The Scottish Constitution

Author: Sara Salyers

The Scottish Constitution and the Constitutional Compact

  1. The source of power in Scotland is vested in the people, or community of the nation, who grant it conditionally to their rulers or government. This is known as popular sovereignty.1
  2. The Community of the Nation of Scotland remains the pre-eminent and final authority from which political and executive power is derived. No political or regulatory power exists apart from or above this authority.
  3. Political and regulatory power is subject to a compact between people and government whereby power is devolved by the will of the people, conditional upon:
    • its purpose to protect and promote the common good, that is, the equality, welfare, dignity and liberty of the people
    • the pre-eminent rights and liberties of the people and especially by the established laws or provisions which guarantee those rights and liberties
    • forfeiture through abuse or misuse of power to the detriment of the common good as in ignoring, altering or repealing laws and provisions which uphold the rights and liberties of the people
  4. This compact represents the fundamental principle of the Scottish constitution which:
    • Preserves and protects the sovereignty of the people over their government wherefore it is unlawful in Scotland for any government to claim or to seek sovereignty over the Scottish people
    • Prescribes the power and scope of government in Scotland wherefore it is unlawful to attempt to alter the constitutional compact which limits and directs political and regulatory power
    • Preserves and protects the legitimate ends and purposes of government in Scotland, (to promote the common good and the interests of the nation), wherefore it is unlawful to act against these interests
    • Preserves and protects the laws and conventions protecting the rights, the good and the freedoms of the people, whereby it is unlawful in Scotland to subvert these laws and conventions.
  5. Protected rights and prohibitions, (as established under the Claim of Right), include but are not limited to2:
    • The equal right to justice for all people, by which it is unlawful to limit the right and the means to petition for justice
    • The right to equality under the law by which it is unlawful to subvert the law or the justice system so as to victimise or punish political enemies
    • The right of the lenders of power (the people) to call the borrowers of power (government, political and regulatory authorities), to account, by which it is unlawful to limit the right to peaceful protest
    • The right to privacy by which it is unlawful to demand, under penalty, to know the private thoughts of individuals or to attempt to gain this knowledge without consent
    • The right to fair and transparent management of the national assets by which it is unlawful to offer grants and financial advantages without parliamentary oversight
    • The right to fair and transparent systems of taxation by which it is unlawful to grant exceptional immunity from public debt (such as taxes) without public oversight3
  6. The right of the people, the Community of the Nation of Scotland, remains inalienable:
    • to uphold and defend the provisions of the constitutional compact
    • to consider, condemn and reject the misuse of power, (that is, the use of power to the injury of the common good)
    • to declare the rights and powers to govern Scotland forfeit and to withdraw the loan of power in consequence
  7. And while these rights remain, so also there must be the instruments of those rights such as those which formerly existed in Scotland4:
    • in free, transparent and unfettered public access to information on all matters concerning the common good and the interests of the nation
    • in public oversight and the exercise of veto over parliament and government5
    • in the final authority of a non-parliamentary, representative body, the Convention of the Estates or its successor to apply sanction, redress or remedy by removal6
    • and in the independence of the judiciary, especially the Court of Session to whom the resolution of any conflict between the claims of public right and the powers of government should be referred

It is, therefore intrinsic to the Scottish Constitution. that there are guaranteed:

  • Public access to information, which means the requirement for a truthful, impartial and independent public media and the protection in law of freedom of speech
  • The creation and maintenance of extra-parliamentary, representative bodies, authorised to apply the constitutionally guaranteed remedies against any abusive, governing power7 so that these rights are assured. Such bodies are a fundamental requirement of constitutionally legitimate government in Scotland;
  • The protected independence of the judiciary and especially of the Court of Session

 


1 Declaration of the Clergy 1310, Declaration of Arbroath 1320, 1450 Act prohibiting rebellion against the monarch without parliamentary consent (upholding the right of rebellion in Scotland), Claim of Right Act 1689

2 See, for example Scotland’s Magna Carta

3 Claim of Right Act 1689

4 And which have included authorised rebellion. See the 1450 Act prohibiting rebellion against the monarch without parliamentary consent – upholding the right of rebellion in Scotland

5 See the practice of Salvo from 1592, Act of Salvo in 1663

6 Convention of the Estates Claim of Right Act 1689

 

Sara Salyers

Sara Salyers

Former television journalist and award-winning researcher working for clients including C4, BBC and party political broadcasts for the SNP. College teacher in Fife and the USA. Published an academic paper on the effects of the colonial approach to teaching English. Responsible for research, communication and publicity for Salvo