I have to agree with David McLetchie that power devolved is, indeed, power retained. We are talking about obtaining independence. As a divorce lawyer—as I was—he knows that when one party sees the end of the marriage, the marriage is at an end. The detail is then negotiated according to law and practice. The same would happen in the separation of two parts of the United Kingdom.
It is sometimes important to work back to why certain assertions are made—for example, in the claim of right, the assertion that the Scottish people are sovereign. Much slips into our everyday parlance that has a deep-rooted and substantive cultural constitutional genesis. For example, we hear Scots being reprimanded for saying “I seen it” or “I done it”. That is, in fact, grammatical language. Those phrases have survived through centuries of spoken Scots. They are not lazy or ignorant slang, but an echo from the past.
That takes me to the claim of right from 1989 and the words:
“We, gathered as the Scottish Constitutional Convention, do hereby acknowledge the sovereign right of the Scottish people to determine the form of Government best suited to their needs”.
That Constitutional Convention was proposed in a private members bill way back in 1980 by the SNP leader, Gordon Wilson. Where did that sovereign right come from? There is no written UK constitution, but there are fragments of an incomplete constitutional jigsaw, some of which predate the treaty of union. We have to go as far back as the declaration of Arbroath—a declaration of Scottish independence and of conditional monarchy. Talking of Robert the Bruce, it says:
“Yet if he should give up what he has begun, and agree to make us or our kingdom subject to the King of England or the English, we should exert ourselves at once to drive him out as our enemy and a subverter of his own rights and ours, and make some other man who was well able to defend us our King; for, as long as but a hundred of us remain alive, never will we on any conditions be brought under English rule.”
That shows that he was a king who was in office by leave of those who, at the time, represented the people. They were a narrow bunch—some 51 magnates and nobles—but, nevertheless, he was on parole.
The significance of those words, resonating through the centuries, is that the monarch’s power to rule was conditional on the will of the people of Scotland. That is reflected in the fact that Queen Elizabeth is Queen of Scots and not of Scotland. Therefore, sovereignty—now exercised in this democracy by various institutions—is exercised through the expressed will of the Scottish people.
That takes me to why Queen Elizabeth is designed Queen of England. If my recollection is accurate, Henry VIII of the Tudor dynasty, installing himself as the head of the church, embedded the divine right of kings to rule. Sovereignty—the embodiment of which was the monarch—was absolute. However, as power was removed from the Crown and transferred to the English Parliament through the centuries, so was sovereignty. Therefore, the English Parliament was, indeed, sovereign, but that does not overrule or supersede the conflicting principle of the sovereignty of the Scottish people.
Article III of the Union with Scotland Act 1706 says:
“That the United Kingdom ... be represented by one and the same Parliament to be stiled The Parliament of Great Britain.”
The significance of that is that that Parliament was not a continuation of the English Parliament or of the Scottish Parliament. Therefore, for Scotland, sovereignty remains as it always was—with the people.
I pray in aid the case of MacCormick v the Lord Advocate, from the 1953 session cases. At that time, postboxes with “E II R” on them had been blown up, because Elizabeth was the first Elizabeth of Scotland. In that case, the following remarks were made obiter:
“Considering that the Union legislation extinguished the Parliaments of Scotland and England and replaced them by a new Parliament, I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament ... as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done ... The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law.”
So, why the potted constitutional history lesson? It is because it is significant to the legitimacy of the referendum, which will of course not be consultative, but will have legal and constitutional authority, as well as political authority.
In 1979 and 1997, there was no Scottish institution to provide a mechanism for asking the Scottish people a question on the constitution. In 1979, the UK Government took it upon itself to draw up a referendum. Of course, it produced the question and chose the date—1 March 1979, which was right in the middle of the winter of discontent, when snow was falling over Scotland. That was an omen, but the 40 per cent rule, which in effect counted the dead and those who did not exercise their franchise as having voted no, was the real treachery. That was compounded by Sir Alec Douglas-Home broadcasting on the eve of the poll that we should vote no for a better deal. Plus ça change, plus c’est la même chose.
Now we have our own mechanism in the Scottish Parliament, but we do not need to have a Parliament. Even if the Parliament did not exist, if the Scottish people streamed out on to the streets of our towns, cities and villages to say with a clear voice on megaphones, on marches and online that they wanted an independent Scotland again, that would be a declaration of independence. No challenge from the Palace of Westminster, the corridors of the United Nations, this place or any courts could gainsay that. The Scottish people would say that they done it, and they done it their way.