Scotland's proposed new constitution

[Andalublue]

This was raised in another thread but I think the matter merits its own. Please contribute any thoughts on what is in it, what isn't in it. I think it's a fascinating document and US constitutionalists might find it interesting to speculate on what a 21st century document might look like in the light of the examples of older constitutions.

Here it is...

New Proposed Scottish Constitution

Here are a few thoughts.

Chapter III

(9) On ascending the throne, the Head of State shall take, in the presence of the Parliament, an oath to defend, enforce and obey the Constitution, to ensure that the Kingdom is governed with honesty and integrity, and to do equal right and justice to all citizens, according to law.

(10) Neither the Head of State nor heir apparent may marry, nor leave the Kingdom, nor accept any foreign honour, except by the prior consent of the Council of Ministers; and they may not accept any foreign Crown, or other office, except if authorised by Act of Parliament.

I wonder if a monarch can be required to obey a constitution. Not that they shouldn't, but whether this provision conflicts with heretofore UK legislation. What would Scotland do if she refused? Also, does para 10 require that she be resident in Scotland? And would it assume the right to control the relationship between her and her subjects in other sovereign nations?

Chapter IV

Paras 17/18
Why no stipulation that one vote shall have equal weight wherever cast? It says that each constituency shall have a minimum of 4 and a maximum of 8 members, but not that the number of members will be in strict accordance with the number of electors.

Para 19 says:

"No person holding any administrative, diplomatic, military or judicial office (other than a Ministerial office), nor any person holding a place or pension at the pleasure of the Crown or Ministers, shall be eligible to Parliament". Would one need to be eligible to hold office in order to stand for office? Or could one stand and then resign an excluded position if elected?

Para 20. Fixed-term parliaments. I like it. Personally I think 4 years is too short. I'd go for 5.

Oath of office. No mention of loyalty or allegiance to the crown. Interesting.

Para 28. So Parliament can decide to sit in session for only 90 days a year. Nice work if you can get it. Will MPs be paid pro rata for the days they attend parliament?

Para 32. MPs immune from arrest and prosecution except if waived by a 2/3rds vote to waive immunity. Nuh-uh. If an MP commits a crime they should be subject to the same treatment as any other citizen.

Chapter V

Para 36. Contradicts Para 34 where no mention is made of select committees having any right to amend bills. Para 36 says they have. Needs clarification.

Chapter VI

Para 44. So, almost 50% of ministers may be unelected co-optees who do not have to answer to a constituency electorate. I'm all for co-opting specific talent into government but this seems excessive. I'd say that at least 2/3rds of ministers should be MPs.

46. Parliament's right to dismiss ministers. I like the principle, but in practice wouldn't this lead to the possibility of a government killed off by death of a thousand cuts?

50. Civil servant security of tenure. I'd add that they may be dismissed for incompetence. Incapacity is not sufficient to cover this.

52. Parliamentary approval of military action. Bang on! Scots waahay!



Right. Six chapters down, 8 to go. I shall return. Be afraid and order in double Red Bull rations.

Anyone any thoughts?

 

[Ben K.]

(78) Everyone’s right to life shall be protected by law. The death penalty is abolished and prohibited. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary in defence of any person from unlawful violence, in order to effect a lawful arrest or to prevent the escape of a person lawfully detained, in action lawfully taken for the purpose of quelling a riot or insurrection, or when such death results from a lawful act of war. This Article shall not, however, be construed to prohibit the voluntary termination of a pregnancy, or voluntary euthanasia, under such circumstances and conditions as may be prescribed by law.

I'm not sure why the issue of the death penalty shall not be prescribed by law, is constitutionally out of the question, but issues like abortion and euthanasia would be.

(90) No public money may be assigned to religious causes: public money may be assigned to support the educational and charitable activities of religious bodies, and for the upkeep of religious buildings of historical significance, provided that such funds are distributed fairly between different bone fide religions and denominations, and not applied to proselytisation.

Their desired Head of State is also Supreme Governor of the Church of England. So, uh, what? Are they going to pay her or what?

 

[Ben K.]

(78) Everyone’s right to life shall be protected by law. The death penalty is abolished and prohibited. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary in defence of any person from unlawful violence, in order to effect a lawful arrest or to prevent the escape of a person lawfully detained, in action lawfully taken for the purpose of quelling a riot or insurrection, or when such death results from a lawful act of war. This Article shall not, however, be construed to prohibit the voluntary termination of a pregnancy, or voluntary euthanasia, under such circumstances and conditions as may be prescribed by law.

I'm not sure why the issue of the death penalty shall not be prescribed by law, is constitutionally out of the question, but issues like abortion and euthanasia would be.

(90) No public money may be assigned to religious causes: public money may be assigned to support the educational and charitable activities of religious bodies, and for the upkeep of religious buildings of historical significance, provided that such funds are distributed fairly between different bone fide religions and denominations, and not applied to proselytisation.

Their desired Head of State is also Supreme Governor of the Church of England. So, uh, what? Are they going to pay her or what?

 

[Andalublue]

I'm not sure why the issue of the death penalty shall not be prescribed by law, is constitutionally out of the question, but issues like abortion and euthanasia would be.



Their desired Head of State is also Supreme Governor of the Church of England. So, uh, what? Are they going to pay her or what?

Appears to me that this constitution is incompatible with EIIR as HoS. She couldn't accept its demands and hence they could choose an alternative. A Stewart perhaps?

 

[samsmart]

Just started reading it myself. I found the first bit chuckle-worthy.

(1) The Kingdom of Scotland is a free, sovereign and independent commonwealth. Its form of government is a constitutional, decentralised, representative and parliamentary democracy.

The very first article of the constitution of the Kingdom of Scotland outlines that it is not, in fact, an actual kingdom.

 

[Ben K.]

I'm not sure why the issue of the death penalty shall not be prescribed by law, is constitutionally out of the question, but issues like abortion and euthanasia would be.



Their desired Head of State is also Supreme Governor of the Church of England. So, uh, what? Are they going to pay her or what?

Appears to me that this constitution is incompatible with EIIR as HoS. She couldn't accept its demands and hence they could choose an alternative. A Stewart perhaps?

They clarify that the royal descent of the UK is legitimate in the eyes of the Kingdom of Scotland in the opening section I believe. They should either acknowledge the religious heritage of their country or opt for a secular elected official.

 

[Ben K.]

Just started reading it myself. I found the first bit chuckle-worthy.



The very first article of the constitution of the Kingdom of Scotland outlines that it is not, in fact, an actual kingdom.

Why does any of that preclude it from being a kingdom?

Constitutional monarchy - Wikipedia, the free encyclopedia

 

[samsmart]

Why does any of that preclude it from being a kingdom?

Constitutional monarchy - Wikipedia, the free encyclopedia

Well in Chap IV (16) it calls the Kingdom of Scotland a "Republic", as does the oath the Ministers must take in Chap VI (49).

 

[alexa]

This was raised in another thread but I think the matter merits its own. Please contribute any thoughts on what is in it, what isn't in it. I think it's a fascinating document and US constitutionalists might find it interesting to speculate on what a 21st century document might look like in the light of the examples of older constitutions.

Here it is...

New Proposed Scottish Constitution

Here are a few thoughts.

Chapter III

(9) On ascending the throne, the Head of State shall take, in the presence of the Parliament, an oath to defend, enforce and obey the Constitution, to ensure that the Kingdom is governed with honesty and integrity, and to do equal right and justice to all citizens, according to law.

(10) Neither the Head of State nor heir apparent may marry, nor leave the Kingdom, nor accept any foreign honour, except by the prior consent of the Council of Ministers; and they may not accept any foreign Crown, or other office, except if authorised by Act of Parliament.

That bit jumped out at me when I first read it. I suspect insisted on by a Republican!

I wonder if a monarch can be required to obey a constitution. Not that they shouldn't, but whether this provision conflicts with heretofore UK legislation. What would Scotland do if she refused? Also, does para 10 require that she be resident in Scotland? And would it assume the right to control the relationship between her and her subjects in other sovereign nations?

From an article in the Herald.

The monarchy would be retained as a ceremonial figurehead (as the queen of Scots), but its prerogatives would be curtailed.

Our future is waiting to be written: why Scotland needs a written constitution | Herald Scotland

Chapter IV

Paras 17/18
Why no stipulation that one vote shall have equal weight wherever cast? It says that each constituency shall have a minimum of 4 and a maximum of 8 members, but not that the number of members will be in strict accordance with the number of electors.

It says

(17) The Kingdom shall be divided by law into constituencies for the election of members of the Parliament, and each constituency shall return a number of members, to be determined by law in proportion to the number of enfranchised citizens resident therein.

I think your maybe nit picking there

Oath of office. No mention of loyalty or allegiance to the crown. Interesting.

Again the crown is ceremonial only.

Para 28. So Parliament can decide to sit in session for only 90 days a year. Nice work if you can get it. Will MPs be paid pro rata for the days they attend parliament?

Bit longer than the 60 days of Westminster though :shock:

How many days did the House of Commons sit (meet) during the last session?

60 days in the 2009-10 session

Frequently Asked Questions: Business - UK Parliament

Para 32. MPs immune from arrest and prosecution except if waived by a 2/3rds vote to waive immunity. Nuh-uh. If an MP commits a crime they should be subject to the same treatment as any other citizen.

Here is what is says

(32) The members of Parliament shall enjoy immunity from arrest and prosecution during the sessions of the Parliament; this immunity may be waved only by a two-thirds majority.

They are immune from arrest while in session in parliament presumably because they are needed and their arrest could affect the democratic process. I suspect this is more to prevent them being arrested at a critical moment However the Parliament have the right to say No they must be arrested - presumably if they had done something which was serious. Once the session had ended they would be arrested anyway and as you have pointed out sessions are not that long.

Chapter V

Para 36. Contradicts Para 34 where no mention is made of select committees having any right to amend bills. Para 36 says they have. Needs clarification.

Not sure it contradicts but the amendment possibly needs adding to 34. They obviously thought it was obvious.

Chapter VI

Para 44. So, almost 50% of ministers may be unelected co-optees who do not have to answer to a constituency electorate. I'm all for co-opting specific talent into government but this seems excessive. I'd say that at least 2/3rds of ministers should be MPs.

I don't understand where you are getting what you say.

44) The Prime Minister and a majority of the other Ministers, including the Minister responsible for finance, must be appointed from amongst the members of Parliament; the remainder of the Ministers may be chosen from outside of the Parliament, but, if so chosen, they shall have an ex-officio right to sit and to speak in Parliament, but not to vote therein.

Draft Constitution Now On Line | Constitutional Commission

46. Parliament's right to dismiss ministers. I like the principle, but in practice wouldn't this lead to the possibility of a government killed off by death of a thousand cuts?

Why? They can only dismiss a member by an absolute majority. Surely this would only happen very rarely and for good reason.

50. Civil servant security of tenure. I'd add that they may be dismissed for incompetence. Incapacity is not sufficient to cover this.

To my reading it looks sufficient but that may need tidying up. How incompetent do you need to be? If you are incapable of doing your job well you are incompetent. Depends on your reading.

(50) The Council of Ministers shall conduct the administration of the Kingdom shall take care that the laws be faithfully executed. They shall appoint, on merit and subject to such qualifications and disqualifications as may be enacted by law, such principal administrative officers and other officials as may be required by law. Unless otherwise stated by law, these administrative officers shall enjoy security of tenure during good behaviour, and may only be removed in cases of incapacity, neglect of duty, corruption, treason, or other such misconduct.

52. Parliamentary approval of military action. Bang on! Scots waahay!



Right. Six chapters down, 8 to go. I shall return. Be afraid and order in double Red Bull rations.

Anyone any thoughts?

It is important to remember this is just a draft proposal. Have a look at this Herald article. It makes the point that there are many things that need tidied up in this constitution but also that Independence does not equate with freedom and that the SNP would do well to bring this out as the Constitution, tidied up of course, before the referendum.

Our future is waiting to be written: why Scotland needs a written constitution | Herald Scotland

 

[Andalublue]

It is important to remember this is just a draft proposal. Have a look at this Herald article. It makes the point that there are many things that need tidied up in this constitution but also that Independence does not equate with freedom and that the SNP would do well to bring this out as the Constitution, tidied up of course, before the referendum.

It's late and I've just watched Match of the Day with a bottle of wine, so I can't respond point-by-point, but so far, so good. I'm aware it's a draft and am responding bearing that in mind. I'll continue tomorrow. It's a really interesting subject. All my constitutional politics seminars from 1982 are coming back to me.

 

[spud_meister]

Their desired Head of State is also Supreme Governor of the Church of England. So, uh, what? Are they going to pay her or what?

It's simple, they just pay her to be queen, and not a church person. If your logic held true, anyone with a position of authority in a church wouldn't be able to receive any state aid.

 

[alexa]

I'm not sure why the issue of the death penalty shall not be prescribed by law, is constitutionally out of the question, but issues like abortion and euthanasia would be.

I believe the death penalty being prohibited belongs in the Constitution. I would never support it that is my personal preference. However we know in the UK that many people who have since been reprieved would have been killed if we had a death penalty. Hence it is unlikely that in the UK Parliament which votes by conscience on this issue would ever vote it back - simply because many of those who would support it in principal also know they would inevitably be killing the innocent.

Unfortunately the mob would always go for the death penalty. Hence no death penalty should be sacrosanct and we retain our decency.

Euthanasia does come up for debate and it is not impossible a time may come when it is believed sufficient safeguards have been made to allow it to be legal. Abortion also could change with new discoveries and so on. They may still be subject to debate. The death penalty not.

 

[Ben K.]

I believe the death penalty being prohibited belongs in the Constitution. I would never support it that is my personal preference. However we know in the UK that many people who have since been reprieved would have been killed if we had a death penalty. Hence it is unlikely that in the UK Parliament which votes by conscience on this issue would ever vote it back - simply because many of those who would support it in principal also know they would inevitably be killing the innocent. Unfortunately the mob would always go for the death penalty. Hence no death penalty should be sacrosanct and we retain our decency. Euthanasia does come up for debate and it is not impossible a time may come when it is believed sufficient safeguards have been made to allow it to be legal. Abortion also could change with new discoveries and so on. They may still be subject to debate. The death penalty not.

You ever considered guilt beyond any doubt? Recording and empirical evidence of cruel and inhumane murderers with no hope of rehabilitation will advance with the times just as these issues will. No room for debate on that?

 

[Ben K.]

It's simple, they just pay her to be queen, and not a church person. If your logic held true, anyone with a position of authority in a church wouldn't be able to receive any state aid.

It's a position of authority within a church acting as head of state claiming to be completely secular. It;s the proposed Scottish constitution that makes the claim "anyone with a position of authority in a church wouldn't be able to receive any state aid."

 

[alexa]

You ever considered guilt beyond any doubt? Recording and empirical evidence of cruel and inhumane murderers with no hope of rehabilitation will advance with the times just as these issues will. No room for debate on that?

Yes, these things have been found. There are people who we know did dreadful things and they are in prison. There are also people who we had thought did such things and they have either died in prison and later been found innocent or later been found innocent and released.

I do not believe a 21st Century Liberal nation needs to allow for State Murder. Even if they are the worst beings ever to have been born - they can endure prison till they die. We do not need to sully our hands with their state authorised murder - and we would kill innocents too. That is a definite.

When I was a child we had a death penalty and people were hung. I used to have nightmares about it. It is totally unnecessary.

 

[Djoop]

I'm not particularly enthusiastic. I don't believe a 21st century constitution includes a monarch. And take para 32, mocking the important principle of equality before the law.

 

[Wessexman]

Yes, these things have been found. There are people who we know did dreadful things and they are in prison. There are also people who we had thought did such things and they have either died in prison and later been found innocent or later been found innocent and released.

I do not believe a 21st Century Liberal nation needs to allow for State Murder. Even if they are the worst beings ever to have been born - they can endure prison till they die. We do not need to sully our hands with their state authorised murder - and we would kill innocents too. That is a definite.

When I was a child we had a death penalty and people were hung. I used to have nightmares about it. It is totally unnecessary.

Murder is an illegitimate killing. Why would it have to be murder?

Justice means that one action deserves another. There is no other meaningful idea of justice, otherwise you are left only with social utility which is not justice but something completely different. Why can't he who has killed ten people deserve death, at least in principle? The problems with the soundness of conviction are something else, they may make us stop using the death penalty, but they can hardly make us throw words like 'state authorised murder' at it.

 

[samsmart]

I'm not particularly enthusiastic. I don't believe a 21st century constitution includes a monarch. And take para 32, mocking the important principle of equality before the law.

Personally, I don't think it's a very good constitution as written. I think one guy wrote it and wants other people to gush over it.

 

[alexa]

I'm not particularly enthusiastic. I don't believe a 21st century constitution includes a monarch.

I would prefer a Republic too but for historical reasons many people believe she is our Monarch as well. However with no powers, just ceremonial.

And take para 32, mocking the important principle of equality before the law.

I think you and andy are misreading that. I put my take on it is post 9.

http://www.debatepolitics.com/europe/116882-scotlands-proposed-new-constitution.html#post1060111047

 

[alexa]

Personally, I don't think it's a very good constitution as written. I think one guy wrote it and wants other people to gush over it.

No it was written by a lot of people. What do you think they should 'gush over'. That sounds like you do think there are some good things in it.

 

[Wessexman]

Personally, I don't think it's a very good constitution as written. I think one guy wrote it and wants other people to gush over it.

What I don't understand is why Scotland needs a constitution like this. Surely it simply has to disengage its current way of governing from any ties to Westminster, except perhaps through Her Majesty, and it would have a proper governing system. You can't solve all your governing problems with bits of paper with high sounding bits of ideology on them.

 

[Hobhouse]

Hello.

I am the author of that Herald article. I should point out that the draft constitution linked in this thread is a first draft produced by the Constitutional Commission.

Since then there has been a process of discussion, re-writing and polishing. The latest draft is available herehttp://www.constitutionalcommission.org/production/byre/images/assets/A%20MODEL%20CONSTITUTION%20FOR%20SCOTLAND(1).pdf (downloads .pdf file - I am the copyright holder, all rights reserved, fair use permitted).

I am happy to answer any questions you might have about this draft Constitution.

 

[Djoop]

I think you and andy are misreading that.

Indeed, thanks.

 

[Hobhouse]

Hello. I'm new here - my previous attempt to post might not have made it past the mods because it gave away my IRL identity.

Let's just say I am actively involved in the Constitutional Commission, a non-partisan charitable organisation for constitutional education and research.

The draft Constitution linked here - Draft Constitution Now On Line | Constitutional Commission - is an earlier version. Since then, it has undergone a process of discussion, revision and re-writing, in consultation with a variety of constitutional commission members and supporters, lawyers and civil servants. The latest version is here: http://constitutionalcommission.org...sets/A MODEL CONSTITUTION FOR SCOTLAND(1).pdf.

A few things to say by way of introduction.

Firstly, the aim of draft Constitution is to equip Scotland with a modern, 21st century, parliamentary democratic Constitution, at least equal to the Constitutions of other small, independent, Northern European democracies. It is chiefly inspired by Scandinavian examples.

Secondly, the basic philosophy behind it is to that of a 'constrained majoritarianism'. A governing party or coalition enjoying the support of a majority in the unicameral Parliament and having the confidence of the country behind it can legislate freely - to that extent, it is a majoritarian Constitution, more concerned with 'popular democracy' than with 'checks and balances'. This is achieved through having a parliamentary executive, where the Prime Minister is chosen by and accountable to Parliament. There is no second chamber. However (this is the 'constrained' part), the majority is limited by various other provisions intended to: (i) protect the basic structures of democracy, including the independence of the judiciary and civil service, from partisan abuse; (ii) maintain individual, group and minority rights; (iii) ensure proper discussion, scrutiny, oversight and accountability; and (iv) give a restraining or 'veto' power to the people on contentious legislation or on constitutional amendments. Again, all this is inspired by Scandinavian examples. It was felt that this approach would provide firm protection for individuals, minorities, and the opposition, while at the same time allowing more cohesive and responsible policy-making than is possible under a US-style 'separation of the powers' system.

Thirdly, the constitution was designed under several pragmatic constraints. Keeping the monarchy was a must - whatever the theoretical attractions of a republic might be, it's just not going to 'sell' in this climate: the monarchy is an important symbolic link. It's important, though, to note that the Queen would be Queen of Scots, in the same way as she's Queen of Canada - as an independent head of state of an independent realm, and that her powers and prerogative would be curtailed (the Queen's powers are not identical in all her realms - it's a matter for each country's constitution). Also, it was decided to build upon the draft Constitution already developed by the SNP, rather than starting completely from scratch - they'd done a lot of good work, and it seemed foolish to reinvent the wheel. Likewise, there are pragmatic constraints imposed by the European Convention on Human Rights and its protocols, which significantly determine the shape of the 'bill of rights' element.

Ask me anything!

 

[samsmart]

No it was written by a lot of people. What do you think they should 'gush over'. That sounds like you do think there are some good things in it.

Well, the constitution calls itself several times a "republic." But a republic is a system of government in which there are no inherited titles. And yet the constitution says that the Head of State will be instituted in Elizabeth II and her line.

There's a few other criticisms I have, but I'll have to get into those when I am more awake.