Building a New Scotland: Creating a modern constitution for an independent Scotland

The need for a written constitution

Key points

Unlike most countries around the world, the United Kingdom does not have a codified constitution; the UK's constitutional arrangements are derived from a range of laws, principles, conventions, precedents and court judgments.

Many of these conventions and principles are not legally enforceable rules and there is often disagreement about their existence, meaning and application.

The founding principle of the UK's constitutional arrangements is parliamentary sovereignty, where ultimate power and authority rests with the 'Crown-in-Parliament' at Westminster.

Independence would allow Scotland to create a new, modern, codified constitution that replaces the doctrine of Westminster sovereignty with the Scottish constitutional tradition of popular sovereignty, where power and authority rest with the people of Scotland.

Scotland's clear direction of travel has been to extend and protect human rights and equality safeguards. However, Scotland's ability to do so is limited by the devolution settlement. Independence would change that.

The Scottish constitutional tradition

In the Scottish constitutional tradition, the people are sovereign.

This means that the ultimate source of political power should be people in Scotland themselves, and that those who exercise power should do so on their behalf and with their consent.^[3]

The Claim of Right 1989, which underpinned the movement that led to the setting up of the Scottish Parliament, contains a modern recognition of the sovereignty of the people of Scotland. It has been endorsed by votes of both the Scottish Parliament and the Westminster Parliament.^[4] It begins by acknowledging "the sovereign right of the Scottish people to determine the form of government best suited to their needs"; a view supported by the majority of people in Scotland.^[5]

Westminster parliamentary sovereignty

The Scottish tradition contrasts sharply with the constitution of the United Kingdom. Unlike almost all countries around the world, the United Kingdom does not have a codified constitution; instead, the UK's constitutional arrangements are derived from a range of laws, principles, conventions, precedents and court judgments.^[6] These conventions and principles are not legally enforceable rules and there is often disagreement about their existence, meaning and application.^[7] The only constitutional rule, principle or convention that operates with any consistency in the UK is Westminster parliamentary sovereignty.^[8] But as Lord President Cooper noted, in the case of MacCormick v Lord Advocate in 1953, "The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law."^[9]

Under parliamentary sovereignty, the ultimate authority rests with "the Crown in Parliament".^[10] The Westminster Parliament can make any law it wishes about anything at all, without legal constraint. It cannot bind itself, so any law can be repealed or amended, no matter how important or fundamental. In the UK, almost all constitutional rules are ordinary law and can therefore be changed in the same way as any law can, through simple majorities in both the House of Commons and House of Lords, and through UK Government use of the Parliament Acts of 1911 and 1949, which enable (in specific circumstances) the passage of legislation without Lords approval.^[11]

As we set out in 'Building a New Scotland: Renewing Democracy through Independence',^[12] there is nothing in the UK's current constitutional arrangements that protects or guarantees the fundamental features of Scotland's democratic traditions, institutions or processes. Even conventions and principles that may have been thought to be commonly recognised and upheld accordingly can be set aside, as has happened regularly in recent years in Westminster.^[13] The UK's constitution is uncodified, open to interpretation, and ultimately rests upon sovereignty – and therefore, power and control – being vested in the Westminster Parliament.^[14]

Effects of Westminster sovereignty in Scotland

'Building a New Scotland: Renewing Scotland's Democracy' sets out the evidence of the impact of Westminster parliamentary sovereignty on Scotland's devolved institutions and self-government in Scotland. As that paper makes clear:

Under the UK's constitution there is no way to entrench or protect devolution. It will always be vulnerable to being overridden by the exercise of UK Parliamentary sovereignty and decisions of the UK Government.^[15]

Westminster sovereignty underpins the design and the operation of the devolution settlement.^[16] In the Lord Advocate's reference to the Supreme Court on whether the Scottish Parliament had the power to legislate for an independence referendum, the Supreme Court held that the question of Scottish independence "evidently encompasses the question whether the Union between Scotland and England should be terminated, and the question whether Scotland should cease to be subject to the sovereignty of the Parliament of the United Kingdom."^[17] The Supreme Court held that the proposed Bill was outwith the powers of the Scottish Parliament and reaffirmed Westminster parliamentary sovereignty.^[18]

While the Scotland Act 1998 provides for the permanence of the Scottish Parliament, and requires a referendum in Scotland before it could be abolished,^[19] a Westminster government with a majority and able to secure the agreement of the Houses of Commons and Lords could decide to change that legislation, as it wished. Westminster parliamentary sovereignty can also constrain the ability of the Scottish Parliament to legislate effectively in areas where it has responsibility and is entitled to take different decisions to those taken by Westminster. Under the UK's constitutional system, the Westminster government and Parliament can proceed despite the democratically expressed wishes of the people in Scotland – for example, in relation to the Brexit vote^[20] – and even alter the powers of the devolved institutions unilaterally, without their agreement.

Section 35 of the Scotland Act empowers the UK Government to stop a bill passed by the Scottish Parliament from becoming law, if it has 'reasonable grounds' to believe that the bill in question would have an adverse effect on the operation of the law as it applies to reserved matters. This provides the UK Government with an effective veto over the Scottish Parliament's powers in many circumstances.^[21]

This veto has recently been exercised in response to the Scottish Parliament's Gender Recognition Reform (Scotland) Bill, passed in December 2022 with a large majority and members from all five parties voting in favour of the legislation.^[22] This is the first time in 24 years of devolution that the Westminster government has chosen to exercise the section 35 power to make an order to block Royal Assent of a bill passed by the Scottish Parliament.^[23] There is no guarantee that it will be the last.

The UK Internal Market Act (2020) represents another undermining of devolution and the powers of the Scottish Parliament. This is most recently illustrated by UK Government's unilateral decision to impose conditions^[24] on Scotland's wholly devolved Deposit and Return Scheme Regulations^[25] from the Internal Market Act. Scotland's regulations were consulted upon and approved by the Scottish Parliament before the introduction of the Act. By not agreeing an exclusion from the Act for glass, the UK Government is imposing the removal of glass from Scotland's scheme to echo a more limited scheme for England that the UK Parliament has not yet approved. In doing so, the UK Government is not only ignoring its own analysis^[26] on the environmental, social and economic benefits of including glass in deposit return schemes, but also its own recognition that it is for each nation of the UK to decide on its approach to a deposit return scheme.^[27] By dictating the scope of Scotland's scheme and undermining the expressed will of the Scottish Parliament to legislate as it determines for Scotland's environment, the UK Government is significantly and negatively impacting the operation of Scotland's scheme and challenging the effective operation of devolution.

Constitutional reform for Westminster

There have been repeated attempts to reform the UK's constitutional arrangements over recent decades.^[28] Devolution itself is a form of constitutional change. However, all changes made have left Westminster sovereignty in place and none has resulted in a codified constitution.

More recently, the UK Labour Party's Report of the Commission on the UK's Future^[29] and the Interim Report by the Independent Commission on the Constitutional Future of Wales^[30] have set out proposals seeking to alter the UK's constitutional arrangements.

These proposals acknowledge that changes to the UK's constitutional arrangements are needed and, to that extent, are welcome. But in the Scottish Government's view, any reform short of moving definitively to a model of popular sovereignty is insufficient. Under Westminster sovereignty, even far-reaching reforms to Scotland's constitutional arrangements could simply be reversed, as other elements of the constitution once considered permanent, like our human rights law and the devolution settlement, can be, and have been.

Only independence can provide for the replacement of Westminster sovereignty with Scottish popular sovereignty.

Scottish popular sovereignty in the 21st century

It is only worth keeping a constitutional tradition if it offers something of value to people living today and protects important rights for future generations.

The Scottish Government believes that popular sovereignty remains the best way of ensuring good government for current and future generations of people who live in Scotland; and that Scotland's constitution should therefore be made by the people in Scotland. The proposals in this publication set out the process by which the Scottish Government believes that people in Scotland can take responsibility for designing their own constitution.

Popular sovereignty should mean that the people, as owners of that sovereignty, can choose to share that sovereignty. In an interconnected world, facing challenges no country can solve alone, it is essential that a modern constitution allows for power to be exercised at multiple levels, including internationally, on behalf of and with the consent of the people.

In the Scottish Government's view, popular sovereignty in the 21st century should mean that as the people change, so can the constitution. A modern tradition of popular sovereignty could recognise that sovereignty is held by the current population of Scotland in trust for future generations. As future generations' priorities change and as new challenges arise, they should have the power to reform their constitutional arrangements through democratic means. The constitution of an independent Scotland should, therefore, be a living document that provides constitutional safeguards for the fundamental features of democracy, human rights and equality, but that also can be amended.

Human rights and equality under the UK's constitution

Human rights and equality legislation offer vital protections for people across Scotland and the wider UK. However, as has been evident over recent years, these protections are vulnerable to change because of Westminster sovereignty. Westminster sovereignty also limits how far we in Scotland can go to advance human rights and embed equality. These issues are therefore useful examples of the limits of any constitutional outcome that does not give Scotland the full powers of independence.

The Human Rights Act 1998 is a key part of the UK's constitution^[31] and a fundamental part of the devolution settlement. It and the Equality Act 2010 are the foundation of equality and human rights protections in the UK, setting out the fundamental rights and equality protections to which the people of the UK are entitled. However, both can be changed by a Westminster government with a simple majority and able to secure the agreement of the Houses of Commons and Lords.

The Human Rights Act incorporates the rights set out in the European Convention on Human Rights into UK law. This includes rights to life, to liberty, to a fair trial, to freedom of thought, belief and religion and to freedom of expression. The Act requires all public authorities to act compatibly with these Convention Rights and allows people to take cases to court to ensure Convention Rights are upheld and enforced.

However, the Westminster government may still ask the Westminster Parliament to pass laws that it recognises may not be compatible with Convention Rights.^[32] For example in a statement accompanying the Illegal Migration Bill currently before the Westminster Parliament, the Home Secretary has stated:

I am unable to make a statement that, in my view, the provisions of the Illegal Migration Bill are compatible with the Convention rights, but the Government nevertheless wishes the House to proceed with the Bill.^[33]

If a court finds that an Act of the Westminster Parliament is incompatible with those rights, it cannot strike it down: it must instead issue a declaration of incompatibility.

In this way, even the Human Rights Act places Westminster sovereignty above the observation of human rights in the UK.

In addition, the EU Charter of Fundamental Rights gave the rights contained in the Human Rights Act a broader standing and provided stronger remedies. The Westminster decision not to retain the Charter following Brexit may result in these rights being diminished.^[34]

The Equality Act 2010 provides the legal framework in Great Britain for discrimination law,^[35] which protects people from unfair treatment based on nine protected characteristics. It places duties on public authorities, including the UK and devolved governments, local governments and the courts.

But like the Human Rights Act, this legislation has no special status in the UK's constitution and could be amended or repealed at any time, effectively by any Westminster government with simple majorities in both the House of Commons and House of Lords, or even just a simple majority in the House of Commons through the use of the Parliament Acts of 1911 and 1949.^[36]

These arrangements mean that even subjects central to people's constitutional protections, like rights and equality are, because of Westminster sovereignty, vulnerable to being undermined by any government willing to do so.

Human rights and equality in Scotland

Since devolution, successive governments in Scotland have worked to extend and protect human rights and equality safeguards. As Alan Miller, Professor of Human Rights Practice at the University of Strathclyde and founding Chair of the Scottish Human Rights Commission, has said:

Scotland's human rights journey has been marked by an increasing ambition and internationalism and this has been clearly reflected across the political spectrum, the public sector and civil society – as evidenced in the unanimous vote in the Parliament for the United Nations Convention on the Rights of the Child (UNCRC) Bill.^[37]

However, Scotland's ability to continue on this journey or embed its approach is limited by Westminster sovereignty, by the devolution settlement and by the approach of the current Westminster government.^[38]

Equality of opportunity is a founding principle of the Scottish Parliament^[39] and the Scottish Government is determined to advance equality for all and to tackle inequality.^[40]

Responsibility for equal opportunities is, however, mainly reserved to the Westminster Parliament and subject to specific and limited exceptions. For example, under one of these exceptions, the Scottish Parliament "has competence over the encouragement (other than by prohibition or regulation) of equal opportunities."^[41]

The Scottish Government and Parliament have used their limited powers to help to deliver better outcomes for those who experience inequality and discrimination. For example, the Scottish Specific Duties^[42] impose duties on listed Scottish public authorities to enable them to perform better than their existing Public Sector Equality Duty under the Equality Act to have due regard to the need to advance equality, eliminate discrimination and foster good relations.^[43]

The Scottish Government has also brought into force additional equality protection. For example, the Fairer Scotland Duty implements for Scotland the socio-economic duty contained in the Equality Act 2010,^[44] which the Westminster government has so far failed to commence, while the Scottish Parliament passed the Gender Representation on Public Boards (Scotland) Act in 2018 providing mechanisms to address the historic and persistent underrepresentation of women in public life.^[45]

In addition, the Scottish Parliament and Government have advanced rights and equality in devolved policy areas, such as housing. The Homelessness etc. (Scotland) Act 2003,^[46] for example, removed the test of whether someone has a priority need for housing and ensured that, since 2012, everyone who is assessed as being unintentionally homeless has a right to settled accommodation. The Homeless Persons (Unsuitable Accommodation) (Scotland) Amendment Order 2020,^[47] which previously prohibited local authorities from placing pregnant women or families with children into bed and breakfasts or hotels for more than seven days, was extended to all homeless households.

In addition, the Scottish Government's focus on Scotland's transition to a wellbeing economy means that "all economic activity should serve a purpose. It should be a means to meeting everyone's basic needs and improving our collective health and wellbeing, so that all of Scotland's people and places can thrive and prosper."^[48] This transition is at the heart of the National Strategy for Economic Transformation, which includes bold actions, within the given constitutional arrangements, to take some of the vital steps necessary towards realising a wellbeing economy.^[49] As part of this work, the Scottish Government has created a Centre of Expertise in Equality and Human Rights to advance understanding of and embed equality and human rights within the economic policy-making process.^[50]

However, the Scottish Government would like to go beyond these measures to secure in full the strongest equality protections for people in Scotland, something that the devolution settlement does not provide for and cannot guarantee.

For example, the Scottish Government sought to protect children's rights through the UNCRC Bill. Under the current devolution settlement, the Bill could only cover devolved matters, such as education and justice, not matters reserved to the Westminster Parliament such as immigration and armed forces laws. Furthermore, the Supreme Court ruled that that incorporation of the UNCRC into devolved law cannot affect the interpretation of Acts of the Westminster Parliament. The Westminster government has since stated that it does not intend to take any steps (including amending the devolution settlement in any way) to increase the effectiveness of UNCRC incorporation in Scotland.^[51]

The Scottish Government is also committed to introducing a Human Rights Bill, as recommended by the National Taskforce for Human Rights Leadership.^[52] A consultation on the Bill has been published setting out how we intend to give effect to a wide range of internationally-recognised human rights, within the limits of devolved competence, and strengthen domestic legal protections by making these rights enforceable in Scots law.^[53] This Bill will incorporate the rights contained in:

• the International Covenant on Economic, Social and Cultural Rights
• the Convention on the Elimination of All Forms of Discrimination against Women
• the Convention against the Elimination of All Forms of Racial Discrimination
• and the Convention on the Rights of Persons with Disabilities

In addition, the Bill will recognise and include a right to a healthy environment and make provision to ensure equal access for everyone, including LGBTI and older people, to the rights contained in the Bill.

This Bill will incorporate and extend a range of international rights in devolved areas. It will be unable to incorporate rights in respect of areas reserved to the Westminster Parliament, and unable to make these rights effective in ways that are incompatible with Westminster sovereignty.

It is vital that systems and processes that will enable people to realise their rights, including the rights contained in this legislation, are in place. This will require a holistic approach and cross-government action, including in relation to implementation and funding, to ensure the realisation of these rights and protections.

With independence, Scotland could make progress in advancing rights and equality in areas that are currently reserved and in ways currently prevented by the devolution settlement and by Westminster sovereignty.

Details of the history of developing, extending and protecting rights and equality in Scotland are set out in Annex A.

The status of human rights in the UK

The status of human rights within the UK's constitutional framework has been undermined by the actions and publicly expressed attitudes of recent Westminster governments. Independence would enable Scotland to secure and protect people's human rights.^[54]

In June 2022, the Westminster government introduced the Bill of Rights Bill, which would repeal the Human Rights Act and replace it with a 'modern Bill of Rights.'^[55]

The Scottish Human Rights Commission described the Westminster government's proposals as "deeply regressive" and "based on false premises and a flawed consultation process."^[56]

After plans to shelve the Bill of Rights Bill by Prime Minister Liz Truss in September 2022,^[57] the Westminster government indicated in December 2022 that it would continue to pursue it.^[58] In January 2023, the UK Parliament's Joint Committee on Human Rights urged the UK Government not to continue with the Bill,^[59] and while those proposals have not made progress at Westminster, they further emphasise the uncertain backdrop against which the Scottish Government is operating.^[60]

Whether the Bill becomes law or not, the fact that human rights protections can be repealed without cross-party support, the same way as any other law, demonstrates the vulnerability of rights under the UK's constitution.

As a matter of fundamental principle, the Scottish Government does not agree that the Human Rights Act 1998 needs to be reformed or replaced.^[61] The Scottish Government views the Human Rights Act 1998 as one of the most important pieces of legislation ever passed by the Westminster Parliament.^[62] It has a more than 20-year track record of delivering justice, including for some of the most vulnerable people in society.^[63] It plays a critically important role in protecting human rights and fundamental freedoms throughout the United Kingdom. The Welsh Government has also spoken out against the Westminster government's proposals in similar terms to the Scottish Government.^[64]

The rights in the Human Rights Act 1998 sit at the heart of the devolution settlements in the UK, yet under Westminster sovereignty the Act could be repealed despite all three devolved legislatures refusing their consent to do so.

There is a similar risk to an array of rights from the Westminster government's Retained EU Law (Revocation and Reform) Bill (REUL Bill).^[65] Laws which are derived from the EU and became part of our domestic law on EU exit, are known as Retained EU Law (REUL). The REUL Bill, which the Westminster Government is currently taking forward, includes powers for the UK Government to repeal or weaken rights and protections, for example, workers' rights, environmental protection and food standards. Although an unworkable "sunset clause" has been removed, the intent of the Bill remains to bring forward a reform and deregulatory agenda which is at odds with the views of Scottish Ministers. This includes rights derived from EU treaties, such as the right to equal pay for equal work.^[66] The Bill empowers the Westminster government (and the Devolved Governments) to repeal or replace REUL, with little or no consultation or parliamentary approval required. Moreover, UK Ministers are granted 'concurrent powers' which allows them to act in policy areas that are the responsibility of Scottish Ministers without their consent. In addition to providing the rights and protections set out above, the laws at risk are significant for businesses and industry, providing the stability and certainty needed to plan and trade effectively in international markets. The Scottish Parliament has, therefore, voted to refuse consent for the Bill^[67] and to refuse consent for amendments to the Bill.^[68]

A new constitutional future with independence

As long as Westminster sovereignty prevails, it remains open for any current or future Westminster Parliament to change Scotland's constitutional arrangements and decisions made by the Scottish Parliament, including any progress on advancing human rights and equality in Scotland. Increased devolution will not change this.

Independence would enable the people in Scotland to choose a new constitutional future, in which values and principles are embedded at the heart of a written constitution, alongside the powers, functions and institutions of the state.

Scotland already has strong and well trusted institutions,^[69] including the Scottish Parliament, Scottish Government and an independent judiciary. This is all underpinned by a distinct and respected legal system that has always been autonomous from those in the rest of these islands since before the Union in the form of Scots Law and largely remains so, with a strong independent system of criminal prosecution headed by the Lord Advocate.

Scotland's parliamentary and governmental structures have proven their competence in managing and delivering their legislative and executive functions across devolved areas since 1999. The Scottish Government is already accountable to the Scottish Parliament, which, in turn, is accountable to the Scottish people.^[70]

The constitution of an independent Scotland could build on these strong foundations, as well as give them the protection that is only possible with a codified constitution.

Having a written constitution that reflects fundamental values demonstrates that Scotland is fully committed to the values shared by other European nations.^[71]