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Constitutional law (Scotland)

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The Constitutional Framework of Scotland

A constitution is the fundamental law of a sovereign state, determining how the government is to function. This is often a document enshrining the rights of citizens, the powers of the government and the general make-up of the political system as well as the relationships of the various governing institutions of that society. In some countries this is justiciable & is enforced by the courts as taking precedence over ordinary statutes. In other countries, it is merely a non-justiciable set of guidelines. The basic rights & liberties of citizens may however be set out in a separate document. Jurisdictions within a larger country which have legislative autonomy will usually have a statute setting out what powers have been devolved to the autonomous institutions, sometimes known as a Statute of Autonomy or Basic Law.

Unusually, the United Kingdom, of which Scotland is part, has no codified written constitution. One of the central constitutional doctrines of the UK is the Supremacy of Parliament, that the Westminster Parliament cannot bind its successors & its legislation is not subject to review by any court. However, the Scotland Act 1998 is a Statute of Autonomy which devolved some legislative power from the Westminster Parliament to a new Scottish Parliament & Government.

Furthermore, the United Kingdom's entry into what is now the European Union, in 1973, necessitated the acceptance by Parliament that European legislation would take precedence over Acts of Parliament. This was confirmed in case law by the Factortame Case. The Human Rights Act 1998 enshrined into the domestic law of the United Kingdom the rights contained in the European Convention on Human Rights, to which the UK had already been a signatory. This legislation preserves the supremacy of Parliament, but requires that legislation be interpreted as far as possible to be compatible with the convention rights. Moreover, a condition placed on the legislative powers of the Scottish Parliament is that its Acts are void if they are not compatible with the Convention rights or with European legislation.

A key issue for constitutional law currently is whether the notion of an absolute sovereign parliament has diminished due to dilution through devolution.

To understand the constitutional make up of the United Kingdom, and therefore of Scotland, what must be looked at is a series of events which have shaped the structure of the UK & Scotland's place within it. The following are of great significance with regards to Scotland's constitutional history:

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