‘In Scotland, the people are sovereign.’ This bold statement can be followed back 700 years to the Declaration of Abroath. The Declaration asserted the right of the Scots to choose a new king if the existing -in the struggle against the Stuarts’ belief in that kings had a ‘divine right’ to rule and make laws. In June 2014, the claim that in Scotland the people are sovereign was included in the Interim Scottish Constitution.
But for Edmund Burke, writing in 1790, it was not the Scots but Jean-Jacque Rousseau who had invented ‘this fundamental and fatal principle, pregnant with every mischief and every crime, that in every country the people is the legitimate sovereign’. Burke was convinced that Rousseau’s doctrine of popular sovereignty had given rise to the French Revolution. For Burke, popular sovereignty subverted all the principles of morality and politics and made the authority of government dependent on the mere will of the multitude.
The first European use of a referendum to establish the mere will of the multitude took place in the summer of 1793, when the revolutionary government in France held a referendum on the new Constitution. This subversion of the principles of morality and politics had been preceded by one held in the newly independent USA state of Massachusetts in 1778 to ratify its Constitution.
Despite Edmund Burke’s tirades against popular sovereignty, the democratic principles established by the American and French Revolutions are now taken for granted around the world. If there is a Yes vote on 18 September, they will become established in Scotland as well. But what if the result is a No?
Unless the No vote is overwhelming, the movement towards independence is not going to go away. Indeed, if a No vote is taken as being a vote of confidence in the political and economic status quo, the resulting economic intensification of ‘austerity’ will increase the demand for political reform. However, with Scotland freshly re-Unionised, it will be difficult to keep such demands contained north of the Border.
If I was a latter-day Edmund Burke, obsessed with keeping the dangerous doctrine of popular sovereignty well away from the Palace of Westminster bay, my nightmare would be a narrow No vote. Such a vote would not crush the aspirations of the rebellious Scots, but rather embolden them. What damage to the great British constitution might the Scots Jacobins do in their assertion of the ‘mere’ will of the multitude against the authority of government?
If Scotland votes Yes on 18 September, the walls of the Palace of Westminster might be gently shaken, but there will be no revolutionary stir for ‘English’ constitutional reform. The citizens of Scotland will be left firmly alone to argue the finer points of their new written constitution. But if there is a marginal No, it will be seen by all but the most Burkean Unionists as merely marking the onset of an interregnum, a gap or pause before the sovereign will of the people of Scotland finally asserts itself.
How might the energies of Yes campaigners be exercised during this interregnum? An obvious focus for such campaigners will be the construction of a Scottish Constitution. The Interim Constitution proposed by the Scottish Government’s Scottish Independence Bill can be the starting point for popular participation in this process.
At the heart of any debate about a Scottish Constitution is the crucial question: are the people of Scotland sovereign? If the answer is yes, they are, then independence becomes inevitable. The British state, the United Kingdom as an ancien regime, is based on the principle of parliamentary sovereignty, not the sovereignty of the people. This is how the UK parliament website puts it:
Parliamentary sovereignty is a principle of the UK constitution. It makes Parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation and no Parliament can pass laws that future Parliaments cannot change. Parliamentary sovereignty is the most important part of the UK constitution.
An assertion by one part of the United Kingdom that the people not parliament are sovereign would be revolutionary. It is revolutionary because the core demand is the assertion of democratic control over economic decision making. Without a social economy, the capture of the UK’s sovereign parliament by big business will continue- as will the imposition of austerity measures designed to protect business interests at t the expense of social cohesion.
In this analysis, the sovereign will of the people in Scotland is for social and economic justice. The UK state can neither let Scotland go nor reform itself via its parliament to deliver social and economic justice for all its citizens. Something has to give. The UK state hopes that having allowed Scotland its referendum and achieved a No, the contradictions will disappear and business as usual be resumed. But will they?
If the referendum campaign has revitalised and politicised civil society in Scotland, the conflict between popular and parliamentary sovereignties will not go away. At the same time, unless there is an economic miracle, the social tensions created by perpetual austerity measures will increase. It is likely that the Labour party in Scotland’s support for the No campaign will weaken it. This will be especially so if, following a win for No, promises of further devolution are not delivered. A new Left party in Scotland could then start to win Westminster elections. This in turn would create a demand for UK labour to move to the left or open up a space for the Green party or a new English and Welsh Left party.
Such prospects may seem impossible now, but then so did the possibility of a Scottish independence referendum a few years ago. Which ever way the vote goes on 18 September, the dam which has held back revolutionary constitutional change in the UK since Edmund Burke’s time now has a crack in it. Right now, the dangerous idea that the people are sovereign has only a trickle of support. But if the crack widens, the trickle will become a flood.