Democracy and Scottish, Popular Sovereignty – A Simple Guide

People have been asking for a guide to what Salvo means by Scottish Popular Sovereignty, here Sara Salyers provides it. It is lengthy but it is important information and supplies much of the information people were seeking.

“In free governments, the rulers are the servants and the people their superiors and sovereigns”.

What do we mean by democracy? Most of us think we know. But we might be surprised by what we really mean when we say that something is democratic or undemocratic. 

We think of democracy as fairness, something inclusive and respectful of the will of the people – and undemocratic government as unfair, high handed and indifferent to the will of the people. So we mean that democracy represents a kind of justice a recognition of civil rights and liberties, the kind of government that upholds those right and reflects the will of the people. In fact, democracy means far more than that.

The word democracy comes from two Greek words, ‘demos’ (people) and ‘kratos’ (power or authority). Democracy, then, simply means the authority of the people. Or popular sovereignty. How that authority is exercised, or is permitted to be exercised, in any state and any political system, determines the kind of democracy which exists. To put it another way, the greater the degree of popular sovereignty, (or ‘people power’), in any country, the greater the degree of democracy.

A common misconception is that democracy is the same thing as the right to vote. But the right to vote is only a practical mechanism for democracy, perhaps the only realistic mechanism in today’s world but it is still only a mechanism. It is not democracy in and of itself. Strange as this might seem, the right to vote does not always mean real democracy at all,while the lack of a universal franchise does not always mean the absence of democracy.

Theoretically, a consensus-based system (where public participation in, veto of, and amendment to any and all government policy are the controlling factors), would satisfy the requirements of full democracy (popular sovereignty). This would be true, for example, in a monarchy where no representatives at all are elected. In traditional indigenous communities where numbers are small, this kind of ‘consensus government’ has been, and in some places still is, practised. It may be unrealistic in our supposedly civilized world but it is important to recognise that it is notundemocratic. Quite the reverse.

On the other hand, a ‘democratic’ system like that in Singapore, might provide a universal franchise, where everyone has the right to vote – but only for a limited range of representatives. Singhalese representatives belong to a long-established political elite and there is virtually no public participation or means of public influence on government policy. How much democracy can be said to exist, even if everyone can vote, when there is little or no popular sovereignty?

Sovereignty of the People

This is the constitutional principle that ultimate political power resides with the people, who have the right to govern themselves and to determine the form of government they wish to live under. This principle explicitly underpinsScotland’s constitutional contract. It is explicit because it was made so by the Convention of the Estates in the Claim of Right Act 1689. It continues to underpin the Scottish constitutional contract because it was given ratification and protection under pain of treason by the Scottish Parliament in 1703 and was ratified again by the English and Scottish Parliaments in 1706 and 1707 as a condition of the Union. 

We hear a good deal about Scottish popular sovereignty from our Scottish, pro-independence political parties and politicians, but just what kind of sovereignty are they talking about?

A Confusion of Sovereignties

The kind of popular sovereignty endorsed by most political theorists (and most of our politicians), is based on the ‘social contract school’ which emerged in the 17^th – 18^th centurieswith Thomas Hobbes (1588–1679), John Locke (1632–1704), and Jean-Jacques Rousseau (1712–1778). This version of popular sovereignty says that any government requires the consent of the governed, the people, for legitimacy and any government, therefore, that has the consent of the people is an expression of popular sovereignty. By this reasoning anyelected government is an expression of this sovereignty. (But then, so are popular dictatorships.)

The sovereignty of the Scottish people was not part of this political development. It can be traced from the Declaration of the Clergy in 1310, the Declaration of Arbroath in 1320, through the right to rebellion of 1450, the treason laws which identified the people as the Crown of Scotland, the practice and Act of Salvo by which any parliamentary legislation could be challenged if it violated anyone’s rights, to the Claim of Right in 1689. The Claim of Right enacted the lawful right of the people to overturn unjust laws, to overthrow an oppressive government and to choose, in its place, whatever government they considered to be in their best interests. 

This is very different from the social contract sovereignty espoused by our modern politicians, Scots as well as English. Scottish popular sovereignty is unambiguous. It is not merely the consent of the governed as imagined by the social contract school. It is not transferred by the people to their representatives nor can it be exercised on their behalf by any government. 

How can we know this? Because the sovereignty of the Scottish people is the sovereignty of the absolute monarch. It is the sovereignty of the ancient Scottish Crown which represents the Community of the Realm and whose absolute authority was represented by the monarch but not embodied inthe monarch, as in England. This is why Scottish kings or queens were only the ‘first among equals’. The Scottish Crown could never, lawfully, be transferred or surrendered to any foreign power – a lesson learned from history and made a condition of Scottish, royal accession :

the Rights and Rents, with all just privileges of the Crown of Scotland, I shall preserve and keep inviolate, neither shall I transfer nor alienate the same

(from the Scottish Oath of Accession 1689)

Nor, by any mechanism in Scotland’s constitutional history could it be transferred to a parliament of elected representatives when, as the Claim of Right Act explicitly demonstrates, these are as much subject to summary dismissal by the Sovereign (the People), as any monarch. 

Scotland’s governments, therefore, do not rule by the consent of the people. They govern by consent of the ruler, the People,by the power devolved to them, on condition that they meet their constitutional requirements and with the expectation that this power may also be withdrawn. 

The constitutional position of Scotland, then, is that the People are politically, judicially and territorially sovereign, the final and absolute authority of the nation. They do not transfer or delegate that sovereignty but they devolve their power to those who govern – conditionally upon just, lawful and obedient government. (Obedient to the terms of and conditions of the power they receive.)

Once we understand that this is what Scotland is entitled to today, even within this fraud of a Union, the pressing question becomes what form of modern democracy adequately expresses this absolute authority, this sovereignty of the people? The obvious answer is, whatever form of democracy offers the fullest expression of that absolute authority. To echo the Claim of Right of 1989, that is and must be ‘the form of government best suited to (our) needs’. 

A Choice of Democracies

There are a wide range of internationally recognised mechanisms which reflect a fair and democratic society. The more of these that exist, the greater the degree of democracy(people power) and, conversely, the fewer that exist the less democratic the society. These include the right:

• to influence the political system, usually through elections

• to freedom of speech, including the right to criticize the government

• to freedom of assembly

• to freedom of religion, belief and political affiliation

• to protest

• to fair and equal justice, 

• to limited detention and speedy and transparent charges and hearings

• to a free and fair representation including jury trial in criminal proceedings

• to public participation in policy development

• to public consultations and informal opportunities for public input and influence

• to government transparency through freedom of information

• to a free, truthful and unbiased media

• to recall elections

• to independent impeachment procedures

• to judicial challenge/veto of laws or policies especially those infringing human and civil rights or contrary to the will of the majority

• to citizen initiatives, including citizen led referendums

• to direct public control over the national constitution

Broadly speaking, there are four recognised forms of democracy in the world today and each provides at least some of those mechanisms that empower the people of a state:

1. Elite (closed) democracy 

Elite democracy severely restricts the ability of a peopleto hold their representatives accountable or to shape and influence decision-making processes. The characterisation of a state as an elite democracy may be straightforward, as in the case of Singapore where atechnocratic ruling elite has been in power for several decades. Although there are regular elections, the political landscape is dominated by the People’s Action Party (PAP) and its affiliated elites.

It becomes harder to identify in states where there is a strong tendency toward elite or closed democracy but where elements of more accountable democracy also exist. Overall, however, it is the lack of most of the mechanisms listed above that defines an elite or closed democracy. This characterisation is further supported by government restrictions on internationally recognised human and civil rights.

2. Representative Democracy 

In a representative democracy, political decisions are made by elected officials within the framework of established institutions – parliaments or congresses. These representatives are accountable to the people and are expected to act in the best interests of their constituents. The principle of popular sovereignty is realized through the election of representatives who act as intermediaries between the people and the decision-making processes.

In a representative democracy, the ability of those elected to represent the electorate is guaranteed by at least some level of accountability, which in turn depends on public access to accurate information, both through a trusted and independent media, the freedom of journalists to report on government – or corporate or personal – corruption and wrongdoing without fear of reprisal, and through freedom of information policies. 

It depends on the rights to protest and assembly, to criticize the government openly, to strike, march or boycott and to be assured the judicial system will be applied fairly and evenly, never used to silence political dissent. 

Something to consider is the contrast between the claim of the United Kingdom to be a representative democracy and the very visible ‘closed shop’ of current government. Consider the contrast between the influence of a tiny and privileged elite and that of the majority of the population, between the provisions for the financial interests of that elite and those for the wellbeing of the people. 

When these are placed alongside the restrictions of free speech (criticising or exposing the government wrongdoing and protesting the monarchy, for example, may result in arrest), the treatment of refugees in violation of international laws and agreements, the suspension of habeas corpus and the increase in summary police powers, among many other indicators, it is abundantly clear that we have crossed the boundary between representative and closed democracy. We appear to be travelling out of the territory of democracy and towards dictatorship.

3. Participatory Democracy: 

Participatory democracy enables active publicparticipation in the decision-making process. It involves citizens directly in policymaking, allowing them to have a say and influence outcomes. This can take the form of public consultations, citizen assemblies, or other mechanisms for direct involvement, ensuring citizens have a direct role in decision-making. Participatory democracy can be recognised by the presence of all but the last five of the mechanisms of ‘people power’ listed above.

4. Direct democracy

In this a system of government political power is exercised by the people themselves. They participate in the decision-making process and have a direct influence on policy, including the opportunity to vote on laws andpolicies and to create laws and policies on importantissues, either through referendums, initiatives, or town hall meetings. This form of democracy allows for maximum citizen involvement. It is the only expression of sovereignty which includes the right of the people:

• to recall elections

• to independent impeachment procedures

• to judicial challenge/veto of laws or policies especially those infringing human and civil rights or contrary to the will of the majority

• to citizen initiatives, including citizen led referendums

• to direct public control over the national constitution

In Switzerland, where every politician refers to the people as ‘the sovereign’, citizens have the right to veto or propose legislation, initiate referendums, and vote on a wide range of issues. The political system allows for frequent popular votes, ensuring citizens have a direct say in policymaking. An informed population is essential for the exercise of such sovereignty and this means that full and unbiased reporting and public access to information is a prerequisite as well as a democratic benefit of this type of democracy. (You can hear more about the way in which popular sovereignty is practised, successfully, in Switzerland by clicking on the link above. 

‘The Form of Government Best Suited’ to Scotland?

This is not a difficult choice to make with respect to what most closely resembles our own constitution, the character orthe aspirations of most Scots. Direct Democracy provides a modern and modernised expression of Scotland’s principle of popular sovereignty.

But it offers even more than that. It could check the headlong rush towards authoritarianism, increased government control, political and corporate unaccountability, unbridled profiteering and injustice and the worsening of thehumanitarian disaster that has already overtaken almost a quarter of our population. All of which our present political system is helpless to prevent. 

It is sane, workable, humane, and hopeful – and it is already guaranteed by that famous and unchallenged assertion that,(under the Claim of Right, 1689 as affirmed by Scotland’s Claim of Right in 1989 and agreed without division by Parliament in 1989), the people of Scotland are sovereign and have the right to determine the form of government best suited to their needs!

We could and should demand and get, by any peaceful means at our disposal, real Scottish popular sovereignty, direct democracy, now. Without waiting for independence. As a ratified condition of this toxic Union.

And once direct democracy is achieved? Well, then independence is merely a popular referendum away.