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| Aidan O'Neill QC |
Constitutional Heritages Contrasted
by Aidan O'Neill QC
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13 January 2020
FORWARD AS ONE
RE THE CONSTITUTIONALITY OF A FURTHER SCOTTISH INDEPENDENCE REFERENDUM LEGISLATED FOR BY THE SCOTTISH PARLIAMENT
ADVICE OF SENIOR COUNSEL
AIDAN O’NEILL QC
Advocates Library Parliament House Edinburgh EH1 1RF
Above document available from:
DROPBOX
(PDF 46 pages)
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PREVIOUS CONSTITUTIONAL MATERIAL
FROM AIDAN O'NEILL (2016) -
(The following is an extract from the submission written by Aidan O'Neill QC on behalf of the Independent Workers Union of Great Britain [IWGB] to the UK Supreme Court Article 50 'Brexit' Appeal [2016])
RE THE CONSTITUTIONALITY OF A FURTHER SCOTTISH INDEPENDENCE REFERENDUM LEGISLATED FOR BY THE SCOTTISH PARLIAMENT
ADVICE OF SENIOR COUNSEL
AIDAN O’NEILL QC
Advocates Library Parliament House Edinburgh EH1 1RF
Above document available from:
DROPBOX
(PDF 46 pages)
___________________________________
PREVIOUS CONSTITUTIONAL MATERIAL
FROM AIDAN O'NEILL (2016) -
(The following is an extract from the submission written by Aidan O'Neill QC on behalf of the Independent Workers Union of Great Britain [IWGB] to the UK Supreme Court Article 50 'Brexit' Appeal [2016])
2. SCOTTISH CONSTITUTIONAL LAW AND THE UK CONSTITUTIONAL COURT
2.1 Article 50(1) of the Treaty on the EU (TEU) [1/8] provides that “any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.” The proper interpretation of Article 50 TEU is a matter for the CJEU, but it is for this court to determine what the UK constitution requires for the Article 50 TEU procedure properly to be invoked.
2.2 Answering that question shines a spotlight on just what the UK constitution is. But UK constitutional law has been the law that dare not speak its name. This is because the 1707 Parliamentary union between England and Scotland undoubtedly created a new State, but it did not create one Nation. Various schemes for a wholly incorporating ‘perfect’ Union of Scotland and England had, unsuccessfully, been proposed to the English Parliament by James VI, King of Scots, after he had acceded to the English throne in 1603. The 1707 Union differed from these earlier schemes in that, while ensuring the depoliticisation of Scotland, it put into place measures intended to protect - and indeed to strengthen - other aspects of Scotland’s distinctive continuing nationhood. Conrad Russell put it thus [505] (internal footnote added):
“That the Scots found a perfect union politically unacceptable, and the English an imperfect union intellectually incomprehensible, provides the basis for the odd mixture of the two which was set up in 1707. The English got the unitary sovereign power which they wanted, and got it in the form based upon the existing English Parliament, with an English majority in it. The Scots got their recognition as a separate sovereign state, both from the form of the Union of 1707 as an international treaty, and from the survival of Scots law and the Scottish church. It is that claim that Scotland is a sovereign nation state which is reasserted whenever the English forget that 1707 was not a ‘perfect union’ and has recently been repeated in the Claim of Right. Scotland in accepting the Union in 1707 remained a nation and as a result any sovereignty in the British parliament could not be national sovereignty. This has always been hard for the English to understand.”
2.3 In the 300 years of that 1707 Union, there is no doubt that the English constitutional tradition has been the dominant and, at times, overwhelming influence; but a distinct Scottish constitutional tradition has never entirely been lost and may, indeed, be said to have been revived by the devolutionary settlement for Scotland. Dicey and Bagehot, Coke and Blackstone may well be reliable guides to the English constitutional tradition, but their views are not necessarily determinative or reflective of what the UK constitution now is. Like the English common law, the Scots constitutional tradition is not an ossuary.
One thing is clear, however. When the UK Supreme Court has to speak of UK Constitutional law it enters into perilous waters because the two constitutional narratives and traditions to which the UK is heir - the English historical myth emphasizing the sovereignty of the governing institutions of the State (the Crown, and the Crown in Parliament) and an unbroken continuity since Magna Carta in 1215 CE; and the Scottish tradition, since at least the Declaration of Arbroath of 1320 CE [19/210], of the sovereignty of the people limiting the powers and rights of the Crown (and Parliaments) – may pull in different directions, but yet have to be reconciled if this union polity is to survive.
2.4 Notwithstanding that this matter comes here on appeal from the Divisional Court of England and Wales, this Court is not here faced with matters of purely English law. This Court is determining matters concerning the content and extent of the constitutional obligations imposed on all institutions of the now democratically based British (and Northern Irish) State, its Parliaments as much as its courts and Governments, to show respect for those fundamental constitutional norms inherent in a democratic polity. Accordingly, the role of this Court is to be conscious of and take due account of these various narratives and sources for our multiply texted constitution, as was essayed in R (Buckinghamshire County Council) v Secretary of State for Transport [2014] UKSC 3 (HS2) [7/56] per Lord Neuberger and Lord Mance at §207 (emphasis added):
“The United Kingdom has no written constitution, but we have a number of constitutional instruments. They include Magna Carta, the Petition of Right 1628, the Bill of Rights and (in Scotland) the Claim of Right Act 1689, the Act of Settlement 1701 and the Act of Union 1707. The European Communities Act 1972, the Human Rights Act 1998 and the Constitutional Reform Act 2005 may now be added to this list. The common law itself also recognises certain principles as fundamental to the rule of law.”
2.5 The Divisional Court below, guided no doubt by the limited submissions made to it by the parties and interveners, referred only to the (English) Bill of Rights of 1688 [12/106]. Article 9 of the English Bill of Rights - which enjoins “that the Freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament” - is cited and relied upon by the courts in Scotland as well as England, so it undoubtedly forms part of the UK constitution. But the (Scottish) Claim of Right of 1689 is equally a constitutional instrument for and within the UK. It is, after all, on the basis of the Claim of Right’s assertion “that it is the right and privilege of the subjects to protest for remeed of law to the King and Parliament against Sentences pronounced by the lords of Session” that this Court exercises its jurisdiction to hear appeals from the Court of Session.
2.6 Accordingly, the actions of the UK Government today can properly be measured and declared to be unlawful to the extent of its incompatibility with this Scottish constitutional tradition, on the basis that the Union preserves both constitutional traditions, and that the rule of law favours that tradition which offers the stronger protection for individual rights.
3. THE SCOTTISH CONSTITUTIONAL TRADITION: THE CROWN LIMITED BY POPULAR SOVEREIGNTY
Tracing the history of Scottish constitutional law: sovereignty resides in the people
3.1 The Scottish constitutional theory of the power of the Crown being received from the people and limited by the law was first systematically set out by George Buchanan (1506 CE - 1582 CE), the celebrated European humanist scholar and poet, citizen of the Republic of Letters, historian of Scotland, tutor to the young James VI and constitutionalist who, in his dialogue De iure regni apud Scotos (1567) noted, among other things, that in Scotland
“the people who have granted the king authority over themselves dictate to him the extent of his authority, and require him to exercise as a king only such right as the people have granted him over them”; and
“the power received by our kings from our ancestors was not unbounded but was limited and restricted within fixed boundaries”; and
“if the greater part of the people can pass a law and elect a magistrate, what is to prevent them judging the magistrate themselves or appointing judges to try him... Why should it seem unjust to any man if a free people have provided themselves in a similar or even in a different way with the means of restraining the harshness of tyranny.”
3.2 According to George Buchanan, therefore, the law and customs and immemorial constitutional tradition of the Scots in relation to the Crown is one of a limited constitutional monarchy involving:
(i) subordination of the Crown to the law;
(ii) the Crown’s answerability before the courts; and
(iii) in the last resort, the people’s right of revolt against a monarch in fundamental breach of his or her duties.
3.3 In the 1644 CE work of the Scottish Presbyterian Divine Samuel Rutherford (c.1600 CE–1661 CE) Lex Rex [27/344], Rutherford answers his Question XLIII on “whether the King of Scotland be an absolute prince, having prerogatives above Parliament and laws: the negative is asserted by the laws of Scotland, the King’s oath of coronation, the Confession of Faith etc.” as follows:
“The kings of Scotland have not any prerogative distinct from supremacy above the laws. If the people must be governed by no laws but by the king's own laws, that is, the laws and statutes of the realm, acted in parliament under pain of disobedience, then must the king govern by no other laws, and so by no prerogative above law… [I]n treaties with foreign princes, the estates of parliament did append their several seals with the king's great seal, (which to Grotius, Barclaius, and Arnisæus, is an undeniable argument of a limited prince, as well as the style of our parliament, that the estates, with the king, ordain, ratify, rescind, &c.) as also they were obliged, in case of the king's breaking these treaties, to resist him therein, even by arms, and that without any breach of their allegiance, as is yet extant in the records of our old treaties with England and France, &c.”
3.4 This position is confirmed in the 1703 Act of the Scottish Parliament anent Peace and War:
“Our sovereign lady, with advice and consent of the estates of parliament, statutes, enacts and declares that after her majesty's decease, and failing heirs of her body, no person being king or queen of Scotland and England shall have the sole power of making war with any prince, potentate or state whatsoever without consent of parliament, and that no declaration of war without consent foresaid shall be binding on the subjects of this kingdom, declaring always that this shall no way be understood to impede the sovereign of this kingdom to call furth, command and employ the subjects thereof to suppress any insurrection within the kingdom or reject any invasion from abroad according to former laws; and also declaring that everything which relates to treaties of peace, alliance and commerce is left to the wisdom of the sovereign, with consent of the estates of parliament who shall declare the war. And her majesty, with consent foresaid, rejects, casses and annuls all former acts of parliament in so far as they are inconsistent herewith or contrary hereunto.” (emphasis added)
3.5 In “The Crown Rights of the Redeemer: the Chalmers Lectures of 2007”, the Reverend Dr. Marjory MacLean summarises this Scottish constitutional tradition of popular sovereignty as follows:
“Turning from the question of what defines sovereignty to the question of what its source is, we find that the characteristically Scottish Reformed approach developed through the thinking of John Knox, George Buchanan, Samuel Rutherford and the framers of the National Covenant of 1638. There are several elements in this Scottish tradition.
First, at its root is a belief in popular sovereignty, by which is normally understood the self-determination of the whole people in the context of their relationship (individual and corporate) with God. In the immediate post-Reformation literature it is difficult to find a clear description of how an articulate and identifiable process of self-determination works, though the process of bonding or banding brought together people of like minds into groups strong enough to effect political and constitutional change.
The second element in the Scottish model is ‘fiduciary dominion’, the ruler’s power (dominium) to govern given by the people, who offer their trust (fides) but not their sovereignty, which according to the theory remains with them. The ruling power is therefore supreme but constitutionally bound, and cannot arbitrarily change the bounds of its authority or the constraints under which it is obliged to operate.
The third element of the Scottish model is the presence of such constraints on the sovereign people and the holder of fiduciary dominion alike: these have normally been Natural Law and Divine Law, as understood from time to time, and the rule of law.”
3.6 This tradition of popular sovereignty within the Scottish constitution reached its apotheosis with the decision by the self-convened Scottish Parliament in 1689 to declare James VII to have forfeited the Crown on the basis of its claims that he had over-reached the lawful limits placed on his executive power. The use of the word ‘forfeited’ was of particular significance because it was consistent with the terms of the 1320 CE Declaration of Arbroath [19/210] as well as with the constitutional writings of George Buchanan and Samuel Rutherford.
3.7 The Bill of Rights 1688 [12/106] declares that “the pretended Power of Suspending of Laws or the Execution of Laws by Regal Authority without Consent of Parliament is illegal”. This is echoed in the Claim of Right’s declaration [19/211] that “That all Proclamations asserting an absolute power to Cass [anglice Quash] annul and Disable laws… are contrary to Law”. But the Scottish constitutional tradition of popular sovereignty which the Claim of Right 1689 was articulating may be contrasted with the (English) Bill of Rights tradition where, as Conrad Russell notes, the prevailing “theory of legitimacy” was one “where authority, however much it might feel the need for consent, was ultimately descending”. Accordingly, rather than speaking of the king being deposed in the Glorious Revolution, the English Bill of Rights employed the legal fiction that the king, in fleeing to France, had chosen to “abdicate” his throne, thereby preserving the fiction that the existing constitutional order in England continued. The English Declaration and Bill of Rights 1688 are also to be contrasted with the Scottish Claim of Right 1689 in that the English document makes no reference to James II’s oath on entering government that he will “rule the people according to the laudable laws”. Nor does the English document claim that James II had expressly breached any of the terms of his (English Coronation) oath. And the English document similarly makes no reference - unlike the Scottish text - to James II and VII invading the “fundamental Constitution of the Kingdom” and of that constitution properly being understood as a “legally limited monarchy”. Nor do the English, in terms, accuse the James II of attempting to subvert the constitution that he was in office to uphold, complaining instead only of specific acts of “arbitrary power” (namely “prosecutions in the Court of King’s Bench for Matters and Causes cognizable only in Parliament and by diverse other Arbitrary and Illegal Courses”), rather than the root and branch corruption of power which the Scottish Claim of Right of 1689 had identified.
3.8 In this early modern period, models of constitutional government are expressed in the terms of political theology. The religious is political precisely because in defining the terms of the Church settlement in a territory you define the source and extent of power of the State.19 So in Scotland at least, the term “Papist” translates into a believer in absolutist government; “Episcopalian” into a supporter of constitutionally limited Monarchy; while “Presbyterians” hold to a democratic model in which the Elect(ors) delegate defined and limited powers to those whom they appoint to hold office.
3.9 The whole point about the 1707 Union is that it constitutionally entrenched the distinct Scottish and English constitutional traditions as embodied in the two nations’ separate ecclesiastical settlements. Thus, the “securing of the Protestant Religion and Presbyterian Church Government within the Kingdom of Scotland” was expressly declared to be “a fundamental and essential Condition of the said Treaty or Union in all times coming.” And it was similarly declared by the English Parliament that the preservation of the Anglican settlement in England also be made “a Fundamental and Essential part of any Treaty of Union” with Scotland. And this is not simple antiquarianism or misplaced originalism. The accession oath which was sworn by Elizabeth II before the Accession Privy Council on the day immediately after her accession, and which is renewed by her each year (whether in writing or in person) before the General Assembly of the Church of Scotland is in the following terms:
“I, Elizabeth the Second by the Grace of God of Great Britain, Ireland and the British dominions beyond the seas, Queen, Defender of the Faith, do faithfully promise and swear that I shall inviolably maintain and preserve the Settlement of the True Protestant Religion as established by the laws of Scotland in prosecution of the Claim of Right and particularly an Act entitled an Act for the Securing the Protestant Religion and Presbyterian Church Government and by the Acts passed in both Kingdoms for the Union of the two Kingdoms, together with the Government, Worship, Discipline, Rights and Privileges of the Church of Scotland. So help me God.” (emphasis added)3.10 What this means is that this distinctive Scottish constitutional tradition embodied in the Claim of Right - of the Crown holding power from and in trust for the people assembled “in a full and free representative of this Nation”, with the Crown bound by the constitution to honour the terms and limits of the sovereign people’s grant of that power, and with both the people and the Crown subject to a duty to respect fundamental rights and the rule of law - not only survived the 1707 Union, but was expressly preserved by it and is reaffirmed by the Crown in personam every year of her reign.
3.11 This Scottish constitutional tradition of popular sovereignty has most recently been restated and confirmed by the UK Parliament in the terms in Section 1 of the Scotland Act 2016 which inserts a new Section 63A to the Scotland Act 1998 (SA) [12/124] in the following terms:
“63A Permanence of the Scottish Parliament and Scottish Government
(1) The Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom's constitutional arrangements.
(2) The purpose of this section is, with due regard to the other provisions of this Act, to signify the commitment of the Parliament and Government of the United Kingdom to the Scottish Parliament and the Scottish Government.
(3) In view of that commitment it is declared that the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum.” (emphasis added).3.12 The reference in Section 63A(3) SA to the maintenance/abolition of the Scottish devolved institutions of Government, being a matter for “a decision of the people of Scotland” - rather than simply saying “on the basis of a referendum held in Scotland” - only makes sense (since there is otherwise no specification in the Scotland Act as to who constitutes “the people of Scotland”) as a clear and unequivocal reference to, and affirmation by the Westminster Parliament of, this Scottish constitutional tradition of popular sovereignty.
No harmonisation of Scottish constitutional law on the Crown and prerogative post-Union
3.13 Although Article XVIII of the 1707 Union allowed that “Laws which concern public Right Policy and Civil Government may be made the same throughout the whole United Kingdom… by the Parliament of Great Britain”, the Union did not, in fact, result in the harmonisation - and still less in the assimilation - of public law in Scotland with that of England. In 1758 Lord Mansfield ruled in King v Cowle 97 ER 587 [483]:
“1st. That this Court has no jurisdiction over the town and borough of Berwick, or any local matters arising there; because it is not to be deemed part of the realm of England, and the King's writ does not run there: consequently, this Court has no authority to remove a record from thence, by writ of certiorari, for any purpose…
Writs, not ministerially directed, (sometimes called prerogative writs, because they are supposed to issue on the part of the King,) such as writs of mandamus, prohibition, habeas corpus, certiorari, are restrained by no [856] clause in the constitution given to Berwick: upon a proper case, they may issue to every dominion of the Crown of England. There is no doubt as to the power of this Court; where the place is under the subjection of the Crown of England; the only question is, as to the propriety.
To foreign dominions, which belong to a prince who succeeds to the throne of England, this Court has no power to send any writ of any kind. We cannot send a habeas corpus to Scotland, or to the electorate [of Hanover]: but to Ireland, the Isle of Man, the plantations, and, as since the loss of the Duchy of Normandy, they have been considered as annexed to the Crown, in some respects, to Guernsey and Jersey, we may; and formerly, it lay to Calais; which was a conquest, and yielded to the Crown of England by the treaty of Bretigny”. (emphasis added).3.14 As one commentator has noted in this regard [502]:
“The reason, therefore, why Scotland is exempt from this jurisdiction [of habeas corpus] is, that it extends only over the dominions which prior to the Union were dominions of the crown of England, and Scotland was never part of the dominions of the crown of England. The King of Scotland came also to be King of England, but this did not make Scotland subject to the crown of England.” (emphasis added) ETC. ETC.
PDF of entire document HERE
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You may also find of interest -
John Duns Scotus
and the Idea of Independence
by Professor Alexander Broadie FRSE
John Duns Scotus (1266-1308) Declaration of Arbroath (1320) PDF
"My conclusion is that while Wallace was fighting for Scottish independence, Scotus was developing precisely the intellectual framework that the Scots within a few years would deploy in the chief documents that defined that independence. I also believe it possible that the documents in question were compiled with Scotus in mind. There remains an intriguing thought, which I have not pursued, that Scotus was actively engaged in the development of Scottish thinking on the matter of Scottish independence through discussions that he might have had with Scots whom he met at the great centres where he worked. If such discussions did indeed take place, then my suggestion, made some years ago, that the relation of Scotus to the Wars of Independence was one of theory to practice, is false. Scotus may, after all, have been on the side of practice as well as theory by working to the same end as the Scottish military leaders even although by utterly different means."
Read full article HERE
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The following audio lecture covers related subject-matter
Professor Alexander Broadie FRSE
The Royal Society of Edinburgh
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