Michael Kelly: Constitution no guarantee of rights

There are many reasons why an unwritten constitution is a far more effective way to ensure justice in the UK, writes Michael Kelly

An unwritten constitution keeps the ultimate decisions in the hands of elected politicians. Picture: Robert Perry

Nicola Sturgeon came up with another election promise yesterday. Filling out the vacuous White Paper which has floated off downstream without so much as a ripple on the surface of the electorate she, promised? Guaranteed? Hoped? That human rights would be strengthened in an independent Scotland by the introduction of a written constitution.

Unfortunately for their advocates written constitutions are not all they are cracked up to be. The most famous one – that of the United States – has held back liberal progress in that country since it was adopted at the end of the eighteenth century.

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It condoned slavery. Today, more than two hundred years on when views on rights have fundamentally changed it provides the authority whereby a state which commits itself constitutionally to putting the individual before that state can take its citizens’ lives with capital punishment. It enshrines the right to bear arms leading to more than 32,000 gun deaths a year and a powerful anti-democratic lobby that blocks amendment. It delayed tackling the root cause of the shambles that followed prohibition.

The unwritten British constitution on the other hand offers a flexibility that allows comfortable adjustment to the social, political and economic changes he country has undergone since the Industrial Revolution. Some changes – such as the total abolition of the hereditary principle – are ridiculously slow in coming, but those on which politicians and the public are agreed can be pushed through by a simple Act of Parliament rather than by a cumbersome process of amendment.

An unwritten constitution keeps the ultimate decisions in the hands of elected politicians who the electorate can change rather than hand it over to judges politically appointed for life who can stagger on into their dotage enforcing standards that are fifty years out of date.

But more than the formality of whatever constitution Scotland is landed with if the electorate are misguided enough to vote for independence are the principles and integrity of those who formulate any written version. It is a fair assumption that if there is a Yes vote the SNP will be charged with devising it. The SNP’s record on human and civil rights is not one to inspire confidence.

First, and we must mention it as it is fundamental to the argument, this government freed the biggest mass murderer in Scottish legal history. By executive order it over-rode the life sentence imposed by a Scottish court on al Megrahi and prevented the culmination of due process by halting the appeal procedure.

Secondly, the same Justice Secretary who let this man walk free has consistently expressed his contempt for the Supreme Court in London to make political points. Now he is bent on removing a basic safeguard against wrongful conviction by seeking to abolish a fundamental principle of Scots law – the need for corroboration. Vehemently opposed by virtually all of the Scottish legal profession and, until recently, rank and file police officers, this assault on civil rights has been instigated by the usual SNP policy tactic – find a discontented group and offer them a sop. In this case the group are those who rightly deplore the low conviction rate for rape. But, rape is a special case in which it is obvious even to the lay observer that corroboration is difficult to obtain. As such it should be treated on its own and specific amendments made to try to increase the rate of convictions.

However, it is surely no part of a liberal government’s agenda to want to increase the number of convictions generally. Of course, justice is served by a system which holds the guilty to account. But for defenders of human rights the bias must always be in favour of letting a few guilty walk free to safeguard the position of the innocent one. The sole accused is already up against a formidable array of police, prosecutor and state powers. Defenders of rights would not want to worsen his position. That’s exactly what this government wants to do.

The most blatant example of this government’s disregard for the rights and liberty of its citizens lies in the Offensive Behaviour at Football Act. This ‘mince’, to use the term applied in court, was hastily introduced as the result of a minor contretemps between Neil Lennon and Ally McCoist. As a result of the eagerness of a political Lord Advocate and the police this Act is used routinely every week against thousands of Scots – but only as attendees at football matches. It goes directly to the heart of civil rights. It significantly reduces freedom of speech. The tendency of football fans to make political statements is an irritation to those of us who simply want to watch the game. But nowhere else in the United Kingdom is it considered criminal. Despite the fact that Uefa – an organisation lacking a sound record on human rights – frowns on any non-football demonstration it cannot be refuted that sport can be a powerful weapon to protest against abuses of human rights. The Green Brigade’s recent behaviour and the destruction at Fir Park spoiled the effective case they and supporters of other clubs have been making as Fans Against Criminalisation. For one, accused are almost always granted bail to await trial up to a year in the future. But the police ask for the fan to be banned from matches until the case is heard – punishing the innocent. And if a judge should find the legislation ‘horribly drafted’ and set the accused free then the Executive can transfer that sheriff from Dundee to a remote Fort William posting where shinty generates fewer off-field problems. So much for an independent judiciary.

Given the existence of the European Convention of Human Rights to which an independent Scotland might become attached – a decision, like all the others, outwith our control – there is little need for a written constitution. Far more important is a government that respects them. Repealing this Act would indicate the SNP was prepared to match its otherwise empty promise on defending civil liberties.