“No man is good enough to govern another man without the other’s consent” – Abe Lincoln
KENYON Wright, convenor of the Scottish Constitutional Convention, was once asked what would happen if the UK Government said no to devolution. He famously replied, “We are the people, and the people say yes!”
The basis of this boldness was the Claim of Right of 1989, which members of the Convention had solemnly signed. This great national covenant proclaimed “the sovereign right of the Scottish people to determine the form of government best suited to their needs”.
The logic of this is undeniable. There cannot be two sovereigns. The Claim of Right insists that the immovable object of British parliamentary sovereignty must ultimately yield to the irresistible force of the sovereign people of Scotland.
This is a radical position. It explodes the one solid bedrock assumption on which all the messy and sludgy mess of the UK’s constitutional doctrine rests.
The Claim of Right has been re-endorsed by the Scottish Parliament in January 2002 and by the House of Commons in 2018. Of course, these were only resolutions, without effect in law. In law, the orthodox doctrine of parliamentary sovereignty still prevails. But that does not deny the moral and political force of the claim. It simply means that we have not yet adopted the right constitutional formula to give effect to it.
In an independent Scotland, it will be different. The sovereignty of the people – a consistent principle running through Scottish constitutional thought – will no longer be simply a moral and political claim, but a legal and constitutional fact.
How so? By the adoption of a written constitution with popular sovereignty at its core.
We already have some clues as to what that might look like. The draft Interim Constitution prepared by the Scottish Government in the summer of 2014 declared in Section 2 that “In Scotland, the people are sovereign”, and in Section 3 that “The people have the sovereign right to self-determination and to choose freely the form in which their State is to be constituted and how they are to be governed”. These would not be pious wishes. They would be the supreme law of the land.
It is one thing to praise popular sovereignty as a rallying cry, but what does it look like when it becomes a legal foundation for the state? Isn’t it a bit frightening? After all, the people are not always wise, or even benign. More harm has probably been done in the name of “the people” by tyrants and dictators who seek to speak in their name, than by any other abstract idea in modern times.
Far-right populism makes many nice liberal-minded folk recoil in horror from anything to do with “the people”.
That’s where the constitution comes in. The constitution is the written supreme and fundamental law that expresses, embodies and institutionalises the will of the people.
It does this in two ways. Firstly, it establishes a system of government “of the people, by the people, for the people”. It establishes rules that give the people control over their government – through free, fair and regular elections, backed by basic democratic freedoms like freedom of expression, association and assembly. The constitution is the rulebook of democracy.
Secondly, it gives people a final say on any changes to the constitution itself. Those we elect can’t change the rules by which they hold power. Power is delegated to Parliament but belongs to the people. Only we the people – “the whole community of the realm,” as the Declaration of Arbroath puts it – can change the basic rules of the game.
In other words, popular sovereignty does not mean that whatever a majority of the people want at any given moment becomes law, regardless of its consequences for minorities or individuals. That would be arbitrary and tyrannical. It certainly does not mean that every question, big or small, must be settled by referendum. That would be impractical. It simply means that the state belongs to all of us and we get a final say in the really big decisions – the constitutional decisions – that are foundational to our democracy.
The SNP’s 2002 draft constitution, prepared by Neil MacCormick and others, made this clear: an elected parliament could make ordinary laws by ordinary majorities, but only within the terms set by the constitution. To change the constitution itself would need a three-fifths majority in Parliament followed by a referendum – deep and broad approval for deep and broad changes. That’s what it means to have a country and to be a free and sovereign people.
There are plenty of analogies. Parliament is captain, but we own the ship. Parliament is the tenant, but we are the landlord. Parliament is the servant – a trusted, chosen servant, with plenty of discretion to order our affairs as they see fit – but we are still the master.
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