Few seem to appreciate the constitutional implications of the Scotland Bill, currently making its way through Westminster Parliament. The UK government is claiming the right to change the devolution system without the consent of the Scottish people. Whether the Bill is good or bad news for Scotland, it reveals the power of Westminster to give and take away at will. In colonial America, it was just such a recognition of the sovereignty of British Parliament, prompted by the imposition of the 1765 Stamp Act, that led the people to demand independence. Could there be more than a superficial historical parallel?

The new Scotland Bill, currently making its way through the House of Commons, is the UK Government’s attempt to make good on its promise, pledged in May 2010 as part of the Coalition Agreement, to implement the proposals of the proposals of the Commission on Scottish Devolution (Calman Commission). 

Established by the three London-based parties as a unionist alternative to the SNP’s National Conversation, the Calman Commission was specifically intended to keep fundamental questions of sovereignty, democracy and independence – which lay at the very heart of the National Conversation’s debate on Scotland’s future – as far off the political agenda as possible. As sure as fig-trees cannot bear olives, the report makes for a depressing read, which even its jauntily optimistic title, “Serving Scotland Better: Scotland and the United Kingdom in the 21 st Century”, cannot disguise.

As Gerry Hassan has noted, the Commission proposals have nothing to do with Scottish democracy, and do not strengthen the union. Instead, the entrenched complacency, small-mindedness, timidity and parochialism of much of the Scottish political class is revealed. The leadership of a nation of five million is arguing about such petty trifles as the licensing of air guns, speed limits, and the right to raise a small fraction of its own revenue, as if it were nothing more than a largish county.

The resulting bill is an unexpected disappointment to those in Scotland who see full fiscal autonomy as a good in itself, or as a necessary next-step to independence.  The basic rate of income tax in Scotland would be cut by 10 per cent, and the block grant would be proportionally reduced.  The Scottish Parliament would then be able to set rates for the income tax top-up in Scotland, which might be higher or lower than 10 per cent. The structure of the income tax system, including tax bands, allowances and thresholds would continue to be reserved for Westminster.  Stamp duty land tax and Landfill tax would also be devolved. Aside from these financial provisions, much of the bill deals with matters which are, in themselves, of minor administrative importance – tidying up certain lose ends of the devolution system without daring to challenge its fundamental assumptions. 

The economic and fiscal provisions of the bill have already been dissected by several critical economists, most notably by Andrew Hughes-Hallett and Drew Scott.  They argue that the bill would cause a fiscal squeeze which is wholly to Scotland’s disadvantage.  This article broadly shares their view.  The “wee-pretendy” fiscal powers of the Scotland Bill are desultory, diversionary and probably unworkable.  They would do nothing to cure Scotland’s chronic economic, social and political dysfunction, and could well add to our problems.  Some nationalists go even further, interpreting the bill as an act of deliberate vandalism, intended to discredit the Scottish Parliament and to frustrate and delay the achievement of independence.

Few, however, seem to have appreciated the constitutional implications of the new Scotland Bill, and it is on that issue which I wish to concentrate.  

This lack of constitutional appreciation is unsurprising.  Having no written Constitution upon which to anchor our understandings or expectations, Scotland remains a constitutionally illiterate country.  We (by which I mean not only the overwhelming majority of ordinary citizens, but also most of our lawyers, politicians, journalists and academics, who should know better) have little grasp of even basic constitutional principles, as these are understood from Portugal to Poland and from Sweden to Sardinia.  Locked into the principle of the “Sovereignty of Parliament”, we, alone amongst the peoples of Europe, are incapable of distinguishing ordinary legal, fiscal and administrative matters from matters of fundamental constitutional significance.

The truth is that we have no Constitution, as that word is generally defined throughout Europe. This is a written, fundamental law, which sets out the institutions and powers of the State and the rights of the citizens, which is superior to ordinary laws and which can be amended only by a special process, often requiring a referendum. Instead, we rely on custom, convention, tradition, and political precedents.  These quasi-constitutional “rules” are not enforceable, are rarely defined, and can be broken at will without penalty.  They are, at best, “guides of propriety” to which the holders of power are encouraged, by the desire to avoid political controversy, to obey.

One of the supposed advantages of the British system of quasi-constitutional absolutism is its “flexibility”.  Flexibility works mainly for the benefit of those who hold power: it enables the Government to do what the Government likes, without being constrained by too many pesky rules.  Sometimes, however, the ratchet can work in the opposite direction.  If popular pressure forces the Government to grant a concession, a more “popular” convention can be created, which future Governments might then, if we are sufficiently noisy about it, feel politically compelled to honour. 

One such beneficial convention was set in 1997, when the UK Government held a referendum on Scottish devolution.  The convention was that the relationship between Scotland and the UK Government would be determined in accordance with the will of the Scottish people, expressed through a referendum.  Of course, there is nothing in the Scotland Act, or any other Act, which compromises the jealous sovereignty of Westminster.  The Queen-in-(Westminster) Parliament retains the right, otherwise asserted only by deities and despots, to create and to destroy at will, without seeking the leave or consent of any, and without bearing responsibility to any. 

Yet, despite this, a doctrine of “political entrenchment” had developed, arguing that the Scotland Act, owing to the referendum, was, in practice, granted some immunity from this awesome sovereignty.  On the basis of this convention, it was argued that we had some guarantee of control over our own political future and our own destiny:  Westminster would not take away what it had granted; our right to self-government within the Union was assured, safe as safe can be, and there was no need to worry.

The Scotland Bill upsets that convention.  The UK Government is claiming the right to change the devolution system by ordinary legislation without the consent of the Scottish people. 

In so doing, the bill exposes the inherent contradictions and weaknesses of being governed by vague and unenforceable conventions, rather than by a Constitution which is “founded upon common right and justice”, (to quote the Agreement of the People, 1649).  The “political entrenchment” argument has been revealed for the sham that it is, and the absolute sovereignty of Westminster over Scotland is revealed in all its brittle nakedness.  Attempts by certain nationalists to demand a referendum on the bill have so far met with no success; indeed, success seems unlikely, given the UK Government’s “we know best” attitude to Scotland.

We have been here once before.  In 1765, the British Parliament passed the Stamp Act, imposing excise duties on printed material in the American colonies.  The ostensible cause of this Act was the desire of a cash-starved British Government.  Its immediate effect was to galvanize colonial opposition to British rule. 

Until that time, British rule in the colonies had been distant and sporadic.  The prevailing attitude was one of benign neglect.  The rights of colonial legislatures to govern and tax colonists (a condition of legislative and fiscal autonomy which we would regard as “devolution max”) had, by custom and convention, been respected by both sides.  This new assertion of Westminster’s power brought home the reality, and inherent servility, of colonial status, as never before.

The Colonists were a constitutionally literate people, who were used to written Charters, and whose democratic valour had been honed in the daily functioning of their Town Meetings and puritan churches.   The constitutional implications of the Act did not go unnoticed.  Not only was the Stamp Act a fiscal burden, it was also threat to freedom of the press, a violation of the principle of no taxation without representation, and – most of all – a danger to the autonomy of colonial legislatures.  

The issue became revolutionary.  People arranged themselves into an informal “Stamp Act Congress”, to declare that “no taxes should be imposed on them, but with their own consent, given personally, or by their representatives” and, further, that “the only representatives of the people of these colonies are persons chosen therein, by themselves; and that no taxes ever have been, or can be constitutionally imposed on them, but by their respective legislatures.”  The colonists were not protesting against a tax.  They were denying the authority of the British Parliament to tax them, to make laws binding upon them without their own consent – in short, they were shifting sovereignty from Westminster to the people.

Such opposition caused the British Parliament to relent, and the Stamp Act was repealed.   The repeal was accompanied, however, by the Declaratory Act of 1766, which affirmed the principle of parliamentary sovereignty.  It asserted that the colonial legislatures were “subordinate unto, and dependent upon the imperial crown and parliament of Great Britain”, and that Westminster had “full power and authority to make laws and statutes… ….to bind the colonies and people in all cases.”

This assertion of the British Parliament’s unconstrained power to legislate for the colonies was interpreted as placing the colonists under “slavish” conditions of dependence.  Even if the British Parliament happened, on this occasion, to repeal the Stamp Act, it was doing no more than acting the part of a tactful and indulgent slave-master.  What had been rescinded could easily be re-imposed; what had been given could be taken away.  Once the principle of parliamentary sovereignty was admitted, the colonists would be enslaved to an arbitrary power, and it mattered little whether that power was, at any given moment, benevolent or repressive.  The people of the colonies realised that if Parliament could pass this Act, it could pass any Act – and, in fact, the “Intolerable” or “Coercive” Acts duly followed in predictably short order.

The colonists’ response eventually resulted in the Declaration of Independence and the creation of new constitutional democracies from Massachusetts to Georgia.  In almost all cases, the sovereignty of the Westminster Parliament was not replaced by the sovereignty of the colonial legislature – for that would merely exchange one master for another; rather, sovereignty was returned to the people, acting through a written Constitution.

The Scotland Bill could turn out to be Scotland’s Stamp Act.  It has immediate fiscal consequences, but potentially historic constitutional implications.  By altering the devolution system without recourse to a referendum, it overturns the convention that Scotland’s constitutional arrangements are to be determined by the people of Scotland – not by Westminster, not even by Holyrood, but by the people.  It reasserts the sovereignty of Westminster and its power to give and take away without having to obtain our leave or consent.  If this lordly prerogative is once admitted, it means that Westminster could abolish the Scottish Parliament, or whittle its powers into barest insignificance, without the people of Scotland being able to do anything to resist it.

Our future liberty, democracy, prosperity, and well-being, depend on how we react to this development.  One possible response – the response currently taken by the SNP – is to complain about the detailed fiscal provisions and economic effects of the bill, and then carry on with devolved politics as usual.  The disadvantage of this is that the authority of the Scottish Parliament, indeed of the whole notion of a Scottish proto-state, would be greatly damaged.  The absolute sovereignty of Westminster would soar over such trifling barriers as “the settled will of the people of Scotland” 

The Sewel Convention, by which legislation affecting devolved powers or institutions in Scotland ought not to be passed by Westminster without the agreement of the Scottish Parliament, provides only scant protection.  Even when the convention is honoured, of which there is no sure guarantee, it does nothing to protect the people, as opposed to the Parliament, of Scotland.  Nefarious deals done by parcels o’rogues in the past have warned us of the danger of relying solely on the grace and good will of Parliaments, even our own Parliament, to protect the rights of the people.

A bolder, and more democratic, response would be to declare the sovereignty of the people of Scotland, and thereby to deny the sovereignty of the Westminster Parliament.  This approach would not quibble about the terms and conditions of the Scotland Bill, but rather would deny the authority of “The Queen’s Most Excellent Majesty, by and with the advice and consent of the Lord Spiritual and Temporal, and Commons, in Parliament assembled” to unilaterally dictate its terms to Scotland. 

This would be an act of great courage, quite revolutionary in its intent.  It would not, however, necessarily lead to independence.  Secure autonomy, of the sort which respects the sovereignty of the Scottish people, could be achieved by means which stop short of full independence.  There are many in Scotland who feel that Scotland’s strategic interests would be better served through a “non-incorporating union” – rather than rushing into full independence.  A situation like that of the Channel Islands or the Isle of Man, where full fiscal autonomy and internal self government is granted, and where the British State takes care only of foreign policy, defence, and a few other incidental matters, might serve just as well, provided that these arrangements were secured from Westminster sovereignty by a written Scottish Constitution and by a Treaty of Union, clearly setting out the rights and limits of both parties.  Similar unions have existed before: the Austro-Hungarian Empire from 1867 to 1918, and the union of Norway and Sweden from 1814 to 1905, are just two well-known European examples. 

Of course, we could also reach the opposite conclusion, and decide that paying taxes to the rump of the British State for the privilege of being able to send our young men and women to die in Afghanistan, or to have nuclear weapons on the Clyde, or to represent us in the European Union, turns out to be a pretty raw deal.  In that case, the step towards full independence would be a short one, and easy to take.

I can see it now:

“We the people of Scotland, in order to form a civic-democratic community, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for Scotland…”

(We should stop copying the Americans at that point, and start learning from the Swedes and other European nations – who could teach us a thing or two about how write a Constitution).

Words like these might be a long way off.  The Scotland Bill, by itself, is unlikely to provoke such a radical response.   Just as the majority of American colonists were not ready to stand up against the sovereignty of Westminster in 1765 when the Stamp Act was passed, so the majority of the people in Scotland are not ready to take such a bold stand in 2011.  It is quite true, to quote Thomas Jefferson, that “mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms [of Government] to which they are accustomed”. 

This might change in the difficult years of commotion and unrest ahead. There is no constitutional provision which would prevent the Con-Dem coalition from imposing tuition fees on Scotland, privatising the Scottish NHS, or selling off Scotland’s forests.  So long as the sovereignty of Westminster is admitted, no amount of devolution, even “Devolution Max” or fiscal autonomy, would offer constitutional security to our common weal, nor protect us against wanton acts of destruction.  Then, perhaps, we will come to admit, with Jefferson, that “when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such Government, and to provide new guards for their future security.”

Some suggest that this scenario is unlikely – that although it is theoretically possible for the Westminster Parliament to impose itself on Scotland in that way, and to enforce its agenda on an unwilling people, in practice it would be politically unwise, even unthinkable, for them to do so.  This is not the place to speculate on the likelihood of possibilities.  I’m not predicting that the UK Government will necessarily act in such a way, only saying that there is nothing of constitutional force to prevent it. 

Once it was possible to argue that the Scotland Act was politically, if not constitutionally, entrenched, and that any attempt to change it against the settled will of the people of Scotland would be politically unthinkable.  That argument was weak at the best of times.  The abolition of devolved government in Northern Ireland had already set a precedent that Westminster could, for reasons deemed sufficient to itself, unilaterally re-impose direct rule.  Now this argument is not only weak but untenable: the new Scotland Bill, much more than previous minor amendments to the Scotland Act, negates it.  With a blatant display of Westminster’s ultimate and irrepressible sovereignty, it demonstrates that the constitutional future of Scotland, under the present system, lies not in the hands of the people of Scotland – where it ought, by democratic right, to reside – but in the hands of a London-centric political class, aided and abetted by rent-seeking local agents in the Unionist parties.

We have a choice.  Either to bow before the Declaratory Act, and surrender all of Scotland’s rights to “dependence upon the imperial crown and parliament of Great Britain”, or we boldly maintain, in the words of the Scottish Claim of Right, “the sovereign right of the Scottish people to determine the form of Government best suited to their needs”.  There is no real middle ground.  Either the Crown-in-Parliament is sovereign, or we the people are sovereign.  Either Acts of the Westminster Parliament are supreme, or all laws are subject to a supreme Constitution which we approve and amend by referendum.  Either we are indulged at the whim of a distant master, or we are free citizens with a Constitution of our own.  

Elliot Bulmer is the Vice-President of the Constitutional Commission.