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Stephen Thomson: Constitutional Codification in an Independent Scotland - Is It Really Necessary?

The stated ambition of the Scottish Government is for an independent Scotland to be regulated by a central constitutional text; a “written constitution”.  That was declared in its white paper of February 2013 ('Scotland's Future:  from the Referendum to Independence and a Written Constitution') and further elaborated in its white paper of November 2013 ('Scotland's Future:  Your Guide to an Independent Scotland').  The prevalent view seems to be that a constitutional code is necessary in the event of independence.  That is, however, an assumption, and one that I seek to challenge. 

To clarify, my contention is not whether a constitutional code is desirable.  The answer to that question may be motivated by what values or principles one would like to see “entrenched” in a constitutional code, as much as whether one thinks it is desirable as a matter of legal and constitutional propriety.  Instead, the question posed is whether a constitutional code is necessary, whether there must be such a framework as a matter of legal and constitutional necessity.   

For some, its requirement seems obvious, and this is a question barely worth asking.  However, reflecting on the ostensible blank canvas that a yet-to-be-drafted constitutional code seems to offer, and the opportunity implied in its many possible variations, may be just a little hasty.  The question that should be satisfactorily answered – and at least seriously contemplated – is whether there must be such a text, before asking what it should contain. 

An objection which I have already heard being made is that a codified framework is the only way to know which institutions of state command which powers and functions, what are the processes of legislation, governance, administration, adjudication and so on.  

That is clearly untrue, as Scotland's (and the wider United Kingdom's) experience since 1707 confirms.  We already see, on a daily basis, how it is possible to live under an uncodified framework.  One might well ask (and some from other jurisdictions do) how we know what are the respective powers, functions and processes of state institutions, if those are not specified in an overarching constitutional text.  The answer is of course that we largely glean these from statutes, the common law and conventions.  These have incrementally fashioned the constitutional landscape of the UK, sometimes in relatively dramatic fashion (e.g. the Scotland Act 1998) and sometimes less so (e.g. the Tribunals, Courts and Enforcement Act 2007).  Scotland is well used to sourcing its constitutional norms from what might for these purposes be called “ordinary law”. 

The objection has continued that it is not possible for state institutions to acquire authority in the manner in which, for example, the UK Parliament acquired its authority.  However, the question is not just one of institutions acquiring authority, but of existing institutions with continuing authority.  In the case of the Scottish Parliament, we are dealing with a legislature with existing legal, constitutional and political authority, the powers of which would be extended.  Likewise the Scottish Government.  And a major factor on which my challenge depends is the role of the courts in the constitution; courts which have to a significant extent defined themselves (such as the way in which the Court of Session has developed its supervisory jurisdiction in the field of judicial review) and which have profoundly shaped the wider legal and constitutional order.  I will return to that particular point shortly. 

There may not be strong parallels with the process of union that culminated in the Treaty of 1707, but it may be noted that the last time Scotland's sovereign space changed so manifestly, there was barely any overarching, textual framework in place.  The Treaty was minimal in substance, and much of the legal and constitutional content and context unfolded beyond the parameters of the Treaty text; for example, the different ways in which civil and criminal appeals developed to courts furth of Scotland, and the manner in which the doctrine of parliamentary supremacy waxed and waned.  These developments transcended the framework of an overarching constitutional text.  There is no reason in principle why the constitutional evolution of an independent Scotland cannot also transcend the framework of such a text. 

In fact, that evolution must transcend the framework of a constitutional text.  This drives to the heart of the contention that we should not be over-formalistic in our constitutional analysis.  If we regard a “constitution” as a set of norms committed to a central text which is invested with special legal authority, then we are engaging in a narrow reading of the term.  Such an interpretation already predisposes us to discount the importance of the constitutional framework “beyond the text”.  Indeed, not even in jurisdictions with a constitutional code does the text exhaust, or even come close to exhausting, the content of the constitution. 

However, if we adopt a broader, more contextual understanding of what is meant by a “constitution” – that which constitutes the institutional and normative apparatus of state – we engage in a more holistic analysis.  The text immediately becomes a less decisive feature of our analysis, as we note that the text is neither self-interpreting nor self-executing, and open our minds to the ways in which the text gains its traction and authority in the legal and constitutional system.  We must pay particular attention to the ways in which the courts invest the text with contextual meaning.  And we must also account for the extent to which state institutions are interdependent; the extent to which they rely on each other for their legal, constitutional and political authority, as well as for their practical ability to discharge their functions.   

The logical extension of this analysis is a recognition that the codified or “written” part of any constitution is indeed just that – a part of the constitution.  A preoccupation with the text turns our attention away from those aspects of the constitution which may be un- or under-articulated, such as its deeper norms, processes and cultural features.  No constitution is or can be exhaustively “written” – but, at the same time, it is clear from the UK experience that a constitution can be “largely unwritten”, or perhaps more accurately, “largely uncodified”.  Curious, then, that we should treat some form of constitutional codification as inevitable in an independent Scotland's post-referendum journey.  

The point I wish to make is that we gain many constitutional “answers” from state institutions on an ongoing basis.  My own view is that the courts play a much greater role in shaping the constitution than is commonly acknowledged – but that is an argument for another day.  We would, even with some form of constitutional codification in Scotland, continue to glean many of our answers from state institutions, and from courts in particular.  That would be true of any system in which there was a central constitutional text, but it is especially true of the legal and constitutional system to which Scotland is accustomed. 

Indeed, the extent to which wider legal and political culture is important is a key feature of this line of reasoning.  I would argue that those cultural aspects are more decisive in constitutional matters than any constitutional text.  An easy demonstration of that is to point to those constitutional provisions which are ignored or which at least have a limited capacity to achieve their apparent purpose.  Take, for example, the protection of human or fundamental rights in certain member states of the Council of Europe.  Chapter Two of the Constitution of the Russian Federation, Part Two of the Constitution of the Republic of Turkey and Title Two of the Constitution of Ukraine each contain provisions which purport to protect human or fundamental rights.  The extent to which those provisions fail to ensure rights protection is unhappily demonstrated in the respective human rights conditions in Russia, Turkey and Ukraine.   

By contrast, the UK, and Scotland within it, have a comparatively enviable human rights record.  Whilst the Human Rights Act 1998 has done much to promote that state of affairs, the reality is that the courts had long played a fundamental role in rights protection in the UK, and that was achieved in the absence of a central constitutional text.  It is axiomatic that one does not need such a text to achieve strong rights protection.  What is decisive here is not the existence of codified constitutional guarantees, but the wider legal and political culture of the polity in question.  The existence of such a text may, of course, shape and influence legal and political culture (not to mention being a product of legal and political culture), but what cannot be said is that there is an unconditional cause and effect relationship between codified constitutional guarantees and the protection of rights. 

Broader legal and political considerations, including cultural and normative factors, play a crucial role in determining the form and substance of the constitution.  Among those are the independence and standing of the judiciary, the substantive (and not just the formal) condition of the separation of powers, the democratic accountability of government and the accountability of public and administrative decision-making through judicial review (much of which, it should be noted, is still governed by the common law).  Scottish legal and political culture is not oriented around a constitutional code, and it can clearly cope sufficiently well in its absence.  To be clear, the point is again not one about the desirability of a central constitutional text, post-independence – but whether one is necessary

A difference worth emphasising between a central constitutional text and wider legal and political culture, is that the latter has the potential to be much more enduring than the former.  Indeed, the latter can and does transcend the former.  Even when it seems that the constitutional order has been fundamentally changed, or is about to be so changed, there can be much – really, a great deal – that is substantially unchanged. 

A brief example of this phenomenon may be illustrated from the case of Hong Kong.  The former British colony passed from UK to Chinese sovereignty on 1st July 1997; an apparently monumental shift in its constitutional foundations.  I do not wish to suggest that this change was insignificant.  The reality on the ground, however, is that much of the substance of the constitution and the legal system was characterised by a great deal of continuity.  With the exception of the establishment of the Court of Final Appeal with a power of final adjudication, subject to interpretations from the Standing Committee of the National People's Congress in Beijing – an important but rarely utilised mechanism – much of the legal system substantially looks and operates in a broadly similar way to its pre-handover incarnation.  The common law still profoundly shapes the legal system in an ongoing manner; judicial review still looks remarkably English; the courts are still a major feature of the “constitution” of the Hong Kong Special Administrative Region.   

Indeed, even although the territory gained a putative (“written”) constitution in the form of the Basic Law of the Hong Kong SAR, the courts are – as they were pre-handover – a vital and vibrant source of constitutional law.  There have, of course, been changes and evolutions.  The point, however, is that those should not be overstated:  in fact, it can be feasibly argued that, legally and constitutionally, Hong Kong did not require a Basic Law.  It may have been politically desirable to have one, with particular reference to concerns about the fledgling “one country, two systems” principle and what that might mean for Mainland China's role in Hong Kong – but I submit that an argument can be made that, legally and constitutionally, it did not need a Basic Law (and, as a side note, the Basic Law does not in fact provide comprehensive legal and constitutional protection against Mainland China; in that regard, it depends on political, more than legal, factors). 

The experience of Hong Kong has only reinforced the questions I had about the idea that an independent Scotland would need a constitutional text.  I do not expect that there is much support for proceeding without one, and I will make the point again that I am not arguing that its absence would be desirable.  What can reasonably be foreseen in an independent Scotland is, however, much in the way of “business as usual” in the legal system – a large measure of continuity.  That is at least true if we are prepared to look beyond the obvious constitutional changes that independence would bring.  Large areas of statutory law (an increasing volume of which emanates from the Scottish Parliament) would substantially operate in the same way as before.  The far-reaching tentacles of the common law (most of which for Scotland emanates from Scottish courts) would remain in place.  The courts may be rebranded, but the Court of Session or its designated successor would most likely continue to exercise its long-standing and powerful supervisory jurisdiction with far-reaching consequences for the conduct of public administration.  Each of these would not only be continuing sources of law, but continuing sources of constitutional law and constitutional authority, shaping, delineating and regulating the powers and functions of interdependent state institutions.  That is potentially a considerable body of constitutional law which need not radically change upon independence, but in which there is significant scope for continuity.   

Where there is such scope for legal and constitutional continuity, is there a necessity for constitutional arrangements to be committed to an overarching text?  And to those who might ask how we would know what are the respective powers, functions and sources of constitutional authority of the various state institutions, post-independence – the question can be turned on its head.  I would ask them how we know those things of the UK's present institutions.  Where in the present system do we look for answers to those questions?  What are the essential sources of constitutional authority in the current system?  Providing we do not approach those questions formalistically, the answers to those questions would, I submit, not be substantially different from those under a system with a central constitutional text.  And that fact alone may diminish the scope for arguing that a constitutional text, post-independence, is a legal and constitutional necessity. 

I do not foresee much advocacy for an independent Scotland proceeding without a central constitutional text.  Nor do I advocate that it is desirable to do so.  However, I am not convinced that the argument has been made that – Scots legal, constitutional and political culture considered – it is necessary to enact such a text.  Until that argument is made and stands up to scrutiny, the necessity of codification should not be taken for granted. 

Stephen Thomson is an Assistant Professor in the Faculty of Law at the Chinese University of Hong Kong.

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