Who is Sovereign: the British Parliament or the Scottish people?

The Campaign for an English Parliament is calling for Gordon Brown to repudiate the 1988 Claim of Right, in which he, along with many other prominent Scots, stated:

We, gathered as the Scottish Constitutional Convention, do hereby acknowledge the
sovereign right of the Scottish people to determine the form of
Government best suited to their needs, and do hereby declare and pledge
that in all our actions and deliberations their interests shall be

We further declare and pledge that our actions and deliberations shall be directed to the following ends:

To agree a scheme for an Assembly or Parliament for Scotland;

To mobilise Scottish opinion and ensure the approval of the Scottish people for that scheme; and

To assert the right of the Scottish people to secure implementation of that scheme.
(Scottish Politics)

The CEP argues that the implications of this oath are unacceptable for a British Prime Minister:

CEP Chairman, Scilla Cullen, said, “There is another nation within
the UK- that of England. Will Gordon Brown extend to its people the
right of self-determination that he espoused for his own nation when he
signed the Scottish Claim of Right?”

CEP Vice Chairman, Tom Waterhouse, said, “The Claim of Right was a
public oath, and those who took it pledged to put the interests of the
Scottish people before all others. How can Gordon Brown, who took this
oath, become Prime Minister of the United Kingdom? He must declare that
he will put the interests of the whole of the UK before those of
Scotland”. (CEP blog)

What I find interesting about Brown’s adherence to the Claim of Right, is that it endorses a Scottish tradition of popular sovereignty that goes back to the Declaration of Arbroath.

This tradition contrasts with the English principle of the sovereignty of Parliament, a principle that does not apply in Scotland according to the famous 1953 judgement of Lord Cooper in McCormick v Lord Advocate:

"The principle of the unlimited sovereignty of Parliament is a
distinctively English principle which has no counterpart in Scottish
constitutional law. It derives its origin from Coke and Blackstone, and
was widely popularised during the nineteenth century by Bagehot and
Dicey, the latter having stated the doctrine in its classic form in his
Law of the Constitution. Considering that the Union legislation
extinguished the Parliaments of Scotland and England and replaced them
by a new Parliament, I have difficulty in seeing why it should have
been supposed that the new Parliament of Great Britain must inherit all
the peculiar characteristics of the English Parliament but none of the
Scottish Parliament, as if all that happened in 1707 was that Scottish
representatives were admitted to the Parliament of England. That is not
what was done." (Wikipedia)

In the wake of last month’s SNP victory in Scotland, that judgement may yet prove to be something more than a historical curiosity.

Brown’s endorsement of this tradition would have been a no-brainer in 1988. It might well appear as something of an embarrassment in 2007, when Brown is about to become the most powerful figure in the British Parliament and the Scottish people have elected an SNP government.

Personally, I  think that  Brown should not repudiate the Claim of Right. Instead, he should enshrine the sovereignty of the Scottish people and the other constituent peoples of the UK in an new constitutional settlement.

After all, Northern Ireland arguably already has a version of popular sovereignty enshrined in the Good Friday Agreement as the principle of consent, so why not the other parts ot the UK?

Update: Little Man in a Toque has aready raised the key issue of two competing ideas of sovereignty here.







7 responses to “Who is Sovereign: the British Parliament or the Scottish people?”

  1. Touqe avatar

    Not the done thing to link to ones own blog in comments, but it is relevant and you may find it interesting if you have not already read it http://toque.co.uk/blog/?p=564

  2. M Anderson avatar
    M Anderson

    “…I, Gordon Brown] do hereby declare and pledge that in *ALL* [my] actions and deliberations the [scottish people’s] interests shall be paramount.”
    Brown has recently been going around spouting off about people needing to be British. (the [scottish people’s] interests shall be paramount) Why? It isn’t what he believes. He does not believe in Britishness at all!
    He would not have said what he did in 1988 if he believed in Britishness! I know! I know! It isnt like everyone and their dog doesnt know that’s he’s lying about Britishness. That isn’t the point!
    Oh so it helps keep the English down! Right, I see. All his “actions and deliberations” are geared towards scotland. (the [scottish people’s] interests shall be paramount) Hence, the sudden u-turn about Britishness. I am not even sure if he really cares about being PM. I think he sees britishness
    as a vehicle to keep the English down and thus, the scottish people’s interests which are of course paramount to Brown are kept up!
    If he won’t take back what he said in 1988, he should not become PM of the UK.(The other people of the UK’s interests are not as important as the scottish people’s interests. The [scottish people’s] interests are paramount)
    Not that him simply stating that he takes back what he said in 1988 will really mean anything! He can state what he wants; that doesnt mean his actions will match what he says.
    All of this just proves what a thoroughly deceitful person he is. He can’t be PM of the UK and only have scotland’s interests at heart. How is he going to do
    the job fairly? (the [scottish people’s] interests shall be paramount)
    I don’t think the scottish people take precedence over the British parliament either. If they do then what is the point of a united kingdom? On the other hand, if Brown thinks the scottish people do take precedence then should join the SNP and leave the UK cabinet immediately. He is doing the job under false pretences! Oh yes, but then he wont be PM of the UK.
    Who is Sovereign: the British Parliament or the Scottish people?
    “Personally, I think that Brown should not repudiate the Claim of Right. Instead, he should enshrine the sovereignty of the Scottish people and the other constituent peoples of the UK in an new constitutional settlement.”
    What do you mean by “constituent peoples”? Who are they?
    That is never going to happen with the present shower in power. If you’re talking about a federal solution then of course Brown isnt going to discuss it. He wants to rule over people not discuss something that could put his rule in jeopardy.
    How the hell Brown got to be PM is beyond me. The bloke thinks he’s a commie; but then I find out that he’s a scottish nationalist. He’ll deny it; but he is!
    He lived in a manse! Then he goes on about Britishness. Oh yeah, I suppose he would tell you that everyone has multiple identities! Whatever! I know you can’t be a nationalist commmunist! And just how you can live in a manse AND claim to be a red book writing pinko at the same time is a joke.
    The man is a fake.

  3. David B. Wildgoose avatar
    David B. Wildgoose

    I have no problem with Gordon Brown taking this oath as a backbench Scottish MP. But NOT as Prime Minister for the whole of the UK, nor indeed for any Minister with UK responsibilities outside of Scotland.
    More to the point, how on Earth can you think it right that a British Prime Minister can stand by a public oath that he will put the direct interests of a minority of UK citizens over and above those of UK citizens as a whole? (Including those in Northern Ireland I might add, seeing as the needs and wishes of those of us who are English tend to be pretty low down amongst our “Celtic Cousins”).

  4. Hlafweard avatar

    Personally, I think that Brown should not repudiate the Claim of Right. Instead, he should enshrine the sovereignty of the Scottish people and the other constituent peoples of the UK in an new constitutional settlement.
    Tim, that’s fair enough. However, this is not something Brown will ever do, because it would really blow up the West Lothian question.
    If we enshrine the popular sovereignty of the people of England in a new constitutional settlement, it would necessarily mean that people not accountable to the people of England have no right to make policy on matters that affect England alone. How is it compatible with popular sovereignty for someone not elected to represent an English constituency to frame policy in relation to – for example – transport or health which affect only England, to whose people he is not democratically accountable?
    In other words, enshrining the doctrine of popular sovereignty for the constituent nations of the UK would inevitably mandate the creation of an English Parliament, with powers no less than those of the Scottish Parliament – something which is obviously unpalatable to Gordon Brown. Short of that, the only option open to him, if he wants to become Prime Minister, is to repudiate the Claim of Right.

  5. Tom Griffin avatar

    Hi Toque,
    I hadn’t seen that piece before, but I agree with everything you said. The idea of popular sovereignty should be extended to England.
    That’s why I’m wary of asking Brown to repudiate the Claim of Right. It would just give him the excuse to drop the idea of popular sovereignty altogether.

  6. Tom avatar

    Can’t wait for Brown to publicly commit to the pronciple of popular sovereignty .
    ( altho. in spite of your saying that
    ” What I find interesting about Brown’s adherence to the Claim of Right, is that it endorses a Scottish tradition of popular sovereignty that goes back to the Declaration of Arbroath.”
    in fact , historically , sovereignty in Scotland lay rather with the powerful of Scotland ie the 156 or so nobles + the clergy + some town burgers , in all about 4000 people electors and the fewer than 200 , or so, people who actually were members of the later 17nth century Scottish parliaments – I don’t think that in practice and probably not in principle that soveriegnty was spread , or was held to be spread ,much further than that . The nobility were of the belief , except for very few , that they alone held Scottish soveriegnty . Not a lot different from contemporary France . After all , Scotland broadly accepted , despite the minority riots – not so extensive as they have been painted by nationalists , the verdict of the Scottish parliament of 1706 which voted by 2:1 for union with England )
    anyway , in 2007 sovereignty is sometimes held to be of the popular variety in Scotland – though this has not been tested – in theory it is still derived entirely from the Westminster/ British House of Commons which derives its own soveriegnty from the English settlement of 1688 -in which parliament is held to be sovereign .
    ( you will recall that Blair in 1987 , refused to sign the Scottish Claim of Right with these words ” soveriegnty lies with me as an English MP ” ). I don’t think he meant to be inflammatory but that is what he said .
    It is high time that England was included in the concept of popular sovereignty ie the same as espoused by the Scottish parliament . We don’t have to look far for a model , it has already been proclaimed in the infant United States in Philadelphia in 1787 . ” We , the people ….. ” . The thinking behind it is all English and consciously so .
    Soveriegnty in the United Kingdom is stuck in parliament which rules us and that is wrong . We must move it to the English people and then we can rule ourselves via a parliament which the English will elect .
    There is profound difference .

  7. Michael Follon avatar
    Michael Follon

    In Scotland the concept of popular sovereignty first emerged following the death of Alexander III in 1286 during a period when Scotland was without a king. The original concept was called ‘the community of the realm’ but has evolved into a democratic style where ‘the sovereignty of the Scottish people’ now rests with the total registered electorate. The blog mentions the Declaration of Arbroath –
    ‘…But after all, if this prince shall leave these principles he hath so nobly pursued, and consent that we or our kingdom be subjected to the king or people of England, we will immediately endeavour to expel him as our enemy and as the subverter both of his own and our rights and we will make another king, who will defend our liberties…’.
    It should be noted that the Treaty of Union in 1707 abolished neither the Parliaments of Scotland or England, in fact there is absolutely nothing in the Treaty which even suggests that, as is shown by Article 3 –
    ‘III. That the United Kingdom of Great Britain be represented by One and the same Parliament, to be stiled, the Parliament of Great Britain.’.
    Up until the establishment of the devolved Scottish Parliament in 1999 the constitutional and legal effect on ‘the sovereignty of the Scottish people’ was that it had merely been unavailable.
    ‘No man has a right to fix the boundary of the march of a nation; no man has a right to say to his country, “Thus far shalt thou go and no further”.’
    – Charles Stewart Parnell (1846 – 1891).

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