“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.

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