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Wednesday, 18 April 2012

A History Lesson: Why Section 30 Powers Might Not Be Required

Henry Ford was clearly an exceptional individual but hopefully few would agree with his "history is bunk" assessment. One might be more tempted by Graeme Shankland, "A country without a past has the emptiness of a barren continent" or Cicero's '"To remain ignorant of things that happened before you were born is to remain a child".

As in many things, though, if we want to get the best take on any given subject we normally have to turn to a woman.

"The past reminds us of timeless human truths and allows for the perpetuation of cultural traditions that can be nourishing; it contains examples of mistakes to avoid, preserves the memory of alternative ways of doing things, and is the basis of self-understanding" - Bettina Drew.

As well as self-understanding, history can also help us to understand others and their motivations. This is especially true in how they 'use' history. We all know that history is written by the winners and that is why so many have misappropriated the 'lessons' of  Darien in their trumpeting of the glories and benefits of the Union of 1707.

Indeed, Unionists have displayed a particularly schizophrenic attitude to history during the current constitutional debate. In one breath they deride Nationalists that their support for Independence is tied up in a romanticised Scottish history of Braveheart, Bannockburn and Burns' 'parcel of rogues'. In the next they will talk about the 'rescue' of Darien and the 300 years of shared history since and how it would be diabolical to consider throwing that away.

This always suggests to me that, in Unionist minds, 'good history' started in 1707 and everything before was 'bad history'.

It is perhaps appropriate at a time when the UK Government moves ever closer to imposing the 'Big Brother' State that we also remember Orwell's history lesson, "He who controls the present, controls the past."

This is particularly relevant to the current debate when we are constantly reminded that the UK Parliament is sovereign. Despite devolution, we are told, Westminster remains the ultimate authority. Any powers granted to Holyrood are merely largesse granted by the real power in the land. This is why David Cameron, Michael Moore and their adherents believe they have some control of the Constitutional process. Holyrood has no authority, they remind us, to hold a binding referendum (let us ignore for now that all referenda in the UK are advisory and not binding) and in order to do so will require a transfer of power from London - the fabled Section 30 powers. In order for us to provide this, Westminster continues, here are our conditions for your referendum.

This ignores a simple Constitutional truth. In Scotland, the people are sovereign - the Westminster Parliament is not!

Many commentators will attempt to deny this. It is a myth, an anachronism, a fallacy. And in any case, sovereignty was assumed by Westminster at the point of Union. All nonsense, but "He who controls the present..."

Unfortunately, for Unionists, ordinary Scots are increasingly taking control of our present and reclaiming our past.

Just as England has its own 'constitutional' documents - The Charter of Liberties; Magna Carta; The Bill of Rights 1689; - so does Scotland - the Declaration of the Clergy 1309; Declaration of Arbroath 1320; Claim of Rights 1689.

The three Scottish documents above (along with others) formed the basis of Scottish constitutional law at the point when the Union was entered into. They affirm that the Scottish people are sovereign. The Treaty of Union does not change that position and the Scots Parliament - even as they entered the Union - were not empowered to relinquish that sovereignty. Every child knows that Scotland and England continue to this day to have separate legal systems. Therefore, any Statute enacted by the Westminster Parliament impinging on Scottish constitutional matters can only have force for as long as the sovereign Scottish people give it their consent.

This position was essentially confirmed in MacCormick v Lord Advocate. Although MacCormick and Hamilton lost their case with regard to the appellation to be applied to the  monarch, Lord President Cooper did state obiter (an aside to the main ruling) "The principle of the unlimited sovereignty of Parliament is a distinctly English principle which has no counterpart in Scottish Constitutional Law."

He went further and acknowledged that the Union was a joining of equals and not the subsumption of one Parliament by another, "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."

In effect, the Westminster Parliament has, for three hundred years, assumed the consent of the sovereign Scottish people to be governed. We can withdraw that consent at any time. Indeed, some would argue that every election is an expression of the sovereign will of the Scottish people. In that case, in 2011, we effectively withdrew that consent with the election of a Nationalist majority government. If the SNP emerge from the upcoming local elections having improved their standing as Scotland's dominant political force, the Scottish people have re-affirmed that they see their sovereignty being centred on a party who reject the supremacy of the Westminster Parliament.

The constitutional supremacy of the Scottish people was acknowledged in 1997 by no less a personality than the arch-Unionist himself. In trying to warn of what he saw as the folly of enacting Devolution, Michael Forsyth's view was that the Scottish Parliament could pass an Act of Independence "and it would be so." The reason that Forsyth has been such an opponent of a Scottish Parliament is precisely because he understands the Constitutional position.

So, where does this all leave us? Constitutionally, it means that Holyrood does not need the granting of Section 30 powers. For political reasons, it would be beneficial to the SNP leadership and, perhaps, even advisable. However, if the conditions demanded by Westminster start to dilute or subvert the Scottish democratic process, it should be refused.

As well as our extant Scottish Constitutional Law, legal precedent and a number of international treaties to which the UK is a signatory, would support the result of a referendum independently managed by Edinburgh assuming international norms of probity and fairness were applied. No doubt, there would be legal challenges but they would be overcome. Undeniably it would make post-Independence negotiations even more fractious than they might otherwise be. But Westminster should be wary of pushing Scotland and the Scottish people into a corner. History has provided enough lessons of what happens then...

1 comment:

  1. This 'topic of conversation' has been bugging me, more so in the past few weeks since the publication of the UK Gov Response to their Referendum consultation.
    Mickey Moore SSS was quoted in the consultation document of 10 Jan 2012 as saying: 
    "The Scottish Parliament only has power to legislate on matters that are devolved and has no power to legislate on matters that are reserved to the UK Parliament. The Union of the Kingdoms of Scotland and England is one of those reserved matters."

    Section 29 of the 1998 Scotland Act which states that 'a provision is outside the legislative competence of the Scottish Parliament if it relates to reserved matters.
    Schedule  5; of the Scotland Act 1998
    Under Reserved Matters; 
    Part 1; 
    General Reservations; 
    The Constitution;
    And States: The following aspects of the constitution are reserved matters, that is—
    (b)the Union of the Kingdoms of Scotland and England,

    Maybe I am way off the scale here but the Independence we are seeking is Independence from the United Kingdom ( Scotland, England, Ireland and Wales) not technically a dissolution of the Act of Union 1707 between Scotland and England.

    If this is the case then there is no requirement for a Section 30 order.