate on this blog is going to provide huge ammunition for the future.
The modern rebranding of absolute power
We are expected to accept as gospel that parliamentary sovereignty is an established principle of the British constitution.
At first glance, if you interpret it as parliament being the main authority to create laws “parliamentary sovereignty”seems innocuous. The problem is that in unionists’ minds boundaries that should be applied to the meaning of this concept either do not exist or are more fluid than water.
Ardent defenders of this theory presume parliament has unlimited legislative power. In their minds, parliament cannot be restrained by international law, therefore it could legislate in violation of it at will (Blick, 2017). Perhaps it is this interpretation what has led to our Treaty of Union being breached with impunity and to noises about breaking EU agreements emanating from that London circus called “The Cabinet”.
Colonialists presume this doctrine gives Westminster unlimited power to legislate in policy areas devolved to Scotland, even if this is done in contravention of Scotland’s own legislatures or against the will of the Scottish people. This supremacist vision is embedded in section 28 (7) of the Scotland Act 1998:
“This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”.
Judging by how England’s representatives saw fit to butcher Scotland’s Act of Union with England or repeal some of our laws, it seems obvious in their minds parliamentary sovereignty extends beyond the boundaries of parliament itself. Clearly they have assumed the right to retrospectively apply their “parliamentary sovereignty” doctrine to Scotland, even when it has been recognised by jurists the Act of Union with England does not confer the parliament of Great Britain unlimited legislative power (MacCormick v. Lord Advocate (1953)
You can even read entries from unionists in Hansard suggesting under this doctrine the UK parliament could revert Acts which granted freedom to colonies. Perhaps the most humane way to bring these deluded colonial souls down from their world of Narnia, would be by encouraging them to test their preachings passing a statute to repeal USA’s colonies freedom. The experience might teach them a much needed lesson in humility.
Colonialists assume they can stretch parliamentary sovereignty to abolish Holyrood because they do not recognise entrenchment, that is, they think parliament cannot limit itself. They claim no parliament can pass laws that future parliaments cannot change.
Well, this is an odd assumption to make. Even if you chose to indulge colonial extremists who preach Scotland was extinguished and absorbed by England, the parliament of England ratified an statute (the Act of Union with Scotalnd) establishing fundamental conditions that should be followed in all times, therefore limiting its own sovereignty and that of the parliament of Great Britain. If the union continues after so many breaches of the Treaty of Union, it is not because Great Britain’s parliament had unlimited sovereignty and could do as it pleased. It is simply because Scotland’s representatives and courts have failed or not even attempted to correct those wrongs.
Dafoes’ views in his book “The History of the Union Between England and Scotland” published in 1786 were quoted by Scot, (1979, quoted in Hunter (2018) “Sovereignty and contemporary Scottish constitutional debate”. LL.M(R) thesis) as follows:
“the articles of the Treaty… cannot be touched by the Parliament of Great Britain; and the moment that they attempt it, they dissolve their own constitution; so it is a Union upon no other terms, and is expressly stipulated what shall, and what shall not, be alterable by the subsequent Parliaments. And, as the Parliaments of Great Britain are founded, not upon the original right of the people, as the separate Parliaments of England and Scotland were before, but upon the Treaty which is prior to the said Parliament, and consequently superior; so, for that reason, it cannot have power to alter its own foundation, or act against the power which formed it, since all constituted power is subordinate, and inferior to the power constituting”
So even the author and pro-union spy Daniel Defoe, thought in 1786 that the treaty of union was the constitution of the new united kingdom of Great Britain and because it was subordinated to the parliaments of England and Scotland, the new parliament could not touch that constitution without dissolving it and itself. This level of entrenchment does not fit at all with unlimited parliamentary sovereignty. Other signs of entrenchment are in Clauses 1 and 3 of part 2A of the Scotland Act 2016:
“The Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom’s constitutional arrangements”
“In view of that commitment it is declared that the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum.”
Even stronger entrenchment is seen in clause 37 (Acts of Union) of the Scotland Act 1998:
“The Union with Scotland Act 1706 and the Union with England Act 1707 have effect subject to this Act”
So how to explain this incongruence between clear entrenchment and inability to entrench under this doctrine? I can think in four possible options:
1. The principle of unlimited parliamentary sovereignty did not exist in 1707 nor in 1998 or in 2016
2. They accidentally broke their unlimited parliament sovereignty
3. With the referendum 1997, by demanding their own parliament, the people of Scotland might have broken Article III of the Act of Union with England and trashed the treaty, therefore the validity of those Acts of Union is now conditional to the Act of Scotland 1998. In other words, if they take away our parliament, the union is over.
4. The UK’s constitution is not worth the paper it is written on because the next executive controlling parliament might just repeal the whole darn thing.
So, where does this concept of parliamentary sovereignty come from?
It is seen as an English concept. Lord Cooper (MCormickvs Lord Advocate, 1953) said the concept of parliamentary sovereignty had not counterpart in the Scottish law and found strange the assumption that after both Scotland’s and England’s parliaments dissolved to form a new one, the new parliament inherited all characteristics from the old English parliament but none from the Scottish parliament.
Lord Russell (MCormick vs Lord Advocate, 1953)mentioned Scotland was in a politically unsettled and disturbed state two centuries before the union of crowns, therefore it is unlikely that by 1707 the framework of government had consolidated enough for Scotland’s parliament to have assumed unchallengeable sovereignty.
In a speech delivered in 2011, Lord Hope indicated article XIX preserves the Court of Session’s power and privileges. This is interpreted as special status and immunity to the new parliament, suggesting that when the treaty was drafted, Scotland’s parliament did not enjoy unlimited parliamentary sovereignty.
Interestingly, this concept of parliamentary sovereignty is conspicuous by its absence in the English Bill of Rights of 1688. The Acts of Union 1707 do not say the parliament of Great Britain will have unlimited power either. In fact, the articles of the treaty actively limit Great Britain’s parliamentary power.
Some believe this theory roots from Oxford academic AV Dicey in the 19th century. Dicey’s words confirm this is an English concept associated to English law:
“The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”
So is parliamentary sovereignty really a thing?
Lord Hope of Craighead (WG Hart Legal Workshop 2011) wrote: “There is, as Lord Bingham says, no statute to which the principle can be ascribed. Parliament has not passed any law declaring, in so many words, its own sovereignty. It is because officials at the highest level, including the judges, have refrained from calling its sovereignty into question that the traditional view has grown up, which the judges have endorsed in the exercise of their common law powers, that it is a fundamental principle that Parliament’s sovereignty is absolute”
During his speech to the Welsh assembly in 2020 regarding clause 38 of the EU Withdrawall bill, Carwyn Jones raised doubts about the UK parliament being sovereign.
Mr Jones must have been onto something, because now the UK parliament website tells us parliamentary sovereignty is the most important part of the UKconstitution. Well, you could knock me down with a feather. And that was me thinking the most important part of the constitution was…well, the constitutional statutes that determine what the state is and give parliament the legitimacy to create laws. It seems this doctrine is more concerned with power than with actual sovereignty.
If there is no statute backing this doctrine, why was so important to mention it the EU withdrawal bill? Mr Jones thought it could be because somebody realised Westminster did not have unlimited parliamentary sovereignty. Personally I think it is because after the people of Scotland voted against Brexit, after MSPs and Scotland’s MPs rejected A50 and the withdrawal bill, Westminster clearly did not have consent from Scotland to enter into and negotiate this international treaty on Scotland’s behalf. A way to airbrush this would be by claiming for Westminster more sovereignty over Scotland than Scotland’s parliament and Scottish people themselves. But we have never been asked which parliament we want to rest our sovereignty on, have we?
The picture below shows how often since 1800 the expression “parliamentary sovereignty” was used in Hansard (for both HoC and HoL):
Well, look at that! It seems they did not care that much about “parliamentary sovereignty” until the 20th century in particular around the 70’s.
A lot of things happened in the 70’s. The oil was discovered, the McCrone Report was commissioned, the SNP won 11 seats in the 1974 general election with 30% of the vote, the debate for the Scottish assembly and the devolution referendum intensified and the EU bill. There is a huge peak in 2011 too. But we all know what happened that year, don’t we?
So why did this doctrine becoame so important from the 70’s?
From a practical perspective, the concept of a parliament with unlimited legislative power in the wrong hands could become a tool to impose absolute rule disguised as democracy. We have four parliaments in the UK, so if parliameontary sovereignty really is a principle embedded in the British constitution and the constitution applies to all 4 parliaments the same, then it stands to the obvious that all four parliaments must enjoy the exact same parliamentary sovereignty, because the powers held by the devolved parliaments are not the same as those held by Westmisnter.
But colonialists insist parliamentary sovereignty can only apply to Westminster. So what is the fundamental difference between Westminster and the parliaments of Scotland, Wales and NI? England MPs only seat in Westminster.
Due to the large number of England MPs, from distance, making this “parliamentary sovereignty” exclusive to Westminster looks like a blunt instrument to legitimise handing England the power to control the other three nations. In other words, the concept of “parliament sovereignty” may have little to do with sovereignty and an awful lot to do with hoarding power.
The UK parliament is a hybrid parliament, with representatives from four different nations. So who is holding whose sovereignty? If we look at the composition of the UK Parliament, Engalnd holds around 85% of the seats. This means that under this exclusivity of Westminster’s “parliamentary sovereignty”, we would have to accept England is holding 85% of its own sovereignty plus 85% of everybody else’s. When did England MPs get the right to steal 85% of our country’s sovereignty? Because when you look at the records of the parliament of Scotland for November 1706, the ratification of the first article of the treaty was conditional to a motion including these words:
“therefore resolved that we are willling to enter into such a union with our neighbours in england as shall unite us entirely and after the most strict manner in all their and our interests of succesion, wars, alliances and trade, reserving to us the sovereignty and independency of our crown and monarchy and immunities of the kingdom and the constitution and frame of the government, both of church and state, as they stand now established by our fundamental constitution, by our claim of right and by our laws following there upon” (taken from the records of the parliaments of Scotland)
It does not sound like the old Scottish Parliament had any intention to hand unlimited sovereignty to England MPs, does it?
This is confirmed with article XXIV of the Act of Union reserving to Scotland in all time coming the crown, the scepter, the sword of state, warrants, parliamentary records and all other records, rolls and registers public and private, general and particular. So this “unlimited sovereignty” England MPs have been assuming “on our behalf” does not come from Scotland’s old parliament or the Treaty of union.
Popular sovereignty in Scotland can be tracked down to the Declaration of Arbroath, whose wording suggests people was above the crown because they had the right to sack a monarch and choose another one. Boece (1527) in his book “Scotorum Historia” also describes the election of kings as the most ancient custom in Scotalnd about Kingship.
This principle described in the Declaration of Arbroath is what was put into practice in 1689 with the Claim of Right, confirming popular sovereignty. The wording of the Claim of Right in 1689, referring how the monarch had broken the laws of the country as the reason to depose him might have been influenced by George Buchanan’s political writings around a century before.
Buchanan’s De Jure Regni apud Scotos Dialogus (1579), advocated for restricting royal power by the rule of law, in a way that if a monarch failed to adhere to Scotland’s fundamental laws, they could be deposed. This is in line with the Declaration of Arbroath. Buchanan goes further and writes that sovereignty derives from the people, herefore monarchs should rule following some form of social contract with the people. In his book he suggested that when a decision had been reached, it should be put the people’s judgement, which some reviewers of his work interpreted as the rudiments of a modern referendum (Burns, 1951)
Popular sovereignty was also confirmed with the forming of a Scottish Constitutional Convention in 1989. This convention was not “called” by the prerogative of the crown or parliament. It was a beautiful example of popular sovereignty where Scottish political parties, churches and other civic groups gathered to created a new version of the Claim of Right asserting popular sovereignty by acknowledging “the sovereign right of the Scottish people to determine the form of Government best suited to their needs”. The principles of the Claim of Right agreed by the Constituional Convention in 1989 were endorsed by the Scotish Parliament in 2012 and the House of Commons in 2018. The conventions as advocated by Salvo may just be our best option yet to exit this union.
More endorsement of Scotland’s popular sovereignty is clause 3 of part 2A of the Scotland Act 2016 which says that Holyrood cannot be abolished except by choice of the people of Scotland in a referendum.
So where is the problem?
Power in the UK is represented by the crown in parliament. This expression means fusion of legislative and executive powers. The “crown” represents the executive power, which is both, the monarch and the government. Royal prerogative, or “Henry VIII” clauses are a right of the crown. It was under this prerogative that initially the Tory government wished to bypass parliamentto trigger A50.
Parliament is elected by the people, therefore in an ideal democratic scenario, this so called “parliamentary sovereignty” is a misnomer because it should represent popular sovereignty. In that scenario, parliament would be an expression of popular sovereignty.
But for parliament to act as an expression of popular sovereignty, it has to be able to control the executive, aka the crown. And to be able to control the crown, MPs need to be free to make decisions and not being subjected to bribes, to coertion, blackmailing or partisanism via whips. What all those tools do is allowing the executive to control parliament, changing it from being an expression of popular sovereignty designed to control the executive, into an arm of the executive used to increase its own power.
A fine example of this is the following quote from Mr Home Robertson in the HoC in May 1997:
“The quaint fiction that this Parliament can be an effective protector of the rights and interests of people in Scotland was finally exposed when this House of Commons voted overwhelmingly to impose the poll tax in Scotland in 1987. I have had private conversations with English Conservative Members of Parliament—some who are still in the House, and others who have departed—and I have asked them how they could possibly have voted to impose such an unfair and unworkable tax on my constituents in East Lothian which would not apply to their constituents south of the border. The reply was always the same—they did not know what they were voting for, but trusted the then Secretary of State for Scotland and voted in accordance with the Government Whip”
So it seems this fight for assertion of sovereignty is in reality a wrestling match for control of parliament and the balance of power between the crown and the people. Parliament is just the effector of that power, a legislative instrument. Therefore the expression “parliamentary sovereignty” is meaningless. The sovereignty is either held by the people who elects that parliament, or by the crown, who is using its executive arm to control it.
This interesting quote taken from an intervention of Mr Salmond in the HoC in May 1997 seems to support this:
“All my political life I have been taught and have believed that there is a tension between the concept of popular sovereignty—sovereignty of the people—and the uniquely British concept of the sovereignty of the Queen in Parliament. The hon. Member for North Essex (Mr. Jenkin) started his speech by saying that there was no such tension, and finished it by saying that there was a tension between the Claim of Right asserting popular sovereignty in Scotland and the concept of the sovereignty of the Queen in Parliament…. Monarchy and popular sovereignty are not necessarily in conflict. The question is which has primacy, The hon. Member for Falkirk, West (Mr. Canavan) and I believe that the sovereignty of the people should have primacy.”
For the last 7 years, we have had foisted on us an executive elected by England. This executive has controlled the majority of parliament and completely silenced our anti-union MP majorities.
In Scotland’s tradition, sovereignty lies with the people, not the crown. Our Claim of Right says it is unlawful to impose absolute rule on Scotland. Because the executive is the representation of the crown and it has been controlling parliament to silence our representation both in Westminster and Holyrood, indirectly this monarch has been imposing absolute rule on Scotland throughout control of parliament by its executive arm.
Let’s not forget the Scottish gov is the arm of the executive in Scotland, which has been controlling our parliament and parliamentary inquiries, with the help of that other arm of the crown, the COPFS, for its own advantage.
In 1661 Charles II, an absolute ruler, attempted to gag popular sovereignty in Scotland by annulling the Convention of Estates of 1643 and the parliaments of 1640, 41, 45, 46, 47 and 48, allegedly because they were called “without the warrand from the Kings Majesty”. Move forward 350 years and we have crown, via its rogue executive arm, gagging Scotland’s popular sovereignty too, only this time by a combination of overruling Scotland’s parliament, abusing the UK parliament to pass retrospective laws and abusing an English court to uphold the rogue legislation and trash Scotland’s continuity bill.This is not “parliamentary sovereignty”. This is absolute rule under a different name.
What political party that has most interest in controlling parliament for its own advantage? That should be the party closer to the crown. Which one is the political party with the highest number of people descending from the royals and aristocrats among its ranks? That will be the tories.
This quote is from Mr Howard in the HoC in May1997:
“We Conservatives know that patriotism is not the same as parochialism. We are proud to stand as the party not only of the Union, but of the constitution and of parliamentary sovereignty”
Well, and how do you reconcile the concept of a permanent constitution with the doctrine of “parliamentary sovereignty” and its two tools – the principle of implied repeal and the non-entrenchment rule? That is a difficult one.
This overbearing control of the parliament by the executive has not escaped jurists. The following quotes can be attributed to Lord Hope of Craighorn (2011):
“When we think of the sovereignty of Parliament we should really be thinking of what this means about the power that this gives to the executive. The executive is, of course, subject to the will of Parliament. But in practice, nowadays, between elections we have what Lord Hailsham famously described in his 1976 Dimbleby Lecture as an ‘elective dictatorship’ “
“It seems to me that there is a very real question as to whether we can continue to rely on Parliament to control an abuse of its legislative authority by the executive”
So why have rogue executives successfully abused our popular sovereignty and been allowed for over 300 years to abuse our Act of Union with England and our Claim of Right?
The response is simple: a combination of ignorance, disinterest, acquiescence and self-servitude. The custodians of our rights are our representatives in parliament, the peers of the HoLs and ultimately the Scottish courts. All three have failed Scotland.
The Scottish courts should have been the ultimate gatekeepers of our Act of Union with England. Instead, they chose to make their life easy by hiding behind the principle of parliamentary sovereignty to avoid confrontation with the executive. These two quotes are from Lord Hope of Craighorn in 2011:
“In the past the courts did not prove themselves to be strong bulwarks against claims by the Crown under the prerogative. It was left to Parliament to do this by asserting its authority. But it is far from clear today, when it comes to providing a bulwark against an excess of the exercise of power by the executive, that Parliament can be relied upon in way that would make it unnecessary to look to the judges to do this for us”
“It was all too easy to find ways of dealing with the issue in some other way so as to avoid a confrontation with Parliament which, in truth, the judges would rather not have. It appears then to be the case that it is simply because of the apparent absence of limitations that the belief has grown up that Parliament may pass any law at all whatever without any limitation”
Lord Bingham of Cornhill in his book The Rule of Law(cited in Lord Hope, 2011) said:
“To my mind, it has been convincingly shown that the principle of parliamentary sovereignty has been recognised as a fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by the judges and others officially concerned in the operation of our constitutional system. The judges did not by themselves, change it.
In other words the Scottish people are on their own Any idea that the UK Supreme Court is going to rule against an Act of Parliament because it breaches a previous one, never mind the Treaty of Union is a pipe dream.
. We have already seen how the Uk Supreme court used the principle of popular sovereignty and implied repeal to legitimise the trashing of Article VI of the Treaty of Union with Ireland with the EU withdrawal bill. It will do the same with the Treaty of Union 1707.
We have been abandoned by the courts, which preferred to look the other way while the Act of Union with England was butchered. We were abandoned by the Scottish Peers, far more preoccupied by their concessions and standing than Scotland’s interests. And we have been abandoned by our MPs, who, bar very few, have been blinded by unionist partisanism, careerism and power greed. This has never been more obvious than with the SNP under Sturgeon.
MIA has written a tour de force here. I hope readers recognise the time, effort and remarkable skill demonstrated. To take a potentially dry and complicated subject and marshall your arguments in such an effective way is a true gift. I recommend every pro Indy supporter copies this and keeps it handy. That way you can go forward in life hoping some Unionist will tell you Westminster’s Parliament has sovereignty over Scotland. THEN YOU CAN RIP THEM A NEW ONE!
I am, as always
Yours for Scotland
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