Nationalists on path to danger over parliament's sovereignty

Monday 13 August 2012

Iain Paterson repeats the oft-heard and utterly erroneous Nationalist assertion that the "Court of Session has ruled" the "English" doctrine of parliamentary sovereignty has no counterpart in Scottish constitutional law (Letters, August 11).

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In the case to which he refers, MacCormick and Another v The Lord Advocate, the Lord President Lord Cooper simply ventured his considered opinion (an "obiter dictum" in law) which formed no part of the reason for the final judgment (which MacCormick lost).

Furthermore, Lord Cooper failed to distinguish between the legal sovereignty of Parliament (any parliament) to make law, and the democratic sovereignty of the people (any people) to elect that Parliament in the first place. These are two distinct principles of sovereignty which exist in all modern societies. That is to say, the people engaged in voting are the fount of sovereignty in a democratic sense but once we have elected a Parliament, then the Parliament must be sovereign in a legal sense, until we elect a new one. If the people don't like the laws of the Parliament, then we vote it out. That is how all modern democratic societies work and how they must continue to work if we wish to remain civil and relatively safe.Unfortunately, quite a few Nationalists seem to have manufactured for themselves a self-serving and very dangerous version of sovereignty peculiar to Scotland, where if "the people" don't like the Westminster Parliament they can ignore it. This is not a mere pedantic point. Carried to its extreme, this conception of exclusive sovereignty resting in "the people" is socially harmful, justifying rebellion and mob rule.Mr Paterson holds up the 13 colonies as if it were some kind of example. It's more a warning of how fast violence can descend when these principles are disregarded.Alistair McConnachie,268 Bath Street,Glasgow.I am concerned that David C Purdie (Letters, August 11) believes that Richard Mowbray lives on the "wrong side of the country" and therefore the Holyrood parliament is out of sight. As I also live on the wrong side, this illustrates my conviction that the Scottish Parliament building should never have been placed in Edinburgh in the first place. Not only has there been significant demographic change in Scotland since the 1707 Union, but the medieval Scottish Parliament frequently moved around Scottish towns and was only regularly in Edinburgh since James II's time. The obvious place it should have been built was Stirling due to centrality, historical significance and the fact it was neither Glasgow nor Edinburgh.On the same letters page Alasdair MacKenzie refers to the somewhat outdated legal opinion of Lord Cooper that Parliamentary sovereignty is an English principle and has no "counterpart in Scottish constitutional law". Doubtless I could be challenged but the issue seems to me to be largely hinged on the fact both parliaments invoked their own Acts in 1706 and 1707 to enable the Treaty of Union to be signed. Neither of these parliaments now exists but, unhelpfully in the context of the terms constitution and sovereignty, their independent legal systems do. The current Scottish Parliament is not – as Winnie Ewing MSP tried to convince us at its opening – the old one "reconvened", but a different institution established and empowered by the unified Parliament of Great Britain and Northern Ireland. If there were indeed to be a decisive Yes vote for Scottish secession from the Union in the independence referendum it would appear to me so convoluted a consequence as to require the Prime Minister and also the First Minister to approach both the European Parliament, which may assume it has the power to veto the terms of secession within a member state, and also to seek intervention from the International Court of Justice.What they would make of the dilemma in The Hague is anyone's guess but I suspect the constitutional imperative and the right to hold the referendum would take the judiciary several years of hopefully peaceful deliberation. Bill Brown,46 Breadie Drive,Milngavie.Alasdair MacKenzie argues "a power that it never had could not have been retained as a reserved matter by Westminster".If he is correct, does not his argument apply equally to those powers purported to have been devolved by Westminster to Holyrood, thus calling into question the legitimacy of the establishment of Holyrood and consequently any laws it has made? If so, are we living unknowingly in a state of anarchy?Alan Fitzpatrick,10 Solomon's View,Dunlop.

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Nationalists on path to danger over parliament's sovereignty

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