Legal advice after baby loss
This article was first published in The Times on the 19th June 2014.
The words were coy, but there was no mistaking their meaning. The SNP’s proposals, published in February, for a new, post-independence, constitution involved “embedding” the rights of its citizens by ensuring that they could not be taken away by the Scottish Parliament. So, having taken advantage of our constitution to secure independence by a majority vote of the Westminster Parliament, the SNP proposed to remove that right from its own people.
As yet, the SNP has not identified the means by which the constitution would be embedded. Its draft interim constitution, published this week, was silent on the issue, beyond a rather opaque statement in the explanatory notes to the effect that an independent Scotland would decide what is best for itself. But approving references in its February paper to the United States constitution suggest that a significant majority, as much as three quarters, either of the Scottish Parliament or of the population would have to agree before the constitution could be amended in the future. Let’s be clear, while currently a bare majority of the votes of the Scottish people will be enough to secure independence, in future it could be that it will take half as much again to reverse the position.
The significance of this should not be under-estimated. Currently, according to the latest polls, just 48% of Scots will vote for independence. If the “yes” campaign does go on to win, it is likely to be by a whisker. In fact it will take the votes of just 2.66 million people to decide the outcome of the referendum – a bare majority of the population in Scotland, and incidentally just 4.15% of the population of the UK as a whole.
Our unwritten constitution has allowed this to happen. The Scots future constitution may well prevent it. Which is better? To my mind, it is better to have the freedom to make bad laws which can subsequently be changed easily than to restrict our ability to make laws in the first place.
An example from the USA illustrates the point. In 1791, the US Congress passed the Second Amendment enshrining in the constitution the right to bear arms. It was driven by the necessity of having a well-regulated militia for the security of the State. The influence of our own 1688 Bill of Rights in granting the right to bear arms for self defence was strong. But the case for individuals to bear arms has wholly changed in the two centuries that have passed since the Second Amendment became law. In the UK, we no longer regard it as a constitutional right to possess firearms, and their use is strictly regulated. In the USA, as recently as 2008 the Supreme Court held that the Second Amendment gave individuals, whether or not members of militia, the right to possess and carry firearms. It struck down the Firearms Control Regulation Act 1975 which restricted individuals from using handguns.
The consequences in the USA are played out every day. In the UK there were 38 deaths from gun crime in 2011, the latest date for which figures are available. By contrast, in California in 2012 there were 1879 such deaths. The Californian population is 38.3 million, just over half that of the UK.
There have been no recent attempts to abolish the US Second Amendment. It is generally accepted that such an attempt would fail. The constitution can only be amended if there is a majority of two thirds in both houses of Congress, and even then three quarters of state legislatures must also approve the amendment. The views of a minority, if there were one after full debate, would be sufficient to prevent change. Those views generally refer back to the wisdom of the framers of the US constitution.
In the UK, we are not so bound up with our historical past. In my lifetime we have joined the Common Market, devolved powers to Scotland, Wales and Northern Ireland, decided against a European common currency and made the European Convention on Human Rights part of our domestic law. In the next 3 years, the Scottish referendum means that devolution was not the final answer, while the status quo on the EU and the European Convention will most likely be visited by us once more. We have given ourselves the freedom to pass bad laws with a simple majority, but thankfully we have retained the ability to undo them by the same mechanism as well.
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