The Act was, however, a most unusual piece of legislation, for it appeared to be a sort of concordat between state and the Kirk, a phenomenon unheard of in British constitutional practice. The Union of occupies an anomalous position in British constitutional theory.
Colin Kidd · A British Bundesrat?: Scotland and the Constitution · LRB 17 April
The overwhelmingly dominant doctrine in British constitutional interpretation is that formulated by A. Dicey Dicey held the view that parliament was supreme and unconfined, and that there was no fundamental law at the foundation of the British constitution. In other words, the British parliament is the supreme decision-making body in the realm, and nothing constrains it, not even the Union agreement itself.
Indeed, Dicey was quite specific about the status of the Union, which was just an ordinary statute, as far as he was concerned, and enjoyed no special immunity from repeal and amendment by subsequent parliaments. The Act of Union had exactly the same status as the most humdrum piece of legislation: 'neither the Act of Union with Scotland, nor the Dentists Act, has more claim than the other to be considered a supreme law.
Book review: Acts Of Union: Acts Of Disunion by Linda Colley
However, cracks in the edifice began to appear from onwards, with the curious case of MacCormick v Lord Advocate in Scotland's Court of Session. MacCormick brought legal proceedings against the style of the new monarch Elizabeth II, on the grounds that she was the first Queen Elizabeth of the United Kingdom, though the second of England.
Although the Court of Session rejected MacCormick's case, on the grounds that the Queen's style was derived from her prerogative powers and therefore not justiciable, the Lord President of the Court, Lord Cooper , an eminent legal historian and former Unionist i. Conservative politician, delivered a direct challenge to the prevailing Diceyan orthodoxy in his judgment:. The principle of the unlimited sovereignty of parliament is a distinctively English principle which has no counterpart in Scottish constitutional law Considering that the Union legislation extinguished the parliaments of Scotland and England and replaced them by a new parliament, I have difficulty seeing why it should have been supposed that the new parliament of Great Britain must inherit all the peculiar characteristics of the English parliament but none of the Scottish parliament, as if all that happened in was that Scottish representatives were admitted to the parliament of England.
Cooper's remarks inspired a non-Diceyan reading of the British constitution, which enjoyed considerable influence in Scottish juridical circles. It raised the far from pedantic issue of whether the Union should be referred to as the Act of Union for it was not simply an Act of the English Parliament or as the Treaty of Union an international agreement between sovereign powers, whose monarchs - Queen Anne of Scotland and Queen Anne of England - just happened to be the same person.
Smith, noted that the Treaty had immediately lost any standing in international law with the expiry of its two parties, Scotland and England, in The Union was, perhaps, best described as an ensemble of Acts of Union, passed by two sovereign parliaments, including the Acts for the security of the Churches of Scotland and England. Cooper's interrogation of the doctrine of unlimited parliamentary sovereignty resurfaced on the bench. In Gibson v Lord Advocate , Lord Keith pondered the limits of parliament's competence within the Union : 'Like Lord Cooper, I prefer to reserve my opinion on what the position would be if the United Kingdom parliament passed an Act purporting to abolish the Court of Session or the Church of Scotland or to substitute English law for the whole body of Scots private law.
In MacCormick's formulation the Union was accorded recognition as the basis - however skeletal - of a post British constitution: 'Whatever the Queen in Parliament enacts, unless in derogation from the justiciable limits set by the Articles of Union, is law'. The old unquestioned standards of Diceyan orthodoxy have been exposed to criticism from various quarters in recent decades, but none has been more sustained than the anti-Diceyan reading of the British Union-state and its constitution inaugurated by Cooper at Elizabeth II's accession.
Few wrinkles in the constitution of Britain's multi-national state have caused as much irritation and anxiety as the West Lothian Question. Named after the long-standing anti-devolutionist Labour MP for West Lothian, Tam Dalyell, who first asked it during the devolution debates of the lates, the West Lothian Question raises the anomalous position of Scottish MPs with regard to domestic English legislation in an asymmetrical, non-federalised constitution with devolved legislatures: why should Scottish MPs at Westminster, who cannot make decisions say, on health and education, for their own constituents, as these would be matters for devolved assemblies or parliaments, nonetheless have decision-making powers with regard to health and education matters for England?
If, unlike the Scots, Welsh and Northern Irish, the English people have neither an English parliament of their own, nor devolved assemblies in the English regions, then the UK parliament functions both as a parliament for the whole multi-national state and for the English nation; but the MPs in that body enjoy the same powers and responsibilities whether they sit for an English seat or a constituency in one of the territories with a devolved legislature.
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How can the West Lothian Question be resolved? The Conservatives have, however, proposed various alternative solutions. In Kenneth Baker, the former Conservative minister, now Lord Baker, introduced a private members bill in the Lords with the effect of altering Commons procedure so that English MPs, alone, would be able to vote on English legislation.
However, it was difficult to determine what exactly was exclusively English legislation, even within a single bill. As Labour's Lord Foulkes noted, such was the complexity of most UK legislation, with clauses applying sometimes to England alone, sometimes to England and Wales, sometimes to Great Britain including Scotland , and sometimes to the whole of the United Kingdom including Northern Ireland as well , that under Baker's scheme of excluding non-English MPs from voting on English measures, 'Scottish, Welsh and Northern Irish MPs would be in and out like some kind of parliamentary hokey-cokey'.
Baker's solution to the West Lothian Question, Foulkes suggested, was 'completely unworkable'. In Sir Malcolm Rifkind, a leading Scottish Conservative MP representing a London seat, came up with another solution, whereby English-only legislation would be sent at Second Reading to an English Grand Committee, composed according to the proportional strengths of the parties in England alone.
The House of Commons as a whole would retain the power to overturn decisions of the English Grand Committee, but by convention would refrain from doing so. Rifkind thought he had found a panacea which did not infringe the voting powers of non-English MPs. All MPs would remain theoretically equal. A further refinement of Rifkind's answer was developed on behalf of the Conservatives by Kenneth Clarke's Democracy Taskforce.
Clarke's group formulated a procedure in which exclusively English bills would be handled by English MPs, only, at the Committee and Report stages of legislation. Another pragmatic solution, which has been implemented in a piecemeal fashion so far - to reduce the numbers of Welsh, Scottish and Northern Irish MPs at Westminster - fails to address the constitutional principle involved.
The question remains unresolved, though it will now be formally investigated by the Mckay Commission which the government set up in January Nevertheless, some commentators still believe that the West Lothian Question is a constitutional anomaly best swept under the carpet, all of the proposed solutions being potentially more troublesome than the problem they are devised to remedy.
There is an element of truth in this allusion; however, such is the anomalous position of the Union as a whole, that the West Lothian Question brings into focus the broader problem of superimposing an asymmetrical, multi-territorial polity upon the historic constitution of the English nation-state.
The growing acceptance in Scotland of the ideas first revived by Lord Cooper means that politicians, jurists and commentators from England and Scotland are finding it difficult to capture the shifting registers and shades of meaning deployed in constitutional idioms on the other side of the border. In particular, the English political classes seem oblivious of a Scottish constitutional tradition - or at least the claim to a distinctive Scottish tradition - which diverges significantly from the dominant Anglo-British understanding of parliamentary sovereignty.
Is the British constitution simply the English constitution writ larger, or do Scottish constitutional principles lurk at the margins of a multi-national constitutional order, rarely invoked perhaps but a resource on which Scots might draw at moments of crisis? As the Union was founded upon a Treaty between two sovereign states, so, many Scots contend, there was no compelling reason why the new state should be a mere continuation of England and of England's constitution.
In practice, when the two kingdoms of Scotland and England united in the English political elite which manned the institutions of the new, united state silently adopted the constitutional principles of the larger partner. Thereafter the constitution of Great Britain operated on the basis of the principles of , the doctrine of parliamentary sovereignty enshrined in the Glorious Revolution.
It is still unclear what the Scottish understanding of sovereignty was at the time of the Union of , and how far and in what ways it departed from English conceptions of sovereignty. Nonetheless, a distinguished lineage of Scottish jurists, politicians and historians has made the point that the idea of popular sovereignty can be found in Scottish political thought from the Declaration of Arbroath in A consensus has emerged within the Scots intelligentsia that since the country's indigenous constitutional tradition has been one of popular, rather than parliamentary, sovereignty.
In other words, before , sovereignty resided in the people - and it has never ceased to do so, notwithstanding the assumptions of English Diceyan orthodoxy and the unfortunate fact that popular sovereignty was submerged and largely latent for a long period after until its modern resuscitation and authoritative restatement by Lord Cooper in the s.
Very occasionally, the subtle theoretical distinction between popular and parliamentary sovereignty surfaces in everyday politics. Behind the aggressive posturing of Cameron and Salmond over the nature and timing of the Scottish referendum lay a clash of substance - of conflicting constitutional principles. When Salmond invoked the right of the Scottish people to decide on the date and the character of a referendum, he was not only challenging the authority of Westminster or invoking a general right to self-determination, he was also espousing the popular sovereignty principles of Popular sovereignty is not simply a nationalist shibboleth.
There are plenty of unionist politicians in Scotland - Labour and Liberal - who subscribe to the idea of Scottish popular sovereignty. Indeed, the idea of popular sovereignty also underpinned the Claim of Right for Scotland in This document, which was signed by all of Scotland's sitting Labour and Liberal MPs with the exception of the maverick Labour MP Tam Dalyell and many of the leaders of Scottish civil society, declared 'the sovereign right of the Scottish people to determine the form of government best suited to their needs'.
The popular sovereignty principles of the Claim of Right provided a platform of legitimacy for the deliberations of the Lib-Lab Constitutional Convention which met during the Thatcher-Major era without a formal constitutional mandate. Facebook Instagram Twitter. Sign In Register Help Basket.
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Union and Disunion in the Nineteenth Century
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