By Mark McNaught
The system of laws in Scotland is currently a mix of UK, European, and Scottish, law, some predating the Act of Union of 1707. Were Scotland to achieve independence, this would involve a wholesale transfer of law-making authority from the UK to Scotland in many new areas, while of course maintaining the letter and spirit of many valid existing UK laws. A written Scottish constitution could help provide for a smooth transfer of legal authority, as well as the construction of a more efficient and comprehensible system of laws.
By Mark McNaught
The system of laws in Scotland is currently a mix of UK, European, and Scottish, law, some predating the Act of Union of 1707. Were Scotland to achieve independence, this would involve a wholesale transfer of law-making authority from the UK to Scotland in many new areas, while of course maintaining the letter and spirit of many valid existing UK laws. A written Scottish constitution could help provide for a smooth transfer of legal authority, as well as the construction of a more efficient and comprehensible system of laws.
A viewing of www.legislation.gov.uk reveals many laws which are outdated, irrelevant, and /or no longer applicable. Examples include the Clergy Ordination Act of 1804, and the Night Poaching Act of 1828, and London Hackney Carriage Act of 1831. These laws are still on the books, sometimes having been amended by later statute, often in older confusing language, perhaps no longer even applied. Why are they still there? Could there not be a constitutional mechanism for ‘housecleaning’ of laws in order to help render the legal system less opaque?
It is to some degree understandable that there is this veneration for the ‘quaint’ old laws, which argues against going back and abrogating what earlier Parliaments did. A law duly passed should enjoy a certain democratic respect as precedent.
However, this should not come at the expense of legal clarity, so that citizens can easily find out for themselves when and when they are not in conformity with the law.
A written Scottish constitution could truly start with a blank slate concerning the codification and modification of laws to be applied after independence. This is the age of computers, not parchment and ink.
First, all laws must be required to be written in clear, comprehensible English. The simplest yet most concise language could be mandated in all laws and amendments, so that any ‘reasonable person’ can grasp them.
Second, there could an online official repository of all laws which apply within Scotland from all sources, comprehensible and accessible to all. Law should no longer be uniquely the purview of lawyers, and one should not need a 19th century Latin dictionary or even a lawyer in order to understand it. All laws and rights could be organized thematically rather than chronologically, so that anyone can easily find out what is legal and what is not, as well as due legal process.
Often, more recent laws make reference to earlier laws which they amend, but reading the new text as presented gives no indication of what the law actually means. When older laws are amended, a third constitutional provision could stipulate that the text of the law must include the rewording of the original law, to reflect modern spelling and grammatical norms, and provide scope for more easily removing laws which are clearly out of date. When accessing the corpus of laws, the citizen should not be required to cross reference earlier laws, and piece it together like a puzzle to attempt to divine the meaning.
Fourth, amendments to a written Scottish Constitution can also include changes to the text, rather than addendums which nullifies an earlier clause. For example, the US Constitution still includes the 3/5 compromise, which counts slaves as 3/5 of a person when counting the population. It has been nullified by the XIII amendment, but it is still there in the text. Again, this may have been understandable in the XVIII century, but it no longer needs to be there as it has no value as jurisprudence.
None of these proposals are meant to devalue the sanctity and respect for the laws and rights under which all Scots must live, equally applied to all. Also, they are not meant to make it easier to change the content of laws and the import of rights. What they are meant to do is use technology and ingenuity to simplify the legal system, so that all may have a deep access and understanding, thus promoting a better informed and active citizenry. Scots deserve nothing less.
Mark McNaught is a member of the Constitutional Commission, and Associate Professor of US civilisation at the University of Rennes 2 France, and teaches US constitutional law at Sciences-Po Paris.