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Iain McLean: Scotland’s Choice and the Constitution(s): Are We All Neil MacCormick’s Bairns?

Together with Jim Gallagher and Guy Lodge, I have recently published Scotland’s Choices: the referendum and what happens afterwards (Edinburgh University Press, 2013). The referendum process is the most important constitutional development in Scotland since 1707: obviously if the people vote Yes, but (I argue) even if they vote No. Our book aims to explain to the interested voter what is at stake, without taking sides. The issues are broad, deep, and rapidly changing – which has meant that pinning them down in a printed text was frustrating. Things that seemed both important and controversial one week were settled the next (such as question wording and the number of questions to be asked). Others continue to develop in unexpected ways (for instance: the terms of independent Scotland’s membership of the EU, NATO, and the Council of Europe; the terms of any financial, fiscal, and currency agreement between independent Scotland and the rest of the UK). In this post I will use the up-and-coming acronym rUK to denote the rest of the UK, as Scotland’s negotiating partner after a Yes vote.

Our book attempts to cover all the big unresolved issues. This blog post is an opportunity to reflect, more closely and narrowly, on the constitutions of Scotland and the UK. Important disclaimer: We are not lawyers. But I like to feel that we are all Neil MacCormick’s bairns. (Well, I am; not sure about my co-authors). What do I mean by that claim? And what follows from it?

The core MacCormickite claim is that the Treaty and Acts of Union of 1706-7 were a genuine bargain. Sure, they were a bargain between very unequal partners, but the English did not hold all the cards. The Duke of Hamilton had brought them to the table by getting the Scottish Parliament to agree that if the English did not come to terms, the Parliament might not accept the Hanoverian succession: in other words, that it might break the union of the crowns of 1603. In 1706, the crowns of England and Scotland were already held on different terms. William and Mary had accepted the Scottish crown on the terms offered by the Scottish convention parliament in the Claim of Right Act 1689: an entirely separate set of terms to those demanded by the English in their Bill of Rights.[i]

Prominent Scots have been issuing Claims of Right for a long time: in 1689, in 1842, and in 1989. Each contained a denial of unlimited parliamentary sovereignty, and an assertion in some shape or form of the sovereignty of the people of Scotland. A high point was Lord President Cooper’s famous obiter dictum in MacCormick v. Lord Advocate (1953) S.C. 395 at 411:

The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law….  I have difficulty in seeing why it should have been 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 in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done.

The texts of the Treaty and Acts of 1707, he goes on, contain some clauses that are declared to be capable of being modified by the new Parliament, and others stating

that the provision shall be fundamental and unalterable in all time coming…. I have never been able to understand how it is possible to reconcile with elementary canons of construction the adoption by the English constitutional theorists [i.e., A.V. Dicey – IM] of the same attitude to these markedly different types of provisions.

This is a powerful and, I would say, historically valid argument.[ii] But, you may fairly say, it has never had any practical consequences. It was delivered in passing, in a court that had already held against John MacCormick (father of Neil) on other grounds. It has been suggested that Cooper was able to be so bold just because nothing was at stake. More recent attempts to give the “sovereignty of the Scottish people” some bite have got nowhere: for instance, during the debate in early 2012 as to which Parliament had the right to commission an independence referendum with legal force. However, as Aileen McHarg commented on another legal blog during that debate:

is it [the independence referendum] a renegotiation of Scotland’s place within the union on behalf of the sovereign Scottish people (the union state narrative)?... [This] narrative … has considerable political resonance within Scotland (whatever its historical or legal plausibility).

Lord Cooper’s obiter may well be implausible law. But, as a (moderate) MacCormickite, I insist that it is good history. The 1707 Treaty negotiations were conducted when each negotiating state had recently invaded the other; but nobody except Oliver Cromwell had conquered Scotland, and that did not last long. The parties knew that they had to coexist.

Just as 1707 was a true treaty, so will be 2014 if the answer is Yes. Getting us to where we are has required the cooperation of both the Scottish and UK governments. And as everybody knows, a Yes will be the beginning, not the end, of the serious treaty bargaining. Nobody knows (just to take the most recent controversy) whether Bank of Scotland and RBS £20 notes will still be circulating in 2016, nor, if they are, whether they will be accepted in England.

If the answer is Yes, then the Scottish constitution will very likely have a MacCormickite (Cooperite) tone. It may have yet another Claim of Right in its preamble, stating that “We, the people of Scotland, do ordain and establish this constitution for Scotland”. (Some of the drafters of the US Constitution of 1787 were Scots, or educated by Scots. But that is for another post, another time). Neil MacCormick was involved in an earlier piece of constitution-drafting for the SNP, and his influence may be detected in the Scottish Government’s recent discussion draft.

If Scotland gets a new constitution, so must the rUK. It may not be codified, and it may preserve the forms of parliamentary sovereignty, which are under attack from many other quarters including European law and some judgments in the higher UK courts. But it must at least deliver a new electoral system, reorganise the upper house of the UK Parliament, and deal with the international repercussions of Scottish independence. Scottish independence will have largely solved the West Lothian question, and the rUK constitution can reduce the Commons representation of Wales and Northern Ireland without further repercussions. At a sub-constitutional level, Scottish independence makes the Barnett formula utterly untenable and the government of the rUK will have to radically rethink its arrangements for block grants to its remaining 11 standard regions.

What constitutional implications does a No in 2014 have? As we explain in our book, the Scotland Act 2012 will immediately come into force, under which, for the first time, the Scottish Parliament will become fiscally responsible. It will have to balance the delights of public spending against the pains of raising tax to pay for it. There will be no repetition of the disgraceful 2011 election campaign, in which every Scottish party said it would tax less and spend more than its rivals.

The Scotland Act is in itself a constitutional innovation. It was passed with the approval of both parliaments. Although it falls far short of independence, it was approved by both the 2007 Scottish Parliament with its minority SNP administration, and by the current Parliament with its SNP majority. That the UK government went to such lengths as it did (tabulated in our book, Table 3.2) to secure the consent of two successive Scottish Parliaments suggests that Aileen McHarg is right to characterise the Cooper-MacCormick narrative of the Scottish constitution as having ‘considerable political resonance’. A UK Parliament advised by the shade of A. V. Dicey would simply have enacted it unilaterally, quoting the parliamentary sovereignty statement in the Scotland Act 1998 s.28(7): This section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.

If the answer in 2014 is No, the Treaty and Acts of 1707 will not be repealed. It would be good if people studied them closely. They help to explain why Scotland is still different, 300 years on. To take another example from today’s political agenda, marriage law is devolved. The Scottish and English laws relating to marriage both start from pre-Reformation Catholic canon law. But they had already evolved very differently by 1707. That difference is protected by the 1707 treaties. The UK government has a bill in parliament to permit same-sex civil marriage in England & Wales. The Scottish Government has a draft bill for Scotland out to consultation. To some people, these bills are a sign of liberation; to others, a sign of oppression. To me as a MacCormickite, the most interesting thing about them is how different they are.

Yes or No, we live in interesting constitutional times, to which the true history of what happened between 1689 and 1707 remains vital.

Iain McLean is Official Fellow and Professor of Politics at Nuffield College, Oxford

[i]               Explored in I. McLean and A. McMillan, State of the Union: unionism and the alternatives in the United Kingdom since 1707 (Oxford: OUP 2005) and in I. McLean, What’s wrong with the British Constitution (2nd ed. Oxford: OUP 2012).

[ii]               McLean, What’s Wrong with the British Constitution?  3-14, 136-40; N. MacCormick, ‘The English Constitution, the British State, and the Scottish Anomaly’, Proceedings of the British Academy 101 (1998): 289-306.

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