Political rights

The constitutional aspects of the Scottish Government’s independence white paper are unlikely to attract as much attention during the referendum debate as, say, arguments about whether we would still be using the pound, or whether we could afford more public spending. But they contain points that could give rise to significant debate if we did have to devise the legal arrangements for a newly independent country.

First and foremost, what would Scotland’s constitution look like? The white paper, properly, does not attempt to be prescriptive, but proposes a convention by which a constitution could be “designed by the people of Scotland, for the people of Scotland”. That carries its own difficulties in achieving acceptance, as Andrew Tickell explains in his comment in our forthcoming December lead feature, but the Government’s further preferences also carry the risk of unintended consequences.

Few lawyers, I hope, would quarrel with embedding the European Convention on Human Rights in a new constitution. (It would be interesting to test Scottish public opinion on this, in light of the anti-Convention agenda currently prevalent in comment emating from London.) It is some of the other rights that the Government would “propose for consideration” in a Scottish constitution that could, it seems to me, prove a hostage to fortune.

These include rights in relation to healthcare, welfare and pensions; entitlement to public services and a certain minimum standard of living; and “other social and economic matters”, including a Youth Guarantee on employment, education or training.

The difficulty I see is that the more you underpin certain standards as constitutional rights, the more you are removing them from the political sphere – and these things are the very stuff of politics, at any level – and placing their scope, presumably, in the hands of judges, who already have to endure the taunt of being unelected when their decisions encroach on what is seen as the territory of elected politicians.

And on the Government’s plans, the whole burden would fall on our Senators of the College of Justice, with no further recourse to a Supreme or Constitutional Court. If there would be insufficient business for such a body, would it be unthinkable to follow those Commonwealth countries that allow appeal to the Privy Council, with whatever conditions of leave? Let its London seat not blind us to the breadth of experience and quality of reasoning that its judges bring to their work.

I hope to bring you more on this, and much else, as we approach referendum day. Meantime, I hope you enjoy your Christmas break. Something tells me we will need our batteries fully charged for next year.