European Affairs — House of Commons, 2016-02-25
Topic: International Affairs
Joanna Catherine Cherry (Scottish National Party, Centre-left): My right hon. Friend is quite correct. Many of the founding fathers of the American constitution were of Scots descent and therefore drew on the Declaration of Arbroath in framing it Anyone who doubts that there is a firm foundation for the notion that in Scotland the people are sovereign should look to the writings of the late Professor Neil MacCormick, who was regius professor emeritus of public law and the law of nature and nations at the University of Edinburgh. He was a distinguished Scottish nationalist and the son of the petitioner in the MacCormick case that I mentioned earlier, as well as being an internationally recognised jurist. Nobody could doubt his eminence in the field of public law and constitutional theory What I am asking for is respect when this Parliament comes to debate the Prime Minister’s Bill that deals with British sovereignty, if that is what we are going to have. I understand that many hon. Members from England hold Dicey’s doctrine of parliamentary sovereignty very dear and I am aware that it can be traced back to Tudor times and beyond. I am sure that they will be keen to preserve it, insofar as it has not suffered many knocks already However, we were told repeatedly during the Scottish independence referendum that Scotland was an equal partner in the Union. Therefore, I am sure that hon. Members from England, including the Prime Minister and the Government, will wish to accord the Scottish doctrine of the sovereignty of the people of Scotland equal respect. When our two Parliaments united in 1707, it was not the case that the English Parliament somehow swallowed whole the Scottish Parliament. It was a Union of two Parliaments. Therefore, it is not logical to say that the English notion of the doctrine of the sovereignty of Parliament should reign supreme, and that the Scottish notion of the doctrine of the sovereignty of the people should be ignored In fact, it is often said that the advocates of parliamentary sovereignty are defending a doctrine that not even the higher English judiciary believe in any more. It is interesting to observe—I am very indebted to my friend, Lord Lester of Herne Hill, for drawing this to my attention—that Dicey himself, in his ardent opposition to Irish home rule, was prepared to depart from his doctrine of parliamentary sovereignty. In 1913, Dicey contended that if Asquith’s Home Rule Bill was enacted by this Parliament, it "would have no constitutional validity as a law" and that "it would be justifiable for the Ulster Unionists to resort to rebellion, if necessary, to prevent Irish Home Rule" If any hon. Members are interested in the reference for that, I can give it to them later. So even Dicey himself was prepared to depart from the notion that the English Parliament was wholly sovereign If the doctrine of parliamentary supremacy is compromised in English law, even by its greatest exponent, there is all the more reason for the UK Government to recognise that it has no counterpart in Scotland, to tread carefully when they bring forward their British sovereignty Bill and to accord some respect to the different notions of sovereignty across these islands.