Westminster has no supreme power – it can't silence Scotland's voice

Schedule Five is the “Reserved List” – the list of things the Scottish Parliament cannot do. Such a simple bill, if enacted, would overturn the recent decision of the UK Supreme Court prohibiting the Scottish Government from ­holding an independence referendum.

The proposal did not even get over its first procedural hurdle in the House of Commons. Only 42 members voted for it, and 265 against. I know: 42 is a comfortable majority of 59 – the number of members Scotland sends to ­Westminster.

So how was it defeated? Easily: by the votes of members representing other ­countries.

Despite not being elected by or responsible to the people of Scotland, these members seem to think they have a right to vote on Scotland’s ­future and to deny Scotland’s ­self-determination.

'No one gave Westminster absolute power' 

This raises some very old questions: “By what authority doest thou these things? And who gave thee this authority?”

The answer is not obvious. No one gave ­Westminster sovereign or absolute power. There is no founding moment one can point to, no ­exercise of public constituent power by which the sovereign people lawfully delegated ­legislative authority to Parliament.

If the people never gave Parliament the ­authority in the first place, whence do they get it? The only answer is that they got it, bit by bit, from the Crown. The Crown got its power ­initially by conquest. It seems strange to say it, but the English, for all their pretence to world power, are – constitutionally speaking – a ­conquered and occupied people.

This is not necessarily an anti-monarchical ­argument. People founding a state and ­framing a constitution can choose to establish a ­hereditary head of state if they want to. It is, however, an argument against ­unconstitutional ­monarchy, or indeed unconstitutional ­government in any form.

This is why Thomas Paine – one of the few Englishmen to have truly understood his ­country – said that “government without ­constitution is power without right”.

Here we come to the essential question of Scottish independence: Where does sovereignty lie?

One might accept that legal sovereignty (as a matter of brute fact, because the courts will recognise it) over the whole British Empire – the inner rump of “home nations” that remains – rests in the imperial parliament at ­Westminster. But what of political sovereignty?

Time to claim our rights 

Even the most conservative English legal ­theorists – following AV Dicey – acknowledge that the legal sovereignty of Parliament is but a shadow cast by the real, living, political ­sovereignty of the people.

The problem with this distinction, however, is that it has no way of enforcing itself. There is no way for the political sovereign to resist the usurpations of the legal sovereign.

What is missing is a constitution, by which the people establish, and at the same time limit and define, their political institutions. In the absence of such a constitution, power is not ­delegated, but surrendered. The Westminster Parliament claims absolute authority.

Westminster can strip us of our European ­citizenship, tear up human rights, and even restrict the ability to vote through grossly partisan voter suppression laws, with no restraint or recourse. The old moral, conventional, limits are no longer respected. It can do whatever a government with a well-whipped majority wants it to do.

Remarkably, most English jurists and scholars seem not to see the problem with that arrangement.

If there is any merit in Labour’s recent constitutional proposals it is that they ­recognise that this is, indeed, a problem. That is the ­beginning of understanding.

However, this English view of ­parliamentary sovereignty has long been challenged by a ­different, distinctly democratic, Scottish understanding of popular sovereignty.

This was best articulated in the 1989 Claim of Right, but it has much deeper origins in Scottish constitutional thought.

Popular sovereignty in the sense that the Claim of Right endorses it does not eliminate the need for parliamentary government.

It ­simply says that we have the right to frame a system of government best suited to our needs. Popular sovereignty is constitution-making power.

One could say that the 2014 referendum consented to Westminster exercising governing power over Scotland.

If so, we, the people of Scotland, delegated authority to institutions of the United Kingdom on trust. That trust has been violated – chiefly, but not only, by ­Brexit.

The sovereign, constitution-making power, which was neither delegated nor surrendered in 2014, must now be exercised.

How to do that is a question we are all debating. Whatever way we find must be peaceful, lawful and democratic.

My point here is simply that the we have a strong, good, long-established and widely accepted claim to popular sovereignty, and that exercising that claim – forming a new Scottish constitution as the foundation of our new state – must be the focus of our efforts.