“We the people of Scotland do ordain and establish this constitution”

Last week the Scottish Government published the Scottish Independence Bill outlining the constitutional arrangements for an independent Scotland. Iain McLean explores the significance of the new emphasis on ‘people’s sovereignty’ and considers the strengths and weaknesses of the draft interim constitution.

Image credit: stuant63

Image credit: stuant63

Where the Scottish Government’s independence manifesto Scotland’s Future was long and evasive, the Scottish Independence Bill and accompanying notes published on June 16 are short and to the point. This is the best document on independence yet released by the Scottish Government. The bill, which the Scottish Government proposes as the first draft constitution should Scots vote Yes in September, is no longer than that masterpiece of Enlightenment lucidity, the Constitution of the USA. It also shares a deep intellectual history with the US Constitution and Bill of Rights.

The bill opens with ‘In Scotland, the people are sovereign’ (cl. 2). It thus junks parliamentary sovereignty. The Explanatory Notes make obeisance to the Declaration of Arbroath (1320) and the Claim of Right Act 1689. However, this is really the work of the late Lord President Cooper (MacCormick v. Lord Advocate 1953 SC 396 at 411), and the late Neil MacCormick, son of the 1953 petitioner. Lord Cooper was responsible for destroying the intellectual coherence of parliamentary sovereignty and Sir Neil drew the attention of his SNP colleagues (and everybody else) to the importance of that. The UK’s leading jurist of his generation, he was an SNP MEP and drafted an earlier Scottish constitution for the party.

Parliamentary sovereignty, as the ruling doctrine of English constitutionalism, was most fully ideologised by the Victorian jurist A. V. Dicey. I have explained elsewhere, Dicey’s constitutionalism is incoherent in its own terms. He believed on the one hand that Parliament may do anything except bind its successor and on the other that the Acts of Union 1706-7 and 1800 were fundamental legislation. If Parliament cannot bind its successor, then constitutional statutes have no higher standing than – to take Dicey’s example – the Dentists Act 1878.

However, from 1885 until 1915 Dicey was a ‘fanatic’ (his own word) defender of the Union with Ireland, which was dissolved in 1921. Therefore he maintained, in contradiction to his own doctrine of parliamentary sovereignty, that Irish Home Rule should not proceed unless submitted to the people of England at a referendum. It is not clear whether Dicey’s England included Ireland. Despite his partisanship on this issue, the view that some statutes are more fundamental than others has been gaining traction – including among both English and Scots judges cited in the Explanatory Notes (Sir John Laws and Lord Hope).

Furthermore, although the draft constitution says that the people of Scotland would be sovereign in the event of a Yes vote, it also sets limits to that sovereignty. This bill constitutionalises the Human Rights Act 1998. Scots Law may therefore not be inconsistent with the rights enshrined in the European Convention of Human Rights. It must also not contravene EU law, another restriction on sovereignty.

The protection of the European Convention on Human Rights would in one sense just continue the present situation. Westminster has bound the parliaments of Scotland, Wales, and Northern Ireland (but not itself) never to act in a way that is incompatible with the Convention. If the answer in Scotland is Yes, it will be interesting to see how the occasionally tetchy dialogue between popular sovereignty and protection of human rights evolves. No doubt one of the first actions of an independent Scottish Parliament will be to give voting rights to prisoners, as demanded by the European human rights court. Or will it?

Constitution-nerds may be surprised that the draft bill contains neither a provision to entrench itself, nor a provision for its own amendment. On the first point, the Scottish Government apparently trusts the growing recognition by judges that constitutional statutes in some sense trump ordinary statutes, even when they do not explicitly say so. On the second, it proposes to appoint an independent constitutional convention after a Yes vote to draft a substantive constitution. This idea is obviously derived from similar efforts elsewhere including some Canadian provinces and Ireland.

There are some loose ends and some nonsense in the draft constitution. In terms of loose ends, it states that it will be up to the Scottish Parliament to repeal the (Scottish) Act of Union with England 1707 and up to the Westminster Parliament to repeal the English Act of Union with Scotland 1706. This both oversimplifies and minimises the role of the Westminster Parliament after a Yes vote. Lord Hope (among others) have set out Westminster’s responsibilities, although the Explanatory Notes chose not to quote on this subject. As to nonsense, there are some eye-catching but meaningless and non-justiciable clauses. For example, clauses 29 to 31 demand the protection of children (but not adults); islands (but not the mainland), and biodiversity. These may seem like cheap talk now, but how is the Court of Session to deal with a future case in which (to put it crudely) a group of NIMBYs opposed to a housing development say it is unconstitutional because it damages biodiversity? Or a deputation from Gigha says that a government policy has treated Campbeltown more favourably than them?

Despite these (I think, relatively minor) flaws, this is a generally impressive document. Unionists as well as nationalists should welcome it.

Iain McLean is Professor of Politics, Oxford University. He is co-author of Scotland’s Choices (2nd edition 2014) and co-editor of Enlightening the Constitutional Debate. These works, together with his earlier What’s Wrong with the British Constitution? explore the themes of this post in more detail.

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