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Alex Salmond should start work on a constitution now 'in fairness to voters'



leading human rights lawyer objects to a delay to work on a possible written constitution for Scotland, while other experts dispute whether one is necessary or workable
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Would a written constitution for an independent Scotland hamper or enhance justice and civil rights? Lawyers are divided Photograph: Ian Waldie/Getty Images


Should detailed work and debate on a putative written constitution for Scotland start now, and not wait until a yes vote for independence, then the next Holyrood elections in 2016? A senior human rights lawyer, John Scott, believes so.

Scott, vice convenor of the Scottish wing of the influential legal group Justice, and chair of the Howard League for Penal Reform Scotland, believes the shape and focus of that constitution ought to be central to the public debate on independence before the autumn 2014 referendum.

He expects Justice would be "very supportive" of the increasingly firm proposal from Alex Salmond, set out in a speech on Wednesday to the Foreign Press Association in London, that a future independent Scotland should have a written constitution, entrenching basic political, social and economic rights.

Scott, a criminal defence lawyer who is equally highly critical of Salmond's government's policies on criminal justice and the courts, said:


We think it's a great idea: the absence of a written constitution creates the potential for all sorts of difficulties. [It] allows for greater certainty, it allows everyone to be able to work out what the playing field is.

Salmond is wrong, however, to believe a delay until beyond the 2016 election is justified, Scott says:


The debate and the discussion should start now, in fairness to all who are going to be voting or who might vote in the referendum. They should be able to see what the constitution of Scotland would be. Actually, I think having a constitutional convention or something like that ahead of the referendum would be a way, potentially, of making people more interested in it.

Scott said he was particularly intrigued by Salmond's reference to embedding social and economic rights in that constitution: the first minister mentioned a legal right to a home (this effectively already exists, his critics say) and to free education. Doing that would put Scotland in a leading position in Europe:


The UK is out of step with the whole of Europe in not having a written constitution but if we were to have one which includes economic and social rights we would overtake other European countries.

But Scott, whose close colleague Tony Kelly, the convenor of Justice Scotland, was singled out for attack by Salmond in 2011, is deeply critical of his government's track record on defendants rights – an area so far excluded from Salmond's constitution prospectus.

"This government's record on human rights has been pretty poor," he said. He and many other lawyers are extremely critical of legal aid cuts (Scottish defence lawyers are now holding 24-hour strikes in custody courts on this issue), the closure of district, sheriff and high courts, proposals to scrap corroboration in criminal trials and recent laws abolishing double jeopardy.


What we've seen happening with the present government in relation to the rights of the accused has been done in the name of 'rebalancing the system' [in favour of victims] but we've already seen some changes which significantly diminish the rights of an accused person.

What we're in the midst of discussing now [on corroboration] is extremely poor. So what we would want to see in a written constitution is a proper incorporation of the legal rights of an accused person, which are traditionally Scottish.

Some lawyers disagree that a written constitution is necessary or sensible. The Scotsman quotes Dr Paul Arnell, an expert in constitutional law at Robert Gordon university in Aberdeen, warning that it can actually "freeze" the law up and make it unable to react quicky to fast-changing circumstances.

He cites the controversy about gun control in the US: the right to bear arms is enshrined in the US constitution. Regardless of recent mass murders using firearms, that has been a huge block on action.

In the UK, Westminster was able to ban handguns within months of the Dunblane massacre. It was able to stage a referendum on devolution to Scotland and then pass the Scotland act within two years of Tony Blair's election in 2007.


It's about the flexibility on any issue – withdrawing from Europe, entering Europe, the euro, and these very big decisions being made quite readily.

Some people might criticise this because they can be made too easily, but if one trusts their politicians and has a reasonable democratic system, then you're trusting your parliament, as elected, to carry out the will of people at that particular time.

It's never frozen – the argument in America is that it is frozen at 250 years ago.

Alan Trench, a specialist on devolution at the Constitution Unit at University College London, said including social and economic rights can be "problematic". He has written a detailed critique of this on his Devolution Matter blog. He told the Scotsman:


It may mean you can't charge for school trips or music lessons or equipment. Does it apply to university education and education beyond that, such as professional qualifications?

In his blog, Trench predicts this will simply make a great deal of work for lawyers and judges, who will increasingly be forced to arbitrate on tricky detailed arguments about the limits to these new rights: free cosmetic surgery, anyone?


The effect of including social rights in a constitution is to give a greatly expanded role to the judges in deciding about such rights. And that means that the judiciary start to have a professional interest in the scope of such a constitution, as well as that they share with all citizens.

And is this debate taking place solely in Scotland; something unique to Scotland's constitutional debate?

Professor Alan Miller, chair of the Scottish Human Rights Commission, former head of the now defunct Scottish Council for Civil Liberties, who as a lawyer helped draft an outline constitution for the Scottish Constitutional Convention in 1989, said it is already very live in Northern Ireland.

The Belfast Agreement which entrenched the Northern Ireland peace process also involved drafting a new bill of rights for Northern Ireland; that draft bill is now being debated and scrutinised. "There's a very lively debate" about that, Miller said.

Equally, the UK government has formally proposed a written UK-wide Bill of Rights – not quite a written constitution on the same lines as that of the United States, and one many critics (including Salmond and Scott) protest is a smoke screen designed to limit the European court's jurisdiction in the UK.

Miller sat on the advisory panel for the UK bill of rights commission, as Scotland's representative. Intriguingly, it recommended that introducing any such legislation should be delayed until after Scotland's referendum in 2014 – a position supported unanimously by the Tory and Lib Dem appointees too. (The UK government has yet to respond to the commission).

Miller won't be drawn on Salmond's outline rendering of what that new constitution might bring. His commission is planning a major paper later this year on how human rights should be enhanced and protected under various constitutional scenarios – independence, and greater devolution included.

He does say this, however:


I would say that the first minister's speech is a welcome contribution to a debate in which all the other political parties and bodies in Scotland, including the SHRC, will be making part of the debate before the referendum. The commission will be presenting our view in a few months time about how under the different constitutional options, human rights should be an integral part of whatever constitutional path Scotland chooses to take.

We recognise that there's a debate which is inevitably going to take place, and should take place. It would be unreal if it didn't take place [in Scotland] when it's happening in other parts of the UK.

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