Alex Salmond, the current First Minister of Scotland, and his Scottish National Party won a parliamentary majority earlier this year – a significant first for the new Scottish Parliament and its mixed member proportional electoral system. The Scottish National Party seeks the independence of Scotland and therefore the dissolution of the United Kingdom of Great Britain that the Act of Union established in 1707; First Minister Alex Salmond has since pledged to hold a referendum on Scotland’s independence in the second half of the current 4th Scottish Parliament, probably in 2014. The Scottish National Party’s pledge has caused some consternation in England itself, but thus far Prime Minister Cameron has affirmed that the Scottish Parliament possesses the authority to hold such a referendum and that the Westminster Parliament and his government will not interfere.
This issue of Scotland’s independence provides a veritable treasure trove of new constitutional material to explore with respect to the devolution of certain powers to the restored Scottish Parliament and the newly established Welsh and Northern Irish Assemblies. The United Kingdom of Great Britain and Northern Ireland, officially a unitary state, has embarked on a process of federalisation in which England still relies on the Westminster Parliament while the other three nations (Scotland, Wales, and Northern Ireland) benefit from their own devolved legislatures. As the renowned English constitutional scholar Vernon Bogdanor remarked, “the unwritten constitution is changing before our eyes.”
The politico-constitutional consternation in the United Kingdom carries implications that may pertain to Canada and the question of Quebec’s secession from our federal union. I will briefly summarize the history of The Crown of Scotland and the creation of the United Kingdom as well as the nature of the new Scottish Parliament.
From the Personal Union of the Crowns (1603-1707) to The Act of Union, 1707 and the Scotland Act, 1998
Elizabeth I died without royal issue in 1603, and thus the glorious House of Tudor died with her. The threat of invasion from the French or Spanish and a protracted war of English succession compelled Elizabeth I’s courtiers to arrange that King James VI of Scotland also assume the Crown of England upon Elizabeth’s demise. James shared a distant blood relation to the House of Tudor (his great-grandfather James IV married Henry VIII’s sister Margaret), and he was a Protestant. James VI of Scotland also became James I of England and became the first monarch to hold the personal unions of the crowns of Scotland and England, which lasted from James’s accession to the throne of England in 1603 to the Act of Union, 1707. This personal union of the two crowns meant that England and Scotland maintained their status as separate kingdoms with separate parliaments and separate state churches, but shared one monarch. The 16 Commonwealth realms today constitute a personal union. James I sought unsuccessfully to convert this personal union into a full political union.
English historian David Starkey explains the negotiations that led to the creation of the United Kingdom in the Act of Union, 1707. In 1701, the Westminster Parliament passed the Act of Settlement in order to ensure the Protestant Hanoverian succession to the crown of English after Anne’s demise – but the English never consulted the Scots. In response, the Scottish Parliament passed the Act of Security in 1703, which stipulated that the crown of Scotland would also passed onto a Protestant, but not the same Protestant who would wear the crown of England. The Westminster Parliament passed the Aliens Act and banned the major Scottish export trade to England in order to constrain Scotland’s finances and force the Scots to negotiate. Queen Anne succeeded where James failed. The Act of Union, 1707 secured the personal union of the crowns of England and Scotland and prevented their bifurcation and created the political union of the United Kingdom of Great Britain. In order to achieve full political union, both the Westminster Parliament and the Scottish Parliament had to agree on the Act of Union. But the Scottish Parliament also had to vote not merely for its dissolution, but for its total demise; under the United Kingdom, the Westminster Parliament would govern for all of Great Britain. The Scots received full access to all the prosperous English colonies – which thereafter became part of the British Empire. While the Scots relinquished their parliament and sovereignty, they never surrendered their distinct national identity.
The Scottish Parliament
This stubborn Scottish nationalism culminated in the reestablishment of the Scottish Parliament in the form of a devolved assembly, as the Blair government set out in the Scotland Act, 1998. The new Scottish Parliament deviates dramatically from the traditional Westminster model, as this pamphlet and the Scotland Act show. It consists of 129 “Ministers of the Scottish Parliament”, or MSPs, and it operates on a mixed-member proportional system. 73 of the MSPs represent the single-member constituencies; the remaining 56 “Regional MSPs” are elected on the basis of party affiliation in 8 Scottish Parliament Regions, each of which contains 7 seats. “In each region, parties are allocated seats depending on the number of votes they receive in this regional ballot, and taking into account the number of constituency seats they win in the region”, which ensures the overall proportional result. The New Zealand House of Representatives operates on this system as well.
Initially, the Scottish Parliament had also deviated from the Westminster model by pioneering true fixed elections every four years; ironically, the Westminster Parliament has itself now adopted this radical method with the passage of the Fixed-Term Parliaments Act earlier this year. The Scottish Parliament pioneered the elimination of crown prerogative on dissolution: the Scottish Parliament dissolves and summons itself automatically every four years so that the elections occur on the first Thursday in May, and the new parliament convenes 7 days later (section 2 of the Scotland Act). The most recent occurred in May 2011. The words “prorogue” and “prorogation” appear nowhere in the Scotland Act, so I can only presume that the Scottish Parliament not only eliminated the crown prorogation on the summoning and dissolving of Parliament but took the even more radical step of eliminating the entire concept of prorogation altogether!
However, the Queen still formally opens the Scottish Parliament, though as this footage from July 1st, 2011 of the convening of the 4th Scottish Parliament shows, this ceremony does not appear to share the same significance or constitutional status as the Queen’s Speech. While the Crown of Scotland sits before Her Majesty, she neither wears it, nor the full state regalia that she dons for the State Opening of the Westminster Parliament. And here’s another question: how can the Queen even enter this unicameral parliament? This confidence chamber is the equivalent of the Houses of Commons and Houses of Representatives elsewhere in the Commonwealth realms, and the Queen and her representatives never set foot in them. The last monarch who stepped foot in the House of Commons, Charles I, thus precipitated the English Civil War and ultimately lost his own head.
Sections 44 through 47 set up the new Scottish Executive, which consists of the “First Minister” (I guess that the traditional “Prime Minister” would have created too much confusion and power struggle with London), Ministers, and the Lord Advocate and Solicitor General for Scotland. Section 45 says that “(1) The First Minister shall be appointed by Her Majesty from among the members of the Parliament and shall hold office at Her Majesty’s pleasure.” That procedure conforms to the Westminster standard, though the act of codifying this function is in and of itself radical. But Section 46 states that the Parliament itself will nominate a candidate for First Minister within 28 days of its convening. Then the Queen would be obliged to appoint that candidate as First Minister. Section 47 establishes how ministers are appointed:
(1) The First Minister may, with the approval of Her Majesty, appoint Ministers from among the members of the Parliament.
(2) The First Minister shall not seek Her Majesty’s approval for any appointment under this section without the agreement of the Parliament.
The Parliament confirms the First Minister’s choice of ministers for portfolio like the US Senate must confirm the President’s choice of cabinet. Under the normal Westminster model, the Prime Minister nominates and Her Majesty-in-Council or the Governor-in-Council formally appoints a minister – but the Queen or Governor General does not possess a reserve power to refuse such appointment. This Scottish system revolutionizes and fundamentally alters this process: the First Minister formally “appoints”, the Parliament “agrees” (or confirms the appointment), and the Queen “approves”!
Overall, the Scottish Parliament is a bizarre hybrid of the congressional and Westminster parliamentary models: the Scotland Act codifies (and therefore limits) crown prerogative, and not only codifies a basic outline of the confidence convention but also vests the power to approve appointments in the parliament.
The Scotland Act indicates that the Scottish Parliament exercises its authority over the following policy fields:
- agriculture, forestry and fisheries
- education and training
- health and social services
- law and order
- local government
- sport and the arts
- tourism and economic development
The Westminster Parliament retains the following “reserved” policy fields:
- benefits and social security
- foreign policy
- trade and industry
- nuclear energy, oil, coal, gas and electricity
- consumer rights
- data protection
- the Constitution.
The SNP’s Proposal: Restoration of the Personal Union
Finally, after having explained the history of the Crown of Scotland and the powers and functions of the Scottish Parliament, I come to the Scottish National Party’s proposal for Scottish independence. So if “the Constitution” falls under one of the policy fields reserved to the Westminster Parliament, then how can the Scottish government undertake a referendum on Scottish independence? Like the Parizeau government of Quebec in 1995, the Salmond government has portrayed the referendum on an independent Scotland as a mandate to negotiate.
The Salmond government published its conception of an independent Scotland in Scotland’s Future: A Draft Referendum Bill Consultation Paper. From what I’ve read so far, Alex Salmond seems like a genuine monarchist, and for practical political reasons, the Scottish National Party will put forward a conception of an independent Scotland that it believes can win the support of a majority of the Scottish people. In addition, the Royal Family summer in Balmoral in Scotland – and Queen Elizabeth II herself, not the Crown Estate, owns Balmoral.
This point summarizes what an independent Scotland would look like:
1.19. Her Majesty The Queen would remain as Head of State. The current parliamentary and political Union of Great Britain and Northern Ireland would become a monarchical and social Union – united kingdoms rather than a United Kingdom – maintaining a relationship forged in 1603 by the Union of the Crowns.
In all reality, the dissolution of the United Kingdom would not “maintain” a relationship forged in 1603: it would restore this personal union of the crowns. I’ll watch Scottish politics with great interest in the years to come and observe how this referendum campaign unfolds.