“In Scotland, the people are sovereign.” So declares s 2 of the Scottish Government’s draft Scottish Independence Bill, the proposed interim constitution in the event of a Yes vote in the referendum. The permanent constitution will be drawn up in due course by a Constitutional Convention, though this would not begin work until after independence.
This grand declaration of sovereignty reflects long tradition, and the bill follows up by asserting that “All State power and authority… derives from, and is subject to, the sovereign will of the people, and those exercising State power and authority are accountable for it to the people.”
But is it any more than fine words? The sovereign will “is expressed in the constitution”, and through the people’s elected representatives – in effect, through the Parliament.
Also as per the draft bill, Scotland is to be a constitutional monarchy, governed by a parliamentary democracy, and with the Crown continuing to enjoy the same “rights, powers and privileges” as attach before independence day – prerogative powers included.
In what way, then, might the people actually exercise their proclaimed sovereignty? Only, it seems to me, if it were possible for the people to exercise authority over the Parliament in some way, such as by Swiss-style referendum, or some power of recall of MSPs, individually or collectively. Neither of these features in the draft bill, which would continue in force for however long it takes to agree and enact a replacement.
Lawyers will however welcome the express commitment to the rule of law, and the duty on every person to act in accordance with that principle – it is not difficult to envisage certain challenges to our political leaders (in either government) that could have been brought had such a provision been in force. The continuing commitment to the European Convention on Human Rights should also be welcomed.
Whether it is truly the province of an interim constitution to seek to impose nuclear disarmament is more open to question, as are the provisions covering children, or the environment. Still, the fact that the draft bill itself is open to public consultation (until 20 October) is encouraging – though will sovereignty of the people extend to reflecting the majority views of respondents? We can address such questions further, if necessary, once we know the outcome of the real sovereignty issue, on 18 September.