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DEBATE PACK

Number 2016-0158, 2 September 2016

Claim of Right for Scotland

By Sarah Priddy

Summary Debate Pack prepared ahead of the Westminster Hall debate initiated by Patrick Grady on the Claim of Right for Scotland on Tuesday 6 September 2016 at 2.30pm.

Subject Specialist: Paul Bowers

Contents 1. Background to the

1989 Claim of Right 2

2. Parliamentary material 4

3. Press Articles 6

4. Further reading and useful links 9

Appendix - Signatories to the 1989 Claim of Right

The House of Commons Library prepares a briefing in hard copy and/or online for most non-legislative debates in the Chamber and Westminster Hall other than half-hour debates. Debate Packs are produced quickly after the announcement of parliamentary business. They are intended to provide a summary or overview of the issue being debated and identify relevant briefings and useful documents, including press and parliamentary material. More detailed briefing can be prepared for Members on request to the Library.

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1. Background to the 1989 Claim of Right

The following is taken from the Commons Library briefing on Citizens’ Assemblies and Constitutional Conventions. CBP 07143, 18 July 2016

1.1 Scottish Constitutional Convention 1989 The establishment of a constitutional convention had been a recommendation of the 1988 report, A Claim of Right for Scotland. The report recommended that a convention should be established to draw up a scheme for a Scottish Assembly or Parliament. In January 1989, a cross-party meeting was held to consider proposals for a convention.

The constitutional convention for Scotland, which was grass roots led rather than established by Government, held its first meeting on 30 March 1989, with Canon Kenyon Wright as the Executive Chairman, and reaffirmed the Claim of Right. The Claim of Right stated that the will of the Scottish people was sovereign. Members of the Scottish Constitutional Convention included the Scottish Labour Party, the Scottish Liberal Democrats, the Scottish Democratic Left, the Orkney and Shetland Movement, the Scottish Green Party, the Scottish Trades Union Congress, Regional, District and Island Councils, and the Campaign for a Scottish Parliament. Membership also included the main Scottish Churches, the Federation of Small Businesses, ethnic minority representatives and the Scottish Women's Forum.

At the initial cross party meeting on establishing a convention, the Scottish National Party had expressed their concern that the convention would not consider the issue of Scottish independence, and later withdrew. The Conservative Party had already made it clear that they would take no part in the proposed convention, as they were not in favour of a devolved Parliament for Scotland.

As the Political and Constitutional Reform Committee noted in its report, Do we need a constitutional convention for the UK?, the Scottish Constitutional Convention’s report in 1995 formed the basis of proposals which were brought forward in a White Paper, Scotland’s Parliament, by the Government in 1997. Those proposals received considerable support in a referendum on 11 September 1997, with 74% of those voting favouring the Government's proposals for a Scottish Parliament. The Committee stated that:

23. The Scottish Constitutional Convention was highly successful in achieving its aim. The Convention had a clearly defined remit of making the case for an Assembly or Parliament for Scotland.

Claim of Right for Scotland 3

Nonetheless, the example of the Scottish Constitutional Convention shows that there is a need for clarity about the questions that the convention would seek to answer. Although the Scottish Constitutional Convention did not initially have support from all the political parties, support for its proposals grew over the course of the Convention’s six years of deliberations.

1.2 Text of the1989 Claim of Right We, gathered as the Scottish Constitutional Convention, 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.

We further declare and pledge that our actions and deliberations shall be directed to the following ends:

To agree a scheme for an Assembly or Parliament for Scotland;

To mobilise Scottish opinion and ensure the approval of the Scottish people for that scheme; and

To assert the right of the Scottish people to secure implementation of that scheme.

A copy of the 1989 Claim of Right and signatories is added as an appendix at the back of this document.

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2. Parliamentary material

2.1 UK Parliament - Debates Westminster Hall debate on EU Exit: Devolved Governments

HC Deb 21 July 2016

On the motion: That this House has considered devolved governments and negotiations on the UK leaving the EU.

Westminster Hall debate on the renegotiation of EU Membership (Devolved Administrations)

HC Deb 10 Nov 2015 cc 66-84

On the motion: That this House has considered the role of devolved administrations in UK renegotiation of EU membership

2.2 UK Parliament – Select Committee Political and Constitutional Reform Committee Do we need a constitutional convention for the UK?

HC 371 2012-13

The Political and Constitutional Reform Committee conducted an inquiry into whether there is a need for a constitutional convention for the UK. The inquiry looked at how a convention might allow a debate on the future of the Union as a whole, rather than piecemeal through a focus on specific issues or nations.

Written evidence submitted by Professor James Mitchell (CC 21) Professor James Mitchell is Head of the School of Government and Public Policy, University of Strathclyde. [Extract] 11. The Scottish Constitutional Convention (SCC) is often referred to in debates in the UK. The SCC was founded on a ‘Claim of Right’ which proved less certain than its founders hoped. [6] While participants signed up to the Claim, it was a political rather than justiciable claim to ‘sovereignty of the Scottish people’. The SCC was an important non-authoritative body for cross- and non-party deliberation on aspects of devolution. There was a conscious effort to ensure that in form and in substantive conclusions it would be an open, participatory form of decision-making. The Convention highlights both the strengths and limitations of open, participatory constitutionalism.

2.3 Scottish Parliament – written question Question on the Claim of Rights Act 1689

2 October 2014 (S4W-22401)

Jean Urquhart (Highlands and Islands) (Independent): To ask the Scottish Government whether the provisions of the Claim of Rights Act 1689 in relation to the right to appeal to the monarch against perceived

Claim of Right for Scotland 5

judicial injustice remain in force and, if not, what information it has on when these were revoked and for what reason.

Kenny MacAskill: The provisions of the Claim of Right Act 1689 in relation to the right to appeal to the monarch against perceived judicial injustice remain in force to the extent that the right is now exercisable via appeal to the United Kingdom Supreme Court, in accordance with the usual rules of court, and civil procedure.

The Claim of Right Act 1689 provided a right for a person to appeal a decision of the Court of Session to the Parliament of Scotland (the ‘monarch in Parliament’) and not necessarily directly to the sovereign as an individual. Following the Acts of Union and the abolition of the Scottish Parliament, this right was effectively transferred to the House of Lords, meaning that decisions of the Court of Session could be appealed to the House of Lords. In 2009 the appellate jurisdiction of the House of Lords was transferred to the new United Kingdom Supreme Court, including appeals from the Court of Session. The right contained in the 1689 Act has evolved into the right of appeal to the Supreme Court and is not a parallel right of appeal alongside the normal rules of civil procedure.

The Scottish Government’s understanding is that the 1689 Act concerned proceedings of the Court of Session and does not entitle an individual to challenge a conviction or sentence of a Scottish criminal court by petitioning the sovereign or the government on Her Majesty’s behalf. The House of Lords never assumed appellate jurisdiction for criminal cases following the Union. The mechanism for challenging a conviction or sentence of a criminal court is by appeal in accordance with the normal rules of criminal procedure. An individual who remains dissatisfied with the outcome of that appeal can ask the Scottish Criminal Cases Review Commission to consider investigating whether a miscarriage of justice has occurred, which can in certain circumstances result in the case being referred back to the appeal court.

2.4 Scottish Parliament - Debate Debate on the Claim of Right

26 January 2012, c5805

Nicola Sturgeon: Presiding officer, the motion for this afternoon’s debate is deliberately simple. It states that “This Parliament acknowledges the sovereign right of the Scottish people to determine the form of Government best suited to their needs, and declares and pledges that in all its actions and deliberations their interests shall be paramount.”

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3. Press Articles Nicola Sturgeon launches new debate on Scottish independence New Statesman 2 September 2016

Replace House of Lords with elected senate, urges Gordon Brown Ex-PM says Brexit vote means UK should rethink constitutional structures to weaken case for Scottish independence The Guardian, Severin Carrell 29 August 2016 In a speech at the Edinburgh book festival, written in collaboration with Scottish Labour leaders and policy staff, Brown said Holyrood should be given powers currently controlled by the EU. Those could include control over all territorial fisheries, agriculture and social rights, as well as the European convention on human rights and EU academic programmes such as Erasmus. At the same time, a UK-wide constitutional convention was needed to investigate new structures, including a UK senate for the nations and English regions. Sturgeon hits back after chancellor rules out separate EU status for Scotland Scottish Herald 14 July 2016 NICOLA Sturgeon has hit back at the new Chancellor after he dismissed the prospect of Scotland negotiating a special deal with the EU. Philip Hammond, the former Foreign Secretary who was appointed Chancellor by Theresa May on Wednesday, said that the decision to quit the bloc was taken by the UK as a whole and would now be implemented. SNP threaten break-up of the UK as Nicola Sturgeon says second independence vote is now 'highly likely' The Telegraph 24 June 2016 Nicola Sturgeon has thrown the future of the United Kingdom into doubt by saying a second independence referendum is “highly likely” in the next two-and-a-half years following UK’s vote to leave the EU. The power entrusted to MSPs can be an untrammelled boon for all Glasgow Herald, Canon Kenyon Wright 12 May 2016 The Claim of Right for Scotland maintained "the sovereign right of the Scottish people to determine the form of government best suited to their needs". This was signed by all members of the Constitutional Convention at its first meeting in March 1989, and reaffirmed in the Scottish Parliament

Claim of Right for Scotland 7

in January 2012, with the support of all parties except the Conservatives. Kenyon Wright: this vote is not just an event...it's part of a dynamic process Sunday Herald 14 September When the Constitutional Convention that planned the Scottish Parliament met for the first time in 1989, it started significantly, not with a political goal, but with a solemn declaration called “A Claim of Right for Scotland”, that recognised the sovereignty of the people. I have often wondered how many of those who signed that Claim really understood they were rejecting the absolute sovereignty of the “Crown in Parliament”. Either Parliament in Westminster has the final say, or the people of Scotland do. It cannot be both. Devo architect Kenyon Wright: we now need interdependent independence Scottish Herald 11 September 2014 A key architect of Scottish devolution will call for "interdependent independence" - political independence for Holyrood in a more mature relationship with the British Isles.

Recognition of sovereignty need not threaten UK state

Scottish Herald

23 December 2013

The Scottish referendum is about popular sovereignty, not identity

The Guardian, Elliot Bulmer

31 March 2013

The core of the constitutionalist case – from the Levellers' Agreement of the People of 1647 to the Scottish Claim of Right of 1989 – is that the people, not parliament, have the final word. There should be fundamental rules, covering the principles and institutions of government and the rights of citizens that "we the people" make, and by which elected representatives are bound.

Alex Salmond entices left and lawyers with promise of new rights in a written constitution

The Guardian, Severin Carrell

17 January 2013

Alex Salmond has suggested that independence could see Scotland's citizens given substantial new constitutional and legal rights, embedded

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in a new written constitution. It is a proposal which excites lawyers, and again opens a further front in the referendum battle.

SNP hail 1989 Claim of Right BBC News, David Torrence 26 Jan 2012 The SNP hails Scotland's historic 1989 Claim of Right, which helped pave the way for devolution, despite previously refusing to sign it. The claim backed the case for a Scottish Parliament and was backed by a range of politicians, civic groups and businesses. Deputy First Minister Nicola Sturgeon called on all parties to "recommit" to its principles.

Claim of Right for Scotland 9

4. Further reading and useful links

4.1 Commons Library briefings

Scotland: Public spending and revenue

Public spending and taxation in Scotland was a hotly debated issue in the run up to the Scottish independence referendum, and has remained so since. A range of statistics exist on the subject: this note summarises what these say and how they are measured.

25 August 2016

Devolution of financial powers to the Scottish Parliament: recent developments

This paper discusses the proposals made by the Smith Commission - in its report published in November 2014 - for further devolution of power to the Scottish Government, in relation to taxation, funding and borrowing, and the Government's plans for their implementation.

1 March 2016

Scotland Bill 2015-16: Committee stage report

04 Nov 2015

Scotland Bill 2015-16

This Briefing Note has been prepared for the Second Reading of the Scotland Bill 2015-16, which will take place on 8 June 2015.

04 Jun 2015

Scotland Bill: Welfare & Employment Support (Bill 3 of 2015-16)

This briefing provides detailed information on the welfare and employment support provisions in the Scotland Bill. The Bill is scheduled to receive its Second Reading on 8 June 2015. With the exception of a new power to top-up reserved benefits, there are no substantive differences between the welfare and employment provisions in the Bill and the previously published draft clauses.

4 June 2015

Further devolution of powers to Scotland: Universal Credit housing element and payment arrangements

This note explains the Smith Commission's proposals and the Draft Scotland Clauses in relation to Universal Credit (UC), including the housing costs element (currently Housing Benefit). As it stands, UC will remain a reserved benefit but the Scottish Parliament would be given

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the power to vary the housing costs element of UC, and powers to vary the manner and frequency of UC payments.

6 February 2015

Scotland the referendum and devolution: Selected timeline

A selected timeline of events and significant publications leading up to the referendum in Scotland on 18 September 2014 and to some of the planned follow-up events.

13 November 2014

4.2 Scottish Government Scotland's Future : Your Guide to an Independent Scotland

Scottish Government, November 26, 2013

Constitutional Convention’s Campaign

Scottish Government Yearbook 1992, Harry Conroy

4.3 Electoral Reform Society Democracy Max - An enquiry into the future of Scottish Democracy: The Sovereignty of the People

ERS, March 2013

DEBATE PACK 2016-0158 2 September 2016

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