Tuesday, 17 June 2014

Beware the Draft Constitution

Consultation opened yesterday
Yesterday, the Scottish Government released a Draft version of the Interim Constitution for an Independent Scotland. The idea seems to be that it will take the form of a piece of legislation, passed by the Scottish Parliament, serving as a holding arrangement to facilitate the continued operation of governmental matters until a more comprehensive constitution can be drafted by a Constitutional Convention and, one presumes, ratified by a plebiscite.

I won't beat about the bush; this document is a bit of a mess in places and sorely needs rewritten. It is poorly drafted, filled with ambiguities, potential contradictions, and provisions that do not appear to serve any obvious constitutional or legal function whatsoever. There are also changes in certain areas that should be a cause for concern for the transitional period for which this constitution is in force.

I deal with it in broadly chronological order.

Clause 1 - Independence

This section attempts to do three things. First, it seeks to declare that Scotland will become independent on Independence Day. Second, that Independence Day shall be determined by a resolution of the Scottish Parliament, and thirdly that the Scottish Parliament and Government shall assume full competence in their respective areas. It appears to be confusing what a piece of Westminster legislation would need to do with what needs to be part of the Scottish Parliament's activities.

In order to be able to pass this Bill in the first place, there will have to be some enabling legislation from Westminster. The Scottish Parliament is not competent unilaterally to declare independence, being a body whose powers depend upon the Scotland Act. It reserves these constitutional matters to the Westminster Parliament.

Such a Bill will likely take a form, which is similar to the Canada Act 1982. It did two things. The first is actually contained in section 2. It provided that after the passing of the Act, the United Kingdom Parliament shall have no power to make laws in respect of Canada. The second, in section 1, was to give effect to the Constitution Act of Canada, which was contained in a Schedule at the end of that Act.

The Constitution Act 1982 itself was a product of the Canadian Parliament. It provided (in Art 59) for the coming into effect of the new Canadian constitutional order on the signing of a proclamation by the monarch.

The structural approach to the issues dealt with in clause 1 seem to be backwards. Subclause 3 is unnecessary; it is the inverse of that which would be dealt with expressly by the enabling Westminster legislation and is dealt with in clauses 10 and 11. Subclauses 1 and 2 deal with the same thing in an excessively wordy and clumsy way. If they want independence to be "given effect to" by a resolution of the Scottish Parliament, fine. That merely requires a provision in Part II of the Bill saying that the Constitution shall have effect on the passing of a resolution of the Scottish Parliament. That provision already exists: clause 36. This is an unnecessary mess.

Clauses 2-3 - Sovereignty

Nicola Sturgeon has made a big deal out of the fact that this constitution declares the Scottish people to be "sovereign". This is a popular sentiment that often gets bandied about in Scottish constitutional discourse, with grand appeals to the Declaration of Arbroath and the like. In her remarks, she seems to be conflating "being a democracy" with "the people being sovereign". She says "Sovereignty means the people of Scotland always getting the government we vote for to govern our country the way we want".

That isn't sovereignty in the sense we talk about Parliamentary sovereignty, the thing she wants to contrast it with and what clause 3 actually deals with. That's just being a democracy. The United Kingdom is already a democracy, albeit an imperfect one. What she is saying is that the privileged unit, or what constitutes "the people" for the purpose of democracy will become the Scottish electorate instead of the British electorate. It doesn't take Sherlock to work out that that is going to be the case anyway in the event of independence. Clauses 2 and 3 do nothing of substance to embody that change in anything more than a symbolic way.

Sovereignty of the people is contrasted with the much misunderstood notion of the "sovereignty of Parliament" in UK constitutional discourse. But what does "sovereignty of the people" actually mean, according to this Constitution?

You would think that it means that the people would be given a privileged relationship relative to the constitution? That's what it is taken to mean in other countries with constitutions that declare sovereignty to be in the nation, and to confer some sort of symbolic right to resistance against tyrannical government or to recognise a "constituent power" to amend the constitution. As an idea, it must surely mean the people have the right to amend or replace the constitutional framework if it becomes contrary to their will.

But no. It turns out the sovereignty we're going to enjoy is something rather more modest. Sure, we get lip-service to this grand ideal in clause 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."

And even clause 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."

These grandiose claims are, then heavily qualified. We are told in clause 3(3) that:

"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."

And in clause 3(4) that:

"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."

These two sections mean, frankly, the opposite of the people being sovereign. What they say is that the people can only have their will expressed through the constitution itself, and that, by the way, international treaties also take supremacy.

What this means in practice is not that the people of Scotland would be sovereign. On the contrary, it makes the provisions of the constitution, and treaties with other states and bodies, the ultimate source of power in Scotland. It serves, along with later provisions, simply to refuse to imitate the "legislative supremacy" presently enjoyed by the Westminster Parliament. This means that if the Scottish Parliament passes laws in accordance with the democratic wishes of the electorate, which go against the Constitution, they will now be struck down by the Court of Session or High Court of Justiciary.

Constitutional oversight is an important function. Many onlookers will think restricting what Parliament can do with ordinary legislation is a good thing. I am one of them. Nevertheless, this provision transfers powers from the legislature, containing the representatives of the people, to the courts, a bunch of (mostly) white, old, privately educated, men; not from Parliament or the elites to the people.

Clause 4 - Interim Constitution

The desire is made clear here that the Constitution contained in Part II of this Draft Bill is intended only to be temporary. This seems perfectly logical, and allows a much bigger debate with stakeholder groups in a cross-party affair at a later date to produce something of greater permanence. I have, however, one significant concern. Nowhere in this Draft Constitution is there a provision outlining the process or authority of any body to amend the interim constitution. This is important for two reasons.

Firstly, it is necessary if the permanent constitution is properly to supersede it in the fullness of time. Secondly, if the Constitutional Convention for the permanent constitution is unsuccessful in being ratified, for whatever reason, we need a mechanism which allows for the amendment of the interim constitution to make any changes, from time to time, as may be necessary. This appears to have been an oversight on the part of the Scottish Government, who rather seem to be taking for granted that whatever is produced by a Constitutional Convention will in fact be agreed to by the Scottish people.

Clauses 5-8 - The State

These are largely perfunctory provisions. Clause 5 states, in possibly the least controversial manner possible, that Scotland is to be called Scotland. Clause 6 purports to determine the territory of Scotland:

"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."

This is somewhat confusing. Scotland's territory is not, as such, "defined" in international law, where borders are determined as between extant states, before Independence Day. There are boundaries that have been chosen for numerous domestic purposes in UK law, but this is different. What constitutes "Scotland's territorial sea" in particular will not be absolutely clear until the negotiations with the UK Government have reached a satisfactory conclusion. This needs to be revisited.

Clauses 7 and 8 are bog standard fare but not especially illuminating, declaring us to be a constitutional monarchy, a parliamentary democracy, to have a flag, and to let the Scottish Parliament decide if we should have a national anthem.

Clause 9 - The Head of State

A small thing, and it could just be me, but I think this clause has been very poorly drafted. It is not entirely clear whether the intention is to retain the formal Union of the Crowns, to purport to restore the old Scottish Crown, or to institute a new Crown. Rather than saying that "Her Majesty Queen Elizabeth is to be Head of State, as Queen" ("is to be": yuck) and "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" there should be an attempt here to stipulate the line of succession in terms that are readily accessible.

This does not necessarily mean that the line of succession has to be spelt-out at length here. It could choose to refer either to the (English) Act of Settlement 1701, or to Article II of the Union with England Act/Treaty of Union to preserve the existing line of succession, or to some accord mutually agreed between Scotland and rUK in advance of the split.

It has been suggested (H/T Adam Tomkins) that clause 9(3) is incompatible with clause 3(2) above, given that the privileges of the Crown are ultimately derived from the position of the monarch as sovereign. This would appear to be incompatible with the assertion that all power comes from the people, unless we are now to understand that crown privileges are to be understood as being derived from the people, an exercise in constitutional acrobatics if ever there was one...

Finally, I'm not sure whether it's an act of mischief to omit the Roman numerals after the Head of State's name, paying homage to the infamous case of MacCormick v Lord Advocate!

Clauses 10-11 - The Legislature and Executive

These provisions are fairly uncontroversial if stubbornly resistant to being aesthetically pleasing. It should be manifestly obvious that the legislature and executive's powers are "subject to the constitution". For some bizarre reason, the draft seems intent on emphasising the continuity of the Scottish Parliament and Government from the devolved institutions. It seems unnecessary to say that these bodies "continue" to have the powers of, respectively, law-making and administration. As a drafting point I would replace "continue to" with "shall".

Clause 12 - State Accountability

I have to confess I am at a loss as to what the actual point of this constitutional provision is. It just says that the Scottish Parliament is accountable to the people and that the Scottish Government is accountable to the Scottish Parliament. This is just a trite restatement of parliamentary democracy. This wasn't thought necessary in Canada's constitutional statutes, and it feels unnecessary here. There is no reason why this is necessary to ensure that those principles continue to operate, whether in practice or by enforcement through judicial action taken under the Constitution.

Clauses 13-15 - Juridical

This is where things get really interesting, and for me, worrying. Clauses 13 and 15 are uncontroversial. A commitment to an independent judiciary and a wishy washy reference to the rule of law continuing to apply. My principal objection is to clause 14.

Since the 18th century, litigants in Scotland in a civil case have had recourse to the House of Lords (and later, the UK Supreme Court) as a domestic court of last resort when appealing a decision of the Inner House of the Court of Session. This provided an important level of independence of approach to issues at the final stage of appeal or review, distinct from both the Sheriff Courts and the Court of Session, and has helped to ensure justice is both done and seen to be done. With the advent of devolution, the Judicial Committee of the Privy Council (and later the UK Supreme Court) were given supervisory jurisdiction over criminal trials insofar as matters of constitutional importance were engaged (such as European Convention rights). This provided important distance from the Sheriff Courts and from the High Court of Justiciary to provide a more critical approach towards matters particularly of procedural justice.

Clause 14 proposes that the jurisdiction of the UK Supreme Court shall cease entirely. This is in and of itself understandable. However, the Scottish Government do not propose to replace the jurisdiction with that either of a Supreme or a Constitutional Court. This will have several negative effects. For one, it will lead either to the forced retirement or exile of Scotland's two most senior jurists, Lord Reed and Lord Hodge. More importantly, however, it will make it more difficult for those wronged by our main appeal courts to achieve the appropriate redress. The UK Supreme Court made a number of important interventions on questions of Scots law being incompatible with the European Convention on Human Rights, most notably on the question of access to legal assistance when being interviewed by the police under caution.

There is a risk that not having a court supervising the jurisdiction of the High Court and Court of Session, that rather more Scottish cases will end up having to go to Strasbourg, and the European Court of Human Rights, for a determination, in effect replacing a domestic court of last resort with an international one. In addition to the expense associated with defending cases in Strasbourg for the public purse, this will significantly alter justice in a way that risks both disempowering Scottish courts to reach solutions which reflect the nuances and needs of the Scottish justice system and deny some people proper access to domestic justice at all.

In any case, I remain uncomfortable with the notion that we could end up with two Supreme Courts, potentially arriving at different conclusions on the interpretation of, say, our interpretation of the same Convention right, without a court of final resort within the same jurisdiction to resolve that disagreement. In a system where the legislature will now be explicitly limited in a way the Westminster legislature is not, a Constitutional court for, among other things, asylum and immigration cases and anti-terrorism, a definitive power capable of conclusively striking down primary legislation should have some distance from the ordinary work of the Scottish courts system.

The retort, as with much else of this Draft, will no doubt be that Parliament can still discuss this draft and that in any case this is only an interim constitution. I find it difficult, however, once the precedent has been set re-establishing the High Court and Inner House as the Supreme Courts of Scotland, to see the Constitutional Convention insisting that this be changed again. The inertia of the new system will make calls for such a reform struggle to gain traction.

Clause 16 - The Civil Service

This clause is uncontroversial, and simply provides that the civil service will be a thing, that they've to be honest and impartial and objective. I'm not sure that it necessarily needs to be in the constitution, and indeed the clause delegates the regulation of the civil service to ordinary legislation. The future descriptive wording "Further provision about the Scottish civil service is to be made by Act of the Scottish Parliament." is not very constitutional in its framing and could be better expressed.

Clause 17 - Local Government

This is another one of those provisions of questionable worth given what it actually says. It aims to maintain the status quo, for now, with local councils and re-iterate the cycle on which their elections are to be held. The nomenclature seems, somewhat bizarrely, not to conform to the actual provisions of the Local Government etc. (Scotland) Act 1994, which refers to "local authority areas". Instead we get references to "local councils" and "local areas". It is sloppy language like this, which rather suggests that the drafting of this document has been slap-dash. The provision which maintains that "local councils have autonomy over the carrying out of their functions" seems to me to be unnecessary, unless local authorities are now to be able to rely upon this constitutional provision to get judicial decrees blocking interference in specific instances by the Scottish Government. Surely these protections already exist and are adequate in the local government legislation?

Clause 18 and 25 - Citizenship

I have deliberately brought these two clauses together because they relate to citizenship in one way or another. The first sets out the conditions for Scottish citizenship, both those who inherit it automatically and those who are eligible to claim it. It provides that the particulars of this may be qualified by Act of Parliament, but I would simply raise the issue of dual citizenship and the extent to which they have considered the consequences for someone presently resident in Scotland, holding UK citizenship and the nationality of another state, and in particular whether the automatic provision could lead to them being forced to surrender one of their other two nationalities. Clearly the Scottish Constitution cannot be responsible for the continuing provisions of British nationality law on independence, but it seems premature to be discussing an automatic citizenship route before these matters are settled.

As for clause 25, I'm left flabbergasted. It claims, in essence, that if you are a Scottish citizen on independence, you are also an EU citizen under Art 20.1 of the TFEU. There are a number of problems with this. Firstly, only the EU may confer EU citizenship. Scotland can no more "confer" EU citizenship on someone than it can confer Ghanian citizenship on them. Secondly, the Treaty confers citizenship on nationals of member-states. Scotland is not a member-state of the European Union, and will have to negotiate to a point of membership. Even if we assume that an expedited agreement is reached in advance of independence, this provision in the Constitution is totally unnecessary. Those rights accrue to member-state nationals irrespective of whether or not national law explicitly provides for it. This is a superfluous clause. Get rid of it.

Clause 19-22 - International Agreements

Clause 19 is a puff-piece saying that Scotland will "observe", "promote" and "respect" international law and make lots of friends and be peace-loving. Unless the intention is to allow citizens to impeach Government officials for breaking international law, I see no point in this provision. The Scottish Government appear not to have considered the full implications of this. In their explanatory notes they merely state that this will "give [the UN Charter] further domestic effect" without explaining what further effect that is.

Clause 20 is one of the clauses that comes into force in advance of the Scottish Government's proposed "Independence Day". This appears in practice to be a provision intended to make sure the executive has the competence to engage in international negotiations to ensure continuity of effect of international relations to the greatest extent possible. Quite why this needs to be in the Constitution, however, given what is actually needed there is Westminster enabling legislation before independence, and given after independence these powers are inherent to the executive, escapes me.

Clause 21 concerns the ratification of treaties signed by the Government by Parliament. The provision is not especially controversial, though I would point out this is further evidence of ugly drafting. clause 21(2) "That does not apply to" should be nowhere near any statute ever.

Clause 22 re-iterates that Scotland will adopt a dualist approach to international law in much the same way as the UK does presently. It prompts the question, however, precisely why they think they need to give domestic effect to Art I of the UN Charter in clause 19, given its nebulous content.

Clause 23 - Nuclear Disarmament

This is clearly a popular policy among many who support independence and many who do not. I must confess, however, that I'm not sure that this is appropriate for, in particular, the interim constitution. The Scottish Government do not have an explicit mandate for nuclear disarmament. This interim constitution will be binding on whoever wins the 2016 Holyrood elections, and that might not be the SNP. This provision compels the government, constitutionally, to negotiate the removal of Trident from Scotland. This seems presumptuous, unnecessary and unhelpful with respect to any negotiations about the future of the UK's nuclear armed submarines in the event of Scottish independence. Particularly given there is no provision in this constitution to amend this constitution, this could, hypothetically, be binding another party's government to an SNP policy not voted on by the Scottish electorate.

Clause 24 - EU Law

This one is simple. It replicates the European Communities Act and the constraints that have in any case existed on the Holyrood institutions in relation to European Union law. I am not sure this should be or needs to be in the Constitution but it does no material harm.

Clause 26-27 - Human Rights

This one is interesting. The intention here is to extend the status of the European Convention on Human Rights to all matters covered by the Scottish Parliament. As alluded to earlier, this categorically ends Parliamentary sovereignty. The absence of, as the UK has in section 4 of the Human Rights Act, a domestic buffer in the form of the "declaration of incompatibility" means that an Act of the Scottish Parliament could be struck down by a Strasbourg ruling. It does not appear entirely clear, when taken together with clause 34, what effect this would have on Westminster legislation passed on reserved matters such as immigration and asylum or anti-terrorism provisions, which may have or would have been merely subject to a "declaration of incompatibility" but domestically lawful. This section also neglects to outline how judges should determine whether legislation is in fact compatible with the Convention. The Human Rights Act (s3) and the Scotland Act (s101) currently adopt two different tests: which if either functions under this Constitution?

Clause 28-29 - Equality and Children

The first of these essentially entrenches the principles of the Equality Act into the Constitution. Seems fair enough. The second is essentially one expression of the "welfare principle" with respect to Children, which requires the well-being of children to be considered in all public functions pertinent to them. I doubt it will make any significant difference beyond symbolism, though it may have an impact on immigration decision-making where the statutory provisions are presently very contentious.

Clause 30 - Island Communities

A symbolic nod to the Scottish Government having to "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". A noble goal, but unless this is intended in some way to be judicially enforceable with respect to infrastructure projects and the like, something I doubt, this is just window-dressing and of questionable necessity in an interim constitution.

Clause 31-32 - The Environment and Natural Resources

The first clause is largely window-dressing, stating empty and meaningless, judicially unenforceable "right to live in a healthy environment" and requiring the Scottish Government and public authorities, in some vague and indeterminate way to address green issues.

The second says that Scotland's natural resources "must" be used in a sustainable way and which provides some form of vague, nondescript benefit to the people of Scotland. Quite what purpose this serves escapes me: can we sue the First Minister if he authorises below cost or too speedy drilling in the North Sea? This is endemic of vague and meaningless constitutional provisions in this document. It's all very well to say that Constitutions should outline the aspirations for a nation or a society, but is it really necessary to clog-up an interim constitution with these things?

Clause 33 - Permanent Constitution

This provision is important insofar as it sets out the obligations for the setting up of a Constitutional Convention, and the issues that the Act of Parliament doing this must address. Mundane things from composition to funding and structure are required to be dealt with. What is interesting is that this Act must be passed "as soon as possible" (whatever that means). Unless an Act were to be pushed through by the Scottish Government between March 2016 and May 2016, the legislation for this Convention would have to be passed by the first elected Parliament of Scotland. This would at least assuage any fears that the SNP were seeking to gerrymander that process.

Clause 34-36 - Transition and Miscellaneous

As mentioned earlier, clause 34 provides for continuity of effect of domestic law post independence, which deals with most Westminster statutes. We see the awful "That is subject to the constitution" non-sequitur which should be redrafted in sub-clause (2) but otherwise this is straightforward. Given the importance of the Human Rights Act and the integral impact of its functions on legislation, I think we need clearer guidance as to the intended transitional effects, if any of it, and particularly the tests it applies to statutory interpretation.

Clause 35 is the repeal of the Union with England Act. I don't see why this needs to be done by the Scottish Parliament. This means transferring to the Scottish Parliament the competence to repeal an Act of a Parliament which ceased to exist in 1707, which has no legal continuity with Holyrood. Westminster will, for clarity's sake, have to repeal the English Parliament's Union with Scotland Act anyway, so it might as well be repealed at a Westminster level under the same enabling legislation.

Clause 36 relates to when the different provisions come into effect. As mentioned earlier this somewhat negates the need for the entirety of clause 1 of this Bill.


There are some interesting and sensible ideas in this proposed interim constitution. There are some pointless and convoluted provisions in this constitution. There are some dangerous or outright undesirable provisions in this constitution. The Scottish Government clearly have not resorted to the (relatively recent) historical examples when it comes to enabling legislation to achieve their desired result. They have sought to attribute politically mundane functions of the transition most effectively dealt with at a Westminster level to Holyrood legislation, and have shoehorned in provisions of questionable worth to a permanent, never mind an interim, constitution. The weaknesses in this document are most apparent by what is not dealt with as much as what is. There are assumptions that the process towards the permanent constitution are going to yield certain results, which are far from guaranteed.

Most importantly of all, though, the Scottish Government need better draftsmen!

1 comment:

  1. Excellent analysis. I'd add two points:

    (1) To my mind, the most important omission is an amendment rule. From the supporting documentation, it appears that the Scottish Parliament, although bound by a supreme Constitution, would be able to amend that Constitution by a simple majority vote: in other words, popular sovereignty (in the sense of the reservation of the constituent power to the people as a whole) is absent, despite all the rhetoric, and parliamentary sovereignty (in the sense of constituent power being in the parliamentary majority) would continue. That makes all the other guarantees of the constitution rather fragile.

    (2) There's almost no institutional content. This is the crust with no bread; the cherry with no cake. All the 'nuts and bolts' substance of a constitution - how parliaments are elected, how judges are appointed and removed, terms of office, the independence of the electoral commission, the appointment of the auditor general, procedures for holding referendums etc. - is absent.

    Overall, I struggle to see how this interim constitution, in its current form, would do much to protect us against authoritarian backsliding, incumbent manipulation, and corruption.