Defining the Scottish citizenry on the eve of devolution

Between the 1707 Act of Union with England and the re-establishment of the Scottish Parliament in 1999, the rules of acquisition of Scottish nationality have not been formally defined nor translated into law. Prior to the Union of the Crowns in 1603, whereby King James VI of Scotland became King James I of England as well, Scottish subjecthood was acquired at birth, in accordance with the medieval norm stating that everyone born on the soil controlled by the monarch was subject to his rule.²¹⁰ In 1608, the court was asked to determine whether Robert Calvin, a man born in Scotland before the Union of the Crowns and now resident in England, shall be considered as an alien, hence not subject to the “proper rights, laws, and statutes of the Kingdom of

210. In Scotland, this rule was embodied in the Latin proverb infra ligeantiam domini Regis regni sui Scot.

179 England.”²¹¹ Sir Edward Coke, then Lord Chief Justice of the Common Pleas, concluded that “every subject that is born out of the extent and reach of the laws of England cannot by judgment of those laws be a natural subject to the King.”²¹² As a result, Robert Calvin was denied the right to own property in England, a privilege then reserved to English subjects. Yet the decision also enshrined into law that individuals born after the Union either in Scotland or England would be subject to the rules of the same monarch. By contrast with most continental states (Weil 2001), this decision remained unchallenged, thus setting a path for the acquisition of British nationality, and later citizenship, through jus soli, as opposed to jus sanguinis.

But apart from this admittedly distant episode,²¹³ the formal boundaries of Scottish nationality were not systematically discussed until the eve of devolution.²¹⁴ As shown in Chapter III, the long road to home rule enabled Scottish elites to put aside their differences in defence of a common if poorly-defined territorial interest, underpinned by broad political and popular support for the re-establishment of a democratically-elected Scottish Parliament. The creation of the Scottish office in 1885, together with the permanence of a distinct parliamentary group for Scottish Westminster constituencies, consolidated a territorially-defined administrative and electoral arena in which issues of direct concern to the residents of Scotland could be discussed, thus keeping alive a frame of reference maintaining a ‘banal’ and self-reproducing territorial identity. However, by adding a ‘democratic tier’ to administrative devolution (Mitchell 2006), the Scotland Act 1998²¹⁵ raised the need to define the boundaries of the electoral franchise, an issue extensively debated in the House of Commons in June 1997.

Ultimately, the decision was made to use the registry of local government electors for both the referendum on devolution and subsequent elections for membership of the

211. Calvin's Case 7 Coke Report 1a, 77 ER 377.

212. Ibid.

213. Although it occurred almost four centuries ago, the Calvin case is well-known and influential in the jus solis jurisprudence, especially as most European countries adopted the jus sanguinis principle following the French Revolution, jus soli being associated with the Ancien Régime. The 1805 Napoleon civil code provides a telling example, although Napoleon himself was opposed to the reform of the French nationality code which he saw as draining away resources for warfare (Weil 2001). This however, shall not hide the fact that Catholics and Jews were formally excluded from British nationality until 1778.

214. The issue was hardly mentioned during the parliamentary debates preceding the first referendum over devolution in 1979.

215. Until 1985, UK legislation did not provide expatriates with external voting rights. Besides, there were no local voting rights for EU citizens before 1997 either. Accordingly the issue was not systematically discussed prior to the 1979 referendum on devolution. Under the Scotland Act 1978, the persons entitled to vote as electors at the elections for the Scottish Assembly would have been those who had their names on the register of parliamentary electors, plus peers (Jo Shaw 2009a: 14).

180 Scottish Parliament.²¹⁶ In consequence, EU citizens resident in Scotland, who under the provisions of the 1992 Maastricht treaty are entitled to vote at local elections in any member states, were given the right to have their say in the ‘settled will of the Scottish people’, unlike Scots-born emigrants no longer registered at an address within the constituency. While prior to the 2004 eastward enlargement the proportion of EU citizens living in Scotland was marginal, this highly symbolic decision considerably strengthened the national movements’ civic credentials, by giving English-born and EU-born immigrants alike the opportunity to become ‘political Scots’ (Kiely et al.

2005).

On the one hand, Labour’s support for using the local government franchise and electoral register as the basis for determining who could vote and stand for elections expressed an intuition that “devolution mark[ed] the extension of what constitutes ‘the local’ within UK constitutional politics” (Shaw 2009a: 11). In the run-up to the 1979 referendum, the party failed to overcome its internal divisions over Scotland’s constitutional future. While some saw devolution as the best way to contain the rise of the SNP, others, mainly among the industrial wing, fiercely opposed it on the grounds that nationalism undermined UK-wide class solidarity (Keating & Jones 1985, Mitchell 2009). Hence, 1997 New Labour, committed not to repeat the same mistakes as Old Labour buried a few years earlier in the turmoil of Tony Blair’s ascension, carefully emptied the devolution settlement of its nationalist connotations. Instead, emphasis was placed on the democratic benefits that bringing decision-making processes closer to the people would entail. By contrast, the Tories’ stance was in tune with their traditional conception of the Union. For the Conservative MP Peter Luff, this decision meant no less than the “government intending to give a Greek waiter temporarily working in a backstreet café in Edinburgh the right to vote in an election about Scotland’s future, but denying it to a Scottish journalist working here in Westminster for the Scotsman.”²¹⁷ But the party, worn down after seventeen consecutive years in power, was no longer able to mobilize its traditional Scottish electorate. As it did not return a single MP in Scotland at the 1997 general elections, its capacity to alter the ongoing reform had

216. The Scotland 1998 Act does not comprise a clear legal definition of Scottish citizenship holders. However, article 11.1 states that “the persons entitled to vote as electors at an election for membership of the Parliament are those who would be entitled to vote as electors at a local government election in an electoral area falling wholly or partly within the constituency, and are registered in the register of local government electors at an address within the constituency.”

217. House of Common Hansard Debates. June 17, 1997, vol 295 cc247-79.

181 reached an all time low. As for the SNP, Alex Salmond’s reply to Peter Luff’s intervention captures well how his stance was in fact intertwined with the party’s territorializing strategy: “Is [the Hon. Gentleman] incapable of understanding why, as leader of the Scottish National Party, I am perfectly comfortable with the idea of people from England, Wales, France, the rest of Europe, or Timbuktu, who are resident in Scotland and contribute to the community there, voting on the future of the country? Is he totally incapable of understanding why residents who contribute to a community should have rights of determination, regardless of where they are from?”²¹⁸