Scotland: A Crowned Republic

After the Union of the Crowns in 1603, the Scottish Court having decamped south to govern Britain from the banks of the Thames, King James the I and VI famously boasted that “here I sit and govern it with my pen; I write and it is done, and by a Clerk of the Council I govern Scotland now, which others could not do with the sword.” 

In practical terms, you can be sure a good deal more effort, more folk and pens and swords, were involved in the administrative work of ruling Scotland in his absence than this languid, and characteristic, aphorism recognises. In James’ absence, the distinct Scottish Privy Council continued to attend to the Crown’s interests in Scotland. It would sit until the second union, being finally dissolved as a separate body in 1708. 

In Parliament, the King’s Lord High Commissioner continued to tap Scottish legislation with the sceptre, indicating royal assent to the laws adopted by his subjects. Today, the Privy Council continues to meet in London, Holyrood receives  royal assent to its Bills in letters patent, and the sceptre reposes prettily in Edinburgh Castle.

The First Minister is fond of suggesting that the SNP plan to roll back the Union of 1707, "restoring the Regal union" of 1603, and the personal union of Scotland and the rest of the United Kingdom under the sway of a single sovereign. As a wean, briefed at his grandfather’s knee in Scots history in Linlithgow, Salmond is prone to the occasional Romantic outburst, and his vision of a 17th Century “restoration” for the 21st warrants closer scrutiny.  What has been less clear is how practically this "restoration" might be realised and what it might mean in practice.

Would the Scottish Privy Council be revived? Would legislation continue to require, even formal, royal assent? Commonwealth states who have retained the Queen as head of state furnish useful parallels, and pose pertinent questions. Although Queen Elizabeth remains the Australian head of state, she wears a different Crown in the antipodes, governing distinctly as Queen of Australia. The same goes for the other countries which the Queen - at least theoretically - heads.

In Australia, New Zealand and Canada, for example, the Crown’s duties and powers are exercised by Governors-General. Would Scotland have an equivalent figure, representing Crown authority after independence? Salmond has been noticeably quiet on the question, but his plans do not seem explicitly to compass the creation of a new Governor-General for Scotland, or any equivalent figure. The question of a Privy Council hasn't got a look in at all.

Currently, Scottish republican strategy seems to be limited to grousing about the First Minister’s enthusiasm for Liz Windsor, and emphasising that some good socialists still exist, who believe the people are and should be the sole source of sovereignty in an independent nation. That’s all well and good, but there’s no harm in planning ahead, on the assumption that we win the referendum but Salmond prevails and the Windsors keep their throne. The important question is not just whether Scotland would and should retain the monarchy, but how monarchy might be retained – and changed – in an independent country.

In UK constitutional theory, the Crown is part of the legislative branch, the Crown-in-Parliament representing a constitutive dimension of Westminster sovereignty, in addition to the Lords and Commons. No parallel theory sees Holyrood’s relationship with the Crown in this light, but the Scottish Parliament is a creature of Westminster statute, and the Queen still gives royal assent to Scottish Bills.

The Privy Council, though even more baroque-sounding, is actually employed in important governmental work. Subordinate legislation called Orders in Council, such as the section 30 order which gave Holyrood indisputable power to hold the referendum, were made by the Privy Council. The Council has other functions too, emanating both from statute law, and from the historical powers of the Crown itself, its so-called prerogative powers, now effectively exercised by ministers of state.

We’ve heard a bit more than is typical about the royal prerogative recently, around the debates on waging war in Syria. Historically, power to declare war has been vested in the sovereign, and it is to the sovereign power of the Crown that Prime Minister David Cameron could still unilaterally appeal to throw us all into any conflict of his choosing. Politically, that would be unacceptable, but legally, the Queen’s Ministers, in exercise of the Crown's prerogatives, still enjoy those powers.

On twitter, I recently had a wee scrap with a couple of folk, arguing that the real reason Salmond wants to keep the monarchy to get his mitts on the full powers of the royal prerogative.  People making this argument tend to be less clear about which prerogative powers they have in mind.  As Adam Tomkins has argued, even in the UK, the sway of the royal prerogative is diminished and diminishing, de facto and de jure.  The zone of unfettered power is shrinking.

The Prime Minister’s power to wage war is, as we’ve seen, increasingly curtailed by political expectations that the legislature have a voice in the debate. Other areas in which the prerogative has traditionally been exercised have fallen out of ministerial power, and under statutory governance.  The fixed parliament legislation settled the Westminster parliamentary term, depriving the incumbent Prime Minister of the opportunity to dissolve and call elections whenever he or she damn well pleases. Traditional areas in which the royal prerogative has been exercised freely by ministers, such as the grant of passports and the civil service, are increasingly the subject of legislative codification and regulation.

For folk like myself, keen to topple the House of Windsor and to abolish nobility and princelings, the SNP leadership’s plans to retain the Queen as head of state prevail against my preferences. For calculating republicans, however, the important question is not only whether we have a crowned head of state, but if we’re to be stuck with a Queen of Scots, what sort of monarch do we make her?

It is for our constitution to determine, after independence, what powers and privileges this Queen of Scots is to enjoy. There is no reason whatever to suppose that we should leave the authority of the Crown in Scotland unaltered, as is, and simply invest Scottish Ministers with the prerogative powers currently enjoyed by their London counterparts. Superficially, Queen Elizabeth may reign uninterrupted. Backstage, however, a new constitution affords an opportunity to rearrange just about everything. 

A few ideas. If Scotland is to be a crowned republic, premised on the sovereignty of the people, why should the laws adopted by the people’s representatives continue to require even token consent from the sovereign? The tripartite parliament in Westminster, Crown-Lords-and-Commons, emerges from a rich and interesting constitutional history.  Let the London antiquarians tend and preserve it, if they will.  As for us, let’s ditch it. Why retain the fiction of a Governor-General, or some other viceroy? Why not, like the Swedes, deprive their monarchs of the burdens of assent, and ourselves of its undemocratic symbolism?

It minds not me that Queen Anne was, famously, the last monarch to decline to give her assent (appropriately enough, to a bill concerning a Scottish militia). If the procedure is extraneous and decadent, ditch it. By all means, have a period after parliament adopts legislation within which law officers can refer it to the constitutional court for deliberation on its validity, as at present. To date, that mechanism has never been used.  But no gaudy royal protocols are needed. 

By all means, reconjure the Scottish Privy Council into life. But let’s abolish orders of chivalry and nobility. Let the gowns fray on the shoulders of the last Knights of the Thistle. Let this Queen of Scots continue to debauch the public manners and promote deferential foppery. Folk who still hold her hollow crown in awe will be contented, and Better Together are denied a dividing line in the referendum. But the real business of republicanism lies beneath the jewels and polished metal, and beyond the ludicrous show of elderly toffs posing as archers, creaking in green, and gaudy playing card heralds, trying to keep their dignity intact inside their tabards. 

Instead of expending useless energy gouging Salmond’s royalism, I'd encourage Scottish republicans to scheme a little, and to plan for a republican constitution with a crowned head. If we must keep Queen Liz, let’s make sure she inherits a Scottish crown as amenable as possible to future republican amendment. Let’s clear away the prerogative clutter, so mere convenience and expediency make no case for keeping her longer than necessary, wish her joy of the throne, and work to ensure she finds the seat uncomfortably unfamiliar.