The SNP’s absurd ‘Draft Constitution’ for Scotland

Earlier this month the Scottish Government published its draft bill for an interim constitution for Scotland in the event of a ‘Yes’ vote for independence. Sadly, it shows once again that the SNP is determined to advance a particular ideology of sovereignty as part of the independence campaign. Articles 3.1-4 advocate the direct ‘sovereignty of the people’ and make no mention of the monarch. However, article 9.3 declares that ‘Her Majesty, and Her successors to the Crown, continue to enjoy all the rights, powers and privileges which, according to law, attached to the Crown in Scotland immediately before Independence Day’. Since the rights, powers and privileges enjoyed by the Crown in Scotland are based on the concept of royal and parliamentary sovereignty which currently applies in the whole of the UK, article 9.3 directly contradicts article 3. The draft constitution attempts to avoid this by making article 9.3 subject to the constitution and acts of the Scottish Parliament – in other words, by annulling article 9.3, which is inconsistent with the Buchananesque ‘popular sovereignty’ that the SNP insists on. The continuation of the monarchy in Scotland in this draft constitution is, in other words, an empty assertion that has no rationale. Given that the SNP envisages the provisional constitution being replaced by a permanent constitution after a constitutional convention, one is left wondering whether the vacuity of references to the monarchy is a deliberate attempt to ensure that the final, permanent constitution excludes the monarchy altogether. The monarch would remain ‘Head of State’ in an independent Scotland but has no defined constitutional duties. In particular, the monarch has no role in signing bills into law. Although the SNP claims that Scotland would enjoy the same relationship with the monarchy as other Commonwealth Dominions after independence, this would in fact not be so, since nations such as Canada, Australia and New Zealand have ‘Westminster’ style legislatures and a concept of the sovereignty of the Crown in Parliament.

The suggestion that both the Scottish Government and the Scottish Parliament will continue to govern Scotland, as presently constituted, even after Scotland’s independence day (articles 10 and 11) is disturbing. The SNP envisages independence as an enhancement of its current position in Scotland, rather than a profoundly transforming event for the nation that will allow Scots to determine their own destiny. Article 34’s provision that laws in force in Scotland should remain in force unless explicitly repealed is a sensible one, but just because laws from a previous era should remain in force after independence, this does not mean that the same legislature should remain in place, much less the same government. In the event of independence, Scots must be given the opportunity to discard both the institutions of devolved power and the SNP, should they so choose; there is no prima facie reason why an independent Scotland should simply ‘convert’ existing institutions into those of the new state. The SNP’s proposed constitution offers the worst of both worlds – the vast and unnecessary expense of setting up separate institutions like a Scottish civil service, but also the continuation of the Scottish Parliament and Government in its present form. I am particularly disturbed by the fact that the SNP considers a unicameral legislature composed of equal elected representatives sufficient for an independent Scotland; no attempt has been made to revive the Thrie Estaitis as they existed before 1690. Perhaps the greatest absurdity of all in the draft constitution is the provision (article 34.3) that ‘prerogative instruments’ in force prior to independence would remain in force thereafter – in spite of the fact that the very concept of a prerogative instrument, founded as it is on royal sovereignty, would have been abolished in the new Scotland.

I continue to maintain that, in the event of the Westminster Parliament repealing the Act of Union of 1707 (and this is the only Parliament with the authority to do so, notwithstanding article 35 of the proposed Scottish constitution), Scotland’s only legislature would be the old Scottish Parliament, which would thereby automatically come back into being – or, more precisely, it would come back into being when the monarch summoned it. Authority to establish a provisional Scottish Parliament lies solely and exclusively with the monarch; that Parliament would then have authority to establish a provisional government and call for a constitutional convention. However, an easier and more sensible solution would be for the monarch to summon a constitutional convention at the same time as appointing ministers directly to run Scotland as a provisional government. The question of who the monarch would be in the event of the repeal of the Act of Union is more difficult. Since the Scottish Parliament never voted for the Act of Settlement before 1707, there is good reason to believe that Franz von Wittelsbach might become, by default, King of Scots on the repeal of the Act of Union. For this very reason, I suspect that the Westminster Parliament would decline to repeal the Act, arguing that it was sufficient for a Scottish Parliament to do so. But I am not sure that Scotland would truly be an independent country unless Westminster did so.

I was interested to read of Conservative MSP Murdo Fraser’s suggestion of a federal UK, the closest that any Conservative has come to actually supporting independence. It is good to see that Scottish Tories are finally realising the futility of Unionism. However, I would argue that a federal Great Britain presupposes an independent Scotland, because states can only legitimately choose to federate with one another from a position of sovereignty. A federal Great Britain is not a bad idea, but it would require Scotland to become independent first, and then for the rest of the UK and Scotland to enter into negotiations regarding a federation of some sort.



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3 responses to “The SNP’s absurd ‘Draft Constitution’ for Scotland

  1. An excellent post.

    There is another fundamental legal difficulty with the draft constitution, which no-one has yet picked up on. The UK exists because the pre-Union Parliaments of England and Scotland enacted Acts of Union (AoU) in 1706-7 (which were supplemented with the union with Ireland in 1800-01). It is widely believed that the UK Parliament (UKP) is bound in law by the terms of the AoU: it cannot rewrite the instrument which it depends on for its own existence and authority. This is a well-known exception to the principle of parliamentary sovereignty, and it is taken seriously by the Scottish and UK courts (see MacCormick v Lord Advocate 1953 SC 396, Gibson v Lord Advocate 1975 SLT 134, Pringle, Petitioner 1991 SLT 330 and Lord Hope’s speech in Jackson v Attorney General [2005] UKHL 56).

    The draft constitution is presented as a Bill for the Scottish Parliament (SP) to pass. As an elementary legal requirement, the SP would first need to be granted authorisation by London to pass the Bill, as the UKP’s Scotland Act 1998, which prescribes the powers of the SP, does not currently allow it to do so. The problem is that it is arguable that the UKP itself has no authority to grant such authorisation.

    The AoU provide that England and Scotland shall “forever after be United into One Kingdom” (Section 1). That word “forever” is very important. It means that the AoU’s terms were intended to be permanent. The UKP, which is the creature of the AoU, therefore has no legal power to bring about the dissolution of the Union. Doing so would, in legal terminology, be ultra vires. In principle, a unionist could petition the Court of Session for an injunction (or whatever they call them in Scotland – an “interlocutor”, I think) to disapply any UK legislation purporting to act in this way.

    To put it more simply, the AoU were drafted in such a way that they could never legally be repealed. If the UKP or the SP purports to repeal them, everyone will no doubt treat the repeal as valid, but that will be an extra-legal, political matter (much like the Jacobin guff about popular sovereignty). The actions of the 1689 “Convention Parliament” are an obvious parallel.

    This has obviously not occurred to the SNP. Section 35 of the draft constitution bill purports to repeal the Scottish AoU. The commentary states that this is sufficient to achieve repeal “in respect of the pre-Union Scots Parliament Act of 1707″. However, the Scots Parliament left no power to the UKP to repeal its AoU, and the SP is a creature of the UKP. I would argue that the Scots Parliament cannot now be re-convoked (although I am willing to be persuaded otherwise) – so the AoU are legally permanent.

  2. It seems to me what you’re saying is that Scotland could only become independent by means of revolution rather than by legal process. I’m inclined to agree – an independent Scotland needs to declare that the AofU was illegitimate and therefore repudiate the actions of the Scottish Parliament of 1707; in other words a counter-revolution to the Revolution of 1688-9

  3. That’s exactly what I’m saying. Redeat!

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