SCOTLAND'S CONSTITUTION, GOVERNANCE AND DEMOCRACY
It is vital to create a lasting legacy from the overwhelming public engagement in the referendum debate and vote, and secure Scotland's democracy, good governance, human rights and citizen engagement.
The Scottish Government agrees strongly with the view expressed by the UK and Scottish leaders of the UK parties during the referendum campaign:
"Power lies with the Scottish people and we believe it is for the Scottish people to decide how we are governed."
We therefore propose that any future Scotland Act should give statutory force to the right of the Scottish people, in the words of the Claim of Right of 1989, "to determine the form of Government best suited to their needs" as they did in the referendum.
The Scottish Parliament
The Scottish Parliament, as an institution, has come of age and is trusted and respected by the people of Scotland as their democratic voice. The existence of the Parliament as an institution should be legally entrenched and made permanent, so it could not be abolished without the agreement of the Parliament itself and preferably the people of Scotland in a referendum.
The Parliament should have control of its own affairs, including its electoral system and procedural rules - matters which are currently reserved to Westminster. The Scotland Act 2012 transferred some limited administrative responsibilities and regulation- making powers for Scottish Parliament elections. But this falls far short of full legislative responsibility for its own elections. The Westminster Parliament legislates about its franchise and procedures. The Scottish Parliament should do the same. The Scottish Parliament legislated for the franchise and rules for the independence referendum, including highly successful measures to enable 16 and 17 year olds to vote. The rules for the referendum were made in Scotland and reflected Scottish choices. The Scottish Parliament should be able to do the same for Scottish Parliament and local elections.
The UK Parliament at Westminster would still retain responsibility for other aspects of the UK's constitution that are currently reserved, including the monarchy, the UK Parliament itself and its procedures, membership and elections.
Empowering communities and local government
It is also important that enhanced devolution enables decisions to be taken closer to the people affected. A significant transfer of additional responsibilities to the Scottish Parliament will provide the opportunity to devolve these powers further to councils and communities, in a way that transfers decision-making and real power as well as administrative responsibility.
Local government is an essential element of the overall good governance of Scotland. It delivers a range of services that form the bedrock of our society, whilst responding to local circumstances and aspirations. The Scottish Government continues to work in partnership with local government - a way of working highlighted for its success by the Council of Europe earlier this year - as we seek to implement and build on the findings of the Christie Commission and a shared vision of strengthened community planning, involvement and empowerment.
The publication of Empowering Scotland's Island Communities in June 2014 saw the first steps towards implementing the First Minister's Lerwick Declaration that confirmed the Scottish Government's commitment to subsidiarity. The Community Empowerment Bill, introduced to Parliament in June, will help shift the balance of power more towards communities. The extension of the powers of the Scottish Parliament would create a new opportunity to consider the right level for decisions to be made across Scottish society.
Securing rights and equalities
The Scottish Government's proposals for independence would have provided a platform to establish a written constitution. Scotland has an opportunity to develop a distinct constitutional framework covering the structures of government, including local government, and the human rights of the people of Scotland. The constitutional framework could also strengthen Scotland's record in protecting and promoting equality and human rights.
That framework should be made and implemented in Scotland by the Scottish people under the authority of the Scottish Parliament. There should not be moves to put any aspect of the framework beyond the powers of the Scottish Parliament by reserving them to Westminster, which would be counter to the right of the people of Scotland to determine these matters.
The Supreme Court
Scotland has a long-established autonomous legal system. The Scottish Government believes that appeals from courts in Scotland should be heard by the highest courts in Scotland, and should not be appealed to the UK Supreme Court. The jurisdiction of the UK Supreme Court should be excluded in respect of any case originating in Scotland. The Inner House of the Court of Session and the High Court of Justiciary, sitting as the Court of Criminal Appeal, would collectively become Scotland's Supreme Court. The European Court of Justice and the European Court of Human Rights would continue to have the same jurisdiction in Scotland as at present.
Specific proposals and opportunities
- A future Scotland Act should give statutory force to the right of the Scottish people, in the words of the Claim of Right "to determine the form of government best suited to their needs", as demonstrated in the referendum
- The Scottish Parliament should be legally entrenched to guarantee its permanence
- Statutory underpinning should be given to the convention that the UK Parliament will not legislate on devolved matters, or alter the powers or duties of the Scottish Parliament or Government, without the express consent of the Scottish Parliament. This should extend to formal scrutiny by the Scottish Parliament of any UK secondary legislation containing provision falling within devolved competence
- The Scottish Parliament should take on legislative competence for Scottish Parliament elections, including the franchise, electoral system and conduct of elections; for local government elections; and for MSP vacancies, disqualification and recall. Parliament should also be responsible for its structure and operations
- The Scottish Parliament should have legislative competence over the Scottish Administration extending to procedures for all Ministerial appointments, including that of the Law Officers, and for judicial appointments and remuneration
- Scotland should have the ability to develop a distinct constitutional framework to define and protect civil, political, economic, social, cultural and environmental rights. It would ensure that Scotland's governance will continue to be underpinned by the fundamental values and principles set out in the ECHR, irrespective of developments at the UK level. The restrictions in the Scotland Act 1998 on the Scottish Parliament's ability to legislate on human rights should be removed. This constitutional framework should also cover the structures of central government and the implementation of subsidiarity, including guarantees for the autonomy of local government and recognition of the specific needs of island communities
The proposals set out here for Scotland's constitutional development do not depend on wider consideration of the UK's constitution. The governance arrangements of England, Wales and Northern Ireland are primarily a matter for the people of those countries.