In recent months, your blogger has been thinking about the use of “shall” in legislation. It is an interesting question, one with rather greater implications than might at first be thought. But the following post has been provoked by conversation with your blogger’s colleague, Hector MacQueen, leading to consultation of a fascinating article on legislative drafting by another colleague, Eric Clive.
The recent commemorations of the establishment of the Scottish Parliament in 1999 have led your blogger to reflect on the terms of s.1.1 of the Scotland Act, 1998, ch. 46, which states: “There shall be a Scottish Parliament”. Probably because the late Donald Dewar made much play with this phrase in his speech opening the Parliament in 1999, it has become rather associated with him in the public mind, as the merest search of the internet will reveal. Indeed it is carved on the plinth of his statue in Glasgow. It is seen as a resounding, powerful, even national, statement of intent, marking the event and the hoped-for development of a new politics. You shall go to the ball. Rather more prosaically, however, one can observe that the drafter of the relevant provision of the 1998 Act has simply copied the opening words of the (repealed) Scotland Act of 1978 ch. 51, which, in its s.1.1, stated: “There shall be a Scottish Assembly.” Indeed there are many other parallels between the two acts. Of course the 1978 Act was repealed, since the referendum that followed, perhaps reflecting greater and more sophisticated thought about the significance of major constitutional change than has been displayed in planning subsequent adore recent referendums, required more than a simple majority of votes cast to initiate dramatic constitutional reform. But, basically, as much of the 1978 act as could be salvaged was transplanted into that of 1998. One can in fact trace this formulation further back, if without the dramatic simplicity in the 1978 and 1998 Acts. Thus the Government of Ireland Act 1920, ch. 67, s.1.1 states there “shall be established for Southern Ireland a Parliament … and there shall be established for Northern Ireland a Parliament ….” I have not searched further.
But there are many other strange twists to the myths that now surround the Scottish Parliament. One that your blogger particularly enjoys involves the mace presented to the Scottish Parliament by Her Majesty the Queen. Engraved on it are the words “Wisdom”, “Justice”, “Compassion”, and “Integrity” . Apparently these are now the “shared values” of the Scottish people. Who would have known? If you doubt this is a common view, search the web! They are of course aspirational words that are easy to endorse; but that is because, of course, they mean very little without a context, and are as empty as any other advertising slogan. Who does not like Mom and apple pie, as the Americans (and now all anglophones) say? These four words apparently now constitute the values, to give one example, that underpin the controversial Scottish Curriculum for Excellence. One member of the Scottish Parliament, Jenny Gilruth, has described them as the four founding principles of the Parliament.
All this high-minded stuff is fair enough if perhaps tending to the rather worthy pomposity that one associates with the clergyman or clergywoman at speech day at school. Again one suspects they have entered the popular consciousness (if they have) because Donald Dewar’s remarkable speech also made much of them. But what is interesting is that these “shared values” of the Scottish people or “four founding principles of the Parliament” were in fact made up, or perhaps one should say chosen, by Michael Lloyd, the Salisbury-born silversmith who made the mace. Had he had the space, he also wanted to put on “courage”. See https://uruisg.blogspot.com/2012/01/truth-about-wisdom-justice-compassion.html
Your blogger is primarily an eighteenth century scholar. He shares that century’s love of paradox and unintended consequences. Of course hard historical fact does not challenge the values individuals have put on these words; but it is as well always to remember their origins. One set of words was copied by a drafter form an earlier act; the others were made up by an English-born silversmith and, rather to his surprise, simply accepted. It is amusing to note that the website of the Scottish Parliament states: “Engraved on the head of the mace are the words ‘Wisdom, Justice, Compassion and Integrity’ – these are a reference to the ideals that the people of Scotland aspire to for their Members of Parliament.” It is good to know. https://www.parliament.scot/visitandlearn/24496.aspx
Your blogger did think of calling this entry “Of mace and men”, but wiser counsel prevailed and he thought the better of it.