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Bonds of Union

 | 
Isabelle Bour
, 
Antoine Mioche

Spectre at the feast: Parliamentary Sovereignty and the Union Settlement of 1998

Stephen Tierney

Texte intégral

  • 1 In constitutional matters terminology is important. According to the orthodox English legal positi (...)
  • 2 The notion of “union state” in the Scottish constitutional tradition imagines the United Kingdom a (...)
  • 3 Section 37 discussed below.

1The Scotland Act 1998 by which devolution was introduced for Scotland was widely seen north of the border as a new union settlement with England. The parliament at Westminster, fruit of the union of parliaments of 1707, remained in place, but now a second parliament was born through which Scotland’s distinctive constitutional traditions might be refound and developed to meet a modem nation’s needs in a globalising world. This chapter will address the historical legacy of the Treaty of Union1 of 1707, and in particular will focus upon the vision of the United Kingdom as a “union state” which endures in contemporary Scottish constitutional thought.2 The Scotland Act 1998 states that the Acts of Union are now subject to the Scotland Act itself;3 and in this sense it might seem that the Acts of Union are now redundant in constitutional terms: replaced by a modern settlement legislated for by the Westminster Parliament. It is in this context that the essay will consider whether the Treaty is indeed now a constitutional irrelevance following the devolution settlement embodied in the 1998 Act, or whether in fact the “union state” concept might be revived by the new devolution arrangements, ushering in a new age of multilevel governance in the UK where constitutional certainties, in particular that of Westminster’s legislative supremacy, might be called increasingly into question.

  • 4 In the sense we might say that Scotland and England comprise distinct “societal cultures” (Kymlick (...)
  • 5 It is the political as opposed to cultural nature of Scottish nationalism which allows us to chara (...)

2In many ways both the identity of modern Scotland and the form of nationalism which now characterises that identity have been shaped by the legacy and the memory of union. If nations are, as Benedict Anderson would have it, “imagined communities”, then the Union has played and continues to play a significant part in shaping the Scottish imagination. The modernity of Scottish nationalism as an essentially “civic” enterprise can be traced in large part to the historical development of indigenous institutions of civic and public life which emerged before the union of parliaments and which were in some measure explicitly preserved by it, bequeathing marks of cultural and institutional distinctiveness which continue to demarcate the societal boundaries between Scotland and England today.4 Importantly for the constitutional lawyer, these institutions were civic as opposed to political or governmental. Scotland in the post-Union period did not enjoy legislative autonomy like that accorded for example to Quebec in the federal system established by the British North America Act of 1867. Instead Scotland retained a separate established church, a distinctive legal system based (like Quebec’s) upon the “civilian” or Roman tradition (as opposed to the Anglo-Saxon “common law” tradition), its ancient universities, and the Scottish system of local government. It was not until the late nineteenth century that “administrative devolution” (Paterson) was established in Scotland with the founding of the office of Secretary of State for Scotland in 1885 (which became a cabinet office in 1926), an innovation followed by the creation of the Scottish Office in 1928. The existence of the Scottish Office added a governmental dimension to Scottish distinctiveness, and this administrative autonomy supplemented the distinctive civil society which had flourished since the Union. In doing so it provided an institutional context within which modem Scottish national identity could develop as a political as well as a cultural force.5

  • 6 “Parliament... has, under the English constitution, the right to make or unmake any law whatever; (...)

3The politico-constitutional terrain of the United Kingdom has of course been dominated from the beginning by the English constitutional doctrine of parliamentary sovereignty, a doctrine which encapsulates the notion of the legislative supremacy of the Queen in Parliament. This doctrine, entrenched by the English common law courts, has been bolstered in institutional terms by the UK constitution’s unitary and largely unwritten nature. According to this thesis, within a unitary United Kingdom Parliament was the only source of legislative authority and no written settlement existed which might restrain its hegemony by providing an alternative “rule of recognition” (Hart). The great constitutional jurist Α. V. Dicey described this doctrine as possessed of both a positive and a negative aspect. In a positive sense Parliament has the power to make or unmake any law, and in the negative manifestation of sovereignty no other body can make law for the United Kingdom.6

  • 7 As Himsworth and Munro note, “[t]his provision translates that orthodox theory of the legislative (...)

4Therefore, to take a prescient example, it would seem logically to follow that Parliament’s legislative supremacy is unaffected by devolution to Scotland. The White Paper which preceded the Scotland Bill stated plainly: “the UK Parliament is, and will remain sovereign in all matters,” and “Westminster will be choosing to exercise that sovereignty in devolving legislative responsibilities to a Scottish Parliament without in any way diminishing its own powers. The Government recognise that no UK Parliament can bind its successors” (UK Government para. 4.2).7

THE SCOTLAND ACT 1998 AND THE TREATY OF UNION

5The orthodox position is seemingly endorsed by two provisions in the Scotland Act itself. Section 28 provides the Scottish Parliament with the power to make law. However, s. 28 (7) states: “This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.” Secondly, in order to make clear that the Treaty of Union cannot be used to trump the Scotland Act, s. 37 provides: “The Union with Scotland Act 1706 and the Union with England Act 1707 have effect subject to this Act.”

6Is it the case then that the Treaty of Union is redundant in the post-devolution world? It is submitted that for a constitutional lawyer to make such an assumption would be to miss the political dimension of both the Union and the Scotland Act by which it has arguably been reconstituted. The Treaty of Union, as a constitutional settlement has often been characterised as a marriage of convenience, a mariage de raison in the language of Scotland’s auld ally (McCrone). The Scotland Act of 1998 represents the fact that, nearly three centuries later, the marriage, which in constitutional terms had never been radically altered, had come to be seen by many Scots as increasingly inconvenient, at least in its current form. As such it might be argued that within Scots law the Scotland Act, in revising the union, has taken on the form of a “constitutional statute” of the highest significance, a suggestion which will be returned to later.

7In attempting to answer the question of the union’s lingering importance it is important by way of background to explore how even today, despite the unitary structure of the UK constitution, and despite the overwhelming weight given to Diceyan orthodoxy, there has persisted within Scottish politico-constitutional discourse a view that Westminster’s self-assumed supremacy is not necessarily untrammelled. Stemming from the Union Treaty arguments have lingered which challenge this orthodoxy. It seems that these historical constitutional arguments are now being recharged by the modern democratic thesis of popular sovereignty, and that together these two traditions can present a contemporary challenge to Dicey. In other words, two distinct challenges to Parliament’s selfproclaimed supremacy have the potential to work together post-1998. The first is a “constitutionalist” challenge founded upon the historical circumstances and the textual construction of the Union Treaty (what might be termed the “union state” argument); the second challenge finds its energy in modern democratic and republican theory and asserts that the Scotland Act embodies a new settlement between Scotland and the rest of the UK, and as such represents an expression of self-determination by the Scottish people. According to the latter argument the important terms of the Scotland Act may only be changed by the people or by the consent of the Scottish Parliament (the “popular sovereignty “argument). This latter challenge is itself supported by the first. The popular sovereignty of Scotland expressed through the Scotland Act is given added constitutional value because the Scotland Act itself represents a reformulation of the 1707 settlement. Therefore, two principles—constitutionalism and democracy—which are often found to conflict in standard constitutional discourse (Tully), seem to combine here as useful allies in attempts to argue that the Scotland Act is to some extent “entrenched.” In this sense it may yet be that the origins of the Union will provide a historical context within which contemporary disputes surrounding the 1998 “settlement” are played out.

THE UNION STATE ARGUMENT IN CONSTITUTIONAL CONTEXT

  • 8 Act Ratifying and Approving Treaty of the Two Kingdoms of Scotland and England, A. P. S., xi, 406, (...)
  • 9 Act of Settlement 1700, Halsbury’s Statutes, vol. 10, at 40. Therefore, as mentioned in the introd (...)

8Beginning with the “union state” thesis, the dominant story of the union in English constitutional thinking is that of an incorporating marriage; the normative structure of the English constitution subsumed that of Scotland, and thereby the English Parliament in effect continued in existence, surviving the Union of Parliaments despite the formula contained in the Acts of Union which provided for a new parliament. With the institution of the English Parliament passing into the new order of Great Britain with its lineage unbroken, it brought with it the nascent principle of its own legislative supremacy—the legacy of the English Parliament’s victory over the Stuarts. Therefore, according to this story, the defining moment of the Union was not the Act of Union passed by the Scottish Parliament and by which the Scottish Parliament abolished itself in anticipation of the birth of a new parliament; but it was instead the Act passed by the English Parliament on 16 January 1707.8 By this legislative act, the dominant vision suggests, the English Parliament incorporated that of Scotland, and in effect reconstituted itself as the Parliament of Great Britain. By this reading, the process of union was one in which the blood-line of the English constitution passed unbroken into the new age as heir to the Stuarts’ self-ascribed supremacy. Thus, the English narrative of the unitary constitution, born of an incorporating union, concludes with a single, easily identifiable source of legal sovereignty—the legislative supremacy of the Parliament of Great Britain, fruit of that seed already planted in the radicalism of pre-Revolutionary English constitutionalism and ratified in the pre-Union Act of Settlement.9

  • 10 It has been argued that the Scottish delegates who negotiated the Treaty favoured an early form of (...)
  • 11 Although this union state argument tends to merit no more than a paragraph or two in the main text (...)

9Many Scots at the time of the union held a different conception of what union would mean,10 and very occasionally in the twentieth century an alternative reading of the settlement received sufficient succour from the Scottish courts to keep a faint pulse in the idea that the Scottish legal system, which did survive the union, has, in constitutional as well as political terms, retained a different interpretation both of the nature of the union and, perhaps, of the location of legal sovereignty itself in the post-union state.11 Therefore, the union state argument is predicated upon the sense that the union between the parliaments of Scotland and England is the foundational “moment” of the British constitution. The UK may not be a federal system, but it is a union state built in 1707 upon the union of two nations (Rokkan and Urwin, “Introduction”). This argument holds possible implications for two of the assumptions which underpin the doctrine of parliamentary sovereignty: first, that the British constitution is “unwritten” and secondly, that all Acts of the Parliament are of equal value and are ultimately open to repeal by the UK Parliament. The constitution of the UK according to the union state argument is “written” or is at least partially so, through the Acts of Union which constitute a Treaty (J. D. B. Mitchell 93-98; Munro 138). From this process, a new Parliament for Great Britain emerged which did not necessarily acquire all of the idiosyncratic trappings of its English predecessor, in particular the emerging notion of its own legislative supremacy. Instead, what emerged was a new state with two equal constituent nations, each bringing to the Union its own constitutional traditions, neither of which should necessarily take precedence over the other. By the union state thesis the Acts of Union are of higher constitutional value than subsequent “ordinary” acts of the new Parliament, and certain aspects of the Acts of Union are not necessarily open to repeal by Parliament. As has been mentioned, this doctrine was given occasional sustenance in twentieth-century judicial decisions, most prominently in the comments of Scotland’s senior judge, Lord President Cooper in MacCormick v. Lord Advocate:

The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish Constitutional Law... Considering that the Union legislation extinguished the Parliaments of Scotland and England and replaced them by a new Parliament, I have difficulty in seeing why it should be supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament, as if all that happened was that Scottish representatives were admitted to the Parliament of England. This is not what was done... I have not found in the Union legislation any provision that the parliament of Great Britain should be free to alter the treaty at will... (MacCormick v. Lord Advocate (1953), Session Cases 396 at 411)

  • 12 Gibson v. Lord Advocate [1975] (Scots Law Times 134). Attempts to raise this issue before the cour (...)
  • 13 However, for the alternative view that the Acts of Union retained special legal significance (at l (...)

10There have, however, been few examples of judicial recognition of a different and enduring Scottish tradition,12 leading many to argue that the Acts of Union do not survive in any real legal sense as fundamental constitutional texts, particularly given the numerous repeals and modifications to which they have been subjected (Munro 137-42), not the least of which is s. 37 of the Scotland Act 1998 which has been cited above.13

THE SCOTLAND ACT AND POPULAR SOVEREIGNTY

  • 14 An example of how deeply it is embedded in Scottish political culture arises from the speech made (...)

11It is the contention of this essay that the political argument that the UK is a union state is reviving at least in part through the more modern thesis of popular sovereignty. This, the second challenge to parliamentary sovereignty which was referred to above, has taken on considerable political currency in the past fifteen years in particular. It focuses upon the idea that Scotland is a nation, with a right of self-determination (the idea of Scotland as a nation is also obviously central to the union state argument, and thereby serves to link these two arguments). It is a curious fact that successive British governments have operated upon the understanding that Great Britain is a voluntary union which may be dissolved at the will of either party, a notion confirmed by, amongst others, successive leaders of the Conservative Party in the 1980s and 1990s. The popular sovereignty argument holds that this idea of Scotland being, at least in political terms, sovereign, may yet have a part to play in the constitutional story of Scotland’s development post-devolution. Although it may build upon the positivist idea of Scotland retaining a distinctive constitutional tradition, its real life-force stems from the political impetus of modern republican doctrines, and a conceptual merging of the political and the legal aspects of sovereignty.14

  • 15 What the nature of the Scottish constitutional tradition was in 1707 is of course open to much deb (...)

12Before moving to discuss this idea of popular sovereignty further, it is worth noting that Lord President Cooper’s conclusion in MacCormick that the principle of the unlimited sovereignty of Parliament had no counterpart in Scottish constitutional law does not necessarily offer definitive guidance as to where, alternatively, sovereignty may be found within the Scottish constitutional tradition.15 It is perhaps partly on account of this vacuum that the political claims of popular sovereignty assumed considerable force in both the extra-parliamentary campaign for devolution and in parliamentary debates on the Scotland Bill (which became the Scotland Act 1998). The notion that sovereignty in Scotland is vested in the Scottish people, who consequently have the right to determine their own political arrangements, first emerged as a serious claim from the extra-parliamentary campaign for devolution in the 1980s and 1990s.

13The Campaign for a Scottish Assembly was launched in 1985 and resulted in the Claim of Right for Scotland which it issued in 1988, and which declared the right of Scotland to self-government. This had as its main thrust the claim that sovereignty in Scotland rests with the Scottish people. The revolutionary spirit of Scotland’s revolution and of its Claim of Right of 1689 echoes in the Claim of 1988. The earlier document, more radical than the English Bill of Rights, accused James VII of inverting the ends of Government. The 1988 version in less hostile terms accused the UK constitution of betraying the Treaty: “the Scots are a minority which cannot ever feel secure under a constitution which, in effect, renders the Treaty of Union a contradiction in terms” (Claim of Right 19).

  • 16 The Scottish National Party withdrew from the Convention because of its commitment to independence (...)

14The Claim of Right recommended that a cross-party Scottish Constitutional Convention be established, vested with the task of drawing up a scheme for home rule, to mobilise the people behind it, and to “assert the right of the Scottish people to secure the implementation of that scheme,” as later articulated in Scotland’s Claim, Scotland’s Right (10). This was inaugurated on 30 March 1989 and over the next seven years it embraced much of Scotland’s political elite, involving inter alia the Labour and Liberal Democratic parties, local authorities, churches and the Scottish Trades Union Congress.16 This resulted in a series of publications, the most important of which, Scotland’s Claim, Scotland’s Right was published on 30 November 1995 setting out a detailed blueprint for devolution remarkably similar to the eventual model enacted through the Scotland Act.

  • 17 This was signed by every Scottish Labour MP at the time with the exception of Tarn Dalyell. Althou (...)
  • 18 According to James Mitchell, the declaration of popular sovereignty which Scotland’s Claim, Scotla (...)
  • 19 As Keating puts it, Thatcher’s attacks on civil society “were widely seen as an abuse of parliamen (...)

15What is particularly interesting about this document (bearing in mind the strong involvement of the Scottish Labour Party in the Scottish Constitutional Convention) is that the Convention shared the earlier commitment of the Campaign for a Scottish Assembly to the idea of popular sovereignty. As the Scottish Constitutional Convention declared: “we, gathered as the Scottish Constitutional Convention, do hereby acknowledge the sovereign right of the Scottish people to determine the form of Government best suited to their needs....”17 It is here that we see the joining of the two arguments—union state and popular sovereignty. Rather than a rejection of the Union constitution, the Convention document can in fact be seen as a reaffirmation of the UK constitution—the constitution of a union state.18 It is a critique which contends that this constitutional pact was being broken by the central authority of the state, particularly as a result of the Thatcher government’s process of constitutional centralisation; more radically it also seems to suggest that this process of “unconstitutional” behaviour entitled Scots to revise the union, if needs be, unilaterally.19

16No cases have come before the courts further to the 1998 devolution settlement which have required judicial consideration of these arguments. In particular the courts have not been asked to consider whether the power of the Westminster Parliament to amend the powers of the Scottish Parliament is in any way limited. But Martin Loughlin, Professor of Public Law at the London School of Economics asks: “although the Scotland Act 1998 takes the form of a devolution of legislative authority to a subordinate body, is it inconceivable that the courts would rule that powers conferred on the Scottish Parliament cannot lawfully be withdrawn without the consent of that institution?” His answer is: “To apply a Hobbesean metaphor, it might be said that the (legal) skeleton of sovereignty has, for the moment, been retained but in order to retain the life of the concept, the (political) nerves, arteries and vital organs must continue to work effectively. The prognosis does not look good” (154).

ENGLAND AND THE END OF PARLIAMENTARY SUPREMACY?

17Recent developments in English law offer an interesting analogy as we speculate upon the impact of the Scotland Act. South of the border the orthodox doctrine of parliamentary sovereignty has come under challenge from a different direction, namely the UK’s accession to the treaties of the European Communities. The fundamental principle of EC law is its supremacy within areas of EC competence. This principle was seemingly accepted by the UK in the European Communities Act 1972 in a way which appeared to be an attempt by the 1972 Parliament to bind its successor Parliaments. This has indeed been accepted by English courts although debate has continued as to why this supremacy has been accepted—i.e., do the courts now accept the Treaty of Rome as the supreme law of England, or do they merely accept EC supremacy because it has been incorporated through the 1972 Act? A recent addition to the debate suggests that parliamentary sovereignty can be amended by the English common law courts. This case concerned the “Metric Martyrs”—greengrocers in Sunderland who, contrary to EC Law, continued to sell fruit and vegetables by imperial measurement. In this case a prominent English judge in the Court of Appeal, Lord Justice Laws declared: “The conditions of Parliament’s legislative supremacy in the United Kingdom necessarily remain in the United Kingdom’s hands. But the traditional doctrine has in my judgment been modified. It has been done by the common law, wholly consistently with constitutional principle” (para 59). He argued that the common law has now distinguished certain statutes as “constitutional statutes” which Parliament cannot amend or repeal by implication, but only by express intention. Among these are the European Communities Act and the Scotland Act.

  • 20 They have hitherto shown no inclination to do so in the devolution context

18In other words, Lord Justice Laws has argued that by way of the English common law, English judges have the power to effect a judicial modification of the doctrine of parliamentary sovereignty. If such a transformation in English law is indeed taking place, and from one case alone it is certainly too early to tell, the question is begged as to whether, and if so how, the doctrine of parliamentary sovereignty might also be modified in Scots law. Lord Cooper in the MacCormick case could find no grounds for the sovereignty doctrine in Scots law whatsoever. Although Scots courts have accepted the doctrine at least in practice, it would be interesting to discover if they will continue to apply an overtly English common law principle when the English common law is itself beginning to dispense with it. While it seems unlikely that Scots courts would rapidly undermine the doctrine20, there are important questions which must now be asked concerning the Scotland Act’s relationship to the doctrine.

  • 21 Aughey suggests: “The referendum was a way of acknowledging that a devolved Parliament within the (...)

19If English courts begin to question the traditional construction of the sovereignty thesis vis-à-vis “constitutional statutes,” how might Scots courts modify it in respect of the Scotland Act, which is now widely seen in Scotland not just as a constitutional statute, but as a foundational settlement for a reconstituted union? It has been noted above that the Treaty of Union has always been treated as a constitutional document by Scottish nationalists and that according to them the Scotland Act, popularly affirmed in a 1997 referendum, is also a constitutional document or “constitutional statute.”21 Following from this, Scottish nationalists would argue that in terms of Scots common law the status of the Scotland Act should be elevated beyond the status which Lord Justice Laws suggests the English legal system should be prepared to accord it. Laws has declared that the English common law can modify Westminster sovereignty to protect the Scotland Act from implied repeal. Is it inconceivable that Scots common law courts would attempt to protect important provisions of the Scotland Act from even express repeal, unless such repeal has the consent of the Scottish Parliament?

  • 22 Some commentators have begun to ask whether the Scotland Act represents a move “beyond a unitary c (...)
  • 23 Even those who cling to the formal positivism of Westminster’s retained sovereignty qualify this i (...)

20Such a declaration would be tantamount to a judicial declaration of quasi-federalism—in other words, that under the new settlement Scotland should be guaranteed a role in constitutional change at least insofar as such change affects Scotland’s devolved powers. As yet there is no indication that the courts would be prepared to make such a declaration. However, in light of the inroads made upon the parliamentary sovereignty doctrine by EC law, and in reference to the radical approach to the doctrine seemingly portended by Lord Justice Laws in Thoburn, such a possibility may seem less fanciful than it once did.22 It is possible to draw an analogy between these legal developments and the influence which one nation’s politics can have upon those of another nation within the UK. In discussing the recent rise of English nationalism for example, Arthur Aughey suggests that in many ways it is a reaction to nationalism elsewhere, leading the English to question the point of the UK: “if Britain cannot stay the way it has been, then why is Britain anyway? If they—the Scots, the Welsh and the Irish—don’t want it, why should we—the English?” (53) The judgment by Laws in Thoburn perhaps reverses this question in the legal context. If the English common law no longer wants a rendition of untrammelled parliamentary sovereignty when major constitutional statutes suggest an alternative path, why should Scots law?23

21To conclude, it seems that the constitutional legacy of the Union was one in which the dominant doctrine of the unwritten British constitution was that of Parliament’s legislative supremacy. This doctrine was never fully accepted in Scots law. The political impetus of the Scotland Act means that in political terms at least, any attempt to amend the Scotland Act’s important provisions without the consent of the Scottish Parliament would be highly controversial. The Scotland Act, inspired by parliamentary sovereignty, has revealed a notion of the United Kingdom as a union state. In doing so it has perhaps reawakened the distinctive traditions of Scottish constitutionalism which without the institutional infrastructure now provided by devolution, had lain dormant until 1998. The conjunction of these two elements feeds a vision of a new union in which sovereignty should be shared. It is interesting that the English doctrine of Parliament’s supremacy is now being undermined within English courts. In light of the external influence of the European Union and the internal pressures of Scottish devolution, the legal as well as the political strength of traditional dogma may not for long be able to resist a federal, plurinational United Kingdom, or indeed the United Kingdom’s gradual accession to a federal Europe.

Bibliographie

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Notes

1 In constitutional matters terminology is important. According to the orthodox English legal position (which I will explore below) the notion of “Treaty” barely survives in law (Munro). The Union took place by virtue of the Acts of Union—the Union with England Act 1707 and the Union with Scotland Act 1706. For many, the only relevant legal document in English law is the latter act, an issue discussed below.

2 The notion of “union state” in the Scottish constitutional tradition imagines the United Kingdom as a state within which different national partners have retained their distinct national, and in Scotland’s case legal, identity.

3 Section 37 discussed below.

4 In the sense we might say that Scotland and England comprise distinct “societal cultures” (Kymlicka).

5 It is the political as opposed to cultural nature of Scottish nationalism which allows us to characterise it as “civic” as opposed to “ethnic” or “romantic” (McCrone).

6 “Parliament... has, under the English constitution, the right to make or unmake any law whatever; and, further, ... no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament” (Dicey 38).

7 As Himsworth and Munro note, “[t]his provision translates that orthodox theory of the legislative supremacy of the UK Parliament into statutory expression” (Himsworth and Munro 36).

8 Act Ratifying and Approving Treaty of the Two Kingdoms of Scotland and England, A. P. S., xi, 406, c. 7.

9 Act of Settlement 1700, Halsbury’s Statutes, vol. 10, at 40. Therefore, as mentioned in the introduction, by this reading the two Acts of Union do not constitute, as they have often been taken to have constituted, a “treaty.” Neil MacCormick has noted that in the English common law it is the English enabling Act which is referred to as “the” Act of Union. He compares this to a majority share-holder whose legislative acts are decisive (MacCormick, “Constitutional Path” 727-28). See also Murkens et al. 40, and Dicey 42. A recent example of this English common law approach is offered by the English judge, Lord Justice Laws. In his recent account of “constitutional statutes,” he lists inter alia “the Act of Union” (Thoburn v. Sunderland City Council [2003] Queen’s Bench 151, para 62)—in other words, the Union according to English common law was effected by the Act of Union with Scotland, and not by the two Acts of Union combined. However, note Jacobs for an interesting argument that the radicalism of the revolutionary era in fact had its roots in the Scottish reformation, as he argues “if there is one British constitution, it is more of Scotland than of England” (Jacobs 306).

10 It has been argued that the Scottish delegates who negotiated the Treaty favoured an early form of federal agreement (MacCormick, Questioning Sovereignty Law 55-60; Munro 138; Walker 394-95).

11 Although this union state argument tends to merit no more than a paragraph or two in the main text-books on British constitutional law (e.g. Bradley and Ewing 81-82; Loveland, 41-42; McEldowney 10).

12 Gibson v. Lord Advocate [1975] (Scots Law Times 134). Attempts to raise this issue before the courts occur from time to time: Pringle, Petitioner [1991] (Scots Law Times 330) and Murray v. Rogers [1992] (Scots Law Times 221). See Walker and Himsworth.

13 However, for the alternative view that the Acts of Union retained special legal significance (at least prior to the Scotland Act) see Smith 99; J. D. B. Mitchell; and MacCormick, “Does the United Kingdom Have a Constitution?” See also a recent account by a prominent English judge, Lord Bingham. Discussing Dicey’s work, Bingham offers the Treaty as an exception to Dicey’s principle of parliamentary supremacy. “In the Act of Union with Scotland 1707 [(sic)] certain articles were stated to be fundamental and unalterable. Since the Scots and English Parliaments which made what was in effect a treaty had ceased to exist, and since the fundamental and unalterable status of these articles formed part of the terms on which the Scots agreed to unite, it must be at least questionable whether the UK Parliament could lawfully amend or revoke these articles, at any rate without clear evidence of Scottish support” (Bingham, “Dicey Revisited” 45). Notably, Bingham refers only to the Act of Union with Scotland passed by the English Parliament, and not also to the Act of Union with England passed by the Scottish Parliament. See also Bingham, The Business of Judging 247-48. Another commentator, Rodney Brazier, observes: “The Articles of Union, given legislative effect by the Union with Scotland Act 1706 and the Union with England Act 1707, created a United Kingdom of Great Britain, involving the merger of the Scottish and English Parliaments—the effect, incidentally, of which merger on the sovereignty of the new Parliament never being fully settled” (Brazier 97-98); see also Upton 79; Laws 84-89. Even s. 37 can be seen to fit with Lord Bingham’s argument that it is questionable whether the UK Parliament could lawfully amend or revoke fundamental and unalterable articles within the treaty without clear evidence of Scottish support The Scotland Act was preceded by a referendum in Scotland which resulted in a strong Yes vote for devolution, in other words a manifestation of such support

14 An example of how deeply it is embedded in Scottish political culture arises from the speech made by Winnie Ewing, the Scottish National Party (SNP) politician. Speaking at the opening of the Scottish Parliament on May 12, 1999, she proclaimed: “The Scottish Parliament, adjourned on the 25th day of March in the year 1707, is hereby reconvened.” Interestingly, her comment provoked little controversy.

15 What the nature of the Scottish constitutional tradition was in 1707 is of course open to much debate. There is, however, a strong argument that the power of the monarch was substantially weaker in Scotland than in England both as political fact and in constitutional doctrine. See, for example, Buchanan. In Buchanan can be seen an early notion of government as a contract to which the king, as well as his subjects, is bound. The subjects were the source of law and accordingly they had “the rights and duty to wage war on those who will not accept the rule of law” (Jacobs 309). Neil MacCormick suggests that prior to the union Scotland already enjoyed a constitutional commitment to some form of popular sovereignty. Following Buchanan, he argues: “The picture is one in which sovereignty belongs to the people who entrust sovereign powers to rulers therefore limited by the express or implied terms on which the powers are entrusted to them” (MacCormick, “Constitutional Path” 729-30). Again, this might support my idea of the union state thesis combining with the popular sovereignty thesis. Scotland’s discrete constitutional traditions, in light of modern democratic doctrines, might be “refurbished and pressed into new use” (Keating 23; Nairn).

16 The Scottish National Party withdrew from the Convention because of its commitment to independence, and the Conservatives refused to take part onaccount of their commitment to the unitary state.

17 This was signed by every Scottish Labour MP at the time with the exception of Tarn Dalyell. Although advocating the modern notion of popular sovereignty, Scotland’s Claim, Scotland’s Right also noted Scotland’s differing constitutional tradition: “This concept of sovereignty [the Westminster model] has always been unacceptable to the Scottish constitutional tradition of limited government or popular sovereignty.” (This seems to echo MacCormick’s reading of Scottish history cited above.)

18 According to James Mitchell, the declaration of popular sovereignty which Scotland’s Claim, Scotland’s Right contained was “a radical statement” and “the 1950s EIIR case pursued by MacCormick had finally had a major impact” (161).

19 As Keating puts it, Thatcher’s attacks on civil society “were widely seen as an abuse of parliamentary sovereignty and therefore a violation of the unwritten norms of the constitution. This sentiment was especially strong in Scotland, where the union is still seen as a compact” (Keating 26-27).

20 They have hitherto shown no inclination to do so in the devolution context

21 Aughey suggests: “The referendum was a way of acknowledging that a devolved Parliament within the United Kingdom was a legitimate act of self-determination by the Scottish people” (141).

22 Some commentators have begun to ask whether the Scotland Act represents a move “beyond a unitary conception of the UK constitution” (Walker). Walker notes interestingly that “the exclusion of federalism from a unitary framework implies nothing about the acceptability of other methods of accommodating territorial diversity” (395). The UK constitution, he argues, remains a flexible instrument to accommodate difference. It seems indeed that Laws’judgement in Thoburn hints at how flexible it can be. Walker notes the possibility of “quasi-federalism” in the political, if not overtly legal, commitment by the UK government and Parliament to an entrenched devolution settlement for Scotland (396). “The key point is that the British state has come closer than ever before to conceding that its retention of legislative omnicompetence in the context of a devolution process is a matter of legal rather than political substance; in other words, while ritual deference continues to be paid to the legal theory of the unitary state, the developing culture of negotiation and balanced settlement reflects a rather different political understanding” (397).

23 Even those who cling to the formal positivism of Westminster’s retained sovereignty qualify this in recognition of political realities: “while orthodox legal doctrine will continue to assert that that authority [the sovereignty of Parliament] could be retaken at any time, as a matter of political reality any such action might well be out of the question, and a further important limitation on parliamentary sovereignty will have slid into place” (Brazier 101).

Auteur

University of Edinburgh
Reader in Public Law at the University of Edinburgh. He has published widely in the areas of comparative public law and international law, particularly on the subject of national identity and its legal accommodation; he is also a member of the editorial board of the journal European Public Law. His most recent book is the monograph Constitutional Law and National Pluralism published by Oxford University Press in 2004

© Presses universitaires François-Rabelais, 2005

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