Who will say which laws are constitutional?

By DR MATT QVORTRUP
Published on 16/03/2013 02:28

If SCOTLAND becomes an independent state, the Scotland Act 1998, which created the Scottish Parliament, becomes void. A new constitution will need to be drawn up; a process that on average takes about two years.

As a new country in international law, Scotland will have to apply for membership of the European Union and the Council of Europe. The latter, not to be confused with the EU, is the organisation to which the European Court of Human Rights (ECtHR) belongs.

A constitution fundamentally draws up the boundaries for what the government can do and the rights that individuals have. What is more interesting is who will be allowed to challenge the constitutionality of future laws.

Without an effective constitutional court, the constitution is not of much use. The big question is whether the new constitution will allow individuals to challenge laws or if only the judges are allowed to refer cases to the constitutional court. The latter would limit the effectiveness of the constitution, the former strengthen the citizens and the rule of law.

• Dr Matt Qvortrup is a lawyer and political scientist