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Constitutional law (Scotland)

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The Constitutional Framework of Scotland

A constitution is generaly considered to be a fundamental part of a free democratic society governed "by the people". A constitution is a document which underpins 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 any country which has one, it can be relied upon by the people to ensure that the government in acting does not go beyond its prescribed powers as set out in the constitution. This means it cannot pass legislation which is considered a violation of any rights under the articles. If it does so, acting upon this legislation will be considered illegal and the judiciary can step in to stop this. A good example of a modern constitution is the American constitution.

Unusually, the United Kingdom has no formal constitution. Scotland being a constituent country of the United Kingdom, and therefore primarily governed by the UK constitution, therefore has none. This is not to say that no "constitution" exists. However, There is no constitution in the formal single document sense, such as there is for most democratic societies - there is no easily read and understood list of citizens rights and governmental restrictions.

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 significantly and have brought with it legal documents which underpin the law of the country. There are many documents which academics would consider to be "constitutional" in nature, and this is very much debateable. What academics would agree on, though, is that the following three events are of great constitutional significance:

These three documents, along with many other events and pieces of legislation, can offer an insight into the fundemental rights of the citizen,the relationships of the institutions of the UK, and the powers of government. As well as this, case law decided by the judiciary must be examined to further outline the modern constitution of Scotland and give insight into the governing principles of the country.R

Also to be remembered are the powers of the monarch which are considerable in theory however in practice they are exercised by senior members of the government. Known as convention this practice can lead to rather strange contradictions in constitutional law. One leading example is that the HM the Queen swore an oath at her coronation uphold the law and administer justice yet if she were to exercise those powers many politicians claim this would lead to a constitutional crisis as it would be "undemocratic" even though what she was doing would be perfectly legal.

Dicey’s Constitution

One of the foremost works on the United Kingdom’s “unwritten” constitution is Introduction to the Study of the Law of the Constitution by A. V. Dicey. The book, first published in 1885, remains relevant today (according to most) even though the law and the United Kingdom - which was the head of history’s largest empire in Dicey’s time - have drastically changed.

The book defines and analyses “three leading characteristics in the existing constitution” of the United Kingdom. The three characteristics are: the Sovereignty of Parliament, the Rule of Law, and Conventions of the Constitution.

The Sovereignty of Parliament

Dicey believed that sovereignty of Parliament was “the dominant characteristic of our political institutions.” He defines sovereignty of Parliament as "Parliament… has… the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of [the UK] as having a right to override or set aside the legislation of Parliament”

The effect of this is that Parliament can legislate on any matter; and cannot be bound by its predecessors, nor bind its successors. Dicey does discuss the difficulties in such unlimited power - and notes the differences between “legal sovereignty” and “political sovereignty.”

The question of sovereignty of Parliament is also questionable in the context of the modern world: with Britain now being legally bound by several treaties, and a member of several groups (such as EU and NATO) - the effect of which is to limit, some might even say abolish, the principle of Parliamentary sovereignty. Most legal scholars, though, believe the principle still exists, and Parliament just chooses to act within prescribed constraints.

The Rule of Law

Three meanings are given to “the rule of law” in Dicey’s book:

  • ‘no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land.’ - Absence of arbitrary of power
  • ’not only [is no man] above the law, but (which is a different thing)... every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals.’- Equality before the law
  • ’the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts…’ - The constitution is the result of the ordinary law of the land.

The first two points are fairly self-explanatory, and the subject generally of consensus among academics. The third point though has been the subject of much contention - with some writers agreeing with Dicey; others vehemently opposed to his opinion (for a little more on this, see: philosophy of law). What Dicey means in effect is that, what modern society would call civil rights, derive not from some “natural law” but instead exist only because they have been legislated into existence.

Absence of Arbitrary of Power

To elaborate on the first point, 'Absence of Arbitrary of Power', it was unclear what Dicey was refering to when he spoke about 'regular law', however, as said, this is taken to adopt the meaning of the law derived from statute. It is possible that Parliament would legislate in such a way as to give the Executive a wide range of discretionary power. The rule of law in this point is taken to mean that such discretionary power cannot be used in excess, ensuring that the Government carries out it's business using the same rules and principles that restricts such over-use of the discretionary power. The classic case on the rule of law is Entick v Carrington (1765)19 State T.R. 1030.

Equality before the Law

This is the idea that no individual should be exempt from complying with the law. Although this was, at the time of Dicey's writing, seen to be slightly chaotic as the then society did honor immunities to this rule for elite society such as the monarch, MPs and diplomats. This has since changed by the Crown Proceedings Act 1947. Following this idea, it has been elaborated, to include that there should be open access to courts, tribunals so that citizens can obtain redress, regardless of social status.

The Constitution is the result of ordinary law of the land

This is though to have placed emphasis on the common law, that an individual's rights and freedoms were decisions made by the courts. This can be seen to be true by the fact that statute has codified much of its common law as it is today into statute. The most significant, is the incorporation of the European Convention on Human Rights and Fundamental Freedoms.

Of course, this was as Dicey had envisaged the rule of law in the 1800s. This has since been elaborated into much wider and more substantial categories.

Conventions of the Constitution

The Rule of Law is a theory or doctrine that describes the extent to which certain features are present within a country or legal system. T.R.S. Allan described the it as a "corpus of basic principles and values, which together lend some stability and coherence to the legal order".

The last of Dicey’s three principles is conventions of the constitution (alternatively called constitutional conventions). According to Dicey, there exists ‘Customs, practices, maxims, or precepts which are not enforced or recognised by the Courts, [and] make up a body not of laws, but of constitutional or political ethics…’ And such things he calls conventions of the constitution. The crux of the principle is that there are several rules of good conduct for those in positions of power - such as the Prime Minister, MPs, and the Queen - which are not enshrined in law, but are followed by those to whom they are applicable. The existence of constitutional conventions has been a much debated topic; as has, if they do exist, whether they in fact have binding power in spite of the fact they are not ‘“laws” in the proper sense of the term.’ Nonetheless, there have been plenty of instances when Parliamentarians have acted on the basis of rules that have no grounding in law - so we can generally accept that the conventions exist to some degree.

Legitimacy of Law

The Rule of Law gives legitimacy to the law, and therefore why it overrides personal and other interests. It also reminds those in power that they too are subject to legal restraint. AV Dicey explains this theory in his seminal work 'An introduction to the study of the law of the constitution' (1885) where he argues that the rule of law alongside the concept of Parliamentary Supremacy are the key elements of the UK Constitution. Dicey saw the rule of law as a constraint on the theoretically unlimited power of the state over the individual. Dicey advocated legal certainty and due process by stating "no man is punishable... except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint". Essentially, the laws under which people are condemned should be passed in the correct legal manner and that guilt should only be established through the ordinary trial process. [1]

Formal and Substantive

There are two main schools of thought as regards to the Rule of Law, although this over simplifies the similarities and differences between different theories. In general terms, the formal school describes a state as abiding by the rule of law if: #1 The law is made by a predetermined procedure #2 The law is clear, stable, and certain (it is not changing so frequently that it is impossible to know what is the applicable law) #3 No one is punished by the state other than for a breach of law; and

       #4 The law is applied equally to all regardless of their status Page 76

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