Political and Constitutional Reform CommitteeWritten evidence submitted by Canon Kenyon Wright CBE

Scotland and UK Constitutional Change

“Our constitution is wearing out” Lord Hailsham

1. A Constitutional Convention for the UK, which addresses the central issue of the constitutional relationships between the component nations, must begin by recognising (and seeking to resolve) the fundamental conflict between the Scottish and the English (now British) constitutional understanding and traditions.

2. To do this, it might be helpful to identify the distinctive elements that created the Scottish Constitutional Convention, and that in the end led to its success.

3. The most important of these was the traditional Scottish understanding of popular sovereignty, expressed dramatically at the very first session in 1989 when all members solemnly lined up to sign the “Claim of Right for Scotland”. This affirmed “the sovereign right of the Scottish people to determine the form of government best suited to their needs”. Our Convention did not begin with a political aim. It began with a fundamental constitutional principle, and all our work flowed from that.

4. Perhaps not all who signed that day (or who reaffirmed it in the Scottish Parliament earlier this year) fully recognised the implicit rejection of the claim of Westminster, or more accurately, of “the Crown in Parliament” to absolute sovereignty.

5. We reaffirmed a theme that runs through Scottish history—from the Declaration of Arbroath to the two previous Claims of Right of 1689 and 1842, both of which were in different ways a rejection of the Crown’s or Parliament’s right to impose on Scotland. Lord President Cooper, probably the greatest Scottish lawyer of the last century, said “The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law.

6. That principle has in practice meant the growing power of the Government and especially the Prime Minister rather than Parliament—a situation the new Scottish Parliament has explicitly renounced.

7. This principle was massively strengthened by the perception, right or wrong, that the Thatcher Government was not only imposing policies that Scotland manifestly rejected, but was seen as an attempt to impose an alien ideology. We saw what could be done by a political system which Lord Hailsham called “an elective dictatorship.

8. This combination put a strong wind in our sails.

9. The Church of Scotland Assembly in 1989 spelled this out and said we had a crisis—“a crisis more real than apparent, within the constitutional foundations of Scotland and the United Kingdom. It is real in that it involves a clear conflict between two totally opposing notions of sovereignty in the Scottish and English constitutional traditions—made apparent by the polarising tendencies in British society in the 80’s but always present and underlying. From a Scottish constitutional (and theological) perspective this English tradition of state absolutism has always been unacceptable in principle. It is now intolerable in practice. The Scottish Parliament must be built upon philosophical foundations that are more coherent and credible than the notions which underpin the existing British constitution.”

10. On this basis, the Convention’s final Report in 1995 said the coming of a Scottish Parliament “will usher in a way of politics that is radically different from the rituals of Westminster; more participative, more creative, less needlessly confrontational—a culture of openness.…..much more than a mere institutional adjustment. It is a means not an end.”

A Constitutional Convention for the UK?

11. There is a strong case for a Constitutional Convention for the UK. There are I believe a number of crucial questions which Scotland brings to the debate.

12. The main roadblock to real change is the unwritten constitutional doctrine of the absolute sovereignty of the Crown in Parliament, with the enormous powers of patronage and royal prerogatives which this gives in reality to the Prime Minister.

13. It is of course true that in practice alternative bases of more or less secure power have been created in the smaller nations, but the legal right of Westminster to have the last word remains. Indeed it may be used to shape the coming Referendum.

14. Any Convention must therefore have the mandate to look at the constitutional foundations of each of the nations, and at alternative models of relationship.

This would include such issues as:

the need for a written constitution defining the relationships of the four nations;

the principle of subsidiarity and real sharing of power;

the meaning of Autonomy within a reformed Union;

the anomaly of the “West Lothian question”;

the case for an English Parliament and government;

the case for a Federal, Quasi Federal or Confederal system;

the role and shape of the UK Parliament in any new system; and

the role and shape of a second chamber in a new UK.

15. This inquiry is a real opportunity for some bold and imaginative thinking about the future of a Union in need of reform. Let us not be too timid or afraid to think innovatively.

May 2012

Prepared 2nd April 2013