Category Archives: Scotland

Neil Walker: The Uncelebrated Union

NeilLast week’s first televised debate of the referendum campaign revealed few surprises of tone or content, even if the outcome disappointed pro-independence hopes of a momentum-building surge in support. As expected, Alex Salmond concentrated on the core message of political self-determination, and the prospect of the new Scotland embracing a model of social and economic solidarity that London is increasingly unable or unwilling to deliver. With equal predictability, Alistair Darling for ‘Better Together’ insisted upon the precariousness of the pro-independence position on currency, placing this at the suggestive centre of a wider narrative contrasting the vulnerability of a fledgling Scottish polity to the reassuring solidity of the existing British state with its broader institutional shoulders and deeper pockets. It was not, truth be told, a good night for the ‘ vision thing’. Salmond seemed somewhat less energised and less sure-footed than usual in his portrayal of the promised land, perhaps inhibited by the artificial format of the TV duel and by the strong pre-debate expectations that his quick wits and populist style would win the day hands-down. For his part, Darling, true to form, simply chose not to let his political imagination off the leash. He stuck to a narrow brief, defending the status quo, or at least a soft focus version of it, and concentrating his fire on the supposed gaps and shortcomings of the ‘Yes’ case.

For Better Together, as has so often been the case over 30 months of campaigning, what was not said was more interesting and more revealing than what was. One particularly deafening silence, much commented on in the immediate aftermath, surrounded Darling’s refusal, despite many repeated invitations from his opponent, to offer an explicit endorsement of the proposition that Scotland could be successful as an independent country. In an episode that rapidly descended into Paxmanesque political pantomime, and which hardly flattered either party, Darling’s discomfort was that of someone torn between a desire not to offer a succulent soundbite to the ‘Yes’ campaign (‘Darling makes case for independence’), and an anxiety not to appear dismissive of the potential of his fellow Scots.

There was, however, another telling silence, less apparent, quite unremarked in post-debate commentary, but ultimately of deeper significance. On more than one occasion, Darling referred to Scotland as ‘part of something larger’. Yet when he did so, he omitted to give that larger entity a name. This might seem trivial. After all, everyone knows where and what he was talking about –   who the ‘we’ are who, in his view, are and ought to remain Better Together. And so, perhaps, we should read nothing more into his silence than a (reasonable) assumption of the self-evidence of his object of desire. Yet that would be too simple an explanation. For Darling’s reticence can also be seen as a mark of reluctance, even of unease. It betrays a sense that the state we are in is best left understated, so to speak; and that it might be to the symbolic disadvantage of the ‘No’ campaign to apply a label to the entity whose preservation they seek.

An appreciation of why this is the case takes us to the heart of the question of Scotland’s constitutional future, not just over the vital final weeks of the referendum contest but also in the years to come.

What’s in a name?

The awkwardness begins with the sheer range of candidate labels. Was Darling talking about – or rather not talking about – Britain, or the United Kingdom, or perhaps ‘The Union’? As Aileen McHarg reminds us in a recent post, these are not interchangeable terms, and the uncertain movement between them is a symptom of Better Together’s indecision over whether and how to present a holistic case for the defence. The terms may refer to ( more or less) the same geographical unit, but each speaks in a somewhat different register. Crudely, we may think of Britain as the cultural entity, the UK as the institutional entity, and the Union as the abstract idea – the constitutional key to what these islands hold in sovereign common. Clearly, those different registers – cultural, institutional and constitutional – overlap, and they also closely interact, but they do nevertheless reveal different levels of understanding of our wider political community. And, as we shall see, Better Together is not entirely comfortable operating at any of these three levels.

Take first, Britain. The long decline of Britishness as a dominant national identity from the 19th century high water mark of Protestantism and empire is well-known. As recently as 1970, asked to choose a single nationality as many as 39% of Scots identified as British. By 2013 that figure had fallen to 23%. The significance of this cultural fact in framing the referendum debate Is often overlooked just because it is nowadays so well established. But it can hardly be overestimated. As the Edinburgh Agreement confirms, it is Scotland’s referendum to decide, not Britain’s, and the arguments on both sides – from Better Together every bit as much as the nationalists – always appeal first and foremost, and often enough solely, to the Scottish rather than to the British national interest in making their case.

Yet that is not to say that a cultural sense of Britishness is irrelevant to the debate. Only around a quarter of contemporary Scots assert an exclusively Scottish identity, the rest admitting at least to a residual sense of British identity, and more than one third regularly claiming their British identity to be as strong if not stronger than their Scottish identity.   Migratory patterns further complicate cultural identity. Over 800000 people born in Scotland live elsewhere in the UK, mostly in England; and according to the Scottish Government’s recently published draft interim constitution, those members of that sizeable diaspora who presently qualify as British citizens (i.e., nearly all) would automatically join the vast majority of the 5.3 million Scottish residents as citizens of a newly independent Scotland, including the half million Scottish residents who were born in England (discussed by Nick Barber and Jo Shaw). Ties of family, friendship and work link many people across the four nations well beyond this considerable population of internal migrants, and together with shared language and heritage, and a wide array of cultural institutions from the BBC to the British Lions, and from the royal family to the Trades Union movement, feed a resiliently self-reinforcing sense of affinity and common sentiment.

So while it is a dominant identity for relatively few, being British remains an integral part of the cultural self-understanding of most participants in the referendum. It follows that even if it is emphatically the Scottish rather than the British national interest that is at stake in this referendum, some attention must be paid to British values, and to the value of Britishness, as part and parcel of any attractive conception of that Scottish national interest. No-one understands this better than Alex Salmond, and that is why he has been so ready to extol and to endorse the enduring virtues of British culture to audiences both North and South of the border. It is also why he has been at pains to offer reassurance about Scotland’s post-independence commitment to many aspects of ‘social union’, not least the 400 year old monarchical union. For Better Together, however, despite such nationalist concessions, this remains a delicate subject. Indeed, the generosity of the endorsement of a residual Britishness by Scottish nationalists, in particular by the nationalist leadership, can even serve to highlight Better Together’s own difficulty in painting a more robust picture and a more confident sense of the place of British culture in Scottish political life, and so further expose the tension between culture and polity in any vision of a continuing British state.

What of the United Kingdom? Surely as we move from the cultural software to the institutions that supply the hardware of the modern state the ‘No’ campaign find themselves on firmer ground. For here we are talking about the deeply embedded and closely enmeshed political and economic infrastructure of a 300 year old state; about its common monetary and fiscal framework and financial institutions, its NHS and wider system of social welfare, its dense network of common regulatory agencies, its armed forces, its global diplomatic presence, and its membership of key international institutions from the EU to the UN Security Council, and from NATO to the G8 and G20. And certainly, the kernel of the campaign case for the status quo, as underlined by the formidable sweep and detail of the Scotland Analysis papers of HM Government and by the tendency   of   Better Together spokespersons to disaggregate the case for the UK into its many particular benefits, has been here; in the advantages that accrue from belonging to something tried and tested, bigger and more resourceful, and with a long established international position and global reputational capital.

There is much in all of this, and it may well provide the decisive platform for a ‘No’ vote on September 18th. Yet there is an obvious snag here too. For the stress upon results, what is sometimes called ‘output legitimacy’, leaves the ‘No’ side exposed to counterclaim, and also threatens to cast its overall approach in an unflattering light. To begin with, if it is the record of the British state which supplies the case for the defence, then it is bound to be the entire record, and, of course, there is much both in the UK’s imperial past and in its long post-imperial decline and repositioning that can be singled out for criticism by those who are inclined to emphasise the downside; and once debate is joined at this level, there can be no copper-bottomed, position-independent way of demonstrating that one side’s assessment of the balance sheet is superior to the other’s.

In addition, a results-based assessment has a necessarily contingent quality. Success depends upon performance and performance depends upon the presence and maintenance of favourable   preconditions. On the one hand, this leaves the defenders of the British state vulnerable to arguments that these conditions have been eroded and circumstances have changed; that the UK   as an integrated project in some sense or other has been ‘broken’ or is on the verge of becoming so, whether because of declining financial and diplomatic muscle in a world still suffering the shock waves of the financial crisis. or a congealed neo-liberal consensus at the centre, or the prospect of a UKIP-fuelled marginalisation or exit from Europe. On the other hand, that same preoccupation with successful outputs, and with the conditions of success, also feeds what we might call the tendency towards counterfactual negativism in Better Together’s portrayal of the Yes case. Whether on currency Union, or membership of the EU, or future defence contracts, the No campaign is drawn by its results-orientation to scrutinise closely the basis of the nationalist boast that they could achieve equivalent or better outcomes in another possible world. And while close scrutiny of hypothetical claims is understandable, and perfectly reasonable, it does also help fertilise the view, enthusiastically cultivated by the other side, that the No camp is motivated by narrowly instrumental considerations; that Project Fear and Mission Balance Sheet are its only and small-minded answers to the expansively regenerative politics of nationalism.

Which brings us third, and finally, to the idea of Union. Can this idea – this most abstract rendition of the state we are in – supply the deep constitutional code that holds the cultural pieces of Britain together, and which makes the institutional framework of the UK and its attendant benefits more than the sum of its parts? In some respects, the idea of Union offers an unlikely candidate for this task. As Colin Kidd has ably demonstrated (in his Union and Unionisms ), the history of unionism in these islands is not a singular one, but a complex tapestry of sometimes divergent, sometimes interfluent themes. In particular, the banal conception of Union and unionism – especially well-known in Scotland and Ireland – as shorthand for the single, consolidated and historically both largely centralised and imperially expansive British state, is only one part of the story. The other main version of unionism has been generally less prominent over the modern era, yet it is both etymologically persuasive and more consonant with the everyday meaning of the term. It begins with a much earlier pre-1707 Scottish impulse to address relations with the large English neighbour on the basis of presumptive equality, continues through various iterations over the centuries of legal Union, and has acquired renewed resonance in very recent times. On this alternative view, unionism is counterposed not to nationalism and to the independence of the component parts, but to an idea of English empire over the territory of the British Isles and beyond. The two versions of unionism, then, do have in common the preservation of the British state, but while in the first version the state prevails by denying or disdaining nationalist sympathies, in the second and more progressive version it prospers by accommodating and in significant measure embracing such sympathies.

Arguably, it is the second version of unionism that supplies a more persuasive, if still only partial, reading of recent British constitutional history. Unarguably, it is the second version that must be deepened and amplified if the Union is to prevail in the longer term. The distinctive components of this progressive unionism are both structural and ethical. In structural terms, the Union offers a very special model of constitutional design, incorporating a rare idea of constitutional authority. The Union state is understood – at least ideally if not always strictly as a matter of historical record – as a conditional compact between sub-state national authorities, each of which retains or (in the less idealised version) rescues and regains some core of constituent power – some claim of national right – to revisit the terms and the very existence of Union. The Union state, then, emerges and matures through a process of evolution and according to the shifting balance of constitutional forces, rather the unfolding of a single master project. Equally, its form always remains provisional, open to further development rather than a matter of finality. And its shape is inevitably asymmetrical, reflecting the different composition and aspirations of its national parts – what Michael Keating (in Plurinational Democracy) calls its ‘plurinational’ rather than its ‘multinational’ pedigree – rather than the careful symmetry of the units we find in classical federalism. Last, and most fundamentally, the Union state, progressively understood, must draw a distinction between constituent power and constituted authority – or between (plural) political sovereignty and (singular) legal sovereignty. The coherence of the polity requires that a particular settlement of legal authority hold firm at any particular time and cannot lightly be overturned, but the need to respect the equality of the national parts also requires – whether or not as part of a formal constitutional amendment procedure – that this settlement remain open to revision in a way that allows and respects the renewable expression of popular sovereignty (normally indicated through referenda) by these national parts.

The ethical dimension of a progressive unionism is perhaps even more under-articulated, but it has recently been given thoughtful articulation by Gordon Brown. Brown insists that it is a necessary rather than a contingent feature of the British state, as well as a distinct advantage over an independent Scotland, that it be a ‘Union of social justice.’ That is to say, there should be and should remain an ‘insurance policy’ between the national parts enabling, through common fiscal instruments, whatever redistribution is necessary to guarantee common standards of welfare across the UK as a whole wherever and whenever resources and risks are otherwise unequally divided. Clearly, this inclusive commitment to a basic threshold of social justice requires some measure of common investment in values such as egalitarianism, community spirit and social responsibility – social democratic standards that Brown reminds us are, by any historical measure, as much English as they are Scottish, Welsh or Irish – but it also requires this to be matched by the deep political tolerance of diversity necessary to give effect to the structural dimension of Union. That is to say, a progressive unionism must find a way of reconciling solidarity with respect for different forms of cultural life and their political expression. And in so doing it must recognise and manage the following difficulty; that each cluster of values is both the condition of and a constraint upon the other. Solidarity is required for a settled order of political pluralism to prevail, but the more pluralistic – the more diversely accommodating – the polity, the greater the challenge there is to generate such solidarity. Equally, without robust recognition of national diversity in today’s Britain, the trust and respect necessary to sustain cross-national solidarity will not be forthcoming, yet the political arrangements necessary to deliver the solidarity dividend themselves set limits on how far political diversity can be accommodated.

The case for the Union state as an answer, however complex, to the internal pluralism of the British state is strengthened by it suitability to the wider political environment. The Union idea may represent a departure from the constitutional orthodoxy of the modern state, but its more decentred and negotiated understanding of sovereignty and its provisional and iterative approach to constitutional agreement reflects and adapts to recent developments in geopolitical circumstances. For the broader constitutional picture in a globalising age is not simply of a two-level power system, but of a multipolar pattern. Constitutional authority in and for the Union today is in fact balanced precariously not just amongst London, Edinburgh, Cardiff and Belfast, but also between these sites and Dublin, Brussels ( EU political institutions), Luxembourg (EU Court of Justice) and Strasbourg ( European Court of Human Rights). Legal jurisdiction in this densely interconnected environment, therefore, comes not in organically compact blocks but is salami-sliced across a range of political settings. In turn, that multipolar authority system has encouraged a more general underlying   condition of   ‘constitutional unsettlement’ (see N. Walker, “Our Constitutional Unsettlement” (2014) Public Law 529). With so many constitutional sites co-implicated, and with no undisputed ‘authority of authorities’ to plan or co-ordinate their interaction, the course of constitutional change becomes unpredictable, with the resolution of each arena of negotiation and disputation heavily dependent upon similarly unresolved questions in other arenas. So, as we have seen, uncertainty about Britain’s future in the EU, and to a lesser extent the ECHR, and similar doubts about an independent Scotland’s European prospects, have become staples of the referendum debate, just as, reciprocally, the referendum result will significantly affect the stakes and influence constitutional (re)negotiation in all these other areas.

All in all, the idea of the Union state, especially under the flexible arrangement of the unwritten constitution, seems a good fit for this fluid scenario. In particular, with its   recognition of the inevitably of power-sharing, and in its emphasis upon the open-ended political treatment rather than the definitive legal resolution of diverse constitutional claims, the a Union state can speak a language of relative rather than absolute authority, of shifting rathe than final settlement, that is appropriate to our time and place.

The Union’s new vows

There remains, of course, a gap between such a progressive unionism in theory and the Union in practice. The Union today remains largely uncelebrated, as double-edged a source of comfort and inspiration for the defenders of the state we are in as are the ideas of Britain and the United Kingdom. In part this is because of the legacy of traditional unionism – the banal, knee-jerk version that rejects rather than encourages accommodation of political and cultural nationalism below the state. In part, too, it is because the difficult work of rethinking the Union in a more rounded fashion requires a kind of cross-party engagement and reasoned, inclusive dialogue that has not found an easy place in the referendum campaign. Significant progress has been made. The Scotland Act 2012, negotiated between Westminster and an SNP-led Holyrood, is gradually rolling out more fiscal powers and new fields of competence to the Scottish Parliament, while the three main pro-Union parties have all published plans for further constitutional reform, and have agreed to develop these under a joint platform post-referendum. But much of this activity has been reactive, a second agenda behind the main priority of fighting the referendum in more critical and defensive mode,

Yet if the new progressive unionism outlined above is to be taken seriously as a long-term solution to Scotland’s constitutional question, then it must do more. The structural and ethical questions it asks offer new opportunities to the political imagination, but they also pose significant challenges. More work is needed not just to convince sceptical nationalists that their aspirations can be accommodated, but also to commit effectively to the procedures of ‘joined up’ constitutional reform the Union needs if it is to integrate concern for the Scottish question and for the sub-state national question more generally, with all the other aspects of the multipolar constitution.

The task   of achieving and sustaining a long-term commitment among Unionsits to progressive unionism should not be underestimated. Nor should anyone understate the difficulty of selling to a wider audience such a project, whose core message is a rejection of the false clarity of some versions both of nationalism and of traditional unionism, in a manner that is itself sufficiently clear and appealing. One thing is certain, however. If the British/UK/Union state to to succeed in promoting a grown-up and sustainable constitutional model for the 21st century, it has to get used to declaring its own name and aim in public.

 

Neil Walker is Regius Professor of Public Law and the Law of Nature and Nations at Edinburgh University.

 

This post originally appeared on the Scottish Constitutional Futures Forum Blog.

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News: E-Book on Scottish Independence Released

The ESRC Future of the UK and Scotland project has published a book which seeks to provide voters with information that may help them in deciding how to vote on 18 September.

‘Scotland’s Decision: 16 Questions to think about for the referendum on 18 September’ is aimed in particular at undecided voters. It takes 16 questions which are central to the debate and asks impartial observers to address these. It does not aim to provide definitive answers, or suggest which way to vote, but rather seeks to enable voters to judge better the arguments put by each side.

Among the many issues it covers, the book addresses: the economy in the event of a Yes vote; the currency arrangement for an independent Scotland; how long negotiations would take; assets and liabilities; if the vote is No, what powers might Scotland get; Scotland’s role in the world; an independent Scotland and the European Union; what the constitution of an independent Scotland might look like and how it would be made; social and welfare policy; immigration policy; pensions; whether or not independence would be good for business; and what independence would mean for the energy markets.

It is downloadable here and here as an e-book.

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Nick Barber: After the Vote: The Citizenship Question

Nick1Three intertwined questions relating to citizenship will become of great importance if there is a ‘yes’ vote in the Scottish referendum. First, who will become, or be able to become, a Scottish citizen? Secondly, who will remain, or be permitted to remain, a United Kingdom citizen? Thirdly, and relatedly, who will become, or be permitted to become, a dual citizen, a citizen of both Scotland and the United Kingdom? Aside from a very good paper by Jo Shaw and a Scotland Analysis Paper produced by the British Government, these questions have not received the attention they deserve.  The questions around citizenship are given added significance because of the role, in the background, of European citizenship. European citizenship is dependent upon the individual holding citizenship of a member state: those in the United Kingdom are currently European citizens because of their UK citizenship. If Scotland votes for independence it is likely – it is almost a certainty – that there will be a gap between independence and Scotland joining the European Union. During this time Scottish citizens would not be European citizens unless they were also citizens of the United Kingdom (that is, citizens of the remainder of the United Kingdom after independence).

Who will be a Scottish Citizen?

Perhaps surprisingly, the Scottish Constitutional Convention that is intended to draft a constitution for Scotland will not be assembled until after independence – and so the citizenship question will need to be settled before it sits. Like a number of important issues, it seems citizenship will not be a question that the Convention will be empowered to answer. The Draft Interim Constitution gives an indication of those who will become, or who may apply to become, Scottish citizens. The Draft Interim Constitution needs to be treated with a little caution as it embodies the view of Scotland’s SNP controlled government; after a ‘yes’ vote it is possible that the Scottish Parliament might revisit the citizenship question.

Section 18 of the Draft Interim Constitution identifies the following groups as automatically receiving Scottish citizenship or as entitled to apply for citizenship:

(1)        The following people automatically hold Scottish citizenship, namely
(a) all those who, immediately before Independence Day, hold British citizenship and
either
(i) are habitually resident in Scotland at that time, or
(ii) are not habitually resident in Scotland at that time but were born in Scotland,
(b)  any person born in Scotland on or after Independence Day if either of the person’s parents, at the time of the person’s birth—
(i)  holds Scottish citizenship, or
(ii)  has indefinite leave to remain in Scotland, and
(c)  any person born outside Scotland on or after Independence Day if
(i) either of the person’s parents, at the time of the person’s birth, holds Scottish citizenship, and
 (ii) the person’s birth is registered in Scotland.
(2) The following people are entitled to claim Scottish citizenship according to the prescribed procedures, namely
(a)  any person born in Scotland on or after Independence Day if either of the person’s parents meets the prescribed requirements,
(b)  any person with
(i) a prescribed connection by descent with a person holding Scottish citizenship, or
(ii) any other prescribed connection with Scotland.
(3)        A person holding Scottish citizenship may also hold other nationalities or citizenships at the same time.
(4)        Further provision about entitlement to Scottish citizenship is to be made by Act of the Scottish Parliament, and “prescribed” means prescribed by or under such an Act.
(5)        Such an Act may, in particular, include provision supplementing, qualifying or modifying the provision in this section.

 

The first point to make about these criteria is that they are quite extensive (though not quite as extensive as the original proposals found in the Scottish White Paper). There are about 810,000 people who were born in Scotland but live elsewhere in the United Kingdom – that is equivalent to roughly a sixth of the population that currently lives in Scotland. There might be a large number of people who discover, to their surprise, either that they have been granted Scottish citizenship without their knowledge or can acquire citizenship on application. It is conceivable that the large number of Scottish citizens living outside of Scotland may present challenges in the future: would they be entitled to vote in elections, or, if it is held, in a referendum on a draft Scottish Constitution?

The second point to note is that these criteria have been drafted in ignorance of the United Kingdom’s (that is, the remainder of the United Kingdom after independence) view on citizenship. This will be discussed in the next section, but it is possible that the UK will be unwilling to allow so many of its citizens to hold dual citizenship with Scotland. If so, the Scottish citizenship rules may need to be modified to prevent the automatic conferral of citizenship on people who have no wish to become Scottish citizens and wish to remain UK citizens.

Who will be a UK Citizen?

The Scottish White Paper assumes that UK citizenship will persist after independence. If this were correct, on the day that Scotland becomes independent all Scottish citizens would also be UK citizens. Between six or seven million people would then become dual Scottish/UK citizens. British citizenship law is quite generous in respect of dual citizenship: in general it allows its citizens to hold citizenship of other countries. There are, however, a number of reasons why Scotland might be treated differently, at least initially.

First, it is unusual for a state to have quite so many of its citizens holding dual citizenship. Classically, citizenship is presented as the highest form of political membership that an individual can possess: their membership of the state.  States are partly characterised by the claims they level over their members: they present themselves as exercising supreme authority, claiming to have the final say about the obligations of their members, to be the final determiner of political and personal disputes. Citizenship is a form of state membership that brings with it a share in the governance of the state: it is the citizens, through the institutions of the constitution, that determine the decisions and policies of the state. Understood in this light, dual citizenship is inherently problematic. The individual is a member of two states, states animated by two distinct citizenries, which make competing claims to supremacy over her.

In the real world, of course, this is rarely a problem. Having a small number of people within the state who possess dual citizenship does not significantly impair the state’s capacity to coordinate action within the community. But if all, or a large portion, of the Scottish citizenry were also citizens of the (remainder of) United Kingdom, the potential for tension would be far greater. The capacity of the United Kingdom to control its people – to make good on its assertions of authority – would be significantly impaired. And, by derivation, the capacity of the citizens of the United Kingdom to control their state would be reduced.

The converse of this observation also presents difficulties. Whilst the state asserts authority over its citizens, it purports to exercise this authority to advance their wellbeing: the welfare of its citizens is, or should be, the primary concern of the state. If Scottish citizens were also UK citizens, UK institutions would have a direct interest in the ways in which Scottish citizens were treated. In such a situation, the UK could properly take an interest in the decisions of Scottish institutions; indeed, it could be argued that it would be under a duty to do so.  The overlap of citizenship could, then, generate conflict between the two states.

Furthermore, British citizens who live abroad are entitled to vote in elections. Under the Representation of the People Act 1985, a British citizen who has lived abroad for up to fifteen years can register to vote in parliamentary elections. Registration is tied to the last address at which the person lived – and this requirement might be enough to ensure that UK citizens in Scotland are not able to vote in elections (their place of residence now being part of a foreign country). But there are the seeds of an interesting legal challenge here. The driving purpose of these provisions of the RPA 1985 was to give citizens living abroad the vote. The registration requirement was included to ensure that this right could not be manipulated by political parties, who might be tempted to fill up marginal seats with friendly ex-pat voters. It could be argued that where a person’s place of former residency has disappeared, she should be permitted to register in the constituency nearest to that location. The Human Rights Act might be invoked to support or require this reading. Protocol 1 of the European Convention on Human Rights has been construed to include the right to vote in elections. The European Court of Human Rights has accepted that states can place residency requirements on the right to vote – it is permissible to deny those settled in a foreign country the right. It could be argued, however, that a law that gave the right to vote to a UK citizen living in Spain, but denied the right to a UK citizen in Scotland amounted to discrimination under Article 14 of the European Convention on Human Rights: if the UK gives this right to some citizens who live abroad, it must accord the same right to all such citizens.

Finally, dual citizenship raises a broader question of fairness. Whilst all Scottish citizens would maintain their UK citizenship, those living in the rest of the UK who did not satisfy the Scottish citizenship test would not be able to acquire dual citizenship in return. Scottish citizens would gain the benefits of UK citizenship – being able to move freely between the two states, benefiting from consular representation overseas, perhaps being able to vote – whilst most UK citizens would not receive the benefits of Scottish citizenship.

For these reasons, it may be the case that the UK, at independence, will not initially permit its citizens to hold dual citizenship with Scotland. People alive at the moment of independence may have to choose: they can be either UK citizens or Scottish citizens. Such a requirement need not be permanent. Once the two citizenries are relatively well-defined, people born after independence could then benefit from the normal rules that govern joint citizenship – with a modest number of dual citizens emerging over a long period of time.

The European Dimension

A few paragraphs ago, I commented that dual citizenship is unusual and, in some ways, problematic. European citizenship might be thought to be a form of dual citizenship writ large – it is held by all citizens of the Member States of the European Union, and is dependent upon their national citizenship. This duality has spurred considerable discussion of the nature of citizenship in European scholarship: does European citizenship show that the institution of citizenship can transcend the state, or is it window-dressing, an effort to persuade the peoples of Europe to accept the governance of the European Union? For our purposes, though, it is the link between UK citizenship and EU citizenship that is of importance.

If the tight timetable for independence following a ‘yes’ vote in the referendum is adhered to, it is almost certain that Scotland will become an independent state before its accession to the European Union. It is also almost certain that the remainder of the UK will remain a member of the European Union after independence. There will be a period when the UK is a member of the EU, but Scotland is not. Consequently, the assertion in Section 25 of the Draft Interim Constitution that Scottish citizens will also be European citizens will be ineffective: conferral of European citizenship will not be within the jurisdiction of the Scottish state at that time.   The gap between independence and accession will necessitate the creation of temporary legal structures to enable Scotland to operate as if it were a member state, devices which, at a minimum, ensure the Scottish people continue to enjoy the basic rights that membership of the EU brings.

There are a number of ways in which this might be achieved, but one which may tempt some EU institutions – especially the European Court of Justice – is by preventing the UK removing the citizenship of those who are also citizens of Scotland. If all Scottish citizens were also UK citizens they would continue to enjoy the rights conferred by the European Union – in particular, they would continue to benefit from the right to freedom of movement within the territory of the Union. In the case of Rottmann the European Court of Justice held that as the removal of national citizenship caused the loss of European citizenship, decisions of Member States regarding the removal of citizenship were reviewable under European Law. If the United Kingdom were to attempt to strip Scottish citizens of their UK citizenship it is likely that this would be subject to review in the courts, and likely that the ECJ would be asked to rule on the question. It is possible, at least, that it might conclude that the removal of European citizenship from such a large number of people runs contrary to European Law.

Conclusion

There are no easy answers to the citizenship questions that would be raised by a vote for independence. If the UK were to permit Scottish citizens to retain their UK citizenship, problems would be raised around the participation of Scots in UK parliamentary elections. If, as is, I think, more likely, the UK were to require people to choose between UK and Scottish citizenship, the decision may run into problems with European Law.

Nick Barber is Associate Professor of Constitutional Law at Oxford University, and a Fellow of Trinity College, Oxford. 

Suggested citation: N. W. Barber, ‘After the Vote: The Citizenship Question’  U.K. Const. L. Blog (4th August 2014) (available at  http://ukconstitutionallaw.org).

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Katie Boyle and Stephen Tierney: Human Rights in Transition: The Proposed Interim Constitution for Scotland

KatiestierneyThe site has recently seen posts addressing the UK’s relationship to the European Convention of Human Rightshere and here. In this post we will seek to extend the debate to the issue of Scottish independence. The framework for human rights protection contained in the Scottish Government’s recent publication, the Scottish Independence Bill: A Consultation on an Interim Constitution for Scotland (see Boyle, Tierney and McHarg) is notable in promising a more robust form of legal protection for fundamental rights (what we might call a ‘rights affirmative’ constitutional arrangement) at a time when the prevailing mood in Whitehall is for a restriction in the role of the courts.

In substantive terms the rights to be protected in the interim constitution of an independent Scotland are those contained in the European Convention of Human Rights (ECHR), which thereby becomes part of the Bill’s foundational constitutional framework. In this sense the arrangements mirror those of the Human Rights Act regime. But the constitutional status of these rights is potentially radically different. If the Bill is viewed through a Westminster prism as a ‘constitutional statute’ (see page 62 of the consultation paper) then the rights it contains could be subject to amendment during the period of transition to a permanent constitution if the Scottish Parliament expressly chooses to repeal or amend the Bill. However, there is some ambiguity in the Bill and broader consultation paper, since at other times it seems to be the intention of the Scottish Government that rights contained in the Bill will not be subject to parliamentary authority, but will be, in effect, entrenched. And in any case rights entrenchment is likely to be solidified following the work of the proposed Constitutional Convention process and the adoption of a new permanent written constitution. The consequence of these two processes is that the constitutionalisation of human rights – both in transition and in an envisaged permanent constitution – will require a reconceptualisation of the legislative role in Scotland and the drawing of an ever more stark contrast between the relationship of courts v legislature in Scotland on the one hand, and that between courts and Parliament in London on the other. Such a radical realignment of institutional powers should be made clear to citizens, enabling an open and inclusive debate in Scotland concerning how or indeed whether human rights should be protected from legislative will in a new Scottish constitution.

Section 26(2) of the proposed Bill provides that Scots law is of no effect in so far as it is incompatible with Convention rights. Page 56 of the consultation proposes that the Human Rights Act 1998 and Scotland Act 1998 be amended to ensure that those matters currently reserved under the Scotland Act 1998 and legislation currently exempt from an ultra vires declaration (i.e. primary legislation emanating from Westminster) should, under the Bill, be subject to the same compatibility requirements under a revised Scotland Act. This would extend the protection of those rights contained in the European Convention of Human Rights from devolved to reserved matters and create a more robust human rights framework than is currently available under the Westminster system. The courts would be able to declare legislation ultra vires the interim constitution should a breach of Convention rights be established, rendering the contravening provision or act unlawful and of no effect. This is clearly a stronger remedy than the declaration of incompatibility option available under section 4 of the Human Rights Act which does not affect the operation of a non-compatible provision and therefore defers to the doctrine of parliamentary sovereignty. In this sense the proposed Bill appears to place limitations on the competence of the newly independent Scottish Parliament, creating a framework model of constitutionalism potentially very different from the Westminster process model (for a discussion on framework v process models of constitutionalism see Feldman). This would be complemented by the existing duty to read legislation as compatible in so far as it is possible to do so under section 101 of the Scotland Act.

However, this is where it gets slightly complicated. The Bill proposes affording ECHR rights constitutional status yet at the same time it also nods towards parliamentary supremacy, suggesting at least the theoretical possibility that the ECHR protection mechanisms could be repealed if the Scottish Parliament expressly chose to do so. Furthermore, perhaps by omission, the section dealing with ECHR protection mentions that the Scottish Government and public bodies are bound to comply but does not expressly provide that the Scottish Parliament’s legislative competence is limited. This omission would be overcome by the overarching provision in section 26(2) that declares Scots law to be of no effect so far as it is incompatible and, under the continuation of laws (section 34) an amended version of section 29 of the Scotland Act could continue to apply, limiting the competence of the Scottish Parliament in relation to ECHR rights and EU law. This is clarified in the explanatory notes to the Bill,

‘The Scotland Act’s human rights ‘bite’ is sharper than that of the Human Rights Act. The renewed Scotland Act will apply the higher threshold – that only applies to Scottish Parliament legislation at present – across all legislation, whether passed at Westminster or by the Scottish Parliament.’

So, whilst the wording of the Bill is unclear on this, it can be implied that the Bill proposes to retain the current, limited, legislative competence framework of the Scotland Act and extend it to reserved matters. By way of example, this would mean that on independence day all reserved matters that are currently in ‘ECHR limbo’ (such as the blanket ban on prisoner voting rights and the Strasbourg judgment in the Hirst case) would need to be remedied, otherwise an application to a Scottish court could result in an ultra vires declaration, rendering the offending provision unconstitutional and of ‘no effect’ in Scots law. In this sense we can see a ‘rights affirmative’ approach at play in relation to those rights recognised under the ECHR.

With the ECHR as the substantive benchmark the Bill does not extend legal coverage to the broad spectrum of rights recognised in international law, such as the right to adequate housing, the right to the enjoyment of the highest attainable standard of physical and mental health, the right to work, the right to an adequate standard of living, the right to take part in cultural life and so on (see for example the scope of rights covered in the International Convention on Economic, Social and Cultural Rights which the UK is party to but which it has not incorporated into domestic law). There is reference in the Bill to some additional rights, such as equality, children’s wellbeing, the interests of the island communities, entitlement to a healthy environment and protection of natural resources (sections 28-32). Although the Bill would codify these references under a single statute, it would appear for the most part that there is nothing in the substance of the provisions that goes any further than protections currently available under existing legislation which would continue to operate under the continuation of laws in section 34 of the Bill. For example, the provisions relating to equality do not go any further than the procedural protections available under the Equality Act 2010. The reference to children’s wellbeing confers a duty on public authorities to ‘seek to safeguard, support and promote the wellbeing of children in Scotland.’ Again, this arguably does not go any further than existing legislation such as the duties conferred on public authorities under the Children (Scotland) Act 1995. The right to a healthy environment potentially extends the scope of justiciable environmental rights in the Bill. On the other hand, the intention could be merely to codify already existing case law under Article 8 of the ECHR. The references to additional rights are therefore better considered as overarching principles rather than substantive provisions that confer additional rights. In the explanatory notes the Scottish Government explains that the intention of this approach is to assist in mainstreaming existing mechanisms. Many human rights advocates may well argue that this does not go far enough.

So, although the interim constitution Bill provides a more robust human rights protection framework than is currently available under the Westminster model, it is also quite restrictive in the wider recognition of additional rights beyond those contained in the ECHR – the ECHR predominantly focussing on civil and political, and not economic, social and cultural rights. Having said that, the proposals leave the future of human rights protection mechanisms in Scotland open for deliberation under the Constitutional Convention process. It is proposed that the interim constitution would be replaced by a written constitution post-independence day following the deliberation and constitution-framing exercise to be conducted by the Constitutional Convention established under an Act of the newly elected independent Scottish Parliament (section 33). And, whilst the interim constitution is a robust (wide reaching with effective remedies) but restricted (only protecting a limited number of rights) model, it does not mean that the same would apply under the terms of a permanent written constitution. The permanent constitution could well embed more wide-reaching human rights protections. In the same vein, the Constitutional Convention might recommend that existing protection mechanisms be reduced or their justiciability qualified (although this might cause significant difficulties if these were deemed to be at odds with Scotland’s obligations under the Council of Europe and European Union). This brings us back to the idea of the interim constitution as a ‘constitutional statute’. This term as understood within a ‘Westminster’ constitutional mentality would make it exempt from implied repeal but not express repeal: in this sense the Scottish Parliament could legislate expressly to amend initial rights protection mechanisms contained in the interim constitution should it so choose. But given the ambiguity in the Bill and supporting documentation to which we have alluded, such an eventuality would raise an interesting issue of legality for the legislation in question. A case might well come before the courts which would test the limits of the Scottish Parliament’s competence in relation to the interim constitution’s authority to bind this Parliament into the future, offering the prospect of a clean break with the very notion of legislative supremacy.

The Scottish Government points out that enhancing rights protection is something that it would suggest be included in the permanent written constitution. Under this proposal, it would be for the Constitutional Convention to decide whether additional protections be afforded to economic, social and cultural rights as well as civil and political rights, such as has recently been recommended by Constitutional Conventions in Ireland and New Zealand. The Bill’s proposed approach differs from the path taken in the interim constitution of South Africa which set out ‘constitutional principles’ to be embedded in the permanent constitution – including equality measures and extensive human rights protection – meaning the road map for human rights was much clearer and more prescriptive in the South African interim arrangements than that set out in the Scottish Government’s proposals. The much broader (and less prescriptive) road map is arguably no bad thing – leaving the decisions on what ought to be included in the final written constitution to the participative Constitutional Convention process.

On the other hand, much of the Scottish Government’s rhetoric around the referendum debate has been about securing a fairer and more inclusive society in an independent Scotland. There ought to be a debate about whether this could, or should, be reflected in any proposed interim or permanent constitution. There also needs to be a debate about how this commitment could be, or whether it ought to be, protected from change by successive political administrations. It is crucial that the people of Scotland should have the opportunity to consider and contribute to the potential models of constitutionalisation of such aspirations – whether they be through channels of political representation in Parliament, through general mission statements or overarching principles, or through the entrenchment of fundamental values in a framework constitution that binds the legislature, executive and the judiciary in the exercise of state power. The consultation process on the proposed Bill offers an opportunity to begin this discussion even before the referendum is held. Interested parties can now begin to contribute to the debate on the future of human rights protection in Scotland should the referendum result in a yes vote. Regardless of differing views as to whether or how human rights should be entrenched, and if so which are suitable for such constitutional protection, what is surely critical is that in the exercise of these debates the process of decision-making about constitution framing be genuinely deliberative, informed and inclusive. In this sense we would reassert that, should there be a yes vote, the Constitutional Conventionbe designed very carefully if it is to be genuinely deliberative and representative’.

In the event of a no vote the future of human rights is perhaps even less certain – the recent UK Cabinet reshuffle suggests that a move towards human rights reform is very much on the Conservative agenda with Prime Minister David Cameron promising to alter, potentially radically, the UK’s relationship to the ECHR. The Shadow Justice Secretary Sadiq Khan has also set out Labour’s plans for a less intrusive Human Rights Act, offering to limit the extent to which Strasbourg jurisprudence is treated as binding and thereby seeking to shift the balance of judicial power back towards the British courts (for a discussion on this see Elliot and Mead). In light of these proposals, the regime offered in the Scottish Government’s proposed Bill strikes a very different tone, seeking to legally enshrine European human rights provisions ever further in Scotland by transferring ECHR devolved protection mechanisms to reserved matters. If indeed the legal guarantees offered to human rights are further restricted by Westminster in the next few years then it would appear that, in the area of human rights law, an independent Scotland may well look remarkably different from the rest of the UK.

 

The research for this blog was funded by Stephen Tierney’s ESRC Senior Research Fellowship under the ESRC Future of the UK and Scotland programme.

Professor Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law.  He is currently ESRC Senior Research Fellow under the Future of the UK and Scotland programme and leads the The Scottish Independence Referendum: A Democratic Audit’ research project.

Dr Katie Boyle is a constitutional lawyer and Economic and Social Research Council Fellow at the University of Edinburgh working on the ESRC funded research project ‘The Scottish Independence Referendum: A Democratic Audit’.

(Suggested citation: S. Tierney and K. Boyle, ‘Human Rights in Transition: The Proposed Interim Constitution for Scotland’ U.K. Const. L. Blog (1st August 2014) (available at http://ukconstitutionallaw.org/)).

 

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Edward Kirton-Darling: Missing: political genius. If found, please return to the British People, care of Palace of Westminster, SW1A.

Edward2If Scottish voters chose independence in the referendum in September, the SNP confirmed on 16 June that a written constitution for Scotland would be drawn up. Where does that leave the rest of the UK? In an endeavour to consider what Scottish independence would mean for the rUK, this post considers Lord Bingham’s accounts of the proper relationship between the Rule of Law and Parliamentary Sovereignty, and, drawing on his concern about an imbalance within Parliament, argues that if Scottish were to secede, this would further unbalance the rUK’s constitutional order.

Lord Bingham, the Rule of Law and Parliamentary Sovereignty

In 2007, Lord Bingham set out his perspective on the relationship between the rule of law and parliamentary sovereignty in a Commemoration Oration at Kings. Much of the speech was subsequently reproduced in 2010 in Chapter 12 of his book, but for one significant amendment, which I will come to below. Bingham argued that fundamental rights must be incorporated into any proper account of the rule of law, and having set out the rights contained in the ECHR, which are “as good a check list as any,” he paused to wonder that “It is hard to understand how this very basic and practice catalogue of rights has come to be portrayed to the public as some ill-conceived, European-inspired, affront to the commonsensical conduct of government.” For Bingham, rights are not enough; at the heart of the rule of law is democracy, and the ability of a citizen to have a say in the laws by which they are bound.

Lord Bingham then turned to parliamentary sovereignty and dismissed arguments suggesting there were legal limits on Parliament’s ability to constitutionally legislate howsoever it wished. Where legislation which interfered with fundamental rights was clear and unambiguous, the courts have no power to annul or modify such enactments. Where courts do have such power, it exists by operation of Acts of Parliament, and if Parliament told them to do so, courts would stop interfering. He reserved particular ire for arguments based on common law fundamental rights – whether founded in obiter remarks by Sir Edward Coke in 1610 or Lord Steyn in 2005 – concluding that “The British people have not repelled the extraneous power of the papacy in spiritual matters and the pretensions of royal power in temporal in order to subject themselves to the unchallengeable rulings of unelected judges.”

However, this stirring paean to a sovereign British Parliament left Lord Bingham with the problem of the protection of fundamental rights. He was not persuaded by the argument that in practice, Parliament will not interfere with fundamental rights, indeed it was not hard for him to envisage such interference. Instead, checks and balances within the concept of Parliamentary Sovereignty hold the key, and traditionally, the rule of law was protected by the existence of 3 powerful independent players in the Crown, the Lords and the Commons. In this context, the contemporary “vice at the heart of our constitutional system” is the overweening unrestricted power of whoever is in a majority in the House of Commons. Such a party can effectively act as it wishes, including passing legislation which interferes with the rule of law, and Lord Bingham argues that this serious problem, once squarely confronted, can surely be resolved by “the political genius of the British people.”

Crucially, the speech at Kings does not prescribe or even suggest what such a solution might look like. The tenor of the lecture, grounded in respect and admiration of the UK’s constitutional traditions, points towards a political solution to the tension between Parliament and the rule of law; maintaining a Parliament capable of legislating in any way it wished, but fixing the malaise by resolving the imbalance in the constituent parts of the sovereign Parliament; shackling the House of Commons, rather than the sovereign Parliament.

By 2010, this argument had changed (as I discuss below), but in relation to Scottish independence, there are two aspects of Bingham’s analysis which are important: (1) whether the Union with Scotland limited Parliament’s law making powers, and 2) how Scottish independence might affect the already unbalanced constitution.

Act of Union with Scotland & Devolution

In relation to devolution, Lord Bingham entirely dismissed any argument that Parliament had lost the power to legislate for Scotland (or Wales or NI). He maintained that as with the HRA and the EU, Parliament had curtailed its own power by express authority, and could revoke that power, at least in theory. However, the only chink which Bingham partially conceded in the armour of an all-powerful sovereign Parliament related to the question of Scotland. Bingham said:

It has been suggested, with some judicial support, that the principle of parliamentary sovereignty did not obtain in Scotland before 1707 and that the Union with Scotland Act 1706 cannot itself be amended or abrogated since it gave effect to the Treaty of Union in which certain provisions were agreed to be and were described in the Act as unalterable. The merits of this argument are far from clear. It is hard to see how the pre-1707 Scottish Parliament could have done anything more fundamental than abolish itself, and it is hard to accept that the Westminster Parliament could not modify the Act of Union if there were a clear majority in favour of doing so. But if, which I doubt, there is an exception here to the principle of parliamentary sovereignty, it is a very limited exception born of the peculiar circumstances pertaining to the union with Scotland and throws no doubt on the general applicability of the principle.

If Scotland votes yes to independence, we will shortly find out if Lord Bingham is correct, and political reality suggests his doubts are valid. The recent House of Lords Constitution Committee report on constitutional implications of the referendum concludes that a, relatively short, Act of Parliament would be capable of recognising independence for Scotland and the end of the UK’s legislative competence over Scotland. Clearly, If Scotland votes yes, and the UK Parliament passes legislation amending the Acts of Union, whether or not it existed before, this one possible exception cannot survive. However, this argument for a limited UK Parliament has been primarily limited to Scottish jurists and academics, as Baroness Hale acknowledged in Jackson v. AG [2005] UKHL 56, at para 159, stating “The concept of Parliamentary sovereignty which has been fundamental to the constitution of England and Wales since the 17th century (I appreciate that Scotland may have taken a different view) means that Parliament can do anything.” A resolution of the Scottish question will consequently have limited impact on arguments about sovereignty in the rUK.

Similarly, arguments over devolution’s role in undermining the classic theory of a sovereign Parliament (dismissed by Lord Bingham, and argued by Gavin Little in Scotland and Parliamentary Sovereignty (2004) 24(4) Legal Studies 540) will become outdated if Scotland votes yes to independence. For critics of Bingham’s approach, it may make little difference, as other putative substantive limits on Parliament remain and judges will continue to engage in constitutional analysis (see for example, M. Elliott U.K. Const. L. Blog (23rd January 2014) and Vernon Bogdanor Imprisoned by a Doctrine 32(1) OJLS 179). Thus Scottish independence will not definitively settle the question of legal limits to Parliament’s power either way, but as I argue below, it will have an impact on Parliament itself.

An Unbalanced Constitution

Lord Bingham’s 2007 resolution of the tension between a sovereign Parliament and fundamental rights under the rule of law was to turn to a critique of Parliament. In his account, there are no permissible legally enforceable limits to Parliament’s power, but the existence of checks and balances within a sovereign democratic Parliament would prevent express interference with rights. As such he proposes a Madison-style approach to avoiding majoritarianism, emphasising productive tensions within the legislative branch of government.

Alison Young’s post on this blog on 17th February 2014 argued that debate over whether judges or Parliament are supreme misses the point. Instead constitutional pluralism is evidenced by courts and Parliament checking each other’s excesses, with both asserting sovereignty in different circumstances, and neither able to finally demonstrate supremacy. The argument suggests that constitutional strength comes from the tension between institutions and their ability to exert restraint on each other.

Combining these two accounts suggests that intra-institutional checks and balances are important, and constitutional plurality is protected by tensions, both between constitutional institutions and within those institutions. Taking Bingham’s argument one step further, and focussing on Parliament in particular, productive tensions within the House of Commons, ensuring effective scrutiny of legislation and restricting a Government by requiring it to take different perspectives into account, is part of what ensures legitimacy and authority – and protects rights – in the UK’s constitutional order.

Concern about an imbalance within Parliament is not a recent development – Lord Bingham quotes a Victorian Lord Chief Justice with approval:

The constitution has lodged the sacred deposit of sovereign authority in a chest locked by three different keys, confided to the custody of three different trustees … One of them is now at length, after ages of struggle, effectually prevented from acting alone; but another of the two is said to enjoy the privilege of striking off the other two locks, when, for any purpose of its own, it wishes to lay hands on the treasure.

What difference will the independence of Scotland make to this debate? It is instructive to compare mid-Victorian Britain to a future rUK to consider this question. The criticism of an over-powerful House of Commons was made in a context in which the Monarch had been prevented from acting alone, but the House of Lords retained the power to veto, and in which party discipline (and consequent executive power over both Houses) was much weaker. Powerful local government, championed by J. Toulmin Smith and exemplified by the activities of Joseph Chamberlain in Birmingham, provided a political counterweight to Westminster, and economic power was split between London, established regional centres like Manchester and Glasgow, and newly developing industrial hubs like Middlesbrough, Gladstone’s “infant Hercules.”

Many of these political and economic balances are either gone or are dramatically denuded; with London, the House of Commons and the government within Parliament now far more dominant. Other restricting factors have emerged. The devolved institutions are one example, and while other limiting factors could be identified – some might point to the impact of social media and more transparent government, while stronger English regional voices may be emerging, see for example the launch of the North East Party on 26 May this year, – it is clear that the secession of Scotland would have an impact on the political checks and balances within the Commons itself.

Firstly, this is because the removal of Scottish MPs will result in a concurrent increase in the proportion of MPs voting with the government as part of the ‘payroll’ vote. Around 140 members (95 paid, and an estimated 45 unpaid Parliamentary Private Secretaries) are obliged by convention to vote with the government. The 95 members figure is fixed as an absolute number in primary legislation (while the number of PPS’ is not included and fluctuates). The result following Scottish independence – if no amendment is made to the payroll vote – will be that almost a quarter of the House of Commons will not generally be permitted to exercise an independent judgment on legislative matters. Such an increase may not have a dramatic impact on the Commons by itself (the current figure is approximately 22%), but is part of a long term trend of an increase in the ‘payroll’ vote which has already been subjected to fierce criticism (see the Public Administration Select Committee report “Too Many Ministers?” 9th Report, Session 2009-10).

Furthermore, as Keating has argued, Scottish MPs have traditionally operated on a regionally distinctive basis (See Michael J. Keating Parliamentary Behaviour as a Test of Scottish Integration into the United Kingdom, Legislative Studies Quarterly, Vol. 3, No. 3 (Aug., 1978), pp. 409-430). He showed (albeit pre-devolution) that the involvement of the majority of Scottish MPs in UK-wide politics was primarily aimed at seeking Scottish advantages. It could be argued therefore that removal of Scottish MPs would have little impact on a rUK, however, Keating shows disproportionately strong involvement by Scottish MPs on UK-wide Bills on economic affairs, in particular agricultural and fisheries (now devolved) and trade and industry (which is not devolved). Keating also argues that UK-wide legislation has been affected by Scottish members acting in a regionally distinctive way, illustrating this with the example of a failed attempt to legalise homosexuality across the UK in 1965 (subsequently applied to England and Wales only). Thus a Scottish MP arguing for the (perceived) best interests of Scotland affects the rUK, either through pushing UK-wide policies which are (perceived to be) best for Scotland, or through raising an argument for Scottish exceptionalism, with resulting negotiation, debate and scrutiny of proposed policies.

In a more recent paper, Keating and Cairney have shown that in a political culture moving towards a political class dominated by university educated middle class professionals, Scottish MPs were traditionally more diverse, “conforming more closely to the class stereotypes” (See Michael J. Keating and Paul Cairney, A New Elite? Politicians and Civil Servants in Scotland after Devolution Parliamentary Affairs (January 2006) 59 (1): 43-59). Although the upper class/public school/military representatives have subsequently disappeared from Scottish politics, Scottish MPs remain more likely to be from working class backgrounds than their English and Welsh counterparts.

Thus regionally distinctive behaviour by Scottish MPs has had implications for legislation affecting the whole of the UK, and the removal of Scottish members will have an homogenising effect on the Commons post-independence, as well as removing one political party in the shape of the SNP entirely. Furthermore, the removal of Scottish devolution would also remove an inter-UK test of subsidiary; a hurdle which demanded attention when any policy was considered or legislation introduced.

Conclusion

Potential Scottish independence can be put into a context in which the UK might conceivably leave the EU and repeal the HRA. Many of the arguments for these steps appeal to a sense in which Parliament has lost its democratic sovereign right to govern. Their appeal is to a Diceyean Britain in which Parliament is supreme. However, in Dicey’s late-Victorian Britain, significant checks on majority rule remained; formally in the shape of a still powerful Lords and far more interventionist Monarch; politically in a UK with far more powerful economic and political regional traditions; and theoretically, with powerful arguments opposing an unlimited Parliament built on the Acts of Union.

Checks and balances remain part of the UK’s constitutional order, but a result of Scottish membership of the UK will be a reduction in the potential restrictions on a majority party in the House of Commons. If intra-institutional plurality is a source of legitimacy and authority, this reduction in plurality in the Commons undermines Parliament itself. Did Lord Bingham predict this? His later (2010) formulation of the way to resolve the tension between Parliament’s sovereignty and the rule of law was to tentatively propose a written constitution. Perhaps he had given up on the political genius of the British people in the interim, or perhaps he had higher hopes of us than we have recently been able to evidence.

 

Edward Kirton-Darling is a doctoral candidate in socio-legal studies at the University of Kent.

(Suggested citation: E. Kirton-Darling, ‘Missing: political genius. If found, please return to the British People, care of Palace of Westminster SW1A’  U.K. Const. L. Blog (26th June 2014) (available at http://ukconstitutionallaw.org/)).

 

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Aileen McHarg: A Constitution for an Independent Scotland: the Draft Scottish Independence Bill

aileenIn her speech at Edinburgh University launching the draft Scottish Independence Bill, Nicola Sturgeon claimed that ‘the prospect of a Constitutional Convention and a written constitution are, in themselves, positive reasons for voting Yes.’  Many intending Yes voters will agree with that statement, viewing independence not only as a way of addressing Scotland’s perceived democratic deficit, but also as an opportunity for democratic renewal.

The adoption of a permanent written constitution is, however, a post-independence project.  In the interim, Scotland will require a set of constitutional arrangements to enable it to function as an independent state.  The draft Bill, which will only be introduced into the Scottish Parliament in the event of a Yes vote (and will require a preliminary transfer of power from Westminster), is thus intended to provide the necessary ‘constitutional platform’ for independence, as well as to impose a binding obligation on the Scottish Parliament to establish a Constitutional Convention to begin drafting a permanent constitution as soon as possible after independence.

The key problem for the interim constitution is one of legitimacy.  While the permanent constitution is to be adopted through a widely participative and deliberative process, independent of both Government and Parliament, the interim constitution is the initiative of the Scottish Government alone.  Although the draft Bill is subject to consultation, it will be enacted as an ordinary Act of the Scottish Parliament (ASP).  There are two dangers here.  One is that the interim constitution is a politically partisan document which lacks broad acceptance.  This is particularly problematic if it takes longer than expected to agree the permanent constitution or, indeed, if agreement ultimately proves impossible.  The other is that the interim constitution conditions the content of the permanent constitution through a process of path dependency, thus in practice blunting the radical democratic edge of the Constitutional Convention.  Both considerations counsel in favour of conservativism in the interim constitution, providing as much institutional and legal continuity with Scotland’s pre-independence constitutional arrangements as possible.

How well, then, does the draft Bill measure up?

There is indeed a good deal of continuity.  Scotland will remain a parliamentary democracy, with legislative power vested in the Scottish Parliament and executive power in the Scottish Government, accountable to the Parliament and through the Parliament to the people (ss 7(2), 10, 11, and 12).  It will also still be a constitutional monarchy, with the Queen as head of state, and all existing legal rights, powers and privileges of the Crown in Scotland preserved intact (ss 7(1) and 9).  Autonomous, elected local government will remain in place (s 17), and the continued independence of the judiciary and continued commitment to the rule of law are declared (ss 13 and 15).  The European Convention on Human Rights will still apply in Scots law and will be extended to cover all legislative and executive functions on the higher standard currently applied to devolved functions under the Scotland Act, rather than the lower standard applicable to reserved functions under the Human Rights Act (ss 26 and 27).  On the assumption that Scotland will be a member of the European Union, the supremacy of EU law is also explicitly accepted (s 24(2)).

There is, of course, some necessary innovation to provide Scotland with the full legal and institutional apparatus of an independent state.  The draft Bill thus provides for the concept of Scottish citizenship (s 18), establishes a Scottish civil service (s 16), and ends appeals to the UK Supreme Court (s 14).  It also makes provision for the conduct of international affairs and foreign policy, membership of international organisations, and ratification and incorporation of international agreements (ss 19 – 22).

Aspect of the draft Bill do, however, go beyond what is strictly necessary.  For instance, section 2 declares that ‘In Scotland, the people are sovereign.’  Arguably, this is not an innovation, but rather reflects a long-standing Scottish constitutional tradition which survived the Union with England.  The difficulty, though, is in understanding what the principle of popular sovereignty means when divorced from the specific claims of a right to self-determination and the rejection of Parliamentary sovereignty which gave it potency in the context of the Union.  Section 3 does attempt to give it content, asserting (in addition to the right to self-determination) that ‘[a]ll State power and authority … derives from, and is subject to, the sovereign will of the people, and those exercising State power and authority are accountable for it to the people.’  But how exactly this is to be reconciled with other aspects of the constitution, such as judicial independence, the continued acceptance of the royal prerogative as a source of executive power, or the supremacy of EU law remains to be seen.

More problematically, the Bill also contains a number of substantive value commitments.  These include: an obligation on the Scottish Government to pursue negotiations for nuclear disarmament and the removal of nuclear weapons from Scottish territory (s 23); constitutionalisation of the principle of equality (s 28); a duty to promote children’s wellbeing (s 29); protection for island communities (s 30); the right to a healthy environment (s 31); and a duty to use natural resources sustainably (s 32).  Whether a written constitution should contain substantive commitments of this kind is controversial, and they are particularly objectionable when it is not clear that there is broad public support for their inclusion.

However, the significance of this objection is perhaps reduced by a deeper continuity in the proposed interim constitution.  As already noted, the Bill will be enacted as an ordinary ASP, and the consultation paper accompanying the Bill makes clear that it will not have any entrenched legal status.  Nor, indeed, will Scotland’s interim constitution be a codified one.  Rather, the Bill will take its place as one of a number of constitutional statutes, alongside a revised Scotland Act, the Human Rights Act, the Representation of the People Acts and others.  As such, it will be amendable by subsequent Parliaments by simple majority, although amendment will have to be express, not merely implied, and there will be a certification process adopted to ensure that amendments are properly identified and considered.

Some people may object that this provides insufficient security for Scotland’s post-independence constitutional arrangements.  It is, however, a valid constitutional model, which should not be rejected out of hand.  An important task for the Constitutional Convention in drafting the permanent constitution will be to consider how best to reconcile the competing virtues of constitutional certainty and flexibility; in other words, how best to prevent abuse of power without unduly constraining future generations and excessively empowering unelected judges.  In the meantime it is clear that, in constitutional terms, independence for Scotland will be as much evolutionary as revolutionary.

Aileen McHarg is Professor of Public Law at the University of Strathclyde.

 

This post originally appeared on the Scottish Constitutional Futures Forum Blog.

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Stephen Tierney: Leaving Westminster: Constitutional Supremacy in an Independent Scotland

stierneyOn 16 June the Scottish Government unveiled its Scottish Independence Bill in an address by Nicola Sturgeon, Deputy First Minister of Scotland, to the Edinburgh Centre for Constitutional Law.

The referendum on independence for Scotland will be held on 18 September this year and commentators have been waiting for a detailed elaboration of the constitutional steps that would be taken by the Scottish Government in the event of a Yes vote by the people. The Scottish Independence Bill (‘the Bill’) sets out an interim constitution which, it is intended, will be passed by the Scottish Parliament to take effect on Independence Day (scheduled for 24 March 2016), and also paves the way for the drafting of a permanent constitution by a constitutional convention which will probably commence work later that year.

In a related post one member of my research team has looked at the transitional arrangements necessary to bring these changes about. In this piece I will set out the background to the proposal, look at the terms of the proposed interim constitution contained within the Bill, and consider the process by which a permanent constitution might be drafted. I will conclude by asking whether highly elaborate and detailed constitutions are really needed in a healthy parliamentary democracy, or whether in fact an independent Scotland would be better served by maintaining the advantages of the Westminster model, trusting in an open political process in which important decisions are left to parliament or to citizens acting directly in referendums.

The story so far

The Scottish Government reached agreement with the UK Government in October 2012 on the principle that Scotland can hold a referendum on independence. This was endorsed by way of secondary legislation and, consequently, the Scottish Parliament passed into law two bills establishing the franchise for the referendum and the broader process rules.

Furthermore, the Bill builds upon an earlier declaration of the Scottish Government’s constitutional ambitions. In November 2013 the Scottish Government published its White Paper, Scotland’s Future, which stated that an independent Scotland will have a new written constitution. This paper announced that Westminster parliamentary supremacy would be replaced with the principle of popular sovereignty, a commitment reiterated in the Bill (section 2): ‘In Scotland, the people are sovereign’. It is however anticipated that this sovereignty will manifest itself in a highly elaborate written constitution as a result of which the powers of the Scottish Parliament will be substantially curtailed.

Is the Scottish Independence Bill significant?

The Bill is notable for setting out both the substantive terms of the interim constitution and the process by which a permanent written constitution will be drafted following the Scottish Parliament elections in May 2016. The proposal is of course only for an interim constitution. It would take effect on ‘Independence Day’ in March 2016 (s1) but would continue in force only until a permanent written constitution for the State ‘is agreed by or on behalf of the people of Scotland’ (s4). We also need to contextualise this since it is a long way from taking effect. First, there would need to be a Yes vote in the referendum which current opinion polls do not suggest is likely. Secondly, the Bill is being offered up for consultation, so even its draft form is not set in stone. Thirdly, the passage of the Bill by the Scottish Parliament prior to independence would require legislation or at the very least a s30 Order in Council under the Scotland Act 1998, transferring the necessary powers to the Scottish Parliament. And fourthly, in being passed into law by the Scottish Parliament, the Bill could again be significantly amended.

But if the ‘Yes Scotland’ campaign is victorious in September the draft Bill will no doubt be the blueprint for the early years of Scottish independence. The Scottish Government, with a majority in the Scottish Parliament and with the momentum of a referendum victory, will doubtless get its way in the parliament after September. Secondly, although intended only as an interim measure, there may well be path dependency whereby a number of its provisions eventually find their way into a permanent constitutional document (the Scottish Government expressly anticipates this – Explanatory Notes p64).

The Interim Constitution: a bridge from parliamentary to constitutional supremacy?

There is no attempt in the Bill to put all of its provisions beyond the ordinary legislative process; the interim constitution is on its face open to repeal or amendment by ordinary act of the Scottish Parliament.

It is anticipated that in due course there will be a permanent written constitution in which the supremacy of that constitution over the powers of the Scottish Parliament is expressly declared. But until then, during the interim constitutional period, the Scottish Parliament will operate through a regime of self-imposed legislative restrictions in a limited number of areas. Most notably the Bill seeks to maintain the current provision contained in s29(2)(d) of the Scotland Act 1998 whereby the laws of the Parliament can be struck down on the grounds of incompatibility with Convention Rights (see the Bill ss 26 and 27). It is also anticipated that the Bill will ‘sit alongside… a refreshed and rewritten Scotland Act’ (Explanatory Notes p50), which will no doubt reiterate the human rights restriction, and will integrate the Human Rights Act 1998 into this renewed Scotland Act (partly through the principle of continuity of laws – the Bill, s34). We should also note s 24 which provides ‘Scots law is of no effect so far as it is inconsistent with EU law’. Therefore, although Schedule 5 of the Scotland Act will be repealed, freeing the Scottish Parliament from the constraints of those matters currently reserved to the Westminster Parliament, the interim constitution is intended to re-impose restrictions on the competence of the parliament, from the inside as it were.

In technical terms the model will be of interest to Westminster commentators because it suggests a period of half-way transition from the Westminster model. The Explanatory Notes p60 make clear that there will be no ‘hard amendment formula’ in the interim arrangements. The status of the interim constitution will be preserved in part by a ‘certification system’ whereby a minister or MSP introducing a bill to parliament would declare if the new act would amend the existing interim constitution. The planned Scottish Supreme Court (see below) could not declare such amendments to be unconstitutional but could strike down the laws of the Scottish Parliament if incompatible with EU law or Convention rights.

This is a complex set of arrangements and after independence the status of the interim constitution will no doubt be addressed by the new Scottish Supreme Court (see below). It would be interesting to observe how the court would make sense of this quasi-entrenchment of rights and EU law in a system where the interim constitution itself is not entrenched. If the Scottish Parliament did act incompatibly with Convention Rights or EU law, in a fully self-conscious way, would a court consider this to be unconstitutional or would it treat ss 26 and 27 as self-imposed restrictions which the parliament of an independent Scotland is free to amend at will?

A permanent constitution for Scotland: entrenching policy?

One should be sceptical of course of the very idea of a ‘permanent’ constitution. But whereas some countries do change constitutions frequently, in the post-war West constitutions have enjoyed more stability than in earlier times and in other parts of the world. We can assume then that a ‘permanent’ constitution for Scotland may indeed be a document of considerable durability.

One notable aspect of the Scottish Government’s proposal is the desire to entrench within a permanent constitution so many issues which are in effect policy preferences.

In its 2013 White Paper the Scottish Government offered a fairly extensive list of what it thinks the constitution should contain. These have continued to be central to its vision for independence and a number of them appear in the interim draft constitution contained in the Bill. For example:

  • equality of opportunity and entitlement to live free of discrimination and prejudice (see also the Bill s28 – although there is no specific reference in s28 to prejudice)
  • entitlement to public services and to a standard of living that, as a minimum, secures dignity and self-respect and provides the opportunity for people to realise their full potential both as individuals and as members of wider society (not in the Bill)
  • protection of the environment and the sustainable use of Scotland’s natural resources to embed Scotland’s commitment to sustainable development and tackling climate change (the Bill ss 32 and 33)
  • a ban on nuclear weapons being based in Scotland (the Bill s23 contains a commitment to ‘pursue negotiations with a view to securing… the safe and expeditious removal from the territory of Scotland of nuclear weapons based there’.)
  • controls on the use of military force and a role for an independent Scottish Parliament in approving and monitoring its use (no specific reference in the Bill but s19, as well as committing Scotland to respecting international law, extends this also to promoting peace, justice and security)
  • the existence and status of local government (the Bill s17)
  • rights in relation to healthcare, welfare and pensions (not in the Bill)
  • children’s rights (a duty on the Scottish Government to promote the wellbeing of children in Scotland – the Bill s29)
  • rights concerning other social and economic matters, such as the right to education and a Youth Guarantee on employment, education or training (not in the Bill)

It is notable that in the White Paper there was no commitment that a number of the proposed rights, such as the opportunity of education, training or employment and rights to welfare support and health care would be legally enforceable by courts but rather the more open-ended suggestion that they will be ‘questions of social justice at the forefront of the work of Scotland’s Parliament, government and public institutions.’ Notably, these rights do not find their way into the Bill at all. But they may well reappear following the consultation process, or may find their way into a permanent constitution. In such an event, enforceability will be an issue, with a debate likely as to whether and how these are to be in any way legally actionable.

The Bill also declares that Scotland is a ‘constitutional monarchy’ (s7) and ‘the Queen in Head of State’ (s9). In the White Paper it was added that Scotland would remain a constitutional monarchy ‘for as long as the people of Scotland wish us to be so’. This suggests that the head of state issue could be revisited in the process of drafting the permanent constitution. With the commitment in the Bill to popular sovereignty we might expect a debate about the compatibility of these different commitments. 

Sovereignty of the Judiciary

The Bill also provides that the existing high courts, the Court of Session and High Court of Justiciary, will be in their respective areas of competence ‘the Supreme Court of Scotland’ (s14).

It is interesting that the current court system will continue. The Bill suggests that judges will be given fundamental powers including, in a permanent constitution, the power to review acts of the Scottish Parliament on a wide range of issues. Since judges will become very important political actors in an independent Scotland there will no doubt also be consideration as to whether a new, specialist constitutional court might be needed and also an enquiry into how judges are appointed.

If it comes to drafting a permanent constitution it should also be noted that there are also other options available for constitutional review, such as a review committee of Parliament which could advise that draft legislation might be counter to constitutional principles, Parliament then retaining power to accept or reject this advice. The notion that judicial review of legislation is the automatic default option is highly questionable.

Drafting the Constitution: A Scottish Constitutional Convention?

The White Paper provides that, following the elections of May 2016, a constitutional convention will be established to ‘prepare the written constitution’. This commitment is stated more firmly in the Bill (s33): ‘The Scottish Parliament must, as soon as possible after Independence Day, make provision by Act of the Parliament for the establishment of an independent Constitutional Convention to be charged with the task of drawing up a written constitution for agreement by or on behalf of the people of Scotland.’ One small point is that ‘as soon as possible’ could be read to mean before the parliamentary elections scheduled for May 2016. From the Explanatory Notes one must assume this is not the intention of this provision since it would contradict the stated intention of the Scottish Government that it would be for the post-May 2016 Parliament to appoint the Convention.

The White Paper did not offer much detail as to the design of this convention, except that it would be ‘open, participative and inclusive’ and that the new constitution ‘should be designed by the people of Scotland, for the people of Scotland’. The Bill also leaves the membership of the convention and its operational rules for the Scottish Parliament to determine, including ‘the procedure by which the written constitution prepared by the Convention is to be agreed by or on behalf of the people.’ (s33). In other words, we don’t know yet if a referendum will be used to ratify a permanent constitution for Scotland.

The duty to establish a convention is a legally binding commitment within the Bill but since the Bill is open to repeal in the same way as any other act of the Scottish Parliament it will not in fact prevent the Scottish Parliament should it later wish, by way of legislation, to delay this process or amend how a new constitution is to be brought about. Again the response of the Scottish Supreme Court to such legislation would be interesting.

The Bill and its explanatory notes don’t offer any detailed view as to what the convention should look like, but we know from the White Paper that the Scottish Government has been looking at ‘international best practice’ and the practical experience of other countries such as citizen-led assemblies and constitutional conventions British Columbia (2004), the Netherlands (2006), Ontario (2007) and Iceland (2010). This raises the question: will the process really be a popular and meaningful engagement with citizens, or will it be a largely elite-led event? Will in fact the new constitution be drafted by elites – politicians, civic society organisations, business interests, trade unions and local authorities? The Explanatory Notes attached to the Bill point towards a broad approach to civil society engagement. But there are significant democratic risks associated with constitutional conventions in relation to representation and accountability. There is also the problem of such processes being dominated by the most vocal elements of civil society who can use the process to embed their own particular policy preferences in the constitution which may not have the support of a plurality of citizens. In short, any move towards a permanent written constitution should be worked out very carefully to ensure that the process is genuinely democratic, popular and deliberative.

Inclusion of all parties?

The parties which constitute the ‘Better Together’ organisation – campaigning to keep Scotland in the UK – tend not to comment on the prospect of a post-independence constitution largely because they do not want to entertain publicly the prospect of a Yes vote. However, it is likely that all parties in Scotland will develop their own constitutional agendas in the event that Scots do indeed vote for independence.

The timetable set out in both the White Paper and the Bill makes clear that there will be time for this to take place. The constitutional convention will in all probability not be established until after the Scottish parliamentary election in May 2016. Parties will no doubt run in that election with manifesto plans for the constitutional process, setting out whether or not they agree with the constitutional convention route, and stating their respective preferences in relation to constitutional content. And indeed it may well be that one or more of the parties which are currently campaigning for a No vote will in fact be in government to oversee the move towards a new constitution.

Rejecting the Westminster Model: throwing baby out with the bathwater?

It seems sensible that an independent Scotland should have a written constitution to replace the Scotland Acts of 1998 and 2012. The powers and responsibilities of the main institutions of government and of the judiciary will require to be defined. But I have two main concerns. The first is to do with process. Drafting a new constitution should involve as much engagement with the general public as possible, so that the process is genuinely popular rather than elite-driven. The interim constitution is a government-crafted device and may well shape the scope of the deliberations to be undertaken by the convention. The convention itself should, therefore, be designed very carefully if it is to be genuinely deliberative and representative.

Secondly, I am in general very sceptical of written constitutions which are highly detailed not only in setting out the institutional arrangements for the state but in prescribing a set of values, for reasons I have set out elsewhere. In the event of independence, a constitution will be needed, but why not start with a more modest document that provides for a head of state and sets out the powers of the Scottish Parliament and Scottish Government, the court structure, and local government? This would then leave it up to the people to exercise their newly gained independence through their parliament, allowing them to make the decisions they want, and from time to time to change their minds about these decisions should they wish to do so in an open and flexible way. And for big decisions there is of course the referendum; if it is appropriate to use direst democracy to determine the independence question why not use it for other major decisions which Scots will make in the future?

 

Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law.  He is currently ESRC Senior Research Fellow under theFuture of the UK and Scotland programme

This post originally appeared  on the ICON-nect  blog: http://www.iconnectblog.com.

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Donal Coffey: Accidental Entrenchment and the Scottish Independence Bill?

donalThe Scottish Government has recently published their proposed Scottish Independence Bill as part of the process directed towards ultimate Scottish independence from the United Kingdom. Katie Boyle has provided an overview of the various key provisions of the Bill in a recent blog post. In this post, I want to consider a potential argument that can be put forward on the Bill as it stands: the Bill may have inadvertently entrenched the proposed Constitution as a fundamental law.

First, it is important to establish that this would be inadvertent. The briefing notes accompanying chapter five of the Bill (pp. 59-67) make it clear that it was not the intention of the drafters that the Scottish Independence Bill would be entrenched. The relevant section is as follows:

The Scottish Government proposes that the Scottish Independence Bill and renewed Scotland Act will not contain a bespoke amending formula or hard entrenchment provision. This is because they are inherently temporary and are a staging post on the way to the permanent written constitution which would be prepared following independence. An excessively onerous amending formula would be inappropriate for interim arrangements. (at 60)

The notes argue that, if enacted, the Act would have constitutional status that requires explicit amendment or repeal. It is left open to the constitutional convention as to whether and how to entrench the constitution itself. However, the drafting of the Independence Bill itself leaves it questionable whether entrenchment may inadvertently occur due to the drafting of Article 3.

Article 3 states as follows:

(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.

(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

(3) 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.

(4) 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.

This Article provides that the people are the wellspring of all State power and authority; the draft refers to this as “the sovereign will of the people”. There is a subordinate, derived power which can be exercised by the people’s elected representatives (Article 3.3). However, in a problematic construction of clause (4), the ultimate power, “the sovereign will of the people”, is expressly described to be limited “by the constitution” and by international law obligations. The difficulty is as follows: “the constitution” referred to in Article 3 is that contained in part 2 the Scottish Independence Bill (Art. 1.1). Therefore, the exercise of the ultimate sovereign will of the people is subject to the terms of the Scottish Independence Bill. This, presumably, would also temper any subsequent exercise of the “sovereign will of the people”, i.e. through the constitutional convention outlined in Article 33. Therefore, the meaning of Article 3.4 is actually to entrench the Scottish Independence Bill in a manner which the drafters apparently did not intend. It seems more likely that it is the inferior power wielded by the people’s elected representatives that was intended to be subject to the limitations of Article 3.4, but this is not the natural construction of Article 3.4 as it stands.

It might appear that any deficiency in drafting under Article 3.4 would be cured by the exercise of the constituent authority of the people after the constitutional convention. However, it would further be open to question whether that subsequent exercise was a true exercise of constituent authority or would be an exercise of constituted authority under the Scottish Independence Bill, and therefore subject to any limitations therein. In this regard, the work of Dr. Joel Colón-Ríos has identified recent Columbian jurisprudence which has limited the power of the people to amend the Constitution via a referendum where this power is subject to the terms of the Constitution itself (see “Beyond Parliamentary Sovereignty and Judicial Supremacy: the Doctrine of Implicit Limits to Constitutional Reform in Latin America” (2013) Victoria University of Wellington Law Review 521 at 529-531).

It therefore appears clear that Article 3.4 may inadvertently entrench the Scottish Independence Bill in a manner which was unforeseen by its drafters. If this was not their intention, it is a relatively simple matter to insert words to make clear that it is the inferior governmental power, and not the sovereign power of the people, which is limited by the constitution. Moreover, it seems prudent to foreclose any possible judicial review on the basis of the above argument (whether it would be successful or not) simply because to do so would ensure that the path to independence, if such is the will of the Scottish people, is not subject to time-consuming and controversial actions in the courts.

 

Donal Coffey is a Senior Lecturer at the University of Portsmouth

(Suggested citation: D. Coffey, ‘Accidental Entrenchment and the Scottish Independence Bill?’ U.K. Const. L. Blog (24th June 2014) (available at http://ukconstitutionallaw.org/)).

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Katie Boyle: Scotland in Transition: the Scottish Government’s Proposed Interim Constitution and the Scottish Independence Bill

KatieOn Monday 16 June 2014 the Scottish Government launched the Scottish Independence Bill: A Consultation on an Interim Constitution for Scotland at the Edinburgh Centre for Constitutional Law. The publication is first and foremost a consultation paper that proposes establishing an interim constitution under section 4 of the proposed Bill should a majority vote in favour of Scottish independence in the referendum on 18 September 2014. The proposed interim constitution would bridge the constitutional gap between the proposed date of Scottish independence (24 March 2016) and the adoption of a permanent written constitution. To place this within the wider proposed transitional framework, the Bill would require a number of transitional mechanisms to be established before it could be legally passed by the Scottish Parliament after the referendum and before independence day. Viewed in this context the Bill proposes that the constitution-framing exercise would operate under a three stage process:

1) The transfer of a significant number of reserved powers would be required in the intervening period post-referendum / pre-independence day in order to allow for the passage of the Bill;

2) The interim constitution Bill would be enacted pre-independence day, partly commenced pre-independence day and partly commenced on independence day (section 36) to found Scotland’s constitutional arrangements until the permanent constitution is adopted;

3) The interim constitution would be replaced by a written constitution post-independence day following the deliberation and constitution-framing exercise to be conducted by the Constitutional Convention established under an Act of the newly elected independent Scottish Parliament (section 33).

Stage one of this process would require legislative action by Westminster in order to devolve the necessary power to legislate for an interim constitution. So rather than solely focus on the content of the Bill itself, it is crucial to examine what would be required in order to ensure legality in the passing of the proposed interim constitution. A number of matters that are currently reserved would require to be devolved before independence day, such as for example, the ability to legislate to change the constitution of the United Kingdom (reserved under paragraph 1 of Schedule 5 of the Scotland Act 1998).

It is proposed that the Bill would then commence on an incremental basis with sections 1 (independence), 18 (Scottish citizenship), 20 (international organisations), 34 (continuity of laws) and 37 (short title) commencing in advance of independence day (when the Bill is granted Royal Assent). This would confer on the Scottish Parliament the power to declare independence through a resolution of the Scottish Parliament (section 1), rather than independence emanating from Westminster legislation. It would also allow (should executive competence be transferred) the Scottish Government to enter into negotiations with international organisations, such as the EU, in advance of independence day to seek to secure continuing membership and a smooth transition to an independent state (see Barber for a discussion on the logistics of an EU negotiation process). It is proposed that the remainder of the Bill would thereafter commence on independence day itself.

It is envisaged that the Bill would hold a semi-constitutional foundation whilst the permanent written constitution is being prepared by a Constitutional Convention to be established ‘as soon as possible’ by the newly elected Scottish Parliament in May 2015 (section 33). This is the second stage of transition and during this period the Bill provides the foundation of an interim constitution. However, it is important to note, although it is proposed that the Bill would form a ‘constitutional statute’ under the common law principles first developed by Lord Justice Laws in the Thodburn case – it would not be an entrenched constitution subject to special amendment procedures. Like any other constitutional statute the terms of the then enacted legislation could be amended through subsequent ordinary legislative procedure where subsequent legislation expressly repeals or amends part of the interim constitution (meaning the Bill is exempt from the doctrine of implied repeal but not exempt from expressed repeal or amendment).

The Bill would also not stand alone in forming the constitutional framework of a newly independent and transitional Scotland. The statute would be complemented by existing arrangements under an amended version of the Scotland Act 1998. Section 34 of the Bill provides for continuity of laws and the rule of law (guaranteed under section 15) would provide for the continuance of all existing legislation in force the day before independence day and also all common law judgments that relate to Scotland – until such time as judgments are overturned or legislation amended or repealed and replaced. The Scotland Act would require some significant changes – such as the repeal of Schedule 5 that lists those powers reserved to Westminster, and section 28(7) of the Act which reserves the ultimate sovereignty over both reserved and devolved matters to the UK Parliament at Westminster. This would see the incremental dismantling of the current devolved framework.

So whilst the proposed Bill is designed to serve as an interim constitution, the existing constitutional framework under the revised Scotland Act would continue to co-exist providing the technical and substantive instructions on how administrative and constitutional law in Scotland should operate. This is, of course, all dependent on the UK Parliament agreeing to transfer the necessary powers and make the necessary amendments to the Scotland Act in the intervening months between the referendum and independence day in order for the passage of the Bill to be a legal possibility.

This in and of itself poses difficulties to the eventual enactment of the Bill if the UK Parliament are opposed to transferring powers pre independence day. Although the Edinburgh Agreement (the agreement reached between the UK and Scottish Government on 12 October 2012 that governs the referendum process) contains a duty to cooperate in good faith and ‘in the best interests of the people of Scotland and the rest of the UK’, it does not impose a duty to transfer powers on an incremental or pre-independence basis should the UK Government consider this is not in the best interests of the people of Scotland, or the best interests of the people of the rest of the UK. In any event, the transfer of legislative competence through a section 30 Order and the transfer of executive competence through a section 63 Order would require affirmative approval by the UK Parliament and the Scottish Parliament before becoming law. The UK Parliament is not a party to the Edinburgh Agreement and so there may be significant barriers to ensuring the passage of such Orders. Furthermore, changes to the composition of the Parliament in the 2015 general election and a newly elected UK Government, whatever political administration that might be, may complicate matters further.

The Scottish Government could seek to enter into a second agreement with the UK Government after the referendum if the electorate vote for independence. This second agreement could act as a more wide reaching framework agreement to govern subsequent negotiations on the terms of independence – this at the very least might help smooth the first transitional stage by clarifying how the substantive terms of independence and separation might be negotiated and by identifying common principles and values in a spirit of cooperation. At this stage Scotland would not yet have reached independent statehood and this precludes the possibility of an international treaty, however, the framework agreement could reflect the language and content of an international treaty in order to add legitimacy to the process (akin to the terms of the multi-party peace agreement in Northern Ireland in 1998). The terms of an international treaty could thereafter be drawn up to be adopted on independence day, with an ad hoc internationalisation of the previous agreement, so that any matters that continue to be negotiated could be done so in a continuing spirit of cooperation. This would build upon the commitment in the Edinburgh Agreement ‘to continue to work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom’.

If these potential barriers in relation to the transfer of legislative and executive competence are overcome, through for example the adoption of a framework agreement, it is possible that the Scottish Parliament would be in a position to lay the Bill before the legislature in advance of independence day in order to complete stage one of the process. This comes with the caveat that this would be no easy path to secure and is wholly dependent on the UK Government and Parliament respecting the outcome of the referendum and facilitating a quick transition in terms of the transfer of competence. In this sense, it might be more beneficial to set a framework agreement in place before the referendum – so that the terms of the agreement could also cover the eventuality of a no vote providing an opportunity to clarify the road map for Scotland’s constitutional future whatever the outcome of the referendum. This is highly unlikely given the timeframe and the fact the UK Government has already made clear that it would not be appropriate to negotiate the terms independence before the referendum.

In the event of a yes vote and the above barriers being overcome, Scotland would thereafter enter stage two of the process under the proposed interim constitution. The Bill proposes transitional arrangements in relation to the Scottish constitutional framework including the proposed process to create a written constitution through the establishment of a Constitutional Convention (section 33). The outcome of the proposed Convention, a written and permanent constitution, would ultimately see Scotland entering stage three of the transitional process.

A Deliberative, Participative and Inclusive Constitutional Convention?

The final proposed stage in the transitional constitutional status of a newly independent Scotland is provided for under section 33 of the Bill. The provision for a permanent constitution confers a duty on the Scottish Parliament to establish by an Act of Parliament an independent Constitutional Convention charged with the task of drawing up a written constitution for agreement by or on behalf of the people of Scotland. The Act must provide for the membership of the Convention; the funding of and administrative support of the Convention; the time by which the Convention is to complete its task and its dissolution; the procedures and processes to be followed by the Convention; and the procedure by which the written constitution should be adopted by or on behalf of the people. Interestingly, there is no substantive provisions relating to the matters to be considered by the Convention in the Bill itself – leaving this open to the Scottish Parliament to decide post independence.

Likewise, the actual appointment of Convention members and the process of deliberation is also left open – meaning the commitment to a participative and inclusive process promised in the explanatory notes (page 44) is not underpinned by any substantive provisions on how this might be achieved. Much like the referendum process, legitimacy in the outcome of the Constitutional Convention would be engendered through legitimacy in the process itself. The proposals in Scotland’s Future (page 352) and the explanatory notes to the Bill promise to include the voices of civic society groups such as trade unions, business interests, local councils, faith groups, community groups, and extensive involvement of ordinary citizens. However, the mechanisms through which these voices would be heard in the deliberative constitution-making process are not yet clear. The Scottish Parliament would therefore be tasked with taking into consideration how best to ensure that the Constitutional Convention takes into account an array of voices, all of which may have differing and potentially competing interests, when legislating for the membership, procedures and processes to be followed by the Convention.

By way of example, one might consider how best to include minority groups in a majoritarian decision making process that might otherwise be marginalised and potentially excluded from the process – particularly in relation to vulnerable and disadvantaged groups. The Scottish Parliament, and latterly the Convention itself, would also need to consider whether there should be some form of framework from which the constitution-making process should begin – through for example embedding fundamental constitutional rights, or whether some of the provisions in the interim constitution should be retained, such as those relating to the head of state (section 9); nuclear disarmament (section 23); or the division of powers between legislature, executive and judiciary (sections 10, 11, 13 and 14).

The constitution-framing exercise ought to form a deliberative, informed, reasoned and inclusive process so as to avoid what could potentially be an exercise of elite or majoritarian decision making (see Tierney and Boyle). At the very least, it is notable that the proposed Bill ensures the Convention would operate independent of the Scottish Government and Parliament (section 33(3)(4)). Nonetheless, a great deal of consideration would require to be given to creating a deliberative framework that engenders legitimacy in the eventual outcome of the Constitutional Convention process through mechanisms ensuring substantive inclusion and participation.

Finally, the Bill proposes that the written constitution at the completion of the Convention process would not necessarily require approval by direct democracy through another constitutional referendum. The Bill leaves it open to the Scottish Parliament to decide how the written Constitution is to be agreed – either through a subsequent referendum, or through approval by Parliament on behalf of the people (section 33(3)(e)). There is a debate to be had about what role direct democracy should play in the adoption of constitutions and subsequent constitutional change and what model Scotland could adopt in this regard (see Constitutional Referendums for an analysis of these issues).

Conclusion

As was alluded to in the first paragraph, the interim constitution Bill first and foremost forms part of a consultation paper that is open to deliberation and to the submission of views rather than a Bill that is being laid before the Scottish Parliament in its current form. The publication states that the ‘purpose of the Bill and consultation paper is to facilitate as wide and open a debate on the constitution of an independent Scotland as possible’. With this in mind, it is important to remember that there is a constitution-framing exercise already underway and the consultation process provides an important opportunity to contribute to the wider discussion on potential constitutional change should the referendum result in a yes vote. Again, according to the principles of deliberative democracy, such an exercise is a welcome one in ensuring a participative process.

This will also no doubt inform and encourage UK wide reflection on constitutional arrangements – whether that be in relation to a written constitution, further devolution, membership of the EU, or a Constitutional Convention for the UK for that matter. Given that the political parties supporting Scotland’s continuing membership of the UK have now come together to promise further devolution in the event of a no vote one thing we can be certain of is that Scotland and the UK’s constitutional landscape will most likely face change in the near future whatever the referendum result on 18 September 2014.

 

Katie Boyle is a constitutional lawyer, Economic and Social Research Council Research Fellow at the University of Edinburgh and Lecturer in International Human Rights at the University of Limerick.

The research for this blog forms part of a research project undertaken by Professor Stephen Tierney, ‘The Scottish Independence Referendum: A Democratic Audit’, funded by the ESRC Future of the UK and Scotland Senior Fellowship scheme. All views expressed are the author’s own.

(Suggested citation: K. Boyle, ‘Scotland in Transition: the Scottish Government’s Proposed Interim Constitution and the Scottish Independence Bill’ U.K. Const. L. Blog (21st June 2014) (available at http://ukconstitutionallaw.org/)).

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Merris Amos: Scotland, Independence, and Human Rights

Merris Amos.jpgIn its weighty tome, Scotland’s Future, the Scottish Government promises that at its heart, an independent Scotland will have “the respect, protection and promotion of equality and human rights.” Furthermore, this will not be just an empty gesture but will be “enshrined in a written constitution to bind the institutions of the state and protect individuals and communities from abuses of power.” The promise is also made that as an independent state, Scotland will live up to its international obligations on equality and human rights. Furthermore, protections already enjoyed will continue in a written constitution. These will include the rights contained in the European Convention on Human Rights (ECHR) but other rights will also be considered for inclusion. Specifically mentioned are the rights contained in the UN Convention on the Rights of the Child and principles designed to “deliver greater equality and social justice.” Any new rights or future changes will be developed in “full consultation with the people of Scotland”. It is also promised that Scotland will continue to have its own human rights body.

If the intention is to encourage a “yes” vote from those basing their vote for or against Scotland’s independence on human rights protection alone, this is a very good start. Leaders of the major political parties in the rest of the UK find it difficult to mention the words “human rights” let alone make promises to improve the legal protection of human rights or explore the possibility of adding new rights to those already protected by the Human Rights Act (HRA). Officially, the most recent pronouncement was from the Commission on a Bill of Rights which reported in 2013. Unable to agree on much, a majority of the Commission concluded that there was a strong argument in favour of a UK Bill of Rights which would build on all of the UK’s obligations under the ECHR and provide no less protection than was contained in the HRA. However, a different majority concluded that socio-economic rights were not something that should be included and that the present declaration of incompatibility contained in section 4 of the HRA should be retained as “there was no desire for conferring on courts a power to strike down inconsistent Acts of Parliament.” There has been very little progress on human rights law reform since.

By contrast, whilst the details are limited, the Scottish Government’s promises about human rights would address at least three of the problems with the current state of legal protection of human rights in the UK which the Commission on a Bill of Rights failed to do. First, as the Scottish Government itself recognised, whilst Scotland’s current equality and human rights framework is strong, that framework’s future cannot be guaranteed under current constitutional arrangements. The same goes for the rest of the UK. Once campaigning gets under way for the 2015 UK general election, it is likely that the repeal of the HRA will once again be a feature of the Conservative Party’s campaign as it was for the 2010 general election. Including human rights protection in a written constitution offers much more effective protection from the political winds of change than that offered by a mere Act of Parliament. Although it is likely that politicians would continue to criticise politically unpalatable judgments, such as those concerning prisoner voting, such criticism would be unlikely to be accompanied by promises to repeal or amend the constitution, particularly if the new constitution occupied a special place in the hearts and minds of the Scottish people. The experience of other countries demonstrates that including human rights protection as a key part of a written constitution also improves knowledge of and respect for human rights law, particularly if changes to present arrangements are developed in full consultation with the people of Scotland.

Second, whilst the details are not clear, it is likely that a written constitution containing human rights protection would mean that the legislation of the new independent Scottish Parliament would be vulnerable to legal challenge in the courts were it to be incompatible with human rights law. Whilst under the Scotland Act 1998 this is the situation at present in relation to the devolved legislation of the Scottish Parliament, it is not the situation in respect of the laws of the Westminster Parliament. Under section 4 of the HRA all a court can do is issue a declaration of incompatibility and wait for government, and Parliament, to change the law with all the delay and uncertainty that this entails. And finally, given the traditionally strong commitment to social justice in Scotland and willingness to include in the written constitution rights additional to those in the ECHR such as children’s rights and principles designed to “deliver greater equality and social justice”, it is likely that by contrast to the rest of the UK, human rights protection in an independent Scotland would extend to justiciable economic, social and possibly cultural rights. As appreciated during the lengthy process towards a Bill of Rights for Northern Ireland, often such rights have a more concrete meaning for people than civil and political rights and can help to muster support for human rights law generally whilst providing much needed protection for vulnerable individuals in an era of growing inequality.

Involving the people of Scotland in the future of human rights law, entrenching the outcome in a written constitution to which the legislature was subject, extending protection to economic, social, cultural and other human rights and support for a strong independent human rights commission would undoubtedly place an independent Scotland in the leading position on the protection of human rights when compared to the remaining countries of the United Kingdom. Were the HRA to be repealed following the next general election, the comparison would be even starker. But before planning a move to Scotland, it is important to be realistic about what will actually be achieved in relation to human rights protection were Scotland to achieve independence.

With a limited portfolio, it is fairly simple for the present Scottish government to be positive about human rights protection. Issues which have caused consternation for politicians at Westminster, such as the detention, control and deportation of terrorist suspects, have not arisen in the Scottish legal or political system. An independent Scotland would have responsibility for all matters including immigration and national security and much more difficult human rights questions would arise. Whilst it may be resisted, there would be a strong temptation to water down promised human rights protection in the face of public perceptions that human rights law is a “villain’s charter” an “obstacle to protecting the lives of citizens” and “practically an invitation for terrorists and would-be terrorists to come to Scotland”. Such notions have been prevalent in the UK print media over the last 14 years, including Scotland. Much initial work would have to be done to essentially rebrand the idea of human rights in the minds of the public, ensure sufficient education and promotion and encourage respect for the human rights parts of the written constitution. As the experience of other states demonstrates, the budget for an “open, participative and inclusive constitutional convention” would be considerable.

A related issue is what relationship Scottish courts in an independent Scotland would have with the European Court of Human Rights (ECtHR) when adjudicating on human rights claims. It is assumed that Scotland would be a party to the ECHR and thereby accept the right of individual petition to the ECtHR. Were the new constitution to be silent on the matter, it is also likely that Scottish judges would make full use of the jurisprudence of the ECtHR. Whilst there is considerable political mileage in the idea of a “Scottish” approach to human rights interpretation and application, which would garner respect and a margin of appreciation for Scotland before the ECtHR, again it is necessary to be realistic. It is only in a small minority of claims that there is actually room for a national approach. A recent example is the UK broadcasting ban on political advertising which was upheld by the ECtHR in Animal Defenders International v United Kingdom 2013. Other attempts to seek respect for a UK approach to human rights from the ECtHR, the blanket ban on prisoner voting for example, have not been successful.

In relation to the range of rights to be protected, it is important to appreciate that there exists a strong narrative force in the UK, and other national jurisdictions, against making economic and social rights justiciable in the same way as civil and political rights. As noted above, this was the conclusion of the Commission on a Bill of Rights and despite the promise of the Scottish government, the result of further consultation with powerful interests groups may mean that this promise is impossible to deliver. As it was for the HRA, a first step may be simply to offer protection to the rights contained in the ECHR and Protocol No.1, as noted in Rights Brought Home, the White Paper accompanying the Human Rights Bill, “ones with which the people of this country were plainly comfortable”. And finally, it is not clear from Scotland’s Future how the written constitution would limit the power of the Scottish Parliament to legislate. It is possible that human rights protection may afford Scottish judges something more than a declaration of incompatibility but less than a strike down power raising similar problems of delay and effectiveness which have bedevilled section 4 of the HRA.

Whatever the outcome of the referendum, by making the protection and promotion of equality and human rights as a part of a written constitution one of the issues for consideration, the Scottish Government has set an excellent example. Should the vote be for independence, those with the power to embrace and reform human rights law in the rest of the UK should take careful note.

Merris Amos is a Senior Lecturer at the School of Law, Queen Mary, University of London.

(Suggested citation: M. Amos, ‘Scotland, Independence, and Human Rights’ U.K. Const. L. Blog (13th May 2014)  (available at  http://ukconstitutionallaw.org/).

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Filed under Constitutional reform, Devolution, Human rights, Judicial review, Scotland, UK Parliament