This morning, Sky News reported a claim by a Law professor from Durham University that argued the UK Government must vote on whether or not Britain should leave the European Union.
The professor stated that 'we' have “parliamentary sovereignty in the UK”, which, he said, means the recent referendum decision is not the final word on EU membership. The UK Parliament exercises sovereign (ultimate) power on behalf of the Sovereign (the Queen), which means that only the UK Parliament can take a decision – in or out – in terms of EU membership.
The professor's statement is wrong in one very important matter: parliamentary sovereignty exists only in England, not across the whole United Kingdom. This issue is crucial in relation to the decision taken by Scots to remain within the European Union.
In Scots law the people are the sovereign power, not the monarch. Dating back to the Declaration of Arbroath (The Letter of the Barons of Scotland to Pope John XXII) in 1320, it has been established that no monarch can ascend the throne of Scotland without “the expressed will and wishes of the people of Scotland”. The Declaration also makes clear that if a King did not act in accordance with the will of the Scottish people, then the 'sovereign power' – the people - would depose the monarch and elect another.
The Declaration of Arbroath, enshrining Scotland's right to exist as an independent nation – and the crucial clause confirming the people as the sovereign power – was accepted by Pope John XXII. In 1320 the Pope was essentially the United Nations, which means that Scotland is one of the oldest-recognised nations in the world.
The difference, then, between Scots law and English law is that, in Scotland, parliament is not sovereign. No parliament – Scottish or UK – needs to ratify a decision of the Scottish people. In fact, neither of those parliaments has the power or authority to overrule a decision of the Scottish people.
In June's EU Referendum, the people of Scotland overwhelmingly voted to remain within the European Union. According to Scots law, this is the end of the matter. The sovereign power in the land – the people – has spoken. Scots must not be dragged-out of the EU against their will.
Now, some British Unionists will no doubt argue that a position adopted in 1320 cannot be held as still determining Scots' legal status as the sovereign power, particularly as the Declaration of Arbroath was superseded by the Act of Union in 1707, which 'united' the parliaments of England and Scotland.
However, in April 1689, the Scots Parliament passed 'The Claim of Right', which reiterated the established rights of the Scots Parliament in relation to the Crown – the role of the monarch is to reign, parliament legislates and the people of Scotland are the supreme constitutional authority.
The Claim of Right was not affected, in any way, by the Act of Union of 1707, and therefore remains legally in force today. Both English and Scots law were specifically excluded from the Treaty of Union that established the British Parliament.
This position was reconfirmed in 1953, in the case of 'McCormick V The Lord Advocate', where Lord Cooper of Cardross, Lord President of the Court of Session, stated unequivocally: “The unlimited sovereignty of Parliament [the English legal position] has no counterpart in Scottish Constitutional Law.”
The ultimate legal power in Scotland is the people, and the people spoke last June when they decided by a significant majority to remain within the European Union.