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    Peter, Speirs (2015) Scotlands challenge to parliamentary sovereignty: can Westminster abolish the Scottish Parliament unilaterally? LL.M(R) thesis. http://theses.gla.ac.uk/6663/ Copyright and moral rights for this thesis are retained by the author A copy can be downloaded for personal non-commercial research or study, without prior permission or charge This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the Author The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the Author When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given.

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  • Scotlands Challenge to Parliamentary Sovereignty: Can

    Westminster Abolish the Scottish Parliament

    Unilaterally?

    Peter Speirs

    LL.B (Hons) Dip. L.P.

    Submitted in fulfillment of the requirements for the Degree off LL.M by Research

    School of Law

    College of Social Sciences

    University of Glasgow

    May 2015

  • 2

    Abstract

    The question of the contemporary status of parliamentary sovereignty is a significant and

    vexed one. The doctrines status in Scotland has been a vexed academic issue for centuries.

    It has been further problematized by the inception of the Scottish Parliament and the recent

    Scottish Independence Referendum. The central question of this work is: can Westminster

    abolish the Scottish Parliament unilaterally? This issue will be explored in five parts. The

    first section will consist of a broad discussion of sovereignty, focusing on the classical

    debates regarding Westminsters sovereignty and the question of whether Scotland

    possessed a distinct tradition of popular sovereignty prior to entering the Union. The work

    will then examine the events of the 1980s and 1990s and argue that it represented a

    constitutional step change in Scotland. The work will then explore the constitutional and

    political meaning of referendums, before the theories of constitutional unsettlement and

    constitutional moments.

    The central contention of this work is that, whilst a distinctly Scottish approach to

    sovereignty did not exist until the 1990s, the political rupture created by the Conservative

    government of the 1980s and 1990s acted as a constitutional moment, crystalized in the

    1997 Referendum on Devolution, which politically entrenched the Scottish Parliaments

    status in the Scottish and British constitutional orders. The 2014 Referendum confirmed

    the political necessity for recourse to popular sovereignty on profound constitutional

    issues. This, however, has not been reflected in law. Westminster retains the theoretical

    capacity to abolish the Scottish Parliament. In reality, this is an almost meaningless power,

    but the power cannot be removed without destroying parliamentary sovereignty itself. The

    state of constitutional unsettlement that the United Kingdom continues to exist in means

    that there is little hope for formal settlement of this issue, even taking into account the

    impending legislative confirmation of the Scottish Parliaments political permanence.

  • 3

    Contents

    Abstract 2

    Acknowledgments 5

    Declaration 5

    Chapter 1: Parliamentary Sovereignty in Scotland Today 6

    Chapter 2: Parliamentary Sovereignty: Theory and Reality in Scotland

    2.1 Theory 8

    2.1.1 Dicey 9

    2.1.2 Limitations on the Principle 10

    2.1.3 Hart 12

    2.2 Implied Repeal: Continuing and self-embracing Sovereignty 14

    2.2.1 The New View 15

    2.2.2. Jackson 16

    2.3 Constitutional Statutes and the Challenge of the Common Law 17

    2.3.1 The Source of Legislative Supremacy and Common Law

    Constitutionalism 21

    2.4 Historical Sovereignty 23

    2.4.1 The Pre-Union Scots Parliament 24

    2.4.2 The Claim of Right 1689 and George Buchanan 25

    2.4.3 Post-Union Scotland 29

    2.4.4 The Acts and Treaty of Union 29

    2.4.5 MacCormick and the (not-so) Distinctly English Principle 31

    2.5 Conclusions 33

    Chapter 3: From Home Rule to the Scottish Parliament

    3.1 The Campaign for a Scottish Assembly 37

    3.1.1 A Claim of Right 38

    3.1.2 The Scottish Constitutional Convention 39

    3.1.3 Referendums 42

    3.2. Legitimacy 42

    3.2.1 Legitimacy and the 1980s devolution debate 44

    3.2.2 Legitimacy and the Poll Tax 45

  • 4

    3.2.3 The SCC and the Government 47

    3.2.4 The SCCs Legitimacy 49

    3.3 The Scotland Act 1998 51

    3.4 Conclusions 53

    Chapter 4: The Courts Approach to Devolution:

    From Whaley to Imperial Tobacco

    4.1 Early Cases 55

    4.1.1 Advances 56

    4.1.2 Lord Hopes Further Remarks 60

    4.2 Human Rights Cases 61

    4.3 The Accommodation of Devolution 61

    4.4 Conclusions 64

    Chapter 5: Referendums, Constitutional Moments and Constitutional

    Unsettlement

    5.1 Constitutional Referendums 67

    5.1.1 Popular Sovereignty 71

    5.1.2 Constituent and Constituted Power 73

    5.1.3 The 1997 Referendum 74

    5.1.4 The Peoples Referendum 76

    5.2 Constitutional Moments 77

    5.3 Walkers Constitutional Unsettlement 82

    5.3.1 An Unsettled Constitution 83

    5.3.2 Constitutional Unsettlement 85

    Chapter 6: Sovereignty Unsettled: Conclusions

    6.1 Scottish Constitutionalism 87

    5.1.1 The Scotland Act 2012 88

    6.2 Referendums 89

    6.3 Reflecting the Permanence of the Scottish Parliament 91

    6.4 Can Westminster Abolish the Scottish Parliament Unilaterally? 93

    Bibliography 99

  • 5

    Acknowledgements

    I would like to thank Professor Adam Tomkins for his invaluable advice, guidance and

    support, as well as Dr Christopher McCorkindale for helping me start it in the first place. I

    would also like to thank Isabel Speirs for reading, re-reading and re-reading again this

    work for errors, even though I am sure she found it incredibly boring.

    Declaration

    I declare that, except where explicit reference is made to the contribution of others, that

    this dissertation is the result of my own work and has not been submitted for any other

    degree at the University of Glasgow or any other institution.

    Signature _____________________________________

    Printed name _____________________________________

  • 6

    Chapter 1: Parliamentary Sovereignty in Scotland Today

    Lord have mercy upon my poor countrey that is so barbarously oppressed!1

    It will be a decisive shift in the balance of power in Britain, a long overdue

    transfer of sovereignty from those who are governed, from an ancient and

    indefensible Crown sovereignty to a modern popular sovereignty.2

    The constitutional accommodation of Scotland within the United Kingdom has been an

    issue for as long as there has been a United Kingdom. More recently, the constitutional

    status of the Scottish Parliament is an issue of significant contemporary importance. It

    formed part of the debate surrounding the recent Scottish Independence Referendum and

    was included as one of the Smith Commissions proposals, incorporated in the Draft

    Scotland Clauses proposed by the UK Government.3 Similarly, sovereignty and, in

    particular, parliamentary sovereignty is an increasingly contested concept within the

    United Kingdom and internationally.4

    The UK has traditionally been regarded as a unitary state, as opposed to a federal one.5

    The origins of parliamentary supremacy as well as the relationships between the Crown,

    courts and Parliament, were somewhat different in pre-Union Scotland and England.6

    Both countries entered the union voluntarily and negotiated their terms of entry. These

    terms make clear that Scotland possesses its own distinct civic society, and, most

    importantly, its own courts and legal system. MacCormick is right to say that there is no

    doubt that we have a single state, but it is at least possible that we have two interpretations,

    two conceptions, two understandings, of the constitution of that state.7

    1 Andrew Fletcher quoted in Letters of Andrew Fletcher of Saltoun and his Family 1717-16, History

    Society, Miscellany of History Society, Vol. X (Scottish History Society 1965). 2 Gordon Brown, Constitutional Change and the Future of Britain (Charter88 Sovereignty Lecture, London,

    9 March, 1992). 3 Clause 1, Draft Scotland Clauses 2015 featured in Scotland Office, Scotland in the United Kingdom: An

    Enduring Settlement (Cm 8990, 2015) 92. 4 See Martin Loughlin and Petra Dobner (eds), The Twilight of Constitutionalism? (OUP 2010) and Nico

    Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (OUP 2010). 5 Anthony Bradley and Keith Ewing, Constitutional and Administrative Law (15th ed Longman 2010) 40. 6 Adam Tomkins, The Constitutional Law in MacCormick v Lord Advocate (2004) JR 213-224. 7 Neil MacCormic

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