17 October 2013

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. 


  1. "but if we’re to be stuck with a Queen of Scots, what sort of monarch do we make her?"

    The last one...

    1. I do sympathise with that. Let's see see how we go...

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  3. Salmond has always been a politician who takes things step by step over a period of years. The Monarchy is on the way out in Scotland. If we gain our Independence it will drift away within a decade. Not particularly bothered either way, but I've never been a lover of the Royal Family of England with it's myriad failings.

    1. Maybe, but the might force of inertia in human affairs shouldn't be underestimated...

  4. As I get older, I tend towards Salmond's romantic royalism more than my fiery republican younger self would ever have believed. Put another way, on the issue of independence, the status of the monarchy is an issue about which I care not a whit.

    I will toss my historical hat in the ring, though, in regards to some of the points you have made. The first is to say that there is absolutely no contradiction in having Liz Windsor be Queen of Scots as she is Queen of Australia, since there is actually a stronger case to be made for the Crown of Scotland as a sovereign entity.

    Secondly, your aphorism as expressed by James VI & I has somewhat clouded your perspective on how the regal union worked viz. Anglo-Scots relations. For huge chunks of the 17th century, James' vaunted Privy Council was about as effective a parliamentary management committee as the Scottish Affairs Committee at Westminster is today. While he and his grandson, Charles II, did manage to exact a significant amount of legislation through Privy Council auspices, it was ultimately the Lords of the Articles, the most powerful committee in the Scottish Parliament, that controlled royal government in Scotland. The Privy Council chose the membership of said committee, it is true, but while the PC existed in an unbroken fashion between 1603 and 1708, as you suggests, the LotA were abolished twice - in 1633, during the Covenanters' Parliament, and in 1688, in the Revolution Parliament.

    Ultimately, what became clear over the course of the 17th century was that political management of Scotland by London owed more to royal factions within Scotland than any distant junta doon sooth. Charles I's inability to maintain allies in the Scottish Parliament allowed the Covenanters to gain unprecedented control over the kingdom's political levers, while William III & II's desire to add Scotland to his conquest of England meant he also conceded powers to Parliament in Edinburgh. In both cases, the disjuncture between Scotland and England ratcheted tensions to unsustainable levels, resulting in 1639 with the Bishops' Wars and eventually the British Civil Wars, and by 1695 the Darién scheme and the blatant flouting of royal preference to advance Scottish interests on a global scale.

    The Union, ultimately, was the solution to the persistent problem of how to govern Scotland. By removing altogether the Parliament in Edinburgh, the Crown could control events up north directly from That London. Which suggests that the lesson from history is not that the royal prerogative transferring to the Scottish Parliament would likely entrench it as a political device, but rather that we might see a *return* to a system of government that was far more primarily parliamentary than England's feted balanced constitution ever was.

    1. Thanks for that interesting historical addendum, Craig. I wondered if the post might tempt you from the shadows, bearing riches! As I believe I have said to you before, I'm always conscious about the thinness of my education about Scottish history, and legal histories are often curious, truncated, decontextualised things. I appreciate you filling in a few of the surrounding blanks.

    2. Always happy to help, good sir. I should probably add that the above is very much my interpretation of events and would fine little support amongst the major works of Scottish history currently out there. But then, those works drove me to investigate the matter properly since, pace Colin Kidd, most Scottish historians seem to invoke "principled Unionism" as a duex ex machina that explains why Scotland joined the Union, as though that was the end of the story.

    3. I will also say that my shadows are very much PhD-induced! Only October and I'm all ready begging for mercy...

  5. 'Although Queen Elizabeth remains the Australian head of state, she wears a different Crown in the antipodes, governing distinctly as Queen of Australia. '

    Hm yes and when she crosses the border to Scotland she becomes the head of a presbyterian church. From the royal web site.


    'In Scotland, there is a division of powers by which Church and State are each supreme in their own sphere. The Church is self-governing in all that concerns its own activities.

    Its supreme authority is the General Assembly of the Church of Scotland, presided over by a Moderator chosen each year by the Assembly itself.

    The monarch takes an oath to preserve the Church of Scotland at the meeting of the Privy Council immediately following his or her accession.

    The Crown is represented at the Assembly, sometimes by the monarch in person, but more often by a Lord High Commissioner appointed each year by The Queen.

    Provided that it acts within the law of the land, the Assembly has the power to pass resolutions which can have effect without Royal Assent.. '

    Am not sure if she is also a piskie when here! Anyhoo royalty is absurd as we all know. Edward II's Coronation oath of 1308 is remarkably blunt on the English monarch's figurehead status -

    'Sire, do you grant to be held and observed the just laws and customs that the community of your realm shall determine, and will you, so far as in you lies, defend and strengthen them to the honour of God?'

    The question is whether or not it is a helpful absurdity, and I think it probably is. It is often said that western constitutional monarchies - for their daftness - are the most stable countries in the world, and I am quite content to accept royalty on that pragmatic basis. And I think most Scots are and will be for a while yet. Agree with Salmond on that.

    1. Me too, Edwin. Better, I think, not to make it a "dividing line" for next autumn. Or at least, better, Salmond having made his play, quietly to park disquiet for the time being. If we secure a Yes vote, there's plenty time...

  6. "Royalty" - put it in the historical dustbin and move on.

    1. Easier said than done, it seems. Like Edwin, I suspect many folk aren't that riled by monarchy, even if they lack much ardent zeal in its support either.

  7. Basic point is this: yes, we can keep the monarchy without keeping the crown prerogatives in their current form (some SG announcements have indeed hinted in that direction; previous SNP drafts also). The examples to look at, though, are not Australia and Canada, but countries like Jamaica, St Lucia and the Solomon Islands (really, I'm not joking) - places where the prerogatives are already cut down to size. Also, most of these changes have already been made in Scotland, under the Scotland Act, so we have a good basis to work from. John Drummond, chair Constitutional Commission

    1. Thanks John. Will be sure to follow up your other Commonwealth suggestions. Am a wee bit puzzled by your reference to the Scotland Act here though. This may just be a quibble of degree. While the devolution legislation does important things in the field, accustoming us, at least to some extent, with constitutional norms and instruments, I don't know if I find it persuasive "most of these changes" have already been made with devolution...

  8. My late Father always said that Charles would never be King.

    My Father was no clairvoyant, he just said that royalty had outlasted its usefulness and that eventually it would be held in contempt.

    I think he was right and the death of Libby will be its death, certainly in Scotland but, who knows about the Home Counties. Who cares about the Home Counties?

  9. Easier said than done, it seems. Like Edwin, I suspect many folk aren't that riled by monarchy, even if they lack much ardent zeal in its support either.