The draft Independence Bill and interim Constitution.

“One obvious issue here that the Convention might want to reopen would be the structure of the Parliament. A single chamber is not adequate to ensure proper scrutiny of legislation, and the current Scottish Parliament has often struggled, both in chamber and in committee, to do justice to their legislation.”  Local RIC activist Dr Sarah Hendry, writing in a personal capacity, examines the recently published draft Independence Bill and interim Constitution.
The Scottish Government has published a draft Independence Bill, and within it an interim Constitution. What do these documents mean?
The interim constitution is just that. It is intended to fill the space between 24 March 2016 (provisionally, Independence Day, ID hereafter) and the development of a finalised Constitution via some form of interactive and participative process. So that may answer one of the criticisms (from left and right, from Yes and No campaigners) which is that the (current) Government should not be issuing a Constitution at this stage. For myself, I have thought since they first announced their plans that it was a good thing; firstly, the time between the referendum and March 2016 is very short with many things happening. Secondly, and linked, it lets us have a look at, and think about, their proposals, ahead of the vote and (hopefully) that short and busy time.
This note will look at their proposed process first, and then at the actual content of the interim Constitution (hereafter, just Constitution).
The intention is that this Bill (subject to any changes resulting from this consultation) will be presented to the Scottish Parliament in the event of a Yes vote. It will be accompanied by a revised Scotland Bill – more on that below.
The process – starting in the autumn, the Bill will go through normal Parliamentary process, which includes consultation on the principles (stage 1) and then analysis of the detail (stage 2); at stage 1 it is normal for the Committee to invite written submissions as well as oral evidence. Anyone can contribute at that stage. So that will be another chance to make representations and engage.
A revised ‘Scotland Act’ will be proposed at the same time.
The final Constitution will follow; ‘as soon as possible’ after the first elections to an independent Parliament (May 2016), that Parliament will establish a Convention to develop this. So that perhaps answers another of the regular criticisms, that Salmond’s current government is trying to railroad a constitution. It would be up to the other parties to get enough seats in that election to have a deciding say, if they can.
But it would still only be a decision on the process, not on the final constitution which will be developed out of that process – so further opportunities later.
In the Bill, clause 33 makes outline provision, given here in full:

33 Provision for a permanent constitution
(1) The Scottish Parliament must, as soon as possible after Independence Day, make provision by Act of the Parliament for the establishment of an independent Constitutional Convention to be charged with the task of drawing up a written constitution for agreement by or on behalf of the people of Scotland.
(2) The Act must include provision for the Convention to be established, and to begin its task, as soon as possible after the Act is enacted.
(3) The Act must also include provision about—
(a) the membership of the Convention,
(b) the funding of, and administrative support for, the Convention,
(c) the time by which the Convention is to complete its task,
(d) the procedures and processes to be followed by the Convention in carrying out its task,
(e) the procedure by which the written constitution prepared by the Convention is to be agreed by or on behalf of the people,
(f) the dissolution of the Convention on the completion of its task.
(4) The Convention is “independent” if it, and its members and staff, are free from the direction or control of—
(a) the Scottish Government or any of its members, and
(b) the Scottish Parliament or any of its members.

The intention is therefore that the Parliament will establish a Convention as soon as possible, by another Act. That Act will establish:
its membership and funding arrangements; the time it has to draw up the constitution; its working methods; the procedure by which the constitution is to be approved; and its dissolution having completed its work. (consultation p.45).
It is intended to develop an inclusive and widely participative process involving many civic society groups such as trades unions, business interests, local councils, faith groups, community groups and – importantly – also extensively involving ordinary citizens. The current Scottish Government will be just one voice amongst many in this process. The Scottish Government would make proposals for some issues to be included in the constitution, as set out further in Chapter 5, but would not control the process or the content of the constitution… (p.45)
This intention for inclusivity and non-interference could be specified in this Bill at this stage.
Along with this Bill, the Government will also propose a revised the Scotland Act, and this too will only subsist until the Constitutional Convention; it could reopen this too – and for myself, I would think that would be necessary. But the Government’s intentions for the revisions to go through between the vote and ID are broadly as follows:
Retain the current electoral system and structure of the Parliament;
Repeal schedule 5 which reserves many powers to Westminster;
Repeal other provisions relevant to the relationship between Scotland and Westminster, especially the right of Westminster to legislate, and sovereignty of the Crown in Parliament;
But retain rules on ECHR and EU law compliance;
Guarantee a separate constituency to the Western isles (currently for Orkney and Shetland);
Consider new rules on disqualifying MSPs;
Maintain protections for parliamentary free speech and rules on noting interests, etc.;
Removal of references to the UK supreme court, but, a power to the Lord Advocate to refer a Bill to the Court of Session to determine if, eg it was incompatible with EU / ECHR (but not, so far, if incompatible with the Constitution. Those types of rules could come with the final version);
Retain the current standing orders on parliamentary / legislative process;
Begin a process of modernisation of prerogative powers: including accountability to Parliament for those powers exercised by Ministers;
Bring provisions from the Human Rights Act into the Scotland Act, in order to apply the current approach to Scottish legislation, to all legislation, including that carried over but originating in Westminster. This basically means that courts could strike down legislation that was incompatible, rather than just telling the Government it is incompatible as happens with Westminster (but not Scottish) Acts.
One obvious issue here that the Convention might want to reopen would be the structure of the Parliament. A single chamber is not adequate to ensure proper scrutiny of legislation, and the current Scottish Parliament has often struggled, both in chamber and in committee, to do justice to their legislation. For activists, it’s time to be thinking hard about what sort of second chamber might best suit our purposes and aspirations. That would be dealt with in detail in the standing orders which would also need revised if there was to be substantial structural change.
Reform of local government would be another possible issue. Although in our current system local government legislation is separate, and could be reformed separately, it is normal for a constitution to specify broadly the competences of different spheres of government. If one is supporting local autonomy one might argue for a subsidiarity-type principle, giving much more authority at local level.
The last part of the consultation looks at the status of these pieces of legislation in the context of the Convention and process. It will be for the Convention to discuss what entrenchments will be established to change the final constitution. The Government is committing itself to not making significant amendments to this Bill once enacted, prior to the Convention’s work. However there is no entrenchment as such (e.g. the need for a larger majority to change it) for this interim Bill. Instead the Government would commit itself, and would seek statements in agreement from other parties, and a parliamentary resolution, to guard against changes between ID and the final Constitution (most of which period would be after the next elections); as well as a process whereby other Bills in that period would be assessed for compliance with the interim Constitution. This would be an alternative to allowing the courts to strike down incompatible legislation, as Parliament would have known this explicitly; I am unconvinced by this but they do say it would only be for these interim rules and that the Convention itself could discuss entrenchment.
On the Convention process itself, the Government says it would propose a constitutional prohibition on nuclear weapons and restrict military activity to that in accordance with the UN Charter; and propose some 3rd generation human rights, including healthcare. They also outline some topics where others might wish to propose constitutional rights.
Responses, for anyone who wants to comment, should be made by 20 October. There are set questions in the document, but of course one can always send whatever comments one wishes.

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