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While the Constitutional Commission takes the view that any constitutional settlement is for the people of Scotland to decide, we think it is important to help examine what form any such settlement may take. To this end a Draft Constitution for an independent Scotland is now available on-line for viewing and comment. Take part in a conversation to help shape Scotland's constitutional future and improve our democracy.
Note: The purpose of this page is to discuss the Draft Constitution and the constitutional structure of Scotland in the event of independence. It may be worth repeating that the Constitutional Commission, while acknowledging the sovereignty of the people as the source of all political authority, does not take a collective view on the desirability, or otherwise, of independence. Please see also the proposal for "Secure Autonomy" within the UK. INTRODUCTORY NOTE: DESIGNING A CIVIC CONSTITUTION
The “constitutional” debate in Scotland has focused mainly on the relationship between Scotland and the rest of the United Kingdom. Little thought has so far been given to the design of a future Scottish Constitution in the event of a “Yes” vote in a referendum on independence. Perhaps there is a sense, amongst those advocating independence, that these constitutional problems will resolve themselves after the question of independence has been settled. If independence happens, however, there will be many practical problems to deal with, and good constitutional design is likely to be forgotten in the rush to set up embassies and post offices. The time to think about constitutional matters is now, ahead of any referendum. Otherwise, we could easily end up achieving independence, but not achieving well-constitued liberal-democratic freedom: and, as the history of twentieth century decolonisation teaches us, these two are not synonymous. If Scotland does become independent, surely people of good will from all parties and none will want Scotland to be a successful liberal-democracy, like Ireland or Finland, not a troubled State like Zimbabwe or Pakistan. Part of the key to that success is getting the Constitution right. Most countries which became independent from the United Kingdom in the last 50 years were given an off-the-shelf Constitution of dubious quality produced by the old Colonial Office. These tended to replicate in miniature the faults of the Westminster system – namely, excessive concentration of power in the hands of the Prime Minister and a lack of checking and balancing institutions. To become independent under such a Constitution would be a disaster: it would merely transfer power from an irresponsible Prime Minister in London to an irresponsible Prime Minister in Edinburgh. Scotland must, at all costs, avoid making this mistake. The basic outlines of a suitable Scottish Constitution are quite clear. Following on from the Scotland Act, the Claim of Right, and the proposals of the Scottish Consultative Steering Group, an independent Scotland would be a parliamentary democracy, with a Parliament elected by proportional representation for fixed terms, an executive elected by and accountable to parliament, a ceremonial head of state, an independent judiciary, and a written Constitution with an enforceable liberal Bill of Rights. All this, in the words of the late Prof. Neil MacCormick, is part of the "common stock of democratic thought in Scotland today". Nevertheless, these basic outlines leave many questions of detail unanswered in the event of Scotland becoming independent and seeking to establish a Constitution. Informed public debate on these questions will help to develop a "Civic Constitution" which serves the aspirations of the people of Scotland for a better quality of democracy, rather than a "Civil Servants' Constitution" which replicates in minature all the secrecy and unaccountability of the Westminster system. That's why the Constitutional Commission has produced a Draft Constitution for Scotland. It is intended to give some precise institutional shape - in the event of independence - to the principles of LIBERTY, EQUALITY, DEMOCRACY, ACCOUNTABILITY, PARTICIPATION, CO-OPERATION and SUSTAINABILITY unanimously agreed by the Constitutional Commission. Our hope is to advance the quality of constitutional design in Scotland by showing that viable and attractive alternatives to the Westminster model exist. The Draft Constitution has been developed over several years in association with comparative political scientists drawing on countries such as Ireland, Iceland, Malta, Sweden, Denmark and Belgium, and it represents our attempt to balance what is known to be "good" with what is thought to be practical. In terms of specific content, the proposed Constitution builds on the general principles of the SNP’s 2002 draft Constitution and draws from a text first produced in the 1960s and published by Robbie Moffat in 1993, but it also incorporates advances in comparative politics and comparative constitutional law to provide for a better quality of democracy. This is not a final or definitive statement of our constitutional policy, nor is it an attempt to produce an "ideal" Constitution. Rather, it is designed to show what a good Constitution for an independent Scotland might look like, based on Scotland's developing constitutional tradition and the best practices of other small European liberal-democracies. This "work in progress", having been given initial shape by the "constitutional experts", now needs to be improved and refined by a wider body of public opinion. That's where this blog page comes in. This is your opportunity to make comments and suggestions. We encourage your responses.
A PROPOSED CONSTITUTION FOR SCOTLAND PART ONE – FOUNDATIONS OF THE STATE
(1) Scotland is a free, independent and democratic State. Sovereignty resides in the people of Scotland, who shall exercise their powers directly by referendums and indirectly through an elected Scottish Parliament and elected local authorities.
(2) All powers shall be subordinate to this Constitution, which is the Supreme Law of Scotland. Any Act of Parliament, regulation, or other law, which is incompatible with this Constitution, shall, to the extent of its incompatibility, be deemed null and void.
(3) All persons who were domiciled in Scotland at the time of the promulgation of this Constitution shall be citizens of Scotland. Thereafter the acquisition and loss of Scottish citizenship shall be determined by law. The law may allow dual citizenship.
Parliament, by a resolution passed by a two-thirds majority, may confer Honorary Citizenship on persons who have made contributions to Scottish life.
(4) Scotland is, in territory, all the mainland and islands subject to the jurisdiction of the Scottish Courts. Scotland asserts its claim to territorial waters and to its exclusive economic zone according to international law. The capital of Scotland is Edinburgh.
(5) The National Flag and civil and naval ensign is the White Saltire on Azure Blue. The national badge and emblem of public authority is the Thistle proper. The Motto is “Nemo me impune lacessit”. The National Anthem is “The Flower of Scotland”.
(6) English and Gaelic shall have equal status as the official languages of Scotland. The right of Gaelic speakers to use their language in public education, broadcasting, and local administration, as well as in Parliament and the courts, shall be guaranteed. PART TWO – BASIC RIGHTS AND LIBERTIES
(7) All citizens are equal in rights and obligations, and are equal before the law.
(8) The State shall not violate the person or the liberty of the individual, nor shall any individual be deprived of personal liberty or property except by due process of law.
(9) No private property may be taken for public use except by an Act of Parliament which makes provision for prior compensation to be paid to the owners at full value.
(10) All persons shall have freedom of religious belief and worship, and there shall be no discrimination on grounds of religion. No religion shall be made compulsory, and any State support for religious educational or charitable bodies shall not discriminate between different bona fide faiths and denominations. The Church of Scotland shall be independent of the State under the provisions of the Church of Scotland Act, 1921.
(11) All citizens shall have freedom of expression and of dissemination of opinions and facts by speech, by writing, and by all visual and auditory media, subject only to the laws of decency and obscenity, and subject to civil laws concerning defamation.
(12) All citizens shall enjoy the right of unrestricted access to information: there shall be no censorship of facts or opinions. There shall be a general right of public access to official documents, except in so far as this may be specifically restricted by law to protect national security, commercial or personal privacy, or the due process of law.
(13) All citizens shall have the right of peaceable assembly, and the right to demonstrate and protest, and to petition collectively for redress of grievances.
(14) All citizens shall have the right to form and to join associations and societies, except where their objects or activities violate the constitutional rights of others.
Citizens shall have the right to form and to join political parties and trade unions. No-one shall be compelled, as a condition of his or her employment, to support, to join, or to abstain from joining, any political party or trade union.
Trade unions have the right to negotiate collective bargaining agreements, and, after a secret ballot of members, to strike and picket to enforce such agreements.
The right to form or join trade unions, and to strike, may be limited by law in the case of members of the Armed Forces and those working in vital public services.
(15) The privacy and secrecy of the home, of a person’s private, family and social life, and of their business and travel, shall be guaranteed against State surveillance.
Every citizen shall be secure in their persons, premises, papers, and effects, against unreasonable searches and seizures; and, except where there is immanent danger to life, a search or seizure must be authorized by a specific judicial warrant.
The privacy and secrecy of the mail, internet, and telecommunications, shall be guaranteed, and no communications shall be monitored or intercepted except on a search warrant issued by a Sheriff, based on reasonable suspicion of criminal activity.
The privacy and secrecy of personal data shall likewise be guaranteed, and the terms of the Data Protection Act, 1998, shall be directly binding as constitutional law. (16) Every citizen has freedom of movement within Scotland and the right to enter and leave the country at any time. This right may be restricted only in the case of persons on bail or parole, persons who are subject to a criminal investigation, and persons whose movement is restrained by a Court Order to protect the constitutional rights of others.
(17) All forms of torture, whether mental or physical, and all cruel and inhumane treatments, whether for interrogation, punishment, or other cause, are prohibited.
(18) All forms of slavery, debt-bondage, and involuntary servitude, are prohibited.
(19) No person shall be accused, arrested or detained, except in cases ascertained by law, and according to the forms which the same has prescribed. No person shall be punished but in virtue of a law promulgated prior to the offence, and legally applied.
No person shall be detained in custody longer than forty-eight hours before being brought before a court and charged with a breach of the law.
Every person when charged with a breach of the law shall be presumed innocent until his or her guilt has been proven in a court of law.
All prisoners shall, before conviction, be bailable by sufficient securities, except for serious offences when the proof is evident, or when there is good reason to believe that the prisoner would break bail, harass witnesses, or tamper with evidence.
No person shall, for the same offence, be twice put in jeopardy of punishment.
(20) In all criminal prosecutions, the accused has a right to a speedy and public trial; the right to be heard by himself or herself and counsel; the right to be informed of the nature and cause of the accusation; the right to be confronted by the witnesses against him or her, and to have compulsory process for obtaining witnesses in his or her favour. The accused also has the right to free legal advice and representation.
The right to trial by jury, as it existed in Scotland at the time of the ratification of this Constitution, is guaranteed, and may not be restricted, limited, or abolished.
The trial of any person who has been charged and detained in prison, or remanded on bail, must be completed within a period of one hundred and ten days from the day on which he or she was committed, except as hitherto provided by law.
No person shall be compelled to give evidence against himself or herself.
(21) The aforesaid rights are additional to those specified in the European Convention on Human Rights, 1950 and its protocols, which shall be directly binding in Scotland.
(22) In event of war, invasion, disaster, unrest, or other grave emergency, Parliament, by a two-thirds majority vote, may declare a State of Emergency. During the State of Emergency, the Executive Council may enact Emergency Decrees having the force of law.
If necessary, these may restrict freedom of assembly, the right to strike, freedom of movement, and the right to trial by jury. The period in which a person may be held without charge may be extended to thirty days. No other constitutional rights shall be restricted or suspended. Parliament may not be prorogued during the Emergency.
A State of Emergency shall not continue for more than six months, and shall not be renewed more than twice. At its expiry, all Emergency Decrees are annulled.
PART THREE – SOCIAL, ECONOMIC AND ENVIRONMENTAL PROVISIONS
(23) Private property is recognised as the basis of the social and economic system, but the rights and duties of property ownership, and the extent of individual and corporate ownership of property and resources, shall be regulated by law for the common good.
All unnatural monopolies shall be prohibited. Natural monopolies, especially those which provide essential services, shall regulated by law for the public good.
Nothing in this Constitution shall prevent Parliament from levying taxes on the inheritance of estates, or mandating the equal division of estates between heirs.
(24) The law shall prevent the exploitation of workers and employees through the regulation of hours, wages, and working conditions. The law shall also guarantee days of rest and paid holiday, and shall protect employees against unfair dismissal.
(25) The law shall regulate credit and banking to prevent the exploitation of debtors.
(26) The State shall protect people against the hazards of illness, accident, old age, and unemployment, through a National Insurance scheme to be established by law.
(27) The State shall protect marriage and the family as basic institutions of society.
Homosexual couples shall have the same family law rights as heterosexual couples.
Nothing in this Constitution shall be construed as restricting the right of a woman to terminate her pregnancy in accordance with the provisions of the Abortion Act, 1967.
(28) The State shall promote organic farming and sustainable farming practices, and shall prevent any farming method which causes needless harm or distress to animals.
(29) The State shall take all reasonable steps to decommission nuclear and fossil-fuel power stations, and to develop renewable energy sources to meet future needs.
(30) Custodial sentences shall not be used unless necessary, for violent and serious offences; and prisoners are at all times to be treated with humanity and compassion.
(31) Every citizen of Scotland shall have a moral duty to treat all people with due respect, courtesy, tolerance, and compassion, and to respect the principles of liberal-democracy and the rule of law. These duties shall not be enforceable, but may be encouraged by the public authorities. All parents, legal guardians, and educators, have a particular calling to promote these values as the foundations of a free society.
(32) Educated and virtuous citizens being necessary for the preservation of liberty, and for the advancement of our civilisation, the local authorities shall establish free public schools in accordance with the law, shall provide libraries and museums, and shall otherwise promote learning, culture, sciences and humane arts.
Universities shall be supported from public funds according to law, but they shall be fully autonomous in their administration, research, publication, and teaching.
(33) Parliament shall provide by law for the establishment of an independent and non-partisan Broadcasting Authority to oversee the licensing of television, radio, and other forms of broadcasting, to ensure that no person, group, party, or corporation, is able to establish a dominating market position, and to ensure political balance and pluralism.
There shall be an independent Scottish Broadcasting Corporation, established by law, to provide public-interest programmes of high intellectual and cultural calibre.
(34) Articles 23 to 33 inclusive shall not give rise to any direct legal right or duty, but are intended solely for the direction of Parliament in making laws and the guidance of the Constitutional Court in deciding on the constitutionality of new and existing laws.
PART FOUR – THE MONARCHY
(35) The Monarch, styled “His (or Her) Grace, the King (or Queen) of Scots”, is the representative and guardian of Scotland’s liberty, independence and Constitution.
(36) The office and title of Monarch shall be vested in the lawful heir to the Scots Crown, which shall be hereditary in accordance with a Succession Act enacted by Parliament.
Parliament may alter the regular order of succession by particular exclusions on the grounds of incompetence or gross misbehaviour; and in case of any disputed succession, or the failure of an heir, the successor shall be appointed by Parliament.
During the Monarch’s minority or incapacity a Regent shall be appointed by Act of Parliament to exercise the functions of the Monarch according to this Constitution.
(37) The Monarch, as a non-partisan Head of State, shall perform his or her official functions, in accordance with this Constitution, on the binding advice of the Executive Council (Articles 54, 92 and 96), or Prime Minister (Articles 71 and 75), or Presiding Officer (Article 55), or Council of Judiciary (Articles 39, 82 and 83), or upon a resolution of Parliament attested by the Presiding Officer (Articles 40, 49, 74, 76, 90, 95 and 97).
Provided, however, that the power to appoint a Lord High Commissioner (Article 41), to prematurely dissolve Parliament (Article 48), and to refer bills for judicial review (Article 65), shall be exercised by the Monarch according to his or her own discretion.
The Monarch shall also have the authority, at his or her own discretion, but after consultation with the Prime Minister, Leader of the Opposition, and Presiding Officer, to address the people on civic occasions and at times of public emergency, to preside over public ceremonies, and to appoint members of the Royal Household according to law.
The Monarch shall be informed in general terms by the Prime Minister of the decisions of the Executive Council, but he or she shall not be present at its meetings.
(38) The Monarch shall be crowned in Scotland with the Scots Crown, in the presence of the Scottish Parliament, within thirty days after ascending the throne.
The Monarch, upon coronation, shall take an oath “to defend and obey the Constitution, and faithfully to perform the duties of King (or Queen) of Scots”.
(39) The powers of pardon and grace shall reside in the Monarch, who shall act in accordance with the advice of the Council of Judiciary in the exercise thereof.
(40) The Monarch, acting on a resolution of Parliament, shall confer decorations for distinguished public services; but no hereditary titles shall be granted or recognised.
(41) A Lord High Commissioner shall be appointed by the Monarch to serve as his or her official representative, and to perform the duties of the Monarch when the latter is absent from Scotland. The Lord High Commissioner shall serve for up to one year. All powers and duties vested in the Monarch by this Constitution may be delegated to the Lord High Commissioner by letters-patent. However, discretionary powers under Article 48, Article 65, and this Article, shall be exercised only on the personal instructions of the Monarch.
PART FIVE – THE LEGISLATURE
(42) The Parliament of Scotland, herein generally referred to as “Parliament”, is the highest representative, deliberative and legislative assembly of the Scottish people.
Parliament shall have the power, subject only to this Constitution, to enact, amend and repeal all laws for the peace, order and good government of Scotland.
(43) Parliament shall be elected by direct universal suffrage and by secret ballot, using the Single Transferable Vote system of Proportional Representation, in multi-member constituencies. Each constituency shall return from four to seven members.
Subject to this Constitution, the method and manner of electing the members of Parliament, and for the filling of any casual vacancies, shall be determined by law.
(44) The number of Members of Parliament shall be determined by law, but it shall not have fewer than one hundred and thirty, nor more than two hundred, members.
The ratio between the number of members to be elected from each constituency and the population of the constituency, as ascertained at the last preceding census, shall as far as practicable, be the same throughout Scotland.
(45) Every citizen who is at least 18 years of age shall have the right of voting in parliamentary elections, except: (i) criminals serving a custodial sentence; and (ii) persons deemed incapable under the Adults with Incapacity (Scotland) Act, 2000.
(46) Every candidate for election as a Member of Parliament must be a citizen of Scotland over 21 years of age who has the right to vote. Persons currently holding administrative, judicial, military or diplomatic office may not, however, be elected.
(47) An independent and non-partisan Electoral Commission shall be established to monitor all elections, to ensure that elections are free and fair, to enforce campaign finance regulations, and to make recommendations to Parliament for the revision of constituency boundaries, and for the reform of electoral and campaign finance laws.
The Electoral Commission shall consist of a Chairman, who shall be a former judge appointed by the Constitutional Court, and five members appointed on merit by the unanimous consent of the Parliamentary Bureau. No member of Parliament, or of a political party, may be a member of the Electoral Commission. The members of the Electoral Commission serve for a term of five years, and may not be removed except by a two-thirds majority of Parliament on the grounds of misconduct or incapacity.
(48) Parliament shall be elected for a fixed term of four years, after which a general election shall be held; but the Monarch, acting at his or her own discretion, may dissolve Parliament before the expiry of its full term, and call a new general election within thirty days, if a Prime Minister has not been nominated within thirty days after Parliament’s first meeting following a general election, or within thirty days after the death, resignation, or removal from office, of the former incumbent Prime Minister.
(49) The Monarch shall also dissolve Parliament and call a new general election within thirty days if two-thirds of the members of Parliament, by resolution, request a dissolution in order to resolve a political crisis or to seek a new legislative mandate.
(50) Each duly elected Member of Parliament must make and subscribe solemn declaration that he or she will “uphold the Constitution and faithfully serve the interests of the Scottish people” before becoming eligible to take his or her seat.
(51) A Member of Parliament can only be deprived of his or her seat, during his or her term of office, by a two-thirds majority vote of the Parliament, upon conviction by Parliament of gross misbehaviour, as specified in the Standing Orders of Parliament.
A Member of Parliament cannot be arrested or cited civilly, or tried, for any opinions or comment expressed in Parliament, nor for statements made or activities undertaken in pursuance of his or her parliamentary duties.
(52) Each Member of Parliament shall receive such remuneration and expenses as shall be determined by law, but a law to increase these remuneration and expenses shall apply only to those elected after the law comes into effect. Office space and secretarial services shall be provided by Parliament for the benefit of each Member.
(53) Members of Parliament may speak and vote according to their consciences and their understanding of the public good, and shall not be bound by any party mandate.
(54) The Monarch shall summon and prorogue Parliament on the advice of the Executive Council.
(55) The Monarch shall be required to summon Parliament, on the advice of the Presiding Officer, if so requested by at least twenty-five members of Parliament.
(56) Subject to the two preceding Articles, and except when interrupted by a general election, sessions of Parliament shall commence on the first Tuesday in October and shall end on the Monday preceding the first Tuesday in October of the following year.
(57) The seat of Parliament shall be Edinburgh, but Parliament may be summoned to meet elsewhere if exceptional circumstances make meeting in Edinburgh impractical.
(58) Parliament shall be presided over by a Presiding Officer, who shall be elected from the Members of Parliament at the first meeting of the first session after every general election. A Deputy Presiding Officer shall be elected in the same manner.
The Presiding Officer and Deputy on election must resign from membership of any political party. They must perform their duties with the utmost impartiality.
The Presiding Officer shall be responsible for the effective functioning of the Parliament and shall exercise domestic authority through the Parliamentary Corporate Body, and shall be controller of Parliament’s administrative officials and employees.
(59) Parliament shall lay down its own rules of procedure, including the conduct of business and maintenance of order. Such rules, known as Standing Orders, must be adopted and amended with the consent of two-thirds of the Members of Parliament.
(60) Meetings of Parliament and its committees shall usually be conducted in public. Closed meetings can only be held on matters concerning national security, and then only by the consent of two-thirds of Parliament.
(61) During the first week of each annual session (but after the election of a Presiding Officer and any other formal business) the Prime Minister shall inform Parliament of the “State of the Nation” and present to it the Executive Council’s legislative agenda.
(62) The legislative programme and order of business of Parliament shall be arranged by the Parliamentary Bureau.
The Parliamentary Bureau shall consist of: (i) the Presiding Officer; (ii) the Deputy Presiding Officer; (ii) two members of Parliament elected by each party caucus which has at least twenty-five members of Parliament; and (iv) one member elected by each party caucus or non-affiliated group which has at least five members.
In allocating times, the Parliamentary Bureau shall give precedence to the proposals of the Executive Council; but at least one fourth of the legislative time during each session must be reserved for Private Members’ and Opposition Bills.
Any balance of legislative time outstanding from the Executive Council’s allocation may be devoted to Private Members’ and Opposition Bills and Measures.
(63) No Bill shall be adopted by Parliament until it has been read three times in Parliament and passed by a simple majority vote of Parliament at its third reading.
Every Bill which has been passed by Parliament under this Article shall be presented by the Presiding Officer to the Monarch for the Royal Assent within
thirty days, but no sooner than fifteen days, after being passed at the third reading.
Provided, that a bill which is certified as urgent by two-thirds of the members of Parliament shall be submitted to the Monarch immediately after it has been passed.
(64) After the third reading of any Bill, other than a Money Bill, but before it is submitted to the Monarch for Assent, two-fifths of the members of Parliament may demand, by means of a petition to the Presiding Officer, that the Bill be submitted to a referendum. The presentation of the Bill for Assent shall then be suspended pending the outcome of the referendum, which shall be held within a period of three months.
If the Bill is approved by a simple majority of votes cast in the referendum, it shall be submitted for Assent without delay; but if not so approved, the Bill shall be deemed rejected, and may not be reintroduced until after the next general election.
Provided, however, that the Executive Council shall have the right, before the referendum is due to take place, to return the Bill to Parliament for re-consideration, with such amendments, if any, as the Executive Council shall deem fit. If the Bill is then re-passed by three-fifths of the members present and voting, a referendum shall not be required, and the Bill, in the form it is re-passed, shall be presented for Assent.
(65) The Monarch, within fifteen days after a Bill has been presented under Articles 63 and 64, shall grant Royal Assent to the Bill by signing it; the Bill shall thereby be enacted as law, and shall be promulgated in the official gazette.
Provided, however, that the Monarch may at his or her own discretion withhold assent to any Bill, which Bill he or she shall then immediately refer to the Constitutional Court for a ruling on its constitutional validity.
The Monarch shall be obliged to refer a Bill to the Constitutional Court if so demanded by means of a petition signed by one-third of the members of Parliament.
The Constitutional Court shall report within thirty days. If the Constitutional Court advises that the Bill is constitutional, the Royal Assent must be granted without further delay. If the Court advises that the Bill is unconstitutional, in whole or in part, the Monarch shall refuse Assent, and return the Bill to Parliament for reconsideration.
(66) Parliament may delegate subordinate legislative power to the Executive Council and to independent regulatory agencies and other public bodies established by law.
Delegated legislation must be laid before Parliament and its committees for at least forty days before coming into effect, during which time it may be suspended by a vote of a committee, pending approval or rejection by a plenary vote of Parliament.
Any delegated legislative power must be limited in scope, purpose, and time. Delegation shall not be used for legislation concerning the basic principles of civil or criminal law or procedure, the imposition of taxes, or the rights and duties of persons.
(67) Parliament shall exercise the financial power of the State in relation to: (i) the levying of taxes, duties, customs, and other public charges; (ii) securing loans on the public credit of the nation; and (iii) appropriating the sums necessary to meet public expenditures. The budget shall be prepared and proposed by the Executive Council.
(68) Members of Parliament shall have the right to ask questions of the Prime Minister and Ministers of State. All such questions must be answered fully and truthfully, within the time prescribed, on pain of a fine for contempt of Parliament.
(69) Parliament shall form Select Committees to scrutinise policies and legislation, They shall be chosen by proportional representation, shall have powers of summons and inquiry in matters of State, and may initiate Public Enquiries into any matter of government or administration. Ministers shall not be eligible for Select Committees.
(70) Parliament shall maintain its own library and archives, and shall have laid before it all State papers, laws, treaties, and the complete records of the Executive Council.
(71) Parliament may establish Royal Commissions for the strategic development of future policies and legislation based on the best available evidence. The purposes of each Royal Commission, its duration, powers, terms of reference, composition, and budget, shall be specified in the parliamentary resolution by which it is established.
Each Royal Commission shall consist of a Convenor and at least four other Commissioners. The Convenor shall be appointed by the Monarch on the advice of the Prime Minister after consultation with the Leader of the Opposition. The other Commissioners shall be appointed by the Prime Minister after consultation with the Convenor. The members of Royal Commissions may be appointed from the private sector, academia, civic groups, as well as from Parliament, local government and the Civil Service, according to their relevant knowledge, qualifications, and experience.
Royal Commissions shall be responsible to Parliament and shall report their findings and recommendations to Parliament annually, or more often when required.
PART SIX – THE EXECUTIVE
(72) The Executive powers of the State are vested in an Executive Council, which shall consist of the Prime Minister and Ministers of State. The Prime Minister shall be the Chairman of the Executive Council and shall summon and direct its meetings.
(73) The number of Departments of State, and their duties and responsibilities, shall be determined by law. Each Department shall be under the charge of a Minister of State, who may be assisted, as determined by law, by one or more Deputy Ministers.
(74) The Prime Minister shall be nominated by a resolution of Parliament and shall be formally appointed by the Monarch, who shall also receive his or her resignation.
The Prime Minister at the time of his or her appointment must be a member of Parliament, or must be elected to Parliament within thirty days after being appointed.
(75) The Ministers of State and Deputy Ministers shall be appointed, and may be removed, by the Monarch acting on the binding advice of the Prime Minister.
The Ministers of State and Deputy Ministers shall be appointed on merit from those who are eligible to be elected to Parliament. If they are appointed from outwith Parliament, they shall have an ex-officio right to sit and speak, but not to vote, therein.
The total number of persons holding office as Ministers of State or Deputy Ministers shall not exceed one-fifth of the total number of members of Parliament.
(76) The Executive Council and other chief executive officials shall be responsible, individually and collectively, to Parliament, which shall have the authority to call the Prime Minister, Ministers of State, and Deputy Ministers, to account for their actions.
If a motion of no-confidence in any Minister of State or Deputy Minister is passed by an absolute majority vote of Parliament, that Minister shall be dismissed.
If a motion of no-confidence in the Prime Minister is passed by an absolute majority vote of Parliament, the whole Executive Council shall resign, but they shall continue in office, in a caretaker capacity, until their successors have been appointed.
(77) If Parliament passes a vote of no-confidence in the Prime Minister, or if the Prime Minister dies or resigns, Parliament shall proceed to nominate a new Prime Minister under Article 74; but if no such nomination has been made within thirty days, the Monarch may dissolve Parliament and call an election under Article 48.
(78) The Prime Minister, Ministers of State and Deputy Ministers shall receive such remuneration as shall from time to time be provided by Acts of Parliament, but such remuneration shall not be increased or diminished during their continuance in office.
(79) All powers formerly vested in the Crown, unless abolished, limited, or granted to another body by this Constitution, or by law, shall be vested in the Executive Council.
(80) There shall be a professional, non-partisan Civil Service, selected and promoted on merit, and enjoying security of tenure during good behaviour, to assist Ministers in the administration of the State.
There shall be an independent Civil Service Board, to be established by law, to control the recruitment, selection, promotion, pay, and discipline of the Civil Service.
PART SEVEN – THE JUDICIARY
(81) The judicial authority shall be entrusted to the Constitutional Court, the Court of Session, High Court of Justiciary, Sheriff Courts, and other courts established by law.
(82) The Constitutional Court shall be composed of twelve members, who shall be appointed on merit by the Monarch, with the advice and consent of the Council of Judiciary as hereafter stated, from among those citizens who have served for at least five years as a member of the higher judiciary, or at least seven years a Professor of Law. The judges of the Constitutional Court shall serve for a single term of twelve years, with one-sixth of their number being appointed, in rotation, every second year.
(83) The power to appoint members of the Court of Session and of the High Court of Justiciary, Sheriffs, and all other members of the judiciary, including justices of the peace, shall reside in the Monarch, acting on the advice of the Council of Judiciary.
(84) The Council of Judiciary shall consist of: (i) the Minister of Justice, who shall be the ex-officio Chairman; (ii) the Lord President and Lord Justice Clerk ex-officio; (iii) a representative of the Faculty of Advocates; and (iv) seven lay-persons elected by Parliament, by secret ballot and proportional representation, for five-year terms.
(85) The final appellate jurisdiction of the Constitutional Court shall extend to:
(a) All questions concerning the constitutional validity of any law enacted by Parliament, or delegated legislation, or any treaty or international agreement;
(b) All questions concerning the alleged infringement of the Constitution or of the European Convention on Human Rights;
(c) All disputes concerning the constitutional assignment of powers and the exercise of powers within the State;
(d) All other matters arising which would, prior to independence, have come under the jurisdiction of the Supreme Court of the United Kingdom.
(86) In the event of the infringement, or alleged infringement, of this Constitution, or violation of any constitutional right or of any right under the European Convention, a person can seek legal redress, and has the right to appeal to the Constitutional Court.
(87) Every person appointed to exercise a judicial function under the Constitution shall subscribe a declaration that he or she will uphold the Constitution and the law.
(88) All judges shall be independent in the exercise of their judicial functions, and shall be subject only to the Constitution and the law.
(89) No person exercising a judicial function shall be eligible to be a Member of Parliament, nor to hold any other public office or other position of emolument.
(90) Judges of the Court of Session, Commissioners of Judiciary, and Sheriffs, shall enjoy security of tenure for life, or until reaching the retirement age specified by law. Members of the Constitutional Court shall enjoy security of tenure during their terms.
Members of the judiciary may only be prematurely removed from office by the Monarch, on the grounds of gross misconduct, neglect of duty, or incapacity, on the authority of a resolution passed by three-quarters of the Members of Parliament.
(91) The appointment of the Lord Advocate and the Solicitor-General shall reside in the Prime Minister, who shall make the appointments on merit after consultation with the Council of Judiciary. They shall be independent in the performance of their duties.
These officers shall not be members of Parliament, nor of the Executive Council. They may attend Parliament and the Executive Council, in a non-voting capacity, to give professional advice, and to answer questions related to their offices.
The Lord Advocate and Solicitor-General shall serve for renewable terms of five years, and may not be removed from office except for gross misconduct, neglect of duty, or incapacity, on a resolution of Parliament passed by a two-thirds majority.
PART EIGHT – ARMED FORCES
(92) The Monarch shall be Commander-in-Chief of the Armed Forces of Scotland, and shall command them according to law, on the advice of the Executive Council.
(93) Standing armies being a danger to liberty, the regular Armed Forces, whether by Land, Sea, or Air, shall be limited in times of peace to a total of 25,000 persons, and appropriations for the regular Armed Forces shall be limited in duration to one year.
(94) A well-regulated Territorial force, consisting in war of the whole people trained to arms, being essential to the security of a free State, Parliament shall make provision by law for the organization, discipline, training, and equipment, of a Territorial Army.
In times of peace the Territorial Army shall consist of volunteers, who shall serve on a part-time basis. In time of war, or threat of invasion, conscription into the Territorial Army may be imposed by Act of Parliament; all able-bodied enfranchised citizens between the ages of 18 and 45, unless exempted or disqualified by law, or unless they volunteer for regular service, shall be enrolled in the Territorial Army.
Provided, that no citizen shall be compelled against his or her conscience to render military service; and that no Territorial, whether volunteer or conscript, shall ever be required to serve outside of Scotland except with his or her personal consent.
Territorials may be called forth by Parliament in accordance with Article 95 in order to execute the laws, to suppress violent insurrections, to repel invasions, to provide disaster relief, and to maintain essential services in the event of disruption.
(95) No war may be declared, nor may Territorials be called forth into active service, nor any force be deployed outside of Scotland, except on a resolution of Parliament.
PART NINE – FOREIGN RELATIONS
(96) The Monarch, on the advice of the Executive Council, shall conduct Scotland’s relations with other States, appoint ambassadors, grant credentials to the diplomatic representatives of Scotland, and receive the credentials of those of other nations.
(97) Treaties and international agreements shall be ratified by the Monarch on the authority of a Parliamentary resolution, to be proposed by the Executive Council.
(98) Treaties may delegate certain powers to other States or international organisations, for the performance of common functions of mutual benefit, provided that such treaties: (i) neither undermine the essential sovereignty of Scotland, nor infringe the fundamental rights of Scottish citizens; and (ii) are endorsed by a referendum prior to their ratification.
PART TEN – OMBUDSMAN AND AUDITOR-GENERAL
(99) Parliament shall appoint a citizen of legal education, qualification and ability, and of personal integrity, as Ombudsman, to supervise, on behalf of Parliament, all national and local government administration, and other public authorities.
The Ombudsman shall keep under review the effects on the citizens of the application of laws, and shall receive by petition all complained of injustice and infringements of private and fundamental rights alleged to have been committed by, or caused by the negligence or mistake of, the government or other public authorities.
(100) Parliament shall appoint a citizen of administrative and financial experience and training, and of personal integrity, as the Auditor-General, to supervise, on behalf of Parliament, all national and local government accounting.
The Auditor-General shall be head of the National Audit Office, shall conduct regular audits of the public accounts, and shall make recommendations for improving economy and efficiency, and for reducing corruption.
(101) The Ombudsman and the Auditor-General shall be appointed by a resolution of Parliament passed by a two-thirds majority, on the nomination of an absolute majority of the Parliamentary Bureau. Their appointments shall be for a fixed term of five years, and they shall be eligible for reappointment for one further term of five years.
The Ombudman and Auditor-General shall be accorded the salary of a Judge of the Court of Session and granted an equivalent pension. They shall not hold any other office, nor be a member of any political party, nor have any other employment.
A Deputy Ombudsman and Deputy-Auditor, having the same qualities as their principals, may be appointed under the same conditions and for the same term.
The Ombudsman or Auditor-General, or their Deputies, shall not be removed from office before the expiry of his or her term except for gross misconduct, neglect of duty, or incapacity, by a resolution passed by a two-thirds majority of Parliament.
(102) The duties of the Ombudsman and the Auditor-General shall be laid down in general terms by law, but subject to these provisions they shall be independent of Parliament and of the Executive Council in the performance of their duties.
The Ombudsman and Auditor-General shall accorded full powers of investigation, including unreserved access to all records and correspondence.
They may cause to be brought to Court any matter requiring legal judgment, and may call on public authorities to take disciplinary action or other remedial action.
The jurisdiction of the Ombudsman and Auditor-General shall include Ministers, civil servants, and persons acting in the service of the State, or local government, but shall not include any court of law superior to magistrates courts.
(103) The Ombudsman and Auditor General shall each present an Annual Report to Parliament, in which they shall give an account of their activities, and make such recommendations as they shall deem necessary to improve public administration or finance. The Annual Reports shall be printed and published by the Stationery Office.
PART ELEVEN – LOCAL GOVERNMENT
(104) For the purposes of self-government and local administration, Scotland shall be divided by law into a convenient number of Districts and Cities, which shall then be sub-divided into Burghs or Communities.
Initially, the boundaries of Districts and Cities shall be based on those of existing Council Areas, while the boundaries of Burghs and Communities shall be based on those of the historical Burghs or existing Community Council areas.
Once established, boundaries of such areas shall not be amended except with the approval of the Councils of the areas to be affected, or of the people in a local referendum.
Subject to these and the following provisions, Parliament shall have the authority to legislate generally for the structure, composition, and organisation, of local authorities.
(105) Each District and City shall be governed by an elected Council of at least forty, but not more than eighty, members. Council members shall be chosen by the people of the District or City, by Single Transferable Vote, for triennial terms, as prescribed by law.
Each District and City Council shall appoint a Premier to serve as its chief executive. The Premier and other senior executive officers shall be responsible to the District or City Council, and may be removed from office by votes of no-confidence.
Each District and City shall have a Lord Provost or Convenor to preside over the Council and to act as the civic head of the community. Lord Provost or Convenor may be elected by the Council, or elected directly by the people, in the manner prescribed by law.
The powers and responsibilities of District and City Councils shall be determined, on the principle of subsidiarity, by Acts of Parliament. These powers and responsibilities may include, inter alia, devolved legislative and administrative authority over health, education, culture and the arts, public transport, infrastructure, planning and land use, housing, police, rural affairs, agriculture, economic development, and the environment.
(106) Each Burgh and Community shall be governed by a Council, consisting of: (i) at least twelve, but not more than eighteen, elected members, chosen by the people of the locality as prescribed by law; (ii) up to six nominated, co-opted, or ex-officio, members.
Burghs and Communities shall possess: (i) all powers and duties which were previously vested in the “small Burghs” before their abolition, subject to any specific restrictions imposed by law; and (ii) such further powers and duties as may hereafter be vested in them by law, or delegated to them according to law by their District or City.
(107) Local authorities shall receive a uniform share of the tax revenues raised in their respective areas as determined by law. They may also receive additional revenue from local sales and property taxes, service charges, grants-in-aid, and loans, according to law.
(108) All local authorities shall be autonomous in the exercise of their devolved powers, but subject to supervision and control by the Courts, Ombudsman, and Auditor-General.
PART TWELVE – SOCIAL AND ECONOMIC COUNCIL
(109) There shall be Social and Economic Council, which shall consist of: (i) fifteen representatives of employees, elected by trades unions; (ii) ten representatives of small businesses and self-employed tradesmen and artisans, elected by Chambers of Commerce; (iii) ten representatives of professional associations, elected by their professional bodies; (iv) five representatives of landowners owning more than 50 hectares of land; (v) ten representatives of agricultural co-operatives, crofters, and smallholders owning less than 50 hectares of land; (vi) four ex-officio University representatives – the Rectors of the Universities of St Andrews, Edinburgh, Glasgow, and Aberdeen; (vii) four ex-officio representatives of the Churches – the Moderator of the Church of Scotland, the senior Archbishop of the Roman Catholic Church in Scotland, the Moderator of the Free Church of Scotland, and the Primus of the Scottish Episcopal Church; (viii) four representatives of non-Christian religions in Scotland, elected by the Muslim, Hindu, Buddhist and Jewish communities; (ix) four ex-officio City representatives – the Lord Provosts of Edinburgh, Glasgow, Aberdeen and Dundee; and (x) five representatives of the Gaelic community.
The manner and timing of elections, the recognition of those who are entitled to elect or serve as representatives, and all other matters incidental to the constitution and organisation of the Social and Economic Council, shall be determined by law.
(110) The Social and Economic Council shall have the authority to examine and give its opinion on all bills proposed by Parliament which, in the opinion of the Council, concern social or economic affairs. If a majority of the members of the Social and Economic Council propose an amendment to a bill, that amendment must be debated and considered by Parliament, and voted on, before Parliament proceeds with the bill.
The Social and Economic Council shall give its opinion to the Government and to Parliament on social and economic questions, when requested, or at its own initiative. Its members may be summoned to give evidence to Select Committees.
PART THIRTEEN – CONSTITUTIONAL AMENDMENTS
(111) The Articles of this Constitution can be amended, whether by modification, addition, or repeal, only in accordance with the following provisions:-
(a) Amendments may be proposed by a Royal Commission established under Article 71, or by twenty Members of Parliament, or by means of a petition to Parliament signed by one-tenth of the electorate. Amendments may not be proposed when a State of Emergency under Article 22 is in effect, nor during the occupation of the country by any enemy force.
(b) An Amendment proposed under Section (a) of this Article shall be debated and considered by Parliament, and shall be provisionally adopted if it is approved by a two-thirds majority vote of all the members of Parliament.
(c) The provisionally adopted Amendment shall submitted to the decision of the electorate by means of a referendum, which shall be held at the same time as the next general election to the Parliament. If a majority of those voting in the referendum approve the Amendment, and if those approving are at least 40% of the total number of persons who are entitled to vote, the Amendment shall be promulgated as an integral part of the Constitution. (C) Copyright W. E. Bulmer 2009. All rights reserved. Last Updated WEB 2 Oct 2009
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