Secession Referendums and the United Kingdom

My PhD supervisor, Prof Adam Tomkins, is the John Millar Chair of Public Law and a Conservative MSP for Glasgow. We disagree on many things. One of the things we quite radically disagree on is the proper function of referendums in the British constitution: especially secession referendums.

This disagreement can be illustrated in part by a recent statement he made on Twitter. Today the Scottish Parliament, with the support of the MSPs from the minority SNP Scottish Government and those of the Scottish Green Party, voted by a majority of 69 to 59 in favour of a motion. That motion formally requests that the Westminster Parliament should pass enabling legislation, which would authorise the Scottish Parliament to legislate for a second independence referendum. It indicates that the most suitable moment for that to take place would be between the conclusion of a proposed UK Brexit deal and the elapsing of the 2-year time period after which the UK regardless ceases to be in the EU. This would be between autumn 2018 and spring 2019.

Clarifying the disagreement

Adam takes the view that a referendum should not be held during that period. On the merits, I tentatively take the view that that timetable has no real advantage over a referendum held in 2020 or 2021, from just about anyone's perspective. Scotland will be taken out of the EU as part of the UK regardless, even if temporarily, under that timescale. Where I disagree with him is what the constitutional process should be for deciding whether and how an independence referendum should be held.

Adam's Argument

His argument is that:

"Lawful, fair secession referendums are an act of statecraft. Different countries do them differently. In the UK we do them by agreement. Here, it's not for one side unilaterally to demand a secession referendum. Timing, and other matters, must proceed by agreement. This would be the case whether or not the losing side last time had vowed that such votes are "once in a generation""

I may well be drawing unfair inferences from this argument, but I don't think it takes us very far. Purely descriptively, he is correct, in my view, that as a matter of law a referendum cannot be legislated for on Scottish independence without explicit authorisation of the Westminster Parliament. This authorisation, legally, must take place either by way of primary legislation or under a "s30 Order" relaxing the range of devolved matters of the Scottish Parliament. On this point, then, I take his side rather than that of other Scottish legal academics, who argued last time that the Scottish Parliament might not need that consent, because they disagreed that a Referendum Bill would "relate to reserved matters".

The problem here is that this legal starting point tells us almost nothing about who should be allowed to call a secession referendum and in what circumstances, which is the nub of what people are actually and substantively disagreeing about. It also does not tell us anything about what principles should govern when legislatures should be prevented from authorising those referendums. We have no answer to the normative question as to how the process ought to go forward, or not go forward. We have only a shell, unless we are to infer from the default position of the Scotland Act that the intention is to confer a veto power on the Westminster Parliament. If we believe it should have a veto, we must squarely confront the reasons that it should have that veto: what interests is this veto designed to protect, and is the veto necessary to protect those interests?

The UK "approach"

Adam maintains that constitutional practice in the UK requires that referendums on secession should only take place "by agreement". This is a strongly contestable claim and one that is wanting for precision (though the standard disclaimer of "Twitter only allows 140 characters" does of course apply). He also says that our constitutional practice is different from other countries (one example might be Canada, where provinces have no legal bar on a referendum) though this is a descriptive observation; not a normative justification.

One reason Adam's descriptive claim is contestable that he is basing this position on, specifically, the way the 2014 referendum was held for Scotland, and not on the basis of a UK-wide constitutional norm. The Scottish Parliament had no say, for example, over whether and subject to what conditions the UK's secession referendum from the European Union should be held. It is not obvious that the UK Parliament should have power over a referendum on, say, an area normally falling within the competence of a devolved legislature either: there is clearly something unspoken here that is regarded as special to secession referendums.

Any referendum on the holding of a border poll for Northern Ireland to decide whether they should become part of Ireland is not subject to intergovernmental negotiation; on the contrary, there is a legal duty on the part of the Secretary of State for Northern Ireland if it appears likely to him that a majority of those in Northern Ireland wish to leave the UK and become part of the Irish Republic. He is legally required so to act, even if the majority of those elected at Stormont are against the holding of such a poll. Although the National Assembly of Wales would also probably not have the competence to hold a secession referendum, the scheme under which it has devolved powers is completely different from that of Scotland and it does not have the same kinds of restriction.

Moreover, other territories with a UK relationship have completely different norms that govern the circumstances in which secession referendums may be held. Gibraltar and the Falklands Islands, for example, do not need Westminster consent to hold a referendum on secession. When the UK refused to recognise the Western Australia secession referendum of 1933, it was not because it had denied dominions the right to hold such plebiscites, but because the Commonwealth of Australia itself had refused Western Australia that power.

My point here is that, if we are talking about strict constitutional law, the UK has no common method of settling this question at all. The Edinburgh Agreement was merely one way of ensuring a fair and legal referendum was held; it's not the only way and it's not a norm that we have to abide by.

What norms do we have?

But if you do think it is a norm we should abide by, I think we have to be much clearer about what it involved, what norms and precedents it set and whether those norms are and ought to be legal or merely in some looser sense constitutional. We would need compelling reasons, constitutional reasons, not just political ones, to depart from the approach we took last time.

Adam says that "it's not for one side unilaterally to demand a secession referendum". But who are the "sides" here? Do we mean it's not for one Government or for one Parliament so to demand? Or do we mean political parties or caucuses? This is important if we are making normative claims about what, constitutionally, should happen. What has happened here is that the Holyrood Parliament has "demanded" the power to hold a referendum, though it is not acting "unilaterally" in the sense that it is not (yet) purporting to hold a referendum without the necessary legislative consent of the UK Parliament. The Members of the Scottish Parliament who oppose the holding of a second referendum have a different constitutional role from that of the UK Government or the Members of the UK Parliament, even though they may, many of them, share party allegiances. The question "should a referendum be held" is not the same as the question "should the Scottish Parliament be allowed to hold a referendum".

The failure to treat those questions as distinct fudges this debate considerably. It would be constitutionally consistent for Unionist parties to say that the Scottish Parliament should be allowed to decide whether or not to hold a referendum, without saying that they believe such a referendum should be held. They may look politically inconsistent if they vote for one but against another, but political deftness is not a defence for eschewing constitutional norms.

If Adam and others are of the view that the Edinburgh Agreement provides a framework or precedent for how we should proceed, we need to look behind the mere fact of disagreement about whether a referendum should be held and to look instead at what constitutional principles guided the conclusions of the UK Government last time to accept that a referendum should be permitted to be held by the Scottish Parliament. There are two clues to what drove this. The first is the acceptance of the existence of a political mandate to hold a referendum. Bluntly, we need to be clear exactly what the minimum thresholds are here. Is it sufficient for the Scottish Parliament to vote in favour of either having or exercising the power to create a constitutional duty to take steps to enable that to happen? If not, why not? And what additional expectations or qualifiers, constitutionally, are we insisting upon, and why? The second is how we establish the existence of a political mandate to give effect to other constitutional norms, particularly conventions.

Political Mandates

Constitutionally, the UK is quite opaque about what constitutes a political mandate for the purposes of constitutional conventions that guide the behaviour of legislatures and governments without courts getting involved. The Salisbury-Addison Convention refers to proposals contained in the governing party's manifesto, for instance, but it provides little if any guidance on what should happen in the event of minority or coalition government. The UK Parliament did publish a Joint Report of the Commons and Lords into constitutional conventions in October 2006, in which precisely this issue was raised, but there was disagreement as to its scope.

On one view as long as a party is able to form a government commanding the confidence of the Commons, Salisbury-Addison applies; on another it only applies to outright majority governments. The honest truth is we do not have a coherent set of principles to explain how and to what extent this convention concerning the existence of a "political mandate" transfers, if at all, from Westminster to Holyrood, given that the relationship between Commons and Lords is very different from Westminster and Holyrood. It is our "best guess" but nothing more than that. This lack of clarity means we do not have a clear answer about what to do with a minority Holyrood government on an issue, even where enough support from opposition parties is gathered to gain support behind a manifesto proposal. The UK Government opposed the holding of a Scottish referendum before 2011 in the absence of a Holyrood mandate: what was it about that Holyrood election that changed things? How do we decide that a referendum should be allowed to happen is not the same as asking how we decide whether a referendum should happen.

What must be agreed and by whom?

The Edinburgh Agreement itself did impose limits and restrictions on the manner of the exercise of a referendum power. It placed a time limit on its exercise, but did not prescribe a date. It limited it to a binary question, but did not prescribe a wording. It prescribed some of the rules and institutions applicable to the referendum, but did not set its franchise or dictate its campaigning rules.

The Edinburgh Agreement, insofar as it articulated principles at all, said that most of these matters were "for the Scottish Parliament to determine". If "agreement" is the basis on which secession referendums is to be held, and we base that principle on the constitutional practice of the Edinburgh Agreement, we must surely also take into account the constitutional practice of that agreement too? If a second referendum is to be held, we need compelling reasons other than political expediency for explaining why the UK Government should have more of a say over the terms of such a power than it did last time around.

This, in my view, means that it would be constitutionally inappropriate (though clearly not legally incompetent) for the UK Government to use its position in the UK Parliament to insist upon controlling the franchise of a second referendum. There seems to me to be no logical nexus between who may vote in the referendum and whether or not it should be held. It would also be very suspect, save to exclude ambiguity or bias, if they were to insist on a role in setting the question beyond making it a binary choice. It would in any case be logical on the Scottish Government's part for pragmatic reasons to use the same question as last time given the Electoral Commission said it was intelligible and not biased.

Timing

The only area in respect of which the UK Government is arguably on firmer ground is with respect to the timing around which a power may be exercised by the Scottish Parliament. Even then, we need a constitutional argument for why a power over timing justifies an outright veto over whether a referendum should be held at all. Put simply, what constitutional principles are protected by letting the UK Government determine when, at all, the Scottish Parliament can hold a referendum? This question is, again, not the same as the question when should the Scottish Parliament hold a referendum.

This question also breaks-down into a further inquiry: what kinds of control over the timing are necessary to protect fundamental constitutional interests? Should the UK Government be allowed, in extremis, to dictate the date? Should they be allowed to impose a time limit? Should they be allowed to impose a minimum waiting period? If there are additional concerns about a referendum taking place during a time of constitutional uncertainty (with Brexit negotiations) or that one is held too soon after a previous one, just what, in the terms Adam puts it, is it that has to be "done by agreement" between Governments and Parliaments, and what it is that has merely to be "done by agreement" between Members of the Scottish Parliament? What aspects of this process can the Scottish Parliament not be trusted to get right?

These are questions that the UK Government have not answered. If a power on restricting the timing of a referendum is not itself one that is subjected to checks and balances, it is in essence a legal veto. That is a drastic position that should demand clear constitutional justification, not just a descriptive statement of constitutional fact.

Conclusion

Saying that referendums must proceed by agreement does not tell us how they ought to proceed, and it does not tell us what constraints ought to apply, what it is reasonable to insist upon and what we should do if people cannot agree. Without those constraints referendums aren't "only held by agreement" at all. You are instead giving a partisan veto to a political institution dominated, structurally, by pro-Union politicians, and you have to provide a constitutional, not just a political, defence for that.

I do not think it is sustainable to make a constitutional argument against Holyrood being entitled to legislate for a second referendum on Sturgeon's timescale unless you reject, and reject openly, honestly and clearly, the notion that whether or not Scotland should be an independent country is ultimately a decision that should be for the Scottish people to choose or not to choose to take. It involves the rejection of the Claim of Right, the political articulation of the idea that the UK is a union constitution, not a unitary one, and that it is the sovereign right of the Scottish people to determine the form of government suited to their needs. The Scottish Parliament is the only democratically elected legislature that provides a representative basis for an expression of the will of the Scottish people.

And you know what? It's fine to reject that. But given it is the sentiment upon which much of the political legitimacy for the devolution settlement rests, good luck with that.

The Franchise after Brexit - Questions for Holyrood

Context

Yesterday evening a discussion emerged on what I suppose we should call "Scottish Twitter" about the extent to which non-British EU citizens might influence the result of any second referendum on Scottish independence. There are about 181k such citizens currently in Scotland according to the Scottish Parliamentary Information Centre (SPICe)'s data. In the last referendum, it was widely considered that this group leaned towards No, motivated in part by the fact that leaving the UK could have interrupted, even if only temporarily, Scotland's place in the European Union and would have affected the legal basis on which many of those people had come to settle in Scotland.

A little over two years on, and a great deal has changed. Scotland voted for the UK to remain in the EU, but the UK as a whole did not. We still do not have clarity as to what impact this will have on the rights of EU citizens that live here, or indeed those that had been considering moving to the UK in the future.

Neil Lovatt, a member of the Advisory Board of the political pressure group "Scotland in Union", questioned the relevance of the views of EU citizens in any future independence referendum, since "post Brexit they certainly won't" "be getting a vote".

I do not wish to delve into the politics of this statement, though my views on the franchise are, I think, fairly clear. I take a very permissive view of who should be allowed to vote, and think it a mistake to restrict it on the basis of citizenship. I take the view that any adult ordinarily resident in a relevant territory should be allowed to participate in the political process by voting in elections or referendums.

I do wish, however, to clear-up the legal terrain that underpins how the franchise works. I have written before about the franchise as it relates to prisoners, and more broadly about who gets to decide what the franchise is. It is very easy to lose sight of why the UK lets certain people vote in certain elections but not others.

General Aspects of the Right to Vote in the UK

The UK Parliament has been responsible for setting the general terms of the franchise in the United Kingdom. The first thing to recognise is that the UK does not limit the franchise only to British citizens. Voting rights exist for "qualifying Commonwealth citizens" (which includes but is not restricted to, British citizens) and citizens of the Republic of Ireland. A "qualifying" Commonwealth citizen is one who either does not require leave to remain, or who has leave to remain, in the United Kingdom. This allows nationals of over fifty sovereign states, and those holding nationality connected either with British Overseas Territories or Crown Dependencies to participate in all UK elections. The UK therefore takes, in many respects, a more permissive stance on citizenship than other countries do. The right to vote in Canadian federal elections, for instance, is restricted exclusively to Canadian citizens.

The EU dimension

However, the issue is given an additional layer of complexity by virtue of our membership of the European Union. Under Article 22 TEU:

"Every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as nationals of that State"

This is supplemented by Directive 94/80/EC, which regulates and imposes some limits upon this general obligation.

It is worth pointing out that this obligation only applies to "municipal elections". Nevertheless the UK has chosen to extend the right to vote in devolved elections, to the Holyrood, Senned and Stormont legislative bodies, in addition to those relating to local authorities. This is because the franchise for those bodies was originally determined with direct reference to the entitlement to vote in local authority elections.

Implications for Scotland's elections

The result of this is that EU citizens living in Scotland have the right to vote in Holyrood elections. Since the passage of the Scotland Act 2016, the Scottish Parliament has gained legislative competence over its franchise and those of Scottish local authority elections. It could, if it wishes, choose to extend or restrict the right to vote in a way that departs from the prior position under UK electoral law. It has already done this with respect to the minimum age someone must attain before they can vote, cutting it from 18 to 16 ahead of the most recent set of Scottish Parliamentary elections. This power is constrained, however, by the imposition of a new "super-majority" requirement. To modify the franchise for Parliamentary elections, at least two-thirds of the whole Parliament must vote in favour of it.

When the UK leaves the European Union, the requirement to implement the EU Treaty and Directive provisions in relation to the right to vote will likely elapse (unless the withdrawal agreement under Article 50 stipulates otherwise). This would potentially render the words "relevant citizen of the Union", which are inserted into the Representation of the People Act 1983, ineffective for the purposes of the franchise, since the Treaties would no longer apply to the UK.

This does not prevent the Scottish Parliament, however, from implementing legislation to preserve those rights. It would be open to them to pass a law including EU citizens in the franchise again, or indeed to enfranchise any other group, whether or not they were citizens of a particular country.

What about referendums?

Where things get even further complicated still is in the area of referendums. The UK does not have a prior set of restrictions on who can vote in a referendum. Instead, the legislation that provides for a referendum must itself define who can participate.

In the first independence referendum, the question who may vote was a matter for the Scottish Parliament. Indeed, specific legislation was introduced during that referendum campaign to make provision to allow for the registration of younger electors so they would be on the register in time to vote if they were only 16 or 17 on polling day. At that time the electoral roll did not include some of these people because they would not have been 18 at the next relevant election, and that was the prevailing minimum age in UK law to vote.

Even if it is the case that under EU law Scotland is required to allow EU citizens to vote in Holyrood elections (and that is doubtful as they are not, incontestably, "municipal" elections) it is plainly not the case that it is required that they are allowed to vote in referendums. EU law stipulates no conditions there. Nevertheless, the Scottish Parliament took the position that no one who was allowed to vote in a Holyrood election should be excluded from voting in the independence referendum. They, quite simply, chose to set the franchise that way. EU citizens were therefore permitted to vote.

Equally, however, in the EU referendum, the United Kingdom Parliament took the position that the franchise should be the same as it was for UK General Elections. It therefore included Commonwealth citizens, but excluded a freestanding right to vote for those who were EU citizens.

So what does it matter in a future referendum?

The issue at hand is what would the situation be in a future independence referendum. If the UK leaves the European Union, the default position is likely to be that EU citizens will lose their Treaty-derived right to vote in any UK elections.

There is a related issue, however. The Scottish Parliament does not clearly have the legislative competence to hold an independence referendum without the UK Parliament granting it such a power. Last time, that power was granted without any legal conditions imposed on what the franchise would be. The Edinburgh Agreement proceeded on the basis of political consensus that, at least, the Scottish Parliament's franchise should be used as the starting point and that the Scottish Parliament should decide after its consultation whether and to what extent it should be expanded on the grounds of age. It should be pointed out, though, that in 2012, the Scottish Parliament's franchise was set by the UK Parliament so letting the Scottish Parliament set the franchise for the referendum at all was an innovation and constrained by a set of constitutional norms they did not yet control. This would not be the case in a second referendum, where the Scottish Parliament controls its own franchise.

I think it is reasonable to expect that the first referendum should set a precedent: the franchise in an independence referendum is a matter for the Scottish Parliament, even more so than it was in 2012-13, since its powers in this area more generally have grown, rather than shrunk in recent years. There should, therefore, be no legal impediment to the enfranchisement of EU nationals or indeed anyone else, should a second independence referendum come along.

However, it is possible that the UK Government might, this time around, demand that conditions should be imposed on any re-grant of the power to hold a referendum. The possibility of conditions being imposed this time in such a way as they were not last time has been raised by David Torrance in his article in The Herald today. He takes the view that the UK Government might insist upon restrictions both on the timing of a referendum and possibly even the question asked. Last time there was a time limit of about two years, within which there was total discretion to hold or not hold the referendum, and the question was set by the Scottish Parliament in consultation with the Electoral Commission. For my own part I am ambivalent about the virtues of anything that could be seen as a political fix-up, on the part of either side in these areas.

These conditions might, however, include constraints on the franchise. This is therefore a potential bone of contention. If HM Government were to insist on excluding EU citizens from the referendum despite the Scottish Parliament having potentially protected their ordinary voting rights, the question of who has the right to decide the franchise could very easily become the obstacle to agreeing a section 30 order.

Conclusion

I think Neil Lovatt is wrong when he says that, post Brexit, EU nationals "certainly won't" have voting rights in Scotland, let alone in relation to a referendum. Ultimately these are choices that the Scottish Parliament has, by the precedent, been entitled to make. If the UK Government wishes to create problems for itself by insisting on constraints that it did not insist upon last time, that would likely be very politically unwise indeed.

Leaving the EU does, however, re-open the question of voting rights generally in the United Kingdom. As part of the emerging conflict of political cultures, the franchise is a possible avenue where this "open v closed" society dynamic could come into life. It will say a lot about our country whether this change leads us to include or exclude people from our political processes. One might even say this is the real mark of who exactly it is that is "Taking Back Control".

Would the First Minister please grow-up?

The purpose of First Minister's Questions is to allow the Scottish Parliament to scrutinise the policy decisions and implementation of the Scottish Government. This is vital in representative democracy. Governments, even those with the support of the majority of members of Parliament or even, dare I say it, the majority of the electorate, still are not perfect, and their judgment and their competence has to be kept under constant scrutiny. That is why a Parliament exists at all, rather than that we just let the government pass legislation uninhibited for a five-year term.

Just because you've won one, or two, or three elections, does not mean that you can or should just do whatever you like. Nor does it mean that everyone who voted for you agrees with everything, or even most, of what your platform for government entailed. Of course you are entitled to attempt to implement as much of that as possible, but popular support is not, in and of itself, a justification for making any policy decision whatsoever. Being popular does not mean that your judgment is good, or that your ideas are good, or that the way you put them into practice is good. And it is no defence to the accusation that your record or decisions are bad to say "but your decisions are worse".

To this end, the First Minister, Nicola Sturgeon, has continued into this Parliament one of the most nauseating and childish tendencies of Scottish politics. Whenever she was questioned about her record in the last Parliament, her response was often to boast "we won the election" or "your party is a mess as we beat you". As several commentators observed in the election itself, she said she was happy to be judged on her record in government precisely because she knew that those planning to vote for her mostly would do so regardless or in spite of it.

"My manifesto" is not an answer

Today in Parliament, Patrick Harvie drew attention to a report on poverty, the findings of which the First Minister had agreed to implement. It stated, in relation to local taxation, that the council tax was "no longer fit for purpose" and was hugely regressive. This was a position the SNP had actually held for some time, and in the past Nicola Sturgeon herself had said that the council tax should be replaced with something fairer. However, the SNP government, after 9 years in charge, chose only marginally to tinker with council tax, making it slightly less unfair instead of replacing it outright.

He asked her why she wouldn't take the opportunity to be bolder, in light of that report, and abolish council tax in favour of a more radical alternative. This was Nicola Sturgeon's response:

"We put forward our plans, plans that I believe were bold. Patrick Harvie put forward his plans, and the electorate cast their votes. I'm standing here as First Minister with a mandate to take forward the proposals that we were elected on."

This is not an answer to Patrick Harvie's question. She provided no substantive argument as to why a more radical alternative would be a worse policy. There is no point in First Ministers Questions if the response we are going to get to substantive criticisms of her government's platform is "I was elected to implement my government's platform and we won." Just because you have an electoral mandate to do something, doesn't mean you should do it. Bad ideas are bad ideas regardless of how many people support them. The mantra of Keynes that when the facts change so should your mind is important.

Governments are supposed to be responsive to evidence and criticism and to explain why they are doing what they are doing and just as importantly why they are not doing what they are not doing. No one is questioning Nicola Sturgeon's authority simply to tinker with council tax. Harvie was questioning why that's what she wants to do. Just because she won the election doesn't mean that Parliament, and the people, are not entitled to an answer to that question. And she has, or at least gave, no answer.

"Your point is invalid because I have more votes than you"

Similarly, Willie Rennie asked the First Minister about a Memorandum of Understanding entered into between Nicola Sturgeon and two Chinese companies for £10 billion of unspecified infrastructure projects in Scotland. Those companies were SinoFortone group and the China Railway No 3 Engineering Group. The parent company of the latter has been implicated in corruption charges and human rights abuses in various projects, including a number in the Democratic Republic of Congo. Rennie sought assurances that no government contracts would be awarded to this company, which has been heavily criticised by other countries, and was in fact blacklisted by the Norwegian state oil fund. He also drew attention to Amnesty International's criticisms of the company and the reasons they gave why economic cooperation with CRG was bad for human rights.

Sturgeon's response?

"Hold the front page. First Minister of Scotland seeks to explore opportunities for investment and jobs into Scotland. SHOCK HORROR. That is part of the job of First Minister of this country and the fact that Willie Rennie doesn't recognise that is a core responsibility of the First Minister is probably part of the reason why he will never stand here as First Minister of this country."

The only people impressed with a response like that must be those that unthinkingly clap their seal-like flippers for hands to absolutely anything she says. Literally no one that criticises a trade deal on the grounds of its human rights implications doesn't think it's the responsibility of a government to attract inward investment. What the question asked was about was the kind of compromises the First Minister was prepared to make in order to procure that investment, or the lack of due diligence undertaken before signing the Memorandum of Understanding. Instead, we get a response that basically amounts to "I got more votes than you so you can't criticise me ne-ne-ne ne-ne-ne". It's risible.

Just not good enough

This represents a hubristic tendency in the SNP leadership that basically thinks it does not need to accept or respond to the substance of criticism because 41.7% of the electorate voted for them.

One could just about understand the logic of "I hear what you're saying but I don't care, we have a mandate and we will implement it anyway" when the SNP held a majority of the seats at Holyrood. It's a crap argument, but at least in a technical sense, they could do what they liked under the terms of our representative democracy. It is easy to forget that if you're playing the top-trumps "the people agree" card, more than 50% of those who voted did not support an SNP candidate. The people do not completely and unconditionally agree with them.

But especially now that they have lost their majority, the SNP do not have a mandate to implement all of their proposals. They have a mandate to try, but a minority government has not just a functional, but a moral imperative to listen to criticism on the substance of what they are doing and why they are doing it, and not simply to waive away criticism with "we won you lost".

The Scottish Parliament was supposed to herald a new politics. A break from the yah-booh childishness of Westminster. Yet our First Minister approaches her responsibility to account for her policies and decisions in Parliament with the mentality of a four-year-old child in the playground. For the sake of Scotland, it's time she grew up and dealt with criticisms of her government maturely instead of adopting an unwarranted indignance at the audacity of opposition parties to criticise decisions taken under her watch.

The Myth of the Squeezed Middle

One of the biggest frustrations of Liberal Democrats in the 2015 General Election was the manner in which the Conservative Party tried to claim credit for tax cuts they opposed in 2010. The Lib Dems had a policy of increasing the "personal allowance", which is the amount an individual is allowed to earn free from income tax before they have to start to pay the basic rate. The Coalition delivered on this promise, raising the personal allowance from £6475 in 2010-11 to £10600 for the tax year 2015-16.

This wasn't a cheap policy. It cut-into the tax-base of the UK by taking some people out of tax completely and drastically reducing the tax liability of everyone on low and middle incomes. It amounted, for almost everyone in full-time employment, to an £825 cut in their annual tax-bill. If the threshold had only kept-up with RPI inflation, it would only have risen to £7490 over this period, which would have only cut basic rate payers' taxes by £203. To have a tax cut of over £600 in real terms for the overwhelming majority of workers in the UK clearly wasn't nothing.

Paying for It

There were two steps the Coalition government took in relation to income tax that were intended to defray the cost of this policy. The first was to introduce a "taper" on the personal allowance. When you started to earn over £100kpa, you would lose £1 of your personal allowance for every £2 you earned above that. This created, it should be acknowledged, an anomaly whereby the marginal rate of tax paid by someone earning between £100k and £120k was actually higher than the rate paid by those earning more than that.

The other step taken was to cut the threshold above which higher rate tax would become payable. Higher rate tax is levied at 40p in the pound, and was paid on income above £43875 in 2010. As of the tax year 2015-16, this threshold kicks-in for income over £42385. This has the effect of increasing the amount of income taxable at 40p instead of 20p by £1490. This, in and of itself, increases total tax liability by up to £298.

Effect on Tax Paid

The combined effect of the changes to the personal allowance and the size of the basic-rate band is that basic rate-payers got a cash-terms £825 tax cut, whereas higher rate payers got a tax cut of £527. If both the zero-rate (personal allowance) and the basic-rate bands had expanded in-line with inflation, higher-rate payers would have expected a £1375 or so tax cut. If inflation is your standard, therefore, it's absolutely true to say that higher-rate and upper-basic-rate income tax-payers saw "fiscal drag" increase their tax liabilty in real terms (2015 prices), to pay for a substantial tax cut for everyone else.

A £622 tax cut represents about 4.6% of a full-time minimum-wage-earner's annual income. For someone on £20k, it represents 3.1%. If you earn the median household income, about £27k, that's a 2.3% cut in your taxes as a proportion of your gross income. These are very real gains which, although clearly not the whole story when you take-into account tax credits and benefits, have in themselves significantly helped most working people.

By contrast, higher-rate payers saw a maximum real-terms (2015) increase in their taxes of £803. This would apply to those earning over £50k or so, which is where the higher-rate threshold would have been had both the personal allowance and basic-rate-band been indexed to RPI inflation. That means a hike of 1.8% of their gross income. In effect, therefore, their tax hike, at its worst, is still much smaller than the tax cut everyone else got.

Is this fair?

Let's be clear who this higher-rate tax band affects: HMRC estimates show that if you are a single person and you earn over £40kpa, you are among the top 10% of household earners in the UK. For an adult with a working partner and two children, this would typically place you in the top 20% of household earners. Put more bluntly, the lowest earning four in five of adults do not and most probably will never, pay this tax.

If you put it in those terms, I suspect most people would be content and say that as a tax-priority, the lowest 4/5 of earners being given tax cuts off the backs of very small tax rises for the top 1/5 was fair.

The counter-argument, and an argument that has reared its head now that the Scottish Parliament is going to get the power to set thresholds and rates of income tax, is that over-time lots of people who would never have paid higher-rate tax in the past have now been pulled-into this category and that this is unfair. We hear the classic invocation of nurses, firemen and teachers in support of this. An audience-member in the BBC's Scottish Leaders' Debate on Friday said the very same. This rate was meant for rich people not for good and honest public-sector workers.

Never mind, of course, that a nurse has to reach band 8 of 9 on the standard pay-scale even to get close to the level of income necessary for higher-rate tax. Almost all of the positions at that pay-grade are managerial and consultant-level positions. Your conventional understanding of even a senior nurse on a hospital ward is going to be no higher than band 7, who earns less than the higher-rate threshold. In teaching the position is similar: in the public sector schools only senior management and principal teachers earn more than the threshold, and of those who do, most earn on or around the threshold. The extra tax they pay is barely if even off-set by the personal allowance tax cut they have already taken to the bank. Presenting the threshold cut as an attack on typical public sector workers is, frankly, deceitful diversion or brutal ignorance.

"Things were better in my day"

It does not even follow that levels of taxation have especially risen for middle-earners in the last 25 years or so. Let's take 1990-91, the tax year immediately before I was born. The personal allowance was £3005 (£6161 in 2015 value) and the higher-rate kicked-in at £23705 (£48601 in today's money). You'll notice this isn't too far away from the thresholds in 2010 once you've taken inflation into 2015 money into-account, and if anything both the personal allowance ends and the higher-rate threshold kicks-in at a slightly lower level of income than both at inflation adjusted 2010 rates. But all of this ignores the fact that the basic-rate of income tax was 25p, not 20p, in 1990-91.

That 5p extra means every higher-rate-payer was paying more than £2100 more in basic income tax than they otherwise would, an amount which is not-offset by a higher threshold for higher-rate tax, which cuts their taxes by just over £800, assuming a basic rate of 25p applied. If we applied the 1990-91 tax code in terms of rates and bands and adjusted for inflation, these high-flying nurses and teachers would be over £100 a month worse off!

Current Proposals

The Conservative Government at Westminster proposes to raise the 40p threshold ahead of inflation, to £45k and eventually £50k, in order to try to "remedy" this "unfairness", whereas the SNP Government have (in my view, correctly) chosen only to raise the threshold to account for inflation in Scotland. The reality of the Conservative policy especially is that in cash-terms the top 10% of earners will essentially get a bigger tax-cut than the lowest paid 90% in this country.

Even the SNP policy is imperfect, however. If Scotland is to be serious about ending austerity, we should not just be looking at the thresholds at which taxation applies. We should also be looking at the rates at which taxation applies. There are perfectly reasonable areas for disagreement about the Scottish Rate of Income Tax (SRIT), which the SNP refused to use to raise revenue on the grounds that it would also be levied on basic-rate payers. I covered the flaws of their reasoning on this in a previous post a while back. But when the Scotland Act 2016 powers come into force, there is the choice to raise revenue by raising the higher-rate of tax without raising the basic-rate, or not raising it by as much.

If the SNP were to slightly lower the higher-rate threshold (rather than to increase it with inflation) and to introduce a higher-rate of between 41 and 42p, they could have asked the top 10% of Scots to pay what they would have been asked to pay with an increase in the SRIT, without asking for a penny more from the rest of Scotland. It would not have raised as much, but it would have made something of a dent in the austerity cuts they claim not to like that are coming from Westminster. When the Scotland Act 2016 comes into full effect, they could have even used this slight increase in tax on the wealthiest Scots to protect and even supplement the welfare policies they think the Conservatives are bearing-down too hard upon.

The Live Election Debate on Tax

This would have been a more meaningful debate to have than the false one that's taking place between the SNP and Scottish Labour about the 50p rate in the Holyrood election campaign. Amusing as it is to call Sturgeon a Tartan Tory for parroting George Osborne's lines on a 50p rate, she's probably right: Scots earning significantly over £150kpa probably do have significant incentives to arrange their affairs so as not to be designated a Scottish taxpayer. As a side-point, it's also difficult to see how an independent Scotland's tax code would vary so much that they could painlessly prevent that reality. Those earning less than that, however, probably don't. You're more likely to raise more revenue from the top 10% of earners through adaptations to the higher rate than you are through the additional rate of income tax.

If the SNP cannot explain why they won't cut the threshold and levy a 41-42p higher-rate, it rather calls the bluff of the public reasons they gave for not supporting the rise in SRIT. If Nicola Sturgeon wants to run Scotland as a country with taxes not significantly at variance with those of the United Kingdom as a whole and largely in conformity with George Osborne's fiscal envelope, that's fine by me, but she should at least be up-front with the Scottish people that she's no social justice warrior in doing so. One of the big arguments made by the SNP about independence is that our current fiscal gap would not be a problem because we would totally change the dynamics of the way we tax in our state. The evidence increasingly suggests that the more tax power the SNP get, the more obviously centrist, cautious and happy to dovetail HM Treasury they become. Perhaps they're the best kind of Unionists after all.

Alas, in the heat of an election campaign, having a debate about policies that actually affect people's lives and can make a difference tend to fall by the wayside. I doubt Sturgeon or Swinney will ever need to have, let alone give, an answer to these obvious questions.

This is not the veto you were looking for

A common refrain from the Scottish National Party in recent days has been that the Scotland Bill is not living up to what was agreed in the Smith Commission. The key complaint seems to be that there is a "veto" for the Secretary of State for Scotland over the introduction of or alteration to welfare benefits falling within the Holyrood Parliament's competence.

What they appear to be talking about is a restriction on the Scottish Ministers making regulations concerning devolved aspects of Universal Credit. Here is what the Smith Commission said about it:

"43. Universal Credit (UC) will remain a reserved benefit administered and delivered by the Department for Work and Pensions (DWP). Within this framework, the Scottish Parliament will have the powers outlined in paragraphs 44 to 45 in relation to UC.

44. The Scottish Government will be given the administrative power to change the frequency of UC payments, vary the existing plans for single household payments, and pay landlords direct for housing costs in Scotland.

45. The Scottish Parliament will have the power to vary the housing cost elements of UC, including varying the under-occupancy charge and local housing allowance rates, eligible rent, and deductions for non-dependents

46. The power to vary the remaining elements of UC and the earnings taper will remain reserved. Conditionality and sanctions within UC will remain reserved."

The key points are therefore as follows:

1. Universal Credit is to remain, generally, a reserved matter, administered mostly by the UK Government's DWP.
2. The Scottish Government is to be given some flexibility in certain administrative and minor policy provisions in relation to it.

Now let's look at the provision in the Scotland Bill to which this "veto" relates. It appears to relate to the power to make regulations in respect of how much housing benefit someone is entitled to, who it's to be paid to, and how frequently. Pretty dry stuff. Sections s24(4) and 25(3) are the ones that contain this so-called "veto" power. Their wording is identical. It is as follows:

"The Scottish Ministers may not exercise the function of making regulations to which this section applies unless—
(a) they have consulted the Secretary of State about the practicability of implementing the regulations, and
(b) the Secretary of State has given his or her agreement as to when any change made by the regulations is to start to have effect, such agreement not to be unreasonably withheld."

The wording of this, to me, seems pretty clear. The nature of the duties and rights here do not relate to whether or not a set of regulations may be made, but when their implementation should take place. It is an administrative function to ensure DWP is ready to alter Universal Credit payments in line with whatever regulations the Scottish Government decides to make. This explains the consultation on the "practicability" of the "implementation" of the regulations in sub-clause (a), and suggests that the requirement to consult does not relate to whether or not any change should happen. This is re-enforced by sub-clause (b) which restricts the Secretary of State's ability to withhold agreement "as to when any change made... is to start to have effect".

This is important, because it means when Stewart Hosie said, on the Daily Politics earlier today:

"If the Secretary of State, the sole Tory left in Scotland, decided not to give his agreement, for whatever reason, he or she has a de facto veto and therefore the spirit of the Smith Commission is breached before we even get going."

He was wrong. Firstly, because refusal cannot be "for whatever reason". It must relate to the practicalities associated with the timing of the implementation of the regulations. This is not a veto. If the Secretary of State refused to give his consent because he or she disagreed with the principle of housing benefit payments being increased, or made more frequently, his or her decision could be subjected to legal challenge as using a power for an improper purpose, or for taking into account irrelevant considerations, two well-established common-law grounds for judicial review, and ordered to be retaken.

This is re-enforced further by the second part of the sub-clause, which provides that "such agreement [is] not to be unreasonably withheld". This, in effect, means that if the Secretary of State is to withhold consent, he or she must be able to show that it was reasonable to withhold consent with respect to the timing of the implementation of the regulations. He or she would likely need to show evidence of administrative difficulties meeting the demands of the Scottish Ministers' regulations from the DWP, and failure to do so might additionally have the decision struck down by the courts for irrationality if no such obstacles can be identified.

If the Scottish Government's powers with respect to Universal Credit were to be administered by a Scottish Government Department, it might be reasonable to say that consent in some form of the UK Government was unnecessary and unreasonable. This is not, however, what the Smith Commission proposed. It proposed that Universal Credit be a matter for the Department for Work and Pensions. This provision is one intended to facilitate logistical integration between Holyrood regulations and Westminster departments. It's not a political ploy to stop Scottish politicians implementing different welfare policies from the rest of the UK.

Put at its simplest: this is not a veto. This is what Smith promised.

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.

Conclusions

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!