In pre-union Scotland there existed a legislature whose existence can be traced back to at least 1286. Called the Convention of the Estates (and also known as the assembly of the communities) it was a body that represented the sovereign people of Scotland.
Although a legislative body, it did not govern except when there was no monarch. In those days the king or queen called parliaments and if there was no monarch there was no parliament. So it wasn’t a permanent body but was recalled as needed.
The Convention was the broker between the people and the government, agreeing taxes, drafting legislation and, when necessary, removing the government if it breached its contract with the people. It could even remove a king, and it actually did so. It got rid of King James VII in 1689.
Before the union, therefore, the Scottish parliament and the Scottish government knew their place. Government understood that its power was only loaned from the people, a principle called popular sovereignty; and that it had to govern in the interests of the people, a principle called the primacy of the common good.
When the Convention removed King James VII (and II of England) from power in Scotland in 1689 it did so by passing an Act called the Claim of Right. If you have heard of the Claim of Right at all (and most people haven’t) it may be in its modern context that “the people of Scotland have the inalienable right to determine the form of government best suited to their needs”. But the Claim of Right was, and is, much more than that, which is why you’ve probably never heard of it and the British State would like very much to keep it that way.
The Claim of Right Act did two things: i) it got rid of the king and ii) it set out in law the grounds on which the king was removed. In other words, it wrote a constitution for Scotland.
At its heart, the constitution in the Claim of Right affirms the power of the people – that’s you and me, by the way – and guarantees our sovereignty. That’s right. In Scotland, it’s we, the people, who are sovereign, not the British Parliament, whatever the British Supreme Court might say to the contrary. And being sovereign means that we’re in charge.
Just because it was passed in 1689 doesn’t mean that it’s some crusty old legislation that has no relevance today and can safely be ignored – although that’s exactly what the British State would like you to do. After all, it’s ignored the Claim of Right since the union began.
In any case, when did age nullify old laws? Magna Carta was signed in 1215 but its effects still resonate around the world today. The US Constitution is 250 years old and still governs America. The English Bill of Rights (which you might well have heard of) passed in the same year of 1689, transferred the absolute power of the monarch to the English parliament, which gives the British parliament its sovereignty today (except not over Scotland).
But, wait. The Claim of Right pre-dates the UK being formed. Surely it can’t have survived the union? Well, it did. And here’s the tale.
In the difficult treaty negotiations between the two teams of commissioners (both appointed by her majesty Queen Anne of course – remember one queen, two nations?) who were assembled to write the articles of the treaty, there was one especially thorny obstacle: as we have now seen, the two nations had opposing and irreconcilable constitutions.
In England, the Bill of Rights gave parliament sovereignty over the people. In Scotland, the Claim of Right guaranteed the people’s sovereignty over parliament. In the end, the incompatibility of the constitutions could not be resolved and so the two nations agreed to keep their respective constitutions, with a guarantee that in post-union Scotland the Claim of Right would continue.
That guarantee took the form of a clause inserted into the preamble of both the Scottish and English Acts of Union and was specified as a condition of the Treaty and of the Union itself, “for all time coming”.
In other words, the Claim of Right is still law, protected as a condition of the Treaty of Union, which means that the Scottish people – that’s you and me, remember – are still sovereign in Scotland, not the British parliament.
Sovereignty is a very big deal, which is why you’ve never heard that you are sovereign.
If the Claim of Right guarantees our sovereignty, then sovereignty gives us the power.