The People of Scotland are facing a remarkable constitutional and constituent moment. They will decide by referendum if they want to navigate the turbulent waters of the international society separately from the rest of the UK. At this moment, it is important to think about how the constitution of an independent Scotland should be. Despite of the present and particular relevance of the issue, the importance of the ideas and arguments that Professor Tierney exposes in his short work entitled Constituting Scotland: a Retreat from Politics? does not vanish if the majority of Scots vote no in the independence referendum. Considering both the specific and the general relevance of the debate, I will try to offer a response to support the convenience of a written and rigid constitution which empowers the judges whilst ring-fencing the domains of Parliament.
One may point out that the model of a written, rigid and judicially controlled constitution seems to be the dominant tendency across Europe, particularly in the European States created or reconstituted during the 20th century. Such constitutions stand above the ordinary legislation of the Parliament and, therefore, the principle lex superior derogat legi inferiori is applied. In that sense, Professor Tierney’s position is a kind of minority report. He asks: “why do so many issues need to be entrenched beyond the decision-making competence of ordinary citizens?” and immediately answers himself: “If matters of wealth distribution, international responsibility and good environmental policy are the preference of a majority of right-thinking people, why not leave it to the Scottish Parliament to legislate in these areas? Is there a failure of trust in the capacity of the people and/or the Parliament of an independent Scotland to make the right decisions? The rush to elevate so many issues beyond the realm of the political would seem to demonstrate a lack of confidence in a new country.”
I will now try to show that Constitutional law can be a proper instrument to ensure the will of the people, the self-government and the popular sovereignty. In order to do that, I will use an ackermanian way of reasoning (see, Bruce Ackerman, We the People). The popular deliberation and participation is something that cannot be expected to be permanently high. When the People (as a constituted People or as an almost constituent People such as in today’s Scotland) is strongly and extendedly mobilised, it is a perfect moment to write or rewrite the highest principles and rights in a written, rigid and judicially controlled Constitution. This is when Constitutional law and the entrenchment of constitutional principles and rights have an essential role. Once the Constitution is written and approved by the People (or their representatives), the ordinary citizens can focus (again) on their daily life without the need to constantly participate in politics to ensure that their principles and rights are respected and honoured by the Parliament and the Executive. This is when the role of a Constitutional or Supreme Court should be understood as a body in charge of preserving the will of the People, rather than as an undemocratic body. So, in this perspective Scots should not be worried that: “by constitutionalising specific values and policies, the constitution will significantly ramp up the powers of judges”. Having in mind that the public virtue of the citizens is limited, Constitutional law can help to ensure that the genuine will of the People expressed in extraordinary moments of public deliberation, participation and mobilisation will be preserved in other times when ordinary politics is controlled by the representatives (and not by the People itself).
Professor Tierney writes “it seems highly questionable from the perspective of democratic legitimacy that the first generation of post-independence Scots should take upon themselves the power to crystallise a broad range of current predilections – some of which may well be fads - as constitutional principles.” In Catalan, my native language, the word principi means both principle and beginning or origin (this is similar to the Latin principium). This is the arendtian principle as beginning (see, Hannah Arendt, On Revolution). In the extraordinary moment of the creation of a new State by means of secession, it makes sense that the constituent beginning want to stablish its constitutional principles. Constitutional democratic liberalism places a transcendental relevance to the constituent and constitutional beginning.
Let’s turn back to Professor Tierney’s criticism of the increase of judicial powers as an unelected body: “The authority to resolve disagreements which are currently matters of political deliberation will be handed to a small unelected group (the judges) which is arguably both unsuited and, in democratic terms, unentitled to determine these issues.” It is true that judges are sometimes not best suited to deliberate on certain policies, especially the highly technical or economically sensitive (this is one of the reasons why the link between social rights and the economic situation of the country makes them more complex and inappropriate of judicial enforcement directly from the constitution in comparison with the civil and political rights). But, do Scots consider the Parliament to be the genuinely suited and morally entitled to determine every issue without limits? Do Scots really think that the Parliament is the perfect and clear image of what they think and want as a whole? I am from Catalonia and back there the Catalan Parliament is the legal and legitimate representative of the Catalans but it is not the image of the People in itself. The Parliament has a representation mission but not a direct and imperative mandate from the People. So, could it be a more precise image of the will of the People the mixture of checks and balances of a written constitution empowering the judges?
The selection of constitutional judges is often related to the principle of democracy (either if they are elected or appointed). For instance, in the USA, numerous state supreme court seats are submitted to competitive elections which make them directly accountable to the public. Turning to the appointed ones, the Supreme Court judges of USA are selected by the Senate on a proposal by the President. Of the total number of the 12 Constitutional Court judges of Spain, 4 are chosen by the lower chamber, 4 by the upper chamber (in both chambers by a highly qualified majority), 2 by the Executive and 2 by the so called “General Council of the Judicial Power”. American Supreme Court judges are on the bench until they retire. Spanish Constitutional Court judges are not in place for life, only for a limited period of 9 years (four of them being replaced every three years). Why are they appointed for a longer period of time than the Parliamentary representatives? Beyond the will of making them more independent of the political parties’ interests, it is expected to promote more long-term coherence and cohesion in the judicial decisions than in those of the Parliament and the Executive. Decisions of the latter bodies are much more dependent on the particular time or even contingent situations. Therefore, although Supreme and Constitutional Courts judges are usually indirectly democratically elected, they are (also) influenced and guided by the democratic principle.
Every political and judicial act or decision can be understood as an act of normative creation, but while the Parliament is more subjected to the Constitution in negative terms, courts are more subjected in positive terms. Grosso modo, this means that whereas in a parliamentary system the Parliament is more or less allowed to do everything that the Constitution does not prohibit, the Courts can only interpret the constitution to tell what the constitutional limits are. Consequently, the power of the Parliament can be more creative than the power of courts, which in practical terms usually means that courts would allow democratic representatives a margin of appreciation about the constitutional provisions. A constitution normally allows a range of policies that the Parliament can choose and courts will only rule which or where the limits of those are.
Constitutional law, although it entrenches certain values, principles and rights, can help to increase the quality and the quantity of debate around them. This is particularly emphasised internally when there is a dialogue between the Government and courts. Additionally, when this debate is started (or even before) academics and scholars are consulted or urged to give their oral or written opinions on the matter. But the dialogue is not limited within the national borders; it usually becomes a transnational judicial dialogue between the highest national courts and also the European and international courts. Professor Tierney, though, seems more interested in the popular deliberative democracy than the elite deliberative democracy. So, let me try to expose why constitutional supremacy and constitutional courts can be useful or at least compatible with the popular deliberative democracy. The constitutional review of legislation helps the Parliament and politicians to build their arguments not only based on economic, pragmatic or populist (opposed to popular) arguments. Constitutional entrenchment helps to stimulate debate around constitution rights using genuine principles and reasons of justice. Moreover, when an Act of the Parliament is declared unconstitutional by courts, a relevant course of actions is expected to follow: the media (newspapers, radio, TV, blogs…) start a debate about the reasons given by Court. Instead of what Professor Tierney is worried about happening (“there is a danger that a highly detailed constitution can serve to supplant, and in so doing foreclose, political debate”), the popular deliberative democracy can thus be expected to flourish.
Professor Tierney is interested in constitutional referendums and their compatibility with the ideal of popular deliberative democracy (see, Stephen Tierney, Constitutional Referendums). As he accepts, referendums can be a dangerous weapon against minorities and fundamental rights in general. This is one of the main objections to them. Another problem is the use of referendums by the Executive to challenge or disempower the Parliament (the plebiscitary objection). In the same vein, they can be used to rewrite the constitution without following the constitutional emending procedure. It seems to me that giving courts strong judicial review powers (both an ex ante –for instance to control the question- and ex post –to limit the effects of referendums or their implementation by the representatives-) can help to avoid or minimise the majoritarian, populist, plebiscitarian and anticonstitutionalist use of referendums. To understand referendums as a final voice of the people is potentially problematic (referendums of independence are more the exception rather than the general rule of the power that referendums should have).
I am not arguing against referendums. I am prima facie inclined to expand the use of constitutional referendums as the way as Professor Tierney writes in his remarkable book. I honestly think that referendums can help to reconcile the represented with the representatives. Nevertheless, it is also convenient to submit referendums to the healthy political and legal game of checks and balances. If referendums are understood as another institution of checks and balances rather than the genuine and sovereign voice of the people, constitutional supremacy and constitutional judicial review are not contrary to referendary democracy but a desirable combination. It is curious to briefly point out that section 33.3(e) of the Scottish Independence Bill opens the door to the approval of the permanent Scottish Constitution “on behalf of the people”, which implies the possibility that no referendum would be needed to agree the Constitution.
Professor Tierney also states: “It seems strange that the newly won autonomy of an independent people should be immediately truncated by the deep entrenchment of a highly partial set of policy preferences.” My condition of Catalan jurist recently arrived in Scotland should endorse a prudent reply to the possibility that a hypothetical Scottish constitution would deeply entrench a highly partial set of policy preferences. But what I may say is that constitutions and constitutional provisions are usually approved by higher majorities than ordinary law. So, this usual requirement of qualified majorities should or could make more difficult to approve a highly partial set of policy preferences. Here I differ again with Professor Tierney. In his writing it seems implied that the better democratic rule is the simple majority rule. But I would say that is not so easy and definitely not so clear. The principle of democracy is not monopolised by the rule of simple majority. Liberal democracies tend to be founded in a more consensual bases approach. It is believed that it is more just (as fair) to agree the basic principles of justice (the constitutional principles and in particular the fundamental rights) in a qualified majority rule. When it comes to agree abstract values, principles and fundamental rights of a constituent People it seems to me that it is preferable to search and step to the unanimous consent. We must recall that the Rawlsian principles of justice are meant to be hypothetically agreed by all the free, equal, rational and reasonable members of a given society (see, John Rawls, A Theory of Justice). Of course the unanimous consent is de facto impossible (we do not have the veil of ignorance that makes it possible in the Rawlsian original position) and it is not appropriate in a real world because if once reached, it would be almost impossible to modify it again. But the desirable process of concretising those values, principles and rights is stepping from a qualified majority to a simple majority bases. To put an image: the democratic process of legislating is like a cascade going from a consensus based abstract principles to a more simple majority based day to day policies.
Professor Tierney points out: “Thirdly, such a constitutional arrangement would bring a radical transformation to the constitutional culture of the country itself. Scots would be leaving what is arguably the most flexible constitutional system in the world and creating potentially one of the least flexible.” Currently in the UK as a whole, as far as I am aware, there is a tendency to abandon the competing democracy of the traditional Westminster model (as described by Arend Lijphart, Patterns of Democracy) towards a more entrenched and consensual one. Some examples would be EU law, the devolution process, the Human Rights Act (HRA 1998) and the Supreme Court. But even more importantly, Scottish Parliament and Scottish public law seem to be familiarized to think and operate under the notion of a superior law (traditionally the Union Act or, from the eves of the 21st century, the Scotland Act).
In a more recent piece of work (entitled Leaving Westminster: Constitutional Supremacy in an Independent Scotland) Professor Tierney offers the option of a review committee of Parliament which could advise whether draft legislation might be counter to constitutional principles. Although it is an advantage to have a parliamentary committee with the specific mission of checking the constitutionality of the legislation, this committee would face a similar problem as the Parliament as a whole which is the need to anticipate and decide about the constitutionality of the legislation in abstract. The advantage of the judicial review of legislation is that courts are often able to analyse the constitutionality of an Act of Parliament in the light of a particular case, situation and context.
Beyond this review committee, and having mentioned the HRA 1998, it is appropriate to launch an intermediate proposal to sit between that of Professor Tierney and my defence of a strong constitutionalism. This intermediate proposal is meant to be a form of weak constitutionalism inspired by the aforementioned HRA 1998 and the Canadian Charter of Rights (CCR). The CCR is part of the Constitution of Canada of 1982 and it develops a stimulating system of judicial review of rights. As a dogmatic part of the Canadian Constitution, the CCR is considered to be lex superior and this consideration allows the judicial review of legislation of the Supreme Court of Canada in matters relating fundamental rights. However, section 33 of the CCR establishes the possibility of the Federal or Provincial Parliaments to pass a “notwithstanding clause” (in French, “clause nonobstant”) that protects the legislation from the judicial review during a limited period of time (5 years). A similar model could be designed in Scotland where the Parliament could pass a notwithstanding clause if a law is declared unconstitutional by the Supreme Court of Scotland. The possibility of passing a notwithstanding clause should be restricted by a political convention (not automatic) and it should be designed in a way that fosters the political and legal debate about constitutional principles and fundamental rights. The normal action for the Parliament when a Statute is struck down by courts would be to approve a new provision compatible with the court’s decision or to amend the Constitution. The fact that the notwithstanding clause is to be renewed every 5 years could ensure that the debate would be reopened in the future when a new democratic majority may be in power.
Finally, although I believe that a centralised model based on a Constitutional Court should be recommended for many reasons –at least in a parliamentary system that operates within the civil-law traditions- (following Víctor Ferreres, Constitutional Courts & Democratic Values), a decentralised model based on the ordinary courts being empowered to exercise the judicial review of legislation is a way to presume less judicial activism. One of the main reasons can be spelled out quite straightforward: if there is a Constitutional Court with the main and genuine function of controlling the activity of the Parliament, it will be expected to exercise its jurisdiction regularly. It is difficult to imagine a Constitutional Court that never strikes down legislation. At some point, the public would ask why a Constitutional Court that does not challenge the Parliament exists. Instead, ordinary courts, which are not as comfortable reviewing the Acts of Parliament, can carry on their traditional functions without the pressure to strike down legislation. The advantage of this eclectic proposal is that it would try to make constitutional supremacy, judicial review of legislation and parliamentary sovereignty compatible while stressing the need to deliberate around constitutional principles and rights.
Pau Bossacoma is a research fellow at Pompeu Fabra University , Barcelona and visiting researcher at the University of Edinburgh.