IN A little over two months, King Charles will be crowned. The question about what his Coronation Oath should contain has been discussed widely. It will clearly have to incorporate changes from his mother’s pre-woke Oath of 1953, since that included promises such as maintaining Protestantism and governing Ceylon and the ‘Union of South Africa’ by their own laws. The deletions are easy to suggest. What about the additions?
As a Scot, I suggest that one point critical to the future of the Union should be made, namely that the King promises to uphold ‘the sovereignty of the whole people’. This has already been suggested in TCW. I would like to amplify the point by stressing the pivotal importance in Scottish politics of the principle of ‘sovereignty of the people’.
Scottish nationalists have all, from the lowest banner-waver to the highest academic – for example the late Sir Neil MacCormick, Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh – long maintained as an axiom of Scottish exceptionalism that there is a distinction in British constitutional law between Scots law on the subject of sovereignty and English law. The point made is that in England, parliament is sovereign and in Scotland ‘the people’ are sovereign. That is why we are a superior race and why the union with the inferior one, the willing slaves of the Old Etonian Partygaters and Wykehamist bankers in Westminster, must be dissolved if Scots are to achieve political justice and liberation.
The point about this argument is that both are right, but in different ways. Since the achievement of full democracy in 1928 (Equal Franchise Act), the ultimate sovereign in Britain has been the electorate. Therefore it is correct to say that the Scottish people are sovereign, though they share that sovereignty with the rest of the UK. (I omit bodies which slightly impinge on that, such as the House of Lords, Nato and the United Nations.)
Nationalists go beyond legitimate argument when they say that Scottish people have always been sovereign, even before the Union. This Putin-level conceit is historical nonsense since before the Union of the Crowns in 1603, Scotland had an extremely authoritarian government. Partly, this was because the Crown was so weak in the face of a viciously selfish aristocracy. With the exception of the period under Robert the Bruce, the monarch did not have a reliable grip on either the Highlands (about half the country) or the Borders (about a quarter of it). In the remaining 25 per cent which makes up the Lowlands, the King’s writ ran only intermittently.
In the Highlands and the Borders, the Crown franchised out both administration and justice to lairds and local aristocrats by means of what was known as Heritable Jurisdictions. The courts were owned by the local lord: fines were paid to him and he executed sentences which either he or a nominee of his, often a relative, had pronounced. That was much the way England operated under the system of manorial courts before Henry II laid the foundations for the common law for the whole country in the 1160s.
In Scotland Heritable Jurisdictions were not abolished until 1747, after the defeat of Bonnie Prince Charlie at Culloden. Not only did the country not have ‘popular sovereignty’, it did not even have ‘popular law’. The ordinary clansman could not go to court against his Chief without that chief being in control of the court in which he was challenged. England was infinitely more ‘democratic’ than that, even in the early eighteenth century at the time of the Black Act which E P Thompson has written about so persuasively.
Scottish chauvinists such as Neil MacCormick claimed that the principle of parliamentary sovereignty in England meant that the Houses of Commons and Lords ran the country without any institutional or legal restraint after the demise of the executive power of the Crown in the mid-nineteenth century. That was true, as far as it went, since it was only with the advent of democracy in the British Isles that the power to select the members of the Executive passed from the Crown to the people.
Since all developments of the franchise in the UK affected Scotland in exactly the same way as they affected England and Wales, the transfer of sovereignty from the Crown to parliament after 1688 and from the parliament to the people after 1832 made both countries into components of a state in which the ultimate sovereign was the electorate.
The Executive was once an aspect of the Crown, but now it is controlled by a bureaucracy, directed and managed by ministers of the Crown. They sit in the House of Commons and can be deprived of their power only by the House of Commons. It, in short, hires and fires the government and is therefore the instrument of popular sovereignty which, in turn, lies with the electorate. Scotland is no different from England in this respect.
It would be very healthy for our body politic if the new King were to make some sort of declaration which had this thought at its back when he swears his Oath of ‘office’ on May 6. Scots would then have to drop the lazy-minded chauvinism about sovereignty which has motivated xenophobic nationalists ever since Sir Neil’s father, John MacCormick, set up the SNP in 1933.
For those who wish for more ‘chapter and verse’ on this, I have written a 30-page Appendix to my biography of Nicola Sturgeon, who repeated MacCormick’s boast endlessly, in which I explain this point in more detail. I also sketch the history of political authoritarianism in Scotland, which proponents of ‘popular sovereignty’ have usually implied was a peculiarly English vice.
