Constitution for Scotland
Encyclopedia
In September 2002, the Scottish National Party
(SNP) published a document, entitled "A Constitution for a Free Scotland", which details their policy for the Constitution
of a future independent Scotland
. This Constitution, which would come into effect following Scotland's transition to independence, would set out the rights of citizens of an independent Scotland, and define the powers and responsibilities of government and parliament.
(1) The right of the people of Scotland to self-determination and national sovereignty.
(2) A declaration of Scotland's territorial claims to the mainland and islands of Scotland, and to Scotland's offshore (oil and gas) resources.
(3) A declaration of constitutional supremacy: the Constitution is the supreme law and any other legislation which is incompatible with the Constitution will therefore be null and void.
(4) An inclusive definition of citizenship, with reserved rights of residency for non-citizens resident in Scotland at the time of independence. Voting is from age 16.
Note that there is no preamble or declaration of principles, and no mention of Scotland's flag, anthem, or capital.
(1) The Queen (Elizabeth II) would be retained as Head of State
, with the title of "Queen of Scots". The Union of 1603
– a personal union between the Scots Crown and that of England – would thereby be maintained, even though the Union of 1707 – a governmental union of two States and two Parliaments – would be dissolved.
(2) The Constitution for Scotland states that the monarch would hold title under the law of Scotland, so presumably the Parliament of Scotland could, at some future time, alter the law of succession
in such a way that this personal union is dissolved. A Scottish Parliament would also be able, if it so desired at some future time, to remove the religious proscriptions which ban Roman Catholics from inheriting the Crown under the Act of Settlement
.
(3) Executive powers are vested in the Head of State, who is expected and required to act on the advice of the Prime Minister and Ministers. The Prime Minister is to be elected by Parliament, and Ministers are to be confirmed by Parliament. The government as a whole is accountable to Parliament by means of a motion of confidence, in accordance with the rules of the parliamentary system
.
(4) When the Queen is not present in Scotland, the elected Presiding Officer (i.e. Speaker) of Parliament would act as Head of State.
The SNP is committed to holding a referendum on the future of the monarchy within the first term of a post-independence Parliament, but no explicit provision for this is made in the proposed Constitution.
of Scotland, which will possess legislative (law making) power, as well as being responsible for debating policies and holding the Executive to account.
The Constitution makes a number of breaks from British constitutional practice which were seen as radical in the 1970s but are, according to the SNP's Policy Paper, now accepted as part of Scottish political life:
(1) The Parliament of Scotland will be unicameral, in keeping with the tradition of the old Scottish Parliament before 1707 and that of the Devolved Scottish Parliament
today.
(2) The Parliament will be elected by proportional representation
. The SNP favours the Single Transferable Vote
system, but the exact electoral system used will be determined by ordinary legislation.
(3) Parliament elected for four-year fixed terms. Early dissolution
is permitted only if a government enjoying parliamentary support cannot be formed: the Prime Minister cannot dissolve Parliament at will. Parliament may also extend its term of office, in times of war, for up to one year.
(4) To compensate for the lack of a second chamber, a minority veto procedure (whereby two-fifths of the members of Parliament can delay a bill for up to a year, subject to the right of the majority to refer the bill to the people in a referendum
) is included. This is intended to prevent rash legislation by a Parliamentary majority.
(5) A stronger committee system will also be instituted, with pre-legislative scrutiny of legislation in parliamentary committees, although the Constitution is sparse on detail.
(6) Parliament would have control over declarations of war and the ratification of treaties. Treaties which amend the Constitution (e.g. treaties of European integration) must be passed by a three-fifths majority in Parliament and ratified by a national referendum.
Note: the constitutionally guaranteed status of local Councils was not included in the 1977 document, but has been included in the 2002 version.
(1) Judges are to be appointed by the Head of State on the advice of an independent appointments commission, consisting of the Lord Advocate
, the Presiding Officer of Parliament, a Senator of the College of Justice
and two impartial members elected by Parliament.
(2) Judges may only be removed from office, for misconduct, by a two-thirds majority vote of Parliament.
.
Social and economic rights, such as entitlements to public housing, unemployment benefit, pensions, public healthcare, and education, are included, but there is no protection for trial by jury
and no rule preventing double jeopardy
.
The rights and liberties guaranteed in the Constitution may be waived during a State of Emergency
. A State of Emergency must be approved by a three-fifths majority of the members of Parliament within two weeks, and may continue for up to three months, after which it must be renewed by Parliament.
(2) The relationships between the Executive and the Parliament are not clearly defined, particularly with regard to the election of a Prime Minister and the procedure for votes of confidence. This leaves scope for the regulation of these matters by law, standing orders of Parliament, or, in the absence of such provision, by existing parliamentary custom.
(3) In contrast to contempary European practice, the SNP's Constitution for Scotland does not clearly distinguish between the respective roles of the Head of State and the Executive (compare with the Constitutions of Spain or Sweden, where such a distinction is explicitly made).
(4) The Constitution does specify the size of Parliament, only that it must be at least four times the size of the Executive (the number of Ministers is limited to one-fifth of the members of Parliament).
(5) The qualifications for membership of Parliament, and any incompatibilities between membership of Parliament and other public offices, are unspecified. These matters are subject to determination by Parliament, in accordance with the usual legislative process.
(6) There is no mention in the Constitution for an Auditor-General or an Ombudsman, although both institutions currently exist in Scotland under Statute law. There is provision for Freedom of Information, but no reference to the Scottish Information Commissioner
.
Scottish National Party
The Scottish National Party is a social-democratic political party in Scotland which campaigns for Scottish independence from the United Kingdom....
(SNP) published a document, entitled "A Constitution for a Free Scotland", which details their policy for the Constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
of a future independent Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
. This Constitution, which would come into effect following Scotland's transition to independence, would set out the rights of citizens of an independent Scotland, and define the powers and responsibilities of government and parliament.
Historical background
The 2002 paper represents the culmination of many years' work. The essential elements of the Constitutional Policy were first adopted at the SNP's National Conference in 1977. The original drafting committee was convened by the late Dr Robert McIntyre, assisted by Professor Neil MacCormick, Dr Allan Macartney, Peter Chiene, Kenneth Fee, Isobel Lindsay and Barbara Park. The spirit of the original proposal has been retained in subsequent revisions, including a substantial review in 1990–1991.Aims and principles
The SNP Draft Constitution declares itself to be necessary "to protect the rights of every Scottish citizen and to place restrictions on what politicians can and can't do". The draft "envisages an inclusive Scotland that embraces its geographic and cultural diversity, where its citizens are free from discrimination on any grounds in the exercise of their constitutional rights". The intention is to "give voice to the Scottish people and provide the means for us to take control of the decisions affecting our lives".Article One: Constitution and People
Article One, entitled "Constitution and People" sets out some of the foundations of the Scottish State, including:(1) The right of the people of Scotland to self-determination and national sovereignty.
(2) A declaration of Scotland's territorial claims to the mainland and islands of Scotland, and to Scotland's offshore (oil and gas) resources.
(3) A declaration of constitutional supremacy: the Constitution is the supreme law and any other legislation which is incompatible with the Constitution will therefore be null and void.
(4) An inclusive definition of citizenship, with reserved rights of residency for non-citizens resident in Scotland at the time of independence. Voting is from age 16.
Note that there is no preamble or declaration of principles, and no mention of Scotland's flag, anthem, or capital.
Article Two: Head of State and Executive
Article Two sets out the arrangement for the Head of State and the Executive:(1) The Queen (Elizabeth II) would be retained as Head of State
Head of State
A head of state is the individual that serves as the chief public representative of a monarchy, republic, federation, commonwealth or other kind of state. His or her role generally includes legitimizing the state and exercising the political powers, functions, and duties granted to the head of...
, with the title of "Queen of Scots". The Union of 1603
Union of the Crowns
The Union of the Crowns was the accession of James VI, King of Scots, to the throne of England, and the consequential unification of Scotland and England under one monarch. The Union of Crowns followed the death of James' unmarried and childless first cousin twice removed, Queen Elizabeth I of...
– a personal union between the Scots Crown and that of England – would thereby be maintained, even though the Union of 1707 – a governmental union of two States and two Parliaments – would be dissolved.
(2) The Constitution for Scotland states that the monarch would hold title under the law of Scotland, so presumably the Parliament of Scotland could, at some future time, alter the law of succession
Law of succession
Laws of succession govern the order of succession to various monarchies. Some laws of succession include:-United Kingdom:*British succession**Act of Settlement 1701-France:*Kings of France**Salic law* Legitimist claimants to the throne of France...
in such a way that this personal union is dissolved. A Scottish Parliament would also be able, if it so desired at some future time, to remove the religious proscriptions which ban Roman Catholics from inheriting the Crown under the Act of Settlement
Act of Settlement
Act of Settlement may refer to:*Statute of Legal Settlement 1547, legislation regarding the settlement of the poor*Act for the Settlement of Ireland 1652, in response to the Irish Rebellion of 1641...
.
(3) Executive powers are vested in the Head of State, who is expected and required to act on the advice of the Prime Minister and Ministers. The Prime Minister is to be elected by Parliament, and Ministers are to be confirmed by Parliament. The government as a whole is accountable to Parliament by means of a motion of confidence, in accordance with the rules of the parliamentary system
Parliamentary system
A parliamentary system is a system of government in which the ministers of the executive branch get their democratic legitimacy from the legislature and are accountable to that body, such that the executive and legislative branches are intertwined....
.
(4) When the Queen is not present in Scotland, the elected Presiding Officer (i.e. Speaker) of Parliament would act as Head of State.
The SNP is committed to holding a referendum on the future of the monarchy within the first term of a post-independence Parliament, but no explicit provision for this is made in the proposed Constitution.
Article Three: The Legislature
Article Three makes provision for a ParliamentParliament
A parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modeled after that of the United Kingdom. The name is derived from the French , the action of parler : a parlement is a discussion. The term came to mean a meeting at which...
of Scotland, which will possess legislative (law making) power, as well as being responsible for debating policies and holding the Executive to account.
The Constitution makes a number of breaks from British constitutional practice which were seen as radical in the 1970s but are, according to the SNP's Policy Paper, now accepted as part of Scottish political life:
(1) The Parliament of Scotland will be unicameral, in keeping with the tradition of the old Scottish Parliament before 1707 and that of the Devolved Scottish Parliament
Scottish Parliament
The Scottish Parliament is the devolved national, unicameral legislature of Scotland, located in the Holyrood area of the capital, Edinburgh. The Parliament, informally referred to as "Holyrood", is a democratically elected body comprising 129 members known as Members of the Scottish Parliament...
today.
(2) The Parliament will be elected by proportional representation
Proportional representation
Proportional representation is a concept in voting systems used to elect an assembly or council. PR means that the number of seats won by a party or group of candidates is proportionate to the number of votes received. For example, under a PR voting system if 30% of voters support a particular...
. The SNP favours the Single Transferable Vote
Single transferable vote
The single transferable vote is a voting system designed to achieve proportional representation through preferential voting. Under STV, an elector's vote is initially allocated to his or her most preferred candidate, and then, after candidates have been either elected or eliminated, any surplus or...
system, but the exact electoral system used will be determined by ordinary legislation.
(3) Parliament elected for four-year fixed terms. Early dissolution
Dissolution of parliament
In parliamentary systems, a dissolution of parliament is the dispersal of a legislature at the call of an election.Usually there is a maximum length of a legislature, and a dissolution must happen before the maximum time...
is permitted only if a government enjoying parliamentary support cannot be formed: the Prime Minister cannot dissolve Parliament at will. Parliament may also extend its term of office, in times of war, for up to one year.
(4) To compensate for the lack of a second chamber, a minority veto procedure (whereby two-fifths of the members of Parliament can delay a bill for up to a year, subject to the right of the majority to refer the bill to the people in a referendum
Referendum
A referendum is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of...
) is included. This is intended to prevent rash legislation by a Parliamentary majority.
(5) A stronger committee system will also be instituted, with pre-legislative scrutiny of legislation in parliamentary committees, although the Constitution is sparse on detail.
(6) Parliament would have control over declarations of war and the ratification of treaties. Treaties which amend the Constitution (e.g. treaties of European integration) must be passed by a three-fifths majority in Parliament and ratified by a national referendum.
Article Four: Local Government
Article Four recognises and guarantees the independence of elected local Councils, which are also to be elected by proportional representation. The Islands authorities (Orkney, Shetland and the Western Isles) also have certain guaranteed privileges which may not be removed by ordinary legislation.Note: the constitutionally guaranteed status of local Councils was not included in the 1977 document, but has been included in the 2002 version.
Article Five: The Judiciary
The Constitution recognises the independence of the judiciary:(1) Judges are to be appointed by the Head of State on the advice of an independent appointments commission, consisting of the Lord Advocate
Lord Advocate
Her Majesty's Advocate , known as the Lord Advocate , is the chief legal officer of the Scottish Government and the Crown in Scotland for both civil and criminal matters that fall within the devolved powers of the Scottish Parliament...
, the Presiding Officer of Parliament, a Senator of the College of Justice
Senator of the College of Justice
The Senators of the College of Justice are judges of the College of Justice, a set of legal institutions involved in the administration of justice in Scotland. There are three types of Senator: Lords of Session ; Lords Commissioner of Justiciary ; and the Chairman of the Scottish Land Court...
and two impartial members elected by Parliament.
(2) Judges may only be removed from office, for misconduct, by a two-thirds majority vote of Parliament.
Article Six: Fundamental Rights and Liberties
The Constitution entrenches a number of fundamental rights and liberties, including freedom of speech, religion, assembly, movement, privacy, fair trial, due process etc. These are based on the European Convention on Human RightsEuropean Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
.
Social and economic rights, such as entitlements to public housing, unemployment benefit, pensions, public healthcare, and education, are included, but there is no protection for trial by jury
Trial by Jury
Trial by Jury is a comic opera in one act, with music by Arthur Sullivan and libretto by W. S. Gilbert. It was first produced on 25 March 1875, at London's Royalty Theatre, where it initially ran for 131 performances and was considered a hit, receiving critical praise and outrunning its...
and no rule preventing double jeopardy
Double jeopardy
Double jeopardy is a procedural defense that forbids a defendant from being tried again on the same, or similar charges following a legitimate acquittal or conviction...
.
The rights and liberties guaranteed in the Constitution may be waived during a State of Emergency
State of emergency
A state of emergency is a governmental declaration that may suspend some normal functions of the executive, legislative and judicial powers, alert citizens to change their normal behaviours, or order government agencies to implement emergency preparedness plans. It can also be used as a rationale...
. A State of Emergency must be approved by a three-fifths majority of the members of Parliament within two weeks, and may continue for up to three months, after which it must be renewed by Parliament.
Article Seven: Amendments
The Constitution may be amended by a three-fifths majority vote of Parliament, subject to approval by a majority of the people in a referendum.Other noteworthy features
(1) The SNP draft Constitution is noticeably shorter than most modern (post-1945 and post-1989) European Constitutions, at around 6000 words.(2) The relationships between the Executive and the Parliament are not clearly defined, particularly with regard to the election of a Prime Minister and the procedure for votes of confidence. This leaves scope for the regulation of these matters by law, standing orders of Parliament, or, in the absence of such provision, by existing parliamentary custom.
(3) In contrast to contempary European practice, the SNP's Constitution for Scotland does not clearly distinguish between the respective roles of the Head of State and the Executive (compare with the Constitutions of Spain or Sweden, where such a distinction is explicitly made).
(4) The Constitution does specify the size of Parliament, only that it must be at least four times the size of the Executive (the number of Ministers is limited to one-fifth of the members of Parliament).
(5) The qualifications for membership of Parliament, and any incompatibilities between membership of Parliament and other public offices, are unspecified. These matters are subject to determination by Parliament, in accordance with the usual legislative process.
(6) There is no mention in the Constitution for an Auditor-General or an Ombudsman, although both institutions currently exist in Scotland under Statute law. There is provision for Freedom of Information, but no reference to the Scottish Information Commissioner
Scottish Information Commissioner
The Scottish Information Commissioner is responsible for the promotion and enforcement of the Freedom of Information Act 2002 and the ....
.