By David Torrance 
The “sovereignty of the Scottish people”, as Gerry Hassan has pointed out, is one of the enduring myths of Scottish politics.
Its modern usage derives from the 1988 Claim of Right, a political exercise with no legal basis.
Besides, the SNP did not even sign up to that Claim or take part in the Scottish Constitutional Convention that followed, for the perfectly legitimate reason that the latter did not consider “independence” to fall within its Unionist remit.
By David Torrance
The “sovereignty of the Scottish people”, as Gerry Hassan has pointed out, is one of the enduring myths of Scottish politics.
Its modern usage derives from the 1988 Claim of Right, a political exercise with no legal basis.
Besides, the SNP did not even sign up to that Claim or take part in the Scottish Constitutional Convention that followed, for the perfectly legitimate reason that the latter did not consider “independence” to fall within its Unionist remit.
Every UK prime minister since Margaret Thatcher has accepted that if a majority of Scots back independence at the ballot box then nothing should stand in the way, not even Westminster. That majority hasn’t happened yet although autumn 2014, of course, might change all that. Now that the UK Government supports the referendum process, it can rightly claim to back both “self-determination” for Scotland and the Falkland Islands.
But self-determination or sovereignty are not predicated upon an independence referendum, as some Nationalists appear to suggest; both are expressed every time Scots go to the polls, be it in Holyrood or Westminster elections. So simply repeating that the Scottish people rather than Westminster are “sovereign” takes us nowhere particularly useful, it is electoral politics rather than symbolism that counts.
Yet sovereignty, even as pure symbolism, is important, and I don’t mind admitting that I was slow to grasp its pertinence to the current debate, even if I continue to think it’s often overstated. Look at certain exchanges on twitter or on Newsnet, however, and its symbolic importance is clear: for many supporters of independence, sovereignty – that is the ability of Scots to take the final decision rather than Westminster – is of paramount importance.
I think the time has probably come for Westminster to acknowledge that sovereignty, and not just by supporting the 2014 referendum.
The predominantly Unionist belief that the UK Parliament is “absolutely sovereign” is also a bit of a myth. This now rather dated Diceyan notion began to fall apart in 1922 when most of Ireland seceded and Northern Ireland was granted Home Rule. It was eroded further in 1999 with the creation of a National Assembly for Wales and a Scottish Parliament. Could Westminster dissolve either as it did Stormont in the early 1970s? In theory perhaps, but hardly in practice.
Indeed, it was often Conservatives who undermined the Parliamentary sovereignty they purported to uphold. The Canadian Scot Andrew Bonar Law, for example, famously jettisoned his belief in that concept virtually overnight, when he stated that in “our opposition [to Irish Home Rule] we shall not be guided by the considerations or bound by the restraints which would influence us in an ordinary constitutional struggle…I repeat here that there are things stronger than parliamentary majorities”.
If a majority of Scots decide to vote “yes” in two years’ time then the issue of sovereignty will largely be settled. In political and economic terms, however, an independent Scotland would quickly discover that, in practical terms, sovereignty is subject to several constraints.
As John Kay, one of the SNP’s own (now former) economic advisers put it: “In the modern world, economic sovereignty for small nations is inescapably limited, and political sovereignty is largely symbolic.” In various recent policy shifts – i.e. monarchy, currency and soon, perhaps, NATO membership – the SNP leadership has tacitly conceded this point.
But even if independence is rejected at the referendum, I believe Westminster should move quickly to reconstitute the United Kingdom (which refers, let us remember, to the kingdoms of Great Britain and Ireland rather than Scotland and England) along federal lines. As the Welsh Tory Assembly Member David Melding has proposed: “A simple declaration is needed – perhaps codified in the first clause of a new Act of Union – that Britain is a federation with each of its parliaments indissoluble and sovereign over their apportioned jurisdiction.” (My italics.)
As I’ve argued elsewhere (and in my born-again federalism my enthusiasm exceeds that of most Liberal Democrats), a properly federal UK would more adequately reflect the aspirations of the majority of Scots – who want neither independence nor the status quo – and indeed the other parts of the country, where the direction of travel in Wales, Northern Ireland and England’s major cities is towards greater autonomy. A practical degree of fiscal autonomy is implicit in any such scheme.
“Should the Union be reformed on more coherent federal lines, then Westminster’s sovereignty would be formally divided with Britain’s other parliaments (and those that might one day emerge),” explains Melding. “To divide sovereignty in such a manner is the first principle of federalism; this does not dilute sovereignty but separates it into different spheres.” And as Melding set out in his book, Will Britain Survive Beyond 2020? (Cardiff, 2009), each “Home Nation” should have the formal right to secede from that federation.
Federalism has the added advantage of enjoying cross-party support. The former Labour First Minister Henry McLeish has long advocated a federal solution, as do most old-school Liberal Democrats (the Orange Bookers seem less interested), and most thinking Tories.
Even Sir John Major, once a fairly staunch Unionist, recently asked: “Why not devolve all responsibilities except foreign policy, defence and management of the economy?” Indeed, when the SNP was founded in 1934 it advocated Imperial Federation, dominion status for Scotland within the British Empire.
The United States constitution names three sovereign entities: the federal government, states and tribes, perhaps one of the only nations to recognise the sovereignty of a people within its constitutional confines.
Although sovereignty has brought Indian tribes mixed fortunes (some have grown rich through establishing casinos), none would voluntarily relinquish that status. Perhaps a particularly creative UK Government could even recognise not just Scotland, but also the Scottish people, as sovereign. It would be largely symbolic, but then political symbolism has a respectable role when it comes to nation building.
David Torrance is a writer, journalist and broadcaster.
He is also author of ‘Salmond – Against The Odds’ a biography of Scotland’s First Minister
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