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Mr. McLeish: My hon. Friend raises important points of detail regarding the staffing of the Parliament. Suffice it to say that, at this stage, the matters are in hand. The discussions will ensure that we have the highest quality of staff, and will not lead to a two-tier situation in terms of standards. The clerking of the Parliament is vital. I would be happy to write to my hon. Friend to give the details of where we are in terms of his question.

Amendment agreed to.

Clause 21

Standing orders

Mr. Canavan: I beg to move amendment No. 106, in page 10, line 5, at end insert--


'(3) The standing orders shall include a requirement for every member elected to the Scottish Parliament to be requested to make the following affirmation:
"I do hereby acknowledge the sovereign right of the Scottish people to determine the form of Government best suited to their needs, and do hereby declare and pledge that in all our actions and deliberations their interests shall be paramount.".
and no other affirmation or oath shall be required of members of the Scottish Parliament.'.

Mr. Deputy Speaker: With this, it will be convenient to discuss amendment No. 125, in clause 79, page 36, line 34, leave out from beginning to end of line 11 on page 37.

Mr. Canavan: Clause 79 places a statutory obligation on all persons returned as Members of the Scottish Parliament to take the oath of allegiance, and forbids Members from taking part in any of the proceedings of the Scottish Parliament until such time as the Member takes that oath of allegiance. I assume that the oath of allegiance which is referred to in the Bill is the same as the one taken by Members of this House, who swear to be faithful and to bear true allegiance to the monarch, her heirs and successors.

Standing Order No. 5 of this House states:

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    "Every person returned as a Member of this House may make and subscribe a solemn affirmation in the form prescribed by statute instead of taking an oath."

In other words, if people have religious or other convictions whereby they feel that they cannot take the oath of allegiance, it is open to them to make an affirmation rather than to take that oath--although, of course, to make that affirmation is also solemnly to declare to be faithful and to bear true allegiance to the monarch, her heirs and successors.

The amendment would ensure that there was no statutory requirement on any elected Member of the Scottish Parliament to take any oath or, indeed, to make any affirmation. It would include in the Standing Orders of the Scottish Parliament a request--I emphasise that--that all Members make an affirmation. The wording of that affirmation would be the same as that of the Claim of Right, acknowledging the sovereignty of the people of Scotland. That Claim of Right was signed by members of the Scottish Constitutional Convention, including those Labour and Liberal Democrat Members of the House of Commons representing Scottish constituencies who took part in the convention's inaugural meeting in 1989. The sovereignty of the people is surely the basis of any genuine democracy.

Mr. Jenkin: Hear, hear.

Mr. Canavan: I am pleased to hear the shadow Minister saying, "Hear, hear." We are Members of the House because we were elected by the people. Therefore, our allegiance should be to the people rather than to any king or queen.

Mr. Jenkin: When the President of the United States takes office, he swears an oath of allegiance not to the people, but to the constitution of the United States. Is the hon. Gentleman saying that the United States is not a democracy because of that?

Mr. Canavan: Unlike the United States, this country does not have a written constitution. In any case, the United States constitution acknowledges the sovereignty of the people.

The Scottish Parliament will, I hope, be representative of the people of Scotland as a whole; it will represent the pluralist nature of Scottish society. It may include Members who are royalist and those who are republican; it may include Members who are atheist or agnostic and those who believe in God--in that category, there may be people of different beliefs. They will have in common the fact that they were elected by the people--therefore, they should have allegiance to the people. The amendment would not place a strict obligation on Members to subscribe to the Claim of Right. If, because of royalist or Unionist convictions, Members refused to affirm the Claim of Right, they would not be prevented from taking their seats--the amendment represents a request rather than an obligation.

Nevertheless, I hope that all Members of the Scottish Parliament--and, indeed, all Members of the House of Commons--will acknowledge the sovereign right of the Scottish people to determine the form of government best

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suited to their needs. That was the basic democratic principle agreed by the Scottish Constitutional Convention, which did much of the preparatory work to the Bill and to the establishment of the Scottish Parliament. It is, therefore, appropriate that all Members of the Scottish Parliament be requested to acknowledge that principle.

Mr. Jenkin: The amendments go to the heart of the likely consequences of the Bill.

The Secretary of State for Scotland (Mr. Donald Dewar): Ah!

Mr. Jenkin: I hear the Secretary of State saying,"Ah!" in a knowing way, perhaps because I am giving him satisfaction by behaving--as he would think--predictably.

Mr. Dewar indicated assent.

Mr. Jenkin: The right hon. Gentleman seems to agree. The constitutional effects of the Bill cannot be legislated for. However much we should like to think that the legal technicalities will determine the future politics of Scotland, that will not be the case--as is nowhere better illustrated than by the amendment, which refers to the Claim of Right.

8.15 pm

The Claim of Right--unsurprisingly, given its antecedents--reflects a mediaeval view of sovereignty. Sovereignty is not a question of deciding whether the rulers or the ruled are sovereign. The sovereignty of Parliament does not negate the sovereignty of the people; it reflects an agreement between people, collectively and individually, that their sovereignty is vested in our constitution, so that laws can be made and agreed to with the authority and consent of the people.

Mr. Salmond: If that is the case, why are United Kingdom referendums consultative rather than binding?

Mr. Jenkin: That is a matter for Parliament; Parliament could make a referendum result binding rather than consultative. In any sovereign state--whether a republic or a constitutional monarchy--the authority of the people is vested in the constitution, and the rules of that constitution are the supreme law of that state. People need rules to live together in harmony, and a set of rules is needed on how to make and interpret those rules. Whether a constitution is written or unwritten, the rules of the constitution are the supreme law of the state.

Mr. Salmond: Would not it assist people if the rules in a constitution were written rather than--as in the United Kingdom--unwritten?

Mr. Deputy Speaker: Order. We are drifting away from the amendment.

Mr. Jenkin: I totally agree with your interpretation, Mr. Deputy Speaker. It is irrelevant whether a constitution is written or unwritten--a constitution is the supreme

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authority of the land until it is overthrown by the people, in a revolution or through some other extra- constitutional event.

In that respect, all constitutions are sovereign. We swear allegiance to the Queen in the same way as the President of the United States swears his oath of office to the constitution. The hon. Member for Falkirk, West (Mr. Canavan) is right to say that the constitution of the United States explicitly acknowledges the sovereignty of the people, but the British constitution operates in such a way as implicity to acknowledge the sovereignty of the people, as the laws of this country are made in Parliament--they cannot be made without at least the indirect consent of the people.

The Queen is at the heart of our constitution. Indeed, the question at the heart of the Bill is, "Who are the people?" The Claim of Right is inherently nationalist, not because it sets the people against the Westminster Parliament--that dualism does not exist--but because it sets the Scottish people against the peoples of the rest of the United Kingdom.

It is interesting to note that the only individuals elected to this Parliament who refuse to swear an oath acknowledging the sovereignty of Her Majesty are Sinn Fein Members, who cannot take their seats. That exposes their real intention: up to now, they have wanted to overthrow the constitutional order in which they refuse to participate.

The Bill assumes that the seats of those who refuse to take the oath of allegiance will fall vacant. That allows the dangerous possibility that those who refuse to swear allegiance to the democratic constitution of this Union, by swearing allegiance to the Queen, may be repeatedly unseated and re-elected. That is a flaw in the Bill. We should have a system whereby people who refuse to swear allegiance to Her Majesty are prevented from taking their seats, but those seats are not available to be contested unless they resign.

The Secretary of State and his colleagues will tell us that the Claim of Right need not be a nationalistic claim, and that that is demonstrated by the fact that the Scottish people voted for a Scottish Parliament in a Unionist settlement. That is the premise on which all Unionists will seek to build in the future but, as the amendments demonstrate, that view is not universally held by those who are likely to take part in the Scottish Parliament.

In the final analysis, although sovereignty can technically be legislated for, power flows where it will, and in a constitution in which sovereignty derives from the people, the process and flux of politics will determine whether the Scottish people will regard the continuing sovereignty of this Parliament as legitimate or whether the new legal supremacy of Parliament will become an empty shell. The amendments could make Parliament's sovereignty a supremacy that it dare not exercise in defiance of the Scottish Parliament.

For the Union to continue to work--for Holyrood and Westminster to operate effectively together--the Scottish Parliament will need to acknowledge the sovereignty of this Parliament, which is reaffirmed by clause 27(7), but by signing the Claim of Right Ministers have created an expectation of something different. The logic of clause 27(7) is allegiance to the Crown but, by supping with nationalism and aiding and abetting its resentments, Ministers have given credibility to the suggestion that sovereignty permanently lies elsewhere.

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If the Claim of Right was right for the Scottish Constitutional Convention when the Secretary of State signed it, why is it not right for the oath of allegiance in the Bill? The answer is that the Claim of Right is not compatible with this Parliament's sovereignty or with the Unionism that Ministers claim to espouse.


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