There has been much fuss made (mostly by the SNP) recently after Scottish Nationalist MPs tabled a motion in the House of Commons that tried to assert the ultimate sovereignty of the Scottish people over everything else, and that this gave them the right to call referenda on independence whenever they wanted. This claim was based on the 1689 Claim of Right that did indeed assert the ultimate sovereignty of the Scottish people. Amazingly, this motion did actually pass, and the Commons has accepted the Claim of Right as well as, apparently, the right of the Scottish people to decide such matters. Reaction to this has ranged from joy on the nationalist side that the claim has been recognised and (so they think) they can just call referenda on independence whenever they want; to some Unionists expressing concern at this turn of events. Many have (sensibly) shrugged this off as an irrelevant stunt by the SNP. They are entirely right to do so, as this whole episode is no more than an irrelevant sideshow with no (real) implications for the constitutional debate in the U.K.
A simple look at the historical background to this stunt by the SNP highlights the whole fraudulent nature of this episode. The Glorious Revolution of 1688 had seen Dutch King William of Orange land with his army in England on 5th November 1688 at the invitation of Parliament. King James VII (of Scotland and James II of England and Ireland), attempted to resist William’s invasion. He then sent representatives to negotiate, which failed, and he was finally forced to flee England on 23rd December 1688. The Convention Parliament in England then declared that James, as King of England, had in fact abdicated the Government, and issued a Bill of Rights on 13th February 1689 offering the Crown of England to William and Mary. Meanwhile, the Scots found themselves facing a more thorny constitutional problem. As James had not been present in Scotland during this crisis and had not fled from Scottish territory in December, it would be highly dubious to make the assertion that he had abdicated the Scottish throne.
Therefore, a Convention of the Scottish Estates convened to consider letters received on 16th March 1689 from the two claimants to the Crown. On 4th April they decided to remove James VII from office, employing George Buchannan's argument on the contractual nature of monarchy as supporting evidence. Later in April the Convention adopted the Claim of Right and the Article of Grievances, laying out what they saw as the contemporary requirements of Scottish constitutional law. It also declared that, because of his actions in violation of these laws, James had forfeited the Scottish throne. The Claim of Right bolstered the position of parliament within the Scottish constitution at the expense of the royal prerogative. Herein lies a very important point. The original Claim of Right concerned the rights of the Scottish Parliament over the royal prerogative (in much the same way that the 1688 Bill of Rights in England had asserted the ascendency of the English Parliament over the Monarchy).
The Claim has been invested with a spurious association with the rights of the Scottish people (or electorate) by modern day nationalists who have deliberately misinterpreted it through either deliberate guile with intention to deceive or ignorance of the facts of history (or a mixture of both). Yes, the original Claim of 1689 may have talked about ‘the people’, but they weren’t referring to the electorate of Scotland at all. They were simply trying to bolster the power of the Scottish Parliament over the Crown. Thus, the SNP’s assertion that the claim gives them the right to call another independence whenever they want as they are the elected representatives of the Scottish people who hold sovereignty under the Claim is simply completely spurious and based on a misunderstanding of the facts of history.
This ignorant misunderstanding of history was born during the campaign for a Scottish assembly in the 1980’s. The Campaign for a Scottish assembly, a group that lobbied for the setting up of a new Scottish parliament produced a document called ‘A claim of Right for Scotland’ which gave birth to the misconceived notion that the 1689 Claim meant that sovereignty laid with the Scottish people and not the House of Commons. This document was signed by most, but not all, Scottish MPs (the late great Tam Dalyell was a notable exception) on 30th March 1989. The SNP debated the Claim in the Holyrood Parliament in January 2012.
In reality, the Claim of Right has never had, or, it is very apposite to point out, claimed, any legal force. It is simply a nebulous constitutional construct that has no power in reality to influence politics. However, some imbue it with constitutional significance in relation to Scotland which it simply doesn’t have in reality and practice in order to gain spurious political advantage. The main culprits behind this are the SNP.
Unionists do believe that the people are sovereign-the entire people of the U.K. who hold sovereignty in their hands and have the ability to control and direct ultimate power under the U.K. Constitution. In the U.K., it is the electorate who control the direction that politics takes (putting current arguments about the left-liberal elite and their hijacking and control of the U.K. to one side for a moment) under our constitution, not the politicians or anybody else. The electorate of the entire U.K. authorise their local MP to sit in the House of Commons and give their mandate to pursue a set of policies that are clearly laid out in their election manifesto. In this way, it is the U.K. electorate that exercises ultimate control over the political process and it is how a democracy should work. Power flows from the bottom up. The politicians serve the people, not the political elite manipulating the agenda to serve their own purposes. It is the SNP, a clique of elitist politicians, who are attempting to use a spurious point of constitutional law for their own political ends under cover of acting in the name of the people.
It is Unionists that desire to deliver power to the people, not the nationalists. Administrative devolution (de-centralisation) is a very effective and easy way of delivering this. The ineffective, costly devolved legislatures would be abolished (no Holyrood, Welsh Assembly or Stormont) and power over as many areas as possible would be devolved to the relevant Secretary of State (for Scotland, Wales and Northern Ireland). The principle of ‘If it can be, devolve it’ (administrative devolution max it should be christened) would be applied. This ensures that power is kept localised to the regions of the UK, who still control their own local affairs and democracy is kept close to the electorate. Any matters that affect the U.K. as a whole would remain within the remit of the House of Commons. An added bonus to this idea is that the unitary integrity of the U.K. is one hundred per cent guaranteed as there is no devolved legislature though which nationalism can push for independence referenda, a big fault in the concept of legislative devolution, as the experience of the last twenty years has proved beyond doubt.
It is indeed the people that wield ultimate political power in the U.K., in the manner described above, but it is the House of Commons that still has constitutional sovereignty over the devolved legislatures and retains the ability, under constitutional law, to abolish them by repealing the Parliamentary acts that set them up in the first place. Consequently, the SNP’s assertion that the Claim of Right gives them the power to call referenda whenever they want is clearly fallacious, as, in addition to the reasons given above, it is still the Commons that holds sovereignty under constitutional law over the devolution process, not Holyrood or anybody else.
Power to the people! That’s what Unionists want to deliver to all the citizens of the UK. This is best achieved through a thoroughgoing process of administrative devolution, which de-centralises power to the constituent parts of the United Kingdom and keeps democracy close to local electorates. It is Unionists that are the real democrats trying to disseminate power to ordinary citizens.
© Stephen Bailey 2018.