Sovereignty of People and Parliament Explained
There is an oft-heard Scottish nationalist myth that "sovereignty" in Scotland belongs to "the people" but in England, sovereignty only belongs "to Parliament".
The fact is that sovereignty in both Scotland and England is, of course, the same!
WHAT IS SOVEREIGNTY?
Sovereignty is authority. The authority to do something.
In politics, there are different kinds of sovereignty.
There is democratic sovereignty, legal sovereignty and national sovereignty. We define them below.
WHY THE CONFUSION?
The notion of there being a difference between Scotland and England derives from an opinion expressed by a judge – Lord Cooper – in a court case in 1953. He expressed a point of view – called an obiter dictum. His opinion did not form any part of the judgement.
In this case, the petitioners John MacCormick and Ian Hamilton argued that the Royal Styling of Elizabeth "the Second" was in breach of the first article of the Treaty of Union. The case was heard initially by the Lord Ordinary, Lord Guthrie and he found for the Crown. The petition was dismissed. They appealed and it was heard in the First Division by the Lord President Lord Cooper, and Lords Carmont and Russell. They affirmed the Lord Ordinary's decision.
The sentence which the Nationalists like to quote is the comment (and it was no more than an opinion) by Lord Cooper that:
"The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law." [Scots Law Times (1953) 255-265 at 262, and Session Cases (1953) 396-418 at 411.]
That is a debatable point of view!
Indeed, in the very same case, Lord Russell added some balance by pointing out in reference to Westminster:
"During the last 250 years...there has grown up a system of representative government embracing adult suffrage, five-year parliaments and the like until today it seems possible to affirm that the will of the majority of the population – both in Scotland and in England – is represented by and vested in its Parliamentary representatives." [Scots Law Times, at 265]
Lord Cooper's point of view was, in turn, derived from the constitutional scholar AV Dicey (1835-1922). He was the author of Introduction to the Study of the Law of the Constitution, (1885).
In it, Dicey defined parliamentary sovereignty as:
"the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament." [AV Dicey, An Introduction to the Study of the Law of the Constitution (first published 1885), 10th edn, 1959, London: Macmillan, pp.39-40.]
Clearly, Dicey is only talking about the legal sovereignty of parliament; the authority of a parliament to make and enforce law. What he was saying applies to every parliament in the world. It is not a particularly unique concept.
HOW NATIONALISTS INTERPRET THIS OPINION
Nevertheless, nationalists seize on "Lord Cooper's famous dictum" to make the first point that Scotland is somehow constitutionally and democratically superior to England; and that somehow the poor, trod-upon English are not "sovereign", but rather it is their over-bearing parliament which is "sovereign".
Secondly, they will argue this means Westminster is not aligned with the Scottish "constitutional tradition", where the people are "sovereign"; that it is therefore alien to the Scottish democratic mentality. For them, it follows that the Scots should break away and be free from such an imposition with its alien conception of sovereignty which oppresses our democratic instincts.
Thirdly, at its most extreme, this belief in the sovereignty of "the people of Scotland" can even be used to suggest that the Scots have no need to listen to Westminster because it imposes a "parliamentary sovereignty" which is foreign to our ways. This attitude tends to justify law-breaking.
So, what is the fact of the matter?
THERE ARE 3 FORMS OF SOVEREIGNTY
Democratic sovereignty is the authority of the people to elect their representatives. It is exercised at the Ballot Box by the people when we elect our representatives.
In that regard, the Scottish people exercise their democratic sovereignty by electing representatives to Westminster and Holyrood, and we regularly endorse those institutions by our behaviour. Indeed, we have endorsed Westminster much more enthusiastically than we have ever endorsed the parliament at Holyrood. See graphic below.
Legal sovereignty is the authority of the parliament to make and enforce laws. It is exercised by the parliament – any parliament – when it creates Acts of Parliament which become law.
Depending upon political circumstances, the authority of a parliament to make law freely may be constrained. For example, the UK Parliament was constrained within the EU. The devolved parliaments are constrained within the boundaries set by the UK Parliament. Nevertheless, all parliaments do possess a form of legal sovereignty within the specific boundaries in which they exist.
National sovereignty is the authority of the national parliament to govern without any outside political or legal interference (or with as little as possible). It is exercised on the world stage by the institutions of the State – the Crown, the Parliament, the Government, the Prime Minister; and other institutions of the State such as the worldwide Embassies, and the Armed Forces – which also exercise a form of national authority.
In the UK – which is a Unitary State – it is the institutions of the British State which exercise the national sovereignty of the nation of the United Kingdom. Ultimately, this is the sovereignty which the Scottish nationalists are disputing.
However, those fundamental understandings of sovereignty – democratic, legal and national – are the same world-wide! It is absurd to pretend that people in Scotland are sovereign but people in England are not!
IN SUMMARY: OUR LETTER in THE HERALD
A Force For Good's Director, Alistair McConnachie, who has a degree in Scots Law, had the following published as the lead letter in The Herald on Monday 13 August 2012, under the banner headline "Nationalists on path to danger over parliament's sovereignty":
Iain Paterson repeats the oft-heard and utterly erroneous Nationalist mis-comprehension that the "Court of Session has ruled" that the "English" doctrine of parliamentary sovereignty has no counterpart in Scottish constitutional law (Letters, August 11).
In the case to which he refers, MacCormick and Another v The Lord Advocate, the Lord President Lord Cooper simply ventured his considered opinion (called an "obiter dictum" in law) which formed no part of the reason for the final judgement (which MacCormick lost).
Furthermore, Lord Cooper failed to distinguish between the legal sovereignty of Parliament (any Parliament) to make law, and the democratic sovereignty of the people (any people) to elect that Parliament in the first place. These are two distinct principles of sovereignty which exist in all modern societies.
That is to say, the people engaged in voting are the fount of sovereignty in a democratic sense, but once we have elected a Parliament, then the Parliament must be sovereign in a legal sense, until we elect a new one. If the people don't like the laws of the Parliament, then we vote it out. That is how all modern democratic societies work. It is how all modern democratic societies must continue to work if we all wish to remain civil and relatively safe.
Unfortunately, quite a few Nationalists seem to have manufactured for themselves a self-serving, and very dangerous, version of sovereignty peculiar to Scotland, where if "the people" don't like the Westminster Parliament then they can ignore it.
This is not a mere pedantic point. Carried to its extreme, this conception of exclusive sovereignty resting in "the people" is socially harmful, justifying rebellion and mob rule.
Mr Paterson holds up the 13 colonies as if it were some kind of example. It's more a warning of how fast violence can descend when these principles are disregarded.
Above: We examined this idea on our segment "Busting Indy Myths, Part 16" on our show, "Good Evening Britain" on 27 July 2022.
We spoke about the idea of the Queen being "A Symbol of the People's Sovereignty" and we dealt with the matter of the Royal Styling in our magazine Happy and Glorious, which celebrated the Queen's 70th Platinum Jubilee.
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