A few things have been bugging me since I came to Scotland. I knew that I was moving to a different country. I think that difference is as great as between France and Germany. I knew that I had to deal with differences in culture and of education. I will never forget a friend referencing Stirling Bridge, and being shocked when I said most English would not know what the battle was about, nor why it might be important. As for Wallace….
Then we get to law. The English system I know, Scottish law is different and has been subject to other influences. The details need not detain us here, but there are substantial and significant divergentcies.
One of the things that I struggle with is that Scots do not “get” the English and their politics, and vice versa. Yet on consideration they are making different assumptions, and talk at cross-purposes.
Constitutionally there is a different understanding. The big one is ultimate authority in the state. Once one understands that there is a better chance of engaging in meaningful dialogue. It is a matter of sovereinty. Sovereingty means, for a nation, self determination. Within a state it means the ultimate authority. Let us consider the English view first:
The claim in England is quite clear, Parliament is sovereign, it is legally all powerful. It can do anything. Strictly speaking sovereignty lies with the Queen in Parliament; since the consent and agreement of Commons, Lords and Monarch are needed to pass an Act. Any powers given by Parliament to ministers, officials, councils or devolved pwers is subject to recall or amendment by Parliament itself. The argument has been raised that the European Union was and is in the same position as regards Parliament as a county council, and Parliament could always recall powers given. Brexit has made that issue very important. Legitimacy lies with the monarchy and the settlement over Parliamentary powers. Of course if you accept Scotland is merely a region of the UK then the English expectation is that Westminster can remove any powers and resort to direct rule.
This leads onto the main point I want to make, whence comes the authority of government? Where is sovereignty? Given that anciently government centred on kingship we need to consider the nature of kingship. Most of us assume that a concept is represented by a word, so if you use a word it means the same thing in every context. Translators know that is not quite true. A society has its own nuances, e.g. to talk of a priest in Ireland is not to have the same assumptions as in Greece. So it is of monarchy. Louis XIV of France declared “L’Etat c’est moi”. His personal decisions were those of the state. Modern UK monarchy is very restricted by convention and practice. Anciently the kings of England and Scotland had real power, but their legitimacy came from different sources.
In principle in England a monarch was such because of rules of succession, (now as amended by Act of Parliament,). King is not subject to any control, beyond his own conscience. It follows that Charles I was right that Parliament had no authority to try him, and that regicide ws treason. The idea is that a monarch is not subject to any control, beyond his own conscience and the basis of this was a lawful king was something you had. This was augmented by the consecration and investing of a king with authority from God in the coronation service. He was crowned and anointed and a fixture:
““Not all the water in the rough rude sea
Can wash the balm off an anointed king”
as Shakespeare wrote in Richard II.
The only way out of the arrangement was death or conquest, or else the king abdicated. The Bill lof Rghts 1689 “And whereas the said late King James the Second having Abdicated the Government and the Throne…”
The Scots had a different approach, which was the king acted by consent of the people. Even since the Act of Union Scotland still tend to follow her ancient ways. So it is that the Scottish answer to the arrival of William and Mary was not to declare an abdication, rather the Claim of Right, which went through the Scottish Parliament was a list of grieviances, followed by a declaration of William and Mary as Monarchs.
The people, acting through Parliament in Scotland appointed a new monarchy. The idea is deeply rooted in Scottish history that a king is king because of the will of the people. Sovereingty does not flow from the king down, it flows from the people. The same premise can be found expressed in the Declaration of Arbroath, which is not seen as that important in England, because the context is different. John Ballliol was rejected and the Bruce made king. The Declaration is a commentary on it.
“Him, (Robert the Bruce) too, divine providence, his right of succession according to or laws and customs which we shall maintain to the death, and the due consent and assent of us all have made our Prince and King.
To him, as to the man by whom salvation has been wrought unto our people, we are bound both by law and by his merits that our freedom may be still maintained, and by him, come what may, we mean to stand.”
The nature of kingship differed from the English model. It is a distinction which befuddled the English. An argument was advanced (by John Hastings) in the dispute over the kingship of Scotland at that period that Scotland was not a proper kingdom , since Scottish Kings were not crowned and anointed in the way the English ones were. A crown seems to have been used for the first time in Scotland in the early 13th century and Papal approval for Scottish anointing only came in 1329. What did happen anciently was an enthronement, traditionally on the Stone of Destiny, and recognition.
The Scottish system has at its heart a notion of monarchy which requires approval by the people, te English one sets monarchy as by legal authority and potentially independent of the subjects.
One can traces this thinking in Scotland through various writers, and one of its recent manifestations comes in the draft Scottish Constitution. (http://www.gov.scot/resource/0045/00452762.pdf)
This has a certain pratical application. It is sadly true that Scotland has been the junior partner is the Union since its inception. It explains why the Stewarts as kings of England tended to absulutism, they had a different legal frame wrok and James I and VI in England was legally free to push the idea. Elizabeth I had been more circumspect about it of course.
The history of England has been an attempt to wrest concessions from kings, from Magna Carta onwards, but the expectation is top down and concessions. Scotland expects power to be exercised by consent.
It means that any attempt at a written constitution in England is riddled with problems, in Scotland it would be a continuity of ancient thinking and of historical resonance. It means that the Scots are likely to be wary of any elite telling them what to do, in England it is part of the natural order.
This means that English ways of doing things will be met with a degree of incomprehension. The fit will always be bad. Even during the nineteenth century prosperity there were issues and nationalism has re-emerged since the second world war. I suggest that there has never been a full enthusiasm for the union in Scotland anyway. It has become possible for the dissolution of the Union to take effect.
Independence is not a rarity for a nation. It is the norm. It is especially the case when the attempted union is with a profoundly different cultue. The basis of the state is different in Scotland to that in England and Scotland . Some shared history is not enough, any more than it would be between Germany and France to establish a single state. It is not a case that can be won on economic grounds, it is not even a case of voting for Europe or against the Tories. It is about a different and profound sense of what it means to be a country and the basis on which it is run.
There is an argument which says that the Union was based on a Treaty and the time has come to end that treaty. I am not arguing for UDI but I do feel strongly the time has come for an amicable separation. What does matter is that if Scotland withdraws consent to the unin, and the Westminster Government then under Scottish thinking there is no validity to any attempt to direct rule by Westminster. Scotland is revealed as indpendant or else Westminster is seen as a colonial power imposing its will by conquest and by occupation, through force of arms if needed.
Ideas are dangerous.
I am open to any comment.