On the day in which the SNP government sets out its proposals for a referendum on Scottish independence, OurKingdom publishes a recent talk given by Canon Kenyon Wright in which he examines how the principle of popular sovereignty, asserted in the Claim of Right by the Scottish Constitutional Convention, which he chaired, can be realised in today's Scotland and the implications this holds for the UK state.
Sovereignty; The People Decide - But how?
The People Decide – The Claim of Right
“We hereby acknowledge the sovereign right of the Scottish people to determine the form of government best suited to their needs”
20 years ago, at the first meeting of the Constitutional Convention in the august setting of the Kirk’s Assembly Hall, and as the starting point for the making of Scotland’s Parliament, representatives of the broadest cross section of Scottish society in living memory lined up solemnly to sign that Claim of Right. The 160 signatures on that Claim included not only the great majority of our MPs, MEPs and Local government, but also representatives of the Trades Union movement, the Churches, Academics and sections of the business community. Iaian McWhirter wrote that they all “lined up before the moderator’s chair , like schoolchildren at assembly, to sign a Declaration of the Sovereignty of the Scottish people – marvellous political theatre”
True, but it was much, much more. I formally handed over the signed Claim to Donald Dewar and David Steel the day before the new Parliament first met in 1999, and it now rests in the Donald Dewar room at Holyrood. It will one day, I am sure, be recognised as a watershed in Scottish democracy, of major historic constitutional significance.
First, it roots the Scottish Parliament firmly in our historical constitutional tradition. It is in continuity with the 2 previous Claims of Right in our history – 1689, when the then Scottish parliament declared James VII deposed because he had “turned a legal limited monarchy into an arbitrary despotic power and in 1842, when the general assembly of the Church of Scotland issued such a Claim against the right of Westminster to impose patronage on Scotland.
The important principle which unites all three Claims, is constitutional - the rejection of the absolute authority of the Crown, or the Crown in Parliament, to impose policy or governance on Scotland against her will. Lord President Cooper, arguably the greatest Scots lawyer of the last century stated “the principle of the unlimited sovereignty of parliament is a distinctively English principle, which has no counterpart in Scots constitutional law”
That golden thread which runs through our history goes back even further – to the Declaration of Arbroath of 1320. Its stirring call to freedom is often quoted, but for me the most important part of it, which puts it so far ahead of its time, is the clear declaration that even the great Robert the Bruce is “King, not only by right of succession according to our laws and customs, but also with the due consent of us all” and goes on to warn him that should he betray that trust “we would instantly strive to expel him as our enemy and the betrayer of his own rights and ours, and we would choose another king to rule over us who would be equal to the task of our defence”
A Commissioner at the Kirk’s General Assembly in 1989 summed it up more succinctly – “They said to Robert, you might be the King, but ye dae as ye’re telt, or ye’re on the burroo”
The long task of restoring Scotland’s Parliament began not with a political purpose alone, but with a constitutional principle. Our Parliament therefore, enters into this heritage, and will be judged by it.
Why a Claim of Right now?
I am on record as saying that the whole work of the Convention was “a series of minor miracles”. Surely the greatest miracle of all was that so many should commit themselves to a claim of sovereignty that implicitly and definitively denied the absolute authority of Westminster in constitutional matters. It is not surprising that many politicians would dearly love to forget the Claim they signed, and consign it to the dustbin of history. We must not allow that to happen. The Constitutional Commission is in the process of asking all who signed 20 years ago, and the organisations on whose behalf they signed, to reaffirm their commitment to the claim of sovereignty. It will be interesting to see the result! Although the SNP did not join the Convention, and therefore none of its leading members were there to sign the Claim, I think it is safe to assume that their commitment to the principle of the Claim, the sovereignty of the people of Scotland, is beyond doubt.
The clear motivation for the Claim was not the rejection of any particular policy or party, but the firm rejection of the British political system, and the hope that Scotland could help to reform that system.
If any missed that, they were myopic for it was all there from the start for all to see..,
It was there in the earlier Claim of Right document of 1988 which should really have been entitled “A Call for a Claim of Right” and which proposed the Convention. They said “Scots can now show enterprise by starting the reform of their own government. They have the opportunity in the process to start the reform of the English Constitution; to serve as the grit in the oyster which produces the pearl.” “The British government is so decayed that there is little hope of it being reformed within the framework of its traditional procedures”
It was there in the Church of Scotland Report of 1989 which led the Churches representatives on the steering committee to propose that we begin with the Claim of Right. . They said “It is not possible to resolve the question of the democratic control of Scottish affairs…..apart from a fundamental shift in our constitutional thinking away from the notion of the unlimited or absolute sovereignty of the British parliament towards the historic Scottish and Reformed constitutional principle of limited or relative sovereignty” Any settlement “must be built upon philosophical foundations that are more coherent and credible than the notions which underpin the existing British constitution.”
It was there in the rejection by the politicians at that stage of the very word “devolution” with its bad memories of the 1979 referendum, and its implications of continued Westminster sovereignty. The Liberal Democrats called for the Treaty of Union to be renegotiated and their leader Malcolm Bruce declared “Devolution is Dead” Even the careful Donald Dewar said “Scots are going to have to learn to live dangerously for a while”, and in his address to the first meeting of the Convention – minutes after signing the Claim – he said “The aim must be to give Scots proper independence whilst still retaining our links and making a major contribution to the United Kingdom” The official Labour Party policy became “Independence in the UK”
The Claim of Right and the process
The Claim had a profound effect on the way the work was done.
The Convention was broadly though not completely, representative of Scottish society, and went far beyond political parties
We worked by a consensus method “virtually unique in British politics” which firmly rejected “the ritual confrontations of British politics”
We adopted “the principle of subsidiarity” – the limitation and sharing of power at different levels, and therefore wanted entrenchment, “some way of formally embedding the powers and position of Scotland’s Parliament”. This ultimately proved impossible within the British constitutional system.
We hoped and planned for “a way of politics radically different from the rituals of Westminster; more participative, more creative, less needlessly confrontational” – a hope only partly fulfilled
We planned for a Parliament that would “develop in partnership with Scottish society and with other levels of government, an integrated strategy for sustainable development in Scotland.” This hope seems nearer fulfilment with the widely praised Climate Change legislation in Scotland..
In one crucial area, the Convention failed and was inconsistent – and I deeply regret that I did not make an issue of this at the time. We began with a statement of the sovereignty of the people in constitutional matters, but went on to include these in the list of powers reserved to Westminster. We thus implicitly accepted the right of the UK Parliament to have the final say on our constitutional future and how we are governed – implied by the very use of the word “devolution”. We failed to seize the opportunity to tackle the fundamental problem of the incoherent and undemocratic nature of the unwritten UK constitution.
The Irresistible force of Scotland’s sovereignty met the Immovable object of the British State, - and gave way!
II. The People Decide - But How?
The Unfinished Business
There has never been a better time raise again these fundamental constitutional questions. The last few years have seen a growing conviction that the Scottish constitution must. reflect our freedom from, and possibly our influence on the reform of, a UK constitution manifestly no longer fit for purpose
In 2005, Chris Patten wrote “We have an electoral system riddled with unfairness; a bicameral legislative structure that the government reorganises at regular intervals on the back of an envelope; courts whose judges are attacked by the executive because it does no care for the way they seek to protect our liberties; local government gutted by manic centralism; and an executive that displays under both Labour and Conservative leadership the attributes of what Lord Hailsham called ‘an elective dictatorship’
After 10 years of devolution in Scotland, and in an atmosphere of growing contempt for politics at the UK level, fuelled by the expenses farce, but actually systemic and constitutional, this is surely the time to reassess and choose our future.
Some argue that these concerns about how we are governed are somehow in conflict with the need to tackle the major economic issues. The opposite is the truth. The experience of devolution, however flawed, surely demonstrates that how we are governed deeply affects the ability of our government to deliver in all areas.
There are two major areas in which the sovereignty of the people can be exercised. In major matters of constitutional change, that will be through a Referendum.
In matters of day to day governance and decision and policy making, that will be through developing the structures and institutions of a more participative democracy.
Towards an effective referendum
I now want to put to the Scottish government, a clear proposal that would fulfil the intentions of the Claim of Right, and give the people a real choice.
The Government’s intention is to hold a referendum that would in effect offer two alternatives – the Status Quo of Devolution (with whatever of the Calman Report survives) as against Independence. That proposal in my view, does not offer the people a wide enough choice, does not sufficiently honour their sovereignty, and fails to represent the views of many Scots, who want a Scotland beyond Devolution and with substantially enhanced powers, but who do not favour complete independence
Alongside the two options proposed, there should be a third option, with the nature of the Referendum carefully planned to deliver the result which most accurately represents the will of the people (There are useful precedents for this)
The name I propose for that third or middle option is “Secure Autonomy" though the actual name could be debated.
Secure Autonomy would begin with the principle of sovereignty, and therefore reject the name “Devolution”.
The powers of the autonomous Scotland would certainly include constitutional matters, and full fiscal autonomy, though much more work needs to be done both on powers and on the implications for the Union.
Links with a reformed Union, probably of a neo-federal nature, would be retained (There are comparable constitutional arrangements in Europe).
There can be no illusion that, if this option were successful, Scotland would come up, as we did, against the power and assumptions of the British State – weakened as it now is however by its own internal decay.
We must therefore insist that, whatever option the people choose, in the words of the Claim of Right “We assert the right of the Scottish people to secure its implementation”
Much can and must be negotiated, but sovereignty is non-negotiable
The Constitutional Commission of which I am president has already published a draft Constitution for Scotland, and more details of the Secure Autonomy option both prepared by Elliot Bulmer (constitutionalcommission.org) and we would welcome the widest conversation on these ideas .
Towards a participative democracy
A second proposal to the government would cover the peoples’ sovereignty in day to day decisions – an area in which the intentions for the Scottish Parliament were only partly realised. I ask the government to set up a small group, including some people from the creative and cultural sector, with the specific task to prepare within a set time, proposals for the institutions, policies and mechanisms that would make Scotland a more genuinely participative democracy.
Scotland is now ready to take that next step which the Claim of Right hoped for but could not achieve. The immovable object is shaky and vulnerable.
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