Part 6: A Scottish Constitution

 

 

A New Constitution for Scotland:

 

The 5th February 2013 will remain a key date on the independence campaign trail. On this day the current Scottish Government published its paper, Scotland’s Future: from the Referendum to Independence and a Written Constitution.

 

The importance of such a paper can be found from the title itself. Within the current United Kingdom framework, Scotland and the rest of the United Kingdom’s domestic states do not have a written constitution[1]. This is an almost unique set-up in a modern developed nation and one of the idiosyncrasies of the United Kingdom constitution. Indeed, there is no one codified constitution in the United Kingdom; with Acts of parliament, statutory instruments and common law all playing a vast role in the constitutional make-up of the state.

The current Scottish Government, signalled through its paper, has clear plans to change this should Scotland achieve its goal as an independent nation. This is hardly unsurprising; the current United Kingdom model is based on historical significance of both Royalty and Parliamentary Sovereignty. Although not impossible, it would have to be argued that as a newly independent state a more clinical codified constitution would be easier to implement than a residual continuation of the current United Kingdom framework.

 

A written constitution would certainly bring a newly independent Scotland into sync with most other developed nations around the world in terms of constitution, however, after 300 years of Union and the evolvement of the current constitutional framework in operation in Scotland it would certainly bring about vast changes; in particular for the legal system as the commitment to a written constitution does promise a significant constitutional break with the Westminster tradition and a new constitutional culture for Scotland.[2]

 

The Scotland Act 1998:

Scotland’s current constitution has features which set it apart from the United Kingdom constitution. This provides a good point of comparison for the discussion of our constitutional arrangements. At present Scotland has a constitution that is, ‘entrenched’? Effectively this means that Scottish Parliament cannot amend it and therefore the constitution, has a higher standing than the Parliament.

As things stand at present, it can only be amended by the Westminster Parliament, and then only with the agreement of the Scottish Parliament, as we saw with the Scotland Act 2012 where political agreement was needed before implementation. It would have to be argued that, due to the nature of this constitution, the Diceyan theory of sovereignty alluded to earlier is not quite as absolute as first thought.

Fundamental rights are built into the constitution or Scotland Act rather than set out in a separate Act of Parliament which may be amended by ordinary process of legislation and are judicially enforceable. Therefore, should the Scottish Parliament ignore the limits on its competence then the courts have the power to strike down its legislation as unconstitutional, which they have done on several occasions since the implementation of the Scotland Act.[3]

The information available thus far, denotes that any constitution for Scotland would be based on the Scotland Act. What we are told is that the founding legislation of an independent Scotland would be provided by combination of a constitutional platform and a refreshed Scotland Act. It would also have the power to provide for the continuity of laws: all current laws, whether in currently devolved or reserved areas, would continue in force after Independence Day until they were specifically changed by the independent Scottish Parliament.

The question that arises here is of the simplicity of a constitution for Scotland. It would have to be suggested that simply by removing the reserved areas from the current Scotland Act, and allowing competence in these areas for a Scottish parliament; that the Scotland Act in itself would be a wholly compatible constitution for an Independent Scotland.

 

A new constitution:

 

In order to understand the possibilities of a new constitution, we must first find an acceptable structure for independence to come about; with the current suggestion being that the UK Parliament would legislate,”…to acknowledge the end of its power to legislate for Scotland”. It is suggested that this would follow precedent of previous examples and continue in a similar way to the Malta Independence Act 1964 and the Statute of Westminster 1931. [4]

 

If this is indeed to be the case then it would leave the drafting of the new constitution completely in the hands of Scotland. The Scottish Government at present aims to deal with this by constitutional guarantee or entrenchment: ‘The constitutional platform, along with the refreshed Scotland Act, will be the founding legislation of an  independent Scotland and will not be subject to significant alteration pending the preparation of a permanent constitution by the constitutional convention’.[5]

 

Since the release of the original paper on the constitutional future for Scotland, the Scottish Government has released its White Paper named ‘ Scotland’s Future’ that states that during the transitional stage between the referendum and Independence Day on 24 March, legislation will be passed placing a duty on the Scottish Parliament elected in 2016 to establish a constitutional convention.

 

The possibility of a constitutional convention is not unique, and would have to be convened by a newly elected, independent, Scottish Parliament.[6] No Government papers have stated exactly how this should be achieved only that it,”…should engage all the people of Scotland in the process of nation-building and allow them a say in defining how our country will work”[7]

 

Throughout the paper there is reference made to the citizen-led assemblies and constitutional conventions convened in British Columbia (2004), the Netherlands (2006), Ontario (2007) and Iceland (2010) as well as the citizen-led constitutional convention convened in Ireland in 2012. The Citizens’ Assemblies in British Columbia and Ontario, for example, were composed of citizens selected randomly from the electoral role. This was a direct attempt to take constitutional decision-making out of the hands of elites, be they politicians or members of the fabled ‘civil society’.

 

The clearest example of this constitutional convention idea can be taken from Iceland. Due to the financial crash that seriously effected Iceland in 2008 a new Government was formed within the country that decided a new constitution should be drafted. In order to make matters fair and a broad enough spectrum of Icelandic society there was a vote to elect 25 members to sit on a constitutional assembly that would examine any proposals put forward by the Icelandic public and also academic experts.

 

The elections led the assembly to be made up of a large cross section of Icelandic society with lawyers, doctors, journalists, arts experts and economists all among the elected members. This was a very modern and free thinking way of developing a constitution and made the whole process as transparent as possible. The meetings of the assembly were also streamed online and involved a large aspect of social media in comprising ideas and crowd sourcing. It is difficult to say that such a system is either ideal or effective however it does show that when drafting a constitution the people of the country can now all be engaged allowing for a more accurate constitutional protection that the people of the nation feel are important to them; as opposed to the matter being left solely for politicians or any of the countries elite. [8]

 

All that we can certify from these proposals is that the writing of a new constitution would be a very open process. However, we must assume that the suggestions made by any current Government papers would be open to revision should new Parliamentary elections post-independence elect a Government with a different point of view. It could be argued that a constitutional convention may well decide not to include many of the rights that the current Scottish Government would, or opt for a republican rather than monarchical system of government, a subject matter that has not yet come to the fore of political debate.

 

Another issue that arises is how this new written constitution would be ratified. It would appear to make sent to follow the Icelandic example and hold a referendum on the constitution, but that would in turn leave a deficit in Parliaments powers as we know it today and a vast movement into making the constitution the single largest source of power in a new Scottish nation.

 

 

Further problems arise with the idea of a new constitution, the White Paper ‘Scotland’s Future: Draft Referendum (Scotland) Bill Consultation Paper’  claims that after independence there would remain a, “…social union with the remainder of the UK (that) would be maintained, with the nations continuing to co-operate on a range of matters”’. This is an idea followed in Scotland’s Future that some matters will remain unresolved until after independence as happened in the split between the Czech Republic and Slovakia.[9] At first this appears to be a straight forward idea, however, if after 2016 there would still be an on-going period of gradual separation then questions must be asked as to how this could be incorporated into a written constitution that is completed prior to complete separation.

 

The overall introduction of a written constitution is difficult to determine from theory to practice, inevitably there could be many ways in which any elected Scottish Government post-independence decide to introduce such a measure; if at all. It would arguably be the prerogative of an elected Government to continue without a written constitution per say; although this idea has not yet been paraded as optional and the written constitution the seemingly preferable route.

 

The overall impact of a written constitution is difficult to determine, after all, the details of the constitution itself would play a large part in determining its role in the Scottish framework. One major area that it would impact is the Scottish legal system. Although separate from the legal system in England and Wales under current constitutional arrangements it would have to be suggested that under a written constitution post-independence the Scottish legal system would be somewhat further detached from that of its neighbours and current form.

 

 

 

 

The Legal System and a Written Constitution:

If Scotland were to return a vote in favour of independence then there would be many differences in everyday life, including significant changes to the legal landscape. The Scottish Governments White Paper, as stated previously, is not the concrete direction that the country will take should it become an independent state. However, it has so far provided us with some idea as to what to expect.

Two of the most important changes affecting the legal system would be the introduction of a written constitution upon which the interpretation will ultimately be a matter for the courts, and the replacement of the current UK Supreme Court with a Scottish Supreme Court equivalent.

The white paper states that the High Court of Judiciary would remain for criminal matters with a new Scottish Supreme court, comprising the inner course of the Court of Session, being developed for civil and constitutional matters.[10] It is not clear if the Scottish Supreme Court would be a new court altogether, or simply transfer the last rights of appeal from the current UK Supreme Court to the current Inner House of the Court of Session.

Further uncertainty arises as to who the Judiciary would be in the new Supreme Court if we have elevated our best legal minds to the top of the court structure as it exists at present. Presumably, those same legal minds we would be charged with presiding over our Scottish Supreme Court, regardless of the form it takes.  If we do indeed have a new Supreme Court sitting above the Inner House of the Court of Session, as the last court of appeal, there would there be something of a domino effect in relation to positions in the Judiciary.

Inevitably, some of the current Inner House Judges would be moved into positions in the Supreme Court, creating vacancies in the Inner House that would have to be filed by from the Outer House, with the ultimate result being that current Sheriffs would be moved to the Outer House of the Court of Session. This would result in additional appointments along the chain of Judiciary and lead to cost implications for the budget of the Scottish Government. In that sense, it would have to be argued that maintaining the status quo giving effect of last appeal to the current Inner house is a more viable option.

At present there are two Scottish Judges sitting in the United Kingdom Supreme Court, it would be difficult to argue that there is a reasonable means to remove them from their positions however their purpose may come under question, sitting as Scottish Judges in a court that no longer hears any cases from Scotland.

Another interesting point raised by the idea of a Scottish Supreme Court is the timeframe for its execution. If the Scottish Supreme Court is set up before Independence actually takes place then any disputes arising from the transition to an independent Scotland would be dealt with by the Scottish Supreme Court rather than the UK Supreme Court.[11]

Nonetheless, the practical make-up of the Courts is a small implication in comparison to the workings of the Courts themselves. The Scottish Courts have never faced the idea of a written constitution before; the result of which would have ultimate ramifications potentially removing the current common law system within much of Scots law.

Should this indeed be the case, then the Courts role would be to interoperate the new constitution. The way in which this would be done is difficult to define considering the entirely theoretical context of the situation.

One way of interoperating a new written constitution could be developed from the current framework with regard legislation. One way, and arguably the only way, to interoperate a written constitution would be through an integrated approach.[12]

This type of approach involves a progressive analysis from judges to consider the ordinary meaning of words within the statute, or in this case constitution. This is followed by a close examination of the context and finally considers other possibilities if the ordinary meaning of the word would result in an absurd result. This type of approach is often termed as a unified contextual approach where the intention of parliament or the constitution is considered, not only through its words, but in the history and reasoning behind those words.

It is difficult to examine this process without relating it closely to the current idea of statutory interpretation; as arguably the similarity between written constitutions and a piece of legislation is high, with legislation being merely more selective and susceptible to the powers of Parliament.

This integrated, or unified contextualist approach allows for addition, omission or substitution of words by the Judiciary; and arguably more freedom.

This idea of a unified contextual approach, prioritising a contextually sensitive but literal reading of the words has been common place in the United Kingdom since 1975.[13] The idea has been developed since and allows for courts to consult Hansard to interoperate parliamentary intent.[14]

Lord Nicholls commented on such an approach as follows:

“… the purpose has to be inferred from the language used, read in its statutory context and having regard to any aid to interpretation which assists in the particular case. In either event, whether the purpose is stated expressly or has to be inferred, the exercise is one of statutory interpretation”.[15]

This idea is backed up by Lord Denning:

“We do not sit here to pull the language of Parliament to pieces and make nonsense of it. We sit here to find out the intention of parliament and carry it out and we do this better by filling in the gaps and making sense of the enactment…”[16]

Although these statements are made with regard to statutory interpretation, they could easily be applied to the role of the Scottish Judiciary post – independence. A written constitution would inevitably lead to a requirement to interoperate similar to the current legislative framework; only on a grander scale and with more implications. The constitution would be the highest source of legal authority, not particularly Parliament in Scotland.

There is also a requirement that cases be dealt with in an ad-hoc basis if the result, even although constitutionally sound, would lead to a catastrophic result. There is an example of this in current statutory interpretation where an applicant was refused a copy of his birth certificate on the basis that the information gained from such would help him murder his mother. Legally, there was nothing to stop the birth certificate being granted, but the courts had to find a way to prevent such an absurd result, stating:

“Clearly, in this case, it would be absurd for a court to insist on implementing the clear words used by Parliament without having any thought to the consequences”.[17]

It would have to be argued that, with a written constitution and therefore more firm guidelines that fall out with our current common law structure, this style of approach would be key in determining the boundaries of such a codified system.

The effect of a written constitution on the legal system of Scotland should not be treated lightly, the current system, established over many years; has deep roots in the constitutional framework of Scotland. The idea of uprooting such a stable part of society so quickly could leave many unintended consequences with only the power of the judiciary a potential weapon to prevent absurd results, especially within an initial period where many decisions that are seemingly straight forward in the current framework may be challenged under the new constitution. Without the drafting of a constitution at this stage it is very difficult to establish exactly where such challenges may occur. However, what we can do is debate how the judiciary would deal with such a situation with this idea of a unified contextual approach stemming from current statutory interpretation an ideal that could be incorporated into the constitution of a new Scotland.

 

[1] Scottish Government, ’Scotland’s Future :from the Referendum to Independence and a Written Constitution,( February 2013, APS, Scotland) 1.5

[2]  S.Tierney, ‘The Scottish Constitution After Independence ’ , (UK Const. L. Blog , 2nd December 2013)

[3] Imperial Tobacco Ltd v Lord Advocate (Scotland) [2012] UKSC 61

 

[4] Scottish Government, ’Scotland’s Future :from the Referendum to Independence and a Written Constitution,( February 2013, APS, Scotland) 2.13

[5] Scottish Government, Scotland’s Future: Your guide to an independent Scotland, (November 2013, APS, Scotland) P.338

[6]Scottish Government, Scotland’s Future :from the Referendum to Independence and a Written Constitution,( February 2013, APS, Scotland) 1.7

 

[7] Scottish Government, ’Scotland’s Future :from the Referendum to Independence and a Written Constitution,( February 2013, APS, Scotland) 1.6

[8]Thorvaldur Gylfason,’From Collapse to Constitution: The Case of Iceland’, (CESIFO WORKING PAPER NO.3770, June 2012)

 

 

[9] Peter C. Oliver, ‘The Constitution of Independence: The Development of Constitutional Theory in Australia, Canada, and New Zealand’, (Oxford, OUP, 2005)

 

 

[10] Scottish Government, Scotland’s Future: Your guide to an independent Scotland, (November 2013, APS, Scotland)  P.505

[11] Barbara Bolton, How would the Scottish court system be affected by independence?(4th September 2013)
< http://thinkandtalkwithtods.com/2013/09/04/how-would-the-scottish-court-system-be-affected-by-independence/&gt;

 

[12] Sir Rupert Cross, Statutory interpretation, (3rd Edn, Butterworths,1995)

[13] Maunsell v Olins [1975] A.C. 373

[14] Pepper v hart [1993] A.C. 593

[15] Attorney General’s Reference (no.1) [1988]

[16] Magor and St. Mellons v Newport Borough Council (1952) HL

[17] Registrar General (Ex-parte Smith), R v (1991) CA

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