23 December 2013

What does "sovereignty" of the people of Scotland mean?

David Torrance has a column in this morning's Herald, "Recognition of sovereignty need not threaten UK state."  In it, David takes aim at what he perceives to be the SNP's absolutist and old-fashioned thinking about that slippery term, "sovereignty", arguing:

"In practice, however, the notion of "absolute" Westminster sovereignty has been on the wane since 1973, when not only did the UK join the European Economic Community (thus ceding sovereignty to a wider union) but also sanctioned a "border poll" in Northern Ireland. In a precursor of next year's independence referendum, the latter invited the people of the six counties to choose their constitutional future (in or out of the UK) via a referendum."

"Thus Westminster conceded that the province was sovereign, as in fact it had been since opting out of the Irish Free State some 50 years before. Similarly, the devolution referendums of 1979 and 1997 acknowledged sovereignty in Scotland and Wales. Indeed, throughout the 20th century Parliamentary sovereignty was ceded repeatedly. The tiny Sultanate of Brunei only became independent from the UK in 1984, while this year David Cameron has emphasised the sovereignty of Crown subjects in the Falklands and Gibraltar."

Certainly, different political claims were advanced and recognised in these accessions and referendums - but why should we conceptualise all of them as exercises in recognising sovereignties?  Legally, much of this is problematic. But I'm conscious that law need not - and should not - have the last word on our political thinking.  But even without privileging a legal analysis, I'm not convinced that Torrance's expansive approach to defining sovereignty is terrifically helpful.  

Firstly, it is useful to bear in mind that the concept of sovereignty has multiple traditional senses and meanings. We might be talking about the sovereignty of a state recognised by international law. If you are not a state, you cannot be sovereign in this sense. Alternatively, we might want to focus more narrowly on recent British constitutional traditions, in which parliament is sovereign. Here, sovereignty relates to the idea that parliament may make or unmake any law, and its determinations about what the law ought to be generally cannot be challenged in court, as the validity of American statutes may be constitutionally challenged before their Supreme Court. 

Here, the sovereignty of parliament primarily regulates the relationship between parliament and the executive and judiciary, and between one parliament and its successors. In Torrance's third sense, we have the "Scottish constitutional tradition" of popular sovereignty, echoed by the SNP and others. Despite my Nationalist sympathies, I find much of this is pretty dubious intellectual history, tracing an questionable line from a wilful misunderstanding the oligarchy defended by Declaration of Arbroath, through misconstructions of the poisonous anti-Catholicism of the Claim of Right of centuries later - to the anti-Westminsterism of the Scottish constitutional tradition as promoted in many Nationalist circles today.  I'll vigorously defend the political principle of popular sovereignty, but lord deliver us from the ridiculous fantasy of Scotia's medieval democrats.  

The 1997 devolution referendums did not recognise any sovereignty of the Welsh or Scottish people in any legal sense, nor did joining the EU "cede" - in the sense of giving up, or alienating - parliament's sovereignty either.  Powers devolved are powers retained.  De facto it might be politically difficult for Westminster to reverse legislation adopted by Holyrood, or to abolish it outright, but de jure, the competence exists and the courts would enforce it. The same goes for the law of the European Union, which enjoys supremacy over domestic law - but for the purposes of a UK constitutional analysis, only because Parliament itself has assented to be bound by it.

In his lectures at the University of Edinburgh in the early 2000s, Professor Colin Munro gave us the traditional, if rather starchily Victorian view of Albert Venn Dicey: the Crown in Parliament is sovereign. End of. In contrast with his monolithic structure, David sees a flourishing field of different (and competing?) sovereignties.  European institutions take decisions on the scope of our human rights, and shape our ability to move, trade, work and study freely within its bounds. And David is right. Or at least, half right.

In practice, parliament mostly accepts these decisions and submits to these determinations. Holyrood follows its own path, the people decide on devolution through a legislatively-summoned referendum, and will decide on independence to boot. Who the hell is really sovereign here anyway? As Lord Hope observed in the AXA judgment of the UK Supreme Court, Holyrood is a creature of statute and not a sovereign body. Had the independence referendum preceded without the section 30 order, we might all have had cause to understand the consequences of that fact more clearly.  Sovereignty must be about more than having an influence on the political scene, or promulgating laws. The authority to get your way in the last instance matters.

But surely these realities matters more than the nice, pristine constitutional theory-building? I'd sympathise with that, somewhat. The concept of parliamentary sovereignty is a rotten guide to how the British democratic system functions.  But that doesn't mean that generalising the concept of sovereignty is the best way to knit together a better understanding. 

There is a significant risk of sogginess about Torrance's approach. If we're defining sovereignty as any decision taken by bodies discharging public function which are perceived as legitimate, and are complied with - and at its loosest, David seems to be suggesting something along those lines - where's the limit?

For example, the scale of the UK administrative state has developed significantly since the beginning of the 1900s. Ministers command executive agencies and officers, not entirely freely, but with broad statutory grants of powers by parliament.  Theoretically, parliament remains sovereign and the font of all legitimacy - but de facto, the executive has a powerful defining role. If we're being hard-headed realists, we'd note that ministers and their functionaries often get their way, making regulations, establishing the detail of a whole gamut of entitlement schemes. Parliament may be sovereign, but it is largely left to them. Should we see the administrative state as an alternative "sovereignty" too? 

The forces of organised capital have considerable impact on our law-making and policy-setting. Thanks to privatisation and the outsourcing of delivering public functions, the distinction between public and private bodies is increasingly problematic. Should we see boardrooms and businessmen as representing another alternative "sovereignty"? At its loosest, David seems to be referring to all sorts of legitimated exercises of power by "sovereignty".  I can't see what is gained - and much is lost - by generalising our conception of sovereignty in the manner he proposes.

I'd imagine David would want to draw a categorical distinction between these examples and the examples he gives.  But what's the real difference? Territory? Institutional structures? Ghostly ideas of nationality or ethnicity or somesuch? None of these seem - to me - particularly persuasive bases to make such distinctions, once you've plucked out sovereignty's distinctive characteristics, as traditionally understood.  An absolute monarch who takes good advice, and changes her mind, keeps her throne. If she is deceived by influential underlings, she also remains in place.  The quality of the advice she receives is important for the courtier or the calculating diplomat, but it does not remove her crown; sovereignty is better conceived as a thing apart from the eddies and tides which govern its exercise.

I'm also a mite perplexed by the implication that the creation-myth of parliamentary sovereignty should be seen as an outmoded and unrealistic abstraction - worthy enough stuff to inflict on undergraduates in an arid constitutional law seminar - but of peripheral interest for the practical man of the political world. If anything, the last three years has seen a remarkable upswing in the rhetoric of the "erosion of parliamentary sovereignty".  The notion is consistently invoked to criticise the legitimacy of any and every inconvenient ruling emanating from the European Court of Human Rights. Taking them on their own terms, many of the Tories who've manacled Cameron to an EU referendum would offer similar explanations for their attempt to "repatriate" relinquished powers to Westminster.  

Sovereignty's late flourishing is one of the primary reasons for my skepticism about the possibility of further devolution after a No vote.  Britian may not be a unitary state, but the political imaginations of UK politicians and media are ever-more myopic, uninterested in finding ways to integrate our increasingly politically disunited kingdom.

Our zombie broadcasters continue to ignore devolution. We hear incessantly about "the NHS", "the" education system. Recognising even this little complexity - seemingly impossible. Whatever the realities of devolution and distributed power, if a sovereign parliament sees itself and is seen by its main commentators as the only legitimate game in town - woe for the federalist, trying to unearth a new constitutional politics for the United Kingdom. 

You may well wish things were otherwise, but you might as well plant your seed in the desert.


  1. Damn you LPW. I read David's piece and agreed with all of it and now am not so sure. What I am fairly sure of is that the various interpretations of sovereignty would matter very little in the end, were we to have good will all round - which alas we don't have. Can't remember who said that the solution to the West Lothian Question was simply to ignore it - which is fine except the bloody thing didn't go away.

    LPW: 'sovereignty is better conceived as a thing apart from the eddies and tides which govern its exercise.'

    Indeed. The 1308 Coronation Oath of Edward II contains an explicit little aside on power and authority, on who determines what -

    '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?

    I grant and promise them. '

    (see http://historyofengland.typepad.com/documents_in_english_hist/2013/02/the-coronation-oath-of-edward-ii-1308.html)

    The king is sovereign, but the English 'community' (however defined) determines what it all means. Again, if everyone is getting on none of this matters a great deal.

    LPW: 'Sovereignty's late flourishing is one of the primary reasons for my skepticism about the possibility of further devolution after a No vote. '

    Well, we can but prophesy. I anticipate a No vote in September followed by further devolution, and possibly another referendum (as some have conjectured) in about 15 years time. With some of the heat taken out of the debate and some fresh leaders in play, I wonder if the proponents of independence might not actually be in a better position to win then. I also wonder if I have 15 years left to find out!

  2. I have had this discourse before but folk really need to digest the key points from McCormack vs the Lord Advocate (1953) before trotting out blethers like Torrance did today.

    In simple terms there never was a 'Union of the Crowns' the bill was thrown out by both the English and Scottish Parliaments.The UK consists of two separate realms one where Elizabeth is Queen of Scots as per the 1689 Claim of Right (Scotland) and the other is her realm of England, its colonies and dependencies where she is properly Elizabeth the Second and her 'Crown and sovereignty' lie in the English Parliament.

    Lord Cooper made clear that the constitutional concept of the 'Crown in Parliament' has no traction in Scots Law and constitutional practice where the considered will of the people of Scotland is paramount. In the run up to the AXA decision in 2011 Lallands' suggested I was naive to think the UK Supreme Court would uphold the concept of the 'considered will'. Yet in Lord Hope's judgement one of the reasons given for setting aside the AXA claim was that the Parliament at Holyrood represented the people of Scotland's considered will - re-asserting Lord Cooper's statement in 1953 which the Lord Advocate conceded on the Union Parliament at Westminster's behalf. In effect one view is the UK Supreme Court's judgement made sections 5 and 30 of the Scotland Act 1998 unenforceable. This in turn is reflected in Cameron's complete cave in over the Edinburgh Agreement and a referendum he started off by saying he would never allow to happen (and yet the only toy he threw out the pram was the one option which would maintain the Union all be it in a different form) and like many at Westminster is wishing the referendum will never happen. In the mean time the SNP got everything they wanted out of the referendum bill.

    Given the rebuff Jack Straw was given by the Scottish Courts over his attempt to fast track Megrahi back to Libya with a bill in the UK Parliament (Scots Law and constitutional practice is preserved for 'all time' by the Treaty of Union - Lord Cooper 1953) and AXA by the UK Supreme Court in 2011.

    There are serious questions to be asked about the legitimacy of the Welfare Reform Act 2012 as both at Westminster the majority of MP's holding Scottish constituency seats and the Parliament at Holyrood rejected the bill. The question then arises on just whose authority did the Secretary of State for Scotland allow Elizabeth, Queen of Scots, to give Royal Assent to this bill contrary to the conditions of her role as Queen of Scots set out in the 1689 Claim of Right? Neither the Secretary of State for Scotland nor the Queen of Scots has the constitutional power to override the considered will of the people of Scotland.

    Lord Cooper made clear in 1953 that the UK constitution was founded on very shaky foundations with its assumption that the English Parliament subsumed the Scottish Parliament under the Treaty of Union and rebuffed the claims of Bagshotte and others as being seriously flawed with respect to the actual conditions of the Treaty of Union 1706.

    Lord Cooper never thought the situation would arise where such a challenge could be mounted, given the massive fudge required to allow the Parliamentary Union to work. Devolution has changed that dynamic, the genie is out of the bottle and the days where Westminster could say 'jump' and Scotland's sole response was 'How high?' are long gone and with every attempt to return to those days the UK Parliament at Westminster's grows ever more powerless.

    No matter the result of the referendum in September 2014 - Westminster as the Union Parliament will be substantially weakened but I hope terminated.

  3. Sovereignty is an abstract notion for all other than those who live by it or off it.

    It has however purpose with the respect to the quality democracy it supports and administers.

    Stripped of the esoteric and arcane, the present models of sovereignty - as plastic and malleable as they are - are facing a new challenger on the block in the shape of the one world global conglomerates.

    For brevity I recommend the perusal of 'Free Trade' and the death of democracy, by Jason Hickel on Al Jazeera.

    1. Mr. Hickel is just pissed the 1% won't let him 'in'.
      He has been funded by Fulbright-Hays, the National Science Foundation, the Wenner-Gren Foundation, and the Charlotte W. Newcombe Foundation. And which 'world global conglomerates' fund those folks?

  4. However y'all want to define 'sovereignty', just be sure no one mentions the concept of 'sovereignty-association'.