Does the Scottish people's authority trump the UK Supreme Court's?

DOORSTEP ANSWER

Gordon Brown signed the 1989 Claim of Right that said it is “the sovereign right of the Scottish people to determine the form of Government best suited to their needs”. If that was correct in 1989, surely it is correct today.

WHAT IS POPULAR SOVEREIGNTY?

Sovereignty refers to the authority of a state to govern itself. In previous eras, that authority was deemed to rest on the will of the deity or on the hereditary nature of the Crown. In modern times, sovereignty rests on the democratic will of the people, however defined. The American Declaration of Independence famously asserts that governments derive just powers only “from the consent of the governed”.

However, the principle of consent contains ambiguities when there are different levels of elected governance within a single state.

WESTMINSTER’S CLAIM TO SOVEREIGNTY

In the UK, sovereignty is claimed presently by the UK Parliament. The Scottish Parliament is deemed to be a subordinate entity created by Westminster and subject to Westminster’s ultimate fiat.

According to the UK Parliament’s official website, Westminster is “the supreme legal authority in the UK, which can create or end any law”. The website goes on to say explicitly that the parliament “could repeal” the various devolution acts if it so wished. By this definition, the Scottish Parliament – while elected – is ultimately subordinate to Westminster on legal, constitutional grounds.

This constitutional arrangement contains an obvious anomaly when the Scottish electorate votes differently from the rest of the UK. The will of the UK majority as expressed through Westminster is then in conflict with the will of the Scottish electorate expressed through Holyrood.

As we have seen in the recent UK Supreme Court decision to reject the right of the Scottish Parliament to legislate for a second independence referendum, the courts will always find in favour of Westminster as the “sovereign” legislative body.

In recent times, the Executive has grabbed more powers from the UK Parliament. As a result, the courts have begun to qualify the way governments use their prerogatives. This was the case when the UK Supreme Court and the Scottish Inner Court ruled that Boris Johnson was wrong to prorogue Parliament in September 2019. But as the Supreme Court argued in this case, it was merely defending the sovereignty of Parliament from the Executive, not challenging that sovereignty.

THE 1689 CLAIM OF RIGHT

In summary, the British constitution as it exists subordinates the sovereignty of the Scottish people and Scottish Parliament to that of Westminster. However, some have continued to argue that Acts and conventions introduced into UK law at the time of the Union still remain valid, and that these give a legal basis for a separate Scottish sovereignty even with the existing constitutional framework. A case in point is the Claim of Right of 1689, quoted recently in the 2019 case against the illegal prorogation of Westminster.

READ MORE: An exploration of the importance of the original Claim of Right

The original Claim of Right Act was passed by the Convention of the Three Estates (sitting as the Scottish Parliament) in 1689. The Convention voted to remove James VII (of Scotland) and II (of England) from the throne, using the argument of George Buchanan that the king had broken his implicit “contract” with the people. The Act was incorporated into British law at the time of the Union.

However, in the 2019 prorogation case, the Scottish Inner Court explicitly rejected the Claim as a basis for its decision to allow the issue to go to the Supreme Court, asserting (1) that the Act was limited in its provisions, and (2) that the British Parliament had the right to further define the Claim of Right as it wished.

THE 1989 CLAIM OF RIGHT

Other attempts to claim Scottish conventions limit the exercise of an unfettered sovereignty by Westminster involve the 1989 Claim of Right, originally authored by the Campaign for a Scottish Assembly. This was signed at the General Assembly Hall in Edinburgh on 30 March 1989 by 58 of Scotland’s 72 MPs, 7 out of 8 MEPs, and 59 out of 65 of Scotland’s local councils. The SNP refused to sign because the document did not refer explicitly to independence, but Nicola Sturgeon has argued the party “always supported the sentiments of the Claim of Right”. Most serving Scottish Labour MPs signed, including Gordon Brown and Alistair Darling (both below).

The second Claim acknowledges “the sovereign right of the Scottish people to determine the form of Government best suited to their needs” and to “assert the right of the Scottish people to secure implementation” of a scheme for self-government. The document seems to refer implicitly to devolution but clearly states it is for the people to choose the precise form of government that “suits” them. Taken at face value, the signatories were asserting that the constitutional choices of the Scottish electorate are paramount, in which case they presumably trump the decisions of Westminster.

Attempts were later made to give the Claim a legal basis. In July 2018, the SNP moved a motion in the House of Commons to “endorse the principals of the Claim of Right”. After a lively debate, in which Tory, Labour and LibDem MPs argued the Claim should be read only in the light of the campaign for devolution, the motion was passed without division.

Certainly, by not explicitly referring to the option of independence, the second Claim is ambiguous enough for opponents of indy to find some wriggle room. On the other hand, the bold statement to uphold “the sovereign right of the Scottish people to determine the form of Government best suited to their needs” must surely embrace the right to self-determination, including the right to hold a referendum should the Scottish people demand it through the ballot box and through their Holyrood representatives.

CONCLUSION

On one reading of the original Claim of Right, the failure of the UK Parliament to grant a second referendum – in the face of a clear electoral mandate from the Scottish people – represents an implicit breaking of the “contract” between rulers and ruled that the Claim is designed to guard against.

Equally, the signatories to the second Claim clearly signed a document explicitly upholding the paramountcy of the wishes of the Scottish electorate, even if they choose to deny this today. Of course, these facts do not hinder Westminster from riding roughshod over Scottish preferences.

FACT CHECK RATING

Five out of 10. Scotland finds itself in an constitutional impasse that only Holyrood can break.