BEFORE taking their seats all newly elected MSPs must take the oath or, for non deists the affirmation, of allegiance to the Queen “I (name) do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth, Her Heirs and Successors, according to Law. So help me God.”
At Thursday’s oath taking session in Holyrood many of the newly elected MSPs proudly proclaimed that their first loyalty is to the Sovereign People of Scotland not to the Queen. Indeed the First Minister herself prefaced her oath taking by stating that the SNP “pledges loyalty to the people of Scotland in line with the Scottish constitutional tradition of the sovereignty of the people”.
These assertions of the sovereignty of the Scots People were a powerful symbol by MSPs but it was a transitory one. I would like to propose a means by which the Scottish Parliament can publicly and permanently assert that sovereignty by a means that would cost nothing and which is entirely within the control of Holyrood: preface all Acts of the Scottish Parliament with an assertion of that sovereignty by means of an appropriately worded “enactment formula.” An enactment formula is a “poetic flourish” at the beginning of statute saying who has “enacted” or made the Act and which also, ideally, represents the political and legal position of that legislature.
Scotland is unusual in that its statutes carry no such words of enactment. The Westminster Parliament, the assemblies of Northern Ireland and Wales, and indeed most other legislatures around the world use some form of enactment clause at the beginning of their Acts, and so it is a strange anomaly that the Scottish Parliament does not. Such a formula would literally nothing but would make a strong statement about Scotland and its Parliament.
All Westminster statutes are prefaced with the words: “BE IT ENACTED by the Queen’s [King’s] most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—”
Obviously this feudal formulation would be entirely inappropriate for Holyrood statutes but a wording which puts the emphasis firmly on the people not the monarch can easily be drafted. This can be seen in the following other enactment formulae:
Northern Ireland Assembly: “BE IT ENACTED by being passed by the Northern Ireland Assembly and assented to by Her [His] Majesty as follows.”
National Assembly for Wales: “Having been passed by the National Assembly for Wales and having received the assent of Her Majesty, it is enacted as follows.”
New York Legislature: “The People of the State of New York, represented in Senate and Assembly, do enact as follows.”
My suggestion is that all Scottish Acts of Parliament should be preceded by an enactment clause which proclaims the sovereignty of the people in the following words:
The Sovereign People of Scotland, as represented by their elected Members in the Scottish Parliament presently assembled in Edinburgh, and with the assent of the Queen’s most Gracious Majesty, does hereby enact, statute and ordain as law: –
The reason I propose that particular wording is that it takes the union enactment clauses of the pre Union Scots Parliaments such as “Our Soveraigne Lord and Lady The King and Queens Majesties….Doe with advice and consent of the Estates of Parliament Statute and Ordaine..” and turns it on its head by stressing that but today it is the Scots People that are sovereign, not the monarch. The Royal Assent which is purely nominal is placed at the end of the formula unlike the Westminster formula which begins with the monarch.
This new enactment formula could be adopted by a simple resolution of the Scottish Parliament and would send a strong message that the people of Scotland are sovereign.