Some Observations on the Draft Scottish Constitution

The Scottish Government has unveiled their proposed Scottish Independence Bill, which will serve as the country’s interim Constitution if Scots vote for independence in September. It’s definitely worth a read: in many ways, the document seems to be a conscious repudiation of British tradition.

For example, section 2 states that the Scottish people are sovereign. In the United Kingdom, sovereignty rests with the Queen-in-Parliament. The constitutional theorist A. V. Dicey summed up the British situation as follows:

The principle of Parliamentary sovereignty mean neither more nor less than this, namely that [the Queen-in-Parliament] has, under the English constitution, the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament (Dicey, 37-38).

That definition still holds true today, with one caveat. Section 4 of the Human Rights Act 1998 gives the courts the power to issue a ‘declaration of incompatibility’ when they feel that legislation is inconsistent with the European Convention of Human Rights. However, the law remains in force until Parliament says otherwise (section 4(6)(a) of the Human Rights Act explicitly states that a declaration “does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given”). The SNP argues that the doctrine of parliamentary sovereignty is an English invention that need not apply to Scotland (this isn’t really a novel assertion–the Lord President of the Court of Session said pretty much the same thing back in 1953 when giving judgment in MacCormick v. Lord Advocate). That being said, it remains to be seen whether Scottish judges will be able to strike down legislation that conflicts with the Constitution. The Scottish Government has ruled that out in the immediate aftermath of independence, but that might change once the permanent Constitution is in place (Scottish Government, 63).

Flag of Scotland. By Cayetano - (Scotland flag  Uploaded by Smooth_O) [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons

Flag of Scotland. By Cayetano – (Scotland flag Uploaded by Smooth_O) [CC-BY-SA-2.0 (http://creativecommons.org/licenses/by-sa/2.0)%5D, via Wikimedia Commons

The interim Constitution is also unabashedly Europhile. Not only does it explicitly incorporate EU law into the domestic corpus, but sections 24(2) and 26(2) subordinate Scots law to EU law. In the United Kingdom, EU law is only binding because the European Communities Act 1972 says so. However, that Act can be repealed or amended at any time, whereas Scotland and Europe will be bound together ab initio. What makes these provisions so interesting is that there is some uncertainty as to whether or not Scotland will be part of the EU upon independence (here’s a quick summary of the issues). The SNP says yes, but the President of the European Commission says no. Perhaps these provisions are part of a negotiating ploy; emphasizing Scotland’s Europhilia might seem like the best way to gain the support of the other member states in any accession negotiations.

There are also a number of ‘aspirational’ stipulations in the interim Constitution. Section 29 requires the Scottish government and public authorities to “safeguard, support and promote the wellbeing of the children,” while section 31 pledges them to protect the environment. Not only that, but they will also be committed to conserving biodiversity and tackling climate change. As laudable as these goals may be in theory, they might be difficult to enforce in practice, and a cynic might be tempted to dismiss them as a sop to left-leaning voters.

One area where the interim Constitution is surprisingly traditional is the monarchy. Although the SNP has strong undercurrents of republicanism, they have pledged to keep the Queen as Head of State after independence. Section 9 gives effect to that promise and sets up a hereditary succession. It also provides that the Queen will “enjoy all the rights, powers and privileges which, according to law, attached to the Crown in Scotland immediately before Independence Day.”

Frankly, I am a bit surprised by this approach. Given the SNP’s ambivalence toward the Crown, I thought they might take a page from Papua New Guinea’s book and explicitly state that the Queen must act in accordance with the government’s advice (see section 82(2) of the Constitution of Papua New Guinea). Instead, they’ve studiously avoided a narrow definition of royal power. However, it may be significant that section 11 vests executive power in the Scottish government rather than the Queen. This is a bit unusual–in many Commonwealth Realms, executive power is formally vested in the Sovereign (see, for example, the Constitutions of AustraliaCanada, and Jamaica). The explanatory notes don’t address this issue, so it’s hard to say why the SNP chose to go this route, though it wouldn’t surprise me if it was a deliberate attempt to de-emphasize the role of the Crown.

The present proposals are, of course, just a draft. The SNP is soliciting feedback from the public, and the bill may well be amended as it goes through the Scottish Parliament. Unlike the US Constitution, the interim Constitution will be enacted through ordinary legislative means. This means that the Constitution could theoretically be amended or repealed like any other Act of the Scottish Parliament, though the Scottish government claims that it will have a “distinct status as a constitutional statute” (Scottish Government, 61). But in the absence of any sort of formal entrenchment provision, its status will be a matter of convention rather than law. However, the Scottish government might ask the Scottish Parliament to agree to a resolution stating that the interim Constitution is sacrosanct until the permanent Constitution is in place (Scottish Government, 62). While this wouldn’t have any legal force, it might have enough moral authority to give the interim Constitution a measure of security.

The permanent Constitution will be the work of a Constitutional Convention appointed pursuant to an Act of the Scottish Parliament (section 33). Once it’s drafted, it will presumably be put to the Scottish people, at which point the interim arrangements will be abrogated (Scottish Government, 64).

Works Referenced

Dicey, A. V. The Introduction to the Study of the Law of the Constitution. London: Macmillan and Company, 1915.

Scottish Government. The Scottish Independence Bill: A Consultation on an Interim Constitution for Scotland. Edinburgh: The Scottish Government, 2014.

 

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One Response to Some Observations on the Draft Scottish Constitution

  1. Pingback: What is the SNP’s Vision for the Monarchy? | A Venerable Puzzle

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