Beg to report legal, constitutional flaws

When clients enter into an agreement it is the lawyers function to check the title deeds or the divorce settlement. Picture: TSPL

When clients enter into an agreement, whether to buy a home or to divorce or whatever, it is the lawyer’s function to check the title deeds or the divorce settlement to ensure that these items deliver what the clients signed up to. A letter of advice may be issued. I offer the following example, in somewhat specialised circumstances:

Dear Country

Now that you have agreed, in terms of a referendum, that Scotland should be an independent country, I have received the Draft Scottish Independence Bill and associated constitution for consideration. I have little experience in these matters. The last equally significant constitutional document was the Act of Union in 1707 and, prior to that, the Declaration of Arbroath in 1320. I was not involved in either of these documents. But I have had the benefit of discussing the new documents with an older and wiser lawyer. The following advice, however, is mine alone.

I am glad to say that, for the most part, the terms of the bill and the constitution are excellent. They confirm that we shall continue to reside in a parliamentary democracy under a constitutional monarchy. The independence of our judiciary and the rule of law continue to be guaranteed as does our respect for human rights and equality. In these respects, there is no doubt that this document describes the country in which we all aspire to live. These do not imply any changes to the status quo and I commend these terms to you without hesitation.

As a lawyer, however, I have to study the documents closely as to any difficulties to which they may give rise in the future. At this stage, I have at least the following reservations: In the first place, the new documentation includes the repeal of the Act of Union, which implies separation from the United Kingdom. That appears to follow from the outcome of the referendum. It is just unfortunate that the referendum made no reference either to the UK or to separation. Some may say that the Act of Union itself, at article 18, guaranteed a degree of independence and that independence is not necessarily inconsistent with membership of the UK as it is not, apparently, with membership of the European Union. Hopefully, this is no more than a legalistic quibble which will not give rise to any difficulties in the future.

Secondly, the constitution specifies that, in Scotland, the people are sovereign. However, there is no mechanism for people in Scotland to exercise sovereignty and it is clear from other terms that sovereignty lies with the Scottish Parliament. That is only to be expected. For example, if the people of Scotland wished to reject the terms of the bill and the constitution as now proposed, there is, nevertheless, nothing to stop the Scottish Parliament from enacting these documents into law. Certainly, the people of Scotland, at general elections, are able to change the Scottish Government and the membership of the Scottish Parliament but the parliament is able to change these rules also. My only observation here is to ask why the document includes the statement that the people are sovereign when, clearly, it is parliament which is sovereign? There is simply no mechanism for the will of the people to overcome the will of parliament.

Thirdly, I have to point to an element in the draft constitution which entails a complete departure from the terms of the referendum agreement and for which there is no basis for inclusion in the constitution. This is the provision for Scottish nuclear disarmament. There is no doubt that very many people would consider that to be a very good thing. At the same time, just as many people would consider it to be a very bad thing. It is not appropriate for me to express any views either way. What I can say is that there is no evidence of any such national consensus or agreement as to justify the incorporation of this condition in the constitution. While a constitution should comprise, as far as possible, timeless and generally uncontested truths, nuclear disarmament could not be said to fall within that category.

I have to recommend the rejection of the current documentation for that reason. Yours sincerely, Michael Sheridan

• Michael Sheridan is secretary of SLAS www.scottishlawagents.org