Constitutional Futures and Fudges

For some months now the focus of my PhD thesis has looked at the secession movements in Quebec, Catalonia and Scotland. I'm especially interested in how each of the Canadian, Spanish and British constitutional orders have gone about responding to desires both for a referendum on secession or independence, and what role the courts have in clarifying the parameters of and enforcing duties owed between the relevant parties in delivering referendums and in responding to their results.

I don't want to get too deep into the nuances of what I've been writing about, though that is for another time. I do think, however, it would be interesting and (I hope) useful to explain a couple of recent developments in the Quebec and Catalan disputes.

Canada and Quebec - Brief Context

Quebec's National Assembly drafted legislation for the holding of a referendum on secession from Canada in 1995, known as the Sovereignty Bill, which led to a razor-thin majority of voters supporting the province's continued place in Canada. There was a legal challenge made by a Canadian citizen to the competence of the provincial government to organise that referendum, in a case called Bertrand v Attorney General and the legislation was found to be unconstitutional, but the provincial judge declined to order the provincial government to cease and desist with holding the referendum pursuant to it. The federal government had been reluctant to get involved in that litigation, lest it be seen to be acting anti-democratically, a perception which could help the Quebecois secessionists' cause.

Nevertheless, in the aftermath of that referendum, the federal government referred a number of hypothetical questions to the Canadian Supreme Court. In the Reference Re Secession of Quebec, the Canadian Supreme Court concluded that there was no constitutional route, otherwise than the amendment procedures provided in the Canadian Constitution itself, by which Quebec could secede from Canada. This ruled-out "unilateral declaration of independence", a right asserted by the Parti Quebecois and Bloc Quebecois, as being potentially legal. This position is adopted either implicitly or explicitly by most country's constitutions, whether or not codified.

What was more controversial in that judgment was that it did say that, under the confluence of the core constitutional principles of Canada, including federalism, democracy, the rule of law and protection of minorities, there would be a "duty" on the part of the federal government to "enter negotiations" to "respond to" a clearly expressed desire to secede from Canada. In my current work, I have explored at length what the substance and effect of these duties would be, and how if at all they can be enforced (my conclusion is that, in reality, they can't). This section of the judgment was important, however, because it gave rise to two pieces of legislation in Canada: one federal; one provincial. Each represented what the federal government and the provincial government respectively believed would constitute a "clear majority" on a "clear question" expressing the desire to secede, and in each case spelled-out the implications of this.

The Legislation

Both pieces of legislation have their faults. The Clarity Act, for example, takes a very narrow interpretation of the Supreme Court's ruling and in many respects, despite its name, does not in fact provide "clarity" as to the circumstances in which Quebec may secede. It does not provide a definition of a "clear majority" and leaves that open to interpretation: for the House of Commons to decide, in the aftermath of the actual holding of a referendum. Canadian politicians have also been less than completely clear or honest as to what aspects of the Clarity Act affirm what the Supreme Court said, and what parts go beyond it, merely drawing their preferred constitutional inferences from it.

In the Macleans Election Debate, current Prime Minister Justin Trudeau claimed that the 9 Supreme Court justices said that a simple majority of support was not sufficient for Quebec to secede from Canada. The Supreme Court did not in fact state that even unanimity of the Quebecois was, in and of itself, enough to give rise to a right to secede, though the context in which they said the threshold imposed may be higher than a simple majority was in relation to this "duty to respond" and not with respect to a right to secede. They were merely saying that the Canadian government could constitutionally insist on a higher threshold; not that they should. Trudeau's position was therefore based on the Clarity Act itself, and was not itself a defence of it remaining in place as compared to an alternative piece of legislation, the like of which was proposed by Tom Mulcair's party the NDP.

However, the "mirror" law passed by the Quebec National Assembly, known as Bill 99, was equally contentious. It attempted explicitly to define a clear majority as 50% plus 1 of those who voted in a future referendum. It also made some pretty broad-brush rhetorical claims about sovereignty that went explicitly at odds with what the Supreme Court had said.

Catalan Parallels

Bill 99 has a lot of similarity with both the Declaration of Sovereignty and subsequent resolutions of the Catalan Parliament when it comes to proclaiming sovereignty and the right to secede. The critical difference, so far, has been that the Canadian federal government had been happy just to leave Bill 99 on the statute book, so as not to inflame tensions in Quebec, especially given there had been no imminent threat of another referendum. Parti Quebecois had weakened at a provincial level and Bloc Quebecois had lost many of its seats in the Canadian House of Commons, first to NDP candidates and then to the resurgent Liberal Party.

In Catalonia, the Spanish Government has been unrelenting in its determination to prevent the holding of a constitutional referendum. They believe that, as the Spanish Constitution states sovereignty rests in the Spanish nation, any plebiscite should take place throughout Spain and not in Catalonia alone on the question of secession. It is also arguably the case that for a referendum only of Catalans to be held, the Spanish Constitutional amendment procedure would itself require a referendum of the whole of Spain. On no fewer than five occasions has the Tribunal Constitucional declared aspects of the secession project to be illegal, and Artur Mas, former Catalan President, was impeached for his role in holding the "non-referendum popular consultation" in November 2014. The Catalan situation has reached something of an impasse, not helped by the inconclusive nature both of the most recent Catalan and Spanish elections.

Bill 99

Despite having left Bill 99 alone, probably hoping it would remain hypothetical and that its inconsistencies with the Clarity Act and the Constitution would never really matter, the federal government could not prevent private litigants from challenging it. In a similar vein to the way that Guy Bertrand had challenged the Sovereignty Bill back in 1995, an English language-rights party in Quebec, the Equality Party, had sought standing to challenge its provisions as unconstitutional. In 2007 the Quebec Court of Appeal granted permission for this challenge to take place, but the litigation had been incredibly slow.

In 2013, then Canadian Prime Minister Stephen Harper asked his Attorney General to intervene in that case and make direct representations as to the legality of Bill 99. There is an excellent piece by Paul Wells, formerly of Macleans, which shows the nature of the challenge and explains some of the context behind it. Progress in this case has been slow, but having contacted Mark Walters, prominent Canadian public law academic who wrote a seminal piece some years ago on the Secession Reference, I understand that this case will be heard by the Quebec Superior Court some time in September this year. As an aside, Mark is currently a Professor at Queen's University in Kingston, but will shortly be taking up the FR Scott Chair at McGill. His help on the Canadian aspects of my thesis has been hugely appreciated.

Why should we care?

The implications of Bill 99 potentially being struck down are significant, as it may agitate Quebecois secessionists, contrary to the wishes of the ardently pro-federalist Liberal government, which continued with the case initiated by Harper's Conservatives. I was prompted to draw attention to these ongoing developments in light of an article I saw in the Canadian media this afternoon. Le Devoir, a French language news outlet, has drawn attention to the calls of a number of Parti Quebecois representatives for the holding of another referendum to try to "break the liberal monopoly and resolve the national question once and for all". The PQ deputies want Quebec to be given a choice between independence and a "new" federal settlement.

The Canadian Supreme Court, Clarity Act and Bill 99 were not just concerned with what constituted a clear majority in favour of secession. They were also anxious that any referendum should ask a question "free from ambiguity". The inclusion of a "new federalism" settlement would very obviously fall foul of the Clarity Act and at least arguably would be unconstitutional in the terms described by the Supreme Court in the Secession Reference. The problem with these proposals, just as with the undefined "sovereignty association" suggestion in the 1995 Quebec referendum, is that they can both skew the result on the principal question and entail their own aspects of constitutional unfairness.

Unless voters are completely clear about what the "developed" or "new" alternative to secession or the status quo is, and what major specific changes it makes to the existing settlement they are being asked to provide a mandate that is simultaneously all things to all people and nothing to anyone. There is also a really basic principle of democracy which is an obstacle in these situations. It's quite right or at least a strong case to argue that democracy can be invoked to decide whether a people want to be part of a club or association of nations or states that make decisions about how they govern themselves. It is quite another to say that a state, nation or country, having decided to be a member of such an association, can then unilaterally set their own terms of membership or impose a broader set of rules for governance that affect all of the other parts of that state. The comparisons to the European Union referendum the UK is currently engaged in is an important one here: trying to set the rules of the game at the same time as trying to play the game to find a winner, in the constitutional context, is messy.

The Scottish Dimension

These developments produce an interesting parallel for Scottish observers, because in the first and second SNP administrations at Holyrood, minority then majority, the prospect of a "two-question" referendum was heavily mooted. I argued at the time that my own political party, the Scottish Liberal Democrats, should have worked with the SNP to develop a "third way". I wanted them very clearly to spell-out an alternative basket of powers and responsibilities Holyrood should have and then to use a political mandate from a referendum to try to encourage the rest of the UK to move towards a more overtly federal structure. Such an approach clearly does come with risks, and if done recklessly could be considered to be constitutionally improper.

But if referendums are to become the principal method by which constitutional change is demanded (the new "gold standard" if you will) constitutional orders need to find ways simultaneously both to make secession disputes much more constitutionally clear-cut, and also to find ways of making internal constitutional reform more flexible and responsive to the structural challenges secessionist movements pose.

Hopefully I'll have a working solution for you before my stipend runs out!

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!

Scottish Independence, the Kirk, and the Constitution

The Kirk has its say
on Scotland's Future

Today, the Church of Scotland released a joint report from three of its Committees: the Church and Society Committee, the Committee on Ecumenical Relations, and the Legal Questions Committee. It concerned the constitutional implications of Scottish independence, and had a particular focus on the effect on church-state relations. However, the media seem to have closed-in on one particular recommendation of the report, which related to whether there should be a separate coronation for Scotland's future monarchs in the event that constitutional feature is retained.

I should disclose at this point, that I have a declarable interest in this particular issue. My honours law dissertation this year explored the historical relationship between church and state in Scotland. As a part of that, I addressed some of the connected issues of that relationship to the British constitution and Scottish independence. My father sits on the Legal Questions Committee of the Kirk, and on becoming aware of this report, I asked the joint committee if I may have advanced sight of it. I received the final draft in late February and it proved very useful. I wish to thank in particular Ewan Aitken, the Secretary of the Church and Society Committee, for being so helpful in this regard.

This is an important document for several reasons, and explains why the independence question is a lot more complicated than what is passing for today's political debate. There are several dimensions to this question about how we rule ourselves and how we are governed.

Where we are

Perhaps crucially, it reminds us where we are, constitutionally speaking, in Scotland. We have a (sort-of) established church, protected by the Treaty of Union. Indeed, the protection of Scotland's distinctive "national" Church from that of England is essential to the historical context of the Union, the constitutional framework within which we operate today, and around which devolution has circumnavigated. Though the Church of Scotland and the British state are, for most practical purposes, autonomous entities from one another, there remains a symbolic relationship between them. The Church of Scotland Act, and the "Declaratory Articles" of the Church of Scotland, define mutual duties and spheres of autonomy between them. The monarch must take an oath to protect the Presbyterian Church in Scotland, and does so before the Privy Council after his or her formal coronation ceremony.

The Scottish understanding of Establishment was always different from what we recognise with the Church of England. Our Reformation took a very different path from that pursued by Henry VIII and Elizabeth, whereby there was a relationship of coexistence between church and state, rather than subordination of the Church to the state by the monarch. The Kirk has no ecclesiastical hierarchy; rather a Presbyterian polity, and does not have representation in the House of Lords. Crucially, it was seen to be "spiritually independent", something it values to this day.

The difference in the two church-state relationships is perhaps most poetically articulated by C16th theologian Andrew Melville. He issued a rebuke to King James VI, reminding him:

"Sirrah, ye are God's silly vassal; there are two kings and two kingdoms in Scotland: there is king James, the head of the commonwealth; and there is Christ Jesus, the king of the Church, whose subject James the Sixth is, and of whose kingdom he is not a king, not a lord, not a head, but a member."

Where we're going

Scotland's media have focused on the comments the report has made about the future of the monarchy. The SNP's proposal for independence, surprisingly (and disappointingly) for some, involves the retention of the monarchy, in the form of a King/Queen of Scots, performing a largely ceremonial role as head of state. The precise approach to implementing such a system remains to be clarified. This goes to the heart of what we mean by independence for Scotland and what the implications are for the rest of the United Kingdom.

The remainder of the UK would surely not be the restoration of the Kingdom of England. If we assume that Northern Ireland wishes to remain a part of the Union, we must take into account the fact that it represents the remaining territory of an historically distinct crown (that of the Kingdom of Ireland) which ultimately merged not with the Kingdom of England, but the Kingdom of Great Britain. No doubt there would also be some disquiet from those in Wales, who would contest being lumped in with the English crown even if that were historically true.

What this means is that the monarchies we would have to have after Scottish independence, in order to implement the SNP's model, would either be two completely newly constituted ones, or else we treat the Scottish one as having no continuity with its pre-1707 crown, and the rUK one simply losing territorial application. In either case, it means that the Scottish crown is something new, and whose role we will have to define carefully within the new constitutional framework. A constitution will have difficulty justifying, for example, a renewal of the Royal Prerogative, but it will have to provide alternative rules for how power should be exercised. We will have to reach some sort of arrangement about the line of succession, for instance: do we want to adopt the same rules as rUK? In particular, is there any need for us to retain the ban on Catholics from becoming our head of state, which the UK plans to retain under its latest reforms, even though the monarch may in future marry a Catholic?

These questions are more euphemistically raised within the paper. In particular, the Catholic question is described as a "sensitive ecumenical issue"! The way the Church of Scotland operates has changed significantly, even in the last 30-40 years. It has become far more open to working alongside other denominations, in worship and interaction with wider society. It seems to me that these matters need considered far more carefully than the relatively trivial question about whether there should be two separate coronations after independence. We should also ask whether the Church of Scotland should continue to be treated as a state-recognised denomination, rather than simply one which operates with the status as voluntaries (from Catholics, to Buddhists to other Presbyterians).

The justification for the two coronations was the notion that the monarch's oath to uphold the Presbyterian Kirk should be echoed in some way. This seems to me to be unnecessary, even if you were to keep the monarchy and an 'established' Church. The only reason that the monarch had such an oath in the first place following the Union with England, was to protect it against being turned into an Episcopalian or Anglican Church. There is no realistic prospect of the state interfering in the governance of the Church of Scotland in the 21st century, let alone a desire to impose a religion on the Scottish people at large.

Three Important Lessons

All this being said, I think there are three lessons we need to draw from this report and the broader issues of the Church of Scotland's relationship with the state, which matter considerably to the wider independence debate:

1. The role of faith groups in the state

If we are to involve faith representation in the constitution of Scotland, we need to be more imaginative than to adopt even the Scottish tradition of establishment. Scotland is more irreligious than ever before, and all large denominations are particularly struggling. Instead of privileging specific denominations with things like positions on local government education boards, for example, we should consider "faith-based-input" into state affairs being done on a more ecumenical platform. The organised religions of Scotland work closely with one another on many issues of practical significance (for example, they now consult one another regularly on how best to implement their legal duties like those with Disclosure Scotland in respect of children and vulnerable adults). Any constitutional exercise may wish to look at the work undertaken by the Scottish Inter-Faith Council and decide what, if any, formal avenues of input a similar such body should enjoy.

2. The role of civic society alongside the state

The Church of Scotland provides a model for engagement between state and civic society. The British conception of sovereignty, particularly of institutions, is very centralising and yet also very remote. If we are to encourage a new form of democratic engagement and to invogorate our civic institutions, it needs to come from an attitude of mutual respect by government for their spheres of influence. We should also look to close partnership between civic groups and the state in provision of "public goods" like education. This might reek of the rhetoric of David Cameron's dead duck, the "Big Society" but there is much to commend community action and to make good on the sense in Scotland of the "common weel". In much of the political opposition to what many see as "excessive" capitalism, there is a danger that Scotland loses its sense of society being something which can support itself without being subordinate to state activity. Democracy starts with community, and our political institutions will not always have the answers.

3. The importance of a clearly mapped constitutional process

We need to talk about the new constitution and we need to do it before the referendum. Even if it just means clearly outlining the process by which we will draw up our new constitution, we have to make sure that process is in place beforehand, and be clear what groups get to influence it and how. In particular, we absolutely do not want to have our constitution determined by whoever happens to comprise a political majority in our legislature at the time of independence. If a constitution is to be enduring, we have, at the very least, to seek a cross-political-party consensus before putting it to the people, and ideally we need to have some sort of input for civic society. Our constitution will set in motion the basis for a new way of doing things in Scotland, and we have to make sure everyone understands the terms of engagement in getting it right.

My politics is by instinct republican, but scarcely revolutionary. Though brought up in the Church of Scotland, I am irreligious. But even if Scotland is not the "Christian country" it once was, our religious organisations remain important to this broader debate about the kind of state we want to live in. To respond, we must first understand.

Just what is a constitution for, anyway?

Much has been made of the SNP's public plans for a written constitution to be formed in the event that Scotland becomes an independent state following the 2014 referendum. The quest for codification is something that has been, if put unkindly, a perpetual pet project of many a constitutional reformer (myself included). Hardly any states do not have some form of comprehensive document detailing the supreme or basic law of their state: the United Kingdom, New Zealand, Israel (sort of) and Saudi Arabia lack a central constitutional document setting out the bodies of state and what they may lawfully do.

I have long been in favour of the codification of the UK constitution. Though we have relied, historically, on the evolution of conventions and ad hoc solutions to constitutional conflict, it has left us with a patch-work of law, much of which is incoherent and inconsistent. We also have anarchronisms like the Royal Prerogative, which though largely exercised by government ministers these days, provides totally unaccountable powers used for malignant purposes. Even devolution is by its nature constitutionally conservative: minimalist in the way it changes the way the state operates. It is a politically, rather than a legally entrenched settlement, which relies on goodwill rather than institutional rigour to deliver its aims.

Constitutional introspection, though a risk, is also an opportunity. Properly revisiting the way you do governance provides an excellent chance to clean up the loose ends of a constitution, and to start anew in other respects. Iceland recently attempted to crowd-source its constitution. Though I think that's not a particularly good way to do it, some degree of consultation on the specifics, before having a referendum to ratify the constitution, would be a good way to go about it. One of the strongest arguments I think that exists for Scottish independence is that the call for a codified UK constitution has gained very little traction. It is symptomatic of the institutional aversion of the British state to radical all-encompassing reform of the way it governs. In that regard, independence presents an opportunity to have a serious discussion not just about how the central state runs itself, but also what kind of relationship it has with more local forms of power.

This is why I am so disappointed that the SNP have tried to turn the debate about the constitution into something it's not. A constitution is supposed, for the most part: to declare as lawful the existence of the different branches of the state (i.e. executive, legislature and judiciary); the extent and nature of their powers and who may limit them; and to enunciate the fundamental rights of the citizens, which the state is required to guarantee as a pre-requisite for its legitimacy to make sovereign acts on their behalf. A constitution does not exist to restrict the state on matters of broad policy as to how a state should allocate its resources. It is in that respect that talk of constitutionally protected state-funded University tuition and council houses for all is an absurdity.

These things should not be constitutional rights. There is significant debate about how we prioritise state funding, and what public services we expect people to contribute to in other ways. Now of course there is an emerging, particularly solidified consensus within the western developed world that there is a general moral right to education, and to a home, and states recognise broad duties to deliver the goals of these social aims. In education, our states legislate to provide primary education for all who seek it, increasingly secondary education is provided by the state out of general taxation, and there is a recognition that to leave people destitute is something that is not acceptable. But these are not the same kind of rights as the right not to be tortured, or the right to freedom of expression. These are delivered through substantive policies and extensive discussion about how and where to raise taxes and distribute government spending. You get the big discussions about whether benefits and services should be universal, or whether they should be means tested. You get questions in the NHS about whether we should fund a cancer drug or prescriptions. You get questions about whether we should build a new school, amalgamate existing ones and so forth. And yes, we get discussions about whether Universities and student support should be funded out of general taxation, or whether students should make a contribution in-lieu of that support.

Let's just assume for a moment that you buy into the idea that access to University can only be secured through full state funding and that it is an imperative (for various reasons why this is wrong, see elsewhere on this blog). How has this and other provision of "free" education more generally been delivered in society. By a constitutional guarantee? Of course not. It's been delivered by ordinary legislation. In the UK, school education was delivered by the Education Acts in both Scotland and England. Yes, the Republic of Ireland has a constitutional commitment to the provision of primary education. This is a direct importation of the substantive expectaitons of the international agreements many western states have signed up to. But no one is seriously saying that that constitutional provision is any causal link to the delivery of primary education in Ireland.

Why does its state provide secondary education if that isn't in the constitution? Why has virtually every modern western liberal democracy, even that market driven United States of America, provided primary and secondary education through state funding for all those who need it? Because it's about a political consensus about the broad way tax should be spent, and not a fundamental right. That's why. No one seriously suggests that the state is fundamentally illegitimate if it were to start charging for these things, but they might accuse it of being undemocratic and unrepresentative of the views consistently expressed by people at the ballot box. Other states that deliver state-funded university tuition do so without a constitutional amendment. Meanwhile, South Africa has a constitutional right to education. Yet millions remain illiterate and living in absolute poverty. It would be an absurdity if a court were to insist, by judicial diktat, that a state keep a particular school open or keep a particular course at University running and such-like, to the exclusion of being allowed to do other things with its budget to try to provide different kinds of education to other people. To borrow the title of Ted Heath's 1966 Tory Manifesto, "Actions, Not Words". That's how you satisfy socio-economic rights.

But now let's suppose that governments did consider themselves bound by this constitutional law. What does the fact it's a constitutional law, and not an ordinary law mean? It means that it's likely to be more difficult to repeal or to change. Constitutional provisions typically require some sort of special procedure to be overturned, unlike an ordinary Act of Parliament, with the effect that if the consensus changed, or someone who did not share this policy came to government, they would be prevented from implementing their own economic policies by a static spending commitment that they could not alter. What right do the SNP have to entrench their own policies into the very legitimacy of the Scottish state? One of the most strongly resonating messages of the YesScotland campaign is that independence is not just about the SNP. It's hard enough trying to convince Unionists that independence isn't an eternal fiefdom for Alex Salmond without his party making clear that it is their intention to impose his manifesto in the constitution if his party have control over the constitution. If we are to have a clean slate, that means being able to make these decisions as a country for ourselves. Independence is about having more control over our own affairs, not less, and placing unnecessary limits on the policy process makes us have less influence over our own affairs, and actually, less democratically accountable.

Moreover, the SNP policy doesn't even resemble what we understand as a right. It's a policy. It doesn't enshrine and encompass a general principle about education. Free tuition in Scotland applies to a very distinct and carefully defined category of person. It doesn't apply to non-EU international students and (at the moment) rest of UK students. It doesn't apply to students who have to resit years and can't get false-start funding. It doesn't apply to postgraduate students (as every lawyer and teacher will tell you!). It is a very specific commitment to fund the tuition fees of those who are accepted to their first undergraduate degree who are Scottish domiciled or an EU student. It doesn't go to the heart of a fundamental "human" right, because it doesn't apply to all humans. It doesn't encompass education generally because many courses that people get offered to become a part of on merit cannot afford the post-graduate costs. It doesn't encompass all courses, but specific ones approved by the state. If you don't meet their special criteria for what constitutes education, you don't get help. There is no general commitment to continuing access to universities for lifelong learning and personal development. This is a policy, based on finite resources. And that's fine. But its not a fundamental right and it doesn't deliver or guarantee a fundamental principle. Provision of things is different from, for example, the right to free expression. We have the right to speak out and to communicate, but the state doesn't give everyone a phone and a newspaper business. You don't have to be socialists or communists to believe in human rights, because they don't require specific provision of things by the state, except insofar as the state interferes with your rights in other ways.

But actually, what this shows is that the SNP want to make the independence debate about something it's not. It's not about whether you get more or less "free" stuff on independence. It's about taking responsibility for our own decisions. Their policy is hotly contested in respect of what it guarantees. As I've shown elsewhere on this blog, the continuing existence of maintenance loans, which are repaid under the same system as fees anyway, actually means education isn't even a free and accessible endeavour. For those who earn a career average salary of £28.5kpa in today's money, the Scottish student finance system actually requires you to pay more for your education than the English one does. If you believe in the principle of free education, you have to go the whole way and have the guts to return to maintenance grants. That means either finding the revenue to pay for it elsewhere, or cutting the number of people that go to University. The truth is that if your principle is fair access to all, a form of graduate contribution is likely to be the best way to facilitate more education and better education throughout Scotland, even if we are well off and raise more revenue in an independent Scotland than we do in the current UK situation.

You see, socio-economic rights are complex. They're about the art of the achievable and how best to manipulate the productivity of society (largely engendered by market capitalism) to pursue social goals without reaching unintended consequences. This is the same week as news reports show despite free tuition, Scotland consistently performs less well than England at getting kids from disadvantaged backgrounds into its Universities. Independence is about facing up to these questions and trusting the Scottish people to come up with the best, often very nuanced, answers. Political grandstanding about jam and honey is just the inversion of BetterTogether scaremongering about how we'll pay for everything. The best argument for independence is that Scotland can make these decisions for itself in a way that engages its people to a better extent than the United Kingdom can. It's not about the particular policies. So please. Stop talking about them.

There's nothing complicated about a two-question referendum

In response to this public statement from the Scottish Lib Dems/Willie Rennie.

I really don't see what all the fuss is about. The SNP have been completely clear about this.

First and foremost they want an independence question on the ballot. That is a question to the effect:

"Should Scotland become an independent state, Yes or No?" (legal wording ignored for the time being).

In addition to that, they want to have a question to the effect:

"Should the Scottish Parliament be given the range of powers so-identified as "Devo Max", Yes or No?" (again, the specific legal framing can be bashed out as and when)

If the poll produces the answer of "yes" to the first question the second question is irrelevant and should be ignored. Given they are two separate questions it isn't as though people are prevented from expressing their preferences. As Liberal Democrats we should trust the electorate to be able to tell the difference as and when it's laid out in front of them.

And the point about "following the 1997 model" is also a little bizarre. There is a similarity to the 1997 situation in that the questions are separate but related. But what Willie doesn't seem to realise is that the nature of the two questions means that the relevance of the second is, quite unambiguously, incumbent on a "No" vote to the first question rather than a "Yes". This is because they are alternatives rather than pre-requisites. If there is a "No" vote for Independence and a "Yes" vote for Devo-Max then the result is NOT the status quo, but Devo-Max. To suggest otherwise is a little like saying in 1997 "but what if they vote for tax powers but against a Scottish Parliament?" Don't be silly.

Whilst I have slight sympathy for the "consensus option" argument, in the context of how Willie and others have framed it I can't accept its validity. It is inconsistent to play the "which majority has the biggest mandate" card (i.e. say Devo-Max gets 70% and Independence 51%) and then also to say, as we appear to be, that a second question should not be on the ballot at all. If it is a straight Yes-No referendum with only one question, and independence wins it, we'll never find out if devo-max is the option offering the greatest degree of consensus because the question won't be asked!

In any case, as federalists and localists we should be working with the SNP on developing a presentable Devo-Max proposition. Get ourselves in the room and define the third option in terms of our own model of Home Rule instead of wrestling it from the ballot paper. As it stands, all we're serving to do is leave ourselves with nothing to say other than that we're the third-wheel of the Unionist "No" vote. That is unacceptable to me and an increasing number of Liberal Democrats. At the very least, I cannot bring myself to vote "No" to independence, as it infers an endorsement of the status quo. If a viable third option isn't on the table, I will be voting "Yes" to any independence question put before me (and not out of some great clamour for rosey notions of nationhood). If the Liberal Democrats won't champion an alternative, no one will.

Human Rights Quagmire

Policy Exchange have released a paper entitled "Bringing Rights Back Home" with a forward from Lord Hoffmann. The cut and thrust of their suggestion is that the UK government re-assess the relationship between domestic courts and the ECtHR, giving serious consideration to complete withdrawal from the latter. This would effectively reverse the obligation the UK signed up to in 1950 to allow Strasbourg to supervise its compliance with the European Convention on Human Rights. The forward comes from the enigmatic Lord Hoffmann who endorses considerable substance of the report. John Morgan has written an interesting critique of the report which is well worth a read. I sympathise with some of the sentiment on the specifics, but I fear the public debate about this has been derailed from the real issues.

The problem is that the prisoner voting debacle (alongside the Daily-Mail-esque responses to other human rights judgements) point the blame at the right institution but for the wrong reasons. The Hirst v UK and more recent Greens and MT v UK cases have instilled a lot of anger among people who clearly don't understand and/or value liberty and democracy. On the substance, the ECtHR and those anti-democrats are on two sides of the same coin: either you believe in universal suffrage or you don't and neither have adopted that standard to its logical extent. All adults should have full voting rights in elections (even prisoners) for one simple reason: if a state has authority to incarcerate you, that must be tempered by your right to choose those who make the laws which exercise that authority.

But let's not get distracted by the specifics. If Lord Hoffmann and the report itself are guilty of one thing, it is undermining their legitimate arguments about the competence creep of the European institutions by fudging it with the substance of the actual decisions made. To his credit, Hoffmann pains to point out that "the brief list of human rights in the 1950 European Convention, which now forms part of our own law, is, in general terms, admirable."

He goes on to argue that the "high-minded generalities" behind interpretation of the ECHR ultimately subverts the values by which member-states are governed. This, he believes, leads the ECtHR to micromanage unjustly the laws of member-states. With the greatest of respect he's got it the wrong way around.

The term "margin of appreciation" is often bandied about by European apologists as a defence for what essentially amounts to supranational judicial diktat. The harsh reality is that member-states have opted into something that shows little to no respect for national sovereignty. A new legal order exists and the degree of deference to national courts and legislatures is lamentable.

The European institutions are a bit like the grumpy neighbour who puts his garden fork through your football for kicking it over the hedge. They can't stop you playing football but they just can't resist damaging your property and grassing you up to your parents. Sure, they can't control the detail of national legislation and sure the national government can ignore their decisions (incurring huge compensation claims in the process). But that they can arrogate any sort of jurisdiction at all into the particulars of constitutional matters of a supposedly sovereign state simply cannot be satisfactory.

So here's my simple three-step solution. Unfortunately it's not going to be in-vogue. This issue is so horrifically bipolar that out-of-the-box alternatives just can't command any sort of popular support.

1. Withdraw completely from all European institutions, including the supervisory jurisdiction of the ECtHR
2. Codify the UK constitution, embodying the substance of the ECHR as absolute
3. Give UK courts and UK courts alone the power to interpret and apply the constitutional law

This kills to birds with one stone. For one, it would give the sovereign state unqualified control over its own constitution and destiny. This should appease those who feel the constitution is being moulded by those other than the people it affects. Secondly, and more importantly, the content of the constitution would make it much more difficult for those who have no respect for liberty and rights to subvert it. They would no longer have the excuse to fudge the constitutional merits with the constitutional authority.

No one has the courage to do this, though. The problem is that the UK legal order are too attached to our incoherent ad-hoc constitutional structure. We're too at ease upholding legal principles not because they are inherently good, logical and necessary but for another reason entirely. We uphold them because of the post hoc rationalising of judicial and political actors who vaguely thought something was right at a largely arbitrary point in time in the past. Its flexibility is undeniable and at times it has proved an asset. Yet it has come at the expense of an informed and considered discourse on freedom and democracy.

Only an unquestionably and purely sovereign constitution can solve that. In our ignorance we argue over the symptoms and miss the real problem.

"Can we have our ball back please, Mister?"