It is a fundamental principle of the Scottish constitutional debate that the people of Scotland constitute the sovereign body in this land, not the Westminster Parliament, not Theresa May or any other British Prime Minister. The people of Scotland have asserted their sovereign rights ever since the Declaration of Arbroath of 6 April 1320. According to many it was one of the first ever declarations of popular sovereignty, presaging modern democratic understanding by many centuries. The Declaration asserted that the independence of Scotland, and by implication the choice of the form of Scottish government, was the prerogative of the Scottish people, one which no monarch could usurp.
The modern incarnation of the Declaration of Arbroath is the Scottish Claim of Right of 1989. The Claim of right asserts that the people of Scotland possess the sovereign right to determine the form of government best suited to their needs. Despite the Treaty of Union, this is a right which is inalienable. It is a right which cannot be usurped by any monarch, nor by implication by any Prime Minister who sees their authority deriving from the sovereignty of the Crown in the Westminster parliament. The principle asserted in the Scottish Claim of Right in 1989 remains the principle underpinning not just the Scottish independence movement, but underpinning the entire edifice of Scottish governance, encompassing both the Holyrood and Westminster parliaments.
That right was reasserted yesterday in the House of Commons, amidst the jeers, boos, and catcalls of Conservative MPs. David Cameron’s respect agenda is working out really well, isn’t it. It died when that Tory MP shouted out “suicide” when Ian Blackford asked what options were open to Scotland within the UK.
The debate was called at the insistence of the SNP, in order to express in the chamber of the House of Commons that the Scottish Parliament has rejected those parts of the EU Exit bill which impact upon the devolution settlement. It was a reminder to the Conservative government that it does not have the right to use Brexit to usurp the will of the Scottish people as expressed during the referendum of 1997, and reinforced by the promises and commitments made to the people of Scotland by the anti-independence parties in 2014.
The significance of the Claim of Right is that Westminster only governs Scotland because the people of Scotland consent for it to do so. If that is to have any meaning at all, then the people of Scotland have the absolute right to withdraw that consent. The people of Scotland do not need to ask Westminster’s permission in order to consider whether we wish to withdraw our consent. If you have to ask permission in order to consider whether you wish to withdraw consent, then you have no right to withdraw consent. That would mean that absolute sovereignty in Scotland rests with the Westminster Parliament, and not with the people of Scotland. It means we’re not a partner, not a constituent part of a union, it means that in the eyes of the Westminster government there is no substantive difference between Scotland and an English county council. We already know that that is precisely how they see is. That is why the union is as good as dead.
For the entire period of the existence of this so-called Union, Westminster has acted as though that was the case, as though it possesses absolute sovereignty in Scotland. But that’s only because the people of Scotland have tacitly permitted it to do so. For most of the existence of the UK the Westminster Parliament was the only elected forum through which Scotland could express its democratic will. That was why Margaret Thatcher said back in the 1980s that if the people of Scotland wanted independence, all that they had to do was to vote for an SNP majority amongst Scottish representatives to the Commons.
We can withdraw that permission at any time we choose, and we can do so through the means of another elected body which represents the whole of the people of this country. We have such a body in the form of the Scottish Parliament. The Westminster Parliament might have drawn up the Scotland Act with the express intention of reserving all sovereignty to itself, but the point of the Claim of Right and the long tradition of Scottish constitutionalism upon which it rests is that no parliament can abrogate the sovereignty of the people of Scotland to itself.
The significance of the Claim of Right is that if another body representing the collective will of the people of Scotland possesses a mandate for an independence referendum, no UK government has the right to prevent it. What the Claim of Right means is that the people of Scotland do not require anyone’s permission for an independence referendum. It is a reminder to Westminster that the UK is a multinational state, founded by the union of two sovereign nations. Sovereignty in the Kingdom of England is founded upon the sovereignty of the crown in parliament. Sovereignty in Scotland is founded upon the collective will of the people of Scotland.
Scottish popular sovereignty didn’t end with the Treaty of Union in no small measure because the Treaty of Union itself specified that the institutions of the Scottish state, other than Scotland’s old parliament, were to continue unaffected. Scots Law was not subsumed into English Law. Scottish sovereignty was to be exercised by the Westminster Parliament, but it was not abolished by it, nor was it subservient to it. That remained the case as long as there was no other elected body possessing a mandate from the people of Scotland as a whole.
Any body elected by the people of Scotland as a whole, and accountable to the people of Scotland as a whole, can bring such a referendum about if it possesses a mandate from the people of Scotland to do so, because it’s the people of Scotland who are sovereign. Sovereignty means we don’t need to ask or to beg, we require no one’s blessing. It means that Westminster’s permission is not required. Theresa May can say no, but we are the people and we can say yes. It would be fitting indeed if we were to have reasserted the sovereign right of the people of this country by the week of 6 April 2020, the 700th anniversary of the Declaration of Arbroath.
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