Westminster is Sovereign. Holyrood is Not.

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By Jason Michael

AFTER A FEW YEARS of Canon Law and a module on International Human Rights Law as part of an MPhil in Race Ethnicity and Conflict I have reached a level of legal understanding. Now I know with absolute certainty I haven’t a clue about the law. But I have a theory (à la Michel Foucault): Law is the narrative of power. It functions, whether separated from or controlled by the ruling establishment, to preserve the status quo; to ensure the basis of the right to rule – or dominate – is maintained. You may, perhaps rightly, consider this a pessimistic appreciation of the law, but the spectacle currently playing out in the British Supreme Court – as the UK government contests the competence of the Scottish parliament to enact the Continuity Bill – makes this difficult to deny. When Richard Keen QC PC (“Lord Keen of Elie”) insisted Holyrood was not sovereign we were indeed listening to the law being used as a means to maintain the right of Westminster to dominate Scotland.
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As this contest is being played out in the British Supreme Court, the highest constitutional court in the United Kingdom – an institution established in 2009, a fundamental contradiction, at least in my mind, is exposed. Scots and English law presume two distinct and mutually exclusive understandings of sovereignty. When Lord Keen says the Scottish parliament is not sovereign, the implication is that it is England’s and not Scotland’s principle of sovereignty being invoked. It assumes:

Sovereignty, this wise, good and powerful entity, [resides] in the supreme, irresistible and absolute authority of the Crown in parliament. Sovereignty, in essence, [is] the authority to make laws: ‘Sovereignty and legislature are indeed convertible terms; one cannot subsist without the other.’
– Lisa Staffen, Defining a British State: Treason and National Identity, 1608-1820 (2001)

This notionality of the “absolute authority of the Crown” – in the person of the monarch or in parliament – comes to the British constitution from England’s always latent, yet never fully realised, conception of sovereignty as located in the absolute power of the monarch. This is not how Scotland, historically or legally, perceives sovereignty. In the Union of the Crowns – where Elizabeth II is “Queen of Scots” as opposed to Queen of Scotland – and in the Union of Parliaments sovereignty in Scotland is popular; the locus of power in Scotland is with the Scots themselves. As the United Kingdom’s is an unwritten constitution this duality is possible. It means that Scots can assume this sovereignty is exercised at Westminster by Scottish elected Members of Parliament as equal constituent members of a union state and, insofar as powers are devolved to the Scottish parliament, at Holyrood.

When the Advocate General says Westminster is sovereign and the Scottish parliament is not he is presuming a definition of sovereignty which is fundamentally foreign to the Scottish national constitution. More than this, he is assuming a unicity – a singular notion of sovereignty and power in a singular British state – that has never before been made explicit. He is giving England’s idea of sovereignty priority over that of Scotland. This engenders a worrying logical problem; unicity renders the heretofore existing duality of legal understandings impossible – meaning if England’s is normative then Scotland’s is redundant.

Such a conclusion, if determined in the Supreme Court, would alter the constitutional constitution of the British state. In effect it would de facto end the composite nature of the union state, making the United Kingdom – as far as law is concerned – a one nation state. Scotland’s distinct concept of power and sovereignty, the most essential component of statehood (all be that dormant in the case of Scotland), would lose the last vestiges of its force, thereby completing the subsumption of Scotland into the English state. If indeed this is the direction of constitutional travel in the United Kingdom or, worse, if this was always part of the small print of union, then Scotland is faced with an existential choice; either we accept the redundancy of Scotland’s popular sovereignty and the absorption of our nation into another state or we reassert it and take the only course that will protect it – independent statehood.

Another problem arising from the denial of the sovereignty of the Scottish parliament is the problem of devolution itself. Power in Britain is derived from the Crown through parliament; however power is defined within this dual system context. It is perfectly reasonable then to assume that that power – sovereignty, when devolved to our national parliament remains sovereign. In fact, the claim that Westminster is sovereign – according to this reasoning – is absurd. In England the Crown is sovereign and in Scotland the people are sovereign. From these duel origins power is devolved to Westminster and further devolved to Holyrood.

The suggestion devolution, as it is defined in the United Kingdom, does not transmit a share of state sovereignty has logical consequences for both Scotland and England. In Scotland it means we can infer that nothing changed with the opening of the Scottish parliament. Without devolved sovereignty the Scottish parliament is legislatively and constitutionally superfluous. Equally, if devolution does not transmit power, then Westminster too falls into the same trap and is therefore an illegitimate bearer of state sovereignty.

Everything of this changes, however, if the Advocate General and the British government are willing to accept the dual system of law in the United Kingdom and the validity of the Scots notion of popular sovereignty. Without one system claiming supremacy over the other, then, it is perfectly possible to acknowledge the shared sovereignty of the Scottish parliament without imagining a threat to the hypostatic nature of a state having more than one sovereign parliament, precisely because it is devolved into areas of non-competing competency. This would be the same sovereignty, understood differently, doing the same thing in different places for different purposes. Britain’s refusal to accept this, met with Scotland’s demand to be treated as an equal partner in the union state, can only drive Scotland – ultimately – out of the union.

Lord Advocate – 28 Feb 2018

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