The draft Scottish constitution: an amateur law nerd’s analysis

Scottish Parliament debating chamber

Scottish Parliament debating chamber

On 16th June 2014, the Scottish Government finally released a draft copy of the Scottish Independence Bill. The Bill contains a copy of the transitional constitution for an independent Scotland, which is full of interesting stuff. I’ll try to pick out what I think are the most important bits of the Bill and comment on each one. I’ve abbreviated some extracts where the content is technical or just not very interesting. Despite that, this is a very long post. Don’t feel like you have to read the whole thing!

For the impatient, here’s what I found most interesting:

  • ‘The people are sovereign’—sounds great, but doesn’t mean much
  • Parliament’s power to legislate is ‘subject to the constitution’—but it’s not clear what happens when it does something unconstitutional
  • Parliament is required to try and get nuclear weapons out of Scotland
  • In a fight between domestic and EU law, the EU always wins
  • Scots law which isn’t compatible with the ECHR is automatically ineffective
  • Most notably: there’s no indication as to how the constitution can be changed (other than by the people that are writing the permanent one)

Of course, fundamentally this document is all about votes: the referendum isn’t far away, and there are clearly clauses here that are designed to secure votes from particular people. I’ve tried to stay away from the politics as much as possible to concentrate on the law.

So let’s get stuck in to the gory detail.

Long title (or preamble)
An Act of the Scottish Parliament to provide for Scotland to become an independent State; to provide an interim constitution for Scotland to have effect from independence; to provide for the establishment of a Constitutional Convention to draw up a permanent constitution for Scotland; and for connected purposes.

It’s worth noting that this paragraph, while it indicates the general purpose of the Bill, doesn’t carry the force of law. It’s just there to give the reader a general overview of what the Bill is trying to do, but it’s neither definitive nor exhaustive.

Part 1: Independence [not part of the constitution]

1(1) On Independence Day, Scotland becomes an independent State under the constitution set out in Part 2 of this Act.
1(2) “Independence Day” is a day to be specified by resolution of the Scottish Parliament.

No surprises here. s1(2) allows the Scottish Parliament to set a date ‘by resolution’, meaning that it doesn’t have to pass any more primary legislation. A resolution is simply ‘a motion that has been agreed to by the Parliament‘; presumably a simple majority of MSPs in a single vote is enough. The blurb that came with the Bill gives this date as 24th March 2016.

1(3) From Independence Day, and subject to the constitution—
(a) the Scottish Parliament has full competence to make and modify the law of Scotland,
(b) the Scottish Government assumes full responsibility for the government of Scotland.

The key point about s1(3) is that full competence and responsibility are assumed, thereby ousting any other body which currently has those powers.

Section 1 has an introductory tone, and almost every part of it is expanded upon in the rest of the Bill.

Part 2: Constitution

2 In Scotland, the people are sovereign.

Strong words indeed! I get the feeling that the draughtsperson wanted to put this in big flashing letters at the top. Interestingly, it’s the only part of the Bill that’s quoted in the foreward to the document, so it’s clearly designed to grab the attention and imagination of the people (now the sovereigns!).

Oh, and before the nutters get hold of the dread word ‘sovereign’: this is not what it means.

3(1) In Scotland, the people have the sovereign right to self-determination and to choose freely the form in which their State is to be constituted and how they are to be governed.

In other words, nothing is set in stone: if, for example, the people want to add a second chamber to the Parliament, this section allows them to do that. It apparently grants a power to change the constitution itself (including, I suppose, this clause)… but keep reading.

3(2) All State power and authority accordingly derives from, and is subject to, the sovereign will of the people, and those exercising State power and authority are accountable for it to the people.

I suspect this will become known as ‘the accountability clause’. While it’s more a statement of principle than an enforceable law, it’s interesting to see it in black and white. However, it’s false, at least in theory: unless the Scottish Parliament is going to stop requiring Royal Assent for new legislation, the power of the state in a monarchy ultimately derives from the monarch, even if (as in the UK) the monarch’s powers are almost all controlled by Parliament.

3(3) The sovereign will of the people is expressed in the constitution and, in accordance with the constitution and laws made under it, through the people’s elected representatives, at referendums and by other means provided by law.

So this is what ‘sovereign’ really means. This clause puts paid to any idea that the people can express its will in any way it likes and expect to be obeyed. It states that this document is the will of the people, and—because legislative powers are granted by the constitution—any use of those powers must also be the will of the people. So the people might be sovereign, but they have to express their will in the prescribed manner: through their MSPs and by voting. Sound familiar?

The UK parliament is said to be sovereign in that it can make and repeal any laws it wants to. Sir Ivor Jennings famously said that Parliament could legislate to ban smoking on the streets of Paris, and thereby create a valid and enforceable statute… but good luck getting a gendarme to start nicking Parisians who light up in public. It could conceivably pass a law that makes it illegal to smile at cats, but cat-lovers everywhere would be swift to act at the next election. So Parliament is in theory sovereign, but there are all sorts of practical restrictions on its power, not least of which is the ballot box. In a functioning democracy, the people always wield a certain amount of power.

‘The people are sovereign’ is a nice statement, but in practice it doesn’t really mean anything: for ordinary citizens, democracy in an independent Scotland would look very familiar indeed. I’m not saying that’s a bad thing, but I do expect much to be made of this ‘sovereign’ point in the next few months, as if it will bring about some utopian transformation.

3(4) The sovereign will of the people is limited only by the constitution and by the obligations flowing from international agreements to which Scotland is or becomes a party on the people’s behalf, in accordance with the constitution and international law.

Note that power is limited ‘only by the constitution’ and not by other domestic legislation. An important point, as it prevents Parliament from passing legislation that can’t subsequently be repealed.

4(1) Until a written constitution for the State is agreed by or on behalf of the people of Scotland in accordance with section 33, this Part is to have effect as the constitution for Scotland.
4(2) References in this Act to “the constitution” are references to this Part.

‘Agreed by’ would presumably mean by referendum, versus ‘on behalf of’ meaning by act of Parliament. Remember that the will of the people is expressed through their MSPs, so they have the power to act on the people’s behalf without consulting them first.

‘This Part’ is Part 2, which contains sections 2 to 33. Anything outside that range is not part of the constitution.

5(1) The name of the State, by which it is to be known formally, is Scotland.
5(2) Scotland may enter into international agreements, and become a member of international organisations, in that name.

A missed opportunity to specify exactly where Scotland is!

6 In accordance with international law, the territory of Scotland continues to consist of all the land, islands, internal waters and territorial sea that formed the territory of Scotland immediately before Independence Day.

The ‘international law’ bit is important because it has implications on the extent of territorial waters and those all-important mineral rights.

7(1) Scotland is an independent, constitutional monarchy.
7(2) The form of government in Scotland is a parliamentary democracy.

The first hint that the Queen is still the Queen (and that the whole ‘sovereign’ thing is about to get complicated).

8(1) The national flag of Scotland continues to be the Saltire or Saint Andrew’s Cross.
8(2) The Scottish Parliament may choose, as it sees fit, a national anthem for Scotland.

The Parliament has that power anyway, and if it picks a song no-one likes, don’t expect to hear people singing it. Hopefully they’ll just choose ‘Flower of Scotland’ and then get on with more important things.

9(1) Her Majesty Queen Elizabeth is to be Head of State, as Queen.
9(2) Her Majesty is to be succeeded as Head of State (and as Queen or, as the case may be, King) by Her heirs and successors to the Crown according to law.
9(3) Her Majesty, and Her successors to the Crown, continue to enjoy all the rights, powers and privileges which, according to law, attached to the Crown in Scotland immediately before Independence Day.
9(4) Subsection (3) is subject to—
(a) the constitution, and
(b) provision made by Act of the Scottish Parliament.

The Queen becomes the Queen of Scotland, and her successors are still determined by the Succession to the Crown Acts 1707 and 2013.

s9(4) is important, as it allows Parliament to further limit the monarch’s powers without changing the constitution. It’s more a point of constitutional principle than anything else, but if (say) Parliament didn’t want the Queen to be able to issue Royal Pardons any more, it could simply legislate to that effect.

10(1) Legislative power to make and modify the law continues to be vested in the Scottish Parliament.
10(2) The Parliament’s power is subject to the constitution.

This is really important, and places the constitution at the centre of the new Scottish system. It appears to limit the legislative powers of Parliament in that it can’t pass a law that runs contrary to the constitution. It’s not clear what happens if Parliament purports to make such a law: the following sections on the judiciary are silent as to who is competent to adjudicate on constitutional matters. Certainly there is no authority for any other body to strike down a law or declare it invalid if it is incompatible with some constitutional provision.

This might be deliberately avoiding the point, and thereby mirroring the situation in the UK. Acts passed at Westminster have to be declared compatible with the European Convention on Human Rights (or an explanation provided why they can’t be); courts can then issue a Declaration of Incompatibility if they are unable to read the Act in a compatible way. By convention, Westminster then amends or repeals the Act, but it is not required to do so. The UK Parliament is sovereign, so it can do what it likes.

It’s inevitable that the Scottish Parliament will eventually make a law that is unconstitutional in someone’s view, and it’ll be interesting to see what procedure is adopted when that happens.

11(1) Executive power to administer and govern continues to be vested in the Scottish Government.
11(2) The Government’s power is subject to the constitution.

Almost as important at the last section, this makes the executive powers of the government—those bits that actually do things—subject to the constitution as well. Unconstitutional actions would presumably be subject to challenge by judicial review: an existing procedure where an aggrieved member of the public can challenge the lawfulness of a public body’s decision.

12(1) The Scottish Parliament and its members, as the elected representatives of the people, are accountable to the people.
12(2) The Scottish Government and its members are accountable to the Scottish Parliament and, through the Parliament as their elected representatives, to the people.

It’s difficult to know what this really means. Perhaps legislation is planned under this section that would, for example, make it possible to remove an MSP who has (to pick a random example) been repeatedly stupid.

13 All members of the judiciary are to be independent, and free from any external influence
or control, in carrying out their judicial functions.

A cornerstone of the rule of law. Politicians should have nothing to do with judicial appointments, and this will avoid a US-style supreme court (where judges are nominated and appointed by the legislature).

14(1) The Court of Session is the final court of appeal in civil matters.
14(2) The High Court of Justiciary is the final court of appeal in criminal matters.
14(3) Each of those Courts is, within its respective area of competence, the Supreme Court of Scotland.
14(4) Accordingly, no appeal lies against the decisions of the Supreme Court to any other court or tribunal, and the decisions of the Supreme Court are not subject to review by any other court or tribunal.
14(5) This section does not affect the jurisdiction of the Court of Justice of the European Union, the European Court of Human Rights or any other court or tribunal established under an international agreement to which Scotland is a party.

At the moment, Scottish courts’ decisions in civil matters can be reviewed by the Supreme Court in London; s14 removes that route of appeal. Presumably an independent Scotland would immediately become a signatory to the European Convention on Human rights, so an unhappy claimant could still appeal to Strasbourg on human rights matters. The appeal to the CJEU would, of course, depend on Scotland’s membership of the EU, which is still very much an open question.

Note that the ECtHR and the CJEU have nothing to do with one another; more specifically, EU membership is nothing to do with the EHCR. The word ‘Europe’ means different things in each case.

15(1) The principle of the rule of law continues to apply in Scotland.
15(2) Every person is accordingly subject to, and must act in accordance with, that principle.

The rule of law means that everyone, including the government, is equal before the law. It’s a hugely important principle, establishing the law of the land as the supreme arbiter of acceptable behaviour. I’m very happy to see this statement included here.

16(1) There is to be a Scottish civil service.
16(2) All members of the Scottish civil service are to act with integrity, honesty, objectivity and impartiality.
16(3) Further provision about the Scottish civil service is to be made by Act of the Scottish Parliament.

This just codifies an unwritten convention about the civil service, the most important bit being ‘impartiality’: civil servants must follow instructions even if their own opinions differ from those of their masters.

18(1) The following people automatically hold Scottish citizenship, namely— […]

I’ve deliberately snipped this section as it’s long, technical, and undoubtedly contentious. I expect it to be revised many times, and in fact it’s the only section that specifically allows Parliament to modify it.

22(1) International agreements to which Scotland is a party do not by themselves have direct effect in Scots law.
22(2) Such agreements take direct effect in Scots law only to the extent provided by Act of the Scottish Parliament.

In other words, if Scotland signs a treaty that bans pointy hats, then the hats in question will only be illegal in Scotland if Parliament itself outlaws them.

There are two important exceptions to s22(2) coming up: EU law and the ECHR.

23 The Scottish Government must pursue negotiations with a view to securing—
(a) nuclear disarmament in accordance with international law, and
(b) the safe and expeditious removal from the territory of Scotland of nuclear weapons based there.

It seems strange to me that such a specific and time-limited direction is in the constitution, but politics is politics. Note that Parliament isn’t bound to secure the weapons’ removal, only to ‘pursue negotiations’. Presumably this means that, if negotiations fail, it must continue to pursue further negotiations indefinitely. If they don’t, then it’s difficult to imagine who would enforce this clause.

24(1) Directly effective EU law forms part of Scots law.

Some types of EU law are effective and enforceable in member states without any domestic legislation being passed. This clause will exist in some form on every member state’s statute books; in the UK it’s section 2 of the European Communities Act 1972.

24(2) Scots law is of no effect so far as it is inconsistent with EU law.

In the UK, resolving a conflict between domestic and EU laws is far from straightforward. The prevailing view is that so-called ‘constitutional statutes’ cannot be overridden by EU law, whereas ‘ordinary’ ones can (Thoburn v. Sunderland City Council [2002] EWHC 195).

This clause seems to go much further, resolving all conflicts in favour of EU law. Does this include the constitution itself? As part of an Act of Parliament, the constitution would also be ‘Scots law’, so it would seem that it does. I doubt that’s what was intended.

Of course s24 is subject to Scotland’s EU membership: without it, no EU law is effective in Scotland, so these provisions are moot.

26(1) Every person has the rights and fundamental freedoms set out in the European Convention on Human Rights.
26(2) Scots law is of no effect so far as it is incompatible with those rights and fundamental freedoms.
26(3) The Scottish Government and public authorities must, in carrying out their functions, respect and comply with those rights and freedoms.

This duplicates the Human Rights Act 1998, but again goes much further. As I mentioned above, incompatible UK legislation is still effective. However, any provision of Scottish law which is incompatible with the ECHR is automatically ineffective. This implies that the courts will be able to disregard (if not strike down) Acts of Parliament on human rights grounds. I expect to see plenty of action on this front (and fewer claims to Strasbourg!).

27(1) The references in section 26 to the rights and fundamental freedoms set out in the European Convention on Human Rights are to the rights and fundamental freedoms set out in—
(a) Articles 2 to 12 and 14 of the Convention,
(b) Articles 1 to 3 of the First Protocol to the Convention, agreed at Paris on 20 March 1952,
(c) Article 1 of the Thirteenth Protocol to the Convention, agreed at Vilnius on 3 May 2001, as read with Articles 16 to 18 of the Convention.

This is the same as the UK’s existing human rights law. The excluded Article 13 is the ‘right to an effective remedy’; (b) is the rights to property, education and free elections; (c) prohibits the death penalty.

27(2) Those rights and freedoms have effect for the purposes of this Act as they have effect for the time being in relation to Scotland.

I’ll be honest: I don’t understand the point of this clause 🙂

28(1) Every person in Scotland is equal before the law and has equal entitlement to its protection and benefit.

More ‘rule of law’. The rest of this section goes into detail about respect, discrimination and equal opportunities: all good constitutional stuff, but with plenty of overlap with the ECHR.

29(1) The Scottish Government and public authorities must, in carrying out their functions, seek to safeguard, support and promote the wellbeing of the children of Scotland.
29(2) In subsection (1), “children” are people who have not attained the age of 18 years.

An interesting provision to include, especially as this is the first ballot where children aged 16 and 17 will get to vote.

30 The Scottish Government must, in carrying out its functions, take account of the particular needs of island communities, having special regard to the distinctive geographical characteristics of each of the areas inhabited by those communities.

The remote communities of Scotland have traditionally been less convinced by the devolution project, seeing Edinburgh as a distant and irrelevant seat of power with little understanding of local life (and not to mention an eight-hour journey away). In 1997, Orkney Islands was the only council to vote against tax-raising powers for the Scottish Parliament. It’s good to see this provision in writing, but it’s no surprise that island communities get a special mention in the Bill at this stage of the referendum campaign.

32 Scotland’s natural resources are to be used in a manner which is—
(a) best calculated to be sustainable, and
(b) of economic, social, environmental or other benefit to the people of Scotland.

Expect a slew of challenges as to the constitutionality of Scotland’s oil extraction activities. It’s hard to see how anything to do with oil could be sustainable.

33(1) The Scottish Parliament must, as soon as possible after Independence Day, make
provision by Act of the Parliament for the establishment of an independent Constitutional Convention to be charged with the task of drawing up a written constitution for agreement by or on behalf of the people of Scotland.
[…]
33(4) The Convention is “independent” if it, and its members and staff, are free from the direction or control of—
(a) the Scottish Government or any of its members, and
(b) the Scottish Parliament or any of its members.

As before, ‘agreement by’ means a referendum; ‘on behalf of’ means a vote in Parliament (I predict the latter). It’s laudable that the authors of the new constitution will be independent, but it’s difficult to see how this could be completely apolitical, especially if it has to be approved by Parliament. I expect this Bill will be a starting point, which is why I take such an interest in it.

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