In a post originally published at the Scottish Constitutional Futures Forum, Aileen McHarg responds to the draft constitutional bill.
In her speech at Edinburgh University launching the draft Scottish Independence Bill, Nicola Sturgeon claimed that ‘the prospect of a Constitutional Convention and a written constitution are, in themselves, positive reasons for voting Yes.’ Many intending Yes voters will agree with that statement, viewing independence not only as a way of addressing Scotland’s perceived democratic deficit, but also as an opportunity for democratic renewal.
The adoption of a permanent written constitution is, however, a post-independence project. In the interim, Scotland will require a set of constitutional arrangements to enable it to function as an independent state. The draft Bill, which will only be introduced into the Scottish Parliament in the event of a Yes vote (and will require a preliminary transfer of power from Westminster), is thus intended to provide the necessary ‘constitutional platform’ for independence, as well as to impose a binding obligation on the Scottish Parliament to establish a Constitutional Convention to begin drafting a permanent constitution as soon as possible after independence.
The key problem for the interim constitution is one of legitimacy. While the permanent constitution is to be adopted through a widely participative and deliberative process, independent of both Government and Parliament, the interim constitution is the initiative of the Scottish Government alone. Although the draft Bill is subject to consultation, it will be enacted as an ordinary Act of the Scottish Parliament (ASP). There are two dangers here. One is that the interim constitution is a politically partisan document which lacks broad acceptance. This is particularly problematic if it takes longer than expected to agree the permanent constitution or, indeed, if agreement ultimately proves impossible. The other is that the interim constitution conditions the content of the permanent constitution through a process of path dependency, thus in practice blunting the radical democratic edge of the Constitutional Convention. Both considerations counsel in favour of conservativism in the interim constitution, providing as much institutional and legal continuity with Scotland’s pre-independence constitutional arrangements as possible.
How well, then, does the draft Bill measure up?
There is indeed a good deal of continuity. Scotland will remain a parliamentary democracy, with legislative power vested in the Scottish Parliament and executive power in the Scottish Government, accountable to the Parliament and through the Parliament to the people (ss 7(2), 10, 11, and 12). It will also still be a constitutional monarchy, with the Queen as head of state, and all existing legal rights, powers and privileges of the Crown in Scotland preserved intact (ss 7(1) and 9). Autonomous, elected local government will remain in place (s 17), and the continued independence of the judiciary and continued commitment to the rule of law are declared (ss 13 and 15). The European Convention on Human Rights will still apply in Scots law and will be extended to cover all legislative and executive functions on the higher standard currently applied to devolved functions under the Scotland Act, rather than the lower standard applicable to reserved functions under the Human Rights Act (ss 26 and 27). On the assumption that Scotland will be a member of the European Union, the supremacy of EU law is also explicitly accepted (s 24(2)).
There is, of course, some necessary innovation to provide Scotland with the full legal and institutional apparatus of an independent state. The draft Bill thus provides for the concept of Scottish citizenship (s 18), establishes a Scottish civil service (s 16), and ends appeals to the UK Supreme Court (s 14). It also makes provision for the conduct of international affairs and foreign policy, membership of international organisations, and ratification and incorporation of international agreements (ss 19 – 22).
Aspect of the draft Bill do, however, go beyond what is strictly necessary. For instance, section 2 declares that ‘In Scotland, the people are sovereign.’ Arguably, this is not an innovation, but rather reflects a long-standing Scottish constitutional tradition which survived the Union with England. The difficulty, though, is in understanding what the principle of popular sovereignty means when divorced from the specific claims of a right to self-determination and the rejection of Parliamentary sovereignty which gave it potency in the context of the Union. Section 3 does attempt to give it content, asserting (in addition to the right to self-determination) that ‘[a]ll State power and authority … 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.’ But how exactly this is to be reconciled with other aspects of the constitution, such as judicial independence, the continued acceptance of the royal prerogative as a source of executive power, or the supremacy of EU law remains to be seen.
More problematically, the Bill also contains a number of substantive value commitments. These include: an obligation on the Scottish Government to pursue negotiations for nuclear disarmament and the removal of nuclear weapons from Scottish territory (s 23); constitutionalisation of the principle of equality (s 28); a duty to promote children’s wellbeing (s 29); protection for island communities (s 30); the right to a healthy environment (s 31); and a duty to use natural resources sustainably (s 32). Whether a written constitution should contain substantive commitments of this kind is controversial, and they are particularly objectionable when it is not clear that there is broad public support for their inclusion.
However, the significance of this objection is perhaps reduced by a deeper continuity in the proposed interim constitution. As already noted, the Bill will be enacted as an ordinary ASP, and the consultation paper accompanying the Bill makes clear that it will not have any entrenched legal status. Nor, indeed, will Scotland’s interim constitution be a codified one. Rather, the Bill will take its place as one of a number of constitutional statutes, alongside a revised Scotland Act, the Human Rights Act, the Representation of the People Acts and others. As such, it will be amendable by subsequent Parliaments by simple majority, although amendment will have to be express, not merely implied, and there will be a certification process adopted to ensure that amendments are properly identified and considered.
Some people may object that this provides insufficient security for Scotland’s post-independence constitutional arrangements. It is, however, a valid constitutional model, which should not be rejected out of hand. An important task for the Constitutional Convention in drafting the permanent constitution will be to consider how best to reconcile the competing virtues of constitutional certainty and flexibility; in other words, how best to prevent abuse of power without unduly constraining future generations and excessively empowering unelected judges. In the meantime it is clear that, in constitutional terms, independence for Scotland will be as much evolutionary as revolutionary.